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[W] People v. McCord

January 31, 2007; withdrawn April 18, 2007

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,
v.
DONIVAN SIMMONS, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Cook County No. 02 CR 14506-01 Honorable Garritt E. Howard,Judge Presiding.

The opinion of the court was delivered by: Justice Karnezis

Following a jury trial, defendant Donivan Simmons was found guilty of first degree murder and three counts of aggravated battery with a firearm and was sentenced to consecutive terms of 50 years' imprisonment for murder and 10 years' imprisonment for aggravated battery. On appeal, defendant contends: (1) the trial court erred in finding that his statements were attenuated from his unlawful arrest; and (2) the trial court erred in denying defendant the opportunity to present evidence that someone other than he committed the crime. For the following reasons, we reverse.

At about 12 a.m. or shortly thereafter on May 5, 2002, Lashaune Bishop, Fallon King, Deshawn Lewis and Robert Gresham were shot near 1815 Brown Street in Evanston, Illinois. Bishop died as a result of her injuries. The injuries suffered by King, Lewis and Gresham were not fatal. Police officers were unable to recover any of the bullets from the shooting, but did recover nine 9-millimeter shell casings from the street in front of 1745 Brown Street, which was approximately five houses away from where the shooting occurred. All nine shell casings were determined to have been fired from the same weapon. The weapon, however, was never recovered.

ATTENUATION

On Saturday, May 11, 2002, at about 8 p.m., four police officers arrived at defendant's home in Evanston. Defendant resided there with his girlfriend, Lasaundra O'Neal, and their two children. O'Neal let the officers inside and they asked defendant to come to the police station with them. According to the officers, defendant agreed to accompany them and he was transported to the Wilmette police station. At about 8:30 p.m., defendant was briefly interviewed by police officers. After the interview, defendant was placed in a jail cell and his personal property was taken from him. Defendant remained at the police station for the next few days and was interviewed numerous times. When defendant was not being interviewed, he was kept in a jail cell at the police station. Defendant made several exculpatory statements regarding the shooting, but was formally arrested Tuesday afternoon, May 14, 2002, after making an inculpatory statement.

Defendant filed a motion to quash his arrest and suppress his statements. At the hearing on his motion, the State acknowledged that defendant was under arrest Saturday night, shortly after he was brought to the police station, and at that point in time, the officers did not have probable cause to arrest him. The trial court agreed and granted defendant's motion to quash his arrest. Nevertheless, the State contended that defendant's statements were attenuated from his illegal arrest and sought to have them admitted at defendant's trial.

The trial court held an attenuation hearing where the following testimony was adduced. For purposes of clarity, we set forth the testimony in chronological order, beginning with defendant's arrest on Saturday, May 11, 2002.

Saturday, May 11, 2002

At about 8:30 p.m., defendant was interviewed by Lieutenant Demetrius Cook and Detective Jeffrey Jamraz. Detective Jamraz read defendant his Miranda rights before the interview. The officers asked defendant if he knew an individual named Sheldon Morales. Defendant stated that he knew Morales, but did not know him very well.

Defendant testified that he asked to speak with a lawyer and asked to call his girlfriend. According to defendant, officers told him that a lawyer was not necessary and that he would be able to talk to his girlfriend when they were done questioning him.

Sunday, May 12, 2002

Defendant testified that officers did not interview him on Sunday. According to Lieutenant Cook, defendant was not interviewed on Sunday because "we were off Sunday."

Monday, May 13, 2002

Detective Richard Benbow testified that he and Detective Franklin Scarpulla interviewed defendant at about 10:38 a.m. Detective Scarpulla read defendant his Miranda rights. Detective Benbow stated that according to defendant, shortly after 12 a.m. on May 5, 2002, Sheldon Morales and an individual defendant knew as Day-Day were walking north on Brown Street. Both Morales and Day-Day were carrying guns. Defendant saw Morales fire his gun in the northbound direction of Brown Street. Defendant then ran home. About two hours later, Morales came to defendant's home. Defendant told the officers that he was afraid to go home because Morales lived across the alley from him and he had no other place to go. Detective Benbow stated that defendant told them that he would be willing to remain at the police station.

Defendant testified that he asked for a lawyer, but one of the officers replied that a lawyer was not necessary. Defendant also asked the officers if he could go home, but they responded that he could go home after they had all the information they needed from him. Defendant further stated that he asked to see his family and to make a telephone call, but was denied. Defendant denied telling the officers that he would remain at the police station or that he was afraid of Sheldon Morales. Defendant stated that he had seen Morales several times between the night of the shooting and his arrest.

Officer Lou Matthopoulos testified that he and Detective Todd Wolff met with defendant's girlfriend, Lasaundra O'Neal, at about 11:20 a.m. O'Neal told the officers that on the night of the shooting, defendant came home between 11 p.m. and midnight. About 15 minutes later, Morales came over, and then defendant and Morales left. Defendant came home about 15 to 30 minutes later and appeared nervous. Morales came over again about 15 minutes later and Morales also appeared nervous. O'Neal overheard Morales say that "his girl Lashaune had been shot." Morales stayed the rest of the night at their home. The next morning, Morales asked defendant for a children's sock and she saw Morales fill up the sock with bullets. O'Neal further told Officer Matthopoulos that since officers had taken defendant to the police station, several members of the Morales family had telephoned her and were concerned that defendant was talking with the officers.

Detective Benbow testified that he spoke with Officer Wolff at about 1:15 or 1:30 p.m. Officer Wolff informed him that members of the Morales family were very concerned that defendant was talking with police officers. Detective Benbow further testified that he asked defendant if defendant had any other place where he could go besides the police station, and defendant replied that he had no other place to go.

At about 3:15 p.m., Assistant State's Attorney Marshall Libert interviewed defendant. Libert testified that he did not read defendant his Miranda warnings because he believed that defendant was a witness and not a suspect. After the interview, Libert left the room and wrote down defendant's statement. The statement was then admitted into evidence. Defendant's statement implicated Sheldon Morales and Day-Day in the shooting.

At about 3:30 p.m., Officer Wolff met with David Bamberg, who is also known by the nickname Day-Day. Bamberg denied any involvement in the shooting and was released.

At about 4:40 p.m., Lieutenant Cook interviewed defendant. Lieutenant Cook testified that the purpose of the interview was to obtain information sufficient to obtain a search warrant for Morales' home. Defendant told Lieutenant Cook that shortly before the shooting, he saw Morales with a small, black 9-millimeter handgun. Lieutenant Cook testified that defendant did not mention anyone by the name of Day-Day as being involved in the shooting. Lieutenant Cook then prepared a search warrant, which was admitted into evidence. He further testified that he was aware that defendant was afraid to go home, but did not recall which officer had advised him of that.

At about 9 p.m., officers transported defendant to the Skokie courthouse to obtain a search warrant for Morales' home. Lieutenant Cook testified that defendant was not handcuffed and no special precautions were taken in transporting defendant. Defendant testified before a judge, who issued a search warrant for Morales' home. Defendant was then brought back to the Wilmette police station and placed in a jail cell. Just before midnight, officers searched Morales' home. They recovered a gun, which was determined not to be consistent with the ballistics of the gun used in the shootings.

Tuesday, May 14, 2002

At about 9 or 9:30 a.m., defendant was transported to the courthouse at 26th Street and California Avenue to testify before the grand jury. Defendant was not handcuffed and no special precautions were taken to transport him. Defendant's testimony was consistent with his statement to Assistant ...


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