People v. Cannon
Annotate this Case
Fourth Division
November 20, 1997
No. 1-94-4409
THE PEOPLE OF THE STATE OF ILLINOIS, ) APPEAL FROM THE
) CIRCUIT COURT OF
Plaintiff-Appellee, ) COOK COUNTY.
)
v. )
)
DARRYL CANNON, ) HONORABLE
) JOHN E. MORRISSEY,
Defendant-Appellant. ) JUDGE PRESIDING.
PRESIDING JUSTICE WOLFSON delivered the opinion of the
court:
In this murder case Darryl Cannon is asking for the
opportunity to prove his confession was the product of torture by
police officers from Area 2 Headquarters in Chicago.
Cannon was tried in 1984 for his involvement in the October
26, 1983, murder of Darren Ross. He had moved to suppress his
confession, but the motion was denied. On appeal from that
conviction the denial of Cannon's motion to suppress was
affirmed, but his case was remanded to the trial court for a
hearing on the prosecutor's use of peremptory challenges to
exclude black jurors. See People v. Cannon, 150 Ill. App. 3d
1009, 502 N.E.2d 345 (1986).
After holding a Batson hearing, the trial court ordered a
new trial. Again, Cannon moved to supress his confession. Among
other things, he said he could prove other suspects had been
tortured by Area 2 police officers to obtain confessions. Two
trial court judges refused to revisit the question of whether
Cannon's confession was voluntarily made.
On retrial in 1994, Cannon again was found guilty of murder.
He was sentenced to natural life in prison. He raises several
issues in this appeal, but we decide only one at this time: he
should have been given a second opportunity to suppress his
confession. For that reason, we vacate the defendant's
conviction and sentence, and we remand this cause to the trial
court for a new hearing on the voluntariness of Cannon's
confession.
BACKGROUND
For an understanding of how we have reached this point, we
step back 14 years, to October 26, 1983. At about 1 p.m. Darren
Ross and Kenneth Steele, two drug dealers, encountered Tyrone and
A.D. McChristian at the corner of 79th Street and Essex Avenue in
Chicago. According to Steele, Tyrone approached Ross and
whispered something in his ear. Then A.D. drove off in his blue
and white 1975 Buick. Ross walked away, leaving Steele behind.
Later that day, at about 3:45 p.m., Ross's body was found
near the Altgeld Gardens housing project. Ross had been shot in
the head and his body dumped in an isolated grassy area behind
the housing project.
In the course of the investigation of Ross' murder, the
police spoke with Steele, who told the police about the encounter
with the McChristians. Later, the police found a 1975 Buick,
which was registered to an alias known to be used by A.D.
McChristian. The car had bloodstains that matched Ross' blood
type.
A few days later the police located Tyrone McChristian, who
implicated Cannon. The police obtained a warrant for Cannon's
arrest. Cannon was arrested at his home at about 7 a.m. on
November 2, 1983. After his arrest, Cannon made statements
admitting that he had been driving McChristian's car when A.D.
McChristian shot Ross.
In a pretrial motion before his first trial, Cannon moved to
suppress his post-arrest statements and admissions to police,
claiming that his statements had been the product of police
torture. Cannon claimed that one of the arresting police
officers placed a shotgun in his mouth while asking him
questions. When Cannon refused to answer, the officer pulled the
trigger. Though the gun was unloaded, the officer showed Cannon
that he had shotgun shells in his hand and repeatedly made
motions as if he were loading the gun. Cannon also claimed one
of the officers struck him in the knee with a flashlight and
another officer applied an electric cattle prod to his exposed
genitalia. See Cannon, 150 Ill. App. 3d at 1014.
A suppression hearing was held before the first trial, which
was presided over by Judge Thomas Maloney. The motion to
suppress was denied based on the trial judge's finding that the
State's evidence (the police officers' denials) outweighed
Cannon's uncorroborated claims of torture. It was noted that
Cannon had never complained to anyone at the police station about
the torture and there was no physical evidence of injury. Judge
Maloney also noted that Cannon was not credible because Cannon
testified that the cattle prod had been in the police car's glove
compartment and the judge did not believe that cattle prods were
small enough to fit into the glove compartment of a car.
Cannon went to trial on April 6, 1984. He was found guilty
of murder. In an appeal from that judgment, the trial court's
decision to deny the motion to suppress was upheld. The case was
remanded, however, for a Batson hearing. Later, based on the
trial court's finding that a Batson violation had occurred, a new
trial was ordered.
In a pretrial motion before the second trial, Cannon asked
that his motion to suppress be reconsidered in light of "new
evidence" to support his claim that his admissions had been
coerced. This "new evidence" included: (1) a police log
indicating that Cannon's arresting officers signed out a shotgun
on the day of his arrest, proving that these police officers
perjured themselves at the suppression hearing when they denied
they had a shotgun in their possession at the time of Cannon's
arrest; (2) testimony by Sgt. Byrne and Detective Dignan at a
1987 deposition in a related civil action; (3) photos taken by
the Office of Professional Standards (OPS) of a site where Cannon
claimed he had been tortured; (4) testimony of approximately 16
arrestees who filed charges with OPS claiming they had been
tortured by some of the same police officers at Area 2; and (5)
evidence that cattle prods small enough to fit in the glove
compartment of a car existed in 1983. None of this evidence, he
said, was available at his first trial.
The request for a new suppression hearing was heard first by
Judge Mannion. After Judge Mannion denied the request, he
granted the defense motion for his recusal. He had been a
detective at Area 2. The case was transferred to Judge Morrissey
and a new suppression motion was filed. Judge Morrissey heard
argument on the motion, but refused to hold a new suppression
hearing to receive the evidence being offered. He ruled there
was nothing "new" being offered.
Judge Morrisey also granted the State's pretrial motion in
limine to bar any reference to or allegations of mistreatment of
prisoners by detectives assigned to Area 2. The judge ruled that
evidence was inadmissible because it was an attempt by Cannon to
show the detectives' character and propensity to commit
wrongdoing by proof of other crimes or bad acts.
The case proceeded to trial on October 24, 1994. Cannon
testified he had been driving A.D.'s car when A.D. shot Ross. He
denied, however, that he provided the gun to A.D. and denied
knowing that A.D. intended to shoot Ross. Cannon admitted that
he gave a written statement to Officer McWeeny and an assistant
State's Attorney (ASA) after he was arrested. In this statement,
Cannon said he gave A.D. the gun A.D. used to shoot Ross. Cannon
also said in the statement he had been aware that A.D. was going
to shoot Ross. Cannon testified he told the ASA these things
because Officers Dignan, Byrne, and Grunhard tortured him and
threatened more torture if he did not implicate himself.
Cannon testified that the three officers took him to an
isolated area on the south side of Chicago. At this remote
location, Dignan terrorized Cannon by pretending to load a
shotgun, placing the gun in Cannon's mouth, and pulling the
trigger. This happened several times. Next, Byrne stood on the
car bumper and tried to lift Cannon by the handcuffs while
Cannon's hands were cuffed behind his back. Finally, Byrne used
a cattle prod on Cannon's exposed genitalia and, later, touched
the cattle prod to Cannon's mouth.
Cannon was not allowed to present testimony of 28 other
arrestees who claimed to have been similarly tortured at Area 2,
16 of them by some of the same officers involved in this case.
After the defense rested its case at trial, Cannon's counsel made
an offer of proof, stating that the defense, if allowed, would
have presented evidence of systematic torture at Area 2,
including: (1) testimony of Alphonso Pinex, who would have said
that he had been beaten by McWeeny and Dignan on February 9,
1982; (2) testimony of Lee Holmes that he was "bagged"
(suffocated by having a plastic bag placed over his head) and
beaten by Byrne and Dignan on September 10, 1982; (3) the court
reported testimony of Leonard Hinton that he was beaten and
shocked in the testicles by these officers 23 days after Cannon's
arrest; (4) the testimony of Alonzo Smith that he was "bagged"
and beaten by Byrne and Dignan on January 21, 1983; (5) the
testimony of Ronny Bullock that he was "harassed" by Byrne on
September 2, 1983; (6) the testimony of Reginald Mahaffey that he
was "bagged," beaten with a flashlight, and kicked by Byrne and
Grunhard; (7) the testimony of David Bates that he was "bagged"
and beaten by Byrne, Dignan, and Grunhard on October 28, 1983;
(8) the testimony of Gregory Banks that he was "bagged" and
beaten and had a gun held in his mouth by Byrne, Dignan, and
Grunhard on October 29, 1983; (9) the testimony of Lovert Jones
that he was "bagged," beaten and kicked by Byrne on January 28,
1984; (10) the testimony of Stanley Howard that he was "bagged"
and beaten by Byrne on November 3, 1984; and (11) the testimony
of Jesse Winston that he was "the victim of a hanging" by Byrne,
Grunhard, and others.
After the jury was instructed, Cannon again was found guilty
of murder on an accountability theory. He was sentenced to
natural life in prison.
Now on appeal from that judgment, Cannon contends that when
he was retried he should have been granted a new suppression
hearing. Cannon also claims the court prevented him from
presenting his defense at trial when the judge ruled inadmissible
evidence that others had been tortured by the same police
officers involved in his arrest. Defendant contends, too, that
the results of investigations of Area 2 police officers by the
Chicago police department OPS should have been available to him
in discovery.
As additional trial errors, Cannon contends: (1) the trial
court should not have allowed the State to impeach him with a
1971 conviction for murder, (2) he was denied due process because
the court excluded evidence that A.D. McChristian made an
admission to Jeff Fort that Cannon had been unaware that A.D.
McChristian was going to shoot Ross, (3) cumulative errors denied
Cannon a fair trial, (4) the trial court denied Cannon the
opportunity to establish a prima facie case of discrimination in
jury selection, and (5) it was error to convict Cannon on two
counts of murder when only one murder took place.
DECISION
No citation of authority is required for the proposition
that in a civilized society torture by police officers is an
unacceptable means of obtaining confessions from suspects. The
use of a defendant's coerced confession as substantive evidence
of his guilt never is harmless error. People v. Wilson, 116 Ill. 2d 29, 41, 506 N.E.2d 571 (1987).
When a defendant challenges the admissibility of his
confession, the State has the burden of establishing by a
preponderance of the evidence the confession was voluntarily
made. People v. Caballero, 102 Ill. 2d 23, 33, 464 N.E.2d 223
(1984). It is the trial court's duty to resolve conflicting
evidence and determine the credibility of the witnesses. People
v. Jones, 184 Ill. App. 3d 412, 423, 541 N.E.2d 132 (1989). The
trial court's factual determinations will not be disturbed on
appeal unless they were against the manifest weight of the
evidence. People v. Bernasco, 138 Ill. 2d 349, 351, 562 N.E.2d 958 (1990).
Here, in 1984, then-Judge Maloney rejected Cannon's account
of events leading to his confession and accepted the testimony
given by police officers. Ordinarily, that would be the end of
the matter, even though a new trial later was granted on another
issue. Principles of collateral estoppel would bar relitigation
of a pretrial ruling on a motion to suppress. People v. Enis,
163 Ill. 2d 367, 386, 645 N.E.2d 856 (1994). This, however, is
no ordinary case.
What is different about it? First, it involves a ruling by
Thomas Maloney, a judge convicted of accepting bribes in murder
cases. See Bracy v. Gramley, -- U.S.--, 138 L. Ed. 2d 97, 117 S. Ct. 1793 (1997). Second, the defense contends it stands ready to
prove that the officers who obtained Cannon's confession
regularly used torture as a technique for persuading suspects to
confess. Third, the defense says it has important evidence that
was not available at the time of the 1984 hearing.
These contentions bring us to the exceptions that accompany
the general rule that bars relitigation of a decided motion.
There are two separate established exceptions: new evidence that
would have been pertinent to the trial court's rulings and
"special circumstances" that would warrant relitigation of the
motion to suppress. People v. Enis, 163 Ill. 2d at 387; People
v. Holland, 56 Ill. 2d 318, 321-22, 307 N.E.2d 380 (1974).
The defendant says he can present evidence that the police
officers who questioned him systematically tortured other
suspects to obtain confessions at or near the time he was
questioned. If he can deliver on that offer, the trial court
should consider the evidence. It fits the definition of
relevance: evidence that makes the existence of any fact of
consequence more or less probable. People v. Lewis, 165 Ill. 2d 305, 329, 651 N.E.2d 72 (1995).
As the trial judge pointed out, evidence of other bad acts
is not admissible to prove a propensity to commit those acts.
But they are admissible for any other relevant purpose.
People v. Bartall, 98 Ill. 2d 294, 312-14, 456 N.E.2d 59 (1983).
Here, evidence of other acts of brutality to obtain
confessions could serve two purposes: First, it might prove
intent, plan, motive, and a course of conduct of the
officers--all relevant to Cannon's claim he was tortured. See
Wilson v. City of Chicago, 6 F.3d 1233, 1238 (7th Cir. 1993).
Second, evidence of other similar acts could be used to impeach
the credibility of the Area 2 police officers who will testify at
the hearing.
To say, as the State does, there is a qualitative
distinction between shocking one suspect's genitals with a cattle
prod and beating another with a flashlight, or inserting a
shotgun in a suspect's mouth as opposed to a handgun, is to
trivialize established principles for decent law enforcement.
Under that view, accepted standards descend to banality. Minor
differences in technique do not alter the nature of the
torturer's work.
We believe the record in this case brings Cannon's renewed
motion to suppress within the Enis and Holland exceptions to the
collateral estoppel bar.
Reports prepared by the Office of Professional Standards of
the Chicago Police Department, surveying the alleged systematic
abuse of suspects at Area 2 headquarters, were not available to
Cannon's lawyer in 1984. See People v. Bates, 267 Ill. App. 3d
503, 505-06, 642 N.E.2d 774 (1994).
Nothing in the record demonstrates that Cannon's lawyer knew
or should have known of the claims of brutality made by other
suspects questioned at Area 2. In addition, newly discovered or
not, the evidence of 28 other Area 2 arrestees, l6 of them
questioned by some of the officers who questioned Cannon, amount
to "special circumstances" that justify a new hearing of the
motion to suppress.
There is precedent for what we do. In Bates, the trial
court, charged with considering whether a confession was tainted
by police conduct, erred when it refused to consider the OPS
reports on Area 2 abuse of suspects. The Court held the reports
"went to the issue of the purpose and flagrancy of police
misconduct***" People v. Bates, 267 Ill. App. 3d at 505.
In People v. Banks, 192 Ill. App. 3d 986, 549 N.E.2d 766
(1989), we held the trial court erred when it excluded evidence
at trial that the arresting officers had brutalized another
suspect 13 months before Banks was arrested. We said:
"Thus, such evidence tends to show the conduct
that these two police officers employ in interrogating
suspects who are in custody, and such evidence is
therefore probative as to the conduct they employed in
the present case to obtain defendant's confession."
People v. Banks, 192 Ill. App. 3d at 994.
We cannot avoid observing that the two officers referred to
in the Banks case were two of the officers who arrested and
questioned Darryl Cannon on November 2, 1983. Banks was arrested
on October 28, 1983.
We recognize there are reported decisions that support a
trial judge's refusal to consider a defendant's claim that other
suspects were similarly mistreated by officers seeking
confessions. In those cases, however, the defendant's
allegations were general in nature, often remote in time. No
other decison presents so compelling a record as we find in this
case.
In People v. Orange, 168 Ill. 2d 138, 150, 659 N.E.2d 935
(1995), for example, the defendant's claim of systematic torture
at Area 2 from 1982 to 1984 was rejected because he offered
"generalized allegations of coercive activity in Area 2, without
other evidence***"
The testimony of three persons allegedly abused at Area 2
was offered at trial in People v. Hobley, 159 Ill. 2d 272, 637 N.E.2d 992 (1994). One of the three made no claim of physical
abuse. Another claimed physical abuse that took place three
years before Hobley's arrest. The third made claims that were
not similar to those made by Hobley. The Court, distinguishing,
but not disapproving of People v. Banks, concluded the trial
court's exclusion of the evidence was not an abuse of discretion.
In People v. Murray, 254 Ill. App. 3d 538, 553, 626 N.E.2d 1140 (1993), the defendant's allegations of abuse of other
suspects were properly excluded because they were "general in
nature***"
Finally, in People v. Maxwell, 173 Ill. 2d 102, 670 N.E.2d 679 (1996), the defendant in a post-conviction proceeding claimed
his constitutional rights were violated at the pre-trial motion
stage because studies and reports establishing physical abuse
and coercion of confessions at Area 2 were not available to him
at the time. The Court held the defendant failed to make a
substantial showing his constitutional rights were violated.
In the case before us, our decision is grounded in basic
evidence law: the trial judge should consider relevant evidence
when deciding whether a confession was voluntarily made.
We understand, as the State has emphasized, that Cannon has
not demonstrated he was injured while in police custody. That,
of course, is a fact the trial court should consider at the new
hearing. See People v. Wilson, 116 Ill. 2d 29, 506 N.E.2d 571
(1987). Likewise, the defendant's failure to immediately report
the alleged beating, while not necessarily dispositive of his
claim he was brutalized, should be considered by the trial judge.
See People v. Case, 218 Ill. App. 3d 146, 156, 577 N.E.2d 1291
(1991).
While it will be the trial court's initial task to determine
what evidence will be heard, we believe the question of whether
the arresting officers possessed shotguns at the time Cannon
claimed they did should be revisited. Since the first hearing in
1984 a Chicago police department equipment log has been made
available to the defense. The log reflects the officers who
arrested the defendant checked out three different shotguns on
the day of the arrest. Each was approved by Sgt. Byrne, who
supervised the arrest and interrogation of Darryl Cannon. Two of
the shotguns were not returned until noon that day, five hours
after Cannon was arrested. An evidentiary hearing should clarify
the conflicting testimony about the shotgun Cannon claims was
placed in his mouth.
At the new hearing the trial court will consider evidence
relevant to the question of suppression, bearing in mind the
conclusions we have reached in this opinion. We make no comment
on the weight or impact of the evidence, nor do we suggest what
the outcome of the hearing should be.
Because we have found another hearing on Cannon's motion to
suppress his confession is required, we need not consider whether
the participation of then-Judge Maloney is sufficient reason for
a new hearing.
CONCLUSION
We remand this cause to the trial court for a new hearing on
the defendant's motion to suppress his confession. To that end,
we also vacate the defendant's conviction and sentence. If,
after a hearing, the trial court decides to suppress the
defendant's confession, it should then proceed to trial. If the
trial court denies the motion to suppress, it should reinstate
the conviction and sentence. We then will proceed to consider
the other issues raised by the defendant in this appeal.
Conviction and sentence vacated and remanded pursuant to
directions of this court.
VACATED AND REMANDED.
CERDA and BURKE, JJ., concur.
November 20, 1997
No. 1-94-4409
THE PEOPLE OF THE STATE OF ILLINOIS, ) APPEAL FROM THE
) CIRCUIT COURT OF
Plaintiff-Appellee, ) COOK COUNTY.
)
v. )
)
DARRYL CANNON, ) HONORABLE
) JOHN E. MORRISSEY,
Defendant-Appellant. ) JUDGE PRESIDING.
PRESIDING JUSTICE WOLFSON delivered the opinion of the
court:
In this murder case Darryl Cannon is asking for the
opportunity to prove his confession was the product of torture by
police officers from Area 2 Headquarters in Chicago.
Cannon was tried in 1984 for his involvement in the October
26, 1983, murder of Darren Ross. He had moved to suppress his
confession, but the motion was denied. On appeal from that
conviction the denial of Cannon's motion to suppress was
affirmed, but his case was remanded to the trial court for a
hearing on the prosecutor's use of peremptory challenges to
exclude black jurors. See People v. Cannon, 150 Ill. App. 3d
1009, 502 N.E.2d 345 (1986).
After holding a Batson hearing, the trial court ordered a
new trial. Again, Cannon moved to supress his confession. Among
other things, he said he could prove other suspects had been
tortured by Area 2 police officers to obtain confessions. Two
trial court judges refused to revisit the question of whether
Cannon's confession was voluntarily made.
On retrial in 1994, Cannon again was found guilty of murder.
He was sentenced to natural life in prison. He raises several
issues in this appeal, but we decide only one at this time: he
should have been given a second opportunity to suppress his
confession. For that reason, we vacate the defendant's
conviction and sentence, and we remand this cause to the trial
court for a new hearing on the voluntariness of Cannon's
confession.
BACKGROUND
For an understanding of how we have reached this point, we
step back 14 years, to October 26, 1983. At about 1 p.m. Darren
Ross and Kenneth Steele, two drug dealers, encountered Tyrone and
A.D. McChristian at the corner of 79th Street and Essex Avenue in
Chicago. According to Steele, Tyrone approached Ross and
whispered something in his ear. Then A.D. drove off in his blue
and white 1975 Buick. Ross walked away, leaving Steele behind.
Later that day, at about 3:45 p.m., Ross's body was found
near the Altgeld Gardens housing project. Ross had been shot in
the head and his body dumped in an isolated grassy area behind
the housing project.
In the course of the investigation of Ross' murder, the
police spoke with Steele, who told the police about the encounter
with the McChristians. Later, the police found a 1975 Buick,
which was registered to an alias known to be used by A.D.
McChristian. The car had bloodstains that matched Ross' blood
type.
A few days later the police located Tyrone McChristian, who
implicated Cannon. The police obtained a warrant for Cannon's
arrest. Cannon was arrested at his home at about 7 a.m. on
November 2, 1983. After his arrest, Cannon made statements
admitting that he had been driving McChristian's car when A.D.
McChristian shot Ross.
In a pretrial motion before his first trial, Cannon moved to
suppress his post-arrest statements and admissions to police,
claiming that his statements had been the product of police
torture. Cannon claimed that one of the arresting police
officers placed a shotgun in his mouth while asking him
questions. When Cannon refused to answer, the officer pulled the
trigger. Though the gun was unloaded, the officer showed Cannon
that he had shotgun shells in his hand and repeatedly made
motions as if he were loading the gun. Cannon also claimed one
of the officers struck him in the knee with a flashlight and
another officer applied an electric cattle prod to his exposed
genitalia. See Cannon, 150 Ill. App. 3d at 1014.
A suppression hearing was held before the first trial, which
was presided over by Judge Thomas Maloney. The motion to
suppress was denied based on the trial judge's finding that the
State's evidence (the police officers' denials) outweighed
Cannon's uncorroborated claims of torture. It was noted that
Cannon had never complained to anyone at the police station about
the torture and there was no physical evidence of injury. Judge
Maloney also noted that Cannon was not credible because Cannon
testified that the cattle prod had been in the police car's glove
compartment and the judge did not believe that cattle prods were
small enough to fit into the glove compartment of a car.
Cannon went to trial on April 6, 1984. He was found guilty
of murder. In an appeal from that judgment, the trial court's
decision to deny the motion to suppress was upheld. The case was
remanded, however, for a Batson hearing. Later, based on the
trial court's finding that a Batson violation had occurred, a new
trial was ordered.
In a pretrial motion before the second trial, Cannon asked
that his motion to suppress be reconsidered in light of "new
evidence" to support his claim that his admissions had been
coerced. This "new evidence" included: (1) a police log
indicating that Cannon's arresting officers signed out a shotgun
on the day of his arrest, proving that these police officers
perjured themselves at the suppression hearing when they denied
they had a shotgun in their possession at the time of Cannon's
arrest; (2) testimony by Sgt. Byrne and Detective Dignan at a
1987 deposition in a related civil action; (3) photos taken by
the Office of Professional Standards (OPS) of a site where Cannon
claimed he had been tortured; (4) testimony of approximately 16
arrestees who filed charges with OPS claiming they had been
tortured by some of the same police officers at Area 2; and (5)
evidence that cattle prods small enough to fit in the glove
compartment of a car existed in 1983. None of this evidence, he
said, was available at his first trial.
The request for a new suppression hearing was heard first by
Judge Mannion. After Judge Mannion denied the request, he
granted the defense motion for his recusal. He had been a
detective at Area 2. The case was transferred to Judge Morrissey
and a new suppression motion was filed. Judge Morrissey heard
argument on the motion, but refused to hold a new suppression
hearing to receive the evidence being offered. He ruled there
was nothing "new" being offered.
Judge Morrisey also granted the State's pretrial motion in
limine to bar any reference to or allegations of mistreatment of
prisoners by detectives assigned to Area 2. The judge ruled that
evidence was inadmissible because it was an attempt by Cannon to
show the detectives' character and propensity to commit
wrongdoing by proof of other crimes or bad acts.
The case proceeded to trial on October 24, 1994. Cannon
testified he had been driving A.D.'s car when A.D. shot Ross. He
denied, however, that he provided the gun to A.D. and denied
knowing that A.D. intended to shoot Ross. Cannon admitted that
he gave a written statement to Officer McWeeny and an assistant
State's Attorney (ASA) after he was arrested. In this statement,
Cannon said he gave A.D. the gun A.D. used to shoot Ross. Cannon
also said in the statement he had been aware that A.D. was going
to shoot Ross. Cannon testified he told the ASA these things
because Officers Dignan, Byrne, and Grunhard tortured him and
threatened more torture if he did not implicate himself.
Cannon testified that the three officers took him to an
isolated area on the south side of Chicago. At this remote
location, Dignan terrorized Cannon by pretending to load a
shotgun, placing the gun in Cannon's mouth, and pulling the
trigger. This happened several times. Next, Byrne stood on the
car bumper and tried to lift Cannon by the handcuffs while
Cannon's hands were cuffed behind his back. Finally, Byrne used
a cattle prod on Cannon's exposed genitalia and, later, touched
the cattle prod to Cannon's mouth.
Cannon was not allowed to present testimony of 28 other
arrestees who claimed to have been similarly tortured at Area 2,
16 of them by some of the same officers involved in this case.
After the defense rested its case at trial, Cannon's counsel made
an offer of proof, stating that the defense, if allowed, would
have presented evidence of systematic torture at Area 2,
including: (1) testimony of Alphonso Pinex, who would have said
that he had been beaten by McWeeny and Dignan on February 9,
1982; (2) testimony of Lee Holmes that he was "bagged"
(suffocated by having a plastic bag placed over his head) and
beaten by Byrne and Dignan on September 10, 1982; (3) the court
reported testimony of Leonard Hinton that he was beaten and
shocked in the testicles by these officers 23 days after Cannon's
arrest; (4) the testimony of Alonzo Smith that he was "bagged"
and beaten by Byrne and Dignan on January 21, 1983; (5) the
testimony of Ronny Bullock that he was "harassed" by Byrne on
September 2, 1983; (6) the testimony of Reginald Mahaffey that he
was "bagged," beaten with a flashlight, and kicked by Byrne and
Grunhard; (7) the testimony of David Bates that he was "bagged"
and beaten by Byrne, Dignan, and Grunhard on October 28, 1983;
(8) the testimony of Gregory Banks that he was "bagged" and
beaten and had a gun held in his mouth by Byrne, Dignan, and
Grunhard on October 29, 1983; (9) the testimony of Lovert Jones
that he was "bagged," beaten and kicked by Byrne on January 28,
1984; (10) the testimony of Stanley Howard that he was "bagged"
and beaten by Byrne on November 3, 1984; and (11) the testimony
of Jesse Winston that he was "the victim of a hanging" by Byrne,
Grunhard, and others.
After the jury was instructed, Cannon again was found guilty
of murder on an accountability theory. He was sentenced to
natural life in prison.
Now on appeal from that judgment, Cannon contends that when
he was retried he should have been granted a new suppression
hearing. Cannon also claims the court prevented him from
presenting his defense at trial when the judge ruled inadmissible
evidence that others had been tortured by the same police
officers involved in his arrest. Defendant contends, too, that
the results of investigations of Area 2 police officers by the
Chicago police department OPS should have been available to him
in discovery.
As additional trial errors, Cannon contends: (1) the trial
court should not have allowed the State to impeach him with a
1971 conviction for murder, (2) he was denied due process because
the court excluded evidence that A.D. McChristian made an
admission to Jeff Fort that Cannon had been unaware that A.D.
McChristian was going to shoot Ross, (3) cumulative errors denied
Cannon a fair trial, (4) the trial court denied Cannon the
opportunity to establish a prima facie case of discrimination in
jury selection, and (5) it was error to convict Cannon on two
counts of murder when only one murder took place.
DECISION
No citation of authority is required for the proposition
that in a civilized society torture by police officers is an
unacceptable means of obtaining confessions from suspects. The
use of a defendant's coerced confession as substantive evidence
of his guilt never is harmless error. People v. Wilson, 116 Ill. 2d 29, 41, 506 N.E.2d 571 (1987).
When a defendant challenges the admissibility of his
confession, the State has the burden of establishing by a
preponderance of the evidence the confession was voluntarily
made. People v. Caballero, 102 Ill. 2d 23, 33, 464 N.E.2d 223
(1984). It is the trial court's duty to resolve conflicting
evidence and determine the credibility of the witnesses. People
v. Jones, 184 Ill. App. 3d 412, 423, 541 N.E.2d 132 (1989). The
trial court's factual determinations will not be disturbed on
appeal unless they were against the manifest weight of the
evidence. People v. Bernasco, 138 Ill. 2d 349, 351, 562 N.E.2d 958 (1990).
Here, in 1984, then-Judge Maloney rejected Cannon's account
of events leading to his confession and accepted the testimony
given by police officers. Ordinarily, that would be the end of
the matter, even though a new trial later was granted on another
issue. Principles of collateral estoppel would bar relitigation
of a pretrial ruling on a motion to suppress. People v. Enis,
163 Ill. 2d 367, 386, 645 N.E.2d 856 (1994). This, however, is
no ordinary case.
What is different about it? First, it involves a ruling by
Thomas Maloney, a judge convicted of accepting bribes in murder
cases. See Bracy v. Gramley, -- U.S.--, 138 L. Ed. 2d 97, 117 S. Ct. 1793 (1997). Second, the defense contends it stands ready to
prove that the officers who obtained Cannon's confession
regularly used torture as a technique for persuading suspects to
confess. Third, the defense says it has important evidence that
was not available at the time of the 1984 hearing.
These contentions bring us to the exceptions that accompany
the general rule that bars relitigation of a decided motion.
There are two separate established exceptions: new evidence that
would have been pertinent to the trial court's rulings and
"special circumstances" that would warrant relitigation of the
motion to suppress. People v. Enis, 163 Ill. 2d at 387; People
v. Holland, 56 Ill. 2d 318, 321-22, 307 N.E.2d 380 (1974).
The defendant says he can present evidence that the police
officers who questioned him systematically tortured other
suspects to obtain confessions at or near the time he was
questioned. If he can deliver on that offer, the trial court
should consider the evidence. It fits the definition of
relevance: evidence that makes the existence of any fact of
consequence more or less probable. People v. Lewis, 165 Ill. 2d 305, 329, 651 N.E.2d 72 (1995).
As the trial judge pointed out, evidence of other bad acts
is not admissible to prove a propensity to commit those acts.
But they are admissible for any other relevant purpose.
People v. Bartall, 98 Ill. 2d 294, 312-14, 456 N.E.2d 59 (1983).
Here, evidence of other acts of brutality to obtain
confessions could serve two purposes: First, it might prove
intent, plan, motive, and a course of conduct of the
officers--all relevant to Cannon's claim he was tortured. See
Wilson v. City of Chicago, 6 F.3d 1233, 1238 (7th Cir. 1993).
Second, evidence of other similar acts could be used to impeach
the credibility of the Area 2 police officers who will testify at
the hearing.
To say, as the State does, there is a qualitative
distinction between shocking one suspect's genitals with a cattle
prod and beating another with a flashlight, or inserting a
shotgun in a suspect's mouth as opposed to a handgun, is to
trivialize established principles for decent law enforcement.
Under that view, accepted standards descend to banality. Minor
differences in technique do not alter the nature of the
torturer's work.
We believe the record in this case brings Cannon's renewed
motion to suppress within the Enis and Holland exceptions to the
collateral estoppel bar.
Reports prepared by the Office of Professional Standards of
the Chicago Police Department, surveying the alleged systematic
abuse of suspects at Area 2 headquarters, were not available to
Cannon's lawyer in 1984. See People v. Bates, 267 Ill. App. 3d
503, 505-06, 642 N.E.2d 774 (1994).
Nothing in the record demonstrates that Cannon's lawyer knew
or should have known of the claims of brutality made by other
suspects questioned at Area 2. In addition, newly discovered or
not, the evidence of 28 other Area 2 arrestees, l6 of them
questioned by some of the officers who questioned Cannon, amount
to "special circumstances" that justify a new hearing of the
motion to suppress.
There is precedent for what we do. In Bates, the trial
court, charged with considering whether a confession was tainted
by police conduct, erred when it refused to consider the OPS
reports on Area 2 abuse of suspects. The Court held the reports
"went to the issue of the purpose and flagrancy of police
misconduct***" People v. Bates, 267 Ill. App. 3d at 505.
In People v. Banks, 192 Ill. App. 3d 986, 549 N.E.2d 766
(1989), we held the trial court erred when it excluded evidence
at trial that the arresting officers had brutalized another
suspect 13 months before Banks was arrested. We said:
"Thus, such evidence tends to show the conduct
that these two police officers employ in interrogating
suspects who are in custody, and such evidence is
therefore probative as to the conduct they employed in
the present case to obtain defendant's confession."
People v. Banks, 192 Ill. App. 3d at 994.
We cannot avoid observing that the two officers referred to
in the Banks case were two of the officers who arrested and
questioned Darryl Cannon on November 2, 1983. Banks was arrested
on October 28, 1983.
We recognize there are reported decisions that support a
trial judge's refusal to consider a defendant's claim that other
suspects were similarly mistreated by officers seeking
confessions. In those cases, however, the defendant's
allegations were general in nature, often remote in time. No
other decison presents so compelling a record as we find in this
case.
In People v. Orange, 168 Ill. 2d 138, 150, 659 N.E.2d 935
(1995), for example, the defendant's claim of systematic torture
at Area 2 from 1982 to 1984 was rejected because he offered
"generalized allegations of coercive activity in Area 2, without
other evidence***"
The testimony of three persons allegedly abused at Area 2
was offered at trial in People v. Hobley, 159 Ill. 2d 272, 637 N.E.2d 992 (1994). One of the three made no claim of physical
abuse. Another claimed physical abuse that took place three
years before Hobley's arrest. The third made claims that were
not similar to those made by Hobley. The Court, distinguishing,
but not disapproving of People v. Banks, concluded the trial
court's exclusion of the evidence was not an abuse of discretion.
In People v. Murray, 254 Ill. App. 3d 538, 553, 626 N.E.2d 1140 (1993), the defendant's allegations of abuse of other
suspects were properly excluded because they were "general in
nature***"
Finally, in People v. Maxwell, 173 Ill. 2d 102, 670 N.E.2d 679 (1996), the defendant in a post-conviction proceeding claimed
his constitutional rights were violated at the pre-trial motion
stage because studies and reports establishing physical abuse
and coercion of confessions at Area 2 were not available to him
at the time. The Court held the defendant failed to make a
substantial showing his constitutional rights were violated.
In the case before us, our decision is grounded in basic
evidence law: the trial judge should consider relevant evidence
when deciding whether a confession was voluntarily made.
We understand, as the State has emphasized, that Cannon has
not demonstrated he was injured while in police custody. That,
of course, is a fact the trial court should consider at the new
hearing. See People v. Wilson, 116 Ill. 2d 29, 506 N.E.2d 571
(1987). Likewise, the defendant's failure to immediately report
the alleged beating, while not necessarily dispositive of his
claim he was brutalized, should be considered by the trial judge.
See People v. Case, 218 Ill. App. 3d 146, 156, 577 N.E.2d 1291
(1991).
While it will be the trial court's initial task to determine
what evidence will be heard, we believe the question of whether
the arresting officers possessed shotguns at the time Cannon
claimed they did should be revisited. Since the first hearing in
1984 a Chicago police department equipment log has been made
available to the defense. The log reflects the officers who
arrested the defendant checked out three different shotguns on
the day of the arrest. Each was approved by Sgt. Byrne, who
supervised the arrest and interrogation of Darryl Cannon. Two of
the shotguns were not returned until noon that day, five hours
after Cannon was arrested. An evidentiary hearing should clarify
the conflicting testimony about the shotgun Cannon claims was
placed in his mouth.
At the new hearing the trial court will consider evidence
relevant to the question of suppression, bearing in mind the
conclusions we have reached in this opinion. We make no comment
on the weight or impact of the evidence, nor do we suggest what
the outcome of the hearing should be.
Because we have found another hearing on Cannon's motion to
suppress his confession is required, we need not consider whether
the participation of then-Judge Maloney is sufficient reason for
a new hearing.
CONCLUSION
We remand this cause to the trial court for a new hearing on
the defendant's motion to suppress his confession. To that end,
we also vacate the defendant's conviction and sentence. If,
after a hearing, the trial court decides to suppress the
defendant's confession, it should then proceed to trial. If the
trial court denies the motion to suppress, it should reinstate
the conviction and sentence. We then will proceed to consider
the other issues raised by the defendant in this appeal.
Conviction and sentence vacated and remanded pursuant to
directions of this court.
VACATED AND REMANDED.
CERDA and BURKE, JJ., concur.
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