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02/23/94 PEOPLE STATE ILLINOIS v. KEVIN BAILEY

February 23, 1994

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,
v.
KEVIN BAILEY, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Cook County. Honorable William Cousins, Jr., Judge Presiding.

Released for Publication April 19, 1994.

Greiman, Tully, Cerda

The opinion of the court was delivered by: Greiman

JUSTICE GREIMAN delivered the opinion of the court:

Following a jury trial defendant Kevin Bailey was convicted of first degree murder (Ill. Rev. Stat. 1985, ch. 38, pars. 9-1(a)(1, (2), (3)), armed robbery (Ill. Rev. Stat. 1985, ch. 38, par. 18-2(a)) and two counts of burglary (Ill. Rev. Stat. 1985, ch. 38, par. 19-1(a)) and sentenced to an extended term of 80 years' imprisonment for first degree murder and concurrent terms of 30 years for armed robbery and seven years for burglary. Defendant now urges this court to reverse his conviction on grounds that: (1) the trial court erred in denying his motion to quash his arrest and suppress his statements and improperly excluded testimony offered in support of the motion; and (2) the State improperly shifted the burden of proof. Alternatively, defendant asks this court to reduce his sentence for an alleged abuse of discretion at the sentencing hearing.

We affirm the trial court.

Defendant was indicted with codefendant Corey Batchelor on four counts of first degree murder, two counts of burglary and one count of armed robbery for events related to the fatal stabbing of Lula Mae Woods (victim), a 69-year-old woman found dead in the garage behind her home on June 1, 1989.

Prior to trial, defendant filed a motion to quash his arrest and suppress his statements alleging that he was arrested without a valid arrest or search warrant, or without probable cause. At the hearing on the motion, defendant testified that on June 7, 1989 at approximately 6:30 a.m. he was at home when he received a phone call from the police asking if he would accompany them to the station to answer some questions; defendant agreed. When a plain clothes police officer arrived about 20 minutes later, defendant willingly left his home for the station; defendant was neither handcuffed nor told that he was under arrest or that he would be "locked up" if he did not accompany the officer.

At the station, defendant was placed in a room with a window through which he saw codefendant Batchelor. The police told defendant that Batchelor admitted being with defendant when he found $50 in a puddle on the day of the murder. The police asked defendant if Batchelor was telling the truth or if he knew anything about the murder, and defendant answered the questions willingly and then agreed to take a polygraph examination.

After waiving his Miranda rights and completing the polygraph, defendant stated that he was with Batchelor when Batchelor murdered the victim and then described this occurrence. Shortly thereafter, defendant changed his story to confess that he actually stabbed the victim, detailing how Batchelor had given him the knife and that he agreed to rob but did not intend to kill the victim. Defendant was then placed under arrest and handcuffed, at which point he no longer felt free to leave the station.

In response to defendant's motion, the State presented Violent Crimes Detectives Lawrence Nitsche and Daniel McWeeny who essentially testified that defendant was not placed under arrest until after he admitted stabbing the victim.

The court denied defendant's motion and determined that: (1) defendant was not in custody at the time he was taken from his home to the police station; (2) probable cause for defendant's arrest issued from defendant's admissions after receiving Miranda warnings; and (3) defendant's arrest occurred after such admissions.

The case proceeded to trial, at which time the State presented the testimony which follows. On June 1, 1989, the victim was 69 years old and residing with her husband of 23 years when she was found on the floor of her garage in a pool of blood. After the police arrived on the scene an officer found two sets of keys and a purse strap near the body, and a "Domino's Pizza" baseball cap underneath the body which did not belong to either of the Woods. From the alley a block away from the victim's garage, the police later recovered the victim's purse, bank passbook and deposit slips recording that day's deposit total of $354, and a knife later identified as the murder weapon.

After the police spoke with Batchelor regarding the victim's murder, they attempted to locate defendant who was not yet a suspect. The State then offered testimony consistent with the testimony presented at the hearing on defendant's motion to quash his arrest and suppress his statements except to add that defendant told Detective McWeeny after arriving at the police station that he was with Batchelor on ...


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