Third Division	

									Filing dateMarch 19, 2003 

No. 1-01-3661

THE PEOPLE OF THE STATE			)	Appeal from the

OF ILLINOIS,					)	Circuit Court of

							)	Cook County 

		Plaintiff-Appellee		)	

							)	

	v.						)	No. 99 CR 26552	

							)					 VERNON WOODS,	                    )	Honorable 

							)	Francis X. Golniewicz

		Defendant-Appellant.  	)	Judge Presiding.

	JUSTICE HALL delivered the opinion of the court:

	Defendant, Vernon Woods, was charged with two counts of

first-degree murder in the death of seven-month-old Tiywon J.

Austin, who died as a result of "shaken baby syndrome" injuries. 

Prior to trial, a two-day hearing was held on defendant's motion

to suppress statements.  At the hearings, defendant argued that

his constitutional rights were violated when police officers

prevented him from seeing a note that an attorney left for him at

the police station where he was being held in custody.  The

motion was denied.  On August 15, 2001, following a jury trial,

defendant was found guilty of involuntary manslaughter.  On

September 26, 2001, defendant was sentenced to 18 years'

imprisonment.  Defendant's motion to reconsider sentence was

denied and this appeal followed.

	On appeal, defendant contends that: (1) the trial court

erred in denying his motion to suppress statements; (2) the

State's rebuttal closing arguments deprived him of a fair trial;

and (3) his rights to due process and trial by jury under

Apprendi v. New Jersey, 530 U.S. 466, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000), were violated when the trial court enhanced the

Class 3 felony of involuntary manslaughter to a Class 2 felony,

based on a judicial finding that the victim was a family member. 

For the reasons that follow, we reverse and remand.

FACTUAL BACKGROUND

	Tiywon J. Austin was born on February 9, 1999.   

Approximately four weeks later, on March 18, 1999, he was

severely injured and on September 2, 1999, he died from

complications arising from his injuries.  Niki Garrett is

Tiywon's mother and his father is defendant.  Garrett and

defendant had terminated their relationship when she became

pregnant with Tiywon.  Nonetheless, once Tiywon was born, Garrett

and defendant had an arrangement whereby defendant would care for

Tiywon on the weekends.

	The following facts presented at the suppression hearing and

trial are relevant to our determination as to whether defendant's

statements were voluntary.1  On Friday, November 5, 1999, at approximately 1 p.m., Agents Rovirdes Delaney and Zeniah Ward- Hudson2 brought defendant to the Broadview police station for questioning regarding the circumstances surrounding Tiywon's

death.  At about 2:49 p.m., defendant was read his Miranda rights, he signed a waiver form and agreed to give a written

statement.  Delaney handed defendant a pen and pad and asked

defendant to make a written statement, in his own words,

regarding the events surrounding Tiywon being injured on March

18, 1999.

	In his statement, defendant claimed that during the morning

on the date of the incident, Tiywon kept crying.  Defendant

stated that his girlfriend, Alicia May, asked him if Tiywon had a

bowel movement.  He answered no.  May gave Tiywon an enema, which

caused him to have a bowel movement.  Tiywon went to sleep and

May left for work.  An hour later, Tiywon was crying again. 

Defendant wrote that he tried to put Tiywon back to sleep by

patting him on the back, by walking him and talking to him.  It

did not work.  Defendant wrote that he then gave Tiywon another

enema.  Tiywon kept crying.  Defendant laid Tiywon down, still

crying and hollering, while he finished cleaning the kitchen.

Defendant wrote that he went to pick Tiywon up and Tiywon

hollered one loud scream and passed out.  Defendant and his aunt's boyfriend, Tommy Nutall, called an ambulance and Tiywon

was taken to the hospital.

	Delaney testified that after he received defendant's written

statement, he and Ward-Hudson reviewed the statement with

defendant.  Delaney told defendant that his statement did not

account for the injuries Tiywon sustained.  Defendant denied

shaking, dropping, or hitting Tiywon.  At 6:45 p.m., defendant

requested to speak with Delaney.  According to Delaney, during

this interview, defendant changed his story and stated that he

had laid Tiywon down on the living room couch when he went to

clean the kitchen and that Tiywon probably hit his head on the

coffee table when he fell off the couch.

	Delaney terminated the interview and called the assistant

state's attorney (ASA).  The ASA arrived at the station the next

day, early Saturday morning, November 6, 1999, at approximately 2

a.m.  Delaney testified that he was not present for defendant's

interview with the ASA and Ward-Hudson, because defendant had

specifically asked to speak to Ward-Hudson.  After the interview,

the ASA refused to approve charges.  Defendant was interviewed

again and the ASA was contacted a second time.  Delaney testified

that the State's Attorney's office still refused to approve

charges.

	Delaney testified that at 3:52 a.m., defendant again

requested to speak to him.  Defendant wanted to add to his

earlier statement and wanted to speak to his girlfriend, Alicia May.  According to Delaney, defendant stated that he was in the

kitchen preparing a baby bottle while holding Tiywon, when Tiywon

slipped from his hand and hit the kitchen table, chair and floor. 

Defendant stated that he called Tiywon's name and shook him

because Tiywon looked like he was knocked out after he hit the

floor.  Delaney testified that when the ASA arrived to take

defendant's statement, defendant stated that he wanted to speak

with Alicia May, not the ASA.  The ASA responded that he was

there to take a statement and to call him when defendant was

ready to give a statement.  The interview was then terminated.

	Attorney John F. Nocita testified that on November 5, 1999,

he was contacted by defendant's girlfriend, Alicia May.  Nocita

testified that May wanted him to represent defendant, who was

then being held in custody at the Broadview police station.  On

Saturday afternoon, November 6, 1999, at about 2 p.m., Nocita

went to the Broadview police station to speak to defendant.

	When Nocita asked the desk officer on duty if he could speak

to defendant, the desk officer left her desk to confer with

another officer.  The desk officer returned and informed Nocita

that defendant's case was a State Police case and since the state

investigators were not at the station, he could not see

defendant.  The desk officer told Nocita that the state

investigators would return to the station later that night.

	Nocita then asked the desk officer for a piece of paper.

Nocita testified that he wrote a full-length-of-paper note to defendant telling defendant that he was a lawyer and advising

defendant not to talk to anyone without an attorney being

present.  Nocita testified that the desk officer agreed to give

the note to defendant and agreed to give a copy of the note along

with his business card to the state investigators.

	Nocita estimated that he stayed at the Broadview police

station for about 50 minutes.  He testified that when he left the

police station, he did not return and he was never contacted by

defendant or the State Police that weekend.  Nocita subsequently

represented defendant at his preliminary hearing.

	Delaney testified that when he returned to the Broadview

police station on Saturday evening, November 6, 1999, at about 7

p.m., he was informed that earlier that afternoon an attorney had

been at the station asking to speak to defendant and that the

attorney had left his business card and a note.  According to

Delaney, after he received the attorney's business card and read

the note, he discussed the matter with his fellow agents and it

was decided that defendant should be informed that an attorney

had been to the police station to see him.  Delaney testified

that he never gave Ward-Hudson any specific instructions

regarding the business card or note.  He testified that he only

told Ward-Hudson to advise defendant that an attorney had been to

the police station to see him and that arrangements could be made

for him to call the attorney.  Delaney testified that he did not

personally pass this information on to defendant, because defendant chose to speak with Ward-Hudson.

	Delaney testified that he threw Nocita's note away, but

before he disposed of the note, he showed it to his fellow

agents.  He conceded that his police report contained a notation

regarding Nocita's business card, but not the attorney's note. 

Delaney also acknowledged that in his records pertaining to the

conversations he had with the ASA, there is a notation indicating

that the ASA told him that he should not talk to defendant if

defendant had an attorney.  Delaney could not remember if he told

the ASA about the note.  Delaney also conceded that his

information log indicated that on Saturday morning, November 6,

1999, at 4:09 a.m., defendant requested to make a telephone call

and that defendant was not allowed to make that phone call.

	Delaney testified that early Sunday morning, on November 7,

1999, at about 12:15 a.m., defendant again requested to speak

with him.  According to Delaney, defendant wanted to tell the

full story.  Delaney testified that defendant basically gave the

same story about accidentally dropping Tiywon and then shaking

him in an attempt to revive him.  Delaney typed the statement and

asked defendant to sign the statement.  Defendant responded that

he would sign the statement if he could call his girlfriend since

he had never explained to her exactly what happened.  Defendant

refused to sign the statement and the interview was terminated.

	Agent Ward-Hudson testified that the first time she

interviewed defendant alone was after he had already been interviewed by herself and Delaney.  This interview occurred

early Saturday morning, on November 6, 1999, at about 2 a.m. 

Ward-Hudson testified that defendant told her that Tiywon had

probably hurt himself when he fell off the living room couch and

hit his head on a coffee table.  Defendant then gave the same

statement to the ASA.  Ward-Hudson testified that the ASA left

after telling defendant that his statement did not account for

Tiywon's injuries.

	Later that Saturday evening, on November 6, 1999, at about

7:40 p.m., Ward-Hudson returned to the Broadview police station,

bringing food and toiletries for defendant.  Delaney was already

at the station.  Ward-Hudson testified that Delaney told her that

an attorney had come to the police station to see defendant and

had left his business card.  Ward-Hudson testified that Delaney

informed her that when she spoke with defendant to tell defendant

that an "attorney was there and if he wanted to talk to him, he

was free to talk to him."  Ward-Hudson testified that when she

went to the holding cell to speak with defendant she told him

that an "attorney had been there.  He had left his name and phone

number, and that if he wanted to talk to him, [she] could make

arrangements for him to do that, but that [she] would not be able

to speak with him after that."  According to Ward-Hudson,

defendant stated that he wanted to talk to her.

	Ward-Hudson testified that defendant told her that he had

given Delaney a "bullsh-t" statement and wanted to tell her what actually happened.  Defendant stated that he was in the kitchen

holding Tiywon, when Tiywon slipped out of his hands and hit his

head on a table and then on the floor.  Defendant stated that he

was unable to catch Tiywon before he hit the table and floor.  He

stated that he then shook Tiywon in an attempt "to wake him up"

and that he did not "mean to shake the baby as hard as he did." 

Ward-Hudson gave defendant a stuffed animal and asked him to

demonstrate how he shook Tiywon.  Defendant picked up the stuffed

animal with both hands and shook it lightly.  Defendant was then

told that his demonstration was not forceful enough to cause the

injuries that Tiywon sustained.  Defendant then shook the stuffed

animal with more force. Afterwards, defendant's oral statement

was written out, typed, and signed by defendant.  The statement

was dated November 8, 1999, at 1:45 a.m.

	On cross-examination, Ward-Hudson testified that when she

spoke to defendant in his holding cell, she did not inform him

that the attorney who came to see him at the police station had

left a note for him.  She testified that she never saw the

attorney's note and that neither Delaney nor anyone else ever

informed her of the note.  Ward-Hudson also acknowledged that the

Broadview police department's complaint control form and

detention report indicated that defendant was not allowed to make

any telephone calls.

	After hearing arguments, the trial court, citing to Escobedo v. Illinois, 378 U.S. 478, 12 L. Ed. 2d 977, 84 S. Ct. 1758 (1964), determined that defendant's constitutional rights were

violated.  The trial court, however, further determined that the

constitutional violations were cured when defendant made

incriminating statements after the State Police informed

defendant that an attorney had been to the Broadview police

station to see him, the police gave defendant the attorney's

business card, and defendant was again "Mirandized."  The trial

judge stated, "I say once Investigator Hudson tells [defendant],

'Here's the lawyer's card.  The lawyer was here to see you.'

[Defendant] is then sufficiently informed and can make an

intelligent decision then as to waive his Miranda rights or talk

to the lawyer."

ANALYSIS

I. Suppression of Statements

	Defendant first contends that the trial court erred in

denying his motion to suppress statements where the trial court

determined that the violations to his constitutional rights were

cured.  In response, the State concedes that the Broadview police

officers' decision not to allow Nocita access to defendant

violated defendant's constitutional rights under People v. McCauley, 163 Ill. 2d 414, 645 N.E.2d 923 (1994).  The State, however, goes on to argue that the case at bar is factually

distinguishable from McCauley, and therefore, we should affirm the trial court's judgment denying defendant's motion to suppress

statements.  We must reject the State's argument.

	Since neither side disputes the relevant facts, we conduct

de novo review of the trial court's application of the law to these uncontested facts. People v. Chapman, 194 Ill. 2d 186, 208, 743 N.E.2d 48 (2000); People v. Rodriguez, 324 Ill. App. 3d 468, 469, 754 N.E.2d 393 (2001).  A defendant's right against self-

incrimination is protected by article I, section 10, of the

Illinois Constitution of 1970 (Ill. Const. 1970, art. I, §10)3.  This right includes the right to an attorney. McCauley, 163 Ill. 2d at 421.  A defendant may waive these rights provided the

waiver is voluntary, knowing and intelligent. McCauley, 163 Ill. 2d at 421; Chapman, 194 Ill. 2d at 208.  In determining whether a defendant knowingly and intelligently waived his right to an attorney, a court considers the totality of the circumstances,

including the characteristics of the defendant and the details of

the interrogation. McCauley, 163 Ill. 2d at 421-22; Chapman, 194 Ill. 2d at 208.  The State bears the burden of proving, by a

preponderance of the evidence, that the defendant made a

voluntary, knowing and intelligent waiver of his rights.

McCauley, 163 Ill. 2d at 422; Chapman, 194 Ill. 2d at 208-09.

	In addition, the right to assistance of counsel is protected

by the due process guarantee in article I, section 2, of the

Illinois Constitution of 1970 (Ill. Const. 1970, art. I, §2)4. McCauley, 163 Ill. 2d at 425-26, 441-46.  Due process requires "'fairness, integrity, and honor in the operation of the criminal

justice system, and in its treatment of the citizen's cardinal

constitutional protections.'[Citations.]" McCauley, 163 Ill. 2d at 441.  Due process contemplates that police act in an

accusatorial, not an inquisitorial, manner. McCauley, 163 Ill. 2d at 441.

	Basically, three Illinois Supreme Court decisions control

the resolution of this case: McCauley, Chapman, and People v. Smith, 93 Ill. 2d 179, 442 N.E.2d 1325 (1982).

	McCauley involved the taking of a custodial suspect's statement while an attorney retained by defendant's family was

prevented from consulting with defendant.  In McCauley, the defendant was brought to the police station for questioning in

connection with a murder.  Defendant was read his Miranda rights but he did not request an attorney.  Unbeknownst to defendant,

his family had retained an attorney for him.  When the attorney

arrived at the police station and requested to see defendant, the

police refused to allow the attorney to see defendant and also

failed to inform defendant that the attorney was present at the

station and seeking to consult with defendant. McCauley, 163 Ill. 2d at 419.  Defendant subsequently made incriminating statements. 

The supreme court affirmed the trial court's suppression of

defendant's statements. McCauley, 163 Ill. 2d at 446.

	The McCauley court held that under the facts and circumstances of the case, the police violated defendant's right

to counsel under article I, section 10, by failing to tell

defendant that his attorney was present at the station and by

refusing to allow the attorney to see defendant. McCauley, 163 Ill. 2d at 439-45.  The supreme court also concluded that

defendant's statement was obtained in violation of his due

process rights under article I, section 2, when the police

interfered with defendant's right to his attorney's assistance. 

In this regard the supreme court stated:

	"While we recognize that an accused alone invokes the right to counsel, we are unwilling to dismiss an available

retained or appointed attorney's efforts to gain access to

his suspect-client as constitutionally insignificant to the

capacity of the suspect to make a knowing and intelligent

choice to relinquish his right to the attorney's presence."

McCauley, 163 Ill. 2d at 445.

	McCauley was followed by Chapman.  In Chapman, while defendant was being questioned in connection with a homicide

investigation, his attorney called the station and spoke briefly

with an officer. Chapman, 194 Ill. 2d at 206.  The attorney hung up the phone and drove to the police station.  Before the

attorney arrived at the police station, the defendant made an

incriminating statement.  When the attorney arrived at the

station, he was denied access to defendant. Defendant

subsequently made further incriminating statements.  The supreme court affirmed the trial court's decision admitting the statement

defendant made before his attorney arrived at the police station

and suppressing the statements defendant made after his counsel

arrived at the police station. Chapman, 194 Ill. 2d at 208.

	Citing McCauley, the Chapman court stated:

		"[A] defendant's state constitutional rights [are]

violated where the police [deny] the attorney retained for

the defendant physical access to the defendant during interrogation, and where the police [do] not inform the

defendant that the attorney was seeking to consult with him at the police station." (Emphasis in original.) Chapman, 194 Ill. 2d at 211.

	The supreme court in Chapman concluded that its holding struck the appropriate balance between the State's interest in

effective crime investigation and a suspect's state

constitutional rights to due process and against self-

incrimination under sections 2 and 10 of article I of the

Illinois Constitution of 1970. Chapman, 194 Ill. 2d at 213.      

	Thus, McCauley and Chapman hold that a defendant's constitutional rights are violated when officers fail to tell

defendant that his attorney was present at the station and when

officers deny defendant access to his attorney who is physically

present at the police station and ready to counsel defendant.  In

the present case, defendant's attorney was physically present at

the Broadview police station and the attorney was ready and

prepared to counsel defendant.  Therefore, under the rationale

set forth in McCauley and Chapman, defendant's constitutional rights were violated when the officers at the Broadview police

station refused to allow defendant access to Nocita.

	The State contends that despite these constitutional

violations, this court should affirm the trial court's judgment

denying defendant's motion to suppress statements because

defendant was not being interrogated at the time Nocita arrived

at the Broadview police station.  The State also contends that

the trial court's judgment should be affirmed because defendant made the incriminating statement after Ward-Hudson informed

defendant that an attorney had been to the police station to see

him.  Again, we must reject the State's contentions.

	The fact that defendant was not being interrogated at the

precise time Nocita arrived at the Broadview police station

carries no legal significance for purposes of determining whether

defendant made a knowing and intelligent waiver of his

constitutional rights under our state's constitution. 

Defendant's constitutional rights were violated when the officers

at the Broadview police station denied defendant access to

Nocita, who was physically present at the police station and

ready to counsel defendant.

	Moreover, this violation was not cured when Ward-Hudson read

defendant his Miranda rights and informed defendant that, hours before, an attorney had been to the police station to see

defendant and that she could make arrangements for him to call

the attorney.  First, there is no evidence in the record

indicating that Ward-Hudson told defendant that Nocita had been

sent to the police station by defendant's girlfriend, Alicia May. 

If defendant had been aware of this fact, he might have refused

to make any further statements until he was allowed to speak to

Nocita.  In this regard, the supreme court in McCauley stated:

		"'Miranda warnings refer only to an abstract right to counsel.  That a suspect validly waives the presence of

counsel "only means that for the moment the suspect is foregoing the exercise of that conceptual privilege ***. To

pass up an abstract offer to call some unknown lawyer is

very different from refusing to talk with an identified

attorney actually available to provide at least initial

assistance and advice ***.  A suspect indifferent to the

first offer may well react quite differently to the

second."'[Citations.]" McCauley, 163 Ill. 2d at 445.

	Second, the police conduct here is not merely a failure to

supply general information, but a failure to apprise defendant of

communications from his attorney bearing directly on the right to

counsel.  In fact, the record demonstrates that the State Police

actions were deceitful.  The record shows that Delaney never

showed defendant or the ASA the note that Nocita left for

defendant at the police station.  In addition, Ward-Hudson

testified that Delaney never showed her the note.  Rather,

Delaney testified that shortly after he received the note, he

disposed of it.  Nocita gave uncontested testimony that the note

informed defendant that he should not make any statements until

his counsel was present.

	The police conduct in denying defendant access to Nocita,

who was physically present at the police station, and then not

allowing defendant to read the note the attorney left for him

denied defendant information necessary to knowingly and

intelligently waive his constitutional rights.  The police

conduct violated defendant's privilege against self-incrimination as well as his right to due process.

	Moreover, the supreme court's decision in Smith demonstrates that the constitutional violations were not cured when defendant

was allegedly given Nocita's business card.  As an initial

matter, we note that the record indicates that defendant never

actually received Nocita's business card.  Ward-Hudson testified

that when she went to the holding cell to speak with defendant,

she did not show him Nocita's business card, she only informed

defendant that earlier that afternoon an attorney had been to the

Broadview police station to see him.

	Smith addressed the issue of whether a custodial suspect's statements were properly suppressed as violative of the right to

counsel during a custodial interrogation.  In Smith, the defendant was arrested and charged with murder and armed robbery

on September 1, 1978.  On the morning of September 2, defendant

met with an attorney who agreed to represent defendant. Smith, 93 Ill. 2d at 181.  Later that day, the attorney telephoned his

partner and asked her to consult with defendant at the jail.  The

partner arrived at the jail at approximately 3 p.m., on September

2.  The partner was told by an employee at the jail that she could not see defendant because he was experiencing heroin

withdrawal. Smith, 93 Ill. 2d at 183.  The partner then asked the employee to give defendant her business card, on which she had

written that she was a partner of the attorney that defendant had

spoken to earlier and that defendant should not provide any statements to the police without the presence of one of his

attorneys.  The defendant received the business card but was not

told of the partner's request to see him. Smith, 93 Ill. 2d at 183.  On September 3, the defendant gave an incriminating

statement confessing to murder.  The Smith court found that defendant did not knowingly and intelligently waive his right to

counsel since the police interfered with his attorney's attempts

to consult with him. Smith, 93 Ill. 2d at 186.

	In Smith, similar to the present case, the State argued that defendant's waiver of right to counsel was knowing and

intelligent since defendant had received the partner's business

card.  The Smith court rejected the State's argument, stating:

	"[W]ithout [defendant] being informed that [the partner] had

also requested to confer with him, the card and message were

of little value.  Simply receiving the card easily could

have led the defendant to believe his lawyers were too busy

that weekend to consult with him in person or were

disinterested in his case or welfare.  Receiving the card

and no more would have chagrined and disappointed the

defendant in the character of representation he was

receiving from those who he believed were his attorneys. 

Accepting the State's argument would, as the defendant

observes, permit police to isolate a suspect from his

counsel and regulate or determine what information or advice

a suspect is to receive." Smith, 93 Ill. 2d at 189-90.

	Such incommunicado interrogation as mentioned in Smith is exactly what occurred in the present case.  The record shows that

the police interrogated defendant while denying him access to his

attorney.  The officers also prevented defendant from reading the

note the attorney left for him at the police station and the

officers prohibited defendant from making any telephone calls.

Incommunicado interrogation and the surrounding coercive

environment likely to result from this objectionable practice is

precisely the type of scenario previously condemned by the United

States Supreme Court in Escobedo v. Illinois, 378 U.S. 478, 12 L. Ed. 2d 977, 84 S. Ct. 1758 (1964), and Miranda v. Arizona, 384 U.S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602 (1966). See McCauley, 163 Ill. 2d at 424.  In sum, we find that a custodial suspect's

state constitutional rights to due process and against self-

incrimination under sections 2 and 10 of article I of the

Illinois Constitution of 1970 are violated where an attorney who

is physically present at the place the custodial suspect is being

held is denied access to the custodial suspect or where

authorities prevent a custodial suspect from receiving written

communications from an attorney that directly relate to the

custodial suspect's right to counsel.

II. Conclusion

	Accordingly, for the reasons set forth above, we reverse

defendant's conviction and remand for a new trial.  Since we have

decided that this case should be retried, we will not address defendant's contentions regarding the prosecutor's rebuttal

closing arguments or the issues pertaining to defendant's

enhanced sentence. 

	Reversed and remanded.

	HOFFMAN and WOLFSON, JJ., concur.