People v. Flores

2014 IL App (1st) 121786FIFTH DIVISION
November 14, 2014
No. 1-12-1786
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
) Circuit Court of
Plaintiff-Appellee, ) Cook County.
)
v. ) No. 07 CR 16031
)
OSCAR FLORES, ) Honorable
) Maura Slattery Boyle,
Defendant-Appellant. ) Judge Presiding.
JUSTICE McBRIDE delivered the judgment of the court, with opinion.
Presiding Justice Palmer and Justice Reyes concurred in the judgment and opinion.
OPINION
¶1 Following a jury trial, defendant Oscar Flores was found guilty of the first degree murder
of Victor Casillas and the attempted murder and aggravated battery with a firearm of Lionel
Medina. Defendant was subsequently sentenced to a total of 80 years in the Illinois Department
of Corrections.
¶2 Defendant appeals, arguing that: (1) the trial court erred in denying his motion to
suppress his July statements, which were involuntary and were obtained in violation of his right
to remain silent and his right to an attorney; (2) the trial court violated his constitutional right to
present a defense when it barred him from presenting evidence of his suppressed May statements
to police; (3) defendant was denied a fair trial when the trial court admitted prejudicial photos
from MySpace without proper authentication and foundation; and (4) his trial counsel was
ineffective for failing to object to testimony that defendant's photo was in a Chicago police
database and he had previously been arrested.
No. 1-12-1786
¶3 The shootings occurred around 8:30 p.m. on March 19, 2007, near West 30th Street and
South Kildare Avenue in Chicago. Defendant was interrogated and gave statements in May and
July 2007. In May, defendant was arrested and held nearly 50 hours in an interrogation room.
Defendant eventually gave statements admitting that he was the shooter. In July, he was arrested
again and interrogated by one of the same detectives. Defendant again admitted during
questioning to being the shooter. Prior to trial, defendant moved to suppress both his May and
July statements on the grounds that: (1) his May statement was obtained in violation of his right
to counsel and his right to remain silent; (2) his July statement was obtained in violation of his
right to remain silent; and (3) both statements were involuntary. At the hearing, neither party
presented any witness testimony, but relied on the recordings of the interrogations. After
viewing the recordings, the trial court granted the motion as to the May statements, finding that
defendant explicitly asked for a lawyer and the detectives improperly reinitiated questioning 14
to 15 hours later. The court did not reach the question of whether the statements were
involuntary.
¶4 As to the July statements, the trial court held that defendant's May request for an attorney
was no longer in effect. The court found that defendant did not invoke his right to remain silent
because even though defendant responded, "Not really. No." when asked if he wanted to speak
with the detectives, defendant "still [kept] engaging the detectives." The court concluded that
defendant's Miranda rights were not violated. The court further found that the statement was
voluntary and defendant's will was not overborne.
¶5 Defendant filed a motion to reconsider and asked for a ruling on whether his May
statement was voluntary. The trial court denied the motion to reconsider, but found the
statements were voluntarily made. Defendant also filed a motion to suppress his statements on
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No. 1-12-1786
the basis that the recordings were inaudible, which the trial court denied. Defendant later filed a
motion to reopen his motion to suppress his July statements, arguing that the statements were
obtained in violation of his request for counsel. The trial court denied the motion, finding that
the request for counsel was not clearly expressed.
¶6 The State filed a motion in limine to bar defendant from introducing his May statements
at trial. Defendant responded that he should be allowed to admit evidence of the May
interrogation to explain why he confessed in July. The trial court granted the motion, finding
that the suppressed statements were inadmissible hearsay. The court stated that defendant would
have to satisfy an exception to the hearsay rule in order for any portion of the statements to be
admitted.
¶7 Defendant also filed a pretrial motion to exclude evidence of MySpace photographs
depicting either defendant or Casillas, based on lack of foundation and prejudice. At the hearing,
trial counsel argued that "no one is going to be able to testify whose MySpace page they actually
came from, or how the detectives were even allowed onto that website." Counsel asserted there
was "no way to lay a foundation for this." The trial court allowed the admission of two photos at
trial, finding that the photographs were not prejudicial and were relevant to the police's course of
investigation.
¶8 The following evidence was presented at defendant's October 2011 jury trial. The State
presented the testimony of former assistant State's Attorney (ASA) Fred Sheppard. Sheppard
testified that he obtained a videotaped statement from defendant at 1 a.m. on July 15, 2007. The
videotape was played for the jury. Defendant stated that he joined the Latin Kings when he was
15 or 16. His nickname was "Little Panther" and no one called him "Little Rowdy."
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¶9 On the day of the offense, defendant met Macias at South Drake Avenue and West 26th
Street. They got in a van driven by a friend. They rode around for a while, and the van was
parked near Drake and 27th Street. A short time later, Macias suggested they get in the van.
Macias got in the driver's seat and defendant was in the passenger seat. While driving, they
stopped by Macias's house. Macias went in the house and returned with a white plastic bag,
which he placed under the driver's seat.
¶ 10 Macias then drove toward the Two-Six neighborhood. While they were driving, Macias
took a gun out of the bag. Macias drove near 30th Street. Defendant said he asked what Macias
was doing and Macias told him to stop being a "p***y." When they saw one or two
"gangbangers" on the sidewalk, Macias handed defendant the gun and said, "come on p***y."
Macias slowed down the van and defendant fired about four shots. Macias started to drive
toward Latin King territory, but on the way, they saw a couple of men and one of the them made
a gesture of disrespect to the Latin Kings. Macias told defendant to shoot them again, defendant
then fired two or three shots. Macias then drove back to the Latin King neighborhood. He
dropped defendant off and defendant left the gun with Macias.
¶ 11 Lionel Medina testified at trial and admitted he was a member of the Two-Six gang. On
March 19, 2007, he was near 28th Street and Kildare when he saw a two-tone blue and gray van
at a stop sign. The passenger pulled out a gun and fired. Medina was shot, but survived.
Medina was not able to make any identifications in two lineups.
¶ 12 Leonardo Gonzalez testified that on March 19, 2007, he was walking with Victor Casillas
on 30th Street when they heard gunshots. Both Gonzalez and Casillas were members of the
Two-Six gang. They continued walking until he heard a vehicle behind them. He saw a blue
and white van. According to Gonzalez, Casillas made a gang sign disrespectful to the Latin
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No. 1-12-1786
Kings. The passenger in the van fired two shots. Casillas started to run and Gonzalez fell down.
He then saw that Casillas had been shot. Casillas fell down near 30th Street and Karlov Avenue.
¶ 13 Gonzalez was unable to make an in-court identification. Gonzalez testified that he
viewed a lineup in May 2007, but he equivocated on whom he identified. He said he identified
Casillas's killer, but did not know if he identified defendant. Gonzalez admitted that he gave a
statement to an ASA in May 2007. Two photographs were attached to the statement. One
showed Casillas with the phrase "Lil Bonez Rotsk" written on it, which was disrespectful to
Casillas. The second photo was of a Latin King with the caption "Little Rowdy." Gonzalez did
not remember if he identified "Little Rowdy" as the shooter. The State later called the ASA who
took the statement and she testified that Gonzalez identified defendant as the shooter.
¶ 14 Gonzalez also could not recall his grand jury testimony. The State later called the ASA
who presented Gonzalez at the grand jury. She testified that Gonzalez identified defendant as the
shooter.
¶ 15 On cross-examination, Gonzalez stated that he did not get a good look at the people in the
van because he was focused on the gun. Gonzalez testified that after the shooting, Antonio
Casillas, Victor Casillas's brother and also a Two-Six member, showed him a photo with the
caption "Little Rowdy Drake Two-Six." He said Antonio told him to identify the person in the
photograph as the shooter. On redirect, Gonzalez maintained that he only identified defendant
because Antonio showed him the photograph.
¶ 16 Antonio Casillas testified that he was the older brother of Victor Casillas. Antonio stated
that he had viewed a MySpace page and saw pictures of his brother and defendant. He said he
recognized defendant as "Little Rowdy." He said he then looked through a Farragut High School
yearbook and found "Little Rowdy" under defendant's name. Antonio viewed the MySpace
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No. 1-12-1786
pages with the help of his cousin because Antonio did not have a MySpace account. Antonio
was given permission to use the password for the account of a friend of Antonio's cousin. He
used this account to send a friend request to "Little Rowdy." When the friend request was
accepted, he was able to view photographs. Antonio testified that he approached a police officer
at his brother's funeral with defendant's name. A couple days later, two detectives came to his
house and Antonio showed the detectives the MySpace page.
¶ 17 Antonio was shown three photographs from the MySpace page. The first was a picture of
defendant making gang signs with the caption "Lil Rowdy." The second was a photo of Casillas
with a caption "Lil Bonez Rotsk," which Antonio testified meant "bragging about how [his]
brother is dead." The third photo was another picture of Casillas with the caption, "Lil Bonez
Rotsk!! hahaha 1 less Avers…hahaha." Antonio stated this caption was laughing and bragging
about his brother's death.
¶ 18 On cross-examination, Antonio admitted that nothing on MySpace identified defendant
as "Little Rowdy." Antonio admitted he used to be a member of the Two-Six gang but had quit.
He said he used the most recent yearbook, which was maybe the 2006 or 2007 Farragut High
School yearbook, to make the connection. 1 Antonio denied telling Gonzalez to identify
defendant as the shooter.
¶ 19 Lorena Aguilar and Elizabeth Hernandez each testified that at around 8 to 8:30 p.m. on
March 19, 2007, they were walking on east on 30th Street, between Tripp Avenue and Kildare
Avenue, when they heard gunshots. They looked behind them and saw a two-tone Astro van.
When the van passed them, Aguilar stated that she saw two Hispanic males in their twenties and
Hernandez said she also saw two Hispanic males in their twenties or older. Aguilar described
1
Defendant's presentence investigation stated that he graduated eighth grade in 2002 and he withdrew from
Farragut High School a couple months into his freshman year.
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No. 1-12-1786
the driver as wearing a dark sweatshirt and the passenger was wearing a white t-shirt and had
short hair. Hernandez corroborated Aguilar's description. After the van passed them and was no
longer in their view, they heard more gunshots. They ran toward the gunshots and saw a group
near a person who had been shot. Both women separately viewed a photo array, but testified that
they could not identify the shooter. Aguilar denied that she made a tentative identification. Both
women also separately viewed a lineup, but did not make an identification.
¶ 20 Lizette Martinez testified that around 8 or 8:30 p.m. on March 19, 2007, she was walking
her dog eastward on 30th Street with her neighbor, Rita Serrano, when she heard four gunshots
coming from behind her. She looked and saw a blue and gray Astro van head east on 30th on to
Kedvale. When the van passed her, Martinez saw two males. She said the passenger was
wearing a white t-shirt. She heard two more gunshots. Martinez viewed a photo array and did
not make an identification. She later viewed a lineup, but did not make an identification.
¶ 21 Rita Serrano testified at trial for the defense. Her testimony corroborated Martinez's
except that she described the passenger in the van as a bald Hispanic male wearing a white t-
shirt. Serrano did not make an identification in either a photo array or a lineup.
¶ 22 The parties stipulated that six cartridge cases were recovered at the scenes of the
shootings, but no fingerprints were recovered from the casings.
¶ 23 Following deliberations, the jury found defendant guilty of the first degree murder of
Casillas and the attempted murder and aggravated battery with a firearm of Medina. The trial
court subsequently sentenced defendant a term of 29 years for the first degree murder conviction
with an additional 25-year firearm enhancement, 20 years for the attempted murder conviction,
and 6 years for the aggravated battery conviction, to be served consecutively. Defendant
received a total sentence of 80 years.
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No. 1-12-1786
¶ 24 This appeal followed.
¶ 25 On appeal, defendant first argues that the trial court erred in denying his motion to
suppress his July statements to police and the ASA. Specifically, defendant contends that his
statements were taken in violation of his right to remain silent and his right to counsel. He also
asserts that the statements were involuntary and his will was overborne. We first look at the
circumstances in both the May and July interrogations in relevant detail.
¶ 26 On May 24, 2007, the police arrested defendant and placed him in a locked interrogation
room at Area 4 around 9:45 p.m. Defendant was 17 years old at the time of his arrest.
Defendant was held in the interrogation room until approximately 11:15 p.m. on May 26, 2007.
We note that the transcripts of all interrogations are taken from a video camera located in the
corner of the interrogation room. The transcripts contain several notations that the dialogue is
"inaudible."
¶ 27 Defendant was repeatedly interrogated by two detectives over those two days. The
detectives used excessive amounts of profanity during the interrogation. The detectives
misinformed defendant that if he had not planned to specifically shoot Casillas, then it was not
first degree murder and he could receive a lesser sentence and regain his life. The detectives also
repeatedly told defendant that he had been identified in multiple lineups and they had six
witnesses. However, defendant had only been identified in one lineup. The five other
occurrence witnesses were unable to identify defendant. The detectives also frequently referred
to the evidence in their possession, such as fingerprints and other evidence from the van. No
evidence of this kind was presented at trial.
¶ 28 At around 8 p.m. on May 25, 2007, defendant explicitly requested to speak with an
attorney. The detectives asked defendant if he wanted to end questioning to get an attorney,
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No. 1-12-1786
which defendant said he did. The detectives ended questioning at that time. However, at
approximately 1:15 p.m. on May 26, 2007, the detectives reinitiated interrogation with defendant
without an attorney present.
¶ 29 During the May 26 interrogation, defendant made incriminating statements. He initially
said he was in the van during the shooting, but did not participate. The detectives told defendant
he was lying. Defendant then told them that he was driving the van and was unaware that
codefendant Robert Macias had a gun. Again the detectives told defendant he was lying. At
approximately 11 p.m., defendant confessed that he was the shooter. Following the
interrogation, an ASA reviewed the case and declined to press charges. Defendant was released
in the early morning hours of May 27, 2007.
¶ 30 On June 2, 2007, Macias was arrested in connection with the shootings. During his
interrogation, Macias gave statements incriminating defendant as the shooter. Based on this
information, the police arrested defendant a second time on July 14, 2007.
¶ 31 At approximately 6:15 p.m. on July 14, 2007, defendant was again placed in an
interrogation room at Area 4. One of the detectives, who also participated in defendant's initial
interrogation, gave defendant his Miranda rights and questioned defendant as follows.
"DETECTIVE: You're here for the same shooting death of
Victor Casillas, March 19th, 30th and Karlov, right? I got to tell
you what your rights are. You understand you have the right to
remain silent. Do you understand that? You got to say it out loud.
DEFENDANT: Yes.
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No. 1-12-1786
DETECTIVE: You understand that anything you say can
and will be used against you in a court of law. You understand
that?
DEFENDANT: Yes.
DETECTIVE: Okay. You understand that you have the
right to have an attorney with you when I talk to you? Do you
understand that?
DEFENDANT: Yes.
DETECTIVE: You understand that if you can't afford an
attorney, the state will give you one free of charge. Do you
understand that?
DEFENDANT: Yes.
DETECTIVE: Okay. You've been here before, right?
DEFENDANT: Yeah.
DETECTIVE: Okay, Uh–Robert Macias has been in here.
Robert has been saying some things about you—
DEFENDANT: Um-huh.
DETECTIVE: -- and we wanted to talk to you about them.
You want to talk to us about that?
DEFENDANT: Not really. No.
DETECTIVE: Well, I mean, he's, you know, he's saying
thing that aren't good about you. That's why we And
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No. 1-12-1786
basically he's saying that you were the one who produced the gun
for that shooting.
DEFENDANT: Um--"
¶ 32 The detective continued to ask questions, and when he asked defendant if he had
anything to say about the gun, defendant shook his head indicating no. The detective followed
that and asked, "you don't know something about the gun?" Defendant answered no. A few
minutes later, the detective said that he wanted to hear what defendant has "to say about it."
Defendant responded that he "ain't gonna say nothing about nothing."
¶ 33 The detectives left defendant alone for about 15 minutes and returned around 6:35 p.m.
Shortly after they begin questioning defendant again, the following dialogue took place.
"DEFENDANT: When is the attorney going to come?
DETECTIVE: The [S]tate's [A]ttorney?
DEFENDANT: Yeah.
DETECTIVE: I got to call them. talk to you.
DEFENDANT: You gotta call them again?
DETECTIVE: Yup.
DEFENDANT: I thought you said that if I said if I wanted
a lawyer, that—that, uh, I don't have to talk to you or something
like that.
DETECTIVE: Well, that's one of your rights that I read,
yeah. Is that what–I mean–
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No. 1-12-1786
DEFENDANT: No, I'm saying that the other thing you
said that–or when she told me keep me here for how
many hours?
DETECTIVE: We can hold you for up to 48 hours.
DEFENDANT: And that's already another 48 hours
already you huh?
DETECTIVE: It's the same as any time. It's not up to me.
Last time you walked out of here a free man. We wanted to talk to
you again, because, you know, he says you're the one who gets the
gun."
¶ 34 The detectives then continued to question defendant, but defendant's responses were
minimal. Eventually the detectives asked defendant if he wanted to see Macias's statement, and
defendant stated that he did. The detectives and defendant then left the room to view the
statement. They returned approximately 10 minutes later. Over the next 30 minutes, defendant
participated in the interrogation and answered the detectives' questions. During this
interrogation, defendant admitted to being the shooter on March 19, 2007. A few hours later,
defendant spoke with an ASA and gave a videotaped statement in which he confessed to
shooting the victims.
¶ 35 In reviewing a trial court's ruling on a motion to suppress, this court applies a de novo
standard of review. People v. Sorenson, 196 Ill. 2d 425, 431 (2001); see also Ornelas v. United
States, 517 U.S. 690, 699 (1996). However, findings of historical fact are reviewed only for
clear error and the reviewing court must give due weight to inferences drawn from those facts by
the fact finder. Ornelas, 517 U.S. at 699. Accordingly, we will accord great deference to the
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No. 1-12-1786
trial court's factual findings, and we will reverse those findings only if they are against the
manifest weight of the evidence; however, we will review de novo the ultimate question of the
defendant's legal challenge to the denial of his motion to suppress. Sorenson, 196 Ill. 2d at 431.
However, in this case, the trial court did not hear any live testimony, but instead viewed the
recordings of defendant's interrogations. Because there was no live testimony presented and we
are reviewing the same evidence the trial court reviewed, we conclude our review of the trial
court's ruling on the motion to suppress is de novo.
¶ 36 "Where a defendant challenges the admissibility of his confession through a motion to
suppress, the State has the burden of proving the confession was voluntary by a preponderance of
the evidence." People v. Braggs, 209 Ill. 2d 492, 505 (2003) (citing 725 ILCS 5/114-11(d)
(West 2000)).
¶ 37 "The concept of voluntariness includes proof that the defendant made a knowing and
intelligent waiver of his privilege against self-incrimination and his right to counsel." Id. "To
protect an individual's right not to be a witness against himself, found in both the United States
and Illinois Constitutions (see U.S. Const. amend. V; Ill. Const. 1970 art. I, § 10), interrogation
must cease once the individual indicates in any manner and at any time prior to or during a
custodial interrogation that he wishes to remain silent. [Citation.]" People v. Hernandez, 362 Ill.
App. 3d 779, 785 (2005). " '[A]ny statement taken after the person invokes his privilege cannot
be other than the product of compulsion, subtle or otherwise.' " Id. (quoting Miranda v. Arizona,
384 U.S. 436, 474 (1966)). A defendant may invoke his or her right to silence either verbally or
through nonverbal conduct that clearly indicates a desire to end questioning. Id. (citing People v.
Nielson, 187 Ill. 2d 271, 287 (1999) (finding that the defendant placing his hands over his ears,
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No. 1-12-1786
turning his head, and saying, " 'nah nah nah,' " was sufficient to invoke right to remain silent)).
"If verbal, the individual's demand to end the interrogation must be specific." Id.¶ 38 The United States Supreme Court in Smith v. Illinois, 469 U.S. 91 (1984), considered
whether a defendant's statements subsequent to his request for an attorney rendered the
invocation ambiguous and equivocal. The Court held that "an accused's postrequest responses to
further interrogation may not be used to cast retrospective doubt on the clarity of the initial
request itself. Such subsequent statements are relevant only to the distinct question of waiver."
(Emphasis omitted.) Id. at 100. "With respect to the waiver inquiry, we accordingly have
emphasized that a valid waiver 'cannot be established by showing only that [the accused]
responded to further police-initiated custodial interrogation.' " Id. at 98 (quoting Edwards v.
Arizona, 451 U.S. 477, 484 (1981)). While Smith considered subsequent statements in the
context of request for counsel, this reasoning is equally applicable to a defendant's invocation of
his right to remain silent. Moreover, we find that the invocation of a right to remain silent should
not be based on how an interrogator phrases his or her questions to the defendant.
¶ 39 In Hernandez, the defendant agreed to give a videotaped statement to an assistant State's
Attorney. After the attorney outlined the defendant's Miranda rights, she asked,
" 'Understanding these rights, do you wish to talk to us now?' " The defendant responded, " 'No,
not no more.' " Hernandez, 362 Ill. App. 3d at 781-82. The attorney then asked, " 'Do you wish
to talk to us now about what we previously spoken to? [sic] ' " and the defendant answered, "
'Yes.' " He went on to discuss his role in a murder. The defendant filed a motion to quash his
arrest and suppress evidence under several bases, but did not argue that he invoked his right to
remain silent. The trial court denied the motion. Id. at 782-84.
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No. 1-12-1786
¶ 40 On appeal, the defendant argued that the trial court erred in not suppressing his
videotaped statement because he invoked his right to remain silent and his trial counsel was
ineffective for failing to raise that basis in the motion before the trial court. The reviewing court
first considered whether the defendant invoked his right to remain silent. Id. at 784-85.
¶ 41 The Hernandez court found that the defendant had invoked his right to silence when after
being informed of his rights and asked if he wished to speak with the prosecutor, the defendant
responded, " 'No, not no more.' " Id. at 785-86.
"Though it is possible that defendant was being facetious, without
the videotape it is impossible to tell. From the verbatim transcript
alone, it appears that while defendant had been willing to talk to
the police and prosecutor about his role in [the victim's] murder,
making several incriminating statements prior to his videotaped
statement, i.e., to [a detective] after his arrest and to [the
prosecutor] just before the videotaping began, he decided during
the videotaping that he no longer wished to speak." Id. at 785.
¶ 42 The court found that "the language defendant used here to invoke his right to silence was
clear and unequivocal, unlike language from other cases found to be too ambiguous to
sufficiently do so. See People v. Milner, 123 Ill. App. 3d 656, 658 (1984) (holding the defendant
did not trigger his right to silence when he said ' "I'm tired, I can't answer no more" '); People v.
Aldridge, 68 Ill. App. 3d 181, 186-87 (1979) (finding the defendant did not properly invoke his
right to silence when he told police ' "I think you got enough," ' ' "Okay now have you got
enough," ' ' "there's nothing I want to add to it," ' and ' "you've got everything you need here
now" '); People v. Troutman, 51 Ill. App. 3d 342, 344 (1977) (finding the defendant's comment
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No. 1-12-1786
that she was not going to make a confession was not ' "specific enough to constitute a demand
that questioning cease" '); People v. Pierce, 223 Ill. App. 3d 423, 430-31 (1991) (no proper
invocation when the defendant stated, ' "If I don't want to answer any more questions, then what
happens," ' ' "You got all the stuff there right now. You don't need no more really," ' and ' "I told
you, though, once that ..." '; [citation]." Id.¶ 43 The court in Hernandez held that the defendant's response was a clear and unequivocal
invocation of his right to remain silent. The court then concluded that the interrogators failed to
scrupulously honor his invocation and that his trial counsel was ineffective for failing to raise the
argument that the defendant invoked his right to remain silent in the trial court. Id. at 786-89.
¶ 44 Similar to the invocation in Hernandez, after giving defendant his rights, the detective
told defendant that a codefendant had made statements against defendant and asked if defendant
wanted to talk to the detectives about that, and defendant responded, " 'Not really. No.' " The
detective did not cease interrogation at that point, but continued to tell defendant that the
codefendant has made incriminating statements about defendant and to ask questions. Moreover,
defendant continued to voice his desire to remain silent. A short time later, defendant shook his
head indicating no and said "no," when asked if he had anything to say about the gun. Less than
three minutes later, defendant said he was not "gonna say nothing about nothing." The detective
continued to question defendant, telling him that they just wanted to get his "side of the story."
¶ 45 In People v. Brown, 171 Ill. App. 3d 993 (1988), the defendant was being questioned by
an assistant State's Attorney. The attorney outlined each of the defendant's rights and then the
following dialogue occurred.
" 'Q. All right. Understanding these rights do you wish to
talk to us now?
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No. 1-12-1786
A. No.
Q. Pardon me?
A. I didn't understand.
Q. Understanding these rights, do you wish to talk to us
now?
A. Well, I already told you what happened.
Q. All right. After you told me before about what happened
I informed you that I was going to call a court reporter and we
were going to take it down in writing, is that correct?
A. Yes, sir.
Q. Now I've advised you of your rights. Understanding
these rights do you wish to talk to us now about the incident
involved on the 30th of June 1983 involving the shooting death of
Renaldo [sic] Reyes?
A. Yes.' " (Emphasis omitted.) Brown, 171 Ill. App. 3d at
995.
¶ 46 The defendant contended on appeal that the trial court erred in denying his motion to
suppress because his response of " 'No' " indicated an invocation of his right to remain silent and
interrogation should have ceased. Id. Similar to the State's argument in the present case, the
State maintained that the defendant did not invoke his right to remain silent because "defendant's
'No' answer was not a clear and unambiguous invocation of the right and, instead, his answer
'simply exhibited a misunderstanding as to the wording of the question and was properly
clarified in the subsequent series of questions.' " Id. at 996.
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No. 1-12-1786
¶ 47 The reviewing court rejected the State's argument that a "No" response was ambiguous.
"The fact that [the defendant's] oral response was not accompanied by a stronger oral statement
or physical manifestations does not make his response of 'No' any less decisive or clear. In fact,
because the questioning continued without any passage of time, defendant was precluded from
expanding on his response if he had any intention of doing so." Id. at 997.
"We further observe that the State's assertion that
defendant's response of 'No' resulted from a misunderstanding of
the preceding question is merely a possible, as well as a
convenient, interpretation based upon the State's own 'clarification'
through a series of subsequent questions which were amenable to
the possibility of manipulation of the wording of those questions to
obtain the desired 'clarification.' The fact remains, however, that
defendant stated he did not want to talk to the assistant State's
Attorney and clearly indicated so based on his responsive 'No' to
the State's corresponding question. Questioning should have
ceased at that point; in order to scrupulously honor defendant's
invocation of the right, the State, instead of speculating on what it
perceived to be the reason for defendant's answer, should have
entertained the idea that defendant was in fact invoking his right to
remain silent. Accordingly, because defendant's invocation of his
right to remain silent was not scrupulously honored, we hold that
his statement was inadmissible at trial." Id. at 998.
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No. 1-12-1786
¶ 48 In People v. R.C., 108 Ill. 2d 349 (1985), the supreme court considered whether the minor
defendant's right to remain silent was violated when the police continued to question the
defendant after he invoked the right. There, the defendant was taken into custody in relation to
residential burglary and advised of his Miranda rights by a juvenile officer. After being advised
of his rights, the defendant stated that he did not wish to speak with the officer. The officer
responded that the defendant had that right, but he had been identified by a codefendant and the
arresting officer. The officer also asked about jewelry taken during the burglary. The defendant
asked if returning the jewelry would make a difference and was told only in restitution. The
defendant then gave a statement admitting his participation. Id. at 352.
¶ 49 The supreme court found that the defendant's invocation of his right to remain silent had
not been scrupulously honored. "Rather than terminating the interrogation immediately, which is
what Miranda requires, the officer told the defendant that he had been identified. This was an
obvious effort to persuade [the defendant] to make a statement." Id. at 354.
¶ 50 The State cites the decision in People v. Kronenberger, 2014 IL App (1st) 110231, to
support its position that defendant did not invoke his right to remain silent. We find
Kronenberger to be distinguishable.
¶ 51 In that case, the defendant argued on appeal that his videotaped confession should have
been suppressed because he invoked his right to remain silent which the police failed to
scrupulously honor. The defendant pointed to two instances during his interrogation in which he
invoked his right to silence. The first occurred during an interrogation in which the defendant
had been advised of his Miranda rights and had "at times answered the detectives' questions, at
times did not answer, and at times lamented on the dire circumstances in which he now found
himself." Id. ¶ 34. The detective asked the defendant if he wanted to keep talking to the
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No. 1-12-1786
detectives, the defendant "did not verbalize a response" and the detective urged the defendant to
answer yes or no. Id. The detective then asked, " 'You don't want to talk to me anymore?' and
'We done talking?' to which the defendant said nothing." Id. The defendant argued on appeal
that he shook his head in response to those questions to indicate that he was done talking.
Id. ¶ 35.
¶ 52 The reviewing court stated that it carefully viewed the videotape multiple times and "saw
that the defendant made some very slight movements of his head but even after repeated
viewing, it is unclear whether he actually nodded or shook his head in response to these
questions." Id. "We cannot conclude that the defendant's head movements clearly indicated a
desire to end all questioning. It certainly did not rise to the level of an unambiguous and
unequivocal invocation of the right to silence." Id.
¶ 53 The second instance cited by the defendant occurred approximately an hour later. The
detective reentered the interrogation room and asked the defendant " 'Are you done talking to
me?' " and " 'Are you done talking to all of us?' " and the defendant responded, " 'Yeah.' "
Id. ¶ 36. The reviewing court, after viewing this portion of the videotape, concluded that "the
defendant's response, without specificity, did not indicate a desire to end all questioning so as to
rise to the level of an unambiguous and unequivocal invocation of the right to silence." Id. ¶ 37.
¶ 54 Further, the court in Kronenberger found that the defendant later unambiguously invoked
his right to counsel, which the police scrupulously honored, but the defendant later reinitiated the
conversation and wanted to speak with the detectives. Id. ¶ 40.
"Based on this evidence, we find that, even had the defendant
unambiguously and unequivocally invoked his right to silence at
12:57 a.m. and 2:07 a.m., and the police failed to scrupulously
20
No. 1-12-1786
honor those requests, the later invocation of his right to counsel
was scrupulously honored by the police and the subsequent
videotaped confession was admissible, where it was made after the
defendant had been readvised of his rights and he had reinitiated
conversation with the police." Id.
¶ 55 The circumstances in the present case differ from Kronenberger. The State contends that
defendant's initial response of "Not really. No." was limited only to his desire to talk about
Macias's statement. We disagree. This response was given immediately following the giving of
Miranda rights and was the first question posed thereafter asking defendant if he wanted to speak
with the detectives. The detectives continued to mention Macias's statement implicating
defendant. Defendant makes a comment suggesting he has had issues with the Latin Kings, but
the inaudible moments make it difficult to fully discern his comments. The detective then says
"we want to talk to you about this thing" and asks if defendant had anything to say about the gun,
to which defendant shook his head indicating no. The detective then asked, "you don't know
something about the gun?" and defendant says " No." Further, even if defendant's
initial response was unclear that he did not wish to speak with the detectives at all, his later
comment that he "ain't gonna say nothing about nothing," unequivocally showed that defendant
had invoked his right to remain silent.
¶ 56 While the State and the trial court characterize defendant as "engaging in the
conversation with the detectives," we disagree. Our review of the videotaped interrogation
disclosed in excess of 30 pauses between questions asked by the detective and any response from
defendant. During the initial interrogation, defendant does not "engage" in the conversation. He
was hesitant and does not make any statements implicating himself until two hours later, after the
21
No. 1-12-1786
videotaped recording suggested that he left the interrogation room to view Macias's statement.
We find the circumstances of this case to be more analogous to Hernandez, Brown, and R.C. than
Kronenberger.
¶ 57 After viewing the videotaped interrogation and reviewing the transcript of the
interrogation, we find that defendant invoked his right to remain silent and the detectives should
have ceased all questioning after asking defendant if he wanted to talk to them and defendant
responded, "Not really. No." This response was a clear and unequivocal response that defendant
did not wish to waive his right to remain silent. See Hernandez, 362 Ill. App. 3d at 785-86;
Brown, 171 Ill. App. 3d at 998; R.C., 108 Ill. 2d at 352-53. Defendant's invocation was
unequivocal and unambiguous and was not limited to his desire to comment on Macias's
statements.
¶ 58 Since we have found that defendant properly invoked his right to silence, we turn to
whether the trial court could properly consider defendant's statements that followed his
invocation. "Statements made after the invocation of the right to silence are admissible only if
the interrogators scrupulously honored the defendant's right to cut off questioning." Hernandez,
362 Ill. App. 3d at 786; see also R.C., 108 Ill. 2d at 353.
"In deciding whether that right was so honored, courts should
consider whether (1) the interrogator immediately halted the initial
interrogation after the defendant invoked his right to remain silent;
(2) a significant amount of time elapsed between the
interrogations; (3) the defendant was 're-Mirandized' before the
second interrogation; and (4) the second interrogation addressed a
crime different from that of the first interrogation (though the fact
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No. 1-12-1786
that the same crime was discussed during both interrogations does
not preclude a finding that the defendant's right to silence was
scrupulously honored)." Hernandez, 362 Ill. App. 3d at 786 (citing
Nielson, 187 Ill. 2d at 287).
See also Michigan v. Mosley, 423 U.S. 96, 103-04 (1975).
¶ 59 Here, defendant's invocation of his right to remain silent was not scrupulously honored.
First, the detectives did not immediately halt interrogation. Rather, they continued to discuss
codefendant Macias's statements and asked defendant for his side of the story. The supreme
court in R.C. noted that telling the defendant he had been identified after the defendant had
invoked his right to silence "was an obvious effort to persuade R.C. to make a statement." R.C.,
108 Ill. 2d at 354. Next, no time elapsed between defendant's invocation and the continued
questioning nor was defendant given new Miranda warnings. Finally, the interrogation only
focused on the same crime, the shootings that occurred on March 19, 2007. Since defendant's
invocation of his right to remain silent was not scrupulously honored, any statements made after
that point were inadmissible.
¶ 60 The same test must also be applied to determine whether defendant's later statements to
an ASA were inadmissible. As we previously held, the detectives did not halt the interrogation
when defendant invoked his right to remain silent. Instead, the detectives continued to
interrogate defendant for another two hours until defendant confessed to being the shooter. After
his confession, defendant remained in the interrogation room.
¶ 61 The ASA arrived and interviewed defendant approximately four hours after the
interrogation with the detectives ended. We note that the Supreme Court in Mosley found that a
two-hour break between questioning was a sufficient passage of time to satisfy the second prong.
23
No. 1-12-1786
See Mosley, 423 U.S. at 104-06. When the ASA began the interview, he outlined defendant's
Miranda rights and then engaged in questioning defendant about the shootings.
¶ 62 The State cannot satisfy the first and fourth prongs regarding the subsequent statement
made to the ASA. The detectives' failure to cease interrogation once defendant invoked his right
to remain silent again precludes admissibility. Further, though the fourth prong alone does not
necessarily preclude a finding that an invocation was scrupulously honored, the subject of both
interrogations was the March 19 shootings. The continued interrogation regarding the same
crime after the detectives failed to stop interrogation shows that defendant's right to remain silent
was not scrupulously honored. While the passage of time and fresh Miranda warnings before the
ASA interview fulfill the second and third prongs, it is not sufficient to show that defendant's
invocation of his right to remain silent was scrupulously honored. Accordingly, defendant's
statement to ASA Sheppard was also inadmissible following defendant's invocation of his right
to remain silent.
¶ 63 Since we have concluded that defendant invoked his right to remain silent and all
subsequent statements were inadmissible, we need not reach the applicability of Maryland v.
Shatzer, 559 U.S. 98 (2010), to defendant's prior request for an attorney, defendant's argument
that he invoked his right to counsel, or whether defendant's confession was involuntary. We
reverse the trial court's denial of defendant's motion to suppress his July statements and remand
for retrial.
¶ 64 Additionally, we find that there is no double jeopardy impediment to a new trial. After
reviewing the record, we conclude that the evidence was sufficient to prove defendant guilty
beyond a reasonable doubt. However, in our finding, we reach no conclusion as to defendant's
guilt that would be binding on retrial. People v. Naylor, 229 Ill. 2d 584, 610-11 (2008).
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No. 1-12-1786
¶ 65 Since we are remanding for a new trial, we need not reach defendant's argument that the
trial court erred when it barred defendant from introducing his May statements to explain why he
confessed. We reach defendant's remaining arguments on appeal only to the extent that the
issues may recur on retrial.
¶ 66 Defendant contends that the trial court erred when it admitted prejudicial photos from a
MySpace page without proper foundation or authentication. The State maintains that the photos
were properly admitted as part of the police course of investigation and were not used to
establish defendant's guilt.
¶ 67 Prior to trial, defendant filed a motion to exclude evidence of MySpace photographs
depicting either defendant or Casillas, based on lack of foundation and prejudice. Defendant
contended that only one MySpace photograph should be admitted, a photograph of defendant in
which he identified himself. He asked for all other photographs from MySpace to be barred.
¶ 68 At the hearing, trial counsel argued that "no one is going to be able to testify whose My
Space page they actually came from, or how the detectives were even allowed onto that website."
Counsel asserted there was "no way to lay a foundation for this." The State conceded that it
would not be able to lay a foundation as to who posted the photographs or whose MySpace page
it was, but sought to admit the photographs to show the course of the police investigation. The
trial court allowed the admission of two photos at trial, one of defendant with the phrase "King
Little Rowdy" and one of Casillas with the writing "Little Bones ROTSK." The court found that
the photographs were not prejudicial and were relevant to the police's course of investigation.
¶ 69 The photographs were admitted at trial during the testimony of Casillas's brother
Antonio. As previously summarized, Antonio testified that he viewed a MySpace page and saw
pictures of his brother and defendant. He said he recognized defendant as "Little Rowdy." He
25
No. 1-12-1786
said he then looked through a Farragut High School yearbook and found "Little Rowdy" under
defendant's name. Antonio viewed the MySpace pages with the help of his cousin because
Antonio did not have a MySpace account. Antonio was given permission to use and the
password for the account of a friend of Antonio's cousin. He used this account to send a friend
request to "Little Rowdy." When the friend request was accepted, he was able to view
photographs. Antonio testified that he approached a police officer at his brother's funeral with
defendant's name. A couple days later, two detectives came to his house and Antonio showed
the detectives the MySpace page.
¶ 70 Antonio was shown three photographs from the MySpace page. The first was a picture of
defendant making gang signs with the caption "Lil Rowdy." The second was a photo of Casillas
with a caption "Lil Bonez Rotsk," which Antonio testified meant "bragging about how [his]
brother is dead." The third photo was another picture of Casillas with the caption, "Lil Bonez
Rotsk!! hahaha 1 less Avers…hahaha." Antonio stated this caption was laughing and bragging
about his brother's death. Also at trial, Gonzalez testified that he identified defendant in a lineup
because Antonio showed him a MySpace photograph of defendant and told him to identify
defendant.
¶ 71 "The admission of evidence is within the sound discretion of a trial court, and a
reviewing court will not reverse the trial court absent a showing of an abuse of that discretion."
People v. Becker, 239 Ill. 2d 215, 234 (2010). An abuse of discretion occurs where the trial
court's decision is arbitrary, fanciful or unreasonable or where no reasonable person would agree
with the position adopted by the trial court. Id.¶ 72 "In general, the consequential steps of an investigation are relevant to explaining the
State's case to a jury." People v. Thompson, 2014 IL App (5th) 120079, ¶ 45 (citing People v.
26
No. 1-12-1786
Johnson, 116 Ill. 2d 13, 24 (1987)). "In particular, the State must be allowed to explain why a
previously unidentified defendant became a suspect." Id. "Silence as to this point would leave
open the question of why, of all the people in the world, the police arrested defendant." Id."This would invite speculation and baseless innuendo that the investigation lacked rigor." Id.¶ 73 Here, the MySpace photographs were relevant at trial to establish the course of the police
investigation and how defendant was identified as a suspect. Nevertheless, defendant asserts that
the photographs were not properly authenticated to be admitted at trial.
¶ 74 Under the Illinois Rules of Evidence, "[t]he requirement of authentication or
identification as a condition precedent to admissibility is satisfied by evidence sufficient to
support a finding that the matter in question is what its proponent claims." Ill. R. Evid. R. 901(a)
(eff. Jan. 1, 2011). Rule 901(b) contains a nonexhaustive list of illustrations to authenticate a
piece of evidence. One example from this list is testimony from a witness with knowledge that a
matter is what it is claimed to be. Ill. R. Evid. R. 901(b)(1) (eff. Jan. 1, 2011).
¶ 75 Here, the MySpace photographs were admitted to show the course of the police
investigation. Antonio Casillas testified about how he obtained access to the photographs from
the account of a friend of his cousin. His testimony authenticated that the photographs were
what they were claimed to be, something used by the police during their investigation to identify
defendant as a suspect. The photographs were not used to establish defendant's guilt.
¶ 76 Defendant contends that the State did use the MySpace photographs to assert defendant's
guilt. To support this contention, defendant quotes a portion of the State's closing argument in
which the prosecutor made the following statements, over objection.
"PROSECUTOR: We know that the defendant bragged
about it afterwards, he bragged about killing Little Bones.
27
No. 1-12-1786
DEFENSE COUNSEL: Objection, Judge.
TRIAL COURT: Overruled. Ladies and gentlemen of the
jury, you've heard the arguments and heard the evidence. Use your
recollection.
PROSECUTOR: He bragged about killing Little Bones
which we know is Victor Casillas."
¶ 77 This portion of the argument does not reference MySpace or any photographs as the
source of defendant bragging about the shooting. Further, as the State points out, one of the
detectives testified at trial that someone known as "Little Rowdy" was bragging about the murder
at Farragut High School. Since the argument does not refer to the MySpace photographs, the
argument was a proper comment based on evidence at trial.
¶ 78 Further, as the State points out, in rebuttal closing argument, the prosecutor specifically
discussed the relevance of the MySpace photographs:
"Antonio Casillas was not on trial. The defendant, as a
matter of fact, isn't on trial for even being named Lil' Rowdy. He
isn't on trial for being in some Farragut yearbook. He isn't on trial
for having a MySpace page. He isn't on trial for posing with girls
and drinking Corona. He isn't on trial for being a Latin King. He's
on trial for shooting and killing Victor Casillas. He's on trial for
injuring Leonel [sic] Medina.
The relevance of those MySpace photographs was that
Antonio Casillas had those MySpace photographs. He looked at
the Farragut yearbook. He got the name Oscar Flores. That
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No. 1-12-1786
information was used by police in their investigation. That
information was used so that Oscar Flores's picture could be put
into photo arrays.
He doesn't sit before you because he's a Latin King. Now,
his actions are the reason why he sits before you. He doesn't sit
before you because of that MySpace page. So the fact that there
isn't a yearbook that you have to take back there, the fact that there
isn't computer that you have to take back there, is totally irrelevant
to the defendant's guilt in this case."
¶ 79 The prosecutor in rebuttal described the relevance of the MySpace photographs, and
made it clear to the jury that the photographs were not evidence of guilt. We conclude that the
trial court did not abuse its discretion in admitting the MySpace photographs for the limited
purpose as part of the course of police investigation. However, the captions to the photos are
prejudicial to defendant and should be redacted. It appears based upon the record before us that
the State cannot prove who wrote the captions, which appear to be bragging about the victim's
death, and could be attributed to defendant as a form of a confession. Although the MySpace
photographs may admitted as part of the police investigation, since the State cannot show who
wrote the prejudicial captions, the captions should not be admitted at trial.
¶ 80 Finally, defendant has asserted that his trial counsel was ineffective for failing to object
to evidence that defendant's photograph was in a Chicago police database and he had previously
been arrested. While we do not reach need to reach the question of whether trial counsel was
ineffective, we do observe that evidence of a mug shot is not admissible and should be avoided
on retrial. "When identification is a material issue at trial, testimony relating the use of mug
29
No. 1-12-1786
shots in an investigation may be introduced to show how a defendant was initially linked to the
commission of an offense. However, mug shot evidence tending to inform the jury of a
defendant's commission of other, unrelated criminal acts should not be admitted." People v.
Nelson, 193 Ill. 2d 216, 224 (2000). As previously discussed, defendant's identification was
linked to the MySpace photographs. Testimony relating to defendant's photograph in the police
database should not be admitted.
¶ 81 Based on the foregoing reasons, we reverse the decision of the circuit court of Cook
County and remand for a new trial in accordance with this decision.
¶ 82 Reversed and remanded.
30