                                  Illinois Official Reports

                                          Appellate Court



                             People v. Stolberg, 2014 IL App (2d) 130963



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



District & No.               Second District
                             Docket No. 2-13-0963

Filed                        September 23, 2014

Held                         The appellate court affirmed defendant’s conviction for involuntary
(Note: This syllabus         manslaughter and sentence to eight years’ imprisonment for the death
constitutes no part of the   of his wife, who had suffered a mental breakdown and still had
opinion of the court but     mental-health issues, in an incident during which he laid on top of her
has been prepared by the     in order to restrain her from “poking” him while he was trying to
Reporter of Decisions        sleep, notwithstanding his contention, inter alia, that he was
for the convenience of       prejudiced when his wife’s body was cremated shortly after her death
the reader.)                 and he had made a discovery request for exculpatory evidence, since
                             the evidence was sufficient to establish defendant’s guilt beyond a
                             reasonable doubt and there was no showing that the victim’s body was
                             material exculpatory evidence or that bad faith was involved in
                             cremating the body.




Decision Under               Appeal from the Circuit Court of Lake County, No. 11-CF-1849; the
Review                       Hon. Mark L. Levitt, Judge, presiding.




Judgment                     Affirmed.
     Counsel on              William K. Hedrick, of Wilmette, and Kevin M. Rosner, of
     Appeal                  Northbrook, for appellant.

                             Michael G. Nerheim, State’s Attorney, of Waukegan (Lawrence M.
                             Bauer and Mary Beth Burns, both of State’s Attorneys Appellate
                             Prosecutor’s Office, of counsel), for the People.



     Panel                   JUSTICE HUTCHINSON delivered the judgment of the court, with
                             opinion.
                             Presiding Justice Burke and Justice Birkett concurred in the judgment
                             and opinion.

                                              OPINION

¶1         In 2013, a jury convicted defendant, Ronald Stolberg, of one count of involuntary
       manslaughter of a family or household member pursuant to section 9-3(f) of the Criminal Code
       of 2012 (the Criminal Code) (720 ILCS 5/9-3(f) (West 2012)). The conviction stemmed from
       an incident where the victim, who had a history of mental-health issues, “poked” defendant
       while he was sleeping, and defendant lay on top of the victim and restrained her wrists.
       Following his conviction, the trial court sentenced defendant to a term of eight years’
       imprisonment.
¶2         Defendant now appeals, contending that (1) the State failed to prove him guilty beyond a
       reasonable doubt; (2) he suffered substantial prejudice when the victim’s body was cremated
       after he had made a discovery request for all potentially exculpatory evidence; (3) the trial
       court erred in not suppressing statements that defendant made after he invoked his right to
       counsel; and (4) his sentence was excessive and otherwise improper. We affirm.

¶3                                          I. BACKGROUND
¶4         The record reflects that defendant and the victim were married in 2007 in Las Vegas and
       resided in Vernon Hills. Defendant worked as a repair technician for a company in Buffalo
       Grove. The victim worked for an advertising agency in Chicago before having a mental
       breakdown. She ultimately stopped working. Before their marriage, the victim began taking
       psychotropic medications, and she stopped taking the medications in 2008. On May 6, 2011,
       while at her sister’s house, the victim talked about how “drug dealers are going to come and
       rob us,” among other things, and began slapping herself. The next morning, the victim went to
       see her therapist. The victim was admitted to Alexian Brothers and was hospitalized for one
       night. After being discharged, the victim stayed with defendant’s mother for approximately 12
       days before returning home. In early June 2011, a neighbor observed the victim standing under
       a tree for approximately five to seven hours on a “[v]ery, very warm and humid” day.
¶5         On June 7, 2011, defendant was asleep in the master bedroom while the victim slept on the
       couch in the living room. The victim entered the master bedroom and “poked” defendant,
       which awakened him. The “poking” occurred at least four separate times, with defendant


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       having to walk the victim out of the room on a few instances. Defendant would hold the
       victim’s wrist to calm her down. The last time that the victim “poked” defendant, he held her
       by her wrists and walked her back to the living room. Defendant brought the victim to the floor
       and lay on top of her while she was lying facedown. Defendant remained on top of the victim
       until she stopped struggling. The victim was still breathing. Defendant returned to the master
       bedroom and went to sleep.
¶6         The next morning, defendant left for work at approximately 7 a.m. As he left, he noticed
       that the victim was still lying down. Defendant nudged the victim to see if she would wake up,
       and when she did not, defendant left for work because he thought that she was pretending to be
       asleep. While at work that day, defendant told a coworker that “[the victim] was dead.” When
       the coworker asked why defendant said that, he responded, “[s]he kept waking me up.”
       According to the coworker, he did not take defendant’s comment literally. Defendant
       attempted to call the victim while he was at work, but her phone was turned off. When
       defendant returned home, he found the victim lying in the same spot and in the same position.
       When he rolled her over, he discovered that she was blue and he called 911.
¶7         Once law enforcement officers arrived, defendant related his version of events, including
       that the victim suffered from mental-health issues and was not eating or sleeping. Defendant’s
       mother arrived on the scene and told defendant “[c]ongratulations, ***. You did the right
       thing.” Defendant responded to his mother’s comment by noting that he called “the doctor,”
       “the police,” and “the hospital.” Defendant voluntarily removed his shirt and there was no
       indication of bruising on his chest, back, or arms. Law enforcement officers transported
       defendant to the Vernon Hills police department.
¶8         Thereafter, the police decided to transfer defendant to the Mundelein police department. At
       the station, the police placed him in an interrogation room and advised him of his Miranda
       rights. Defendant said that he “want[ed] a lawyer.” Defendant continued to converse with the
       police “for a while.” The police planned to transfer defendant back to the Vernon Hills police
       department. While in the police vehicle, defendant asked why no one was talking to him and a
       police officer noted that defendant had said that he wanted an attorney. Defendant said that, if
       he could talk to his mother, he would then talk to the police. The police drove defendant back
       to the Mundelein police department.
¶9         At the Mundelein police station, police officers once again placed defendant in an
       interrogation room while other officers went to get his mother. An officer again advised
       defendant of his Miranda rights. Defendant gave his permission for an officer to remain in the
       room until his mother arrived. The officer asked defendant what he would like to talk about
       and defendant responded, “[the victim] was sick.” Defendant described the victim’s
       mental-health issues. In describing the previous night, defendant told the officer that he lay on
       top of the victim for several minutes and that he had his hands around her wrists. When asked
       about the victim’s breathing, defendant responded that it “was slower” and that she “slowly
       gave up.” The interview lasted approximately 3½ hours.
¶ 10       On June 9, 2011, the State charged defendant with first-degree murder. On June 10, 2011,
       defendant appeared and filed a motion for discovery, including for the production of “[a]ny
       evidence which tends to negate [defendant’s] guilt.” Following an autopsy, the victim’s body
       was released for cremation on June 14, 2011, and cremated later that day. The coroner released
       the body after speaking with a law enforcement officer, who verified to the coroner that there


                                                   -3-
       was no need to hold the body any longer. The coroner did not reach out to defendant or any
       other family member before releasing the body for cremation.
¶ 11       On September 30, 2011, defendant filed a motion to dismiss the indictment, arguing that
       substantial prejudice resulted from the State releasing the victim’s body without giving notice.
       Following a hearing, the trial court denied the motion. The trial court concluded that failing to
       preserve evidence in a criminal matter does not constitute a denial of due process unless the
       defendant can establish bad faith. The trial court opined that defendant would have other ways
       of preparing a defense, including reviewing the autopsy report, cross-examining the medical
       examiner, and testing samples taken during the autopsy. The trial court concluded that the
       State allowing the victim’s body to be cremated did not constitute bad faith.
¶ 12       At trial, Dr. Manny Montez, a forensic pathologist, testified. Montez testified that he was
       not board certified in forensic pathology. Montez described injuries on the victim’s body,
       including discolorations of the skin in the chest area and near both hips that were contusions
       caused by force. Further, evidence of bleeding and fat liquification were consistent with the
       victim having been ground into a hard surface while she was alive. Montez testified that the
       victim’s tailbone had a discoloration that was consistent with “some type of force” being
       applied to the skin’s surface. Montez testified that the victim’s injuries could have been caused
       by someone having his knee or the small of his palm on the victim’s back while pressing down.
       Montez opined that the victim died of traumatic asphyxia during physical restraint.
¶ 13       Dr. Skahu Teas, a board-certified physician in anatomic and clinical pathology, testified on
       defendant’s behalf. Teas opined that Montez did not explain how he arrived at his conclusion
       that the victim died of asphyxia during restraint, and she could not find any objective evidence
       to support that conclusion. Teas further noted that Montez did not perform any histology,
       which involves examining tissue from the vital organs. However, she later testified that she
       had examined certain tissue slides prepared from the autopsy. Teas explained that organ tissue
       may look normal grossly but that viewing the tissue under a microscope could reveal subtle
       changes that indicate a physiological death rather than an anatomical death. Teas testified that
       the victim died of natural causes, most likely a cardiac arrhythmia due to a hypertrophic heart
       and myocardial ischemia. Teas testified that, based on her examination of the victim’s medical
       records, the victim had a heart murmur and a history of scarlet fever, which could cause “issues
       with the conduction system in the musculature of the heart.” Teas was not aware that the
       victim’s body had been cremated a few days after Montez performed the autopsy, but she
       testified that it “[made] no difference to [her].”
¶ 14       On May 28, 2013, the jury found defendant not guilty of first-degree murder but guilty of
       involuntary manslaughter. On June 7, 2013, defendant filed a motion for a judgment
       notwithstanding the verdict or for a new trial. Among other assertions, defendant argued that
       the trial court erred in denying his motion to dismiss the indictment. The trial court denied the
       posttrial motion and, following a hearing, sentenced defendant to a term of eight years’
       imprisonment. After the trial court denied defendant’s motion to reconsider his sentence,
       defendant timely appealed.

¶ 15                                         II. ANALYSIS
¶ 16                                 A. Sufficiency of the Evidence
¶ 17       Defendant’s first contention on appeal is that the State failed to prove him guilty beyond a
       reasonable doubt. Defendant asserts that the jury’s verdict “seemed to find that [he] did not

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       intend or desire the result which occurred,” suggesting that his actions amounted to something
       less than criminal recklessness. Defendant also questions the State’s presentation of evidence
       about his disdain for the victim’s medicines and hospital care, in conjunction with the
       corresponding specific jury instructions. While these latter arguments might have appeal on
       the merits, defendant does not develop them. Instead, defendant focuses on the sufficiency of
       the evidence, and our comments will address that issue. In advancing this contention,
       defendant directs us to the conflicts between Montez’s and Teas’s testimony, and argues that
       the evidence is devoid of any indication that the victim suffered trauma or life-threatening
       injuries.
¶ 18       When presented with a challenge to the sufficiency of the evidence, it is not the function of
       the reviewing court to retry the defendant. People v. Collins, 106 Ill. 2d 237, 261 (1985).
       Rather, “ ‘the relevant question is whether, after viewing the evidence in the light most
       favorable to the prosecution, any rational trier of fact could have found the essential elements
       of the crime beyond a reasonable doubt.’ ” (Emphasis in original.) Id. (quoting Jackson v.
       Virginia, 443 U.S. 307, 319 (1979)). The reviewing court should not substitute its judgment for
       that of the trier of fact, which is responsible for weighing the evidence, assessing the credibility
       of witnesses, resolving conflicts in the evidence, and drawing reasonable inferences and
       conclusions from the evidence. People v. Sutherland, 223 Ill. 2d 187, 242 (2006). However, a
       reviewing court must set aside a defendant’s conviction if a careful review of the evidence
       reveals that it was so unreasonable, improbable, or unsatisfactory as to create a reasonable
       doubt of the defendant’s guilt. People v. Evans, 209 Ill. 2d 194, 209 (2004). “A defendant
       commits involuntary manslaughter when he unintentionally causes the death of an individual
       by acts that are performed recklessly and are likely to cause death or great bodily harm to
       another.” People v. Greer, 336 Ill. App. 3d 965, 977 (2003).
¶ 19       Defendant cites People v. Ehlert, 211 Ill. 2d 192 (2004). In Ehlert, the defendant gave birth
       in her home and, a few days later, park district employees found a baby’s corpse in a nearby
       lake. Id. at 195. In charging the defendant with first-degree murder, the State’s theory was that
       she hid her pregnancy and placed the baby in a plastic bag and either threw it in a creek or
       placed it near the creek. Id. at 205. Following a bench trial, the trial court found the defendant
       guilty, but the appellate court reversed after concluding that there was insufficient evidence
       that the baby was born alive. Id. at 203-04.
¶ 20       Our supreme court affirmed the appellate court’s reversal. The court noted that the medical
       examiner testified that she found no unusual cause of death and no marks on the baby
       indicating foul play. Although she surmised that the baby had drowned, she did not determine
       the manner of death to a reasonable degree of medical certainty at the time of the autopsy. Id. at
       205-06. The medical examiner acknowledged on cross-examination that, when she performed
       the autopsy, she could not determine whether the baby was born alive. Id. at 207. Thereafter,
       the police advised the medical examiner of the results of their investigation, including that
       someone heard the baby crying. Id. at 206. The medical examiner found the report “ ‘very
       significant’ ” and said that it confirmed her suspicions that the baby was born alive. Id. She
       then listed the death as a homicide. Id. at 207. The medical examiner further acknowledged on
       cross-examination that the baby could have died of natural causes. Id. at 209. The supreme
       court found that reasonable doubt existed regarding the defendant’s criminal agency. Id. at
       209-10.



                                                    -5-
¶ 21       We find the circumstances here distinguishable from those in Elhert. Montez testified that
       the discolorations in the victim’s chest and hips were contusions caused by force. Montez
       further testified that evidence of bleeding and fat liquification, along with discoloration on the
       victim’s tailbone, were consistent with force being applied to the victim. Most important,
       unlike the medical examiner in Elhert, Montez was able to determine the manner of death, as
       traumatic asphyxia due to restraint, at the time of the autopsy.
¶ 22       We recognize that Teas testified that, based on her review of the autopsy report and the
       victim’s medical records, she believed that the victim died of natural causes. However, it was
       the function of the jury, as the trier of fact, to resolve conflicts in expert testimony. See People
       v. Slover, 2011 IL App (4th) 100276, ¶ 22 (noting that the trier of fact executed its function in
       resolving conflicts between the parties’ expert witnesses and that its reliance on the State’s
       expert over the defendant’s expert did not render its decision erroneous). Thus, we conclude
       that the State produced sufficient evidence to prove defendant’s guilt beyond a reasonable
       doubt.

¶ 23                                     B. Spoliation of Evidence
¶ 24       Defendant’s next contention on appeal is that the trial court erred in denying his first
       motion to dismiss the indictment, based on the State’s spoliation of evidence. Defendant
       argues that the trial court should have dismissed the indictment because the State, after being
       served with a discovery request, released the victim’s body for cremation. Specifically,
       defendant argues that “following [his] first court appearance, the defense was not required to
       make an independent showing that the evidence had exculpatory value in order to establish a
       due[-]process violation. The State’s duty at this juncture was one of preservation, which was
       circumvented by the destruction of the decedent’s body.” Defendant maintains that he suffered
       “substantial prejudice” from the State’s failure to preserve the victim’s body.
¶ 25       A discovery violation may be analyzed either as a due-process violation under Arizona v.
       Youngblood, 488 U.S. 51, 58 (1988), or under Illinois Supreme Court Rule 415(g)(i) (eff. Oct.
       1, 1971). People v. Borys, 2013 IL App (1st) 111629, ¶ 17. With respect to due process,
       defendant cites, among other cases, People v. Newberry, 166 Ill. 2d 310 (1995). In Newberry,
       the State charged the defendant with possession of a controlled substance with intent to deliver.
       Id. at 312. Defense counsel filed a discovery motion pursuant to Rule 415 requesting “all
       tangible objects that had been seized from [the defendant].” Id. Thereafter, the State
       accidentally and without bad faith destroyed the cocaine found on the defendant’s person. Id.
       at 313. The trial court dismissed the indictment and the appellate court affirmed. Id. Our
       supreme court also affirmed, holding that due process “mandated” the dismissal. Id. at 311. In
       reaching its determination, our supreme court concluded:
               “Where evidence is requested by the defense in a discovery motion, the State is on
               notice that the evidence must be preserved, and the defense is not required to make an
               independent showing that the evidence has exculpatory value in order to establish a
               due[-]process violation. [Citation.] If the State proceeds to destroy the evidence,
               appropriate sanctions may be imposed[,] even if the destruction is inadvertent. No
               showing of bad faith is necessary. [Citation.]” Id. at 317.
       Our supreme court also concluded that dismissing the action was an appropriate sanction under
       Rule 415(g)(i). Id. at 311.


                                                    -6-
¶ 26       After Newberry, the United States Supreme Court issued Illinois v. Fisher, 540 U.S. 544
       (2004). In Fisher, the State charged the defendant with possession of cocaine and, eight days
       later, defense counsel issued a discovery motion for all physical evidence that the State
       intended to use at trial. Id. at 545. While released on bond, the defendant fled and remained a
       fugitive for 10 years. After the defendant was apprehended, the State reinstated the charges. Id.
       Before trial, the State advised the defendant that it had destroyed the substance that it retrieved
       when initially arresting him. Id. at 546. The trial court denied the defendant’s motion to
       dismiss and a jury convicted him. Id. The appellate court, relying on Newberry, reversed. The
       court concluded that, although the State did not act in bad faith, it destroyed the evidence after
       the defendant had issued a discovery request. Id. at 546-47.
¶ 27       The United States Supreme Court disagreed. In doing so, the Court concluded that the
       evidence seized was merely “potentially useful” evidence as opposed to “material
       exculpatory” evidence. (Internal quotation marks omitted.) Id. at 548. Therefore, the defendant
       had to prove that the State acted in bad faith when destroying the evidence. Id. at 547-48. In
       reaching its determination, the Court opined:
                   “We have never held or suggested that the existence of a pending discovery request
               eliminates the necessity of showing bad faith on the part of police. Indeed, the result
               reached in this case demonstrates why such a per se rule would negate the very reason
               we adopted the bad-faith requirement in the first place: to ‘limi[t] the extent of the
               police’s obligation to preserve evidence to reasonable grounds and confin[e] it to that
               class of cases where the interests of justice most clearly require it.’ [Citation.]
                   We also disagree that Youngblood does not apply whenever the contested evidence
               provides a defendant’s ‘only hope for exoneration’ and is ‘ “essential to and
               determinative of the outcome of the case.” ’ *** [T]he applicability of the bad-faith
               requirement in Youngblood depended not on the centrality of the contested evidence to
               the prosecution’s case or the defendant’s defense, but on the distinction between
               ‘material exculpatory’ evidence and ‘potentially useful’ evidence. [Citation.] As we
               have held [citation], the substance destroyed here was, at best, ‘potentially useful’
               evidence, and therefore Youngblood’s bad-faith requirement applies.” Id. at 548-49.
¶ 28       While Fisher supersedes Newberry with respect to due process under the fourteenth
       amendment to the United States Constitution (People v. Kizer, 365 Ill. App. 3d 949, 960
       (2006)), our supreme court has not determined whether the due-process clause in the Illinois
       Constitution provides broader protection (People v. Sutherland, 223 Ill. 2d 187, 240 (2006)
       (“We find it unnecessary to decide whether the outcome-determinative analysis adopted in
       Newberry still has vitality in light of the Fisher opinion because, even if it does, Newberry is
       inapplicable under the facts present here.”)). However, the Illinois Appellate Court, Fourth
       District, has concluded that our supreme court would likely adopt the analysis in Fisher when
       interpreting the due-process clause in the Illinois Constitution. Kizer, 365 Ill. App. 3d at
       960-61. The court in Kizer noted that our supreme court had declined an invitation to interpret
       the Illinois due-process clause more broadly than the federal due-process clause and had
       recently reaffirmed the “limited lockstep analysis” when interpreting the Illinois due-process
       clause. (Internal quotation marks omitted.) Id. at 961. This court subsequently agreed with
       Kizer’s rationale. People v. Voltaire, 406 Ill. App. 3d 179, 183 (2010). Thus, pursuant to
       Fisher, and contrary to defendant’s argument, he was required to establish that the victim’s


                                                    -7-
       body was material exculpatory evidence or, if the victim’s body was merely “potentially
       useful” evidence, that the State acted in bad faith.
¶ 29        In this case, defendant failed to demonstrate that the victim’s body was material
       exculpatory evidence. On the contrary, Teas testified that she was not aware that the victim’s
       body was cremated a few days after Montez performed his autopsy. She clarified that it
       “[made] no difference” to her. As a result, the victim’s body would have provided potentially
       useful evidence as to the cause of death, but her body would not have exculpated defendant.
¶ 30        Further, we agree with the trial court that the mere assertion that the State allowed the
       victim’s body to be cremated, without more, is insufficient to establish bad faith. Therefore,
       the trial court did not err in concluding that defendant failed to establish bad faith. See Kizer,
       365 Ill. App. 3d at 961.
¶ 31        With respect to a Rule 415 analysis, we initially note that it is unclear whether the trial
       court made a determination regarding a discovery violation under the rule. In any event, the
       trial court would not have erred in declining to impose sanctions. Illinois law is well settled
       that “[s]anctions are intended to accomplish the purpose of discovery, not to punish the
       offending party.” People v. Scott, 339 Ill. App. 3d 565, 572 (2003). The standard of review for
       a ruling on a discovery sanction is whether the trial court abused its discretion. People v.
       Mullen, 313 Ill. App. 3d 718, 736 (2000). Here, we have already concluded that the trial court
       did not err in finding that defendant failed to establish that the State acted in bad faith by not
       preserving the victim’s body. To the extent that it relied on Rule 415, the trial court did not
       abuse its discretion in refusing to dismiss the indictment. See People v. Walton, 376 Ill. App.
       3d 149, 158 (2007) (holding that the trial court did not abuse its discretion by admitting
       materials that the State failed to disclose, in part because the State did not act willfully).
¶ 32        Finally, defendant notes that section 3-3034 of the Counties Code provides:
                “After the inquest the coroner may deliver the body or human remains of the deceased
                to the family of the deceased or, if there are no family members to accept the body ***
                then to friends of the deceased, if there be any, but if not, the coroner shall cause the
                body or the remains to be decently buried, cremated, or donated for medical science
                purposes ***. The coroner may not approve the cremation or donation of the body if it
                is necessary to preserve the body for law enforcement purposes.” 55 ILCS 5/3-3034
                (West 2012).
       Defendant emphasizes that the State denied him the opportunity to conduct his own forensic
       examination or autopsy. Defendant further argues that preserving the victim’s body was
       necessary for law enforcement purposes. According to defendant, the destruction of the
       victim’s body in violation of section 3-3034 resulted in a due-process violation that
       “substantially impair[ed] the defense of this case.”
¶ 33        Defendant’s argument is belied by testimony from his expert witness. Teas testified that
       the victim’s body being cremated a few days after Montez performed his autopsy made “no
       difference” to her. Although she could not examine the body, Teas was able to review the
       autopsy report and the victim’s medical records. In doing so, she reached the conclusion that
       the victim died of natural causes, not asphyxiation, and defendant presented that defense. Thus,
       the record is devoid of any indication that the cremation of the victim’s body impaired the
       defense, because defendant “had an alternate means of raising doubt in the mind of the trier of
       fact as to the cause of death.” People v. Jordan, 103 Ill. 2d 192, 212 (1984).


                                                   -8-
¶ 34       Despite our holding, we nonetheless express our concern over the circumstances leading to
       the victim’s body being cremated. We note that section 5-1085.5 of the Counties Code (55
       ILCS 5/5-1085.5 (West 2012)) provides:
               “Each county *** must establish a written protocol to deal with homicides and
               questionable deaths. The protocol must be promulgated by the Coroner, Sheriff, State’s
               Attorney, all fire departments and fire protection districts located in the county, and all
               police departments located in the county.”
       Section 5-1085.5 requires a county to adopt uniform procedures concerning homicides and
       questionable deaths. 55 ILCS 5/5-1085.5(d) (West 2012). In this case, the coroner testified that
       he merely spoke with a law enforcement officer, who assured him that the victim’s body was
       no longer needed, before releasing the body for cremation. While it is not clear from the record
       whether Lake County has established a protocol in accordance with section 5-1085.5, we
       believe that, in light of the questionable and controversial nature of the victim’s death, the State
       should have exhibited more care before releasing the victim’s body. Counties are admonished
       to adopt a protocol pursuant to section 5-1085.5, which would necessarily include ensuring
       that the body of a person who died under questionable circumstances is not released without
       adequate caution. Failure to adopt a protocol and adhere to it could impair prosecutions of
       homicide or questionable-death cases in the future.

¶ 35                                        C. Motion to Suppress
¶ 36       Defendant’s next contention is that the trial court erred in denying his motion to suppress
       statements he made after he invoked his right to counsel.
¶ 37       The fifth and fourteenth amendments to the United States Constitution and article I, section
       10, of the Illinois Constitution of 1970 prohibit the government from compelling citizens to
       incriminate themselves. In Miranda v. Arizona, 384 U.S. 436, 474 (1966), the United States
       Supreme Court articulated rules to ensure that the right to be free from coerced
       self-incrimination retained meaning, including, upon request by the suspect, that the suspect
       have counsel present during custodial interrogation. An “accused *** having expressed his
       desire to deal with the police only through counsel, is not subject to further interrogation by the
       authorities until counsel has been made available to him, unless the accused himself initiates
       further communication, exchanges, or conversations with the police.” Edwards v. Arizona, 451
       U.S. 477, 484-85 (1981). Thus, the exclusionary rule bars the prosecution from using
       statements obtained after a defendant invokes his right to counsel, unless the State can
       establish that (1) the defendant initiated further conversations; and (2) he knowingly and
       intelligently waived the right he had invoked. People v. Winsett, 153 Ill. 2d 335, 350 (1992).
       The State bears the burden of proving that a defendant initiated further conversations, in that he
       “ ‘evinced a willingness and a desire for a generalized discussion about the investigation.’ ”
       People v. Outlaw, 388 Ill. App. 3d 1072, 1083 (2009) (quoting Oregon v. Bradshaw, 462 U.S.
       1039, 1045-46 (1983)).
¶ 38       When reviewing a trial court’s ruling on a motion to suppress, we apply a two-part standard
       of review. First, the trial court’s factual findings will not be reversed unless they were against
       the manifest weight of the evidence. People v. Schuning, 399 Ill. App. 3d 1073, 1081 (2010).
       Second, “[w]e review de novo the trial court’s ultimate legal ruling as to whether suppression
       is warranted.” Id.


                                                    -9-
¶ 39        In Outlaw, police arrested the defendant, who had invoked his right to counsel after an
       officer asked him if he wished to cooperate. Outlaw, 388 Ill. App. 3d at 1076. While a detective
       was obtaining booking information, the defendant asked, “What would cooperating mean,
       what would that entail[?]” (Internal quotation marks omitted.) Id. at 1084. The detective
       explained that the defendant would have to help set people up to purchase drugs in “controlled
       buys.” Id. According to the detective, the defendant wished to cooperate and no longer wanted
       to talk to his lawyer. The court in Outlaw held that the defendant’s question regarding
       cooperation “evinced a willingness and desire to discuss the investigation.” Id.
¶ 40        We find the circumstances in Outlaw to be similar to the circumstances here. After
       defendant had invoked his right to counsel, the police were in the process of transferring him
       back to the Vernon Hills police department. On the way, defendant asked why no one was
       talking to him and an officer advised defendant that he had invoked his right to counsel.
       Defendant said that he would talk to the police if he could first talk to his mother. The police
       brought defendant back to the Mundelein police department and again gave defendant his
       Miranda warnings. When defendant had a question about his right to an attorney, a detective
       explained that, if defendant invoked that right, officers could no longer speak to him about the
       case. Defendant responded “Okay, I understand. So I say that I want a lawyer, the interview is
       over at that point.” Based on the totality of the circumstances, we conclude that defendant
       initiated further conversations with the police and knowingly and intelligently waived the right
       that he had invoked. See id. at 1084-85.
¶ 41        Defendant further argues that the trial court erred in admitting the video and transcript of
       his interview, because they were not substantially accurate. Defendant argues that there “were
       at least 1,090 inaudible passages or other garbled entries on the tape and transcript.”
¶ 42        Section 103-2.1 of the Code of Criminal Procedure of 1963 provides that an oral statement
       made during a custodial interrogation during a murder investigation is inadmissible unless an
       electronic recording of that interrogation is made and the recording is both substantially
       accurate and not intentionally altered. 725 ILCS 5/103-2.1(b)(1), (b)(2) (West 2012). Our
       supreme court has held that a partially inaudible recording is admissible “unless the inaudible
       portions are so substantial as to render the recording untrustworthy as a whole.” People v.
       Manning, 182 Ill. 2d 193, 212 (1998). The decision to admit a partially inaudible recording
       rests within the trial court’s discretion and we will not reverse unless the trial court abused that
       discretion. Id.
¶ 43        In People v. Harper, 2013 IL App (4th) 130146, the trial court suppressed the defendant’s
       statements because 30 minutes of a 100-minute interrogation were inaudible due to an
       unintentional equipment malfunction. Id. ¶¶ 7, 15. The reviewing court reversed. In doing so,
       the court noted that section 103-2.1(f) (725 ILCS 5/103-2.1(f) (West 2012)) provides that the
       State can overcome inadmissibility if it can show by a preponderance of the evidence that the
       statements were voluntary and reliable given the totality of the circumstances. Harper, 2013 IL
       App (4th) 130146, ¶ 19. The court concluded that the defendant’s statements were voluntary
       and reliable because the defendant did not contend that he was mentally ill, lacked average
       intelligence, or was under the influence of a substance that could affect the reliability of the
       statements. Id. ¶ 30.
¶ 44        Similarly, here, defendant makes no such arguments. Instead, defendant argues that the
       police were “fully aware of the need to make an audible recording” and picked the room for the
       interrogation. These arguments, even if true, do not rebut the evidence that the police advised

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       defendant of his Miranda rights, that defendant voluntarily spoke with the police regarding the
       circumstances leading to the victim’s death, and that those statements were reliable. Therefore,
       the trial court did not abuse its discretion in admitting the statements. See People v. Bauer, 393
       Ill. App. 3d 414, 422 (2009) (holding that the trial court did not abuse its discretion in
       admitting a recording despite 125 areas where the transcriber could not understand the
       defendant or the person interviewing her).

¶ 45                                            D. Sentence
¶ 46        Defendant’s final contentions are that his sentence was excessive, that he was entitled to an
       additional credit for time spent “in custody” before trial, and that he was given an enhanced
       sentence without the necessary jury finding that the victim was a family or household member.
       We will address each argument in turn.
¶ 47        First, we reject defendant’s contention that his sentence was excessive. “[T]he trial court is
       in the best position to fashion a sentence that strikes an appropriate balance between the goals
       of protecting society and rehabilitating the defendant.” People v. Risley, 359 Ill. App. 3d 918,
       920 (2005). Thus, we may not disturb a sentence within the applicable range unless the trial
       court abused its discretion. People v. Stacey, 193 Ill. 2d 203, 209-10 (2000). A sentence is an
       abuse of discretion only if it is at great variance with the spirit and purpose of the law or
       manifestly disproportionate to the nature of the offense. Id. at 210.
¶ 48        Defendant does not provide any authority to support his argument. Instead, he relies on
       conclusory statements that the jury’s verdict “seemed to find” that he did not intend to kill the
       victim and that the evidence demonstrated that he was “poorly equipped and truly incapable”
       of helping the victim with her mental-health issues. Accordingly, this argument is forfeited for
       want of development. See People v. Haissig, 2012 IL App (2d) 110726, ¶ 17 (argument
       forfeited for lack of development, pursuant to Illinois Supreme Court Rule 341(h)(7) (eff. July
       1, 2008)). In any event, based on our review of the record, we see no abuse of discretion in the
       trial court sentencing defendant to 8 years’ imprisonment when the sentencing range was 3 to
       14 years’ imprisonment. See 720 ILCS 5/9-3(f) (West 2012); People v. Gold, 221 Ill. App. 3d
       187, 190 (1991) (holding that the trial court did not abuse its discretion in sentencing the
       defendant to an extended term of 10 years’ imprisonment for involuntary manslaughter).
¶ 49        Second, defendant’s argument that the trial court erred in refusing to grant him credit for
       the time that he spent on electronic monitoring before trial is misplaced. Citing section
       5-4.5-100(b) of the Unified Code of Corrections (730 ILCS 5/5-4.5-100(b) (West 2012)),
       defendant notes that home confinement is defined as the “confinement of a person convicted or
       charged with an offense to his *** place of residence under the terms and conditions by a
       supervising authority.”
¶ 50        In People v. Smith, 2014 IL App (3d) 130548, the reviewing court considered whether the
       defendant, who was released on bond and subject to a GPS-monitoring device during the
       pendency of his direct appeal, was entitled to a credit. Id. ¶¶ 4-5. Interpreting section
       5-4.5-100, the court concluded that “home confinement pursuant to an appeal bond does not
       qualify as custody entitling one to credit against his sentence under the statute.” Id. ¶ 35
       (discussing People v. Beachem, 229 Ill. 2d 237, 243 (2008), and the conditions afforded
       someone released on bond, including the ability to challenge the conditions of release). We
       agree with the reasoning in Smith and conclude that because defendant was released on bond


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       while being subject to electronic monitoring, the trial court did not err in refusing to give him a
       credit.
¶ 51        Finally, citing Alleyne v. United States, 570 U.S. ___, 133 S. Ct. 2151 (2013), defendant
       argues that the trial court improperly enhanced his sentence without a proper jury finding that
       the victim was a member of the family or household, a necessary element of the offense of
       involuntary manslaughter of a family or household member (see 720 ILCS 5/9-3(f) (West
       2012)). The State concedes that the enhancement factor should have been presented to the jury
       as an element of the offense. However, the State cites People v. Thurow, 203 Ill. 2d 352 (2003),
       and argues that the error was harmless.
¶ 52        We are persuaded by the State’s argument. In Thurow, our supreme court held that
       harmless-error review applied when a jury, as opposed to a trial judge, should have determined
       whether the victim was a household member. The proper test is, “ ‘[i]s it clear beyond a
       reasonable doubt that a rational jury would have found the defendant guilty absent the error?’ ”
       Id. at 368-69 (quoting Neder v. United States, 527 U.S. 1, 18 (1999)). The Thurow court
       concluded that the evidence in support of the omitted element was “uncontested and
       overwhelming” and that therefore the failure to instruct the jury was harmless. Id. at 369.
       Similarly, in this case, the evidence that the victim was a member of defendant’s family and
       household was uncontested and overwhelming. It was undisputed that defendant and the
       victim were married, and testimony reflected that they were “a very loving couple.” Thus, the
       trial court’s error in failing to submit to the jury that element of the offense of involuntary
       manslaughter of a family or household member was harmless.

¶ 53                                      III. CONCLUSION
¶ 54      For the reasons stated, we affirm the judgment of the circuit court of Lake County.

¶ 55      Affirmed.




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