People v. Avery

• Decision Date: 15 February 1989
• Docket Number: No. 86-2418,86-2418
• Citation: 128 Ill.Dec. 691,180 Ill.App.3d 146,534 N.E.2d 1296
• Parties: , 128 Ill.Dec. 691 The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Steven AVERY and Ramsey Lewis, Defendants-Appellants.
• Court: United States Appellate Court of Illinois

Page 1296

534 N.E.2d 1296

180 Ill.App.3d 146, 128 Ill.Dec. 691

The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Steven AVERY and Ramsey Lewis, Defendants-Appellants.

No. 86-2418.

Appellate Court of Illinois First District, Third Division.

Feb. 15, 1989.

Randolph N. Stone, Public Defender, Chicago (Hugh Stevens, Asst. Public Defender, of counsel), for defendants-appellants.

Richard M. Daley, State's Atty., Chicago (Inge Fryklund, Patricia Y. Brown and Lauren E. Brown, of counsel), for plaintiff-appellee.

Justice McNAMARA delivered the opinion of the court:

Defendants Steven Avery and Ramsey Lewis were found guilty of murder following a bench trial. The trial court sentenced Avery to a term of 20 years imprisonment, and sentenced Lewis to a term of 23 years imprisonment. Defendants appeal, contending that the trial court erred in not suppressing their confessions after finding they were arrested without probable cause; and that they were not proved accountable for the murder beyond a reasonable doubt.

Nathaniel Corley, a 16-year old, was shot and killed at 2:15 a.m. on March 3, 1985. Defendants were subsequently charged along with Tracy Stofer. Avery and Lewis accused Stofer of shooting Corley; and Stofer countered that he drove the car and either Lewis or Avery shot Corley. Stofer's motion for severance was granted. (Stofer was also convicted, and this court has reversed that conviction and remanded for further proceedings. People v. Stofer, (1989), 180 Ill.App.3d 158, 128 Ill.Dec. 682, 534 N.E.2d 1287.)

A joint hearing was held on the three codefendnats' motions to suppress their statements made to the police. After the initial hearing, the trial court ruled that defendants were not under arrest when they were first taken to the police station for questioning. After two to four hours at the station, defendants were placed under arrest, but without probable cause. After a second hearing, the trial court concluded that the few hours between the illegal arrest without probable cause and the first inculpatory statement by Lewis, when probable cause to arrest arose, was sufficient to purge any taint. Thus, the motions to suppress defendants' statements were denied.

At the hearing on the motions to suppress, Stofer testified that on March 3, 1985 at 11:00 a.m., the police arrived at his home, and took him down to the station to question him about the murder. Stofer told the officers that he had been at a party with Lewis and Avery the previous night.

Officers Barry Costello and John Yucaitas testified about the investigation and arrests. The shooting occurred at 2:15 a.m. The victim's mother informed Yucaitas of the names of Corley's friends. At 9:00 a.m., three of those friends, Eric Tate, Harry Elligan, and Tony Flemming, were brought to headquarters for questioning. They were separated. Tate told Yucaitas that on the night of the murder, the victim had told Tate, "Watch your back. Someone might shoot you." Tate and the victim left a dance and walked to McDonald's. At the dance, at McDonald's, and at a friend's house later, Tate saw three males in a gray, 2-door Ford Escort hatchback, with papers in the window indicating the car was new. The car drove very slowly and appeared to be following them. Elligan told Yucaitas that he last saw the victim on Elligan's front porch at 2:00 a.m., talking with Elligan's cousin. Yucaitas gave this information to Dignan and Costello, who took over the investigation at about 10:00 a.m.

Dignan testified that on that day he and Costello interviewed Flemming. Flemming said that on the night before the March 3 murder, he and the victim were accosted by two black males. Flemming said he would try to find out their names. Flemming telephoned within an hour to report that he and a friend had looked through the high school year book. They identified Stofer as one of the males who had chased them with a pole the night before the shooting.

Dignan and Costello went to Stofer's home, where they saw a gray Ford matching the description given by Tate. The officers took Stofer to the station for questioning. Stofer told the police that he had nothing to do with the murder, and did not know Corley. On the previous night he had been driving around in the gray Ford hatchback along with Thomas Leatherwood and defendants. The officers left to find defendants.

At 1:00 p.m., Dignan and Costello went to Lewis' home, and a boy on the street pointed out where Lewis was standing on a porch. The officers told Lewis they wanted to talk to him about Corley's shooting. He agreed to go to the police station, where they spoke with Lewis in an interview room. Lewis informed the police that he and Stofer had been at a party, and then drove around in the Ford until about 1:30 a.m. The officer told Lewis that Stofer gave a different version which mentioned other boys. Lewis agreed that Avery and Leatherwood were with them. The officers told Lewis "that we wanted to talk with Steven Avery, and we told him we'd get back to him." Lewis was left in the interview room with the door open. He was not told he could leave, or that he should remain, and was not handcuffed.

At 3:00 p.m., Dignan and Costello found Avery at his home. The officers told Avery's mother they were investigating the Corley shooting, and that Stofer and Lewis were at the station, and they wanted to talk to Avery about the previous night's events. At the station, Avery told the police that on the previous night he was driven home at about 11:30 p.m. by Stofer, and he then went to bed. The officers told Avery that his friends reported a completely different story. Avery denied being with Leatherwood or Lewis.

At that time, about 5:00 p.m., all three codefendants were placed under arrest and given their Miranda rights for the first time. Prior to that, they had not been booked or processed in any way. The officers then spoke to defendants several times after the arrests. At one point, Avery began crying and stated that he was fearful of being killed if he spoke about the murder. At about 7:00 p.m., Lewis made statements incriminating the three codefendants.

At 8:00, Costello returned to Stofer, and stated that defendants accused Stofer of shooting Corley. Stofer stated that he saw the victim on the street and defendants exited Stofer's car and confronted Corley. Stofer exited the car, heard several shots, and then they all returned to the car. Avery or Lewis later threw the gun out the window.

At 9:45 p.m., a formal court-reported statement was taken from Lewis. At 10:17 p.m., Avery's statement was taken. At 11:03 p.m., Stofer's formal statement was taken.

Dignan admitted that a progress report stated Lewis was arrested at 1:00 p.m. at his home address. The progress report stated that Avery was arrested at 3:00 p.m. near his home address. Dignan explained that those were the times and locations where defendants were "taken into our custody."

The trial court held that there was no arrest when Avery was picked up at his home and Lewis on the street. The court relied on several factors as indications that the police did not manifest an intent to arrest defendants when they asked them to come to the station. The court pointed out that the police did not search defendants, handcuff them, give them Miranda rights, fingerprint them, or photograph them. The court found, however, that the stationhouse arrest at 5:00 p.m. was without probable cause.

At a separate attenuation hearing, Dignan testified that after the three codefendants gave conflicting stories, they were arrested. Subsequently, he spoke with Avery, who began crying. Avery said, "I knew this would happen. If I tell you, they will kill me." Dignan informed Costello that Avery was upset, and Avery was then taken downstairs to the lockup to give him time to compose himself. After Avery was fingerprinted and photographed, Dignan took him back to the interview room.

Costello then informed Dignan that Lewis reported he had participated in Corley's murder, and that Stofer and Avery had gotten out of the car and shot and killed Corley. Costello showed Dignan handwritten notes signed by Lewis. Dignan then returned to Avery. He gave Avery his Miranda rights and then showed Avery the statement signed by Lewis.

Avery stated to Dignan that the three codefendants followed Corley around the neighborhood during the night of the shooting. They located Corley. Avery first said that Stofer and Lewis got out of the car alone and he remained behind. He heard gunshots and Lewis and Stofer returned to the car. Stofer said, "I think I got him."

Avery then said, "Wait a minute. I want to tell you the truth. I don't want to lie. Lewis Ramsey [sic] was not telling the whole truth. We all got out of the car, all three of us." They caught up with the victim by a viaduct. Stofer pulled out a gun. Corley looked at Stofer, raised his hands and said, "No, wait a minute. Wait a minute. Hold on." Avery began to turn around, and looked back and saw Stofer fire four times. They ran back to the car and Stofer said, "I think I got him." Avery stated further that he did not know Corley had a gun.

Costello returned to talk with Lewis and confronted him with Avery's latest statement. Lewis agreed that all three men got out of the car and confronted the victim, and that Stofer had shot and killed Corley.

Costello then returned to Stofer and confronted him with defendants' statements. Stofer stated that they approached Corley by the viaduct and saw him reach into his pocket. Stofer then heard shots coming from both sides. They ran back to the car and at some point either Lewis or Avery threw the gun out the passenger's window. Subsequently, all three codefendants gave court-reported statements to an assistant State's Attorney.

The trial court determined that sufficient intervening factors occurred to purge the statements of the taint of the illegal arrests.

At trial, Tate testified that on ...