People v. Austin

• Decision Date: 26 November 1997
• Docket Number: No. 1-96-2864,1-96-2864
• Citation: 688 N.E.2d 740,228 Ill.Dec. 42,293 Ill.App.3d 784
• Parties: , 228 Ill.Dec. 42 The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Donell AUSTIN, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 740

688 N.E.2d 740

293 Ill.App.3d 784, 228 Ill.Dec. 42

The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Donell AUSTIN, Defendant-Appellant.

No. 1-96-2864.

Appellate Court of Illinois,

First District, Sixth Division.

Nov. 26, 1997.

State Appellate Defender, Chicago, and James Geis, Chicago, for Defendant-Appellant.

Richard A. Devine, State's Attorney, Chicago (Renee Goldfarb, Alan J. Spellberg, Scott A. Herbert, of counsel), for Plaintiff-Appellee.

Presiding Justice GREIMAN delivered the opinion of the court:

Following a bench trial, defendant was convicted of first degree murder, armed robbery, and conspiracy to commit first degree murder. Defendant now challenges those convictions, raising three issues: (1) whether the trial court erred in refusing to suppress his confession by reason of its attenuation subsequent to defendant's unlawful arrest; (2) whether the evidence supports the convictions; and (3) whether the trial court erred in imposing consecutive sentences.

For the reasons that follow, we hold that the trial court erred in refusing to suppress defendant's confession. We reverse the conviction and remand for a new trial.

On November 16, 1992, Rufus Simpson was found murdered. He had been shot in the back of the head twice. Simpson's vehicle and some other property were missing from his home. More than two months later, on January 23, 1993, police recovered the remains of the burned-out vehicle near the residence of Bobby Walley. Detective Michael Flemming reviewed telephone records, which indicated that phone calls had been made between Eric Watkins' residence (stepson of the victim), the victim's residence, and Bobby Walley's residence. On January 27, 1993, Fleming and another officer observed defendant, Jamal Dorrough, Kevin Taylor, and Bobby Walley leave Walley's residence. At approximately 2:30 p.m., the officers brought the four men to the police station and placed them in separate interview rooms.

At 3:30 p.m., Fleming spoke with Taylor. Taylor denied any knowledge of the homicide. At 3:45 p.m., Fleming spoke with Dorrough after advising him of his Miranda rights. Dorrough made no admissions. At 4 p.m., Fleming spoke with Walley after administering the Miranda admonition. This conversation lasted approximately 15 minutes, during which time Walley made no admissions. At 4:15 p.m., Fleming spoke with defendant after reading defendant his rights against self-incrimination. That conversation also lasted approximately 15 minutes; defendant made no admissions.

At 4:30 p.m., Fleming had a second conversation with Taylor, who admitted knowledge of the homicide, stating that he had a conversation with Dorrough a week after the homicide in which Dorrough stated that the victim was dead and that "they" had done it, meaning defendant, Dorrough, Walley, and Eric Watkins. Taylor also stated that he had a conversation with Watkins wherein Watkins told him that they had done the killing. Taylor acknowledged that he was at Walley's residence prior to the murder and heard a conversation in which Watkins stated that he wanted his stepfather killed.

At 5 p.m. Fleming had a second conversation with Dorrough and confronted him with Taylor's statements. Dorrough stated that he was part of the conversation in which Watkins indicated that he wanted to have his stepfather killed and further admitted being present when Simpson was killed. He identified defendant as the shooter and described how it was accomplished. He admitted taking property from the residence.

At 5:30 p.m. Fleming spoke with Walley again, confronting him with the statements from Taylor and Dorrough. Walley then confessed his involvement with the homicide.

At 6 p.m. Fleming spoke with defendant again. He told defendant of the other conversations. Defendant did not make a statement regarding his involvement.

Between 6:30 p.m. and 7:30 p.m., Fleming had further communication with Dorrough and Walley, learning additional facts. At 7:30 p.m. Fleming had a third conversation with defendant, confronting him with the additional facts. Defendant at first conceded that he was at the victim's house at the time of the shooting and admitted taking property. He then admitted he did the shooting.

Defendant, Jamal Dorrough, Bobby Walley, and Eric Watkins were all charged with the murder. No charges were brought against Taylor. Defendant and Walley moved to quash their arrests and suppress their confessions. Those motions were heard on September 7, 1994, and September 26, 1994, with the motions to quash sustained and their confessions suppressed. Thereafter, the State requested an attenuation hearing and the matter was heard on October 20, 1994.

On April 19, 1995, Dorrough filed a motion to quash and suppress evidence. On August 8, 1995, Dorrough's motion to quash was sustained. Again, the State requested an attenuation hearing. The parties stipulated to the testimony given on September 7 and 26, and October 20, 1994, for the purposes of determining whether Dorrough's statement was attenuated.

On September 7, 1995, the trial court found defendant's, Dorrough's, and Walley's confessions attenuated from their illegal arrests. The court found that the statements obtained from Taylor sufficiently attenuated Dorrough's confession. The court next found Walley's confrontation with the statements of Taylor and Dorrough provided an intervening circumstance so as to purge the taint of his illegal arrest. Similarly, the court found defendant's confrontation with the statements of Taylor, Dorrough, and Walley also provided an intervening circumstance sufficient to purge the taint of his illegal arrest.

After a bench trial, the court found defendant guilty of first degree murder, conspiracy to commit first degree murder, and armed robbery. He was sentenced to consecutive commitment terms of 55 years for murder and 25 years for armed robbery.

On appeal, defendant argues that the trial court erred in finding that his confession was attenuated and in refusing to suppress his confession. This court will not disturb a trial court's decision on a motion to quash and suppress unless that decision is determined to be clearly erroneous. People v. Foskey, 136 Ill.2d 66, 76, 143 Ill.Dec. 257, 554 N.E.2d 192 (1990). When neither the facts nor the credibility of witnesses is questioned, and the issue is a question of law, this court reviews de novo. Foskey, 136 Ill.2d at 76, 143 Ill.Dec. 257, 554 N.E.2d 192.

The State argues that the trial court erred in concluding that defendant was illegally arrested. Defendant contends the State is precluded from raising this issue at this time because it failed to properly appeal this issue. Even if this issue is properly before this court, we could not reverse the trial court's finding. We see no error in the trial court's determination that the officers lacked probable cause to arrest defendant when they picked him up on the street. See People v. Williams, 164 Ill.2d 1, 11-12, 206 Ill.Dec. 592, 645 N.E.2d 844 (1994) (setting forth probable cause analysis).

The determination that defendant was subjected to an illegal arrest does not resolve the question of whether his confession should have been admitted. People v. Foskey, 136 Ill.2d 66, 85, 143 Ill.Dec. 257, 554 N.E.2d 192 (1990). A confession obtained after an illegal arrest may be admissible, if the court determines that it was obtained by means sufficiently distinguishable to be purged of the taint of the illegal arrest. People v. White, 117 Ill.2d 194, 222, 111 Ill.Dec. 288, 512 N.E.2d 677 (1987). The court should consider several factors: (1) the proximity in time between the arrest and the confession; (2) the presence of intervening circumstances; (3) the purpose and flagrancy of the police misconduct; and (4) whether Miranda warnings were given. Foskey, 136 Ill.2d at 85-86, 143 Ill.Dec. 257, 554 N.E.2d 192, citing Brown v. Illinois, 422 U.S. 590, 603-04, 95 S.Ct. 2254, 2261-62, 45 L.Ed.2d 416, 426-28 (1975). The prosecution bears the burden of demonstrating sufficient attenuation. Foskey, 136 Ill.2d at 86, 143 Ill.Dec. 257, 554 N.E.2d 192 (finding sufficient attenuation); White, 117 Ill.2d at 222, 111 Ill.Dec. 288, 512 N.E.2d 677 (finding insufficient attenuation).

There is no dispute that appellant was given appropriate Miranda warnings. Miranda warnings alone, however, cannot always make the act sufficiently a product of free will to break the causal connection between the illegality of an arrest and a confession. People v. Graham, 214 Ill.App.3d 798, 813, 158 Ill.Dec. 161, 573 N.E.2d 1346 (1991).

There is no dispute that approximately five hours elapsed between the time of appellant's illegal arrest and the time of his inculpatory statement. The mere passage of time alone, however, is not sufficient to purge the taint of an illegal arrest. Graham, 214 Ill.App.3d at 813, 158 Ill.Dec. 161, 573 N.E.2d 1346.

Although the police conduct here was technically improper, the officers had some evidence suggesting a nexus between the Walley residence and the murder, and nothing would suggest that their conduct was flagrant. However, nothing in this record suggests a reason to validate an otherwise illegal arrest.

The key issue is to examine what, if any, intervening events occurred between the illegal arrest and the statement. Graham, 214 Ill.App.3d at 813, 158 Ill.Dec. 161, 573 N.E.2d 1346; People v. Turner, 259 Ill.App.3d 979, 992, 197 Ill.Dec. 777, 631 N.E.2d 1236 (1994). The trial court found that the statements of Taylor, Dorrough, and Walley implicating defendant in the murder provided a sufficient intervening event so as to attenuate defendant's illegal arrest from his statement. We disagree.

"An intervening circumstance is one that dissipates the taint of unconstitutional police conduct by breaking the causal connection between the illegal conduct and the confession." Turner, 259 Ill.App.3d at 993, 197 Ill.Dec. 777, 631 N.E.2d 1236. "The...