People v. Dorsey

242 N.E.3d 307

2023 IL App (1st) 200304

The PEOPLE of the State of Illinois, Plaintiff-Appellee,

v.Jerrell DORSEY, Defendant-Appellant.

No. 1-20-0304

Appellate Court of Illinois, First District, SIXTH DIVISION.

Filed September 29, 2023

Appeal from the Circuit Court of Cook County. No. 12 CR 13944, The Honorable Ursula Walowski, Judge, Presiding.

Jodi L. Garvey and Patrick W. Blegen, of Blegen & Garvey, of Chicago, for appellant.

Kimberly M. Foxx, State’s Attorney, of Chicago (Enrique Abraham, Douglas P. Harvath, and David H. Iskowich, Assistant State’s Attorneys, of counsel), for the People.

OPINION

PRESIDING JUSTICE ODEN JOHNSON delivered the judgment of the court, with opinion.

¶ 1 Defendant, Jerrell Dorsey, was convicted after a jury trial of first degree murder, aggravated battery with a firearm, and aggravated discharge of a firearm in connection with the death of sevenyear-old Heaven Sutton (Heaven) and the injury of Marquice Monroe (Marquice) on June 27, 2012, in Chicago. The charges stemmed from a shooting on North Luna Street that occurred immediately after two men emerged from a gangway onto the street. Defendant stated in a videotaped interview that he emerged from the gangway with Lance Sims, who he identified as the shooter,¹ and that he was "watching [Sims’s] back." Defendant acknowledged that Sims had been previously shot by rival gang members.

¶ 2 Defendant received a total sentence of 60 years that included 50 years for the murder of Heaven and 10 years for the aggravated battery of Monroe. In addition, defendant received a concurrent four-year term for aggravated discharge of a firearm.

¶ 3 On this appeal, defendant claims (1) that his warrantless arrest, based on an investigative alert, violated the warrant clauses of both the United States and Illinois Constitutions (U.S. Const., amend. IV; Ill. Const. 1970, art. I, § 6) and that, although his trial counsel filed a suppression motion, counsel was ineffective for failing to include this particular ground in the motion; (2) that the trial court erred by denying the suppression motion that counsel did file, where defendant had asserted his right to counsel while in police custody, but the trial court found that defendant reinitiated a conversation with the police and waived his Miranda rights (see Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966)); (3) that the trial court abused its discretion by admitting the portion of defendant’s confession stating his gang affiliation and by admitting testimony confirming that affiliation and the fact that the location of the shooting was in the territory of a rival gang, where the gang evidence was more prejudicial than probative; and (4) that the evidence against defendant was so unsatisfactory as to justify a reasonable doubt of his guilt, where the eyewitnesses denied or recanted their prior identifications of him, where witnesses alleged police misconduct, where defendant was denied his right to counsel, where no forensic evidence linked him to the scene or to the crime, and where there was no identifiable motive for the crime.

¶ 4 In the above claims, defendant seeks to suppress his postarrest interview on two separate grounds: one raised by his trial counsel before trial and one that was not. Although defendant challenges his arrest due to the investigative alert, he does not dispute the underlying probable cause for the alert.

¶ 5 For the following reasons, we reverse and remand for a new trial.

¶ 6 BACKGROUND

¶ 7 I. Pretrial Suppression Hearing

¶ 8 At the suppression hearing, Detective Gregory Swiderek testified that defendant was arrested at approximately 11 p.m. on June 29, 2012, and transported back to Area North of the Chicago Police Department. The postarrest interviews of defendant were videotaped and played during the hearing. At 11:28 p.m. on June 29, Detective Swiderek read defendant his Miranda rights, defendant immediately invoked his right to counsel, and questioning ceased.

¶ 9 On the following day, which was June 30, at 6:30 a.m., Detectives Swiderek and Marco Garcia brought defendant down to the lockup where detainees are allowed to make phone calls. Detective Swiderek testified that, "[t]ypically *** the lockup keeper will ask, do you want to make a phone call, and they’ll make a phone call." An hour later, Detectives Swiderek and Garcia brought defendant back up. Detective Swiderek did not ask defendant if he had spoken with his attorney.

¶ 10 At 4 p.m. on June 30, defendant appeared in a lineup viewed by Ashake Banks, Malik Ellis, and Ieshia Richardson, who were at the scene. None of them identified defendant as a shooter. At 5:16 p.m., defendant asked Detective John Hillman whether his attorney had arrived but did not specify the attorney’s name. At 7:20 p.m., defendant knocked on the door of the interview room where he was being held, and Detective Michele Wood responded.

¶ 11 After defendant knocked, Detective Wood entered the interview room and had a short conversation with defendant, which is the basis of one of the claims on appeal. The video established that, after defendant knocked, Detective Wood and defendant had the following exchange:

"WOOD: Go over there. Take your hands out of your pants. What’s up?

DEFENDANT: So I got picked in the lineup?

WOOD: You said you don’t want to talk to us, so I can’t talk to you unless I read you your rights and you want to talk to me.

DEFENDANT: What you mean ‘read me my rights?’

WOOD: You have the right to remain silent; anything you say can and will be used against you; you have a right to an attorney; if you can’t afford an attorney, one will be provided for you. [Sigh.] I’m so tired, I can’t even think right now.

Do you want to talk to me? I’ll read you your rights. I’ll get it from a book and I’ll talk to you; but if not, I can’t talk to you because you said you don’t want to talk to me.

DEFENDANT: Do I get a phone call?

WOOD: You’ll get a phone call.

DEFENDANT: When?

WOOD: Soon as we’re done.

DEFENDANT: Done with what?

WOOD: Who—who do you want to call?

DEFENDANT: I want to call my lawyer.

WOOD: Ok, wait. Hold on one second. Do you want to talk to me? Do you want me to come back?

DEFENDANT: Yeah.

WOOD: Ok, give me two seconds. [Wood exits.]"

Detective Wood exited, returned, read Miranda warnings, and continued talking with defendant. Notably, defendant told Detective Wood that he was at a club near Lincoln Park when the shooting occurred. At 9:17 p.m., defendant appeared in a lineup viewed by Marquice, who did not identify defendant as a shooter.

¶ 12 At 9:34 p.m., Detectives Swiderek and Garcia entered the interview room and interviewed defendant until 10:20 p.m. Shortly after entering, the detectives told defendant that he had been identified, and one said "How many lineups have you been in today? Been in a few, right?" At the suppression hearing, the officers testified that they informed defendant that he had been identified because he had been identified from photo spreads by witnesses Antwan Monroe (Antwan) and Wesley Davis. Davis had identified defendant as one of the shooters, and Antwan said that he observed defendant running from the scene with a gun. Both stated that they had known defendant for a number of years.

¶ 13 At 10:01 p.m., as indicated by the time on the videotape, defendant stated: "I was with the shooter." Defendant said, "I thought we were just going through there," referring to the gangway. Defendant stated: "I guess [Sims] end up seeing somebody, so he let off."

¶ 14 At 10:25 p.m., defendant appeared in a lineup viewed by Antwan, who identi- fied defendant as the man who Antwan had observed running from the scene with a handgun after the shooting. Immediately after the lineup, Detective Swiderek and defendant reentered the interview room and defendant asked, "What? I just got pointed out again?" Detective Swiderek replied, "Yup." Defendant asked: "People have pointed me out?" Detective Swiderek replied: "How many have we had? I don’t even know."

¶ 15 At 10:27 p.m., with both detectives in the room, defendant stated that, when he and Sims were going through the gangway, defendant was "watching his back," which defendant explained meant that he was looking out for police or rival gang members as Sims proceeded in front of him. The police asked when it was that Sims asked defendant to watch his back, and defendant replied that it was simply "a known fact" because defendant was "with him." Defendant explained that it was just as if one of the two detectives was going through a gangway; whoever went first, the other one would watch his back. Defendant asked each of the detectives, in turn: "If you up front he gonna watch your back, right, [and] you gonna watch his back, right?" Defendant continued, saying "and if it’s vice versa, if, you know what I’m saying, he was in front of you, you’ll be watching his back, right?" Prior to going through the gangway, defendant was on Linder Avenue, and Sims "told [defendant] to slide through the cut with him," using the word "cut" to refer to the gangway.

¶ 16 Defendant did not know "at first" that Sims had a gun. The first time defendant saw the gun was when they had already gone through the gangway and Sims pulled it out. Defendant stated: "When I got through the cut, and he was in front of me, and I seen it, what else could I do?" Defendant did not see where Sims pulled the gun out from because it was dark. When the police asked, "how many of you were there out there," defendant replied that there were "two of us in front and one in the back." The one in the back was "[j]ust in the alley."

¶ 17 Defendant stated that, after they had gone through the gangway, Sims "was like there they go and s*** start letting off." When asked "what do you think he means by there they go," defendant replied, "that’s the Mafia." Defendant assumed that Sims had "seen 'em," meaning Mafias, who were rival gang members.² Defendant said "yeah," when the police asked if...