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07/10/89 the People of the State of v. Lucius Clark

July 10, 1989

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE

v.

LUCIUS CLARK, DEFENDANT-APPELLANT



Before escorting defendant into the paddy wagon, Malinowski conducted a protective search and found a loaded .32 caliber handgun in defendant's front coat pocket. Malinowski showed the gun to Whitmore and stated, "Look at this." Defendant then retorted, "I need that for the gangbangers." Defendant was thereafter arrested for unlawful use of weapons and advised of his Miranda rights.

APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, FIRST DIVISION

542 N.E.2d 138, 186 Ill. App. 3d 109, 134 Ill. Dec. 138 1989.IL.1083

Appeal from the Circuit Court of Cook County; the Hon. Gino L. DiVito, Judge, presiding.

APPELLATE Judges:

JUSTICE BUCKLEY delivered the opinion of the court. MANNING, P.J., and CAMPBELL, J., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE BUCKLEY

Following a jury trial, Lucius Clark, (defendant) was found guilty of unlawful use of a weapon by a felon (Ill. Rev. Stat. 1985, ch. 38, par. 24-1.1) and sentenced to five years in the Illinois Department of Corrections. Defendant appeals his conviction, contending that the trial court committed reversible error in denying his motions to suppress his statement and to exclude commentary on the nature of a prior conviction and that he was denied a fair trial by improper prosecutorial comments during closing argument. For the following reasons, we reverse defendant's conviction and remand for a new trial.

The State adduced the following evidence at trial. On December 7, 1985, Chicago police officers Robert Malinowski and Roy Whitmore, on patrol in a paddy wagon, noticed a commotion in the vicinity of Jackson and Halsted Streets in Chicago. The officers observed defendant walking in the middle of Halsted Street, and they drove up to him. After defendant responded with obscenities to the officers' requests that he leave the street, the officers exited the paddy wagon and approached him. Defendant struggled with the officers. Subsequently, the officers handcuffed defendant and arrested him for disorderly conduct. At this time, the officers smelled an odor of alcohol on defendant's breath.

Chicago police officer James Vantilburg, supervisor of the latent print development unit of the crime lab, testified that no fingerprints were recovered from the gun found on defendant, but stated that the lack of prints was not unusual, as the recovery rate on all types of evidence is approximately 20%.

At the close of the State's case in chief, a certified copy of defendant's prior armed robbery conviction, stipulated to by counsel, was admitted into evidence. The State read the stipulation to the jury, which included that defendant had "entered a plea of guilty to armed robbery on April 24, 1978."

Defendant did not testify at trial. Janet Horn, defendant's live-in girl friend, testified on his behalf. Horn stated that she stored a handgun, which she had purchased on July 16, 1981, under her mattress in her home in Palatine, Illinois. A week before the day in question, she moved the gun from that location so that she could use the top mattress as a bed for her nieces and placed the gun into a pocket of a long, heavy wool overcoat. She never told defendant that she had placed the gun in the coat pocket.

In the early morning hours of December 7, 1985, defendant returned home drunk. After Horn later sent him to purchase cigarettes, defendant returned with cigarettes and a pint of either vodka or gin. Horn observed defendant drink some of the vodka or gin.

Defendant then informed Horn of his intent to go to Chicago. Horn called a cab for this purpose and informed the cab company of defendant's intended destination. Horn did not observe defendant when he left because she was in her son's bedroom at the time. Defendant left wearing the overcoat containing the gun.

On appeal, defendant first contends that the trial court erred in denying his motion to suppress his statement made after his arrest for disorderly conduct but before Miranda warnings were issued. He argues that his statement should have been suppressed because it was procured by police during a "custodial interrogation." Miranda v. Arizona (1966), 384 U.S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602, requires the suppression of statements given in response to "custodial interrogation" prior to the issuance of Miranda warnings, but this exclusionary rule does not apply to volunteered statements which are made in the absence of questioning initiated by law ...


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