• 1 The right to counsel attaches upon the filing of a criminal complaint or information and the issuance of an arrest warrant. People v. Burbank (1972), 53 Ill.2d 261, 291 N.E.2d 161; People v. Giovanetti (1979), 70 Ill. App.3d 275, 387 N.E.2d 1071; People v.Faulkner (1980), 86 Ill. App.3d 136, 407 N.E.2d 126, appeal denied (1980), 81 Ill.2d 603. The warnings or admonitions required under Miranda v. Arizona (1966), 384 U.S. 436, 16 L.Ed.2d 694, 86 S.Ct. 1602, had not been given to the defendant at the time of the remark made by defendant in the presence of Katz and Rusk.
I believe that this issue, which has been the basis of an appellate court split and an award-winning article (see Robinson, Defendant's Pre-indictment Sixth Amendment Right to Counsel: Its Attachment and Waiver, 74 Ill. B.J. 484 (1986)), requires further analysis. Compare People v. Curtis (1985), 132 Ill. App.3d 241, 245-48 (First District, Third Division); People v. Faulkner (1980), 86 Ill. App.3d 136, 139 (First District, Second Division); and People v. Hinton (1974), 23 Ill. App.3d 369, 372 (Second District) (each finding that the right to counsel attached with the filing of a complaint and execution of an arrest warrant) with People v. Boswell (1985), 132 Ill. App.3d 52, 57-59 (First District, Fourth Division); and People v. Racanelli (1985), 132 Ill. App.3d 124, 130 (First District, Fifth Division) (each finding that sixth amendment rights do not necessarily attach upon the mere filing of a complaint and execution of an arrest warrant). See also People v. Fleming (1985), 134 Ill. App.3d 562, 566-67 (First District, Second Division) (applying flexible standard based on degree of prosecutorial involvement).
The criminal defendants were in those cases in custody, under arrest and well aware that the State was proceeding against them; therefore, they had the right to counsel at the critical stages set out in the various decisions. Of course the situation we are faced with is distinguishable in that here appellant had not yet been arrested when the alleged Sixth Amendment violations occurred. Arnold v. State, Mo., 484 S.W.2d 248 (1972); People v. McGowan, 105 Cal.App.3d 997, 166 Cal.Rptr. 725 (1980); People v. Faulkner, 86 Ill. App.3d 136, 40 Ill.Dec. 895, 407 N.E.2d 126 (1980); State v. Mitchell, Tenn., 593 S.W.2d 280, cert. denied 449 U.S. 845, 101 S.Ct. 128, 66 L.Ed.2d 53 (1980); People v. Samuels, 49 N.Y.2d 218, 424 N.Y.S.2d 892, 400 N.E.2d 1344 (1980). As noted above, appellant also cited New York authority in support of his position.
[Citations.] Testimony regarding a lineup identification in violation of that entitlement is prohibited * * *. Therefore, defendant's motion to suppress such testimony should have been granted." ( People v. Faulkner (1980), 86 Ill. App.3d 136, 139, 407 N.E.2d 126.) "The law is clear that with the filing of the complaint charging Giovannetti with murder, defendant was entitled to counsel, a point which the State concedes * * *."
We recognize that there is a sharp split of authority in the appellate court opinions on this question. (Compare People v. Dove (1986), 147 Ill. App.3d 659, 662-64; People v. Fleming (1985), 134 Ill. App.3d 562, 566-69, 480 N.E.2d 1221; People v. Curtis (1985), 132 Ill. App.3d 241, 245-48, 476 N.E.2d 1162;People v. Jumper (1983), 113 Ill. App.3d 346, 349, 447 N.E.2d 531; People v. Faulkner (1980), 86 Ill. App.3d 136, 138-39, 407 N.E.2d 126; People v. Giovanetti (1979), 70 Ill. App.3d 275, 282, 387 N.E.2d 1071; People v. Marshall (1977), 47 Ill. App.3d 784, 786, 365 N.E.2d 367; and People v. Hinton (1974), 23 Ill. App.3d 369, 371-72, 319 N.E.2d 313 (sixth amendment right to counsel automatically attaches upon the filing of a criminal complaint), with People v. Racanelli (1985), 132 Ill. App.3d 124, 130-31, 476 N.E.2d 1179; People v. Boswell (1985), 132 Ill. App.3d 52, 57-60, 476 N.E.2d 1154; People v. Mitchell (1983), 116 Ill. App.3d 44, 47, 451 N.E.2d 934, modified on appeal (1984), 105 Ill.2d 1, 473 N.E.2d 1270; and People v. Dockery (1966), 72 Ill. App.2d 345, 355, 219 N.E.2d 687 (right to counsel does not attach upon the filing of a criminal complaint and the issuance of an arrest warrant absent proof of significant prosecutorial involvement in procuring the arrest warrant).) However, we need not reach the question as to whether adversarial proceedings commence upon the filing of a criminal complaint because we belie
A number of cases have held that a defendant has a sixth amendment right to counsel upon the filing of a complaint and the issuance of an arrest warrant in felony cases. ( E.g., People v. Boswell (1985), 132 Ill. App.3d 52, 476 N.E.2d 1154 (but only if there is proof of significant prosecutorial involvement in procuring the arrest warrant); People v. Curtis (1985), 132 Ill. App.3d 241, 476 N.E.2d 1162, rev'd on other grounds (1986), 113 Ill.2d 136 (the court found it unnecessary to address defendant's sixth amendment claim); People v. Faulkner (1980), 86 Ill. App.3d 136, 139, 407 N.E.2d 126, 129-30; People v. Giovanetti (1979), 70 Ill. App.3d 275, 282, 387 N.E.2d 1071, 1077; People v. Hinton (1974), 23 Ill. App.3d 369, 372, 319 N.E.2d 313, 316.) At least three cases have held to the contrary, stating specifically that an arrest warrant by itself does not formally charge a defendant with a crime.
Thus, it was error to allow this purported public record into evidence. (See, e.g., People v. Faulkner (1980), 86 Ill. App.3d 136, 139-40, 407 N.E.2d 126, appeal denied (1980), 81 Ill.2d 603.) However, where the erroneously admitted evidence does not prove any element of the offense not established by other properly admitted evidence, the error is harmless.
"The law is clear that with the filing of the complaint charging Giovannetti with murder, defendant was entitled to counsel, a point which the State concedes, pursuant to Kirby v. Illinois (1972), 406 U.S. 682, 32 L.Ed.2d 411, 92 S.Ct. 1877, and People v. Burbank (1972), 53 Ill.2d 261, 291 N.E.2d 161." This court held in People v. Faulkner (1980), 86 Ill. App.3d 136, 138-39, 407 N.E.2d 126: "Faulkner first contends the trial court erred when it denied his motion to suppress identification testimony.
406 U.S. 682, 689, 32 L.Ed.2d 411, 417-18, 92 S.Ct. 1877, 1882. While several Illinois appellate courts have held that the right to counsel attaches upon the filing of a criminal complaint or information and the issuance of an arrest warrant ( People v. Jumper (1983), 113 Ill. App.3d 346, 349, 447 N.E.2d 531; People v. Faulkner (1980), 86 Ill. App.3d 136, 139, 407 N.E.2d 126; People v. Giovanetti (1979), 70 Ill. App.3d 275, 282, 387 N.E.2d 1071), no Supreme Court nor Illinois Supreme Court decision has resolved the issue of whether the sixth amendment right automatically attaches upon the filing of a criminal complaint. (See People v. Owens (1984), 102 Ill.2d 88, 101, 464 N.E.2d 261; People v. Jones (1984), 128 Ill. App.3d 842, 848, 471 N.E.2d 590.)
However, a review of competency of counsel does not extend to areas involving the exercise of judgment, discretion or trial strategy. ( People v. Newell (1971), 48 Ill.2d 382, 268 N.E.2d 17; People v. Faulkner (1980), 86 Ill. App.3d 136, 407 N.E.2d 126.) Furthermore, mistakes in strategy will not render the representation incompetent. ( People v. Torres (1973), 54 Ill.2d 384, 297 N.E.2d 142; People v. Robinson (1979), 70 Ill. App.3d 24, 387 N.E.2d 1114.) "A defendant is entitled to competent, not perfect or successful representation."