People v. Jenkins

• Decision Date: 26 August 2002
• Docket Number: No. 1-01-0073.,1-01-0073.
• Citation: 267 Ill.Dec. 383,333 Ill. App.3d 534,776 N.E.2d 755
• Parties: The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Marcus JENKINS, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

776 N.E.2d 755

333 Ill. App.3d 534

267 Ill.Dec. 383

The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Marcus JENKINS, Defendant-Appellant.

No. 1-01-0073.

Appellate Court of Illinois, First District, First Division.

August 26, 2002.

Rita A. Fry, Public Defender of Cook County (Timothy J. Leeming, Assistant Public Defender, of counsel), Chicago, for Respondent-Appellant.

Richard A. Devine, State's Attorney of Cook County (Renee Goldfarb, Alan J. Spellberg and Aaron R. Bond, Assistant State's Attorneys, of counsel), Chicago, for Petitioner-Appellee.

Presiding Justice COHEN delivered the opinion of the court:

Juvenile defendant Marcus Jenkins was tried as an adult before a jury and convicted of first degree murder (720 ILCS 5/9-1(a)(1) (West 1998)) in the gang-related shooting death of 79-year-old Edna Dela Rosa. The trial court sentenced Jenkins to a term of 50 years' imprisonment. Jenkins appeals both his conviction and sentence, arguing that: (1) inculpatory statements to police should have been suppressed as involuntary; (2) the prosecution made improper and prejudicial comments during closing argument; and (3) his 50-year term of imprisonment is excessive and must be reduced. We affirm.¹

ANALYSIS

I. Motion to Suppress

Jenkins first argues that his initial statement to police should have been suppressed as involuntary because: (1) it was made shortly after his 3 a.m. arrest; (2) he did not sign a waiver of rights form; and (3) "a youth officer, parent, attorney or family member was not present when he first confessed." Jenkins does not argue that his subsequent statements to police were involuntary in and of themselves; rather, Jenkins argues that because his initial statement was involuntary, his subsequent statements to police should be suppressed as "fruit of a poisonous tree."

"As a general rule, this court will reverse a trial court's denial of a motion to suppress statements only if that ruling is manifestly erroneous. [Citation.] In this case, however, de novo review is appropriate, as neither the facts nor the credibility of the witnesses is at issue." People v. Nielson, 187 Ill.2d 271, 286, 240 Ill.Dec. 650, 718 N.E.2d 131 (1999).

The "fruit of the poisonous tree" doctrine applies only where evidence is obtained in violation of a defendant's constitutional rights. People v. Winsett, 153 Ill.2d 335, 353, 180 Ill.Dec. 109, 606 N.E.2d 1186 (1992). Evidence discovered by virtue of a statement obtained in violation of a constitutional right must be suppressed. Winsett, 153 Ill.2d at 353,180 Ill.Dec. 109,606 N.E.2d 1186. A statement is obtained unconstitutionally where it is involuntary. People v. Gonzalez, 313 Ill.App.3d 607, 615, 246 Ill.Dec. 509, 730 N.E.2d 534 (2000). Thus, in order to suppress Jenkins' subsequent statements, we must find not only that his initial statement to police was involuntary, but that Jenkins' subsequent statements were obtained "by virtue" of his initial statement. Gonzalez, 313 Ill. App.3d at 615,246 Ill.Dec. 509,730 N.E.2d 534.

The record reflects that during a hearing on Jenkins' motion to suppress, the defense was granted leave of court to present its witnesses prior to the prosecution's. The defense first presented several of Jenkins' fellow gang members, all of whom offered substantially similar testimony to the effect that Jenkins had been drinking alcohol and smoking marijuana in their company until intoxicated the night before his 3 a.m. arrest on August 27, 2000.

Jenkins' cousin, Faye Jenkins, then testified that she received a telephone call from police around 3 a.m. on August 27, 2000, asking her to reach Jenkins' mother, Gloria Jenkins, who had no telephone. Faye stated that she then went to Gloria's apartment (in the same building) to inform Gloria of the call. Gloria accompanied Faye to Faye's apartment to return the call, did so, then left the apartment. Faye concluded that Gloria was intoxicated at the time based on Gloria's glazed eyes, slurred words and the smell of liquor on Gloria's breath.

Chicago police officer Timothy O'Brien then testified for the State. Officer O'Brien testified that when he arrested Jenkins and led him to a squad car around 3 a.m. on the morning of August 27, 2000, Officer O'Brien detected no odor of alcohol about Jenkins' person, nor did Jenkins' eyes appear bloodshot.

Believing Jenkins to be a juvenile, Officer O'Brien proceeded according to protocol and attempted to contact Jenkins' parents and inform them of their son's arrest. After knocking on the door to Jenkins' apartment and receiving no response, Officer O'Brien went to Faye's apartment. In the hall outside her apartment, Officer O'Brien informed Faye that Jenkins was being taken to Area Four police headquarters for questioning in a murder investigation. Officer O'Brien provided Faye with his name, star number and the headquarters telephone number and asked Faye to contact Jenkins' parents.

Officer O'Brien then returned to the squad car and informed Jenkins that he had just spoken to Faye. Officer O'Brien testified that it was at this point that Jenkins stated without being asked that "he knew why we were looking for him, he knew why we were there and that he knew the location of a weapon that we were looking for."² Jenkins then offered to lead Officer O'Brien and his partner, Officer Neil Schulz, to the weapon. When the officers allowed Jenkins to exit the squad car, Jenkins led them into an apartment building at 1170 West Erie, up to the ninth floor, into a utility closet/incinerator room and indicated that the gun could be found on top of an electrical junction box above the officers' line of sight. Officer O'Brien then reached up and ran his hand over the top of the junction box, causing a chromeplated.380 semi-automatic pistol to fall to the floor. The pistol was later identified through ballistics analysis as the murder weapon.

Jenkins was then taken to Area Four police headquarters, transferred to investigating Detectives Alphonso Bautista and Paul Lopez and seated in a roll-call room. Around 4 a.m., an hour after Jenkins' arrest, Detectives Bautista and Lopez prepared to interview Jenkins. The detectives first advised Jenkins of his Miranda rights and informed Jenkins that he could be charged and tried as an adult despite his juvenile status. They then inquired as to the name and location of Jenkins' legal guardian. Jenkins responded that he understood each of his legal rights and told the detectives that his mother, Gloria Jenkins, was his legal guardian, although he did not know how she might be reached.

Detective Bautista testified that at this point, he and Officer O'Brien were about to leave the roll-call room when Jenkins "said something to the effect of I know why I was picked up, I'll tell you what happened, something to those words, and proceeded to [relate the details of the shooting]." Essentially, Jenkins admitted to shooting repeatedly at two members of a rival gang. Neither Detective Bautista nor Officer O'Brien asked Jenkins any direct questions once Jenkins began to speak about the shooting. Detective Bautista observed that Jenkins appeared saddened while relating these events, but was alert and provided detailed descriptions.

Following argument by counsel, the trial court ruled:

"I find that the defendant was not intoxicated. I find that the evidence supports the State's position. And I so find that he was coherent and was not intoxicated at the time of the giving of the statement.

I also find that initial contact with the defendant was not that of an interrogation, and I further find that statement was voluntarily made and that the police complied with the notification of the mother * * * and therefore the motion to suppress the statements is respectfully denied."

We first note that Jenkins offers no authority to support his argument that Jenkins' failure to sign a waiver of rights form rendered his statement involuntary. This argument is thus waived. People v. Ford, 301 Ill.App.3d 56, 59, 234 Ill.Dec. 575, 703 N.E.2d 436 (1998); 155 Ill.2d R. 341(e)(7).

Our supreme court has dictated that in order to determine whether Jenkins' initial statement to Detective Bautista and Officer O'Brien was voluntary, this court must look to the totality of the circumstances. In re G.O., 191 Ill.2d 37, 54, 245 Ill.Dec. 269, 727 N.E.2d 1003 (2000). Factors to consider include Jenkins'"age, intelligence, background, experience, mental capacity, education, and physical condition at the time of questioning; the legality and duration of the detention; the duration of the questioning; and any physical or mental abuse by police, including the existence of threats or promises." G.O., 191 Ill.2d at 54, 245 Ill.Dec. 269, 727 N.E.2d 1003. No single factor is dispositive. G.O., 191 Ill.2d at 54, 245 Ill.Dec. 269, 727 N.E.2d 1003. Whether Jenkins was able to confer with a "concerned adult," either before or during interrogation, may also be relevant to determining whether his confession was voluntary. G.O., 191 Ill.2d at 55, 245 Ill.Dec. 269, 727 N.E.2d 1003. Predicated on consideration of these factors, the "test of voluntariness is whether [Jenkins] `made the statement freely, voluntarily, and without compulsion or inducement of any sort, or whether [Jenkins'] will was overcome at the time he * * * confessed.'" G.O., 191 Ill.2d at 54, 245 Ill.Dec. 269, 727 N.E.2d 1003, quoting People v. Gilliam, 172 Ill.2d 484, 500, 218 Ill.Dec. 884, 670 N.E.2d 606 (1996).

An examination of the record reveals that Jenkins was 16 years of age at the time of his arrest. The record also reflects that Jenkins had prior contact and experience with the justice system in the form of a previous felony arrest. Evidence adduced at the suppression hearing indicates that Jenkins was sober, alert and in no physical distress when he spoke with the police. Jenkins does not dispute the legality of his arrest, does not allege that the police made any threats to compel or...