People v. Groves
Annotate this Case
THIRD DIVISION
February 04, 1998
No. 1-95-4074
THE PEOPLE OF THE STATE OF ILLINOIS,
Plaintiff-Appellee,
v.
DEWAYNE GROVES,
Defendant-Appellant. )
)
)
)
)
)
)
)
) Appeal from the
Circuit Court of
Cook County
No. 95 CR 19632
Honorable
Reginald Baker,
Judge Presiding.
JUSTICE CAHILL delivered the opinion of the court:
After a jury trial defendant, Dewayne Groves, was found guilty
of attempted first degree murder, armed violence, aggravated
battery, and aggravated battery of a child. He was sentenced to 30
years in prison. Defendant appeals. We affirm.
At trial, Michael Watson and John Wade testified for the State
about the events that led up to a shooting on June 4, 1995. About
a half hour before the shooting, Watson was talking with a neighbor
in the alley behind his house when he saw defendant and a group of
men, including Wade, gathering in the alley. Watson had lived at
148th and Maplewood for 28 years and had known defendant "all his
life."
Two of the men, Shantell and Antoine, separated from the rest
of the group as though they were about to fight. They had fought
each other the day before and Shantell had stabbed Antoine in the
shoulder. According to Wade, Shantell was "acting kind of crazy"
and "pretending to have a gun."
Before blows were struck, Donald Hargrove walked up to the
group and broke up the fight, telling everyone to go home.
Hargrove yelled "GD, GD, GD" which, the record reveals, stood for
Gangster Disciples. Both Watson and Wade recalled that Hargrove
walked up to defendant, who was a Black Disciple (BD), and "got in
his face" by yelling "GD!" and holding his finger in defendant's
face. According to Wade, who was in the alley, Hargrove also
pushed defendant and told him he would harm him if the fight went
forward.
Defendant and the rest of the group began to disperse, and
Wade heard defendant say, as he walked out of the alley with David
Carothers, that he was going to "get some of his BD's." Defendant
and codefendant Carothers then got into a black car and drove off.
Shantell calmed down and the rest of the group, including Watson,
Wade, Hargrove, Shantell and Antoine, walked from the alley to the
front of the houses.
About a half hour after defendant and Carothers left, Watson,
Wade, Antoine, Hargrove and some of the other men from the alley
were standing in front of Wade's house at 148th and Maplewood, on
the west side of the street. Several neighborhood children were
playing nearby.
Four-year-old Shaneal was on her bike, next to Hargrove, as a
black car came down the street toward the group. The car, which
both Wade and Watson recognized, was coming toward them at a normal
rate of speed. Defendant was in the front passenger seat and
Carothers was driving; neither man attempted to hide his identity
and both were looking at the group. Neither Watson nor Wade could
see if anyone was in the back seat of the car, because the back
windows were tinted and they were opened only slightly.
Just as the car reached the group, it slowed to one or two
miles per hour, and an arm holding a gun emerged from the partially
opened rear passenger window behind the driver's side. The shooter
began firing at the group. Watson and Wade were unable to identify
the shooter. However, they were certain defendant, who was visible
and sitting in the front passenger seat, was not the shooter. The
shooting stopped for a moment as the car crawled forward, and it
appeared to Wade as though the shooter moved closer to the window
for a better shot.
Watson and the other men began pushing the children down on
the ground, and the shooter fired a second round of shots. The
shooting stopped again for a moment and then the shooter fired a
third round of shots. The car then sped off, turned around in a
cul-de-sac, and drove back down the street. Both Wade and Watson
estimated that a total of five or six shots were fired.
As Wade got up from the ground, he saw that Shaneal had been
shot. Wade's brother picked up the little girl and took her to
Wade's van. Wade drove Shaneal to the hospital.
Meanwhile, Watson ran into his house to call the police.
Watson and some of the other men then started down the street to
tell Shaneal's mother what had happened.
After Wade drove back from the hospital he saw defendant and
Carothers walking into a minimart at 150th Street and Dixie
Highway, about four block east of the scene of the shooting. Wade
went home to see if the police were still at the scene. Upon
learning that the police had left, Watson, Wade and several other
men got into a van and went to the minimart to meet defendant and
Carothers.
Defendant and Carothers walked out of the minimart, eating
chips and drinking pop. They did not flee or resist when the group
confronted them. The group detained defendant and Carothers until
the police came and arrested them.
The defense presented no witnesses. The jury found defendant
guilty.
Defendant first argues that the trial court erred in denying
defendant's motion to suppress his statement. He claims it was
obtained in violation of the fourth and fifth amendments of the
United States Constitution and in violation of the Illinois
Constitution and Illinois law. Specifically defendant argues that
he was not brought in front of a judge until four days after his
arrest and this delay and the surrounding circumstances negate the
voluntariness of his confession.
The State argues that the issue is waived because it was not
specifically raised in defendant's posttrial motion. We find the
issue was properly preserved since defendant stated in his
posttrial motion that the court erred in admitting his out-of-court
statements. People v. Brown, 150 Ill. App. 3d 535, 540-41, 501 N.E.2d 1347 (1986) (specificity in a posttrial motion is sufficient
when it alerts the trial judge to the error).
At the hearing on defendant's motion to quash and suppress his
statement, Detective Williams and Assistant State's Attorney Cece
testified that they interviewed defendant various times between
June 4 and June 7, 1995, while defendant was in custody. They
testified that he was given Miranda warnings each time. On two
occasions he signed a form waiving his Miranda rights. According
to Williams and Cece, defendant was interviewed six times during
that time period at different times of the day and night.
A prisoner log reflected that defendant was fed on June 5,
1995, at 1:30 p.m., on June 6, 1995, at 7 a.m., 1:30 p.m., and 8:10
p.m., and on June 7, 1995, at 7 a.m. and 1:30 p.m.
Williams stated that during the time defendant was in custody,
Williams was conducting lineups, looking for witnesses, examining
the crime scene and looking for other evidence.
Barbara Anderson, codefendant Carothers' fianc‚e, testified
that she spoke with Detective Williams by telephone on June 4,
1995, at about 5 p.m. Williams told Anderson that there were no
charges pending against defendant and Carothers and that it would
be easier for the codefendants if the shooter were found. They
spoke again by telephone on June 5, 1995, at about 4 p.m. Williams
then brought Anderson a picture to identify the shooter. Anderson
was also brought to the police station.
After speaking with Detective Williams by telephone on June 5
and 6, 1995, Anderson was offered a chance to visit Carothers at 11
p.m. on June 7, 1995. Williams drove Anderson to the station and
while in the car Williams told Anderson that Carothers and
defendant were not cooperating.
Anderson testified that she received six or seven telephone
calls from defendant between June 5 and June 7. One call was on
June 6 1995, at 3 a.m. and the next was 11 p.m. the same day. Some
of the calls were three-way conversations with a person Anderson
believed to be Detective Williams.
Gerlene Foulks, defendant's mother, testified that on the
evening of June 4, 1995, she heard that her son had been arrested.
She went to the Harvey police station at about 6 p.m. and was told
that they had no record of her son being arrested. Ms. Foulks
called the station on June 5 and left several messages for
Detective Lewellyn, which were not returned. She called again on
June 7 and was told that her son was being interrogated. Ms.
Foulks finally spoke with defendant on June 9.
Defendant testified that he was 19 years old and had been
arrested two other times. Defendant testified that his cell was
cold and that his cell and mattress were dirty. He did not get
much sleep from June 4 to June 8, 1995. Defendant was fed one
small doughnut and coffee for breakfast and a small hamburger and
a few fries for lunch. On June 7, 1995, defendant gave his
statement at about 2:30 a.m. He had slept an hour or two the
previous 24 hours. He was tired and hungry. The only telephone
calls he was able to make were to Barbara Anderson, at the
instruction of the officers. Defendant did not sleep much while in
custody because his cell was close to the processing area. He did
use the washroom facilities in this cell.
Defendant testified that while he was giving his statement,
Assistant State's Attorney Cece, in the presence of Williams and
Lewellyn, grabbed a chair, slammed it down and told defendant to
sit down and "tell it like he wanted to hear it." Williams told
defendant that he was going to be charged with murder and put to
death by lethal injection or the electric chair. Defendant then
began to cry.
Defendant further testified that Cece wrote the statement and
that he and Cece were in the room for 2 1/2 hours while the
statement was prepared. Defendant was not given an opportunity to
write the statement. Defendant and Carothers were together when
the statment was written. Cece added the reference to the street
gangs in the statement. Defendant signed the statement after being
told to by Cece and while he was crying. Defendant stated that
Cece ripped up the first statement defendant gave and wrote a
second statement. At the hearing, defendant identified his
signature on each page of the eight-page statement but testified
that he did not read the statement.
Defendant did not allege that Cece or officers physically
abused or mistreated him. Defendant acknowledged that he had been
read Miranda rights before speaking with the officers, but they
were not read to him before his conversation with Williams on June
4, 1995. Williams told defendant that he would be released if he
cooperated.
On June 5, 1995, defendant voluntarily took Williams to the
shooter's home. Defendant acknowledged his signature on a Miranda
form dated June 5, 1995, but did not recall signing it that day.
Defendant believed that Cece gave him that document to sign after
he signed the written statement.
Cece, Williams and Lewellyn were present during defendant's
three or four telephone calls to Barbara Anderson. Defendant never
told Lewellyn that he wanted a lawyer. On Monday June 5, 1995,
Williams told defendant that the victim had died.
Assistant State's Attorney Cece was recalled as a rebuttal
witness and denied that he had defendant sign a Miranda rights form
dated June 5, 1995. Cece denied shouting or slamming down a chair
during his interview with defendant. Cece also denied that he tore
up one statement and wrote another. Cece claimed that defendant
made corrections to his statement. Cece acknowledged that he, not
defendant, wrote the changes. Cece spoke with defendant for an
hour and a half with Detective Lewellyn present. Defendant did not
tell Cece he was mistreated, deprived of sleep or not fed.
Defendant showed no sign of injury. Cece denied that defendant was
told that the victim had died and that he would be charged with
first degree murder and put to death by lethal injection or the
electric chair. Cece also denied that defendant was told that he
would be released if he cooperated.
Cece testified that defendant agreed to give a written
statement and that Cece wrote the statement, incorporating his
questions and defendant's answers. Only one version of defendant's
statement was written. Defendant read a portion of the statement
out loud, made corrections and signed the statement.
On cross-examination, Cece testified that he may have awakened
defendant when he spoke to him at 3 a.m. on June 7, 1995. Cece
acknowledged that he transcribed defendant's statement even though
defendant could read and write. Cece stated that defendant's
statement was not taken verbatim.
Cece also testified he did not take a written statement from
defendant when he spoke to him at 3 a.m. because of the continuing
investigation to find the shooter. The first time defendant was
brought before a judge was June 8, 1995.
Detective Lewellyn testified that on the morning of June 5,
1995, he interviewed defendant in the presence of Williams.
Lewellyn identified the Miranda rights form defendant signed that
morning. Lewellyn stated that June 5, 1995, was the only day that
he attended an interview of either defendant or Carothers.
Lewellyn denied telling defendant that the victim had died or that
defendant would be charged with first degree murder and put to
death. As of June 5, 1995, defendant had not been charged but was
still held for questioning.
The trial court denied defendant's motion to suppress his
statement, finding that defendant's age, previous contacts with law
enforcement officials, ability to speak with Barbara Anderson by
telephone, and opportunity to sleep and eat during custody showed
that his statement was voluntarily given. The trial court also
disbelieved defendant's testimony that he had signed documents that
he had not read.
Generally, we may not disturb a trial court's ruling on a
motion to suppress unless it is manifestly erroneous. People v.
James, 163 Ill. 2d 302, 645 N.E.2d 195 (1994). However, when
neither the facts nor credibility of the witnesses is in dispute,
we may review the ruling de novo. People v. Dilworth, 169 Ill. 2d 195, 201, 661 N.E.2d 310 (1996). Here, facts are in dispute and
the credibility of witnesses is at issue. So we must decide
whether the trial court's findings were manifestly erroneous.
Defendant argues that his statement should have been
suppressed because Illinois law provides that an arrested person
shall be arraigned "without unnecessary delay." 725 ILCS 5/109-
1(a) (West 1994). Under the fourth amendment of the United States
Constitution, a defendant arrested without a warrant has the right
to a probable cause hearing as a prerequisite to an extended
restraint on liberty. People v. Dees, 85 Ill. 2d 233, 237, 422 N.E.2d 616 (1981).
The Supreme Court has held that a judicial determination of
probable cause within 48 hours of arrest generally passes
constitutional muster. County of Riverside v. McLaughlin, 500 U.S. 44, 56, 114 L. Ed. 2d 49, 63, 111 S. Ct. 1661, 1670 (1991). When
a probable cause determination is not made within 48 hours of
arrest, the defendant no longer has the burden to show unreasonable
delay. The burden shifts to the State to show the existence of an
emergency or other extraordinary circumstance. McLaughlin, 500 U.S. at 57, 114 L. Ed at 63, S. Ct. at 1670.
The Supreme Court has not fashioned a remedy for the State's
failure to obtain judicial authorization for a significant pretrial
detention period that violates the fourth amendment. See Powell v.
Nevada, 511 U.S. 79, 128 L. Ed. 2d 1, 114 S. Ct 1280 (1994).
While there is no separate remedy for violation of the
presentment rule, our supreme court has held that the delay is a
factor to be considered when determining whether the confession was
voluntary. People v. House, 141 Ill. 2d 323, 380, 566 N.E.2d 259
(1990).
To determine if a statement is made voluntarily, we consider
the defendant's age, education and intelligence, his experience
with the criminal justice system, the duration of the detention and
the interrogations, whether the defendant was advised of his
constitutional rights, and whether defendant was subjected to
physical mistreatment or abuse. People v. Williams, 230 Ill. App.
3d 761, 776, 595 N.E.2d 1115 (1992).
Defendant argues that the length of confinement is a factor
that should be weighed heavily in his favor, given that the State
gave no extraordinary circumstances to justify detaining him so
long. Defendant adds that he was only 19, did not sleep much, may
have been awakened during the night to be interrogated, and that
many of the interrogations happened in the late evening and early
morning hours.
Defendant observes that a delay for the purpose of "gathering
*** additional evidence to justify the arrest" was listed by the
Supreme Court as one example of an "unreasonable" delay. Officer
Williams testified that additional investigative activities
happened during defendant's detention, but the record does not
reflect that the delay in his arraignment was caused by gathering
additional evidence to support his arrest. Defendant has never
claimed that he was arrested without probable cause. According to
Williams' testimony, the officers were trying to obtain information
about the shooter.
The record reflects that defendant engaged in an ongoing
dialogue with police throughout his detention. Illinois courts
have expressly held that "the 'delay' involved in taking a
voluntary statement from a suspect" who is in lawful custody, had
knowingly waived his Miranda rights and expressed a willingness to
talk to police, constitutes a "necessary" delay within the terms of
the Illinois statute. People v. Smith, 203 Ill. App. 3d 545, 563,
561 N.E.2d 252 (1990). As the Smith court explained, the Illinois
prompt presentment statute does not oblige the police to
"interrupt" an interrogation so long as the length is not
unreasonable and the suspect's statements continue to be voluntary.
Smith, 203 Ill. App. 3d at 563.
The record shows that defendant made several brief statements
to the police during his detention. Each statement was made after
defendant waived his Miranda rights. The State contends that the
reason for the delay was to follow up on the information defendant
gave them. Defendant's own witnesses establish that he was engaged
in a voluntary dialogue with the police during his detention.
According to defendant, he voluntarily agreed to show detectives
"where the shooter stayed." Barbara Anderson testified that
beginning on the night of Monday June 5, defendant made the first
of several calls to her house from the police station. Defendant
asked her questions about the alleged shooter. Defendant called
Anderson at least four times between June 5 and June 7. Anderson
stated that, during the first three calls, she was able to provide
defendant with information about the alleged shooter, which she
believed defendant relayed to the police.
At the suppression hearing the court heard all the evidence
and determined that defendant's age, previous experience with law
enforcement, his ability to speak to Anderson on the telephone, and
his opportunity to sleep and eat while in custody showed that his
confession was voluntarily given. The court found the State's
witnesses more credible. Determining the credibility of witnesses
and resolving conflicts in testimony are functions of the trial
court. People v. Hill, 272 Ill. App. 3d 597, 603, 650 N.E.2d 558
(1995). A reviewing court will give great deference to the trial
court's factual findings because the court stands in the best
position to weigh the credibility of the witnesses. Hill, 272 Ill.
App. 3d at 604. The court's finding was not manifestly erroneous.
Defendant next argues that his convictions should be reversed
because there was reasonable doubt of his guilt under the
accountability theory.
A criminal conviction will be set aside when the evidence is
so unsatisfactory that reasonable doubt as to defendant's guilt
remains. People v. Byron, 164 Ill. 2d 279, 299, 647 N.E.2d 946
(1995). Viewing the evidence in the light most favorable to the
prosecution, we must determine whether a rational trier of fact
could have found all elements of the offense beyond a reasonable
doubt. People v. Kitchen, 159 Ill. 2d 1, 25, 636 N.E.2d 433
(1994). A conviction under the accountability theory requires the
State to prove beyond a reasonable doubt that the defendant, with
intent to promote or facilitate the commission of the offense,
solicits, aids, abets, agrees or attempts to aid another person in
committing the offense before or during the offense. People v.
Smith, 278 Ill. App. 3d 343, 355, 662 N.E.2d 480 (1996); 720 ILCS
5/5-2(c) (West 1996). Mere presence at the scene, with knowledge
that a crime is being committed, is insufficient to establish
accountability. In re W.C., 167 Ill. 2d 307, 338, 657 N.E.2d 908
(1995).
Defendant relies on People v. Manley, 1 Ill. App. 3d 693, 274 N.E.2d 373 (1971). In Manley the only evidence that established
the defendant was involved in the robbery was that he was standing
outside the gas station with a companion at the time another
companion committed a robbery inside the gas station. When the
defendant found out about the robbery, he fled. He and his
companion both testified that the defendant was unaware of the
robbery. Manley, 1 Ill. App. 3d at 694-95 . The court found
reasonable doubt existed as to the defendant's guilt. Manley, 1
Ill. App. 3d at 696.
Manley is distinguishable. Here, testimony revealed that
defendant declared his intent to round up some gang members after
he was pushed by Hargrove. Defendant admitted this intent in his
statement. This evidence was in addition to defendant's presence
in the car during the shooting and his flight from the scene.
Accountability may be established by presence at the scene of
the crime, a finding that defendant had knowledge of criminal
intent, flight, association with co-conspirators after the
incident, and a failure to report the incident. People v.
Batchelor, 171 Ill. 2d 367, 377-78, 665 N.E.2d 777 (1996).
When we view the facts in the light most favorable to the
State we find that a rational trier of fact could have found
defendant liable under the accountability theory. Two eyewitnesses
place him in the car with the shooter and defendant does not deny
his presence in the car. It is reasonable to infer that he had
knowledge of criminal intent from his statement that he was going
to round up fellow gang members after a scuffle in the alley. His
intent to seek retribution was admitted in his statement along with
his knowledge of a gun in the car. Evidence also revealed that he
fled in the car after the shooting and was seen at a convenience
store shortly after the shooting. He did not report the crime.
Defendant's conviction was proven beyond a reasonable doubt.
Defendant also argues that there was insufficient evidence of
corpus delicti for his accountability of the crimes charged.
Corpus delicti requires proof of the injury or loss and
causation of the loss by criminal conduct. People v. Furby, 138 Ill. 2d 434, 446, 563 N.E.2d 421 (1990). Corpus delicti may not
rest solely on a defendant's extrajudicial statement or admission.
People v. Howard, 147 Ill. 2d 103, 126, 588 N.E.2d 1044 (1991).
The State must present independent evidence that tends to show the
commission of the offense and to corroborate the facts in the
defendant's statement. Howard, 147 Ill. 2d at 126-27.
Defendant contends that only his statement tends to prove his
intent to aid and abet in the shooting. Defendant misapplies
corpus delicti. We find no case law supporting defendant's
position that proof of corpus delicti must tend to prove
accountability of the crimes charged. Accountability is the theory
under which defendant was convicted, but not the crime of which he
was convicted. People v. Holmes, 67 Ill. 2d 236, 367 N.E.2d 663
(1977). In Holmes the defendant argued that corpus delicti of
accountability-murder was not proven since there must be proof that
some person committed an act for which defendant was accountable.
The court stated that it is not a requirement of corpus delicti
that evidence apart from the confession tend to connect defendant
to the crime charged. Holmes, 67 Ill. 2d at 239-40, citing People
v. Norcutt, 44 Ill. 2d 256, 255 N.E.2d 442 (1970). Proof of corpus
delicti requires proof of the injury and that it was caused by
criminal conduct. Here, there can be no dispute that the
eyewitness accounts of the shooting established the corpus delicti
of all the crimes charged: attempted first degree murder, armed
violence, aggravated battery, and aggravated battery of a child.
Last, defendant argues that the trial court erred in
sentencing him on a less serious offense and defendant's sentence
of 30 years' imprisonment should be reduced because of significant
rehabilitative potential.
Since defendant failed to raise the correctness or length of
his sentence in his posttrial motion, defendant has waived this
issue. People v. Beals, 162 Ill. 2d 497, 510-11, 643 N.E.2d 789
(1994). Even in the absence of waiver, there is nothing in the
record to show that the trial court failed to consider appropriate
mitigating factors in imposing sentence.
We affirm the judgment of the trial court. As part of our
judgment, we grant the State's request and assess defendant $100 in
costs for defending this appeal under People v. Nicholls, 71 Ill. 2d 166, 374 N.E.2d 194 (1978), and $50 for oral argument under
People v. Agnew, 105 Ill. 2d 275, 473 N.E.2d 1319 (1985).
Affirmed.
LEAVITT, P.J., and GORDON, J., concur.
February 04, 1998
No. 1-95-4074
THE PEOPLE OF THE STATE OF ILLINOIS,
Plaintiff-Appellee,
v.
DEWAYNE GROVES,
Defendant-Appellant. )
)
)
)
)
)
)
)
) Appeal from the
Circuit Court of
Cook County
No. 95 CR 19632
Honorable
Reginald Baker,
Judge Presiding.
JUSTICE CAHILL delivered the opinion of the court:
After a jury trial defendant, Dewayne Groves, was found guilty
of attempted first degree murder, armed violence, aggravated
battery, and aggravated battery of a child. He was sentenced to 30
years in prison. Defendant appeals. We affirm.
At trial, Michael Watson and John Wade testified for the State
about the events that led up to a shooting on June 4, 1995. About
a half hour before the shooting, Watson was talking with a neighbor
in the alley behind his house when he saw defendant and a group of
men, including Wade, gathering in the alley. Watson had lived at
148th and Maplewood for 28 years and had known defendant "all his
life."
Two of the men, Shantell and Antoine, separated from the rest
of the group as though they were about to fight. They had fought
each other the day before and Shantell had stabbed Antoine in the
shoulder. According to Wade, Shantell was "acting kind of crazy"
and "pretending to have a gun."
Before blows were struck, Donald Hargrove walked up to the
group and broke up the fight, telling everyone to go home.
Hargrove yelled "GD, GD, GD" which, the record reveals, stood for
Gangster Disciples. Both Watson and Wade recalled that Hargrove
walked up to defendant, who was a Black Disciple (BD), and "got in
his face" by yelling "GD!" and holding his finger in defendant's
face. According to Wade, who was in the alley, Hargrove also
pushed defendant and told him he would harm him if the fight went
forward.
Defendant and the rest of the group began to disperse, and
Wade heard defendant say, as he walked out of the alley with David
Carothers, that he was going to "get some of his BD's." Defendant
and codefendant Carothers then got into a black car and drove off.
Shantell calmed down and the rest of the group, including Watson,
Wade, Hargrove, Shantell and Antoine, walked from the alley to the
front of the houses.
About a half hour after defendant and Carothers left, Watson,
Wade, Antoine, Hargrove and some of the other men from the alley
were standing in front of Wade's house at 148th and Maplewood, on
the west side of the street. Several neighborhood children were
playing nearby.
Four-year-old Shaneal was on her bike, next to Hargrove, as a
black car came down the street toward the group. The car, which
both Wade and Watson recognized, was coming toward them at a normal
rate of speed. Defendant was in the front passenger seat and
Carothers was driving; neither man attempted to hide his identity
and both were looking at the group. Neither Watson nor Wade could
see if anyone was in the back seat of the car, because the back
windows were tinted and they were opened only slightly.
Just as the car reached the group, it slowed to one or two
miles per hour, and an arm holding a gun emerged from the partially
opened rear passenger window behind the driver's side. The shooter
began firing at the group. Watson and Wade were unable to identify
the shooter. However, they were certain defendant, who was visible
and sitting in the front passenger seat, was not the shooter. The
shooting stopped for a moment as the car crawled forward, and it
appeared to Wade as though the shooter moved closer to the window
for a better shot.
Watson and the other men began pushing the children down on
the ground, and the shooter fired a second round of shots. The
shooting stopped again for a moment and then the shooter fired a
third round of shots. The car then sped off, turned around in a
cul-de-sac, and drove back down the street. Both Wade and Watson
estimated that a total of five or six shots were fired.
As Wade got up from the ground, he saw that Shaneal had been
shot. Wade's brother picked up the little girl and took her to
Wade's van. Wade drove Shaneal to the hospital.
Meanwhile, Watson ran into his house to call the police.
Watson and some of the other men then started down the street to
tell Shaneal's mother what had happened.
After Wade drove back from the hospital he saw defendant and
Carothers walking into a minimart at 150th Street and Dixie
Highway, about four block east of the scene of the shooting. Wade
went home to see if the police were still at the scene. Upon
learning that the police had left, Watson, Wade and several other
men got into a van and went to the minimart to meet defendant and
Carothers.
Defendant and Carothers walked out of the minimart, eating
chips and drinking pop. They did not flee or resist when the group
confronted them. The group detained defendant and Carothers until
the police came and arrested them.
The defense presented no witnesses. The jury found defendant
guilty.
Defendant first argues that the trial court erred in denying
defendant's motion to suppress his statement. He claims it was
obtained in violation of the fourth and fifth amendments of the
United States Constitution and in violation of the Illinois
Constitution and Illinois law. Specifically defendant argues that
he was not brought in front of a judge until four days after his
arrest and this delay and the surrounding circumstances negate the
voluntariness of his confession.
The State argues that the issue is waived because it was not
specifically raised in defendant's posttrial motion. We find the
issue was properly preserved since defendant stated in his
posttrial motion that the court erred in admitting his out-of-court
statements. People v. Brown, 150 Ill. App. 3d 535, 540-41, 501 N.E.2d 1347 (1986) (specificity in a posttrial motion is sufficient
when it alerts the trial judge to the error).
At the hearing on defendant's motion to quash and suppress his
statement, Detective Williams and Assistant State's Attorney Cece
testified that they interviewed defendant various times between
June 4 and June 7, 1995, while defendant was in custody. They
testified that he was given Miranda warnings each time. On two
occasions he signed a form waiving his Miranda rights. According
to Williams and Cece, defendant was interviewed six times during
that time period at different times of the day and night.
A prisoner log reflected that defendant was fed on June 5,
1995, at 1:30 p.m., on June 6, 1995, at 7 a.m., 1:30 p.m., and 8:10
p.m., and on June 7, 1995, at 7 a.m. and 1:30 p.m.
Williams stated that during the time defendant was in custody,
Williams was conducting lineups, looking for witnesses, examining
the crime scene and looking for other evidence.
Barbara Anderson, codefendant Carothers' fianc‚e, testified
that she spoke with Detective Williams by telephone on June 4,
1995, at about 5 p.m. Williams told Anderson that there were no
charges pending against defendant and Carothers and that it would
be easier for the codefendants if the shooter were found. They
spoke again by telephone on June 5, 1995, at about 4 p.m. Williams
then brought Anderson a picture to identify the shooter. Anderson
was also brought to the police station.
After speaking with Detective Williams by telephone on June 5
and 6, 1995, Anderson was offered a chance to visit Carothers at 11
p.m. on June 7, 1995. Williams drove Anderson to the station and
while in the car Williams told Anderson that Carothers and
defendant were not cooperating.
Anderson testified that she received six or seven telephone
calls from defendant between June 5 and June 7. One call was on
June 6 1995, at 3 a.m. and the next was 11 p.m. the same day. Some
of the calls were three-way conversations with a person Anderson
believed to be Detective Williams.
Gerlene Foulks, defendant's mother, testified that on the
evening of June 4, 1995, she heard that her son had been arrested.
She went to the Harvey police station at about 6 p.m. and was told
that they had no record of her son being arrested. Ms. Foulks
called the station on June 5 and left several messages for
Detective Lewellyn, which were not returned. She called again on
June 7 and was told that her son was being interrogated. Ms.
Foulks finally spoke with defendant on June 9.
Defendant testified that he was 19 years old and had been
arrested two other times. Defendant testified that his cell was
cold and that his cell and mattress were dirty. He did not get
much sleep from June 4 to June 8, 1995. Defendant was fed one
small doughnut and coffee for breakfast and a small hamburger and
a few fries for lunch. On June 7, 1995, defendant gave his
statement at about 2:30 a.m. He had slept an hour or two the
previous 24 hours. He was tired and hungry. The only telephone
calls he was able to make were to Barbara Anderson, at the
instruction of the officers. Defendant did not sleep much while in
custody because his cell was close to the processing area. He did
use the washroom facilities in this cell.
Defendant testified that while he was giving his statement,
Assistant State's Attorney Cece, in the presence of Williams and
Lewellyn, grabbed a chair, slammed it down and told defendant to
sit down and "tell it like he wanted to hear it." Williams told
defendant that he was going to be charged with murder and put to
death by lethal injection or the electric chair. Defendant then
began to cry.
Defendant further testified that Cece wrote the statement and
that he and Cece were in the room for 2 1/2 hours while the
statement was prepared. Defendant was not given an opportunity to
write the statement. Defendant and Carothers were together when
the statment was written. Cece added the reference to the street
gangs in the statement. Defendant signed the statement after being
told to by Cece and while he was crying. Defendant stated that
Cece ripped up the first statement defendant gave and wrote a
second statement. At the hearing, defendant identified his
signature on each page of the eight-page statement but testified
that he did not read the statement.
Defendant did not allege that Cece or officers physically
abused or mistreated him. Defendant acknowledged that he had been
read Miranda rights before speaking with the officers, but they
were not read to him before his conversation with Williams on June
4, 1995. Williams told defendant that he would be released if he
cooperated.
On June 5, 1995, defendant voluntarily took Williams to the
shooter's home. Defendant acknowledged his signature on a Miranda
form dated June 5, 1995, but did not recall signing it that day.
Defendant believed that Cece gave him that document to sign after
he signed the written statement.
Cece, Williams and Lewellyn were present during defendant's
three or four telephone calls to Barbara Anderson. Defendant never
told Lewellyn that he wanted a lawyer. On Monday June 5, 1995,
Williams told defendant that the victim had died.
Assistant State's Attorney Cece was recalled as a rebuttal
witness and denied that he had defendant sign a Miranda rights form
dated June 5, 1995. Cece denied shouting or slamming down a chair
during his interview with defendant. Cece also denied that he tore
up one statement and wrote another. Cece claimed that defendant
made corrections to his statement. Cece acknowledged that he, not
defendant, wrote the changes. Cece spoke with defendant for an
hour and a half with Detective Lewellyn present. Defendant did not
tell Cece he was mistreated, deprived of sleep or not fed.
Defendant showed no sign of injury. Cece denied that defendant was
told that the victim had died and that he would be charged with
first degree murder and put to death by lethal injection or the
electric chair. Cece also denied that defendant was told that he
would be released if he cooperated.
Cece testified that defendant agreed to give a written
statement and that Cece wrote the statement, incorporating his
questions and defendant's answers. Only one version of defendant's
statement was written. Defendant read a portion of the statement
out loud, made corrections and signed the statement.
On cross-examination, Cece testified that he may have awakened
defendant when he spoke to him at 3 a.m. on June 7, 1995. Cece
acknowledged that he transcribed defendant's statement even though
defendant could read and write. Cece stated that defendant's
statement was not taken verbatim.
Cece also testified he did not take a written statement from
defendant when he spoke to him at 3 a.m. because of the continuing
investigation to find the shooter. The first time defendant was
brought before a judge was June 8, 1995.
Detective Lewellyn testified that on the morning of June 5,
1995, he interviewed defendant in the presence of Williams.
Lewellyn identified the Miranda rights form defendant signed that
morning. Lewellyn stated that June 5, 1995, was the only day that
he attended an interview of either defendant or Carothers.
Lewellyn denied telling defendant that the victim had died or that
defendant would be charged with first degree murder and put to
death. As of June 5, 1995, defendant had not been charged but was
still held for questioning.
The trial court denied defendant's motion to suppress his
statement, finding that defendant's age, previous contacts with law
enforcement officials, ability to speak with Barbara Anderson by
telephone, and opportunity to sleep and eat during custody showed
that his statement was voluntarily given. The trial court also
disbelieved defendant's testimony that he had signed documents that
he had not read.
Generally, we may not disturb a trial court's ruling on a
motion to suppress unless it is manifestly erroneous. People v.
James, 163 Ill. 2d 302, 645 N.E.2d 195 (1994). However, when
neither the facts nor credibility of the witnesses is in dispute,
we may review the ruling de novo. People v. Dilworth, 169 Ill. 2d 195, 201, 661 N.E.2d 310 (1996). Here, facts are in dispute and
the credibility of witnesses is at issue. So we must decide
whether the trial court's findings were manifestly erroneous.
Defendant argues that his statement should have been
suppressed because Illinois law provides that an arrested person
shall be arraigned "without unnecessary delay." 725 ILCS 5/109-
1(a) (West 1994). Under the fourth amendment of the United States
Constitution, a defendant arrested without a warrant has the right
to a probable cause hearing as a prerequisite to an extended
restraint on liberty. People v. Dees, 85 Ill. 2d 233, 237, 422 N.E.2d 616 (1981).
The Supreme Court has held that a judicial determination of
probable cause within 48 hours of arrest generally passes
constitutional muster. County of Riverside v. McLaughlin, 500 U.S. 44, 56, 114 L. Ed. 2d 49, 63, 111 S. Ct. 1661, 1670 (1991). When
a probable cause determination is not made within 48 hours of
arrest, the defendant no longer has the burden to show unreasonable
delay. The burden shifts to the State to show the existence of an
emergency or other extraordinary circumstance. McLaughlin, 500 U.S. at 57, 114 L. Ed at 63, S. Ct. at 1670.
The Supreme Court has not fashioned a remedy for the State's
failure to obtain judicial authorization for a significant pretrial
detention period that violates the fourth amendment. See Powell v.
Nevada, 511 U.S. 79, 128 L. Ed. 2d 1, 114 S. Ct 1280 (1994).
While there is no separate remedy for violation of the
presentment rule, our supreme court has held that the delay is a
factor to be considered when determining whether the confession was
voluntary. People v. House, 141 Ill. 2d 323, 380, 566 N.E.2d 259
(1990).
To determine if a statement is made voluntarily, we consider
the defendant's age, education and intelligence, his experience
with the criminal justice system, the duration of the detention and
the interrogations, whether the defendant was advised of his
constitutional rights, and whether defendant was subjected to
physical mistreatment or abuse. People v. Williams, 230 Ill. App.
3d 761, 776, 595 N.E.2d 1115 (1992).
Defendant argues that the length of confinement is a factor
that should be weighed heavily in his favor, given that the State
gave no extraordinary circumstances to justify detaining him so
long. Defendant adds that he was only 19, did not sleep much, may
have been awakened during the night to be interrogated, and that
many of the interrogations happened in the late evening and early
morning hours.
Defendant observes that a delay for the purpose of "gathering
*** additional evidence to justify the arrest" was listed by the
Supreme Court as one example of an "unreasonable" delay. Officer
Williams testified that additional investigative activities
happened during defendant's detention, but the record does not
reflect that the delay in his arraignment was caused by gathering
additional evidence to support his arrest. Defendant has never
claimed that he was arrested without probable cause. According to
Williams' testimony, the officers were trying to obtain information
about the shooter.
The record reflects that defendant engaged in an ongoing
dialogue with police throughout his detention. Illinois courts
have expressly held that "the 'delay' involved in taking a
voluntary statement from a suspect" who is in lawful custody, had
knowingly waived his Miranda rights and expressed a willingness to
talk to police, constitutes a "necessary" delay within the terms of
the Illinois statute. People v. Smith, 203 Ill. App. 3d 545, 563,
561 N.E.2d 252 (1990). As the Smith court explained, the Illinois
prompt presentment statute does not oblige the police to
"interrupt" an interrogation so long as the length is not
unreasonable and the suspect's statements continue to be voluntary.
Smith, 203 Ill. App. 3d at 563.
The record shows that defendant made several brief statements
to the police during his detention. Each statement was made after
defendant waived his Miranda rights. The State contends that the
reason for the delay was to follow up on the information defendant
gave them. Defendant's own witnesses establish that he was engaged
in a voluntary dialogue with the police during his detention.
According to defendant, he voluntarily agreed to show detectives
"where the shooter stayed." Barbara Anderson testified that
beginning on the night of Monday June 5, defendant made the first
of several calls to her house from the police station. Defendant
asked her questions about the alleged shooter. Defendant called
Anderson at least four times between June 5 and June 7. Anderson
stated that, during the first three calls, she was able to provide
defendant with information about the alleged shooter, which she
believed defendant relayed to the police.
At the suppression hearing the court heard all the evidence
and determined that defendant's age, previous experience with law
enforcement, his ability to speak to Anderson on the telephone, and
his opportunity to sleep and eat while in custody showed that his
confession was voluntarily given. The court found the State's
witnesses more credible. Determining the credibility of witnesses
and resolving conflicts in testimony are functions of the trial
court. People v. Hill, 272 Ill. App. 3d 597, 603, 650 N.E.2d 558
(1995). A reviewing court will give great deference to the trial
court's factual findings because the court stands in the best
position to weigh the credibility of the witnesses. Hill, 272 Ill.
App. 3d at 604. The court's finding was not manifestly erroneous.
Defendant next argues that his convictions should be reversed
because there was reasonable doubt of his guilt under the
accountability theory.
A criminal conviction will be set aside when the evidence is
so unsatisfactory that reasonable doubt as to defendant's guilt
remains. People v. Byron, 164 Ill. 2d 279, 299, 647 N.E.2d 946
(1995). Viewing the evidence in the light most favorable to the
prosecution, we must determine whether a rational trier of fact
could have found all elements of the offense beyond a reasonable
doubt. People v. Kitchen, 159 Ill. 2d 1, 25, 636 N.E.2d 433
(1994). A conviction under the accountability theory requires the
State to prove beyond a reasonable doubt that the defendant, with
intent to promote or facilitate the commission of the offense,
solicits, aids, abets, agrees or attempts to aid another person in
committing the offense before or during the offense. People v.
Smith, 278 Ill. App. 3d 343, 355, 662 N.E.2d 480 (1996); 720 ILCS
5/5-2(c) (West 1996). Mere presence at the scene, with knowledge
that a crime is being committed, is insufficient to establish
accountability. In re W.C., 167 Ill. 2d 307, 338, 657 N.E.2d 908
(1995).
Defendant relies on People v. Manley, 1 Ill. App. 3d 693, 274 N.E.2d 373 (1971). In Manley the only evidence that established
the defendant was involved in the robbery was that he was standing
outside the gas station with a companion at the time another
companion committed a robbery inside the gas station. When the
defendant found out about the robbery, he fled. He and his
companion both testified that the defendant was unaware of the
robbery. Manley, 1 Ill. App. 3d at 694-95 . The court found
reasonable doubt existed as to the defendant's guilt. Manley, 1
Ill. App. 3d at 696.
Manley is distinguishable. Here, testimony revealed that
defendant declared his intent to round up some gang members after
he was pushed by Hargrove. Defendant admitted this intent in his
statement. This evidence was in addition to defendant's presence
in the car during the shooting and his flight from the scene.
Accountability may be established by presence at the scene of
the crime, a finding that defendant had knowledge of criminal
intent, flight, association with co-conspirators after the
incident, and a failure to report the incident. People v.
Batchelor, 171 Ill. 2d 367, 377-78, 665 N.E.2d 777 (1996).
When we view the facts in the light most favorable to the
State we find that a rational trier of fact could have found
defendant liable under the accountability theory. Two eyewitnesses
place him in the car with the shooter and defendant does not deny
his presence in the car. It is reasonable to infer that he had
knowledge of criminal intent from his statement that he was going
to round up fellow gang members after a scuffle in the alley. His
intent to seek retribution was admitted in his statement along with
his knowledge of a gun in the car. Evidence also revealed that he
fled in the car after the shooting and was seen at a convenience
store shortly after the shooting. He did not report the crime.
Defendant's conviction was proven beyond a reasonable doubt.
Defendant also argues that there was insufficient evidence of
corpus delicti for his accountability of the crimes charged.
Corpus delicti requires proof of the injury or loss and
causation of the loss by criminal conduct. People v. Furby, 138 Ill. 2d 434, 446, 563 N.E.2d 421 (1990). Corpus delicti may not
rest solely on a defendant's extrajudicial statement or admission.
People v. Howard, 147 Ill. 2d 103, 126, 588 N.E.2d 1044 (1991).
The State must present independent evidence that tends to show the
commission of the offense and to corroborate the facts in the
defendant's statement. Howard, 147 Ill. 2d at 126-27.
Defendant contends that only his statement tends to prove his
intent to aid and abet in the shooting. Defendant misapplies
corpus delicti. We find no case law supporting defendant's
position that proof of corpus delicti must tend to prove
accountability of the crimes charged. Accountability is the theory
under which defendant was convicted, but not the crime of which he
was convicted. People v. Holmes, 67 Ill. 2d 236, 367 N.E.2d 663
(1977). In Holmes the defendant argued that corpus delicti of
accountability-murder was not proven since there must be proof that
some person committed an act for which defendant was accountable.
The court stated that it is not a requirement of corpus delicti
that evidence apart from the confession tend to connect defendant
to the crime charged. Holmes, 67 Ill. 2d at 239-40, citing People
v. Norcutt, 44 Ill. 2d 256, 255 N.E.2d 442 (1970). Proof of corpus
delicti requires proof of the injury and that it was caused by
criminal conduct. Here, there can be no dispute that the
eyewitness accounts of the shooting established the corpus delicti
of all the crimes charged: attempted first degree murder, armed
violence, aggravated battery, and aggravated battery of a child.
Last, defendant argues that the trial court erred in
sentencing him on a less serious offense and defendant's sentence
of 30 years' imprisonment should be reduced because of significant
rehabilitative potential.
Since defendant failed to raise the correctness or length of
his sentence in his posttrial motion, defendant has waived this
issue. People v. Beals, 162 Ill. 2d 497, 510-11, 643 N.E.2d 789
(1994). Even in the absence of waiver, there is nothing in the
record to show that the trial court failed to consider appropriate
mitigating factors in imposing sentence.
We affirm the judgment of the trial court. As part of our
judgment, we grant the State's request and assess defendant $100 in
costs for defending this appeal under People v. Nicholls, 71 Ill. 2d 166, 374 N.E.2d 194 (1978), and $50 for oral argument under
People v. Agnew, 105 Ill. 2d 275, 473 N.E.2d 1319 (1985).
Affirmed.
LEAVITT, P.J., and GORDON, J., concur.
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