2021 IL App (1st) 181351-U FIFTH DIVISION MARCH 31, 2021
No. 1-18-1351
NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except in the limited circumstances allowed under Rule 23(e)(1). ______________________________________________________________________________
IN THE APPELLATE COURT OF ILLINOIS FIRST JUDICIAL DISTRICT ______________________________________________________________________________
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the ) Circuit Court of Plaintiff-Appellee, ) Cook County. ) v. ) No. 13 CR 8101 03 ) AKEEM SIMMONS, ) Honorable ) Michael B. McHale, Defendant-Appellant. ) Judge Presiding. _________________________________________________________________________
JUSTICE CUNNINGHAM delivered the judgment of the court. Presiding Justice Delort and Justice Rochford concurred in the judgment.
ORDER
¶1 Held: The trial court did not err in denying the defendant’s motion to quash arrest and suppress evidence; any error by the trial court in denying the defendant’s motion to suppress statement was harmless; and the trial court did not impose an excessive sentence.
¶2 Following a jury trial in the circuit court of Cook County, the defendant-appellant, Akeem
Simmons, was convicted of first degree murder and sentenced to 65 years in prison. The defendant
now appeals and raises numerous allegations of error by the trial court. For the reasons that follow,
we affirm the judgment of the circuit court of Cook County. 1-18-1351
¶3 BACKGROUND
¶4 The defendant was charged with the October 12, 2012, murder of William Thomas. The
defendant was twenty years old at the time of the murder. His three co-defendants, Aramis
McKinzie, Garlin Minor, and Malcolm Terry, were also charged with first degree murder. The
State’s case theorized that the defendant and his co-defendants were part of a group who
accidentally shot Mr. Thomas during a gang-related conflict. The defendant was tried in separate
but simultaneous jury trials with co-defendant Terry. Prior to the trial, the defendant filed two pre-
trial motions: a motion to quash arrest and suppress evidence and a motion to suppress statement.
¶5 Motion to Quash Hearing
¶6 A hearing commenced on the defendant’s motion to quash his arrest and suppress evidence,
which was held simultaneously with hearings on similar motions from co-defendants McKinzie
and Minor. Chicago Police Officer Martin Teresi testified that on February 28, 2013, around 2:45
a.m., he went on an assignment with three partners to arrest the defendant at his home in connection
with the murder of Mr. Thomas. They did not have an arrest warrant for the defendant or a search
warrant for the home. Following the defendant’s arrest, the police officers took him to the police
station.
¶7 Chicago Police Officer Kevin Kilroy testified that he was on assignment with Officer
Teresi when they went to arrest the defendant. He testified that detectives had identified the
defendant as the shooter in the October 12, 2012, murder of Mr. Thomas based on “interviews
with other individuals” at the police station. When police officers knocked on the door of the
defendant’s apartment, his mother answered. The defendant was in the living room and Officer
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Kilroy did not see him doing anything illegal.1
¶8 After the defendant presented his motion, the State filed a motion for a directed finding
and the parties made arguments. The defendant argued that his arrest was unreasonable because
the arresting officers did not have a warrant and did not have probable cause to arrest him since he
was simply sitting in his living room. Therefore, he claimed that the trial court should quash his
arrest and suppress his statement which he made later at the police station. In response, the State
argued:
“When [co-defendants McKinzie and Minor] got to the station, they implicated
themselves and they implicated [the defendant] in the homicide. [The defendant] is
under arrest because he was implicated by both Mr. McKinzie and Mr. Minor, so
they went to arrest him. They don’t have to get an arrest warrant. He’s been
implicated in a homicide. That’s probable cause.”
¶9 The trial court agreed with the State, stating:
“[The police officers] did have probable cause. I’m aware of the statements made
by [co-defendants] McKinzie and Minor through other motions that were filed in
the court and there was some brief testimony that this occurred after they implicated
or at least they were questioned by the detectives. But the implication is clear. [Co-
defendants] McKinzie and Minor implicated [the defendant] and that was probable
cause to arrest him.”
The trial court then granted the State’s motion for a directed finding, and consequently, denied the
1 Officers Teresi and Kilroy also testified, regarding co-defendants McKinzie’s and Minor’s cases, that prior to the defendant’s arrest, they were picked up and questioned at the police station, where they subsequently made incriminating statements.
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defendant’s motion to quash arrest and suppress evidence.
¶ 10 Motion to Suppress Hearing
¶ 11 A hearing then commenced on the defendant’s motion to suppress his statement. In his
motion, the defendant asserted that, following his arrest, he was interrogated by detectives at the
police station. During his interrogation, he told the detectives numerous times that he did not want
to speak with them; but the detectives ignored his requests and the defendant eventually gave
incriminating statements. At the hearing, the defendant introduced and played several clips from
his electronically recorded interview (ERI) at the police station with Detectives Garza, Hinkley,
Wright, and Murphy. A transcript of the ERI was also submitted into evidence. The ERI began
with the detectives giving the defendant his Miranda rights and the defendant waiving those rights.
The detectives then brought up the October 12, 2012, shooting of Mr. Thomas and told the
defendant that other people had identified him as the shooter. The defendant said he heard of the
shooting because it was in his neighborhood, but he denied any involvement in it.
¶ 12 The relevant portions of the ERI are as follows:2
“[DETECTIVE]: That’s why we’re giving you an opportunity --
[THE DEFENDANT]: (Inaudible).
[DETECTIVE]: -- to tell the truth, to tell you[r] side.
[THE DEFENDANT]: I understand but, sir, I just don’t want to say
anything and get anybody else in trouble and get myself in any more trouble than
what I already am.
2 The record reflects that four different detectives interrogated the defendant over the course of the ERI: Detectives Garza, Hinkley, Wright, and Murphy. The transcript does not identify which detective is speaking at which time.
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[DETECTIVE]: Well --
[THE DEFENDANT]: I don’t know anything about none of this. That’s
why I’m you (inaudible).
[DETECTIVE]: Let me ask you this. You’re - you’re - you’re - that’s hood
over there.
[THE DEFENDANT]: Right. I grew up around there.”
¶ 13 The detectives continued to tell the defendant that other people identified him as the
shooter, but the defendant maintained he was not involved in the shooting and that he had an alibi:
“[THE DEFENDANT]: I wasn’t there. How could you force me to say I
was at a place where I never was there? You cannot - you can’t force me. I just
want - I don’t want (inaudible).
[DETECTIVE]: Where was this at?
[THE DEFENDANT]: I don’t even want to talk to ya’ll [sic] anymore. I
couldn’t talk - you go talk to somebody else that could talk funny because I feel
like right now me talkin’ to ya’ll [sic] is not getting me nowhere (inaudible).
[DETECTIVE]: Look, it’s not - it’s not - well you can talk to (inaudible).
[THE DEFENDANT]: ‘Cause it feel - I feel like you’re trying to pressure
me to say something that --
[DETECTIVE]: No, no, no.
[THE DEFENDANT]: -- I didn’t do.
[DETECTIVE]: Okay.
[THE DEFENDANT]: That’s what I feel like.”
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¶ 14 Eventually, the defendant admitted to being part of a gang known as the “Hood Gang.” He
also admitted to knowing that his fellow gang member, Marshawn, had been beaten by a rival gang
the day of the shooting. The defendant explained that Marshawn came over to his house and told
him about the beating right after it happened. Marshawn then called someone else on the telephone
and the defendant overheard him say that he wanted revenge and that there was going to be a fight.
Marshawn then left the defendant’s house to meet with another gang member, known as Two Feet.
The detectives accused the defendant of not only being involved in the shooting, but also of being
the actual shooter. The defendant continued to claim that he was not involved with the shooting
and that he had an alibi.
“[DETECTIVE]: Okay, what will be your story then when you break the
alibi?
[THE DEFENDANT]: What you - what you mean?
[DETECTIVE]: What are you gonna tell us when we ask you, okay hey
listen --
[THE DEFENDANT]: I’m gonna talk to my lawyer then. I mean -
whatever.
[DETECTIVE]: You want to talk to your lawyer?
[DETECTIVE]: You wanna - is that what you’re saying?
[THE DEFENDANT]: I’m saying if you break -
[DETECTIVE]: You got to answer our que - you - you understand what -
what we just asked you? Is that what you want?
[DETECTIVE]: If you want your lawyer, then we can’t talk.
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[DETECTIVE]: We’re - we’re not talking anymore.
[DETECTIVE]: Is that what you want?
[THE DEFENDANT]: You can talk to me,
[DETECTIVE]: We’re talkin’, so you - I’m gonna be perfectly clear. You’re
- you’re okay talkin’ to us?
[THE DEFENDANT]: Yes, sir.
[DETECTIVE]: You don’t want a lawyer right now?
[THE DEFENDANT]: No, sir.”
The detectives continued to tell the defendant that his fellow gang members already told them that
he was the shooter:
“[DETECTIVE]: Well we can’t - I mean we’ve explained ourselves three
or four times and this is it, man. This is it.
[THE DEFENDANT]: Right, so that’s what I’m sayin’ I’m - that’s what I
was telling you. I’d rather not even talk with you. You say it’s no[ ] doubt --
[DETECTIVE]: So --
[THE DEFENDANT]: -- whether I did it or if I didn’t do it.
[DETECTIVE]: So you --
[THE DEFENDANT]: There’s not a doubt in it so --
[DETECTIVE]: So you’re saying that you don’t want to talk about what
you’re feeling inside now at the time? You don’t want to talk about that?
[THE DEFENDANT]: I’m just saying period.
[DETECTIVE]: At all, nothing?
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[THE DEFENDANT]: (Inaudible) I don’t have nothing’ to talk about but I
told you everything that I know. I told you I knew there was a fight with the [rival
gang].”
¶ 15 Eventually the defendant admitted to knowing more details about the shooting although he
was not the shooter:
“[DETECTIVE]: Then who’s the f*ckin’ shooter, man.
[THE DEFENDANT]: Honestly I could tell you but I really feel like I
shouldn’t tell you because I feel like I’ll be diggin’ a deeper hole for myself since
I’m already getting’ charged with this anyway.
***
[DETECTIVE]: Who killed the man?
[THE DEFENDANT]: And I could tell you - I probably could suption [sic]
up why they sayin’ I’m the shooter anyway because I - I really stopped hanging out
with them.
[THE DEFENDANT]: Yeah, I wanna see my girl then I wanna talk to my
mother. I just want to let them know what I’m getting’ - what I got myself into, you
know ‘cause I - I know I got myself into some stuff --
[DETECTIVE]: All right.
[THE DEFENDANT]: -- just dealing with these guys, you know. But in all
honesty I ain’t pull that trigger.”
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¶ 16 The defendant then abandoned his alibi and admitted to the detectives that his group went
to fight with the rival gang because they had beaten Marshawn that day. He claimed that he hung
back across the street while Marshawn and Two Feet crossed the street, and Marshawn fired the
gun which unintentionally hit and killed Mr. Thomas.
¶ 17 The detectives asked the defendant whose idea it was to go over and fight with the rival
gang and where the gun came from:
“[THE DEFENDANT]: I (inaudible) like really talk no more about it, you
know. Just to be safe on my behalf you know ‘cause I feel like I’m getting’ myself
in trouble (inaudible).
[DETECTIVE]: No I - I just wanna - I just want know - you’re hear [sic]
already, you’re hear [sic] already. They’re - we’re gonna go get - what’s his name
again?
[DETECTIVE]: Marshawn.
[DETECTIVE]: Marshawn. What if Marshawn says, all right yeah I got the
man - I shot and - but these guys were over here. You walked across the street with
them or whatever - whatever he says. Do you understand that - that --
[THE DEFENDANT]: But who - I just want to know who told you that I
walked across the street?
[DETECTIVE]: Everybody that was there.
[THE DEFENDANT]: Can we just leave it as it is already? Can we just -
‘cause I know I’m goin’ to the county anyway. I already know I’m goin’ so I’ll just
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fight a case.
[DETECTIVE]: Well you wanna be - you wanna be looked at as the shooter,
that’s with me. You want everybody [to] believe that you did the shooting, that’s
fine with me.
[THE DEFENDANT]: But I told you already.
[DETECTIVE]: Tell us the truth. What the f*ck happened? Who walked
down there? You or Two Feet walk down there, man?
[THE DEFENDANT]: No.
[DETECTIVE]: Who walked down there?
[THE DEFENDANT]: I don’t know, it - I don’t know it was dark. I don’t
know. I just want - I don’t wanna talk no more, sir.
[DETECTIVE]: All right, we’ll leave it at that. You could leave it in the
hand - we’ll do the lineups. You know I - I - I don’t know what else I could tell you
man. I mean I’ve been honest with you, I’ve been straight forward. I’m not gonna
keep playin’ this game. I stood in here longer than I wanted to and I mean you’re
still bullshittin’. You don’t wanna tell us who you were down there with. We’ll
leave it --
[DETECTIVE]: We’ll - we’ll leave it at - we’ll leave it at that. You said you
were - like I said you changed your story a bunch of times, dude.
[THE DEFENDANT]: I never went across.”
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¶ 18 The defendant reiterated that his group went to fight with the rival gang after they had
beaten Marshawn, and that his group accidentally shot Mr. Thomas. They ran away afterwards.
The defendant said that Two Feet, not he, shot the gun. The ERI concluded shortly afterwards.
¶ 19 After he finished playing the clips from the ERI for the trial court, the defendant argued
that his repeated requests to cut off questioning were not scrupulously honored by the detectives,
and that the detectives psychologically coerced him into making an incriminating statement. He
therefore claimed that his statement should be suppressed. The State argued that the defendant
never invoked his right to remain silent because he kept reinitiating the conversation.
¶ 20 Following arguments, the trial court denied the defendant’s motion to suppress his
statement. In so ruling, the trial court addressed each of the clips played by the defendant and
found that there was never an unequivocal invocation by the defendant of the right to remain silent.
Instead, the trial court found that the defendant’s statements, viewed in context of the entire
interrogation, showed the defendant expressing frustration, and also attempting to elicit
information from the detectives, or was “part of a long running continuing narrative in which he
continue[d] to engage in a dialogue with the detectives.” The trial court also pointed out that the
defendant asked the detectives questions throughout the interrogation which showed his
willingness to engage with them. The trial court found that the defendant’s statement was not
coerced.
¶ 21 Trial
¶ 22 The defendant’s jury trial commenced, and the following pertinent evidence was presented.
The State’s opening statement averred that, on October 12, 2012, Mr. Thomas was an innocent
bystander who was inadvertently shot as he was sitting outdoors in a communal area with
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neighbors. The State argued that Mr. Thomas was shot by the defendant and his group when they
went to fight a rival gang. According to the State, the defendant’s group’s plan to fight changed as
they approached the rival gang’s territory, supposedly to avenge the beating of Marshawn Gunn,
one of the defendant’s fellow gang members. The defendant’s group of five young men had a gun
and they divided into a shooting team and a lookout team. While the lookouts stayed behind to
keep watch, the shooting team crossed the street and shot into a crowd of people, killing Mr.
Thomas. The State alleged that the defendant was part of the shooting team. 3 In his opening
statement, the defendant argued that he was not a part of the shooting team as he was unaware that
there would be a shooting; he claimed to have followed the group believing they were just going
to fight.
¶ 23 Theresa Randle testified that, on October 12, 2012, she walked to a store near 68th Street
and Stony Island Avenue. When she exited the store, she saw five men walking across the street;
one of whom she recognized from her neighborhood. Some of the men broke off from the group
and continued walking down 68th Street toward East End Avenue, while the others remained
behind and near an alley. Ms. Randle saw the two groups of men make hand gestures to each other.
She then heard several gun shots. The group that had walked away suddenly ran back toward the
alley where the other men and Ms. Randle were standing. Once the entire group of five men were
together again, they all ran away in the opposite direction. Ms. Randle continued walking in the
direction of East End Avenue, the direction from which the group of men had come. She saw an
“old man laying on the ground.” Ms. Randle spoke with police at the scene and again later that
same day when a detective came to her home. She subsequently identified co-defendant Terry
3 The State referenced which men were on “the shooting team” but never identified a shooter.
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from a photo array as one of the men who stayed back.
¶ 24 Sergeant David Hickey testified that he and Detective Garza interviewed the defendant at
the police station from February 28 to March 1, 2013. Detective Garza read the defendant his
Miranda rights, which the defendant waived, and the defendant’s ERI began. Clips from the ERI
were played, which were mostly the same clips from the motion to suppress hearing described
above in which the defendant indicated that he was part of the group that shot Mr. Thomas after a
rival gang had beaten Marshawn. 4
¶ 25 Marshawn Gunn testified that he was involved in a fight where he suffered injuries,
although he did not know who the other people were or the exact date it occurred. After the fight,
he went to the defendant’s house. He cleaned himself up at the defendant’s house and then went
home. He denied taking part in the shooting that occurred later that night.
¶ 26 After the State rested, the defendant filed a motion for a directed verdict, which was denied.
The defendant also renewed his motion to quash arrest and suppress evidence and the trial court
denied that as well. The defense then rested without presenting any evidence.
¶ 27 Following closing arguments and deliberations, the jury found the defendant guilty of first
degree murder and found that he or someone for whom he was legally responsible was armed with
a firearm.
¶ 28 Posttrial Motion
¶ 29 The defendant filed an amended motion for a new trial. The motion argued, inter alia, that
the trial court erred when it denied the defendant’s motion to quash arrest and suppress evidence
and when it denied the defendant’s motion to suppress his statement. Regarding the motion to
4 Some of the ERI clips were played during the subsequent testimony of Chicago Police Detective Kristi Battalini.
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quash arrest and suppress evidence, the defendant’s motion claimed that the trial court relied upon
his co-defendants’ statements to the police as evidence of probable cause.
¶ 30 The trial court addressed the defendant’s argument:
“The key testimony, there was numerous references to [co-defendants] Minor and
McKinzie implicating themselves and also [the defendant] as the shooter before
[the defendant]’s arrest hours later. Most notable was Officer Kilroy’s testimony *
* * that the defendant had been implicated as the shooter by co[-]defendants Minor
and McKinzie before they went to arrest [the defendant]. So there’s an abundance
of probable cause at that point and I will stand on that ruling.”
The trial court rejected the remaining arguments in the defendant’s amended motion for a new trial
and accordingly denied it.
¶ 31 Sentencing
¶ 32 During the sentencing hearing, the defendant’s presentence investigation report (PSI) was
presented. The PSI indicated that the defendant was born in 1993 and that he was raised by his
mother along with his twin brother and younger sister. The defendant had a close relationship with
his mother and siblings, although his mother has a history of substance abuse and his brother was
deceased. He grew up in a “high crime” neighborhood and joined a gang at the age of 10 “for
support.” The PSI further provided that the defendant was expelled from his high school in the 9th
grade after he was caught selling marijuana. He subsequently attended an alternative high school
until his arrest in a juvenile case.
¶ 33 In aggravation, the State presented the testimony of five Cook County Department of
Corrections officers. The testimony of the officers, supported by videotaped footage, showed that
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the defendant had been in physical altercations at the jail on several different dates; including
numerous instances where the defendant punched officers and two incidents in which he exposed
his penis to officers.
¶ 34 Sergeant Robert Garza testified that he was the detective assigned to the investigation of
Mr. Thomas’ homicide. He interviewed co-defendant McKinzie, who implicated the defendant as
the shooter in the murder.
¶ 35 Mr. Thomas’ daughter read a victim impact statement. She stated that, as a Christian, she
had to learn to forgive the defendant but that he still “must pay for [his] actions to the fullest degree
given by the law.”
¶ 36 In mitigation, the defendant’s aunt testified that the defendant always helped her and other
family members in the past. She described him as a “very nice kid” whom she loved.
¶ 37 The State noted that the conviction for first degree murder, with the possession of a firearm
addition, created a sentencing range for the defendant of 35 to 75 years. The State requested the
trial court to sentence the defendant to the maximum of 75 years, arguing that a “significant
sentence” was warranted, especially considering the defendant’s violent behavior in jail.
¶ 38 The defendant argued that his mother is a “crack addict” and that he “never really had a
dad.” He stressed that his twin brother was murdered when they were 14 years old and that he took
care of his younger sister. He asked the trial court to consider how helpful he is to his family. He
apologized to his family members who were present in court and claimed that he had grown while
awaiting trial. He also apologized to the family of Mr. Thomas, stating that he was not in the “right
state of mind” and noted his gang involvement as a problem. Additionally, he indicated that during
some of his physical altercations in the jail, the correctional officers were the aggressors.
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¶ 39 The trial court stated that it had reviewed the defendant’s PSI and considered all the
aggravating and mitigating factors. The trial court further stated: “The facts in this case were
absolutely senseless, tragic, and needless as a crime of violence,” and emphasized that Mr.
Thomas, an innocent person, was killed while sitting outside with his neighbors and enjoying a
warm fall evening. The trial court also found that the video footage that showed the defendant
“violently attacking correctional officers” was indicative of his “violent, very violent nature.” The
court told the defendant:
“Maybe there is some good in you. If that’s the case, you will have plenty of time
in prison to maybe talk to younger men about the stupidity of being involved in
gangs and where it leads you, which is typically where you are going or it leads to
the morgue. That’s where gang involvement typically takes people.”
The trial court found the defendant to be a serious danger to the people of Chicago, and ultimately
sentenced him to 65 years in prison.
¶ 40 The defendant’s motion to reconsider sentence was denied. This appeal followed.
¶ 41 ANALYSIS
¶ 42 We note that we have jurisdiction to consider this matter, as the defendant filed a timely
notice of appeal. Ill. S. Ct. R. 603 (eff. Feb. 6, 2013); R. 606 (eff. July 1, 2017).
¶ 43 The defendant presents the following issues on appeal: (1) whether the trial court erred in
denying his motion to quash arrest and suppress evidence; (2) whether the trial court erred in
denying his motion to suppress his statement; and (3) whether his sentence of 65 years is excessive.
We take each issue in turn.
¶ 44 The defendant first argues that the trial court erred when it denied his motion to quash
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arrest and suppress evidence. He claims that the police officers lacked probable cause to arrest him
because none of them had first-hand knowledge of the basis for the arrest. He emphasizes that the
police officers relied upon “assertions” by the detectives, but the State did not present any of the
detectives as witnesses during the hearing. The defendant further avers that the trial court, in
denying his motion, considered his co-defendants’ incriminating statements related to their own
pre-trial motions, which was improper since their cases were severed from his. He thus argues that
the trial court should have quashed his arrest and suppressed his subsequent incriminating
statement.
¶ 45 In reviewing a trial court’s ruling on a motion to quash arrest and suppress evidence, this
court applies a two-part standard of review. People v. Dailey, 2018 IL App (1st) 152882, ¶ 16.
“We accord great deference to the trial court’s factual findings and will reverse them only if they
are against the manifest weight of the evidence; however, we review the trial court’s ultimate
ruling on the motion de novo.” Id.
¶ 46 The defendant’s motion to quash arrest and suppress evidence argued that there was no
probable cause to justify his warrantless arrest. An arrest executed without a warrant is valid only
if supported by probable cause. People v. Grant, 2013 IL 112734, ¶ 11. “Probable cause to arrest
exists when the facts known to the officer at the time of the arrest are sufficient to lead a reasonably
cautious person to believe that the arrestee has committed a crime.” Id. The existence of probable
cause depends upon the totality of the circumstances and commonsense considerations. Id.
¶ 47 The defendant makes much of the fact that, in denying his motion, the trial court referenced
his co-defendants’ incriminating statements and avers that the trial court improperly considered
information from the other cases even though those cases were severed from his. However, Officer
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Kilroy specifically testified as to why the police arrested the defendant. According to Officer
Kilroy, they arrested the defendant, based on information from his co-defendants, that the
defendant was the shooter. Although the trial court initially mentioned statements that the
defendant’s co-defendants made “through other motions,” the court later clarified that it found
probable cause based on Officer Kilroy’s testimony that the defendant’s co-defendants had
implicated him as the shooter.
¶ 48 Indeed, Officer Kilroy testified that the detectives who were investigating the murder, told
him that it was the defendant who shot Mr. Thomas. He explained that the information was based
on “interviews with other individuals” at the police station. The trial court found that information
was sufficient to establish probable cause to justify arresting the defendant without a warrant.
Those facts are such that they would lead a reasonably prudent person to conclude that the
defendant had committed a crime. Further, it is irrelevant that the State did not call the detectives
to testify, because when police officers are working together in investigating a crime, the
knowledge of each individual member of the team constitutes the knowledge of the entire team,
and probable cause can be established from all the information collectively received. In re Edgar
C., 2014 IL App (1st) 141703, ¶ 111. Thus, we reject the defendant’s argument that the police
lacked probable cause to arrest him and therefore find that the trial court did not err in denying the
¶ 49 Next, the defendant argues that the trial court erred in denying his motion to suppress his
statement. He claims that several times during his ERI, he invoked his right to remain silent. He
points to the same clips played during the hearing on his motion and argues that the detectives did
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not scrupulously honor his requests to stop talking.5
¶ 50 “An appeal from a trial court’s ruling on a motion to suppress presents mixed questions of
fact and law.” People v. Boswell, 2014 IL App (1st) 122275, ¶ 20. This court accords great
deference to the trial court’s factual and credibility determinations and will disturb them only if
they are against the manifest weight of the evidence. Id. However, we review de novo the ultimate
legal question posed by the trial court’s ruling. Id. In our review, we may consider testimony
presented at trial, as well as that provided at the suppression hearing. People v. Petty, 2017 IL App
(1st) 150641, ¶ 21.
¶ 51 When a defendant challenges the admissibility of his confession through a motion to
suppress, the State has the burden of proving by a preponderance of the evidence that the
confession was voluntary. People v. Braggs, 209 Ill. 2d 492, 505 (2003). “The concept of
voluntariness includes proof that the defendant made a knowing and intelligent waiver of his
privilege against self-incrimination and his right to counsel.” Id. To protect an individual’s right
not to be a witness against himself, found in both the United States and Illinois Constitutions (see
U.S. Const. amend. V; Ill. Cont. 1970 art. I, § 10), interrogation must cease once the individual
indicates, at any time, that he wishes to remain silent. People v. Hernandez, 362 Ill. App. 3d 779,
785 (2005).
¶ 52 Importantly, an invocation of the right to remain silent must be unambiguous, unequivocal,
and clear. People v. Kronenberger, 2014 IL App (1st) 110231, ¶ 33. After reviewing the transcript
from the defendant’s ERI, we agree with the trial court that most of the defendant’s statements,
which he claims were an invocation of his right to remain silent, were equivocal. While the
5 Although the defendant also argued, during the hearing on his motion, that his confession was coerced by the detectives, he does not raise that argument on appeal.
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defendant points to isolated statements such as, “I just don’t want to say anything,” and “I don’t
even want to talk to ya’ll [sic] anymore,” these statements are not unequivocal invocations of his
right to remain silent when viewed in the entire context of the conversation and exchange during
which they were said. See id ¶ 37 (the interrogation should be carefully viewed within the context
of the surrounding circumstances leading up to the defendant’s response). The defendant often
continued speaking immediately after making such statements, including asking questions himself
of the detectives right after supposedly invoking his right to remain silent. Such behavior shows
that he was voluntarily engaging in the discussion.
¶ 53 In sum, when the defendant’s statements are reviewed in the entirety of their context within
the exchange with the detectives, it is clearly a back and forth in which the defendant was himself
attempting to gain information from the detectives regarding what they knew about the crime. At
other points, he expressed frustration with the process, all while continuing to talk. This behavior
did not indicate a desire to end all questioning and it certainly was not an unambiguous and
unequivocal invocation of the right to remain silent throughout most of the ERI. See id (the
invocation must be clear and specific).
¶ 54 We do find, however, that the defendant unequivocally invoked his right to remain silent
toward the end of the ERI when he said, “I don’t wanna talk no more, sir,” and actually stopped
talking at that point. That invocation was not scrupulously honored because the detectives
continued talking to the defendant about the case and did not cease the interrogation. Consider the
following statement made by one of the detectives after the defendant’s invocation:
“All right, we’ll leave it at that. You could leave it in the hand - we’ll do the lineups.
You know I - I - I don’t know what else I could tell you man. I mean I’ve been
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honest with you, I’ve been straight forward. I’m not gonna keep playin’ this game.
I stood in here longer than I wanted to and I mean you’re still bullshittin’. You don’t
wanna tell us who you were down there with.”
Arguably, any statements the defendant made after that invocation of his right to remain silent
were inadmissible. People v. Flores, 2014 IL App (1st) 121786, ¶ 58 (statements made after the
invocation of the right to remain silent are admissible only if the interrogators scrupulously
honored the defendant’s right to cut off questioning).
¶ 55 Nonetheless, even if we were to find that the trial court erred in denying the defendant’s
motion to suppress his statement from that specific point of the interrogation, we conclude that the
error was harmless. “In determining whether a constitutional error is harmless, the test to be
applied is whether it appears beyond a reasonable doubt that the error at issue did not contribute
to the verdict obtained.” People v. Patterson, 217 Ill. 2d 407, 428 (2005). To determine whether
an error is harmless, a reviewing court may (1) focus on the error to determine whether it might
have contributed to the conviction, (2) examine the other evidence in the case to see if
overwhelming evidence supports the conviction, and (3) determine whether the improperly
admitted evidence is merely cumulative or duplicates properly admitted evidence. Id.
¶ 56 If the trial court had excluded the portions of the defendant’s ERI from the point at which
the defendant made his unequivocal invocation of his right to remain silent, it would be
inconsequential because the rest of the information gathered during his ERI overwhelmingly
supports conviction. Prior to invoking his right to remain silent, the defendant implicated himself
as being part of the group that shot Mr. Thomas while seeking revenge against the rival gang for
the beating of Marshawn. The defendant’s statements made after his invocation of his right to
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remain silent were duplicative of the information which he had already shared with the detectives.
Also, Marshawn gave uncontroverted testimony that he went to the defendant’s house after he was
beaten by the rival gang and that the shooting occurred later that same night. This was additional
evidence that supported the State’s theory that the shooting occurred as a result of the defendant’s
gang attempting to avenge Marshawn’s beating by the rival gang. Thus, even without the small
portion of the defendant’s ERI after his unequivocal invocation of his right to remain silent, the
evidence against him was overwhelming. Accordingly, any error by the trial court in failing to
suppress the specific portion of the defendant’s statement after the unequivocal invocation of the
right to remain silent, is harmless. See People v. Hannah, 2013 IL App (1st) 111660, ¶ 48 (despite
the trial court’s error in denying the defendant’s motion to suppress, we find the error to be
harmless where the defendant subsequently made a second incriminating statement). We therefore
find the defendant’s argument to be without merit.
¶ 57 The final argument made by the defendant is that his sentence of 65 years’ imprisonment
is excessive. He claims that, in sentencing him to a de facto life sentence, the trial court failed to
take into consideration his young age at the time of the murder (20 years old) or his unstable
childhood. In support of his argument, he cites to recent case law from this court which focuses on
the brain development of emerging young adults and how that impacts sentencing.
¶ 58 A sentence within the appropriate sentencing range is generally accorded great deference
by this court. People v. Colon, 2018 IL App (1st) 160120, ¶ 65. We will not alter a defendant’s
sentence absent an abuse of discretion. Id. “Our supreme court has found that, with respect to a
sentence, an abuse of discretion occurs when the sentence is greatly at variance with the spirit or
purpose of the law or manifestly disproportionate to the nature of the offense.” Id.
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¶ 59 The sentencing range in this case was 35 to 75 years, and so the defendant’s 65-year
sentence falls within that range and is therefore presumed to be proper. See People v. Knox, 2014
IL App (1st) 120349, ¶ 46. The defendant nevertheless argues that the trial court failed to consider
some important mitigating factors, especially his youth and upbringing. Yet, the record shows that
the trial court did carefully review the defendant’s PSI and consider all the relevant mitigating
factors. In fact, in imposing the defendant’s sentence, the trial court explicitly stated that it
considered all the mitigating factors. And the trial court was not required to articulate each and
every factor that it considered but that does not mean that it did not take all the important and
relevant factors into account. See Jones, 2019 IL App (1st) 170478, ¶ 54 (when mitigating factors
have been presented to the trial court, it is presumed the court considered those factors, absent
some indication to the contrary).
¶ 60 Further, the record shows that the defendant’s sentence reflects the significant
consideration of his violent behavior in jail while he was awaiting trial. And the trial court
emphasized the seriousness of the crime, which is the most important factor. People v. Busse, 2016
IL App (1st) 142941, ¶ 28. It therefore cannot be said that the trial court abused its discretion in
sentencing the defendant and we affirm his sentence of 65 years’ imprisonment.
¶ 61 We note that, while the defendant cites to recent cases where this court found de facto life
sentences to be unconstitutional for young adult offenders pursuant to the Illinois Proportionate
Penalties Clause, the defendant does not allege that his sentence is unconstitutional.
¶ 62 CONCLUSION
¶ 63 For the foregoing reasons, we affirm the judgment of the circuit court of Cook County.
¶ 64 Affirmed.
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