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March 5, 1997


Appeal from Circuit Court of Vermilion County. No. 94CF191. Honorable Thomas J. Fahey, Judge Presiding.

As Corrected March 24, 1997. As Corrected May 7, 1997.

Honorable James A. Knecht, J., Honorable Robert J. Steigmann, P.j. - Concur, Honorable John T. McCullough, J. - Concur. Justice Knecht delivered the opinion of the court. Steigmann, P.j., and McCULLOUGH, J., concur.

The opinion of the court was delivered by: Knecht

JUSTICE KNECHT delivered the opinion of the court:

Following a jury trial in March 1995, defendant Marquis Robinson was found guilty of attempt (armed robbery) (720 ILCS 5/8-4, 18-2 (West 1994)); he was acquitted of first degree murder (720 ILCS 5/9-1 (West 1994)). In July 1995, he was sentenced to 15 years' imprisonment. He now appeals, arguing (1) the trial court erred in refusing to suppress his confession; (2) he was not proven guilty beyond a reasonable doubt; (3) he was denied a fair trial by the prosecutor's comments in closing argument; and (4) the trial court erred in considering the death of the victim at sentencing. We affirm.

The evidence of defendant's guilt at trial consisted primarily of his confession, which he now contends was coerced. Specifically, he claims he would not have made the statement but for the State's offer of leniency toward his girlfriend, Deanetra Brigham. Brigham was arrested at the same time as defendant, and the police believed she was either involved in the crime or had purposefully refused to disclose knowledge of the crime. When the investigating officer, Officer Keith Garrett of the Danville city police, informed defendant Brigham was being held and why, defendant suggested Garrett was just "fucking with her" and proclaimed Brigham's lack of knowledge or involvement in the whole affair. Defendant then indicated to Garrett he would agree to make a statement if Brigham was released. Garrett left the room and brought Brigham up from the booking area. She was allowed to enter the room where defendant was sitting and she was then released. Defendant then confessed his involvement in the crime.

To be admissible, a confession must be given voluntarily. People v. Oaks, 169 Ill. 2d 409, 446, 662 N.E.2d 1328, 1344, 215 Ill. Dec. 188 (1996). "The test of voluntariness is whether the statement was made freely, voluntarily and without compulsion or inducement of any sort, or whether the defendant's will was overcome at the time he confessed." People v. Clark, 114 Ill. 2d 450, 457, 501 N.E.2d 123, 126, 103 Ill. Dec. 102 (1986). The voluntariness of a confession is judged by the totality of the circumstances surrounding its making. People v. Melock, 149 Ill. 2d 423, 447, 599 N.E.2d 941, 951, 174 Ill. Dec. 857 (1992); People v. McDaniel, 249 Ill. App. 3d 621, 634, 619 N.E.2d 214, 225, 188 Ill. Dec. 850 (1993), aff'd, 164 Ill. 2d 173, 647 N.E.2d 266, 207 Ill. Dec. 304 (1995). Factors affecting the voluntariness of a confession include the age, education and intelligence of the accused, the duration of the questioning, and whether he received his constitutional rights or was subjected to any physical punishment. Oaks, 169 Ill. 2d at 446-47, 662 N.E.2d at 1344; Melock, 149 Ill. 2d at 447, 599 N.E.2d at 951. No one factor is dispositive. Oaks, 169 Ill. 2d at 447, 662 N.E.2d at 1344; Melock, 149 Ill. 2d at 447, 599 N.E.2d at 951.

While offers of leniency are also a factor to be considered ( People v. Ruegger, 32 Ill. App. 3d 765, 769, 336 N.E.2d 50, 53 (1975); People v. Shaw, 180 Ill. App. 3d 1091, 1094, 536 N.E.2d 849, 851, 129 Ill. Dec. 799 (1989)), a confession is not rendered involuntary simply because such an offer has been made. See People v. Anderson, 225 Ill. App. 3d 636, 641, 587 N.E.2d 1050, 1055, 167 Ill. Dec. 435 (1992); People v. Veal, 149 Ill. App. 3d 619, 624, 500 N.E.2d 1014, 1018, 102 Ill. Dec. 913 (1986); People v. Wright, 127 Ill. App. 3d 747, 751, 469 N.E.2d 351, 354, 82 Ill. Dec. 817 (1984); People v. Noe, 86 Ill. App. 3d 762, 766, 408 N.E.2d 483, 486, 42 Ill. Dec. 105 (1980); People v. Baine, 82 Ill. App. 3d 604, 610, 403 N.E.2d 57, 61, 38 Ill. Dec. 42 (1980).

When it is the defendant himself who begins bartering for leniency in exchange for a statement, a claim of coercion becomes far less credible. See Wright, 127 Ill. App. 3d at 751, 469 N.E.2d at 353-54. In Wright, the defendant, charged with murder, asked a detective whether his codefendant, D.C. Clark, was in custody. Upon learning he was, the defendant told the detective he would be willing to give a statement in exchange for a promise by the State not to seek the death penalty against him. When the State later agreed not to seek the death penalty, the defendant confessed to the murder. The trial court, finding "these so-called inducements were actually conditions originated and tendered by the defendant in return for which he was willing to give a truthful statement," concluded the defendant's confession was entirely voluntary, and the appellate court in Wright affirmed. Wright, 127 Ill. App. 3d at 752, 469 N.E.2d at 354.

Applying these principles to the present case, the trial court's finding of voluntariness is not against the manifest weight of the evidence. See Oaks, 169 Ill. 2d at 447, 662 N.E.2d at 1344 (standard of review is whether finding of voluntariness is contrary to the manifest weight of the evidence). All the evidence at trial established it was defendant who first expressed a willingness to make a statement, and it was he who set the conditions upon which such a statement would be made. Defendant does not contest the evidence on this point, specifically acknowledging in his brief "there is no dispute that the defendant indicated to Officer Garrett that if his girlfriend was not charged then he would talk to them." Garrett testified he released Brigham only after defendant made the above statement. Defendant initiated and controlled the bargaining here, so the cases upon which he relies, Ruegger and Shaw, are distinguishable.

Not only was it conclusively established no improper offer of leniency was made in exchange for defendant's confession, there are no other factors indicative of involuntariness which weigh in defendant's favor. Defendant admits as much in his argument, acknowledging "many of the [other] factors indicating involuntariness are not present" in this case. Defendant was adequately informed of his rights prior to waiving them. The questioning was brief, lasting just a little over one hour, and there was no evidence of physical coercion.

Defendant next contends he was not proved guilty of attempt (armed robbery) beyond a reasonable doubt. He argues there was little evidence introduced against him, other than his confession, which established his guilt. The State seems to agree with this assessment of the evidence but argues such evidence was sufficient to find defendant guilty beyond a reasonable doubt. The testimony at trial revealed the following.

Garrett testified to the substance of defendant's confession. According to defendant's confession, the following events transpired on April 23, 1994. Defendant, Izell Pittman, Cortez Brown, Quonie and George Barney, and Spurgeon Barber decided to go to Contrel Grigsby's apartment in Danville and rob Grigsby, who they believed was a drug dealer. Pittman and Brown went in one car, while defendant, the Barneys, and Barber went in another. Pittman was to enter first and determine if there were drugs and money inside. Pittman went inside, and defendant and the others were allowed entrance shortly thereafter.

Once inside, defendant grabbed Grigsby, shoved him backward, and struck him with the gun. He demanded Grigsby give him the "stuff" and then went through his pockets. Finding nothing, he next went upstairs and began rummaging around. After hearing a gunshot, he ran downstairs and out to the car with the Barneys ...

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