Appeal from the Circuit Court of Cook County. Honorable Lawrence Terrell, Judge Presiding.
The opinion of the court was delivered by: Presiding Justice Quinn
Following a jury trial, defendant Aaron Bennett was found guilty of first degree murder and sentenced to 60 years in prison. On appeal, defendant contends that: (1) the circuit court erred in denying his motion to quash his arrest and suppress evidence; (2) the circuit court erred in denying his motion to suppress his statements; and (3) the circuit court erred in barring his expert from presenting testimony regarding defendant's interrogative suggestibility or, alternatively, in failing to conduct a hearing to assess whether the expert's testing was accepted within the field for purposes of admissibility. For the following reasons, we affirm.
Defendant was arrested and subsequently indicted on four counts of first degree murder in connection with the shooting death of Shawn Alexander on November 18, 2002, in Maywood, Illinois. Prior to trial, defendant filed a motion to quash his arrest and suppress evidence alleging that the arresting officer had acted without an arrest warrant, or without probable cause that defendant had committed or was about to commit a crime.
At the hearing on that motion, Maywood police officer Arian Wade testified that on November 18, 2002, he was on patrol in a marked squad car in Maywood, Illinois. At about 6:50 p.m., Officer Wade testified that he was in the area of Eighth Avenue and Pine Street when he received a radio transmission stating that there was a "man down" in the Auto Zone parking lot, located at 710 South 5th Avenue. Officer Wade testified that the transmission also stated that "the offender" was running southbound on 6th Avenue and that he was a black male wearing a black "hoodie." As Officer Wade drove toward the area, he received a second transmission stating that the offender went northbound on 6th Avenue away from the Auto Zone. Officer Wade made a "U-turn" at 6th Avenue and Washington Street, and began driving northbound on 6th Avenue.
Officer Wade testified that as he was driving, he saw a black male wearing a black hoodie run across 6th Avenue and continue running westbound on Pine Street. Officer Wade testified that approximately one or two minutes had passed between the time he heard the radio transmissions and when he saw the individual run across 6th Avenue. Officer Wade identified defendant as the individual that he saw run across 6th Avenue. Officer Wade testified that after seeing defendant, he drove up to defendant and asked defendant to walk over to the squad car. Officer Wade exited the squad car, placed his hand on defendant's chest, and felt that defendant had a rapid heart beat. Defendant then stated, "I didn't shoot anybody." Officer Wade asked defendant what he was talking about, then defendant did not say anything.
Officer Wade testified that he placed defendant in the back of the squad car and drove to the Auto Zone parking lot, which was two blocks from where he located defendant. When Officer Wade pulled into the parking lot, Darryl Watson approached the squad car, pointed to the back of the vehicle where defendant was seated, and stated "That is the one who did this." Officer Wade then learned that Watson was referring to defendant as the individual who shot the victim, Alexander, in the Auto Zone parking lot.
Following arguments on the motion, the circuit court found that Officer Wade acted reasonably based upon the information that he had when he stopped defendant, whom Officer Wade found running in the area and matching the description provided by the radio transmission. While the court noted that the description of a "black male with a black hoodie" was not unusual, the court found that there was probable cause and denied defendant's motion to quash his arrest and suppress evidence.
Prior to trial, defendant also filed a motion to suppress any and all oral or written communications, confessions, statements, or admissions, whether inculpatory or exculpatory, made by the defendant prior to, at the time of, and subsequent to his arrest. In that motion, defendant stated that he was arrested at about 7 p.m. on November 18, 2002, but not brought before a magistrate for a probable cause hearing until 9:30 a.m., on November 22, 2002.
Defendant noted that an incriminating statement was elicited from him about 60 hours into his detention. Defendant argued that this delay violated his right to a probable cause determination by a judicial officer within 48 hours of a warrantless arrest.
At the hearing on defendant's motion to suppress, transcripts from prior hearings were admitted into evidence, including from defendant's motion to quash his arrest and suppress evidence, motion to suppress a lineup identification, and motion to suppress defendant's videotaped confession. The transcripts included the testimony of Officer Wade, previously described. The transcripts also included the testimony of Darryl Watson, who testified that on November 18, 2002, he accompanied his nephew, Alexander, to the Auto Zone, where they obtained a tool to fix a headlight on Alexander's vehicle. While Alexander was fixing the headlight, Watson saw a black male wearing a "Blackhawks jogging suit" approach Alexander from behind and shoot Alexander. The police were called to the scene and Watson testified that he provided police with a description of the shooter and his attire. While at the scene, a second squad car arrived with an individual in the vehicle. Watson testified that he approached the second squad car, saw defendant inside the vehicle, and identified defendant as the shooter. Watson testified that he later identified defendant in a police lineup.
Sergeant James Robinson testified that on November 18, 2002, he was involved in the homicide investigation, in which Alexander was shot in the parking lot of the Auto Zone. Sergeant Robinson testified that just after 7 p.m., Officer Retwell brought defendant into the police station. Sergeant Robinson testified that he immediately realized that defendant had not been read his Miranda rights. Sergeant Robinson testified that he immediately obtained a Miranda rights form, read the form to defendant, and obtained defendant's signature. Sergeant Robinson and Officer Retwell signed the form as witnesses. Sergeant Robinson testified that defendant indicated that he understood his rights and that he would waive his Miranda rights and talk to the police. Sergeant Robinson testified that defendant did not state that he wanted to remain silent or that he wanted an attorney present.
Assistant State's Attorney (ASA) Rob Sparano testified that just before midnight on November 18, 2002, he arrived at the Maywood police station. ASA Sparano and Detective Fortenberry interviewed defendant. Prior to the interview, ASA Sparano read defendant his Miranda rights from a preprinted form. Defendant indicated that he understood his rights, that he agreed to waive those rights, and that he wished to speak with ASA Sparano. Defendant signed the preprinted form indicating that he understood his rights, and included the time and date on the form. ASA Sparano and Detective Fortenberry also signed the form as witnesses. ASA Sparano testified that during the interview, defendant was always responsive to his questions and never indicated that he had any trouble understanding questions. ASA Sparano asked defendant what school he attended, and defendant stated that he attended Pace School. ASA Sparano testified that he was not familiar with Pace School.
Detective Randy Brown testified that at about 4 p.m., on November 19, 2002, he interviewed defendant. After defendant acknowledged and waived his Miranda rights, defendant told Detective Brown that he had been present at the time of the shooting at Auto Zone. Defendant stated that he observed Jerome Gill shoot the victim. Detective Brown indicated that at the time he interviewed defendant, defendant had been in custody for less than 24 hours.
Detective Brown testified that police officers began looking for Gill and located him on the evening of November 20, 2002. On the following day, November 21, 2002, a police lineup was conducted, which included both Gill and defendant. Watson viewed the lineup and identified defendant as the shooter.
Prior to the police lineup, ASA Margaret Menzenberger was summoned to the police station on the evening of November 19, 2002. ASA Menzenberger testified that at about 9:30 p.m., she and Detective Fortenberry met with defendant. ASA Menzenberger advised defendant of his Miranda rights, using the same form that ASA Sparano had previously used. Defendant acknowledged his signature on the preprinted form and his initials after each of the rights listed on the form. Defendant indicated that he understood his rights and that he agreed to waive those rights and talk to ASA Menzenberger. ASA Menzenberger spoke with defendant for about 30 to 40 minutes. ASA Menzenberger testified that she did not attempt to determine defendant's educational level and did not ask him if he could read or write. ASA Menzenberger testified that defendant never appeared unresponsive or unable to understand questions, and defendant was very cooperative and talkative.
After the police lineup, ASA Christopher Bemben was summoned to the police station. ASA Bemben testified that he and Detective Brown met with defendant at the police station between 4 and 4:45 p.m., on November 21, 2002. ASA Bemben advised defendant of his Miranda rights, using a preprinted form, and had defendant read the rights aloud. Defendant indicated that he understood his rights and wished to waive them. ASA Bemben spoke with defendant for 30 to 60 minutes. Defendant stated that he had been treated fine, that he had been allowed to eat, sleep, and use the restroom. ASA Bemben presented defendant with options to memorialize his statement and defendant agreed to have his statement videotaped and signed a consent form to that effect. In the videotaped statement, defendant admitted taking a gun from the closet of his bedroom, approaching Alexander and shooting Alexander in the head. Defendant was presented to the court for a probable cause hearing on November 22, 2002. Dr. Jonathan Kelley, a forensic psychiatrist employed by Forensic Clinical Services for the circuit court of Cook County, testified that he evaluated defendant to assess his ability to understand Miranda rights and his ability to read and understand written waivers and verbal conversations pursuant to a court order. Dr. Kelley testified that his opinion was that defendant was able to understand Miranda rights and would have been able to understand a verbal recitation of his Miranda rights, but likely would not have been able to understand written waivers. Dr. Kelley testified that an earlier report by another forensic psychiatrist, Dr. Timothy Cummings, indicated that defendant tested at the third-grade level for reading and arithmetic abilities and defendant's ability to spell words was similar to the performance of a second-grade student. Dr. Cumming's report also indicated that defendant's range of intellectual potential was at about the third percentile when compared to his peers and that defendant's IQ was about 72. Dr. Kelley testified that he was familiar with the Gudjonsson Suggestibility Scale (GSS) tests. Dr. Kelley testified that the GSS tests related to an assessment of suggestibility and voluntariness. Dr. Kelley testified that his understanding was that when the request is made to address the ability to understand Miranda rights, it applies to the cognitive, knowing and intelligent understanding, rather than the volitional or voluntariness component. Dr. Kelley did not recall ever being asked to examine an individual on the volitional component and had no opinion on the GSS tests.
Dr. Bruce Frumkin was called as a witness by defendant and the State objected, indicating that Dr. Frumkin's testimony would be going beyond the knowing and intelligent waiver issue, and would instead offer an opinion on defendant's suggestibility. The State requested an evidentiary hearing, pursuant to Frye v. United States, 293 F. 1013, 1014 (D.C. Cir. 1923), prior to Dr. Frumkin's testimony regarding the GSS tests administered to defendant and defendant's suggestibility. The circuit court allowed Dr. Frumkin's testimony, over the State's objection.
Dr. Frumkin testified that defendant was learning disabled and attended an alternative high school, Pace High School, for his learning disability. Dr. Frumkin testified that defendant tested in the lower two to three percentile range compared to other people his age, and that defendant is very deficient in verbal intelligence. Dr. Frumkin testified that it would be unlikely that, at the time he was questioned, defendant would have fully understood his Miranda rights. Dr. Frumkin testified that there were psychological factors that may be relevant in the court's determination regarding the voluntariness of the Miranda waiver, but that he did not believe it was appropriate for a psychologist to conclude that a waiver was voluntary or involuntary. Dr. Frumkin also administered the GSS tests on suggestibility to defendant and concluded that defendant was in the 99 percentile range in terms of interrogative suggestibility. Dr. Frumkin described the GSS tests as consisting of presenting the patient with a fact pattern and then questioning the patient regarding the fact pattern. Some questions presented to the patient are designed to be misleading and the test first evaluates how many times the patient yields to the misleading information. The second stage of the test involves confronting the patient, challenging his answers, and again evaluating how many times the patient yields under pressure.
Following the hearing on defendant's motion to suppress any and all oral or written communications, confessions, statements, or admissions, the circuit court denied defendant's motion. The court found that defendant's statements were voluntary and noted that defendant was 18 years old at the time of his arrest, he had received food and was allowed to sleep, and defendant was not questioned for extended periods of time. The court also noted that the testimony at the hearings indicated that defendant was advised of his Miranda rights and never expressed any resistance to continuing to speak to the police. There was also no evidence that defendant was abused or mistreated by the police. The court noted that defendant gave a different version of events which prompted the police to investigate the leads given to them by defendant. The court found that the delay in presenting defendant for a probable cause hearing was to follow up on this information that defendant provided to the police. The court further noted that defendant was willing to cooperate in the ongoing dialogue with the police and began talking with the police immediately after having been advised of and waiving his Miranda rights. The court concluded that the delay in presenting defendant for a probable cause hearing did not change the voluntary nature of defendant's statements.
Finally, the State filed a motion in limine to preclude Dr. Frumkin from testifying at trial regarding his assessment of defendant's interrogative suggestibility. The State argued that the tests utilized by Dr. Frumkin and the theories he espoused have been rejected by the scientific community as unreliable and not valid. Alternatively, the State requested that the matter be set for a Frye hearing where the court could hear from employees of the Forensic ...