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02/18/88 the People of the State of v. Wayne Pierson

February 18, 1988

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE

v.

WAYNE PIERSON, DEFENDANT-APPELLANT



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, FOURTH DIVISION

519 N.E.2d 1185, 166 Ill. App. 3d 558, 117 Ill. Dec. 18 1988.IL.223

Appeal from the Circuit Court of Cook County; the Hon. Michael Getty, Judge, presiding.

APPELLATE Judges:

PRESIDING JUSTICE JIGANTI delivered the opinion of the court. JOHNSON and McMORROW, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE JIGANTI

Following a jury trial the defendant, Wayne Pierson, was convicted of murder (Ill. Rev. Stat. 1985, ch. 38, par. 9-1) and sentenced to a term of 28 years. He contends on appeal that the trial court erred in denying a motion to suppress his statement and that he was denied a fair trial as the result of certain inflammatory and improper remarks by the prosecutor during closing arguments. The defendant further contends that, if his statement is suppressed, the remaining evidence is insufficient to sustain his conviction for murder.

This cause involves the fatal shooting of Michael Samawi, a store owner, on January 5, 1985. Several days later, the 16-year-old defendant made a statement to the police implicating himself as the offender. At a hearing on the defendant's motion to suppress this statement, the State presented testimony that the police officers investigating the crime were told by the victim's nephew that he had received an anonymous phone call stating that three individuals, the defendant, Alfie Jones and Antoine Hudson, had knowledge of the shooting. Based on this tip the officers went to the defendant's home and obtained permission from the defendant's grandmother to speak with him about the shooting. After a brief conversation, the defendant voluntarily accompanied the officers as they picked up Alfie Jones and drove to the police station. At the station the defendant remained alone in an interview room while the police questioned Alfie Jones. According to the officers' testimony the defendant was not under arrest and was at all times free to leave.

Alfie Jones told the officers that he witnessed the shooting and gave a detailed statement concerning the incident. Jones stated that on January 4, 1985, he, the defendant and Antoine Hudson were at Hudson's house when the defendant produced a .32-caliber revolver which he claimed he had received from William Connor. On the following day they met again at Hudson's house and discussed "possible places that could be stuck up." At this time, the defendant produced the gun and said that it was fully loaded. He said that he was going to rob someone, but Jones and Hudson wanted no part of this plan. At approximately 6 p.m., the defendant left Hudson's house and walked toward 5700 South Morgan. Jones and Hudson, knowing what the defendant had planned, positioned themselves on the north side of 57th Street where they had an unobstructed view of the store located at 5700 South Morgan. They watched as the defendant approached an Arab and a black man who were locking the security gates on the outside of the store. The defendant held the gun in his right hand, approached the Arab and said something. The Arab turned and took a step toward the defendant at which time the defendant fired two shots at him. The Arab moved closer, and the defendant fired two more shots at him. He grabbed his chest and the black man who was with him ran to call the police. The defendant ran east on 57th Street. As he passed Jones and Hudson, he removed a brown ski mask with yellow trim that he had been wearing. Jones had given him the ski mask earlier that day. Meanwhile, the Arab had managed to seat himself in a car awaiting arrival of the police. On the following day, the defendant showed Jones and Hudson four expended cartridge casings from the gun he had used in the shooting.

After hearing Jones' statement, the officers told the defendant that he was under arrest and gave him the Miranda warnings. This occurred approximately two hours after he was brought to the station. After being confronted with Jones' statement, the defendant made the statement which formed the substance of his motion to suppress. According to the officers, no promises were made to the defendant and he was not threatened in any way. They did tell him that he could be prosecuted as an adult.

The testimony presented by the defense at the suppression hearing differed markedly from the State's version regarding what transpired at the defendant's house during his initial contact with the police. According to the defendant's grandmother and other family members, the officers stated that they wanted to talk to the defendant about "gang problems" and would not remove him from the premises. The grandmother told the officers that they could talk to the defendant in the living room. The defendant testified that when they entered the living room, the officers threw him his coat and told him to come down to their car to talk. He had never been arrested before and believed that he was required to go with them. They then locked him in the car and drove to Alfie Jones' house. One officer remained in the car with him as the others went in for Jones, and he did not feel that he was free to leave. The defendant stated that when they reached the police station, he was locked in a room on the third floor and given the Miranda warnings. He did not understand all that was said concerning his rights. One of the officers told him that if he made a statement, the Judge would probably give him probation because he was a juvenile with no prior record.

At the Conclusion of the hearing, the trial court found that the defendant was unlawfully arrested at his home and did not voluntarily accompany the officers to the police station. The court made a specific finding that it believed the testimony of the defense witnesses as to what transpired at the defendant's home and that it rejected the testimony of the police officers on that point. However, the court found that the statement of Alfie Jones supplied the officers with probable cause to arrest the defendant and served as an intervening factor which sufficiently attenuated the taint of the initial illegal arrest. The court therefore denied the defendant's motion to suppress the statement which he made after having been confronted with Alfie Jones' statement.

At trial, Robert Phillips testified that he worked at Michael Samawi's store at 5700 South Morgan in Chicago. At 6 p.m. on January 5, 1985, he and Samawi were locking the security gates when they were approached by a black man wearing a ski mask. The man pointed a gun at them and announced a "hold up." As they turned toward the man, he fired two shots at Samawi and one shot at Phillips, then fled. Phillips helped Samawi, who had been wounded, into a car then called the police. It was stipulated that Samawi died of multiple gunshot wounds in his chest. Phillips testified that he gave a statement to the police shortly after the shooting occurred. The State also introduced into evidence the contents of the defendant's statement, in which the defendant said that he was only trying to scare Samawi and began to shoot because Samawi tried to grab the gun and also appeared to be reaching for a gun of his own.

The facts relating to the allegedly improper remarks made by the prosecutor will be detailed later in connection with our Discussion of that issue.

The defendant first contends that the trial court erred in denying his motion to suppress. He maintains that the statement of Alfie Jones was insufficient to provide probable cause for his arrest because Jones' reliability as an informant had not been established. He further maintains that even if Jones' statement did provide probable cause, it did not constitute a sufficient intervening factor to attenuate the taint of the initial unlawful arrest. The State maintains that the defendant voluntarily accompanied the police and was not arrested until after Alfie Jones' statement provided the necessary probable cause. ...


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