                                     2019 IL App (1st) 162341


                                                                               FIRST DISTRICT
                                                                               SIXTH DIVISION
                                                                                October 18, 2019


                                           No. 1-16-2341

THE PEOPLE OF THE STATE OF ILLINOIS,                          )   Appeal from the
                                                              )   Circuit Court of
          Plaintiff-Appellee,                                 )   Cook County.
                                                              )
     v.                                                       )   No. 15 CR 5903
                                                              )
WALTER ROSS,                                                  )   Honorable
                                                              )   Michael B. McHale,
          Defendant-Appellant.                                )   Judge, presiding.

          JUSTICE HARRIS delivered the judgment of the court, with opinion.
          Presiding Justice Mikva and Justice Connors concurred in the judgment and opinion.

                                            OPINION

¶1        Following a bench trial, defendant Walter Ross was convicted of being an armed habitual

criminal (720 ILCS 5/24-1.7(a) (West 2014)) and sentenced to seven years’ imprisonment. On

appeal, defendant argues that his conviction should be reversed and remanded for a suppression

hearing, because his trial counsel was ineffective for failing to reinstate a motion to suppress

defendant’s statement to the police. For the following reasons, we affirm.

¶2                                        JURISDICTION

¶3        Defendant was sentenced on July 29, 2016. He filed his notice of appeal on the same day.

Accordingly, this court has jurisdiction pursuant to article VI, section 6, of the Illinois

Constitution (Ill. Const. 1970, art. VI, § 6) and Illinois Supreme Court Rules 603 (eff. Feb. 6,
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2013) and 606 (eff. Dec. 11, 2014), governing appeals from a final judgment of conviction in a

criminal case entered below.

¶4                                      BACKGROUND

¶5     Defendant was charged with one count of being an armed habitual criminal, two counts

of unlawful use or possession of a weapon by a felon, and 15 counts of aggravated unlawful use

of a weapon, arising from defendant’s possession of a firearm on March 31, 2015. Defendant

was tried only on the armed habitual criminal count.

¶6     Prior to trial, defendant filed a motion to suppress statements he made to the arresting

officers, alleging the statements were made during custodial interrogation and the arresting

officers did not advise defendant of his Miranda rights prior to questioning. See Miranda v.

Arizona, 384 U.S. 436 (1966). After filing the motion, defendant retained new counsel, who

subsequently withdrew the motion.

¶7     At trial, Chicago police officer Antrinius Andrews testified that on March 31, 2015, he

and his partner, Officer Jose Rivera, were driving in Chicago and observed a dark green

conversion van with a broken taillight. They activated their vehicle’s emergency equipment and

followed the van, which did not stop. The spotlights on the police vehicle illuminated the inside

of the van. Andrews saw the driver and passenger making “furtive” and “unusual” movements

with their shoulders, which Andrews demonstrated by “ben[ding] over with his shoulders going

down towards—in a frontwards manner reaching towards *** the floor area of his feet area.”

The police vehicle was a sport utility vehicle, so the officers were elevated and could see into the

back window of the van.




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¶8     While the van was still “in drive” and moving, both the driver and passenger jumped out,

and the van ran into a parked car. After calling on the radio for assistance, Andrews gave chase

to the driver, Demarko Jones, and caught him in an alley approximately 30 yards from the squad

car. Andrews had not seen any occupants in the van besides Jones and the passenger.

¶9     Once Andrews returned to the van with Jones in custody, he performed a systematic

search in the van area where he had seen Jones and the passenger “making movements towards

the floor.” Andrews found a fully loaded silver revolver under the front passenger seat of the van

and a semiautomatic black handgun under the driver’s seat. Andrews did not need to move any

items or debris under the passenger seat of the van in order to find the revolver. After Andrews

searched the van, Rivera returned with the passenger, whom Andrews identified in court as

defendant. Andrews identified the revolver that he found under the passenger seat and the five

rounds inside the revolver. These items were subsequently admitted into evidence.

¶ 10   On cross-examination, Andrews said that he was no more than 10 to 15 feet away from

the van when he saw the furtive movements. It was dark outside, and as he had been trained to

do, he used the spotlight to “light up” the van to see what was inside. He acknowledged that he

was not able to see whether defendant had anything in his hands. Andrews did not see Rivera

take defendant into custody and was not present when defendant made any statements. The two

guns were not submitted for fingerprint or DNA analysis. Andrews also found cannabis inside

the van. On redirect examination, Andrews testified that cannabis was recovered from the floor

by the driver’s side of the van.

¶ 11   Rivera testified that he was driving the vehicle with Andrews on May 31, 2015, just

before 8 p.m., when he noticed a conversion van with a broken taillight. As driver, Rivera



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activated the emergency lights and siren to initiate a traffic stop. The van continued driving, and

Rivera noticed the occupants of the van making movements toward the floorboard, ducking

down and “moving stuff around.” Rivera could not see what was in the passenger’s hands at the

time.

¶ 12    Rivera witnessed the driver and passenger jump out of the van as it was traveling

approximately 10 to 15 miles per hour. Rivera identified defendant in court as the passenger of

the vehicle. While Andrews chased the driver, Rivera chased defendant. Rivera never lost sight

of defendant and chased him approximately half a block before he caught up to him and placed

him into custody. Defendant yelled, “I don’t know nothing about them guns.” Rivera then

brought defendant back to the van, where Andrews showed Rivera two guns and marijuana.

Rivera identified the gun that Andrews found in the van under the front passenger seat.

¶ 13    On cross-examination, Rivera acknowledged that his chase of defendant lasted

approximately 15 seconds before defendant “stopped and gave up.” Rivera handcuffed

defendant, and told him “I know why you guys are running.” At that point, defendant stated he

knew “nothing about the guns.” Rivera acknowledged that he did not know why defendant was

running. He did not write in his police report that he told defendant he knew why he was

running, nor did he tell Andrews that defendant made a statement. Subsequently, when defendant

was placed under arrest, Rivera read him his Miranda rights, after which defendant did not say

anything else. On redirect examination, Rivera testified that, while he did not include his

statement to defendant in his police report, he did include defendant’s statement.

¶ 14    The parties stipulated that, if called to testify, Chicago police officer Daniel Linser would

testify he was monitoring the radio on March 31, 2015, when he responded to an emergency call



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regarding the van. When he arrived at the location, he observed a green van that had crashed, but

no occupants were inside. No police officers or civilians were at the scene. Linser guarded the

vehicle until Andrews and Rivera returned. The parties also stipulated that defendant had prior

convictions for criminal drug conspiracy and manufacture and delivery of a controlled substance.

¶ 15   The court denied defendant’s motion for a directed finding. Defendant then testified that

on March 31, 2015, he finished work at 6 p.m. and left to spend time with a friend. After

receiving a text message from his manager, defendant decided to return to his workplace. Jones

drove up in his van and told defendant he was “heading back [defendant’s] way,” so defendant

got in the passenger seat.

¶ 16   As Jones was driving, they were “pulled over” by the police. At that point, Jones “pulled

something off his hip and placed it under the seat.” It looked like a gun. Jones then “hopped out”

of the van and ran. Defendant did the same but only ran across the street because, once he

realized it was a police officer running after him, he stopped, as he only had marijuana on him at

the time.

¶ 17   The police officer handcuffed defendant, placed him in the police vehicle, and searched

the van. After the search, he asked defendant whether he “kn[ew] anything about the gun,” and

defendant responded that he “didn’t know anything about no guns.” Defendant did not know

there were guns in the van and had never been in the van before.

¶ 18   On cross-examination, defendant acknowledged that, as Jones began driving him back to

his workplace, the van was pulled over by the police. Defendant knew it was the police as soon

as they activated the blue lights and spotlights on the side of the car. Defendant saw Jones take a

gun off his hip and throw it under the driver’s seat but never saw him put anything underneath



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the passenger seat. When the police pulled the van over, defendant had marijuana but “tossed it”

toward Jones in the van once he heard the police siren. When defendant ran from the van, he

already knew he was being chased by police because he heard the police siren. Defendant

acknowledged that he ran from the vehicle even though he believed he was not doing anything

illegal, did not know about the guns in the van, and did not have any warrants for his arrest.

¶ 19   After placing defendant into custody and returning him to the car, the officers searched

the van. They asked defendant if he knew about the guns. He was in the back seat of the police

car at the time the officer asked this question. Defendant denied that he knew about the guns or

that he made a statement, stating “none of that happened.”

¶ 20   In rebuttal, the State asked that defendant’s 2005 conviction for criminal drug conspiracy

be used in consideration of defendant’s credibility.

¶ 21   The trial court found defendant guilty of being an armed habitual criminal. The court did

not find the police officers’ testimony impeached by any variations or inconsistencies in their

testimonies. Rather, the court found their testimony describing the movements they saw to be

“credible and consistent” and indicating “sincerity,” noting the officers were sitting “up higher”

than the people in the van and they had their spotlights shining into the back of the van. The

court found the circumstantial evidence “very strong,” given the movements the police observed

and the size of the gun found on the passenger side. The court also found defendant not credible.

The court emphasized that defendant “couldn’t even keep his own story straight on the stand,”

noting that defendant said he stopped once he learned his pursuer was a police officer but also

said he knew before exiting the van that they were police officers because of the sound of the




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police sirens. The court found that defendant’s flight showed consciousness of guilt and his

statement given to the officer “work[ed] against him.”

¶ 22   Defendant filed a motion for a new trial, which the court denied. The trial court sentenced

defendant to seven years’ imprisonment. The court stated that it would not give him the

minimum sentence of six years’ imprisonment because defendant was driving around with a

“huge” and “gigantic” handgun with five live rounds in it when he knew he was not supposed to

have any gun. The court subsequently denied defendant’s motion to reconsider sentence.

¶ 23                                        ANALYSIS

¶ 24   Defendant argues on appeal that this court should reverse his conviction and remand for a

suppression hearing, where his trial counsel was ineffective for failing to reinstate the motion to

suppress defendant’s statement to Rivera. He contends that once counsel heard Rivera’s

testimony, which demonstrated that Rivera illegally elicited defendant’s statement while he was

in custody but had not been given Miranda warnings, counsel should have reinstated the motion.

¶ 25   We review claims of ineffective assistance of counsel using the two-part test set forth in

Strickland v. Washington, 466 U.S. 668 (1984). People v. Manning, 241 Ill. 2d 319, 326 (2011).

To establish a claim of ineffective assistance of counsel, a defendant must demonstrate both that

(1) counsel’s performance was objectively unreasonable under prevailing professional norms and

(2) the deficient performance prejudiced defendant. People v. Veach, 2017 IL 120649, ¶ 30. A

defendant must satisfy both prongs of the Strickland test to prevail on his ineffective assistance

of counsel claim. Id.

¶ 26   With respect to the first prong, courts have ruled that counsel’s decision regarding

whether to file a motion to suppress is generally a matter of trial strategy, which is afforded great


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deference. People v. Bew, 228 Ill. 2d 122, 128 (2008). In order to establish prejudice under the

second prong, “the defendant must demonstrate that the unargued suppression motion is

meritorious, and that a reasonable probability exists that the trial outcome would have been

different had the evidence been suppressed.” People v. Henderson, 2013 IL 114040, ¶ 15. We

review claims of ineffective assistance of counsel de novo. People v. Demus, 2016 IL App (1st)

140420, ¶ 21.

¶ 27   Under Miranda v. Arizona, 384 U.S. at 476-77, an individual who is subjected to

custodial interrogation must be informed of certain rights before any questioning. “Interrogation”

refers to both express questioning and to words and actions on the part of the police “that the

police should know are reasonably likely to elicit an incriminating response from [a] suspect.”

(Internal quotation marks omitted.) People v. Jackson, 374 Ill. App. 3d 93, 106 (2007). The focus

should be on defendant’s perceptions, rather than the intent of the officers. Id. at 107.

¶ 28   Defendant contends that the unargued motion to suppress his statement to Rivera that he

knew nothing about “them guns” would have been successful because, at the time defendant

made the statement, he was in custody and Rivera had not given him the required Miranda

warnings. The parties agree that defendant was in custody when he made his statement to Rivera.

However, they disagree on whether he was subjected to interrogation. Defendant argues he was

subjected to interrogation when Rivera said “I know why you guys are running,” because the

comment was designed to elicit an incriminating response from defendant. The State responds

that the “simple” comment was not interrogation and nothing suggests that defendant perceived

the comment as the functional equivalent of interrogation. The State contends that, even if




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defendant felt inclined to respond to the comment, this does not mean he was coerced to

incriminate himself, such that Miranda’s safeguards apply.

¶ 29   We find that defendant was not subjected to “interrogation” requiring the suppression of

his statement. Rivera’s comment to defendant was “purely informational” because Rivera did not

ask defendant any questions and the comment did not seek or require a response from defendant.

See People v. Jones, 337 Ill. App. 3d 546, 552-53 (2003) (finding police officer’s statement to

the defendant that he found a handgun in the defendant’s car was “purely informational” and not

interrogative, because it did not seek or require any response from defendant). As the United

States Supreme Court explained in Rhode Island v. Innis, 446 U.S. 291, 303 (1980), although a

police officer’s comment may “str[ike] a responsive chord” with a defendant, “subtle

compulsion” is not interrogation unless it can be established “that a suspect’s incriminating

response was the product of words or actions on the part of the police that they should have

known were reasonably likely to elicit an incriminating response.”

¶ 30   Rivera’s comment that he knew why defendant was running was informational and did

not require a response from defendant. We find nothing to suggest that Rivera should have

known that telling defendant he knew why defendant was running would elicit an incriminating

response. Consequently, defendant was not subjected to “interrogation,” and defendant’s motion

to suppress would not have succeeded.

¶ 31   Furthermore, even if the trial court had granted the motion to suppress defendant’s

statement, it would not have affected the outcome of the trial. In order to prove defendant guilty

of being an armed habitual criminal, the State needed to establish that he possessed the revolver

found under his seat. 720 ILCS 5/24-1.7(a) (West 2014); see People v. Ross, 407 Ill. App. 3d



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931, 935 (2011). In order to establish that defendant constructively possessed the firearm, the

State must prove “(1) that defendant had knowledge of the presence of the weapon; and (2) that

defendant exercised immediate and exclusive control over the area when the weapon was found.”

Ross, 407 Ill. App. 3d at 935. Control over the location where the weapon was found gives rise to

an inference that defendant possessed the weapon. People v. McCarter, 339 Ill. App. 3d 876, 879

(2003). “Evidence of constructive possession is ‘often entirely circumstantial.’ ” Id. (quoting

People v. McLaurin, 331 Ill. App. 3d 498, 502 (2002)).

¶ 32   The police officers observed defendant making furtive bending movements toward the

floor of the van where he was sitting, and the revolver was found under his seat. The revolver

found under his seat was large and not covered by anything. The trial court found the officers’

testimony credible, and we defer to that determination. See People v. Brown, 2013 IL 114196,

¶ 48. From this evidence, a rational trier of fact could conclude that, when defendant heard the

police sirens, he bent down and hid the revolver under his seat, thus demonstrating his

knowledge and control over the firearm. Defendant’s flight from police also demonstrates

consciousness of guilt. See People v. Hart, 214 Ill. 2d 490, 519 (2005). Even without defendant’s

statement, the evidence was sufficient to support his conviction.

¶ 33   The record shows that defendant’s statement was not the only factor the trial court

considered in convicting defendant. While the court found defendant’s statement “work[ed]

against him,” it relied on the police officers’ credible testimony regarding the furtive movements

they witnessed defendant make in the passenger seat, the size of the gun found under that seat,

and defendant’s flight from the police demonstrating his consciousness of guilt. Given the

evidence against defendant, it is pure speculation that suppression of the statement would have



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affected the outcome of the trial. “Strickland requires actual prejudice be shown, not mere

speculation as to prejudice.” Bew, 228 Ill. 2d at 135. Defendant cannot make that showing here.

¶ 34   Accordingly, as defendant has not established the prejudice prong of the Strickland test,

his claim that trial counsel was ineffective for failing to reinstate his motion to suppress at trial

must fail.

¶ 35   For the foregoing reasons, the judgment of the circuit court is affirmed.

¶ 36   Affirmed.




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                                 No. 1-16-2341


Cite as:                 People v. Ross, 2019 IL App (1st) 162341


Decision Under Review:   Appeal from the Circuit Court of Cook County, No. 15-CR-
                         5903; the Hon. Michael B. McHale, Judge, presiding.



Attorneys                James E. Chadd, Patricia Mysza, and Ashlee Patterson, of State
for                      Appellate Defender’s Office, of Chicago, for appellant.
Appellant:


Attorneys                Kimberly M. Foxx, State’s Attorney, of Chicago (Alan J.
for                      Spellberg and Douglas P. Harvath, Assistant State’s Attorneys,
Appellee:                of counsel), for the People.




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