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03/16/89 the People of the State of v. Jerry Shaw

March 16, 1989

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLANT

v.

JERRY SHAW, DEFENDANT-APPELLEE



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, FOURTH DIVISION

536 N.E.2d 849, 180 Ill. App. 3d 1091, 129 Ill. Dec. 799 1989.IL.330

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

APPELLATE Judges:

PRESIDING JUSTICE JIGANTI delivered the opinion of the court. JOHNSON, J., concurs. JUSTICE McMORROW, Dissenting.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE JIGANTI

The defendant, Jerry Shaw, was charged with attempted murder and three counts of aggravated battery arising from an incident in which he allegedly put paint thinner in his infant son's milk bottles. Following his arrest, the defendant made both oral and written statements which formed the substance of a pretrial motion to suppress evidence. The trial court suppressed the statements based on its finding that they were induced by a police officer's promise that the defendant could get help in the form of psychiatric counseling if he were found guilty. The State has appealed, contending that the trial court's suppression of the statements was manifestly erroneous because it failed to consider the totality of the circumstances surrounding the making of the statements.

Chicago police officer Robert Loughran was the sole witness to testify at the hearing on the motion to suppress. Loughran stated that he and his partner interviewed the defendant at 10:30 p.m. on July 3, 1986. The defendant was advised of his Miranda rights and indicated that he understood them. In response to Loughran's inquiry, the defendant stated that he was willing to answer questions at that time.

The defendant was then taken to a different interview room where Loughran had two or three conversations with him between 10:30 p.m. and 11:30 p.m. Each of these conversations lasted between 5 and 10 minutes. The defendant never indicated that he was unwilling to talk to the police, and Loughran testified that he neither threatened the defendant nor made any promises to him during those conversations.

During an interview which occurred at 11:40 p.m., the defendant asked Loughran what would happen to him if he were found guilty. Loughran testified that he responded to the defendant's question by explaining the sentencing alternatives "from the misdemeanor level all the way up to a felony level." He emphasized, however, that the sentencing decision was not in the hands of the police but was instead "basically up to the Judge." Loughran also told the defendant that "there was a possibility of felony probation involved." In response to the defendant's request for further explanation, Loughran stated that "it was an order of Court of counseling. There is an order of Court on felony probation he would not be locked up. He would be on probation and through the courts." Loughran testified that when the defendant asked further questions about counseling, Loughran repeatedly explained that a Judge would make the final decision. At the Conclusion of this interview, the defendant agreed to give a statement. A police report prepared by Loughran contained the following statement: "After approximately one hour of periodically interviewing [the defendant], he asked that if he did do what he is accused of doing, he could get help. When told that he could get -- probably get help through the courts, he related the following . . .."

The defendant then gave a written statement to an assistant State's Attorney. According to Loughran, there was no conversation concerning "help or help through the courts" at that time. Before signing the statement, however, the defendant requested that the following sentence be added: "Jerry Shaw stated he is sorry this happened and that he wants help for himself and the police told him he can get help." The assistant State's Attorney did not question the defendant about the nature of the help referred to in the added sentence.

Loughran then testified that the defendant was offered coffee and allowed to use the bathroom, that he did not request to use the telephone or to contact an attorney and that he did not appear to be under the influence of drugs or alcohol.

At the Conclusion of the hearing the trial court granted the defendant's motion to suppress, stating its reasons as follows:

"The test of the admissibility of the confession, the confession is made freely and voluntarily without compulsion or inducement of any sort. The Court finds that in this case the defendant stood mute until the youth officer made a promise to the defendant to get help, the promise which is articulated clearly in the statement.

The police told him he can get help, that coupled with the youth officer's explanation of misdemeanor sentencing, probation by the Court, the defendant spoke only after the promise was made. The police officer's report which clearly indicates a question by the defendant as to whether or not he could get help, the statement by the officer concerning the help that he would probably get followed by the ...


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