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10/11/96 LASHUN H. v. LASHUN H.

October 11, 1996


Appeal from the Circuit Court of Cook County. Honorable Maureen Durkin Roy, Judge Presiding.

Presiding Justice McNULTY delivered the opinion of the court: Hourihane, J., concurs. Cousins, J., dissents.

The opinion of the court was delivered by: Mcnulty

PRESIDING JUSTICE McNULTY delivered the opinion of the court:

Respondent Lashun H. was adjudicated delinquent for first-degree murder and committed to the Department of Corrections. Respondent claims on appeal that the trial court erred in: (1) finding that respondent's confession was voluntarily given; (2) holding that respondent had knowingly and intelligently waived his privilege against self-incrimination; (3) curtailing his cross-examination of witnesses during the suppression hearing; (4) adjudicating first-degree murder when respondent had a valid claim for self-defense; and (5) adjudicating first-degree murder when respondent held an unreasonable belief that the use of force in self-defense was justified. We reverse and remand.

On March 12, 1994, the decedent, Antoine Brown, was playing with a group of about 20 boys at 5119 West Adams in Chicago. Respondent, Ralph Anderson and two other boys approached decedent and the other boys. A confrontation ensued in which the decedent was killed by a gunshot wound in the back. Respondent and Anderson were arrested, charged and tried for the shooting. Respondent was 14 years old at the time of the incident.

Before the adjudicatory hearing, respondent sought to suppress a statement given by him to police the day after the shooting. In the suppression hearing, Officer Luis Bergos testified that he went to respondent's home on the day of the shooting and asked respondent's mother, Brenda, about respondent's whereabouts. Officer Bergos left a number where he could be reached. Brenda later testified that Officer Bergos told her that the police would shoot respondent if they found him with his hands in his pockets, but Officer Bergos denied making that statement.

Officer Mike Walter testified that Brenda called him and told him that her son was at the house of Calvin Hudson, his uncle. Officer Walter drove to Brenda's home and she accompanied him to Hudson's home. According to Officer Walter, respondent was awake and in the dining room when they arrived. Officer Walter informed respondent of his Miranda rights, asked respondent whether he understood each of his rights and asked respondent if he wished to talk to the police. Respondent indicated that he understood his rights and would cooperate with the police. Officer Walter found respondent to be coherent. Officer Walter asked respondent where the gun used in the shooting was and respondent said that he gave it to his friend Terrell Wyatt so that Wyatt could hide it. Officer Walter then took respondent and his mother to Terrell Wyatt's house. Terrell was not home, but his mother knew where he might be. Terrell's mother led them to a house a block away, where they recovered the gun. Officer Walter and other officers then took respondent and his mother to the 15th District police station. Officer Walter was then asked by Detective Dolan to bring all witnesses to the incident to Area Five police headquarters.

When they arrived at Area Five, the officers took respondent upstairs and asked Brenda to wait downstairs. Officer Walter testified that respondent's mother did not ask to go upstairs and respondent did not ask to have his mother come upstairs.

Respondent's uncle, Calvin Hudson, testified that respondent fell asleep at his house on the night of the shooting. Hudson testified that police came to his house with their guns drawn and went to the bedroom to wake respondent. The officers then picked respondent up, searched him, took him into the dining room and handcuffed him. The officers asked respondent about a shooting and a gun and then put him in a squad car. Hudson went with respondent in a police car to the 15th District police station, while Brenda went to the station in a different police car. Hudson testified that one of the officers in the car said something like, "You should not have shot this boy," and respondent stated that he did not shoot the boy. Hudson also heard an officer say they recovered a gun. At the 15th District police station, Brenda asked the officers when she could see respondent. An officer told Brenda she could see her son in 5 or 10 minutes, but for the entire time they remained at the 15th District station, she was not allowed to see her son.

Police officers then drove respondent, Hudson and Brenda in the back seat of a squad car to the Area Five police station. When they arrived at the Area Five police station, respondent was taken upstairs and Hudson and Brenda were told to wait in a waiting room. Hudson remained at the station until 4 a.m., during which time Brenda asked two or three times whether she could see respondent, but was refused.

Respondent's mother, Brenda Henry, testified that on the day of the shooting, Officer Bergos came to her house looking for respondent and informed her that if the officers "caught [respondent] with his hands in his pocket[s] they were going to shoot him." When Brenda learned that respondent was at Calvin Hudson's house, she informed the police and the police came to her house and took her to Hudson's house. Four officers entered Hudson's house with their guns drawn, went to the bedroom, woke respondent up, took him to the dining room, handcuffed him and asked him where the gun was. The police denied that they awakened respondent. Shortly before midnight, the police drove her in one car and respondent in another to Terrell Wyatt's house, where they recovered a gun. The police then took them to the Chicago Avenue police station and put Brenda in a waiting room. Although Brenda asked to see respondent, she did not see him until 3 a.m. when the officers drove her and Calvin Hudson in a police car with respondent to the Area Five police station. Upon arrival at the station, respondent and Brenda were separated. Brenda asked five times whether she could see respondent, but was refused. At one point, she went upstairs in an attempt to see respondent, but was sent back downstairs. When she finally saw respondent sometime after 6 a.m., he had his head down and tears in his eyes. Respondent told her that he was not the shooter.

Youth Officer Pulius testified that he was assigned to assist respondent in his questioning by Detective Dolan. Officer Pulius met with respondent at the Area Five station and gave him his Miranda warnings and explained to respondent that he was there to protect his rights. Officer Pulius asked respondent whether he understood his rights, and respondent stated that he did. Officer Pulius then warned respondent that he could be tried as an adult and asked if he understood the gravity of the situation, and respondent indicated that he did. Respondent then agreed to speak to Officer Pulius and Detective Dolan. Officer Pulius testified that respondent declined food on two occasions and respondent received a drink and went to the washroom. Respondent was a little nervous but was coherent and answered the detective's questions intelligently. Respondent never asked to speak to his parents or an attorney. Officer Pulius testified that he asked one of the detectives whether respondent's parents had been contacted and was told that respondent's parents had been notified, but were not at the station. Officer Pulius never informed respondent that his mother could be with him during the interview nor did he ask respondent whether he wanted his parents there. Officer Pulius admitted that the police guidelines state that a parent, relative or friend should be present whenever a minor is interviewed.

Detective John Dolan testified that he interviewed respondent at Area Five headquarters. Detective Dolan had two conversations with respondent. Officer Pulius was present during both conversations. Although Detective Dolan knew that respondent's mother was at the station and had requested to be present during the questioning of her son, Detective Dolan would not permit her to be present during his questioning of respondent. Detective Dolan never informed respondent that his mother could be present during the questioning. The first round of questioning began at 3:30 a.m. and lasted for about 15 minutes. Respondent claimed that Ralph Anderson was the shooter and that Anderson handed the gun to him. Detective Dolan then interviewed other witnesses for two hours. When Dolan returned to respondent at 5:45 a.m., respondent appeared to be sleeping. However, according to Detective Dolan, respondent appeared coherent, alert and responsive. Detective Dolan told respondent that witnesses had implicated him as the shooter. However, Detective Dolan did not tell him that other witnesses had implicated Anderson as the shooter. Detective Dolan told respondent that one of the witnesses had said respondent had a knife and respondent admitted that he had a knife in his possession. Shortly before 6:15 a.m., respondent made an incriminating statement. Respondent stated that he and several friends were surrounded by a larger group, one of whom hit one of his friends. Another individual took a swing at respondent and missed, at which time respondent fired a gun, which he had up the right sleeve of his jacket. Respondent's statement was never reduced to writing or signed, nor was it taken in the presence of an assistant State's Attorney.

School psychologist Irvine Hassman testified that respondent's reading and spelling levels were those of a seven-year-old and his math comprehension was that of a 12-year-old. Respondent met with a learning disability specialist for 40 minutes each school day. Hassman testified that he could not determine whether respondent could understand Miranda warnings. Hassman read from a report of respondent's language therapist, who wrote that respondent's receptive and expressive language as relating to understanding words was somewhat limited, but his ability to communicate on an everyday basis with teachers and students was within normal limits for his age. Respondent received Ds and Fs in school, but Hassman stated that could have resulted from respondent choosing not to complete his work. Respondent had not taken an I.Q. test, which would have given a clearer picture of respondent's cognitive skills.

The trial court denied respondent's motion to suppress his statement, holding that under the totality of the circumstances, respondent's will was not overborne. The court also determined that Hassman's testimony did not support a finding that respondent did not understand his Miranda rights.

At the adjudicatory hearing, the State introduced respondent's statement into evidence. The State also presented witnesses to testify that they saw respondent shoot the victim and heard respondent claim that he had shot someone. Respondent attempted to impeach the State's witnesses and presented evidence to implicate Anderson as the shooter. The court acquitted Anderson and entered a finding of delinquency on respondent and sentenced him to the Department of Corrections.

Respondent first claims on appeal that the trial court erred in finding his confession voluntary and denying his motion to suppress his confession. The receiving of an incriminating statement made by a juvenile in the absence of counsel is a sensitive concern requiring great care to assure that the juvenile's confession was neither coerced or suggested, nor a product of fright or despair. People v. Prude, 66 Ill. 2d 470, 363 N.E.2d 371, 6 Ill. Dec. 689 (1977). The test is whether, under the totality of the circumstances, the statement was made freely, without compulsion or inducement, with consideration given to the characteristics of the accused as well as the details of the interrogation. People v. Prim, 53 Ill. 2d 62, 289 N.E.2d 601 (1972). Relevant factors in determining whether a confession was voluntary under the totality of the circumstances include the age, intelligence, experience and physical condition of the accused, the length and intensity of the interrogation, and the existence of any threats, promises, or physical coercion. People v. Martin, 102 Ill. 2d 412, 466 N.E.2d 228, 80 Ill. Dec. 776 (1984). When a juvenile is involved, additional factors come into play, such as the time of day and the presence of a parent or other adult interested in the juvenile's ...

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