Appeal from the Circuit Court of Cook County. No. O5C6-61126-01 Honorable Michelle M. Simmons,Judge Presiding.
The opinion of the court was delivered by: Presiding Justice Hall
PRESIDING JUSTICE HALL delivered the judgment of the court, with opinion.
Justices Lampkin and Rochford concurred in the judgment and opinion.
Following a jury trial, the defendant, John Anderson, was found guilty of residential burglary. The trial court imposed a sentence of 20 years' imprisonment in the Department of Corrections. The defendant appeals.
On appeal, the defendant raises the following issues: (1) whether the denial of his motion to suppress was error; (2) whether it was error to admit evidence which permitted the jury to find the defendant guilty of an uncharged residential burglary; (3) whether it was error to allow the jury to view a certified copy of the defendant's previous conviction, which contained prejudicial surplusage; (4) whether the defendant's testimony in support of his defense was inadmissible hearsay; (5) whether the prosecutor's remarks in closing argument deprived the defendant of a fair trial; (6) whether it was error to deny defense counsel's request to question the venire to ascertain any bias based on the defendant's prior conviction; and (7) whether the cumulative effect of the alleged errors denied the defendant a fair trial and due process of law. We affirm the defendant's conviction and sentence.
The defendant was charged with a single count of residential burglary. The indictment charged that, on or about September 17, 2005, the defendant entered the residence of Joann Hess with the intent to commit a theft. See 720 ILCS 5/19-3(a) (West 2004). In response to the defendant's request for a bill of particulars, the State identified the date and time of the offense as on or about September 17, 2005, at approximately 2:39 a.m., and that it occurred at or near 12316 Vincennes, Blue Island, Illinois.
As the defendant does not challenge the sufficiency of the evidence, only a brief summary of the evidence at trial is necessary. Evidence pertinent to an issue raised on appeal will be set forth in connection with that issue.
SUMMARY OF TRIAL EVIDENCE
Joann and Jeffrey Hess resided at 12316 Vincennes Avenue in Blue Island. On September 16, 2005, the Hesses attended a party. At approximately 2 a.m., on September 17, 2001, Mrs. Hess returned to their residence and discovered evidence of a burglary: the front door was unlocked, and jewelry, cash and gas cards were missing. After being notified of the burglary, Mr. Hess returned to the residence. As the Hesses stood in their kitchen, a man, later identified as the defendant, entered the residence through the front door and began looking around. When Mrs. Hess cried out that the man was back, the defendant fled the house, pursued by Mr. Hess. Mr. Hess managed to restrain the defendant. The defendant told Mr. Hess that if he did not call the police, he would get the Hesses' property returned to them. The police arrived, and a search of the defendant revealed a set of car keys, which had been on the kitchen counter of the residence when Mrs. Hess left for the party.
The defendant gave a statement to Blue Island police officers. Initially, the defendant had acted as a lookout while a friend of his, Cat Daddy, entered the Hess residence and removed some items. Cat Daddy shared the proceeds with his girlfriend and then told the defendant to return to the Hess residence and see what else he could take. When the defendant returned to the Hess residence, he was confronted by the homeowner. However, at trial the defendant testified that, prior to going to the Hess residence, he had witnessed Mrs. Hess giving a set of keys to Cat Daddy's brother in exchange for drugs. The keys were then given to the defendant who went to the Hess residence only to exchange the keys for $20.
The jury found the defendant guilty of residential burglary. Following the denial of his motion for a new trial, the defendant was sentenced to 20 years' imprisonment. This timely appeal followed.
I. Denial of Motion to Suppress Statement
The defendant contends that the trial court erred when it denied his motion to suppress the inculpatory statement he gave to police following his arrest.
At the hearing on the motion to suppress, the following testimony was presented by the parties.
Bernadine Rzab*fn1 testified that, on September 17, 2005, she was a detective with the Blue Island police department. After reporting for work at 3 p.m., Officer Rzab was informed that the defendant, a burglary suspect, had been taken into custody at approximately 2:45 a.m. that morning. At approximately 4:30 p.m., Officer Rzab and Corporal Kevin Sisk interviewed the defendant.
Officer Rzab advised the defendant of his Miranda rights. She had the defendant read aloud each of the rights from the printed form. As he read each right, she asked if he understood each right. He indicated he did and placed his initials by each right. Both officers signed the waiver of rights form after the defendant signed it.
After signing the waiver form, the defendant agreed to speak to the officers and agreed that his statement could be summarized in writing. The conversation lasted approximately 40 minutes. The defendant appeared coherent and had no difficulty forming sentences. After the defendant gave his statement, Officer Rzab had him review what she wrote, and the defendant agreed it was accurate. The defendant also acknowledged in the statement that he had been treated well while in custody and that he was not forced to make the statement.
When questioned about the defendant's physical condition, Officer Rzab stated that he appeared fine and that there was no change in his physical condition during the interview. The defendant never stated that he suffered from diabetes or that he was taking insulin. She denied that the defendant told her that he needed to take his insulin or that he told her he did not understand the proceedings because he was ill. She never denied medication to the defendant, and there was no discussion regarding the defendant's need to take medication.
On cross-examination, Officer Rzab testified that she was unaware of whether the defendant had been given any food prior to beginning her interview with him. She did not ask the defendant if he needed food. She acknowledged that she was unfamiliar with the defendant's "normal" demeanor. She again denied that the defendant told her he was a diabetic or that he requested insulin. She did not recall telling the defendant that she would help him get insulin after their discussion. Officer Rzab denied that she escorted the defendant to another room to make a telephone call to obtain insulin.
The defendant testified that he was 45 years of age and had been an insulin-dependent diabetic since 1984. He took insulin twice a day, in the morning and the evening. Following his arrest, he was placed in a holding cell at approximately 2:40 a.m. He had no medication with him, and he was not offered any food or anything to drink. He had last taken his insulin the morning of September 16, 2005, and had last eaten around 8:30 p.m. the evening of the 16th.
When he entered the interview room, he was feeling ill; he had a severe headache, cramps, he was sweating, and feeling nauseated. He told Officer Rzab that he was an insulin-dependent diabetic and need his insulin. He also told her that he had some insulin at his godmother's residence. The defendant was not wearing his glasses, which, due to his diabetes, he needed in order to see clearly.
The defendant testified that he repeatedly told Officer Rzab that he was ill and needed his insulin. Officer Rzab responded that once they concluded the interview, she would see about obtaining insulin for the defendant. He did not recall Officer Rzab asking if he wanted his statement in writing, but he did recall Officer Rzab reading the statement to him and telling him that if he signed it, he could make a telephone call to get the insulin. The defendant did not read the written statement.
After the defendant signed the statement, Officer Rzab took the defendant into the squad room so he could telephone his godmother, Elizabeth Broadway. He spoke to Ms. Broadway, but she was unable to bring his insulin to the police station. After he concluded the call, Officer Rzab told him she would see about getting him insulin. The defendant was then returned to his cell. When he was taken to bond court the next morning, he passed out and woke up in the hospital.
On cross-examination, the defendant testified that, while in custody, he had three meals, each consisting of a cheeseburger and a soft drink. The first time he ate was after he signed the statement. The defendant maintained that he signed the statement because he was feeling ill. He acknowledged that, despite not having his glasses, he was able to place his initials on the lines of the form. The defendant pointed out that three of the letters of his signature on the waiver of rights form were not exactly on the line. However, he acknowledged that he signed on the lines, including a slanted line, in three places on his statement.
On redirect examination, the defendant testified that much of the food he consumed while in custody was not good for him. He passed out because he had not taken his insulin since the morning of September 16, 2005. He was able to sign the statement because it was placed right in front of him. On re-cross-examination, the defendant maintained that he was not given a choice of food; he ate because he was hungry.
Corporal Kevin Sisk testified that on September 17, 2005, he was a corporal detective with the Blue Island police department. Officer Rzab and he conducted an interview of the defendant. The defendant did not appear ill during the interview. He appeared coherent and did not have any difficulty communicating during the interview. He made no request of either officer. On cross-examination, Corporal Sisk acknowledged that he was not familiar with the defendant's normal appearance.
The State requested that the trial court take judicial notice that, in bond court on September 18, 2005, the judge set bond but issued a "no body" mittimus for the defendant. The trial court denied the motion to suppress.
In reviewing a trial court's motion on a motion to suppress, we apply a two-part standard. While we will not reverse the trial court's factual findings unless they are against the manifest weight of the evidence, the trial court's ultimate determination is reviewed de novo. People v. Luedemann, 222 Ill. 2d 530, 542, 857 N.E.2d 187 (2006).
In determining whether a confession is voluntary, the court must consider the totality of the circumstances. People v. Gorgis, 337 Ill. App. 3d 960, 970-71, 787 N.E.2d 329 (2003). Factors to be considered include the defendant's age, intelligence, background, experience, mental capacity, education, physical condition at the time of questioning, and any physical or mental abuse by police, including the existence of threats or promises. Gorgis, 337 Ill. App. 3d at 971.
The defendant maintains that the police denied him food, water and medical attention until he provided a confession to the residential burglary charge. The State initially responds that the defendant has forfeited the issue because he did not specifically allege it in his motion to suppress or raise it in his motion for a new trial.
The purpose behind the waiver rule is to ensure that the trial court was given the opportunity to correct any errors before they are raised on appeal. People v. Bennett, 376 Ill.
App. 3d 554, 567, 876 N.E.2d 256 (2007). In support of his motion to suppress and in his testimony at trial, the defendant argued that he was not given any food and was denied insulin until he gave a statement to the detectives. In his motion for a new trial, the defendant alleged that the denial of his motion to suppress was error. In denying the defendant's motion for a new trial, the trial court was clearly aware of the arguments the defendant raised in contesting that his confession was voluntary. As the trial court had the opportunity to consider the defendant's arguments both prior to and after the trial, the issue was not forfeited.
The defendant maintains that evidence established that theofficers withheld insulin, food and water to the defendant until he agreed to give them a statement. While the fact that the defendant was a diabetic was uncontradicted, what is disputed in this case is whether he informed the officers that he was a diabetic and needed insulin. In contrast to the defendant's testimony, the officers maintained that the defendant made no complaints or requests during the interview, never informed them that he was a diabetic and required insulin, and appeared alert and coherent during the interview.
In ruling on a motion to suppress, the trial court must resolve conflicts in the evidence and determine the credibility of the witnesses. Gorgis, 337 Ill. App. 3d at 971. The trial court is in a better position than the reviewing court to assess the credibility and demeanor of the witnesses who testified at the hearing and to assess the relevant facts. Gorgis, 337 Ill. App. 3d at 971. In this case, credibility was the determinative factor in the outcome of the hearing. The trial court resolved the conflicts in the evidence against the defendant. We find no basis in the record for disagreeing with the trial court's credibility determinations. Therefore, they are not against the manifest weight of the evidence.
The cases relied on by the defendant are distinguishable. In People v. Strickland, 129 Ill. 2d 550, 544 N.E.2d 758 (1989), the police were aware that the defendant was injured when he was arrested and did not obtain medical treatment for him until he had given a statement. In the present case, the issue of whether the officers were aware of the defendant's medical condition was resolved against the defendant.
In In re V.L.T., 292 Ill. App. 3d 728, 686 N.E.2d 49 (1997), the reviewing court found the 10-year-old respondent's confession to have been coerced. The evidence established that the respondent, who had no prior experience with police, was taken from her home in her pajamas, was tired and hungry, and despite her request, no one concerned with her welfare was present for her to confer with prior to writing out her confession. V.L.T., 292 Ill. App. 3d at 737. The evidence in this case established that the defendant was a mature man, who never indicated to police that he required food or medical attention or assistance of any kind.
We conclude that the trial court did not err in denying the defendant's motion to suppress his inculpatory statement.
The defendant contends that his burglary conviction must be reversed because he may have been convicted of an uncharged offense. He maintains that the indictment charged him only in connection with his own entry into the Hess residence. He argues that by giving the jury an instruction on accountability, the jury may have convicted him based on evidence that he served as a lookout when Cat Daddy entered the Hess residence. The State responds that the trial court correctly found that the two entries were part of a continuous course of conduct and that the defendant's conduct constituted the singular offense of residential burglary.
Prior to trial, defense counsel filed a motion in limine to bar evidence of other crimes, specifically the reference in the defendant's statement that he acted as a lookout while Cat Daddy entered the Hess residence and removed certain items from the residence.
Defense counsel argued that, based on the defendant's statement, two separate burglaries occurred; one in which the defendant acted as a lookout and the other when he actually entered the residence. Based on the indictment and its answer to the bill of particulars, defense counsel maintained that the State was proceeding only on the burglary in which the defendant actually entered the residence. In response, the prosecutor argued that the defendant's actions in acting as a lookout and his entry into the Hess residence comprised one continuous crime. While the exact time of the defendant's actions could not be ascertained, the prosecutor noted that, according to the defendant's statement, he did not arrive in Blue Island until 2:30 a.m. on September 17, 2005. While trial counsel acknowledged that both entrances to the Hess residence were on September 17, 2005, she pointed out that Mrs. Hess was expected to testify that she discovered evidence of the burglary at 2 a.m. on September 17, 2005.
After reviewing the defendant's statement, the trial court denied the motion. Relying on the defendant's statement, the court determined that the defendant's actions as a lookout and his own entry into the Hess residence constituted a continuous course of conduct. There was no previous ...