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12/22/94 PEOPLE STATE ILLINOIS v. GLENN H. WILSON

December 22, 1994

THE PEOPLE OF THE STATE OF ILLINOIS, APPELLEE,
v.
GLENN H. WILSON, APPELLANT.



The Honorable Justice Heiple delivered the opinion of the court, Justice Harrison, dissenting

The opinion of the court was delivered by: Heiple

The Honorable Justice HEIPLE delivered the opinion of the court:

Following a jury trial, defendant, Glenn H. Wilson, was convicted of three counts of first degree murder and one count of armed robbery. At the first stage of the death penalty hearing, the same jury found defendant eligible for the death penalty on the basis of multiple murder and murder in the course of a felony. Defendant waived his right to a jury at the second stage of the death penalty hearing. After presentation of evidence by both sides, the trial judge found that there were no sufficient mitigating factors to preclude imposition of the death sentence. Defendant was sentenced to death and a term of 30 years for the armed robbery. Defendant's death sentence was stayed (134 Ill. 2d R. 609(a)), pending direct appeal to this court (Ill. Const. 1970, art. VI, ยง 4(b); 134 Ill. 2d R. 603). We affirm defendant's convictions and sentences.

On appeal to this court, defendant argues that: (1) the statements he made to police should have been suppressed at trial, since Miranda warnings were not given and the police interrogation was coercive; (2) defense counsel was ineffective for failing to claim that the statements defendant made were involuntary and the result of coercion; (3) defense counsel was ineffective for failing to seek suppression of statements that defendant gave to a county mental health therapist; (4) the statements he made to a county mental health therapist were erroneously admitted at trial; (5) the State's Attorney incorrectly issued subpoenas without the direction of the grand jury or the supervision of the court; (6) he was denied a fair trial by the use of evidence of his prior armed robbery conviction in spite of a motion in limine; (7) he was not proven eligible for the death penalty beyond a reasonable doubt; (8) the sentence of death was excessive; (9) the use of aggravation evidence of his gang membership violated his constitutional rights; (10) the Illinois death penalty statute is unconstitutional; and (11) the sentencing hearing was unconstitutional since the State was allowed to open and close the sentencing hearing.

FACTS

On October 27, 1988, three persons were shot and killed during an armed robbery at S&S Liquor Store in Bloomington, Illinois. Defendant was arrested on an unrelated weapons charge on June 1, 1989. Between the time of defendant's arrest on June 1, 1989, and June 9, 1989, defendant made several statements to the police regarding the S&S murders. On March 28, 1991, defendant was charged with six counts of murder and one count of armed robbery. Before trial, defense counsel filed several motions to suppress the statements.

At the hearing on defendant's motions to suppress, the following was elicited. On June 1, 1989, shortly after being taken into custody and placed in a jail cell on the unrelated weapons charge, defendant attempted suicide. Defendant was transported to St. Joseph's Medical Center. While at the Center, Officer Jeff Sanders noticed that defendant appeared to be under a great deal of stress. Sanders began speaking with defendant in an attempt to calm him. Defendant began mumbling to Sanders and said that "he never meant to hurt anybody or for anyone to get hurt." Sanders then suggested that defendant might consider working with the police. Defendant initially responded that he could not do that, because someone may kill him if he spoke to the police. Defendant then began talking to Sanders about robberies and homicides which had occurred in the area. Sanders asked if defendant knew anything about the S&S murders. Defendant replied that "everyone knew who did it" and that "they were very bad people." Defendant eventually agreed to work with the police. After defendant was examined at the Center, he was returned to the police department. Sanders then advised Detective Dan Katz that defendant possibly had information on the S&S murders.

Shortly after defendant was returned to the police department, Detective Katz began talking to defendant. Defendant provided Katz with information about gangs in the Bloomington area. After receiving this information, Katz contacted Agent Bernardini of the Illinois State Police, who was more of an authority on gangs than Katz was. Bernardini arrived at the police station about 8 p.m. and joined the conversation between Katz and defendant. Defendant expressed a wish to gain release from jail that evening if he provided gang information. Katz informed defendant that Katz did not have the authority to release him from jail, and the conversation continued. Bernardini then told defendant that he was still puzzled about why three persons had been shot during the S&S robbery. Defendant responded that "that was a spur of the moment thing" and "not supposed to happen." Defendant then resumed talking about gang activities. Defendant again asked to be released. After speaking to his sergeant, Katz told defendant that he could not be released that evening. Defendant told Katz and Bernardini that if he was released from custody, he would tell them in a day or two who had committed the S&S robbery and murders. When Katz told defendant that he could not be released, defendant said that he actually knew who committed the S&S murders.

Without any prompting from the police, defendant then stated that three individuals, Charles Smith, Gary Jones and Al Harris, had committed the armed robbery and murders and that he had witnessed it. Defendant recounted that he saw these three men sitting in Smith's car at People's Drug in Bloomington on the night of October 27. After defendant approached the car, he noticed numerous guns in the vehicle. Defendant observed two of the men looking at a map of Bloomington to determine the location of S&S, and defendant heard the men discussing an armed robbery. When the men left the parking lot, defendant followed them around Bloomington. When the men did not drive to S&S, defendant returned to his home. Once every hour, defendant left his home, drove around the city of Bloomington to find the men, and followed them. Each time the men failed to near S&S, defendant would return home. After several trips and around 10 p.m., defendant followed the men to S&S and watched them from a nearby gas station. Defendant saw the men enter S&S while carrying guns. Defendant said he heard a shot. After the men exited S&S, defendant drove back to his home.

After Katz and Bernardini expressed doubts about defendant's story, defendant said that if he told the truth, he would just be getting himself "in deeper." Defendant then stated that he knew the robbery was to occur at 10 o'clock and that he was to meet the men at S&S. Defendant said that he did arrive at S&S around 10 p.m. and was hoping to get money out of the men after the armed robbery occurred. During the course of these conversations, defendant was given the opportunity to use the rest room and to obtain something to drink.

Upon Katz and Bernardini's request, defendant agreed to voluntarily accompany the officers to the crime scene. Defendant directed everyone to a gas station across the street from S&S and said that he witnessed the crime from that location. As defendant explained what he saw on the night of October 27, Katz told defendant that it seemed improbable that defendant could have seen the crime from such a distance. Defendant then said he would show the police where he was really standing, and defendant moved to a sidewalk near a street that separated the gas station from S&S. Katz once again told defendant that it was improbable that he could see the crime from that distance. Defendant then moved next to the brick wail of S&S and said that he saw the robbery in progress from that location. Katz then said that it was impossible to see through the brick wall into S&S. Defendant then moved to a position outside the front doors of S&S. Defendant said that when he looked in the store, he saw Robert Webb, a store employee, inside. He also noticed an individual lying on a rubber mat behind the cash register. Defendant was advised that it was impossible to see this from his claimed location. Defendant was also told that he needed to tell the truth about that night and that the police had a footwear impression from inside the store. Defendant said that he may have placed one foot into the store. Defendant stated that he was going to receive $500 for being a lookout for the three men. Defendant was then taken back to the police department.

Defendant was given breakfast, and a typewritten statement was taken from defendant between 6 a.m. and 8:10 a.m. Katz did not give defendant Miranda warnings prior to taking the statement, because defendant was still considered a witness. When the McLean County State's Attorney learned that Miranda warnings had not been given, Katz was advised to go back, read Miranda warnings to defendant, and take a second statement. At approximately 10:10 a.m. on June 2, defendant was given Miranda warnings; defendant waived his rights and stated that he was willing to give another voluntary statement. The second statement was similar to the first. Both statements set forth defendant's involvement as a lookout for the three men. Prior to 10:10 a.m. on June 2, defendant had never been given Miranda warnings.

On June 4, Richard Humber, a consultant with the Bloomington police department, met with defendant. Humber read defendant his rights, and then defendant began talking about the evening of October 27. Defendant stated that he met the three men in the parking lot of People's Drug and that Harris told defendant that he would pay defendant $500 if defendant acted as a lookout during the robbery. He stated that he stood with Jones by the front door of S&S while the other two men went inside. After defendant saw Harris fire a gun, both Harris and Smith ran out of the store and drove away with Jones. Defendant then returned to his home without receiving any money for acting as the lookout.

On June 5, Katz once again met with defendant in an attempt to obtain more information about the S&S murders. Katz did not read defendant Miranda warnings, because he still viewed defendant as a witness and not a suspect. Defendant spoke of the night of the crime and gave descriptions of the three men.

Katz also spoke with defendant on the evening of June 9. Defendant was not read Miranda warnings, but defendant was told that he did not have to talk to anyone and that anything he said could be used against him unless the police were going to offer him something in return for his testimony. The public defender was present at this meeting. Defendant stated that his prior statements were untrue and that the three men had come to his residence to buy guns before the murders.

The trial court suppressed the first written statement that defendant gave the police on June 2, since defendant had not been given Miranda warnings. Defendant's June 5 statement was also suppressed. Motions to suppress were denied as to defendant's oral statements at the hospital and the police station on June 1, the oral statements at the crime scene on June 2, the second written statement on June 2, and the oral statements on June 4 and June 9.

At defendant's trial, Tracy Gault, an employee of S&S on October 27, testified that two black men came into the store about 10 p.m. that evening. After a few minutes, Gault saw the two men come down the center aisle of the store moving toward her, with two customers, Scott Burton and Whitney Cole, in front of them. Robert Webb, another employee of S&S, approached the two men. Gault saw Webb say something to the men and then noticed that the taller of the two men had a gun. The men then ordered the two customers and Webb down onto the floor. Gault was ordered to open the cash register, and the taller man fired a shot. After Gault opened the cash register, the shorter man reached into the drawer and took out money. Gault then got down onto the floor, but was ordered up to open the safe. Gault proceeded to take the money out of the safe and hand it to the shorter man. Gault asked the shorter man if he wanted the change from the safe. He answered no and then pistol-whipped Gault in the face. Gault immediately crouched against the wall near the safe and thereafter heard three gunshots. The store became quiet, and after about 30 seconds, Gault crawled out from near the safe. Gault noticed that the woman customer had blood coming from her mouth. Gault dialed 911. After the police arrived, Gault described both men to the police. A police artist developed sketches of the men. The police artist testified that the sketch of the taller man appeared to depict the defendant. Gault later identified Alvin Alexander, defendant's brother, as the shorter man.

When the police arrived at the scene, they found Burton already dead and the other two still breathing. Both Webb and Cole died later. The cause of death for all three individuals was a gunshot wound to the head.

The jury also heard Julie Rice of the McLean County Human Services testify that on the afternoon of June 5, 1989, she spoke with defendant to assess whether he remained suicidal. Rice could not recall whether defendant requested that she visit him or if the jail staff requested that she visit defendant. Rice testified that defendant told her that four persons could tell that he committed the S&S armed robbery/murders and that he gave the police aliases for these four persons. Defendant told Rice that if he said who actually committed the crimes, he himself would be buried. Rice suggested that defendant write a journal about his thoughts as a way to relieve stress. Over time, defendant shared parts of that journal with Rice, by sticking it through the bars of his jail cell as Rice walked through the jail. The first page of the journal, dated July 4, 1989, was admitted as evidence.

Other evidence adduced at trial included Katz's testifying that the location of the bodies inside the store was not released to the press, but defendant knew of the location of one of the bodies when he spoke to police at the crime scene. Two of defendant's cell mates testified that defendant told them that he robbed a liquor store and shot someone. John Daniels testified that in August of 1990, defendant told him that he and some other men went into a liquor store in Bloomington to commit a robbery and that people were shot and another lady was pistol-whipped. Robert Faraci testified that in January 1991, defendant told him that he robbed a liquor store and shot someone in Bloomington. Defendant's son, Jarmaine Wilson, also testified that on the night of the murder, defendant used a gun to threaten his mother to drive a car. Jarmaine's mother acquiesced and got into the car; defendant sat on the front passenger side and Jarmaine rode hunched down in the back. Alvin Alexander rode in a separate car which accompanied the car in which Jarmaine was riding. When the car stopped, defendant got out while Jarmaine remained hunched down in the backseat. Several minutes later defendant got back into the car and ordered Jarmaine's mother to hurry.

The State also offered the testimony of three other witnesses who had gone to S&S on the night of the murders to buy liquor. Two of these witnesses testified that they saw two black men walking toward S&S on October 27. Each witness stated that the police drawings based on Gault's descriptions were good likenesses of the men they saw. The third witness made an in-court identification of defendant as the taller man she saw approaching S&S on the night of October 27. The unsuppressed statements defendant made to the police were also admitted as evidence.

Defendant did not testify on his own behalf at trial. The defense presented one witness who attempted to discredit Jarmaine Wilson's testimony. The jury returned guilty verdicts for three counts of murder and one count of armed robbery. The same jury found defendant eligible for the death penalty on the basis of multiple murder and murder in the course of a felony. Defendant then waived his right to have a jury for the second phase of the death penalty hearing. After hearing evidence in aggravation and mitigation, the trial judge found that almost no mitigation evidence existed. Defendant was sentenced to death for the murders and sentenced to 30 years' imprisonment for the armed robbery.

ADMISSIBILITY OF DEFENDANT'S STATEMENTS

Defendant first alleges that the trial court committed reversible error when it failed to suppress the incriminating statements he made to the police. Defendant claims that his June 1 statements to Sanders at the hospital, his June 1 statements upon his return to the police station, his June 2 statements at the crime scene, his second written statement, and his June 4 statement to Humber should have been suppressed as violations of his fifth amendment rights. Defendant specifically contends that these statements were involuntary and the result of a coercive interrogation.

A trial court's decision to deny a motion to suppress will not be overturned unless the decision is manifestly erroneous. ( People v. Brown (1990), 136 Ill. 2d 116, 125, 143 Ill. Dec. 281, 554 N.E.2d 216.) It appears from the suppression rulings that the trial court determined that Miranda warnings were necessary beginning at the time defendant was returned to the police ...


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