                                     2015 IL 117242



                                       IN THE
                               SUPREME COURT
                                           OF
                         THE STATE OF ILLINOIS



                                   (Docket No. 117242)

       THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v. CAVINAUGH
                           HUGHES, Appellee.


                            Opinion filed December 17, 2015.



        CHIEF JUSTICE GARMAN delivered the judgment of the court, with opinion.

        Justices Freeman, Karmeier, and Theis concurred in the judgment and opinion.

        Justice Burke specially concurred, with opinion, joined by Justices Thomas and
     Kilbride.



                                        OPINION

¶1       Defendant Cavinaugh Hughes was convicted in a bench trial of first-degree
     murder in the 2005 shooting deaths of Elijah Coleman and Joshua Stanley.
     Coleman was a 68-year-old man shot multiple times at his Chicago home in a
     botched robbery on November 18, 2005; Stanley was defendant’s alleged
     coconspirator, gunned down in an alley the next day. Defendant’s own statements
     in taped police interrogation were admitted as evidence against him at trial.

¶2      Relevant to this appeal, defendant sought suppression of those statements. He
     argued they were involuntary due to police questioning him off-camera and without
     Miranda rights, and due to physical coercion from handcuffs kept on him an
     excessively long time. The circuit court of Cook County denied that motion.
     Defendant brought it up again in his posttrial motion, which was also denied.

¶3       The appellate court concluded the confession should have been suppressed, due
     to doubts it was voluntary. The appellate court reached this conclusion based on
     defendant’s age, educational level, sleep and food deprivation, prior substance
     abuse, deceptive conduct by police, length of interrogation, a coercive atmosphere,
     lack of experience with the criminal justice system, and use of marijuana while in
     police custody. The appellate court reversed and remanded for a new trial. 2013 IL
     App (1st) 110237. It also corrected defendant’s mittimus, in the event he should be
     convicted again. Id. This court granted the State’s petition for leave to appeal. Ill. S.
     Ct. R. 315 (eff. July 1, 2013).



¶4                                     BACKGROUND

¶5        Elijah Coleman was shot multiple times as he opened his front door, in a home
     invasion robbery attempt. He suffered gunshot wounds to his left thigh and knee
     and a gunshot wound in his right ear, and he died in the entryway to his home. The
     trial court heard evidence that Coleman was targeted due to a rumor he had won the
     lottery. Coleman’s grandnephew attended school with Joshua Stanley, who
     embarked on a plan to rob Coleman. Stanley, 16, was gunned down in an alley the
     night after Coleman’s killing. He suffered gunshot wounds to his left abdomen, left
     shoulder, left arm, right thigh, and right lower leg, and was pronounced dead at a
     hospital. Parked nearby was a 2001 Impala belonging to Jetun Coburn, who was at
     that time the girlfriend of Dorian Skyles, then aged 32. That Impala had altered
     temporary plates on it, with the registration address (but not the owner name) of
     those plates being defendant’s.

¶6       Coburn had reported the Impala as stolen, but Chicago police detectives
     questioned her, and her responses led police to question Skyles. Police also
     questioned Cordell Matthews, aged 17, and the statements of Skyles and Matthews
     led police to seek the arrest of defendant.

¶7       Defendant, meanwhile, had left the state for Michigan and would not be
     brought into custody for another 11 months. On October 26, 2006, two detectives
     traveled to Kalamazoo County, Michigan, in a rental car to bring defendant back to

                                               -2-
       Chicago for interrogation. Because they were traveling in a rental car, they kept
       defendant handcuffed behind his back for the ride back from Michigan. One of the
       detectives estimated that ride to take about an hour.

¶8         Detectives placed defendant in an interrogation room with an electronic
       recording device already activated. He implored them to remove the handcuffs and
       expressed relief when detectives removed them. Detectives Patrick Ford and
       Robert Brannigan began interrogating defendant around 3:30 p.m. Questioning
       continued on and off over the course of several hours, with defendant repeatedly
       denying having pulled the trigger in either death. 1 Around 12:21 a.m., defendant
       admitted to throwing the weapon used to kill Stanley in the river, but he still
       maintained Skyles had been the one to kill both Stanley and Coleman. Around
       1 a.m., defendant admitted to having shot Stanley, after detectives recounted that
       defendant had changed the plates on the Impala, ended up with the gun, and told
       Matthews he had shot Stanley. Detectives additionally told defendant that people
       looking out their windows had seen a suspect that resembled defendant and not
       Skyles, a claim that was not supported by any evidence brought out at trial.

¶9         Defendant agreed to sit for a polygraph examination to be taken in the morning.
       Detectives instead returned for him around 2:30 a.m. From about 3:30 to 4 a.m.,
       defendant answered polygraph detective Tina Figueroa-Mitchell’s questions,
       repeatedly denying that he had a gun in Coleman’s house. Around 4:30 a.m.,
       Figueroa-Mitchell returned to tell defendant he had repeatedly lied about having a
       gun in Coleman’s house. She emphasized it was important for defendant to show
       remorse. Shortly before 5 a.m., defendant stated he and his coconspirators had
       expected a younger man to come to the door with a gun, and the plan had been for
       defendant to shoot that man twice in the legs. Defendant stated Stanley was in front
       of him, and that defendant fired twice at Coleman’s legs without seeing that he was
       an older man. Figueroa-Mitchell then brought in the other two detectives, and
       defendant told them that he shot Coleman in the legs.

¶ 10       Defendant later filed a motion to suppress all statements he made to police
       subsequent to his arrest. The motion asserted that prior to interrogation, defendant
       was not advised of his right to remain silent, “informed that anything he might say
       or do could be used against him in court,” informed of his right to counsel,
       informed he had a right to have a lawyer present during the interrogation, or

           1
           The appellate court decision contains an extensive description of the interrogation. See 2013
       IL App (1st) 110237, ¶¶ 16-34.
                                                     -3-
       informed that he would be provided with representation in the event he was
       indigent. It also stated that “due to the physical, physiological, mental, educational,
       psychological state, capacity and condition of the defendant, he was incapable and
       unable to appreciate and understand the full meaning of his Miranda rights and any
       statements w[e]re therefore not the free and rational choice of the accused and was
       not made voluntarily, knowingly and intelligently in violation of the 5th and 4th
       Amendments to the Constitution of the United States.” The motion stated “the
       statements sought to be suppressed were obtained as a result of interrogation which
       continued after the defendant had elected to remain silent and/or had elected to
       consult with an attorney prior to further questioning in violation of the 5th and 14th
       Amendments to the Constitution of the United States.” The motion further stated
       “the statements sought to be suppressed were obtained as a result of psychological
       and mental coercion illegally directed against the defendant and that such
       statements were, therefore, involuntary in light of the 5th and 14th Amendments to
       the United States Constitution.” It then made an identical assertion, but with regard
       to physical coercion. The motion then repeated, word for word, the statement about
       psychological and mental coercion. It then stated “the statement[s] sought to be
       suppressed were obtained as the product of and as the result of confronting the
       accused with certain evidence which had been obtained in violation of the
       defendant’s 4th amendment[] protection against illegal search and seizure,” and “as
       the produc[t] of and as the direct and proximate result o[f] confronting the accused
       with the certain material misrepresentations in violation of the 5th and 14th
       Amendments to the United States Constitution.” Finally, the motion stated that all
       “communications, confessions, statements, admissions, or tests executed by the
       defendant were elicited in violation of his constitutional rights under the Fourth,
       Fifth, Sixth, and Fourteenth Amendments to the United States Constitution of the
       State of Illinois” and requested a pretrial suppression hearing “to determine if the
       nature of such statements were voluntary.”

¶ 11       At the hearing on the motion to suppress on July 20, 2009, defendant’s trial
       counsel first presented two lines of argument: that the detectives cuffed defendant
       too uncomfortably for the ride down from Michigan, and that detectives questioned
       him on the drive down, without having informed him of his Miranda rights and
       without video recording. Defendant’s trial counsel acknowledged the breadth of the
       motion to suppress, stating “those are the grounds on which we will be proceeding
       because we have filed a general motion. I just want to give notice to counsel those
       are the grounds we will be proceeding on.” Apparently in response to discussion

                                                -4-
       that took place off the record, counsel asked one of the assistant State’s Attorneys,
       “Is that what you are asking, Miss Gonzalez?” Gonzalez responded in the
       affirmative.

¶ 12       The State then called Detective Patrick Ford, who recounted how he took
       custody of defendant. Ford stated he read defendant his Miranda rights from his
       Fraternal Order of Police book upon taking him into custody. Ford testified that
       defendant indicated he understood his rights and that he wanted to make a
       statement, but Ford told him it would have to wait until they arrived back at the
       Area Two station. Ford indicated he had no conversations with defendant about the
       murders, aside from the ones video recorded at Area Two. On cross-examination,
       Ford testified that he read defendant his Miranda rights at both the jail in Michigan
       and at Area Two on video, to avoid any mistakes about whether he had read them to
       defendant. Ford also acknowledged that he had refused defendant’s requests to be
       cuffed in a different way, as being cuffed behind his back was uncomfortable for
       defendant, a large man. Defendant’s trial counsel also posed brief questions about
       the detectives’ persistence in asking questions of defendant after he gave
       exculpatory answers.

¶ 13       The State then called Detective Figueroa-Mitchell. On direct examination, she
       testified that defendant had been read his Miranda rights before the polygraph
       examination, had consented to the test with a written form, and had no off-camera
       conversations with her. Asked by the State if she had any difficulty in
       communicating with defendant, she replied that he “answered in an appropriate and
       timely manner,” and that he had never complained about the way he was treated by
       other police personnel. On cross-examination, defense counsel asked questions
       about whether the detectives would have been able to observe Figueroa-Mitchell’s
       questioning of defendant, and whether this would have been obvious to defendant.
       Defense counsel then asked about the purpose of the test and what
       Figueroa-Mitchell told the detectives afterward. Figueroa-Mitchell responded that
       she aimed to find out the truth, and that she had told the detectives defendant did
       not pass.

¶ 14       The DVDs of defendant’s interrogation were entered into evidence, and the
       parties stipulated to the content of the transcripts of defendant’s interrogation. The
       State called no further witnesses, and defendant rested. In closing arguments on the
       motion, defense counsel argued that Detective Ford lacked credibility in explaining
       that he had read defendant his Miranda rights in Michigan, and that detectives
                                               -5-
       admitted handcuffing defendant in a way that caused him discomfort and pain.
       Defense counsel concluded by arguing the lack of reliable evidence that defendant
       received his Miranda warnings or that all statements were on video. “For that
       reason, the reasons that we have given, we would ask that you grant our motion to
       suppress statement.” On rebuttal, defense counsel made reference to the length of
       the interrogation to bolster the argument that the court should infer that detectives
       interrogated defendant on the drive from Michigan: “As you can see it is numerous
       DVDs where the questioning continues and continues until they get the statement
       they want. I think it is not credible to believe they would wait an hour and a half
       when they have him, and apparently for whatever reasons he is talking.”

¶ 15       Ten days later, the court ruled that defendant’s confessions would not be
       suppressed. The court summarized the testimony heard and noted the allegations of
       physical and mental coercion. “The only grounds—possible grounds would be the
       handcuffing behind the back.” The court acknowledged that defendant had said
       they were tight, but concluded they had no coercive effect on defendant. The court
       concluded: “But in reading the transcript and looking at the video, on the first page
       of the transcript and the video, when they brought him into the station into the
       interview room, what the defendant said is—in this Court’s opinion is extremely
       important. He said—he asked to take the cuffs off, please, the cuffs. All right. Turn
       around. The defendant said, I can’t see. I can’t wait to get them off. Hold still. Can
       I get some water? You’re just glad to get them off. And his answer was—and this is
       the defendant upon getting his handcuffs off—it’s all good.” The court noted that
       the detectives had made the trip in about an hour and a half and concluded there was
       no evidence of physical coercion. Further, the court noted both detectives had
       testified credibly that they had read defendant the Miranda warning. The motion to
       suppress was denied, and defendant did not renew any challenge to the admission
       of his confessions until his posttrial motion.

¶ 16       At trial, Dorian Skyles testified pursuant to a plea agreement. Skyles had
       previously faced a first-degree murder charge. In exchange for his testimony, he
       pled guilty to home invasion and conspiracy to commit murder, receiving 17-year
       and 7-year sentences, to run concurrently. Skyles testified that he gave defendant a
       gun to carry out the robbery but that he was not involved in carrying it out. Instead,
       he and Jetun Coburn parked down the street, without the robbery’s direct
       participants being aware. Skyles testified that he heard shots fired, and defendant
       and the others fled from the house shortly after. Skyles also testified that he and
       defendant had discussed that Stanley would need to be killed, as they believed
                                                -6-
       police would be able to track the robbery plot back to Stanley. Skyles denied that
       Jetun Coburn was involved in that conversation. He testified that he had dropped
       Stanley off for defendant to pick up in Coburn’s Impala, and that defendant later
       called him saying he had lost the keys to the Impala. He acknowledged that he had
       initially lied to police and that he was a three-time felon who was selling drugs for
       his occupation at that time.

¶ 17       Cordell Matthews testified he had been invited by defendant to participate in
       the robbery with defendant, Skyles, and Stanley, but Matthews declined. He further
       testified that defendant called him the next day and said Stanley had shot Coleman,
       and that Stanley and defendant had been armed. Matthews denied remembering
       whether defendant had told him that he had fired a gun and was impeached with his
       grand jury testimony from November 23, 2005. Matthews then admitted he had
       told the grand jury that defendant said Stanley had called out that Coleman had a
       gun when Coleman opened the door, and that defendant then shot Coleman twice in
       the leg. Matthews also testified he went to Skyles’s and Coburn’s home in East
       Chicago, Indiana, with defendant, Stanley, and others. He denied remembering
       defendant and Skyles leaving the main room there but was impeached with his
       grand jury testimony in which he stated he heard them in the back room, discussing
       a plan to kill Stanley. Matthews’ grand jury testimony also indicated Skyles had
       given defendant a gun for that purpose. Matthews testified he rode back to
       defendant’s house with defendant in Coburn’s Impala. He testified he did not
       remember defendant doing anything with the license plates but was impeached
       with his grand jury testimony in which he stated defendant put his temporary plates
       on the Impala and drove away.

¶ 18       Matthews testified he could not remember if, later that night, defendant had
       been driving Matthews around in defendant’s own car and stopped on a bridge. He
       was then impeached with his own grand jury testimony, in which he stated
       defendant had stopped the car on the bridge from Indiana, gotten out of the car, and
       thrown a gun wrapped in a black shirt into the river. Asked why he was giving
       different answers now from his grand jury testimony, Matthews asserted he was
       “drunk and intoxicated” when he made those statements. He had been in police
       custody for approximately two days at that point; the State later brought forward an
       assistant State’s Attorney who testified that Matthews did not exhibit any signs of
       intoxication and had given a coherent and detailed statement on a complex case. On
       cross-examination, Matthews also acknowledged he was scared to be in police
       custody and had given many inconsistent versions of events.
                                               -7-
¶ 19       Some of defendant’s statements were brought into evidence through the
       testimony of Detective Ford, who laid the foundation for them. Defendant sought to
       have all of the DVDs introduced if any portion of them were to be introduced. The
       court admitted the conversations offered by the State, noting that defendant could
       bring in background through testimony as needed. Defense counsel cross-examined
       Ford about the discomfort caused by bringing defendant down from Michigan in
       handcuffs, given that he was a teenager weighing about 300 pounds. Defense
       counsel cross-examined Ford about whether defendant had been able to get any
       sleep amid extensive questioning. Defense counsel cross-examined Ford about
       whether detectives had deceived defendant by saying they had DNA evidence
       linking him to the crimes and that there were witnesses. Ford acknowledged they
       had. Defense counsel also cross-examined Ford on whether defendant might have
       been so deferential to the police questioning him that he might not have been telling
       the truth when he admitted guilt. Defendant did not object at that time to the
       admission of the DVDs on the basis that his confessions were involuntary.

¶ 20       Aside from defendant’s own statements, the major points of evidence
       implicating him in Stanley’s death were the testimony of Skyles, the grand jury
       testimony of Matthews, the presence of defendant’s DNA on a hat in the Impala,
       and the Impala’s temporary plates registered to his residence, which Matthews had
       testified to seeing defendant place on the car. The weapon used to kill Stanley was
       never found, but unrebutted evidence at trial indicated the same gun was used to
       shoot both Stanley and Coleman. The State emphasized these points in its closing
       arguments, along with defendant’s flight to Michigan the day after Stanley’s
       murder. The State’s closing argument did not discuss the voluntariness of
       defendant’s statement.

¶ 21       Defendant’s closing argument considered Skyles to be the mastermind of the
       Coleman robbery and Stanley murder, describing how the witnesses in the case
       should be viewed as untruthful. Moving on to defendant’s confession, defense
       counsel brought up that defendant was only a teenager when he made those
       statements, that he had been in discomfort from the handcuffs, and that the court
       should look very carefully at the defendant’s “age, his intelligence, his background,
       his experience, his mental capacity, his education, his physical condition,” along
       with the duration of questioning. Defense counsel also argued detectives deceived
       defendant, that defendant was emotionally fragile from learning his grandfather
       had died recently, and that defendant was afraid of Dorian Skyles. These concerns
       should prompt the court to consider his confessions unreliable, defense counsel
                                               -8-
       argued. “Under those conditions, Judge, I would suggest to you that his confession
       is not proof beyond a reasonable doubt. *** Judge, there are other cases that courts
       recognized where people confess not because of coercion or by the police, but they
       confess voluntarily to facts that simply aren’t true, facts that simply couldn’t be
       true when you learn more physical evidence.” (Emphasis added.) Defense counsel
       repeatedly questioned the reliability of these statements, and repeatedly suggested
       they were voluntary.

          “And we understand that even if they are voluntary, even if there’s been a
          pre-trial hearing and there’s been a ruling, there’s been no constitutional
          violations, they still can be unreliable. And we don’t leave it up to the trier of
          fact to decide if a confession alone is enough. We have a rule that says it is not
          because we recognize that. The Court in Smith 2 said—the United States
          Supreme Court said though a statement may not be quote, involuntarily,
          unquote within the meaning of the exclusionary rule, its reliability may be
          suspect if it is extracted from one who is under the pressure of a police
          investigation, whose words may reflect the strain and confusion attending this
          predicament rather than a clear reflection of his past. *** Judge, I would submit
          to you that that is what we have here, a false confession voluntarily made
          because of the age of Mr. Hughes, because of his condition, because of the
          duration of the questioning, because of his fear of Dorian Skyles and because of
          his emotional state because of the loss of his grandfather, who he clearly loves
          from that portion of the tape.” (Emphasis added.)

       The remainder of defendant’s closing argument focused on why the court should
       not find the other witnesses credible, why the physical evidence was unconvincing,
       and why the court should be concerned about the statements Detective Ford made.
       The State’s rebuttal argument focused on the sufficiency of the evidence even if the
       court did not find defendant’s confession to be reliable.

¶ 22       The court found defendant guilty of both murders. The court recited the various
       pieces of evidence on which it relied, including the testimony of Skyles and grand
       jury testimony of Matthews. In its finding of fact, it specifically found defendant
       had not been coerced, and that his words were “a clear reflection of the past. He was
       not making anything up.” The court also found other indicia of reliability: “in
       regards to his age, intelligence, his background and experience, his education, the
       duration of the conversations and any abuse, there was no abuse. As the State has
          2
           Smith v. United States, 348 U.S. 147 (1954).
                                                    -9-
       mentioned the Defendant was 19 years old at the time, he was intelligent, he was
       able to explain in regards to the event that occurred on those two nights exactly
       what happened, how things progressed from one stage to the other.” The trial
       court’s ruling contained no discussion of voluntariness.

¶ 23       Defendant filed a motion for a new trial. The motion contained a number of
       general claims, asserting the State failed to prove him guilty beyond a reasonable
       doubt, the finding was against the weight of evidence, the defendant was denied
       due process of law and equal protection of the laws, and the defendant did not
       receive a fair trial. It included approximately twenty more detailed claims, e.g.,
       “The Court erred in allowing Dorian Skyles to testify, over objection, that Joshua
       Stanley said he knew a guy who won $1.2 million on lottery and he wanted to rob
       him, and that he learned this information from the guy’s nephew, Angelo” and “The
       Court erred in sustaining an objection to questioning of Detective Ford as to
       whether Cavinaugh Hughes expressed his relief to the detective when the detective
       removed his handcuffs.” The motion also stated that “[t]he Court erred in denying
       defendant’s Motion to Suppress statement,” with no further discussion on
       voluntariness or the reason behind that claim.

¶ 24       At the hearing on the motion, defense counsel acknowledged the court had
       presided over the case recently and opted not to “go into great detail.” Defense
       counsel asked the court to grant the motion for “each and every allegation in the
       motion,” but particularly for the credibility problems of the State’s witnesses.

          “Additional evidence in this case, Judge, was the statements Mr. Hughes made
          to the detective in the police station here in Chicago, and I’d ask your Honor to
          reconsider your ruling based on the fact that Mr. Hughes appears on the tapes
          that your Honor saw to be attempting to please the detective, and cooperate
          with him, and give him the answers that he wants. *** There were
          misstatements by the detective to induce him to give the statement, and based
          on the caliber of the civilian witnesses, all of whom had reasons to fear that they
          would be charged themselves, including Jetun Coleman [sic] who actually
          asserted a Fifth Amendment privilege so she would not have to testify because
          of her fear of being involved in this, and based on the fact that Mr. Hughes was
          a very young person, just a teenager, and being pressured and held all night
          during the time he was giving the statements, we would ask you to
          consider—reconsider your findings of guilty as to the two first degree murder


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          charges. In addition, Judge, we would ask in the alternative that you grant him a
          new trial based on the trial error.”

       No additional indication was given on the record as to which trial error was
       referenced, but Coburn’s fifth amendment privilege was among the written claims
       in the motion for a new trial. The State’s argument focused on the strength of
       evidence presented and argued the court had been correct to recognize Coburn’s
       privilege. The trial court denied the motion for a new trial.

¶ 25       Before the appellate court, defendant argued that his confession to shooting
       Coleman was involuntary and should have been suppressed. Specifically, he argued
       he was 19 years old and had only a ninth-grade education, having gotten Cs and Ds
       in school. He’d had little to no sleep when he made his statement. The State
       provided no evidence about when Hughes had last slept before being arrested in
       Michigan, and he could not have slept on the way down from Michigan due to his
       discomfort. The videos indicated he did not sleep for any significant amount of
       time in the interrogation room at Area Two, and he fell asleep in the polygraph
       examiner’s chair while she was out of the room. Further, he was susceptible to
       suggestion as he was suffering from severe emotional distress due to death of his
       grandfather, to whom he was close. On the tape, defendant began speaking aloud to
       his grandfather while detectives were out of the interrogation room. Defendant was
       additionally the victim of deceptive and coercive police conduct, when Detective
       Ford falsely indicated there were numerous eyewitnesses against defendant, and
       that the shots to Coleman’s legs had been the fatal ones. Likewise, Detective
       Figueroa-Mitchell indicated she would testify about who passed a polygraph, and
       that court needed to know Hughes was sorry. Defendant also argued he was
       susceptible to suggestion due to his substance abuse, using marijuana five to six
       times a day and drinking four to five glasses of cognac twice a week. Finally,
       defendant pointed toward his minimal prior contact with the criminal justice system
       and the relentless nature of the questioning. The error of admitting his confession,
       defendant argued, was not harmless because the evidence was closely balanced,
       given the credibility problems of Skyles and Matthews. Defendant did not present
       any argument about his confession to shooting Stanley or whether the evidence in
       that case was closely balanced.

¶ 26       The State first argued defendant “should be estopped from raising this claim
       based upon his affirmative waiver of this issue where he did not present these
       reasons at his motion to suppress in the trial court.” The State further argued that a
                                               - 11 -
       reviewing court may not consider trial evidence to reverse a trial court’s decision
       denying a motion to suppress, relying on People v. La Bostrie, 14 Ill. 2d 617,
       620-21 (1958), and People v. Brooks, 187 Ill. 2d 91, 128 (1999) (“By not asking the
       court to reconsider its ruling on the motion to suppress when that evidence was
       introduced at trial, defendant has waived his right to argue it on appeal.”). The State
       countered defendant’s specific contentions on voluntariness point for point and
       additionally argued the evidence was not closely balanced.

¶ 27       The appellate court, with one justice dissenting, agreed with defendant. First,
       the appellate court held the admission of defendant’s confession was not forfeited,
       insofar as he raised the issue of voluntariness in a motion in limine and a posttrial
       motion. 2013 IL App (1st) 110237, ¶ 42. While he raised some additional theories
       on appeal, the appellate court found he had raised the issue under sufficiently
       similar theories, citing People v. Hyland, 2012 IL App (1st) 110966, ¶¶ 27-28. The
       appellate court concluded the trial court “had every opportunity to meaningfully
       review and rule on the same essential claim raised on appeal, namely,
       involuntariness.” 2013 IL App (1st) 110237, ¶ 46. The court further found that,
       even if it had been forfeited, the admission of defendant’s confession could be
       reviewed under first-prong plain error, insofar as it was a clear and obvious error
       among otherwise balanced evidence. The appellate court reversed, finding
       defendant’s confession involuntary due to a confluence of issues: his age and
       educational level (id. ¶¶ 56-57), being handcuffed on the ride from Michigan (id.
       ¶ 58), his sleep deprivation and the length of interrogation (id. ¶¶ 59-60), food
       deprivation (id. ¶ 60), his prior substance abuse (id. ¶ 62), and police deception and
       deceptive use of polygraph results in particular (id. ¶¶ 72-78). The appellate
       majority was additionally troubled by the unbriefed and unargued issue of
       defendant’s apparent use of cannabis while in police custody and shortly before his
       polygraph examination, while officers were out of the interrogation room. Id. ¶ 71.
       The appellate court concluded it was not clear that defendant’s grief over his
       grandfather’s death hampered voluntariness of his statements. Id. ¶ 61. The
       appellate court reversed and remanded for a new trial on both the Coleman and
       Stanley murders, with the confessions suppressed.

¶ 28       The dissenting justice concluded these points were forfeited and rebutted point
       for point. The dissenting justice noted defendant filed a “boilerplate motion to
       suppress” urging “every ground imaginable as a basis to suppress.” Id. ¶ 91
       (Mason, J., dissenting). The dissenting justice concluded defendant did not raise the
       “same essential claim” on appeal and must be deemed to have forfeited those
                                               - 12 -
       arguments. Id. ¶ 94. The dissenting justice concluded the majority had, by
       reviewing the interrogation and confessions de novo, wandered into fact finding, “a
       function incompatible with any recognized standard of review.” Id. ¶ 97. The
       dissent took issue with the appellate majority’s raising and deciding the unbriefed
       issue of defendant’s marijuana use in custody, and specifically contested the
       majority’s interpretation of the video. Id. ¶¶ 99-115.

¶ 29      This appeal followed.



¶ 30                                       ANALYSIS

¶ 31       It is “axiomatic” that a conviction based “in whole or in part, on an involuntary
       confession, regardless of its truth or falsity” violates a defendant’s constitutional
       rights. Miranda v. Arizona, 384 U.S. 436, 464 n.33 (1966). “The test of
       voluntariness is whether the individual made his confession freely and voluntarily,
       without compulsion or inducement of any kind, or whether the individual’s will
       was overborne at the time of the confession.” People v. Morgan, 197 Ill. 2d 404,
       437 (2001). Courts weighing the voluntariness of a confession consider the
       “totality of the circumstances,” including the defendant’s “age, intelligence,
       background, experience, education, mental capacity, and physical condition at the
       time of questioning,” along with the duration and legality of the detention. People
       v. Murdock, 2012 IL 112362, ¶ 30. Courts also consider whether there was any
       physical or mental abuse, including if police made threats or promises to a
       defendant. Id. No single factor is dispositive. Id. The State has the burden of
       establishing the voluntariness of the defendant’s confession by a preponderance of
       the evidence. People v. Gilliam, 172 Ill. 2d 484, 501 (1996).

¶ 32        The trial court’s findings of fact in a suppression hearing will be disturbed only
       if they are against the manifest weight of the evidence. Murdock, 2012 IL 112362,
       ¶ 29. We review the trial court’s ultimate finding on voluntariness de novo. Id.

¶ 33       This case additionally concerns arguments of waiver and forfeiture. The State
       contends defendant affirmatively waived those arguments raised on appeal that
       were not raised before the trial court. Citing People v. McAdrian, the State argues
       that parties have the right to address the arguments made by their opponents and to
       rely on intentional waiver when arguments are deliberately not made. People v.
       McAdrian, 52 Ill. 2d 250, 254 (1972). The State additionally analogizes to the

                                               - 13 -
       invited error rule, wherein a party cannot complain of error that it brought about or
       participated in. People v. Villarreal, 198 Ill. 2d 209, 227-28 (2001). The State
       additionally points toward our decision in People v. White, for the proposition that a
       court of review should decline to answer a question for which no adequate record
       has been developed due to a party’s chosen strategy. People v. White, 2011 IL
       109689, ¶ 143.

¶ 34       Defendant argues that the grounds defense counsel argued at the hearing on the
       motion to suppress were additional grounds, such that all of the original written
       grounds were never withdrawn. Defendant further points out that it was the State
       that introduced the entirety of the interrogation videos. Defendant additionally
       argues that a defendant need not argue identical grounds for suppression at trial and
       on appeal, pointing to Hyland, 2012 IL App 110966, ¶ 27.

¶ 35      Beyond the threshold issue of claim preservation, the State additionally argues
       the appellate court exceeded the scope of review in reversing defendant’s
       conviction for the Stanley murder when defendant presented no evidence and in
       considering the issue of defendant’s putative in-custody marijuana consumption
       sua sponte. Finally the State argues admission of defendant’s confession was
       proper.

¶ 36       Defendant asks that if this court should conclude the appellate court exceeded
       the scope of review in reversing the Stanley murder conviction that it nonetheless
       affirm reversal of the Coleman conviction. In the alternative, defendant asks this
       court to remand for a new hearing on voluntariness, if we do not affirm the
       appellate court outright. Defendant additionally renews his appellate grounds for
       finding the confession involuntary.

¶ 37       We believe the State has the better view on the threshold question of claim
       preservation. The question is closely related to the doctrines of forfeiture and
       waiver. We should acknowledge that these two terms have been used
       interchangeably at times, particularly in the criminal context, despite representing
       distinct doctrines. “As this court has noted, there is a difference between waiver and
       forfeiture. While waiver is the voluntary relinquishment of a known right,
       forfeiture is the failure to timely comply with procedural requirements. [Citations.]
       These characterizations apply equally to criminal and civil matters. Thus, while
       Sullivan spoke in terms of waiver, a party’s failure to raise an issue in its petition
       for leave to appeal may equally be deemed a forfeiture of that issue.” Buenz v.

                                               - 14 -
       Frontline Transportation Co., 227 Ill. 2d 302, 320 n.2 (2008). Whether we were to
       consider this question under waiver or forfeiture, a drastic change in arguments can
       prompt the same problems on appeal.

¶ 38        In People v. Caballero, this court noted the lack of judicial economy in raising
       forfeited issues. “Failure to raise issues in the trial court denies that court the
       opportunity to grant a new trial, if warranted. This casts a needless burden of
       preparing and processing appeals upon appellate counsel for the defense, the
       prosecution, and upon the court of review.” People v. Caballero, 102 Ill. 2d 23, 31
       (1984). The Caballero court noted the posttrial motion needed to limit
       consideration to errors considered significant, lest the appeal become open-ended.
       “Appellate counsel may comb the record for every semblance of error and raise
       issues on appeal whether or not trial counsel considered them of any importance. In
       this case, for instance, 18 issues have been raised on appeal, some of which were
       obviously considered insignificant by trial counsel.” Id. at 32. This court has also
       previously noted how new factual theories on appeal deprive the formerly
       prevailing party of the opportunity to present evidence on that point. McAdrian, 52
       Ill. 2d at 254 (“The failure to urge a particular theory before the trial court will often
       cause the opposing party to refrain from presenting available pertinent rebuttal
       evidence on such theory, which evidence could have a positive bearing on the
       disposition of the case in both the trial and reviewing courts.”).

¶ 39       This court has more recently recognized that a defendant’s affirmative waiver
       of the right to challenge the admission of lineup evidence could skew the record on
       appeal.

               “However, the circumstances surrounding the conduct of the lineup, and
           those leading up to it, are less clearly developed. Because defense counsel
           never moved to suppress the lineup identifications on grounds defendant now
           asserts, there was no suppression hearing; hence the State may not have
           adduced all available evidence bearing upon defendant’s current constitutional
           contentions. Thus, we do not have a record equitably compiled for the purpose
           of addressing the attachment issue defendant actually raised in his petition for
           leave to appeal and in his opening brief, nor for the issue we might have to
           address in the event we were to find the right to counsel had attached at the time
           of the lineup. Neither side presented arguments applicable thereto. In sum, we
           are not confident that all of the evidence that could have been brought to bear on
           these issues was in fact adduced.” White, 2011 IL 109689, ¶ 143.
                                                 - 15 -
       The White court declined to hear that issue, in part because of the lack of a “record
       equitably compiled for the purpose.” Id.

¶ 40       We find that all of these concerns motivating the doctrines of forfeiture and
       waiver apply with equal vigor here. Despite defendant’s arguments that he is
       making the same claims, his reasons for suppression in the trial and appellate
       courts, while not factually hostile to one another, are almost wholly distinct from
       one another. At the suppression hearing, defense counsel acknowledged the very
       broadly worded motion, then stated “I just want to give notice to counsel those are
       the grounds we will be proceeding on.” Defense counsel proceeded to present
       argument about defendant’s handcuffs being too tight on the ride down from
       Michigan and whether the court might infer that detectives interviewed him
       without having given defendant the Miranda warning. Contrary to defendant’s
       current argument that these were additional grounds for suppression, they fit
       entirely within the motion’s claims of interrogation without the benefit of Miranda
       warnings and physical and psychological coercion being directed at defendant.

¶ 41       Further, defense counsel presented no evidence and produced no argument as to
       sleep deprivation, food deprivation, the defendant’s education, his age, his grief at
       the loss of his grandfather, his lack of exposure to the criminal justice system, or his
       abuse of drugs and alcohol. There was minimal cross-examination about police
       deception, but little substantial argument. All of this information was available to
       defendant at the time of the suppression hearing, either through his own personal
       knowledge or his review of the interrogation video. Notably, defense counsel relied
       on the video interrogation in the suppression hearing solely for an event that
       occurred within minutes of its start. The State had the responsibility to show, by a
       preponderance of the evidence, that defendant’s confession was voluntary.
       Defendant thereafter did not utilize the video in the hearing on the motion to
       suppress, and it must be presumed this was defendant’s tactical choice.

¶ 42       When the State later sought to introduce video of defendant’s confession in its
       case in chief, defendant did not renew any objection to it on the basis it was
       involuntary. Instead, counsel’s objection focused on incompleteness, as the State
       introduced only individual conversations and not the entire course of interrogation.
       At closing argument, defense counsel pointed to a variety of factors about the
       defendant and the interrogation that should make the confession suspect, but only
       as to the reliability of that confession. Even where a confession has been
       determined to be voluntary, a defendant might still attack it as unreliable. See, e.g.,
                                                - 16 -
       People v. Melock, 149 Ill. 2d 423, 465 (1992) (holding that polygraph evidence
       should have been admitted for the purpose of determining the credibility and
       reliability of the confession where it had been ruled voluntary). Counsel conceded
       the confession was voluntary, repeatedly suggesting it was a “false confession
       voluntarily made.”

¶ 43        Defendant never renewed the call for suppression of the confession until the
       posttrial motion. The motion for a new trial did assert that “[t]he Court erred in
       denying defendant’s Motion to Suppress statement,” but the written motion
       provided no further detail or argument on that point. The oral argument on the
       posttrial motion was, likewise, not sufficient to give the trial court any indication
       the intended focus was voluntariness. The oral argument stated a variety of the
       factors counsel had previously argued as to the unreliability of defendant’s
       confession and asked the court to “reconsider your findings of guilty as to the two
       first degree murder charges.” Nothing in the oral argument on the motion
       distinguished this as a voluntariness argument, rather than a renewal of counsel’s
       closing argument as to reliability. The oral argument on the motion concluded by
       asking the court to “grant him a new trial based on the trial error.” Nothing in the
       oral argument indicated whether “the trial error” was a particular one of the twenty
       specific trial errors claimed, one of the generic claims of error, or that “[t]he Court
       erred in denying defendant’s Motion to Suppress statement.”

¶ 44       Throughout the suppression hearing, the admission of the confession at trial,
       the closing argument, and the posttrial motion argument, nothing in the record
       indicates the trial court was given the opportunity to consider the bulk of these
       arguments that defendant’s confession was involuntary. Likewise, the State was
       never given the opportunity to present evidence or argument that defendant’s
       confession was voluntary even as against these challenges. To the extent defense
       counsel germinated the seeds of these arguments, they were against the
       confession’s reliability. The State was never provided notice these arguments
       would attack the admissibility of the confession, such that the State never had an
       opportunity to rebut them.

¶ 45       Defendant has argued that he need not state identical grounds for contesting the
       issue of voluntariness, citing Hyland, 2012 IL App (1st) 110966, ¶ 27. Hyland
       relied on our holding in People v. Mohr that a defendant’s posttrial argument that
       the State had inadequately supported a jury instruction on provocation and initial
       objection that the State did not back up its claim of provocation with evidence were
                                               - 17 -
       “close enough” to preserve the issue for review. People v. Mohr, 228 Ill. 2d 53,
       64-65 (2008). In Hyland, the appellate court concluded a defendant’s motion to
       suppress based on lack of probable cause to arrest him was sufficiently similar to
       his posttrial motion about the investigative alert lacking probable cause. Hyland,
       2012 IL App (1st) 110966, ¶¶ 26-27. We need not pass on whether Hyland was an
       appropriate application of Mohr, because defendant’s contentions regarding
       voluntariness at trial and on appeal were almost entirely distinct. We conclude
       defendant did not adequately preserve these claims.

¶ 46        Because defendant failed to produce an adequate record for the appellate court
       to review voluntariness under these new theories, the appellate court ought not to
       have decided these factual issues anew. The dissenting justice below quite aptly
       pointed out the difficulty of discerning the appellate majority’s standard of review;
       this was because the appellate majority was deciding new issues of fact for the first
       time on appeal. Hughes, 2013 IL App (1st) 110237, ¶ 117 (Mason, J., dissenting)
       (concluding “the majority engages in a detailed factual analysis of the contents of
       the videotape as if an evidentiary hearing addressing these issues had been
       conducted in the trial court, which, of course, it was not. Therefore, it is unclear
       under what standard the majority is reaching the conclusions it finds warrant
       reversal.” (Emphasis in original.)). By declining or failing to raise these claims
       below, defendant deprived the State of the opportunity to challenge them with
       evidence of its own, he deprived the trial court of the opportunity to decide the issue
       on those bases, and he deprived the appellate court of an adequate record to make
       these determinations. To consider such claims preserved would also multiply
       litigation by motivating parties to address at trial all conceivable arguments that
       might later be made and by forcing the trial court to consider not only the
       arguments made by counsel, but all arguments counsel might have made.

¶ 47       Having concluded defendant did not adequately preserve these distinct claims
       for appeal, we find the trial court did not err in its conclusion that keeping
       handcuffs on defendant for the ride from Michigan and the possibility of
       interrogation without Miranda warnings did not render defendant’s confession
       involuntary. The trial court found, as a factual matter, that Detective Ford credibly
       testified he had read defendant the Miranda warning both before and after the ride
       from Michigan. The trial court likewise found defendant had not been physically or
       psychologically coerced by the presence of handcuffs on him. Though the decision
       to take a rental car to pick up an out-of-state murder suspect may be
       questionable—given that officer safety will then require handcuffing the suspect
                                               - 18 -
       for the duration of the ride home—we likewise do not find that it alone was
       sufficient to render defendant’s confession involuntary. We have concluded the
       trial court did not err in declining to suppress defendant’s confession to Elijah
       Coleman’s murder. This conclusion applies a fortiori to the earlier confession to
       shooting Joshua Stanley, which the appellate court suppressed despite defendant
       having presented no argument on it there.

¶ 48       Neither party has argued the appellate court’s correction of defendant’s
       mittimus, and we leave that portion of the appellate decision undisturbed.
       Accordingly, we affirm the correction of the mittimus and reverse the appellate
       court as to the suppression of defendant’s confession. The decision of the circuit
       court is otherwise affirmed.



¶ 49                                      CONCLUSION

¶ 50       While defendant adequately preserved the broad issue of voluntariness of his
       confession, his arguments on appeal are almost entirely distinct from his arguments
       before the trial court. The drastic shift in factual theories deprived the State of the
       opportunity to present evidence on them. A court of review could not be confident
       in the adequacy of this record to address those arguments. The judgment of the
       appellate court is reversed as to suppression and affirmed as to mittimus. The cause
       is remanded to the circuit court for issuance of a corrected mittimus giving
       defendant credit for his custody starting October 26, 2006, until sentencing.



¶ 51      Appellate court judgment affirmed in part and reversed in part.

¶ 52      Circuit court judgment affirmed.

¶ 53      Cause remanded.




                                               - 19 -
¶ 54       JUSTICE BURKE, specially concurring:

¶ 55       I agree with the majority that the judgment of the appellate court must be
       reversed. I disagree, however, with the majority’s analysis, which omits some
       necessary steps. I therefore specially concur.



¶ 56                 The Majority Does Not Address the Jurisdictional Issue
                        Which This Court Ordered the Parties to Brief

¶ 57      Defendant was arrested for the murders of two people, Elijah Coleman and
       Joshua Stanley. After questioning by police officers, defendant admitted shooting
       Stanley. Later, after a polygraph test and further questioning, defendant gave a
       second confession in which he admitted shooting Coleman.

¶ 58       Defendant was charged in the circuit court of Cook County in two separate
       indictments. In case No. 06-CR-26159, defendant was charged with the first-degree
       murder of Coleman, home invasion and attempted armed robbery. In case No.
       06-CR-26160, defendant was charged with the first-degree murder of Stanley. The
       State filed a motion to join the cases for trial, which was granted by the circuit
       court.

¶ 59       Prior to trial, defendant moved to suppress both of his confessions. That motion
       was denied. A bench trial followed. At trial, the state produced evidence which
       tended to show that defendant shot and killed Coleman during a home invasion and
       that, the next day, defendant shot and killed Stanley, who was an accomplice, to
       prevent him from talking about the murder of Coleman.

¶ 60       At the conclusion of the trial, defendant was convicted of all charges. He was
       sentenced to two terms of natural life imprisonment: one term for the murder of
       Coleman and one term for the murder of Stanley.

¶ 61       On appeal, defendant did not challenge the circuit court’s order denying his
       motion to suppress his confession that he shot Stanley (2013 IL App (1st) 110237,
       ¶ 1), and the appellate court did not discuss that confession. 3 However, the
           3
            The majority states that the appellate court ordered the suppression of defendant’s confession
       that he shot Stanley. Supra ¶ 47. This is incorrect. The appellate court never addressed the
       admissibility of defendant’s first confession and never ordered its suppression. In fact, the appellate
       court expressly stated that “[Defendant] killed Stanley.” 2013 IL App (1st) 110237, ¶ 82.

                                                       - 20 -
       appellate court concluded that defendant’s confession that he shot Coleman was
       involuntary (id. ¶¶ 80-81) and, therefore, the circuit court erred in admitting that
       confession into evidence. The appellate court reversed defendant’s conviction for
       the murder of Coleman 4 and remanded for a new trial. We granted the State’s
       petition for leave to appeal.

¶ 62       After initial briefing was completed in this court, and before oral argument, this
       court ordered the parties to provide additional briefing on an issue affecting the
       jurisdiction of the appellate court. The caption at the top of the notice of appeal to
       the appellate court contained the case No. 06-CR-26160, the number for the
       Stanley case. The notice of appeal thereby vested the appellate court with
       jurisdiction over the judgment of conviction rendered against defendant for the
       murder of Stanley. However, the caption to the notice of appeal did not contain the
       number for the Coleman case, No. 06-CR-26159.

¶ 63       In the appellate court, defendant’s appellant counsel sought, and the appellate
       court granted, an order amending the notice of appeal to add the number of the
       Coleman case. However, the request to amend the notice of appeal was filed some
       15 months after the notice was filed, well beyond the time for amending a notice of
       appeal permitted under our rules. See Ill. S. Ct. R. 606(b), (c), (d) (eff. Dec. 11,
       2014); R. 303(b)(5) (eff. Jan. 1, 2015). This court’s order to the parties for
       additional briefing directed them to address whether the notice of appeal was
       sufficient to vest the appellate court with jurisdiction over both cases.

¶ 64       Oddly, the majority says nothing about this issue. This is clearly error. If an
       issue is of such importance to the proceedings that the parties must be ordered to
       submit additional briefing, then surely it is a matter that must be addressed by this
       court. This is particularly true here since the issue is one of jurisdiction and




           4
            The appellate court’s disposition of the Stanley case, No. 06-CR-26160, is unclear. On the one
       hand, the judgment of the appellate court was simply to “reverse and remand for a new trial.” 2013
       IL App (1st) 110237, ¶ 83. Without further elaboration, this would suggest that the appellate court
       intended to reverse both of defendant’s convictions. On the other hand, the appellate court never
       suppressed, or even discussed, defendant’s confession that he shot Stanley and, as noted previously,
       the court stated that “[Defendant] killed Stanley.” Id. ¶ 82. This makes it difficult to conclude that
       the appellate court meant to reverse defendant’s conviction for murdering Stanley but, instead, may
       have intended only to reverse the Coleman conviction. In any event, because this court holds that
       both of defendant’s convictions must be affirmed, it is not necessary to explore this further.

                                                      - 21 -
       determining whether the appellate court had jurisdiction is a necessary first step to
       our reviewing the merits of the appellate court’s decision.

¶ 65      I would address the jurisdictional issue. I would hold that the notice of appeal
       was sufficient to vest the appellate court with jurisdiction over the judgments of
       conviction in both cases.

¶ 66       The purpose of a notice of appeal is to inform the party prevailing in the circuit
       court that the unsuccessful party seeks review of the judgment. People v. Smith,
       228 Ill. 2d 95, 104 (2008). The notice is to be construed liberally. Id. The notice of
       appeal “ ‘should be considered as a whole and will be deemed sufficient to confer
       jurisdiction on an appellate court when it fairly and adequately sets out the
       judgment complained of and the relief sought, thus advising the successful litigant
       of the nature of the appeal.’ [Citation.] ‘Where the deficiency in notice is one of
       form, rather than substance, and the appellee is not prejudiced, the failure to
       comply strictly with the form of notice is not fatal.’ [Citation.]” Id. at 105.

¶ 67        Here, while the caption to the notice of appeal did not contain the number of the
       Coleman case, the body of the notice stated that defendant was appealing
       “OFFENSES: FIRST DEGREE MURDER.” The body of the appeal further
       indicated that defendant received two sentences of life imprisonment (“LIFE
       IMPRISONMENT (2)”) for those first-degree murder convictions. Thus, not only
       were the cases tried jointly at the State’s request, but the body of the notice of
       appeal explicitly provided that defendant was appealing multiple offenses of
       first-degree murder, thereby necessarily encompassing both cases, and the notice
       stated that defendant was appealing the convictions resulting in his two life
       sentences. Subsequent proceedings in the appellate court also made it clear that
       defendant was appealing the Coleman case. Moreover, the State, in its additional
       briefing in this court, has acknowledged that it understood defendant to be
       appealing both cases and that it was not prejudiced in any way by the omission of
       the Coleman case number in the caption of the notice of appeal. Under these
       circumstances, I would find the notice of appeal sufficient. See, e.g., People v.
       Bennett, 144 Ill. App. 3d 184, 185 (1986) (jurisdiction found where pro se notice of
       appeal contained the wrong case number but the body of the notice referred to the
       correct case). Accordingly, I would hold that the appellate court had jurisdiction
       over both cases and, therefore, we may address the merits of the appellate court’s
       decision.


                                               - 22 -
¶ 68                       The Majority Does Not Address Defendant’s
                                     Plain Error Argument

¶ 69       The appellate court held that defendant’s confession that he shot Coleman was
       involuntary based upon defendant’s character, which included his age, education
       and experience with the criminal justice system, defendant’s physical condition, in
       that he was “visibly spent” and “drug-addled” at the time of the confession, and
       police “trickery.” 2013 IL App (1st) 110237, ¶ 80. Before this court, the State
       points out that the only arguments offered by defendant in support of his motion to
       suppress were that, during transport from a Michigan jail to a jail in Chicago, the
       police (1) improperly questioned him without the benefit of an electronic
       recording; (2) failed to read him his Miranda rights; and (3) handcuffed him in an
       uncomfortable manner. The State further notes that at trial, defendant did not renew
       his claim of involuntariness. Instead, defendant argued only that his confession was
       unreliable. Therefore, according to the State, defendant abandoned any claim that
       his confession was involuntary on the grounds relied upon by the appellate court
       and the court erred in ordering that the confession be suppressed.

¶ 70       Defendant, in response, contends that his claims were properly preserved. In the
       alternative, defendant maintains that, even if they were not, the admission of his
       confession that he shot Coleman was plain error. Therefore, defendant contends,
       the appellate court was correct to find his confession involuntary.

¶ 71       The majority holds that defendant “did not adequately preserve” his claims that
       the Coleman confession was involuntary on the grounds relied upon by the
       appellate court. Supra ¶ 45. However, the majority never addresses defendant’s
       alternative argument, i.e., that even if those claims were not adequately preserved,
       there was, nevertheless, plain error. This is a critical omission. The appellate
       court’s judgment can only be reversed if defendant’s plain error argument is
       incorrect. If defendant is, in fact, correct, and there is plain error, then the judgment
       of the appellate court reversing defendant’s conviction for the murder of Coleman
       must be affirmed. It is necessary, therefore, to address defendant’s plain error
       argument.

¶ 72      I would reject defendant’s contention that the admission of his confession to
       shooting Coleman was plain error. Justice Mason, writing in dissent in the appellate
       court, persuasively explained why there was no error in the admission of


                                                - 23 -
       defendant’s confession and, therefore, no plain error. I would adopt the reasoning
       of Justice Mason’s dissent in toto and incorporate it herein.

¶ 73      For the foregoing reasons, I specially concur.

¶ 74      JUSTICES THOMAS and KILBRIDE join in this special concurrence.




                                             - 24 -
