Petition for Writ of Certiorari — Rolando Calderin, Petitioner v. Illinois

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2017 IL App (1st) 150730-U

No. 1-15-0730

November 15, 2017

Third Division

NOTICE: This order was filed under Supreme Court. Rule 23 and may not be cited as

precedent by any party except in. the limited circumstances allowed under Rule 23(e)(1).

IN THE

APPELLATE COURT OF ILLINOIS

FIRST DISTRICT

THE PEOPLE OF THE STATE OF ILLINOIS,

)

)

)

)

)

)

)

)

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Plaintiff-Appellee,

V.

ROLANDO CALDERIN,

Defendant-Appellant.

Appeal from the

Circuit Court of

Cook County.

No. 12 C 16868

Honorable

Vincent M. Gaughan,

Judge Presiding.

JUSTICE HOWSE delivered the judgment of the court.

Justices Fitzgerald Smith and Lavin concurred in the judgment.

LWJ

PJ II

¶1

Held: Where defendant initiated further conversation with detectives after being advised

of and invoking his right to counsel under Miranda, defendant waived his right to

have counsel present during the continuation of the interview in which he

admitted to shooting the victim. Therefore, the trial court's denial of defendant's

motion to suppress his statements is affirmed.

¶ 2-

Following a jury trial, defendant Rolando Calderin was convicted of first degree murder

and sentenced to 51 years in prison. On appeal, defendant contends his conviction should be

reversed because the trial court erred in denying his motion to suppress statements he made to

affirm.

¶3

Defendant was charged with the July 14, 2012, shooting death of Mark Carney. In

interviews by Chicago police detectives on August 13 and 14, 2012, defendant initially denied

being the gunman but eventually admitted to shooting the victim.

¶4

Defendant moved to suppress his inculpatory statements, asserting he was. interrogated

after he had asserted his fifth amendment rights to remain silent and to have counsel present

during questioning. Defendant also argued that detectives coerced his statements with 'promises

of leniency.

¶5

At the hearing on defendant's motion to suppress, Chicago police detective Daniel Stanek

testified defendant was arrested for this offense at 12:15' p.m. on August 13, 2012 Dëfëndant

was 27 years old. Detective Stanek and two other detectives, including Detective Dale Potter,

began interviewing defendant at about 4 p.m. at the Area 1 police station. Defendant was advised

of his Miranda rights, at the beginning of each day of interviews and indicated he understood

those rights.

¶6

In the August 13 interview, defendant told the detectives he had been a member of the La

Raza gang since he was 14 years old and was in the area of the shooting. Defendant saw Eric-.

Salgado drive up in his car, which was blue or black; another 'person defendant described as a

"Pisan" was also in the car. Detective Stanek told defendant that witnesses had placed defendant

in Salgado's car, and defendant denied being in his car. Defendant said he saw Salgado that night

and they did cocaine. Salgado had a gun on his lap.

-2-

Defendant said Salgado was not driving the black car; the "Pisan" was driving. Defend

ant also

denied that a person named Lupe was in the car. Detective Stanek told defendant that

evidence telling us one thing and you're telling us the exact opposite; Right now, it's

"we have

making you

appear like you're not telling us the truth."

¶8

When Detective Stanek was asked if it was "clear to [him]" whether defendant asked

a lawyer during his interview, the detective responded that he "attempted to clarify

for

because it

was not clear to me," at Which point defendant indicated he wanted to speak to the detectiv

es.

¶9

The interviews with defendant were audio- and video-recorded and were published

court during Detective Stanek's testimony. A copy of that recording is included in

to the

the record on

appeal and depicts the following exchange:

"DETECTIVE POTTER: Was it something that got out of control?

DEFENDANT: It just got out of control.

DETECTIVE POTTER: Was it something to do with do with dope? Were you just f

--- ed

up? Drinking too much or were you just letting your temper get the best of you?

DEFENDANT: Ijust

--

DETECTIVE STANEK: Did it have to do with the Ambrose [gang] ramming your

and causing sh-- with you guys?

DEFENDANT: Yep.

DETECTIVE STANEK: So tell us what happened, dude.

DEFENDANT: Think I can make a phone call?

-3-

car

procedure. If you want a lawyer, we're done, we walk out of here and we conduct our

investigation without talking to you and, your side of the story doesn't come out.. It's as

simple as that. If you want to keep talking to us, we can do that. If you want an attorney,

we're done. So what do you want to do?

.

.

DEFENDANT: You gonna give me that call?'.

.

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DETECTIVE STANEK: I'm not gonna ,tallc to ya. You can contact your attorney after

we're' done with our investigation. But at this point if you got an attorney and you got a

phone number, I'll call him and let him know yOu're here. But I cannot let you make a

phone call while you're in custody here. [T]he reason being, I don't know who you're

gonna call on that phone. So I just can't let you make a phone call. I'll contact an attorney

for you if you got his name and number.

DEFENDANT: No, I don't.

DETECTIVE STANEK: Okay. Well, then

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DEFENDANT: I just wanna see if I could get a lawyer.

DEFENDANT (nodding): Yeah."

10 At that point, both detectives stood 'up and Detective Stanek said, "Okay." Defendant

'.

then stated "No, I'm saying, I'm not done talking" The detectives sat down and Detective

Stanek said "Okay, all right."

1 11

The following exchange then took place:

"DETECTIVE POTTER: Well, here's the deal. This is a procedural thing.

DEFENDANT: I understand. I understand. I understand. But you're saying

-

DETECTIVE POTTER: We could call the, contact an attorney for you, all right? I mean,

I could, I would need someone to call. You could give me a name of someone to call, but

once that happens, we're done talking to you. That's just the way it works. If you feel that

you want to talk to us without an attorney, you've got to tell us that now.

DEFENDANT: It doesn't do me any good. That's what I'm telling you.

DETECTIVE POTTER: It's basically

--

I'm. going to bundle it down to a yes or no

answer. You either want us to contact an attorney for you or

DEFENDANT: Ijust want man, know what I'm saying. F--- it, man. We all going down,

I guess. Know [what] I'm saying? Cause I know, I know ya'll could just

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DETECTIVE POTTER: You're trying to put this to sleep, trying to put this to, bed. I

know that's what you're trying to do.

DEFENDANT: Who?

-5-

DETECTIVE POTTER: You are. 'You're just trying to get it over with. Is that what

you're trying to do? Is that what you're trying to tell me?

DEFENDANT: Trying to get what over?

DETECTIVE POTTER: This whole deal.

DEFENDANT: Yeah, I'm trying to get all that sh-- over with, man.

DETECTIVE POTTER: Do you want us I got to *put it out there, I gotta do it again.

DEFENDANT: Come on. I want to talk to you, man."

¶ 12 After that exchange, defendant made statements inculpating himself in Camey's

shooting. Defendant said there was a history between the La Raza gang and the Ambrose gang

and some of his friends had been shot due to conflicts with the Ambrose gang. Detective Stanek

asked defendant if that was why he "got out and shot the dude" and defendant replied,

"Something like that." Detective Stanek testified he thought defendant "wanted to see about an

attorney" but did not.assert his right to counsel.

1 13

..

.

.

The trial court denied defendant's motion to suppress his statements, finding defendant

did not make an unequivocal request to have an attorney present. The court also found that.

defendant waived his right to counsel when, he called the detectives back into the room after the

discussion about an attorney. According to the court, "the telltale event" occurred when the

detectives got up to leave the room and defendant "said no and brought them back in." In

addition, the court found the State did not promise leniency in exchange for a statement.

¶ 14 At trial, Salgado provided the main eyewitness testimony for the State. Salgado testified'

he was formerly a member of the La Raza gang and that he knew defendant "from the

neighborhood." Salgado agreed to 'drive defendant to buy marijuana, and defendant told Salgado

car and they left the scene; defendant told Salgado not to tell anyone about what just occurred.

Salgado identified defendant to police as the gunman on August 12, 2012. Detective Potter

testified about defendant's interrogation, and the video recording was published to the jury.

¶ 15 The jury found defendant guilty of first degree murder. The jury also found that

defendant personally discharged a firearm causing death.

1 16

Defendant filed a motion for a new trial, asserting the trial court should have granted his

motion to suppress bedause he requested counsel during his interrogation and also because the

detectives implied they would treat him with leniency if he admitted to shooting the victim. The

trial court denied the motion for a new trial. The court sentenced defendant to a total of 51 years

in prison, which included a 257year sentence enhancement for personally discharging a' firearm

resulting in death.

¶ 17 On appeal, defendant contends the trial court erred in denying his motion to suppress his

statements because he clearly invoked his constitutional right to counsel at four separate points

during his interrogation. He argues the trial court's finding that he asked detectives to remain in

the room was not relevant because the "detectives did not cease their interrogation."

¶ 18 As a threshold matter, we note the State's argument that defendant cannot now claim he

invoked his right to counsel four times when speaking With the detectives. The State asserts that

defense counsel argued in support of the suppression motion that defendant's request to ask his

girlfriend to call an attorney, was ambiguous but that defendant clearly invoked his right to

counsel when he answered "yeah" to Detective Potter's inquiry of "So you're, at this point

-7-

• for the first time on appeal that he requested counsel four times. Defendant responds he is not

required to assert on appeal the identical grounds on which the suppression motion was based.

¶19 When appealing a trial court ruling on a motion to suppress evidence, a defendant may

rely an a legal theory that was not raised below that has a factüal'basis 'in the record. People v.

Johnson, 208 Ill. 2d 118, 129-30 (2003) (citing People v York, 29 111. 2d 68, 69 (1963)) When

reviewing a ruling on a motion to suppress, the trial court's factual findings are reviewed for'

clear error, but this court "remains free to assess the facts in relation to the issues and draw its

own conclusions' when deciding what relief should be granted." People v. Gonzalez-Carrera,

2014 IL App (2d) .130968, ¶ 15 (quoting People v. Hackett, 2012 IL 111781, ¶ 18). The trial

court's overall ruling on a motion to suppres's 'is a legal question that this cOi''re'views de novo,

and this court 'may affirm the ruling of the trial court on a, motion .to suppress on any basis in the

•

'record. Id.; see Johnson, 208 M. 2d at 130 (and cases quoted therein) ("[T]he question before a

reviewing court is the correctness. of the result reached by a trial court, and not the correctness of

the reasoning upon' which that result" was reached.") Accordingly, defendant is 'free to assert On

appeal that he 'invoked his right to counsel at' numerous points during the encounter with

detectives.

¶ 20

'

The review of a circuit court's ruling on ,a motion to suppress presents questions of law

and of fact. People v. Richardson, 234 Iii. 2d 233, 251 (2009). This court defers to the fmdings..

of fact and credibility determinations made by the circuit court, reversing them only if they are

contrary to the manifest weight of the evidence. Id. However, this court will review de novo the

ultimate legal question of the ruling on the motion to suppress. Id.

-8-

and to have counsel present during questioning, as promised in the familiar warnin

gs of Miranda

v. Arizona, 384 U.S. 436, 469-73 (1966). An accused who requests counsel

at any time during an

interview is not subject to further questioning until an attorney has been made

available or the

accused validly waives his earlier request for the assistance of counsel. Edwar

ds v. Arizona, 45.1

U.S. 477, 484-85 (1981). An accused can Waive his earlier request for counse

l by initiating

further communication with police. Id.; People v. Olivera, 164 III. 2d 382,

¶ 22

.'

38990 (1995).

A reviewing court first considers whether the accused actually invoked

the right to

counsel. Edwards, 451 U.S. at 485-86 n.9. If it is determined that the accuse

d invoked the right

to counsel, his responses to additional questioning will be admitted into eviden

ce only where the

accused: (a) initiated further discussions with police; and (b) knowingly and intellig

ently waived

the right to counsel that was earlier invoked. Id. The facts of this case require

an analysis of all

three of those factors.

¶ 23 As to the initial inquiry of whether the accused invoked his right to counsel, Miranda

advises that questioning must cease if the accused "indicates in any manner

and at any stage of

the process that he wishes to consult with an attorney before speaking." Mirand

a, 384 U.S. at

444-45. Once, an accused has requested counsel, he cannot be subjected to further

questioning

"until a lawyer has been made available or the individual reinitates conversation.

" Davis v

United States, 512 U.S. 452, 458 (1994); In re Christopher K, 217111. 2d 348,

376 (2005).

¶ 24 Whether the accused has invoked his right to counsel is an objective inquiry which "at

minimum requires some statement that reasonably can be construed as an expres

sion of a desire

for counsel." People v. Harris, 2012 IL App (1st) 100678,

¶ 69 (citing Davis, 512 U.S. at 459).

A reference to an attorney that is ambiguous or equivocal in that the accused "might be invoking

the right to counsel" does not require the cessation of questioning. Davis, 512 U.S. at 459

(emphasis in original); Christopher K, 217 Iii. 2d at 378. The invocation of the right to counsel

must be sufficiently free from indecision or double meaning so as to reasonably inform

authorities that the accused wishes to speak to counsel Id at 382, Harris, 2012 IL App (1st)

100678,J69.

1 25

Here, defendant first mentioned an attorney after Detective Stanek asked defendant if the

incident had "to do with the Ambrose [gang] ramming your car and causing sh-- with you

guys[.]" Defendant asked to make a phone call: In response to the detective's question of whom

he wanted to call, defendant stated: "Call my girl, see if I could get a lawyer." Detective Stanek

told' defendant the interview would', stop if he 'called an attorney-. Defendant then asked' if 'the

detective was "gonna give me that call." Detective Stanek told defendant could contact his

-'

'attorney "after we're done with our investigation."

¶ 26 In that exchange, defendant made an unequivocal assertion of his right to counsel.

Defendant stated he wanted to call his girlfriend to. "see if [he] could get a lawyer." That

unambiguous reference to an attorney was a sufficient invocation of defendant's right to speak to,

an attorney.: Detective Stanek apparently interpreted. 'that request as such, responding that the.

interview would end if defendant called an attorney.

$ 27

Defendant's words are comparable to those in People v. Eichwedel, 247 111. App. 3d 393,

398 (1993) (defendant asked investigator to "call Jeff Williams" who was an attorney), and in

People v. Schuning, 399 Ill. App. 3d 1073, 1087 (2010) (State stipulated that defendant asked to

use the phone to call his attorney). Although' defendant asked to contact his girlfriend and not

-10-

'

contact an attorney directly, his request was clear and sufficiently free

from hesitation.

Defendant's words here are distinguishable from the more tenuous reques

ts summarized in

Schuning, 399 Iii. App. 3d at 1087, in which the defendants were found not

to have

invoked their

right to counsel. See Davis, 512 U.S. at 455 ("maybe I should talk to a lawyer

"); Christopher K.,

217 Iii. 2d at 374 (minor asked officer, "do I need a lawyer?); People v. Kruege

r, 82 Ill. 2d 305,

311(1980) ("maybe I ought to have an attorney"). The State contends Eichwe

del and Schuning

are distinguishable because the defendants in those cases asked to call a

specific attorney;

however, the State cites no authority that a defendant is required to provid

e a particular

attorney's name in invoking the right to counsel.

1 28

Furthermore, though we find that defendant, invoked his right to counsel by

stating he

wanted to call his girlfriend to see about getting a lawyer, defendant's next statem

ent removed all

doubt as to his request After the detective told cefendant they could contac

t an attorney if

defendant had his name and phone number, defendant said: "I just wanna

see if I could get a

lawyer." Detective Potter responded: "So, you're, at this point, you're asking

for an attorney, is

that correct?" Defendant nodded and said "Yeah." Defendant again invoked

his right to counsel

by responding affirmatively when asked by Detective Stanek if he wanted an

attorney. See Smith

v. illinois, 469 U.S. 91, 97 (1984) (after being advised of his rights to consul

t an attorney and

have attorney present during questioning, defendant invoked right to counsel

when he answered

"Uh, yeah, I'd like to do that").

¶ 29 Having found that defendant invoked his right to counsel, we proceed to consider

whether defendant then initiated further communications, exchanges or conver

sations with the

police. See Edwards, 451 U.S. at 484-85. The first inquiry is whether the accuse

d, and not the

-11-

•

any Miranda waiver that comes as a result of additional contact must be voluntary and at the

behest of the accused, and not instigated by the words or actions of the police Maryland v

Shatzer, 559-U.S.- 98, 104 (2010)

¶ 30 . To initiate further discussion, the accused must make. a statement. that evinces a

...

"willingness and a desire for generalized discussion about. the investigation." Bradshaw, 462

U.S. .at 1045-46; Woolley, 178 111. 2d at 200 The suspect "does not have to explicitly state that

he. wishes to resume interrogation." Woolley, 178 Ill. 2d at 201. The burden is upon the State to

show that events following a defendant's invocation of the right to counsel demonstrate a waiver

of his fifth amendment right to have counsel present during the interrogation: Bradshaw, '462'''

U.S. at 1044; Olivera, 164 Iii. 2d at 390. Whether the accused has initiated a conversation with

=

police is determined by examining the totality of the circumstances, and the ruling of the trial

court on that issue will not be disturbed unless it is manifestly erroneous. People v. Wright, 272

Ill. App. 3d 1033, 1042 (1995).

T 31

,

.

•,

Here, in denying defendant's motion .to suppress, the trial court found that even though

defendant had invoked his right to counsel, "the, telltale event" occurred when the detectives, got

up to leave the room and defendant "said no and brought them back in." Based: upon those

events, the trial court's determination that defendant initiated further conversation with. the

detectives was not manifestly erroneous.

•

¶ 32 After' defendant responded "yeah" to Detective Potter's question of whether he was

•

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•

asking-- for a lawyer, both detectives got up from their chairs. Defendant then said: "No, I'm

-12-

'

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No 1-15-0730

saying, I'm not done talking." In doing so, defendant initiated additional contact with

the

detectives. This court has found a defendant waived his right to the presence of counsel

under

Miranda where, after requesting an attomey,'the defendant initiated further contact

with a

police'

detective when the detective started to leave the room. People v. Weathersby, 138 Ill. App

3d

310, 315-16 (1985);. see also People v. Wych, 248 Ill. App. 3d 818, 828-29 (1993).

(the

,

defendant's statement that he would answer questions after invoking his. right to an attorney

initiated a new conversation with police, and the defendant's subsequent statements

were

admissible).

1 33 After defendant said he was "not done talking," the detectives sat back down, and the

conversation resumed. Detective Potter reiterated that an attorney could be called for defenda

nt.

Detective Potter told defendant: "If you feel that you want to talk to us without an attorney

,

you've got to tell us that now." Defendant responded that "doesn't do me any good." Defend

ant

said he was "going down" and that he was trying to "get all that sh-- over with." When Detectiv

e

Potter said, "Do you want us

--

I got to put it out there. I gotta do it again," defendant responded:

"Come on, I want to talk to you, man." By those remarks, defendant indicated a willingn

ess to

continue discussing the investigation against him.

134 Because defendant initiated additional communication with the detectives indicating a

desire to continue discussing the investigation, we move to the fmal inquiry: whether defenda

nt's

initiation of additional contact with the detectives, combined with the totality of the

circumstances, demonstrated that he knowingly and intelligently waived his right to have

other

counsel

present during questioning. Bradshaw, 462 U.S. at 1046; Olivera, 164 Ill. 2d at 390. Becaus

e

police may not coerce the suspect into waiving his previously asserted Miranda rights,

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No 1-15-0730

waiver by the defendant must be "unbadgered.". Minnick v. Mississippi, 498 U.S. 146, 150

(1990); see also McNeil v. Wisconsin, 50.1 U.S. .171, 177 (1991).

$ 35

.

After asking to call his girlfriend to see if he "could get a lawyer," defendant was told the

interview would stop and that an attorney would be called for him. Defendant then responded

• affirmatively when asked if he wanted 'a lawyer. However, defendant .reinitiated contact by

immediately stating he wanted to talk to the detectives as they, stood up to leave. Defendant also

later reiterated "I want' to talk to you" before making statements that implicated him in the..

shooting. Based upon the totality of the circumstances, defendant knowingly and intelligently

waived his right to have an attorney present during questioning.

T 36

.

In conclusion, although defendant invoked his right to have an attorney present during his

questioning by Detectives Stanek and Potter, 'he initiated further contact with the' detectives 'and

knowingly and intelligently waived his right to counsel. Therefore, defendant's inculpatory

statements following the waiver were admissible at trial.

T 37

.

'

Accordingly, the judgment of the trial court is affirmed.

¶ 38 Affirmed.

'

NEE

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IN THE APPELLATE COURT OF ILLINQI

FIRST JUDICIAL DISTRICT

JAN 1- Q 2fl1P

ee

THE PEOPLE OF THE STATE OF ILLINOIS,

-

O(hCG c(

!it:

Plaintiff-Appellee,

V.

No. 1-15-0730

ROLANDO CALDERIN,

Defendant-Appellant.

0

D E R

This cause coming to be heard on the

Petition for Rehearing

of Appellant and the Court being ful

ly advised in the premises;

IT IS HEREBY ORDERED that the Petiti

on for Rehearing is

denied.

JUSTICE

ORDER LJTERED

(J

r-

JUSTICE

•...-•

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JAN 13 2018

JUSTICE

APPELLATE COURT, nasr 6MV

Dated:

STATE OF ILL NOIS

AU221L)8 10

MAY 30 2018

SUPREME COURT OF ILLINOIS

SUPREME COURT BUILDING

200 East Capitol Avenue

SPRINGFIELD, ILLINOIS 62701-1

721

(217) 782-2035

DOC<E-TNGDERTMENT

Othce of the'Stal e Appete Leend2r

1.tC1,flm.,I

FIRST DISTRICT OFFICE

160 North LaSalle Street, 20th Floo

r

Chicago, IL 60601-3103

(312) 793-1332

TDD: (312) 793-6185

May 30, 2018

In re:

People State of Illinois, responden

t, v; Rolando Calderin,

petitioner. Leave to appeal, Appella

te Court, First District.

123293

The Supreme Court today DENIE

D the Petition for Leave to Appeal

in the above

entitled Cause.

The mandate of this Court will issu

e to the Appellate Court on 07/05/

2018.

Very truly yours,

Clerk of the Supreme Court