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People v. Nicholas

December 1, 2005

THE PEOPLE OF THE STATE OF ILLINOIS, APPELLANT,
v.
MARCEL NICHOLAS, APPELLEE.



The opinion of the court was delivered by: Justice Fitzgerald

Agenda 8-September 2005.

Modified on Denial of Rehearing; original opinion filed 12/1/05

The defendant, Marcel Nicholas, was questioned and later arrested in connection with the shooting death of his mother outside their apartment. The defendant made a court-reported inculpatory statement 35 hours after his arrest. He was presented to the trial court for a probable cause hearing five hours later, 40 hours after his arrest.

A jury convicted the defendant of first degree murder, and the circuit court of Cook County sentenced him to 35 years' imprisonment. The appellate court reversed his conviction and sentence, holding in part that the delay between the defendant's arrest and presentment violated the fourth amendment and, consequently, that the defendant's court-reported inculpatory statement was inadmissible. 351 Ill. App. 3d 433, 444. After this court granted the State's petition for leave to appeal, we decided People v. Willis, 215 Ill. 2d 517 (2005). There, we held that "People v. Nicholas *** [is] overruled to the extent [it] employ[s] any analysis except voluntariness in evaluating the admissibility of confessions obtained during an unreasonably long delay." Willis, 215 Ill. 2d at 536 n.2.

We must now decide the import of that holding in light of the facts in this case. That is, we must decide whether the 35-hour delay between the defendant's arrest and his court-reported inculpatory statement rendered that statement involuntary and thus inadmissible. We must also decide an ancillary issue: whether certain statements in the prosecution's closing argument constituted plain error. For the reasons that follow, we reverse the appellate court, affirm the trial court, and reinstate the defendant's conviction and sentence.

BACKGROUND

The defendant's parents divorced when he was young, and he initially lived with his mother, Diane Jefferson-Nicholas, in Chicago. Their relationship soured, and he moved to Florida to live with his father. Two months later, he moved back to Chicago and into his mother's apartment in a three-flat on South Prairie Avenue. The defendant's mother insisted that he pay rent and refrain from cursing, smoking, drinking, using drugs, and entertaining women overnight in the apartment.

The defendant found a part-time job as a United Parcel Service loader. On September 23, 1999, he left work and went to a currency exchange to cash his paycheck. He smoked marijuana and returned home, where he drank liquor with friends on the front porch of his building. After walking his girlfriend home, he drank more liquor with a friend on another porch. He returned home at 1:30 a.m. on September 24. He drank more liquor and talked on the telephone to a friend for 2" hours, until 4 a.m. The defendant then fell asleep.

At 5:30 a.m., the defendant's mother knocked on the door to his bedroom to tell him that she had an early meeting downtown. The defendant's mother inquired about the open liquor bottles on his dresser and told the defendant that he owed her $65 for his portion of the rent and the telephone bill. The defendant responded, "I will f-ing give it to you when I am ready." His mother replied that he would have to find another place to live if he did not pay her. The defendant's mother continued to voice her problems with the defendant as she left the apartment. At 5:45 a.m. on September 24, 1999, Cheryl Foster, who lived across the street and a few buildings south of the defendant's building, was waiting in her living room for a visiting nurse when she heard a woman scream "No," and then heard three or four gunshots. Foster could not see outside, so she called 911. Shunte Thomas, who lived on the top floor of the defendant's building, was nursing her infant when she heard someone yell "Please don't," and then heard four gunshots. Thomas looked out her window and saw a woman lying in front of the building next to a car. Thomas also called 911, then went down a floor to tell William Penn about the shooting. Thomas and Penn went down to the first floor and knocked on the door to the defendant's apartment for several minutes. No one answered, and soon the police arrived.

Chicago Police Officer Ruth Singleton joined Thomas and Penn. The defendant eventually answered the door and was told that someone had been shot outside the building. The defendant identified the shooting victim as his mother. He returned to his apartment and asked, "How am I going to get to work?" and "Whose [sic] going to take care of me now?" The defendant added, "Wow, I can't get my hair braided now." Officer Singleton followed the defendant into his bedroom, where he smoked a cigarette and drank a glass of liquor.

The defendant told the police that his mother left the apartment that morning carrying only the black bag recovered near her body. The police found two crocheted purses in a gangway two doors down from the defendant's building. The purses contained the defendant's mother's driver's license, wallet, checkbook, and cellphone. The police also found four shell casings from the same gun near the defendant's mother's body. An autopsy revealed four entry and two exit wounds. One bullet entered below the right nostril and exited near the left ear. Another bullet entered the right side of the neck and lacerated part of the 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. A final bullet entered below the right nipple, lacerated the heart and both lungs, and exited near the left armpit.

Chicago Police Detectives Thomas Benoit and Jean Romic spoke with the defendant, who agreed to go to Area 1 Police Headquarters and to help in the investigation. Benoit and Romic took the defendant to downtown police headquarters for a polygraph test at 10 p.m., then brought him back to Area 1. The next morning, they turned the case over to Sergeant Daniel Brannigan and Detective Daniel McNally.

The defendant was placed in an unlocked interview room. Around 7:30 a.m. on September 25, 1999, Detective McNally read Miranda warnings to the defendant, who waived his rights and agreed to talk to the police. The defendant mentioned an argument with his mother over rent the previous morning, but he did not confess. The defendant was given water during the interview and a soft drink after the interview. He was not handcuffed; he was allowed to smoke and to use the bathroom after the interview. At 9:30 a.m., McNally read Miranda warnings to the defendant. The defendant again mentioned an argument with his mother, then indicated that he would like some time alone; McNally left the room. Around 10:30 a.m., McNally returned and read Miranda warnings to the defendant. The defendant discussed his return to Chicago and his experience living with his mother. He did not confess, but he told the police that he was "hoping for the best" from this situation-namely, some "type of probation or boot camp."

Around 1:30 p.m., Detective McNally returned and read Miranda warnings to the defendant. The defendant stated that, on the morning of the shooting, his mother left the apartment by the front door, and he left the apartment by the back door. He walked through the basement toward the front of the building, where he retrieved a handgun that he had concealed under a chunk of concrete. According to the defendant, he then approached his mother and fired the gun at her three times in order to scare her. When his mother fell to the ground, he retraced his steps back to the apartment "in order to be smart." The police arrested the defendant at 2 p.m. on September 25.

After his arrest the defendant told the police that he had stashed the gun inside a television in the alley, and he agreed to accompany them there to find it. Detective McNally and Sergeant Brannigan took the defendant back to his building, but they could not find the gun. On the way back to Area 1, McNally and Brannigan bought the defendant cigarettes and fast food. When they returned to the police station and the defendant finished his lunch, Detective McNally read Miranda warnings to him, and he gave a detailed version of the shooting. The defendant repeated that he was trying to scare his mother when he fired the gun. The defendant signed a consent-to-search form, and McNally and Brannigan searched the apartment. They found no gun and returned to Area 1 to contact Assistant State's Attorney Lawrence O'Reilly.

O'Reilly talked to Detective McNally and reviewed police reports before meeting with the defendant at 8:15 p.m. As O'Reilly informed the defendant that he would need to read Miranda warnings to him, the defendant recited them back to O'Reilly and indicated that he understood his rights from watching a police program, Cops, on television. He was also given a drink and cigarettes. The defendant explained to O'Reilly that he argued with his mother about the rent. The defendant stated that, on the morning of the shooting, he retrieved the gun and walked through the basement to reach the front of the building. He saw his mother walking around the passenger side of the car, pointed the gun in her direction, and fired it three or four times. He then ran back into the house. When O'Reilly asked the defendant why he shot his mother, he explained that he was hung over and angry.

O'Reilly offered to memorialize the defendant's statement in writing, to a court reporter, or on videotape. The defendant chose to give a handwritten statement, hoping to "get it over with" because he had waited so long for O'Reilly to arrive. Around 9 p.m., before the defendant had recounted anything substantive, a police officer entered the interview room to tell the defendant that an attorney had arrived and wished to speak with him. After the defendant ...


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