Appeal from the Circuit Court of Cook County No. 96--JD--5436 Honorable Richard Walsh, judge Presiding.
The opinion of the court was delivered by: Presiding Justice Cerda
Respondent, 15-year-old A.R., was found delinquent on the basis of two counts of aggravated battery (720 ILCS 5/12-4 (West 1994)) and aggravated discharge of a firearm (720 ILCS 24-1/2(a)(2)(West 1994). He was sentenced to five years' probation. On appeal, respondent asserts that (1) he was not proven guilty beyond a reasonable doubt; and (2) he received ineffective assistance of counsel. For the following reasons, we vacate the conviction and remand this cause for further proceedings.
Javier Perez testified that he went to a gangway at 72nd and Washtenaw Streets, Chicago, to see Cory Ellis, on April 2, 1996. When he arrived, four men, including respondent and Cory Ellis, were present. Five to ten minutes later, while Perez was talking with Ellis, one of the men said something like "what is up," pulled a gun from his pocket, and shot Perez in his side. Respondent was standing next to the shooter. After being shot, Perez fell to the ground, then dragged himself to the front yard, where a passerby helped him. As a result of the gunshot wound, Perez suffered a spinal cord injury, which left him paralyzed.
Cory Ellis testified that respondent's brother, Kenneth Robinson, called him several times on April 2, 1996, to buy marijuana from him. When Ellis went to a house at 72nd and Washtenaw Streets at about 6 p.m. for a pre-arranged meeting with Robinson, Robinson and respondent accompanied Ellis to the backyard. Robinson was looking at the marijuana when Ellis's friend, Perez, walked toward them. Ellis told Robinson to hurry up, but Robinson seemed to be stalling. As Perez walked down the gangway, he told Ellis he would wait for him in the front. At that point, Robinson took a gun from his pocket and shot Perez once. At the time of the shooting, respondent was behind Robinson, watching.
Chicago police detective Roland Paulintsky testified that he investigated the shooting. After going to the hospital where Perez was being treated, Paulintsky went to the scene of the shooting. In the gangway, he saw blood splatters and a shell casing. He then went into the house and spoke with respondent. Respondent's younger brother and stepfather were also in the house. After speaking with respondent's stepfather, Paulintsky advised respondent of his Miranda rights and took him to the police station. After respondent gave an oral confession at the police station, Paulintsky contacted a youth officer.
When respondent's biological father arrived, respondent repeated his confession in front of his father, Chicago police youth officer Cheryl Guratowski, Detective Paulintsky, and assistant State's Attorney Montel Gayles. In his statement, respondent said that he overheard his brother and cousin talking about buying marijuana from Ellis on April 2, 1996. His brother Kenneth said that they would stick-up Ellis and take the marijuana, which Kenneth would sell. His brother planned to keep the money. Respondent heard Kenneth call Ellis three or four times and inquire about buying a pound and a half of marijuana.
Before Ellis arrived around 6 p.m., respondent warned Kenneth that it was not a good idea to rob Ellis because something might happen to their house or their family. Kenneth agreed, but then told respondent that when Ellis arrived, he should act like he did not know Kenneth and should do everything that Kenneth told the others to do.
When Ellis came to the house, Kenneth told respondent to come outside with him and Ellis. Respondent followed the two men into the backyard. Ten seconds later, Perez arrived. After Ellis took three plastic baggies filled with marijuana out of a backpack, Kenneth complained that Ellis had shorted him the last time. After Perez denied that he had shorted Kenneth earlier, Kenneth turned his back and looked at the marijuana. He then turned back toward the men and pulled a gun from his pocket. Perez tried to run, but Kenneth told him to stay. Kenneth hit Ellis in the mouth with the gun, then told everyone to get on ground. When no one got on the ground, Kenneth shot Perez in the chest. Ellis and Kenneth ran, but respondent stayed to help Perez. He returned home until the police arrived later that evening.
After closing arguments, the trial court found respondent guilty of two counts of aggravated battery and aggravated discharge of a firearm based on his written statement. The court found that both Ellis and Perez were not credible witnesses. After being found delinquent, respondent was sentenced to five years' probation.
The first issue is whether defendant received ineffective assistance of counsel because his attorney failed to file a motion to quash his arrest and suppress evidence or to refile a motion to suppress his statements.
In order to establish ineffective assistance of counsel, a defendant generally must prove that his counsel was deficient and that he was prejudiced by that deficiency. Strickland v. Washington, 466 U.S. 668, 687, 80 L. Ed. 2d 674, 693, 104 S. Ct. 2052, 2064 (1984); People v. Albanese, 104 Ill. 2d 504, 525, 473 N.E.2d 1246 (1984). To show prejudice, the defendant must demonstrate that there was a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. Strickland, 466 U.S. at 694, 80 L. Ed. 2d at 698, 104 S. Ct. at 2068. A reasonable probability is a probability sufficient to undermine confidence in the outcome. Strickland, 466 U.S. at 694, 80 L. Ed. 2d at 698, 104 S. Ct. at 2068. In making a determination of prejudice, the court must examine the totality of the circumstances. Strickland, 466 U.S. at 695, 80 L. Ed. 2d at 698, 104 S. Ct. at 2069.
To prevail on a claim that his trial counsel was ineffective for failing to file a motion to quash arrest or suppress statements, the defendant must show that there was a reasonable probability that the motion would have been granted and that the outcome of the trial would have been different if the arrest had been quashed or the statements suppressed. People v. Morris, 229 Ill. App. 3d 144, 157, 593 N.E.2d 932 (1992); People v. Bennett, 222 Ill. App. 3d 188, 201, 582 N.E.2d 1370 (1992); People v. Mendez, 221 Ill. App. 3d 868, 873, 582 N.E.2d 1265 (1991).
Defendant argues that he was arrested without probable cause and that his statements were involuntary. In determining whether an arrest has occurred, the court must make an objective determination whether a reasonable person, innocent of any crime, would have considered himself or herself arrested or free to leave. Michigan v. Chesternut, 486 U.S. 567, 573, 100 L. Ed. 2d 565, 572, 108 S. Ct. 1975, 1979 (1988); People v. Holveck, 141 Ill. 2d 84, 95, 565 N.E.2d 919 (1990). The factors to consider include the time, place, length, mood, and mode of the interrogation; the number of police officers present; any indicia of formal arrest or evidence of restraint; the intention of the officers; the extent of the officers' knowledge; the focus of the officers' investigation (People v. Brown, 136 Ill. 2d 116, 124-25, 554 N.E.2d 216 (1990)); the subjective belief of the detainee concerning his arrest status (People v. Booker, 209 Ill. App. 3d 384, 393, 568 N.E.2d 211 (1991)); any statement or non-verbal conduct by the police indicating that the detainee was not free to leave (People v. Langlo, 153 Ill. App. 3d 636, 641-42, 505 N.E.2d 1338 (1987)); and whether the detainee was told that he was free to leave or that he was under arrest. Holveck, 141 Ill. 2d at 95; People v. Reynolds, 257 Ill. App. 3d 792, 799 (1994). The police officer's subjective belief that the detainee was free to leave is not determinative if it was not communicated to the defendant. People v. Stofer, 180 Ill. App. 3d 158, 168, 534 N.E.2d 1287 (1989). No one factor is dispositive. A determination will vary with all of the circumstances surrounding the detention in each case. Chesternut, 486 U.S. at 572, 100 L. Ed. 2d at 571, 108 S. Ct. at 1978.
Whether or not probable cause for an arrest exists depends on the totality of the facts and circumstances known to the officers when the arrest was made. People v. James, 118 Ill. 2d 214, 223, 514 N.E.2d 998 (1987). Probable cause "requires more than mere suspicion, but it does not require the arresting officers to have in their ...