Appeal from the Circuit Court of Cook County Honorable Dennis Dernbach, Judge Presiding.
The opinion of the court was delivered by: Justice HOFFMAN*fn1
Following a jury trial, the defendant, Antoine Ollie, was convicted of first degree murder and home invasion. The trial court sentenced the defendant to 50 years' imprisonment for first degree murder and a concurrent term of 15 years' imprisonment for home invasion. The defendant filed the instant appeal asserting that: 1) the trial court erred in denying his motion to quash his arrest and suppress his statement; 2) he was denied his right to a trial before a fair and impartial jury because the trial court failed to sua sponte dismiss one of the jurors for cause; 3) the State improperly introduced hearsay testimony implicating him in the commission of the crimes charged; 4) the State elicited prejudical and inflammatory testimony about the decedent and his family for the sole purpose of appealing to the jury's sympathy and to create a sense of outrage; 5) his first degree murder conviction was the product of a double enhancement and constitutes double jeopardy; 6) his 50-year sentence for first degree murder is excessive; and 7) the mittimus should be amended to reflect the proper credit for time served prior to sentencing. *fn2
The defendant and three co-defendants, Anthony Porter, Martin Johnson, and Theodore Glaspie, were charged with first degree murder and home invasion in connection with the shooting of Kenyatta Wilkins, which took place on October 15, 1997. Prior to trial, the defendant filed a single motion seeking to quash his arrest, alleging that it was made without probable cause, and to suppress evidence, including his inculpatory statement. The defendant also filed a separate motion seeking to suppress his inculpatory statement on the basis that he was not advised of his rights before making it.
The trial court first conducted a hearing at which it heard the defendant's motion to quash his arrest simultaneously with similar motions filed by Porter and Johnson. The evidence as it pertained to the defendant is as follows. The defendant called Chicago police officer Patrick Keating to testify. According to Keating, when he began his shift on October 15, 1997, he learned that Chicago police detectives Lenihan and Ryan wished to speak with a person known as "Red" in connection with a murder investigation they were conducting. Having previously had contact with a man named Willie Lewis, also known as "Red", Keating checked police files to find Lewis' address, which was listed 7244 South Artesian Avenue. Around 11 or 11:30 p.m on October 15, 1997, Keating and Chicago police officers Glynn, Clisham, and Jesionowski went to that address. The officers did not have an arrest warrant for Lewis or a search warrant for the premises. When the officers rang the doorbell, Lewis' mother answered the door. According to Keating, he identified himself as a police officer and stated that he wished to speak to Lewis in connection with an investigation. Keating testified that Lewis' mother allowed him into the house and told him that Lewis was upstairs. Keating and Glynn then went upstairs.
Carolyn Farrar, Lewis' mother, offered a far different version of events. According to Farrar, when she answered her door, she told the officers that Lewis was not there. Farrar testified that she agreed to speak to the officers but stated that she wanted to get a housecoat before letting them in the house. When she walked away from the door, though, the officers "just stormed into" the house, following her to the back of the house and then going into the basement and upstairs. Farrar testified that, after retrieving her housecoat, she went into the basement, where she found that four police officers had Lewis' three friends, including the defendant, handcuffed and kneeling on the floor. Farrar estimated that there were 15 to 20 police officers at her house. Some of the officers had helmets, shields, and battering rams.
The State called Officer Jesionowski to testify. Jesionowski confirmed Keating's testimony that Farrar allowed the officers into the house. He testified that none of the officers had helmets, shields, or a battering ram. According to Jesionowski, while Keating and Glynn were upstairs, he heard some people moving around in the basement. He and Officer Clisham went downstairs to investigate. The officers found the defendant, Porter, and Johnson in the basement and asked the men "if they knew what was going on over on Damen." According to Jesionowski, the men immediately stated that Lewis was not involved in the shooting. Jesionowski asked the three men whether they would be willing to accompany the officers to the police station to speak with detectives, and the men agreed. Jesionowski testified that the officers did not put the men in handcuffs at any time or place them on their knees. He further testified that, upon discovering the three men in the basement, the officers called for another unit to assist them, but there were never more than six officers present at the Lewis home. Jesionowski testified that he did pat down the three men to make sure that they were not armed. According Jesionowski, Keating and Glynn transported Lewis to the police station, while he and Clisham transported the defendant, Porter, and Johnson. When they arrived at the police station, Jesionowski and Clisham placed the defendant, Porter, and Johnson in an interview room together and closed the door, turning the case over to detectives. Jesionowski did not know if the door to the room was locked.
Detective Robert Lenihan testified that he and his partner, Detective Bernard Ryan, were assigned to investigate Wilkins' murder. The detectives had received information that a person known as Red and his friends had exchanged gunfire with the victim and his friends the day prior to the murder. When he began his shift at 8:30 a.m. on October 16, 1997, he learned that Lewis, the defendant, Porter, and Johnson were at the station waiting to be interviewed. Lenihan testified that the defendant, Porter, and Johnson were not handcuffed, that they were all in the same room, and that the room was not locked. Lenihan introduced himself to the men and stated that he wished to speak with them but that there were other things he needed to do first. He asked the men to be patient. According to Lenihan, the men asked "how long it would take" and, when he said he would be as quick as possible, they did not object.
Lenihan testified that he and his partner returned to the station around 3 or 3:30 p.m. and brought the men food. Lenihan then spoke to Porter, the defendant, Lewis, and Johnson, individually, in that order. It was between 3 and 5 p.m. when he spoke to the defendant. Lenihan advised the defendant of his Miranda rights before speaking to him. The defendant stated that he did not know anything about the murder. After speaking to the defendant, Lenihan returned him to the room with Porter and Johnson. When asked why he read the defendant his rights prior to interviewing him, Lenihan responded that the defendant was involved in the incident the day prior to the victim's murder and that he did not know what the defendant was going to say about either that incident or the murder. Upon further questioning, though, Lenihan acknowledged that, at the time he first interviewed the defendant, he had no information that the defendant was involved in the incident the day prior to the murder.
According to Lenihan, when he spoke to Johnson, Johnson stated that, on October 14, 1997, he and his friends were involved in two altercations with the victim and his friends. After this conversation with Johnson, Lenihan and Ryan went Johnson's residence, where they left their card with Johnson's father, along with a request that Johnson's mother contact them. Lenihan testified that the detectives wished to speak with Johnson's mother because they had been told that she had information relevant to their investigation. Upon leaving the Johnson home, the detectives returned to the police station. According to Lenihan, he then confronted Johnson with some unspecified information, and Johnson gave an oral statement naming himself, Lewis, Porter, the defendant, and two other people as participants in the victim's murder. Lenihan testified that, before Johnson gave the statement, he had checked Johnson's background and discovered that there was an outstanding juvenile warrant for Johnson's arrest. According to the detective, Johnson was "in custody at that time when we found out that he had a juvenile warrant."
Lenihan testified that, based upon Johnson's statement, the defendant and Porter were separated and "put in locked rooms, they were taken into custody."
The defendant's girlfriend, Jammie Miller, testified in rebuttal. Miller was upstairs in bed with Lewis when the police arrived. She testified there were "a lot" of officers in the house and that the officers were "rambling" through the house, searching it. When Miller later went down to the first floor, she saw the officers take the defendant, Porter, and Johnson out of the house in handcuffs. She did not see any officers with helmets, shields, or a battering ram.
In surrebuttal, Officer Glynn testified that the defendant, Porter, and Johnson were not handcuffed, that the officers never searched the house, and that there were never more than six officers on the scene.
In ruling on the defendant's motion, the trial court specifically found that Farrar's testimony about the officers' conduct was not credible and that it was "more reasonable" that the events occurred as stated by the officers. He found that the defendant was not handcuffed and voluntarily accompanied the officers to the police station. The court also found that the facts that the defendant was placed in a room with Johnson and Porter, rather than by himself, and that the officers did not prepare an arrest report supported a finding that the defendant was not under arrest when he arrived at the police station. The trial court found that there was no evidence that the defendant asked to leave from the time that he arrived at the station to the time that Detective Lenihan arrived and spoke briefly to him, asking him to wait and be patient. The court stated that: "At some point their status changed and that is unclear at this point from my reading of it in terms of the statements they made. *** I'm dealing only with the initial taking into custody and going to the station up until Lenihan deals with them. They went voluntarily and remained voluntarily for a period of time." The trial court denied the motion to quash arrest, finding that the defendant was voluntarily at the station at least until the time that Detective Lenihan spoke to him at 8:30 a.m. on October 16. The court, however, made no finding as to when the defendant was placed under arrest.
On a subsequent date, the trial court conducted a hearing at which it simultaneously heard the motions to suppress statements filed by the defendant and Porter. Detective Ryan was the only witness to testify at the hearing. Ryan testified that, around 3 p.m. on October 16, 1997, he and Detective Lenihan interviewed Porter for 10 to 20 minutes. Thereafter, the detectives interviewed the defendant. Lenihan advised the defendant of his rights pursuant to Miranda. The defendant stated that he understood each of the rights and that he wished to speak with the detectives. Ryan testified that the detectives then had a 10 to 20 minute conversation with the defendant during which they asked him general questions. The defendant did not implicate himself in the victim's murder during that conversation. At the end of the conversation, the defendant was returned to the room with Porter and Johnson. Asked if he ever told the defendant that he was free to leave, Ryan answered that he "never used those express words" but that the defendant was told several times during the day that he was there to assist Lewis and that he was not under arrest. Ryan testified that the police usually keep cooperative witnesses together, but do not keep suspects together.
Ryan testified that he and Lenihan had a second conversation with the defendant around 7 p.m. on October 16. Lenihan again advised the defendant of his Miranda rights, and the defendant again stated that he understood them. According to Ryan, this conversation lasted 15 to 25 minutes. After this conversation, Ryan testified, he had no further contact with the defendant in connection with the murder investigation. Prior to this second interview with the defendant, Johnson had already given a statement implicating the defendant in Wilkins' murder.
According to Ryan, he advises a "fair amount" of the witnesses that he interviews of their Miranda rights because some people who come in as witnesses later turn out to be co-offenders. In the defendant's case, he was a "close associate" of Lewis, who was a suspect. Ryan testified that he believed that the room where the defendant, Porter, and Johnson were being kept was locked. He testified that even witnesses are not allowed to walk around the police station unaccompanied, that the men were told to knock on the door if they needed anything, that they were told they were witnesses and were not under arrest, and that they would have been allowed to leave if they had asked to do so.
The parties stipulated that, at 12:50 a.m. on October 18, the defendant gave a handwritten statement regarding the shooting of the victim to Assistant State's Attorney Steve ...