Appeal from the Circuit Court of Cook County; the Hon. Jack
Stein, Judge, presiding.
JUSTICE O'CONNOR DELIVERED THE OPINION OF THE COURT:
Following a joint trial, defendants Tyrone Patterson and David Thomas were found guilty of murder. (Ill. Rev. Stat. 1983, ch. 38, par. 9-1(a)(1).) Patterson was sentenced to 24 years imprisonment; Thomas to 28 years. Their appeals have been consolidated.
The following issues are presented for review: (1) whether the trial court erred in not suppressing certain statements by Patterson that allegedly were made involuntarily and in violation of his sixth amendment right to counsel; (2) whether the trial court erred in denying Thomas' motion for severance; (3) whether Patterson was denied his right of confrontation by restrictions placed upon cross-examination by the trial court; and (4) whether various instances of prosecutorial misconduct deprived defendants of a fair trial. We affirm.
The following facts were adduced at trial. In the early morning hours of August 21, 1983, James Kevin Jackson was killed in a small park in Evanston. The murder occurred after an evening of violent gang-related incidents. Patterson and Thomas were members of the Vice Lords street gang. The victim belonged to a rival gang. Juan McCune, who testified for the State, belonged to a gang friendly with the Vice Lords.
McCune testified at trial that at approximately 3 a.m. on Sunday, August 21, 1983, the victim drove up in front of Thomas' house located at 2113 Dewey Street in Evanston. McCune and the defendants were sitting on the front steps with a third member of the Vice Lords, Carl Harmon. They approached the car and apparently recognized the victim. After words were exchanged, the victim was pulled from the car and beaten. The victim was dragged back into the car and driven to a small park a short distance away. There, the victim was beaten again and thrown face down in a large puddle of water. He was found dead the next day.
The defendants and McCune were arrested on unrelated misdemeanor charges on August 21, 1983. Harmon was not located until after the trial. McCune provided a statement implicating Patterson, Thomas and Harmon in the murder of Jackson. Patterson initially denied knowledge of the homicide, but eventually gave an inculpatory statement to police on August 23, 1983. He had been in custody for 43 hours and was under indictment for the murder at the time he made his statement.
Prior to trial, Patterson moved to suppress his statement to police, and Thomas moved to sever his trial from Patterson's and to exclude evidence of gang membership. The court denied the motions.
At trial, McCune testified as a State witness. The State also presented the testimony of Lequita Adams, an ex-girlfriend of Thomas', and her mother, Nancy Adams, who testified Thomas "as" one of the men involved in the initial attack on the victim. Evanston police officer Michael Gresham testified about Patterson's arrest, his confinement and the circumstances surrounding his initial statement to police. Assistant State's Attorney George Smith testified that Patterson repeated his statement later the same evening.
Patterson did not testify at trial. However, Thomas testified that he withdrew from the incident after the initial attack on the victim. He stated that he followed the car on foot to the park where he stopped about 25 feet away from the others and watched Harmon "making downward motions" with his hands. He then walked home. After closing arguments, the jury found Thomas and Patterson guilty of murder.
Initially, Patterson contends that the trial court erred in refusing to suppress his statement to police. He claims that the statement was taken in violation of his sixth amendment right to counsel, and that the circumstances surrounding his confinement rendered it involuntary. The State asserts that Patterson waived his sixth amendment argument by failing to raise it at trial or to include it in his post-trial motions. Defendant asserts that several exceptions to the waiver rule are applicable here. In view of our disposition of the case, we will assume without deciding that this issue was not waived.
At the hearing on the motion to suppress, Officer Gresham testified that Patterson was arrested on unrelated misdemeanor charges on August 21, 1983. He received Miranda warnings before he was placed in a lockup for the night. The next day, he was visited by his mother and his aunt. On August 23, 1983, Gresham informed Patterson that he had been indicted for murder. Patterson allegedly asked who else had been indicted and Gresham told him that Thomas and McCune had been indicted. Patterson asked why Harmon had not been indicted since "he did everything." Gresham stopped Patterson and gave him Miranda warnings again. He also had Patterson sign a written Miranda waiver form. Patterson then described how he, Thomas, McCune and Harmon initially attacked the victim and then drove him to the park where Harmon beat the victim with clay boulders and threw him in a mud puddle.
Assistant State's Attorney Smith testified that, at about 5:30 p.m. on August 23, 1983, he questioned Patterson about the Miranda rights waiver form and the conditions of his confinement. Patterson said he understood his rights, had no complaints about his treatment, and then he described the incident to Smith.
At the hearings, Patterson denied receiving any warnings about his right to counsel before he gave his statement. He testified that on August 23, Gresham told him that he had been indicted for murder and that Harmon would testify. Gresham also indicated that if Patterson told him what he knew, it would go better for him. He did not sign the Miranda rights waiver form until after he gave his statement.
There is no question but that at the time Patterson gave his statement to police he was under indictment for murder and his sixth amendment right to counsel had attached. What is at issue is whether he ...