People v. Green

THE ILLINOIS, PEOPLE OF THE Plаintiff-Appellee, STATEOF v. GREEN,

CHARLES Defendant-Appellant. (5th Division) First District No. 86 — 1019 Opinion 10, 1989. filed 14, 1988. Rehearing November denied March AM, J., dissenting.

PINCH Chicago, Egan, appellant. Robert A. of for McCurry, Attorney, Chicago (Kenneth State’s of T. Daley, Richard M. coun- Novi, McNamara, Attorneys, of Kim A. Assistant State’s and Robert sel) People. for the the court: opinion

JUSTICE of MURRAY delivered trial, was guilty After a Charles Green found bench defendant murder, arson, four counts of home aggravated burglary, residential invasion, was robbery, armed counts of armed violence. He four Illinois sentenced to life Department natural imprisonment Corrections. argues: (1) On defendant he was appeal, improperly adult; denying tried sentenced the trial court erred in (2) arrest; his motion to quash (3) proved guilty beyond doubt; its (4) reasonable the trial court abused discretion refusing to indicating allow the admission of evidence that persons other than he committed the for he was For charged. offenses which below, the reasons set forth we affirm. 12, 1985, Deases,

On Joe to January responding officer call, a fire Rule, Raynard discovered burned bodies of Lauren Rule, and Yvonne Brooks in a second-floor located at 458 apartment North Hamlin The Avenue victims had been Chicago. gagged backs, their hands stabbed, tied their Raynard behind Rule been and Lauren Rule and Yvonne Brooks had been shot. also Deases found Kim Brooks outside of the apartment building. She told her, Deases that one of her attempted assailants to shoot the bullet missed her and she had free from managed escape herself apartment Brooks, after her who severely assailants left. burned, treatment, was rushed to a for hospital subsequently died 16. leading victims, according events up deaths

defendant’s grand jury following. On Jan- testimony, consisted noon, defendant, at uary approximately who was old years time, met Derrick House in “game room” at 750 North Lawn- dale in Chicago. game room, defendant and House Upon leaving met Teddy get Bobo. House asked if he and Bobo defendant would Rule, Raynard whom years, open defendant had known three burglar to his apartment bars which were in front of the door on the pretext buy drugs. gave wanted some House $25, defendant defendant went Rule’s went apartment, up knocked, door himself and defendant Rule answered and asked he wanted, what buy bag said he wanted to cocaine some, Rule the burglar to pay opened and told Rule had $25 and bars, immediately into the there- stepped apartment, in Rule and grabbed put and ran after him. House after House Bobo to him. a to his and said about House something money head pistol another took Rule the kitchen while Bobo went into room then to woke the girls sleeping where three on two mattresses. Bobo tied a At that time girls and them with extension cord. up up brown “No, House defendant heard Rule no” the kitchen. came yelling the room where shortly out of the kitchen thereafter and into went girls, After girls talking and the were. with Bobo Bobo kitchen, room, left the went back to the and took Rule to a House bedroom, again him as then went supporting they back went. House were, to room and the “started to girls girls where Bobo smoke, coming smelled which was panicking they because [sic\” bedroom, girls worry told the not to about from back House them binding because the extension cord was loose smoke of the enough get apartment for them to free themselves and out shot before it “started thereafter House one flaming.” Immediately another, girl. of Bobo House shot the third Kero- girls, shot Defendant, girls sene who poured ignited by over Bobo. apartment throughout of the standing doorway had been inside time, on Lawndale. game this then ran out and went room told He met House in the room and House him subsequently game he had Rule. stabbed a

Following police investigation, implicated defendant was murders, 5, on taken before February Rule taken to a station 6, charged the crimes grand jury subsequently with above, trial, set forth found after a bench and sentenced guilty This followed. imprisonment. appeal natural life trial court argues jurisdiction Defendant first lacked argument find defendant’s and sentence him as adult. We try (the Act 7(6)(a) Act) merit. the Juvenile Court without Section of 2— as follows: provides minor 2—2 of

“The definition of under Section delinquent the time of an this Act not minor who at apply any shall charged and who is with years age offense was at least of murder, assault, armed robbery criminal sexual aggravated firearm, robbery when the armed was committed with vi- l(a)(12) olation of the of subsection provisions 24 — 1961, charges and all as amended. These Criminal Code prose- out same incident shall be arising other of the charges 1961, as amended.” the Criminal Code pursuant cuted added.) 37, Ill. ch. 702— (Emphasis par. Rev. Stat. 7(6)(a).

Here, years charged defendant was 16 old at the time he was victims, as the murders well as the other offenses aris- however, out ing argues, of the same incident. Defendant that since he was theory accountability directly convicted did i.e., crimes, participate 7(6)(a) inapplicable, section 2— fact actually did not commit of the crimes enumerated in sec- tion 7(6Xa), triggering application of that section. 2— (Ill. It is well settled that accountability statute Rev. Stat. ch. pars. makes 2) parties guilty both 5— 5— (People v. Clark principals; the statute admits of no degrees. (1986), 420, 144 rev’d on App. Ill. 494 grounds other 551, N.E.2d Furthermore, 119 Ill. 2d 518 138.) N.E.2d of section language for 7(6Xa) provides automatic of trial a defendant as an adult 2— who is charged with the offenses enumerated in that section and who is at years least 15 of at the time he allegedly commits age Therefore, those offenses. charged whether a defendant is those offenses an theory irrelevant; accountability otherwise is the fact remains that he is charged with the pertinent offenses, trig gering application of section 7(6Xa). 2— We reject also argument defendant’s similar with respect to the trial court’s sentencing him as an pertinent adult. The section of the Act provides as follows:

“If after trial or plea the minor is only convicted of an of fense not by covered of paragraph (a) subsection of (6) this Section, such conviction shall not invalidate the verdict or the of prosecution the minor under the criminal laws of this State, however court must thereafter proceed pursuant to circumstances, 4—8. In all other 4—7 or Sections in sentenc ing the court shall have or all dispositions available pre scribed pursuant to Chapter V the for offense of Unified Code Corrections and Article the Juvenile Court Act.” of of added.) (Emphasis (Ill. Rev. Stat. ch. 702— par. 7(6Xc).)

Defendant again argues that he an was not convicted of cov- offense i.e., ered section 7(6Xa), he insists his convictions on an 2— accountability theory are convictions of- qualitatively different above, fenses. As indicated defendant, under an the- accountability ory, deemed as guilty principal committing be as the of- fenses charged and whether or not he directly participated crimes is irrelevant. of Defendant convicted the offenses of others, and sen- robbery, among subject

murder and armed thus of tencing under the Unified Code Corrections. his argues denying

Defendant next that the trial court erred arrest, “arrest” motion to that his warrantless quash contending his entry was made an his probable during illegal without cause his fourth home his arrest and detention violated February Act, amendment his be- rights and the Juvenile Court grand pro- fore the “should tainted unable be deemed jury he offi- probable February vide cause for his arrest” on when was cially charged by the police. arrest,

At the hearing quash on defendant’s motion his Detec- investigation tive John Summerville testified that pursuant deaths and Lauren Rule and Kim Raynard Yvonne Brooks, spoke told Sum- to James Davis on 3. Davis get merville that on 11 he saw Rule and into ar- January House of House” in gument fistfight money; “got over Rule better girl January front which included House’s friend. On crowd a.m., game at 11 House at the Lawndale saw defendant and or look for going “peep” room which time said they they defendant, Rule, boy and later House and evening he saw smoking named had and were Virgil, handguns “happy who all got sticks” heard “We (marijuana PCP), say, laced with House them, got them, we Summerville further just Raynard.” we burnt cousin, stated that he subsequently Virgil identified Virgil Bridges. later that he met Bridgеs told Summerville what he defendant on 12 at 7:30 and asked January p.m. “gone “had done that he had wrong,” responded to which defendant else to got Raynard to house with someone and up Raynard’s dope and, burglar gates “things the after the were open gates” opened, he to and that also happened suppose happen,” not were [sic] at defendant and House the later overheard a conversation between gave burglar Bridges subsequently room game opening gates. about address. Summerville defendant’s his Detective James testified, partner further as did

Summerville went Clemmons, they 1 February approximately p.m., that on at apart- on the to defendant’s knocked door apartment. They answered, police as ment, a identified themselves young woman they allowed en- defendant, to they officers and asked to speak the occupants male into the Summerville asked try apartment. ID, themselves, produced the room defendant identify station come the police if he would Summerville asked defendant get stated that he wanted some Defendant questions. and answer 9 his mother. Summerville told both telephone dressed first and go did have to to the defendant and his mother that defendant not station, police the to the station house. accompanied and defendant officer gain entry apartment, No force used to to the neither displayed apartment his were in the weapon, they approximately minutes, they did not search the not apartment, them, handcuffed when he left the with and no other oc- apartment At cupants of the were taken to the station. the apartment police station, searched, handcuffed, defendant was not or fingerprinted on any charge. booked

Defendant, the recounting February events testified that policemen, out, three their his guns with arrived at apartment just his leaving, they as sister was into open rushed door apartment, began Defendant they searching apartment. if police asked officer had warrant and was told to shut up. He further stated the police apartment remained in the for V-fe hours, he was taken from apartment police station handcuffs, cousin, as were his brother and told him he police arrest, was under and he was at the station photographed house. Thompson, sister, Gloria defendant’s testified differently only to telephoned mother, extent that she her one officer had police out, gun one officer searched while the apartment other two spoke cousin, defendant’s brother and officers police never anyone threatened while were in the they apartment, and offi- cers only remained in the apartment for 20 to 30 minutes. Terry Green, brother, defendant’s Thomas, cousin, and Willie defendant’s similarly testified on these points. Green,

Viola mother, defendant’s testified that February she a telephone received call from daughter Thompson. her Gloria Thompson defendant, said were at her “getting” house Terry Green and Willie Thomas and searching house. She went police station and spoke Sergeant John Regan at 1:30 p.m., asked defendant, to see Regan refused her request. She stayed station for 45 minutes approximately longer, then left.

With respect arrest, to the time of defendant’s Detective James Clemmons acknowledged report, an arrest with his name on it but which he did prepare, indicated 5 at February p.m. time of arrest. that he Detective Michael Miller testified saw defendant at station on he was not un- February arrest, der crime, restricted ar- charged formally rested defendant on after defendant testified before the Cook grand Miller also on County jury. acknowledged cross-examina-

10 tion that an his name on it indicated defendant’s report arrest with time of arrest at 1 Assistant State’s p.m. February Attorney on 5. John O’Donnell testified that on 6 no had been February charges lodged against grand defendant to his before the prior however, jury. cross-examination, acknowledged pre- On O’Donnell appearance a to paring prior “Form 101” defendant’s before grand jury, February whiсh indicated 5 as defendant’s date ar- rest. trial found arrest court that defendant’s oc- subsequently 1

curred at on that cause for his arrest probable p.m. time, at enter police existed that and that had consent to his court motion to apartment. Accordingly, denied defendant’s his quash arrest.

It is to probable well settled that cause arrest an individual where, confronting exists when viewed the situation objectively, officer, him, well the facts to are such as arresting as known cause to the indi would a reasonable caution believe that person crime, in mind bearing vidual be arrested committed that involved, (Peo beyond not doubt. probabilities proof are reasonable 915.) 3d A ple (1985), App. v. 131 Ill. N.E.2d re Holloway finding not viewing probable court will disturb cause arrest (People (1979), unless it is v. Philson 71 Ill. manifestly erroneous. prob 3d N.E.2d A warrantless arrest App. 1223.) based if police cause made in an home have able be individual’s may People App. consent v. Williams Ill. enter. 470 N.E.2d 1140.

Here, argue specific- asserts but defendant does merely him. cause to arrest In- probable that did not have ity stead, to be his probable argument appears premised cause give po- he did not illegal contention that his arrest was because lice his consent to enter his home. cause ex hand, probable the State argues

On the other Virgil information from James Davis isted based on obtained he saw told cousin. James Davis Bridges, defendant's heard say they room them game House at defendant defendant, and, evening later while look for Rule going were say, heard “We together, he House Bridges Virgil House also stated them, them, Davis Raynard.” we burnt got just we got smok began room and game handguns all three men had cousin, corroborated Virgil Bridges, sticks.” ing “happy Sum told Detective Bridges to the police. of Davis’ statement much dope “gone up Raynard’s him he had told merville house got with someone else and Raynard open burglar gates” “things that not happened suppose hap [sic] pen.” find the We obvious inference be drawn from this informa tion by any person reasonable is that defendant and House had par ticipated shootings and fire at Rule’s on apartment January 12. Accordingly, we hold that the trial court’s finding probable cause to arrest defendant against weight was not the manifest the evidence. also reject argument

We defendant’s that the police entered his apartment without his consent. Although of the testimony police and defendant’s other, witnesses contradict each it was within the province of the court to determine the credibility of the wit nesses weight and the to be accorded their testimony resolve the inconsistencies (People v. Washington (1984), and conflicts therein. 125 Ill. App. 3d 465 666.) N.E.2d Based on the record before us, we cannot that say its determination was erroneous. De While tectives Summerville and Clemmons similarly testified that they door, knocked did not their guns drawn, have not did use force in entering defendant’s apartment, and defendant consented to their there entry, were discrepancies in the testimony witnesses respect to the number of and out of the apartment, the number of officers drawn, who had their guns amount of time the police remained in the apartment, and who was handcuffed to whom. Apparently the trial court determined the two police officers were more credible than defendant and his witnesses. Since the court in a was better position to judge credibility of witnesses, we see no reason to disturb its determination the police entered defendant’s apartment with consent.

Defendant next argues that his arrest on February 5 and his al- leged subsequent 27-hour detention the police station violated his rights under the fourth amendment and the Juvenile Court Act. He first contends that he was illegally restrained at the police station for 27 hours under “unknown circumstances” prior being charged, was not represented by counsel during time and was “cut off” from his family. Accordingly, asserts that a statement made himby after 10 “in hours custody” his testimony before grand jury hours later were the products of physical and psy- chological coercion.

It is well settled that an arrest involves three elements: in tention officer, of the understanding arrestee, and restraint of (People v. Fulton (1979), person. 68 Ill. 3d App. N.E.2d 605.) The test of an arrestee’s understanding is whether an inno- Peo

cent, thought reasonable man would have himself under arrest. Ill. ple v. 368 N.E.2d 870. Wipfler Here, the fact that the time of notwithstanding defendant’s ar- rest disputed, handcuffed, record is clear that he was not fingerprinted, charged while at the station until after his Miller grand jury before 6. Detective tes- tified that defendant “in custody” merely was but that meant “he was in the in a Miller police presence police facility.” further testified and Summerville told defendant he was free to stayed overnight leave but that defendant at the station in the inter- Regan view room. John testified that defendant was “in custody” but that that he only meant area of the station. hand,

On the other asserted he was only photo- does not cite to the record thereof. graphed support evidence Defendant also in his or cite to the record argue does brief evi- that he not free to dence his contention leave supporting house, i.e., during station to account for whereabouts failed his allege specific police barring the 27 hours or conduct his any by that his mother asked freedom to leave. Defendant also states only p.m. to see him she came to the station at 1:30 initially when denied; not allege 5 and her defendant does February request was her was de- again request that his mother asked to see him and that illegal nied 27-hour detention. alleged period over responsible provid that an is appellant It is well settled claimed; the record is in which shows the errors where ing record silent, reviewing presumption or is court will invoke the complete, court ruled or acted v. Hamilton correctly. (People that the trial 276, has 74.) clearly 64 Ill. 381 N.E.2d Defendant App. claim that he restrained. support illegally failed was enough familiar

We further observe that defendant was to enter his if had a warrant police procedure police they to ask nei he was police He further testified that at the station apartment. in previous also had nor Defendant fingerprinted. ther searched delinquency that a given fact police procedure volvement with alleged battery. him from an against stemming was filed petition 5 for a total of interrogated approxi Defendant the in in and out of during three hours which time he was mately unrebutted in of the State’s witnesses terview room. The the washroom left room to use dicates that defendant the interview never complained to eat. Defendant get something and to facilities that he grand jury in fact stated before being mistreated and were promises threats or no by police; treated well had been made police. therefore, say cannot on the we presented,

Based evidence under arrest defendant should believed reasonably have not free to leave the station. the provisions that his arrest violated argues

Defendant also failed to contact his police of the Juvenile Court Act because juvenile mother him the court as a promptly and to take before directly if not talk police first did custody. We observe even mother Mrs. Green testified by telephone, daughter after the her shortly apartment entered defendant’s “getting” her time her the spoke at that and told Act, which Secondly, 2(2) defendant. we note that section 3— juve defendant relies on as notification of the requiring parents niles, not apply pertinent part does defendant’s situation. that section provides: custody

“A law enforcement officer takes a minor into who shall, without a warrant under 3—1 if the minor is Section released, attempt notify make a reasonable immediately or for the minor’s parent person legally responsible other *** care, the minor taken into custody has been held; being where the minor is and the law enforcement offi cer shall the minor to the delay without take unnecessary nearest juvenile police designated officer for such purposes of venue or county juvenile shаll surrender minor police officer in the or offense al city village where the 37, leged to have ch. (Ill. been committed.” Rev. Stat. par. 703-2(2).)

Section above, referred to to minors who are believed applies 3— to be or who from court-ordered com delinquent escaped have (Ill. mitment or are in a Rev. Stat. injured public place. who sick discussion, Moreover, ch. our par. 1.) based on above 703— custody, we have determined that defendant was not taken into rather station on his own volition to answer police ques went addition, tions. In taken to the station on his defendant was based suspected subject involvement in four murders and therefore was courts, courts. jurisdiction of the criminal not the See juvenile 113, 481 744. People (1985), v. Visnack 135 Ill. 3d N.E.2d App. Defendant’s on is that no argument probable last this issue cause existed to arrest him on 6 because his statements February on grand jury Assistant State’s O’Donnell and before Attorney thereof, not made In day voluntarily. support were co- repeats argument physically psychologically his that he was erced into the statements as a result of his 27-hour deten- making tion during which was isolated from his and the court. family probable

Because we have determined that cause existed to ar rest defendant on we need address the voluntari February only of ness defendant’s statements on 6. “The test whether February a confession was admissible at trial is whether the met its [State] that the showing freely, voluntarily burden statement was made sort, compulsion and without or inducement of or whether any (Peo defendant’s will was overcome when he made the statement.” 391, 401, v. 145 Ill. ple 984.) Stachelek 495 N.E.2d App. determination, In this making court must consider totality statement, circumstances of the includ surrounding making threats, coercion, ing the existence of or any promises, physical length interrogation, age, intelligence, of the and the intensity experience, and condition of the defendant. court’s de physical it contrary termination will not be disturbed on review unless Stachelek, weight App. the manifest of the evidence. 145 Ill. 3d at 401.

Here, that he grand jury testimony defendant stated his re given warnings February they was 5 and that Miranda peated again grand jury hearing, po at the he admitted neither the lice nor the State’s made threats or to him Attorney any promises him, and never hit or did to scare and that anything treated him well the time he at the station house. throughout was complained being We further observe that defendant never about subjected mistreated. There is no evidence that defendant was interrogation sleep, or that he was denied food lengthy periods presented access to a washroom. Nor was affirmative evidence showing get that coercion was used to defendant to before appear officers and assistant grand jury. Additionally, various movement not re Attorneys State’s testified that defendant’s was throughout stricted that he treated well his at the stay po circumstances, considering totality lice station. In of the there fore, cannot the trial court’s determination say we against voluntary statements on 6 were the manifest of the evidence. weight the trial court foregoing, properly

In we hold that light motion to his arrest. quash denied defendant’s proved guilty beyond Defendant next that he was not argues nor accountability, guilt was his estab- reasonable doubt based grand jury lished a reasonable doubt because beyond that no other evidence. He first contends evi- was contradicted word, dence was presented encouraged House or Bobo by gesture or deed to commit any specific offenses for which he accountable, held subsequently there was no evidence House and him, Bobo revealed their true intent to and he did not actually participate in of the offenses and therefore can- specific not be held accountable.

A person legally is accountable for the of another conduct when, “[ejither offense, before or during the commission of an with the intent or promote commission, solicits, facilitate such aids, abets, agrees aid, or such other in attempts person thе plan ning or commission of the (Ill. 38, offense.” Rev. Stat. ch. par. 2.) Evidence that a defendant voluntarily attaches himself to a 5— group bent on illegal acts which are dangerous or homicidal in char acter, or which will probably or necessarily require the use of force and violence that could result taking of life makes unlawfully, him criminally liable for any wrongdoings committed by the other members of the group furtherance of the common or purpose, a natural or probable thereof, consequence though even he did not (People actively participate v. Gutierrez in the overt act itself. (1985), 136 Ill. App. 3d 483 N.E.2d 944.) Proof of a common purpose need not be supported by agreement words of but can be drawn from circumstances surrounding the commission of an act by a group. People v. St. Pierre 25 Ill. (1975), 3d App. 324 N.E.2d 226.

Here, the common purpose defendant, House and Bobo was enter illegally Rule’s apartment while he was at home to force him to turn over money he otherwise refused to pay to House. This unauthorized with the entry intended use of some force (home inva- sion) the offense which is the basis of finding defendant account- able for the other offenses committed furtherance of the purpose for the unauthorized entry. Defendant’s role in the home invasion was integral to its success and clearly he intended promote or fa- cilitate the commission of that offense by pretending buy cocaine from Rule so that House and Bobo could gain into entry the apart- ment they could otherwise not lawfully enter. Obviously defendant knew a conflict existed House, between Rule and based on the ne- cessity using him to get Rule to open the protective burglar gates, and that that conflict could result in the use of against force Rule. further

We observe that in determining whether account has ability established, been the trier of fact may consider factors such as presence defendant’s without or disapproving opposing the crime, the code continued affiliation with

commission of the close crime, failure fendants after the commission it v. Wat report anyone (People the incident confide about 7), 436 N.E.2d and the defendant’s (1982), App. son 106 Ill. 3d from App. the scene v. 127 Ill. flight (People Washington 365, 468 1285). N.E.2d case,

In the that he instant made statement initially in hallway remained in the near the front door rather than the being while the crimes committed. This apartment subsequent were grand jury statement was his before the by testimony contradicted that he had in fact in the originally apartment lied and had been pre- near the On he also he was entryway. appeal, contends that vented the had been fleeing burglar gates from scene because the time, the how- again locked and he knew of no other exit. At same ever, defendant recited in his various statements that he was close argument to the over enough money events hear with Rule girls and his later the three questioning concerning codefendants’ of to and He also able ob- money “dope” might where be hidden. Bobo the bedroom were and see girls sleeping serve enter where the Later, there tieing him them with extension cord. when up a brown in heard Bobo tell apartment, was evidence of smoke the defendant them was binding the not to because the cord girls panic extension to the enough get apart- loose for them free themselves and out of girls, pour ment. Defendant further saw House and Bobo shoot the them, find kerosene over and the we it ignite Accordingly, kerosene. incredible, court, did the trial to that defend- apparently as believe in positioned ant could have described these events had been then, in apartment. having outside the been hallway Logically burglar gates could not have been locked when he apartment, scene, fact locked when notwithstanding they fled the that from the wall. away the fire and had be tom department arrived attempt no We also observe that at time did defendant Bobo; and he remained to the actions of House disapprove oppose or then he flee the Lawndale all of crimes did only view of the crime room details game where met House discussed did not contact the him smoked sticks.” Defendant “happy the occur participation and he later denied his initially him In defendant detached rence. evidence that any absence 16 Ill. Rybka (1959), v. (see People self from the criminal enterprise the conduct 17), 2d 158 N.E.2d defendant accountable open getting initial action in Rule of House and Bobo after his burglar gates. proved he was not that argument reject similarly We his conflicts between doubt because guilty reasonable beyond of this conten- In support and other evidence. grand jury during hallway tion, he remained again argues defendant gates were burglar argue appears occurrence. He also He in the apartment. not have been locked so he therefore could Kim state- Brooks' that a conflict existed based further contends thereby apartment, men in the ment she saw two only enter the apartment. that he did not strengthening argument evidence, conflicts exist inconsistencies Where weighing credibility the trier of fact has the responsibility (Peo conflicts and inconsistencies. resolving these witnesses find, 329.) Ill. 3d 427 N.E.2d We ple (1981), App. v. Torres court, of reasons could any the trial number apparently did example, men. For why only Brooks saw two explain or focused on only of her line of vision she could have been out Bobo, contact. Similarly, House and with whom she was direct of the defendants could locked one burglar gates have been hand, do not find the leaving the On the other we upon apartment. human ex State’s improbable, unconvincing, contrary evidence Ill. (See People App. v. Scott perience. therefore, cannot 130.) light foregoing, say

N.E.2d In we is so to raise a reasonable doubt of unsatisfactory evidence as guilt. the trial erred in refus- argument

Defendant’s final is that court offenses were ing hearsay the admission of evidence as that that the testi- other he contends by persons. Specifically, committed alleged another and his Sterling implicated party Buchanon mony improp- and the court as the of the.crimes accomplice perpetrators hospi- Kim Brooks at the by excluded certain statements made erly tal which this supported theory. Illinois, declaration extra-judicial

In rule is that an general he, not the not under oath the declarant that defendant by trial, notwithstanding committed a crime is inadmissible as hearsay excep interest. An against penal declaration is the declarant’s the statement is suffi supported by tion to this rule exists where 111 Ill. 2d (1986), cient indicia of v. Bowel (People trustworthiness. can 58, of such a declaration 995.) 488 N.E.2d trustworthiness spon consideration of the statement was by be determined whether crime, cor after the the statement was shortly taneous occurred evidence, self-incriminating roborated other the statement by interest, and there was an against penal adequate and a declaration (Chambers v. for cross-examination of the declarant. opportunity 1038.) 93 S. Mississippi 35 L. Ed. 2d Ct. (1973), U.S. of the trial The admission of evidence is within the sound discretion showing clear its will not reversed absent a ruling court and be v. Bowel Ill. 2d People abuse of that discretion. N.E.2d 995. Sterling Bu- trial, proof made an offer of that

At brother, made chanon to certain statements testify would that on known as “Bodine.” Buchanon stated Jeffrey Hagans, also and asked 16,- he with Bodine and some friends January crimes,” and Bodine Bodine if he knew about the “Hamlin anything is”; off that he less over- responded you you know better “[T]he Hill, Bodine’s, a friend of tell Bodine that heard Charlie “[BJetter It that shit get everywhere. rid of the clothes because throwed [he] shoes, Bodine me, on saw got my pant, my everything”; clothes”; “You should “roll of that Hill told Bodine that have burn a in the put cause he could us build- nigger upstairs, called back to Bodine that Hill to Buchanon’s statement ing”; response did not him and the Hamlin crimes had too much influence over sense,” go way Bodine that “it didn’t responded just “make a photo- that at a later time Buchanon showed Bodine planned”; we who Buchanon learned was girlfriend, of his brother-in-law’s graph “one of the one of thе victims and Bodine said she was bitches there”; and up and that “that bitch shouldn’t have been Raynard” time Buchanon a conversation between that at another overheard that “You know Hill in which Hill remarked to Bodine Bodine and alive,” “Don’t worry to which Bodine responded, bitch still broad,” on the it, “keep in a coma” and told Hill to tabs about she “if Hill “she the one can us” and responded only identify worse, her.” go up hospital get worse come to we will as hearsay. The trial court refused admission of these statements Kim statements to Detec- also contends that Brooks’ Defendant being after taken two hours approximately tive Thomas Blomstrand i.e., testimony, she proffered Buchanon’s hospital corroborates for the incident the two men responsible identified Bodine as one of being ap- and described the other offender apartment at the Rule admis- Hill). The court refused (allegedly 5 feet 7 inches proximately falling not statements as Blomstrand’s as to these testimony sion of rule. hearsay exception under the declaration spontaneous Blom that Buchanon’s and the trial court agree We with Bodine nor Neither hearsay. strand’s was inadmissible testimony trial. cross-examination; died prior both Brooks was available his against penal would have been Although testimony Buchanon’s he statement in court making in his interest, because presumably car, the fact very a stolen stripping and smoking marijuana admitted high” initially when “getting smoking marijuana that he was to the Rule mur- references alleged Bodine’s and Hill’s overheard further observe on their trustworthiness. We ders casts doubt to Buchanon contained nothing alleged in Bodine’s statements that he Bodine the crime and no direct admission about specifics corroborating evidence was only in fact committed the offenses. The another man that he saw Bodine and Grigsby’s testimony Donald building of the apartment who was 5 feet 7 inches the stairs crimes, is not that Bodine was proof the date of but hand, defendant confessed of the crimes. On the other perpetrator to his in the incident accurate detail before participation his grand subsequently testimony and House corroborated jury, addition, Virgil Bridges In both the same detail. James Davis of- as a in the incident. Buchanon’s implicated participant it lacked not but only fered thus was uncorroborated of defend- implausibility light of its sheer trustworthiness because ant’s and House’s confessions. that Kim we contention

Similarly, reject under Brooks’ statements to Detective Blomstrand were admissible hearsay declaration to the rule. At 6:15 spontaneous exception incident, spoke Detective Joe Deases p.m. on date the Rule Her ver prior being hospital. with Kim Brooks to her taken leading corresponded sion of the events to the crimes up accounts, not iden subsequent defendant’s and House’s but she did her assailants at that time. After at the Detec tify arriving hospital, p.m. tive Blomstrand with Brooks at 8:30 Dur spoke approximately him, one of the assailants ing her interview with she stated that inches she to another offender as “Bo” or was 5 feet 7 referred acknowledged “Boo.” Blomstrand later had written name Bodine at least once in in fact Brooks had report his Bodine; apparently named one of the assailants as Blomstrand investigation. aware of the during become name Bodine

In order for a statement as a spontaneous be admissible declaration, (1) startling there must be an occurrence sufficiently statement, unreflecting produce spontaneous (2) absence fabricate, must relate to the circum (3) time to the statement v. (People Sanchez App. the occurrence. 105 Ill. stances of “is 395.) exception declaration spontaneous N.E.2d that, under certain external circum- upon experience based 20 be shock, may of nervous excitement a stress physical

stances and removes their con the reflective faculties which stills produced occurs is a trol, spontaneous the utterance which then so that already and perceptions to the actual sensations response sincerе this utterance is made under the external shock. Since produced by senses, and dur domination of the immediate and uncontrolled could not of self-interest ing the when considerations period brief reflection, utterance reasoned brought by have to bear fully been least, lacking as trustworthy (or, at may particularly be taken as the real untrustworthiness), expressing and thus as grounds usual him; just as to the facts observed speaker’s tenor of the belief People to facts.” received as those may therefore be 175, 180-81, 174 N.E.2d quoting 22 Ill. 2d v. Poland (3d 1940). ed. Wigmore, J. Evidence §1747 made at least two Here, to Blomstrand were Brooks’ statements alert, At that time she was hospital. taken to the being hours after trouble, her condition when unlike speaking without responsive leading Deases and related events she first to Detective spoke her At the not name assailants. anyone to that time but did up her assail- to reflect who least, hospital Brooks had time at Brooks’ assuming hospital ants further observe even were. We assailant admitted, she referred to one clearly had been statements “Bodine,” have “Boo,” not and could specifically as “Bo” or addition, In her statements corrobo- Bobo. referring Teddy been respects. respect in all other With rated defendant’s confession inches, this being 5 feet her of one of offenders description of defendant’s and weight light little would have carried point we find the Accordingly, confessions as discussed above. House’s the hear- refusing to admit its discretion trial court did abuse of Buchanon and Blomstrand. statements say reasons, of the circuit court foregoing judgment For the affirmed. Cook is County

Affirmed. P.J.,

LORENZ, concurs. PINCHAM, dissenting:

JUSTICE

I warrant, enter a officers, without For police I dissent. citizen, 16-year-old boy particularly American an home and arrest as the State cause probable without parents, of his in the absence cause as court, probable or with in the trial urge compelled urge diametrically inconsistently compelled the State is and volun- from his home court, juvenile take the this before appeal station in a him incommunicado detain involuntarily tarily to see the request mother’s hours, juvenile’s refuse the for over coun- and without where grand jury, child, juvenile take the before statement incriminating behalf, extracts prosecutor sel on his him and which indicts him, grand jury on which that from fla- convictions, constitute his murder evidentiary basis only cherished, re- citizen’s juvenile violations grantly egregious due rights (1) State constitutional Federal and vered and basic un- against and home secure in his law, (2) person to be process counsel, (4) seizure, to the assistance (3) search reasonable himself, against and (5) against a witness not to be compelled be of the offenses self-incrimination, notwithstanding egregiousness and sentenced charged, was convicted with the defendant which life imprisonment. Hli- of the State People reflects that appeal

The record on called meeting, a 4 p.m., at represented nois were or a in fact a witness was fact whether Mr. Green “to discuss the at by in that apartment,” that occurred in the murders participant Assistant talent and experience, of considerable lawyers least four Quinn, Tom Brennan Demback, Timothy Dennis Attorneys State’s addition, and power O’Donnell, had, majesty who and John Ar- collective elbow. at their literally of a authority grand jury uncounseled, unad- one talent power all this against rayed in police continuous hours had spent who 16-year-old boy vised time to during the request had been denied and who custody access had denied lad been young The fact that this see his mother. mind at the defendant’s upon family obviously preyed to his night be- the grand jury he testified at because grand jury Attorney State’s to an assistant a statement given fore had that statement con- and that station reporter a court before this statement prior about being questioned After tained lies. then occurred: following grand jury grand O’Donnell Attorney Assistant State’s “Q. (by today? the truth telling you’re And now jury) A. Yes. today? the truth telling are

Q. Why you my family.” with (Emphasis I want to be A. Because added.) answer,

This that he telling the truth at the grand jury “be- cause I want my family” to be with (emphasis аdded) from a 16- year-old circumstances, under these boy, is a prima indication facie that his. testimony been coerced. Something happened while the defendant was in police which caused him custody change his story homicides, with respect and it related to his obviously deprivation from his From the family. totality of the hereinafter mentioned facts circumstances, the later set forth Assistant State’s Attorney John regarding O’Donnell he took why the defendant before the grand and the jury defendant’s answer be- fore grand jury, “because I want to my be with family,” (empha- sis added) it is quite apparent to me that the defendant was of the frame of mind that because of and upon the conclusion of grand his jury testimony he would be allowed return home to his family.

His answer at least grand troubled one juror, who asked the defendant:

“A JUROR: He made a statement that he want to be [sic] family. you Will explain what he meant what he want family to bewith his or how is this working? [sic]

MR. Charles, O’DONNELL: did tell me you that the rea- son you’re telling the truth you is because wanted to protect your family?

A. Yes.

Q. Is that the reason why you’re telling the truth today? A. Yes.

Q. IHave made any promises you?

A. No.

Q. IHave made threats to any you?

A. No.

A you JUROR: How did find Charles?

MR. I O’DONNELL: couldn’t tell that. you A JUROR: He came? just investigation.

MR. O’DONNELL: There was a police picked Charles was as a result up police investiga- of tion.” (Emphasis added.) Thus, when the asked about the juror wanting defendant “to be with his Assistant State’s family” Attorney O’Donnell diverted the of grand trajectory juror’s question by suggesting defendant “wanted to his protect” family. (Emphasis added.) defendant’s desire “to family,” be with his the words of the defend- ant and grand and “to his of juror, protect family,” (the words O’Donnell), Assistant State’s which are not the same Attorney thing. (Emphasis added.) grand O’Donnell’s zeal before the Attorney

Assistant State’s immediately possible extricate himself from accusation jury any grand juror after the skullduggery glaringly apparent. Promptly is explain asked him to meant when he said that what the defendant he had testified before the to he with grand jury because wanted family, his O’Donnell’s sidetracking redirecting successfiil and it, statement the grand juror’s inquiry about defendant, / hastily O’Donnell asked the any promise “Have made and, I you?” (Emphasis “Have made threats any you?” I added.) find it this astute extremely significant experienced prosecutor did not likewise minor if ask this other any or prosecutor law any made to him promises enforcement officer him, or had threatened in order to also eliminate possible charges chicanery against them. that,

It noteworthy according is indeed to the grand jury testi- mony Green, of the defendant Charles simply decoy who persuaded Raynard burglar Rule open gates to enable Derrick House Teddy to gain Bobo entrance into the apartment, where House and actually murders, Bobo committed the four atrocious which the defendant Charles Green not actually actively did par- ticipate. Thus, best, defendant Charles Green was ac- merely cessory only murders, for the accountable while House and offenders, Bobo were the principal and all charged three were Yet, reflects, indictment with the murders. the record Bobo Teddy was not prosecuted because, for the murders on motion of the State, the trial court nol-prossed against him, indictment whereas, in a trial bench severed from the trial of the defendant Green, Charles Derrick House was found guilty murders and sentenced to death, death. Derrick House’s being sentence his ap- peal directly pending and is now before court of supreme Illinois. From the entire us it appeal, record before could be ar- gued with a great degree persuasion that the law enforcement of- ficers’ defendant, Green, interactions with the were initially Charles designed to coerce him into being against Derrick witness House Bobo, Teddy failed, and when that for reasons do not ap- which pear, prosecuted the law enforcement officers then the defendant for the crimes and used his illegally grand obtained jury testimony convict, the evidence to him.

It borne out State’s clearly Assistant John Attorney O’Donnell’s hearing the defendant’s motion to suppress grand testimony: jury Mr. Green Prior

“Q. counsel) testifying defense (By him, front of the Grand had Jury, you spoken you not? Yes,

A. sir. Q. And talked with him he in faсt you everything about to in of the Grand that correct? Jury; testified front is Yes, A. sir.

Q. nothing He told new in front of the Grand you Jury; that correct? No,

A. sir. Q. he tell in front of the you Jury? What did new Grand anything A. He didn’t tell me new in the Grand front of Jury.” (Emphasis added.) needed, if that this scheme was delib- proof,

The final were from Assistant State’s O’Don- Attorney erate and came purposeful later at the trial when the denouement of the strat- testimony nell’s was revealed: agem Now, did Mr. Green in the Grand why you put “Q. front of him?

Jury you interviewed after waiting I was for a A. There were two reasons. One was well, I that is not a reason but officer youth time — late for a officer. The officer was waiting youth youth Jury late. It was time that Grand and the time was in the Grand because we believed —ive leaving. Jury I him put was in whether Mr. Green to discuss going fact fact the murders that occurred a witness or a participant apartment. fact, O’Donnell, to com- Q. you it not a Mr. wanted Is charging in front of a writing mit Mr. Green’s the Grand authority, Jury? writing since his statement to in be in A. I wanted effect the night inconsistent statement given, prior

he had before. that, in to do a court Q. brought reporter could have You couldn’t you? reporter, yes. in a court brought I have

A. could * * * have testified to O’Donnell, you these events Q. Mr. is that ago, 11 months approximately took place today here correct? correct.

A. That’s for han- responsible been you cases have Q. many How months? in those 11 dling

A. I have responsible been few cases. quite Q. Hundreds? Well, for,

A. it what mean depends you responsible you whether mean trial or for responsible for responsibility putting someone the Grand Jury. before

Q. indictments, informations, How many investigations, charges or ‍‌​‌‌​‌‌​‌‌‌‌​‌‌‌‌‌​‌‌​​​​‌​​‌‌‌​​​​‌‌‌‌‌‌‌​‌​‌​‌‍the like in the complaints, you have handled last 11 months?

A. I have of been for hundreds cases probably responsible only motions. This was one for trial or probably cases of I put Jury.” Grand fact before (Emphasis added.)

I first, am impelled comment, briefly upon the horrible state of the on court, record filed in appeal, and, second, this upon the grossly inadequate and incompetent performance of defendant’s counsel. to the

According record, common law there heard on the to quash motion arrest and to on suppress evidence January 7, 8 10, 1986, and 13, 1986, and on January the court denied the 17, motions. January 1986, On the defendant’s bench trial com- menced. Testimony 21, was heard on 22, 23, 24, thereafter January 27, 28, 1986; 29, closing argument 31, was heard on January 1986, 4, and on 1986, February the trial found court the defendant guilty. The appeal record on does not of proceedings any report contain all for 27. January The of report proceedings 31, for January 1986, is physically inserted between the of reports 1, for proceedings April 1986, 4, February As 21, 23, 1986. to the January 24 and 29 dates, trial the report of proceedings contains only partial or “ex- cerpted” and, trial proceedings there is no of naturally, way know- ing the importance relative or of unimportance missing pro- trial ceedings. addition, In the report of proceedings (“excerpted” otherwise) is in nonsequential bound example, misorder. For Volume begins I 1986, with the report 7, of for proceedings May followed by 7, 1986, January next, 17, followed by January 1986. One must Record,” (Volume III), “Supplemental refer to the another volume 8, 9, 10, for January intervening report proceedings for the report I for then back Volume only), and (excerpted 13 (excerpts January (excerpts only), January for proceedings One then 28, 1986. January only), (excerpts only), January 29, 1986, and of January II for proceedings Volume proceeds the for III) Record” (Volume “Supplemental to the returns the same court, only to find that trial findings guilty on sentencing proceeding III into Volume inserted appears after contains addition, nowhere appeal In record 1986. April evidence, to suppress arrest and quash the defendant’s motion reliance in which the defendant places primary matter very upon are most of the missing in this court. Likewise his brief for reversal sup- of the motion to hearing admitted into evidence on exhibits ruling the trial court in thereon. and considered press Now, appeal none of the of the record certainly insufficiency teenager peniten personally, to the defendant is attributable coun exclusively rely upon appointed compelled and who tiary that it is (179 App. 12) out Ill. majority points sel on appeal. with a counsel to the court appellant’s provide responsibility may accurately appeal record on so we complete orderly True. But public. and to the obligations parties our discharge court, not on this serve obligation create rightly this should It is our to see duty to affirm a conviction. an excuse this court ful counsel are appellant’s properly it obligations deter to render a decision which are in this case required filled. We defendant, are life of the and we of the entire mines remainder and awesome to make this serious own counsel asked defendant’s excerpted proceed partial transcripts, of determination on basis dere this constitutes my judgment, documents. In ings, missing and gross in its counsel by defendant’s duty incompetence liction of and form. est and rawest is, my judg- addition, on of defendant

In the brief filed behalf instance, the brief For ment, disorganized. woefully inadequate v. New Payton little abandons pertinent testimony, cites very 1371, issue 639, S. Ct. 573, 63 L. Ed. 2d 100 445 U.S. (1980), York out the below, fails to point the defendant relied specifically upon by findings and of the trial court’s and contradictions utter confusion pays hearing, quash suppress at the motion conclusions eliciting the State’s self-incrimi- of propriety scant heed arrestee before juvenile from an uncounseled nating testimony him, the State’s indicted subsequently same which grand jury to con- trial at the defendant’s testimony of that same introduction brief addition, 52-page of defendant’s one-third nearly him. In vict testimony defendant’s before quote through 17), purports 2 (pages However, of 6, transcript 1985. on grand jury was introduced grand which jury before the defendant’s of part 27 is not a exhibit No. People’s trial as at the into evidence of determin- no way court therefore has This appeal. the record on or is accurate in the defendant’s brief quotation ing whether 27 for two short complete. Except paragraphs preceding and one grand jury paragraph short supposed testimony, defendant’s it, consti- following supposed grand jury testimony the defendant’s the entire “Statement tutes of Facts” defendant’s brief. Moreover, at least filed no re- important, equally thereby bring- brief in this court and thus from ply totally abstained ing to attention the of motion misrepresentations this court’s certain the State in its suppress testimony upon by set forth and relied brief, position a impropriety urging well as State’s this court the State in the trial exactly urged to that which contrary court.

It appeal is now established that a defendant on direct has well sixth guarantee amendment constitutional counsel on competent appeal. (Penson v. Ohio _, 488 (1988), 300, U.S. 102 L. Ed. 2d Wisconson, 346; McCoy v. Court Appeals 109 S. Ct. District 1 429, (1988), 440, 486 100 Ed. Evitts v. 1895; U.S. L. 2d 108 S. Ct. Lucey (1985), 469 U.S. 83 L. Ed. 2d 105 S. Ct. It 830.) is also now well that an established court has appellate independent constitutional obligation to examine the record on for com appeal pleteness and a criminal defendant’s for competence brief counsel (Penson Ohio, v. appeal. _, U.S. L. Ed. 2d Ct. 346.) S. This see, court been e.g., has repeatedly admonished — People v. White 228; Ill. United States ex rel. Thomas v. O’Leary (7th 1988), Cir. 856 F.2d 1011—that a decision by this court adverse to criminal defendant without a brief having filed been behalf such defendant violates sixth amendment right counsel. no Surely different rule prevails where the defendant’s counsel files an inadequate longer brief. No is a court of permitted review sweep a defense counsel’s defective representations rug under the with a is rationalization: “It well set tled that an appellant responsible providing a record which claimed; shows the errors the record is where incomplete, is si lent, reviewing court presumption will invoke the the trial court ruled or acted correctly.” (179 App. 12.) Ill. 3d at The sixth (cid:127) amendment makes no distinction appointed between and retained McCoy Wisconsin, v. Court counsel. 1 In Appeals District of of (1988), 486 U.S. 100 L. Ed. 2d 108 S. Justice Ct. recently stated for the court: Stеvens same professional respon- essentially advocate has

“Every a retainer from a paying whether he she accepted or sibility an from appointment appellate lawyer client or a court. record, law, thoroughly must research master trial 28 may arguments in identifying exercise judgment

and case, evaluating In appeal. preparing be advanced on success, for to the advising prospects the client as the client’s interest serve consistently counsel must at_, L. Ed. 2d at ability.” of his or her U.S. best 453,108 S. Ct. at 1902. her client precisely still his or provide

“The must attorney from paid could obtain that an affluent defendant services and a discussion of review of the record thorough counsel —a searching that review. In arguments revealed strongest available, must attorney be strongest arguments for the legal ambiguous ques- all zealous and must resolve doubts at_, L. or her client.” 486 U.S. tions in favor of his 457,108 at 1905. Ed. 2d at S. Ct. ap life simply because imprisoned

No citizen should be or at appeal, either at trial or on pointed incompetent, counsel was indigent it counsel for appoints the State of Elinois both. When minimum standards. certain possesses warrantees the counsel That following: at least standards should include These minimum accurate and se (1) a complete, counsel file in the court of review original and accurate (2) complete of quential report proceedings; court; (3) in the trial state motions filed of all relevant copy ap court and not raised on issues the trial litigated ment all these issues why explaining with a short statement peal, together in accordance a brief filed (4) raised on appeal; have been court then will conscientious supreme Only with the court rules. amendment the defendant’s sixth able to assure itself review be the fourteenth amend competent representation guarantee guarantees ment to due process law and the equal protection of laws, as well as the corresponding State guaran constitutional tees, have been fully enforced as to the humblest citizen convicted of even the most heinous crimes. As Mr. Justice Brennan ex recently plained for the Court in Kimmelman v. Morrison U.S. 365, 379-80, 91 L. 305, 322,106 Ed. 2d S. Ct. 2585-86: ‘ “While we recognized have “premise of our adver- *** *** sary system of criminal justice that partisan advocacy

will promote best the ultimate objective that the guilty be ’ convicted and the go innocent free” underlies and [citations] gives meaning right effective [citation], assistance we have never intimated that right counsel is condi- tioned upon actual innocence. The rights constitutional criminal defendants are granted to the innocent and the guilty

29 the guaran- we decline to hold either Consequently, alike. of to the in- belongs solely tee of effective assistance counsel only affecting nocent or that it attaches to matters deter- of actual guilt.” mination minimum,

At a bar, court in the case at this should new appoint counsel for the defendant and order that he or she furnish appellate and accurate record on complete, sequential, appeal this court and the should further directed to file new counsel be new briefs. this term in Penson v. Ohio The has Supreme just Court _, _, 300, 311-12, 346, 352, U.S. S. 102 L. Ed. Ct. cautioned, directly applicable in words to this cause:

“The need for forceful does not come to an advocacy abrupt from the trial legal proceeding appellate halt as moves Both stage. stages although in- prosecution, perhaps skills, volving legal careful to ensure unique require advocacy rights foregone legal are not and that substantial *** factual are not arguments inadvertently passed over. to decide the merits of By proceeding petitioner’s appeal him, appointing without new counsel the Ohio represent Appeals deprived petitioner Court both and itself of the of an adversary presentation benefit examination and of the issues.”

However, the majority because in the case at has ostensibly bar elected to to the merits proceed despite the incompleteness record on appeal brief, I, too, аnd an defendant’s inadequate by merits, compulsion, dissent; so, reach the I doing and in touch upon some issues inadequately addressed own coun- defendant’s sel.

II The events which unfolded in the court present highly below unusual set of circumstances. I will Though review at testimony detail, quash motion to suppress brief introductory overview of that will helpful understanding be the is- undisputed sues. The testimony below reveals that on January 1985, Rule, bodies three deceased Lauren persons, Raynard Rule, Brooks, and Yvonne in a smoldering found apartment Hamlin, Chicago. North The victims had gagged been and their hands were tied behind their Raynard backs. Rule had been stabbed victim, and the two women had been shot. A fourth Kim Brooks, connected died of from fire subsequently bums with the same later, 5, 1985, incident. Three weeks on February during the day- light hours at least Chicago police detectives, two John Sommerville Clemmons, and James entered the defendant’s home located at 846 Hamlin, North Chicago. detectives had no warrant enter home or to arrest Present anyone. defendant’s home were the sister, Gloria Thompson, baby, Gloria’s and three teen- age Thomas, boys, Green, defendant, Willie Terry Charles Green, age 16. There may have been one or two additional family present, members but no adult and neither parent the defendant was present. The detectives took the defendant from his home to the police station, where he was repeatedly questioned different by officers and an assistant State’s Attorney. during Sometime the eve- 5, ning 1985, the February mother, Green, defendant’s Viola went to the station and asked see her son her request was denied. Her minor son was in kept the station all night and most of the next day, 6, February 6, 1985. On the afternoon of February 1985, the defendant was by police driven officers to the Cook County criminal court building California, at 26th and in Chicago, and about 4 p.m. he was taken grand before Cook County jury, where he was questioned Assistant State’s by Attorney John O’Donnell. Assistant State’s Attorney O’Donnell advised the defend- Miranda ant of his rights before the grand jury; the defendant ac- knowledged them and subsequently gave self-incriminating answers to questions to him put Assistant State’s by O’Donnell. Attorney The same grand jury subsequently indicted the defendant for the murders. trial,

Prior the defendant moved to his arrest and to quash suppress grand his jury and the trial court took testimony, extensive on those Thereafter, motions. the assistant State’s Attor- argued to the ney trial court that grand defendant’s testi- jury defendant had not been mony was admissible at trial because placed under arrest or in until custody given grand he had his after jury self-incriminating That testimony. say, argued is to the State voluntarily that 5, the defendant left his home on February that he had vol- Clemmons, with Detectives Sommerville and untarily stayed the police station the remainder of that and day, the defendant also voluntar- 5, 1985, all the night February ily stayed station, all the next day, February had voluntarily and that grand defendant testified before the jury. Conversely, argued the defense defendant’s arrest oc- 5, 1985, curred in his home on in- constitutionally and was cause; valid on grounds: (1) two because it was without probable (2) because of the officer’s into the defendant’s warrantless entry Thus, court, home. the trial the State and the defendant both AGREED THAT THERE TO AR- WAS NO PROBABLE CAUSE REST Despite THE DEFENDANT ON FEBRUARY 1985. vociferous sides that at the time the detectives went urgings both from his home to defendant’s home took defendant police station, consent, whether under arrest or there was no probable him, to arrest judge cause the trial nevertheless found that detectives had to arrest probable cause defendant de- nied the motion the defendant’s arrest and quash suppress evi- ground. dence on that

The defendant to trial right by jury waived cause trial, proceeded to bench during grand which the jury testimony was admitted as evidence against him. The trial court convicted the defendant the murders and sentenced him an im- prisonment court, term of natural life. On defendant’s this appeal to the State has dramatically original reversed its trial position court and now conversely argues, time, (1) for first arrested his home (2) there was cause probable the defendant’s arrest.

I am mindful that the defendant has been сonvicted of extremely brutal and hideous hand, crimes. On the other the defendant is a 16- year-old boy sentenced life imprisonment evidence in- clearly sufficient to convict him for for his own uncounseled testimony, be- grand fore the him, same which jury indicted elicited him from after he in had been police continuous custody over hours. Because I firmly applicable believe that the binding and relevant constitutional and provisions, them, and the case statutory law de- interpreting mand the legal (1) determinations that the arrest defendant’s was not supported by probable (2) cause and the defendant’s uncounseled statements grand before the him jury which indicted were the prod- of illegal uct the in defendant’s arrest and of derogation were his fourth, fifth, guarantees sixth, under the and fourteenth amend- States, ments to the of Constitution the as United well various I statutory provisions, dissent. of are underlying facts this case and complicated should

have been utilized this court as a basis for the of by application le gal facts, to the principles ordinary those as in modus for opercmdi Instead, courts of review. the a decision majority has rendered soipe which is from the disparate trial at variance of testimony, with the trial court’s specific findings rulings, and even inconsistent instance, within itself. For the Ill. 3d at majority says (179 10) App. the that in home legally was arrested and taken to station, the 13), majority later Ill. 3d at (179 App. the rea say cannot that defendant should have conversely states: “[W]e he free the sta was under arrest and not to leave sonably believed it to tion.” If wasn’t reasonable for the defendant believe Query: arrest, then it for trial to was under reasonable the court why find that he was? in re- majority opinion

The internal inconsistencies the have (1) the reasons: the trial sulted, part, following in from at least shown; re- (2) the the testimony confusion as to what court’s court, to make clear and concise requested, fusal of the trial when fact; of the State (3) diametrically positions of findings contrary vis-a-vis its in court on the of trial this issue position court in Detective Summerville’s cause; (4) the probable misrepresentations brief; (5) ap- the failure defendant’s testimony the State’s counsel, appointed who was also the defendant’s appellate pointed counsel, record complete this court a full and provide trial to to thor- appellate the failure defendant’s counsel appeal; (6) defendant’s cause defendant’s clearly advocate the oughly determine all court; this of the trial court (7) brief in failure apparently presented motion it the defendant’s issues to af- (8) majority a determination quash suppress; rea- no inconsistent firm conviction matter how this defendant’s reasons, it is For all of to reach that result. these soning employed applica- the facts and a correct appraisal necessary an accurate testimony rendition of the thorough tion that a law be set suppress arrest and evidence motion to the defendant’s quash forth. the prosecut- it noted that this evidence should be reviewing

In court that before trial contending ing attorneys uniquely arrest, that the of- no cause for defendant’s probable there was in his home on not arrest the defendant ficers did accompanied voluntarily not under arrest but the defendant was station, remained voluntarily where the officers to hours, urge prosecutors enable the un- statement incriminating grand jury uncounseled subsequent It the defendant. against as trial evidence admissible constitutionally quash suppress reviewing the motion to noted in should also be there defendant also contended and evidence arrest, but, conversely for the defendant probable was no cause his in home the quadru- the officers arrested him his for contended that ' murders, him the where he held police station was pie transported which, hours, after counsel for 27 without custody in incommunicado taken the gave incriminating grand was an statement before per- secure in rights in violation of his constitutional be his jury, seizure, self- against son and home against unreasonable search аnd himself, against incrimination and witness compulsion being the to counsel and to due process law.

THE THE TESTIMONY MOTIONS TO AND SUPPRESS ON QUASH CHARLES GREEN—Direct Examination 5, 1985,

He is the morning Defendant. On the hours he home his was at his at 846 North Hamlin babysitting niece brother, Green, Present his LaToya Miller. was his Terry cousin, Thomas, sister, At Willie his Gloria Thompson. about 11:30 a.m. Gloria was about to take the the baby to doctor, it, and when she walked to door and the opened police rushed in.

He standing was beside his when policemen sister three came guns in with their drawn. police walking The started searching around and no war- apartment they had rant. police remained in the half apartment about a hour, and when he if they asked had a warrant police told him they to “shut up.”

The police told him that “they had take me in” and left the apartment with the police. He did not leave voluntar- ily. him, Prior to leaving apartment handcuffed took him the police car, outside to him in placed the police car, and took him to the station.

At the station took they him into room take but did not off; handcuffs he remained in room for five four or hours. No ever policeman go told him he could home. Cross-Examination

Terry Green is Willie Thomas 18. Gloria was her was 1. No other relative was in baby apartment. When the police came he was in the front room. When police came did not themselves as they identify policemen. The front door to not apartment damaged by po- lice. He three policemen did not know names of the who came into through The first one walked apartment. the door at his pointed weapon face.

He did not tell the his name Charles Green that he went the nickname of Charles. He Little did apartment. in the police identification to the

show him, handcuffed his handcuffing they also In addition to and cousin, took Green Terry his and the police and brother take too. did not They to the station police Willie Thomas him all three and His hands were handcuffed behind Gloria. him he car. The told was police police taken in the same were him he under arrest not tell what was trader arrest but did for. he left call before telephone

He not allowed to make he left call mother before and he did not his apartment if He had warrant. police they asked apartment. he taken to the station was handcuffed police After he was police the entire time he was in the station. to the wall for his cousin Willie Terry He not see his Green or did brother police he at the station. Thomas while was Examination THOMPSON—Direct GLORIA ANNE 846 North Hamlin and she lived at On February Green. On of the defendant Charles is the sister she to take her going baby 11 a.m. she was at about Charles, Willie Terry, home were the doctor. Present Thomas, and her small sister Glendora. doctor and went go dressed to baby

As she got at the it officers was open police “some the door [sic] she the officers knock and when did not hear door.” She telling her them came in without the door the officers opened one had three of them and come in. There were could they search war- officers if had a they She asked the gun out. I asked them whenever up “told me to shut they rant and something.” the one with around” and looking “just

Two officers were “in the room and was into back hair went blond I asked all and place, clothes over drawers, throwing just he didn’t need warrant, and he said a search him did he have no search warrant.” her get going upstairs that she was told the officer

She they tell him what to her uncle and could talk they uncle so the officer leaving doorway wanted, and as she was the front door and me at me, stopped “came behind waist, me, my around his hands putpng] me (by) searched upstairs me.” She then went legs and searched my and down there, and he wasn’t her uncle’s door but and knocked brought she to her her then went downstairs aunt’s house upstairs. Gloria came all three officers upstairs

When back still apartment, talking were and two them were her brother her They cousin. stayed apartment about to 30 minutes.

During the time the in the apartment she called her spoke mother’s to her mother. No one else job spoke talking mother, to her mother. When the po- she to her lice officer are kept saying “yоu lying, lying,” are you she tried to give accepted the officer the phone never to talk to phone her mother.

The police Charles, officers then left apartment Willie, Terry, prior leaving they handcuffed them. The officers they taking said were them to the station. showed her no They search warrant arrest warrant. Cross-Examination

She heard no knock at the door before it. All opened she three officers came in at one time. She additional saw police officers outside the apartment. One his gun officer had out and it pointed him; was front of the officers did not identify themselves as police officers or show any identifica- tion.

The police were in the for 20 apartment minutes. Charles Green did not speak to his mother the phone on when she called their mother and she spoke her mother for about two or three minutes. Green,

Charles Green Terry and Willie Thomas were hand- cuffed together not Her separately. brother defendant is Charles, not known as Little he has never been known by that name.

It was then stipulated parties between the the defendant made certain statements he after was taken to the police station which the Police intended against to introduce evidence defendant The trial. then rested on the motion to quash evidence, arrest suppress People and the called the following witnesses. SUMMERVILLE —Direct

JOHN Examination assigned

He a detective Area Violent Crimes. On 12, 1985, January investigation became involved of a North Hamlin Ave- homicide which occurred at 458 quadruple 3, 1985, he to that investigation, nue. Pursuant home at Area 4. Davis first at his and later spoke James Capesius. Present Detective was him at January game- told that on 11 he was

James Davis gameroom at Lawndale. at the he saw room 750 North While argu- Derrick House in a verbal Raynard engage Rule and money. argument The “es- gameroom ment outside the about fistfight getting calated” into a Rule better Raynard The in front of several fight place peo- of Derrick House. took friend. girl Derrick House’s ple, including at a.m. James Davis said following day, January gameroom that he man named Ghost. the same with a House gameroom, Derrick and Charles Green While going “peep” Raynard, came in and told Ghost were they to look for they going which Davis meant explained him. gameroom, 12:30 returning

Davis then left about where Derrick House returned with Charles Green remained until boy named p.m. present, about 6 At time Ghost was remark, Derrick made the “We Virgil present, also burnt, them, them, them, we got just we we got got just we Raynard.” burnt into room of the

Davis also said that went the back they House a .45 gameroom, where Derrick removed silver- same from Charles Green had a blue- handgun colored his waist. Davis did not know what caliber. Davis also handgun steel Davis said that Virgil handgun. stated .38 caliber and began began smoking to make small talk then they in PCP. sticks,” marijuana are Davis “happy dipped which related, and were Virgil he that Little Charles said believed they were cousins. Davis, Detective Sum- James After his conversation with School, Virgil identified High where “we merville went to Orr Virgil Bridges then to spoke Virgil Bridges.” Summerville later at Area 4 at home and then on first his February Present was Detective Ca- morning. to 11 in about 10:30 pesius. cousin, his Charles was

Bridges told them Little he them Charles Green, and gave name Charles his was Green’s address. p.m. 12 at 7:30 he January told them that on

Virgil Bridges and Hamlin where neighborhood Chicago took a bus to the him met Charles on the and Charles told Green sidewalk that he asked something wrong. Virgil had done said that he he had Charles he “did stated that wrong” what and Charles gone got someone else and up dope house with Raynard’s After were Raynard burglar gates open gates. open, things supposed that were not happened happen. conversation, After this and Virgil gameroom went overheard a conversation between and Derrick House Charles about ad- opening burglar gates. Virgil Bridges gave dress of Charles Green as 846 North Hamlin. at 1

Detective Summerville went there on p.m. At that time he did not Charles looked know what Green like. Clemmons, He accompanied was James by Detective no other were at policemen the address.

When he got to the second floor he knocked building and a woman He them- answered. and Clemmons identified selves as Chicago police officers asked if Green Charles lived at the Then, if apartment, yes. she said “we asked him, we could speak apart- with and we were allowed into the ment.” No gain force used to was entrance. Neither detective displayed his handgun.

He saw Charles Green in apartment and asked who was and Charles then Green identified himself. Charles Green got some school identification it and picture with showed it to him. He told Green Charles wanted to ask him some “if he questions, asked him would come us.” Charles Green said that he wanted call first, his mother dressed, and that he get would have to and he was mother get speak allowed dressed and to his over the for a of minutes. He not hand- telephone couple cuffed at that time.

Summerville Charles ride to sta- gave Green “a tion.” Charles Green was not handcuffed in the police car the other were not occupants apartment taken to police station. No handcuffs were occu- placed any other pant apartment. apartment rooms of searched by detective, either nor Charles Green searched while in the was in the apartment. apartment Summerville “maybe 15 minutes.” Harrison,

Charles Green was taken to Area 3151 W. second floor to interview room. He was not handcuffed “booked,” nor he nor was he nor was he was fingerprinted, searched. on Sunday,

The conversation with James Davis had occurred 3, 1985, and At February present Capesius. was Detective time James Davis told them that he would rather not mother, talk in front of his that he had information re- but garding being homicides which were then investi- multiple gated.

Cross-Examination Davis,

When he had the conversation with James James Davis to his from a wound. James injury leg gunshot had he Davis referred to Charles Green as Little Charles but didn’t know Charles’ last name. He but he gave description at the description important did not remember it. The time “I don’t moment.” (it) but remember this nor writing

James Davis’ statement was not reduced to to, affirm, Davis asked to “attest or otherwise affix his sign, as to of what it was.” signature (my) statement version He not his conversation with Davis. He any did make notes of if Capesius any Bridges Bridges “sure.” At Area he interviewed responded presence Capesius. in the of Detective The took interview hour, a half about and “several hours after that we went to Charles Green’s house.” was Virgil Bridges go free However, at Bridges home time. Area 4 remained at “probably couple hours.” present 5, 1985,

He was not at 7:10 when February p.m. Bridges gave statement. did a statement Bridges give prior p.m. 7:10 He not February about 10 a.m. did see Bridges sign any statement but after he left Bridges a.m. he next saw him when brought he him into the room with Charles Green between 1:30 and when p.m., Bridges handcuffed, was the interview he room was neither and he nor Detective struck him. Capesius

It was after he took Virgil Bridges the statement from he went to 846 Hamlin North on February 1985. James Davis did not know Charles’ last name at the time he went the home of Charles Green. Davis never identified photo- of Charles as graphs Green “Little being Charles.” He asked for Virgil Bridges a description Green, Charles but did not write that description down.

He had seen an report Green, arrest of Charles recog- nized Defendant Green’s No. 2 Exhibit for identification as that arrest report. arrest contains the report date ar- rest in box 32 as 5, 1985, and it the time contains hours, as 1300 which 1 p.m. He did not know prepared who the arrest report. Detective go Miller did not to 846 North Hamlin 5, 1985, on February was name listed report arrest because “he be would the one who did arrest Charles Green.” building

When arrived at the he and Officer Clemmons walked up to floor second on the knocked door. The door was opened female, aby were all near “they *** door everybody sitting dining He room.” Clemmons identified being themselves officers and if asked the female Charles apartment. Green lived at the Green, In apartment males, was Charles other two two women, and some small He children. asked who was Charles Green and when someone responded he asked identifica- who was Charles “so we could know subjects

tion from all Grеen.” he identified identification persons produced

All three Charles. to him?

“Q. you say didWhat 4. to Area him if he would come A. We asked Q. he respond? What did

A. Yes. Area 4? him to togo tell him wanted

Q. why you Did you him investigation. it was for an A. I we told believe to Area 4? Q. go tell him he didn’t have Did you Yes, sir, that. A. he knew go have to that he didn’t

Q. tell Mr. Green you did When to Area 4? you talking telephone. I on the A. When you person tell Q. you tell him or did you Did talking telephone? to on the were to me. next standing right They

A. I told them both. time? at the same to Q. talking people both you Were At sir. point, yes, A. telephone? on the with

Q. speak Who did you A. His mother. mother? know it was his

Q. you How do me his mother. A. She told she was Q. know her name? Do you No,

A. sir. phone? her on the Q. did tell you What had some We to talk to Charles. her wanted A. I told we investigation, him regarding ask we wanted questions arrest. that he was not under her else?

Q. anything Did tell you be, Area 4. he would A. Where else? tell her Q. you anything Did think so.” A. I don’t in- than rather station police to the Green

He took Charles somebody to interview it is hard him at home because terview five or six in the presence murder a quadruple about in the apartment male individuals other friends. two their not know He did Crimes. Area 4 Violent not taken to them. recognize he nor would names flat, he was a Green’s to Charles Now, went “Q. you when he not? suspect, No, Green only

A. sir. He had been told Charles had murders, ‘knowledge’ of the he did something ‘that had ” wrong, got Raynard open gates.’ and palm He did have Charles Green’s fingerprints prints when he at Area 4 to with compare taken arrived gas those that were found on can at North prints Hamlin on 1985. January He interviewed Charles Green arriving within minutes of at Area 4.

Examination the court: Officer,

“THE you COURT: when arrest Green did Charles for these murders?

A. He was after placed under arrest he came back from the Grand Jury.”

Redirect Examination

Detective Miller arrested Charles Green after he came back from grand jury.

JAMES CLEMMONS —Direct Examination assigned

He is a detective to Area 4. On February he accompanied Detective Summerville 846 North Hamlin at 1 p.m. They floor, went to the door; second on the knocked the door was opened by a young adult. them- They identified selves Chicago requested speak officers and Charles Green. They were admitted into apartment. “There were a subjects sitting number the table.” They asked the three subjects they male if them- identify would selves and said had come they speak Green. Charles Charles Green himself, identified him if they “asked into would come Area for an interview.” were in the They “no apartment more than 15 minutes.” Charles Green was transported station and he only person was the taken to the station. When Charles Green taken was station “he was not handcuffed or in way restrained.” any Green

Charles had conversation with phone his left person mother before they apartment. door opened the to the detectives was female. Cross-Examination

Defendant’s No. 2 to be a of an ar- “appears copy exhibit pre- who rest for Charles Green.” He did know report 56 on the it, his name one of the names in box pared was the arrest to report Box 32 of the arrest states have report. 5, 1985, time p.m. occurred on at 1 That February that he first (and Summerville) apartment went the address of report Charles Box 5 of the arrest has Green. Hamlin, Apartment being arrest as 846 North 2. The the I.R. Mr. report arrest shows that number stated 731781. De- Green is contained in box 20 be it booking placed tective said officer “probably Clemmons there.”

Examination the court:

“Q. Officer, this at time that you any did ‍‌​‌‌​‌‌​‌‌‌‌​‌‌‌‌‌​‌‌​​​​‌​​‌‌‌​​​​‌‌‌‌‌‌‌​‌​‌​‌‍advise defendant he was arrest? under No,

A. I did not. sir Q. at advise this presence anytime Did anyone your that he was under arrest? No, A. sir.” MILLER—Direct Examination

MICHAEL Crimes. He was in- assigned He was to Area Violent oc- in an of a homicide which investigation multiple volved 12, 1985, at 458 North p.m. curred on at 5:45 January Rule, Avenue, The victims were Chicago. Raynard Hamlin Brooks, Kim The manner Rule, Lauren Yvonne Brooks. and the manner of stabbing, of death of Rule was Raynard gunshot death Lauren and Yvonne Brooks was Rule 5, 1985, Kim on February The condition of Brooks wound. .45 caliber He was two was that she was aware dying. 459 North from casings had been recovered spent shell 5, 1985, there been Hamlin prior February 12,1985. gates apartment January some at that burglary in an in- 5, 1985, Charles Green spoke On with p.m. him at 4. He first saw 1:30 terview room Area Summеrville. him in Detective spoke presence with Green, was Charles “Q. Now, spoke at the time you he under for anything? arrest No,

A. he was not. handcuffed,at that time? Q. he or was he not Was A. He not. manner restricted at

Q. of movement freedom Was at that time?

A. No.

Q. Do know you any charges whether or not had been him at lodged against that time?

A. To my knowledge he was not charged anything.” He spoke to Charles Green at 2 same again p.m. day, and at him. time no charges lodged against been Neither he nor Detective Summerville informed the defendant that he was under anything arrest for time. At no time was defendant 5, 1985, handcuffed on February and at no time was the defendant’s freedom of movement restricted in any 5,1985. manner on February

“Q. If Charles Green go 5, wanted to home on February 1985, you have let him go home? would

A. Yes.” Assistant State’s Attorney George Ellison came to the po- lice 5, 1985, station on February interviewed defend- ant. After interview no charges were filed. On February 6, 1985, he took Charles Green to the Cook grand County jury.

“Q. Was he under arrest at that time? No,

A. he was not. Q. Was his freedom of movement restricted in manner at that time? No,

A. it was not.” The defendant was not handcuffed when he was brought 26th and California and testified before the grand jury. He ar- rested Charles 6, Green on 1985, February after he had testi- fied before grand “some jury time in the afternoon hours of the 6th of February.”

Cross-Examination

Defendant’s exhibit No. 3 is a copy of the arrest report Charles Green. Box 22 states that the time of arrest occurred at 1 p.m., February 1985. His name was contained in box 55 as an arresting officer. Box 41 has the person notified as Sergeant J. Regan, Area Crimes, Violent 1315 hours. That would be minutes after the time of arrest. Sergeant J. Re- gan was his supervisor on February 1985. Defendant’s ex- hibit No. 3 is a supplemental report bearing his signature which signed some time in the evening hours of February 6, 1985, and it was approved on the morning of February Page of that report. in the preparation He assisted

1985. received House on information states that “based report He, on 5—5—85 custody were taken into and Green [sic].” report. Miller prepared Detective Michael 5, 1985; is that custody “Q. Mr. Green was correct? speaking.

A. In a manner of no, he in Q. custody? Yes or was Yes, A. he was.”

Redirect Examination in a mean when you say Miller what do

“Q. you Detective 5, 1985, custody February he was in speaking manner of Green? referring to Charles a police facility. police presence

A. He was in man- any restrained Q. his freedom movement Was 5,1985? ner on February handcuffed, nor arrested

A. No. Charles Green was him, he nor was lodged against charges nor were anything 5,1985.” February manner on any processed Re-Cross-Examination you. free to leave

“Q. custody mean Does A. Yes.”

Examination the court: presence in the defendant’s

“Q. long you How [Febru- 5,1985]? ary hours, more or less.

A. Three of the defendant? Q. presence this continuous Was room, sir. yes, A. In and out was this? Q. day What time until 5:30. that afternoon p.m., 2:00 A. Approximately go at 5:30 did the through Q. got After you home? No,

A. sir. that date? defendant on Q. How old was A. Sixteen. home? he go he told that could

Q. Was Yes. A. through? gotten

Q. After you Yes, sir. A.

Q. about in the beginning? What A. He was told he had freedom to leave time always he wished.

Q. Did tell him that? you Yes,

A. sir.

Q. him Who else told that?

A. Detective Summerville.

Q. Did he leave finally the premises? No,

A. sir. Q. you got through When what to him? happened A. stayed He night. facilities over Q. Whereabouts?

A. In the room interview in Area 4 Violent Crimes.

Q. Did he ever leave that interview room? Yes,

A. eat, my washroom and to knowledge.

Q. Did ever he leave the facility? No,

A. sir.

Q. Next day was then taken to the Grand Jury?

A. He was.”

JOHN O’DONNELL —Direct Examination

He was an assistant Attorney State’s 1985. On day assigned the felony hear- preliminary division, ing Branch 66 of the State’s Attorney’s office. The grand was a of jury that unit. He part saw Charles Green he to him on spoke that date on the fourth floor at 26th (the and California building) criminal court at approximately to 5 p.m. Members grand jury that present time. People’s exhibit no. 1 ais 22-page transcript the tes- timony given by Mr. Green before the Cook grand County jury 1985. Before the Charles Green he made a statement to the grand members of the jury. People’s exhibit No. 1 is a true and accurate transcript questions asked given responses by Charles Green. It also reflects the statement which made the grand jury.

Before grand Charles Green testified at the charges no jury had been placed against charges him. Criminal were placed against (O’Donnell’s) Charles Green after his discussions -with Quinn, Miller, Dernbach and Detective which after Charles Green grand had testified Prior jury. before Charles Green before the testifying grand jury was in the State’s Attorney’s office.

People’s prior questions No. 1 states that exhibit the Cook given answers the homicides before concerning occurred at County grand jury following proceedings grand jury: first was asked having duly

“Charles Green been sworn and testified as follows: Mr. O’Donnell By

Examination Q. Charles, been sworn in? you previously have A. Yes.

Q. ladies name? you gentlemen your tell the Will Green. A. Charles

Q. How old are you?

A. Sixteen.

Q. Charles, you gave reported court statement last night to another State’s is that correct? Attorney, Yes.

A. Q. Attorney you And at time that State’s read correct? your rights;

A. Yes. you under-

Q. Attorney And told that State’s you rights; is that correct? your stood A. Yes. rights you. I’m Do

Q. again read going your Now remain you right have silent? you understand A. Yes.

Q. you say Do understand can be used you anything in a of law? against court you

A. Yes. talk to a Do have the

Q. you you right understand are being while you you and have him lawyer present n questioned? Yes. A. afford to hire if cannot

Q. you Do understand you any question- before appointed you one will be lawyer, ing if one? wish you

A. Yes. to talk to you these do wish

Q. Understanding rights, me now?

A. Yes.” the tran- hearings the suppression then read on The witness grand jury. the before script proceedings of the Cross-Examination the As- testifying grand jury, to Charles Green before

Prior with the spoken State’s O’Donnell Attorney sistant defendant, told him everything at which time the defendant grand which he later testified to before the Charles jury. him the anything grand Green did not tell or state new before jury. also with provided

O’Donnell had been court-re- prior ported prior statement some defend- police reports Green’s ex- appearance grand ant’s before the Defendant jury. No. 6 is hibit statement which he reviewed court-reported prior interviewing the Exhibit 6 contains defendant. No. the same matters that defendant testified to in front of the grand jury. Defendant’s No. exhibit 6 was taken on February p.m. 11:10 Assistant State’s Attorney George Prior going grand jury Ellison. before defend- ant prepared a “John Doe Form 101.” This is a form that “we present anytime Foreman Grand we Jury present any Jury.” witness witnesses to Grand of a form 101 inform purpose is to the foreman of the pur- pose going before the grand seeking either jury, indict- ment or providing witness information. Green’s exhibit No. 4 appears to be form 101. It is a form is used by office, State’s Attorney’s and Green’s No. 4 exhibit con- tains names of Dernbach, Assistant State’s Attorneys Quinn. Brennan and Green’s exhibit No. has the name of defendant, age, his and the date of his to be arrest Feb- 5,1985. ruary

The State rested hearing the defendant’s motions to his arrest and quash evidence. suppress rebuttal,

On Green, the defendant called witnesses Terry brother; defendant’s Tanya Green, sister; and Willie Thomas, cousin, the defendant’s testimony whose was substantially the same as the foregoing chief the defendant’s sis- ter, Gloria Ann Thompson. The defendant Virgil then called Bridges aas rebuttal witness testified.

VIRGIL BRIDGES —Direct Examination

He lived at 620 S. Lawndale with his sister mother, 5, 1985, brother. On the morning offi- a.m., cers came to house about me “they they told me going up High take to Orr School.” Kedzie him the station at and The officers took At station the offi- High Harrison and not to Orr School. and cers held him in a room on the second floor handcuffed from approxi- him to a on the wall. He remained there ring p.m. 9 a.m. until 7 mately station,

About three after he had arrived at the hours a Miller. asked me I he had conversation with Officer “He did no, I him I Then he know a Little Charles and told didn’t. that I and he me and I I slapped said then said lying he then chest, wasn’t And hit me in and he hit lying. they my ribs, me in then tried to kick me in my my privates, and he you lying again, but I So then he are and then moved. said left they out.”

At during no time first interview did he tell the officer Charles, that he a Little that he had had a knew conversation Green or Little on 1985. He January Charles Charles him not tell Green told that did the officers that Charles had At (Green) something wrong. during he had done no time he first three hours of the did tell the officers that interview Raynard’s told gone Charles Green had him that Green had open else gotten Raynard house with someone and him him; that Green had told nor Charles “what gates to go way.” there wasn’t that He did happened up supposed gameroom at the and heard not tell the officers he was talking Derrick House about the burglary Charles Green and house. Raynard’s bars at held, he one of the officers

During slapped the time him, over put bag and Officer Miller came in and his brown head, p.m. made a at around 7:10 An and then he statement in and he the state- Attorney signed assistant State’s came ex- go. him free to Defendant’s ment and told he was they page page his signature hibit No. 1 contains 5, 1985, at he 7:10 is the gave it statement p.m.

Cross-Examination name and not have a street age. is 17 He does

He years car, handcuffed defendant. He was neither does the and Ked- station at Harrison he at the police or until arrived time, they At hand- room. zie and into interview put room, there from stayed ring him a cuffed signed at which time he 7:10 p.m., 9:10 a.m. until about statement and let they room, him While he was in go. Of- Miller ficer and Officer Summerville came in closed door and him talked to for about three hours.

Officer Miller slapped him least 50 times and hit him on both sides the face. Summerville hit him Detective also times, stomach with his fist or six five had a “he se- rious look on his face.” Miller bag Officer Jewel’s over put his head and it squeezed so he could not breathe. He screamed and he kicked but he see couldn’t because of the bag on head. Then Miller Officer the bag took off and said tell “better us what we want know.” Officer Miller said that he wanted to know whether he (Virgil Bridges) knew a Charles, Little him told he did not know Little Charles. Charles Green is his cousin. They also tried to kick him “in my privacy.” Officer Miller kicked him once in the groin and to attempted again kick him he but moved. He then cousin, made a false police statement to the his about Charles Green.

When State’s came he and asked him he Attorney how was, and “I I told him doing alright.” was He told State’s Attorney that he had seen the defendant on Avenue, Chicago and at that he time didn’t what say happened, had he had gotten them to open the He bars. told Attorney State’s that he saw Charles Green on January to 7:30 p.m. at Chicago Hamlin, that he had that told him he (the defendant) “did He something wrong.” told the State’s Attorney that Charles Green told him that he and someone gone else had to Raynard gotten Rule’s and he had place Raynard gates to them. open police This was what had told him tell the Attorney. State’s He also told the that State’s Green had told him “that Attorney sup- wasn’t pose go way.” that The him had told to tell that police Attorney. State’s The told tell police also him to that State’s Green talked to Derrick Attorney House that he said that Green had the bars. opened him did not tell to tell State’s Attorney that Green anyone, house, had shot or stabbed anyone that up he had tied or set any any women women on fire. He said what told the Attorney State’s of it statement but “all is untrue. I even hadn’t seen Green.”

Redirect Examination that

Nothing in the statement Little Charles says Green, my Charles cousin. BRIDGES, a defense rebuttal witness—Direct

GEVENA DUNCAN Examination 5, 1985, the lives Lawndale. On

She at 620 South She asked one police came to her house at about a.m. nothing he told me it was wrong the officers “what was at Orr about; happened incident had be concerned inci- School, son had my implicated been High clear name. wanted to take him over to his they dent and long; nothing it take it was And he said wouldn’t bring him back.” they about and would worry with the officers and she next saw him about Her son left At his when he came home. that time evening or 9 p.m. said, no- swollen, “Ma, and he I didn’t go slightly face was straight took me to Kedzie High They where near Orr School. told her that he station.” Her son further and Harrison had plastic bag and beaten and that a handcuffed been his over head. placed been

Cross-Examination jaws home his cheeks and her son came

When bigger side of his face was than swollen. “One slightly not see noticeable. She did immediately side.” It was other medical blood, hospital, nor seek nor take her son doctor, if he togo “I asked him wanted treatment. her kicked also. told had been said no.” Her son had sta- a statement at signed police told her that He department to the about complaint police She made no tion. contact her son. Neither did she had treated how office, Attorney’s or the United State’s Attorney’s the State’s son had officer about how her office, enforcement law station she go did treated. Neither been day. Examination

Redirect (Chicago Chan- Ewing in with Russ touch get tried to She son, her who had been news about reporter) television nel 7 officers. by the police and kicked slapped VIOLA GREEN—Direct Examination

She is the mother defendant, of the Charles Green. On Feb- ruary 1985, she received a telephone call from Gloria her Thompson, daughter. Gloria “told me that some policemen was at my son, house and they getting Charles my Green and Terry Green and my nephew, Thomas, Willie that they were searching the house.” She never talked to a policeman when Gloria called her.

After she received the call phone she went back her ma- chine where she worked, got out, her purse, punched and left for the police station at Harrison and Kedzie. she When ar- rived there she spoke Sergeant Regan.

“Q. Did Sergeant Regan ever tell you that son your free to leave?

A. No.

Q. Sergeant Did let Regan see you your son at the police station?

A. No.”

Cross-Examination

“Q. Did you ask to see your son?

A. Yes.

Q. Did you see him anywhere?

A. No.” She remained at the police station for about 45 minutes or an hour, and then she left the station and went home.

The trial court ordered that Sergeant Regan be called as a wit- ness.

The defendant sought to introduce as defendant’s exhibit No. 7 transcript of James Davis which was presented another proceeding behalf of one House, Derrick the hearing of House’s motion to suppress evidence. The State objected, con- tending that “only relevant questions and answers be considered by Court.” The defendant agreed that those “only portions which the court already previously deemed and admissi- appropriate ble into evidence” would be considered trial court. The trial stated, court “I have to read only relevant of this portions tran- script as it also applies to the facts produced case, this and they are offered for the purpose of contradiction or rebuttal.” of Der- on behalf Testimony (testifying of James Davis’

Transcript suppress proceeding) rick House’s motion to evidence another Direct Examination 1985, 4,

He 3 or lives at 852 North Kolin. On he leg recovering had been in the at his home from shot and was his home Foley wound. He was arrested at Detective 4 the him and taken to Area 4. While at Area officers took a little six officers At present. room where or seven were he him. thought pending against that time he cases had officers him there about three hours. kept to him which concerned an gave

The detectives information to a respect incident that occurred January fire at 458 North Hamlin. evening Derrick police previous

He did not tell the that argument Rule into gotten House and had an Raynard he at said did front of 750 North Lawndale. He gameroom a He telling police not know Rule.” denied Raynard “even revolver, pro- or that Ghost displayed that Little Charles a revolver, dis- Virgil or that Magnum duced .41 bluesteel revolver, that House dis- Derrick played .38 bluesteel about evening .45 pistol silver-colored automatic played four placed individuals saying He also denied p.m. and sticks.” guns “happy their on the couch smoked Cross-Examination 12, 1985. He did January Derrick House on

He did not see and Little Charles not tell that Derrick House the police murders, they him that police told involved in 11, 1985, that on He tell police January were. did not in front of Rule Raynard House p.m., approached Derrick between argument that he had heard gameroom telling police He denied Raynard Derrick Rule. House Ray- Rule and House with fight that he seen a between not tell the He did getting nard the best House. gameroom p.m. at 11 on January came in Derrick and Little Charles when House with Ghost going peep Derrick “we are say House overheard Derrick that he saw not tell He did Raynard.” together gameroom leave the Little Charles House and that Der- tell the police He did p.m. return 12:30 about gameroom rick and Little Charles returned to the House say he overheard Derrick House p.m. about 6 “[W]e them, we them.” He did not see Derrick House got burned guns day. He in the presently penitentiary was any attempted for residential burglary, burglary, an armed robbery, (unlawful time he was weapons). UUW use Before that in the House of Corrections which con- burglary, convicted 9, viction occurred on 1985. April

The followingwitnesses were called in surrebuttal by People. JOHN REGAN—Direct Examination 4,

He was second watch commander in Area Violent 5, 1985, On Crimes. he in the February was involved investi- gation 12, 1985, homicides which occurred on January at 458 Hamlin. He recognize North did not the arrest slip for Green, Charles defendant’s No. 2. exhibit He knew that on 5, 1985, had February brought Charles Green been into the Area.

“Q. question you, My Sergeant Regan, is were you ever 5, informed on 1985 that Charles was February Green in cus- tody?

A. I knew that he inwas the Area.

Q. he in custody Was when he in the Area? No, sir,

A. he was not.” Defendant Green’s exhibit No. of four consisting pages, it, contained his He signature. reviewed he then testified: “Q. you Were informed via those documents that Febru- 5,1985, ary that Charles Green was in custody? Yes,

A. sir. I have to correct myself.” GEORGE ELLISON—Direct Examination

He was a State’s Attorney assigned trial assistant. felony 5, 1985, On about February 7:10 evening, spoke to Virgil Bridges. He did observe bruises on Virgil Bridges’ face. He to him him spoke alone he asked if he had been treated well Bridges replied he had.

MICHAEL MILLER—Direct Examination February spoke Virgil Bridges

On at Area nor the interview Neither he room. Detective Summerville hit, placed bag Virgil kicked or over slapped, plastic Bridges Virgil head or the throat of Bridges’ squeezed him. tried to suffocate

Ill court, court, unlike in this The State’s assertion trial no probable there was cause the defendant’s arrest abso- correct. lutely

Detectives John and James Clemmons were shown Summerville from his home at 1 p.m. have taken two, 1985. Of these Summerville testified al- only Detective leged home. Because reasons detectives went to information he received from alleged Summerville’s rendition of cause, it is neces- finding probable James Davis is essential to.a in some detail to examine Detective Summerville’s sary what information Detective Summerville exactly order determine from James Davis when he and Detective allegedly received examination, De- Clemmons went the defendant’s home. On direct to his regard testified as follows with conversa- tective Summerville tion with James Davis.

“Q. Summerville, relate the content of just Detective what that had with Davis at the' you the conversation was James police station? he January

A. told me on the 11th of James Davis gameroom occasion to at 750 North Lawndale. be at and Derrick Raynard at that he saw Rule gameroom While argument gameroom. House in a outside verbal about; Davis tell Q. argument did James What was you? Yes, money.

A. he said it was about tell Q. you? What else did he into fist wherein fight soon argument

A. The escalated in that fight. of Derrick House Rule the better Raynard got Der- including several people, The took front of fight place the 12th Jan- following day, rick girlfriend. House’s Davis was morning, James approximately at 11:00 uary, he as Ghost. a man identified gameroom at the same House and Derrick gameroom While [defendant] going they in and told Ghost Charles Green came were going that meant they Davis Raynard. explained to peep returned gameroom, Davis then left look for Raynard. about 12:30 where he remained until Derrick House returned along with Charles Green at about 6:00 At p.m. [defendant] time, Ghost was present, boy Virgil named was also present, remark, them, and Derrick House made the got ‘we got them, burnt, we we just got them, we we just burnt Ray- nard.’

Q. else What did James Davis tell you? A. went Davis went into the say they back room of the gameroom where Derrick House removed a .45 silver col- ored handgun from his waist. Charles Green had [Defendant] a blue steel He handgun. didn’t know what He caliber. also stated that Virgil had a .38 caliber handgun. They began make talk, small sticks, and then began smoking which happy is marijuana dipped PGP.

The State’s brief in this court tracks virtually Detective Sum- merville’s aforesaid direct examination from the report of proceedings as the statement of facts of the case. The State’s brief states:

“Pursuant to his investigation, Detective Summerville inter- viewed James Davis on February 1985. James Davis told Detective Summerville 11, 1985, that on January Ray- saw nard Rule and Derrick get House in an argument outside of a gameroom located at 750 North Lawndale. argument This over money escalated into a fist fight wherein Raynard Rule ‘got the better of’ Derrick House in front of people several in- House’s cluding girlfriend. ‍‌​‌‌​‌‌​‌‌‌‌​‌‌‌‌‌​‌‌​​​​‌​​‌‌‌​​​​‌‌‌‌‌‌‌​‌​‌​‌‍James Davis also told Detective Summerville that on January 1985 at 11:00 a.m. saw defendant and Derrick House come into the gаmeroom and tell a friend they were going to ‘peep’ or look for Raynard Rule. At 6:00 p.m. on January Derrick House and defend- ant returned gameroom and saw a boy named Virgil; remarked, Derrick House them, ‘we got them, we got we just Raynard.’ burnt Detective Summerville also testified that James House, Davis saw defendant and Virgil with handguns at the gameroom and they began smoking ‘happy sticks’ which is marijuana dipped in PCP.”

And, in a final and conclusive transposition, Detective Summer- ville’s aforesaid controverted motion to suppress direct examination (and the above-quoted portion of the brief) State’s has copied been virtually verbatim into the majority opinion as fact Ill. (179 App. at 8) as follows:

“At the hearing defendant’s motion quash arrest, in- to his pursuant Summerville testified that

Detective John and Lauren Rule Raynard of the deaths vestigation Brooks, on Febru- spoke Kim he to James Davis Yvonne and 11 he saw January Summerville that on 3. Davis told ary over argument fistfight House into an get Rule and in front of a crowd the better of House’ money; ‘got Rule a.m., 12 at 11 January On girlfriend. which included House’s room at game House the Lawndale he saw defendant and or look for ‘peep’ they going which time said they defendant, Rule, he House and a evening and later that saw smoking all had and were Virgil, handguns named who boy House POP), laced with and heard (marijuana sticks’ ‘happy ” them, them, Raynard.’ we burnt got got just we say, ‘We rendition of what Now, in Detective Summerville’s my judgment, reliable) allegedly previously shown to have been (not James Davis investiga- a reason for further told him would constitute certainly cause to arrest the defend- tion, probable it would not constitute however, discussion on this point, ant for murder. But extended above-quoted testi- because Detective Summerville’s unnecessary lie, misrepresenta- or at least a deliberate was shown be mony cross-examination, two). is a On (if tion there difference between testified: Detective Summerville Now, ever the name Charles

“Q. give you did James Davis Green? Green as Little referred to Charles

A. James Davis Charles.

Q. He did?

A. Little Charles. Charles, Little did he not?

Q. He the name of gave you Yes, A. sir. knew that Little Charles was

Q. he tell you Did Charles Green? last name.

A. know Charles’ He didn’t of Little Charles? Q. give description ayou Did Yes, A. sir. description?

Q. And what was A. I remember now. don’t to your important Little Charles

Q. description Was Detective Summerville? investigation, time, sir. yes, A. At that it down or in- down or write did not take it

Q. you But it, correct? is that or remember any report clude it in it, A. I yes, did remember sir.

Q. What did remember about the you description? A. I don’t remember at moment. this Davis, Q. took from is that cor- You a statement James rect? Yes,

A. sir.

Q. Davis, Youinterviewed James is that correct? Yes,

A. sir. Q. statement, interview, you Did ever ask be reduced writing?

No,A. sir.

Q. to, you affirm, Did ever ask that Mr. sign, Davis attest or signature otherwise affix his your the statement as ver- sion what it was?

No,A. sir.

Q. you Did ever show him what had or you written down or any notes memorandum the or like that took re- you gards to that statement?

A. notes that were Any taken were taken in his presence. Q. any Did take you regard notes with to his statement? didn’t, A. I no sir.

Q. anyone Was else present you when took statement from Mr. Davis?

A. Detective Capesius. the gameroom with Derrick House in the after “Charles Green” was etc., is no nexus between the killings, simply had a there handgun in and the by Little Charles referred to Davis allegedly court.1 did take

Assuming that the Summerville-Davis conversation of Detective Summerville demonstrated place, the cross-examination did not iden- that did not know Little last name and Davis Charles’ “Little defendant, picture, the the defendant’s as the tify Summerville did not Charles” to whom he referred. Since Detective was similar or identical testify physique himself that the defendant’s Davis, to of Little to him James description provided by the Charles it not to arrest the defendant probable is even cause debatable was nonexistent. com- reliance James Davis’ majority’s upon

The State and the ill Summerville cause probable munication to Detective not because, established, James Davis did it was founded as simply Charles’ last defendant, Davis did not know Little know the James the identify name, James Davis did in manner defend- Attor- ant as Little trial State’s Charles. the assistant Undoubtedly on conceded they this immutable conclusion because recognized neys not have the did suppress hearing the motion to detectives his home to probable they to arrest the defendant when went cause sup above, Davis, testifying to on Derrick House’s motion 1 As noted James by to him Sum press, telling matters the attributed denied Detective Summerville attorney present for Davis’ testi nor his merville. But neither the defendant suppress on his motion to mony, not call a witness the defendant did Davis however, did, attorney proffer contradict Summerville. The defendant’s order to court, “pertinent” parts of which the testimony the transcript to the of Davis’ least, given considered, say that Davis’ questionable practice to the court said he attorney be the own to the defendant with was available live germane In appropriate and areas. guide Davis into ing the examination of able to determining portion(s) tran addition, way of the has no which of review a court weight gave the “pertinent”, the relative script considered the trial court portion(s), “pertinent” etc. 5,1985. on February

A of the on cursory mere record reading appeal clearly reveals 5, 1985, on February police up” the defendant at his “picked on them in- hope might give home that he some speculation formation would their investigation which further into brutal Jan- uary 12, 1985, police homicides. The held defendant at the police all night station incommunicado from his and all the next family, 6, 1985, 27 hours. Late on the afternoon of an as- day February —over sistant State’s took the Attorney 16-year-old defendant before infra), grand V, which I jury (the propriety part discuss obtained from him an incriminating formally statement under oath and then Indeed, charged the defendant with murder. hearing defendant’s motion to this quash suppress, arrest and is precisely occurred, what argued State to the trial court had except the defendant went voluntar- State there fallaciously contended that ily court, however, station. The trial found differently, the defendant was under arrest when he taken 5,1985. police station p.m.

Furthermore, findings trial court made of fact in which he demonstrated his obfuscation as to the testimony what had been on evidence, the motion suppress relied, which upon mistak- probable defendant, enly, finding cause arrest contrary the State’s urging that the defendant was arrested probable without A cause. few examples will suffice to demonstrate trial court’s confusion.

In mistakenly recounting the on the facts motion to suppress, the trial court stated that Summerville incorrectly Detective testified that told Virgil Bridges him: 12th,

“On he January took a bus with defendant Charles Green and that Charles Green had told him that he had done He said wrong. gone that had —that Charles Green —had that Raynard dope things Rule’s house and had happened that not suppose happened, were to have and Charles had told him about Charles opening burglar gates the Raynard Rule’s apartment. A written statement to the above effect was made oral by preceded by defendant an statement prior being to the time of to writing.” its reduced record does not contain such any testimony any written statement an oral by “preceded by prior defendant statement the time such being writing.” of its reduced to Even if statement had existed could not on by it have been relied the trial court es- probable tablish cause for the defendant’s arrest for the rea- simple the ar- to justify cannot be used “fruits” of an arrest son that rest. stated: mistakenly

The trial court further Miller) (Detective this court that he Green told “Charles the stom- face, took in both sides struck him 50 times in his pri- He was kicked ach, in the stomach. 5 or times in such a his head bag a Jewel’s over they put vates and manner In this hardly he could breathe. manner that told him the detectives from him and statement was forced it, made, that the statement was what This statement say. the tes- that Attorney, State’s made to an Assistant later about complaint made no here the defendant timony was time.” mistreatment at that is re- from the defendant which testimony no simply There of the trial court’s quoted portion to the aforesaid similar motely this con- trial court derived apparent It is “finding.” quite witness, Virgil Bridges. testimony fusion from the identical motion to incorrectly recapitulated The trial court likewise evidence: quash suppress the, that he told the related that

“Summerville also about something and knew opened gates that he had statements there were crime, night and subsequently by, made, proceeded 11:10 which was p.m., one at about by That statement Attorney. State’s 11:20 to an assistant insofar as nature inculpatory was of Charles Green In scene, that was involved. is the time on the presence shot, he, once heard he indicated that that statement to the gameroom. then the stairs back he ran down of those made. The character statements There were other state- statements, oral statements, previous I assume that there made, at least ments, to the statements parallel point.” made at that to that statement parallel one made no There was testimony. no such gave Detective Summerville oral said in any the defendant of what or other evidence testimony anything or evidence testimony statements. The only or written or at station while he was the defendant stated before is the defendant’s building criminal courts post-arrest such importantly, More 1985. grand jury consid- properly have been could not the defendant statements to quash the motion determining on all in the trial court at ered by ar- for the defendant’s cause was probable there and arrest whether rest. “findings”

The trial court also stated its that be- fallaciously fore Detective Summerville and Detective Clemmons went 5, 1985, defendant’s home at on how p.m. “they knew these it victims came there deaths and was criminal activ- by [sic] bars, They know ity. burglar didn’t then of the bars across the Again, front.” there nowas such from Detective Summer- ville or Detective Clemmons as whether did or did not know they burglar Here, about bars of Raynard across front Rule’s home. again, the trial court is some apparently using statement defendant, finding arid, I support probable its cause have said, prohibits the law does permit indeed such bootstrap- ping. stated,

Finally, trial court “At point find, this the court will notwithstanding background activity criminal of the defendant James Davis Davis was never a defendant in this [James case] detectives had right rely on the statements of Davis, James least related, corroborate the details notwithstanding the fact that he recanted testimony under oath.” (Emphasis added.) Again, the trial court was confused as to what the evidence had been. No witness testified that James alleged Davis’ communications and information the details related.” “corroborate^] record, however,

At no place did the trial court display his utter obfuscation and bewilderment with what the evidence had been on the motion to quash and than suppress when the trial court made the following statement: that James

“Fifthly, detectives, Davis told the that is or one the other of those both, detectives perhaps he didn’t know the last name of Little Charles but that Charles Little Virgil were related High and went to Orr School. aNow signed statement given this effect was James House court, [sic], hearing arid before this that statement was repudiated basis, number didn’t make the anything statement to officers. He denied about the statement, details of the signed admitted that he had known Derrick House two but that years Derrick House friend, not his and that told him what to say.” officers Summerville, following however, testimony of Detective quash the motion to and suppress evidence had been precisely to the regard effect with to “a written” opposite statement by James Davis:

“Q. Davis, You took a from statement James is that cor- rect? Yes,

A. sir. Davis, Q. You Mr. is that correct? interviewed Yes, A. sir. statement, re-

Q. Did ever ask that interview be you duced to writing?

No,A. sir. affirm,

Q. to, sign, Did ever ask that Mr. Davis attest you signature your his to the statement as ver- or otherwise affix sion of it was? I

A. Did ask him to do that? ever Q. Yes.

No,A. sir.

Q. or you you Did ever show him had written down what or with re- any notes or memorandum the like that took you gards to that statement? presence.

A. in his Any notes that were taken were taken Q. statement? any regard Did take notes with you didn’t, no, A. I sir.

Q. else when took the statement present you Was anyone from Mr. Davis?

A. Detective Capesius.

Q. make notes you any Did observe Detective Capesius Mr. interviewing or while interviewing you while he was Davis? remember,

A. I don’t sir. Q. reduce this why you there reason didn’t state- Is sign? ment to Mr. Davis to review and writing give it A. is necessаry. It not

Q. it not Why necessary? is you don’t necessary. something A. It is not We don’t—it . have to do.” probable finding had rendered its

After the trial court defendant, for the arrest of the cause existed 5, 1985, p.m., at in his home on was arrested admissi testimony would be subsequent grand jury the defendant’s the trial court trial, attorney requested the defense ble on 12(e) with section of fact in accordance findings make certain 114— Stat. (Ill. of 1963 Rev. of Criminal Procedure of the Code or judgment “The order 12(e)). provides: That section par. 114— findings of fact the motion shall state denying or granting is based.” judgment the order or law which upon conclusions of that James trial court out to the attorney pointed The defense statement, trial signed Davis had made no written otherwise. The “I'm not aware that. Where is was, your court’s answer to this The trial court perhaps transcript. anyone transcript? Does have spect the finding to trial court’s that gave James Davis a physical description Green, of Charles the no because State had ev- produced idence of such physical description, any nor other evidence that Charles Green the fit physical description given by James Davis. The defense stated: “There attorney was no to that and I’m evidence asking for a finding as to that response was, fact.” trial court’s event, “Was there this testimony to this (Emphasis added.) fact?” The trial court I then went on to mis-quoted, have I state “If if true, have things relied on are that not I’ll have to vacate it.” (Em- phasis added.)

The trial court appeared predicament: “Was there in its helpless Davis, written —was James was he sign any asked to written statement, yes no? or can Who answer that? Did the testimony show that James Davis was to sign asked written statement? You’re going give to have help to me some on this.” (Emphasis added.) the trial to Finally, appeared court have been confused about its own findings what my just were: “In now made did I findings indicate that there was a written statement?” added.) At (Emphasis last, the trial court abandoned of pretense attempting to be ac- any curate, and realizing after that no transcript testimony the motion available, and quash was then suppress allowed its obfus- “I cated “findings” to can take care that because there’s stand: no testimony I upon which can as to review what the actual de- *** scription James Daws —strike Little Charles was that —of there’s testimony no here. I don’t think —I know. I’ll have to make ” these I findings because the transcript think would show that. (Em- Thus, both the phasis added.) though prosecution attor- and defense erroneously neys agreed that the court trial had “found” that James statement, Davis had the court per- made a written trial nonetheless no one had an finding to stand because simply mitted this erroneous it. contradict transcript available course, may rule that a review re

I court of recognize, only if finding suppress trial court’s on motion those verse a (People erroneous.” “clearly are erroneous” findings “manifestly if 209.) Even the trial court had v. White Ill. its and if findings, findings clear concise in even those had been and evidence, I still would not be that by persuaded been supported should be in the cir applied unique erroneous” standard “clearly here, is, prosecutor cumstances where both the and the present before, after during and and agree argue, sup defense attorney did not hearing that cause exist arrest pression probable defendant, agreement argument at contrary, findings its there contrary the trial court made own torneys, arrest. has My the defendant’s research probable cause for But jurisprudence. assuming similar situation in Illinois disclosed a is erroneous” standard conceding “clearly without that, below, one, parties agreed I proper persuaded am fully defendant, that, no cause to arrest probable there was the evidence event, obviously trial court was so confused it said what testi fairly cannot be suppress on the motion it The suppres and what discredited. the trial court credited mony it be determined can read but cannot hearing sion be testimony been, it it thought court record trial from this what deference, at all due that the with all highly unlikely, mind. clеar the trial court’s it is unique out that case point quite

I constrained to am which, no that, every research reveals other case my bar re- conversation, allegedly officers arresting on which purported denied, defendant, was cause arrest probable lied to establish the officers at- each to whom oath, person court open under in tributed the conversations. cause, illegal, probable without of defendant was

The arrest this his should and statements quashed have and his arrest should been Constitution of The amendment fourth have suppressed. been to be secure in people “The of the right provides: the United States *** seizures, shall searches and unreasonable against their persons issue, upon probable shall violated, no Warrants not be and is IV.) applicable This amendment Const., amend. (U.S. cause.” (1961), v. Ohio (Mapp amendment. the fourteenth through the States Dunaway v. 1081, In 1684.) 2d S. Ct. L. 81 643, 6 Ed. 367 U.S. 2248, 824, Ed. 99 S. Ct. 200, 60 L. 2d (1979), 442 U.S. New York

65 murder, a of police investigating investigating and one officers to “pick up” ordered other detectives the defendant “bring him in.” The defendant was taken into not told that custody, arrest, he was under to and driven headquarters ques- tioned. given warnings Thereafter he was constitutional pursuant Miranda v. Arizona (1966), 436, 694, 384 U.S. 16 L. 2d Ed. 86 1602, himself, Ct. S. waived those rights, incriminated eventually and the defendant’s statements were used him at his trial. against trial court here in the State York, State of New like of Illinois, arrest, contended that the seizure did not amount to an therefore permissible was because the police reasonably believed that possessed knowledge “intimate about a serious and 207, 832, unresolved crime.” (Dunaway, 442 U.S. at 60 L. 2d at Ed. 99 S. Ct. 2254.) holding at In of Dunaway detention could arrest, not be distinguished from an the Supreme Court used lan- guage at pertinent the case bar: petitioner detention important respects was in indis-

“[T]he tinguishable from a traditional arrest. was Petitioner questioned Instead, where was briefly found. he was taken from neighbor’s car, home to a to a transported po- station, lice in an placed interrogation room.” 442 U.S. at 212, L. 60 Ed. 835-36, 2d at S. Ct. 2256. 99 at v. Brown Illinois Relying upon 590, 422 (1975), U.S. 45 L. Ed. 416, 2254, Ct. 95 S. the Court once again disapproved arrests for “investigatory” purposes on less than probable cause. The Su- preme Court Dunaway’s refused to permit introduction self-in- statements, criminatory stating:

“The situation in case of the virtually replica this situa- tion in Brown. Petitioner also seized admittedly without probable cause in the hope something might up, turn *** confessed without any intervening significance. event To petitioner’s admit would confession such case allow ‘law enforcement officers to violate the Fourth Amendment impunity, knowledge safe could they wash ” their hands in the “procedural safeguards” Fifth.’ 218-19, at U.S. 60 L. Ed. 2d at 99 S. Ct. at 2260. v. Taylor (1982), Alabama See also U.S. 73 L. Ed. 2d v. Lanier South Carolina 2664; 102 S. Ct. 474 U.S. (1985), 23,106 L. Ed. 2d S. Ct. 297. v.

In People Townes 32, police 91 Ill. 2d officers investi gating a visited at rape the defendant his home approximately a.m. on day following The defendant told incident. station, the with him at police

the officers wished to speak reason, informed him that the the officers when the defendant asked into and an assault investigating apartment an they entry of accompanying the choice given on a defendant was woman. station, car the the car or his own driving the police officers station policemen. the At the elected to ride with the defendant ultimately several occasions and questioned him his in the case at against at trial. As made statements admitted cause to bar, police probable that the lacked State “[t]he concede[d] However, time visited his residence. they arrest the defendant at the probable unnecessary cause finding that a argued [the State] of the meaning ‘seized’ defendant was never within because 38.) 2d court (91 supreme rejected Ill. at Our fourth amendment.” and, Dunaway v. York New argument, relying upon the State’s 824, 2248, 200, 60 L. Ed. 2d 99 S. Ct. stated 442 U.S. (1979), in the in “Similarly, were inadmissible: statements arrest, a case, defendant’s detention resembled traditional stant a would not person reasonable indicate that the circumstances noted, defendant previously As have he was free leave. believed 91 Ill. 2d at 37. his residence.” questioned briefly was not at 328, Ill. bears more than fa (1987), 115 2d People v. Frаnklin trial for Franklin was bench cial to the case at bar. similarity the street and police met the The defendant in Franklin murder. home, He was go station. allowed police them to accompanied poly the next scheduled day he to appear but when failed his residence and detectives went examination graph police overnight at the station the defendant to stay “asked or ordered *** room.” in an interview night the remainder spent the defendant made self-incrimina Ill. 2d (115 331.) Subsequently at The trial at trial. suppress which moved tory statements concluding that the defendant the motion to suppress, court denied volun station and had overnight stayed voluntarily that the from the officers Despite testimony confessed. tarily the time he was the murder at not a suspect defendant was noted, pur station, apparent our court “The supreme taken po to enable the detention was arrest and of the defendant’s pose some hope for evidence expedition lice to conduct an Court has Supreme practice turn might up, thing 115 Ill. 2d at 335. condmened.” mentioned, especially should be court cases recent appellate

Two 3d 497 N.E.2d 146 Ill. one, (1986), App. People Ealy v. since Jus- majority opinion, instant the author written by other, tice Murray, People v. Holveck Ill. App. 524 N.E.2d was authored other by member of the ma bar, jority in the case at In People Justice Lorenz. v. Ealy, murder, defendant was Investigating convicted murder. the the police arrived at the defendant’s home without a warrant and asked speak to to the defendant. The defendant’s mother the invited offi cers in sent younger defendant, and her son to the get who was outside in the playground area the building. When the defendant arrived, the detectives asked him if he would come to the station with them. Both detectives that testified did tell they not the defendant that he to go them, and the defendant never in dicated he did not go want to with them. The officers testified that handcuffed, the defendant was not that they pull did not their guns him, and he was in squad taken car to 4 and in placed Area an interview room on the second floor. The they officers testified did give the defendant his that warnings Miranda at time. When the mother defendant’s came to the station to her inquire son, about they officers testified told her about inconsistencies between the defendant’s and her account of the defendant’s whereabouts day of the murder. Contrary to defendant’s mother’s testimony, they then asked the if defendant’s mother she would to speak defendant about her she story agreed. and Contrary defend however, ant’s testimony, the officers further testified that when they asked the defendant if he speak would with his mother he Later, refused so. confessed, to do the defendant and the trial court denied the motion suppress appeal confession. On the defend ant argued lacked him probable cause arrest at they time took residence, therefore, him from his and his confes sion and other incriminating evidence of his il which were fruits legal noted, arrest should As suppressed. Murray be Justice wrote opinion for a unanimous in which People Ealy, court v. in therein stated:

“An arrest person occurs when detain a in man- reasonable, ner such that in person innocent the same situa- tion would not consider himself free to All go. evi- [Citation.] dence to an arrest directly probable traceable made without cause must be suppressed intervening where there are no illegal events break the connection between a detention evidence obtained as a result therefrom. [Citation.]

Here, the State concedes probable that no cause arrest defendant existed at the time he taken from his resi- at time was not ‘seized’ so

dence, argues defendant Instead, argues cause. the State probable as to require a.m., until 4 not considered under arrest defendant was existed, con- time cause and that defendant’s probable which voluntarily made. sent to the searches his confession *** * * ^[*] find are present circumstances case more We v. Townes Ill. 2d 32 People analogous those v. Ealy, 146 Ill. 3d at 564-65. ***.” People App. People Ealy v. went on in Murray analyze

Mr. Justice York, v. Dunaway v. Townes New then con- compare People cluded: present the circumstances the instant case

“We believe reasons than Townes compelling far more rever requiring Here, trial to the obvi judgment. sal of the court’s in addition Townes, the police ous this case and continu similarities of interrogated eight during the defendant times ously interrogation and six period 18-hour sessions more —three of the in longer interrogation hours than the defendant Townes.” 146 3d at App. Ill. 565. v. 38, People Holvek (1988),

In 171 Ill. 3d N.E.2d App. 1073, Lorenz, an Mr. the by written Justice defendant was opinion assault The police convicted of deviate sexual and unlawful restraint. if driving the as he was his and asked him he stopped defendant car to would them to the station answer some go police questions, with and the “sure.” He his own car to the responded defendant drove The officer’s that he “invited” police police station. was to the The agreed. defendant come to station the defendant officer that was to leave after being testified the defendant free his stopped, weapon, that officer not drawn handcuffed the the State defendant, level, At trial or searched defendant. to the go consented to the defendant had theory advanced the fact, and, stipulate in offered questioned, station and to be probable cause. upon not based initial of the defendant was stop po to the go consented trial the defendant had court found activities such that normal arrest for noted questioning, lice station prior had not taken place the defendant searching booking statements, and, denied accordingly, incriminating his making he had the statements which to suppress the defendant’s motion to Holvek, very is similar factually made at In which the station. court a unanimous speaking Lorenz bar, cause at Mr. Justice said:

“The issue before us is whether trial court correctly not prior making found that defendant was arrested statement, con- incriminating voluntarily first instead submit to sented to station and accompany police police *** questioning. It is also well established that where there are coercion, a court will find con- significant indicia not if trolling fact that a defendant was asked merely police would or that he was not told accompany [citations] that he was under to undergo booking proce- arrest made *** dures [citation]. *** find a reasonable innocent man con- clearly [W]e fronted this situation would have believed that he was to leave time free at the that the their began ques- tioning. finding

This apparent reinforced purposefulness conduct. The State conceded the officers has had no probable cause arrest the defendant when Officer stopped. Buschbacher admitted that defendant was committing no crime and he had no basis for arresting the defendant.” 171 Ill. 3d App. at 46-48.

Mr. Lorenz Justice concluded that “the seizure of the defendant appears nature, to have been investigatory calculated to elicit in Therefore, formation from him.” (171 App. 49.) Ill. 3d ruled court, cited, Holvek the cases together with Brown v. Illinois (1975), 590, 416, 2254, U.S. L. Ed. 2d 95 S. Ct. mandated that the trial court erred in failing quash the defendant’s arrest and to suppress the statements dining elicited from him interrogation following that arrest. It must be noted that the defendant Holveck, unlike the bar, the case at adult. authorities, others, These People such as v. myriad Cole (1988), 172, App. 635, 168 Ill. 3d 522 N.E.2d v. McGhee People 154 Ill. App. 3d 507 N.E.2d v. People Haymer (1987), 154 App. Ill. 403 N.E.2d v. McMa People hon 83 Ill. App. 781, compel 403 N.E.2d but one conclusion: The fourth amendment to the Constitution of the United States will not the countenance and interference with interruption citizen, the aof of a liberty probable absence warrant cause, information,” “to elicit or “for or for investigation,” other euphenism. synonymous

IV the motion to his hearing quash On the defendant’s arrest statement, the trial grand jury his uncounseled assist- suppress oxymoronic, ant State’s were confronted with an diaboli- Attorneys the mur- quadruple cal If the defendant was arrested for dilemma. home and was under arrest by ders the officers the defendant’s the station and when he was sum- therefor while was at gave incriminating statement before moned counsel and his without prosecution to con- only the available the grand jury, evidence defendant, incriminating state- grand jury vict defendant’s ment, the defendant at trial because it was against was inadmissible rights coun- in violation of the defendant’s constitutional obtained not to be sel, against compelled not to be a witness himself and Attorney the trial assistant State’s Conversely, incriminate himself. in if defendant not arrested his theorized that was apparently officers, under arrest in voluntarily home was not but by counsel, although without voluntarily appeared station and gave incriminating his statement before only years age, volunteered, incriminating grand jury grand jury, against admissible the defendant at would be therefore statement The contentions trial for the trial court bifurcated both his murders. was ar- held that the defendant applied segments from each. It never- incriminating grand jury testimony his home rested at adopts both con- The this court majority theless was admissible. tentions, the bifurcation. without Attorneys State’s

It little that the trial assistant is of wonder cause for probable there no contended the trial court in their recognized deficiency proof They Charles Green’s arrest. no admitted there was Attorneys State’s on this issue. The assistant an argue proceeded to arrest probable cause as- appellate from the one advanced theory different entirely of the State. In the in this on behalf Attorney court sistant State’s be- inconsistencies court, alleged the State the various argued trial State’s assistant the defendant’s tween witnesses’ when has shown that People’s evidence concluded: “The Attorney the purpose it was taken to the station Charles Green was ar- added.) As to the ***.” investigation (Emphasis conducting at 1300 was arrested the defendant rest statement report argued Attorney State’s hours, 5, 1985, the assistant added.) (Emphasis paperwork.” a mistake “just this was test of the accepted further Attorney argued assistant State’s the that he was under arrest when he whether defendant 'believed left the man innocent of apartment any was “what reasonable [a] shoes,” thought crime would have the defendant’s been that Attorney proceeded argue then the assistant State’s person reasonable “in the shoes” would not believe he was under arrest. He further that be- (Emphasis added.) argued lief the he was defendant that under arrest would have been an concluded, unreasonable Then the Attorney belief. assistant State’s “I suggest, therefore, that the was not under arrest when defendant *** he was taken the police station. component The second officers. It arrest concerns the intent of the was not the in- police tent police the officers, that Detective Summerville nor Detec- Clemmons, tive to arrest Charles apartment.” Green the (Empha- sis added.) trial assistant Attorney State’s continued to argue (cid:127) throughout presentation that arrested, the defendant was not but had been asked merely “to come down to the police station to aid in an investigation,” and that under the circumstances shown by the evidence to exist: hold that this amounted to an arrest would be to hold

“[T]o that virtually any stationhouse interrogation is necessarily so custodial to indicate that person questioned has been placed under arrest. This would mean that could not request presence anyone even non-custodial questioning unless and until they had probable cause. And I suggest to the court that there is no such reason to restrict *** function investigatory police. to the When was the defendant suggest arrested? I court he was arrested *** and placed in custody after he testified at the Jury Grand the court has learned about the statement made by the defendant Charles that gave Green before members of the statement, I that Grand suggest along with all Jury and the other evidence that at police had time has pro- vided probable cause to arrest this Charles defendant ” Green. added.) (Emphasis Thus, nothing could be clearer than that at position State’s the trial level was probable did not have cause ar- rest the defendant went at 1 they when defendant’s home p.m., 5, 1985; the officer not arrest did defendant time, requested the defendant’s assistance in their merely investigation. Indeed, homicide the trial court in its alluded this it findings suppress when denied the motion quash as fol- the defendant was to be that position appears lows: “The State’s after taken before the Grand on Feb- Jury arrested until he was 6, 1985 ***.” ruary

It is in the trial court position to reconcile State’s impossible wherein, Detective Sum- recounting with its in this court after brief allegedly merville’s as to what James Davis told misrepresentations III, him (see People proclaim about part supra) this court: con- the officer’s police

“Given the fact the reasonableness of of their on the basis making judged duct an arrest must be the criminals, and responsibility apprehend crime prevent they did not police in this case would have been remiss if concerning custody question take the into and him defendant his involvement in murders.’’ added.) the (Emphasis State’s As I the mouths of the trial assistant have shown from en- that the the trial level was the of the State at Attorneys, theory consensual; the was peaceful to the defendant’s home try invited to come merely was not arrested in his home but defendant station to in a homicide investigation; voluntarily the aid police hours; the for 27 and then testified volun- remained with authorities arrested. promptly before the after which was tarily grand jury, trial, the State’s at at least it had Preposterous theory its own wit- merit of based on its view of the of being But appeal, nesses and of possessed degree consistency. not the officers turn that contending State has taken a 180 degree February home on at his only arrested the precise done “remiss” if had they the officers would have been defendant, al- do, i.e., not arrest testified did things they they total this wished, explain etc. can him to home if he What go low oxymoronic dichotomy? trial court that

The for the State’s contention explanation in his home Green to arrest Charles lacked cause probable (1) factors: two 5, 1985, upon was based February undoubtedly the cross-exami- that Attorneys recognized the trial assistant State’s misrepresenta- so undercut of Summerville had nation Detective Attorneys assistant State’s examination that tions on direct arrest existed to that cause urging probable no confidence in of admissibility defendant, sought preserve therefore they that contending by statement grand subsequent jury the defendant’s because illegal arrest of the defendant’s it could not be the “fruit” all, merely at instead he been arrested the defendant had not information; cooperating voluntarily citizen providing (2) incrimi- Attorneys recognized the trial assistant State’s nating counsel be- by person statements made arrested without V, a grand (see fore are not on his trial jury part infra), admissible whereas such statements are if made admissible witness view, under it arrest. Thus was from the State’s mandatory, point to establish that the defendant was not “in when he testi- custody” grand fied before the jury. unimpressed trial court was so with the State’s singularly

argument took step research perhaps unprecedented (my case), “finding” discloses no similar probable there was cause for the 5, 1985, arrest the defendant on February p.m., despite urging both the and the defense at- prosecutors torney that there was probable no cause to arrest the defendant. A pertinent then, question, whether State be may permitted contend and concede in the trial there was probable court no defendant, cause arrest and that ar- the defendant was not all, rested at and then conversely contend urge in the court of review the exact opposite there was probable cause arrest —that the defendant and indeed the officers did so in defendant’s home on 5, 1985, and that they fully justified doing so; in- deed, would have been “remiss” if had not they done so.

I consider the State’s retroverse brief argument in this court not only to degrading the of the integrity profession its re- by liance upon Detective Summerville’s concerning misrepresentations probable cause, but insulting to the of the intelligence members of this court as well. the asked, witness for State who in- Every was cluding an (John assistant state’s attorney O’Donnell), unambigu- ously testified that the not defendant was restrained or of deprived his freedom until he testified grand before the on the late jury after February 6, 1985, afternoon of and that at all times until then the defendant remained free to go Yet, home if he wished. in this court the State’s brief tells us that if the authorities had precisely done what they swore did they they do would have in been “remiss” their duties. is This more than capricious inconsistency. in Implicit an acceptance of the argument State’s in this the present court is inescapable conclusion that the State’s witnesses committed perjury when 5, swore the they defendant was arrested on February 1985, in manner, was not restrained and was at all times free to leave the station and home if go only he wished. The testi- in mony entire on suppress the record the motion to which supports 74 1 on Febru- p.m.

the that arrested at proposition the defendant was 5, 1985, in (the argument) his home State’s came ary present from the very testimony the and his witnesses—the which as- defendant lengths State’s to such in ar- Attorney great sistant below went trial to In other urged reject. to the court gument discredit and words, in this we be re- position to the State’s court would uphold all the to discredit only credit the defense witnesses and quired is of its But State’s predicament State’s witnesses. dilemmatical I find making, disingenuous. own it the State foregoing may answer whether question, there no probable

contend and concede in the trial court that was the defendant was not ar cause to arrest the defendant and that in court all, conversely urge rested at and then contend and this was cause arrest opposite probable review exact there —that so in the home and indeed the officers did reasons, 5, “No,” and several clearly on 1985—is February to a obnoxiously one which it be unfair major would attempt his efforts on defendant. The defendant below concentrated probable he was arrested without ing convince trial court that 5, 1985, as he his wit in on cause his home 1 p.m. one docu report so the arrest relevant nesses testified and as —the states. Because appeal ment which is record —so cause to ar lacked probable State’s concession detectives little no effort to cross-ex defendant, made or rest the the defense area, in Detective Clemmons this amine Detective Summerville or element which the the lack of very to call witnesses establish remem It must be conceded was indeed absent. already State once the defendant offered evidence regard this bered at a time when he he was his home without warrant arrested prove State law no law the burden was violating 172, 3d (1979), v. 78 Ill. (People App. fulness the arrest. Nash 73 Ill. 3d 484; (1979), App. v. Boston People 397 N.E.2d 506; (1975), Ill. 107, 111, Talley App. v. People 391 N.E.2d v. Watson People Lorenz said 167.) N.E.2d As Justice 3d 1153, 1158: “Once a 492, 499, N.E.2d Ill. App. connection of the arrest and its the illegality defendant establishes establishing fruit, has the burden prosecution alleged challenged statement evidence that convincing clear and of the to purged be distinguishable means sufficiently obtained by to sus not be permitted the State should Certainly taint.” primary arrest of the defendant’s its of the lawfulness proving tain burden

75 court and had been no arrest. in the trial that there was by arguing Our court times on this fundamental supreme many has commented it to defendant for State to concept basically is unfair a the In People Holloway v. raise an for first on issue the time appeal. (1981), 78, 91-92, 86 2d for court example, supreme Ill. our said: turn to of question

“We next the whether the State has its right challenge waived to standing defendant Moore. The State no counsel made when for defendant objection Moore in orally defendant motion to joined Holloway’s sup Also, press. the State filed a motion to reconsider court’s on ruling Again, the motion to neither in suppress. the motion nor its argument on oral did the State raise the question standing. Moore’s Issues not raised in the trial are gen court v. (Peоple erally considered on Knight appeal. waived (1979), 291, 300[, 79 Ill. 2d 414].) 388 N.E.2d principle waiver to applies the State as well as defendant in a criminal case. (People v. McAdrian 250, 2d (1972), 254[, Ill. 688].) N.E.2d Had the a State made timely objection, defend ant Moore have may been able to satisfy court did, fact, possess interest in the premises sufficient to give him standing to to object the warrantless As noted entry. McAdrian, one of the basic considerations supporting rule preventing raising from for party issues the first time is appeal failure to urge a particular theory be ‘[t]he fore the trial court will often cause opposing party re frain from presenting available rebuttal pertinent evidence’ which could a bearing have on the disposition question. v. (People McAdrian (1972), 52 Ill. 2d 254[, 287 N.E.2d v. People McCullum See also (1977), 66 Ill. 316[, 2d 688]. 362 N.E.2d 307].) Consequently, we hold that the State has waived its ‍‌​‌‌​‌‌​‌‌‌‌​‌‌‌‌‌​‌‌​​​​‌​​‌‌‌​​​​‌‌‌‌‌‌‌​‌​‌​‌‍right challenge standing of defendant Moore.”

Holloway thus stands proposition may State fail to object standing lack of motion bring suppress, then, on appeal, take the diametrically opposite po sition that lacked standing. applicable This rule is whether the State is from the appellant granting motion People v. Weber suppress, (1981), App. Ill. N.E.2d or the defendant of a appellant is from denial mo People v. Chianakas tion as in suppress, 114 Ill. App. 3d 496, 448 N.E.2d People v. A Franklin point 620. case directly

76 in part 115 2d in another connection (1987), (cited supra Ill. 328 Franklin, a III). poly In defendant was scheduled appear the his the examination, he failed to graph keep appointment, and when the apartment, took the defendant murder victim’s police the stay overnight then or ordered the defendant to at either asked the The the in an interview room at spent night station. defendant examination, was given polygraph and the next was the day station it, questioning, told he failed to further where subjected that quash confessed. On the defendant’s motion to upon eventually statements, the trial concluded his arrest and to his court suppress night that at the station voluntarily stayed the defendant had over the court appeal, appellate and denied the motion to On suppress. but on a different suppress affirmed of the motion the denial arrested, in that the ar the had fact been ground: That defendant cause, that the defendant’s rest was not supported probable the statements statements nevertheless admissible because were to be free from “sufficiently illegal distinct from arrest were [the] the 332.) the of Ill. 2d at After illegal (115 initial taint” the arrest. Illinois granted by for leave to was the petition appeal the Court, (a) new theories: That Supreme the State several adopted the attenuation of the taint of examination had worked an polygraph held; the mis arrest, (b) the illegal appellate as court conducting an purpose for the detaining in the defendant conduct abusive; per that the (c) not expedition flagrantly for evidence was was arrest and his confession iod time the defendant’s between detention, that it nor so brief aggravated not that it so lengthy that, fact, taint; in dissipation (d) initial prevented cause. supported by probable the arrest of the defendant had been Franklin, bar, in at State one Thus, position in the case took at in been no arrest the defendant the trial court—that there had an arrest there had been position appeal all—and another on —that supported by probable that arrest was of the defendant and in flip-flop the State’s bid rejected The court supreme cause. Franklin: raise, in sup- prevailing party may that a

“The rule general in does the record any appearing reason port judgment, of a the posi- is inconsistent with the new theory not when apply in contrary acquiesced or the has party tion adopted below this case the State’s We believe findings. [Citations.] con- late, for it directly too comes argument probable-cause The hearing. po- theory pretrial State’s flicts with the

77 lice suspect officers testified that defendant on that he murder case until sometime June did nоt commit in their 13. Further presence crimes June more, did develop not have opportunity factual 2d at opposition theory.” record new Ill. 336. People v. Wetherbe

In App. Ill. N.E.2d driving car, defendant was stopped while car searched, and The equipment sought stolen found. State to justify ground seizure officers conducting lawful inventory the items in the car. trial court concluded the inventory procedure was in fact an investigatory search and sus tained the suppress motion to evidence. On the State appeal, changed theory its sought to justify being the seizure as inci dent to a Omitting citations, valid arrest. the held, court

“If the search had been on made the basis of probable cause, Guzlas would have been able to [the officer] the vehicle, search entire including the trunk [citations], even after Guzlas had taken of the custody car and re [citations] gardless of the validity of defendant’s arrest. How [Citation.] ever, as the did State not claim at trial the search was cause, based on probable this has ground been waived as a for basis the justifying search.” 122 Ill. App. 3d at 656.

Thus the State not may change position its on when to appeal do so would deprive the defendant of a fair to develop a opportunity factual record order to challenge the new State belated conten- tion, or when the position State’s on appeal is inconsistent with its position at "the trial level. like majority, State, seeks, the a employ common meta-

phor, “to have its cake and eat it too.” Just as the argued State probable there was no cause to arrest defend- court the trial ant, and probable there was to this cause subsequently court him, arrest opinion majority engages the same convoluted ra- tionale. The trial court found that the defendant had been arrested 5, 1985, 1 p.m. his own home. Thus much is ac- knowledged by In order majority opinion. sustain the trial court’s finding, the of this court holds majority as follows: hold that the trial finding probable court’s cause to

“[W]e against arrest defendant not weight manifest App. evidence.” 179 Ill. 3d at 11.

But then the majority reaches a contrary conclusion when dis 78 to this Sec Court Act case. the Juvenile

cussing applicability 1985, 37, ch. (Ill. tion Act Rev. Stat. 2(2) of Juvenile Court 703— par. 2(2))provides: 703— “A into custody enforcement officer who takes a minor law *** shall, released, is im- if the minor without warrant parent or attempt make a reasonable

mediately notify other for the minor’s care or legally responsible person minor resides that the minor has been person with whom the held; is and the being taken into and where the minor custody take law officer shall without unnecessary delay enforcement juvenile police designated the minor to the nearest officer in the or shall county such of venue surrender purposes village juvenile police city minor to a officer where alleged the offense is to have been committed.” not to auto with this section has been held noncompliance While (In re matically confession inadmissible juvenile’s render Stiff 619, 625), 336 N.E.2d failure (1975), App. 32 Ill. 3d in determin important with this section consideration comply under ing voluntary statements were juvenile whether a v. Cole example, People See, for totality of circumstances. v. 635, 639, People 172, 179, N.E.2d (1988), App. 168 Ill. 3d 522 People 232, 236, 3d 507 N.E.2d McGhee (1987), App. Ill. 654, 658-59, 671, 677, v. Travis Ill. 3d 462 N.E.2d (1984), App. 1008, 1012, Ill. 431 N.E.2d In re S.D.S. App. 759, 762, in court stated: which the in the instant case is telling

“One of the most factors old. have years We age juvenile, accused: especially occasion that our courts must be noted another coerciveness because the involving juveniles cautious in cases v. Travis (People (1984), enhanced. thereby of a situation is v. Haley 654; 671, see also 676, 462 N.E.2d 3d App. Ill. 228, S. Ct. 224, L. 596, 599, 92 Ed. Ohio U.S. the abrogating 302, 303-04.) response potential In the the Juvenile has enacted legislature our rights juveniles, into is taken when a Act, juvenile which provides Court be and a officer should or parent guardian youth his custody, 703— par. cha. Rev. Stat. immediately (Ill. notified. even by failing the Act case, police violated 2.) In this officer mother, and notified a youth Cole’s to notify attempt Cole, hours.” in for several custody he had been only aftеr 179. 168 Ill. 3d at App. the trial court established that the undisputed testimony

The in to see son permission denied the defendant’s mother her while police 5, 1985, a he was station on the clear vi evening in the So, olation in section and of the statute. order circumvent 703— it, am read (179 case authorities I amazed to applying utterly Ill. App. 13) opinion, at that the same defendant majority 3d who the just (179 App. 11) held 3d at was ar majority lawfully Ill. But, rested in really his home was not arrested at all. have determined not into that defendant was taken cus

“[W]e rather station of volition tody, went his own questions.” App. 179 Ill. 13. answer Thus, are by we told majority determining the claims, defendant’s fourth amendment the defendant was lawfully home, arrested in his but for purpose determining applica- bility section the defendant was not arrested at all! This 703— is not I possible, submit. Either defendant was under arrest home, when he was taken from his or he was not under arrest when he was taken from If the his home. defendant was under arrest when he was taken from his then home, questions certain must be answered, as, such whether there existed for his probable cause ar- rest; violated, whether section 702—3 so, and if effect thereof; whether the State may grand take arrestee before jury and secure this self-incriminatory statements, (On latter, etc. see part V, infra.) If the not under arrest when he home, was taken from his and he went “of his own volition” station, answered, then other questions must be such as whether the trial judge’s that defendant was finding arrested his home erroneous,” was “manifestly and the effect of Detective Sum- merville’s aforementioned But I submit misrepresentations. defendant could not been home, have under arrest in his placed home; arrested not go defendant did to the station arrest, under “of also his own volition.” One or other. But not both. terms “arrest” “volition” are irreconcilable terms characterized No contradictory incompatible oxy- elements. cold, moronic or imbrogliocal can turn hot into day into phraseology night, fire water into into freedom. custody

V The majority recognizes that an additional issue exists with re- spect to the defendant’s appearance grand before

80 demon again majority opinion which indicted him. Here jury ruled Having just strates its internal defend inconsistency. arrest, ant but went to station of own “voli was under Ill. in of (179 App. 13), consequences tion” 3d at order avoid the 2, refusing of the Viola section and the misconduct 703— 1985, 5, evening February her on Green access to son holds that again thereafter reverses itself once majority arrest, stating: defendant was under is probable

“Defendant’s last on this issue that no argument him on his state- February cause existed to arrest because State’s and before Attorney ments to Assistant O’Donnell *** made day voluntarily. on that were not grand jury we cause existed probable Because have determined 5, on need address the February only to arrest defendant we 6.” 179 February of defendant’s statements voluntariness Ill. 3d at 13-14. App. deny, would state person, my judgment,

No reasonable record, of movement was re- liberty of this leave, stricted, he not free to he was “in when left custody” 5, 1985, at 1 and for the hours in p.m., his home thereafter, term has defined by station as that been 436, 444, 694, L. (1966), v. Arizona 384 U.S. Ed. Miranda we mean “By interrogation, 86 S. Ct. 1612: custodial person after a law enforcement officers has questioning initiated of his freedom of deprived otherwise custody been taken into that from the The trial court found any significant action in way.” But under arrest. moment left his home per- it is ignores legally issue whether majority totally which the arrest, before juvenile, a person particularly missible to hold under statements, counsel, incriminating and, without obtain grand jury, then use those from the same grand jury, an indictment procure I to lo- him at trial. have not been able same statements convict such cate, research, single authority approving one after extensive both the clearly violates prosecutorial misconduct which outrageous sixth and the fifth self-incrimination guarantee against amendment court, supreme from own A case our amendment counsel. right such a and, us, vehemently rejects course, flatly binding upon it. approves no сase which said, as I I can find procedure, and, have States United fifth the Constitution amendment *** criminal shall be compelled guarantees person that “[n]o V.) Arti- Const., amend. (U.S. himself.” against case to be witness I, per ele section of the Illinois Constitution provides “[n]o give against shall in a compelled son be criminal case to evidence v. Boone (Ill. I, §10.) People himself.” Const. art. In 148 Ill. the indicted for murder. N.E. defendant was Prior to the to the trial defendant indictment “based quash moved on the the and jail fact that the defendant taken from before was grand indictment, witness, the a jury which found the and sworn as (148 and as to the 446.) supreme examined homicide.” Ill. court of Illinois held: alleged

“The of assignment overruling error first is in indictment, to defendant’s motion the which was based quash fact on the that defendant from and jail was taken the exam ined as a witness before that grand found indict jury him, against ment and to was before compelled said testify grand jury regarding his or guilt innocence. That motion is supported by grand affidavit of the defendant. The jury court, a part constitutes of the and their official acts in find ing true bills or are ignoring bills on the of the borne records court, and witnesses sworn before that are sworn in body court, open not though necessarily in of the presence judge. By section 10 of 2 of article the constitution [Citation.] of of the State Illinois it is declared: person ‘No shall be com in pelled, any case, give criminal to against evidence himself.’ When disqualification of a in a defendant criminal case as a witness in his own case by was removed section of the Illinois, Criminal Code of it was a expressly provided ‘that in criminal or any proceeding case shall at his only request own competent witness, be deemed a his neglect to testify shall any him, not create against nor presumption shall the court permit any reference or to comment be made to upon or such neglect.’ Ill. Stat. Rev. ch. [Now par. The provision of the positive statute in 1.] 155— hibition of the constitution alike preclude right grand court, defendant, call jury, upon and, to in place, witness, first make him a him to require give against evidence himself. is of highest It of inter degree est, most important, preserve peculiar that excellence of the common law system which has never a pro allowed ceeding guilt inquisitorial. establish to be The affidavits in the record that show the defendant was taken from the jail where was in held custody, grand and taken before the very matter touching was examined on jury, where he him and grand against found an indictment jury which highest A character right which was trial. placed violated, by the constitu- privilege sacredly guaranteed a in the uni- tion and a innovation disregarded, dangerous if this A so it danger great, form State made. practice law, his rights, once a rule of that one ignorant became and, be, counsel and may danger, by it also unattended court, unprotected grand jury could be called before a and, believe, interrogated, compelled as he answer may subject investigation made him on matter charges against vital, that body, then in which his interest is we before will into the in- stop inquire question as whether alone, nor testimony dictment was found on that whether here, where, influenced the the defend- finding crime, ant with a and whilst so cus- custody charged subject about is taken from the be examined tody jail right It is that so was violated important matter. sufficient and a had where an indictment was found such proceeding under such circumstances. otherwise, not other any it does that appear

But were that this in which grand jury evidence was heard before not hold that where one is before dictment was found. We do witness, at that time is not charged the as a and grand jury crime, a mat interrogated with and be about may incidentally answer, ter, and an indictment afterwards to which he makes to him, the indictment be against require is found would is case where one before quashed; every nor do we hold a witness, interrogated about matter as a and grand jury indicted, be, itself, for afterward be would may which it But this case quash the indictment. sufficient cause other wit examined appear grand jury not that the does not found on the indiсtment was nesses, nor does it appear filed by are alone. No affidavits of the defendant evidence where, here, as question, on that attorney State’s from the be jail crime is taken with charged with matter interrogated about grand jury, fore the held crime, error must be such an charged he is which motion to It was error overrule the indictment. fatal to 448-50. 148 Ill. at the indictment.” quash 181, U.S. Washington (1977), as States v. Cases such United L. Ed. 2d 97 S. Ct. and In re J.H. 164 Ill. are not to the instant cause App. applicable N.E.2d for In nor Washington several reasons. neither In re J.H. was the defendant under grand arrest when taken before the Further jury. more, J.H., after noting In re that the defendant was not under arrest at the time he was taken the court grand jury, before noted, also allegations fourth, fifth, “While such and sixth amend ment violations an a may appropriate upon grant be basis which evidence, motion to suppress constitute they we do believe sufficient justification grand dismissal of the jury indictment the present (164 Here, course, case.” Ill. App. 724.) 3d at fourth, defendant’s motion was based fifth and sixth upon amendments, and it was a motion suppress evidence of state ments, not motion to quash Also, J.H., indictment. in In re there was additional evidence presented to the grand jury which re turned that indictment. The sixth amendment guarantees that “In all criminal prosecu- ***

tions, the accused shall right enjoy have the Assistance of Counsel for his (U.S. Const., defence.” VI.) amend. If the arrest of the defendant in his home was not supported adequate proba- cause, not, ble as I it believe was then the grand jury testimony should have been suppressed product of a fourth violation, amendment If, his illegal hand, arrest. on the other defendant’s arrest was supported cause, by probable as the trial held, judge so then section 703—2 mandates the procedures which must take in the case place of this juvenile.2

There simply is no statute or other authority which permits arrested juvenile be taken grand before a jury interrogated. Interrogation before a grand jury altogether distinguishable from interrogation in police station, assuming even assistant State’s Attorneys may violate section 703—2 with impunity. The long history of the grand back jury, extending more than 900 years, and rights grand witnesses before trace juries their evolution from the Magna Charta, and has been re- exhaustively counted in many (See Maitland, volumes. 1 F. e.g. Pollock & F. The History of English (2d 1923.) Illinois, Law ed. In special protections involving right to counsel which attach of appearance po- defendants, tential witnesses, to mere grand jury even are adults, proper procedure (Ill. 2 For is delineated in section 109—1 Rev. 1985, 38, 109-1). par. Stat. ch. of of Criminal 112—4 and 112—4.1 the Code set forth in sections 38, 4, 1987, ch. 112— (Ill. pars. Procedure of 1963 Rev. Stat. 112— 4.1). Those sections provide: already charged is an of

“Any person subpoenaed who Bill seeking is against Attorney fense whom State’s coun accompanied by of Indictment shall have the be right rights during proceedings shall him of sel who advise his any other Before testi may participate any way. not given person, such a he shall informed that mony be question has the refuse to answer that will tend right any used him, says against to incriminate be anything may law, he has the to be right accompa him a court of counsel, his that he nied and of will rights by advised if he have counsel for him cannot afford one.” Ill. appointed 38, 1987, 112—4. par. Rev. Stat. ch.

Section 112—4.1 provides: grand before the shall

“Any person appearing jury have him who advise to be counsel shall of right accompanied by not other Ill. Rev. rights participate way.” but shall 1987, 38, par. Stat. ch. 112-4.1. Boone, involving guarantee against if self-in People

Even v. books, right on the the sixth amendment crimination not would, amendment, prohibit com independently counsel fifth old, to most a 16 pelling (and particularly year an arrestee whom juveniles we could be special “easy owe care because victim[s] 228, Ed. law” v. 92 L. (Haley Ohio U.S. without appear grand jury before 303-04)), S. Ct. Illinois to advise them. The sixth above counsel amendment “target an unrepresented involuntary statutes that when require grand “target before the compelled appear jury witness” is stage” proceedings witness” is confronted with “critical him; critically it is advice is most against lеgal an occasion when in which the arrestee before proceeding appears needed.3 against rights guarantee self-incrimination 3 Many privileges other than the concerning grand jury appearance. may in a Volumes have been written be involved (See, e.g., Bryson, jury proceedings. & W. complex grand nature S. Beale Inc., (Callaghan 1986); Jury Project, of the Na Jury & Grand Grand Law Practice Guild, Lawyers Representation Before Federal Grand Juries tional Witnesses sophisticated (1985 1988).) intelligent and through me that the most It strikes even grand jury intelligently comprehend nuances of layman the intricate adult could supreme upon litigation legal recently, our court touched Just without assistance.

85 grand from the clearly has moved to the accusa- jury investigatory tory stage, and thus the witness” is confronted a “crit- “target ical of stage” prosecution a criminal such that he cannot intelli- of in the gently right except waive his the assistance counsel presence of counsel.

The Court of the United for re- Supreme many years States jected various to determine amend- opportunities whether sixth ment operates of fifth as to independently amendment so re- force, of quire, its own of evidence secured in suppression violation of example Moran v. Bur- right to counsel. for (See, bine (1986), 412, n.2, 410, 475 n.2, U.S. 428 89 L. Ed. 2d 425 106 v. 1135, n.2; S. Ct. Brewer Williams 387, 1145 (1977), 430 U.S. 405-06, 424, 441, 1232, 51 L. Ed. 2d 97 S. Ct. 1243.) Michigan v. In Jackson (1986), 625, 475 U.S. 89 L. Ed. 2d 106 S. Ct. Court held Supreme that where the defendants had been ar- raigned, counsel, and requested but were interrogated by police before they counsel, were able to consult with their statements were inadmissible being product the violation of their sixth amendment to counsel. right Supreme The Court emphasized that right defendants’ to counsel operated independently of the fifth amendment guarantee against self-incrimination, but refrained again from clarifying precise parameters of guarantee: each

“The State also argues that the Michigan Supreme Court’s finding of a valid Fifth Amendment waiver should require of a finding valid Sixth Amendment waiver. The relationship between the validity of waivers for Fifth and Sixth Amend- ment has purposes subject been the of considerable attention courts, in the and the commentaries In [citation] [citation]. view our holding the Edwards rule applies Sixth Amendment and that the Sixth Amendment requires the suppression of the postarraignment statements, we need not decide either the validity Fifth Amendment waiver *** in this case general relationship between Fifth and Sixth n.10, Amendment waivers.” 475 U.S. 635 89 L. Ed. n.10, 2d at 642 106 S. Ct. at 1411 n.10.

In the recent case of Patterson v. Illinois (1988), _, 487 U.S. 101 L. indictment, defendant, Ed. 2d 108 S. Ct. after complexity yet possible privilege potentially another heretofore available to grand jury Jury witnesses. See In re October 1985 Grand Number Ill. 2d 466. and, in rights waived his thereunder given warnings, Miranda of- counsel, made statements to incriminating the absence being he was held preparatory ficer station where divided 5 to County jail. justices transferred to the Cook being questioning issue of violated post-indictment on the whether such of the fifth right independently to counsel the sixth amendment self-incrimination, the majority holding right against amendment warnings “it our suffice Miranda’s view whatever in context of postindictment will also be sufficient the purposes at_, 276, L. at 108 S. at (487 101 Ed. 2d Ct. questioning.” U.S. on one 2398.) justices agreed proposition: But all nine of the protection Amendment’s attor- “[Bjecause Sixth as a “me- right rely counsel ney-client relationship—‘the and the State’—extends beyond dium” between [the accused] the Fifth Amendment coun- right Miranda’s protection there cases where waiver which would [citation], sel -willbe not for Sixth Amendment be valid Miranda wall suffice under _ n.9, 275 n.9, 487 U.S. at 101 L. Ed. 2d at purposes.” S. Ct. at 2397 n.9. 108 Patterson as to whether by majority

The test approved of the fifth amendment operates independently sixth amendment 300, 313, v. Ash 413 37 (1973), was lifted from United States U.S. 619, 2568, 2575, proce- is 628, L. 93 S. and whether Ed. Ct. with his at “the aid in requirefs] coping dure is one which accused Thus, meeting in his under legal adversary.” or assistance problems law, guard serve only if counsel would state of present his client a Miranda warn- against by statements self-incriminatory counsel is nec- to counsel. But if right sufficient to waive the ing is or assistance problems in with legal to aid the client “coping essary not waiver is suffiсient adversary,” in then Miranda meeting test, v. clearly the Patterson Illinois counsel. Under waive to coun- right his sixth amendment deprived Green was Charles right not of his fifth amendment sel, operated independently which counsel himself, he was arrested and -without to incriminate when at the moment he Clearly, County grand jury. taken before the Cook “ legal in coping room he ‘aid grand jury required entered the ” such, the adversary.’ As meeting or his assistance problems self-incriminatory his grand jury which warnings preceded Miranda at right to waive his to counsel insufficient testimony were grand jury. concept. new in In United States nothing is this

Actually, there 226-27, v. U.S. 18 L. Ed. 2d Wade 1926, 1932, S. Ct. the court pronounced: trial, at the accused addition counsel's presence

“[I]n at guaranteed stand alone the State against need not informal, formal or in court stage prosecution, out, ac- might where counsel’s from the derogate absence *** right cused’s to fair trial. *** It upon calls us to whether substantial analyze potential prejudice to con- rights particular defendant’s inheres in frontation and the ability of counsel to avoid that help preju- dice.”

There is in no reality substantial difference between this case (6th United States v. Doss E2d 1977), Cir. where a already who had been secretly by grand jury indicted grand called before the jury, given warnings, Miranda made subsequently answers to incriminatory questions put by him which prosecutor, and were used In- against him his trial. deed, it might be that the conduct argued Doss is some- employed what less reprehensible (1) because Doss grand admissions jury used the same grand jury to him indict (he already indicted); had been secretly (2) Doss was not under arrest when he appeared. court held sixth amendment been violated:

“Where substantial of calling an indicted purpose defend- ant before a grand jury question is to him secretly and with- out counsel present being without his informed of the nature and cause of the accusation a crime for which he about stands indicted, the already is proceeding an abuse of process which violates the right both counsel to provision Sixth Amendment process and due clause of the Fifth Amendment.” 563 F.2d at 286.

VI There is a final point be considered. The this police officers in case, took 16-year-old who this defendant from his home on Febru- 1985, ary 5, at 1 p.m., arrest, to the police station either under judge found, trial as the voluntarily, assistant State’s Attor- argued trial, ney or both under arrest as the ma- voluntarily, ruled, herein jority has did give not defendant his Miranda warnings either at his home or he being was held at the sta- while Elli- witness, George including Attorney Assistant State’s

tion. No on the eve- son, a statement from defendant who said took station, testified that 5, 1985, at the ning February police until Assist- warnings by his given anyone defendant was Miranda and the defendant confronted ant John O’Donnell Attorney State’s 6, 1985, at the crimi- February each other on late afternoon of was taken nal 27 hours after building, courts some the defendant record on reflects appeal from his home. The least one to As- and at police made several statements detectives latter, signed court Ellison a written (to State’s Attorney sistant station, police reported statement) on not or reflected their contents are contained those statements and the record. me in this disturbs frightfully of the serious which questions

One take a may and State’s Office Attorney’s case is whether home, his hold him at least hours incommunicado juvenile from of his deliberately4 his not advise the defendant family, from interrogate him, take “un-Miran- guarantees, Miranda constitutional him, take him grand dized” statements from then before a jury rights where he is advised of his asked to repeat Miranda statements, those previous grand “un-Mirandized” and then use jury procedure statements the defendant at his trial. If this against strictures, exception were as an to the Miranda such an permitted exception figuratively exactly would swallow rule. But what the record shows was done in this case. And State wit- nesses in their preposterous lengths “justify” went in- give their failure to Miranda admonitions this defendant. For Miller stance, Detective testified as a State witness on direct exami- nation that when the defendant was station handcuffed, his restricted in any “freedom movement” was not if manner, lodged him, he had charges against no do so. go wanted to home he would have been allowed to This “in course, custody” offered show that the defendant was not warnings no were required. and thus Miranda advisedly. Surely suggest “deliberately” no one 4 I use the word here would experienced police Attorney and/or Assistant State’s Ellison in 1985 detectives persons obligations to Miranda v. Arizona of their advise under were unaware duty obligation Ct. That L. Ed. 86 S. 1602. 384 U.S. recog placed Supreme upon is so well by law enforcement authorities Court comply totally conclude that the failure to it would be unreasonable nized purposeful. be other than with it could Miller, time Green “Q. Detective the entire that Charles 5, February at the station on 1985 was he handcuffed? A. No.

Q. Was his freedom of movement restricted manner any 5, on February 1985?

A. No.

Q. go If Charles Green home on February wanted let would have him home? you go A. Yes.

Q. On are you aware that Assistant State’s of Ellison came Attorney by George name police station?

A. Yes.

Q. you And are aware that he interviewed Charles Green? Yes,

A. I am. Q. Are you aware that after Assistant State’s Attorney George Ellison are spoke Green, to Charles aware you whether or not any charges filed the State’s Attor- ney’s Office?

A. charges No were filed.” On cross-examination the defense attorney showed Detective Miller a copy of an arrest report bearing his signature own and he was asked:

“Q. Directing your to Box attention that state does date and of time arrest? Yes,

A. it does.

Q. What is date and time arrest? A. This states its the 5th 1985 at 1300 February, hours which is 1 o’clock the afternoon.

[*] * * Q. Do you know whose it responsibility prepare arrest report?

A. It could have been our responsibility. Primarily mine.”

Detective Miller was then shown two-page supplemental report which stated that the taken custody” defendant was “into on Febru- 5, 1985. ary Detective Miller then testified:

“Q. Did you prepare that report?

A. Yes.

Q. You prepared it? portion

A. Yes. 5, 1985; is that

Q. custody February in on Mr. Green was correct? speaking.

A. In a manner of no, he in Q. custody? Yes or was A. Yeshe was.” have been that Detective Miller would thought have might

One reports, of his own himself from the strictures to extricate unable himself a mas- task, doing proved and in so to the equal English language: ter contortionist in a say what mean when “Q. you you Detective Miller do 5, 1985 in custody manner of he was speaking Green? referring Charles ” in a police presence policefacility. A. He was in of the United history in the entire no decision Unquestionably Court, sphere, in the constitutional-criminal at least States Supreme 436, 444, (1966), 384 U.S. Miranda v. Arizona is as known as well 1602,1612, 706-07, which holds: 86 S. Ct. 16 L. Ed. 2d statements, exculpa- whether may not use prosecution “[T]he interrogation from custodial stemming or tory inculpatory, procedural the use of it demonstrates unless the defendant self-incrim- against the privilege effective to secure safeguards initi- mean questioning we interrogation, ination. custodial By a has been person officers after law enforcement ated of his freedom otherwise deprived into or custody taken *** questioning, Prior to any significant way. action in any remain si- right that he has a must warned be person used as evi- may make be statement he does lent, that any to the right presence has a him, and that he against dence appointed.” either retained attorney, Court deci- Supreme States of the United I aware am of course 298, 84 L. Ed. U.S. (1985), 470 v. Elstad Oregon sion burglary investigating Elstad, police In S. Ct. 1285. home, room of living In the home. went to the defendant’s the defend- kitchen, asked the officer in the mother with defendant’s warnings, Miranda his the defendant ant, giving first without When the name of Gross. person by knew a defendant whether the at robbery there he had heard stated the defendant he felt the told the defendant house, officer the Gross stated the defendant robbery, was involved defendant 227, 105 S. 2d at L. Ed. U.S. at (470 I there.” “Yes was 1289.) Ct. at The was then sta- transported of his Miranda tion, full rights, subsequently gave advised Supreme confession. Under these facts the Court held that fail- the defendant Miranda ure give warnings the defendant’s home made did not taint confession after the defend- subsequent to Miranda v. Arizona. believe the El- ant I was advised pursuant stad holding cause for reasons. inaрplicable present be two First, me it is obvious to the defendant’s statements Febru- 6, 1985, ary station to his be- prior appearance fore the grand jury again, the record does not reflect what those — old, statements years were —were defendant was 16 involuntary. in strange, unfamiliar surroundings, questioned length by adult (police assistant Attorney) State’s about homi- strangers brutal cides, not advised of mother guarantees, constitutional de- right him, nied the to see counsel, officer, provided juvenile or taken a The before court. Court has held Supreme that lack Miranda of is warnings significant “a factor” in determining v. North (Davis Carolina of a voluntariness confession. (1966), 384 740, 737, 898, U.S. 16 L. Ed. 895, 1761, 1764.) 2d 86 S. Ct. The fol- lowing language from recent unanimous holding United Crane v. Kentucky (1986), 476 U.S. States in Supreme 683, Court 687-89, 636, 643-44, L. 2142, Ed. 2d 106 2145-46, S. Ct. is di- rectly applicable:

“It is by now well established that ‘certain interrogation isolation, techniques, either in applied or as the unique characteristics a particular of are so suspect, offensive of system justice civilized that they must be condemned under the Due Process Clause of the Fourteenth Amendment.’ Miller v. Fenton (1985), 109, 104, 405, 474 U.S. 88 L. Ed. 2d *** 410,106 445, S. Ct. 449.

*** ^{[**] [*]} [T]he circumstances surrounding taking a con- fession can be highly separate to two relevant one inquiries, legal and one factual. manner in The which a statement was is, course, extracted relevant purely legal question of its voluntariness ***. physical psy- But [Citation.] chological environment also yielded the confession can be of substantial relevance to the ultimate factual issue guilt or innocence.” It also must be kept mind the burden of proving that a was voluntary confession is on the (Ill. 1985, State. Rev. Stat. ch. if Miller’s be 38, 11(d).) Even Detective par. 114 — he if leave, credited that told the defendant that he was free to this, would, Miller had he stigma- told be necessity duties, according tized as “remiss” in his to the State’s brief filed in this court. This case at bar a clear of an officer to turn a

“presents picture attempting interrogation custodial into a noncustodial one by repeating the defendant was free to leave. It litany apparent mentality that even one of defendant’s would have felt the op confession; posite; he knew that had made an oral it belies all human in that the authori experience say posture the case. Miranda warnings ties would lose interest should given. have The of official miscon purpose flagrancy been apparent. People v. Smith Ill. (1980), App. duct are 3d rev’d on other grounds 1281, (1982), 414 N.E.2d 93 Ill. People Berry (1984), v. 2d 442 N.E.2d 1325.” 123 Ill. 1042, 1046, 1044,1048. App. 3d 463 N.E.2d Elstad on this In In Two distinguished recent cases have basis. re T.S. defendant, N.E.2d 151 Ill. App. of Miranda old, a 15 made an oral confession without benefit year Later, the statement was defendant was warned of warnings. typed, Miranda signed his and he the statement. written guarantees, after the unwarned oral given immediately statement which was of the oral statement. As was a “mere reiteration” statement station alone bar, at the defendant was taken to a case car; attorney or an accompanied by parents he was not squad station; he was ini although during interrogation that he did not really free to he testified go, informed tially Elstad, v. distinguishing Oregon In believe that this was true. court in In re T.S. held: Elstad between distinctions significant

“There are several Elstad, warned First, respondent’s at bar. and the case re- yet volunteered an unwarned by preceded was confession confession written warned Here, however, defendant’s mark. Further, confession. oral an unwarned preceded by was admis- own was, the detective’s by here written confession Sec- confession. oral the previous sion, ‘mere reiteration’ a Miranda administer Elstad failure to a ond, ‘simple involved other coercion” actual “any by unaccompanied warnings, ability suspect’s to undermine calculated circumstances however, there is case, In the present his free will.’ exercise which sug amount of unrefuted evidence would considerable Third, Elstad, and intimidation. unlike in re gest coercion here immediately written statement followed spondent’s oral an full, detailed statement. From examination of ‘sur entire rounding circumstances and the course of con statements, respect duct’ with to both we con respondent’s of interrogation (Oregon clude that the manner was coercive. 298, 84 v. Elstad 470 U.S. L. Ed. 2d S. Ct. Further, 1285.) due to coercion and tactics used improper statement, an obtaining unwarned oral the administration warnings immediately prior Miranda to the written state cure ment did not the condition that rendered the oral state Ill. at App. ment inadmissible.” 151 353.

In v. 160 Ill. People Hagar (1987), App. 3d 513 N.E.2d defendant, old, years questioned DCFS by investigators. investigator DCFS testified that under Department policy he, State law as a DCFS not investigator, was required give Miranda to an warnings arrestee. The defendant’s statement to the DCFS investigator was made in a custodial environment at Office, DCFS not defendant’s home. After giving both oral and written statement to the investigators, DCFS the defendant was then questioned investigators sheriff’s who did give the defend ant warnings. Miranda After 45-minute interview the defendant made a statement of his to the guilt investigators. Sheriff The Ha gar court held second statement investiga sheriff’s tors, though preceded by Miranda warnings, inadmissible, distin guishing Oregon v. ground Elstad the unwarned previous statement to the DCFS investigators was voluntary.

I cannot accept proposition holding that the Elstad may be into converted a license to induce an arrestee to make incriminating Elstad, statements. Unlike the failure to administer Miranda warn- ings here was a deliberate to permit authoritative scheme calculated the police and State’s Attorney to interrogate juvenile who was purposely kept ignorant Then, of his constitutional guarantees. once having statements, obtained the defendant incriminating was advised of his warnings, repeated incriminating Miranda those answers grand before the which indicted him. jury subsequently that, It is use thus revealed another well-worn metaphor, the State “cat and mouse” with the constitutional played guarantees of this unrepresented boy right up Oregon to the end. v. Elstad clearly stands for the proposition that mere inadvertent failure of not for- does rights of his Miranda to advise the defendant given after he has been defendant’s statements ever contaminate However, applied the correct rule to be warnings. appropriate more re- that announced of police deception case deliberate 88 L. Ed. 2d v. Moulton U.S. cently Maine 477, 487, the court said: 481, 496, S. Ct. where by not “Thus, Amendment violated the Sixth whenever— state- incriminating State obtains happenstance luck or —the has at- right counsel ments from the accused after However, the State knowing exploitation by tached. [Citation.] be- without counsel the accused opportunity confront of not obligation the State’s is as much breach ing present of as is the assistance counsel right to circumvent opportunity. Accordingly, such an intentional creation of incrimi- State Sixth is violated when the obtains Amendment accused’s knowingly circumventing nating statements confrontation between counsel right present to have added.) agent.” (Emphasis a state accused and courts the from the gained approbation deceptive practice If this simply I have complete. desiccation of Miranda v. Arizona would be contradictory and such authority remotely approves seen no which stratagems. diabolical

VII

Conclusion sum, any jurisdiction from authority In there is no simply 16-year-old to arrest a I aware permits which am which station, per- his mother home, deny him to the police in his take boy con- of his him, ignorance him purposely keep mission to speak counsel, against self-incrimina- silence guarantees stitutional hours, juvenile police him before a tion, him for 27 not take hold instead, take require, State statutes but or a court as the officer counsel, self-in- elicit and without benefit grand jury, him before a the evi- only from him constitute statements which criminatory him, also consti- indicted grand jury which the same upon dence procedure trial. The him at evidence which convicted only tutes the by representatives employed this record to have been shown by and the stat- the Constitution uphold the State of Illinois sworn Charles violated abusively Illinois flagrantly of the State of utes Green’s constitutionаl and statutory rights.

Horrible, atrocities were inflicted the victims in despicable upon Horrible, case bar. atrocities were likewise inflicted despicable upon the constitutional of this But the former rights defendant. never the latter. The sets forth the justifies majority opinion fully latter, former. I have to in similarly endeavored herein reveal part, I am a firmly because convinced that sure of consti- protection tutional an freedoms is of their violations. Ac- adequate exposure I vigorously dissent from the of the defend- cordingly, affirmance ant’s convictions. TO

ADDENDUM ORIGINAL DISSENTING OPINION ON DENIAL OF DEFENDANT’S PETITION FOR REHEARING. If there existed molecule of doubt the assessment in my dissenting opinion of appointed performance counsel’s de- grossly harsh, ficient was too perhaps counsel’s “Petition for Rehearing” has every obliterated iota of I uncertainty. went to considerable length my in dissenting out opinion point on ap- record peal was incomplete in considerable disorder. I had hoped, even expected, that defendant’s counsel appointed would have made a Instead, conscientious this attempt rectify situation. defendant’s appointed counsel done nothing. has

Additionally, defendant’s counsel’s “Petition for Rehearing” fails to discuss or even mention the by inconsistent taken positions State in the trial court and in this court the defendant’s motion to suppress. Nor does it discuss the confusing and incoherent “find- ings” of the trial in court denying defendant’s motion sup- press. petition for rehearing does not discuss the impropriety the trial judge’s consideration and reliance upon testimony of Davis, James in given a totally different trial court proceeding which this defendant was or even party present, denying the defendant’s motion to suppress.5 egregious

Most of all is the failure of the defendant’s appointed counsel to even mention in the defendant’s for petition rehearing gross impropriety taking assistant State’s Attorneys this recently specifically 5 I one note sister has our courts ruled that it was rely upon testimony, given error for trial court former when even suppress. People (1989), App. defendant’s own motion to See v. Brown 177 Ill. 671, 673, 532 N.E.2d 547. youth grand extracting before a thereat a self- unrepresented jury, him; from sidetracking grand ju statement inculpatory adroitly defendant; prosecuting ror’s and then the defend questioning grand using ant on indictment returned the same by jury an procured grand defendant’s to con unconstitutionally jury to cite Boone v. The vict him. counsel’s failure Perhaps appointed 99, in ex People original 148 Ill. 36 N.E. his brief Boone. No subse plainable longevity and attributable determine) has since (as far as I am able to quent Attorney State’s and, advent of Boone such tactics there attempted despicable counsel’s research failed to uncover Boone. fore, But ap perhaps discuss Boone failure to and its pointed applicability counsel’s made petition rehearing, now that counsel has been of Boone I dissent, grossly is so derelict can by my only aware different justice process conclude that due demand that counsel and defendant given opportunity fairly litigate be appointed competent case with the of and by represen the issues benefit tation. minor, in ed-

I involved this cause is of limited again stress matters, ucation, legal ignorant of his constitu- in unsophisticated I read counsel’s lead rights. appointed tional and When statutory revealed, on my orig- it to the record compared appeal brief and what or either did not know did not care about inal belief was counsel the involved in this defendant’s unusual legal highly appeal. issues reading petition for it has become rehearing, But after obvious the latter. me that the alternatives have been narrowed to on, rehearing’s rely the for failure to petition Also egregious in positions mention the State’s inconsistent or even argue, discuss the officers did not have to ar- probable cause (1) the trial court that: (a) defendant was not under arrest defendant; (2) the rest the 5, 1985, (b) his home on February when the officer took him from at the 27-hour, overnight stay incommunicado the during station, permission his mother was refused (c) during which grand him, jury, taken before the (d) see when was thereafter time, before taken for the first positions, the State’s contrary officers did have cause for review, (1) probable court of that: this did arrest in his arrest; the defendant (2) officers the defendant’s was thereafter 1985; the defendant (3) home on conspicuously in bar is silent the case at majority arrest. The under in- legally impermissible mention these absolutely no and makes Thus, only inconspic- has not majority the State. by consistencies but in mid- uously, improperly, change allowed the State horses dle of the stream the trial court and the court appellate between upon that the horse it it to learning riding carry was could also, shore, desired affirmance but has additionally, majority as just improperly and allowed the State equally inconspicuously, to mount an inconsistent and different horse and ride in an inconsis- stream, tent and different in an inconsistent and different direction to an inconsistent and different affirmance shore.

I am constrained out the recent of this point decision court in v. People Walker 177 App. Ill. 3d 532 N.E.2d 447. Walker filed a motion to evidence was suppress by which denied trial court. In his motion to suppress, urged Walker that his warrantless arrest in his home was illegal. State, On his appeal the first time, urged that the entry officer’s into Walker’s home with the consent of Walker’s mother. Serendipitously, appeal Walker heard panel identical who justices heard the instant appeal. Moreover, the justice same authored both the majority opinions in Walker and in the instant the same appeal, justice concurred in Walker, both. I in have dissented both. In wrote: majority “It that the appears State raised the question of a consen arrest sual for the first A appeal. time on prevailing party may raise, in of a support judgment, any reason appearing in the [citation], record although this rule does not apply when the new theory is inconsistent with the position adopted below the party has acquiesced contrary findings. [Citation.] record court below disclosed that hearing the initial re probable volved around cause to arrest rather than consen sual nature the entry. The State did not argue in the trial theory court a position inconsistent with its in this court. Therefore, we no find basis the record to reverse the trial court’s denial of defendant’s motion to even suppress though the consent issue argued appeal.” was first 177 Ill. App. 746, 532 N.E.2d at (Emphasis added.) 448-49. I asserted, alia, dissented Walker and inter State should not a permitted upon ground i.e., be to rely on con- appeal, sent, from it ground upon different which relied in the trial i.e., court, probable cause, to validate a warrantless arrest. As I read Walker, the majority’s decision in the rule announced therein is that the State assert a different on may theory appeal when State “[t]he did not in argue the trial court a theory inconsistent posi- with its court," tion this in the “new provided [appeal] is theory in- [not] 3d at (177 App. below.” Ill. adopted the position consistent with urged by Yet, positions in the instant cause 448.) 532 N.E.2d at antago are they merely are not appeal the State on “inconsistent”— positions degrees, by diametrically opposite, nistic and cause stated, in the instant As in the trial court. the State urged by did not have that the officers trial court asserted in the the State and that the defendant arrest for the defendant’s probable cause all; station, or at whereas home, the police in his not arrested time, first officers for the conversely urges, State appeal ar and that the officers arrest cause for had probable in his home. rested the defendant in the in- opinion the majority in Walker and majority opinion

The fastidi- reader will precise reconciled. Even stant cause cannot be in to dis- in the instant cause vain opinion the majority ously peruse “inconsistent theory new urged appeal that the State cern as below,” ruling, Walker majority’s avoid adopted the position noth- absolutely case says in the instant majority above. quoted faced the Stаte’s majority in At least Walker ing on this issue. However, ruling. rendered its a decision and double-dealing, made State has vio- that the incontestably establish here, the facts where is si- majority completely the same ruling, Walker majority’s lated lent. not deference, misguiding only is unfair and this all due

With as Trial as well judges and bar. defendant, to the entire bench but only court opinions published appellate look to litigators for and touchstones cases, guideposts also as in the particular law and women reasonable men While cases and controversies. future decisis, decisis stare certainly of stare on the limits disagree may fidel- some system. Surely judicial rule to our play does have some in Green opinions ‍‌​‌‌​‌‌​‌‌‌‌​‌‌‌‌‌​‌‌​​​​‌​​‌‌‌​​​​‌‌‌‌‌‌‌​‌​‌​‌‍The majority consistency owed. ity to create going if this court is Certainly irreconcilable. Walker are between gigantic proportions such change of legal such a drastic a defendant i.e., “sandbag” Walker, the State permit Green courts appellate the trial and theories between switching adverse conviction, forthrightly so ought say this court order to affirm no uncertain terms. coun- other rehearing appoint petition

I grant would sel to the defendant. represent did not remember Detective made notes their Davis’ state- why conversation with Davis. reason writing given ment was not reduced to to Davis to re- “it is not don’t—it sign necessary. view and was because We something is don’t have to do.” you He not tell Davis that if he cooperated did with investi- he gation possibly help regard could Davis with time; criminal matters that Davis had at that nor did he have criminal matters any knowledge any pending Davis at that time. approximately p.m. his statement at Feb- gave Davis 3, 1985, an hour. Then he and it took about half ruary re- prepare any reports drove Davis back home. He did Davis, review a re- the interview James but did garding after it was typed by of the interview James Davis port Capesius. Detective High Monday February “proba- to Orr School on He went name of the morning.” person He did not recall the bly School, was an as- High person to at Orr spoke a male and he told them that person, It was principal. sistant Virgil Bridges.” “Virgil probably morning met on the Virgil Bridges He first at 10 11 a.m. He met him at his home but he not re- did member his address. went there with Capesius, He Detective 4,” “he him asked if he would come us Area

Notes

Q. Did you observe Detective Capesius make any notes while he was while interviewing or you interviewing Mr. Davis? A. I remember, don’t sir. Q. Is there reason why didn’t you reduce the state- ment writing give it to Mr. Davis to review and sign? A. It is not necessary. Q. is it not Why necessary? A. It is necessary. don’t—it is We don’t something you have to added.) do.” (Emphasis Thus, on cross-examination—and direct contradiction to his misrepresentations direct examination—Detective Summerville ad- mitted that the person to whom allegedly James Davis referred as being House, possessing with Derrick handguns, the con- having versations, smoking Green, sticks,” etc. was not “happy Charles as examination, Charles, had stated on his direct but one Little that he hadn’t description bothered write down of Little Davis’ Charles. Nor could he If remember it. Davis’ fit alleged description courtroom, or ap- as he Charles Green as seated appeared home peared Detective Summerville went when 5, 1985, Detective would have certainly Summerville Moreover, offered that Davis identi- said so. no ever defendant, defendant, the Little picture being fied as fact, In not one witness allegedly spoke. Charles about whom Davis having the sobriquet court identified the defendant ever used attempt Detective Summerville’s “Little Charles.” Over and above that Davis said by falsely testifying mislead the court

did not all notes get its down.” The (Emphasis added.) court, ap- “No written parent disbelief, Attorney, said to the State’s assistant statement? Is this correct?” added.) To the assist- (Emphasis which “I stated, ant State’s believe so. I believe when the court Attorney made its it ruling might have the written statement confused Virgil Bridges. Virgil Bridges, made written statement.” (Em- concluded: “I phasis court added.) trial then compromisingly will tentatively have vacate these least until I have findings them, it together.” until stands added.) (Emphasis Next, attorney findings defense asked for factual re-

Case Details

Case Name: People v. Green

Court Name: Appellate Court of Illinois

Date Published: Nov 14, 1988

Citation: 535 N.E.2d 413

Docket Number: 86-1019

Court Abbreviation: Ill. App. Ct.