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August 4, 1995


Appeal from the Circuit Court of Cook County. Honorable William J. Hibbler, Judge Presiding.

Petition for Leave to Appeal Denied December 6, 1995.

The Honorable Justice Zwick delivered the opinion of the court: McNAMARA, P.j. and Egan, J., concur.

The opinion of the court was delivered by: Zwick

JUSTICE ZWICK delivered the opinion of the court:

Defendant, Michael Mason, was convicted following a jury trial of first degree murder and subsequently sentenced to a term of 40 years in the penitentiary. He now appeals his conviction, raising the following issues for our review: (1) whether the trial court committed error in denying his motion to quash his arrest and suppress evidence; (2) whether the admission of certain gang evidence was irrelevant and prejudicial; (3) whether the State was permitted to admit improper evidence of polygraph examinations taken by defendant; (4) whether comments made by the prosecutor during closing arguments were inflammatory and improper; and (5) whether his sentence was excessive.

Defendant was convicted of shooting Charles Hayes at approximately 11 p.m. on the night of April 25, 1990, at 57th and Winchester, in Chicago. When police arrived at the scene, Hayes was still alive and laying under a parked automobile. Hayes later died from his injuries. Because the defendant was seen with the victim shortly before he was shot, police surmised that he could have been a witness to the crime and searched the neighborhood in an effort to find him. Both Hayes and the defendant were members of the same street gang, the Gangster Disciples. After finding defendant with Joe Kidd in the late morning hours of April 26, 1990, police transported defendant to Area Three Police Headquarters for questioning. At Area Three, defendant ultimately confessed to shooting Hayes at the direction of a Dan Wesson, a ranking member of the Gangster Disciples.

Defendant first argues that the trial court improperly denied his motion to quash his arrest and suppress evidence of his statements to police. Defendant claimed that he was arrested on the street by police and that, at this time, police did not have probable cause to detain him. Following a hearing on defendant's motion, the trial court ruled that the defendant voluntarily accompanied police to the police station on April 26, 1990, and that defendant did not become a suspect in the murder investigation until much later, when his statements to the police indicated he may have actually taken part in the murder. Although the court indicated it was troubled by the fact that defendant had remained in the stationhouse for nearly 48 hours before being placed under arrest, the court found that defendant's fear of retaliation from members of his own gang for his cooperation with police was the basis for his voluntarily staying in the safety of the stationhouse.

As we have noted, evidence presented at the hearing indicated that police had information the defendant was present on the street shortly before Hayes was shot. Officers James O'Brien, Fred McKinley and Norfie Diciola testified they located defendant at Joe Kidd's house and that defendant voluntarily agreed to go to Area Three to assist them in their investigation of the shooting. Once at the police station, defendant told detectives that Dan Wesson was the shooter and that Terry Williams and Joe Kidd were also present. Although the detectives were able to locate Williams and Kidd, they were unsuccessful in their efforts to locate Wesson, whom they intended to arrest. During this time, defendant indicated he was afraid of Wesson and that he did not wish to leave the station until after officers had taken Wesson into custody.

When defendant was informed by police, following their follow-up investigation, that they could not find anyone to verify his story, defendant volunteered to take a polygraph examination. Upon taking and failing the polygraph examination the next day, defendant changed his story, stating that it was Williams, and not Wesson, who was the shooter.

The police subsequently interviewed Williams who denied involvement. Williams also agreed to take a polygraph examination. After Williams passed the examination and after defendant was told this fact, defendant stated that he wanted to take the test again. Upon being informed that he had failed the second test, defendant changed his story again, stating that Wesson had told him to bring a gun to a gang meeting in Gage Park on the day of the shooting. Defendant stated that he gave a gun to Williams at this meeting. Defendant told police that he, Wesson and Hayes were still at the meeting at the time of the shooting, but that Williams had left 30 minutes earlier with the gun. He then insisted on speaking with Detective McKinley.

After meeting with McKinley, defendant changed his story yet again, this time confessing to shooting Hayes. Assistant State's Attorney Pamela Hughes was present during a subsequent court-reported statement in which defendant stated that he was afraid of Dan Wesson because Wesson had threatened to kill him if he did not "ice" Hayes. Although Wesson, Hayes, Williams and the defendant were all Gangster Disciples, Wesson was upset with Hayes for having lost a weapon to the police which had been used in a previous murder. Wesson was concerned that Hayes would become an informer for the State. Defendant told Assistant State's Attorney Hughes that he had come to the police station voluntarily and denied that he had been threatened by police.

It is settled law that a reviewing court will not overturn a trial court's ruling on a motion to quash an arrest and suppress evidence unless the trial court's ruling is "manifestly erroneous." ( People v. Adams (1989), 131 Ill. 2d 387, 400, 546 N.E.2d 561, 137 Ill. Dec. 616.) "Manifestly erroneous" or "against the manifest weight of the evidence" occurs where the trial court's ruling is "'palpably erroneous and wholly unwarranted' or 'arbitrary, unreasonable, and not based upon the evidence.'" ( People v. Leach (1993), 245 Ill. App. 3d 644, 655, 612 N.E.2d 825, 183 Ill. Dec. 898, citing People v. Shelby (1991), 221 Ill. App. 3d 1028, 1039, 582 N.E.2d 1281, 164 Ill. Dec. 337.) It is the function of the trial court to weigh the evidence, determine the credibility of the witnesses, and to resolve any conflict in their testimony. People v. Redd (1990), 135 Ill. 2d 252, 268, 553 N.E.2d 316, 322, 142 Ill. Dec. 802.

The trial court, in ruling on the motion, made specific findings that defendant's witness, Joe Kidd, was not credible. The trial court stated that credible evidence adduced at the hearing established that defendant voluntarily accompanied the police to the station at their invitation. The trial court stated that probable cause to arrest defendant began to evolve as the lie detector tests were being administered to defendant and the results were such as to create questions as to his veracity. As to the issue of whether defendant remained at the police station voluntarily, the trial court discussed its findings as follows:

"At no time prior to the time that sufficient probable cause to arrest the Defendant had evolved, at no time did the Defendant request permission to leave that facility.

At no time did he indicate a desire to leave the facility and at no time did the police officers do anything to discourage him in making that request.

I find that under the circumstances in this case that the credible evidence establishes that the defendant continually and even in his final statement expressed fears that [he] would be associated with the police were he to be allowed -- were he to leave the police facility, and I believe it is that fear, as established in this hearing that had kept him there without any request to leave. Therefore, the Motion[s] *** will be denied."

In light of the conflicting testimony in this case and in light of the court's specific findings, we cannot conclude that the court's ruling was manifestly erroneous. The trial court clearly believed the State's version of events over the testimony of the defendant and of Joe Kidd. On these facts, we cannot conclude that the trial court's findings were either arbitrary or unreasonable. See People v. Perez (1992), 225 Ill. App. 3d 54, 587 N.E.2d 501, 167 Ill. Dec. 232 (affirming denial of motion to quash arrest and suppress evidence on similar facts).

Defendant next asserts that the State, during the presentation of its case, improperly put into evidence irrelevant testimony regarding Chicago's street gangs, which the defendant claims was highly inflammatory. Defendant claims that the cumulative and prejudicial effect of this gang testimony necessarily undermined the ability of the jury to fairly consider the issues presented.

Defendant first argues that police officer Thomas McMahon should not have been allowed to testify as to elements of gang life which had no bearing on the issues of the case. In his testimony, Officer McMahon described in detail various Chicago gangs and their affiliations under two large national organizations, the Folks and the People. The State presented evidence that the victim and the defendant were each members of the Gangster ...

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