                                  Illinois Official Reports

                                          Appellate Court



                             People v. Jackson, 2014 IL App (3d) 120239



Appellate Court              THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption                      DANIEL JACKSON, Defendant-Appellant.


District & No.               Third District
                             Docket No. 3-12-0239


Filed                        December 4, 2014


Held                         Defendant’s convictions for first-degree murder were reversed where
(Note: This syllabus         the inculpatory statements defendant made were the result of an arrest
constitutes no part of the   without probable cause and there were no intervening circumstances
opinion of the court but     that would purge the taint of the unlawful arrest, and the cause was
has been prepared by the     remanded for further proceedings, since defendant did not ask the
Reporter of Decisions        appellate court to consider the sufficiency of the State’s evidence in
for the convenience of       the absence of the videotape of his coerced confession.
the reader.)


Decision Under               Appeal from the Circuit Court of Peoria County, No. 10-CF-209; the
Review                       Hon. Glenn H. Collier and the Hon. Timothy M. Lucas, Judges,
                             presiding.



Judgment                     Reversed and remanded.



Counsel on                   Thomas A. Karalis (argued), of State Appellate Defender’s Office, of
Appeal                       Ottawa, for appellant.

                             Jerry Brady, State’s Attorney, of Peoria (Justin A. Nicolosi (argued),
                             of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the
                             People.
     Panel                    JUSTICE WRIGHT delivered the judgment of the court, with opinion.
                              Justice McDade specially concurred, with opinion.
                              Justice Holdridge dissented, with opinion.




                                               OPINION


¶1          A jury found defendant Daniel Jackson guilty of two counts of first-degree murder. The
       trial court imposed a 65-year term of imprisonment on one count of murder but did not impose
       a sentence on the second guilty verdict. On appeal, defendant contends the trial court
       erroneously denied his pretrial motion to quash his arrest and suppress evidence and
       improperly prevented defense counsel from emphasizing the involuntary nature of defendant’s
       confession during closing argument. Alternatively, defendant submits only one murder
       conviction can stand based on one-act, one-crime principles.
¶2          We conclude the trial court erred by denying defendant’s motion to quash his arrest and
       suppress evidence. In addition, based on plain error, we hold the trial court violated
       defendant’s due process right to present a complete defense by curtailing defense counsel’s
       closing argument. We reverse both of defendant’s murder convictions and, since defendant did
       not request this court to review the sufficiency of the State’s evidence, we remand for further
       proceedings.

¶3                                               FACTS
¶4         The State charged defendant with four counts of first-degree murder. Counts III and IV, at
       issue in this appeal, charged two counts of first-degree murder pursuant to section 9-1(a)(2) of
       the Criminal Code of 1961, for the August 29, 2009, shooting death of Clifford Harvey. 720
       ILCS 5/9-1(a)(2) (West 2010). Prior to trial, defense counsel filed a motion to quash the arrest
       and suppress evidence alleging police lacked probable cause to support defendant’s
       warrantless arrest on March 2, 2010. Defense counsel also filed a separate motion to suppress
       statements regarding defendant’s March 2, 2010, confession, alleging, in part, defendant did
       not knowingly and voluntarily waive his Miranda rights and the interrogators exerted undue
       psychological, physical, and mental coercion on defendant to confess.

¶5                                     I. Suppression Hearing
¶6        The court conducted a two-day hearing on defendant’s pending motions to quash his arrest
       and suppress evidence and to suppress statements on December 9 and 30, 2010.

¶7                       A. Suppression Hearing Testimony of Detective Curry
¶8         The first witness, Peoria police detective Shawn Curry, testified he investigated the August
       29, 2009, shooting death of Clifford Harvey that occurred in the 900 block of Matthew Street

                                                  -2-
       and spoke with an eyewitness, Easton Eibeck, on August 30, 2009. On that date, Eibeck stated
       he could not identify the gunman but indicated he might be able to identify the gunman in a
       photographic lineup. Eibeck also admitted he needed treatment for his heroin addiction.
       Detective Curry explained Eibeck was staying at his father’s residence “out in the county by
       Mapleton” the first time he spoke to Detective Curry on August 30, 2009.
¶9         Detective Curry testified he interviewed Eibeck “several times,” but Eibeck did not
       identify defendant as the shooter until the final interview on February 24, 2010, when Curry
       spoke to Eibeck while he was in custody at the Peoria County jail on unrelated burglary
       charges.1 Curry told the court that, once Eibeck moved to a different part of Peoria sometime
       after the shooting, Eibeck felt “safe *** to now begin revealing more information” and, on
       February 24, 2010, Eibeck positively identified defendant’s photograph as that of the person
       who shot Harvey. 2 During the same conversation, Eibeck told Detective Curry “Dougie
       Fresh” had been with defendant at the time of the shooting.
¶ 10       Detective Curry testified Eibeck said he knew defendant by “nickname and face” at the
       time Harvey was shot. According to Detective Curry, Eibeck “just wanted to flee” and was
       afraid for his safety if he provided this information sooner. Following Eibeck’s positive
       identification of defendant on February 24, 2010, Detective Curry said he sent out a “49
       message,” directing patrol officers to arrest defendant for murder. Detective Curry explained
       that a “49 message” is a “probable cause for arrest” type message.
¶ 11       During cross-examination, Detective Curry agreed that, on the night of the murder, he
       interviewed Kevin Eggers and Angela Espedal, who allowed Harvey and Eibeck to stay at their
       house on Antoinette Street. According to Detective Curry, Eggers and Espedal said Eibeck fled
       to their house immediately after the shooting and told them Harvey had been shot, but stated he
       did not know the person who shot Harvey. Eibeck told the couple that a group of black male
       subjects confronted Eibeck and Harvey before the shooting.
¶ 12       Detective Curry testified the first time he had an opportunity to speak to defendant was at
       the police station shortly after defendant’s warrantless arrest on March 2, 2010. Detective
       Curry and Detective Keith McDaniel recorded this interview, which began when defendant
       stated he understood his Miranda rights at approximately 6 p.m. Detective Curry said the
       interview lasted approximately two hours and resulted in defendant admitting he shot Harvey
       because Harvey came at defendant with a screwdriver. Detective Curry testified defendant
       fainted or “tipped over in his chair” after the interview ended, and it “looked maybe stress
       related.” The court admitted a copy of the DVD of defendant’s interview and reviewed it
       outside the presence of the parties.

¶ 13                         B. Suppression Hearing Testimony of Defendant
¶ 14       Next, defendant, who was 20 years old with a ninth-grade education at the time of his arrest
       for murder, testified. He told the court, on the day of his arrest, he was at his friend’s home with
       his girlfriend Tori consuming “about six beers,” two cups of Paul Masson (a type of brandy),

           1
             During other parts of his testimony, Detective Curry said he interviewed Eibeck twice, on August
       30, 2009, and February 24, 2010.
           2
             The record contains the “photo spread” Detective Curry showed to Eibeck which consisted of six,
       loose but separate, black and white photos of six different black males not arranged in any specific
       order.

                                                     -3-
       marijuana, and “popp[ing]” pills “[l]ike Xanax and Ecstasy” just before the officers arrived
       and took him to the police station. Defendant testified, when he asked the detective if he could
       call his grandmother during the interview, in his “mind [he] was asking to call [his]
       grandmother to get a lawyer.” Defendant said he did not fully understand he needed to tell the
       police officers he would like to call an attorney because he “ain’t never been in a situation like
       that before.” Defendant felt he needed someone present while the police questioned him.
¶ 15       Defendant clarified he had been read his Miranda warnings one other time when he was a
       juvenile, about 12 years old and in middle school, because he hit a girl in gym class after she hit
       him first. When he asked for his grandma during his only previous interview as a juvenile, the
       police stopped the interview and contacted his grandma. Defendant said no charges were filed
       against him for the school incident. Defendant testified he understood his rights, but he “didn’t
       fully understand like how to go about ’em.”
¶ 16       Defendant testified, after asking for his grandmother, he also tried to stop the interview, on
       March 2, 2010, when he “stopped talkin’ to them [the detectives] or trying to block ’em out.”
       He said he thought that was how to demand his “right to remain silent” and “quit the
       interrogation.” According to defendant, he began speaking to the officers, after being silent for
       a period of time, because he “[j]ust got tired of them nagging, constant nagging, nagging,
       nagging. I’m saying the same thing over and over again, and it just kept continuing.”

¶ 17                       C. Suppression Hearing Testimony of Tori Roats
¶ 18       Tori Roats, defendant’s girlfriend, testified she was with defendant at her friend’s aunt’s
       house on March 2, 2010, when the police arrested him. According to Roats, she and defendant
       consumed alcohol and marijuana before the police arrived and defendant also took Xanax pills.
       She said defendant was “tipsy” and “woozy” that day. The judge recessed the hearing shortly
       after Roats’ testimony. The judge stated he wanted to view defendant’s 2½-hour DVD
       statement.

¶ 19                      D. Suppression Hearing Testimony of Easton Eibeck
¶ 20       On December 30, 2010, the second day of the pretrial motions hearing, Easton Eibeck
       testified he had an on-going, eight-year addiction problem with heroin and had previous
       encounters with the police because of his drug problems. On February 24, 2010, Eibeck said
       police arrested him at the same Antoinette Street residence (Kevin and Angela’s residence) for
       a theft charge, and took him directly to meet with Detective Curry where the photo
       identification took place. According to Eibeck, he was having symptoms of withdrawal from
       drugs when he spoke to Detective Curry, on February 24, 2010.
¶ 21       Eibeck told the court he knew defendant by face and nickname prior to August 30, 2009,
       and he told Detective Curry he did not recognize or know the person who shot Harvey the night
       before. Later, Eibeck testified he once again told the detectives, on February 24, 2010, he did
       not know who shot Harvey, but the officers would not accept this explanation and suggested
       they believed he was scared and “holding something back” when they first interviewed him on
       August 30, 2009. Addressing whether he was scared to identify anyone on August 30, 2009,
       Eibeck testified he was not scared and did not make this statement to the officers. Eibeck
       testified, “They came up with that.”



                                                    -4-
¶ 22       Eibeck stated the officers “pushed down my [Eibeck’s] throat the person in the picture,”
       who “kind of resembled the person that was there at the shooting,” causing Eibeck to point out
       the photo of defendant. Eibeck stated, “[F]or some reason they were hellbent on him
       [defendant] for the shooting. And I told them I wasn’t a hundred percent sure. I told them from
       the get-go that I wasn’t a hundred percent sure who did it.” Eibeck testified that defendant’s
       photo “was the continuing photo that they [the police] kept showing me.” Eibeck
       acknowledged to the court that defendant resembled the man who pulled the gun the night of
       Harvey’s death. Eibeck said, on February 24, 2010, the police asked him if he knew “Dougie
       Fresh,” whose photo was also in the photo spread. Eibeck said he responded that he only knew
       Dougie from the south side of Peoria.
¶ 23       During the suppression hearing, Eibeck testified that, on the night of the shooting, he had
       “a frontal view [of the shooter] but it was dark, you know, I was high. *** It all happened really
       fast, you know, the whole scenario.” Eibeck said he and Harvey passed “four individuals who
       was heading down Western [Avenue].” After they walked another half of a block, Eibeck said
       the four men turned around and asked if he and Harvey were “talking shit so-to-speak.” Eibeck
       said he spoke to the four men and told them he and Harvey did not say anything. Eibeck said,
       “[The four men] just ran up on us. I seen a guy go like this (indicating), reach for what I
       assumed was a gun, and I ran from there. That was it.”

¶ 24                                         E. Court’s Ruling
¶ 25      At the conclusion of the pretrial hearing, the court noted that “probable cause does not
       mean a full-blown hearing, evidentiary hearing,” stating:
                  “So these police officers go and talk to a person [Eibeck] who was admittedly,
              everyone agrees, was present at the scene at the time this was committed. First time
              they try to talk to the guy he runs out the back door of the house. He runs. So it’s
              obvious that he doesn’t want to talk to them at that time. I can take those circumstances
              into consideration.
                  So when they do get him–and at first he says that he doesn’t–he gives some
              indication that he doesn’t know–he gives a general description of the person who
              committed the offense. Says that he saw this person. He says on the stand today he saw
              this person reach into *** his waistband, and he sees the butt of a gun. It’s not a
              coincidence that this is after Mr. Harvey was shot and killed.
                  You know, this is easy as putting two and two together. Gives a general description
              of that person. Then later gives the name of this individual and picks this person out of
              a photo lineup and this is what–and as the State’s indicated, probable cause is what the
              police believe. This is the information, credible information that they’ve been given by
              this person. ***
                                                    ***
                  Okay. So this is the information that they have. I’m looking at it from what the law
              requires. Again, you know it would be nice, very nice, if all of these things can be tied
              up at once if it was nuns and priests and ministers, et cetera, who are the witnesses to
              crimes, but that generally doesn’t happen that way unfortunately you know. So we
              don’t really get into real issues of credibility, et cetera.



                                                   -5-
                    It’s issues of observation and, you know, motive and those kind of things. And so
               here’s a person who then later indicates that because the police talked to him again say
               we think you know more, you know, again looking at this, this is a person [Eibeck] who
               initially ran and they give him some–and they say we have more information, we’ve
               developed other information. *** He gives them the name of ‘Heavy’ and later picks
               him out of a photo ID. I mean what more is needed for probable cause at that point to
               arrest this individual, the defendant, and then take him in and then have him
               interrogated?
                    Okay. So, you know, with all of those things–and again–and the officer even
               explained Mr. Eibeck’s reason for saying that he initially withheld information. I mean
               there’s been some discussion. Initially he says he didn’t know who it was but then later,
               I will remind you, that the officer said he said that he gave all of the information later
               because just he and this other person had moved, they were no longer there, and they
               were afraid, he had seen somebody get shot, he was afraid, that he was no longer afraid
               he said. So now he believes that he can give the information. That makes sense. I mean
               that’s not hard to–I mean that’s believable. So the motion to quash [defendant’s arrest]
               is denied.”
¶ 26       Regarding the motion to suppress defendant’s statement, based on the testimony of the
       officers and the DVD recording of the interview, the court found defendant knowingly waived
       his Miranda rights and did not exhibit signs of intoxication. Finally, the court found the
       detectives did not apply undue psychological pressure or physical abuse during the relatively
       short two-hour interview. The court denied defendant’s motion to suppress his confession.

¶ 27                                              II. Trial
¶ 28       Defendant’s jury trial took place from September 19 through 21, 2011. Officer Anthony
       Rummans testified that, after arriving on the scene on the night of Harvey’s murder, he located
       a screwdriver, lighter, and a cell phone near the body of the victim but did not locate any shell
       casings or other physical evidence. Officer Scott Bowers, a crime scene officer, testified he
       collected the screwdriver, lighter, and cell phone for analysis, but did not locate any physical
       evidence linking defendant to the crime scene. In addition, Officer Bowers explained that shell
       casings would remain in the cylinder of a revolver while they would be ejected from a
       semi-automatic weapon, but the failure to locate a shell casing would not necessarily
       determine the type of weapon the gunman used. Officer Paul Tuttle, another crime scene
       officer, testified he collected copper jacket fragments from the chest area of the victim’s body
       during the autopsy conducted by Dr. John Denton.

¶ 29                              A. Trial Testimony of Angela Espedal
¶ 30       Angela Espedal testified that, a few days before Harvey’s death, defendant came to her
       home, where she lived with her husband Kevin (Eggers). Espedal said defendant was “very
       irate” and looking for Harvey. According to Espedal, defendant believed Harvey had been
       selling drugs on their block but had not been “breaking bread,” or sharing the proceeds, with
       them. Espedal acknowledged on cross-examination that she is not technically married to Kevin
       and agreed she did not contact police regarding the incident between Harvey and defendant.
       Espedal also admitted she currently had a case pending for unlawful possession of heroin and


                                                   -6-
       cocaine and that she had a previous conviction for possession of cocaine. Espedal could not be
       certain when she had last used illegal drugs prior to Harvey’s death on August 29, 2009.

¶ 31                              B. Trial Testimony of Easton Eibeck
¶ 32       Easton Eibeck testified that, on the night of Harvey’s death, he and Harvey left Angela
       Espedal’s house to purchase illegal drugs. While walking back on Antoinette Street toward
       Espedal’s house, Eibeck and Harvey encountered a group of four people who demanded both
       men empty their pockets. Eibeck testified he fled after observing one man reach toward his
       own waistband. Eibeck could not identify what the individual had been reaching toward,
       noting he could not “even really say that it was the butt of a gun.” According to Eibeck, the
       area of the street was dark and he was under the influence of a narcotic. He explained to the
       jury that, even though he was acquainted with defendant prior to the incident, he did not
       recognize the person who reached into his waistband. As he ran away, Eibeck saw the four
       people surround Harvey before he heard two gunshots. Eibeck acknowledged he spoke with
       Detective Curry and said the person in the photo (defendant) “looked like the guy that pulled
       the gun” but he wasn’t 100% certain.
¶ 33       Eibeck stated he was currently in custody for possessing a controlled substance and for
       obstructing justice. He testified his drug of choice was heroin. Eibeck also testified he had
       some prior felony convictions, including one for unlawful possession of a controlled substance
       and one for theft.

¶ 34                              C. Trial Testimony of Detective Curry
¶ 35       Detective Shawn Curry testified that, on August 30, 2009, he interviewed Eibeck, who
       reported he did not know the individuals involved in Harvey’s murder, but could identify them
       “again.” When Detective Curry interviewed Eibeck again on February 24, 2010, Eibeck
       identified a photo of “Heavy” as the person who shot Harvey. Eibeck told Detective Curry
       three others were with “Heavy” that night, including Dougie Freeman. According to Detective
       Curry, Eibeck told him four males circled around Harvey. When “Heavy” pulled out a
       handgun from his waistband, Harvey then pulled out his screwdriver and started to back pedal
       down the street. During his trial testimony, Detective Curry testified that Eibeck told Detective
       Curry he saw “Heavy” point the gun toward Harvey, and Eibeck saw Harvey turn to run.
       Detective Curry testified that while Eibeck was running away, he heard two gunshots.
¶ 36       Detective Curry testified he interviewed defendant on March 2, 2010. After the jury
       viewed the DVD recording, Detective Curry testified, during cross-examination, that a weapon
       had never been recovered and they had not located any physical evidence connecting
       defendant to Harvey’s death. Detective Curry acknowledged that, the day after Harvey’s death,
       Eibeck was not able to identify anyone as the person who shot Harvey. Detective Curry agreed
       Detective McDaniel prevented defendant from speaking with his grandmother and mother
       during the interrogation.

¶ 37               D. State’s Exhibit 15A–DVD Recording of March 2, 2010, Interview
¶ 38       State’s Exhibit 15A, a recording of defendant’s March 2, 2010, interview, opens with
       defendant entering the room, after removing his belt and items from his pockets. Defendant sits
       in a chair at a table and waits for more than five minutes until Detectives Curry and McDaniel

                                                   -7-
       enter the room. Detective Curry reads defendant his Miranda rights and defendant agrees to
       talk with the detectives. During the interview, defendant tells the detectives his mom gave him
       the nickname “Heavy” because he weighed 10 pounds and 12 ounces at birth, after Detective
       Curry informs defendant he is being questioned about the August 29, 2009, shooting death of
       Clifford Harvey.
¶ 39       Defendant tells the detectives he knew Harvey through mutual friends, Kevin Eggers and
       Angie Espedal, and he “got along” with Harvey. Defendant acknowledges he and Harvey had
       “a couple words” four days before Harvey’s death because Harvey had been standing on the
       street corner near where his little brothers play basketball. Defendant told the detectives
       Harvey’s presence on the corner was attracting police activity and making the block “hot.” The
       detectives and defendant agree Harvey used dope, and defendant states he believed Harvey
       was waiting on the street corner for someone to “come serve him” drugs. Defendant says he
       told Harvey to move up the street, but Harvey did not seem upset with defendant’s request.
¶ 40       Defendant states that two days after the initial conversation with Harvey, defendant went
       over to Kevin and Angie’s house, where Harvey stayed. Defendant asked Kevin to keep
       Harvey off the street corner. According to defendant, Harvey was present during this
       conversation with Kevin, but the discussion was not heated. Detective Curry tells defendant
       Kevin and Angie gave a version “pretty similar” to defendant’s story, but Kevin and Angie
       said defendant was more upset than defendant admits.
¶ 41       Detective Curry also says Doug is presently at the police station telling other detectives the
       conversation between defendant and Harvey was a little more heated. Defendant
       acknowledges the victim was mad at him, but Harvey never threatened defendant, and the two
       did not fight, it was only “words.” Defendant tells the detectives he heard about Harvey’s death
       the next morning when he went over to Kevin’s house to check on defendant’s puppy that he
       kept kenneled on Kevin’s front porch.
¶ 42       Defendant says, on August 29, 2009, he went straight home around 7 or 8 p.m., after
       working on cars in the neighborhood, and was at home with Tori Roats, her dad, and her
       brother for the rest of the night. He denies being with Dougie that night. Detective Curry tells
       defendant Harvey was with somebody on the night of his murder and asks defendant if he
       knows who that person was. Responding, defendant says he knows it was the “tall, skinny
       white boy” but defendant cannot recall his name. Detective Curry says the person’s name is
       Easton Eibeck and defendant recalls that, while he had been working on cars at Randy Cox’s
       house earlier that day, he had seen Harvey and Eibeck together pushing a bike. After Detective
       Curry asks defendant what he and Doug did after working on cars, defendant repeats that Doug
       was not with him and denies meeting up with anyone else that night.
¶ 43       Approximately 30 minutes into the interview, Detective Curry tells defendant they know
       Harvey carried a weapon and that Harvey started making threats as he approached a group of
       four men the night of his death. Detective Curry then explains to defendant that it would be
       self-defense to pull out a gun and shoot Harvey as he advanced on the group of men with a
       weapon. Detective Curry says, “[E]verybody knows [Harvey’s] nutty, everybody knows he’s
       crazy.” Detective Curry then tells defendant Easton Eibeck “sees everybody. Easton identifies
       everybody, right.”
¶ 44       Thirty-six minutes into the recording, defendant again denies being at the scene of the
       murder and requests to call his grandma. Detective McDaniel tells defendant he and two other


                                                   -8-
       people have become primary suspects in Harvey’s death. Moments later, Detective McDaniel
       states that Detective Curry has identified defendant as the “trigger man.”
¶ 45       McDaniel emphasizes that defendant needs to “throw [his] hands at the court and walk, and
       hopefully, minimize the damage” by explaining himself. Unless defendant talks, Detective
       McDaniel tells defendant, the jury will assume defendant “went over there, maliciously, to kill
       a person.” Defendant repeats that he was not present at the scene, does not know anything
       about Harvey’s murder, and does not carry a gun.
¶ 46       Detective Curry asks defendant why “everybody,” including Dougie, would say defendant
       had been present at Harvey’s shooting and defendant says he does not know why Dougie
       would say that. Detective Curry announces that Dougie told the detectives defendant was
       defending himself from that “crazy dude that started the whole thing” and that Eibeck’s story is
       similar to Dougie’s.
¶ 47       Approximately 45 minutes into the recording, defendant repeatedly requests to call his
       grandma because he would like her “sitting right here while ya’ll talk to me.” After Detective
       McDaniel tells defendant his “grandma can’t help” him, defendant asks for his mother to sit
       with him. Defendant tells the detectives “evidently ya’ll not trying to hear what I’m saying, I
       don’t have nothing to do with it, I don’t know why my name is brought up in it.”
¶ 48       Detective Curry tells defendant they “didn’t pull [his] name out of thin air” and defendant
       states:
                “What happened was ya’ll heard that me and Cliff [Harvey] had some words so
                therefore, not too long before he got killed, so therefore, ya’ll, I’m automatically a
                suspect because we had words. That’s how I see it, but I didn’t have nothing to do with
                it, and I’m telling you I didn’t have nothing to do with it, and I know I ain’t had nothing
                to do with it.”
       Detective McDaniel then reiterates that “not just one person, but multiple people” saw
       defendant at the scene of Harvey’s death. Approximately 51 minutes into the recording,
       Detective McDaniel asks defendant if he’s a “gambling man” because defendant is “getting
       ready to shoot dice with your [defendant’s] life.”
¶ 49       Detective McDaniel adds, “[A]nd I love that word, a jury of your peers, because when you
       look over you ain’t gonna see not one person that look like you, act like you.” Detective
       McDaniel continues, “So, now we’ve got stereotypes, we’ve got a jury of not your peers that’s
       gonna judge you, and we’ve got you not telling.” (Emphasis added.) Detective McDaniel
       informs defendant he needs to “explain your [defendant’s] actions and how you felt at the time
       the threat was presented to you. Notice I said that? How the threat was presented to you and
       how you handled it.” Approximately 58 minutes into the recording, defendant reiterates he
       does not know anything about the shooting, leans back in his chair, puts his arms behind his
       head, and stares at the ceiling for the next six minutes without speaking.
¶ 50       Approximately one hour into the recording, during defendant’s silence, Detective
       McDaniel tells defendant the goal is to see him “walking on the street a free man.” In further
       attempts to get a response from defendant, the detectives continue to talk at defendant, telling
       him Harvey “probably wasn’t even sane that night.” Detective Curry tells defendant,
       “[T]here’s plenty of people out there that are stickin’ up for ya. There are plenty of people that
       are running to your … trying to defend you. But you’re not trying to defend yourself.” The



                                                    -9-
       detectives continue to talk to defendant and defendant says, “[N]o, man,” and leans forward in
       his chair and puts his head in his hands on the table and begins to cry.
¶ 51       Detective Curry then asks defendant, “[D]id he come at you? He came at you, didn’t he? If
       he came at you, let me know, because I tell you what, that’s what it looks like. I sat out there
       that night and looked at everything. It looks like he came at you. And you know what, that’s
       what I believe.” Detective Curry assures defendant he was “a kid when this happened” and
       touches defendant’s arm. Defendant, while visibly crying, says, “[H]e [Harvey] said he’s got
       me now.” Aside from crying, defendant is silent for another seven minutes, while Detective
       Curry touches defendant on his shoulder and knee and states Harvey carried around “a damn
       screwdriver and threatening folks with a screwdriver.” Breaking his seven-minute silence,
       defendant asks, “[H]ow would you feel if somebody running at you swinging a screwdriver?”
       After this question by defendant, defendant does not respond to the detectives for another eight
       minutes as the detectives continue speaking to defendant before Detective Curry states, “Dan,
       you already told us what happened, you just haven’t told us why.”
¶ 52       Defendant responds, “I just wanted to make it home.” Defendant then says, “[H]e [Harvey]
       came, pulled a screwdriver, started coming towards me.” Defendant tells detectives Harvey
       was “walking fast” and “kept coming at me.” Urging defendant to continue speaking,
       Detective Curry touches defendant on his knee and shoulder. Detective McDaniel says,
       “[H]e’s [Harvey] charging, he has this screwdriver, what did you do to protect yourself?”
       Defendant, crying, responds, “I shot,” but “just wanted to scare him.” Defendant does not
       respond when Detective McDaniel asks if defendant remembers how many times he fired the
       gun at Harvey.
¶ 53       Changing topics, Detective McDaniel asks defendant if two days had passed between
       defendant’s initial confrontation with Harvey on the street corner and the night Harvey
       confronted defendant on August 29, 2009. Defendant corrects Detective McDaniel by stating it
       had been four days. Defendant tells the detectives he played basketball with children who were
       aged 16, 15, and 11 years old. Defendant states that, since he is the oldest in the group, he asked
       Harvey to stop standing on the street corner attracting attention from the police, four days
       before his death.
¶ 54       Detective Curry then says, “[T]he night that everything went down, there was four of you,
       right? You and a couple other people, right? Who was with you? Was Doug there? Was Bob
       [defendant’s cousin] there? Because these people can help you out. You know, they can say,
       ‘[H]e was crazy, he was on dope, he came at me.’ ” In response, defendant states, “[T]here
       wasn’t nobody with me.” Defendant adds, “[I]t was me walking, I was coming from the store
       and there were some guys walking down the street, they wasn’t with me.”
¶ 55       Detective Curry asks defendant what type of gun he used and what he did with the gun after
       the shooting. Defendant says he “threw it while [he] was running.” Detective Curry repeatedly
       asks defendant what type of gun defendant used. Defendant mumbles an inaudible response
       and Detective Curry loudly and clearly states, “[I]t was a revolver then, huh?” Detective Curry
       again asks defendant where he threw the weapon. Defendant responds that he “just flung it.”
       Detective Curry asks defendant, “[S]o, the boys, the other people in the area, they weren’t with
       you?” Defendant nods “yes.”
¶ 56       Defendant, while crying, tells the detectives he is a “pretty polite person” who can
       sometimes get agitated. Defendant says he is raising a baby girl, who is not his biological


                                                   - 10 -
       daughter. The detectives tell defendant they are going to get him something to eat and a
       cigarette, and defendant requests to see his mom. The detectives then leave the room.
¶ 57       After waiting approximately 15 minutes, defendant knocks on the locked door to request to
       use the bathroom. Upon his return, defendant waits alone until Detective Curry reenters with a
       cigarette. Approximately 38 minutes after the detectives left the room ending the interview,
       defendant loses consciousness and falls out of his chair to the floor.
¶ 58       Detective McDaniel returns and requests that someone call for a paramedic. Detective
       McDaniel checks for and finds a pulse but is unable to revive defendant for a few minutes.
       Defendant then awakens, crying, and the detectives place him in a chair. Defendant continues
       to sob, and coughs and gags heavily or vomits, while trying to catch his breath. Defendant tells
       the paramedics his head is pounding and he feels dizzy. The video ends with paramedics
       walking defendant out of the room.

¶ 59                             E. Trial Testimony of Dr. Jason Stringer
¶ 60       The State also presented the testimony of Jason Stringer, a physician who examined
       defendant at the emergency room after his police interview. According to Stringer, defendant’s
       chief complaints on arrival were headache and nausea. Defendant indicated to Stringer, during
       his examination, that he used marijuana, but Stringer did not observe any obvious signs of
       intoxication. On cross-examination, Stringer testified that he had not been told, prior to
       treating defendant, that defendant may have fainted.

¶ 61                            F. Trial Testimony of Forensic Pathologist
¶ 62       The State then called John Denton, the forensic pathologist who conducted Harvey’s
       autopsy. Denton testified Harvey suffered multiple linear scrapes and abrasions on the back of
       his left elbow, on his chin, and on both forearms and knees. Denton explained the direction of
       the scrapes indicate forward motion as the body moves against a rough surface. According to
       Denton, Harvey had a “lethal through and through gunshot wound” to his back, with an exit
       wound in his chest. Denton stated that Harvey’s blood tested positive for cocaine and
       marijuana. During his examination of Harvey, Denton located small copper jackets and bullet
       fragments, near the track of the wound, which he packaged and provided to the police.

¶ 63                                      G. Stipulated Evidence
¶ 64       The parties stipulated to the testimony of court reporter Kathy Smith, who would testify
       that, during the suppression hearing, Eibeck stated “I told them that I seen the butt of a gun.
       That’s all I seen.”
¶ 65       After the conclusion of the State’s evidence, defendant moved for a directed verdict, which
       the court denied. Defendant did not present evidence at trial.

¶ 66                                 H. State’s Closing Argument
¶ 67      During closing argument, the prosecutor suggested Espedal’s testimony, and defendant’s
       confession, established that defendant and Harvey had a disagreement a few days prior to
       Harvey’s death because Harvey had been standing on the street corner. The prosecutor pointed



                                                  - 11 -
       out Eibeck’s positive photo identification of defendant showed defendant was the man who
       had pulled the gun out of his waistband the night of Harvey’s murder. The prosecutor argued:
                  “And how do we know that [Eibeck’s] identification is accurate? Because he got
              the right guy. And how did we know he got the right guy? The defendant confessed.
              Out of all the people that Easton Eibeck could have picked out from Peoria, out of the
              six people that he had a choice of picking out in that photo array, what are the chances
              that he’s just going to randomly pick the guy who would later confess, who would later
              admit that he did it?”
       Turning to address defendant’s confession, the prosecutor argued defendant’s confession
       suggested self-defense because defendant wanted to minimize his involvement in Harvey’s
       death. The prosecutor noted defendant minimized the nature of the “disagreement” between
       defendant and Harvey.

¶ 68                             I. Defense Counsel’s Closing Argument
¶ 69       Defense counsel began closing argument by directing the jury’s attention to the testimony
       of the police officers. Defense counsel noted that none of the officers located any physical
       evidence connecting defendant to Harvey’s murder. Next, defense counsel addressed the
       testimony presented by Angela Espedal by arguing she lied about her marital status and she is
       an admitted cocaine user. Counsel also noted that, despite the alleged uncomfortable and
       threatening nature of defendant’s comments at her house regarding Harvey’s sale of drugs on
       the corner, Espedal did not contact police.
¶ 70       Next, defense counsel stated that Easton Eibeck, an admitted heroin user, told Curry he was
       not 100% sure of his identification of defendant. In addition, counsel referred the jury to
       Eibeck’s testimony that he could not identify who killed Harvey.
¶ 71       Turning to the interrogation, counsel stated: “Let’s talk about Detective Curry and the
       alleged confession for a moment. The State likes to use that word confession. I choose not to.
       That in mine [sic], folks, and it will be for you to determine, is something less than a
       confession.” Defense counsel also noted defendant was a “young man being questioned by two
       very seasoned law enforcement” officers in a small room, during which the officers “took
       turns” questioning defendant. Defense counsel argued the officers “worked on [defendant]
       over time in that room not letting [defendant] talk to his either [sic] grandmother or mom over
       time.” Defense counsel further asserted:
               “[A]n hour and a half into it [defendant] made a couple of comments and thereafter [the
               interviewing detectives] had surprised, supplied [defendant] with details. This is not a
               confession. This is not a product of free will. Ask yourself if what you saw is a product
               of free will or was it a product of them working on him over time. There is a
               difference.”
       Defense counsel argued Detective McDaniel was a “very smooth talking gentleman” trying to
       convince defendant to “minimize the damage” during the interrogation. Defense counsel
       continued by arguing, “Folks, you heard it. This was not a product of [defendant’s] free will.
       This was not a confession.” At that point, the State objected.




                                                  - 12 -
¶ 72      Following the State’s objection, the court requested both attorneys to approach the bench.3
       After the sidebar conference off the record, the court announced:
                   “For the record, show the parties were at side bar pursuant to the last objection
               posed by the [State]. That objection is accordingly sustained. The jury is at this time
               instructed to disregard the last comment as to [defense counsel’s] referring to the
               statement as being involuntary in nature.”

¶ 73                      J. Jury Deliberations, Posttrial Motion, and Sentencing
¶ 74       Jury deliberations began on September 21, 2011. During deliberations, the jury requested
       to view a portion of the DVD recording and the court provided the jury with an opportunity to
       review the relevant portions of the DVD. The jury concluded their deliberations by returning
       guilty verdicts on both counts, III and IV, for first-degree murder.
¶ 75       The trial court denied defendant’s amended motion for judgment notwithstanding the
       verdict or for a new trial on March 16, 2012, alleging, among other things, the trial court erred
       when it denied his pretrial motion to quash his arrest and suppress evidence. After this denial
       of a request for new trial, the court immediately began the sentencing hearing. The presentence
       investigation report showed defendant had been charged with a few previous ordinance
       violations and one misdemeanor cannabis charge. After hearing arguments from both
       attorneys, the court imposed an aggregate 65-year sentence for one count of first-degree
       murder as alleged in count three of the indictment. Defendant appeals.

¶ 76                                             ANALYSIS
¶ 77                                  I. Motion to Quash and Suppress
¶ 78       On appeal, defendant first contends the trial court erroneously denied his pretrial motion to
       quash his arrest and suppress evidence. Consequently, defendant seeks the reversal of his
       murder convictions and requests a new trial. The State does not dispute defendant was arrested
       without a warrant and directly transported to the police department for interrogation. However,
       the State claims probable cause existed for defendant’s warrantless arrest based on Eibeck’s
       positive identification of defendant as the individual who shot Harvey. Therefore, the State
       contends the confession followed a proper arrest and was admissible.
¶ 79       When reviewing a circuit court’s ruling on a motion to suppress, this court is presented
       with mixed questions of law and fact. People v. Lee, 214 Ill. 2d 476, 483 (2005). The circuit
       court’s findings of historical fact are given deference because the circuit court is in “a superior
       position to determine and weigh the credibility of the witnesses, observe the witnesses’
       demeanor, and resolve conflicts in their testimony.” Lee, 214 Ill. 2d at 483-84. These factual
       findings will be upheld on review unless such findings are against the manifest weight of the
       evidence. Id. at 483; People v. Hackett, 2012 IL 111781, ¶ 18; People v. Luedemann, 222 Ill.
       2d 530, 542 (2006).
¶ 80       In this case, during the suppression hearing, Detective Curry testified the shooting took
       place in the “900 block of Matthew Street.” Detective Curry stated that Eibeck told Detective
       Curry he was initially afraid to identify the shooter but felt safe to make an identification on


          3
           The contents of the sidebar conference are not included in the record on appeal.

                                                    - 13 -
       February 24, 2010, because Eibeck had moved out of the neighborhood. Detective Curry
       denied Eibeck was less than certain when he selected defendant’s photo.
¶ 81       However, Eibeck told the court during his suppression hearing testimony that he and
       Harvey were confronted by four men on Western Avenue immediately before the shooting.
       Eibeck explained to the judge he clearly told Detective Curry on February 24, 2010, that he
       was not 100% certain the person in the photo was the gunman. Eibeck told the court, when he
       identified defendant’s photo six months after the murder, he did so only because Detective
       Curry was “continuing” to place defendant’s photo in front of him. Eibeck denied he told
       Detective Curry he was afraid to make an earlier identification of defendant, who was known
       to him in August 2009, and advised the court the detectives “came up with that.”
¶ 82       When resolving the conflicting testimony of Detective Curry and Eibeck in order to make
       the necessary finding of fact, the court stated:
                    “Initially [Eibeck] says he didn’t know who it was but then later, I will remind you,
                that the officer said he said that he gave all of the information later because just he and
                this other person had moved, they were no longer there, and they were afraid, he had
                seen somebody get shot, he was afraid, that he was no longer afraid he said. So now he
                believes that he can give the information. That makes sense. I mean that’s not hard to–I
                mean that’s believable.”
       We give great deference to, and will not disturb, the trial court’s finding of fact that Eibeck
       selected defendant’s photo on February 24, 2010, without hesitation and provided a plausible
       explanation of his failure to do so on an earlier occasion.
¶ 83       However, on review, this court remains free to undertake its own assessment of the facts, as
       determined by the trial court, and may draw its own conclusions regarding how those facts
       impact the legal issues presented to the trial court when deciding what relief should be granted.
       Lee, 214 Ill. 2d at 484; Hackett, 2012 IL 111781, ¶ 18; Luedemann, 222 Ill. 2d at 542.
       Accordingly, we review de novo the ultimate question of whether the evidence should be
       suppressed. Id.
¶ 84       As in the case at bar, third-party information, such as Eibeck’s, will support a finding of
       probable cause for a warrantless arrest, regardless of whether the source of the information is
       an eyewitness or other witness, as long as the information provided by a third party bears some
       independent indicia of reliability. People v. Arnold, 349 Ill. App. 3d 668, 672 (2004) (citing
       People v. Sturdivant, 99 Ill. App. 3d 370, 373 (1981), and People v. Adams, 131 Ill. 2d 387,
       397 (1989)). An indicia of the reliability of information provided by a third party “exists when
       the facts learned through a police investigation independently verify a substantial part of the
       information” provided by the third party. Arnold, 349 Ill. App. 3d at 672 (citing People v.
       James, 118 Ill. 2d 214, 225 (1987)). Further, the personal reliability of the third party himself,
       or in this case, Eibeck, must also be considered in the totality of the circumstances approach to
       determine the existence of probable cause. See Adams, 131 Ill. 2d at 397. Clearly, the trial
       court in this case incorrectly believed the credibility of Eibeck was not relevant when the court
       stated it would not “get into real issues of credibility” when evaluating probable cause with
       respect to the motion to quash.
¶ 85       The case law provides that a police officer can effectuate a warrantless arrest of an
       individual if the officer has reasonable grounds to believe the person has committed an offense
       (725 ILCS 5/107-2(1)(c) (West 2010)), and, in this context, “reasonable grounds” has the same
       meaning as “probable cause.” Lee, 214 Ill. 2d at 484; People v. Tisler, 103 Ill. 2d 226, 236-37

                                                    - 14 -
       (1984). Whether there is probable cause to believe that a defendant has committed a crime is
       based on an evaluation by the court of all the information available to the police, including the
       source of the information, considered under a totality of the circumstances approach. Lee, 214
       Ill. 2d at 485. The probable cause inquiry must focus on what was done and known by the
       police officers, not on what the police officers believed, and what the facts objectively add up
       to, not what the officer believed they added up to. Id.
¶ 86        As noted by Justice McDade in her separate specially concurring decision, the State either
       did not make an attempt to secure an arrest warrant or, perhaps, was unable to secure an arrest
       warrant between February 24, 2010, and the date defendant was taken into custody several
       days later on March 2, 2010. What followed the arrest, which was not authorized by an arrest
       warrant issued by a neutral judge, was a skillful and intense custodial interrogation. As
       accurately described by Justice McDade, the coercive questioning focused primarily on
       defendant’s race and the detectives’ prediction that defendant’s guilt or innocence would be
       decided by a jury of “not” his peers who would be predisposed to convict defendant based on
       the unlawful conduct of other young black males as reported by the local media.
¶ 87        The tactics employed by the detectives were successful and yielded a confession.
       However, the commentary of Detective McDaniel, with respect to the integrity of the system
       of justice in Peoria County, is difficult to read, and even more difficult to overlook, because
       appellate defense counsel has not raised the issue of the voluntariness of defendant’s
       confession for our review. Nonetheless, while I strongly agree with all of the points raised by
       my respected colleague, Justice McDade, I share her observation that the obvious
       involuntariness of the confession is not properly before this court.
¶ 88        Instead, we must focus on whether Detective Curry had probable cause to believe
       defendant murdered Harvey, and, most importantly, whether the trial court in this case
       objectively evaluated all of the information available to Detective Curry at the time Detective
       Curry concluded there was probable cause to issue a “49 memo” to fellow officers and
       effectuate the warrantless arrest at issue. Lee, 214 Ill. 2d at 485. Contrary to the
       well-established case law, the trial court focused on only one piece of information, Eibeck’s
       photo identification, before finding probable cause existed. Of course, the trial court’s decision
       to focus on one piece of information is understandable, since the motion to suppress a murder
       confession was simultaneously considered by the court with the motion to quash the
       warrantless arrest. In fact, the trial court took care to review the contents of the videotaped
       confession, before ruling on the motion to quash the arrest. Respectfully, one must wonder
       whether the contents of the recorded confession itself may have unintentionally influenced the
       court’s finding of probable cause when defendant challenged his warrantless arrest prior to
       trial.
¶ 89        For purpose of the issue related to probable cause which is subject to our review, we focus
       on the information available to Detective Curry prior to the warrantless arrest relative to the
       factual events and the issue of Eibeck’s credibility on February 24, 2010. On August 29, 2010,
       Detective Curry learned Harvey’s body was found on Matthew Street, and he spoke to Egger
       and Espedal, who told the detective defendant and Harvey exchanged words four days before
       Harvey’s murder. In addition, the couple also told Detective Curry on August 29, 2010, that
       Eibeck was with Harvey at the time of the shooting but did not recognize the gunman.
¶ 90        The next day, on August 30, 2010, Detective Curry spoke to Eibeck, who confirmed he was
       with Harvey just before the shooting but learned from Eibeck that he could not identify the

                                                   - 15 -
       gunman and needed treatment for his heroin addiction. Detective Curry did not speak to
       Eibeck or develop new reliable information in the case for the next six months.
¶ 91       Then, six months after the murder, Detective Curry discovered Eibeck had just been
       apprehended for theft and was at the jail. Consequently, with Eibeck in custody and unable to
       avoid a conversation with Detective Curry, Detective Curry brought an array of six photos to
       the jail for Eibeck to view. Eibeck allegedly told Detective Curry he now felt safe to make the
       identification after leaving the neighborhood. However, Eibeck was apprehended by the police
       at Egger and Espedal’s residence, where he and Harvey were residing on the night of his
       murder, just before Eibeck selected defendant’s photo. While in custody on February 24, 2010,
       six months after the murder, Eibeck selected defendant’s photo as the person named “Heavy,”
       which precipitated prompt action by Detective Curry to issued the “49 memo” for a
       warrantless arrest for murder without first obtaining an arrest warrant.
¶ 92       The trial court also learned during the suppression hearing that Eibeck knew defendant by
       “face and nickname” prior to August 30, 2010, but told both Detective Curry and Harvey’s
       housemates that he did not recognize the person who shot Harvey. Under oath, Eibeck
       corroborated Detective Curry’s testimony that he told the police, on August 30, 2009, that he
       did not recognize the gunman and could not identify the shooter. In addition, Eibeck explained
       to the court, during his testimony, that it was dark at the time of the murder, he was high, and
       the events unfolded quickly. When describing the events Eibeck personally witnessed on the
       night of the murder, Eibeck testified, during the suppression hearing, as follows: “[The four
       men] just ran up on us. I seen a guy go like this (indicating), reach for what I assumed was a
       gun, and I ran from there. That was it.” Eibeck testified these events occurred on Western
       Avenue. It is undisputed that Eibeck, a convicted felon with a heroin addiction, was high on
       August 29, 2009. In addition, Eibeck reported he was suffering from drug withdrawal on
       February 24, 2010, when he selected defendant’s photo for Detective Curry on that date.
¶ 93       Detective Curry’s investigation did not uncover any physical evidence or another witness
       placing defendant either on Western Avenue in the company of four black men, or in the 900
       block of Matthew Street, at the time of the shooting. Thus, Detective Curry was unable to
       unearth any independent evidence corroborating the details reported by Eibeck. Based on an
       objective view of the totality of all of the facts and circumstances revealed to the court during
       the suppression hearing, we conclude probable cause did not exist for defendant’s warrantless
       arrest and the ensuing custodial interrogation on March 2, 2010.
¶ 94       It is well established that evidence obtained as a result of an illegal detention or arrest must
       be suppressed absent significant intervening circumstances to purge the taint of the illegal
       arrest. People v. Wead, 363 Ill. App. 3d 121, 138 (2005) (citing Dunaway v. New York, 442
       U.S. 200, 219 (1979)). Thus, inculpatory statements, made by a defendant as a result of an
       arrest without probable cause, are not admissible unless some intervening circumstances exist.
       Wead, 363 Ill. App. 3d at 138. In the case at bar, there were no intervening circumstances to
       purge the taint of the unlawful arrest, therefore, defendant’s videotaped statement is
       inadmissible and should have been suppressed. For this reason, we reverse defendant’s
       convictions for murder and remand for further proceedings since defendant did not request this
       court to review the sufficiency of the State’s evidence absent the coerced confession.




                                                    - 16 -
¶ 95                                         II. Closing Argument
¶ 96        As discussed above, this panel, with one dissenting justice, has determined that defendant’s
        murder conviction should be reversed and the matter remanded for further proceedings
        because defendant has not requested this court to evaluate the sufficiency of the evidence as
        part of this appeal. A determination of whether the State wishes to retry defendant will be
        determined in the trial court. Therefore, it is unnecessary to address defendant’s second
        contention of error pertaining to closing argument since the conviction is being set aside on
        other grounds.
¶ 97        However, in the interest of providing a complete analysis of the issues raised in this appeal,
        even though the closing argument issue is not outcome determinative, I wish to express my
        own views with respect to whether plain error is present in this record because of the trial
        court’s ruling during closing argument. My respected colleagues do not share my views,
        singularly expressed as set forth below.
¶ 98        Defendant urges this court to consider whether the trial court prevented defense counsel
        from fully developing his argument that defendant’s confession was unreliable during defense
        counsel’s closing argument. I agree with the State that the error, if any, was not properly
        preserved for our review and can only be considered if it rises to the level of plain error. I
        believe the record reveals plain error occurred. Plain error allows this court to consider
        forfeited issues when a clear or obvious error occurred and (1) the evidence is so closely
        balanced that the error alone threatened to tip the scales of justice against defendant; or (2) the
        error is so serious that it affected the fairness of defendant’s trial and the integrity of the
        judicial process, regardless of the closeness of the evidence. People v. Herron, 215 Ill. 2d 167,
        178-79 (2005).
¶ 99        The first step in determining whether plain error occurred is to determine whether error
        occurred at all. People v. Sykes, 2012 IL App (4th) 111110, ¶ 31. In a criminal trial, defense
        counsel must be given an opportunity to fully and fairly argue his cause. People v. Crawford,
        343 Ill. App. 3d 1050, 1059 (2003). Yet, the regulation of the substance and style of closing
        argument lies within the trial court’s discretion and, thus, the court’s determination of the
        propriety of the remarks will not be disturbed absent a clear abuse of discretion. People v.
        Meeks, 382 Ill. App. 3d 81, 84 (2008). In this case, after attacking the credibility of the State’s
        witnesses, defense counsel turned his focus toward attacking the reliability of defendant’s own
        words, his confession, and the cornerstone of the State’s case.
¶ 100       Defense counsel argued the “seasoned” detectives relentlessly questioned defendant for
        two hours, in a small room, after preventing defendant from consulting with his grandmother
        or mother during his interrogation. In addition, defense counsel argued defendant did not have
        any personal knowledge of what happened on the night of the murder. In fact, according to
        defense counsel’s argument, defendant did not provide a single incriminating detail which was
        not first revealed to defendant by the detectives. In other words, it appeared defendant
        regurgitated the details the detectives provided to him in order to simply end the uncomfortable
        interrogation.
¶ 101       Turning to Detective McDaniel, who did not testify before the jury, defense counsel
        described him as the “very smooth talking gentleman” on the recording. Defense counsel
        observed, “[t]his is not a confession. This is not a product of free will,” and separately
        emphasized, “Folks, you heard it. This was not a product of [defendant’s] free will. This was
        not a confession.”

                                                    - 17 -
¶ 102        At this point, the prosecutor objected and defense counsel stopped his closing argument.
        The trial court sustained the State’s objection and stated:
                     “For the record, show the parties were at side bar pursuant to the last objection
                 posed by the [State.] That objection is accordingly sustained. The jury is at this time
                 instructed to disregard the last comment as to [defense counsel’s] referring to the
                 statement as being involuntary in nature.”
        I note, after the court’s ruling, defense counsel did not continue his discussion of Detective
        McDaniel’s role in the confession. Instead, defense counsel simply concluded his closing
        argument.
¶ 103        By instructing the jury to “disregard” defense counsel’s last comment that the confession
        was “involuntary,” the court effectively negated defense counsel’s closing argument with
        respect to the reliability of defendant’s confession. The case law provides a defendant may
        always present evidence during trial to challenge the reliability of a confession which the trial
        court found to be voluntary and admissible prior to trial. People v. Jefferson, 184 Ill. 2d 486,
        498 (1998). Based on this case law, I submit defense counsel should have been allowed wide
        latitude to fully and fairly summarize how Detective McDaniel’s comments resulted in a false
        confession the jury should reject. I conclude the trial court erred by advising the jury to
        disregard defense counsel’s comment about defendant’s free will.
¶ 104        Next, I consider whether the evidence was closely balanced. When analyzing whether the
        State’s evidence in this case was closely balanced, a court must make a common sense
        assessment of the evidence within the context of the circumstances of the individual case.
        People v. Adams, 2012 IL 111168, ¶ 22.
¶ 105        I point out, as a former prosecutor, that the prosecution cannot sustain its burden of proof,
        beyond a reasonable doubt, when an accused’s out-of-court confession is not corroborated by
        some independent evidence offered by the State. People v. Lara, 2012 IL 112370, ¶ 17. This
        case law grows out of a well-founded, historical mistrust of out-of-court confessions resulting
        from an individual’s tendency to confess, for various psychological reasons, to offenses he or
        she did not commit. Id. ¶ 19. In this case, defendant told the detectives that Harvey was
        “walking fast” and “kept coming at me [defendant]” before he fired the gun.
¶ 106        In stark contrast, the State’s undisputed physical evidence proved Harvey suffered a single
        gunshot wound in the back while running away from the gunman. The State’s evidence did not
        corroborate, and in fact contradicted, defendant’s confession. Further, both detectives
        appeared unaware at the time of the interrogation that Harvey’s bloody chest wound, visible on
        the night of the murder, was the exit point, rather than the entry point, for the fatal shot.
        Defendant’s confession mirrored the misunderstanding of the detectives and was refuted by
        the physical evidence introduced at trial.
¶ 107        After carefully considering all of the evidence presented by the State concerning
        defendant’s motive, opportunity, and confession, I conclude the evidence was less than closely
        balanced and, in fact, was insufficient. Therefore, I would not only reach the closing argument
        issue based on plain error, I would reverse the jury verdict on the basis of the court’s ruling
        truncating defense counsel’s closing argument. However, my respected colleagues correctly
        point out this closing argument issue need not be addressed in light of our non-unanimous
        decision on the issue of probable cause.



                                                    - 18 -
¶ 108                                        CONCLUSION
¶ 109      For the foregoing reasons, this court reverse’s the judgment of the circuit court of Peoria
        County after considering the merits of the probable cause issue alone, and remands for further
        proceedings.

¶ 110      Reversed and remanded.

¶ 111       JUSTICE McDADE, specially concurring.
¶ 112       The author judge in this case has concluded, in considering the totality of the circumstances
        of the investigation into the shooting death of Clifford Harvey on August 29, 2009, that the
        police lacked probable cause to arrest defendant, Daniel Jackson. In light of the fact that the
        police were unable to find any forensic evidence of either Jackson’s presence at the scene or
        complicity in the crime other than Easton Eibeck’s avowedly extorted and ambivalent
        identification of Jackson’s picture in a photo array, I would concur with the carefully reasoned
        holding that the police lacked probable cause to arrest.
¶ 113       Moreover, I believe the conduct of the primary investigators strongly suggests that they
        knew they were lacking probable cause. Eibeck’s problematic identification from the photo
        array was secured on February 24, 2010. When Jackson was taken into custody on March 2,
        2010, six days later, that arrest was not pursuant to a warrant approved by a neutral magistrate.
        Instead, Detective Curry issued something he called a “49 memo” advising other officers that
        he had probable cause to arrest Jackson and directing that the suspect be picked up. There was
        more than enough time to have gotten a proper arrest warrant. The fact that the detectives did
        not have a warrant supports a reasonable inference that either they or a judge recognized that
        they did not have probable cause. For this reason and the other reasons discussed in the
        author’s analysis, I concur in the determination that the police lacked probable cause to arrest
        Daniel Jackson and that the motion to suppress should have been granted. I agree with remand
        for a new trial without any evidence, including the confession, improperly secured in the
        absence of probable cause.
¶ 114       Because I agree with the probable cause finding, I do not reach the closing argument issue.
¶ 115       I also write separately to address an issue which is not properly before us in this
        appeal–whether the trial court erred in finding, on the motion to suppress, that Daniel
        Jackson’s confession was voluntary. The two law enforcement officers interrogating Jackson
        on March 2, 2010–Detective Curry and Detective McDaniel–are, as investigating officers,
        integral parts of a criminal justice hierarchy charged, at interlocking levels, with finding those
        who may have committed crimes and subjecting them to criminal procedures designed to
        ascertain their guilt or innocence. The conduct of the police officers and the integrity of their
        investigation have a profound impact on the correctness of the ultimate outcome of a case. In a
        case such as this where their efforts result in a confession, their impact is very often
        dispositive.
¶ 116       The DVD demonstrates that Daniel Jackson’s confession was coerced, garnered by these
        officers, and, therefore, involuntary.
¶ 117       The coercion occurred in plain sight and was clearly shown on the DVD that was reviewed
        by two circuit court judges prior to finding, inexplicably, that the confession had been
        intelligently, freely and voluntarily given. Although I view the entire interrogation as rife with

                                                    - 19 -
        prohibited conduct casting doubt on its reliability, I believe actual coercion is more than amply
        documented by a single period of approximately 6 minutes, shown, roughly, between 50:29
        and 57:00 of the DVD.
¶ 118       A little over 50 minutes into the tape, Detective McDaniel, who until that point had mostly
        sat quietly while Detective Curry took the lead, became actively and aggressively involved.
        His trigger appears to have been Jackson’s requests that he be allowed to have, first his
        grandmother and, failing that, his mother, in the room with him. After assuring Jackson that
        these family members could not help him, McDaniel gets to work. He suggests some
        understanding of Jackson and his situation. It is clear that McDaniel, like Jackson, is black and
        he strengthens this connection by telling Jackson he lived in a neighborhood in Chicago where
        “shit like that happened.” He tells him that “the common person will look at this and say you
        did it.”
¶ 119       Pointing to Curry, McDaniel tells Jackson that “he has people who were there who’ll stand
        up and testify you did it. You may find someone who’s a relative–you understand I’m saying
        who’s a relative–to say you were on Western Street” (and Curry adds “or your baby mama”),
        “but people he [Curry] has talked to are believable because they have no reason, nothing to do
        with you.”
¶ 120       McDaniel then asks Jackson if he is a gambling man and, when he says he is not, the
        detective demands, “monopoly? checkers? *** shooting dice?” and Jackson says he has shot
        dice with his cousin. McDaniel then tells him he is shooting dice with his life. “You are
        shaking the dice right now. Either you can roll right, tell Detective Curry what’s going on,
        shake your hands at the court and hopefully minimize the damage that has been done or you
        can wait and see what’s in our hand, see how many dice we’re gonna throw at you when it
        comes time for a trial. We’re giving you the opportunity to explain yourself, explain your
        actions. Don’t let nobody else explain your actions ’cuz you’re not gonna like the outcome if
        somebody has to explain what’s going on with you.”
¶ 121       McDaniel continues:
                      “Okay, if you haven’t paid any attention, young man, to the media–and the media
                 does a lot of things. Every time you open up the newspaper, what do you see? [Jackson
                 is silent.] You don’t open up newspapers? [No.] Okay, do you look at the news? I’m
                 talkin’ about violence. Every time I turn on the news I know what I see. When you turn
                 on the TV what do you see? Every time they’re talking about a shooting in Peoria,
                 who’re they talking about? Every time you hear about brawls at the club, who they
                 talkin’ about? Young, African American males, okay? So now we got the media
                 drumming up that we just buck-assed wild and acting a fool, right? The judges have
                 seen and they heard it–they heard it all, okay. So now you’ll come in front of one and
                 they’ll hear it and they’ll ask if you want to plead innocent or guilty and you’ll say ‘not
                 guilty.’ So they’ll say okay, you choose. Jury trial? Bench trial? Now, this is what you
                 need to be concerned about. Those same people who open up the paper every day or
                 look at the news see how wild black folks are. What do you think is going to happen to
                 you when you walk in front of them? How do you think they’re going to view you? Are
                 they gonna view you for the government thing that your parents gave you or are they
                 gonna start workin’ off of what? Mere stereotypes of what the hell’s going on down in
                 the south end? And what are the stereotypes nowadays of young black men between the
                 ages of 13 and 24? What they think we’re doing? C’mon, it’s a honest question. What

                                                     - 20 -
                 do they think we’re doing? Want me to answer for you? Robbing, stealing, shooting,
                 killing, making babies, ain’t taking care of babies, they ain’t working, they ain’t going
                 to school, they got idle time on their hands; and they get tired of that shit.
                      So now you think, okay, that you’re gonna get a jury of your peers. And I love that
                 word, a jury of your peers, because when you look over you ain’t gonna see not one
                 person that look like you, act like you. They’re not gonna understand how the hype is
                 hanging out on the corner acting like a damn fool because they are law-abiding citizens,
                 because they pay taxes. They gonna pick up the phone and call the police and let us do
                 our job. They ain’t gonna go over there and handle it day after day after day running
                 their mouth and all that other stuff. They gonna call the police. You understand where
                 I’m going with this, right? [Jackson says ‘I understand.’] So now, we got stereotypes,
                 we got a jury of not your peers that’s gonna judge you, and we got you not telling.
                 You’re gonna have all these people telling, no matter what their backgrounds. They
                 could be drug addicts, they could be your friends getting up there testifying about how
                 you were there and how you *** how my partner plays it–the dude got wild, you pulled
                 out a weapon, you took care of the business. How is it gonna sit for you? I can’t tell you
                 what to do; we can only present what you’re lookin at, okay? And we hope that at some
                 point, you become a man and all you have is your word. Explain your actions. Don’t
                 worry about anybody else’s actions around you. Explain your actions and how you felt
                 at the time the threat was presented to you. Notice how I said that; how the threat was
                 presented to you and how you handled it.” (Emphases added.)
        The foregoing excerpt does not reflect all of the references to newspapers and television, nor
        does it include a statement that Jackson is about to brand himself as a cold-blooded killer, but it
        amply demonstrates the tenor of what Jackson was told.
¶ 122        Detective McDaniel has just told Jackson that he needs to confess that he killed Clifford
        Harvey in self-defense because he cannot get a fair trial in Peoria because he is a young,
        African American male–something he has no power to change. He told him that the judges and
        the potential jurors have been reading the media coverage of what is going on in the south end,
        they are sick of it, and they will be working off of stereotypes when he appears before them for
        trial. Moreover, not only will the stereotypes apply to him, they will also negate the credibility
        of any witnesses he might call.
¶ 123        The bone-chilling subtext in McDaniel’s virtual monolog is that the police could pick up
        any young African-American male and he could be convicted, even if he does not confess,
        because the judges and jurors will be driven by media-hyped stereotypes and either will not
        hear or will not be open to any defense he would put on. It is hard to imagine anything more
        blatantly coercive than telling a suspect, whether it is true or false, that he needs to confess to
        killing the victim, claim self-defense and minimize his damages because, even if he is
        innocent, our system of justice will not work for him because he is young and black and male.
¶ 124        There is no more damning evidence that can be presented against a criminal defendant than
        his or her own confession of guilt. If the confession is on audio/video tape and the jury can see
        it, it can become even more potent. The court’s finding that a confession was voluntary
        reduces, as a practical matter, the obligation to carefully evaluate its reliability. There is no
        need for the fact finder to weigh the evidence against the defendant–he confessed. Nor is there
        any need to consider anything raised in defense–she confessed. All of the processes set up to


                                                    - 21 -
        test the strength and persuasiveness of the extrinsic evidence, if any, are obviated–he
        confessed.
¶ 125       As Justice Brennan, dissenting from the decision in Colorado v. Connelly, 479 U.S. 157
        (1986), and citing to the Supreme Court’s decision in Escobedo v. Illinois, 378 U.S. 478
        (1964), stated:
                 “ ‘We have learned the lesson of history, ancient and modern, that a system of criminal
                 law enforcement which comes to depend on the “confession” will, in the long run, be
                 less reliable and more subject to abuses than a system which depends on extrinsic
                 evidence independently secured through skillful investigation. [Escobedo, 378 U.S. at
                 488-89.]” Connelly, 479 U.S. at 181 (Brennan, J., dissenting, joined by Marshall, J.).
        Justice Brennan continued:
                      “Our distrust for reliance on confessions is due, in part, to their decisive impact
                 upon the adversarial process. Triers of fact accord confessions such heavy weight in
                 their determinations that ‘the introduction of a confession makes the other aspects of a
                 trial in court superfluous, and the real trial, for all practical purposes, occurs when the
                 confession is obtained.’ [Citations.] No other class of evidence is so profoundly
                 prejudicial. [Citation.] ‘Thus the decision to confess before trial amounts in effect to a
                 waiver of the right to require the state at trial to meet its heavy burden of proof.’
                 [Citation.]
                      Because the admission of a confession so strongly tips the balance against the
                 defendant in the adversarial process, we must be especially careful about a confession’s
                 reliability.” Id. at 182.
¶ 126       It is also worth noting that beyond the violation of a defendant’s constitutional right to due
        process, a coerced confession that is also false serves no one. It creates a false sense of
        retributive justice for the victim’s family and a false sense of security for the community
        because the perpetrator is still at large. If that perpetrator is eventually found, the taxpayers
        become liable for reparations for the wrongful prosecution and imprisonment.4 Nobody wins.
¶ 127       So, whether or not a confession is, in fact, freely given and reliable is critical.
¶ 128       As set out by our supreme court in People v. Gilliam, 172 Ill. 2d 484, 500-01 (1996):
                      “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;


            4
              According to a 2011 study done by the Better Government Association and the Center on
        Wrongful Convictions of Northwestern University School of Law, between 1989 and 2011, Illinois
        taxpayers incurred costs of $214,000,000 due to wrongful convictions occurring after 1976. John
        Conroy & Rob Warden, A Tale of Lives Lost, Tax Dollars Wasted and Justice Denied,
        http://www.bettergov.org/ investigations/wrongful_convictions_1.aspx. Of that amount $156,000,000
        was actually paid as settlements and judgment to wrongfully convicted parties. Of the 85 wrongful
        convictions studied, 33 were attributable to false confessions. A 2013 update to the study showed an
        additional $39,000,000 in settlements and judgments has been paid, bringing the total of compensation
        to $195,000,000.

                                                     - 22 -
                 the duration of the questioning; and any physical or mental abuse by police, including
                 the existence of threats or promises. [Citations.]” Id. at 500-01.
        Stated more generally, our test for assessing the voluntariness of a confession 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.” Id. at
        500.
¶ 129       The portion quoted above (six minutes) is enough to establish that the confession was
        coerced/involuntary. The remainder of the interrogation, however, supports this conclusion.
¶ 130       There are four elements of the interrogation that support the finding of coercion. Because
        the author has discussed the content of the DVD at length, my observations are noted only
        generically. First, the detectives grossly and persistently overstate the strength of the evidence
        they claimed to have against Jackson. They downplayed the ambivalence of Easton Eibeck’s
        alleged identification of Jackson in the photo array and ignored Eibeck’s insistence that he had
        run away before the shooter even drew the weapon from his pocket. Both detectives drummed
        in that “everyone” put Jackson at the scene and he had been identified as the “trigger man.”
¶ 131       Second, they kept pushing that this was justifiable self-defense–Harvey was a hateful and
        hated man and had attacked Jackson with a screwdriver. Jackson needed to “minimize the
        damage,” tell his own story; he needed to become a man. They told him he dictates how much
        time he gets; their goal is to “see you walking on the street as a free man but only you can
        control that.” They suggest he will go free if he just tells all that happened. They promise to tell
        the State’s Attorney it was self-defense and Jackson is not a bad person. They became his
        buddies. Several times Curry squeezes Jackson’s shoulder and pats his leg in seeming support.
        Just tell us why you did it and then you can get on with your life. While I acknowledge that
        officers are allowed to lie during interrogations, these untruths, in combination with the other
        factors, support a find of coercion.
¶ 132       Third, they feed him all the facts of the shooting (except the type of gun, about which they
        give him a 50/50 choice–pistol or revolver?). They do not, however, tell him the names of the
        other three alleged participants in the shooting, and, as part of his “confession,” he insists he
        was the only person there, implicating no one else even though the detectives have assured him
        the others implicated him. We can reasonably infer that he does not name them because he
        does not know who the participants were.
¶ 133       Fourth, there are the long periods of silence seen on the tape. Jackson testified that he
        stopped talking because he was trying to exercise his right to remain silent. But, although he
        asked to have his grandmother or his mother in the room with him, he never asked for a lawyer.
        The law is clear that “[o]nce the right to remain silent has been waived, it can be invoked only
        by a defendant’s positive assertion that he wants to remain silent.” People v. Patterson, 217 Ill.
        2d 407, 445 (2005). It is not clear to me that the police have any obligation to advise a suspect,
        as part of the Miranda warning or otherwise, about how to invoke that right. I do not, however,
        think it is sufficient to say, as Detective Curry said:
                 “You’ve got the right to remain silent; anything you say can and will be used against
                 you in a court of law; you’ve got the right to talk to a lawyer and have him present with
                 you while you’re being questioned; if you can’t afford to hire a lawyer, one will be
                 appointed to represent you before any question if you wish; if you decide at any time to
                 exercise these rights and not answer any questions or make any statements [pause],
                 okay. Do you understand each of these rights as I’ve explained to you? [Jackson says,

                                                     - 23 -
                ‘uh, huh.’] Having in mind these rights, do you wish to talk to me and Detective
                McDaniel right now? [Jackson says, ‘well, yeah, I’d be willing to talk to you.’]”
                (Emphasis added.)
        The italicized language above seems to imply that silence is sufficient to exercise his right to
        remain silent. This clearly misguides Jackson as to the applicable law.
¶ 134      For all of these reasons, I believe the DVD in the record more than sufficiently
        demonstrates that Jackson’s confession was coerced, involuntary, and unreliable.

¶ 135        JUSTICE HOLDRIDGE, dissenting.
¶ 136        I would find that the trial court correctly denied the defendant’s pretrial motion to quash his
        arrest and suppress evidence. When reviewing a circuit court’s ruling on a motion to suppress,
        mixed questions of law and fact are presented. People v. Lee, 214 Ill. 2d 476, 483 (2005). The
        circuit court’s findings of fact are entitled to deference and these findings will be upheld on
        review unless the findings are against the manifest weight of the evidence. People v. Hackett,
        2012 IL 111781, ¶ 18. While we review the ultimate question of whether evidence was
        properly suppressed, we must do so only after giving due deference to the factual conclusions
        of the trial court. People v. Luedemann, 222 Ill. 2d 530, 542 (2006). My disagreement with the
        majority and the special concurrence is predicated on whether the trial court properly weighed
        the credibility of the eyewitness, Easton Eibeck. Detective Curry testified at the suppression
        hearing that Eibeck had provided key information that allowed Curry to identify the defendant
        as the person who shot the victim. The majority goes into great detail to show that Eibeck’s
        identification of the defendant was subject to some credibility issues. The trial court likewise
        noted the inconsistencies in Eibeck’s testimony but ultimately found that the evidence
        presented at the suppression hearing supported a finding that the defendant’s confession was
        admissible. The court specifically found that Eibeck’s initial reluctance to cooperate followed
        by his willingness to cooperate “made sense” and was “believable.” Unlike the majority, I
        would allow the trial court to make that credibility determination. If Eibeck’s statements to
        Curry and testimony in the suppression hearing were credible, as I believe they were, then
        applying these factual findings allows us to conclude that the arrest was lawful. I would find,
        therefore, that the court properly denied the defendant’s motion to suppress.
¶ 137        I also disagree with my colleagues over the relevance of the statements made by Detective
        McDaniel regarding his opinion of the defendant’s chances of receiving a fair trial.
¶ 138        Finally, I would also find no error occurred during the closing argument. As I would find
        no error occurred, I would not address the issue under the plain-error doctrine. It is well settled
        that the trial court may regulate the substance and style of closing argument and its rulings on
        these matters will not be overturned on appeal unless they constitute a clear abuse of
        discretion. People v. Meeks, 382 Ill. App. 3d 81, 84 (2008). The defendant maintains that the
        trial court erred in sustaining the prosecution’s objection to the defense counsel’s argument
        that his confession was “involuntary.” Justice Wright would find this to be reversible under the
        plain-error doctrine. I disagree. While the court sustained an objection to referring to the
        defendant’s confession as “not the product of free will” it nonetheless allowed counsel’s other
        comments regarding the confession to remain for the jury to consider. Given the totality of the
        defense counsel’s closing argument, it simply cannot be said that the trial court abused its
        discretion by not permitting the counsel to characterize the defendant’s confession as
        involuntary. I would, thus, find no error.

                                                     - 24 -
¶ 139   For the foregoing reasons, I would affirm the trial court.




                                               - 25 -
