People v. Mabry

926 N.E.2d 732, 398 Ill. App. 3d 745, 339 Ill. Dec. 257, 2010 Ill. App. LEXIS 155
CourtAppellate Court of Illinois
DecidedFebruary 26, 2010
Docket1—08—0862, 1—08—1025 cons.
StatusPublished
Cited by21 cases

This text of 926 N.E.2d 732 (People v. Mabry) is published on Counsel Stack Legal Research, covering Appellate Court of Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
People v. Mabry, 926 N.E.2d 732, 398 Ill. App. 3d 745, 339 Ill. Dec. 257, 2010 Ill. App. LEXIS 155 (Ill. Ct. App. 2010).

Opinion

JUSTICE LAVIN

delivered the opinion of the court:

In the wake of an armed robbery that resulted in the shooting death of a store owner on South Halsted Street in the city of Chicago, defendant Davon Mabry was arrested, charged with first degree murder, armed robbery and burglary. He was tried and found guilty of first degree murder and armed robbery by a jury and was initially sentenced by the trial judge to a period of 75 years’ imprisonment for the murder, to be served concurrently with 30 years’ imprisonment for armed robbery. After defendant had filed his notice of appeal, the trial court apparently recognized a sentencing error and altered the term to 44 years’ imprisonment for murder and 25 years for discharging a firearm, to be served consecutively with 6 years for armed robbery. For the several reasons detailed below, we affirm defendant’s convictions for first degree murder and armed robbery, but vacate the sentences and remand to the trial court for resentencing.

BACKGROUND

Defendant Davon Mabry, James Higgins, and Andre Howard were charged with first degree murder and armed robbery for the shooting death of In Hwang on September 10, 2004, at his place of business at 93rd and Halsted in Chicago. While in custody, defendant made a videotaped statement to Assistant State’s Attorney (ASA) Robert Robertson. Defendant’s motion to suppress his inculpatory statements was denied and his videotaped statement was published for the jury at trial.

In the videotape, defendant explained that on September 10, 2004, around 2 p.m., he, Higgins, and Howard met outside an apartment building. There they discussed Higgins’ dream that the three of them had robbed Hwang’s beauty supply store. Because the dreamed criminal venture was successful, the three thought they could do it in real life. Thus began their planning of the robbery, the main feature of which was the use of two guns — a .22-caliber revolver and a BB gun that resembled a .45-caliber automatic.

Fantasy became an unfortunate and fatal reality when the three men entered the victim’s store, armed and intent on robbery. The then 18-year-old defendant walked in first, pulled the revolver out of his pocket, stood about five feet from Hwang, and pointed the gun at Hwang’s chest. Higgins and defendant asked Hwang to open the register, but Hwang said he could not open it. Defendant walked around to the other side of the counter, seeking to impel Hwang to open the register by putting his gun against the victim’s neck. Defendant said he began to get upset because the robbery was going according to neither the dream nor their plan. Howard grabbed some T-shirts from the racks and ran out of the store. After failing in his attempt to get the victim to open the register, defendant elected to steal everything out of Hwang’s pockets, which basically consisted of a small amount of cash in a wallet and the victim’s cell phone. At that point, Hwang told defendants that he knew their faces and where they hung out.

Defendant and Higgins then began to leave, but upon reaching the door, defendant considered Hwang’s statement about his ability to identify the perpetrators and then decided to shoot the store owner to eliminate the potential witness because he was frustrated by the botched robbery and was scared Hwang would call the police.

Prior to trial, defendant filed a motion to suppress his custodial statements. At the motion-to-suppress hearing, a number of witnesses were called regarding the events surrounding defendant’s arrest and subsequent interrogation. Officer Shannon testified that he, Officer Maulin, and Officer Flagg arrested defendant at 12:12 p.m. on September 11, 2004, the day after the shooting and robbery. Upon arresting defendant, Officer Shannon said that he read defendant his Miranda rights. According to Shannon, defendant acknowledged that he understood his rights and stated that he did not wish to answer any questions. The three arresting officers arrived at Area 2 police headquarters at 1 p.m., placed defendant in an interview room, and turned him over to homicide detectives Filipiak and Fitzmaurice.

Detective Filipiak testified that he and Detective Fitzmaurice spoke with defendant around 1 p.m. Detective Filipiak, who testified that he was unaware that the arresting officer was told that defendant had invoked his right to remain silent, then advised defendant of his Miranda rights. According to Filipiak, defendant acknowledged that he understood each right, but then defendant provided an exculpatory statement. Defendant denied receiving his Miranda rights either on the occasion of his arrest by Officer Shannon or by any of the investigating detectives.

Detective Filipiak testified that the detectives interviewed defendant again at 1:45 p.m. — this time at defendant’s request — and Mirandized defendant. Detective Filipiak stated that defendant waived his Miranda rights and inculpated himself. Again, defendant denied being advised of his Miranda rights. Detectives Fitzmaurice and Filipiak spoke with defendant again at 6:45 p.m. According to Detective Filipiak, defendant waived his Miranda rights and made another inculpatory statement. Again, defendant denied receiving his Miranda rights.

Detective Spagnola testified that he and Detectives Harrison and Pacelli interviewed defendant on September 12, 2004, at 3:35 a.m. Detective Spagnola stated that defendant was wearing sports-style attire. Detective Spagnola testified that Detective Harrison read defendant his rights, and defendant understood his rights and gave an inculpatory statement. Detective Spagnola then called the felony review unit, prompting the later arrival of ASA Robertson.

ASA Robertson testified that he interviewed defendant in Detective Spagnola’s presence and that he read defendant his Miranda rights. After this conversation with ASA Robertson, defendant gave a videotaped statement. In the statement, defendant acknowledged that ASA Robertson Mirandized him prior to their first conversation and that he waived those rights. Defendant signed a consent to videotape. Defendant also stated that he was treated “very fairly” by the police and that he had no complaints about his treatment.

At the hearing on the motion to suppress, defendant testified that the police approached him around noon on September 11, 2004, put him on their car, handcuffed him, placed him in the backseat of the car, and transported him to the police station. Once there, the officers placed him in an interview room on a steel bench and handcuffed him to a ring on the wall for five to six hours, during which time the police officers entered and asked him questions without informing him of his rights. Defendant testified that he was dressed in basketball attire, which was unsuitable to the temperature of the air-conditioned room, and that he was cold, uncomfortable, and unable to move around to keep warm because he was seated on a metal bench and handcuffed to a metal ring on the wall. Defendant testified that he asked the police to turn the air conditioning down, to provide him with more clothes, and to allow him to make a phone call, but that each request was denied.

Defendant further testified that after speaking with Detective Spagnola, the detective walked him back toward the interview room, grabbed him in a forceful manner, pushed him into the room, and handcuffed him to the wall.

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Cite This Page — Counsel Stack

Bluebook (online)
926 N.E.2d 732, 398 Ill. App. 3d 745, 339 Ill. Dec. 257, 2010 Ill. App. LEXIS 155, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-mabry-illappct-2010.