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June 28, 1996


Appeal from the Circuit Court of Cook County. Honorable Michael Bolan, Judge Presiding.

Released for Publication August 13, 1996.

Presiding Justice Hartman delivered the opinion of the court: Scariano and DiVITO, JJ., concur.

The opinion of the court was delivered by: Hartman

PRESIDING JUSTICE HARTMAN delivered the opinion of the court:

On February 28, 1992, Chicago Fireman Woody Woods was shot and killed as he sat in his truck parked at an outdoor bank automated teller machine. Defendant, Ellis Patterson, was indicted for Woods' murder in the first-degree. Following a jury trial, defendant was convicted and sentenced to 40 years in prison. He appeals, raising as issues for review whether (1) the circuit court erred in denying his motion to quash arrest and suppress statements; (2) his conviction was based upon inadmissible hearsay; (3) the State improperly cross-examined a witness regarding an inculpatory statement without providing notice during discovery of the statement's existence; (4) the State failed to perfect impeachment on a non-collateral matter; and (5) the State improperly used defendant's silence following arrest against him in violation of Doyle v. Ohio, 426 U.S. 610, 49 L. Ed. 2d 91, 96 S. Ct. 2240 (1976). For reasons which follow, we affirm.

Defendant filed a motion to quash arrest. At the hearing on the motion, defendant testified that on October 15, 1992, he was 15 years old, a sophomore at Corliss High School, and lived with his aunt, Gloria Jackson, at 121st and South Michigan. He was in school when Chicago police officers handcuffed him and took him to a police station, where he was handcuffed to a bench. The police officers did not inform him they had a warrant for his arrest. He did not talk to any adult family members at the police station. On cross-examination, defendant acknowledged he was wearing a beeper in violation of law and that he had been arrested previously in school for wearing a beeper. See Ill. Rev. Stat. 1989, ch. 122, par. 10-21.10 (now 105 ILCS 5/10-21.10 (West 1994)).

Chicago Police Detective Anthony Lowery testified at the quash arrest motion hearing that on October 15, 1992, he went to Corliss High School and arrested defendant believed to have been involved in a homicide at 1000 East 111th Street. He did not have an arrest warrant nor did he know of any outstanding warrants for his arrest. Prior to the arrest, Lowery and his partner met with a confidential informant (later identified as defendant's uncle), who told the detectives of a conversation the informant overheard between defendant and Freddie Jackson, Jr. (later revealed as another of the informant's nephews) in which the two discussed how defendant had shot the victim in the bank parking lot. The two were concerned because the weapon used in the shooting had been recovered subsequently from Jackson, Jr. by the police. The informant told the detectives the approximate ages of the two as well as their addresses.

Detective Lowery possessed other information prior to arrest indicating that the offenders were African-American males who were in their teens or early twenties. Lowery confirmed that Jackson, Jr., an African-American male in his early twenties, recently had been arrested on a gun charge and a weapon had been recovered from him. Lowery verified that the addresses given by the informant were correct and that defendant was an African-American male teenager. Lowery also discovered that defendant and Jackson, Jr. had given the same home address on a previous arrest. The lab results indicated a strong probability that the weapon recovered from Jackson, Jr. was used in the February 28, 1992, shooting; it had the same characteristics as the bullet recovered from the victim. Only two weapons manufacturers in the United States make handguns with the characteristics possessed by the weapon involved here. Lowery could not confirm, however, whether the weapon recovered from Jackson, Jr. was the same one used in the February 28, 1992, shooting.

Defendant's motion to quash the arrest was denied, the circuit court finding that the detectives had corroborated sufficiently the informant's statements. *fn1

At trial, evidence was adduced from which the jury could believe the following information.

On February 28, 1992, at 9:45 p.m. the body of the victim was found in the driver's seat of his red truck, parked at a Heritage Pullman Bank automated teller machine located at 111th Street and the Calumet Expressway. The driver's side window was shattered. An autopsy revealed that the victim died of multiple gunshot wounds, one gunshot wound at the back of his head on the left side and a through and through gunshot wound on the back of his left shoulder. There was no evidence of close range firing.

Chicago Police Detective John McMurray testified that when he arrived at the scene he found the victim seated in the driver's seat with two payroll checks in his left hand. The victim's right hand held a ballpoint pen and was propped up against the vehicle's gear shift, which was in second gear. A cash station card and a deposit envelope also were present. There was blood on the floor of the truck but no shells were found inside the truck. Some glass from the driver's side window was located on the ground next to the truck, indicating that the vehicle had not been moved after the shooting. McMurray found the key in the ignition in the "on" position, the radio in the "on" position, and the headlights "on."

John Woodruff and his girlfriend, Ethel Cook, went to the Heritage Pullman Bank at approximately 9:30 p.m. Woodruff noticed three people inside a blazer or bronco-type vehicle parked in front of him. He drove around the vehicle to an automated teller machine; after three minutes, he left the area. Ethel Cook saw a dark-colored bronco-type vehicle, without lights, parked near the curb at the Heritage Pullman Bank with three men in it. The people in the truck were between 16 and 17 years of age; one was wearing a Starter jacket and another was wearing a baseball cap.

Dorothy Turner went to an automated teller machine at the Heritage Pullman Bank at 9:35 p.m. and noticed two males sitting in a truck parked at the curb. The driver was wearing a baseball cap and turned his back when she drove past. Turner drove around the truck, proceeded to an automated machine and, after transacting her business, left.

Retired Chicago Police Detective Michael O'Connor testified that he and his partner, Detective Lowery, spoke with Charles Jackson, one of defendant's uncles, on October 12, 1992. On October 15, 1992, the detectives looked for defendant at his home address. He was not present and they left their card asking that he call them upon his return. The detectives then went to Corliss High School where they found defendant and placed him under arrest. Lowery read defendant his Miranda rights. They informed him they were investigating the February 28, 1992, shooting at the Heritage Pullman Bank. Defendant then hit his head against the chair and grimaced; he was taken to the police station and placed in an interview room.

Detective O'Connor testified that they were preparing to go to Freddie Jackson, Jr.'s (Jackson, Jr.) home when Freddie Jackson, Sr. (Jackson, Sr.), another of defendant's uncles, telephoned and informed them he was bringing his son to the station. Upon arrival, Jackson, Jr. was taken into an interview room and questioned about the case after being given his Miranda warnings. At 4:00 p.m., Jackson, Sr. again telephoned the station and told the police he was bringing in someone else who would clear up the matter. At 4:30 p.m., Jackson, Sr. brought Bobby Latiker into the station, who was questioned about the homicide in an interview room. After talking to Latiker, O'Connor discussed the shooting with Jackson, Jr. and, thereafter, with defendant.

During this time, defendant was alone in an interview room except for a brief conversation with the detective between 12:00 p.m. and 2:30 p.m. He was not handcuffed and, after 1:00 p.m., the door to the room was left open because defendant complained about it being closed. Defendant was offered food and drink, and was allowed to use the restroom several times. The detectives spoke with defendant at 5:30 p.m. in the presence of Jackson, Sr., following advice of his Miranda rights. After the detective told defendant he had spoken with Latiker and Jackson, Jr., defendant began crying and said, "I didn't mean to kill that man. Shoot me. Shoot me. Kill me. Kill me." This oral statement was not written down by the detectives.

After defendant gave the statement, Jackson, Jr. came into the room to talk to him. Defendant asked to see his aunt, Gloria Jackson (Gloria), who later came to the station. Detective O'Connor then left the room to contact an assistant state's attorney. On cross-examination, O'Connor testified he neither had fingerprint evidence nor physical descriptions of the offenders. No physical evidence had been gathered between March 1, and October 11, 1992.

Assistant State's Attorney (ASA) Stanislaus Gonsalves testified that he had conversations with Latiker, Jackson, Jr. and defendant. Gonsalves advised defendant of his Miranda rights, told him he was an ASA, informed him he did not represent defendant and that, although he was 15 years old, defendant could be tried as an adult. Defendant stated that he understood everything Gonsalves told him. Detectives Lowery and O'Connor, as well as Jackson, Sr. and Dwanda Patterson (Dwanda), defendant's 22 year-old sister, were present.

Defendant agreed to talk. He told ASA Gonsalves that on the night of February 28, 1992, he and Latiker were at Jackson's house, and they left to go to the home of defendant's grandmother. On the way, the vehicle stopped and defendant exited, armed with a handgun he had obtained earlier in the week. Defendant approached a bank, saw a man sitting in a red truck at the cash station, walked toward the driver from the rear with the weapon in his hand and, standing three feet away from the driver, defendant pointed the gun at the man's head and fired once. The driver of the car leaned over. Defendant left the scene. Defendant told Gonsalves that Latiker and Jackson, Jr. did not know what he was going to do, and when he returned to the car, the three boys drove off. Defendant's statement was not then reduced to writing by Gonsalves nor was defendant asked to sign a statement.

ASA Gonsalves left the room to talk to Latiker and Jackson, Jr. in order to resolve some inconsistencies in their statements. After speaking with Latiker and Jackson, Jr., Gonsalves returned to speak with defendant to determine whether he would reduce his statement to writing. When Gonsalves entered the room, Jackson, Sr. and Dwanda informed Gonsalves that defendant did not want to talk and he would not give a written statement.

Gloria, defendant's aunt, testified that two police officers came to her house on October 15, wanting to question defendant about a burglary. At 8:30 p.m., she went to the police station where defendant was being held and there saw her brother, Jackson, Sr., and Dwanda, her niece. She stayed with defendant in an interview room until the police moved him into a lockup at 3:00 a.m.

On cross-examination, Gloria denied having spoken with Detectives O'Connor and Lowery at the police station or having informed them that over the past month defendant seemed troubled. She also denied defendant told her he had shot someone.

Jackson, Sr. testified that he heard his son was being held by the police. He went alone to the police station at 5:00 p.m., waited there until 6:00 p.m. and then departed; returned to the station at 6:45 p.m. and saw his niece, Dwanda, who was there with her boyfriend, Latiker. Jackson, Sr. did not know defendant, his nephew, also was being held at the police station until 8:30 p.m. Jackson, Sr. denied being in an interview room with defendant, two detectives and an assistant state's attorney; he also denied hearing his nephew make any statements to the assistant state's attorney. At 10:00 p.m., ASA Gonsalves told Jackson, Sr. that he was an attorney and he would represent Jackson's son on a burglary charge. Jackson, Sr. denied having telephoned the police station and telling police he would bring in anyone.

Defendant testified. He was arrested on October 15, 1992, and taken to a police station where he was placed in a room. Detectives O'Connor and Lowery were present. They did not talk to each other for twenty minutes. Neither his uncle, Jackson, Sr., nor his sister, Dwanda, were ever present in the room. After an hour, Detective Lowery returned to the room and informed defendant he was being charged with murder. He responded that he did not know what the detective was talking about. This conversation lasted for 35 minutes. After Lowery left the room, defendant's Aunt Gloria entered the room and stayed with him until 3:00 a.m. Defendant could not recall whether ASA Gonsalves ever entered the room. He never gave a statement to anyone that he shot the victim. Defendant denied having told O'Connor that he shot the victim and that he wanted to die.

On cross-examination, defendant stated that Jackson, Jr., his cousin, is Latiker's friend. The detectives did not say much to him; most of the time they sat in silence. He made no statements and denied that anyone ever read his rights to him on the day of his arrest.

On rebuttal, the State called Detective Lowery to impeach Gloria and defendant. Defense counsel objected to the impeachment and the court ruled that the detective could testify as to whether he had a conversation with Gloria but he could not discuss its substance. Lowery testified that he spoke to Gloria on October 15, 1992, at her home and later that day at the police station. He never informed her they were looking for defendant in relation to a burglary investigation. At Corliss High School, neither Lowery nor Detective O'Connor were silent. When they informed him of the nature of their investigation, defendant "reared up in the chair," and then "he pushed himself against the wall, like he was in shock ***."

According to Detective Lowery, Jackson, Sr. telephoned the police and stated he was bringing in his son. The Jacksons arrived at the police station at 11:30 a.m. Later that day, Jackson, Sr. again telephoned and told the police he had some information on the investigation. Jackson, Sr. arrived at 4:00 p.m. with Latiker. At 5:30 p.m., Lowery and Detective O'Connor read defendant his Miranda rights and spoke with him in the presence of his uncle, Jackson, Sr. During their conversation, defendant acknowledged that he had shot the ...

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