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People v. Primm

December 29, 2000


Appeal from the Circuit Court of Cook County. No. 94 CR 27857 The Honorable Marcus R. Salone, Presiding Judge.

The opinion of the court was delivered by: Justice Buckley

In November 1994, the State charged defendant DeCarlo Primm and co-defendants Demetrius Willis, Miles Smith and Korey Herring with first degree murder (720 ILCS 5/9-1(a)(1), (a)(2) (West 1994)), attempted first degree murder (720 ILCS 5/8-4 (West 1994)), and aggravated battery with a firearm (720 ILCS 5/12-4.2(a) (West 1994)). Defendant and Willis were then tried simultaneously in the trial court, Willis in a bench trial and defendant by a jury. At the conclusion of the trial, defendant and Willis were found guilty of first degree murder, attempted first degree murder, and aggra-vated battery with a firearm. Both defendant and Willis were sen-tenced to 50 years' imprisonment. Defendant now appeals, con-tending that (1) his statements made to investigators were involuntary and coerced; (2) the State improperly excused a potential juror based upon her race and failed to offer legitimate race-neutral reasons for another potential juror's dismissal; and (3) the trial court improperly considered his race during sentencing. The State cross-appeals, arguing that the trial court erred by failing to impose consecutive sentencing. We affirm in part, reverse in part, and remand.


Peter Jones testified that on October 21, 1994, at about 9 a.m., he, Andre Humphries, and Brian Boler (all members of the Gangster Disciples street gang), were walking along 70 Street in Chicago when they noticed a car coming toward them. They saw the front-seat passenger "throw up" a Gangster Disciples gang sign. Jones identified this person as defendant. Jones and Boler also made the Gangster Disciples sign. Jones stated that when he turned around to look at the car, he saw defendant point a gun and start shooting. He and Humphries began running and turned into an alley.

After turning into the alley, Jones testified that he hid behind a van parked in the middle of the alley and remained there until he heard one of his friends yelling that someone had been shot. At this point, he saw Humphries lying on the ground in the alley.

Boler testified that, as soon as he saw the gun, he ran out ahead of his friends down 70 Street towards Eggleston Way. After the first three shots were fired, Boler was hit in the back of his left thigh. However, he continued running and turned north on Eggleston toward 69 Street.

Chicago police officer Jeffries testified that he was on duty the morning of October 21, 1994. At about 9:45 a.m., he received a call that a man had been shot at 409 West 70 Street. When Officer Jeffries arrived at the scene, about 10 to 15 people had gathered at the location. He discovered Humphries' dead body lying in an alley and called for an ambulance and assistance.

While Officer Jeffries was still at the scene, Boler approached him and said that he had also been shot. He explained that a car with four or five men drove by and one of the occupants pointed a gun out the window and started firing. Boler then went to the hospital.

At about 10:30 a.m. on October 21, 1994, Detective Linn Rolston and his partner, Detective Thomas Byron, were assigned to the case. Detective Rolston testified that he and Detective Byron proceeded to the scene of the shooting and talked with a few people. During their investigation, they learned of a witness named Luther Kymes. Detectives Rolston and Byron then interviewed Kymes. Based on the information Kymes gave them, the detectives began looking for a man named Korey Herring. The assistant principal at Robeson High School said that Herring was a student at the school and gave his address to the detectives.

Detectives Rolston and Byron went to Herring's residence at 70 and Lowe. They interviewed Herring's mother. While they learned that Herring was not there, they received Herring's father's telephone number. The detectives eventually located Herring at his father's house at 7111 South Vernon. Herring and his father fol-lowed the detectives to Area One headquarters at 51 and Wentworth.

The next day, October 22, 1994, Herring accompanied Detectives Rolston, Ryan and Lenihan and gang specialist Jack Bleuer, while they searched for other offenders and evidence near the scene of the crime. Herring informed the detectives that defendant, Smith, and Willis were involved in the shooting the day before. Then, at about 1 p.m. on October 22, the detectives found defendant and Willis sitting in Willis' car at 69 and Parnell. Herring identi-fied them. The detectives then apprehended defendant and Willis and took them to Area One.

Investigators separated defendant and Willis when they arrived at the station at 1:45 p.m. Ryan testified that the investigators placed defendant in a room at Area One, advised him of his rights, and then left to continue the investigation. Ryan returned around 4 p.m. and brought defendant food from McDonald's. At this point, Ryan learned that defendant was 16 years old and, therefore, he attempted unsuccessfully to get a youth officer to participate in the interview. Ryan again advised defendant of his rights, adding that, if charged, he could be prosecuted as an adult. Ryan further testified that he attempted to contact defendant's mother several times but was unable to do so. Defendant denied being present at the scene of the offense.

At approximately 5 p.m., youth officer Funches spoke with defendant. According to Funches, defendant indicated that he understood why he was taken to Area One. Funches was present dur-ing the remainder of defendant's interviews.

At approximately 7:45 p.m. on October 22, 1994, the police conducted a lineup. Jones viewed the lineup and identified defen-dant as the shooter. Although Willis was not identified, Jones did identify Willis' car as the one used in the shooting.

At approximately 9:30 p.m., Assistant State's Attorney Maria Kuriakos met with defendant. Youth officer Funches and Detective Ryan were also present. Kuriakos advised defendant of his Miranda and juvenile rights, and defendant indicated that he understood. Kuriakos testified that, before she asked defendant any questions, defendant admitted his involvement in the shooting. This interview lasted about two minutes.

At 11:30 p.m., Assistant State's Attorney Tom Biesty inter-viewed defendant. Again, youth officer Funches and Detective Ryan were also present. Biesty again advised defendant of his Miranda and juvenile rights, and defendant indicated that he understood. Biesty explained that Funches was there to answer defendant's questions about his rights. Biesty testified that he asked defendant how he was being treated, to which defendant replied "fine." Defendant then agreed to memorialize his statement through a court reporter.

In defendant's statement, he indicated that he understood his Miranda and juvenile rights and that he was treated fine by the police. He admitted attending a Black Disciples' gang meeting the night before the shooting. After this meeting, defendant and co-defendants agreed to kill Gangster Disciples. The next day, defendant and other gang members met at 9 a.m. at the train tracks near 69 and Parnell and distributed guns to each other. Defendant and Willis drove around the neighborhood and found several Gangster Disciples. Defendant and Willis returned to pick up three other gang members and then drove to the area where the Gangster Disciples were walking. The group devised a plan whereby Willis and defendant waited in Willis' car, which they parked in an alley. According to defendant's statement, when the victims attempted to escape gunfire from three other gang members, defendant shot at the ground toward the victims to flush them back. When the attack concluded, the group fled in Willis' car. After reviewing his statement, defendant signed each page. Detective Ryan testified that defendant concluded his statement at approximately 1:55 a.m.

In August 1995, defendant filed a motion to suppress his oral and written statements, arguing that investigators failed to notify his mother that he was arrested and refused his mother's repeated requests to see him. Further, defendant claimed that "during [the] time the defendant was questioned, [investigators] hit, punched and slammed [him] against a wall" and that his statements "were the result of force, threats, and coercion by the police detectives and were not voluntary." Finally, defendant stated that, during questioning, he asked to speak with a lawyer but was not permitted to do so.

In October 1996, the trial court denied defendant's motion to suppress, finding that defendant's statements were made freely. In June 1997, trial began. At the conclusion of the trial, the jury found defendant guilty of first degree murder, attempted first degree murder, and aggravated battery with a firearm. After con-ducting an aggravation and mitigation hearing, the trial court sentenced defendant to 50 years' imprisonment. Defendant then filed the instant appeal.


A. Voluntariness of Defendant's Confession

On appeal, defendant first contends that his statement was made involuntarily and, therefore, should have been suppressed. When defendants raise such a claim, the State bears the burden of demonstrating that defendant's confession was made voluntarily. People v. Lash, 252 Ill. App. 3d 239, 242 (1993). The test for the voluntariness of a statement is whether, under the totality of the circumstances, the statement was made freely, without compulsion or inducement, with consideration given to the characteristics of the accused and the length of the interrogation. People v. Fuller, 292 Ill. App. 3d 651, 664 (1997). To determine the voluntariness of statements, the court may consider the age, intelligence, experience, and physical condition of the defendant, the length of the interrogation, the possibility of threats, promises or physical coercion, as well as the presence of a parent or youth officer. People v. Williams, 275 Ill. App. 3d 249, 256 (1995).

The totality of the circumstances test also applies when juveniles are involved. People v. McNeal, 298 Ill. App. 3d 379, 390 (1998). However, in such cases, additional considerations exist, including the time of day when questioning occurred and the presence or absence of a parent or other adult interested in the minor's welfare. McNeal, 298 Ill. App. 3d at 391. Further, the benchmark for voluntariness is not whether the defendant would have confessed in the absence of interrogation but, rather, whether his will was overborne at the time. McNeal, 298 Ill. App. 3d at 391. Finally, under section 5-6(2) of the Juvenile Court Act of 1987 (the Act) (705 ILCS 405/5-6(2) (West 1994)), police must make a reasonable attempt to notify the minor's parent, guardian, or the person with whom the minor resides at the time they take the minor into custody.

Specifically, defendant argues that his statement was involuntary because the "police frustrated his mother's attempts to see him and because no other adult interested in his welfare was present" when he made the statement. The trial court rejected this argument, stating:

"There was testimony by Primm's mother concerning her presence at the police station off and on *** the night in question ...

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