No. 3-94-0395

_________________________________________________________________

                                  IN THE

                        APPELLATE COURT OF ILLINOIS

                              THIRD DISTRICT

                                A.D., 1996

PEOPLE OF THE STATE OF             ) Appeal from the Circuit

   ILLINOIS,                       ) Court of the 14th Judicial

                                   ) Circuit, Henry County,      

     Plaintiff-Appellee,           ) Illinois

                                   )

          v.                       ) No. 93-CF-253

                                   )

FENTON JONES,                      )

                                   ) Honorable

     Defendant-Appellant.          ) Dana R. McReynolds

                                   ) Judge, Presiding

_________________________________________________________________

    PRESIDING JUSTICE HOLDRIDGE delivered the Opinion of the Court:   

     Following a jury trial in the circuit court of Henry County,

the defendant, Fenton Jones, was convicted of two counts of

aggravated criminal sexual assault, and sentenced to two concurrent

eight year terms of imprisonment.  On appeal the defendant

maintains that the trial court erred in denying his motion in

limine wherein he sought to suppress certain written and oral

statements he made to police investigators following a  request for

representation by counsel.  We affirm.  

               FACTS

     The defendant was charged with committing acts of sexual

penetration on his niece and step-daughter, both of whom were

approximately eight years old at the time the attacks allegedly

occurred.  

     At the hearing on defendant's motion to suppress, Lieutenant

Rod Huber of the Henry County Sheriff's department testified that

on July 28, 1993, he called the defendant at his work in Princeton,

Illinois and asked the defendant to meet him during defendant's

lunch break.  The defendant agreed and arrived at the Bureau County

Sheriff's office at 11:30 a.m., where he was met by Huber and Lisa

Trevier, an investigator with the Illinois Department of Children

and Family Services.  

     Huber advised the defendant of his Miranda rights, after which

the defendant signed a written wavier of those rights.  Huber then

told the defendant that he and Trevier were investigating an

allegation that the defendant had sexually molested S.J., the

defendant's niece.  The defendant denied the allegation, and

shortly thereafter, Huber told the defendant he could leave. 

Before the defendant left, however,  Trevier informed him that she

was going to talk to his step-daughter, A.S., and other children

who resided in defendant's home.   

     After Huber and Trevier visited the defendant's home and

interviewed his wife, Melody Jones, and her children, Huber

telephoned the defendant and requested that he agree to a second

interview.  The defendant agreed, and a second interview was held

at the Bureau County Sheriff's office shortly after 5:00 p.m. 

Huber and the defendant went to an interview room, according to

Huber, they were alone.  Huber told the defendant that they needed

to discuss a new allegation that the defendant had sexually

molested his step-daughter.  When Huber began to advise the

defendant again of his Miranda rights, the defendant stated that he

wanted to have an attorney present.  

     Huber testified that, upon hearing the defendant ask for an

attorney, he told the defendant there would be no more questions,

that the defendant was not under arrest and that he was free to go. 

Huber then told the defendant that the case would still be under

investigation, that it involved a serious charge, and that the

defendant would be sent to prison if he was convicted.  After

hearing these remarks by Huber, the defendant broke down and cried

and said that he wanted to talk.  Huber told the defendant that he

could not talk to the defendant because of his request for an

attorney.  Huber told the defendant to leave and come back later if

he wanted to talk.  Huber testified that at no time during the

discussion did he yell or shout at the defendant.

     Huber further testified that the defendant then left the

building.  A short time later, an officer told Huber that the

defendant was back and wanted to talk to him.  Huber met the

defendant in the lobby and asked what he wanted.  The defendant

said he had gone out and given his car keys to a co-worker, who

Huber surmised had accompanied the defendant to the police station.

     Huber, Trevier, the defendant and Officer James Whitko then

went into an interview room.  Whitko read the defendant his Miranda

rights, and the defendant then executed a written waiver.  Huber

questioned the defendant, who admitted to acts of sexual

penetration of both A.S. and S.J.  Huber then took a written

statement, and the defendant signed each page of the statement, as

well as a written waiver form allowing them to transport him to

Henry County.       

     The defendant's testimony at the suppression hearing

contradicted Huber's testimony concerning what transpired after the

defendant requested to speak to an attorney.  The defendant

testified that after his request Huber became angry and yelled at

him.  Furthermore, Huber told the defendant that he would be going

to prison for a long time, maybe 30 years, that the defendant's

wife and children did not want him around anymore, and that she had

packed some of his clothes, which Huber had in his squad car.  

     The defendant testified that he then told Huber that a co-

worker was waiting for him in his car.  Huber told the defendant to 

give his car keys to the co-worker, and tell him that the defendant

would be there for a while.  The defendant testified that he left

the building to give his car keys to his co-worker and immediately

returned to the building as Huber instructed.  According to the

defendant's testimony, Huber watched him from a window and was

waiting for him at the door of the police station when he returned.

     In denying the defendant's motion to suppress, the trial court

made the following findings of fact: (1) Huber reacted to the

defendant's request for counsel, not by yelling, but with "a

different tone of voice;" (2) after the defendant indicated his

desire to speak with an attorney, Huber told the defendant that the

investigation would continue and the defendant could go to prison

for a long time; (3) defendant left the building, spoke to the co-

worker, then returned to the police station and asked someone to

tell Huber that he wished to speak with him.  

     The court concluded that the defendant's request for counsel

had been honored by Huber, and that the defendant had re-initiated

contact with the police by going back inside the police station and

asking for Huber.  The trial court noted that its ruling might have

been different if the court found that Huber had watched the

defendant from a window , as the defendant had maintained, and

waited at the police station door  for the defendant to return.

          ANALYSIS

     The defendant maintains on appeal that the trial court erred

in finding that by returning to the police station after being

allowed to leave, the defendant had re-initiated communication with

Huber, thereby waiving his previous assertion of the right to

counsel under Miranda.  We hold otherwise and affirm the

determination of the trial court.

          As a preliminary matter, we must first address the

appropriate standard of review.  Ordinarily, a ruling on a motion

to suppress will not be disturbed unless it is manifestly

erroneous.  People v. Frazier, 248 Ill. App. 3d 6 (1993).  Where,

however, the facts and the credibility of the witnesses are not in

dispute, the issue is subject to de novo review.  Frazier, 248 Ill.

App. 3d 6; People v. Woods, 241 Ill. App. 3d 285 (1993).  Inasmuch

as the facts in this case were in dispute, we will apply the

manifestly erroneous standard.  

     Next, we address the People's contention, raised for the first

time on appeal, that the defendant that was not in custody or

otherwise deprived of his freedom at the time of his exchange with

Huber, and therefore he was not entitled to Miranda protections. 

The People maintain that the defendant's attempt to invoke his

Fifth Amendment right to counsel as stated in Miranda, before he

was subject to custodial interrogation was ineffectual and police

need not stop questioning.  P. v. Lucas, 132 Ill.2d 399 (1989).  

     The general rule that, in support of a judgment, a prevailing

party may raise any reason appearing in the record does not apply

when the new theory is inconsistent with the position adopted

below, or the party has acquiesced in contrary findings. People v.

Franklin, 115 Ill.2d 328, 336 (1987).  We believe that in this

case, the People acquiesced to a finding by the trial court that

Miranda applied and therefore should not be allowed to maintain a

new theory on appeal that is inconsistent with the position taken

by the People before the trial court.    

     Moreover, even though we find that the People are bound by the

trial court's determination that the defendant was entitled to

Miranda protections, we nonetheless affirm the denial of the

defendant's motion to suppress, as we find that the trial court's

determination that the defendant re-initiated communication with

the police is not manifestly erroneous.  

     It is well-settled that once an accused invokes his right to

counsel, interrogation must cease until an attorney has been made

available.  Edwards v. Arizona, 451 U.S. 477 (1981).  If the

interrogation continues without the presence of an attorney and a

statement is taken, the prosecution bears a heavy burden to prove

that the defendant initiated further communication, exchanges or

conversations with the police. Edwards, 451 U.S. at  484-85. 

     In People v. Winsett, 153 Ill. 2d 335, 350 (1992), our supreme

court, commenting on Edwards, held that once a defendant invokes

his right to counsel the prosecution is barred from using any

statement later made by the defendant in its case in chief "unless

the State can establish (1) the accused initiated further

discussions with the police; and (2) that he knowingly and

intelligently waived the right he had invoked." (Emphasis in

original.)  Winsett, 153 Ill. 2d at 350.  

     Edwards, therefore, acknowledges that a suspect may waive his

fifth amendment right to counsel after it is invoked. In order to

establish waiver, a two-prong analysis must be considered: first,

the preliminary inquiry is whether the defendant initiated the

conversation in a manner evincing a willingness and a desire for a

generalized discussion about the investigation; and second, the

inquiry is whether by the defendant's initiation of conversation,

coupled with the totality of other circumstances, the defendant

knowingly and intelligently waived the right to counsel's presence

during questioning. People v. Hicks, 132 Ill. 2d 488, 493 (1989)

(citing Oregon v. Bradshaw, 462 U.S. 1039 (1983)).

     The burden of proving that a defendant initiated further

conversations with the police after previously invoking his right

to counsel must be borne by the People.  People v. Trotter, 254

Ill. App. 3d at 523.  Whether a defendant has in fact initiated a

conversation with the police is determined by examining the

totality of the circumstances, and the circuit court's

determination on that issue will not be disturbed unless it is

manifestly erroneous. People v. Allen, 249 Ill. App. 3d 1001, 1016

(1993); People v. Gray, 212 Ill. App. 3d 613, 616 (1991). 

      In the matter sub judice, the trial court determined that the

defendant knowingly and intelligently waived the right to counsel

after previously invoking that right when he voluntarily returned

to the police station and sought out Huber in order to re-initiate

a conversation with him concerning the investigation.  We cannot

say that the circuit court's determination was manifestly

erroneous.    

     Although the trial court implicitly found that the defendant

was subject to a custodial investigation, it made a factual

determination that the defendant was released and specifically told

by Huber that he was free to leave.  The trial court further

determined that when the defendant left the police station he was

not being watched by the police, nor was his freedom to leave

curtailed in any way.  The record supports a finding that the

defendant was well aware that the investigation would continue and

that he would continue to be the subject of the investigation, yet

he voluntarily returned to the police station and sought out Huber,

in spite of his previous assertion of the right not to speak to

Huber without the presence of counsel.  

     The defendant maintains that the brief period of time during

which he was outside the police station was not sufficient to

negate the coercive effect of Huber's statements immediately after

the defendant asked for an attorney.  We disagree.  Assuming,

arguendo, that Huber's statements constituted impermissible

interrogation, the defendant's leaving the police station was

sufficient to brake the chain of events from Huber's statements to

the defendant's re-initiation of contact.  See, People v.

Ravellete, 263 Ill. App. 3d 906, 913 (1994)(an unbroken chain of

events from the improper admonitions by the police to the

defendant's statements negated voluntariness of defendant's waiver

of previously asserted Miranda rights).    

     In affirming the trial court, we can think of no clearer 

example of the defendant re-initiating contact with the police than

the situation here, where the defendant, after asserting his right

to presence of counsel at questioning, is released from custody,

and leaves the police station only to return and seek out the

officer who questioned him, with the intent of answering questions

concerning the investigation.  Such acts show a desire for a

generalized discussion about the case, and the totality of the

circumstances indicate that defendant knowingly and intelligently

waived his right to counsel. People v. Hicks, 132 Ill. 2d at 493. 

     While the defendant disputes many findings of fact, we hold

that the trial court's findings are supported by the record in the

form of Huber's testimony, and based upon the evidence of record,

we cannot say that the court's determination was erroneous. 

     For the foregoing reasons, we affirm the judgment of the

circuit court of Henry County. 

     Judgment affirmed.

     McCUSKEY and MICHELA, JJ., concurred.