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01/18/96 PEOPLE STATE ILLINOIS v. CORTEZ BROWN

January 18, 1996

THE PEOPLE OF THE STATE OF ILLINOIS, APPELLEE,
v.
CORTEZ BROWN, APPELLANT.



Appeal from the Circuit Court of Cook County, the Hon. Earl E. Strayhorn, Judge, presiding.

Chief Justice Bilandic delivered the opinion of the court: Justice Harrison took no part in the consideration or decision of this case.

The opinion of the court was delivered by: Bilandic

CHIEF JUSTICE BILANDIC delivered the opinion of the court:

Following a bench trial in the circuit court of Cook County, the defendant, Cortez Brown, was convicted of one count of murder. The defendant's death sentencing hearing proceeded before the trial judge sitting without a jury. The trial judge found the defendant eligible for the death penalty (720 ILCS 5/9-1(b)(3), (b)(11) (West 1994)), and further found that there were no mitigating factors sufficient to preclude imposition of a death sentence. The defendant's sentence has been stayed pending his direct appeal to this court. Ill. Const. 1970, art. VI, ยง 4(b); 134 Ill. 2d Rules 603, 609(a).

FACTS

The defendant's conviction in this case arose out of the shooting death of Curtis Sims on June 8, 1990, at 5313 South Bishop in Chicago. Christopher Posey testified at trial that he was sitting on the porch at that address with Sims at the time the shooting occurred. Posey stated that he heard shots being fired, saw two persons firing weapons, and ran upstairs into the building.

Officer James Williamson and Officer Robert Trlak were on uniform patrol in the early morning hours of June 8, 1990. At 2:40 a.m., the two officers came upon a gray Ford in their patrol area. While the officers were talking to the driver, they heard gunfire. Officer Williamson testified that he heard quite a few shots, fired from two distinct weapons. The officers told the driver of the gray Ford to leave the area and proceeded in their squad car toward the location of the gunfire. As they were doing so, the officers saw two black males running toward them in an alley. Both of the officers testified that the shorter of the two men, running in back of the other, was carrying a large black gun, and the taller man was carrying a smaller handgun. The officers were pursuing the men when they saw the same gray Ford they had seen before pull up, and the shorter of the two fleeing men jump into it. The officers pursued the car until, with the car still moving, the two occupants jumped out and ran. Each of the officers chased one of the occupants on foot, but they were unable to apprehend them.

On June 9, 1990, Officers Williamson and Trlak each viewed a lineup and identified Dwayne Macklin as the taller man they had seen running in the alley, and identified Willie Walker as the driver of the gray Ford. On September 21, 1990, Officers Williamson and Trlak each viewed another lineup and identified the defendant as the man running in the alley carrying the large black gun. Both of the officers also examined one of the State's exhibits, a large black .45-caliber Uzi, and stated that it resembled the weapon carried by the shorter man in the alley.

The crime scene revealed shell casings from a .45-caliber weapon and from a 9-millimeter weapon, along with one fired bullet. The autopsy of Curtis Sims' body disclosed that he sustained three gunshot wounds to his back, buttocks and leg. The bullets remained in two of the wounds, but had left the body in the third wound. One .45-caliber bullet and one 9-millimeter bullet were recovered from Sims' body. The pathologist testified that Sims died as a result of the gunshot wounds. The pathologist could not say which of the three wounds caused Sims' death, but agreed that "any three of them" could have killed him.

Following the arrest of Macklin soon after the murder, Macklin gave Chicago Detective Michael Kill information about the location of some weapons. As a result, Detective Kill recovered a 9-millimeter handgun. A firearms expert testified that a 9-millimeter cartridge case recovered from the Sims murder scene was fired from this gun. The police also recovered a .45-caliber Uzi at 5933 South Union in Chicago, as a result of information gained from a suspect arrested in another case. A firearms expert testified that the fired .45-caliber bullets from the Sims murder had the same class characteristics as those he test fired from the recovered Uzi.

On September 20, 1990, the defendant was arrested by police in Park Forest, Illinois, after he jumped out of a moving stolen vehicle. When it was learned that there was a warrant outstanding for the defendant's arrest in Chicago, the defendant was turned over to the Chicago police department. The defendant gave Chicago police an oral and a court-reported statement regarding the Sims shooting. Both of the defendant's statements were admitted into evidence. In his statements, the defendant relayed the following about the shooting of Curtis Sims.

At approximately 12 a.m. on June 8, 1990, the defendant was standing with Willie Walker near the corner of 59th Street and Union Avenue in Chicago. The two men were approached by Dwayne Macklin. Both Macklin and the defendant were members of the Gangster Disciples street gang. Macklin told the defendant and Walker that some members of a rival gang, the Vice Lords, had been bothering Macklin when he went to visit his girlfriend. Macklin asked whether defendant and Walker wanted to "go over to 53rd and Bishop to see some Vice Lords." The defendant understood Macklin's suggestion to mean that he wanted to go there to shoot some Vice Lords. The defendant agreed to go with Macklin.

Macklin thereafter rented a car to take the three men to their destination. Walker drove the car. Both the defendant and Macklin carried guns. According to the defendant, Macklin carried a .45-caliber Uzi and the defendant carried a .25-caliber semiautomatic weapon. Walker drove the car to the corner of 53rd and Bishop and dropped off the defendant and Macklin. The defendant and Macklin then walked a short distance to 5313 South Bishop, where two men were sitting on the porch. According to the defendant, Macklin said "what's up" to the men and started shooting at them with the Uzi. The defendant stated that Macklin fired between 9 and 13 shots and that the defendant stood next to him during the shooting "watching his back." Both the defendant and Macklin then fled the scene.

Also following his arrest on September 20, 1990, the defendant was questioned regarding the murder of Delvin Boelter. The defendant gave a statement regarding the Boelter murder at that time. Because there is some interplay between this case and the Boelter case, we briefly discuss the Boelter murder.

Delvin Boelter, a member of another rival gang, the Black Disciples, was shot to death in an alley on September 16, 1990. Four men, including the defendant, were charged with Boelter's murder. One man pled guilty to murder and one man was tried and acquitted of the murder. The defendant was tried, jointly with the fourth man, at a jury trial presided over by the same trial judge who conducted the trial in this case. The defendant and his codefendant were both found guilty of Boelter's murder. The conviction against the defendant was based upon an accountability theory, as it was not alleged that the defendant actually shot Boelter. While this appeal has been pending, the defendant's conviction for the Boelter murder was reversed by the appellate court, and the cause was remanded for a new trial (No. 1-92-2732 (unpublished order under Supreme Court Rule 23)).

In the instant case, the defendant was found guilty, after a bench trial, of one count of murder. Prior to trial, the defendant signed a jury waiver for sentencing. The trial judge found the defendant eligible for the death penalty, and thereafter heard evidence in aggravation and mitigation. The trial judge found that there were no mitigating factors sufficient to preclude the death penalty and, accordingly, sentenced the defendant to death.

ANALYSIS

The defendant raises several challenges to the propriety of his murder conviction and death sentence. With regard to his conviction, the defendant contends that reversal is warranted because: (1) his inculpatory statements to police regarding the shooting were involuntary, and (2) the evidence was insufficient to prove beyond a reasonable doubt that he caused Sims' death. With regard to his death sentence, the defendant also asserts several challenges; however, due to our disposition of this case, we address only the following contentions: (1) that the defendant's waiver of a jury for sentencing was invalid; (2) that his eligibility for the death penalty was not sufficiently proven; and (3) that the Illinois death penalty statute is unconstitutional. For the reasons stated below, we affirm the defendant's murder conviction but vacate the defendant's death sentence and remand for a new death sentencing hearing.

I

Trial Issues

Voluntariness of Defendant's Statements

The defendant asserts that his oral and written statements to police inculpating himself in the Sims shooting were involuntary and were therefore improperly admitted at his trial. We disagree.

The State first urges us to find that the defendant has waived this issue because he did not, prior to the commencement of his trial for the Sims murder, move to have his statements suppressed. As the State points out, prior to the Boelter murder trial, all of the defendants, including this defendant, filed motions to suppress their statements. The trial judge denied the defendant's motion to suppress. The State submits that, because the defendant did not renew his motion to suppress prior to or during the Sims murder trial, the defendant has waived the issue in this case. We decline to find waiver here. It appears that the pretrial litigation of both the Sims murder case and the Boelter murder case proceeded simultaneously, and the defendant's motion to suppress covered his statements regarding both murders. The captions of the reports of proceedings of the lengthy suppression hearing refer to either the indictment numbers for both the Sims case and the Boelter case or the number for the Sims case only. Moreover, the testimony at the suppression hearing clearly encompassed the circumstances surrounding the defendant's statements about the Sims murder. This is logical, considering that the defendant's statements in each of the cases were apparently given during the same period of custody, following his arrest in September 1990. In light of the foregoing we find that the defendant's motion to suppress adequately preserved the voluntariness issue for review in this case. Turning to the merits of the issue, however, we conclude that the defendant's statements were properly admitted.

The defendant asserts two challenges to the admission of his inculpatory statements. First, the defendant contends that the statements were the result of threats and coercion and were therefore involuntary. Second, the defendant contends that the statements were obtained pursuant to questioning by police following the defendant's assertion of his right to counsel.

We first analyze the defendant's claim that his statements were the result of a coercive environment. In determining whether a defendant's inculpatory statement was voluntarily made, this court must look at the totality of the circumstances surrounding the making of the statement. ( People v. Melock (1992), 149 Ill. 2d 423, 447, 174 Ill. Dec. 857, 599 N.E.2d 941; People v. Terrell (1989), 132 Ill. 2d 178, 198, 138 Ill. Dec. 176, 547 N.E.2d 145.) Voluntariness turns on several factors, including "the age, education and intelligence of the accused, the length of the detention and the duration of the questioning, whether the accused was advised of his constitutional rights, and whether the accused was subjected to any physical mistreatment." ( People v. House (1990), 141 Ill. 2d 323, 376, 152 Ill. Dec. 572, 566 N.E.2d 259.) The benchmark for voluntariness is not whether the defendant would have confessed in the absence of interrogation but, rather, whether the defendant's will was overborne at the time of the confession. House, 141 Ill. 2d at 376; Terrell, 132 Ill. 2d at 198.

The issue of whether a confession was voluntary is a matter for the trial court alone to decide, and the trial judge's ruling will not be disturbed on review unless it is contrary to the manifest weight of the evidence. ( People v. Ramey (1992), 152 Ill. 2d 41, 57, 178 Ill. Dec. 19, 604 N.E.2d 275; House, 141 Ill. 2d at 376.) The trial court here held an extensive evidentiary hearing on the defendant's motion to suppress, at which the defendant and numerous law enforcement officers testified. After hearing all the evidence, the trial judge ruled that the defendant's statements were voluntary and admissible. We conclude that the trial judge's ruling was not against the manifest weight of the evidence.

The following testimony pertaining to the circumstances surrounding the defendant's confessions was presented at the suppression hearing. The defendant was arrested by Park Forest police at approximately 10:30 p.m. on September 20, 1990, after he was observed in a stolen vehicle. Upon his arrest, the defendant gave Park Forest police a fictitious name, and told them that he was 15 years old, when in fact he was 20 years old at that time. The defendant was kept overnight in a cell while his fingerprints were sent for verification of his identity. According to the Park Forest police officers, the defendant was housed alone in the cell because he was believed to be a juvenile. It was subsequently discovered that a warrant for the defendant's arrest was outstanding in Chicago, and the Chicago police were notified. Chicago police officers took custody of the defendant early the next morning. It is undisputed that, while he was in the custody of Park Forest police, the defendant underwent no police questioning. Rather, the defendant spent the night sleeping in his cell.

Upon his transfer to Chicago police custody, the defendant was taken to Area One Police Headquarters, where he was questioned by two detectives and one assistant State's Attorney in connection with an armed robbery case. The defendant testified at the suppression hearing that while he was at Area One, he called his mother and asked her to obtain an attorney for him, and that he told his interrogators that he wanted his attorney present. Each of the two detectives and the assistant State's Attorney who questioned the defendant at Area One testified that the defendant never asked for a lawyer or asked to wait for a lawyer, although he was advised of his Miranda rights prior to questioning.

The defendant was transported to Area Three Police Headquarters late in the morning on September 21, 1990. At Area Three, the defendant was questioned by Detectives John O'Brien, John Paladino and Tony Maslanka, regarding both the Sims and the Boelter murders. Prior to making his inculpatory statement, the defendant was interrogated twice by the detectives. The first interrogation began at approximately 5:30 p.m. and lasted about 15 minutes. The second interrogation began at approximately 6:30 p.m. and lasted about 30 to 45 minutes. The defendant was advised of his Miranda rights prior to each interrogation. It was during the second interrogation that the defendant made his first inculpatory statement regarding the Sims murder.

The defendant testified at the suppression hearing that he told the detectives at Area Three that he was waiting for a lawyer. All three of the detectives testified that the defendant never stated that he was waiting for a lawyer. The defendant also testified that the detectives at Area Three threatened him that he would receive the death penalty if he did not cooperate, and that two detectives struck him repeatedly on the chest, hands and legs until he agreed to make a statement. Detectives Paladino, O'Brien and Maslanka each testified that they did not threaten or coerce the defendant in any way, and that they never struck the defendant, nor did they observe anyone else strike the defendant.

After the second interrogation, the defendant appeared in a lineup, which was viewed by Officers Williamson and Trlak. The defendant was permitted to use the bathroom after the lineup, and, a while later, food and soft drinks were provided to the defendant. After the lineup, Detective Paladino had another conversation with the defendant regarding the Sims murder, at which Assistant State's Attorney David Studenroth was present. The defendant was again advised of his Miranda rights. Assistant State's Attorney Studenroth testified that he asked the defendant how the police had treated him and that the defendant responded that he had been treated fine and that no one had struck or threatened him. Following this ...


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