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03/31/97 PEOPLE STATE ILLINOIS v. FABIAN PICO

March 31, 1997

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,
v.
FABIAN PICO, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Cook County. The Honorable Ronald A. Himel, Judge Presiding.

Released for Publication May 12, 1997.

Justice Leavitt delivered the opinion of the Court. Gordon, J., and Cahill, J., concur.

The opinion of the court was delivered by: Leavitt

Justice Leavitt delivered the opinion of the Court:

Following a bench trial, the defendant, Fabian Pico, was found guilty of first degree murder on an accountability theory. The trial judge sentenced him to 35 years imprisonment. The defendant, who was 16 years old at the time of the offense, contends that the trial judge should have suppressed his confession because the police failed to make a reasonable attempt to notify his parents, as required by section 5-6(2) of the Juvenile Court Act of 1987 (the Act). 705 ILCS 405/5-6(2) (West 1994).

On May 30, 1994, John Smith and his brothers, Lawrence and Charles, returned from a fishing trip. During the late evening, they were sitting with their friend, Joe White, on the porch in front of White's house located at 3237 62nd Street in Chicago. At around 11 p.m., John noticed some members of the "2-6" street gang nearby. One of the gang members, Cricket, who was riding a bicycle, approached the group and was talking with them. Lawrence bet Cricket that he could "catch him on his bike." John watched as Lawrence chased Cricket down the street. Shortly thereafter, shots rang out, and Lawrence came running back. John began running west on 62nd Street, and a man firing a gun chased him. John ran through a gangway toward a fence and climbed it. As he did, he turned his head and saw that the gunman, who had a bandana covering his face, was directly behind him with the gun pointing at his back. John dropped to the ground, apparently on the other side of the fence, and escaped. John then returned to the front of White's house, where he found his brother, Charles, laying dead on the ground.

Lawrence Smith testified to the same effect. He had been sitting at Joe White's house with his brothers, John and Chuck, as well as White. They were drinking beer, when all of a sudden, Lawrence heard gunshots, and "some guy" came running from across the street firing a gun. The gunman had a bandana over his face. As the gunman approached, Lawrence dropped to the ground and told the assailant "I am not in a gang." The gunman looked at Lawrence, then turned and headed down a gangway, shooting as he left. After the shooting was over, the gunman came running back and crossed the street, where another person was waiting for him. The two then fled. Lawrence got up off the ground and saw Chuck walking out of the gangway by White's house. Chuck told Lawrence that he had been shot. Chuck fell to the ground, face-down. Lawrence approached him, turned him over and saw a bullet hole in his chest.

On May 31, 1994, Dr. Lawrence Coga examined the body of Charles Smith. His stipulated testimony included these findings: Charles Smith suffered a "single penetrating gunshot wound to the chest. No exit wound was identified. That a copper coated bullet was recovered from the left lower back. *** The gunshot wound to the chest, which lacerated the skin, aorta, diafram (sic), spleen and kidney, was the cause of death."

The State and the defendant also stipulated to the testimony of Detective Kenneth Boudreau of the Chicago Police Department. His testimony had been admitted previously during a hearing on the defendant's motion to suppress his confession. Boudreau testified that on September 10, 1994, he was assigned to Area One Violent Crimes. On that day, he met with the defendant, who at the time had been brought in as a witness who might have information about the death of Charles Smith.

That evening, Detective Boudreau and his partner spoke with the defendant twice. They did not advise him of his Miranda rights before the first conversation. Before that discussion, the defendant had informed the police that he was a witness to the shooting. During the questioning, however, it became apparent to Detective Boudreau that the defendant "was culpable, at which time we terminated our interview."

After terminating the interview, Detective Boudreau attempted to telephone the defendant's mother. The defendant supplied the telephone number. Boudreau's effort was unsuccessful. Boudreau acknowledged that the report he filed failed to indicate that he attempted to notify the defendant's parents that the defendant was in custody. In any event, before resuming his questioning, Boudreau summoned a youth officer. When the youth officer arrived, about an hour and forty-five minutes later, Boudreau read the defendant his Miranda rights. Questioning resumed at this point.

Assistant State's Attorney Kathy Dietz testified that she was also summoned to Area One on September 10, 1994. She arrived there at 11:15 p.m. When she arrived, she spoke with Detective Boudreau and his partner, Detective Halloran. At that time she learned the identity of the defendant and that he was in custody. She met the defendant at 11:45 p.m. and immediately advised him of his Miranda rights. She also read him his rights as a juvenile--that he had the right to have a parent or youth officer present during questioning and that depending on the charge, he could be tried as an adult. The defendant agreed to speak with Dietz. Juvenile Officer Hall was also present. They spoke for a total of forty-five minutes during the next few hours. The defendant was not handcuffed during the interviews.

At approximately 3 a.m., Dietz transcribed the defendant's statement. Dietz identified the defendant in court as the person whose statement she transcribed. After she finished writing the statement, the defendant reviewed, corrected and signed it. The substance of the defendant's statement was as follows.

The defendant had been a member of the Ambrose street gang for three to four years. On May 30th, 1994, he was with Ricky, another Ambrose street gang member. The two were at 62nd and St. Louis when they were "jumped" by a group of 2-6ers. The Ambrose street gang and the 2-6 street gang are rivals. The defendant and Ricky decided to seek retaliation, and he stated that they were going to jump the 2-6ers who jumped them earlier if ...


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