Case Information
*1 I LLINOIS O FFICIAL R EPORTS Appellate Court
People v. Harris
,
District & No. First District, Fourth Division
Docket No. 1-10-0678
Rule 23 Order filed March 29, 2012
Rule 23 Order
withdrawn August 24, 2012
Opinion filed August 30, 2012
Held Defendant’s conviction for felony murder predicated on armed robbery was reversed and the cause was remanded for a new trial where the ( Note: This syllabus failure to videotape her initial custodial interrogation violated section constitutes no part of 103-2.1 of the Code of Criminal Procedure and rendered her inculpatory the opinion of the court but has been prepared statements presumptively inadmissible and the statements she made after by the Reporter of subsequently invoking her right to counsel also should have been Decisions for the suppressed. convenience of the
reader. )
Decision Under Appeal from the Circuit Court of Cook County, No. 07-CR-11841; the Hon. James Linn, Judge, presiding. Review
Judgment Reversed and remanded.
Counsel on Michael J. Pelletier, Alan D. Goldberg, and Benjamin Overby, all of State Appellate Defender’s Office, of Chicago, for appellant. Appeal
Anita M. Alvarez, State’s Attorney, of Chicago (Alan J. Spellberg and Sarah L. Simpson, Assistant State’s Attorneys, of counsel), for the People.
Panel PRESIDING JUSTICE LAVIN delivered the judgment of the court, with
opinion.
Justices Fitzgerald Smith and Sterba concurred in the judgment and opinion.
OPINION
Following a bench trial, defendant Annette Harris was found guilty of felony murder predicated on armed robbery and was sentenced to 20 years’ imprisonment. Defendant raises three contentions on appeal. First, defendant contends police failed to videotape her initial custodial interrogation in violation of section 103-2.1 of the Code of Criminal Procedure of 1963 (Code) (725 ILCS 5/103-2.1 (West 2008)), rendering her inculpatory statements presumptively inadmissible. She argues the court therefore erred in denying her motion to suppress the statements. Defendant also contends the trial court erred in denying her motion to suppress statements made later during her incarceration because although she had invoked her right to counsel, the custodial interrogation did not cease. Defendant finally argues the State failed to prove her guilty beyond a reasonable doubt of the predicate felony of armed robbery and thus her murder conviction cannot stand. Defendant also requests that we correct the mittimus to reflect her felony murder conviction rather than intentional first-degree murder. I. PROCEDURAL BACKGROUND Defendant, age 39, was arrested, then charged with the first-degree murder and armed
robbery of Errland “Sweets” Willams, age 69. In early April 2007, police discovered the victim, beaten and bloody, with a clothing-iron cord wrapped around his neck, in the basement of his two-flat apartment at 7446 South Champlain Avenue, Chicago. Williams, who was dependent upon social security, was known to be generous with this meager income, consorted with prostitutes and previously had been the victim of several robberies of this income. The State’s case rested almost entirely on defendant’s inculpatory statements made to detectives over the course of several weeks. Detectives questioned defendant at a police facility from April 20-21, 2007. Defendant first indicated involvement in the crime on April 21. From April 30 to May 2, police again questioned defendant. On May 1 and 2, *3 defendant fully inculpated herself as Williams’ murderer.
¶ 4 Prior to trial, defendant filed a two-part motion to suppress that evidence. Defendant first
alleged that statements made during her initial April 20-21 detention were not videotaped,
in violation of section 103-2.1 of the Code. She alleged that, as a result, any inculpatory
statements made then and thereafter should be suppressed. As defendant noted, section 103-
2.1 provides that a statement of an accused made as a result of a custodial interrogation at
a police station or other place of detention is presumed inadmissible as substantive evidence
in a murder prosecution unless it is electronically recorded; all statements made thereafter
are also presumed inadmissible. 725 ILCS 5/103-2.1 (West 2008). Defendant added that the
State could not fulfill its burden of proving the statements voluntary and reliable. In part two
of defendant’s motion to suppress, she alleged that she had unambiguously invoked her
constitutional right to counsel during her later custodial interrogation, but this request was
not honored and the interrogation did not cease. This, she argued, violated
Miranda v.
Arizona
,
requisite custody under section 103-2.1. Detective Forberg testified that he proceeded to the crime scene at 7446 South Champlain on April 3, 2007, to investigate Williams’ death. Once there, he learned that a witness named Antoinette Briggs had found Williams dead and that both Briggs and several other witnesses had seen Williams with an unknown prostitute in the days before his death. Following this initial investigation, Detective Forberg learned that Briggs was actually
the defendant, Annette Harris, and, therefore, that it was defendant who had discovered Williams’ body. Various individuals from the neighborhood identified defendant as Williams’ companion and stated she had “a reputation for beating” Williams. A police department data report showed defendant as the named perpetrator of an offense against Williams. Detective Forberg began a 10-day search for defendant once he discovered defendant was
no longer at her last known address. On April 20, 2007, Detective Forberg found defendant at her friend Sam Coffey’s residence. Driving in an unmarked squad car, Detective Forberg transported defendant to Area 2 detective division headquarters for questioning regarding Williams’ death. Further details regarding the time and content of these interviews were revealed at trial and will be more fully set forth later in this opinion. For the purposes of the pretrial hearing on custody, Detective Forberg testified that he
did not believe defendant was handcuffed and further did not know if the car doors were locked. Upon arrival at Area 2, defendant was taken to an interview room, where the door was “probably” locked. Detective Forberg did not convey that defendant could decline to answer questions or was free to leave. He also did not offer at any time to return her to her friend’s residence. Defendant admitted she presented police with a false name because there was a warrant for her arrest for a probation violation. To Detective Forberg, this meant that he could not release defendant. When Detective Forberg confronted defendant regarding her *4 reported prior offense against Williams, she claimed it was a misunderstanding, but agreed to take a polygraph test.
¶ 10 In the same unmarked police vehicle, Detective Forberg transported defendant to a
polygraph facility located at 1819 Pershing Road. Again, he did not believe she was handcuffed. The polygraph examiner presented defendant with a consent form containing Miranda warnings, and defendant signed it. Next to each warning appears the letter, “y.” The examiner conducted the polygraph test without Detective Forberg present and asked defendant questions about Williams’ death. The test revealed “some deception” relating to defendant’s knowledge of the identity of Williams’ killer. According to Detective Forberg, the examiner told him that defendant then implicated her boyfriend Kevin O’Neil as the person who killed Williams. Following the polygraph, Detective Forberg relayed its results to defendant and questioned her about the events leading up to her discovery of Williams’ body. Defendant then implicated herself, O’Neil, and the aforementioned unknown prostitute, whom she identified as Adreana (also Adrina), and defendant stated she was to serve as the “lookout.” At this point, Detective Forberg terminated the interview. Detective Forberg testified that he had not recorded any of these interviews and had not advised defendant of her rights because she was merely a witness in the homicide investigation and not a suspect until she implicated herself. Following the close of this evidence at the motion to suppress, defense counsel argued
that section 103-2.1 of the Code rendered any inculpatory statements made during the April 20-21 interview inadmissible and therefore any statements made thereafter inadmissible, as well. Counsel argued defendant was in custody when she was transported to Area 2 for questioning and placed in a locked room with police aware of her outstanding warrant. He argued a reasonable person would not have felt free to leave. At this point, the trial judge noted that while there was no dispute defendant was in
custody for her pending probation violation, he was uncertain that one could say she was in custody for Williams’ murder. The State conceded defendant was in custody on the warrant, but argued defendant was not in custody for the murder because she was a mere witness, not a suspect, rendering the statute inapplicable in its view. Defense counsel responded the evidence suggested otherwise since the police were only
interested in what defendant had to say about the murder, not her probation violation, but most stridently maintained that whether defendant made the statement while in custody for murder or for the probation violation was of no moment because the statute prohibited admission of any statement “made as a result of a custodial interrogation” likely to elicit incriminating evidence. Counsel further argued the officer’s subjective view of the accused’s status was immaterial for determining custody. The court noted that polygraph examinations were “part of normal police investigations”
and, as in this case, “[n]ot every police facility has all of the equipment lined up.” The court then stated it was “at a loss to find [a] remedy.” The court noted that “[t]here may have been some indications that it should have been videotaped,” “[b]ut to suppress it outright for what I consider to be a non willful act is a remedy that’s never been done before.” The court stated it was not prepared to do so. The court noted that the defense was free to argue at trial about *5 the absence of a videotaped statement in order to attack the officer’s credibility. B. Motion to Suppress Part II: Invocation of Right to Counsel From April 30 to May 2, 2007, defendant was interrogated by police. Detective Forberg videotaped the interrogations and, prior to questioning defendant, advised her of her Miranda rights. The defense presented a video of defendant’s May 1, 2007, exchange with Detectives Forberg and Eberly and rested on the contents to prove defendant invoked her right to counsel. In the video, Detective Forberg entered the holding cell, apparently at defendant’s request. The following exchange then occurred:
“DEFENDANT: I was gonna say uh–is it possible if I can uh–have a few days to get an attorney.
DETECTIVE FORBERG: A what?
DEFENDANT: A few days to get an attorney.
DETECTIVE FORBERG: We can’t give a few days, no.
DEFENDANT: How long can I–
DETECTIVE FORBERG: Look, I’ll be right back in okay. Let me get rid of this ***.”
The video shows Detective Forberg exiting the holding cell and returning less than a minute later, accompanied by Detective Eberly. The exchange continued as follows:
“DETECTIVE FORBERG: Okay. Are, are you, are you requesting–were you requesting an attorney because if you are we’re done talking. Okay.
DETECTIVE FORBERG: I mean that’s it if you–
DEFENDANT: But I don’t know how I can call, make no call (inaudible) all my numbers at the county.
DETECTIVE FORBERG: Pardon?
DEFENDANT: All my phone numbers is at the county.
DETECTIVE FORBERG: Do you no longer want to answer questions? DEFENDANT: Yeah, I want to answer questions.
DETECTIVE FORBERG: Okay. That’s fine then.” Following this evidence, defense counsel argued that defendant had unequivocally requested counsel when she asked for a few days to obtain an attorney and the interrogation should have ceased then. He argued that because it did not, any statement made following defendant’s invocation of her right to counsel should be suppressed. The trial court found the police responded appropriately when they told defendant “a few
days” was too long to secure an attorney and then directly questioned her as to whether she wanted to have an attorney. The court found defendant voluntarily continued to answer questions. The court concluded defendant’s invocation of her right to counsel was ambiguous and police questioning that followed did not violate and denied the motion to suppress.
¶ 20 Defendant then waived trial by jury and the case proceeded to a bench trial. The State
presented the testimony of two crime scene witnesses and Detective Forberg, along with defendant’s videotaped statements.
¶ 21 C. Trial Evidence
¶ 22 1. Crime Scene Witnesses and Evidence ¶ 23 Angel Moffett testified that she knew Williams, defendant, and others living at 7446
South Champlain. Moffett testified that “lots of women,” including herself and defendant, would “come around” when Williams received his social security checks, then take Williams’ money and property. Around 3:30 p.m. or 4 p.m. on the afternoon of Williams’ death, as Moffett approached Williams’ apartment, a woman unknown to her opened the door and said Williams was sleeping. Moffett, however, had heard the two arguing, with the woman requesting money and Williams saying he already had given it to the woman. Moffett then encountered defendant and her boyfriend, O’Neil, outside, with the defendant exclaiming, “[n]o one is getting to Sweets today because we got this shit tied up,” causing O’Neil to nod with a smirk. Shirley “Penny” Williams, an admitted crack addict, testified next that she lived at 7446
South Champlain. Like Moffett, Shirley testified that defendant would pop in on days when Williams was paid social security and that she had seen Williams with the unknown woman shortly before his death. On the day in question, around 3:30 p.m. or 4 p.m., Shirley overheard defendant ask Williams for $10. When Williams denied having it, defendant said she knew he had received his check and yelled, “I want my money, bitch.” Shirley heard a smack, then saw Williams with a small cut below his eye. Williams obtained change for a $20 from O’Neil to give defendant and proceeded downstairs because he had “company” there. About an hour later, Shirley returned to the building, then heard defendant scream, “[t]hat
bitch killed Sweets!” O’Neil emerged from the basement and ordered Shirley to call the police. Shirley saw Williams lying on the bed with a pillow over his face, a cord by his neck, and blood smeared on his body and the wall. Shirley returned upstairs and saw defendant leaving and O’Neil running after her. The parties stipulated that Shirley omitted defendant’s altercation with Williams in her initial statement to the police. A postmortem examination revealed Williams’ cause of death was due to an assault and,
the manner of death, a homicide. Detectives later recovered in Williams’ bedroom a currency exchange receipt, dated April 3, 2007, at about 2 p.m., for a payout of $685 from the United States Treasury for social security. The parties stipulated that police also recovered an unwrapped condom, latex gloves, an unopened folding knife, and a clothing iron. They also stipulated that at the time of Williams’ death, he had a blood alcohol level around 0.37. 2. April 20-21 Interviews With Defendant Detective Forberg testified, as he had at the pretrial hearing, that he interviewed defendant on April 20, 2007, at Area 2 regarding Williams’ death. Detective Forberg added *7 the following details. The interview took place after midnight with both Detective Forberg and Detective Eberly present. Defendant stated that she found Williams lying on his bed with a bloody pillow over his face. Defendant removed the pillow, checked Williams’ pulse, then observed a cord wrapped around his neck, and screamed. Before discovering Williams, defendant said she had seen a light-complected, large, big-chested female on Williams’ bed.
¶ 29 A second interview took place around 4 a.m. At that time, defendant stated that she and
Williams had a special relationship, “were closer than most people believed,” and referred to herself as his “goddaughter.” Defendant speculated that the unknown woman had robbed and “knocked out” Williams, then fled the scene. Defendant also stated she had been smoking crack with O’Neil before discovering Williams’ body. Following the interview’s conclusion, the detectives attempted to locate the unknown woman.
¶ 30 A third interview took place around 7 a.m. At that time, the two detectives confronted
defendant about her “violent actions” in an unrelated case toward her friend Coffey. Defendant stated that she had reacted to Coffey’s unwanted sexual advances. They asked defendant to submit to a polygraph examination, and she agreed. The exam took place about 9 p.m. at 1819 Pershing Road.
¶ 31 A fourth interview took place about 1:30 a.m. on April 21, 2007, at 1819 Pershing Road.
Defendant admitted she served as the lookout while O’Neil and the unknown woman robbed Williams. She stated, however, that violence was not part of the plan, but O’Neil went “off- script” and struck Williams. At this point, detectives stopped the interview, and defendant was transferred to the Cook
County jail on her probation violation. On cross-examination, Detective Forberg acknowledged that defendant did not give written statements then and the interviews were not electronically recorded, although the police facilities were equipped with recording equipment. 3. April 30-May 2 Videotaped Interviews With Defendant As stated, from April 30 to May 2, detectives interviewed defendant regarding the
murder. These interviews were videotaped and presented to the court. Detectives first interviewed defendant on April 30 around 3 p.m. for 20 minutes and on
May 1 around 5 a.m. for about an hour. Defendant was twice advised of her rights and stated she understood. Defendant’s combined statements revealed the following. Defendant gave various and shifting accounts of what occurred after she arrived at Williams’ residence around 3 p.m. on the day in question. Defendant stated that both O’Neil and Adreana approached her with the plan to rob Williams, once he was drunk and asleep. Defendant stated that she saw O’Neil hit Williams “upside the head with the iron,” wrap the cord around Williams’ neck, and drag him. Adreana had in hand Williams’ pants, which defendant assumed contained his wallet. Adreana handed O’Neil “something and took out the door.” Defendant “panicked,” then started “hollering.” Defendant further stated that she did not receive “one dime” of money, which was split between O’Neil and Adreana. About 10 a.m. on May 1, as set forth above, defendant asked whether it was possible to have a few days to hire an attorney. About 7:30 p.m., defendant agreed to be interviewed by *8 the polygraph examiner, even though he did not have her hooked up to the machine. Defendant stated that she had lived with Williams for about three to five years and had sex with him a couple of times. Williams on one occasion had attacked her with a knife, but she “just *** threw him down” and left. Defendant further stated that Williams received money on the first of the month and about $900 in social security on the third. He paid $200 to $350 for rent. Defendant admitted having robbed Williams some four times in the past, but denied doing so on April 3. Defendant then asked that the interview stop because she did not like the questions. Around 10 p.m., defendant requested cigarettes and asked the polygraph examiner how
much time accidental murder carried, and a conversation ensued. The examiner, at one point, whispered: “[C]an I tell you a secret? I think you did it.” Defendant then admitted that she had accidentally killed Williams. Her combined statements to the polygraph examiner and Detectives Forberg and Eberly, who were called in, revealed that while drunk and high, defendant went to Williams’ bedroom to borrow $20. Williams requested some sexual activity, which defendant refused, and he went to get his knife. Defendant stated that she “just snapped,” reached for the “next thing,” which was the clothing iron, and beat Williams over the head with it, then wrapped the cord around his neck. Defendant stated that Williams had stabbed her before with a knife and she was afraid for her life. She stated that she only wanted to borrow money from Williams, but did not intend to kill him. About midnight on May 2, defendant gave her final inculpatory statement. Defendant
added that she had been on a three-day crack binge when she asked Williams to loan her $200. Defendant added that O’Neil knew she “was going to get the money” even before she initially entered Williams’ room. She had told him “I’m about to get Sweets,” and O’Neil responded, “yeah we can get him.” O’Neil then ushered Adreana out of Williams’ room before defendant entered. On entering, defendant again stated that Williams made sexual advances, she refused, and Williams stated, “bitch I’m about to kill you,” at which time defendant beat him with the clothing iron. Defendant washed the blood from her face and hands and placed her shirt in the garbage outside. She stated that once she realized what she had done, she panicked and left without money. Defendant then smoked crack with O’Neil but did not tell him what she had done. She later entered Williams’ room, feigned surprise, and yelled, “oh my God that bitch did kill Sweets.” Defendant stated that people in the house then came downstairs and observed Williams.
Everyone, including defendant, eventually returned upstairs, but O’Neil remained in the basement. Defendant said O’Neil “got the money” because she had told him where Williams “probably had hidden it,” which was likely under the mattress or the rug. Detective Forberg asked defendant specifically when she discovered that O’Neil had obtained the money. She responded, after they had returned from the police station because she used $250 at that time to buy five bags of crack, which they smoked for two days. Detective Forberg pressed, “[b]ut when did Kevin tell you that he had found the money and where he found it?” Defendant responded that O’Neil did not have to tell her, saying he would not have gotten the money from anywhere else. She also stated it was possible that O’Neil could have taken more than $250.
¶ 40 4. Trial Court’s Ruling
¶ 41 Following evidence and argument, the court found defendant guilty of count VII, felony
murder predicated on armed robbery, to merge with counts VIII and IX (murder and armed robbery, respectively). In so finding, the court relied almost exclusively on defendant’s inculpatory statements. The court noted it did not believe defendant had approached Williams with the intent of killing him, but rather that defendant wanted to take his money and “[a] negotiation of sorts took place,” and when defendant “realized that she wasn’t getting the money,” she grabbed the iron and beat Williams to death. The court determined that Williams, a “drunk old man,” did not pose a threat, and defendant was not in fear of her life. The court found defendant, who “was covering up her tracks,” decided to blame the murder on the other woman. The court further found that defendant relayed to O’Neil the location of the money, and “like vultures picking off pieces of property,” the money was taken and used for a long drug binge.
¶ 42 Defendant filed a motion for a new trial. She argued inter alia that her motion to suppress
was improperly denied based on violations of section 103-2.1 and . The court denied the motion for a new trial, and the case proceeded to sentencing, where defendant received a 20-year term of imprisonment. Defendant appealed. II. ANALYSIS A. Untaped Confession Defendant first challenges the lower court’s denial of her motion to suppress statements.
In determining whether a trial court has properly ruled on a motion to suppress, findings of
fact and credibility determinations made by the trial court are accorded great deference and
will be reversed only if they are against the manifest weight of the evidence.
People v. Slater
,
inadmissible under section 103-2.1 of the Code. Section 103-2.1 provides that any statement “made as a result of a custodial interrogation at a police station or other place of detention shall be presumed to be inadmissible as evidence against the accused” in a murder case unless it is electronically recorded. (Emphasis added.) 725 ILCS 5/103-2.1(b) (West 2008). If the trial court finds by a preponderance of the evidence that this provision was violated, the statute further provides that “any statements made by the defendant during or following that non-recorded custodial interrogation, even if otherwise in compliance with this Section, are presumed to be inadmissible.” 725 ILCS 5/103-2.1(d) (West 2008). Defendant argues she was subject to a custodial interrogation at Area 2 and at the initial polygraph office where her statements were given, but not recorded as required. Therefore, she argues her statements made then and thereafter should be presumed inadmissible. The State responds that defendant’s statements were not “made as a result of a custodial
interrogation,” thus rendering section 103-2.1 inapplicable. The State further contends, even if they were the product of a custodial interrogation, the statements were voluntary and *10 reliable. As a preliminary matter, we observe that the trial court determined defendant was in
custody on her probation violation and, further, that “[t]here may have been some indications that [defendant’s statement] should have been videotaped” under section 103-2.1. In apparent contradiction of these observations, the court declined to find that defendant was subject to a custodial interrogation under section 103-2.1. The court went on to state it was “at a loss to find [a] remedy” given the novel nature of the statute. The court further found that to the extent there was a violation of section 103-2.1, it was “nonwillful” because there was no recording equipment at the police facility. We disagree with the trial court’s analysis and conclusions in this specific regard.
Whether the police willfully intended to violate section 103-2.1 was not dispositive. The
dispositive matter was simply whether the police subjected defendant to a custodial
interrogation on April 20-21, thus triggering the requirement under section 103-2.1 that they
videotape her statement. Because the court’s findings suggest it found Detective Forberg
credible, we may address this matter in the first instance. See
Slater
,
in examining section 103-2.1 of the Code is to give effect to the legislature’s intent, the best
evidence of which is the statute’s plain and ordinary language. See
People v. Swift
, 202 Ill.
2d 378, 385 (2002). In addition to the statute’s plain language, we also may consider the
reason and necessity for the statute, the evils to be remedied, and the objects and purposes
to be obtained.
People v. Lucas
,
of the Governor’s Commission on Capital Punishment (Report), which recommended that
custodial interrogations of homicide suspects in police stations be videotaped in their entirety
so as to strengthen confidence in the “ultimate outcome of a capital case.” See Report, ch.
2, at 19-20 (Apr. 2002);
People v. Buck
,
setting requires an examination of the surrounding circumstances of the interrogation.
Slater
,
demonstrate that defendant was unquestionably subject to a custodial interrogation when she
made her initial inculpatory statement. The evidence shows that police picked defendant up
from her friend’s house around midnight on April 20, after searching for her for more than
a week, then transported her in an unmarked squad car to the police station and placed her
alone, without family or friends, in an interview room that was likely locked. See
People v.
Wheeler
,
police held defendant in continued custody on the probation violation and, at best, used this
custody to mask their intention to question her solely about the murder of Williams, a man
with whom defendant reportedly had a history of violence. Given the manner in which police
conducted the interrogation, we do not believe a reasonable person would have felt free to
terminate the encounter. See
Fields
, slip op. at 13 (when a prisoner is questioned, the
determination of custody should focus on all of the features of the interrogation);
Maryland
v. Shatzer
,
not a suspect for Williams’ murder prior to her April 21 inculpatory statement to be
*13
disingenuous at best. See
Lopez
, 229 Ill. 2d at 363-64. The police knew defendant had
discovered Williams’ body on the day he was murdered and that she had a violent history
with the deceased. She had a reputation among neighbors for beating Williams and stealing
his money, although she also was reputedly his “companion.” This neighborhood “gossip”
was corroborated by a police case report that defendant had committed a prior offense against
Williams and other “violent actions” against her friend Coffey. The police, moreover, knew
defendant had provided a false name, then disappeared from the crime scene shortly after
discovering Williams’ body. Given the trajectory of the police questioning, as well as the
facts with which they confronted defendant, it is fair to conclude that they conveyed
suspicion of guilt to defendant. See
Wheeler
,
“as a result of a custodial interrogation at a police station or other place of detention.” Under section 103-2.1, it should have been presumed inadmissible as substantive evidence against defendant in her murder trial because her statement was not electronically recorded. 725 ILCS 5/103-2.1(b) (West 2008). Defendant argues that all incriminating statements, including the later videotaped statements wherein she herself admitted to murdering Williams, must now be presumed inadmissible under subsection 103-2.1(d). See 725 ILCS 5/103-2.1(d) (West 2008). The State responds that, under subsection 103-2.1(f), the presumption of inadmissibility
in this case was overcome “by a preponderance of the evidence that the statement was voluntarily given and is reliable, based on the totality of the circumstances.” 725 ILCS 5/103- 2.1(f) (West 2008). The State maintains the trial court specifically found defendant’s statements, including that on April 21, were voluntary and suggests we may affirm on that basis. We disagree. The portions of the record on which the State relies in making its argument
offer no support. The State, for example, points to the trial court’s final statements made before denying defendant’s motion to suppress under section 103-2.1: “The whole purpose of this body of law on videotaping statements is because some legislatures raised concerns about whether statements were actually voluntary or not. *** It is all about voluntariness.” The court’s statements, when read in context, were clearly commentary on the purpose of the statute and made in response to defense counsel’s argument; they were not findings of fact or conclusions of law on the record regarding whether defendant’s April 21 statement or others were voluntary. Indeed, under the circumstances in this case, such findings would make little sense. As
discussed, the trial court failed to make an explicit determination that defendant was subject
to a custodial interrogation under subsection 103-2.1(b). The court declared, instead, that the
statute simply did not lend a viable remedy. See 725 ILCS 5/103-2.1(b) (West 2008).
Consequently, defendant’s April 21 statement was not deemed presumptively inadmissible
(see 725 ILCS 5/103-2.1(d) (West 2008)), and the burden of proving defendant’s statements
both voluntary and reliable never technically shifted to the State under subsection 103-2.1(f).
725 ILCS 5/103-2.1(f) (West 2008); compare
People v. Richardson
,
us demonstrates that defendant’s April 21 statement was both voluntary and reliable. The State points to defendant’s age, 39, eleventh-grade education, and criminal history, but the State relies principally on defendant’s videotaped statements, made April 30 to May 2, some 10 days after defendant’s initial detention on April 20. The State notes the fluidity with which defendant conversed and cooperated with detectives, as well as the absence of physical or mental coercion, observing that defendant at one point stated detectives were “father figures” and asked them to hug her. The State argues there is no other conclusion but that defendant’s statements were voluntary and the State thus fulfilled its burden under the statute. As the State notes, the test for voluntariness is whether the defendant made the statement
freely, voluntarily, and without compulsion or inducement of any sort, or whether the
defendant’s will was overcome at the time she confessed.
Slater
,
evidence was presented at the pretrial hearing on whether defendant’s April 21 statement,
made after hours of custodial interrogation, was voluntary and reliable. See,
e.g.
,
People v.
Smith
,
not do. While we review the legal issue of voluntariness
de novo
, the foundation of that
determination is a factual one which the trial court has the exclusive task of considering. See
In re G.O.
,
voluntary and reliable therefore must be considered. We emphasize that whether defendant’s statement was reliable is a separate inquiry from whether it was voluntary. See 725 ILCS 5/103-2.1(f) (West 2008). We further conclude that, given our disposition on defendant’s second claim, defendant’s May 1-2 videotaped statements cannot be used in analyzing the totality of the circumstances regarding whether defendant’s April 21 statement was voluntary and reliable. If the State cannot meet its burden of proof under the statute, the April 21 statement and any admissions gathered as a result of that statement are necessarily inadmissible as substantive evidence. B. Invocation of Counsel Defendant’s second contention on appeal is that her right to have counsel present during
custodial interrogation was violated when detectives continued to question her after she
asked for an attorney. See
Edwards v. Arizona
,
incrimination, an individual subjected to custodial interrogation or under the imminent threat
of interrogation is entitled to have retained or appointed counsel present during the
questioning. ,
whether it was “possible” to “have a few days to get an attorney,” to which Detective Forberg responded, “no.” Defendant began to ask, “[h]ow long can I–“ but was interrupted by Detective Forberg, who momentarily left the holding cell. On his return less than one minute later, Detective Forberg asked defendant whether she was requesting an attorney because if she was, they were “done talking.” Defendant responded, “[b]ut I don’t know how I can call, make no call (inaudible) all my numbers at the county.” Detective Forberg stated, “[p]ardon,” and defendant repeated, “[a]ll my phone numbers is at the county.” Detective Forberg then [1] inquired, “[d]o you no longer want to answer questions?” Defendant responded, “Yeah, I want to answer questions.” Here, the trial court concluded that defendant’s invocation of her right to counsel was
ambiguous and the police questioning did not violate Miranda . The court further concluded that defendant voluntarily continued to answer questions. We disagree with those determinations. We conclude that defendant’s query, whether it was “possible” to “have a few days to get
an attorney,” constituted an unequivocal invocation of her right to counsel under .
See
Smith v. Illinois
,
50 (1988), and
People v. Quevedo
,
hours after being informed of her rights. She did not ask whether an attorney was
available, but rather how long she had to secure one in light of the fact that she did not have
her telephone contacts. Also unlike in
Evans
and
Quevedo
, here, defendant appears to have
answered further questions only at Detective Forberg’s prompting. She did not cast her vote
to talk rather than wait for an attorney because there was no indication one would be
provided for her. Defendant thus did not waive her fifth amendment right to counsel after
once invoking it. See
People v. Carlson
,
are presumptively involuntary under
Edwards
and should have been suppressed. See
Shatzer
,
implicated herself as the “lookout” but stated that it was O’Neil who bludgeoned Williams,
still may be used to sustain defendant’s conviction and thus, any error regarding defendant’s
subsequent May statements was harmless. As stated, we do know now whether the April 21
confession was voluntary and reliable and therefore properly admitted. Even assuming it
*18
were, the admission of defendant’s May statements after she invoked her right to counsel still
would require reversal and remand for a new trial in this case. Confessions carry “ ‘extreme
probative weight,’ ” and therefore the admission of an unlawfully obtained confession is
rarely harmless error.
People v. St. Pierre
,
¶ 77 C. Sufficiency of the Evidence
¶ 78 Defendant’s third contention on appeal is that the State failed to prove her guilty beyond
a reasonable doubt of the predicate felony of armed robbery. We address this issue because it affects retrial. The standard of review when assessing the sufficiency of evidence is, considering all the
evidence in the light most favorable to the State, whether any rational trier of fact could have
found beyond a reasonable doubt the essential elements of the crime.
People v. Siguenza-
Brito
,
robbery. As such, the State was required to prove that defendant, without lawful justification, performed acts that caused Williams’ death while “attempting or committing” armed robbery. See 720 ILCS 5/9-1(a)(3) (West 2008). To prove armed robbery, the State was required to show that defendant, while armed with a dangerous weapon other than a firearm, took property from Williams’ person or presence by the use of force or by threatening the imminent use of force. See 720 ILCS 5/18-1, 18-2 (West 2008). The trial court concluded that the State had fulfilled this burden after finding that it was
clear defendant wished to take Williams’ money, “[a] negotiation of sorts took place,” and when defendant “realized that she wasn’t getting the money,” she grabbed the clothing iron and beat Williams to death. The court further found that defendant relayed to O’Neil the location of the money, and “like vultures picking off pieces of property,” the money was taken and used for a days-long crack binge. The court thus found defendant legally accountable for the actions of O’Neil. See 720 ILCS 5/5-2(c) (West 2008). Defendant argues that, contrary to the court’s findings, the evidence was not sufficient
to prove beyond a reasonable doubt that any money was taken from Williams’ apartment and thus her armed robbery conviction must be reversed. In support, defendant argues there was no evidence showing Williams had money on his person or in his room at the relevant time, or that defendant or O’Neil actually took Williams’ money. The State responds that the circumstantial evidence supports defendant’s conviction. We
agree. *19 ¶ 84 It is well established that the elements of armed robbery may be proved by circumstantial
evidence.
People v. Wiley
,
a “taking” sufficient to sustain defendant’s armed robbery conviction. See Randle , 277 Ill. App. 3d at 802. The evidence showed that Williams received his social security check on the first and third of each month and kept it at his home. Defendant, aware of this fact, would then frequent Williams’ apartment for the purpose of taking his money and admitted having robbed him four times in the past. Defendant confessed that on April 3, 2007, the day in question, she had planned to rob Williams and apprised O’Neil of that plan, informing him that the money was likely hidden under the mattress or rug. She told O’Neil,“I’m about to get Sweets,” and O’Neil responded, “yeah we can get him.” O’Neil then ushered Adreana out of Williams’ room. Although defendant entered Williams’ room around 3 p.m. for the purpose of securing the money, she then bludgeoned him to death, panicked, and reportedly left without a cent. A short time later, after defendant feigned surprise at Williams’ death, O’Neil was left alone downstairs. Thereafter, O’Neil produced $250, which he and defendant used to purchase crack and which defendant stated O’Neil could not have obtained from anyone else. Police later found a receipt showing Williams had received $685 a few hours before his death, but no money was recovered from the scene. On these facts, we may infer that because Williams’ money was no longer in its habitual
place and given defendant’s admissions, defendant took the property. See Wiley , 165 Ill. 2d at 297-300. This conclusion is strengthened by the combined testimony of Moffett and Shirley, which suggests that defendant was in cahoots with O’Neil and used physical force to obtain money from Williams shortly before his death. Finally, we note that even if we were to find the evidence insufficient to establish that
defendant took Williams’ property, it is more than sufficient to establish that defendant
attempted to take defendant’s property and in the process murdered him. See 720 ILCS 5/9-
1(a)(3) (West 2008). The evidence was sufficient to find defendant guilty beyond a
reasonable doubt of murder predicated on armed robbery. Accordingly, we conclude there
is no double jeopardy impediment to retrial. See
Lopez
,
of felony murder rather than intentional first-degree murder. Because we reverse and remand this case for a new trial, this issue is moot. III. CONCLUSION Based on the foregoing, we reverse the judgment of the circuit court of Cook County and
remand the case for a new trial consistent with this opinion. See
Daniels
,
Notes
[1] According to the State, defendant did not say that all her phone numbers were at the county but, rather, “[a]ll my bond money is at the county.” The trial court reviewed the videotape and found to the contrary that defendant indicated her phone numbers were at the county. We have reviewed the videotape and found, consistent with the trial court, that defendant referenced her telephone numbers, not bond money. We further note that our interpretation of defendant’s statements at this point in the videotape contains several minor differences from that in the transcript. For example, the transcript states that Detective Forberg asked defendant: “Do you or (inaudible) want to answer questions?” Our review of that statement reveals that Detective Forberg stated: “Do you no longer want to answer questions?”