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People v. Nicholas

July 09, 2004


[6] Appeal From The Circuit Court Of Cook County. Honorable Joseph G. Kazmierski, Judge Presiding.

[7] The opinion of the court was delivered by: Justice Reid

[8]  Following a jury trial, Marcel Nicholas was convicted of the first degree murder of his mother. He was sentenced to 35 years in prison. Nicholas argues on appeal (1) that the trial court erred in refusing the instruct the jury on involuntary manslaughter, (2) that the prosecutor made improper arguments before the jury, and (3) that the trial court erred in denying the motion to suppress a confession that was involuntary. For the reasons that follow, we reverse and remand for a new trial.


[10]   Motion To Suppress

[11]   Prior to trial, Nicholas filed a motion to suppress the court-reported statement he made while in custody. There is no dispute that Nicholas was given food, drinks, and cigarettes and otherwise treated fairly by the police while in their custody. Nicholas, after having spoken with his lawyer, invoked his right to remain silent. Nonetheless, he did agree to sign a statement and indicated his willingness to speak with the police.

[12]   At the suppression hearing, Detective McNally testified that he met Nicholas, who was not handcuffed, in an interview room in Area 1. Detective McNally provided Nicholas with water and read his rights pursuant to Miranda v. Arizona, 384 U.S. 436, 16 L.Ed. 2d 694, 86 S.Ct. 1602 (1966). Nicholas indicated that he understood those rights. After some further discussions, Detective McNally testified that Nicholas agreed to talk. According to Detective McNally, Nicholas detailed the fight he had with his mother on the morning of her death. Nicholas also indicated that he hoped the investigation would result in him getting boot camp or probation and that he was hoping for the best. Detective McNally also testified that, in a later discussion, Nicholas incriminated himself. After that statement, Nicholas was formally arrested. Nicholas continued to cooperate with the police in the investigation, indicating where the weapon might be found. No gun was recovered as described. Nicholas later consented to a search of his apartment.

[13]   In further discussions with the police, Nicholas was repeatedly read his Miranda rights by police officers and the assistant state's attorney (ASA). Detective McNally also testified that later Nicholas specifically asked to speak with him and then later with the ASA. This was after Nicholas had consulted with his lawyer and invoked his right to remain silent. In speaking with Detective McNally, Nicholas admitted to lies in his previous oral statement. When speaking with the ASA, Nicholas agreed to a court-reported statement.

[14]   Nicholas claimed the statement was not voluntary. By the time he gave the statement, he had already allegedly orally confessed to the murder twice, but those confessions were not challenged. Nicholas claims the statement was coerced by threats made against him by unnamed officers. After a hearing, the trial court denied the motion and the case proceeded to trial.

[15]   Trial

[16]   On September 24, 1999, Cheryl Foster was sitting in her living room at approximately 5:45 a.m. She was awaiting the arrival of a visiting nurse when she heard a woman scream "no," then heard three or four gunshots. Foster was unable to see anything from her window so she called 911.

[17]   Shunte Thomas, who lived near Foster, was awake at that hour nursing her baby. She heard the front door of her building open, someone yell "please don't" followed by four gunshots. There was a pause between the third and fourth gunshot. When Thomas looked out the window, she saw a woman lying in front of the building by a car. Thomas also called 911, then went downstairs to the floor below and knocked on that apartment door. William Penn, the occupant of that apartment, answered the door and was told about the shooting. Penn and Thomas went down to the first floor to where Nicholas lived with the victim, Diane Jefferson-Nicholas. Initially, no one responded to their knocking. They were still pounding on the door when the police arrived on the scene. Various officers secured the crime scene.

[18]   Officer Ruth Singleton went into the building where Penn and Thomas were pounding on Nicholas' door. Nicholas answered the door and was told that someone had been shot outside the building. The police asked Nicholas if he knew where his mother was. Nicholas told them that his mother had just left to go to a meeting. Nicholas then stepped outside and identified the victim as his mother. She had suffered multiple gunshot wounds to the head, neck and upper chest. Nicholas attempted to go to his mother but was ordered back by the police. When the officers rejoined Nicholas in the apartment, Nicholas wondered aloud how he was going to get to work and who was going to take care of him. Officer Singleton described Nicholas as calm and unemotional. Officer Singleton followed Nicholas into his bedroom and watched him collect a pack of cigarettes and pour himself a glass of liquor. Officer Singleton suggested that Nicholas should call his relatives and tell them what had happened. Nicholas made a phone call, which led to the arrival of a family friend. Nicholas also gave the police a sheet to use to cover his mother's body. Thomas called her husband and asked him to come home. Later, Officer Singleton interviewed both Thomas and her husband and determined that they had prior business dealings with the victim.

[19]   Detectives and forensic investigators recovered four shell casings near the body. It was later determined that they came from the same gun. The police also recovered two crocheted purses in a nearby gangway. The victim's identification, money and other personal items were found in one of the purses, but they were not processed because they were contaminated when the police officers opened them. Though the victim was allegedly on her way to a meeting, her car keys were not located.

[20]   Dr. Tae Nyong An, an assistant medical examiner at the Cook County medical examiner's office, testified that he performed an autopsy. External examination revealed four entry and two exit wounds. The first bullet entered below the right nostril and exited near the left ear. Another bullet entry wound was located but no corresponding exit wound was discovered. This bullet entered on the right side of the neck and lacerated part of the victim's brain and fractured the occipital bone. Another bullet entered the chest on the upper portion of the right breast, fracturing the collarbone, thoracic vertebrae and spinal cord. Yet another bullet lacerated the heart and both lungs on its trajectory through the victim's body.

[21]   Detectives Thomas Benoit and Jean Romic spoke with Nicholas, who agreed to go to their office and help in the investigation. The detectives made arrangement for Nicholas to be transferred to the Area 1 police station. They then conducted further investigation at the coroner's office before returning to Area 1. Detectives Benoit and Romic briefly spoke with Nicholas but wanted to complete other interviews first. They took Nicholas to central police headquarters for a polygraph test at 10 p.m., then brought him back to Area 1 the next day. The interview was then turned over to Sergeant Brannigan and Detective McNally. Detective McNally had previously been assigned to canvas the area of the shooting to search for witnesses. Detective McNally noted that the garbage cans at the building had been emptied since the shooting.

[22]   Detective McNally testified that Nicholas was kept in an unlocked room until he was formally arrested, then the door was locked. Prior to his arrest, Nicholas was allowed access to the restroom so long as a police officer showed him where it was. Detective McNally read Nicholas his Miranda rights. Nicholas discussed the argument he had with his mother but did not incriminate himself in the shooting. Detective McNally let Nicholas use the restroom and provided him with something to drink. After further discussions, Nicholas was given a short period to rest. When the conversations resumed, Nicholas was again read his Miranda rights. Nicholas discussed his return to Chicago and his experiences living in his mother's house. The plan was to rehab an apartment building and allow Nicholas to live there in exchange for acting as the manager.

[23]   Detective McNally testified that Nicholas told him about the fight he had with his mother prior to the shooting. It was an argument about rent and drinking alcohol in her apartment. Nicholas told him he left the apartment through the back door. He retrieved a handgun he concealed underneath a chunk of concrete and walked around to the front of the house. Nicholas approached his mother and fired the gun at her three times in order to scare her. When his mother fell to the ground, Nicholas retraced his steps back to the apartment.

[24]   At the conclusion of the statement, Nicholas was formally placed under arrest. Once arrested, Nicholas said he had hidden the gun inside a television that was in the alley for garbage pickup. Detective McNally testified that Nicholas agreed to show them where the gun could be found. Detectives McNally and Brannigan took Nicholas back to the apartment building but were unsuccessful in searching for the gun, the television or the rock. Nicholas directed the detectives to the spot where he had his confrontation with his mother and pointed to where she had fallen. The detectives provided lunch and cigarettes for Nicholas on the way back to the police station. Nicholas was returned to the interview room. Detective McNally testified that, after Nicholas finished eating, he was again read his Miranda rights. Nicholas gave Detective McNally a more detailed version of the events of the previous Thursday and Friday. Detective McNally indicated that Nicholas was insistent that he was just trying to scare his mother when he fired the gun. Nicholas then signed a consent to search the apartment. Detectives McNally and Brannigan thereafter searched the apartment but found no gun.

[25]   Assistant State's Attorney Lawrence O'Reilly also testified for the State. ASA O'Reilly first met with Detective McNally and reviewed the police reports before meeting with Nicholas. Once he was introduced to Nicholas, ASA O'Reilly claims he read Nicholas his Miranda rights then explained that he was not Nicholas' attorney. According to ASA O'Reilly, Nicholas told him he understood his rights from watching television. ASA O'Reilly claims, despite Nicholas' explanation of the rights, he explained the rights to him.

[26]   Nicholas explained to ASA O'Reilly that he argued with his mother about the rent. According to Nicholas, his mother told him he needed to pay rent or get out. Nicholas went out, got the gun and walked through the basement to reach the front of the building. Nicholas saw his mother walking around the passenger side of the car. He pointed the gun "in her direction" and fired it three or four times. Nicholas ran back into the house, where he claims he looked out the window and saw his mother lying on the ...

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