                                                    SIXTH DIVISION
                                                    March 31, 2008



No. 1-07-2784


THE PEOPLE OF THE STATE OF         )    Appeal from the
ILLINOIS,                          )    Circuit Court
                                   )    of Cook County.
     Plaintiff-Appellant,          )
                                   )
     v.                            )    No. 02 CR 15430
                                   )
JAMES DEGORSKI,                    )    The Honorable
                                   )    Vincent M. Gaughan
     Defendant-Appellee.           )    Judge Presiding.



     JUSTICE O'MALLEY delivered the opinion of the court:

     Defendant, James Degorski, was indicted on 21 counts of

first degree murder for the January 8, 1993 murders of seven

individuals at a Brown’s Chicken restaurant in Palatine,

Illinois.   Defendant moved to quash his arrest and suppress an

oral and videotaped statement.   The circuit court denied all but

defendant’s motion to suppress his videotaped statement.     The

State filed a notice of appeal and a certificate of substantial
impairment.   The State argues that the circuit court erred in

suppressing defendant’s entire videotaped statement because

defendant previously had been admonished and re-admonished of his

constitutional rights and it was neither necessary nor consistent

with Illinois law to require new Miranda warnings before

commencing the videotaped statement.   Defendant contends that the

circuit court's finding that Miranda warnings were required prior

to the videotaped statement was not against the manifest weight
1-07-2784

of the evidence.    For the reasons that follow, we reverse the

ruling of the circuit court and remand this matter for further

proceedings consistent with this opinion.

                               BACKGROUND

     On June 11, 2002, defendant was charged with 21 counts of

first degree murder in the shooting and stabbing deaths of seven

workers at a Brown's Chicken restaurant in Palatine, Illinois on

January 8, 1993.    In March 2002, the Palatine police department

received a lead from Anne Lockett, who claimed to be defendant's

former girlfriend.    Lockett told Palatine police sergeant Bill

King that shortly after the murders, defendant called her while

she was in the hospital.    He told her "I did something" and that

she should watch the news.    Lockett stated that all of the news

coverage that night related to the murders that occurred at the

Brown's Chicken in Palatine.

     Approximately two weeks later, Lockett was released from the

hospital and had another conversation with defendant in his

bedroom, and this time, codefendant Juan Luna was also present.
Defendant and codefendant told her that codefendant "wanted to

ice somebody" and they picked the Brown's Chicken in Palatine

because codefendant previously worked there and was familiar with

the manner in which the restaurant was operated.    The defendants

told Lockett that they drove to the restaurant in codefendant's

car, parked behind the shopping center and carefully walked

through the snow.    The two men entered the restaurant and ordered


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chicken and began eating.    Defendant became upset with

codefendant because he was getting grease on his fingers and

defendant worried codefendant would leave fingerprints in the

restaurant.

     Before the incident occurred, defendants went into the

bathroom to put on gloves.    Defendants confronted the employees

with a knife and codefendant's .38-caliber gun.    Lockett told

King that an altercation started when one employee tried to

escape by jumping over the counter and a round was fired.

Codefendant told her that he slit a woman's throat and both

recounted how they shot and killed two remaining victims and that

defendant had to "finish off" one of the victims after

codefendant shot him.   Defendants told Lockett that they mopped

up the floor and retrieved the shell casings.    Later, defendants

threw the gun used in the murders in the Fox River.

     Relative to evidence that was collected at the crime scene,

Lockett told King that defendant indicated that when he shot one

victim, he threw up his french fries.    King considered this to be
an important piece of information because it could only be known

to individuals who were present at the crime scene.    Also

recovered at the crime scene was a partially eaten piece of

chicken which was found in an otherwise empty garbage bag.    Based

on Lockett's statement to King, defendants were asked to speak

with investigators and provide buccal swabs for DNA samples,

which were sent to the Illinois State crime lab for analysis.


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1-07-2784

After speaking to investigators in Palatine for more than 30

minutes on April 27, 2002, defendant indicated that he would

speak with King again if necessary.   On May 7, 2002, the crime

lab notified King that the DNA taken from the partially eaten

chicken in the garbage can matched codefendant's DNA.

     After receiving the DNA analysis results, King learned that

Eileen Bakalla had come forward and told authorities that

defendant had admitted his involvement in the murders to her.     By

early May 2002, Lockett and Bakalla had testified before the

grand jury about defendant's involvement in the murders.

Palatine Police Chief John Koziol ordered King and Detective Dan

Briscoe to locate defendant and ask him to come to Palatine to

answer questions about the murders.   Based on the evidence

collected in the course of the investigation, King learned that

defendant was living with his brother in Indianapolis.   King and

Briscoe drove to Indianapolis on May 16, 2002, where undercover

Palatine police officers had been keeping defendant under

surveillance for the previous two days.   Through the surveillance
King learned that defendant would park his personal vehicle in a

parking lot outside Indianapolis and exchange it for a work

vehicle.

     Hamilton County officers and Indiana state troopers met with

King and Briscoe at approximately 2 p.m. on May 16, at the

parking lot where defendant was expected to exchange his vehicle.

King explained to the Indiana officers that he would ask


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defendant to accompany him to Palatine to answer some question

regarding the murders.   Defendant arrived at 3:30 p.m. at which

time King and Briscoe approached him and asked if he would

accompany them to Palatine to assist in the murder investigation.

Defendant agreed and asked if he could first transfer his tools

from his work vehicle, which he did.      The Indiana and undercover

Palatine officers were in the area; however, they did not

approach defendant with King and Briscoe.      Defendant consented to

a pat-down by King to check for weapons and then entered King's

car and sat in the backseat on the driver's side.

     Although defendant agreed to accompany King and Briscoe to

Palatine to assist in the investigation, King asked defendant to

sign a consent to travel form, which he did.      Defendant was not

advised of his Miranda rights.   King followed the Hamilton County

officer to the highway and drove back toward Illinois.      During

the ride, the three men made "small talk," but the murder

investigation was not discussed during the drive to Illinois.        At

approximately 8 p.m., King received a call from Koziol, who
redirected them to the Streamwood police department because the

news media had learned that defendant would be brought in for

questioning at the Palatine police department.      King, Briscoe and

defendant arrived at the Streamwood Police Department at 8 p.m.

and went directly into an interview room.

     Moments after arriving at the police station, King advised

defendant of his Miranda rights.       Defendant stated that he


                                   5
1-07-2784

understood his rights and agreed to speak with King.    King

interviewed defendant for about 45 minutes.    In this interview,

defendant admitted to his involvement in the murders at the

Brown's Chicken restaurant.    During the break, King offered

defendant food, drink and the use of the facilities, all of which

defendant declined.   The interview resumed at approximately 9

p.m. and continued for an additional 45 minutes when King and

Briscoe left the interview room and briefed Assistant State's

Attorney McHale (McHale) on the results of the interview.

     At 10:30 p.m., King introduced defendant to McHale, who

informed defendant that he was a prosecutor and not defendant's

attorney and proceeded to administer Miranda warnings.      King left

the room and McHale and defendant spoke for about an hour.      King

resumed questioning defendant around midnight which lasted

approximately three hours.    At 4 a.m., McHale joined King and

interviewed defendant for three more hours.    At the conclusion of

the interview, McHale asked if defendant would agree to have his

statement video recorded, to which defendant answered that he was
exhausted and wanted to sleep.    King made arrangements for

defendant to sleep in his cell.    While defendant was sleeping,

King went home and McHale slept on a couch in the police station.

     At approximately 4 p.m., King notified McHale that defendant

agreed to give a videotaped statement.    McHale prepared

introductory remarks, exhibits and arranged for a videographer to

tape the statement.   Prior to taping the defendant's statement,


                                  6
1-07-2784

McHale had defendant sign a consent form for defendant to be

taped and furnished defendant with a photograph of codefendant

and the consent to travel form that defendant signed on May 16,

2002.   The videotaping commenced at 4:13 p.m. and the following

colloquy between defendant and McHale occurred:

        "[ASSISTANT STATES ATTORNEY]: Okay; let the record

     reflect that today is May 17th, 2002.   We are in an inter -

     - interview room at the Streamwood Police Department.

     Present in the room with me, Assistant State's Attorney Mike

     McHale, are Sergeant Bill King of the Palatine Police and

     James Degorski.

        We are here to take the statement of James Degorski

     concerning the investigation of the homicidal deaths of

     seven individuals which occurred on January 8th, 1993, at

     approximately 9:00 p.m., at the Brown's Chicken at 168 West

     Northwestern Highway in Palatine, Illinois.

        Jim, before we spoke, I explained that I am an assistant

     state's attorney, a lawyer and prosecutor and not your
     lawyer, is that correct?

        A. [Indicating] (Nodding)

        Q. You need to answer out loud.

        A. Yes

        Q. Okay.   And before we spoke I advised you of your

     constitutional rights, is that correct?

        A. Yes.


                                 7
1-07-2784

       Q. Okay.    I need you to just do me a favor and keep your

    voice up a little.   Okay.   Jim, I talked to you earlier and

    you told me about the homicidal deaths of the seven

    individuals.   And at that time you told me in summary that

    you and Juan Luna planned a robbery at the Brown's Chicken

    in Palatine.   And that during the robbery you shot two

    people in the cooler and Juan shot the other five and

    stabbed the lady.    Money was taken and was split up between

    you later.    Is that correct?

       A. [Inaudible].

       Q. Okay. Again, I know it's - - I know it's hard but if

    you could just keep your voice up for us, okay.   Okay, what

    I just said to you then, is that correct?

       A. Right.

       Q. Okay, I'm gonna [sic] read you your rights again.     Do

    you understand that you have the right to remain silent?

       A. Yes.

       Q. Do you understand that you have - - understand that
    anything you say can be used against you in a court of law?

       A. Yes.

       Q. Do you understand that you have the right to talk to a

    lawyer and have him present with you while you are being

    questioned?

       A. Yeah.

       Q. Do you understand that if you cannot afford to hire a


                                 8
1-07-2784

    lawyer and want one, a lawyer will be appointed by the court

    to represent you before any questioning.

       A. [Inaudible].

       Q. Understanding these rights, Jim, do you wish to talk

    to us now?

       A. Not really.

       Q. Okay. Earlier, you told us what happened, right?    You

    spent a long time talking with Bill and myself, is that

    correct?

       A. Correct.

       Q. Okay.   I gave you your rights before when I first met

    you, is that correct?

       A. Yes.

       Q. Okay. And you told me you understood your rights?

       A. Yes.

       Q. Okay.   And I have just given those to you again.   Do

    you wish to talk to us at this time and tell us everything

    you told us before?
       A. I would much rather just say it in court.   I just - -

       Q. Okay.   I want to show you what I gave you here, that's

    a Consent to the Videotape Statement, correct?

       A. Yes.

       Q. Do you see your signature on there?

       A. Yes, that's my signature there on the first line.

       Q. Can you point to it?


                                 9
1-07-2784

       A. Right next to that X right here. [Indicating]

       Q. Okay.    And you basically said that you were willing to

    give a videostate - - statement about this case?

       A. Yes.

       Q. Okay. So - -

       A. And on Number 1, it gave me the option to not say

    anything if I didn't - -

       Q. Okay.    What part of it?

       A. I think one.   That I don't have to say anything - -

    right to remain silent.

       Q. Are you asking to remain silent?    You don't want to

    give a video statement today at this time?    It's your

    choice, Jim.

       A. Yeah, I want to - -

       Q. I guess - -

       A. - - but it would it just - - it'll be easier just to

    say it one time - - or say it in court rather.    I've already

    said it.    It's not like I have anything to hide or whatever.
       Q. Okay.    This is what you and I and Bill talked before,

    correct?

       A. Yes.

       Q. Okay.    It is your choice.   I mean as you sit here now,

    you can tell me, I don't want to talk about this or I do

    want to talk about this.    Now we've been through this

    before.    So - -


                                10
1-07-2784

        A. I don't want to talk about - - I mean, I don't want to

     talk about it.

        Q. So - - all right.     You realize by doing this that we

     are stopping the tape and we're walking out.     Is that what

     you want us to do?

        A. Then I'll just say it in court then.

        Q. Okay.    I need you to tell me what you want us to do.

     So you want us to stop the tape and do you want us to leave,

     or would you like to continue to tell us what happened?

     Your choice.

        [pause]

       A. I don't want to talk about it at this time. I - -

       Q. So you - - do you understand that I'm stopping the tape

     and I'm walking out?     Is that what you want us to do?

        A. Yeah.

        Q. Yes, okay.    This now concludes the video statement of

     James DeGorski."

The duration of the entire videotape was 4 minutes, 32 seconds.
     Based on defendant's statements, the grand jury testimony

and statements from Lockett and Bakalla and evidence collected at

the crime scene defendant was charged with 21 counts of first

degree murder.     Defendant was subsequently transported to the

Cook County jail where he was assigned a cell in division nine.

During the time defendant was in custody he allegedly made a

statement to a Alicia Hines, a paramedic at the Cook County jail,


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1-07-2784

regarding his involvement in the murders while receiving medical

treatment.1    On December 13, 2006, defendant filed a motion to

suppress any and all statements he made to police.     On August 20,

2007, defendant filed a motion to quash arrest and suppress

evidence.

     The circuit court heard arguments on defendant's motions to

quash arrest, suppress evidence and suppress statements.     The

court denied defendant's motions to quash arrest and suppress

evidence.     However, with regard to the motion to suppress the

statements, the circuit court partially granted and partially

denied it.     Three components of defendant's motion were

identified by the court: (1) the oral statements made to police

on May 16 and 17; (2) the videotaped statement; and (3) the

statement made to Alicia Hines while receiving medical treatment.

The circuit court denied defendant's motion to suppress his oral

statements to police and Alicia Hines but granted his motion to

suppress his videotaped statement.     The circuit court gave the

following reasons for partially denying and partially granting
defendant's motion:

         "All right, as to the oral statements, as to the

     operative paragraphs in the motion to suppress statements

     filed by [defendant].     I find that the State has disproved

     those paragraphs beyond a preponderance of the evidence.


     1
      At times in the record, Hines' first name is spelled
"Alesia."

                                  12
1-07-2784

    Looking at the totality of the circumstances under which

    those statements were made.    I find that [defendant's] will

    was not overborne and that his statements were made

    voluntarily and the evidence reflects that.   As to the video

    tape, first - again, you have to look at the totality of the

    circumstances, and the attitude of the people that were

    questioning [defendant] and how they confronted him, and how

    they treated him on Page 154 of the transcript [defendant]

    said that he would want to get some sleep before he would

    make the video, and they allowed him to go to sleep.    On

    Page 156 of the transcript [defendant] said his mind set, he

    said I don't like to take videos, even at parties, but I'll

    do it here.

       So the next event is after [defendant] sleeps, the

    consent to video is signed and [defendant] is taken into the

    room with the videographer *** and [the] Assistant State's

    Attorney (ASA) *** and Sergeant King.   There's a little

    colloquy before [the ASA] starts to give [defendant] his
    constitutional rights under Miranda and Escobedo and there

    is a point where it could be interpreted as not being very

    clear when he said not really.

       You have to look at [the ASA's] conduct also.    Certainly

    when [defendant] requested sleep, there was no problem about

    giving him sleep or rushing him right into video.   So I

    think when I say it is my opinion is that there was nothing


                              13
1-07-2784

     unjust or unlawful or unethical about questioning it

     further.   [The ASA] did and the final result was [defendant]

     did not want to make a video statement.    So my finding there

     is that whole video statement goes out as a violation of

     Miranda not that it's involuntary.     So that means that if

     [defendant] testifies, that part of the statement can come

     in."

The State properly filed its certificate of substantial

impairment pursuant to Illinois Supreme Court Rule 604(a)(1) (210

Ill. 2d R. 604(a)(1)) and now appeals the ruling of the circuit

court.

                             ANALYSIS

                       I. Standard of Review

     Courts of review in Illinois generally apply a bifurcated

standard of review in situations where a ruling presents a mixed

question of law and fact.   People v. Jones, 215 Ill. 2d 261, 267

(2005); People v. Ballard, 206 Ill. 2d 151, 162-63 (2002); People

v. Watson, 214 Ill. 2d 271, 279 (2005).    In the instant case, we
are called upon to review a circuit court's ruling on a motion to

suppress, which is a mixed question of law and fact.     People v.

Rivera, 227 Ill. 2d 1, 7-8 (2007).     At a hearing on a defendant's

motion to suppress, the circuit court's function is to determine

the credibility of the witnesses, the weight to be assigned to

their testimony and the inferences to be drawn from the evidence.

Ballard, 206 Ill. 2d at 162-63.    In determining whether a trial


                                  14
1-07-2784

court has properly ruled on a motion to suppress, the reviewing

court accords great deference to the findings of fact and

credibility determinations made by the circuit court which will

be reversed on appeal only if they are against the manifest

weight of the evidence.   In re Christopher K., 217 Ill. 2d 348,

373 (2005); People v. Braggs, 209 Ill. 2d 492, 505 (2003).     We

review de novo, however, the ultimate question posed by the legal

challenge to the circuit court's ruling on a suppression motion.

People v. Nicholas, 218 Ill. 2d 104, 116 (2005).

              II. Necessity of New Miranda Warnings

     The circuit court ruled that the entire video would be

suppresses due to a "Miranda violation."   Since it is clear that

defendant received Miranda warnings in full on two occasions

during previous interviews, the issue squarely presented before

this court is whether the circuit court erred in ruling that ASA

McHale was required to administer fresh Miranda warnings prior to

commencing the videotaped statement.   The State argues that the

circuit court erred because re-admonishment of warnings was not
required by Illinois law under the circumstances here.   Defendant

argues that the circuit court’s finding was not against the

manifest weight of the evidence because the record supports a

finding that previous warnings had become stale, the admission of

the videotape serves no purpose other than to remind the jury

that defendant invoked his right to silence in violation of Doyle

v. Ohio, 426 U.S. 610, 49 L. Ed 91, 96 S. Ct. 2240 (1976) and the


                                15
1-07-2784

State impermissibly employed the "question first" and advise

defendant of Miranda rights "later" approach under     Missouri v.

Seibert, 542 U.S. 600, 159 L. Ed. 2d 643, 124 S. Ct. 2601 (2004).

      Our supreme court has specifically addressed when, and under

what circumstances, Miranda warnings can become stale in People

v. Garcia, 165 Ill. 2d 409, 425-26 (1995), (citing to 1 W. LaFave

& J. Israel, Criminal Procedure §6.8, at 520 (1984) and Stumes v.

Solem, 752 F.2d 317, 321 (8th Cir. 1985), for the proposition

that "[i]t is generally accepted that fresh Miranda warnings are

not required after the passage of several hours").     The Garcia

court further determined that it would be ridiculous to require

police to re-advise an accused of his or her Miranda rights

following each break in questioning.      Garcia, 165 Ill. 2d at 425-

26.   The rule announced in Garcia is that new warnings are only

required in those situations where warnings given at a previous

interrogation are "so stale and remote that a substantial

possibility exists that the suspect was unaware of his or her

constitutional rights at the time subsequent interrogation
occurs."    Garcia, 165 Ill. 2d at 426.   Furthermore, the totality

of the circumstances should be addressed by the circuit court in

determining whether a defendant understands his constitutional

rights in post-Miranda warning interrogations.      Garcia, 165 Ill.

2d at 426, citing Upton v. State, 257 Ark. 424, 429, 516 S.W.2d

904, 907-08 (1974).

      The record establishes that defendant had been offered food,


                                 16
1-07-2784

drink and visits to the facilities.   McHale testified that he

questioned defendant with regard to his treatment by King and the

police in private and defendant responded that the police treated

him fine.   Defendant was advised of his rights at approximately

8:15 p.m. by King and again at approximately 10:30 p.m. by McHale

on May 16 and subsequently reminded of his rights several times

following the full Miranda warnings at 10:30 p.m.    Following the

10:30 p.m. warnings, defendant was questioned for about an hour,

and again offered food, drink and a visit to the bathroom and

then interviewed by King for about three hours.    After a break,

King and McHale interviewed defendant for three hours and then

honored defendant’s request to sleep.

     At approximately 3:30 p.m. on May 17, defendant told King

that he would give a videotaped statement.    The videotaped

statement began at 4:13 p.m. on May 17, and defendant was re-

advised of his constitutional rights following a summary of

defendant’s previous statement by McHale.    According to the

record, the longest period of time that could have elapsed during
which defendant was not fully advised of his Miranda rights was

from 10:30 p.m. on May 16, to 4:13 p.m. on May 17, or

approximately 18 hours, during which defendant received

"reminders" of his constitutional rights as opposed to a full

warning under Miranda.   After summarizing the evidence presented

at the hearing, the circuit court entered a finding that "the

whole video statement goes out as a violation of Miranda."


                                17
1-07-2784

     We disagree with the circuit court’s ruling and find that

the totality of the circumstances in this case leads to the

inescapable conclusion that defendant's previous Miranda warnings

were not so remote and stale that he was not aware of his

constitutional rights to silence and to an attorney at the time

of the videotaped statement.    In our view, the events that

occurred during the passing of those approximately 18 hours

between the administration of warnings are of particular

importance in analyzing the totality of the circumstances in the

case sub judice.    The record reflects that after twice receiving

full Miranda warnings, there were two periods of questioning

during which defendant gave detailed and lengthy accounts of the

events on January 8, 1993.    Defendant was also given breaks and

allowed to use the bathroom.    It is not clear whether defendant

chose to eat during this period of time, but he was given a

bottle of water to drink and he was allowed to use the bathroom

at will and sleep from approximately 7 a.m. to approximately 3

p.m. on May 17.    In summary, after being warned of his
constitutional rights at 10:30 p.m. on May 16, the record shows

that defendant gave statements for approximately seven hours,

slept for about eight hours and had periodic breaks within that

18-hour time frame.

     We cannot agree with the circuit court that a substantial

probability exists that defendant became unaware of his rights

following an 18-hour period of time wherein he gave detailed


                                 18
1-07-2784

statements of his involvement pursuant to a valid waiver of his

rights and spent a majority of those hours sleeping and taking

breaks between interviews.    Also, defendant was reminded of his

constitutional rights and waiver thereof several times during

this period.    In defendant's videotaped statement, McHale asked

defendant: "Jim, before we spoke, I advised you of your

constitutional rights, is that correct?" and defendant answered

"yes."    Defendant acknowledged McHale's reference to the

constitutional rights and did not suggest that he had forgotten

what rights McHale was referring to or ask that the question be

clarified.    More importantly, defendant signed a consent to

videotape form prior to the commencement of his statement which

gave defendant the option of remaining silent.    Defendant stated

that he was aware of his right to remain silent and referenced

the consent form on videotape where he said:

         "[DEFENDANT]: A. And on number 1, it gave me the option to

     not say anything if I didn't - -

         [ASSISTANT STATE'S ATTORNEY]: Q. Okay, what part of it?
         Q. I think one.   That I don't have to say anything - -

     right to remain silent."

Although we clearly state here that "reminders" are no substitute

for full Miranda warnings when required by law, in a totality of

the circumstances analysis where a circuit court must decide

whether previous warnings were so stale that defendant had

forgotten his constitutional rights, a reminder is not wholly


                                 19
1-07-2784

irrelevant.

     We find it equally as import to the totality of the

circumstances analysis that nothing occurred in the 18 hours that

would have led defendant to believe that the nature of his

detainment or questioning had changed.    Defendant was never

released from custody and thus led to believe that the

interrogation had ceased.   Upon arrival at the Streamwood police

department, he was Mirandized and it was clear that he was

neither a witness nor an informant.    Defendant was the focus of

the investigation as a suspect and this focus did not change

during the relevant time period.     Defendant gave more than seven

hours of statements during which he detailed his and

codefendant's involvement in the murders.    Finally, defendant was

not transferred to a new facility with new interrogators or

questioned by different agencies which might have led to the

conclusion that the previous interrogation had ceased and his

waiver of rights had become ineffective.

     We hold that the evidence demonstrates that defendant had
not become unaware of his constitutional rights and knew that he

was in custody and being interrogated as a suspect in the murders

at issue following a valid waiver of his Miranda rights.     A

finding that the videotaped interview commenced following a

sufficiently protracted period of time during which defendant had

forgotten his constitutional rights is against the manifest

weight of the evidence.   As a result, the legal conclusion that a


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1-07-2784

Miranda violation occurred because McHale failed to initially re-

advise defendant of his rights and, thus the entire videotaped

statement should be suppressed, was incorrect.

             III. Procedures for Videotaped Statements

     Defendant further asserts that the entire videotape must be

suppressed because: (1) it shows defendant actually exercising

his right to silence which is in violation of Doyle, 426 U.S.

610, 49 L. Ed. 2d 91, 96 S. Ct. 2240; and (2) the State employed

the impermissible "question first and give Miranda warnings

later" technique prohibited in Seibert, 542 U.S. 600, 159 L. Ed.

2d 643, 124 S. Ct. 2601.   We disagree with defendant on both

claims.   First, the State conceded in its brief and at oral

argument that allowing the jury to view defendant actually

exercising his Miranda rights is improper and a violation of

Doyle 426 U.S. 610, 49 L. Ed. 2d 91, 96 S. Ct. 2240.     The State

does not seek to admit any part of the videotape that involves

defendant attempting to exercise his constitutional rights.

Therefore, the circuit court must determine at what point the
videotaped statement will be stopped to avoid a Doyle violation.

     Second, we find this matter to be easily distinguishable

from Seibert.   After being charged with first degree murder for

her role in a disabled victim’s death, Seibert sought to exclude

both her prewarning and postwarning statements because she was

questioned first until she gave an inculpating statement and then

advised of her fifth amendment rights prior to giving a second,


                                21
1-07-2784

redundant statement.    Seibert, 542 U.S. at 605, 159 L. Ed. at

650-51, 124 S. Ct. at 2606.    Seibert is distinguishable from this

case for two reasons.   First, we have concluded that defendant

here was previously and properly advised of his constitutional

rights which extended to his videotaped statement prior to

exercising his right to silence.      In Seibert, the defendant was

not advised of her rights until she had given an incriminating

statement.   Second, at the suppression hearing in Seibert, the

interrogating officer testified that he made a " 'conscious

decision' to withhold Miranda warnings, thus resorting to an

interrogation technique he had been taught: question first, then

give the warnings, and then repeat the question 'until I get the

answer that she's already provided once.' "     The same officer

further acknowledged that Seibert's ultimate statement was

"'largely a repeat of information ... obtained' prior to the

warning. [Citation.]"   Seibert, 542 U.S. at 605-06, 159 L. Ed. at

651, 124 S. Ct. at 2606.   The record in this case is devoid of

any evidence that the State intentionally devised a plan to
obtain a statement from defendant on videotape by tricking him

into doing so without first receiving the proper warnings.

     Notwithstanding our findings that the manner in which the

videotaped statement was carried out was not in violation of

Seibert, we must point out that commencing the process with

Miranda warnings would have avoided any question as to the

propriety of this statement.   In other words, this interlocutory


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appeal would have been unnecessary if the State had advised

defendant of his Miranda rights at the beginning of the

videotape.   More importantly, all parties concerned here would

have avoided the lengthy delay in litigation and motions to

expedite appeals and oral arguments if warnings had been issued

first.   Clearly, the better practice is to begin the

memorialization of statements with full Miranda warnings.

                            CONCLUSION

     For the foregoing reasons, we hold that the circuit court’s

ruling that defendant required fresh Miranda warnings was against

the manifest weight of the evidence.     The evidence in the record

strongly supports the conclusion that defendant was aware of his

rights at the commencement of the videotaped statement.    As a

result, the statement given by defendant prior to the exercise of

his constitutional rights was not a violation of Miranda and the

first portion of the videotaped statement is admissible.

Accordingly, the judgment of the circuit court is reversed and

remanded for the court to determine what portion of the remainder
of the statement will be viewed by the jury in light of

defendant's constitutional right not to testify.

     Reversed and remanded with directions.

     McBRIDE, P.J., concurs.

     JUSTICE McNULTY, dissenting:

     The videotape that prosecutors seek to use against defendant

in this case shows that defendant exercised his right to silence


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1-07-2784

once the interviewing officer reminded defendant of his Miranda

rights.   The trial judge found that the defendant's response to

the warnings showed a substantial possibility that he had become

unaware of the full range of his constitutional rights by the

time the videotaping began.    See Garcia, 165 Ill. 2d at 426. The

judge concluded that the Miranda warnings, last given 18 hours

before the videotaping, had grown stale.    The finding accords

with the manifest weight of the evidence.    The failure to repeat

the warnings before beginning to videotape, under the

circumstances of this case, violated Miranda.    Therefore, the

trial court correctly disallowed the videotape as part of the

prosecution's case-in-chief.   I would affirm the trial court's

decision.   I respectfully dissent.




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     REPORTER OF DECISIONS - ILLINOIS APPELLATE COURT


TITLE            THE PEOPLE OF THE STATE OF ILLINOIS,
of Case
                         Plaintiff-Appellant,

                         v.

                 JAMES DEGORSKI,

                         Defendant-Appellee.

Docket No .      1-07-2784


COURT            Appellate Court of Illinois
                 First District, Sixth Division


Opinion          March 31, 2008
Filed

JUSTICES         JUSTICE O'MALLEY delivered the opinion of the court:
                 McBRIDE, P.J. concurs; McNulty, J. dissents


Appeal's         Appeal from the Circuit Court of Cook County.
Origination      The Hon. Vincent M. Gaughan, Judge Presiding.


Counsel for      For Appellants, Richard A. Divine, State's Attorney, County of
APPELLANTS       Cook, James E. Fitzgerald, Thomas Biesty, Linas Kelecius, Alan
                 J. Spellberg, Assistant State's Attorneys, of Counsel, Chicago, IL.

Counsel for      For Appellees, Edwin A. Burnette, Public Defender of Cook
APPELLEES        County, Lester Finkle, Mark Levitt, Assistant Public Defenders,
                 of Counsel, Chicago, IL.




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