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02/15/89 the People of the State of v. Tracy Stofer

February 15, 1989

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE

v.

TRACY STOFER, DEFENDANT-APPELLANT



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, THIRD DIVISION

534 N.E.2d 1287, 180 Ill. App. 3d 158, 128 Ill. Dec. 682 1989.IL.188

Appeal from the Circuit Court of Cook County; the Hon. Matthew J. Moran, Judge, presiding.

APPELLATE Judges:

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

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE MCNAMARA

Defendant, Tracy Stofer, was found guilty of two counts of murder following a bench trial and was sentenced to a term of 23 years. Defendant appeals, contending that the trial court erred in not suppressing his confession after finding he was arrested without probable cause; that defendant was not proved accountable for the murder beyond a reasonable doubt; that the sentence is excessive; and that it was error to find him guilty on two counts of murder where there was one victim.

Nathaniel Corley, a 16-year-old, was shot and killed at 2:15 a.m. on March 3, 1985. Defendant was subsequently charged along with Ramsey Lewis and Steve Avery. Avery and Lewis accused defendant of shooting Corley, and defendant countered that he drove the car and either Lewis or Avery shot Corley. Defendant's motion for severance was granted. (Lewis and Avery were also convicted, and this court has reversed those convictions and remanded for new trials. People v. Avery (1989), 180 Ill. App. 3d 146.

A joint hearing was held on the three codefendants' motions to suppress their statements made to the police. After the initial hearing, the trial court ruled that defendant was not under arrest when he was originally removed from his home and taken to the police station for questioning. After six hours at the station, he was placed under arrest, but without probable cause. After a second hearing, the trial court concluded that the few hours between the illegal arrest without probable cause and the first inculpatory statement by Lewis, when probable cause to arrest arose, was sufficient to purge any taint. Thus, the motion to suppress defendant's statements was denied.

At the hearing on the motion to suppress, defendant testified that on March 3, 1985, at 11 a.m., the police arrived at his home. His mother, Mrs. Ada Ford, called defendant downstairs from his bedroom. Officers Peter Dignan and Barry Costello, who were not in uniform, were waiting in the living room. Mrs. Ford asked whether they had an arrest warrant. Dignan replied, "No, but he's going down to the station with us." Mrs. Ford asked, "Can you talk to him here?" Dignan replied that they would question defendant at the police station. The officers and Mrs. Ford argued about the absence of an arrest warrant. Dignan told defendant to go upstairs and dress, which he did. When he returned, Dignan put his hand on defendant's back and said, "Let's go."

Costello opened the front door and walked out. Defendant followed, and Dignan came last. Defendant was not handcuffed, but he did not feel free to remain at home. They entered an unmarked police car. Dignan opened the back door and motioned defendant into the car. Costello put his hand on defendant's shoulder. Defendant entered, and Costello shut the door. Dignan locked the rear doors from the front of the car.

At the police station, defendant walked to the interrogation room with one officer on each side of him. In response to the officers' questions, defendant denied knowing anything about the Corley murder. They did not give defendant his Miranda rights. Defendant did not ask if he could leave. After the first questioning period, defendant was handcuffed, and Dignan struck defendant on the head several times. The officers then left defendant alone in the room.

Costello testified that he picked up Lewis and Avery and drove them to the station after defendant told the police he had been with them the previous night.

Officer John Yucaitas testified that the shooting occurred at 2:15 a.m. The victim's mother informed Yucaitas of the names of Corley's friends. At 9 a.m., three of those friends, Eric Tate, Harry Elligan, and Tony Flemming, were brought to headquarters for questioning. They were separated. Tate told Yucaitas that on the night of the murder, the victim had told Tate, "Watch your back. Someone might shoot you." Tate and the victim left a dance and walked to McDonald's. At the dance, at McDonald's, and at a friend's house later, Tate saw three males driving in a gray, two-door Ford Escort hatchback, with papers in the window indicating it was new. The car drove very slowly and appeared to be following them. Elligan told Yucaitas that he last saw the victim on Elligan's front porch at 2 a.m., talking with Elligan's cousin. Yucaitas gave this information to Dignan and Costello, who took over the investigation at about 10 a.m.

Dignan testified that on that day he and Costello interviewed Flemming. Flemming said that on the night before the March 3 murder, he and the victim were accosted by two black males. Flemming said he would try to find out their names. Flemming telephoned within an hour to report that he and a friend had looked through the high school yearbook. They identified defendant as one of the males who had chased them with a pole the night before the shooting.

Dignan and Costello went to defendant's home, where they noted a new gray, two-door, Ford Escort hatchback with a dealer sticker in the window, parked in front of defendant's home. The car matched the description given by Tate.

Dignan testified that defendant's mother was told they were investigating the shooting. Defendant's name had been mentioned as the person who had an altercation with Flemming and the victim the previous Friday night. "And we wanted to talk to him about it. We understood there was a problem with gangs in the area and we also wanted to discuss that." Mrs. Ford called her son and told him to get dressed. "[We] explained to [Mrs. Ford] that we wanted to talk to him at the Area and after we were through talking to him we'd return him home." They gave Mrs. Ford a business card with the station's address and telephone number.

Dignan unlocked the back car door, and defendant entered. No one touched him. While Dignan did lock defendant's door when he closed it, the locks on the car were standard, with no automatic buttons or master control. Going into the station, defendant followed several steps behind the officers.

At 11 a.m., in an interview room, the officers "told him we were investigating the murder of [Corley] and that his name had been brought up as having an incident the previous Friday night with [Corley], and we wanted to know what was to that incident." Defendant replied that he had had nothing to do with the incident involving Corley and Flemming. Defendant told him that on the previous night he had been driving the gray Ford hatchback. He first went to a party, and then drove around with Thomas Leatherwood, Avery and Lewis. He did not know Corley.

The interview room door was open. Defendant never asked to leave, was not told to remain there, and was not handcuffed. He was not told that he was free to leave. "We told him that we wanted some time to talk to his friends, Leatherwood, Avery and Lewis, and that we were going to go over to their homes right away and bring them in, talk to them, and we'd get back to him."

At 1 p.m., Dignan and Costello found Lewis, who agreed to go to the station. Lewis told the police that he and defendant were at a party, and then drove around in the gray hatchback until about 1:30 a.m. The officers told Lewis that defendant gave a different version which mentioned other boys. Lewis agreed that Avery and Leatherwood were with them. The officers told Lewis "that we wanted to talk with Steven Avery, and we told him we'd get back to him." Lewis was left in ...


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