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People v. Cooney





Appeal from the Circuit Court of Du Page County; the Hon. Harry D. Strouse, Judge, presiding.


Rehearing denied November 5, 1985.

The defendants, Donald Loder (Loder) and Kevin Cooney (Cooney), were charged in a delinquency petition with the May 15, 1981, armed robbery and murder of Zigfield Troy. The juvenile court, on motion by the State, entered an order permitting prosecution of the defendants under the criminal laws. (Ill. Rev. Stat. 1981, ch. 37, par. 702-7(3).) A Du Page County grand jury subsequently returned indictments charging each defendant with murder (four counts), armed robbery (one count), and armed violence (one count). Following joint pretrial proceedings, the defendants were tried separately, Cooney being tried first and Loder being tried immediately thereafter. Following their jury trials, the defendants were found guilty of all counts. The armed violence convictions were vacated and each defendant was sentenced to concurrent terms of imprisonment of 40 years for murder and 30 years for armed robbery. Each defendant appealed and this court granted a defense motion to consolidate the two appeals.

On appeal, the defendants raise issues concerning the constitutionality of the juvenile transfer statute; the enforceability of a plea agreement; the admissibility of evidence seized and confessions obtained from the defendants; the propriety of excluding testimony of certain defense witnesses; the propriety of several evidentiary rulings made during the defendants' trials; and the propriety of the sentencing judge's conclusion as to the availability of natural life imprisonment as a possible sentence. We affirm.

In order to avoid unduly lengthening this opinion, the facts will not be recited in detail. Instead, the facts necessary to understand each issue will be noted when the particular issue is discussed.

Most of the issues raised pertain only to one or the other, but not both, of the defendants. Those issues common to both defendants concern rulings on pretrial motions to suppress which were considered at a consolidated hearing in the trial court. The suppression hearing issues will be discussed first, then Loder's other issues, and finally Cooney's other issues.

The defendants have taken somewhat different approaches to the suppression issues. Loder argues that Dunaway v. New York (1979), 442 U.S. 200, 60 L.Ed.2d 824, 99 S.Ct. 2248, was violated by the police in obtaining his confession. Cooney argues initially that Miranda v. Arizona (1966), 384 U.S. 436, 16 L.Ed.2d 694, 86 S.Ct. 1602, was violated in obtaining his confession, but also argues the claimed Dunaway violation. Each defendant also asserts his confession was involuntary. Finally, Loder argues that the police violated Miranda by not scrupulously honoring his expressed desire to remain silent.

It is initially necessary to discuss a contention of Cooney's concerning the propriety of the entry of his home by police officers the morning after Zigfield Troy was killed since, if Cooney's contention were correct, it would have implications concerning the admissibility of all the evidence and statements subsequently obtained. Late the night of May 15, 1981, Troy's body was found at a golf range he owned and operated. He had been stabbed 36 times and had been robbed. About 3:50 a.m. the next morning, Officers Gregory Busiedlik and Michael Calcagno went to Cooney's house. Helen Cooney, Cooney's mother, allowed the officers to enter. Cooney claims that her consent to the entry was vitiated by deception by the police officers as to their purpose in wanting to talk to Cooney and Loder, both of whom were sleeping in the basement of the house. This contention is without basis in the record.

• 1 Helen Cooney, a defense witness at the suppression hearing, testified that the officers told her they wanted to talk to her son about an "incident" at the Troy Golf Range. On other occasions after they entered, the police officers also referred to what they were investigating as an "incident." On cross-examination, Helen Cooney acknowledged that, at the house, neither she nor the defendants ever asked the officers to explain what they meant by the word "incident." There was simply no deception of Helen Cooney on these facts. The officers could certainly have been more specific in their reference to the murder; however, the meaning of the word "incident" is sufficiently broad to encompass a murder. (See Webster's New Collegiate Dictionary 575 (1979).) While the officers were not entirely forthcoming about their reasons for wanting to talk to Cooney, they did not deceive Helen Cooney to gain entry to the house. Her consent, therefore, was not vitiated by police deception.

Cooney's Miranda issue and both defendants' Dunaway issues may be discussed together because of their inter-relationship. A necessary predicate to the defendants' prevailing on either of these issues is that they have been in custody at the time they were interrogated. Miranda v. Arizona (1966), 384 U.S. 436, 16 L.Ed.2d 694, 86 S.Ct. 1602; Dunaway v. New York (1979), 442 U.S. 200, 60 L.Ed.2d 824, 99 S.Ct. 2248.

"In determining whether a statement was made in a custodial setting, a court must look to all of the circumstances surrounding the questioning, with no single factor deemed controlling, and then objectively evaluate whether a reasonable, innocent person would have believed that he was free to leave or was expressly or impliedly bound to remain in the presence of the police. [Citations.]" (People v. Finklea (1983), 119 Ill. App.3d 448, 451-52, 456 N.E.2d 680, 682.)

The trial court found that the defendants were not in custody until they gave their inculpatory statements. The narrow question before this court is not whether the trial court was correct in this regard, but rather whether the finding of no custody was contrary to the manifest weight of the evidence. People v. Clay (1984), 124 Ill. App.3d 140, 148, 463 N.E.2d 929, 936; People v. Metoxen (1983), 121 Ill. App.3d 472, 477, 459 N.E.2d 975, 979.

• 2 There was testimony at the suppression hearing which, if believed by the trial court, was sufficient to support the trial court's finding of no custody. As noted previously, the police officers entered the Cooney home with the consent of Helen Cooney. It is undisputed — the trial court having found, the defendants both stating in their briefs, and the State not contesting in its brief — that at this time the officers did not have probable cause to arrest the defendants. Mrs. Cooney, at the officers' request, had the defendants come up from the basement where they had been sleeping. The defendants were told that the police were investigating a "problem" or an "incident" which had occurred the previous night at the Troy Golf Range. The defendants gave exculpatory statements as to their whereabouts the previous night. At the request of the officers, the boys showed the clothing which they had worn that night. Some of the items were in the basement, and the officers accompanied the boys to view them. Several items were taken by the officers to the police station with the permission of the owners of the items. After they went back upstairs, the officers asked if the boys would be willing to come to the police department, and Helen Cooney agreed they would be. Mrs. Cooney asked if she was to go with the boys and was told that would not be necessary. The boys left with the officers.

The defendants rode, unhandcuffed, in the back seat of the unmarked squad car the officers were using. On the way to the station house, one of the boys said he did not think they could be much help. Officer Calcagno, who was driving, either slowed or stopped the car and offered to return the boys home. One of the boys said that they did not mind going and would see what they could do to help the officers. At the police station, they were admitted through a buzzer-operated door. The boys were taken to separate rooms to write out their statements. The officers asked for additional details and pointed out inconsistencies. Cooney was advised of and waived his Miranda rights. He was questioned further until he asked to see Loder. The officers agreed to let him talk to Loder, but not alone. Loder was informed of Cooney's request and was also advised of his Miranda rights. The trial court apparently also believed Loder waived his rights. Although this waiver is not so clear as Cooney's, it is unnecessary to decide whether it was sufficient since the trial court's finding that the defendants were not then in custody was not manifestly erroneous. Cooney was brought into the room where Loder was and asked Loder if they should tell the police. Loder, placing his head in his hands, said to go ahead, and Cooney told the police how they had committed the armed robbery and murder of Zigfield Troy.

The trial court was justified in concluding that the defendants voluntarily accompanied the police to the station; that the police considered, and treated, the defendants to be possible witnesses up until they inculpated themselves; and that a reasonable, innocent person would have believed himself free to leave, especially in light of the offer by the police in the car to take the defendants home. This last point is of special importance, since the conduct of the officers at the station could properly be viewed by the trial court as in no way undermining this offer, and the offer could be viewed as making it clear that the defendants could leave if they wished. Therefore, it was not manifestly erroneous for the trial court to find that the defendants were not in custody until they confessed, and, accordingly, their Dunaway and Miranda issues must fail.

• 3 The defendants also contend that their confessions were involuntary. The Illinois Supreme Court has stated the rules governing review of this issue as follows:

"Whether a statement is voluntarily given depends upon the totality of the circumstances. The test is whether it has been made freely, voluntarily and without compulsion or inducement of any sort or whether the defendant's will was overcome at the time he confessed. [Citation.] In making its decision the trial court need not be convinced beyond a reasonable doubt, and the finding of the trial court that the statement was voluntary will not be disturbed unless it is contrary to the manifest weight of the evidence. [Citations.]" (People v. Prim (1972), 53 Ill.2d 62, 70, 289 N.E.2d 601, 606.)

As noted in discussing the Dunaway and Miranda issues, it was not manifestly erroneous for the trial court to conclude that the defendants were, and knew they were, free to leave the police station at any time until they made their inculpatory statements. The trial court's finding that they were not subjected to coercion or duress was also not manifestly erroneous. Moreover, there is no indication in the record that the defendants were promised anything in return for confessing.

A police officer did tell Cooney to get it off his chest and to be a man. The trial court found that this occurred after Cooney had been admonished as to his rights and that it was not coercion or duress under the circumstances. It is also noteworthy that a similar statement by a police officer to a young suspect did not render a confession involuntary in People v. Wipfler (1977), 68 Ill.2d 158, 368 N.E.2d 870. The trial court's determination that the confessions were voluntary was therefore not manifestly erroneous.

Our holding in this regard is made with full awareness that the defendants were young (16 years old), of limited educational attainment (one a dropout and the other a poor student), and without any prior meaningful contact with the police. While these facts make the issue raised a closer one than it would otherwise be, they do not tip the scales to such an extent as to make the trial court's decision manifestly erroneous.

Loder additionally contends that the police, contrary to the requirements of Miranda v. Arizona (1966), 384 U.S. 436, 16 L.Ed.2d 694, 86 S.Ct. 1602, continued to question him after he indicated that he desired to remain silent. The statements on which Loder has premised this argument were not expressions of a desire to remain silent. Instead, they were assertions by Loder that he did not know anything more than was in his written statement. Since Loder did not express a desire to remain silent, this contention is without merit. See People v. Milner (1984), 123 Ill. App.3d 656, 463 N.E.2d 148; People v. Aldridge (1979), 68 Ill. App.3d 181, 385 N.E.2d 396.

Each defendant has raised issues the other has not about aspects of the circuit court proceedings. Loder, whose separate issues will be discussed first, has raised issues concerning pretrial plea bargaining, the admission into evidence at trial of certain photographs, and the exclusion of the testimony of two defense witnesses as a sanction for a discovery violation.

• 4 We will first discuss Loder's issue with respect to a tentative plea agreement between the parties prior to trial. Under the agreement, the defendants would plead guilty to murder in return for sentences of 27 years' imprisonment. The agreement was disclosed to Judge Bruce Fawell who, the parties agree, conditionally concurred in the proposed disposition. The judge indicated that he would go along with what the State had agreed to as long as the defendants had no previous felony or serious misdemeanor convictions. The judge was somewhat, but not completely, familiar with the circumstances of the crime and, in response to questions from Loder's trial counsel, indicated that, despite these circumstances, he still would not "give him [the prosecutor] any problem on" the 27-year sentence agreed to. At a subsequent hearing, Judge Fawell withdrew his conditional concurrence because the plea report showed that the murder had been senseless and brutal and he thought the 27-year sentence agreed to was much too low.

Loder argues that once the trial judge conditionally concurred in the proposed disposition, he was bound by the terms of his conditional concurrence. In the case at bar, this would mean the judge could withdraw his concurrence only on the basis of prior criminal conduct by the defendants. Since the withdrawal was premised on the circumstances of the offense, the argument goes, it was wrongful. Loder further contends that the remedy to which he is entitled is specific performance of the tentative plea agreement in accordance with the judge's conditional concurrence.

The trial judge was neither deceived nor misinformed when he conditionally concurred; indeed, defense counsel tried to bring to the judge's attention the very circumstances which later led the judge to withdraw his concurrence. The defendant never pleaded guilty nor did he rely to his detriment on the judge's conditional concurrence in the proposed disposition. The issue presented then is quite basic: Is a defendant entitled to ...

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