People v. Parke , 2024 IL App (5th) 220703-U ( 2024 )

NOTICE
2024 IL App (5th) 220703-UNOTICE
Decision filed 10/01/24. The
This order was filed under
text of this decision may be NO. 5-22-0703 Supreme Court Rule 23 and is
changed or corrected prior to
not precedent except in the
the filing of a Petition for
Rehearing or the disposition of
IN THE limited circumstances allowed
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, ) Jefferson County.
)
v. ) No. 16-CF-4
)
ADRIANE L. PARKE, ) Honorable
) Jerry E. Crisel,
Defendant-Appellant. ) Judge, presiding.
______________________________________________________________________________
JUSTICE BARBERIS delivered the judgment of the court.
Justices Cates and Sholar concurred in the judgment.
ORDER
¶1 Held: The trial court erred by denying defendant’s motion to suppress, where
defendant was in custody during questioning at the fire department, requiring
Miranda warnings. The trial court abused its discretion by denying
defendant’s motions to substitute and continue her trial, where the evidence does
not support a finding that defendant’s actions constituted delay or thwarted justice.
¶2 Defendant, Adriane L. Parke, appeals the Jefferson County circuit court’s October 17,
2022, order denying defendant’s motion for a new trial, wherein defendant alleged that the court
erred by denying defendant’s motions to suppress statements and substitute attorney. She argues
that the court (1) committed reversible error by denying her motion to suppress her un-Mirandized
responses to a custodial interrogation, (2) violated her sixth amendment right to counsel by
denying her motion to substitute attorneys, and (3) imposed an excessive sentence. For the
following reasons, we reverse and remand.
1
¶3 I. Background
¶4 On January 11, 2016, the State charged defendant by information with three counts:
(1) aggravated arson (720 ILCS 5/20-1.1(a)(1) (West 2012)), a Class X felony, alleging that
defendant, on December 2, 2015, 1 knowingly partially damaged the Drury Inn in Mt. Vernon,
Illinois, when she knew or reasonably should have known that one or more persons were present
therein; (2) arson (id. § 20-1(a)(1)), a Class 2 felony, in that defendant knowingly, without consent
of the Drury Inn, partially damaged the Drury Inn by means of fire; and (3) criminal damage to
property (id. § 21-1(a)(1)), a Class 4 felony, in that defendant knowingly committed partial damage
to the Drury Inn in excess of $300 but not in excess of $10,000. A grand jury subsequently returned
a bill of indictment charging defendant with the same.
¶5 On June 7, 2017, while defendant remained out of custody on bond, defendant’s attorney,
Attorney Bryan Drew, filed a motion for fitness examination. Attorney Drew alleged a bona fide
doubt as to defendant’s fitness to stand trial, requesting that the trial court order a mental
psychiatric examination of defendant, which the court subsequently granted.
¶6 On December 1, 2017, Dr. Angeline Stanislaus, a board-certified psychiatrist in general
and forensic psychiatry, determined defendant fit to stand trial. Dr. Stanislaus’s report indicated
that she evaluated defendant on September 7, 2017, at which time Dr. Stanislaus diagnosed
defendant with borderline intellectual functioning. Despite this, Dr. Stanislaus believed defendant
had a good understanding of the charges and the nature of the proceedings against her, as well as
the ability to rationally communicate with her attorney and assist him in her defense. The report
also indicated that defendant’s “younger sister helps her with things if she cannot understand
1
The State’s original information incorrectly stated that the alleged criminal offenses took place on
December 2, 2016. On January 22, 2016, the State filed a bill of indictment amending the date of the
offenses as December 2, 2015.
2
something.” The trial court, relying on Dr. Stanislaus’s opinion and report, subsequently found
defendant fit to stand trial.
¶7 On January 2, 2018, defendant filed a motion to suppress. Defendant requested that the
trial court bar the State from adducing any and all statements made by defendant to Detective
Nathan Franklin of the Mt. Vernon Police Department and Fire Investigator Shane Emrich of the
Mt. Vernon Fire Department during a custodial interrogation on December 23, 2015, at the Mt.
Vernon Fire Department. Specifically, defendant claimed that Emrich engaged in a custodial
interrogation with Franklin, a police officer, without advising defendant of her Miranda rights (see
Miranda v. Arizona, 384 U.S. 436 (1966)). Defendant also claimed that Emrich and Franklin
controlled the questioning concerning defendant’s criminal involvement as a suspect in the fire on
December 2, 2015, asserting that “[n]o reasonable person would have believed that they were in
anything other than a custodial interrogation.”
¶8 On May 24, 2018, the trial court held a hearing on defendant’s motion to suppress. The
State called Emrich to testify first.
¶9 Emrich testified that on or about December 15, 2015, a security officer at the Drury Inn
informed him that defendant, a housekeeper at the hotel, may have been involved in starting the
December 2, 2015, fire. Emrich also received an internal investigation report from the Drury Inn
on December 15, 2015. As such, Emrich believed defendant may be a suspect. Sometime between
December 15 and December 19, 2015, Emrich contacted defendant via phone to set up an
interview. On the phone, Emrich and defendant scheduled the interview for December 23, 2015,
agreeing that “the fire station would be [a] convenient” place to meet. Defendant asked if her
husband, Jeremy Parke, could be present during the interview. Emrich, who knew Jeremy from
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work, agreed to defendant’s request. Emrich confirmed that he provided defendant with the choice
of when and where to meet.
¶ 10 On December 23, 2015, defendant and her husband, driving their own personal vehicle,
arrived at the Mt. Vernon Fire Department. Emrich greeted defendant and Jeremy in the living
quarters, at which time Emrich offered Jeremy “a seat with the other firemen that were present in
the lounge area.” Emrich testified that he and Franklin walked upstairs with defendant to an office
adjacent to the sleeping quarters. While walking upstairs, Emrich told defendant that he planned
to conduct an “information gathering interview” with her in an effort to conclude his investigations
for the year. Emrich confirmed that he told defendant that “she was going to go home today.”
¶ 11 During the interview, Emrich sat at the end of the desk, while Franklin sat behind the desk.
Emrich wore his uniform and Franklin wore a dress shirt, tie, and slacks and carried a weapon on
his person. Defendant sat in front of the two men, between two doorways. Neither Emrich nor
Franklin sat between defendant and the two doors. Emrich interviewed defendant for
approximately 51 minutes, describing the interview as “pleasant” and defendant as “receptive.”
Emrich testified that he spoke to defendant for the first 25 minutes of the interview, while Franklin
remained quiet. Emrich testified that neither he nor Franklin physically restrained defendant,
arrested her, or showed her a weapon in a show of force. Defendant never asked to have her
attorney present.
¶ 12 On cross-examination, Emrich testified that the internal investigation report from the Drury
Inn accused defendant of starting the fire. The report included inconsistences between defendant’s
statements and the opinions of the Drury Inn’s internal investigator as to how the fire started.
Emrich clarified that Franklin wore his uniform in the interview, which included a dress shirt, a
tie, and slacks. Emrich admitted that he did not invite Jeremy to the office when defendant and
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Jeremy arrived at the fire department. Emrich confirmed that he had knowledge that defendant was
a suspect prior to the December 23, 2015, interview. Emrich also testified that he contacted
Franklin to assist him because Franklin was “a good interviewer.” Emrich admitted that neither he
nor Franklin suggested that defendant have her attorney present, and that they both challenged the
truth of defendant’s statements during the interview. The following colloquy took place between
Attorney Drew and Emrich:
“Q. If your goal was simply to get information and get her story, why would you
challenge her statements you believed to be false?
A. I was gaining information.
Q. And you had a police officer present, correct?
A. He was there, yes.
Q. And your goal was to gain information for that police officer in this investigation
of a potential arson, correct?
A. My goal is to gain the truth.”
¶ 13 On redirect examination, Emrich clarified that neither defendant nor Jeremy requested
Jeremy’s presence in the interview when they arrived at the fire department on December 23, 2015.
Emrich confirmed that he knew defendant’s husband—a paramedic for the private ambulance
service in Mt. Vernon—and had a work-related relationship with him. Emrich stated that he
“believed [defendant] knew who [he] was and where she was at” during the interview. Emrich
testified that he did not observe any mental deficiencies on defendant’s part.
¶ 14 On recross-examination, Emrich confirmed that, although he did not deny Jeremy access
to the interview, he offered him a seat in the lounge area. The following colloquy took place
between Attorney Drew and Emrich:
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“Q. And do you remember [Detective Franklin] saying I explained to her that I had
done several interviews, and I have learned to pick up on things when people are lying?
A. Uh-huh.
Q. Did you hear that?
A. Yes.
***
Q. You don’t believe that was challenging her or accusing her of not telling the
truth?
A. She wasn’t telling the truth.
Q. Were you there when he also said to her[,] I told her if Investigator Emrich is
telling us the fire wasn’t started by the candle, that I believe him?
A. I was there.
Q. And that he told [defendant] that it was much more difficult to carry on a story
of lies than it is to tell the truth. Were you there then as well?
A. I was.
Q. And did you also—were you also there at that point in time when [defendant]
said that she was scared?
A. Yes.
Q. But you don’t believe that [defendant] was being interrogated or challenged with
her answers. You were just simply trying to get the truth.
A. She stated she was scared at the time of the fire, not at the time of the interview.
Q. Well, in the report, Mr. Franklin, he says that she said she was scared and felt
like a failure. She didn’t feel like a failure back that day. She’s referring to that very
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moment [during the interview], correct?
A. I don’t know.”
Following Emrich’s testimony, the trial court went off the record to watch the 51-minute interview
from December 23, 2015.
¶ 15 The recorded interview demonstrated the following. Defendant sat down at a desk, and
Franklin fixed the camera before he sat down. Emrich first provided defendant a bottle of water,
informed her of the two exits in the room, and then stated that he planned to record the interview.
Defendant then provided her version of the events that took place at the Drury Inn on December
2, 2015. Defendant initially entered room 603 to straighten up the room. Once inside, defendant
accidentally knocked over a candle. Defendant did not see any flames or a fire at that time, so she
left to clean “other rooms.” After “something didn’t feel right,” she decided to go back into room
603 to check the candle. When she entered room 603, she saw a fire, which prompted her to call
9-1-1 in room 601.
¶ 16 Emrich then asked defendant to clarify the specific housekeeping duties she performed the
first time she entered room 603. Defendant stated that she restocked the towels and made the bed,
clarifying that she only “clean[ed] up the pillow part” of the bed. She then left room 603. Defendant
clarified that she accidentally knocked over the candle on the coffee table while tucking in the
pillows. At that time, she noticed that the candle “tipped over,” causing wax to spill “all over.”
She stated, again, that she did not see any flames or a fire, so she left the candle knocked over. She
left to “clean another room” before she returned to room 603. When she reentered room 603,
defendant saw a fire, prompting her to call 9-1-1 and her supervisor. Following instruction from
her supervisor, defendant went downstairs. Defendant stated that she did not go back into room
603. Defendant indicated that the fire on the coffee table was near the lamp. She did not try to put
7
out the fire because the fire “looked too big,” which scared her. Defendant confirmed that she
worked as a first responder at the time of the interview.
¶ 17 In responding to defendant’s version of the events, Emrich stated that her “facts [didn’t]
really line up,” indicating his belief that she was not “completely forthright with [him].” Emrich
asked defendant “to be honest.” In response, defendant stated that the candle “was already lit”
when she walked into room 603, however, when she tipped over the candle, she thought the wax
“would put [the fire] out.” When she left room 603 the first time, she did not see any fire or smoke.
Emrich asked defendant if she wanted to change any version of her story. Defendant responded
that she called 9-1-1 and a fellow housekeeper, who was also a firefighter, after she saw the fire in
room 603. Defendant, again, stated that the candle was lit the first time she walked into room 603.
She reiterated that she did not see any flames or a fire when she left room 603 the first time. Emrich
responded: “I know you are not telling the whole truth.” Defendant, again, denied that she lit the
candle. Defendant then stated that she went into room 603 on three, not two, occasions. She stated
that after she called 9-1-1, she went back into the room to “see the fire.” She called a fellow
housekeeper at that time. Emrich asked defendant to tell her story again.
¶ 18 Defendant stated that after she saw the fire in room 603, she called 9-1-1 but could not
reach dispatch. She then went back to room 603 to check on the fire before she called 9-1-1 from
room 604. She, again, did not reach dispatch, so she called the front desk and her supervisor. She
then went into room 603 before she walked downstairs. Defendant then stated that she went into
room 600 and “just stayed there” to “see if [she] could do whatever to help.” At some point,
defendant walked downstairs to help people exit from the front of the building. In response, Emrich
stated, “to be a hero,” to which defendant stated, “yes.” Emrich stated: “You’re still not telling me
the truth.” Defendant responded, “that’s all that happened.”
8
¶ 19 Defendant then responded that she became scared, so she went into rooms 600 and 601.
Emrich asked why, if she was scared, she went into rooms near the fire. Defendant stated that she
wished to help. She was scared of the fire, so she did not put the fire out. Defendant also noted that
she never put out a fire, indicating that she had only held the water hose while working for the fire
department. When she heard her supervisor, who had breathing issues, walk up the stairs,
defendant’s “first responder” instinct kicked in. Emrich informed defendant that her story,
specifically, that she did not put out the fire when she first saw it in room 603, did not make sense
to him. Defendant responded that she thought the wax would put the fire out when the candle
tipped over. Defendant stated that she did not know how to use a fire extinguisher.
¶ 20 Emrich then informed defendant that “the candle did not start the fire.” Defendant, again,
stated that the candle tipped over, and she denied that she lit anything on fire. Emrich responded
that the candle could not have started the fire because the candle was not tipped over. Emrich stated
that he understood if defendant wanted to “save the day” by finding the fire and helping people.
Emrich then stated: “I already know everything.” While leaning forward in his chair towards
defendant, Emrich stated: “Tell me what really happened.” Emrich encouraged defendant to tell
the truth, stating: “You tell me the truth, get it off your chest, and you walk out of here today, you
go home, you can enjoy the holidays with your family. *** Just tell me what happened.”
¶ 21 Approximately 19 minutes into the interview, defendant stated that the candle flame went
out after she knocked over a candle in room 603 while cleaning. She decided to relight the candle
with “a small piece of paper” that “caught real [sic] fast.” She relayed that she was unable to stop
the fire from burning everything around the candle on the table. Emrich responded: “I can tell
you’re telling me a portion of it. *** I’ve been doing this for a long time. I know how things burn
and what can burn.” Defendant responded, again, that she lit paper on fire. Emrich stated: “There
9
is more to this [story].” Defendant clarified that it was “cardboard paper.” Emrich then referenced
that defendant must be scared “right now.” Emrich encouraged defendant to tell the truth, stating
“we are not arresting you today, you’re going home.”
¶ 22 Defendant responded that she did not have a lighter but used paper to restart the candle.
Emrich told her that a piece of paper would not catch a table or wall on fire. He then stated to
defendant: “You put something between the candle and the wall ***, didn’t you?” Defendant
denied lighting the wall on fire, informing Emrich, again, that she lit the candle on the table with
a piece of paper. Emrich stated, “that’s not the truth, just tell me the truth.” Defendant responded
that she already told Emrich the truth. Again, Emrich requested defendant tell the truth from the
beginning. Defendant stated the same story as indicated above.
¶ 23 Approximately 25 minutes into the interview, Franklin spoke up, stating that he heard
“major inconsistencies” with defendant’s story. Franklin informed defendant that he was trained
to listen to people talk, stating to defendant: “You are clearly not telling us the truth.” Franklin
informed defendant that “she has left out a lot” from her story. Franklin encouraged defendant to
tell the truth, acknowledging that it might have frightened her to hear he was a police officer.
Defendant slightly nodded her head. Franklin also told defendant that she would go home for the
holidays. Defendant started to cry, stating, “I’m scared, I feel like a failure.” Defendant stated, “I
don’t want my daughter to come visit me in prison.” Franklin encouraged defendant to state the
truth and not worry about the consequences.
¶ 24 Defendant, while crying, stated that she tried to relight the candle with “heavy cardboard
paper,” but the paper fell behind the nightstand and caught the wall on fire. Defendant stated she
did not have a lighter. She then stated that she had a washcloth on the table that fell back by the
wall. Emrich stated two times that he did not believe her story. Emrich informed defendant that a
10
piece of paper could not light a wall on fire. Emrich encouraged defendant to tell the truth, which
would make her feel better and allow her to go home and enjoy the holidays with her family.
¶ 25 Emrich acknowledged that defendant felt scared before he stated: “Tell me what really
happened.” Defendant responded, while tearful and pulling on her jeans, that she lit the candle and
dropped “something,” but she denied that she started the wall on fire. Emrich responded, “that’s
not what happened.” Franklin stated that he understood defendant was scared. Franklin stated,
however, that “the writing is on the wall,” and he and Emrich knew that she “intentionally” lit
something that started the fire. Franklin, looking and pointing at Emrich, stated to defendant, “I
don’t think there’s any doubt between us that that’s not the case.” Franklin also stated that he felt,
based on defendant’s facial expressions, that she really wanted to tell the truth but was scared to
be honest. Franklin then stated that God was the only person who could judge her and that
“[g]etting [the truth] off your chest is the key to getting past it.”
¶ 26 Defendant stated that she dropped the washcloth on the lit candle and the washcloth fell
behind the nightstand while cleaning room 603. She then left room 603. Defendant “didn’t feel
right,” so returned to room 603 and saw the wall on fire. Defendant clarified that the washcloth
fell on top of the candle. Emrich asked if she left the washcloth on the candle. Defendant responded
in the affirmative, stating that the fire “was already too big,” and she was scared.
¶ 27 Franklin then asked defendant if she had a motive to start the fire. Franklin asked defendant
whether she had issues at work or wanted to be celebrated by her employer for reporting the fire.
Defendant stated that she wanted her employer to recognize her as a hero. Defendant stated, again,
that the washcloth fell off the candle and behind the nightstand. She then left room 603 to call 9-
1-1. Defendant reentered room 603, saw the fire, and then retreated to a nearby room to call 9-1-
1. She, however, never received a response from dispatch, so she called the front desk and her
11
supervisor. Defendant then went to room 600 to “see if [she] could help because [she] felt bad for
what [she] did.”
¶ 28 Defendant stated, again, that the candle was “already burning” when she entered room 603
the first time. She stated that she tried to put out the fire with the washcloth, but the washcloth
“caught the whole thing on fire.” Defendant agreed with Franklin that she noticed the candle in
room 603 before she went to another room to clean. While cleaning another room, she decided to
go back into room 603 and throw a washcloth on the candle, giving her an opportunity to be a hero
and “to shine.” She left room 603. Upon returning to room 603, she noticed a big fire. Emrich
responded, “that makes sense.” Defendant said that the washcloth caught on fire, and the fire got
too big for her to put out. Defendant admitted that she lit the fire, so she could put out the fire
herself. Defendant denied that she had prior thoughts about starting a fire to gain recognition and
praise. Defendant stated:
“There’s all—you know [people who] do drugs, this that at work, well, and the assistant,
and I was like, well I want what her spot is. I wanna [sic] be[,] I’m a good person. *** I
deserve *** like, maybe they’ll recognize me now and—it didn’t happen that way. I
learned.”
After the court viewed the footage of the video recording, the State rested.
¶ 29 Next, Attorney Drew called defendant to testify on her own behalf. Defendant, a
housekeeper at the Drury Inn, also worked as a first responder with the Mt. Vernon Fire
Department at the time of the incident. As a first responder, defendant assessed medical conditions
by taking blood pressure, performing CPR, and assessing medical situations. Defendant testified
she asked Emrich to have her husband with her during the interview, stating: “I can’t talk—I don’t
understand a lot of things and he helps me.” Defendant testified that she dropped out of high school
12
and did not have her general education development (GED). Defendant suffered physical and
sexual abuse from the ages of 5 to 14 years old. As a result of this abuse, defendant testified that
“once [people] start talking to me, I get confused and say whatever they want to hear to get them
off my back or whatever.” Defendant testified that she took three medications for depression at the
time of the interview in 2015.
¶ 30 Specific to the interview, defendant testified that Emrich met her and Jeremy when they
arrived at the fire department. Emrich “told [Jeremy] to sit down,” and defendant walked upstairs
with Emrich, where she saw Franklin for the first time “sitting out behind his desk *** with his
legs propped up on the desk.” Franklin did not introduce himself to defendant. Instead, Emrich
“told [her] that [Franklin] was there for him, to help him with whatever.” Defendant testified that
she did not feel she could leave once Emrich started to question her. Neither Franklin nor Emrich
Mirandized defendant.
¶ 31 On cross-examination, defendant admitted that she did not inform Emrich or Franklin of
her prior physical or sexual abuse during the interview. She clarified that neither of them asked
her. Defendant did not tell Emrich or Franklin that she felt scared to be in the room with both men.
Although defendant knew Emrich, she testified, “I just went along with them to get them off my
back.” Defendant testified that she spent time in a psychiatric ward at the age of 15. She, however,
did not tell Emrich and Franklin about her psychic admission or that she felt mentally depressed
during the interview. Defendant admitted that she did not ask Emrich on December 23, 2015, if
Jeremy could come upstairs to the interview room with her.
¶ 32 Following defendant’s testimony, the trial court denied defendant’s motion to suppress. In
ruling that Emrich and Franklin did not conduct a custodial interrogation, the court stated that it
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did not believe defendant’s lack of a high school education had “any bearing on a person’s
intelligence or ability to understand things.” The court proceeded to state:
“I would point out that my father didn’t even finish eighth grade, and he was one of the
smartest people I ever knew. That was a different time. Also, [defendant] is able to be a
first responder. *** [S]he does have the ability, the intellectual ability to assess medical
situations, and she said take blood pressure or administer CPR.
*** From watching the video and listening to it, it did appear that it was a large—
I consider it a large room, certainly much larger than most interrogation rooms that I have
seen. There was easy access and exit to the place. She was not placed in a position where
she was blocked from the door. In fact, one door that I could see was left open *** which
was the exit out of that room.
She was sitting across the table from the police officer, who during almost all the
time that Mr. Emrich was questioning her didn’t even seem to be paying attention. He was
making notes, and looking at his phone and doing other things. He wasn’t even looking at
her. And so it wasn’t some sort of a sta[re] down tactic.
I did notice that she had a bottle of water there placed in front of her, and she did
seem to be pretty relaxed during the time that she was interviewed. Now, as the interview
progressed, I could tell that she got tense somewhat, changed a little bit of body language,
but—so I did make that note. She did seem to be very responsive to the questions. Seemed
to be able to understand what was being said, and I didn’t notice confusion or her being
under the influence of anything or anything like that. There’s nothing to indicate to me that
she was having a mental health issue, um, or that she was coerced in any way. The
interviewers were very low-key compared to most police interviews I have watched over
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the years and took a kind tone.
I don’t know. Invoking God’s approval or disapproval, I’m not sure about that, um,
but I believe that it is lawful for police officers to lie to the person that they are
interrogating. And so[,] I doubt that invoking God—although it may not be in the best taste,
I doubt it’s illegal.
*** I don’t believe that [defendant’s] freedom of action was deprived in any
significant way.
[Defendant] was contacted by Mr. Emrich, and according to him they consulted on
when and where to have the interview. She came or—was brought by her husband, but she
came of her own free will. I didn’t detect anything that indicated that she was not there of
her own free will. Um, I detected nothing on the part of either one of the persons
interviewing her that showed that they were mean to her or threatening her in any way. She
was told more than once that she was going to be leaving, going home.
Um, so, taking all of those things into consideration, the interrogation I believe was
noncustodial.”
Thus, the court denied defendant’s motion to suppress.
¶ 33 On September 30, 2018, Attorney Drew filed a motion for substitution of attorneys. In the
motion, defendant agreed to Attorney Drew withdrawing his appearance and Attorney Duane
Verity entering his appearance.
¶ 34 On October 3, 2018, the trial court held a final pretrial hearing, with Attorney Verity
present in the courtroom with defendant. Attorney Drew was not present. That same day, Attorney
Verity filed a motion to continue defendant’s jury trial. The court then heard argument on
defendant’s motions. Following the State’s oral objection to defendant’s motion for substitution
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of attorneys, the court “believed this Motion *** should be attended by Mr. Drew, who is not
here.” After the State informed the court of Attorney Drew’s presence in the courthouse that day,
the court took a quick recess to locate him. Following the recess, Attorney Drew’s associate,
Attorney Brady Allen, appeared. Attorney Allen informed the court that he had no personal
involvement in defendant’s case. Attorney Allen stated that Attorney Drew had availability to
attend a hearing tomorrow, October 4, 2018, concerning defendant’s motion. As such, the court
reset the hearing for the next day.
¶ 35 On October 4, 2018, the trial court held a hearing on defendant’s motion for substitution
of attorneys. Attorney Drew informed the court that defendant “no longer wanted [his] services,
which is, [he] believe[d] her right to do.” In response, the State objected to any continuances of
defendant’s jury trial. The court then questioned Attorney Verity as to whether he was ready,
willing, and able to enter his appearance and represent defendant at trial in five days on October
9, 2018. Attorney Verity responded that he was ready to represent defendant but not ready to
defend a Class X felony at trial. The court, citing People v. Segoviano, 189 Ill. 2d 228, 245 (2000),
stated that it “must inquire into the actual request to determine whether it’s being used merely as
a delaying tactic.” The court then listed four factors to consider to determine if defendant’s request
constituted a delaying tactic, including (1) whether defendant articulates an acceptable reason for
desiring new counsel, (2) whether defendant has continuously been in custody, (3) whether
defendant informed the court of her efforts to retain counsel, and (4) whether defendant has
cooperated with current counsel. With regard to these factors, the court stated the following:
“A couple of things that I can note for the record. This matter has been pending.
Mr. Drew entered his appearance on January 21, 2016, Ms. Parke, and you posted bail on
February 2 of 2016, so you have not been in custody since that time. There was a TASC
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referral made. This matter was then set for jury trial originally—a year passed. It was set
in 2017. There was a bona fide doubt raised by your attorney as to your fitness to stand
trial. You were evaluated as you may recall. The evaluator found you fit for trial. The Court
found you fit with counsel having stipulated to that report. The jury trial that was originally
set was vacated, then it was reset in September of ‘17. That, um, matter then eventually
was vacated. There was a change of plea set. That did not occur. There was a Motion to
Suppress hearing which took place. That was a lengthy matter. The Court then also reset
the jury trial again. It was vacated again, and this was by agreement of the State, I think.
Um, at any rate, now it’s set again for October 9.
And it seems to me that on *** July 11 this matter was set for jury trial today and
pretrial August 13. August 13 Mr. Drew appeared. The matter was set for final pretrial
conference. The Court has not received any, any comments from anybody that there was
another attorney in the works, that you were dissatisfied, Ms. Parke. And so that’s the last
this court heard was August 13 until, um, yesterday. This trial was set specifically to make
accommodations. It was set during the civil week because this is a very busy county but
that’s fine. We can do it.
Um, so the Court—I think—first off, I don’t believe the Court has any obligation
to allow an attorney to withdraw certainly on the eve of trial and this is in essence on the
eve of trial since it’s a court holiday Monday, and we set the final pretrial as close to the
trial as we could to accommodate everyone.
So, um, I think the motion to substitute is appropriate, that it be filed. I don’t hold
that against anybody. And um, I have no doubt that Mr. Verity knows his way around
criminal court. And I would like to really know, Mr. Drew, what—I guess without
17
revealing attorney-client privilege or anything like that, I would like to know why this
wasn’t filed a lot sooner than it was?”
¶ 36 Attorney Drew responded that he filed the motion immediately after defendant informed
him of her decision to seek new counsel. Attorney Drew stated the following:
“Ms. Parke has remained in contact with me. She has—she hasn’t thwarted my
representation of her or been lacking diligence in that. We have met on multiple occasions,
both before motions to suppress hearings and subsequent. I[n] my opinion based on my
interaction with her, I don’t view this request by her as being anything more than a loss of,
I guess, confidence in my abilities and a choice to go with another attorney, which I think
is her prerogative to do. I understand the case has been pending for some time, but I do
believe that she’s not doing it solely for the purpose of delay.
Under the circumstances, it is somewhat late. Um, a little, I guess, surprising on my
behalf, but, I mean, clients can lose faith in attorneys for whatever reason. And once they
do, that’s where she’s at and seeks Mr. Verity. Under the circumstances *** from my
interactions with her, I don’t see—this is her first time requesting this. I don’t believe it’s
a case—circumstances where she’s just simply trying to avoid a trial in the case or avoid
that. I think she wants a trial counsel of her choosing, which she has chosen at this point in
time.”
Attorney Drew then stated that if Attorney Verity entered representation but was unable to
represent defendant at trial on October 9, 2018, he would enter a motion for a “brief continuance
of a month or a month and a half.” Attorney Drew clarified that the court continued defendant’s
trial—and he acquiesced—because the State had a murder case set for the same time. Attorney
Drew continued to state: “So clearly, it wasn’t necessarily the Defendant’s request to continue the
18
trial the last time, although we acquiesced in it, and understand and were perfectly comfortable
with moving it under the circumstances.” Attorney Drew asserted that he did not believe defendant
requested new counsel for “nefarious purposes or to thwart the administration of justice.” Instead,
he believed her request was “genuine *** to have counsel of her choosing,” especially since it was
the first time that she made such a request. Attorney Drew asserted that the court’s denial would
be highly prejudicial to defendant. Attorney Drew reiterated defendant’s cooperation throughout
the length of his representation.
¶ 37 Following a brief recess, the trial court asked defendant to explain her decision to change
attorneys before trial. Defendant stated that she lost confidence in Attorney Drew during a final
pretrial meeting. Defendant specifically stated: “After I met with [Attorney Drew], he told me his
decision, and I didn’t feel confident, so I seeked [sic] a different counselor.”
¶ 38 In response, the State requested the trial court deny defendant’s motion, arguing that
defendant’s motion to substitute attorneys served as “nothing more than a delay of the trial.” The
State detailed the timeline of defendant’s case, stating that the trial court originally scheduled
defendant’s trial for January 10, 2017; however, the court allowed a continuance on January 3,
2017, “because we were told there was going to be a possible plea.” When defendant did not enter
into a plea deal with the State, the court set defendant’s trial for June 16, 2017, which Attorney
Drew confirmed on April 18, May 2, and May 31, 2017. On June 7, 2017, six days before trial,
Attorney Drew raised a bona fide doubt as to defendant’s fitness. After the court found defendant
fit to stand trial, the court set defendant’s trial for August 20, 2018.
¶ 39 The State also argued that the parties, by agreement, decided on July 11, 2018, to reset
defendant’s trial from August 20, 2018, to October 9, 2018. On August 13, 2018, both parties
agreed to October 9, 2018, as defendant’s trial date. The State argued:
19
“We have received absolutely no word from August 13 until here, the eve of trial,
that, um, this was not going to be a trial. It’s a 3-year-old case. I think that the
administration of justice is thwarted. The State has subpoenaed all of its witnesses. We are
ready to go. I think that the history would reflect that delay favors the Defendant because
witnesses move, they die, they change jobs.”
The State further argued that defendant’s request to substitute attorneys demonstrated a repeated
pattern “of we get it set and something always occurs to get it continued.” The State asserted that
“there has always been something that comes up that has to move her [trial],” including when
defendant informed the State that she would plead guilty but ultimately chose not to on several
occasions. According to the State, defendant’s motion to substitute attorneys demonstrated another
delay tactic.
¶ 40 In response, Attorney Drew stated that at a meeting on October 2, 2018, he and defendant
disagreed on “strategy and other things that I won’t delve into the details of *** but some issues
as it relates to that. And I believe at that point that she had lost confidence in my ability to represent
her ***.” Attorney Drew argued that, although a delay would take place if the trial court granted
defendant’s motion, the State failed to present any evidence of prejudice. Again, Attorney Drew
asserted the following:
“I don’t believe based on my discussions with [defendant] that this is any attempt by her
to [delay]. It is simply an attempt to retain the counsel of her choosing to [defend] her case
in the matter in which she wants, and I would request of the Court to give her that
opportunity.”
¶ 41 The trial court then asked Attorney Verity if he would be ready to go to trial on October 9,
2018. The following colloquy took place between the court and Attorney Verity:
20
“MR. VERITY: In good conscience, I don’t believe so, Judge. I believe I am going
to stay with the ruling in Childress on this one. She is not only entitled to counsel of her
choice[,] but she is entitled to counsel who is prepared. The notion that this, which I have
just listened to, is a tactical delay flies in the face of my almost 30 years of law practice
where this has never been an accusation that I have endured. I am not complicit in any
delay. I am complicit in seeing to it that a defendant who is facing a Class X felony is not
driven to trial by convenience.
***
THE COURT: I don’t think anybody is accusing you of anything, Mr. Verity.
MR. VERITY: It just didn’t hit me right, Judge, when I heard it, and I think
Childress just spoke to it exactly right. Thank you.”
¶ 42 Following argument by the parties, the trial court denied defendant’s motion for
substitution of attorneys. The court reasoned that defendant’s case was three years old. The court
also noted that defendant posted bond following her arrest and had been out of custody since that
time. In addition, the court noted that Attorney Drew, an experienced criminal lawyer, represented
defendant for years, had defended a number of jury trials in his career, and had indicated that
defendant had been compliant and cooperative through the length of his representation of her. The
court also considered that defendant’s matter “is now in its fourth jury setting. It certainly has gone
much longer, I think, than normal case life, at least in this county in recent times.” As such, the
court stated:
“I think that any further delay would be against the need for efficient and effective
administration of justice. *** I have not been satisfied with the articulation of the reason
for changing counsel a few days before [the] jury trial is to take place, um, so that would
21
be the ruling of the Court.”
In denying defendant’s motion, the court, considering Attorney Drew’s heavy investment in
defendant’s case, ordered Attorney Drew to continue representing defendant.
¶ 43 The trial court held defendant’s jury trial on October 9 and 10, 2018. At trial, Attorney
Drew did not represent defendant. Instead, Attorney Allen, a newly licensed associate of Attorney
Drew not previously involved in defendant’s case, represented defendant. Following the close of
evidence, the jury unanimously found defendant guilty of aggravated arson.
¶ 44 On January 3, 2019, the trial court subsequently sentenced defendant to 10 years in the
Illinois Department of Corrections. Defendant did not file a posttrial motion.
¶ 45 On January 14, 2019, Attorney Drew moved to withdraw as defendant’s counsel. On
January 25, 2019, defendant filed a pro se letter with the trial court pertaining to trial counsel
representation. 2 Specifically, defendant stated the following:
“I am pleading to the courts for an appeal as I feel I was not represented to the best of my
lawyer[’]s ability. I feel your honor there was things that should have been done as I asked
and paid to get done that have not been. Witnesses that should have been called upon and
were not. *** I am asking you Judge Crisel to please except [sic] my appeal for a fair
justice.”
¶ 46 On February 1, 2019, while Attorney Drew’s motion to withdraw as defendant’s counsel
was pending, Attorney Drew filed a timely notice of appeal. On appeal, this court remanded
defendant’s case to the trial court to conduct a preliminary Krankel hearing into defendant’s pro se
claims of ineffective assistance of counsel. See People v. Parke, No. 5-19-0051, ¶¶ 8-9 (2021)
2
Defendant’s pro se letter to the trial court failed to specify whether Attorney Drew and/or Attorney
Allen rendered ineffective assistance of counsel.
22
(unpublished summary order under Illinois Supreme Court Rule 23(c)). This court issued its
mandate on February 24, 2021.
¶ 47 On March 29, 2021, the trial court, with defendant appearing pro se, conducted a Krankel
preliminary hearing on remand. After taking the matter under advisement, the court determined in
a written order, dated April 26, 2021, that some merit existed as to defendant’s allegation of
ineffective assistance of counsel with regard to the failure of Attorneys Drew and Allen to file a
motion for a new trial. The court appointed counsel for defendant.
¶ 48 On April 7, 2022, defendant, represented by counsel, filed motions for a new trial and to
vacate the jury verdict and to reconsider sentence. Relevant to this appeal, defendant’s motion for
a new trial alleged that the trial court erred by denying defendant’s motions to suppress statements
and for substitution of attorneys. The court held a hearing on defendant’s motions on September
15, 2022. After taking the matter under advisement, the court entered a written order denying both
motions on October 17, 2022. Defendant filed a timely notice of appeal.
¶ 49 On June 14, 2024, after both parties filed their respective briefs, defendant filed a motion
to take judicial notice of the disbarment of Attorney Allen, defendant’s trial attorney, after our
supreme court granted Allen’s motion to have his name removed from the master roll of attorneys,
pursuant to Illinois Supreme Court Rule 762(a) (eff. July 1, 2017). This court ordered the motion
taken with the case, and we grant defendant’s motion.
¶ 50 II. Analysis
¶ 51 On appeal, defendant argues that the trial court (1) committed reversible error by denying
her motion to suppress her un-Mirandized responses to a custodial interrogation, (2) violated her
sixth amendment right to counsel by denying her motion to substitute attorneys, and (3) imposed
an excessive sentence. For the following reasons, we reverse and remand.
23
¶ 52 A. Motion to Substitute Attorneys
¶ 53 We first address defendant’s argument that the trial court violated her sixth amendment
right to counsel by denying her motion to substitute attorneys. While an accused’s right to counsel
(U.S. Const., amends. VI, XIV; Ill. Const. 1970, art. I, § 8; Ill. Rev. Stat. 1985, ch. 38, ¶ 113-3) is
absolute and unqualified, the right to choose counsel is limited, although fundamental. People v.
Spurlark, 67 Ill. App. 3d 186, 196 (1978); People v. Tucker, 382 Ill. App. 3d 916, 920 (2008). A
defendant who abuses the sixth amendment right to counsel in an attempt to delay trial and thwart
the effective administration of justice may forfeit her right to counsel of choice. Tucker, 382 Ill.
App. 3d at 920 (citing People v. Howard, 376 Ill. App. 3d 322, 335, (2007)). “It is within the
discretion of the trial court to determine when the defendant’s right to select counsel unreasonably
interferes with the orderly process of judicial administration.” People v. Burrell, 228 Ill. App. 3d
133, 142 (1992) (citing Spurlark, 67 Ill. App. 3d at 197). A determination of the issue turns on the
particular facts of each case. People v. Little, 207 Ill. App. 3d 720, 724 (1990).
¶ 54 “In balancing the judicial interest of trying the case with due diligence and the defendant’s
constitutional right to counsel of choice, the court must inquire into the actual request to determine
whether it is being used merely as a delaying tactic.” Burrell, 228 Ill. App. 3d at 142. The factors
to consider are whether defendant articulates an acceptable reason for desiring new counsel;
whether the defendant has continuously been in custody; whether she has informed the trial court
of her efforts to obtain counsel; whether she has cooperated with current counsel; and the length
of time current counsel has represented the defendant. Id.; see also People v. Childress, 276 Ill.
App. 3d 402, 411 (1995). It is well established that a trial court does not abuse its discretion by
denying a motion to continue for substitution of counsel in “the absence of ready and willing
substitute counsel.” People v. Segoviano, 189 Ill. 2d 228, 245 (2000).
24
¶ 55 Here, the balance of the pertinent factors does not support the trial court’s refusal to allow
defendant to exercise her right to counsel of choice. Although defendant’s case had been pending
since January 2016, no evidence demonstrates that defendant sought to delay or thwart justice by
filing a motion to substitute counsel. The record demonstrates that defendant had been out of
custody since February 2016—a factor that weighed against her. However, defendant never
previously sought to change attorneys or failed to cooperate with Attorney Drew during his almost
three-year representation of her. Moreover, defendant did not fail to identify new counsel at the
time that she filed her motion to substitute counsel. Instead, the record shows that Attorney Verity
entered his appearance on October 3, 2018, at the same time defendant informed the court of her
desire to obtain new counsel, and Attorney Verity appeared in court on October 3, 2018, ready to
represent defendant.
¶ 56 Moreover, at the October 4, 2018, hearing, Attorney Verity informed the trial court that he
was ready, willing, and able to represent defendant. He, however, requested time to speak to
witnesses and read through the record in order to properly and in “good conscience” defend a Class
X felony at trial. Despite this, the court made no inquiry into how long Attorney Verity required
to prepare for trial, provided a continuance was necessary to properly represent defendant. See
People v. Jenkins, 2020 IL App (1st) 172422, ¶ 16 (“The trial court made no inquiry into how long
[counsel] required to prepare for trial ***.”). Instead, Attorney Drew, not Attorney Verity, stated
on the record that he would enter a motion for a “brief continuance of a month or a month and a
half” if Attorney Verity entered representation but was unable to represent defendant at trial on
October 9, 2018.
¶ 57 We also note that both Attorneys Drew and Verity stated multiple times on the record that
they did not believe defendant’s request to substitute counsel served to delay or thwart justice.
25
Rather, following a final pretrial meeting between Attorney Drew and defendant, defendant lost
confidence in Attorney Drew’s trial strategy. Consistent with this, defendant stated the following
before the court: “After I met with [Attorney Drew], he told me his decision, and I didn’t feel
confident, so I seeked [sic] a different counselor. I liked what he had to offer.” For attorney-client
privilege reasons, neither Attorney Drew nor defendant provided further explanation. In addition,
the trial court did not inquire further or ask defendant to explain the efforts she took to retain
Attorney Verity. Moreover, Attorney Drew confirmed multiple times on the record that defendant
had been cooperative throughout the case, stating: “[T]hat’s why I feel strongly that I don’t believe
this is being done to subvert justice because she has been cooperative with me throughout.” Despite
this, the court denied defendant’s motion, stating its dissatisfaction with defendant’s “articulation
of the reason for changing counsel.”
¶ 58 Lastly, we note that the record confirms that the trial court continued defendant’s jury trial
multiple times. A review of the record and the parties’ arguments at the hearing on defendant’s
motion to substitute attorneys indicates that the trial court originally scheduled defendant’s trial
for January 10, 2017. The court, however, granted a continuance on January 3, 2017, due to the
possibility of defendant entering into a plea agreement with the State. After defendant chose not
to enter into a plea deal, the court set defendant’s trial for June 16, 2017; however, the court granted
a continuance after Attorney Drew raised a bona fide doubt as to defendant’s fitness on June 7,
2017. The court then set defendant’s trial for August 20, 2018; however, the parties, by agreement,
requested a continuance and defendant’s trial was set for October 9, 2018. With these dates in
mind, we are unconvinced by the court’s reasoning that “the need for efficient and effective
administration of justice” outweighed defendant’s constitutional right to her choice of counsel.
26
¶ 59 Based on a detailed review of the factors above, we find the trial court abused its discretion
by denying defendant’s motions to substitute and continue her trial, where the evidence does not
support a finding that defendant’s actions supported delay or thwarted justice. See People v.
Sullivan, 234 Ill. App. 3d 328, 332 (1992) (“The importance of enabling the defendant to exercise
[her] right to be represented by counsel of [her] own choosing is generally deemed to outweigh
the inconvenience to the prosecution, witnesses, court and jury, unless it is shown that the
defendant’s actions were taken for the purpose of delay.”). Accordingly, for the reasons stated
above, especially the court’s failure to inquire into how long Attorney Verity required to prepare
for trial, we find the trial court committed reversible error.
¶ 60 B. Motion to Suppress Statements
¶ 61 We next address defendant’s argument that the trial court erred by denying defendant’s
motion to suppress statements in a video-recorded interrogation, where Emrich’s and Franklin’s
questions amounted to a custodial interrogation in violation of Miranda. Defendant argues no
reasonable, innocent person in her shoes would have felt free to stop answering Emrich’s and
Franklin’s questions during the interrogation. The question before this court is whether a custodial
interrogation, requiring Miranda, took place. We believe one did.
¶ 62 The standard of review applicable to a ruling on a motion to suppress evidence is twofold.
The trial court’s factual findings and credibility determinations are upheld unless they are against
the manifest weight of the evidence. People v. Jones, 215 Ill. 2d 261, 267-68 (2005). After the trial
court’s factual findings are reviewed, the court’s ultimate legal rulings are reviewed de novo. Id.
at 268. A reviewing court remains free to undertake its own assessment of the facts in relation to
the issues presented and may draw its own conclusion when deciding what relief should be granted.
People v. Kveton, 362 Ill. App. 3d 822, 830 (2005). We may consider the testimony presented at
27
trial, as well as the testimony at the suppression hearing, when reviewing the trial court’s ruling
on a motion to suppress. People v. Slater, 228 Ill. 2d 137, 149 (2008). Where a defendant
challenges the admissibility of a confession through a motion to suppress, the State bears the
burden of proving the voluntariness of the confession by a preponderance of the evidence. 725
ILCS 5/114-11(d) (West 2020); People v. Braggs, 209 Ill. 2d 492, 505 (2003).
¶ 63 In Miranda v. Arizona, 384 U.S. 436, 444 (1966), the United States Supreme Court held
that, prior to the start of an interrogation, a person being questioned by law enforcement officers
must first “be warned that [she] has a right to remain silent, that any statement [she] does make
may be used as evidence against [her], and that [she] has a right to the presence of an attorney,
either retained or appointed,” as long as that person has been “taken into custody or otherwise
deprived of [her] freedom of action in any significant way.” The finding of custody is essential, as
the pre-interrogation warnings required by Miranda are intended to assure that any inculpatory
statement made by a defendant is not simply the product of “ ‘the compulsion inherent in custodial
surroundings.’ ” Yarborough v. Alvarado, 541 U.S. 652, 661 (2004) (quoting Miranda, 384 U.S.
at 458).
¶ 64 The determination of whether a defendant is “in custody,” and, therefore, whether the
warnings set forth in Miranda are required, involves “ ‘[t]wo discrete inquiries,’ ” including:
“ ‘first, what were the circumstances surrounding the interrogation; and second, given those
circumstances, would a reasonable person have felt he or she was not at liberty to terminate the
interrogation and leave.’ ” Braggs, 209 Ill. 2d at 505-06 (quoting Thompson v. Keohane, 516 U.S.
99, 112 (1995)). When examining the circumstances of interrogation, our supreme court found a
number of factors relevant in determining whether a defendant made a statement in a custodial
setting, including: “(1) the location, time, length, mood, and mode of questioning; (2) the number
28
of police officers present during the interrogation; (3) the presence or absence of family and friends
of the individual; (4) any indicia of a formal arrest procedure, such as the show of weapons or
force, physical restraint, booking or fingerprinting; (5) the manner by which the individual arrived
at the place of questioning; and (6) the age, intelligence, and mental makeup of the accused.”
Slater, 228 Ill. 2d at 150 (citing Braggs, 209 Ill. 2d at 506; People v. Melock, 149 Ill. 2d 423, 440
(1992)). “After examining and weighing these various factors, we must then make an objective
determination as to whether, under the facts presented, ‘a reasonable person, innocent of any
crime’ would have believed that *** she could terminate the encounter and was free to leave.” Id.(citing Braggs, 209 Ill. 2d at 506; People v. Fair, 159 Ill. 2d 51, 66-67 (1994)).
¶ 65 After considering the relevant factors and the circumstances of this case, we find that
defendant was subjected to a custodial interrogation, requiring Miranda, when defendant
confessed to starting the fire at the Drury Inn on December 2, 2015. As stated, one factor to
consider in making a custody determination is the manner by which the individual arrived at the
place of questioning. It is undisputed that defendant and Jeremy drove to the Mt. Vernon Fire
Department. Jeremy then waited to take defendant home following the interrogation. We recognize
that defendant’s voluntary arrival at the fire department by means of her own transportation is
distinguishable from a situation in which a defendant is transported to and from the place of the
interrogation by law enforcement officers. See Braggs, 209 Ill. 2d at 511-14 (court determined
defendant “in custody” for Miranda purposes where officers transported her to and from
interrogation). As such, this factor does not weigh in favor of a finding of a custodial interrogation.
¶ 66 Next, we look to the location, time, length, mood, and mode of questioning. We first note
that the trial court did not reference the time and length of the interrogation in its reasoning. In
finding that defendant was not subjected to a custodial interrogation, the trial court reasoned that
29
the interrogation took place in a large room, with an open door, and that neither officer blocked
defendant from the door. The recorded video demonstrates an open door but also a closed door, a
fact that the court failed to state. In fact, the door closest to defendant’s seat was closed. In addition,
the video does not demonstrate a large room but a room that required defendant to sit relatively
close to Emrich and Franklin. As such, we find the court’s factual finding against the manifest
weight of the evidence.
¶ 67 As to the mood and mode of questioning, the recorded video reveals that Emrich initially
handed defendant a bottle of water and informed her that he planned to conduct an “information
gathering” interview. Defendant also testified consistently with this statement. As the recorded
video progressed, however, both Emrich and Franklin pronounced their suspicions to defendant
with respect to defendant’s culpability. As a result, the video reveals that defendant became more
tense and changed her body language, as the trial court correctly noted. The video shows that
Emrich stated at least 10 times that he did not believe defendant’s version of events and accused
her of lying and withholding the truth. Similarly, Franklin interjected halfway through the
interview, informing defendant that he was trained to listen to people talk. Franklin then proceeded
to state to defendant at least two times that she was not telling the truth. Franklin also claimed that
he and Emrich knew that defendant “intentionally” started the fire in room 603. The trial court
made no mention of these facts when it denied defendant’s motion to suppress. Instead, the court
determined that Franklin did not seem to pay attention “during almost all the time” that Emrich
questioned defendant. Thus, according to the court, Franklin did not employ a “sta[re] down
tactic.”
¶ 68 Moreover, the trial court determined that Emrich and Franklin did not coerce defendant “in
any way.” Rather, Emrich and Franklin were “low-key compared to most police interviews [the
30
court had] watched over the years and took a kind tone.” Although we agree with the court that
neither Emrich nor Franklin were unkind or threatened defendant, defendant found herself in a
room in the presence of two larger men, including Franklin, a police officer, who defendant never
agreed to meet with and failed to introduce himself to defendant at the outset of the interrogation.
Importantly, the court failed to make a factual finding that the officers verbally conveyed their
belief to defendant that she was guilty and how this knowledge by defendant would affect a
reasonable person in defendant’s position with respect to her perception that she was free to leave.
See Stansbury v. California, 511 U.S. 318, 325 (1994) (The U.S. Supreme Court reasoned that if
an officer’s beliefs of a person’s guilt “are conveyed, by word or deed, to the individual being
questioned,” such beliefs “may bear upon the custody issue.” The Court further stated that such
disclosed beliefs “are relevant only to the extent they would affect how a reasonable person in the
position of the individual being questioned would gauge the breadth of his or her ‘freedom of
action.’ ”). In our view, the mood and mode of questioning employed by Emrich and Franklin
weighs in favor of a finding of a custodial interrogation.
¶ 69 Next, we look at the number of police officers present and the presence or absence of family
and friends of the individual. We note that the trial court did not resolve the inconsistency between
the testimony of Emrich and defendant at the hearing on defendant’s suppression motion. For
instance, Emrich testified that he and Franklin escorted defendant upstairs to the interrogation
room after defendant and Jeremy arrived at the fire department. Defendant, however, testified that
she encountered Franklin, a police officer wearing a badge with his gun holstered, when she first
walked into the room. According to defendant, she saw Franklin for the first time “sitting out
behind his desk *** with his legs propped up on the desk.” Regardless, neither Emrich nor
defendant testified that defendant knew Franklin would be present when she agreed to speak with
31
Emrich at the fire department. Defendant, instead, agreed to speak with Emrich in the presence of
her husband. Importantly, defendant testified at the suppression hearing that she specifically asked
Emrich on the phone—at the time she agreed to meet with Emrich—to have her husband present
during the interview, stating: “I can’t talk—I don’t understand a lot of things and he helps me.”
Despite this, Emrich offered Jeremy a seat downstairs, indicating that Jeremy was not welcome in
the interview. As such, the absence of defendant’s husband and the presence of Franklin during
the interview weigh in favor of a determination that a custodial interrogation took place.
¶ 70 We also note that there were no indicia of formal arrest procedures during defendant’s
questioning at the fire department. The record is devoid of any use of a show of force, physical
restraint, booking, or fingerprinting. Despite this, throughout defendant’s time at the fire
department, Emrich wore a uniform, and Franklin carried a holstered weapon. Moreover,
approximately 25 minutes into the interview, Franklin interjected and stated that he heard “major
inconsistencies” with defendant’s story. Shortly after this, defendant confirmed, by nodding her
head in acknowledgement, that she was scared to hear that Franklin was a police officer when the
interview started. We also note that both officers told defendant, on multiple occasions, that she
would go home that day. They, however, did not advise her that she was free to leave during the
interview, and defendant did not request to leave. In our view, this factor is neutral in determining
whether a custodial interrogation took place.
¶ 71 Lastly, this court also looks to the age, intelligence, and mental makeup of the accused. In
reviewing the trial court’s reasoning to deny defendant’s motion to suppress, the court believed
that defendant’s lack of a high school education—similar to the judge’s father’s eighth grade
education—did not have “any bearing on a person’s intelligence or ability to understand things.”
For support, the court stated that defendant, a first responder, had “the intellectual ability to assess
32
medical situations, and she said take blood pressure or administer CPR.” We cannot agree. The
record reflects that defendant, a woman in her late 30s, took special education classes before she
dropped out of high school. Defendant failed the GED test once and never retook the exam.
Defendant had no criminal history and no known contact with the criminal justice system.
Defendant underwent a fitness evaluation prior to trial, and Dr. Stanislaus concluded that defendant
had borderline intellectual functioning. In her report, Dr. Stanislaus’s indicated that defendant’s
“younger sister helps her with things if she cannot understand something.” Moreover, defendant
testified that she asked Emrich to have Jeremy with her during the interview, stating: “I can’t
talk—I don’t understand a lot of things and he helps me.” Furthermore, defendant testified that
“once [people] start talking to me, I get confused and say whatever they want to hear to get them
off my back or whatever.” Based on the above reasoning, in our view, defendant’s intelligence and
mental makeup weigh in favor of a finding of custodial interrogation.
¶ 72 Our review of the above factors leads to the conclusion that, based upon the circumstances
presented, a reasonable innocent person in defendant’s position would not have felt free to
terminate her encounter and leave the fire department. Accordingly, we conclude that defendant
was subjected to a custodial interrogation, requiring Miranda warnings. Because it is undisputed
that no such warnings were given, the circuit court erred by denying defendant’s motion to
suppress.
¶ 73 Moreover, the improper admission of a defendant’s statements to police is subject to a
harmless-error analysis. People v. Mitchell, 152 Ill. 2d 274, 328 (1992). Under a harmless-error
analysis, the critical question is whether it appears beyond a reasonable doubt that the error did not
contribute to the verdict. People v. Patterson, 217 Ill. 2d 407, 428 (2005). There are three different
approaches to answering this critical question: (1) analyzing the other evidence from the case to
33
determine if that evidence overwhelmingly supported the defendant’s conviction, (2) focusing on
whether the error contributed to the verdict, and (3) determining whether the properly admitted
evidence is merely cumulative to the other evidence properly admitted at trial. Id.¶ 74 With these principles in mind, we cannot conclude beyond a reasonable doubt that the jury
would have convicted defendant without her confession. A jury might have doubted defendant’s
testimony concerning her key card usage that showed atypical housekeeping behavior, as the State
points out. However, without defendant’s confession, we are unconvinced that overwhelming
evidence existed to convict defendant beyond a reasonable doubt of aggravated arson. We find
support in the fact that Emrich testified at defendant’s jury trial that he relied “entirely upon
[defendant’s] confession” in deciding that she started the fire. As such, defendant’s confession
contributed to her conviction. Moreover, the record demonstrates that the custodial interrogation
was not cumulative to other evidence properly admitted at trial. Based on the above, we simply
cannot conclude that the admission into evidence of defendant’s confession made no difference to
the result.
¶ 75 Due to our disposition of the above issues, we need not address defendant’s remaining
contention regarding her sentence on appeal. We note that we considered all of the evidence
presented at trial with regard to defendant’s conviction that we are reversing and find it sufficient
to support that conviction; accordingly, double jeopardy does not prevent the retrial of the
defendant. See, e.g., People v. Jamison, 2014 IL App (5th) 130150, ¶ 18 (if evidence was sufficient
to convict the defendant, principles of double jeopardy do not preclude retrial). We reach this
conclusion because when we consider whether double jeopardy bars a retrial, the relevant question
before us is whether, after viewing the evidence in the light most favorable to the State, any rational
trier of fact could have found the essential elements of the crime or crimes beyond a reasonable
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doubt. See, e.g., People v. Lopez, 229 Ill. 2d. 322, 367 (2008). We set out the evidence against the
defendant in this case in extensive detail above. We conclude that from this evidence, a rational
jury could have found beyond a reasonable doubt the essential elements of aggravated arson.
¶ 76 III. Conclusion
¶ 77 For the reasons stated, defendant’s conviction and sentence are reversed, and this cause is
remanded for a new trial with defendant’s counsel of choice, without defendant’s confession, and
for further proceedings consistent with this decision.
¶ 78 Judgment reversed; cause remanded.
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