The opinion of the court was delivered by: Chief Justice McMORROW
Docket No. 87645-Agenda 2-September 2001.
Following a jury trial, the defendant, Richard Morris, was convicted of first degree murder (720 ILCS 5/9-1(a)(1) (West 1994)), aggravated vehicular hijacking (720 ILCS 5/18-4(a)(3) (West 1994)), and aggravated kidnapping (720 ILCS 5/10-2(a)(3) (West 1994)). At a subsequent death penalty hearing, the same jury found defendant eligible for the death penalty and further found that there were no mitigating factors sufficient to preclude the imposition of a death sentence. Accordingly, the trial court sentenced defendant to death on the first degree murder conviction. The trial court also sentenced defendant to 30 years' imprisonment for aggravated vehicular hijacking and to a consecutive term of 15 years' imprisonment for aggravated kidnapping. Because defendant was sentenced to death, his appeal was brought directly to this court. Ill. Const. 1970, art. VI, §4(b); 134 Ill. 2d R. 603. *fn1
Testimony at trial established the following facts. Around 7:40 a.m. on Saturday, December 2, 1995, Judith Dean was driving westbound on Roscoe Street in Chicago. When Dean stopped at a stoplight at the intersection of Roscoe and Ashland Avenue, she noticed a light-green, clean, shiny car in the left lane slightly in front of her car. The occupants of the car were two young African American men. As she was waiting for the light to turn green, Dean saw four fingers wiggling and moving back and forth between the closed car trunk and the body of the car. The fingers appeared to belong to a black male.
The fingers disappeared only to be replaced by a ratchet handle. Like the fingers, the ratchet handle was moving back and forth. The traffic light then changed to green, and the shiny green car proceeded west on Roscoe. Dean turned right onto Ashland and pulled into a gas station, where she called 911. Later that night, Dean heard on the 10 p.m. news that there had been a carjacking and a body found in Roscoe Village. Dean again called 911 and told the dispatcher what she had seen that morning.
At 7:45 a.m. that same day, Chicago police officers Stephen Lotts and Michael Lopresti were driving westbound on School Street in Chicago. At the intersection of School Street and Paulina Avenue, Lopresti observed a silvery, bluish-green car traveling southbound on Paulina. The car, a 1995 Chevrolet Impala, traveled through the intersection and continued southbound on Paulina. Lopresti made a left turn onto Paulina. The driver of the Impala, later identified as defendant, parked the car at 3250 N. Paulina. Lopresti stopped his squad car slightly behind the Impala. Two men, defendant and his co-defendant, Tywon Knight, got out of the Impala and walked across the street in front of the squad car. As they were walking past the squad car, defendant and Knight made eye contact with the officers and gave the officers a look that Lotts characterized as "one of surprise and shock, and fear when they saw us." Defendant and Knight continued walking until they reached the curb that was in front of an alley. Defendant and Knight then began to run eastbound into the alley.
Officers Lotts and Lopresti exited their squad car and gave chase. Knight was apprehended at 7:48 a.m. Lotts stayed with Knight until a squad car arrived to transport him to the police station. Lotts then returned to the car parked at 3250 N. Paulina and called in the license plate-ETM 734. Meanwhile, Lopresti continued to chase defendant. Several other officers joined Lopresti in the chase. At 7:50 a.m., Lopresti pulled defendant from a pile of construction debris in a garage. Lopresti handcuffed defendant and had another officer transport him to the police station.
Also on Saturday, December 2, 1995, Officer Robert Hanrahan was working a 7 a.m. to 3:30 p.m. shift. Around 7:50 a.m., Hanrahan received a dispatch to go to an alley at 1830 West Newport to respond to a call of a man shot. When Hanrahan arrived on the scene at 7:53 a.m., he discovered a man lying on the ground bleeding profusely from the head. Hanrahan took the victim's wallet out of his pocket and learned that his name was Ervin Shorter. Hanrahan broadcast Shorter's name over the radio to the other district officers.
At 8:10 a.m., Officers Lotts and Lopresti learned that the Impala was registered to Ervin Shorter. Having heard the registration information over his radio broadcast, Hanrahan radioed Lotts and Lopresti and told them that the victim of the shooting was the owner of the automobile they were inquiring about. The following day, December 3, 1995, Dean identified the Impala as the car she had observed at the intersection of Roscoe Street and Ashland Avenue.
The victim, Ervin Shorter, was a 58-year-old employee of the City of Chicago. Shorter worked as a laborer with the Department of Streets and Sanitation. In December 1995, Shorter worked a 10 p.m. to 6 a.m. shift.
Shorter was killed by two gunshot wounds to the head. One bullet had lodged in the rear of Shorter's skull. The other bullet had traveled through the brain, exited near the left ear, penetrated the left upper arm, and then fell out of that wound. Police officers recovered this bullet from the scene of Shorter's murder. In addition, when officers traced the route of the chase, they recovered a set of keys to Shorter's car, a .357 Magnum revolver with two fired shells, three live rounds and one empty chamber, a fully loaded .32-caliber chrome-plated revolver, and a green glove. Officers also discovered a shoe impression next to the .357 Magnum.
Both the bullet recovered from the scene of Shorter's murder and the bullet recovered from Shorter's body were fired by the .357 Magnum. The green glove found along the chase route matched a glove recovered from defendant at the police station. The design pattern on the bottom of defendant's gym shoe was similar to the design pattern observed in the shoe impression next to the .357 Magnum, although no individual characteristics were present which would support an opinion as to a match.
Following his arrest, defendant signed a statement in which he admitted his role in the crime. Defendant's statement was introduced into evidence at trial. In his statement, defendant indicated that he was 22 years old and was married to Lyda Antia. On December 2, 1995, defendant, Lyda, and defendant's friends, Tywon Knight and "Taz" (Brian Hoover), drove in Knight's Buick Park Avenue from Kenosha, Wisconsin, to University Park, Illinois. Knight told defendant that they could get a pistol in University Park. As they were driving, defendant, Hoover and Knight discussed robbing a bank. Defendant had some problems in Kenosha and needed money so that he could hide out with his uncle in Atlanta.
When they arrived at University Park, defendant, Hoover and Lyda waited in the car while Knight went into a home and got a pistol. They then drove to another home and fell asleep. Early the next morning, they left and headed toward Chicago. The plan was that Lyda would go into a bank and check out the security cameras. Hoover would get the money, while defendant and Knight, who had guns, kept everyone at bay. As they were driving, they pulled off the Dan Ryan expressway at Garfield Boulevard. They saw a new Chevy Impala in a Kentucky Fried Chicken parking lot. Defendant said he thought the owner of the Impala was a drug dealer and suggested that they rob the owner of his money and his car. Knight pulled into the Kentucky Fried Chicken parking lot and pulled alongside the Impala. Defendant awakened Lyda and told her to drive Knight's car.
Hoover and Knight had guns and got into the Impala with the owner between them. Defendant got into the back seat of the Impala, and Hoover gave him a .357 to keep the owner under control. Defendant had Knight pull down a street into an alley, got the owner out of the car, and forced the owner into the trunk of the car. Defendant then got into the driver's seat of the Impala with Hoover in the passenger's seat. Knight got into the Buick with Lyda. They got back onto the expressway, eventually exiting at Ashland Avenue. Defendant and Lyda pulled their cars over, and defendant told everyone that he was looking for a place to kill the owner of the Impala and was looking for a bank to rob. Defendant then got into the driver's seat of the Buick with Lyda and had Knight and Hoover follow in the Impala.
Defendant saw some banks on Ashland Avenue, one of which had a banner indicating that it was open from 8 a.m. to noon. Defendant decided they had to find someplace to kill the Impala's owner because the bank he wanted to rob opened in around 20 minutes. Defendant pulled into an alley, stopped the car, got the car's owner out of the trunk and ordered him to his knees. The car's owner began begging for his life, at which point defendant shot him twice. Defendant and Knight got back into the Impala, pulled out of the alley and saw a police car. Shortly thereafter, defendant parked the Impala and the police again drove up. Defendant and Knight jumped out of the car and ran. Defendant left the .357 and the keys to the Impala in the alley as he ran.
Defendant testified at trial. Defendant's trial testimony began with an explanation of the "problems in Kenosha" that had been mentioned in his statement introduced at trial. Defendant stated that, in 1995, he was living in Kenosha with Lyda. At that time, defendant was selling drugs. In early November 1995, defendant paged a man named Fred Jones in order to buy some cocaine. Jones came to defendant's apartment and sold defendant an "eight ball" for $175. Defendant then sold portions of the eight ball to his customers. Defendant's customers complained that the cocaine was bad.
Defendant paged Jones again on November 30, 1995. Jones came to defendant's apartment with another eight ball. Lyda and Hoover also were home at the time. Jones went into the living room and defendant went into the kitchen to get a scale. As defendant was getting the scale, Lyda came running out of the living room toward him with a look of fear on her face. Jones was running behind Lyda trying to grab her. Defendant thought Jones was about to stick him up, so he grabbed Jones, put him in a bear hug, and wrestled him into the living room. Defendant slammed Jones onto the living room floor, and Hoover hit Jones in the head with a golf club. Defendant went back into the kitchen to check on Lyda. When defendant returned to the living room, Hoover was still hitting Jones in the head with a golf club. Defendant put a towel around Jones' neck and strangled him.
When they determined that Jones was dead, defendant and Hoover wrapped his body in blankets with a cable cord and put it into a hall closet. Defendant also took a .357 from Jones' pocket. Defendant, Hoover and Lyda then walked over to Knight's house and Hoover got Knight's car keys. Hoover and defendant put Jones' body into the trunk of Knight's car. Defendant, Hoover and Lyda then drove from Kenosha to Chicago, stopping at a grocery store to buy lighter fluid.
Hoover and defendant agreed that they had to get rid of Jones' body and that the best way to get rid of it would be to burn it. They drove to an alley, where defendant and Hoover poured lighter fluid on the blankets and the body and then lit the lighter fluid. Defendant guessed it was after midnight on December 1, 1995, at this point. Hoover, defendant and Lyda then drove back to Kenosha and picked up Knight. The next morning, Knight drove Hoover, defendant and Lyda back to Illinois.
Defendant stated that it was Hoover who suggested that they rob a bank. Before they found a bank to rob, they got off an expressway onto Garfield Avenue and saw Ervin Shorter's car at a Kentucky Fried Chicken restaurant. Defendant claimed that Hoover, not defendant, suggested that the car's owner could be a highly paid drug dealer and would be easier to rob than a bank. Hoover got out of the car and pointed his gun in the driver's side window of Shorter's car. Shorter moved over, so Hoover went over to the passenger's side and got in while Knight got into the driver's side of the car. Defendant then got into the back seat and took the .357 from Hoover. Hoover asked Shorter to give him the "dope" and the money. Shorter replied that he did not have any money or dope.
Defendant also claimed that it was Hoover's idea to kill Shorter. Defendant said that when they stopped in the alley where Shorter's body was found, Hoover grabbed the .357, opened the trunk and ordered Shorter out. Defendant knew Hoover planned to kill Shorter, so he closed the trunk of the car, walked around to the front of the car, and told Hoover that he was not going to have anything to do with the shooting. Defendant got into the driver's seat of the car and waited for Hoover. While he was waiting, he heard two shots. Hoover then got into the passenger's side and they drove off. Defendant drove for a short time and then pulled the car over. At that point, Hoover got out of Shorter's car and Knight got in. Defendant admitted that he dropped the .357 and Shorter's car keys while the police were chasing him.
Defendant denied shooting Shorter and claimed that he had lied when he confessed in his statement to being the shooter. Defendant explained that when he learned his wife was in custody, he asked a detective if there was anything defendant could do to ensure that his wife would go free. The detective did not promise defendant anything, but told defendant the officers would have to see how the story went. Defendant said he told the officers about the incident in Kenosha, but did not mention Hoover at first. Defendant told the officers that he had killed Fred Jones and also told them that Knight, not Hoover, helped him carry Jones' body out of the apartment. Defendant said that he did not mention Hoover at first because he thought Hoover could take care of Lyda while defendant was in prison. Defendant also lied to police when he told them that he made Lyda watch him beat Fred Jones to death and that he told Lyda she would be next if she said anything to the police. Defendant said that he initially ran from Officers Lott and Lopresti because he wanted to throw away the gun and the car keys.
At the close of trial, the jury found defendant guilty of first degree murder, aggravated vehicular hijacking, and aggravated kidnapping. At the subsequent death penalty hearing, the same jury found the defendant eligible for the death penalty based on his having committed murder during the course of another felony (720 ILCS 5/9-1(b)(6) (West 2000)). The jury also found that there was no factor in mitigation sufficient to preclude the imposition of the death penalty and sentenced defendant to death for the murder of Ervin Shorter. Defendant also was sentenced to consecutive prison terms for aggravated vehicular hijacking and aggravated kidnapping. Defendant now appeals his convictions and sentences, claiming numerous pretrial, trial and sentencing errors.
Defendant's first issue on appeal is that the trial court erred in denying defendant's motion to quash his arrest, to suppress the evidence recovered along the route of the chase, and to suppress his statement to police which was introduced at trial. We first review the circumstances under which defendant made the statement. We then consider the testimony presented at the suppression hearing.
Defendant was interviewed four times at the police station by Detective David Ryan and Officer Thomas Keane. During each interview, defendant stated that he understood his Miranda rights and was waiving them.
The notes of Detective Ryan and Officer Keane revealed that defendant's first interview took place at 2:10 p.m. on December 2, 1995. Defendant stated that he lived in Kenosha, Wisconsin, with his wife, Lyda Antia, and sold drugs for a living. On November 30, 1995, he killed Fred, a drug dealer, because Fred had sold him some bad drugs. Defendant had sold those drugs to his customers, and his customers complained. Defendant choked Fred and beat him to death at defendant's apartment. Defendant forced Lyda to watch the beating and told her that he would kill her if she said anything. Later, defendant burned Fred's body somewhere on the west side of Chicago. Although Fred had a gun, Fred never pulled the gun on defendant. Defendant took Fred's gun.
Defendant said that on December 2, 1995, he, Lyda, Knight and Hoover were driving in Chicago when defendant saw a newer Chevy Impala in a restaurant parking lot near the Garfield Avenue exit to the Dan Ryan expressway. Defendant forced the owner of the Impala, Ervin Shorter, to move to the passenger side of the car. Knight drove the Impala while defendant rode in the back. Defendant instructed Lyda to follow in Knight's car. They drove to the area around Belmont Avenue, where defendant spotted some banks that he wanted to check out in more detail. At some point, defendant put Shorter in the trunk of the Impala. Defendant and Knight drove around looking for a spot to kill Shorter. They forced Shorter to get out of the trunk. Defendant ordered Shorter to kneel. Shorter pleaded for his life and covered his face. Defendant shot him twice. Defendant and Knight got back into the Impala, with defendant driving.
Defendant's second interview took place at 3 p.m. on December 2, 1995. In that interview, defendant gave further details concerning the murder of Fred in Kenosha. Defendant said that he used a four iron golf club to beat Fred. He then took $200 from Fred's body, tied his body with a cable and wrapped it in a blanket. Lyda called Knight to the apartment to help defendant remove the body. Defendant bought two cans of lighter fluid, opened the blanket, and sprayed the fluid directly on the body. Defendant then set the body on fire and threw the cans of lighter fluid on the roof of a nearby school building.
Following Fred's murder, defendant wanted to rob a bank so he would have money to go to Atlanta, where an uncle lived. Lyda was given the job of "casing" the bank. Knight would help and would share in the proceeds of the robbery. They saw a banner on a bank indicating that the bank would open at 8 a.m. Meanwhile, defendant wanted to kill Shorter. Defendant and Knight were driving in the Impala. They pulled into an alley and forced Shorter out of the trunk. Shorter pleaded for his life. Defendant shot Shorter twice. Defendant also told Knight to shoot Shorter because defendant did not want the only bullets in Shorter's body to be from defendant's gun. Knight, however, did not fire his gun.
The third interview of defendant took place at 7 p.m. on December 2. In this interview, defendant stated that Brian Hoover was with Lyda and defendant when they burned Fred's body, and said that Hoover had taken the money from Fred's body. Hoover used some of Fred's money to buy the lighter fluid. Hoover also was along during Shorter's kidnapping and murder. Defendant had not told the officers of Hoover's role in the events because he wanted Hoover to remain free to take care of Lyda.
The fourth interview of defendant took place at 8:35 p.m. In this interview, defendant detailed the group's intention to rob Shorter and use his car in a bank robbery. Defendant also detailed the roles that Lyda, Knight and Hoover were to play in the bank robbery. While they were waiting for the bank to open, defendant told Hoover and Knight that he needed to find a spot to get rid of Shorter. They drove to one alley, then to another. Defendant forced Shorter out of the trunk. Shorter pleaded for his life as he knelt on the ground. Defendant shot Shorter twice. Defendant drove away in the Impala with Knight. Defendant parked the Impala because they had planned to use Knight's car to case the bank.
In addition to his interviews with Detective Ryan and Officer Keane, defendant also spoke with Assistant State's Attorney Steven DiNolfo. DiNolfo first met with defendant around 10 p.m. on December 2, 1995. DiNolfo advised defendant of his Miranda rights, and defendant stated he understood those rights. Defendant then agreed to talk to DiNolfo about the shooting of Ervin Shorter. Defendant spoke with DiNolfo for around 25 to 30 minutes.
DiNolfo interviewed defendant a second time around 12:15 a.m. on December 3, 1995. Prior to this second interview, DiNolfo again advised defendant of his Miranda rights. DiNolfo spoke with defendant for approximately 20 minutes. At the conclusion of this interview, defendant chose to have DiNolfo prepare a handwritten statement. DiNolfo prepared the handwritten statement around 12:45 a.m. Defendant initialed each page of the statement and made corrections to the statement. As noted, this statement was introduced into evidence at trial.
The circuit court held a hearing on defendant's motion to suppress. At the hearing on defendant's motion to suppress, Officer Lotts testified that on Saturday, December 2, 1995, he and Lopresti were wearing uniforms and were in a marked squad car. Lotts said that when defendant and Knight were crossing Paulina, they looked and made eye contact with the officers. Lotts testified that the men had a look of surprise, shock and fear when they made eye contact with him.
When the officers saw defendant and Knight begin running, they parked their squad car and pursued them. Lotts testified that he knew the area had a problem with auto theft, so when he saw the men run into the alley, he believed there was a possibility that the Impala was stolen. At that point, however, Lotts had no information that the car in fact had been stolen.
Lotts temporarily lost sight of the men, but surmised that they had jumped a six-foot-high metal fence when he heard the lock on the fence clanging. Lotts looked in the direction of the fence and saw defendant and Knight crouched in the gangway between two homes on School Street. Lotts yelled, "Stop, police." Defendant and Knights made eye contact with Lotts, then continued running northbound through the alley. Lotts again yelled at the men to stop. Because Lotts was separated from defendant and Knight by a six-foot fence, he ran back out of the alley to Paulina, where he met up with Officer Lopresti. The officers got back into their squad car and saw the men run out of another alley heading westbound toward Henderson. The officers then drove down Henderson. The officers saw a man on the street point toward the direction of 1727 West Henderson. There the officers saw Knight enter a narrow gangway. Lotts and Lopresti got out of the squad car and chased Knight. They were able to apprehend and handcuff Knight.
Lopresti then ran through the backyard of 1727 West Henderson and into an alley, at which point Lotts lost sight of Lopresti. Lotts walked Knight back to Henderson, then radioed for a police car to come and pick up Knight. Lotts ran the license plates on the Impala and, as he was doing so, Lopresti came back to the squad car. Lotts ran the plates around 8:08 a.m.
On cross-examination, Lotts testified that while he was running the plate on the Impala, he was joined by Officer Goldman as well as Officer Lopresti. Officer Goldman said that a citizen had flagged him down because the citizen had seen a hand reaching out from the trunk of a car with the license plate ETM 734. Less than a minute after calling in the license plate, Lotts learned that the owner of the car was Ervin Shorter.
Lotts further testified on cross-examination that prior to the time that he ran the Impala's license plate, he heard over the radio that Officer Hanrahan was being dispatched to the 1800 block of Newport, where a man had been shot. Around 8:10 a.m., Lotts heard Officer Hanrahan radio that he had identified the victim as Ervin Shorter.
Officer Lopresti testified at the hearing on defendant's motion to suppress that, after Knight was handcuffed, he went to an alley in the 1700 block of Henderson looking for defendant. Lopresti met up with Officer Conley. Lopresti and Conley saw defendant hidden behind some garbage cans. Defendant ran out and continued to run even after Lopresti yelled for defendant to stop. Lopresti chased defendant but was unable to catch him. Lopresti then saw defendant hiding under some debris in a garage at 1753 West School Street. Prior to seeing defendant hiding under the debris, Lopresti had not received any information about any crimes committed in the vicinity, had not received any information regarding the Impala, and had not received any information concerning defendant. Lopresti and another officer pulled defendant from the debris and placed him in handcuffs. Lopresti explained that he was detaining defendant to determine why he had been running from the police. Lopresti said there had been a high number of garage burglaries and auto theft in the area. In addition, when defendant and Knight first saw the officers, they looked at the officers very suspiciously with fear in their eyes and did not stop when ordered to do so. Lopresti explained that the neighborhood where the activities took place was a residential, primarily white neighborhood. Defendant ultimately was detained around 7:50 a.m.
On cross-examination, Lopresti testified that immediately after defendant was detained, he heard the dispatcher call Officer Hanrahan with a report of a person shot in the alley at 1830 West Newport. 1830 West Newport is approximately 2 to 2½ blocks from where the chase of defendant had started. Around two minutes later, Lopresti heard Officer Hanrahan over the radio report that the shooting victim was deceased. At 8:10 a.m., Lopresti heard over the radio that the Impala was registered to Ervin Shorter. Lopresti also heard Officer Hanrahan over the radio respond that Ervin Shorter was the victim that he had in the alley.
Following the hearing, the trial court made its findings of fact and conclusions of law. The trial court found that defendant had been taken into custody at 7:52 a.m. on December 2, 1995. The trial court further found that neither officer had knowledge of a particular offense during the chase or apprehension of defendant, nor was the apprehension of defendant based upon a search warrant, arrest warrant or any other legal process. At 8:01 a.m., the officers learned that the Impala was registered to Ervin Shorter. At 8:06 a.m., Officer Goldman told Officer Lotts that a citizen had seen a person's hand coming out of the trunk of an Impala with license plate number ETM 734. Officer Hanrahan was dispatched to a shooting in the 1800 block of west Newport, 2½ blocks from where the Impala had been parked. By 8:10 a.m., Officers Lotts and Lopresti learned that the victim in the shooting was Ervin Shorter.
Based upon the foregoing facts, the trial court found that the stop of defendant was a Terry stop. The trial court further held that there was a sufficient basis for the stop, given the officers' knowledge of the area and their observations of defendant and Knight prior to their detention. The trial court also held that even if it were to find that defendant was subject to a full custodial arrest at the time he was placed in handcuffs, there was a sufficient intervening factor which provided a basis to arrest defendant and Knight.
With regard to the trial court's ruling, defendant argues that his confession should have been suppressed because his detention was an arrest, not a Terry stop, and was not supported by probable cause. In the alternative, defendant maintains that even if his detention was a proper Terry stop, his detention nonetheless was unlawful because the officers had no reasonable suspicion when they stopped him. Finally, defendant claims that his statements should have been suppressed because they were not sufficiently attenuated from his illegal arrest.
A trial court's ruling on a motion to suppress evidence will be reversed only if that ruling is manifestly erroneous. People v. Mitchell, 165 Ill. 2d 211, 230 (1995). However, if neither the facts nor the credibility of witnesses is questioned, de novo review is appropriate. Mitchell, 165 Ill. 2d at 230. Because defendant does not contest the facts or the credibility of the witnesses, we will review this issue de novo.
In support of his claim that the detention was an arrest rather then a Terry stop, defendant notes that he was apprehended by multiple officers, was handcuffed, and was placed in a squad car. Defendant maintains that no reasonable person would feel they were free to leave under the circumstances. Defendant further argues that his arrest was without probable cause because at the time of his arrest, the officers had no reason to believe that a crime had been committed in the vicinity or that defendant had committed a crime. Consequently, defendant contends that because he was placed under arrest without probable cause, the fruits of that illegal arrest-his subsequent statements, confession and the items recovered from the chase route-should have been suppressed.
Before this court, the State concedes that defendant's detention was an arrest. The State argues, however, that the physical items recovered from the chase route were not subject to suppression because they were abandoned by defendant during the chase and were not recovered during the stop of defendant. The State further argues that prior to defendant's statement and confession, the police had probable cause, derived from sources independent of defendant's seizure, to seek defendant's indictment. Therefore, defendant's statements were attenuated from his illegal arrest and were properly admitted into evidence.
As a preliminary matter, we address defendant's claim that the trial court should have suppressed the physical evidence recovered along the route of the chase. The United States Supreme Court has considered the issue of whether a court should grant a motion to suppress evidence thrown away by a defendant shortly before his arrest. See California v. Hodari D., 499 U.S. 621, 113 L. Ed. 2d 690, 111 S. Ct. 1547 (1991).
In Hodari, two police officers in an unmarked police car turned a corner and saw four or five youths, including the defendant, huddled around a small red car. Hodari, 499 U.S. at 622, 113 L. Ed. 2d at 695, 111 S. Ct. at 1549. The youths panicked and fled at the sight of the officers, causing the officers to give chase. Hodari, 499 U.S. at 622-23, 113 L. Ed. 2d at 695, 111 S. Ct. at 1549. Seeing an officer was almost upon him, the defendant tossed away what appeared to be a small rock, later determined to be rock cocaine. Hodari, 499 U.S. at 623, 113 L. Ed. 2d at 695, 111 S. Ct. at 1549. The officer then tackled the defendant, handcuffed him, and radioed for assistance. Hodari, 499 U.S. at 623, 113 L. Ed. 2d at 695, 111 S. Ct. at 1549.
The California Court of Appeals held that the defendant had been seized when he saw the officer running toward him, that the seizure was unreasonable under the fourth amendment, and that the evidence of cocaine had to be suppressed as the fruit of the illegal seizure. Hodari, 499 U.S. at 623, 113 L. Ed. 2d at 695, 111 S. Ct. at 1549. Upon review, the Supreme Court initially held that the defendant had not been seized at the time he dropped the cocaine. Hodari, 499 U.S. at 626, 113 L. Ed. 2d at 697, 111 S. Ct. at 1550. The Court noted that an arrest requires either physical force, such as the laying on of hands, or restraint of movement, or in the absence of physical force, submission to an officer's assertion of authority. Hodari, 499 U.S. at 626, 113 L. Ed. 2d at 697, 111 S. Ct. at 1550. Because the defendant did not stop when pursued by the officer, he was not seized until the officer tackled him. Hodari, 499 U.S. at 629, 113 L. Ed. 2d at 699, 111 S. Ct. at 1552. Consequently, the Court held that the cocaine that was thrown away during the chase was abandoned prior to the seizure and, thus, was not subject to suppression as the fruit of the illegal seizure. Hodari, 499 U.S. at 629, 113 L. Ed. 2d at 699, 111 S. Ct. at 1552.
Here too, defendant and Knight failed to submit to the officers' show of authority and requests to halt. Defendant was not seized until Officer Lopresti pulled him out of the debris and placed him in handcuffs. This seizure occurred after defendant had abandoned the physical evidence along the chase route. Accordingly, as in Hodari, the evidence recovered along the chase route could not have been the fruit of an illegal arrest. The trial court, therefore, properly denied defendant's motion to suppress that evidence.
Having found that the trial court properly denied defendant's motion to suppress the physical evidence, we now consider whether the trial court properly denied defendant's motion to suppress his statements and his confession. As noted, the State concedes, and we agree, that defendant's detention constituted an arrest rather than an investigatory Terry stop.
Under Terry v. Ohio, 392 U.S. 1, 20 L. Ed. 2d 889, 88 S. Ct. 1868 (1968), which has been incorporated into our criminal code (see 725 ILCS 5/107-14 (West 1994)), law enforcement officers may detain and question individuals under certain circumstances where probable cause to arrest is lacking. However, the investigative detention must be temporary and must last no longer than necessary to effectuate the purpose of the stop. People v. Brownlee, 186 Ill. 2d 501, 519 (1999). Consistent with Terry, unprovoked flight from police officers may support a finding of reasonable suspicion to stop an individual and investigate further. Illinois v. Wardlow, 528 U.S. 119, 124-25, 145 L. Ed. 2d 570, 576-77, 120 S. Ct. 673, 676 (2000). If the officer does not learn facts rising to the level of probable cause, he must allow the detained individual to go on his way. Wardlow, 528 U.S. at 126, 145 L. Ed. 2d at 577, 120 S. Ct. at 677.
The officers' initial decision to pursue defendant was justified under Wardlow. Once Lopresti pulled defendant from the debris, however, he did not question defendant, nor did he detain defendant while he investigated further. Rather, he handcuffed defendant and had other officers transport him to the police station in a squad car. In doing so, Lopresti exceeded the bounds of an investigatory stop. See Florida v. Royer, 460 U.S. 491, 501, 75 L. Ed. 2d 229, 239, 103 S. Ct. 1319, 1326 (1983) (proper investigatory stop evolved into more serious intrusion on defendant's personal liberty when detectives moved defendant from airport concourse to interrogation room approximately 40 feet away). As a practical matter, once defendant was handcuffed and transported to the police station, he was under arrest.
Our inquiry, however, does not end there. The determination that an illegal arrest has occurred does not resolve the question of whether a defendant's confession is admissible. People v. Foskey, 136 Ill. 2d 66, 85 (1990). Rather, the relevant inquiry is whether the confession was obtained by exploitation of the illegal arrest or was obtained " `by means sufficiently distinguishable to be purged of the primary taint' " of the illegal arrest. Wong Sun v. United States, 371 U.S. 471, 488, 9 L. Ed. 2d 441, 455, 83 S. Ct. 407, 417 (1963), quoting Maguire, Evidence of Guilt 221 (1959). Factors to be considered in determining whether a confession was the product of an illegal arrest include: (1) the proximity in time between the arrest and the confession; (2) the presence of intervening circumstances; (3) the purpose and flagrancy of the police misconduct; and (4) whether Miranda warnings were given. Foskey, 136 Ill. 2d at 85-86, citing Brown v. Illinois, 422 U.S. 590, 603-04, 45 L. Ed. 2d 416, 427, 95 S. Ct. 2254, 2261-62 (1975). The burden of showing the admissibility of the statement rests on the prosecution. Brown, 422 U.S. at 604, 45 L. Ed. 2d at 427, 95 S. Ct. at 2262.
Here, there is no question that defendant was given his Miranda warnings prior to giving each of his statements and his confession. Although this is a factor to be considered, however, the fact that Miranda warnings were given is not sufficient in itself to purge the taint of illegality. Foskey, 136 Ill. 2d at 86.
With regard to intervening circumstances, the State argues that the presence of intervening probable cause weighs in favor of finding that defendant's confession was attenuated from his illegal arrest. We agree.
The presence of intervening probable cause does not assure in every case that an illegal arrest has not been unduly exploited. See People v. Ornelas, 295 Ill. App. 3d 1037, 1045 (1998); People v. Pierson, 166 Ill. App. 3d 558, 564 (1988), citing United States v. Cherry, 759 F.2d 1196, 1212 (5th Cir. 1985). However, it is an important factor in the attenuation analysis. See Ornelas, 295 Ill. App. 3d at 1045; Pierson, 166 Ill. App. 3d at 564. Here, the development of intervening probable cause occurred almost simultaneously with defendant's illegal detention. Just prior to the time that Officers Lotts and Lopresti noticed and began their pursuit of Knight and defendant, Judith Dean observed a hand sticking out of the trunk of a car with the license plate ETM 734 and called 911. While the officers were pursuing defendant and Knight, Officer Hanrahan was dispatched to an alley where he discovered the body of Ervin Shorter, killed so recently that steam was coming from his head where he had been sweating. Before Officer Lopresti returned from his pursuit of defendant, Officer Lotts had called in the license plate of the Impala. Lotts was joined by Officer Goldman, who told him that a citizen had reported seeing a hand reaching out from the trunk of a car with the same license plate as the Impala. Defendant was arrested before information came back on the plate's registration. Shortly thereafter, Lotts learned that the plate was registered to Ervin Shorter and that Shorter was the victim discovered by Hanrahan.
At this point, the officers had probable cause to connect defendant with the murder of Ervin Shorter. Probable cause exists where the totality of circumstances and facts known to officers is such that a reasonably prudent person would believe that the suspect is committing or has committed a crime. People v. Montgomery, 112 Ill. 2d 517, 525 (1986). The information giving rise to probable cause was obtained independently of defendant's illegal arrest. Indeed, all of the information other than confirmation concerning the registration of the Impala was obtained prior to defendant's illegal arrest and well before defendant's first statement in this case.
Had the officers decided at this time that defendant's initial detention was illegal, they could have released him and then, based upon the probable cause that developed independently of his initial arrest, immediately arrested him again. Under this scenario, there would be no question that defendant's statements and confession would be admissible. It follows, then, that the probable cause that would support a second arrest only minutes after defendant's first arrest also serves to break the causal connection between defendant's first illegal arrest and the statements defendant gave six hours later. As our appellate court has noted, it would place an unreasonable burden on the police to require officers to release an illegally arrested defendant and then, based upon probable cause obtained after the illegal arrest, arrest him again when he reached the sidewalk. See People v. Berry, 314 Ill. App. 3d 1, 17 (2000); People v. Wright, 294 Ill. App. 3d 606, 613 (1998); People v. Lekas, 155 Ill. App. 3d 391, 414 (1987). In the case at bar, the probable cause to arrest defendant for the murder of Ervin Shorter developed independently of defendant's illegal arrest. Moreover, that independent probable cause arose only minutes after defendant's arrest. This is not a case, therefore, where the police illegally arrested an individual and then, during the time of the illegal detention, went out and developed probable cause to support the arrest. Cf. Cherry, 759 F.2d at 1212. Accordingly, under the circumstances of this case, the development of independent probable cause weighs heavily in favor of finding that the taint of defendant's illegal arrest had been purged prior to the time he gave his statements to the police.
The next factor we consider is the proximity in time between defendant's illegal arrest and confession. This court has recognized that the temporal proximity between an arrest and a confession often is an ambiguous factor, the significance of which will depend upon the circumstances of each particular case. People v. White, 117 Ill. 2d 194, 223-24 (1987). For example, on the one hand, in the absence of intervening circumstances, "a long and illegal detention may in itself impel the defendant to confess" and, thus, may constitute a serious exploitation of an illegal arrest. White, 117 Ill. 2d at 224. On the other hand, a lengthy period of detention may be viewed as helping "to purge the taint of a prior illegality by allowing an accused to reflect on his situation, particularly when attended by other factors ameliorating coercion, such as Miranda warnings." Lekas, 155 Ill. App. 3d at 414.
In the case at bar, defendant was illegally arrested at approximately 7:50 a.m. Probable cause to detain defendant developed independently of any illegal police action only minutes later. Defendant was first interviewed at 2:10 p.m., approximately six hours after probable cause to arrest defendant had developed. He was also interviewed at 3 p.m., 7 p.m., 8:35 p.m. and 10 p.m. on December 2, 1995, and at 12 a.m. on December 3, 1995. As noted, probable cause to detain defendant developed independently of any illegal police action only minutes after defendant's arrest. Thus, while defendant was illegally detained for a few minutes, he was immediately thereafter in lawful custody. Approximately six hours of lawful custody then passed before defendant gave his first statement to the police. Therefore, under the facts at bar, to the extent that the passage of time itself impelled defendant's confession, that passage of time-since it was almost entirely during a period of lawful custody-must be viewed as a factor which weighs in favor of finding that the illegality of defendant's arrest had been purged by the time he gave his statements to the police.
The final factor in determining whether defendant's statements and confession were admissible is the purpose and flagrancy of the police conduct. Defendant argues that the police conduct here was flagrant because his illegal arrest was undertaken as a "fishing expedition" in the hopes that detaining defendant would yield evidence of a crime.
Although defendant is correct that illegal arrests have been held to be purposeful and flagrant when undertaken solely to conduct "fishing expeditions" (see Brown v. Illinois, 422 U.S. 590, 45 L. Ed. 2d 416, 95 S. Ct. 2254 (1975)), this is not such a case. In Brown, flagrant police conduct was found where the defendant's arrest was undertaken for investigation and without any probable cause, in the hope that something might turn up, and was effected in a manner calculated to cause fright, surprise and confusion. Brown, 422 U.S. at 605, 45 L. Ed. 2d at 428, 95 S. Ct. at 2262.
Here, in contrast, the evidence does not show that the police were acting upon such an absence of probable cause as to render entirely unreasonable any belief that probable cause existed. The officers' initial pursuit and detention of defendant fell within the parameters of Wardlow. That detention exceeded the bounds of a proper investigatory stop only when defendant was handcuffed and transported to the police station. At that point, however, intervening probable cause had developed. Consequently, there is no evidence that defendant's subsequent statements and confession were the result of flagrant police misconduct.
Considering the totality of the circumstances, we find that the taint of defendant's illegal arrest had been purged by the time he gave his statements to the police. Defendant's statements and confession thus were not the fruit of his illegal arrest but instead were attenuated from that illegal arrest. We therefore affirm the trial court's order denying defendant's motion to suppress.
Ineffective Assistance of Counsel
Defendant contends that he was denied the effective assistance of counsel. Defendant maintains that his trial counsel mistakenly discussed the murder of Fred Jones in her opening statement to the jury and subsequently allowed defendant to testify concerning the murder of Fred Jones, even though the trial court had agreed to exclude that evidence from trial. The following facts are relevant to the disposition of this issue.
Prior to trial, defense counsel filed a "Motion To Bar Use Of Immaterial, Incompetent Prejudicial Evidence" and a "Motion To Bar Use Of Uncharged Crimes Evidence." In the motion to bar use of immaterial, incompetent prejudicial evidence, counsel alleged that Assistant State's Attorney DiNolfo gratuitously included certain immaterial and prejudicial statements in the confession that he transcribed. The statements in question were that defendant lived in Kenosha, Wisconsin; defendant noticed some damage to the trunk of Shorter's car, indicative of an attempt by Shorter to escape; defendant and Knight jumped out of Shorter's car and ran away; defendant left the .357 Magnum and the keys to Shorter's car in the alley; defendant killed Shorter because Shorter saw what defendant looked like; and Shorter cooperated with defendant and did not struggle with him in any way. Defense counsel requested that the trial court redact the statements from the confession.
In the motion to bar use of uncharged crimes evidence, defense counsel alleged that the confession transcribed by DiNolfo contained material extraneous to the crimes charged in the indictment. Counsel claimed that the material was highly prejudicial since "it purports to be the thought processes of Richard Morris relating to another, uncharged crime, namely the robbery of an undetermined bank in Chicago." Defense counsel requested that the portions of the confession relating to the robbery be redacted. Counsel did not reference the murder of Fred Jones in Wisconsin or make any request regarding Jones' murder. After a hearing, the trial court denied both motions. Defense counsel filed no other motions in limine.
At a later hearing, as defense counsel sought to convince the court to ask potential jurors whether they would automatically impose the death penalty if they decided defendant had committed two murders, counsel informed the court that the question was necessary because the court had ruled that evidence of the Jones murder would be admissible. This colloquy followed:
"THE COURT: What have I ruled?
[Defense Counsel]:You have ruled that the Kenosha murder may
THE COURT: Where did you get that?
[Defense Counsel]: I had a motion to bar any mention of the
Kenosha case, Judge. You denied that motion.
THE COURT: No, I didn't. I granted that same motion for Judy
Stewart [co-defendant Knight's counsel] today. You never asked me
to do that. You gave me a statement to read, and I said that the
reasons he said in the statement of why he was coming to Chicago
could come in, but there was nothing about a second murder in
[Defense Counsel]: Judge, there was a separate motion to bar the use of uncharged crimes evidence. You denied that motion. I had a separate motion to bar the use of uncharged crimes, which was the Kenosha murder. You denied that motion as to me.
THE COURT: That may be sometime ago. I don't remember that at all. What about that? Did I do that? That is obviously not going to come in at the guilt or innocence stage.
[Defense Counsel]: Judge, that is the motion that is titled, `Motion to Bar Use of Uncharged Crimes Evidence.' You denied that on the last court date.
THE COURT: That would be at the sentencing phase.
[Defense Counsel]: We were talking at the guilt and innocence phase.
THE COURT: I don't believe so.
[Prosecutor]: The Motion to Bar Use of Uncharged Crimes Evidence, which the Court denied on November 16th of 1998, was referenced regarding Exhibit A, which was the handwritten statement of Mr. Morris. The conduct in that handwritten statement does not describe the events regarding the murder in Kenosha, Wisconsin. It describes the events leading up to and including the murder of Ervin Shorter here in Chicago.
[Defense Counsel]: That was a separate motion. That was a motion to bar the use of immaterial, incompetent, prejudicial evidence. That was a separate motion, Judge.
THE COURT: The way I recall, they both said the same thing. It is not my intention to let in the Wisconsin killing, not at all. I didn't have that impression that that was the thrust of your motion.
[Defense Counsel]: Well, I am glad we cleared that up.
[Defense Counsel]: I am glad we cleared that up.
THE COURT: I am glad you did."
Despite this exchange, when the trial began eight days later on December 1, 1998, defense counsel discussed the murder of Fred Jones in her opening statement to the jury in considerable detail:
"[Defense Counsel]: Ladies and gentlemen, [the prosecutor] just
told you that the evidence will show Tywon Knight and Richard
Morris guilty. But you don't have Tywon Knight to judge. You don't
have Lyda Antia to judge. You don't have Brian Hoover to judge.
You are called here today and in the days to come to render a
judgment on this man and this man alone. This is Richard Morris.
You are called here today and in the days to come to measure his
legal, his moral responsibility for what occurred on December 2nd
of 1995. You are called here today and finally in your
deliberations to determine the degree of his responsibility for
what happened to Ervin Shorter. And when you do that, in the
process of that, you will learn some things. You will learn them
from the evidence. You will learn that Richard Morris did not
shoot Ervin Shorter. You will learn that from this witness box.
Because Richard Morris will tell you that himself.
How did we get to that point, [the prosecutor] asked you. How
did we get to the point where Richard Morris will sit in that
witness box and tell you what happened? He mentioned to you that
Mr. Morris had some problems in Kenosha. Ladies and gentlemen,
[the prosecutor] didn't tell it all to you. *** Three people at a
minimum had a very serious problem on the morning of December 2,
1995 and probably a fourth one as well. Who had that problem? You
have heard mention of Lyda Antia Morris, L-y-d-a. That is Richard
Morris' wife. You are going to hear that they had been married for
some years, legally married. And that is an important fact, the
relationship between Mr. Morris and his legal wife, the woman he
loved. You are going to hear about Brian Hoover who is not here
before you. You are going to hear that he had a nickname. His
nickname was Taz just like the Tazmanian main [sic] Devil. You are
going to hear about Tywon Knight who is seated here before you.
You are going to hear that Richard Morris' family and friends know
him as Peanut. Among the people that Richard Morris knew when he
was growing up was a man by the name of Fred Jones. You have not
heard his name yet. I will tell you now that Fred Jones is an
important person in what happened here in Chicago although he died
violently in Kenosha on November 30.
On November 30 of 1995-well, let me go back even to August of
1995. Richard Morris, Peanut, had known Fred Jones when he was
younger. He had not been in his old neighborhood for sometime. He
will tell you that he went to a video store and he got
reacquainted with Fred Jones. And Fred Jones told Peanut that he
was on his feet. *** But in that conversation between Peanut and
Fred Jones it meant one thing. I am now selling weight. Richard
Morris will tell you what weight is. And he will tell you that he
was interested in someone who could sell him weight of cocaine so
that he could cut that weight into bags and sell it to customers
on the street. You will hear him describe for you and there will
be no dispute from the police that a baller is a dope dealer. ***
You are going to hear from Richard Morris that he did in fact
purchase some drugs from Fred Jones shortly before November 30,
1995. He cut them. You are going to hear about a scale in his
apartment. Remember he is not on trial here because he is a drug
dealer. But you are going to hear him describe this process to
you. And he took those drugs and sold them to customers on the
street and something unusual happened. Peanut's customers were not
happy with him. And he had to refund some of their money because
the rocks they got from him-we are talking about rock cocaine-was
Now, along about this time-and you are going to hear Peanut and
Lyda had an apartment in Kenosha. Along about this time, someone
who is a friend of Lyda's and casually known to Peanut came into
their life and started staying with them and had been staying with
them for a few days. And that person is Taz. And Peanut and Taz
and Lyda talked about this drug business. And Peanut paged Fred
Jones to come to his apartment in Kenosha on November 30 of 1995.
We are talking a period of time roughly thirty-six hours before
Ervin Shorter would die violently in that alley behind Cornelia
You are going to hear Richard Morris tell you that when Fred
Jones came to that apartment, he was wary. He was wary because
Fred had sold him bad drugs. He was wary because he knew that Fred
carried a gun. And in fact, Fred was armed that night. And he
didn't know what was up with Fred. But he had a situation he felt
he had to deal with. You are going to hear that when Fred came to
that apartment, the apartment that he came into was shaped sort of
like a U. On one side of the U was a living room. On the other
side of the U so to speak was a kitchen. When Fred came in that
apartment he went into the living room area. In the living room
area were Taz and Lyda. Peanut went to the kitchen to get the
scale. Before he went to get the scale, he saw the drugs that Fred
had brought because when Fred was paged. He brought drugs with
him. And he will tell you what he thought when he saw the
packaging of the drugs that Fred brought with him. He went to the
kitchen to get the scale. And the next thing he knew his wife came
running out of the living room into the kitchen and right behind
her was Fred. He, Richard Morris, had no idea what had happened in
there. But he will tell you and [the prosecutor] mentioned the
look on Mr. Morris' face when he saw the police, he will tell you
the look on his wife's face as she ran in front of Fred Jones. And
then as he told the police when he was questioned by them on
December 2 and December 3 what happened next happened too fast to
And what happened, next ladies and gentlemen, was a vicious
beating, vicious beating involving a four iron golf club and
strangulation involving a towel. There was blood everywhere. You
are going to hear about cleaning up walls, plastic bags over the
head to prevent the mess from getting any bigger. The mess from
snuffing out a human life. You are going to hear that after all of
this happened, Peanut himself recovered from Fred's body a .357.
And that gun, that .357 is the same gun that roughly thirty-six
hours later killed Ervin Shorter. And you are going to hear more
about that gun. You are going to hear from Richard Morris how Taz
also went through the pockets of Fred Jones and money was found
and other items that you are going to be hearing about. In a very
ironic twist, the money, Fred Jones' money[,] was used in a very
barbaric way against him after he was dead. And you are going to
hear about that. Now, Peanut did not have a car. Lyda did not have
a car. Taz had just gotten out of prison. He did not have a car.
They had among the three of them, they had a mutual acquaintance
named Tywon Knight who is here before you today. And you are going
to hear how they went to Tywon Knight for the purpose of borrowing
his car. Then Taz, Lyda and Richard Morris drove to Chicago. You
are going to hear how they removed the body. They put the body
into the trunk and they drove down to Chicago. You are also going
to hear, ladies and gentlemen, that of these three people, Lyda
Antia, Taz and Peanut, one of them was not familiar with the
Chicago area. You are going to hear that Lyda Antia had family
here. And in fact Lyda Antia's family played some part in the
arrest of Lyda Antia. You are going to hear that Taz had lived
here for sometime. Of the three of them, only Richard Morris was
not familiar with this area. They came to Chicago. They came to
the west side. You are going to hear that Richard Morris, Taz, and
Lyda bought lighter fluid and they bought it I am sad to say with
Fred Jones' own money. They took the lighter fluid. They drove to
an alley. The body in the trunk. When they got to the alley, you
are going to hear that that lighter fluid was put not only on the
outside blanket covering Mr. Jones but also that the blanket was
peeled back and actually poured onto his body and then the body
was set on fire early in the morning hours in an alley on the west
side of Chicago.
The cans were thrown up on to the roof of a nearby school and
you are going to hear that fingerprints were recovered from those
cans, the fingerprints of Richard Morris and the fingerprints of
Taz. Having done all of this, Taz, Peanut, and Lyda got into the
car and went back to Kenosha. *** It was now December 1, 1995,
three years ago today. Peanut turned 25 on that day. And you are
going to hear from him about the use of drugs. You are going to
hear about something called blunts, which is marijuana that is the
middle part of a cigar is taken out and marijuana is substituted
for it. And you are also going to hear there was some drinking of
a French brandy called Alize. That went on [sic] off and on during
the course of the day during the night of the 1st into the early
morning hours of the morning when Mr. Shorter was shot."
In the balance of her opening statement, counsel told the jury that defendant, Taz, Lyda and Knight obtained a second gun in University Park and made plans to rob a bank in Chicago:
"[Defense Counsel]:You are going to hear that Peanut decided he
needed some money and he needed to get away. You are going to hear
that the subject of bank robberies came up. You are going to hear
that at every step of the way [sic] every step of the way from the
minute Richard Morris left Kenosha up until the minute that he
drove away in Mr. Shorter's car after Mr. Shorter was dead, at
every step of the way it was Peanut, Taz, Lyda and Mr. Knight. But
not all of them did the same thing. And it's your determination on
the moral responsibility of Mr. Morris that is at issue in this
[Prosecutor]: Judge, I am going to object. Misstatement of the
THE COURT: Sustained. Moral responsibility is not involved here.
Legal responsibility is."
Defense counsel then detailed the circumstances of Ervin Shorter's kidnapping and the hijacking of Shorter's car. Counsel readily admitted that defendant participated in the kidnapping and hijacking. Counsel also detailed the circumstances of Shorter's murder and defendant's arrest. She admitted that defendant was in the alley at the time of the shooting, but claimed that Hoover shot Shorter. Lastly, counsel ...