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1-01-0073

PRESIDING JUSTICE COHEN delivered the opinion of the court:

Juvenile defendant Marcus Jenkins was tried as an adult before a jury and convicted of firstdegree murder (720 ILCS 5/9-1(a)(1) (West 1998)) in the gang-related shooting death of 79- year-oldEdna Dela Rosa. The trial court sentenced Jenkins to a term of 50 years' imprisonment. Jenkinsappeals both his conviction and sentence, arguing that: (1) inculpatory statements to police shouldhave been suppressed as involuntary; (2) the prosecution made improper and prejudicial commentsduring closing argument; and (3) his 50-year term of imprisonment is excessive and must be reduced. We affirm.⁽¹⁾

ANALYSIS

I. Motion to Suppress

Jenkins first argues that his initial statement to police should have been suppressed asinvoluntary because: (1) it was made shortly afer his 3 a.m. arrest; (2) he did not sign a waiver ofrights form; and (3) "a youth officer, parent, attorney or family member was not present when he firstconfessed." Jenkins does not argue that his subsequent statements to police were involuntary in andof themselves; rather, Jenkins argues that because his initial statement was involuntary, hissubsequent statements to police should be suppressed as "fruit of a poisonous tree."

"As a general rule, this court will reverse a trial court's denial of a motion to suppressstatements only if that ruling is manifestly erroneous. [Citation.] In this case, however, de novoreview is appropriate, as neither the facts nor the credibility of the witnesses is at issue." People v.Nielson, 187 Ill. 2d 271, 286 (1999).

The "fruit of the poisonous tree" doctrine applies only where evidence is obtained in violationof a defendant's constitutional rights. People v. Winsett, 153 Ill. 2d 335, 353 (1992). Evidencediscovered by virtue of a statement obtained in violation of a constitutional right must be suppressed. Winsett, 153 Ill. 2d at 353. A statement is obtained unconstitutionally where it is involuntary. People v. Gonzalez, 313 Ill. App. 3d 607, 615 (2000). Thus, in order to suppress Jenkins' subsequentstatements, we must find not only that his initial statement to police was involuntary, but thatJenkins' subsequent statements were obtained "by virtue" of his initial statement. Gonzalez, 313 Ill.App. 3d at 615.

The record reflects that during a hearing on Jenkins' motion to suppress, the defense wasgranted leave of court to present its witnesses prior to the prosecution's. The defense first presentedseveral of Jenkins' fellow gang members, all of whom offered substantially similar testimony to theeffect that Jenkins had been drinking alcohol and smoking marijuana in their company untilintoxicated the night before his 3 a.m. arrest on August 27, 2000.

Jenkins' cousin, Faye Jenkins, then testified that she received a telephone call from policearound 3 a.m. on August 27, 2000, asking her to reach Jenkins' mother, Gloria Jenkins, who had notelephone. Faye stated that she then went to Gloria's apartment (in the same building) to informGloria of the call. Gloria accompanied Faye to Faye's apartment to return the call, did so, then leftthe apartment. Faye concluded that Gloria was intoxicated at the time based on Gloria's glazed eyes,slurred words and the smell of liquor on Gloria's breath.

Chicago police officer Timothy O'Brien then testified for the State. Officer O'Brien testifiedthat when he arrested Jenkins and led him to a squad car around 3 a.m. on the morning of August27, 2000, Officer O'Brien detected no odor of alcohol about Jenkins' person, nor did Jenkins' eyesappear bloodshot.

Believing Jenkins to be a juvenile, Officer O'Brien proceeded according to protocol andattempted to contact Jenkins' parents and inform them of their son's arrest. After knocking on thedoor to Jenkins' apartment and receiving no response, Officer O'Brien went to Faye's apartment. Inthe hall outside her apartment, Officer O'Brien informed Faye that Jenkins was being taken to AreaFour police headquarters for questioning in a murder investigation. Officer O'Brien provided Fayewith his name, star number and the headquarters telephone number and asked Faye to contactJenkins' parents.

Officer O'Brien then returned to the squad car and informed Jenkins that he had just spokento Faye. Officer O'Brien testified that it was at this point that Jenkins stated without being asked that"he knew why we were looking for him, he knew why we were there and that he knew the locationof a weapon that we were looking for."⁽²⁾ Jenkins then offered to lead Officer O'Brien and his partner,Officer Neil Schulz, to the weapon. When the officers allowed Jenkins to exit the squad car, Jenkinsled them into an apartment building at 1170 West Erie, up to the ninth floor, into a utilitycloset/incinerator room and indicated that the gun could be found on top of an electrical junction boxabove the officers' line of sight. Officer O'Brien then reached up and ran his hand over the top ofthe junction box, causing a chrome-plated .380 semi-automatic pistol to fall to the floor. The pistolwas later identified through ballistics analysis as the murder weapon.

Jenkins was then taken to Area Four police headquarters, transferred to investigatingDetectives Alphonso Bautista and Paul Lopez and seated in a roll-call room. Around 4 a.m., an hourafter Jenkins' arrest, Detectives Bautista and Lopez prepared to interview Jenkins. The detectivesfirst advised Jenkins of his Miranda rights and informed Jenkins that he could be charged and triedas an adult despite his juvenile status. They then inquired as to the name and location of Jenkins'legal guardian. Jenkins responded that he understood each of his legal rights and told the detectivesthat his mother, Gloria Jenkins, was his legal guardian, although he did not know how she might bereached.

Detective Bautista testified that at this point, he and Officer O'Brien were about to leave theroll-call room when Jenkins "said something to the effect of I know why I was picked up, I'll tell youwhat happened, something to those words, and proceeded to [relate the details of the shooting]." Essentially, Jenkins admitted to shooting repeatedly at two members of a rival gang. NeitherDetective Bautista nor Officer O'Brien asked Jenkins any direct questions once Jenkins began tospeak about the shooting. Detective Bautista observed that Jenkins appeared saddened while relatingthese events, but was alert and provided detailed descriptions.

Following argument by counsel, the trial court ruled:

"I find that the defendant was not intoxicated. I find that the evidencesupports the State's position. And I so find that he was coherent and was notintoxicated at the time of the giving of the statement.

I also find that initial contact with the defendant was not that of aninterrogation, and I further find that statement was voluntarily made and that thepolice complied with the notification of the mother * * * and therefore the motion tosuppress the statements is respectfully denied."

We first note that Jenkins offers no authority to support his argument that Jenkins' failure tosign a waiver of rights form rendered his statement involuntary. This argument is thus waived. People v. Ford, 301 Ill. App. 3d 56, 59 (1998); 155 Ill. 2d R. 341(e)(7).

Our supreme court has dictated that in order to determine whether Jenkins' initial statementto Detective Bautista and Officer O'Brien was voluntary, this court must look to the totality of thecircumstances. In re G.O., 191 Ill. 2d 37, 54 (2000). Factors to consider include Jenkins' "age,intelligence, background, experience, mental capacity, education, and physical condition at the timeof questioning; the legality and duration of the detention; the duration of the questioning; and anyphysical or mental abuse by police, including the existence of threats or promises." G.O., 191 Ill.2d at 54. No single factor is dispositive. G.O., 191 Ill. 2d at 54. Whether Jenkins was able to conferwith a "concerned adult," either before or during interrogation, may also be relevant to determiningwhether his confession was voluntary. G.O., 191 Ill. 2d at 55. Predicated on consideration of thesefactors, the "test of voluntariness is whether [Jenkins] 'made the statement freely, voluntarily, andwithout compulsion or inducement of any sort, or whether [Jenkins'] will was overcome at the timehe * * * confessed.' " G.O., 191 Ill. 2d at 54, quoting People v. Gilliam, 172 Ill. 2d 484, 500 (1996).

An examination of the record reveals that Jenkins was 16 years of age at the time of hisarrest. The record also reflects that Jenkins had prior contact and experience with the justice systemin the form of a previous felony arrest. Evidence adduced at the suppression hearing indicates thatJenkins was sober, alert and in no physical distress when he spoke with the police. Jenkins does notdispute the legality of his arrest, does not allege that the police made any threats to compel orpromises in return for his statement and does not claim to have been the victim of physical or mentalabuse by police.

The duration and nature of the questioning also weigh in favor of a finding of voluntariness. Here, there was no questioning directed to the subject of Jenkins' confession. The record reflects thatafter advising Jenkins of his legal rights, Detective Bautista and Officer O'Brien asked Jenkins toidentify his legal guardian and how she might be found. They also informed Jenkins that he couldbe charged and tried as an adult despite his juvenile status. Jenkins responded that he understoodeach of his legal rights and told the detectives that his mother, Gloria Jenkins, was his legal guardian,although he did not know how she might be reached.

Detective Bautista testified that at this point, he and Officer O'Brien asked Jenkins no furtherquestions and were about to leave the roll-call room when Jenkins volunteered that he was aware ofwhy he was picked up and proceeded to relate the details of the shooting. Jenkins then admitted toshooting repeatedly at two members of an opposing gang. Detective Bautista observed that Jenkinsappeared saddened but alert, despite the early hour, and provided a detailed description of thecircumstances surrounding the shooting.

In light of the one-sided balance of factors in this analysis, and because no single factor isdispositive (G.O., 191 Ill. 2d at 54), the absence of Jenkins' mother or another "concerned adult" atthe time Jenkins confessed is not alone sufficient to render Jenkins' confession involuntary. This isespecially true where, as here, the police did not actively prevent Jenkins from contacting such anadult or vice versa. G.O., 191 Ill. 2d at 55.

On the record presented, we conclude based on the totality of the circumstances that Jenkins'statement "was the result of his own decision and not the result of compulsion or his will beingoverborne." G.O., 191 Ill. 2d at 57. Jenkins' initial statement was therefore voluntary, and the trialcourt did not err in denying Jenkins' motion to suppress. People v. Nielson, 187 Ill. 2d 271, 286(1999). Because we find that Jenkins' initial statement to police was voluntary, we need not considerwhether his subsequent statements were obtained "by virtue" of his initial statement. The "fruit ofthe poisonous tree" doctrine is inapplicable under the facts of this case. People v. Winsett, 153 Ill.2d 335, 353 (1992); People v. Gonzalez, 313 Ill. App. 3d 607, 615 (2000).

II. Improper Remarks

Jenkins next contends that he was denied a fair trial by improper prosecutorial comments. Jenkins first argues that "[d]uring closing remarks, the prosecution asked the jury to consider theclaim that Jenkins was 'smoking blunts.' While Jenkins admitted smoking pot and drinking alcohol,there was no evidence that he was smoking blunts." Jenkins has waived any objection to thiscomment where he neither objected at trial nor raised the issue in his posttrial motion. People v.Enoch, 122 Ill. 2d 176, 186 (1988). Waiver aside, Jenkins' argument is without merit: "blunt" is aslang term for a hollowed-out cigar filled with marijuana. People v. Brownlee, 186 Ill. 2d 501, 507(1999). No evidence was presented at trial with respect to the nature of Jenkins' marijuana use. Thus, the prosecutor's characterization of the specific form of that marijuana as a "blunt" exceedsthe scope of the evidence presented at trial. However, because Jenkins would not have prevailed inits absence, this misrepresentation does not rise to the level of reversible error. People v. Byron, 164Ill. 2d 279, 295 (1995); People v. Chavez, 327 Ill. App. 3d 18, 28 (2001).

Jenkins next argues that the State prejudiced Jenkins during rebuttal argument when theprosecutor: (1) accused defense counsel of trying to distract the jury by creating a "smokescreen;" (2) told the jury that Jenkins was pursuing a "defense of desperation"; and (3) told the jury thatJenkins was relying on the "hope that the jury would not follow the law."

Jenkins' third argument--that the prosecution told the jury that Jenkins was relying on the"hope that the jury would not follow the law"--is waived for failure to cite any supporting authority. People v. Ford, 301 Ill. App. 3d 56, 59 (1998); 155 Ill. 2d R. 341(e)(7).

As to Jenkins' remaining claims of error, we first note that it is well settled that prosecutorialcomments either disparaging the integrity of defense counsel (People v. Thompson, 313 Ill. App. 3d510, 514 (2000)) or accusing defense counsel of fabricating a defense (People v. Hamilton, 328 Ill.App. 3d 195, 204 (2002)) are improper. However, it is also axiomatic that prosecutors are:

"afforded wide latitude in closing argument and may argue facts as well asreasonable inferences drawn from the evidence. People v. Williams, 192 Ill. 2d 548,573, 736 N.E.2d 1001, 1015 (2000). In reviewing a challenge to remarks made bya prosecutor during closing argument, the comments must be considered in thecontext of the parties' closing arguments as a whole. Moreover, the reviewing courtmust indulge in every reasonable presumption that the trial court properly exercisedits discretion in determining the propriety of the remarks. People v. Simms, 192 Ill.2d 348, 397, 736 N.E.2d 1092, 1125 (2000)." People v. Beler, 327 Ill. App. 3d 829,835 (2002).

"[T]he verdict must not be disturbed unless it can be said that the remarks resulted in substantialprejudice to the accused, such that absent those remarks the verdict would have been different." Byron, 164 Ill. 2d at 295.

Jenkins cites to People v. Kidd, 147 Ill. 2d 510, 544 (1992), and People v. Emerson, 97 Ill.2d 487, 497 (1983), for the proposition that the prosecution's reference to defense counsel's closingargument as a "smoke screen" constitutes reversible error. In Beler, however, the court addressedthese cases and held that where a prosecutor described defense counsel's attempt to focus on minorinconsistencies in the case as a "smoke screen":

"The prosecutor's remark did not disparage the integrity of the defense as did theextensive remarks at issue in * * * People v. Kidd, 147 Ill. 2d 510, 544, 591 N.E.2d431, 447 (1992) (in which 'the assistant State's Attorney did not make just onefleeting, inadvertent remark regarding this "smoke screen" metaphor. Rather, hecommented eight times that defense counsel was "raising a smoke screen," or "fillingthis courtroom with smoke today," or "hoping that the smoke he raises in this roomtoday will strangle the truth like it strangled the life of the ten children" ' (emphasisin original) who died in a fire set by defendant), and People v. Emerson, 97 Ill. 2d487, 497, 455 N.E.2d 41, 45 (1983) (in which the prosecutor described the smokescreen as ' "composed of lies and misrepresentations and innuendoes" ' and said that'all defense attorneys try to "dirty up the victim" ')." Beler, 327 Ill. App. 3d at 836.

The Beler court held that the prosecutor's remark was "properly made in response to defensecounsel's closing argument" (Beler, 327 Ill. App. 3d at 836), and that no substantial prejudice todefendant resulted. Byron, 164 Ill. 2d at 295. See People v. Hudson, 157 Ill. 2d 401, 441 (1993)(holding that the State may respond to comments by defense counsel that clearly invite a response);People v. Smith, 154 Ill. App. 3d 837, 849 (1987) (finding prosecutor's comment that defensecounsel had attempted to set up a "smoke screen" to be a proper response to defense counsel's closingargument).

The facts of the present case align squarely with those presented in Beler. In commentingon defense counsel's tactic of focusing on minor inconsistencies in the signatures on Jenkins'subsequent handwritten statement, the prosecutor stated: "It's a smoke screen, trying to get yourattention off what's really going on." In response to defense counsel's objection, the trial courtinstructed the jury to "consider the evidence during the trial and not the words that the attorneys useto describe [it]." Taken in context, we find the prosecutor's comment to be an invited response todefense counsel's closing argument. Beler, 327 Ill. App. 3d at 836. As such, and in light of the trialcourt's corrective instruction to the jury, no substantial prejudice to defendant resulted. People v.Starks, 287 Ill. App. 3d 1035, 1042 (1997); People v. Suane, 164 Ill. App. 3d 997, 1004-05 (1987).

Similarly, we cannot say that Jenkins was substantially prejudiced by the prosecutor's singlecomment that defense counsel's attack on the manner in which Jenkins' statement was recorded wasa "defense of desperation." See People v. Hamilton, 328 Ill. App. 3d 195, 204 (2002) (expressingdisapproval of use of phrase "defense of desperation" but finding no substantial prejudice todefendant).

III. Sentencing

Finally, Jenkins argues that his 50-year sentence is excessive and must be reduced due to: (1)Jenkins' relative youth; and (2) the accidental nature of the shooting. However, we need not reachthe substance of Jenkins' argument. Section 5-8-1(c) of the Unified Code of Corrections (730 ILCS5/5-8-1(c) (West 1998)) requires that "[a] defendant's challenge to the correctness of a sentence orto any aspect of the sentencing hearing shall be made by a written motion filed within 30 daysfollowing the imposition of sentence." Although defense counsel made an oral motion forreconsideration of Jenkins' sentence, stating "I will supplement that with a written motion, hopefullylater today," no such written motion appears in the record. Jenkins' sentencing challenge is thereforewaived. People v. Reed, 177 Ill. 2d 389, 395 (1997).

CONCLUSION

For the foregoing reasons, the judgment of the trial court is affirmed.

Affirmed.

McNULTY and COUSINS, JJ., concur.

1. An extensive recitation of the facts leading to the shooting incident in this case isunnecessary in order to resolve the issues raised on review. Relevant facts will be discussed asneeded.

2. Jenkins does not argue that this statement should have been suppressed as involuntary.