NOTICE Decision filed 07/26/19. The text of this decision may be NO. 5-18-0264 changed or corrected prior to the filing of a Petition for Rehearing or the disposition of IN THE the same. APPELLATE COURT OF ILLINOIS

FIFTH DISTRICT ______________________________________________________________________________

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the ) Circuit Court of Plaintiff-Appellant, ) St. Clair County. ) v. ) No. 16-CF-902 ) ANTHONY FIRESTINE, ) Honorable ) Stephen P. McGlynn, Defendant-Appellee. ) Judge, presiding. ______________________________________________________________________________

JUSTICE CHAPMAN delivered the judgment of the court, with opinion. Presiding Justice Overstreet and Justice Welch concurred in the judgment and opinion.

OPINION

¶1 The defendant, Anthony Firestine, was charged with several offenses in connection with

an incident in which two of his brothers were shot. The defendant admitted to police that he shot

one of his brothers in the foot. He also admitted firing five additional shots but told police that he

did not know whether any of those bullets hit his other brother. He claimed that all six shots were

intended as warning shots. The defendant filed a motion to suppress his statement to police,

arguing that, after he invoked his right to counsel, the investigating officer continued to ask him

questions. The St. Clair County circuit court granted the defendant’s motion. The State appeals,

arguing that the defendant made only a limited invocation of his right to counsel by stating, “I

don’t want to answer that question without my lawyer.” We affirm.

¶2 The events leading to the defendant’s arrest took place at the home of his brother, John.

The defendant and his son, Mark, went to John’s home to confront the defendant’s brothers, John and Joe. According to the defendant, Joe owed money to various family members, including him.

During the encounter that took place, Joe was shot in the foot, and John was shot in the leg. Both

the defendant and Mark were arrested in connection with these events.

¶3 During the early morning hours of July 5, 2016, Officer Jeffery Hartsoe questioned the

defendant in custody. Officer Hartsoe provided the defendant with the warnings required by

Miranda v. Arizona,

(1966), both verbally and in writing. Officer Hartsoe then told

the defendant that he was there because his brother Joe had been injured. He explained that other

individuals had given him statements about how that happened. Officer Hartsoe told the

defendant that he wanted to get his “side of the story” so that he would not have to “rely on only

one person’s side.” The defendant indicated that he wanted to hear what others had said first.

When asked why, he told Officer Hartsoe that he wanted to know what people were saying about

him. The following exchange then took place:

“OFFICER HARTSOE: Did you shoot your brother, Joe, tonight?

THE DEFENDANT: Did I shoot him?

OFFICER HARTSOE: Mmm hmm.

THE DEFENDANT: No.

OFFICER HARTSOE: Did you shoot him in the foot?

THE DEFENDANT: I don’t want to answer that question without my lawyer.

OFFICER HARTSOE: Okay. Did you shoot John?

THE DEFENDANT: Did I shoot John?

OFFICER HARTSOE: Mmm hmm.

THE DEFENDANT: Not that I know of.”

¶4 Officer Hartsoe continued to question the defendant. He asked the defendant where he

was that evening, and the defendant acknowledged that he went to John’s house. Officer Hartsoe -2- then asked if his encounter there was good or bad, and the defendant indicated that it was bad. At

this point, Officer Hartsoe said, “So tell me about the parts you do want to talk about.” In

response, the defendant said, “I’ll talk about the whole thing.”

¶5 The defendant then told Officer Hartsoe that he drove to the home of his brother, John, to

confront John and Joe. He stated that he drove there in a truck owned by his son, Mark, but he

claimed that Mark did not go with him. No one was home, so the defendant returned to Mark’s

truck to leave. He told Officer Hartsoe that, as he got into the truck to leave, his brother’s truck

pulled up behind him and three individuals got out of the truck—John, Joe, and an individual he

did not know. According to the defendant, all three “charged” at him, and John struck him with a

baseball bat. The defendant admitted that he retrieved a pistol from Mark’s truck and fired the

pistol. He told Officer Hartsoe that he did not fire at anyone in particular, explaining that he was

only trying to scare them away.

¶6 At this point, Officer Hartsoe asked the defendant if his brothers and the other individual

were armed. The defendant stated that he did not know because it was dark. The officer asked

how many shots he fired, and the defendant indicated that he fired six shots. Officer Hartsoe

said, “You said you fired all six shots. The first one you said you shot to let them know, ‘Hey,

I’ve got a gun.’ What were the other five for?” In response, the defendant admitted that he shot

Joe in the foot. Asked whether he also shot John in the leg, he stated that he did not know

whether he hit John.

¶7 During the interview, the defendant also acknowledged that he demanded money from

Joe. He explained that Joe owed him money. He denied that he went to John’s house looking for

a fight. Officer Hartsoe informed the defendant that his son, Mark, admitted to being at the

scene. The defendant acknowledged that Mark was there, but he denied that Mark was involved

in the confrontation. -3- ¶8 The defendant was charged with three counts of aggravated battery (720 ILCS 5/12-

3.05(e)(1), (f)(1) (West 2014)), one count of attempted armed robbery (id. §§ 8-4(a), 18-2(a)),

one count of aggravated discharge of a firearm (id. § 24-1.2(a)(2)), and one count of aggravated

unlawful use of a weapon (id. § 24-1.6(a)(1)). Subsequently, the defendant filed a motion to

suppress his statements to Officer Hartsoe. He alleged that he unequivocally invoked his right to

counsel early in the interview but “the officer ignored his invocation, and continued questioning

him as if had not invoked his right.”

¶9 The court held a hearing on the motion in April 2018. Officer Hartsoe testified as to his

recollections of his interview of the defendant, and a video recording of the interview was

entered into evidence. Officer Hartsoe testified that he asked the defendant if he shot someone in

the foot. Defense counsel asked him if he could remember the defendant’s response. Officer

Hartsoe replied, “Paraphrasing, it was somewhere around, ‘I don’t want to answer that question

without a lawyer or attorney.’ ” He acknowledged that he continued to question the defendant

immediately, and he acknowledged that he did so without asking the defendant for any

clarification concerning his invocation of his right to counsel. Asked if he could recall what types

of questions he asked, Officer Hartsoe replied, “Not specifically or verbatim. It would have been

details about the rest of his day that evening.” He noted that, at some point, he asked the

defendant what he was willing to discuss and the defendant answered, “The whole thing.” He

testified that the defendant did not again request an attorney.

¶ 10 In announcing his ruling from the bench, the trial judge first noted that he had viewed the

recording of the interview. He then noted that as soon as the officer “gets to the heart of what

these allegations are of the shooting of a family member, it’s very clear that the—the defendant

is becoming increasingly uncomfortable with the questioning.” The court found that the

defendant clearly asserted his right to remain silent without the presence of counsel. He then -4- stated, “I believe the police officer just ignored it, he moved on. He stuck on the same things.”

The court therefore granted the motion to suppress. The court entered a written order to that

effect the same day. The State filed a certificate of impairment and the instant appeal pursuant to

Illinois Supreme Court Rule 604(a)(1) (eff. July 1, 2017).

¶ 11 The fifth amendment to the United States Constitution protects any individual from being

“ ‘compelled in any criminal case to be a witness against himself,’ ” a protection that is

applicable during custodial interrogation by the police. Colorado v. Spring,

(1987) (quoting U.S. Const., amend. V, and citing Miranda,

). In Miranda, the

Supreme Court recognized that, due to the inherently coercive nature of custodial interrogation,

procedural safeguards are necessary to protect the privilege against self-incrimination in that

setting.

(citing Miranda,

). The warnings required by Miranda are intended to

ensure “that a suspect knows that he may choose not to talk to law enforcement officers, to talk

only with counsel present, or to discontinue talking at any time.”

.

¶ 12 Once a suspect invokes his right to counsel under Miranda, officers must stop

questioning him until counsel is present. Edwards v. Arizona,

(1981) (citing

Miranda,

). This allows the suspect to “control the time at which questioning

occurs, the subjects discussed, and the duration of the interrogation.” (Emphasis added.)

Michigan v. Mosley,

(1975).

¶ 13 In Edwards, the Supreme Court held that, once a suspect in custody has invoked his right

to counsel, all questioning must cease until counsel is present unless the suspect initiates further

discussion. Edwards,

. The Court explained that the right to counsel embodied

in Miranda is sufficiently important that, once a suspect invokes that right, it warrants “the

special protection of the knowing and intelligent waiver standard.”

. As such, the Court

held that “a valid waiver of that right cannot be established by showing only that [the suspect] -5- responded to further police-initiated custodial interrogation.”

. This is a rigid “ ‘bright-

line rule.’ ” Smith v. Illinois,

(1984) (per curiam) (quoting Solem v. Stumes,

(1984)). It exists to prevent police officers from “badgering” a suspect or engaging

in conduct designed to “wear down the accused and persuade him to incriminate himself

notwithstanding his earlier request for counsel’s assistance.”

(citing Oregon v. Bradshaw,

(1983) (Rehnquist, J., joined by Burger, C.J., and White and O’Connor, JJ.), and

Fare v. Michael C.,

(1979)).

¶ 14 However, the rigid bright-line rule of Edwards is applicable only if the suspect actually

invokes his right to counsel. Davis v. United States,

(1994) (citing Smith,

). To do so, a suspect must express his desire for the presence of counsel “sufficiently

clearly that a reasonable police officer in the circumstances would understand the statement to be

a request for an attorney.” Id. at 459. If the suspect’s statement “is ambiguous or equivocal ***

in light of the circumstances,” the Edwards rule does not apply, and the officers may continue

questioning the suspect. Id. Whether a suspect has unambiguously invoked his right to counsel is

an objective inquiry. Id.

¶ 15 Statements obtained in violation of Miranda and its progeny are presumptively

nonvoluntary. As such, they may not be admitted into evidence. People v. Schuning,

(2010). The State bears the burden of proving that a defendant’s

incriminating statements were voluntary. People v. Quevedo,

(2010).

Appellate review of a ruling on a motion to suppress evidence on the basis of a Miranda

violation ordinarily involves a two-part standard of review.

. We first review the trial

court’s factual findings to determine whether they are against the manifest weight of the

evidence. We then review the court’s determination as to whether suppression is warranted under

a de novo standard of review.

In this case, however, the court relied on a video recording of -6- Officer Hartsoe’s interview of the defendant, which this court has also viewed. Any

discrepancies between that video and the officer’s testimony more than a year later must be

resolved in favor of what the video shows.

As such, there are no disputed facts, and our

review is therefore de novo. See Schuning,

.

¶ 16 In this case, there is no question that the defendant was given the warnings required by

Miranda. There is no question that he unequivocally invoked his right to counsel. There is also

no question that Officer Hartsoe continued to interrogate the defendant after he did so. The only

question is the scope of the defendant’s invocation of his right to counsel. As we stated

previously, invoking the right to counsel under Miranda allows a suspect to control what

subjects can be discussed during the interrogation. See Mosley,

. Thus, courts

recognize that a suspect may make a limited or selective invocation of his right to counsel. See,

e.g., Connecticut v. Barrett,

(1987); United States v. Soliz,

(9th Cir. 1997), overruled on other grounds by United States v. Johnson,

, 913 n.4

(9th Cir. 2001). The question in this case is whether a reasonable police officer should have

understood the defendant’s invocation of that right in this case to be limited to certain subjects

and, if so, what those subjects were.

¶ 17 The State argues that, by using the phrase “that question,” the defendant unambiguously

made only a limited invocation of his right to counsel. In support of its position, the State relies

heavily on the United States Supreme Court’s decision in Barrett. We find Barrett

distinguishable.

¶ 18 There, the defendant was taken into custody and advised of his Miranda rights. He told

police that he was willing to talk to them but that he would not give any written statements.

Barrett,

. Officers did not begin interrogating the defendant until approximately

half an hour later. Before beginning their interrogation, officers again read the warnings required -7- by Miranda. The defendant told them that he would not give a written statement unless his

attorney was present, but he said that he had “ ‘no problem’ ” talking to them.

The defendant

then offered a confession.

¶ 19 The trial court denied the defendant’s motion to suppress, and the defendant was

subsequently convicted.

. On appeal, the Connecticut Supreme Court reversed, finding

that the defendant had clearly invoked his right to counsel and noting that “ ‘requests for

counsel’ ” have not “ ‘been narrowly construed.’ ”

at 526-27 (quoting State v. Barrett,

(Conn. 1985)).

¶ 20 The United States Supreme Court disagreed. Id. at 527. The Court emphasized that the

“fundamental purpose” of its holding in Miranda was to protect the right of a suspect to

“ ‘choose between speech and silence’ ” during custodial interrogation. (Emphasis omitted.) Id.

at 528 (quoting Miranda,

). The Court explained:

“[W]e know of no constitutional objective that would be served by suppression in this

case. It is undisputed that Barrett desired the presence of counsel before making a written

statement. Had the police obtained such a statement without meeting the waiver standards

of Edwards, it would clearly be inadmissible. Barrett’s limited requests for counsel,

however, were accompanied by affirmative announcements of his willingness to speak

with the authorities.” (Emphasis added.)

.

¶ 21 The Court went on to address the Connecticut Supreme Court’s reliance on the principle

that requests for counsel should not be interpreted narrowly.

Significantly for our purposes,

the Court reaffirmed the principle that a suspect’s request for counsel should be given “ ‘a broad,

rather than a narrow, interpretation.’ ”

(quoting Michigan v. Jackson,

(1986)). The Court found, however, that under the facts before it, finding that the defendant had

“invoked his right to counsel for all purposes” would require “not a broad interpretation of an -8- ambiguous statement, but a disregard of the ordinary meaning of [the defendant’s] statement.”

Id. at 529-30.

¶ 22 Here, unlike in Barrett, the defendant’s invocation of his right to counsel was not

accompanied by an affirmative statement that there were any topics he was willing to discuss.

Because there was no room to doubt that the defendant in Barrett was willing to waive his right

to counsel and speak to police as long as he did not have to give a written statement, the Court

did not have to provide any guidance for determining the scope of requests for counsel that are

more nuanced.

¶ 23 The State, however, argues that the “ordinary meaning” of the language used by the

defendant was as unambiguous as that of the defendant in Barrett. As noted previously, the State

focuses on the phrase “that question.” We find this argument flawed for two reasons.

¶ 24 First, the State’s argument requires us to ignore the circumstances under which the

defendant invoked his right to counsel. The defendant refused to answer the first question he was

asked about the incident in which his brothers were shot. Under these circumstances, we believe

it should have been clear to a reasonable police officer that he did not wish to discuss that

incident further without an attorney. To overlook this circumstance would be at odds with our

precedent. See, e.g., Davis,

(explaining that the bright-line rule of Edwards does

not apply if a suspect’s request for counsel “is ambiguous or equivocal *** in light of the

circumstances” (emphasis added)); People v. St. Pierre,

(1988) (holding that a

defendant’s statement, “when considered in the entirety of the circumstances that preceded it,

cannot be viewed as anything other than an unambiguous invocation of his right to counsel”);

Quevedo,

(concluding that the defendant did not make an unequivocal

request for counsel when “[v]iewing defendant’s statements in context”); Schuning, 399 Ill. App.

-9- 3d at 1089 (expressly refusing to ignore the circumstances under which the defendant made his

request for counsel).

¶ 25 The second problem with the State’s argument is that, if the defendant’s invocation of his

right to counsel is viewed as a limited invocation of that important right, it is not clear what the

limits are. As we noted earlier, one purpose of the rules of Miranda and Edwards is to allow

suspects to control the subjects they are willing to discuss with police. See Mosley,

. It is unclear in this case what subjects the State views the defendant’s request for counsel

as placing off limits—questions about shooting, only questions about shooting Joe, or only

questions about shooting Joe in the foot.

¶ 26 This brings us to the second case relied upon by the State, Burrell v. Commonwealth,

(Va. Ct. App. 2011). The State acknowledges that this Virginia decision is not

binding on this court, but it argues that Burrell is persuasive. We find Burrell distinguishable,

and we do not find its rationale persuasive.

¶ 27 There, the defendant was questioned about cocaine found in the bedroom of a home he

shared with his girlfriend. Before questioning him, the investigating officer read the defendant

his Miranda rights.

. The defendant answered questions about whether he lived in the

house and which bedroom he used.

The officer then asked the defendant whether the cocaine

found in the bedroom belonged to him. At this point, the defendant told the officer that he did not

want to answer “ ‘certain questions’ ” without an attorney.

The officer asked the defendant

whether this meant that he did not want to speak to him at all without an attorney, to which the

defendant “ ‘stated no, there was just certain questions he didn’t want to answer.’ ”

¶ 28 The officer continued the interrogation. He asked the defendant for his girlfriend’s phone

number, explaining that he would need to question her about the cocaine. The defendant then

confessed that it was his cocaine.

The officer once more asked the defendant if he was sure he - 10 - wanted to answer questions without an attorney. The defendant again stated that he did, and he

repeated that the cocaine belonged to him.

He also admitted that a digital scale found in the

home belonged to him.

. However, he denied selling cocaine, and he denied lying to

protect his girlfriend.

. The defendant filed a motion to suppress these statements,

which the trial court denied.

.

¶ 29 On appeal from that ruling, a Virginia appellate court first noted that, if a suspect makes a

request for counsel that is limited or qualified, police may continue to question him, but only “to

the extent permitted by the qualification.”

at 515 (citing Barrett,

). The court

then noted that, in order to effectively invoke his right to counsel at all, a suspect must make a

request for counsel that is “unambiguous and unequivocal.”

(citing Davis,

-

60). The court reasoned that, in light of both of these principles, “when a suspect makes a

qualified invocation by requesting the presence of counsel before answering certain kinds of

questions, the qualification must also be unequivocal and unambiguous.”

The court went on

to explain that, in order to place an unequivocal and unambiguous qualification on a request for

counsel, a suspect must express the limitation of his request sufficiently clearly “that a

reasonable police officer would understand” that the suspect is “placing a specific question

outside the boundaries of the interrogation.”

.

¶ 30 Applying this reasoning to the facts before it, the Burrell court noted that, although the

defendant told police that there were “certain questions” he would not answer without the

presence of counsel, he did not specify what those questions were. The court stated, “We cannot

say that a reasonable police officer would have understood which questions Burrell had placed

off limits.”

The court found that his statement therefore indicated only that he “might, at

some point in the future,” refuse to answer specific questions.

The court concluded that the

defendant’s invocation of his right to counsel was, therefore, ineffective.

. - 11 - ¶ 31 We find that the instant case is different from Burrell in one significant respect. There,

the defendant’s invocation of his right to counsel was accompanied by an affirmative statement

telling police that there were subjects he was willing to discuss without having an attorney

present. Here, the defendant made no such affirmative statement when he invoked his right to

counsel. Although the defendant later told Officer Hartsoe that he would talk about “the whole

thing,” he did so only in response to continued questioning after the officer ignored his request.

Statements in response to further questioning after a request for counsel cannot be used “to cast

doubt on the adequacy of the initial request.” Smith,

.

¶ 32 More fundamentally, however, we do not find the Burrell court’s reasoning persuasive.

Although we agree that a qualification or limit placed on an invocation of the right to counsel

must be unambiguous (Burrell,

), we disagree with the court’s conclusion as to

the effect of an ambiguous qualification on an unambiguous invocation of the right to counsel.

¶ 33 The primary problem with the Burrell court’s approach is that it rendered the defendant’s

otherwise clear and unequivocal request for counsel completely ineffective. Under the court’s

holding, police were free to continue to question the defendant unless and until he reasserted his

right. In essence, the court held that, if a qualification or limit on the invocation of the right to

counsel is ambiguous, the invocation of the right is ineffective. We find that the better approach

is to hold that, if a qualification or limit is ambiguous, the qualification or limit itself is

ineffective. In other words, once a suspect unambiguously and unequivocally invokes his right to

counsel, police must not question him concerning any matter unless the suspect has

unambiguously and unequivocally placed that matter outside the scope of his invocation of his

right to counsel. To hold otherwise would be at odds with the requirement that we interpret

invocations of the right to counsel broadly. See Barrett,

. In many cases, it would

also render an important right illusive. In this case, the defendant unambiguously and - 12 - unequivocally invoked his right to counsel, and he did not clearly and unequivocally indicate that

he was willing to discuss any particular topics without counsel’s presence. Thus, Officer Hartsoe

was required to stop the interrogation.

¶ 34 Finally, it is worth noting that, even if we were to accept the State’s assertion that the

defendant unambiguously made only a limited request for counsel, we would still find that

Officer Hartsoe failed to honor his request. Contrary to what Officer Hartsoe testified nearly two

years after the interrogation, the video shows that he did not merely go on to ask the defendant

about “the rest of his day that evening.” Instead, he immediately asked another question about

the shooting. We do not consider the shooting of John to be a separate subject from the shooting

of Joe because they were shot during the same incident. The fact that the officer did not change

the subject was emphasized by the trial court in explaining its ruling. Moreover, Officer Hartsoe

did not even refrain from asking again whether the defendant shot Joe. He asked, “What were the

other five [bullets] for?” This question was clearly designed to elicit precisely the response it

did—a statement that one of those bullets struck Joe in the foot. Because Officer Hartsoe did not

honor the defendant’s invocation of his right to counsel, the court correctly granted his motion to

suppress.

¶ 35 For the foregoing reasons, we affirm the order granting the defendant’s motion to

suppress his statements to police.

¶ 36 Affirmed.

- 13 -

NO. 5-18-0264

IN THE

APPELLATE COURT OF ILLINOIS

FIFTH DISTRICT

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the ) Circuit Court of Plaintiff-Appellant, ) St. Clair County. ) v. ) No. 16-CF-902 ) ANTHONY FIRESTINE, ) Honorable ) Stephen P. McGlynn, Defendant-Appellee. ) Judge, presiding. ______________________________________________________________________________

Opinion Filed: July 26, 2019 ______________________________________________________________________________

Justices: Honorable Melissa A. Chapman, J.

Honorable David K. Overstreet, P.J., and Honorable Thomas M. Welch, J. Concur ______________________________________________________________________________

Attorneys Hon. Brendan F. Kelly, State’s Attorney, St. Clair County, 10 Public for Square, Belleville, IL 62220; Patrick Delfino, Director, David J. Appellant Robinson, Deputy Director, Chelsea E. Kasten, Staff Attorney, Office of the State’s Attorneys Appellate Prosecutor, 628 Columbus Street, Suite 300, Ottawa, IL 61350 ______________________________________________________________________________

Attorneys William E. Carroll, Justin M. Whitton, 111 W. Washington Street, for Belleville, IL 62220 Appellee ______________________________________________________________________________