                                      2018 IL App (1st) 143899
                                           No. 1-14-3899
                                           April 10, 2018

                                                                              SECOND DIVISION



                                               IN THE


                                APPELLATE COURT OF ILLINOIS


                                          FIRST DISTRICT



     THE PEOPLE OF THE STATE OF ILLINOIS, )                Appeal from the Circuit Court
                                          )                Of Cook County.
           Plaintiff-Appellee,            )
                                          )                No. 13 CR 10314
           v. 	                           )
                                          )                The Honorable
     JESUS SANCHEZ,                       )                Thomas P. Fecarotta, Jr.,
                                          )                Judge Presiding.
           Defendant-Appellant.           )



        PRESIDING JUSTICE NEVILLE delivered the judgment of the court, with opinion.
        Justices Pucinski and Mason concurred in the judgment and opinion.


                                            OPINION

¶1        A jury found Jesus Sanchez guilty of a murder committed in 2013, when Sanchez was 18

       years old. The trial court sentenced him to 45 years in the penitentiary. On appeal, Sanchez

       contends that the evidence does not prove that he committed the offense and that the trial

       court should have suppressed the statements he made. We hold that the evidence shows that

       he did not voluntarily make the statements the prosecution relied on for the conviction, and

       therefore, the trial court should have suppressed them. Even with the statements in evidence,

       the prosecution did not present sufficient evidence to prove Sanchez guilty. All of the
     No. 1-14-3899


        physical evidence and eyewitness testimony showed that the shots came from a different

        place and at a different time than the shooting described in Sanchez’s confession, and no

        physical evidence or eyewitness testimony connected Sanchez to the shooting. Accordingly,

        we reverse the conviction.

¶2                                           BACKGROUND

¶3         We include a map at the end of this opinion to help clarify the testimony. The map is a

        photograph of an exhibit the prosecution introduced into evidence. The scale shown on the

        map applies to the full-sized exhibit, which is about 3 feet by 4 feet.

¶4         Around 8 p.m. on May 1, 2013, near a Wheeling, Illinois, neighborhood called Winetree,

        Miguel Cortes stood on Bridle Trail, talking with Sanchez, Bryan Estrada, Heladio Flores,

        and Scarleth Rodriguez. Rodriguez got a call from Danielle Pettibone, who invited her to

        visit. Miguel escorted Rodriguez to Pettibone’s home in the building numbered 490 in

        Winetree. As Miguel and Rodriguez walked away, Collin Scheffler drove up to the group in

        a white car with two passengers, Leslie and Brett.

¶5         Miguel left Rodriguez at Pettibone’s home and went to rejoin the group on Bridle Trail.

        On the way, Miguel, a member of the Maniac Latin Disciples, encountered several members

        of the Sureños, a rival street gang that operates in Wheeling. Rafael Orozco, Edson Calleros,

        and Miguel’s father, Martin Cortes, joined the group, who stood near a streetlamp between

        building 486 and 492, south of Pleasant Run Drive and north of Equestrian Drive. Four

        gunshots rang out. Orozco said he had been hit. Martin held Orozco while Miguel tried to

        stop the bleeding.



                                                      2

       No. 1-14-3899


¶6            An ambulance carried Orozco away a few minutes later, after police arrived. Sergeant

          Michael Conway activated his dashboard camera as he approached the area. The initial report

          indicated that a drive-by shooting from Equestrian Drive had occurred. About 30 minutes

          after Conway arrived, he saw Sanchez and Estrada running toward him, chased by several

          members of the Sureños gang. Conway handcuffed Sanchez and Estrada and ordered them to

          sit on the curb. Detective Ignacio Oropeza came to the scene and saw one of the Sureños,

          who said that Sanchez knew something about the shooting. After leaving Sanchez and

          Estrada handcuffed on the curb for more than 30 minutes, Conway placed them in separate

          cars, still handcuffed, for transport to the police station.

¶7            Detective Michael Bieschke also went to the scene of the shooting. He found Flores, then

          15 years old, hiding in bushes in the backyard of 1009 Pear Tree Lane. Police brought Flores

          to an interview room in the police station, where Bieschke questioned him.

¶8            An officer took Sanchez’s cell phone, and Oropeza placed Sanchez in an interview room

          and spoke with him briefly at 10:30 p.m. An officer swabbed Sanchez’s hands around 11

          p.m. and sent the swabs to the police lab to test them for gunshot residue (GSR). The same

          officer later collected Sanchez’s clothes and sent them to the lab for the same test.

¶9            Orozco died that night from a single gunshot wound to the back.

¶ 10          Oropeza returned to question Sanchez further around 3:00 a.m. on May 2, 2013. Sanchez

          answered questions about a fight involving Calleros that occurred around 3:30 p.m. the day

          before. Oropeza swabbed Sanchez’s hands again at 3:42 a.m. and ran a test he referred to as a

          “presumptive GSR test.” The test produced a positive result.



                                                         3

       No. 1-14-3899


¶ 11         Before 7 a.m. on May 2, 2013, Oropeza turned on a video recording device in the room

          where Sanchez sat. Oropeza read Sanchez his Miranda rights around 7:30 a.m. and brought

          in Detective Bush to question Sanchez further. Sanchez elaborated somewhat on the account

          he gave to Oropeza. When the detectives confronted Sanchez with the positive result of the

          “presumptive GSR test,” Sanchez asserted repeatedly that he had not seen or shot a gun that

          evening.

¶ 12         The detectives told Sanchez that his story was “bullshit,” and repeatedly, falsely asserted

          that several witnesses had said they saw Sanchez carrying a gun that evening. The detectives

          said the “tests don’t lie” and suggested that Sanchez was “scared [he was] going to get shot.”

          The detectives suggested that Sanchez should blame Estrada for the shooting. Sanchez began

          crying and said repeatedly, “I didn’t do anything.” Bush moved the table out from between

          them, came right next to Sanchez, and further emphasized that he would not believe

          Sanchez’s account. Bush said, “This was an accident. You didn’t mean for this to happen, did

          you?” Again, Sanchez said, “I didn’t do anything, sir.” Bush answered, “[W]e’re over that.

          There’s too many people that saw you.” This statement was, again, false. Again, Sanchez

          said, “I didn’t do anything.”

¶ 13         About 10 hours after police brought Sanchez to the station, he changed his account. Bush

          asked, “Did Brian do something? *** What did Brian do? You’re almost there.” Sanchez

          answered, “He’s the one that shot.” Bush asked where Estrada stood when he shot the gun.

          Sanchez said, “[t]he farthest parking lot.” Bush suggested that Estrada stood on Equestrian

          Drive or by the tennis courts. Sanchez pointed to a spot on the map police showed him. Bush

          accused Sanchez of lying, and said, “Everybody’s telling me that you had the gun.” Sanchez

                                                      4

       No. 1-14-3899


          said, “I didn’t have anything, sir. I put it on my mom’s life right now, ’cause she’s so sick

          right now, that I didn’t have any gun, sir.”

¶ 14         Bush suggested again, “this was just self-defense?” Sanchez said, “I didn’t shoot

          nobody,” “I didn’t have any gun,” and “I want to see my mom.” Bush said, “I can let you see

          your mom after we talk about this and get the truth.” Again Sanchez said, “I did not do

          anything.” Bush again accused Sanchez of lying. Bush said, “it was an accident. Is that

          correct?” Sanchez responded, “Sir, I want to see my mom.” Bush limited Sanchez’s choices:

          “I need to hear it from you, then, if it was an accident or did you intend to hit him?” Sanchez

          said, “I don’t have a gun.” Bush persisted: “[E]verybody’s telling me it was you and plus the

          GSR, you gotta understand it, okay?” Sanchez said, “Sir, if it was me, sir, I take the blame,”

          “I would say it,” and “I’m telling you the truth.”

¶ 15         Bush returned to the tactic of getting Sanchez to blame Estrada. Sanchez eventually said,

          “I held it, but Brian shot it.” Through tears he said, “I want to get out of here. My mom is

          worried about me.” Sanchez explained in his new story that Estrada showed him the gun and

          he held it briefly, then Estrada took it back and ran off to shoot. Sanchez said his mother “just

          had surgery a day ago,” and “[s]he doesn’t know right now. She’s worried about me.” Bush

          accused Sanchez of lying and said, “These tests only happen when you fire a weapon.”

          Sanchez still said, “I didn’t fire no weapon”; “It was Brian. I didn’t fire anything, sir.” Bush

          said, “Jesus. Unfortunately, we already know that you did.” Bush encouraged Sanchez to tell

          his side of the story. Sanchez said, “I give you my side, sir, you still won’t believe me.”

¶ 16         A few minutes later, Sanchez tried another revised account. He said, “It went off by

          itself,” and then Estrada took it from him. Bush asked, “Is it a revolver or a semi-automatic?”

                                                         5

       No. 1-14-3899


          Sanchez said, “It was a revolver,” and “I want to go home to my mom.” Sanchez attempted

          to complete the story. He pointed on the map to where he said the gun discharged. He found

          a spot between the buildings numbered 540 and 544, close to 100 yards north of where

          Orozco stood when the bullet hit him. He explained that Estrada wanted to shoot, because

          “he thought they had shot Miguel.” Estrada had the gun, and when he handed it to Sanchez,

          “it went off.” Sanchez said he “ran to the cops” because Sureños “told [him he] was a dead

          man.”

¶ 17             Oropeza asked Sanchez to retell the evening’s events. Sanchez said that Miguel joined

          Sanchez, Estrada, Flores, and Rodriguez on Bridle Trail. Rodriguez got a call, and Miguel

          left with Rodriguez just before Scheffler, with Brett and Leslie, stopped by in Scheffler’s

          white car. Sanchez, Estrada, and Flores got into Scheffler’s car, and Estrada showed Sanchez

          Estrada’s gun, a black revolver. Estrada said he “was gonna get those guys back.” Estrada

          hopped out of the car, and Sanchez ran with him. Sanchez showed on the map that they got

          out of Scheffler’s car by the 410 building. After the gun accidentally discharged, he and

          Estrada ran in different directions, Estrada carrying the gun. When the Sureños chased them,

          they met again just before running up to Sergeant Conway.

¶ 18             Oropeza sought to clarify the route Estrada and Sanchez took when they left Scheffler’s

          car:

                   “DETECTIVE OROPEZA: —why did you guys walk around this way? Why?

                   MR. SANCHEZ: Brian didn’t want to go through cops.

                   ***

                   *** I was just trying to go to my car. I was just trying to go home.”
                                                         6

       No. 1-14-3899


¶ 19         Earlier that day, Sanchez had parked his car in a lot on the west side of the 492 building.

          Police found the car there after they arrested Sanchez. Bush said, “Listen, you did good. I’m

          glad you were honest with us.” Sanchez immediately asked to see his mother. Bush said the

          police needed to “clarify some things” first. Sanchez pleaded, “Let me talk to her”; “I want to

          talk to my mom.” Oropeza said, “You will talk to your mom, okay? All right? Just not right

          now, okay?”

¶ 20         An hour later, Bush asked for a repetition of the confession. Sanchez said Scheffler drove

          from Bridle Trail to Longacre Lane to Equestrian Drive to Illinois Route 83 to Palatine Road.

          Scheffler stopped on Palatine Road, and Estrada said he wanted to shoot Sureños because he

          felt disrespected in the fight that took place around 3:30 p.m. on May 1. Scheffler drove them

          on Palatine Road to Wheeling Road and then to the parking lot by the 410 building. Sanchez

          marked on the map where he, Estrada, and Flores stood when the gun went off, when they

          were between the buildings numbered 540 and 544, north of the 486 and 492 buildings near

          where Orozco was shot. Sanchez said that when Estrada looked ready to shoot, Sanchez tried

          to take the gun away from him, and it went off in his hand. After the four shots discharged,

          Estrada took the gun and ran west toward the park.

¶ 21         Bush asked for a further description of the gun, but Sanchez said only it was black with a

          black handle, and Sanchez did not know the caliber. Bush asked, “[W]as it hard to pull the

          trigger?” Sanchez answered, “Yeah, it was.” At the conclusion of the questioning, Sanchez

          again said, “I just want to talk to my mom.” The detectives again told Sanchez to wait.

¶ 22         More than an hour and a half later, Sanchez knocked on the door of the interview room.

          He asked, “Can I talk to my mom yet?” Oropeza said, “not right now.” Sanchez asked,

                                                      7

       No. 1-14-3899


          “When can I talk to my mom?” and Oropeza said, “when *** we get to it.” Five minutes

          later, Sanchez knocked again and asked again, saying, “She doesn’t know where I am,” and

          “Please let me talk to her.” Bush told him to wait. Five minutes later Sanchez asked again.

          Oropeza said, “I got food coming for you.” Sanchez answered, “I don’t want any food,” “I

          want to talk to my mom.” Again the response was “Not right now.” When Oropeza brought

          food a few minutes later, Sanchez repeated his plea, to the same effect. After five minutes,

          Sanchez knocked again and asked to talk to his mother, “[j]ust a quick call.” Oropeza said,

          “No, that cannot be done.”

¶ 23         Sanchez waited almost 10 minutes before knocking again, with the same result. Then 30

          minutes later, a different officer said he could call his mother “in a little bit.” Twenty minutes

          later, another knock, another request, and another denial. Fifteen minutes later, another

          knock, and Oropeza said, “what was the answer to your question?” Sanchez said only,

          “Officer, please.”

¶ 24         Police came in of their own accord 15 minutes later, at 2 p.m. on May 2 and searched

          Sanchez for tattoos. They took Sanchez out of the interview room, listening to Sanchez

          repeat his plea to call his mother. They denied the request.

¶ 25         Bush and Oropeza questioned Sanchez anew at 5 p.m. on May 3, 2013. Sanchez told the

          detectives that he had lied on May 2, that he and the others in the car never fired a gun. A

          member of the Spanish Gangster Disciples he knew only as “Bone Crusher” had threatened

          Sanchez and Leslie. Sanchez asked if the others in the car had all confirmed his initial

          account, that they had been on Bridle Trail when they heard the shots, then they left the area

          and returned to the parking lot by building 410, and then “Leslie got out of the car to see who

                                                        8

       No. 1-14-3899


          got shot.” Bush said, “This was the made-up story that you guys had fuckin’ already talked

          about.” Regarding Bone Crusher, Bush said, “[Y]ou and Leslie are trying to fabricate stuff.”

¶ 26         Bieschke’s initial questioning of Flores, like Oropeza’s initial questioning of Sanchez,

          went unrecorded. Flores initially gave an account that closely matched Sanchez’s initial

          account. Flores said he and Sanchez were with friends on Bridle Trail when they heard four

          gunshots. They got into Scheffler’s car, and they left the area but returned to find out whether

          Miguel had been shot. Scheffler parked by building 410. Leslie got out to find out about the

          shooting. Nothing Flores said implicated Sanchez in the shooting.

¶ 27         Bieschke turned on the video recorder around 10 a.m. on May 2, 2013, after Bush and

          Oropeza had obtained incriminating statements from Sanchez. He brought in a second

          detective to question Flores. Flores again said the group on Bridle Trail heard the gunshots

          and got into Scheffler’s car. The detectives said they knew what had happened, and asked

          whether Flores wanted to be held accountable. They asked Flores what he thought Estrada

          had said. Flores repeated that he heard four shots, and he did not know where they came

          from. The police told Flores to stop lying. They then falsely told Flores that Sanchez and

          Estrada said Flores shot Orozco. Flores still said he did not know who fired the gun. The

          detectives told Flores, falsely, that Sanchez tested positive for gunshot residue. Flores, using

          a map like the one Sanchez used, traced the path from Scheffler’s car, parked by building

          410, and showed where he went a different direction from Estrada and Sanchez. He said

          Sanchez held a silver gun with a brown handle.

¶ 28         The detectives suggested that Calleros was a “pancake” because he flipped from the

          Maniac Latin Disciples, the gang to which Flores belonged, to the Spanish Gangster

                                                       9

       No. 1-14-3899


          Disciples. They asked if someone said, “we’ve got to kill the pancake.” Flores said, “Yeah.”

          The detectives suggested that after the shooting, Sanchez threw the gun in the pond. Flores

          said, “Yeah.” Flores marked the map to show where he saw Sanchez right before the

          shooting. He picked a location between buildings 540 and 544, the same point where he

          separated from Estrada and Sanchez when the Sureños started chasing them about 20 minutes

          after the shooting.

¶ 29         Police searched the pond for three days. They found no gun. They found no shell casings

          by the murder scene. An officer found one spent bullet, and a satellite dish apparently nicked

          by a bullet, near the spot where a bullet hit Orozco. The officer concluded that the bullet had

          come from south of where Orozco stood. The bullet that killed Orozco entered his back as he

          faced north, so it must have come from south of Orozco. Police never found the other bullets

          the killer fired. Although police found no corroboration for the statements from Sanchez and

          Flores, and strong physical evidence showed that the bullet could not have come from the

          spot where both Flores and Sanchez said Sanchez stood when the gun discharged, the State

          decided to charge Sanchez with the murder of Orozco and the attempted murder of Calleros.

¶ 30                                        Pretrial Proceedings

¶ 31         Sanchez filed a motion to suppress the statements he made to Bush and Oropeza on three

          grounds: (i) Sanchez did not make the statements voluntarily, (ii) police failed to read

          Sanchez his Miranda rights prior to custodial questioning, and (iii) police violated statutory

          law requiring video recording of custodial questioning that forms part of a murder

          investigation. See 725 ILCS 5/103-2.1(b) (West 2012).



                                                      10 

       No. 1-14-3899


¶ 32          At the hearing on the motion to suppress, Conway testified that when he arrived at the

          scene

                    “It was very chaotic. [He saw] fifteen to twenty people in the courtyard yelling at

                    the police get the fuck out of here. We need an ambulance. What took you guys so

                    long. Why are you here?”

          He saw Sanchez and Estrada running toward him about 30 minutes after he came to the

          scene. Conway recognized Estrada, but he had never seen Sanchez before. He told Sanchez

          and Estrada to sit on the curb, and he handcuffed them, but he told them they were not under

          arrest.

¶ 33          Oropeza testified that after Sanchez arrived at the police station, Oropeza told Sanchez to

          wait in the interview room and that he wanted to speak to Sanchez about the shooting.

          Oropeza admitted that he did not tell Sanchez he was free to leave. Oropeza ordered the GSR

          tests of Sanchez’s hands and clothing. Oropeza chose not to record the interviews with

          Sanchez at 10:30 p.m. on May 1 and at 3:00 a.m. on May 2. Oropeza admitted that he first

          advised Sanchez of his Miranda rights at 7:30 a.m. on May 2, 2013.

¶ 34          Judge Thomas Fecarotta ruled that police did not arrest Sanchez until 4 a.m. on May 2,

          when the “presumptive GSR” test returned a positive result. The questioning before that time

          did not qualify as custodial, and police had no need to warn Sanchez of his Miranda rights.

          The judge found that Sanchez voluntarily confessed to firing the gun. Therefore, the judge

          denied the motion to suppress.

¶ 35          Shortly before the date set for trial, the parties learned that a drug rehabilitation center

          had treated Flores as an inpatient. Although the judge granted defense counsel’s request for

                                                         11 

       No. 1-14-3899


          an order directing the rehabilitation center to produce Flores’s medical records, the judge

          denied defense counsel’s request for a continuance, and the request to bar Flores, when the

          rehabilitation center failed to produce the records prior to trial.

¶ 36          Sanchez’s attorney, Julie Koehler, filed a motion in limine. In paragraph 2 of the motion,

          she asked the judge to bar “[a]ny video or in court testimony regarding Defendant Sanchez

          and Bryan Estrada being chased by rival gang members through the Wine Tree Apartment

          Complex prior to his being placed in custody.” The judge ruled, “So I’m going to grant the

          motion in limine as to Paragraph 2 with the caveat if there is an indication to the jury through

          questioning that this did not happen, then the State is going to be allowed to show the video.

          So Paragraph 2 based on that ruling will be granted.” The judge also granted defense

          counsel’s motion to bar reference to the “presumptive GSR test.”

¶ 37                                                  Trial

¶ 38          Elena Calleros testified that on May 1, 2013, her son Edson came running home from

          school around 3:30 p.m. chased by Sanchez and another young male. One of the chasers

          struck Elena when Elena blocked them from hitting Edson. Sanchez and the other young man

          ran off when she threatened to call police.

¶ 39          Miguel testified that in 2013, he, Flores, Estrada, and Sanchez all belonged to the Maniac

          Latin Disciples street gang. On May 1, 2013, around 3:30 p.m., they saw Edson get off the

          bus dropping him off from school. Edson had switched from the Maniac Latin Disciples to

          the Spanish Gangster Disciples. Sanchez, Estrada, and a third male chased Edson, fought

          with him, and then ran off. Later that afternoon, Sanchez rejoined Miguel in the Winetree

          area. They saw Edson come out and talk to two members of the Sureños gang, and those two

                                                        12 

       No. 1-14-3899


          Sureños came up to Miguel and Sanchez, saying they wanted to fight. Orozco persuaded

          them not to fight. Flores, Estrada, and Sanchez ran off to the park, but they returned shortly

          with Sanchez carrying Miguel’s machete. They confronted three Sureños and Edson. Police

          showed up before anyone started fighting.

¶ 40         Miguel testified that he was with Sanchez, Estrada, Flores, and Rodriguez on Bridle Trail

          around 8 p.m. that evening. He walked off with Rodriguez, and he encountered some Sureños

          and Edson as he walked back alone, between buildings numbered 486 and 492. Orozco and

          Miguel’s father joined them. As they talked, Miguel heard shots coming from Equestrian

          Drive. Orozco, who was facing north, was shot in the back.

¶ 41         Thirty minutes after the shooting, Miguel saw Sanchez and Estrada running south from

          north of the shooting scene, chased by Sureños. The judge overruled defense counsel’s

          objection to the testimony about a chase. Miguel saw police “arresting [Sanchez] and putting

          him on the curb.”

¶ 42         Defense counsel showed Miguel a still photograph taken from the dash camera videos

          she received from the State. The still shows a woman walking past the police car. Miguel

          confirmed that the photograph showed Leslie. The time stamp showed that she walked from

          the scene at the time when Flores and Sanchez said she had gone to find out who had been

          shot.

¶ 43         The prosecution then presented Sergeant Victor Chirio as an expert on gangs in

          Wheeling. Chirio said the Spanish Gangster Disciples, the Maniac Latin Disciples, and the

          Sureños “are all enemies of each other.” Chirio knew Estrada from “[n]umerous gang

          contacts in Wheeling.” Chirio testified that, at the scene, he saw Jose Garcia and Michael

                                                      13 

       No. 1-14-3899


          Crost chasing Estrada and Sanchez. He knew Garcia and Crost as members of the Sureños

          gang. Chirio had never seen Sanchez before May 1, 2013.

¶ 44         Detective Bernie Conboy testified about the damage to the satellite dish and the bullet

          found at the scene. Conboy testified that the bullet came from south of where Orozco stood.

¶ 45         Robert Berk, a trace evidence analyst, testified that when a person fires a gun, the gun

          emits smoke containing lead, barium, and antimony and particles of those elements usually

          fall on the hands and clothes of the shooter. He tested Sanchez’s clothes and the swabs taken

          of Sanchez’s hands. He found no trace of any of the three elements on the clothes, and no

          trace of any of the three elements on the swabs. He explained that the test could show a

          negative result even though the subject fired a gun, if “the particles were either removed by

          activity, not detected, or were not deposited.” He said, “normal hand activity is going to

          remove the residue over time.” One would lose some residue by wiping one’s hands or by

          sweating. He also found none of the three elements on the hand swabs and clothes of Estrada

          and Flores.

¶ 46         Detective Oropeza testified that he lied to Sanchez to induce him to confess.

¶ 47         Before putting Flores on the stand, the prosecutor, in a sidebar, noted that during the

          questioning in the video recording of Flores’s interrogation in the police station, police

          referred to the “presumptive GSR” test. The prosecutor sought leave to ask Flores about his

          response to a police question that mentioned the results of that test. Defense counsel said,

          “presumptive gunshot residue tests are not reliable. There ha[ve] been no Frye hearings done

          on these. They are relatively new.” The judge barred reference to the test but added that “if



                                                     14 

       No. 1-14-3899


          [defense counsels] open the door again to this GSR, presumptive or not, I’m going to allow

          the State to call witnesses regarding that.”

¶ 48         Flores, 16 years old at the time of trial, testified that Edson left the Maniac Latin

          Disciples and joined the Spanish Gangster Disciples. On May 1, 2013, around 3:30 p.m.,

          Flores saw Sanchez and Estrada chase Edson, trying to beat him up. Around 9 p.m. that

          evening, Flores stood with Sanchez, Estrada, and some others on Bridle Trail when they

          heard four gunshots. Scheffler drove them from the area, but they came back to the parking

          lot by the 410 building to find out whether Miguel had been shot. Leslie got out of the car

          and when she returned she told them Orozco had been shot. Sanchez, Estrada, and Flores got

          out of Scheffler’s car and headed toward Sanchez’s car. Some Sureños started chasing them.

          Flores ran north, toward Pear Tree Lane, while Sanchez and Estrada ran the other way. Flores

          testified that when police handcuffed him and took him to the police station, he believed he

          was under arrest for murder.

¶ 49         Flores testified that in the statement video recorded at the police station, he lied to police

          about the shooting. He explained that police threatened to charge him with murder. He told

          police what they wanted to hear so that he could avoid the charges. He agreed to whatever

          Detective Bieschke suggested. Actually, he had never seen Sanchez with a revolver.

¶ 50         Flores explained that he believed Bieschke when Bieschke told him that Sanchez had

          already confessed and Sanchez felt bad for shooting Orozco. Flores believed “it would be,

          well, okay to say that [Sanchez] was the shooter then.” He told Bieschke he threw the gun in

          the pond because otherwise “they were going to keep [him] in there.” The prosecutor asked

          what evidence the officers said they had against Sanchez. The judge overruled defense

                                                         15 

       No. 1-14-3899


          counsel’s objection, finding that she had “brought it out.” Flores said that police told him

          they “supposedly found powder or something like that, guns powder” on Sanchez’s hands.

          The record shows no reference during cross-examination of Flores to gunshot residue or any

          test of anyone’s hands or clothes.

¶ 51          Detective Bieschke testified that Flores initially told him that he was talking with

          Sanchez and other friends on Bridle Trail when they heard four shots. They all got into

          Scheffler’s car, and Scheffler drove out of the neighborhood, but they returned to find out

          about Miguel. Defense counsel sought to elicit from Bieschke testimony about how Bieschke

          convinced Flores to change his account. Bieschke admitted that he downplayed the

          significance of the killer’s acts, said that the shooting occurred accidentally, and told Flores

          he was not a bad person. Bieschke admitted that he asked Flores whether the gun “was

          possibly ditched in the pond,” a possibility Flores had not mentioned prior to Bieschke’s

          suggestion.

¶ 52          The jury saw several excerpts from the interrogations of Flores and Sanchez. Defense

          counsel sought to show the jury the parts of the video of Sanchez after the confession, when

          Sanchez pleaded for a phone call to his mother and when he said Bone Crusher had

          threatened him and Leslie. The judge denied the request.

¶ 53          A resident who lived just south of Equestrian Drive testified that when he heard the four

          shots on May 1, 2013, he went out to his driveway and saw a dark car speeding past with its

          lights off.

¶ 54          Miguel’s father, Martin, testified that he was standing outside with Miguel, Orozco, and

          several members of the Sureños on May 1, 2013, when he heard the shots. He saw flashes

                                                      16 

       No. 1-14-3899


          from the firearm as it discharged, with the flashes coming from Equestrian Drive, south of

          where he and the others stood.

¶ 55         In closing argument, the prosecutor said that Sanchez’s tears during the interrogation

          showed that he suffered from a burden of guilt, and “you can see how that burden is in fact

          lifted from him after he admits being the person who shot Rafael.”

¶ 56         Defense counsel argued that detectives fed an account to Flores and Sanchez and

          pressured them into assenting to that account. The detectives used lies about the evidence and

          emphasis on the words “accident” and “mistake” to induce acceptance of the false accounts.

¶ 57         In the prosecution’s rebuttal, the jury heard the following:

                   “[PROSECUTOR]: It’s bad enough to insult the integrity of the law enforcement

             people that were involved in this case. It’s bad enough to put dishonor upon their

             reputations, the people that are out there saving our lives and our communities.

                   [DEFENDANT’S CO-COUNSEL]: Objection, Judge.

                   THE COURT: Overruled.

                   ***

                   [PROSECUTOR]: *** I’ve never seen anybody murdered by a cupcake before.

             He wants his Mommy. He is nothing but a sniveling, cowardly killer. That’s what he

             is.

                   What were you doing out there all day, Jesus?

                   [DEFENDANT’S CO-COUNSEL]: Objection, Judge.

                   THE COURT: Overruled.


                                                      17 

       No. 1-14-3899


                 ***

                 [PROSECUTOR]: [Flores] knew because when he was asked why were you

             being chased, what did he say? We were being chased by the Sureños because they

             thought we had shot someone, and that’s why they were being chased—

                 MS. KOEHLER: Objection, Judge.

                 THE COURT: What’s your objection?

                 MS. KOEHLER: It was the subject of a motion—

                 THE COURT: Overruled.”

¶ 58         After the jury began deliberating, Sanchez moved for a mistrial based on several

          evidentiary errors and pervasive judicial bias against defense counsel. The judge denied the

          motion. The jurors deliberated for five hours before sending a note saying, “We are split.”

          The judge ordered them to continue deliberating. Five hours later, the jury returned a verdict

          finding Sanchez guilty of the murder of Orozco but not guilty of attempting to murder Edson.

¶ 59                                        Posttrial Proceedings

¶ 60         Defense counsel filed a motion for a new trial, listing numerous alleged trial errors. She

          also contended that the judge committed reversible error when he denied her request for a

          continuance so that the parties could have the records of Flores’s stay at the rehabilitation

          center. The records from the rehabilitation center, produced after trial and appended to the

          motion for a new trial, included a note from Flores’s therapist, which said,

                “Client is expecting to be called back into court *** to testify again. Client ***

                reported that the guy currently on trial did not commit the murder. Client reported


                                                      18 

       No. 1-14-3899


                 that he knows who did it and he along with several other witnesses have told the

                 authorities about it. However, right now the current guy is locked up and has been

                 incarcerated for the past year.”

¶ 61         Defense counsel did not have access to this note when she prepared for trial and when she

          cross-examined Flores, Bieschke, and other witnesses. The judge denied the motion for a

          new trial.

¶ 62         The judge sentenced Sanchez to 45 years in prison: 20 years for murder, plus 25 years for

          use of a firearm. Sanchez now appeals.

¶ 63                                                ANALYSIS

¶ 64         Sanchez argues on appeal that the evidence does not support the conviction, the court

          should have quashed the arrest and suppressed all of Sanchez’s statements, and the

          prosecutor’s improper conduct requires a new trial. We reverse the conviction due to the

          insufficiency of the evidence. For a fuller understanding of the ruling, we also discuss the

          motions to quash the arrest and suppress the statements.

¶ 65                                       Motion to Quash Arrest

¶ 66         The prosecution did not argue that police had probable cause to arrest Sanchez on May 1,

          2013, when officers handcuffed him, brought him to the police station in a police car and

          ordered him to sit in a windowless interview room. The prosecution contends that police

          acquired probable cause to arrest Sanchez at 4 a.m. on May 2, 2013, when they swabbed his

          hands, used a kit they referred to as a “presumptive GSR test,” and obtained a positive result.




                                                       19 

       No. 1-14-3899


¶ 67         The parties do not dispute the essential facts regarding the treatment of Sanchez from

          9:30 p.m. on May 1, 2013, to 4 a.m. on May 2. Accordingly, we review de novo the trial

          court’s ruling denying the motion to quash the arrest. People v. Love, 199 Ill. 2d 269, 274

          (2002).

¶ 68         Our supreme court set out the applicable principles:

                    “For purposes of the fourth amendment, a seizure is synonymous with an arrest,

                and an arrest effected without probable cause or a warrant based thereon violates

                the protections of the amendment. [Citation.] An arrest occurs when a person’s

                freedom of movement has been restrained by means of physical force or by a

                show of authority. [Citation.] To determine whether an arrest has, indeed,

                occurred, the question to ask is whether a reasonable, innocent person would,

                under the circumstances, have considered herself arrested or free to leave.”

                People v. Williams, 164 Ill. 2d 1, 11 (1994) (superseded in part by rule on other

                grounds as stated by People v. Garstecki, 234 Ill. 2d 430, 438 (2009)).

¶ 69         The supreme court identified “four factors that may be indicative of a seizure: (1) the

          threatening presence of several officers; (2) the display of a weapon by an officer; (3) some

          physical touching of the person of the citizen; and (4) the use of language or tone of voice

          indicating that compliance with the officer’s request might be compelled.” People v.

          Luedemann, 222 Ill. 2d 530, 553 (2006).

¶ 70         Here, Sergeant Conway’s dash camera video shows that around 9:30 p.m. on May 1,

          2013, Conway, in an authoritative tone of voice, directed Sanchez to come to him. Conway

          handcuffed Sanchez and ordered Sanchez to sit on the curb. Conway and other officers at the

                                                      20 

       No. 1-14-3899


          scene had weapons. All the Luedemann factors indicate that Conway arrested Sanchez. In

          determining whether a reasonable innocent person would consider himself free to leave, we

          note that Flores, similarly treated, considered himself under arrest when Detective Bieschke

          handcuffed him, and Miguel, innocent of any wrongdoing here, testified that he saw police

          arrest Sanchez at the crime scene. Police illegally arrested Sanchez without probable cause

          around 9:30 p.m. on May 1, 2013.

¶ 71         After the illegal arrest, police questioned Sanchez twice about the murder, without

          advising Sanchez of his Miranda rights. Police also failed to record the questioning, in

          violation of section 103-2.1(b) of the Code of Criminal Procedure (Code). 725 ILCS 5/103­

          2.1(b) (West 2012).

¶ 72         The prosecution argues that the failure to record does not violate the Code because the

          officers who questioned Sanchez before 4 a.m. might not have known that Orozco had died,

          and therefore they questioned Sanchez only about a shooting, not about a murder. See 725

          ILCS 5/103-2.1(e)(viii) (West 2012). But the Code expressly places on the prosecution the

          burden of showing that an exception excuses them from the rule requiring recording of

          interrogations. 725 ILCS 5/103-2.1(e) (West 2012). The prosecution presented no evidence

          of when Oropeza or other officers learned that Orozco had died, and therefore the

          prosecution did not meet its burden of showing the statement admissible under subsection

          (e)(viii). 725 ILCS 5/103-2.1(e)(viii) (West 2012).

¶ 73         Due to the violation of section 103-2.1(b), the trial court had a duty to suppress all

          subsequent statements from Sanchez unless the State showed by a preponderance of the

          evidence that the subsequent statements were both voluntary and reliable. 725 ILCS 5/103­

                                                      21 

       No. 1-14-3899


          2.1(d), (f) (West 2012). To determine the voluntariness of a statement, the court should

          consider “the defendant’s age, intelligence, background, experience, mental capacity,

          education, and physical condition at the time of questioning; the legality and duration of the

          detention; the duration of the questioning; and any physical or mental abuse by police,

          including the existence of threats or promises.” People v. Gilliam, 172 Ill. 2d 484, 500-01

          (1996). Here, Sanchez was 18 years old, with no criminal background, at the time of the

          interrogation. Police arrested him without probable cause and held him for 12 hours before

          he confessed. Most notably, the detectives told Sanchez he could not call his mother until he

          told them the truth about the shooting, and they told him they already knew he shot Orozco.

¶ 74         We find that on the issue of voluntariness, we cannot distinguish this case from Haynes v.

          Washington, 373 U.S. 503 (1963). Haynes, under arrest, repeatedly asked to call his wife.

          Police told him they would allow him to call once he cooperated with them. After 16 hours in

          custody, with no phone call, Haynes confessed. The Supreme Court said:

                 “[T]he petitioner was alone in the hands of the police, with no one to advise or

                aid him, and he had ‘no reason not to believe that the police had ample power to

                carry out their threats,’ [citation], to continue, for a much longer period if need be,

                the incommunicado detention ***. Neither the petitioner’s prior contacts with the

                authorities nor the fact that he previously had made incriminating oral admissions

                negatives the existence and effectiveness of the coercive tactics used in securing

                the written confession introduced at trial. The petitioner at first resisted making a

                written statement and gave in only after consistent denials of his requests to call

                his wife, and the conditioning of such outside contact upon his accession to police

                                                       22 

       No. 1-14-3899


                demands. Confronted with the express threat of continued incommunicado

                detention and induced by the promise of communication with and access to

                family, Haynes understandably chose to make and sign the damning written

                statement; given the unfair and inherently coercive context in which made, that

                choice cannot be said to be the voluntary product of a free and unconstrained

                will.” Haynes, 373 U.S. at 514.

¶ 75         Following Haynes, we find that the uncontested evidence shows that Sanchez did not

          voluntarily make the statements admitted against him at trial. By refusing Sanchez’s request

          to call his mother, the detectives also violated section 103-3(a) of the Code. 725 ILCS 5/103­

          3(a) (West 2012).

¶ 76         Even if a court could regard the statements as voluntary, the prosecution, in its arguments

          at trial, conceded that the jurors should not rely on almost all of the statements Sanchez made

          in the lengthy interrogation. The prosecutor argued that the jurors should not believe

          Sanchez’s statement that Estrada brought the gun, as the prosecutor, relying solely on

          Flores’s assent to the detectives’ suggestions, argued that Sanchez purchased the gun a week

          before the shooting and brought it to the scene. The prosecutor argued that the jurors should

          not believe Sanchez’s statement that Sanchez had the gun between the 540 and 544 buildings

          when it discharged, as the prosecutor did not dispute the overwhelming evidence that the

          fatal shot came from Equestrian Drive. The prosecutor argued that the jurors should not

          believe Sanchez’s statement that the gun discharged accidentally. Because the police came to

          the scene only after Orozco had been shot, the prosecution cannot accept as true Sanchez’s

          statement that before he got hold of the gun, he, Flores, and Estrada all walked from

                                                      23 

       No. 1-14-3899


          Scheffler’s car by the 410 building toward Sanchez’s car by the 492 building, staying north

          of Pleasant Run Drive to avoid police. The only words Sanchez spoke that the prosecutor

          wanted jurors to believe came when Sanchez said he held the gun and “it went off.”

¶ 77         Despite the prosecution’s rejection of virtually every statement Sanchez made, even in

          the course of his confession, the prosecutor argues that Sanchez’s statements count as reliable

          within the meaning of section 103-2.1(f) of the Code. 725 ILCS 5/103-2.1(f) (West 2012). In

          People v. Harper, 2012 IL App (4th) 110880, ¶ 34, the court held that, to determine the

          reliability of statements for section 103-2.1(f), “the trial court can consider such things as the

          age and mental capacity of the defendant, the presence or absence of coercion, the length of

          the interrogation, whether the defendant had been deprived of sleep or food and water or use

          of a bathroom, whether the defendant—if an addict—was in the throes of withdrawal, and

          any other factor that may affect the reliability of the statement.” The court cited no legal

          authority for the list, which duplicated factors pertaining to voluntariness. People v. Harper,

          2013 IL App (4th) 130146, ¶ 20. The Harper court listed only one factor not related to

          voluntariness: “any other factor that may affect the reliability of the statement.” Harper,

          2012 IL App (4th) 110880, ¶ 34.

¶ 78         “We emphasize that whether defendant’s statement was reliable is a separate inquiry

          from whether it was voluntary.” People v. Harris, 2012 IL App (1st) 100678, ¶ 66. Factors

          other than voluntariness have bearing on the reliability of a confession. Courts have

          frequently looked to corroboration as the most significant indicator of the reliability of

          confessions. See Chambers v. Mississippi, 410 U.S. 284, 300 (1973); People v. Bowel, 111

          Ill. 2d 58, 67-68 (1986). The Bowel court held that, for a confession, “indicia of

                                                       24 

        No. 1-14-3899


           trustworthiness [include] that (1) the statement was made spontaneously to a close

           acquaintance shortly after the crime occurred; (2) the statement was corroborated by other

           evidence; (3) the statement was self-incriminating and against the declarant’s interest; and (4)

           there was adequate opportunity for cross-examination of the declarant.” Bowel, 111 Ill. 2d at

           67. We hold that courts should consider corroboration of the statement, especially

           corroboration of any new assertions of fact that police did not know before, in determining

           the reliability of a confession under section 103-2.1(f). The other Bowel factors may also

           affect the confession’s reliability.

¶ 79           Bieschke’s questioning of Flores produced some corroboration of Sanchez’s confession.

           Flores said Sanchez headed toward the 540 and 544 buildings, holding the gun, shortly

           before Flores heard the shots. But most of Flores’s recanted video recorded statements shown

           at trial flatly contradicted Sanchez’s confession. Sanchez said Estrada brought the gun;

           Flores said Sanchez bought the gun the week before the shooting and brought it to the scene.

           Sanchez described the gun as black with a black handle; Flores described the gun as silver

           with a brown handle. Sanchez said Estrada took the gun from him and ran west from the

           shooting scene; Flores said Sanchez took the gun, headed east, and threw the gun in the pond

           north of the 430 building.

¶ 80	          Eyewitness testimony and the physical evidence also contradict Sanchez’s confession.

           The shot came from Equestrian Drive, south of Orozco, and hit him in the back as he stood

           facing north. The shot did not come from anywhere near the spot where Flores confirmed

           that Sanchez stood when Flores, in his recanted statement, said he heard the shots. Moreover,

           if Sanchez fired the shots from Equestrian Drive and lied about it, as the prosecutor

                                                       25 

       No. 1-14-3899


          theorized, Sanchez would have stood no more than 40 yards from his car, which police found

          parked on the west side of the 492 building. He would not have had cause to circle north of

          Pleasant Drive if, as the prosecutor argued, he tried to get to his car to escape the scene. The

          initial account Sanchez, Flores, Estrada, Leslie, and others gave police explains how Sanchez

          arrived north of the shooting scene, trying to go from Scheffler’s car by the 410 building, to

          Sanchez’s car by the 492 building, when Sureños started to chase him and he headed toward

          the police. The evidence at trial did not substantially corroborate Sanchez’s confession.

¶ 81         The other Bowel factors also militate against a finding of reliability. Police pressured the

          statement out of Sanchez, and Sanchez hoped police would allow him to call his mother if he

          confessed, so he stood to gain from the confession. Considering all the Bowel factors, the

          trial court should have found Sanchez’s confession unreliable.

¶ 82         We hold that section 103-2.1 required the court to suppress the video recorded statements

          of Sanchez, made after police initiated unrecorded custodial questioning in a murder

          investigation, when police had not informed Sanchez of his Miranda rights. Police induced

          an involuntary, unreliable confession. The trial court erred when it denied the motion to

          quash the illegal arrest and the motion to suppress statements.

¶ 83                                     Sufficiency of the Evidence

¶ 84         No physical evidence connected Sanchez to the crime. Police never found the gun or the

          casings from the fired bullets, and they found only one of the four fired bullets. The

          prosecutor conceded that police never found the bullet that killed Orozco. A reasonable trier

          of fact could conclude that the many persons found near the scene, including those persons

          who, according to police, acted with hostility to the police, may have taken from the area the

                                                      26 

       No. 1-14-3899


          evidence before police arrived on the scene. No witness testified that Sanchez held a gun. No

          witness saw Sanchez on Equestrian Drive, where the shots came from. Sanchez’s hands and

          clothes bore no trace of antimony, no trace of barium, and no trace of lead. The testimony of

          all witnesses and all the physical evidence fits well with the initial account Sanchez, Flores,

          Estrada, Leslie, and others gave police. That account, which matched Flores’s testimony in

          court, is also consistent with Miguel’s testimony that he stood on Bridle Trail, talking with

          Sanchez and the others, before he left with Rodriguez to head to the 490 building where

          Pettibone lived. When Sanchez and the others realized the shots hit someplace near the 490

          building, they had reason to fear Miguel had been shot.

¶ 85         Moreover, the prosecution failed to present a coherent theory of the case. According to

          the prosecution, Sanchez went home to pick up his gun some time after the fight with Edson

          at 3:30 p.m. He spent the rest of the afternoon and evening with Miguel and other friends,

          getting into a confrontation with some Sureños after Edson went to the Sureños for help. But

          Edson, according to the prosecution’s witnesses, flipped from the Maniac Latin Disciples to

          the Spanish Gangster Disciples, and Sureños count both of those gangs as enemies.

          Inexplicably, Edson did not appeal to the Spanish Gangster Disciples for help.

¶ 86         Later that evening, Sanchez was talking with some Maniac Latin Disciples and others on

          Bridle Trail, when Miguel left to escort Rodriguez to the 490 building. According to the

          prosecution, a few minutes later, knowing that his friend and gangmate Miguel had gone

          toward the 490 building, Sanchez walked unseen to Equestrian Drive and fired wildly at a

          group that included Miguel and Miguel’s father. One bullet struck a satellite dish, two may

          not have hit anything notable, and one bullet killed Orozco. Then, instead of walking a few

                                                      27 

       No. 1-14-3899


          feet to the other side of the 492 building, where he had parked his car, Sanchez ran around

          Winetree for half an hour, with no apparent purpose other than to work up a sweat and

          persuade Sureños to chase him, while Estrada took the gun over to the pond north of Pleasant

          Run Drive and threw the gun in the pond. Notably, in the prosecutor’s account, Estrada did

          not take the gun to the much closer pond just south of Bridle Trail. According to the

          prosecution, Sanchez, Flores, Estrada, Scheffler, and Leslie concocted a consistent account

          for their actions before and after the shooting. They all stuck to the story when they spoke to

          police, except that after 12 hours in custody, Sanchez finally said that he held the gun when it

          discharged. He started to feel so relieved from unburdening himself that he started crying

          during the questioning well before he actually admitted to holding the gun. The admission

          made him feel completely unburdened, even though he continued to lie about when and how

          he got the gun, where he stood, whether police had arrived in the area before the shooting,

          and all other details of the shooting.

¶ 87         The overwhelming implausibility of the prosecution’s account presents us with the

          question: why did a jury of 12 ostensibly reasonable persons sign a verdict convicting

          Sanchez of murder? We find two factors that likely led to the verdict. First, confessions have

          exceptional persuasive force (see People v. Clay, 349 Ill. App. 3d 24, 30 (2004)), and as we

          have already concluded, the jury should not have heard Sanchez’s incriminating statements.

          Second, the prosecutor insinuated that Sanchez’s hands had gunshot residue and the Sureños

          accused him of shooting Orozco, and the prosecutor shifted the jurors’ focus from the

          evidence against Sanchez to the issues of whether defense counsel had grievously insulted




                                                      28 

       No. 1-14-3899


          police and whether jurors doubted the integrity of the officers. See People v. Fluker, 318 Ill.

          App. 3d 193, 202-03 (2000).

¶ 88         We note that, if not for the constraints imposed on the detectives by section 103-2.1(b) of

          the Code, the video recording requirement, the detectives would have had a much better

          opportunity to obtain the signatures of Sanchez and Flores on statements more consistent

          with the physical evidence, making the statements more plausible while no less false and no

          less coerced. We recommend that if police departments again use the so-called “presumptive

          GSR test,” the departments should inform officers and the subjects of the tests about what the

          tests actually measure, and what kinds of contact can produce positive test results. We also

          recommend the consideration of possible sanctions against the officers for violating section

          103-3(a) of the Code, which establishes the suspect’s right to make phone calls. 725 ILCS

          5/103-3(a) (West 2012).

¶ 89         While our supreme court has expressly approved the use of deception to obtain

          confessions (see People v. Martin, 102 Ill. 2d 412, 427 (1984)), this case shows us how the

          use of deception in interrogations leads to false confessions. Deceptive practices contribute to

          an atmosphere in which whole communities act with hostility toward police. If police want

          the members of the community to treat them with respect and help them in their efforts to

          reduce crime, police should renounce the use of deceptive practices in law enforcement so

          that the members of the community learn that they can trust police officers to treat them

          honestly. The practice of deception in interrogations and other settings can destroy the trust

          needed as a foundation for the relationship between police officers and the members of the

          communities the police officers have a duty to serve and protect. A revision of police

                                                      29 

       No. 1-14-3899


          department rules, and the actual imposition of significant sanctions for deceptions, might

          help repair the strained relations between police and some of the communities they have a

          duty to serve.

¶ 90                                         CONCLUSION

¶ 91         No witness saw Sanchez with a gun. No witness saw Sanchez near the spot from which

          the fatal shot came. The prosecution showed no connection between Sanchez and the single

          spent bullet found at the scene. Police found no trace of antimony, barium, or lead on

          Sanchez’s hands and clothes. The prosecutor did not present a plausible account of Sanchez’s

          actions around the time of the shooting, and police admitted that Sanchez and the persons

          with him shortly before the shooting gave a plausible, consistent, exonerating account of

          Sanchez’s conduct.

¶ 92         We hold that the prosecution did not present sufficient evidence to sustain the conviction.

          But here, the record leads to a further conclusion. The evidence convincingly shows that

          Sanchez did not murder Orozco. Accordingly, we reverse the judgment of the trial court.

¶ 93         Reversed.




                                                     30 

       No. 1-14-3899



¶ 94                   APPENDIX




                          31 

