No. 2009-2010 -BIN THE YOUTH AND GOVERNMENT

SUPREME COURT

______________________________________________________________________________

Marcus Foreman )Appellant-Defendant ) Appeal of the Circuit Court

) of Youth and Government ) Circuit of Illinois )

vs. ) No. 2000-2010 B )

People of the State of Illinois ) Honorable Charles TramelAppellee-Plaintiff ) Presiding Judge

___________________________)__________________________

BRIEF AND ARGUMENT FOR THE APPELLEES-PLAINTIFFS

Anastassia Golovashkina

Attorney for the Appellees-Plaintiffs, the People of the

State of Illinois

I. THE TRIAL JUDGE WAS CORRECT IN HIS DENIAL OF DEFENDANT MARCUS FOREMAN’S PRE-TRIAL MOTION TO TRANSFER VENUE.

The Appellee maintains that the trial judge did not err in denying the

defense counsel’s motion for transfer of venue and properly kept the location

of the trial in Cook County. The first issue presented by the Appellant

following the jury’s finding of Defendant Marcus Foreman as guilty of first-

degree murder is the trial judge’s decision to overrule the defendant’s pre-

trial motion to transfer venue. On July 24th, 2009, defense counsel filed a

motion pursuant to 725 ILCS 5/114-6 to change the trial’s location.

According to the statute, “A defendant may move the court for a change of

place of trial on the ground that there exists in the county in which the

charge is pending such prejudice against him on the part of the inhabitants

that he cannot receive a fair trial in such county.” At the hearing, Foreman’s

attorneys argued that the defendant was subjected to prejudicial pre-trial

publicity, thus denying his right to a fair trial. At a hearing, the trial judge

ruled that there was insufficient evidence of the existence of such prejudice,

and thus overruled the motion. On appeal, the Appellant contends that Judge

Collins was incorrect to overrule this motion. We, the People of the State,

affirm that Judge Collins properly denied the defendant’s request for a

change of venue.

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Both the Constitution of the United States of America and the

Constitution of the State of Illinois accordingly support this decision.

Amendment V of the Constitution of the United States of America states

that, “No person shall be deprived of life, liberty, or property, without due

process of law.” Amendment VI further states, “The accused shall enjoy the

right to a speedy and public trial, by an impartial jury of the State and

district where in the crime shall have been committed.” Article I, Section 8

of the Constitution of the State of Illinois further affirms, “In criminal

prosecutions, the accused shall have the right to appear and defend by

counsel…and to have a speedy public trial by an impartial jury of the county

in which the offense is alleged to have been committed.” Although the state

has provided defendant Marcus Foreman with the full extent of all of these

aforementioned entitlements, Foreman’s counsel contends that the trial

court’s inability to find an entire jury of categorically and conclusively

uninformed members has infringed upon the defendant’s constitutional right

to a fair trial. While jury selection is by no means ever a perfect process, the

State maintains that minor limitations have not negatively affected the

defendant’s ultimate receipt of a fair trial.

Judge Collin’s decision in the case at bar is consistent with the

precedent established in the case of People of the State of Illinois v. Stanley

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Meyers, 20 Ill.App.3d 83, 312 N.E.2d 741, 12 Ill.Jun. 84 (1974). In this

case, defendant Stanley Meyers was convicted of inflicting deviate sexual

assault during a riot at a Pontiac penitentiary. On appeal, the defendant

argued that the trial court committed reversible error in denying his motion

for a change of place of the trial due to media exposure relating to the trial.

The rule in Illinois concerning motions for change of venue states

that,

“Such a motion is subject to review as an act of discretion by the trial judge. Upon review, the test is whether or not a denial of such motion for challenge was a clear abuse of the court’s discretion.” People v. Meyers, 20 Ill.App.3d 83, 312 N.E.2d 741, 12 Ill.Jun. 84 (1974), 85.

In Meyers, the court determined,

“The articles in the newspaper tendered with the motion were not inflammatory. The name of the defendant appeared only peripherally as one of the number of inmates who had been indicted. It cannot be said that he was the focus of any report.” People v. Meyers, 20 Ill.App.3d 83, 312 N.E.2d 741, 12 Ill.Jun. 84 (1974), 85.

Similarly, in the case at bar, Foreman’s pre-trial publicity was neither

extensive nor inflammatory. The defendant was only mentioned in a total of

two newspaper articles and several short nightly news segments concerning

the murder of Ronald Silverman. The first newspaper article appeared as a

small story on the seventh page of a lengthy June 16th Chicago Tribune ,

entitled “Tavern Argument Leads to Street Shooting”. The title lacks

mention of either Foreman, Silverman, or even the Mezzaluna Tavern by

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name; more importantly, due to its location on the seventh page of as

massive of a newspaper as the Chicago Tribune, it is unlikely that the article

was read by more than a few readers. On June 19th, the newspaper ran an

article titled “Street Shooting Victim Was Gulf War Hero,” which included

brief descriptions of Silverman’s army service during the Gulf War. While

the article does mention the defendant by name and includes photographs of

both Silverman and Foreman, both were incorporated to serve the

journalistic interest and were in no way incriminatory towards the defendant.

The third and final article, entitled “Celebrating Our Home-Grown Heroes,”

was published on July 4th, and included absolutely no mention of Marcus

Foreman’s involvement in the victim’s death. In fact, the article quoted one

of Silverman’s colleagues as stating that “Ronald Silverman’s life was taken

from him back here at home as another victim of mindless street violence.”

To all intents and purposes, only two of the defense’s three cited newspaper

articles actually mention Foreman. While the stories in the case at bar

reference the defendant more extensively than those in Meyers, like Meyers,

all three articles devote little specific attention to the defendant. The

majority of the media’s coverage concerning the shooting was devoted to

victim Ronald Silverman’s prior service to the military.

The rule in Illinois further holds that,

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“Each case is to be judged upon the face of community prejudice. The record of voir dire examination provides a significant basis to show that absence of community prejudice which permits a fair trial.” People v. Meyers, 20 Ill.App.3d 83, 312 N.E.2d 741, 12 Ill.Jun. 84 (1974), 85.

In People v. Meyers, the court stated,

“Defendant does not point out any matter in the voir dire which suggests that the jurors were unable to consider the evidence presented impartially. With such facts, we cannot say that there was an abuse of discretion in denying the motion.” People v. Meyers, 20 Ill.App.3d 83, 312 N.E.2d 741, 12 Ill.Jun. 84 (1974), 85.

The defendant in the case at bar references the fact that ten our of the

twelve jurors ultimately selected revealed some recollection of either the

newspaper articles or the television snippets which made reference to his

potential involvement in the death of Ronald Silverman. However, if we are

to accurately assess a community’s prejudice, we must first make an

accurate assessment of the community itself. In the modern-day age of

information technology- an age filled with instantaneous news coverage

though newspapers, magazines, cell phones, and television - it is naïve to

expect all potential jurors to arrive without any knowledge whatsoever

concerning as compelling of a news topic as a murder. Perhaps more

importantly, with the modern-day inventions of cell phones, text messaging,

e-mail, and the internet, it is naïve to expect anyone within a given region to

be oblivious concerning a major event. Foreman’s attorneys would have

received a similar response from the prospective jurors of a neighboring

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county as they had in Cook County. Thus, the effects of a change of venue

would have been futile at best.

As evidenced by the sole existence of three newspaper articles and

several short nightly news segments concerning the incident, the ten juror’s

possession of prior knowledge concerning the case is considerably limited.

All information presented in the articles was, regardless, ultimately admitted

into the trial. While an argument may be made concerning the biases

conveyed in such articles, it is illogical and impracticable to infer that the

minor biases these brief reports may have conveyed have sufficiently

encroached upon the jurors’ abilities to disregard them; as all seated jurors

stated themselves, they felt that they could lay aside anything they had heard

n the media and determine the case strictly on trial evidence. Finally, despite

whatever biases the aforesaid reports may have had, the trial itseld brought

out evidence of the reputation of both the victim and the defendant, thus

providing the jury with a more comprehensive, detailed, and accurate view

than what was presented in the news reports. Not one of the jurors had

access to any of the news reports once the Voir Dire process had begun; they

were, however, continuously exposed to the evidence presented in the

criminal trial—information which, after such prolonged exposure, overrides

any pre-trial knowledge the jurors may have possessed.

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The trial judge in Meyers was upheld in his denial of the defendant’s

motion for a change of venue. As the analogous similarities between this

case and the case at bar indicate, the trial judge in this case was also correct

in his denial of pre-trial motion for a transfer of venue.

The judge’s decision to overrule defense counsel’s motion for a venue

change is further supported by the case of People of the State of Illinois v.

Ivory Townes, 130 Ill.App.3d 844, 474 N.E.2d 1334, 86 Ill.Dec. 137 (1985).

In this case, defendant Ivory Townes was convicted of two counts of

attempted murder, two counts of home invasion, and one count each of rape,

robbery, and deviate sexual assault. On appeal, the defense raised the issue

of whether or not extensive pre-trial publicity surrounding the case

negatively affected the defendant’s right to a fair and speedy trial. During the

trial, the court twice denied Townes’ motion for a change of venue based on

the fact that several jurors admitted exposure to such media; the appellate

court affirmed.

The rule in Illinois states that,

“A defendant is entitled to a change of place of trial when, as a result of adverse pretrial publicity, it appears that there are reasonable grounds to believe that the prejudice alleged by defendant actually exists and, as a result, there is a reasonable apprehension that the accused cannot receive a fair and impartial trial.” People v. Townes, 130 Ill.App.3d 844 (1985), 854.

In support of his claim to prejudicial pre-trial publicity, the defendant

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in Townes attached several newspaper articles, and made reference to

several allegedly prejudicial radio and television broadcasts. Similarly to the

news reports in this case, such reports made reference to the defendant’s

previous convictions, in addition to commentary on the current trial.

In Townes, the court determined,

“We do not deem these stories or other matters brought to public attention sufficient to establish community prejudice against defendant or to have deprived him of a fair trial. The publicity was not particularly voluminous or pervasive despite the defendant’s attempts to characterize it as such. Over two months passed between the defendant’s convictions and the date scheduled for voir dire. Moreover, the news accounts were accurate and non-inflammatory. The mere fact that pretrial publicity references to a defendant’s past crimes is not sufficient to presume bias on the part of prospective jurors.” People v. Townes, 130 Ill.App.3d 844 (1985), 854.

In the case at bar, defendant Marcus Foreman made several similar

attempts to characterize his media portrayals as both voluminous and

pervasive; in truth, the reports were neither. In terms of volume, a mere three

articles were published in total which bore any relation to the case at bar. In

terms of substance, only two articles actually mentioned the defendant by

name; the third merely mentioned a brief biography of victim Ronald

Silverman, attributing his recent death to “mindless street violence.”

In order to address the question of whether or not a defendant has

received a fair trial, it is of utmost importance to first ask what the purpose

of such a trial actually was. In Foreman’s case, the question was not whether

or not he had killed Ronald Silverman—but rather, whether or not such an

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act was justifiable under the grounds of self-defense. The jury was already

informed of the fact that Foreman had killed Silverman; now, their duty was

solely the determination of whether or not this act was a form of protection.

Out of the ten seated jurors in the case at bar who admitted to some

minimal recollection of either the television or newspaper reports concerning

the murder, all felt that they could lay aside any and all prior knowledge

concerning the case. As has been previously stressed, this prior knowledge

was incredibly limited to begin with. Thus, it is entirely logical to infer that

such minimal bits of information were successfully ignored and did not

infringe upon the jury’s ability to determine a fair and un-biased verdict.

Based on the applicable parallels between Townes and the case at bar, the

State maintains that the Townes precedents, when applied to this case, fully

support Judge Collins’ accuracy in denying Foreman’s pre-trial motion for a

change of venue.

The judge’s decision in the case at bar is also supported by the case of

People of the State of Illinois v. Perry Olinger, 112 Ill.App.2d 324, 493

N.E.2d 579, 97 Ill.Dec. 772 (1986). In that case, co-defendants Perry

Olinger and William Duncan were charged by indictment of the murder of

three people; both were also charged with armed robbery, armed violence,

and conspiracy. Prior to the trial, Olinger’s motion for a change of venue

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based on extensive pre-trial publicity was denied. The trial court’s decision

was affirmed on appeal.

The rule in Illinois states that,

“A motion for change of venue must be granted only when there are reasonable grounds to believe that the prejudice actually exists and that by reason of the prejudice there is reasonable apprehension that the accused cannot receive a fair and impartial trial. As a practical matter this means that a change of venue should be granted when it becomes apparent that it will not be possible to find 12 jurors sufficiently unfamiliar with the details of the case to withstand a challenge for cause.” People v. Olinger, 112 Ill.App.2d 324, 493 N.E.2d 579, 97 Ill.Dec. 772 (1986), 343.

In Olinger, the court determined,

“It is undisputed that there was extensive publicity regarding the murders, which were a highly unusual and sensational event…extensive publicity clearly included mention of prejudicial evidence which would have been inadmissible in the murder trial.” People v. Olinger, 112 Ill.App.2d 324, 493 N.E.2d 579, 97 Ill.Dec. 772 (1986), 343.

In Olinger, coverage of the trial included extensive front-page reports

about the defendant and his prior convictions. In the case at bar, however,

only three newspaper articles were published which made any reference to

the murder of Ronald Silverman; moreover, only two of these articles

identified the defendant by name. In further contrast to Olinger, no articles

were published concerning the defendant’s actual trial—the last article to

make any specific reference to defendant Marcus Foreman was published on

June 19th, 2009. Perhaps most importantly, unlike in Olinger, not one of the

newspaper reports concerning the case at bar was printed on the front page.

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In fact, the first article, which provided the breaking news coverage of the

Mezzaluna Tavern shooting to readers of the Chicago Tribune, was

published on the seventh page of the notoriously lengthy newspaper. As the

extensive discrepancies between these two cases demonstrate, the publicity

in Olinger was much more extensive than that of this case. Nonetheless,

Olinger was denied in his plea for a second trial. If as extensive publicity as

that found in Olinger is deemed insufficient for a change of venue, so should

that of the much more modestly-publicized case at bar.

During jury selection in Olinger, it was also revealed that a

considerable majority of prospective jurors had some acquaintance with the

case—just as was exhibited within the case at bar. As happened in this case,

the defendant in Olinger exhausted his peremptory challenges, upon which

he renewed his motion for a change of venue; the motion was again denied.

Despite these conditions, Olinger was nonetheless denied a second trial; due

to the nearly duplicate nature of the two cases’ jury selection proceedings,

this precedent is fully applicable to the decision in this case. According to

the rule of law stated in Olinger, it is not proper to grant a change of venue

simply because the defense would have preferred to have more preemptory

challenges. The jurors must possess an actual bias that is demonstrated to the

extent where they could be challenged for cause; however, such was not

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found to be so in Foreman’s case. Rather than legitimate evidence of bias,

the sole evidence backing Foreman’s claim for change of venue is the fact

that ten out of twelve jurors possessed some recollection of either of a select

few media sources which chose to publish an oversimplified, forgettable

version of the murder of Ronald Silverman. For a change of venue, a

verified, proven bias—not a simple theory of possible bias—of a juror must

exist in order to dismiss that juror. Just as is the case in Olinger, however,

Foreman’s attorneys were unable to provide such evidence.

Consequently, as derived from the strikingly parallel circumstances

found between Olinger and the case at bar—in which those of Olinger

function as a much more exaggerated version of those in the case at bar—we

affirm that trial judge Collins was correct in his denial of Foreman’s pre-trial

motion for a change of venue.

The judge’s decision in this case is further supported by the

precedents established by the case of People of the State of Illinois v. Alan

R. Taylor, 101 Ill.App.2d 377; 462 N.E.2d 478 78 Ill.Dec. 359 (1984). In

that case, defendant Alan R. Taylor was convicted of the felony murder and

armed robbery of a 17-year-old Lisa Conn, employee of Zip-Tone Cleaners

in Peoria, IL. While the defendant was not alone in this crime others who

were involved were dismissed due to insufficient evidence. Although the

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defendant in Taylor was successfully granted a re-trial in a different county,

there is a plethora of discrepancies which amply distinguish its decision

from a decision appropriate for the case at bar.

At the time of the murder, the defendant was 13 years old and had no

police or juvenile record. The investigation quickly became a source of

major hype in Peoria county, receiving daily coverage in nearly every radio

station, television news program, and local newspaper that the region had to

offer. Posters were also posted in massive frequencies around the area,

advertising $20,000 rewards for information. In fact, the investigation was

so extensive and prevalent that it had to be moved from Peoria police

headquarters to larger quarters at a local YMCA.

In Taylor, the court said:

“It is not necessary that jurors be unaware of the case before they assume their roles in the jury box. Crimes, especially heinous crimes, are of great public interest and are extensively reported. It is unreasonable to expect that individuals of average intelligence and at least average interest in their community would not have heard of any of the cases which they are called upon to judge in court. Total ignorance of the case is exceptional, and is not required.” People v. Taylor, 101 Ill.App.2d 377 (1984), 386.

In Taylor, the defendant was swarmed with such excessive pre-trial

publicity that of the immense number of jurors considered for inclusion

during Voir Dire, an infinitesimal number arrived without significant pre-

trial bias concerning the case. Six of the jurors ultimately sworn in held

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knowledge of the aforementioned codefendant’s release due to insufficient

evidence—a fact which undoubtedly fostered a bias within the selected juror.

Perhaps more importantly, three of the ultimate jurors held major knowledge

of the defendants’ performance on a lie detector test, which the dismissed

codefendant passed and defendant Alan Taylor failed. In the State of Illinois,

lie detector tests are inadmissible to prove either guilt or innocence; the fact

that 25% of the selected jurors possessed extensive recollection of such

discriminatory evidence regardless of this law further demonstrates the

Taylor jury’s heavy bias.

In stark contrast to the circumstances of Taylor, in the case at bar, the

defendant’s involvement in the murder of Ronald Silverman was only

publicized in two separate newspaper articles, and in brief segments of a

single night of televised news broadcasting. As stressed before, Foreman’s

involvement in the death of Silverman was not the question of his trial;

rather, the jury was asked to determine whether or not Foreman’s

involvement was legal under the grounds of self-defense.

Moreover, unlike the extensive media coverage of inconclusive lie

detector tests found in Taylor contained significant portions of information

(namely, the results of such tests) not admitted as trial evidence, in the case

at bar, news coverage contained no such prejudicial information. As

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mentioned previously, news coverage the incident at issue in this case

consisted solely of the same facts as those that were eventually included on

the actual trial. It is futile to argue that the contemporary news media may

have placed its inherent ‘guilty’ tilt on such coverage as grounds for a

transfer of venue, since the jurors were nonetheless exposed to these same

exact facts under this same exact tilt (likely to be even more so skewed

during the trial than during short, essentially insignificant snippets within the

broadcast and print media) by the prosecution attorneys at the trial in this

case. In effect, although ten our of twelve jurors in the case at bar revealed

some minimal recollection of either the televised or printed coverage of the

case, such coverage was by no means substantial enough to impact their

roles as jurors.

The Taylor court’s decision affirms this assertion, explaining,

“What is required is the assurance that a juror will be able to set aside all information he has acquired outside the courtroom, long with any opinions he has formed, and decide the case strictly on the evidence as presented in the courtroom.” People v. Taylor, 101 Ill.App.2d 377 (1984), 386.

The Taylor further states,

“It is sufficient if the juror can lay aside his impression or opinion and render a verdict based on evidence presented in court.” People v. Taylor, 101 Ill.App.2d 377 (1984), 391.

In Taylor, the trial judge was faced with an admittedly “impossible”

task. Numerous records, including a public opinion poll conducted by the

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defendant’s attorneys, as well as the record of Taylor’s Voir Dire as a whole

indicate widespread awareness of the case. Even though the trial took place

some thirty years ago—an age before text messaging, cell phones, CNN, and

e-mail news alerts—its prevalence proved to be so extensive that almost no

prospective jurors were found to know nothing of the case. Even individuals

who had initially reported to remembering very little of the case responded

to further questioning by providing specific details. Under such

overwhelming circumstances, the Taylor court found it insufficient to base a

prospective juror’s eligibility solely on their opinion of whether or not they

could to lay preconceived opinions aside. Impartiality in such a prejudicially

and acutely reported case proved to be impossible in Peoria County, and the

defendant was granted a re-trial at a different venue.

The rule in Illinois states that:

“Impartiality is not a technical conception. It is a state of mind. For the ascertainment of this mental altitude of appropriate indifference, the Constitution lays down no particular tests and procedure is not chained to any ancient and artificial formula.” People v. Taylor, 101 Ill.App.2d 377 (1984), 391.

In the case at bar, all seated jurors stated that they felt they could lay

aside anything they had heard in the media and decide the case strictly on

the evidence to be presented at the trial. Unlike the extraordinary

circumstances surrounding Taylor media coverage, the very limited coverage

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provided in this case was not sufficient to restrict a prospective juror’s

ability to accurately determine whether or not they are able to set aside any

preconceived notions.

The court in Taylor also states,

“Although the decision to accept a potential juror as an impartial trier of fact is discretionary with the trial judge, the trial judge is obliged to insure that, in fact, the defendant receives a fair trial before a fair and impartial jury.” People v. Taylor, 101 Ill.App.2d 377 (1984), 386-387.

In accordance with this precedent, Judge Collins, the trial judge in the

case at bar made the following ruling and statement at the conclusion of the

change of venue hearing: “The evidence has not shown, in my opinion, any

reason why Mr. Foreman should not expect a fair trial without a change in

venue. As a matter of law, the case stays in Cook County.” Unlike the trial

judge in Taylor, Judge Collins’ responsibility to find twelve impartial jurors

was plagued by neither extensive publicity nor widespread knowledge of

inadmissible evidence, such as the lie detector results of Taylor. By contrast,

Collins successfully fulfilled his obligation as a trial judge by finding twelve

jurors who were either unknowledgeable concerning the case, or thoroughly

and wholly capable of setting aside all prior knowledge in their judging of

the case. Due to the significant differences between the cases of this case

and People v. Taylor, the decision of the Taylor is ultimately inapplicable to

the circumstances of the case at bar.

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Therefore, because news coverage of the case at bar was incredibly

short and limited, because such coverage was solely inclusive of evidence

later presented in the trial itself, and because all of the seated jurors held

either no knowledge of the case whatsoever or were found (after extensive

questioning) to be adequately capable of setting aside any preconceived

notions they may have previously possessed, based on the rule of law,

evidence, and precedents established by previous cases, the court should

affirm the trial court’s decision.

CONCLUSION

For the foregoing reasons, the Appellees-Plaintiffs respectfully requests this

Honorable court to affirm the conviction of the case at bar

Respectfully submitted,

Attorney for the Appellee-Plaintiffs,

The People of the State of Illinois

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Anastassia Golovashkina

II. THE TRIAL JUDGE WAS CORRECT TO OVERRULE DEFENSE COUNSEL’S OBJECTION TO THE ADMISSION OF DEFENDANT MARCUS FOREMAN’S STATEMENT, “I DON’T KNOW. I THOUGHT HE HAD A KNIFE. I THOUGHT HE HAD A KNIFE”.

The second issue presented by the Appellant following the jury’s

finding of Defendant Marcus Foreman as guilty of first-degree murder is the

incorrect admission of Foreman’s statement, “I don’t know. I thought he had

a knife. I thought he had a knife,” to Officer Lang. When Officer Lang

included Foreman’s pre-arrest statement as part of his testimony, the defense

promptly objected, but was overruled. The Appellant argues that Foreman

had been neither placed under arrest nor informed of his Miranda rights prior

to making the statement. The Appellant further contends that such

circumstances rendered the statement inadmissible, and its admission thus

inhibited the Defendant’s constitutional right to a speedy and fair trial. The

People of the State of Illinois affirm that the trial court properly admitted the

statement as evidence; moreover, we maintain that the statement’s admission

held no influence on the ultimate outcome of the trial.

The Appellee maintains that the trial judge did not err in denying the

defense counsel’s objection and properly admitted the statement as evidence.

Both the Constitution of the United States of America and the Constitution

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of the State of Illinois accordingly support this decision. Amendment V of

the Constitution of the United States of America states that, “No person shall

be…compelled in any criminal case to be a witness against himself, nor be

deprived of life, liberty, or property, without due process of law.”

Amendment XIV further supports this assertion, stating, “No state shall

make or enforce any law which shall abridge the privileges or immunities of

citizens of the United States; nor shall any State deprive any person of

liberty, or property, without due process of law.”

Article I, Section 10 of the Constitution of the State of Illinois states

that “No person shall be compelled in a criminal case to give evidence

against himself.” This provision has been expanded and elaborated upon on

numerous occasions in our nation’s history, most notably in the landmark

Supreme Court case of Miranda v. Arizona, in which a defendant confessed

to a number of crimes he was accused of without first being informed of

these aforementioned constitutional rights. The court ruled in the defendant’s

favor, thus requiring police officers to recite the famous Miranda warnings

to a criminal or suspect upon making an arrest. These Miranda warnings

inform the defendant of their basic rights, such as the right to remain silent

and the right to be provided with an attorney. In the case at bar, defendant

Marcus Foreman argues that the admission of his single pre-Miranda

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warning statement, “I don’t know. I thought he had a knife. I thought he had

a knife,” constitutes sufficient reversible error as to deny him a fair trial. The

Appellee maintains that the statement was correctly admitted, and that the

defendant thus received a fair trial.

The court’s decision in the case at bar is consistent with the precedent

established by the case of People of the State of Illinois v. John Romano,

139 Ill.App.3d 999, 487 N.E.2d 785, 94 Ill.Dec. 28 (1985). In the

aforementioned case, defendant John Romano was charged by indictment

for the reckless homicide of Brett Motisi. While being treated for minor

injuries associated with the incident at an emergency room soon afterwards,

Romano was questioned by several police officers while a security guard

stood outside of his room. During the trial, such statements were submitted

as evidence, and Romano was subsequently found guilty and sentenced to

three years’ imprisonment. On appeal, the defendant contended that the trial

court committed reversible error in admitting the statements he made

without the benefit of Miranda warnings as evidence. Aside from the case’s

distinct connection to the questioning of proper Miranda-based statement

exclusion, other events in Romano surrounding the questioned statements

(most notably the officer’s obtainment of short witness statements prior to

the defendant’s concrete arrest) parallel those in Foreman, as well.

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The rule in Illinois states that,

“Only statements made as a result of custodial interrogation must be preceded by Miranda warnings…The essential determination is whether the defendant was in custody or was otherwise deprived of his freedom in any significant way prior to the questioning.” People v. Romano 139 Ill.App.3d 999 (1985), 1009.

The State further concedes that “Miranda warnings are not required

merely because a defendant is a police suspect.” People v. Romano 139

Ill.App.3d 999 (1985), 1011. In the case at bar, no Miranda warnings were

given to Marcus Foreman prior to his statement, “I don’t know. I thought he

had a knife. I thought he had a knife.” While it is questionable as to whether

or not Officer Lang had begun to view Foreman as a potential suspect at that

given moment, such circumstances are irrelevant in the ultimate

determination of whether or not the statement’s admission was

constitutional.

In Romano, one of the statements made by the defendant (and

subsequently admitted into the trial as evidence) was “I hit the guy. I know I

killed the guy. I hit him.” In Romano the court explains, “Defendant’s

admission that he had struck the child and [the police officer’s] brief

observation at the scene alone would not necessarily require an arrest” 139

Ill.App.3d 999 (1985), 1012. As additional evidence of the officer’s

preconceived understanding of the situation, the defendant pointed out the

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officer’s investigation of the scene of the accident, which produced a total of

six witness statements-- however, the officer did not complete a single

narrative portion of each witness’s testimony until after the defendant’s

Miranda rights had been read. Similarly, in the case at bar, Officer Lang’s

brief observation of the scenario prior to speaking with Foreman was in no

way sufficient for the officer to make an arrest right then and there. The

crowd of Mezzaluna Tavern patrons shoved Marcus Foreman towards

Officer Lang with the explanation, “Here he is, officer,” an act which could

have been interpreted by Lang in several different ways. Although Officer

Lang was already aware that a shooting had taken place outside the

Mezzaluna, the crowd’s statement may be interpreted as indicating that the

man is a victim of the shooting. The precedent established by Romano

confirms Lang’s right to have a brief correspondence with several witnesses

prior to making any tangible arrests or gathering any extensive witness

testimonies; the officer in Romano was found to have acted in agreement

with criminal law, and thus, so should Officer Lang. Moreover, Officer Lang

did make an arrest immediately after Foreman responded “I don’t know. I

thought he had a knife. I thought he had a knife,” as is in further accordance

with Romano.

In Romano the court also states,

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“The final factor is an objective test; whether or not a reasonable man innocent of any crime would perceive he was in custody. The security guard was requested by the medical personnel and not the police.” People v. Romano 139 Ill.App.3d 999 (1985), 1011.

Similarly, in the case at bar, a crowd of Mezzaluna Tavern patrons

stood by as the defendant was questioned by Officer Lang. Like the security

guard in Romano, the nearby presence of the crowd of bar attendees was not

requested by Officer Lang. According to the precedent established by

Romano, the crowd’s presence can therefore not be factored in to the

determination of whether or not Foreman’s statement was noncustodial.

In Romano, the court said,

“Although the police did not tell defendant he was free to leave, neither did they prohibit him from leaving. In fact, the record reflects that defendant never asked to leave. On these facts, defendant’s freedom to leave was not restricted by the police to an extent implicating a custodial interrogation.” People v. Romano 139 Ill.App.3d 999 (1985), 1011.

Similarly to the circumstances of Romano, in the case at bar, Foreman

was not explicitly told that he was free to leave at any time. In manifest of

all circumstances surrounding the statement, however, such an explanation

on behalf of Officer Lang would have been unnecessary. The defendant was

questioned on the steps of a house-- a situation which he was able to leave at

any time. Although a crowd of Mezzaluna Tavern patrons stood by, as

explained previously, the crowd’s presence is not relevant to the ultimate

determination of whether or not Foreman’s freedom was restricted at the

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time of his questioning. Finally, like the defendant in Romano, Foreman

never explicitly asked Officer Lang if he could go. Instead, Foreman made

the conscious decision to answer the officer’s question. Ultimately, in both

cases, the trial judge did not err and properly admitted the defendant’s

statement as evidence.

The court’s decision to overrule defense counsel’s objection to the

admission of Marcus Foreman’s statement is further upheld by the case of

People of the State of Illinois v. Wayne Berry, 123 Ill.App.3d 1042, 463

N.E.2d 1044 79 Ill.Dec. 490 (1984). In this case, defendant Wayne Berry, a

seventeen-year-old mentally challenged male, was charged with two

offenses of residential burglary. During the trial, the defendant’s objection to

the admission of his taped confessions to police was denied and he was

subsequently found guilty and sentenced to four years’ imprisonment.

The facts of this case are relatively straightforward. Two neighboring

break-ins occurred during the months of February and April of 1983. While

investigating the incidents, Detective Redden was informed by a resident of

the area that she had seen the defendant around the time of the second

offense. Based upon this information, Redden went to the defendant’s house

and requested that Berry come with him to police headquarters, which Berry

did later that day in the company of his mother. At the station, Berry was

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subsequently subjected to an intimating interrogation by Redden, following

which the defendant agreed to provide two taped statements admitting his

guilt in both offenses. On appeal, the defendant contends that the trial court

judge committed reversible error in admitting the two taped statements as

evidence.

The primary factors in the court’s determination of whether or nor

Berry received a fair trial were the circumstances surrounding the

defendant’s submission of the two taped confessions, which were as follows:

Wayne Berry, a mentally challenged adolescent male living with his parents

and no prior experience in dealing with law enforcement officials, was

brought into the basement of police headquarters for questioning. Although

Berry’s mother had transported him to the headquarters, she remained

elsewhere during the interrogation. Following the interrogation, which took

place in a closed room with an officer stationed outside, Berry gave two

taped statements in which he admitted his guilt to both offenses. On appeal,

the court aimed to verify whether or not such circumstances agreed with the

precedents established by the landmark Supreme Court case Miranda v.

Arizona. The appellate court ultimately ruled in Berry’s favor and reversed

the court’s decision, thus granting the defendant a new trial.

The rule in Illinois states that,

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“The determination of whether an interrogation is custodial should focus on the objective circumstances surrounding the questioning and what a reasonable man innocent of any crime would perceive. To aid in this determination, there are several factors that should be considered, including: (1) the place of the interrogation; (2) statements or nonverbal conduct indicating an accused is not free to leave; (3) the extent of the knowledge of the law enforcement officers and the focus of their investigation; and (4) the intentions of the officers.” People v. Berry, 123 Ill.App.3d 1042 (1984), 1046.

While the interrogation (and subsequent submission of two self-

incriminatory statements) in Berry was undeniably custodial, Foreman’s

response to Officer Lang’s single question “What is going on here?” is not.

To verify Marcus Foreman’s statement as an exception to Miranda, the

statement must be found to be noncustodial in nature. To qualify Foreman’s

response “I don’t know. I thought he had a knife. I thought he had a knife” as

noncustodial, the State mandates an examination of four key aspects of the

circumstances surrounding the statement, at outlined above in Berry.

There are a plethora of discrepancies between the circumstances of

People v. Berry and People v. Foreman, which serve to clearly distinguish

the two cases from one another. In Berry, the defendant was an adolescent,

parentally-dependent male with an IQ of 80; perhaps most importantly, the

defendant had absolutely no experience in dealing with law-enforcement

officials. In the case at bar, defendant Marcus Foreman is a 25-year-old male

of average intelligence, as demonstrated by his ability to both live

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independently and hold a job at the Fresh Foods Grocer for eight years.

Moreover, Foreman has had prior experience in communicating with law-

enforcement officials. In December 2002, Foreman was convicted of

aggravated assault and sentenced to five years’ probation.

In Berry, the defendant was interrogated by Detective Redden in the

basement of a police station behind a closed door; outside of the closed door,

another officer was stationed. Although the defendant was reminded on

several occasions during the interrogation that he could leave at any time, it

is clear that the combination of the police officers’ nonverbal conduct (i.e.

stationing a security guard outside the defendant’s interrogation room and

separating him from his mother) and overall circumstances (i.e. interrogating

the defendant in the basement of a police station) indicated otherwise.

Although both questionings took place before the defendants were

read their Miranda rights, in the case of Berry, such questioning was

considerably more extensive. During the interrogation, an intimidated Berry

was informed of numerous daunting circumstances surrounding the offense,

such as fingerprints found at the scene, which the defendant was told would

be later compared to his own fingerprints. This led directly to the

defendant’s submission of the two taped confessions in question-- all of

which were not preceded by a reading of the defendant’s Miranda rights. By

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contrast, in the case at bar, Officer Lang simply asked Foreman “What is

going on here?”. Foreman’s response, “I don’t know. I thought he had a

knife. I thought he had a knife,” is in neither self-incriminating nor likely to

lead to further self-incrimination (as is the case in Berry). Moreover, after

hearing Foreman’s response, Officer Lang immediately identified the male

as a potential suspect for the crime committed. Officer Lang promptly

arresting the defendant and informed him of his Miranda rights.

Most importantly, in the case of Berry, both police officers admitted to

purposefully avoiding arresting the defendant to circumvent Miranda

requirements.

In Berry, the court said,

“The circumvention of the requirements of Miranda appears to have been the officer’s primary intent here. We believe that this case presents a clear picture of an officer attempting to turn a custodial interrogation into a noncustodial one by repeating a litany that the defendant was free to leave…Miranda warnings should have been given. The purpose and flagrancy of official misconduct are apparent.” People v. Berry, 123 Ill.App.3d 1042 (1984), 1046.

While the intent of the officers in Berry was admittedly malicious, in

the case at bar, Officer Lang’s question “What is going on here?” was solely

motivated by the officer’s need to obtain a clearer understanding of the

situation. When Officer Lang arrived on the scene of Ronald Silverman’s

murder, a group of Mezzaluna Tavern patrons promptly handed Foreman

over to the officer with the vague explanation “Here he is, Officer.” At that

30

moment, Officer Lang had no way of knowing who Marcus Foreman was.

The officer had no logical reason to make an arrest right then and there. In

order to effectively carry out his responsibilities as a police officer, Officer

Lang first had to make a clear assessment of the situation-- an assessment

which would have been impossible had the officer not asked Foreman,

“What is going on here?” Unlike the extensive, intimidating interrogation

found in the case of Berry, Officer Lang’s single question to Marcus

Foreman was merely an effort to gain a better understanding of the situation

at hand.

The trial judge in Berry was erroneous to admit defendant Wayne

Berry’s two taped confessions as evidence, and the defendant was

subsequently granted a second trial. As the strong contrast between this case

and the case at bar demonstrates, however, the trial judge in Foreman was

correct in his admission of Foreman’s statement as evidence.

The court’s decision is further supported by the case of People of the

State of Illinois v. Mervi Smith, 150 Ill.App.3d 524; 501 N.E.2d 1010 103

Ill.Dec. 693 (1986). In this case, a fire at defendant Mervi Smith’s residence

caused the death of James Henderson, the defendant’s boyfriend. The day of

the fire, Smith was called down to police headquarters to make a statement.

Due to the overwhelmingly custodial nature of the interrogation, however,

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the trial judge denied admission of Smith’s statement as evidence. At the

suppression hearing concerning the statement’s admission, the State of

Illinois filed an appeal, arguing that the defendant was not in custody when

she gave the written statement. Ultimately, the trial judge’s decision to

suppress the statement was affirmed.

On the morning of Smith’s interrogation, she was driven to police

headquarters by a friend. Smith was subsequently interrogated for

approximately two hours in a small, windowless room. Following the

interrogation, Smith admitted responsibility for the fire and agreed to

provide an oral confession. At this time, police officers advised the

defendant’s friend that the proceedings would be quite lengthy, and that they

would provide Smith with transportation once such business was taken care

of. Following her oral confession, Smith was asked to provide a written

confession as well. Twelve hours past her arrival at police headquarters, the

defendant was finally transported home by the police. During the entire time

span, however, the defendant was not once informed of her right to remain

silent, her right to an attorney, her right to stop the interview, or her freedom

to leave. At trial, the court found that the interrogation evolved into a

custodial one once the defendant made oral statements concerning her

responsibility for the fire, and thus suppressed its submission.

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The rule in Illinois states,

“The state bears the heavy burden of showing that the statement was knowingly, intelligently, and voluntarily made.” People v. Berry, 123 Ill.App.3d 1042 (1984), 1044.

In order for a statement made prior to the reading of a defendant’s

Miranda rights to be admitted into the trial as evidence, the statement must

be made (a) knowingly, (b) intelligently, and (c) voluntarily. “Knowingly,“

the first component of this three-prong rule, refers to whether or not the

individual making the statement is aware of what he or she is doing-- whom

he or she is speaking to, and what he or she is saying to them. In the case at

bar, Foreman’s awareness of the fact that he was speaking to a police officer

is demonstrated by two key aspects of the circumstances surrounding his

statement. First, Officer Lang arrived on the scene in a squad car, dressed in

his policeman uniform. Second, while handing Foreman over to Officer

Lang, members of the Mezzaluna Tavern crowd exclaimed, “Here he is,

Officer.” The fact that the defendant understood what he was saying is

demonstrated by his word-for-word repetition of the statement while being

questioned by his lawyer. It is logical to infer that, during this questioning,

Foreman was in maximum possession of his mental faculties. In response to

Officer Lang’s question on the night of Silverman’s murder, the defendant

responded, “I don’t know. I thought he had a knife. I thought he had a

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knife.” During Foreman’s aforementioned session with his own defense

attorney, Foreman answered in a nearly identical manner. When Foreman

was asked by his lawyer as to whether or not he had actually seen Silverman

carrying a knife, Foreman responded, “I don’t know. I thought he had one.”

The acute similarities between the two statements leads us to the logical

conclusion that the statement in question was made “knowingly.”

In reference to the second component of the said three-prong rule, the

Smith court said,

“The written statement did not indicate the degree of intelligence one would expect from a person with the defendant’s background.” People v. Smith, 150 Ill.App.3d 524 (1986), 529.

Although the defendant testified to being thirty-seven years old, a

college graduate, and employed as a laboratory technician and supervisor at

Abbott Laboratories, her written statement--6 ½ pages in length-- was

fraught with numerous grammatical errors, misspellings, and rambling

statements-- elements highly uncharacteristic of an individual with Smith’s

level of education. In the instance of the case at bar, however, Marcus

Foreman’s statement, “I don’t know. I thought he had a knife. I thought he

had a knife,” demonstrates a degree of intelligence appropriate for a 25-year-

old male employed in a grocery store. While the statement’s vocabulary is

arguably basic, it is not fraught with the apparent ramblings and grammatical

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fallacies found in Smith’s. Moreover, unlike the 6½-page self-incriminatory

written testimony provided by the defendant in Smith, Foreman’s statement

is brief (three short, succinct sentences long) and does not reveal substantial

information concerning his involvement in the victim’s murder. Perhaps

most importantly, while not one of the statements Smith made on her twelve-

hour-long day of questioning was preceded by a reading of the defendant’s

Miranda rights, Foreman’s rights were immediately read following his

response to the officer’s question.

Finally, in determining whether or not Foreman’s statement conforms

to being “voluntary,” the third prong of the aforesaid three-prong rule, we

must examine whether or not the defendant was forced into providing the

statement. In Smith, for example, the defendant’s submission of a 6½-page

written confession was clearly involuntary.

The Smith court said,

“The dispositive question is whether, based on circumstances as a whole, a reasonable innocent person would have believed she was free to leave the police station…The evidence tends to suggest that the defendant became the focus of the officer’s investigation once she made her verbal admissions and that a reasonable person would not have considered herself free to leave until she had acceded to the officers’ request to give a written confession.” People v. Smith, 150 Ill.App.3d 524 (1986), 530.

By contrast, Foreman was not subjected to the strong pressure and

intimidation which the defendant in Smith was. In fact, in strong distinction

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to the cited case, Officer Lang did not ask Foreman to provide any sort of

statement-- oral or written. The sole purpose of Officer Lang’s question,

“What is going on here?” was to obtain a clearer understanding of the

circumstances surrounding him. Foreman was not in no way compelled by

the officer to provide a response. Although Officer Lang did repeat the

question once, such repetition was solely based on motivations of basic

human instinct. Lang may have inferred that Foreman had not properly

heard his question the first time; he may have also assumed that he had not

heard Foreman’s first response, had there been one. Regardless of Lang’s

employment as a law-enforcement official, in sum, it is nothing more than

natural to repeat a question one does not immediately receive an answer to.

While the trial judge in Smith was correct sustain defense counsel’s

objection to the admission of defendant Mervi Smith’s strongly coerced

testimony as trial evidence, the numerous discrepancies between Smith and

Foreman demonstrate that the precedents established in the cited case are not

applicable to the case at bar. The trial judge in Foreman was correct to

overrule defense counsel’s objection to the admission of Foreman’s

statement, “I don’t know. I thought he had a knife. I thought he had a knife.”

The judge’s decision to overrule defense counsel’s objection to

Marcus Foreman’s statement is upheld by the court’s ruling in the case of

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People of the State of Illinois v. Clarence A. Kennedy, 66 Ill.App.3d 267,

383 N.E.2d 713, 22 Ill.Dec. 905 (1978). While walking down a deserted

highway in the middle of the night, defendant Clarence A. Kennedy was

stopped by two patrol officers. In accordance with Edwards County law,

patrol officers are required to stop hitchhikers in order to render assistance

or check them out. During this time, the defendant was found to be in

possession of a pistol. Upon this discovery, he was subsequently transported

to the Grayville police station to verify the owner of the gun. Although a

database search ultimately cleared both the defendant and the gun, the

defendant failed to produce any proof of ownership, and was thus required to

turn the gun over to police. On a hunch, a police officer decided to test the

gun against the wounds found in a recent, nearby homicide. The two

matched, and the defendant was subsequently tried and convicted of murder.

On appeal, the defendant asserted that the trial court erred in allowing

certain confessionary statements to be presented into evidence where the

statements were made without appropriate Miranda warnings.

The rule of law governing suppressions of confessions states,

“A confession must be a voluntary acknowledgement of guilt of the perpetration of a crime.” People v. Kennedy, 66 Ill.App.3d 267 (1978), 277.

In People v. Kennedy, the court states,

“No such acknowledgement was ever made by the defendant in his answers to

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Boyer and Judge. Accordingly, section 114-11 is not applicable in this instance.” People v. Kennedy, 66 Ill.App.3d 267 (1978), 277.

In the case at bar, attorneys for defendant Marcus Foreman filed a pre-

trial motion pursuant to the same statute; both were based on the fact that the

defendant had not been given his Miranda warnings. In the case of

Kennedy, the court ultimately found that the statements made by the

defendant during his encounter with police on Route 1 were made while he

was in custody, and thus should have been preceded by Miranda warnings.

However, the statements’ admission into the trial bore no weight on the

trial’s ultimate outcome.

The rule in Illinois states that,

“Constitutional errors should be regarded as harmless if the reviewing court can say beyond a reasonable doubt that the error did not contribute to the verdict.” People v. Kennedy, 66 Ill.App.3d 267 (1978), 278.

In Kennedy, the court states,

“The State’s proof of the defendant’s guilt was supported by competent and persuasive circumstantial evidence which not only established possession of the murder weapon, but established the defendant’s presence at the murder scene as well.” People v. Kennedy, 66 Ill.App.3d 267 (1978), 278.

While the statement in question in the case at bar did not require a

reading of the defendant’s Miranda warnings, this fact in no way affects

what is perhaps the most important aspect surrounding the statement’s

proper admission into the trial. As was the case in People v. Kennedy, the

admission of Foreman’s statement into the trial facts bore no weight

38

whatsoever on the trial’s ultimate outcome. In fact, Mr. Foreman repeated

his belief that Ronald Silverman was in possession of a knife numerous

times over the course of the trial.

As mentioned previously, Foreman went as far as incorporating a

virtually identical statement to the one in question into his sworn testimony

to the trial court. In response to Officer Lang, Foreman said, “I don’t know. I

thought he had a knife. I thought he had a knife.” In his sworn testimony,

Foreman states, “I don’t know. I thought he had [a knife].” Whether or not

Foreman’s pre-Miranda statement had been admitted into the trial facts, the

jury would have regardless been informed of the defendant’s belief that his

victim was in possession of a knife. To all intents and purposes, Foreman’s

statement helps, rather than hinders, his case. The central question of

Foreman’s trial was not whether or not Foreman had shot and killed

Silverman, but rather, whether or not such a shot was justifiable under the

grounds of self-defense. In effect, informing the jury that Foreman “thought

[Silverman] had a knife” on the night of the offense (rather than solely as a

post-offense statement the defendant fabricated with the help of his attorney)

only enhances the defendant’s justification of the murder as self-defense.

The trial judge in Kennedy did not err, and the appellate court denied the

defendant a second trial. Due to the aforesaid parallels between the case and

39

the case at bar, the precedent established by Kennedy is applicable

verification of the trial judge’s accuracy in admitting the defendant’s

statement in the case at bar.

Therefore, because Foreman’s statement was properly admitted into

the trial court as evidence, and that defense counsel’s Miranda objection was

appropriately denied, based on the rule of law, evidence, and precedents

established by previous cases, the court should affirm the trial court’s

decision.

CONCLUSION

For the foregoing reasons, the Appellees-Plaintiffs respectfully requests this

Honorable court to affirm the conviction of the case at bar.

Respectfully submitted,

Attorney for the Appellee-Plaintiffs,

The People of the State of Illinois

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Anastassia Golovashkina

41