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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)

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Appeal from the

Circuit Court of

Sangamon County

No. 14CF194

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>

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.”

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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.

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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

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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.

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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.

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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.

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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.

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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.

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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.”

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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.

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This appeal followed.

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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.

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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.

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“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.

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