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In Re Potts

OPINION FILED MARCH 20, 1978.

IN RE RICKY POTTS, A MINOR. — (THE PEOPLE OF THE STATE OF ILLINOIS, PETITIONER-APPELLEE,

v.

RICKY POTTS, RESPONDENT-APPELLANT.)



APPEAL from the Circuit Court of Cook County; the Hon. JOHN P. McGURY, Judge, presiding.

MR. PRESIDING JUSTICE GOLDBERG DELIVERED THE OPINION OF THE COURT:

A delinquency petition alleging commission of murder was filed against Ricky Potts, a minor (respondent), then some 12 or 13 years old. The trial court committed respondent to the juvenile division of the Department of Corrections. He has appealed.

In this court counsel for the respondent urge he was arrested without a warrant and without probable cause and his motion to quash the illegal arrest and to suppress the fruits thereof should have been allowed; respondent was incapable of understanding the Miranda warnings and his statement to the police was coerced by their overbearing conduct; the evidence failed to prove the cause of death of the victim and the record lacks a prior adjudication of wardship.

Concerning the hearings on the motions to quash the arrest and to suppress respondent's statements, Investigator Gerald Slattery testified that on April 16, 1976, he was investigating the death of a 5-year-old child. The case involved the alleged burning of the deceased. He spoke to a juvenile named Maurice Slatton. Slatton told the officer that two juveniles named Dennis Potts, brother of respondent, and Eddie Turnage had been chasing him for three weeks and threatening him because they thought he had informed the police they had burned the deceased child. Maurice Slatton told Officer Slattery of having heard Dennis Potts say to Eddie Turnage, "I poured it on him this time, you'll have to do the next one." Young Slatton also told the officer that Turnage had shouted at him, "We'll burn you like we did the little boy." Officer Slattery directed some police officers to bring Dennis Potts and Eddie Turnage to him for questioning. Officer Slattery continued to talk to young Slatton. The latter told him that the respondent was also involved in the burning incident. Slattery then sent a radio message to the officers asking that they also bring in respondent for questioning. Slattery testified that he did not note this information regarding respondent in the written report which he later prepared.

It also appeared from police testimony that the respondent's mother was advised that the police wished to question the respondent and his brother, Dennis Potts, regarding the burning of a little boy. The mother testified that the police did not tell her precisely what was involved. The officers testified that the mother extended permission for taking the boys to the station. When asked to accompany them, she stated that she could not. Officer Gerald Dahlberg testified that he advised the respondent of his Miranda rights in the police car and the respondent told him he understood. This was repeated at the police station and respondent again stated that he understood his rights. At that time, the police telephoned respondent's mother with the request that she join them but she did not appear. Another officer, Investigator John Bulger, asked respondent if he had been informed of his rights. The respondent stated that he had and that he understood.

The officers then spoke to respondent. He told them that his brother Dennie, Eddie Turnage and the juvenile referred to as Maurice had burned the child, Shawn Winfield. Respondent told the officers that this had taken place in a garage which he described. He then took the police to the garage. In further police conversations, Dennis Potts told the police that respondent had actually lighted the match which burned the victim. Respondent denied this and told the officers that his brother Dennis had lit the match. The evidence is to the effect that this questioning took approximately four hours. There was testimony that the officers did not shout at the respondent but spoke in conversational tones.

During the questioning a youth officer called respondent's mother and she came to the station. An assistant State's Attorney advised the respondent concerning his Miranda rights in the presence of the mother. Respondent then gave a written statement to an assistant State's Attorney. This was done in the presence of respondent's mother. The written statement was solely exculpatory.

The record does not reflect whether respondent used, or requested the use of bathroom facilities, or whether he was fed while in the station.

• 1 The initial question is whether the police had probable cause to arrest the respondent. The determination of probable cause must be made upon all of the circumstances presented to the investigating officer. In a sense, the test is subjective and it has been stated that probable cause exists when "`the facts and circumstances within the arresting officer's knowledge are sufficient to warrant a man of reasonable caution in believing that an offense has been committed and that the person arrested has committed the offense.'" People v. Blitz (1977), 68 Ill.2d 287, 292, 369 N.E.2d 1238, quoting from People v. Robinson (1976), 62 Ill.2d 273, 276, 342 N.E.2d 356.

In the case before us, Officer Slattery had full knowledge of the fact that a criminal offense had been committed upon the person of the burned child. He was then informed by Maurice Slatton that respondent was involved in the burning. A situation of this type is completely different from that in which police have received information from a paid informer. The element of possible gain to the informer from furnishing his information is completely lacking. Thus, the distinction between a paid informer and a citizen informant is an actual one. It was not necessary for the State to establish reliability of the informant in the case before us. See People v. Lawson (1976), 36 Ill. App.3d 767, 770, 345 N.E.2d 41, and cases there cited.

• 2 In determination of the legality of an arrest, the burden of proof rests upon defendant. (People v. Turner (1976), 35 Ill. App.3d 550, 567, 342 N.E.2d 158, appeal denied (1976), 63 Ill.2d 554.) As a reviewing court we may not disturb the conclusion reached by the trial court unless we find it to be "manifestly erroneous." (People v. Clay (1973), 55 Ill.2d 501, 505, 304 N.E.2d 280, and cases there cited.) Additionally, in passing upon the ruling made by the trial court upon the motion to suppress, a reviewing court may consider evidence received after conclusion of the hearing on the motion. (See Turner, 35 Ill. App.3d 550, 567.) The record before us shows that the informant, Maurice Slatton, testified during trial of the case. The trial judge therefore had opportunity to observe him and to weigh his credibility and thereby to make an assessment of the credence that the police officer should have given his statements.

• 3 We will add parenthetically that assuming the respondent had proved a lack of probable cause for his arrest, analysis of the entire record would lead us to affirm it upon consideration of the factors discussed in Brown v. Illinois (1975), 422 U.S. 590, 603-04, 45 L.Ed.2d 416, 427, 95 S.Ct. 2254. (See Turner, 35 Ill. App.3d 550, 568.) We conclude that the result reached by the trial court denying the motion to quash the arrest was proper and it is affirmed.

On the motion to suppress his oral inculpatory statements, respondent urges that he lacked mental capacity to understand the warnings and to waive his rights and that the statements made by him were obtained as a result of police coercion.

• 4 In reviewing this denial of the motion, we are obliged to consider the "totality of the circumstances." (People v. Prim (1972), 53 Ill.2d 62, 70, 289 N.E.2d 601, cert. denied (1973), 412 U.S. 918, 37 L.Ed.2d 144, 93 S.Ct. 2731.) The pertinent statute provides "[t]he burden of going forward with the evidence and the burden of proving that a confession was voluntary * * *" rests upon the State. (Ill. Rev. Stat. 1975, ch. 38, par. 114-11(d).) However, the degree of proof required of the State has been described as "one of persuasion and not beyond a reasonable doubt." (Ill. Ann. Stat., ch. 38, par. 114-11, Committee Comments, at 345 (Smith-Hurd 1977).) Consequently the rule is that in determining the voluntary nature of a confession the "trial court need not be convinced beyond a reasonable doubt, and the finding of the trial ...


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