No.

2009-2010 -B IN 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 Tramel Appellee-Plaintiff ) Presiding Judge ___________________________)__________________________
BRIEF AND ARGUMENT FOR THE APPELLEES-PLAINTIFFS Anastassia Golovashkina

Attorney for the AppelleesPlaintiffs, the People of the State of Illinois

I. THE TRIAL JUDGE WAS CORRECT IN HIS DENIAL OF DEFENDANT MARCUS FOREMANS PRE-TRIAL MOTION TO TRANSFER VENUE. The Appellee maintains that the trial judge did not err in denying the defense counsels 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 jurys finding of Defendant Marcus Foreman as guilty of firstdegree murder is the trial judges decision to overrule the defendants pretrial motion to transfer venue. On July 24th, 2009, defense counsel filed a motion pursuant to 725 ILCS 5/114-6 to change the trials 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, Foremans 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 defendants request for a
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change of venue. 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 counseland 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, Foremans counsel contends that the trial courts inability to find an entire jury of categorically and conclusively uninformed members has infringed upon the defendants 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 defendants ultimate receipt of a fair trial. Judge Collins decision in the case at bar is consistent with the
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precedent established in the case of People of the State of Illinois v. Stanley 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 courts 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, Foremans 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
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mention of either Foreman, Silverman, or even the Mezzaluna Tavern by 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 Silvermans 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 Foremans involvement in the victims death. In fact, the article quoted one of Silvermans colleagues as stating that Ronald Silvermans 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 defenses 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 medias coverage concerning the shooting was devoted to victim Ronald Silvermans prior service to the military.
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The rule in Illinois further holds that,

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 communitys 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 nave 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 nave to expect anyone within a given region to be oblivious concerning a major event. Foremans attorneys would have
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received a similar response from the prospective jurors of a neighboring 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 jurors 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 trialinformation which, after such prolonged exposure, overrides
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any pre-trial knowledge the jurors may have possessed. The trial judge in Meyers was upheld in his denial of the defendants 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 judges decision to overrule defense counsels 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 defendants 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 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 defendants 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 defendants attempts to characterize it as such. Over two months passed between the defendants 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 defendants 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 Foremans case, the question was not whether
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or not he had killed Ronald Silvermanbut rather, whether or not such an 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 jurys 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 Foremans pre-trial motion for a change of venue. The judges 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,
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and conspiracy. Prior to the trial, Olingers motion for a change of venue based on extensive pre-trial publicity was denied. The trial courts 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 eventextensive 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 defendants actual trialthe 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 casejust 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 Foremans case. Rather than legitimate evidence of bias, the sole evidence backing Foremans 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 biasnot a simple theory of possible biasof a juror must exist in order to dismiss that juror. Just as is the case in Olinger, however, Foremans attorneys were unable to provide such evidence. Consequently, as derived from the strikingly parallel circumstances found between Olinger and the case at barin which those of Olinger function as a much more exaggerated version of those in the case at barwe affirm that trial judge Collins was correct in his denial of Foremans pre-trial motion for a change of venue. The judges 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 pretrial bias concerning the case. Six of the jurors ultimately sworn in held

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knowledge of the aforementioned codefendants release due to insufficient evidencea 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 jurys heavy bias. In stark contrast to the circumstances of Taylor, in the case at bar, the defendants 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, Foremans involvement in the death of Silverman was not the question of his trial; rather, the jury was asked to determine whether or not Foremans 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 courts 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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defendants attorneys, as well as the record of Taylors Voir Dire as a whole indicate widespread awareness of the case. Even though the trial took place some thirty years agoan age before text messaging, cell phones, CNN, and e-mail news alertsits 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 jurors 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 jurors 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 courts 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 COUNSELS OBJECTION TO THE ADMISSION OF DEFENDANT MARCUS FOREMANS STATEMENT, I DONT KNOW. I THOUGHT HE HAD A KNIFE. I THOUGHT HE HAD A KNIFE. The second issue presented by the Appellant following the jurys finding of Defendant Marcus Foreman as guilty of first-degree murder is the incorrect admission of Foremans statement, I dont know. I thought he had a knife. I thought he had a knife, to Officer Lang. When Officer Lang included Foremans 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 Defendants 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 statements 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 counsels 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 becompelled 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 nations 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 defendants 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 dont 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 courts 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 cases distinct connection to the questioning of proper Miranda-based statement exclusion, other events in Romano surrounding the questioned statements (most notably the officers obtainment of short witness statements prior to the defendants 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 warningsThe 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 dont 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 statements 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, Defendants admission that he had struck the child and [the police officers] brief observation at the scene alone would not necessarily require an arrest 139 Ill.App.3d 999 (1985), 1012. As additional evidence of the officers preconceived understanding of the situation, the defendant pointed out the
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officers 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 witnesss testimony until after the defendants Miranda rights had been read. Similarly, in the case at bar, Officer Langs 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 crowds statement may be interpreted as indicating that the man is a victim of the shooting. The precedent established by Romano confirms Langs 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 dont 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 crowds presence can therefore not be factored in to the determination of whether or not Foremans 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, defendants 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 crowds presence is not relevant to the ultimate determination of whether or not Foremans 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 officers question. Ultimately, in both cases, the trial judge did not err and properly admitted the defendants statement as evidence. The courts decision to overrule defense counsels objection to the admission of Marcus Foremans 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 defendants 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 defendants 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 courts determination of whether or nor Berry received a fair trial were the circumstances surrounding the defendants 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 Berrys 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 Berrys favor and reversed the courts 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 selfincriminatory statements) in Berry was undeniably custodial, Foremans response to Officer Langs single question What is going on here? is not. To verify Marcus Foremans statement as an exception to Miranda, the statement must be found to be noncustodial in nature. To qualify Foremans response I dont 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 independently and hold a job at the Fresh Foods Grocer for eight years.
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Moreover, Foreman has had prior experience in communicating with lawenforcement 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 defendants 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 defendants submission of the two taped confessions in question-- all of which were not preceded by a reading of the defendants Miranda rights. By contrast, in the case at bar, Officer Lang simply asked Foreman What is
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going on here?. Foremans response, I dont 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 Foremans 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 officers 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 leaveMiranda 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 Langs question What is going on here? was solely motivated by the officers need to obtain a clearer understanding of the situation. When Officer Lang arrived on the scene of Ronald Silvermans murder, a group of Mezzaluna Tavern patrons promptly handed Foreman over to the officer with the vague explanation Here he is, Officer. At that moment, Officer Lang had no way of knowing who Marcus Foreman was.
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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 Langs 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 Berrys 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 Foremans statement as evidence. The courts 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 Smiths residence caused the death of James Henderson, the defendants 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, the trial judge denied admission of Smiths statement as evidence. At the
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suppression hearing concerning the statements 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 judges decision to suppress the statement was affirmed. On the morning of Smiths 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 defendants 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. The rule in Illinois states,
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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 defendants 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, Foremans 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 Langs question on the night of Silvermans murder, the defendant responded, I dont know. I thought he had a knife. I thought he had a knife. During Foremans aforementioned session with his own defense
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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 dont 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 defendants 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 pages in length-- was fraught with numerous grammatical errors, misspellings, and rambling statements-- elements highly uncharacteristic of an individual with Smiths level of education. In the instance of the case at bar, however, Marcus Foremans statement, I dont know. I thought he had a knife. I thought he had a knife, demonstrates a degree of intelligence appropriate for a 25-yearold male employed in a grocery store. While the statements vocabulary is arguably basic, it is not fraught with the apparent ramblings and grammatical fallacies found in Smiths. Moreover, unlike the 6-page self-incriminatory
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written testimony provided by the defendant in Smith, Foremans statement is brief (three short, succinct sentences long) and does not reveal substantial information concerning his involvement in the victims murder. Perhaps most importantly, while not one of the statements Smith made on her twelvehour-long day of questioning was preceded by a reading of the defendants Miranda rights, Foremans rights were immediately read following his response to the officers question. Finally, in determining whether or not Foremans 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 defendants submission of a 6-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 stationThe evidence tends to suggest that the defendant became the focus of the officers 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 to the cited case, Officer Lang did not ask Foreman to provide any sort of

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statement-- oral or written. The sole purpose of Officer Langs 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 Foremans first response, had there been one. Regardless of Langs 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 counsels objection to the admission of defendant Mervi Smiths 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 counsels objection to the admission of Foremans statement, I dont know. I thought he had a knife. I thought he had a knife. The judges decision to overrule defense counsels objection to Marcus Foremans statement is upheld by the courts ruling in the case of People of the State of Illinois v. Clarence A. Kennedy, 66 Ill.App.3d 267,
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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 Boyer and Judge. Accordingly, section 114-11 is not applicable in this instance. People v. Kennedy, 66 Ill.App.3d 267 (1978), 277.
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In the case at bar, attorneys for defendant Marcus Foreman filed a pretrial 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 trials 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 States proof of the defendants guilt was supported by competent and persuasive circumstantial evidence which not only established possession of the murder weapon, but established the defendants 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 defendants Miranda warnings, this fact in no way affects what is perhaps the most important aspect surrounding the statements proper admission into the trial. As was the case in People v. Kennedy, the admission of Foremans statement into the trial facts bore no weight whatsoever on the trials ultimate outcome. In fact, Mr. Foreman repeated
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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 dont know. I thought he had a knife. I thought he had a knife. In his sworn testimony, Foreman states, I dont know. I thought he had [a knife]. Whether or not Foremans pre-Miranda statement had been admitted into the trial facts, the jury would have regardless been informed of the defendants belief that his victim was in possession of a knife. To all intents and purposes, Foremans statement helps, rather than hinders, his case. The central question of Foremans 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 defendants 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 the case at bar, the precedent established by Kennedy is applicable
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verification of the trial judges accuracy in admitting the defendants statement in the case at bar. Therefore, because Foremans statement was properly admitted into the trial court as evidence, and that defense counsels Miranda objection was appropriately denied, based on the rule of law, evidence, and precedents established by previous cases, the court should affirm the trial courts 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

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