People v. Mitchell

820 N.E.2d 1052, 354 Ill. App. 3d 396, 289 Ill. Dec. 977, 2004 Ill. App. LEXIS 1448

• Court: Appellate Court of Illinois
• Decided: December 3, 2004
• Docket: 1-02-1244
• Status: Published

Opinions

JUSTICE TULLY

delivered the opinion of the court:

Following a jury trial, defendant, Edward Mitchell, was found guilty of first degree murder and sentenced to 100 years in prison. On appeal, defendant argues (1) that his confession should have been suppressed because it was obtained through coercion; (2) that the surveillance video from the food store where the shooting occurred should not have been admitted as the State failed to lay a proper foundation; (3) that the court improperly allowed hearsay testimony from an expert witness and that defendant’s counsel was ineffective for failing to object to the testimony; (4) that he was improperly sentenced to an extended-term of imprisonment; and (5) that section 111 — 3(c—5) of the Code of Criminal Procedure of 1963 (725 ILCS 5/111—3(c—5) (West 2002)), which provides the procedural requirements for seeking an extended-term sentence, violates article I, section 7, of the Illinois Constitution (Ill. Const. 1970, art. I, § 7).

After the issues raised by defendant had been fully briefed, the defendant sought leave to file a supplemental brief in light of a recent appellate court decision which held that the illegal delay in arraignment of a defendant rendered his confession, given during the period of delay, inadmissible as a matter of law. We granted leave to file and the issue has been fully briefed by the defendant and the State. The State maintains that the issue of whether the defendant’s fourth amendment rights were violated by a delay in holding a probable cause hearing is waived because the defendant did not raise the issue in his posttrial motion. We find that the error affects substantial rights of the defendant and we will review this issue under the plain error rule.

The trial court conducted a lengthy hearing on defendant’s motion to suppress his confession. The defendant’s contention in the trial court was that mistreatment by the police caused him to make an involuntary confession. Defendant makes that same argument on appeal. In defendant’s supplemental brief, however, he also argues that his confession should have been suppressed because it was obtained in violation of his fourth amendment rights under the McLaughlin/ Gerstein rule. See County of Riverside v. McLaughlin, 500 U.S. 44, 114 L. Ed. 2d 49, 111 S. Ct. 1661 (1991); Gerstein v. Pugh, 420 U.S. 103, 43 L. Ed. 2d 54, 95 S. Ct. 854 (1975). Our discussion of the facts incorporates the testimony from the hearing on the defendant’s motion to suppress as well as testimony from the trial. We focus on the evidence relevant to the fourth amendment issue.

FACTS

On July 31, 1999, eight-year-old Paulette Peake was shot and killed while standing inside Pat’s Food Store on the corner of 79th Street and Sangamon in Chicago.

Officer Ronald Spraggins of the Chicago police department responded to a call on July 31, 1999, that a child had been shot at Pat’s Food Store. Officer Spraggins and his partner arrived at the scene just after 9:30 p.m. Officer Spraggins testified that a crowd had gathered outside Pat’s Food Store and a woman was yelling out that she had seen three men hanging around Leo High School all evening. Leo High School is located diagonally across the street from Pat’s Food Store. The woman stated that she heard the shots fired and they came from the area where the men had been hanging out all night. She gave a general description of the men, calling one of them “Kenny” and another “Mitch.” Officer Spraggins went down the alley near Leo High School, where he found shell casings. He continued his search down the alley and observed the defendant jumping over a fence. Spraggins and his partner chased the defendant and arrested him in the alley. Officer Spraggins and his partner transported the defendant to the 6th District station.

At the 6th District, the defendant was interviewed by Detectives Robert Arteaga and Sylvia Van Witzenberg between 3 a.m. and 4 a.m. on August 1. The results of a gunshot residue test taken earlier were inconclusive. The interview lasted 20 to 30 minutes and the detectives told the defendant he was not being charged and he would be released from the 6th District. Detective Arteaga asked the defendant whether he would help them with the investigation and defendant agreed. The defendant was released from the 6th District and voluntarily taken directly to Area 2.

Also on August 1, 1999, the codefendant, Kevin Johnson, was taken into custody. Kevin Johnson identified the defendant as the shooter and gave a court-reported confession. Thereafter, Detective Arteaga went to 7927 South Sangamon to recover the murder weapon.

At approximately 2 p.m. on August 1, the defendant was placed under arrest after being identified as the shooter. Detectives Van Witzenberg and Arteaga interviewed him again at Area 2 after informing him that he had been named as the shooter. Later that evening, at approximately 10 p.m., the defendant was interviewed by Assistant State’s Attorney (ASA) Arunas Buntinas. That interview lasted approximately 45 minutes. ASA Buntinas interviewed the defendant again for about two hours at 4 a.m. on August 2.

On August 2 the police interviewed a witness to the shooting, Mary Lewis. On July 31, Mary Lewis was standing in front of her house at 7812 Sangamon in Chicago. Pat’s Food Store is located at the end of her block and Leo High School is located diagonally across from Pat’s Food Store. Mary Lewis saw the defendant and two other men standing by the corner near Leo High School. She recognized all three of the men as she had seen them before. Ms. Lewis spent most of the evening on her front stoop because she wanted to go to Pat’s Foods hut was waiting for the defendant and the others to “clear the corner” so she could walk down the street. At approximately 9:30 p.m., Ms. Lewis heard gunshots and saw sparks coming from the location where the defendant had been standing near Leo High School. Ms. Lewis ran into her house, put on some shoes, and then went to the corner, to Pat’s Food Store. When Ms. Lewis arrived at Pat’s Food Store she was yelling, “Kenny and Mitch did it.”

At approximately 7 p.m. on August 2, Detectives Van Witzenberg and Arteaga showed the defendant a surveillance tape from Pat’s Food. The tape showed the inside of the store at the time of the shooting. This interview lasted approximately 45 minutes. On August 2 at approximately 11:30 p.m., ASA Buntinas interviewed the defendant again for 30 to 45 minutes and continued to interview the defendant periodically throughout the night. At 2 a.m. on August 3, the detectives and ASA Buntinas again showed defendant the surveillance tape from Pat’s Foods. Between 5 a.m. and 10 a.m. on August 3, ASA Buntinas periodically interviewed the defendant.

At approximately 4 or 5 p.m. on August 3, Detectives Van Witzenberg and Arteaga were notified of an outstanding warrant for the defendant in Bridgeview. At 10:30 p.m. on August 3, the detectives informed the defendant that he would be going before a judge in Bridgeview the following morning. The detectives arranged for the defendant to call his mother to let her know he was going to Bridge-view. However, there was a problem processing the warrant so the defendant was never taken to Bridgeview and he remained in the interview room in Area 2.

On August 4, Detective Clarence Hill transported a second witness, Demetrius Jones, to Area 2 to view a lineup. On the night of the shooting when the police had arrived at the scene, Jones told one of the officers that he had seen what happened. A large crowd had gathered and the officer asked Jones to step aside while he cleared away the people. Jones waited and then decided to contact the police later as the scene was chaotic. Jones spoke to a police officer the day after the shooting while police were investigating, but he was reluctant to tell the police what he had seen because gang members were nearby. Jones told the officer that he had seen some of what happened and he gave the officer his telephone number. On August 4 at approximately 7:45 p.m., Jones viewed a lineup and identified the defendant as the man he had seen after the shooting standing behind Leo High School holding a rifle.

After the lineup, the detectives told the defendant he had been picked out and took him back to the interview room. They left him there unattended. A few minutes later Detective Van Witzenberg looked inside the room and saw the defendant cutting his wrists with a piece of metal. Detective Van Witzenberg and several others rushed in and stopped the defendant and tried to apply paper towels to the defendant’s wrists. An ambulance arrived and transported the defendant to the hospital. The defendant was returned to Area 2 about three hours later, at 11 p.m., and put back in the interview room.

On August 5 at approximately 1:30 a.m., Detectives Van Witzenberg and Arteaga interviewed the defendant again for about 30 minutes. After the interview, the defendant was taken to the bathroom. As he returned to the interview room, he saw Assistant State’s Attorney Torreya Hamilton sitting at a desk. The defendant stated that he wanted to speak to the ASA. ASA Hamilton interviewed the defendant twice in the early morning hours of August 5. Thereafter, at approximately 9:15 a.m. on August 5, the defendant gave his videotaped statement — the first videotaped statement ever taken in Illinois. The statement was taken 91 hours after the arrest of the defendant.

The defendant was taken before a judge for a probable cause hearing the morning of August 6, more than 115 hours after his arrest.

The trial court found that the defendant had given his statement voluntarily and denied his motion to suppress the statement. We acknowledge that the trial judge ruled on the voluntariness of defendant’s statement in light of allegations of police misconduct. We further acknowledge that testimony from the suppression hearing was elicited within the context of defendant’s argument that his statement was the result of mistreatment by the police. However, the testimony is extensive and we find it sufficient for us to review whether the defendant’s fourth amendment rights were violated.

DISCUSSION

Under the fourth amendment of the United States Constitution, a defendant arrested without a warrant has the right to a probable cause hearing as a prerequisite to an extended restraint on liberty. Gerstein v. Pugh, 420 U.S. 103, 114, 43 L. Ed. 2d 54, 65, 95 S. Ct. 854, 863 (1975). The Supreme Court has held that a judicial determination of probable cause within 48 hours of arrest generally passes constitutional muster. County of Riverside v. McLaughlin, 500 U.S. 44, 56, 114 L. Ed. 2d 49, 63, 111 S. Ct. 1661, 1670 (1991). When a probable cause determination is not made within 48 hours of arrest, the defendant no longer has the burden to show unreasonable delay. The burden shifts to the State to show the existence of an emergency or other extraordinary circumstance. McLaughlin, 500 U.S. at 57, 114 L. Ed. 2d at 63, 111 S. Ct. at 1670. The Supreme Court has not fashioned a remedy for the State’s failure to obtain judicial authorization for a significant pretrial detention period that violates the fourth amendment. See Powell v. Nevada, 511 U.S. 79, 128 L. Ed. 2d 1, 114 S. Ct. 1280 (1994).

In Illinois, the Gerstein rule has been codified in section 109 — 1(a) of the Code of Criminal Procedure of 1963 (725 ILCS 5/109—1(a) (West 1998)). While there is no separate remedy for violation of the presentment rule, Illinois courts have held that the delay is a factor to be considered when determining whether the confession was voluntary. People v. House, 141 Ill. 2d 323, 380, 566 N.E.2d 259 (1990); People v. Dees, 85 Ill. 2d 233, 237, 422 N.E.2d 616 (1981); People v. Groves, 294 Ill. App. 3d 570, 577, 691 N.E.2d 86 (1998).

However, this court’s recent decision in People v. Willis, 344 Ill. App. 3d 868, 801 N.E.2d 47 (2003), appeal allowed, 207 Ill. 2d 627, 807 N.E.2d 981 (2004), held that a lengthy detention before any judicial intervention violated the fourth amendment and that suppression of the confession was the proper remedy. Willis, 344 Ill. App. 3d at 871, 801 N.E.2d at 50. The Willis court made a distinction between a fourth amendment analysis of a McLaughlin violation and a fifth amendment analysis of the violation. Willis acknowledged that Illinois courts have applied a fifth amendment analysis and looked at a delay in presentment of a defendant before a judge as one factor in determining whether a confession was voluntarily made. The Willis court, however, did not limit its analysis to the question of voluntariness of the confession. Citing People v. Chapman, 194 Ill. 2d 186, 215-16, 743 N.E.2d 48 (2000), the court in Willis reasoned that the fundamental differences between the goals of the fourth and fifth amendments required more than a determination of voluntariness. Willis, 344 Ill. App. 3d at 880. Willis determined that even if a statement is found to be voluntary, the fourth amendment issue remains and the court must determine whether the “taint” of the unlawful detention requires suppression of the statement. We agree with the reasoning of the Willis court.

The State argues that “decades of Illinois Supreme Court precedents” require us to consider the delay in presenting a defendant before a judge as one factor in determining the voluntariness of defendant’s statement. Citing numerous cases, the State maintains that the Illinois Supreme Court “has uniformly rejected suppressing a confession solely because of a delay in providing a probable cause determination. ’ ’

While we agree with the State that our supreme court has consistently considered the length of detention as one factor in determining whether a statement was voluntary, we believe that such an analysis only protects a defendant’s fifth amendment right against self-incrimination. If we limit our analysis to the question of voluntariness, we fail to furnish meaningful protection from unfounded interference with liberty as required by the fourth amendment. The voluntariness test is designed to protect the fifth amendment right against self-incrimination by excluding a statement that is obtained through coercion by the police. It does not address the liberty interests implicated by a fourth amendment violation. Thus, even if the statement in this case were found to be voluntary under the fifth amendment, the fourth amendment issue remains. Accordingly, we agree with the Willis court that our supreme court does not require us to determine only that the statement was voluntary. We must also determine whether the defendant was illegally detained in violation of his fourth amendment rights.

In this case, the defendant was arrested at 2 p.m. on August 1, 1999, and presented before a judge for a probable cause determination during the morning hours on August 6, 1999 — more than 110 hours later. He agreed to give a videotaped confession approximately 85 hours after his custodial detention began. The 85-hour detention before the defendant made his confession far exceeds the 48-hour period for a presumably reasonable delay. Thus, the burden falls on the State to show an emergency or extraordinary circumstance is to blame. McLaughlin, 500 U.S. at 57, 114 L. Ed. 2d at 63, 111 S. Ct. at 1670.

Here, we find no indication in the record the delay was the result of an emergency or extraordinary circumstance. We note that on August 4 the defendant was to be taken to Bridgeview to appear before a judge on an outstanding warrant. We do not find this to be an extraordinary circumstance. First, the detectives testified that they learned of the warrant on August 3 at 4 p.m. — 50 hours after the detention began. Second, the defendant was never even taken to Bridgeview, so there was no reason to delay a probable cause hearing. We also note that the defendant was transported to the hospital for self-inflicted injuries; however, this occurred 78 hours after his detention began.

We find the defendant’s lawful detention became unlawful in violation of the fourth amendment to the United States Constitution after the passage of 48 hours. His confession came well after his detention became unlawful. Further, in light of our earlier analysis, we agree with the Willis court that “[t]he deterrent purpose of the exclusionary rule would be well served by suppression of statements that are unpurged of the primary taint created by a McLaughlin violation.” Willis, 344 Ill. App. 3d at 884.

We now must determine whether defendant’s confession is “ ‘sufficiently an act of free will to purge the primary taint’ ” of the unlawful detention. Brown v. Illinois, 422 U.S. 590, 598, 45 L. Ed. 2d 416, 424, 95 S. Ct. 2254, 2259 (1975), quoting Wong Sun v. United States, 371 U.S. 471, 486, 9 L. Ed. 2d 441, 454, 83 S. Ct. 407, 416 (1963). The Brown Court set forth four factors to determine whether a confession should be suppressed as fruit of the poisonous tree: (1) whether the confessor received the Miranda warnings; (2) the presence of intervening circumstances; (3) the temporal proximity of the arrest and the confession; and (4) the purpose and flagrancy of the police misconduct. Brown, 422 U.S. at 603-04, 45 L. Ed. 2d at 427, 95 S. Ct. at 2261-62. The record in this case contains sufficient information to conduct an attenuation analysis, and remand on this issue is unnecessary.

Here, the testimony of the detectives and the assistant State’s Attorneys establishes that the defendant received numerous Miranda warnings. Although this factor supports admission of defendant’s confession, the fact defendant received Miranda warnings “alone and per se, cannot dissipate the taint” of an illegal detention. People v. White, 117 Ill. 2d 194, 223, 512 N.E.2d 677 (1987); Brown, 422 U.S. at 603, 45 L. Ed. 2d at 427, 95 S. Ct. at 2261; People v. Franklin, 115 Ill. 2d 328, 337, 504 N.E.2d 80 (1987) (receiving Miranda warnings “on a number of occasions” during detention was not enough to purge the taint).

Next, an intervening circumstance purges the taint of illegality by breaking the causal connection between illegal police conduct and the confession. People v. Austin, 293 Ill. App. 3d 784, 788, 688 N.E.2d 740 (1997). For example, the defendant might be confronted with new, legally obtained information that would produce a voluntary desire to confess. People v. Ollie, 333 Ill. App. 3d 971, 986, 777 N.E.2d 529 (2002). Nothing like that happened in this case. During the time defendant was detained, he was not confronted with any new evidence. The defendant was told at the time of his arrest that he had been identified as the shooter. Within 48 hours of the arrest, the police had arrested a codefendant and obtained a written statement from him, recovered the murder weapon, and taken a witness statement from Mary Lewis. The detectives showed the defendant the surveillance video from Pat’s Foods which showed the victim being shot inside the store. Over the next two days, the defendant was shown this surveillance video several times. The defendant only left the interview room to use the bathroom, he used the telephone once, and he did not speak with an attorney. The only event occurring during the delay before presentment was when the defendant was taken to the hospital, which occurred after 8 p.m. on August 4, 1999 — more than 78 hours after his arrest. The detention already was illegal under McLaughlin when defendant was transported to the hospital.

Third, the significance of the temporal proximity of the arrest and the confession depends on the particular circumstances of the case. White, 117 Ill. 2d at 223-24. For example, a prolonged detention between an arrest and a confession “ ‘may serve to amplify the coercion latent in a custodial setting.’ ” Ollie, 333 Ill. App. 3d at 985, 777 N.E.2d 529, quoting People v. Lekas, 155 Ill. App. 3d 391, 414, 508 N.E.2d 221 (1987). We find no intervening circumstances to explain defendant’s decision to confess after numerous interviews over four days. This leads us to believe the inherently coercive nature of the 85-hour detention produced a confession that was not sufficiently an act of free will, purged of primary taint.

Finally, the purpose and flagrancy of police misconduct is a key factor in determining whether this statement is admissible. Ollie, 333 Ill. App. 3d at 986. In this case, the factor supports suppression. The police detained defendant without a probable cause hearing for 85 hours until he gave an inculpatory statement. With defendant’s confession in hand, police presented defendant before a judge. The police had the murder weapon, the statement of a codefendant, the statement of a witness and the knowledge that a second witness had information concerning the shooting. Although the police did not have a lineup until more than 75 hours after the defendant was arrested, this hardly qualifies as an emergency or extraordinary circumstance that would justify the violation of defendant’s constitutional rights under the fourth amendment.

As our colleagues stated in Willis, the Supreme Court in Gerstein and McLaughlin “created a rule of prompt presentment to safeguard the rights of innocent persons, whose rights may never be litigated, from receiving unconstitutional treatment at the hands of police.” Willis, 344 Ill. App. 3d at 887. The delay in this case is an example of the situation the Court sought to prevent. The record here fails to show any attempt by the police in this case to minimize the length of defendant’s detention. On the contrary, the record demonstrates an indifference to defendant’s rights and suggests the purpose of the prolonged detention was to elicit a confession.

The disregard of McLaughlin in this case weighs heavily in favor of suppression.

CONCLUSION

The failure to suppress defendant’s confession was reversible error. Accordingly, we reverse his conviction and remand for a new trial. After thoroughly reviewing the evidence, we are convinced that it was sufficient to support a finding of guilty beyond a reasonable doubt. Under these circumstances, a retrial of defendant would not violate double jeopardy principles. People v. Stafford, 325 Ill. App. 3d 1069, 1075, 759 N.E.2d 115, 120 (2001).

Reversed and remanded for a new trial.

FITZGERALD SMITH, EJ., concurs.