Petition for Writ of Certiorari — Jermaine Davis, Petitioner v. Illinois
Supreme Court briefJun 18, 2020
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NOTICE
This order was filed under Supreme
Court Rule 23 and may not be cited
as precedent by any party except in
the limited circumstances allowed
under Rule 23(e)(1).
FILED
2019 ILApp (4th) 170431-U
October 4, 2019
Carla Bender
4th District Appellate
Court, IL
NO. 4-17-0431
IN THE APPELLATE COURT
OF ILLINOIS
FOURTH DISTRICT
THE PEOPLE OF THE STATE OF ILLINOIS,
Plaintiff-Appellee,
v.
JERMAINE DAVIS,
Defendant-Appellant.
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)
)
)
Appeal from the
Circuit Court of
Sangamon County
No. 14CF194
)
)
)
>
Honorable
Brian T. Otwell,
Judge Presiding.
JUSTICE HARRIS delivered the judgment of the court.
Justices Steigmann and Turner concurred in the judgment.
ORDER
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Held: The appellate court affirmed, concluding any error in denying defendant’s motion
to suppress his statements to police was harmless beyond a reasonable doubt.
In May 2017, a jury found defendant, Jermaine Davis, guilty of eight counts of
first degree murder and two counts of armed robbery. In June 2017, the trial court sentenced him
to two mandatory terms of natural life imprisonment for first degree murder and two consecutive
terms of 30 years’ imprisonment for armed robbery.
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Defendant appeals, arguing the trial court erred in denying his motion to suppress
his statements. We affirm.
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I. BACKGROUND
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On February 28,2014, the State charged defendant by information with eight
counts of first degree murder (720 ILCS 5/9-1 (a)(1), (2), (3) (West 2012)) for causing the deaths
of Larry Grice and Andrea Pocklington, and two counts of armed robbery (720 ILCS 5/182(a)(2), (4) (West 2012)). On March 13, 2014, a grand jury returned superseding indictments on
all counts.
116
On March 11,2016, defendant filed a motion to suppress video- and audio-
recorded statements he made to police. Defendant argued that he was subject to custodial
interrogation during an interview on February 7, 2014, and had invoked his right to silence.
Defendant asserted detectives failed to scrupulously honor his right to remain silent on February
7, 2014, and also during interviews on February 8, 2014, and February 10, 2014, in violation of
his fifth and fourteenth amendment right to remain silent. Thus, defendant argued, his statements
should be suppressed.
117
The State argued in response that defendant was not in custody on February 7,
2014, but even if he was and his statements were a product of custodial interrogation, he
“reinitiated contact and clarified he was willing to speak more to detectives.” The State further
maintained that any “taint of illegality had dissipated by February 8 and 10 when Defendant was
allowed to rest in the Sangamon County Jail, was re-advised of his [Miranda\ [wjamings at three
different times, and expressed an understanding of his rights and a desire to speak further.”
H8
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A. Hearing on Motion to Suppress Statements
On April 27,2016, Judge Leslie Graves conducted a hearing on defendant’s
motion to suppress statements. Detective Ryan Sims of the Springfield Police Department was
the only witness to testify. The State noted at the outset of the hearing that Sims’s testimony was
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to provide context for the video and audio recordings of the interviews, which were admitted into
evidence and reviewed by the trial court.
110
Detective Sims testified that he and Detective Steve Dahlkamp were assigned to
investigate the December 2012 murders of Grice and Pocklington. Grice was fatally shot and
Pocklington stabbed to death. Sims testified he first had contact with defendant on January 24,
2013. Sims described defendant as a potential witness but not a suspect in the murders. Sims met
defendant at defendant’s place of employment and transported him to an interview room at the
Springfield Police Department where he made a statement and responded to questions posed by
Sims and Dahlkamp. Defendant reported living behind the house where the murders occurred.
Defendant stated he was outside on the evening of December 30,2012, and had observed two
individuals approach the house. One individual entered the house through the front door and the
other entered through the back door. Defendant heard gunshots and screaming or yelling and
then observed the two individuals leave the house. During the interview, defendant also admitted
to having purchased a .357 handgun from a friend of Grice’s named Eric Medley. However,
defendant did not implicate himself in the murders at this time. The interview lasted
approximately 90 minutes and defendant was transported back to his workplace at its conclusion.
111
Sims testified he next had contact with defendant more than a year later, on
February 7,2014. Sims testified that “|ajs the investigation unfolded, we were able to locate
what we believed to be the murder weapon. Based on some ballistic tests done, the [SJtate
[PJolice traced the gun back through several owners. One of those individuals had said that he
had acquired the gun through [defendant].” Based on this information, Sims and Dahlkamp
contacted defendant’s parole officer, and the parole officer made contact with defendant on
behalf of the detectives. Sims testified that they “met with [defendant] outside where he had met
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his parole officer. We approached him and asked him to come to the station.” Defendant’s parole
officer was also present at this meeting. Defendant drove himself to the police station in an
acquaintance’s car.
112
Sims testified he and Dahlkamp interviewed defendant on February 7,2014, in
the same room where they had initially interviewed him on January 24,2013. Sims described the
interview room as “a standard room with a table, chairs in them” and “located on the second
floor of the Springfield Police Department in the investigation section.” Sims testified there were
three chairs and a table in the interview room which occupied the majority of the space.
Defendant was seated against the far wall with the table between himself and the door. The
detectives sat in the chairs closer to the door. Sims testified that, “as with every person that
comes to the police station,” defendant had to be escorted to the restroom. Although the situation
never occurred, Sims further testified that if defendant had attempted to leave they would not
have allowed him to leave alone, explaining that “[ijt’s not typical we would let anybody in
investigations without us escorting them somewhere just because there's other people that work
up there.”
KB
With the preceding background in mind, we will summarize the substance of
defendant’s February 7, 8, and 10 recorded interviews, along with Detective Sims's relevant
testimony from the suppression hearing.
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1. February 7, 2014, Interview
The February 7,2014, interview began at 11:30 a.m. and concluded at 8:30 p.m.
At the outset of the interview, Sims informed defendant he was not under arrest but because they
were at the police station they had to read him his Miranda rights. Sims testified he did this “to
maybe lay the groundwork about what his rights were. We were unsure of what the nature of the
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conversation would be.” Sims reviewed defendant’s contact information and informed him that
they wanted to revisit the statement he gave on January 24, 2013. Defendant discussed what he
had told them in the last interview. Defendant reiterated that he was in his backyard when the
murders occurred and had witnessed two individuals enter the house and flee a few minutes later.
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After discussing defendant’s previous statement, Sims asked defendant if he was
certain he purchased a .357 handgun from Medley. Defendant said he was certain. About 30
minutes into the interview, Sims stated he knew defendant had not purchased a .357 handgun and
he wanted to talk about the gun defendant did buy. Defendant maintained that he purchased a
.357 handgun but then admitted he had purchased a .22 Ruger for Sancho Mitchell (Mitchell)
because Mitchell knew a person who would buy it for a higher price. Defendant stated he sold
the weapon to an individual named Marcus shortly thereafter but could not remember the exact
date of the transaction.
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Approximately one hour into the interview, Sims told defendant they knew he
was more involved in the murders than what he was telling them because “if you’re listening to
what we’re saying, [the murder weaponj is coming back to you.” Defendant insisted he had no
involvement in the murders. Sims stated, “You were there. That’s what I’m gonna tell you. You
were there.” Detective Sims then told defendant that this was his opportunity to say he only had a
small part in the murders: “[WJe’re gonna keep moving forward, this case is gonna move
forward and you’re either gonna get it, the biggest chunk of this, or you can try to get out from
this a little bit
*** M
118
Defendant then told the detectives that he sold the .22 Ruger to an individual
named Black before he sold it to Marcus and that Black committed the murders and gave the gun
back to him afterwards. Detective Sims told defendant his story was “the craziest thing [he hadj
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ever heard of.” Sims insisted that defendant be truthful because the evidence pointed to him and
they knew he was involved. Around this time, defendant asked if he could make a phone call to
have his friend pick up the car he drove to the police station. Sims responded, “that’s not where
we’re at, we’re not at that point.” Defendant replied, “I give up for real cause I’m tired, man, I’m
tired, I’m beaten down,” and then said, “[hjonestly, you already making me feel like I’m under
arrest, I’m ready to go lay down, honestly. I’m tired, I’m beat up.” Sims testified that he
responded by “explain[ingj to [defendant] that we weren’t certain what was going to take place
at that point, that there had been no decisions made, and we were hoping to just get a statement
from him about his knowledge about the incident.” Sims also testified he never told defendant he
was free to leave and he never told defendant that he was not under arrest.
119
At this point in the interview, Detective Sims told defendant that the investigation
had “c[oJme full circle [from the January 24,2013, interview] to [where] we’re all here today.
Only things have really shifted[.J” Defendant asked if he could send a text to take care of the car
and the following exchange occurred approximately 90 minutes into the interview:
“[DETECTIVE SIMSJ: I don’t want you to get side tracked about the car.
[DEFENDANT]: No, this—.
[DETECTIVE SIMSJ: We’re gonna let you take care of the car, we will
let you take care.
[DEFENDANT^ I’m done, cause I’m done talking. That’s why do you
mind if I—I don’t want to talk anymore, I want to use that right to stop talking.”
The detectives then gathered their things and stood up but continued to talk to defendant while
doing so:
“[DETECTIVE SIMSJ: Okay. Alright.
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[DETECTIVE DAHLKAMPJ: Need a smoke or anything?
[DEFENDANT]: I sure do.
[DETECTIVE DAHLKAMPJ: Alright. We’ll uh see how things go, and
just sit and relax—.
[DETECTIVE SIMSJ: Send a text.
[DETECTIVE DAHLKAMPJ: We’re not trying to be the bad guys here, I
just want you to know that, and
[DEFENDANTJ: Like I can’t, I feel like—
[DETECTIVE DAHLKAMPJ: Just let me talk here, I don't want to seem
like we're being the bad guys here, okay, obviously if you weren’t in the, we’ve
done some research on you, you, what happened doesn’t match you, okay? It, you
know—
[DEFENDANT]: I ain’t never shot, well killed nobody,
[DETECTIVE DAHLKAMPJ: Right, right, I understand that. Okay, and
things happen that some, like, say [Detective SimsJ drags me into it and he is not
as connected to the situation as I am and he does some stupid shit and now I’m on
the hook for it, and it’s like, that’s why we come talk to you man. It’s giving you
the opportunity to come out, we talk to the person that doesn’t have as much to do
with it as the other people, okay? And I hope you’re hearing me, and hearing what
I’m saying, there’s some underlying reasons why I’m saying that, that maybe
things might work out better for people that weren't um necessarily the evil
person in this and if it’s somebody, somebody maybe got trapped up because the
person that did this didn’t have as much at stake and they’re like what the fuck did
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you do, you know? So things happen out of people’s control, but we try to give
obviously that’s why you’re in here we’re even talking to you.
[DEFENDANTJ: Right, I know but shit it was getting frustrating.
[DETECTIVE DAHLKAMPJ: I, alright.”
At this point in the interview the detectives left the room.
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According to the videotape of the interview, approximately four minutes later,
defendant yelled into the hallway to ask if he could make a phone call. Detective Sims reentered
the room and stated he did not “even know what [was going toj happen here yet, but you can do
whatever you want to ***.” Defendant and Sims then had the following exchange:
“[DEFENDANTJ: I don’t know what’s gonna happen here, so I don’t
want to talk no more I’m frustrated, maybe we’ll talk again tomorrow or
something, I don’t know if you want I’m just.
[DETECTIVE SIMSJ: Listen, I’m gonna be willing, all I can say is this,
I’ll be willing to talk to you, but you have to understand we got people we got to
answer to, okay.
[DEFENDANT]: I understand.
[DETECTIVE SIMSJ: And I keep telling you about I just don’t know if
you’re getting it about the seriousness of where we’re at.
* * *
[DEFENDANTJ: It’s fucking up my life man.
[DETECTIVE SIMSJ: But it can fuck it up even more, that’s the problem,
okay. This definitely could fuck up your life some more, let me tell you that,
because the people we have to answer to, this is, I’m not saying we can’t talk
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tomorrow, maybe we can talk tomorrow, alright, but just at least hear me when I
tell you this, there’s other people that we got to answer to ***. And I’m gonna tell
you right now that you are involved in it, okay?
And either you were that guy
that did some of this crazy shit that happened in that house, or you weren’t, and
all I’m telling you is, this is bad.
[IJf you didn’t do it, you better get on the
bus here dude, [defendant] you’ve got to hear me, you gotta get on the bus
because guess who’s got the gun that did some of the whacking in the house?
You have the gun. You have it, you had it, you did it for whatever reason, okay?”
At this point, Sims left the room.
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Sims then returned after 15 minutes and questioned defendant for another 8
minutes. After being left alone the third time (for 33 minutes), defendant can be heard on the
video talking to himself. Subsequently, the detectives walked into the room and asked defendant
whether he was talking to himself or to them. Defendant responded he was “J Just talking out
loud.” The detectives stayed in the room and continued the interview until defendant stated that
Mitchell committed the robbery and murders but defendant had no idea beforehand it was going
to happen and he had no involvement. The detectives questioned defendant further and then
exited the interview room, leaving defendant alone for approximately two hours.
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When the detectives returned, they told defendant they were giving him another
opportunity to be truthful because the evidence showed that he went into the house where the
victims were murdered and that he possessed the gun used in the crime. Defendant then admitted
that he went into the house with Mitchell. He stated Grice answered the door and Mitchell
pointed a gun in Grice’s face while defendant rummaged through the room looking for marijuana
and money. Defendant stated he could not fmd any money but took a bag of marijuana and
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exited through the front door. When defendant was outside, he heard two or three gunshots and
screaming. The detectives questioned defendant further about what happened inside the house.
They also wanted to know who had the knife that was used to stab Pocklington, which led to the
following exchange:
“[DETECTIVE DAHLKAMPJ: Who had the knife?
[DEFENDANTJ: Sancho [MitchellJ had the knife, cause I didn’t have it.
[DETECTIVE DAHLKAMPJ: Oh man, how do you know he had the
knife?
[DEFENDANT]: Cause I didn’t.
[DETECTIVE DAHLKAMPJ: That’s not a good answer. It’s not a good
answer.
[DETECTIVE SIMSJ: Let me ask you, let me ask you one thing.
[DEFENDANT]: I know where this is going.
[DETECTIVE SIMSJ: Listen—
[DEFENDANTJ: I’ll get me an attorney—
[DETECTIVE DAHLKAMPJ: Now listen.
[DEFENDANT]: No, this is not cool no more, I’m over here spilling my
shit man.
[DETECTIVE DAHLKAMPJ: I’m just trying to eliminate you from this.
[DEFENDANT]: I understand that, and—
[DETECTIVE DAHLKAMPJ: And you can’t even do that.
[DEFENDANTJ: I told you what I know. I’m ready to go.
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[DETECTIVE SIMSJ: Hey take a breath for me.
[DEFENDANT^ No. I’m ready to go.
(Inaudible all speaking at once)
[DEFENDANT): This shit is crazy. I get all this shit out.
^^ ^
[DEFENDANT^ I don’t want to talk no more.
[DETECTIVE SIMSJ: Okay.
[DEFENDANT]: I’m ready to go back home or book me.”
The detectives left the room and returned after approximately one hour.
It 23
Upon reentering the interview room, Sims and Dahlkamp pressed defendant
further to admit that he did not leave the house before the murders occurred. However, defendant
maintained that although he participated in the robbery, he was outside when Mitchell killed
Grice and Pocklington. At the end of the interview, defendant was arrested and jailed on a charge
of unlawful possession of a weapon by a felon.
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2. February! 8, 2014, Interview
Detectives Sims and Dahlkamp interviewed defendant again on February 8, 2014.
The interview began at 11:4i a.m. and concluded at 3:03 p.m. At the outset of the interview,
Sims reminded defendant that “because we’re here at the station[] you aren’t just free to walk out
at this moment. I do have to remind you, you understand that your rights still apply. I read them
to you yesterday. The whole, you have the right to remain silent. You understand what that
means?” Defendant replied, “Yeah, I can stop talking whenever I choose to.”
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Sims informed defendant that he had additional questions because he believed
defendant was more involved in the murders than what he had indicated the previous day.
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Defendant then proceeded to discuss in more detail how he and Mitchell robbed Grice and
Pocklington and that he left through the front door before Mitchell murdered them. After the
detectives reiterated they believed defendant was involved in more than just the robbery, he
conceded that he saw Mitchell shoot Grice in the back of the head but maintained he left while
Pocklington was still alive. Again, the detectives expressed their doubt about defendant’s version
of the events and the following exchange occurred:
“[DETECTIVE SIMSJ:. *** All these details matter about what’s going
on. And for you to say I have no idea—that I left— no one is going to believe that
[defendant]. No one is going to believe it.
[DEFENDANT]: You want me to lie?
[DETECTIVE SIMSJ: No, I am not telling you that. I just want you to tell
the truth.
[DEFENDANT): I’ve been telling the truth.
[DETECTIVE DAHLKAMPJ: You haven’t been telling the truth.
[DEFENDANTJ: There’s no reason for us to talk anymore then. If I’m
not— Take me back to my cell now because—.
[DETECTIVE DAHLKAMPJ: It doesn’t benefit you if we do that.
[DEFENDANT]: Shit—obviously me sitting here and telling you what I
know and seen, ain’t benefitting me.
[DETECTIVE DAHLKAMPJ: You don’t leave out the front door. You
don’t leave after the first shot.
[DEFENDANT]: Here we go see—.
[DETECTIVE DAHLKAMPJ: You didn’t leave after the first shot.
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[DEFENDANT]: I’m done talking. I’m ready to go home.
[DETECTIVE DAHLKAMPJ: You want to leave it like that huh?
[DEFENDANT]: Fucking back and forth man—.”
The detectives subsequently informed defendant the physical evidence established that two
people had committed the murders and they knew he was the second person. Defendant denied
killing anyone and maintained he ran out of the front door after Mitchell shot Grice.
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3. February 10, 2014, lntei~view
Detectives Sims and Dahlkamp next interviewed defendant on February 10, 2014.
This interview took place at the jail and was audio-recorded. The detectives read defendant his
Miranda rights at the beginning of the interview, and defendant stated that he understood them.
Defendant initially recounted the same story he told the detectives on February 8; that he had
gone to the house with Mitchell to rob Grice, he saw Mitchell shoot Grice, and left immediately
after while Pocklington was still alive. Sims told defendant that his story was not supported by
the physical evidence.
If 29
Ultimately, defendant confessed during the February 10 interview to killing Grice
and stated that Mitchell killed Pocklington. Defendant went on to explain that he had the gun
when they entered the house and at some point Grice reached for his gun, so defendant pushed
him down and shot him in the back of the head. After he shot Grice, defendant witnessed
Mitchell stab Pocklington multiple times and defendant ran out of the back door as Pocklington
struggled with Mitchell.
If 30
After defendant’s confession, Sims and Dahlkamp transported defendant to the
police station to have defendant give a final statement. Defendant’s final statement was audioand video-recorded. Before the questioning began, Sims stated, “because we moved you over
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here, I need to advise you of what your rights are, it’ll be like the [fourth] time I’ve advised you
what your rights are.” Defendant replied, “Okay, actually five, this will be five.” Sims then read
defendant his rights, defendant stated he understood them, and he proceeded to make his
statement.
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Defendant explained he and Mitchell went to the victims’ house late on the night
of December 30,2012, to steal marijuana from Grice. They knocked on the door. Grice answered
the door, and Mitchell pointed a gun in his face. At this time, defendant began running through
the house and asked Pocklington where the marijuana was located. She pointed to a black duffel
bag, and defendant grabbed the bag. Defendant yelled to Mitchell, “I got it, let’s go.” Mitchell
replied, “can’t go, *** we ain’t got no mask on.” At first, defendant was not concerned and still
wanted to leave. However, he said, “[bjut then it got to me like yeah, and I took the gun and shot
[GriceJ. I shot [GriceJ in the back of the head while he was laying on the floor.” Next, defendant
informed the detectives, “All of a sudden, I’m hearing screaming, and I look back and she
snatched into the kitchen and like blood’s spilling everywhere.” Defendant told Mitchell they
had to leave. Mitchell grabbed the gun and shot Pocklington; he attempted to shoot her a second
time but the gun jammed so he grabbed a knife. Defendant fled through the back door as
Mitchell began to stab Pocklington multiple times.
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Following arguments, Judge Graves took defendant’s motion to suppress under
advisement. On June 6, 2016, Judge Graves entered a written order denying defendant’s motion.
The court found that defendant was not in custody when he invoked his right to remain silent on
February 7,2014. The court relied on the following facts: (1) defendant drove himself to the
police station; (2) he was interviewed in the same room the previous year by the same detectives
and was aware of what they wanted to discuss; (3) he made statements after invoking his right to
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remain silent, indicating that he subjectively believed he was not in custody; (4) he had the use of
his phone; (5) the officers took breaks and gave him food, water, and cigarettes; and (6) he was
not booked, handcuffed, or fingerprinted. Because the court found defendant was not in custody,
it did not address whether the detectives scrupulously honored his right to cut off questioning.
133
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B. Defendant’s Pro Se
“Motion to Rehearing of Motion to Suppress”
Defendant thereafter elected to proceed pro se and on July 25,2016, filed a
“motion to rehearing of motion to suppress.” On August 3, 2016, Judge Graves conducted a
hearing on defendant’s motion. At the hearing, defendant appeared pro se with standby counsel.
Defendant argued that during the February 7, 2014, interview, he requested counsel, stating, “I
know how this is going, how it's going to go. Can you all give me an attorney?” The State called
Detective Sims to testify at the hearing. Sims testified the statement “seemed more
about the
arrest, which I told [defendant] *** we didn’t even know where it was going to end up at that
point[.J And then as—nearly immediately then as the conversation continued again, he had stated
he would talk to us tomorrow, and the conversation continued.”
135
Following arguments by defendant and the State, the trial court denied
defendant’s motion, stating the circumstances surrounding defendant’s statement did not give the
detectives sufficient notice that he was actually invoking his right to counsel.
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C. Jury Trial, Sentencing, and Posttrial Motions
Defendant’s trial commenced on May 1, 2017, and concluded on May 11, 2017.
The jury convicted defendant on eight counts of first degree murder and two counts of armed
robbery. In June 2017, the trial court denied (1) defendant’s posttrial motion alleging the court
erred when it denied defendant’s motion to suppress his statements and (2) defendant’s pro se
motion alleging trial counsel provided ineffective assistance. The court sentenced defendant to
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two mandatory terms of natural life imprisonment on two counts of first degree murder (finding
the remaining six counts merged with his two first degree murder convictions) and two
consecutive terms of 30 years’ imprisonment for the armed robberies.
138
This appeal followed.
139
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II. ANALYSIS
On appeal, defendant argues the trial court erred when it denied his motion to
suppress his statements to Detectives Sims and Dahlkamp. Specifically, defendant asserts (1) he
was in custody on February 7,2014, when he invoked his right to remain silent and the
detectives failed to scrupulously honor his right to remain silent and (2) he unambiguously
invoked his right to counsel on February 7,2014, and the detectives continued the interrogation
without counsel present. Defendant further asserts his subsequent statements made on February 8
and 10, 2014, should have been suppressed due to the Miranda violation that occurred on
February 7,2014.
141
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A. Standard of Review
In reviewing a trial court’s ruling on a motion to suppress, we will reverse
findings of fact and credibility determinations only if they are against the manifest weight of the
evidence. People v. Slater, 228 Ill. 2d 137,149, 886 N.E.2d 986, 994 (2008). However, we
review de novo “the ultimate question posed by the legal challenge to the trial court’s ruling on a
suppression motion.” Id. Further, we may consider the entire record on appeal. People v. Gilliam,
172 Ill. 2d 484, 501,670 N.E.2d 606, 614 (1996).
143
Where the admissibility of a confession is challenged, “the State bears the burden
of proving the confession was voluntary by a preponderance of the evidence.” Slater, 228 HI. 2d
at 149. “The concept of voluntariness includes proof that the defendant made a knowing and
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intelligent waiver of his privilege against self-incrimination and his right to counsel.” People v.
Braggs, 209 Ill. 2d 492, 505, 810 N.E.2d 472,481 (2003).
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B. Miranda and the Fifth Amendment Privilege
Against Self-Incrimination
The privilege against self-incrimination, found in both the United States
Constitution (U.S. Const., amend. V) and the Illinois Constitution (Ill. Const. 1970, art. I, § 10),
is jeopardized when, absent procedural safeguards, an individual is subjected to “custodial
interrogation,” which is defined as “questioning initiated by law enforcement officers after a
person has been taken into custody or otherwise deprived of his freedom of action in any
significant way.” Miranda v. Arizona, 384 U.S. 436,444 (1966). Custodial interrogation
“contains inherently compelling pressures which work to undermine the individual's will to
resist and to compel him to speak where he would not otherwise do so freely.” Id. at 467. In light
of these compelling pressures, the Supreme Court held that the State cannot use an individual's
statements stemming from custodial interrogation unless it first demonstrates two things: (1) “the
use of procedural safeguards effective to secure the privilege against self-incrimination[,J” such
as warning the individual prior to questioning “that he has a right to remain silent, that any
statement he does make may be used as evidence against him, and that he has a right to the
presence of an attorney,” and (2) a voluntary and knowing waiver of those rights by the
individual. Id. at 444.
IT 46
“Once [the Miranda\ warnings have been given, the subsequent procedure is
clear. If the individual indicates in any manner, at any time prior to or during questioning, that he
wishes to remain silent, the interrogation must cease.” Miranda, 384 U.S. at 473-74. Any
statement taken after invocation of the right to remain silent “cannot be other than the product of
compulsion, subtle or otherwise. Without the right to cut off questioning, the setting of
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[custodial] interrogation operates on the individual to overcome free choice ***.” Id. at 474.
However, invoking the right to remain silent does not “create a per se proscription of indefinite
duration upon any further questioning by any police officer on any subject ***.” Michigan v.
Mosley, 423 U.S. 96,102-03 (1975). Rather, “the admissibility of statements obtained after the
person in custody has decided to remain silent depends under Miranda on whether his ‘right to
cut off questioning’ was ‘scrupulously honored.’ ” Id. at 104. Our supreme court has interpreted
this last passage from Mosley “to include only the statement obtained as a result of not honoring
the defendant’s right to cut off questioning. We do not think the court intended that ad
subsequent statements are to be excluded.” (Emphasis in original.) People v. Brownell, 79 Ill. 2d
508, 519, 404 N.E.2d 181, 187 (1980).
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C. The Trial Court’s Denial of Defendant’s
Motion to Suppress: Right to Remain Silent
The first issue is whether defendant was in custody for Miranda purposes
approximately 90 minutes into the February 7 interrogation when he invoked his right to remain
silent by stating, “I want to use that right to stop talking.” If defendant was in custody, thus
necessitating the Miranda protections, the second issue is whether the detectives scrupulously
honored his right to cut off questioning. If the detectives failed to honor his right to end the
interrogation, we must then determine whether the failure to scrupulously honor defendant’s
invocation of his right to remain silent required the suppression of his subsequent statements. We
begin by determining whether defendant was in custody.
If 49
1150
1. Whether Defendant Was in Custody
“The determination of whether a defendant is ‘in custody’ for Miranda purposes
involves ‘[tjwo discrete inquiries
: first, what were the circumstances surrounding the
interrogation; and second, given those circumstances, would a reasonable person have felt he or
- 18-
she was not at liberty to terminate the interrogation and leave. ’ ” Braggs, 209 Ill. 2d at 505-06
(quoting Thompson v. Keohane, 516 U.S. 99,112 (1995)). With respect to the former inquiry, the
following factors are relevant in determining whether a defendant was in custody:
“(1) the location, time, length, mood, and mode of the questioning;
(2) the number of police officers present during the interrogation;
(3) the presence or absence of family and friends of the individual;
(4) any indicia of a formal arrest procedure, such as the show of
weapons or force, physical restraint, booking or fingerprinting;
(5) the manner by which the individual arrived at the place of
questioning; and (6) the age, intelligence, and mental makeup of
the accused.” Slater, 228 HI. 2d at 150.
Courts have also considered whether a defendant “had reason to believe that he or she was the
focus of a criminal investigation.” People v. Vasquez, 393 Ill. App. 3d 185, 190,913 N.E.2d 60,
65 (2009); but see People v. Gorman, 207 Ill. App. 3d 461, 472-73, 565 N.E.2d 1349,1356-57
(1991) (stating this factor is only relevant if the defendant actually perceives he or she is the
focus of a criminal investigation). “With respect to the latter inquiry, the accepted test is what a
reasonable person, innocent of any crime, would have thought had he or she been in the
defendant’s shoes.” Braggs, 209 HI. 2d at 506.
151
a. Circumstances Surrounding the Interrogation
152
i. Location, Time, Length, Mood, and Mode
153
(a). Location
154
The February 7 interrogation occurred in an interview room at the police station.
While not dispositive (see Oregon v. Mathiason, 429 U.S. 492, 495 (1977)), when “the police
- 19-
choose to conduct ‘non-custodial interrogations’ at the police station, there is a substantial risk
that a court subsequently will disagree that the circumstances were noncustodial.” Gorman, 207
Ill. App. 3d at 470. “The placement of furniture, the size of the room, the presence of armed
officers, whether doors were opened or closed (and if closed, whether they were locked), the
transport of the suspect into the depths of a building where ingress and egress is typically
controlled by security measures, all might give support to a defendant’s claim that he did not
believe himself free to leave.” Id at 471.
1155
Here, the interview room was located in a secured section of the police station.
From the video, it appears the room is windowless and during the interrogation the door
remained closed. Detective Sims testified there were three chairs and a table in the interview
room which occupied the majority of the space. Defendant was seated against the far wall with
the table between himself and the door. The detectives, who were armed, were seated closer to
the door than defendant. In our view, the “location” factor favors a finding that defendant was in
custody at the relevant time. See, e.gPeople v. Gempel, 2016 IL App (3d) 140833, ^ 62,48
N.E.3d 780 (concluding this factor favored a custody finding where the interrogation occurred
“in a small interview room with the door closed” and the detectives “placed the defendant in the
comer opposite the exit and blocked the defendant’s path to the exit by placing themselves in
between the defendant and the door”).
156
157
(b). Time and Length
The interrogation on February 7 began at 11:30 a.m. and lasted approximately
nine hours. As noted above, defendant invoked his right to remain silent approximately 90
minutes into the interrogation. Although the interview did begin in the middle of the day, 90
-20-
minutes is a significant amount of time to be questioned by detectives. We find the “time and
length” factor is neutral.
1158
1)59
(c). Mood and Mode
Based on our review of the record, the interview began with inquisitive
questioning but quickly changed to accusative questioning. At the beginning of the interview, the
detectives reviewed defendant’s contact information and discussed his previous statement.
However, approximately 30 minutes into the interview, the detectives informed defendant they
believed he was lying about the gun he had purchased. The detectives steadfastly discounted
defendant’s version of events, and at one point Sims told defendant that his story was “the
craziest thing [he hadj ever heard of.” Detective Sims also told defendant that he knew defendant
was involved in the crimes because the murder weapon came back to him and that “this case is
gonna move forward and you’re either gonna get it, the biggest chunk of this, or you can try to
get out from this a little bit ***.” We find the “mood and mode” factor favors a finding that
defendant was in custody at the relevant time. See, eg., People v. Alfaro, 386 Ill. App. 3d 271,
291, 896 N.E.2d 1077,1095 (2008) (“[TJhe changing tenor of the interrogation mayshifta
voluntary encounter into a custodial one.”); People v. Carroll, 318 HI. App. 3d 135, 138-39, 742
N.E.2d 1247,1250 (2001); People v. Savory, 105 Ill. App. 3d 1023, 1029,435 N.E.2d 226, 23031 (1982) (concluding that a change from inquisitive to accusative questioning is a factor
supporting a custody determination).
H 60
161
ii. Number ofPolice Officers
Detectives Sims and Dahlkamp were the only officers present during the
interrogation. We find the “number of officers” factor also favors a finding that defendant was in
custody at the relevant time. See, e.g., People v. Wheeler, 281 Ill. App. 3d 447,457, 667 N.E.2d
-21 -
158, 164 (1996) (concluding this factor favored a custody finding where the defendant was
interviewed by two officers); People v. Bromi, 136 Ill. 2d 116, 126, 554N.E.2d 216, 220 (1990)
(same).
1162
H63
iii. Presence or Absence of Family and Friends
Defendant was alone during the interview. However, the record does not show if
he requested to have friends or family present; nor does it disclose if such a request would have
been granted or denied. We find this factor is neutral.
H 64
II65
iv. Indicia ofFormal Arrest Procedure
There were no indicia of formal arrest; defendant was not handcuffed, booked, or
fingerprinted at any time before invoking his right to remain silent. We find the “indicia of
formal arrest” factor favors a finding that defendant was not in custody at the relevant time.
H 66
1167
v. Manner by Which Defendant Arrived
Defendant drove himself to the police station. While we find this factor favors a
finding that defendant was not in custody at the relevant time, we note that “even if a suspect
goes to the police station voluntarily or at the invitation of the police, the circumstances may
eventually become custodial in nature.” Gorman, 207 Ill. App. 3d at 470.
1|68
1169
vi. Age, Intelligence, and Mental Makeup ofDefendant
Defendant was 33 years old at the time of the interrogation. He dropped out of
school at the age of 14 but at some point obtained a G.E.D. while in prison. Defendant also
suffers from mental health issues. On December 24,2012, he was involuntarily admitted to the
emergency room because of insomnia, hallucinations, and a lack of psychiatric medication. He
was then transferred by ambulance to Memorial Hospital and involuntarily admitted for further
-22-
treatment. Based on these facts, we find the “age, intelligence, and mental makeup” factor
slightly favors a finding that defendant was in custody at the relevant time.
h 70
H71
b. Would a Reasonable Person
Have Felt at Liberty to Terminate the Interrogation?
Based on the circumstances at the time defendant invoked his right to remain
silent, a reasonable person, innocent of any crime, would not have felt at liberty to terminate and
leave the February 7 interrogation.
H 72
Although the interview began voluntarily with defendant driving himself to the
police station, the circumstances turned custodial prior to defendant’s invocation of his right to
remain silent. Defendant was questioned in a windowless interview room by two armed
detectives. He was placed in the comer of the room with a table between himself and the closed
door. While the interview began inquisitively, it became accusatory. The detectives informed
defendant that they believed he was lying about the gun he had purchased, and they directly
accused him of being involved in the murders. When defendant attempted to explain that he got
rid of the weapon before the murders, Sims told him that his story was “the craziest thing [he
hadj ever heard of.” The detectives continued to discount defendant’s version of the events, and
Sims warned defendant that lying was not beneficial to him, stating, “for you to lie and say I
never was in there, and I never had any involvement
, that’s even worse for you.” Sims also
told defendant that the case was going to “keep moving forward,
and you’re either gonna get
it, the biggest chunk of this, or you can try to get out from this a little bit $$$ n
H 73
In summary, at the time defendant invoked his right to remain silent, he was in a
small, windowless room at a police station being accused of participating in a double homicide
and armed robbery by two armed detectives who had been investigating the crimes for over a
year; the detectives had informed him that their investigation brought them full circle to him;
-23-
they had continually discounted his version of the events; moreover, they had told defendant he
was either going to get “the biggest chunk” of the liability or could “tiy to get out from [itj a
little bit”; finally, Detective Sims told defendant that “there’s not gonna be something that you’re
gonna be able to just tell us that’s cause all of us just walk away ***.” See Alfaro, 386 Ill. App.
3d at 298-99 (“|AJ reasonable person, faced with the knowledge that the police believed him to
be criminally liable for the murder of the victim, and confronted with the express disbelief of his
explanations
would not have believed that he could terminate the interview and leave the
station.”).
H 74
The State highlights the following factors in support of its argument that
defendant was not in custody when he invoked his right to remain silent: (1) “the crucial fact that
defendant was interviewed
in the same room by the same officers who interviewed him a
year prior” and the fact he drove himself to the police station; (2) defendant was allowed to use
his phone throughout the interview; (3) the absence of indicia of formal arrest, including the
detectives having specifically told defendant he was not under arrest; and (4) defendant’s
subjective belief he was not under arrest. We will address each of the above in turn.
K75
First, the State points only to the similarities between the two interviews on
January 24,2013, and February 7,2014, and ignores the key differences. For example, the first
interview occurred only three weeks after the murders when defendant was considered a witness;
the second interview occurred after more than a year of investigation and at a point when the
detectives knew defendant had possessed the murder weapon around the time of the murders.
Also, the detectives never told defendant during the first interview they thought he was lying and
they never accused him of committing the crimes; conversely, during the second interview they
repeatedly told him they thought he was lying and that they believed he was involved in the
-24-
crime. Detective Sims stated, “we’re gonna keep moving forward, this case is gonna move
forward and you’re either gonna get it, the biggest chunk of this, or you can try to get out from
this a little bit ***.” Thus, the tenor of the two interviews was entirely different. Additionally,
while there is no doubt the fact that defendant drove himself to the police station on February 7
weighs against a custody finding, we again note that “even if a suspect goes to the police station
voluntarily or at the invitation of the police, the circumstances may eventually become custodial
in nature.” Gorman, 207 Ill. App. 3d at 470
U76
Second, the State mischaracterizes the record by stating defendant was allowed to
use his cell phone throughout the interview. It is true he was allowed to use his cell phone at
certain times. However, it is also true he was denied its use at other times. For example, shortly
before invoking his right to remain silent, defendant asked if he could make a call regarding the
car; Sims responded, “that’s not where we’re at, we’re not at that point.” Additionally, when
defendant was allowed to make a call, Sims told him to ‘‘wind it up.” Thus, while defendant was
allowed to use his cell phone, contrary to the State’s suggestion, his usage was not unrestricted.
VI
Third, the indicia-of-formal-arrest factor is only one of several nondispositive
factors to consider, and “[ajlthough the police may tell a suspect that he is free to leave and that
he is not under arrest, a suspect may still reasonably perceive that he is in custody.” Gorman, 207
Ill. App. 3d at 475. Moreover, the detectives here specifically told defendant he was not under
arrest at the outset of the interrogation, at a time all parties agree the interview was noncustodial.
However, when the interrogation began to turn custodial (i.e., when the detectives continuously
discounted defendant’s story and repeatedly accused him of being at the crime scene), the police
never again told defendant he was not under arrest. Rather, they repeated to defendant some
variation of, “we don’t even know what is gonna happen here.”
-25-
1|78
Fourth, although we agree defendant made statements from which it can be
inferred he did not subjectively believe himself to be in custody, defendant’s subjective belief is
“irrelevant to our determination.” People v. Coleman, 2015 IL App (4th) 140730, U 38, 37
N.E.3d 360 (citing Stansbury v. California, 511 U.S. 318, 323 (1994)). Even if defendant’s
subjective belief was relevant, it would favor defendant. Minutes before defendant’s invocation
of his right to remain silent, he stated, “you already making me feel like I’m under arrest ***.
Thus, it appears defendant did believe he was in custody immediately before invoking his right
to remain silent. Accordingly, we reject the State’s arguments and conclude defendant was in
custody for Miranda purposes when he invoked his right to remain silent during the February 7,
2014 interview.
1179
180
2. Whether the Detectives Scrupulously Honored
Defendant's Right to Remain Silent
Having determined that defendant was in custody when he invoked his right to
remain silent and, consequently, that Miranda applies, we next must determine whether the
detectives “scrupulously honored” his “right to cut off questioning.” Mosley, 423 U.S. at 104.
The supreme court has provided the following guidance in making this determination:
“In deciding this question, courts should consider whether (1) the
police 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) a fresh set
of Miranda warnings were given prior to the second interrogation;
and (4) the second interrogation addressed a crime that was not the
subject of the first interrogation.” People v. Nielson, 187 Ill. 2d
-26-
271,287, 718 N.E.2d 131, 142 (1999) (citing Mosleys 423 U.S. at
104).
The “fact that the second interrogation addressed the same crime as the first interrogation does
not preclude a finding that the defendant’s right to remain silent was scrupulously honored.” Id.
We also note that the Supreme Court has found a two-hour passage of time sufficient to satisfy
the second factor. See Mosley, 423 U.S. at 104-06.
181
In considering the factors outlined in Nielson and Mosley, we conclude that the
detectives failed to “scrupulously honor” defendant’s right to cut off questioning on February 7.
First, the detectives did not immediately halt the interrogation after defendant invoked his right
to remain silent. For Miranda purposes, “interrogation” is defined as “ ‘any words or actions on
the part of the police *** that the police should know are reasonably likely to elicit an
incriminating response.
People v. Garcia, 165 Ill. 2d 409, 425, 651 N.E.2d 100, 108 (1995)
(quoting Rhode Island v. Innis, 446 U.S. 291, 301 (1980)). While the detectives did stand up and
gather their things after defendant invoked his right to remain silent and left shortly thereafter,
they did not leave before attempting to elicit an incriminating response from defendant. Before
leaving the room, Dahlkamp asked defendant if he wanted a cigarette. He then told defendant
that they had done some research on him and “what happened doesn’t match you.” In response,
defendant stated, “I ain’t never shot, well killed nobody.” Dahlkamp then informed defendant
“that maybe things might work out better for people that weren’t * * * necessarily the evil person
in this ***.” While we agree with the State that simply asking defendant whether he wanted a
cigarette does not constitute interrogation, we disagree that Detective Dahlkamp’s subsequent
comments were not designed to elicit an incriminating response. Rather, the comments were
clearly an effort to induce defendant to implicate himself in the murders by implying “things
-27-
might work out better” for defendant if he was not the most-culpable party and if he cooperated
with the State. See Brownell, 79 Ill. 2d at 517 (finding a failure to immediately halt the
interrogation where detectives ceased questioning upon the defendant’s invocation of his right to
remain silent but placed a picture of the victim in front of the defendant before walking out of the
room).
1J82
Second, no significant amount of time elapsed between the various rounds of the
interrogation on February 7. Only four minutes passed after defendant initially invoked his right
to remain silent before Detective Sims reentered the room. When Sims reentered, defendant
again stated, “I don’t want to talk no more.” Sims did not acknowledge defendant’s statement
and instead continued to interrogate him for five minutes more before leaving the room a second
time. Sims returned to the room after 15 minutes and interrogated defendant for another 8
minutes before again leaving. After being left alone the third time, this time for 33 minutes,
defendant can be heard on the video talking to himself. Sims reentered the room and asked
defendant whether he was talking to himself or to the detectives. Defendant responded he was
“Ijjust talking out loud.” Sims then continued the interrogation until defendant finally implicated
himself in armed robbery and felony murder.
1183
Additionally, the third and fourth factors outlined in Nielson and Mosley were not
satisfied. The detectives did not read defendant his Miranda rights after he initially invoked his
right to remain silent, and the same detectives continued to question him about the same crimes.
Accordingly, because none of the factors outlined in Nielson and Mosely were satisfied during
the February 7 interrogation, we conclude the detectives failed to “scrupulously honor”
defendant’s right to cut off questioning.
-28-
1184
The State, citing Edwards v. Arizona, 451 U.S. 477 (1981), argues defendant
waived his right to remain silent by reinitiating contact with the detectives. While Edwards
addresses the reinitiation of contact after a defendant’s invocation of the right to counsel, as
opposed to a defendant’s invocation of the right to remain silent, we will address the State’s
argument. In Edwards, the Supreme Court held that once an accused has invoked his right to
counsel, police cannot continue the interrogation “until counsel has been made available to him,
unless the accused himself initiates further communication, exchanges, or conversations with the
police.” Id. at 484-85. The court later clarified that not all inquiries or statements “relating to
routine incidents of the custodial relationship” will “ ‘initiate’ a conversation in the sense in
which that word was used in Edwards.” Oregon v. Bradshaw, 462 U.S. 1039, 1045 (1983). The
Supreme Court went on to explain that “some inquiries, such as a request *** to use a telephone
are so routine that they cannot be fairly said to represent a desire on the part of an accused to
open up a more generalized discussion relating directly or indirectly to the investigation.” Id.
H 85
Here, defendant did not reinitiate contact with the detectives such that his prior
invocation of his right to remain silent was nullified. Instead, he merely asked the detectives if he
could make a phone call. Because this was an inquiry relating to “routine incidents of the
custodial relationship,” it “cannot be fairly said to represent a desire on the part of [defendantJ to
open up a more generalized discussion relating $ 4* to the investigation.” Bradshaw, 462 U.S. at
1045. Moreover, despite the trial court’s finding to the contrary, defendant did not reinitiate
contact when he is heard on the video talking to himself. When the detectives reentered the
interview room and asked if he was talking to them, defendant specifically stated he was “(jjust
talking out loud”; Sims even testified at the suppression hearing that defendant told him he was
talking to himself and not to the detectives. By simply talking to himself, defendant did not
-29-
“represent a desire
to open up a more generalized discussion relating *** to the
investigation.” Id.
H86
The State also argues defendant waived his right to remain silent during the
February 7 interrogation by stating, “maybe we’ll talk again tomorrow or something.” We find
this argument unpersuasive. By stating that maybe he would talk to the detectives the next day
(i.e., February 8), defendant did not clearly waive his recently-invoked right to remain silent on
February 7.
K87
Therefore, we conclude defendant was in custody when he invoked his right to
remain silent, the detectives failed to scrupulously honor his right to cut off questioning, and the
trial court erred in denying defendant’s motion to suppress as it related to the February 7
statements made subsequent to the invocation of his right to remain silent.
3. Whether Defendant’s Subsequent
Statements Are Admissible
H 88
1189
Having concluded the detectives failed to scrupulously honor defendant’s right to
remain silent, we must next determine the impact of this violation on the admissibility of
defendant’s subsequent statements. Relying on People v. Flores, 2014 IL App (1st) 121786, 21
N.E.3d 1227, defendant argues all statements made after the detectives failed to scrupulously
honor his right to remain silent should be suppressed. The State, relying on Brownell, argues that
“only the statement obtained as a result of not honoring the defendant’s right to cut off
questioning” is inadmissible.
H 90
In Flores, the defendant was questioned at a police station about his involvement
in recent shootings. Flores, 2014 IL App (1st) 121786, H 31. The defendant invoked his right to
remain silent at the beginning of the interview, but the detectives continued to question him and
asked if he wanted to see the codefendant's statement. Id. K 31, 34. The defendant stated that he
-30-
did, and then participated in the interrogation until admitting that he was the shooter. Id. f 34.
The defendant agreed to speak with an assistant state’s attorney (ASA) and remained in the
room. Id. The ASA arrived approximately four hours after the interrogation with the detectives
ended. Id. ^ 61. The ASA read defendant his Miranda rights before beginning his questioning.
Id. The defendant ultimately gave a videotaped statement in which he confessed to the shootings.
Id.
191
34.
The Flores court held that all of the defendant’s statements were inadmissible.
The court analyzed the Nielson and Mosley factors and concluded that the defendant’s statements
to the detectives were inadmissible because none of the factors were satisfied. Id. U 59. The court
further held that the “same test must also be applied to determine whether [thej defendant’s later
statements to an ASA were inadmissible.” Id. U 60. It found that because the detectives did not
immediately halt the initial interrogation and the ASA questioned the defendant about the same
crime, the State could not satisfy the first and fourth Nielson and Mosley factors and the
defendant’s later statements to the ASA were therefore also inadmissible. Id. If 62. “While the
passage of time and fresh Miranda warnings before the ASA interview fulfill the second and
third prongs, that is not sufficient to show that [thej defendant’s invocation of his right to remain
silent was scrupulously honored.” Id.
192
Defendant argues that Flores controls the outcome of the present case because,
just as in Flores, the State here can only fulfill the second and third Nielson and Mosley prongs,
and not the first and fourth prongs. Initially, we note Flores is factually distinguishable from the
present case. In Flores, the defendant remained in the interview room between interrogations and
a period of only four hours passed. In the present case, defendant was returned to the jail
between interrogations and a period of approximately 72 hours passed between defendant
-31 -
initially invoking his right to remain silent and the beginning of the February 10 interrogation.
Thus, the interrogations in Flores were far more connected than the interrogations in this case.
Moreover, to accept defendant’s argument would mean that the detectives were effectively
prohibited from questioning defendant about the murders ever again because they did not
immediately halt questioning when he initially invoked his right to remain silent on February 7.
However, no “passage in the Miranda opinion can sensibly be read to create a per se proscription
of indefinite duration upon any further questioning by any police officer on any subject, once the
person in custody has indicated a desire to remain silent.” Mosley, 423 U.S. at 102-03. “[AJ
blanket prohibition against the taking of voluntary statements
, regardless of the
circumstances, would transform the Miranda safeguards into wholly irrational obstacles to
legitimate police investigative activity, and deprive suspects of an opportunity to make informed
and intelligent assessments of their interests.” Id. at 102. Moreover, our supreme court has
interpreted Mosley “to include only the statement obtained as a result of not honoring the
defendant’s right to cut off questioning. We do not think the court intended that all subsequent
statements are to be excluded.” (Emphasis in original.) Brownell, 79 HI. 2d at 519.
1193
Here, even assuming defendant invoked his right to remain silent on February 8,
we conclude his voluntary statements made on February 10 were admissible. Although defendant
undoubtedly invoked his right to remain silent on February 7, and arguably did as well on
February 8, the detectives did not employ “repeated rounds of questioning to undermine the will
of [defendant,]” which is what Mosley sought to prevent. Mosley, 423 U.S. at 102. Rather, in
their questioning of defendant on February 7, the detectives gave defendant numerous breaks,
and defendant continued to engage in conversation with the detectives and never persisted in a
clear desire to stop talking. He also told the detectives that he might be willing to talk to them the
-32-
next day. Moreover, the February 10 interrogations occurred almost 72 hours after defendant’s
invocation of his right to remain silent on February 7 and over 36 hours after any arguable
invocation of the same right on February 8. During this time, defendant had “an opportunity to
make informed and intelligent assessments of [hisj interests.” Id. Additionally, the detectives
read defendant his Miranda rights at the outset of each interrogation. On February 8, when Sims
asked defendant if he understood his rights, defendant replied, “Yeah, I can stop talking
whenever I choose to.” On February 10, Sims stated, “it’ll be like the [fourth] time I’ve advised
you what your rights are.” Defendant responded, “Okay, actually five, this will be five.” Thus,
defendant was aware of his rights, stated he understood them, and voluntarily waived them.
H94
Accordingly, based on the facts of this case, and considering
Nielson and
Mosley> factors, we conclude that defendant’s statements made on February 10, 2014, were
admissible.
U95
H 96
D. The Trial Court’s Denial of Defendant’s
Motion to Suppress: Right to Counsel
Defendant also argues that the trial court erred in denying his motion to suppress
because he unambiguously invoked his right to counsel during the February 7 interview and the
detectives continued to interrogate him outside the presence of counsel. We disagree.
1197
Where “a suspect makes a reference to an attorney that is ambiguous or equivocal
in that a reasonable officer in light of the circumstances would have understood only that the
suspect might be invoking the right to counsel, [Supreme CourtJ precedents do not require the
cessation of questioning.” (Emphasis in original.) Davis v. United States, 512 U.S. 452, 459
(1994). “Rather, the suspect must unambiguously request counsel.” Id. “If the statement fails to
meet the requisite level of clarity, Edwards does not require that the officers stop questioning the
suspect.” Id.
-33-
198
Here, we cannot say that defendant unambiguously requested counsel. The
transcript of the February 7 interview indicates that defendant said, “I’ll get me an attorney.” At
the hearing on defendant’s pro se motion, he argued that he said, “Can you all give me an
attorney?” On appeal, defendant “submits that he can be heard in the video saying, ‘Can I get me
an attorney or something?’ ” Moreover, after reviewing the video numerous times, this court is
unable to discern exactly what defendant stated in the interview. He undoubtedly made reference
to an attorney, but without knowing the words he used, we are unable to say he unambiguously
requested counsel. Accordingly, we find the detectives were not required to cease questioning on
that basis and the trial court did not err in denying defendant’s motion.
199
1100
E. Harmless Error
Finally, having found that the February 10 statements were admissible, we
conclude any error in admitting the statements defendant made on February 7 and 8 was
harmless. “In determining whether a constitutional error is harmless, the test to be applied is
whether it appears beyond a reasonable doubt that the error at issue did not contribute to the
verdict obtained.” People v. Patterson, 217 Ill. 2d 407, 428, 841 N.E.2d 889, 901 (2005). Our
supreme court has articulated three different approaches for determining whether a constitutional
error is harmless: “(1) focusing on the error to determine whether it might have contributed to the
conviction, (2) examining the other evidence in the case to see if overwhelming evidence
supports the conviction, and (3) determining whether the improperly admitted evidence is merely
cumulative or duplicates properly admitted evidence.” Id.
1101
In this case, the improperly admitted evidence (i.e., defendant’s statements made
during the February 7 and 8 interviews) was merely cumulative of the February 10 interview. On
February 7,2014, after invoking his right to remain silent, defendant told the detectives that he
-34-
went to the victims’ house with Mitchell and participated in the armed robbery but left by fleeing
through the front door before Mitchell killed the victims. On February 8, 2014, defendant told
the detectives a similar story, but this time he stated that he saw Mitchell shoot Grice in the back
of the head and left through the front door while Pocklington was still alive. At the beginning of
the February 10,2014, interrogation, defendant told the detectives the same thing he had told
them two days prior: he had robbed the victims with Mitchell, saw Mitchell shoot Grice in the
head, and left while Pocklington was still alive. However, defendant ultimately confessed to
killing Grice and leaving through the back door during the February 10 interrogation. He stated
that he went to the house with Mitchell to rob the victims. Defendant stole a bag of marijuana
and shot Grice because he did not have a mask and feared being identified. He also admitted that
he witnessed Mitchell shoot Pocklington and stab her multiple times as defendant fled from the
house through the back door. Thus, defendant’s February 10 statements were cumulative of his
February 7 and 8 statements.
If 102
In addition, the other evidence in this case, especially the February 10 interview,
overwhelmingly supports defendant’s convictions. During the February 10 interview, defendant
confessed to having murdered Grice and witnessed Mitchell kill Pocklington. He also told the
detectives, for the first time, he fled from the house through the back door, which was important
when considered in the context of Detective Dahlkamp’s testimony: “The scene
told a story
*** . The preliminary investigation indicated that the person who had killed Andrea had exited
through the back door. There was [sic\ markings, blood smears on walls, light switches. Going
through the back door, so what we surmised was it was dark; the light was on; the person that
committed the crime had shut the light off as they exited.” Additionally, on February 10,
defendant told the detectives for the first time that Grice was “wearing a plastic black watch” at
-35-
the time of the murders. Dahlkamp testified Grice’s “watch had been taken off and was placed
underneath his body where his watch was found.” Thus, defendant confessed to murder in his
February 10 interview and provided specific details not contained in his previous statements.
11103
In addition to defendant’s confession on February 10, there was other properly
admitted evidence that supports the convictions. The State introduced Mitchell’s recorded
statement, which more or less mirrored defendant’s confession, with the key difference being
Mitchell told the detectives that defendant committed both murders. Additionally, the State
presented evidence establishing defendant had possessed the .22-caliber Ruger handgun used in
the murders. Caroline Kersting, a forensic scientist at the Illinois State Police Crime Lab,
confirmed that the bullets recovered from the victims’ bodies were fired from this same .22caliber handgun. During their investigations Detectives Sims and Dahlkamp traced the gun to
Grice and Medley. Medley was arrested on December 29, 2012, the day before the murders, and
testified that he sold the gun to defendant shortly before his arrest. During the February 7, 2014,
interview, before invoking his right to remain silent, defendant admitted he had purchased a .22
Ruger from Medley in December 2012 and sold it to Marcus shortly thereafter. Marcus testified
that defendant sold him the weapon in March 2013. Marcus further testified that shortly after the
murders defendant told him, “JdJead body don’t talk” and “it was messed up” in speaking about
the murders.
If 104
Finally, the State presented evidence demonstrating Grice possessed a significant
amount of counterfeit money prior to the murders and defendant was found in possession of
counterfeit money shortly thereafter. Before invoking his right to remain silent on February 7,
2014, defendant told the detectives an acquaintance named Tyrell Woods gave him
approximately $2000 in counterfeit money. Defendant gave the money to Medley for the purpose
-36-
of purchasing marijuana. Defendant stated Medley later informed him and Woods that Medley’s
drug dealer pulled a gun on him because he knew the money was fake. However, Medley
testified at trial that he discovered the money was counterfeit prior to attempting to make a
purchase and never returned it to Woods or defendant, nor did he give them any marijuana.
Medley further testified that before being taken into custody on December 29, 2012, he gave the
money to Grice. During the January 24, 2013, interview, defendant stated he purchased
marijuana from Grice and received counterfeit money as change. Mitchell told the detectives that
during the robbery defendant kept saying to Grice, “Where the shit at what’s up you know what
you all did. Where my shit at? Give it up.”
H 105
Accordingly, we conclude any error by the trial court in admitting defendant’s
February 7 and 8 statements was harmless beyond a reasonable doubt.
in. CONCLUSION
11106
H 107
For the reasons stated, we affirm the trial court’s judgment.
11108
Affirmed.
-37-
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SUPREME COURT OF ILLINOIS
SUPREME COURT BUILDING
200 East Capitol Avenue
SPRINGFIELD, ILLINOIS 62701-1721
(217) 782^2035
FIRST DISTRICT OFFICE
160 North LaSalle Street, 20th Floor
Chicago, IL 60601-3103
(312)793-1332
TDD: (312)793-6185
March 25, 2020
In re:
People State of Illinois, respondent, v. Jermaine Davis, petitioner.
Leave to appeal, Appellate Court, Fourth District.
125634
The Supreme Court today DENIED the Petition for Leave to Appeal in the above
entitled cause.
The mandate of this Court will issue to the Appellate Court on 04/29/2020.
Very truly yours
dM
Clerk of the Supreme Court
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.