THIRD DIVISION
January 31, 2007
No. 1-05-3618
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
) Circuit Court of
Plaintiff-Appellee, ) Cook County
)
)
v. ) No. 02 CR 14506-01
)
DONIVAN SIMMONS, )
) Honorable
Defendant-Appellant. ) Garritt E. Howard,
) Judge Presiding.
)
JUSTICE KARNEZIS delivered the opinion of the court:
Following a jury trial, defendant Donivan Simmons was found guilty of first
degree murder and three counts of aggravated battery with a firearm and was
sentenced to consecutive terms of 50 years' imprisonment for murder and 10 years'
imprisonment for aggravated battery. On appeal, defendant contends: (1) the trial court
erred in finding that his statements were attenuated from his unlawful arrest; and (2)
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the trial court erred in denying defendant the opportunity to present evidence that
someone other than he committed the crime. For the following reasons, we reverse.
At about 12 a.m. or shortly thereafter on May 5, 2002, Lashaune Bishop, Fallon
King, Deshawn Lewis and Robert Gresham were shot near 1815 Brown Street in
Evanston, Illinois. Bishop died as a result of her injuries. The injuries suffered by King,
Lewis and Gresham were not fatal. Police officers were unable to recover any of the
bullets from the shooting, but did recover nine 9-millimeter shell casings from the street
in front of 1745 Brown Street, which was approximately five houses away from where
the shooting occurred. All nine shell casings were determined to have been fired from
the same weapon. The weapon, however, was never recovered.
ATTENUATION
On Saturday, May 11, 2002, at about 8 p.m., four police officers arrived at
defendant’s home in Evanston. Defendant resided there with his girlfriend, Lasaundra
O’Neal, and their two children. O'Neal let the officers inside and they asked defendant
to come to the police station with them. According to the officers, defendant agreed to
accompany them and he was transported to the Wilmette police station. At about 8:30
p.m., defendant was briefly interviewed by police officers. After the interview,
defendant was placed in a jail cell and his personal property was taken from him.
Defendant remained at the police station for the next few days and was interviewed
numerous times. When defendant was not being interviewed, he was kept in a jail cell
at the police station. Defendant made several exculpatory statements regarding the
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shooting, but was formally arrested Tuesday afternoon, May 14, 2002, after making an
inculpatory statement.
Defendant filed a motion to quash his arrest and suppress his statements. At
the hearing on his motion, the State acknowledged that defendant was under arrest
Saturday night, shortly after he was brought to the police station, and at that point in
time, the officers did not have probable cause to arrest him. The trial court agreed and
granted defendant’s motion to quash his arrest. Nevertheless, the State contended that
defendant’s statements were attenuated from his illegal arrest and sought to have them
admitted at defendant’s trial.
The trial court held an attenuation hearing where the following testimony was
adduced. For purposes of clarity, we set forth the testimony in chronological order,
beginning with defendant’s arrest on Saturday, May 11, 2002.
Saturday, May 11, 2002
At about 8:30 p.m., defendant was interviewed by Lieutenant Demetrius Cook
and Detective Jeffrey Jamraz. Detective Jamraz read defendant his Miranda rights
before the interview. The officers asked defendant if he knew an individual named
Sheldon Morales. Defendant stated that he knew Morales, but did not know him very
well.
Defendant testified that he asked to speak with a lawyer and asked to call his
girlfriend. According to defendant, officers told him that a lawyer was not necessary
and that he would be able to talk to his girlfriend when they were done questioning him.
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Sunday, May 12, 2002
Defendant testified that officers did not interview him on Sunday. According to
Lieutenant Cook, defendant was not interviewed on Sunday because "we were off
Sunday."
Monday, May 13, 2002
Detective Richard Benbow testified that he and Detective Franklin Scarpulla
interviewed defendant at about 10:38 a.m. Detective Scarpulla read defendant his
Miranda rights. Detective Benbow stated that according to defendant, shortly after 12
a.m. on May 5, 2002, Sheldon Morales and an individual defendant knew as Day-Day
were walking north on Brown Street. Both Morales and Day-Day were carrying guns.
Defendant saw Morales fire his gun in the northbound direction of Brown Street.
Defendant then ran home. About two hours later, Morales came to defendant’s home.
Defendant told the officers that he was afraid to go home because Morales lived across
the alley from him and he had no other place to go. Detective Benbow stated that
defendant told them that he would be willing to remain at the police station.
Defendant testified that he asked for a lawyer, but one of the officers replied that
a lawyer was not necessary. Defendant also asked the officers if he could go home,
but they responded that he could go home after they had all the information they
needed from him. Defendant further stated that he asked to see his family and to make
a telephone call, but was denied. Defendant denied telling the officers that he would
remain at the police station or that he was afraid of Sheldon Morales. Defendant stated
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that he had seen Morales several times between the night of the shooting and his
arrest.
Officer Lou Matthopoulos testified that he and Detective Todd Wolff met with
defendant’s girlfriend, Lasaundra O’Neal, at about 11:20 a.m. O’Neal told the officers
that on the night of the shooting, defendant came home between 11 p.m. and midnight.
About 15 minutes later, Morales came over, and then defendant and Morales left.
Defendant came home about 15 to 30 minutes later and appeared nervous. Morales
came over again about 15 minutes later and Morales also appeared nervous. O'Neal
overheard Morales say that "his girl Lashaune had been shot." Morales stayed the rest
of the night at their home. The next morning, Morales asked defendant for a children’s
sock and she saw Morales fill up the sock with bullets. O’Neal further told Officer
Matthopoulos that since officers had taken defendant to the police station, several
members of the Morales family had telephoned her and were concerned that defendant
was talking with the officers.
Detective Benbow testified that he spoke with Officer Wolff at about 1:15 or 1:30
p.m. Officer Wolff informed him that members of the Morales family were very
concerned that defendant was talking with police officers. Detective Benbow further
testified that he asked defendant if defendant had any other place where he could go
besides the police station, and defendant replied that he had no other place to go.
At about 3:15 p.m., Assistant State’s Attorney Marshall Libert interviewed
defendant. Libert testified that he did not read defendant his Miranda warnings
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because he believed that defendant was a witness and not a suspect. After the
interview, Libert left the room and wrote down defendant’s statement. The statement
was then admitted into evidence. Defendant's statement implicated Sheldon Morales
and Day-Day in the shooting.
At about 3:30 p.m., Officer Wolff met with David Bamberg, who is also known by
the nickname Day-Day. Bamberg denied any involvement in the shooting and was
released.
At about 4:40 p.m., Lieutenant Cook interviewed defendant. Lieutenant Cook
testified that the purpose of the interview was to obtain information sufficient to obtain a
search warrant for Morales’ home. Defendant told Lieutenant Cook that shortly before
the shooting, he saw Morales with a small, black 9-millimeter handgun. Lieutenant
Cook testified that defendant did not mention anyone by the name of Day-Day as being
involved in the shooting. Lieutenant Cook then prepared a search warrant, which was
admitted into evidence. He further testified that he was aware that defendant was
afraid to go home, but did not recall which officer had advised him of that.
At about 9 p.m., officers transported defendant to the Skokie courthouse to
obtain a search warrant for Morales’ home. Lieutenant Cook testified that defendant
was not handcuffed and no special precautions were taken in transporting defendant.
Defendant testified before a judge, who issued a search warrant for Morales' home.
Defendant was then brought back to the Wilmette police station and placed in a jail
cell. Just before midnight, officers searched Morales' home. They recovered a gun,
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which was determined not to be consistent with the ballistics of the gun used in the
shootings.
Tuesday, May 14, 2002
At about 9 or 9:30 a.m., defendant was transported to the courthouse at 26th
Street and California Avenue to testify before the grand jury. Defendant was not
handcuffed and no special precautions were taken to transport him. Defendant's
testimony was consistent with his statement to Assistant State’s Attorney Libert that
Morales and Day-Day were involved in the shooting.
Defendant testified that after his grand jury testimony, he was allowed to call his
girlfriend for the first time. He denied telling her that he was afraid of Morales.
Defendant further denied telling the officers that he wanted to stay at the police station.
He testified that he asked for a lawyer about 9 or 10 times, but was denied.
At about 1 p.m., Officer Matthopoulos went to pick up O'Neal and her children to
bring them to the police station for protection from the Morales' family. Officer
Matthopoulos stated that he asked O'Neal to pack some of the family's belongings to
take with them, including defendant's belongings. He then asked her about defendant's
whereabouts the night of the shooting. O'Neal told him that defendant was at home
between 11 p.m. and 11:30 p.m. and Morales came over at about 11:45 p.m. Both
defendant and Morales left and arrived back at about 12:30 a.m. or 12:45 a.m. Officer
Matthopoulos testified that the officers had learned during the course of their
investigation that the shooting had occurred shortly before 12:30 a.m. According to
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Officer Matthopoulos, O'Neal's statement differed from her statement the previous day.
In this statement, she was unable to account for defendant's whereabouts at about the
time the shooting occurred.
At about 1:30 p.m., Officer Wolff testified that he interviewed defendant. He told
defendant what O'Neal had told the officers about the times defendant had come home
the night of the shooting. He also told defendant that O’Neal and their children were at
the police station and that they would all, including defendant, be placed in a witness
protection program. Defendant said that he did not remember the times he had been
home the night of the shooting, but also said that O'Neal's memory of the times was
wrong.
Sometime after 3 p.m., several officers, including Detective Benbow, Officer
Wolff and Lieutenant Cook, had a conversation about defendant's whereabouts the
night of the shooting. They realized that O'Neal's statement differed from defendant's
statement as well as from defendant's grand jury testimony. Lieutenant Cook also
stated that some of the information that defendant had told him to substantiate his
search warrant was inconsistent with the information other officers had received from
defendant. Lieutenant Cook stated that defendant had not mentioned anyone by the
name of "Day-Day" and defendant had not told him that defendant saw Morales shoot a
gun in the alley. Defendant had only told him that he saw Morales with a gun in the
alley.
At about 4:30 p.m., Officer Wolff and Detective Benbow interviewed defendant.
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Defendant was given Miranda warnings prior to the interview. The officers confronted
defendant with O'Neal's statements of his whereabouts the night of the shooting and
with David Bamberg's denial of any involvement in the shooting. Defendant told the
officers that he had not been truthful and had lied during his testimony to the grand
jury. Defendant then told the officers that on the night of the shooting, he was with
Morales and they both had guns. Defendant had a .25-caliber handgun and Morales
had a 9-millimeter handgun. They walked through the alley to Brown Street. Morales
fired his gun at a group of people standing near a red Monte Carlo car. Detective
Benbow stated that once defendant made the inculpatory statement, defendant was no
longer considered a witness and was placed under arrest.
Several officers testified in rebuttal that defendant did not ask for an attorney,
did not ask to see his family and did not ask to make a telephone call. They further
stated that defendant had indicated that he was afraid of Morales and was afraid to go
home.
Following the attenuation hearing, the court found that defendant's statements
were attenuated from his illegal arrest and were admissible at trial. The court did note
that "[t]he facts involved in this particular investigation so far as it pertains to
[defendant] and the lengthy period of time he was at the police station [are] rather
unique." The court then analyzed the four factors our Supreme Court set forth in Brown
v. Illinois, 422 U. S. 590, 45 L. Ed. 2d 416, 95 S. Ct. 2254 (1975), to determine whether
defendant's statements were attenuated from his illegal arrest. In examining the first
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factor, whether Miranda warnings were given, the trial court noted that Miranda
warnings were given on at least two occasions, on Monday morning before the 10:38
a.m. interview and on Tuesday afternoon before the 4:30 p.m. interview.
Examining the second factor, the proximity in time between the arrest and
defendant's confession, the court noted that defendant's arrest occurred on Saturday
night and his inculpatory statement occurred on Tuesday afternoon during the 4:30
p.m. interview. The court found that during that "lengthy" period of time, defendant was
not subjected to incessant or relentless interrogation and there were long periods of
time where defendant was just left alone. The court noted that during these periods
defendant had plenty of time to think and to reflect upon what he was doing and what
he was saying.
Examining the third factor, the presence of intervening circumstances, the court
found that a number of intervening circumstances were present. The court found that
when defendant was first brought to the police station, defendant was treated as a
witness, not as a suspect or an offender, which was evidenced by the officers having
defendant testify to obtain a search warrant and having defendant testify before the
grand jury. The court also found that defendant had agreed to stay at the police station
until a safe place could be found for himself, his girlfriend and their children. The court
noted:
"[o]rdinarily a person in the police station for that long a period of time, I
agree with [defense counsel], I find that that would be ludicrous. But this
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is a very unique situation. This is a situation where the defendant had
given information regarding Sheldon Morales and his involvement in this
murder. He had testified as an affiant on a John Doe search warrant
naming Sheldon Morales and talking about information relative to his
possession of guns at his residence; the fact that the defendant lived right
across the alley from Sheldon Morales and the fact that the defendant
had no safe place to stay. So under the unique circumstances of this
particular case, I find the defendant did in fact agree to stay at the police
station for that long period of time."
The court further found that another intervening circumstance was the ongoing police
investigation that revealed inconsistencies in defendant's statements, with which
defendant was then confronted.
Examining the fourth factor, the purpose and flagrancy of the police misconduct,
the court found that at all times defendant was treated well by both the police officers
and Assistant State's Attorney Libert. The court noted that officers went so far as to
relocate defendant's girlfriend and their two children for their safety. The court also
noted that it was convinced that, had officers not discovered discrepancies in
defendant's statements, defendant would have been relocated with his family because
there was no other explanation as to why officers would tell O'Neal to pack defendant's
belongings if they were not going to release and relocate defendant. The court also
found that defendant was treated as a cooperating witness, not as a suspect or an
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offender, and the police officers' testimony was credible and Assistant State's Attorney
Libert's testimony was credible. The court further found that defendant's testimony was
not credible.
On appeal, defendant contends that the trial court erred in finding that his
statements were sufficiently attenuated from his illegal arrest.
To establish that a statement made by a suspect in custody is admissible,
notwithstanding an illegal arrest, the State must show that the statement was a product
of the defendant's free will, independent of any taint of the illegal arrest. People v.
Lekas, 155 Ill. App. 3d 391, 411 (1987). The relevant inquiry is whether the statement
was obtained through the exploitation of the illegal arrest. People v. Foskey, 136 Ill. 2d
66, 84 (1990). Whether the statement is sufficiently attenuated from the prior illegal
arrest requires an examination of four factors: (1) whether the defendant received
Miranda warnings; (2) the time period between the arrest and the confession; (3) the
existence of intervening circumstances; and (4) the purpose and flagrancy of the official
misconduct. Brown v. Illinois, 422 U.S. 590, 603-04, 45 L. Ed. 2d 416, 427, 95 S. Ct.
2254, 2261-62 (1975). The presence or absence of intervening circumstances and the
flagrancy of police misconduct have emerged as the most relevant in assessing the
admissibility of a statement obtained subsequent to an illegal arrest. People v.
Jennings, 296 Ill. App. 3d 761, 765 (1998). A trial court's finding under the attenuation
doctrine will not be overturned unless manifestly erroneous. Lekas, 155 Ill. App. 3d at
415.
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We now analyze each of the four factors to determine whether they support the
trial court’s finding of attenuation.
I. Miranda Warnings
Defendant does not dispute that he received Miranda warnings rather; he
contends that Miranda warnings alone cannot attenuate the taint of an unconstitutional
arrest. Defendant therefore maintains that the presence of Miranda warnings is
"largely irrelevant."
Here, the testimony at the attenuation hearing established that defendant
received Miranda warnings on several occasions. He received Miranda warnings
before his interview at the police station on Saturday night, before the officers
interviewed him on Monday morning and again before officers interviewed him on
Tuesday afternoon. We disagree with defendant's contention that the presence of
Miranda warnings is "largely irrelevant." Although the presence of Miranda warnings
may not be the most relevant of factors, it is nonetheless one of the factors we
consider. We find that the presence of Miranda warnings here weighs in favor of
attenuation.
II. Proximity in Time Between the Illegal Arrest and Defendant's Confession
Defendant contends that 38 hours passed between his unlawful arrest on
Saturday night and "the resumption of questioning" on Monday morning. He argues
that because there were no intervening circumstances during this period of time, there
was nothing to break the taint of his unlawful arrest. Defendant maintains that all of his
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statements must be suppressed.
A lapse of time is a factor that "cuts both ways" when analyzing attenuation.
Lekas, 155 Ill. App. 3d at 414. It "may serve to amplify the coercion latent in the
custodial setting" or "may help to purge the taint of a prior illegality by allowing the
accused to reflect on his situation, particularly when attended by other factors
ameliorating coercion, such as Miranda warnings." Lekas, 155 Ill. App. 3d at 414.
Here, the testimony at the attenuation hearing indicated that after defendant was
transported to the police station, he was interviewed briefly and then placed in a jail cell
sometime between 8:30 and 9 p.m. on Saturday night. Defendant was not interviewed
on Sunday, because, according to Lieutenant Cook, the officers were not at work on
Sunday. Defendant was then interviewed several times throughout Monday and
Tuesday. We find that on the one hand, the fact that defendant was left alone from
Saturday night until Monday morning and was not subjected to continuous interrogation
could weigh in favor of attenuation. However, the fact that defendant was left alone,
deprived of his possessions with no knowledge as to how long he was to remain at the
police station could weigh against a finding of attenuation. Therefore, we find that this
factor both weighs in favor of and against attenuation.
III. The Existence of Intervening Circumstances
Defendant contends that the statements of O'Neal and David Bamberg, with
which the officers confronted defendant, did not come from an independent source and
were obtained as a direct result of his unlawful arrest. Defendant argues that these
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statements cannot serve as intervening circumstances to break the taint of his unlawful
arrest. Defendant cites to People v. Clay, 349 Ill. App. 3d 517 (2004), a case in which
this court held that it was improper to confront the defendant with statements obtained
from an unlawfully arrested codefendant, which could not serve to attenuate the
defendant's statement from his unlawful arrest. Clay, 349 Ill. App. 3d at 528-29.
Although defendant acknowledges that the facts here are different because O'Neal and
Bamberg were not codefendants, he argues that their statements cannot be used as
intervening circumstances because the officers only learned of their existence because
of defendant's illegal arrest.
An intervening circumstance serves to break the connection between the
defendant's incriminating statement and the prior illegal arrest. Jennings, 296 Ill. App.
3d at 766. Intervening circumstances may break the causal connection between an
illegal arrest and a confession if they have such an effect on the defendant so that his
confession made after the intervening event is an exercise of free will, and not an
exploitation of the initial illegality. People v. Graham, 214 Ill. App. 3d 798, 814, appeal
denied, 141 Ill. 2d 550 (1991). Confronting a suspect with new information, untainted
by illegality, has been held an intervening circumstance that renders a confession
voluntary. People v. Bates, 267 Ill. App. 3d 503, 506 (1994). See also People v.
Bracy, 152 Ill. App. 3d 566, 572 (1986) (defendant confessed after seeing his girlfriend
at the police station and learning that she was cooperating with police and after seeing
proceeds of the robbery at the police station).
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Here, the trial court found several intervening circumstances. The trial court
found that: when defendant was first brought to the police station, he was treated as a
witness, and not as a suspect or an offender; defendant had agreed to stay at the
police station until a safe place could be found for him and his family because he was
afraid of Morales; and defendant had been confronted with O'Neal's statements and
David Bamberg's denial of any involvement in the shooting.
We question the trial court’s analysis. When defendant was first brought to the
police station Saturday night, he was read his Miranda rights and placed in a jail cell
and his belongings were taken from him. This is the sort of treatment given to a
suspect or an offender, not a witness. Also, officers did not speak with defendant on
Sunday, not something that would likely happen with a witness. Again, defendant was
read his Miranda rights prior to the Monday morning interview, not something that
generally happens with a witness. Further, defendant testified that he was not afraid of
Morales and had seen him numerous times after the shooting. Moreover, defendant
testified that he did not tell police officers that he wanted to stay at the police station or
that he had no other place to go. We acknowledge that there was nothing illegal about
the police officers' questioning of O'Neal and Bamberg, who voluntarily spoke with
them. However, the officers’ contact with O’Neal and Bamberg could be found to be an
exploitation of defendant’s illegal arrest because officers were led to Bamberg only
through defendant’s statement that Bamberg and Morales were involved in the
shooting. Similarly, the officers were only able to question O’Neal about defendant’s
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whereabouts the night of the shooting because they had arrested defendant. Had
officers not illegally arrested defendant, they would not have been led to O’Neal or to
Bamberg. Therefore, we find that confronting defendant with O'Neal's statements and
Bamberg's denial were not intervening circumstances that would serve to break the
causal connection between defendant's illegal arrest and his inculpatory statement.
We find that this factor weighs against a finding of attenuation.
IV. The Purpose and Flagrancy of the Official Misconduct
Defendant contends that the police misconduct was purposeful and flagrant.
Defendant argues specifically that his arrest “was nothing more than a blatantly
unconstitutional fishing expedition.” Defendant maintains that officers arrested him
based on the word of a confidential informant who had heard that the “word on the
street” was that Morales and a “guy” he had been “running with” were involved.
Here, as the trial court found, defendant was under arrest Saturday night when
he was placed in a jail cell and his belongings were taken from him. Defendant was
then not interviewed again until Monday morning. We find the officers’ conduct of
leaving defendant in a jail cell until Monday morning, to be a purposeful and flagrant
violation of his constitutional rights. There was no evidence adduced at the hearing
that officers kept defendant apprised of their investigation on Sunday. Instead,
defendant was left to sit and wonder whether officers would question him, charge him
or let him go. Lieutenant Cook's statement that defendant was not interviewed on
Sunday because the officers were not working on Sunday is difficult to accept. We
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believe the purpose of leaving defendant alone for such a long period of time was
twofold. It served to allow the officers to go out Sunday and investigate and hope that
they would uncover information to establish probable cause. It also served to establish
the officers’ power over defendant to impress upon him the need to cooperate or else
the impression being given was that defendant could be locked up for days on end with
no communication from police officers. Additionally, the officers testified that they
treated defendant as a cooperating witness and only locked him up because defendant
was afraid to go home. However, this is somewhat belied by the record. Defendant
appeared to be locked up to serve the officers’ needs, giving them repeated access to
him for questioning, which occurred on Monday and Tuesday. It also ensured access
to defendant to obtain a search warrant for Morales’ home and have defendant testify
before the grand jury. We agree with defendant’s assertion that officers rounded up
defendant and then conducted a fishing expedition in order to establish probable
cause. We find the officers’ misconduct flagrant and purposeful, which weighs against
a finding of attenuation.
In summary, we find that only one of the factors set forth in Brown, the presence
of Miranda warnings, clearly weighs in favor of attenuation. The second factor, the time
between the arrest and the statement, is ambiguous and weighs in favor of and against
attenuation. The third factor, the existence of intervening circumstances, weighs
against a finding of attenuation. The fourth factor, the purpose and flagrancy of the
police misconduct, weighs against a finding of attenuation. Therefore, considering
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each of the four factors, we find the evidence insufficient to establish that defendant's
confession was the product of his own free will rather than an exploitation of his illegal
arrest. We find that the State did not meet its burden in establishing that defendant's
statements were made independent of any taint of his illegal arrest. We find the trial
court’s finding of attenuation against the manifest weight of the evidence. We reverse
the trial court's finding of attenuation and remand the cause to the trial court for further
proceedings.
DEFENSE EVIDENCE
Defendant next argues that the trial court erred in precluding him from
introducing evidence that someone other than he committed the crime.
Prior to trial, both the State and defendant filed a motion in limine concerning an
individual by the name of Steven Pace. Steven Pace had been investigated by police
officers but was never charged in connection with the shooting. The State sought to
exclude the evidence regarding the investigation of Steven Pace and defendant sought
to introduce the evidence.
Defendant supported his motion with police investigative reports and the written
statements of numerous individuals, including Sheena Benson, Derrick Jones, Alana
Aguilar, Sharlette Robinson, Franklin D. Wheat, Jr., and Steven Pace.
Sheena Benson was interviewed by officers and her statement was
memorialized in writing by an assistant State's Attorney. According to Benson's
statement, she met Pace the night of the shooting sometime after 10 p.m. Pace told
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her that he had been shot at earlier in the evening while he was driving in his car and
also that he shot at Robert Gresham and Deshawn Lewis at about 10 p.m. that night.
At about midnight, she and Pace were at Pace's aunt's house, and she saw Pace with a
purple "Crown Royal" bag with bullets in it. Pace dumped the bullets out, picked up
about five bullets, and put them in the bag. An individual by the name of Derrick Jones
came to pick them up and drive Benson home. On the way to Benson's home, they
stopped in front of a house on McDaniel Avenue. Pace left the car for a few minutes.
After Pace returned, Benson heard sounds like Pace was loading a gun. Jones and
Pace dropped Benson off at her home and she saw Jones' car drive towards the
direction of Brown Street. Shortly after Benson returned home, she heard that there
had been a shooting and that Robert Gresham and Deshawn Lewis had been killed.
Benson called Pace at about 1 a.m. and informed him of the shooting. Pace replied,
"that if it's true, don't tell on me." The next day, at about noon, Benson went to see
Pace. She told Pace that a girl had been killed and asked Pace if he did it. Pace
replied, "Gresham yea, I didn't mean to deaden them, I just wanted to scare them."
Pace also replied that he "never saw those girls."
Benson was interviewed a second time by police officers. According to the
police report, Benson claimed that she had been with Pace until about 12:40 a.m. on
the night of the shooting.
Derrick Jones was interviewed by officers and the interview was summarized in
a police report. According to the report, on the night of the shooting, at approximately
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10:15 p.m. Pace asked him for a ride. Jones picked Pace up and Pace directed Jones
to stop in front of a house on McDaniel Avenue. Pace exited the vehicle and returned
about five minutes later with a "big pistol" in his hand. Pace loaded the gun with
bullets. Jones then drove Pace home. At about 12:10 a.m., Jones received another
telephone call from Pace asking for a ride, but Jones did not pick up Pace.
Alana Aguilar was interviewed by officers and her statement was memorialized
in writing by an assistant State's Attorney. According to the statement, Aguilar went to
meet Pace at about 10 p.m. on the night of the shooting. She saw an individual named
Terrance, who told her that some "4 Corner Hustlers" had just shot at Pace. Aguilar
met Pace at his home and Pace told her that Bob Gresham and Bob's friend had shot
at him. Pace also told her that he shot back at them. Aguilar stated that Pace was
wearing a black "hoody" sweatshirt that night. The next day, a girl named Chaquise
came over and told them she had heard that four people had been killed. Pace stated
"I only shot two mother f--kers, Bob [meaning Bob Gresham] and his mother f--king
friend."
Officers interviewed Sharlette Robinson several times and the interviews were
summarized in police reports. According to the reports, on the night of the shooting,
just as it was beginning to get dark outside, Robinson was at home and observed
Steven Pace standing next to a parked burgundy Monte Carlo on Fowler Avenue. Pace
was wearing a black shirt, black pants and black shoes. That night, Robinson heard
two separate shooting incidents. In the first one, which she described as coming from
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west of her home, she heard four or five gunshots. The second incident, one or two
hours later, which was around midnight, she heard numerous gunshots coming from an
area east of her home. Shortly thereafter, Robinson looked out the window and
observed an individual running by her home wearing the same black clothing as she
had observed Pace wearing earlier that evening. Robinson was unable to identify Pace
or Sheldon Morales in a photo lineup.
Franklin D. Wheat, Jr., was interviewed by officers and the interview was
summarized in a police report. According to Wheat, on the night of the shooting, he
heard several gunshots at about 12:30 a.m. He walked to his front yard, where about
15 minutes later, a brown Cadillac drove down his street. The car made a loud noise
because it had a flat tire. He described the driver as a black male with a dark
complexion and wearing a black shirt, glasses and blue pants.
Steven Pace was interviewed by police officers and the interview was
summarized in a police report. According to the report, Pace owns a large, brown,
older model Cadillac. On the night of the shooting, shortly after it had just gotten dark
outside, he drove through an alley and encountered a group of individuals and
recognized Bob Gresham among the group. Someone in the group started shooting at
him and flattened one of his car tires. According to the report, Pace was at home the
rest of the night. Pace also stated that he owned a handgun, which he described as an
"AMT" 9-millimeter "back-up." Pace denied that he had retrieved a handgun from a
house on McDaniel Avenue that night.
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The court granted the State's motion in limine to exclude the evidence regarding
the police investigation of Steven Pace and denied defendant's motion to include the
evidence. The court found that the evidence indicated that there had been two
shootings on the night of May 4, 2002. One shooting occurred at about 10:15 p.m. and
the other one at about 12:30 a.m. The court stated that the evidence showed that Pace
was involved in the earlier shooting at 10:15 p.m., but "there is no real evidence to
show he was * * * involved in the Brown Street shooting at 12:30 a.m." The court stated
that, "I find it's too remote and speculative and it's not sufficiently reliable to be placed
in front of the jury."
Defendant filed a motion to reconsider the trial court's order. Prior to the court
ruling on defendant's motion, Sharlette Robinson was called to testify before the court.
She stated that on the night of the shooting, just after 12 a.m., she saw an individual
running through her yard. The individual was wearing a black "hoody" and jeans. She
thought that the individual could be Pace because the person's clothing was similar to
the clothing she had observed Pace wearing earlier that evening, but also stated that "it
could have been anybody in those clothes." Robinson stated that she was never able
to see the person's face.
The court denied defendant's motion to reconsider on the basis that Robinson
could not identify Steven Pace as the individual who ran by her house. The court noted
that Robinson stated that it could have been Pace because of the similar clothing, but
added that there was nothing particularly distinctive about the clothing that the
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individual wore.
Defendant argues that the trial court's refusal to allow him to present evidence
regarding the police investigation of Steven Pace "crippled" his defense and denied
him a fair trial.
A defendant may attempt to prove that someone else committed the crime with
which he is charged, but that right is not without limitations. People v. Ward, 101 Ill. 2d
443, 455 (1984). Generally, the test for admissibility of evidence is whether such
evidence tends to prove the particular offense charged. Ward, 101 Ill. 2d at 455.
"[W]hether what is offered as evidence will be admitted or excluded depends upon
whether it tends to make the question of guilt more or less probable." Ward, 101 Ill. 2d
at 455. Where the offered evidence is uncertain or speculative, the trial court, in its
discretion, may properly reject it. Ward, 101 Ill. 2d at 455. We will not reverse the trial
court's ruling absent an abuse of discretion. People v. Enis, 139 Ill. 2d 264, 281
(1990).
Here, we note that it is difficult to ascertain exactly what the evidence would
have been because the witness testimony contained in the written statements and
police reports that were attached to defendant's motion were merely summaries of what
the witnesses said. Additionally, many of the statements contained in the reports are
hearsay and may not be admissible at trial. Nevertheless, we believe that the evidence
with which the trial court was presented was not so uncertain or speculative and
defendant should have been given the opportunity to present it. The evidence
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indicated that Pace told Benson that he shot at Robert Gresham and Gresham's friend,
and that he "never saw those girls." Pace's statement could refer to the 12:30 a.m.
shooting. Also, Benson stated that Pace had filled a bag with bullets before retrieving a
gun from a house on McDaniel Avenue sometime after the 10 p.m. shooting. Robinson
indicated that Pace could have run by her house shortly after the shooting. And,
Wheat saw Pace's car shortly after the shooting. We find that this evidence, certainly
far from proof beyond a reasonable doubt, was not so uncertain or speculative and that
the trial court abused its discretion in excluding it. Upon remand of the cause to the
trial court, if this issue should reoccur on retrial, the court is advised to allow defendant
to present the testimony of witnesses regarding the police investigation of Steven Pace.
Accordingly, we reverse the judgment of the circuit court and remand the cause
with directions.
Reversed and remanded.
GREIMAN, J., and CUNNINGHAM, J., concur.
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