author: JUSTICE SPITZ

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. TIMOTHY L. CLARK, Defendant-Appellant.
    Fourth District
    No. 4—90—0069
    Opinion filed January 17, 1991.

      Daniel D. Yuhas and Jon McPhee, both of State Appellate Defender’s Office, of Springfield, for appellant.
    John Turner, State’s Attorney, of Lincoln (Kenneth R. Boyle, Robert J. Biderman, and David E. Mannchen, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE SPITZ

delivered the opinion of the court:

This is an appeal by defendant Timothy Clark from his conviction for first-degree murder following a jury trial in the circuit court of Logan County. Defendant was sentenced to serve a term of imprisonment of 60 years.

Defendant was convicted of shooting with a revolver and killing Steven Becicka in rural Logan County on January 15, 1989. The State’s theory of the case was that defendant shot the victim to obtain money, apparently to support defendant’s cocaine usage. Defendant, on the other hand, attempted to persuade the jury that he was forced to kill Becicka by Parrish Westbrook, who threatened defendant’s life. According to defendant, Westbrook demanded the death because defendant and the victim had failed to pay a debt incurred for illicit drugs. The defendant argued he believed he was justified in killing Becicka, although that belief was unreasonable and, as a result, he should be convicted of second-degree murder rather than first-degree murder.

Several issues are raised on appeal. The first issue to be considered is whether the first-degree murder statute is unconstitutional as a violation of due process, equal protection, or separation of powers.

Initially, the State contends that defendant has waived this issue by failing to raise it in the trial court. As in People v. Wade (1989), 131 Ill. 2d 370, 546 N.E.2d 553, this court need not decide whether a constitutional challenge to a statute which is the basis of a criminal conviction can ever be waived. Even under the plain error doctrine, this court must first determine whether error had in fact occurred. Furthermore, a constitutional challenge to a statute may be raised at any time. People v. Christy (1990), 139 Ill. 2d 172, 176.

Defendant’s challenges to the constitutionality of the first-degree murder statute are three. The first of these is that the statute violates defendant’s right to due process.

Defendant’s challenge based on a due-process argument is this. The law currently defines two types of murder, first degree and second degree. (Ill. Rev. Stat. 1989, ch. 38, pars. 9 — 1, 9 — 2.) According to defendant, because the burden of demonstrating that defendant’s conduct falls into second-degree rather than first-degree murder rests upon defendant, the Illinois law creates a rebuttable presumption regarding defendant’s state of mind for murder and requires defendant to prove the intent necessary for first-degree murder was not present. Defendant recognizes that under the prior statutory definitions, voluntary manslaughter (the equivalent of the current second-degree murder) was an affirmative defense to murder. (Ill. Rev. Stat. 1985, ch. 38, pars. 9 — 1, 9 — 2; People v. Reddick (1988), 123 Ill. 2d 184, 526 N.E.2d 141.) However, instead of requiring the State to disprove the elements of second-degree murder in order to establish defendant’s guilt of first-degree murder, defendant now must prove the existence of the elements of second-degree murder in order to escape a first-degree murder conviction.

This court has recently determined that the current statutory scheme does not violate a defendant’s right to due process. (People v. Buckner (1990), 203 Ill. App. 3d 525, 561 N.E.2d 335.) Defendant’s argument in this case offers no valid reason for a retreat from the holding in Buckner.

Defendant also contends the current statutory scheme violates the equal protection clause of either the United States Constitution or the Illinois Constitution of 1970. The fourteenth amendment to the United States Constitution (U.S. Const., amend. XIV) and article I, section 2, of the Illinois Constitution of 1970 (Ill. Const. 1970, art. I, §2) require that no person is to be denied equal protection of the law. However, it is invidious discrimination against a class of individuals, and not simply inequality, which is prohibited by these equal protection clauses. (Village of Cahokia v. Wright (1973), 11 Ill. App. 3d 124, 296 N.E.2d 30, aff’d (1974), 57 Ill. 2d 166, 311 N.E.2d 153.) There does not appear to be any distinction between the analysis for assessing violations of the equal protection clauses of the United States and Illinois Constitutions. (See Bilyk v. Chicago Transit Authority (1988), 125 Ill. 2d 230, 531 N.E.2d 1.) Recently, the Illinois Supreme Court analyzed the constitutional question of equal protection provided by the Illinois Constitution as follows:

“[A] person or class of persons is denied equal protection by a State statute when the statute arbitrarily discriminates against that person or class of persons by withholding some benefit or privilege which the State gives to all others. (Bilyk v. Chicago Transit Authority (1988), 125 Ill. 2d 230, 237; Chicago National League Ball Club, Inc. v. Thompson (1985), 108 Ill. 2d 357, 367.) In this case, neither party has argued that section 4 affects a fundamental right or discriminates against a suspect class. In such circumstances, the discrimination created by the classifications imposed by the statute is arbitrary, and therefore unconstitutional, only if there is no reasonable basis for the classification — i e., if the classification of one group of persons as those to whom a certain privilege is denied is not rationally related to the statute’s legitimate goal. (Bilyk, 125 Ill. 2d at 237; Harris v. Manor Healthcare Corp. (1986), 111 Ill. 2d 350, 371; Chicago National League Ball Club, 108 Ill. 2d at 367; Illinois Housing Development Authority v. Van Meter (1980), 82 Ill. 2d 116, 120-21.) In other words, if the statute’s legitimate goal can, with comparable facility, be achieved without classifying persons, the classifications created by the statute deny some persons equal protection of the laws and render the statute invalid.
*** [T]he standard of review is ***: Are the classifications created by the statute reasonable because these classifications are rationally related to achievement of the statute’s legitimate goals in that the particular condition or attribute upon which the classifications are based constitutes a plausible distinction between the classes in view of the statute’s legitimate goals? (See Chicago National League Ball Club, 108 Ill. 2d at 368; Illinois Housing Development Authority, 82 Ill. 2d at 124-25; Hamilton Corp. v. Alexander (1972), 53 Ill. 2d 175, 179.) ***
As additional guidance in ruling on the validity of section 4, we note the presumption that legislative enactments are constitutional (e.g., Bernier v. Burris (1986), 113 Ill. 2d 219, 227); to the same purpose, statutory classifications created by the legislature ‘are presumed to be valid’ (Bilyk, 125 Ill. 2d at 236; see Illinois Housing Development Authority, 82 Ill. 2d at 122). As a result, it is for the party challenging a statute’s constitutionality — here, plaintiffs — to rebut these presumptions and prove the unconstitutional nature of the statute. Bilyk, 125 Ill. 2d at 235; People v. Walker (1988), 119 Ill. 2d 465; Bernier, 113 Ill. 2d at 227.” County of Bureau v. Thompson (1990), 139 Ill. 2d 323, 335-38.

The State argues defendant has failed to identify the class of which he is a member and which is subject to the discrimination. However, the State also argues that first-degree murder defendants are not singled out for a burden unlike those faced by other defendants, apparently assuming that defendant meant to define as a class all persons charged with first-degree murder. Other defendants are required to raise affirmative defenses such as intoxication, justifiable use of force, entrapment, compulsion, or necessity. (Ill. Rev. Stat. 1987, ch. 38, pars. 6 — 4, 6 — 3, 7 — 14, 7 — 1 through 7 — 10, 7 — 12, 7 — 11, 7 — 13.) The State also points out the procedural similarities between the case at bar and cases involving an insanity defense. Section 6— 2(e) of the Criminal Code of 1961 (Code) provides:

“(e) When the defense of insanity has been presented during the trial, the burden of proof is on the defendant to prove by a preponderance of the evidence that the defendant is not guilty by reason of insanity. However, the burden of-proof remains on the State to prove beyond a reasonable doubt .each of the elements of each of the offenses charged, and, in a jury trial where the insanity defense has been presented, the jury must be instructed that it may not consider whether the defendant has met his burden of proving that he is not guilty by reason of insanity until and unless it has first determined that the State has proven the defendant guilty beyond a reasonable doubt of the offense with which he is charged.” (Ill. Rev. Stat. 1987, ch. 38, par. 6 — 2(e).)

The second-degree murder statute (Ill. Rev. Stat. 1987, ch. 38, par. 9 — 2) sets forth the following definitions and procedure:

“(a) A person commits the offense of second degree murder when he commits the offense of first degree murder as defined in paragraphs (1) or (2) of subsection (a) of Section 9 — 1 of this Code and either of the following mitigating factors are present:
(1) At the time of the killing he is acting under a sudden and intense passion resulting from serious provocation by the individual killed or another whom the offender endeavors to kill, but he negligently or accidentally causes the death of the individual killed; or
(2) At the time of the killing he believes the circumstances to be such that, if they existed, would justify or exonerate the killing under the principles stated in Article 7 of this Code [justifiable use of force], but his belief is unreasonable.
(b) Serious provocation is conduct sufficient to excite an intense passion in a reasonable person.
(c) When a defendant is on trial for first degree murder and evidence of either of the mitigating factors defined in subsection (a) of this Section has been presented, the burden of proof is on the defendant to prove either mitigating factor by a preponderance of the evidence before the defendant can be found guilty of second degree murder. However, the burden of proof remains on the State to prove beyond a reasonable doubt each of the elements of first degree murder and, when appropriately raised, the absence of circumstances at the time of the killing that would justify or exonerate the killing under the principles stated in Article 7 of this Code. In a jury trial for first degree murder in which evidence of either of the mitigating factors defined in subsection (a) of this Section has been presented and the defendant has requested that the jury be given the option of finding the defendant guilty of second degree murder, the jury must be instructed that it may not consider whether the defendant has met his burden of proof with regard to second degree murder until and unless it has first determined that the State has proven beyond a reasonable doubt each of the elements of first degree murder.” (Ill. Rev. Stat. 1987, ch. 38, pars. 9 — 2(a), (b), (c).)

The elements of first-degree murder are as follows:

“A person who kills an individual without lawful justification commits first degree murder if, in performing the acts which cause the death:
(1) He either intends to kill or do great bodily harm to that individual or another, or knows that such acts will cause death to that individual or another; or
(2) He knows that such acts create a strong probability of death or great bodily harm to that individual or another; or
(3) He is attempting or committing a forcible felony other than second degree murder.” Ill. Rev. Stat. 1987, ch. 38, par. 9 — 1(a).

The defendant’s argument is that he has a fundamental right to fair treatment in the criminal process. (See People v. Kaeding (1983), 98 Ill. 2d 237, 456 N.E.2d 11.) The defendant concedes the State has a compelling interest in the fair, reliable, and efficient “regulation” of criminal activity. Defendant feels the procedure employed by the statutes in question creates an unnecessarily restrictive impact on defendants charged with first-degree murder. Defendant suggests the law be changed to require the State to negate the mitigating factors raised by a defendant claiming to have committed second-degree murder rather than first-degree murder.

When being subjected to the traditional equal protection tests, statutes carry a presumption of rationality and it is the defendant’s burden to demonstrate the impermissible nature of the classification created. (Kaeding, 98 Ill. 2d 237, 456 N.E.2d 11.) As in Kaeding, the instant case does not involve a statute directed at a suspect class. Nor do the statutes involved threaten a fundamental constitutional right, as further analysis will show. See Kaeding, 98 Ill. 2d 237, 456 N.E.2d 11.

According to defendant, he should not be required to prove second-degree murder to escape a presumption of guilt of first-degree murder. Furthermore, defendant contends defendants should be allowed to plead guilty to second-degree murder under appropriate circumstances.

A fair reading of the statute in question leads to the clear conclusion there is no presumption of guilt of first-degree murder which must be rebutted by defendant. Contrary to defendant’s assertions, a defendant could plead guilty to second-degree murder. Furthermore, the State could charge defendant with second-degree murder. (People v. Burks (1989), 189 Ill. App. 3d 782, 545 N.E.2d 782.) The elements of first-degree murder under the current statute are identical to the offense of murder under the prior statute. (Compare Ill. Rev. Stat. 1989, ch. 38, par. 9 — 1(a), with Ill. Rev. Stat. 1985, ch. 38, par. 9— 1(a).) The mitigating factors of second-degree murder are identical to the factors which would have reduced murder to voluntary manslaughter under the prior law. (Compare Ill. Rev. Stat. 1989, ch. 38, par. 9 — 2, with Ill. Rev. Stat. 1985, ch. 38, par. 9 — 2.) With regard to the prior law, the decision in Reddick had this to say:

“Thus, under the 1961 Code, if a defendant in a murder trial presents sufficient evidence to raise issues which would reduce the charge of murder to voluntary manslaughter, then to sustain the murder conviction, the People must prove beyond a reasonable doubt that those defenses are meritless, and must also prove beyond a reasonable doubt the statutory elements of murder.” (Reddick, 123 Ill. 2d at 197, 526 N.E.2d at 146.)

In First and Second Degree Murder in Illinois, after acknowledging the second-degree murder statute was written with the intention of retaining all substantive statutory and case law pertaining to voluntary manslaughter, the author notes the fundamental difference is that under the current statute a defendant can only be found guilty if the State first proves guilt of first-degree murder beyond a reasonable doubt and the defendant proves by a preponderance of the evidence one of the two mitigating factors. Steigmann, First and Second Degree Murder in Illinois, 75 Ill. B.J. 494 (1987).

Therefore, while there may be some difference between the prior law and the existing statutory scheme, the differences which defendant purports to rely on in seeking to have the statute declared unconstitutional do not exist. Defendant does not deny that it is within the legislature’s province to define criminal offenses. See People v. Step-pan (1985), 105 Ill. 2d 310, 473 N.E.2d 1300.

Nor is the defendant’s separation-of-powers argument persuasive. Defendant argues the State’s Attorney’s office is part of the executive branch of government and the legislature violated section 1 of article II of the Illinois Constitution of 1970 (Ill. Const. 1970, art. II, §1) by removing the State’s Attorney’s discretion in charging defendants under this statute. According to defendant, the statutes impliedly mandate that defendants be charged with first-degree murder. As previously stated, the State’s Attorney has the discretion of charging a defendant with second-degree murder. (Burks, 189 Ill. App. 3d 782, 545 N.E.2d 782.) The conclusions in Burks appear appropriate. First, it would seem to be an impermissible exercise of prosecutorial discretion for a prosecutor to charge a defendant with a crime the prosecutor knows the defendant did not commit. Second, a prosecutor may charge a defendant with second-degree murder, thereby conceding the presence of one of the mitigating factors, so that if a defendant is charged with second-degree murder and the State has proved defendant guilty of first-degree murder, the trier of fact could only find defendant guilty of second-degree murder and the defendant bears no burden of proceeding in this regard. The procedure outlined in section 9 — 2(c) of the Code only refers to the circumstances where the State charges first-degree murder and the defendant wants to reduce it to second-degree murder. Therefore, defendant’s constitutional challenges are without merit.

The second issue this court is asked to consider is whether defendant was provided ineffective assistance of counsel where evidence of compulsion was presented as a defense and no jury instruction on involuntary manslaughter was tendered. The standards for evaluating ineffective assistance of counsel are set out in Strickland v. Washington (1984), 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052, and People v. Albanese (1984), 104 Ill. 2d 504, 473 N.E.2d 1246. In order to establish ineffective assistance of counsel so as to require reversal of a conviction, the defendant must demonstrate counsel’s performance was so deficient that the defense attorney was not functioning as “counsel” as guaranteed by the sixth amendment of the United States Constitution. Defendant must show the deficient performance of counsel prejudiced the defense, deprived defendant of a fair trial, fell below an objective standard of reasonableness, and that the result would probably have been different had counsel not provided ineffective assistance. Allegations arising from matters of judgment or trial strategy will not support a claim of ineffective assistance of counsel. (People v. Murphy (1978), 72 Ill. 2d 421, 381 N.E.2d 677; People v. Spicer (1987), 158 Ill. App. 3d 699, 511 N.E.2d 235.) The decision to rely on one theory of defense to the exclusion of other theories of defense is a matter of trial strategy. (People v. Gallardo (1983), 112 Ill. App. 3d 764, 445 N.E.2d 1213.) The decision to tender an instruction regarding an included offense is also a question of trial strategy which cannot form the basis for a finding of ineffective assistance of counsel even though other counsel might have proceeded differently. See People v. LePretre (1990), 196 Ill. App. 3d 111, 552 N.E.2d 1319.

For these reasons, defendant’s contention that he was provided ineffective assistance of counsel because defense counsel failed to tender an involuntary manslaughter instruction must be rejected. Furthermore, there is no evidence which would warrant the giving of the instruction. Defendant pointed a revolver at Becicka and pulled the trigger. Defendant testified he did not intend to harm Becicka and he fired the shot using his left hand even though he is a predominantly right-handed person, without aiming. Defendant’s brief seems to indicate he did have his eyes closed, but the record could be read to indicate he closed his eyes after he fired the shot. Defendant suggests this manner of executing the victim renders the act one of recklessness. While we need not decide this, relying instead on the trial strategy reasoning, this court would be extremely reluctant to decide these facts support the giving of the involuntary manslaughter instruction.

Defendant’s second allegation of ineffective assistance of counsel is that defense counsel should not have presented a defense of compulsion since compulsion is no defense to first-degree murder. Defendant contends, therefore, that in so doing defense counsel effectively pleaded defendant guilty to first-degree murder.

The Strickland test may be set aside only when counsel entirely fails to subject the prosecutor’s case to a meaningful adversarial testing. (People v. Johnson (1989), 128 Ill. 2d 253, 538 N.E.2d 1118; People v. Hattery (1985), 109 Ill. 2d 449, 488 N.E.2d 513; People v. Weger (1987), 154 Ill. App. 3d 706, 506 N.E.2d 1072.) As the State notes, this is not such a case. In this case, defense counsel did not concede defendant’s guilt, but instead attempted to persuade the jury that defendant thought he was justified in acting as he did, although his belief was unreasonable. The fact compulsion does not constitute a legal defense to murder (People v. Gleckler (1980), 82 Ill. 2d 145, 411 N.E.2d 849) does not render counsel’s representation of defendant ineffective. The jury was not instructed regarding compulsion. The jury was, however, given an instruction concerning second-degree murder, which included a reference to acting with the unreasonable belief that circumstances justifying the use of deadly force existed. The State points out that the jury was never told that coercion or compulsion did not mitigate or reduce the offense of first-degree murder, and instead of referring to the legal inadequacy of the defendant’s theory at trial, the prosecutor’s argument focused on the unbelievability of defendant’s claim of compulsion.

It would seem defense counsel’s approach to this case was to convince the jury the defendant believed he was justified in using deadly force because of the compulsion even though that belief was unreasonable. Under the circumstances of this case, regardless of the legal viability of the defendant’s position — which this court need not determine in order to dispose of this appeal — the jury could have found defendant guilty of second-degree murder instead of first-degree murder had it believed defendant’s version of the incident. As a result, there was no ineffective assistance of counsel.

The third issue is whether the trial court erred by refusing to give defendant’s tendered instruction pertaining to accomplice testimony. Defendant characterizes the tendered instruction as a modification of Illinois Pattern Jury Instruction 3.17 (Illinois Pattern Jury Instructions, Criminal, No. 3.17 (2d ed. 1981) (hereinafter IPI Criminal 2d)). IPI Criminal 2d No. 3.17 states:

“When a witness says he was involved in the commission of a crime with the defendant, the testimony of that witness is subject to suspicion and should be considered by you with caution. It should be carefully examined in light of the other evidence in the case.” (IPI Criminal 2d No. 3.17, at 24.)

The instruction, as tendered, referred to a witness who may have been involved in the commission of a crime rather than one who admitted to being involved.

In People v. Hunt (1981), 99 Ill. App. 3d 958, 426 N.E.2d 568, an instruction similar to that tendered by defendant in this case was rejected. The court in Hunt found no justification for telling a jury to view the testimony of a one-time suspect who had never been charged with an offense with the same suspicion, caution and circumspection given the testimony of an admitted criminal accomplice.

The case at bar creates a somewhat closer question. The witness in question is Parrish Westbrook, whom the defendant attempted to implicate as being the person who compelled defendant to shoot the victim.

Westbrook was charged by information with the first-degree murder of Becicka. Following a preliminary hearing, the court found probable cause to hold Westbrook for trial on the charge. At defendant’s trial, Westbrook informed the court that his attorney had advised him not to give any testimony at defendant’s trial. After the defense began its case, Westbrook waived his fifth amendment privilege. The State dismissed the charge of murder against Westbrook, but no grant of immunity was offered.

Westbrook testified he and defendant became friends while the two were incarcerated in the McLean County jail. Westbrook denied he had any gang affiliations or ever sold or attempted to sell drugs to defendant. Westbrook denied knowing Becicka or ever having sold him drugs. He stated he was in Memphis, Tennessee, on the day of Becicka’s death.

Defendant testified he knew Westbrook to be affiliated with the Black Gangster Disciples street gang. According to defendant, he and Becicka owed Westbrook money for drugs and, on January 15, 1989, Westbrook ordered defendant, at gunpoint, to shoot Becicka.

Detective Sergeant Terry Sabo of the Logan County sheriff’s office testified the focus of his investigation was to check out defendant’s story as completely as possible to confirm Westbrook’s involvement. Other than defendant’s own statements, no evidence of involvement by Westbrook was found. In addition, defendant gave several varying versions of the incident to the police before implicating Westbrook. Defendant even admitted he lied by implicating other persons who were not involved.

Defendant would have this court decide that, because Westbrook was charged with the offense, defendant is entitled to a modified version of the accomplice-witness instruction. However, that is not the law. The charges may result from mistaken identity, and merely having been charged does not render the witness an accomplice.

In People v. Cobb (1983), 97 Ill. 2d 465, 455 N.E.2d 31, the Illinois Supreme Court, relying on its prior decisions in People v. Robinson (1974), 59 Ill. 2d 184, 319 N.E.2d 772, People v. Nowak (1970), 45 Ill. 2d 158, 258 N.E.2d 313, and People v. Hrdlicka (1981), 344 Ill. 211, 176 N.E.308, ruled that the trial court erred by refusing to give the tendered accomplice instruction. The court noted that the test to determine the propriety of giving the instruction is whether there exists probable cause to believe the witness was guilty either as a principal or on an accountability theory. The court also noted that merely because the witness testified she was not “fully aware” the defendants committed the crime until the following day does not support the refusal of the trial court to give the instruction when there is sufficient evidence in the record to justify her indictment as a principal or on an accountability theory.

Similarly, in People v. Barker (1979), 78 Ill. App. 3d 686, 397 N.E.2d 552, this court held the failure to give the instruction was reversible error. In Barker, defendant’s wife was a principal prosecution witness.

“She had originally been charged with the same crimes as the defendant but her charges had been dismissed in exchange for her testimony against her husband. Mrs. Barker testified that she had married the defendant on November 4, 1978, and that they had resided in an apartment located near the Salvation Army store. She recalled that approximately three or four weeks after being married, she had looked out the window and had seen her husband behind the Salvation Army store standing on top of garbage cans. Shortly after this she heard a ‘ticking’ sound. That same evening the defendant brought to the apartment the brown vinyl rug previously identified by Burnett. She also received several items of clothing from the defendant. Mrs. Barker testified that approximately a week later she returned these clothes to the store.” (Barker, 78 Ill. App. 3d at 687, 397 N.E.2d at 554.)

After recognizing that an accomplice is a person who could be indicted as a principal or an accessory, this court concluded that even though there was no basis on the evidence presented at trial to determine defendant’s wife to be an accomplice, the instruction should nevertheless have been given based on the facts (1) she was charged as a codefendant, (2) at a preliminary hearing probable cause to charge her was found to exist, and (3) the charges were dropped in return for her testimony.

These cases relied on by defendant can be distinguished on several grounds. First, in spite of this court’s statement to the contrary in Barker, in both Cobb and Barker it is clear the facts testified to by the witness herself could support a charge on an accountability theory, if not as a principal. Under the current law, accountability exists when:

“(a) Having a mental state described by the statute defining the offense, [a person] causes another to perform the conduct, and the other person in fact or by reason of legal incapacity lacks such a mental state; or
(b) The statute defining the offense makes him so accountable; or
(c) Either before or during the commission of an offense, and with the intent to promote or facilitate such commission, he solicits, aids, abets, agrees or attempts to aid, such other person in the planning or commission of the offense. However, a person is not so accountable, unless the statute defining the offense provides otherwise, if:
(1) He is a victim of the offense committed; or
(2) The offense is so defined that his conduct was inevitably incident to its commission; or
(3) Before the commission of the offense, he terminates his effort to promote or facilitate such commission, and does one of the following: wholly deprives his prior efforts of effectiveness in such commission, or gives timely warning to the proper law enforcement authorities, or otherwise makes proper effort to prevent the commission of the offense.”
(Ill. Rev. Stat. 1989, ch. 38, par. 5 — 2.)

It seems at least arguable that the witness in Barker could have been charged with participating in the crime and the requisite mental state could be inferred from her failure to thwart the crime earlier than she did. Unless there was additional evidence not disclosed in the opinion, it is obvious defendant’s wife was given the benefit of the doubt. In the case at bar, the witness never testified he was in any way involved in the offense. And, except for defendant’s assertions, there was no other evidence of Westbrook’s involvement. Because of the circumstances, defendant’s assertions could be considered unreliable, not only because defendant is on trial for the crime, but also because of the numerous inconsistent versions of the incident he related to the police. At the time of this trial, there does not appear to have been sufficient probable cause to uphold a charge against Westbrook.

Second, in both Cobb and Barker the witness testified so as to inculpate the defendants. In this case, however, the witness’ testimony rebuts the anticipated defense of compulsion and in no way inculpates defendant. Westbrook is merely testifying to his noninvolvement.

Third, in neither Cobb nor Barker did the court consider a modified IPI instruction which misstated the law, as in the case at bar. The giving of a nonpattern jury instruction is a matter resting in the discretion of the trial court. (People v. Hanson (1985), 138 Ill. App. 3d 530, 485 N.E.2d 1144.) The refusal to give the tendered instruction was not an abuse of discretion.

The final issue is whether defendant’s sentence was excessive. Defendant was sentenced to a term of imprisonment of 60 years. First-degree murder is an offense for which the convicted offender cannot be given probation. (Ill. Rev. Stat. 1989, ch. 38, par. 1005 — 5— 3(c)(2)(A).) The sentence authorized for first-degree murder is set forth in section 5 — 8—1(a)(1) of the Unified Code of Corrections. (Ill. Rev. Stat. 1989, ch. 38, par. 1005 — 8—1(a)(1).) That section provides as follows:

“(1) for first degree murder, (a) a term shall be not less than 20 years and not more than 60 years, or (b) if the court finds that the murder was accompanied by exceptionally brutal or heinous behavior indicative of wanton cruelty or that any of the aggravating factors listed in subsection (b) of Section 9 — 1 of the Criminal Code of 1961 are present, the court may sentence the defendant to a term of natural life imprisonment, or (c) if the defendant has previously been convicted of first degree murder under any state or federal law or is found guilty of murdering more than one victim, the court shall sentence the defendant to a term of natural life imprisonment.” Ill. Rev. Stat. 1989, ch. 38, par. 1005-8-l(a)(l).

Defendant argues the trial court failed to properly consider the defendant’s prospects for rehabilitation. Defendant was 26 years old at the time of sentencing. At the sentencing hearing, defendant expressed remorse for what had happened to Becicka and the pain it had caused Becicka’s family. He stated that while in prison he planned to further his education with the aim of someday being beneficial to society in some way. Defendant acknowledged he had a substance-abuse problem and indicated his attempts to overcome it. Both he and Becicka had smoked marijuana the day of Becicka’s death.

Twelve letters were presented to the trial judge on behalf of defendant. All of the letters attested to defendant’s good character and connection to the community, many expressing surprise that defendant was involved in a crime of violence. Daniel Scott Hoerner, a long-time friend of defendant’s, testified he did not feel defendant could have murdered another human being.

However, the defendant’s potential for rehabilitation is not the only factor to be considered by the trial court. The Illinois Constitution requires that criminal penalties be determined both according to the seriousness of the offense and with the objective of restoring the defendant to useful citizenship. (Ill. Const. 1970, art. I, §11.) In making such a determination, the trial court is to consider the statutory factors in aggravation and mitigation. Ill. Rev. Stat. 1989, ch. 38, pars. 1005-5-3.2, 1005-5-3.1.

In sentencing the defendant, the trial judge stated he was considering the evidence presented at trial, the presentence report, the letters written in defendant’s behalf except insofar as they related an opinion on the facts of this case, the evidence presented at the sentencing hearing, and the arguments of counsel regarding sentencing alternatives. The judge noted the defendant had a significant history of criminal activity considering his age, and had killed a person who had been a friend for a number of years. The trial court found that the sentence was necessary to deter others from committing the same crime, defendant’s criminal conduct was not unlikely to recur, and defendant’s character and attitude indicated he was likely to commit another offense. The court noted the absence of the mitigating factor that the defendant did not contemplate that his conduct would cause or threaten serious physical harm. While rejecting the prosecutor’s request for a natural-life sentence, the trial court nevertheless imposed the 60-year term, finding that a lesser term would deprecate the seriousness of the defendant’s conduct and be inconsistent with the ends of justice.

The defendant subsequently filed a motion to reduce or reconsider the sentence imposed alleging, among other things, that the trial court had failed to consider his rehabilitative potential and to sufficiently consider his “demeanor, credibility, intelligence, moral character, social environment, background, education, and age.” In denying this motion, the trial judge again stated he had considered the evidence at trial, the presentence report, the sentencing alternatives, and “other matters.” The judge rejected the claim that he had not considered the defendant’s demeanor and credibility. The judge expressly stated he had considered the defendant’s rehabilitative prospects and concluded that based on the totality of the circumstances he continued to feel that the 60-year term was the appropriate sentence.

With regard to adult convictions and probation history, the defendant’s presentence report had this summary:

“Adult Convictions: DATE OFFENSE DISPOSITION 11 — 17—86 Reckless Driving 12 months McLean County, Court Illinois, Supervision 85-15549 $300.00 Fine, Court Costs
07-09-87
Illegal Possession $100.00 Fine, of Alcohol by Court Costs Consumption McLean County, Illinois 87 — OV—73
03-06-89
Burglary McLean County, Illinois 88 — CF—414
48 months Probation, 178 days in Jail, Restitution in amount of $3,293.48, Court Costs
*The defendant also has four other traffic convictions since 1988, all resulting in Fine and Court Costs.
Prior Probation History:
The defendant was sentenced to one year Court Supervision on November 17, 1986 in McLean County, Illinois for the offense of Reckless Driving. On October 7, 1988 a Rule to Show Cause was filed in McLean County, Illinois for the defendant’s failure to pay fine and costs. This case of supervision is still active due to the non-payment of the fine and costs.
The defendant was sentenced to a term of 48 months Probation on March 6, 1989 in McLean County, Illinois, for the offense of Burglary. The defendant does not have a probation history on this case. The defendant has been in custody in Logan County, Illinois since January 20, 1989 on the instant offense.”

Unless it represents a clear abuse of the trial court’s sentencing discretion, a sentence will not be reversed on appeal. (People v. Cox (1980), 82 Ill. 2d 268, 412 N.E.2d 541.) There is a presumption that in imposing sentence the trial court considered the mitigating evidence offered. This presumption may be overcome if there is some statement in the record, other than the imposition of the sentence, which indicates the trial court failed to consider such evidence. While such evidence must be considered, the trial court need not believe it if there is other evidence to refute the evidence offered in mitigation. (People v. Bradney (1988), 170 Ill. App. 3d 839, 525 N.E.2d 112.) Furthermore, defendant’s rehabilitative potential and the goal of restoring defendant to useful citizenship need not be accorded more weight than the seriousness of the offense and other relevant factors. (People v. Compton (1990), 193 Ill. App. 3d 896, 550 N.E.2d 640.) The primary responsibility for striking the proper balance between rehabilitative potential and the seriousness of the offense lies with the trial court. (People v. Waud (1977), 69 Ill. 2d 588, 373 N.E.2d 1.) Moreover, a reviewing court will not disturb the sentence imposed merely because the members of the reviewing court might have imposed a different sentence. (People v. Steppan (1985), 105 Ill. 2d 310, 323, 473 N.E.2d 1300, 1307.) As a result, it cannot be said that the sentence imposed was the result of an abuse of discretion.

For the foregoing reasons, the judgment of the circuit court of Logan County is affirmed.

Affirmed.

McCULLOUGH and KNECHT, JJ., concur.


source: Caselaw Access Project

author: PRESIDING JUSTICE LUND

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JOHN GARRETT, Defendant-Appellant.
    Fourth District
    No. 4—90—0184
    Opinion filed January 17, 1991.

      Daniel D. Yuhas and Lawrence J. Essig, both of State Appellate Defender’s Office, of Springfield, for appellant.
    Chris E. Freese, Special Prosecutor, of Nessler, Freese & Elmore, Ltd., of Sullivan (Kenneth R. Boyle, Robert J. Biderman, and James Majors, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   PRESIDING JUSTICE LUND

delivered the opinion of the court:

Defendant John Garrett was convicted in the circuit court of Douglas County of criminal sexual assault (Ill. Rev. Stat. 1989, ch. 38, par. 12 — 13(a)(2)) by jury trial. The information charged the defendant, “knowing that D.S.H. was unable to give knowing consent, knowingly committed an act of sexual penetration with D.S.H.” Defendant appeals from the conviction, contending there was reversible error because the State’s Attorney of Douglas County interviewed a witness for the State after the State’s Attorney had been removed from the case because of a conflict of interest.

The defendant’s original public defender withdrew from the defense prior to trial and was appointed an assistant State’s Attorney. When the State’s Attorney suggested a conflict of interest was created by the hiring of the defense counsel, the prosecutor was first replaced by special prosecutor Bruce Ratcliffe. On January 12, 1990, Bruce Ratcliffe was removed as special prosecutor because of a conflict. Attorney Chris Freese was appointed as special prosecutor on January 16, 1990, and notice of Freese’s appointment was mailed to him on that date. On January 16, 1990, regardless of the order replacing him, the State’s Attorney of Douglas County interviewed Rick Crist, who became one of the two trial witnesses for the State.

On January 22, 1990, defense counsel filed a motion to suppress all evidence gathered by the Douglas County State’s Attorney’s office from December 13, 1989, to January 22, 1990, “including, but not necessarily limited to, the testimony of one Rick Crist.” The motion was heard on January 22, 1990, and evidence was given by the State’s Attorney from which the trial court found there was no “real prejudice to the defendant” and “Crist’s testimony was not in fact solicited by the office of the State’s Attorney.” The motion was denied.

Crist’s testimony at trial related to D.S.H.’s condition, use of alcoholic beverages, and purchase of alcoholic beverages in a tavern where he worked during the evening before the violation. The testimony was given for purposes of supporting other evidence of the victim’s inability to give a knowing consent. D.S.H. testified that, after considerable consumption of beer, she passed out on the front seat of a motor vehicle and was later awakened to find the defendant on top of her with his penis in her vagina.

The defendant contends the interview of Crist by the State’s Attorney was an ethical violation and resulted in reversible error. Our examination of the record leads to the conclusion that while the interview was a technical violation of ethics, it was inadvertent and of no harm. The undisputed testimony of the State’s Attorney indicated Crist came into the State’s Attorney’s office unexpectedly and volunteered his account of D.S.H.’s drinking. The new assistant State’s Attorney had not discussed the case with the State’s Attorney, and there was no apparent violation of the defendant’s attorney-client relationship. The State’s Attorney immediately notified the defendant’s new counsel of the Crist meeting. Considering the appointment of a new special prosecutor from another county on the same date as the Crist interview, and the unexpected visit by Crist, we, while acknowledging the mistake, do not condemn the State’s Attorney’s conduct. It appears that he otherwise did everything possible to protect the defendant’s rights.

We need not look to latter-day treatises on the ethical obligation of attorneys to their present and past clients. Our supreme court in People v. Gerold (1914), 265 Ill. 448, 107 N.E. 165, made the following statements:

“When he has once been retained and received the confidence of a client he cannot enter the service of those whose interests are adverse to that of his client or take employment in matters so closely related to those of his client or former client as in effect to be a part thereof. *** It is as much the duty of prosecuting attorneys to see that a person on trial is not deprived of any of his statutory or legal rights as it is to prosecute him for the crime with which he may be charged. *** The members of the profession must have the fullest confidence of their clients. If it may be abused the profession will suffer by the loss of the confidence of the people. *** [I]f an attorney knows anything prejudicial to a former client he ought not to accept employment against him where such prejudicial information can be used against him.
* * *
*** No matter if his intentions were of the best, he placed himself in a position to be open to the charge of betraying the professional confidence of his client. The law will not permit this.” Gerold, 265 Ill. at 477-80,107 N.E. at 177-78.

Our court reversed a probation violation when the original defense counsel, who became State’s Attorney, prosecuted a petition to revoke probation. (People v. Curry (1971), 1 Ill. App. 3d 87, 90-91, 272 N.E.2d 669, 672-73.) We also recognize State v. Cooper (1980), 63 Ohio Misc. 1, 409 N.E.2d 1070, held that a prosecution by the prosecutor’s office (which had hired defendant’s prior defense counsel) would be improper and required the appointment of a special prosecutor.

While we agree with both Curry and Cooper, we find the present case factually different. Here, the State’s Attorney did not participate in the criminal trial. There is no indication the special prosecutor had any contact with the assistant State’s Attorney or the State’s Attorney. Crist was a witness who appeared after the assistant State’s Attorney represented defendant, and the nature of his testimony did not relate conduct of the defendant. The volunteered interview should have been referred to the special prosecutor, but the understandable slip-up does not justify, in the absence of prejudice to the defendant, prohibiting Crist’s testimony.

Affirmed.

GREEN and KNECHT, JJ., concur.


author: JUSTICE STEIGMANN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. CONNOR K. GORMAN et al., Defendants-Appellees.
    Fourth District
    No. 4—90—0177
    Opinion filed January 17, 1991.

      Thomas J. Difanis, State’s Attorney, of Urbana (Kenneth R. Boyle, Robert J. Biderman, and David E. Mannchen, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
    Arthur M. Lerner, of Lerner & Kirchner, of Champaign, for appellee Connor K. Gorman.
    George F. Taseff and Harold M. Jennings, both of Bloomington, for appellee Glenn R. Schicker.
    J. Steven Beckett, of Beckett & Crewell, of Champaign, for appellee Aleck A. Zavalis.
   JUSTICE STEIGMANN

delivered the opinion of the court:

Defendants Connor Gorman, Glenn Schicker, and Aleck Zavalis were charged with two counts of arson (Ill. Rev. Stat. 1989, ch. 38, par. 20 — 1) arising from the September 24, 1989, fire at Memorial Stadium on the campus of the University of Illinois (University). The three defendants were individually questioned by University police department investigators, but none of them was given the Miranda warnings prior to being interviewed. The trial court granted defendants’ motions to suppress the statements they made in response to this questioning. The State appeals the suppression order.

We affirm.

I. Facts

On September 24, 1989, a fire at Memorial Stadium significantly damaged the Astroturf playing field. An accelerant had been used to ignite the Astroturf surface, resulting in a fire which caused over $600,000 in damage.

On October 6, 1989, University police received a tip suggesting that Zavalis and two other unnamed persons were responsible for the fire. Acting on this tip, University police investigators Michael J. Costa and Steven Trame went to Zavalis’ apartment on October 9, 1989, to interview him concerning the fire. Zavalis was out of town on that date, so Costa and Trame returned to the apartment at approximately 8 a.m. the next morning. They knocked on the door, and it was answered by Schicker. Because Schicker matched the description of one of the unnamed persons, Costa immediately viewed Schicker as a suspect. Costa and Trame identified themselves as University police officers and asked the whereabouts of Zavalis. Schicker told them that Zavalis had left the apartment and inquired as to the subject matter of their visit. The investigators declined to tell Schicker the nature of their business. Shortly thereafter, Zavalis returned to the apartment. The investigators were again asked the nature of their business, and they again declined to answer. They told Schicker and Zavalis that they wished to talk with all the residents of the apartment. Schicker then left the living room, went upstairs, and woke two other roommates, Kevin Abel and Gorman. A fifth roommate, Brian Pianfetti, whose bedroom was adjacent to the living room, also entered the apartment living room. When Gorman entered the living room, Costa also viewed him as a suspect because he matched the description of the other unnamed individual.

When all five roommates were assembled in the living room, the investigators stated they were interested in interviewing them at the University police station in Urbana. Pianfetti asked the investigators the nature of their business, and again Costa and Trame declined to tell them, stating that they preferred instead to inform the students at the police station. Schicker told the investigators that he had an exam that morning, so he arranged to meet them at 10:30 a.m. instead. Abel notified the investigators that he had a term paper to finish, so he arranged to meet them at the police station at 2 p.m. that afternoon.

The investigators asked the remaining three students whether they were available for an interview that morning. The testimony at the hearing on the motion to suppress was in conflict regarding Cos-ta’s response. Zavalis testified that he told the investigators he had to go to class and that Costa told him class could wait. Costa testified that he could not remember telling Zavalis that he should miss his class.

Zavalis, Gorman, and Pianfetti then went with Costa and Trame to the University police station. The students were transported to the station in an unmarked police car. The police car contained a police radio, but did not have a cage between the front and backseats or backdoors that locked automatically. The students were not handcuffed and rode together in the backseat of the car. Costa and Trame gave different explanations for why the students were encouraged to ride with them to the station. Costa testified that he offered the students a ride because of the limited availability of parking on campus. Trame testified that Costa offered the students a ride because “it was cold out that morning and it was quite far away” from the apartment to the police station. Zavalis and Gorman testified that they did not believe they had any choice but to go to the station with the officers.

At the station, the students were separated; Pianfetti and Gorman were placed in one room while Zavalis was placed in Lieutenant Kristal Fitzpatrick’s office. Fitzpatrick’s office measured approximately six feet by eight feet and contained a desk and chairs. At one point, while waiting for the interviews to begin, Zavalis briefly left the office, but was told by a University police officer to return to the office and sit down.

Zavalis was interviewed by Costa. Costa entered Fitzpatrick’s office, closed the door, and sat in a chair next to Zavalis. He told Zavalis that he could leave at any time, but Zavalis testified that his impression was that he was not free to leave. Fairly early in the interview, Zavalis told Costa that he might be interested in obtaining a lawyer. Zavalis testified that Costa asked him, “Are you sure you want to talk to a lawyer?” Costa reported that he advised Zavalis that, “If he wanted to contact a lawyer at this time he was free to do so.” Zavalis decided to continue the interview. Subsequently, Zavalis made the statements to Costa that were the subject of his motion to suppress. Following the interview, the police drove Zavalis back to his apartment.

Trame interviewed Gorman in a room measuring six feet by nine feet. The room’s sliding door was closed, but did not shut all the way. Trame sat across from Gorman during the interview. He told Gorman that he was not under arrest and that he was free to go after the interview was over, but not until it was over. Gorman at first denied involvement in the stadium fire, at which point Trame left the room. Trame returned five minutes later and told Gorman that fingerprints on matches, a football stadium goal post, and a charcoal lighter fluid container linked him and Zavalis to the fire. Trame also suggested a hypothetical scenario of two or three college students getting drunk and mischievously setting fire to the Astroturf by mistake. Gorman requested to leave the room and to talk to his roommates, but Trame told Gorman that his roommates were being interviewed and that he would not be allowed to talk to them at that time. Trame again encouraged Gorman to confess, adding that it was probably the fault of the company that manufactured the turf that the stadium carpet burned. Trame again suggested a scenario of college pranksters whose fun got out of control. At that point, Gorman made the statements that were the subject of his motion to suppress.

After Gorman made his inculpatory statements, Trame left the interview room and informed his supervisor, Fitzpatrick, of what Gorman had said. Soon thereafter, Fitzpatrick or some other officer contacted the Champaign County State’s Attorney’s office to initiate the filing of charges. A written statement was prepared by Trame and signed by Gorman. Gorman elected to walk home after being offered a ride back to his apartment.

Following his scheduled class, Schicker dropped his books off at his apartment and proceeded to walk to the police station. On his way, he met with Gorman, who was returning from his interview. Gorman informed Schicker that he and Zavalis had confessed. Schicker arrived at the police station at approximately 10:30 a.m. and was directed to Fitzpatrick’s office by Trame. Schicker testified that he did not believe he could leave the station if he wanted to because “there were police all around” and that he “had to be there.” Schicker’s interview took place in Fitzpatrick’s office with the door closed, Costa sitting behind the desk, and Trame standing behind Schicker.

At the hearing on the motion to suppress, conflicting testimony regarding Schicker’s interview was presented. Costa testified that Schicker immediately said, “I know what it’s about, I want to confess.” Schicker denies making this admission and claims that he made a statement only after being assured that he would not be arrested “no matter what.” There is dispute as to what stage of the interview Costa provided Schicker with this information. Costa testified that he told Schicker it was a voluntary interview at the interview’s outset. Schicker claims that these admonitions were given well after the interview had started. Costa admitted that he told Schicker that Schicker was not under arrest and would not be put under arrest at any time after the interview. Schicker testified that he did not believe he was free to leave.

Schicker made inculpatory statements during this interview. Costa wrote out a statement that Schicker reviewed and edited. Following the interview, Costa informed Schicker that warrants were to be issued the next day. Schicker testified that he thought Costa was going to provide him with a copy of the statement he had just made and that Costa had promised not to arrest him at any time.

On October 11, 1989, Gorman, Schicker, and Zavalis were arrested and charged with two counts of arson.

All three defendants moved to suppress the statements given during the October 10 interviews. The trial court heard evidence and arguments on the motions and concluded that the October 10 interviews were custodial interrogations which required the officers to inform defendants of their rights under Miranda v. Arizona (1966), 384 U.S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602. The court ruled that the defendants were clearly the focus of a criminal investigation, that they were separated and placed in a custodial environment, and that a coercive atmosphere existed at the University police station. The court concluded that in the absence of the Miranda warnings, defendants’ motions to suppress should be granted, and stated the following:

“We then have, at one time or another, the Defendants either going in the car or arriving later at the police department, depending on which Defendant you’re talking about, and the matter progresses. It’s a fact that a number of times, probably with respect to each Defendant, each was told that this was voluntary on their part and that they were not under arrest. Apart from that, however, we have to look at certain other things, certain other things that were said and other nonverbal conduct. We have covered the best of what was said about when they would be free to leave.
I conclude from everything before me, including the exhibits here, that it was likely, they were not told, or certainly not told in a way that they would ever understand, that they could leave at any time. But the logical conclusion even from Costa’s own words, is that they were told, insofar as being able to leave, that that would be only after the interviews took place.
There was the business about ‘they would not be arrested at any time’ that’s been, tried to be characterized as meaning that they would not be arrested right after the interview. But when you look at everything here, including the words of the officers, and I have been struck by the transcript, the language in the transcript from the previous hearing [held on January 5, 1990], it begins to mean more and more when you look at it, that any reasonable person would understand it to mean that you will not be arrested at any time, period. I could go into certain other subtle things. The business of the fingerprints, the conversation that came up about the lawyer with respect to Mr. Zavalis, et cetera. Not controverted, that what was stated was something to the effect of ‘Are you sure you really want to have a lawyer?’ Subtle things here. This thing began to become coercive, and it continued to become coercive throughout. When I put it all together, I don’t like the atmosphere that all of this took place under.
* * *
I have to conclude they’re in custody under the criteria that the law applies to these kinds of cases.”

II. Analysis

The State argues on appeal that the University police were not required to give the Miranda warnings because the defendants’ interviews were not custodial interrogations. The State claims that the defendants were at the police station voluntarily, were told that they were not under arrest, and were told that they could leave at any time.

The issue before this court is whether to uphold the trial court’s suppression order. A reviewing court may not disturb a suppression order unless the trial court’s decision is manifestly erroneous. People v. Brown (1990), 136 Ill. 2d 116, 125, 554 N.E.2d 216, 220; People v. Neal (1985), 109 Ill. 2d 216, 218, 486 N.E.2d 898, 899.

Custodial interrogation is questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom in any significant way. (Miranda, 384 U.S. at 444, 16 L. Ed. 2d at 706, 86 S. Ct. at 1612; Brown, 136 Ill. 2d at 124, 554 N.E.2d at 219.) The determinative test is whether there is a formal arrest or a restraint on freedom of movement of the degree associated with a formal arrest. (California v. Beheler (1983), 463 U.S. 1121, 1125, 77 L. Ed. 2d 1275, 1279, 103 S. Ct. 3517, 3520; Brown, 136 Ill. 2d at 124, 554 N.E.2d at 219.) As the court noted in Brown, another way of stating this test is to ask whether a reasonable man, innocent of any crime, would believe himself to be in custody if he were in defendant’s position. (Brown, 136 Ill. 2d at 125, 554 N.E.2d at 220.) Several factors discussed in Brown should be considered in determining whether an interrogation is custodial: the location, length, mood, and mode of the interrogation; the number of police officers present; any indicia of formal arrest or evidence of restraint; the intentions of the officers; and the extent of knowledge of the officers and the focus of their investigation. (Brown, 136 Ill. 2d at 124-25, 554 N.E.2d at 220.) The trial court should examine and weigh these factors, along with the credibility of the witnesses, as it decides the motion to suppress evidence. Brown, 136 Ill. 2d at 125, 554 N.E.2d at 220.

We begin our analysis by addressing a threshold issue that is implicit in defendants’ motions to suppress their statements: Was there evidence before the trial court of a subjective belief on the part of the defendants that they were in custody during their interrogations? This threshold issue is not often acknowledged because defendants bringing motions to suppress typically testify as did defendants in the present case, that they believed themselves to be in custody. However, the case could arise where no such testimony is offered. This issue may be clarified by asking the following: In deciding a motion to suppress, would the trial court have to examine the objective indicia of custody discussed in Brown had the defendant at the hearing on the motion testified that at all times he believed that he was not in custody and that he was free to leave the company of the police interrogators whenever he wished? See, e.g., People v. Urban (1990), 196 Ill. App. 3d 310, 314, 553 N.E.2d 740, 742 (finding the State’s contention that defendant was free to leave at any time unrebutted by defendant).

Each of the three defendants in the present case testified that he believed he was in custody at the time he made the statements that are the subject of his motion to suppress. Accordingly, the requirement of evidence on this threshold issue has been met, and we proceed with the rest of our analysis, beginning with a discussion of interrogations conducted in police stations.

A. Police Station Cases

Merely because a suspect is questioned at the police station does not mean that he is in custody for purposes of Miranda. In Oregon v. Mathiason (1977), 429 U.S. 492, 50 L. Ed. 2d 714, 97 S. Ct. 711, the United States Supreme Court held that questioning by the police does not per se constitute custodial interrogation. The Court stated as follows:

“Such a noncustodial situation is not converted to one in which Miranda applies simply because a reviewing court concludes that, even in the absence of any formal arrest or restraint on freedom of movement, the questioning took place in a ‘coercive environment.’ Any interview of one suspected of a crime by a police officer will have coercive aspects to it, simply by virtue of the fact that the police officer is part of a law enforcement system which may ultimately cause the suspect to be charged with a crime. But police officers are not required to administer Miranda warnings to everyone whom they question. Nor is the requirement of warnings to be imposed simply because the questioning takes places in the station house, or because the questioned person is one whom the police suspect. Miranda warnings are required only where there has been such a restriction on a person’s freedom as to render him ‘in custody.’ ” Mathiason, 429 U.S. at 495, 50 L. Ed. 2d at 719, 97 S. Ct. at 714.

If a person goes to the police station on his own initiative, there is doubt as to whether he is in custody. (See 1 W. LaFave & J. Israel, Criminal Procedure §6.6(d), at 494 (1984).) Similarly, under the reasonable innocent-person test, a suspect who is driven to the police station by police officers is not necessarily in custody. (People v. Finklea (1983), 119 Ill. App. 3d 448, 453, 456 N.E.2d 680, 683.) However, even if a suspect goes to the police station voluntarily or at the invitation of the police, the circumstances may eventually become custodial in nature. People v. Wipfler (1977), 68 Ill. 2d 158, 168-70, 368 N.E.2d 870, 874-75; Finklea, 119 Ill. App. 3d at 453, 456 N.E.2d at 683; People v. Bradford (1981), 97 Ill. App. 3d 998, 1001, 423 N.E.2d 1179, 1183 (finding proper use of Miranda “when the interview ceased being investigatory and became custodial interrogation”); People v. Mrozek (1977), 52 Ill. App. 3d 500, 507, 367 N.E.2d 783, 787 (finding defendant who voluntarily appeared at police station to be in custody).

Whenever the police choose to conduct “non-custodial interrogations” at the police station, there is a substantial risk that a court subsequently will disagree that the circumstances were noncustodial. (See generally Annot., 31 A.L.R.Sd 565 (1970 & Supp. 1990); see, e.g., Weathers v. State (1989), 105 Nev. 199, 772 P.2d 1294; State v. Hoeplinger (1988), 206 Conn. 278, 537 A.2d 1010; Jones v. People (Colo. 1986), 711 P.2d 1270; State v. Menne (La. 1980), 380 So. 2d 14; Commonwealth v. Haas (1977), 373 Mass. 545, 369 N.E.2d 692; White v. State (Miss. 1974), 290 So. 2d 616; People v. Lucy (1990), 204 Ill. App. 3d 1019; State v. Little (Iowa Ct. App. 1988), 421 N.W.2d 172; People v. Celaya (1987), 191 Cal. App. 3d 665, 236 Cal. Rptr. 489; State v. Micheliche (1987), 220 N.J. Super. 532, 533 A.2d 41; People v. Brainard (1986), 122 A.D.2d 299, 503 N.Y.S.2d 915; Johnson v. State (Ind. Ct. App. 1985), 484 N.E.2d 49; Commonwealth v. Craig (1985), 345 Pa. Super. 542, 498 A.2d 957; State v. Wininger (Fla. Dist. Ct. App. 1983), 427 So. 2d 1114; State v. Pollock (1974), 22 N.C. App. 214, 206 S.E.2d 382; State v. Vining (1970), 2 Wash. App. 802, 472 P.2d 564.) This risk arises because police stations are typically the location of custodial interrogations, thereby giving credibility to a suspect’s claim that he believed himself to be in custody despite police testimony about how they treated the suspect. The interrogating officers ought to know that if the suspect makes incriminating statements and is later arrested, a motion to suppress those statements assuredly will be filed, and the defendant, as in the present case, is almost certain to testify that he believed he was in custody at the time he made those statements. The issue of defendant’s custody then becomes a question of fact to be resolved by the trial court in accordance with the criteria discussed earlier. By choosing the police station as the location for their allegedly “non-custodial interrogations,” police officers give defendants, who later claim they believed they were in custody, the greatest possible advantage to support that claim. As in this case, the setting of the interrogation will be subject to very close scrutiny to see what support it lends to defendant’s claim of custody. The placement of furniture, the size of the room, the presence of armed officers, whether doors were opened or closed (and if closed, whether they were locked), the transport of the suspect into the depths of a building where ingress and egress is typically controlled by security measures, all might give support to a defendant’s claim that he did not believe himself free to leave.

Perhaps the best means of demonstrating the risk of finding coercion whenever a suspect is interrogated at a police station is to ask whether the same arguments made by the suspect (“I was taken to a small room, the door was closed, I was told to wait, other armed officers were present, et cetera”) would sound nearly as credible or persuasive if the interrogation had occurred instead at the local Burger King restaurant, a nearby park, the suspect’s own residence, or in any location of the suspect’s choosing. We think not, and the case law in point supports that conclusion.

We emphasize that the trial court’s decision on the issue of custody is the resolution of a question of fact, and that decision will not be disturbed unless it is manifestly erroneous. The burden of convincing a court of review that a trial court’s decision regarding custody is manifestly erroneous is a heavy one indeed, and, as in this case, the State often will simply be unable to carry it.

We acknowledge that there are many cases, like Mathiason, in which questioning at a police station has been found not to constitute custodial interrogation. Nonetheless, for the reasons we have discussed, the police run a significant (and often unnecessary) risk whenever they choose to conduct a “non-custodial” interrogation at a police station. The risk is that a trial court will disagree with them and find the interrogation to be custodial.

B. Intent, Knowledge, and Focus of the Police

Just because the police ask someone to answer questions does not mean that they have created a coercive atmosphere. (See Mathiason, 429 U.S. at 495, 50 L. Ed. 2d at 719, 97 S. Ct. at 714.) “An assumption that one is required to cooperate with the police can hardly be equated with an arrest; every citizen has a duty to assist police officers up to the point of self-incrimination.” (Bradford, 97 Ill. App. 3d at 1002, 423 N.E.2d at 1183, citing Wipfler, 68 Ill. 2d at 167, 368 N.E.2d at 873.) Even though an individual is a suspect in the minds of the police, this focus by itself is not enough to create custodial interrogation. (See Beckwith v. United States (1976), 425 U.S. 341, 346-48, 48 L. Ed. 2d 1, 7-8, 96 S. Ct. 1612, 1616-17; People v. Kenning (1982), 110 Ill. App. 3d 679, 684, 442 N.E.2d 1337, 1340.) “The fact that police suspicions may have shifted to the defendant *** or that his statement was elicited at a police station, does not render the situation a custodial one.” People v. Miller (1980), 91 Ill. App. 3d 1031, 1038, 415 N.E.2d 538, 544; see also Finklea, 119 Ill. App. 3d at 453, 456 N.E.2d at 683.

Because in its ruling suppressing defendants’ statements the trial court noted that defendants were the focus of a criminal investigation, we deem it appropriate to clarify how the issue of “focus” should be viewed by the trial courts when deciding whether a suspect was in custody when he was interrogated by police officers. This court recently dealt with this issue in People v. Bury (1990), 199 Ill. App. 3d 207, 556 N.E.2d 899, in which the defendant allowed police officers, armed with an arrest warrant, to search his residence, discussed his involvement in the charged offense, and signed a preprinted form entitled “Voluntary Statement.” The trial court’s decision to suppress defendant’s statements was not based upon any finding that defendant was in custody, but instead on the police officers “ ‘playing games with the constitution’ ” by not arresting the defendant or giving him the Miranda warnings even though they possessed a warrant for his arrest. (Bury, 199 Ill. App. 3d at 209, 556 N.E.2d at 901.) This court reversed, concluding that the defendant made his statements and allowed the search of his home free from any coercive pressures of the police. (Bury, 199 Ill. App. 3d at 212, 556 N.E.2d at 903.) “The focus of the inquiry must always be on what the defendant thought and believed, not the [police] officers.” (Bury, 199 Ill. App. 3d at 213, 556 N.E.2d at 903.) The intent of police officers is relevant only to the extent that it may assist the trier of fact in determining whether the police, through their verbal and nonverbal conduct, created a coercive atmosphere requiring the Miranda warnings. (Bury, 199 Ill. App. 3d at 213, 556 N.E.2d at 903.) This court discussed this point further, as follows:

“In weighing all of these circumstances, the subjective intent of the police officers is relevant only to the extent that it might color their outward behavior. These intentions become probative when there is a conflict in the evidence between the defendant and the officers over how the officers behaved. If the officers intended all along to arrest the defendant, then the court might reasonably resolve such a conflict by doubting the ability of the officers to hide their intentions. But, the fact that the officers might have intended to arrest the defendant when their interrogation ceased is of no significance if their behavior was such that this intent was never revealed to the defendant. In other words, that the investigation had focused upon the defendant, even to the extent, as here, that the officers possessed an arrest warrant as the interrogation was taking place, does not matter as long as the defendant was not aware of the officers’ intentions.” Bury, 199 Ill. App. 3d at 213, 556 N.E.2d at 903.

While we acknowledge that the focus of the officers’ investigation upon a suspect is one of the factors which, according to Brown, should be considered by the trial court when deciding whether a suspect was in custody during an interrogation (Brown, 136 Ill. 2d at 124-25, 554 N.E.2d at 220), we believe the foregoing analysis puts the issue of focus into its proper (and limited) context. Further, the Bury analysis is consistent with the decisions of the United States Supreme Court regarding focus. In Beckwith, the Court rejected the argument that the Miranda warnings had to be given and stated the following:

“[W]e agree *** that
‘[t]he major thrust of Beckwith’s argument is that the principle of Miranda and Mathis should be extended to cover interrogation in non-custodial circumstances after a police investigation has focused on the suspect.’ [Citation.]
*** [W]e ‘are not impressed with this argument in the abstract nor as applied to the particular facts of Beckwith’s interrogation.’ [Citation.] It goes far beyond the reasons for that holding and such an extension of the Miranda requirements would cut this Court’s holding in that case completely loose from its own explicitly stated rationale.” (Beckwith, 425 U.S. at 345, 48 L. Ed. 2d at 6-7, 96 S. Ct. at 1615.)

The Court in Beckwith quoted approvingly the following from United States v. Caiello (2d Cir. 1969), 420 F.2d 471, 473:

“ ‘It was the compulsive aspect of custodial interrogation, and not the strength or content of the government’s suspicions at the time the questioning was conducted, which led the court to impose the Miranda requirements with regard to custodial questioning.’ ” Beckwith, 425 U.S. at 346-47, 48 L. Ed. 2d at 7-8, 96 S. Ct. at 1616.

In Beheler, the Court reviewed a decision by a California appellate court which held that the Miranda warnings should have been given to the defendant because “the interview took place in the station house, that before the station house interview the police had already identified Beheler as a suspect in the case because Beheler had discussed the [case] with police earlier, and that the interview was designed to produce incriminating responses.” (Beheler, 463 U.S. at 1123, 77 L. Ed. 2d at 1278, 103 S. Ct. at 3519.) The Court reversed, noting that, “It is beyond doubt that Beheler was neither taken into custody nor significantly deprived of his freedom of action.” (Beheler, 463 U.S. at 1123, 77 L. Ed. 2d at 1278, 103 S. Ct. at 3519.) In so holding, the Court specifically rejected, as meaningful for Miranda purposes, the appellate court’s analysis that the police “had a great deal” of information about Beheler’s role in the crime they were investigating before they interviewed him. Beheler, 463 U.S. at 1125, 77 L. Ed. 2d at 1279, 103 S. Ct. at 3520.

The Illinois Supreme Court in People v. Wipfler (1977), 68 Ill. 2d 158, 368 N.E.2d 870, has similarly indicated that “police focus” upon defendant has limited relevance when a court resolves the issue of custodial interrogation. In Wipfler, the trial court conducted a hearing on defendant’s motion to suppress his statements and found that when defendant first went to the police station and spoke with the police, he was in custody. The court further found defendant’s interrogation became custodial at the point he was given the Miranda warnings, after the police said they did not believe him and in response he said he “would tell the truth about everything.” (Wipfler, 68 Ill. 2d at 164, 368 N.E.2d at 872.) The supreme court affirmed the trial court and made the following significant observation:

“Having decided that a reasonable, innocent man would not have understood himself to be under arrest in this case, it is not necessary to our holding on this issue [of whether defendant was in custody during the early portion of his interrogation] that we determine the intent of the officers.” Wipfler, 68 Ill. 2d at 167, 368 N.E.2d at 873.

We view these remarks as directing the trial court’s attention, when deciding questions of custody, to the perspective of the suspect, not to the subjective intentions of the police. “Coercion is determined from the perspective of the suspect.” (Illinois v. Perkins (1990), 496 U.S. 292, 296, 110 L. Ed. 2d 243, 251, 110 S. Ct. 2394, 2397.) On this matter of a suspect’s perceptions, the Supreme Court has written the following:

“ ‘[Interrogation’ under Miranda refers not only to express questioning, but also to any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect. The latter portion of this definition focuses primarily upon the perceptions of the suspect, rather than the intent of the police. This focus reflects the fact that the Miranda safeguards were designed to vest a suspect in custody with an added measure of protection against coercive police practices, without regard to objective proof of the underlying intent of the police.” (Emphasis added.) Rhode Island v. Innis (1980), 446 U.S. 291, 301, 64 L. Ed. 2d 297, 308, 100 S. Ct. 1682, 1689-90.

See also Perkins, 496 U.S. at 296-97, 110 L. Ed. 2d at 251, 110 S. Ct. at 2397.

In Bradford (97 Ill. App. 3d at 1001, 423 N.E.2d at 1183), the court held that an interrogation at a police station which originally was noncustodial in nature became custodial during its course, requiring the giving of the Miranda warnings. Wipfler and Bradford are applicable to the present case, where these defendants may have initially appeared at the police station voluntarily, but subsequent events gave credence to their claim that they believed they were in custody.

C. Indicia of Arrest Cases

Although the police may tell a suspect that he is free to leave and that he is not under arrest, a suspect may still reasonably perceive that he is in custody. Any control over the person by the police suggests custody. See Miranda, 384 U.S. at 444, 16 L. Ed. 2d at 706, 86 S. Ct. at 1612; People v. Holveck (1990), 141 Ill. 2d 84, 95; In re N.E.R. (1987), 159 Ill. App. 3d 320, 324-26, 512 N.E.2d 132, 135; Mrozek, 52 Ill. App. 3d at 507, 367 N.E.2d at 787 (finding custody, in part, because defendant was not permitted to leave the police station or go unaccompanied to the water fountain).

Conversely, some courts have declined to find a defendant in custody when the police do not perform those procedures which the public associates with arrest, such as searching, booking, and fingerprinting. Wipfler, 68 Ill. 2d at 167, 368 N.E.2d at 873; People v. Reed (1982), 104 Ill. App. 3d 331, 432 N.E.2d 979.

Here, the trial court found that each defendant was restrained in some manner, and the record provides some support for those findings (specifically, Gorman being told he could not talk to his friends or leave until the interview was over, Zavalis being ordered back to Fitzpatrick’s office by a police officer, and Schicker being interviewed as Trame blocked the door). We note that police station interviews such as these were the primary focus of concern of the United States Supreme Court when it decided Miranda. Professor Yale Kamisar has explained these concerns as follows:

“It is the impact on the suspect’s mind of the interplay between police interrogation and police custody — each condition reinforcing the pressures and anxieties produced by the other— that, as the Miranda Court correctly discerned, makes ‘custodial police interrogation’ so devastating. It is the suspect’s realization that the same persons who have cut him off from the outside world, and have him in their power and control, want him to confess, and are determined to get him to do so, that makes the ‘interrogation’ more menacing than it would be without the custody and the ‘custody’ more intimidating than it would be without the interrogation.
It is this combination of ‘custody’ and ‘interrogation’ that creates — and, in the absence of ‘adequate protective devices,’ enables the police to exploit an ‘interrogation environment’ designed to ‘subjugate the individual to the will of his examiner.’ It is this combination — more awesome, because of the interplay, than the mere sum of the ‘custody’ and ‘interrogation’ components — that produces the ‘interrogation atmosphere,’ ‘interrogation ... in a police dominated atmosphere,’ that ‘carries its own badge of intimidation,’ that ‘exacts a heavy toll in individual liberty and trades on the weakness of individuals,’ and that is so ‘at odds’ with the privilege against compelled self-incrimination.” (Emphasis in original.) (Kamisar, Brewer v. Williams, Massiah, & Miranda: What is “Interrogation”? When Does It Matter?, 67 Geo. L.J. 1, 63-64 (1978) quoting phraseology of Miranda, 384 U.S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602.)

On the record before us, we cannot conclude that the trial court’s determination that these defendants were in custody at the time of their statements — essentially, in the words of Professor Kamisar, that they were in an “ ‘interrogation environment’ designed to ‘subjugate [them] to the will of [the questioner]’ ” — is manifestly erroneous.

For the reasons stated, the trial court’s order suppressing the statement of each defendant is affirmed.

Affirmed.

GREEN and KNECHT, JJ., concur.