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10/26/95 PEOPLE STATE ILLINOIS v. FARNARDO ANDERSON

October 26, 1995

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,
v.
FARNARDO ANDERSON, DEFENDANT-APPELLANT.



APPEAL FROM THE CIRCUIT COURT OF COOK COUNTY. HONORABLE JOSEPH J. URSO, JUDGE PRESIDING.

Released for Publication November 28, 1995. Petition for Leave to Appeal Denied January 31, 1996.

Presiding Justice Hoffman delivered the opinion of the court: Theis and S. O'brien, JJ., concur.

The opinion of the court was delivered by: Hoffman

PRESIDING JUSTICE HOFFMAN delivered the opinion of the court:

A jury found the defendant, Farnardo Anderson, guilty of first-degree murder, for which he was sentenced to 39 years' imprisonment. On appeal, he contends that (1) the court erred in refusing to suppress his confession; (2) he was denied effective assistance of counsel because his attorney failed to learn prior to trial that he had a history of mental illness; (3) he was entitled to a new trial because his counsel could not reasonably have learned of his mental illness until after trial; (4) he was denied a fair trial by the prosecutor's cross examination, which was intended to inform the jury that the defendant had been released from prison immediately before trial; and (5) his sentence was an abuse of discretion.

On November 16, 1990, about 5 p.m., the decedent, Charles Brown, was shot to death in the vicinity of eastern Lawrence Avenue in Chicago. The decedent was standing among a group of men when two other young men, the defendant and Silas Barnes, approached and opened fire, striking and killing the decedent. The defendant's case proceeded to trial separately before a jury.

The State presented the testimony of several members of the decedent's gang, including Nick Sanders, Brian Richardson, Lavelle Douglas, and John L. Brown (Brown), who testified to having been present during the shooting. The evidence established as follows. About 3 p.m. on November 16, 1990, Sanders, Richardson, Douglas and others were in front of a restaurant near the Lawrence Avenue "el" stop when the decedent approached with bruises on his face. Shortly thereafter, the defendant and Barnes exited the "el" station, and a fist fight ensued between them and Sanders, Richardson, and the decedent. Police arrived shortly thereafter and broke up the fight, but the defendant and Barnes stated that they would be back. Brown testified that at this point, he noticed that the defendant had been injured above his right eye and that he was bleeding.

Later that day, at approximately 5 p.m., the decedent, Sanders, Richardson, and Douglas were in a parking lot behind the Aragon ballroom when the defendant and Barnes approached. Barnes retrieved a pistol from his pants and said "Surprise, bitches, what's up". Sanders, Richardson, and Douglas testified that they then heard shots and began running. Richardson and Douglas testified to having seen both Barnes and the defendant firing weapons. Douglas testified that there were between 12 and 14 shots and that he recognized the sounds of both a .9 millimeter automatic and a revolver. The men fled until the shooting stopped. They later returned to the scene, where they found the decedent motionless on the ground. Shortly thereafter, the defendant was apprehended by police. Richardson and Douglas subsequently identified the defendant in a lineup.

The defendant asserted an alibi defense. His mother's landlord, John Katsafaros, testified to observing the defendant helping another tenant move items out of the building during the afternoon of the shooting. Defense witness Jeanne Powell testified that she witnessed the shooting, and that the offenders were two boys, neither of whom was the defendant. Finally, Lucinda Burroughs and her mother, Josephine Burroughs, testified that they met the defendant near the Bryn Mawr "el" stop about 5:15 that afternoon. They had begun walking toward the lake with him, when police arrived and took the defendant away with them.

In rebuttal, Pradeep Roy-Singh, an assistant State's Attorney, testified regarding a statement given by the defendant after his arrest, which was later reduced to writing. In the statement, the defendant admitting being a gang member and participating in the fist fight as described by State witnesses. The defendant also admitted being present during the shooting, but denied having a gun, and stated that Barnes alone fired the shots.

In surrebuttal, the defendant testified that he was 16 years old on the day of the shooting, and that he spent the afternoon of November 16 assisting a woman named Darnice in her move to Humbolt Park. The defendant described two separate bus trips he made that afternoon moving belongings from Darnice's home to Humbolt Park. The move was completed about 4:15 p.m., at which time the defendant returned home on the "el" train. Exiting the station, the defendant encountered Lucinda Burroughs, and was apprehended by police while he conversed with her. The defendant further testified that he was coerced into signing his statement at the police station.

Following arguments, the jury convicted the defendant of first degree murder. He then moved for a new trial based upon, inter alia, newly discovered evidence of his past mental illness. The trial court denied the motion, and after a hearing, sentenced the defendant to 39 years' imprisonment. The instant appeal followed.

The defendant first contends that his statement to police was not given knowingly and voluntarily, because the officers failed to contact his family or to afford him an opportunity to confer with a youth officer prior to giving the statement, in violation of section 3-8(2) of the Juvenile Court Act of 1987. 705 ILCS 405/3-8(2) (West 1992).

The defendant and Barnes were arrested about 5:45 p.m. on November 16, 1990. Officer Harlan Rothgeb testified that about 7:15 p.m., he informed the defendant that he had been identified as a perpetrator in the shooting and that he would be placed in a lineup. The lineup commenced at approximately 9:45 p.m. and concluded by 10:30 p.m. Rothgeb testified that at that time, he obtained telephone numbers from the defendant and Barnes and attempted unsuccessfully to contact their relatives. Between 10:30 and 11:00 p.m., Rothgeb contacted the State's Attorney's office and the youth division, notifying them that a youth officer was needed.

About midnight, youth officer Harry Drochner and Assistant State's Attorney Roy-Singh arrived at the station. Drochner testified that when he first saw the defendant, he noticed a cut above his eye and inquired how it came about. The defendant replied that it had occurred during a gang fight earlier that day, and declined Drochner's offer of medical attention. Drochner also asked whether the defendant wanted something to eat, but he declined. Then, from about 12:30 until 1 a.m., Rothgeb interviewed the defendant in the presence of Drochner. Prior to the interview, Rothgeb advised the defendant of his rights under Miranda, which he defendant indicated he understood. Additionally, both Rothgeb and Drochner apprised the defendant that he could be tried as an adult due to the nature of his charge. Finally, Drochner obtained parental information and telephone numbers from the ...


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