Appeal from the Circuit Court of Cook County. Honorable Joseph Urso and Thomas P. Fecarotta, Jr., Judges Presiding.
The opinion of the court was delivered by: Presiding Justice South
This appeal arises from defendant's convictions for first degree murder and aggravated discharge of a firearm following a simultaneous, severed jury trial with co-defendants Bretton Holman and Raul Negrete, who were both tried to the bench. Co-defendant Holman was acquitted, while co-defendant Negrete was convicted and sentenced to a 20-year prison term. Co-defendant Negrete is not a party to this appeal. *fn1 Defendant was sentenced to concurrent sentences of 40 years' imprisonment for murder and 10 years' imprisonment for aggravated discharge of a firearm.
Prior to trial, defendant filed a motion to suppress his confession. In that motion, he alleged that before he made an inculpatory statement, he was falsely promised a reduction in the charge if he admitted his participation in the shooting. Defendant further alleged that the assistant State's Attorney added to the psychological coercion by falsely informing him that he may be charged with manslaughter. Defendant concluded that because his confession was psychologically coerced and involuntary, it should have been suppressed at trial.
Detective Joe Belmonte testified that he worked for the Village of Mount Prospect and was assigned to investigate the shooting death of Dareth Womack on April 24, 1999. As part of that investigation, he interviewed defendant at the Mount Prospect police department. Also present for the interview was Assistant State's Attorney (ASA) Mary Beth Kinnerk. Prior to the interview, defendant was advised of his Miranda warnings by ASA Kinnerk from a preprinted form, which was provided by the Mount Prospect police department. After stating that he understood his rights, defendant agreed to make a statement, and the interview lasted approximately 30 minutes. At the conclusion of that interview, defendant requested to speak to his cousin, Ashor Jajou. Both Detective Belmonte and ASA Kinnerk left the room, and arrangements were made to accommodate defendant's request. Approximately one hour later, Detective Belmonte and ASA Kinnerk returned with Ashor Jajou. Jajou told defendant, "Bro, you have to do the right thing, this sh-- has got to stop. Somebody's dead now." Shortly after that statement was made, Detective Belmonte escorted Jajou out of the interview room. When Detective Belmonte returned, ASA Kinnerk met him at the door and requested that he get water and tissue for defendant, which he did. ASA Kinnerk then informed him that defendant wanted to speak to her alone. Aside from those conversations, neither Detective Belmonte nor any other police personnel spoke with defendant. Detective Belmonte testified that neither he nor anyone else made false promises to defendant in exchange for his confession. Detective Belmonte was then questioned as to whether ASA Kinnerk informed defendant that he may be charged with manslaughter, to which Detective Belmonte responded, "Yes."
On cross-examination, Detective Belmonte testified that defendant had been brought to the station at about noon and was not questioned prior to 8 p.m. At that time, defendant initially denied his involvement in the shooting. Detective Belmonte spoke with Jajou before he spoke with defendant. Defense counsel then questioned Detective Belmonte as to whether he said anything to defendant regarding his cooperation with the police, to which he responded, "No." Defense counsel's questions concerning whether there was any discussion between Detective Belmonte and ASA Kinnerk concerning the charges to be brought against defendant were objected to by the State, and those objections were sustained by the trial court. Detective Belmonte further testified that Jajou was at the station because he had been detained for an unrelated matter by another department.
ASA Mary Beth Kinnerk testified for the State that on April 24, 1999, she was assigned to an in-progress investigation with the Mount Prospect police department regarding the homicide of Dareth Womack. At 8 p.m. she and Detective Belmonte interviewed defendant. Prior to the interview, ASA Kinnerk advised defendant that she was not his lawyer, and she also advised him of his Miranda rights from a preprinted form, which was supplied by the Mount Prospect police department and which defendant subsequently signed. Defendant then agreed to speak with her, and the subsequent conversation lasted approximately 30 minutes. At the conclusion of that conversation, defendant asked to speak with his cousin, Jajou, and Kinnerk and Detective Belmonte went to locate Jajou. They returned with Jajou at approximately 9 p.m. Jajou initially spoke to defendant in what ASA Kinnerk believed was Spanish, but Detective Belmonte told him to speak English. At that point, Jajou told defendant, "Look, somebody's dead. This has gotta stop. You've got to tell the truth." Immediately thereafter, Detective Belmonte escorted Jajou from the interview room. ASA Kinnerk was left alone with defendant, and he began to cry. Defendant then indicated that he wanted a glass of water, and when Detective Belmonte returned to the room, ASA Kinnerk asked him to get defendant a glass of water and some tissue. When Detective Belmonte returned with those items, ASA Kinnerk informed him that defendant wanted to speak to her alone and that he did not want any police officers in the room. ASA Kinnerk and defendant subsequently had an hour-long conversation, after which she asked defendant whether he would agree to have his statement memorialized in either a handwritten or a court-reported statement, and she explained the difference between the two. Defendant indicated that he did not want anyone else present and that he wanted a handwritten statement. ASA Kinnerk began to write defendant's statement at approximately 10:30 p.m. while he ate dinner. It took her about an hour to write the statement, after which she went over the entire statement with defendant. Defendant was sitting next to ASA Kinnerk as she read the statement out loud to him. Defendant made corrections to the statement as she read. After all corrections had been made, both she and defendant signed the statement, a copy of which she identified at the hearing. ASA Kinnerk denied that she or anyone else made any promises to defendant if he admitted to participating in the shooting. She also denied telling defendant that he would be or may be charged with manslaughter.
On cross-examination, ASA Kinnerk testified that she arrived at the station at 7 p.m., at which time she learned that defendant had been in custody at another police department on a different matter prior to being brought to the Mount Prospect police station. When she first spoke with defendant at 8 p.m. in Detective Belmonte's presence, defendant denied any involvement in the shooting. After that initial conversation, she and Detective Belmonte left the room and did not return until defendant's cousin was available to speak with him. ASA Kinnerk indicated that during her second conversation with defendant, there was a discussion of possible charges for the shooting, but that she told defendant involuntary manslaughter was not a possible charge. Defendant asked her what the shooter would be looking at and she told him first degree murder. He then asked about second degree murder, to which she responded that there was no second degree murder charge in Illinois and that one can only be found guilty of second degree murder after first being found guilty of first degree murder with some mitigating circumstances. Defendant then asked about manslaughter, to which she responded that involuntary manslaughter did not apply to a gang-related, drive-by shooting. ASA Kinnerk then showed defendant in her statute book that drive-by shootings were under the first degree murder heading. Defense counsel then asked ASA Kinnerk whether "it seemed to [her] as though Mr. Jajou was suggesting to [defendant] that he should take responsibility for the shooting which occurred." An objection to that question was sustained by the court. ASA Kinnerk testified that they never discussed the charges after that initial inquiry by defendant.
On redirect, ASA Kinnerk testified that prior to her interview with defendant, she was aware of statements that had been made by the two co-defendants, both of which implicated defendant as the shooter. She also testified that it was defendant's questioning which led to her explanation of the various charges of first degree murder, second degree murder and manslaughter.
Defendant then testified on his own behalf that after he denied shooting the victim, Detective Belmonte came into the interview room and told him that he was being charged with murder and said, "your boys ratted on you." ASA Kinnerk then arrived and introduced herself. They talked, and then Jajou was brought in. Defendant testified that Jajou was his cousin but was not involved with any gang. Detective Belmonte and ASA Kinnerk were both present while defendant and Jajou talked. Afterwards, ASA Kinnerk told defendant she would try to charge him with involuntary manslaughter if he changed his story. Defendant and ASA Kinnerk then had a private conversation, during which they discussed the facts of the victim's shooting, after which, defendant agreed to sign a statement. Defendant testified that ASA Kinnerk helped him make the statement seem like involuntary manslaughter and that her statements gave him hope, which is why he signed the statement.
On cross-examination, defendant testified that he thought his cousin was telling him to take the rap. He could not remember whether ASA Kinnerk explained to him the difference between first and second degree murder but did remember looking at the statute book with her. Defendant did not recall whether he was given a choice of having a handwritten or court-reported statement but did recall choosing a handwritten one. He testified that he read the statement before signing it in several places and acknowledged that the statement indicated that it was freely and voluntarily given, and that no promises had been made in connection with it.
At the close of the evidence, the court found that defendant's statement was not the product of psychological or any other type of coercion and that defendant's will was not overborne in any way. The trial court also found that there were no promises made to defendant regarding involuntary manslaughter and denied defendant's motion to suppress the statement.
The first State witness to testify was Stephanie Griffin. On April 24, 1999, at approximately 12:30 a.m., she was a front-seat passenger in a white Lincoln that was en route to an Amoco gas station. Dareth Womack, the victim, was driving. She knew that Dareth was a member of the Gangster Disciples. At some point, a red pickup truck containing three people pulled up beside them. The driver of this truck, his front seat passenger and the passenger in the bed of the truck all appeared to be male Hispanics. The individual in the bed of the truck threw up a Latin Kings sign. At that time, according to Griffin, the Latin Kings and the Gangster Disciples were rivals.
Dareth continued driving until they reached the gas station, and the red pickup truck followed them. Dareth told her he was not going to do anything because she was in the car, so he turned to his left and waved to the men in the truck. Stephanie described this wave as "sarcastic." Within 30 seconds three shots were fired from the truck into their car, one of which struck and killed Dareth. Stephanie jumped out of the car and ran into the mini-mart at the gas station and informed the clerk that her friend had just been shot. The police were notified and came to the gas station. Although Stephanie viewed a lineup, she was unable to identify anyone.
Officer Paul Settecase of the Glenview police department testified as an expert witness on gang crimes. In April of 1999, the Latin Kings and the Gangster Disciples were rivals. Officer Settecase testified that based upon his experience, defendant was a member of the Latin Kings at the time of the shooting, and the victim was a member of the Gangster Disciples.
Detective Belmonte's trial testimony was substantially the same as his testimony at the pretrial hearing. On April 24, 1999, he was contacted by the Glenview police department, which informed him that they had a suspect in mind who might have some connection to the shooting. After speaking with that suspect, Detective Belmonte began searching for two other suspects, one of whom was defendant. Later that evening, Detective Belmonte and ASA Kinnerk had a 30-minute conversation with defendant, after which, defendant wanted to know with what crime the shooter could be charged. When ASA Kinnerk told him first degree murder, defendant asked about second degree murder and involuntary manslaughter. ASA Kinnerk then informed defendant that a person could not be charged with second degree murder unless he was first convicted of first degree murder and that involuntary manslaughter did not apply. ASA Kinnerk then pulled out her Illinois Compiled Statutes book and circled the section related to drive-by shootings, which was under the first degree murder section of the statute. Defendant then asked to speak to his cousin, Jajou. Subsequent to that conversation with Jajou, defendant spoke with ASA Kinnerk alone, and Detective Belmonte had no further conversation with defendant.
On cross-examination, Detective Belmonte testified that although he knew Jajou to be defendant's fellow Latin Kings gang member, he did not know whether he was the "head" of the Latin Kings on the north shore. He also testified that prior to the initial interview with defendant, he and ASA Kinnerk had discussed interviews he had with the co-defendants who were in custody, and that he told defendant what his co-defendants had said about his involvement in the shooting. He testified that he heard ASA Kinnerk explain the charge of involuntary manslaughter after defendant inquired about it.
ASA Kinnerk's trial testimony was consistent with her pretrial testimony. Initially, when she first spoke with defendant at 8 p.m., he denied involvement in the shooting. Defendant then inquired about the charges the shooter would be looking at, and ASA Kinnerk explained them to him. Defendant then asked to speak to his cousin, Jajou. After his cousin spoke to him and left the room, defendant began to cry. Defendant then stated that he would tell ASA Kinnerk what happened, but that he did not want to talk to any policemen. ASA Kinnerk relayed that information to Detective Belmonte, and he left her alone with defendant. They spoke for approximately one hour, after which ASA Kinnerk asked defendant if he wanted to memorialize his statement in handwritten or court-reported form. Defendant chose a handwritten statement, and ASA Kinnerk subsequently wrote out the statement, which she reviewed with defendant. After having the opportunity to make corrections to the statement, defendant signed the statement on each page.
On cross-examination, ASA Kinnerk denied telling defendant that she would help him or that she would charge him with manslaughter.
Defendant's statement was then published to the jury as follows: On April 23, 1999, defendant was a member of the Latin Kings gang as a soldier and he had gotten a gun from a fellow Latin Kings. Co-defendants Negrete and Holman, who were also Latin Kings, knew that he had the gun, and the three of them decided to ride around their neighborhood in Holman's red truck. Defendant was working security and sat in the bed area of the truck. They drove around their neighborhood, and when they did not find any rival gang members, they decided to drive into rival gang (Gangster Disciples) territory. Defendant then saw a white Lincoln automobile driven by a member of the Gangster Disciples that he knew as Mashod (Dareth Mashod Womack) pulling into a gas station. Defendant saw Mashod throw up the pitchfork, which was a sign of disrespect to defendant, who responded by throwing down the pitchfork. Mashod responded by dropping the crown, which meant "king killer," and defendant represented back with a crown up. Holman then pulled the truck around the corner and Mashod pulled his car towards one of the pumps at the gas station. Defendant assumed that Mashod was "strapping," meaning carrying a gun, so defendant fired three shots in the direction of Mashod's car. Defendant never saw ...