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February 18, 1994


Appeal from the Circuit Court of Cook County. The Honorable Themis Karnezis, Judge Presiding.

Released for Publication April 19, 1994. Petition for Leave to Appeal Denied June 2, 1994.

Giannis, Egan, McNAMARA

The opinion of the court was delivered by: Giannis

JUSTICE GIANNIS delivered the opinion of the court:

Following a jury trial, defendant, Verrell Smith, was found guiltyof one count of first degree murder and of four counts of attempted murder. Defendant was sentenced to concurrent terms of 40 years for the murder conviction and of 30 years for each of the attempted murder convictions. Defendant challenges his murder conviction and sentence, contending that (1) he was arrested without probable cause, (2) the statement he gave to the police was involuntary, (3) a mistrial should have been declared where the prosecutor discriminated against defendant in the use of peremptory challenges to venire members, (4) he was not proven guilty of first degree murder beyond a reasonable doubt, and (5) the 40-year sentence imposed on the murder conviction was excessive considering his age and potential for rehabilitation. Defendant also asserts that the mittimus should be corrected to reflect that he was convicted of four, rather than six, counts of attempted murder.

The record reflects that defendant was 15 years old when he was charged with two counts of first degree murder and with six counts of attempted first degree murder in connection with a shooting which occurred in the Altgeld Gardens housing project. Although defendant was charged along with four codefendants, Alan Robinson, Raymond Lewis, Marcus Crockett, and Marcus Bruce, his motion for severance was granted, and he was tried separately before a jury.

Prior to trial, defendant filed a motion to quash his arrest, asserting that the police lacked probable cause to arrest him. Defendant also filed a motion to suppress evidence, contending that the statement he gave to the police was not knowingly or voluntarily made. The trial court conducted separate hearings on defendant's pretrial motions. At these hearings, codefendants Crockett and Robinson presented similar motions.

At the hearing on his motion to quash arrest, defendant testified that he was asleep in his home at approximately 4 a.m. on December 6, 1987, when some policemen came into his bedroom and awakened him. Defendant testified that one of the officers put a gun to his head, stating that defendant's brains would be blown out if he moved. After defendant stood up, the officers flipped the beds over and searched the bedroom. They then gave defendant some clothes to put on, handcuffed him, and took him downstairs. Defendant testified that his brother was also brought downstairs in handcuffs. The officers took defendant outside to a squad car which was parked in front of his house. Defendant stated that as they left the house, he noticed that the front door had a dent in it as if it had been kicked. Once outside, defendant recognized three people who were sitting in another squad car. According to defendant, these people were William Cage, Brian Jones, and Jimmy Jenkins, and defendant knew thesethree men lived in the Altgeld Gardens housing project. Thereafter, defendant and his brother were taken to the police station. According to defendant, he was not shown an arrest warrant or a search warrant.

Defendant's mother, Minnie Thomas, testified that defendant was asleep when the police came to their home at approximately 4 a.m. on December 6, 1987. Upon hearing someone beating on the door, Ms. Thomas looked through the window and saw some white men. After the men identified themselves as police officers, Ms. Thomas opened the door to the officers. According to Ms. Thomas, the officers entered the house with their guns drawn and asked for defendant. When Ms. Thomas told them that defendant was in bed asleep, the officers went upstairs, and Ms. Thomas followed them. Ms. Thomas testified that upon entering the bedroom, the officers put guns to the defendant's head and told him to get up and to get dressed. They then searched under the mattress, and Ms. Thomas told them to stop and asked whether they had a warrant. According to Ms. Thomas, the officers then went into another bedroom and took her other son, 21-year-old Vernon Smith, out of bed. The officers handcuffed both of Ms. Thomas' sons and took them out of the house to a police car. Ms. Thomas testified that the officers told her that her sons were being taken to the station for questioning about a shooting, but she was not advised as to the rights of her sons. Despite her request, Ms. Thomas was told by the officers that she could not accompany her son to the police station. Ms. Thomas then got ready and drove to the police station where she stayed until the following morning.

Chicago police detective James Butler testified that he had been assigned to investigate a shooting at the Altgeld Gardens housing project, and after speaking with the beat officers, he learned that the victim, Lamont Reed, had identified the shooter by the name "Spank." Butler also learned that Marcus Bruce was present and had witnessed the shooting. Butler then went to Bruce's home to speak with him and later went to survey the scene of the shooting along with Bruce and his father. At the scene, Butler found six spent .38-caliber casings on the sidewalk. Bruce and his father returned home while Detective Butler continued his investigation.

Thereafter, Butler canvassed the area, including the home of the victim. There, Butler spoke with the victim's brother who said that the victim had been with three friends earlier that evening. The victim's brother then took Butler to the home of Brian Jones where Jimmy Jenkins and William Cage were also present. Jones, Jenkins, and Cage told the detective that they had been with the victim at a party on Block 17 of the housing project. Upon speaking with Jones, Jenkins, and Cage, Butler learned that as these three left the party with the victim, they were shot at by defendant and by codefendants Bruce, Crockett, and Lewis, also known as "Spank." The weapons used by the defendants were described to Butler. According to this description, defendant had used a handgun to shoot at the victim and his companions. The other weapons described included a rifle fired by Lewis ("Spank"), a 12-gauge shotgun fired by Robinson, a handgun fired by Bruce, and a 12-gauge shotgun fired by Crockett.

Detective Butler testified that he asked for the addresses of the people who were involved in the shooting and was first directed to the home of Raymond Lewis. Cage, Jenkins, and Jones agreed to accompany the officers to the home of Raymond Lewis. There, the officers placed Lewis under arrest and recovered a rifle and bullets. Thereafter, Cage, Jones, and Jenkins directed the Butler and his partner to the home of Marcus Crockett. There, the officers placed Crockett under arrest and recovered shotgun shells and .22-caliber bullets. The officers were then directed to the home of Alan Robinson where Robinson was taken into custody. The officers also returned to the home of Marcus Bruce and placed him under arrest. Finally, the officers were directed to the home of defendant.

According to Butler, the officers knocked on the door, identified themselves, and were admitted by defendant's mother. Butler advised defendant's mother that they were there to make an arrest for the shooting that had taken place earlier that night. After defendant's mother said that defendant was in his bedroom, she directed them to that room. The officers placed defendant under arrest and handcuffed him. While defendant got dressed, the officers looked for a gun in his room. Butler advised defendant of his constitutional rights, and defendant stated that he understood those rights. Butler also advised defendant that he could be charged as an adult. According to Butler, defendant's mother was present when defendant placed under arrest. Butler testified that when he was brought outside, defendant was identified by at least two of the three witnesses as the person who shot at them and at the victim with a handgun. Butler stated that Cage, Jenkins, and Jones said they knew defendant because he was a member of a rival gang. Thereafter, defendant was taken to the police station, and Butler gave defendant's mother a business card with the address and phone number of the station on it. Butler denied that defendant's mother asked if she could accompany her son to the station.

Detective Butler stated that he did not recall any officer drawing his weapon in defendant's home. Butler specifically denied that he or any other officer had kicked on any doors to gain entry intodefendant's home. Butler also denied that he or any other officer had pressed a gun to defendant's head or said that defendant's brains would be blown out if he moved.

The trial court determined that defendant had been sufficiently identified as being armed with a weapon near the location of the shooting and ruled that the police had probable cause to arrest defendant. Accordingly, the court denied defendant's motion to quash arrest.

Defendant also presented a motion to suppress evidence, asserting that the statement he gave the police while at the police station was not knowingly or voluntarily made.

At the hearing on this motion, Aidan O'Connor testified that she was the assistant State's Attorney assigned to the case. O'Connor questioned defendant at 4:30 p.m. in the presence of Detective Butler and youth officer Hartmann. After that 30-minute interview, she spoke to defendant alone. Defendant made no complaints to her regarding his treatment. At 5:20 p.m., O'Connor took a court-reported statement from defendant. At 10 p.m., she had a third conversation with defendant, during which the statement he had given was reviewed by them together.

O'Connor could not remember whether she asked defendant if he had been allowed to sleep. O'Connor did not ask if defendant's mother was at the station, nor did she attempt to ask if his mother wanted to be present for the interview. She did not know if the detectives promised defendant probation or told him that he could go home with his mother if he gave a statement to her.

Detective James Cloonan testified he arrested defendant at about 4 a.m. He said that he left a card with defendant's mother at the time of the arrest. He explained the charges to her and said that she could go to the station. Cloonan testified that none of the defendant's parents appeared at the station. Cloonan first interviewed defendant at about 5:30 a.m. He read defendant his constitutional rights and told him he could be tried as an adult. No youth officer was present during the interview because none was available until 8 a.m. Cloonan stated that defendant slept at various times after his arrest.

James Walsh testified that he was the youth officer who sat in on the statement given by defendant to the assistant State's Attorney. Walsh testified that there were 30 youth officers who worked that area. He stated that the youth officers worked around the clock, being assigned to each and every watch. Walsh testified that it was policy for a youth officer to be present whenever a juvenile was interrogated.

Walsh stated he was told by Hartmann and Cloonan that all thedefendants' parents had been contacted but that none came into the station. He said he never went to see for himself if any of the parents were there. Nor did Walsh explain to the defendants that he was there on their behalf. Walsh said he did not attempt to contact defendant's parents and that he had no conversation at all with defendant.

Michael Hartmann testified that he was a youth officer who worked the shift from 8 a.m. to 4 p.m. He testified that there were youth officers on duty during the shift before his and that a youth officer was to be present at all interviews with a juvenile. The detectives on the case had informed Hartmann that they had contacted all of the parents involved but that none came to the station. Hartmann did not attempt to contact defendant's parents.

Detective Butler testified that prior to the taking of defendant's statement, he had no conversation with defendant. Butler denied ever telling defendant he could go home with his mother if he talked, and he denied speaking with defendant's mother at the police station. Butler stated that defendant was not offered anything to eat after 8 a.m.

Minnie Thomas testified that, after seeing two of her sons arrested at home at about 4 a.m., she went with her sister and friend to the police station. She went to the desk and told the sergeant that her sons were there. She asked to go upstairs to see them. The sergeant called upstairs but she was not allowed to see her sons.

Ms. Thomas testified that she stayed at the station until about 3:30 or 4 p.m. At that time, she went home for about 20 minutes before returning to the station. She then left the station again at about 7:30 p.m., when she was told defendant was being taken to the Audy Home. Vernon was released the next morning. During the time she was there, Ms. Thomas asked to see her son about four times. She asked the desk sergeant a couple of times and asked Detective Butler twice to see her son. Ms. Thomas said there were at least 30 people at the station on behalf of the five juveniles arrested, including defendant's father.

Vashan Kyles testified that she was at the home of her friend, Minnie Thomas, on December 6, 1987, when at 4 a.m., police came into the home. Those policemen opened the back door, allowing others in and then went upstairs. They came back down with defendant and his brother Vernon. Kyles testified that Ms. Thomas asked where they were being taken and why. Ms. Thomas also asked if she could go with them but was told that she could not. Ms. Kyles accompanied Ms. Thomas to the local station where she stayed until 9 or 10 a.m. When they arrived at the station 12 or 13 people (relatives of thecodefendants) were already there. She stated that during the time she was there, Ms. Thomas went to the desk 4 or 5 times to request to see her son and was refused each time.

Latressa Thomas, defendant's aunt, testified that she was at her sister's home when the police came into the house, went upstairs, and pulled defendant out of bed. She saw the police then go get defendant's brother Vernon. After Minnie Thomas was told she could not accompany her sons to the station, they put their coats on and went to the station. Defendant's aunt testified further that she stayed at the station until 8 or 9 a.m. She stated that her sister asked at the desk four or five times to see her son. Minnie Thomas also asked Detective Butler, who was called down by the officer at the desk, if she could see her son. All requests were refused. Ms. Thomas said that 15 to 20 people were there at the station on behalf of the codefendants.

Defendant testified he was 15 years old when he was arrested for first degree murder on December 6, 1987. He was asleep in his room at 4 a.m. when the police put a gun to his head and arrested him. Defendant said that when he arrived at the police station he was placed in a room on a bench and handcuffed to the wall. Detective Butler left and another detective questioned him. He was told his rights, but he understood them to mean if he "disrespected" the detective, the Judge would be told, and it would be used against him. Defendant asked if his mother was at the station, and, if so, could she come up. The detective told him that she was not there. Defendant was questioned by the detective for 20 or 30 minutes. About one and one-half hours later, Butler came in and asked defendant where was the gun. Butler told defendant that his friends said he had shot someone.

Defendant testified that until that time, he had said nothing. Defendant told Butler that he did not have a gun and that he did not shoot anyone. According to defendant, Butler grabbed him by his shirt, said "you got the gun, your friends telling me you got the gun," and shoved defendant back against the wall. Defendant said he did not have a gun. Butler then told defendant he would give him a few minutes to think and that he would be back. Defendant testified that more than an hour passed before a short detective came in and asked defendant to tell his story again. Defendant did so, and the detective indicated that his story had changed. Defendant denied this.

About 30 to 60 minutes after the short detective left, Detective Butler came back into the room and detached defendant's handcuffs from the wall. He was taken to another room and told a lady was coming to ask him questions. Butler told defendant that everybody was saying he had a gun and shot the victim. Butler said defendant'smother was downstairs waiting for him and, if he just said he accidentally shot the guy, he could go home with her. Butler told defendant that he had a friend who got five years probation for and accidental shooting and that he would try to get defendant the same in juvenile court. Defendant was warned not to mention he was told what to say or that any promises were made because he would not get the probation.

Defendant testified that no one told him that the shooting victim had died until the assistant State's Attorney did so while taking his statement. Defendant stated that since the woman was a lawyer working with the police, he believed she would help him get probation if he did as Butler told him. In accordance with Butler's instruction, defendant said that he shot in the air and that he may have accidentally hit someone. Defendant testified that he gave this statement because he thought he would then be able to go home.

When asked about the youth officer who was present during the taking of his statement, defendant said he assumed he was just a policeman. The youth officer had not said anything to him. Defendant testified that he did not know what the word "waive" meant and that he was failing his high school English course. He testified that he did not understand his constitutional rights or that what he said would be used against him. Defendant testified that he would not have given the statement if he knew it would be used against him. Defendant testified further that he did not get any sleep from the time he got to the station until after he had given a signed statement. From the time of his arrest to the time he gave the court-reported statement at 5:30 p.m., defendant was fed once at 8 a.m. He was ...

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