No. 2--04--1030 filed: 11/20/06

______________________________________________________________________________ IN THE AP PE LLATE COU RT OF ILLIN OIS SECOND DI STRICT

______________________________________________________________________________ THE PEOPLE OF THE STATE ) Appeal f rom the Cir

cuit Court OF ILLINO IS, ) of Ka ne Co un ty. ) Plaintiff-Appellee, ) ) v. ) No. 03--CF--866 ) DERRON M. JOHNSON, ) Honorab le ) Timothy Q. Sheldon, Defend ant-App ellant. ) Judge , Pres idin g.

______________________________________________________________________________ JUSTICE GIL LERAN JOHNSON de livered

the opinion of the c ourt: Following a jury trial, the defendant, Derron

Johnson, was convicted of first-degree murder (720 IL CS 5/9--1( a)(2) (

West 2002) ) and sen

tenced t o 27 y ears'imp risonment. On appeal, the defenda nt argu es that (1 ) the tria

l court e rred in d eny ing his motion to quash his arrest due to lack of probable cause; (2) his trial counsel was ineffective for not seeking to quash his arrest for

being inviolation of Payton

v. New Yor

k , 445 U.S. 573, 585, 63 L. Ed. 2d 639, 650, 100 S. Ct. 1371, 1379-80 (1980) ; and (3) the tr ia l c ou rt er re d i n n ot su pp re ss in g h is st at em en t a s b ei ng in vo lu nt ar y. We affir m. I. BACKGROUND OnMay 21, 2003, the defendant was charge d by indictment with the first-deg ree murder of John Szilage (720 IL CS 5/9--1(a)(2) (West 2002)) and the concea lment of Szil age' s death ( 720 I LCS 5/9--3.1(a) (West 2002)). T he indi ctmen t all eged th at the defend ant st ruck an d kil led S zila ge sometime between November 30, 2002, and April 14, 2003, knowing that such a n act created aNo. 2--04--1030

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strong probabil ity o f grea t bodily harm. The

indictmen

t further allege d that th e offense was
ac co mp an ie d b y ex ce pt io na ll y br ut al or he in ou s b eh av io r i nd ic at iv e o f w an to n c ru el ty. OnJuly 8, 2003, the defendant filed a motion to quash his arrest, arguing that the police had neither a warra nt, exige nt circu mstance s, nor pro

bable ca use to arrest him. On August 20, 2003, the trial court conducted a hearing on the defendant's motion. Prior to the hearing, the par ties stipulated that on April 15, 2003, at about 9:30 a.m., Officer Greg Spayth of the

Aurora police department went to the defendant's house, with a picture of the defen dant. He did not hav e a war

rant. Upon seeing the defendant through the front scree n door, Officer Spay

th asked him if he was "Derron." Af ter the defenda nt indica ted that h e was, Of

ficer Sp ay

th enter ed the hou se and ar

rested h im. At the hearing, Aurora police off icer Ro bert Wallers testified that the victim's body was found in a garbage ca

n behind a garage a

t 122 North Blackhaw

k Str eet on April 14, 2003. The victim had been placed i n the ga rbage can hea dfirst. T he victim' s father

had reported hisson missing
on February

6, 2003. The victim was 22 yea rs old, was 5 feet 9 inches tal l, and we ighed 2 00 pounds. The victim lived at the Blackhawk Street address, with Andrew Proc tor and James Thompson. Thompson told the police that Proctor was a friend of the defenda nt. Thompson indicated that the victim did not like the defendant because the defenda ntwas black. Officer Wallers also learned from another acquaintance of Proctor' s that Proctor and the victim had problems. Officer Wallers te stified th at Proctor was bro ught in for questioning on April 15 , 2003, at 2
a.m. Officer Wallers indicated that Proctor was a suspect in the victim's murder. At 4:25 a.m., Proctor gave a st ateme nt th at im plica ted th e defen dant i n the v icti m's murder. This statement was videotaped. Proctor indicated that the victim was a Vice L ord and that the defendant was a Gangster Disciple. The victim and the defendant would frequently "disrespect" each other
.No. 2--04--1030

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Proctor further indicate d that, on D ecembe r 8, 2002, the vic tim was doing laundry in the b asemento f his house. When the victim went upstairs, the defendant hit him in the head with a basebal l bat. Afte

r the vic tim fell do wn the sta irs, the d efenda nt followe d him

and conti nued to hit him with the

bat about 6 to 12 times
. The def

endan t then procee ded to stuff a sock in th e vict im's mouth and used a broomstick

to suffocate him. After the victim died, Proctor assisted the defendant in putting the victim's body in a garbage ca

n. The victim's body was put in headfirs t, and clothe s were put on top of it. Proctor and the defendant then moved the g arbage can behind the g arage. After he had finished interviewing Proct or , Officer Wallers contacted Office r Spayth and instructed him to pick u

p the def endant. O fficer

Spay ththencame in from his residence to the police station and picked up a picture of the defendant. Officer Wallers informed Officer Spay th that he wanted the police to set up surveillance at the defenda nt's house. Nancy Rodarte, a juvenil e investigator with the Aurora police department, testified a s to her previous contacts with Proctor and the defendant. She testified that she had previously investiga

ted
a forgery case involving the defendant and Proctor. I n that case, on October 25, 2002, the defendant had tried to cash a check that he had forg ed. Proctor had stolen that check from Thompson and given it to the defendant. Also on October 25, 2002, R

odarte testifie d, she ha

d investig ated a se

parate case involving the d efend ant an d Proc tor re gardin g a theft that h ad occu rred at the ho use of Proct or's father. Rodarte testified that she assisted Officer Wallers in interviewing Proctor on April 15. At the clo se of the

hearing , the tria

l court de termined that the p olice ha

d probab le cause

to arrest the defendant. Rely

ing on People v. House , 141 Ill. 2d 323 (1990), and People v. James , 118 Ill
. 2d 214 (1987), the trial court found that because Proctor had implicate d himsel f as bein g involved in the vic tim's mur

der, hisstate ment w as rel iable . The t rial c ourt a lso fo und t hat P rocto r'sNo. 2--04--1030

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statement was consistent

with what the police had learned through their investig ation. Ad di ti on al ly, the trial court found

that Proctor's statements were reliable bec ause the police were aware that the defendant and Proctor had previously c ommitted crimes together. Based on all these fa ctors , the trial cou rt denie d the def

endant' s motion to qu

ash his ar rest. OnOctober

16, 2003, t

he tria l court conducted a

hearing on the def

endant' s motion to suppress his statement. Officer Spay th testified that, on April 15, 2003, he went to th e defen dant's house, with

the defenda

nt's pic ture. While

conducti ng surv eillance , he obse

rved the defenda nt walk onto the front porch. The defendant walked back into the house after spending a couple of minutes
on the telephone. Officer Spay th then coordinated with the other officers present a nd approached the defendant's house. Officer Spay thknocked on the front

door. As he knocked, he observed the defe ndant sitting
on the cou ch about f

ive fee t inside the

door. He

asked the

defenda nt if he wa s "Derr

on," and th e defendant indicated that he was. Officer Spay th then opened the door, walke d in, and took the defendant into custody. This occurre d at approximately 9:30 to 9:35 a.m. Officer S payth further indicated that the defendant's mother was pre sent when he entered the house. Officer Spayth, along w

ith another detective, then transport edthe defendant to the police station. Lieutenant Powell transported the def endant's mother to the station, in a separate car
. At 10:30 a.m., the

defenda nt was re ad his Miranda

rights. Officer

Harold Carter, a juvenile officer, wa s present to read the ri ghts and confirm that the defendant could rea d and write English. The defenda nt and his mother bot

h signed a form wa

iving the defenda nt's rig hts. After the defendant

had waived

his Miranda

rights, Office

r Spay th bega n question

ing him. Officer Spayth told the defendant that Proctor had indicated

that the defendant was involved in theNo. 2--04--1030

1 The defendant made his statement prior to the effe ctive date of section 5--401.5 of the JuvenileCourt Act of 198 7 (7 05 IL CS 405/5-- 401.5 (Wes t 2004)), which re quires th e elect ronic recording of statemen ts that minors under

the age of 17 make

during c ustodial in

terrog ations, un

less certain ex ce pt io ns ap pl y. The defendant's statement was also made before section 103--2.1 of the Code of Criminal Procedure of 1963 (725 ILCS 5/103-- 2.1 (West 2004)) be came ef fective . This sectionprovides that statements that one accused of first-deg ree murd er ma

kes during a custodial interrogation

shall be presumed

to be inad

missible un

less an e lectron

ic recordin g is made of the interrogation. 725 IL

CS 5/103--2.1(b)(1) (West 2004). -5- victi m's murder. The defendant denied any involvement

in the murder. Officer Spay th indicated that other people had implicated the defendant in the victim's death. He also told the defendant that the police had his fingerprints and physical evidence implicating him. On cross-examination, Officer Spayth acknowledg ed

that, in fa

ct, no one else had implicate d the def

endant in the murder and the police did not yet have a

ny finge rprints or physical evide

nce connecting him to the crime. Officer Spayth left

the room and then

returned with a television, videocassette recorde r, and videotape. The def

endant c ontinued t

o deny any

involvement in the victim's murder. Office r Spay th thenplayed the pa

rt of Proctor's recorded statement indicating that

the defe ndant had hit the victim
on the head. The defendant indicated that Proctor wa s lying. At about 10:55 a.m., the questioning stopped at the request of the defenda nt's moth er. The

n, from 11 :05 a.m. to

12:05 p.m., the defendant made a statement

explaining his involvement in the victim's murder. After ma

king his s tatement , the defe ndant wa s informe d that he c ould be charged as an adu lt. 1 Officer Spayth testified that he

resumed questioning of the defendant at 6:45 p.m. A juve nile officer showed the defendant the Miranda form and told him that he c ould still in

voke those

rights.No. 2--04--1030

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The questioning stopped at 7:10 p.m. at the request of the defendant' s mother. At 7:17 p.m., the questioning resumed. The defendant' s mother stopped the questioning at 7:25 p.m. and requested a lawye r. Tiffany Johnson testified that she was the de fendan t's mother. She was with the defendant when he was being interrogate d. She stopped the first inte rview for 10 minutes to talk to the defendant alone so that

she could "ask him what was going on, bec ause [she] didn't know what was goingon." During the second in terview , in the ev ening, she also r equeste d a short break to t alk with he rson. Shor tly after the police resumed questioning, the defendant's mother requested that the interviewbe stopped, and she also requested to have a lawy er. At this point, a

ll questioning stopped. She estima

ted that the second

intervie w lasted 3 0 minutes. OnNovembe

r 12, 2003 , the tria

l court de

nied the d

efenda nt's motion to suppre ss his sta tement. The trial court found that the defendant made his statement fre ely, voluntari ly , intelligently, and without compulsion or induceme nt of any kind. Prior to trial, t

he State nol-prossed count II of the indictment, which alleged that the defendant had concealed the victim's homicide. Between May 17 and May 20, 2004, the trial court conducted

a jury trial on th e charg e of murd er. The State ar gued th at the de fendant

was gui lty of first-degree murder on an a ccountability theory
. Thom pson testifie d that he owned the house at 1 22 North B lackhaw k. The victi m move d inwith him on September 1, 2002. Proctor moved in with him on September 17, 2002. Thompson explained that he had

known Proc

tor since Proctor w as a

young chil d. He w as a fri end of Proct or's fa mi ly. Proctor

moved in with him bec ause Proc tor's f amily thought i t might he lp Proctor w

ith some of the school and other problems that Proctor was having. Proctor ha d his own bedr oo m in Thomp son's house, while the victim slept on a couch. Thompson last saw the victim on ab ou tNo. 2--04--1030

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November

30, 2002. Thompson saw Proctor w iththe defendant frequently , and he was aware that they were friends. Proctor m ove d out of the house around April 1, 2003. On April 14, 2003, Thompson discovered at the back of his house a human foot protruding from a garbage can. He then immediately called the police
. Officer Spayth testified that he arr ested the defen dant at his home at 122 Cro ss Street i

n Aurora. Juvenile Of

ficer H arold

Carter read the Miranda

rightsto the defendant. Both the defendant and his mother

acknowl edged

his righ ts and signed a waiver form. The de fendant admitted that he knewthe peopl e who live d at 122 B lackhaw k, includi ng the victim. The victim used to "get with" Proct or's sister. T

he defe ndant sta ted that he had not seen t he victim f

or a while . Office

r Spay th thentold the defendant that people had implicated him in the murder of the victim and that there was evidence including fingerprints. Officer Spay th admitted thatthese statements were untrue. Rather, the statemen

ts were a techni que to see how the de fendant

would re act. The

defenda nt continu

ed to deny his involvement in the crime. Officer Spay th then showed the d

efenda nt part of Proctor' s videota

ped state ment. After seeingthe statement, the defendant indicated that Proctor was lying. T

he defendant then

explained t hat P roctor had called him on the morning of the murder, te lling him that he wanted to kill the victim for trying

to date Proctor 's sister. After th e defen dant made

that state ment, Off icer Spa yth indicated, the de fendan t's mo ther b riefl y stopped the qu estio ning. When the questioning resumed, the defenda

nt stated t hat Proct or wante d to kill the vic

tim becau se the victimwas a Vice Lord a nd wanted to date Proctor's sister. Proctor then asked the defenda nt to come

over and help him kill the victim. The defendant and Proctor then developed a planto kill the victim. According to this plan, the defenda

nt would g o over to t

he victim' s houseand knock on the door. The victi m would co meNo. 2--04--1030

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up from the basement. When the victim answered the door, Proctor would sneak up behind him and hit him on the

head with

a bat. The defendant indicated that when he went over a nd knocked on the door, th ere was no response. Proctor then appe ared and yelled for the victim. The victim came to the door, saw the defenda nt, and turned

away . Proctor

then hit the victim

on the hea

d with a ba

t, causin g him to f all down the s tairs. Th e defen dant then stepped i nside the house . He obse

rved Proc tor follow

th e victim downstairs with the bat. He observed that the victim was at the bottom of thestairs a nd bleeding from the head. The victim appeared to be having seizur es, and hi s body was tremb ling. The defendant then stepped outside and sat on a bench, as he did not wa

nt to go down to the basement a nd deal with

the situat

ion. He r

emained outside f

or 20 to 30 m

inutes an d could occasionally he ar the victim screaming. After that time had p assed, Pr

octor ca me up and a sked the d

efenda nt to help h

im becau se he bel ievedthat the victim was almost dead. The defendant then went down to the basement a nd observed that the victim was extremely bloody from the head and

face, b ut he was not dead y

et. The defendant observed that Proctor

had fo und a s ock an d used a stic k to p ush i t down the vi ctim 's throat. After about five minutes, Proctor grabbed a hos e, put it in t he victim's mouth, and turned on the water. The victim stopped moving, and the defendant he lped Proctor clean up the area. The defendant indicated that Proctor then brought a garbage can inside. He and Proctor

then rolled the body into a curtain a

nd put it into the garbage can, hea dfirst. They piled some clothes on top of the body and dr

agged the can upstairs a

nd outside. Proctor put the garbage ca n next to the garage. Proctor and the defendant then placed a motorc ycle to block th e path to the garbage c an. Later, they ran into their fr iend Anthony. Proctor bra gged about killi

ng the victim. Off

icer Spa yth testifie d that the

tone of hi s intervie

w with the

defenda nt was conversat

ional.No. 2--04--1030

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At 12:05 p.m., Officer Spay th informed the defendant and his mot

her that he would have to remain in custody

while the police gathered more information. At about 6 :45 p.m., O fficer Spay th again talked to the defendant. At that point, the defendant repeate d that he did not actually strike the victim himself and reiterated that his previous statement was true. Anthony Jackson testified that both Proctor and the defendant told him that they had killed the victim . Jackson te stified th at he did n ot believ e them. Dr. Brya n Mitchell, a

coron er's physician for Ka ne County, perfor

med an autopsy on the victi m's body on April 15, 2003. The only injuries he observed were to the face and head. He found eight blows to the

head. Dr . Mitchell

believe d that the

injuries w ere mad

e with a blunt cylindrical object, like a ba

t, and also s omething

with an edg e, like a

two-by -four or a hammer . Dr. Mitchell opined that the victim died from multiple blunt force trauma due to an assault. Carlos Soto testified that the defend a nt told him about hearing the victim's screams when Proctor killed the victim. Th e defen

dant also told Soto where he and

Proct or had hidd en the victi m's bo dy. Alicia

Louis and Kene sha Bold

en both testified on behalf of the defense. Both testified that Proctor had admitte d killing the victim
. Edward Lesure also testified

to having heard Proctor brag about killing someone. On direct examination by defense

counsel, Lesure testified that Proc to r had stated that the defendant had particip ated in th e killing of the victim. The defendant testified on his own behalf. The defendant denied knowing that Proctor wa s going to kill the victim. The defendant also denied making a plan with Proctor to kill the victim. At the close of the tri al, the ju

ry found the

defenda nt guilty of f

irst-degree murder. After denying the defe ndant' s posttria

l motion, the

trial cou rt sente nced the defe ndant to 27 ye ars'No. 2--04--1030

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imprisonme

nt. After hi s mo tion to rec onsider s entence was deni ed, the de fendant filed a ti mely notice of appeal. II . DISCUSSION A. La ck of Prob able Cau se The defendant's first contention on appeal i s that the trial court erred in deny ing his motion to quash arrest. The defendant arg ues that his motion should hav e been g ranted b ecause

the police lacked probable cause to arrest h im. Specifically, the de fendant contends that the police did not have probable cause because the arre st was based entirely on the

unreliable and uncorroborated statement of Proctor. Inorder to effec t a valid w arrant

less arr est, a police officer must have probable cause. People
v. Sims , 192 Ill. 2d 592 , 614 (2000). Probable cause exists when the totality of the facts and circumstances known to th e offic er is such that a reasona bly prudent person would believe that the
sus p ect is committing or has committed a crime. People v. Montgomery , 112 Ill. 2d 517, 525 (1986). Mere sus

picion is inadequa

te to establish probable cause to arrest, but the evidence relied upon by the arr

esting office

r does not have to be suffi cient to prove g uilt bey ond a rea sonable d

oubt. Sims , 192 I ll. 2d at 61 4-15. Pro bable ca use ma y be b ased on a

n informa nt's tip a nd, if the facts supplied in such a

tip are essential to a finding of probable ca use, the tip must be reliable. People
v. Patterson , 2 82 Ill . A pp . 3 d 2 19 , 2 27 (1 99 6) . O ne in di ci um of re li ab il it y of information exists when the facts lear

ned through police investigation independently verify a substantial part of the infor mant's tip. People v. James , 11 8 Il l. 2d 214, 22 5 (1987). The reli ability of the inf

ormant is another factor to be considered. People v. Adams , 131 Ill. 2d 387, 397 (1989). The reliability of the infor mant's tip is enhanced if he implica tes his own invo lvement in the crime at issue. People v.No. 2--04--1030

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House , 141 Ill. 2d 323, 369-70 (1990). A trial court's finding of probable ca use is reviewed de novo . Ornelas v. United States , 517 U.S. 6 90, 698, 13 4 L. E d. 2d 911, 9 20, 116 S. Ct. 1657, 1663 (1996). Here, we believe that the st atement Proctor g ave to the police wa s suffici ently

reliable to provide the police with probable cause to arrest the defe ndant. The police knew that Proctor, the victim, and

Thompson had lived together at the same house. The police also knew that Proctor was
a fr ie nd of th e d ef en da nt an d t ha t t he y h ad pr ev io us ly c ommitted the crimes of theft and forgery together. One of these crimes had been com mitted agains t Thom pson. Furth ermor e, Pro ctor's statement placed him at

the scene of the murder and as a par ticipant in trying to conc eal the murder. Proct or's statement was also consistent with what the police had learned from the crime scene,
na me ly, that the victim's body had be en placed headfirst in a gar bage can behind a garage. B ased
on the totali

ty o f the cir

cumstanc es, the polic e had pro bable ca use to believe that the defendant had committed

a crime a nd to eff ectuate an arre st. Inso ruling, we note that the defendant raises three specific r easons why Proctor

's statement
was not reliable: (1) the police knew very little about Proctor; (2) the police be lieved tha t Proctor was the one who actually killed the victim; and (3) Proctor placed the entire blame for the mur der
on the defendant. We find each of the defe ndant's objections to be without merit. First, Proctor was
som eone withwhom the police were familiar. From information provided by juvenile officer Rodarte, the police knew that Proctor and the defendant had previously committed crimes together. The police also knew through Thompson's statements that Proctor and the de fendant eac h had a relation ship with th e victim. Second, although Officer Wallers testified that the police had information that suggested that Proctor killed the victim, this was before Proctor was questioned. This original information that theNo. 2--04--1030

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police had did no t in

and of itself undermine the reliability of the statement

that Proc tor subse quently gave to them. Third, althoug

h Proctor did not impli catehims elf in the vi ctim 's murder, he place d himself at the scene of

the crime and gave significa nt details as to how the murder occurred. He a ls o implicated

himself in

the con cealme

nt of that h

omicide. Conceal

ment of a homicide is a Class 3 felony that car ries with it a senten cing ra nge of two to five yea

rs' imprisonment. 720 IL CS 5/9--1 (West 2002); 7 30 ILC S 5/5--8- -1(a)( 6) (West 20 02). Common sense ind

icates that P rocto r's acknowledgment that

he was involved in a felony is something he would not do li gh tl y or fa ls el y. See House , 141 Ill. 2d at 369-70. As such, we find without merit the defendant's contention that Proctor's statement was not reliable. B. Ineffe ctive Assistance of Counsel 1. Failure to argue lack of e xigent circumstances The de fendan t's second contention on appeal is that he received inef fective assistance of counsel. Specifically, the de fendant argues that, because he was arr

ested wit hout a wa rrant a nd in the absence of exigent circumstances, his counsel wa s ineffective for not seeking to quash hi s arres t
on those grounds. The defendant further argues that his counsel was ineffec tive at trial for eliciting testimony from a witness implicating him in the victim's murde r. I n order to

succee d on a cla

im of inef

fective assistanc e of tria

l counsel , a defe

ndant must satisfy the two-pronge d test set f orth in Strickland v. Washington , 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052 (1984). People v. Enis , 194 Ill. 2 d 361, 376- 77 (2000) . The def endant mu st establish both that c ounsel' s repre sentation fellbelow an objective standard of reasonableness and that there is a reaso nable probability that, but for c ounsel's errors, the outcome of the proce eding would have been different. People v. Little , 335 Ill. App. 3d 1046, 1052 (2003). A reviewing courtNo. 2--04--1030

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may dispose of an ineffectiveness claim on the prejudice pr ong alone by d etermi ning that the defendant was not prejudiced by counsel' s representation. People v. Munson , 171 Ill. 2d 158, 184 (1996). T he phy sical e ntry of the home is the chief evi l again st which th e fourth amendme

nt is directed. Payton v. New York , 445 U.S. 573, 585, 63 L. Ed. 2d 639, 650, 100 S. Ct. 1371, 1379-80 (1980). "Absen

t exigent circumst ances, t hat thre shold may

not reas onably

be cross ed withou

t a warrant." Payton , 445 U.S. at 590, 63 L. Ed. 2d at 653, 100 S. Ct. at 13 82. The State bears the burden of demonstrating an exigent need for a wa rrantless search or arrest. People v. Foskey , 136 Ill. 2d 66, 75 ( 1990). Whe re the f acts and the cre dibility

of the wit

nesses are undisputed, the question of

whether exigent circumstances are pr esent is a question

of law, subject to consideration by t his court de novo . People v. McNeal , 175 Ill. 2d 335, 345 (1997). Alth ough each ca se must be decided on its own f

acts, the Illino is Supreme Court has recognized

the following factors as relevant to a d etermination of exigency in circumstances involving a warrantless entry into a private residence to effectuate an arrest: (1) whether the

crime
was co mmitted rec ently; (2) whethe r there was any

deliberate or unjustified delay by the police during whichtime awarran t could ha ve been obtained ; (3) whe

ther the crime wa s grave

or violen t; (4) whether there was a reasona ble belief that the suspect was armed; (5) whether the pol ic e were acting o n a clear showing of probable c ause; (6) whether there was a likelihood that the suspec t would escape if he was not

swiftly apprehended; (7) whether there was strong reason to believe that the suspect was on the premises; and (8) whether the police e ntry was made

peaceably , albeit without consent. McNeal , 175 Ill. 2d at 345. No li st of factors bea ring on e xigent ci rcumstan ces is exhausti ve, and these

factors are merely

guidelines rather than the cardinal maxims to be applied rigidly in each case. McNeal , 175 I ll. 2d at 345 . A court must consider the totality of theNo. 2--04--1030

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circumstances confronting the police at the time they entered the home and determine whether they acted reasonably
. McNeal , 175 Ill. 2d at 345-46. These c ircumsta nces must militate a gainst delay and justify the office

rs' decision to proceed without a warra nt. McNeal , 175 Ill. 2d at 346. The balance of these factors suppo rts t he pol ice con duct h ere. Fi rst, w e note that t he vic tim's murder had been recently

discovered. On Apri l 14, 2003, the victim's body had be en found in a garbage can. At 4:25 a.m. onApril 15, 2 003, an a cquainta nce of th e defen

dant's i mplicate d him in the victim's murder. Although it had been over four months since the victim had been murdered, the police had learned only

hours before arresting the def endant that

the murder had occurred and that the defendant may

have been involved. The law is clear that "[e]xigent circumstances may arise *** notonly immediate ly a

fte r the p erpetration of the crime, but also when additional facts justify immediate

action." People v. C obb , 97 Ill. 2d 465, 486 (1983) (while the arr est of the defendant occurred three we eks afte

r the cr imes, it was within

minutes after the police received new mate rial informationestablishing probable cause to believe that the defenda nt committedthe offenses); see also People v. Williams , 315 I ll. App. 3d 22 , 39 (2000 ) (findin g that th is factor was satis fied bec ause police made arrest within four hours after obtaining pr obable cause, even though crime ha d occurred five days e arlier). Thus, we find that this factor weighs in fa vor of the State. Second, there was no delibera te or unju sti fied delay by the officers during which time a warrant could have been obtained. Short ly after P rocto r impl icate d the d efenda nt in the vi ctim 's murder, the police le ft the station to arrest the defendant. "As the time betwee n when the police formulat e probable cause and when the defe ndan t is arre st ed grows longer, the ' exigency' of the situatio n is certain ly diminished. " People v. Smith , 152 Ill. 2d 229, 249 (1992). Third, the crime here was both violent and gra ve. The victim was struck inthe head with a basebal l bat 6 to 12 t

imes. He was knock

ed down a

flight o f stairs. A sock wa s then stuck in hisNo. 2--04--1030

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mouth, and

he was suffocat

ed with a broom. A ru

nning ho se was the

n put in his mo

uth and left there until it was apparent that he had died. Fourth, there is nothing in the record to sugg est that the police had reason to believe that the defendant was armed. Nonetheless, even if the office rs did not have r easo n to believe that the defendant was armed, they

still had reason to believe that he was violent. See Peoplev. Sakalas , 85 Ill. App. 3d

59, 66 (1980) (exigent circumstances existed partly because the officersknew that the defendant had used a pipe to violently beat the victim, even though they had no reason

to believe that he was armed when arrested)
. Fifth, the police had prob able cause to arrest the defendant. The police knew that the defenda nt had a pr

ior rela tionship wi

th the vic tim and with

Proctor. The police knew that Proctor and the defendant had previously committed crimes together. Proctor implicated the defenda ntin the victim's murd er and gav e the police details of the murder that were consistent with what the police had already

discovered

in their investigation. Proctor also implicated himself in the attempt to conceal the homicide. Sixth, we believe that there was a reasonable likelihood that the defendant would flee if not swiftly apprehended. We believ e that the seriousness of the

crime at issue is re levant to

the anal ysi s of this fact or. The p enalty

for murd er, as o pposed to a lesser c

rime, ca nnot be ov erlooke d as a motive for flight. Conscientious police officers also would nothave ignored the likelihood that the d efendant would learn that the victim's body had been discovered and that the police we r e interviewingProctor. See Cobb , 97 Ill. 2d at 486 (the fact that an accomplice was arreste d gave

rise to the possib ility

that the d

efenda nt would be

alerted to the ac complice 's in

t errogation, giving the defendant the incentive to either flee or prevent his peac eful arrest); see also Peoplev. Hoddenbach , 169 Ill. App. 3d 499, 505 (1988) (police could re asonably have considered the pos sib ility that theNo. 2--04--1030

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defendant was aware that another person involved inthe crime had spoken with the police, thereby causing the defendant to flee the a rea). As to the seventh and e ighth fa ctors, the police had strong reason to believe tha t the defendant wa s o n t he pr em is es . T he po li ce , s ho rt ly after in te rviewi ng Proctor, placed the defend ant's house under surveillance and in fact had observed the defendant in the house. The police ent ry was also made peaceably . The defendant stipulated that Officer Spay th came to his door
. Uponseeing him, Officer Spay th asked him if he was "Derron." After the defendant indicated that h e was, Officer Spay

th entered the house and arrested him. We conclude that the a rrest of the defendant was "reasonable" in light of the exigen t circums ta nces. Thus, the defendant was not arrested in violation of the f

ourth ame ndment. B ecause

exigent circumstances existed, the defendant did not r eceive inef

fective assistanc e of coun sel by

trial cou nsel's f ailure to raise thi s issue in h

is motion to quash arrest. See Munson , 171 Ill. 2d at 184. Inso ruling, we find the defendant's r eliance on Peoplev. White , 117 I ll. 2d 194 ( 1987), to be unpersuasive . In tha

t case, the supreme court affirmed the tria l court's decision that exigent circumstances were not present to justify the murde

r suspect's war

rantless arrest i n his home. White , 117 Ill. 2d at 217, 228. In White , nearly two weeks had ela

psed sinc e the mur

ders, the police had probable cause shortly a

fter the ki llin gs to believe that the defendant was involved, and after learning of the defendant's possible residence, they still did not pursue him for an a dditional three da ys. White , 117 Ill. 2d at 217-18. Conversely, in the instant case, the police placed t he defe ndant' s house under surveillance shortly a

fter learning that he may

have been involved in the victim's murder, and they arreste d him a

few hours thereafter. Unlike in White , there i s no indica tion in the record that the police delayed at all in searching for the defendant after they had prob able ca

use to ar rest him. 2. Ineffective E

xamination of Edward LesureNo. 2--04--1030

-17-

We next address the de fend ant's contention that his counsel was ineffective for eliciting testimony from Lesure that the def endant assisted Proctor in killing the victim. The defendant contends that suchtestimony could not have been elicited as a matter of trial strate gy, be cause there
was little other ev idence connecting him to the crime. The defendant f urther argues that the testimony was prejudi cial becaus e it was improper hearsay testimony that could not be tested by cross-examination. During defense counsel' s cross-examination of Lesure, the following colloquy ensued: "Q. Let's g et back to what Proctor said. Did Proctor ever say in your presenc e how he ki ll ed th e g uy? A. No. Tha

t was all r umors. Q. Ok ay. Di d P ro ct or ev er sa y th at [t he de fe nd an t] he lp ed hi m k il l t he gu y? A. Let me--yeah, he did say that." We agree with the defendant that the c r o ss-examination of Lesure was inappropr iate. Nonethe less, we do not believe that this testimony was sufficiently prejudicial to warrant reversal inlight of the other evidence that established the defe ndant's guilt. See Peop le v. Pizano , 347 I ll. App. 3d 128, 140-41 (2004). As will be explained below, the defend ant's statement to Officer Spayth was proper

ly admitted. I

n that statement, the defendant acknowledged

that he and Proctor had come up witha plan t o kil l the v icti m and t hat he in fact assis ted in that p lan. T hus, Les ure's testimony at issue w as only

cumulativ e to th e defen dant's own incrim

inating statemen

ts. Accord ingly , the def

endant is not entitle d to relie f on this ground. See Pizano , 347 Ill. App. 3d at 140-41 (even though defense counsel e licited incrimina

ting tes timony

from the d

efenda nt, defense counsel was not

ineffe ctiv e because testimony was not prejudicial in light of the overwhelming evidence that established the defendant' s guilt).No. 2--04--1030

-18-

Furthermore, we note that defense cou nse l generally

provided adequate representation for the defendant throughout the proceeding s. Defense counsel filed numerous pretrial motions seeking to suppress certain evidence ag ainst the defendant. Defense counsel also was well prepar ed for trial,
as demo nstra

ted b y h is mea ning ful c ross- exami

nation of the Sta

te' s most impor tant w itnes ses. We theref ore do no t believe

that the d

efenda nt rece ived the i

neffective assis tance of

trial cou nsel. C. Motion to Suppress Defendant's Statement The defendant's final contention on appeal is that the trial court erred in deny ing his motion to suppress his statement. Specifically, the defendant argues that his statement was involuntary because it was the result of police trickery . The defendant further contendsthat the to tality of the ci rc um st an ce s s ur ro un di ng hi s s ta te me nt de mo ns tr at es th at it wa s n ot gi ve n v ol un ta ri ly. Admitting an involuntary conf ession i nto evidence violates the f ifth amendment to the United States Constitution

(U.S. Co nst ., a men d. V ) an d ar ti cle I, section 10, of the Illinois Constitution of 1970 (Ill. Const. 1970, art. I , §10). People v. Nicholas , 218 Ill. 2d 104, 118 (2005). A confession is voluntar

y if it is the product of free will, rather than the product of the inherently coe

rcive atmosp here of the pol ice station. People v. Willis , 215 Ill. 2d 517, 535 (2005). To determine whether the defendant's confession was voluntary , we consider the totality of the circumstanc es surrounding it, i nclud ing th e defen dant's age , i ntelligence, education, experience, and phy sical condition at the time

of the de

tention a nd interr ogation ; the dura

tion of the

interrogati o n; the presence of Miranda

warnings; the pre sence of any phy sical or mental abuse; and the legality and durationof the detention. Nicholas , 218 Ill. 2d at 118. Where a juvenile is concer ned, additional factors to consider include the time of day when the questioning occurred and whe ther a parent or other adult concer ned ab out t he juv enile 's welf are was presen t duri ng ques tion ing. Peo ple v.No. 2--04--1030

-19-

Gonzalez , 351 Ill. App. 3d 192, 201 (2004). No one factor is dispositive. People v. Pogue , 312 I ll. App. 3d 719, 727 (1999). This court re

views the trial cou rt's fa ct deter minations f

or manife st

error, and we review de
novo its ultimate decision on the motion to suppress. Nicholas , 218 Ill. 2d at 116. At the time of

his questioning, the defendant was 16 y ears old. The trial court

found that the defendant was of average intelligence , did not have any mental disabilities, and had been in special education classes. The trial court also noted that the defendant did not appea r conf used in his interactions with

the police and that he answered questions appropriate ly. The defe ndant was read his Miranda

rights. The defendant

had also had his Miranda rights r ead and explained

to him on at least two previous occasions. See Gonzalez , 351 Ill. App. 3d at 202 (finding

that the ju

venile defend ant's prior arrests and receipt of Miranda warni ngs supported determination that the defendant understood

the Miranda

rightsthat he wa s waiving inthe instant case). The defendant acknowle dged that he understood thes e right s and that he was waiving them. This acknowledgme nt was witnessed by the de fenda nt's moth er. The re is no indication

that the d

efenda nt was phy

sically or menta lly abused while in police custody . The polic e had pro bable ca use to det ain the defendant. Further, the durationof the interrogation of the defendant wa s relatively short. The de fendant was accompanied by his mother throughout the interrogation. The first interview of the defendant began

at 10:30 a.m. and lasted 85 minutes, not including a short break requested

by the defe

ndant's mother. The second interviewbegan

at 6 :45 p.m. and lasted only 33 minutes. All of these circ umstances indicate that the statement the defendant gave to the police was voluntary. See Nicholas , 218 Ill. 2d at 116. The defendant maintains that his statement was involuntary be cause it was the result of police tr ic ke ry. The defendant argues that the police tricked him into giving his statement by ly ing that (1)No. 2--04--1030

-20-

"sever al" peopl e had i mpli cated h im in the vi ctim 's murder and (2) his fingerprints had been found on the murder weapon. Officer Spayth acknowledg ed

that he was not truthful with the defendant when he indicated that "sever al" people had implicated

him in the victim's murder. In fac t, only Proctor had implicated the defenda

nt. We do not

condone Office r Spay th's com ment. How ever, th ere is no indicationthat Officer Spayth's comment tric

ked the defendant into making a statem ent. After O fficer Spayth's comment, the defe

ndant con tinued todeny his involvement in the victim's dea th. The defenda

nt did notadmit any involvement until after he saw Proctor's videotaped statement. Thus, we cannot find that the de f endant's statement was involuntary . See People v. Martin , 102 Ill. 2d 412, 427 (1984) (explaining that police deception does not invalidate a confession as a matter of law but rathe r is only one factor to consider when making a determination of voluntariness). We also find that Officer Spay th misledthe defendant

when h e told him t hat th e defen dant's finger prints had been found on

the baseball bat. At the suppression hearing, Off icer Spayth testified as follow s: "Q. Now, also at that point did you tell hi m that you ha d fingerprints and other evidenc e on the sc ene that were imp licating

him? A. I said there was the f ingerprint evidence, an d the other evidence on the scene would be i

mplicatin g him, tha t we knew

that he wa s there, is what I told him. Q. Okay . Did y

ou tell him t

hat the f ingerprints and other

evidence on the scene were telling you that as we ll, that he was involved? A. Correct." At trial, Officer Spay

th testified:No. 2--04--1030

-21- "I had exp lained to

him, y ou know, there is e

vidence on the sce

ne, ther e is finger prints on the scen e that are showing us that y ou were there, t hat, y ou know what is going on here. * * * Isaid, listen, the fingerprints aregoing--there is going to be fingerprints on the bat." The record reveals that

no finge rprints had been recovered at the time Off icer Spayth made thesecomments. However, even after O fficer

Spay th made th e commen

ts, the defendant continued to deny his involvement in the murder. Beca use the defendant did not make any inculpatory statemen ts due to Of

ficer Sp ay th's com ments, this

is not a sufficient basis to suppress the defend ant's statemen t. The defendant also raises severa l other a rgumen ts as to wh y hi s s ta te me nt wa s i nv ol un ta ry. Specifica ll y, the defe

ndant con

tends tha t his state

ment was i

nvoluntar y be cause ( 1) during

his statemen t, there w as not a neutral juvenile officer present at a ll times; (2) the police did not share with him exculpatory evidence tha tsuggested he was not responsible for the victim's murder; (3) he
was not infor

med that h e could be

tried as a

n adult unt

il after he had a lready

given p art of his statemen t; (4) he was not allowed

to speak with his mother before the questioning bega n ; (5) there
was no evidence that he was offered f ood or beverages during

the interviews ; and

(6) his statement was never reduced to writing. The defendant argues that his statement was involuntary beca use the juvenile officers did not properl y perform their roles during the interrogation. The def endant c ontends that Offic er Carte r did notproperly pe

rform his role in the first interview, because he said and did not hing to protect

the defendant when Office r Spay th"lied." The defendant furthe r contends that Officer Wallers did notNo. 2--04--1030

-22-

properl y perfor m his role d

uring th e second

intervie w, beca use he " may

have que stio ned " the defendant during that interview. The Juvenile Court Act of 1987 requires that a parent or a guardian

and a juvenile officer are to be notified when a minor is taken into custody . 705 IL CS 405/2--6(a) (West 2004). There is no requirement

that a juvenile officer be present when a minor is q

uestione d, althoug

h it is a significant factor in the totality of the circumstance s analysis. People v. Griff in , 3 27 Ill. App. 3d 538, 547 (2002). Ulti mately , in determining whether a juvenile defenda nt's statement is reliable and admissible, the court should cons ider whet her the defendant had an opportunity to confer with an interested adult, either a parent or

a juvenile officer. People v. Montanez , 273 Ill. App. 3d 844, 854 (1995). We do not believe that the conduct of either juvenile officer dur ing the interrogation of

the defendant was i mprop er. We

also note that the defendant's mother was present during the interviews and that the defendant was able to confer with her throughout

tho se int erview s. The defend ant's contentionis therefore without merit. See Montanez , 273 Ill. App. 3d at 854; see also In re R.T. , 313 Ill. App. 3d 422, 429 (2000) (whether a juvenil e suspect is able to confer with a parent is a material factor in determining whether the suspect's statement is voluntary)
. The defendant next contends that his statement was involuntary because the police did

not share exculpatory evidence with him. Relying on In re L ashun H. , 284 Ill. App. 3d 545, 556 (1996), the defendant argues that the failure of the office

rs to shar e such inf ormation i s a fact

or to take into consideration

as to the voluntariness of his statement. We agree that this is a valid factor to c onsider. It is e vident, however, that the police were questioning the defenda nt based on the statements that they had rec eived fr

om Proctor . A main thr ust of the ir questioning the refore was whether theNo. 2--04--1030

-23-

defendant was able to refute Proctor's alleg ations of murde r. The po lice wer

e also acting

quickly to solve a murder that had been discovered only one day e arlier. Ne xt, we find without merit the defendant's arg ument that his statement was involuntary because he was no t informe d that he c ould be tr ied as an adult until

after h e had g iv en part of h is statement
. It is w ell s et tled that the police had no obligation to share this information with the defenda nt. See People v. Prude , 66 Ill. 2d 470, 476 (1977) (explaining that a juvenile's incriminating statement is not rendered in

voluntar y si mply because the polic e did not te ll the juve nile that he could be tried as an

adult); People v. Brown , 301 Ill. App. 3d 995, 100 3 (1998) ( explaining that a juv enile suspect does not have the right to be informed of the specific criminal offense or potential criminal offenses for which he may be charged when questioned by the police). We also find

without merit the defendant's contention that his statement was involuntary because he was not

allowed to consult with his mother before he was interviewed. There is no per
se rule that a juvenile must be afforded the opportunity to consult with a parent or othe r concerned adult before being interviewed by police. See In re G.O. , 191 Ill. 2d 37, 55 (2000). Moreover, the record reveals that the defendant was provided ampl e opportu nities to c onsult with

his mother. The defend ant's mother wa s a t home when the defendant was arrested. She w as present when he was informed of his Miranda

rights, and she signed a form that ac knowledged h e was waiving those rights. The defendant's mother wa s with him throughout the interrogations. The defendant is also not entitled to any r elief based on

his claim that there was no proof that he was ever offered food or dr ink during the interviews. See G.O. , 191 Ill. 2d a t 54 (f actor to consider as to whether defendant's statement wa s voluntary was whe ther he was give n food or beverages or wheth er he wa s allowed to use a bathro om during questioni ng). F irst, the interviews at issue herein w ere re latively short. The first interview, in which the defendant ga ve his inculpatoryNo. 2--04--1030

-24-

statemen t, began at 10:30 a .m. and lasted only 85 minutes. The second inter view lasted only 33 minutes. There is no indication that hun ger or duress was a contributing factor in the de fendant making h is stateme nt. Fi na ll y, the defendant is also not entitled to any relief

based on his claim that his statement
was notreduced to writing. This is but one factor to consider in determining whether the d efenda nt's statement was voluntary. See In re J.J.C. , 294 Ill. App. 3d 227 , 236 (1998). In considering the totality of the circumstances, including the defenda nt's previous experience with the criminal justice sys tem, his ability

to unders tand his Miranda ri gh ts , a nd hi s b ei ng ac co mp an ie d b y his mothe r throughout

the interrogation, it is apparent that the defenda nt's statement was made freely and withoutcomp ulsion. See Pe ople v. McDaniel , 326 Ill. App. 3d 771, 781 (2001). The trial court theref ore did no t err in de

nyi ng the d efenda nt's motion to suppre ss his state ment. III. CONCL

USION Fo r t he fo re go in g r ea so ns , w e a ff ir m t he ju dg me nt of

th e c ir cu it co ur t o f K an e C ou nt y. Affirmed. BOWMAN and O'MAL

LEY, JJ., concur.