Appeal from the Circuit Court of the 21th Judicial Circuit Kankakee County, Illinois No. 95-CF-232 Honorable Sheldon Reagan, Judge Presiding
The opinion of the court was delivered by: Justice Homer
Defendant was convicted in a bench trial of armed violence (720 ILCS 5/33A--2 (West 1994)) and possession with intent to deliver a controlled substance (720 ILCS 570/401(c)(2) (West 1994)). He was sentenced to concurrent terms of six years in prison. Defendant appeals, contending: (1) the trial court erred in refusing to suppress his confession; (2) the State failed to show beyond a reasonable doubt that he was guilty of armed violence; and (3) his separate convictions and sentences for the two offenses violate one-act-one-crime principles. Because the trial court erred in admitting defendant's confession, we reverse his convictions and remand for a new trial.
Defendant was arrested and charged with armed violence (720 ILCS 5/33A--2 (West 1994)) and possession with intent to deliver a controlled substance(720 ILCS 570/401(c)(2) (West 1994)). Alleging that the police failed to comply with Miranda v. Arizona,384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966), and that a statement he had given to police was involuntary, defendant filed a motion to suppress that statement.
At the hearing on the motion to suppress, members of the Kankakee Area Metropolitan Enforcement Group (KAMEG) testified that they executed a search warrant at an apartment leased to Monica Myert. Defendant, having arrived in Kankakee a few days earlier to visit Luther Hill, had slept at Myert's apartment following a social gathering the night before. When the KAMEG team entered the apartment, they found Hill asleep on a couch and defendant asleep on the floor of the living room. Defendant's girlfriend, Sherri Caffey, was also found sleeping in the living room. Myert's cousin and the cousin's baby were in a bedroom. The officers handcuffed defendant and Hill, "probably" handcuffed the two women, and seized a gun and a container which had been lying on a coffee table situated between Hill and defendant. The container held several baggies of what was later identified as crack cocaine.
According to Officer Don Barber, defendant signed a rights waiver form and agreed to talk. Initially, defendant denied knowing anything about the gun or the drugs found on the table. However, after Barber told defendant that the women would be arrested and the baby turned over to the Department of Children and Family Services (DCFS) unless someone admitted ownership of the contraband, defendant said that he knew nothing about the gun but that the drugs belonged to Hill.
Officer John McClellan testified that he and Sergeant Robert Bodemer then took defendant into a different room because Officer Barber "wasn't having much luck getting anything talking to anybody." McClellan left the room and, when he returned, informed defendant that Hill had incriminated himself and defendant. Defendant thereupon admitted to having purchased the drugs but he continued to deny knowledge of the gun. Defendant provided a written statement to this effect.
The officers denied having coerced, threatened or made promises to defendant. They all testified that he did not invoke his right to remain silent. McClellan admitted that his initial inclination was to arrest everyone and take them to jail and that the baby would then have to be turned over to DCFS. However, McClellan did not recall threatening defendant with this possibility. Barber admitted he told defendant that the women would be arrested and the baby turned over to DCFS unless someone admitted ownership of the contraband, but he denied having said that to threaten defendant. Bodemer recalled discussing with the other officers whether or not to arrest the women, but did not know if that discussion took place in defendant's presence. Bodemer did not hear anyone say anything about DCFS. Officer Samuel Miller heard DCFS mentioned.
Caffey, Hill and defendant all testified that the police threatened that everyone would be arrested and taken to jail, and the baby turned over to DCFS, unless defendant and Hill gave incriminating statements.
The trial court denied defendant's motion to suppress, finding that "the affection [defendant] may have for some young lady does not relate to the point where he can say that because there was this DCFS threat and the arrest of these women [that it] so overwhelmed his mind to the point he was coerced into making statements."
At defendant's bench trial, Officer Alan Swinford testified that the container in which the drugs were found was opaque and only after opening the bottle did he see the bags of what appeared to be cocaine. The container was not checked for fingerprints and any prints on the gun were likely destroyed when Swinford seized it upon entering the apartment.
At trial, Barber testified that when he began to discuss the drugs with defendant, defendant said he did not want to say anything more to Barber. Barber testified that he told Officer McClellan that defendant did not want to talk.
McClellan testified that he took defendant into another room, told defendant that Hill had incriminated them both and asked defendant to give a written statement. McClellan admitted that Barber "may have" told him that defendant did not want to talk. According to McClellan, though, Barber "never said that [defendant] wanted to invoke any of his rights or privileges with an attorney or anything."
Caffey and defendant both testified at trial that when they went to sleep the night before the arrest, they had not seen either the ...