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People v. Westmorland

March 30, 2007

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLANT,
v.
JOSH L. WESTMORLAND, DEFENDANT-APPELLEE.



Appeal from the Circuit Court of Kane County. No. 05-CF-583 Honorable Timothy Q. Sheldon, Judge, Presiding.

The opinion of the court was delivered by: Justice O'malley

The State appeals the judgment of the trial court granting the motion of defendant, Josh L. Westmorland, to suppress as involuntary the statement he gave to police while in custody on March 15, 2005. We affirm, finding that defendant's statement was involuntary under the totality of the circumstances.

BACKGROUND

Defendant, who was born on January 8, 1988, was charged with various sexual offenses that allegedly occurred on March 6, 2005. Defendant filed a motion to suppress, asserting that his confession to police was coerced by their threats and inducements and by their refusal of his request to phone his mother or a lawyer prior to his interrogation. Defendant further asserted that he "did not make a knowing and intelligent waiver of his Miranda Rights." See Miranda v. Arizona, 384 U.S. 436, 16 L.Ed. 2d 694, 86 S.Ct. 1602 (1966).

At the hearing on the motion to suppress, the State called Detective John Galason of the Carpentersville police department. Galason testified that, on March 15, 2005, between 11 and 11:20 a.m., he and fellow Carpentersville detective Todd Shaver arrived at defendant's house to investigate a complaint that defendant had sexually assaulted several girls. Both men were dressed in casual clothes and arrived in an unmarked squad car. They knocked at the door of the home and defendant answered. Galason told defendant that he and Shaver needed to talk with him and that he was under arrest. Defendant did not ask why he was under arrest and Galason did not volunteer the information. Galason testified that he had not obtained a warrant to arrest defendant. Galason also testified that he did not inquire if defendant's parents were home and made no effort to contact them.

Galason testified that he and Shavers placed handcuffs on defendant and drove him in their squad car to the police station. Galason testified that he did not speak to defendant during the drive, which took about three or four minutes. When they arrived at the police station, defendant was released from the handcuffs and taken to the only interview room in the station. The room was about 10 feet long and 10 feet wide, had fluorescent lighting, and was furnished with a table and two bench seats. The room had one door, which was made of metal and had a single window. The door locked automatically from the outside when shut and a key was needed to exit the room. After defendant was placed in the room, the detectives left him alone for about two to four minutes while Galason retrieved his police reports, paper, and pen.

Galason testified that, when he and Shaver returned, they sat down on the benches with defendant. Galason sat on the same bench as defendant while Shaver sat on the other bench. Galason testified that he read defendant his Miranda rights from a preprinted form. After affirming that he understood the rights, defendant signed a written Miranda waiver. The waiver was completed at 11:30 a.m. Galason testified that, upon finishing the waiver, "[defendant] said he wanted to talk with his mom." Galason replied that defendant was "17 years old and he [did not] have the right to have his mom in the room while we are talking to him." Defendant repeated his request, and Galason repeated his reply. Galason testified that he knew at the time that defendant was 17 years old, because he had run a LEADS check on defendant's driver's license. Galason was also aware that defendant had been a student at a Dundee high school, but he did not believe that defendant was still attending high school at the time.

Galason testified that, after denying defendant's two requests to speak with his mother, Galason said they needed to speak about a case. Galason asked if defendant knew what case Galason had in mind, and defendant replied that it was "one of two things." Galason said, "I am pretty sure you know what case I want to talk to you about." Defendant responded that "it's about what happened with [N.]."*fn1 Galason then remarked that he had spoken to the four female alleged victims and wanted to get defendant's side of the story. Galason testified that defendant immediately began telling his version of the events. Galason stopped defendant at various points for clarification or to point out variances between defendant's account and those of the alleged victims. After defendant finished with his story, Galason obtained a written statement from him. Galason testified that about 60 minutes elapsed between the beginning of the interview and the point when defendant began writing his statement. Galason testified that the tone of the interview was "very casual" and that defendant's physical condition was "fine."

Galason testified that he gave defendant several options on how to produce the written statement, and defendant chose the question/answer method, whereby Galason would ask defendant a question and then transcribe defendant's answer. Galason testified that this process took 30 minutes. After defendant's written statement was completed, Galason left the room and called the State's Attorney, who authorized charges against defendant. Galason then placed defendant in a jail cell. Defendant gave no further statements. Galason testified that the interview with defendant lasted a total of 90 minutes.

Galason testified that, during the course of the entire interview, defendant did not appear to have any difficulty understanding the questions and gave intelligent answers. The interview was "casual," and defendant did not become emotional but remained calm. Galason testified that he asked most of the questions because he had interviewed the alleged victims and was more familiar with the case than Shaver. Galason testified that he neither promised defendant that he would be released if he provided a statement nor threatened that he would be incarcerated if he did not provide a statement. Galason testified that he gave defendant a soft drink during the interview but did not recall whether he gave him anything to eat. Defendant was also allowed to use the restroom. Galason assumed, but could not specifically recall, that he had his firearm with him during the interview. Galason testified that, if he did have his firearm with him, he would not have placed it on the table in the interview room but would have kept it in its holster.

On cross-examination, Galason reiterated that, in response to defendant's request to speak to his mother, Galason told defendant that he did not have the right to have his mother in the room with him during the interview. Galason did not recall whether he told defendant that defendant had no right "to even talk to [his mother]." Galason acknowledged that he had the authority to allow defendant's mother to be present during the interview, but stated that he "didn't want" defendant's mother present. Galason denied that defendant ever requested to speak to an attorney before he gave his statement. Galason also reiterated his denials that he made any promises or threats to defendant in order to obtain the statement. Galason further denied that Shaver made any threats or promises to defendant. Galason testified that he never led defendant to believe that there was a possibility that defendant might not be charged in connection with the victims' allegations. Galason testified that, no matter what defendant said during the interview, he had no intention of releasing defendant before he contacted the State's Attorney regarding charges. Galason also testified that no juvenile officer was present during defendant's interview.

Next, the State called Shaver. Shaver confirmed Galason's account of his and Galason's conduct toward defendant before, during, and after the interview. Significantly, Shaver testified that the tone of the interview was "casual, laid back, mere conversation." Shaver testified that defendant was calm during the interview. Shaver testified that neither he nor Galason made any threats or promises to defendant in order to obtain a statement. Although Shaver testified that it was "possible" that defendant might have been released based on what he told the detectives, Shaver denied that either detective ever led defendant to believe that he would be released if he gave a statement. Shaver further denied that he or Galason told defendant that they "didn't give a shit whether [defendant] gave a statement or not" or that "they would just throw him in a cell" if defendant did not provide a statement. Shaver testified that he kept his firearm in its holster during the interview and never placed it on the table in the interview room. Shaver testified that, after defendant was apprised of and waived his Miranda rights, he asked to speak with his mother. Galason refused the request, saying "something to the effect that [defendant] was old enough to speak with us, that [defendant] didn't need to call his mother." Shaver testified that defendant asked only once to speak with his mother. Shaver denied that defendant asked to speak with an attorney.

Following Shaver's testimony, the State rested, and defense counsel called defendant. Defendant testified that, on March 15, 2005, he was a junior in high school and was living with his mother and stepfather. He testified that he was home alone on that date, when Detectives Galason and Shaver came to his home sometime between 11:30 a.m. and 12 p.m. Galason informed defendant that he was under arrest but did not say why. Defendant was allowed to put on socks and shoes before he left the house with the detectives. Before placing defendant in the squad car, the detectives handcuffed him. On the way to the police station, Galason asked defendant if he knew why he was under arrest. Defendant replied that he had a suspicion. Galason then remarked that he had "talked to all the girls" and that defendant was "in pretty big trouble." Galason also said that they were "going down to the police station *** to be taking this and that." Defendant testified that he was "terrified" by these remarks.

Defendant testified that, when they arrived at the police station, he was released from his handcuffs and placed in a small interrogation room. The detectives left him there for about 20 minutes. He was still "very scared" when the detectives returned. Defendant noticed that both detectives were armed with handguns. Defendant testified that he was the first to speak when the detectives returned, and he made a request to contact either his mother or an attorney. Galason replied, "[W]e are not going to let you do that right now. *** [I]f you don't talk to us, if you don't cooperate, we are just going to put you in the jail cell until you do." Galason also said, "I don't really give a shit if you go to jail or not. I just want my evidence."

Defendant testified that Galason proceeded to advise him of his Miranda rights, and defendant signed a waiver of those rights. Asked if he understood the right to remain silent, defendant replied, "Yes. And I tried to remain silent but they wouldn't allow me the phone call."

Defendant testified that, after he signed the waiver, he made a second request to speak to his mother or an attorney, to which Galason replied, "I am sorry. You are not going to get a phone call." Defendant testified that Galason responded to both requests for a phone call in a raised voice. Defendant testified that he made the requests because he wanted "to get advice as to what to do." Defendant testified that Galason's threat to place defendant in a jail cell unless he cooperated led him to believe that, if he gave a statement, he would be released. Defendant admitted, however, that neither detective expressly told him that he would be released if he made a statement.

Defendant testified that he proceeded to give a statement because he was "scared," "didn't think [he] had a choice in the matter," and "didn't know what to do." Defendant testified that, though he was frightened, he did not cry during the interview. Defendant admitted that he never told the officers that he did not want to speak to them. After he gave the statement, defendant was allowed a phone call, and he phoned his mother. Defendant testified that the interview lasted a total of 90 minutes, exclusive of the 20 minutes he spent alone in the interrogation room. Defendant was given a soft drink and allowed to use the bathroom during the interview. Defendant testified that he had never been arrested before that day.

Prior to the arguments of the parties, the trial court remarked that it felt it "important" to describe defendant's physical characteristics for the record:

"I know that he is 17 year [sic] old. He appears not to be a very mature 17. He strikes the court as being somewhat immature, a little bit pudgy with rosy cheeks. He does not look like a mature high school senior, some of which are already growing beards and muscular.

*** [Defendant] does not appear to be physically mature."

Following the arguments of the parties, the trial court again referenced defendant's physical makeup and now contrasted it with that of Detective Galason:

"The Court observed that Detective Galason was a very imposing figure. He is well over six feet tall. He is well over 200 pounds. He has a military-style crew cut haircut. He is physically fit and muscular. He appears as a dominant personality.

The Court observed that the Defendant *** as [sic] an immature boy. He is pudgy. He is rosy cheeked. He is under six feet tall. He is wide-eyed. He appears frightened. He has no noticeable facial hair."

The trial court determined that defendant's confession was involuntary. After summarizing the testimony of each of the three witnesses, the trial court noted that the voluntariness of a defendant's confession is to be evaluated under the totality of the circumstances. See In re J.J.C., 294 Ill. App. 3d 227, 234-35 (1998). The trial court quoted this court's comment in J.J.C. that "[t]he presence or absence of a parent is a factor to consider when determining the voluntariness of a confession." J.J.C., 294 Ill. App. 3d at 235.

The trial court then set forth its findings of fact. With respect to the credibility of the witnesses and the consistency of their testimony, the trial court remarked:

"All the witnesses appear to be credible witnesses. The testimony of the three witnesses is consistent with the exception that the Defendant requested the right to speak to an attorney. The detective testified Defendant appeared calm. The Defendant testified that he was scared."

The trial court then made the following findings corresponding to the various factors of the voluntariness test:

"Age. In this case the Defendant was only two months past age 16, and he was almost a juvenile.

Education. He testified that he was halfway through his junior year of high school. He appears intelligent. The duration of questioning was one-and-one-half hours. He was given his constitutional rights.

Physical punishment. He was handcuffed in the car and was abandoned in the ...


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