People v. Polk, 1–08–0867.

Citation942 N.E.2d 44,407 Ill.App.3d 80,347 Ill.Dec. 211
Decision Date27 January 2011
Docket NumberNo. 1–08–0867.,1–08–0867.
PartiesThe PEOPLE of the State of Illinois, Plaintiff–Appellee,v.Darius POLK, Defendant–Appellant.
CourtUnited States Appellate Court of Illinois

407 Ill.App.3d 80
942 N.E.2d 44
347 Ill.Dec.
211

The PEOPLE of the State of Illinois, Plaintiff–Appellee,
v.
Darius POLK, Defendant–Appellant.

No. 1–08–0867.

Appellate Court of Illinois, First District, Third Division.

Dec. 30, 2010.Rehearing Denied Jan. 27, 2011.


[942 N.E.2d 47]

Michael J. Pelletier, State Appellate Defender, Chicago (Deputy Defender Patricia Unsinn, Assistant Appellate Defender Suzan-Amanda Ingram, of counsel).Anita Alvarez, State's Attorney of Cook County, Chicago (Assistant State's Attorneys Alan J. Spellberg, Janet C. Mahoney, of counsel).Presiding Justice QUINN delivered the opinion of the court:

[347 Ill.Dec. 214 , 407 Ill.App.3d 81] Following a jury trial, defendant was found guilty of the first [407 Ill.App.3d 82] degree murder of Arthur Levison and of personally discharging the weapon that caused the victim's death, and the attempted first degree murder of Kevin Roberts. Defendant was subsequently sentenced to consecutive prison terms of 25 years for the first degree murder, 25 years for personally discharging the firearm that caused the victim's death, and 15 years for the attempted first degree murder. On appeal, defendant contends that: (1) the trial court erred by denying his motion to suppress his statement where defendant did not understand his right to remain silent, defendant invoked his right to counsel, and the totality of the circumstances showed that defendant's statement was the result of police coercion; (2) the trial court abused its discretion by precluding defendant from presenting expert testimony regarding false confessions; (3) the trial court erred by refusing to allow defendant to question prospective jurors during voir dire about their attitudes regarding false confessions; (4) the trial court should have eliminated the “certainty” factor from Illinois Pattern Jury Instructions Criminal, No. 3.15 (4th ed. 2000) (hereinafter IPI Criminal 4th No. 3.15) where it was an irrelevant factor in this case; and (5) the mittimus should be amended to reflect the correct number of days defendant served in presentence custody. For the following reasons, we affirm and correct the mittimus.

I. BACKGROUND
A. Pretrial Motions

Prior to trial, defendant filed a motion to suppress his videotaped statement made while in police custody. Defendant argued that he did not knowingly and intelligently waive his right to remain silent or his right to counsel and that his statement was the result of compulsion and inducement.

At the hearing on defendant's motion, Chicago police officer William Lepine testified that at about 8:50 a.m., on December 22, 2005, he received a call to proceed to 5301 West Congress in Chicago. Officer

[347 Ill.Dec. 215 , 942 N.E.2d 48]

Lepine testified that he was advised that an offender of a homicide and aggravated battery was at that location. Officer Lepine was provided with a physical description of the offender and met his partner at the location. Officer Lepine testified that he and his partner placed defendant under arrest, handcuffed defendant, and transported defendant to the 15th District police station. Officer Lepine testified that defendant was placed in an interview room that was approximately six feet in width and length, and had a large window looking out into the processing room. Officer Lepine handcuffed one of defendant's hands to a ring on the wall. Officer Lepine did not speak to defendant or advise him of his rights. Defendant remained in the room until about noon when detectives picked him up.

[407 Ill.App.3d 83] Sergeant Michael Barz testified that in December 2005, he was assigned to investigate the homicide of Levison and the attempted murder or aggravated battery with a firearm of Roberts. At about 11 a.m. or noon, on December 22, 2005, Sergeant Barz was informed that defendant was being held in custody at the 15th District police station. Sergeant Barz testified that he went to the police station and spoke to the two arresting officers as well as the surviving victim, Roberts. Sergeant Barz testified that Roberts was at the police station but did not have any contact with defendant. Sergeant Barz drove Roberts home while other police officers transported defendant to the Area 5 police station. After taking Roberts home, Sergeant Barz went to Area 5 to speak with defendant.

Sergeant Barz testified that he first interviewed defendant at about 2:50 p.m. Sergeant Barz testified that the interview room contained video-recording equipment that was functioning and monitored by another detective. Sergeant Barz testified that he advised defendant of his Miranda rights by reading each right then asking defendant if he understood. Sergeant Barz testified that he asked defendant his age and learned that defendant was 17 years old and, therefore, Sergeant Barz was not required to have a parent, guardian, or youth officer present during the interview. Sergeant Barz testified that after advising him of his rights, defendant did not state that he wanted a parent, guardian, or attorney present.

Sergeant Barz testified that defendant told him that on the date of the shooting, December 12, 2005, Shawn Wooden picked defendant up from his home at about 11 a.m. or noon. Defendant told Sergeant Barz that he drove with Shawn to Bolingbrook, Illinois, to see Shawn's sister, who was defendant's girlfriend. Defendant stated that he stayed in Bolingbrook until that Wednesday, December 14, 2005. Defendant provided Sergeant Barz with a phone number for Shawn and Sergeant Barz located Shawn in Joliet, Illinois. Sergeant Barz testified that he explained to Shawn that defendant was in custody and that he needed to speak with Shawn. Sergeant Barz testified that Shawn was paralyzed as the result of being a gunshot victim and used a wheelchair to transport himself. Shawn agreed to come to Area 5 for an interview and arrived at the police station several hours later.

Sergeant Barz testified that Detectives Noradin and Gillespie spoke with Shawn, who did not support defendant's alibi. Shawn told the officers that on the date in question, he had a red Park Avenue vehicle. Sergeant Barz testified that he was aware that at the time of the shooting, a Chicago police portable “pod camera” recorded a red vehicle, possibly a Park Avenue, near the scene of the shooting and a black male exit from the red vehicle.

[942 N.E.2d 49 , 347 Ill.Dec. 216]

[407 Ill.App.3d 84] Sergeant Barz testified that he confronted defendant with the information that Shawn was not supporting defendant's alibi. Sergeant Barz also confronted defendant with the fact that a victim had survived the shooting and the victim knew defendant. Sergeant Barz testified that by this time it was mid-afternoon and defendant had been offered food and drinks, been allowed to use the washroom, and provided with his cigarettes and matches to smoke in the interview room. Sergeant Barz testified that between 5:30 and 5:45 p.m., defendant told the sergeant that he wanted to talk to his Aunt Sholanda on the phone about hiring a lawyer. Sergeant Barz testified that he told defendant that if defendant wanted a lawyer, he would stop talking to defendant. Sergeant Barz also testified that he explained to defendant that defendant did not have to wait to hire an attorney, but, rather, defendant could have an attorney appointed to him. Defendant told Sergeant Barz that he did not want an appointed attorney.

Sergeant Barz testified that he made several attempts to contact defendant's Aunt Sholanda with the phone number defendant provided and Sergeant Barz sent a police car to the aunt's residence, but she was not home. Sergeant Barz was informed that the aunt was working until midnight and did not have a cell phone. Sergeant Barz testified that defendant then called a different aunt using a phone at the police station.

Sergeant Barz testified that during his conversation with defendant, defendant told the sergeant that he would tell the police what happened if they let Shawn go home. Sergeant Barz testified that, at that time, he still wanted to talk to Shawn about Shawn's whereabouts on the day of the shooting and the assistant State's Attorney also wanted to talk to Shawn. Sergeant Barz testified that defendant also stated that he did not believe that Shawn was actually at the police station. Sergeant Barz had Shawn brought to the door of the interview room and opened the door so that defendant could see him. Defendant then asked to talk to Shawn and Sergeant Barz told defendant that he would not interview Shawn in defendant's presence. Sergeant Barz also told defendant that he viewed a pod camera and saw a red car on the camera with a man exiting the red car in the vicinity of where the shooting had occurred. Sergeant Barz testified that his statement was the truth because he had viewed the pod camera.

Sergeant Barz testified that he conducted a physical lineup, in which the surviving victim, Roberts, positively identified defendant. Sergeant Barz explained that he conducted a lineup for Roberts to view because Roberts only knew defendant by his nickname “Dee.” Sergeant Barz testified that he explained to defendant that the State's [407 Ill.App.3d 85] Attorney's office would review the case and determine what charges would be filed. Sergeant Barz testified that defendant asked the sergeant to tell him what other people were saying, but the sergeant refused to do so. Sergeant Barz testified that shortly thereafter, defendant made a statement in which he implicated himself in the shooting. Sergeant Barz testified that defendant's statement was very specific and referred to the surviving victim by his nickname.

Sergeant Barz testified that the lights were turned off in the interview room and defendant was allowed to sleep. Sergeant Barz testified that he never told defendant that he could go home if he made a statement. Defendant had informed the sergeant that he dropped out of high school as a sophomore, and was in a GED...

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