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December 27, 1995


Appeal from the Circuit Court of Cook County. Honorable John J. Moran, Judge Presiding.

Petition for Leave to Appeal Denied April 3, 1996.

The Honorable Justice Tully delivered the opinion of the court: Rizzi and Cerda, JJ., concur.

The opinion of the court was delivered by: Tully

The Honorable Justice TULLY delivered the opinion of the court:

Following a bench trial, defendant, Joseph Hornsby, was convicted of first-degree murder in violation of section 9-1(a) of the Criminal Code of 1961 (720 ILCS 5/9-1(a) (West 1992)) and sentenced to a term of 40 years' imprisonment for that crime. It is from the judgment of conviction that defendant now appeals to this court pursuant to section 6 of article VI of the Illinois Constitution (Ill. Const. 1970, art. VI, ยง 6) and Supreme Court Rule 603 (134 Ill. 2d R. 603).

For the reasons which follow, we affirm and remand with directions.


Defendant's conviction arose from the killing of Nelson Torres in a drive-by shooting on June 24, 1992, near 2817 North Kedzie Avenue in Chicago. At a hearing on the motion to suppress, defendant's sister, Debbie Hornsby (hereinafter Debbie) testified that at 8 a.m. on June 25, 1992, two police officers came to the home she shared with defendant and asked to speak with him because his license plates were identified by a witness to a shooting. Defendant spoke with the officers, then went to the police station with them.

Debbie testified that defendant was a diabetic and needed to maintain a proper diet and take one insulin shot each morning. Debbie recalled that defendant had his shot as scheduled before he left for the police station. Just prior to midnight, Debbie went to the police station with a bag containing insulin for the shot defendant would need the next morning. Debbie was allowed to speak with defendant in an interview room and testified that he was pale and shaking and did not understand her questions.

Defendant testified that he required two insulin shots each day, one at 6 a.m. and the other between 4 p.m. and 5 p.m. On the morning of June 25, 1992, he accompanied the officers to the police station where he was placed in a locked room and questioned. The officers left him alone in the room after he denied involvement in the shooting. Approximately four hours after he arrived at the station, defendant told them that he was a diabetic and needed something to eat because his blood sugar was low and he was going into insulin shock. According to defendant, Detective William Johnston said that defendant would not get anything to eat until "they got something," and the officers left. At some point, an unidentified officer pushed defendant in the chest and told him he would receive all of the blame for the murder and would not get his medication the next day if he did not make a statement. Defendant testified that after his requests for food and medication were repeatedly denied, he answered their questions and made the statements that formed the basis of his motion to suppress. Defendant admitted on cross-examination that at the time he made the statements, it was not yet time for his second insulin shot. Defendant also testified that sometime after making the statement, he was given a hot dog, french fries and a soft drink.

Defendant testified that later that evening, he spoke to Assistant State's Attorney John Dillon and signed a form consenting to a search of his house. Defendant also gave a written statement at 1 a.m. on June 26, 1992, detailing his involvement in the shooting. According to defendant, Dillon did not advise him of his constitutional rights until after he made the statement, and he did not tell Dillon of the mistreatment by police because he was afraid. Defendant testified that he never received his second insulin injection on June 25th, but was taken to a hospital for his morning injection on June 26th.

The parties stipulated that an emergency room physician at Our Lady of the Resurrection Hospital would testify that he gave defendant an insulin injection at 6:38 a.m. on June 26, 1992, and that defendant's color was good at that time and his skin was warm and dry. Defendant was discharged 10 minutes later in good condition. The parties further stipulated that a nurse from Cook County Hospital would testify that at 8:30 p.m. on June 27, 1992, defendant was transferred there from Cermak Hospital for the treatment of uncontrollable diabetes. Another stipulation established that from June 28, 1992, through July 7, 1992, defendant received one insulin shot each morning at Cermak Hospital and did not receive a second injection on any of those days.

Detective Stephen Gawrs testified that he, Detective William Johnston and Sergeant Edmengy went to defendant's house at 10 a.m. on June 25, 1992. Defendant denied involvement in the shooting and agreed to accompany the officers to the police station. After being advised of his Miranda rights, defendant made a statement implicating himself and others. Gawrs and the other officers then left defendant in the interview room while they continued their investigation. Gawrs testified that, prior to making the statement, defendant did not mention having diabetes or needing food or medication. At approximately 1 p.m., defendant was given a cheeseburger and soft drink. Defendant was also given cigarettes and water and allowed to use the bathroom. Defendant looked fine and did not complain that he was feeling ill or that he had needs that were not being met.

Gawrs further testified that Dillon arrived at the police station at 7 p.m. that evening and obtained defendant's consent to a search of his house. At approximately 11 p.m., Debbie came to the station with a bag of medical utensils. Gawrs stated that the bag was given to another officer for safekeeping because ...

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