Opinion
NO. 5-14-0402
01-30-2018
THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DONALD A. LEE, Defendant-Appellant.
NOTICE
Decision filed 01/30/18. The text of this decision may be changed or corrected prior to the filing of a Peti ion for Rehearing or the disposition of the same.
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).
Appeal from the Circuit Court of Franklin County.
No. 13-CF-145
Honorable Thomas J. Tedeschi, Judge, presiding.
JUSTICE CATES delivered the judgment of the court.
Presiding Justice Barberis and Justice Welch concur in the judgment.
ORDER
¶ 1 Held: The defendant's convictions for murder and aggravated discharge of a firearm must be reversed and the cause remanded for a new trial on those counts where the trial court erred in denying defendant's motion to suppress statements made after he invoked his right to counsel. The defendant's aggravated unlawful use of a weapon conviction must be vacated where the statute creating the offense has been found facially unconstitutional.
¶ 2 Following a jury trial, the defendant, Donald A. Lee, was convicted of first degree murder (720 ILCS 5/9-1(a)(1) (West 2012)); aggravated unlawful use of a weapon (720 ILCS 5/24-1.6(a)(1), (a)(3)(A) (West 2012)); and aggravated discharge of a firearm (720 ILCS 5/24-1.2(a)(2) (West 2012)). He was sentenced to terms of imprisonment of 105
years, 7 years, and 15 years, respectively. On appeal, the defendant contends that his convictions should be reversed, and his case remanded for a new trial because: (a) the trial court erred in denying his motion to suppress statements he made during the first of three custodial interrogations after he unequivocally invoked his right to counsel, and (b) the defendant's trial counsel was ineffective in that he failed to seek to suppress other statements made during the first and third interrogations, where detectives continued to question the defendant after he invoked his right to remain silent. The defendant also contends that his conviction for aggravated unlawful use of a weapon must be vacated because the statute creating the offense is facially unconstitutional. Finally, the defendant claims that he is entitled to one additional day of pretrial detention credit against his sentence. For reasons that follow, we vacate the aggravated unlawful use of a weapon conviction and sentence; and we reverse the convictions for first degree murder and aggravated discharge of a firearm, and remand this cause for a new trial on those charges.
¶ 3 BACKGROUND
¶ 4 On May 17, 2013, Brittany Andrews died from a single gunshot wound to the head. Brittany and the defendant were alone in the parking lot of a retail shop when the shooting occurred. The defendant was taken into custody that evening, and questioned extensively over the next three days. On May 20, 2013, the defendant was formally charged with two counts of first degree murder (counts I and II), and one count of aggravated unlawful use of a weapon (count III). Subsequently, the State filed an amended information, adding a separate count of aggravated discharge of a firearm, based on an incident that occurred several hours before the shooting on May 17, 2013
(count IV). The case proceeded to trial by jury on February 4, 2014, but ended in a mistrial. The retrial began on March 10, 2014. During the second trial, the State called dozens of witnesses, and offered forensic and documentary evidence, including cell phone records, surveillance video, and interrogation videos. Given the nature of the issues raised, we will present an overview of the evidence adduced at trial, rather than an exhaustive summary, followed by a more detailed account of the custodial interrogations.
¶ 5 The Shooting Incident
¶ 6 On the morning of May 17, 2013, the defendant picked up his girlfriend, Brittany Andrews, in a car he had borrowed from Allie Ortner. The defendant and Brittany purchased beer and whiskey from the Liquor Barrel, returned the car, and spent the early afternoon drinking together at the defendant's residence. At 3 p.m., the defendant and Brittany went to Mac's Circle K to buy more beer and cigarettes. While inside the store, Brittany began to argue with three young women. The argument became heated, attracting the attention of store employees. Some of the employees who witnessed the argument testified that Brittany appeared to be very angry and jealous. After a few minutes, the three women left the store. Brittany and the defendant completed their purchases, and also exited the store. Once outside, they met Brittany's brother, Caleb Forby, and several of his friends. As the group chatted in the parking lot, the defendant took a revolver out of his pocket, and showed it to Caleb. At some point, the defendant fired one shot into the ground. The bullet struck the ground in the area near where Caleb was standing. Caleb and his friends quickly walked away. The defendant and Brittany returned to the defendant's home.
¶ 7 Later that evening, Brittany and the defendant went to a bar called The Joker's Den. The bar was equipped with video cameras providing surveillance both inside and outside the premises. The digitally recorded surveillance video, along with data from the defendant's cell phone records, provided some information regarding the interactions of Brittany and the defendant that evening. According to the video, the defendant and Brittany arrived together at 8:48 p.m. The defendant and Brittany consumed alcohol, smoked cigarettes, and played pool for approximately 1 hour and 40 minutes. The video showed that Brittany used both hands to smoke and drink, but she appeared to use only her left hand to guide the pool cue. Brittany's mother, Dorothy Goen, testified that her daughter was right-handed.
¶ 8 While the defendant and Brittany were inside the bar, the defendant exchanged text messages with Allie Ortner. The defendant had dated both Brittany and Allie at various times in the past. At approximately 10:15 p.m., the defendant went to the men's room. According to the defendant's cell phone records, the defendant called Allie's cell phone at 10:15 p.m., and there was a four-minute connection. The defendant's cell phone records also revealed four missed calls from Brittany during this four-minute period. When the defendant returned from the restroom, Brittany was visibly upset. The two began to argue. During the argument, the defendant pulled out his cell phone, dialed Allie's cell number, and handed the phone to Brittany. The phone conversation was brief. Brittany then left the bar, and the defendant followed her outside. The two stood in the bar's parking lot. They appeared to be arguing.
¶ 9 At 10:28 p.m., a silver car pulled up across the street from the bar. Allie exited from the passenger's side of the vehicle, and walked toward Brittany and the defendant. The three appeared to talk for a short time, and then Brittany and Allie began pushing each other. They fought until the defendant separated them. Allie left immediately. Brittany went back into the bar, retrieved her personal items, and exited. She crossed the street, and walked onto the parking lot of Vickee's Card Shop, a retail business near The Joker's Den. The defendant followed Brittany across the street, and the two were soon out of range of the bar's surveillance cameras.
¶ 10 Moments later, a group of four people, who were walking to another bar near the card shop, heard a loud noise that sounded like a "pop," or a "firecracker." All four testified that they heard a woman yell, "stupid mother," or "stupid mother***" just before the "pop." During cross-examination, however, two of the witnesses admitted that they had not included this fact in the written statements they provided to police investigators. Upon hearing the "pop," the group of four ran toward the card shop parking lot. One of the four, Jesse Willis, testified that he saw the defendant "cradling" a woman as she fell to the ground. The others testified that they came up shortly after Jesse, and saw the defendant leaning over a woman lying on the ground. As the four approached the defendant, the defendant shouted, "My girlfriend shot herself." He repeatedly begged them to call 911. One of the four, Jessica Duncan, called for emergency assistance. A recording of the 911 call was admitted into evidence, and played for the jury. The defendant can be heard in the background, shouting for someone to call 911.
¶ 11 At approximately 10:30 p.m., Benton police officer Ronald Willis was dispatched to Vickee's Card Shop. He was the first officer to arrive on the scene. When Officer Willis exited his patrol car, he observed a woman lying on her back in the parking lot, and the defendant bending over her. Officer Willis also saw four other people standing nearby. As Officer Willis approached, the defendant identified himself as the woman's boyfriend. The defendant stated that the woman shot herself, and she needed help. Officer Willis observed a revolver near the injured woman's feet. He positioned himself between the weapon and the group of people, and ordered everyone to stand against the wall of the card shop. The defendant initially complied with the officer's order, but became increasingly agitated and upset that no one was attending to Brittany. Officer Willis testified that the defendant was uncooperative and appeared to be intoxicated, and that the defendant began yelling at Officer Willis to help Brittany. When additional officers arrived, the defendant was arrested for obstructing a peace officer, and transported to the Franklin County Sheriff's Department.
¶ 12 Paramedics arrived and quickly evaluated Brittany. They initiated CPR and transported her to the hospital. Brittany was pronounced dead at 11:20 p.m. An autopsy revealed that a bullet entered Brittany's left temple, traveled up and back through her brain, and exited through the right temple. The cause of death was a gunshot wound to the left temple.
¶ 13 The Forensic Evidence
¶ 14 As part of the investigation, crime scene technicians collected evidence for analysis. During the trial, the State presented several forensic scientists from the Illinois
State Police Crime Lab to discuss the significance of the evidence collected. DeWayne Morris, a bloodstain pattern analyst, testified that blood stains on the defendant's shirt and jeans matched Brittany's DNA. Morris stated that some of the stain patterns showed that blood was projected onto the defendant's clothing, that the blood would have projected in an arc from Brittany's head, and would not have traveled far, and that either Brittany or the defendant or both were moving when the blood landed on the defendant's clothing. Eric Corey, a forensic biologist and DNA analyst, testified that he recovered a mixed DNA profile from the revolver. After analyzing the DNA, he concluded that Brittany could not be excluded as the major contributor to the DNA profile, and that the defendant could not be excluded as the minor contributor to that profile. Lisa O'Daniel, a specialist in fingerprint examination, testified that she recovered a thumbprint from the right side of the revolver found at the scene, and that the print matched Brittany's left thumbprint. Melody LeVault, a specialist in trace evidence, testified that hairs discovered on the revolver were consistent with Brittany's hair. Ellen Chapman, also a trace evidence specialist, testified that gunshot residue was recovered from Brittany's left hand, but none was detected on her right hand.
¶ 15 The State also called Dr. James Jacobi, the forensic pathologist who performed the autopsy on Brittany's body. Dr. Jacobi opined that the manner of death was homicide, not suicide. He supported his opinion based on four factors. Initially, he stated that in his experience, a self-inflicted gunshot wound to the left temple was extremely rare. In his career, he could only recall having seen one suicide with a left-sided wound. Next, Dr. Jacobi testified that in his opinion, the gun was fired at a loose contact angle to the left
temple, rather than in direct contact with the skin, as is often found in suicides. Third, he found that the proximity of the entry wound to the eye was inconsistent with suicide. Finally, he relied upon a finding in the coroner's report that indicated that the shooting happened in a "public gathering," which is also uncommon with suicides.
¶ 16 During cross-examination, Dr. Jacobi acknowledged that he had not reviewed the forensic reports or reports from the crime scene investigation. Dr. Jacobi did not know that Brittany's hair, DNA, and left thumbprint were found on the revolver. He did not know that gunshot residue was recovered from her left hand. Dr. Jacobi testified that he was unaware whether Brittany was left or right-handed. Likewise, he was unaware that the shooting happened in a public parking lot, rather than in a "public gathering." Dr. Jacobi testified, however, that these facts would not have affected his conclusion that the manner of death was homicide.
¶ 17 The defendant called Dr. Jane Turner, a forensic pathologist, who also testified regarding the manner of death in this case. Dr. Turner concluded that the manner of death was either inconclusive or suicide. Dr. Turner testified that she reviewed Dr. Jacobi's report, the crime scene photographs, autopsy photographs, toxicology and laboratory reports, and other investigative reports, in formulating her opinion regarding the manner of death. She testified that none of the four factors relied upon by Dr. Jacobi, taken individually or as a whole, were sufficient to conclude that the manner of death was homicide. She testified that a loose-contact entry wound to the left temple, regardless of its proximity to the individual's eye, was not uncommon in suicides. She further testified that single gunshot wounds were uncommon in homicides. Dr. Turner also testified that if
she had received the additional forensic information that gunshot residue was found on Brittany's left hand, and that Brittany's hair, DNA, and left thumbprint were found on the gun, she would have found that the manner of death was "more likely, suicide, self-inflicted gunshot wound."
¶ 18 The Custodial Interrogations and the Motion to Suppress
¶ 19 Benton police investigators Chris Funkhouser and Kyle Melvin were assigned to question the defendant. This was their first homicide investigation. During the initial 72-hour period following the defendant's detention, the defendant was questioned three separate times, totaling more than 7 hours. Each interrogation session was videotaped, and the audiovisual content was recorded on a digital video disc (DVD).
¶ 20 The video of the first interrogation began at 11:31 p.m., on May 17, 2013, and ended at 1:35 a.m., on May 18, 2013. Throughout the first 38 minutes of the recording there is no audio accompanying the video. The trial court had directed the parties to redact the sound from this portion and other portions of the recordings, pursuant to its rulings on the defendant's motion to suppress. The first 38 minutes of soundless video show the defendant kicking over a table, falling out of his chair, lying on the floor, and thrashing around. At one point, as officers were escorting the defendant to the bathroom, the defendant appeared unsteady and unable to walk on his own. At 12:03 p.m., Detective Melvin placed a trash can in front of the defendant, as if the defendant was about to vomit.
¶ 21 The audio was restored at 12:09 a.m. At this point, Detective Funkhouser began to read a "Statement of Rights" to the defendant. Detective Funkhouser and Detective
Melvin testified that they did not begin to read the "Statement of Rights" until they believed the defendant was "coherent enough" to understand the warnings. The video shows that the defendant orally waived his rights, but he did not sign the form. Minutes after the defendant verbally waived his rights, he began hyperventilating and sobbing with his head in his hands. The defendant's speech was slurred, and he appeared intoxicated and disoriented.
¶ 22 During this initial interrogation, the defendant repeatedly said that he did not know why he was at the police station, or why he had blood on him. When the officers explained that Brittany had been shot, the defendant stated that he could not remember the moments in which Brittany was shot. The defendant stated that he remembered drinking at The Joker's Den, Brittany fighting with Allie in the parking lot, he and Brittany walking away from the bar, and being arrested. The defendant also stated he knew nothing about the gun that was found near Brittany's body.
¶ 23 At 12:22 a.m., the defendant told the officers: "Well, then you need to put me in the cell, because I'm fixin to snap ..." The officers did not ask the defendant if he wanted to terminate the interview. Instead, they continued to question the defendant. The defendant continued to ask why he was at the police station. He often told the officers that he would tell them what he could remember, but that he would not lie. At 12:30 a.m., the defendant stated: "Well I'll tell you what, bud. Anything you want to know. What I remember, I'll tell you." At 12:31 a.m., both officers exited the room, and the defendant laid down on the ground for the next three minutes. Upon the return of Detectives Funkhouser and Melvin, the defendant told them: "Ya'll need to get me to the hospital,
and let me ... go alright. You guys got 72 hours to ... hold me for whatever ... reason you got to. What did I do?" At 12:35 a.m. the defendant stated: "So, either you all can charge me, or let me ... go, because I haven't done a god*** thing." At 12:35 a.m., the defendant said: "Ok, Funkhouser ... Yep, I was drunk. Maybe I did resist arrest. If you wanna book me for resisting arrest, book me for it." At 12:36 a.m., the defendant told the officers: "If ya'll want to arrest me, arrest me, otherwise, let me f*** go, because I don't know what I done. I don't know what I'm here for..."
¶ 24 At 12:44 a.m., the following exchange occurred:
[DEFENDANT]: All I got to say man. I don't know why the f*** I'm here. One minute ya'll tell me ... the girl I love is shot ... How is she by the way?
[FUNKHOUSER]: They told me she wasn't doin' good.
[DEFENDANT]: Not doin' good? Ya'll need to ... charge me or let me f*** go, bub. For real, cause I gotta go ... to the hospital or wherever she's at to find out.
[FUNKHOUSER]: Well let me ...
[DEFENDANT]: Are you gonna charge me?
[FUNKHOUSER]: Let him go make a phone call, see how she's doing, okay?
[DEFENDANT]: Yeah, I don't think you guys understand. Either you charge me, or let me go, or give me a lawyer, or whatever you gotta do because everybody keeps tellin me that she's shot or whatever you tell me she ain't doing good. Where the f*** does this come out, in from . . .
¶ 25 The officers did not ask the defendant if he was requesting counsel. Instead, they continued the conversation. At approximately 1:02 a.m., the defendant twice stated that
he wanted to be returned to his cell. When the officers continued to press the defendant, stating that they wanted to find out his side of the story, the defendant again asked to be returned to his cell, and left alone. The officers ignored the repeated requests of the defendant, and the questioning persisted. The defendant repeatedly stated that he could not remember what had happened to Brittany. At 1:32 a.m., the officers informed the defendant that Brittany had died. Upon hearing that Brittany had died, the defendant began to shake and cry. He refused to be placed in handcuffs before being returned to his cell. At that point, a deputy used a Taser gun to subdue and handcuff the defendant. The first period of interrogation ended at 1:35 a.m.
¶ 26 The defendant was interrogated a second time on May 18, 2013. This video shows that the second period of interrogation began at 4:45 p.m., and concluded at 8:27 p.m. The video opens with the two detectives entering the interrogation room. As Detective Funkhouser began to read the "Statement of Rights" form aloud, the defendant asked what he was charged with. Detective Funkhouser told the defendant that he was charged with interfering with a police officer and aggravated assault on a police officer. Detective Funkhouser read the defendant his rights, and asked the defendant if he understood these rights. The defendant replied: "No, man. How am I being charged with that?" Detective Funkhouser stated that he would explain what was on the form, and if the defendant understood, he should sign and initial the document. Detective Funkhouser handed the "Statement of Rights" form to the defendant, but did not further explain it. The defendant read and initialed the form, while questioning the fairness of being charged with assault.
¶ 27 During this second period of interrogation, the defendant again stated that he could not remember the moment during which Brittany was shot. Initially, the defendant denied any knowledge of the gun used in the shooting, but later admitted to having purchased the gun several days earlier. During this session, the officers repeatedly discussed the impact of Brittany's death on her family, and stated that the family would have to put Brittany in the ground without knowing what had happened. The defendant told the officers that Brittany shot herself. He asked the officers several times to swab his hands for gunshot residue. He also told the officers that they should test Brittany's hands for gunshot residue. During this session, the officers made references to prior incidents of domestic violence between the defendant and Brittany, including a reference to the defendant breaking Brittany's nose with the defendant's elbow.
¶ 28 During this second interrogation, the defendant repeatedly stated that he was unwilling to speak further. For example, the defendant stated, "There ain't nothing else for us to talk about, cause you're just gonna keep asking the same questions." (17:20:30); "I'm done talking to you." (19:28:02); "Done. Go with the evidence. You're going to find out, I did not shoot her." (19:28:49); "There ain't nothing else to talk about. You got the truth. I said what I had to say. You guys take it from there. Let the evidence prove it." (19:57:28). The second interrogation ended at 8:28 p.m.
¶ 29 The third period of interrogation began at 2:04 p.m. on May 20, 2013, and ended at 3:26 p.m. that day. Officer Melvin read the defendant a "Statement of Rights," which the defendant signed. About 10 minutes into the interview, the officers stated that they believed the defendant was carrying the gun on the evening Brittany was shot, and they
wanted the defendant to explain whether he shot Brittany as "a cold-blooded thing" or as "an accident or something." Throughout the interrogation, the defendant insisted that he did not hurt Brittany. For example, at 2:13 p.m., the defendant stated: "There ain't nothin' else to talk about, cause ya'll are trying to make me think I did something I didn't. You guys can put me back in my cell ..." The officers then brought up prior instances of domestic violence, and told the defendant that he was facing potential life sentences. At 2:25 p.m., the defendant stated: "There ain't nothing else to talk about, bud ... I don't have nothing else to say to you man. Nothing. I told you what I remember. You keep thinking that talking is going to change what I remember. It don't." One minute later, the defendant continued: "Just put me back in my cell, cause we're not getting nowhere." At 2:40 p.m., the following exchange occurred:
[DEFENDANT]: Dude, you keep saying the same s***. Just quit talking to me. I don't care.
[FUNKHOUSER]: Donny, you're at a crossroad right now.
[DEFENDANT]: Yeah, I'm at a crossroad, I'm going to prison. I'll go to prison, cause I'm not going to sit here and debate something you guys are trying to force me to remember, when I don't. So take me back to my cell, and give me my life sentence ... I can't tell you nothing else.
At 2:52 p.m., the defendant asked:
"Anything else, I can't help you with. So, you guys keep talking amongst yourselves. I'm done. I don't know what it is you're trying to get me to say, or wanna hear. But I can't tell you nothing but what I remember up here, and I told
you all that, so State's Attorney, you, anybody else, they can do whatever they want. Take it and run with it. That's all there is. Is that all we got here? Can I go back to my cell?"
¶ 30 At this point, Detective Funkhouser left the room. Detective Melvin then leaned forward, to within a few inches of the defendant, and spoke to him for several minutes, but the detective's words were inaudible. The defendant did not respond to Melvin. When Detective Funkhouser returned, the defendant immediately asked to be returned to his cell. Despite this request by the defendant, and several additional requests to be returned to his cell, the questioning continued. The defendant then sat silently for 11 minutes, while the officers continued their efforts to converse with, and question, the defendant. At 3:16 p.m., the defendant again asked: "Can I go back to my cell now?" After a brief exchange, the defendant told the officers: "I'm just going to go back to not talking." The officers persisted. The defendant answered each question by asking: "Can I go to my cell now?" The interview ended at 3:26 p.m. The final exchange was as follows:
[DEFENDANT]: Can I go back to my cell?
[FUNKHOUSER]: You say that you never would hurt her.
[DEFENDANT]: I wouldn't. Can I go back to my cell? I thought I had a right to end this interview any time I wanted.
[FUNKHOUSER]: Sit tight for a second, I'll be right back. <exits> ... <re-enters> Stand up Donny. Put your hands behind your back.
¶ 31 The defendant asked to be put back in his cell at least 14 times during the first period of interrogation, and 22 times during the third period of interrogation. After each
request, the officers continued questioning the defendant. The defendant also made roughly two dozen statements to the effect that he did not have anything more to say, that there was nothing else to talk about, that he would not say another word, and that they should quit talking to him and leave him alone. The questioning by the officers did not cease in response to any of these statements.
¶ 32 The record shows that the State filed a motion in limine, asking the trial court to examine the three recorded interviews of the defendant, and to enter an order directing the State to redact any references to a polygraph examination and defendant's felony convictions and sentences in a prior case. During a hearing on the State's motion, the trial court agreed to view the recordings with counsel. The court then made a docket entry, indicating that the State and the defense had reached an agreement on certain redactions, that the State would prepare a redacted version, and that any objections to the redacted version would be taken up by the court at a future hearing. Subsequently, the defendant's attorney filed a motion to suppress. According to the record, the defendant's attorney sought to suppress only the statements made by the defendant during the initial interrogation period. Defense counsel argued that the defendant was not initially advised of his Miranda rights; that the defendant was unconscious for a period of time, and was therefore unable to knowingly waive his Miranda rights; and that at 12:45 a.m., the defendant requested legal counsel, and refused to answer any further questions. The defendant's motion to suppress was called for a hearing. At the outset, defense counsel advised the court:
"As it relates to this, our motion to suppress, I'd like to clarify that we are only moving to suppress the statements and the audio in Exhibit A, the initial interview. And that's how I phrased it, as the initial interview. So what took place at B, C, and D [the second and third periods of interrogation] are not at issue in this hearing. We're not requesting in any way, any relief as it relates to those, just for expediency of time."
¶ 33 Following the presentation of witnesses and arguments of counsel, the trial court took the motion under advisement. After reviewing the video of the initial interrogation, and considering the testimony of the witnesses, the court issued its order, granting in part, and denying in part, the defendant's motion to suppress. The court found that the detectives advised the defendant of his Miranda rights at 12:10 a.m., that the defendant was alert enough at that time to understand what he was being told, that the defendant voiced an understanding of those Miranda rights, and that the defendant appeared willing to speak with the detectives, after being advised of those rights. The court ordered that any statements made by the defendant prior to the advisement of his rights at 12:10 a.m. on May 18, 2013, would be suppressed. The court next considered the defendant's motion to suppress all statements made during the initial interrogation, after the defendant invoked his right to counsel. The court found that the defendant's request for counsel was not free of ambiguity, and that the defendant did not indicate that he wished to stop the interrogation. The court denied the defendant's motion to suppress the statements made after 12:10 a.m. on May 18, 2013.
¶ 34 Pursuant to these rulings, the trial court directed the parties to redact the audio from the first 38 minutes of the first recorded interrogation. Prior to playing the redacted versions of the videos, the jury was instructed that the audio had been redacted pursuant to pretrial rulings made by the trial court, and that the jury should make no inferences, or draw any conclusions from the redacted audio.
¶ 35 ANALYSIS
¶ 36 On appeal, the defendant initially contends that the trial court erred in denying his motion to suppress statements made during the first custodial interrogation, where the police officers ignored the defendant's unambiguous request for counsel and continued to question the defendant in violation of his right to counsel. The defendant argues that his statement: "Either you charge me, or let me go, or give me a lawyer," made at 12:45 a.m. during the initial interrogation, was a clear and unambiguous request for counsel, and that all statements made thereafter should have been suppressed. The defendant also argues that the evidence at trial was closely balanced, and that the trial court's error was unfairly prejudicial, requiring a reversal of his convictions, and a new trial.
¶ 37 The State argues that the aforesaid statement did not constitute an unambiguous invocation of the defendant's right to counsel because the request for counsel was made in the alternative. Therefore suppression was not warranted. The State further argues that even if the trial court erred in denying the motion to suppress statements made after the defendant's request for counsel or defendant's counsel was ineffective in failing to seek suppression of his statements, the evidence of defendant's guilt was overwhelming, and the claimed errors could not have caused the guilty verdicts.
¶ 38 When considering a trial court's ruling on a motion to suppress evidence, the reviewing court applies a two part standard of review. People v. Luedemann, 222 Ill. 2d 530, 542, 857 N.E.2d 187, 195 (2006). First, a trial court's findings of historical fact will be upheld unless they are against the manifest weight of the evidence. Second, the trial court's ultimate legal ruling regarding whether suppression is warranted is reviewed de novo. Luedemann, 222 Ill. 2d at 542. In this case, the defendant's statements were recorded, and so the relevant facts regarding the defendant's statements are not in dispute. Thus, we review only the trial court's determination that suppression was not warranted, and our review is de novo. People v. Schuning, 399 Ill. App. 3d 1073, 1081, 928 N.E.2d 128, 136 (2010); People v. Howerton, 335 Ill. App. 3d 1023, 1025, 782 N.E.2d 942, 944 (2003).
¶ 39 A criminal defendant has a constitutional right to counsel at all custodial interrogations. U.S. Const., amends. V, XIV; Ill. Const. 1970, art. I, § 10; People v. Flores, 315 Ill. App. 3d 387, 392, 734 N.E.2d 63, 67 (2000). An individual who is subject to a custodial interrogation must be informed of his right to remain silent and his right to counsel. Miranda v. Arizona, 384 U.S. 436, 444 (1966); In re Christopher K., 217 Ill. 2d 348, 376, 841 N.E.2d 945, 962 (2005). If an individual requests counsel at any time during the interrogation, the individual may not be questioned further until counsel is made available to him, unless the individual initiates further communications or conversation with the police. Edwards v. Arizona, 451 U.S. 477, 484-85 (1981); In re Christopher K., 217 Ill. 2d at 376. This rule is designed to prevent police from badgering
a defendant into waiving his previously asserted request for counsel. Davis v. United States, 512 U.S. 452, 458 (1994).
¶ 40 To determine whether statements made during a custodial interrogation may be used against the accused, a court must decide whether the accused actually invoked his right to counsel, and if so, whether he initiated further communications with police so as to knowingly and intelligently waive his previously asserted right. In re Christopher K., 217 Ill. 2d at 376. To invoke the right to counsel, an individual must unambiguously express a desire for the assistance of counsel in a clear enough manner that a reasonable officer in the circumstances would understand that the individual wants an attorney present. Davis, 512 U.S. at 459; In re Christopher K., 217 Ill. 2d at 380. Courts must use an objective inquiry, which at a minimum requires some statement that reasonably can be construed as an expression of a desire for counsel. In re Christopher K., 217 Ill. 2d at 380. If the defendant's reference to an attorney is ambiguous, or equivocal, such that "a reasonable officer in light of the circumstances would have understood only that the suspect might be invoking the right to counsel," the questioning does not need to stop. (Emphasis in original.) Davis, 512 U.S. at 459. In other words, the defendant must articulate his desire in a clear enough manner that a reasonable officer, in the circumstances, would understand the statement to be a request for an attorney. Davis, 512 U.S. at 459; Schuning, 399 Ill. App. 3d at 1082.
¶ 41 In this case, the video establishes that the defendant requested counsel at 12:45 a.m. on May 18, 2013. The defendant's request for counsel was communicated directly to the detectives, and was not made with any hint of hesitation or indecisiveness. Schuning,
399 Ill. App. 3d at 1086; Howerton, 335 Ill. App. 3d at 1026-27. The defendant's statement was clear enough that a reasonable officer should have understood the statement to be a request for an attorney, and yet it was ignored. The detectives continued to engage the defendant in conversation, as the defendant repeatedly asked to be charged or let go. After reviewing the video, we find that the defendant's request for counsel was unequivocal and sufficiently clear that the officers should have understood that the defendant was expressing his desire for counsel. Therefore, we find that the statements made by the defendant during the first interrogation, after he invoked his right to counsel (from 12:45:26 a.m. through the end of the first interrogation), should have been suppressed as a result of the Miranda violation. The trial court erred in denying the defendant's motion to suppress these statements.
¶ 42 Additionally, we do not find that this error was harmless beyond a reasonable doubt. People v. Wilkerson, 87 Ill. 2d 151, 157, 429 N.E.2d 526, 528 (1981). The evidence in this case was closely balanced. There were no independent eyewitnesses to the shooting, and the forensic evidence was mixed. The expert forensic pathologists reached opposite conclusions regarding the manner of death. We also note that during deliberations, the jury requested and was allowed to review the video from the first interrogation. The jury deliberated for two full days before reaching a verdict. During that period of deliberation, the jury twice informed the court that it was unable to reach a verdict after four votes, and that it was equally divided. Thus, the statements made by the defendant might have contributed to the conviction. This is not a case where the evidence of the defendant's guilt was overwhelming.
¶ 43 After reviewing the record, we find that the trial court erred in denying the defendant's motion to suppress statements made during the first interrogation, after the defendant invoked his right to counsel, and the error was not harmless beyond a reasonable doubt. In addition, we find no double jeopardy impediment to a new trial. People v. Olivera, 164 Ill. 2d 382, 393, 647 N.E.2d 926. 931 (1995). Accordingly, we reverse the defendant's convictions for first degree murder (counts I and II) and aggravated discharge of a firearm (count IV), and remand the cause for a new trial on those counts. We further direct that upon remand, the statements made by the defendant during the first interrogation, after he invoked his right to counsel (from 12:45:26 a.m. through end of the first interrogation), should be suppressed in the State's case in chief.
¶ 44 As part of his first issue on appeal, the defendant also argued that his convictions should be reversed and a new trial ordered because his trial counsel was ineffective for failing to seek suppression of portions of the first and third interrogations where officers continued questioning the defendant after he unambiguously invoked his right to remain silent, and portions of the second and third interrogations, where officers made numerous references to the decedent's family, and referred to the defendant as a "monster," "mobster," and "cold-blooded killer."
¶ 45 Given our determination that the defendant is entitled to a reversal of his convictions and a new trial, we decline to address the issues of ineffective assistance of counsel raised by the defendant. In this case, the underlying issues regarding the circumstances surrounding the second and third interrogations, and whether the defendant was subjected to questioning after invoking his right to remain silent, were never
presented to the trial court, and so the court has never had the opportunity to make factual findings and legal determinations on those issues. The facts and the circumstances surrounding the second and third interrogations have not been developed in the trial court. A court of review should not speculate on what factual findings the trial court might make should those issues be raised upon remand. People v. Harris, 2012 IL App (1st) 100678, ¶¶ 64-66, 977 N.E.2d 811. We express no opinion regarding these underlying issues, as they are matters for the trial court, if raised by the defendant on remand.
¶ 46 The defendant also contends that his conviction for aggravated unlawful use of a weapon must be vacated because the statute creating the offense is facially unconstitutional. The State concedes the defendant's argument. In People v. Burns, 2015 IL 117387, 79 N.E.3d 159 the Illinois Supreme Court found that the offense of aggravated unlawful use of a weapon, as set forth in 720 ILCS 5/24-1.6(a)(1), (a)(3)(A) (West 2008), is facially unconstitutional, without limitation. Therefore, we vacate the defendant's conviction and sentence for aggravated unlawful use of a weapon.
¶ 47 Finally, the defendant claims that he is entitled to one additional day of credit for pretrial incarceration, and requests that the mittimus be corrected to reflect this additional day's credit. The State has no objection to the defendant's request. Given that we have reversed defendant's convictions and sentences, the defendant's request is moot. However, if upon retrial, the defendant is convicted and sentenced, he would be entitled to request, and would receive, credit for pretrial detention from May 17, 2013.
¶ 48 CONCLUSION
¶ 49 Accordingly, we vacate the defendant's conviction and sentence for aggravated unlawful use of a weapon; and we reverse the defendant's convictions for first degree murder and aggravated discharge of a firearm, and remand the cause for a new trial on those charges, consistent with this decision.
¶ 50 Vacated in part; reversed in part, cause remanded with directions.