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01/21/94 PEOPLE STATE ILLINOIS v. VIRGIL BASS

January 21, 1994

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLANT,
v.
VIRGIL BASS, DEFENDANT-APPELLEE.



Appeal from the Circuit Court of Cook County. Honorable Leo E. Holt, Judge Presiding.

As Corrected February 10, 1994. Released for Publication March 18, 1994. Petition for Leave to Appeal Denied June 2, 1994. Second Correction July 6, 1994.

McNULTY, Gordon, Cousins, Jr.

The opinion of the court was delivered by: Mcnulty

JUSTICE McNULTY delivered the opinion of the court:

After a bench trial, defendant was found guilty of first-degree murder and unlawful use of a weapon by a felon. The trial court granted defendant's motion for a new trial and post-trial motion to suppress evidence on fourth amendment grounds. The State appealed and this court vacated the suppression order and remanded the cause to the trial court for specific findings on the issue of whether defendant was handcuffed to the wall when he was brought to the station. At the remand hearing, the trial court held that it could not determine whether defendant was handcuffed, but reinstated the order of suppression. It is from this order that the State appeals.

Prior to trial, a hearing was held on defendant's motion to suppress his statement on fifth amendment grounds. Chicago police detective Gerald McGovern testified that while investigating a murder, he learned that defendant sustained a gunshot wound to his foot and had been hospitalized. The officer located defendant at his home at 8:30 a.m. on May 2, 1988, and told him that it was necessary for defendant to accompany him to the police station because he was a witness to a homicide and a victim of a shooting. Defendant accepted a ride and was a passenger in the rear seat of the police car. Defendant's foot was bandaged and he was on crutches.

Detective McGovern testified that after their arrival at the police station, defendant was not searched, fingerprinted, photographed or handcuffed. Defendant was taken to a small interview room and questioned by officers until about 9:30 a.m. periodically throughout the day, defendant was left alone in the unguarded room with the door open. Defendant refused several offers of food. Detective McGovern admitted that defendant was never told he was free to leave. Defendant did not complain of physical discomfort, but Detective McGovern believed defendant was in pain. Detective McGovern testified that defendant used the telephone to call his wife who came to the station and gave defendant his medication somewhere between 2:30 and 4 p.m. Defendant was advised of his Miranda rights at 8:30 p.m., when defendant changed his version of the shooting. The door to the interview room was then locked but defendant was not handcuffed. The officer then called for an assistant State's Attorney who prepared a written statement which defendant signed at 2:30 a.m.

Defendant testified that when he was taken to the police station at 8:30 a.m., he was handcuffed to a ring on the wall and left in a locked room for an hour and a half. He stated that he was in pain and drowsy and although he repeatedly told the officers that he was in pain, they did not offer him any medication. According to defendant, he did not see his wife until an hour before the arrival of the assistant State's Attorney. When he saw his wife, she was crying and said she had been arrested. Defendant testified that he was never advised of his Miranda rights. He admitted refusing food and drink. According to defendant, the officers told him that he could not leave the room until he told them "what they wanted to hear." Defendant then gave a statement. Defendant admitted that he was not handcuffed when he met with the assistant State's Attorney and that he did not complain of his treatment to the assistant State's Attorney.

Defendant's wife, Pauline testified that she called the police station hourly during the day, and when an officer brought her to the station at 9 p.m., he pushed her into a room, took her purse, and locked her up. She stated that she saw defendant when she was released at 4 a.m.

Assistant State's Attorney Julie Rosner testified in rebuttal that she interviewed defendant after 1 a.m., read him his Miranda rights and wrote down her questions and defendant's answers. Defendant read the statement and said that he understood. She asked defendant whether the police had treated him well, and he responded affirmatively.

Detective Jack Wilkins, also called as a rebuttal witness, testified that when he and Detective McGovern interviewed defendant at 8:30 p.m., defendant was not handcuffed. He stated that Detective McGovern read defendant his Miranda rights. Defendant was "calm and cooperative" and never complained of pain. He also stated that defendant took medication at 2 p.m. and that defendant's wife was never taken into custody.

The trial court denied defendant's original motion to suppress, noting that this motion raised only fifth amendment, and not fourth amendment concerns.

At the trial which followed, Officer Dennis Zajac testified that he spoke with defendant in the Roseland Hospital emergency room. At that time, defendant informed Officer Zajac that three men shot at him and his friend Phillip Conley. Defendant told Zajac that he did not know what Conley's condition was.

Detective Wilkins was assigned to investigate a homicide at 340 West 109th Place in Chicago and testified that he observed Conley's body at 6:30 a.m on May 2, 1988. He also saw a trail of blood leading across the street. Wilkins further testified that he and Detective McGovern advised defendant of his Miranda rights at 8:30 p.m. that night, told him of the inconsistencies in his version of events and advised him that his physician had expressed the opinion that defendant's gunshot wound was consistent with being self-inflicted. In response, defendant promised to tell them the truth and stated "I'll probably do 20 years." ...


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