{ "id": 4269219, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. MARK J. LASHMET, Defendant-Appellee", "name_abbreviation": "People v. Lashmet", "decision_date": "2007-04-19", "docket_number": "No. 4\u201406\u20140026", "first_page": "1037", "last_page": "1044", "citations": [ { "type": "official", "cite": "372 Ill. App. 3d 1037" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "246 N.E.2d 285", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1969, "pin_cites": [ { "page": "287" } ], "opinion_index": 0 }, { "cite": "42 Ill. 2d 246", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2848008 ], "year": 1969, "pin_cites": [ { "page": "248" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/42/0246-01" ] }, { "cite": "789 N.E.2d 1216", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2003, "pin_cites": [ { "page": "1222" } ], "opinion_index": 0 }, { "cite": "204 Ill. 2d 363", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 609705 ], "year": 2003, "pin_cites": [ { "page": "370" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/204/0363-01" ] }, { "cite": "501 U.S. 171", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1108476 ], "weight": 3, "year": 1991, "pin_cites": [ { "page": "178-79" }, { "page": "168-69" }, { "page": "2209" } ], "opinion_index": 0, "case_paths": [ "/us/501/0171-01" ] }, { "cite": "451 U.S. 477", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6187603 ], "weight": 3, "year": 1981, "pin_cites": [ { "page": "486" }, { "page": "387" }, { "page": "1885" } ], "opinion_index": 0, "case_paths": [ "/us/451/0477-01" ] }, { "cite": "204 Ariz. 442", "category": "reporters:state", "reporter": "Ariz.", "case_ids": [ 732445 ], "weight": 2, "year": 2003, "pin_cites": [ { "page": "452" }, { "page": "100" } ], "opinion_index": 0, "case_paths": [ "/ariz/204/0442-01" ] }, { "cite": "592 N.E.2d 1036", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1992, "pin_cites": [ { "page": "1049", "parenthetical": "in which our supreme court concluded that in light of the Supreme Court's decision in Perkins I, an inmate who was working undercover for the Department of Corrections was under no obligation to give the defendant Miranda warnings prior to questioning him" } ], "opinion_index": 0 }, { "cite": "148 Ill. 2d 281", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3282880 ], "year": 1992, "pin_cites": [ { "page": "312", "parenthetical": "in which our supreme court concluded that in light of the Supreme Court's decision in Perkins I, an inmate who was working undercover for the Department of Corrections was under no obligation to give the defendant Miranda warnings prior to questioning him" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/148/0281-01" ] }, { "cite": "496 U.S. 292", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 12122654 ], "weight": 12, "year": 1990, "pin_cites": [ { "page": "296", "parenthetical": "Perkins I" }, { "page": "250-51", "parenthetical": "Perkins I" }, { "page": "2397", "parenthetical": "Perkins I" }, { "page": "296" }, { "page": "251" }, { "page": "2397" }, { "page": "296-97" }, { "page": "251" }, { "page": "2397" }, { "page": "296-97" }, { "page": "251" }, { "page": "2397", "parenthetical": "\"When a suspect considers himself in the company of cellmates and not officers, the coercive atmosphere is lacking\"" } ], "opinion_index": 0, "case_paths": [ "/us/496/0292-01" ] }, { "cite": "695 N.E.2d 423", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 1998, "pin_cites": [ { "page": "429" }, { "page": "429", "parenthetical": "\"Ploys to mislead a suspect or lull the suspect into a false sense of security- that do not rise to the level of compulsion or coercion to speak - are not within Miranda's concerns\"" } ], "opinion_index": 0 }, { "cite": "182 Ill. 2d 193", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 864525 ], "weight": 2, "year": 1998, "pin_cites": [ { "page": "206" }, { "page": "206" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/182/0193-01" ] }, { "cite": "686 N.E.2d 574", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1997, "pin_cites": [ { "page": "582" } ], "opinion_index": 0 }, { "cite": "177 Ill. 2d 368", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 317114 ], "year": 1997, "pin_cites": [ { "page": "384-85" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/177/0368-01" ] }, { "cite": "854 N.E.2d 317", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 2006, "pin_cites": [ { "page": "320" }, { "page": "320" } ], "opinion_index": 0 }, { "cite": "367 Ill. App. 3d 193", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 4265784 ], "weight": 2, "year": 2006, "pin_cites": [ { "page": "195" }, { "page": "195" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/367/0193-01" ] }, { "cite": "618 N.E.2d 1275", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 3, "year": 1993, "pin_cites": [ { "parenthetical": "Perkins II" }, { "page": "1279" }, { "page": "1281" } ], "opinion_index": 0 }, { "cite": "248 Ill. App. 3d 762", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2942316 ], "weight": 3, "year": 1993, "pin_cites": [ { "parenthetical": "Perkins II" }, { "page": "767-68" }, { "page": "770" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/248/0762-01" ] }, { "cite": "384 U.S. 436", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 12046400 ], "weight": 6, "year": 1966, "pin_cites": [ { "page": "444-45" }, { "page": "706-07" }, { "page": "1612" } ], "opinion_index": 0, "case_paths": [ "/us/384/0436-01" ] } ], "analysis": { "cardinality": 786, "char_count": 16714, "ocr_confidence": 0.773, "pagerank": { "raw": 5.12982294956584e-08, "percentile": 0.3230049319477699 }, "sha256": "832e7a98a122f87a3d959af94e151bc4beb7f3965f2d08cea937ea6a982866d2", "simhash": "1:e86a940567469f16", "word_count": 2703 }, "last_updated": "2023-07-14T16:46:01.247775+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. MARK J. LASHMET, Defendant-Appellee." ], "opinions": [ { "text": "PRESIDING JUSTICE STEIGMANN\ndelivered the opinion of the court:\nIn February 2005, the State charged defendant, Mark J. Lashmet, with solicitation of murder for hire in that defendant (while he was incarcerated at the Cumberland County jail), with intent that first degree murder be committed, hired David J. Marr to murder Jimmie L. Cummins (720 ILCS 5/8 \u2014 1.2 (West 2004)). In January 2006, defendant filed a motion to suppress incriminating statements he made to Marr while Marr was posing as a fellow inmate and acting on the State\u2019s behalf. Following a hearing later in January 2006, the trial court granted defendant\u2019s motion.\nThe State appeals, arguing that the trial court erred by granting defendant\u2019s motion to suppress. We agree and reverse and remand for further proceedings.\nI. BACKGROUND\nDefendant\u2019s January 2006 motion sought to suppress his incriminating statements to Marr on the ground that the State\u2019s conduct violated his fifth-amendment right against self-incrimination. Specifically, defendant\u2019s motion alleged as follows: (1) sometime prior to late December 2004, the State had charged him with \u201cvarious felony offenses,\u201d regarding which he was represented by counsel; (2) on December 29, 2004, defendant, who was an inmate at the Cumberland County jail, made certain incriminating statements to Marr, who was participating in an undercover police operation; and (3) Marr did not give defendant Miranda warnings (see Miranda v. Arizona, 384 U.S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602 (1966)) prior to asking him questions. Attached to his motion was a memorandum in support thereof. The memorandum indicated, in part, that in November 2004, defendant was incarcerated on charges of \u201caggravated battery, attempted murder [of Cummins,] and violation of bail bond,\u201d regarding which he was represented by counsel.\nAt the hearing on defendant\u2019s motion to suppress, which was held later in January 2006, the parties stipulated to the following facts. In mid-November 2004, defendant was incarcerated in the Cumberland County jail. On November 17, 2004, a deputy asked defendant to answer questions. After answering some preliminary questions, defendant informed the deputy that he did not want to answer any further questions. Defendant did not waive his Miranda rights after that date.\nOn December 29, 2004, police authorities placed Marr in a cell with defendant. Marr, who was participating in an undercover police operation to obtain information from defendant, was wearing a recording device. Defendant sat in a chair while Marr asked him a series of questions for approximately 45 minutes. During the meeting, Marr sometimes stood over defendant or stood within whispering distance. The State had not yet charged defendant with solicitation of murder for hire, and he did not then know that the State was investigating his involvement in solicitation to commit murder.\nIf called as a witness, Marr would testify that prior to December 29, 2004, he had been incarcerated with defendant at the Cumberland County jail. During that time, defendant offered to pay Marr to kill Cummins. As part of their agreement, defendant posted bail for Marr, and Marr was released from jail. If called to testify, defendant would deny Marr\u2019s allegations.\nThe trial court also admitted as a joint exhibit a transcript of the December 29, 2004, jailhouse conversation between defendant and Marr. The transcript shows that the conversation began with small talk about why Marr was purportedly back in jail (for driving on a revoked license) and how he could bail out. At some point during the conversation, the following colloquy took place.\n\u201c[MARR]: I can\u2019t do it. I thought I could but I can\u2019t do it. You know? I\u2019ve never shot nobody or nothing. I can\u2019t even kill myself, let alone (inaudible).\n[DEFENDANT]: (Inaudible.)\n[MARR]: You (inaudible) for sure. You got to make sure you want it done.\n[DEFENDANT]: I want it done.\n[MARR]: What about the old lady? You want her dead too or just him?\n[DEFENDANT]: Just him.\u201d\nAfter more small talk, the following colloquy occurred.\n\u201c[MARR]: I\u2019m scared as hell. You know? The only way it can happen, you got to get, you know, I can\u2019t say \u2018Hey, do it, man; I\u2019ll owe you.\u2019 you know? (Inaudible.)\n[DEFENDANT]: (Inaudible.)\n[MARR]: Says as soon as I got the money and I got the picture ...\n[DEFENDANT]: You still got that paper I gave you with all that information on it?\n[MARR]: Yeah ...\n[DEFENDANT]: I\u2019m scared, man. I lay there in bed thinking \u2014 I wonder \u2014 don\u2019t take this wrong \u2014 are you going to get your ass off and put me away? (Inaudible.) I don\u2019t know. I don\u2019t know, Dave. I don\u2019t know.\n[MARR]: I know. I know. Yeah, I understand that.\n[DEFENDANT]: (Inaudible) my life...\n[MARR]: (Inaudible.)\n[DEFENDANT]: I want him dead.\n[MARR]: You want him dead.\n[DEFENDANT]: I want him dead.\u201d\nAfter considering the evidence and counsel\u2019s arguments, the trial court granted defendant\u2019s motion to suppress. In so doing, the court (1) agreed with defendant that the case was directly on point with the Fifth District\u2019s decision in People v. Perkins, 248 Ill. App. 3d 762, 618 N.E.2d 1275 (1993) (Perkins II) and (2) found that defendant\u2019s fifth-amendment rights were violated because \u201che was already represented by counsel in other matters that were pending, and from his assertion to [the deputy] that he didn\u2019t want to speak any longer with the officers or answer questions with regards to the issues at hand.\u201d\nThis appeal followed.\nII. ANALYSIS\nA. Standard of Review\nWhen ruling on a motion to suppress evidence, the trial court often must choose between competing versions of fact and weigh the credibility of witnesses. We thus defer to the trial court\u2019s factual findings unless we determine that those findings are manifestly erroneous. People v. Roberson, 367 Ill. App. 3d 193, 195, 854 N.E.2d 317, 320 (2006). A \u201c \u2018manifest error\u2019 \u201d is one that is \u201cclearly evident, plain, and indisputable.\u201d People v. Ruiz, 177 Ill. 2d 368, 384-85, 686 N.E.2d 574, 582 (1997). Although we defer to the trial court on questions of fact, we review de novo whether the law requires suppression of the evidence under those facts. Roberson, 367 Ill. App. 3d at 195, 854 N.E.2d at 320.\nB. Defendant\u2019s Fifth-Amendment Rights\nThe State first argues that the trial court erred by granting defendant\u2019s motion to suppress on the ground that defendant\u2019s fifth-amendment rights were violated. We agree.\nIn Miranda, 384 U.S. at 444-45, 16 L. Ed. 2d at 706-07, 86 S. Ct. at 1612, the United States Supreme Court held that the fifth-amendment privilege against self-incrimination prohibits admitting in evidence statements given by a suspect during custodial interrogation without a prior warning. The Miranda warnings\n\u201cwere meant to preserve the fifth[-] amendment privilege against self-incrimination during incommunicado interrogation of individuals in a police-dominated atmosphere. Courts view that atmosphere as generating inherently compelling pressures that work to undermine the individual\u2019s will to resist and to compel the person to speak where the person would not otherwise do so freely.\u201d People v. Manning, 182 Ill. 2d 193, 206, 695 N.E.2d 423, 429 (1998).\nHowever, in Illinois v. Perkins, 496 U.S. 292, 296, 110 L. Ed. 2d 243, 250-51, 110 S. Ct. 2394, 2397 (1990) (Perkins I), the United States Supreme Court held that Miranda is not implicated during conversations between suspects and undercover agents. The Supreme Court reasoned that the concerns underlying Miranda are not implicated in such circumstances because \u201c[t]he essential ingredients of a \u2018police-dominated atmosphere\u2019 and compulsion are not present when an incarcerated person speaks freely to someone whom he believes to be a fellow inmate.\u201d Perkins I, 496 U.S. at 296, 110 L. Ed. 2d at 251, 110 S. Ct. at 2397. The Court further explained as follows:\n\u201cWhen a suspect considers himself in the company of cellmates and not officers, the coercive atmosphere is lacking. [Citation.] *** There is no empirical basis for the assumption that a suspect speaking to those whom he assumes are not officers will feel compelled to speak by the fear of reprisal for remaining silent or in the hope of more lenient treatment should he confess.\u201d Perkins I, 496 U.S. at 296-97, 110 L. Ed. 2d at 251, 110 S. Ct. at 2397.\nSee also Manning, 182 Ill. 2d at 206, 695 N.E.2d at 429 (\u201cPloys to mislead a suspect or lull the suspect into a false sense of security\u2014 that do not rise to the level of compulsion or coercion to speak \u2014 are not within Miranda\u2019s concerns\u201d).\nIn this case, defendant freely chose to speak with Marr, who was posing as a fellow inmate on the State\u2019s behalf. The record shows no ploys to mislead defendant that rose to the level of compulsion or coercion to speak. Thus, in accordance with Perkins I, we conclude that no Miranda warnings were required prior to Marr\u2019s jailhouse conversation with defendant. See People v. Easley, 148 Ill. 2d 281, 312, 592 N.E.2d 1036, 1049 (1992) (in which our supreme court concluded that in light of the Supreme Court\u2019s decision in Perkins I, an inmate who was working undercover for the Department of Corrections was under no obligation to give the defendant Miranda warnings prior to questioning him).\nIn so concluding, we note that defendant\u2019s prior invocation of his right to remain silent did not require that defendant validly waive that right before Marr questioned him. In that regard, we agree with Professor LaFave, who wrote the following:\n\u201cWhile a concurring opinion [by Justice Brennan] in Perkins [I] asserted that if \u2018respondent had invoked either [his right to remain silent or his right to counsel], the inquiry would focus on whether he subsequently waived the particular right,\u2019 that contention is inconsistent with the analysis of the Perkins [I] majority ***.\u201d W LaFave, J. Israel & N. Bung, Criminal Procedure \u00a76.7(c), at 178-79 (2007).\nCritical to that analysis was the Supreme Court\u2019s reasoning that, absent a custodial interrogation, no violation of a defendant\u2019s fifth-amendment Miranda rights can occur and thus \u201c \u2018there would be no occasion to determine whether there had been a valid waiver\u2019 of those rights.\u201d State v. Hall, 204 Ariz. 442, 452, 65 P.3d 90, 100 (2003), quoting Edwards v. Arizona, 451 U.S. 477, 486, 68 L. Ed. 2d 378, 387, 101 S. Ct. 1880, 1885 (1981). In this case, defendant\u2019s jailhouse conversation with Marr, whom defendant believed to be a fellow inmate, clearly did not constitute a custodial interrogation. See Perkins I, 496 U.S. at 296-97, 110 L. Ed. 2d at 251, 110 S. Ct. at 2397 (\u201cWhen a suspect considers himself in the company of cellmates and not officers, the coercive atmosphere is lacking\u201d). Thus, whether defendant validly waived his right to remain silent is of no moment because defendant\u2019s Miranda rights simply were not implicated. To the extent Perkins II (which involved the Fifth District\u2019s decision following remand in Perkins I) suggests otherwise, we disagree with it.\nWe further note that although the trial court here recognized the Supreme Court\u2019s decision in Perkins I, it accepted defendant\u2019s argument (which defendant now appears to have abandoned on appeal) that the Supreme Court\u2019s holding was inapplicable because defendant had previously invoked his fifth-amendment rights. Both the court and defendant relied on the Fifth District\u2019s decision in Perkins II, in which the defendant argued for the first time that he had previously asserted his fifth-amendment right to counsel. The Fifth District framed the question on appeal as follows: \u201cWhere a suspect has asserted his fifth[-]amendment right to counsel, can he be questioned by undercover agents on a separate, unrelated, and uncharged offense while in jail, without the presence of an attorney, and without an opportunity to waive his right to counsel?\u201d Perkins II, 248 Ill. App. 3d at 767-68, 618 N.E.2d at 1279. The Fifth District answered the question, \u201cNo,\u201d and further concluded that (1) the defendant had not validly waived his right to counsel prior to the questioning by the undercover agent and (2) the authorities\u2019 actions constituted custodial interrogation. Perkins II, 248 Ill. App. 3d at 770, 618 N.E.2d at 1281.\nPerkins II is inapposite. Contrary to the trial court\u2019s finding, nothing in the record shows that defendant invoked his fifth-amendment right to counsel. The parties\u2019 stipulation of facts indicates that on November 17, 2004, after answering some preliminary questions, defendant informed the deputy that he did not want to answer any further questions. Thus, defendant invoked his right to remain silent, not his right to counsel. Both the court and defendant seem to have equated the fact that defendant was being represented by counsel on other charges (a fact that was not set forth in the parties\u2019 stipulation) with defendant\u2019s invoking his fifth-amendment right to counsel. However, even accepting that defendant was being represented on other charges, it is well settled that a defendant\u2019s invocation of his offense-specific sixth-amendment right to counsel does not invoke his fifth-amendment right to counsel. McNeil v. Wisconsin, 501 U.S. 171, 178-79, 115 L. Ed. 2d 158, 168-69, 111 S. Ct. 2204, 2209 (1991).\nAccordingly, we conclude that the trial court erred by granting defendant\u2019s motion to suppress his statements to Marr on the ground that defendant\u2019s fifth-amendment rights were violated.\nC. Defendant\u2019s Sixth-Amendment Rights\nAs noted above, defendant seems to have abandoned on appeal his fifth-amendment argument. Instead, he argues for the first time on appeal that the trial court\u2019s granting of his motion to suppress should be affirmed because his statements to Marr were elicited in violation of his sixth-amendment right to counsel. Specifically, he contends that (1) at some point after he invoked his right to remain silent in mid-November 2004, he was represented by counsel on other charges, including attempt (first degree murder) of Cummins; (2) he was \u201cawaiting trial in Cumberland County case No. 04 \u2014 CF\u2014114,\u201d in which he was charged with attempt (first degree murder) of Cummins; (3) his sixth-amendment right to counsel was thus invoked at the time of his jailhouse conversation with Marr; (4) evidence relating to defendant\u2019s alleged solicitation of murder for hire was relevant to defendant\u2019s intent or motive relating to the attempt (first degree murder) charge; and (5) the attempt (first degree murder) charge was so closely related to the then uncharged offense of solicitation of murder for hire that his sixth-amendment right to counsel attached to the uncharged offense. In response, the State argues that defendant has forfeited this argument on appeal by failing to raise it in the trial court. We agree with the State.\n\u201cIt is quite established that \u2018the appellee may urge any point in support of the judgment on appeal, even though not directly ruled on by the trial court, so long as the factual basis for such point was before the trial court.\u2019 \u201d (Emphasis added.) Beahringer v. Page, 204 Ill. 2d 363, 370, 789 N.E.2d 1216, 1222 (2003), quoting Shaw v. Lorenz, 42 Ill. 2d 246, 248, 246 N.E.2d 285, 287 (1969).\nIn this case, the factual basis for defendant\u2019s sixth-amendment argument was not before the trial court. Defendant did not include this argument in his motion to suppress, his memorandum in support thereof, or his argument at the hearing on his motion. In addition, defendant did not present any evidence (1) relating to the attempt (first degree murder) charge in Cumberland County case No. 04\u2014 CF \u2014 114 or (2) as to how that charge may have been closely related to the subsequent charge of solicitation of murder for hire. Nor did the trial court have before it the charging instrument setting forth the attempt (first degree murder) charge. Because the issue of whether defendant\u2019s statements to Marr were elicited in violation of his sixth-amendment right to counsel involved a fact-intensive determination and the factual basis for defendant\u2019s sixth-amendment argument was not before the trial court, we conclude that defendant has forfeited this argument on appeal.\nIII. CONCLUSION\nFor the reasons stated, we reverse the trial court\u2019s judgment and remand for further proceedings.\nReversed and remanded.\nMcCULLOUGH and TURNER, JJ., concur.", "type": "majority", "author": "PRESIDING JUSTICE STEIGMANN" } ], "attorneys": [ "Barry Schaefer, State\u2019s Attorney, of Toledo (Norbert J. Goetten, Robert J. Biderman, and Kathy Shepard, all of State\u2019s Attorneys Appellate Prosecutor\u2019s Office, of counsel), for the People.", "Robert Alan Dunst, of Law Offices of Bob Dunst, of Mattoon, for appellee." ], "corrections": "", "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. MARK J. LASHMET, Defendant-Appellee.\nFourth District\nNo. 4\u201406\u20140026\nOpinion filed April 19, 2007.\nBarry Schaefer, State\u2019s Attorney, of Toledo (Norbert J. Goetten, Robert J. Biderman, and Kathy Shepard, all of State\u2019s Attorneys Appellate Prosecutor\u2019s Office, of counsel), for the People.\nRobert Alan Dunst, of Law Offices of Bob Dunst, of Mattoon, for appellee." }, "file_name": "1037-01", "first_page_order": 1053, "last_page_order": 1060 }