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People v. Mitchell

OPINION FILED APRIL 27, 1984.

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,

v.

HERMAN MITCHELL, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Cook County; the Hon. Vincent Bentivenga, Judge, presiding.

JUSTICE SULLIVAN DELIVERED THE OPINION OF THE COURT:

Following a jury trial, defendant was convicted of murder and sentenced to a term of 25 years. On appeal, he contends that (1) the trial court erred in denying his motions to quash his arrest and suppress his statements; and (2) he was denied a fair trial (a) by improper prosecutorial comments in rebuttal argument and (b) by the State's knowing use of perjured testimony.

The charges arose from the fatal shooting of Gregory Campbell (Campbell) on August 15, 1981, and as there is no contention that guilt was not established, we will set forth only the testimony relevant to the issues presented.

At a pretrial hearing on the motion to quash his arrest, defendant testified that he and a friend were standing on a corner at about 9:30 a.m. on August 24, 1981, *fn1 when Officer Butler approached with another officer and said, "The big boys are looking for you." He was then handcuffed and taken to a police station where he remained for about 45 minutes, after which he was picked up by other officers and taken to Area 6 headquarters. None of the officers produced an arrest warrant, nor did they tell him that he was under arrest for murder.

Officer Jordan testified that while on routine patrol with Officer Butler on August 25, 1981, at about 10 a.m., he saw defendant, whom they had arrested before, standing in front of a store with two other persons. Having been informed a few days earlier by other officers that defendant was wanted in connection with an August 15 murder, he and Butler placed defendant under arrest, took him to their station, advised him of his constitutional rights, and contacted Area 6 officers.

Investigator Elmore testified that on August 18, 1981, at about 10:30 p.m., he and his partner interviewed Stewart Parker (Parker) concerning the murder of Gregory Campbell. Parker told them that he was at the victim's apartment when a friend named B.K. Harrison arrived and told them that three men were after him. Shortly after Harrison left, defendant, "Mookie" Tate, and a third man came there looking for him. Defendant threatened Campbell with a gun and, when Campbell denied knowing Harrison's whereabouts, Tate took the gun from defendant and shot Campbell numerous times. Defendant then held him (Parker) while Tate went to find a weapon with which to kill him, but he broke loose from defendant's grasp, ran to the bedroom, and jumped out of the second-floor window. Elmore stated that he and his partner first spoke to Parker at the YMCA work release center, and that he voluntarily agreed to accompany them to the police station for further questioning. He stated that no threats or promises were made to Parker prior to the statement he gave, and that there was no reason to do so since they didn't believe he was involved in the crime.

Lester Finkle, a former law clerk at the public defender's office, testified that on February 24, 1982, he and defense counsel interviewed Parker at the Cook County jail, where he gave a written statement which Finkle read into the record. In it, Parker stated that although he had been at Campbell's apartment in the early afternoon of August 15, 1981, he was not there when Campbell was murdered; that when the police picked him up at the work release center, they handcuffed him, threatened him, and then promised to get him out of the center if he cooperated with them; that he was treated very poorly throughout the five hours he spent in police custody against his will; and that it was actually B.K. Harrison who made the statement to the police attributed to him. Finkle also testified that Parker read the statement and voluntarily signed it. In denying the motion to quash the arrest, the trial court found that there was sufficient basis to arrest defendant on August 24, 1981.

The court then held a second pretrial hearing on defendant's separate motion to suppress his written statement given to an assistant State's Attorney. Defendant asserted that the statement was involuntarily given because the police officers procured it by inducements, with numerous promises throughout several hours of intermittent interrogation that if he cooperated in their investigation of the unrelated homicide of "Mookie" Tate, he would not be charged with Campbell's murder and his parole warrant would be quashed. Officers Keane and Porter, the interrogating officers, testified that no such promises were made. The trial court denied the motion, finding that the statement was voluntarily given.

At trial, Detective Keane testified that at about 5 p.m. on August 25, 1981, after being advised of his constitutional rights, defendant voluntarily told him that he, "Mookie" Tate, and "Sandman" Dillon were members of the Stones street gang; that on August 15, 1981, they went to Campbell's apartment to look for Harrison, another member of the gang who had been ordered by Dillon to get some guns to use in robbing neighborhood drug dealers; that they saw Parker standing in front of the building and asked him if he had seen Harrison, and when Parker told him that he had not, he hit Parker and ordered him at gunpoint to the second-floor apartment, which he knew Harrison often visited; that once inside, he put a gun to Campbell's head and again asked him where Harrison was, and when Campbell denied knowing his whereabouts, he and his companions left. On the way out, Tate grabbed the gun from him, saying that he thought he heard a noise inside the apartment, and they reentered. After searching the apartment, he told Tate that Harrison was not there, and Tate then shot Campbell several times. He (defendant) then grabbed Parker and held him, while Tate — having expended all the bullets in the gun — went to look for a knife with which to kill Parker. Parker broke loose and jumped out the bedroom window, whereupon he, Tate, and Dillon left the apartment and went to a tavern where he obtained a sawed-off shotgun they planned to use to kill another gang member known as "Cowboy."

Assistant State's Attorney Mahon testified that he advised defendant of his Miranda rights at about 10 p.m. on August 25, and that after signing a written waiver thereof, defendant gave a court reporter a statement which was essentially a recapitulation of the statement that Detective Keane testified defendant made to him.

Stewart Parker's testimony was substantially the same as the statement he gave to Officer Elmore, except that he said defendant (not Tate) was holding the gun just prior to the shooting. Parker admitted to convictions for burglary, theft, and unlawful use of weapons and that he was then serving a sentence for a misdemeanor offense, which was in violation of his parole. He stated, however, that the only promise made to him in return for his testimony was that he would be placed "somewhere where no one would harm me." He acknowledged making the statement to defense counsel and Lester Finkle, but he explained that he said those things because he was afraid that if he did not, defendant — who was in another division of the prison — would seek revenge.

OPINION

• 1 Defendant's threshold contention is that his warrantless arrest was illegal and should have been quashed because the State failed to show that Parker was a credible informant or that his information was sufficiently reliable to establish probable cause. We disagree.

Initially, we note that probable cause for a warrantless arrest exists where there are reasonable grounds to believe that the prospective arrestee has committed a crime (People v. Lippert (1982), 89 Ill.2d 171, 432 N.E.2d 605, cert. denied (1982), 459 U.S. 841, 74 L.Ed.2d 85, 103 S.Ct. 92), and the standards applicable to a police officer's assessment of probable cause based on an informant's tip are at least as stringent as those ...


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