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People v. Fleming





Appeal from the Circuit Court of Cook County; the Hon. Lawrence Genesen, Judge, presiding.


Defendant Kevin Fleming was a minor who was charged as an adult with a nine-count indictment as follows: two counts of murder, attempted murder, armed violence based on attempted murder, two counts of aggravated battery, two counts of armed violence based on aggravated battery, and armed violence. Before trial, defendant moved to suppress an out-of-court statement by alleging that he did not knowingly or intelligently waive his right to have an attorney present and that the statement was taken in violation of his sixth amendment right to counsel. After the suppression hearing, the trial court denied the motion. Defendant was subsequently convicted of voluntary manslaughter and armed violence based on aggravated battery with intent to do great bodily harm. He was sentenced to 14 years for each conviction, the sentences to run concurrently.

On appeal, defendant argues three points, that: (1) the trial court erred in denying his motion to suppress because his out-of-court statement was taken in violation of his sixth amendment right to counsel; (2) under the totality of the circumstances, he never knowingly or intelligently waived his right to have counsel present during interrogation; and (3) his extended term sentence for voluntary manslaughter was improper because he was under the age of 17 at the time of the alleged offense.

At the time of the alleged crime, defendant was 15 years old. He lived with his brother Arnold and his grandmother, Mrs. Ida Hammond, who was his legal guardian. Defendant's mother, with whom he had a good relationship, lived next door. Defendant had no prior juvenile history. He had attended grammar school in an educably mentally handicapped class.

In the early morning of August 18, 1981, defendant was involved in a shooting that killed Fred Rogers and wounded his companion, Richard Brookins. The shooting may have been part of a street gang initiation. The next day, defendant left Chicago and went to Connecticut.

Detective Frank Laverty of the Chicago police department investigated the shooting. During his investigation Laverty questioned Richard Blackman, who was with defendant at the time of the incident and who implicated him in the crime. Blackman later became a prosecution witness. About three weeks later, on September 11, 1981, Laverty filed a petition for an adjudication of wardship under the Juvenile Court Act. (Ill. Rev. Stat. 1981, ch. 37, par. 704-1.) The petition charged that defendant was delinquent in that he had allegedly committed the offense of murder and aggravated battery. An arrest warrant issued on the same day.

On September 18, Laverty travelled to Connecticut in an effort to extradite the defendant. Defendant, who was represented by a Connecticut public defender, successfully fought extradition, left Connecticut, and went to Georgia, where he was later arrested in connection with the Chicago shooting.

On or about September 11, defendant's mother retained attorney James Montgomery to represent her son. Detective Laverty admitted under oath that he knew defendant had an attorney before he went to Connecticut and before he and Detective Lawrence Nitsche went to Georgia to apprehend and return defendant to Chicago.

The detectives testified that, upon their arrival in Georgia, they informed defendant of his rights under Miranda v. Arizona (1966), 384 U.S. 436, 16 L.Ed.2d 694, 86 S.Ct. 1602, that: defendant had the right to remain silent; any statement could be used as evidence against him; he had the right to an attorney; and if he could not afford one, an attorney would be appointed. Defendant was also informed that he could be tried as an adult. He testified that after he was given his warnings, he said, "I told them that I wanted to talk to my lawyer, first." The questioning stopped, and the detectives brought defendant back to Chicago, where he was taken immediately to Area 2 Police Headquarters.

Detectives Laverty and Nitsche, along with Youth Officer Robert Purcell, did not notify attorney Montgomery that defendant was in custody, nor did they inform defendant that he had an attorney. Instead, they again gave defendant his Miranda rights and began to question him a second time. Defendant denies that he was read his rights, and he testified that he was questioned for over two hours. Defendant did not make any admission during this interrogation. About 1:30 p.m., Assistant State's Attorney Kathleen McGury arrived to question the defendant.

She testified that she also read defendant his Miranda rights. Defendant denied that he had done the shooting, and after about 15 minutes, McGury left.

While McGury was questioning defendant, Detective Nitsche called Mrs. Hammond, defendant's grandmother, and told her that defendant was in custody. Mrs. Hammond arrived soon after, and she and defendant had a conversation. The detectives remained in the same room, and they claim that during this conversation they overheard defendant tell his grandmother that he had done the shooting. Both defendant and Mrs. Hammond, however, deny that any such statement was made.

At about 3 p.m., Assistant State's Attorney McGury returned. She testified that she again gave defendant his Miranda warnings and that defendant stated that he understood those rights. According to McGury, defendant did not request an attorney, and he voluntarily told her that he had done the shooting. Before she could reduce his inculpatory statement to writing, however, McGury received a call from attorney Montgomery, who informed her that he represented the defendant. At that point, all questioning stopped.

It is significant that Assistant State's Attorney McGury's written report to her superior does not indicate that defendant was given his Miranda warnings before questioning began. In addition, a supplemental report written by Officer Purcell, who was also present, corroborates the omission because his report also does not ...

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