People v. Hughes , 2013 IL App (1st) 110237 ( 2014 )

ILLINOIS OFFICIAL REPORTS
Appellate Court
People v. Hughes, 2013 IL App (1st) 110237
Appellate Court THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption CAVINAUGH HUGHES, Defendant-Appellant.
District & No. First District, Third Division
Docket No. 1-11-0237
Filed December 18, 2013
Held Defendant’s convictions for two murders were reversed and the cause
(Note: This syllabus was remanded for a new trial, since defendant confessed to both murders
constitutes no part of following intensive custodial interrogation, he was 19 years of age, he
the opinion of the court only attended school through the ninth grade, he got low grades, he had
but has been prepared substance abuse problems, he smoked marijuana in the course of his
by the Reporter of questioning, he had juvenile arrests but little experience with the criminal
Decisions for the justice system, his detention and interrogation over a period of 16 hours
convenience of the with little food, minimal sleep and the untruths told by his interrogators
reader.)
left him in a weakened condition, the coercive tactics used by the
interrogators, including a polygraph test, contributed to his vulnerability,
and under the totality of the circumstances, reversal and suppression were
required, and on remand, if defendant is convicted, the trial court was
directed to grant defendant credit for his presentencing custody starting
in 2006.
Decision Under Appeal from the Circuit Court of Cook County, Nos. 06-CR-26159, 06-
Review CR-26160 cons.; the Hon. John P. Kirby, Judge, presiding.
Judgment Reversed and remanded.
Counsel on Michael J. Pelletier and Nicole Marie Jones, both of State Appellate
Appeal Defender’s Office, of Chicago, for appellant.
Anita M. Alvarez, State’s Attorney, of Chicago (Michelle Katz and Janet
Mahoney, Assistant State’s Attorneys, of counsel), for the People.
Panel PRESIDING JUSTICE HYMAN delivered the judgment of the court,
with opinion.
Justice Pucinski concurred in the judgment and opinion.
Justice Mason dissented, with opinion.
OPINION
¶1 Nineteen-year-old Cavinaugh Hughes confessed to two murders while subjected to
intensive custodial interrogation. Hughes does not challenge the voluntariness of one of the
confessions, but he contends that the other, a later confession, should have been suppressed
as a product of coercion given the totality of the circumstances.
¶2 There is nothing more damning than a confession. Its effect has been described as
“incalculable.” People v. Miller, 2013 IL App (1st) 110879,¶ 82. Indeed, confessions
constitute the strongest possible evidence the State may offer in the course of a criminal case.
And because of the unparalleled weight accorded confessions in our legal system, courts
should closely scrutinize confessions, especially, where, as here, police give false assurances
to a vulnerable accused during a polygraph exam, and, at trial, the prosecution presents weak
corroborative evidence.
¶3 Despite the unreliability of polygraphs as a matter of law (People v. Taylor, 101 Ill. 2d
377, 391 (1984)), police still use them to elicit confessions. And they do so with few
safeguards or restrictions other than the requirement of voluntariness, which is primarily a
question of fact falling on the State to prove beyond a reasonable doubt.
¶4 We watched the video recording of Hughes’ interrogation from start to finish. Our bird’s-
eye view of what occurred before the first confession and, more tellingly, between the time
of the first confession and the second confession, raises intolerable doubts about the validity
of the second confession. The methods the detectives used during the interrogation process
contaminated this confession. The totality of the circumstances underlying Hughes’ second
confession establish that he lacked the ability to make a rational, unconstrained decision to
confess. Accordingly, we reverse and remand for a new trial.
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¶5 BACKGROUND
¶6 The Murders
¶7 Much of the following narrative is adduced from the trial testimony of Dorian Skyles, a
prosecution witness who testified in exchange for a plea deal.
¶8 A rumor started by a grandchild of Elijah Coleman’s sister had it that Coleman won the
lottery. Joshua Stanley, who attended school with the grandchild, heard the rumor and came
up with a plot to steal the money. On November 18, 2005, Stanley and one of Stanley’s
friends met another friend, Dorian Skyles, at an apartment Skyles shared with his girlfriend,
Jetun Coburn. Stanley asked Skyles for a gun to use in the robbery, claiming the lottery
winnings were kept in a safe at Coleman’s house where the 68-year-old Coleman lived with
his sister and her grandchildren. Skyles called defendant Cavinaugh Hughes and told him to
come to the apartment. Hughes arrived with another person, and Skyles gave Stanley and
Hughes revolvers.
¶9 Around 10:30 or 11 p.m., Skyles and Coburn left the apartment in Skyles’ car, and
Hughes, Stanley, and two other people left in Hughes’ car. The group headed over to
Coleman’s house, a distance of about six blocks. Skyles parked on the street. Hughes parked
in the alley behind the house. Stanley, Hughes, and the two others approached the front door,
and within moments, Skyles heard a gunshot. About 5 or 10 minutes later, Skyles heard
another gunshot.
¶ 10 Skyles then saw Stanley, Hughes, and the two others run from the house. Skyles and
Coburn immediately drove to their apartment. Soon after arriving there, Hughes called
Skyles, hysterical, saying that Stanley had shot Coleman.
¶ 11 The next day, November 19, Skyles called Hughes, and said, “[W]e need to find
[Stanley].” Hughes and another friend, Cordell Matthews, went to Skyles’ apartment, at
which time, according to Skyles, Hughes told him he shot Coleman in the legs and that
shortly afterwards Stanley shot Coleman in the head. Then, Skyles and Coburn in one car,
and Hughes in Coburn’s Chevrolet Impala, drove around the neighborhood looking for
Stanley. At some point, Hughes switched the license plates on the Impala with temporary
plates registered to his car.
¶ 12 Skyles found Stanley, told him they needed to talk, and drove Stanley to Coburn’s
apartment. Hughes and Matthews joined them. As they drank alcohol and smoked marijuana,
they discussed the robbery and shooting. Skyles testified that he and Hughes spoke privately,
and, again according to Skyles, Hughes confided in Skyles that he planned on killing Stanley.
¶ 13 Later that day Skyles told Stanley to get into the Impala with Hughes. A short time later,
Hughes called Skyles to tell him he had lost the keys to the Impala, and Skyles should come
and get him. Skyles picked up Hughes, who told him he had shot Stanley. About a block
away, Skyles saw the Impala parked in an alley with police officers on the scene. The police
found Stanley in a nearby gangway and transported him to a hospital where he died.
¶ 14 Hughes left for Michigan the next day. Skyles and Coburn reported the Impala stolen.
The police, however, did not believe their story and questioned Skyles and Coburn about the
murders. Skyles struck a deal with prosecutors and agreed to testify against Hughes. Skyles,
in exchange for a plea to a lesser offense and reduced sentences, pleaded guilty to two counts
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of home invasion and conspiracy to commit first degree murder, for which he received
concurrent sentences of 17 and 7 years.
¶ 15 Hughes’ Arrest and Interrogation
¶ 16 Eleven months after the murders, Hughes was arrested in Michigan. On October 26,
2006, Chicago police detectives Ford and Lazarra went to Kalamazoo County, Michigan, to
return Hughes to Chicago. About 2 p.m., the detectives read Hughes his Miranda rights.
Hughes indicated he understood his rights and wished to make a statement. The detectives
instructed Hughes to wait, handcuffed Hughes’ hands behind his back, and drove to Chicago.
Hughes did not talk about the murders during the ride. But he did complain about the
tightness of the handcuffs and asked that he be handcuffed with his hands in front to alleviate
the pain. The detectives refused Hughes’ request.
¶ 17 When they arrived at the station, Hughes was placed in a room equipped with an audio-
video camera. At about 3:30 p.m., with the audio-video recording, Detectives Ford and
Brannigan sat down with Hughes. Almost immediately, Hughes asked the detectives to
remove the handcuffs and expressed relief when they did. The detectives then left Hughes
alone for about 45 minutes.
¶ 18 When the detectives returned, they took Hughes to use the restroom. Back in the
interrogation room, Hughes was read his Miranda rights for the second time and was asked
whether he understood his rights and would answer questions. Hughes responded “yeah” to
both inquiries.
¶ 19 Periodically throughout the interrogation, the detectives provided Hughes with cigarettes.
¶ 20 Hughes claimed to have been standing outside Coleman’s residence when Skyles shot
Coleman in the legs and Stanley shot Coleman in the head, and that Skyles later killed
Stanley to prevent him from going to the police. Hughes claimed he acted only as a lookout
for the robbery of Coleman. The detectives left again at 4:39 p.m.
¶ 21 When the detectives returned some 4 hours and 40 minutes later, Hughes repeated the
story. He further claimed that he was not in on planning Stanley’s murder. The detectives
pressed Hughes, and at about 9:30 p.m. he recanted, admitted he knew of the plan to kill
Stanley, but claimed he did not know when and where it would occur. Hughes also admitted
he was angry with Stanley and wanted Stanley dead for shooting Coleman. Hughes denied
disposing of the gun that was used to shoot Stanley.
¶ 22 Around 10:40 p.m., Hughes agreed to provide a DNA sample. After taking Hughes to use
the restroom, the detectives left him alone in the interrogation room until 11:22 p.m. During
that 42-minute interval, Hughes sat, paced, and got a bit of sleep. This time when the
detectives returned, they gave Hughes a soft drink and read him his rights regarding the DNA
sample. An evidence technician took a swab from Hughes’ cheek. The detectives and the
technician left Hughes alone again.
¶ 23 At 11:46 p.m., the detectives returned. Hughes repeated his story a third time. The
detectives continued questioning Hughes. Around 12:21 a.m., following a question about
whether he disposed of the gun used to kill Stanley, Hughes asked:
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“[Hughes]: Well, when did my grandfather die, man?
[Detective]: I don’t know the exact day, but a few months ago.
[Hughes]: Was he dead in his crib?
[Detective]: He died at home, yeah.
[Hughes]: He died at home. Peaceful though?
[Detective]: Yes.
[Hughes]: Man, after we left, man, I dumped it. I dumped the three fifty-seven
[revolver]. I broke it down at my house, wrapped it up in a sock man and I threw it in the
river, man. I threw it in the river by the border going towards Indiana.”
¶ 24 After this admission, Hughes still maintained Skyles shot Coleman in the legs and killed
Stanley. The detectives again asked if Hughes shot Coleman. Again Hughes denied it, telling
the detectives, “Man, though like if y’all whatever man *** court people look at me for that
old man G, that’s why I was mad, man. I did not do shit to that old man. My grandfather,
man, shit, I just found out yesterday.” The detectives asked about the identity of the two
others who participated in the robbery. Hughes denied knowing their names, but said about
Stanley:
“[Hughes]: *** That n***a [Stanley] had no business whacking that old man for no
reason at all even after Dough [Skyles] shot that n***a [Coleman] in the leg. After
Dough [Skyles] shot him in the leg it wasn’t even–wasn’t even–got to do shit else to him.
He was down.
[Detective]: Well, you know what the fatal shot to that old man, was the leg shot. He
bled to death.
[Hughes]: But he got shot in the head though.
[Detective]: It went through the cavity and ended up in his mouth. That did not kill
him. It’s fucked up, uh?
[Hughes]: Hell yeah that’s fucked up. That’s bogus. And I don’t be–I don’t even be
praying everyday for me to get me out of trouble, G. I pray everyday for that old man,
Joe, straight up man. I loved my grandfather, Joe, I would have never–I would never got
down like that. Straight up, man.
[Detective]: You were pretty pissed at Josh [Stanley], uh?
[Hughes]: Man, I was mad as hell.”
At trial, the parties stipulated that Coleman died of “multiple gunshot wounds,” not of any
specific wound.
¶ 25 The detectives left Hughes at 12:38 a.m. While alone, Hughes smoked, paced, and talked
to himself, mumbling “It’s over man. *** They know everything.” He spoke aloud to his
dead grandfather, “Man, Pops, your ass dying on me, man. I sure needed you during this shit,
man,” and “You disappointed in me right now, you know. Man, I started out as your
everyday school boy. Ain’t nobody loved me, Jesus. Man, outta here, fool. It’s over.”
(Hughes argues he said “Everybody loved me” rather than “Ain’t nobody loved me, Jesus.”
The transcript does not clarify this.) Around this time, Hughes pulls some kind of cigarette
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out of his underwear and rolls it. At 12:54 a.m., the detectives returned, and the interrogation
continued,
“[Detective]: We came to an understanding here, right? You’re not going to bullshit
me no more? Here’s–there’s only one thing I have an issue with. Okay. And that’s with
who shot Josh [Stanley]. Okay. You’re just–you’re getting charged with the same thing
regardless, okay.
[Hughes]: For both of them?
[Detective]: Well, we’ll see. But now here’s the deal. I’m willing to tell you right
now that I believe you when you tell me you did not shoot the old man. Okay. And
there’s where we’re going to let it out you said you did not shoot the old man, but I know
that pissed you off to no end because of your grandfather, right? Now Josh stole the last
couple of months of your life away from spending it with your grandfather and you’re
fuckin’ pissed. I know you were pissed. You were the one that changed the plate on the
car, you were the one that ended up with the gun, and you told Cordell that you shot Josh.
*** You know that we have other information that there’s other people looking out their
windows and shit and you and Dough [Skyles] look nothing alike. *** You’re–you’re
heavy and he’s skinny.
[Hughes]: I shot Josh [Stanley].”
¶ 26 After 9½ hours, Hughes confessed to killing Stanley. He still insisted, however, that
Skyles shot Coleman in the legs. The detectives questioned Hughes some more, and left at
1:04 a.m.
¶ 27 While the detectives were out of the room, Hughes can be seen mumbling to himself and
pacing. The detectives came back at 1:22 a.m. with a sandwich and another soft drink for
Hughes, and left.
¶ 28 At 1:35 a.m., the detectives returned and requestioned Hughes about the shooting of
Coleman in the legs. Hughes denied he shot Coleman. The detectives asked Hughes if he
would be willing to sit for a polygraph examination. Hughes consented. The detectives said
the polygraph would be given in the morning. They gave Hughes a lit cigarette and left.
¶ 29 While Hughes paced, he reached inside his pants and carefully rolled, lit, and smoked
something, which he finished shortly after 2 a.m. Then, lying on a cot, he appears to close
his eyes and sleep.
¶ 30 Less than a half hour later, the detectives reentered the room and turned on the lights, and
the following conversation took place:
“[Detective]: Change of plans bro, get dressed.
[Hughes]: Can I get a square, Joe?
[Detective]: Yeah.
[Detective]: What the fuck were you doing in here?
[Hughes]: Uh.
[Detective]: You’re smoking in here now that we’re all sitting in here smoking. What
were you smoking? Buds [marijuana]?
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[Hughes]: Yeah, smoking buds.
[Detective]: How did you get it lit?
[Hughes]: Off the one [cigarette] I had. Just kept smoking till I fell to sleep. That’s
the last one I had right there.”
¶ 31 The detectives handcuffed Hughes before taking him for the polygraph exam. Hughes
arrived at the polygraph examiner’s office and the examiner, Detective Figueroa-Mitchell,
read Hughes his rights, which he waived. She discussed the nature of the test and the
importance of telling the truth. Several time Figueroa-Mitchell represented to Hughes that
the polygraph was infallible:
• “[T]his is a genuine test. This is not a joke. We need to try to find the truth.”
• “[R]emember when you were in school LB [Hughes] somebody said, ‘Oh you got
ninety-five on the test?’ *** You passed, that’s an A, right? *** Okay. It’s not an A
because it’s [a] polygraph. *** A polygraph, if it’s not 100 percent, *** it’s a failure. ***
It’s a straight failure. There’s nothing you can do. We got to have the whole truth and
nothing but the truth because that’s the only way it’s going to happen in this room if you
pass.”
• “If for any reason *** you can’t be honest with yourself, you’re going to have
problems passing.”
• “Scientists believe that certain things happen inside the body that no one can control
because we’re just human *** [a]nd when we happen to tell a lie our body has to kick
in *** we call it the flight, fright and freeze.”
She asked for his side of the story. Hughes repeated that Skyles shot Coleman in the legs:
“Man, Dorian [Skyles] was the first person in. He shot–he shot him [Coleman] in his legs.”
¶ 32 Figueroa-Mitchell examined Hughes from 3:35 a.m. to about 4:05 a.m. Three times
during the test the detective asked, “Did you have a gun in that house?” to which Hughes
answered “No.” She left the room shortly after the test. Hughes sat, nodding off in his chair.
Figueroa-Mitchell returned about 4:30 a.m. with a soft drink for Hughes.
¶ 33 Figueroa-Mitchell claimed the test revealed Hughes had consistently lied on one question
(“I asked *** ‘Did you have a gun in that house?’ The whole test *** just dropped to the
floor. I don’t know why. I wasn’t there, but according to this, it ain’t truth.”), and that this
was his only opportunity to tell the truth. She spoke to him at length, and reiterated that
showing remorse would benefit Hughes in the future:
“[Figueroa-Mitchell]: We’re not trying to upset you up in here. We’re trying to work
it out and you just be as truthful as possible because if you don’t be truthful it’s only
going to hurt you down the long run. Okay. ’Cause people want to know if he’s an okay
guy, is he a bad guy, was it a mistake, doesn’t he have remorse, is he sorry? You know
what they gonna say? He went to the lie box and he just kept lying. He never, ever told
the truth. *** I’m–I’m fighting for you over here. *** I’m trying to get you to say ‘I’m
sorry.’ And that is your beginning of what you got to see. It’s the most important part
right now. *** But if you not sorry about it, what you think is going to happen? It’s going
to be awful. You see what I’m saying? Everything going to get awful if there’s no
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remorse. You see what I’m saying? Because then they’re gonna say–you know what, this
guy he’ll do it again *** I’m just asking you was this a mistake?
[Hughes]: Yeah.”
Figueroa-Mitchell kept pressing Hughes. Around 4:53 a.m., Hughes explained:
“[Hughes]: It was suppose to be a younger guy. At the door it was suppose to be a
younger man who answered the door. *** Dude sure, I mean [Stanley] was sure about
it. And then he’ll go to the door but he be having that gun, have it close to him all the
time woo-woo-woo. So shit, [Stanley] had the gun. I had the gun. He opened the door.
[Stanley] knocked on the door. You know what I’m saying? He was at the door. I ain’t
really–I ain’t–I ain’t see it was an old man ‘cause [Stanley] was in front of it. You know.
It was suppose to–It was suppose to–dude was suppose to be a young n***a coming to
the door. When he came to the door he was suppose to have a gun, so I just was suppose
to boom-boom two times in the leg. *** Then that was it.”
¶ 34 The polygraph examiner brought in the other detectives, and Hughes told them he shot
Coleman in the legs. The polygraph video ends about 5 a.m. Hughes was returned to the
interview room at 5:42 a.m.
¶ 35 Hughes filed a motion to suppress the confession regarding the shooting of Coleman in
the legs. After a hearing, Hughes’ motion to suppress was denied. The trial court found
Hughes was read his Miranda rights on three occasions: (i) before his extradition from
Michigan, (ii) before his interrogation began in Chicago, and (iii) before the polygraph
examination. As to the handcuffs, the trial court stated the detectives removed them in the
interrogation room. The trial court, after reviewing the video recording of the interrogation
and the transcript, found the detectives’ testimony to be credible and no evidence of coercion.
¶ 36 Hughes was convicted of two counts of first degree murder and sentenced to natural life
in prison. This appeal followed.
¶ 37 ANALYSIS
¶ 38 Confession Issue Preserved for Appeal
¶ 39 The State asserts that Hughes forfeited review of the confession issue for purposes of an
appeal, citing People v. Coleman, 129 Ill. 2d 321 (1989). We disagree.
¶ 40 We find Coleman inapposite. Coleman was charged with the murder and aggravated
kidnaping of a nine-year-old girl. Id. at 325-26. When questioned by an FBI agent, Coleman
asserted his right to counsel. Id. at 340. Later that day, a local police officer questioned him,
and he admitted to knowing the victim. Id. Coleman filed a motion to suppress his statements
to the FBI agent, which the trial court granted, but he did not move to suppress his statements
to the police officer. Id. The officer testified at trial about the statement, and Coleman
objected on “foundational” grounds. Id. The trial court overruled the objection. On appeal,
the court affirmed, holding that Coleman’s failure to bring up the issue in his motion to
suppress and properly object at trial constituted forfeiture through procedural default. Id. at
340-41.
¶ 41 The State argues that Hughes, like Coleman, did not seek to suppress his statements on
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the grounds that they were involuntary in light of his youth, lack of education, emotional
distress, lack of sleep, and police deceptions. But, in Coleman, the defendant never
mentioned in his written motion to suppress the issue of his statements to local police. Here,
however, Hughes filed a written motion specifically setting forth his voluntariness
arguments. Hughes urged that the detectives obtained the confession as a result of
“psychological,” “mental,” and “physical coercion illegally directed against” him.
¶ 42 To preserve appellate review of an issue raised in a motion in limine, the defendant must
include it in a posttrial motion. People v. Hudson, 157 Ill. 2d 401, 434 (1993). The defendant
need not “state identical grounds for contesting the issue” but may raise the issue under
similar theories. People v. Hyland, 2012 IL App (1st) 110966, ¶¶ 27-28 (holding related
theories preserved for review by filing motion to quash arrest and suppress evidence). At the
hearing on the motion to suppress, defense counsel focused on the detectives’ interrogation
of Hughes during the extradition. After trial, Hughes in his motion for a new trial argued,
among other matters, that the trial court erred in denying his motion to suppress. At that
hearing, defense counsel urged that Hughes made his statements in an attempt to please the
detectives and that the detectives repeatedly lied to him to coerce his statements. These
arguments preserve the issue of the voluntariness of Hughes’ confession.
¶ 43 The dissent argues that Hughes forfeited the issue of voluntariness when his counsel
stated, before the hearing on his motion to suppress, that he would focus the evidentiary
hearing on Hughes’ interrogation while extraditing Hughes from Michigan. This does not
amount to a forfeiture under the law. Forfeiture, “strictly defined,” is the failure to make the
timely assertion of the right. Gallagher v. Lenart, 226 Ill. 2d 208, 229 (2007). Forfeiture or
procedural default prevents litigants “from asserting on appeal an objection different from
the one” advanced in the trial court. People v. Heider, 231 Ill. 2d 1, 18 (2008). But “where
the trial court clearly had an opportunity to review the same essential claim that was later
raised on appeal, *** there was no forfeiture.” (Emphasis added.) Id.
¶ 44 The trial court had an opportunity to review the same essential claim as Hughes presents
to us. Hughes moved in limine to suppress his statements, arguing they resulted from
“psychological,” “mental,” and “physical coercion illegally directed against” him. At the
evidentiary hearing, the video of the interrogation became part of the record. In his oral
ruling, the trial judge indicated that “[t]he allegations in the complaint are that there was
physical, mental coercion,” and then the judge addressed whether the manner in which
Hughes was handcuffed amounted to coercion. The trial judge denied the motion to suppress,
finding “no evidence of any physical coercion” or “violations of his [Hughes’] Fifth or 14th
Amendment [rights].”
¶ 45 Hughes moved for a new trial based partly on the denial of his motion to suppress. This
time Hughes argued that (i) he tried to please the detectives during his interrogation; (ii) the
detectives lied to induce him to confess; and (iii) his youth and the duration of the
interrogation coerced him into confessing.
¶ 46 We believe these two motions and hearings confirm that the trial court had every
opportunity to meaningfully review and rule on the same essential claim raised on appeal,
namely, involuntariness. Thus, we find no forfeiture.
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¶ 47 Even if we were to find forfeiture, the plain error doctrine permits us to “by-pass normal
rules of forfeiture and consider ‘[p]lain errors or defects affecting substantial rights ***
although they were not brought to the attention of the trial court.’ ” People v. Eppinger, 2013
IL 114121, ¶ 18 (quoting Ill. S. Ct. R. 615(a)). Plain error review applies in two
circumstances: (i) when “a clear or obvious error occurred and the evidence is so closely
balanced that the error alone threatened to tip the scales of justice against the defendant,
regardless of the seriousness of the error”; or (ii) when “a clear or obvious error occurred and
that error is so serious that it affected the fairness of the defendant’s trial and challenged the
integrity of the judicial process, regardless of the closeness of the evidence.” Id.
¶ 48 The first step involves determining whether a clear and obvious error occurred. Id. ¶ 19.
As evident from our analysis below, based on the totality of the circumstances, the admission
of Hughes’ statements regarding the murder of Elijah Coleman falls within the realm of a
clear and obvious error. Infra ¶¶ 55-82. The second step involves determining whether the
evidence presented at trial was closely balanced, which it is here. Hughes’ confession played
a critically important role in his conviction–no evidence directly linked Hughes to Coleman’s
death. Other than the confession, the evidence consisted of (i) the testimony of Skyles, who
claimed he did not witness the shooting and, in exchange for a lighter sentence, testified that
he heard Hughes admit to the shooting, and (ii) the testimony of Matthews, who was not
present during Coleman’s murder and testified that he did not remember many of the
conversations that implicated Hughes. Furthermore, until the confession, Hughes repeatedly
denied shooting Coleman and maintained that Skyles shot Coleman. As such, the evidence
against Hughes consisted almost entirely of his confession. People v. Patterson, 2012 IL App
(1st) 101573, ¶ 41 (“Because confessions have such persuasive effect as evidence of guilt,
the erroneous admission of a confession into evidence rarely constitutes harmless error.”).
¶ 49 Voluntariness of Confession
¶ 50 Hughes argues that the trial court erred in denying his motion to suppress his confession
that he shot Coleman. In support, Hughes cites lack of sleep, lack of education, his youth, his
emotional distress over learning of his grandfather’s death, and the deception and trickery
used by the police. After taking into consideration the totality of the circumstances, as we
must, we do not believe Hughes’ confession was freely and voluntarily made.
¶ 51 “In reviewing a trial court’s ruling concerning whether a confession is voluntary, the trial
court’s factual findings will be reversed only if those findings are against the manifest weight
of the evidence. [Citation.] Ultimately, however, the trial court’s ruling on whether the
confession was voluntary is subject to de novo review.” People v. Murdock, 2012 IL 112362,
¶ 29; In re G.O., 191 Ill. 2d 37, 50 (2000). Illinois courts examine confessions “solely in the
light of the voluntary-involuntary test.” (Internal quotation marks omitted.) People v. Willis,
215 Ill. 2d 517, 524 (2005). “ ‘A confession is voluntary if it is the product of free will, rather
than the product of the inherently coercive atmosphere ***.’ ” In re Marquita M., 2012 IL
App (4th) 110011, ¶ 22 (quoting People v. Nicholas, 218 Ill. 2d 104, 118 (2005)). Thus, the
confession must be the product of a free and unconstrained choice of its maker.
¶ 52 The totality of the circumstances determines voluntariness. People v. Armstrong, 395 Ill.
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App. 3d 606, 624 (2009). The inquiry “examines ‘whether a defendant’s will was overborne’
by the circumstances surrounding the *** confession.” Dickerson v. United States, 530 U.S.
428, 434 (2000) (quoting Schneckloth v. Bustamonte, 412 U.S. 218, 226 (1973)). This
“determination ‘depend[s] upon a weighing of the circumstances of pressure against the
power of resistence of the person confessing.’ ” Id. (quoting Stein v. New York, 346 U.S. 156,
185 (1953)). Factors considered include: (i) the defendant’s age, intelligence, education,
experience, and physical condition at the time of the detention and interrogation; (ii) the
duration of the interrogation; (iii) the presence of Miranda warnings; (iv) the presence of any
physical or mental abuse; and (v) the legality and duration of the detention. People v. Harris,
2012 IL App (1st) 100678, ¶ 63. The State bears the burden of establishing voluntariness by
a preponderance of the evidence. People v. Harbach, 298 Ill. App. 3d 111, 117 (1998). The
court may also consider the investigator’s fraud, deceit, or trickery in obtaining a confession
(People v. Bowman, 335 Ill. App. 3d 1142, 1153 (2002)), and threats or promises made to
the defendant (People v. Richardson, 234 Ill. 2d 233, 253-54 (2009)).
¶ 53 Deception can compromise a defendant. In People v. Eckles, for instance, the defendant
came to the police station to answer questions regarding a burglary. People v. Eckles, 128 Ill.
App. 3d 276, 277 (1984). A police officer told the defendant (a 19-year-old with tenth-grade
education) that “it would be in [the defendant’s] best interests to get the truth out as fast as
possible,” and that “if he told the truth and cooperated, [the officer] would inform the State’s
Attorney and testify in court as to the defendant’s cooperation.” Id. The officer also said that
a witness had identified the defendant as involved. Id. at 279-80 (Alloy, P.J., dissenting).
After only 25 to 35 minutes of questioning, the defendant confessed to the burglary. Id. at
279 (majority opinion). At the suppression hearing, the defendant testified that he admitted
to the burglary so that the officer “might help make things go easier for him.” Id. at 280
(Alloy, P.J., dissenting). The trial court noted that the question of voluntariness was
“extremely close,” but concluded that the statement was voluntary. On appeal, a divided
panel affirmed, finding that the totality of the circumstances did not indicate that the
defendant’s will was overcome. Id. at 279 (majority opinion).
¶ 54 Courts have a long-standing mistrust of extrajudicial confessions because “confessions
are unreliable if coerced; and, for various psychological reasons persons ‘confess’ to crimes
that either have never occurred or for which they are not legally responsible.” (Internal
quotation marks omitted.) People v. Rivera, 2011 IL App (2d) 091060, ¶ 40. “ ‘[U]ntrue
confessions may be given to gain publicity, to shield another, to avoid apparent peril, or for
other reasons.’ ” (Internal quotation marks omitted.) Id. (quoting People v. Lambert, 104 Ill.
2d 375, 380 (1984)). An innocent person may confess from “fatigue, stress, and being worn
down through relentless questioning and sleep deprivation; some people confess out of fear;
some people confess with the expectation of future exoneration; some people confess due
to coercive or suggestive methods of interrogation.” Id. (citing Saul M. Kassin, Inside
Interrogation: Why Innocent People Confess, 32 Am. J. Trial Advoc. 525 (2009)). “False
confessions are more common than sometimes believed, and standard interrogation
techniques designed to elicit confessions–including the use of false claims that the
investigators have definitive evidence of the examinee’s guilt–do elicit false confessions.”
National Research Council, Committee to Review the Scientific Evidence on the Polygraph
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et al., The Polygraph and Lie Detection 56 (2003), available at http://www.nap.edu/
catalog.php?record_id=10420.
¶ 55 Hughes was 19 years old at the time of the interrogation. He attended school through the
ninth grade, and received C’s and D’s. He used marijuana five to six times a day and drank
several glasses of cognac twice a week. His arrests as a juvenile involved unlawful use of a
weapon and criminal trespass to a vehicle. Hughes argues that his lack of education, regular
substance abuse, and minimal experience with the criminal justice system contributed to the
involuntariness of his confession.
¶ 56 Hughes’ age, intelligence, education, experience, and physical condition at the time of
the detention and interrogation address his character and capacity to resist police coercion.
Courts recognize that youth, education, and experience increase susceptibility to police
coercion. We agree that Hughes’ youth (Hughes was 19 years old at the time of interrogation)
and lack of education (Hughes only attended school to the ninth grade) heightened his
vulnerability to the coercive tactics used on him. See People v. Starling, 64 Ill. App. 3d 671,
675 (1978) (suppressing statement of inexperienced 18-year-old defendant); People v.
Braggs, 209 Ill. 2d 492, 519 (2003) (“Custodial interrogation trades on the weaknesses of
individuals [citation]; the young and mentally infirm are most vulnerable.”). Also, nothing
in the record indicates that Hughes ever had a meaningful interaction with the criminal
justice system, such as undergoing an interrogation and suffering the consequences of his
statements. People v. Johnson, 208 Ill. 2d 53, 99 (2003) (“it is the experience of giving up
rights and actually suffering consequences as a result thereof that causes people to
comprehend the significance of those rights”).
¶ 57 The dissent rejects the notion that Hughes’ youth and education made him more
susceptible to coercion. In support, the dissent cites Hughes’ ability to read aloud and
properly pronounce complex multisyllabic words and phrases contained in the written
waivers (“constitutional,” “judicial order,” “biological evidence,” etc.). Pronunciation is not
a sign of one’s intelligence or an indicator of one’s ability to resist police coercion. See State
v. Skillicorn, 944 S.W.2d 877, 889-90 (Mo. 1997) (noting defendant’s inability to pronounce
“coercion” irrelevant). The dissent further argues that because Hughes understood the
meaning of “accountability” he must have had sufficient experience with the criminal justice
system to make his statement voluntary. Why would understanding the meaning of a single
word convey experience with the criminal justice system? In fact, Detective Ford explained
to Hughes the meaning of “accountability” early in the interrogation:
“Well, let me explain something to you, okay. There’s nothing to frame you on.
Okay? Already, just your participation in the robbery and your participation in the
planning of the murder makes you accountable. You understand what accountability is?
That means you’re going to get charged whether or not you’re the shooter or not.”
(Emphasis added.)
¶ 58 Moreover, that Hughes began his custody in the backseat of a car, handcuffed behind the
back in an uncomfortable and painful position for at least 1½ hours typifies a coercive
atmosphere. Detective Ford testified that Hughes, who was overweight, complained of the
pain the handcuffs caused him. The State argues that the stress of the handcuffs does not
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amount to physical coercion. We agree that alone the use of handcuffs is usually
inconsequential. See People v. Cukojevic, 103 Ill. App. 3d 711, 720 (1981) (“the use of
handcuffs is not coercive per se”). Yet, handcuffing a person in an uncomfortable position
for a prolonged period serves to reinforce one’s powerlessness and helplessness. And
prolonged handcuffing that is unnecessarily uncomfortable may contribute to a coercive
atmosphere.
¶ 59 As to the length of the interrogation, Hughes was picked up in Michigan around 2 p.m.
and the interrogation ended around 6 a.m. the following day. Just over half of that time
Hughes spent alone. Over the course of the interrogation, Hughes’ clarity and cadence of
speech, alertness, and concentration deteriorate. While in the afternoon he speaks freely, by
the early morning hours before and during the polygraph examination Hughes mumbles
several answers and appears exhausted.
¶ 60 Detective Ford told an obviously exhausted Hughes to sleep, and that he would take him
for the polygraph in the morning. Ford returned 25 minutes later, announcing a “change of
plans.” Where the State presses an interrogation into the early morning hours, depriving an
accused of sleep, it can intensify the coercive atmosphere. People v. Travis, 2013 IL App
(3d) 110170, ¶ 64 (finding sleep deprivation caused by waking accused at night can lead to
more coercive environment). Moreover, during the course of the interrogation, the detectives
gave Hughes one sandwich and three soft drinks: a meager amount of food for a large person
held for 14 hours.
¶ 61 Regarding physical or mental abuse, Hughes argues that the police took advantage of his
distress on learning the day before that his grandfather had died. Hughes mentions his
grandfather several times during the interrogation, and Coleman seems to remind Hughes of
his grandfather. Though Hughes does not appear to be in emotional distress, he talks aloud
to his late grandfather between interrogation sessions, indicating that he felt alone after his
grandfather’s passing. While Hughes was grieving during the interrogation, it is not clear that
Hughes’ grief had any impact on the voluntariness of his statements. See People v. Ybarra,
46 Ill. App. 3d 1049, 1051 (1977) (“ ‘It is to be expected that an accused charged with the
crimes of murder and robbery might be apprehensive and under a certain amount of
emotional stress; however, we cannot say that because defendant was crying he could not
freely and voluntarily confess to the crimes.’ ” (quoting State v. Jones, 545 P.2d 323, 326
(Kan. 1976))).
¶ 62 Hughes also cites his regular drug use (smoking five or six joints a day, and drinking four
or five glasses of cognac twice a week) to show involuntariness. See People v. Kincaid, 87
Ill. 2d 107, 117 (1981) (“A confession which is, in fact, induced by the administration of a
drug, whether the drug is self-administered or otherwise, is involuntary and, thus is
inadmissible into evidence.” (Emphasis omitted.)). While nothing indicates that Hughes
confessed as a result of any withdrawal effects (e.g., People v. Brown, 172 Ill. 2d 1, 28
(1996) (“defendant did not show symptoms of undergoing cocaine withdrawal, nor did
defendant ever mention that he was ill”)), he did smoke marijuana immediately before the
polygraph exam.
¶ 63 Neither the State nor Hughes’ counsel had mentioned the use of marijuana by Hughes
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before he took the polygraph test. The State filed a motion after oral argument for leave to
cite additional authority, which we allowed, citing cases holding that a reviewing court
“should not normally search the record for unargued and unbriefed reasons to reverse a trial
court judgment.” (Emphasis added.) Saldana v. Wirtz Cartage Co., 74 Ill. 2d 379, 386
(1978). The dissent echoes this sentiment. But the reason to reverse–the involuntariness of
the confession–Hughes himself raised in the first instance before the trial court and before
us in his opening brief. Thus, Hughes framed the issue by both arguing and briefing the
involuntariness of the confession as the reason for reversal. What the State tries to
characterize as a reason to reverse does not constitute a reason at all but merely embodies an
additional evidentiary basis in the record bearing on the reason. There is nothing
extraordinary or irregular about that. People v. Alfaro, 386 Ill. App. 3d 271, 290 (2008)
(“[t]he ultimate question of whether suppression is warranted is reviewed de novo. [Citation.]
Further, in reviewing the trial court’s ruling, a reviewing court may consider the entire
record” (emphasis added)); cf. Mitchell v. Toledo, Peoria & Western R.R. Co., 4 Ill. App. 3d
1, 3 (1972) (“although the entire record is available, the reviewing court is not required to
search the record to find reason to reverse” (emphasis added)). Our de novo review of the
record includes, as it should, viewing the entire video of Hughes’ interrogation.
¶ 64 Furthermore, though “normally” a reviewing court should avoid questions not presented
by the parties, situations do arise where justice demands otherwise. First Capitol Mortgage
Corp. v. Talandis Construction Corp., 63 Ill. 2d 128, 133 (1976) (reviewing court not
required to search record to sustain judgment, but may, either if justice requires, or where
record is simple and claimed errors can be easily decided without aid of briefing); Halpin v.
Schultz, 234 Ill. 2d 381, 390 (2009) (waiver “is an admonition to the parties rather than a
limitation on a court of review”). Because defendant in the first instance raised the reason,
we need not consider whether justice requires the court to raise sua sponte an unargued and
unbriefed reason to reverse.
¶ 65 The dissent essentially asks us to ignore the record, arguing that it is beyond our authority
to view the interrogation video and decide what it shows, and that an evidentiary hearing
should determine the contents of the video. While, in certain cases, the contents of a video
recording may raise a question of fact (e.g., Commonwealth v. Huynh, 895 N.E.2d 471
(Mass. 2008) (blurry, poor quality video created question of fact)), typically a hearing adds
nothing of consequence regarding the contents of the video. Here both the video and
transcript of the interrogation were introduced and authenticated as part of the record. See
People v. Tomei, 2013 IL App (1st) 112632, ¶¶ 43-44 (finding admissibility of video turns
on its accuracy and reliability). When introduced by the State, a video and transcript are not
considered hearsay (Ill. R. Evid. 802(d) (eff. Jan. 1, 2011)), and likened to in-court
testimony. “ ‘It is well established that a taped conversation or recording, which is otherwise
competent, material and relevant, is admissible so long as it is authenticated and shown to
be reliable through proper foundation. [Citation.] A taped conversation is not hearsay; rather,
it is a ‘mechanical eavesdropper with an identity of its own, separate and apart from the
voices recorded.’ [Citation.]” People v. Theis, 2011 IL App (2d) 091080, ¶ 32.
¶ 66 Moreover, reviewing courts frequently view video on appeal and interpret its contents
without the aid of the trial court. For example, in People v. Woods, the defendant confessed
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to participating in a double murder. People v. Woods, 184 Ill. 2d 130, 132 (1998). The
defendant moved to suppress his confession, alleging that the police beat it out of him. Id.
at 133. At the hearing, the defendant presented evidence, including video and photographs
of the beating. The trial court denied the motion to suppress, (id. at 139-45) the Illinois
Supreme Court reversed. Significantly, the supreme court viewed one of the videos of the
defendant’s statements and found, “although the State introduced the post-confession
videotape ***, this black-and-white videotape is inconclusive, as the camera angle and the
positioning of defendant does not afford the viewer an opportunity to assess defendant’s
condition.” (Emphasis added.) Id. at 149. The court’s conclusion–that the tape was
inconclusive on the question of the defendant’s injury–is a finding allowed under a de novo
review of the record. See also People v. Traylor, 331 Ill. App. 3d 464, 468 (2002) (“After
viewing the photographs, we find that definite bruising was present on Traylor’s nose in the
September 25 photograph. Additionally, we find that such bruising was not present before
Traylor’s interrogation based on the testimony of every witness, including the investigators.”
(Emphases added.)); People v. Hernandez, 362 Ill. App. 3d 779, 785 (2005) (relying on
“verbatim transcript” of confession made from video). Viewing and interpreting this type of
evidence does not require the superior position of the trial court as with live witnesses, and,
therefore, entitled to no deference. See People v. Oaks, 169 Ill. 2d 409, 447-48 (1996) (where
record contains videotape and transcript of interrogation, so that neither facts nor credibility
of witnesses is in issue, voluntariness of defendant’s statements is question of law reviewed
de novo), abrogated by In re G.O., 191 Ill. 2d 37, 50 (2000) (“we will review de novo the
ultimate question of whether the confession was voluntary” regardless of whether video and
transcript of interrogation are in record); In re D.F., 201 Ill. 2d 476, 498-99 (2002) (“Under
a manifest weight of the evidence standard, we give deference to the trial court as the finder
of fact because it is in the best position to observe the conduct and demeanor of the parties
and the witnesses and has a degree of familiarity with the evidence that a reviewing court
cannot possibly obtain.”). In this situation, our eyes are just as functional as the trial court’s.
Thus, review of Hughes’ confession video does not constitute, as the dissent asserts, our
taking on the role of fact finder.
¶ 67 The State argues that “it would have been impossible for [Hughes] to be under the
influence of any substance at the time he spoke to the detectives in this case.” The State and
the dissent contend that this court could not conclude that Hughes smoked marijuana without
further testimony from the detectives. The evidence at the motion hearing, however, belies
the State’s claim.
¶ 68 The State entered the video into the record and established its accuracy. As the video and
transcript attest, Hughes indeed smoked marijuana while in custody, and Detective Ford
knew it. We see Detective Ford come into the interrogation room, smell something, identify
the smell as “buds,” marijuana, and ask Hughes about it. Hughes readily admits to the
possession and use of marijuana, yet Ford reacts so nonchalantly that one might think he had
taken a whiff of a strong cologne. Ford’s behavior is out of character for a law enforcement
officer who has come across contraband in a custodial setting. Moreover, the circumstances
before us are unique–a suspect in custody smoking marijuana immediately before taking a
polygraph examination.
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¶ 69 The dissent also takes issue with our conclusion that Hughes smoked marijuana before
sitting for the polygraph, insisting that it might have been tobacco–an assertion that rewrites
the evidence. The dissent readily admits that the video shows Hughes rolling something to
smoke between interrogation sessions, and smoking it around 2 a.m. Had Hughes been
hiding tobacco in his underwear, why would Detective Ford have reacted to the smell on
entry to the interrogation room? Why would Ford ask Hughes to identify the smell, as Ford
too had been smoking tobacco with Hughes throughout the interrogation? Ford enters the
room to take Hughes for polygraph testing and asks “What the fuck were you doing in here?
*** What were you smoking? Buds?” “Buds” is a common slang term for marijuana.
Watching the video and reading the transcript leaves no doubt that Hughes smoked marijuana
before the polygraph.
¶ 70 Moreover, to reach the conclusion that Hughes smoked tobacco, the dissent edits the
transcript, changing “buds” to “butts” among other things; a transcript which the State
created and entered into evidence. Reinterpretation is wholly improper, and the State would
be estopped from such speculation. See People v. Woods, 214 Ill. 2d 455, 475 (2005) (party
forfeits issues as to impropriety of evidence if party procures, invites, or acquiesces in its
admission).
¶ 71 Under these unique facts, Hughes’ marijuana use militates against a finding of
voluntariness as it likely reduced his ability to resist the detectives’ coercion. The dissent
disagrees, though the State conceded at oral argument that, if Hughes smoked marijuana
before confessing, it would make a difference in determining whether Hughes’ confession
was voluntary. Polygraphs, after all, measure psychological stress through cardiovascular and
respiratory patterns. The dissent argues that there is no binding precedent stating that
confessions made while under the influence of a controlled substance are “per se coerced.”
We agree. The test of whether intoxication alone will negate a waiver of rights presents a
high bar: “The suppression of a statement is warranted if the evidence ‘plainly shows that a
suspect is so grossly intoxicated that he no longer has the capacity to knowingly waive his
rights.’ [Citation.]” People v. Crenshaw, 2011 IL App (4th) 090908, ¶ 18. But less than gross
intoxication may still affect a person’s will. Cf. United States v. Montgomery, 14 F.3d 1189,
1195 (7th Cir. 1994) (“when the interrogating officers reasonably should have known that
a suspect is under the influence of drugs or alcohol, a lesser quantum of coercion may be
sufficient to call into question the voluntariness of the confession” (internal quotation marks
omitted)). Hughes’ marijuana use immediately before his early morning polygraph militates
against a finding of voluntariness, though it is not dispositive.
¶ 72 Hughes next cites a number of untruths told by the detectives during the interrogation.
In limited circumstances, interrogators may use subterfuge in attempting to elicit a
confession. But where the State extracts a confession using deceptive interrogation tactics
calculated to overcome the defendant’s free will, suppression may be appropriate. People v.
Bowman, 335 Ill. App. 3d 1142, 1153 (2002). “A misrepresentation which prompts
inculpatory statements is only one factor to be considered in determining the voluntariness
of the resulting statements.” People v. Kashney, 111 Ill. 2d 454, 466 (1986). Hughes cites
numerous lies told by the detectives, which the State does not contest in its brief: (i) that his
fingerprints were found at the scene; (ii) that numerous witnesses placed him at the scene;
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(iii) that the leg wounds, and not the head wound, killed Coleman; (iv) that he had failed the
polygraph; and (v) that the court needed to know Hughes was sorry for what he had done.
¶ 73 The detectives’ claims of having nonexistent evidence is a common police strategy, and
while falsified evidence raises concerns as to voluntariness of a confession, usually, courts
go along with these ruses. While the false-evidence ploys may be disturbing contextually and
cumulatively, Hughes’ “failed” polygraph and being told after the polygraph that the court
needed to know Hughes was sorry for what he had done, weigh the heaviest against
voluntariness due to their proximity and causal connection to the confession.
¶ 74 Though it would surprise most laypersons, polygraph results are not admissible evidence
due to their insufficient reliability and the possibility that they may be given extraordinary
weight. People v. Taylor, 101 Ill. 2d 377, 392 (1984); People v. Washington, 363 Ill. App.
3d 13, 20 (2006). The use of polygraph evidence in a criminal trial constitutes reversible
error (People v. Kuhfuss, 241 Ill. App. 3d 311, 317 (1993)), as its admission undermines the
integrity of the judicial process (People v. Rosemond, 339 Ill. App. 3d 51, 59 (2003)).
Deceptive use of polygraph “results” to procure a confession weighs against a finding of
voluntariness. See People v. Melock, 149 Ill. 2d 423, 449-50 (1992) (“In light of defendant’s
steadfast denial of any involvement in the murder until confronted with the polygraph
‘results,’ we believe that [the] deception largely contributed to defendant’s decision to
inculpate himself.”).
¶ 75 In the pretest interview, Detective Figueroa-Mitchell told Hughes that the polygraph was
infallible (e.g., “ ‘A polygraph, if it’s not 100 percent, *** it’s a failure.’ ”). Supra ¶ 31.
When she later tells Hughes that he failed the polygraph (“I wasn’t there, but according to
this it ain’t truth”), she cloaks herself with the imprimatur of certainty. Figueroa-Mitchell’s
deception is akin to confronting an accused with fabricated evidence to elicit a confession.
See State v. Craig, 864 P.2d 1240, 1242 (Mont. 1993) (“The officers mislead defendant into
believing that the results of the [polygraph] test were legitimate and admissible in order to
induce a confession. *** [I]t is not acceptable to this Court for the police to use the results
of a polygraph examination to tell a defendant that he lied in order to extract a confession.”);
State v. Cayward, 552 So. 2d 971, 974 (Fla. Dist. Ct. App. 1989) (“we think the
manufacturing of false [scientific] documents by police officials offends our traditional
notions of due process of law under both the federal and state constitutions”). Before being
confronted with the polygraph results, Hughes denied shooting Coleman and insisted Skyles
was the shooter.
¶ 76 Our courts long ago ruled that the polygraph has little place in the judicial process.
People v. Taylor, 101 Ill. 2d 377, 392 (1984); Rachael Adelson, The Polygraph in Doubt, 35
Monitor on Psychology 71 (July 2004) (available at http://www.apa.org/
monitor/julaug04/polygraph.aspx) (“Psychologists have repeatedly told U.S. courts that
polygraph tests–popularly thought to reveal a person’s truthfulness through assessment of
physiological states–are theoretically unsound and not valid in assessing honesty.”). Yet, it
has remained a police ploy.
¶ 77 Basically, the results of polygraph exams have been so discredited that their introduction
is barred in both criminal and civil proceedings. But that has not stopped its use as a tactic
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to induce confessions. The exam also puts the defendant in a catch-22. The defendant is
confronted with polygraph evidence which is misrepresented to be the absolute truth, and is
then pressured to confess and confirm the “test results.” The accused only later learns that
the results are inadmissible due to their unreliability, and ironically must appear at trial to
rebut a claim that he or she was coerced (even if the polygraph was the source of coercion).
See People v. Washington, 363 Ill. App. 3d 13, 20 (2006) (polygraph evidence “may be
admitted for the limited purposes of rebutting a defendant’s claim that his confession was
coerced”).
¶ 78 Moreover Detective Figueroa-Mitchell, the polygraph examiner, repeatedly represented
to Hughes that she was “here to help” him, and that if he did not show remorse for shooting
Coleman, his situation would only get worse. She also told Hughes that she was “fighting”
for him, and that–if he showed remorse for shooting Coleman–she would testify in court on
his behalf.
¶ 79 The State argues that Hughes could have called Figueroa-Mitchell to the stand on his
behalf at the sentencing hearing. This argument is unrealistic at best. The relationship
between the accused and law enforcement is naturally hostile. It would be tremendously
unlikely a defendant would call an investigating detective to testify on his or her behalf
during sentencing, and this tactic strikes us not only as inadvisable, but ludicrous. Thus,
Hughes’ ability to summon the detective to the stand to testify as to Hughes’ remorse does
not cure the coercive nature of the lies told by Figueroa-Mitchell.
¶ 80 Looking at the totality of the circumstances, Detective Figueroa-Mitchell’s trickery and
its cumulative effect, along with Hughes’ character and the circumstances of the
interrogation, indicate that his confession to shooting Coleman was not voluntary. Hughes’
confession occurred around 5 a.m., after being in custody since 2 p.m. the previous day. By
the time of his confession, a visibly spent and drug-addled Hughes had eaten little. In this
condition, Figueroa-Mitchell pressed Hughes to confess and apologize for shooting Coleman.
She stated that he had “failed” the polygraph exam, that a confession would aid him, and that
she would testify on his behalf if he showed remorse. Confessions, such as this, always
follow “failed” polygraphs as opposed to one with “passing” results. It is one thing to use
these tactics on an alert, sober individual. See People v. Eckles, 128 Ill. App. 3d 276, 279
(1984) (finding no coercion where 19-year-old accused questioned for 25 to 35 minutes using
similar tactics). It is another entirely to use them on Hughes, considering the details of the
interrogation, his age, inexperience, degree of maturity, drug usage, police trickery, and
promises and inducements. Consequently, Hughes was susceptible to coercion, and more
easily hoodwinked into ignoring or misunderstanding the consequences of his statements.
At this point, even the most innocent person might doubt their memory.
¶ 81 The dissent takes issue with much of our analysis, but–like the State in its brief–never
addresses the totality of the circumstances. No single factor is dispositive, and Hughes’
conviction rests not on evidence adduced through police investigation, but rather, on a
“confession” secured through pressure based on a dubious polygraph result. The dissent
notes that this case is similar to Eckles, where the circumstances surrounding the confession
were “extremely close.” Eckles, 128 Ill. App. 3d at 280 (Alloy, P.J., dissenting). But the facts
here are far more extreme than the facts in Eckles. In Eckles, the defendant was 19 years old
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with a tenth-grade education, and confessed after hearing lies similar to those told to Hughes.
See id. at 277-79 (majority opinion). Both cases involved an uneducated 19-year-old male.
But the interrogation in Eckles lasted less than half an hour, while Hughes’ interrogation
occurred over the course of 16 hours, with little food, minimal sleep, and numerous untruths
told by the investigating detectives. Had Hughes not used marijuana while in custody, the
totality of the circumstances still would require reversal and suppression. But given that fact,
which cannot be ignored, the involuntariness of Hughes’ confession to shooting Coleman is
even clearer. The use of an involuntary confession as substantive evidence of a defendant’s
guilt requires reversal. See People v. Woods, 184 Ill. 2d 130, 150 (1998).
¶ 82 The dissent suggests the evidence is not closely balanced because “Hughes and not his
co-defendant Skyles, fled the Chicago area after the murders.” Infra ¶ 140. But, Hughes, not
Skyles, killed Stanley, and the murder of Stanley sheds no light on whether Skyles or Hughes
shot Coleman. To repeat, Hughes told the detectives again and again that he did not shoot
Coleman. Only after the coercive circumstances already described did he provide a
confession.
¶ 83 The confession will be suppressed, and we reverse and remand for a new trial.
¶ 84 Presentence Custody
¶ 85 Hughes and the State agree that the trial court did not properly credit him for his
presentence custody. Under the Unified Code of Corrections, “the offender shall be given
credit on the determinate sentence or maximum term and the minimum period of
imprisonment for time spent in custody as a result of the offense for which the sentence was
imposed.” 730 ILCS 5/5-4.5-100(b) (West 2010).1 After the new trial, if he is convicted, the
trial court should credit Hughes for his custody starting October 26, 2006 until sentencing,
even if he receives a sentence of natural life in prison.
¶ 86 CONCLUSION
¶ 87 Accordingly, we reverse and remand for a new trial, and, if he is convicted, to credit
Hughes for his presentence custody.
¶ 88 Reversed and remanded.
¶ 89 JUSTICE MASON, dissenting.
¶ 90 The grounds Hughes now urges on appeal for suppression of his confession to Coleman’s
murder have been forfeited. Because I find no error in the admission of Hughes’ confession
to shooting Coleman, I respectfully dissent.
¶ 91 Although the boilerplate motion to suppress filed in the trial court by defense counsel
1
This subsection was amended from “time” to “the number of days” after Hughes was
sentenced, among other amendments. Pub. Act 97-697 (eff. June 22, 2012).
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urged every ground imaginable as a basis to suppress Hughes’ confessions to both murders,
defense counsel made clear prior to the suppression hearing that the basis upon which they
were proceeding was that Hughes was not given Miranda warnings in Michigan and that on
the ride from Michigan to Chicago, Detectives Ford and Lazzara interrogated him. This was
the focus of the evidence presented to the trial court and, consistent with that evidence, the
trial court made the factual findings and conclusions the parties requested it to address.
Defendant does not take issue with those findings in this appeal.
¶ 92 Neither in the suppression hearing nor in the posttrial motion did counsel assert the bases
for suppression of Hughes’ confession to Coleman’s murder now urged before us. The
posttrial motion merely states, “[t]he court erred in denying the motion to suppress.” Such
a motion is no more informative or specific than one that claims the trial court “improperly
instructed the jury” (but not identifying any particular erroneous instruction) or “abused its
discretion in admitting evidence” (but failing to specify what evidence the court erred in
admitting).
¶ 93 At the hearing on the motion, defense counsel, on the issue of reasonable doubt, argued
only that “there were misstatements” (unspecified) and “based on the fact that Mr. Hughes
was a very young person, just a teenager, and being pressured and held all night during the
time he was giving the statements,” Hughes’ confession was not reliable and, therefore, the
court should reconsider its finding of guilty. On this record, the conclusion that Hughes has
forfeited the grounds now urged as bases to suppress his confession is unavoidable. People
v. Enoch, 122 Ill. 2d 176, 186 (1988); People v. Bui, 381 Ill. App. 3d 397, 405 (2008).
¶ 94 The arguments now advanced by Hughes on appeal are clearly not the “same essential
claim” asserted by him in the trial court. Obviously, an evidentiary hearing in which the trial
court is asked to resolve whether a defendant was given Miranda warnings prior to
confessing is very different from one in which a defendant claims that during questioning
following the waiver of Miranda rights, officers engaged in misconduct that resulted in a
coerced confession. There is no apparent relationship between Hughes’ claim that Detectives
Ford and Lazzara failed to give him Miranda warnings at 2 p.m. in the afternoon–the ground
upon which he proceeded with the suppression hearing–and his claim on appeal that another
detective misled him more than 14 hours later.
¶ 95 The majority concludes that because (1) Hughes filed a pretrial motion to suppress his
confessions listing a number of generic grounds (among them, “psychological,” “mental,”
and “physical coercion”), (2) he filed a posttrial motion again containing a generic claim that
the trial court erred in denying the motion to suppress, and (3) the videotape of his
interrogation was introduced at the suppression hearing, he has the open-ended opportunity
on appeal to argue anything, notwithstanding that the State–not to mention the trial
court–was never given an opportunity to address or resolve these issues prior to trial. See
People v. Caballero, 102 Ill. 2d 23, 31-32 (1984) (“Without a post-trial motion limiting the
consideration to errors considered significant, the appeal is open-ended. Appellate counsel
may comb the record for every semblance of error and raise issues on appeal whether or not
trial counsel considered them of any importance.”). But criminal defendants can and do
forfeit issues and there is no reason here to relieve Hughes of the consequences of a finding
of forfeiture.
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¶ 96 A finding of forfeiture requires a reviewing court to engage in a plain error analysis.
People v. Taylor, 2011 IL 110067, ¶ 30. Our supreme court has recognized that the plain
error doctrine is a “narrow and limited exception to the general waiver rule.” (Internal
quotation marks omitted.) People v. Herron, 215 Ill. 2d 167, 177 (2005) (quoting People v.
Hampton, 149 Ill. 2d 71, 100 (1992)). The predicate to a discussion of plain error is the
determination that an error occurred in the trial court. People v. Walker, 232 Ill. 2d 113, 124-
25 (2009) (initial step in plain error analysis is to determine whether error occurred at all);
People v. Smith, 372 Ill. App. 3d 179, 181 (2007) (without error there can be no plain error).
Because I conclude that Hughes’ confession was properly admitted, there is no occasion to
consider either prong of the plain error equation.
¶ 97 In finding that Hughes’ confession to shooting Coleman was involuntary, the majority
has taken the opportunity to review the entirety of the circumstances of Hughes’ interrogation
and confessions de novo and to make factual determinations, none of which Hughes
requested the trial court to make and, in one significant respect, have not even been urged
by Hughes on appeal. Thus, the majority has taken on the role of fact finder, a function
incompatible with any recognized standard of review.
¶ 98 The majority’s analysis focuses on its review of the videotape of Hughes’ interrogation
from 4:16 p.m. on October 26, 2006, to 6:10 a.m. on October 27, 2006. I do not take the
position, as the majority suggests, that we should not review the videotape. Rather, while we
have an obligation to review the entire record (as we do in every appeal), my quarrel is with
the majority assuming the role of fact finder where no evidentiary hearing was held in the
trial court. I, too, have carefully reviewed this same videotape and come to conclusions
opposite those reached by the majority, a result which, in my view, underscores why
appellate tribunals do not engage in fact-finding.
¶ 99 First, I take issue with the majority’s decision to address an issue not raised by Hughes
on appeal. The majority finds, as a fact, that during the period from 1:49 a.m. to 2:15 a.m.,
when Hughes was left alone in the interrogation room, he smoked marijuana he had hidden
on his person and was, therefore, under the influence when he was taken for his polygraph
examination. The majority further finds that the detectives knew Hughes had smoked
marijuana, citing to the transcription of the interrogation and its interpretation of Detective
Ford’s comments and reaction upon reentering the interrogation room.
¶ 100 Hughes’ appellate briefs do not raise any claim that he was under the influence of
marijuana during his polygraph exam. No hearing was held on these issues in the trial court.
In no case cited by the majority has the reviewing court acted as the finder of fact as to issues
not raised by a defendant in the trial court. See People v. Woods, 184 Ill. 2d 130, 133-43
(1998) (reciting extensive evidence introduced at suppression hearing, including defendant’s
testimony regarding his treatment during interrogation); People v. Traylor, 331 Ill. App. 3d
464, 466-67 (2002) (same).
¶ 101 The majority’s decision to, sua sponte, raise this issue runs contrary to the teachings of
our supreme court in People v. Givens, 237 Ill. 2d 311 (2010). In Givens, the defendant, an
overnight guest at an apartment, raised several issues on appeal, including whether her trial
counsel was ineffective for withdrawing a motion to suppress evidence based on a claim that
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the tenant’s consent to the search was not voluntary. Rather than resolving the appeal on the
issues raised, the appellate court framed the issue as whether trial counsel was ineffective for
failing to pursue a motion to suppress based on the tenant’s lack of authority to consent to
a search of her guest’s bedroom and remanded the case with directions to hold another
suppression hearing and, if necessary, a new trial. Id. at 322-23.
¶ 102 On the State’s appeal, the supreme court reversed, finding that this court erred in raising
and addressing a theory never raised by defendant or addressed by the parties. Noting it well
settled that “ ‘a reviewing court should not normally search the record for unargued and
unbriefed reasons to reverse a trial court judgment’ ” (emphasis in original) (id. at 323
(quoting Saldana v. Wirtz Cartage Co., 74 Ill. 2d 379, 386 (1978))), the court concluded that
“the appellate court stepped over the line from neutral jurist to that of an advocate for
defendant to raise and rule on issues that were neither controlled by clear precedent nor
dictated by an interest in a just result.” Givens, 237 Ill. 2d at 325.
¶ 103 “ ‘[Courts] do not, or should not, sally forth each day looking for wrongs to right. We
wait for cases to come to us, and when they do we normally decide only questions presented
by the parties. Counsel almost always know a great deal more about their cases than we do
***.’ ” Greenlaw v. United States, 554 U.S. 237, 244 (2008) (quoting United States v.
Samuels, 808 F.2d 1298, 1301 (8th Cir. 1987) (Arnold, C.J., concurring in denial of
rehearing en banc)).
¶ 104 The Givens court acknowledged that while an appellate tribunal certainly has the
authority to raise issues sua sponte, it should generally refrain from doing so except in the
case of obvious errors controlled by binding precedent. As an example, the court cited a trial
court’s conviction of a defendant on four separate counts of murder in a case involving a
single murder. Givens, 237 Ill. 2d at 328.
¶ 105 Here, even assuming Hughes smoked marijuana in the interrogation room (and I have
serious reservations on that point, discussed below), there is no binding precedent that holds
that if a criminal suspect has ingested a controlled substance prior to the time a polygraph
exam is administered, any statements made to the polygraph examiner are per se coerced.
The majority does not cite any such precedent. In fact, whether and to what extent ingestion
of any substance, whether it be alcohol, prescription medicine, or an illegal drug, affected the
voluntariness of a confession is an inherently fact-bound determination that must in the first
instance be raised and presented to a trier of fact for resolution. See People v. Kincaid, 87
Ill. 2d 107, 119 (1981) (“[T]he fact that an accused is under the influence of drugs, self-
administered or otherwise, when he makes a confession does not make the confession
inadmissible automatically. It is still the province of the trial court to ascertain whether the
accused’s will was overborne at the time the confession was made.” (Emphasis added.));
United States v. Haddon, 927 F.2d 942, 946 (7th Cir. 1991) (rejecting per se test: “when the
interrogating officers reasonably should have known that a suspect is under the influence
of drugs or alcohol, a lesser quantum of coercion may be sufficient to call into question the
voluntariness of the confession” (emphasis added)). Thus, under Givens, I strongly believe
that because Hughes has not raised this issue on appeal, neither should we.
¶ 106 Second, even if it is appropriate for appellate courts to sua sponte identify without
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resolving issues that have not been raised by the parties in order that they may be addressed
in a hearing on remand (see People v. Rodriguez, 336 Ill. App. 3d 1, 13-14 (2002)), the
majority does not remand this matter for hearing on the new issues raised by Hughes on
appeal, but instead orders a new trial based on its finding that Hughes’ confession was
coerced, thus bypassing any opportunity for a trier of fact to hear and evaluate evidence and
make factual findings based on that evidence.
¶ 107 Further, Hughes’ alleged ingestion of marijuana in the interrogation room is not, in my
view, the type of issue that a reviewing court should raise sua sponte. The physical condition
of a suspect being interrogated is an issue often raised by defense counsel in challenging the
voluntariness of a confession. Indeed, it was one of the laundry list of grounds included, but
not pursued, in defense counsel’s motion to suppress in this case. The issue is neither esoteric
nor novel. Able defense counsel do not need our help in deciding whether to pursue such an
issue based on the circumstances of a suspect’s interrogation, particularly where there is a
videotape recording of the entire interrogation. The experienced trial judge reviewed the
videotape and did not identify the issue the majority now addresses.
¶ 108 Third, my examination of the videotape of Hughes’ interrogation reinforces my belief
that the majority errs on this point. At 12:45 a.m., while Hughes was alone in the
interrogation room, the videotape shows him pulling something out of his pants. The
crackling of paper can be heard although Hughes’ back is to the camera. He appears to be
licking the paper and at 12:47 a.m., he puts whatever he took out back into his pants.
¶ 109 Hughes and the two detectives can be seen smoking cigarettes at various times
throughout the interrogation. Cigarette butts were thrown on the floor of the room. At 1:48
a.m., the detectives gave Hughes a cigarette and turned out the lights in the room after telling
him they would be back in the morning to take him for his polygraph.
¶ 110 The black and white videotape shows Hughes smoking the cigarette for several minutes,
then, at 1:54 a.m., using it to light something he has taken out of his pants. At that point,
Hughes has two lit items in his hands, which he alternately smokes. At 1:55 a.m., Hughes
can be seen bending down and running his hand around the floor by the table where he and
the detectives had been sitting, picking something up off the floor and using one of the items
he had lit in his hand to light what he has picked up. At 1:57 a.m., Hughes puts something
behind the bench in the room and continues to smoke. At 2:02 a.m., he again goes over to
the area around the table, runs his hand over the floor, picks something up off the floor and
again uses whatever he had lit in his hand to light what he has picked up. He continues to
smoke for another minute and lies down on the bench at 2:03 a.m. At 2:04 he takes whatever
he put behind the bench, puts it in his pants and lies down again.
¶ 111 The detectives reentered the interrogation room 11 minutes later at 2:15 a.m. The
majority quotes from the transcript of the videotape and concludes that when Detective Ford
entered the room, he must have smelled marijuana and asked Hughes, “What were you
smoking? Buds [marijuana]?” (the word “marijuana” appears nowhere in the transcript) to
which Hughes responded, according to the transcript, “Yeah, smoking buds.” See supra ¶ 30.
The majority then criticizes what it interprets as Ford’s nonchalant reaction to the fact that
Hughes had a controlled substance in the interrogation room, the implication being perhaps
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that the detectives were watching Hughes from a remote location and decided to advance the
polygraph exam knowing that he would be particularly vulnerable having just smoked
marijuana. The majority evidently also believes, without so stating, that the detectives,
knowing that Hughes just admitted having a controlled substance on his person and seeing
on the videotape that he put something in his pants, would accept his representation that he
had smoked his last “bud” and would, therefore, refrain from searching either him or the
room to confirm that fact and remove any contraband. The videotape reveals no such search.
¶ 112 The majority’s conclusions regarding what transpired in the interrogation room may have
been warranted had an evidentiary hearing been conducted in the trial court during which:
(1) the detectives testified as to what they smelled upon entering the room; (2) Ford
confirmed that he said “buds”; (3) Ford testified that he meant marijuana when he referred
to “buds”; (4) evidence was presented regarding how much marijuana Hughes actually
smoked; and (5) evidence was presented regarding Hughes’ physical condition immediately
after smoking the marijuana, 1½ hours later when he started the polygraph exam, and 3½
hours later when he confessed to shooting Coleman. Yet none of these issues were raised by
Hughes, much less resolved by a finder of fact.
¶ 113 The majority’s suggestion that the uncertified transcript of the interrogation prepared by
an unidentified employee of the Chicago police department is somehow “binding” on the
prosecution is misplaced. Because of the quality of the audio-visual equipment used in
videotaping interrogations, trial counsel often disagree about the correct transcription of
statements made by the participants during interrogations. Indeed, the majority cites to an
instance where Hughes claims he said something other than the words reflected in the
transcript. Courts frequently resolve discrepancies regarding the accuracy of a transcript of
a recorded statement prior to trial and, importantly, after an evidentiary hearing. See United
States v. Howard, 80 F.3d 1194, 1199 (7th Cir. 1996) (objections to government’s transcript
of recorded statements involving defendant and informant appropriately resolved via a
pretrial hearing); United States v. Zambrana, 841 F.2d 1320, 1336 (7th Cir. 1988) (same re
translation of recorded conversations in Spanish to English: if parties cannot stipulate to
contents of transcript, “ ‘then each side should produce its own version of the disputed
portions. In addition, each side may put on evidence supporting the accuracy of its version
or challenging the accuracy of the other side’s version’ ” (quoting United States v. Howard,
603 F.2d 506, 509 (5th Cir. 1979))). Here, not only does the majority attribute nonsensical
statements to Ford (“You’re smoking in here now that we’re all sitting in here smoking.”),
but it then interprets the word “buds” to conclude that Ford meant marijuana and must have
known that Hughes had just smoked marijuana. This is the province of the trial court, not a
court of review.
¶ 114 Having watched and listened to the videotape several times, it is just as likely in my view
that the following is an accurate transcription of the exchange between Ford and Hughes:
“Q. It’s smokier in here now than when we were all sitting in here smoking. Were
you smoking butts?
A. Yeah, butts.
Q. How’d you get it lit?
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A. Off the one I had I just kept smoking ’til I fell to sleep. That’s the last one I had
right there.”
This, of course, would explain Ford’s low-key reaction as well as the detectives’ failure to
search Hughes or the interrogation room.
¶ 115 The point is that reasonable people can look at the video of an interrogation and, without
explication or explanation, come to different conclusions regarding what is shown. This only
highlights why a reviewing court should not engage in this exercise.
¶ 116 Independent of the foregoing issue, I also disagree with the majority’s analysis of the
factors relevant to a determination of whether Hughes’ confession was voluntary. As the
majority notes, the relevant factors include: (1) the defendant’s age, education, experience
and physical condition at the time of the detention and interrogation; (2) the duration of the
interrogation; (3) the presence of Miranda warnings; (4) the presence of any physical or
mental abuse; and (5) the legality and duration of the detention. People v. Harris, 2012 IL
App (1st) 100678, ¶ 63. A trial court’s factual findings made after an evidentiary hearing on
a motion seeking to suppress a confession are reviewed under the manifest weight of the
evidence standard. The court’s conclusion regarding the voluntariness of a confession is
reviewed de novo. People v. Murdock, 2012 IL 112362, ¶ 29.
¶ 117 Here, wholly apart from addressing an issue not raised by Hughes, the majority engages
in a detailed factual analysis of the contents of the videotape as if an evidentiary hearing
addressing these issues had been conducted in the trial court, which, of course, it was not.
Therefore, it is unclear under what standard the majority is reaching the conclusions it finds
warrant reversal. See People v. Deleon, 227 Ill. 2d 322, 332 (2008) (finding is against the
manifest weight of the evidence “only if the opposite conclusion is clearly evident or if the
finding *** is not based on the evidence presented”). However, even if it was appropriate for
us to search the videotape in an effort to identify and resolve issues regarding the facts and
circumstances of Hughes’ interrogation, I could not agree that such review supports the
conclusion that the motion to suppress was wrongly denied or that the matter should be
remanded for a hearing on the new issues raised by Hughes on appeal.
¶ 118 Hughes received Miranda warnings several times during his interrogation and his
detention and its duration were legal. Thus, these factors weigh in favor of a finding that
Hughes’ confession to killing Coleman was voluntary.
¶ 119 The majority cites Hughes’ age (19), education (ninth grade), and his lack of prior
experience with the criminal justice system as factors that weigh in favor of a finding that
his confession to Coleman’s murder was involuntary. But despite the fact that Hughes was
a teenager, he was clearly an adult for purposes of his criminal prosecution and a 19-year-old
with a minimal education is capable of voluntarily confessing. See People v. Eckles, 128 Ill.
App. 3d 276 (1984) (19-year-old with tenth-grade education).
¶ 120 Eckles, cited by the majority, is actually quite analogous to this case. The court in Eckles
noted that the 19-year-old defendant confessed after an interrogation that lasted 25 to 35
minutes. Here, the videotape reveals that after the detectives began questioning Hughes at
4:16 p.m., 16 minutes later, at 4:32 p.m., he admitted that he acted as the lookout when
Coleman was murdered, and three minutes after that, at 4:35 p.m., he admitted that he knew
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in advance about the plan to murder Stanley and was present in the alley at the time it took
place. Thus, Hughes implicated himself in both murders in under 20 minutes.
¶ 121 One of the reasons Eckles was a “close case” was that the defendant testified at the
suppression hearing that he confessed to committing the crime so that the officer “might help
make things go easier for him” and the officer denied making any promises of leniency.
Eckles, 128 Ill. App. 3d at 280 (Alloy, P.J., dissenting). Here, Hughes elected not to testify
at the suppression hearing and, therefore, there is no basis in the record from which we can
discern his reasons for admitting to shooting Coleman. Figueroa-Mitchell certainly did not
promise that Hughes would be treated more leniently if he confessed. We do know, however,
that the crimes Hughes confessed to did occur and that his voluntary statements rendered him
legally responsible for both murders regardless of whether he actually shot Coleman, thus
eliminating any concern over a “false” confession by an innocent individual.
¶ 122 Further, Hughes’ juvenile record, while not extensive, did involve a finding on an
unlawful use of a weapon charge, a serious offense. We do not know, again because Hughes
failed to raise the issue in the trial court, whether Hughes went to trial or pled guilty on these
juvenile matters, but the majority finds, without any evidentiary basis, that Hughes had no
meaningful prior experience in understanding and waiving his rights.
¶ 123 In my view, the majority’s finding regarding Hughes’ experience is undercut by the
videotape of Hughes reading, at Ford’s direction, the consent to take a sample of his DNA.
Despite his ninth-grade education, on the videotape Hughes pronounces without hesitation
the following words and phrases: “constitutional,” “judicial order,” “biological evidence,”
“appropriate laboratories,” and “legitimate law enforcement purposes.” He stumbles only
over the words, “analysis” and “prosecutorial.” In State v. Skillicorn, 944 S.W.2d 877 (Mo.
1977), cited by the majority, the court found that defendant’s inability to pronounce the word
“coercion” did not indicate that his lack of understanding of his rights rendering confession
involuntary. But obviously Hughes’ ability to pronounce without hesitation complex words
and phrases undercuts any conclusion that his ninth-grade education left him unable to
understand and waive his rights.
¶ 124 Moreover, despite Hughes’ lack of experience with the criminal justice system, he readily
understood the concept of accountability, complaining several times throughout the
interrogation that Skyles’ girlfriend was “just as accountable as me” because she knew
everything in advance about the robbery of Coleman and the murder of Stanley. If, as the
majority concludes, Hughes’ first encounter with the legal doctrine of accountability was
during his interrogation when Ford explained it to him, he was certainly a quick study.
¶ 125 Hughes’ “regular substance abuse,” i.e., his self-reported daily use of marijuana, was first
made known to the trial court in his pre-sentence investigation report. Thus, it is
inappropriate for us to consider this in connection with a challenge to a ruling on a motion
to suppress. See Murdock, 2012 IL 112362, ¶¶ 36-37; People v. Brooks, 187 Ill. 2d 91, 108-
09 (1999) (evidence adduced at trial should not be considered on appeal for purposes of
reversing a ruling on a motion to suppress; proper procedure would have been for trial
counsel to request reconsideration on motion to suppress). Furthermore, on the videotape,
Hughes is alert, loquacious and cooperative, at least until he realizes that he can no longer
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minimize his involvement in Coleman’s murder. He does not complain to the detectives that
he does not understand their questions or inform them that he is in any way impaired. Thus,
I cannot agree that Hughes’ age, education and experience weigh in favor of finding that his
confession to Coleman’s murder was involuntary.
¶ 126 The length of Hughes’ interrogation also does not support a finding of involuntariness.
Despite the fact that Hughes was held (properly) and interrogated from 4:16 in the afternoon
until shortly after 6:10 a.m. the next day, the length of time he was actually questioned
amounts to under three hours. The longest period of examination lasted less than one hour.
The videotape shows that Hughes was left alone for long stretches of time, was allowed to
go to the bathroom, was provided food and drink, and during one extended interval during
the evening, slept for roughly 3½ hours. See People v. Rosemond, 339 Ill. App. 3d 51, 62
(2003) (where defendant’s questioning interspersed with breaks and not continuous, and
where he was given food and drink, “there is little basis to conclude that the confession
resulted from the duration of the interrogation”).
¶ 127 The majority’s finding that Hughes’ obvious state of “exhaustion” prompted him to
confess in response to Detective Figueroa-Mitchell’s exhortations to tell the truth2 is belied
by the portions of the videotape after Hughes returns to the interrogation room and reiterates
to Ford his confession to killing Coleman. After the detectives leave the interrogation room
at approximately 6:10 a.m., the videotape shows Hughes awake for a majority of the time.
He sleeps for only about one hour between the time he returns to the room and 10:24 a.m.,
when he is taken from the room. This factor likewise does not weigh in favor of a finding
that Hughes’ confession to killing Coleman was involuntary.
¶ 128 The majority cites the “coercive atmosphere” created by the fact that Hughes’ hands were
handcuffed behind his back during the approximately 1½-hour ride from Kalamazoo to
Chicago. The record reveals that the detectives traveled to Michigan in a rental car, a vehicle
that presumably was not equipped with the normal safety features of a police squad car.
Under such circumstances, it would have been foolhardy for the detectives to transport a
double-murder suspect in any other way. Furthermore, the handcuffs were removed upon
Hughes’ arrival at the interrogation room. The majority does not explain how the “coercive
atmosphere” created during a car ride in the afternoon had any effect on Hughes’ confession
to shooting Coleman made nearly 16 hours later.
¶ 129 The fact that Hughes confessed to shooting Coleman at approximately 5 a.m., after being
awake most of the night, while relevant, does not, under the circumstances of this case,
compel a finding of involuntariness. The only case cited by the majority, People v. Travis,
2013 IL App (3d) 110170, is a case involving a 15-year-old juvenile. In Travis, prior to the
late-night interview in which defendant confessed to the murder, he told the detectives, “ ‘I
2
Again, as long as we are analyzing the videotape, I would attribute the change in Hughes’
demeanor during Figueroa-Mitchell’s questioning and particularly after she informed him he failed
the polygraph, as reflecting the sobering realization that he could no longer avoid admitting that he
shot Coleman. But again, we have no evidence in the record, and certainly no testimony from
Hughes, from which we can infer the reason he decided to confess.
-27-
don’t even want to talk to you no more.’ ” Id. ¶ 16. Notwithstanding defendant’s expression
of unwillingness to continue to talk to them and after defendant had fallen asleep, the
detectives reentered the room, woke defendant and immediately began to interrogate him.
Prior to defendant’s confession, one of the detectives made misleading promises of leniency
to the defendant by suggesting that “ ‘everybody gets a clean slate at 17’ ” when he knew
defendant would be charged as an adult. Id. ¶¶ 18-19. This court concluded that under the
totality of the circumstances, defendant’s confession was not voluntary.
¶ 130 Travis provides no support for the result reached by the majority. Aside from the fact that
Travis involved a confession by a juvenile, which implicates “sensitive concerns” not present
here, People v. Prude, 66 Ill. 2d 470, 476 (1977), throughout the period of time Hughes was
interrogated, he never expressed any reluctance to speak to the detectives. He never told the
detectives that he was too tired to continue or to take the polygraph exam. As noted, quite
early on, Hughes implicated himself in both murders. The progress of his interrogation
thereafter reveals that he endeavored to minimize his involvement revealing, first, that he
acted as a lookout when Coleman was murdered and that he knew of the plans and was
present for Stanley’s murder. Second, Hughes admitted that he disposed of the .357 magnum
used in Stanley’s murder. Third, Hughes admitted killing Stanley. Finally, Hughes admitted
shooting Coleman in the legs with the .357 magnum. No promises of leniency prompted
Hughes to make these admissions. In fact, Detective Ford told him that based on the
admissions made less than 20 minutes after the interrogation began, he could be charged with
both murders. Travis provides no support for a finding that Hughes’ confession to shooting
Coleman was involuntary.
¶ 131 The majority notes that Hughes was grieving for his grandfather during the interrogation,
but concludes that this does not weigh in favor of a finding that his confession was
involuntary. I agree. Although Hughes had just learned of his grandfather’s death, he had
passed away months before Hughes was arrested, and, therefore, Hughes must not have
talked to him in at least that period of time. The recollection of his grandfather prompted
Hughes to admit only to the fact that he disposed of the .357 magnum. Further, within
minutes of Hughes asking Ford whether his grandfather died peacefully, Hughes can be seen
on the videotape laughing with the detectives about the fact that Skyles’ girlfriend (who after
Stanley’s murder went to the police station to report her car, found at the scene with license
plates on it registered to Hughes, stolen) was kept at the police station and questioned for 72
hours, saying that “she crack like an egg.” Finally, although the videotape shows Hughes
pacing the interrogation room after he admitted disposing of the gun and talking out loud to
his grandfather, the same segment shows him commenting, more than once, about the fact
that his best friend, Cordell, nicknamed Boo, had talked to the police about everything
Hughes had told him, saying “Boo stool pigeon. I knew Boo was gonna tell.”
¶ 132 Finally, my colleagues fault Hughes’ interrogators and, in particular, Detectives Ford and
Figueroa-Mitchell, for “lies” they told Hughes, which the majority concludes render Hughes’
confession involuntary. Deceit perpetrated by police interrogators is certainly a relevant
consideration in determining whether a suspect’s confession was voluntary, but like any other
factor, it is not determinative. People v. Melock, 149 Ill. 2d 423, 450 (1992) (“While
deception weighs against a finding of voluntariness and is relevant, it is but one factor to be
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considered within the totality of the circumstances in determining voluntariness. [Citations.]
The fact that a confession was procured by deception or subterfuge does not invalidate the
confession as a matter of law.”). Other courts considering claims that misstatements by
police coerced the accused’s confession have concluded that “[o]f the numerous varieties of
police trickery *** a lie that relates to a suspect’s connection to the crime is the least likely
to render a confession involuntary.” Holland v. McGinnis, 963 F.2d 1044, 1051 (7th Cir.
1992). Addressing a claim that the suspect’s confession was coerced because police
misinformed him that witnesses had seen his car in the alley where the victim was raped, the
Seventh Circuit commented:
“Such misrepresentations, of course, may cause a suspect to confess, but causation alone
does not constitute coercion; if it did, all confessions following interrogations would be
involuntary because ‘it can almost always be said that the interrogation caused the
confession.’ Miller v. Fenton, 796 F.2d 598, 605 (3d Cir.), cert. denied, 479 U.S. 989
*** (1986). Thus, the issue is not causation, but the degree of improper coercion, and in
this instance the degree was slight. Inflating evidence of Holland’s guilt interfered little,
if at all, with his ‘free and deliberate choice’ of whether to confess [citation], for it did
not lead him to consider anything beyond his own beliefs regarding his actual guilt or
innocence, his moral sense of right and wrong, and his judgment regarding the
likelihood that the police had garnered enough valid evidence linking him to the crime.
In other words, the deception did not interject the type of extrinsic considerations that
would overcome Holland’s will by distorting an otherwise rational choice of whether to
confess or remain silent.” (Emphasis added.) Id.
See also State v. Lapointe, 678 A.2d 942, 961 (Conn. 1996) (detective informed suspect that
suspect’s prints had been found on handle of knife used to stab the victim, even though no
prints had actually been found; confession determined voluntary).
¶ 133 Although the majority refers to “lies” by Detectives Ford and Figueroa-Mitchell, the
opinion focuses only on the latter. While there is mention of Ford’s statement to Hughes that
Coleman died of his leg wounds and not the head wound, the majority does not draw a
connection between this statement, made at 12:27 a.m., and Hughes’ confession to shooting
Coleman, made 4½ hours later. And, in fact, there is simply no apparent causal or temporal
connection that can be inferred from this isolated statement.
¶ 134 The majority places primary emphasis on the statements made by Detective Figueroa-
Mitchell in the course of her polygraph exam. I can find nothing on the videotape or in the
transcript of her interaction with Hughes that would support a finding that Hughes was
coerced by Figueroa-Mitchell into admitting he shot Coleman. Figueroa-Mitchell repeatedly
encourages Hughes to tell the truth. There is no case that even remotely suggests that such
exhortations are coercive. See People v. Valle, 405 Ill. App. 3d 46, 51 (2010) (detective told
murder suspect to “ ‘get it off his chest’ ” and that the best thing he could say is “ ‘I screwed
up’ ”). Figueroa-Mitchell was entitled to appeal to Hughes’ “moral sense of right and
wrong.” Holland, 963 F.2d at 1051.
¶ 135 Although Figueroa-Mitchell makes reference to going to court, she never states or
implies that she would be helpful to Hughes or that confessing to shooting Coleman would
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result in more lenient treatment. After administering the polygraph, Figueroa-Mitchell
informs Hughes: “This one question LB [Hughes’ nickname] I asked you–I said did you have
a gun in that house the whole test you just dropped to the floor. I don’t know why. I wasn’t
there but according to this it ain’t truth. You did have one. And I don’t know why you would
tell me no.” After telling Hughes “I’m fighting for you over here,” Figueroa-Mitchell informs
him, “I’m trying to get you to say I’m sorry. *** ’Cause believe me they [the police] already
got facts.” A few seconds later, Figueroa-Mitchell asks, “I’m just asking you was this a
mistake?,” to which Hughes replies, “Yes.” A short time later, Hughes, who was by then
crying, admitted that he shot Coleman in the legs. The transcript reflects that Figueroa-
Mitchell successfully appealed to Hughes’ sense of guilt and remorse and that she did not
coerce his confession to shooting Coleman by interjecting “extrinsic considerations”
designed to override his free will.
¶ 136 There is also no suggestion in the record that Figueroa-Mitchell lied about the results of
Hughes’ polygraph. Thus, the majority’s citation of Melock on this point is misplaced. In
Melock, the evidence presented during the suppression hearing showed that the polygraph
administered to defendant yielded no result. Melock, 149 Ill. 2d at 449-50 (detective’s
accusation regarding defendant’s culpability, “coupled with his false statement concerning
the nonexistent results, clearly suggested to defendant that he had lied”). Thus, when the
detective informed defendant that he had “failed” the polygraph, that statement was
demonstrably false. Here, nothing in the record suggests that Figueroa-Mitchell’s statement
regarding the results of the polygraph was incorrect.
¶ 137 Despite what he must have realized was extraordinarily damning evidence against him,
Hughes persisted in his denial that he shot Coleman throughout his interrogation. It was only
after Figueroa-Mitchell accurately informed him that he had failed the polygraph that Hughes
decided to confess.
¶ 138 The scenario involving a suspect who confesses after being confronted with the results
of a polygraph examination is not unusual and the use of this investigative technique is not,
as the majority suggests, improper or inherently coercive. More than 30 years ago, the United
States Supreme Court recognized the use of polygraph examinations in criminal
investigations and found that a suspect’s incriminating statements were not coerced when
they were made to the polygraph examiner after being confronted with the results of the
exam showing that he had not been truthful. Wyrick v. Fields, 459 U.S. 42, 48-49 (1982).
Specifically, the Court found it “unreasonable” to assume that defendant “would not be
informed of the polygraph readings and asked to explain any unfavorable result.” Id. at 47.
The Court also recognized that although the results of the polygraph examination were not
admissible, the defendant’s responses to questions by the examiner, like those made to any
other law enforcement officer, were admissible. Id. at 48. See also Keiper v. Cupp, 509 F.2d
238, 240 (9th Cir. 1975) (finding statements made by emotional, weeping suspect after being
informed that the results of the polygraph showed “gross deceptive patterns” were not
coerced).
¶ 139 Detective Figueroa-Mitchell did not, as the majority finds, “cloak herself with the
imprimatur of certainty.” She informed Hughes of the results of the polygraph, which
indicated that with respect to the question of whether he had a gun when he was in
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Coleman’s house, Hughes’ involuntary responses suggested he had lied. There is nothing
improper and, more importantly, coercive about this accurate information. Figueroa-Mitchell
simply informed Hughes, as Ford had numerous times during the interrogation, that she did
not believe he was telling the truth about shooting Coleman.
¶ 140 The evidence in this case was not, as the majority finds, “closely balanced.” Thus, even
if the admission of Hughes’ confession was error, it was clearly harmless error. See People
v. Wrice, 2012 IL 111860, ¶ 71 (recognizing that under Arizona v. Fulminante, 499 U.S. 279
(1991), confessions, other than those induced by physical coercion, are subject to harmless
error analysis). Hughes, not his codefendant Skyles, fled the Chicago area after the murders.
By the time Hughes was apprehended in Michigan, some 11 months after the crimes, the
police had arrested Skyles, charged him with both murders and obtained statements from him
implicating Hughes. They had talked to Skyles’ girlfriend who, according to Hughes, knew
“everything” about both murders, and they had talked to Hughes’ best friend Boo and
brought him before a grand jury where Boo detailed all of Hughes’ admissions to his
involvement in the murders, including shooting Coleman. Temporary license plates
registered to Hughes were on the car found in the alley where Stanley was shot. Inside the
car was a hat with Hughes’ DNA on it. The police knew that Stanley was murdered because
Skyles, Skyles’ girlfriend and Hughes were afraid Stanley would talk to the police. The
police told Hughes about all the foregoing evidence they had and those representations were
absolutely true.
¶ 141 Moreover, Hughes readily implicated himself in both murders (and thus rendered himself
fully accountable for those crimes) under circumstances the majority concedes render those
statements voluntary. Hughes admitted that the “plan” to rob Coleman from its inception
included shooting the person who answered the door at Coleman’s residence, albeit on the
assumption that it would be an armed drug dealer. Thus, even without Hughes’ final
admission that he shot Coleman in the legs, a jury could readily have found him guilty of
Coleman’s murder. The evidence against Hughes was overwhelming. Given the substantial
evidence of Hughes’ guilt, the admission of his confession to shooting Coleman, if error at
all, was clearly harmless.
¶ 142 Nothing about Hughes or the totality of the circumstances of his interrogation lead me
to conclude that his confession to shooting Coleman was involuntary. I would find that
Hughes has forfeited review of the issues he raises on appeal and because the admission of
his confession was proper, I would affirm his conviction.
¶ 143 For the foregoing reasons, I respectfully dissent.
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