Appeal from the Circuit Court of Cook County No. 94 CR 24295 Honorable Richard Neville Judge Presiding.
The opinion of the court was delivered by: Presiding Justice Cahill
Defendant appeals his second degree murder conviction and 13-year sentence after a bench trial. We affirm.
Purnell Hall was killed on August 26, 1994, during a gang shoot out between the Black Souls and the Gangster Disciples. The shooting happened at 9:45 p.m., near the corner of Madison and Sacramento Avenues.
Defendant, while in custody on a charge of unlawful possession of weapons, was questioned about the shooting of Hall. Defendant signed a statement that implicated him in the shooting, which in turn led to his trial and conviction for second degree murder. He raises two constitutional issues on appeal. He first argues that the statement implicating him in the shooting of Hall must be suppressed because it was obtained while he was in custody on a closely related charge-unlawful possession of weapons-in violation of the sixth amendment (U.S. Const., amend. VI). In the alternative, defendant argues that his statement must be suppressed under a fifth amendment analysis (U.S. Const., amend. V), even if the charges were not closely related under the sixth amendment, because his attorney filed a "Notice of Representation" signed by defendant when he was charged with unlawful possession of weapons. The notice announced defendant's desire not to be questioned "on any case or matter whatsoever."
We reject defendant's constitutional arguments and affirm. We first hold that the charged offenses were not so closely related that defendant's sixth amendment rights were implicated. We then hold that the "Notice of Representation" did not prohibit defendant from waiving the rights claimed in the notice and voluntarily giving a statement on an uncharged offense after receiving Miranda warnings.
Evidence presented at the hearing on the motion to suppress and defendant's trial relevant to the issues raised in this appeal show that a gang altercation took place in Chicago on August 26, 1994. Shots were fired and a passerby was killed. On September 9, defendant orally admitted, and then signed a five-page statement in the presence of police officers and an assistant State's Attorney, that he fired the shotgun that killed the passerby. The events that took place between the night of the shooting and defendant's statement form the grounds for defendant's argument that his statement was obtained in violation of the fifth and sixth amendments.
On the night of the shooting, police were in the vicinity and began an immediate investigation. Several gang members at the scene were arrested, and several weapons were recovered from a house nearby where one of the gang members lived. Defendant was not involved in the investigation on the night of the incident.
On September 1 Officer Matt Pilolli received a tip from an informant that the weapon used in the August 26 shooting was in an apartment at 11 S. Whipple. Defendant lived in the apartment along with other members of the Black Souls gang. Pilolli conducted a consensual search of the apartment. He recovered two handguns from defendant's bedroom and a shotgun from another bedroom. Pilolli placed defendant under arrest for unauthorized possession of weapons and he was taken into custody. On September 2, defendant's attorney filed the "Notice of Representation" on the unlawful use of weapons charge, which underlies defendant's fifth amendment claim. At that time, the police did not know that the shotgun recovered from a bedroom in the apartment was, in fact, the weapon used in the August 26 shooting.
On September 5, another Black Souls gang member present at the shooting gave a statement to police, implicating defendant as the shooter.
The 12-gauge shotgun recovered on August 26 and the pump shotgun recovered from defendant's home on September 1 were examined on September 6 by Richard Fournier, a firearms expert. Fournier concluded that the two Winchester shells found at the scene came from the pump shotgun and the other two shells could have come from the 12-gauge shotgun. Fournier also concluded that the fragments removed from the victim were consistent with Winchester shells.
Defendant, in custody on the unlawful weapons charge, was writted in from jail on September 9, 1994, to answer questions about the shooting.
Defendant was given Miranda warnings, interviewed, and an assistant State's Attorney took a written statement. Defendant implicated himself in the August 26 incident. The State's Attorney and officers interviewing defendant knew that he was being held on an unlawful weapons charge.
Defendant moved to suppress the statement on the grounds that the interrogation and subsequent statement violated his sixth amendment right to counsel. The court denied the motion, finding that the weapons charge and the murder charge were not so closely related that they fell under the related offenses exception.
We generally review a trial court's ruling on a motion to suppress on a manifestly erroneous standard. People v. James, 163 Ill. 2d 302, 310, 645 N.E.2d 195 (1994). But a de novo standard is used when, as here, neither the facts nor the credibility of witnesses is in dispute and the issue presented is ...