
                                                   THIRD DIVISION
                                                   Filed: 09/18/02





1-00-1311


THE PEOPLE OF THE STATE OF ILLINOIS                      )  Appeal from the
                                                   )  Circuit Court of
      Plaintiff-Appellee,                                )  Cook County
                                                   )
            v.                                     )
                                                   )
ANTOINE OLLIE,                                     )  Honorable
                                                   )  Dennis Dernbach,
      Defendant-Appellant,                               )  Judge Presiding.



      JUSTICE HOFFMAN delivered the opinion of the court[1]:
      Following a jury trial, the defendant, Antoine Ollie, was convicted of first degree murder  and
home invasion.  The trial court sentenced the defendant to 50 years' imprisonment  for  first  degree
murder and a concurrent term of 15 years' imprisonment for home invasion.  The  defendant  filed  the
instant appeal asserting that: 1) the trial court erred in denying his motion  to  quash  his  arrest
and suppress his statement; 2) he was denied his right to a trial before a fair  and  impartial  jury
because the trial court failed to sua sponte dismiss one of  the  jurors  for  cause;  3)  the  State
improperly introduced hearsay testimony implicating him in the commission of the crimes  charged;  4)
the State elicited prejudical and inflammatory testimony about the decedent and his  family  for  the
sole purpose of appealing to the jury's sympathy and to create a  sense  of  outrage;  5)  his  first
degree murder conviction was the product of a double enhancement and constitutes double jeopardy;  6)
his 50-year sentence for first degree murder is excessive; and 7) the mittimus should be  amended  to
reflect the proper credit for time served prior to sentencing.[2]
      The defendant and three co-defendants, Anthony Porter, Martin Johnson,  and  Theodore  Glaspie,
were charged with first degree murder and home invasion in connection with the shooting  of  Kenyatta
Wilkins, which took place on October 15, 1997.  Prior to trial, the defendant filed a  single  motion
seeking to quash his arrest, alleging that it was  made  without  probable  cause,  and  to  suppress
evidence, including his inculpatory statement.  The defendant also filed a  separate  motion  seeking
to suppress his inculpatory statement on the basis that he was  not  advised  of  his  rights  before
making it.
      The trial court first conducted a hearing at which it heard the  defendant's  motion  to  quash
his arrest simultaneously with similar motions filed by Porter  and  Johnson.   The  evidence  as  it
pertained to the defendant is as follows.   The  defendant  called  Chicago  police  officer  Patrick
Keating to testify.  According to Keating, when he began his shift on October 15,  1997,  he  learned
that Chicago police detectives Lenihan and Ryan wished to speak with  a  person  known  as  "Red"  in
connection with a murder investigation they were conducting.  Having previously had  contact  with  a
man named Willie Lewis, also known as "Red", Keating checked police files  to  find  Lewis'  address,
which was listed 7244 South Artesian Avenue.  Around 11 or 11:30 p.m on  October  15,  1997,  Keating
and Chicago police officers Glynn, Clisham, and Jesionowski went to that address.  The  officers  did
not have an arrest warrant for Lewis or a search warrant for the premises.  When  the  officers  rang
the doorbell, Lewis' mother answered the door.  According to Keating,  he  identified  himself  as  a
police officer and stated that he wished to speak to  Lewis  in  connection  with  an  investigation.
Keating testified that Lewis' mother allowed  him  into  the  house  and  told  him  that  Lewis  was
upstairs.  Keating and Glynn then went upstairs.
      Carolyn Farrar, Lewis' mother, offered  a  far  different  version  of  events.   According  to
Farrar, when she answered her door,  she  told  the  officers  that  Lewis  was  not  there.   Farrar
testified that she agreed to speak to the officers but stated that she  wanted  to  get  a  housecoat
before letting them in the house.  When she walked away from the door,  though,  the  officers  "just
stormed into" the house, following her to the back of the house and then going into the basement  and
upstairs.  Farrar testified that, after retrieving her housecoat, she went into the  basement,  where
she found that four police officers had Lewis' three friends,  including  the  defendant,  handcuffed
and kneeling on the floor.  Farrar estimated that there were 15 to 20 police officers at  her  house.
Some of the officers had helmets, shields, and battering rams.
      The State called Officer Jesionowski to testify.   Jesionowski  confirmed  Keating's  testimony
that Farrar allowed the officers into the  house.   He  testified  that  none  of  the  officers  had
helmets, shields, or a battering ram.   According  to  Jesionowski,  while  Keating  and  Glynn  were
upstairs, he heard some  people  moving  around  in  the  basement.   He  and  Officer  Clisham  went
downstairs to investigate.  The officers found the defendant, Porter, and  Johnson  in  the  basement
and asked the men "if they knew what was going on over on Damen."  According to Jesionowski, the  men
immediately stated that Lewis was not involved in the shooting.   Jesionowski  asked  the  three  men
whether they would be willing to  accompany  the  officers  to  the  police  station  to  speak  with
detectives, and the men agreed.  Jesionowski testified that the officers  did  not  put  the  men  in
handcuffs at any time or place them on their knees.  He further testified that, upon discovering  the
three men in the basement, the officers called for another unit to assist them, but there were  never
more than six officers present at the Lewis home.  Jesionowski testified that he  did  pat  down  the
three men to  make  sure  that  they  were  not  armed.  According  Jesionowski,  Keating  and  Glynn
transported Lewis to the police station, while he and Clisham transported the defendant, Porter,  and
Johnson.  When they arrived at the police station, Jesionowski  and  Clisham  placed  the  defendant,
Porter, and Johnson in an interview room together and closed the  door,  turning  the  case  over  to
detectives.  Jesionowski did not know if the door to the room was locked.
      Detective Robert Lenihan testified that he  and  his  partner,  Detective  Bernard  Ryan,  were
assigned to investigate Wilkins' murder.  The detectives  had  received  information  that  a  person
known as Red and his friends had exchanged gunfire with the victim and his friends the day  prior  to
the murder. When he began his shift at 8:30 a.m. on October 16, 1997,  he  learned  that  Lewis,  the
defendant, Porter, and Johnson were at the station waiting  to  be  interviewed.   Lenihan  testified
that the defendant, Porter, and Johnson were not handcuffed, that they were all  in  the  same  room,
and that the room was not locked.  Lenihan introduced himself to the men and stated  that  he  wished
to speak with them but that there were other things he needed to do first.  He asked the  men  to  be
patient.  According to Lenihan, the men asked "how long it would take" and, when he said he would  be
as quick as possible, they did not object.
      Lenihan testified that he and his partner returned to the station around 3  or  3:30  p.m.  and
brought  the  men  food.   Lenihan  then  spoke  to  Porter,  the  defendant,  Lewis,  and   Johnson,
individually, in that order.  It was between 3 and 5 p.m. when he spoke to  the  defendant.   Lenihan
advised the defendant of his Miranda rights before speaking to him.   The defendant  stated  that  he
did not know anything about the murder.  After speaking to the defendant,  Lenihan  returned  him  to
the room with Porter and Johnson.  When  asked  why  he  read  the  defendant  his  rights  prior  to
interviewing him, Lenihan responded that the defendant was involved in the incident the day prior  to
the victim's murder and that he did not know what the defendant was going to say  about  either  that
incident or the murder.  Upon further questioning, though, Lenihan acknowledged that, at the time  he
first interviewed the defendant, he had no information  that  the  defendant  was  involved   in  the
incident the day prior to the murder.
      According to Lenihan, when he spoke to Johnson, Johnson stated that, on October  14,  1997,  he
and his friends were involved in two altercations with  the  victim  and  his  friends.   After  this
conversation with Johnson, Lenihan and Ryan went Johnson's residence,  where  they  left  their  card
with Johnson's father, along with a request that Johnson's mother contact  them.   Lenihan  testified
that the detectives wished to speak with Johnson's mother because they had been  told  that  she  had
information relevant to their investigation.  Upon leaving the Johnson home, the detectives  returned
to the police station.  According to Lenihan,  he  then  confronted  Johnson  with  some  unspecified
information, and Johnson gave an oral statement naming himself, Lewis,  Porter,  the  defendant,  and
two other people as participants in the victim's murder.   Lenihan  testified  that,  before  Johnson
gave the statement, he had checked Johnson's background and discovered that there was an  outstanding
juvenile warrant for Johnson's arrest.  According to the detective, Johnson was "in custody  at  that
time when we found out that he had a juvenile warrant."
      Lenihan testified  that,  based  upon  Johnson's  statement,  the  defendant  and  Porter  were
separated and "put in locked rooms, they were taken into custody."
      The defendant's girlfriend, Jammie Miller, testified in rebuttal.  Miller was upstairs  in  bed
with Lewis when the police arrived.  She testified there were "a lot" of officers in  the  house  and
that the officers were "rambling" through the house, searching it.  When Miller later  went  down  to
the first floor, she saw the officers take the defendant, Porter, and Johnson out  of  the  house  in
handcuffs.  She did not see any officers with helmets, shields, or a battering ram.
      In surrebuttal, Officer Glynn testified that  the  defendant,  Porter,  and  Johnson  were  not
handcuffed, that the officers never searched the house, and that  there  were  never  more  than  six
officers on the scene.
      In ruling on  the  defendant's  motion,  the  trial  court  specifically  found  that  Farrar's
testimony about the officers' conduct was not credible and that it was  "more  reasonable"  that  the
events occurred as stated by the officers.  He found  that  the  defendant  was  not  handcuffed  and
voluntarily accompanied the officers to the police station.  The court  also  found  that  the  facts
that the defendant was placed in a room with Johnson and Porter, rather than  by  himself,  and  that
the officers did not prepare an arrest report supported a finding that the defendant  was  not  under
arrest when he arrived at the police station.  The trial court found that there was no evidence  that
the defendant asked to leave from the time that he arrived at the station to the time that  Detective
Lenihan arrived and spoke briefly to him, asking him to wait and be patient.  The court stated  that:
"At some point their status changed and that is unclear at this point from my reading of it in  terms
of the statements they made. *** I'm dealing only with the initial taking into custody and  going  to
the station up until Lenihan deals with them.  They went voluntarily and remained voluntarily  for  a
period of time."  The trial court denied the motion to quash arrest, finding that the  defendant  was
voluntarily at the station at least until the time that Detective Lenihan spoke to him at  8:30  a.m.
on October 16.  The court, however, made no finding  as  to  when  the  defendant  was  placed  under
arrest.
      On a subsequent date, the trial court conducted a hearing at which it simultaneously heard  the
motions to suppress statements filed by the defendant  and  Porter.   Detective  Ryan  was  the  only
witness to testify at the hearing.  Ryan testified that, around 3 p.m. on October 16,  1997,  he  and
Detective Lenihan interviewed Porter for 10 to 20 minutes.  Thereafter,  the  detectives  interviewed
the defendant.   Lenihan advised the defendant of his rights  pursuant  to  Miranda.   The  defendant
stated that he understood each of the rights and that he wished to speak with the  detectives.   Ryan
testified that the detectives then had a 10 to 20  minute  conversation  with  the  defendant  during
which they asked him general questions.  The defendant did not  implicate  himself  in  the  victim's
murder during that conversation.  At the end of the conversation, the defendant was returned  to  the
room with Porter and Johnson.  Asked if he ever told the defendant that he was free  to  leave,  Ryan
answered that he "never used those express words" but that  the  defendant  was  told  several  times
during the day that he was there to assist Lewis and that he was not under  arrest.   Ryan  testified
that the police usually keep cooperative witnesses together, but do not keep suspects together.
      Ryan testified that he and Lenihan had a second conversation with the defendant around  7  p.m.
on October 16.  Lenihan again advised the defendant of his Miranda rights, and  the  defendant  again
stated that he understood them.  According to Ryan,  this  conversation  lasted  15  to  25  minutes.
After this conversation, Ryan testified, he had no further contact with the defendant  in  connection
with the murder investigation.  Prior to this  second  interview  with  the  defendant,  Johnson  had
already given a statement implicating the defendant in Wilkins' murder.
      According to Ryan, he advises a "fair amount" of the witnesses  that  he  interviews  of  their
Miranda rights because some people who come in as witnesses later turn out to  be  co-offenders.   In
the defendant's case, he was a "close associate" of Lewis, who was a suspect.   Ryan  testified  that
he believed that the room where the defendant, Porter, and Johnson were being kept  was  locked.   He
testified that even witnesses are not allowed to walk around the police station  unaccompanied,  that
the men were told to knock on the door if they  needed  anything,  that  they  were  told  they  were
witnesses and were not under arrest, and that they would have been  allowed  to  leave  if  they  had
asked to do so.
      The parties stipulated that, at 12:50 a.m. on October 18,  the  defendant  gave  a  handwritten
statement regarding the shooting of the victim to Assistant State's  Attorney  Steve  Klaczynski  and
Chicago police detective Nowakowski.
      In ruling on the defendant's motion to suppress his statement, the  trial  court  repeated  its
earlier finding that the defendant was not under arrest when he was transported to the station.   The
court again found the officers' testimony to be credible and noted the officers' testimony  that  the
defendant was free to leave the station and would have been allowed to  do  so  had  he  asked.   The
court stated that "there's a difference between being free to leave  a  police  station  and  [being]
free to roam the police station."  The court further found that, based on the evidence  presented  at
the hearing, it was "obvious" that the defendant was in custody "by 7:00 on the 17th", after  Johnson
made his statement implicating the defendant. The  trial  court  denied  the  defendant's  motion  to
suppress his statement.
      The trials of the defendant and his three co-defendants  were  severed.   The  court  conducted
simultaneous but separate jury trials for the defendant and Porter.  At the  defendant's  trial,  the
State introduced evidence that the victim's body was found in a second  floor  apartment  located  at
2039 West 53rd Street on the morning of October 15, 1997, and that the victim died  as  a  result  of
multiple gunshot wounds.  The only evidence which the State introduced connecting the defendant  with
the victim's murder was  the  defendant's  own  statement.   Assistant  State's  Attorney  Klaczynski
testified that he first interviewed the defendant around 11:45 p.m. on October  17,  1997,  at  which
time the defendant made an oral statement.  At 12:50 a.m. on October  18,  1997,  Klaczynski  took  a
handwritten statement from the defendant, memorializing the earlier oral statement.  He  advised  the
defendant of his Miranda rights prior to each statement.  Klaczynski read the  handwritten  statement
into evidence.  According to the defendant's statement, on the  morning  of  October  15,  1997,  the
defendant and five other men devised a plan to kill "Yatti" (the victim).   The  plan  provided  that
the defendant and two others were to act as "lookouts" while the remaining three men went inside  and
killed the victim.  The defendant stated that the six men went in two cars to 2039 West 53rd  Street.
 The defendant and two other men stayed outside while the remaining three men went  inside.   Shortly
thereafter, the defendant heard several shots and then saw the three men run out of the building  and
get into one of the cars.  All of the men then drove away.  The defendant drove one of the two cars.
      The defendant rested without calling any witnesses.  The  jury  was  instructed  regarding  the
offenses of home invasion, intentional murder, knowing  murder,  and  felony  murder.   It  was  also
instructed regarding the theory of accountability.   Following  deliberation,  the  jury  returned  a
guilty verdict as to the offense of home invasion and a general verdict of guilty as to  the  offense
of first degree murder.  At sentencing, the trial court stated that it was most appropriate to  enter
judgment on the felony murder count and ordered that the  counts  alleging  knowing  and  intentional
murder  would merge with the felony murder count.  The trial court then sentenced  the  defendant  to
concurrent prison terms of 50 years for first degree murder and 15  years  for  home  invasion.   The
defendant has appealed.
      On appeal, the defendant first argues that the trial court  erred  in  denying  his  motion  to
quash his arrest and suppress his inculpatory statement.  Here, the defendant filed a motion  seeking
to quash his arrest, alleging that it was made without probable cause, and to suppress any  evidence,
including his inculpatory statement.  He also filed a separate motion to suppress  his  statement  on
the basis that he was not advised of his rights prior  to  giving  the  statement.   On  appeal,  the
defendant contends only that the trial court erred in  failing  to  suppress  the  statement  as  the
product of an illegal arrest.  While we review determinations of probable cause de novo, we will  not
disturb the trial court's findings of fact unless  they  are  against  the  manifest  weight  of  the
evidence.  Ornelas v. United States, 517 U.S. 690, 698-99, 134 L. Ed. 2d  911,  919-20,  116  S.  Ct.
1657, 1662-63 (1996)); People v. Sorenson, 196 Ill. 2d 425, 431, 752 N.E.2d 1078  (2001);  People  v.
Centeno, 1-99-1378 (Ill. App. August 14, 2002), slip op. at 18-19.  We will also give due  weight  to
the inferences the trial court has drawn from those facts. Ornelas, 517  U.S.  at  698-99;  Sorenson,
196 Ill. 2d at 431.
      Probable cause exists where, at the time of the arrest, the facts and  circumstances  known  to
the police officer would lead a reasonable person to believe  that  the  defendant  had  committed  a
crime.  People v. Williams, 275 Ill. App. 3d 249, 253, 655 N.E.2d 1071 (1995). An arrest  effectuated
without either a warrant or probable cause violates an individual's constitutional right to  be  free
from unlawful searches and seizures.  People v. Melock, 149 Ill. 2d 423, 436, 599 N.E.2d 941  (1992);
U.S. Const., amend. IV; Ill. Const. 1970, art. I, §6.
      The defendant contends that he was under arrest when he was  taken  from  the  Lewis  home  and
that, even if he was not under arrest at that moment, he was, in any event, under arrest long  before
he made an incriminating statement.  The State acknowledges that the officers did not  have  probable
cause to arrest the defendant at the time he was transported to the station.   It  asserts,  however,
that the trial court properly found that the defendant was not arrested until 7 p.m. on  October  16,
when he was formally placed under arrest.  At that time, the State contends, the  officers  did  have
probable cause to arrest the defendant as Johnson had given a statement naming him as  a  participant
in the victim's murder.
      A person has been arrested when his freedom of movement is restrained by physical  force  or  a
show of authority.  Melock, 149 Ill. 2d at 436.  In determining whether an arrest has  occurred,  the
key inquiry is whether, under the circumstances, a reasonable innocent person  would  have  concluded
that he was not free to leave.  People v. Reynolds, 94 Ill. 2d 160, 164, 445 N.E.2d 766  (1983).   In
determining whether an arrest has occurred, a court  may  consider  the  number  of  police  officers
present, whether the officers displayed a weapon or touched the person,  whether  the  officers  used
language suggesting that the person was compelled to obey, and whether  any  of  the  practices  that
normally accompany an arrest,  such  as  searching,  handcuffing,  and  fingerprinting,  took  place.
People v. Bolden, 197 Ill. 2d 166, 180, 756 N.E.2d 812 (2001).
      We first address the defendant's assertion that he was under arrest at the  time  the  officers
transported him  to  the  station.   The  testimony  of  Officers  Keating,  Glynn,  and  Jesionowski
established that: four officers went to the address on Artesian  Avenue  looking  for  Lewis  because
detectives wished to speak with him; while the officers were there, they encountered  the  defendant;
the defendant stated that Lewis was not involved in the shooting, and, upon being asked to  accompany
the officers to the station to discuss the matter, the defendant agreed; and the  defendant  was  not
handcuffed.  The trial court specifically found the officers' accounts of the events to  be  credible
and rejected Farrar's testimony that the police officers entered her home with helmets, shields,  and
battering rams.  The defendant does not challenge the trial  court's  credibility  determinations  or
factual findings.  He contends, however, that, even based upon the  facts  as  testified  to  by  the
officers, he was under  arrest  when  he  was  transported  to  the  station.   In  support  of  this
contention, the defendant points to the facts that additional  officers  were  called  to  the  scene
after the officers discovered him, Porter, and Johnson in the basement, that he  was  not  given  the
option of going to the police  station  on  his  own,  and  that  officers  patted  him  down  before
transporting him.  It is true that the number of officers present is a factor to be  considered  when
determining whether an arrest occurred.  See People v. Brown, 136 Ill. 2d  116,  124-25,  554  N.E.2d
216 (1990).  However, Officers Glynn and Jesionowski testified that there were never  more  than  six
officers on the scene, and there is no evidence that the additional officers called to the scene  had
any interaction whatsoever with the defendant.  Further, the officers'  testimony,  which  the  trial
court found to be credible, established that no force  was  used  and  that  the  defendant  was  not
handcuffed.  We also cannot say that the fact that the officers patted down the defendant  before  he
got into their car or that they  did  not  ask  the  defendant  if  he  wished  to  provide  his  own
transportation to the station compel  a  finding  that  the  defendant  was  under  arrest.   Rather,
considering the totality of the circumstances, and  giving  the  requisite  deference  to  the  trial
court's credibility and factual findings, we conclude that the defendant was not  under  arrest  when
he first accompanied the officers to the station.
      Our inquiry does not end there, though.  Voluntary presence at the police station in  order  to
assist with an investigation may progress into unlawful detention with the passage of  time.   People
v. Booker, 209 Ill. App. 3d 384, 393,  568  N.E.2d  211  (1991).   Illinois  courts  have  repeatedly
rejected the proposition that a person who voluntarily accompanies the  police  to  the  station  for
questioning "implicitly consents to remain in the police station while  the  police  investigate  the
crime to obtain probable cause for the interviewee's arrest."  People v. Barlow,  273  Ill.  App.  3d
943, 950, 654 N.E.2d 223 (1995).  See  People  v.  Wallace,  299  Ill.  App.  3d  9,  701  N.E.2d  87
(1998)(defendant remained in  an  interview  room  with  door  closed  until  he  made  incriminating
statement; defendant was not free to move about station, not told he could leave, and was advised  of
Miranda rights several times); Barlow, 273 Ill. App. 3d 943 (defendant left in locked interview  room
for six hours while police conducted investigation); People v. Booker, 209  Ill.  App.  3d  384,  568
N.E.2d 211 (1991)(defendant left in processing room with access to telephone while  police  conducted
interview, at various intervals was questioned and  asked  to  submit  to  physical  examination  and
polygraph test);  People v. Sturdivant, 99  Ill.  App.  3d  370,  425  N.E.2d  1046  (1981)(rejecting
State's argument that the defendant freely chose to remain in police station for 9  hours).   In  the
instant case, approximately 19 hours elapsed between the defendant's arrival at  the  police  station
and his formal arrest.  We must consider the events which occurred  during  that  19-hour  period  in
order to determine whether the defendant's presence at the station remained voluntary.
      Upon arriving at the police station shortly after midnight on October 16, 1997,  the  defendant
was placed in an interview room together with Porter and Johnson.   There was  conflicting  testimony
as to whether the interview room was locked.  Jesionowski did not know if the door to  the  room  was
locked and Lenihan believed that it was not.  Ryan, on the other hand, believed the room was  locked.
 The trial court made no finding of fact on the issue.  At any rate, it is clear  that  the  door  to
the room was closed and that the men could not leave the room unaccompanied.  The defendant  contends
that the fact that he was placed in an interview room  with  the  door  closed  and  possibly  locked
rather than in a public waiting area indicates that he was under arrest.   See  People  v.  Reynolds,
257 Ill. App. 3d 792, 801, 629 N.E.2d 559 (1994); People v. Young, 206 Ill. App.  3d  789,  799,  564
N.E.2d 1254 (1990).  The State disagrees.  It points to Ryan's testimony that  the  reason  the  door
was locked was that no one, including a witness,  is  allowed  to  walk  around  the  police  station
unaccompanied.  The detective testified that the men were told to knock on the door  if  they  needed
anything.  Ryan also testified that, while the defendant was  never  expressly  told  that  he  could
leave, he was told that he was not under arrest.  The State further asserts that the  fact  that  the
defendant was placed in the interview room together with Johnson and  Porter  indicates  he  was  not
under arrest.  We agree with the trial court that this fact suggests the defendant was being  treated
as a witness rather than a suspect.  See People v. Walls, 220 Ill. App. 3d 564, 578, 581  N.E.2d  264
(1991)(court found it significant that defendant was accompanied to station for  questioning  by  his
friend and that defendant was aware there were others present at station for  questioning  as  well).
In our opinion, a reasonable innocent person, having voluntarily  accompanied  the  officers  to  the
station and having been placed in a room with two friends and informed that he was not  under  arrest
and should knock on the door if he needed anything, would have believed he was free to  go,  even  if
the door was locked.
      At the time the defendant and the others were brought to the station for  questioning,  Lenihan
and Ryan, the detectives in charge of the investigation, were not on duty.  Accordingly, the men  sat
in the interview room without being interviewed from shortly after midnight on October  16  to  about
8:30 a.m. that same day, when the detectives arrived.  The defendant  was  not  interviewed  at  that
point.  Rather, Lenihan briefly spoke to the defendant, introducing  himself,  stating  that  he  had
other matters to attend to in connection with the investigation,  and  asking  the  defendant  to  be
patient.  The defendant asked how long Lenihan's other matters would take, and the  detective  stated
that he did not know but would try to return as quickly  as  possible.   According  to  Lenihan,  the
defendant did not object.  We note, however, that the defendant was not given the option  of  leaving
the station and returning at a later time.  See Young, 206 Ill.  App.  3d  at  801-02  (finding  that
State failed to provide adequate explanation of why defendant was not given option of going home  and
returning at later time when officer would be available to interview him).   When  Lenihan  and  Ryan
returned to the station around 3 or  3:30  p.m.,  they  finally  began  interviewing  the  men.   The
detectives interviewed Porter first and then the defendant, advising the  defendant  of  his  Miranda
rights.  The detectives testified that they advised the defendant of his rights just "to be safe"  as
they did not know what the defendant would say.  There is no evidence, however,  that  the  defendant
was told he was being advised of his rights merely as a precautionary matter.  While  not  in  itself
dispositive of the question of whether an arrest has occurred, the  giving  of  Miranda  warnings  is
commonly recognized as an indicia of arrest.  Barlow, 273 Ill. App. 3d at 949.  Further, we  find  it
very significant that, after interviewing the defendant, the detectives did not  tell  the  defendant
that he was free to go even though, having questioned  the  defendant,  "the  police  had  ostensibly
accomplished their articulated purpose for bringing defendant to  the  police  station"  (Young,  206
Ill. App. 3d at 800-01).  Rather, the detectives returned the defendant to the  interview  room  with
Porter and Johnson.  We find that, at that time, a reasonable innocent person,  having  been  advised
of his Miranda rights, having stated that he knew nothing about the crime  in  question,  and  having
been returned to the interview room rather than released, would not have believed that  he  was  free
to go.  See Centeno, No.  1-99-1378,  slip  op.  at  21-22;  Young,  206  Ill.  App.  3d  at  800-01.
Accordingly, we conclude that the defendant was under arrest no later than the time at which  he  was
placed back into the interview room following his first interview, which, according to the  testimony
of Detectives Lenihan and Ryan, was at approximately 4 p.m. on October 16.  The State does  not  even
assert that the officers had probable cause to arrest the  defendant  anytime  prior  to  his  formal
arrest at 7 p.m. on October 16.
      Our finding that the defendant was subject to an illegal arrest does not, however,  answer  the
question of whether the handwritten statement which Klaczynski took from the defendant at 12:50  a.m.
on October 18 was admissible at his trial.  Wallace, 299 Ill.  App. 3d at 18.  A confession  obtained
following an illegal arrest may, nonetheless, be admissible if the  confession  was  sufficiently  an
act of the defendant's free will such that it is purged of the primary taint of the  illegal  arrest.
People v. White, 117 Ill. 2d 194, 222, 512 N.E.2d 677 (1987).  In Brown v. Illinois,  422  U.S.  590,
603-04, 45 L. Ed. 2d 416, 427, 95 S. Ct. 2254, 2261-62 (1975), the United States  Supreme  Court  set
forth four factors to be considered  in  determining  whether  a  confession  obtained  following  an
illegal arrest was a product of that arrest or was purged of the initial taint.  These  factors  are:
1) the temporal proximity between the arrest and the  confession;  2)  the  presence  of  intervening
circumstances; 3) the purpose and  flagrancy  of  the  police  misconduct;  and  4)  whether  Miranda
warnings were given.  Brown, 422 U.S. at 603-04, 45 L. Ed. 2d at 427, 95  S.  Ct.  at  2261-62.   The
State bears the burden of demonstrating, by clear and convincing evidence, sufficient attenuation  of
evidence obtained through an illegal arrest.  People v. Foskey, 136 Ill. 2d 66, 86,  554  N.E.2d  192
(1990); People v. Wright, 294 Ill. App. 3d 606, 612, 691 N.E.2d 94 (1998).
      In the instant case, the trial court, having concluded that the defendant was not  the  subject
of an illegal arrest, never considered the question of  attenuation.   The  defendant  contends  that
there are not sufficient attenuating circumstances to purge his inculpatory statement  of  the  taint
of his illegal arrest  and  that,  accordingly,  we  should  reverse  his  conviction,  suppress  his
statement, and remand for a new trial.  The State asserts that, if we find  that  the  defendant  was
illegally arrested, we should remand the matter to the trial court in order  for  it  to  conduct  an
attenuation hearing.  In order to determine the  appropriate  course  of  action,  we  must  consider
whether the record before is sufficiently complete to  allow  an  independent  determination  on  the
issue of attenuation.
      The first factor at issue is the temporal proximity of the defendant's illegal  arrest  to  his
confession.  As we have concluded, the defendant was under arrest no later than  4  p.m.  on  October
16, 1997, when the detectives, upon completing their first interview  with  the  defendant,  did  not
tell the defendant he was free to go but returned him to the interview room with Porter and  Johnson.
 Klaczynski took a handwritten statement from the defendant  at  12:50  a.m.  on  October  18,  1997.
Therefore, the defendant was in  custody  for  approximately  33  hours  at  the  time  he  gave  the
inculpatory statement at issue.  Courts have noted that  a  significant  lapse  of  time  between  an
illegal arrest and the making of a statement is an ambiguous factor which "may serve to  amplify  the
coercion latent in a custodial setting, particularly when there are other indicia  of  coercion"  or,
on the contrary, "may help to purge the taint of  a  prior  illegality  by  allowing  an  accused  to
reflect on his situation, particularly when attended by other factors ameliorating coercion, such  as
Miranda warnings."  People v. Lekas, 155 Ill. App. 3d 391, 414,  508  N.E.2d  221  (1987);  see  also
White, 117 Ill. 2d at 223-24.  There was no evidence introduced as to what occurred  between  7  p.m.
on October 16, when the defendant was formally placed under arrest, and 11:45  p.m.  on  October  17,
when Klaczynski first interviewed the defendant.  Accordingly, we are  unable  to  determine  whether
the 33-hour lapse of time here  weighs in favor of or against a finding of attenuation.
      Another factor to consider in determining whether a statement given subsequently to an  illegal
arrest is admissible is whether the defendant was advised of his rights prior  to  being  questioned.
Although it is not enough, standing alone, to purge the taint of a defendant's  illegal  arrest,  the
giving of Miranda warnings clearly weighs in favor of a finding of attenuation.  People v.  Jennings,
296 Ill. App. 3d 761, 764, 695 N.E.2d 1303 (1998).  From the record, we know that the  defendant  was
advised of his Miranda rights when he was interviewed  by  Lenihan,  Ryan,  and  Klaczynski.   Again,
however, the record is silent as to what happened between 7 p.m. on October  16  and  11:45  p.m.  on
October 17.  Accordingly, we are unable to determine whether the defendant  was  interviewed  without
the benefit of Miranda warnings during that time period.
      The flagrancy  of  police  misconduct,  or  lack  thereof,  and  the  presence  or  absence  of
intervening circumstances have emerged  as  the  key  factors  in  determining  whether  a  statement
obtained subsequent to an illegal arrest is sufficiently purged of the taint of  that  arrest  to  be
admissible.  Jennings, 296 Ill. App. 3d at 765.  From the record before us we are able  to  determine
that the officers did not go out in search of the defendant and, in fact, had no  reason  to  believe
the defendant was involved in the victim's murder at the time they asked him  to  accompany  them  to
the station.  Although the defendant was placed in an  interview  room  with  the  door  closed,  and
possibly locked, he was kept with his friends until such time as he had been named as  a  participant
in the victim's murder.  We do not believe  these  circumstances  evidence  flagrant  and  purposeful
police misconduct.  As with the previous two factors, though, without knowing what  occurred  at  the
police station between the hours of 7 p.m. on October 16 and 11:45 p.m. on October  17,  we  are  not
able to state definitively whether  this  factors  weighs  in  favor  of  or  against  a  finding  of
attenuation.
      The final factor to be considered is whether there were  any  intervening  circumstances  which
served to purge the defendant's confession of the  taint  of  his  illegal  arrest.   See  People  v.
Turner, 259 Ill. App. 3d 979, 993, 631 N.E.2d 1236 (1994).  The confrontation  of  a  defendant  with
new legally obtained information is  one  possible  intervening  circumstance  which  may  produce  a
voluntary desire to confess and, thereby, render the statement admissible.  Jennings, 296  Ill.  App.
3d at 766.  At trial, Lenihan testified that,  during  the  7  p.m.  interview  on  October  16,  the
defendant was "confronted with certain facts".  He did not, however, testify  as  to  the  nature  of
these facts or the manner in which the
detectives learned of them.  It is possible that the detectives confronted  the  defendant  with  the
fact that Johnson made a statement naming him as a participant in the murder.  We  cannot  say.   The
defendant contends that, even if he was informed of Johnson's statement,  this  cannot  serve  as  an
intervening circumstance sufficient to attenuate  his  statement  from  the  illegal  arrest  because
Johnson himself was illegally under arrest at the time he made his statement.   In  support  of  this
proposition, the defendant relies on People v. Austin, 293 Ill. App. 3d 784, 688  N.E.2d  740  (1997)
and People v. Beamon, 255 Ill. App. 3d 63, 627 N.E.2d 316 (1993), in each of which  cases  the  court
held that the confrontation of an illegally arrested  defendant  with  a  statement  made  by  a  co-
defendant also under  illegal  arrest  cannot  serve  as  an  intervening  circumstance  constituting
attenuation.  We note that there is some question as to whether the holdings  in  Austin  and  Beamon
conflict with the holding of our supreme court in People v. James, 118 Ill. 2d 214, 226,  514  N.E.2d
998 (1987), that a defendant lacks standing to seek suppression of his confession on the ground  that
it is the product of someone else's illegal arrest.  See Austin, 293 Ill. App. 3d at  791-93  (Quinn,
J., specially concurring); People v. Ornelas, 295 Ill. App. 3d 1037,  1045  n.  1,  693  N.E.2d  1247
(1998).  We need not decide the conflict at this time, however.  Not only is  the  record  before  us
insufficient to allow a determination as to whether the defendant was ever confronted with  Johnson's
statement, it is also insufficient to allow a determination  as  to  whether  Johnson  was  illegally
under arrest at the time he gave that statement.  Further, as we have noted, the record is silent  as
to what took place between the time of the defendant's formal arrest at 7 p.m. on October  16,  1997,
and 11:45 p.m. on October 17, when Klaczynski first interviewed the defendant.  It is clear  that  we
do not have enough information  to  enable  us  determine  whether  intervening  circumstances  exist
sufficient to purge the defendant's statement of the taint of his illegal arrest.
      As the record before this  court  is  not  sufficient  to  allow  us  to  make  an  independent
determination on the matter of attenuation, we find that the  appropriate  course  of  action  is  to
vacate the defendant's convictions and sentences and remand  this  cause  to  the  trial  court  with
directions to conduct a hearing to  determine  whether  the  defendant's  inculpatory  statement  was
sufficiently attenuated from his illegal arrest to render it admissible.  See Wallace, 299 Ill.  App.
3d at 9.
      Since the trial court may find that sufficient attenuating circumstances exist  to  render  the
defendant's inculpatory statement admissible, we will discuss the defendant's  remaining  contentions
of error, none of which were raised in the defendant's motion for a new trial.  As a general rule,  a
defendant's failure to include an issue as the basis for relief in his post-trial motion  results  in
a waiver of the issue for purposes of appeal. See People v. Enoch, 122 Ill. 2d 176, 186,  522  N.E.2d
1124 (1988).  The defendant asserts  that  we  should,  nonetheless,  review  the  issues  under  the
doctrine of plain error or under the theory that his trial counsel  provided  ineffective  assistance
in failing to preserve the issues for our review.  Waiver aside,  we  will  address  the  defendant's
contentions.
      [The following material is nonpublishable under Supreme Court Rule 23].

      [The preceding material is nonpublishable under Supreme Court Rule 23].
      The defendant argues that his first degree murder conviction should be vacated  because  it  is
the product of impermissible double enhancement.    Alternatively,  the  defendant  argues  that  his
convictions for both home invasion and felony murder violated  the  double  jeopardy  clause  of  the
fifth amendment.  As stated above, the defendant in this case was  indicted  for  home  invasion  and
three types of first degree murder; namely, intentional murder, knowing murder,  and  felony  murder,
as provided in subsections (a)(1) through (a)(3) of section 9-1 of the Criminal Code of  1961  (Code)
(720 ILCS 5/9-1(a)(1)-(3) (West 1996)).  The jury was instructed as to each of these offenses and  as
to the law regarding accountability.  The jury rendered a verdict of guilty  for  home  invasion  and
first degree murder without designating the type of first degree  murder  upon  which  it  based  its
finding of guilt.  At sentencing, the trial court  found  that  it  was  most  appropriate  to  enter
judgment on the felony murder count and ordered that the knowing and  intentional  murder  counts  be
merged into the felony murder count.   Each of the defendant's arguments is premised  upon  the  fact
that he was convicted of felony murder, rather than intentional or knowing  murder.   We  agree  with
the State, however, that the trial court erred in  entering  judgment  on  the  felony  murder  count
rather than the intentional murder count.  We will explain.
      It is well-settled that, where an indictment contains several counts arising out  of  a  single
transaction and the jury returns a general verdict, the defendant is guilty as charged in each  count
to which the proof is applicable.  People v. Kidd, 178 Ill.  2d  92,  126,  687  N.E.2d  945  (1997).
Further, where multiple convictions are obtained for offenses arising out of a single  act,  sentence
is imposed on the most serious offense.  People v. Cardona, 158 Ill. 2d  403,  411,  634  N.E.2d  720
(1994).  As between the offenses of intentional, knowing, and felony murder,  intentional  murder  is
deemed to be the most serious.  Cardona, 158 Ill. 2d at 412.
      We find our supreme court's decision in People v. Cardona, 158 Ill.  2d  403,  634  N.E.2d  720
(1994) to be instructive here.  In Cardona, the defendant was charged with intentional, knowing,  and
felony murder and the jury returned a general verdict.  The  trial  court  entered  judgment  on  all
three counts of murder but ordered that the judgments for intentional and knowing murder were  merged
into the judgment for felony murder and imposed sentence  for  felony  murder.   Our  supreme  court,
concluding that the evidence was sufficient to support a verdict  of  guilt  for  intentional  murder
upon the theory of accountability, held that the trial court erred in  imposing  sentence  on  felony
murder.  Cardona, 158 Ill.  2d  at  411-13.   The  court  affirmed  the  defendant's  conviction  for
intentional murder and vacated his convictions for knowing and felony murder.  Cardona, 158  Ill.  2d
at 414.
      We now consider whether  the  evidence  in  the  instant  case  was  sufficient  to  sustain  a
conviction for intentional murder based upon the theory  of  accountability.   A  person  is  legally
accountable for the conduct of another when, before or during the commission of an offense  and  with
the intent to promote or facilitate the commission of said offense, he solicits, aids, or  agrees  or
attempts to aid the other person in the planning or commission of the offense.  720 ILCS 5/5-2  (West
1996).  The evidence adduced at trial  reveals  that,  on  the  morning  of  October  15,  1997,  the
defendant and five other men traveled in two cars to the victim's home to carry  out  a  pre-arranged
plan to kill the victim.  The defendant drove one of  the  cars.   When  the  group  arrived  at  the
victim's address, the defendant sat in his car and acted as a lookout while three  other  men  kicked
in the door.  Thereafter, the defendant heard gunshots and saw the three men run from  the  building.
All six men then fled the scene.  The evidence is sufficient to  establish  that  the  defendant  was
legally responsible for the intentional murder of the victim.
      The defendant cites Griffin v. United States, 502 U.S. 46, 58, 116 L. Ed. 2d 371,  112  S.  Ct.
466 (1991) and Stromberg v. California, 283 U.S. 359, 75 L. Ed. 2d 1117, 51 S. Ct.  532  (1931),  for
the proposition that where, as here, a defendant is charged with multiple counts arising out  of  the
same act and a general verdict is returned, a conviction cannot be upheld  if  a  conviction  on  any
one of the theories of guilt is  legally  impermissible.   Arguing  that  he  could  not  legally  be
convicted of felony murder both because  it  constitutes  an  impermissible  double  enhancement  and
because it violates principles of double jeopardy, the defendant contends that no  murder  conviction
can stand under any theory, including that of intentional murder.  As there is  no  validity  to  the
defendant's assertion that he could not be convicted of felony murder, we disagree.
      "[D]ouble enhancement occurs when a factor previously used to enhance an offense or penalty  is
again used to subject a defendant to a further enhanced offense or penalty."  People  v.  Koppa,  184
Ill. 2d 159, 174, 703 N.E.2d 91 (1998).  The defendant appears  to  argue  that  the  act  of  murder
enhanced the misdemeanor offense of criminal trespass to residence to the  felony  of  home  invasion
and then also provided the basis for the felony murder conviction.  In support of his  argument,  the
defendant cites People v. Johnson, 154 Ill. 2d 356, 609 N.E.2d 294 (1993), for the  proposition  that
"where a home invasion cannot be supported without relying on the  acts  which  caused  the  victim's
death, a conviction of both murder and home invasion  constitutes  an  illegal  double  enhancement."
The defendant misstates the holding in Johnson.  In Johnson, as here, the defendant was convicted  of
both home invasion and felony murder, based on the predicate felony of  home  invasion.   The  court,
noting that the home invasion charge was based on the defendant's conduct of  entering  the  victim's
home and stabbing him, found that home invasion was necessarily a lesser included offense  of  murder
and vacated the home invasion charge.  Johnson, 154 Ill. 2d at 371-72.  We fail to  see  how  Johnson
offers any support for the defendant's contention that his murder conviction should be vacated  as  a
result of double enhancement.  In fact, we find no support at all for the defendant's  contention  in
this regard.
      The defendant  also  contends  that  his  murder  conviction  should  be  vacated  because  his
conviction for both that offense and home invasion violates double jeopardy  principles.   The  fifth
amendment states that no person shall "be subject for the same offence to be twice  put  in  jeopardy
of life or limb." U.S. Const., amend. V.   The  test  for  determining  whether  a  person  has  been
punished more than once for the same offense in violation of the double jeopardy clause is  found  in
Blockburger v. United States, 284 U.S. 299, 304, 76 L. Ed. 306, 309, 52 S.Ct.  180,  182  (1932),  in
which the Court held: "The applicable rule is that, where the same act or transaction  constitutes  a
violation of two distinct statutory provisions, the test to be applied  to  determine  whether  there
are two offenses or only one is whether each provision requires proof of  an  additional  fact  which
the other does not."
      In support of his contention that  his  murder  conviction  violates  the  prohibition  against
double jeopardy, the defendant relies upon People v. Gilyard, 251 Ill. App. 3d 117,  621  N.E.2d  625
(1993).  In Gilyard, as here, the defendant was convicted of  home invasion and felony murder,  based
on the underlying felony of home invasion.  Relying on Johnson,  cited  above,  the  court  concluded
that, under the circumstances, home invasion constituted a lesser included offense of  felony  murder
and vacated the defendant's conviction for home invasion.  Again, we fail to see  how  this  supports
the defendant's assertion that his murder conviction cannot stand.   At  most,  Johnson  and  Gilyard
stand for the proposition that the defendant here cannot be convicted of both felony murder and  home
invasion but offer no support for the proposition that the defendant cannot be  convicted  of  felony
murder.
      We have already determined that the evidence at trial was sufficient to  sustain  a  conviction
for intentional murder under the theory of accountability.  As such, under the principles  set  forth
in Cardona, we find that the trial court erred in  entering  judgment  on  the  felony  murder  count
rather than the intentional murder count.  The defendant's contentions that his first  degree  murder
conviction cannot stand, all of which are based on the  premise  that  he  was  convicted  of  felony
murder rather than intentional murder, lack merit.
      For reasons which will become obvious, before turning to the defendant's  contention  that  his
50-year sentence for first degree murder  is excessive, we will first address the  State's  assertion
that the trial court erred in ordering the defendant's sentences  to  run  concurrently  rather  than
consecutively.  In People v. Arna, 168 Ill. 2d 107, 113, 658 N.E.2d 445  (1995),  our  supreme  court
held that, when consecutive sentences are mandatory, a sentencing order  imposing  concurrent  prison
terms is void and that a reviewing court has the authority to correct the void  sentencing  order  at
any time despite the fact that the State does  not  have  the  right  to  appeal  sentencing  orders.
Accordingly, we will consider whether the trial court was required to  impose  consecutive  sentences
as the State argues.
      At the time the offenses in the instant case were committed, section 5-8-4 of the Unified  Code
of Corrections required that the trial court impose consecutive sentences where "one of the  offenses
for which the defendant was convicted was a Class X or Class 1 felony  and  the  defendant  inflicted
severe bodily injury".  730 ILCS 5/5-8-4(a), (b) (West 1996 and Supp. 1997).  This was so whether  or
not the offenses were committed as part of a single course of  conduct  during  which  there  was  no
change in the nature of the criminal objective.  730  ILCS  5/5-8-4(a),  (b)  (West  1996  and  Supp.
1997).  Our supreme court has mandated that, in order to render the mandatory consecutive  sentencing
provision at issue applicable,  the  severe  bodily  injury  must  have  been  inflicted  during  the
commission of the triggering Class X or Class 1 felony.  People v. Whitney, 188 Ill.  2d  91,  98-99,
720 N.E.2d 225 (1999).
      Although murder is not itself a triggering offense under the applicable version of section 5-8-
4(a) of the Code[3] (Whitney, 188 Ill. 2d at 100), the victim's death may nonetheless  serve  as  the
requisite severe bodily injury where it was inflicted during the commission of the  triggering  Class
X or Class 1 felony.  People v. Thompson, No. 1-99-4230 (Ill. App. June 12, 2002); People v.  Sample,
326 Ill. App 3d 914, 761 N.E.2d 1199 (2001); People v. Carney, 327 Ill. App.  3d  998,  1001-02,  765
N.E.2d 1028 (2002).
      The defendant in the instant case was convicted of  first  degree  murder  and  home  invasion,
which is a Class X felony (720 ILCS 5/12-11(c)  (West 1996)).   He  argues  that  the  severe  bodily
injury to the victim arose not out of the home invasion, which would be a  triggering  offense  under
section 5–8-4(a) and (b), but out of the first degree murder, which is not a triggering offense.   We
disagree.
      In People v. Sample, 326 Ill. App 3d 914, 761 N.E.2d 1199 (2001), the defendant  was  convicted
of first degree murder, armed robbery, and home invasion.  In  rejecting  the  defendant's  assertion
that the imposition of consecutive sentences was improper because the severe  bodily  injury  to  the
victim arose out of the first degree murder, a non-triggering offense, rather than the armed  robbery
or home invasion, both triggering offenses, the court stated:
      "Defendant admitted that at the outset and throughout the crime, his  intent  was  to  rob  the
      victim of drugs.  Within the course of a few minutes, defendant, and those for whose actions he
      was held criminally responsible, entered [the victim]'s home by force, threatened  him  with  a
      weapon, shot him, and stole his drugs.  To  parse  out  the  crimes  into  bounded  acts  would
      contradict the reality that these crimes were intertwined both temporally and functionally."
Sample, 326 Ill. App. 3d at 928.  See also People v. Thompson, No.  1-99-4230  (Ill.  App.  June  12,
2002)(holding that consecutive sentences were proper where victim  killed  during  commission  of  an
armed robbery);   Carney, 327 Ill. App. 3d at 1001-02 (same).
      In the instant case, the defendant and five other men went to the  victim's  address  to  carry
out a pre-arranged plan to kill him.  When the men arrived,  the  defendant  and  two  others  stayed
outside to act as lookouts while  the  remaining  three  men  forced  their  way  into  the  victim's
apartment and killed him. The use of force is an element of the type of home invasion with which  the
defendant was charged.  720 ILCS 5/12-11(a)(1)(West 1996).  We conclude that the death of the  victim
in this case occurred during the commission of the home invasion, a Class X felony.
      Citing People v. Miller, 193 Ill. App. 3d 918, 930-32, 552 N.E.2d  988  (1989)  and  People  v.
Phelps, 329 Ill. App. 3d 1, 768 N.E.2d 168 (2002), appeal pending No. 93830, the  defendant  contends
that to impose a consecutive sentence based on the infliction  of  severe  bodily  injury,  which  is
inherent  in  the  offense  of  first  degree  murder,  would  constitute  an  impermissible   double
enhancement.   The courts in Miller and Phelps held that consecutive sentences could not  be  ordered
under section 5-8-4 based on the infliction of severe bodily injury where severe  bodily  injury  was
inherent in the triggering offense.  Miller, 193 Ill. App. 3d at 930-32; Phelps, 329 Ill. App. 3d  at
7-11.  We first note that the divisions of the First  District  of  this  court  are  divided  as  to
whether the holding in Miller remains good law following our supreme court's  decisions  in  Whitney,
People v. Wagener, 196 Ill. 2d 269, 752 N.E.2d 430 (2001), and People v. Carney,  196  Ill.  2d  518,
752 N.E.2d 1137 (2001).  See Sample, 326 Ill.  App.  3d  at  930-31  (1st  District,  2d   Division);
Thompson, 1-99-4230, slip op. (1st District, 3d Division); and Carney, 327 Ill. App. 3d at 1003  (1st
District, 4th Division)(all concluding that double  enhancement  concerns  are  not  implicated)  and
Phelps, 329 Ill. App. 3d at  7-11  (1st  District,  1st  Division)(holding  that  double  enhancement
concerns are implicated under some circumstances).   We need not, however,  settle  this  dispute  as
the instant case is factually distinguishable from both  Miller  and  Phelps.   As  stated,  in  both
Miller and Phelps, severe bodily injury was inherent in the triggering offense.  The court in  Phelps
explicitly stated that no similar prohibition would exist where the triggering offense did  not  have
severe bodily injury as an element, specifically  identifying  home  invasion  as  such  an  offense.
Phelps, 329 Ill. App. 3d at 11; see also Thompson, 1-99-4230, slip op.;  Sample, 326 Ill. App. 3d  at
931; Carney, 327 Ill. App. 3d at 1003-04. The defendant here was convicted of home invasion, a  Class
X felony which does not have severe bodily injury as an element.   See  720  ILCS  5/12-11(a)(i)(West
1996).  Accordingly, we find no merit to the defendant's argument that consecutive  sentences  cannot
be imposed.
      Because the defendant was convicted of a Class X felony during the commission of  which  severe
bodily injury was inflicted, we conclude that the trial  court  erred  in  ordering  the  defendant's
sentences for first degree murder and home invasion to run concurrently rather than consecutively.
      As a final matter, we note that the defendant contends, and the  State  concedes,  that  he  is
entitled to two more days of credit for time served than the trial court awarded him.
      For the foregoing reasons, we vacate  the  defendant's  convictions  and  sentences  for  first
degree murder and home invasion and remand the cause to the circuit court  with  directions  that  it
conduct an attenuation hearing.  If the circuit  court  finds  that  the  defendant's  confession  is
sufficiently attenuated from his illegal arrest to render it admissible, the  court  is  directed  to
enter a judgment of conviction for the offense of first degree murder pursuant to  section  9-1(a)(1)
of the Code (intentional murder) (720 ILCS  5/9-1(a)(1)  (West  1996))  and  a  conviction  for  home
invasion pursuant to section 12-11(a)(1) of  the  Code  (720  ILCS  5/12-11(a)(1)  (West  1996)),  to
conduct a new sentencing hearing to determine the appropriate sentences to be  imposed  consecutively
(see People v. Arna, 263 Ill. App. 3d 578, 589, 635 N.E.2d 815 (1994), affirmed by Arna, 168 Ill.  2d
107), and to award the defendant the appropriate amount of credit for time served.  If, on the  other
hand, the trial court finds that no such attenuation exists to purge the defendant's confession  from
the taint of his illegal arrest, we  direct  it  to  suppress  the  confession  and  conduct  further
proceedings not inconsistent with this opinion.  In doing so, we note that we have  reviewed  all  of
the evidence presented at  trial,  including  the  defendant's  confession,  and  find  that  it  was
sufficient to support the defendant's convictions for first degree murder and home invasion beyond  a
reasonable doubt such that a retrial would not  be  barred  due  to  the  constitutional  prohibition
against double jeopardy.  People v. Olivera, 164 Ill. 2d  382,  393,  647  N.E.2d  926  (1995).   Our
disposition has rendered it unnecessary that we address the defendant's contention that his  sentence
for first degree murder is excessive.
      Judgment vacated and cause remanded with directions.
      HARTMAN and THEIS, JJ., concur.
-----------------------

      [1] Pursuant to a supervisory order issued by the Illinois Supreme Court on May 30, 2002,
(People v. Ollie, 199 Ill. 2d 572, 772 N.E.2d 742 (2002), this court vacated its initial decision in
the instant case, entered on February 7, 2002 (People v. Ollie, No. 1-00-1311 (2002) (unpublished
order under Supreme Court Rule 23)).  The following opinion represents our resolution of all issues
on appeal.

      [2] In order to comply with the appellate court opinion page limitations as mandated by our
supreme court, the discussion of issues two, three, and four has been designated as nonpublishable
material.  A full, unabridged text of this decision is on file with the clerk of this court under
docket number 1-00-1311.

      [3]  Pursuant to an amendment which became effective January 1, 2000, section 5-8-4 of the
Code, now includes first degree murder as a triggering offense under subsections (a) and (b).  730
ILCS 5/5-8-4(a), (b) (West 2000). Citing the current version of section 5-8-4, the State argues that
consecutive sentences are mandated by virtue of the defendant's first degree murder conviction.  To
impose consecutive sentences on the defendant pursuant to this post-offense amendment, though, would
constitute a violation of the constitutional prohibition against ex post facto laws.  People v.
McCleary, 278 Ill. App. 3d 498, 500, 663 N.E.2d 22 (1996).

