Appeal from the Circuit Court of Cook County. No. 98 CR 25095 The Honorable Henry Simmons, Judge Presiding.
The opinion of the court was delivered by: Presiding Justice Cohen
Juvenile defendant Marcus Jenkins was tried as an adult before a jury and convicted of first degree murder (720 ILCS 5/9-1(a)(1) (West 1998)) in the gang-related shooting death of 79- year-old Edna Dela Rosa. The trial court sentenced Jenkins to a term of 50 years' imprisonment. Jenkins appeals both his conviction and sentence, arguing that: (1) inculpatory statements to police should have been suppressed as involuntary; (2) the prosecution made improper and prejudicial comments during closing argument; and (3) his 50-year term of imprisonment is excessive and must be reduced. We affirm. *fn1
Jenkins first argues that his initial statement to police should have been suppressed as involuntary because: (1) it was made shortly afer his 3 a.m. arrest; (2) he did not sign a waiver of rights form; and (3) "a youth officer, parent, attorney or family member was not present when he first confessed." Jenkins does not argue that his subsequent statements to police were involuntary in and of themselves; rather, Jenkins argues that because his initial statement was involuntary, his subsequent statements to police should be suppressed as "fruit of a poisonous tree."
"As a general rule, this court will reverse a trial court's denial of a motion to suppress statements only if that ruling is manifestly erroneous. [Citation.] In this case, however, de novo review is appropriate, as neither the facts nor the credibility of the witnesses is at issue." People v. Nielson, 187 Ill. 2d 271, 286 (1999).
The "fruit of the poisonous tree" doctrine applies only where evidence is obtained in violation of a defendant's constitutional rights. People v. Winsett, 153 Ill. 2d 335, 353 (1992). Evidence discovered by virtue of a statement obtained in violation of a constitutional right must be suppressed. Winsett, 153 Ill. 2d at 353. A statement is obtained unconstitutionally where it is involuntary. People v. Gonzalez, 313 Ill. App. 3d 607, 615 (2000). Thus, in order to suppress Jenkins' subsequent statements, we must find not only that his initial statement to police was involuntary, but that Jenkins' subsequent statements were obtained "by virtue" of his initial statement. Gonzalez, 313 Ill. App. 3d at 615.
The record reflects that during a hearing on Jenkins' motion to suppress, the defense was granted leave of court to present its witnesses prior to the prosecution's. The defense first presented several of Jenkins' fellow gang members, all of whom offered substantially similar testimony to the effect that Jenkins had been drinking alcohol and smoking marijuana in their company until intoxicated the night before his 3 a.m. arrest on August 27, 2000.
Jenkins' cousin, Faye Jenkins, then testified that she received a telephone call from police around 3 a.m. on August 27, 2000, asking her to reach Jenkins' mother, Gloria Jenkins, who had no telephone. Faye stated that she then went to Gloria's apartment (in the same building) to inform Gloria of the call. Gloria accompanied Faye to Faye's apartment to return the call, did so, then left the apartment. Faye concluded that Gloria was intoxicated at the time based on Gloria's glazed eyes, slurred words and the smell of liquor on Gloria's breath.
Chicago police officer Timothy O'Brien then testified for the State. Officer O'Brien testified that when he arrested Jenkins and led him to a squad car around 3 a.m. on the morning of August 27, 2000, Officer O'Brien detected no odor of alcohol about Jenkins' person, nor did Jenkins' eyes appear bloodshot.
Believing Jenkins to be a juvenile, Officer O'Brien proceeded according to protocol and attempted to contact Jenkins' parents and inform them of their son's arrest. After knocking on the door to Jenkins' apartment and receiving no response, Officer O'Brien went to Faye's apartment. In the hall outside her apartment, Officer O'Brien informed Faye that Jenkins was being taken to Area Four police headquarters for questioning in a murder investigation. Officer O'Brien provided Faye with his name, star number and the headquarters telephone number and asked Faye to contact Jenkins' parents.
Officer O'Brien then returned to the squad car and informed Jenkins that he had just spoken to Faye. Officer O'Brien testified that it was at this point that Jenkins stated without being asked that "he knew why we were looking for him, he knew why we were there and that he knew the location of a weapon that we were looking for." *fn2 Jenkins then offered to lead Officer O'Brien and his partner, Officer Neil Schulz, to the weapon. When the officers allowed Jenkins to exit the squad car, Jenkins led them into an apartment building at 1170 West Erie, up to the ninth floor, into a utility closet/incinerator room and indicated that the gun could be found on top of an electrical junction box above the officers' line of sight. Officer O'Brien then reached up and ran his hand over the top of the junction box, causing a chrome-plated .380 semi-automatic pistol to fall to the floor. The pistol was later identified through ballistics analysis as the murder weapon.
Jenkins was then taken to Area Four police headquarters, transferred to investigating Detectives Alphonso Bautista and Paul Lopez and seated in a roll-call room. Around 4 a.m., an hour after Jenkins' arrest, Detectives Bautista and Lopez prepared to interview Jenkins. The detectives first advised Jenkins of his Miranda rights and informed Jenkins that he could be charged and tried as an adult despite his juvenile status. They then inquired as to the name and location of Jenkins' legal guardian. Jenkins responded that he understood each of his ...