People v. Green , 2014 IL App (3d) 120522 ( 2014 )

Illinois Official Reports
Appellate Court
People v. Green, 2014 IL App (3d) 120522
Appellate Court THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption JERAMY J. GREEN, Defendant-Appellant.
District & No. Third District
Docket No. 3-12-0522
Filed August 26, 2014
Modified upon
denial of rehearing October 2, 2014
Held In the modification of the appellate court’s opinion upon the denial of
(Note: This syllabus defendant’s petition for rehearing arguing that the appellate court
constitutes no part of the relied on a factual finding not supported by the record and did not
opinion of the court but properly consider conflicting evidence in reviewing defendant’s
has been prepared by the challenge to the trial court’s entry of a directed finding, the original
Reporter of Decisions opinion was slightly modified, defendant’s conviction was upheld,
for the convenience of and defendant’s arguments were deemed insufficient to overcome the
the reader.) trial court’s findings that defendant’s custodial statements were given
voluntarily and were reliable and that the investigatory stop that led to
defendant’s arrest was a valid Terry stop.
Decision Under Appeal from the Circuit Court of Will County, No. 09-CF-78; the
Review Hon. Sarah Jones, Judge, presiding.
Judgment Affirmed.
Counsel on Michael J. Pelletier and Christofer R. Bendik (argued), both of State
Appeal Appellate Defender’s Office, of Chicago, for appellant.
James Glasgow, State’s Attorney, of Joliet (Judith Z. Kelly (argued),
of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the
People.
Panel JUSTICE McDADE delivered the judgment of the court, with
opinion.
Justices Holdridge and O’Brien concurred in the judgment and
opinion.
OPINION
¶1 Jeramy J. Green (Green), the defendant, was charged with first degree murder. He filed
several pretrial motions including a motion to quash arrest and suppress evidence. The trial
court granted the State’s motion for a directed finding at the close of Green’s motion hearing. It
found the investigatory stop leading to Green’s arrest proper and that the defense failed to shift
the burden to the State. It also found the unrecorded portion of Green’s custodial interview
voluntary and reliable rebutting the inadmissibility provision of section 103-2.1 of the Illinois
Code of Criminal Procedure of 1963 (the Code) (725 ILCS 5/103-2.1 (West 2008)). Section
103-3(a) of the Code regarding family members was found to be inapplicable. 725 ILCS
5/103-3(a) (West 2008). Green’s motion to reconsider was denied.
¶2 The case proceeded to a bench trial. Green was convicted of first degree murder and
sentenced to 36 years’ imprisonment. He appealed the trial court’s ruling on his pretrial motion
to quash his arrest and suppress evidence. In a decision issued August 26, 2014, this court
affirmed the trial court’s denial of his pretrial motion and Green’s conviction.
¶3 Green has filed a petition for rehearing raising two issues with this court’s decision: (1) the
court relied on a factual finding not supported by the record and (2) this court did not properly
factor in purportedly conflicting evidence in reviewing defendant’s challenge to the trial
court’s entry of a directed verdict. The petition is denied with slight modification of the
opinion. We have removed the word “recent” as a description of the threats described to Reid
by Brittany’s parents. A fuller description of the testimony of Detectives Avila, Diehl and
Schumacher and a more extensive discussion of the standard for granting a directed verdict
have been included. The ruling of the trial court remains affirmed.
¶4 FACTS
¶5 The following account of events is drawn from the testimony at Green’s bench trial.
¶6 Around 11:30 p.m. on January 7, 2009, Lieutenant Marc Reid (Reid) responded to a
dispatch call in Joliet and observed the dead body of Brittany Brooks (Brittany). Through a
police database, Reid learned that she had been involved in prior domestic incidents with
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Green. Reid also spoke with Brittany’s parents and learned of threatening text messages
between Brittany and Green.1 Reid discovered four addresses associated with Green and that a
Pontiac Grand Am was registered to him.
¶7 After providing them with the information he had regarding the investigation, Reid sent
several detectives to each of the four addresses. Reid noted there was no probable cause to
arrest Green and no specific information existed at the time directly linking Green to Brittany’s
death. He assigned Detectives Patrick Schumacher (Schumacher), Moises Avila (Avila), and
Stephen Diehl (Diehl) to investigate the house at 1018 Summit, one of the four addresses.
¶8 Upon arriving at the house, the detectives did not see Green’s Pontiac Grand Am. Avila
testified they drove by the front and then the rear of the house checking for vehicles parked in
either area that might have occupants sitting with the engine running and lights off either
waiting to leave or having just arrived; they found none. He testified that they returned to the
front of the house and observed a Honda minivan (minivan) and a Chevy Monte Carlo (car)
driving away. He stated that the two vehicles had not been in the front when they originally
arrived. He had no knowledge whether the vehicles or persons in them were associated with
the house.
¶9 Diehl testified that the squad car drove by the front and then rear of the house, he saw the
minivan and car parked in the back of the house and also saw them leaving from the back of the
house within minutes of the detectives’ arrival. He did not see anyone get into the cars but
speculated its occupants came from the house since the cars were parked on the property.
¶ 10 Schumacher testified similarly to Diehl, stating that after checking the area around the
house for Green’s car, he saw two vehicles leaving from the rear of the house. He stated that he
could not recall who saw the vehicles first or the details of their discussion at that time about
them. He also had no knowledge of who owned the vehicles or who was in them. He radioed
dispatch for assistance, providing the description of the vehicles and the direction in which
they were heading so they could be stopped and checked for occupants. No traffic violations
had been committed.
¶ 11 Officer Daniel Rupp heard the dispatched stop request. He intercepted and stopped the
minivan. Rupp exited his car, drew his weapon for general safety purposes, and ordered the
female driver, Green’s sister, out of the minivan. When she complied, he handcuffed her and
placed her in his squad car. She testified that she was driving Green, who was a passenger in
the minivan, to the police station.
¶ 12 Sergeant Matthew Breen, having also heard the stop request, exited the police station and
drove his car to where Rupp had stopped the minivan. Breen went to the passenger side of the
minivan and spoke with a man who identified himself as Green. Although Breen was
1
While there is, in fact, evidence in the record that at least one of the generic threats about which
Reid was informed by Brittany’s parents had been recent, there is nothing in the record to show that he
was actually told that night about the timing or that he factored it into his decision to seek out Green.
However, contrary to the defendant’s contention, the timing of the threats was not the basis for our
holding.
Not knowing whether any of the threatening communications had been recent does not undermine
the impact of the officer’s knowledge that Brittany and defendant had a history of threatening texts,
emails and voicemail messages and a history of domestic violence. Such information in any homicide
investigation would make a person “a person of interest.”
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previously unaware Green was in the minivan, he recognized him as a person of interest
relative to Brittany. Breen saw blood on Green’s person, ordered him out of the minivan, and
handcuffed him for officer safety purposes.
¶ 13 Schumacher, Diehl, and Avila arrived at the stopped minivan. Breen walked Green to
Diehl, who noted a large amount of blood on Green’s sweatshirt and took it into evidence.
Green told Diehl that he had been on his way to the police station to make a statement when the
minivan was stopped. Green was then walked to the police station.
¶ 14 At the police station, Reid ordered Diehl to start the recording equipment for the
interrogation room, which Diehl failed to do properly.
¶ 15 At 3:23 a.m., Diehl and Avila presented and read Green a waiver of rights form, which
Green signed. He agreed to speak with the detectives and did not ask for an attorney. Green
was offered food, water, and the opportunity to use the restroom. Diehl noted that Green was in
his mid-twenties, had a small cut on his hand but no other injuries, and exhibited no mental
deficiencies.
¶ 16 At 4:44 a.m., Detective John Ross (Ross) was assigned to watch the interrogation on the
recording computer and discovered that the equipment had not been recording. He started it
and notified Reid of the error. Diehl and Avila, who were interrogating Green at the time, were
not informed that the first 1 hour and 23 minutes of the custodial interview had not been
recorded. They were told of the error when they later left the interrogation room. Diehl was
reprimanded for not setting the equipment up properly.
¶ 17 Diehl and Avila both testified that People’s Exhibit No. 12, a video recording of Green’s
interrogation beginning at 4:44 a.m., accurately reflected their entire interview of Green.
During the taped portion of the custodial interview, the detectives repeated the first version of
events leading to Brittany’s final moments that Green had given them during the unrecorded
portion. Green never denied providing that account to them and his demeanor remained calm.
¶ 18 The detectives testified that they used profanity and raised their voices in an effort to get
Green to display some emotion and admit his involvement in Brittany’s death. They told Green
several times that the crime scene did not match his story. The detectives admitted they were
not trained to use profanity.
¶ 19 Later during the interrogation, Reid provided crime scene photos of Brittany’s body which
the detectives showed to Green. One of the photos placed directly in front of Green showed
only one set of footprints in the snow, countering Green’s first exculpatory statement. The
other photos of Brittany’s body at the crime scene were placed sporadically on the table. After
Green repeatedly failed to explain the discrepancies between his story and the crime scene
photos, Diehl picked up a photo of Brittany, held it up to Green, and demanded that Green look
at Brittany’s dead body and explain how she got there.
¶ 20 Diehl later left the room and was replaced by Ross. While Avila and Ross were in the
interrogation room, Green gave a second version of events leading to Brittany’s death, after
which both detectives left the room. Ross reentered a few minutes later with Detective
Christopher Schott. Schott told Green he had been listening to the interview and that things did
not add up. Schott stated that the police had spoken with his cousin, his sister, and his sister’s
husband and what they told the detectives did not match Green’s story. Green stated several
times that he had told his family inconsistent and incomplete stories because of
embarrassment. The detectives told Green that his family would understand embarrassment
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but not lying and that his family wanted the truth. Ross eventually left the room and Detective
Shawn Filipiak took his place.
¶ 21 Green accused Filipiak of spitting in his face. Pushing Green, Filipiak denied spitting on
him. Schott intervened. Filipiak offered to leave the room for Green’s comfort and then left.
Schott was alone with Green. Green was given water, food and allowed to use the restroom.
¶ 22 Schott continued the interrogation and exhorted Green to tell him what happened. The
following are excerpts of the discussion.
“SCHOTT: I said if you don’t talk to me about it, I can’t–I can’t put this–I can’t–I
can’t explain this, all right? And right now, your family wants to know. I mean, they’re
worried about you. We’re worried about what’s going on. You’ve got to explain it.
You’ve already told me that it got out of hand, but you’ve got to explain to me. You’ve
got to let me know what’s going on. So what happened? I’m not–I don’t want to sit here
and–I’m not (inaudible). I’m not going to sit here and put words in your mouth. I don’t
want to sit here and make stuff up. I don’t want to make a scenario up. I want you to–
GREEN: My family still here?
SCHOTT: Huh?
GREEN: My family still here?
SCHOTT: They’re around, yeah. Why? Do you want to see them?
***
GREEN: Can I see my family?
SCHOTT: Going to answer my questions?
GREEN: If I answer these questions, can I see my family?
SCHOTT: I’ll talk to my boss. You answer the questions and I’ll talk to my boss.
GREEN: So if I answer these questions, I’m going to be able to see my family?
SCHOTT: Then I’ll talk to my boss.
GREEN: How?
SCHOTT: I said that I’ll talk to my boss, but you have to answer the questions and
you have to answer them truthfully. You have to give me something to go with. I can’t
go in there, ask for a favor, if I got nothing to offer. Do you understand? See you gotta
tell me the truth so I know what’s going on, okay? Did you stab her? Did you?
GREEN: No.”
Green continued to insist a third person was there, but acknowledged that he was the one who
hurt the deceased. In response to several more denials of involvement, Schott told Green:
“How am I supposed to let you see your family if you don’t talk to me about it; if you
don’t give me something, which is the truth? You see what I’m saying? You’re gonna
send me out there with nothing. What am I supposed to do? You understand? See you
gotta tell me the truth. You said you unintentionally hurt her, right? Is that what you’re
saying? I can’t hear you. Is that what you’re saying?”
Green then admitted stabbing Brittany after she introduced a knife into their argument. Schott
left the interrogation room to get Green water and ask his supervisor about allowing Green to
see his family. Schott returned to the room to ask more questions, and Green told him where he
had dropped the knife after leaving Brittany’s car.
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¶ 23 After Green used the restroom, Schott asked him to sign a consent form for leave to search
his house, but Green refused.
¶ 24 ANALYSIS
¶ 25 Denial of Motion to Quash and Suppress
¶ 26 Green first argues that because the State failed to provide evidence that a reasonable and
articulable suspicion existed for the minivan to be seized, the trial court erred in granting the
State’s motion for directed finding and denying his motion to quash his arrest and suppress
evidence. He contends that the case should be remanded for a new trial excluding any evidence
gathered as a result of the seizure. We disagree and affirm the denial of Green’s motion.
¶ 27 A ruling on a motion to quash an arrest and suppress evidence in the State’s favor at the
close of defendant’s evidence presents mixed questions of law and fact. People v. Nitz, 371 Ill.
App. 3d 747, 750 (2007). The trial court’s findings of historical fact will be upheld on review
unless they are against the manifest weight of the evidence, but “a reviewing court remains free
to undertake its own assessment of the facts in relation to the issues presented and may draw its
own conclusions when deciding what relief should be granted.” People v. Lee, 214 Ill. 2d 476,
484 (2005). The ultimate question of whether to quash and suppress is reviewed de novo. Id.
¶ 28 A defendant moving to quash an arrest and suppress evidence must make a prima facie
case that the police lacked probable cause. People v. Brexton, 343 Ill. App. 3d 322, 326 (2003).
However, as here, when the denial of a motion to quash arrest and suppress evidence is based
on the grant of a motion for directed finding, “the trial court does not view the evidence [in the
light] most favorabl[e] to the [nonmovant] but, rather, (1) determines whether the [nonmovant]
has made out a prima facie case, then (2) weighs the evidence, including that which favors the
[movant].” Zankle v. Queen Anne Landscaping, 311 Ill. App. 3d 308, 311 (2000); see also 735
ILCS 5/2-1110 (West 2008). The trial court’s decision will only be reversed if it is against the
manifest weight of the evidence. Zankle, 311 Ill. App. 3d at 311. Green argues that the initial
investigatory stop that ultimately generated the probable cause for his arrest was illegal.
¶ 29 Terry v. Ohio, 392 U.S. 1 (1968), sets forth the principles we use to analyze the
reasonableness of investigatory stops. Under Terry, a police officer may conduct a brief,
investigatory stop of a person where the officer reasonably believes that the person has
committed or is about to commit a crime. Terry, 392 U.S. at 22; People v. Gherna, 203 Ill. 2d
165, 177 (2003). Determining whether the stop was an unreasonable seizure is a two-step
process. People v. Sparks, 315 Ill. App. 3d 786, 792 (2000). First, we decide whether the stop
was justified at its inception; next, we determine whether the scope of the stop was
proportional to the circumstances that justified the interference in the first place. Terry, 392
U.S. at 19-20; Sparks, 315 Ill. App. 3d at 792.
¶ 30 Justification of an investigatory stop at its inception is reviewed objectively. People v.
Thomas, 198 Ill. 2d 103, 109 (2001). “[T]he police officer must be able to point to specific and
articulable facts which, taken together with rational inferences from those facts, reasonably
warrant that intrusion.” Terry, 392 U.S. at 21. The officer’s suspicion must amount to more
than an inarticulate hunch (Terry, 392 U.S. at 22; People v. Close, 238 Ill. 2d 497, 505, 511
(2010)), but need not rise to the level of suspicion required for probable cause (United States v.
Sokolow, 490 U.S. 1, 7 (1989); Close, 238 Ill. 2d at 505, 511). The collective knowledge of all
of the officers involved in the apprehension of a defendant, even if such knowledge is not told
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to the arresting officer, may be considered by the trial court in determining whether a
reasonable suspicion existed. People v. Hoekstra, 371 Ill. App. 3d 720, 723 (2007).
¶ 31 Citing People v. Ertl, 292 Ill. App. 3d 863 (1997), Green argues that the officers’ collective
knowledge did not amount to suspicion that is more than an inarticulate hunch. In Ertl, the
court held that the defendant’s estranged wife’s police call did not justify a Terry stop of the
defendant. Ertl, 292 Ill. App. 3d at 873. In that case, the wife telephoned the police and advised
them that she and defendant had been involved in an altercation at her house. Id. The Ertl court
found that the defendant’s stop was not a valid Terry stop because (1) the wife’s information
“was based on limited and somewhat speculative observations and consisted largely of [her]
subjective fears”; (2) the wife did not witness the defendant commit any criminal act and could
not predict that he was going to do so; (3) the police only corroborated “innocent” details of the
wife’s tip, including the description of the defendant’s vehicle and its location; (4) the officers
did not observe defendant engage in any unlawful or threatening behavior before they stopped
him; and (5) although “there were several officers” available to go to the wife’s location and
verify the information she provided, they did not do so. Id. at 873-74.
¶ 32 The case at hand is distinguishable from Ertl. Unlike Ertl, Green was a person of interest in
the homicide of Brittany. After interviewing Brittany’s family members and checking the
police database, the police were aware that Green had sent Brittany threatening text messages
and there was a history of domestic incidents between them. Thus, Green had already been
implicated in earlier criminal domestic incidents and in threatening further such incidents.
Reid dispatched several detectives to find and stop Green because he was a person they
“wanted to speak to.”2 So a Terry stop of Green at that time would have been a valid stop.
¶ 33 This court also concludes that the stop of the van in which Green was a passenger was a
valid stop because the facts known to the police created a reasonable, articulable suspicion
permitting a valid stop. Here the police learned of four addresses associated with Green,
including the Summit Street house, and knew the kind of vehicle registered to him. Avila
testified that their purpose for driving around the address was to look for Green’s registered
vehicle as well as any other cars that had occupants sitting with the engine running and lights
off waiting to leave or having just arrived. Though they did not see Green’s Pontiac Grand Am
at the house, the three detectives saw the minivan and the car depart from the vicinity of that
house at about 3 a.m.–only minutes after their arrival. A reasonable officer could form an
articulable suspicion that Green or someone assisting him to evade responsibility for harming
Brittany was present in one of those vehicles leaving that specific location. Because they were
leaving the area of one of the targeted addresses at 3 in the morning, the two vehicles fit what
the officers were looking for in their effort to stop and speak with Green. Although the minivan
was not observed engaging in any unlawful or threatening acts, the police had more than a
mere hunch to justify its seizure.
¶ 34 The scope of the stop was also proportional to the circumstances. Green, citing People v.
Mendez, 371 Ill. App. 3d 773 (2007), argues that the address investigated and where the
2
Green’s motion for rehearing references only the question as phrased by his counsel to Reid during
his testimony at the motion to quash arrest and suppress evidence which concluded that Green was a
person Reid felt they “should” talk to. However, in review of the entire testimony, Reid specifically
states that he put out a request that Green was someone they “wanted to speak to” and affirmed the
State’s conclusion that Green should to be stopped in order to be spoken to.
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minivan originated were too remote in time and proximity to the crime to justify the later Terry
stop. Green requests the court to take judicial notice of the exact distance of the house from the
crime scene and that the seizure occurred three hours after the crime. Yet, “[t]he size of the area
in which the offender might be found, as indicated by such facts as the elapsed time since the
crime occurred,” is one of six factors the Mendez court indicated could be considered as
grounds for stopping a suspect soon after an offense is committed. Mendez, 371 Ill. App. 3d at
776 (citing People v. Brown, 88 Ill. App. 3d 514, 519 (1980)). The “[k]nown or probable
direction of the offender’s flight” is also a factor for consideration. Id. at 776. In this case, the
house the vehicles departed from is one of the four known addresses associated with Green.
The detectives were assigned to those addresses because they were probable destinations for
Green. According to at least two of the officers, the two vehicles were at the Summit Street
house and they left there around 3 a.m.
¶ 35 Additionally, our case is distinguishable from Reid v. Georgia, 448 U.S. 438, 439 (1980),
the origin of the quote the defendant cites to in People v. Croft, 346 Ill. App. 3d 669, 675
(2004). In Reid, other than the fact that upon disembarking from a known location, the
airplane, the defendant’s conduct, “[p]reced[ing] another person and occasionally look[ing]
backward at him,” is all the police could assert as grounds for the stop. Reid, 448 U.S. at 441.
The Court stated that the conduct on which the officers relied “[d]escribe[d] a very large
category of presumably innocent travelers, who would be subject to virtually random
seizures.” Id. Thus, the stop was not a valid Terry stop.
¶ 36 In this case, however, though noting they did not actually know who was in the minivan
when they initiated the stop, there was little or no likelihood that a large category of innocent
persons would have been affected by a stop in these circumstances. In addition to the
incriminating information gathered about Green prior to the detectives’ dispatch, the minivan
left the house of one of Green’s known addresses. Two of the three assigned detectives
testified that the minivan was one of the two vehicles they observed leaving from the rear of
the house. One of those two detectives testified that he had seen both vehicles parked in the
parking lot/driveway at the rear of the house. Although the third detective, who was driving,
did not see the vehicles at the rear of the house, he, like the other two, did see the vehicle
driving from the front of the house where there had not been anything parked earlier. The
detectives described the vehicles and the direction each was traveling in the dispatch. The
category of presumably innocent persons potentially affected in the particular circumstance of
this case is significantly limited.
¶ 37 Thus, the minivan’s seizure was based on a reasonable and articulable suspicion. Since
Green does not contest the officer’s probable cause to make the arrest after the stop, Green’s
arrest was valid. Evidence found subsequent to that valid stop and arrest was lawfully
obtained.
¶ 38 Alleged Violation of Due Process
¶ 39 Finally, we briefly address Green’s constitutional claim that his due process rights were
violated when the trial court failed to include Avila’s purportedly conflicting testimony about
the location of the vehicles. The trial court’s factual findings in its order included the testimony
of Schumacher and Diehl that the seized minivan had been parked in the rear of the house and
left from there. The court did not include, or presumably consider, Avila’s testimony that they
observed the vehicles leaving from the front area of the Summit Street house.
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¶ 40 Green argues that this constitutes a major discrepancy that the trial court failed to clarify.
He cites People v. Mitchell, 152 Ill. 2d 274 (1992), and People v. Bowie, 36 Ill. App. 3d
177 (1976), as controlling authority. However, these cases are distinguishable.
¶ 41 In Bowie, the court held that a defendant is denied due process “[w]here a record
affirmatively indicates *** that the trial judge did not remember or consider the crux of the
defense when entering judgment.” Bowie, 36 Ill. App. 3d at 180. In Mitchell, the supreme court
reversed the judgment of the trial court because, as in Bowie, the trial court did not remember
the crux of the defense when entering judgment. Mitchell, 152 Ill. 2d at 321.
¶ 42 Here, the record reflects that the trial judge interrupted defense counsel during his closing
argument to indicate that the court’s notes included the deviation in Avila’s testimony, thereby
showing the testimony had not been forgotten. Moreover, it is doubtful whether the differing
testimony of Avila is the crux of Green’s defense. He does not argue or even mention this
claimed discrepancy in his closing argument at the hearing on the motion to quash arrest and
suppress evidence. He notes only Schumacher’s testimony of seeing “a couple of cars leaving
the scene” and suggests no significance to the variance in the departure locations described by
the detectives.
¶ 43 Further, there is no support for Green’s contention that the evidence should be viewed in a
light most favorable to him, forcing greater weight on Avila’s purportedly differing testimony.
As previously stated, on a motion for directed finding, the trial court first determines whether
the nonmovant made a prima facie case, then weighs the evidence. 735 ILCS 5/2-1110
(West 2008); Zankle, 311 Ill. App. 3d at 311. This latter step may result in the negation of
evidence supporting the nonmovant’s prima facie case. Kokinis v. Kotrich, 81 Ill. 2d 151, 155
(1980). The nonmovant’s remaining credible evidence must be sufficient to establish the
nonmovant’s prima facie case or the movant’s motion should be granted. Id. A reviewing court
will only reverse the trial court’s decision if it is against the manifest weight of the evidence.
Here, we do not find that it is.
¶ 44 In our review of the testimony of the officers, it would seem that there is no conflict. Avila
does not say the cars did not leave from the back of the Summit Street house. He only stated
that he saw the cars leave the area of the front of the residence. This does not conflict with
Schumacher’s account of seeing the vehicles coming from the rear of the residence because he
further testified that he was unsure of who saw the vehicles first or their presumed discussion
about them. Additionally, Diehl was the only one to state that he saw the vehicles originally
parked in the back driveway of the Summit Street house and then leave from the rear. When
viewed together, there is no significance–only a piecemealed account of the location of the
vehicles at different times by the officers. The trial court’s findings of credibility were not
against the manifest weight of the evidence.
¶ 45 For these reasons, we find Green’s due process rights were not abridged and the evidence
resulting from the arrest could properly be used at trial.
¶ 46 Admissibility of Unrecorded Custodial Statements
¶ 47 Green argues that the trial court erred in admitting his custodial interview statements at his
bench trial because the State was ineffective in sustaining its burden of proving that the
statements were voluntary and reliable pursuant to section 103-2.1 of the Code (725 ILCS
5/103-2.1 (West 2008)). He asserts that cumulatively (1) acquiescence to his request to see his
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family members conditioned upon him making an inculpatory statement, (2) his subjection to
repeated profanity and crime scene photos of Brittany’s body, and (3) a custodial interview
lasting five straight hours with essentially no breaks resulted in two involuntary and unreliable
exculpatory statements and a final inculpatory statement. The State argues it showed by a
preponderance of the evidence voluntariness and reliability in the custodial interview
statements based on the totality of the circumstances exception provided under section
103-2.1(f) of the Code (725 ILCS 5/103-2.1(f) (West 2008)). We find the State’s argument
persuasive and affirm the denial of Green’s motion.
¶ 48 When reviewing a denial of a motion to suppress, great deference is given to the trial
court’s findings of fact and due weight is given to inferences reasonably drawn from those
facts. Ornelas v. United States, 517 U.S. 690, 699 (1996). We review only for clear error. Id. A
court’s factual findings are reversed only if they are against the manifest weight of the
evidence; however, the question of whether the confession was voluntary is reviewed de novo.
In re G.O., 191 Ill. 2d 37, 50 (2000). Thus our determination on that issue is made
independently and without reference to the trial court’s conclusion.
¶ 49 Green’s petition for de novo review of the entire cause is not appropriate. The trial court
was privy to the live testimony. People v. Valle, 405 Ill. App. 3d 46, 58 (2010) (noting the role
live testimony has in resolving a disputed issue of fact). We defer to its fact finding unless it is
against the manifest weight of the evidence.
¶ 50 Section 103-2.1 of the Code requires that statements made during a custodial interview be
presumed inadmissible as evidence against the accused in any criminal proceeding brought
under section 9-1 of the Criminal Code of 1961 or the Criminal Code of 2012 unless the entire
interrogation was electronically recorded and the recording is substantially accurate and not
intentionally altered. 725 ILCS 5/103-2.1(b) (West 2008). This is a rebuttable presumption.
Section 103-2.1(f) of the Code provides an exception to this presumed inadmissibility if the
State shows by a preponderance of the evidence that the statements were voluntarily given and
are reliable, based on the totality of the circumstances. 725 ILCS 5/103-2.1(f) (West 2008).
¶ 51 Both parties agree on the following facts. Green was subjected to a custodial interrogation
for the crime of first degree murder, a criminal proceeding listed under section 9-1 of the
Criminal Code of 2012 (720 ILCS 5/9-1 (West 2012)). Therefore, the Joliet police department
was required to electronically record the entire interrogation of Green. However, nothing from
the start of the interrogation at 3:23 a.m. until 4:44 a.m., a period of 81 minutes, or 1⅓ hours,
was recorded due to Diehl’s failure to activate the recorder. Ross started the device at 4:44 a.m.
and the rest of the interview was recorded. The trial court found that the failure to record was
unintentional. It also held that the initial unrecorded exculpatory statement given by Green was
voluntary and reliable on the grounds of Green’s lack of objection when Diehl and Avila
repeated the original exculpatory statement after the recording was finally started.
¶ 52 While this court might take issue with the form of Green’s “acquiescence”–mere silence
when the officers recounted his alleged, but unrecorded, exculpatory statement during the
recorded portion of the custodial interview–this issue is not before us. A silent response to the
officers’ random recounting of pieces of a story may very well not amount to an “agreement”
regarding what had been discussed prior to the start of the recording. However, Green has
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conceded that the officers’ account was accurate by not only failing to challenge it on appeal
but also affirming it in his brief.3
¶ 53 Nevertheless, Green does challenge the legal finding of the court that the State sustained its
burden of showing that the statements made during the recorded portion of the interrogation
were voluntary and reliable. “[T]he test for voluntariness of a statement is whether the
defendant made the statement freely, voluntarily, and without compulsion or inducement of
any sort, or whether the defendant’s will was overcome at the time he or she confessed.”
People v. Gilliam, 172 Ill. 2d 484, 500 (1996). The assessment is based on the totality of the
circumstances. Id. Gilliam notes several factors to consider in determining voluntariness such
as the defendant’s age, education, intelligence, mental capacity, physical condition at the time
of questioning, the legality and duration of the detention and questioning, whether the
defendant was advised of his constitutional rights, and any physical or mental abuse by police
including the existence of threats or promises. Id. at 500-01.
¶ 54 Green’s first assertion that his final inculpatory statement was conditioned on a promise to
see his family while true is without significance. The trial court found that Green was a
23-year-old adult, with prior criminal justice experience, not lacking in mental capacity or
physical ability, and not exhibiting diminished intelligence. He does not fit the profile of an
adult in need of familial assistance when requested during a custodial interview. 4 He
erroneously relies on section 103-3 of the Code (725 ILCS 5/103-3 (West 2008)) and also cites
a distinguishable case, Haynes v. Washington, 373 U.S. 503 (1963).
¶ 55 Section 103-3 of the Code states that “[p]ersons who are arrested shall have the right to
communicate with an attorney of their choice and a member of their family by making a
reasonable number of telephone calls or in any other reasonable manner.” 725 ILCS 5/103-3
(West 2008). The intention of this section of the Code is to “permit a person held in custody to
notify his family of his whereabouts” to enlist their help for procedural safeguards such as
hiring an attorney. People v. Prim, 53 Ill. 2d 62, 69 (1972); 725 ILCS 5/103-3(a) (West 2008).
“[T]his statute does not give the defendant the right to have a member of his family present
with him during interrogation or even to visit with him while in custody other than at regular
visiting periods.” Prim, 53 Ill. 2d at 69.
¶ 56 Yet, Green argues that his facts are similar to and possibly worse than those of Haynes.
From the time he was arrested until his confession 16 hours later, plus an additional several
days, Haynes’ continuous requests to call an attorney and also to call his wife to inform her of
his location and make legal arrangements were disregarded and used as an unfulfilled
condition for his inculpatory statements. Haynes, 373 U.S. at 511. He was not “advised by
authorities of his right to remain silent, warned that his answers might be used against him, or
told of his rights respecting consultation with an attorney.” Id. The court found that the
officers’ conditioning the ability to speak with an attorney or spouse regarding his whereabouts
3
Green concedes at page 10 of his brief that the account given by the officers is the exculpatory
statement he gave during the unrecorded portion of the custodial interview.
4
People v. Westmorland, 372 Ill. App. 3d 868, 880-90 (2007), discusses the Illinois courts’
transition to the acceptance of a profound need of parental assistance when requested by newly
emancipated offspring as opposed to previous cases holding that an adult’s request for assistance
should only be honored if the request is made by a licensed attorney familiar with the legal system.
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on signing an inculpatory statement was an impermissible method of obtaining a confession.
Id. at 508.
¶ 57 Here Green’s family knew of his whereabouts and why he was being interviewed before
the custodial interview started. His sister was the driver of the minivan and testified that she
and Green were headed to the police station for Green to give a statement about the events
leading to Brittany’s death. He was walked into the station from her minivan. Green was also
told throughout the custodial interview that his story and the statements given by his family
members did not match.
¶ 58 Further, the record does not show that Green’s requests for his family were made for legal
advice. He signed a waiver of rights form acknowledging he was fully informed of and validly
waived his right to counsel. That fact is not contested.
¶ 59 Next, Green argues that the officers’ interrogation method was improper. It is improper to
use fear or threats to elicit confessions. Gilliam, 172 Ill. 2d at 501. However, the profanity
complained of by Green, though impolite, contextually amounted to the officers’
characterization of Green’s account of the events leading to Brittany’s death. The crime scene
photos were brought in to show that Green’s first exculpatory statement did not match the
visual evidence at the scene. Though the photos depicting Brittany at the scene were graphic,
they were not solely used to elicit a response from Green. They were also used to show that the
statement of occurrences given by Green in his first exculpatory statement was not consistent
with the crime scene.
¶ 60 Green’s final argument points to the length of his interrogation. He asserts he was
subjected to six separate officers interrogating him for five hours until he finally gave his
inculpatory statement. He argues that he was only given a four-minute break where there were
no detectives in his interrogation room and he supports this argument by citing Spano v. New
York, 360 U.S. 315 (1959). However, we do not believe the Supreme Court was referencing
Green’s type of conditions when it discussed being overborne by official pressure and fatigue
in Spano. The defendant in Spano was interrogated by 15 law enforcement officials for an
uninterrupted eight hours that “began in early evening, continued into the night, and did not
bear fruition until the not-too-early morning.” Spano, 360 U.S. at 322. The only semblance of a
break involved moving from one interrogation area to another. Id. The defendant was not
allowed to speak with the attorney he had already retained and who had delivered him to the
custody of the police pursuant to a bench warrant. His confession was found to be involuntary
because he was “overborne by official pressure, fatigue and sympathy falsely aroused” by a
ruse created by the police and executed by his friend. Id. at 323.
¶ 61 Green’s custodial interview varies greatly from Spano. There is no bright-line rule in
Illinois regarding the allowable length of an interrogation. Interrogations lasting six or eight
hours do not necessarily render a statement involuntary. People v. Ramey, 152 Ill. 2d 41, 58-59
(1992); People v. Terrell, 132 Ill. 2d 178, 201 (1989). Green was fully informed of his rights
and never requested that the interrogation end or asked for an attorney. He was given several
opportunities, which he notes in the facts of his brief, to break for food and water as well as use
the restroom. Further, Green stated he was on his way to the police station to give a statement
at the time the minivan was seized. Thus, the start of the interrogation was in accord with his
alleged timeline. As the trial court noted, the interview length was extended because Green’s
versions of events continued to change. Therefore, the duration of his custodial interview does
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not render his statements involuntary or unreliable because there was no overbearing official
pressure or fatigue.
¶ 62 Each of Green’s contentions fails on its own merit. Such failings, even when viewed
cumulatively, do not overcome the trial court’s finding that the State met its burden of proving
that Green’s custodial statements were given voluntarily and are reliable.
¶ 63 CONCLUSION
¶ 64 The trial court’s ruling is affirmed. The investigatory stop leading to Green’s arrest was a
valid Terry stop. Additionally, Green’s custodial statements were given voluntarily and are
reliable and could properly be used against him.
¶ 65 Affirmed.
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