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08/08/95 J.W. v. J.W.

August 8, 1995


Appeal from the Circuit Court of Cook County. Honorable Thomas M. Davy, Judge Presiding.

Petition for Leave to Appeal Denied December 6, 1995.

The Honorable Justice Hartman delivered the opinion of the court: McCORMICK *fn7, J., concurs. DiVITO, J., dissents.

The opinion of the court was delivered by: Hartman

JUSTICE HARTMAN delivered the opinion of the court:

J.W., a minor, was adjudicated delinquent for committing acts that made him accountable for the offense of first degree murder. (720 ILCS 5/9-1(a) (West 1992).) J.W. appeals from the rulings of the circuit court, questioning whether (1) the circuit court erred in denying his motion to quash arrest and suppress evidence; and (2) his statement was sufficiently attenuated from the arrest to be admissible.

On May 24, 1994, a hearing was held on J.W.'s motion to quash arrest and suppress evidence. J.W. testified that on March 23, 1994, he was 14 years old and in the eighth grade at Bunche school. At approximately 1:45 p.m., he was called to the principal's office, wherethe assistant principal and three police officers were waiting. As J.W. walked into the office, one police officer stayed in the office, and the other two walked out and stood on either side of the door. Sergeant Lewis introduced himself, told J.W. that he wanted to ask some questions regarding the homicide of Byron Drew, and asked J.W. if he had any relatives living near school. Upon his reply, Lewis called J.W.'s home, which was five blocks from school, and talked to his brother, who told him that their mother was not there. J.W. testified that Lewis then called his grandmother, who lived in a separate home. A school security guard and Officer William Bertha thereafter escorted J.W. back to the classroom to pick up his book bag and coat. According to J.W., Bertha walked alongside J.W. with his left hand on J.W.'s left shoulder, but said nothing.

The police officers then took J.W. to the police station. J.W. testified that at the time he was scared and felt that he had to go with them. J.W. was never told during the ride that he did not have to go to the police station or that he was not under arrest. He was placed in the back of the police car with Sergeant Lewis, and Officer James Oliver drove; Officer Bertha left in a separate car. As J.W. was about to remove a book from his bag, Lewis asked him what was in there, then searched the bag, and told him to zipper it up. J.W. testified that there were no door handles in the back seat of the car. They then stopped at Church's Chicken because Lewis said he was getting hungry. Lewis exited the car to get the food, and Oliver and J.W. stayed in the car.

When they arrived at the station, Sergeant Lewis walked with J.W. on his left side, and Officer Oliver had his left hand on J.W.'s left shoulder. J.W. was placed next to a table in a large room, where he read his spelling book for awhile; Officer Bertha also sat at the table. The officers then walked J.W. to a file room, where he waited for about five minutes. Although the door to the file room was left open, J.W. felt that if he walked out they would have locked him up. The officers then took J.W. to another large room, where he was questioned. The door to that room was also open. J.W. was not told that he was not under arrest or that he was free to leave.

J.W. told police he had no knowledge about the homicide of Byron Drew. Sergeant Lewis then told J.W. not to "mess with them" because they had three witnesses and fingerprints, and if those witnesses implicated J.W. in the murder, he would be put away without any questions.

On cross-examination, J.W. stated that when he was at the school, he did not want his other classmates to know he was talking to the police. He also said he was treated well by the police and was willingto answer any questions that they had. During this period, J.W. was not told that he was under arrest, and he was not fingerprinted, handcuffed, or photographed until approximately 8 p.m. the same day, when he was "booked." J.W. testified that he was arrested once or twice before and, at that time, was handcuffed, was told he was under arrest, and was asked "booking" questions.

Officer Oliver testified that on March 23, 1994, while investigating the homicide of Byron Drew, he had a conversation with the victim's father at approximately 12 p.m. The father told Oliver that J.W. was a witness to his son's murder, that he knew something about the shooting, and that J.W. attended the Bunche school at 65th and Ashland. Oliver, Officer Bertha, and Sergeant Lewis went to the school and spoke with the principal. A teacher's aide brought J.W. to the principal's office. The principal asked J.W. for his home telephone number, and the school clerk called his home and spoke with the grandmother. Prior to the call, Oliver gave the school clerk his name, telephone number, and information regarding where they would be going.

After J.W. agreed to speak to the officers about an incident in July 1993, Officer Oliver told J.W. that they would be going to the Area Two police station. J.W. was brought to the police station because Oliver did not have the police reports with him, there was no privacy at the school, and it was an Area Two case. Oliver stated on cross-examination that he never asked the principal if they could use a room in the school to speak to J.W. privately. Oliver never told J.W. that he did not have to go to the police station or that an adult family member may accompany him to the station.

Officer Oliver testified that he did not tell J.W. how they were getting to the police station, but did not think J.W. had any way of getting there on his own. Sergeant Lewis accompanied Oliver in the front passenger seat of the car, and J.W. sat alone in the back. Officer Bertha drove his own car. J.W. was neither handcuffed nor was he told that he was under arrest.

When they arrived at the station at 2:30 p.m., J.W. sat at a desk, waiting for Detective Karl to arrive. Karl, Sergeant Lewis, and Officers Oliver and Bertha then interviewed J.W. in a big, open conference room. J.W. denied any knowledge of the homicide. Oliver, dissatisfied with J.W.'s answer, asked him more questions. After approximately 10 to 15 minutes more of questioning, J.W. admitted his involvement in the murder. *fn1 J.W. stated that in July of 1993, Gregory Johnson, the other suspect in the homicide, picked him upin a red Mustang and drove him to 76th and Yates. There, Johnson shot Byron Drew, gave the gun to J.W., and then drove a short distance and gave J.W. $5.

After hearing J.W.'s statement, Detective Karl called for an assistant State's Attorney and a youth officer, and contacted J.W.'s family. *fn2 It was approximately 4:30 or 5 p.m. at this point. Some time later, J.W. gave a "short version" of his statement with the assistant State's Attorney present. The assistant State's Attorney then read J.W. his Miranda rights. J.W. said he understood and wanted to tell the truth.

According to Officer Oliver, J.W. told them that Gregory Johnson approached him in July 1993 about accompanying Johnson on a "hit." J.W. agreed. On the day of the shooting, Johnson picked up J.W. and drove him to Johnson's apartment, where they picked up a gun and ski masks. They drove in a red Mustang to 76th and Yates. They saw Byron Drew working on his car. Later, they pulled up next to Drew. When J.W. could not shoot the gun, Johnson took it from him and shot Drew. Johnson exited the car and shot Drew again. Later, Johnson gave J.W. $5. Oliver testified that after J.W. gave his statement, he formally was placed under arrest.

Prior to questioning J.W., Officer Oliver learned that a red Mustang carrying two people was at the scene of the homicide and that Gregory Johnson was already in police custody. Oliver denied placing his hand on J.W.'s shoulder as he walked with him from the police car to the station.

Officer Bertha testified that he and a school security guard accompanied J.W. from the principal's office to his classroom to pick up his books. He also did not recall placing his hand on J.W.'s shoulder at that time. On cross-examination, Bertha agreed that he walked with J.W. to make sure that he got to the classroom and then back to the principal's office.

On May 31, 1994, the circuit court found that J.W. was not under arrest, but was instead merely a witness until about 3:30 p.m., when he changed his story and implicated himself in the shooting. On the issue of whether J.W. was physically constrained when he was walked to his classroom to pick up his coat and books, the court found the testimony of Officer Bertha more credible. Further, no "trappings of an arrest" were present in the police car. Prior to J.W.'s incriminatingstatement, a reasonable, innocent person would not have considered himself under arrest. The court denied the motion to quash arrest and suppress evidence.

On June 6, 1994, an adjudication hearing was held. Chicago police officer Dee Williams testified that on July 19, 1993, at approximately 8 p.m., she responded to a report of a man having been shot at 7622 S. Phillips. At the scene, Williams saw paramedics working on Drew, who had been shot. She interviewed three witnesses, Diane Winters, James Commons, and John Johnson (John), and took notes.

John testified that on July 19, 1993, he was a self-employed construction worker, employed at 7649 S. Yates, with Commons, working on the back porch of 7649 S. Yates facing the alley. They heard two or three gunshots fired within a span of one or two minutes. A few minutes later, John saw a red sports car speeding through the alley. The passenger side of the car was closest to him, but because the windows of the car were tinted, he was unable to see inside. John went to the alley and saw people gathered around a black male lying on the ground. On cross-examination, John denied reporting that the driver of the car was young or that the second person was between the ages of 20 and 30.

Detective Karl testified concerning J.W.'s second confession, when the assistant State's Attorney was present, which tracked that given by Officer Oliver at the motion to suppress. After J.W.'s initial confession, Karl called J.W.'s grandmother around 4:00 p.m. She would go to the station as soon as she could locate J.W.'s mother. J.W.'s mother and grandmother eventually arrived at the police station shortly before 5:00 p.m. At that time, Karl and the assistant State's Attorney had a conversation with J.W., his mother, and his grandmother. After that conversation, J.W. talked to his mother and grandmother alone for about 5 to 15 minutes. Shortly thereafter, at approximately 6:45 p.m., J.W.'s written, ...

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