People v. Lash

• Decision Date: 22 February 1993
• Docket Number: No. 1-91-2920,1-91-2920
• Citation: 624 N.E.2d 1129,252 Ill.App.3d 239,191 Ill.Dec. 751
• Parties: , 191 Ill.Dec. 751 The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Anthony LASH, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 1129

624 N.E.2d 1129

252 Ill.App.3d 239, 191 Ill.Dec. 751

The PEOPLE of the State of Illinois, Plaintiff-Appellee, v.Anthony LASH, Defendant-Appellant.

No. 1-91-2920.

Appellate Court of Illinois First District, First Division.

Feb. 22, 1993.

Rita A. Fry, Public Defender, Chicago, (James N. Perlman, of counsel), for defendant-appellant.

John M. O'Malley, State's Atty., Chicago, (Renee Goldfarb, Linda Woloshin, Ann L. Benedek, of counsel), for plaintiff-appellee.

Justice O'CONNORdelivered the opinion of the court:

Following a jury trial, defendantAnthony Lash was convicted of the July 1989 shooting murder of James Towns (Ill.Rev.Stat.1989, ch. 38, par. 9-1) and sentenced to thirty-four years imprisonment.Defendant raises the following errors on appeal: (1)the circuit court erroneously denied his pre-trial motion to suppress; (2)the court improperly allowed the State to inform the jury on multiple occasions that defendant had been previously arrested on another matter; (3)the court improperly admitted certain testimony demonstrating how the police were led to defendant as the assailant; (4)the court erred in admitting testimony from an assistant State's Attorney that "improper" confessions are suppressed at criminal trials where such testimony suggested that defendant's confession was proper in this case since it was admitted at trial; and (5) multiple instances of prosecutorial comment during closing argument denied him a fair trial.We affirm.

Defendant's guilt in this case was largely established through his own oral confession, although he denied making it, and the eyewitness testimony of Eugene Hammond, a neighbor of the deceased.

Defendant, age 16, stated in his confession that the victim, Towns, owed him $60 for some cocaine.At about 10:15 p.m. on July 2, 1989, he was parked in a brown station wagon with other individuals waiting for Towns to come out of his house.Defendant had taken two trips past Towns' house and noticed that his car windows were open.Defendant knew that Towns would be out to roll up the windows because it was an unsafe neighborhood.When Towns came out, defendant alighted from the station wagon with a gun and walked towards Towns.When defendant got within 5-6 feet of Towns, Towns turned, faced defendant and began pleading for help.Defendant then fired four shots at Towns, who fell to the ground.Defendant ran away and returned to the waiting station wagon.He and the other persons then drove by the victim and to defendant's house.Defendant went into his house and hid the gun.Defendant later gave the gun to another individual, who sold it to yet another.The police were later able to obtain the gun, which the State introduced into evidence.

Hammond testified for the State that he lived four houses away from Towns on the same side of the street.At about 10 p.m. on July 2, 1989, he was in his front yard talking with a friend.As they talked, Hammond noticed a brown station wagon with approximately four people in it.It was the same car he had seen drive by earlier that same day.At about this time, Towns came out of his house, went to his car and rolled up its windows.

The station wagon stopped and defendant exited.Defendant then walked along the sidewalk in front of Hammond's yard, coming as close as 10-15 feet at one point.The street lights were on, and Hammond saw defendant's face when he looked at Hammond and his friend.Towns was leaning against his car when he turned and saw defendant approaching.Towns began yelling for help, and defendant shot Towns from a close distance.Towns fell to the ground, and defendant ran away.About four minutes later, Hammond saw the same brown station wagon drive by the murder scene.

Hammond identified a photograph of defendant in court, which the police had shown him in August 1989.In September 1989, Hammond viewed a lineup at a police station.Hammond identified in court a photograph of the lineup and identified defendant in that picture.

Defendant denied at trial all involvement with Towns' murder and claimed the police fabricated his confession.

Defendant first contends on appeal that his confession was involuntary and should have been suppressed.We disagree.

The constitutional privilege against self-incrimination is applicable to juveniles (In re Gault(1967), 387 U.S. 1, 87 S.Ct. 1428, 18 L.Ed.2d 527), and the State bears the burden of demonstrating that a confession was voluntarily made.(People v. Holcomb(1989), 192 Ill.App.3d 158, 170, 139 Ill.Dec. 228, 548 N.E.2d 613;People v. Reed(1984), 123 Ill.App.3d 52, 59, 78 Ill.Dec. 393, 462 N.E.2d 512.)The trial court need be convinced only by a preponderance of the evidence that the statement was voluntary (Holcomb, 192 Ill.App.3d at 170, 139 Ill.Dec. 228, 548 N.E.2d 613;Reed, 123 Ill.App.3d at 59, 78 Ill.Dec. 393, 462 N.E.2d 512), and it is the province of the trial judge to resolve any conflicts in the evidence and to determine the credibility of the witnesses.(People v. Bobe(1992), 227 Ill.App.3d 681, 705, 169 Ill.Dec. 814, 592 N.E.2d 301, appeal denied(1992), 146 Ill.2d 634, 176 Ill.Dec. 805, 602 N.E.2d 459;People v. Brown(1989), 182 Ill.App.3d 1046, 1051, 131 Ill.Dec. 534, 538 N.E.2d 909.)An appellate court's review of the voluntariness question is limited to whether the trial court's finding is against the manifest weight of the evidence.Holcomb, 192 Ill.App.3d at 170, 139 Ill.Dec. 228, 548 N.E.2d 613;Reed, 123 Ill.App.3d at 59, 78 Ill.Dec. 393, 462 N.E.2d 512.

Assessing the voluntariness of a juvenile's confession requires great care.(People v. Knox(1989), 186 Ill.App.3d 808, 134 Ill.Dec. 564, 542 N.E.2d 910, appeal denied(1989), 127 Ill.2d 630, 136 Ill.Dec. 598, 545 N.E.2d 122.)However, statements made by juveniles are generally subjected to the same test as adult defendants.(People v. Prude(1977), 66 Ill.2d 470, 6 Ill.Dec. 689, 363 N.E.2d 371, cert. denied(1977), 434 U.S. 930, 98 S.Ct. 418, 54 L.Ed.2d 291.)The test is whether the statement was made freely, without compulsion or inducement of any sort, or whether defendant's will was overcome when he made the statement.(People v. Prim(1972), 53 Ill.2d 62, 70, 289 N.E.2d 601, cert. denied(1973), 412 U.S. 918, 93 S.Ct. 2731, 37 L.Ed.2d 144.)A court is to look to the totality of the relevant circumstances surrounding the making of the statement (Prude, 66 Ill.2d at 475, 6 Ill.Dec. 689, 363 N.E.2d 371;Prim, 53 Ill.2d[191 Ill.Dec. 755] at 70, 289 N.E.2d 601), which include: the existence of any promises, threats or physical coercions; whether the accused received his constitutional rights; the duration of the questioning; and the age, education and intelligence of the defendant.People v. Martin(1984), 102 Ill.2d 412, 427, 80 Ill.Dec. 776, 466 N.E.2d 228, cert. denied(1984), 469 U.S. 935, 105 S.Ct. 334, 83 L.Ed.2d 270.

In this case, Detective Kill of the Chicago Police Department testified for the State that on September 14, 1989, he was investigating the July 2, 1989, homicide of Towns.Kill arranged for defendant to be questioned regarding the murder.Defendant was residing on this date at the Audy Home, where he was being held as a suspect in an unrelated attempted murder.Kill was the detective on that case too.

Prior to the interview, Kill attempted to contact defendant's parents.In a prior interrogation of defendant on July 19 regarding the attempted murder charge, defendant's stepfather was present during the interview.Kill knew that the stepfather worked until mid-afternoon as did defendant's mother.Kill did not have the stepfather's or mother's work number.Kill also knew that defendant was represented by counsel in the attempted murder case.

At 11 a.m., Kill interviewed defendant at Area 3 Headquarters in an interview room.Kill reintroduced himself, and introduced Youth Officer Balcitis and Detective Fred McKinley.All three were present during the interview.Kill gave defendant his Miranda warnings from a FOP handbook, and defendant indicated he understood each right.The rights given to defendant were the same ones which defendant received during a July 19 interview, when Kill interviewed defendant on the attempted murder charge.

Kill informed defendant that the nature of the offense allowed him to be charged as an adult.Defendant understood this and indicated that he wished to speak about the Towns murder.Defendant thereafter made the oral statement which was subsequently introduced at trial.

Kill testified that at no time did defendant ask to see a lawyer or that his parents be contacted.Defendant was never subjected to threats, coercion or intimidation at any time.The interview lasted 20 minutes.No attorney was present during the interview.Youth Officer Balcitis was only alone with defendant after he made his statement.

Detective McKinley of the Chicago Police Department, Area 3 Violent Crimes, testified for the State that on September 14, 1989, at about 9 a.m., he retrieved defendant from the Audy Home.McKinley did not ask any of the home's officials to accompany him to Area 3 nor seek to interview defendant at the home.Defendant did not ask that his parents be contacted, and they were not contacted to McKinley's knowledge.McKinley knew that defendant was being represented by legal counsel regarding the attempted murder charge.

McKinley transported defendant in handcuffs alone from the Audy Home to Area 3 Headquarters.A lineup was conducted when defendant arrived; Detectives Kill and McKinley and Youth Officer Balcitis were present for the lineup.Following the lineup, defendant was interviewed.The remainder of McKinley's testimony is substantially corroborative of Kill's testimony.

Chicago Police Officer Sharon Balcitis of the Youth Division testified for the State that she too participated in the lineup and interview at Area 3 Headquarters on September 14, 1989.Although she was present to protect defendant and safeguard his...