                                                                           FOURTH DIVISION
                                                                           June 30, 2006


No. 1-04-2019


THE PEOPLE OF THE STATE OF ILLINOIS,        )      Appeal from the
                                  ) Circuit Court of
             Plaintiff-Appellee,  ) Cook County.
                                  )
v.                                ) No. 00 CR 26257
                                  )
LARRY SCOTT,                      ) Honorable
                                  ) Thomas R. Sumner,
             Defendant-Appellant. ) Judge Presiding.



        JUSTICE GREIMAN delivered the opinion of the court:

        Defendant Larry Scott appeals from his convictions for first degree murder and armed robbery and

his sentencing to two consecutive terms of 30 years and 7 years, respectively. For the reasons that

follow, we reverse and remand for new trial.

        Prior to trial, defendant filed a motion to quash his arrest on murder and armed robbery charges and

suppress statements he had made to police. On October 2, 2000, defendant was arrested for retail

theft and detained at the Chicago Ridge police station. He was later released on bond, and as he was

leaving the station, two homicide detectives placed him in custody and transported him to Area Two police

headquarters. Defendant stated that the detectives never showed him an arrest warrant and detained him for

several hours at police headquarters, where he made statements to officers regarding the murder of Jesus

Villalobos.

        Detective Steve Brownfield testified that he had been assigned to investigate Villalobos= murder in

August 2000, and that a police informant had implicated defendant in the crime. Brownfield showed a

photograph of defendant to one of Villalobos= neighbors, who stated that defendant had been in the area near
No. 1-04-2019

Villalobos= home the week of his murder. On that basis, Brownfield issued a stop order on defendant.

Brownfield never spoke directly with the informant or the officer who had received the tip that defendant was

involved in the murder.

          Sergeant Edward Nicol testified that on August 14, 2000, an informant that he had known

for three years contacted him and informed him that defendant had murdered Villalobos. Nicol had received

tips from the informant on several prior occasions while investigating narcotics activity, the information he

received was always very detailed, and he had executed between 15 and 20 arrests based on his

communications with the informant. Nicol stated that the knowledge he acquired through the informant was

always reliable and that he had never paid the informant or coerced information from him.

          The circuit court granted defendant=s motion on the basis of a lack of probable cause, stating that a

prudent officer provided with the informant=s statement would not have believed that defendant committed the

murder.

          The State then filed a motion for attenuation. At the hearing, Detective John Fassl testified that

he and his partner, Detective Al Almazan, arrested defendant at the Chicago Ridge police station on the

night of October 2, 2000, and drove him to Area Two, where Fassl placed defendant in an interview

room. Fassl read defendant his Miranda rights and questioned him as to the murder of Villalobos.

Defendant related that he knew Villalobos but denied any involvement in his murder.

          The following morning, Fassl again read defendant his rights and spoke with him about the murder.

Defendant denied any involvement, but submitted to a buccal swab and a polygraph examination. Fassl spoke

with defendant on two subsequent occasions that day, each time reminding him of his Miranda rights, during

which defendant maintained his denials of involvement in the murder, but was willing to discuss his heroin

addiction and other aspects of his personal life.

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       Detective Fassl further stated that the next evening he and Detective Almazan transported

defendant to Villalobos= apartment, where the victim=s body had been found. Once they entered the

apartment, defendant became visibly upset when he saw dried blood on the kitchen floor.

Defendant asked to speak to Fassl alone and proceeded to make an admission. The detectives

transported defendant back to police headquarters, where he spoke with Assistant State=s

Attorney (ASA) James Papa and gave a videotaped statement in which he admitted stabbing

Villalobos and taking money from his apartment. Fassl further testified that, during his

conversations with him, defendant never complained of the effects of heroin withdrawal, and that

he never accused defendant of committing the murder and never conveyed that eyewitnesses had

identified him. However, Fassl did admit that it was his objective in speaking with defendant to

obtain a confession, which defendant proffered 46 hours after his arrest.

       Detective Brownfield testified that during questioning defendant did not appear to be in

distress nor did he request medical attention, nor was defendant offered anything in exchange for

his statement. ASA Papa testified that he advised defendant of his office, reminded defendant of

his Miranda rights, and spoke with defendant for nearly an hour. Defendant admitted killing

Villalobos and stated that he had not been mistreated while in police custody.

       The circuit court granted the State=s motion, finding sufficient attenuation in the multiple

Miranda warnings the police had issued to defendant, the proper treatment defendant was shown

while in custody, and the intervening circumstance of the visit to Villalobos= apartment.

       Defendant then sought to suppress his statements to police and Papa, arguing that they

were given involuntarily. Defendant testified that when Detectives Fassl and Alamazan took

him into custody, he requested a lawyer but was never allowed to speak to one. He also stated
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that Fassl showed him photos of Villalobos= autopsy and told him, "This is your work.@

Defendant explained to the detectives that he was a heroin addict and experiencing withdrawal

symptoms, and asked to see a doctor. Defendant was left alone for long periods of time and not

allowed to use the bathroom, despite repeated requests. As a result he vomited and urinated on

the floor of the interview room. Defendant complained of nausea, back pain, and a painful

abscess on his foot. In response to defendant=s complaints, Fassl indicated that a statement

regarding the murder could be exchanged for medical attention. Defendant could not think of

anything to say to Fassl=s satisfaction. Fassl transported him to Villalobos= apartment, where he

and other detectives accused him of killing Villalobos. Defendant agreed to give a statement in

return for medical attention. Fassl reduced defendant=s statement to writing, and defendant gave

the statement on videotape, but he did not inform ASA Papa that he had agreed to give the

statement in exchange for medical treatment.

       On cross-examination, defendant admitted that he had filed two previous motions to

suppress, neither of which contained allegations of heroin addiction or withdrawal influencing

his decision to offer a statement as to Villalobos= murder. Defendant also admitted that in his

videotaped statement, he stated had been treated well by the detectives and by ASA Papa, that he

was giving the statement freely and voluntarily, that he had not been threatened or promised

anything in return for giving the statement, and that at no time during the statement did he

complain of the effects of heroin withdrawal or the denial of medical treatment.

       On redirect, defendant asserted that he did mention his heroin addiction and withdrawal

symptoms to the polygraph examiner and to medical personnel at the Cook County jail.

       Defendant called Barry Hargan, whom the trial court accepted as an expert qualified to
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testify on addictive disorders. Hargan testified that, based on interviews with defendant, his

videotaped statement, and a review of his medical history, defendant was a heroin addict in 2000

and that he had been treated with Routine-A, a medication prescribed to treat heroin withdrawal,

soon after his arrest, and that defendant was likely experiencing withdrawal symptoms at the

time of his interviews with the detectives. On cross-examination, Hargan admitted that he never

spoke with anyone else who had been present when defendant gave his videotaped statement,

that he never spoke with any doctors or other medical personnel who had attended to defendant,

and that defendant appeared composed and did not appear to be undergoing the effects of heroin

withdrawal in the statement.

       The circuit court initially granted defendant=s motion to suppress. The State filed a

motion to reconsider, reminding the court that, following the attentuation hearing, Detective

Fassl had been found to be a credible witness and that defendant did not appear to be under any

distress or to have suffered any mistreatment in his videotaped statement. The prosecutor also

argued that there was no evidence to corroborate defendant=s allegations of the withdrawal

symptoms he experienced while in custody. Noting that the defendant=s demeanor during the

statement appeared composed and relaxed and that there was no substantial evidence to

corroborate defendant=s claims of withdrawal, the circuit court granted the State=s motion to

reconsider and denied defendant=s motion to suppress.

       At jury trial, Villalobos= neighbor Estella Gonzalez testified that she last saw Villalobos

on the evening of August 2, 2000. She went to call on Villalobos the following afternoon and

noticed that the front door to his apartment was open. She entered and found Villalobos on the

floor. She called another neighbor, Roberto Salazar, for help. Salazar discovered that Villalobos
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was dead and called 9-1-1.

       Chicago police forensic investigator John Paulson testified that he processed the scene of

Villalobos= murder on August 3, 2000. He photographed the entire scene and recovered several

items including an ashtray and two knives, one of which appeared to have red stains on it. He

found the knife on top of a television set in a bedroom and noted that it had a figure resembling a

dog carved in the handle. No discernible fingerprints were recovered.

       Officer Larry Thomas testified that on August 14, 2000, he received a page from a

confidential informant whom he had previously consulted in narcotics investigations. After

meeting with the informant, Thomas and his partner sought the whereabouts of defendant to

question him about Villalobos= murder and related the information to Detectives Fassl and

Almazan.

       Detective Fassl testified to the same facts he asserted in prior hearings. He further stated

that when he accompanied defendant to Villalobos= apartment, defendant related that he and

Villalobos would often arrange to shoplift clothing and sell it in order to finance their heroin

habits. Prior to August 3, 2000, Villalobos asked defendant to obtain six pairs of children=s jeans

for which he would pay defendant $60. Defendant went to Villalobos= apartment that morning to

drop off the jeans, but Villalobos no longer wanted them. Defendant became angry, grabbed a

knife he found in the kitchen, and proceeded to stab Villalobos in the chest. Defendant described

the knife as having an animal figure carved into the handle. Villalobos fell backwards onto a

chair and then onto the floor and began to yell for help. To silence him, defendant stabbed him

twice more. Once Villalobos was silent, defendant went into a bedroom and took a stack of

money (approximately $950) he found inside, then went into another bedroom and set the knife
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down on top of a television set.

       Defendant related that, following the incident, he left Villalobos= apartment through the

front door and purchased heroin from two different sellers using the money he had stolen. Later,

again using the money had taken from Villalobos= apartment, defendant purchased a train ticket

to Alabama in order to attend a flea market and purchase firearms, which he intended to resell in

Chicago. When he arrived in Alabama, defendant was unable to obtain the guns and returned to

Chicago the evening of August 5, 2000.

       After finishing the conversation with defendant, Detectives Fassl and Almazan

transported defendant back to police headquarters and contacted ASA Papa, who obtained

defendant=s consent to proffer a videotaped statement describing his involvement in Villalobos=

murder.

       On cross-examination, Detective Fassl admitted that it was his goal to elicit a confession

from defendant and that he was aware at the time of the investigation that there was no physical

evidence or eyewitness accounts implicating defendant in Villalobos= murder. He stated that

transporting defendant to the murder scene was an interview technique that he hoped would

provoke defendant to confess and that he did not walk defendant through the apartment telling

him what he had done.

       Detective Brownfield testified that after defendant offered the statement, he corroborated

defendant=s purported movements after the murder by contacting the carriers on which defendant

claimed to have travelled. Cook County assistant medical examiner Dr. Nancy Jones testified

that she had performed the autopsy on Villalobos= body and opined that the cause of death was

multiple stab wounds that could have been caused by the knife recovered from his apartment.
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The parties stipulated that no DNA samples retrieved from Villalobos= apartment matched that of

defendant. The parties also stipulated that representatives from Amtrak and U.S. Airways would

testify that defendant purchased tickets for travel from Chicago to Alabama and back on August

3 and 5, 2000. ASA Papa recounted the testimony he had given at the suppression hearing. The

State also presented defendant=s videotaped statement.

       Defendant called Hargan, who again was accepted as an expert qualified to testify on

addictive disorders, and he recounted the testimony he had given at the suppression hearing. On

cross-examination, Hargan admitted that he never spoke with anyone else who had been present

when defendant gave his statements and that defendant appeared composed and did not appear to

be experiencing the effects of heroin withdrawal in the statement.

       Dr. Ghassan Zalzaleh testified that he had examined defendant at Cermak Hospital on

October 6, 2000, and that although defendant appeared pale, his eyes and heart rate appeared

normal, and he did not exhibit the physical symptoms of heroin withdrawal, even though

defendant informed him that he was addicted to heroin. Zalzaleh prescribed a topical antibiotic

for an infection on his foot and Routine-A to alleviate the effects of heroin withdrawal.

       Defendant testified on his own behalf that he did not kill Villalobos and was not present

when the murder took place. He further testified that he had been addicted to heroin and had last

used the drug soon before his arrest in October 2000. He stated that he was experiencing

symptoms of withdrawal during his interview with Detective Fassl, that he explained as much to

Fassl and requested treatment. He experienced withdrawal the entire night following his arrest,

at several times vomiting and urinating on the floor of the interview room and not being able to

sleep. Defendant further stated that when Fassl took him to Villalobos= apartment, Fassl narrated
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what had happened to Villalobos, and defendant verbally agreed only because he needed

treatment for his withdrawal symptoms. He also stated that the videotaped statement he gave to

ASA Papa was concocted with Fassl=s help.

       On cross-examination, defendant conceded that Detective Fassl did not tell him to

provide all the details of his statement regarding the murder and that he did not discuss his

heroin withdrawal when speaking with ASA Papa.

       In rebuttal, the State called Detective Fassl and ASA Papa. Fassl stated that defendant

never complained of heroin withdrawal or any other ailments while he was in questioning and

that he never coerced or otherwise gave defendant any incentive to confess to Villalobos=

murder. Papa stated that during his interview, defendant did not appear to be ill or in any pain or

discomfort.

       After deliberating for approximately four hours, the jury sent a note to the trial judge

stating that it could not reach a unanimous decision and seeking advice on how to proceed. With

the consent of the parties, the court advised the jury to keep deliberating. The jury later

informed the court that it was still deadlocked, so the court ordered that it be sequestered over

night. The following morning, the jury sent another note stating that it was still deadlocked. The

prosecutor asked the court to inquire whether the jury had made any progress and proposed an

instruction regarding the necessity for unanimity, in accordance with People v. Prim, 53 Ill. 2d

62 (1972). The defense indicated its agreement to such an instruction would hinge on the jury=s

answer as to whether it had made any movement.

       The jury foreperson indicated that there had been some progress made, and the trial judge

advised that the jury continue to deliberate until it reached a verdict. The jury eventually
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returned guilty verdicts, and the circuit court sentenced defendant to prison terms of 30 years for

first degree murder and 7 years for armed robbery, to be served consecutively, and ordered him

to submit a DNA profile. Defendant now appeals.

       Defendant initially argues that his fourth amendment rights were violated when the

circuit court, despite ruling that his arrest for the murder of Villalobos was unlawful, held that

the inculpatory statements he made to detectives and ASA Papa were not the product of the

illegal arrest. The State counters that the confrontation of defendant with the crime scene served

as a sufficiently intervening circumstance to purge the taint of the unlawful arrest and render

defendant=s statements admissible.

       Traditionally, when the disposition of a suppression motion turns on factual

determinations and credibility assessments, Illinois courts would only overturn such a decision

where it was manifestly erroneous. People v. Bunch, 207 Ill. 2d 7, 13 (2003). Conversely,

where the facts and witness credibility as to an officer=s discovery of evidence were not in

dispute, courts would review a decision on a motion to suppress de novo. People v. Wilberton,

348 Ill. App. 3d 82, 85 (2004). However, the Illinois Supreme Court has held that reviewing

courts are free to undertake their own assessments of the facts in relation to the issues presented

and may draw their own conclusions when deciding what relief should be granted. Accordingly,

reviewing courts consider de novo the ultimate question of whether evidence should have been

suppressed. People v. Pitman, 211 Ill. 2d 502, 512 (2004).

       A court=s determination that a defendant was unlawfully arrested is not dispositive of the

admissibility of a confession subsequently offered. People v. Bates, 218 Ill. App. 3d 288, 297

(1991). Admissibility hinges on whether the confession was obtained by exploitation of the
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illegal arrest, and such a confession may be admissible if it was obtained by means sufficiently

distinguishable from the arrest so as to be purged of the primary taint. Bates, 218 Ill. App. 3d at

297-98; Wong Sun v. United States, 371 U.S. 471, 486-87, 9. L. Ed. 2d 441, 454, 83 S. Ct. 407,

416-17 (1963). In order to prove that a confession was sufficiently attenuated so as to be

admissible, the State must show by clear and convincing evidence that the statement was a

product of the defendant=s free will and independent of the taint of the illegal arrest. People v.

Berry, 314 Ill. App. 3d 1, 15 (2000). In assessing the admissibility of a statement given in the

wake of an illegal arrest, courts consider: (1) the proximity in time between the arrest and the

confession; (2) the presence of intervening circumstances; (3) the purpose and flagrancy of

police misconduct; and (4) whether the defendant received Miranda warnings. People v. Tingle,

279 Ill. App. 3d 706, 714 (1996); Brown v. Illinois, 422 U.S. 590, 603-04, 45 L. Ed. 2d 416, 427,

95 S. Ct. 2254, 2261-62 (1975). Intervening circumstances and police misconduct are

considered the key factors in attenuation analysis. People v. Wilberton, 348 Ill. App. 3d 82, 85

(2004).

          Initially, we note that defendant was apprised of his Miranda rights on multiple

occasions, several hours and immediately prior to the times he gave his statements to Detective

Fassl and ASA Papa. While such a fact is not sufficient to purge defendant=s statements of the

taint of his unlawful arrest (see People v. Foskey, 136 Ill. 2d 66, 86 (1990)), this factor obviously

weighs in favor of a finding of attenuation.

          We next consider the length of time that elapsed between defendant=s admittedly

unlawful arrest and the time he offered his initial statement to Detective Fassl. From the

testimony elicited at the attenuation hearing and at trial, it is apparent that approximately 48
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hours elapsed between the time that Fassl took defendant into custody and the time that

defendant admitted killing Villalobos after viewing the crime scene. Defendant agreed to make

the videotaped statement to ASA Papa a few hours after tendering the initial confession to Fassl.

       A lapse of time between an illegal arrest and a subsequent confession may dissipate the

taint of the unlawful arrest in that it allows the defendant to reflect on his situation and the

possible existence of evidence implicating him in the offense. Wilberton, 348 Ill. App. 3d at 86.

However, the mere passage of time during a prolonged detention is insufficient to purge the taint

of an illegal arrest, and at best may be an ambiguous indicator as to a confession=s admissibility,

and at worst a serious exploitation of the preceding arrest. People v. Vega, 250 Ill. App. 3d 106,

117 (1993).

       Here, while defendant was detained for quite a length of time, he was not interrogated

incessantly, giving him plenty of opportunity to ponder his situation. However, the length of his

detention could also militate against a finding of admissibility. Accordingly, this factor is at best

ambiguous and does not appear to favor either admissibility or suppression.

       We next examine the presence of any intervening circumstances. " 'An intervening

circumstance is one that dissipates the taint of unconstitutional police conduct by breaking the

causal connection between the illegal conduct and the confession.= @ People v. Austin, 293 Ill.

App. 3d 784, 788 (1997), quoting People v. Turner, 259 Ill. App. 3d 979, 993 (1994). Such

circumstances support a finding of attenuation when they are capable of inducing a voluntary

desire to confess. Wilberton, 348 Ill. App. 3d at 86. Such circumstances may include the

confrontation of defendant with untainted evidence implicating him in an offense (see Berry, 314

Ill. App. 3d at 16-17; Wilberton, 348 Ill. App. 3d at 86; People v. White, 117 Ill. 2d 194, 225-26
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(1987)) or an independent search that yielded sufficient probable cause to place defendant in

police custody (see Tingle, 279 Ill. App. 3d at 715).

       Here, defendant offered his initial statement to Detective Fassl after being transported to

and shown around Villalobos= apartment, which still contained physical evidence of the murder.

The crime scene was evidence that was lawfully obtained prior to defendant=s arrest and,

considering that defendant=s statement to Fassl ensued almost immediately following his arrival

at that location, apparently induced defendant to tender his initial confession. Defendant argues

that the crime scene, while lawfully obtained, did not inhere any physical evidence actually

implicating defendant in Villalobos= murder. We tend to agree. Here, there was no eyewitness

account or identification implicating defendant in the offense, nor was any physical evidence

recovered from defendant=s person or his belongings. The circuit court did have the anonymous

tip implicating defendant in the crime, but discounted it, and rightly so. Also, we cannot help

but consider that defendant most likely would not have been confronted with the crime scene had

he not been unlawfully detained by Fassl. Other than the reaction it inspired in defendant, the

crime scene had no real independent intervening effect on his illegal detention, one that would

have given police probable cause to detain and question him about the murder. Accordingly, we

cannot conclude that defendant=s transportation to the crime scene induced the necessary

voluntary desire to confess. Nor can we conclude that the intervening circumstances weigh in

favor of a finding of attenuation.

       We lastly examine the purpose and flagrancy of police misconduct in affecting

defendant=s desire to confess. "Police action is flagrant where the investigation is carried out in

such a manner as to cause surprise, fear, and confusion, or where it otherwise has a 'quality of
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purposefulness,= i.e., where the police embark upon a course of illegal conduct in the hope that

some incriminating evidence (such as the very statement obtained) might be found.@ People v.

Jennings, 296 Ill. App. 3d 761, 765 (1998). Such misconduct can include mistreatment of the

defendant such as the deprivation of food, drink, and the opportunity to sleep. Wilberton, 348

Ill. App. 3d at 89.

        Here, while only defendant=s testimony indicated any mistreatment at the hands of police

officers, Detective Fassl admitted that it was his objective in questioning defendant and in

transporting him to the crime scene to elicit a confession. We can only surmise that Fassl=s

technique amounted to an exploitation of defendant=s illegal detention. Fassl had no other

evidence to corroborate the discredited anonymous tip implicating defendant and as such had no

probable cause to hold defendant in his attempts to elicit defendant=s confession. Accordingly,

we find that this factor weighs in favor of suppression.

        Because the two key Brown factors militate against a finding of attenuation, we find that

the circuit court erred in denying defendant=s motion to suppress his statements to Detective

Fassl and ASA Papa. The use of an involuntary confession as substantive evidence of a

defendant=s guilt is never harmless error and requires reversal of any convictions obtained on

such a basis. See People v. Woods, 184 Ill. 2d 130, 150 (1998); People v. Clay, 349 Ill. App. 3d

517, 526 (2004). Accordingly, we reverse each of defendant=s convictions and remand for a new

trial in which defendant=s statements will be suppressed.

        Defendant has raised other arguments on appeal concerning the sufficiency of the

evidence to sustain his conviction for armed robbery, the instructions issued to the jury by the

circuit court, the prosecutor=s closing arguments, and the compulsory extraction of his DNA as a
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component of his sentence. In light of our decision to reverse his convictions, we need not

address these issues. See People v. Austin, 293 Ill. App. 3d 784, 791 (1997).

       Reversed and remanded.

       CAMPBELL, J., and MURPHY, J., concur.




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