People v. Johnson

• Court: Appellate Court of Illinois
• Writing for the Court: MANNING
• Citation: People v. Johnson, 603 N.E.2d 624, 236 Ill.App.3d 125, 177 Ill.Dec. 554 (Ill. App. 1992)
• Decision Date: 28 September 1992
• Docket Number: No. 1-89-3194,1-89-3194
• Parties: , 177 Ill.Dec. 554 The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Tony JOHNSON, Defendant-Appellant.

Page 624

603 N.E.2d 624

236 Ill.App.3d 125, 177 Ill.Dec. 554

The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Tony JOHNSON, Defendant-Appellant.

No. 1-89-3194.

Appellate Court of Illinois First District, First Division.

Sept. 28, 1992.

Office of Public Defender of Cook County, Randolph N. Stone (Donald S. Honchell Asst. Public Defender, of counsel), Chicago, for defendant-appellant.

Office of State's Atty., Cook County, Jack O'Malley (Renee Goldfarb, Mary Brigid Kenny and Roseanne McDonnell, Asst. State's Attys., of counsel), Chicago, for plaintiff-appellee.

Justice MANNING delivered the opinion of the court:

The defendant, Tony Johnson, was convicted in a jury trial of the murder of Walter Brefford and of residential burglary of Mr. Brefford's home. The trial court sentenced defendant to concurrent terms of 35 years imprisonment for the murder and 10 years imprisonment for residential burglary.

On review, defendant raises six issues. First, he contends that the State failed to sustain its burden of proving defendant's statements were voluntary and admissible in light of (1) the arresting officer's failure to attempt to notify defendant's parents or to take defendant to a juvenile officer before his first interrogation and (2) his failure to take defendant to the available youth officer before the second interrogation. He next maintains that the court erred in rejecting his claim that his written confession was involuntary due to the taint of his prior oral statements. Defendant also asserts that the court erred in giving State proffered instructions to the jury which related to a defense which he had not raised, and the court also erred when it refused defense instructions to the jury on voluntary manslaughter.

Defendant claims that he was deprived of a fair trial due to the prosecutor's improper erroneous and highly prejudicial rebuttal argument. Finally, defendant contends that the court improperly instructed the jury on the law that it could convict defendant of felony murder since the homicide occurred during the commission of residential burglary.

Hearing on the Motion to Suppress

Prior to trial, defendant moved to suppress his oral and written statements to the authorities on the basis that he was a juvenile and the arresting officers violated the Juvenile Court Act. (Ill.Rev.Stat.1985, ch. 37, par. 703-2.) He contends that the arresting officers failed to notify his mother about the arrest and failed to provide him with a youth officer prior to questioning him at the courthouse immediately following his arrest. Additionally, there was no youth officer present during police questioning of defendant at the police department.

The State presented the testimony of three witnesses: one of the arresting officers, Detective Michael Kill; assistant State's attorney, William Lacy; and youth officer Patrick Danaher. Detective Kill testified that on September 26, 1986, at approximately 11 a.m. he arrested defendant on a warrant in a hallway outside a juvenile courtroom and took defendant to a small room away from the corridor. At that time he read defendant Miranda warnings and inquired if defendant understood them. The defendant responded "yes" to each of his rights individually. He also informed defendant that any statements made by him could be used to charge and prosecute him as an adult. While Detective Kill and his partner Detective Thomas Byron escorted defendant to a police vehicle parked outside the building, defendant made no denial of involvement, but explained what had happened.

They arrived at the third district station at approximately 11:40 a.m. and defendant was placed in an interview room. Detective Kill had spoken to defendant's mother on several occasions in the past month and attempted on the day of the arrest to reach her by telephone but was unsuccessful. He then informed youth officer Danaher of the situation and about five minutes later, received a call from defendant's mother, Mrs. Johnson. In that conversation Detective Kill told Mrs. Johnson that the defendant was in custody at the station and she could come into the station. Mrs. Johnson allegedly responded that she would come when she was ready.

Detective Kill then returned to the interview room and again informed defendant of his rights. Only the defendant and Detective Kill were in the room when defendant repeated information which he had earlier related to the police. During this discussion which continued until 12:15, defendant gave more details. Detective Kill also asked Detective Byron to contact the State's attorney's office, and the police then obtained lunch for defendant.

Assistant State's attorney William Lacy arrived at the station at 12:30, spoke with the officers and reviewed the police reports. At about 1 p.m. Lacy interviewed defendant in the presence of Detective Kill and youth officer Danaher. An hour later, defendant provided another statement that was recorded by a stenographer and the written statement was then approved and corrected by defendant and witnessed by Detective Kill, Lacy and Danaher. Detective Kill also stated that defendant never made any requests to call his mother and denied that he or Detective Byron promised defendant leniency or release from custody in exchange for his statements.

Lacy's testimony was substantially similar to that of Detective Kill. He stated that when he first entered the room around 1 p.m. the defendant, youth officer Danaher and Detective Kill were present. He advised defendant that he was an assistant State's attorney and a lawyer who worked with the police, but he was not defendant's lawyer. He informed defendant of his rights and inquired if he understood those rights prior to any conversations. Defendant acknowledged that he understood his rights. Lacy then took the statement, read it out loud to defendant after it was transcribed, and at the end of each page asked if he wanted to make any changes or corrections. Defendant made some corrections, initialling each one and each page and signed the last page. Lacy also asked whether anyone threatened or promised to give defendant anything "in order to give this statement" and defendant responded "No." Defendant never requested to call his mother.

Youth officer Danaher's testimony also corroborated the testimony of Detective Kill. He testified that he was the youth officer in the area and that Detective Kill told him defendant was in custody and that they might need a youth officer to sit with the assistant State's attorney. He was present in the interview room with defendant, Lacy and Detective Kill and heard Lacy advise defendant of his rights. Danaher was also present when defendant made another statement in the presence of a court reporter. Danaher acknowledged that he never asked defendant any questions.

Following the court's denial of defendant's motion for a directed finding, the defense called Mrs. Johnson as a witness. Mrs. Johnson testified that the police first contacted her about her son on August 29, 1986, and thereafter contacted her or someone in her home on several occasions; however, no-one contacted her on the 26th, 27th, or 28th of September. Instead, she learned of defendant's arrest from "people in the neighborhood." On cross-examination, Mrs. Johnson admitted lying to the police about defendant's whereabouts and prior knowledge of defendant's detainment at the Audy Home on September 11, 1986.

Defendant testified that he was 16 years old on September 26, 1986, at the time of his arrest at the Juvenile court. At the police station, defendant was shown some pictures which he recognized. He also was asked if he committed murder to which the defendant did not respond, but asked to "call his mama." One of the officers, not Detective Kill, told defendant he would not be locked up if he told them what happened. Defendant stated that he then changed his statement and the officers again left the room; but, he was never advised of his rights until the State's attorney arrived. On cross-examination, defendant admitted that he never told youth officer Danaher or Lacy that the police had made promises to him. He also admitted acknowledging during the interrogation that he had been treated well by the police and given food and drink. Although defendant was taken into custody at the Audy Home on the day of his arrest, he did not call his mother until 2 a.m. on September 27, 1986, at which time no one answered.

Detective Byron was called as a rebuttal witness. He testified that he was with Detective Kill when defendant's mother telephoned the station. He also called the State's attorney's office and got a sausage sandwich and milk for defendant. No promises or threats were ever made to defendant and defendant did not make any requests to call his mother.

The court found that the police attempted to locate the parents of defendant and that the police were not under an obligation to wait until they were found to continue with their investigation. The court determined that "the police attempted to conform to the requirements of the statute by contacting the parent of the defendant which is all that is required in the statute." The court also found that defendant's statements were made voluntarily without coercion and the motion to suppress was denied.

Defendant first contends because the State failed to show proper concern for his rights and needs as a juvenile pursuant to the Juvenile Court Act, his statements to arresting officer Kill should have been suppressed. Defendant urges that the State did not sustain its burden of proof based upon the totality of the circumstances that his will to resist confessing was not overborne by factors of fright, overreaching or ignorance. (People v. Berry (1984), 123 Ill.App.3d 1042, 79 Ill.Dec. 490, 463 N.E.2d 1044.) Defendant argues that the trial court's finding of voluntariness is against the manifest weight of the evidence and he asks ...