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11/20/97 PEOPLE STATE ILLINOIS v. DARRYL CANNON

November 20, 1997

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,
v.
DARRYL CANNON, DEFENDANT-APPELLANT.



APPEAL FROM THE CIRCUIT COURT OF COOK COUNTY. HONORABLE JOHN E. MORRISSEY, JUDGE PRESIDING.

Rehearing Denied December 24, 1997. Released for Publication January 22, 1998.As Corrected November 20, 1997.

Presiding Justice Wolfson delivered the opinion of the court. Cerda and Burke, JJ., concur.

The opinion of the court was delivered by: Wolfson

PRESIDING JUSTICE WOLFSON delivered the opinion of the court:

In this murder case Darryl Cannon is asking for the opportunity to prove his confession was the product of torture by police officers from Area 2 Headquarters in Chicago.

Cannon was tried in 1984 for his involvement in the October 26, 1983, murder of Darren Ross. He had moved to suppress his confession, but the motion was denied. On appeal from that conviction the denial of Cannon's motion to suppress was affirmed, but his case was remanded to the trial court for a hearing on the prosecutor's use of peremptory challenges to exclude black jurors. See People v. Cannon, 150 Ill. App. 3d 1009, 502 N.E.2d 345, 104 Ill. Dec. 82 (1986).

After holding a Batson hearing, the trial court ordered a new trial. Again, Cannon moved to suppress his confession. Among other things, he said he could prove other suspects had been tortured by Area 2 police officers to obtain confessions. Two trial court judges refused to revisit the question of whether Cannon's confession was voluntarily made.

On retrial in 1994, Cannon again was found guilty of murder.

He was sentenced to natural life in prison. He raises several issues in this appeal, but we decide only one at this time: he should have been given a second opportunity to suppress his confession. For that reason, we vacate the defendant's conviction and sentence, and we remand this cause to the trial court for a new hearing on the voluntariness of Cannon's confession.

BACKGROUND

For an understanding of how we have reached this point, we step back 14 years, to October 26, 1983. At about 1 p.m. Darren Ross and Kenneth Steele, two drug dealers, encountered Tyrone and A.D. McChristian at the corner of 79th Street and Essex Avenue in Chicago. According to Steele, Tyrone approached Ross and whispered something in his ear. Then A.D. drove off in his blue and white 1975 Buick. Ross walked away, leaving Steele behind.

Later that day, at about 3:45 p.m., Ross's body was found near the Altgeld Gardens housing project. Ross had been shot in the head and his body dumped in an isolated grassy area behind the housing project.

In the course of the investigation of Ross' murder, the police spoke with Steele, who told the police about the encounter with the McChristians. Later, the police found a 1975 Buick, which was registered to an alias known to be used by A.D. McChristian. The car had bloodstains that matched Ross' blood type.

A few days later the police located Tyrone McChristian, who implicated Cannon. The police obtained a warrant for Cannon's arrest. Cannon was arrested at his home at about 7 a.m. on November 2, 1983. After his arrest, Cannon made statements admitting that he had been driving McChristian's car when A.D. McChristian shot Ross.

In a pretrial motion before his first trial, Cannon moved to suppress his post-arrest statements and admissions to police, claiming that his statements had been the product of police torture. Cannon claimed that one of the arresting police officers placed a shotgun in his mouth while asking him questions. When Cannon refused to answer, the officer pulled the trigger. Though the gun was unloaded, the officer showed Cannon that he had shotgun shells in his hand and repeatedly made motions as if he were loading the gun. Cannon also claimed one of the officers struck him in the knee with a flashlight and another officer applied an electric cattle prod to his exposed genitalia. See Cannon, 150 Ill. App. 3d at 1014.

A suppression hearing was held before the first trial, which was presided over by Judge Thomas Maloney. The motion to suppress was denied based on the trial judge's finding that the State's evidence (the police officers' denials) outweighed Cannon's uncorroborated claims of torture. It was noted that Cannon had never complained to anyone at the police station about the torture and there was no physical evidence of injury. Judge Maloney also noted that Cannon was not credible because Cannon testified that the cattle prod had been in the police car's glove compartment and the judge did not believe that cattle prods were small enough to fit into the glove compartment of a car.

Cannon went to trial on April 6, 1984. He was found guilty of murder. In an appeal from that judgment, the trial court's decision to deny the motion to suppress was upheld. The case was remanded, however, for a Batson hearing. Later, based on the trial court's finding that a Batson violation had occurred, a new trial was ordered.

In a pretrial motion before the second trial, Cannon asked that his motion to suppress be reconsidered in light of "new evidence" to support his claim that his admissions had been coerced. This "new evidence" included: (1) a police log indicating that Cannon's arresting officers signed out a shotgun on the day of his arrest, proving that these police officers perjured themselves at the suppression hearing when they denied they had a shotgun in their possession at the time of Cannon's arrest; (2) testimony by Sgt. Byrne and Detective Dignan at a 1987 deposition in a related civil action; (3) photos taken by the Office of Professional Standards (OPS) of a site where Cannon claimed he had been tortured; (4) testimony of approximately 16 arrestees who filed charges with OPS claiming they had been tortured by some of the same police officers at Area 2; and (5) evidence that cattle prods small enough to fit in the glove compartment of a car existed in 1983. None of this evidence, he said, was available at his first trial.

The request for a new suppression hearing was heard first by Judge Mannion. After Judge Mannion denied the request, he granted the defense motion for his recusal. He had been a detective at Area 2. The case was transferred to Judge Morrissey and a new suppression motion was filed. Judge Morrissey heard argument on the motion, but refused to hold a new suppression ...


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