Appeal from the Circuit Court of Cook County No. 98 CR 9406(02) Honorable Stanley J. Sacks, Judge Presiding.
The opinion of the court was delivered by: Justice Hall
Defendant, Anthony Rosemond, was charged by information with first-degree murder, aggravated arson and intimidation. Co-defendant Christopher Mosely was tried separately and is not a party to this appeal. A third co-defendant, 13-year-old Matthew Wilson, was also charged with these offenses. Following a joint transfer hearing, the trial court ruled that Wilson would remain in juvenile court, while defendant, who was 14 years old, would be tried as an adult.
Following a jury trial, defendant was found guilty of first-degree murder and aggravated arson. On April 18, 2000, he was sentenced to concurrent terms of 26 years' imprisonment for first-degree murder and 10 years' imprisonment for aggravated arson. On the same date, defendant filed his timely notice of appeal.
On appeal, defendant contends that: (1) the trial court erred in admitting the polygraph evidence; and (2) he was denied his sixth amendment right to effective assistance of counsel. For the reasons that follow, we reverse and remand.
Defendant's conviction arose from the death of Zulean Wilson, who died of smoke inhalation resulting from a fire that was set in a three-story building she lived in, located at 7108 S. Rhodes Avenue, Chicago, Illinois. The fire, which was ruled an arson, occurred on August 15, 1997, at approximately 10 p.m.
Prior to trial, the trial court denied defendant's motion to suppress oral and written statements he gave during his police interrogation the day after the fire. In addition, just prior to opening statements, the trial court heard arguments on the State's motion in limine to admit gang evidence. The State claimed that defendant's written statement indicated that co-defendants Mosely and Wilson were members of the Gangster Disciples street gang and that the building was set afire to retaliate against Marlo Fernando, a resident of the building, who repeatedly called the police to report the gang's drug-selling activities that occurred outside the building. According to the State's offer of proof, Fernando would testify that defendant is a member of the Gangster Disciples (GDs) and that the defendant, along with co-defendant Mosely, regularly sold illegal narcotics outside the building.
The trial court ruled that evidence that defendant was affiliated with the GDs would be admissible to establish his motive for following Mosely's demand to set fire to the building. The trial court also ruled that evidence of illegal narcotics sales was admissible as a possible motive, if the State proved that defendant was selling narcotics outside the building or was in the company of Mosely when he sold illegal narcotics. In addition, the trial court granted the State's request to admit threatening statements Mosely made to Fernando immediately before and just after the fire was set. The statements were admitted under the coconspirator exception to the hearsay rule.
At trial, the State's evidence established that the three-story building that was set afire had stores on the first floor and apartments on the second and third floors. State witness Fernando, who lived in a second-floor apartment, testified that approximately two weeks before the fire, some of Mosely's fellow gang members intentionally broke a window of her parked car. When the gang members refused to pay for the window, as Mosely had promised, Fernando began calling the police whenever she saw gang members selling drugs outside her building.
Fernando testified that on the night of the fire, she was in her apartment talking to her friend Leila Ledbetter when she heard, through her open window, a voice she recognized as Mosely's yell three times, "burn this motherf---er down." Fernando looked out her window and saw Mosely standing on the sidewalk under the window. Fernando then opened her front door, which was secured by accordion-type security bars, and saw defendant and Wilson running past the door and down a smoke-filled hallway. Fernando and Ledbetter left the building and exited into an alley.
Fernando testified that when she reached the alley, she saw Wilson standing in the alley laughing. Fernando and Ledbetter went back inside the building to help a woman and her child escape from the building. Fernando testified that when she returned to the alley, Mosely approached and told her that the fire was a GD hit, called her a "b---h," and threatened her life. Fernando testified that after she informed a fireman about Mosely's remarks, the fireman passed the information on to a policeman on the scene, and the policeman took Fernando's name and told her that she would be contacted.
State witness Sergeant Peggy Johnson, an investigator for the Chicago police department's arson investigation unit, testified that based on her interviews with Fernando and Ledbetter, which occurred the day after the fire, she traveled to defendant's home in order to bring him into the police station for questioning regarding the fire. Johnson and a detective transported defendant to police headquarters. Defendant's father, James Rosemond, followed in his own vehicle.
Johnson testified that once they arrived at the police station, defendant was taken to a room in the arson unit and read his Miranda rights. James Rosemond arrived about 10 minutes later and defendant was again read his rights in front of his father. At approximately 10:30 a.m., Johnson began questioning defendant about the circumstances surrounding the fire. Defendant's father and homicide detective Paul Bernatek were both present in the interview room during this questioning. Johnson testified that she asked defendant what his involvement was with the fire and informed him that witnesses had implicated him. Defendant responded that he knew nothing about the fire.
Johnson testified that she continued to speak with defendant and his father intermittently from about 10:30 a.m. to 3:30 p.m. At 3:30 p.m., defendant and his father were taken to a second investigative unit. About 30 minutes later, Johnson received word to come to the second investigative unit and get defendant and his father. Defendant and his father were then brought back to the arson unit whereupon Johnson explained to them what the "results were." *fn1 Defendant and his father were then left alone for approximately half an hour. When the interviewing resumed, defendant admitted his involvement with the fire. Defendant's admission occurred at about 4:30 p.m. or 5 p.m. Johnson testified that she then contacted the State's Attorney's office.
Johnson testified that Assistant State's Attorney (ASA) Paul Pavlus arrived at the police station at about 6:30 p.m., as did youth officer Golden. At approximately 7 p.m., in front of Johnson, Detective Bernatek, youth officer Golden, ASA Pavlus, and his father, defendant again confessed to his involvement in the fire. Johnson testified that defendant stated that he and Wilson retrieved a gas can that was nearly full of gas and used the gas to set the building on fire. Defendant stated that he acted as lookout and that the fire was a GD hit and was set to retaliate against one of the tenants in the building. Defendant's father left the police station at about 9:30 p.m., and defendant's statement was reduced to writing at approximately 11 p.m.
On cross-examination, Johnson acknowledged that defendant's statement was reduced to writing after defendant's father left the police station. She testified that defendant's statement was reduced to writing at that time because ASA Pavlus interviewed other individuals before writing out defendant's statement.
After Johnson finished testifying, a sidebar was held at the prosecutor's request. During the sidebar, the prosecutor argued that the tenor of defense counsel's cross-examination of Johnson left the impression that defendant's confession resulted from the duration of the interrogation and the fact that his father left the police station and not from the fact that defendant confessed after being confronted with the results of his polygraph test. The prosecutor argued that he should therefore be allowed to rebut this impression and explain to jurors the real reason defendant gave the statement. The trial court responded that the prosecutor could bring up the issue in rebuttal if the defendant testified or if "it's brought out through the questioning of the father in some fashion if the father testifies."
ASA Pavlus testified that he interviewed defendant sometime between 7:30 p.m. and 8 p.m. Defendant was with his father. Also present were Johnson, Detective Bernatek, and youth officer Golden. After defendant waived his rights, he gave an oral statement regarding his involvement with the fire. ASA Pavlus testified that before defendant's statement was reduced to writing, he asked defendant how he had been treated by the police. ASA Pavlus asked defendant this question in the presence of defendant's father and a second time out of the father's presence. On both occasions defendant stated that he had been treated fine. Defendant stated that he had been given something to eat and drink, and that he was not threatened or promised anything in exchange for his statement. Defendant also stated that his father did not pressure him into making the statement. ASA Pavlus testified that he spoke with defendant's father alone outside the interview room and asked him how the police had treated his son. James Rosemond responded that his son had been treated fine.
ASA Pavlus testified that from 9 p.m. to 11 p.m., he interviewed various witnesses as well as two individuals who might have participated in the arson. Afterwards, he took defendant's written statement at about 11 p.m. Defendant signed the statement and initialed changes made to the statement. The written statement was read to the jury.
On cross-examination, ASA Pavlus testified that when he received information that James Rosemond was planning to leave the police station, he tried to convince Rosemond to stay at the station. ASA Pavlus testified that he informed Rosemond that he was going to take his son's written statement and that it would be in his son's best interest if he remained at the police station. According to ASA Pavlus, Rosemond responded that he needed to leave the police station to check on his other children.
Testifying for the defense, Rosemond testified that on August 15, 1997, at approximately 8:10 p.m., he received a telephone call from an officer at the third district police station asking him to come to the station to pick up defendant. Rosemond testified that he arrived at the police station at about 8:55 p.m., and after approximately 10 minutes, defendant was released into his custody without any charges. Rosemond testified that he and defendant then returned home. Defendant played cards with his brothers, while he sat on his front porch. Rosemond testified that defendant did not leave his house that night. Shortly before 10 ...