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People v. Tucker-el

OPINION FILED MAY 9, 1984.

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

v.

CLIFTON DAVID TUCKER-EL, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Lake County; the Hon. John L. Hughes, Judge, presiding.

JUSTICE NASH DELIVERED THE OPINION OF THE COURT:

Rehearing denied June 8, 1984.

After trial by jury, defendant, Clifton David Tucker-El, was convicted of burglary (Ill. Rev. Stat. 1981, ch. 38, par. 19-1(a)) and was sentenced to seven years' imprisonment. He appeals contending: (1) that his confession should have been suppressed for failure of the State to present a material witness at the suppression hearing, and the trial court further erred in denying defendant's request for a continuance so that he could subpoena that witness; (2) that his statutory right to a speedy trial was violated; and, (3) that in imposing sentence the trial court erroneously relied upon a prior conviction of defendant which had been reversed. He does not contest the sufficiency of the evidence to sustain his conviction.

Evidence at trial disclosed that on the afternoon of November 3, 1981, Lake Bluff police officers Carl Schones and Leon Raymond responded in separate cars to a burglary alarm at a Lake Bluff residence; the house, located on Green Bay Road, was vacant as the owner was in Florida. The officers saw that a door had been forced open and called for assistance. Two police officers from the Lake Forest police department came to the scene. On inspection of the house, the officers found defendant standing inside the front door; he was ordered to come out and was then placed face down on the ground and handcuffed. One of the Lake Forest police officers guarded defendant while Schones and Raymond looked through the house. In the master bedroom, they observed a chest of drawers which had been opened and empty boxes. After examining the house for about 20 minutes, the officers searched defendant and a pry tool, watch, diamond rings and necklaces were recovered from his person. The watch and jewelry were identified at trial as the property of the home's owner.

Defendant's confession to the commission of the burglary was given to Officers Raymond and Schones at the police station and introduced in trial. Defendant therein stated he had committed the burglary because he owed $25,000 to some people in Chicago who had threatened to kill him if he failed to pay them.

Defendant also testified at trial denying he had committed the burglary and repudiating his confession as the product of police threats to kill him if he did not confess. According to defendant, he had been walking on a Lake Bluff street on that day when Officer Schones stopped him and asked what he was doing in town. The officer then drew his weapon and placed defendant in a patrol car and drove him to the house on Green Bay Road; en route Schones advised other police officers via radio he had a suspect in custody who looked like one of the several black men earlier seen in the area in a suspicious car. Defendant further testified that three or four police cars were at the house on Green Bay Road when he and Schones arrived. Defendant was then forced to lie face down on the ground outside the house and, he stated, Schones threatened to kill him at that time. Another police officer then came over to him and pointed an empty shotgun at his head and pulled the trigger several times as he ordered defendant to confess to having burglarized the house or be killed. Defendant stated he was on the ground for about 20 minutes during which time some of the officers were in the house after having gained entry by a key. He testified that later at the police station he was again threatened before he gave his confession. Defendant denied that any of the items introduced into evidence had been removed from his person during the search.

Before trial, defendant filed a motion to suppress his confession in which he alleged that he had been forced to lie upon the ground while police pointed a shotgun at his head and several times pulled the trigger while warning him if he did not confess he would not make it to jail. The motion did not specify the identity of the officers involved and accused the Lake Bluff police department of the coercion which led to this confession. At the pretrial hearing of defendant's suppression motion the State called Lake Bluff police officers Carl Schones and Leon Raymond to testify to the circumstances of his arrest and confession. As relevant, the officers stated that they had handcuffed defendant and required him to lie on the ground at the time of his arrest and that he had been left under the watch of a Lake Forest police officer while Schones and Raymond examined the interior of the house. The officers testified they had not threatened defendant with any harm if he declined to make a statement.

After the officers testified defendant asked the court for a continuance of the proceedings since the State had not produced all officers who were involved with his arrest. The trial judge declined to do so, stating that the State did not have to bring them forth and that if defendant wanted them to be present he could have subpoenaed them. Defendant thereupon moved for a continuance in order to subpoena the missing officers. The trial court denied defendant's motion as he had not exercised his right to do so prior to the hearing. Defendant did not testify at the hearing, and the motion to suppress his confession was denied.

We consider first whether the trial court erred in denying defendant's motion to suppress his confession.

When the voluntariness of a confession has been challenged, the State has the burden of producing all witnesses material to that issue or explain their absence. (People v. Armstrong (1972), 51 Ill.2d 471, 475-76, 282 N.E.2d 712; Ill. Rev. Stat. 1983, ch. 38, par. 114-11(d).) Defendant argues the rule was violated by the State's failure to call the Lake Forest police officer who had allegedly threatened him with a shotgun and, also, by denying defendant's request for a continuance in order to subpoena the witness. The State responds that any error was waived by defendant's failure to raise this issue in his post-trial motion and, alternately, that the failure to call further witnesses by the State was excused as defendant's motion failed to sufficiently apprise it of the persons responsible for the claimed coercion so as to enable the State to identify and call other material witnesses.

• 1 It is apparent defendant has waived these issues for review as he failed to preserve them by inclusion in his post-trial motion (People v. Precup (1978), 73 Ill.2d 7, 16, 382 N.E.2d 227; People v. Lenninger (1980), 88 Ill. App.3d 801, 804, 410 N.E.2d 1157). In Mincey v. Arizona (1978), 437 U.S. 385, 398, 57 L.Ed.2d 290, 303, 98 S.Ct. 2408, 2416); however, the court held that "any criminal trial use against a defendant of his involuntary statement is a denial of due process of law `even though there is ample evidence aside from the confession to support the conviction.'" (Emphasis in original.) We conclude defendant's contention must be reviewed pursuant to the plain error doctrine of Supreme Court Rule 615(a) (87 Ill.2d R. 615(a)).

• 2 We do not find merit in the State's argument that it was insufficiently advised by defendant's motion to suppress to enable it to call all material witnesses. The motion alleged that at the time of his arrest he was made to lie upon the ground while the police held an empty shotgun to his head and pulled the trigger several times, telling defendant he had better sign a confession or he would not make it to jail. It is also apparent that the officer who guarded defendant during the 20-minute interval while other officers searched the house was not produced as a witness. Nor was defendant permitted to call that officer as a witness in the suppression hearing.

In People v. Glanton (1975), 33 Ill. App.3d 124, 140-41, 338 N.E.2d 30, the court, in discussing production of material witnesses, stated, "The purpose of the requirement is to compel the State to produce those officers who were witnesses to, or who had a role in procuring, the making of the controverted statement." Because of defendant's allegations, it seems apparent that the officer who guarded him was a material witness necessary to the issue of whether defendant's ultimate confession was voluntary. People v. Armstrong (1972), 51 Ill.2d 471, 476, 282 N.E.2d 712; People v. Lumpp (1983), 113 Ill. App.3d 694, 699, 447 N.E.2d 963, appeal denied (1983), 96 Ill.2d 546; People v. Feagans (1983), 118 Ill. App.3d 991, 995-96, 455 N.E.2d 871.

Our conclusion does not require that defendant's conviction be reversed, however, but that it be remanded for a new, full hearing on the voluntariness and admissibility of defendant's confession. (See People v. King (1975), 61 Ill.2d 326, 329, 335 N.E.2d 417; People v. Parquette (1984), 123 Ill. App.3d 233; People v. White (1973), 10 Ill. App.3d 914, 923, 295 N.E.2d 300.) If after hearing defendant's confession is found to be voluntary and admissible, the trial court should enter a new judgment of conviction. If the ...


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