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People v. McArthur

Court of Appeals of Illinois, First District, First Division

June 25, 2018

THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee,
v.
JAMARI McARTHUR, Defendant-Appellant.

          Appeal from the Circuit Court of Cook County. No. 10 CR 16598 Honorable Michele McDowell Pitman Judge Presiding.

          JUSTICE GRIFFIN delivered the judgment of the court, with opinion. Presiding Justice Pierce and Justice Mikva concurred in the judgment and opinion.

          OPINION

          GRIFFIN JUSTICE

         ¶ 1 Seventeen-year-old defendant Jamari McArthur was arrested for allegedly engaging in sexual conduct with M.W., an 11-year-old boy. Defendant confessed to the police in writing after having spent 50 hours in custody without a probable cause determination. Defendant filed a motion to suppress his confession arguing that the duration of his detention without a probable cause determination rendered his confession involuntary. The trial court ruled that defendant's confession was voluntary despite the delay. A jury found defendant guilty of the aggravated criminal sexual abuse of M.W. and the trial court sentenced him to four-years' imprisonment. As a result of his conviction, defendant was ordered to register as a sex offender under the Sex Offender Registration Act (SORA) (730 ILCS 150/1 et seq. (West 2014)) for the remainder of his natural life.

         ¶ 2 On appeal, defendant challenges the trial court's ruling that his confession was voluntary and the sufficiency of the evidence presented at trial. Defendant further challenges the constitutionality of SORA and the SORA provision that precludes minors charged under the criminal laws as adults from petitioning to terminate their sex offender registration (730 ILCS 150/3-5(i) (West 2014) (Subsection (i) of Juvenile SORA)). We reject defendant's arguments that SORA and Subsection (i) of Juvenile SORA deprive him of the equal protection of the law and punish him. We affirm the jury's verdict and the trial court's ruling that defendant's confession was voluntary.

         ¶ 3 BACKGROUND

         ¶ 4 On Saturday, August 28, 2010 at 2:57 p.m., defendant was arrested and taken to the Calumet City Police Department. Later that day at 7:53 p.m., Detective Casey Erickson placed defendant in an interview room, read defendant his Miranda rights and presented him with a preprinted waiver form. Defendant said he understood his Miranda rights, initialed and signed the waiver form, and confessed to placing his mouth around the penis of M.W., an 11-year-old boy.

         ¶ 5 Detective Erickson questioned defendant again at 9:20 p.m. that night and defendant offered additional details about the incident. The next day, August 29, 2010 at 1:02 p.m., defendant consented to a mouth swab, placed a call to his grandmother and was not questioned for the rest of the day. On Monday, August 30, 2010, Detective Erickson and Cook County assistant state's attorney Elizabeth Dibler (ASA Dibler) attended four victim sensitive interviews (VSIs) of M.W. and other potential child witnesses. The last VSI concluded at 2:14 p.m. and ASA Dibler met with defendant in an interview room at the police station at 3:45 p.m.

         ¶ 6 ASA Dibler read defendant his Miranda rights and questioned him in the presence of Detective Erickson. Defendant indicated that he understood his Miranda rights and over the course of a half hour, provided a detailed confession and chronological account of the events leading up to, and following, the incident. At around 5:02 p.m., ASA Dibler asked defendant to make a written confession and defendant agreed. ASA Dibler proceeded to summarize defendant's statements in writing on a preprinted form. When completed, defendant read the statement aloud without any difficulty. Defendant asked ASA Dibler to add three sentences to his statement and then signed the statement on each of its four pages. Defendant also signed a picture of himself, taken by ASA Dibler, showing him signing the statement.

         ¶ 7 The next morning, Tuesday, August 31, 2010, defendant was brought before a judge for a probable cause determination. More than 73 hours had passed since the time of his arrest. The judge found probable cause for defendant's arrest and he was subsequently charged with two counts of predatory criminal sexual assault (720 ILCS 5/11-1.40(a)(1) (West 2016)), four counts of criminal sexual assault (720 ILCS 5/12-13(a)(2) (West 2016)) and one count of aggravated criminal sexual abuse (720 ILCS 5/12-16(C)(1)(i) (West 2016)).

         ¶ 8 Defendant filed a motion to suppress his confession, arguing that his time spent in custody without a judicial determination of probable cause was unreasonable and rendered his confession involuntary. The trial court held an evidentiary hearing on defendant's motion and the State called Detective Erickson and ASA Dibler to testify. Detective Erickson testified that he did not bring defendant to court for a probable cause determination until the morning of August 31, 2010 because "we hadn't officially interviewed the victim" and "there was still an ongoing investigation." Detective Erickson testified that he could not schedule VSIs of child witnesses until the afternoon of August 30, 2010, but that defendant was brought before a judge the morning after the interviews were conducted. Detective Erickson could offer "no reason" as to why he did not release defendant before the VSIs were conducted and re-arrest defendant if the victim and child witnesses confirmed the content of defendant's confession.

         ¶ 9 ASA Dibler testified that after attending VSIs on August 30, 2010, she and Detective Erickson placed defendant in an interview room around 3:45 p.m. ASA Dibler read defendant his Miranda rights and defendant provided a detailed statement of his sexual contact with M.W.: defendant was at M.W.'s house on Friday and stayed the night; defendant went to bed around 12:00 p.m., awoke at 1:00 a.m. the next morning and placed his head on M.W.'s stomach; defendant noticed M.W.'s penis protruding from his shorts and put M.W.'s penis inside his mouth for 10 seconds; M.W. woke up, went to the bathroom, returned to the bedroom and slept on the other side of the room. ASA Dibler testified that, outside the presence of Detective Erickson, defendant denied being verbally or physically threatened, or abused, by the police. Returning to the interview room around 5:02 p.m., ASA Dibler testified that she read defendant his Miranda rights and with defendant in agreement, summarized his statements in writing on a preprinted form. Defendant read the completed statement aloud. Defendant asked ASA Dibler to add three sentences after the statement's third paragraph and everyone present signed the statement on all of its pages.

         ¶ 10 The trial court denied defendant's motion to suppress his confession, stating that although the police delayed a probable cause determination, the totality of the circumstances indicated that defendant's confession was given voluntarily. The State proceeded on the charges of predatory criminal sexual assault and aggravated criminal sexual abuse and a jury trial commenced.

         ¶ 11 M.W. testified that he woke up between 10:30 p.m. and 11:00 p.m. on August 27, 2010, and saw that his sister had a sheet over her face. Defendant was laying on M.W. like a pillow, touched his shorts and started licking his underwear for several minutes. M.W. testified that defendant then started "sucking [his] penis." Defendant tried to get M.W. to grab his penis, but M.W. pushed his hand away. M.W. then felt something wet on his leg. Defendant got up and put a sheet over M.W.'s face before going to the bathroom. Upon his return, defendant cleaned up the "wet feeling" on M.W.'s leg and continued to suck his penis. Defendant stopped after a few minutes and M.W. pretended to be asleep. M.W. testified that he told his mother what happened the next morning and defendant was arrested the same day. After giving statements to arresting officers, M.W. testified that his mother took him to St. Margaret's Hospital, where he was examined by Dr. Brett Marcotte. M.W. told Dr. Marcotte that he had not changed his clothes or taken a shower that day. M.W. testified that three days later, he attended a VSI with Dr. Myra West.

         ¶ 12 Defendant took the stand in his own defense and testified to a different version of events. Defendant testified that he spent the night M.W.'s house and fell asleep next to him in a bedroom. At around midnight, defendant testified that he woke up, went to use the bathroom, washed his hands and then went back to sleep. A half hour later, M.W. woke up, hit the defendant, left the room and started walking down the hallway toward the bathroom. When M.W. returned, defendant testified that M.W. went to sleep next to his sister, E.A.

         ¶ 13 Defendant's testimony as to what he said and did while in police custody conflicted with the testimony of Detective Erickson and ASA Dibler. Defendant testified that in his interviews with Detective Erickson, he waived his Miranda rights and denied placing his mouth on M.W.'s penis. Defendant further denied adding the sentences after the third paragraph of his written confession. On cross-examination, defendant admitted to making the statements contained in his written confession and to telling ASA Dibler that he saw M.W.'s penis sticking out of his shorts, that he placed M.W.'s penis in his mouth for ten seconds and stopped sucking M.W.'s penis when M.W. woke up. However, defendant maintained that what he told ASA Dibler was not true.

         ¶ 14 Defendant called Dr. Brett Marcotte to the stand and he testified that he used a standard sexual assault kit to examine M.W. Dr. Marcotte testified that he found no semen on M.W.'s groin and thigh area after performing a black light test of the region and that he skipped step 6 of the sexual assault kit, which required him to perform a penile swab of M.W. Defendant also called police officer Mike Serrano to the stand, who testified that he was assigned to take photographs and collect evidence from M.W.'s home. Serrano collected tissue from each of two trash cans found in the bathroom next to M.W.'s bedroom and a shoe box containing bathroom tissue in a dumpster outside of the apartment. Serrano testified that he sent the evidence he collected to the Illinois State Police Crime Lab for testing.

         ¶ 15 Katherine Sullivan, a forensic biologist working for the Illinois State Police Crime Lab, testified that she received and tested the physical evidence collected in M.W.'s case. When testing M.W.'s boxer shorts for the presence of saliva, Sullivan testified that she expected saliva to have been transferred to M.W.'s boxer shorts after three minutes of licking, but that she found none. Sullivan testified that defendant's mouth swab tested negative for the presence of semen and that a test of the tissue from one of the bathroom trash cans revealed 16 glowing spots under a black light, but that each stain tested negative for semen or saliva. Sullivan noted the absence of a penile swab from the sexual assault kit and testified that penile swabs are tested for the presence of saliva.

         ¶ 16 At the close of the parties' arguments, the jury deliberated and found defendant guilty of aggravated criminal sexual abuse. Defendant filed a motion for a new trial, which was denied. The trial court sentenced defendant to four-years' incarceration in the Illinois Department of Corrections and as a result of his conviction, required defendant to register as a sex offender under ...


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