No. 2--94--0635
_________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
SECOND DISTRICT
__________________________________________________________________
THE PEOPLE OF THE STATE ) Appeal from the Circuit Court
OF ILLINOIS, ) of Kane County,
)
Plaintiff-Appellee, ) No. 93--CF--1410
)
v. )
)
CHAD WAHL, ) Honorable
) James T. Doyle,
Defendant-Appellant. ) Judge, Presiding.
_________________________________________________________________
JUSTICE HUTCHINSON delivered the opinion of the court:
Defendant, Chad Wahl, appeals the denial of his motion for a
new trial and his motion to reduce or reconsider his sentence.
Following a jury trial, defendant was convicted of six counts of
aggravated criminal sexual abuse (720 ILCS 5/12--16(C)(1)(i) (West
1992) (now 720 ILCS Ann. 5/12--16(C)(1)(i) (Smith-Hurd Supp.
1996))), one count of aggravated criminal sexual assault (720 ILCS
5/12--14(b)(1) (West 1992) (now codified, as amended, at 720 ILCS
Ann. 5/12--14(b) (Smith-Hurd Supp. 1996))), and one count of
attempted aggravated criminal sexual assault (720 ILCS 5/8--4(a),
12--14(b)(1) (West 1992) (now codified, as amended, at 720 ILCS
Ann. 5/8--4(a), 12--14(b) (Smith-Hurd Supp. 1996))). Defendant was
found not guilty of three counts each of aggravated criminal sexual
assault and aggravated criminal sexual abuse. The trial court
sentenced defendant to 4 years' imprisonment for each count of
aggravated criminal sexual abuse, 10 years' imprisonment for the
count of aggravated criminal sexual assault, and 7 years'
imprisonment for the count of attempted aggravated criminal sexual
assault. All sentences were to run consecutively. In total,
defendant was sentenced to a 41-year term of imprisonment. This
appeal timely followed the denial of defendant's post-trial
motions.
On appeal, defendant contends (1) the trial court erred by
denying his motion to suppress statements made to Illinois State
Police Detective Sergeant Thomas O'Donnell on March 11, 1992; (2)
that concerning the psychological makeup of the complainants: (a)
the State improperly presented evidence on post-traumatic stress
disorder in such complainants, and (b) defendant's due process
rights were violated because he was denied discovery concerning the
psychological histories of the complainants; (3) the trial court
erred by limiting bias impeachment of O'Donnell; (4) defendant
should have received discovery concerning a civil suit filed by
several of the complainants; (5) the trial court abused its
discretion in imposing sentence; and (6) the trial court improperly
imposed a sexual assault fine on defendant (see 730 ILCS 5/9--
1.7(b)(1) (West 1994) (now 730 ILCS Ann. 5/9--1.7(b)(1) (Smith-Hurd
Supp. 1996))). We affirm in part and we vacate in part.
The present case arises from incidents at a home for dependent
children (the Home) beginning in summer 1991 and continuing to the
date of defendant's arrest. Children living in the Home are
assigned to group residence halls on the basis of each child's age
and sex. Each residence hall is supervised by two live-in
houseparents. The houseparents have at least one day off per week;
on these days, the Home provides relief houseparents. Typically,
there is one female and one male houseparent. The houseparents
supervise their assigned residence halls and provide the children
with structure, guidance, discipline, and parental care.
Additionally, the houseparents accompany the children to and from
school and assist them with their homework. The houseparents
function as surrogate parents and, therefore, are the children's
primary care givers.
On October 20, 1990, the Home hired defendant as a
houseparent. For the first three months of his employment,
defendant served as a houseparent in a hall for toddlers. From
January to the middle of July 1991, defendant was a relief
houseparent for a number of halls housing elementary school
children. From July to October 1991, he was a relief houseparent
in high school halls. Defendant served in this capacity until
being assigned to New Jersey Hall in October 1991 as a permanent
houseparent. Jane Bowen was the other permanent houseparent. New
Jersey Hall is a residence hall for boys in their early teen years.
As a reward for performing their chores, the boys were
permitted by Bowen and defendant to "campout" in the living room of
New Jersey Hall on Friday and Saturday nights. Campouts consisted
of playing video games and watching videotapes of movies rented by
Bowen and defendant. The boys were then permitted to sleep on the
living room floor in front of the television set. According to
Bowen, the rules required one of the houseparents to sleep in the
living room with the boys on campout nights.
O'Donnell began his investigation of defendant on March 5,
1992. Accompanying O'Donnell were Assistant State's Attorney Lynn
Mirabella and Mary Heywood of the Department of Children and Family
Services.
O'Donnell and defendant met at approximately 6 p.m. on March
5, 1992, in the office of the Home's superintendent. According to
O'Donnell, people "were coming in and out" of the office throughout
his conversation with defendant. O'Donnell informed defendant that
"some students had said that he had touched them improperly." In
response to defendant's query concerning who had made the
allegations, O'Donnell replied he had to speak to the students
before discussing the allegations with defendant. Defendant
responded that he would wait and speak to O'Donnell after the
officer completed his discussions with the students.
O'Donnell, along with Mirabella and Heywood, spoke with R.F.
and E.S. between 6 p.m and 8 p.m. R.F. and E.S. were interviewed
separately. O'Donnell did not participate in the interview of
E.S.; Mirabella and Heywood interviewed E.S.
At approximately 8 p.m. O'Donnell summoned defendant. The
officer took defendant to a counselor's office. There O'Donnell
began the interview by reading defendant the Miranda warnings (see
Miranda v. Arizona, 384 U.S. 436, 467-74, 16 L. Ed. 2d 694, 720-23,
86 S. Ct. 1602, 1624-28 (1966)) from a card. O'Donnell asked
defendant if he understood his rights; defendant replied "yes."
The officer then asked defendant if he wished to talk; again,
defendant replied "yes." O'Donnell told defendant that R.F. and
E.S. said defendant had touched each of their penises; further,
defendant had sucked on R.F.'s penis, according to the boy, after
he had taken a shower.
While initially denying having any type of sexual contact with
anyone at the Home, after approximately 30 minutes defendant
admitted to having sexual contact with both R.F. and E.S. During
a movie campout--in either June or July 1991, while defendant was
a relief houseparent at Dixie Hall--he and R.F. were sleeping under
the same blanket. Defendant accidentally touched R.F.'s penis.
R.F.'s penis was erect and protruding through his pajamas at the
time. Defendant moved his hand up and down R.F.'s penis for two or
three minutes until someone bumped into defendant. Subsequently,
defendant intentionally touched and stroked R.F.'s penis while the
two slept under a blanket, apparently during a movie campout;
defendant stated R.F. rubbed the defendant's pants at the same
time. Defendant told O'Donnell he stopped after realizing what he
was doing was wrong. Defendant denied sucking R.F.'s penis.
O'Donnell asked defendant if he had touched any other children
in a sexual manner. According to defendant, he had touched K.W. on
more than one occasion. Apparently, these incidents occurred
before R.F. moved into Dixie Hall. Defendant said he and K.W. had
been lying underneath a blanket watching television and "were
cuddling very close." Defendant reached down and touched K.W.'s
penis. According to defendant, K.W.'s penis was erect and
protruding through his pajamas. Defendant stroked K.W's penis for
two or three minutes. Defendant stated he engaged in this sort of
conduct with K.W. on another occasion. O'Donnell promised that he
would inform the State's Attorney of defendant's cooperation. At
the conclusion of the interview, O'Donnell arrested defendant.
On March 11, 1992, O'Donnell visited the Kane County jail to
interview defendant about further information the officer had
obtained from other boys. O'Donnell and defendant seated
themselves in a "small" interview room. Their conversation began
with small talk. According to the officer, he then read defendant
the Miranda warnings. O'Donnell stated he asked defendant if he
had an attorney. The officer testified defendant said "somebody
had come by the jail, he didn't know who the person was, told him
that that person represented an attorney that was going to
represent [defendant]." O'Donnell rose and started to leave the
interview room. On cross-examination, O'Donnell admitted he got up
to leave because he believed defendant had an attorney and would
not discuss the case. Before O'Donnell left the interview room,
but after he had stood up to depart, he told defendant that he
would not be able to tell the State's Attorney defendant had been
cooperative. This was because since March 5, 1992, O'Donnell had
learned defendant "had not been completely truthful." Defendant
replied he had been nervous and may have forgotten some things.
O'Donnell said he had spoken to several other children in the
interim of March 5, 1992, and March 11, 1992. In reply, defendant
asked with whom the officer had spoken. O'Donnell testified that
he told defendant he "had talked to [T.W.], [C.M.] and other
children." According to O'Donnell, defendant replied, "[T.W.] was
not one of them." Defendant also expressed a desire to get out of
jail and a need for counseling. He also opined that "at least I
didn't hurt any of them." O'Donnell replied he thought defendant
had hurt them psychologically. Defendant then "hung his head" and
looked downward.
Defendant's recollection of the March 11, 1992, meeting
differed somewhat from O'Donnell's. Defendant testified O'Donnell
did not read defendant the Miranda warnings. The officer walked
into the interview room and declared defendant had not been
truthful. Defendant asserted, "Well, I want to talk to my
attorney." While getting up to leave, O'Donnell asked defendant if
he could afford an attorney. Defendant replied he did not know.
O'Donnell then asked if defendant had an attorney yet. Defendant
said he thought he had been assigned an attorney and that somebody
had visited him in jail.
Before trial, defendant filed a motion to suppress all
statements he made after being taken into custody on March 5, 1992.
The trial court ruled that all of the March 5, 1992, statements
were admissible. Defendant does not contest this ruling. As for
the March 11, 1992, statements, the court suppressed any statements
relating to the charges upon which defendant had already been
incarcerated. The trial court stated:
"My findings of fact are *** that *** defendant was
represented by the attorneys from the Public Defender's
Office. That number two, [defendant] advised [O'Donnell]
prior to making any statements that in fact [defendant] is
represented by an attorney. Number three, I believe that
[O'Donnell] made the statements before leaving in an attempt
to elicit additional incriminating comments from ***
defendant."
After making these findings, the court permitted the parties to
submit memoranda of law on the propriety of O'Donnell's questioning
in light of the court's findings. After reading the memoranda, the
court allowed any statements regarding charges initiated after
March 11, 1992. Based on the report of proceedings for March 4,
1993, the trial court seemingly based its ruling exclusively on
sixth amendment grounds (see, e.g., Maine v. Moulton, 474 U.S. 159,
180, 88 L. Ed. 2d 481, 498, 106 S. Ct. 477, 489 (1985) (sixth
amendment right to counsel attaches to only those charges pending
at the time evidence is elicited from a defendant)),
notwithstanding the fifth amendment arguments set forth in the
parties' memoranda.
J.C.(I) (two of the complainants in the present case have the
initials "J.C."; for the sake of clarity they will be referred to
as J.C.(I) and J.C.(II)) was born on August 2, 1982. J.C.(I)
testified defendant had been his relief parent at New Jersey Hall
in summer 1991. J.C.(I) stated that one night he entered
defendant's room in New Jersey Hall and defendant put his hand on
J.C.(I)'s penis and stroked up and down. This continued for "five
to ten minutes." According to J.C.(I), this type of conduct
occurred "[f]ive to four or so" times.
Defendant continued his sexual contact with J.C.(I) after
defendant became a permanent houseparent in New Jersey Hall.
J.C.(I) testified defendant "put his finger up my butt" four or
five times. On at least one occasion, defendant wiped a liquid on
J.C.(I)'s anus before inserting his finger. These incidents
occurred in defendant's room in New Jersey Hall. Defendant also
stroked J.C.(I)'s penis during a movie campout. At approximately
11 p.m., J.C.(I) entered defendant's room. At defendant's behest,
J.C.(I) pulled down his pants and lay on his stomach. Defendant
again used a liquid of some type on J.C.(I)'s anus. J.C.(I) felt
defendant's weight on his back. J.C. thought defendant was
attempting to insert his penis in J.C.(I)'s anus. J.C.(I) felt a
pain and pulled away. He observed that defendant had taken off his
shorts and he had an erection. J.C.(I) dressed and left
defendant's room. On a different night, defendant told J.C.(I) to
pull down his pants and J.C.(I) refused. Defendant repeated the
order and J.C.(I) complied. Defendant then sucked on J.C.(I)'s
penis until he ejaculated. J.C.(I) testified this occurred on one
other occasion.
J.C.(I) stated he did not report these events prior to March
5, 1992, because he was afraid. Once, J.C.(I) testified, defendant
had said that if J.C.(I) informed on defendant he would hurt
J.C.(I). His fear only subsided after defendant was removed from
the Home.
S.W. was born on September 1, 1979. He had lived in New
Jersey Hall during 1991 and 1992. S.W. testified defendant had
first touched S.W. sexually while defendant was serving as a relief
houseparent in New Jersey Hall. This first incident occurred
during a campout. According to S.W., he and the other children had
gathered around the television set to watch the film, "Who Framed
Roger Rabbit." S.W., having just taken a shower, was lying on the
floor wearing underwear, shorts, and socks. At about 8 p.m. or
8:30 p.m., defendant lay down beside S.W., placed his blanket over
S.W.'s blanket, and started touching S.W.'s penis through his
shorts. S.W. jumped up, ran away, and hid from defendant.
Defendant located S.W.'s hiding place, picked him up, carried him
back to the living room, and laid him down. Defendant again placed
the blankets over himself and S.W. S.W. fell asleep at
approximately 12 a.m. When he awoke, S.W. discovered defendant was
stroking S.W.'s penis.
According to S.W., defendant continued to have sexual contact
with S.W. after defendant became a permanent houseparent at New
Jersey Hall. S.W. described a Boy Scout camping trip on which
defendant, another houseparent, and the Home's dean, Joseph Dinges,
took the children. S.W. thought Dinges was in his tent doing
paperwork. S.W. and several other children were sleeping around a
campfire. Defendant unzipped S.W.'s "camping bag," reached under
his shorts, and began to stroke his penis. S.W. fell asleep.
Returning from the camping trip by bus, S.W. took a seat in the
back of the bus. Defendant and another child joined S.W. The
three took turns playing a hand-held video game. On cross-
examination S.W. stated defendant touched S.W.'s penis while they
sat on the bus. S.W. testified the other child had left the back
of the bus to talk with "some kids up front."
S.W. also testified defendant touched him sexually while S.W.
was in his dorm room. This incident occurred on a Saturday night
after defendant was a permanent houseparent. Defendant sat on
S.W.'s bed. According to S.W., defendant "said he was cold so he
got under my bedspread." S.W. got out of bed, went to the rest
room, and left defendant talking to the other children in the dorm
room. When S.W. returned from the rest room, defendant sat up on
S.W.'s bed. S.W. climbed back into bed; defendant climbed back
into S.W.'s bed. Defendant began touching S.W.'s penis through his
clothes. Again, S.W. got out of bed and left the dorm room.
S.W. related an incident occurring during a movie campout in
fall 1991. After getting a drink, S.W. lay down behind the rest of
the children near the couch. Defendant was lying behind S.W.; S.W.
fell asleep. When S.W. awoke, defendant had reached inside S.W.'s
clothes and was touching his penis. S.W. testified that he tried
to move away. Defendant prevented this by holding S.W. down.
S.W.'s shorts and underwear were pulled down by defendant, who
moistened his finger, and inserted his finger in S.W.'s anus. S.W.
testified this hurt. He pushed defendant away. According to S.W.,
defendant said "he was trying to loose me up [sic] and everything."
S.W. got up and moved to the couch to sleep. S.W. stated this type
of conduct occurred twice.
S.W. testified to another specific incident occurring
approximately a week or two before New Year's Eve during a
"movieless" campout. S.W. and the other children had been playing
video games on the television in the living room. S.W. feel asleep
under his blanket. Upon awakening, S.W. discovered his shorts were
around his ankles and defendant was sucking on S.W.'s penis.
Defendant also engaged in this type of conduct with S.W. on the
Saturday night before defendant was arrested.
S.W. testified he did not tell Bowen about defendant's conduct
until after he had been arrested because he was afraid. Defendant
threatened S.W. According to S.W., the initial threat occurred the
first time defendant touched S.W. in a sexual manner. S.W.
testified, "[defendant] told me that if I told on him, that no one
would believe me. That everyone would think I was lying. And he
said that he knew where my family lives because he has my records
and that if I told anybody that he'd checked [sic] on my family."
On cross-examination, S.W. stated he was touched more than 40 times
in a manner he did not like.
J.C.(II) was born on December 28, 1982. J.C.(II) moved into
the Home in summer 1991. After three days in Arizona Hall,
J.C.(II) was moved to Dixie Hall. Over J.C.(II)'s eight months at
Dixie Hall, defendant served as a relief houseparent "about eight
times." J.C.(II) testified he was touched by defendant during
defendant's fourth stint as a relief houseparent. The children
were in the living room watching "[a]n airplane movie." J.C.(II)
fell asleep on the living room couch. When he awoke, defendant was
lying behind the boy on the couch. Defendant had his hands in
J.C.(II)'s shorts and was touching his penis. This continued for
two minutes. According to J.C.(II), defendant asked if his actions
bothered J.C.(II). He responded it did bother him, left the couch,
and went upstairs to his room.
C.M. was born on July 5, 1979. C.M. moved into Dixie Hall in
fall 1991 and was living there in November 1991. Defendant was one
of several relief houseparents during C.M.'s stay in Dixie Hall.
C.M. testified that in either June or July 1991, defendant stroked
his penis. C.M. and the rest of the children had gathered in the
living room to watch the film, "Rambo 3." Defendant was lying on
the couch. When the film began, C.M. moved from a chair to the
couch to be next to defendant. C.M. testified he moved "[b]ecause
I liked [defendant] and I was close to him." Defendant and C.M.
were underneath a blanket when defendant reached down C.M.'s shorts
and underwear and began stroking his penis. This continued for
three to five minutes until C.M. ejaculated. He then went upstairs
to change clothes. According to C.M., defendant said he had never
done that sort of thing before and that he was not gay. C.M.
testified to having observed defendant and another child, G.J.,
"wrestle around with a cover over them." C.M. also stated he heard
the sound of "underwear snapping" coming from the vicinity of
defendant and G.J.
R.F. was born on January 30, 1982. R.F. lived in Dixie Hall
in summer 1991. According to R.F., defendant often served as a
relief houseparent. In June 1991, the regular Dixie Hall
houseparents took a 12-day vacation. During this period, defendant
served as the sole houseparent. At approximately 3 p.m. of the
second day of defendant's stint as relief houseparent, he and
several of the children were gathered in the living room watching
television. R.F. testified he was lying on the floor. Defendant
entered the living room and covered himself and R.F. with a
blanket. R.F. testified that defendant began to rub R.F.'s
"foreskin up and down." This type of conduct was repeated on a
separate occasion at sometime during the 12-day period.
Additionally, R.F. stated defendant had put his mouth on
R.F.'s penis after he had showered. This occurred in the basement.
R.F. had finished showering. Defendant then dried R.F. off using
a towel. According to R.F., defendant laid R.F. on a table.
Defendant then placed his mouth on R.F.'s penis.
K.W. was born on January 13, 1980. K.W. lived in Dixie Hall
in summer 1991. During this summer, defendant served as a relief
houseparent during the vacation of the regular Dixie Hall
houseparents. According to K.W., he, several of the other
children, and defendant were watching a film in the living room.
It was evening. K.W. was lying down on his side in front of the
couch. Defendant was lying in front of K.W. K.W. was wearing his
pajamas. K.W. testified defendant "felt my penis." When asked how
defendant did this, K.W. responded, "Moving his hand up and down."
Defendant then whispered to K.W., "Don't tell anybody." K.W.
stated defendant repeated this sort of conduct "two or three" times
following the initial incident.
Although nine complainants testified for the State, we have
only summarized the testimony of those the jury determined had been
abused or assaulted by defendant. Additional facts will be set
forth within the body of the opinion as needed.
Defendant first argues that the trial court erred by denying
his motion to suppress the statements he made to O'Donnell on March
11, 1992. Defendant bases this argument on both his sixth
amendment right to counsel and his fifth amendment privilege
against self-incrimination. We examine each basis in turn.
Defendant asserts that his March 11, 1992, statements were
elicited in violation of his sixth amendment right to counsel. A
defendant represented by counsel may not be questioned concerning
charges upon which adversarial judicial criminal proceedings have
commenced. See, e.g., People v. Crane, 145 Ill. 2d 520, 531
(1991), citing McNeil v. Wisconsin, 501 U.S. 171, 175-76, 115 L.
Ed. 2d 158, 166-67, 111 S. Ct. 2204, 2207 (1991). Further, a
defendant does not waive the sixth amendment right to counsel when
a police officer reads the Miranda warnings to the defendant who
then acquiesces to the officer's questioning. See Michigan v.
Jackson, 475 U.S. 625, 631-35, 89 L. Ed. 2d 631, 639-40, 106 S. Ct.
1404, 1408-11 (1986). However, the sixth amendment right to
counsel--unlike the fifth amendment privilege against self-
incrimination protected by the prophylactic rule of Miranda and its
progeny--is offense specific. Therefore, simply because a
defendant is represented by counsel on a charged offense does not
prevent the authorities from questioning the defendant about other
unrelated offenses. See, e.g., People v. Maxwell, 148 Ill. 2d 116,
128-29 (1992).
Under a traditional sixth amendment analysis, O'Donnell's
conduct during the March 11, 1992, interview did not violate
defendant's right to counsel. On March 11, 1992, defendant had
already been charged with aggravated criminal sexual abuse against
both R.F. and K.W. Therefore, defendant's comments that "[T.W.]
was not one of them" and "at least I didn't hurt any of them" were
admissible as to all charges other than those already pending
concerning R.F. and K.W. The trial court ruled accordingly.
However, defendant argues that the offenses against J.C.(I),
C.M., S.W., R.F., J.C.(II), and K.W. were so closely related that
defendant's sixth amendment right to counsel attached to the
uncharged offenses. The Illinois Supreme Court has interpreted the
United States Supreme Court's decision in Moulton as implicitly
standing for the proposition that the "sixth amendment rights of
one formally charged with an offense extend to offenses closely
related to that offense and for which a defendant is subsequently
formally accused." (Emphasis added.) People v. Clankie, 124 Ill.
2d 456, 463 (1988); see also United States v. Cooper, 949 F.2d 737,
743 (5th Cir. 1991) (stating the standard as being whether the
charged and uncharged offenses are "inextricably intertwined").
Neither the degree nor the nature of the closeness of the charged
and uncharged offenses have been set forth by either the Illinois
or the United States Supreme Court. Clankie, 124 Ill. 2d at 463-64
(failing to state an evaluative standard because "even if[--]for
exclusion of the evidence regarding the subsequently charged
offense[--]the two offenses must be extremely closely related, the
required relationship exists in this case" (emphasis in original)).
It is vital to understand precisely the interest protected by
the closely related offenses exception to the offense-specific
sixth amendment right to counsel. The exception has been adopted
in one form or another by a number of both state and federal
courts. See United States v. Kidd, 12 F.3d 30, 33 (4th Cir. 1993);
Hendricks v. Vasquez, 974 F.2d 1099, 1104-05 (9th Cir. 1992);
United States v. Carpenter, 963 F.2d 736, 740-41 (5th Cir. 1992);
United States v. Hines, 963 F.2d 255, 257-58 (9th Cir. 1992);
Cooper, 949 F.2d at 743-44; United States v. Micheltree, 940 F.2d
1329, 1342-43 (10th Cir. 1991); United States v. Richardson, 837 F.
Supp. 570, 574-75 (S.D.N.Y 1993); United States v. Louis, 679 F.
Supp. 705, 709-10 (W.D. Mich. 1988); State v. Tucker, 137 N.J. 259,
278, 645 A.2d 111, 121 (1994); In re Pack, 420 Pa. Super. 347, 355-
56, 616 A.2d 1006, 1010-11 (1992); see also Whittlesey v. State,
340 Md. 30, 50-57, 665 A.2d 223, 232-36 (1995)(providing an
excellent overview of this issue, while declining to decide whether
the sixth amendment right to counsel may ever attach to an
uncharged offense); 1 W. LaFave & J. Israel, Criminal Procedure
§6.4(e), at 96, 97, n.90.2 (Supp. 1991)(discussing Clankie in terms
of Moulton). However, few of these cases discuss the goal of the
closely related offenses exception. We do not view the goal as
being shielding a defendant from all questioning concerning a type,
class, or category of offense for which a charge is pending. See
Kidd, 12 F.3d at 33 (notwithstanding defendant's arrest on July 2,
1992, for selling cocaine base to government informants, exception
did not apply to defendant's sale of cocaine base to a different
undercover informant on August 26, 1992, while defendant was out on
bond awaiting trial on the July 2, 1992, charge); Hines, 963 F.2d
at 257 (stating that when the time, place, and persons involved are
all different, a charged firearm possession offense is not closely
related to a subsequently charged firearm possession offense).
Rather, the true purpose of Clankie's exception is to prevent the
State from interrogating a defendant about a distinct course of
criminal conduct--one capable of supporting a new charge--outside
of the presence of the defendant's attorney, when the fruits of a
successful interrogation will be admissible as substantive proof of
the charges upon which adversarial judicial criminal proceedings
have commenced. Put another way, Clankie prohibits interrogation
of a defendant on an uncharged criminal offense if the
interrogation functions as a continuation of the investigation of
the factual transaction forming the basis of the previously charged
offense.
There is no bright line test for whether the closely related
offenses exception applies. Our survey of the cases discussing the
exception indicate that three predominant factors should be
examined. First, a court should determine whether the charged and
uncharged offenses were committed against the same individual or
entity. Second, a court should consider the amount of time between
the acts forming the basis for the charged and uncharged offenses.
The briefer the time period between the acts giving rise to the
charged and uncharged offenses, the greater the likelihood the
facts were part of the same factual transaction. This, in turn,
militates in favor of finding that the sixth amendment right to
counsel has attached to the uncharged offense. Third, a court
should be watchful for any evidence that the investigative
authorities of a second sovereign interrogated the defendant--in an
attempt to elicit evidence concerning the facts forming the basis
of an offense charged by the first sovereign--so the second
sovereign might bring a similar charge based on the same factual
transaction. A discussion of these factors should form the basis
of a court's analysis of the closely related offenses exception.
The most important of the factors is the identity of the
victims or targets of the offenses. If the uncharged offense was
committed against the same individual or entity, a strong
possibility exists that the closely related offenses exception may
apply. See Brewer v. Williams, 430 U.S. 387, 389-98, 51 L. Ed. 2d
424, 431-36, 97 S. Ct. 1232, 1235-38 (1977)(holding that use of
defendant's admission that he killed his abductee was violative of
sixth amendment right to counsel where admission was made after
defendant was indicted for abducting the victim and before
defendant's attorney met with defendant); Clankie, 124 Ill. 2d at
457, 466 (applying exception where defendant was convicted of three
instances of burglarizing the same person's home).
In re Pack provides a particularly good illustration of the
importance of the identity of the victims or targets of the
offenses. In In re Pack the defendant was arrested on March 22,
1991, for theft, receiving stolen property, and criminal
conspiracy. The defendant allegedly stole clothing that morning
from a store located at 135 South 52nd Street. After being read
the Miranda warnings, the defendant asserted his right to remain
silent. Counsel was appointed. On April, 1, 1991, the State
obtained a warrant for the defendant's arrest, adding the charge of
burglary to those pending on the March 22, 1991, incident. Once
again the defendant was read the Miranda warnings. However, this
time he made a statement incriminating himself in the March 22,
1991, break-in; additionally, the statement contained an admission
by the defendant that he had participated in an earlier break-in at
a separate location on South 52nd Street.
The court held that the April 1, 1991, interrogation had
violated defendant's sixth amendment right to counsel. In re Pack,
420 Pa. Super. at 355, 616 A.2d at 1010. The court stated "the
Sixth Amendment right to counsel, which is offense specific,
[applies] to all the offenses arising from the same incident for
which a defendant is charged." In re Pack, 420 Pa. Super. at 356,
616 A.2d at 1010-11. "To hold otherwise, would allow the [State]
to circumvent the Sixth Amendment right to counsel merely by
charging a defendant with additional related crimes." In re Pack,
420 Pa. Super. at 356, 616 A.2d at 1011. We believe it is this
circumvention that the closely related offenses exception is
designed to prevent. Simply because a defendant repeatedly commits
the same type of offense in the same fashion does not alter the
offense-specific nature of the sixth amendment right. The
exception does not exist to shelter a defendant from otherwise
proper police questioning concerning a defendant's favored criminal
activity or modus operandi. In this context, we note the In re
Pack court did not require the suppression of the defendant's
comments concerning the earlier break-in on South 52nd Street. In
re Pack, 420 Pa. Super. at 356, 616 A.2d at 1011.
We hold that the charges filed after O'Donnell's March 11,
1991, meeting with defendant were not closely related to the pre-
March 11, 1991, charges. Each of the post-March 11, 1991, charges
concerned different victims from the pre-March 11, 1991, charges.
Additionally, defendant's offenses were committed over a time span
ranging from early June 1991 to March 1992. The testimony
establishes beyond a reasonable doubt that the instances of
defendant's abuse and assault were neither continuous nor
simultaneous. They were interspersed among the ordinary activities
of life at the Home: school, sports, chores, films, and camping
trips. Finally, we note that the present case does not implicate
the problem of separate sovereigns attempting to bring similar
charges against a defendant based on the same operative facts.
Nonpublishable material omitted under Supreme Court Rule 23.
For the foregoing reasons, the judgment of the circuit court
of Kane County is affirmed in part and vacated in part.
Affirmed in part and vacated in part.
McLAREN, P.J., and RATHJE, J., concur.