APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, FIFTH DIVISION
525 N.E.2d 1119, 171 Ill. App. 3d 993, 121 Ill. Dec. 812 1988.IL.949
Appeal from the Circuit Court of Cook County; the Hon. James Schreir, Judge, presiding.
JUSTICE MURRAY delivered the opinion of the court. LORENZ, P.J., and SULLIVAN, J., concur.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE MURRAY
After a jury trial, defendant Vincent Brown was convicted of murder (Ill. Rev. Stat. 1983, ch. 83, par. 9-1) and sentenced to 30 years' imprisonment. On appeal, defendant contends that: (1) the trial court erred in failing to suppress his oral and written statements; (2) he was denied effective assistance of counsel; (3) he did not knowingly and voluntarily waive his right to remain silent; (4) the evidence was insufficient to convict him; and, alternatively, (5) his sentence is excessive. For the reasons set forth below, we reverse and remand the cause for a new trial.
Defendant, a 16-year-old minor, was arrested for the murder of Reynaldo Reyes. The murder appeared to be gang related. Reyes, a member of the Latin Disciples, was shot at a gas station while he and a companion were using the station's air pump to put air in the tires of a bicycle. Defendant, a member of the Latin Kings, testified at trial that although he was present at the time of the shooting, his initial codefendant in the lower court, Jose Berrios, also a member of the Latin Kings, shot Reyes and that he did not know at any time prior to the shooting that Berrios had a gun and subsequently intended to shoot the victim.
Contrary to defendant's testimony, however, the State introduced a written confession signed by defendant in which he stated that he knew, prior to the shooting, that Berrios had a loaded gun and that Berrios intended to shoot Reyes and his companion. The State also presented three witnesses who variously testified that on the day of the incident they saw defendant with Berrios walking down the street near the gas station, "looking around nervously and chatting to each other"; that defendant had a stick in his hand; defendant and Berrios were subsequently looking into the gas station and talking to each other; that it was unusual for defendant and Berrios to be at the gas station because the area was considered to be the Latin Disciples' territory; that defendant and Berrios walked back and forth in the alley behind the gas station property; that while Berrios remained in the alley, defendant jumped a fence railing onto the gas station property and looked toward the station's air hose, where the victim was standing; that after defendant returned to the alley, he and Berrios went behind a billboard and Berrios crouched underneath and looked toward the air hose; and that thereafter defendant and Berrios walked behind the fence, "peeking" through the slats of the fence directly behind the air hose. Two of the witnesses further stated that after hearing a shot, they saw Reyes stumble and fall forward towards the air pump, and one of them also saw Berrios and defendant run northbound in the alley immediately afterwards. None of the witnesses saw the actual shooting, nor had they seen defendant or Berrios carrying a gun.
Based on the above facts, the jury found defendant guilty of murder. At defendant's sentencing hearing, the trial Judge stated that he believed defendant, and not Berrios, shot the victim and, accordingly, sentenced defendant to 30 years' imprisonment. Defendant's subsequent motion for a new trial was denied, and this appeal followed.
Defendant's first argument, that the trial court erred in failing to suppress his court-reported statement, centers around the following colloquy between defendant and the assistant State's Attorney after defendant had separately answered that he understood each Miranda right read to him by the assistant State's Attorney:
"Q. All right. Understanding these rights do you wish to talk to us now?