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12 October 2000

No. 3--99--0905

IN THE

APPELLATE COURT OF ILLINOIS

THIRD DISTRICT

A.D., 2000

FACTS

Defendant was arrested and charged with armed violence (720ILCS 5/33A--2 (West 1994)) and possession with intent to deliver acontrolled substance(720 ILCS 570/401(c)(2) (West 1994)). Allegingthat the police failed to comply with Miranda v. Arizona,384 U.S.436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966), and that a statementhe had given to police was involuntary, defendant filed a motion tosuppress that statement.

At the hearing on the motion to suppress, members of theKankakee Area Metropolitan Enforcement Group (KAMEG) testified thatthey executed a search warrant at an apartment leased to MonicaMyert. Defendant, having arrived in Kankakee a few days earlier tovisit Luther Hill, had slept at Myert's apartment following asocial gathering the night before. When the KAMEG team entered theapartment, they found Hill asleep on a couch and defendant asleepon the floor of the living room. Defendant's girlfriend, SherriCaffey, was also found sleeping in the living room. Myert's cousinand the cousin's baby were in a bedroom. The officers handcuffeddefendant and Hill, "probably" handcuffed the two women, and seizeda gun and a container which had been lying on a coffee tablesituated between Hill and defendant. The container held severalbaggies of what was later identified as crack cocaine.

According to Officer Don Barber, defendant signed a rightswaiver form and agreed to talk. Initially, defendant deniedknowing anything about the gun or the drugs found on the table. However, after Barber told defendant that the women would bearrested and the baby turned over to the Department of Children andFamily Services (DCFS) unless someone admitted ownership of thecontraband, defendant said that he knew nothing about the gun butthat the drugs belonged to Hill.

Officer John McClellan testified that he and Sergeant RobertBodemer then took defendant into a different room because OfficerBarber "wasn't having much luck getting anything talking toanybody." McClellan left the room and, when he returned, informeddefendant that Hill had incriminated himself and defendant. Defendant thereupon admitted to having purchased the drugs but hecontinued to deny knowledge of the gun. Defendant provided awritten statement to this effect.

The officers denied having coerced, threatened or madepromises to defendant. They all testified that he did not invokehis right to remain silent. McClellan admitted that his initialinclination was to arrest everyone and take them to jail and thatthe baby would then have to be turned over to DCFS. However,McClellan did not recall threatening defendant with thispossibility. Barber admitted he told defendant that the womenwould be arrested and the baby turned over to DCFS unless someoneadmitted ownership of the contraband, but he denied having saidthat to threaten defendant. Bodemer recalled discussing with theother officers whether or not to arrest the women, but did not knowif that discussion took place in defendant's presence. Bodemer didnot hear anyone say anything about DCFS. Officer Samuel Millerheard DCFS mentioned.

Caffey, Hill and defendant all testified that the policethreatened that everyone would be arrested and taken to jail, andthe baby turned over to DCFS, unless defendant and Hill gaveincriminating statements.

The trial court denied defendant's motion to suppress, findingthat "the affection [defendant] may have for some young lady doesnot relate to the point where he can say that because there wasthis DCFS threat and the arrest of these women [that it] sooverwhelmed his mind to the point he was coerced into makingstatements."

At defendant's bench trial, Officer Alan Swinford testifiedthat the container in which the drugs were found was opaque andonly after opening the bottle did he see the bags of what appearedto be cocaine. The container was not checked for fingerprints andany prints on the gun were likely destroyed when Swinford seized itupon entering the apartment.

At trial, Barber testified that when he began to discuss thedrugs with defendant, defendant said he did not want to sayanything more to Barber. Barber testified that he told OfficerMcClellan that defendant did not want to talk.

McClellan testified that he took defendant into another room,told defendant that Hill had incriminated them both and askeddefendant to give a written statement. McClellan admitted thatBarber "may have" told him that defendant did not want to talk.According to McClellan, though, Barber "never said that [defendant]wanted to invoke any of his rights or privileges with an attorneyor anything."

Caffey and defendant both testified at trial that when theywent to sleep the night before the arrest, they had not seen eitherthe gun or the container on the table.

Caffey testified that she and defendant were "going together"at the time of the arrest. At the time of trial, Caffey was livingwith defendant and the couple's two children. Caffey testifiedthat defendant was still asleep on the floor when she was shakenawake by the police the following morning. According to Caffey,the police handcuffed her and threatened to take the adults to jailand send the baby to DCFS because the defendant was notcooperating. Defendant said he would do anything the police wantedso no one else would have to go to jail.

Defendant testified that, after he refused to provide astatement, the police asked which of the women was defendant'sgirlfriend. The police then placed Caffey in handcuffs and tolddefendant she was going to jail if he did not cooperate. Accordingto defendant, Officer Barber then invented a statement in whichdefendant admitted to having purchased the drugs. Defendant agreedto sign the statement.

When the State sought to introduce defendant's writtenstatement, defense counsel renewed his objection to its admission. However, the trial court admitted the statement.

ANALYSIS

Initially, we note that defendant failed to file a post-trialmotion setting forth his contentions of error. See 725 ILCS 5/116--1 (West 1994). When a defendant fails to comply with thestatutory duty to file a post-trial motion, an appellate court'sreview is limited to constitutional issues which have properly beenraised at trial and which can be raised later in a post-convictionhearing petition, sufficiency of the evidence, and plain error. People v.Hollingshead, 210 Ill. App. 3d 750, 759-60, 569 N.E.2d216, 222 (1991). Defendant requests that we review any waivedissues as plain error or because defense counsel's failure to filea post-trial motion constituted ineffective assistance of counsel.

Supreme Court Rule 615(a) provides that plain errors ordefects affecting substantial rights may be noticed although theywere not brought to the attention of the trial court. 73 Ill. 2dR. 615(a). Courts may review an issue as plain error where thealleged error was of such magnitude that defendant was denied afair trial or the evidence presented at trial was closely balanced. People v. Carlson, 79 Ill. 2d 564, 576, 404 N.E.2d 233, 238 (1980). The State contends the evidence was not closely balancedbecause defendant confessed to having purchased the drugs. Becauseit is precisely that confession which defendant argues should havebeen suppressed, however, the State's argument is not persuasive.

The only evidence linking defendant to the drugs (other thandefendant's confession) was his proximity to the container holdingthe drugs when the police arrived. This evidence was notsufficient to establish constructive possession where defendant wasbut one of four adult guests at the residence in which thecontraband was found and he was not engaged in any activitysuggestive of control over the contraband. See People v.Heerwagen, 30 Ill. App. 3d 144, 145, 332 N.E.2d 136, 138(1975)(constructive possession not proved where contraband wasfound on premises in plain view but there was no evidence thatdefendant owned, rented or resided at premises); cf. People v.Rouser, 199 Ill. App. 3d 1062, 1065, 557 N.E.2d 928, 930 (1990)(constructive possession established where activities in lockedbathroom were such that reasonable person could conclude defendantswere disposing of illegal contraband). Accordingly, we willconsider defendant's contentions on appeal and need not determinewhether defense counsel's failure to file a post-trial motionconstituted ineffective assistance.

I. Admission of Defendant's Confession

Defendant asserts that his statement was involuntary andtherefore should have been suppressed. The ultimate question ofwhether or not a confession was voluntary is reviewed de novo;however, a trial court's factual findings relative to thevoluntariness of a confession should not be reversed unlesscontrary to the manifest weight of the evidence. In re G.O., 191Ill.2d 37, 50, 727 N.E.2d 1003, 1010 (2000).

In determining whether defendant's confession was voluntary,we must consider the totality of the circumstances. See In re G.O,191 Ill. 2d at 50, 727 N.E.2d at 1012. Factors to consider includethe defendant's age, intelligence, background, experience, mentalcapacity, education, and physical condition at the time ofquestioning; the legality and duration of the detention; theduration of the questioning; and any physical or mental abuse bypolice, including the existence of threats or promises. In re G.O,191 Ill. 2d at 50, 727 N.E.2d at 1012. No single factor isdispositive, In re G.O, 191 Ill. 2d at 50, 727 N.E.2d at 1012. Theultimate test of voluntariness is whether the defendant made thestatement freely, voluntarily, and without compulsion or inducementof any sort, or whether the defendant's will was overcome. In reG.O, 191 Ill. 2d at 50, 727 N.E.2d at 1012.

Defendant argues that his written statement should have beensuppressed because of the threats to jail the women, includingdefendant's girlfriend, and to send Myert's cousin's baby to DCFS. He notes that Barber admitted that he told defendant that the womenwould be arrested and the baby turned over to DCFS unless someoneadmitted ownership of the contraband. In addition, the trialcourt found that there was in fact a DCFS threat and a threat toarrest the women. Therefore, defendant argues, the trial courterred when it found his confession to have been voluntarily made.

Defendant further argues that his statement should have beensuppressed because the evidence at trial established that thepolice failed to scrupulously honor defendant's request to remainsilent. At trial, Barber testified that defendant signed a rightswaiver, provided some general background information, and then saidhe did not want to say any more to Barber. Thereafter, McClellantook defendant into another room and continued to interrogate him. McClellan acknowledged that Officer Barber "may have" told him thatdefendant did not want to talk.

Ordinarily, a reviewing court may consider evidence at trialto determine whether it was proper to deny a motion to suppress. People v. Reese, 92 Ill. App. 3d 1112, 1113-14, 416 N.E.2d 692, 693(1981). The State, however, points to the decision of our supremecourt in People v. Brooks, 187 Ill. 2d 91, 718 N.E.2d 88 (1999) inarguing that we should not consider the officers' trial testimony. In Brooks, the defendant relied on trial testimony which had notbeen introduced at the hearing on the motion to suppress in seekingreversal of a trial court's ruling on that motion. The IllinoisSupreme Court refused to consider this testimony, opining that,when the new trial evidence was introduced, Brooks should haveasked the court to reconsider its ruling on the motion to suppressas that decision remained subject to change until final judgment.Brooks, 187 Ill. 2d at 128 , 718 N.E.2d at 109. Having failed to doso, Brooks waived his right to argue the trial testimony on appeal. Brooks, 187 Ill. 2d at 128, 718 N.E.2d at 109.

The decision in Brooks does not support the State's position.The instant defendant, unlike the defendant in Brooks, did seekreconsideration of the court's ruling on the motion to suppressruling by renewing his objection to admission of the statement. Weconsequently will not ignore the trial testimony on this issue.

If, after warnings have been given, a defendant indicates thathe wishes to discontinue questioning and asserts his right toremain silent, the questioning must cease. Miranda, 384 U.S. 436,474, 86 S.Ct. 1602, __, 16 L.Ed.2d 694, 726. Notwithstanding, theState contends that defendant did not clearly invoke his right toremain silent. See People v. Edwards, 301 Ill. App.3d 966, 704N.E.2d 982 (1998)(demand to end interview must be specific). TheState argues that defendant did not invoke his right to remainsilent when he told Officer Barber that he did not want to sayanything more. Instead, the State suggests, defendant was simplyindicating that he did not wish to speak to Officer Barberpersonally. We find the State's argument unpersuasive.

Defendant specifically told Officer Barber that he did notwant to say any more. We find that this expression was sufficientlyspecific to effectively and unequivocally communicate defendant'sdesire to assert his right to remain silent. Consequently, thepolice were obligated to cease further interrogation.

Alternatively, the State argues that the police did notcontinue interrogating defendant, but rather that he voluntarilytalked to McClellan. The State insists that, after defendantindicated his desire to remain silent, McClellan made no statementto elicit an incriminating response. McClellan's own testimony,however, is to the contrary. McClellan testified that, afterdefendant told Barber that he did not want to say any more,McClellan took defendant into a back bedroom and spoke with him.When asked by defense counsel what seemed to make defendant want togive a statement, McClellan answered:

"I told him that the other individual. . . Luther Hillhad said the two of them were involved and gone up toChicago, bought the drugs, came back and they wereselling it, and this would be his time to help himself dowhat he could since Mr. Hill was saying this, maybe hewas lying, that type of thing."

We find the questioning by Officer McClellan after defendantsaid he did not want to talk any more violated his right to remainsilent. Furthermore, this violation coupled with the threats tojail defendant's companions and send the baby to DCFS, rendereddefendant's confession involuntary. Consequently, we hold that thetrial court erred in admitting defendant's confession intoevidence.

The admission of an involuntary confession is unlikely to beharmless given the heavy weight typically accorded confessions bythe trier of fact. Colorado v. Connelly, 479 U.S. 157, 182, 107S.Ct. 515, 93 L.Ed.2d 473, 494 (1986) (Brennan, J., dissenting). Because the evidence was closely balanced, we find that theerroneous admission of defendant's confession was not harmless. Wetherefore reverse defendant's convictions and remand for a newtrial.

II. Sufficiency of the Evidence

Defendant contends that his conviction for armed violenceshould be reversed because the State failed to prove him guiltybeyond a reasonable doubt. Generally, a decision to remand a causefor a new trial alleviates the need to address other issues;however, the constitutional guarantee prohibiting double jeopardyrequires that we consider defendant's challenge to the sufficiencyof the evidence. People v. Brown, 309 Ill. App. 3d 599, 607, 723N.E.2d 362, 368 (1999).

For purposes of double jeopardy, all evidence submitted,including improperly admitted evidence, may be considered whendetermining the sufficiency of the evidence. People v. Olivera,164 Ill. 2d 382, 392, 647 N.E.2d 926, 932 (1995). In reviewing thesufficiency of the evidence, the standard of review is whether anyrational trier of fact could have found the essential elements ofthe offense to have been proven beyond a reasonable doubt. Peoplev. Collins, 106 Ill. 2d 237, 261, 478 N.E.2d 267, 277 (1985).

A person commits armed violence when, while armed with adangerous weapon, he commits any felony defined by Illinois law. 720 ILCS 5/33A--2 (West 1994). A person is considered armed witha dangerous weapon for purposes of the armed violence statute whenhe carries on or about his person or is otherwise armed with aweapon. 720 ILCS 5/33A--1(a) (West 1994). Defendant concedes thathis written statement was sufficient to establish that he wasguilty of possession of a controlled substance, a felony defined byIllinois law.

Defendant contends, however, that the evidence wasinsufficient to support a finding that he was "otherwise armed"while committing that felony. A person is "otherwise armed" if heor she has "immediate access to or timely control over the requiredweapon." People v. Harre, 155 Ill. 2d 392, 396, 614 N.E.2d 1235,1237 (1993). The testimony established that defendant was sleepingon the floor less than an arm's length away from the coffee tableon which the gun was located in plain view. A rational fact-findercould have concluded beyond a reasonable doubt that defendant hadimmediate access to the gun. Consequently, we find the evidence wassufficient to support defendant's conviction for armed violence.

III. One-Act-One-Crime

Finally, defendant contends that the trial court erred insentencing him for both armed violence based on possession of acontrolled substance and for possession with intent to deliver acontrolled substance. Although our decision to remand the causefor a new trial renders the issue moot in this appeal, we addressdefendant's contention because of the possibility that the issuecould arise again on retrial.

The court in People v. Garcia, 296 Ill. App. 3d 769, 695N.E.2d 1292 (1998), held convictions for both armed violence basedon unlawful possession of a controlled substance and unlawfulpossession with intent to deliver a controlled substance violatesone-act-one-crime principles where all of the contraband was seizedfrom a single area and nothing suggested the defendant hadsegregated any of the cocaine for his personal use. Here, all ofthe contraband was found in a single container on the coffee table. Consequently, we find that defendant could not properly besentenced for both armed violence and unlawful possession withintent to deliver under the facts of this case.

CONCLUSION For the foregoing reasons, the judgment of the circuit courtof Kankakee County is reversed and this matter is remanded for anew trial.

HOLDRIDGE and LYTTON, JJ., concurred.