In re Dante W.

FIRST DIVISION
June 16, 2008

No. 1-06-0010

) Circuit Court of
In re Dante W., a Minor ) Cook County.
(The People of the State of Illinois, )
Petitioner-Appellee, v. Dante W., ) No. 03 JD 4804
Respondent-Appellant). )
) The Honorable
) Rodney Hughes Brooks,
) Judge Presiding.

JUSTICE GARCIA delivered the opinion of the court.

After a jury trial, the respondent, Dante W., was

adjudicated delinquent based on the commission of first degree

murder and aggravated vehicular hijacking. The respondent now

appeals alleging ineffective assistance of counsel and that the

trial court erred when it denied his motion to suppress

statements. For the reasons that follow, we affirm.

BACKGROUND

On January 11, 2003, Jimmy Patton was shot and killed in

Garfield Park. His car was also stolen. After arresting Joshua

Council,1 Chicago police detectives began looking for Robert

Hughes, Antonio Woodson, and the respondent. The respondent was

15 years old when he was arrested on September 22, 2003. The

State filed a petition for adjudication of wardship against the

1
Joshua Council's surname is given various spellings in the
record.
No. 1-06-0010

respondent for knowing and intentional murder, murder during the

course of a felony, and aggravated vehicular hijacking. The

trial court found extended juvenile jurisdiction warranted. The

matter proceeded to trial in January 2005.

I. Motion to Suppress Statements

Before trial, the respondent filed a "'Re-Corrected' Motion

to Suppress Video Statements," alleging "because of his mental,

educational, emotional and/or psychological capacity" the

respondent was unable to understand his Miranda rights. The

hearing on the respondent's motion to suppress commenced on

August 26, 2004, continued from date to date, and concluded on

December 21, 2004.

The State presented testimony from Chicago police detectives

Greg Swiderek and John Roberts, youth officer Ayanna Parsons, and

Assistant State's Attorney (ASA) Caren Armbrust, all of whom who

were present with the respondent at various times at the police

station. The respondent and his mother, Cherisse W., testified

in the respondent's case.2

Following the respondent's arrest on September 22, 2003, he

was transported to Area 4 and placed in an interview room.

At 4:30 p.m., when Detective Swiderek arrived for his shift,

he was told by Officer Harry Matheos that the respondent had been

2
The respondent's mother's first name is given various

spellings in the record.

2
No. 1-06-0010

arrested. Because the respondent was a minor, Detective Swiderek

told Officer Matheos to notify the respondent's parents. Officer

Matheos went to the respondent's address, but no one was home.

At 5:20 p.m., Detective Swiderek and his partner, Detective

Roberts, spoke to the respondent for the first time when the

respondent knocked on the door of the interview room and asked

why he was there. The detectives told the respondent they were

investigating the death of a man and the theft of his car on

January 11, in Garfield Park. The respondent said he was there,

but did not kill the man. Swiderek told the respondent they

could not speak with him without a parent or guardian present.

The respondent gave detectives his grandmother's phone number.

At 6:30 p.m., Detective Roberts spoke with the respondent's

grandfather. Roberts asked him to come to Area 4, because the

respondent was under arrest for murder. The respondent's

grandfather agreed to come and spoke by phone with the

respondent. The grandfather called back to tell Roberts he would

not be coming because he was not the respondent's legal guardian.

He gave Roberts the phone number of the respondent's mother.

Detective Roberts called the respondent's mother. She told

him she was not coming to Area 4 and hung up. Roberts called

back and left a message. Roberts then left a message with the

respondent's grandparents.

At 7:30 p.m., Detective Swiderek took the respondent to an

3
No. 1-06-0010

interview room used to videotape statements and introduced him to

youth officer Parsons. Swiderek told the respondent that Parsons

was there to protect his rights and asked the respondent if he

understood. The respondent said he did. Swiderek then left the

room.

When she was alone with the respondent, Parsons asked him

about his "well being." The respondent told her he was fine, he

had been given a drink, and he did not have to go to the

bathroom. After speaking with the respondent, Parsons attempted

to contact his family, but was unsuccessful.

When Detective Swiderek returned, he told the respondent

that he was under arrest for the murder of Jimmy Patton and

advised the respondent of his Miranda rights. After each right,

Swiderek asked the respondent if he understood that right and the

respondent answered that he did. The respondent was able to

explain to Swiderek what each Miranda right meant. Swiderek also

asked the respondent if he understood that he could be charged as

an adult. The respondent answered that he did.

Detective Swiderek then had a conversation with the

respondent regarding the events of January 11. The respondent

"appeared fine" during the conversation. The respondent "spoke

intelligently and was able to explain his actions." After

speaking with the respondent, Swiderek contacted the State's

Attorney's office.

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No. 1-06-0010

While Detective Swiderek spoke to the respondent, Detective

Roberts continued in his attempts to contact the respondent's

parents or a guardian. Roberts phoned the Broadview police

department and asked that a squad car be sent to the respondent's

mother's house. Broadview police officers left a note with

Roberts' contact information at her house. Roberts called the

respondent's grandfather and left a message. Roberts also left a

message on the respondent's grandmother's cell phone.

At 8 p.m., ASA Armbrust arrived at Area 4. Before speaking

with the respondent, she met with detectives, reviewed police

reports, and watched the videotaped statements of "other

offenders who had previously been charged."

At 10 p.m., Armbrust met with the respondent. Detective

Swiderek and youth officer Parsons were also present. Armbrust

believed Parsons was in the room because the respondent's family

"either [was] unwilling [to come to Area 4] or there was no

answer at the houses."

Armbrust introduced herself as an assistant State's

Attorney. She told the respondent that she was not his attorney.

Armbrust then informed the respondent of his Miranda rights.

After each right she asked the respondent if he understood that

right and he said he did. Armbrust then asked the respondent to

explain each right to her. The respondent explained each right

in his own words.

5
No. 1-06-0010

After the respondent told Armbrust about the events of

January 11, Armbrust presented him with choices regarding how to

memorialize his statement. The respondent chose to videotape his

statement. Armbrust read the "Consent to Videotape Statement" to

the respondent and asked if he still wanted to give a statement.

The respondent indicated he did and signed the consent form.

Armbrust, Swiderek, and Parsons also signed the form.

While Swiderek and Armbrust spoke to the respondent, Roberts

continued his efforts to contact the respondent's family. He

requested a squad car be sent to the respondent's grandparents'

home. He also spoke to the respondent's great-grandmother,

Augusta W., and grandmother, Betty Jackson.

At 12:20 a.m., the respondent's mother and grandmother

arrived at Area 4. Swiderek, Roberts, and Parsons explained that

the respondent was under arrest for murder, that he had chosen to

give a videotaped statement, and that it was important a family

member sit with the respondent while he made the statement.

Neither woman wished to sit with the respondent.

After both women had spoken to the respondent, they still

declined to sit with him while he made a statement. Swiderek

asked the respondent whom he wanted to sit with him. The

respondent chose his grandmother. When Jackson was told the

respondent wanted her to sit with him while he made his

statement, she agreed and signed the "Consent to Videotape

6
No. 1-06-0010

Statement" form.

The respondent's videotaped statement was taken at

approximately 1:26 a.m. Armbrust, Swiderek, and the respondent's

grandmother were present. Before the respondent gave his

statement, he was again advised of his Miranda rights. The

respondent was asked to repeat in his own words what the "Miranda

Warnings" meant to him. Armbrust also asked the respondent if he

had been threatened or promised anything in exchange for his

statement. He denied he was.

The respondent never said he did not want to give a video

statement and never asked for an attorney. His mother and

grandmother never stated they did not want the respondent to give

a videotaped statement and never asked for an attorney for the

respondent.

Before resting, the State sought leave to play the

videotaped statement so the court could see the respondent's

"demeanor" while he was making the statement. The respondent's

counsel objected. The court denied the motion.

The State rested. The respondent moved for a "directed

verdict." The trial court denied the motion.

The respondent testified that following his arrest, he was

placed in an interview room. Two detectives entered the room,

introduced themselves, and asked the respondent about January 11.

The respondent told them he was at home. The detectives

7
No. 1-06-0010

questioned the respondent for 30 minutes. They returned 20

minutes later and asked the same questions. The respondent again

said he was at home. The second interview lasted for 10 minutes.

The detectives then took the respondent to another room

where he watched the videotaped statement of Antonio Woodson, in

which Woodson described the events of January 11. The respondent

testified one of the detectives, he did not remember which one,

promised him that if he "was to make [a] tape, [he] wasn't going

to be charged." The respondent was told that putting his version

of events on tape would be his "best bet" to avoid being charged.

Before making his statement, the respondent was informed of

his "rights" for the first time by youth officer Parsons. The

respondent also spoke to his mother and grandmother.

During direct examination, the respondent testified

regarding his understanding of his Miranda rights during

questioning by ASA Armbrust.

"Q. *** And when she asked you

these rights, did you understand each

and every right as she asked them?

A. Some of them. Not all of them.

I had--I told her to repeat them, to

explain them to me.

During cross-examination, the respondent testified the

detectives also read him Miranda rights and he indicated that he

8
No. 1-06-0010

understood each right. The respondent testified he understood

the Miranda rights when Swiderek read them and when he repeated

them back to ASA Armbrust. However, on redirect, the respondent

testified he did not understand his Miranda rights and only said

he did to end the interview and get home quicker.

On re-cross-examination, the respondent testified that both

detectives promised he would not be charged if he made a

statement, but he did not tell anyone about the promise. On

re-redirect, the respondent testified that no one ever asked him

about any promises being made in exchange for the statement and

that he never signed anything verifying the transcription of the

videotaped statement was true and accurate.

After the respondent's testimony, the State renewed its

"Motion to Reconsider Exclusion of the Minor's Videotaped

Confession." The State wished to play the portions of the

statement during which ASA Armbrust told the respondent that she

was a lawyer, but not his lawyer, and when she asked if he had

been promised anything in exchange for his statement. The court

denied the motion.

The State called ASA Armbrust in rebuttal. Armbrust

testified she told the respondent she was an assistant State's

Attorney and never told him that she was his attorney. She never

told the respondent that he would not be charged if he made a

statement. Armbrust asked the respondent if he had been promised

9
No. 1-06-0010

anything in exchange for his statement and he said no.

Detective Swiderek was also recalled. He denied promising

not to charge the respondent if he made a statement.

The respondent testified in surrebuttal. The respondent

testified that Detective Roberts came into the interview room and

told him that if "I tell him what happened during that day, I

wasn't going to be charged." The respondent described Roberts as

"about six, six something, six-something feet; white, white guy;

he had a suit on." The respondent did not know Roberts' age, but

described him as having "light gray, light brown hair."

The respondent's mother, Cherisse W., also testified in

surrebuttal. On September 22, Detective Roberts called Cherisse

W. between 10:30 p.m. and 11 p.m. to tell her the respondent was

in custody because of a stolen car. When she arrived at Area 4,

Roberts told her the respondent was under arrest for murder.

Roberts told her that "if [the respondent] put his testimony on

tape, it [would] be in his best interest to tell his side of the

story, and nine times out of ten he would not be charged."

Roberts told her the respondent would "not be charged *** because

they had the shooter."

Cherisse W. told the detectives it was up to the respondent

to decide whether to make a videotaped statement, but she would

not have agreed to it. The respondent told her he was making a

videotaped statement because Roberts said it would be in his best

10
No. 1-06-0010

interest to do so.

Detective Roberts testified that his only contact with the

respondent was when the respondent knocked on the door of the

interview room and asked Roberts and Swiderek why he was there.

Roberts denied promising not to charge the respondent if he made

a videotaped statement. He did not tell the respondent's mother

that it would be in the respondent's best interest to make a

videotaped statement.

The court denied the motion to suppress. The court found

"under the totality of the circumstances," the respondent and his

witness were not credible. The court found "the Miranda warnings

were properly given[,] that the minor understood the warnings[,]

that the minor waived the warnings[,] that the waiver was

knowing[,] that the waiver was intelligent[, and] that the waiver

was a voluntary waiver."

II. Trial

In his opening statement before the jury, the respondent's

counsel admitted the respondent went to the park "looking for a

car to steal." Though the respondent "was physically present

when the fatal act occurred," the respondent had no idea that a

gun was involved until it was "whipped" out. Counsel asked the

jury to find the respondent not guilty because the "true

perpetrators" had already been caught and punished.

The State presented the testimony of Steve Banks. On

11
No. 1-06-0010

January 11, Banks, the victim, and J.C. Parker were drinking in

Parker's car when they were approached by three men. One man

asked for a light. The victim exited Parker's car and walked to

his car. As he attempted to unlock the door, two of the men

grabbed the key and the third man pulled out a gun. Banks and

Parker drove away to notify the police. When they returned, the

victim was face-up on the sidewalk with a visible gunshot wound

to the chest.

Detective John Roberts testified that in the course of the

investigation into the victim's death, a lead developed which

pushed Roberts in the direction of Joshua Council.

On September 5, 2003, Roberts interviewed Council. After

the interview, Roberts began to look for Robert Hughes,

"Antonio," and the respondent. Hughes was arrested a few days

later. While interviewing Hughes, Roberts learned Antonio's last

name was Woodson. Woodson was arrested that day. Roberts issued

an investigative alert for the respondent after he was unable to

find the respondent at his home.

Roberts testified about the arrest of the respondent and his

attempts to locate the respondent's mother. His testimony was

substantially similar to that given at the suppression hearing.

He again denied promising not to charge the respondent if he made

a videotaped statement.

Detective Greg Swiderek testified as he did at the

12
No. 1-06-0010

suppression hearing. The respondent told Swiderek that on

January 11, he was at a party at Hughes' house with Council and

Woodson. Council wanted to steal a car "to get some rims for his

brother's car." Council asked the respondent to come along and

to keep an eye out for the police. As they walked to Garfield

Park, Council told the respondent that Woodson had a gun.

When they arrived at the park, there was a gold car with the

engine running and a red car with people sitting in it. Council

walked up to the red car and told the occupants that the gold car

belonged to his grandfather. He asked the occupants of the red

car where his grandfather was. To clear up Council's questions

about the ownership of the gold car, the victim exited the red

car. While the victim walked to the gold car, Council asked him

for a cigarette. Woodson then walked up to the victim and fired,

but nothing happened. Woodson fired again and the victim fell to

the ground. Hughes, Woodson, Council, and the respondent got

into the gold car and drove away.

Swiderek denied showing the respondent the videotaped

statements of Hughes, Woodson, and Council. Swiderek also denied

that Roberts promised not to charge the respondent if he made a

statement.

Assistant State's Attorney Caren Armbrust's testimony was

consistent with her testimony at the suppression hearing. During

13
No. 1-06-0010

her testimony, the respondent's videotaped statement was played.3

At the beginning of the videotape, Armbrust read the respondent

his Miranda rights and gave a "short summary" of the statement.

The respondent's videotaped statement was consistent with his

statement to Swiderek.

The State rested. The respondent's counsel moved for a

"judgment of acquittal." The trial court denied the motion.

The respondent presented the testimony of his mother.

Cherisse W. testified the respondent had been diagnosed with

"Attention Deficit Disorder" and was in special education classes

at school. Cherisse W. testified that when she spoke to

Detective Roberts on the phone following the respondent's arrest,

he told her the respondent was in custody because of a stolen

car. When she arrived at Area 4, she learned the respondent was

under arrest for murder. Roberts told her he had advised the

respondent to "put his version on the table." Roberts also

"stressed at that point that [the respondent] would not be

charged because they had the shooter." Cherisse W. was allowed

to see the respondent, but was not left alone with him. She

thought he looked scared. The respondent told her Roberts had

promised not to charge him if he agreed to give a statement on

tape. Cherisse W. did not request an attorney for the respondent

3
The actual videotape is not in the record; only a

transcript of the videotaped statement has been provided.

14
No. 1-06-0010

because he was not going to be charged.

Betty Jackson, the respondent's grandmother, testified that

her daughter called her around 11 p.m. and said the respondent

was under arrest because of a car. When they arrived at Area 4,

Roberts told them the respondent was under arrest for murder.

Roberts also said it was in the respondent's best interest to put

"his version of what happened on tape" because Woodson, Council,

and Hughes had made videotaped statements. Roberts promised the

respondent would not be charged if he made a statement.

When Jackson saw the respondent, he was "sitting *** all

crunched up, biting on his sweater" and appeared to have been

crying. When Jackson asked the respondent if he was sure he

wanted to make a statement, he told her he had seen the other

statements and wanted to put his version on tape. She did not

ask for an attorney for the respondent because he was not going

to be charged.

The respondent rested after Jackson's testimony.

The State called Roberts in rebuttal. Roberts denied

promising not to charge the respondent if he made a statement.

Before closing statements, the trial court held a jury

instruction conference. The State presented instructions from

the Illinois Pattern Jury Instructions (IPI). The respondent's

counsel presented non-IPI instructions that attempted to define

what accountability was not. The State objected to several of

15
No. 1-06-0010

the defense instructions. The court sustained the objections.

In its closing argument, the State reminded the jury that

under accountability, because the respondent participated in a

felony that led to a death, he was responsible for that death

even if he did not fire the gun.

In his closing argument, the respondent's counsel admitted

the respondent intended to steal a car the night of January 11,

"there is no way of getting around it. *** We are not trying to

suggest you overlook that, that was wrong, we offer no excuse for

that. But just as that's an improper motive, it does not make

[the respondent] accountable and responsible for murder."

The respondent's counsel admitted the respondent "had

knowledge of an offense. *** What he didn't have was the level

of participation in that offense." Counsel conveyed to the jury

that the respondent should not be held responsible for the

victim's death; he should be found not guilty of first degree

murder.

During its deliberations, the jury sent out a note asking,

"[i]f we find guilty on vehicular hijacking, do we have an option

to find [the respondent] not guilty on first degree murder?" To

answer the question, the court reread to the jury IPI, Criminal,

4th, No. 7.02X, "Explanation To Jury That It May Not Find

Defendant Guilty of Felony Murder and Not Guilty of Underlying

16
No. 1-06-0010

Felony."4 Illinois Pattern Jury Instructions, Criminal, No.

7.02X (4th ed. 2000).

The jury found the respondent guilty of first degree murder

and aggravated vehicular hijacking.

The respondent's counsel filed a motion for a new trial.

After oral argument, the trial court denied the motion.

The court sentenced the respondent to the custody of the

Illinois Department of Corrections, Juvenile Division, until his

twenty-first birthday. The court also sentenced the respondent

to a stayed adult sentence of 25 years. This additional 25-year

sentence would be imposed if the respondent violates his juvenile

sentence. This timely appeal followed.

ANALYSIS

The respondent contends his trial counsel was ineffective

because he had a "fundamental misapprehension of the law, and, as

a result, repeatedly conceded [the respondent's] guilt to the

jury and failed to subject the State's case to meaningful

adversarial testing." The respondent also contends the trial

4
We question how the instruction gave any guidance to the

jury in light of the question asked. The jury's question

concerned the inverse situation to that of the jury instruction:

whether it could find the respondent guilty of the underlying

felony and not guilty of felony murder. However, no issue is

raised regarding the propriety of the instruction.

17
No. 1-06-0010

court erred when it denied his motion to suppress statements.

I. Assistance of Counsel

A defendant alleging ineffective assistance of counsel must

establish (1) the attorney's performance fell below an objective

standard of reasonableness, and (2) this deficient performance

prejudiced the defendant. Strickland v. Washington, 466 U.S.

668, 687-88, 80 L. Ed. 2d 674, 693, 104 S. Ct. 2052, 2064 (1984);

People v. Albanese, 104 Ill. 2d 504, 526, 473 N.E.2d 1246 (1984).

A defendant's failure to satisfy either prong of the Strickland

test defeats a claim of ineffective assistance of counsel.

Strickland, 466 U.S. at 687, 80 L. Ed. 2d at 693, 104 S. Ct. at

2064.

When reviewing an attorney's performance, this court "must

indulge a strong presumption that counsel's conduct falls within

the wide range of reasonable professional assistance; that is,

the defendant must overcome the presumption that, under the

circumstances, the challenged action 'might be considered sound

trial strategy.'" Strickland, 466 U.S. at 689, 80 L. Ed. 2d at

694-95, 104 S. Ct. at 2065, quoting Michel v. Louisiana, 350 U.S.

91, 101, 100 L. Ed. 83, 93, 76 S. Ct. 158, 164 (1955).

"Generally, matters of trial strategy will not support a claim of

ineffective assistance of counsel unless counsel failed to

conduct any meaningful adversarial testing." People v.

Patterson, 217 Ill. 2d 407, 441, 841 N.E.2d 889 (2005).

18
No. 1-06-0010

To show prejudice "[t]he defendant must show that there is a

reasonable probability that, but for counsel's unprofessional

errors, the result of the proceeding would have been different."

Strickland, 466 U.S. at 694, 80 L. Ed. 2d at 698, 104 S. Ct. at

2068. "A reasonable probability is a probability sufficient to

undermine confidence in the outcome" of the proceeding.

Strickland, 466 U.S. at 694, 80 L. Ed. 2d at 698, 104 S. Ct. at

2068.

The Strickland Court also noted that there are some

circumstances "where prejudice is presumed." Strickland, 466

U.S. at 692, 80 L. Ed. 2d at 696, 104 S. Ct. at 2067. In United

States v. Cronic, 466 U.S. 648, 656-57, 80 L. Ed. 2d 657, 666,

104 S. Ct. 2039, 2045-46 (1984), the Supreme Court explained

"[t]he right to the effective assistance of counsel is thus the

right of the accused to require the prosecution's case to survive

the crucible of meaningful adversarial testing. *** But if the

process loses its character as a confrontation between

adversaries, the constitutional guarantee is violated." Cronic,

466 U.S. at 656-57, 80 L. Ed. 2d at 666, 104 S. Ct. at 2045-46.

Our supreme court adopted this principle in People v. Hattery,

109 Ill. 2d 449, 464-65, 488 N.E.2d 513 (1985).

In Hattery, the defendant was charged with murder and

entered a not guilty plea. At trial, the defendant's counsel

admitted the defendant's guilt in his opening statement.

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No. 1-06-0010

"'We are not asking you to find

Charles Hattery not guilty. At the end

of your deliberations, you will find him

guilty of murder. We are asking you to

consider the evidence that you hear

today and in the next few days to

explain why he did the horrible thing

that he did. Once you have found him

guilty, we will proceed and you will

find him eligible for the death penalty.

The question, and the only question

facing you, will be whether to impose

the death penalty on Charles Hattery.'"

(Emphasis omitted.) Hattery, 109 Ill.

2d at 458-59.

Defense counsel did not present any evidence and did not make a

closing statement; instead, counsel cross-examined the State's

witnesses in an attempt to show the defendant was compelled to

commit the crime. While compulsion is not a defense to murder,

it can be "a mitigating circumstance sufficient to preclude the

imposition of the death penalty." Hattery, 109 Ill. 2d at 459.

The court did not analyze Hattery's ineffective assistance

of counsel claim pursuant to Strickland. Instead, the court

relied on Cronic, 466 U.S. at 659, 80 L. Ed. 2d at 668, 104 S.

20
No. 1-06-0010

Ct. at 2047, for the proposition that when "counsel entirely

fails to subject the prosecution's case to meaningful adversarial

testing, then there has been a denial of Sixth Amendment rights

that makes the adversar[ial] process itself presumptively

unreliable."

The court found Hattery's trial counsel did not subject the

State's case to meaningful adversarial testing. "The concession

of defendant's guilt by his attorneys was unequivocal." Hattery,

109 Ill. 2d at 464. Trial counsel's "strategy--which attempted

to show that defendant was guilty of murder but undeserving of

the death penalty--was totally at odds with defendant's earlier

plea of not guilty." Hattery, 109 Ill. 2d at 464. The comments

regarding the defendant's guilt "impressed upon the jury the

false notion that the guilt or innocence of the defendant was not

at issue, but, rather, had already been decided." Hattery, 109

Ill. 2d at 464. Thus, Hattery's counsel was ineffective because

his "actions deprived defendant of the right of having the issue

of his guilt or innocence presented to the jury as an adversarial

issue." Hattery, 109 Ill. 2d at 464.

In this case, the respondent advocates for the application

of the Cronic presumption of prejudice because he contends his

counsel conceded his guilt during opening statements.

However, "[t]he rule in Hattery must be narrowly construed."

People v. Johnson, 128 Ill. 2d 253, 269, 538 N.E.2d 1118 (1989).

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No. 1-06-0010

It is not per se ineffective assistance of counsel when a

defendant's attorney "concedes his client's guilt to offenses in

which there [was] overwhelming evidence of that guilt." Johnson,

128 Ill. 2d at 269. "In situations where there is overwhelming

evidence of guilt and no defense, if counsel contests all charges

he is liable to lose credibility with the trier of fact when it

comes to charges where a legitimate defense exists." Johnson,

128 Ill. 2d at 270. If defense counsel concedes the defendant's

guilt, "ineffectiveness may be established; however, the

defendant faces a high burden before he can forsake the two-part

Strickland test." Johnson, 128 Ill. 2d at 269-70.

The respondent relies on People v. Chandler, 129 Ill. 2d

233, 245-46, 543 N.E.2d 1290 (1989), to support his contention

his ineffective assistance of counsel claim meets that burden.

In Chandler, the defendant was charged with murder,

residential burglary, and arson. The defendant admitted to

police he was in the victim's home, but denied killing the

victim. At trial, the defense did not present any witnesses,

even though defense counsel's opening statement told the jury the

defendant was going to testify. In his closing argument, defense

counsel admitted the defendant entered the victim's house, but he

did not stab the victim. "He concluded, 'I don't think if you

take a realistic view of this that you can find defendant guilty

of murder.'" Chandler, 129 Ill. 2d at 239.

22
No. 1-06-0010

On appeal, the defendant argued he was "denied his sixth

amendment right to effective assistance of counsel when his trial

attorney conceded defendant's guilt at trial." Chandler, 129

Ill. 2d at 241. The defendant, relying on Hattery, argued that

his trial counsel's actions did not subject the State's case to

meaningful adversarial testing.

Our supreme court disagreed, finding "counsel's remarks did

not completely and unequivocally concede defendant's guilt."

Chandler, 129 Ill. 2d at 245. Unlike the defense counsel in

Hattery, Chandler's counsel "vigorously argued that the jury

should believe everything [the] defendant told the police,

including defendant's denial of killing the victim, and did not

concede any fact to which defendant did not admit in his

statements to the police." Chandler, 129 Ill. 2d at 245-46. The

court "[did] not believe that counsel's statements, standing

alone, warrant forsaking the Strickland test under the Hattery

analysis." Chandler, 129 Ill. 2d at 246.

Though the court ultimately found Chandler's counsel was

ineffective, it did so under Strickland, not Cronic. Thus,

Chandler provides no direct support for the respondent's

contention that Cronic should be applied here.

Our supreme court further explained its holding in Chandler

in People v. Shatner, 174 Ill. 2d 133, 147-48, 673 N.E.2d 258

(1996). In Shatner, the defendant was convicted of first degree

23
No. 1-06-0010

murder, armed robbery, and arson. The defendant appealed,

alleging his counsel was ineffective for failing to present a

defense to the charge of felony murder. Defense counsel told the

jury in his closing statement "'if he's guilty of anything, he's

guilty of robbery.'" Shatner, 174 Ill. 2d at 143. Shatner

contended his counsel's defense strategy was "analogous" to the

strategy used in Hattery, because defense counsel admitted to

felony murder by conceding the defendant took part in a robbery

during which the victim was killed. Shatner, 174 Ill. 2d at 145.

The court did not agree. The Shatner court examined the

record and found the defendant's counsel was his advocate

throughout the proceedings. Thus, the court declined the

defendant's "invitation to discard the two-prong Strickland test

in reviewing his ineffective assistance claim." Shatner, 174

Ill. 2d at 146. Accordingly, the court examined whether defense

counsel's performance fell below an objective standard of

reasonableness by comparing Shatner's trial counsel's performance

to that of trial counsel in Chandler.

In Shatner, as in Chandler, "defense counsel did not

vigorously challenge the prosecution's claim that defendant

participated in the robbery of the victim." Shatner, 174 Ill. 2d

at 147. However, the court found Chandler did "not mandate a

finding of ineffective assistance of counsel" because the

"court's finding of ineffective assistance did not rest

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No. 1-06-0010

exclusively on Chandler's counsel's alleged failure to develop a

theory of innocence." Shatner, 174 Ill. 2d at 147. Chandler's

counsel was "deficient because he failed to cross-examine several

key prosecution witnesses; cross-examined others in an extremely

conclusory manner; and called no witnesses to testify." Shatner,

174 Ill. 2d at 147.

On the other hand, Shatner's counsel cross-examined the

State's witnesses, presented defense witnesses, and pursued a

trial strategy that sought to "minimize his client's admitted

involvement in the robbery" by shifting the blame to someone

else. Shatner, 174 Ill. 2d at 148. Shatner's "counsel sought to

convince the jury that defendant's minimal involvement in the

scheme warranted either a finding of innocence or a conviction

for robbery only." Shatner, 174 Ill. 2d at 148. Though this

strategy was "risky," it was "perhaps the only strategy which

could have been seriously pursued given defendant's admissible

incriminating statements." Shatner, 174 Ill. 2d at 148.

"Ultimately, it was the defendant's own

statements, *** and not the actions or

strategy of his counsel, which

undermined any claim of innocence that

defendant may have had. If a defendant

enters a not-guilty plea in the face of

overwhelming evidence of his guilt, we

25
No. 1-06-0010

are unwilling to find that his counsel

was ineffective simply because he failed

to contrive a leak-proof theory of

innocence on defendant's behalf. To do

so would effectively require defense

attorneys to engage in fabrication or

subterfuge." Shatner, 174 Ill. 2d at

148.

Here, as in Chandler and Shatner, the respondent has not met

the high burden necessary to forsake the Strickland test. Though

the respondent contends the State's case was not subjected to

meaningful adversarial testing because his trial counsel

"repeatedly conceded [his] guilt to the jury," the record does

not support the assertion that the respondent's trial counsel's

performance was equivalent to counsel's performance in Hattery.

The respondent's counsel did not admit anything more than the

facts of the respondent's statement to the police. He never told

the jury the respondent was guilty of murder. In fact, he asked

the jury to find the respondent not guilty because the "true

perpetrators" of the murder had been arrested.

The respondent's counsel vigorously advocated for the

respondent before, during, and after trial. Pretrial, the

respondent's counsel moved to quash the respondent's arrest and

to suppress the respondent's statements. At trial, counsel gave

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No. 1-06-0010

opening and closing statements, cross-examined the majority of

the State's witnesses, presented defense witnesses, and objected

often. Posttrial, counsel filed a motion for a new trial

alleging various trial errors.

The respondent's trial did not approach the "adversarial

breakdown of the Hattery proceedings, where defense counsel acted

not as an advocate for the accused, but as a proponent for the

prosecution." Shatner, 174 Ill. 2d at 146. Thus, we decline to

review the respondent's ineffective assistance of counsel claim

pursuant to Cronic. We will review the claim pursuant to the

two-prong Strickland test.

The respondent argues his trial counsel's performance was

ineffective, because, as in Chandler, a "misapprehension" of the

law led the respondent's counsel to admit the respondent

participated in a felony during which the victim was killed.

"However, *** the determination in Chandler that counsel was

ineffective was not based simply on counsel's apparent failure to

comprehend the law of accountability. [Citations.] Rather, ***

counsel's misapprehension of accountability had infected the

entire conduct of the trial." People v. Williams, 192 Ill. 2d

548, 568, 736 N.E.2d 1001 (2000).

This case is more analogous to Shatner than to Chandler.

Here, the respondent's counsel did not dispute the respondent's

participation in the plan to steal a car or that an accomplice

27
No. 1-06-0010

actually killed the victim. Rather, counsel admitted to the

contents of the videotaped statement and nothing more. Counsel's

strategy was apparently to try to convince the jury that though

the respondent went to the park to steal a car, his mere presence

when the victim was shot was not enough to hold him accountable

for the victim's death. See People v. Perez, 189 Ill. 2d 254,

268, 725 N.E.2d 1258 (2000) ("presence at the commission of the

crime, even when joined with flight from the crime or knowledge

of its commission, is not sufficient to establish

accountability"). In fact, counsel argued the respondent had no

idea a gun was involved until it was "whipped" out and submitted

jury instructions attempting to define what actions do not make

one accountable for the actions of another.

Here, as in Shatner, the proceedings did not lack an

adversarial character. The respondent's counsel cross-examined

the State's witnesses, presented defense witnesses, moved to

suppress the respondent's videotaped statement during pretrial

proceedings, and objected often during trial. Though the

respondent contends his trial counsel conceded the respondent's

guilt "long before the evidence could have seemed overwhelming,"

the respondent's counsel knew the respondent's videotaped

statement was going to be shown to the jury. Instead of

advancing a theory of complete innocence that would be rebutted

by the video, counsel admitted to the respondent's knowledge of

28
No. 1-06-0010

the plan to steal a car to contrast the respondent's lack of

knowledge when it came to the homicide.

Respondent's counsel also attempted to cast doubt on the

legitimacy of the respondent's videotaped statement by examining

the detectives and the assistant State's Attorney regarding

attempts to contact the respondent's parents or guardians and an

alleged promise not to charge the respondent if he made a

statement.

As in Shatner, it was the respondent's "own statements ***

which undermined any claim of innocence" the respondent's counsel

might have advanced. Shatner, 174 Ill. 2d at 148. Had the

respondent's counsel argued the respondent was innocent of all

charges, he would have lost credibility with the jury when the

respondent's videotaped statement was played. Instead, the

respondent's counsel admitted to the truth of the statement,

argued the respondent should not be held accountable for a murder

in which he did not participate, and repeatedly asked the jury to

find the respondent not guilty.

Viewing counsel's performance under "the totality of the

circumstances" of this case, the respondent's counsel's strategic

decision to admit to the facts of the respondent's statement and

nothing more was not unreasonable. Shatner, 174 Ill. 2d at 147.

Thus, the respondent's claim of ineffective assistance of counsel

fails.

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No. 1-06-0010

II. Motion to Suppress

The respondent next contends the trial court erred when it

denied his motion to suppress statements when "the record

affirmatively shows [the respondent] did not understand his right

to counsel and therefore could not validly waive it." The

respondent alleges his testimony at the suppression hearing, his

"limited mental capacity," and the lack of a concerned adult who

helped him to understand his rights show that he did not

understand his Miranda rights and, thus, could not have knowingly

waived them.

The State contends the respondent waived this argument for

the purpose of his appeal by failing to include it in his

posttrial motion. See People v. Enoch, 122 Ill. 2d 176, 186, 522

N.E.2d 1124 (1988) (to preserve an issue for appeal, the claimed

error must be raised at trial and in a written posttrial motion).

The respondent responds that counsel's failure to include

this claim in his posttrial motion was ineffective assistance of

counsel. We disagree.

The respondent's posttrial motion argued the trial court

erred when it denied the respondent's motion to quash his arrest

for lack of probable cause, that the jury "completely

disregarded" the testimony of the respondent's mother and

grandmother, that the State's sole eyewitness did not identify

the respondent, that the police committed misconduct, and that

30
No. 1-06-0010

the trial court erred when it answered the jury's note. Though

the respondent's counsel did not include a claim regarding the

respondent's alleged misunderstanding of his Miranda rights, it

is possible that was a strategic decision.

The respondent's motion to suppress statements was denied

after a lengthy hearing and a specific finding that the

respondent was not credible. Under the circumstances, it was not

unreasonable for the respondent's counsel not to include the

claim in his motion for a new trial.

Even were we to relax the waiver rule, the record does not,

as the respondent contends, "affirmatively" show the respondent

did not understand his right to counsel.

The respondent does not deny he was given his Miranda rights

several times. The respondent also does not deny he told

Swiderek and Armbrust that he understood those rights. The

respondent told Swiderek the right to an attorney "means [the

respondent had] the right to have an attorney" when speaking to

the police. When the respondent told Armbrust he did not

understand the right to have an attorney during questioning, she

explained that right to the respondent several times.

However, to support his contention the State did not prove

he made a knowing waiver, the respondent points to his

explanation of the right to an attorney, "I don't have to talk

unless I want my lawyer here" as proof he did not understand the

31
No. 1-06-0010

right to an attorney.

When reviewing a ruling on a motion to suppress, this court

"will accord great deference to the trial court's factual

findings, and will reverse those findings only if they are

against the manifest weight of the evidence; however, the court

will review de novo the ultimate question posed by the legal

challenge to a trial court's ruling on a motion to suppress."

People v. Braggs, 209 Ill. 2d 492, 505, 810 N.E.2d 472 (2003).

Factual findings receive this deference because the trial court

"assessed credibility [and] demeanor." People v. Bernasco, 138

Ill. 2d 349, 364, 562 N.E.2d 958 (1990).

"The State has the burden of proving, by a preponderance of

the evidence, that defendant made a knowing, intelligent and

voluntary waiver of his or her rights." People v. Reid, 136 Ill.

2d 27, 51, 554 N.E.2d 174 (1990). "Once the State has

established its prima facie case, the burden shifts to the

defendant to show that his waiver was not knowing, intelligent or

voluntary." Reid, 136 Ill. 2d at 51. "[I]n order to effect an

intelligent and knowing wavier of Miranda rights, a defendant

must have ' " 'a full awareness of both the nature of the right

being abandoned and the consequences of the decision to abandon

it.' " ' " Braggs, 209 Ill. 2d at 515, quoting Bernasco, 138

Ill. 2d at 360, quoting Patterson v. Illinois, 487 U.S. 285, 292,

101 L. Ed. 2d 261, 272, 108 S. Ct. 2389, 2395 (1988).

32
No. 1-06-0010

"In determining whether a defendant knowingly and

intelligently waived his Miranda rights, a court must consider

the totality of the circumstances, including the characteristics

of the defendant and the details of the interrogation, without

any one circumstance or factor controlling." Reid, 136 Ill. 2d

at 54-55; see also Bernasco, 138 Ill. 2d at 368 ("[w]hether a

defendant intelligently waived his right to counsel depends, in

each case, on the particular facts and circumstances of that

case, including the defendant's background, experiences, and

conduct").

"[T]he receiving of an incriminating statement by a juvenile

is a sensitive concern." People v. Prude, 66 Ill. 2d 470, 476,

363 N.E.2d 371 (1977). "[C]are must be taken to assure that a

juvenile's incriminating statement was not the product of

ignorance of rights or of adolescent fantasy, fright, or

despair." In re W.C., 167 Ill. 2d 307, 328, 657 N.E.2d 908

(1995). A juvenile's "mental capacity *** must be taken into

consideration in determining whether a waiver was valid." W.C.,

167 Ill. 2d at 328. The existence of a "mental deficiency *** is

a factor which must be considered in the totality of the

circumstances under which the right to counsel was waived or a

statement or confession was given." W.C., 167 Ill. 2d at 328.

Though the respondent told Armbrust he understood the right

to an attorney after she explained it to him, the respondent

33
No. 1-06-0010

later said that he did not understand any of his rights. The

respondent claimed he only said that he understood his rights

because he was promised he was not going to be charged.

At the completion of the suppression hearing, the trial

court found the respondent was not credible. The respondent

testified he understood his Miranda rights, he understood some of

his Miranda rights and he understood the remaining rights after

they were explained to him, and that he never understood his

rights, but he said he did because he had been promised that he

was not going to be charged if he made a statement. Swiderek and

Armbrust testified the respondent told them he understood his

rights, could explain his rights, and asked for an explanation of

the rights he did not understand.

It is the trial court's "responsibility to judge the

credibility of the witnesses, and to consider and weigh each of

the factors." Reid, 136 Ill. 2d at 59. Here, after hearing the

respondent's testimony and observing his demeanor, the trial

court did not find the respondent credible, and instead found a

knowing and intelligent waiver. Considering the totality of the

circumstances, that finding was not against the manifest weight

of the evidence.

The respondent next argues he did not understand his Miranda

rights because of his "limited mental capacity."

The respondent relies on the "Amended Social Investigation

34
No. 1-06-0010

Report" as "scientific support" for the respondent's alleged

inability to understand his rights. According to this report,

the respondent was diagnosed with a "level three learning

disability" and read at a third-grade level.

However, nothing in the record suggests the respondent's

third-grade reading level prevented him from understanding

Swiderek's and Armbrust's oral explanations of his rights.

Additionally, the fact the respondent was in special education

classes does not lead directly to the conclusion that at age 15

and after at least four other arrests, the respondent did not

understand his rights. The report which analyzed the

respondent's reading level also stated that the respondent's

academic difficulties were because of his truancy and that his

current teacher though the respondent was a "bright kid" who

understood "abstract things."

The respondent next contends his statements should be

suppressed because no "concerned adult" helped him to understand

his rights.

However, the record indicates the respondent spoke to

several concerned adults. The respondent spoke to his

grandfather and youth officer Parsons before making any

statements. After the respondent made his initial statements,

but before the videotaped statement, he spoke to both his mother

and grandmother. The record indicates the respondent's

35
No. 1-06-0010

grandmother was in the room when the respondent was given his

Miranda rights before making the videotaped statement. The

respondent's grandmother heard the respondent state he understood

each right and the respondent's explanation of each right in his

own words.

The trial court's determination that the respondent

knowingly and intelligently waived his rights was not against the

manifest weight of the evidence. We therefore conclude the

respondent's suppression motion was properly denied.

CONCLUSION

For the reasons stated above, the decision of the circuit

court of Cook County is affirmed.

Affirmed.

CAHILL, P.J., and R. GORDON, J., concur

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No. 1-06-0010

REPORTER OF DECISIONS - ILLINOIS APPELLATE COURT
_________________________________________________________________

In re Dante W., a Minor
(The People of the State of Illinois,
Petitioner-Appellee, v. Dante W.,
Respondent-Appellant).

________________________________________________________________

No. 1-06-0010

Appellate Court of Illinois
First District, First Division

Filed: June 16, 2008
_________________________________________________________________

JUSTICE GARCIA delivered the opinion of the court.

CAHILL, P.J., and R. GORDON, J., concur.
_________________________________________________________________

Appeal from the Circuit Court of Cook County
Honorable Rodney Hughes Brooks, Judge Presiding
_________________________________________________________________

For RESPONDENT - Michael J. Pelletier, Deputy Defender
APPELLANT Debra Loevy-Reyes, Assistant Appellate Defender
Office of the State Appellate Defender
203 North LaSalle Street-24th Floor
Chicago, Illinois 60601

For PETITIONER - Richard A. Devine, State's Attorney
APPELLEE James E. Fitzgerald, Assistant State's Attorney
Peter Fischer, Assistant State's Attorney
Clare Wesolik Connolly, Assistant State's Attorney
State's Attorney, County of Cook
Richard J. Daley Center, Room 309
Chicago, Illinois 60602

37