In re A. R.
Annotate this Case
FOURTH DIVISION
MARCH 12, 1998
No. 1--96--3305
In Re A.R., a Minor,
(THE PEOPLE OF THE STATE OF ILLINOIS,
Petitioner-Appellee,
v.
A.R.,
Respondent-Appellant). )
)
)
)
)
)
)
)
)
)
) Appeal from the
Circuit Court of
Cook County
No. 96--JD--5436
Honorable
Richard Walsh,
Judge Presiding.
PRESIDING JUSTICE CERDA delivered the opinion of the court:
Respondent, 15-year-old A.R., was found delinquent on the
basis of two counts of aggravated battery (720 ILCS 5/12-4 (West
1994)) and aggravated discharge of a firearm (720 ILCS 24-
1/2(a)(2)(West 1994). He was sentenced to five years' probation.
On appeal, respondent asserts that (1) he was not proven guilty
beyond a reasonable doubt; and (2) he received ineffective
assistance of counsel. For the following reasons, we vacate the
conviction and remand this cause for further proceedings.
Javier Perez testified that he went to a gangway at 72nd and
Washtenaw Streets, Chicago, to see Cory Ellis, on April 2, 1996.
When he arrived, four men, including respondent and Cory Ellis,
were present. Five to ten minutes later, while Perez was talking
with Ellis, one of the men said something like "what is up,"
pulled a gun from his pocket, and shot Perez in his side.
Respondent was standing next to the shooter. After being shot,
Perez fell to the ground, then dragged himself to the front yard,
where a passerby helped him. As a result of the gunshot wound,
Perez suffered a spinal cord injury, which left him paralyzed.
Cory Ellis testified that respondent's brother, Kenneth
Robinson, called him several times on April 2, 1996, to buy
marijuana from him. When Ellis went to a house at 72nd and
Washtenaw Streets at about 6 p.m. for a pre-arranged meeting with
Robinson, Robinson and respondent accompanied Ellis to the
backyard. Robinson was looking at the marijuana when Ellis's
friend, Perez, walked toward them. Ellis told Robinson to hurry
up, but Robinson seemed to be stalling. As Perez walked down the
gangway, he told Ellis he would wait for him in the front. At
that point, Robinson took a gun from his pocket and shot Perez
once. At the time of the shooting, respondent was behind
Robinson, watching.
Chicago police detective Roland Paulintsky testified that he
investigated the shooting. After going to the hospital where
Perez was being treated, Paulintsky went to the scene of the
shooting. In the gangway, he saw blood splatters and a shell
casing. He then went into the house and spoke with respondent.
Respondent's younger brother and stepfather were also in the
house. After speaking with respondent's stepfather, Paulintsky
advised respondent of his Miranda rights and took him to the
police station. After respondent gave an oral confession at the
police station, Paulintsky contacted a youth officer.
When respondent's biological father arrived, respondent
repeated his confession in front of his father, Chicago police
youth officer Cheryl Guratowski, Detective Paulintsky, and
assistant State's Attorney Montel Gayles. In his statement,
respondent said that he overheard his brother and cousin talking
about buying marijuana from Ellis on April 2, 1996. His brother
Kenneth said that they would stick-up Ellis and take the
marijuana, which Kenneth would sell. His brother planned to keep
the money. Respondent heard Kenneth call Ellis three or four
times and inquire about buying a pound and a half of marijuana.
Before Ellis arrived around 6 p.m., respondent warned
Kenneth that it was not a good idea to rob Ellis because
something might happen to their house or their family. Kenneth
agreed, but then told respondent that when Ellis arrived, he
should act like he did not know Kenneth and should do everything
that Kenneth told the others to do.
When Ellis came to the house, Kenneth told respondent to
come outside with him and Ellis. Respondent followed the two men
into the backyard. Ten seconds later, Perez arrived. After
Ellis took three plastic baggies filled with marijuana out of a
backpack, Kenneth complained that Ellis had shorted him the last
time. After Perez denied that he had shorted Kenneth earlier,
Kenneth turned his back and looked at the marijuana. He then
turned back toward the men and pulled a gun from his pocket.
Perez tried to run, but Kenneth told him to stay. Kenneth hit
Ellis in the mouth with the gun, then told everyone to get on
ground. When no one got on the ground, Kenneth shot Perez in the
chest. Ellis and Kenneth ran, but respondent stayed to help
Perez. He returned home until the police arrived later that
evening.
After closing arguments, the trial court found respondent
guilty of two counts of aggravated battery and aggravated
discharge of a firearm based on his written statement. The court
found that both Ellis and Perez were not credible witnesses.
After being found delinquent, respondent was sentenced to five
years' probation.
The first issue is whether defendant received ineffective
assistance of counsel because his attorney failed to file a
motion to quash his arrest and suppress evidence or to refile a
motion to suppress his statements.
In order to establish ineffective assistance of counsel, a
defendant generally must prove that his counsel was deficient and
that he was prejudiced by that deficiency. Strickland v.
Washington, 466 U.S. 668, 687, 80 L. Ed. 2d 674, 693, 104 S. Ct. 2052, 2064 (1984); People v. Albanese, 104 Ill. 2d 504, 525, 473 N.E.2d 1246 (1984). To show prejudice, the defendant must
demonstrate that there was a reasonable probability that, but for
counsel's unprofessional errors, the result of the proceeding
would have been different. Strickland, 466 U.S. at 694, 80 L. Ed. 2d at 698, 104 S. Ct. at 2068. A reasonable probability is a
probability sufficient to undermine confidence in the outcome.
Strickland, 466 U.S. at 694, 80 L. Ed. 2d at 698, 104 S. Ct. at
2068. In making a determination of prejudice, the court must
examine the totality of the circumstances. Strickland, 466 U.S.
at 695, 80 L. Ed. 2d at 698, 104 S. Ct. at 2069.
To prevail on a claim that his trial counsel was ineffective
for failing to file a motion to quash arrest or suppress
statements, the defendant must show that there was a reasonable
probability that the motion would have been granted and that the
outcome of the trial would have been different if the arrest had
been quashed or the statements suppressed. People v. Morris, 229
Ill. App. 3d 144, 157, 593 N.E.2d 932 (1992); People v. Bennett,
222 Ill. App. 3d 188, 201, 582 N.E.2d 1370 (1992); People v.
Mendez, 221 Ill. App. 3d 868, 873, 582 N.E.2d 1265 (1991).
Defendant argues that he was arrested without probable cause
and that his statements were involuntary. In determining whether
an arrest has occurred, the court must make an objective
determination whether a reasonable person, innocent of any crime,
would have considered himself or herself arrested or free to
leave. Michigan v. Chesternut, 486 U.S. 567, 573, 100 L. Ed. 2d 565, 572, 108 S. Ct. 1975, 1979 (1988); People v. Holveck, 141 Ill. 2d 84, 95, 565 N.E.2d 919 (1990). The factors to consider
include the time, place, length, mood, and mode of the interro-
gation; the number of police officers present; any indicia of
formal arrest or evidence of restraint; the intention of the
officers; the extent of the officers' knowledge; the focus of the
officers' investigation (People v. Brown, 136 Ill. 2d 116, 124-
25, 554 N.E.2d 216 (1990)); the subjective belief of the detainee
concerning his arrest status (People v. Booker, 209 Ill. App. 3d
384, 393, 568 N.E.2d 211 (1991)); any statement or non-verbal
conduct by the police indicating that the detainee was not free
to leave (People v. Langlo, 153 Ill. App. 3d 636, 641-42, 505 N.E.2d 1338 (1987)); and whether the detainee was told that he
was free to leave or that he was under arrest. Holveck, 141 Ill. 2d at 95; People v. Reynolds, 257 Ill. App. 3d 792, 799 (1994).
The police officer's subjective belief that the detainee was free
to leave is not determinative if it was not communicated to the
defendant. People v. Stofer, 180 Ill. App. 3d 158, 168, 534 N.E.2d 1287 (1989). No one factor is dispositive. A
determination will vary with all of the circumstances surrounding
the detention in each case. Chesternut, 486 U.S. at 572, 100 L. Ed. 2d at 571, 108 S. Ct. at 1978.
Whether or not probable cause for an arrest exists depends
on the totality of the facts and circumstances known to the
officers when the arrest was made. People v. James, 118 Ill. 2d 214, 223, 514 N.E.2d 998 (1987). Probable cause "requires more
than mere suspicion, but it does not require the arresting
officers to have in their hands evidence sufficient to convict
the defendant." In re D.G., 144 Ill. 2d at 409.
For a confession to be admissible at trial, it must be free,
voluntary, and not obtained by any direct or implied promises,
however slight, nor by the exertion of any improper influence.
Malloy v. Hogan, 378 U.S. 1, 12 L. Ed. 2d 653, 84 S. Ct. 1489
(1964); People v. Thomas, 137 Ill. 2d 500, 516, 561 N.E.2d 57
(1990). The test for the voluntariness of a confession is
whether, under the totality of the circumstances, the statement
was made freely, without compulsion or inducement, with con-
sideration given to the characteristics of the accused and the
details of the interrogation. Thomas, 137 Ill. 2d at 516.
Under the Juvenile Court Act (705 ILCS 405/5-6 (West 1992)),
a law enforcement officer who takes a minor into custody shall
immediately make a reasonable attempt to notify the parent and
shall without unnecessary delay take the minor to the nearest
juvenile officer. The purpose of the "notice" requirement is to
permit, where possible, a parent to confer and counsel with the
juvenile before interrogation and confession. People v.
Montanez, 273 Ill. App. 3d 844, 652 N.E.2d 1271 (1995).
Factors to be considered in determining whether the confes-
sion was voluntary include the defendant's age, education, intel-
ligence, experience and physical condition; the length and
intensity of the interrogation; the existence of any threats,
promises, or physical coercion; whether the confession was
induced by police deception; and whether defendant was informed
of his constitutional rights. People v. Martin, 102 Ill. 2d 412,
427, 466 N.E.2d 228 (1984); People v. MacFarland, 228 Ill. App.
3d 107, 117, 592 N.E.2d 471 (1992). When a juvenile's confession
is at issue, additional factors come into play, including the
time of day and the presence of a parent or other adult
interested in the juvenile's welfare. People v. Brown, 235 Ill.
App. 3d 479, 490, 601 N.E.2d 1190 (1992).
Although the presence of a youth officer does not per se
make a juvenile's confession voluntary, it is a significant
factor. In re Lashun H., 284 Ill. App. 3d 545, 557, 672 N.E.2d 331 (1996). The failure to have a juvenile officer present is
material to determining the voluntariness of defendant's
statement. People v. Knox, 186 Ill. App. 3d 808, 815, 542 N.E.2d 910 (1989). The presence or absence of a parent is also a factor
in evaluating the voluntary nature of a confession. Montanez,
273 Ill. App. 3d at 854; In re J.O., 231 Ill. App. 3d 853, 855,
596 N.E.2d 1285 (1992). The relevant inquiry is whether the
absence of an adult interested in the defendant's welfare
contributed to the coercive circumstances surrounding the
interview, not whether contact with a parent was denied. Knox,
186 Ill. App. 3d at 814.
The following cases are helpful in deciding whether the
confession in this case was voluntary. In Montanez, 273 Ill.
App. 3d 844, the confession was involuntary. The court stated:
"'Notice' here must be understood to have
some purpose, namely to allow, where
possible, the concerned adult to confer and
counsel with the juvenile before
interrogation and confession. Yes, an
attempt was made to contact a youth officer
before the statement was taken; but the
interrogation went forward anyway within
minutes. And yes, the parent here was
'notified' but in the same breath she was
told she could not see her child until
called. These circumstances demonstrate the
intended fulfillment of notice here was
simply a charade." Montanez, 273 Ill. App.
3d at 850.
Montanez further held that the failure to have the opportunity to
confer was material in determining the voluntariness of a minor
defendant's statement. 273 Ill. App. 3d at 852.
In In re J.O., 231 Ill. App. 3d 853, the parents of a minor
respondent went to the police station, but did not ask to talk to the
respondent. As a result, they were not taken to see him. Instead,
they waited in the police station lobby while the respondent was being
questioned. The court stated:
"A juvenile's age and the fact that the
interrogation occurred in the middle of the
night may properly be considered in
evaluating the voluntary nature of a
confession. [Citation] Additionally, if
parents have indicated an interest by their
presence, then they should be allowed to
confer with their children before any
questioning occurs. [Citation] The presence
or absence of a parent is a factor in
evaluating the voluntary nature of a
confession under the totality of the
circumstances test. [Citation] Accordingly,
because the trial court's ruling was based on
the totality of the circumstances and the
court considered proper factors in making its
determination, we affirm its granting of the
motion to suppress." In re J.O., 231 Ill.
App. 3d at 855.
In People v. R.B., 232 Ill. App. 3d 583, 597 N.E.2d 879 (1992),
the 15-year-old defendant maintained that his statement was
involuntary. The court explained in deciding the case:
"This court has stated that the failure to
telephone a juvenile's parents, or the
absence of a parent during questioning, is a
factor in determining voluntariness, but is
not determinative of whether defendant's
confession should be suppressed. [Citation]
However, where the State failed to take
appropriate steps to ensure that a juvenile
defendant had an opportunity to confer with
an interested adult, either a parent or a
youth officer, this court has held that the
police conduct rendered his confession
inadmissible. [Citation] R.B., 232 Ill.
App. 3d at 593.
The court then held that the confession was involuntary.
In this case, the totality of the circumstances suggests that
respondent was arrested after he gave an oral confession, which was
likely involuntary since no adult interested in his welfare was
present. There was no parent present and the police did not contact a
youth officer until after respondent gave his confession. This case
is similar to the recent case of People v. Fuller, 292 Ill. App. 3d
651, 686 N.E 2d 6 (1997), in which this court ruled that the minor
defendant's first confession was involuntary because it was given
without a parent present and before the police contacted a youth
officer.
It is disturbing that respondent was questioned without an
interested adult being present and before the police even contacted
the youth officer. Receiving an incriminating statement by a juvenile
in the absence of counsel is a sensitive concern requiring great care
to assure that the juvenile's confession was neither coerced,
suggested, nor the product of fright or despair. People v. Prude, 66 Ill. 2d 470, 476, 363 N.E.2d 371 (1977). As a result, courts
scrutinize custodial statements by juvenile suspects with particular
care, given that the potential for coercion is enhanced. Brown, 235
Ill. App. 3d at 490.
We do not know if the police asked respondent's step-father to
come to the police station or contacted his biological parents before
questioning him. We do know, however, that his biological father
arrived after he gave his oral confession and that the youth officer
was not contacted until after he had given that confession. While the
absence of a parent or youth officer does not per se make a juvenile's
confession involuntary, the police must make every reasonable effort
to have a parent, youth officer, or other interested adult present
before they question a juvenile.
Nevertheless, we do not have to decide whether the arrest was
illegal or the confession involuntary. The issue in this case is
whether respondent received ineffective assistance of counsel because
his attorney failed to challenge the legality of the arrest or
voluntariness of his confession. Based on the foregoing, we find that
there was enough evidence to suggest that there was a reasonable
probability that, but for counsel's unprofessional errors, the result
of the proceeding would have been different. Strickland, 466 U.S. at
694, 80 L. Ed. 2d at 698, 104 S. Ct. at 2068.
Because we conclude that respondent received ineffective
assistance of counsel, we are vacating his conviction and remanding
this cause to the circuit court for a hearing on his motion to quash
arrest and suppress statements. If the circuit court grants the
motion, a new trial is ordered. If, however, the circuit court denies
the motion, the conviction is affirmed.
In light of that decision, double jeopardy requires that we
address respondent's challenge to the sufficiency of the evidence.
People v. Digirolamo, 179 Ill. 2d 24, 42, 688 N.E.2d 116 (1997).
Based on the evidence, particularly respondent's confession, we
find that there was sufficient evidence to convict him of aggravated
battery and aggravated discharge of a firearm. A defendant is
accountable for acts performed by another if he shared a common
criminal plan or purpose. People v. Taylor, 164 Ill. 2d 131, 140-41,
646 N.E.2d 567 (1995). The common-design rule provides that where two
or more persons engage in a common criminal design or agreement, any
acts in the furtherance of that common design committed by one party
are considered to be the acts of all parties to the design or
agreement and all are equally responsible for the consequences of the
further acts. In re W.C., 167 Ill. 2d 307, 337, 657 N.E.2d 908
(1995). The common design can be inferred from the circumstances
surrounding the commission of the unlawful conduct. Taylor, 164 Ill. 2d at 141. Proof of the common purpose or design need not be
supported by words of agreement, but may be drawn from the
circumstances surrounding the commission of the unlawful conduct.
People v. Furby, 138 Ill. 2d 434, 456, 563 N.E.2d 421 (1990); People
v. Reid, 136 Ill. 2d 27, 61, 62, 554 N.E.2d 174 (1990). Evidence that
a defendant voluntarily attached himself to a group bent on illegal
acts with the knowledge of its design supports an inference that he
shared the common purpose and will sustain his conviction for an
offense committed by another. In re W.C., 167 Ill. 2d at 338; Taylor,
164 Ill. 2d at 141. Accountability may be established through a
person's knowledge of and participation in the criminal scheme, even
though there is no evidence that he directly participated in the
criminal act itself. In re W.C., 167 Ill. 2d at 338.
Because we conclude that respondent received ineffective
assistance of counsel, we are vacating his conviction and remanding
this cause to the circuit court for a hearing on his motion to quash
arrest and suppress statements. If the circuit court grants the
motion, a new trial is ordered. If, however, the circuit denies the
motion, the conviction is affirmed.
Vacated and remanded with instructions.
McNamara, J., and Burke, J., concur.
MARCH 12, 1998
No. 1--96--3305
In Re A.R., a Minor,
(THE PEOPLE OF THE STATE OF ILLINOIS,
Petitioner-Appellee,
v.
A.R.,
Respondent-Appellant). )
)
)
)
)
)
)
)
)
)
) Appeal from the
Circuit Court of
Cook County
No. 96--JD--5436
Honorable
Richard Walsh,
Judge Presiding.
PRESIDING JUSTICE CERDA delivered the opinion of the court:
Respondent, 15-year-old A.R., was found delinquent on the
basis of two counts of aggravated battery (720 ILCS 5/12-4 (West
1994)) and aggravated discharge of a firearm (720 ILCS 24-
1/2(a)(2)(West 1994). He was sentenced to five years' probation.
On appeal, respondent asserts that (1) he was not proven guilty
beyond a reasonable doubt; and (2) he received ineffective
assistance of counsel. For the following reasons, we vacate the
conviction and remand this cause for further proceedings.
Javier Perez testified that he went to a gangway at 72nd and
Washtenaw Streets, Chicago, to see Cory Ellis, on April 2, 1996.
When he arrived, four men, including respondent and Cory Ellis,
were present. Five to ten minutes later, while Perez was talking
with Ellis, one of the men said something like "what is up,"
pulled a gun from his pocket, and shot Perez in his side.
Respondent was standing next to the shooter. After being shot,
Perez fell to the ground, then dragged himself to the front yard,
where a passerby helped him. As a result of the gunshot wound,
Perez suffered a spinal cord injury, which left him paralyzed.
Cory Ellis testified that respondent's brother, Kenneth
Robinson, called him several times on April 2, 1996, to buy
marijuana from him. When Ellis went to a house at 72nd and
Washtenaw Streets at about 6 p.m. for a pre-arranged meeting with
Robinson, Robinson and respondent accompanied Ellis to the
backyard. Robinson was looking at the marijuana when Ellis's
friend, Perez, walked toward them. Ellis told Robinson to hurry
up, but Robinson seemed to be stalling. As Perez walked down the
gangway, he told Ellis he would wait for him in the front. At
that point, Robinson took a gun from his pocket and shot Perez
once. At the time of the shooting, respondent was behind
Robinson, watching.
Chicago police detective Roland Paulintsky testified that he
investigated the shooting. After going to the hospital where
Perez was being treated, Paulintsky went to the scene of the
shooting. In the gangway, he saw blood splatters and a shell
casing. He then went into the house and spoke with respondent.
Respondent's younger brother and stepfather were also in the
house. After speaking with respondent's stepfather, Paulintsky
advised respondent of his Miranda rights and took him to the
police station. After respondent gave an oral confession at the
police station, Paulintsky contacted a youth officer.
When respondent's biological father arrived, respondent
repeated his confession in front of his father, Chicago police
youth officer Cheryl Guratowski, Detective Paulintsky, and
assistant State's Attorney Montel Gayles. In his statement,
respondent said that he overheard his brother and cousin talking
about buying marijuana from Ellis on April 2, 1996. His brother
Kenneth said that they would stick-up Ellis and take the
marijuana, which Kenneth would sell. His brother planned to keep
the money. Respondent heard Kenneth call Ellis three or four
times and inquire about buying a pound and a half of marijuana.
Before Ellis arrived around 6 p.m., respondent warned
Kenneth that it was not a good idea to rob Ellis because
something might happen to their house or their family. Kenneth
agreed, but then told respondent that when Ellis arrived, he
should act like he did not know Kenneth and should do everything
that Kenneth told the others to do.
When Ellis came to the house, Kenneth told respondent to
come outside with him and Ellis. Respondent followed the two men
into the backyard. Ten seconds later, Perez arrived. After
Ellis took three plastic baggies filled with marijuana out of a
backpack, Kenneth complained that Ellis had shorted him the last
time. After Perez denied that he had shorted Kenneth earlier,
Kenneth turned his back and looked at the marijuana. He then
turned back toward the men and pulled a gun from his pocket.
Perez tried to run, but Kenneth told him to stay. Kenneth hit
Ellis in the mouth with the gun, then told everyone to get on
ground. When no one got on the ground, Kenneth shot Perez in the
chest. Ellis and Kenneth ran, but respondent stayed to help
Perez. He returned home until the police arrived later that
evening.
After closing arguments, the trial court found respondent
guilty of two counts of aggravated battery and aggravated
discharge of a firearm based on his written statement. The court
found that both Ellis and Perez were not credible witnesses.
After being found delinquent, respondent was sentenced to five
years' probation.
The first issue is whether defendant received ineffective
assistance of counsel because his attorney failed to file a
motion to quash his arrest and suppress evidence or to refile a
motion to suppress his statements.
In order to establish ineffective assistance of counsel, a
defendant generally must prove that his counsel was deficient and
that he was prejudiced by that deficiency. Strickland v.
Washington, 466 U.S. 668, 687, 80 L. Ed. 2d 674, 693, 104 S. Ct. 2052, 2064 (1984); People v. Albanese, 104 Ill. 2d 504, 525, 473 N.E.2d 1246 (1984). To show prejudice, the defendant must
demonstrate that there was a reasonable probability that, but for
counsel's unprofessional errors, the result of the proceeding
would have been different. Strickland, 466 U.S. at 694, 80 L. Ed. 2d at 698, 104 S. Ct. at 2068. A reasonable probability is a
probability sufficient to undermine confidence in the outcome.
Strickland, 466 U.S. at 694, 80 L. Ed. 2d at 698, 104 S. Ct. at
2068. In making a determination of prejudice, the court must
examine the totality of the circumstances. Strickland, 466 U.S.
at 695, 80 L. Ed. 2d at 698, 104 S. Ct. at 2069.
To prevail on a claim that his trial counsel was ineffective
for failing to file a motion to quash arrest or suppress
statements, the defendant must show that there was a reasonable
probability that the motion would have been granted and that the
outcome of the trial would have been different if the arrest had
been quashed or the statements suppressed. People v. Morris, 229
Ill. App. 3d 144, 157, 593 N.E.2d 932 (1992); People v. Bennett,
222 Ill. App. 3d 188, 201, 582 N.E.2d 1370 (1992); People v.
Mendez, 221 Ill. App. 3d 868, 873, 582 N.E.2d 1265 (1991).
Defendant argues that he was arrested without probable cause
and that his statements were involuntary. In determining whether
an arrest has occurred, the court must make an objective
determination whether a reasonable person, innocent of any crime,
would have considered himself or herself arrested or free to
leave. Michigan v. Chesternut, 486 U.S. 567, 573, 100 L. Ed. 2d 565, 572, 108 S. Ct. 1975, 1979 (1988); People v. Holveck, 141 Ill. 2d 84, 95, 565 N.E.2d 919 (1990). The factors to consider
include the time, place, length, mood, and mode of the interro-
gation; the number of police officers present; any indicia of
formal arrest or evidence of restraint; the intention of the
officers; the extent of the officers' knowledge; the focus of the
officers' investigation (People v. Brown, 136 Ill. 2d 116, 124-
25, 554 N.E.2d 216 (1990)); the subjective belief of the detainee
concerning his arrest status (People v. Booker, 209 Ill. App. 3d
384, 393, 568 N.E.2d 211 (1991)); any statement or non-verbal
conduct by the police indicating that the detainee was not free
to leave (People v. Langlo, 153 Ill. App. 3d 636, 641-42, 505 N.E.2d 1338 (1987)); and whether the detainee was told that he
was free to leave or that he was under arrest. Holveck, 141 Ill. 2d at 95; People v. Reynolds, 257 Ill. App. 3d 792, 799 (1994).
The police officer's subjective belief that the detainee was free
to leave is not determinative if it was not communicated to the
defendant. People v. Stofer, 180 Ill. App. 3d 158, 168, 534 N.E.2d 1287 (1989). No one factor is dispositive. A
determination will vary with all of the circumstances surrounding
the detention in each case. Chesternut, 486 U.S. at 572, 100 L. Ed. 2d at 571, 108 S. Ct. at 1978.
Whether or not probable cause for an arrest exists depends
on the totality of the facts and circumstances known to the
officers when the arrest was made. People v. James, 118 Ill. 2d 214, 223, 514 N.E.2d 998 (1987). Probable cause "requires more
than mere suspicion, but it does not require the arresting
officers to have in their hands evidence sufficient to convict
the defendant." In re D.G., 144 Ill. 2d at 409.
For a confession to be admissible at trial, it must be free,
voluntary, and not obtained by any direct or implied promises,
however slight, nor by the exertion of any improper influence.
Malloy v. Hogan, 378 U.S. 1, 12 L. Ed. 2d 653, 84 S. Ct. 1489
(1964); People v. Thomas, 137 Ill. 2d 500, 516, 561 N.E.2d 57
(1990). The test for the voluntariness of a confession is
whether, under the totality of the circumstances, the statement
was made freely, without compulsion or inducement, with con-
sideration given to the characteristics of the accused and the
details of the interrogation. Thomas, 137 Ill. 2d at 516.
Under the Juvenile Court Act (705 ILCS 405/5-6 (West 1992)),
a law enforcement officer who takes a minor into custody shall
immediately make a reasonable attempt to notify the parent and
shall without unnecessary delay take the minor to the nearest
juvenile officer. The purpose of the "notice" requirement is to
permit, where possible, a parent to confer and counsel with the
juvenile before interrogation and confession. People v.
Montanez, 273 Ill. App. 3d 844, 652 N.E.2d 1271 (1995).
Factors to be considered in determining whether the confes-
sion was voluntary include the defendant's age, education, intel-
ligence, experience and physical condition; the length and
intensity of the interrogation; the existence of any threats,
promises, or physical coercion; whether the confession was
induced by police deception; and whether defendant was informed
of his constitutional rights. People v. Martin, 102 Ill. 2d 412,
427, 466 N.E.2d 228 (1984); People v. MacFarland, 228 Ill. App.
3d 107, 117, 592 N.E.2d 471 (1992). When a juvenile's confession
is at issue, additional factors come into play, including the
time of day and the presence of a parent or other adult
interested in the juvenile's welfare. People v. Brown, 235 Ill.
App. 3d 479, 490, 601 N.E.2d 1190 (1992).
Although the presence of a youth officer does not per se
make a juvenile's confession voluntary, it is a significant
factor. In re Lashun H., 284 Ill. App. 3d 545, 557, 672 N.E.2d 331 (1996). The failure to have a juvenile officer present is
material to determining the voluntariness of defendant's
statement. People v. Knox, 186 Ill. App. 3d 808, 815, 542 N.E.2d 910 (1989). The presence or absence of a parent is also a factor
in evaluating the voluntary nature of a confession. Montanez,
273 Ill. App. 3d at 854; In re J.O., 231 Ill. App. 3d 853, 855,
596 N.E.2d 1285 (1992). The relevant inquiry is whether the
absence of an adult interested in the defendant's welfare
contributed to the coercive circumstances surrounding the
interview, not whether contact with a parent was denied. Knox,
186 Ill. App. 3d at 814.
The following cases are helpful in deciding whether the
confession in this case was voluntary. In Montanez, 273 Ill.
App. 3d 844, the confession was involuntary. The court stated:
"'Notice' here must be understood to have
some purpose, namely to allow, where
possible, the concerned adult to confer and
counsel with the juvenile before
interrogation and confession. Yes, an
attempt was made to contact a youth officer
before the statement was taken; but the
interrogation went forward anyway within
minutes. And yes, the parent here was
'notified' but in the same breath she was
told she could not see her child until
called. These circumstances demonstrate the
intended fulfillment of notice here was
simply a charade." Montanez, 273 Ill. App.
3d at 850.
Montanez further held that the failure to have the opportunity to
confer was material in determining the voluntariness of a minor
defendant's statement. 273 Ill. App. 3d at 852.
In In re J.O., 231 Ill. App. 3d 853, the parents of a minor
respondent went to the police station, but did not ask to talk to the
respondent. As a result, they were not taken to see him. Instead,
they waited in the police station lobby while the respondent was being
questioned. The court stated:
"A juvenile's age and the fact that the
interrogation occurred in the middle of the
night may properly be considered in
evaluating the voluntary nature of a
confession. [Citation] Additionally, if
parents have indicated an interest by their
presence, then they should be allowed to
confer with their children before any
questioning occurs. [Citation] The presence
or absence of a parent is a factor in
evaluating the voluntary nature of a
confession under the totality of the
circumstances test. [Citation] Accordingly,
because the trial court's ruling was based on
the totality of the circumstances and the
court considered proper factors in making its
determination, we affirm its granting of the
motion to suppress." In re J.O., 231 Ill.
App. 3d at 855.
In People v. R.B., 232 Ill. App. 3d 583, 597 N.E.2d 879 (1992),
the 15-year-old defendant maintained that his statement was
involuntary. The court explained in deciding the case:
"This court has stated that the failure to
telephone a juvenile's parents, or the
absence of a parent during questioning, is a
factor in determining voluntariness, but is
not determinative of whether defendant's
confession should be suppressed. [Citation]
However, where the State failed to take
appropriate steps to ensure that a juvenile
defendant had an opportunity to confer with
an interested adult, either a parent or a
youth officer, this court has held that the
police conduct rendered his confession
inadmissible. [Citation] R.B., 232 Ill.
App. 3d at 593.
The court then held that the confession was involuntary.
In this case, the totality of the circumstances suggests that
respondent was arrested after he gave an oral confession, which was
likely involuntary since no adult interested in his welfare was
present. There was no parent present and the police did not contact a
youth officer until after respondent gave his confession. This case
is similar to the recent case of People v. Fuller, 292 Ill. App. 3d
651, 686 N.E 2d 6 (1997), in which this court ruled that the minor
defendant's first confession was involuntary because it was given
without a parent present and before the police contacted a youth
officer.
It is disturbing that respondent was questioned without an
interested adult being present and before the police even contacted
the youth officer. Receiving an incriminating statement by a juvenile
in the absence of counsel is a sensitive concern requiring great care
to assure that the juvenile's confession was neither coerced,
suggested, nor the product of fright or despair. People v. Prude, 66 Ill. 2d 470, 476, 363 N.E.2d 371 (1977). As a result, courts
scrutinize custodial statements by juvenile suspects with particular
care, given that the potential for coercion is enhanced. Brown, 235
Ill. App. 3d at 490.
We do not know if the police asked respondent's step-father to
come to the police station or contacted his biological parents before
questioning him. We do know, however, that his biological father
arrived after he gave his oral confession and that the youth officer
was not contacted until after he had given that confession. While the
absence of a parent or youth officer does not per se make a juvenile's
confession involuntary, the police must make every reasonable effort
to have a parent, youth officer, or other interested adult present
before they question a juvenile.
Nevertheless, we do not have to decide whether the arrest was
illegal or the confession involuntary. The issue in this case is
whether respondent received ineffective assistance of counsel because
his attorney failed to challenge the legality of the arrest or
voluntariness of his confession. Based on the foregoing, we find that
there was enough evidence to suggest that there was a reasonable
probability that, but for counsel's unprofessional errors, the result
of the proceeding would have been different. Strickland, 466 U.S. at
694, 80 L. Ed. 2d at 698, 104 S. Ct. at 2068.
Because we conclude that respondent received ineffective
assistance of counsel, we are vacating his conviction and remanding
this cause to the circuit court for a hearing on his motion to quash
arrest and suppress statements. If the circuit court grants the
motion, a new trial is ordered. If, however, the circuit court denies
the motion, the conviction is affirmed.
In light of that decision, double jeopardy requires that we
address respondent's challenge to the sufficiency of the evidence.
People v. Digirolamo, 179 Ill. 2d 24, 42, 688 N.E.2d 116 (1997).
Based on the evidence, particularly respondent's confession, we
find that there was sufficient evidence to convict him of aggravated
battery and aggravated discharge of a firearm. A defendant is
accountable for acts performed by another if he shared a common
criminal plan or purpose. People v. Taylor, 164 Ill. 2d 131, 140-41,
646 N.E.2d 567 (1995). The common-design rule provides that where two
or more persons engage in a common criminal design or agreement, any
acts in the furtherance of that common design committed by one party
are considered to be the acts of all parties to the design or
agreement and all are equally responsible for the consequences of the
further acts. In re W.C., 167 Ill. 2d 307, 337, 657 N.E.2d 908
(1995). The common design can be inferred from the circumstances
surrounding the commission of the unlawful conduct. Taylor, 164 Ill. 2d at 141. Proof of the common purpose or design need not be
supported by words of agreement, but may be drawn from the
circumstances surrounding the commission of the unlawful conduct.
People v. Furby, 138 Ill. 2d 434, 456, 563 N.E.2d 421 (1990); People
v. Reid, 136 Ill. 2d 27, 61, 62, 554 N.E.2d 174 (1990). Evidence that
a defendant voluntarily attached himself to a group bent on illegal
acts with the knowledge of its design supports an inference that he
shared the common purpose and will sustain his conviction for an
offense committed by another. In re W.C., 167 Ill. 2d at 338; Taylor,
164 Ill. 2d at 141. Accountability may be established through a
person's knowledge of and participation in the criminal scheme, even
though there is no evidence that he directly participated in the
criminal act itself. In re W.C., 167 Ill. 2d at 338.
Because we conclude that respondent received ineffective
assistance of counsel, we are vacating his conviction and remanding
this cause to the circuit court for a hearing on his motion to quash
arrest and suppress statements. If the circuit court grants the
motion, a new trial is ordered. If, however, the circuit denies the
motion, the conviction is affirmed.
Vacated and remanded with instructions.
McNamara, J., and Burke, J., concur.
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