People v. Jackson , 374 Ill. App. 3d 93 ( 2007 )

SECOND DIVISION
May 22, 2007
No. 1-06-0074
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
) Circuit Court of
Plaintiff-Appellee, ) Cook County.
)
v. )
)
TREVELLE JACKSON, ) Honorable
) Thomas R. Sumner,
Defendant-Appellant. ) Judge Presiding.
PRESIDING JUSTICE WOLFSON delivered the opinion of the
court:
The jury in this murder trial watched the videotape where
defendant Trevelle Jackson described how he took part in the
fatal shooting of Anthony Redmond. Based on the defendant’s oral
and videotaped confessions and little else, the jury found the
defendant guilty of first degree murder. He was sentenced to 40
years in prison. The only issue in this appeal is whether the
defendant’s confessions were admissible.
Before trial, the trial court granted the defendant’s motion
to quash arrest based on a lack of probable cause. Then the
court denied defendant’s motion to suppress statements he made to
police, finding the statements were voluntary and were
sufficiently attenuated from the illegal arrest. On appeal,
defendant makes two claims: his conviction should be reversed
because his confessions were the fruit of his illegal arrest, and
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the length and circumstances of his detention show his
confessions were not voluntary. We conclude the trial court
erred when it found attenuation. We reverse the defendant’s
conviction and remand this cause for a new trial.
FACTS
The defendant’s first trial ended in a mistrial after the
jury failed to reach a verdict. At the second trial, evidence
was presented that on June 19, 2001, at approximately 12:20 p.m.,
Anthony Redmond was shot and killed by the defendant and Larry
Chatman. The shooting took place outside the Spin Cycle
Laundromat at 4258 West Madison Street in Chicago.
Because attenuation issues are fact-intensive, we set out
the relevant facts in some detail.
Before the first trial, the court held a hearing on
defendant’s motion to quash arrest. Chicago police officer
Renata Keating testified that on June 19, 2001, at approximately
1:30 p.m., she received an assignment to go to 2110 West Randolph
Street for a "person wanted call." She found defendant at the
address and asked the defendant if he would be willing to go to
the Area 4 police station to speak with detectives regarding a
homicide. The defendant agreed to accompany her to the station.
The defendant was not handcuffed or read his Miranda rights.
They arrived at Area 4 between 1:30 and 2 p.m. Keating placed
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the defendant in an interview room at the station. Keating
locked the door on her way out. Keating asked no questions of
the defendant. She informed detectives James Sanchez and Gus
Vasilopoulos that defendant was at the station.
At about 2:30 p.m., detectives Sanchez and Vasilopoulos
spoke with the defendant in the interview room at Area 4. The
conversation lasted 15 to 20 minutes. Sanchez introduced himself
to the defendant and advised him of his Miranda rights. The
defendant said he understood his rights. The defendant said he
was at the house at 2110 West Randolph where a shooting occurred
at 9:15 that morning. He denied any knowledge of the shooting at
the laundromat.
The detectives called for an evidence technician to
administer a gunshot residue test on the defendant. The
technician arrived and administered the test. The technician
noticed a black smudge on defendant’s waistline that appeared to
be gunshot residue. He inventoried the defendant’s shirt and
took possession of it for testing. Defendant was given another
shirt to wear. The detectives locked the door when they left the
room.
Sanchez said he continued to try to locate witnesses until 8
or 9 p.m. on June 19th, then went home. He said that at that
time the defendant was not free to leave "[b]ecause we had not
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located witnesses and our investigation was still ongoing."
Detective John Pellegrini testified he formally placed the
defendant under arrest on June 21, 2001, at approximately 4:30
p.m., after defendant made admissions concerning the shooting.
Until that time, the defendant denied any involvement in the
crime.
The trial court granted defendant’s motion to quash arrest.
The judge found the police had no probable cause to arrest
defendant until he confessed. He found the defendant voluntarily
went to the police station on June 19th at 1:30 p.m. The judge
did not identify the precise moment defendant was placed under
arrest, but said it was on June 19th before Detective Sanchez
went home at the end of his shift. He said the fact that Officer
Keating locked the door to the interview room did not necessarily
mean defendant was under arrest because it could simply be a
habit. The State does not challenge the court’s decision to
quash the arrest.
The court held a second hearing to decide the State’s motion
for attenuation, together with the defendant’s motion to suppress
statements. At the hearing, Detective Sanchez repeated his
testimony about his interview with the defendant at 2:30 p.m. on
June 19. In that interview, following the reading of his Miranda
rights, the defendant said someone named "Tricky" shot at his
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aunt’s house that morning. The defendant denied any knowledge of
or involvement in the Redmond murder.
At approximately 4 p.m., witness Sonya Haggard came to the
station to view a lineup that included the defendant. She was
not able to make an identification. Following the lineup, the
detectives continued to try to locate witnesses.
At 8:30 p.m. on the 19th, the detectives spoke with the
defendant again. First they read defendant his Miranda rights.
Defendant again denied knowledge of the shooting.
On June 20th, at 8:30 or 9 a.m., Detective Sanchez checked
in on the defendant, took him to the restroom, and gave him
breakfast. Detectives Sanchez and Pellegrini returned defendant
to the interview room. They spoke with the defendant for 15 to
30 minutes. Detective Pellegrini read defendant his Miranda
rights. The defendant said he had not told the truth earlier.
He said a woman named Shaquala had told him Larry Chatman had
killed Redmond. Defendant again denied his involvement in the
shooting. The detectives asked defendant to take a lie detector
test. Defendant agreed to take the test.
At 3:30 p.m., detectives Sanchez, Pellegrini, and
Vasilopoulos took defendant to the Homan Square police facility
where he was given a polygraph test. Detective Kevin Howley, who
administered the test, said he gave the defendant a consent form
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that contained Miranda warnings. Defendant appeared to read the
form then signed his name. The test lasted a little over three
hours. At the conclusion of the test, Howley told the detectives
the test indicated deception as to defendant’s knowledge of and
involvement in the shooting.
The detectives told the defendant he had failed the test.
The defendant repeated a statement he had made during the
polygraph test. He said that on June 19th, Redmond and his
friend Parish Lundy, a/k/a "Tricky," drove by the house at 2110
West Randolph Street. Defendant’s cousin, Byron Logan, told him
Redmond "just shot up his house, and he was going to go get him."
Later that day, the defendant saw Byron, Cornelius Jackson, and
Larry Chatman driving up Lake Street. The defendant then walked
back to the house on Randolph. Following the statement, the
detectives transported defendant back to Area 4. On the way
back, they stopped and purchased food for the defendant.
At around 8 p.m., the detectives spoke with the defendant
for 15 to 20 minutes in the interview room at Area 4. Pellegrini
first reminded defendant of his Miranda warnings. They told him
he was not being truthful with them. The defendant repeated his
earlier statement. He also said that after he returned to the
house on Randolph, he saw Byron’s girlfriend Fallon holding a box
of nine-millimeter bullets. Fallon told him Byron had dropped
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the bullets off and asked her to get rid of them. Fallon then
dropped them in a sewer behind the house. A girl named Shaquala
pulled up and told them that Chatman had killed Redmond.
Following defendant’s statement, the detectives went to the
address and found nine-millimeter bullets in the sewer behind the
house. After the crime lab arrived, the detectives returned to
Area 4.
At around 9:30 p.m., they spoke with the defendant for about
20 minutes. They reminded the defendant of his Miranda rights.
Defendant repeated his previous statements. He denied
involvement in the murder.
Detective Sanchez had no further contact with the defendant.
He denied ever "feeding" the defendant information about the
shooting. He denied ever threatening or striking the defendant
during his detention. All the detectives who testified denied
that defendant ever was handcuffed.
On June 21, 2001, at about 9 a.m., detectives Pellegrini and
Vasilopoulos gave the defendant breakfast and took him to the
restroom. Pellegrini told defendant they were going to locate
witnesses so he could participate in a lineup. They returned at
about 1:30 p.m. They gave defendant some food. Defendant asked
to use the restroom.
At around 2 p.m., as the detectives were escorting the
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defendant to the restroom, the defendant saw Detective Jacqueline
Mok sitting at a computer. The defendant asked them if he could
speak alone with Mok. He said he knew her when she was a
tactical officer in the 13th District. Mok was not part of the
investigation at that time. She worked in the property crimes
division.
Pellegrini put defendant back in the interview room. He
spoke with Mok for about five minutes outside the defendant’s
presence. He explained the basic facts of the investigation and
asked her if she knew the defendant. She said she did and agreed
to speak with him.
At 3 p.m., Mok went into the interview room to speak with
the defendant. The conversation lasted about 10 minutes. The
defendant told her he wanted to talk about the case. Mok advised
him of his Miranda rights, and defendant said he understood.
Defendant asked Mok what he should do. Mok told him he
should tell the truth. Defendant said he was scared because his
boys might kill him if he told the truth. Mok told him he had to
tell the whole truth, 100% of the truth, not 90%, because
otherwise they wouldn’t believe anything he had to say. She told
the defendant that if he was afraid of his boys, she would drive
him to his father’s house to get him out of the neighborhood.
Defendant said he wanted to tell the truth. Mok told him she had
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to get Detective Pellegrini. Defendant said that was fine.
When Mok and Pellegrini returned to the interview room,
Pellegrini re-advised the defendant of his Miranda rights. They
proceeded to speak with the defendant for about an hour-and-a-
half. For the first time, defendant implicated himself in the
killing of Anthony Redmond. The defendant said he was at his
cousin Byron’s house when Redmond and Tricky drove by and shot at
the house. Defendant and Byron then went to Cornelius Jackson’s
house and met with Larry Chatman. The four of them got in a car
to look for Redmond. They stopped at the house of a girl named
Tasha. Jackson went inside, got a gun, and came back out. They
began driving and saw Redmond’s car in the parking lot of a
laundromat. They parked the car. Chatman walked to the side of
the building and looked to see if Redmond was inside. When
Redmond came out, Chatman ran up to him and shot him numerous
times. He ran back to the car, and they drove away.
Pellegrini told the defendant they knew he was not being
entirely truthful because the investigation showed there were two
shooters. He told defendant that when they located more
witnesses, the witnesses would come in to identify defendant in a
lineup. Defendant then said he would tell the whole truth. He
repeated his story, except he said Jackson retrieved two handguns
from Tasha’s house. Jackson gave one gun to Chatman and one to
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the defendant. When they arrived at the laundromat, Chatman and
the defendant got out of the car. As Redmond left the
laundromat, both defendant and Chatman ran up to him and began
shooting. Defendant shot three times, and Redmond started to run
away. Chatman continued to shoot Redmond as he lay on the
ground.
Mok testified that when she first went in to speak with the
defendant, she thought he was a witness to the shooting. She
said she did not observe any injuries on the defendant, nor did
he tell her he had been abused by any police officers.
Detective Pellegrini testified that at about 9 p.m., the
defendant participated in lineups and was identified by two
witnesses. No witnesses identified the defendant at trial or
testified about identifying the defendant in a lineup. The State
did not rely on a lineup identification during the attenuation
hearing or in this appeal.
At 10 p.m., Mok and Assistant State’s Attorney Peter Guy
Lisuzzo spoke with the defendant. Lisuzzo advised defendant of
his Miranda rights and talked with the defendant for 30 to 45
minutes. They left the room and returned 15 to 20 minutes later.
Lisuzzo offered the defendant four options to memorialize his
statement. The defendant chose a videotaped statement. The
statement was taken at 1:42 a.m. on June 22, 2001. The defendant
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said he was giving the statement freely, and no threats or
promises had been made to him in exchange for the statement. The
defendant did not tell Lisuzzo he had been mistreated by the
police. The videotaped statement was substantially similar to
defendant’s oral confession, with more details. Mok was present
during all of the videotaped confession. She said nothing.
The defendant took the stand and testified he was 21 years
old and had attended high school until the ninth grade. He
identified photographs taken of his head and torso on June 26,
2001. He said the photos showed bruising on his rib cage, chest,
back, and behind the ear. He said the bruising and redness
resulted from Detective Sanchez hitting him over 20 times while
he was in custody. Detective Sanchez also threatened that he
would "kick [defendant’s] ass."
The defendant denied receiving Miranda warnings from any of
the officers. He said he asked to use the phone several times,
but was denied. His right hand was handcuffed to the wall the
entire time he was in the interview room. He was not able to
sleep because he had to kneel on the floor with his arm attached
to the wall.
The defendant said he saw Detective Mok on June 20th, when
she poked her head in the door of the interview room, then left.
She came into the room and told the defendant they "told her all
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about it," and defendant "might as well tell them." Mok told him
she would be back the next day. The next morning, on June 21st,
Mok came back to the room. Defendant had not asked to see her.
He asked her whether he could use the telephone. He was not
allowed to use it. He told her Sanchez had been beating him.
She told him, "You might as well tell him something."
Defendant testified that before the videotaped statement, he
never told any of the detectives what happened. He said
Detective Sanchez "fed" him the details about the shooting he
described in his videotaped statement.
In rebuttal, Detective Mok testified defendant never asked
to use the phone. She denied peeking in the room on June 20th.
Defendant never told her Sanchez had beaten him or threatened
him.
Ulysses Johnson, an EMT at Cermak Health Services, performed
a physical examination of the defendant on June 23, 2001, as part
of the intake process at the jail. Johnson did not note any
injuries on defendant’s body. Defendant did not complain of any
injuries.
The trial court denied defendant’s motion to suppress
statements and granted the State’s motion for attenuation. The
judge said he did not believe defendant’s testimony that he was
beaten. He said the photographs showed nothing. He did not
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believe defendant’s testimony that none of the officers gave him
Miranda warnings. Nor did he believe the officers’ testimony
that they read defendant his rights every time they entered the
room. He said the truth lay somewhere in between. The judge
found the defendant was under arrest for about 40 hours before he
gave a statement. The videotape was evidence that defendant’s
statement was voluntary because defendant testified he had an
opportunity to say whatever he wanted. The judge believed the
officers’ testimony that defendant asked to speak with Detective
Mok.
At defendant’s second trial, police officers testified
regarding the call of shots fired at 2110 West Randolph on the
morning of June 19th, and the listing of "Ant" and "Tricky" as
possible offenders.
Sonya Haggard testified she was at the Spin Cycle Laundromat
at 4258 West Madison Street at about 12:15 p.m. on June 19th.
She saw two men standing outside. The bigger man yelled, then
both men pulled guns from their waistbands and began shooting at
the victim. The bigger man shot the victim a few times after he
fell. Haggard did not get a good look at the smaller man and was
not able to identify him during a lineup. In a later lineup, she
identified Larry Chatman as the other shooter.
Jacob Wilder also testified he saw two people shoot the
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victim. In July 2001, Wilder identified the bigger shooter in a
lineup. He did not say he identified the defendant in a lineup.
Neither Haggard nor Wilder identified the defendant at trial.
A latent print examiner could not find any identifiable
fingerprints on 11 discharged cartridge cases. A gunshot residue
analysis performed on defendant’s hands and T-shirt revealed
particles consistent with gunshot residue. The trace evidence
analyst was not able to make a conclusive finding of gunshot
residue based on a lack of at least three unique particles. On
cross-examination, he said the tests were "negative" for gunshot
residue.
Defendant’s videotaped statement was played for the jury.
On the tape, defendant said Redmond shot at the house where he
was staying. Later that day, the defendant and three other
people drove around looking for Redmond. When they saw Redmond’s
car at the laundromat, the defendant and Chatman got out and shot
Redmond as he left the building.
The defendant did not testify or offer any evidence. The
jury returned a verdict of guilty of first degree murder and a
finding that defendant personally discharged a firearm at the
time of the offense. Defendant received a sentence of 40 years’
imprisonment.
DECISION
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I. Attenuation
The defendant contends his confessions should have been
suppressed because they were the product of his illegal arrest.
The determination that a defendant’s arrest was illegal does not
resolve the issue of whether the subsequent confession is
admissible. People v. Foskey, 136 Ill. 2d 66, 85, 554 N.E.2d 192(1990). The relevant inquiry is whether the confession was
obtained by exploitation of the illegality of the arrest. Brown
v. Illinois, 422 U.S. 590, 600, 45 L. Ed. 2d 416, 425, 95 S. Ct.
2254, 2260 (1975). Evidence obtained following an illegal arrest
need not be suppressed if such evidence was obtained " ‘by means
sufficiently distinguishable to be purged of the primary taint of
illegality.’ " People v. White, 117 Ill. 2d 194, 222, 512 N.E.2d
677 (1987), quoting Wong Sun v. United States, 371 U.S. 471, 487-
88, 9 L. Ed. 2d 441, 455, 83 S. Ct. 407, 417 (1963).
"The question whether a confession is the product of a free
will under Wong Sun must be answered on the facts of each case.
No single fact is dispositive." Brown, 422 U.S. at 603, 45 L.
Ed. 2d at 427, 95 S. Ct. at 2261. The analysis under the fourth
amendment is distinct from the "threshold requirement" of
voluntariness under the due process clause. People v. Lekas, 155
Ill. App. 3d 391, 411, 508 N.E.2d 221 (1987).
Factors to be considered in determining whether a confession
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was the product of an illegal arrest are: (1) whether Miranda
warnings were given; (2) the proximity in time between the arrest
and confession; (3) the presence of intervening circumstances;
and (4) the purpose and flagrancy of the police misconduct.
Brown, 422 U.S. at 603-04, 45 L. Ed. 2d at 427, 95 S. Ct. at
2261-62. Intervening circumstances and police misconduct are
considered the key factors in attenuation analysis. People v.
Wilberton, 348 Ill. App. 3d 82, 85, 809 N.E.2d 745 (2004).
The State has the burden of proving attenuation. Foskey,
136 Ill. 2d at 86; White, 117 Ill. 2d at 222. The State must
show by clear and convincing evidence that the challenged
evidence was obtained by means sufficiently distinguishable to be
purged of the primary taint. People v. Watson, 315 Ill. App. 3d
866, 881, 735 N.E.2d 75 (2000).
Traditionally, where the disposition of a suppression motion
turns on factual determinations and credibility assessments, the
circuit court’s factual findings will be upheld on review unless
they are against the manifest weight of the evidence. People v.
Pitman, 211 Ill. 2d 502, 512, 813 N.E.2d 93 (2004). However, a
reviewing court is free to make 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. Pitman,
211 Ill. 2d at 512. We review de novo the ultimate question of
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whether defendant’s confessions should have been suppressed on
fourth amendment grounds. Pitman, 211 Ill. 2d at 512; People v.
Scott, 366 Ill. App. 3d 638, 646, 852 N.E.2d 531 (2006); People
v. Wilberton, 348 Ill. App. 3d 82, 85, 809 N.E.2d 745 (2004).
A. Presence of Miranda Warnings
“Although police cannot dissipate the taint of an illegal
arrest simply by giving Miranda warnings, the presence of the
warnings prior to interrogation carries some weight.” Wilberton,
348 Ill. App. 3d at 85.
Here, the trial court did not believe the officers’
testimony that they read defendant his rights on each and every
occasion he was interviewed. Nor did the trial court believe
defendant when he said none of the officers gave him Miranda
warnings. The court found, “the truth lies somewhere in
between.” The trial court did not determine the number of times
he believed Miranda warnings were given or when they were given.
While defendant may not have been advised of his rights before
every interrogation session, we find he was advised of his
Miranda rights more than once and perhaps several times before he
made his incriminating statement to detectives Mok and
Pellegrini.
But the presence of Miranda warnings cuts both ways in this
case. The fact that defendant received Miranda warnings before
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he made his incriminating statement could be said to indicate he
voluntarily waived his rights and agreed to give a statement,
which weighs in favor of attenuation. See Wilberton, 348 Ill.
App. 3d at 85. On the other hand, the fact that defendant
continually received Miranda warnings after denials of guilt
supports defendant’s contention that the detectives would not
accept his denial of any involvement in the murder and would
continue questioning him until he confessed.
We find the presence of Miranda warnings does not clearly
favor either suppressing or attenuating defendant’s confessions.
B. Temporal Proximity of Arrest and Statement
We next consider the proximity in time between defendant’s
arrest and his confessions. First, we have to determine when and
where the illegal arrest and detention took place.
Defendant contends 51 hours passed between his unlawful
arrest and his confessions. The trial court found defendant’s
illegal arrest and detention began when Detective Sanchez left
for the evening on June 19, 2001, which indicates defendant was
in custody for around 40 hours before confessing.
In People v. Ollie, 333 Ill. App. 3d 971, 984, 777 N.E.2d
529 (2002), we held the giving of Miranda warnings, while not
dispositive, is commonly recognized as an indicia of arrest. We
held, “a reasonable innocent person, having been advised of his
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Miranda rights, having stated that he knew nothing about the
crime in question, and having been returned to the interview room
rather than released, would not have believed he was free to go.”
Ollie, 333 Ill. App. 3d at 984.
In this case, Detectives Sanchez and Vasilopolous
interviewed defendant at about 2:30 p.m. on January 19, 2001.
Upon entering the interview room, they immediately advised
defendant of his Miranda rights. The detectives then questioned
defendant for 15 to 20 minutes. Defendant denied any knowledge
of or involvement in the murder. After noticing a smudge mark on
defendant’s t-shirt, the detectives notified the crime lab and
submitted his shirt for a gunshot analysis. Defendant was given
another shirt to wear. The detectives then left defendant in the
locked interview room while they went to look for witnesses.
Defendant made his first incriminating statement at around 4:30
p.m. on June 21, 2001, 50 hours after the first interview.
We conclude a reasonable innocent person, having been
advised of his Miranda rights, having stated that he knew nothing
about the murder in question, having had his shirt removed for a
gunshot residue analysis, and having been kept in a locked
interview room rather than released after questioning, would not
believe he was free to go. See Ollie, 333 Ill. App. 3d at 984.
We find defendant was placed under arrest when Detectives Sanchez
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and Vasilopolous read him his Miranda rights in a locked
interview room during his first interview, which, according to
Detective Sanchez’s testimony, occurred sometime around 2:30 p.m.
on January 19, 2001. We find defendant was illegally detained
for at least 50 hours before he confessed, not 40 hours as the
trial court found. The trial court’s finding was against the
manifest weight of the evidence.
A lapse of time may dissipate the taint of an illegal arrest
by allowing the accused to reflect on his situation. Scott, 366
Ill. App. 3d at 647; Wilberton, 348 Ill. App. 3d at 85. However,
the length of time between the illegal arrest and a confession is
an ambiguous attenuation factor at best. People v. Klimawicze,
352 Ill. App. 3d 13, 19, 815 N.E.2d 760 (2004); People v. Vega,
250 Ill. App. 3d 106, 117, 620 N.E.2d 1189 (1993). “ ‘[W]here
intervening circumstances are present, a long period between
arrest and confession may support the inference that it was the
intervening circumstances, and not the illegal arrest, which
prompted the confession. However, where no intervening
circumstances are present, a long and illegal detention may in
itself impel the defendant to confess.’ ” Klimawicze, 250 Ill.
App. 3d at 19, quoting White, 117 Ill. 2d at 224.
Here, defendant was questioned about eight times during the
50-hour period, with each session lasting only a short amount of
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time. While we recognize the defendant was not relentlessly
questioned while in custody, we note the questioning proceeded in
a clockwork fashion, despite defendant’s repeated denials of any
involvement in the murder. The inordinate length of defendant’s
detention allowed the detectives to exploit his illegal arrest.
We find the 50-hour period between defendant’s arrest and his
confessions weighs against attenuation.
C. Intervening Circumstances
This factor requires us to examine the events that occurred
between the first moment of the unlawful detention and the
defendant’s confessions, some 50 hours later. That is because
the mere fact that the defendant was unlawfully arrested does not
mean the subsequent confessions are inadmissible, People v.
Bates, 218 Ill. App. 3d 288, 297-98, 578 N.E.2d 240 (1991),
although the initial illegality does create a primary taint
which, if not sufficiently purged, will result in suppression.
White, 117 Ill. 2d at 222. We will not apply a simple "but for"
test; the statements must have been obtained by exploitation of
the police illegality. Brown, 422 U.S. at 598-99, 45 L. Ed. 2d
at 424, 95 S. Ct. at 2259.
The fact that the trial court found no physical abuse or
coercion, a finding we accept, does not resolve the fourth
amendment issues that have been raised. Absence of physical
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abuse or coercion "merely establishes the threshold requirement
for admissibility." White, 117 Ill. 2d at 223. The question we
must resolve is whether the State has proved the existence of
some intervening circumstance that broke the " ‘causal connection
between the illegal conduct and the confession.’ " People v.
Austin, 293 Ill. App. 3d 784, 788, 688 N.E.2d 740 (1997), quoting
People v. Turner, 259 Ill. App. 3d 979, 993, 631 N.E.2d 1236(1994).
What kind of intervening circumstance will break the causal
connection and eliminate the taint of illegality? It has to be
something that induces a voluntary desire to confess. Wilberton,
348 Ill. App. 3d at 86. It cannot be something that was obtained
illegally--statements from unlawfully arrested codefendants, for
instance. People v. Clay, 349 Ill. App. 3d 517, 524, 812 N.E.2d
473 (2004). Nor can it be information obtained by exploiting the
illegality of the defendant’s detention. People v. Simmons, No.
1-05-3618 (Ill. App. Ct., April 18, 2007) (witness found through
defendant’s statement during unlawful detention is not a
sufficient intervening circumstance.) This court recently found
taking an illegally held suspect to a bloody crime scene, thus
inducing a confession, cannot be said to be an intervening
circumstance that dissipates the taint of illegality because
"defendant most likely would not have been confronted by the
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crime scene had he not been unlawfully detained by Officer
Fassl." People v. Scott, 366 Ill. App. 3d 638, 648, 852 N.E.2d
531 (2006). We also have said a confession obtained by showing
the defendant his unlawfully obtained bloody shoes remains
tainted by illegality. Turner, 259 Ill. App. 3d at 993.
Our supreme court has held a polygraph examination conducted
during the defendant’s illegal detention is a consequence of that
detention and a form of interrogation, excluding it from
consideration as an intervening circumstance. People v.
Franklin, 115 Ill. 2d 328, 334, 504 N.E.2d 80 (1987). We do not
consider the polygraph examination of defendant in this case to
be an intervening circumstance.
Where an intervening circumstance has been held sufficient
to break the causal chain it has been new information, untainted
by illegality. Bates, 267 Ill. App. 3d at 506. See, for
example, Wilberton, 348 Ill. App. 3d at 88-89 (a co-defendant’s
lawfully obtained statement incriminating the defendant is
sufficient to purge the taint of illegality.) See also People v.
Gabbard, 78 Ill. 2d 88, 398 N.E.2d 574 (1979) (showing defendant
a sketch of the man identified as committing the crime was a
sufficient intervening circumstance); In re R.S., 93 Ill. App. 3d
941, 946-47, 418 N.E.2d 195 (1981) (showing defendant a stolen
clock seized pursuant to a valid search warrant was enough to
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attenuate illegality.) In addition, the fact that a defendant’s
confession was given to officers other than those who unlawfully
arrested him is not a sufficient intervening circumstance, even
though those officers know little or nothing about the
circumstances of defendant’s arrest. White, 117 Ill. 2d at 225.
One constant strain runs throughout the decisions: an
intervening circumstance sufficient to dissipate the taint must
be independent of the unlawful arrest. See People v. Morris, 209
Ill. 2d 137, 159, 807 N.E.2d 377 (2004) ("The information giving
rise to probable cause was obtained independently of defendant’s
illegal arrest."); Wilberton, 348 Ill. App. 3d at 88 ("Probable
cause arose independently of defendant’s arrest, weighing heavily
in favor of attenuation.")
The State relies on the unplanned, unanticipated appearance
of Detective Mok and the events that followed to establish
intervening circumstances sufficient to attenuate the
confessions. The State contends the confessions were
volunteered, not made in response to police interrogation,
therefore not an exploitation of illegality. We do not agree.
Like the different interrogating officers in Morris, the
finding of witnesses in Simmons, and the viewing of the bloody
crime scene in Scott, the defendant’s request to talk to
Detective Mok in the interrogation room was not independent of
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the chain of illegality. It was an integral part of it.
Further, contrary to the State’s contention, we believe the
defendant’s confessions, oral and tape-recorded, were obtained
through interrogation and were not volunteered.
Before entering the interrogation room, Detective Mok met
with the investigating officer for five minutes. Once in the
interrogation room the first thing she did was give defendant
Miranda warnings. She told him to tell the truth, the whole
truth, not 90 percent of it. When he said he was scared his boys
might kill him if he told the truth, she offered to protect him.
She asked no questions. Instead, she left the room and came back
with Detective Pellegrini, who again advised the defendant of his
rights. The detectives spoke to the defendant for 90 minutes,
posing questions. Later, he gave a videotaped confession where
Detective Mok was present, but she said nothing to the defendant.
"Interrogation" refers to express questioning as well as
"any words or actions on the part of the police, other than those
normally accompanying arrest and custody, that the police should
know are reasonably likely to elicit an incriminating response
from a suspect." People v. Olivera, 164 Ill. 2d 382, 391-92, 647
N.E.2d 926 (1995), citing Rhode Island v. Innis, 446 U.S. 291,
301, 64 L. Ed. 2d 297, 308, 100 S. Ct. 1682, 1689-90 (1980).
See, e.g., Brewer v. Williams, 430 U.S. 387, 401, 51 L. Ed. 2d
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424, 97 S. Ct. 1232, 1241 (1977) (police officer interrogated
defendant when he said, "the parents of this little girl should
be entitled to a Christian burial***") The focus is primarily on
the perceptions of the suspect, rather than the intent of the
police. Olivera, 164 Ill. 2d at 392. But see People v. Jones,
337 Ill. App. 3d 546, 552-53, 786 N.E.2d 243 (2003) (police
officer saying to defendant he had found a handgun in defendant’s
vehicle after a traffic stop was not interrogative because it was
not reasonably likely to elicit an incriminating response.)
We find Detectives Mok and Pellegrini knew their words and
actions were likely to elicit incriminating responses from the
defendant. Those responses led directly to the videotaped
confession elicited by an assistant state’s attorney. As held in
Innis and Brewer, no formal questions are required to constitute
a police interrogation. This defendant was interrogated. It was
an exploitation of the initial illegality, not an intervening
circumstance.
D. Purpose and Flagrancy of Police Misconduct
The presence of purposeful and flagrant police misconduct
weighs against attenuation. Klimawicze, 352 Ill. App. 3d at 23;
Wilberton, 348 Ill. App. 3d at 89. “Police action is flagrant
where the investigation was carried out in such a manner to cause
surprise, fear, and confusion, or where it otherwise has a
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‘quality of purposefulness,’ i.e., where the police embark upon a
course of illegal conduct in the hope that some incriminating
evidence (such as the very statement obtained) might be found.”
People v. Jennings, 296 Ill. App. 3d 761, 766, 695 N.E.2d 1303(1998), citing Foskey, 136 Ill. 2d at 86.
In Scott, 366 Ill. App. 3d at 648, this court held the
presence of purposeful and flagrant police misconduct weighed in
favor of suppression. While only the defendant’s testimony
indicated any mistreatment at the hands of the police officers,
the detective admitted his objective in questioning defendant and
transporting him to the crime scene was to elicit a confession.
The court held the detective’s technique “amounted to an
exploitation of defendant’s illegal detention.” Scott, 366 Ill.
App. 3d at 648. The detective had no other evidence to discredit
the anonymous tip implicating the defendant, and therefore had no
probable cause to hold the defendant in his attempts to elicit
the defendant’s confession. Scott, 366 Ill. App. 3d at 648.
As in Scott, the conduct of the detectives in this case
suggests the presence of purposeful and flagrant police
misconduct. While the detectives did not specifically testify
that their purpose in questioning defendant and transporting him
to the police station was to elicit a confession, Detective
Sanchez said they were looking for witnesses in the ongoing
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investigation while defendant was in the locked room. We believe
their purpose was to investigate and gather incriminating
evidence regarding defendant’s involvement in the murder. Even
though defendant repeatedly denied any involvement in the murder,
the detectives detained him alone in a locked interview room for
50 hours, removed his shirt to test for gunpowder residue,
subjected him to a polygraph examination, and conducted an
eyewitness line-up identification, which failed to identify him
as one of the suspects. The questioning process was entirely
investigatory in nature. The officers detained defendant for 50
hours in order to conduct a “fishing expedition” to establish
probable cause. See Simmons, No. 1-05-3618, slip op. at 18 (“We
agree with defendant’s assertion that officers rounded up
defendant and then conducted a fishing expedition in order to
establish probable cause”); Jennings, 296 Ill. App. 3d at 766.
We find the detectives’ flagrant and purposeful misconduct
“amounted to an exploitation of defendant’s illegal detention.”
See Scott, 366 Ill. App. 3d at 648. This factor weighs against
attenuation.
II. Voluntariness
To determine whether a defendant’s confession was voluntary,
courts consider the totality of the circumstances, including the
defendant’s age, intelligence, education, experience, and
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physical condition at the time of the detention and interview;
whether Miranda warnings were issued; whether the defendant
suffered any physical or mental abuse; and the legality and
duration of the detention. People v. Willis, 215 Ill. 2d 517,
536, 831 N.E.2d 531 (2005); People v. Woodard, 367 Ill. App. 3d
304, 314, 854 N.E.2d 674 (2006).
We review de novo the trial court’s ultimate decision on the
motion to suppress. People v. Nicholas, 218 Ill. 2d 104, 116,
842 N.E.2d 674 (2006). The trial court’s factual findings,
however, are given deference and will be accepted unless
manifestly erroneous. Nicholas, 218 Ill. 2d at 116. “Manifestly
erroneous means arbitrary, unreasonable and not based on the
evidence.” People v. Ballard, 206 Ill. 2d 151, 162, 794 N.E.2d
788 (2002).
In this case, the record reflects defendant was 20 years old
at the time of his questioning and had 9 prior contacts with the
police. While the trial court did not believe the officers’
testimony that they read defendant his rights every time they
entered the room, it also did not believe defendant’s testimony
that none of the officers gave him Miranda warnings. The court
found the truth rested somewhere in between. The trial court
also did not believe defendant’s testimony that he was beaten
during questioning. Johnson, an EMT, did not note any injuries
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on defendant’s body during the intake process at the county jail.
In denying defendant’s motion to suppress, the court found the
videotape showed defendant’s statement was voluntary because
defendant had an opportunity to say whatever he wanted. The
court also believed Detective Mok’s testimony that defendant
asked to speak to her. We have reviewed the videotape and we
find no evidence defendant was abused or maltreated in a way
relevant to our voluntariness analysis.
After reviewing the record, we find the trial court did not
err in denying defendant’s motion to suppress his statements on
involuntariness grounds. See Willis, 215 Ill. 2d at 537-39(defendant’s confession was voluntary even though he was held in
detention for 73 hours prior to confessing.)
CONCLUSION
We conclude the State did not prove attenuation by clear and
convincing evidence. For that reason we reverse the defendant’s
conviction and sentence and order that the confessions made by
the defendant be suppressed. In accord with the holding in
Olivera, 164 Ill. 2d at 393, we find the evidence submitted at
trial is sufficient to support a guilty verdict. We therefore
remand this cause for a new trial.
Reversed and remanded.
SOUTH, and HALL, JJ., concur.
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