People v. Rhonda

1-95-2597

THE PEOPLE OF THE STATE OF ILLINOIS,    )    Appeal from the
                                        )    Circuit Court of
          Plaintiff-Appellee,           )    Cook County.
                                        )
          v.                            )    
                                        )    
RHONDA F.,                              )    Honorable
                                        )    Fred Suria,
          Defendant-Appellant.          )    Judge Presiding.


     PRESIDING JUSTICE HARTMAN delivered the opinion of the court:

     Defendant, Rhonda F., age 15, was found guilty by a jury of
second-degree murder.  The circuit court adjudged defendant to be
a ward of the court and sentenced her to an indeterminate term in
custody of the Juvenile Department of Corrections.  Defendant
appeals, claiming error in: (1) the circuit court's finding that
her confession was voluntary; (2) the exclusion of evidence of the
decedent's violent and aggressive character; (3) the exclusion of
evidence of the decedent's prior arrests for child endangerment and
possession of a controlled substance with intent to deliver; (4)
the State's cross-examination of defendant and a defense witness;
(5) the State's comments during closing argument; and (6)
sentencing.  Issue (1) will be considered in this opinion; issues
(2) through (6) will be determined in a separate Supreme Court Rule
23 order disseminated contemporaneously with this opinion.  For
reasons which follow, and those contained in our separate Rule 23
order, we affirm defendant's conviction, reverse her sentence, and
remand this case to the circuit court for resentencing.  
     On March 17, 1993, defendant fatally shot her mother,
Beatrice, once in the chest.  Prior to trial, defendant moved to
suppress statements, claiming that due to her emotional state, she
was unable to understand Miranda warnings and was questioned
although no guardian was present.
     At the hearing on defendant's motion to suppress, Detective
James Cassidy testified he arrived at the scene of the shooting at
1:30 p.m. and saw defendant, crying, sitting in the back seat of a
squad car.  Defendant was taken to the police station, but she was
not a suspect at the time and was not under arrest. 
     Detective Cassidy arrived at the police station between 3:00
p.m. and 3:30 p.m., after speaking to several people in defendant's
neighborhood.  Cassidy and Detective William Moser began to speak
with defendant, who was considered a witness and was free to leave. 
Fifteen minutes into their conversation, Cassidy advised defendant
of her constitutional rights from a preprinted card because she
made a statement which conflicted with statements made by other
people.  Cassidy then told defendant that she could "possibly be
charged as an adult" because a murder had been committed and
considering her age.  Cassidy asked defendant if she wanted the
police to contact her father.  Defendant shook her head to indicate
"no."  Moser left the room to speak with other witnesses and
Cassidy questioned defendant.  Moser subsequently gave Cassidy a
gun he had received from one of defendant's family members. 
Defendant identified the gun as the one she used to shoot Beatrice. 
A photograph was taken of the gun.  After 30 to 45 minutes of
questioning, youth officer Terrell entered the interview room,
introduced himself to defendant, and gave her Miranda advisements. 
Cassidy left the room and Terrell sat with defendant for the next
hour and one-half.
     Detective Cassidy reentered the room when assistant State's
Attorney (ASA) Ted Johnson arrived at 6:30 p.m.  Youth officer
Steven Terrell remained present.  Johnson advised defendant of her
Miranda rights and told her she would be charged as an adult. 
After speaking with defendant for 15 minutes, Johnson and Cassidy
left the room to request a court reporter, but later reentered the
room and spoke with defendant for 10 minutes until the court
reporter arrived.  Defendant was moved into a larger room and her
responses to Johnson's questions were transcribed by the court
reporter.  Defendant then read and signed the statement.  Cassidy,
Johnson and Terrell also signed the statement.
     According to Detective Cassidy, defendant was never promised
that she could go home if she signed the statement nor that her
grandmother was waiting for her at the police station.  Nor did he
tell defendant the story of a boy who killed his father in self-
defense.  Defendant did not cry at the police station; she did not
become upset when shown the gun.  Defendant was never handcuffed
and the door to the interview room remained open during the entire
time she was inside.  Defendant did not ask to speak to her
grandmother or aunt.  Defendant's grandmother, who was at the
police station for a short time, was not allowed to see defendant
"[b]ecause of her hostility towards defendant."
     Detective William Moser testified he was present for
defendant's initial conversation with Detective Cassidy at 3:45
p.m.  Cassidy advised defendant of her rights from a preprinted
card.  Defendant shook her head "no" when asked if she wanted her
father present.  Moser left the room to secure a youth officer for
defendant, but was unable to obtain one immediately because a shift
change was occurring.
     Detective Moser received a gun from one of defendant's family
members.  Moser never promised defendant she could go home nor that
she could talk with her grandmother if she signed a statement. 
Moser did not tell defendant a story of a boy who killed his father
in self-defense.  At approximately 6:00 p.m. at the police station,
Moser spoke with defendant's grandmother, who, along with other
family members, was "highly upset" about the shooting.  Defendant's
grandmother and family members were not permitted to see defendant
because the police believed they might physically harm her.
     Youth officer Steven Terrell testified that after arriving at
the station, he was assigned to defendant's case and first saw
defendant at approximately 5:00 p.m.  Terrell informed defendant
who he was, gave her Miranda warnings from a preprinted form, and
told her she would be charged as an adult.  Defendant understood
her rights.  Defendant was not hungry, but asked for some water,
which Terrell gave her.  Defendant shook her head "no" when asked
if she wanted her father present.  ASA Johnson subsequently arrived
and informed defendant who he was and advised her of her rights. 
During her statement, Terrell showed defendant a photograph of the
gun.  After defendant gave her statement, Johnson read over the
statement, signed each page and handed it to defendant who read it
and signed each page.  Terrell and Cassidy also signed each page of
the statement.  Defendant was responsive and understood Terrell's
questions.  Terrell never told defendant she could go home if she
signed the statement nor did he tell her a story of a boy who shot
his father in self-defense.
     ASA Ted Johnson testified he advised defendant of her rights,
which she understood and agreed to waive.  Defendant understood
that Johnson was a prosecutor.  After a 15-minute conversation,
defendant agreed to give a statement before a court reporter, which
started at approximately 7:30 p.m. and lasted one hour.  Defendant
was responsive to Johnson's questions.  The court reporter
transcribed defendant's statement, which Johnson and defendant read
over, making corrections where necessary.  Johnson, Cassidy,
Terrell and defendant signed each page of the statement and
initialed the one correction made.  Johnson twice showed defendant
a photograph of the gun for identification purposes.  Johnson never
promised defendant she could go home after signing the statement
nor that her grandmother was waiting for her downstairs.  Johnson
did not tell defendant about a boy who shot his father in self-
defense.  Defendant never requested to speak with her grandmother
or any other family member.  The State rested.
     Beauty Donald, defendant's grandmother and Beatrice's mother,
testified that on March 17, 1993, she went to the morgue after
learning of Beatrice's death.  Donald then went to Beatrice's house
where two detectives told her defendant had been taken to the
police station.  Donald arrived at the police station between 4:00
p.m. and 5:00 p.m. and asked to see defendant, who was being held
for questioning.  Donald's two or three requests to see defendant
were denied.  A police officer told Donald to go home because her
son had been killed nine months before and it was "too much" for
her.  Donald waited 30 to 40 minutes before leaving.  Donald
telephoned the police station several times that evening and was
told she could not see defendant.  On cross-examination, Donald,
who was accompanied to the police station by her daughter, Latonya,
and two nieces, did not know defendant was charged with the
shooting until the next day.  All the women were upset and crying,
but they were not "hollering."
     Defendant testified the police officers put her in the back of
a squad car at approximately 1:30 p.m.  She tried to open the door,
but the police would not let her out nor would they let Aunt
Latonya enter the squad car.  Defendant, who was crying, sat in the
squad car for a couple of hours.  Defendant asked to speak with her
grandmother and aunt.  Defendant was read her rights and then taken
to a small room at the police station where she was questioned by
Detective Cassidy for "some hours."  He did not read defendant her
rights.  Detective Moser was also in the room and kept "making
smart remarks" to defendant.  Defendant was crying and asked about
Beatrice.  Between 6:00 p.m. and 7:00 p.m., Moser told defendant
that Beatrice was dead.  Defendant jumped up and attempted to
leave, but the detectives would not let her.  A detective told
defendant that her grandmother was downstairs, but he denied
defendant's several requests to see her.  Defendant was told she
had to finish her statement before she could see her grandmother. 
One of the detectives tried to persuade defendant to make
statements by telling her of a boy who shot his father in self-
defense.  Defendant was never asked if she wanted to speak with her
father.  She did not request to speak to him.  Defendant was with
the police three or four hours before youth officer Terrell entered
the room.  When shown the gun and the photograph of it several
times, defendant was upset and did not want to see it anymore.
     On cross-examination, defendant stated she asked the police
officer who eventually took her to the police station to let her
out of the squad car, but he would not let her leave.  She was not
read her rights until she arrived at the police station, where she
was placed in a small room.  The door was closed, but defendant did
not know if it was locked.  After a few minutes, Detective Cassidy
entered and spoke with defendant, leaving the door open.  Cassidy
asked defendant what had happened and she told him to speak with
Beatrice.  Detective Moser entered the interview room, sat and
listened.  Moser became upset when defendant would not talk and
exited and reentered the room several times.  Cassidy read
defendant her rights, but defendant could not remember exactly what
he said nor did she understand the Miranda warnings: she did not
understand that she did not have to say anything.  Cassidy left and
returned thereafter with ASA Johnson.  Youth officer Terrell did
not arrive until after Johnson left.  Defendant did not know what
a youth officer was at the time of her questioning.  Terrell asked
defendant what school she attended, how old she was, and where her
father was located.  Defendant did not say anything.  Terrell did
not ask defendant if she wanted her father present, provide Miranda
warnings, or tell defendant that she could be charged as an adult. 
After she refused to speak with Terrell, he just sat there.
     Defendant stated that when ASA Johnson and Detective Cassidy
returned, Johnson told her he was a prosecutor and did not
represent her.  Defendant did not understand who Johnson was and
stated she "wasn't listening to what they [were] saying."  She
"just wanted to go home."  Johnson did not read defendant her
rights until just before the court reporter arrived.  Johnson told
defendant she had to make a statement and he and Cassidy stated
that she could see her grandmother and go home after making a
statement.  Johnson read defendant her rights a second time when
she was making her statement.
     When Detective Cassidy showed defendant the gun, she pushed it
away and did not say anything.  ASA Johnson made defendant look at
photographs of the gun against her wishes.  She never identified
the gun for Johnson, but acknowledged doing so in her statement. 
Defendant did not read her statement before signing it.  After
defendant signed it, Johnson tried to read it to her, but she stood
up to leave.  Johnson told her to wait and again began reading the
statement, but defendant asked to leave and Johnson then left. 
Defendant did not initial the statement.  She did not know what it
meant to be tried as an adult and she was never told that she could
be tried as an adult.  Defendant was very tired during the
questioning and wanted to go home.
     In rebuttal, police officer Mark Parus testified that a few
minutes after he arrived at the scene of the shooting, defendant
exited her house and was surrounded by a large group of people. 
Defendant accepted a police officer's invitation to sit inside a
squad car.  Defendant's aunt, Latonya, asked to speak with
defendant and Parus directed her to the squad car.  Aunt Latonya
opened the door and spoke with defendant for a few minutes before
leaving with defendant's grandmother.  Defendant did not ask to
speak with anyone nor did she ask to exit the squad car.
     In ruling on defendant's motion to suppress, the court stated
that the issue involved whether defendant, "at age 16," knowingly,
intelligently and voluntarily waived her rights.  The court noted
that in her statement, defendant acknowledged being treated well,
was not threatened or promised anything, and stated that she gave
her statement voluntarily.  The court believed that the police
officers could have interpreted the grandmother's upset condition
as anger toward defendant and denied defendant's motion to
suppress, finding that defendant knowingly and intelligently waived
her rights and freely and voluntarily gave her statement.
     Defendant contends the circuit court's finding that her
confession was voluntary was manifestly erroneous where police
failed to make a good faith effort to secure the presence of a
concerned adult, refused to permit defendant's grandmother to see
her, and gave defendant incomplete and misleading Miranda warnings.
     Juveniles, as well as adults, enjoy the constitutional
privilege against self-incrimination and the State must
demonstrate, by a preponderance of the evidence, that a confession
was voluntarily made.  People v. Lash, 252 Ill. App. 3d 239, 242,
624 N.E.2d 1129 (1993).  On review, a court must determine whether
the circuit court's finding of voluntariness is against the
manifest weight of the evidence.  People v. Davis, 97 Ill. 2d 1,
20, 452 N.E.2d 525 (1983).  A court must consider the totality of
the relevant circumstances surrounding the making of the statement
(People v. Prude, 66 Ill. 2d 470, 475, 363 N.E.2d 371 (1977)),
including whether any promises or threats were made, whether
defendant was instructed as to her constitutional rights, the
duration of the questioning, and the age, education and
intelligence of defendant.  Lash, 252 Ill. App. 3d at 243.
     Section 3-8(2) of the Juvenile Court Act of 1987 (Act)
provides:
          "A law enforcement officer who takes a minor
          into custody without a warrant *** shall, if
          the minor is not released, immediately make a
          reasonable attempt to notify the parent or
          other person legally responsible for the
          minor's care or the person with whom the minor
          resides that the minor has been taken into
          custody and where the minor is being held; and
          the law enforcement officer shall without
          unnecessary delay take the minor to the
          nearest juvenile police officer designated for
          such purposes in the county of venue or shall
          surrender the minor to a juvenile police
          officer in the city or village where the
          offense is alleged to have been committed." 
          705 ILCS 405/3-8(2) (West 1992).
               Defendant claims the police violated the Act, relying upon
People v. Montanez, 273 Ill. App. 3d 844, 652 N.E.2d 1271 (1995). 
In Montanez, defendant was arrested at 9:00 p.m. and taken to a
police interview room, where she was informed "of her Miranda
rights and that she could 'possibly' be charged as an adult."  273
Ill. App. 3d at 845.  A youth officer was requested and a police
car was sent to locate defendant's family.  Unknown to a detective,
defendant's mother was at the police station and was not allowed to
see defendant.  Two police officers arrived at defendant's home at
10:00 p.m. and first told defendant's mother that defendant was in
protective custody; later, they stated that defendant was involved
in a murder.  273 Ill. App. 3d at 846.  Defendant's mother was told
she could not see defendant at that time and the police would
contact her when she could see her daughter.  At 10:00 p.m.,
defendant was questioned for 20 or 30 minutes.  A youth officer did
not arrive until 12:30 a.m. the next day, and was present for
subsequent questioning at 1:15 a.m., 5:15 a.m., and 6:15 a.m. 
Defendant's mother, who had not heard from the police, went to the
police station at 2:00 a.m.  She was told to wait, then to "'get
the hell out'" of the station.  Defendant's mother continued to ask
to see her daughter every hour after that and was finally allowed
to see her at 8:30 a.m.  The Montanez court found defendant's
confession involuntary where she was questioned prior to seeing
either a youth officer or her mother, who was present at the police
station during the time she was being questioned.  273 Ill. App. 3d
at 849-55.  The court noted that "not only was defendant
interrogated before having an opportunity to confer with a
concerned adult but, worse, any opportunity to do so was
effectively frustrated by police."  273 Ill. App. 3d at 854.
     In the present case, defendant claims she similarly was
questioned in the absence of a concerned adult.  The evidence
adduced at the suppression hearing was sufficient to permit the
circuit court to believe the following evidence.  Defendant was not
brought into the police station under arrest, but as a witness. 
Initially, defendant had accepted a police officer's invitation to
escape the crowd and sit in a squad car.  Defendant then agreed to
go to the police station to speak with Detective Cassidy.  Fifteen
minutes into their conversation, defendant made a statement which
was inconsistent with Cassidy's information.  Defendant then was
given Miranda warnings and Detective Moser left immediately to
secure a youth officer for defendant.  Defendant claims she was
interrogated without a concerned adult present, but defendant was
not under arrest when she arrived at the police station and there
is no showing she was under arrest even after Miranda advisement. 
See People v. Barlow, 273 Ill. App. 3d 943, 949, 654 N.E.2d 223
(1995), citing People v. Williams, 164 Ill. 2d 1, 13, 645 N.E.2d 844 (1994); People v. Armstrong, 244 Ill. App. 3d 545, 553, 614 N.E.2d 427 (1993).  On this fact alone, the present case is
distinguishable from Montanez.
     Montanez, however, also involved extreme circumstances
supporting a finding of involuntariness which are absent here. 
Unlike Montanez, defendant here was not arrested, taken to the
police station, and interrogated several times throughout the
middle of the night.  Further, defendant's guardian was not
prevented from seeing her: her mother was dead and she did not want
the detectives to contact her father.  Although the presence or
absence of a parent is a factor to consider in determining the
voluntariness of a confession, there is no per se rule that a
parent or guardian be present.  People v. Gardner, 282 Ill. App. 3d
209, 218, 668 N.E.2d 125 (1996); People v. Bobe, 227 Ill. App. 3d
681, 703, 592 N.E.2d 301 (1992).  As soon as defendant made a
statement inconsistent with other people's statements, the
detectives advised her of her Miranda rights and attempted to
obtain a youth officer.  A youth officer was not located
immediately because a shift change was occurring.  These
circumstances lack, entirely, the extreme and pernicious
overreaching of Montanez.
     Defendant here analogizes the police detectives' refusal to
permit her grandmother to see her to the police obstruction in
Montanez.  Beauty Donald's testimony conflicted with Detective
Moser's testimony.  Donald, who was at the police station for 30 to
40 minutes, stated she arrived there between 4:00 p.m. and 5:00
p.m.  Moser spoke with Donald at 6:00 p.m.  It is the circuit
court's province to resolve conflicts in the evidence and determine
the credibility of the witnesses.  Lash, 252 Ill. App. 2d at 242-
43.  Reading Donald's and Moser's testimony together, Donald
arrived at the police station sometime after 5:00 p.m.  By this
time, however, youth officer Terrell was already meeting with
defendant.  Cf. Montanez, 273 Ill. App. 3d at 849-55.  Defendant,
moreover, does not assert that her grandmother was a "person
legally responsible" for her care.  705 ILCS 405/3-8(2) (West
1992).  Unlike Montanez, therefore, defendant's parent or guardian
was not prevented from seeing her.  Additionally, the police
detectives' refusal to permit Donald and other family members see
defendant was not without reason: the family members were "highly
upset" and the detectives believed they might physically harm
defendant.  Donald acknowledged that she was upset at the police
station, but stated she was not "hollering."
     Defendant next contends the evidence shows that the police
made no effort to contact her father.  Defendant was asked by
Detectives Cassidy and Moser and youth officer Terrell whether she
wanted them to contact her father.  Defendant shook her head "no." 
Defendant's mother was dead.  See 705 ILCS 405/3-8(2) (West 1992). 
The detectives' failure to make other efforts to contact
defendant's father and thereby comply with section 3-8(2) of the
Act is one factor to consider in determining whether defendant's
confession was voluntary.  See People v. Denton, 256 Ill. App. 3d
403, 405, 628 N.E.2d 900 (1993); 705 ILCS 405/3-8(2) (West 1992).
     Defendant next asserts this court should also consider the
fact that she was a 15-year-old and the circuit court stated that
she was a 16-year-old.  On the day of the shooting, defendant was
four months shy of her sixteenth birthday.  Although the court
misstated defendant's age, her age is one factor to consider in
deciding whether her confession was voluntary (see Lash, 252 Ill.
App. 3d at 243), and the court's misstatement is not as detrimental
or inaccurate as defendant would have this court conclude.
     Defendant also maintains that she was not properly advised of
her rights because the Miranda warnings given were misleading and
incomplete.  Defendant claims that ASA Johnson's testimony revealed
that he gave incomplete Miranda warnings upon first interviewing
defendant and she was inappropriately informed she "could" be tried
as an adult although Illinois law requires a 15-year-old charged
with first-degree murder be tried as an adult.  705 ILCS 405/5-
4(6)(a) (West 1992).  Although ASA Johnson did not repeat all the
Miranda warnings at the hearing on defendant's motion to suppress,
defendant ignores the testimony of Detective Cassidy and youth
officer Terrell that they gave her Miranda warnings from preprinted
cards.  Defendant does not complain of the Miranda warnings prior
to her statement to the court reporter.  Defendant's argument is
based, therefore, upon the third time she received Miranda
advisement that day.  Defendant's own testimony, however, was
contradictory as to when she first received Miranda warnings: she
testified she received them while in the police car, but then
stated on cross-examination that she was not given Miranda warnings
until arriving at the police station.  The credibility of the
witnesses is within the province of the circuit court to determine
(Lash, 252 Ill. App. 2d at 242-43), and the evidence does not
support defendant's contention here.
     Defendant next argues that the detectives and ASA improperly
told her she "could" or "could possibly" be charged as an adult,
leading her to believe that the police and ASA had the option of
charging her either as an adult or a juvenile depending on her
level of cooperation.  ASA Johnson testified that when he arrived
at the police station, he advised defendant she could be tried as
an adult due to her age and "the type of investigation" they were
conducting.  Defendant asserts that she gave five different
accounts to the police and after the final interview with the ASA,
admitted to shooting her mother.  This evidence, however, was not
adduced until trial.  Notwithstanding defendant's failure to adduce
this evidence at the pretrial hearing, the fact that defendant gave
five different statements demonstrates that the ASA did not know
what crime defendant would be charged with committing.  The
investigation was still proceeding and defendant was initially
brought in as a witness.  See generally People v. Prude, 66 Ill. 2d 470, 475-76, 363 N.E.2d 371 (1977).  Defendant contends the use of
the word "could" here was misleading and motivated her to
cooperate.  Defendant's argument proves too much because her
contention, if accepted, would require law enforcement to predict
the outcome of an investigation in the midst of questioning. 
Defendant, moreover, overlooks youth officer Terrell's testimony
that he told her she "would" be tried as an adult.  Johnson
testified he told defendant she could be tried as an adult based on
her age and the type of investigation they were conducting.  No
more was required.  See People v. Prude, 66 Ill. 2d 470, 475-76,
363 N.E.2d 371 (1977); see also People v. Brooks, 241 Ill. App. 3d
84, 86, 608 N.E.2d 635 (1993), rev'd on other grounds, 158 Ill. 2d 260, 633 N.E.2d 692 (1994); cf. People v. Jones, 8 Ill. App. 3d
849, 852, 291 N.E.2d 305 (1972).
     In sum, the evidence shows that defendant was questioned
during the middle of the day in the absence of a concerned adult
for 30 to 45 minutes.  Detective Moser attempted to contact a youth
officer as soon as defendant made a statement inconsistent with the
detectives' information.  Defendant was not brought into the police
station under arrest and there is no showing or contention that she
was under arrest during the brief period when she was questioned in
the absence of a concerned adult.  Defendant's mother was dead and
she did not want the police to contact her father.  Although
defendant's grandmother was not permitted to see her, the
detectives believed she was too upset and might harm defendant. 
Even if the detectives' concerns regarding the emotional state of
defendant's grandmother were unjustified, defendant was already
meeting with a youth officer when her grandmother was at the police
station.  Moreover, ASA Johnson stated that defendant never asked
to speak with her grandmother or any other family member.  At the
time of the questioning, defendant was four months shy of her
sixteenth birthday.  See People v. Williams, 275 Ill. App. 3d 249,
252, 655 N.E.2d 1071 (1995); People v. R.B., 232 Ill. App. 3d 583,
594, 597 N.E.2d 879 (1992).  The circuit court's determination that
defendant's confession was voluntary was not contrary to the
manifest weight of the evidence.
     Accordingly, the order of the circuit court correctly denied
defendant's motion to suppress her confession; and, as held in the
accompanying Rule 23 order, defendant was not denied a fair trial
by the court's exclusion of certain evidence, or by the State's
comments on cross-examination and during closing argument; however,
as the State concedes, defendant was improperly sentenced.  We,
therefore, affirm defendant's conviction, reverse her sentence, and
remand this case to the circuit court for resentencing.
     Affirmed in part, reversed in part, and remanded.
     HOFFMAN and SOUTH, JJ., concur.