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People v. Cannon

OPINION FILED DECEMBER 11, 1986.

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

v.

DARRELL CANNON, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Cook County; the Hon. Thomas J. Maloney, Judge, presiding.

JUSTICE JOHNSON DELIVERED THE OPINION OF THE COURT:

Defendant, Darrell Cannon, was convicted of murder (Ill. Rev. Stat. 1981, ch. 38, pars. 9-1(a)(1), (a)(2)), based on accountability, following a jury trial in the circuit court of Cook County. The trial judge sentenced defendant to the penitentiary for a term of natural life.

On appeal, defendant contends that he did not receive a fair trial because (1) the trial judge refused to suppress admissions that he made under police coercion; (2) the State did not disclose to the defense, during discovery, certain oral statements that he made; (3) the trial judge refused to give a jury instruction on prior inconsistent statements and an instruction on concealment of homicidal death; (4) the State referred to his street-gang affiliation throughout the trial and also referred to his admissions as a confession during closing argument; (5) the trial judge improperly sentenced him to a term of natural life; and (6) the State used its peremptory challenges during voir dire to exclude black venirepersons from the jury.

We affirm in part and remand, with directions.

Testimony at trial adduced the following facts. Darren Ross (the victim) and Kenneth Steele were both drug dealers. On October 26, 1983, at approximately 1 p.m., they went to 79th Street and Essex Avenue, in Chicago, to sell cocaine. When they arrived, Tyrone and A.D. McChristian were standing at that corner. Tyrone approached Ross and whispered in his ear while A.D. entered a blue (with a white half-top) 1975 Buick and drove away. Ross walked away. Steele did not see Ross alive again.

On the same day, Officer Henry Glees was assigned to the fifth police district and was working around 133rd Place and Evans Avenue, near the Altgeld Gardens housing project. Pursuant to a citizen's report, Officer Glees went to 13430 South Evans Avenue, at approximately 3:45 p.m., where he found a body (later identified as that of Darren Ross), which had a gunshot wound to the head.

Detective James O'Rourke, who also investigated the body at the above location, identified the dead person as Darren Ross by comparing fingerprints to those on file at the Chicago police department. Detective O'Rourke then went to Ross' last known address where he spoke with family members. Ross' brother then accompanied Detective O'Rourke to meet Kenneth Steele. After talking with Steele, O'Rourke began to look for A.D. and Tyrone McChristian, and A.D.'s automobile. The officer found the car the next day, October 27, 1983. The car was registered under an alias that A.D. once used. The car contained bloodstains that were the same blood type as that of the victim.

Detective Dan McWeeny was assigned to the Ross investigation on October 27, 1983. After several unsuccessful attempts, he found Tyrone McChristian at a billiard hall on the corner of 79th Street and Essex Avenue. McWeeny identified Tyrone from a photograph and approached him. Tyrone agreed to speak with McWeeny and accompanied him to police headquarters. Tyrone spoke with the officer twice again on October 29, 1983. After these conversations, McWeeny began his search for defendant.

Later that day, Detective McWeeny obtained a photograph of defendant, which Tyrone identified. On November 1, 1983, the police obtained a warrant for the arrest of A.D. McChristian and defendant. Chicago police officers arrested defendant on the morning of November 2, 1983.

Detective McWeeny testified at trial that he spoke with defendant at police headquarters on the day of his arrest. He told defendant that Tyrone McChristian implicated him in the murder of Ross. Defendant then stated that A.D. McChristian shot Ross.

McWeeny further testified that defendant made the following statement: Defendant arranged to meet A.D. McChristian at the 79th Street billiard hall on October 26, 1983. When defendant arrived, Tyrone was there instead of A.D. Tyrone then told defendant the problem he and A.D. were having with Ross. McWeeny asked defendant whether he knew what was going on. Defendant answered, "Yeah, I figured it out. I knew what was going down." McWeeny then asked why A.D. wanted Ross dead. Defendant answered that Ross did something to someone that A.D. was protecting.

Defendant continued his statement to McWeeny. Tyrone told defendant that A.D. wanted him to get a gun. Tyrone and defendant then drove, using defendant's car, to a building that defendant entered and exited with a .32-caliber revolver. Tyrone then took defendant's car and directed him to a house where he met A.D., Ross, and a woman.

A.D. asked defendant, in private, whether he brought the gun; defendant gave it to A.D. while Ross was not looking. Defendant, A.D., and Ross eventually left the house, the woman stayed behind. With A.D. driving, the three went to a restaurant. After leaving the restaurant, A.D. instructed defendant, again in private, to drive to Altgeld Gardens. Ross sat in the back seat while A.D. sat in the front passenger seat, and defendant drove. As the car approached 103rd Street, A.D. turned and shot Ross in the head. A.D. then placed a coat over the victim's head in an attempt to prevent bloodstains from getting on the car. A.D. and defendant then drove to a secluded prairie area behind Altgeld Gardens where they dumped the body. A.D. then drove back to the 79th Street billiard hall. There, defendant retrieved his car from Tyrone and said, "This day never existed."

On April 13, 1984, the jury found defendant guilty of murder, based on accountability, and the trial judge entered judgment thereon. At the close of a sentencing hearing on June 20, 1984, the trial judge sentenced defendant to the penitentiary for a term of natural life. Defendant appeals.

I

Defendant first contends that the trial judge erred in denying his motion to suppress the statements that he made to police on the day of his arrest. He argues (A) that the trial judge's ruling was against the manifest weight of the evidence, and (B) that the trial judge considered information outside of the record in denying the motion to suppress.

The trial judge convened a pretrial suppression hearing on February 23, 1984. At the hearing, defendant testified that Chicago police officers arrested him at 7 a.m. Later that day, while still in their custody, they took him to a remote place where they tortured him. While handcuffed with his hands behind his back, a police officer placed an unloaded shotgun in his mouth and asked him the whereabouts of A.D. McChristian. When he did not answer, the officer pulled the trigger. The officers next produced an electric cattle prod and applied it to his exposed reproductive organs. He remained silent. The officer then increased the voltage and repeated the procedure. He then told the officers anything they wanted to hear.

Defendant further testified that after driving to several locations, the officers took defendant to the police auto pound where he answered more questions. When defendant then refused to repeat his admissions to an assistant State's Attorney, the officers took the cattle prod from the glove compartment of their car and repeated its application to defendant's exposed reproductive organs. Defendant again agreed to tell them anything they wanted to hear. Detective McWeeny appeared and defendant made a statement to him. They returned to police headquarters where defendant made a statement to Assistant State's Attorney Henry Simmons in Detective McWeeny's presence.

On cross-examination, however, defendant admitted that he said nothing of the alleged torture to Assistant State's Attorney Simmons. Defendant went to the lockup after giving his statement; he did not tell anyone there that he needed medical treatment. Defendant also did not mention his alleged torture to the judge at his arraignment the next morning. After arraignment, defendant was taken to Cook County jail where a paramedic examined him; he did not mention the alleged torture.

The State called as witnesses the police officers who arrested defendant, Detective McWeeny, and Assistant State's Attorney Simmons. The officers denied that they tortured defendant or coerced him in any way. The police officers essentially testified that after they arrested defendant he told them the whereabouts of A.D. and offered to take them there. Their search was unsuccessful. They next went to police headquarters where Detective McWeeny told defendant that Tyrone implicated him in the murder. Defendant then gave a statement and offered to show the officers where he and A.D. placed the body. Defendant then took the officers to the same place where they found the body.

The State's witnesses further testified that they next took defendant to the police auto pound where he identified the blue 1975 Buick that he drove on the day of the murder. They next went to another police station to confer with more police. After another unsuccessful search for A.D. McChristian, they returned to police headquarters.

At the station, Assistant State's Attorney Simmons, after advising defendant of his rights, heard defendant's statement in McWeeny's presence. Defendant later repeated his statement before a court reporter; he also read aloud his typed statement and signed it. Defendant did not assert his right to remain silent or to have an attorney present; he did not complain that the police tortured him.

At the close of the hearing, the trial judge found that the State's evidence outweighed and contradicted defendant's evidence and, accordingly, denied defendant's motion to suppress.

A

• 1 Defendant first contends that the trial judge's denial of the motion to suppress was against the manifest weight of the evidence. An individual who is subjected to custodial police interrogation concerning matters that might tend to incriminate him is entitled to the procedural safeguards that the United States Supreme Court outlined in Miranda v. Arizona (1966), 384 U.S. 436, 16 L.Ed.2d 694, 86 S.Ct. 1602. The person interrogated may waive these rights, but a heavy burden rests on the State to show that he waived his constitutional rights knowingly and intelligently. (384 U.S. 436, 475, 16 L.Ed.2d 694, 724, 86 S.Ct. 1602, 1628.) We must, therefore, initially determine whether defendant knowingly, intelligently, and voluntarily waived these rights. People v. Martin (1984), 102 Ill.2d 412, 426, 466 N.E.2d 228, 234.

Whether a defendant makes a statement voluntarily depends on the totality of the circumstances. The test is whether the defendant made the statement freely, voluntarily and without compulsion or inducement of any sort or whether the defendant's will was overcome at the time he confessed. In making its decision, the trial court need not be convinced beyond a reasonable doubt, and we will not disturb its findings unless they are against the manifest weight of the evidence. People v. Prim ...


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