People v. Wright ( 2016 )

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Date: 2016.02.22 11:05:39
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People v. Wright, 2016 IL App (5th) 120310
Appellate Court THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption ODEY WRIGHT, Defendant-Appellant.
District & No. Fifth District
Docket No. 5-12-0310
Filed January 15, 2016
Decision Under Appeal from the Circuit Court of Marion County, No. 11-CF-233; the
Review Hon. Michael D. McHaney, Judge, presiding.
Judgment Reversed and remanded.
Counsel on Michael J. Pelletier, Ellen J. Curry, and Alexander G. Muntges, all of
Appeal State Appellate Defender’s Office, of Mt. Vernon, for appellant.
Matt Wilzbach, State’s Attorney, of Salem (Patrick Delfino, Stephen
E. Norris, Kelly M. Stacey, and Rebecca E. McCormick, all of State’s
Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
Panel JUSTICE GOLDENHERSH delivered the judgment of the court, with
opinion.
Presiding Justice Schwarm concurred in the judgment and opinion.
Justice Welch dissented, with opinion.
OPINION
¶1 After a jury trial in the circuit court of Marion County, defendant, Odey Wright, was
convicted of two counts of armed robbery (720 ILCS 5/18-2(a)(2) (West 2010)) and one
count of unlawful possession of a controlled substance (less than 15 grams of cocaine) (720
ILCS 570/402(c) (West 2010)). He was sentenced to 40 years on each count of armed
robbery, which included an additional 15 years for use of a firearm. He was also sentenced to
an extended-term sentence of six years for unlawful possession. The trial court ordered the
sentences to run consecutively for a total of 86 years, plus 3 years’ mandatory supervised
release. Defendant raises three issues on appeal: (1) whether the trial court erred in denying
his motion to suppress; (2) whether the trial court committed plain error in responding to a
question posed by the jury during deliberations; and (3) whether defense counsel was
ineffective for (a) failing to request a lesser-included instruction and/or (b) failing to preserve
the jury instruction error underlying the second issue. We reverse and remand.
¶2 FACTS
¶3 On August 5, 2011, at approximately 9 p.m., the Centralia police department received a
911 call from the Caddy Shack bar informing police a masked man carrying a sawed-off
shotgun came into the bar and robbed the establishment. There was surveillance tape of the
crime. On August 6, 2011, an identical crime was committed at the Centralia Huck’s
Convenience Store. There was also video footage of this crime. Sergeant Steve Prather of the
Centralia police department saw the security footage of the masked suspect from the first
robbery and believed that defendant, whom Prather had known throughout his law
enforcement career, was the masked suspect.
¶4 In the early morning hours of August 7, 2011, Sergeant Prather learned defendant was at
a local bar. Prather coordinated efforts among police to arrest defendant as he exited the bar.
At defendant’s first appearance on August 8, 2011, the State asserted defendant was read his
rights pursuant to Miranda v. Arizona, 384 U.S. 436 (1966), and was questioned at the scene
of his arrest, during which defendant “denied being involved in the robbery, but kept
indicating that if police would let him go, he could tell them where the gun and the mask
were and who the real robber was.” However, it was later determined defendant had not been
read his Miranda rights, as Prather made a conscious decision not to Mirandize him. Prather
transported defendant to the police station after his arrest, where defendant made additional
statements.
¶5 Defense counsel filed a motion to suppress statements made by defendant after his arrest.
On March 19, 2012, the trial court held a hearing on the motion to suppress. Prather testified
he was on duty during the early morning hours of August 7, 2011, working the 11 p.m. to 7
a.m. shift. During his shift, there were several calls regarding an armed robbery of a Huck’s
store. The robbery occurred a little before midnight. Prather responded to the scene, where he
watched the video surveillance tape which showed a large black man, approximately 300
pounds, wearing a mask. It reminded him of an armed robbery which occurred the previous
evening at the Caddy Shack bar. Prather recalled, “The main thing was the size and the
demeanor, the mannerisms, and walk of the individual that had participated in both of them.”
After watching the video, Prather recalled seeing a similar man with the same type of walk at
Party Liquors earlier in the evening. Prather could not remember the man’s name, but after
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talking to the manager of Party Liquors, April Smith, Prather recalled defendant’s name.
Prather testified he has known defendant nearly his entire 26-year career as a police officer.
¶6 Prather told Smith to call him if defendant showed up at Party Liquors. Approximately 15
to 30 minutes later, the dispatcher informed Prather that a subject matching the description he
gave to April Smith showed up at Party Liquors and was spending a lot of money. Prather
called Smith and asked her to tell him what type of clothing defendant was wearing. It was
the same clothing Prather saw the masked gunman wearing in the Huck’s video. Prather
advised all police units to go to Party Liquors and surround the perimeter. Prather decided to
wait until defendant exited the establishment to arrest him because there was a large crowd
and the police did not want to go inside to make an arrest.
¶7 Prather saw defendant exit Party Liquors at approximately 1:20 a.m. He was wearing a
short-sleeved gray shirt, blue jeans, and white tennis shoes and had the same body type as the
person who robbed the Huck’s store. Prather said defendant exited the building with “one of
the Johnson girls.” Prather was not sure if it was Sharon or Inez Johnson, but he knew it was
one of them. After defendant got away from the crowd, Prather drew his taser and told
defendant to get down on the ground. Defendant was hesitant, but complied when other
officers arrived. Defendant was handcuffed. Prather agreed defendant was “clearly in
custody.”
¶8 Prather explained why he did not read defendant his Miranda rights as follows:
“I had no intention of questioning him whatsoever there on scene. Pretty much in my
mind I have known, I call [defendant] what I would say is old school, I didn’t expect
to get a confession from him or pretty much for him to even talk about it. It wasn’t
my intent to even interrogate him.”
Prather told defendant he was being arrested for two armed robberies. Defendant denied any
involvement. Prather then informed defendant of the two videos and told him he was
welcome to view the videos.
¶9 Prather placed defendant in his patrol car and drove about a block east to where the
Johnson sisters were walking. The police knew there was a connection between Sharon
Johnson and defendant. Sharon was defendant’s long-time girlfriend with whom he has three
grown children. When the police told Sharon they wanted to question her, she wanted to give
her personal items to her sister. According to Prather, Sharon pulled “a bunch of currency
from her bra.” She took $40 from her bra. The currency consisted of 4 five-dollar bills and 20
one-dollar bills. Police then led Sharon to another patrol car and took her to the police station
for questioning.
¶ 10 When Prather got back in his patrol car, defendant asked him why Sharon was being
arrested. Prather replied that the police believed Sharon might have knowledge of the crime
and some of the money she pulled from her bra might have come from the robbery.
Defendant told Prather the police needed to let Sharon go because she did not know anything
about the crime.
¶ 11 Defendant continued to deny any involvement in the crime. Prather testified that
defendant then said that if the police let him and Sharon go free, he could “give us the
individual that had robbed the–had committed both robberies and tell us where the gun and
mask were. Up to that point the word mask had never been used or gun.” Prather told
defendant he was not going to let him go free because based upon the surveillance video, he
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was convinced defendant was involved. Prather transported defendant to the police station,
where he was placed in a holding cell, where he remained handcuffed.
¶ 12 A video camera recorded the events in the holding cell. The video shows Prather
speaking with defendant several times while defendant was in the holding cell. Prather
admitted defendant was not read his Miranda rights at the police station and explained the
lack of Miranda warnings:
“It’s just one of those things, I have been on long you have [sic], and I have known
[defendant] long enough that he is not–he is not that 17 year old kid that I am going to
buffalo into telling him something. And I felt strong enough about the video I had
watched, with the clothes he was wearing, that I wasn’t going to question him. That
was never my intent.”
Prather testified it would have been a waste of time to Mirandize defendant.
¶ 13 In the holding cell, defendant continued to assert he had not been involved in the armed
robberies. Defendant said Prather should know he does not commit this kind of crime.
Prather agreed, except pointed out to defendant that defendant had been convicted of an
armed robbery “up north.” Defendant told Prather he could lead Prather to the guys who gave
him the clothes. Prather told defendant that was ridiculous to even say that. He told defendant
it was not “fantastic police work, it was a simple video surveillance system that had him
hemmed up and charged with what he was charged with.” Prather admitted he asked
defendant a question while in the holding cell. He specifically asked him who had given him
the clothes. Defendant did not respond.
¶ 14 The videotape of defendant in the holding cell was introduced into evidence. Prather
testified he watched the video the night before the hearing and admitted there was a time
during which defendant can be heard yelling, “I want a lawyer.” Prather said he was not in
the holding cell with defendant at that time and was not aware defendant made such a
statement until the night before when he watched the videotape.
¶ 15 On cross-examination, Prather admitted that once defendant said the police were
mistaken, Prather defended his position and continued to engage defendant in conversation.
Prather also admitted defendant did not say anything about a gun and a mask until after
defendant saw Sharon being questioned by police.
¶ 16 Ultimately, the motion to suppress was denied, and Prather was permitted to testify at
trial about defendant’s statements while in custody. In its order the trial court stated it found
Prather “completely credible” and found “[t]he banter between defendant and officer Prather,
which the defendant initiated, does not even approach the type of situation in which the
concerns that govern Miranda are implicated.” Defense counsel renewed his arguments
concerning suppression at the close of voir dire and in a posttrial motion.
¶ 17 All three charges proceeded to jury trial. Prather’s testimony was consistent with his
testimony during the suppression hearing as to how defendant was arrested, including the
incriminating statements defendant made while in custody. Prather also testified when
defendant was arrested he had $75 cash and a small, white-colored rock in his pants’ pocket.
Prather recognized the rock as cocaine.
¶ 18 Sharon Johnson testified she was with defendant when he was arrested. They have a
long-standing relationship and have three children together. The children are all over the age
of 20. Defendant gave her $28 dollars while they were in Party Liquors. He told her he had
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not done much for her or the children and wanted her to have it. She did not think much
about it and just stuffed it in her bra.
¶ 19 The State also offered the testimony of Mark Owensby, an expert in firearm recognition.
Owensby testified over defense counsel’s objection that the same firearm was used in both
robberies. His conclusion was based primarily on security footage stills from the second
robbery. At the close of the State’s evidence, defense counsel moved for a directed verdict on
the first robbery on the basis that Owensby testified he was unable to identify whether a
firearm was used during the first robbery. Defense counsel also argued “with respect to [the
first robbery], there is no lesser included of aggravated robbery or it being like a weapon or
similar weapon or a weapon that had the appearance of a firearm such as the air soft.” The
trial court denied the motion. As to the possession charge, the State offered the testimony of
Captain Densmore for chain of custody, and Joel Gray, an expert, who testified the substance
found on defendant tested positive for cocaine base.
¶ 20 During closing argument, the State argued the strength of its case rested on defendant’s
statements. The prosecutor specifically asserted that “the bottom line” in the case was that
defendant made statements no innocent man would make. In response, defense counsel
argued the State failed to present direct evidence of defendant’s guilt of the armed robbery
charges, and the State’s case was at best coincidental.
¶ 21 Defense counsel further asserted defendant’s incriminating statements were the result of
Prather deliberately choosing not to Mirandize defendant and the result of defendant’s
attempt to barter for his girlfriend’s freedom. Defense counsel admitted defendant was guilty
of possession; however, he asked the jury not to hold that against defendant when
determining his fate on the armed robbery charges.
¶ 22 During deliberations, the jury sent the following question to the judge: “The jury is
questioning the fact that the Miranda rights were not read to the defendant. How does it
impact our deliberations?” Ultimately, the trial court responded to the jury with a note
stating, “IT DOES NOT.” After completing deliberations, the jury returned guilty verdicts on
all three counts. The trial court sentenced defendant to 40 years on each armed robbery count
and 6 years on the possession count, and ordered the sentences to run consecutively for a
total of 86 years. Defendant now appeals.
¶ 23 ANALYSIS
¶ 24 The first issue is whether the trial court erred in denying defendant’s motion to suppress.
Defendant raises three arguments with regard to this issue: (1) the trial court’s finding that
defendant initiated the exchange with Prather is against the manifest weight of the evidence
and shows the trial court’s factual findings are wrong and not worthy of deference by this
court; (2) Prather did, in fact interrogate defendant; and (3) the State cannot prove admission
of defendant’s incriminating statements was harmless beyond a reasonable doubt. The State
concedes defendant was in custody for purposes of Miranda at the time he made the
statements to Prather and that defendant was not Mirandized, but argues the trial court did
not err in denying the motion to suppress because Prather’s testimony and the video showing
defendant in the holding cell indicate that defendant is the one who asked questions, claimed
his innocence, and offered to assist the police with their investigation. Officers were merely
responding to defendant.
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¶ 25 The fifth amendment provides no person shall be compelled in any criminal case to be a
witness against himself. U.S. Const., amend. V. Pursuant to Miranda, “the prosecution may
not use statements, whether exculpatory or inculpatory, stemming from custodial
interrogation of the defendant unless it demonstrates the use of procedural safeguards
effective to secure the privilege against self-incrimination.” 384 U.S. at 444. These
safeguards include the now-familiar Miranda warnings or their equivalent.
¶ 26 In Miranda, the Supreme Court concluded that “without proper safeguards the process of
in-custody interrogation of persons suspected or accused of crime contains inherently
compelling pressures which work to undermine the individual’s will to resist and to compel
him to speak where he would not otherwise do so freely.” 384 U.S. at 467. Defendant
contends that because he received no Miranda warnings, his statements should have been
suppressed. While the State concedes defendant was in custody at the time he made the
statements, it insists Prather’s conduct did not constitute interrogation.
¶ 27 When reviewing a trial court’s denial of a motion to suppress, a bifurcated standard of
review is applied. We review the trial court’s factual findings under a manifest weight
standard, but we apply a de novo standard to the ultimate question of whether the evidence
should be suppressed. People v. Bonutti, 212 Ill. 2d 182, 188, 817 N.E.2d 489, 492 (2004).
¶ 28 Miranda suggests interrogation refers only to actual “questioning initiated by law
enforcement officers” (384 U.S. at 444); however, later clarification by the Supreme Court
indicates police practices can be a violation of Miranda even though no express questioning
by police is involved. For example, in Rhode Island v. Innis, 446 U.S. 291 (1980), the
Supreme Court reviewed the “interrogation environment” and found some police practices
violate Miranda even without express questioning, specifically stating as follows:
“[T]he Miranda safeguards come into play whenever a person in custody is subjected
to either express questioning or its functional equivalent. That is to say, the term
‘interrogation’ under Miranda refers not only to express questioning, but also to any
words or actions on the part of the police (other than those normally attendant to
arrest and custody) that the police should know are reasonably likely to elicit an
incriminating response from the suspect. The latter portion of this definition focuses
primarily upon the perceptions of the suspect, rather than the intent of the police. This
focus reflects the fact that the Miranda safeguards were designed to vest a suspect in
custody with an added measure of protection against coercive police practices,
without regard to objective proof of the underlying intent of the police. A practice
that the police should know is reasonably likely to evoke an incriminating response
from a suspect thus amounts to interrogation. But, since the police surely cannot be
held accountable for the unforeseeable results of their words or actions, the definition
of interrogation can extend only to words or actions on the part of police officers that
they should have known were reasonably likely to elicit an incriminating response.”
(Emphasis in original.) 446 U.S. at 300-02.
Accordingly, our focus is on defendant’s perceptions, not on Prather’s intentions.
¶ 29 Unfortunately, in the instant case, the focus at the suppression hearing was on Prather’s
intentions rather than defendant’s perceptions. At the hearing, Prather said he did not issue
Miranda because defendant was “old school” and Prather never expected to get a confession
out of him or even expected him to talk about it, so “[i]t wasn’t my intent to even interrogate
him.” Later in the hearing, Prather admitted he did not advise defendant of his Miranda
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rights even when he put defendant in the holding cell because Prather felt the video was
strong enough evidence that he did not need to interrogate defendant. Prather specifically
stated interrogation “was never my intent.”
¶ 30 In Innis, police officers arrested the defendant for robbery with a sawed-off shotgun, but
found him unarmed. While in transit to the police station, the officers had a “brief
conversation” with each other about the missing shotgun, which everyone in the car
including the defendant heard. 446 U.S. at 303. Referring to a nearby school for handicapped
children, one officer said to another, “ ‘[I]t would be too bad if [a] little [handicapped] ***
girl *** pick[s] up the gun, maybe kill[s] herself.’ ” 446 U.S. at 295. At this point, the
defendant interrupted the officers’ conversation and offered to show them where the gun was
located. 446 U.S. at 295. The Court ruled the officers’ conversation did not constitute
interrogation for Miranda purposes because the entire conversation consisted of “no more
than a few off hand remarks” and was not “a lengthy harangue in the presence of the
suspect.” 446 U.S at 303. The officers’ comments were not “particularly ‘evocative’ ” and
there was no evidence the officers were “aware that the [defendant] was peculiarly
susceptible to an appeal to his conscience concerning the safety of handicapped children.”
446 U.S. at 302-03. The Court concluded the officers should not have known their
conversation was reasonably likely to elicit an incriminating response from the defendant and
therefore did not subject the defendant to the functional equivalent of interrogation under
Miranda.
¶ 31 In the instant case, to the contrary, we find Prather’s language and actions particularly
evocative. Not only did Prather handcuff defendant, place him in the back of a patrol car, and
engage him in ongoing conversation, including asking at least one question and discussing
the evidence against him, but also Prather drove defendant to an area where defendant could
see Sharon, the mother of his three children, being questioned by police. Defendant saw
Sharon remove money from her bra and place it on a table. He then saw her being placed in
the back of another police car, at which time he assumed she was being arrested for a crime
in which she was not involved. Unlike the police actions in Innis, the police actions here are
particularly evocative and likely to elicit an incriminating response from defendant. Most
people would be susceptible after seeing their loved one implicated in a crime in which he or
she had not participated.
¶ 32 At the suppression hearing, Prather admitted that after he placed defendant under arrest,
he not only defended his position to defendant that defendant was guilty, but also continued
to engage defendant in conversation. Prather also admitted defendant did not say anything
about either a gun or a mask until after defendant saw Sharon being questioned by police.
Under these circumstances, the trial court’s finding that the “banter” between defendant and
Prather did not approach the type of situation in which the concerns that govern Miranda are
implicated is against the manifest weight of the evidence. The fact that Prather never
intended to question defendant and never expected defendant to make an admission or
incriminating statements is not what matters. Nor does it matter that the trial court found
Prather “completely credible.” What matters is defendant’s perception of the events. What
happened to defendant was the “functional equivalent” of a police interrogation, and it
clearly undermined defendant’s privilege against self-incrimination.
¶ 33 Looking at the totality of the circumstances from defendant’s vantage point, it is clear
Prather subjected defendant to an interrogation likely to elicit an incriminating response
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without providing him the warnings demanded by Miranda. The trial court committed
constitutional error by allowing the State to introduce defendant’s statements at trial, and we
must reverse unless the State establishes that the improper admission of defendant’s
statements was harmless beyond a reasonable doubt. People v. Daniels, 391 Ill. App. 3d 750,
793, 908 N.E.2d 1104, 1137-38 (2009). In order for an error to be harmless, a reviewing
court must be satisfied beyond a reasonable doubt that the error did not contribute to the
defendant’s conviction. Daniels, 391 Ill. App. 3d at 793, 908 N.E.2d at 1138.
¶ 34 In the instant case, during closing, the prosecutor argued as follows:
“Is it just a coincidence that even notwithstanding all the other things I’ve told you,
when Sergeant Prather made contact with this defendant he made statements no
innocent man would make. And that’s really the bottom line. Let Sharon go, she
doesn’t know anything about it. Let us both go and I’ll lead you to the gun and mask
and the real robber. Is that how somebody who is told, you know what, you are being
arrested for two armed robberies, is that how they respond if they know they didn’t do
it? And not only know they didn’t do it, but know who did it? No, they don’t bargain,
they don’t respond that way. They say, whoa, you got the wrong guy, I know who did
it and it was so and so. But that’s not what we heard here. And when that didn’t work,
to go on to say–confronted him because he’s wearing the exact clothing from the
Huck’s video. Say, well, let me go and I’ll tell you who I borrowed these clothes from
in the two hour frame of when the robbery occurred and when you found me which is
just ludicrous on its face. It’s ludicrous.”
Under these circumstances, where the prosecutor specifically asserted to the jury that “the
bottom line” in the case was that defendant made statements no innocent man would make,
we cannot say the admission of defendant’s statements was harmless beyond a reasonable
doubt.
¶ 35 CONCLUSION
¶ 36 We find the trial court erred in denying defendant’s motion to suppress and the admission
of defendant’s statements was not harmless beyond a reasonable doubt. Therefore, we
reverse the trial court’s erroneous admission of defendant’s inculpatory statements and
remand for a new trial. Because the first issue raised by defendant is dispositive, we need not
address the two additional issues raised in this appeal.
¶ 37 For the foregoing reasons, we reverse the judgment of the circuit court of Marion County
and remand for a new trial.
¶ 38 Reversed and remanded.
¶ 39 JUSTICE WELCH, dissenting.
¶ 40 I would affirm the trial court’s decision to deny the defendant’s motion to suppress, as I
believe that the defendant was not under the functional equivalent of an interrogation. As the
trial court noted in its ruling, “Miranda does not require police to interrupt a suspect in the
process of making a spontaneous statement in order to warn him of his constitutional rights,
and a statement made in the absence of any questioning is not inadmissible by virtue of the
failure to give such warning.” The definition of “interrogation” provided by the Supreme
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Court in Innis−that is, any words or actions on the part of the police that the police should
know are reasonably likely to elicit an incriminating response from the suspect−affords a
disconcerting amount of vagueness, giving rise to a slippery slope in its application. As our
courts apply the rule in Innis, I foresee an escalating frustration of law enforcement’s pursuit
of criminal wrongdoing, as police officers feel increasingly compelled to provide Miranda
warnings immediately upon arrest−even though it is clear that the warnings are required
when the suspect is subjected to interrogation, not custody. See Innis, 446 U.S. at 299-300.
Here, the defendant freely engaged in conversation with Officer Prather immediately after his
arrest, and volunteered information about the crime while in the squad car. Miranda does not
require that the police, in essence, gag the defendant after arrest because he may say
something incriminating, and neither should our interpretation of Innis reach such a
conclusion in this case. For the foregoing reasons, I respectfully dissent.
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