NO. 4-95-0662
IN THE APPELLATE COURT
OF ILLINOIS
FOURTH DISTRICT
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from
Plaintiff-Appellee, ) Circuit Court of
v. ) Vermilion County
MARQUIS DEAN ROBINSON, ) No. 94CF191
Defendant-Appellant. )
) Honorable
) Thomas J. Fahey,
) Judge Presiding.
_______________________________________________________________
JUSTICE KNECHT delivered the opinion of the court:
Following a jury trial in March 1995, defendant Marquis
Robinson was found guilty of attempt (armed robbery) (720 ILCS
5/8-4, 18-2 (West 1994)); he was acquitted of first degree murder
(720 ILCS 5/9-1 (West 1994)). In July 1995, he was sentenced to
15 years' imprisonment. He now appeals, arguing (1) the trial
court erred in refusing to suppress his confession; (2) he was
not proven guilty beyond a reasonable doubt; (3) he was denied a
fair trial by the prosecutor's comments in closing argument; and
(4) the trial court erred in considering the death of the victim
at sentencing. We affirm.
The evidence of defendant's guilt at trial consisted
primarily of his confession, which he now contends was coerced.
Specifically, he claims he would not have made the statement but
for the State's offer of leniency toward his girlfriend, Deanetra
Brigham. Brigham was arrested at the same time as defendant, and
the police believed she was either involved in the crime or had
purposefully refused to disclose knowledge of the crime. When
the investigating officer, Officer Keith Garrett of the Danville
city police, informed defendant Brigham was being held and why,
defendant suggested Garrett was just "fucking with her" and pro-
claimed Brigham's lack of knowledge or involvement in the whole
affair. Defendant then indicated to Garrett he would agree to
make a statement if Brigham was released. Garrett left the room
and brought Brigham up from the booking area. She was allowed to
enter the room where defendant was sitting and she was then re-
leased. Defendant then confessed his involvement in the crime.
To be admissible, a confession must be given voluntari-
ly. People v. Oaks, 169 Ill. 2d 409, 446, 662 N.E.2d 1328, 1344
(1996). "The test of voluntariness is whether the statement was
made freely, voluntarily and without compulsion or inducement of
any sort, or whether the defendant's will was overcome at the
time he confessed." People v. Clark, 114 Ill. 2d 450, 457, 501
N.E.2d 123, 126 (1986). The voluntariness of a confession is
judged by the totality of the circumstances surrounding its mak-
ing. People v. Melock, 149 Ill. 2d 423, 447, 599 N.E.2d 941, 951
(1992); People v. McDaniel, 249 Ill. App. 3d 621, 634, 619 N.E.2d
214, 225 (1993), aff'd, 164 Ill. 2d 173, 647 N.E.2d 266 (1995).
Factors affecting the voluntariness of a confession include the
age, education and intelligence of the accused, the duration of
the questioning, and whether he received his constitutional
rights or was subjected to any physical punishment. Oaks, 169
Ill. 2d at 446-47, 662 N.E.2d at 1344; Melock, 149 Ill. 2d at
447, 599 N.E.2d at 951. No one factor is dispositive. Oaks, 169
Ill. 2d at 447, 662 N.E.2d at 1344; Melock, 149 Ill. 2d at 447,
599 N.E.2d at 951.
While offers of leniency are also a factor to be con-
sidered (People v. Ruegger, 32 Ill. App. 3d 765, 769, 336 N.E.2d
50, 53 (1975); People v. Shaw, 180 Ill. App. 3d 1091, 1094, 536
N.E.2d 849, 851 (1989)), a confession is not rendered involuntary
simply because such an offer has been made. See People v. Ander-
son, 225 Ill. App. 3d 636, 641, 587 N.E.2d 1050, 1055 (1992);
People v. Veal, 149 Ill. App. 3d 619, 624, 500 N.E.2d 1014, 1018
(1986); People v. Wright, 127 Ill. App. 3d 747, 751, 469 N.E.2d
351, 354 (1984); People v. Noe, 86 Ill. App. 3d 762, 766, 408
N.E.2d 483, 486 (1980); People v. Baine, 82 Ill. App. 3d 604,
610, 403 N.E.2d 57, 61 (1980).
When it is the defendant himself who begins bartering
for leniency in exchange for a statement, a claim of coercion
becomes far less credible. See Wright, 127 Ill. App. 3d at 751,
469 N.E.2d at 353-54. In Wright, the defendant, charged with
murder, asked a detective whether his codefendant, D.C. Clark,
was in custody. Upon learning he was, the defendant told the
detective he would be willing to give a statement in exchange for
a promise by the State not to seek the death penalty against him.
When the State later agreed not to seek the death penalty, the
defendant confessed to the murder. The trial court, finding
"these so-called inducements were actually conditions originated
and tendered by the defendant in return for which he was willing
to give a truthful statement," concluded the defendant's confes-
sion was entirely voluntary, and the appellate court in Wright
affirmed. Wright, 127 Ill. App. 3d at 752, 469 N.E.2d at 354.
Applying these principles to the present case, the
trial court's finding of voluntariness is not to be against the
manifest weight of the evidence. See Oaks, 169 Ill. 2d at 447,
662 N.E.2d at 1344 (standard of review is whether finding of
voluntariness is contrary to the manifest weight of the evi-
dence). All the evidence at trial established it was defendant
who first expressed a willingness to make a statement, and it was
he who set the conditions upon which such a statement would be
made. Defendant does not contest the evidence on this point,
specifically acknowledging in his brief "[t]here is no dispute
that the [d]efendant indicated to Officer Garrett that if his
girlfriend was not charged then he would talk to them." Garrett
testified he released Brigham only after defendant made the above
statement. Defendant initiated and controlled the bargaining
here, so the cases upon which he relies, Ruegger and Shaw, are
distinguishable.
Not only was it conclusively established no improper
offer of leniency was made in exchange for defendant's confes-
sion, there are no other factors indicative of involuntariness
which weigh in defendant's favor. Defendant admits as much in
his argument, acknowledging "many of the [other] factors indicat-
ing involuntariness are not present" in this case. Defendant was
adequately informed of his rights prior to waiving them. The
questioning was brief, lasting just a little over one hour, and
there was no evidence of physical coercion.
Defendant next contends he was not proved guilty of
attempt (armed robbery) beyond a reasonable doubt. He argues
there was little evidence introduced against him, other than his
confession, which established his guilt. The State seems to
agree with this assessment of the evidence but argues such evi-
dence was sufficient to find defendant guilty beyond a reasonable
doubt. The testimony at trial revealed the following.
Garrett testified to the substance of defendant's con-
fession. According to defendant's confession, the following
events transpired on April 23, 1994. Defendant, Izell Pittman,
Cortez Brown, Quonie and George Barney, and Spurgeon Barber de-
cided to go to Contrel Grigsby's apartment in Danville and rob
Grigsby, who they believed was a drug dealer. Pittman and Brown
went in one car, while defendant, the Barneys, and Barber went in
another. Pittman was to enter first and determine if there were
drugs and money inside. Pittman went inside, and defendant and
the others were allowed entrance shortly thereafter.
Once inside, defendant grabbed Grigsby, shoved him
backward, and struck him with the gun. He demanded Grigsby give
him the "stuff," and then went through his pockets. Finding
nothing, he next went upstairs and began rummaging around. After
hearing a gunshot, he ran downstairs and out to the car with the
Barneys and Barber. They then went back to defendant's residence
at 705 Chandler Street.
Defendant admitted he was wearing a hooded sweatshirt
on the night in question and was carrying a .45-caliber weapon.
He told Garrett he and several of the others had worn either dust
masks or surgical gloves or both. The masks, gloves, and defen-
dant's hooded sweatshirt were placed in the trash at the Chandler
Street address. A search warrant executed several days after the
robbery produced surgical latex gloves from a trash can behind
the house at Chandler Street, as well as shell casings matching
those found at the crime scene.
In addition to defendant's confession, however, a vari-
ety of other evidence supported the jury's finding of guilt.
Alvin Jones, a witness at Grigsby's apartment on the night in
question, testified the men who entered the apartment wore dust
masks and one wore a hooded sweatshirt like the one defendant
admitted he was wearing. His testimony corroborated much of
defendant's statement to Garrett, including the fact three men
entered the apartment, one at first and two later. Jones testi-
fied Pittman was definitely one of the men who entered the apart-
ment.
Defendant and Brigham testified on defendant's behalf.
Both claimed to have been at a bar called Harold's Cigar Store
(Harold's) prior to the shooting, driving over together to the
site of the shooting only after they had heard about it. Brigham
was thoroughly impeached by the State's witness Steve Wilson, a
Danville police officer. At trial, Brigham first admitted having
requested to speak with Wilson, whom she considered a friend,
following the shooting. She then, however, denied making each
and every statement Wilson would later testify she made when they
met. Brigham's story on April 29 concerning the events of April
23 was significantly different than the story she (and defendant)
gave at trial.
Wilson testified regarding the substance of the conver-
sation he had with Brigham on April 29. Brigham told Wilson she,
defendant, Barber, the Barneys, Pittman, and Brown had all been
at 705 Chandler Street on April 23. Everyone except Brigham
left, supposedly to go to Harold's, and when they returned to
Chandler Street later that night, she overheard the men talking
about a shooting in the Beeler Terrace housing projects (where
Grigsby lived). Given the glaring inconsistencies between
Brigham's April 29 statement to Wilson and her trial testimony,
the jury would have been justified in disbelieving the testimony
of defendant's girlfriend.
Defendant was also persuasively impeached at trial.
After extensive questioning on cross-examination as to who else
was in Harold's with him on the night of the robbery, defendant
finally gave up the names Andre Parchman and Donovan Parchman,
two brothers with whom defendant was acquainted. Andre and his
brother Donovan both testified in rebuttal for the State. Both
admitted knowing defendant, and both definitively testified they
had not been in Harold's on the night of the shooting at Beeler
Terrace. In fact, both testified they frequented Harold's and
had never seen defendant in Harold's on any prior occasion. The
jury was therefore justified in rejecting defendant's trial tes-
timony as well. When viewing all of this evidence in the light
most favorable to the prosecution, we conclude a rational trier
of fact could have found defendant guilty of attempt (armed rob-
bery) beyond a reasonable doubt. See People v. Campbell, 146
Ill. 2d 363, 374, 586 N.E.2d 1261, 1266 (1992) (stating the stan-
dard of review where defendant challenges the sufficiency of the
evidence).
Defendant next asserts he was denied a fair trial when
the prosecutor made the following remarks in closing argument
prior to defendant's acquittal of first degree murder:
"So we come to the final and end defense
and this is something I would suggest that
Mr. Gerlach [(the other prosecutor)] and I
have always been worrying about from the
first day. Who cares? This is a drug dealer
from Detroit. He's dead. The world is bet-
ter for it. Okay. Let's give them the at-
tempted armed robbery not the first degree
murder. We'll punish him, because he was
doing something wrong, but he just got a drug
dealer."
Defense counsel objected to this argument. The trial court sus-
tained the objection and then admonished the jury:
"The jury has heard the evidence. Clos-
ing arguments should be confined to the evi-
dence and reasonable inferences to be drawn
from the evidence. And anything not based
upon the evidence should be disregarded."
Defendant acknowledges he was acquitted of first degree murder as
suggested by the prosecutor's remark but argues the remark dimin-
ished the possibility of acquittal on the attempt (armed robbery)
charge.
A prosecutor is permitted wide latitude in closing
argument. People v. Enis, 163 Ill. 2d 367, 407, 645 N.E.2d 856,
874 (1994). Improper comments by a prosecutor usually do not
amount to reversible error unless they result in substantial
prejudice to the accused. People v. Johnson, 149 Ill. 2d 118,
145, 594 N.E.2d 253, 267 (1992); People v. Perkins, 247 Ill. App.
3d 778, 786, 617 N.E.2d 903, 908 (1993). A defendant must demon-
strate the prosecutor's comments "so infected the entire trial
proceedings that they denied him a fundamentally fair trial."
People v. Jones, 156 Ill. 2d 225, 247, 620 N.E.2d 325, 334
(1993). The act of sustaining an objection and admonishing the
jury will usually cure any resulting prejudice. People v. Moore,
171 Ill. 2d 74, 105-06, 662 N.E.2d 1215, 1229 (1996).
Assuming, arguendo, the prosecutor's comments here were
improper, defendant has failed to demonstrate substantial preju-
dice as a result of the remarks. The jury did exactly what the
prosecutor was urging them not to do. Further, the trial court
sustained defendant's objection and then admonished the jury to
consider the evidence only, thereby curing any potential preju-
dice.
Finally, defendant argues the trial court erred in
considering defendant's role in the killing of Grigsby at his
sentencing for the attempt (armed robbery) conviction. He argues
his acquittal of first degree murder should have precluded the
trial court from considering that charge in sentencing defendant.
The trial judge sentenced defendant to 15 years' imprisonment,
the maximum term permitted by law, and, in doing so, indicated he
considered defendant's accountability in the murder in aggrava-
tion.
Evidence of other criminal conduct is admissible at
sentencing, even though a defendant has previously been acquitted
of that conduct. See People v. Jackson, 149 Ill. 2d 540, 549-50,
599 N.E.2d 926, 930 (1992) (noting in dicta a majority of juris-
dictions permit introduction of evidence of other criminal con-
duct at sentencing regardless of defendant's acquittal of that
conduct); In re Nau, 153 Ill. 2d 406, 426, 607 N.E.2d 134, 143-44
(1992) (evidence of criminal conduct admissible at subsequent
civil commitment hearing despite previous acquittal of the crimi-
nal charge, following Jackson); see also United States v. Watts,
No. 95-1906 (U.S. January 6, 1997) (holding sentencing courts may
consider evidence of conduct or charges of which a defendant was
acquitted); but see People v. Damnitz, 269 Ill. App. 3d 51, 62-
63, 645 N.E.2d 465, 473-74 (1994). The burden of proof at sen-
tencing is lower than proof beyond a reasonable doubt, and an
acquittal does not conclusively establish the defendant did not
commit the acts alleged. Nau, 153 Ill. 2d at 426, 607 N.E.2d at
143-44; Jackson, 149 Ill. 2d at 550, 599 N.E.2d at 930. The evi-
dence of prior conduct must, however, be relevant and reliable.
Jackson, 149 Ill. 2d at 549, 599 N.E.2d at 930. "Such evidence
*** should be presented by witnesses who can be confronted and
cross-examined *** and the defendant should have an opportunity
to rebut the testimony." Jackson, 149 Ill. 2d at 548, 599 N.E.2d
at 930.
In light of these principles, the trial court justifi-
ably took into account the death of Grigsby in sentencing defen-
dant on the attempt (armed robbery) conviction. As the trial
court noted, there was sufficient evidence of defendant's com-
plicity in the killing to have justified a first degree murder
conviction on the theory of accountability. Relevant and reli-
able evidence was presented as to defendant's role in the murder
of Grigsby. Defendant was given every opportunity to confront
and cross-examine witnesses in defending his first degree murder
charge. His acquittal hardly established his innocence of the
crime, considering he was convicted of attempt (armed robbery)
during the course of which a murder occurred.
Defendant does not discuss Jackson or Nau. Rather, he
relies on People v. Gant, 18 Ill. App. 3d 61, 309 N.E.2d 265
(1974). Gant is readily distinguishable. The complaining wit-
ness in Gant died two days after being robbed by the defendant,
but he was not charged with any offense related to her death.
The trial judge, believing the defendant's actions were partly
responsible for the complainant's death, took this fact into con-
sideration in sentencing the defendant on his robbery conviction.
The appellate court in Gant reduced the defendant's sentence,
since he was never charged with the victim's death and "there was
absolutely no evidence adduced at trial which would support" the
trial court's view of his role in her death. Gant, 18 Ill. App.
3d at 67, 309 N.E.2d at 268.
In contrast to Gant, there was considerable evidence of
defendant's role in the victim's death here. Defendant was
charged and prosecuted for the crime, although he was eventually
acquitted. Defendant does not contend his sentence exceeds the
maximum permitted by law. We find nothing improper about
defendant's sentence.
The judgment of the trial court is affirmed.
Affirmed.
STEIGMANN, P.J., and McCULLOUGH, J., concur.