People v. Poole

• Decision Date: 02 December 1991
• Docket Number: No. 1-89-3253,1-89-3253
• Citation: 222 Ill.App.3d 689,165 Ill.Dec. 189,584 N.E.2d 368
• Parties: , 165 Ill.Dec. 189 The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Tyrell POOLE, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 368

584 N.E.2d 368

222 Ill.App.3d 689, 165 Ill.Dec. 189

The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Tyrell POOLE, Defendant-Appellant.

No. 1-89-3253.

Appellate Court of Illinois First District, Sixth Division.

Dec. 2, 1991.

Michael J. Pelletier, Deputy Defender, Martin Carlson, Office of State Appellate Defender, Chicago (Prentice H. Marshall, Jr., Marjorie M. Golis, of counsel), for defendant-appellant.

Jack O'Malley, State's Atty., County of Cook, Chicago (Renee Goldfarb, James Fitzgerald, Christine Perille, of counsel), for plaintiff-appellee.

Justice LaPORTA delivered the opinion of the court:

Defendant Tyrell Poole was convicted of attempt armed robbery after he tried to rob a neighbor at knife point. An off-duty sheriff's deputy heard the neighbor's screams and shot defendant twice as he attempted to flee. Defendant was sentenced to 10 years in prison.

On appeal, defendant alleges four errors by the trial court: (1) the court erred as a matter of law by denying defendant's motion to suppress his confession despite the State's failure to produce a material witness at defendant's suppression hearing, (2) the court erred in determining defendant's confession was voluntary based on the evidence, (3) the court abused its discretion by precluding defendant from discussing in his opening statement racial slurs made by the alleged victim, and (4) the court erred as a matter of law in denying defendant's motion for a new trial because the jury's verdict was contrary to the manifest weight of the evidence.

Testimony at trial revealed that defendant approached the victim, Simone Byvotes as she was about to enter the front door of her home, and attempted to rob her at knife point on May 20, 1988. The robbery was foiled when an off duty sheriff's deputy who was a neighbor of Byvotes, heard her screams and came to her aid, shooting the defendant in the left buttock and lower left leg as he fled.

Defendant was arrested at the scene and indicted June 20, 1988 in a three-count indictment charging him with armed robbery, aggravated battery and unlawful use of a firearm by a felon. Defendant pled not guilty to all counts. The aggravated battery and unlawful use of a firearm by a felon charges were dismissed by the court before trial.

On February 16, 1989, defendant moved to suppress any statements made by him at the time of his arrest, at or about 11:45 p.m. on May 20, 1988, or later. He alleged that any statements, including an alleged voluntary statement he signed at 2:18 a.m on May 21 was the product of coercion brought on by his intense pain and Officer Michael Auld's promise that if he signed the statement Auld would help obtain some pain medication for him. The trial court heard testimony from the defendant, from the paramedic on the scene who allegedly witnessed defendant's oral statement on which the written statement was based, and from a Dolton Police sergeant who had defendant sign a Miranda waiver.

At the suppression hearing, defendant testified that he never made a statement in the ambulance and was never given Miranda warnings. He testified that he asked Auld what he was being charged with and Auld told him attempted rape. Defendant testified that once he was in the hospital, while in a room with Auld, he asked Auld for pain medication because "my leg was killing me." Defendant testified that Auld told him "if I signed this statement, the paperwork and stuff, and got that out of the way, he would make sure that I got some medication." He testified that Auld assured him he would get pain medication and so he signed the statement at about 2:18 a.m. without reading it. He testified that Auld never read the statement out loud to him and that no one ever read out loud a Miranda waiver form.

On cross examination, defendant testified that the paramedic kept giving him smelling salts to wake him up while he was being transported to the hospital. He testified that he asked for pain medication while in the ambulance but that the paramedic told him that he would get some at the hospital. Defendant testified that he asked several hospital personnel for medication but no one would give him any. Defendant testified that at one point while he was in a hospital room, Auld left the room and then returned a moment later and told him "he'd be able to get my pain medication for my leg and stuff as soon as I signed these statements." He then indicated that "these statements" included the confession and a Miranda waiver.

Paramedic Doepp, also a Palos Park police officer, testified that defendant was conscious and "his level of response seemed to be orientated to person, place and time" at the scene. He testified that he never heard officer Auld say anything to defendant that he would consider coercive and he never heard Auld promise defendant any type of medication in exchange for a statement.

Doepp testified that "standard operating procedure" prevents him from delivering medication to a gunshot victim. Doepp testified that he heard Auld give defendant his Miranda warning and that defendant said he understood his rights. Doepp testified that Auld asked defendant if he wanted to make a statement and defendant agreed and then did so. Doepp testified that defendant made the statement to Auld before they arrived at the hospital at 12:36 a.m. Though Doepp had no independent recollection of defendant's oral statement, he viewed defendant's written statement and then testified that it accurately depicted the oral statement he heard defendant make to Auld.

On cross examination, Doepp testified that he remembered defendant making a statement and Auld taking notes but he did not remember whether Auld read the Miranda rights to defendant or spoke them from memory. He testified that defendant was in pain and asked for pain medication. Doepp said he did not recall defendant telling him he was weak and felt faint. Doepp testified that he had no recall of giving defendant smelling salts. Doepp explained that you do not give medication for pain relief to an individual with a recent gunshot wound because of the need to monitor vital signs.

Doepp testified on redirect examination that defendant was conscious, his pupils were responsive, his skin color and temperature were normal. Doepp testified that the defendant told him "he was going to kick my ass when he got better." He testified that the defendant also told him he had not tried to rape the victim. Doepp denied withholding medication on his own or at Auld's direction to induce defendant to make a statement. On recross examination, Doepp admitted that he never saw the defendant sign a statement.

Sergeant William Wragg testified that he arrived at the hospital at 2 a.m. and gave defendant a constitutional rights form which defendant read and then signed. Wragg testified that the defendant made no statement to him that would indicate medication was being withheld by anyone or that he was being coerced. Wragg testified that he instructed Auld to put the time and date on the statement. He testified that he was not present when defendant signed the statement or when Auld allegedly read back the written statement to defendant. He conceded that to the best of his knowledge, the Miranda waiver was signed after defendant made his oral statement to Auld in the ambulance.

The trial court then denied defendant's motion to suppress the written statement. The court found that the oral statement defendant gave in the ambulance came after Miranda warnings were issued and that defendant later signed the Miranda form and the statement at the hospital. He found no evidence of coercive government action in the ambulance and said none could have taken place in the hospital.

The trial judge stated: "The contention is that a promise is made at two eighteen a.m. for pain medication. Let's ask ourselves; could the government coerce a hospital? Where is the misconduct? There is no suggestion to this Court in the motion that the defendant before this bar is other than normal, capable, logical, reasonably educated. So where is the intrusive government misconduct? This court finds none. Police departments have no control over the dispensation of medication in the hospital. To suggest that a policeman could tell a doctor or a nurse to withhold medication in a hospital setting, that's ludicrous."

The court also stated: "There is no question that the young man is well educated. He had been informed about the nature of his injuries, he knew he was in a hospital setting. It's clear to me from the facts as presented there is no action at all by the police which in any way overbore this gentleman's mind, and I find that the statement was signed by him voluntarily."

As to whether Auld's testimony was material, he stated: "What about the material witness rule? Certainly we heard from the ambulance driver. Very material to the giving, the giving of the statement. The recordation of the statement? Wragg touched on that. What about the presence of the officer? The State offers a reasonable explanation. The officer is not now here. He's in the State of Washington, and employed as a full-time officer. To me that's reason enough to explain his absence in the totality of all these circumstances."

On October 23, 1989, just before his trial, defendant motioned the court seeking an order in limine to prevent introduction of the confession, which he alleged was based on coercion. Defendant contended that the trial court erred when it did not compel Auld to appear and testify as to the foundation of the written statement under the material witness rule. The motion was denied.

The State moved in limine that the defense, in both its opening statement and closing argument, be prevented from "bringing up any issues of race involving the defendant and the victim and witnesses." The trial judge granted the State's motion, saying: "I don't think the opening statement is an appropriate...