FIRST DIVISION June 16, 2008
No. 1-06-0010
) Circuit Court of In re Dante W., a Minor ) Cook County. (The People of the State of Illinois, ) Petitioner-Appellee, v. Dante W., ) No. 03 JD 4804 Respondent-Appellant). ) ) The Honorable ) Rodney Hughes Brooks, ) Judge Presiding.
JUSTICE GARCIA delivered the opinion of the court.
After a jury trial, the respondent, Dante W., was
adjudicated delinquent based on the commission of first degree
murder and aggravated vehicular hijacking. The respondent now
appeals alleging ineffective assistance of counsel and that the
trial court erred when it denied his motion to suppress
statements. For the reasons that follow, we affirm.
BACKGROUND
On January 11, 2003, Jimmy Patton was shot and killed in
Garfield Park. His car was also stolen. After arresting Joshua
Council,1 Chicago police detectives began looking for Robert
Hughes, Antonio Woodson, and the respondent. The respondent was
15 years old when he was arrested on September 22, 2003. The
State filed a petition for adjudication of wardship against the
1 Joshua Council's surname is given various spellings in the record. No. 1-06-0010
respondent for knowing and intentional murder, murder during the
course of a felony, and aggravated vehicular hijacking. The
trial court found extended juvenile jurisdiction warranted. The
matter proceeded to trial in January 2005.
I. Motion to Suppress Statements
Before trial, the respondent filed a "'Re-Corrected' Motion
to Suppress Video Statements," alleging "because of his mental,
educational, emotional and/or psychological capacity" the
respondent was unable to understand his Miranda rights. The
hearing on the respondent's motion to suppress commenced on
August 26, 2004, continued from date to date, and concluded on
December 21, 2004.
The State presented testimony from Chicago police detectives
Greg Swiderek and John Roberts, youth officer Ayanna Parsons, and
Assistant State's Attorney (ASA) Caren Armbrust, all of whom who
were present with the respondent at various times at the police
station. The respondent and his mother, Cherisse W., testified
in the respondent's case.2
Following the respondent's arrest on September 22, 2003, he
was transported to Area 4 and placed in an interview room.
At 4:30 p.m., when Detective Swiderek arrived for his shift,
he was told by Officer Harry Matheos that the respondent had been
2 The respondent's mother's first name is given various
spellings in the record.
2 No. 1-06-0010
arrested. Because the respondent was a minor, Detective Swiderek
told Officer Matheos to notify the respondent's parents. Officer
Matheos went to the respondent's address, but no one was home.
At 5:20 p.m., Detective Swiderek and his partner, Detective
Roberts, spoke to the respondent for the first time when the
respondent knocked on the door of the interview room and asked
why he was there. The detectives told the respondent they were
investigating the death of a man and the theft of his car on
January 11, in Garfield Park. The respondent said he was there,
but did not kill the man. Swiderek told the respondent they
could not speak with him without a parent or guardian present.
The respondent gave detectives his grandmother's phone number.
At 6:30 p.m., Detective Roberts spoke with the respondent's
grandfather. Roberts asked him to come to Area 4, because the
respondent was under arrest for murder. The respondent's
grandfather agreed to come and spoke by phone with the
respondent. The grandfather called back to tell Roberts he would
not be coming because he was not the respondent's legal guardian.
He gave Roberts the phone number of the respondent's mother.
Detective Roberts called the respondent's mother. She told
him she was not coming to Area 4 and hung up. Roberts called
back and left a message. Roberts then left a message with the
respondent's grandparents.
At 7:30 p.m., Detective Swiderek took the respondent to an
3 No. 1-06-0010
interview room used to videotape statements and introduced him to
youth officer Parsons. Swiderek told the respondent that Parsons
was there to protect his rights and asked the respondent if he
understood. The respondent said he did. Swiderek then left the
room.
When she was alone with the respondent, Parsons asked him
about his "well being." The respondent told her he was fine, he
had been given a drink, and he did not have to go to the
bathroom. After speaking with the respondent, Parsons attempted
to contact his family, but was unsuccessful.
When Detective Swiderek returned, he told the respondent
that he was under arrest for the murder of Jimmy Patton and
advised the respondent of his Miranda rights. After each right,
Swiderek asked the respondent if he understood that right and the
respondent answered that he did. The respondent was able to
explain to Swiderek what each Miranda right meant. Swiderek also
asked the respondent if he understood that he could be charged as
an adult. The respondent answered that he did.
Detective Swiderek then had a conversation with the
respondent regarding the events of January 11. The respondent
"appeared fine" during the conversation. The respondent "spoke
intelligently and was able to explain his actions." After
speaking with the respondent, Swiderek contacted the State's
Attorney's office.
4 No. 1-06-0010
While Detective Swiderek spoke to the respondent, Detective
Roberts continued in his attempts to contact the respondent's
parents or a guardian. Roberts phoned the Broadview police
department and asked that a squad car be sent to the respondent's
mother's house. Broadview police officers left a note with
Roberts' contact information at her house. Roberts called the
respondent's grandfather and left a message. Roberts also left a
message on the respondent's grandmother's cell phone.
At 8 p.m., ASA Armbrust arrived at Area 4. Before speaking
with the respondent, she met with detectives, reviewed police
reports, and watched the videotaped statements of "other
offenders who had previously been charged."
At 10 p.m., Armbrust met with the respondent. Detective
Swiderek and youth officer Parsons were also present. Armbrust
believed Parsons was in the room because the respondent's family
"either [was] unwilling [to come to Area 4] or there was no
answer at the houses."
Armbrust introduced herself as an assistant State's
Attorney. She told the respondent that she was not his attorney.
Armbrust then informed the respondent of his Miranda rights.
After each right she asked the respondent if he understood that
right and he said he did. Armbrust then asked the respondent to
explain each right to her. The respondent explained each right
in his own words.
5 No. 1-06-0010
After the respondent told Armbrust about the events of
January 11, Armbrust presented him with choices regarding how to
memorialize his statement. The respondent chose to videotape his
statement. Armbrust read the "Consent to Videotape Statement" to
the respondent and asked if he still wanted to give a statement.
The respondent indicated he did and signed the consent form.
Armbrust, Swiderek, and Parsons also signed the form.
While Swiderek and Armbrust spoke to the respondent, Roberts
continued his efforts to contact the respondent's family. He
requested a squad car be sent to the respondent's grandparents'
home. He also spoke to the respondent's great-grandmother,
Augusta W., and grandmother, Betty Jackson.
At 12:20 a.m., the respondent's mother and grandmother
arrived at Area 4. Swiderek, Roberts, and Parsons explained that
the respondent was under arrest for murder, that he had chosen to
give a videotaped statement, and that it was important a family
member sit with the respondent while he made the statement.
Neither woman wished to sit with the respondent.
After both women had spoken to the respondent, they still
declined to sit with him while he made a statement. Swiderek
asked the respondent whom he wanted to sit with him. The
respondent chose his grandmother. When Jackson was told the
respondent wanted her to sit with him while he made his
statement, she agreed and signed the "Consent to Videotape
6 No. 1-06-0010
Statement" form.
The respondent's videotaped statement was taken at
approximately 1:26 a.m. Armbrust, Swiderek, and the respondent's
grandmother were present. Before the respondent gave his
statement, he was again advised of his Miranda rights. The
respondent was asked to repeat in his own words what the "Miranda
Warnings" meant to him. Armbrust also asked the respondent if he
had been threatened or promised anything in exchange for his
statement. He denied he was.
The respondent never said he did not want to give a video
statement and never asked for an attorney. His mother and
grandmother never stated they did not want the respondent to give
a videotaped statement and never asked for an attorney for the
respondent.
Before resting, the State sought leave to play the
videotaped statement so the court could see the respondent's
"demeanor" while he was making the statement. The respondent's
counsel objected. The court denied the motion.
The State rested. The respondent moved for a "directed
verdict." The trial court denied the motion.
The respondent testified that following his arrest, he was
placed in an interview room. Two detectives entered the room,
introduced themselves, and asked the respondent about January 11.
The respondent told them he was at home. The detectives
7 No. 1-06-0010
questioned the respondent for 30 minutes. They returned 20
minutes later and asked the same questions. The respondent again
said he was at home. The second interview lasted for 10 minutes.
The detectives then took the respondent to another room
where he watched the videotaped statement of Antonio Woodson, in
which Woodson described the events of January 11. The respondent
testified one of the detectives, he did not remember which one,
promised him that if he "was to make [a] tape, [he] wasn't going
to be charged." The respondent was told that putting his version
of events on tape would be his "best bet" to avoid being charged.
Before making his statement, the respondent was informed of
his "rights" for the first time by youth officer Parsons. The
respondent also spoke to his mother and grandmother.
During direct examination, the respondent testified
regarding his understanding of his Miranda rights during
questioning by ASA Armbrust.
"Q. *** And when she asked you
these rights, did you understand each
and every right as she asked them?
A. Some of them. Not all of them.
I had--I told her to repeat them, to
explain them to me.
During cross-examination, the respondent testified the
detectives also read him Miranda rights and he indicated that he
8 No. 1-06-0010
understood each right. The respondent testified he understood
the Miranda rights when Swiderek read them and when he repeated
them back to ASA Armbrust. However, on redirect, the respondent
testified he did not understand his Miranda rights and only said
he did to end the interview and get home quicker.
On re-cross-examination, the respondent testified that both
detectives promised he would not be charged if he made a
statement, but he did not tell anyone about the promise. On
re-redirect, the respondent testified that no one ever asked him
about any promises being made in exchange for the statement and
that he never signed anything verifying the transcription of the
videotaped statement was true and accurate.
After the respondent's testimony, the State renewed its
"Motion to Reconsider Exclusion of the Minor's Videotaped
Confession." The State wished to play the portions of the
statement during which ASA Armbrust told the respondent that she
was a lawyer, but not his lawyer, and when she asked if he had
been promised anything in exchange for his statement. The court
denied the motion.
The State called ASA Armbrust in rebuttal. Armbrust
testified she told the respondent she was an assistant State's
Attorney and never told him that she was his attorney. She never
told the respondent that he would not be charged if he made a
statement. Armbrust asked the respondent if he had been promised
9 No. 1-06-0010
anything in exchange for his statement and he said no.
Detective Swiderek was also recalled. He denied promising
not to charge the respondent if he made a statement.
The respondent testified in surrebuttal. The respondent
testified that Detective Roberts came into the interview room and
told him that if "I tell him what happened during that day, I
wasn't going to be charged." The respondent described Roberts as
"about six, six something, six-something feet; white, white guy;
he had a suit on." The respondent did not know Roberts' age, but
described him as having "light gray, light brown hair."
The respondent's mother, Cherisse W., also testified in
surrebuttal. On September 22, Detective Roberts called Cherisse
W. between 10:30 p.m. and 11 p.m. to tell her the respondent was
in custody because of a stolen car. When she arrived at Area 4,
Roberts told her the respondent was under arrest for murder.
Roberts told her that "if [the respondent] put his testimony on
tape, it [would] be in his best interest to tell his side of the
story, and nine times out of ten he would not be charged."
Roberts told her the respondent would "not be charged *** because
they had the shooter."
Cherisse W. told the detectives it was up to the respondent
to decide whether to make a videotaped statement, but she would
not have agreed to it. The respondent told her he was making a
videotaped statement because Roberts said it would be in his best
10 No. 1-06-0010
interest to do so.
Detective Roberts testified that his only contact with the
respondent was when the respondent knocked on the door of the
interview room and asked Roberts and Swiderek why he was there.
Roberts denied promising not to charge the respondent if he made
a videotaped statement. He did not tell the respondent's mother
that it would be in the respondent's best interest to make a
videotaped statement.
The court denied the motion to suppress. The court found
"under the totality of the circumstances," the respondent and his
witness were not credible. The court found "the Miranda warnings
were properly given[,] that the minor understood the warnings[,]
that the minor waived the warnings[,] that the waiver was
knowing[,] that the waiver was intelligent[, and] that the waiver
was a voluntary waiver."
II. Trial
In his opening statement before the jury, the respondent's
counsel admitted the respondent went to the park "looking for a
car to steal." Though the respondent "was physically present
when the fatal act occurred," the respondent had no idea that a
gun was involved until it was "whipped" out. Counsel asked the
jury to find the respondent not guilty because the "true
perpetrators" had already been caught and punished.
The State presented the testimony of Steve Banks. On
11 No. 1-06-0010
January 11, Banks, the victim, and J.C. Parker were drinking in
Parker's car when they were approached by three men. One man
asked for a light. The victim exited Parker's car and walked to
his car. As he attempted to unlock the door, two of the men
grabbed the key and the third man pulled out a gun. Banks and
Parker drove away to notify the police. When they returned, the
victim was face-up on the sidewalk with a visible gunshot wound
to the chest.
Detective John Roberts testified that in the course of the
investigation into the victim's death, a lead developed which
pushed Roberts in the direction of Joshua Council.
On September 5, 2003, Roberts interviewed Council. After
the interview, Roberts began to look for Robert Hughes,
"Antonio," and the respondent. Hughes was arrested a few days
later. While interviewing Hughes, Roberts learned Antonio's last
name was Woodson. Woodson was arrested that day. Roberts issued
an investigative alert for the respondent after he was unable to
find the respondent at his home.
Roberts testified about the arrest of the respondent and his
attempts to locate the respondent's mother. His testimony was
substantially similar to that given at the suppression hearing.
He again denied promising not to charge the respondent if he made
a videotaped statement.
Detective Greg Swiderek testified as he did at the
12 No. 1-06-0010
suppression hearing. The respondent told Swiderek that on
January 11, he was at a party at Hughes' house with Council and
Woodson. Council wanted to steal a car "to get some rims for his
brother's car." Council asked the respondent to come along and
to keep an eye out for the police. As they walked to Garfield
Park, Council told the respondent that Woodson had a gun.
When they arrived at the park, there was a gold car with the
engine running and a red car with people sitting in it. Council
walked up to the red car and told the occupants that the gold car
belonged to his grandfather. He asked the occupants of the red
car where his grandfather was. To clear up Council's questions
about the ownership of the gold car, the victim exited the red
car. While the victim walked to the gold car, Council asked him
for a cigarette. Woodson then walked up to the victim and fired,
but nothing happened. Woodson fired again and the victim fell to
the ground. Hughes, Woodson, Council, and the respondent got
into the gold car and drove away.
Swiderek denied showing the respondent the videotaped
statements of Hughes, Woodson, and Council. Swiderek also denied
that Roberts promised not to charge the respondent if he made a
statement.
Assistant State's Attorney Caren Armbrust's testimony was
consistent with her testimony at the suppression hearing. During
13 No. 1-06-0010
her testimony, the respondent's videotaped statement was played.3
At the beginning of the videotape, Armbrust read the respondent
his Miranda rights and gave a "short summary" of the statement.
The respondent's videotaped statement was consistent with his
statement to Swiderek.
The State rested. The respondent's counsel moved for a
"judgment of acquittal." The trial court denied the motion.
The respondent presented the testimony of his mother.
Cherisse W. testified the respondent had been diagnosed with
"Attention Deficit Disorder" and was in special education classes
at school. Cherisse W. testified that when she spoke to
Detective Roberts on the phone following the respondent's arrest,
he told her the respondent was in custody because of a stolen
car. When she arrived at Area 4, she learned the respondent was
under arrest for murder. Roberts told her he had advised the
respondent to "put his version on the table." Roberts also
"stressed at that point that [the respondent] would not be
charged because they had the shooter." Cherisse W. was allowed
to see the respondent, but was not left alone with him. She
thought he looked scared. The respondent told her Roberts had
promised not to charge him if he agreed to give a statement on
tape. Cherisse W. did not request an attorney for the respondent
3 The actual videotape is not in the record; only a
transcript of the videotaped statement has been provided.
14 No. 1-06-0010
because he was not going to be charged.
Betty Jackson, the respondent's grandmother, testified that
her daughter called her around 11 p.m. and said the respondent
was under arrest because of a car. When they arrived at Area 4,
Roberts told them the respondent was under arrest for murder.
Roberts also said it was in the respondent's best interest to put
"his version of what happened on tape" because Woodson, Council,
and Hughes had made videotaped statements. Roberts promised the
respondent would not be charged if he made a statement.
When Jackson saw the respondent, he was "sitting *** all
crunched up, biting on his sweater" and appeared to have been
crying. When Jackson asked the respondent if he was sure he
wanted to make a statement, he told her he had seen the other
statements and wanted to put his version on tape. She did not
ask for an attorney for the respondent because he was not going
to be charged.
The respondent rested after Jackson's testimony.
The State called Roberts in rebuttal. Roberts denied
promising not to charge the respondent if he made a statement.
Before closing statements, the trial court held a jury
instruction conference. The State presented instructions from
the Illinois Pattern Jury Instructions (IPI). The respondent's
counsel presented non-IPI instructions that attempted to define
what accountability was not. The State objected to several of
15 No. 1-06-0010
the defense instructions. The court sustained the objections.
In its closing argument, the State reminded the jury that
under accountability, because the respondent participated in a
felony that led to a death, he was responsible for that death
even if he did not fire the gun.
In his closing argument, the respondent's counsel admitted
the respondent intended to steal a car the night of January 11,
"there is no way of getting around it. *** We are not trying to
suggest you overlook that, that was wrong, we offer no excuse for
that. But just as that's an improper motive, it does not make
[the respondent] accountable and responsible for murder."
The respondent's counsel admitted the respondent "had
knowledge of an offense. *** What he didn't have was the level
of participation in that offense." Counsel conveyed to the jury
that the respondent should not be held responsible for the
victim's death; he should be found not guilty of first degree
murder.
During its deliberations, the jury sent out a note asking,
"[i]f we find guilty on vehicular hijacking, do we have an option
to find [the respondent] not guilty on first degree murder?" To
answer the question, the court reread to the jury IPI, Criminal,
4th, No. 7.02X, "Explanation To Jury That It May Not Find
Defendant Guilty of Felony Murder and Not Guilty of Underlying
16 No. 1-06-0010
Felony."4 Illinois Pattern Jury Instructions, Criminal, No.
7.02X (4th ed. 2000).
The jury found the respondent guilty of first degree murder
and aggravated vehicular hijacking.
The respondent's counsel filed a motion for a new trial.
After oral argument, the trial court denied the motion.
The court sentenced the respondent to the custody of the
Illinois Department of Corrections, Juvenile Division, until his
twenty-first birthday. The court also sentenced the respondent
to a stayed adult sentence of 25 years. This additional 25-year
sentence would be imposed if the respondent violates his juvenile
sentence. This timely appeal followed.
ANALYSIS
The respondent contends his trial counsel was ineffective
because he had a "fundamental misapprehension of the law, and, as
a result, repeatedly conceded [the respondent's] guilt to the
jury and failed to subject the State's case to meaningful
adversarial testing." The respondent also contends the trial
4 We question how the instruction gave any guidance to the
jury in light of the question asked. The jury's question
concerned the inverse situation to that of the jury instruction:
whether it could find the respondent guilty of the underlying
felony and not guilty of felony murder. However, no issue is
raised regarding the propriety of the instruction.
17 No. 1-06-0010
court erred when it denied his motion to suppress statements.
I. Assistance of Counsel
A defendant alleging ineffective assistance of counsel must
establish (1) the attorney's performance fell below an objective
standard of reasonableness, and (2) this deficient performance
prejudiced the defendant. Strickland v. Washington, 466 U.S.
668, 687-88, 80 L. Ed. 2d 674, 693, 104 S. Ct. 2052, 2064 (1984);
People v. Albanese, 104 Ill. 2d 504, 526, 473 N.E.2d 1246 (1984).
A defendant's failure to satisfy either prong of the Strickland
test defeats a claim of ineffective assistance of counsel.
Strickland, 466 U.S. at 687, 80 L. Ed. 2d at 693, 104 S. Ct. at
2064.
When reviewing an attorney's performance, this court "must
indulge a strong presumption that counsel's conduct falls within
the wide range of reasonable professional assistance; that is,
the defendant must overcome the presumption that, under the
circumstances, the challenged action 'might be considered sound
trial strategy.'" Strickland, 466 U.S. at 689, 80 L. Ed. 2d at
694-95, 104 S. Ct. at 2065, quoting Michel v. Louisiana, 350 U.S.
91, 101, 100 L. Ed. 83, 93, 76 S. Ct. 158, 164 (1955).
"Generally, matters of trial strategy will not support a claim of
ineffective assistance of counsel unless counsel failed to
conduct any meaningful adversarial testing." People v.
Patterson, 217 Ill. 2d 407, 441, 841 N.E.2d 889 (2005).
18 No. 1-06-0010
To show prejudice "[t]he defendant must show that there is 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" of the proceeding.
Strickland, 466 U.S. at 694, 80 L. Ed. 2d at 698, 104 S. Ct. at
2068.
The Strickland Court also noted that there are some
circumstances "where prejudice is presumed." Strickland, 466
U.S. at 692, 80 L. Ed. 2d at 696, 104 S. Ct. at 2067. In United
States v. Cronic, 466 U.S. 648, 656-57, 80 L. Ed. 2d 657, 666,
104 S. Ct. 2039, 2045-46 (1984), the Supreme Court explained
"[t]he right to the effective assistance of counsel is thus the
right of the accused to require the prosecution's case to survive
the crucible of meaningful adversarial testing. *** But if the
process loses its character as a confrontation between
adversaries, the constitutional guarantee is violated." Cronic,
466 U.S. at 656-57, 80 L. Ed. 2d at 666, 104 S. Ct. at 2045-46.
Our supreme court adopted this principle in People v. Hattery,
109 Ill. 2d 449, 464-65, 488 N.E.2d 513 (1985).
In Hattery, the defendant was charged with murder and
entered a not guilty plea. At trial, the defendant's counsel
admitted the defendant's guilt in his opening statement.
19 No. 1-06-0010
"'We are not asking you to find
Charles Hattery not guilty. At the end
of your deliberations, you will find him
guilty of murder. We are asking you to
consider the evidence that you hear
today and in the next few days to
explain why he did the horrible thing
that he did. Once you have found him
guilty, we will proceed and you will
find him eligible for the death penalty.
The question, and the only question
facing you, will be whether to impose
the death penalty on Charles Hattery.'"
(Emphasis omitted.) Hattery, 109 Ill.
2d at 458-59.
Defense counsel did not present any evidence and did not make a
closing statement; instead, counsel cross-examined the State's
witnesses in an attempt to show the defendant was compelled to
commit the crime. While compulsion is not a defense to murder,
it can be "a mitigating circumstance sufficient to preclude the
imposition of the death penalty." Hattery, 109 Ill. 2d at 459.
The court did not analyze Hattery's ineffective assistance
of counsel claim pursuant to Strickland. Instead, the court
relied on Cronic, 466 U.S. at 659, 80 L. Ed. 2d at 668, 104 S.
20 No. 1-06-0010
Ct. at 2047, for the proposition that when "counsel entirely
fails to subject the prosecution's case to meaningful adversarial
testing, then there has been a denial of Sixth Amendment rights
that makes the adversar[ial] process itself presumptively
unreliable."
The court found Hattery's trial counsel did not subject the
State's case to meaningful adversarial testing. "The concession
of defendant's guilt by his attorneys was unequivocal." Hattery,
109 Ill. 2d at 464. Trial counsel's "strategy--which attempted
to show that defendant was guilty of murder but undeserving of
the death penalty--was totally at odds with defendant's earlier
plea of not guilty." Hattery, 109 Ill. 2d at 464. The comments
regarding the defendant's guilt "impressed upon the jury the
false notion that the guilt or innocence of the defendant was not
at issue, but, rather, had already been decided." Hattery, 109
Ill. 2d at 464. Thus, Hattery's counsel was ineffective because
his "actions deprived defendant of the right of having the issue
of his guilt or innocence presented to the jury as an adversarial
issue." Hattery, 109 Ill. 2d at 464.
In this case, the respondent advocates for the application
of the Cronic presumption of prejudice because he contends his
counsel conceded his guilt during opening statements.
However, "[t]he rule in Hattery must be narrowly construed."
People v. Johnson, 128 Ill. 2d 253, 269, 538 N.E.2d 1118 (1989).
21 No. 1-06-0010
It is not per se ineffective assistance of counsel when a
defendant's attorney "concedes his client's guilt to offenses in
which there [was] overwhelming evidence of that guilt." Johnson,
128 Ill. 2d at 269. "In situations where there is overwhelming
evidence of guilt and no defense, if counsel contests all charges
he is liable to lose credibility with the trier of fact when it
comes to charges where a legitimate defense exists." Johnson,
128 Ill. 2d at 270. If defense counsel concedes the defendant's
guilt, "ineffectiveness may be established; however, the
defendant faces a high burden before he can forsake the two-part
Strickland test." Johnson, 128 Ill. 2d at 269-70.
The respondent relies on People v. Chandler, 129 Ill. 2d
233, 245-46, 543 N.E.2d 1290 (1989), to support his contention
his ineffective assistance of counsel claim meets that burden.
In Chandler, the defendant was charged with murder,
residential burglary, and arson. The defendant admitted to
police he was in the victim's home, but denied killing the
victim. At trial, the defense did not present any witnesses,
even though defense counsel's opening statement told the jury the
defendant was going to testify. In his closing argument, defense
counsel admitted the defendant entered the victim's house, but he
did not stab the victim. "He concluded, 'I don't think if you
take a realistic view of this that you can find defendant guilty
of murder.'" Chandler, 129 Ill. 2d at 239.
22 No. 1-06-0010
On appeal, the defendant argued he was "denied his sixth
amendment right to effective assistance of counsel when his trial
attorney conceded defendant's guilt at trial." Chandler, 129
Ill. 2d at 241. The defendant, relying on Hattery, argued that
his trial counsel's actions did not subject the State's case to
meaningful adversarial testing.
Our supreme court disagreed, finding "counsel's remarks did
not completely and unequivocally concede defendant's guilt."
Chandler, 129 Ill. 2d at 245. Unlike the defense counsel in
Hattery, Chandler's counsel "vigorously argued that the jury
should believe everything [the] defendant told the police,
including defendant's denial of killing the victim, and did not
concede any fact to which defendant did not admit in his
statements to the police." Chandler, 129 Ill. 2d at 245-46. The
court "[did] not believe that counsel's statements, standing
alone, warrant forsaking the Strickland test under the Hattery
analysis." Chandler, 129 Ill. 2d at 246.
Though the court ultimately found Chandler's counsel was
ineffective, it did so under Strickland, not Cronic. Thus,
Chandler provides no direct support for the respondent's
contention that Cronic should be applied here.
Our supreme court further explained its holding in Chandler
in People v. Shatner, 174 Ill. 2d 133, 147-48, 673 N.E.2d 258
(1996). In Shatner, the defendant was convicted of first degree
23 No. 1-06-0010
murder, armed robbery, and arson. The defendant appealed,
alleging his counsel was ineffective for failing to present a
defense to the charge of felony murder. Defense counsel told the
jury in his closing statement "'if he's guilty of anything, he's
guilty of robbery.'" Shatner, 174 Ill. 2d at 143. Shatner
contended his counsel's defense strategy was "analogous" to the
strategy used in Hattery, because defense counsel admitted to
felony murder by conceding the defendant took part in a robbery
during which the victim was killed. Shatner, 174 Ill. 2d at 145.
The court did not agree. The Shatner court examined the
record and found the defendant's counsel was his advocate
throughout the proceedings. Thus, the court declined the
defendant's "invitation to discard the two-prong Strickland test
in reviewing his ineffective assistance claim." Shatner, 174
Ill. 2d at 146. Accordingly, the court examined whether defense
counsel's performance fell below an objective standard of
reasonableness by comparing Shatner's trial counsel's performance
to that of trial counsel in Chandler.
In Shatner, as in Chandler, "defense counsel did not
vigorously challenge the prosecution's claim that defendant
participated in the robbery of the victim." Shatner, 174 Ill. 2d
at 147. However, the court found Chandler did "not mandate a
finding of ineffective assistance of counsel" because the
"court's finding of ineffective assistance did not rest
24 No. 1-06-0010
exclusively on Chandler's counsel's alleged failure to develop a
theory of innocence." Shatner, 174 Ill. 2d at 147. Chandler's
counsel was "deficient because he failed to cross-examine several
key prosecution witnesses; cross-examined others in an extremely
conclusory manner; and called no witnesses to testify." Shatner,
174 Ill. 2d at 147.
On the other hand, Shatner's counsel cross-examined the
State's witnesses, presented defense witnesses, and pursued a
trial strategy that sought to "minimize his client's admitted
involvement in the robbery" by shifting the blame to someone
else. Shatner, 174 Ill. 2d at 148. Shatner's "counsel sought to
convince the jury that defendant's minimal involvement in the
scheme warranted either a finding of innocence or a conviction
for robbery only." Shatner, 174 Ill. 2d at 148. Though this
strategy was "risky," it was "perhaps the only strategy which
could have been seriously pursued given defendant's admissible
incriminating statements." Shatner, 174 Ill. 2d at 148.
"Ultimately, it was the defendant's own
statements, *** and not the actions or
strategy of his counsel, which
undermined any claim of innocence that
defendant may have had. If a defendant
enters a not-guilty plea in the face of
overwhelming evidence of his guilt, we
25 No. 1-06-0010
are unwilling to find that his counsel
was ineffective simply because he failed
to contrive a leak-proof theory of
innocence on defendant's behalf. To do
so would effectively require defense
attorneys to engage in fabrication or
subterfuge." Shatner, 174 Ill. 2d at
148.
Here, as in Chandler and Shatner, the respondent has not met
the high burden necessary to forsake the Strickland test. Though
the respondent contends the State's case was not subjected to
meaningful adversarial testing because his trial counsel
"repeatedly conceded [his] guilt to the jury," the record does
not support the assertion that the respondent's trial counsel's
performance was equivalent to counsel's performance in Hattery.
The respondent's counsel did not admit anything more than the
facts of the respondent's statement to the police. He never told
the jury the respondent was guilty of murder. In fact, he asked
the jury to find the respondent not guilty because the "true
perpetrators" of the murder had been arrested.
The respondent's counsel vigorously advocated for the
respondent before, during, and after trial. Pretrial, the
respondent's counsel moved to quash the respondent's arrest and
to suppress the respondent's statements. At trial, counsel gave
26 No. 1-06-0010
opening and closing statements, cross-examined the majority of
the State's witnesses, presented defense witnesses, and objected
often. Posttrial, counsel filed a motion for a new trial
alleging various trial errors.
The respondent's trial did not approach the "adversarial
breakdown of the Hattery proceedings, where defense counsel acted
not as an advocate for the accused, but as a proponent for the
prosecution." Shatner, 174 Ill. 2d at 146. Thus, we decline to
review the respondent's ineffective assistance of counsel claim
pursuant to Cronic. We will review the claim pursuant to the
two-prong Strickland test.
The respondent argues his trial counsel's performance was
ineffective, because, as in Chandler, a "misapprehension" of the
law led the respondent's counsel to admit the respondent
participated in a felony during which the victim was killed.
"However, *** the determination in Chandler that counsel was
ineffective was not based simply on counsel's apparent failure to
comprehend the law of accountability. [Citations.] Rather, ***
counsel's misapprehension of accountability had infected the
entire conduct of the trial." People v. Williams, 192 Ill. 2d
548, 568, 736 N.E.2d 1001 (2000).
This case is more analogous to Shatner than to Chandler.
Here, the respondent's counsel did not dispute the respondent's
participation in the plan to steal a car or that an accomplice
27 No. 1-06-0010
actually killed the victim. Rather, counsel admitted to the
contents of the videotaped statement and nothing more. Counsel's
strategy was apparently to try to convince the jury that though
the respondent went to the park to steal a car, his mere presence
when the victim was shot was not enough to hold him accountable
for the victim's death. See People v. Perez, 189 Ill. 2d 254,
268, 725 N.E.2d 1258 (2000) ("presence at the commission of the
crime, even when joined with flight from the crime or knowledge
of its commission, is not sufficient to establish
accountability"). In fact, counsel argued the respondent had no
idea a gun was involved until it was "whipped" out and submitted
jury instructions attempting to define what actions do not make
one accountable for the actions of another.
Here, as in Shatner, the proceedings did not lack an
adversarial character. The respondent's counsel cross-examined
the State's witnesses, presented defense witnesses, moved to
suppress the respondent's videotaped statement during pretrial
proceedings, and objected often during trial. Though the
respondent contends his trial counsel conceded the respondent's
guilt "long before the evidence could have seemed overwhelming,"
the respondent's counsel knew the respondent's videotaped
statement was going to be shown to the jury. Instead of
advancing a theory of complete innocence that would be rebutted
by the video, counsel admitted to the respondent's knowledge of
28 No. 1-06-0010
the plan to steal a car to contrast the respondent's lack of
knowledge when it came to the homicide.
Respondent's counsel also attempted to cast doubt on the
legitimacy of the respondent's videotaped statement by examining
the detectives and the assistant State's Attorney regarding
attempts to contact the respondent's parents or guardians and an
alleged promise not to charge the respondent if he made a
As in Shatner, it was the respondent's "own statements ***
which undermined any claim of innocence" the respondent's counsel
might have advanced. Shatner, 174 Ill. 2d at 148. Had the
respondent's counsel argued the respondent was innocent of all
charges, he would have lost credibility with the jury when the
respondent's videotaped statement was played. Instead, the
respondent's counsel admitted to the truth of the statement,
argued the respondent should not be held accountable for a murder
in which he did not participate, and repeatedly asked the jury to
find the respondent not guilty.
Viewing counsel's performance under "the totality of the
circumstances" of this case, the respondent's counsel's strategic
decision to admit to the facts of the respondent's statement and
nothing more was not unreasonable. Shatner, 174 Ill. 2d at 147.
Thus, the respondent's claim of ineffective assistance of counsel
fails.
29 No. 1-06-0010
II. Motion to Suppress
The respondent next contends the trial court erred when it
denied his motion to suppress statements when "the record
affirmatively shows [the respondent] did not understand his right
to counsel and therefore could not validly waive it." The
respondent alleges his testimony at the suppression hearing, his
"limited mental capacity," and the lack of a concerned adult who
helped him to understand his rights show that he did not
understand his Miranda rights and, thus, could not have knowingly
waived them.
The State contends the respondent waived this argument for
the purpose of his appeal by failing to include it in his
posttrial motion. See People v. Enoch, 122 Ill. 2d 176, 186, 522
N.E.2d 1124 (1988) (to preserve an issue for appeal, the claimed
error must be raised at trial and in a written posttrial motion).
The respondent responds that counsel's failure to include
this claim in his posttrial motion was ineffective assistance of
counsel. We disagree.
The respondent's posttrial motion argued the trial court
erred when it denied the respondent's motion to quash his arrest
for lack of probable cause, that the jury "completely
disregarded" the testimony of the respondent's mother and
grandmother, that the State's sole eyewitness did not identify
the respondent, that the police committed misconduct, and that
30 No. 1-06-0010
the trial court erred when it answered the jury's note. Though
the respondent's counsel did not include a claim regarding the
respondent's alleged misunderstanding of his Miranda rights, it
is possible that was a strategic decision.
The respondent's motion to suppress statements was denied
after a lengthy hearing and a specific finding that the
respondent was not credible. Under the circumstances, it was not
unreasonable for the respondent's counsel not to include the
claim in his motion for a new trial.
Even were we to relax the waiver rule, the record does not,
as the respondent contends, "affirmatively" show the respondent
did not understand his right to counsel.
The respondent does not deny he was given his Miranda rights
several times. The respondent also does not deny he told
Swiderek and Armbrust that he understood those rights. The
respondent told Swiderek the right to an attorney "means [the
respondent had] the right to have an attorney" when speaking to
the police. When the respondent told Armbrust he did not
understand the right to have an attorney during questioning, she
explained that right to the respondent several times.
However, to support his contention the State did not prove
he made a knowing waiver, the respondent points to his
explanation of the right to an attorney, "I don't have to talk
unless I want my lawyer here" as proof he did not understand the
31 No. 1-06-0010
right to an attorney.
When reviewing a ruling on a motion to suppress, this court
"will accord great deference to the trial court's factual
findings, and will reverse those findings only if they are
against the manifest weight of the evidence; however, the court
will review de novo the ultimate question posed by the legal
challenge to a trial court's ruling on a motion to suppress."
People v. Braggs, 209 Ill. 2d 492, 505, 810 N.E.2d 472 (2003).
Factual findings receive this deference because the trial court
"assessed credibility [and] demeanor." People v. Bernasco, 138
Ill. 2d 349, 364, 562 N.E.2d 958 (1990).
"The State has the burden of proving, by a preponderance of
the evidence, that defendant made a knowing, intelligent and
voluntary waiver of his or her rights." People v. Reid, 136 Ill.
2d 27, 51, 554 N.E.2d 174 (1990). "Once the State has
established its prima facie case, the burden shifts to the
defendant to show that his waiver was not knowing, intelligent or
voluntary." Reid, 136 Ill. 2d at 51. "[I]n order to effect an
intelligent and knowing wavier of Miranda rights, a defendant
must have ' " 'a full awareness of both the nature of the right
being abandoned and the consequences of the decision to abandon
it.' " ' " Braggs, 209 Ill. 2d at 515, quoting Bernasco, 138
Ill. 2d at 360, quoting Patterson v. Illinois, 487 U.S. 285, 292,
101 L. Ed. 2d 261, 272, 108 S. Ct. 2389, 2395 (1988).
32 No. 1-06-0010
"In determining whether a defendant knowingly and
intelligently waived his Miranda rights, a court must consider
the totality of the circumstances, including the characteristics
of the defendant and the details of the interrogation, without
any one circumstance or factor controlling." Reid, 136 Ill. 2d
at 54-55; see also Bernasco, 138 Ill. 2d at 368 ("[w]hether a
defendant intelligently waived his right to counsel depends, in
each case, on the particular facts and circumstances of that
case, including the defendant's background, experiences, and
conduct").
"[T]he receiving of an incriminating statement by a juvenile
is a sensitive concern." People v. Prude, 66 Ill. 2d 470, 476,
363 N.E.2d 371 (1977). "[C]are must be taken to assure that a
juvenile's incriminating statement was not the product of
ignorance of rights or of adolescent fantasy, fright, or
despair." In re W.C., 167 Ill. 2d 307, 328, 657 N.E.2d 908
(1995). A juvenile's "mental capacity *** must be taken into
consideration in determining whether a waiver was valid." W.C.,
167 Ill. 2d at 328. The existence of a "mental deficiency *** is
a factor which must be considered in the totality of the
circumstances under which the right to counsel was waived or a
statement or confession was given." W.C., 167 Ill. 2d at 328.
Though the respondent told Armbrust he understood the right
to an attorney after she explained it to him, the respondent
33 No. 1-06-0010
later said that he did not understand any of his rights. The
respondent claimed he only said that he understood his rights
because he was promised he was not going to be charged.
At the completion of the suppression hearing, the trial
court found the respondent was not credible. The respondent
testified he understood his Miranda rights, he understood some of
his Miranda rights and he understood the remaining rights after
they were explained to him, and that he never understood his
rights, but he said he did because he had been promised that he
was not going to be charged if he made a statement. Swiderek and
Armbrust testified the respondent told them he understood his
rights, could explain his rights, and asked for an explanation of
the rights he did not understand.
It is the trial court's "responsibility to judge the
credibility of the witnesses, and to consider and weigh each of
the factors." Reid, 136 Ill. 2d at 59. Here, after hearing the
respondent's testimony and observing his demeanor, the trial
court did not find the respondent credible, and instead found a
knowing and intelligent waiver. Considering the totality of the
circumstances, that finding was not against the manifest weight
of the evidence.
The respondent next argues he did not understand his Miranda
rights because of his "limited mental capacity."
The respondent relies on the "Amended Social Investigation
34 No. 1-06-0010
Report" as "scientific support" for the respondent's alleged
inability to understand his rights. According to this report,
the respondent was diagnosed with a "level three learning
disability" and read at a third-grade level.
However, nothing in the record suggests the respondent's
third-grade reading level prevented him from understanding
Swiderek's and Armbrust's oral explanations of his rights.
Additionally, the fact the respondent was in special education
classes does not lead directly to the conclusion that at age 15
and after at least four other arrests, the respondent did not
understand his rights. The report which analyzed the
respondent's reading level also stated that the respondent's
academic difficulties were because of his truancy and that his
current teacher though the respondent was a "bright kid" who
understood "abstract things."
The respondent next contends his statements should be
suppressed because no "concerned adult" helped him to understand
his rights.
However, the record indicates the respondent spoke to
several concerned adults. The respondent spoke to his
grandfather and youth officer Parsons before making any
statements. After the respondent made his initial statements,
but before the videotaped statement, he spoke to both his mother
and grandmother. The record indicates the respondent's
35 No. 1-06-0010
grandmother was in the room when the respondent was given his
Miranda rights before making the videotaped statement. The
respondent's grandmother heard the respondent state he understood
each right and the respondent's explanation of each right in his
own words.
The trial court's determination that the respondent
knowingly and intelligently waived his rights was not against the
manifest weight of the evidence. We therefore conclude the
respondent's suppression motion was properly denied.
CONCLUSION
For the reasons stated above, the decision of the circuit
court of Cook County is affirmed.
Affirmed.
CAHILL, P.J., and R. GORDON, J., concur
36 No. 1-06-0010
REPORTER OF DECISIONS - ILLINOIS APPELLATE COURT _________________________________________________________________
In re Dante W., a Minor (The People of the State of Illinois, Petitioner-Appellee, v. Dante W., Respondent-Appellant).
________________________________________________________________
Appellate Court of Illinois First District, First Division
Filed: June 16, 2008 _________________________________________________________________
CAHILL, P.J., and R. GORDON, J., concur. _________________________________________________________________
Appeal from the Circuit Court of Cook County Honorable Rodney Hughes Brooks, Judge Presiding _________________________________________________________________
For RESPONDENT - Michael J. Pelletier, Deputy Defender APPELLANT Debra Loevy-Reyes, Assistant Appellate Defender Office of the State Appellate Defender 203 North LaSalle Street-24th Floor Chicago, Illinois 60601
For PETITIONER - Richard A. Devine, State's Attorney APPELLEE James E. Fitzgerald, Assistant State's Attorney Peter Fischer, Assistant State's Attorney Clare Wesolik Connolly, Assistant State's Attorney State's Attorney, County of Cook Richard J. Daley Center, Room 309 Chicago, Illinois 60602