People v. McFadden ( 2021 )


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    2021 IL App (5th) 170139-U
    NOTICE
    NOTICE
    Decision filed 09/16/21. The
    This order was filed under
    text of this decision may be              NO. 5-17-0139
    Supreme Court Rule 23 and is
    changed or corrected prior to
    not precedent except in the
    the filing of a Petition for                 IN THE                         limited circumstances allowed
    Rehearing or the disposition of
    under Rule 23(e)(1).
    the same.
    APPELLATE COURT OF ILLINOIS
    FIFTH DISTRICT
    ______________________________________________________________________________
    THE PEOPLE OF THE STATE OF ILLINOIS,            )     Appeal from the
    )     Circuit Court of
    Plaintiff-Appellee,                       )     Madison County.
    )
    v.                                              )     No. 13-CF-964
    )
    LaROYCE McFADDEN,                               )     Honorable
    )     Richard L. Tognarelli,
    Defendant-Appellant.                      )     Judge, presiding.
    ______________________________________________________________________________
    JUSTICE VAUGHAN delivered the judgment of the court.
    Justice Barberis concurred in the judgment.
    Justice Wharton dissented.
    ORDER
    ¶1       Held: Counsel did not provide ineffective assistance of counsel for failing: (1) to file a
    motion to suppress defendant’s statements, (2) to present impeachment evidence
    and argument against gunshot residue test results, or (3) to object to certain
    evidence and comments of the State. The trial court’s imposition of a 50-year
    sentence complied with the federal and state constitutions.
    ¶2       Defendant, LaRoyce McFadden, was convicted of first degree murder for killing a boy
    with a firearm when he was 17 years old. He appeals his conviction, arguing that (1) counsel was
    ineffective for failing to file a motion to suppress his statements to police, (2) he was prejudiced
    by the cumulative effect of additional errors by defense counsel, and (3) his sentence violates the
    federal and state constitutions.
    1
    ¶3                                  I. BACKGROUND
    ¶4     On May 1, 2013, 13-year-old Clayton Veninga was shot to death while sitting on the porch
    of a friend’s home in Granite City, Illinois. Three other persons—Mahmoud Ramlawi, known as
    Tudy; Tudy’s mother, Tammy Ramlawi; and Blaine Buchanan—were all sitting on the front porch
    of the Ramlawis’ home when the events at issue occurred. The following morning, after
    defendant’s car broke down while driving back to Granite City from Centreville, Illinois, police
    picked defendant up and transported him to the Granite City Police Department.
    ¶5     Defendant was taken to an interview room at 12:20 in the afternoon. Detectives Brian
    Koberna and Gary Brooks entered the interview room shortly thereafter. Detective Brooks told
    defendant that he was being recorded, asked defendant for personal information, and then provided
    defendant with the warnings required by Miranda v. Arizona, 
    384 U.S. 436
     (1966).
    ¶6     Defendant told the detectives that he was aware that his name had “popped up” in relation
    to a murder in Granite City the previous night. Defendant acknowledged that he went to his
    mother’s house in Granite City the previous evening to take a shower and change his clothes. We
    note that defendant’s mother’s house is located a few blocks from the Ramlawis’ house. Defendant
    stated that he knew of Tudy and spoke with him once, but that he did not know him well. Defendant
    denied having a “beef” with Tudy but claimed that other people stole weed from Tudy’s friends.
    He acknowledged that he walked down Tudy’s street with his brother and cousin to get to his
    mother’s house. He further acknowledged that he walked by two more times later that evening
    when he attempted to go to a friend’s house but turned around and went home. Defendant stated
    that when he walked by Tudy’s house, he noticed people on the front porch, but did not know who
    or how many people.
    2
    ¶7      Approximately 30 minutes into the interview, Detective Brooks told defendant that there
    were many ways for police to verify what defendant told them. He told defendant that there were
    security cameras all over Granite City. He also indicated that other witnesses had already told
    police both that defendant was in the neighborhood when the murder occurred and that he had a
    “beef” with Tudy. Defendant continued to deny any involvement in the murder. Both detectives
    repeatedly stated that they already knew what happened and that defendant was not telling the
    whole truth.
    ¶8      Approximately 39 minutes into the interview, Detective Koberna asked defendant, “Did
    you mean for what happened to happen or was it an accident?” Defendant replied, “I know for a
    fact that I didn’t do nothing.” Detective Brooks then asked defendant if he had ever shot a gun.
    Defendant began to fidget with his shirt, but he indicated that he had shot a gun. When asked how
    recently he had shot a gun, defendant said the last time was probably the beginning of the previous
    year. Detective Brooks suggested that he might perform a gunshot residue test on defendant. At
    this point, defendant offered to take a lie detector test. Detective Brooks responded, “That’s a
    possibility.”
    ¶9      Next, defendant pulled his shirt up over his face and said something, but it is not clear on
    the recording what he said. Detective Brooks asked, “Excuse me?” Defendant began to answer,
    saying, “I don’t wanna talk no more ‘cause y’all make it seem like I just—” At this point, Detective
    Koberna interrupted, telling defendant, “I want to hear what happened; that’s why we are here.”
    The detectives continued to question defendant, asking him to start from the beginning.
    ¶ 10    Approximately 45 minutes into the interview, Detective Koberna stated that he had been
    doing this a long time, and indicated he believed that people were threatening defendant and
    3
    defendant just wanted to get them away. Defendant asked if he could just talk to Detective Brooks
    because he felt that Detective Koberna was being accusatory. Detective Koberna left the room.
    ¶ 11   One minute later, Detective Brad Skalsky entered the interview room, bringing with him a
    gunshot residue test kit. Detective Brooks asked defendant if he was willing to submit to a gunshot
    residue test. Initially, defendant agreed to do so. While Detective Brooks prepared the test, he
    continued to question defendant. In response to questioning about the test, defendant indicated that
    he used hand sanitizer after using the restroom just before the interview began. In response to
    questioning about the murder, defendant told Detective Brooks that the people sitting on the porch
    told him to leave the block.
    ¶ 12   Approximately 50 minutes into the interview, defendant asked, “Can I wait for my lawyer
    to do this? Can I get a lawyer? I don’t even wanna talk no more.” Detective Brooks replied, “Well
    that’s up to you.” Defendant said, “I just wanna call my mama and stuff and tell her to get me a
    lawyer.” Detective Brooks asked defendant, “So you don’t want to do this then?” Defendant
    indicated that he did not want to take the test and that he needed a lawyer because he did not know
    what to say.
    ¶ 13   The detectives left the room. Ten minutes later, Detective Brooks returned and told
    defendant that he would be kept in the interview room because there was no other place to put him.
    Detective Brooks also brought defendant a piece of pizza and a blanket. He told defendant to knock
    on the door if he needed anything. Detective Brooks then left. As soon as he closed the door,
    defendant knocked on the door, and Detective Brooks opened the door and walked back into the
    room. Defendant asked, “Is my mama here?” He then asked if Detective Brooks could call her and
    tell her to come. Detective Brooks stated that he did not know whether defendant’s mother was
    there. He then said, “She’s not going to be allowed to talk to you right now.”
    4
    ¶ 14    An hour later, Detective Brooks returned to the interview room and told defendant he
    would be kept in the interview room until police obtained a search warrant to conduct a gunshot
    residue test. Detective Brooks again instructed defendant to knock on the door if he needed
    anything. After being in the interview room for roughly four hours, Detective Brooks checked on
    defendant again and took defendant to go to the bathroom. Approximately 32 minutes later,
    Detective Brooks returned to perform the gunshot residue test. When he finished, Detective Brooks
    informed defendant that he was going to be held based on probable cause to believe that he was
    involved in the murder. Defendant was kept in the interview room for a total of 4 hours and 40
    minutes before being formally arrested.
    ¶ 15    The following afternoon, around 4:20 p.m., defendant was returned to the interview room
    for another recorded interview with Detectives Brooks and Skalsky. Detective Brooks asked
    defendant, “You stated that you wanted to speak to me again, is that correct?” Defendant did not
    provide an audible response to the question, but he shook his head when asked if anyone threatened
    him. Detective Brooks provided a new set of Miranda warnings, and defendant signed the waiver
    form.
    ¶ 16    The interview began by Detective Brooks asking defendant to tell him what defendant
    wanted to talk to him about. After a lengthy pause, Detective Brooks told defendant that the story
    he told the previous day was “not complete.” He also told defendant that police had talked to
    several witnesses, checked area surveillance cameras, and found defendant’s shoeprint in the area.
    Defendant insisted that he had not done anything. Detective Brooks responded, “We know that’s
    not true.”
    ¶ 17    The detectives indicated that they did not believe defendant was a bad person or intended
    to kill the victim. They said they understood if defendant felt threatened and something went
    5
    wrong. Defendant responded that he guessed Tudy got him mixed up with someone else down the
    street who Tudy and his friends had problems with for stealing their weed. Defendant continued
    that the people on the porch started to threaten him when he walked by, so he jogged home to grab
    his brass knuckles. However, when defendant went back to Tudy’s house, no one was there, and
    defendant went home. The detectives declined to accept defendant’s story and stated that defendant
    either had a gun or knew someone who did have a gun. Defendant stated that the cameras in the
    area would confirm he did not have a gun. The detectives said that Tudy was talking for defendant
    and asked him if he wanted to share his side of the story. Defendant replied, “I’m telling the truth.”
    ¶ 18   Approximately 22 minutes into the interview, the detectives indicated that defendant’s
    mother was at the police station earlier that day. Defendant then asked, “If I do y’all a favor, could
    y’all do me a favor?” Asked to clarify, defendant said, “Just call my mama.” Detective Brooks
    asked, “What do you mean by doing us a favor?” Defendant did not respond. Detective Skalsky
    indicated that they could arrange a call, but then Detective Brooks asked defendant whether he
    would tell his mother the truth. Detective Brooks further stated, “I wanna know from you right
    now.” Defendant stated multiple times that he just wanted to talk to his mother. He began rocking
    back and forth in his chair. Detective Brooks left the room, telling defendant that he was going to
    inquire about calling his mother.
    ¶ 19   Detective Skalsky said that defendant should eat before his food got cold, but defendant
    stated, “I’m good.” Defendant continued to deny having a gun and asked if he could take a lie
    detector test. Defendant again indicated that the detective should review the cameras because they
    would tell the truth. Detective Skalsky told defendant that he would never reveal everything he
    knew or how he knew, and that he wanted defendant to tell the truth. Defendant then stated, “I just
    6
    wanna see my family.” He told Detective Skalsky, “After that, I’ll tell y’all.” Detective Skalsky
    then left the room.
    ¶ 20      Shortly thereafter, both detectives returned to the interview room. Detective Brooks told
    defendant they would be able to find his mother. However, he asked, “I’m just curious, what is it
    you want to talk to her about?” In response, defendant said that he wanted to see his mother and
    his brothers before he was “shipped off.”
    ¶ 21      The detectives continued to question defendant, indicating that they knew defendant had a
    gun. Defendant continued to deny involvement in the murder but stated that “they” chased him
    with a gun before. Asked if he was sorry, defendant stated, “I didn’t do it but I’m sorry for what
    happened to those kids.” Detective Brooks stated that they needed to hear the truth. He further
    implied he understood that defendant need to protect himself because there were four people
    against one person. Defendant then stated that there were way more than four people on the porch.
    Detective Brooks asked if there were 10 people. Defendant responded, “I don’t know but there
    was way more than four.”
    ¶ 22      Although he did not admit being the shooter, approximately 40 minutes into the interview,
    defendant stated, “My life is over.” He explained that he was afraid he would spend the rest of his
    life in jail and that people would think he was a “cold-blooded killer” because the police had
    charged him with murder. Detective Brooks told defendant that he looked “like that cold-blooded
    killer we keep talking about” because he was not telling the police his side of the story.
    ¶ 23      The detectives continued questioning defendant. Defendant asked multiple times to speak
    to his mother and his brothers; however, the detectives ignored these requests. Detective Brooks
    stated:
    7
    “Let me explain to you the problem, okay. I can’t make you promises. I can’t—I
    can’t sit here and tell you, hey, if I let you talk to your mom, then you—you gotta
    tell me the truth. And I can’t sit here and say, hey, I’ll bring your mom in here, and
    then you’ll tell me the truth. Because that—that makes it look like I’m making a
    promise or I’m coercing you, okay. Do you know what that means? Like I’m—like
    I’m making you a promise or like I’m telling you, hey, if you don’t tell me the truth,
    I won’t let you talk to your mom. Do you understand what I’m saying? And I can’t
    do that. I need you to tell me the truth because you want to tell me the truth. Okay.
    It can’t be, hey, if you let me talk to my mom, I’m—I—I’ll tell you the truth. I need
    you to tell me the truth man.”
    Detective Brooks told defendant that his mother and one of his brothers were at the police station
    earlier, but he did not know where they were now.
    ¶ 24   The detectives continued to question defendant, who continued to deny his involvement in
    the shooting until approximately an hour and five minutes into the interview. At that point,
    defendant said, “Just tell his mama I’m sorry.” Defendant subsequently admitted that he had a gun
    with him due to a previous encounter with someone who lived in the Ramlawi house. He explained
    that people riding in a red truck “pulled up on” him, called him the N-word, and threatened him.
    It is not clear how many people were in the truck or how many times this occurred, but defendant
    identified Tudy’s sister, Sarah, as the person who was “always” in the passenger seat. When asked
    if he knew why they threatened him, defendant said that “somebody stole their weed or
    something,” and they may have believed that he was the person who took it. Defendant stated that
    he used a revolver with .22 caliber bullets.
    8
    ¶ 25   Defendant again asked to call his mother, but Detective Brooks told him that he needed to
    tell them “the rest of this story” first. Defendant then admitted that he shot towards the house to
    scare the people who were on the porch so they would leave him alone. By demonstration,
    defendant indicated that he raised his arm to a parallel position to the ground but tilted his wrist
    up to shoot above the house. He stated multiple times that he did not know how Clayton got hit.
    Defendant stated that he could not explain exactly where he was standing when he shot the gun,
    but that he could show the detectives. Defendant then admitted that he threw the gun out the
    window of his car on his way back to Centreville, where he was staying with his aunt. He also
    agreed to show the detectives where he threw the gun. Officer Skalsky left for a brief moment,
    then came back and asked defendant if he had a hoodie because officers recovered one from his
    house. Defendant said “yes” and also confirmed it was the hoodie he wore on the night of the
    shooting.
    ¶ 26   Thereafter, both officers left the room. Once they left, defendant began to pace the room.
    Detective Brooks returned and informed defendant that they were going to set up a transport to try
    to find the gun. When asked if he needed anything, defendant stated “my family.” Detective Brooks
    told him to relax and hang in there. Shortly after Detective Brooks left the room, defendant flipped
    over a chair. Detective Brooks again returned and asked defendant to calm down because he did
    not want to have to put defendant back in his cell. Detective Brooks then got defendant an extra
    blanket. After a total of an hour and 50 minutes in the interview room, defendant was transported
    to various locations to show the officers where he shot and discarded the gun.
    ¶ 27   Detective Brooks testified at the grand jury. Pertinent to this appeal, Detective Brooks
    stated that a witness advised of the location of the gunshots and shell casings were located in that
    area. Detective Brooks averred that a .22 caliber bullet was found in the victim’s body. Detective
    9
    Brooks also stated that no one saw defendant shoot the gun, and that area where the shooting
    occurred was very dark with insufficient lighting.
    ¶ 28   Defendant was tried by jury for the first degree murder. At trial, all three individuals who
    were on the front porch when the victim was shot testified. We note the precise timing of the
    following events is not entirely clear from the witnesses’ testimonies.
    ¶ 29   Blaine Buchanan testified that after spending most of the evening with the victim, they
    ended up sitting on Mahmoud “Tudy” Ramlawi’s front porch. He stated that initially there were
    also four other people on the front porch—Tudy; his mother, Tammy; his sister, Sarah, and Sahem.
    However, Sarah and Sahem went inside soon after Buchanan and the victim arrived. Asked to
    describe what happened, Buchanan said, “Dude walk past the first time and he stop, bend down,
    put something in his shoes, like he was tucking something in his shoe.” At the time, Buchanan did
    not know who the individual was, but he described him as a young, black man with dreadlocks
    and a twitching eye, who was wearing black pants, a black hoodie, and black Nike boots.
    ¶ 30   Buchanan testified that defendant walked past a second time with two or three other males.
    According to Buchanan, when defendant walked past a third time, Tudy said, “Quit walking up
    my street,” and defendant responded, “bro, chill out before I hand you some.” Then, defendant and
    the people left. Buchanan did not see defendant again until the nighttime.
    ¶ 31   Buchanan stated that as he and the victim got up to leave Tudy’s house, he heard three or
    four shots. He testified that after hearing the first shot, he looked in that direction and saw sparks
    from the gun. Buchanan also stated he saw defendant holding the gun.
    ¶ 32   Buchanan testified that after the first shot fired, Tudy and Tammy entered their house and
    closed the door behind them, leaving Buchanan and the victim outside. Buchanan and the victim
    went in separate directions, but both met up on the driveway of another friend’s house a few doors
    10
    down the street. Buchanan testified that as the victim approached, he was holding his side and then
    collapsed once he reached the driveway.
    ¶ 33    On cross-examination, Buchanan testified that he was 15 or 20 feet from where defendant
    shot the gun and that he did not know defendant before that day. In response to counsel’s
    questioning about a pending case against him, Buchanan stated, “I did it already. Got out of jail
    for it.” On redirect, Buchanan testified that his testimony against defendant was not part of a plea
    deal.
    ¶ 34    Next, Tudy testified. He knew of defendant because they went to the same school. Tudy
    testified that on May 1, 2013, he was sitting on his front porch with his mom, sister, and sister’s
    boyfriend. Over the course of the evening and night, defendant walked by his house five to seven
    times. When defendant would walk by, he stopped periodically as if he was looking for something.
    Tudy stated the last time that defendant walked by, he stopped and “like tied his shoe, but his shoe
    was tied.” He averred that after defendant left, it was just him and his mom on the front porch,
    then Buchanan and the victim came. After about five or seven minutes, Tudy heard two gunshots
    from across the street. He further testified that he did not see anyone on the street, noting that
    because it was dark, he “could hardly see across the street.” Once inside his house, Tudy heard the
    victim say “ow” and observed him run around the outside of the house. Later, Tudy saw the victim
    bleeding and unconscious three or four houses down the street. On cross-examination, Tudy denied
    exchanging words with defendant when he walked by the house. Tudy also denied telling
    defendant to get off his street.
    ¶ 35    Tammy Ramlawi testified that she did not personally know defendant, but he looked
    familiar, and she had heard of him before that night. She stated that she was sitting with her son
    when Buchanan and the victim came up to their front porch. About five minutes later, defendant
    11
    walked down the street, stopped, and acted like he was tying his shoe. Defendant would just stare
    at the front of the house where they were sitting. Tammy testified that he did this two or three
    times. When defendant got past her house the last time, he took off running up around the corner.
    Tammy did not see defendant again that night. She testified that she later heard two gunshots. She
    tried to get the kids in the house, but the victim took off around the side of the house. Tammy did
    not realize the victim was shot until she saw him lying on the ground of a driveway a few houses
    down. On cross-examination, Tammy stated that she did not see anyone fire the gun.
    ¶ 36   Detective Brian Cave next testified. He was responsible for collecting and processing
    evidence in the case. Detective Cave identified a photograph of a shoeprint that was found in mud
    near a porch across the street from the Ramlawi house. The photograph was entered into evidence
    and published to the jury. Detective Cave testified that he took the photograph because it was
    relayed to him that the suspect had possibly been in that area when the shots were fired. Detective
    Cave also testified that he did not find any shell casings in the area. However, he did not expect to
    find shell casings because a revolver was used in the crime and revolvers do not automatically
    eject shell casings. Detective Cave also identified a black hooded sweatshirt that was located at
    defendant’s residence. He acknowledged that another officer found the hoodie and gave it to him
    to process.
    ¶ 37   Arianne Nunley, who was a few blocks away from where the shooting occurred, also
    testified. On that night, she saw defendant twice. Nunley stated that defendant was wearing black
    pants and a black hoodie. After hearing gunshots, she saw defendant walking down the street
    towards his house. She testified that she noticed defendant holding something shiny. Although
    Nunley acknowledged that she previously told police she thought the object was a gun, the court
    sustained defense counsel’s objection to this testimony.
    12
    ¶ 38   The dispatcher who received a 9-1-1 call about the incident was also called to testify. The
    dispatcher testified that she received a call around 9:25 p.m. on May 1, 2013, during which the
    caller stated that a person had been shot in the abdomen. The audio-recording of the 9-1-1 call was
    admitted into evidence and played for the jury. Defense counsel did not object. After the 9-1-1 call
    was played, the dispatcher averred that she was the person who answered the call.
    ¶ 39   On the recording, the dispatcher asked who the shooter was and what the shooter was
    wearing. The caller responded, “We don’t know,” then proceeded to ask the people in the
    background if they knew who shot the victim. After a brief moment, the caller stated, “Dude is
    black 5’7” shorter dreads in a blue hoodie. His name is Laroyce.”
    ¶ 40   The State’s final witness was Gary Brooks, the detective in charge of the investigation. He
    testified at length about his interviews with defendant. Detective Brooks averred the first interview
    took place on May 2, 2013, and lasted approximately 45 to 50 minutes, in which defendant did not
    acknowledge any involvement in the murder. Detective Brooks testified that after he obtained a
    warrant, he conducted a gunshot residue (GSR) test on defendant’s hands. Detective Brooks
    explained that the time period since the crime, possible transfer of the GSR to a suspect’s clothing,
    and use of hand sanitizer in this case could affect whether gun residue was found. He testified that
    the test came back negative, but such result did not surprise him.
    ¶ 41   Detective Brooks testified that after the first interview, he presented the case to the state’s
    attorney and obtained an information of the charges. Detective Brooks stated, “I went back to the
    police department and I read it to [defendant] and he told me that he wanted to speak to me again
    about the case.” Detective Brooks and Detective Skalsky conducted the second interview on May
    3, 2013. The second interview began at 4:20 p.m. and lasted about an hour and a half. Detective
    Brooks acknowledged that defendant did not implicate himself for the first hour of the interview.
    13
    Due to the difficulty in hearing many of defendant’s responses, the prosecutor asked Detective
    Brooks to summarize for the jurors what defendant said during the last half hour of the interview.
    Detective Brooks also stated that defendant verified that the hoodie recovered from his house was
    the hoodie defendant wore the night of the shooting.
    ¶ 42   Detective Brooks also provided testimony regarding the interrogation techniques used
    during the interview. He conceded that during the interview, he implied that there were 10 people
    threatening defendant although there was nothing to indicate there were 10 people on the porch.
    Detective Brooks testified that exaggerating things that he did not necessarily believed happened
    is a police technique used to minimize the crime and a suspect’s involvement to elicit the truth. On
    cross-examination, Detective Brooks also acknowledged that while he told defendant he reviewed
    the cameras in the area and that he had the GSR results, both statements were untrue. Edited
    versions of both interviews were played for the jury.
    ¶ 43   Detective Brooks testified that after the second interview ended, defendant agreed to show
    police where he shot and discarded the gun. Defendant was placed in the back of a police car and
    went to various locations, including the Ramlawi house and an area in East St. Louis where
    defendant indicated that he discarded the gun. Detective Brooks testified that when they arrived at
    the Ramlawi house, defendant showed them where he was standing when he fired the shots.
    Detective Brooks further testified, “As I recall, Detective Cave stated [that] over here on the right-
    hand side of this residence where [defendant] indicated that he had fired the weapon there was a
    shoe print that whenever it was—whenever we compared it to [defendant]’s shoes, it appeared to
    be similar.”
    ¶ 44   Detective Brooks averred that the gun was never recovered after “probably eight officers”
    searched the area that defendant indicated he disposed the gun for 30 to 40 minutes. He noted that
    14
    anyone could have come by and picked up the gun on the side of the road or the gun could have
    been covered by debris.
    ¶ 45   On cross-examination, defense counsel asked Detective Brooks about the shoeprint. He
    asked, “You said the crime lab said it was similar, right? Didn’t say it was the same shoe, said it
    was [a] similar shoe?” Detective Brooks replied, “I don’t know what the crime lab said. I am just
    going off what I recall looking at the photograph.” In response to further questioning, he
    acknowledged that it was his personal opinion that the prints looked similar, not that of a forensic
    scientist. Detective Brooks also conceded that he never showed defendant the hoodie before
    defendant verified that it was the hoodie he wore on the night of the shooting.
    ¶ 46   A jury found defendant guilty of first degree murder. The court sentenced defendant to 50
    years in prison. Defense counsel filed a motion to reconsider that sentence, arguing it was
    excessive in light of defendant’s youth and other mitigating circumstances. The court denied the
    motion and this appeal followed. We will discuss additional background information as necessary
    during our analysis of the issues raised.
    ¶ 47                                    II. ANALYSIS
    ¶ 48   On appeal, defendant alleges several contentions of ineffective assistance of counsel. He
    also contends that his sentence violates the requirements of Miller v. Alabama, 
    567 U.S. 460
    (2012), and is excessive under the proportionate penalties clause of the Illinois Constitution (Ill.
    Const. 1970, art. I, § 11). For the reasons set forth below, we find that defense counsel provided
    effective assistance and defendant’s sentence is constitutional.
    ¶ 49                      A. Ineffective Assistance of Counsel Claims
    ¶ 50   A criminal defendant has a constitutional right to effective assistance of counsel. U.S.
    Const., amends. VI, XIV; Ill. Const. 1970, art. I, § 8. Claims of ineffective assistance of counsel
    15
    are evaluated under the two-prong test set forth in Strickland v. Washington, 
    466 U.S. 688
     (1984).
    People v. Albanese, 
    104 Ill. 2d 504
     (1984) (Illinois Supreme Court adopting the Strickland
    standard). To prevail, a defendant must demonstrate that counsel’s performance fell below an
    objective standard of reasonableness and that a reasonable probability exists that, but for counsel’s
    errors, the result of the proceeding would have been different. People v. Bailey, 
    2020 IL App (5th) 160458
    , ¶ 86. “Judicial scrutiny of counsel’s performance must be highly deferential.” Strickland,
    466 U.S. at 689. Defendants must overcome the strong presumption that counsel’s conduct falls
    within the wide range of sound trial strategy. Id. The failure to establish either prong of Strickland
    precludes a finding of ineffectiveness. People v. Easley, 
    192 Ill. 2d 307
    , 318 (2000).
    ¶ 51                        i. Failure to File a Motion to Suppress
    ¶ 52   We first address defendant’s claim that counsel was ineffective for failing to file a motion
    to suppress his confession. The decision to file a motion “is generally a matter of trial strategy,
    which is entitled to great deference.” (Internal quotation marks omitted.) People v. Gayden, 
    2020 IL 123505
    , ¶ 28. To assert a successful ineffective assistance of counsel claim on the failure to file
    a suppression motion, defendant must demonstrate (1) the unargued suppression motion was
    meritorious and (2) a reasonable probability exists that the trial outcome would have been different
    had the evidence been suppressed. People v. Patterson, 
    2014 IL 115102
    , ¶ 81. “A reasonable
    probability is a probability sufficient to undermine confidence in the outcome.” Strickland, 466
    U.S. at 694.
    ¶ 53   Defendant contends a motion to suppress his statement would have been meritorious
    because the police violated his fifth amendment rights. Defendant further argues that, looking to
    the totality of the circumstances, his confession was involuntary.
    16
    ¶ 54   Under the fifth amendment of the United States Constitution, which applies to the states
    through the fourteenth amendment (People v. Hunt, 
    2012 IL 111089
    , ¶ 23), “[n]o person shall ***
    be compelled in any criminal case to be a witness against himself.” U.S. Const., amend. V. The
    pivotal question in assessing whether defendant’s privilege against self-incrimination was violated
    is whether defendant’s statements were made voluntarily. Miranda, 
    384 U.S. at 462
     (quoting Bram
    v. United States, 
    168 U.S. 532
    , 542 (1897)). Because of the inherent compulsion involved during
    in-custody police questioning, the fifth amendment privilege against self-incrimination extends to
    custodial police interrogation. Id. at 461-63.
    ¶ 55   From the outset, we address the State’s contention that defendant’s first interview was not
    custodial. To determine whether a defendant is in custody, courts employ an objective standard to
    analyze whether a reasonable person would have felt he or she was at liberty to leave in light of
    the totality of the circumstances surrounding the interrogation. People v. Slater, 
    228 Ill. 2d 137
    ,
    150 (2008); J.D.B. v. North Carolina, 
    564 U.S. 261
    , 270-71 (2011). The facts that police
    interviewed a person at the police station or the interviewed person is whom the police suspect are
    not dispositive. Oregon v. Mathiason, 
    429 U.S. 492
    , 495 (1977). Rather, the inquiry is whether
    “there has been such a restriction on a person’s freedom as to render him ‘in custody.’ ” 
    Id.
     The
    relevant factors in determining whether an interrogation is custodial are: “(1) the location, time,
    length, mood, and mode of the interrogation, (2) the number of police officers present, (3) the
    presence or absence of family and friends of the accused, (4) any indicia of formal arrest, and
    (5) the age, intelligence, and mental makeup of the accused.” People v. Follis, 
    2014 IL App (5th) 130288
    , ¶ 22; Slater, 
    228 Ill. 2d at 150
    .
    ¶ 56   Under the totality of the circumstances of this case, a reasonable person would have
    considered himself to be in custody and not free to leave. We agree with the State that although
    17
    defendant’s PSI revealed defendant had some mental health issues, nothing on the interview
    recordings showed that the police would have known defendant had learning disabilities and
    mental health issues. See Slater, 
    228 Ill. 2d at 157-58
    . However, many of the factors weigh in
    favor of finding that defendant was in custody for the first interview. Two officers interviewed
    defendant in a room at the police station. Importantly, although the officers did not formally arrest
    defendant, they took his shoes before the first interview. The officers were not aggressive but were
    accusatory. No family or friends of defendant were present. The second interview took place after
    defendant was formally arrested and booked into jail. Accordingly, we find both interviews were
    custodial in nature.
    ¶ 57   To protect a suspect against self-incrimination from “the inherently compelling pressures”
    of custodial interrogation, the United States Supreme Court adopted prophylactic measures in
    Miranda, 
    384 U.S. at 467
    . These procedural safeguards require officers to inform “a suspect before
    a custodial interrogation that: he has the right to remain silent; anything he says can be used against
    him in a court of law; he has the right to have an attorney present; and if he cannot afford an
    attorney, one will be appointed for him before questioning if he so desires.” Hunt, 
    2012 IL 111089
    ,
    ¶ 25 (citing Miranda, 
    384 U.S. at 479
    ). If police fail to provide Miranda warnings before a
    custodial interrogation, the suspect’s statements are presumptively involuntary and must be
    excluded. People v. Firestine, 
    2019 IL App (5th) 180264
    , ¶ 15. In Michigan v. Mosley, 
    423 U.S. 96
    , 104 (1975), the Court determined that if police do not scrupulously honor a suspect’s
    invocation of his right to remain silent, any statements obtained as a result must be suppressed.
    Similarly, in Edwards v. Arizona, 
    451 U.S. 477
    , 484-85 (1981), the United States Supreme Court
    determined that if a suspect invokes his right to counsel during a custodial interrogation,
    18
    questioning must cease “until counsel has been made available to him, unless the accused himself
    initiates further communication, exchanges, or conversations with the police.”
    ¶ 58   In this case, there is no question that the interrogating officers provided Miranda warnings
    to defendant before each interrogation. However, defendant argues that he invoked both his right
    to remain silent and his right to an attorney. Because of the invocation of his rights, defendant
    contends counsel should have filed a motion to suppress a fraction of his first interview and the
    entire second interview. The State argues that defendant was not prejudiced by any statements in
    his first interview and defendant initiated the second interview such that the police did not violate
    his right to counsel.
    ¶ 59   To exclude any statements according to Edwards or Mosley, defendant must actually
    invoke his rights. Davis v. United States, 
    512 U.S. 452
    , 458 (1994); see Berghuis v. Thompkins,
    
    560 U.S. 370
    , 381-82 (2010). The invocation of either the right to remain silent or right to counsel
    must be clear and unambiguous. Berghuis, 
    560 U.S. at 381
    ; Davis, 
    512 U.S. at 459
    .
    ¶ 60   Here, approximately 40 minutes into the first interview, defendant stated, “I don’t wanna
    talk no more.” Such statement clearly and unambiguously invoked his right to remain silent, and
    the officers’ immediate questioning after this statement ignored defendant’s invocation of his right.
    Because the detectives continued to question defendant after he invoked his right to remain silent,
    the remainder of the interview after this point would have been excluded had defense counsel filed
    a motion to suppress. Nevertheless, defendant’s claim of ineffective assistance of counsel
    regarding a motion to suppress his first interview does not require reversal because defendant fails
    to show prejudice. From the time that defendant invoked his right to remain silent and the end of
    the interview, defendant did not provide any new or additional information than what was provided
    in his second interrogation, which was admissible for the reasons below. Thus, there is not a
    19
    reasonable probability that the result of the trial would have been different if the last 10 minutes
    of defendant’s interview had been suppressed.
    ¶ 61   At the end of the first interview, defendant stated, “Can I wait for my lawyer to do this?
    Can I get a lawyer?” which clearly invoked his right to counsel. Thereafter the detectives stopped
    questioning defendant. Defendant contends that because he invoked his right to counsel in his first
    interview, police violated his rights in conducting a second interview outside the presence of
    counsel.
    ¶ 62   Once a person invokes his right to counsel, police cannot further question him without the
    presence of the counsel unless the accused initiates further discussion. People v. Branch, 
    2017 IL App (5th) 130220
    , ¶ 23. Inquiries or statements “relating to routine incidents of the custodial
    relationship” are insufficient to initiate further discussion. Oregon v. Bradshaw, 
    462 U.S. 1039
    ,
    1045 (1983). Rather, the accused must “evince[ ] a willingness and a desire for a generalized
    discussion about the investigation.” 
    Id. at 1045-46
    . However, even where an accused initiates a
    generalized discussion about the investigation, his waiver of the right to counsel must be voluntary.
    
    Id. at 1046
    .
    ¶ 63   The only evidence that defendant initiated a conversation was Detective Brooks’s
    testimony that defendant asked to speak to him after reading defendant the warrant and the
    detective indicating as such in the video of the second interrogation. The record is void of any
    evidence concerning the details of their conversation—including exactly what defendant said—or
    circumstances that occurred before defendant’s second interrogation began. Detective Brooks’s
    testimony, and his statements in the video of the second interrogation, fails to elucidate whether
    defendant truly indicated that he wanted to enter a generalized discussion related to the
    investigation before the second interrogation began.
    20
    ¶ 64   Due to the scant record, we cannot say whether counsel erred in failing to require the State
    prove defendant reopened the dialogue. Because the determination of whether defendant’s waiver
    of his right to counsel was voluntary depends on the totality of the circumstances—including the
    time before defendant’s second interrogation and “the necessary fact that the accused, not the
    police, reopened the dialogue with the authorities” (internal quotation marks omitted) (id.)—we
    also cannot say whether a motion to suppress on this basis would have been successful. As such,
    these contentions are better suited for a collateral attack where the record can be better developed.
    People v. Veach, 
    2017 IL 120649
    , ¶ 46 (“ineffective assistance of counsel claims may sometimes
    be better suited to collateral proceedings but only when the record is incomplete or inadequate for
    resolving the claim”).
    ¶ 65   We nevertheless must consider whether defendant’s statements were overall voluntary.
    Slater, 
    228 Ill. 2d at 159-60
    . The inquiry into whether a confession was voluntary is whether an
    individual made a confession “without compulsion or inducement of any kind, or whether the
    individual’s will was overborne at the time of the confession.” (Internal quotation marks omitted.)
    People v. Murdock, 
    2012 IL 112362
    , ¶ 30. To make this determination, a reviewing court considers
    the totality of the circumstances, including “age, intelligence, background, experience, mental
    capacity, education, *** physical condition at the time of questioning[,] *** the legality and
    duration of the detention; the duration of the questioning; the provision of Miranda warnings; and
    *** [t]he presence of any physical or mental abuse by police, including threats or promises, as
    well as the use of trickery, deception, or subterfuge.” In re D.L.H., 
    2015 IL 117341
    , ¶ 59. No single
    factor is dispositive. In re G.O., 
    191 Ill. 2d 37
    , 54 (2000).
    ¶ 66   Illinois court have also recognized that juvenile confessions present “a sensitive concern.”
    People v. Prude, 
    66 Ill. 2d 470
    , 476 (1977). As such, reviewing courts must take the greatest care
    21
    to assure that a juvenile’s confession was not coerced, suggested, or “the product of adolescent
    fantasy, fright, or despair.” Murdock, 
    2012 IL 112362
    , ¶ 32. For this reason, the additional
    “concerned adult” factor is recognized to be a relevant consideration. In re G.O., 
    191 Ill. 2d at 55
    .
    The concerned adult factor considers “whether the juvenile, either before or during the
    interrogation, had an opportunity to consult with an adult interested in his welfare[,] *** the police
    prevented the juvenile from conferring with a concerned adult[,] and *** the police frustrated the
    parents’ attempt to confer with the juvenile.” 
    Id.
     In its brief, the State argues that because—at the
    time of defendant’s interrogation—the Juvenile Court Act of 1987 (Act) applied to only those
    under 17 years old and defendant was 17 years old, he should not be considered a juvenile. It
    further contends that due to the inapplicability of the Act, the officers were not obligated to allow
    defendant to consult with a concerned adult under section 5-405(2) of the Act (705 ILCS 405/5-
    405(2) (West 2012)), and this court should not consider that factor.
    ¶ 67   To be afforded the protections of the Act is a matter of legislative grace, as “[j]uveniles
    have neither a common law nor a constitutional right to adjudication under the [Act].” In re M.I.,
    
    2013 IL 113776
    , ¶ 46. The Act is a statutory creation whose application is solely determined by
    the legislature. 
    Id.
     Accordingly, section 5-120 of the Act, which limits the availability of
    proceedings under the Act to “any minor who prior to the minor’s 17th birthday” violated a law
    (705 ILCS 405/5-120 (West 2012)), is merely a legislative parameter of the Act’s applicability.
    See People v. P.H., 
    145 Ill. 2d 209
    , 223 (1991). This section therefore only determines who is
    considered a delinquent minor under the Act, not who is a juvenile. See People v. Macias, 
    2015 IL App (1st) 132039
    , ¶ 54. For constitutional purposes, juveniles are individuals under the age of
    18. People v. Harris, 
    2018 IL 121932
    , ¶ 56; Roper v. Simmons, 
    543 U.S. 551
    , 574 (2005); Graham
    v. Florida, 
    560 U.S. 48
    , 74-75 (2010); Miller v. Alabama, 
    567 U.S. 460
    , 465 (2012).
    22
    ¶ 68   Moreover, in addition to what is required by state statutory law, we look to the totality of
    the circumstances in determining whether a statement is voluntary. As such, whether defendant
    was allowed to speak with a parent or concerned adult is nevertheless a relevant factor. In re G.O.,
    
    191 Ill. 2d at 55
    ; People v. Westmorland, 
    372 Ill. App. 3d 868
    , 880-84 (2007); Gallegos v.
    Colorado, 
    370 U.S. 49
    , 55 (1962); Murdock v. Dorethy, 
    846 F.3d 203
    , 209 (7th Cir. 2017); Doody
    v. Schriro, 
    548 F.3d 847
    , 867 (9th Cir. 2008); United States ex rel. Burgos v. Follette, 
    448 F.2d 130
    , 132 (2d Cir. 1971); Williams v. Peyton, 
    404 F.2d 528
    , 531 (4th Cir. 1968); Mitchell v.
    Stephens, 
    353 F.2d 129
    , 137 (8th Cir. 1965) (defendant was 23 years old).
    ¶ 69   A juvenile’s statements, however, should not be suppressed merely because he was denied
    the opportunity to confer with a parent or other concerned adult before or during the interrogation.
    Murdock, 
    2012 IL 112362
    , ¶ 33. The absence of a concerned adult “is not enough to suppress the
    confession if other factors indicate that the confession was voluntary.” Hardaway v. Young, 
    302 F.3d 757
    , 765 (7th Cir. 2002). The concerned adult factor is not dispositive but rather “is just one
    of the many factors for the court to consider.” Murdock, 
    2012 IL 112362
    , ¶ 33.
    ¶ 70   It is clear that defendant was denied access to his mother despite his repeated requests to
    talk with her. However, the police clarified that access to his mother was not conditioned on
    defendant’s cooperation. The video of the second interview reveals that the detectives, at some
    point, spoke with defendant’s mother and attempted to contact his mother upon his request during
    the second interrogation. Yet, one detective explicitly stated that he could not make a promise to
    defendant that he could see his mother. The officer further explained that he could not say
    defendant would be allowed to speak to his mother if defendant told the truth. The detective
    clarified that defendant must want to cooperate on his own accord. Therefore, while we do not
    condone the police disallowing defendant to confer with his mother, here, it was not a coercive
    23
    tactic. As noted above, the absence of a concerned adult is not—by itself—dispositive; we must
    look to the totality of the circumstances.
    ¶ 71   There is no evidence of physical coercion or other abuse by the police, which weighs in
    favor of finding defendant’s statements voluntary. Defendant contends the detectives engaged in
    deceit and trickery by lying about the evidence against him. Specifically, defendant asserts the
    police lied about the number of witnesses, the location of cameras, and that they viewed the
    cameras. The record belies defendant’s assertion that the police lied about the location of the
    cameras, as Detective Brooks testified there was one camera at the library in the area.
    ¶ 72   Nevertheless, Detective Brooks admitted to lying about the number of people on the porch
    at the time of the shooting and that he had not reviewed the footage from the cameras in the area
    before defendant’s interviews. While deception contributes to the coerciveness of the
    interrogation, it is not per se unlawful. Patterson, 
    2014 IL 115102
    , ¶ 76. In the second
    interrogation, Detective Skalsky explained that he would not tell defendant everything he knew or
    how he knew certain facts. The detective’s statement regarding the cameras did not indicate that
    the footage was inconsistent with defendant’s story or that defendant was lying. Moreover, even
    after the detectives mentioned their review of the video cameras, defendant denied involvement
    and made subsequent requests for them to review the cameras to verify his story. Similarly, after
    the detective implied that there were 10 people on the porch at the time of the shooting, defendant
    stuck to his original narrative that he was not involved in the shooting. Indeed, defendant was the
    first to indicate that there were more than four people on the porch. As such, while we do not
    approve of the police’s tactics, there is no indication that the detective’s actions caused defendant
    to make any inculpatory statement or overbore defendant’s will. See People v. Johnson, 
    368 Ill. App. 3d 1073
    , 1089 (2006).
    24
    ¶ 73   Also weighing in favor of voluntariness, defendant’s interrogations were conducted at
    reasonable times and not for an extended amount of time. Defendant was provided a bottle of water
    before his first interrogation. While defendant was detained for four hours after his first
    interrogation and before being formally arrested, the interrogation lasted only about 50 minutes
    and occurred midday. Defendant was also provided food and a blanket once the interrogation
    ended. Before his second interrogation, defendant was provided a drink, food, and a blanket. The
    second interrogation began at 4:20 p.m. and lasted roughly an hour and a half. The police also
    provided Miranda warnings before each encounter. As such, the length and conditions of the
    interrogation did not contribute to a coercive atmosphere that would render defendant’s statements
    as involuntary. See Murdock, 
    2012 IL 112362
    , ¶¶ 46-47 (the facts of police offering food and
    drink, a total interrogation time of three hours, and the interrogation occurring in the evening, all
    favor a finding of voluntariness); see also People v. Morgan, 
    197 Ill. 2d 404
    , 441 (2001) (citing
    the fact that defendant was informed on his Miranda rights in determining that the juvenile
    defendant’s confession was voluntary).
    ¶ 74   Looking at defendant’s specific characteristics, he was reserved and anxious at times
    throughout the interrogations. Some nervousness, however, is not inconsistent with voluntariness.
    See Murdock, 
    2012 IL 112362
    , ¶ 46. At 17 years old, he was on the older end of the juvenile scale.
    While defendant’s presentence investigation report notes his learning difficulties and mental health
    issues, defendant had completed the tenth grade. See Macias, 
    2015 IL App (1st) 132039
    , ¶ 58
    (“[S]tatements made by defendants with a ninth-grade education, or less, have been found
    voluntary in Illinois.” (Internal quotation marks omitted.)). Defendant has also had several prior
    encounters with the criminal justice system, including a felony charge of residential burglary, a
    felony charge of possession of a stolen vehicle, two counts of aggravated assault of a police officer,
    25
    and two counts of resisting a peace officer. See Hardaway, 
    302 F.3d at 767
     (“As the state courts
    recognized, past brushes with the law weigh against the normal presumption that youths are
    specially sensitive to coercion.”).
    ¶ 75   Moreover, the video showed no communication issues. Defendant informed the officers
    that he could read and write. The officers ensured this by asking defendant to read one of his
    Miranda rights before the officer read the remaining rights. Defendant indicated that he understood
    his Miranda rights and further demonstrated his knowledge of such rights by invoking both the
    right to remain silent and the right to an attorney. In re G.O., 
    191 Ill. 2d at 56-57
     (in finding that a
    juvenile defendant’s confession was voluntary absent a concerned adult, the Illinois Supreme
    Court noted that the evidence demonstrated that defendant understood his Miranda rights). After
    exercising these rights, the police again provided Miranda warnings before the second
    interrogation, which reiterated that defendant was entitled to have an attorney present and the right
    to remain silent. The video also demonstrated that defendant was able to understand the officers’
    questions and provide clear, responsive answers. See Slater, 
    228 Ill. 2d at 160
    .
    ¶ 76   Accordingly, while the absence of a concerned adult weighs against voluntariness, the
    other factors weigh in favor of finding defendant’s statements were voluntary. In light of the
    totality of the circumstances, we find that neither the police’s actions, nor the interrogation
    atmosphere, caused defendant’s will to be overcome. Defendant’s statements from his second
    interrogation were therefore voluntary, and not the product of coercion. Consequently, defendant
    cannot show the necessary prejudice for his ineffective assistance of counsel claim based on the
    voluntariness of his confession.
    26
    ¶ 77                                  ii. Cumulative Error
    ¶ 78   Defendant further argues that counsel committed several other errors involving the failure
    to present and to object several items of evidence. Defendant contends these errors, cumulatively,
    prejudiced him and denied him of a fair trial. Before considering any resulting prejudice from
    counsel’s actions, we first determine whether counsel erred.
    ¶ 79                             a. Failure to Present Evidence
    ¶ 80   Defendant claims counsel was ineffective for failing to present impeachment evidence and
    an argument concerning the GSR evidence. Specifically, defendant alleges counsel was ineffective
    in failing to present (1) favorable treatment in another criminal case to impeach Tammy,
    (2) favorable treatment in another criminal case to impeach Nunley, (3) the extent of favorable
    treatment to Buchanan for his testimony, (4) inconsistencies between Detective Brooks’s grand
    jury testimony and testimony at trial, and (5) an explicit challenge to the State’s explanation of the
    negative GSR test result.
    ¶ 81   The decisions to present evidence, including impeachment evidence, have long been
    recognized as matters of trial strategy. People v. Pecoraro, 
    175 Ill. 2d 294
    , 326 (1997); People v.
    West, 
    187 Ill. 2d 418
    , 432 (1999). Such matters are generally insufficient to support a claim of
    ineffective assistance of counsel, unless defendant can show that counsel’s actions were
    objectively unreasonable. People v. Peterson, 
    2017 IL 120331
    , ¶ 80; Pecoraro, 
    175 Ill. 2d at
    326-
    27; People v. Leeper, 
    317 Ill. App. 3d 475
    , 483 (2000). Defendant is entitled to only “ ‘competent,
    not perfect representation.’ ” West, 
    187 Ill. 2d at 432
     (quoting People v. Stewart, 
    104 Ill. 2d 463
    ,
    492 (1984)).
    27
    ¶ 82   Defendant’s claims regarding the impeachment of Tammy and Nunley rely on facts outside
    of the record. Accordingly, such claims are better suited for a collateral attack. Veach, 
    2017 IL 120649
    , ¶ 46.
    ¶ 83   In support of his claim that counsel failed to properly impeach Buchanan by explaining the
    extent of the favorable treatment afforded to Buchanan, defendant again relies on information
    outside the record. Nonetheless, defendant concedes that counsel did impeach Buchanan by raising
    the possibility that Buchanan received favorable treatment for his testimony at trial. Any further
    questioning on the subject would have been cumulative and was therefore a matter of trial strategy.
    People v. Phillips, 
    2017 IL App (4th) 160557
    , ¶¶ 58-59.
    ¶ 84   Defendant’s arguments concerning inconsistencies between Detective Brooks’s grand jury
    testimony and the testimony at trial must also fail. He first contends that Detective Brooks testified
    at the grand jury that shell casings were found, but, at trial, Detective Cave testified that no shell
    casing were found. Defendant further noted evidence was presented that a .22 caliber gun was the
    murder weapon which would not have ejected casings. However, defendant fails to assert how
    counsel could have raised this inconsistency. At trial, Detective Brooks did not testify to the
    evidence found at the crime scene. While Detective Cave testified no shell casings were recovered,
    counsel could not have used Detective Brooks’s grand jury testimony to impeach Detective Cave.
    Even if counsel could raise such issue, such evidence would—at most—indicate Detective Brooks
    was mistaken, as he indicated a .22 caliber gun was likely the murder weapon to the grand jury
    and was not the officer to analyze the crime scene. As such, we do not find counsel erred in this
    respect.
    ¶ 85   Likewise, we see no error in counsel’s failure to raise Detective Brooks’s grand jury
    testimony that no eyewitness identified defendant shooting the gun. At trial, Buchanan testified
    28
    that when he looked in the direction of where the gunshots were coming from, he saw gun sparks
    and defendant holding the gun. Defendant, however, concedes it is unclear when Detective Brooks
    knew Buchanan identified defendant as the shooter. Further, defendant, once again, fails to explain
    how counsel should have impeached Buchanan with Detective Brooks’s prior statement. Counsel
    also could not have impeached Detective Brooks with his prior grand jury testimony because, at
    trial, he did not testify to what Buchanan told police. Accordingly, we do not find counsel’s actions
    were objectively unreasonable.
    ¶ 86   With respect to his claim concerning the GSR testing, defendant argues that because
    Detective Brooks testified the negative GSR testing on defendant’s hands were not exonerating
    due to the GSR’s ability to attach to the person’s clothing worn at the time of the shooting, counsel
    should have informed or argued that the State collected defendant’s clothing and hoodie but failed
    to present any GSR testing results for those items. Based on the record, we find counsel did
    highlight the fact that there was no GSR testing connecting defendant’s hoodie to the crime. While
    Detective Brooks testified that defendant indicated the hoodie found at defendant’s house was the
    hoodie he wore on the night in question, Detective Brooks admitted on cross-examination that he
    never showed defendant the hoodie that was taken from his home to verify that it was in fact the
    hoodie he wore on the night of the shooting. In closing, counsel argued “[t]here’s no gunpowder
    residue.” Counsel then explained that although the hoodie admitted into evidence was discovered
    at defendant’s house, there was no evidence connecting the hoodie to the crime. Counsel’s
    argument that no evidence connected the hoodie to what defendant wore the night of the crime
    would include the lack of scientific evidence. Thus, we find counsel did not err.
    29
    ¶ 87                                  b. Failure to Object
    ¶ 88   Defendant next argues that counsel was ineffective for failing to object to (1) the admission
    of the 9-1-1 call, (2) Detective Brooks’s testimony regarding shoeprint evidence, and (3) several
    prosecutorial comments. Ordinarily, decisions regarding what to object to and when to object are
    matters of trial strategy. Pecoraro, 
    175 Ill. 2d at 327
    . We therefore give much deference to counsel
    on such decisions, and only find error if counsel’s actions were objectively unreasonable. Id.;
    People v. Perry, 
    224 Ill. 2d 312
    , 344 (2007). We address each of defendant’s claim of ineffective
    assistance of counsel based on counsel’s failure to object in turn.
    ¶ 89                                     1. 9-1-1 Call
    ¶ 90   We first address counsel’s failure to object to the admission of the 9-1-1 call. While 9-1-1
    calls may fall into the hearsay exception for excited utterances (see People v. Morales, 
    2021 IL App (2d) 190408
    , ¶¶ 11-18), an otherwise admissible telephone conversation may be admitted
    only upon a proper foundation that assures “the recording’s reliability and authenticity, including
    the identification of voices.” People v. Camacho, 
    2018 IL App (2d) 160350
    , ¶ 23. A proper
    foundation for a telephone conversation requires a witness familiar with the speaker such that the
    witness could identify the speaker’s voice or other corroborative evidence from which the speaker
    can be identified. People v. Caffey, 
    205 Ill. 2d 52
    , 94-95 (2001).
    ¶ 91   The record here shows that the 9-1-1 dispatcher only identified her own voice but did not
    identify the caller nor testify that she recognized the caller’s voice. There was no other evidence
    to corroborate who called 9-1-1. Moreover, the recording demonstrated that the caller did not know
    the identity of the shooter until the caller asked an undisclosed person. There is no indication as to
    how either person had a basis for knowing defendant was the shooter. Because the State failed to
    30
    lay a proper foundation, the 9-1-1 call should not have been admitted and counsel was
    unreasonable in failing to object.1
    ¶ 92                                  2. Shoeprint Evidence
    ¶ 93    Defendant also contends that counsel was ineffective for failing to object to the testimony
    of Detective Brooks regarding shoeprint evidence. He argues that not only was Detective Brooks
    not an expert in forensic science or shoeprint analysis, the shoeprint evidence lacked a proper
    foundation and was far more prejudicial than probative.
    ¶ 94    The Illinois Supreme Court discussed the admissibility of shoeprint evidence for
    identification purposes in People v. Campbell, 
    146 Ill. 2d 363
     (1992). It determined that shoeprint
    evidence may be reliable and trustworthy if significant general and individual characteristics are
    present. 
    Id. at 376, 378-79
    . Absent sufficient unique, distinctive characteristics, however, may
    result in general problems with the probative value of the shoeprint evidence. 
    Id. at 378
    . General
    characteristics, alone, are rarely sufficient. 
    Id.
     The court clarified “that in shoeprint comparison,
    the first step in the analysis is to note any fundamental differences between the shoe and the
    shoeprint. A fundamental difference is one such as size, shape, or make, that precludes any further
    comparison. Absent fundamental differences, points of similarity are located and recorded.” 
    Id. at 382-83
    . In Campbell, because a forensic expert testified that the shoeprint at the crime scene
    matched defendant’s shoe based on not only the general pattern and size of the shoe but also six
    peculiar signs of wear, the court found the evidence was sufficiently reliable.
    ¶ 95    Unlike Campbell, Detective Brooks was not an expert in shoeprint analysis—or any
    forensic science. Moreover, Detective Brooks testified that the shoeprint looks similar to
    1
    In its brief, the State does not argue to the contrary; instead, it argues that defendant was not
    prejudiced.
    31
    defendant’s shoes but failed to disclose the similarities on which he based his opinion. The record
    lacks both unique characteristics and general characteristics. Thus, such evidence is unreliable
    identification evidence that would have been excluded had counsel objected.
    ¶ 96                                     3. Prosecutor’s Comments
    ¶ 97     Lastly, defendant alleges several errors of ineffectiveness regarding the State’s statements
    and one of the State’s questions. We first address defendant’s contention that counsel was
    ineffective for failing to strike an answer to the State’s question that improperly impeached its own
    witness Nunley.
    ¶ 98     After Nunley testified that defendant had something shiny, but she did not know what it
    was, the prosecutor asked if she remembered telling the police that the shiny object was a gun.
    Nunley answered in the affirmative. After the court sustained counsel’s objection to the question
    and answer, the State again asked if Nunley thought it was a gun and she stated “yes.” Counsel
    again objected and the court sustained the objection. While counsel did not request the answer be
    stricken, counsel promptly objected to both questions and the court sustained both objections.
    Also, the court later instructed the jury that it should disregard questions to which objections were
    sustained. We therefore find no error. See People v. Outlaw, 
    388 Ill. App. 3d 1072
    , 1088 (2009).
    ¶ 99     Defendant also argues that counsel was ineffective for failing to object to improper remarks
    during the State’s closing and opening arguments. 2 Prosecutors are afforded wide latitude in
    closing arguments. People v. Jackson, 
    2020 IL 124112
    , ¶ 82. This latitude, however, is not
    2
    Defendant also contends that counsel erred in failing to object to the State’s opening remarks concerning the
    9-1-1 call. Because we found the 9-1-1 call was improperly admitted, we need not analyze this issue. Nevertheless,
    we note that defendant mischaracterizes the State’s opening statement to contend that the 9-1-1 caller immediately
    identified defendant as the shooter. Rather, the State remarked that “[p]eople knew who the shooter was right away.”
    Then, it stated that defendant was identified as the shooter on the 9-1-1 call and by the witnesses at the scene when
    the shots were fired. In context, we do not find the State indicated that the 9-1-1 caller immediately identified defendant
    as the shooter.
    32
    unlimited. People v. Holmon, 
    2019 IL App (5th) 160207
    , ¶ 49. Prosecutors may not misstate the
    evidence, draw unreasonable inferences from the evidence, or misstate the law. 
    Id.
     When
    determining whether the remarks are proper, reviewing courts do not consider the selected passage
    in isolation, but in the context of the closing argument as a whole. Jackson, 
    2020 IL 124112
    , ¶ 82.
    Reversal is warranted only if the remarks result in subjectional prejudice or it is impossible to
    know whether the improper comments contributed to defendant’s conviction. 
    Id. ¶ 83
    .
    ¶ 100 Defendant first challenged the State’s comments regarding the victim’s personal
    characteristics, hobbies, family relationships, and the senseless nature of the crime. For example,
    the prosecution stated that the case presented “the senseless, tragic violent death of [the victim],”
    that this was “the murder of a truly innocent child,” and that the victim’s “mother found him barely
    fighting for life.” We find that many of these statements were proper commentary on the evils of
    the crime, and the remaining statements regarding the victim’s background were not prejudicial
    enough to warrant reversal. Counsel therefore did not provide ineffective assistance of counsel on
    this basis.
    ¶ 101 Defendant also contends counsel should have objected to the prosecutor’s indication that
    all the witnesses would identify or had identified defendant as the shooter. In opening, the
    prosecutor stated that a number of witnesses “identify defendant as the person who fired the fatal
    shots at [the victim].” In closing, the prosecutor stated, “We know that Defendant personally
    discharged the firearm because all of the witnesses told us that he did.” The prosecutor then
    explained that two witnesses testified that defendant was walking back and forth toward the home
    immediately before the shots were fired, and that Buchanan identified defendant as the shooter.
    While the prosecutor initially stated that all the witnesses testified that defendant was the shooter,
    we do not believe the State’s comments misstated the evidence in context of the whole closing
    33
    argument where it further explained the actual testimony of the witnesses. Accordingly, counsel
    was not objectively unreasonable in failing to object to these statements.
    ¶ 102 Defendant next argues that the prosecutor misstated the evidence when she indicated that
    defendant told police that he did not shoot the gun into the air. In the second interview, defendant
    demonstrated the way he held the gun when he fired it. Initially, he informed officers that he put
    the gun in the air, but when Detective Brooks attempted to verify defendant’s story, defendant
    repositioned his arm closer to a straight line. Moreover, the precise angle of defendant’s arm is of
    no consequence, where the State’s argument was that firing a gun in the general direction of the
    porch created a risk of death or great bodily harm regardless of defendant’s intent. We therefore
    do not find this statement to be improper.
    ¶ 103 We do, however, agree with defendant’s last contention that the State misstated the law in
    closing arguments. In its rebuttal, the State argued, “Defendant is presumed innocent until you
    guys go back to deliberations. At that point that presumption of innocence ends.” This statement
    is incorrect. Defendant is presumed innocent until the jury concludes, during deliberation, that
    there existed proof of guilt beyond a reasonable doubt. People v. Brooks, 
    345 Ill. App. 3d 945
    , 951
    (2004) (citing People v. Viser, 
    62 Ill. 2d 568
    , 585-86 (1975)). Because the State improperly
    misstated the law (Holmon, 
    2019 IL App (5th) 160207
    , ¶ 5), counsel should have objected.
    ¶ 104                                c. Cumulative Effect
    ¶ 105 As noted above, defendant does not contend any individual error warrants a new trial.
    Instead, he contends that the cumulative effect of the errors prejudiced him and denied him of a
    fair trial. We disagree.
    ¶ 106 Where counsel’s errors are not sufficiently grave to entitle defendant to a new trial, a new
    trial may be granted on cumulative error where the errors “create a pervasive pattern of unfair
    34
    prejudice to defendant’s case.” People v. Young, 
    347 Ill. App. 3d 909
    , 923 (2004); People v.
    Howell, 
    358 Ill. App. 3d 512
    , 526 (2005); People v. Carr-McKnight, 
    2020 IL App (1st) 163245
    ,
    ¶ 110; People v. Sims, 
    2019 IL App (3d) 170417
    , ¶ 55. Cumulative error analysis depends on the
    evaluation of counsel’s individual errors. People v. Doyle, 
    328 Ill. App. 3d 1
    , 15 (2002). “ ‘There
    generally is no cumulative error where the alleged errors do not amount to reversible error on any
    individual issue.’ ” Carr-McKnight, 
    2020 IL App (1st) 163245
    , ¶ 110 (quoting People v. Green,
    
    2017 IL App (1st) 152513
    , ¶ 118); Sims, 
    2019 IL App (3d) 170417
    , ¶ 55 (same).
    ¶ 107 We note that many of the claims of ineffective assistance of counsel have been rejected.
    As such, we only consider defendant’s claims in which this court found merit. See Perry, 
    224 Ill. 2d at 356
    . 3
    ¶ 108 While counsel erred in failing to object to two improperly admitted pieces of evidence and
    the prosecution’s misstatement of law, this case was supported with defendant’s own inculpatory
    statements. Defendant admitted to shooting the gun that killed the victim. Moreover, he led the
    detectives to the location where he discharged the gun, which was where the shoeprint was found.
    His statements were also corroborated by a few eyewitnesses, one of which observed defendant
    shooting the gun. While the State also misstated the law regarding the presumption of innocence,
    the comment was isolated, and the court instructed the jurors that presumption of innocence
    remains with defendant during their deliberations on the verdict and is not overcome unless they
    3
    In addition to the above allegations of ineffective assistance of counsel, defendant also contends this court
    should consider the State’s improper bolstering of its witness, Tammy, in our cumulative error analysis. We decline
    to do so.
    Without imparting any blame of counsel, defendant also contends that the State improperly elicited Tammy’s
    prior consistent statements. Other than to rebut charges of fabrication, admission of prior consistent statements is error,
    but “it does not necessarily constitute reversible error.” People v. Williams, 
    264 Ill. App. 3d 278
    , 288 (1993). At trial,
    after Tammy testified that she saw defendant in the area of the crime that night, the State asked, “did you tell [police]
    that you had seen [defendant] that night?” Tammy answered “yes.” The State therefore improperly elicited prior
    consistent statements of its witness. However, because Tammy’s answer provided mere acknowledgement of having
    made a prior consistent statement and the testimony of the witness was corroborated by other evidence, we cannot say
    that such error prejudiced defendant. See 
    id.
    35
    are convinced beyond a reasonable doubt that he is guilty. See Holmon, 
    2019 IL App (5th) 160207
    ,
    ¶ 55. Accordingly, even considering the errors of counsel, we do not find they created a pervasive
    pattern of unfair prejudice.
    ¶ 109                                 B. Sentencing Error
    ¶ 110 In imposing his 50-year sentence, defendant argues the court failed to comply with the
    mandates of Miller v. Alabama, 
    567 U.S. 460
    , 480 (2012), and that his sentence is excessive where
    the State failed to prove that defendant intended to kill anyone. Defendant contends while the court
    mentioned the Miller factors generally, it failed to make a finding—and the record does not show
    that—defendant was incorrigible or beyond redemption. He further asserts the mere mention of
    the factors does not dispose of the requirement that the court “meaningfully consider defendant’s
    youth and attendant characteristics.” People v. Morris, 
    2017 IL App (1st) 141117
    , ¶¶ 30, 32. We
    disagree.
    ¶ 111 The United States Supreme Court has made it clear that a court need not make particular
    findings on the record before sentencing a juvenile to life imprisonment as long as it considered
    youth and its attendant circumstances. In Miller, the Supreme Court held that the Constitution
    requires sentencing courts to consider youth and its attendant circumstances before imposing a
    sentence of life without parole for juveniles. 
    567 U.S. at 480
    . The Court later clarified that “Miller
    did not require trial courts to make a finding of fact regarding a child’s incorrigibility.”
    Montgomery v. Louisiana, 
    577 U.S. 190
    , 211 (2016). Most recently, after oral arguments in this
    case were held, the Supreme Court published Jones v. Mississippi, 
    593 U.S. __
    , __, 
    141 S. Ct. 1307
    , 1316 (2021), which reiterates that the Constitution does not require particular findings
    regarding the Miller factors or incorrigibility before imposing a life sentence for juveniles. Miller
    only requires a discretionary sentencing procedure. 
    Id.
     at __, 141 S. Ct. at 1317. This is so because
    36
    a discretionary sentencing procedure ensures the sentencing court will consider the characteristics
    of youth and that sentences of life without parole are imposed where “appropriate in light of the
    defendant’s age.” Id. at __, 141 S. Ct. at 1318. The Court also rejected the contention that a
    sentencing court must provide an explanation. Id. at __, 141 S. Ct. at 1319. It reasoned where a
    discretionary sentencing scheme allows a court to consider youth and its attendant circumstances,
    the sentencing court will consider such factors. Id.
    ¶ 112 The sentencing court here imposed a discretionary 50-year sentence after being apprised
    of defendant’s youth. In arguing for the minimum sentence, defense counsel specifically referred
    defendant’s age, mental health issues, family life, and maturity. The court also stated that it
    considered the factors relevant in sentencing a juvenile and noted defendant’s “tough life.” As
    such, its imposition of 50 years’ imprisonment complies with Miller and its progeny.
    ¶ 113 Defendant further argues that his 50-year sentence is excessive where the State failed to
    prove that defendant intended to kill anyone and in light of defendant’s mental health issues. The
    trial court is afforded great discretion when imposing a sentence, because—unlike a reviewing
    court—it has an opportunity to weigh such factors as “defendant’s credibility, demeanor, general
    moral character, mentality, social environment, habits, and age.” People v. Etherton, 
    2017 IL App (5th) 140427
    , ¶ 26. Consequently, a reviewing court may not overturn a sentencing decision
    because it might have weighed the factors differently. People v. Stacey, 
    193 Ill. 2d 203
    , 209 (2000).
    A sentencing decision will be overturned only where a trial court abuses its discretion. 
    Id.
     at 209-
    10. “When a sentence imposed falls within the statutorily prescribed range, it will not be found to
    be excessive or an abuse of discretion unless the sentence greatly varies from the spirit and purpose
    of the law or is manifestly disproportionate to the nature of the offense.” Etherton, 
    2017 IL App (5th) 140427
    , ¶ 28. The trial court’s sentence must balance defendant’s rehabilitative potential
    37
    with the seriousness of the offense. 
    Id.
     “However, the court is not required to give more weight to
    the defendant’s potential for rehabilitation than it gives to aggravating factors.” People v. Weiser,
    
    2013 IL App (5th) 120055
    , ¶ 32.
    ¶ 114 While defendant contends a 50-year sentence is excessive where the State did not prove
    that he intended to kill someone, he fails to cite to any authority for this proposition. Based on the
    record, it is clear the court considered both factors in mitigation and aggravation before fashioning
    its sentence that fell within the statutorily prescribed range. The court did not depend on any
    allegation that defendant intended to kill someone in imposing 50 years’ imprisonment. Rather, it
    noted defendant’s prior criminal history, the nature of the crime, and the necessity to deter others.
    Although the maliciousness demonstrated by one’s intent to kill requires deterrence, so does the
    senseless violent action of firing at a group of people over verbal threats or mockery. Based on
    this record, we cannot find the court abused its discretion in deciding to sentence defendant to 50
    years’ imprisonment, 10 years less than the maximum.
    ¶ 115                                  III. CONCLUSION
    ¶ 116 For the reasons above, we find that defendant failed to establish that his trial counsel
    provided ineffective assistance of counsel. We also find that the trial court complied with Miller
    in sentencing defendant to 50 years’ imprisonment and that such sentence is not excessive. We
    therefore affirm defendant’s conviction and sentence.
    ¶ 117 Affirmed.
    ¶ 118 JUSTICE WHARTON, dissenting:
    ¶ 119 Although I agree with much of the majority’s reasoning, I cannot join them in rejecting the
    defendant’s claim of ineffective assistance of counsel. I disagree with the majority on two key
    points related to defense counsel’s failure to file a motion to suppress. First, I believe the record is
    38
    adequate for this court to determine that the defendant was prejudiced by counsel’s failure to
    require the State to prove that the defendant voluntarily waived his right to counsel after previously
    invoking that right. Second, I believe the defendant’s ultimate confession was not voluntary. For
    these reasons, I respectfully dissent.
    ¶ 120 The right and access to counsel stands as the single most important protection individuals
    have against State intrusion on their liberty. This protection is of the utmost importance during
    custodial interrogation by police. For this reason, the United States Supreme Court has held that
    police must scrupulously honor a defendant’s request for counsel. Mosley, 
    423 U.S. at 104
    . Here,
    that did not occur. Instead, the police responded to the juvenile defendant’s invocation of his right
    to counsel by holding him alone in an interrogation room for 4 hours—a form of temporary solitary
    confinement—and keeping him in custody for 24 hours without allowing him access to his mother,
    who could have provided this young defendant with both emotional support and assistance in
    retaining counsel. It is against this backdrop that we must assess whether the defendant actually
    reopened a dialog with police and, if so, whether he did so voluntarily.
    ¶ 121 As the majority correctly points out, the only evidence suggesting that the defendant
    reopened a dialog with police after clearly and unequivocally invoking his right to counsel was
    Detective Brooks’s testimony that after he showed the defendant the arrest warrant, the defendant
    told him “that he wanted to speak with [him] again about the case.” Notably absent from this
    testimony was any indication of what the defendant said to Detective Brooks or any other details
    of their conversation. Thus, the State did not present evidence demonstrating that the defendant
    communicated “a desire for a generalized discussion about the investigation” (Bradshaw, 
    462 U.S. at 1045-46
    ). It was the State that bore the burden of proof on this question. See 
    id. at 1044
    . I can
    39
    think of no sound strategic reason for counsel to fail to hold the State to its burden by filing a
    motion to suppress.
    ¶ 122 The majority finds that because the record does not clearly indicate whether the defendant
    ever stated that he wanted to enter into a general discussion of the crime, his claim is better suited
    to a collateral proceeding in which the record can be more fully developed. I disagree for two
    reasons. First, any incompleteness in the record is the direct result of counsel’s failure to file a
    motion to suppress. The effect of the majority’s holding is to presume that the defendant did reopen
    the dialog unless he can prove otherwise in a collateral proceeding. This shifts the burden from the
    State to the defendant. Moreover, while the Post-Conviction Hearing Act provides an avenue of
    relief for defendants whose claims of constitutional error could not have been raised on direct
    appeal, it imposes procedural hurdles that can be difficult for pro se prisoners to overcome. See
    People v. Gaultney, 
    174 Ill. 2d 410
    , 418 (1996) (explaining that in order to advance to the second
    stage of postconviction proceedings, a pro se petitioner must assert the gist of a constitutional
    claim); 725 ILCS 5/122-1(c) (West 2016) (providing that a petitioner must file his petition within
    the time limits imposed under the Post-Conviction Hearing Act unless he alleges facts
    demonstrating that his delay was not due to his own culpable negligence). Even if petitioners get
    past these procedural hurdles, they are entitled only to the reasonable assistance of counsel, a
    standard that is “significantly lower than the one mandated at trial.” People v. Custer, 
    2019 IL 123339
    , ¶ 30. Claims of ineffective assistance of counsel should thus be considered on direct
    appeal unless the record is truly inadequate to resolve them. See Veach, 
    2017 IL 120649
    , ¶ 46;
    People v. Ramirez, 
    2017 IL App (1st) 130022-B
    , ¶ 14.
    ¶ 123 Second, even assuming the defendant clearly indicated that he wanted to engage in a
    general discussion of the crime, I believe the record contains sufficient evidence concerning the
    40
    circumstances surrounding his decision to do so to allow this court to conclude that his waiver was
    not voluntary. As the majority discussed in detail, the defendant asked to speak to his mother
    multiple times during his first interview. Significantly, he stated that he wanted his mother to
    contact an attorney on his behalf. However, the detectives did not allow the defendant to contact
    his mother, and Detective Brooks told the defendant that she would not be allowed to see him. I
    note that when a suspect in custody has retained counsel, police may not deny the attorney access
    to his client or refuse to inform a suspect that his attorney has attempted to contact him. People v.
    McCauley, 
    163 Ill. 2d 414
    , 444-45 (1994). Under the circumstances of this case—where police
    knew that the juvenile defendant wanted his mother to find him an attorney—denying the
    defendant and his mother access to each other was equally egregious. In addition, the defendant
    was held in an interview room for over 4½ hours, nearly 4 hours of which came on the heels of his
    invocation of the right to counsel, and he was then formally arrested. By the next afternoon—when
    the defendant allegedly told Detective Brooks that he wanted to discuss the case again—the
    defendant had not been permitted to speak to his mother and had not been provided with an
    attorney. These circumstances may well have led the defendant to believe that it would have been
    pointless for him to insist on waiting for an attorney, a belief that was reasonable under the
    circumstances.
    ¶ 124 It is also important to consider the characteristics and conduct of the defendant. See
    Bradshaw, 
    462 U.S. at 1046
    . The defendant was only 17 years old, and he had multiple mental
    health and developmental diagnoses, including a learning disability, attention deficit/hyperactivity
    disorder, depression, and anxiety. These characteristics made him particularly susceptible to the
    circumstances I have just described. I recognize that the defendant’s prior experience with the
    criminal justice system is a factor that can weigh in favor of a finding that his waiver was knowing
    41
    and voluntary. See People v. Jones, 
    2014 IL App (1st) 120927
    , ¶ 51. However, no one factor is
    dispositive. See People v. Braggs, 
    209 Ill. 2d 492
    , 514 (2003). Considering the totality of the
    circumstances, I believe it is reasonably probable that had counsel filed a motion to suppress the
    defendant’s statement on the basis of the detectives’ failure to scrupulously honor his request for
    counsel, such a motion would have been granted.
    ¶ 125 I also do not agree with the majority’s conclusion that the confession ultimately obtained
    was voluntary. The defendant was only 17 years old when he made the statements at issue, and he
    suffered from depression and anxiety. Although there is no evidence in the record concerning the
    defendant’s physical condition during either interrogation, it is clear that, emotionally, he was
    extremely uncomfortable during both interrogations. Throughout both interviews, the defendant
    gave many answers that were barely audible. Several times, he hung his head or slumped in his
    chair. At one point, he pulled his sweatshirt over his face. Although he was offered food during
    both interviews, he declined to eat.
    ¶ 126 During both interrogations, detectives repeatedly lied to the defendant, something the
    majority rightly criticized. They also denied the juvenile defendant the opportunity to speak to his
    mother despite his repeated requests to see her. Although it is not clear whether the defendant’s
    mother attempted to see him and was prevented from doing so, it is clear that the defendant was
    told his mother would not be permitted to see him or speak with him. This is particularly egregious
    in light of the defendant’s request to contact his mother for help finding an attorney.
    ¶ 127 Significantly, Detective Brooks made several comments indicating to the defendant that
    his access to his mother depended upon his willingness to confess. At one point, Detective Brooks
    responded to the defendant’s request to call his mother by asking if he would tell her “the truth.”
    Later, when the defendant again asked to call his mother, Detective Brooks told him that he must
    42
    first tell “the rest of this story.” As the majority emphasizes, Detective Brooks told the defendant
    that he could not specifically promise him that he would be allowed to see his mother if he
    confessed because that would make it “look like” the detective was “making a promise” or
    coercing the defendant. Detective Brooks went on to say, “I need you to tell me the truth because
    you want to tell me the truth.” However, I do not believe this statement was sufficient to overcome
    the detectives’ repeated statements making it crystal clear that the defendant would not be
    permitted to see his mother unless and until he gave a confession. A confession is not voluntary if
    it was “ ‘obtained by any direct or implied promises, however slight.’ ” Malloy v. Hogan, 
    378 U.S. 1
    , 7 (1964) (quoting Bram v. United States, 
    168 U.S. 532
    , 542-43 (1897)).
    ¶ 128 Moreover, the defendant’s comments suggest that he was persuaded by those statements.
    He asked the detectives whether they could do him a favor if he did them a favor. He later told
    Detective Skalsky that he just wanted to see his family and that, after that, he would tell them
    something. Considering this conduct along with the circumstances, I do not believe the defendant’s
    confession was voluntary. Instead, I believe he was persuaded to tell the detectives what they
    wanted to hear because he knew he would not otherwise be allowed to contact his mother.
    ¶ 129 We also cannot overlook the particularly coercive effect the circumstances of the
    defendant’s detention had on him as a young African American. In its June 22, 2020, Statement
    on Racial Justice, the Illinois Supreme Court emphasized the “frailties in our public institutions”
    and their “disproportionate impact” on people of color. See “Supreme Court Releases Statement
    on Racial Justice, Next Steps for Judicial Branch” (June 22, 2020). In addressing the role of the
    judiciary in alleviating these concerns, the supreme court stated as follows: “Where frailties in the
    disposition of justice exist, we will recognize them and acknowledge them and seek to rectify any
    injustice.” See 
    id.
     Here, the defendant was interrogated by three white detectives and held for 24
    43
    hours while police refused to allow him contact with his mother. In doing so, officers not only
    denied this juvenile contact with a concerned family member and assistance in retaining counsel,
    but they also denied him contact with anyone of his socioeconomic standing, cultural experience,
    and race. The voluntariness of both the defendant’s decision to waive his previously invoked right
    to counsel and the confession he ultimately made must be judged in the context of this intimidating
    and coercive environment.
    ¶ 130 Considering the totality of these circumstances, I believe it is reasonably probable that the
    court would have granted a motion to suppress, either on the basis of the detectives’ failure to
    scrupulously honor the defendant’s invocation of his right to counsel or on the grounds that the
    confession ultimately obtained was not voluntary.
    ¶ 131 Finally, I agree with the majority’s analysis of the defendant’s remaining claims of
    ineffective assistance of counsel. However, because I find it reasonably probable that a motion to
    suppress the defendant’s confession would have been granted, I reach a different conclusion
    regarding the probability of a different outcome at trial. I find that the defendant was prejudiced
    by the cumulative effect of counsel’s mistakes—his failure to file a motion to suppress and his
    failure to object to admission of the 9-1-1 recording, the testimony about the shoeprint, and the
    prosecutor’s argument misstating the presumption of innocence.
    ¶ 132 Although there was additional evidence that tied the defendant to the shooting, that
    evidence was not overwhelming. Three witnesses placed the defendant at the scene before the
    shooting occurred. However, all three testified that he left the area before the shooting. Only
    Buchanan testified to seeing the defendant at the scene when the shooting occurred. Although most
    of Buchanan’s testimony was not directly contradicted by the testimony of the other two witnesses,
    their testimony that it was too dark to see anyone in the street detracted from the credibility of
    44
    Buchanan’s claim that he could see the face of the defendant, a man he had never met before that
    evening. I therefore believe that without the improper evidence, including the defendant’s
    confession, there is a reasonable probability of a different result at trial. For these reasons, I would
    reverse the defendant’s conviction and remand for a new trial.
    45
    

Document Info

Docket Number: 5-17-0139

Filed Date: 9/16/2021

Precedential Status: Non-Precedential

Modified Date: 7/30/2024