People v. McNeal

Fourth Division
July 30, 1998

Nos. 1-97-1400, 1-97-1541 Cons.

THE PEOPLE OF THE STATE OF ILLINOIS, ) APPEAL FROM THE
) CIRCUIT COURT OF
Plaintiff-Appellee, ) COOK COUNTY.
)
v. )
)
CALVIN McNEAL and ANTOINE SCOTT, ) HONORABLE
) STANLEY SACKS,
Defendants-Appellants. ) JUDGE PRESIDING.

JUSTICE WOLFSON delivered the opinion of the court:

At about 2:20 a.m. on May 23, 1994, Dion Massey stood
outside a submarine sandwich shop on the corner of 71st and
Paxton in Chicago. Suddenly there was a barrage of gun fire.
Soon after, the police arrived on the scene. They found Dion
Massey, unconscious, inside the sub shop. He was bleeding from a
bullet wound to the chest. Outside the sub shop, the police
found 2 bullet fragments, one lodged in the store's door casing.
On the southwest corner of the intersection, kitty-corner from
the sub shop, the police found 14 9mm. shell casings.
There were no eyewitnesses to the shooting, but the
investigation led police to believe the shooting was gang-
related. A number of Mickey Cobra (MC) gang members were brought
to the police station for questioning. After a month-long
investigation, three members of the MCs were indicted by the June
1994 grand jury -- Calvin "Pookie" McNeal, Michael "Pigtail"
Keene, and Antoine "Goofy" Scott. All three defendants were
charged with two counts of first degree murder.
Separate but simultaneous bench trials were held for the
three defendants on January 8, 1997. McNeal and Scott were found
guilty as charged. Each was sentenced to a term of 28 years
imprisonment. Keene was acquitted.
McNeal and Scott appeal their convictions. Both defendants
contend the trial court erred by refusing to suppress their
inculpatory post-arrest statements to police. In addition,
McNeal and Scott argue they were not proved guilty beyond a
reasonable doubt. We affirm.
SCOTT'S MOTION TO SUPPRESS
On November 29, 1995, the trial court held a hearing on
Scott's motion to suppress his post-arrest statements. At this
hearing Detective McCann testified that he and his partner,
Detective Caesar, arrested Scott at about 7:45 p.m. on June 8,
1994. Scott, who was 16 years old, was arrested at 7336 S.
Luella in Chicago, his grandparents' home. The detectives did
not have a warrant for Scott's arrest.
When the police arrived, Scott's grandparents were home.
The police invited them to accompany Scott to the police station.
Scott's grandfather declined. He said he had to go to work.
Scott's grandmother also declined to accompany Scott. Her
reasons were health-related. It was reported that she suffered
from bronchitis and epilepsy.
At the station, Detective McCann attempted to obtain a youth
officer. None was available. Detective McCann then met with
Scott briefly (about 5 minutes). At this time, Scott denied any
participation in the Massey shooting. Scott was told, however,
the police had information to the contrary. Detective McCann
denied reading to or providing Scott with any of the statements
implicating him.
After the brief interview, Scott was left alone in an
interview room to await the arrival of an assistant State's
Attorney. ASA Hal Garfinkle arrived at Area 2 at about 9 p.m.
He did not speak with Scott until a youth officer became
available. At about 10:30 p.m., Youth Officer Burke came to the
station and met with Scott. ASA Garfinkle then spoke with Scott
in the presence of Youth Officer Burke. At this time Scott gave
a detailed oral statement implicating himself in the shooting.
In his statement, Scott said he met Carney Wiggins on the
way to school on May 19, 1994. Carney told him his brother,
Michael Wiggins, had been shot the night before. Carney said a
gang meeting was planned for that evening. After school that
afternoon, Scott went to the cleaners and met Jerome Watson along
the way. While Scott was inside the cleaners he heard gunshots
outside the cleaners. When he looked out he saw members of the
Gangster Disciples, dressed in black, running in one direction.
Jerome Watson and some other MCs were running in the opposite
direction.
Later, at about 6:30 p.m., Scott was on his way to
Rosenbloom Park when he saw Jerome Watson again. Watson told
Scott the meeting was over. Watson told him they were going on a
mission to "burn" some GDs. Scott accompanied Watson to Dante
Eatmon's house.
Scott also told police he returned to Eatmons' house on May
23, 1994. Michael Keene and Sam Smith were there. Smith stole a
white car and Scott got in the car with Keene and Calvin McNeal.
As they headed for GD territory, however, the car broke down.
They all went back to Dante's house. A friend named Marcus came
to Dante's with a dark colored car. This time four-five more MCs
got into the car and drove with them to GD territory. They
parked at 71st and Merrill. Scott said he was told to stay with
the car and open the doors when the others returned from their
mission. Scott admitted he had acted as a lookout while the
others walked down an alley toward 71st and Paxton. He heard
shooting, then the MCs ran back to the car and they all left the
area.
Although Scott provided this oral statement to both the
police and the assistant State's Attorney, he declined to have
his statement memorialized in any way.
Scott testified in support of his motion to suppress. He
agreed that his grandparents had been present when he was
arrested, and that they declined to go with him to the police
station. Scott claimed, however, that he told the detectives his
mother lived down the street, but the detectives did not respond.
Scott also contended that when the police questioned him at
the station and informed him of his "right to counsel," he told
the detectives he didn't understand what this meant. The
detectives didn't explain and questioned him anyway.
Scott denied having any personal knowledge of the shooting.
He said he learned the details of the shooting from statements
the police had obtained from other persons and read to him. He
said he initially denied any involvement in the shooting, but the
detectives called him a liar. Then, Scott claimed, the
detectives told him he would spend the rest of his life in jail
unless he told them he acted as a look-out. Scott said the
detectives told him if he admitted being a look-out he could go
home. This was the only reason, Scott said, he made the
admission that he had been a look-out at the shooting.
Scott agreed that he gave ASA Garfinkle a statement
implicating himself in the shooting. He said he was afraid to
tell ASA Garfinkle the truth.
On cross-examination, Scott admitted his grandmother was his
legal guardian. He had been living with his grandparents since
April 1994. Scott also admitted that he had been arrested a
number of times prior to this arrest. He had been informed of
his rights each time in the past. He never said he didn't
understand his rights.
The trial court denied Scott's motion to suppress. The
court found that the police complied with the statutory
requirement of giving notice to the minor's guardian of the
arrest. The court also found that the legal guardians were given
sufficient opportunity to be present at Scott's questioning, but
that they chose not to attend. In addition, Scott did not give
an inculpatory statement until after he met with a youth officer.
He made the statement to ASA Garfinkle, in the presence of the
youth officer.
The court found Scott's rights as a juvenile were
sufficiently protected. The court said it gave no credence to
Scott's claims that he did not understand his rights and that he
was threatened with life imprisonment unless he made an
admission.
MCNEAL'S MOTION TO SUPPRESS
On December 4, 1995, the trial court held a hearing on
McNeal's motion to suppress his oral and written post-arrest
statements. At the hearing Detective Louis Caesar testified he
and his partner, Detective McCann, arrested McNeal at about 9
a.m. on Sunday morning, June 12, 1994. He and Detective McCann
went to 7420 S. Jeffery, to the home of McNeal's grandmother,
Mrs. Jennie Alexander. They had a warrant for McNeal's arrest on
a charge of murder. The detectives told Mrs. Alexander about the
warrant and said they were taking McNeal into custody for further
questioning.
Because McNeal was 16 years old, Detective Caesar said, they
invited Mrs. Alexander to accompany her grandson to the station.
She declined. She said she was going to church and would come to
the station when she was done.
The detectives took McNeal to Area 2 and left him in an
interview room while they went to arrest Michael Keene. When
they returned to Area 2, at about 10:45 a.m., ASA Kirby was
already at the station.
ASA Kirby asked the detectives the whereabouts of McNeal's
grandmother and suggested they telephone her since she had not
yet arrived at the station. When Detective Caesar called,
however, there was no answer at Mrs. Alexander's home.
Because they could not reach Mrs. Alexander, a youth officer
was summoned. At about 12:00 p.m., a youth officer arrived.
McNeal was not interviewed until the youth officer had an
opportunity to speak with McNeal. At about 12:30 p.m., ASA Kirby
met with McNeal in the presence of Detective Caesar and the youth
officer. McNeal gave an oral statement, admitting his
involvement in the shooting of Dion Massey. McNeal told them he
did not shoot at Massey, but acted only as a look-out.
McNeal agreed to give a written statement. ASA Kirby wrote
out McNeal's statement, based on answers McNeal gave to questions
ASA Kirby asked. When the statement was finished, McNeal
reviewed and signed it. The written statement contained both
Miranda warnings and juvenile warnings.
The written statement, though admitted into evidence, was
not made a part of the appellate record. We, however, have been
able to glean certain portions of the statement from McNeal's
cross-examination.
McNeal told police he graduated from Bryn Mawr grade school
and was a sophomore at South Shore High School. He said he
learned that Mike Wiggins, also known as Mike Sconey, had been
shot on May 18, 1994. He knew the MCs believed the shooting was
done by the GDs. On May 19, 1994, a gang meeting was held at the
park. It was decided at this meeting that McNeal, Antoine Scott,
Michael Keene, and Jacob Elzie would go on a mission to retaliate
against the GDs. McNeal told police that the four of them
dressed in black on the evening of May 22, 1994. Keene had a .38
hand gun and Elzie had a 9mm. They met at the park. Elzie stole
a dark colored car and they drove to GD territory. McNeal said
he sat in the back of the car with Scott. Elzie drove with Keene
in the front passenger side. They drove past the sub shop at
71st and Paxton, then parked down the street. Elzie and Keene
got out, walked to the corner, and fired shots at Massey, who was
standing on the opposite corner. McNeal said he and Scott stayed
with the car and opened the doors when Elzie and Keene ran back
to the car, shouting, "I got him."
On cross-examination, Detective Caesar admitted that June
12, 1994, was not his first contact with McNeal. On May 26,
1994, at about 1:45 p.m., Officer Peck, who was patrolling the
area near 73rd and Jeffery (acknowledged MC territory), saw
McNeal and asked him to come to the station for questioning.
McNeal was taken to the police station at 71st and Cottage Grove,
where he was questioned briefly. There was no youth officer
present at this time and no attempt was made to contact McNeal's
guardian.
After this first interview, Detectives McCann and Caesar
were called. They came to the station and spoke with McNeal
briefly. Again, there was no guardian or youth officer present.
The detectives drove McNeal past the scene of the shooting
before taking him to Area 2 headquarters. At Area 2, the
detectives interviewed McNeal at 7 p.m. and again at 10:20 p.m.
During the second interview, Detective Caesar said, McNeal's
grandmother was present. At about 11 p.m., McNeal was allowed to
go home. These events took place on May 26th.
The next evening Detective Caesar went to McNeal's home and
asked him to come back to the station for more questioning.
McNeal's grandmother was home, but she did not accompany Calvin
to the station. She said she would come to the station later
that evening.
At Area 2, though McNeal was not placed under arrest,
Detective Caesar informed McNeal of his rights pursuant to
Miranda. At about 9 p.m., Detective Caesar began questioning
McNeal. Subsequently, Assistant State's Attorney (ASA) Kirby was
called to come to the station and speak with McNeal. At this
time a youth officer was summoned. Youth Officer Fogarty came to
the station and met with Calvin prior to his interview with ASA
Kirby, which took place at about 12:30 a.m. At about 2 a.m., May
28, 1994, Calvin was allowed to leave the station with his
grandmother.
ASA Kirby testified at the hearing. He said he arrived at
Area 2 headquarters at about 10 a.m. on June 12, 1994. Before
speaking with McNeal he attempted to contact McNeal's
grandmother. When she could not be located, a youth officer was
summoned. After the youth officer arrived, at about 12:30 p.m.,
ASA Kirby met with McNeal, informed him of his rights, including
his juvenile rights, and took McNeal's written statement.
ASA Kirby testified that McNeal told him he could read and
write and had graduated from high school. He said McNeal was
alert, responsive, and coherent. He said McNeal read and
understood the statement. McNeal affixed his initials to each
page as they reviewed it together.
Mrs. Alexander testified at the hearing on McNeal's behalf.
She said she was McNeal's legal guardian since he was two years
old. It was stipulated that McNeal was classified in school as
EMH -- educable mentally handicapped. She admitted, however,
McNeal had no difficulty communicating.
Mrs. Alexander said she knew about the police questioning
her grandson May 26, 1994. She said a relative called her at
work at about 1:30 or 2:00 p.m. and told her McNeal was taken to
the police station. She said she remained at work until 5 p.m.,
went home, ate supper, and then "sat around" watching television
until about 8 p.m. before going to the police station. At the
station, however, she said she was not allowed to see her
grandson until about 1 a.m., just before they let her take him
home.
On the following evening an officer came to her house and
asked to speak to her grandson again. She said the officer told
her that her grandson was involved in a murder and had to go to
the station for questioning. The officer told her she could go
with him to the station, but she decided to go later on. She
didn't state when it was that she arrived at the station, but she
claimed when she did arrive she was once again kept from seeing
her grandson. She said she wasn't allowed upstairs, where her
grandson was being questioned, until 5 to 10 minutes before the
police let McNeal leave, at about 2 o'clock in the morning.
Mrs. Alexander admitted she was asked to accompany McNeal to
the police station on June 12, 1994, and she declined the offer.
She also admitted she stayed at church until 4 o'clock that
afternoon and never attempted to go to the police station after
she was finished with church. She claimed, however, the
detectives never told her they had a warrant for McNeal's arrest.
She said she thought McNeal was just being taken in for more
questioning. She said she asked the detectives if she needed a
lawyer and they told her, "No."
McNeal also testified. He said he had been taken into
custody on three occasions -- May 26th, May 27th, and June 12,
1994. On May 26, McNeal said, the police picked him up on the
street. He told his Aunt Jerry that he was going to the police
station. At the station, he talked with police officers and
then, later on, with two detectives who were called to the police
station at 71st and Cottage Grove. The detectives drove him past
the scene of the shooting and then to Area 2. At about 1 a.m.,
he was allowed to leave the station with his grandmother.
On May 27, the detectives came to his grandmother's house at
about 5 p.m. and took him to Area 2. He said he was not
questioned by the assistant State's attorney until he met with a
youth officer. Then, in the presence of the youth officer, he
was questioned by the State's attorney.
On June 12, 1994, McNeal said the detectives came to his
grandmother's house again. The detectives did not tell him he
was under arrest. McNeal also said the assistant State's
Attorney spoke with him before a youth officer arrived. Once the
youth officer arrived and spoke with McNeal, a second interview
was conducted by ASA Kirby, in the presence of the youth officer.
It was then that McNeal gave his statement to ASA Kirby.
McNeal said ASA Kirby wrote down "stuff" that was not what
he said. McNeal said he didn't read the statement and didn't
know what it said. McNeal also claimed he was told if he signed
the papers he would be allowed to go home.
On cross-examination, however, McNeal said on each occasion
he was taken to the police station he went voluntarily. He also
said he never was mistreated by the police. He said he was given
food and drink and allowed to use the washroom. McNeal also
admitted he told the police he was a look-out during the
shooting.
After all the evidence was heard and arguments given, the
court took the matter under advisement. One week later, on
December 11, 1995, the court entered its ruling. The court
determined that reasonable efforts were made to ensure that the
minor's guardian was notified and, on each occasion, the lack of
the guardian's presence was due mainly to the conduct of the
guardian.
The court ruled, in view of the totality of the
circumstances, McNeal's oral and written post-arrest statements
were "freely and voluntarily given without compulsion." The
motion to suppress was denied.
TRIAL
Separate but simultaneous bench trials were held for the
three defendants before another judge on January 8, 1997. At
trial it was established that Dion Massey was shot in the chest
as he stood on the corner of 71st and Paxton on May 23, 1994.
After the shooting police recovered 14 9mm. shell casings from
the sidewalk across the street.
The State presented the testimony of Jerome Watson. Watson
admitted to being a member of the Mickey Cobras (MCs). He said
in 1994 he had been with the gang for 5« years and held the rank
of "Supreme Serpent."
Watson testified to the following uncontroverted facts: the
Vice Lords and the MCs are affiliated gangs and both are rivals
of the Gangster Disciples (GDs); Michael Wiggins was a member of
the Vice Lords and Michael's brother, Carney, was a member of
the MCs; on May 19, 1994, Michael Wiggins was shot and killed
while he was in MC territory, near 73rd and Jeffery; the MCs
believed the GDs were responsible for Wiggins' shooting; and, on
May 23, 1994, Dion Massey was shot and killed as he stood on the
corner of 71st and Paxton, which is where the GD's territory
begins. Watson also agreed that all three defendants were
members of the MCs. He said Calvin McNeal's gang name was
"Pookie," Michael Keene's gang name was "Pigtail," and Antoine
Scott's gang name was "Goofy" or "Goof Snake."
Watson denied having any personal knowledge regarding the
shooting of Dion Massey. Though he admitted that on June 1,
1994, he gave the police a written statement and testified before
the grand jury, he denied the information contained in the
statement or his testimony was true. He denied he told police
that on May 19th, the day after Michael Wiggins was shot, he had
a confrontation with some GDs while walking home from school near
73rd and Euclid. He denied he said the GDs told him, "Tell your
brother to rest in hell." He admitted Hoogie was a "minister" of
the MCs, but denied Hoogie called a gang meeting for the evening
of May 19, 1994, to plan a retaliation mission against the GDs.
He denied he attended the meeting at Rosenbloom Park (also known
as South Shore Park). He denied he told the police "Hoogie"
asked for volunteers to retaliate for Michael's killing and that
the three defendants volunteered to perform the mission.
Watson recanted the rest of his written statement in its
entirety. However, the statement and Watson's grand jury
testimony were admitted as substantive evidence. Though the
written statement and grand jury transcript have not been
included in the appellate record, it appears, based on Watson's
cross-examination, Watson told police the retaliation mission was
originally set for May 20th, but there were too many police
officers in the area that evening and the mission was called off.
The following night Keene was unavailable. On the evening of May
22nd, however, Pookie, Pigtail, and Goofy came to Watson and
asked him to obtain guns for them so they could proceed with the
mission. Watson went to 73rd and Jeffery and obtained three
handguns: a 9mm., a 38 caliber, and a .25 caliber. The guns were
concealed in a purple velvet Crown Royal liquor bag. Watson
turned over the guns to the three gang members at the park.
Pookie, Pigtail, and Goofy were dressed in black for the mission.
The plan was for someone to steal a car and drive to GD
territory.
Watson's statement also said the next day Watson saw Calvin
(Pookie), who told him, "We got 'em." Later that same day
Pigtail returned the guns to Watson and told him, "We took care
of the nation." Pigtail and Pookie fired the shots, Watson was
told, while Goofy acted as a lookout.
Watson's testimony before the grand jury on June 1, 1994,
apparently was consistent with his written statement to the
police. At trial, however, Watson denied he was asked certain
questions or that he gave certain answers.
In addition to Jerome Watson's trial testimony and the
admission of his earlier statements and grand jury testimony as
substantive evidence, the court heard testimony from Detectives
McCann and Caesar regarding the defendants' post-arrest
statements. McNeal's written statement was admitted into
evidence.
In Scott's defense, Robert Scott, Antoine's grandfather,
testified. He said Antoine had been home on the evening of May
22, 1994. The grandfather said he went to bed at 11:00, while
Antoine was watching television. He also said Antoine could not
have left the house because the doors were locked from the inside
and Antoine didn't have a key.
Antoine Scott testified. He said he never left his
grandparents' home on the night of the shooting and had no
personal knowledge about it. He admitted he told police he acted
as a look-out, but said he only told police that because they
told him he could go home if he made the admission. He said the
only information he had about the shooting he got from memorizing
information from statements the police had shown him.
As impeachment, the State called Detective McCann, who
testified that no other statement in the possession of the police
said that nine gang members went to the crime scene. Only
Scott's statement contained this information.
McNeal also testified at trial. He claimed the detectives
who took him to GD territory on May 26, 1994, to view the scene
of the shooting threatened to leave him there if he didn't give a
statement admitting his involvement. Nonetheless, he said, he
refused to say anything. The police brought him back to the
station. He said he sat in the station for eight hours without
ever saying anything to anyone and then was let go.
McNeal said he was brought back to the station on May 27th.
Again, he said, he remained in the station for four-five hours
without ever giving any statements. Then he was let go.
McNeal admitted he gave a statement to police and a written
statement to the assistant State's attorney on June 12, 1994. He
claimed, however, he had no personal knowledge of the shooting
and only signed the statement because he was told if he did he
would be let go.
On cross-examination, McNeal said the information in the
statement was made up. Later, he claimed Detective Caesar told
him what to say. But McNeal admitted ASA Kirby asked him
questions and he gave answers, which the ASA wrote down. McNeal
also identified his signature on the statement and said he
understood his rights. He said he could read and write, but
didn't read the statement after ASA Kirby wrote it and didn't
know what it said.
Both McNeal and Scott were found guilty of murder on an
accountability theory. Each was sentenced to a term of 28 years
imprisonment.
DECISION
McNeal and Scott question the trial court's rulings denying
their motions to suppress their inculpatory post-arrest
statements. Since both McNeal and Scott were 16 years old at the
time their statements were taken, we must consider the issue of
voluntariness in the special context afforded to minors.
We understand "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. Fuller, 292 Ill. App. 3d 651, 653, 686 N.E.2d 6 (1997), quoting People v. Prude, 66 Ill. 2d 470, 476,
363 N.E.2d 371 (1977). A confession will be admissible only if
it was made freely and voluntarily and if no direct or implied
promises have been made or improper influence applied. Fuller,
292 Ill. App. 3d at 653. Even when a juvenile is concerned,
however, a court looks to the totality of the circumstances to
determine whether a confession is voluntary. In re Lamb, 61 Ill. 2d 383, 388, 336 N.E.2d 75 (1975); People v. Gardner, 282 Ill.
App. 3d 209, 218, 668 N.E.2d 125 (1996).
Factors to be considered when determining voluntariness are:
the defendant's age, education, intelligence, experience, and
physical condition; the duration of the questioning; whether he
was advised of his constitutional rights; whether he was
subjected to any threats, promises, or physical or mental
coercion; and whether the confession was induced by police
deception. People v. Oaks, 169 Ill. 2d 409, 447, 662 N.E.2d 1328
(1996); People v. Fuller, 292 Ill. App. 3d at 654.
For juveniles there are some additional considerations: the
time of day when questioning occurred and the presence or absence
of a parent or other adult interested in the minor's welfare. In
re J.E., 285 Ill. App. 3d 965, 974, 675 N.E.2d 156 (1996); People
v. Brown, 235 Ill. App. 3d 479, 490, 601 N.E.2d 1190 (1992). The
benchmark for voluntariness, however, is whether the defendant's
will was overborne at the time, not whether he would have
confessed in the absence of interrogation. People v. Brown, 169 Ill. 2d 132, 144, 661 N.E.2d 287 (1996).
The police have a statutory duty, where a minor is
concerned, to make a reasonable attempt to notify the minor's
parents or guardian at the time the minor is taken into custody.
The statutory requirements are set forth in section 5-6 of the
Juvenile Code (see 705 ILCS 405/5-6(1) and (2) (West 1994)).
There is nothing in the statute which mandates that a parent
or guardian be given an opportunity to speak with the minor
before questioning or that the parent or guardian be present at
the time the minor is questioned. Nor does the statute require
that the minor be seen by a youth officer before questioning.
Illinois courts have consistently rejected any per se rule which
would require a minor be given such opportunity. See cases cited
in DiVito dissent, People v. Montanez, 273 Ill. App. 3d 844, 857,
652 N.E.2d 1271 (1995).
Still, courts have held where an officer questioning a
juvenile learns of a parent's presence in the station, the
officer has an affirmative duty to stop questioning and allow the
parent to confer with the minor. See People v. Brown, 182 Ill.
App. 3d 1046, 538 N.E.2d 909 (1989). Failure to comply with this
judicial directive, though a significant factor in the
determination of voluntariness, does not compel a finding that
the confession was involuntary. See In re Lashun H., 284 Ill.
App. 3d 545, 553-54, 672 N.E.2d 331 (1996); People v. Bobe, 227
Ill. App. 3d 681, 702-03, 592 N.E.2d 301 (1992).
By the same token, notification of a parent or guardian or
the presence of a youth officer at the time of questioning, does
not automatically make the confession voluntary. In re Lashun
H., 284 Ill. App. 3d at 555.
Parental notification and/or consultation with a youth
officer are but two factors to be considered when evaluating the
totality of the circumstances.
Finally, a reviewing court must remember it does not reweigh
the evidence when deciding whether the trial court properly
denied a motion to suppress -- a motion to suppress will be
reversed on appeal only when it is shown that the trial court's
determination was against the manifest weight of the evidence.
People v. Marts, 266 Ill. App. 3d 531, 539, 639 N.E.2d 1360
(1994). Each case must be evaluated based on its own particular
set of circumstances. People v. Bernasco, 138 Ill. 2d 349, 562 N.E.2d 958 (1990).
Voluntariness of Scott's Oral Statement
Scott was arrested at 7:45 p.m. on June 8, 1994, at the home
of his grandparents, who are his guardians. It is undisputed
that the detectives who arrested Scott invited the grandparents
to accompany them to the station. The grandparents declined.
At the station, no youth officer was available. Detective
McCann spoke with Scott for 5-10 minutes, at which time Scott
denied involvement in the shooting. McCann said he informed
Scott that others had implicated him, but showed Scott no reports
or statements.
Scott was next interviewed at 10:30 p.m., when ASA Garfinkle
and Youth Officer Burke were present. At this time Scott gave a
detailed statement. He admitted to being a lookout during the
shooting. His statement contained details which no one else had
provided to the police. Scott refused to memorialize the
statement in any way.
Scott was 16 years old at the time the statement was made to
the police and State's Attorney. He had been attending high
school and was of at least average intelligence. He was an
admitted gang member. He was street wise. He had been arrested
a number of times before June 8th. The questioning occurred at
10:30 p.m. and he had been in custody only since 7:45 p.m., less
than three hours. Scott was advised of his constitutional
rights.
Though Scott claimed he did not understand his rights and
was induced to make the statement because of promises made by the
police, the trial court chose to reject this testimony as
unbelievable. The trial court is in a better position to assess
the credibility of a witness. It is the trial court's province
to resolve any conflicts and determine whether a statement was
coerced. People v. Bobe, 227 Ill. App. 3d 681, 592 N.E.2d 301
(1992). In this case, we cannot say the court's conclusion that
Scott was less than forthright requires reversal.
We realize Scott's guardians were not present at the time of
questioning. However, a youth officer was present. Neither of
these facts is dispositive, however, on the decision of
voluntariness. They are factors to be considered. This is not a
case where evasive police conduct frustrated a parent's attempt
to confer with his child before or during questioning. In re
L.L., --- Ill. App. 3d ---, 693 N.E.2d 908 (1998).
In viewing the totality of the circumstances we hold the
trial court's conclusion that Scott's statement was voluntary was
not against the manifest weight of the evidence.
We affirm the trial court's decision to deny the motion to
suppress Scott's post-arrest statements.
Voluntariness of McNeal's Statements
The circumstances in McNeal's case are different than those
in Scott's case. McNeal was taken into custody and questioned by
police on two occasions before his arrest on June 12, 1994. On
June 12th, however, the police had a warrant for McNeal's arrest.
McNeal was taken into custody before 9 a.m. on a Sunday morning.
His grandmother, Mrs. Alexander, was home and informed by the
officers they had a warrant for McNeal's arrest. Mrs. Alexander
was invited to come to the station, but she decided to go to
church. Church for Mrs. Alexander was an all-day affair. It
lasted until 4 p.m. She never called the station to make an
inquiry, nor did she go to the station after church services were
over.
McNeal was taken to the police station and, by his own
account, went willingly. At the station, McNeal was left alone
in an interview room while another suspect, Michael Keene, was
arrested. At 10:45 a.m. a youth officer was summoned since Mrs.
Alexander had not yet appeared at the station and could not be
reached. McNeal was not questioned by the police or ASA Kirby
until a youth officer was on the scene and had an opportunity to
speak with McNeal. After meeting with the youth officer, McNeal
made oral and written statements to the police and the assistant
State's Attorney, implicating himself in the shooting as a
lookout.
It was stipulated at the suppression hearing that McNeal was
designated EMH (educable mentally handicapped) at school and was
below average in his ability to grasp certain school subjects
such as reading. Mrs. Alexander testified at the hearing that
the detectives never told her McNeal was under arrest. She also
said, however, she asked if an attorney was necessary and the
detectives said, "No."
McNeal testified at the hearing, claiming he didn't know
what was contained in his written statement because the State's
Attorney just wrote down "stuff." He said he signed the papers,
without reading them, because the police said he could go home if
he signed them. He later admitted, however, he told the police
he acted as a lookout during the shooting.
Again the trial court ruled that the statements were
admissible under the totality of the circumstances. McNeal was
16 years old at the time he gave his statement. Though his
intelligence was below average, his demeanor and testimony
indicated to the trial court that he had sufficient communication
skills and comprehension to have made a knowing and intelligent
waiver of his rights. We agree.
McNeal was advised of his constitutional rights and he said
he understood them. When his attorney attempted to check his
understanding of the word "voluntary," McNeal was able to give a
correct definition. Nothing in the record causes us to reject
the trial court's finding that McNeal's scholastic handicap did
not prevent him from making a knowing and voluntary waiver of his
rights.
Furthermore, McNeal's demeanor was that of a street-wise
gang member who had prior experience with the law. He did not
appear to be frightened or despairing when he gave his statement.
He admitted he was given food and drink and was allowed to use
the washroom. It was his perception, according to his testimony,
that he was never mistreated or "tricked" by the police. This
scenario does not project an atmosphere in which McNeal's
statement was made as a result of his will being overborne.
We realize McNeal was taken into custody on two prior
occasions. Though statements he made during these times were not
offered into evidence, it appears McNeal gave the police
information which indicated he had some knowledge about the
shooting. To what extent these prior police contacts influenced
his later decision to make inculpatory statements cannot be
easily assessed. However, we note McNeal's acknowledged
willingness to accompany the police on each occasion.
The fact that McNeal was sometimes questioned on these
earlier occasions outside the presence of a guardian or youth
officer, though troubling, does not mandate a finding that
McNeal's subsequent statements were made involuntarily. It was
undisputed that McNeal's guardian, Mrs. Alexander, knew that
McNeal had been taken into custody on May 26, 1994, yet made no
attempt to rush to his side. She worked the rest of the day,
went home, ate, and watched television before going to the police
station. Though she denied it, the detectives said Mrs.
Alexander was allowed to sit in on a 10 p.m. interview with
McNeal.
Mrs. Alexander admitted she was aware that the police were
questioning McNeal about his involvement in a murder, a serious
offense. Yet on May 27, 1994, when the police came to her house
and took McNeal into custody again, she did not accompany him to
the station. Instead, she planned to go to the station later
that night. The time she actually arrived at the station was
never established. These circumstances do not compel a finding
that Mrs. Alexander was prevented from being with her grandson.
Furthermore, whether Mrs. Alexander was actually prevented
from seeing McNeal once she arrived at the station on May 27,
1994, is not a pivotal issue. The relevant inquiry is whether
deterring the guardian from being present during the questioning
on May 27th contributed to a coercive detention on June 12th.
People v. Fuller, 292 Ill. App. 3d 651, 654, 686 N.E.2d 6 (1997).
Based on McNeal's own testimony, it does not appear the
atmosphere was overtly coercive. The absence of McNeal's
grandmother during McNeal's questioning on May 27, 1994, does not
compel us to find the statements he made on June 12, 1994, were
involuntary. There may be an occasion where repeated police
pickups of a juvenile can create a coercive atmosphere, but that
is not what happened in this case.
We find the trial court's ruling on McNeal's motion to
suppress was not against the manifest weight of the evidence.
Sufficiency of the evidence
Our final inquiry is whether the record contains sufficient
evidence from which the trier of fact could find defendants
guilty of murder beyond a reasonable doubt.
The defendants' admissions provide significant evidence in
support of a finding that both defendants are guilty of murder on
an accountability theory.
In addition to the defendants' own admissions, however, the
State also produced the written statement and grand jury
testimony of a fellow gang member, Jerome Watson. Although
Watson recanted his earlier statements and grand jury testimony,
the trial court admitted them as substantive evidence under
section 115-10.1 of the Criminal Code.
The trial judge, acting as trier of fact, was entitled to
believe Watson's earlier statements and grand jury testimony
implicating both McNeal and Scott, rather than believe his trial
testimony. See People v. Gaston, 259 Ill. App. 3d 869, 631 N.E.2d 311 (1994); People v. Johnson, 255 Ill. App. 3d 547, 626 N.E.2d 1073 (1993). Furthermore, despite some discrepancies,
Watson's statement and grand jury testimony were substantially
corroborated by McNeal's written statement and Scott's oral
statements.
All parties agreed to the basic premise -- the shooting of
Dion Massey on GD territory was done in retaliation for the
shooting of Michael Wiggins and a gang meeting was held on May
19th, at which time McNeal and Scott joined in the objective --
to go on a mission to "burn" some GDs. Each statement verified
that McNeal and Scott were members of the retaliation mission on
May 23, 1994, which resulted in the death of Dion Massey.
We hold the trial judge's finding that both McNeal and Scott
were guilty of murder beyond a reasonable doubt was supported by
the evidence.
CONCLUSION
We affirm Antoine Scott's and Calvin McNeal's convictions
and sentences for the murder of Dion Massey.
AFFIRMED.
McNAMARA and SOUTH, JJ., concur.