People v. Anderson

evidence, unnecessary to ad against weight of the it is the manifest argument. finding of unfitness on one “[A] dress the State’s statutory re grounds.” need to other In ground obviates the review J.J.,

CONCLUSION reasons, affirm foregoing judgment For the of the circuit we court.

Affirmed. JJ., STEWART,

CHAPMAN and concur. ILLINOIS, THE PEOPLE THE Plaintiff-Appellee, OF STATE OF MICAH ANDERSON, Defendant-Appellant. (1st Division)

First District No. 1 — 06—1118 Opinion September filed HALL, J., dissenting. (Pamela Burnette, Defender, Chicago Leeming, M. As-

Edwin A. Public of counsel), Defender, appellant. sistant Public of for (James Alvarez, Attorney, Chicago Fitzgerald, Mary M. E. Anita State’s Smith, counsel), Needham, Attorneys, Margaret M. State’s E and Assistant People. for the of the opinion delivered the court:

JUSTICE GARCIA defendant, Anderson, from conviction for appeals Micah his Kenji juryA the defendant degree the murder of Robinson. found first 13, 2003, shooting of Robinson. for the November death accountable imprison- years’ Linn Judge James sentenced denying Linn erred his mo- argues Judge that in ment. The defendant in the allowing permitted tion his arrest and quash a examination jury the inference that he failed to draw Because the defendant was making inculpatory an statement. before shooting in and he admitted his role Robinson’s until after seized testimony that was by the admission of prejudiced was not investigator,” a we affirm. by “forensic interviewed

BACKGROUND Quash Arrest Motion to arrest, arguing quash a motion to his pretrial The defendant filed cause an or seized arrest warrant that he was without the fruit of an suppressed should be inculpatory statement Anderson, defendant’s Codefendant Mahendra illegal seizure. arrest; Linn conducted quash Judge a brother, filed motion also on motions. joint hearing a the two Bor, only hearing,

At Detective witness testified 14, motion, assigned 2003, investigate on was November Andras, shooting previous night’s death of Robinson. Detective investigation, who led the informed Detective Bor that previously three approximately p.m. on November witnesses heard Cermak, then car and a gunshots alley gray at 3548 West saw body red Pontiac was speeding alley from where Robinson’s discovered. Detective Andras also informed Detective Bor that Robin- son owned red Pontiac and was the defendant and the friends with defendant’s brother Mahendra. Robinson’s red Pontiac Witnesses saw street Hospital early morning near the Mt. Sinai Although November he was unable to determine who drove the Pontiac to the learned hospital, Detective Andras that Mahendra being gunshot treated for a there wound to his hand. Detective Mahendra, Andras interviewed who said was shot two unknown persons alley an Ridgeway Douglas between and Hamlin off in Chicago. Boulevard asked When Detective Andras Mahendra about clothing shot, he wore when he was Mahendra said he asked to take it home from the hospital. background After receiving Andras, this from Detective Sanders, Bor interviewed Torrance who claimed to have information about Robinson’s death. Sanders stated that on November he and Ruben alley they Brandon drove Brandon’s car to an where met the defendant and A Robinson. mechanic was Robin- repairing son’s Pontiac in the alley. complete, Once the repair was the defendant alley Mahendra, and Sanders left the in Pontiac, the and picked up dropped liquor Sanders off at a in evening, store. Later the Sanders alley was near the at 3548 West Cermak he saw and police when cars noticed Brandon walking down the Brandon street. told Sanders Robinson dead. Brandon instructed not to tell Sanders authorities that he had been day. with Robinson earlier that Johnson,

Detective Bor Latoya also interviewed wife. Robinson’s shortly Ms. Johnson stated that the told after the murder defendant her family alley, one of that he had in members last seen Robinson an spoke near Brandon and Brandon’s car. with on She also Mahendra night November 14. Mahendra said he last the previous saw Robinson drinking alley in an near Ma- persons with unknown Brandon’s car. hendra also told her the keys defendant had the to Robinson’s Pontiac. partner

Detective Bor that he the testified and drove to defendant’s house at to approximately p.m. on November him. The sitting interview defendant was alone on his front porch. Detective Bor himself officer if the introduced as a and asked bloody keys had to car and Mahendra’s defendant the Robinson’s gave The he had them and both to the officers. clothes. defendant said for an Detective Bor then asked the defendant to come Area Four interview; entering the the agreed. defendant Prior to defendant down,” car, “patted Bor him but did not handcuff Detective The rode in the of Detective Bor’s unmarked him. defendant backseat at 2:30 Detective They approximately p.m.; car. arrived at Area Four alley in the sped from the in hand. The defendant but was shot alley in left the and the unknown shooter while Brandon Pontiac direction. opposite car Brandon’s Mahendra, the drove searching defendant unsuccessfully After for later, friend, A Darryl Lee. minutes few the house another the defendant discussed Brandon and arrived at Lee’s home. Brandon shooting, and the conflict somehow settled.” The defendant “was hospital. then learned that brother at Mt. Sinai He drove the hospital parked Pontiac to the and the car on the street. Mahendra money asked the defendant to take his clothes home because there was inside. Bor at that Detective testified that he ended the interview point Four, Johnny and left Area to locate along partner, with his Darryl Powell and Lee in an effort to corroborate the defendant’s statements. 15, 2003,

Between 1:30 and 4 a.m. on Detective Bor November again. interviewed the defendant Detective Bor testified that after he Sanders, Powell, informed spoken the defendant that he had and Lee, the defendant “changed story somewhat.” Bor then Detective asked the defendant whether he willing would be to take a examination later that morning; agreed.

At approximately a.m., Detective Bor took the defendant to the police department’s “Homan Square Facility” for a polygraph examination. Forensic Howley Detective administered the examina- tion and told the defendant and Detective Bor that the defendant failed. Detective Bor took the defendant back to ap- Area Four at proximately p.m. 1:30

Detective Bor testified that he interviewed the defendant again at approximately 4:30 that same afternoon. He first told the the results of the polygraph According examination. testimony, the defendant then admitted that earlier in day liquor traveled to a store with Brandon, Sanders who was a high-ranking member of the Insane gang. Vicelords Brandon told the defendant that got Robinson “has get,” which he understood to mean that Robinson was going to be killed. The defendant later drove Robinson’s pick up Pontiac to Mahendra, and the two met Brandon and Robinson in the alley behind 3548 West Cermak. When the defendant got and Mahendra out of the Pontiac, Brandon told them Robinson, to “arrest” meaning they should hold him he Robinson, so could not run. theAs brothers held Brandon told Robinson that he had to answer for the shooting death earlier, David Scott several months in which Brandon believed Rob- inson was love,” involved. Brandon then a “gang recited statement of removed a revolver clothing, from his and shot Robinson three times. In shooting Robinson, accidentally Brandon shot Mahendra hand, causing Mahendra to run alley. up from the The defendant met with Brandon night, later and Brandon told him not to tell anyone what happened. When the defendant visited Mahendra at the hospital, he instructed Mahendra to tell authorities that was shot in an alley between Ridgeway Douglas. and Hamlin off the inculpa-

Detective Bor testified that after the defendant made statements, the defendant under arrest. Dur- tory formally placed he evening following day, of the November the ing early (ASA) Attorney James by was interviewed Assistant State’s upon based Papa. Papa prepared a handwritten statement ASA interview, signed. the defendant reviewed and which evidence, Linn the defen- hearing Judge the above denied

After Judge arrest. Linn found Detective Bor quash dant’s motion to car that the defendant had Robinson’s Noting be a credible witness. bloody clothes, Judge Linn found that keys and his brother’s at Area Four legitimate investigation in a while he was engaging were “[LJooking further evidence. at pursuit not on a “lark” in and were encounter,” and the nature of the totality of all circumstances Amendment was not violated Judge Linn found “that the Fourth [the defendant].” police] [the encounters

Trial trial, jury to a which was proceeded The defendant’s case opening bench trial. In simultaneously with Mahendra’s conducted placed officers first statements, counsel noted that defense door small, interview room with a closed defendant in a windowless Defense toilet, water, at 2:30 2003. and no or bed until sign did not a statement that the defendant counsel also stated by a prepared prosecutor was later and that the statement 53 hours reviewed it. before the defendant at substantially to that introduced similar

The trial evidence Latoya Johnson arrest. Torrance Sanders quash the motion to Bor introduced their to Detective consistently with statements testified quash arrest. at the motion leading up to to the same series of events

Detective Bor testified 1:30 and a.m. the defendant between interview with that after that interview Detective Bor testified 2003. November aby be interviewed willing “would be if the defendant asked unit,” and the defendant works another investigator forensic who facility Square Bor described the Homan Detective said would. divi- of “the forensics as the location place that interview took where According to his division, [and] vice division.” sion, narcotics unit to a “Detective” in the forensics Bor called testimony, Detective Square Homan interview, then took the defendant schedule Detective Bor 11 a.m. on November facility approximately conducted investigator,” Howley, a “forensic testified that of the defendant. the interview if prosecutor

When the asked Detective Bor he learned the results interview, objected defense counsel and asked for a sidebar. later parties pres- recounted details of sidebar outside the sidebar, ence of the after jury testifying. Detective Bor finished At the prosecutor revealed planned question how she Detective Bor examination, about the Linn polygraph Judge which ruled “would not any cause unfair prejudice Judge to” the defendant. Linn noted that mouth, “[t]he word came anybody’s never out nor the fact he flunked argued although test.” Defense counsel prosecutor did not use the “polygraph,” word “the inference is there.” Judge Linn commented to counsel that he quite defense “made bit of talk in your opening your statement and in cross-examination about only fact it was long period after a of time up he came with an inculpatory statement.” properly,” Judge Because it was “handled Linn found the questioning proper. sidebar,

After the Detective Bor testified that he “discuss[ed] with Detective Howley the course of his interview with the defendant.” Detective Bor transported then the defendant back to Area Four and again interviewed him 15, at 5 2003. Over defense objection, counsel’s Detective Bor testified that he discussed with the defendant his interview with Howley, “the guy.” forensic Detective Bor testified that after that discussion the defendant admit- ted his part in the murder and placed was under formal arrest. Papa

ASA testified that he handwrote a statement based on his defendant, interview of the which the defendant signed. reviewed and That statement was read into evidence. It corroborated the version of events described Detective at the pretrial motion and at trial. jury convicted the degree defendant of first murder. This

timely appeal followed.

ANALYSIS Quash Motion to Arrest The defendant Judge first contends that Linn denying erred in motion to quash his arrest because he was seized without a warrant or probable cause at some point overnight after his stay at Area Four on 14, 2003, November but before inculpatory statement.

“In reviewing a ruling trial court’s quash motions to arrest or suppress evidence, the appellate court defers to the court’s factual findings they unless are against the manifest weight of the evidence.” People Jones, v. 566, 573, 374 Ill. App. (2007), 3d 871 N.E.2d 823 citing (2001). People Sorenson, v. 425, 430-31, 752 N.E.2d 1078 However, legal “we review the questions of and the cause 248 Jones, 573, citing de novo.” 374 Ill. 3d

suppression of evidence Sorenson, Ill. 2d at 431. and the Illinois Constitution

Both the United States Constitution and seizures. persons from unreasonable searches protect of 1970 273, (2008), citing U.S. 262, Ill. 2d 898 N.E.2d 603 People Cosby, v. 1970, I, for Const., IV; person §6. art. A is seized amend. Ill. Const. when, or “by physical means of force purposes amendment fourth movement is restrained.” authority, his or her freedom of show (2006). 113, To Sturgess, N.E.2d People v. whether, occurred, courts consider determine whether a seizure has “ incident, surrounding the ‘in of all of the circumstances view not free to would have believed that was a reasonable ” Menden United States v. Cosby, quoting leave.’ 497, 509, 544, 554, 100 S. Ct. hall, 446 U.S. 64 L. Ed.

(1980). determining consider whether

“Factors Illinois courts (1) mood, time, length, place, include: defendant was arrested (2) the police; defendant and the encounter between the mode (3) or of formal arrest present; any indicia number of officers (4) drawing guns; of handcuffs or restraint, such as the use (5) understanding of or officers; subjective belief intention of the (6) he could refuse to defendant; the defendant was told whether (7) in a transported the defendant was police; whether accompany (9) (8) leave; told he was free to car; the defendant was whether (10) arrest; and under the defendant was told whether People Washington, [Citations.]” officers. language used “Courts must examine App. 3d been an arrest has to determine whether totality of circumstances 265, 273, 521 Prince, 681 N.E.2d App. 288 Ill. 3d People made.” v. (1997). “could indicate rights Miranda read a defendant his

That officers criminal custody suspicion on that he was in person ato reasonable (1982). A 32, 37, 103 Townes, Ill. 2d 435 N.E.2d v. activity.” People for to the station voluntarily accompanies police to remain there while implicitly consent does not questioning v. People an arrest. cause for probable in search of police investigate (1995). Although 943, 950, Barlow, 654 N.E.2d App. 273 Ill. 3d determining whether interrogation an length courts consider room “does in the interview seized, long spent time a defendant was detained illegally defendant was [a] conclusively establish whether (finding that Prince, 3d at 273 App. police at the station.” station remaining at the after not seized defendant was 54, 65, N.E.2d Perez, 3d People v. overnight), citing Bor, Based on the of Detective whom the trial court credible, found probable had cause to arrest the defendant when he shooting, admitted his role in the at approximately p.m. on 15, November People Jackson, (2009) (where facts known to officers would lead a reasonably cau

tious to believe the crime, defendant committed a probable exists). cause parties, however, dispute when the defendant was seized: the principally State argues that the defendant was not seized until arrest1; his formal voluntary contends that his presence at station transformed into an unlawful seizure at point some before his inculpatory statement to the police on November 15, 2003, which he does not dispute probable established cause for his arrest. noted,

As the defendant does not voluntarily now contest that he accompanied officers to Area Four 14, 2003. When Detec tive Bor and his partner first encountered the porch defendant on the home, outside they display did not a weapon or language use was threatening suggested or compliance mandatory. Cosby, 231 Ill. 2d at quoting Mendenhall, 446 U.S. at 64 L. Ed. 509, 100 S. Ct. at 1877. The defendant willingly gave up Robinson’s keys car and his brother bloody Mahendra’s agreed clothes and to ac company the officers to Area Four.

Nor do we find indicia of a seizure at the time the defendant ar rived at Area Four. Although Detective Bor read the defendant his Miranda rights before first interviewing Four, him at Area “where defendant voluntarily accompanies an officer to the police station, there is no formal arrest, declaration of and the defendant is not searched, handcuffed, fingerprinted, or photographed, the defendant is neither seized nor under arrest.” Sturgess, 364 Ill. App. 3d at cit ing People v. Myrick, 274 983, 989-90, 651 N.E.2d 637 (1995). The deny defendant does not that the factors noted in Sturgess present are in his case: no formal declaration of arrest occurred when Four; arrived at Area handcuffed, nor was the defendant finger printed, or photographed. authority Absent contrary, that the 1The position State’s initial probable is that the circuit court found cause present to arrest at the time Detective Bor “encountered the defendant at his residence.” The record is denying motion, not so clear. In the defendant’s Judge Linn commented that the pursuit detectives were not on a “lark” in incriminating evidence brought after the defendant was first to Area Four. There would be no need for Judge this comment had Linn ruled the defendant 12(e) (West was arrested on cause at his home. See 725 ILCS 5/114 — 2006) (ruling suppression findings motion should “state the of fact and law”). conclusions of 250 subject pat limited he entered defendant was to a down before way

police vehicle on his to Area Four adds little to his claim he that gave was at Area Four before he his statement. inculpatory seized Nor voluntary cooperation does the initial nature of the defendant’s get product police transformed into the coercion because the defendant accompanied police taking the officers in the car rather than his own (“[a] transportation (Myrick, police at 989 App. means 3d person a a police voluntary officer can drive station for interview”)) because at the possessed weapons or the officers time of (that (Cosby, the encounter at the defendant’s home 231 Ill. 2d at 287 carrying guns they thereby not mean that have officers were “does Mendenhall”)). contemplated displayed guns by manner any authority are we aware of a seizure occurred Nor holds he based on Detective directive to the defendant should stay on the he in the interview room and knock door should need as sistance, and partner attempted while he to locate witnesses that course, might corroborate the defendant’s version of events. Of follow Four, never ing police arrival at Area told the defendant that Ill. 2d Cosby, (police he was free to leave. See 231 at 288 under no legal no compulsion obliga to inform an interviewee that he is under interviewed), Robinette, 33, Ohio 519 citing tion to remain to be v. U.S. 417, Nor, however, Ct. L. Ed. 2d 117 S. 419 was that he detention or that pursuant police he told must remain Telling police that a formally under arrest. defendant of was appears him within ficer escort to the restroom to be reason would station, able a encounter to ensure that the neces voluntary bounds of may evidence of crimes sarily reports a secure environment where and guest present, request voluntary be remains secure. A a at a while at the station is not an police accompanied police station be seized, longer guest, person but a indication that the individual is no Washington, indicia of a See in the absence of other seizure. least (“No courts consider all dispositive factor is App. Ill. case”). surrounding the detention each the circumstances presence police at a station course, person’s as the of a length Of may arrives tend grows, voluntariness which first 789, 801, 564 v. N.E.2d People Young, See dissipate. (“the (1990) police accedes to a initially fact that a defendant legitimize does not request accompany them to the station station”). It is dif he arrived at the of defendant after treatment station that presence an at the say ficult to when interviewee’s stay, a coerced an unreasonable begins voluntarily transforms into Reynolds, People seizure. See (“Even (1994) not he was under ar- if a told that officer, handcuffed,

rest, fingerprinted, not touched searched, subjected may procedures, or arrest have other been if he told that he leave and he illegally detained was not could added)). did leave” (emphasis not feel free to however, that remains, It the defendant’s burden to demonstrate Four, stay, including overnight his at an presence continued Area Graham, illegal App. seizure. 214 Ill. People constituted an (1991) (it to defendant’s burden show that a is illegal). length seizure and that of time occurred the seizure was is, law, voluntary alone of the as a matter insufficient to transform presence a police of a citizen at station into a fourth amendment viola Prince, tion. App. assessing 3d at Cases whether an initial voluntary at presence police the station for an interview transforms an illegal variety into list a of seizure factors to be considered under totality-of-the-circumstances Prince, the standard. See at 273 (listing seven factors consider to whether “a courts determine leave”); reasonable would person have believed that he was free to Washington, Ill. App. (listing 3d at 24 10 factors courts consider to arrested”). determine “whether a defendant was According to Detective trial testimony, the defendant was given water bathroom, food and and free of the pres use albeit in the ence of an It escort. is also clear the that detectives were confronted with suspicious involving injury circumstances the to the defendant’s brother and Robinson’s murder. The defendant claimed that Brandon shot his brother the hand apparent alley for no in an reason several blocks away alley from the body found; where Robinson’s was wit car, nesses saw keys had, Robinson’s the to which speed the defendant away alley from the body same where Robinson’s was discovered. The added, defendant with explanation, no that he and Brandon “somehow settled” the incident brother involving being his shot the hand Brandon. help That additional sought explain information was to the nearly incomprehensible defendant’s account of the events leading to the his brother shooting part “investigatory of is of the function of the (1977) (to police.” Wipfler, People v. N.E.2d hold that the mere request accompany that an individual officers to the police investigating station to assist in a into crime translates an arrest of person request that “would that the police mean could presence anyone, the questioning, of even for noncustodial unless and until they had probable questioned”). cause to arrest the to be fact, In it the provided was the with the detectives name Darryl of Lee as an corroborate the individual would investigative In course of version events. the their func tion, the sought questioning detectives to Lee interview before (an Prince, attempt to defendant further. See suggested by locate of the crime as the defendant perpetrator police an interview while the defendant remained at the station earlier seizure). The to illegal did not constitute an defendant was directed to corroborate the sought remain at Area Four while the detectives by interviewing others; nothing there is defendant’s statements seeking that the detectives were support record to inference they gather keep attempted at Four while ad the defendant Area ditional to create cause to arrest the defendant. facts police, If his sought cooperation the defendant to cease he make his intentions clear. The record is barren was free to at have from such evidence. We no some station, product he point stay stay felt his during his contrary, coercion. To the defendant continued day with the after voluntary cooperation demonstrate his examina- overnight stay, by willingness undergo polygraph sway tion. defendant believed could Apparently, investigating examiner, perhaps swaying he was believed By provid- had no in death. that he involvement Robinson’s detectives events, of corroborate his version ing names of individuals that would aim in the was to end his involvement we infer the defendant’s investigation. unlawful seizure, places the defendant his claim of an support

To Ill. N.E.2d 1047 heavy People Lopez, reliance (2008). However, manifesting factors a coercive presence In substantially Lopez, different. Lopez makes case atmosphere and home asked 15-year-old came to the defendant’s two detectives at 229 Ill. 2d Lopez, them station. 347. accompany police him to the here, the detectives accompany the defendant’s decision Much as voluntary. suggests evidence police “[T]he was found to be station voluntary and was accompany police decision to defendant’s Ill. Whether that Lopez, 229 2d at 352. not the result of coercion.” became the criti police at the station voluntary cooperation dissipated police at the station presence That the defendant’s initial cal issue. subsequent negate possibility “does not voluntary, was at now consider “[W]e 229 Ill. 2d 352. Lopez, unlawful.” conduct was *** would not juvenile, position, in reasonable defendant’s whether a at 346-47. Lopez, Ill. 2d have free to leave once there.” felt closed, the door interview placed was in an room juvenile in a interviewed, implicated told he was immediately and was was in the He was room. Ill. at 353. told to wait Lopez, 229 murder. go anywhere at He not allowed to Lopez, escort, interview room for he “remained in the an station without family any four hours contact or other without with his a well-being” signed Lopez, interested his before he confession. Ill. 2d at 353. a juvenile, Lopez position,

Whether reasonable in the defendant’s answered, would not have felt free to appears leave to have been to a extent, great in the first questioning by 20 minutes of the defendant’s the detectives at the 15-year-old juvenile station. The was told by the “implicated detectives that he was in the crime [of murder].” Lopez, 229 Ill. 2d at clearly conveyed 353. The statement defendant that the knowledge detectives had of his involvement in the murder, investigation” the “focus of their centered on the defendant, and that he should infer that he was not free to leave. (the Prince, 288 Ill. 3d at sup fifth of seven factors listed to seizure). port finding of a The defendant also testified that he room, believed he was locked in the though interview even the detec door, tives said the closed, while Lopez, was unlocked. 229 Ill. 2d at police, 353. The having concluded that the implicated defendant was murder, left the defendant at the police station to conduct investigation further with the aim apparent obtaining probable cause for the Lopez, defendant’s arrest. 353-54. totality

Under the present in Lopez, circumstances where murder, was told he was implicated was placed in that, closed interview room from the perspective, ap peared locked, to be an inference consistent with the instruction that he must “knock” on the gain door to the attention of someone on the other side as opposed merely door, opening the where he was a time, minor at the and where he had no contact for four hours “with family or other person interested in well-being” (Lopez, 353), 229 Ill. 2d at the supreme court determined “[d]efen that the voluntary presence dant’s station escalated into an involuntary seizure in violation of defendant’s fourth amendment rights.” Lopez, 229 Ill. 2d at 353. The supreme court noted that a “ person voluntarily at the police station does not ‘implicitly ] consentí to remain in police station police investigate while the the crime to ” obtain probable cause for the Lopez, interviewee’s arrest.’ 353-54, Barlow, at quoting 273 Ill. at App. particularly 3d 950. “This is true person when the in question Lopez, is a minor.” 229 Ill. 2d at present circumstances in Lopez cry are a far from the present circumstances in juvenile, this case. The defendant was not a inexperienced justice system; with the criminal that he was isolated from family members is a factor entitled to little consideration under the totality-of-the-circumstances standard. Prior to the polygraph examination, police the focus of the suggests the evidence on the defendant and yet the murder had not centered investigation of police providing information his brother. The defendant was in the murder of Robin his claim of noninvolvement consistent with corrobora police at the station to allow The defendant remained son. and involving shooting of his brother of events tion of his version keys. Lopez Unlike in Robinson’s car explain away possession to that the suggest in the record to nothing in we find Washington, and “ cause for ‘the crime to obtain investigating detectives were ” 353-54, quoting Bar Ill. 2d at Lopez, arrest.’ the interviewee’s (“The at 26 950; App. 363 Ill. 3d low, Washington, telling ‘always persisted statement that the trial court’s happened’ had finds about what that she had information police interviewed the defendant record, police because the support no station”). in the during the 23 hours that she was only once hearing, so testify suppression at the Also, the defendant did not he, a reasonable no less than have no information we station at situation, free to leave the felt that he was not room before in the interview during spent the time point at Young, See inculpatory statement. gave his failure to rebut the State’s favoring illegal seizure was (among factors contentions). Bor, Detective Moreover, Judge Linn found defendant’s the defendant’s motion testify hearing at the only witness to makes no contention arrest, credible. The defendant to be quash “testimony clearly as rejected have Judge Linn should Clark, People unreasonable.” See that, a matter of contention reject implicit the defendant’s

We establishes in this case law, present the circumstances totality (where Clark, Ill. 2d at 99 of the defendant. See an unlawful seizure the defendant’s motion ruling denying grounds its the circuit court hearing testify only credible witness on the suppress clearly testimony as unreason the officer’s reject “to there is no basis below, must determine a court of review ruling able,” to overturn legal applicable establishes a matter of law the that as requirements). in the station presence

Here, continued the defendant’s cooperate continue to willingness to by his just explained as well is of his the detectives persuading hope in the with the perhaps inference is This murder of Robinson. noninvolvement stay overnight after his willingness, by the supported best examina arrest, undergo his formal and hours before that the defendant circumstances, say cannot we tion. Under these

255 any was seized at time prior to his formal arrest at 5 on November 15, 2003, following shooting. his admission of his role that, record evidence does not the defendant’s contention as a support law, matter conveyed the detectives to the defendant that his overnight station, stay stay voluntary at the started as a which act on the part, light considered in of the circumstances present day agreed exam, on the to take a polygraph was now result of People Jackson, 719, coercion. See v. Ill. App. 3d (2004) (officer’s 728-29, 810 N.E.2d 542 testimony that his intent confronting the defendant on the street was to arrest him is a proper occurred). deciding factor in illegal whether an seizure totality Under the case, of the present circumstances in this we find that a person, began reasonable cooperation who with the police voluntarily, would have believed that his cooperation continued remained a matter of his own volition. The factors to be considered in assessing whether an accused has been detained support do not legal conclusion not, fact, defendant was free to leave. Prince, 288 Ill. App. 3d at 273. The defendant has failed to demonstrate that he any point prior Cosby, was seized at to his formal arrest. Ill. 2d at 274.

Interview by Forensic Detective The defendant’s final contention is that Judge Linn erred in al- lowing Detective testify Bor to in the State’s case-in-chief about the defendant’s interview with Howley, a “forensic investiga- tor,” at the Homan Square facility 15, 2003. The argues defendant Detective Bor’s improperly placed before the jury the inference that the defendant took and failed a polygraph examination. The equates arising inference from disputed testimony with the admission of polygraph evidence.

It is well established that evidence that a defendant took a polygraph examination and the results of that examination are “(1) inadmissible in the State’s case-in-chief because the evidence is (2) not sufficiently reliable, and may results be taken as determina tive of guilt or despite innocence their reliability.” lack of People v. Washington, 363 Ill. App. 3d (2006), 842 N.E.2d 1193 citing (1998). People Jefferson, v. 486, 492-93, 184 Ill. 2d 705 N.E.2d 56 In cases, most “the prejudicial admitting effect of such evidence *** substantially outweighs probative value, its admission of the evidence constitutes “an unwarranted intrusion” into the trier of ” fact’s role in determining the credibility of the witnesses.’ Washing ton, 20, 363 Ill. quoting Jackson, People v.

368, (2002), N.E.2d 278 quoting People Baynes, 244, 430 N.E.2d 1070 limited the evidence is used in “rebut exception

A exists where Washington, was coerced.” ting a defendant’s claim that his confession supreme 2d at 493. Our citing Jefferson, however, may “polygraph clear, that while the State use court has made allegation against the defendant’s evidence as misconduct,” may shield affirmatively “attempt[ ] to use the evidence it Jackson, Ill. 2d at 371. In case.” a sword to advance its own evidence, ap “should trial courts deciding polygraph whether to admit to a scrutiny references enhanced to ensure ply in the no scenarios which necessary” given that “there are are Rosemond, Ill. People would not exist.” potential prejudice for 51, 60-61, 790 N.E.2d he interviewed the trial, Bor testified that after At Detective 2003, 15, the 4 a.m. on November 1:30 and defendant between of story of the events November gave a somewhat different defendant After his second in his initial interview. gave from the one he be he would interview, the defendant whether Detective Bor asked works in investigator who forensic “willing to be interviewed this Bor testified that agreed. Detective unit.” The defendant another in the Ho- at the “forensics division” be conducted interview would unit of away, “specialized” is a facility four blocks which Square man to division” Bor called the “forensics Detective police department. the Howley. The investigator” “forensic the interview with schedule interview, he if, 1.5-hour Bor after this asked Detective prosecutor his interview Howley “the course of Investigator “discussed” with also Defendant,” prosecutor he did. The responded and he the with defendant “what with the Detective Bor “discussed” asked whether *** Investigator Howley,” during his interview with place had taken guy.” “the forensic also referred prosecutor the whom defendant, after which the a discussion with indicated he had such Bor in Robinson’s murder. his role defendant admitted the case-in-chief, in the State’s testimony admitted this Because testimony ap testimony. This of such first the relevance we address jury before the question ultimate anything if to add little pears murder of degree of the first or innocence guilt the defendant’s the consequence, identify any fact the State Nor does Robinson. more or less make testimony would disputed the existence of which People v. Bea testimony. See this be without than it would probable (2008) (“evidence relevant is 75-76, man, Ill. 2d more or consequence any fact the existence of if it tends to make evidence”). fact, the In the it would be without than less to a “forensic references repeated the for explanation offers no State during its direct unit separate, “specialized” in a investigator” this any relevance find do we Bor. Nor of Detective examination approxi- at death Robinson’s circumstances testimony 13, 2003. mately the “forensics from investigator “specialized” of a description jury that before the however, impression did, create

division” interrogation enhanced some level necessary apply felt it to such any reference But statements. previous to the defendant’s entirely outside appears questioning extraordinary “forensic” guilt beyond going prove facts scope of relevant mysteri and the Detective Bor the facts that Nor do reasonable doubt. his interview with course of “the guy” discussed ous “forensic later discussed and the Defendant,” that Detective Bor light on any additional interview, shed during that place” took “what shooting death in Robinson’s involvement possible the defendant’s testimony improperly disputed Cermak. If this alley at 3548 West polygraph, failed a taken and the defendant had jury apprised effect of “prejudicial to conclude that compelled we would be probative its substantially outweigh[ed] admitting such evidence for the mo Setting 20. aside Ill. Washington, 363 value.” clear that this appears it jury apprised, was so ment whether the should prejudice substantial testimony created the risk of Rosemond, evidence. into explicit veer App. 3d irrelevance of Detective acknowledge apparent the

Appearing to the “opened that the defendant testimony, the State contends statement, opening counsel’s testimony by defense door” to the to convince State, “clearly calculated which, according to the was prepared signing the statement was coerced” into jury that defendant open- counsel’s length from defense quotes The State by Papa. ASA ing statement: after, two-thirty approximately

“Now, day the officers police his house. The up police at p.m., my client met with him to a station They drove a station. drove him to room. A room A small in a small interview room. placed and him It had a no windows. walls, This room had hard floors. with hard on that no windows [sic] There was kept closed. door that was facilities, toilet facilities. no no It has The room has no clock. door. was no room. There provisions food or water There was no in that room. bed by prosecu- and a by policeofficers

Now, questioned my client was later, prosecutor a Fifty-three hours Fifty-three hours later. tor. by the him, handwritten statement to a handwritten presented he did. sign. him to And prosecutor for Now, statement, I say by this prosecutor. was handwritten a by Not written him. And videotaped this wasn’t a That statement. could played you be the on TV for to see. To look at the demeanor of the person speaking your and make own decision about by statement. This is not a a stenographer statement taken like you Reporter today. party, see the Court A third not a of member police, taking who is down saying. what the witness is You don’t have the benefit of that.

And tape you it wasn’t an audio can where hear the statement from lips. get [sic] the witnesses own can hear You and sort of feeling making for how the witness is the statement. This awas by handwritten prosecutor. statement This is what the Defendant signed.” reject

We the State’s of characterization this excerpt of defendant’s opening having statement as the door was opened to what otherwise In laying irrelevant “forensic” out evidence. a zealous defense, question highly defense counsel must be free to call into incriminating without, nature defendant’s confession at the time, not, being opened irrelevant, same deemed to have the door to if (West 2006) (effective prejudicial evidence. See ILCS 5/103—2.1 18, 2005, July interrogations all electronically not recorded where inadmissible). presumed death has fact are occurred Moreover, excerpt opening the defendant’s ad- statement only dressed statement ASA by Papa. handwritten We see no con- any nection between investigation” “forensic that necessitated travel separate facility housing “specialized” away to a this unit four blocks signed by handwritten statement the defendant approximately 24 hours after his interview with the investigator.” “forensics by handwritten statement precipitated was defendant’s failure examination; polygraph of the the handwritten statement flowed from Only oral Bor. confession Detective the defendant’s oral confession to Detective Bor at 5 November precipitated by the defendant’s failure of the examination. mention excerpt No of the defendant’s oral confession was made in the opening of the defendant’s statement set out State’s brief. suggesting Nor does the present authority State that defense description counsel’s of the conditions of the interview room amounts claim that to a the ultimate confession was the result coercion, which, turn, opens the door to rebuttal evidence. (admission Jefferson, polygraph 2d at 493 of See 184 Ill. evidence by promising where claimed proper misconduct family custody upon giving her from so she could see her release confession), v. citing Triplett, 37 Ill. 2d 226 N.E.2d People opening counsel’s (1967). heavily on defense relies so That the State testimony lends disputed admission of justify the statement testimony of the “forensic” claim that support claims, that of a the defendant very inference raised the Detective Bor exam. polygraph failed admitting alluded to Judge Linn purpose” the “limited Nor is Jackson, before us. See clear on the record

this evidence purpose the limited clearly define judge’s failure to (noting trial 369-70 admitted). on the side expanding In evidence was polygraph for which Linn stated that testimony, Judge regarding bar any unfair not cause testimony] would [the that “was satisfied men Judge Linn’s brief relevance. ruling on its prejudice,” without time about the a bit of talk” quite “made that defense counsel tion that he too believed suggests at Area Four spent period claim of to rebut testimony was admissible disputed in rebuttal. may be introduced coercion, evidence polygraph much as may introduced evidence be (polygraph 2d at 493 Jefferson, See of a coerced defendant’s claim rebutting purpose for the limited confession). during opening state However, counsel’s “talk” defense to be weight question intention to call into ments makes clear his to) given it (as, course, he had because was given to the confession arrested, formally after the defendant was approximately hours and unstated contention and not because of some unknown “I it handled think Judge coercion. Linn’s statement the introduction of irrelevant provides justification no for properly” evidence. and the State’s references

Additionally, Judge both Linn’s misapprehend of Detective Bor defendant’s cross-examination appropriately limited can be in which evidence scenario his direct during came Detective Bor’s statements introduced. that cross- of the obvious perhaps It an overstatement examination. is jury cannot testimony already before covering examination for introduced the door evidence rationally opened be deemed to have clear, made the State supreme our court during direct examination. As jury of a apprises may make use of evidence preemptive argument, yet unmade. counter a coercion polygraph examination to no “serve[s] case-in-chief Such evidence introduced in the State’s Jackson, Ill. 2d at 370-71. legal purpose.” proper us is whether however, question real before Ultimately, jury was, “clearly signaled testimony, irrelevant as it disputed Johnson, People polygraph.” taken and failed a [the defendant] had on our close 103-04, Based conten- us, reject the defendant’s the record before we examination of tion that only the inference to be from disputed drawn the testimony was that “a testing device was employed in the [with interview the investigator].” Johnson, forensics 208 Ill. 2d at 104. Much as our supreme Johnson, court held in we find that Detective Bor’s forensic testimony improperly did not apprise jury the that the defendant had taken Johnson, and failed a polygraph. 208 Ill. 2d at 104.

The disputed testimony offered nothing more than irrelevant evidence, the admission of which the defendant does not contend amounts to reversible error. We note the defendant never filed a pretrial motion in limine to bar the introduction testimony of the now improperly contends apprised jury polygraph his examina given by tion Investigator Howley. People Owen, See v. (1998) (“Motions

818, 822, 701 N.E.2d 1174 designed limine are to call to the court, trial, attention of a trial in advance of some evidence which, because of potentially prejudicial nature, its cannot be discussed jury’s presence until the court has determined it is admis sible”). unpersuaded by

We are argument that Detective testimony Bor’s equivalent was the polygraph because, evidence noted, Judge Linn “[t]he word polygraph anybody’s never came out of mouth, nor the fact any [the defendant] flunked test.” The terms “forensic investigator” and “forensic interview” are not tantamount polygraph to evidence because the jury [do not] “terms alert the a testing device was employed Johnson, the interview.” at 104. persuaded Nor are we that the investigator” terms “forensic and “forensic interview” the context of equivalent this case are the of “technician” or “examiner” that have been improperly found to convey jury polygraph. use of a People Mason, See (1995); Johnson, 653 N.E.2d 1371 208 Ill. 2d at 104 cf. (absence of the terms “technician” or “examiner” in testimony suf Mason). ficient distinguish Here, to case from Detective Bor never testified to result of the defendant’s interview with Detective Howley.

We conclude Detective vague apprise Bor’s was too to jury changed story that the defendant failing polygraph his after a case, examination. Under the disputed testimony by facts of this Bor, irrelevant, while did not amount polygraph evidence.

CONCLUSION The defendant was not until seized his formal arrest interviewing after detectives he incriminated himself in the murder of Kenji dispute voluntarily Robinson. The defendant does not that he accompanied police officers to Area Four from his home on November willingly demonstrates The evidence second during examination undergo polygraph a agreed 12 hours after detectives, approximately investigating by interview delay in Area Four. accompanied voluntarily Four an at Area kept exam scheduling The defendant complained. hours, he never to which additional Four, began as Area which stay at overnight failed establish into defendant, was transformed part of the voluntary act on the ap- cause at formal arrest prior to his any point seizure at Additionally, no reversible 15, 2003. proximately irrelevant, prejudicial, but on Detective error occurred based investiga- by a forensic was interviewed testimony that the defendant in the murder abetting tor, aiding he confessed to after which Robinson. murder. degree for first conviction

We affirm the defendant’s Affirmed.

PATTI, J., concurs. HALL, dissenting:

PRESIDING JUSTICE the defendant’s statements I I believe that respectfully dissent. fruit of an unlawful seizure. suppressed have been as the should challenge to by the and thus entitled person “A is seized officer, Amendment when action under the Fourth government’s ’ ‘ authority,” terminates or “by force or show of physical means of ‘through means [citation] of movement restrains his freedom omitted.) Brendlin v. intentionally (Emphasis [citation].” applied’ S. Ct. 249, 254, L. Ed. 2d California, 551 U.S. (2007). totality of the circumstances look to the Courts constitutes seizure encounter determining particular whether Prince, App. 3d v. rights. People amendment implicating fourth 265, 273, whether, in is based a seizure has occurred

The test of whether circumstances, person a reasonable surrounding light of all the leave. free to he was not would have believed defendant’s situation (2006). In N.E.2d 741 Sturgess, App. 364 Ill. People v. voluntary encounter case, I that the the instant believe inter where into a seizure detectives escalated ordered warnings and thereafter receiving Miranda rogated after and was stayed overnight room, interrogation where remain in an go bathroom. permission to ask for required Under the totality circumstances, I do not believe that a person reasonable in defendant’s situation would have felt free to decline the detectives’ orders or otherwise terminate the encounter. See, e.g., Booker, People v. 384, 393-94, 568 N.E.2d 211 (1991). Moreover, I believe that the illegal seizure was because the lacked cause to arrest defendant at that time.

Probable cause for arrest exists when the facts and circumstances arresting within the officer’s knowledge are sufficient to warrant a man of reasonable caution to believe that an offense has been commit ted and that offense; arrested committed the mere suspicion the person arrested has committed the offense is insufficient. Booker, 209 Ill. App. 3d at 393-94. Furthermore, a probable cause determination may not be upon based the results of a polygraph Booker, examination. at3d sum, In I believe that the defendant’s statements should have been suppressed they because resulted illegal from the seizure and there was no intervening event purge the taint illegal of the deten- Accordingly, tion. I respectfully dissent. (Rollin

In re BITOY, ESTATE OF EARL EUGENE Deceased J. Soskin Associates, Ltd., Petitioner-Appellant, Rudolph Bitoy, Adm’r, Respondent-

Appellee). (1st Division) First District No. 1 — 07—3258 Opinion September filed a notes Bor led the defendant to an interview room with desk to take According The to Detec- and talk. room had no window or bathroom. closed, Bor, the but locked. Detective Bor did not tive door was However, in that handcuff the defendant room. told stay partner there” until Detective Bor and his returned. “to room, Bor waited the interview Detective While Mahendra, and said Hospital to Mt. Sinai interviewed who went liquor persons to a two walking was shot while store unknown shot, friend attempted robbery. being After Mahendra called his an Powell, him to Johnny up hospital. him and took picked who ap- Detective testified that he returned Area Four Bor once again. to interview the defendant proximately The he was rights. read the defendant his Miranda defendant said Bor following speak officers and revealed the willing evening during details about his whereabouts November him in Pontiac picked up The defendant that Robinson stated alley to have morning they and drove an November car, all three Brandon then in his and repaired. the brakes arrived alley, they a ride car. returned to for in Brandon’s When went Pontiac to repaired. The defendant drove the Pontiac was Robinson’s As two drove up and his brother Mahendra. gas picked station Park, they parked saw Brandon area of 16th and Central Street followed street, They for to follow him. signaled and he them Douglas and Hamlin off alley Ridgeway car an between Brandon’s into person got out of Boulevard, Brandon and another unknown where the car. was, Brandon Robinson Brandon where The defendant asked pointed then gone.” unknown responded, “[h]e’s alley, ran from the began firing. Mahendra handgun at Mahendra and

Case Details

Case Name: People v. Anderson

Court Name: Appellate Court of Illinois

Date Published: Sep 28, 2009

Citation: 917 N.E.2d 18

Docket Number: 1-06-1118

Court Abbreviation: Ill. App. Ct.