holding co-defendant's mere presence in police station, absent any suggestion that the defendant believed or knew that his co-defendant had implicated him in the crime, could not constitute an intervening circumstance
How later courts described this case
- holding co-defendant's mere presence in police station, absent any suggestion that the defendant believed or knew that his co-defendant had implicated him in the crime, could not constitute an intervening circumstance
- upholding the trial court's conclusion that the suspect's "home" for Fourth Amendment purposes was his brother's residence, where the suspect had been residing for at least seven days and appeared to intend to reside indefinitely, and, therefore, police needed an arrest warrant to enter the premises
- stating that “confrontation with untainted evidence, which induces in the defendant a voluntary desire to confess, may be a legitimate intervening circumstance”
- stating the voluntariness of the consent -7- is a question of fact determined from the totality of the circumstances and the State bears the burden of proving the consent was truly voluntary
Written by the judges who cited it.
The opinion
JUSTICE SIMON, concurring:
I join fully in the well-reasoned majority opinion. My concurrence is addressed to the precipitate action of the appellate court in deciding the appeal without benefit of a brief from the defendant, the prevailing party in the trial court. As the majority states, the defendant’s failure to file an appellate brief apparently resulted from a clerical error in the public defender’s office. (117 Ill. 2d at 202.) The trial judge held, as we do today, that the defendant’s arrest should be quashed and his statements suppressed. In these circumstances, the decision of the appellate court to resolve the appeal involving a defendant charged with murder who had no appellate representation at all was pointless.
The appellate court believed that consideration of the merits of the State’s appeal was proper under the authority of First Capitol Mortgage Corp. v. Talandis Corp. (1976), 63 Ill. 2d 128 . That case, however, involved the failure of a party to file a brief in a civil suit. The consequences of counsel’s negligence in a criminal appeal are much harsher; while a negligent attorney in a civil case is liable for damages, “no attorney can restore his client’s lost liberty.” People v. Brown (1968), 39 Ill. 2d 307, 311 .
In Brown this court observed that dismissal of a criminal defendant’s appeal because of his lawyer’s default in not filing a brief would be “repugnant to commonly held notions of justice and fair play.” ( 39 Ill. 2d 307, 310 ; accord, People v. Mims (1980), 82 Ill. 2d 63 ; People v. Aliwoli (1975), 60 Ill. 2d 579 .) Inscribed upon the Supreme Court building in Springfield is the imperative “audi alteram partem” which means “hear the other side.” A reviewing court that decides an important question in a murder case without briefing or argument for the defendant ignores that directive.
Here, had the appellate court inquired about the status of the brief instead of ignoring the defendant when no brief was forthcoming, the clerical error in the defender’s office would no doubt have been discovered and the brief would have been filed. No intentional disregard of the appellate court appears to have been involved here. Had the appellate court exhibited more patience, assisted by a defendant’s brief it might have affirmed the circuit court and made it unnecessary for us now to be affirming the circuit court and reversing the appellate court. In any event, the appellate court should have withdrawn its opinion and set the case for briefing and argument when it was apprised of counsel’s error.