FIRST DIVISION
September 8, 2008
No. 1-06-0476
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
) Circuit Court of
Plaintiff-Appellant, ) Cook County.
)
v. ) No. 02 CR 23954
)
EVELYN SANTIAGO, ) The Honorable
) Dennis J. Porter,
Defendant-Appellee. ) Judge Presiding.
JUSTICE GARCIA delivered the opinion of the court.
The circuit court suppressed the defendant's written
statement based on a finding that Illinois Supreme Court Rule of
Professional Conduct 4.2 (134 Ill. 2d R. 4.2), generally referred
to as the "no-contact rule," was violated by assistant State's
Attorneys. Following the defendant's arrest on child
endangerment but before formal charges were filed, an assistant
State's Attorney interrogated the defendant after the State's
Attorney's office (SAO) filed a petition in juvenile court based
on the same facts that triggered the criminal investigation. In
the juvenile court case, the SAO filed a petition seeking to
declare the defendant's children wards of the court; the
No. 1-06-0476
defendant was named a respondent and was appointed counsel. Her
appointed counsel was not contacted by the assistant State's
Attorney prior to the interrogation of the defendant in the
criminal matter. The circuit court determined it was bound by
the holding in People v. White, 209 Ill. App. 3d 844, 875, 567
N.E.2d 1368 (1991), where the Fifth District found an earlier
version of the Illinois no-contact rule "provides protection to a
criminal suspect even prior to the filing of formal charges."
Rule 4.2 prohibits a lawyer from communicating "with a party the
lawyer knows to be represented by another lawyer in that matter"
without consent of that party's lawyer. (Emphasis added.) 134
Ill. 2d R. 4.2.
We hold Rule 4.2 is not implicated under the facts of this
case because the criminal and juvenile cases are different
"matters." The defendant did not have an attorney in the
criminal matter. Consequently, the holding in White does not
control here. We therefore reverse the order of the circuit
court suppressing the defendant's written statement and remand
for further proceedings.
BACKGROUND
On June 21, 2002, S.H., the 13-month-old daughter of the
defendant, Evelyn Santiago, was taken to Norwegian American
Hospital with a laceration to her vagina. The treating
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No. 1-06-0476
physician, Dr. Bogolub, determined the injury could be consistent
with the explanation given by the defendant--that S.H. fell onto
a child's plastic "sipping cup" while bathing. Intentional abuse
was also a potential cause.
On June 23, 2002, Detective Gregory Auguste of the special
victims unit at Area 5 began investigating S.H.'s injury. On
June 25, Dr. Fujara, a child abuse expert, informed Auguste that
S.H.'s injury was highly suspicious for abuse. That same day,
the office of the Cook County State's Attorney filed petitions in
the juvenile justice division of the circuit court seeking to
have S.H. and her two-year-old brother, E.H., adjudicated wards
of the court (hereinafter, juvenile case). The petitions were
based on S.H.'s vaginal injury. Attorney Melinda MacGregor was
appointed to represent the defendant. She entered an appearance
on June 27, 2002.
The defendant was interviewed numerous times by Detective
Auguste and, on August 28, 2002, was arrested for child
endangerment. The defendant waived her Miranda rights and spoke
to Auguste about S.H.'s injury. She later waived her Miranda
rights and spoke to two assistant State's Attorneys about the
injury. The defendant continued to maintain S.H.'s vaginal
injury occurred in a bathing accident, but gave inconsistent
causes. On the following day, the defendant again waived her
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No. 1-06-0476
Miranda rights and spoke to Detective Gabriel Gomez and an
assistant State's Attorney. The defendant eventually made an
incriminating statement memorialized in writing. At no time did
the detectives or assistant State's Attorneys contact Attorney
MacGregor.
On September 27, 2002, the defendant was charged by
indictment with two counts of aggravated battery of a child, one
count of female genital mutilation, and two counts of aggravated
battery (hereinafter, criminal case). The public defender's
office was appointed to represent her and entered an appearance
in criminal court.
On February 24, 2005, the defendant filed an amended motion
to suppress evidence in the criminal case. The defendant alleged
her statements to the detectives and assistant State's Attorneys
were taken in violation of Illinois Supreme Court Rule of
Professional Conduct 4.2. The defendant alleged the rule was
violated because Attorney MacGregor did not consent to the
custodial questioning.
Following a hearing, the trial court concluded it was bound
by the holding in White, 209 Ill. App. 3d 844, 567 N.E.2d 1368--
Rule 4.2 applies in criminal cases prior to the filing of formal
charges and prohibits contact between a represented suspect and
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No. 1-06-0476
the prosecution without the consent of the suspect's attorney.1
Following the reasoning in White, the circuit court ruled any
statements the defendant made to the detectives alone were
admissible because they did not act as the "alter ego" of the
prosecution. White, 209 Ill. App. 3d at 875. However, the court
ruled all communication between the assistant State's Attorneys
and the defendant occurred in violation of Rule 4.2 and
suppressed the statements the defendant made to them.
The State timely filed a certificate of substantial
impairment and a notice of appeal.
ANALYSIS
Illinois Supreme Court Rule of Professional Conduct 4.2
states:
"During the course of representing a
client a lawyer shall not communicate or
cause another to communicate on the subject
of the representation with a party the lawyer
knows to be represented by another lawyer in
that matter unless the first lawyer has
obtained the prior consent of the lawyer
1
White addressed the predecessor version, Rule 7-104(a)(1)
(107 Ill. 2d R. 7-104(a)(1)).
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No. 1-06-0476
representing such other party or as may
otherwise be authorized by law." 134 Ill. 2d
R. 4.2.
The State contends (1) Rule 4.2 does not apply in criminal
cases, (2) if Rule 4.2 does apply in criminal cases, it does not
apply before the filing of formal charges, (3) if Rule 4.2
applies prior to the filing of charges, it was not violated in
this case because the criminal and juvenile cases are different
"matters" or because the questioning is "authorized by law," and
(4) if Rule 4.2 applies and was violated, the suppression of the
defendant's written statement is not the proper remedy.
According to the State, "Not a single authority has applied the
exclusionary rule in the factual setting presented by this case."
These contentions hinge on our interpretation of Rule 4.2, a
question of law. People v. Roberts, 214 Ill. 2d 106, 116, 824
N.E.2d 250 (2005) (the interpretation of supreme court rules is a
question of law). Accordingly, we defer our review of the
evidence presented at the suppression hearing until, and unless,
we determine Rule 4.2 applies here. Reviewing courts interpret
supreme court rules the same as statutes. In re Estate of
Rennick, 181 Ill. 2d 395, 404, 692 N.E.2d 1150 (1998). The
"primary goal" is to ascertain and give effect to the intent of
the drafters, the most reliable indicator of which is the plain
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No. 1-06-0476
and ordinary meaning of the language used. Roberts, 214 Ill. 2d
at 116. If the language is ambiguous, we may look to additional
sources to determine the drafters' intent, including the purposes
of the rule, the evils sought to be remedied, and the goals to be
achieved. Brucker v. Mercola, 227 Ill. 2d 502, 513-14, 886
N.E.2d 306 (2007). Review is de novo. Roberts, 214 Ill. 2d at
116.
Illinois Rule of Professional Conduct 4.2 is largely based
on American Bar Association (ABA) Model Rule of Professional
Conduct 4.2. The no-contact rule has been enacted in some form
in every jurisdiction and serves at least two purposes: (1) it
governs attorney conduct in order to foster public confidence in
the legal profession (see, e.g., United States v. Talao, 222 F.3d
1133, 1138 (9th Cir. 2000) (explaining, "The rule exists in order
to ' "preserve *** the attorney-client relationship and the
proper functioning of the administration of justice." '
[Citation.]")); and (2) it protects individuals from "being
tricked by a lawyer's artfully contrived questions into giving
his case away" (United States v. Massiah, 307 F.2d 62, 66 (2d
Cir. 1962), rev'd on other grounds, 377 U.S. 201, 12 L. Ed. 2d
246, 84 S. Ct. 1199 (1964); United States v. Sutton, 801 F.2d
1346, 1366 (D.C. Cir. 1986) (purpose of rule is "to ensure that
lawyers not prey on persons known to be represented by
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No. 1-06-0476
counsel")).
The State first contends Rule 4.2 does not apply in criminal
cases. We note that the case law, including from this and other
jurisdictions, generally holds the contrary. See, e.g., White,
209 Ill. App. 3d at 873 (the no-contact rule "applies to criminal
as well as civil cases"); People v. Nance, 100 Ill. App. 3d 1117,
1123, 427 N.E.2d 630 (1981) (addressing whether defense counsel
violated the no-contact rule); United States v. Ryans, 903 F.2d
731, 735 (10th Cir. 1990), cert. denied, 498 U.S. 855, 112 L. Ed.
2d 118, 111 S. Ct. 152 (1990) (it is "well settled" the rule
"applies to criminal prosecutions as well as to civil
litigation"); United States v. Hammad, 858 F.2d 834 (2d Cir.
1988), cert. denied, 498 U.S. 871, 112 L. Ed. 2d 154, 111 S. Ct.
192 (1990) (finding a no-contact rule violation in a criminal
case); see also United States v. Tapp, No. CR107-108 (S.D. Ga.
June 4, 2008) (addressing failed attempts by the Department of
Justice to exempt federal prosecutors from the no-contact rule).
Based on the cited authorities, we reject the State's blanket
position that Rule 4.2 does not apply in criminal cases.
The case law is less settled regarding the State's second
contention--that the no-contact rule applies only after formal
charges are filed. Compare United States v. Fitterer, 710 F.2d
1328, 1333 (8th Cir. 1983), cert. denied, 464 U.S. 852, 78 L. Ed.
8
No. 1-06-0476
2d 150, 104 S. Ct. 165 (1983) (no ethical violation where the
defendant, who is not in custody and has not been formally
charged, is contacted); United States v. Vasquez, 675 F.2d 16, 17
(2d Cir. 1982) (no-contact rule not violated where noncustodial
contact occurs prior to the filing of charges); United States v.
Kenny, 645 F.2d 1323, 1339 (9th Cir. 1981), cert. denied, 452
U.S. 920, 69 L. Ed. 2d 425, 101 S. Ct. 3059 (1981) (noncustodial
contact by an informant prior to arrest or indictment does not
implicate the rule), with Hammad, 858 F.2d at 837 (no-contact
rule is not coextensive with the sixth amendment); White, 209
Ill. App. 3d at 873 (following Hammad and holding "[t]he rule is
not coextensive with the sixth amendment right to counsel, but
may apply prior to the bringing of judicial charges").
We find, however, no need to address the State's
disagreement with the holding in the Hammad and White opinions
that the no-contact rule may provide protection before the sixth
amendment right to counsel comes into play.2 The case before us
presents a more narrow issue: whether Rule 4.2 is implicated by
2
As expressed in a federal decision, the no-contact rule may
play an independent role in the proper functioning of the
administration of justice. See United States v. Talao, 222 F.3d
1133, 1138 (9th Cir. 2000).
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No. 1-06-0476
the facts presented here. This we believe is the focus of the
State's third contention--that the juvenile case and the criminal
case are different "matters" for purposes of Rule 4.2.
"Matter" is not defined in the Illinois Rules of
Professional Conduct, and the comments to ABA Model Rule 4.2
provide little guidance to its intended meaning. The cases cited
by the parties involve the situation present in White where the
prosecution or its alter ego contacts an individual about a
criminal matter without the consent of the individual's known
criminal defense counsel. Neither party points to any case
presenting the factual scenario here where a defendant seeks to
suppress evidence in a criminal case based on the prosecution's
failure to obtain consent of appointed civil counsel.
Nonetheless, absent authority to the contrary, we are unconvinced
Rule 4.2 was meant to apply in such situations.
We are persuaded that the juvenile and criminal cases are
separate matters under Rule 4.2 based on the holding in People v.
Moreno, 319 Ill. App. 3d 445, 744 N.E.2d 906 (2001). In Moreno,
the State filed juvenile wardship petitions alleging the
defendant's four children were abused. The State also charged
the defendant with aggravated battery of a child. The juvenile
and criminal cases were grounded on the defendant's alleged abuse
of her seven-month-old nephew, G.M. Following the juvenile
10
No. 1-06-0476
adjudicatory hearing, the trial court ruled the State failed to
prove by a preponderance of the evidence that the defendant
abused G.M. The defendant then sought to have the criminal
charges dismissed, arguing the State was collaterally estopped
from proceeding in criminal court because the same factual issues
were resolved in her favor in the juvenile proceeding. The
criminal trial court disagreed.
On appeal from the denial of her motion to bar prosecution,
this court affirmed. We distinguished juvenile and criminal
proceedings:
"In the juvenile proceeding, the ultimate
litigated issue was whether the minor
children of defendant were abused due to
defendant's involvement with the injuries of
G.M.; in the subsequent criminal proceeding,
the ultimate litigated issue will be whether
the defendant is criminally culpable for the
injuries to G.M. In the juvenile proceeding,
the State's purpose is protection of
defendant's minor children; in the criminal
proceeding, the State's purpose is
discovering if defendant injured G.M. and
punishing her if found guilty. The
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No. 1-06-0476
differences of purpose and goal in the civil
and criminal procedures are 'very real.'
[Citation.]" Moreno, 319 Ill. App. 3d at
452.
We also noted that a criminal trial is "the exclusive forum for
determining guilt or innocence" and that the State lacked "a full
and fair opportunity to litigate" the defendant's culpability in
the juvenile proceedings. Moreno, 319 Ill. App. 3d at 452-53.
We acknowledge the decision in Moreno arose under different
facts and addressed different issues than those raised in this
case. However, we agree with Moreno's conclusion that juvenile
and criminal proceedings, which serve different purposes and have
different goals, are entirely different proceedings. In addition
to those highlighted in Moreno, we note several other
distinctions between juvenile and criminal proceedings.
Proceedings under the Juvenile Court Act of 1987, unlike criminal
proceedings, are not meant to be adversarial. 705 ILCS 405/1-
5(1) (West 2006) ("proceedings under this Act are not intended to
be adversary in character"). As the State points out, juvenile
and criminal cases (1) have different case numbers, (2) are heard
by different judges, and (3) involve different employees of the
SAO.
Our conclusion is consistent with the common sense reading
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No. 1-06-0476
of Rule 4.2 written as a single sentence. See People v. Morgan,
112 Ill. 2d 111, 141, 492 N.E.2d 1303 (1986) (defendant's
interpretation rejected in light of "the common sense reading of
the admonition"). "Matter" in the phrase "represented by another
lawyer in that matter" refers back to the "subject of the
representation." While the focus of the investigation--the
injury to the defendant's daughter--led to both a juvenile
proceeding and a criminal investigation being instituted against
the defendant, "the subject of the representation" of Attorney
MacGregor was solely the juvenile proceeding in which the order
appointing MacGregor was entered. Because the only "subject of
representation" of Attorney MacGregor was the juvenile
proceeding, the only reference for "matter" in the latter phrase
was the juvenile proceeding in which Ms. Santiago was represented
by another lawyer. Under the facts of this case, "matter" in
Rule 4.2 could not reference the criminal investigation in this
case because it was not the "subject of the representation."
Furthermore, to read Rule 4.2 as the defendant urges would
create anomalous results for similarly situated individuals
facing identical investigations. In the defendant's situation,
she would be afforded greater protection under Rule 4.2 than an
accused in a criminal investigation where, at the time she is
interviewed by the SAO, the filing of the juvenile court petition
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No. 1-06-0476
has been delayed. Under the defendant's reading of Rule 4.2, the
accused with a juvenile proceeding pending cannot be properly
interviewed by assistant State's Attorneys without the consent of
her civil attorney; where no juvenile proceeding is pending at
the time of the interview, there is no such requirement under
Rule 4.2. We discern no reason, nor have we been given one apart
from the broad reading of Rule 4.2 urged by the defendant, to
treat these similarly situated individuals differently.
Counsel's involvement in this case reinforces our conclusion
that Rule 4.2 cannot be read as the defendant urges. The
defendant was appointed counsel in the juvenile case and, after
charges were filed in the criminal case, separate counsel was
appointed. Each attorney entered an appearance in the respective
case; there is no suggestion that the two attorneys coordinated
their respective defense of Ms. Santiago. As the State pointed
out at oral argument, no mechanism exists under either the
Juvenile Court Act of 1987 or the Code of Criminal Procedure of
1963 (725 ILCS 5/100-1 et seq. (West 2006)) to consolidate
juvenile and related criminal proceedings.
Additionally, nothing in the record supports that Attorney
MacGregor, presumably trained in the nuances of juvenile
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No. 1-06-0476
proceedings, is competent in criminal proceedings.3 In a related
vein, Attorney MacGregor's involvement in the criminal
investigation might have exceeded the statutory scope of her
juvenile appointment. See 705 ILCS 405/1-5(1) (West 2006)
(providing for appointment of counsel to represent indigent
parents threatened with the loss of parental rights and stating
counsel "shall appear at all stages of the trial court
proceeding, and such appointment shall continue through the
permanency hearings and termination of parental rights
proceedings").
For these reasons, we conclude the juvenile and criminal
cases are different "matters" for purposes of Rule 4.2. Here,
MacGregor was appointed counsel for Ms. Santiago as a respondent
in the juvenile case, a civil proceeding. At the time the
defendant was questioned by representatives of the SAO regarding
the criminal investigation, she did not have counsel in the
3
Attorney MacGregor was appointed more than two months
before the written statement of the defendant was obtained by the
SAO in the criminal investigation that the circuit court
suppressed; yet, there is nothing in the record to suggest
Attorney MacGregor played any role in that investigation.
15
No. 1-06-0476
criminal case. Simply put, there was no attorney to consent to
the contact in the criminal matter; Rule 4.2 was never triggered.
In light of our holding, we do not address the State's remaining contentions, including
whether the prosecution's questioning falls within the "authorized by law" exception to Rule 4.2
or whether suppression of the defendant's statement is the proper remedy in the face of a
violation. We also make no finding regarding the admissibility of the defendant's statements in
the juvenile case.
CONCLUSION
For the reasons stated, the order of the circuit court of Cook County is reversed and the
cause is remanded to the circuit court for further proceedings.
Reversed and remanded.
Wolfson, J., concurs.
PRESIDING JUSTICE ROBERT E. GORDON, dissenting:
I respectfully dissent from the majority opinion. One detective started one investigation
against one defendant concerning one injury. Namely, on June 23, 2002, Detective Auguste
started an investigation of one injury to defendant’s daughter. From this one investigation into
this one injury, one office of the State generated two sets of charges: one civil, one criminal. The
one office was the Cook County State’s Attorney’s office. The incriminating information
developed in this one investigation would be used by this one office to further both its civil and
criminal charges.
There is no way that defendant’s civil defense attorney could protect the rights of her
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No. 1-06-0476
client in the civil case, without being present during the interrogations of the defendant in this
investigation.
Fortunately, our supreme court had already recognized the need to protect the attorney-
client relationship, in the face of an opposing attorney’s investigation. That is the whole point
behind our supreme court’s Rule of Professional Conduct 4.2.
As the majority noted, we interpret a supreme court rule, first and foremost, by looking at
the plain meaning of its words. Slip op. at 6, citing Roberts, 214 Ill. 2d at 116. Rule 4.2 states in
relevant part:
“During the course of representing a client a
lawyer shall not communicate *** on the subject of
the representation with a party the lawyer knows to
be represented by another lawyer in that matter
***.” 134 Ill. 2d R. 4.2 .
The majority construes the words “in that matter” in isolation, without considering their
context in Rule 4.2. The word “that” refers the reader back to a specific thing previously
mentioned in the sentence, namely “the subject of the representation.” The word “that” means,
among other things, “referring to a specific thing previously mentioned.” Oxford English
Dictionary, 17 Oxford English Dictionary 868-873 (2d ed. 1989).
When we apply the words of the rule to the facts of the case at bar, the result is clear. The
defendant was “represented by another lawyer.” The prosecutors nonetheless questioned her
about the “matter” or “subject” of “that” representation. The “subject" or “matter” about which
17
No. 1-06-0476
the prosecutors questioned defendant was the injury that was the “subject” of the civil attorney’s
appointment.
As the majority also notes, if the language of a rule is ambiguous, we interpret the rule in
light of “the purposes of the rule, the evils sought to be remedied, and the goals to be achieved.”
Slip op. at 6, citing Brucker, 227 Ill. 2d at 513-14. The majority concludes that the purpose of
Rule 4.2 is to foster public confidence in the legal profession and to protect clients from being
tricked by an opposing lawyer into giving away his case. Slip op. at 7.
Applying Rule 4.2 to this case furthers both of these goals. First, it is difficult to envision
how public confidence will be fostered if the State can, with a sleight of hand, switch the labels
on one investigation from civil to criminal and back again, to suit its needs. Second, while we do
not mean to suggest that there was any trickery on the part of the prosecutors, there is also no
question that the defendant gave away the civil case, without her civil attorney’s presence or
consent. In addition, the defendant did not have the opportunity to obtain advice from her
appointed civil attorney. Thus, application of the rule to this case furthers both of the purposes
behind the rule.
By finding that the prosecutors had to contact defendant’s civil attorney before
questioning defendant, I am not finding that the civil attorney represented defendant for purposes
of the criminal case. The criminal and civil cases arose out of the exact same set of facts. Thus,
any evidence developed in the criminal case could, and would, be used in the civil case against
defendant. I find only that, in order to effectively protect defendant’s rights in the civil case, the
civil attorney had to be present when the prosecutors questioned her client.
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No. 1-06-0476
The majority relies heavily on Moreno, an Illinois Appellate Court case that found that
the State could bring both criminal and civil charges arising out of the same set of facts. Slip op.
at 10-11; Moreno, 319 Ill. App. 3d at 452-53. Certainly, the Cook County State’s Attorney’s
office can bring two sets of charges against one defendant for one injury. But in order to
effectively represent her client, the civil attorney needs to be present when the State’s Attorney
attempts to develop evidence to be used in her case. Thus, Moreno, does not dictate the outcome
of this case because the issues are not the same.
In sum, Rule 4.2 should be applicable to this case because, first, application comports
with the plain language of the rule; second, application furthers the purposes behind the rule; and
third, Moreno, the case relied upon heavily by the majority, is inapposite. Slip op. at 10-11;
Moreno, 319 Ill. App. 3d at 452-53. For these reasons, I would affirm the trial court’s ruling, and
thus I must dissent.
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No. 1-06-0476
REPORTER OF DECISIONS - ILLINOIS APPELLATE COURT
_________________________________________________________________
THE PEOPLE OF THE STATE OF ILLINOIS,
Plaintiff-Appellant,
v.
EVELYN SANTIAGO,
Defendant-Appellee.
________________________________________________________________
No. 1-06-0476
Appellate Court of Illinois
First District, First Division
Filed: September 8, 2008
_________________________________________________________________
JUSTICE GARCIA delivered the opinion of the court.
Wolfson, J., concurs.
R. Gordon, P.J., dissents.
_________________________________________________________________
Appeal from the Circuit Court of Cook County
Honorable Dennis J. Porter, Judge Presiding
_________________________________________________________________
For PLAINTIFF - James E. Fitzgerald, Assistant State's Attorney, Of Counsel
APPELLANT Annette Collins, Assistant State's Attorney, Of Counsel
Christopher Petelle, Assistant State's Attorney, Of Counsel
Veronica Calderon Malavia, Assistant State's Attorney, Of Counsel
RICHARD A. DEVINE
State's Attorney of Cook County
Richard J. Daley Center–Room 309
Chicago, Illinois 60602
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No. 1-06-0476
For DEFENDANT - Denise R. Avant, Assistant Public Defender
APPELLEE EDWIN A. BURNETTE
Public Defender of Cook County
69 W. Washington, 15th Floor
Chicago, Illinois 60602
21