People v. Townsend

229 N.E.3d 255

2023 IL App (1st) 200911

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

v.Delondre TOWNSEND, Defendant-Appellant.

No. 1-20-0911

Appellate Court of Illinois, First District, SIXTH DIVISION.

Opinion Filed December 9, 2022

Modified Upon Grant of Petition for Rehearing June 30, 2023

Appeal from the Circuit Court of Cook County. No. 09 CR 02019, The Honorable Brian Flaherty, Judge, presiding.

James E. Chadd, Douglas R. Hoff, and Gavin J. Dow, of State Appellate Defender’s Office, of Chicago, for appellant.

Kimberly M. Foxx, State’s Attorney, of Chicago (Enrique Abraham, Joseph Alex ander, and Gerrard R. Burch Jr., Assistant State’s Attorneys, of counsel), for the People.

OPINION

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

¶ 1 Defendant Delondre Townsend was convicted after a jury trial of first degree murder, for the shooting death of Brandon Riley on December 29, 2008. The victim was driving a van at approximately 1:00 a.m. when his driver’s-side rear window was shot out, and the victim sustained a gunshot wound to his head from which he later died. Shortly after the offense, the 18-year-old defendant confessed to the shooting, and two eyewitnesses identified defendant as the shooter. However, 10 years later, at the 2019 trial, defendant denied being the shooter, and the two eyewitnesses recanted. No physical evidence connected defendant to the shooting, and he was not arrested at the scene of the offense. After considering factors in aggravation and mitigation, the trial court sentenced defendant to 45 years with the Illinois Department of Corrections (IDOC).

¶ 2 On this appeal, defendant claims, first, that the trial court erred by not suppressing his inculpatory statements made at the station house on January 1, 2009, because his detention was a de facto arrest and the police lacked probable cause at that time to arrest him. (The questioning that occurred at the station the day before, on New Year’s Eve, is not at issue on this appeal.) Second, defendant claims that we should vacate and remand the case for resentencing, because the trial court allegedly gave him a higher sentence based on the victim’s death, which is a factor already inherent in the offense. In the alternative, defendant asks this court to exercise the discretion granted to us under Illinois Supreme Court Rule 615(b) (eff. Jan. 1, 1967) to reduce his sentence from 45 years to the statutory minimum of 35 years.

¶ 3 In response to the first claim, the State argues that defendant’s station house interview on New Year’s Day was a voluntary and consensual encounter rather than an arrest. The State acknowledges in its brief to this court that it lacked probable cause to arrest defendant until he confessed.¹ Since the State does not argue that this was a brief investigative detention or that it had probable cause prior to the moment of confession, we must determine whether the questioning at the police station was a voluntary and consensual encounter; otherwise, the police lacked probable cause for an arrest, and the resulting confession should have been suppressed.

¶ 4 If we find that the confession should have been suppressed, the State argues, in the alternative, that any error in not suppressing it was harmless because the jury would not have acquitted defendant after hearing the two eyewitnesses’ pretrial statements, even though they both recanted. The State makes no argument that defendant forfeited this claim for our review, so the harmless error standard applies.

¶ 5 In response to the second claim, the State argues that defendant forfeited his sentencing claim by failing to object both at sentencing and in a postsentencing motion. Defendant acknowledges in his brief to this court that his sentencing claim is forfeited. However, defendant argues that his sentencing claim rises to the level of plain error because the evidence at his sentencing was closely balanced. Defendant observes that, at the time of the offense, he was only three months past his eighteenth birthday and was a high school senior, with a 3.2 grade point average, no gang involvement, no drug or alcohol abuse, and no juvenile adjudications. He had no convictions other than one misdemeanor in 2018, almost a decade after this offense. Defendant also argues that the trial court’s reliance on a factor inherent in the offense was a fundamental error that denied him a fair sentencing hearing. Defendant asks this court to exercise the discretion granted to it by Illinois Supreme Court Rule 615(b)(4) (eff. Jan. 1, 1967) to reduce his sentence to the 35-year statutory minimum. This court permitted supplemental briefing by the parties on the Rule 615(b) issue.

¶ 6 With respect to defendant’s first claim, we find that the trial court did err in denying defendant’s pretrial motion to suppress, and we cannot find this error harmless beyond a reasonable doubt. Thus, we vacate and remand for a new trial. Since we vacate defendant’s conviction on this basis, we do not reach the sentencing issue.

¶ 7 BACKGROUND

¶ 8 I. Pretrial Motion to Suppress

¶ 9 Since defendant argues on appeal that the trial court erred in denying his pretrial motion, we provide the circumstances of this motion and the ensuing pretrial proceeding in detail below.

¶ 10 A. Defendant’s Motion

¶ 11 On December 19, 2012, defendant filed the first motion to quash his arrest and suppress statements. The motion alleged that, initially, he was questioned at the Cook County Sheriff’s Department Markham district station² on December 31, 2008, by detectives and Assistant State’s Attorney (ASA) Maureen Delahanty and released the same day. The motion further alleged that on the next day, January 1, 2009, at 10:30 a.m., he was taken into custody at his home by a member of the Cook County Sheriff’s Police Department, without a warrant or probable cause to arrest. As we noted above, the State does not argue on appeal that the police had either a warrant or probable cause at that time.

¶ 12 Accordingly, the motion moved to suppress the statements made on January 1, 2009, but not the statements made on December 31, 2008.

¶ 13 Defendant filed a second motion to suppress, on July 10, 2015, which was later amended on August 17, 2015, and again amended on September 16, 2015. This second suppression motion alleged that the statements made on both December 31 and January 1 were involuntary.³ However, defendant’s appellate brief states: "That second suppression motion is not at issue on this appeal." Thus, we do not consider it.

¶ 14 B. Suppression Hearing

¶ 15 On September 22, 2014, the defense called in support of the first motion (1) Officer Frank D’Oronzo, with the Cook County sheriff’s police; (2) Lashanna Fulwiley, defendant’s sister; and (8) defendant. We provide the details of both direct and cross-examination as necessary to examine the issues in dispute.

¶ 16 1. Officer D’Oronzo

¶ 17 a. Direct Examination

¶ 18 D’Oronzo testified that he had been a police officer with the Cook County sheriff’s police for 21 years. While investigating this offense, he learned that people of interest included men nicknamed Pumkin, E.J., and Boo-man. D’Oronzo was "informed who they were by our gang guys." Detective Rafferty visited the home of defendant, also known as Pumkin, but defendant was not at home. On December 31, 2008, the police received a call from defendant’s mother indicating defendant was now at home, and D’Oronzo went there with Detective Ortiz⁴ and gang officer Terry Tabb to bring defendant to the station. D’Oronzo and Ortiz’s interview of defendant was not videotaped because, at that time, the police "believed him to be a witness." Defendant provided "a written statement as a witness," with ASA Maureen Delahanty present. After the statement was typed and defendant signed it, he was released. The police then picked up the person who defendant alleged was the offender.

¶ 19 D’Oronzo testified that, on January 1, 2009, Detective Stephen Moody, dressed in "a shirt and tie," went to defendant’s home to pick up defendant again. D’Oronzo did not go. Detective Moody drove defendant to the station in a plain unmarked car. Although defendant arrived at the station sometime in the morning or midday, D’Oronzo did not speak to defendant until sometime in the early afternoon. Defendant waited in the lobby or roll-call room, which D’Oronzo described as "a big room" with two doors. According to D’Oronzo, while defendant was waiting at the station, he was free to go if he had asked, as he was not handcuffed.

¶ 20 One of the reasons for bringing defendant back to the station on January 1 was for a possible lineup, but that did not happen. D’Oronzo did, however, interview defendant in order "to clarify some information." Specifically, when the police interviewed the suspect whom defendant had identified as the shooter, the suspect adamantly denied that he was the shooter and adamantly denied that he went by the street name provided by defendant. D’Oronzo’s interview with defendant on January 1 was videotaped.

¶ 21 b. Cross-Examination

¶ 22 On cross-examination, D’Oronzo testified that, although the shooting occurred on December 29, the victim did not die until December 31, thereby turning the investigation into a homicide investigation at that time. D’Oronzo did not learn that the victim had died until after his conversation with defendant on December 31. When defendant’s mother called the police, she indicated that defendant needed a ride to the station. When D’Oronzo, Ortiz, and Tabb arrived at defendant’s home on December 31, D’Oronzo and Ortiz both wore a shirt and tie with their badges and firearms, while Tabb was dressed in jeans, a T-shirt, and a black tactical vest with "Police" written on it. After they knocked on the door or rang the bell, defendant came outside to speak to them. D’Oronzo asked defendant to come with them, and he agreed. The officers did not handcuff defendant, and they did not draw...