People v. Fuller
Annotate this Case
FOURTH DIVISION
SEPTEMBER 18, 1997
No. 1--95--2112
THE PEOPLE OF THE STATE OF ILLINOIS,
Plaintiff-Appellee,
v.
SHAWN FULLER,
Defendant-Appellant. )
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) Appeal from the
Circuit Court of
Cook County
No. 93--CR--2858
Honorable
James P. Flannery,
Judge Presiding.
JUSTICE CERDA delivered the opinion of the court:
Defendant, Shawn Fuller, 14 years old, was transferred from
juvenile court to the criminal court to be prosecuted for first-degree
murder. 720 ILCS 5/9-1 (West 1992). After a jury trial, he was found
guilty and was sentenced to 35 years' imprisonment. On appeal,
defendant asserts that (1) his transfer from juvenile court to the
criminal court was an abuse of discretion; (2) the trial court erred
in failing to quash the arrest and suppress the evidence; (3) his
confession was involuntary; (4) the trial court erred in failing to
excuse two prospective jurors for cause; (5) the jury should have been
instructed on the lesser offense of involuntary manslaughter; (6) the
State's closing argument remarks were prejudicial; (7) the trial court
abused its discretion in failing to honor the jury's request for a
transcript; (8) an allegation of juror coercion entitles him to an
evidentiary hearing; and (9) his sentence was excessive.
At the juvenile court hearing to determine whether defendant
would be transferred to the criminal court, Chicago police officer
Gary Horacek testified that he responded to a call of a man shot at
12:25 a.m. on November 8, 1992. When he arrived at 50th and Campbell
Streets, Chicago, he saw the victim, George Bonk, who had died of
multiple gunshot wounds. Officer Horacek interviewed several
neighbors, who stated that they heard three gunshots, but did not see
the shooting.
Chicago police detective Nicholas Crescenzo testified that he
spoke to Theresa Zielinski at 2 a.m. on December 11, 1992. Zielinski
told him that she was at defendant's house on the night of the
shooting. Shortly after midnight, defendant returned home in a black
car driven by someone named Johnny. Defendant, who was nervous and
panicky, told Zielinski that he had been shooting at rival gang
members when he shot a bystander by accident. Defendant told
Zielinski to spread the word around the neighborhood that someone else
was the shooter.
Crescenzo further testified that after interviewing Zielinski,
Crescenzo and his partner arrested defendant, advised him of his
Miranda rights, and told him that he could have his parents present.
Defendant told Crescenzo that on the night of Bonk's murder, he left a
gang meeting in a black Buick with a fellow gang member named Johnny.
After getting a gun and ammunition, Johnny put the gun under the car's
front seat so that he could pull it out quickly if they saw rival gang
members. As they were driving west on 50th Street towards Campbell,
they saw rival gang members, who yelled insults. Johnny pulled out
the gun, put in the clip, and handed it to defendant, saying, "[C]ap
'em, cap 'em!" Defendant took the gun, leaned out the car window, and
fired at the rival gang members. The next day, he learned that
someone had been killed.
Jean Marie Zupan, defendant's probation officer, described
defendant as having an above-average intelligence, no educational
problems, and being academically capable and talented. However, he
was a severely emotionally disturbed and violent person who came from
a violent, severely unstable, dysfunctional family. Although Zupan
thought defendant was a danger to himself and to others, she also
stated that he was eager to get attention and praise from adults and
did well in one-on-one therapy.
It was Zupan's opinion that defendant's problems resulted from
his upbringing and family situation. Because his home was not an
appropriate place for defendant, Zupan recommended that he stay in the
juvenile system where he could get mental health residential services.
She thought that he should be placed out-of-state to avoid contact
with his family.
Zupan explained that defendant had previously attended behavior
disorder programs at five schools. For nine months in 1991, he
attended a residential program at the Mill School in Rockford.
Initially, he was very disruptive and had to be restrained several
times, but eventually he made progress. Unfortunately, his father
refused further residential treatment and defendant went home.
Defendant then attended Oak Therapeutic Day School for eight weeks. A
social worker there told Zupan that defendant had learned how to
manipulate therapy to give the impression of compliance without any
real progress.
In 1992, defendant was admitted to Children's Psychiatric
University Hospital after he threatened to kill himself and his
father. The hospital social worker told Zupan that defendant was
initially non-compliant, but then progressed and responded well to the
structured environment. At the time of his arrest, defendant was
attending Hillside Day Academy.
Defendant told Zupan that he joined the Campbell Kings street
gang when he moved into his neighborhood in April 1992. Prior to his
arrest, defendant stayed in the house most of the time because he was
afraid to go outside. Previously, in 1989, he had been in the
Disciples street gang for five months, but quit after being shot with
a BB gun and harassed by other kids.
Defendant had six station adjustments: disorderly conduct in
December 1987; criminal trespass to property in April 1989; assault in
May 1989; criminal trespass to property in July 1992; a racial
incident and mob action in August 1992; and a gang adjustment in
September 1992.
Responding to the court's questions about the availability of
long-term residential programs for juveniles, Zupan stated that there
was a possibility that defendant would go home if none were available.
Zupan did not know what residential programs were available for
defendant as an adult or whether defendant's father could be precluded
from regaining custody of defendant. Zupan explained, however, that
defendant could be declared a ward of the court, which could monitor
his treatment and place him wherever it saw fit, thus preventing him
from returning home.
Douglas Cater, a social worker at the McKinley Intervention
Services, testified that he had been counseling defendant's family for
a year prior to Bonk's murder. Cater described defendant's family
life as chaotic with little nurturing and much bickering and fighting.
Cater had not seen much improvement while he was working with the
family.
According to Cater, the principals at defendant's schools liked
defendant and wanted him back. Cater thought it was in defendant's
best interest to be in a residential treatment institution where he
could get regular intensive psychological counseling. Defendant had
told Cater he was recruited into a gang in May 1992 by someone who was
nice to him. Cater felt that defendant was vulnerable to that type of
influence due to his family situation. After defendant was badly
beaten by rival gang members in August 1992, he was afraid to go
outside. As a result, he stayed home most of the time and developed a
vocal tick. Although defendant had soured on the gang life, he
remained a gang member to receive protection and because he was afraid
that his own gang would hurt him if he tried to get out. It was
Cater's opinion that defendant is very intelligent, has much
potential, and should stay in the juvenile system since he is very
cooperative when he is nurtured.
After arguments, the juvenile court granted the State's motion to
transfer defendant to the criminal court. In its findings, the court
found that there was sufficient evidence upon which a grand jury would
be expected to return an indictment, there was evidence that the
offense was committed in an aggressive and premeditated manner,
defendant was 14 years, 8 months old at the time of Bonk's murder, and
defendant possessed a deadly weapon when he committed the offense. In
reviewing defendant's prior history, the court concluded that it was
sufficient to warrant a transfer. Finally, the court considered
whether there were facilities available for defendant's treatment and
rehabilitation and whether the best interests of the minor and the
security of the public would require that defendant continue in
custody after his 21st birthday.
Defendant asserts that his transfer to the criminal court was an
abuse of discretion, which defied the recommendation of every witness.
Defendant maintains that the trial court erroneously believed that his
father would invariably retain legal custody, thus enabling his father
to sabotage his progress, unless he was prosecuted under the criminal
laws.
Section 5-4(3)(a) of the Juvenile Court Act of 1987 (705 ILCS
405/1-1 et seq. (West 1994)) permits criminal prosecution of a minor
at least 13 years of age for any offense if, upon the motion of the
State's Attorney, a juvenile court judge finds that it is not in the
best interests of the minor or of the public to proceed under the
Juvenile Court Act. People v. Beck, 190 Ill. App. 3d 748, 753, 546 N.E.2d 1127 (1989); 705 ILCS 405/5-4(3)(a) (West 1992). The purpose
of any transfer proceeding is to balance the best interests of the
alleged juvenile offender, particularly as those interests relate to
his potential for rehabilitation, against society's legitimate
interest in being protected from criminal victimization by minors.
People v. Clark, 119 Ill. 2d 1, 12, 518 N.E.2d 138 (1987).
Section 5-4(3)(b) of the Juvenile Court Act of 1987 lists several
factors that a juvenile court judge must consider in deciding whether
a minor should be prosecuted as an adult. In re R.T., 271 Ill. App.
3d 673, 677, 648 N.E.2d 1043 (1995); 705 ILCS 405/5-4(3)(b)(West
1992). Although the juvenile court's inquiry is not limited to the
statutory factors, the court must at a minimum consider: (1) whether
there is sufficient evidence upon which a grand jury may be expected
to return an indictment; (2) whether there is evidence that the
alleged offense was committed in an aggressive and premeditated
manner; (3) the age of the minor; (4) the previous history of the
minor; (5) whether there are facilities available to the juvenile
court for the minor's treatment and rehabilitation; (6) whether the
best interests of the minor and the security of the public require
that the minor continue in custody or under supervision for a period
extending beyond his minority; and (7) whether the minor possessed a
deadly weapon when committing the alleged offense. 705 ILCS 405/5-
4(3)(b)(West 1992). Finally, the judge weighing these relevant
factors must determine whether to strike the balance for society by
transferring the alleged juvenile offender, or to strike the balance
for the juvenile by retaining jurisdiction. Beck, 190 Ill. App. 3d at
755, citing Clark, 119 Ill. 2d at 14.
In a transfer hearing, the State has the burden of presenting
sufficient evidence to persuade the juvenile court to grant a motion
to transfer. People v. Taylor, 76 Ill. 2d 289, 304, 391 N.E.2d 366
(1979); In re L.J., 274 Ill. App. 3d 977, 979, 654 N.E.2d 671 (1995).
Although no single factor is dispositive, equal weight need not be
given to all the factors. Taylor, 76 Ill. 2d at 305; People v. Cooks,
271 Ill. App. 3d 25, 39, 648 N.E.2d 190 (1995). The State must only
present evidence sufficient to persuade the juvenile court, in its
discretion, that transfer is justified in light of the statute.
Cooks, 271 Ill. App. 3d at 39. It is not necessary that all factors
be resolved against the juvenile. Cooks, 271 Ill. App. 3d at 39.
The role of the appellate court when reviewing transfer cases is
to determine whether, in evaluating the evidence in light of the
statutory criteria, the juvenile court has abused its discretion.
Taylor, 76 Ill. 2d at 300-01; In re R.T., 271 Ill. App. 3d at 677. We
find that the juvenile court did not abuse its discretion when it
transferred defendant to the criminal court.
The first factor to consider is whether there was sufficient
evidence introduced at the transfer hearing upon which a grand jury
could be expected to return an indictment. The factors to be
considered require only a probable cause standard of proof. Taylor,
76 Ill. 2d at 303; In re R.T., 271 Ill. App. 3d at 679; Cooks, 271
Ill. App. 3d at 39. Given the facts of this case, there was
sufficient evidence introduced at the transfer hearing.
The second factor is whether the evidence shows that the alleged
offense was committed in an aggressive and premeditated manner. The
record contains evidence that this murder was committed in an
aggressive and premeditated manner.
The third factor is defendant's age, which was 14 years 8 months
at the time of Bonk's murder. Since fifteen-year-old minors are
automatically tried as adults for first-degree murder, defendant would
have automatically been tried as an adult if the murder had occurred
four months later. 705 ILCS 405/5-4(6)(a) (West 1992).
The fourth statutory factor that the court must consider is the
previous history of the minor. In this case, defendant had a very
troubled home life, wanted approval from adults, and was looking for
security. He had attended five behavior disorder programs since he
was in elementary school, but his father refused to place him in any
more residential treatment programs, which had helped him in the past.
Defendant joined a gang for five months when he was 11 years old, but
left. Again, when he was 14 years old, he joined a different gang,
but became afraid after being beaten up by rival gang members.
In addition, defendant had six station adjustments, or verbal
warnings from the police, which are relevant considerations at a
transfer hearing. Beck, 190 Ill. App. 3d at 758-59. A station
adjustment occurs when the police take a minor to the police station,
but release him after deciding not to prosecute. People v. D.B., 202
Ill. App. 3d 194, 203, 559 N.E.2d 873 (1990).
The fifth factor is whether there are facilities particularly
available to the juvenile court for defendant's treatment and
rehabilitation. The statute requires that the juvenile court receive
and evaluate information about the facilities available for the
minor's treatment or rehabilitation. Clark, 119 Ill. 2d at 17.
Although the testimony regarding available treatment facilities was
confusing, the judge examined the possibilities for defendant's
treatment as a juvenile and as an adult.
The sixth factor is whether the best interests of the minor and
the security of the public require that the minor continue in custody
or under supervision for a period extending beyond his minority. This
factor is actually a balancing of the other factors.
The final factor at the time of defendant's transfer hearing was
whether the offense was carried out with a deadly weapon. Since the
victim was shot with a gun, that factor supports defendant's transfer
to the criminal court.
After considering the statutory factors for transfer, we find
that there was no abuse of discretion. The judge considered all the
relevant factors and was particularly aware of defendant's emotional
problems and past treatment. This court cannot reweigh all the
factors, but must decide whether there was an abuse of discretion.
Taylor, 76 Ill. 2d at 300-01; In re R.T., 271 Ill. App. 3d at 677;
Cooks, 271 Ill. App. 3d at 39. We find no abuse of discretion.
Next, we consider whether the trial court erred when it denied
defendant's motion to quash arrest and suppress evidence. Defendant
argues that the police lacked probable cause to arrest him because the
arrest was based solely on unreliable information obtained by police
coercion and overt threats against Theresa Zielinski during their
overnight interrogation of her. Furthermore, defendant argues, her
statement was uncorroborated.
The State argues that the trial court's denial of the motion to
quash arrest was not manifestly erroneous because Zielinski's
information was trustworthy and reliable even though she testified at
trial that she did not want to speak to the police.
Whether or not probable cause for an arrest exists depends on the
totality of the facts and circumstances known to the officers when the
arrest was made. People v. James, 118 Ill. 2d 214, 223, 514 N.E.2d 998 (1987). If an informant is the source of the information, as in
this case, an independent showing of reliability is required because
of the obvious risk of misrepresentation or outright fabrication.
James, 118 Ill. 2d at 223. However, the court looks to the
informant's reliability as only one of the factors to be considered in
the totality of the circumstances approach. People v. Adams, 131 Ill. 2d 387, 546 N.E.2d 561 (1989).
While the basis of the informant's knowledge is relevant, the
central issue is not whether the informant is an ordinary citizen or a
paid informant but, rather, whether the information, taken in its
totality, and interpreted not by technical legal rules but by factual
and practical common sense considerations, would lead a reasonable and
prudent person to believe that the person arrested had committed an
offense. Adams, 131 Ill. 2d at 396-97. The question we must resolve
is whether Zielinski's statements, considered in light of the totality
of the circumstances, were sufficient to establish probable cause to
arrest defendant. People v. Shelby, 221 Ill. App. 3d 1028, 1038, 582 N.E.2d 1281 (1991).
During the hearing on defendant's motion to quash arrest and
suppress evidence, Chicago police detective Craig Cegielski testified
that he and his partner interviewed Zielinski at 2 a.m. on December
11, 1992, in the police station. Zielinski told them that she spoke
with defendant at his home on November 8, 1992, shortly after Bonk's
murder. Defendant told her that he had just shot someone at 50th and
Campbell Streets. Cegielski denied threatening Zielinski in any way.
Based on Zielinski's information, Cegielski and Detective Crescenzo
arrested defendant. Zielinski did not testify at the motion hearing.
The trial court denied defendant's motion to quash arrest and
suppress evidence. At trial, Zielinski testified that the police
picked her up in front of her house at 3 p.m. on December 10, 1992.
They took her to the police station and put her in a small room where
five officers questioned her about the Bonk murder. She slept in a
chair in the police station during the night. Initially, she told the
police that she did not know anything about the murder. However,
after they yelled at her, threatened to arrest her for the shooting,
and threatened physical violence, she was scared. As a result, she
gave her statement, which she testified was truthful. She was
released around 3 p.m. the next afternoon after she testified in front
of the grand jury.
Zielinski admitted that she told an investigator for the defense
attorney that she did not remember what defendant said to her on the
night of the murder because she had been drinking that night. She
further told the investigator that she lied to the police because they
were harassing her and that defendant never told her that he shot
anyone. Zielinski stated on redirect examination that she was afraid
of defendant's investigator because she feared the Latin Kings gang.
The defense counsel questioned Zielinski about her arrest for
failure to appear in court pursuant to a subpoena in this case. As a
result of the arrest, she spent over a month in jail, during which
time she gave birth. At the time of the trial, there was a pending
contempt of court charge against her and she was on electronic home
monitoring. She admitted that she was a reluctant witness.
We affirm the trial court's decision that probable cause was
established since it was not manifestly erroneous. People v. Jones,
156 Ill. 2d 225, 237, 620 N.E.2d 325 (1993). Even assuming that
Zielinski's statement was given after questionable conduct by the
police, she testified at trial that the information she gave was
truthful. Defendant did not assert that the information was the fruit
of an illegal arrest, for which he had no standing, but that the
police tactics made the statement unreliable. The record gives no
indication that the statement was unreliable, especially since
Zielinski stated at trial that it was truthful.
Next, defendant asserts that his custodial statement was
involuntary because he was interrogated by the police without a parent
or youth officer being present and did not understand the criminal
legal system or the seriousness of the crime.
During the hearing on his motion to suppress statements,
defendant testified that on December 11, 1992, he was on a school bus
when police officers stopped the bus and told him he was wanted for
questioning regarding a murder in the neighborhood. At the police
station, defendant was handcuffed to a chair and no youth officer was
present. He admitted that he told the detectives to call his mother
instead of his father, but maintained that he never told the police
that he did not want either of his parents present during his
questioning. Further, defendant stated that he asked to speak to his
ex-landlord, who was an attorney, but the police refused. In
addition, defendant testified that both detectives hit him in the head
once and that Crescenzo threatened him with a chair if he did not
talk. Defendant stated that he was scared and nervous.
Defendant further testified that assistant State's Attorney
Andrew LeFevour told him he would get one year of probation and could
leave the station if he signed the statement. Defendant claimed that
he read only the bottom part of the first page and a small amount of
the second page. He initialed corrections in his statement, but did
not read them even though the police told him to read the statement
and sign it. However, defendant did tell the police to include in his
statement that he wanted to get out of the gang and remove his gang
tattoos. After the statement was written and signed, a youth officer
entered the room and asked defendant if he had signed the statement.
After the statement was signed, he spoke with his parents.
Flora Wilson, a Chicago police youth officer, testified that she
received a call from Detective Crescenzo around 9 a.m. on December 11,
1992, regarding defendant. At that time, she introduced herself to
defendant, then returned to her office to wait for the assistant
State's Attorney to arrive. She was not present when Detectives
Crescenzo and Cegielski questioned defendant and did not speak with
defendant herself.
At 10:30 a.m., Wilson went to the small conference room where
defendant was seated. After the assistant State's Attorney gave
defendant his Miranda rights, defendant stated that he understood his
rights and did not appear to have any difficulty with them. Defendant
then gave an oral statement concerning the murder. After the
statement was put into writing, Wilson, defendant, Detective
Crescenzo, and LeFevour signed it. Wilson was present with defendant
in a photograph taken after the statement was completed. The back of
the photograph indicated that it was taken at 11:40 a.m.
Defendant's mother, Cheri Vandermyde, testified that Detective
Crescenzo called her office around 10 or 10:15 a.m. on December 11,
1992. He told her that her son was in custody for murder and had
asked for her. Because Vandermyde did not have transportation,
Crescenzo sent someone to get her. She arrived at the police station
at approximately 10:30 a.m. and was seated in an office. Because the
office door was open, she could see the door of the room where
defendant was being questioned. Vandermyde was told that she could
see her son after the assistant State's Attorney was finished
interviewing him, not that she could go into the room and speak with
her son during the statement. She denied saying she was glad her son
was cooperating.
Andrew LeFevour, who was an assistant State's Attorney on
December 11, 1992, testified that he arrived at the police station
around 10:30 a.m. After speaking with the detectives and interviewing
Zielinski, he spoke to defendant. With a youth officer present,
LeFevour explained who he was, then gave defendant his Miranda and
juvenile rights, which are that he might be tried as an adult and that
he had the right to have his parents present for the interview. After
defendant was told that his parents had been contacted, he said that
he did not want his parents present because he would feel
uncomfortable.
Defendant gave LeFevour an oral statement, which he agreed to
have memorialized in writing. While LeFevour was writing out
defendant's statement, a youth officer was present. At one point,
LeFevour left the room to photocopy additional statement forms. He
was told that defendant's mother had arrived, so he introduced himself
to her. LeFevour testified that he told Vandermyde that he had spoken
to defendant, who was in the process of giving a written statement
about the murder. Although he told her that she could see her son at
any time, she stated that she did not want to go in until after he
finished his statement. She also said that she was glad defendant was
cooperating.
After his conversation with Vandermyde, LeFevour returned to
defendant. LeFevour told defendant that his mother was in the station
and asked if he wanted to see her. Defendant responded that he did
not want to see his mother until he finished the statement.
Defendant did not complain to LeFevour that he had been
mistreated or that any promises or threats were made. LeFevour denied
that he told defendant that three witnesses had signed statements
against him or that he would get probation. LeFevour described
defendant as seeming very familiar with his Miranda rights, being very
articulate and relaxed, and being very willing to speak with LeFevour.
When the statement was completed, LeFevour had defendant read
part of the statement aloud, told defendant he could make any
corrections he wanted, and had defendant sign each page of the
statement. After the statement was completed, LeFevour took a
photograph of defendant. As LeFevour was leaving, defendant's mother
came into the room, followed shortly thereafter by defendant's father.
Detective Craig Cegielski testified that he took defendant off a
school bus on December 11, 1992, but did not handcuff him. As he and
his partner were taking defendant back to his house to notify his
father, defendant asked them not to notify his father because he was
afraid he would get kicked out of the house. Instead, he wanted his
mother to be notified at her job.
Shortly after Cegielski and Crescenzo arrived at the police
station, they contacted the youth officer. Between 10:30 and 11 a.m.,
Vandermyde was brought to the station and put in an office 30 to 40
feet from the room where defendant was being interrogated. As
Cegielski was seating Vandermyde, LeFevour came out of the room where
he was interviewing defendant. Cegielski introduced LeFevour to
Vandermyde, who said that she would wait to see defendant until after
the statement was finished as long as he was cooperating.
According to Cegielski, defendant never asked to speak to an
attorney or to his mother, and the police never denied his parents
access to defendant. Further, Cegielski denied hitting defendant,
telling defendant that he would be convicted because there were three
witnesses against him, or telling him that he would receive probation
and could go home after signing the confession.
Detective Nick Crescenzo testified that defendant insisted that
they contact his mother, and not his father. Between 8:30 and 9 a.m.,
Crescenzo and Cegielski questioned defendant for one-half hour. At
that time, defendant made a confession. At about 9 a.m., the
detective contacted a youth officer. At that time, the youth officer,
Flora Wilson, spoke to defendant, who was not handcuffed. No one
spoke to defendant between 9 and 10:30 a.m., when the assistant
State's Attorney arrived. After speaking to a witness and reviewing
reports, LeFevour gave defendant his Miranda rights. Defendant then
gave an oral statement followed by a written statement. Wilson,
LeFevour, and Crescenzo were present during the statement, which was
written between 11 and 12 noon. Defendant made corrections and
additions, and read part of the statement aloud.
Crescenzo further stated that defendant was never told that there
were three witnesses against him, that he could go home if he signed
the statement, or that he would receive probation. According to
Crescenzo, defendant never asked to speak with his parents or to an
attorney. In fact, defendant emphatically did not want his parents
present during the interrogation.
Defendant's mother was brought to the police station between
10:30 and 11 a.m. and Crescenzo saw her in an office at 11:30 a.m.
while defendant's statement was being prepared. Crescenzo told
Vandermyde about the murder and that her son was cooperating. She
said that she was happy he was cooperating and would wait to see him
when the statement was finished. Crescenzo denied telling her that
she had to wait until the statement was finished.
The trial court concluded that the statements were voluntary and
denied the motion to suppress statements.
The receiving of an incriminating statement by a juvenile in the
absence of counsel is a sensitive concern requiring great care to
assure that the juvenile's confession was neither coerced, suggested,
nor the product of fright or despair. People v. Prude, 66 Ill. 2d 470, 476, 363 N.E.2d 371 (1977). To be admissible at trial, a
confession must be free, voluntary, and not obtained by any direct or
implied promises, however slight, nor by the exertion of any improper
influence. Malloy v. Hogan, 378 U.S. 1, 84 S. Ct. 1489, 12 L. Ed. 2d 653 (1964); People v. Thomas, 137 Ill. 2d 500, 516, 561 N.E.2d 57
(1990). The test for the voluntariness of a confession is whether,
under the totality of the circumstances, the statement was made
freely, without compulsion or inducement, with consideration given to
the characteristics of the accused and the details of the inter-
rogation. Jones, 156 Ill. 2d at 242; Thomas, 137 Ill. 2d at 516.
Under the Juvenile Court Act (705 ILCS 405/5-6 (West 1992)), a
law enforcement officer who takes a minor into custody shall
immediately make a reasonable attempt to notify the parent and shall
without unnecessary delay take the minor to the nearest juvenile
officer. The purpose of the "notice" requirement is to permit, where
possible, a parent to confer and counsel with the juvenile before
interrogation and confession. People v. Montanez, 273 Ill. App. 3d
844, 652 N.E.2d 1271 (1995). There is authority that the Juvenile
Court Act applies to a juvenile who is tried as an adult. Montanez,
273 Ill. App. 3d 844; People v. McGhee, 154 Ill. App. 3d 232, 507 N.E.2d 33 (1987).
Factors to be considered in determining whether the confession
was voluntary include the defendant's age, education, intelligence,
experience and physical condition; the length and intensity of the
interrogation; the existence of any threats, promises, or physical
coercion; whether the confession was induced by police deception; and
whether defendant was informed of his constitutional rights. People
v. Martin, 102 Ill. 2d 412, 427, 466 N.E.2d 228 (1984); People v.
MacFarland, 228 Ill. App. 3d 107, 117, 592 N.E.2d 471 (1992). When a
juvenile's confession is at issue, additional factors come into play,
including the time of day and the presence of a parent or other adult
interested in the juvenile's welfare. People v. Brown, 235 Ill. App.
3d 479, 490, 601 N.E.2d 1190 (1992). Courts scrutinize custodial
statements by juvenile suspects with particular care, given that the
potential for coercion is enhanced. Brown, 235 Ill. App. 3d at 490.
Although the presence of a youth officer does not per se make a
juvenile's confession voluntary, it is a significant factor. In re
Lashun H., 284 Ill. App. 3d 545, 557, 672 N.E.2d 331 (1996). The
failure to have a juvenile officer present is material to determining
the voluntariness of defendant's statement. People v. Knox, 186 Ill.
App. 3d 808, 815, 542 N.E.2d 910 (1989). The presence or absence of a
parent is also a factor in evaluating the voluntary nature of a
confession. People v. Montanez, 273 Ill. App. 3d at 854; In re J.O.,
231 Ill. App. 3d 853, 855, 596 N.E.2d 1285 (1992). The relevant
inquiry is whether the absence of an adult interested in the
defendant's welfare contributed to the coercive circumstances
surrounding the interview, not whether contact with a parent was
denied. Knox, 186 Ill. App. 3d at 814. The trial court's finding
that a confession was voluntary will not be overturned by the
reviewing court unless it is against the manifest weight of the
evidence. Jones, 156 Ill. 2d at 243; Thomas, 137 Ill. 2d at 516.
The following cases are helpful in deciding whether the
confession in this case was voluntary. In the case of People v.
Montanez, 273 Ill. App. 3d 844, the court considered the factor of
"notice" that should be given to a parent and juvenile officer. The
court stated:
"'Notice' here must be understood to have
some purpose, namely to allow, where
possible, the concerned adult to confer and
counsel with the juvenile before
interrogation and confession. Yes, an
attempt was made to contact a youth officer
before the statement was taken; but the
interrogation went forward anyway within
minutes. And yes, the parent here was
'notified' but in the same breath she was
told she could not see her child until
called. These circumstances demonstrate the
intended fulfillment of notice here was
simply a charade." Montanez, 273 Ill. App.
3d at 850.
Montanez further held that the failure to have the opportunity to
confer was material in determining the voluntariness of a minor
defendant's statement. 273 Ill. App. 3d at 852. The court held that
the confession was not voluntary.
In the case of In re J.O., 231 Ill. App. 3d 853, a 12-year old
respondent's parents went to the police station. However, the police
testified that because the respondent's parents did not ask to talk to
the respondent, they were not taken to see him. Instead, they waited
in the police station lobby. The respondent was then interrogated.
The court agreed that there is no per se rule that juveniles must be
allowed to consult with their parents prior to questioning. Also, the
voluntariness of a juvenile's confession is to be determined by the
totality of the circumstances. Nevertheless, the court in In re J.O.,
stated:
"A juvenile's age and the fact that the
interrogation occurred in the middle of the
night may properly be considered in
evaluating the voluntary nature of a
confession. [Citation] Additionally, if
parents have indicated an interest by their
presence, then they should be allowed to
confer with their children before any
questioning occurs. [Citation] The presence
or absence of a parent is a factor in
evaluating the voluntary nature of a
confession under the totality of the
circumstances test. [Citation] Accordingly,
because the trial court's ruling was based on
the totality of the circumstances and the
court considered proper factors in making its
determination, we affirm its granting of the
motion to suppress." In re J.O., 231 Ill.
App. 3d at 855.
In the case of People v. R.B., 232 Ill. App. 3d 583, 597 N.E.2d 879 (1992), the 15-year-old defendant maintained that his statement
was involuntary. The court explained in deciding the case:
"This court has stated that the failure to
telephone a juvenile's parents, or the
absence of a parent during questioning, is a
factor in determining voluntariness, but is
not determinative of whether defendant's
confession should be suppressed. [Citation]
However, where the State failed to take
appropriate steps to ensure that a juvenile
defendant had an opportunity to confer with
an interested adult, either a parent or a
youth officer, this court has held that the
police conduct rendered his confession
inadmissible. [Citation] R.B., 232 Ill.
App. 3d at 593.
The court then held that the confession was involuntary.
Considering the totality of the circumstances, we conclude that
the trial court's determination that defendant's first confession
given between 8:30 a.m. and 9 a.m. was voluntary was against the
manifest weight of the evidence. Defendant was an emotionally
disturbed 14-year-old person. He had previously been admitted to a
psychiatric hospital and had attended Oak Therapeutic Day School and
behavior disorder programs at five schools.
Most importantly, no adult interested in defendant's welfare was
present during his initial interrogation when defendant first
confessed to the police. The police officers testified that they
initially interrogated defendant from 8:30 to 9 a.m., then contacted
the youth officer at 9 a.m. The youth officer testified that she was
introduced to defendant shortly after 9 a.m., but did not speak with
him at that time. She returned to her office until the assistant
State's Attorney arrived at 10:30 a.m. Although the youth officer was
present during defendant's subsequent statement to the assistant
State's Attorney, there was no evidence that she ever spoke with
defendant alone at any time. Moreover, although defendant's mother
was called, there was no evidence that the police tried to contact her
before they questioned defendant at 8:30 a.m.
Therefore, we find the first confession involuntary. Because the
confession should have been suppressed, we reverse the conviction and
remand for a new trial without the first confession. However, the
second confession, to the assistant State's Attorney, is admissible.
Because we are ordering a new trial, we will not discuss the
jury, closing argument, or sentencing issues. We will, however,
discuss whether the jury should have been instructed on the lesser-
included offense of involuntary manslaughter since that issue may
appear in the new trial.
It is well established that an instruction defining the lesser
offense should be given if there is evidence in the record that, if
believed by the jury, would reduce the crime to a lesser-included
offense. People v. Valdez, 230 Ill. App. 3d 975, 985, 595 N.E.2d 1245
(1992).
There was no evidence in this case to warrant a jury instruction
on involuntary manslaughter. A person commits involuntary
manslaughter when he "unintentionally kills an individual without
lawful justification ***[and] his acts whether lawful or unlawful
which cause the death are such as are likely to cause death or great
bodily harm to some individual, and he performs them recklessly." 720
ILCS 5/9-3 (West 1992).
There was no evidence that this shooting was reckless or an
accident, but only that the person shot was not the intended victim.
That is not enough for an involuntary manslaughter instruction.
Shooting and killing an innocent bystander when intending to shoot
someone else is evidence of first-degree murder. If defendant had
been shooting aimlessly out the car window at no one and shot someone
by accident, that might be sufficient for an instruction on
involuntary manslaughter. However, there was no such evidence in this
case. Therefore, we reject defendant's contention.
Based on the foregoing, we reverse the circuit court judgment and
remand for a new trial without defendant's first confession.
Defendant's second confession, to the assistant State's Attorney, is
admissible. For double jeopardy purposes, we conclude that the
evidence presented at trial was sufficient for a jury to decide that
defendant was guilty beyond a reasonable doubt. We are not making a
finding as to defendant's guilt or innocence that will be binding in a
new trial, but rather our consideration of the evidence admitted at
trial will protect defendant's constitutional right against double
jeopardy. See People v. Taylor, 76 Ill. 2d 289, 309-310, 391 N.E.2d 366 (1979).
Reversed and remanded.
Wolfson, P.J., and McNamara, J., concur.
SEPTEMBER 18, 1997
No. 1--95--2112
THE PEOPLE OF THE STATE OF ILLINOIS,
Plaintiff-Appellee,
v.
SHAWN FULLER,
Defendant-Appellant. )
)
)
)
)
)
)
)
) Appeal from the
Circuit Court of
Cook County
No. 93--CR--2858
Honorable
James P. Flannery,
Judge Presiding.
JUSTICE CERDA delivered the opinion of the court:
Defendant, Shawn Fuller, 14 years old, was transferred from
juvenile court to the criminal court to be prosecuted for first-degree
murder. 720 ILCS 5/9-1 (West 1992). After a jury trial, he was found
guilty and was sentenced to 35 years' imprisonment. On appeal,
defendant asserts that (1) his transfer from juvenile court to the
criminal court was an abuse of discretion; (2) the trial court erred
in failing to quash the arrest and suppress the evidence; (3) his
confession was involuntary; (4) the trial court erred in failing to
excuse two prospective jurors for cause; (5) the jury should have been
instructed on the lesser offense of involuntary manslaughter; (6) the
State's closing argument remarks were prejudicial; (7) the trial court
abused its discretion in failing to honor the jury's request for a
transcript; (8) an allegation of juror coercion entitles him to an
evidentiary hearing; and (9) his sentence was excessive.
At the juvenile court hearing to determine whether defendant
would be transferred to the criminal court, Chicago police officer
Gary Horacek testified that he responded to a call of a man shot at
12:25 a.m. on November 8, 1992. When he arrived at 50th and Campbell
Streets, Chicago, he saw the victim, George Bonk, who had died of
multiple gunshot wounds. Officer Horacek interviewed several
neighbors, who stated that they heard three gunshots, but did not see
the shooting.
Chicago police detective Nicholas Crescenzo testified that he
spoke to Theresa Zielinski at 2 a.m. on December 11, 1992. Zielinski
told him that she was at defendant's house on the night of the
shooting. Shortly after midnight, defendant returned home in a black
car driven by someone named Johnny. Defendant, who was nervous and
panicky, told Zielinski that he had been shooting at rival gang
members when he shot a bystander by accident. Defendant told
Zielinski to spread the word around the neighborhood that someone else
was the shooter.
Crescenzo further testified that after interviewing Zielinski,
Crescenzo and his partner arrested defendant, advised him of his
Miranda rights, and told him that he could have his parents present.
Defendant told Crescenzo that on the night of Bonk's murder, he left a
gang meeting in a black Buick with a fellow gang member named Johnny.
After getting a gun and ammunition, Johnny put the gun under the car's
front seat so that he could pull it out quickly if they saw rival gang
members. As they were driving west on 50th Street towards Campbell,
they saw rival gang members, who yelled insults. Johnny pulled out
the gun, put in the clip, and handed it to defendant, saying, "[C]ap
'em, cap 'em!" Defendant took the gun, leaned out the car window, and
fired at the rival gang members. The next day, he learned that
someone had been killed.
Jean Marie Zupan, defendant's probation officer, described
defendant as having an above-average intelligence, no educational
problems, and being academically capable and talented. However, he
was a severely emotionally disturbed and violent person who came from
a violent, severely unstable, dysfunctional family. Although Zupan
thought defendant was a danger to himself and to others, she also
stated that he was eager to get attention and praise from adults and
did well in one-on-one therapy.
It was Zupan's opinion that defendant's problems resulted from
his upbringing and family situation. Because his home was not an
appropriate place for defendant, Zupan recommended that he stay in the
juvenile system where he could get mental health residential services.
She thought that he should be placed out-of-state to avoid contact
with his family.
Zupan explained that defendant had previously attended behavior
disorder programs at five schools. For nine months in 1991, he
attended a residential program at the Mill School in Rockford.
Initially, he was very disruptive and had to be restrained several
times, but eventually he made progress. Unfortunately, his father
refused further residential treatment and defendant went home.
Defendant then attended Oak Therapeutic Day School for eight weeks. A
social worker there told Zupan that defendant had learned how to
manipulate therapy to give the impression of compliance without any
real progress.
In 1992, defendant was admitted to Children's Psychiatric
University Hospital after he threatened to kill himself and his
father. The hospital social worker told Zupan that defendant was
initially non-compliant, but then progressed and responded well to the
structured environment. At the time of his arrest, defendant was
attending Hillside Day Academy.
Defendant told Zupan that he joined the Campbell Kings street
gang when he moved into his neighborhood in April 1992. Prior to his
arrest, defendant stayed in the house most of the time because he was
afraid to go outside. Previously, in 1989, he had been in the
Disciples street gang for five months, but quit after being shot with
a BB gun and harassed by other kids.
Defendant had six station adjustments: disorderly conduct in
December 1987; criminal trespass to property in April 1989; assault in
May 1989; criminal trespass to property in July 1992; a racial
incident and mob action in August 1992; and a gang adjustment in
September 1992.
Responding to the court's questions about the availability of
long-term residential programs for juveniles, Zupan stated that there
was a possibility that defendant would go home if none were available.
Zupan did not know what residential programs were available for
defendant as an adult or whether defendant's father could be precluded
from regaining custody of defendant. Zupan explained, however, that
defendant could be declared a ward of the court, which could monitor
his treatment and place him wherever it saw fit, thus preventing him
from returning home.
Douglas Cater, a social worker at the McKinley Intervention
Services, testified that he had been counseling defendant's family for
a year prior to Bonk's murder. Cater described defendant's family
life as chaotic with little nurturing and much bickering and fighting.
Cater had not seen much improvement while he was working with the
family.
According to Cater, the principals at defendant's schools liked
defendant and wanted him back. Cater thought it was in defendant's
best interest to be in a residential treatment institution where he
could get regular intensive psychological counseling. Defendant had
told Cater he was recruited into a gang in May 1992 by someone who was
nice to him. Cater felt that defendant was vulnerable to that type of
influence due to his family situation. After defendant was badly
beaten by rival gang members in August 1992, he was afraid to go
outside. As a result, he stayed home most of the time and developed a
vocal tick. Although defendant had soured on the gang life, he
remained a gang member to receive protection and because he was afraid
that his own gang would hurt him if he tried to get out. It was
Cater's opinion that defendant is very intelligent, has much
potential, and should stay in the juvenile system since he is very
cooperative when he is nurtured.
After arguments, the juvenile court granted the State's motion to
transfer defendant to the criminal court. In its findings, the court
found that there was sufficient evidence upon which a grand jury would
be expected to return an indictment, there was evidence that the
offense was committed in an aggressive and premeditated manner,
defendant was 14 years, 8 months old at the time of Bonk's murder, and
defendant possessed a deadly weapon when he committed the offense. In
reviewing defendant's prior history, the court concluded that it was
sufficient to warrant a transfer. Finally, the court considered
whether there were facilities available for defendant's treatment and
rehabilitation and whether the best interests of the minor and the
security of the public would require that defendant continue in
custody after his 21st birthday.
Defendant asserts that his transfer to the criminal court was an
abuse of discretion, which defied the recommendation of every witness.
Defendant maintains that the trial court erroneously believed that his
father would invariably retain legal custody, thus enabling his father
to sabotage his progress, unless he was prosecuted under the criminal
laws.
Section 5-4(3)(a) of the Juvenile Court Act of 1987 (705 ILCS
405/1-1 et seq. (West 1994)) permits criminal prosecution of a minor
at least 13 years of age for any offense if, upon the motion of the
State's Attorney, a juvenile court judge finds that it is not in the
best interests of the minor or of the public to proceed under the
Juvenile Court Act. People v. Beck, 190 Ill. App. 3d 748, 753, 546 N.E.2d 1127 (1989); 705 ILCS 405/5-4(3)(a) (West 1992). The purpose
of any transfer proceeding is to balance the best interests of the
alleged juvenile offender, particularly as those interests relate to
his potential for rehabilitation, against society's legitimate
interest in being protected from criminal victimization by minors.
People v. Clark, 119 Ill. 2d 1, 12, 518 N.E.2d 138 (1987).
Section 5-4(3)(b) of the Juvenile Court Act of 1987 lists several
factors that a juvenile court judge must consider in deciding whether
a minor should be prosecuted as an adult. In re R.T., 271 Ill. App.
3d 673, 677, 648 N.E.2d 1043 (1995); 705 ILCS 405/5-4(3)(b)(West
1992). Although the juvenile court's inquiry is not limited to the
statutory factors, the court must at a minimum consider: (1) whether
there is sufficient evidence upon which a grand jury may be expected
to return an indictment; (2) whether there is evidence that the
alleged offense was committed in an aggressive and premeditated
manner; (3) the age of the minor; (4) the previous history of the
minor; (5) whether there are facilities available to the juvenile
court for the minor's treatment and rehabilitation; (6) whether the
best interests of the minor and the security of the public require
that the minor continue in custody or under supervision for a period
extending beyond his minority; and (7) whether the minor possessed a
deadly weapon when committing the alleged offense. 705 ILCS 405/5-
4(3)(b)(West 1992). Finally, the judge weighing these relevant
factors must determine whether to strike the balance for society by
transferring the alleged juvenile offender, or to strike the balance
for the juvenile by retaining jurisdiction. Beck, 190 Ill. App. 3d at
755, citing Clark, 119 Ill. 2d at 14.
In a transfer hearing, the State has the burden of presenting
sufficient evidence to persuade the juvenile court to grant a motion
to transfer. People v. Taylor, 76 Ill. 2d 289, 304, 391 N.E.2d 366
(1979); In re L.J., 274 Ill. App. 3d 977, 979, 654 N.E.2d 671 (1995).
Although no single factor is dispositive, equal weight need not be
given to all the factors. Taylor, 76 Ill. 2d at 305; People v. Cooks,
271 Ill. App. 3d 25, 39, 648 N.E.2d 190 (1995). The State must only
present evidence sufficient to persuade the juvenile court, in its
discretion, that transfer is justified in light of the statute.
Cooks, 271 Ill. App. 3d at 39. It is not necessary that all factors
be resolved against the juvenile. Cooks, 271 Ill. App. 3d at 39.
The role of the appellate court when reviewing transfer cases is
to determine whether, in evaluating the evidence in light of the
statutory criteria, the juvenile court has abused its discretion.
Taylor, 76 Ill. 2d at 300-01; In re R.T., 271 Ill. App. 3d at 677. We
find that the juvenile court did not abuse its discretion when it
transferred defendant to the criminal court.
The first factor to consider is whether there was sufficient
evidence introduced at the transfer hearing upon which a grand jury
could be expected to return an indictment. The factors to be
considered require only a probable cause standard of proof. Taylor,
76 Ill. 2d at 303; In re R.T., 271 Ill. App. 3d at 679; Cooks, 271
Ill. App. 3d at 39. Given the facts of this case, there was
sufficient evidence introduced at the transfer hearing.
The second factor is whether the evidence shows that the alleged
offense was committed in an aggressive and premeditated manner. The
record contains evidence that this murder was committed in an
aggressive and premeditated manner.
The third factor is defendant's age, which was 14 years 8 months
at the time of Bonk's murder. Since fifteen-year-old minors are
automatically tried as adults for first-degree murder, defendant would
have automatically been tried as an adult if the murder had occurred
four months later. 705 ILCS 405/5-4(6)(a) (West 1992).
The fourth statutory factor that the court must consider is the
previous history of the minor. In this case, defendant had a very
troubled home life, wanted approval from adults, and was looking for
security. He had attended five behavior disorder programs since he
was in elementary school, but his father refused to place him in any
more residential treatment programs, which had helped him in the past.
Defendant joined a gang for five months when he was 11 years old, but
left. Again, when he was 14 years old, he joined a different gang,
but became afraid after being beaten up by rival gang members.
In addition, defendant had six station adjustments, or verbal
warnings from the police, which are relevant considerations at a
transfer hearing. Beck, 190 Ill. App. 3d at 758-59. A station
adjustment occurs when the police take a minor to the police station,
but release him after deciding not to prosecute. People v. D.B., 202
Ill. App. 3d 194, 203, 559 N.E.2d 873 (1990).
The fifth factor is whether there are facilities particularly
available to the juvenile court for defendant's treatment and
rehabilitation. The statute requires that the juvenile court receive
and evaluate information about the facilities available for the
minor's treatment or rehabilitation. Clark, 119 Ill. 2d at 17.
Although the testimony regarding available treatment facilities was
confusing, the judge examined the possibilities for defendant's
treatment as a juvenile and as an adult.
The sixth factor is whether the best interests of the minor and
the security of the public require that the minor continue in custody
or under supervision for a period extending beyond his minority. This
factor is actually a balancing of the other factors.
The final factor at the time of defendant's transfer hearing was
whether the offense was carried out with a deadly weapon. Since the
victim was shot with a gun, that factor supports defendant's transfer
to the criminal court.
After considering the statutory factors for transfer, we find
that there was no abuse of discretion. The judge considered all the
relevant factors and was particularly aware of defendant's emotional
problems and past treatment. This court cannot reweigh all the
factors, but must decide whether there was an abuse of discretion.
Taylor, 76 Ill. 2d at 300-01; In re R.T., 271 Ill. App. 3d at 677;
Cooks, 271 Ill. App. 3d at 39. We find no abuse of discretion.
Next, we consider whether the trial court erred when it denied
defendant's motion to quash arrest and suppress evidence. Defendant
argues that the police lacked probable cause to arrest him because the
arrest was based solely on unreliable information obtained by police
coercion and overt threats against Theresa Zielinski during their
overnight interrogation of her. Furthermore, defendant argues, her
statement was uncorroborated.
The State argues that the trial court's denial of the motion to
quash arrest was not manifestly erroneous because Zielinski's
information was trustworthy and reliable even though she testified at
trial that she did not want to speak to the police.
Whether or not probable cause for an arrest exists depends on the
totality of the facts and circumstances known to the officers when the
arrest was made. People v. James, 118 Ill. 2d 214, 223, 514 N.E.2d 998 (1987). If an informant is the source of the information, as in
this case, an independent showing of reliability is required because
of the obvious risk of misrepresentation or outright fabrication.
James, 118 Ill. 2d at 223. However, the court looks to the
informant's reliability as only one of the factors to be considered in
the totality of the circumstances approach. People v. Adams, 131 Ill. 2d 387, 546 N.E.2d 561 (1989).
While the basis of the informant's knowledge is relevant, the
central issue is not whether the informant is an ordinary citizen or a
paid informant but, rather, whether the information, taken in its
totality, and interpreted not by technical legal rules but by factual
and practical common sense considerations, would lead a reasonable and
prudent person to believe that the person arrested had committed an
offense. Adams, 131 Ill. 2d at 396-97. The question we must resolve
is whether Zielinski's statements, considered in light of the totality
of the circumstances, were sufficient to establish probable cause to
arrest defendant. People v. Shelby, 221 Ill. App. 3d 1028, 1038, 582 N.E.2d 1281 (1991).
During the hearing on defendant's motion to quash arrest and
suppress evidence, Chicago police detective Craig Cegielski testified
that he and his partner interviewed Zielinski at 2 a.m. on December
11, 1992, in the police station. Zielinski told them that she spoke
with defendant at his home on November 8, 1992, shortly after Bonk's
murder. Defendant told her that he had just shot someone at 50th and
Campbell Streets. Cegielski denied threatening Zielinski in any way.
Based on Zielinski's information, Cegielski and Detective Crescenzo
arrested defendant. Zielinski did not testify at the motion hearing.
The trial court denied defendant's motion to quash arrest and
suppress evidence. At trial, Zielinski testified that the police
picked her up in front of her house at 3 p.m. on December 10, 1992.
They took her to the police station and put her in a small room where
five officers questioned her about the Bonk murder. She slept in a
chair in the police station during the night. Initially, she told the
police that she did not know anything about the murder. However,
after they yelled at her, threatened to arrest her for the shooting,
and threatened physical violence, she was scared. As a result, she
gave her statement, which she testified was truthful. She was
released around 3 p.m. the next afternoon after she testified in front
of the grand jury.
Zielinski admitted that she told an investigator for the defense
attorney that she did not remember what defendant said to her on the
night of the murder because she had been drinking that night. She
further told the investigator that she lied to the police because they
were harassing her and that defendant never told her that he shot
anyone. Zielinski stated on redirect examination that she was afraid
of defendant's investigator because she feared the Latin Kings gang.
The defense counsel questioned Zielinski about her arrest for
failure to appear in court pursuant to a subpoena in this case. As a
result of the arrest, she spent over a month in jail, during which
time she gave birth. At the time of the trial, there was a pending
contempt of court charge against her and she was on electronic home
monitoring. She admitted that she was a reluctant witness.
We affirm the trial court's decision that probable cause was
established since it was not manifestly erroneous. People v. Jones,
156 Ill. 2d 225, 237, 620 N.E.2d 325 (1993). Even assuming that
Zielinski's statement was given after questionable conduct by the
police, she testified at trial that the information she gave was
truthful. Defendant did not assert that the information was the fruit
of an illegal arrest, for which he had no standing, but that the
police tactics made the statement unreliable. The record gives no
indication that the statement was unreliable, especially since
Zielinski stated at trial that it was truthful.
Next, defendant asserts that his custodial statement was
involuntary because he was interrogated by the police without a parent
or youth officer being present and did not understand the criminal
legal system or the seriousness of the crime.
During the hearing on his motion to suppress statements,
defendant testified that on December 11, 1992, he was on a school bus
when police officers stopped the bus and told him he was wanted for
questioning regarding a murder in the neighborhood. At the police
station, defendant was handcuffed to a chair and no youth officer was
present. He admitted that he told the detectives to call his mother
instead of his father, but maintained that he never told the police
that he did not want either of his parents present during his
questioning. Further, defendant stated that he asked to speak to his
ex-landlord, who was an attorney, but the police refused. In
addition, defendant testified that both detectives hit him in the head
once and that Crescenzo threatened him with a chair if he did not
talk. Defendant stated that he was scared and nervous.
Defendant further testified that assistant State's Attorney
Andrew LeFevour told him he would get one year of probation and could
leave the station if he signed the statement. Defendant claimed that
he read only the bottom part of the first page and a small amount of
the second page. He initialed corrections in his statement, but did
not read them even though the police told him to read the statement
and sign it. However, defendant did tell the police to include in his
statement that he wanted to get out of the gang and remove his gang
tattoos. After the statement was written and signed, a youth officer
entered the room and asked defendant if he had signed the statement.
After the statement was signed, he spoke with his parents.
Flora Wilson, a Chicago police youth officer, testified that she
received a call from Detective Crescenzo around 9 a.m. on December 11,
1992, regarding defendant. At that time, she introduced herself to
defendant, then returned to her office to wait for the assistant
State's Attorney to arrive. She was not present when Detectives
Crescenzo and Cegielski questioned defendant and did not speak with
defendant herself.
At 10:30 a.m., Wilson went to the small conference room where
defendant was seated. After the assistant State's Attorney gave
defendant his Miranda rights, defendant stated that he understood his
rights and did not appear to have any difficulty with them. Defendant
then gave an oral statement concerning the murder. After the
statement was put into writing, Wilson, defendant, Detective
Crescenzo, and LeFevour signed it. Wilson was present with defendant
in a photograph taken after the statement was completed. The back of
the photograph indicated that it was taken at 11:40 a.m.
Defendant's mother, Cheri Vandermyde, testified that Detective
Crescenzo called her office around 10 or 10:15 a.m. on December 11,
1992. He told her that her son was in custody for murder and had
asked for her. Because Vandermyde did not have transportation,
Crescenzo sent someone to get her. She arrived at the police station
at approximately 10:30 a.m. and was seated in an office. Because the
office door was open, she could see the door of the room where
defendant was being questioned. Vandermyde was told that she could
see her son after the assistant State's Attorney was finished
interviewing him, not that she could go into the room and speak with
her son during the statement. She denied saying she was glad her son
was cooperating.
Andrew LeFevour, who was an assistant State's Attorney on
December 11, 1992, testified that he arrived at the police station
around 10:30 a.m. After speaking with the detectives and interviewing
Zielinski, he spoke to defendant. With a youth officer present,
LeFevour explained who he was, then gave defendant his Miranda and
juvenile rights, which are that he might be tried as an adult and that
he had the right to have his parents present for the interview. After
defendant was told that his parents had been contacted, he said that
he did not want his parents present because he would feel
uncomfortable.
Defendant gave LeFevour an oral statement, which he agreed to
have memorialized in writing. While LeFevour was writing out
defendant's statement, a youth officer was present. At one point,
LeFevour left the room to photocopy additional statement forms. He
was told that defendant's mother had arrived, so he introduced himself
to her. LeFevour testified that he told Vandermyde that he had spoken
to defendant, who was in the process of giving a written statement
about the murder. Although he told her that she could see her son at
any time, she stated that she did not want to go in until after he
finished his statement. She also said that she was glad defendant was
cooperating.
After his conversation with Vandermyde, LeFevour returned to
defendant. LeFevour told defendant that his mother was in the station
and asked if he wanted to see her. Defendant responded that he did
not want to see his mother until he finished the statement.
Defendant did not complain to LeFevour that he had been
mistreated or that any promises or threats were made. LeFevour denied
that he told defendant that three witnesses had signed statements
against him or that he would get probation. LeFevour described
defendant as seeming very familiar with his Miranda rights, being very
articulate and relaxed, and being very willing to speak with LeFevour.
When the statement was completed, LeFevour had defendant read
part of the statement aloud, told defendant he could make any
corrections he wanted, and had defendant sign each page of the
statement. After the statement was completed, LeFevour took a
photograph of defendant. As LeFevour was leaving, defendant's mother
came into the room, followed shortly thereafter by defendant's father.
Detective Craig Cegielski testified that he took defendant off a
school bus on December 11, 1992, but did not handcuff him. As he and
his partner were taking defendant back to his house to notify his
father, defendant asked them not to notify his father because he was
afraid he would get kicked out of the house. Instead, he wanted his
mother to be notified at her job.
Shortly after Cegielski and Crescenzo arrived at the police
station, they contacted the youth officer. Between 10:30 and 11 a.m.,
Vandermyde was brought to the station and put in an office 30 to 40
feet from the room where defendant was being interrogated. As
Cegielski was seating Vandermyde, LeFevour came out of the room where
he was interviewing defendant. Cegielski introduced LeFevour to
Vandermyde, who said that she would wait to see defendant until after
the statement was finished as long as he was cooperating.
According to Cegielski, defendant never asked to speak to an
attorney or to his mother, and the police never denied his parents
access to defendant. Further, Cegielski denied hitting defendant,
telling defendant that he would be convicted because there were three
witnesses against him, or telling him that he would receive probation
and could go home after signing the confession.
Detective Nick Crescenzo testified that defendant insisted that
they contact his mother, and not his father. Between 8:30 and 9 a.m.,
Crescenzo and Cegielski questioned defendant for one-half hour. At
that time, defendant made a confession. At about 9 a.m., the
detective contacted a youth officer. At that time, the youth officer,
Flora Wilson, spoke to defendant, who was not handcuffed. No one
spoke to defendant between 9 and 10:30 a.m., when the assistant
State's Attorney arrived. After speaking to a witness and reviewing
reports, LeFevour gave defendant his Miranda rights. Defendant then
gave an oral statement followed by a written statement. Wilson,
LeFevour, and Crescenzo were present during the statement, which was
written between 11 and 12 noon. Defendant made corrections and
additions, and read part of the statement aloud.
Crescenzo further stated that defendant was never told that there
were three witnesses against him, that he could go home if he signed
the statement, or that he would receive probation. According to
Crescenzo, defendant never asked to speak with his parents or to an
attorney. In fact, defendant emphatically did not want his parents
present during the interrogation.
Defendant's mother was brought to the police station between
10:30 and 11 a.m. and Crescenzo saw her in an office at 11:30 a.m.
while defendant's statement was being prepared. Crescenzo told
Vandermyde about the murder and that her son was cooperating. She
said that she was happy he was cooperating and would wait to see him
when the statement was finished. Crescenzo denied telling her that
she had to wait until the statement was finished.
The trial court concluded that the statements were voluntary and
denied the motion to suppress statements.
The receiving of an incriminating statement by a juvenile in the
absence of counsel is a sensitive concern requiring great care to
assure that the juvenile's confession was neither coerced, suggested,
nor the product of fright or despair. People v. Prude, 66 Ill. 2d 470, 476, 363 N.E.2d 371 (1977). To be admissible at trial, a
confession must be free, voluntary, and not obtained by any direct or
implied promises, however slight, nor by the exertion of any improper
influence. Malloy v. Hogan, 378 U.S. 1, 84 S. Ct. 1489, 12 L. Ed. 2d 653 (1964); People v. Thomas, 137 Ill. 2d 500, 516, 561 N.E.2d 57
(1990). The test for the voluntariness of a confession is whether,
under the totality of the circumstances, the statement was made
freely, without compulsion or inducement, with consideration given to
the characteristics of the accused and the details of the inter-
rogation. Jones, 156 Ill. 2d at 242; Thomas, 137 Ill. 2d at 516.
Under the Juvenile Court Act (705 ILCS 405/5-6 (West 1992)), a
law enforcement officer who takes a minor into custody shall
immediately make a reasonable attempt to notify the parent and shall
without unnecessary delay take the minor to the nearest juvenile
officer. The purpose of the "notice" requirement is to permit, where
possible, a parent to confer and counsel with the juvenile before
interrogation and confession. People v. Montanez, 273 Ill. App. 3d
844, 652 N.E.2d 1271 (1995). There is authority that the Juvenile
Court Act applies to a juvenile who is tried as an adult. Montanez,
273 Ill. App. 3d 844; People v. McGhee, 154 Ill. App. 3d 232, 507 N.E.2d 33 (1987).
Factors to be considered in determining whether the confession
was voluntary include the defendant's age, education, intelligence,
experience and physical condition; the length and intensity of the
interrogation; the existence of any threats, promises, or physical
coercion; whether the confession was induced by police deception; and
whether defendant was informed of his constitutional rights. People
v. Martin, 102 Ill. 2d 412, 427, 466 N.E.2d 228 (1984); People v.
MacFarland, 228 Ill. App. 3d 107, 117, 592 N.E.2d 471 (1992). When a
juvenile's confession is at issue, additional factors come into play,
including the time of day and the presence of a parent or other adult
interested in the juvenile's welfare. People v. Brown, 235 Ill. App.
3d 479, 490, 601 N.E.2d 1190 (1992). Courts scrutinize custodial
statements by juvenile suspects with particular care, given that the
potential for coercion is enhanced. Brown, 235 Ill. App. 3d at 490.
Although the presence of a youth officer does not per se make a
juvenile's confession voluntary, it is a significant factor. In re
Lashun H., 284 Ill. App. 3d 545, 557, 672 N.E.2d 331 (1996). The
failure to have a juvenile officer present is material to determining
the voluntariness of defendant's statement. People v. Knox, 186 Ill.
App. 3d 808, 815, 542 N.E.2d 910 (1989). The presence or absence of a
parent is also a factor in evaluating the voluntary nature of a
confession. People v. Montanez, 273 Ill. App. 3d at 854; In re J.O.,
231 Ill. App. 3d 853, 855, 596 N.E.2d 1285 (1992). The relevant
inquiry is whether the absence of an adult interested in the
defendant's welfare contributed to the coercive circumstances
surrounding the interview, not whether contact with a parent was
denied. Knox, 186 Ill. App. 3d at 814. The trial court's finding
that a confession was voluntary will not be overturned by the
reviewing court unless it is against the manifest weight of the
evidence. Jones, 156 Ill. 2d at 243; Thomas, 137 Ill. 2d at 516.
The following cases are helpful in deciding whether the
confession in this case was voluntary. In the case of People v.
Montanez, 273 Ill. App. 3d 844, the court considered the factor of
"notice" that should be given to a parent and juvenile officer. The
court stated:
"'Notice' here must be understood to have
some purpose, namely to allow, where
possible, the concerned adult to confer and
counsel with the juvenile before
interrogation and confession. Yes, an
attempt was made to contact a youth officer
before the statement was taken; but the
interrogation went forward anyway within
minutes. And yes, the parent here was
'notified' but in the same breath she was
told she could not see her child until
called. These circumstances demonstrate the
intended fulfillment of notice here was
simply a charade." Montanez, 273 Ill. App.
3d at 850.
Montanez further held that the failure to have the opportunity to
confer was material in determining the voluntariness of a minor
defendant's statement. 273 Ill. App. 3d at 852. The court held that
the confession was not voluntary.
In the case of In re J.O., 231 Ill. App. 3d 853, a 12-year old
respondent's parents went to the police station. However, the police
testified that because the respondent's parents did not ask to talk to
the respondent, they were not taken to see him. Instead, they waited
in the police station lobby. The respondent was then interrogated.
The court agreed that there is no per se rule that juveniles must be
allowed to consult with their parents prior to questioning. Also, the
voluntariness of a juvenile's confession is to be determined by the
totality of the circumstances. Nevertheless, the court in In re J.O.,
stated:
"A juvenile's age and the fact that the
interrogation occurred in the middle of the
night may properly be considered in
evaluating the voluntary nature of a
confession. [Citation] Additionally, if
parents have indicated an interest by their
presence, then they should be allowed to
confer with their children before any
questioning occurs. [Citation] The presence
or absence of a parent is a factor in
evaluating the voluntary nature of a
confession under the totality of the
circumstances test. [Citation] Accordingly,
because the trial court's ruling was based on
the totality of the circumstances and the
court considered proper factors in making its
determination, we affirm its granting of the
motion to suppress." In re J.O., 231 Ill.
App. 3d at 855.
In the case of People v. R.B., 232 Ill. App. 3d 583, 597 N.E.2d 879 (1992), the 15-year-old defendant maintained that his statement
was involuntary. The court explained in deciding the case:
"This court has stated that the failure to
telephone a juvenile's parents, or the
absence of a parent during questioning, is a
factor in determining voluntariness, but is
not determinative of whether defendant's
confession should be suppressed. [Citation]
However, where the State failed to take
appropriate steps to ensure that a juvenile
defendant had an opportunity to confer with
an interested adult, either a parent or a
youth officer, this court has held that the
police conduct rendered his confession
inadmissible. [Citation] R.B., 232 Ill.
App. 3d at 593.
The court then held that the confession was involuntary.
Considering the totality of the circumstances, we conclude that
the trial court's determination that defendant's first confession
given between 8:30 a.m. and 9 a.m. was voluntary was against the
manifest weight of the evidence. Defendant was an emotionally
disturbed 14-year-old person. He had previously been admitted to a
psychiatric hospital and had attended Oak Therapeutic Day School and
behavior disorder programs at five schools.
Most importantly, no adult interested in defendant's welfare was
present during his initial interrogation when defendant first
confessed to the police. The police officers testified that they
initially interrogated defendant from 8:30 to 9 a.m., then contacted
the youth officer at 9 a.m. The youth officer testified that she was
introduced to defendant shortly after 9 a.m., but did not speak with
him at that time. She returned to her office until the assistant
State's Attorney arrived at 10:30 a.m. Although the youth officer was
present during defendant's subsequent statement to the assistant
State's Attorney, there was no evidence that she ever spoke with
defendant alone at any time. Moreover, although defendant's mother
was called, there was no evidence that the police tried to contact her
before they questioned defendant at 8:30 a.m.
Therefore, we find the first confession involuntary. Because the
confession should have been suppressed, we reverse the conviction and
remand for a new trial without the first confession. However, the
second confession, to the assistant State's Attorney, is admissible.
Because we are ordering a new trial, we will not discuss the
jury, closing argument, or sentencing issues. We will, however,
discuss whether the jury should have been instructed on the lesser-
included offense of involuntary manslaughter since that issue may
appear in the new trial.
It is well established that an instruction defining the lesser
offense should be given if there is evidence in the record that, if
believed by the jury, would reduce the crime to a lesser-included
offense. People v. Valdez, 230 Ill. App. 3d 975, 985, 595 N.E.2d 1245
(1992).
There was no evidence in this case to warrant a jury instruction
on involuntary manslaughter. A person commits involuntary
manslaughter when he "unintentionally kills an individual without
lawful justification ***[and] his acts whether lawful or unlawful
which cause the death are such as are likely to cause death or great
bodily harm to some individual, and he performs them recklessly." 720
ILCS 5/9-3 (West 1992).
There was no evidence that this shooting was reckless or an
accident, but only that the person shot was not the intended victim.
That is not enough for an involuntary manslaughter instruction.
Shooting and killing an innocent bystander when intending to shoot
someone else is evidence of first-degree murder. If defendant had
been shooting aimlessly out the car window at no one and shot someone
by accident, that might be sufficient for an instruction on
involuntary manslaughter. However, there was no such evidence in this
case. Therefore, we reject defendant's contention.
Based on the foregoing, we reverse the circuit court judgment and
remand for a new trial without defendant's first confession.
Defendant's second confession, to the assistant State's Attorney, is
admissible. For double jeopardy purposes, we conclude that the
evidence presented at trial was sufficient for a jury to decide that
defendant was guilty beyond a reasonable doubt. We are not making a
finding as to defendant's guilt or innocence that will be binding in a
new trial, but rather our consideration of the evidence admitted at
trial will protect defendant's constitutional right against double
jeopardy. See People v. Taylor, 76 Ill. 2d 289, 309-310, 391 N.E.2d 366 (1979).
Reversed and remanded.
Wolfson, P.J., and McNamara, J., concur.
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