People v. Washington ( 2006 )

SECOND DIVISION
January 24, 2006
No. 1-02-2893
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
) Circuit Court of
Plaintiff-Appellee, ) Cook County.
)
v. ) No. 00 CR 26901
)
RAMONA WASHINGTON, ) The Honorable
) James B. Linn,
Defendant-Appellant. ) Judge Presiding.
PRESIDING JUSTICE GARCIA delivered the opinion of the court.
In August 2002, a jury found the defendant, Ramona
Washington, guilty of first-degree murder (720 ILCS 5/9-1(a)(1)
(West 2000)). The trial court sentenced the defendant to a
prison term of 20 years. The defendant appeals her conviction,
raising four issues, only two of which we address: (1) whether
the trial court erred in admitting evidence regarding the
scheduled polygraph examination and (2) whether the trial court
erred in denying her motion to quash her arrest and suppress
statements. For the reasons that follow, we reverse the
defendant's conviction and remand the case for a new trial.
I. BACKGROUND
On December 6, 2000, the defendant found the victim, 78-
year-old Joseph Valladay, dead in his bedroom in the apartment
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they shared. The defendant called 911 from a neighbor's house
and waited with her friend, Ena Mills, in the gangway for
emergency personnel to arrive. The defendant and the victim had
been living together in a basement apartment for eight or nine
months. In November 2000, they had been informed by the new
owners of their building that they would have to vacate their
apartment by early December. The new owners then disconnected
their lights, heat, and hot water.
Detectives Catherine Rolewicz and Mark O'Connor were
assigned to investigate the victim's death. When they arrived on
the scene, they spoke with the defendant outside the apartment.
The defendant identified herself as the victim's granddaughter
and told the detectives that she found the victim dead in his
bedroom that afternoon. Rolewicz testified that the apartment
did not have heat or electricity; it was dark and officers had to
use flashlights to investigate.
Detective Rolewicz found the victim in his bedroom, lying on
his bed with his feet on the floor. Rolewicz observed bruising
and lacerations on the victim's head and face that appeared to be
several days old. She also observed blood in the victim's room
and on the door jamb, and stains on the wall that appeared to
have been wiped down. Behind the apartment's front door, she
observed a wooden two-by-four board with brownish stains that
appeared to be blood.
The parties stipulated that swabs of blood taken from the
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two-by-four board, the door jamb, and the hallway matched the
victim's DNA, and a swab taken from the wall near the bedroom
door matched the defendant's DNA.
After observing the victim, Detective Rolewicz spoke with
the defendant in the apartment. Rolewicz asked the defendant
about the victim's injuries and the defendant informed her that
the victim had been robbed four or five days earlier while
walking home from a store on 63rd Street. The detectives then
asked the defendant and Mills to accompany them to the Area 2
police station for additional questioning. At 6:30 p.m., the
defendant was driven in a marked police car to Area 2.
During the hearing on the defendant's motion to quash
arrest, Detective O'Connor testified that after observing the
victim and his apartment, he believed that there was a
possibility that the victim was beaten inside the apartment and
did not sustain his injuries in a robbery. O'Connor testified
that based on that possibility, he asked the defendant to
accompany him to Area 2 to continue the investigation. He
testified that the defendant was cooperating in the
investigation.
At 10:00 p.m., Detective O'Connor interviewed the defendant
in a conference room and asked her about the blood in the
apartment. She indicated that she did not notice the blood and
that she did not try to wash the walls. O'Connor then sought to
verify the defendant's contention that the victim was robbed
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several days earlier. According to O'Connor, he decided to keep
the defendant at the police station until he could verify her
statements. At some point after O'Connor interviewed the
defendant, she was placed in an interview room where she slept on
a hard bench. The interview room was locked for at least part of
the time that the defendant was in the room.
At 9:00 a.m., on December 7, 2000, Detective O'Connor spoke
to the defendant again and she agreed to take a polygraph test.
She remained in the interview room until 5:15 p.m., when she was
transported by Detective James Washburn to the polygraph unit at
Homan Square.
At trial, Detective Washburn testified that he drove the
defendant to Homan Square in a marked police vehicle. When
Washburn first got into the car, he introduced himself and
advised the defendant of her rights under Miranda v. Arizona, 384
U.S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602 (1966). Washburn
testified that he and the defendant made small talk about the
weather and snow storm. The defendant then asked him about the
polygraph examination. After he explained how the exam worked
and what it measured, the defendant told Washburn "I did it."
Washburn asked what she did, and she replied that she killed the
victim. She stated that she and the victim had argued about
moving to a new apartment, the victim grabbed or hit her, she got
away, grabbed the board, and hit him with it. Washburn then
placed the defendant under arrest.
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After they arrived at Homan Square, Detective Washburn told
Detective O'Connor, who had been driving the defendant's friend
Mills to the same location, about the defendant's statement. The
detectives then returned the defendant to Area 2 without
administering the polygraph examination. O'Connor and Washburn
interviewed the defendant at 7:00 p.m., at Area 2. After they
gave the defendant her Miranda warnings, she relayed much of the
same information that she had told Washburn earlier. In
addition, she stated that the victim tried to grab her around the
throat and that they fell to the ground. While they were on the
ground, the defendant punched the victim four times. The victim
tried to punch the defendant when she grabbed the board. The
defendant told the detectives that she struck the victim several
times and that he fell to the ground. She then helped him up and
cleaned him off. She also tried to clean the blood off of the
walls. She told the officers that she did not mean to hurt the
victim.
At 8:30 p.m., Assistant State's Attorney Scott Herbert
interviewed the defendant with Detective Washburn. In addition
to relating the same facts that she told Detectives O'Connor and
Washburn, the defendant told Herbert that she and the victim were
arguing about getting a new apartment and that he turned his back
and walked away from her. Herbert asked the defendant about
marks on her neck and she stated that the victim did not make
them. The defendant's statement was not memorialized that night
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because the medical examiner's office had not definitively
determined the cause of death. The medical examiner was waiting
on additional information from the police investigation before
doing so.
On December 8, 2000, the medical examiner ruled the victim's
death a homicide. Doctor Aldo Fusaro testified that the victim
died of multiple blunt force injuries due to assault. The victim
had multiple broken ribs that hampered his breathing. The victim
also had emphysema, which contributed to his death.
Assistant State's Attorney Louis Longhitano testified that
he interviewed the defendant at 4:25 p.m., on December 8, 2000.
After he spoke with the defendant, he interviewed Mills and took
her statement. At 7:00 p.m., Longhitano interviewed the
defendant again and specifically asked how she had been treated
and whether anyone had threatened her or made promises to her to
get her to make the statements. The defendant stated that no one
had threatened her or promised her anything in exchange for her
statement. The defendant then agreed to make a videotaped
statement.
At 7:45 p.m., the defendant made a videotaped statement,
which was played to the jury. Longhitano testified that the
answers the defendant gave in the video were essentially the same
as those she had given in the earlier interview. However, the
defendant initially told him that the victim's labored breathing
was caused by the injuries he suffered during their fight, but on
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the videotape, the defendant attributed the labored breathing to
the victim's asthma.
The defendant testified in her own defense. She testified
that she was 36 years old and had been a prostitute for more than
20 years. The defendant met the victim in early 2000. The
victim invited the defendant to live with him in his apartment.
The defendant testified that in exchange for a place to live, she
had sex with the victim, cooked for him, and cleaned his
apartment.
In November 2000, the building that the victim and the
defendant had been living in was sold and the new owners turned
off the hot water, heat, and electricity. The defendant and
victim were told that they had to be out of their apartment by
the first week in December. During that first week, the
defendant tried to talk to the victim about moving, but the
victim told her "[w]hatever" and walked away from her. She
testified that she grabbed him and told him to listen to her. He
turned around, started swearing at her, and hit her in the face.
He came toward her and the defendant started punching him. They
fell to the floor and continued to swing at one another. When
the defendant had the opportunity, she grabbed the board and hit
the victim four or five times. She testified that she was not
trying to kill the victim.
The defendant realized that she should not have been
fighting with the victim and stopped hitting him. She told him
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that she was sorry and helped him to his bed. The victim told
her that everything would be fine and she tried to clean the
blood off of the victim's face. She and the victim then talked
for a little while.
The next morning, the victim was sitting on his bed when the
defendant got up. She fixed him something to eat and went back
to bed. The victim did not leave the apartment over the next few
days and the defendant testified that she continued to care for
him. On December 6, 2000, the victim did not respond when the
defendant called to him. She went to his room and found him
deceased in his bedroom. The defendant called 911 from a
neighbor's house. The defendant initially told the police that
she was the victim's granddaughter because she was not proud of
the relationship that they had. She also testified that the
victim told her that he had been robbed a couple of days before
their fight.
After hearing all of the evidence, the jury found the
defendant guilty of first-degree murder. The trial court denied
the defendant's motion for a new trial and sentenced her to a
prison term of 20 years. This appeal followed.
II. ANALYSIS
On appeal, the defendant argues: (1) the State's multiple
references to her scheduled polygraph examination denied her a
fair trial; (2) the trial court erred in denying her motion to
quash arrest and suppress statements; (3) during closing
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argument, the State misstated the evidence and made inaccurate
and prejudicial statements designed to inflame the passions of
the jury; and (4) her mittimus does not accurately reflect the
proper credit for the number of days served.
A. References to Polygraph Examination
The defendant argues that she was denied a fair trial when
the trial court allowed the State to make multiple references to
a polygraph examination the defendant was scheduled to take
before she made her inculpatory statement. The defendant
contends that the State used the evidence, not to respond to any
allegations that her statement was coerced, but simply to bolster
her inculpatory statement. The State maintains that the evidence
was properly admitted because "the testimony was minimal and was
necessary to allow the jury to determine whether or not the
statement was voluntarily made." The court permitted the
references for the stated purpose of showing the circumstances
under which the defendant made the statement. The court
explained that "the fact that [the defendant] knew that she was
on her way to the polygraph and then she started saying things
different to law enforcement is relevant and it's much more
probative than prejudicial."
During its case-in-chief, the State elicited testimony from
Detective Washburn that the police had scheduled a polygraph
examination appointment for the defendant and that he drove her
to the testing facility for the appointment. He testified that
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en route, the defendant asked him several questions about the
polygraph examination. He explained to her that the polygraph
examiner would bring her into a room and hook her up to certain
equipment used to perform the examination. The defendant also
asked him what the equipment did. When Washburn started to
testify as to his response, the trial court called a sidebar.
During the sidebar, the court reiterated that evidence concerning
the polygraph examination was limited to the fact that the
defendant was on her way to a polygraph examination when she made
an inculpatory statement, and the State could not elicit
testimony that explained to the jury what the polygraph equipment
did. Washburn never testified as to what a polygraph examination
did or that the defendant took the examination.
The State again elicited testimony about the scheduled
polygraph examination when cross-examining the defendant. The
State contends that the evidence was used to impeach the
defendant and to establish that she had lied to police before she
made her inculpatory statement. After the State asked the
defendant whether she told the police that she was the victim's
granddaughter or whether she noticed blood in the apartment, the
State asked, "And certainly you didn't tell the police or anyone
about beating [the victim] with that stick until they said,
'Let's take you for a lie detector test'; is that correct?" The
State later asked the defendant if she told the police that she
hit the victim with the board before she was on her way to the
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polygraph examination.
During closing arguments, the State argued that the
defendant made her inculpatory statement while en route to the
polygraph examination because at that point she "starts thinking
this lie's not going to make it."
The general rule in Illinois is to preclude the introduction
of evidence regarding polygraph examinations and their results
because (1) the evidence is not sufficiently reliable, and (2)
the results may be taken as determinative of guilt or innocence
despite their lack of reliability. People v. Jefferson, 184 Ill.
2d 486, 492-93, 705 N.E.2d 56 (1998). Our supreme court has held
that the prejudicial effect of admitting such evidence
substantially outweighs its probative value, and that admission
of the evidence constitutes "'an unwarranted intrusion' into the
trier of fact's role in determining the credibility of the
witnesses." People v. Jackson, 202 Ill. 2d 361, 368, 781 N.E.2d
278 (2002), quoting People v. Baynes, 88 Ill. 2d 225, 244, 430
N.E.2d 1070 (1981). This evidence, however, may be admitted for
the limited purposes of rebutting a defendant's claim that his
confession was coerced or, more generally, "'when the issue is
the voluntariness of a confession.'" Jefferson, 184 Ill. 2d at
493, quoting People v. Triplett, 37 Ill. 2d 234, 239, 226 N.E.2d
30 (1967).
In Jefferson, the supreme court held that evidence of a
scheduled polygraph examination was properly admitted at trial
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where the defendant claimed that her inculpatory statement was
coerced. Jefferson, 184 Ill. 2d at 496. The defendant claimed
that she made an inculpatory statement because the police
promised that, in consideration for the statement, she would be
released from custody and would be able to see her family. The
supreme court held that evidence of the defendant's scheduled
polygraph examination and her decision to confess before the
examination was relevant and admissible to rebut the defendant's
allegations of coercion. Jefferson, 184 Ill. 2d at 496-97.
In contrast, in Jackson, the State introduced evidence that
a witness had been confronted with the results of his polygraph
test when he made an inculpatory statement against the defendant.
Although the witness testified that the statement was not
truthful, he did not assert that it was procured by coercion
until after the State questioned him about the polygraph
examination. The State maintained that the evidence was
admissible to show the course of conduct leading to the witness's
statement; the trial court agreed and admitted the statement
"'for a limited purpose.'" Jackson, 202 Ill. 2d at 365.
The supreme court distinguished Jefferson and held that the
polygraph evidence served no legal purpose because, when it was
introduced, there was no evidence or claim by the witness that
the statement was coerced. Jackson, 202 Ill. 2d at 370-71.
While the evidence in Jefferson was used as a "shield against the
defendant's allegation of police misconduct," in Jackson, "the
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State attempted to use the evidence affirmatively as a sword to
advance its own case." Jackson, 202 Ill. 2d at 371. The court
held that it would "not condone the anticipatory introduction of
polygraph evidence by the State." Jackson, 202 Ill. 2d at 372.
This case is more similar to Jackson than Jefferson. In
this case, the State first elicited testimony concerning the
defendant's pending polygraph examination from Detective Washburn
during its case-in-chief. Prior to his testimony, the defendant
did not make any allegations that her statement was coerced or
unreliable. Although the State argues in its brief that it had a
duty to prove the defendant's statement was voluntary and that
the evidence was used to rebut the defendant's affirmative
defense of self-defense, this evidence, when it was admitted,
"served no proper legal purpose." See Jackson, 202 Ill. 2d at
371. To uphold the State's contention that the polygraph
evidence was properly admitted in its case-in-chief to meet its
burden of proving the voluntariness of the defendant's statement
would nullify the general rule in Illinois barring such evidence
as this argument could almost always be made. See Jefferson, 184
Ill. 2d at 492.
Further, we agree with the defendant that the State sought
to bolster the validity of her inculpatory statement with this
evidence. The State's questions during cross-examination and
comments during closing argument suggest that the defendant's
statement must be reliable because she was on her way to take a
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lie detector test when she made it and her earlier "lie's not
going to make it." The State's suggestion of reliability of the
defendant's statement based on her anticipated failure of the
polygraph test is an improper purpose for the admission of
polygraph evidence. See People v. Baynes, 88 Ill. 2d 225, 244,
430 N.E.2d 1070 (1981) (result of polygraph test not reliable);
People v. Taylor, 101 Ill. 2d 377, 393, 462 N.E.2d 478 (1984)
(knowledge of media reports regarding performance of "clear[ed]"
codefendant on a lie detector test tainted prospective jurors).
Although the trial court employed a balancing test in
deciding whether to admit the polygraph evidence, it did so
prematurely. Before polygraph evidence may be admitted as more
probative than prejudicial, the State must first establish that
the voluntariness of the defendant's alleged confession is at
issue. See Triplett, 37 Ill. 2d at 239; Jefferson, 184 Ill. 2d
at 495 (the State properly permitted "to rebut the defendant's
claim of coercion with polygraph evidence"). In reversing this
court in Jackson, the supreme court stated: "[W]e cannot agree
with the appellate court's conclusion that the introduction of
polygraph evidence before the witness has opened the door to its
admission was merely a harmless timing error." Jackson, 202 Ill.
2d at 371. Here, the State is unable to put forth an argument
that the defendant opened the door to the introduction of
Detective Washburn's testimony regarding the scheduled polygraph
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test as Washburn's testimony was presented in the State's case-
in-chief. Absent the door being opened by the defendant, there
is no legal purpose for the admission of the polygraph evidence.
See Jackson, 202 Ill. 2d at 371. Based on our reading of the
supreme court's holding in Jackson, the trial court's reliance on
the balancing test for admitting the polygraph evidence during
the State's case-in-chief was error. As our supreme court
stated: "We did not approve the offensive use of polygraph
evidence in Jefferson, and we will not now allow the State to
create a straw man only to knock him down, all within its own
case in chief." Jackson, 202 Ill. 2d at 371. As Jackson makes
clear, before the admission of polygraph evidence may be
considered, "requiring the State to offer some legally valid
foundation prior to admitting inherently unreliable and
prejudicial evidence seems but a small intrusion on judicial
expediency in light of this court's long-standing general bar on
polygraph evidence." Jackson, 202 Ill. 2d at 372.
Based on the record before us, we hold that it was
reversible error to admit the polygraph evidence because it was
introduced in the State's case-in-chief and was used as a sword
to advance the State's case. We therefore reverse the
defendant's conviction and remand for a new trial.
B. Motion to Quash Arrest and Suppress Statements
Prior to trial, the defendant filed a motion to quash
arrest. The trial court denied the motion and explained that
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nothing in the record suggested that the defendant was coerced,
handcuffed, "being sweated," or treated in an inappropriate
fashion. Further, there was no evidence the defendant ever asked
to leave, indicated that she did not want to be at the police
station, or indicated that she would have preferred to be
somewhere else. The court explained that the defendant "was
talking throughout the time that she was with the police. They
were trying to check out things that she had said. And as they
were checking things out, they were finding inconsistencies with
her report. But she still always persisted in telling the police
that she had information about what had happened."
The defendant argues that the trial court erred when it
denied her motion to quash arrest because her initial voluntary
presence at Area 2 was converted into an unlawful detention
during her presence at Area 2 and her inculpatory statements were
the fruits of her illegal arrest and inadmissible at trial.
On December 6, 2000, at 6:30 p.m., the defendant accompanied
the police to the Area 2 police station. She was initially
placed in a conference room and was interviewed by Detective
O'Connor at 10:00 p.m. Sometime after that interview, the
defendant was placed in an interview room that was locked for at
least part of the time that the defendant was in the room. She
remained in the room until 5:15 p.m. the next evening, when
Detective Washburn drove her to Homan Square. During the 23
hours the defendant was at Area 2, the defendant spoke with the
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police on two occasions. The police never informed the defendant
that she was free to leave or that she was not under arrest; the
police did not tell her that she could not leave or that she was
under arrest either. The defendant was not processed,
fingerprinted, or handcuffed. Although O'Connor testified that
the defendant was free to have visitors, there is no evidence
that this information was relayed to the defendant.
Additionally, the defendant was not offered the use of a
telephone. O'Connor testified that he kept the defendant at Area
2 because he wanted to verify her version of events. Prior to
her formal arrest, the defendant was given her Miranda rights
only once, when she was being driven to Homan Square by Washburn.
While en route, the defendant asked Washburn about the polygraph
examination, made an incriminating statement, and was formally
arrested.
Where a trial court's ruling on a motion to quash arrest
involves factual determinations and credibility assessments, a
reviewing court will not reverse the ruling unless it is
manifestly erroneous. People v. Chapman, 194 Ill. 2d 186, 217,
743 N.E.2d 48 (2000). However, if there are no factual or
credibility disputes and the appeal involves a pure question of
law, de novo review is appropriate. Because Detective O'Connor
was the only witness at the hearing on the defendant's motion to
quash arrest, and the parties do not contend that factual or
credibility disputes arose during the hearing, we review the
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trial court's denial de novo. Chapman, 194 Ill. 2d at 217.
An arrest or illegal detention without probable cause
violates an individual's rights under the Illinois and United
States Constitutions. U.S. Const., amend. IV; Ill. Const. 1970,
art. I, '6; People v. Wallace, 299 Ill. App. 3d 9, 17, 701 N.E.2d
87 (1998). An arrest occurs when a person's freedom of movement
is restrained by physical force or a show of authority. People
v. Barlow, 273 Ill. App. 3d 943, 949, 654 N.E.2d 223 (1995).
"The test for determining whether a suspect has been arrested is
whether, in light of the surrounding circumstances, a reasonable,
innocent person would have considered himself free to leave."
Wallace, 299 Ill. App. 3d at 17.
Factors Illinois courts consider in determining whether a
defendant was arrested include: (1) the time, place, length,
mood, and mode of the encounter between the defendant and the
police; (2) the number of police officers present; (3) any
indicia of formal arrest or restraint, such as the use of
handcuffs or drawing of guns; (4) the intention of the officers;
(5) the subjective belief or understanding of the defendant; (6)
whether the defendant was told he could refuse to accompany the
police; (7) whether the defendant was transported in a police
car; (8) whether the defendant was told he was free to leave; (9)
whether the defendant was told he was under arrest; and (10) the
language used by officers. People v. Jackson, 348 Ill. App. 3d
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719, 728, 810 N.E.2d 542 (2004); Barlow, 273 Ill. App. 3d at 949;
but see People v. Davis, 142 Ill. App. 3d 630, 636, 491 N.E.2d
1285 (1986) ("defendant's subjective beliefs *** are irrelevant
to a determination of whether he was illegally detained"). No
factor is dispositive and courts consider all of the
circumstances surrounding the detention in each case. People v.
Reynolds, 257 Ill. App. 3d 792, 800, 629 N.E.2d 559 (1994).
"Even if a defendant was not told that he was under arrest, not
touched by a police officer, not handcuffed, fingerprinted,
searched, or subjected to any other arrest procedures, he may
have been illegally detained if he was not told that he could
leave and he did not feel free to leave." Reynolds, 257 Ill.
App. 3d at 800.
In this case, the State does not argue that it had probable
cause to arrest the defendant prior to the time she made an
inculpatory statement on the way to her polygraph examination.
It contends that the defendant voluntarily accompanied the police
to Area 2 and remained there because she wanted to assist in
their investigation. While we agree with the trial court that
there is no evidence that the defendant's initial presence at
Area 2 was anything but voluntary, "the fact that a defendant
initially accedes to a police request to accompany them to the
police station does not legitimize the treatment of defendant
after he arrived at the station." People v. Young, 206 Ill. App.
3d 789, 801, 564 N.E.2d 1254 (1990).
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Illinois courts have repeatedly rejected the proposition
that a person who voluntarily agrees to accompany the police to
the station for questioning implicitly agrees to remain at the
station until the police have probable cause for his arrest. In
Young, the court determined that the defendant was subject to an
illegal detention even though he had initiated contact with the
police and agreed to go to the police station. In making its
determination, the court found as persuasive: (1) the defendant
was not asked to wait in a public waiting area at the police
station; (2) he was placed in a segregated interview room with
the door closed; (3) during questioning he did not implicate
himself and was not released or told he was free to leave once
questioning was over; (4) he was left to sleep in a closed
interview room without sleeping facilities; (5) the State did not
rebut his contention that he was not allowed use of the
telephone; (6) he was in the police station for 12 hours before
he made an incriminating statement and the police had sufficient
probable cause to arrest him; and (7) he was questioned only once
after the initial interview. Young, 206 Ill. App. 3d at 800-01.
The court also rejected the State's argument that the defendant
was merely a witness, explaining that "[i]f mere questioning was
the goal, he would not then have been ignored and left to spend
the entire night." Young, 206 Ill. App. 3d at 801.
In Barlow, the defendant voluntarily accompanied his brother
to the police station to answer questions about a murder
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investigation. Although the brother was told he could leave, the
defendant was not given that option. He was given his Miranda
rights and interviewed. He was then left in a locked interview
room for six or seven hours while the police sought to verify his
statements. Barlow, 273 Ill. App. 3d at 949-50. The appellate
court held that the defendant was under arrest while he was
locked in the interview room and "rejected the proposed fiction
that a person who voluntarily agrees to submit to interrogation
at a police station also implicitly consents to remain in the
police station while the police investigate the crime to obtain
probable cause for the interviewee's arrest." Barlow, 273 Ill.
App. 3d at 950; see also People v. Walls, 220 Ill. App. 3d 564,
579, 581 N.E.2d 264 (1991) (finding it difficult to believe "that
citizens typically agree to spend extended periods of time at
police stations, kept in small windowless rooms, waiting for the
police to conduct their investigations and obtain probable cause
for their arrest").
After carefully reviewing the circumstances surrounding the
defendant's presence at the Area 2 police station, we find that
the circumstances were such that a reasonable person would have
concluded that she was not free to leave. Like the defendant in
Young, the defendant was not asked to wait in a public waiting
area. She was initially placed in a conference room where she
was interviewed by Detective O'Connor. After the interview, the
defendant was not released or told she was free to leave.
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Although the defendant did not implicate herself in the victim's
murder or assault, the police moved her to a separate, sometimes
locked, interview room where she slept on a hard bench. At 9:00
a.m. the next morning, the defendant was asked if she was willing
to take a polygraph examination. The defendant agreed but
remained in the interview room until Detective Washburn drove her
to Homan Square at 5:15 p.m.
Detective O'Connor indicated that he "kept" the defendant in
the interview room until 5:15 p.m., on December 7, 2000, because
the police wanted to verify her statements. During that time,
the defendant was not moved to a public waiting area or informed
that she was free to leave. The trial court's statement that the
defendant "always persisted in telling the police that she had
information about what had happened" finds no support in the
record, because the police interviewed the defendant only once
during the 23 hours that she was in the station. O'Connor
testified that during that interview, the defendant stated that
she did not see the blood in the apartment or try to wash it off
the wall. There is no evidence in the record that she provided
any incriminating information at that time. The police did not
talk to the defendant again until they asked her if she would be
willing to take a polygraph examination.
Based on the facts in this case, we find that "[i]t defies
credibility for a detainee under such severe and extended
circumstances to believe that [her] acquiescence to such
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treatment was left to [her] voluntary discretion." Young, 206
Ill. App. 3d at 801. We also reject the State's unsupported
assertion that the defendant chose to remain at the station
because she was homeless, there was a snowstorm, and the police
station was warm and well-lit.
A finding that a defendant was subject to an illegal arrest
does not resolve the question of whether her inculpatory
statements were properly admitted at trial. Wallace, 299 Ill.
App. 3d at 18. Statements may be admissible if they were
obtained "by means sufficiently distinguishable to be purged of
the taint of the illegal arrest." Barlow, 273 Ill. App. 3d at
952. To determine whether a confession was the product of an
illegal arrest, courts consider: (1) the proximity in time
between the arrest and the confession; (2) the presence of
intervening circumstances; (3) the purpose and flagrancy of the
police misconduct; and (4) whether the defendant received
Miranda warnings. Barlow, 273 Ill. App. 3d at 952. Because the
trial court did not address whether the defendant's statements
were sufficiently attenuated from the illegal arrest to purge the
taint of illegality, the State may seek an attenuation hearing on
remand prior to the new trial. See Wallace, 299 Ill. App. 3d at
19.
C. Closing Arguments
The defendant next argues she was denied a fair trial
because during closing arguments the State misstated the law and
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evidence, made inaccurate, prejudicial statements designed to
inflame the passions of the jury, and improperly commented on the
repercussions of a verdict other than first-degree murder.
Because we are remanding this case for a new trial, we need not
reach the merits of these arguments.
D. Defendant's Mittimus
The defendant also argues that her mittimus must be
corrected to reflect the proper number of days credit for time
served. Again, because we are remanding this case for a new
trial, we need not address this issue.
III. CONCLUSION
For the reasons stated, we reverse the defendant's
conviction and remand for proceedings consistent with this order.
A new trial is not barred by the prohibition against double
jeopardy because the evidence presented at trial, including the
polygraph evidence and the defendant's confession, was sufficient
to support the defendant's conviction. See People v. Olivera,
164 Ill. 2d 382, 393, 647 N.E.2d 926 (1995) ("for purposes of
double jeopardy all evidence submitted at the original trial may
be considered when determining the sufficiency of the evidence").
Reversed and remanded with instructions.
WOLFSON and BURKE, JJ., concur.
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