People v. Wilberton

• Decision Date: 20 April 2004
• Docket Number: No. 1-03-0093.,1-03-0093.
• Citation: 809 N.E.2d 745,348 Ill. App.3d 82,284 Ill.Dec. 179
• Parties: The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Reginald WILBERTON, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

809 N.E.2d 745

348 Ill. App.3d 82

284 Ill.Dec. 179

The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Reginald WILBERTON, Defendant-Appellant.

No. 1-03-0093.

Appellate Court of Illinois, First District, Second Division.

April 20, 2004.

Rehearing Denied May 3, 2004.

Michael J. Pelletier, Deputy Defender, and Stephen L. Gentry, Assistant Appellate Defender, Office of the State Appellate Defender, Chicago, for Appellant.

Richard A. Devine, State's Attorney of Cook County, Chicago (Renee Goldfarb, Michelle Katz, and Hareena Meghani-Wakely, of counsel), for Appellee.

Presiding Justice WOLFSON delivered the opinion of the court:

The single issue before us is whether the defendant's confessions to murder were independent of the taint of his illegal arrest.

This case is before us for the second time. Following a jury trial, defendant Reginald Wilberton was found guilty of first degree murder, attempted first degree murder, and aggravated discharge of a firearm. The trial court sentenced defendant to 35 years' imprisonment for first degree murder and a concurrent 30-year term for attempted murder.

In the first appeal, this court rejected all of defendant's contentions but one: we vacated defendant's conviction after finding the police lacked probable cause to arrest him. People v. Wilberton, No. 1-01-1481 (2002) (unpublished order pursuant to Supreme Court Rule 23). We remanded the cause to the circuit court for a determination of whether defendant's inculpatory statements were sufficiently attenuated from the illegal arrest. After a hearing, the trial judge found sufficient attenuation and reinstated defendant's conviction. Defendant now appeals the trial court's order, contending his statements were not attenuated from his arrest.

We affirm.

FACTS

At the attenuation hearing, Chicago police sergeant John Pallohusky testified he arrested defendant at 12:30 a.m. on August 11, 1998, for his suspected involvement in the murder of Larion Jackson and attempted murder of Chris Jackson. At the time, police knew a man nicknamed "Bird" was involved in the shooting. Derrold Davis, who was another suspect already in custody for questioning in another case, told police that Reginald Wilberton was known as "Bird" and gave them defendant's address. Sergeant Pallohusky did not interview defendant after his arrest.

Detective James Gilger interviewed Davis at 6 p.m. on August 11, 1998. After being advised of the Miranda warnings, Davis told Detective Gilger that he drove defendant and two other men to a house on Laramie Street. They went there to shoot rival gang members. Defendant had a shotgun and the other men had a .357 revolver and a .45 caliber handgun. Defendant said he would shoot first. Defendant and the two men got out of the car and fired shots at people sitting on the front porch of the house. Gilger testified that Davis' statement was corroborated by physical evidence collected at the crime scene, where Gilger found an empty shotgun shell casing and wadding from the shell. He also found several shell casings consistent with a .45 caliber gun.

Detective Gilger interviewed defendant at 9 p.m. on August 11, 1998. After advising defendant of his Miranda rights, Detective Gilger told defendant Davis had implicated him in the shooting of Larion Jackson, that Davis said defendant used a shotgun. Defendant denied any involvement and agreed to take a polygraph examination the next morning.

Detective Gilger interviewed defendant again at 6 p.m. on August 12, 1998, about 42 hours after defendant's arrest. After reading defendant the Miranda warnings, Detective Gilger again told defendant Davis had given a statement and that Davis was charged with shooting Larion Jackson. Defendant then made a statement implicating himself in the shooting; he later repeated his statement for the assistant State's Attorney and a court-reporter. These were not the first inculpatory statements made by defendant

The parties stipulated to the trial testimony of Kevin Howley. At trial, Howley testified he administered a polygraph examination to defendant at noon on August 12, 1998, after advising defendant of his Miranda rights. After the test, Howley told defendant that the test results indicated deception. Defendant then gave an inculpatory statement to Howley, admitting he rode with three other individuals to Laramie Street. There, defendant took a shotgun and fired two shots into the gangway of the building. He returned to the car and fled the scene with the three other men.

Detective Kenneth Berris testified he escorted defendant to the polygraph examination. After the examination, Detective Berris read defendant the Miranda warnings, and defendant indicated he understood his rights. Defendant then gave an inculpatory statement to Berris.

Assistant State's Attorney Karen Kerbis testified she spoke with defendant at 11:15 p.m. on August 12, 1998, about 47 hours after his arrest. She advised defendant of his Miranda rights, and defendant indicated he understood his rights. Defendant made an inculpatory statement to Kerbis and agreed to allow a court reporter to record his statement. In his court-reported statement, dated August 13, 1998, at 12:44 a.m., defendant admitted firing a shotgun twice toward the porch of a house on Laramie Street. He also made statements regarding the other participants and the guns they used. Defendant said the police gave him food and drink, allowed him to use the bathroom, allowed him to rest, and treated him "fine". Defendant's statement as recorded by the court reporter was admitted into evidence at trial.

The trial court found Davis' statement to police implicating defendant in the shooting and the polygraph examination were intervening circumstances. Those circumstances, together with the presence of Miranda warnings and lack of police misconduct, sufficiently attenuated defendant's statement from the illegal arrest. The trial court reinstated defendant's conviction and sentence.

DECISION

I. Standard of review

The parties do not contest the facts or credibility of the witnesses. When neither the facts nor witness credibility are disputed, we review the trial court's attenuation determination de novo. People v. Berry, 314 Ill.App.3d 1, 15-16, 247 Ill.Dec. 80, 731 N.E.2d 853 (2000), citing People v. Foskey, 136 Ill.2d 66, 76, 143 Ill.Dec. 257, 554 N.E.2d 192 (1990).

II. Attenuation

Defendant contends his court-reported statement should have been suppressed because it followed an illegal arrest. "The fact of an illegal arrest, standing alone, does not make a subsequent confession inadmissible." People v. Wright, 294 Ill.App.3d 606, 612, 229 Ill. Dec. 158, 691 N.E.2d 94 (1998). Instead, it becomes the burden of the prosecution to show by clear and convincing evidence that the confession was "`a product of the defendant's free will, independent of any taint of the illegal arrest.'" Wright, 294 Ill.App.3d at 612, 229 Ill.Dec. 158, 691 N.E.2d 94, quoting People v. Pierson, 166 Ill.App.3d 558, 563, 117 Ill.Dec. 18, 519 N.E.2d 1185 (1988).

Courts use four factors to determine whether a confession is purged of the taint of illegality: (1) whether the confessor received Miranda warnings; (2) the temporal proximity of the arrest and the confession; (3) the presence of intervening circumstances; and (4) the purpose and flagrancy of the police misconduct. People v. Willis, 344 Ill.App.3d 868, 884, 279 Ill. Dec. 755, 801 N.E.2d 47 (2003), pet. for leave to appeal granted, No. 97454, 207 Ill.2d 627, 283 Ill.Dec. 140, 807 N.E.2d 981 (January 28, 2004); Brown v. Illinois, 422 U.S. 590, 603-04, 95 S.Ct. 2254, 2261-62, 45 L.Ed.2d 416, 427 (1975). The last two factors, intervening circumstances and police misconduct, are considered key factors in attenuation analysis. Willis, 344 Ill. App.3d at 884-85, 279 Ill.Dec. 755, 801 N.E.2d 47.

A. Presence of Miranda warnings

Although police cannot dissipate the taint of an illegal arrest simply by giving Miranda warnings, the presence of the warnings prior to interrogation carries some weight. Wright, 294 Ill.App.3d at 614, 229 Ill.Dec. 158, 691 N.E.2d 94. Here, it is undisputed that all questioners advised defendant of his Miranda rights before statements were made. Six times defendant waived his rights and agreed to give a statement. This factor weighs in favor of attenuation.

B. Temporal proximity of arrest and statement

Next, we consider the length of time between the illegal arrest and defendant's inculpatory statement. In this case, defendant gave his first inculpatory statement to the polygraph examiner 36 hours after his arrest. His second inculpatory statement was made to a detective, shortly after the statement to the polygraph examiner. He agreed to give a court-reported statement 48 hours after his arrest.

A lapse of time may dissipate the taint of an illegal arrest by allowing the accused to reflect on his situation. People v. Ollie, 333 Ill.App.3d 971, 985, 267 Ill. Dec. 726, 777 N.E.2d 529 (2002). Here, defendant was not incessantly Interrogated, giving him plenty of time to ponder not only his situation, but also Davis' statement against him. Nonetheless, this factor is ambiguous and its significance depends on the facts of each case, particularly if there are additional indicia of coercion. Willis, 344 Ill.App.3d at 886, 279 Ill.Dec. 755, 801 N.E.2d 47; Ollie, 333 Ill.App.3d at 985, 267 Ill.Dec. 726, 777 N.E.2d 529 (a significant lapse of time enhances the coercive nature of a custodial setting). It follows, then, our focus must be on the two remaining factors—intervening circumstances and police misconduct.

C. Intervening circumstances

"`An intervening circumstance is one that dissipates the taint of unconstitutional police conduct by breaking the causal connection between the illegal conduct and the confession.'" People v. Austin, 293 Ill.App.3d 784, 788, 228 Ill.Dec. 42, 688 N.E.2d 740 (1997). Intervening circumstances support...