Appeal from the Circuit Court of Cook County. Honorable William J. Hibbler, Judge Presiding.
Presiding Justice Greiman delivered the opinion of the court: Tully, J., and Cerda, J., concur.
The opinion of the court was delivered by: Greiman
PRESIDING JUSTICE GREIMAN delivered the opinion of the court:
Following a jury trial, defendant was convicted of first degree murder and sentenced to 55 years' imprisonment.
On appeal defendant raises three issues: (1) whether defendant's confession given at the police station should have been suppressed as the product of an unlawful arrest; (2) whether the trial judge committed plain error by responding to two jurors' notes by advising the jury that he could not answer their questions; and (3) whether the 55-year prison sentence is excessive.
We find that defendant was illegally under arrest while locked in an interview room in a police station overnight and remand the matter to the trial court for an attenuation hearing to determine whether his confession should have been suppressed. We also find that the trial court did not err in responding to questions posed by two jurors and did not abuse its discretion in the imposition of sentence.
On July 5, 1991, about 5:28 p.m., the dead body of Lynette Lang was found severely beaten, strangled, stripped, wrapped in a blanket and discarded in a garbage can in an alley at 2152 West Monroe. The medical examiner could not determine the exact time of the victim's death. About 5:45 p.m. Detective Joseph Walsh, while working the 4:30 p.m. to 1 a.m. shift, was assigned to investigate the homicide.
On July 6, 1991, about 4:30 p.m., Detective Walsh was informed that the victim had been identified by family members as Lynette Lang. Following interviews with family members of the victim and other persons, Walsh determined that defendant was one of the last persons seen with the victim. Unable to locate defendant, Walsh spoke with defendant's family, including defendant's brother Curtis, and instructed them to have defendant contact the police.
On July 8 about 10 p.m., while off duty, Walsh received a telephone call at home from the police station and was told that Curtis Barlow was in the police station and wished to talk to Walsh. Walsh went to the station and spoke with Curtis who told Walsh that his brother Craig, defendant, was waiting outside the station.
About 10:30 or 11 p.m., Walsh and Curtis went outside. Walsh introduced himself to defendant and all three men (Walsh, Curtis and defendant) proceeded to the second floor of the police station. Walsh told Curtis that he was welcome to stay if he wished but that the conversation with defendant would take some time. Curtis then left the station.
After advising defendant of his Miranda rights, Walsh questioned defendant for about one to two hours in an interview room. During the questioning, defendant recounted his activities from July 4 through July 7 or 8. On July 4, defendant attended a family picnic in Chicago and left in the evening hours with his brothers Curtis and Lawrence and Curtis' family. After driving Curtis' family home to Oak Park, the three Barlow brothers (defendant, Curtis and Lawrence) proceeded to acquire and use cocaine and then purchased some beer. While they were drinking the beer, two girls they knew joined them, i.e., the victim known as Goo and Micky. During the next several hours, the entourage purchased more cocaine, visited a smoke house, purchased and drank more beer. Eventually only four people remained in Touhy Park where they were drinking, i.e., defendant, the victim, Micky and Garland Henderson (a/k/a Toto, Micky's boyfriend). As the sun was rising, defendant and the victim went their separate ways, apparently because defendant had run out of money.
Defendant maintained that when he parted company with the victim, he went to a third-floor apartment in Rogers Park where his sister (Debra Barlow) was staying with a friend named Frances Cook. Defendant recalled that his sister mentioned it was 6 a.m. and he left there by 7 a.m. From Cook's apartment, defendant went to the public aid office at 445 North Sacramento and then to the currency exchange at Madison and Western. For the next couple days, defendant purchased and took drugs at different locations, generally staying in Garfield Park.
After obtaining defendant's statement about midnight or 1 a.m., Walsh went to the Cook apartment but found no one home and left a business card with instructions to have Cook contact him as soon as possible. Walsh then went to the public aid office on Sacramento and to the currency exchange at Madison and Western but both offices were closed.
About 6:15 a.m. on July 9, Walsh returned to the police station. Shortly thereafter Frances Cook called and informed Walsh that neither defendant nor his sister was in her apartment on the night of July 4. Walsh did not speak to Debra Barlow regarding this investigation.
About 7 a.m. Detective Walsh told defendant about Ms. Cook's conversation and defendant insisted that he was at Ms. Cook's apartment. With defendant's consent, Walsh scheduled a polygraph examination for the first available appointment which was at 6:30 p.m. that same night at the crime lab. Walsh then went off duty and later returned to the police station between 4 and 4:30 p.m. About 5 p.m. Walsh spoke to defendant and took him to the crime lab for the 6:30 p.m. appointment. The record is silent for the time period between 7 a.m. and 5 p.m.
About 9:30 p.m., after the polygraph exam, Walsh and defendant returned to the police station. About 10 p.m. Walsh told defendant that several discrepancies appeared in his version of the events and defendant stated he wanted to tell the truth. The arrest report states the time of arrest at 10 p.m. on July 9.
After Walsh again advised defendant of his Miranda rights, defendant stated that during the evening in question (July 4 through 5) he had made an agreement with the victim in which he would buy her cocaine or beer in exchange for her performing an act of oral sex on him. When he asked her to keep her part of the bargain, she declined, slapped him and ran. Defendant chased her and when he caught her, he started kicking her numerous times, took off her clothes and also hit her with an aerosol can. Defendant entered an abandoned building, obtained shoe strings, stuffed tissue in the victim's mouth and wrapped the shoe strings around her neck to stop her from moaning. Defendant went back into the building, got a blanket, wrapped the victim in the blanket and threw her in a garbage can. Defendant recalled the events taking place in the early morning hours of July 5 but did not know the exact time.
About 10:15 or 10:30 p.m., Detective Walsh then contacted the felony review unit of the State's Attorney's Office. About 11 p.m. an assistant State's Attorney began his conversation with defendant. After being advised of his Miranda rights, defendant reiterated the same confession and opted to have his confession reported in the form of a handwritten statement as opposed to a ...