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12/16/87 the People of the State of v. Andrew Burke

December 16, 1987

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE

v.

ANDREW BURKE, DEFENDANT-APPELLANT



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, THIRD DIVISION

518 N.E.2d 372, 164 Ill. App. 3d 889, 115 Ill. Dec. 847 1987.IL.1852

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

APPELLATE Judges:

JUSTICE FREEMAN delivered the opinion of the court. McNAMARA, P.J., and WHITE, J., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE FREEMAN

Defendant, Andrew Burke, and Geoffrey Freeman were charged by information in the circuit court of Cook County with several offenses arising from the January 22, 1981, murder and armed robbery of Madeline Mullenix. The causes were severed and defendant and Freeman were tried separately. A jury convicted defendant of murder and armed robbery. Judge Lawrence Genesen sentenced defendant to natural life imprisonment for the murder and 30 years for the armed robbery after Judge Richard Petrarca had sentenced Freeman to natural life imprisonment and then recused himself.

Madeline Mullenix disappeared on January 22, 1981. Her two sons searched for her in the days after the 22nd. One son, Vern Mullenix, spotted her 1978 Ford automobile near 123rd and Halsted Streets in Chicago on January 25. He noted that the Ford had license plates bearing ZT 906. He gave the Calumet Park police this information and they determined that the license plates belonged to Jack Burke, defendant's grandfather. Later on the 25th, Chicago police officer Patrick Murphy went to Jack Burke's home and learned from him that the license plates on the Ford had been taken from his automobile. Officer Murphy also learned that defendant worked at the Secretary of State's facility at 99th Street and King Drive in Chicago. Mrs. Mullenix's sons again spotted the Ford on the 26th in front of 12246 S. Lafayette in Chicago. When Officer Murphy arrived there, he inspected the car and saw that it had a temporary registration permit in the name of Geoffrey Freeman. The police then broke into the car and found several items belonging to Mrs. Mullenix and Geoffrey Freeman's driver's license. Shortly thereafter, the police located and arrested Freeman. Freeman eventually led the police to a spot near 134th and Maryland Streets where Mrs. Mullenix's body was found in some underbrush. While Freeman did so, Officer Murphy went to the Secretary of State's facility to arrest defendant.

After arresting him, Officer Murphy advised defendant of his Miranda rights and defendant responded that he understood them. After he was taken to Area 2 headquarters, where Freeman had also been taken, Detective Dennis McGuire advised defendant of his Miranda rights and defendant again indicated he understood them and agreed to talk. Detective McGuire then informed defendant of the investigation of Mullenix's murder and that he was a suspect. After defendant denied participating in the crime, McGuire told him that Freeman was in custody. Defendant admitted knowing Freeman but denied having been with him on January 22. He claimed that he was with a friend on that date. McGuire then told defendant that Freeman was claiming that defendant had shot and killed Mrs. Mullenix, that his license plates had been found on her car, and that the friend defendant claimed being with on January 22 denied that he was with her then. Defendant then admitted having been with Freeman and stated that if his handcuffs were removed he would talk.

Defendant told the police that he and Freeman had been out looking for a car for Freeman when they observed the victim's car at a hamburger stand near 127th Street and the "expressway." Freeman, who had a gun, told defendant to stop the car. As he approached the car, Freeman noticed someone watching and stopped at a phone booth as if making a call. The victim then drove off and Freeman returned to defendant's car and told him to follow the victim. As they were following the victim's car, Freeman told defendant to "bump" the victim's car. When defendant did so, Mrs. Mullenix pulled over. Freeman then got out of defendant's car, walked to the driver's side of the victim's car, had a short conversation with her and then shot her. Mrs. Mullenix then blew the car horn and Freeman pushed her over to the passenger side and got in her car. Freeman then drove the victim's car to the Altgeld Gardens housing project and defendant followed in his car. When they stopped, Freeman took the victim's body out of the car and dumped it. When defendant realized the victim was dead, he fought with Freeman because of her death. Defendant then left to go to his friend's house and at the time had possession of the gun Freeman used to shoot the victim. Defendant hid the weapon in the heating duct of his friend's house.

After defendant made this statement, Detective McGuire contacted the State's Attorney's Felony Review Unit. Assistant State's Attorneys Farrell and Weintroub arrived at Area 2 headquarters in response. Thereafter, Farrell questioned defendant in the presence of Detective Tosello after advising defendant of his Miranda rights. Defendant responded that he understood those rights. Defendant then gave Farrell a second statement, which was consistent with the first. Farrell then spoke with Freeman out of defendant's presence and brought them together after each accused the other of shooting the victim. When brought together, defendant and Freeman still maintained the other had shot Mrs. Mullenix. Thereafter, Weintroub spoke to defendant in Detective Mosher's presence after advising defendant of his constitutional rights, which defendant again indicated he understood. After indicating his willingness to speak to Weintroub, defendant responded to questioning for 90 minutes. Thereafter, Weintroub asked defendant if he wanted his statement put in writing and defendant said yes.

Later that evening, Weintroub took another statement from defendant in Farrell's and Mosher's presence, which was transcribed by a court reporter. At this time, defendant was again advised of his Miranda rights and defendant responded that he understood them and that he wanted to talk. After the statement was typed, Weintroub gave it to defendant and asked him to read it. Defendant asked Weintroub to read it to him. After he did so, defendant initialed each page, pointed out a mistake in the numbering of the pages, initialed the correction, and signed the statement.

Defendant and Freeman were charged with murder, conspiracy, aggravated kidnapping, burglary, theft, possession of a stolen motor vehicle, armed violence and armed robbery. After the causes were severed, defendant filed a motion to suppress his statements on the grounds that, inter alia, he could not knowingly and intelligently waive his Miranda rights because of his limited mental capacity.

Defendant adduced the following evidence at the hearing: when he "graduated" from grammar school in 1975, at 15, his grade level was 2 to 2.5; when he finished high school in 1979 his achievement level, including his comprehension, had not improved and he was still functioning at a nine-year old's level; administration of standardized academic achievement tests revealed that defendant had not progressed since high school; defendant's performance on the Wechsler Adult Intelligence Test revealed that he had an I.Q. of 62, placing him in the bottom subfraction of the bottom 1% of the general population; defendant also suffers from developmental aphasia, a "neurodevelopmental" condition affecting the ability to accomplish mental tasks such as the processing of language; defendant also has difficulty learning new terms in an unfamiliar environment and suffers from a "bilateral central nervous system disorder" affecting his sensory perception; another standardized test designed to measure memory, learning, problem solving and abstraction revealed that defendant was impaired in all of those areas, especially in understanding cause and effect, and had a very bad memory; defendant is easily confused and vulnerable to environmental manipulation; despite a very adaptive social facade, defendant has difficulty understanding what is going on; further testing and examination of defendant's school records and family history revealed that his language skills are significantly low and that he may give the impression that he understands more than he actually does.

Additionally, defense counsel hypothetically asked the clinical psychologist who tested defendant whether, based on the facts of defendant's questioning by the police, he could have understood his Miranda rights and effectively waived them. He responded that he was not sure whether repetitions of the rights would make any difference, that while defendant would have a reasonable sense of the meaning of each word there was not "one chance in a million" that he would understand the "intent" of all the words, and that he could not waive his rights because he did not understand them. Defendant testified that: he does not want people to know that he has difficulty understanding things; he did not know what an assistant State's Attorney was; when arrested he did not know what an attorney was but had since learned that he defended people; he did not know the meaning of "remain" but knew that "silent" meant "[be] quiet"; "right" meant to "write a letter" or "you can be right"; he did not know the meaning of "waive" or what a ...


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