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11/26/97 PEOPLE STATE ILLINOIS v. DONELL AUSTIN

November 26, 1997

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,
v.
DONELL AUSTIN, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Cook County. The Honorable Daniel M. Locallo, Judge Presiding.

Released for Publication January 22, 1998.

Presiding Justice Greiman delivered the opinion of the court. Theis, J., concurs. Quinn, J., specially concurs.

The opinion of the court was delivered by: Greiman

PRESIDING JUSTICE GREIMAN delivered the opinion of the court:

Following a bench trial, defendant was convicted of first degree murder, armed robbery, and conspiracy to commit first degree murder. Defendant now challenges those convictions, raising three issues: (1) whether the trial court erred in refusing to suppress his confession by reason of its attenuation subsequent to defendant's unlawful arrest; (2) whether the evidence supports the convictions; and (3) whether the trial court erred in imposing consecutive sentences.

For the reasons that follow, we hold that the trial court erred in refusing to suppress defendant's confession. We reverse the conviction and remand for a new trial.

On November 16, 1992, Rufus Simpson was found murdered. He had been shot in the back of the head twice. Simpson's vehicle and some other property were missing from his home. More than two months later, on January 23, 1993, police recovered the remains of the burned-out vehicle near the residence of Bobby Walley. Detective Michael Flemming reviewed telephone records, which indicated that phone calls had been made between Eric Watkins' residence (stepson of the victim), the victim's residence, and Bobby Walley's residence. On January 27, 1993, Fleming and another officer observed defendant, Jamal Dorrough, Kevin Taylor, and Bobby Walley leave Walley's residence. At approximately 2:30 p.m., the officers brought the four men to the police station and placed them in separate interview rooms.

At 3:30 p.m., Fleming spoke with Taylor. Taylor denied any knowledge of the homicide. At 3:45 p.m., Fleming spoke with Dorrough after advising him of his Miranda rights. Dorrough made no admissions. At 4 p.m., Fleming spoke with Walley after administering the Miranda admonition. This conversation lasted approximately 15 minutes, during which time Walley made no admissions. At 4:15 p.m., Fleming spoke with defendant after reading defendant his rights against self-incrimination. That conversation also lasted approximately 15 minutes; defendant made no admissions.

At 4:30 p.m., Fleming had a second conversation with Taylor, who admitted knowledge of the homicide, stating that he had a conversation with Dorrough a week after the homicide in which Dorrough stated that the victim was dead and that "they" had done it, meaning defendant, Dorrough, Walley, and Eric Watkins. Taylor also stated that he had a conversation with Watkins wherein Watkins told him that they had done the killing. Taylor acknowledged that he was at Walley's residence prior to the murder and heard a conversation in which Watkins stated that he wanted his stepfather killed.

At 5 p.m. Fleming had a second conversation with Dorrough and confronted him with Taylor's statements. Dorrough stated that he was part of the conversation in which Watkins indicated that he wanted to have his stepfather killed and further admitted being present when Simpson was killed. He identified defendant as the shooter and described how it was accomplished. He admitted taking property from the residence.

At 5:30 p.m. Fleming spoke with Walley again, confronting him with the statements from Taylor and Dorrough. Walley then confessed his involvement with the homicide.

At 6 p.m. Fleming spoke with defendant again. He told defendant of the other conversations. Defendant did not make a statement regarding his involvement.

Between 6:30 p.m. and 7:30 p.m., Fleming had further communication with Dorrough and Walley, learning additional facts. At 7:30 p.m. Fleming had a third conversation with defendant, confronting him with the additional facts. Defendant at first conceded that he was at the victim's house at the time of the shooting and admitted taking property. He then admitted he did the shooting.

Defendant, Jamal Dorrough, Bobby Walley, and Eric Watkins were all charged with the murder. No charges were brought against Taylor. Defendant and Walley moved to quash their arrests and suppress their confessions. Those motions were heard on September 7, 1994, and September 26, 1994, with the motions to quash sustained and their confessions suppressed. Thereafter, the State requested an attenuation hearing and the matter was heard on October 20, 1994.

On April 19, 1995, Dorrough filed a motion to quash and suppress evidence. On August 8, 1995, Dorrough's motion to quash was sustained. Again, the State requested an attenuation hearing. The parties stipulated to the testimony given on September 7 and 26, and October 20, 1994, for ...


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