                               No. 3–05–0533
________________________________________________________________
Filed November 8, 2006.
                                   IN THE
                        APPELLATE COURT OF ILLINOIS
                              THIRD DISTRICT

                                        A.D. 2006

PEOPLE OF THE STATE              )   Appeal from the Circuit Court
OF ILLINOIS,                     )   of the 12th Judicial Circuit,
                                 )   Kankakee County, Illinois,
                                 )
     Plaintiff-Appellant,       )
                                 )
             v.                  )   No. 04-CF-4
                                 )
SIEMON T. MOORE,                 )
                                 )   Honorable
                                 )   Kathy Bradshaw-Elliot,
     Defendants-Appellee.       )    Judge Presiding.
_________________________________________________________________

     JUSTICE SLATER delivered the opinion of the court:
_________________________________________________________________

       The defendant, Siemon T. Moore, was charged with criminal sexual assault. 720

ILCS 5/12-13(a)(1) (West 2004). In the midst of a jury trial, the State, after admitting

that the audio portion of a videotape used to record the defendant’s post-arrest

statement had malfunctioned, attempted to admit a three paragraph summary of the

statement which had been prepared by a Kankakee city police detective. The trial court

granted the defendant’s motion to suppress his post-arrest statement on the ground

that the statement was not voluntarily made and a mistrial was declared.

       The State appeals the trial court’s order granting the defendant’s motion to

suppress. For the following reasons, we affirm.

                                        I. FACTS
       The record reflects that when the defendant was arrested on January 1, 2004,

he was given a form entitled, “Voluntary Statement” to sign. The form provided, in

pertinent part:

                      “The person to whom I give the following voluntary

              statement is Det. Sgt. Jay Etzel, having identified and made

              himself known as a Kankakee City Police Detective.

              DULY WARNED AND ADVISED ME, AND I KNOW:                          1.

              I have the right to remain silent. I do       not have to talk to

              you unless I want to       do so.                            2. If I

              do want to talk to you, I must be         advised that whatever I

              say can and will       be used as evidence against me in

              court. 3. I have a right to consult with a lawyer         and to

              have a lawyer present with me             while I am being

              questioned.            4. If I want a lawyer, but am unable to

              pay      for one, a lawyer will be appointed to        represent

              me free of any cost to me.          5. A videotape providing a

              video and audio        record of this interview is being made to

                  insure my rights and the accuracy of our        conversation.

              I voluntarily consent to      the recording.”

       The defendant initialed all five sections of the form. Detective Etzel and

defendant both signed the bottom of the form. The defendant then spoke with

Detective Etzel on videotape for one hour and five minutes.

       At trial, it was discovered that the audio portion of the defendant’s videotaped

                                              2
statement had malfunctioned. The State informed the trial court that it would not

attempt to admit the videotape into evidence. Instead, the State intended to have

Detective Etzel testify to the statements that defendant had made to him.

      In response, the defendant filed a motion to suppress any statements given by

him to police detectives after his arrest. In his motion, the defendant argued that his

statement was not voluntarily given because he would not have waived his Miranda

rights and given the statement without the guarantee that his words would be

preserved. See Miranda v. Arizona, 384 U.S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602

(1966).

      The defendant argued that the absence of the audio portion of the videotape

rendered his Miranda waiver invalid. See Miranda v. Arizona, 384 U.S. 436, 16 L. Ed.

2d 694, 86 S. Ct. 1602 (1966). The defendant also claimed that the “law of

completeness” required that his complete statement be admitted into evidence.

      As an offer of proof, the State read into the record Detective Etzel’s three-

paragraph summary of the defendant’s one-hour plus statement.

      Detective Etzel said that he transferred the defendant to the Detective Bureau on

January 1, 2004. He read the defendant his Miranda rights. See Miranda v. Arizona,

384 U.S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602 (1966). The defendant told Etzel that

he understood his rights and agreed to speak with Etzel. The defendant also agreed to

have his statements audio and video taped. The interview began at 2:15 p.m. and

ended at 3:20 p.m.         In Etzel’s summary, he said that the defendant’s statement

contained inconsistent explanations of events surrounding the charged offense. Etzel

did not consider the defendant’s statement to be a confession. The defendant did not

                                            3
admit to any of the elements of criminal sexual assault. See 720 ILCS 5/12-13(a)(1)

(West 2004).

       At the hearing on the defendant’s motion to suppress, the trial court questioned

the assistant state’s attorney about paragraph five of the Voluntary Statement form.

The following conversation took place:

                      “THE COURT: What about paragraph five, Mr.

               Deuel?                            MR. DEUEL: I understand

               paragraph five.     THE COURT: That’s the issue here.

               Quite frankly, just the converse, when you have a case

               where they do video record them and there is no paragraph

               five, I’ve not let it in. So it’s just the opposite of that. I’m

               going to grant Mr. Sack’s motion to suppress. I do not think

               it would be fair. I think it forces the defendant to testify.”

       The trial court also discussed the voluntariness of the defendant’s statement.

Specifically, the judge stated:

                      “This defendant, in fact, signed the Miranda waiver

               when it had a paragraph five on it which said a videotape

               providing a video and audio recording of this interview is

               being made to insure my rights and the accuracy of our

               conversation. I voluntarily consent to the recording. If that

               were not on this Miranda, my ruling would be different. But I

               do not know, as I sit here, whether – none of us know –

               whether Mr. Moore gave his statement based on paragraph

                                                4
             five and that’s – that was the reason he voluntarily gave his

             statement.”

      The trial court also held that Detective Etzel’s statement should be suppressed

based upon: (1) the completeness doctrine (see People v. Stackhouse, 354 Ill. App. 3d

265, 820 N.E.2d 1027 (2004)); and (2) if Etzel testified about the defendant’s post-

arrest statement it would force the defendant to testify. A mistrial was declared.

                                      II. ANALYSIS

      On appeal, the State claims that the trial court’s order granting the defendant’s

motion to suppress is incorrect as a matter of law.

      Specifically, the State contends that the trial court erred when it found: (1) the

defendant’s statement to the police was not voluntary; (2) the defendant had a right to

have his statement electronically recorded; (3) the “completeness doctrine” barred the

defendant’s statement from being admitted into evidence; and (4) the defendant would

be forced to testify if Etzel’s statement was admitted into evidence.

                             A. Voluntariness of Statement

      In determining whether a defendant’s statement was voluntarily made, a court

must look at the totality of the circumstances surrounding the making of the statement.

See People v. Brown, 169 Ill. 2d 132, 661 N.E.2d 287 (1996). Of particular importance

is whether the police made any threats or promises to obtain the defendant’s statement.

People v. Gilliam, 172 Ill. 2d 484, 670 N.E.2d 606 (1996).

      The question of whether the defendant’s statement was voluntary is subject to

de novo review. People v. Sanchez, 362 Ill. App. 3d 1093, 841 N.E.2d 478 (2005). We

have reviewed the record and agree with the trial court that the defendant’s statement

                                            5
was not voluntarily made.

       Here, the police were under no obligation to promise the defendant that his

statement would be video and audio recorded to insure his rights and the accuracy of

the conversation. However, they did make such a promise in paragraph five of the

Voluntary Statement form.

       The police broke that promise when the audio portion of the videotape

malfunctioned. This is true even if the malfunction was not the fault of the police

department. We need not determine whether the defendant would have signed the

Voluntary Statement form if he had not been promised that his statement would be

preserved through video and audio tape.

       The totality of the circumstances surrounding the making of the defendant’s post-

arrest statement indicate that the defendant was promised a video and audio recording

of his statement and that promise was not kept. This is sufficient evidence that the

defendant’s statement was not voluntarily given. The trial court properly granted the

defendant’s motion to suppress.



                   B. Defendant’s Right to Have Statement Recorded

       Next, the State argues that the trial court erroneously found that the defendant

had a right to have his statement electronically recorded. As support for this

contention, it refers to the conversation between the trial court and the assistant state’s

attorney regarding paragraph five of the Voluntary Statement form. Again, the following

conversation took place:

                     “THE COURT: What about paragraph five, Mr.

                                             6
              Deuel?                            MR. DEUEL: I understand

              paragraph five.     THE COURT: That’s the issue here.

              Quite frankly, just the converse, when you have a case

              where they do video record them and there is no paragraph

              five, I’ve not let it in. So it’s just the opposite of that. I’m

              going to grant Mr. Sack’s motion to suppress. I do not think

              it would be fair. I think it forces the defendant to testify.”

       The State also relies on another statement in the record where the trial court

noted that if paragraph five were not on the Voluntary Statement form her ruling would

have been different. We have reviewed the trial court’s comments and do not find that

the trial court held that the defendant was entitled to have his statement electronically

recorded.

       Instead, the trial court ruled that the police promised the defendant a video and

audio recording of his statement in paragraph five of the Voluntary Statement form

which the defendant signed. The trial court properly found, without such a recording,

the statement was not voluntarily given. The trial court also specifically held that in the

absence of paragraph five her ruling would have been different. We find no error.

                                    C. Remaining Issues

       The State also argues that the trial court erred in ruling: (1) the completeness

doctrine barred the defendant’s statement from being admitted into evidence; and (2) if

Detective Etzel were allowed to testify without an audio recording of the defendant’s

statement it would force the defendant to testify.

       We need not address these issues based upon our previous ruling that the

                                               7
defendant’s statement was not voluntarily given. The trial court properly granted the

defendant’s motion to suppress.

      Accordingly, the judgment of the circuit court of Kankakee County is affirmed.

      Affirmed.

      O'BRIEN, J., concurs.

      SCHMIDT, P.J., dissents.



      PRESIDING JUSTICE SCHMIDT, dissenting:

      I disagree with the majority's conclusion that the equipment error renders the

defendant's Miranda waiver and subsequent statement involuntary, and therefore, I

dissent.

      There is no indication in the record that the "promise" to tape the interview was

something for which the defendant bargained. In other words, the record is devoid of

any facts that suggest that but for this promise, the defendant would have refused to

sign the Miranda waiver or give a statement. The document signed by the defendant is

clearly an inartfully worded boilerplate Miranda waiver form used in Kankakee County to

appease a local circuit court judge who will not admit an audiotape of a confession or

statement unless the defendant has agreed in writing to the audiotape.

      There is absolutely no indication in the record that the tape's technical deficiency

was a result of intentional wrongdoing by the police. The lack of audio on the tape

simply appears to be an unfortunate equipment malfunction or unintentional operator

error. It does not rise to the level of an unkept law enforcement promise sufficient to

bring into question the voluntariness of the defendant's statement. Traditionally, such

                                            8
unkept promises or improper inducements that defeat seemingly voluntary statements

have taken the form of promises of probation (People v. Jones, 8 Ill. App. 3d 849, 291

N.E.2d 305 (1972)), or other improper promises of leniency (People v. Overturf, 67 Ill.

App. 3d 741, 385 N.E.2d 166 (1979)).

      It is interesting to note that in Overturf, this court discussed the fact that

defendant bargained for the promise of leniency before giving his inculpatory statement.

Overturf, 67 Ill. App. 3d at 744. When finding such a promise of leniency rendered

defendant's statement involuntary, the Overturf court focused almost entirely on the

circumstances surrounding the bargain. Overturf, 67 Ill. App. 3d at 744. Again, there is

no indication in the record that the promise to audiotape was something for which this

defendant bargained.

      This court has acknowledged that not every unkept promise, even a promise of

leniency, renders a statement involuntary. In People v. Anderson, Justice Slater noted

that a "promise of leniency did not render defendant's statement involuntary, since the

defendant admitted that it had no effect on his decision to cooperate because he had

made that decision prior to the promise." People v. Anderson, 225 Ill. App. 3d 636,

641, 587 N.E.2d 1050, 1055 (1992). The proffered evidence from Detective Etzel in

this case shows that before defendant signed the waiver form, he was read his Miranda

rights verbally and agreed to waive them and speak to the police. Therefore, just as in

Anderson, it appears from the State's proffer that this defendant also agreed to make a

statement "prior to the promise" to record the statement contained in the written

boilerplate Miranda waiver form.



                                              9
       The majority claims Gilliam states that "whether the police made any threats or

promises to obtain the defendant's statement" is "of particular importance" when

analyzing the voluntariness of a statement. Slip op. at 6. That is a strained reading of

the test for voluntariness set forth by the Gilliam court. The Gilliam court stated:

              "[T]he test of voluntariness is whether the

              defendant made the statement freely, voluntarily,

              and without compulsion or inducement of any sort,

              or whether the defendant's will was overcome at

              the time he or she confessed. [Citation.]

                 Whether a statement is voluntarily given

              depends upon the totality of the circumstances.

              The question must be answered on the facts of

              each case; no single fact is dispositive. Factors

              to consider when determining voluntariness include:

              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." (Emphasis added.)

              Gilliam, 172 Ill. 2d at 500-01.

       Clearly, the "threats or promises" listed by the Gilliam court were threats or

                                                10
promises related to "physical or mental abuse." Gilliam, 172 Ill. 2d at 501. There is no

indication that the Supreme Court placed "particular importance" on these threats or

promises above and beyond any other factor. In fact, the Supreme Court stated, "no

single fact is dispositive." Gilliam, 172 Ill. 2d at 500. Looking at the totality of the

circumstances and all of the factors set forth in Gilliam, the failure to audiotape the

defendant's statement cannot be said to have rendered it involuntary.

       Furthermore, after stating that the police broke their promise, the majority notes

that a court "need not determine whether the defendant would have signed the

voluntary statement form if he had not been promised that his statement would be

preserved through video and audiotape." Slip op. at 7. It cites no authority for this

proposition because none exists. Today, the majority announces an ipso facto test that

has no basis or foundation in well-settled precedent. To my knowledge, no court, until

today, has held that the test to determine whether a defendant's inculpatory statement

was voluntary starts and finishes with the inquiry of whether the police broke a promise.

(If the majority is correct, then by analogy a "john" who passes either counterfeit money

or a bad check to a hooker is guilty of rape.) Certainly, broken promises are but one

factor announced in Gilliam. And, as this court has previously acknowledged, a broken

promise is not by itself sufficient to render a statement involuntary. See Anderson, 225

Ill. App. 3d at 641. The Anderson court correctly noted that the broken promise "had no

effect on [the defendant's] decision to cooperate" and, therefore, when correctly

reviewing the totality of the circumstances, found that defendant's inculpatory statement

was voluntary. Anderson, 225 Ill. App. 3d at 641. The majority's declaration that the



                                              11
sole factor of a broken promise is by itself "sufficient evidence that the defendant's

statement was not voluntarily given" (slip op. at 7) is a rapid departure from and

expansion of well-settled law to which I cannot agree. In essence, today the appellate

court has overruled the Supreme Court of Illinois by replacing the multi-factor Gilliam

test with it's own one-factor (broken promise) test. I am reasonably comfortable that we

cannot do that.

       Finally, I disagree with the trial court's assertion that allowing the officer to testify

to the content of defendant's statement would somehow force the defendant to testify

and violate his fifth amendment rights. If that were the case, no officer would ever be

allowed to testify to inculpatory statements made by a defendant for fear that the

defendant would have to take the stand to refute the officer's testimony. For that

matter, taking the trial court's reasoning to its logical extreme, the State would never be

allowed to put on any inculpatory evidence for fear that the only way to rebut such

evidence would be for the defendant to testify to proclaim his innocence and refute the

State's evidence.




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