                                          2014 IL App (3d) 120522

                                       Opinion filed August 26, 2014

                       Modified Upon Denial of Rehearing October 2, 2014
     ______________________________________________________________________________

                                                    IN THE

                                    APPELLATE COURT OF ILLINOIS

                                             THIRD DISTRICT

                                        A.D., 2014
     ______________________________________________________________________________

     THE PEOPLE OF THE STATE OF ILLINOIS, )                     Appeal from the Circuit Court
                                          )                     of the 12th Judicial Circuit,
                                          )                     Will County, Illinois,
          Plaintiff-Appellee,             )
                                          )
          v.                              )                     Appeal No. 3-12-0522
                                          )                     Circuit No. 09-CF-78
     JERAMY J. GREEN,                     )
                                          )
          Defendant-Appellant.            )       The Honorable
                                          )       Sarah Jones,
                                                  Judge, Presiding.
     _____________________________________________________________________________

           JUSTICE McDADE delivered the judgment of the court, with opinion.
           Justices Holdridge and O'Brien concurred in the judgment and opinion.
     _____________________________________________________________________________
                                            OPINION

¶1          Jeramy J. Green (Green), the defendant, was charged with first degree murder. He filed

     several pretrial motions including a motion to quash arrest and suppress evidence. The trial court

     granted the State's motion for a directed finding at the close of Green's motion hearing. It found

     the investigatory stop leading to Green's arrest proper and that the defense failed to shift the
     burden to the State. It also found the unrecorded portion of Green's custodial interview

     voluntary and reliable rebutting the inadmissibility provision of section 103-2.1 of the Illinois

     Code of Criminal Procedure of 1963 (the Code) (725 ILCS 5/103-2.1 (West 2008)). Section

     103-3(a) of the Code regarding family members was found to be inapplicable. (725 ILCS 5/103-

     3(a) (West 2008)) Green's motion to reconsider was denied.

¶2          The case proceeded to a bench trial. Green was convicted of first degree murder and

     sentenced to 36 years' imprisonment. He appealed the trial court's ruling on his pretrial motion

     to quash his arrest and suppress evidence. In a decision issued August 26, 2014, this court

     affirmed the trial court's denial of his pre-trial motion and Green's conviction.

¶3          Green has filed a petition for rehearing raising two issues with this court's decision: (1)

     the court relied on a factual finding not supported by the record and (2) this court did not

     properly factor in purportedly conflicting evidence in reviewing defendant's challenge to the trial

     court's entry of a directed verdict. The petition is denied with slight modification of the opinion.

     We have removed the word "recent" as a description of the threats described to Reid by

     Brittany's parents. A fuller description of the testimony of Detectives Avila, Diehl and

     Schumacher and a more extensive discussion of the standard for granting a directed verdict have

     been included. The ruling of the trial court remains affirmed.

¶4                                              FACTS

¶5          The following account of events is drawn from the testimony at Green's bench trial.

¶6          Around 11:30 p.m. on January 7, 2009, Lieutenant Marc Reid (Reid) responded to a

     dispatch call in Joliet and observed the dead body of Brittany Brooks (Brittany). Through a

     police database, Reid learned that she had been involved in prior domestic incidents with Green.



                                                       2
     Reid also spoke with Brittany's parents and learned of threatening text messages between

     Brittany and Green. 1 Reid discovered four addresses associated with Green and that a Pontiac

     Grand Am was registered to him.

¶7          After providing them with the information he had regarding the investigation, Reid sent

     several detectives to each of the four addresses. Reid noted there was no probable cause to arrest

     Green and no specific information existed at the time directly linking Green to Brittany's death.

     He assigned Detectives Patrick Schumacher (Schumacher), Moises Avila (Avila), and Stephen

     Diehl (Diehl) to investigate the house at 1018 Summit, one of the four addresses.

¶8          Upon arriving at the house, the detectives did not see Green's Pontiac Grand Am. Avila

     testified they drove by the front and then the rear of the house checking for vehicles parked in

     either area that might have occupants sitting with the engine running and lights off either waiting

     to leave or having just arrived; they found none. He testified that they returned to the front of the

     house and observed a Honda minivan (minivan) and a Chevy Monte Carlo (car) driving away.

            1
                While there is, in fact, evidence in the record that at least one of the generic threats

     about which Reid was informed by Brittany's parents had been recent, there is nothing in the

     record to show that he was actually told that night about the timing or that he factored it into his

     decision to seek out Green. However, contrary to the defendant's contention, the timing of the

     threats was not the basis for our holding.

            Not knowing whether any of the threatening communications had been recent does not

     undermine the impact of the officer's knowledge that Brittany and defendant had a history of

     threatening texts, emails and voicemail messages and a history of domestic violence. Such

     information in any homicide investigation would make a person "a person of interest."
                                                         3
       He stated that the two vehicles had not been in the front when they originally arrived. He had no

       knowledge whether the vehicles or persons in them were associated with the house.

¶9             Diehl testified that the squad car drove by the front and then rear of the house, he saw the

       minivan and car parked in the back of the house and also saw them leaving from the back of the

       house within minutes of the detectives' arrival. He did not see anyone get into the cars but

       speculated its occupants came from the house since the cars were parked on the property.

¶ 10          Schumacher testified similarly to Diehl, stating that after checking the area around the

       house for Green's car, he saw two vehicles leaving from the rear of the house. He stated that he

       could not recall who saw the vehicles first or the details of their discussion at that time about

       them. He also had no knowledge of who owned the vehicles or who was in them. He radioed

       dispatch for assistance, providing the description of the vehicles and the direction in which they

       were heading so they could be stopped and checked for occupants. No traffic violations had

       been committed.

¶ 11          Officer Daniel Rupp heard the dispatched stop request. He intercepted and stopped the

       minivan. Rupp exited his car, drew his weapon for general safety purposes, and ordered the

       female driver, Green's sister, out of the minivan. When she complied, he handcuffed her and

       placed her in his squad car. She testified that she was driving Green, who was a passenger in the

       minivan, to the police station.

¶ 12          Sergeant Matthew Breen, having also heard the stop request, exited the police station and

       drove his car to where Rupp had stopped the minivan. Breen went to the passenger side of the

       minivan and spoke with a man who identified himself as Green. Although Breen was previously

       unaware Green was in the minivan, he recognized him as a person of interest relative to Brittany.




                                                         4
       Breen saw blood on Green's person, ordered him out of the minivan, and handcuffed him for

       officer safety purposes.

¶ 13          Schumacher, Diehl, and Avila arrived at the stopped minivan. Breen walked Green to

       Diehl, who noted a large amount of blood on Green's sweatshirt and took it into evidence. Green

       told Diehl that he had been on his way to the police station to make a statement when the

       minivan was stopped. Green was then walked to the police station.

¶ 14          At the police station, Reid ordered Diehl to start the recording equipment for the

       interrogation room, which Diehl failed to do properly.

¶ 15          At 3:23 a.m., Diehl and Avila presented and read Green a waiver of rights form, which

       Green signed. He agreed to speak with the detectives and did not ask for an attorney. Green was

       offered food, water, and the opportunity to use the restroom. Diehl noted that Green was in his

       mid-twenties, had a small cut on his hand but no other injuries, and exhibited no mental

       deficiencies.

¶ 16          At 4:44 a.m., Detective John Ross (Ross) was assigned to watch the interrogation on the

       recording computer and discovered that the equipment had not been recording. He started it and

       notified Reid of the error. Diehl and Avila, who were interrogating Green at the time, were not

       informed that the first 1 hour and 23 minutes of the custodial interview had not been recorded.

       They were told of the error when they later left the interrogation room. Diehl was reprimanded

       for not setting the equipment up properly.

¶ 17          Diehl and Avila both testified that People's Exhibit No.12, a video recording of Green's

       interrogation beginning at 4:44 a.m., accurately reflected their entire interview of Green. During

       the taped portion of the custodial interview, the detectives repeated the first version of events

                                                         5
       leading to Brittany's final moments that Green had given them during the unrecorded portion.

       Green never denied providing that account to them and his demeanor remained calm.

¶ 18          The detectives testified that they used profanity and raised their voices in an effort to get

       Green to display some emotion and admit his involvement in Brittany's death. They told Green

       several times that the crime scene did not match his story. The detectives admitted they were not

       trained to use profanity.

¶ 19          Later during the interrogation, Reid provided crime scene photos of Brittany's body

       which the detectives showed to Green. One of the photos placed directly in front of Green

       showed only one set of footprints in the snow, countering Green's first exculpatory statement.

       The other photos of Brittany's body at the crime scene were placed sporadically on the table.

       After Green repeatedly failed to explain the discrepancies between his story and the crime scene

       photos, Diehl picked up a photo of Brittany, held it up to Green, and demanded that Green look

       at Brittany's dead body and explain how she got there.

¶ 20          Diehl later left the room and was replaced by Ross. While Avila and Ross were in the

       interrogation room, Green gave a second version of events leading to Brittany's death, after

       which both detectives left the room. Ross reentered a few minutes later with Detective

       Christopher Schott. Schott told Green he had been listening to the interview and that things did

       not add up. Schott stated that the police had spoken with his cousin, his sister, and his sister's

       husband and what they told the detectives did not match Green's story. Green stated several

       times that he had told his family inconsistent and incomplete stories because of embarrassment.

       The detectives told Green that his family would understand embarrassment but not lying and that

       his family wanted the truth. Ross eventually left the room and Detective Shawn Filipiak took his




                                                         6
       place.

¶ 21            Green accused Filipiak of spitting in his face. Pushing Green, Filipiak denied spitting on

       him. Schott intervened. Filipiak offered to leave the room for Green's comfort and then left.

       Schott was alone with Green. Green was given water, food and allowed to use the restroom.

¶ 22            Schott continued the interrogation and exhorted Green to tell him what happened. The

       following are excerpts of the discussion.

                               SCHOTT: I said if you don't talk to me about it, I can't – I

                       can't put this – I can't – I can't explain this, all right? And right

                       now, your family wants to know. I mean, they're worried about

                       you. We're worried about what's going on. You've got to explain it.

                       You've already told me that it got out of hand, but you've got to

                       explain to me. You've got to let me know what's going on. So

                       what happened? I'm not – I don't want to sit here and – I'm not

                       (inaudible). I'm not going to sit here and put words in your mouth.

                       I don't want to sit here and make stuff up. I don't want to make a

                       scenario up. I want you to –

                               GREEN: My family still here?

                               SCHOTT: Huh?

                               GREEN: My family still here?

                               SCHOTT: They're around, yeah. Why? Do you want to see

                       them?

                                                     ***

                                                           7
                      GREEN: Can I see my family?

                      SCHOTT: Going to answer my questions?

                      GREEN: If I answer these questions, can I see my family?

                      SCHOTT: I'll talk to my boss. You answer the questions

              and I'll talk to my boss.

                      GREEN: So if I answer these questions, I'm going to be

              able to see my family?

                      SCHOTT: Then I'll talk to my boss.

                      GREEN: How?

                      SCHOTT: I said that I'll talk to my boss, but you have to

              answer the questions and you have to answer them truthfully. You

              have to give me something to go with. I can't go in there, ask for a

              favor, if I got nothing to offer. Do you understand? See you gotta

              tell me the truth so I know what's going on, okay? Did you stab

              her? Did you?

                      GREEN: No.

Green continued to insist a third person was there, but acknowledged that he was the one who

hurt the deceased. In response to several more denials of involvement, Schott told Green:

              "How am I supposed to let you see your family if you don't talk to

              me about it; if you don't give me something, which is the truth?

              You see what I'm saying? You're gonna send me out there with

              nothing. What am I supposed to do? You understand? See you



                                                8
                      gotta tell me the truth. You said you unintentionally hurt her, right?

                      Is that what you're saying? I can't hear you. Is that what you're

                      saying?"

       Green then admitted stabbing Brittany after she introduced a knife into their argument. Schott

       left the interrogation room to get Green water and ask his supervisor about allowing Green to see

       his family. Schott returned to the room to ask more questions, and Green told him where he had

       dropped the knife after leaving Brittany's car.

¶ 23          After Green used the restroom, Schott asked him to sign a consent form for leave to

       search his house, but Green refused.

¶ 24                                                  ANALYSIS

¶ 25                                  Denial of Motion to Quash and Suppress

¶ 26          Green first argues that because the State failed to provide evidence that a reasonable and

       articulable suspicion existed for the minivan to be seized, the trial court erred in granting the

       State's motion for directed finding and denying his motion to quash his arrest and suppress

       evidence. He contends that the case should be remanded for a new trial excluding any evidence

       gathered as a result of the seizure. We disagree and affirm the denial of Green's motion.

¶ 27          A ruling on a motion to quash an arrest and suppress evidence in the State's favor at the

       close of defendant's evidence presents mixed questions of law and fact. People v. Nitz, 371 Ill.

       App. 3d 747, 750 (2007). The trial court's findings of historical fact will be upheld on review

       unless they are against the manifest weight of the evidence, but “a reviewing court remains free

       to undertake its own assessment of the facts in relation to the issues presented and may draw its

       own conclusions when deciding what relief should be granted.” People v. Lee, 214 Ill. 2d 476,

                                                         9
       484 (2005). The ultimate question of whether to quash and suppress is reviewed de novo. Id.

¶ 28          A defendant moving to quash an arrest and suppress evidence must make a prima facie

       case that the police lacked probable cause. People v. Brexton, 343 Ill. App. 3d 322, 326 (2003).

       However, as here, when the denial of a motion to quash arrest and suppress evidence is based on

       the grant of a motion for directed finding, "the trial court does not view the evidence [in the

       light] most favorable to the [nonmovant] but, rather, (1) determines whether the [nonmovant] has

       made out a prima facie case, then (2) weighs the evidence, including that which favors the

       [movant]." Zankle v. Queen Anne Landscaping, 311 Ill. App. 3d 308, 311 (2000); see also 735

       ILCS 5/2-1110 (West 2008). The trial court's decision will only be reversed if it is against the

       manifest weight of the evidence. Zankle, 311 Ill. App. 3d at 311. Green argues that the initial

       investigatory stop that ultimately generated the probable cause for his arrest was illegal.

¶ 29          Terry v. Ohio, 392 U.S. 1 (1968), sets forth the principles we use to analyze the

       reasonableness of investigatory stops. Under Terry, a police officer may conduct a brief,

       investigatory stop of a person where the officer reasonably believes that the person has

       committed or is about to commit a crime. Terry, 392 U.S. at 22; People v. Gherna, 203 Ill. 2d

       165, 177 (2003). Determining whether the stop was an unreasonable seizure is a two-step

       process. People v. Sparks, 315 Ill. App. 3d 786, 792 (2000). First, we decide whether the stop

       was justified at its inception; next, we determine whether the scope of the stop was proportional

       to the circumstances that justified the interference in the first place. Terry, 392 U.S. at 19-20;

       Sparks, 315 Ill. App. 3d at 792.

¶ 30          Justification of an investigatory stop at its inception is reviewed objectively. People v.

       Thomas, 198 Ill. 2d 103, 109 (2001). "[T]he police officer must be able to point to specific and




                                                        10
       articulable facts which, taken together with rational inferences from those facts, reasonably

       warrant that intrusion." Terry, 392 U.S. at 21. The officer's suspicion must amount to more than

       an inarticulate hunch (Terry, 392 U.S. at 22; People v. Close, 238 Ill. 2d 497, 505, 511 (2010)),

       but need not rise to the level of suspicion required for probable cause (United States v. Sokolow,

       490 U.S. 1, 7 (1989); Close, 238 Ill. 2d at 505, 511). The collective knowledge of all of the

       officers involved in the apprehension of a defendant, even if such knowledge is not told to the

       arresting officer, may be considered by the trial court in determining whether a reasonable

       suspicion existed. People v. Hoekstra, 371 Ill. App. 3d 720, 723 (2007).

¶ 31          Citing People v. Ertl, 292 Ill. App. 3d 863 (1997), Green argues that the officers’

       collective knowledge did not amount to suspicion that is more than an inarticulate hunch. In

       Ertl, the court held that the defendant's estranged wife's police call did not justify a Terry stop of

       the defendant. Ertl, 292 Ill. App. 3d at 873. In that case, the wife telephoned the police and

       advised them that she and defendant had been involved in an altercation at her house. Id. The

       Ertl court found that the defendant's stop was not a valid Terry stop because (1) the wife's

       information “was based on limited and somewhat speculative observations and consisted largely

       of [her] subjective fears”; (2) the wife did not witness the defendant commit any criminal act and

       could not predict that he was going to do so; (3) the police only corroborated “innocent” details

       of the wife's tip, including the description of the defendant's vehicle and its location; (4) the

       officers did not observe defendant engage in any unlawful or threatening behavior before they

       stopped him; and (5) although “there were several officers” available to go to the wife's location

       and verify the information she provided, they did not do so. Id. at 873-74.

¶ 32          The case at hand is distinguishable from Ertl. Unlike Ertl, Green was a person of interest


                                                         11
       in the homicide of Brittany. After interviewing Brittany's family members and checking the

       police database, the police were aware that Green had sent Brittany threatening text messages

       and there was a history of domestic incidents between them. Thus, Green had already been

       implicated in earlier criminal domestic incidents and in threatening further such incidents. Reid

       dispatched several detectives to find and stop Green because he was a person they "wanted to

       speak to 2". So a Terry stop of Green at that time would have been a valid stop.

¶ 33          This court also concludes that the stop of the van in which Green was a passenger was a

       valid stop because the facts known to the police created a reasonable, articulable suspicion

       permitting a valid stop. Here the police learned of four addresses associated with Green,

       including the Summit Street house, and knew the kind of vehicle registered to him. Avila

       testified that their purpose for driving around the address was to look for Green's registered

       vehicle as well as any other cars that had occupants sitting with the engine running and lights off

       waiting to leave or having just arrived. Though they did not see Green's Pontiac Grand Am at

       the house, the three detectives saw the minivan and the car depart from the vicinity of that house

       at about 3 a.m. – only minutes after their arrival. A reasonable officer could form an articulable

       suspicion that Green or someone assisting him to evade responsibility for harming Brittany was

              2
                  Green's motion for rehearing references only the question as phrased by his counsel to

       Reid during his testimony at the motion to quash arrest and suppress evidence which concluded

       that Green was a person Reid felt they "should" talk to. However, in review of the entire

       testimony, Reid specifically states that he put out a request that Green was someone they

       "wanted to speak to" and affirmed the State's conclusion that Green should to be stopped in order

       to be spoken to.



                                                        12
       present in one of those vehicles leaving that specific location. Because they were leaving the

       area of one of the targeted addresses at 3:00 in the morning, the two vehicles fit what the officers

       were looking for in their effort to stop and speak with Green. Although the minivan was not

       observed engaging in any unlawful or threatening acts, the police had more than a mere hunch to

       justify its seizure.

¶ 34           The scope of the stop was also proportional to the circumstances. Green, citing People v.

       Mendez, 371 Ill. App. 3d 773 (2007), argues that the address investigated and where the minivan

       originated was too remote in time and proximity to the crime to justify the later Terry stop.

       Green requests the court to take judicial notice of the exact distance of the house from the crime

       scene and that the seizure occurred three hours after the crime. Yet, "[t]he size of the area in

       which the offender might be found, as indicated by such facts as the elapsed time since the crime

       occurred," is one of six factors the Mendez court indicated could be considered as grounds for

       stopping a suspect soon after an offense is committed. Mendez, 371 Ill. App. 3d at 776 (citing

       People v. Brown, 88 Ill. App. 3d 514, 519 (1980)). The "[k]nown or probable direction of the

       offender's flight" is also a factor for consideration. Id. at 776. In this case, the house the vehicles

       departed from is one of the four known addresses associated with Green. The detectives were

       assigned to those addresses because they were probable destinations for Green. According to at

       least two of the officers, the two vehicles were at the Summit Street house and they left there

       around 3 a.m.

¶ 35           Additionally, our case is distinguishable from Reid v. Georgia, 448 U.S. 438, 439 (1980),

       the origin of the quote the defendant cites to in People v. Croft, 346 Ill. App. 3d 669, 675 (2004).

       In Reid, other than the fact that upon disembarking from a known location, the airplane, the


                                                         13
       defendant's conduct, "[p]reced[ing] another person and occasionally look[ing] backward at

       him," is all the police could assert as grounds for the stop. Reid, 448 U.S. at 441. The Court

       stated that the conduct on which the officers relied "[d]escribe[d] a very large category of

       presumably innocent travelers, who would be subject to virtually random seizures." Id. Thus, the

       stop was not a valid Terry stop.

¶ 36          In this case, however, though noting they did not actually know who was in the minivan

       when they initiated the stop, there was little or no likelihood that a large category of innocent

       persons would have been affected by a stop in theses circumstances. In addition to the

       incriminating information gathered about Green prior to the detectives' dispatch, the minivan left

       the house of one of Green's known addresses. Two of the three assigned detectives testified that

       the minivan was one of the two vehicles they observed leaving from the rear of the house. One

       of those two detectives testified that he had seen both vehicles parked in the parking lot/driveway

       at the rear of the house. Although the third detective, who was driving, did not see the vehicles

       at the rear of the house, he, like the other two, did see the vehicle driving from the front of the

       house where there had not been anything parked earlier. The detectives described the vehicles

       and the direction each was traveling in the dispatch. The category of presumably innocent

       persons potentially affected in the particular circumstance of this case is significantly limited.

¶ 37          Thus, the minivan's seizure was based on a reasonable and articulable suspicion. Since

       Green does not contest the officer's probable cause to make the arrest after the stop, Green's

       arrest was valid. Evidence found subsequent to that valid stop and arrest was lawfully obtained.

¶ 38                                      Alleged Violation of Due Process

¶ 39          Finally, we briefly address Green's constitutional claim that his due process rights were




                                                         14
       violated when the trial court failed to include Avila's purportedly conflicting testimony about the

       location of the vehicles. The trial court’s factual findings in its order included the testimony of

       Schumacher and Diehl that the seized minivan had been parked in the rear of the house and left

       from there. The court did not include, or presumably consider, Avila's testimony that they

       observed the vehicles leaving from the front area of the Summit Street house.

¶ 40          Green argues that this constitutes a major discrepancy that the trial court failed to clarify.

       He cites People v. Mitchell, 152 Ill. 2d 274 (1992), and People v. Bowie, 36 Ill. App. 3d 177

       (1976), as controlling authority. However, these cases are distinguishable.

¶ 41          In Bowie, the court held that a defendant is denied due process "[w]here a record

       affirmatively indicates *** that the trial judge did not remember or consider the crux of the

       defense when entering judgment." Bowie, 36 Ill. App. 3d at 180. In Mitchell, the supreme court

       reversed the judgment of the trial court because, as in Bowie, the trial court did not remember the

       crux of the defense when entering judgment. Mitchell, 152 Ill. 2d at 321.

¶ 42          Here, the record reflects that the trial judge interrupted defense counsel during his closing

       argument to indicate that the court's notes included the deviation in Avila's testimony, thereby

       showing the testimony had not been forgotten. Moreover, it is doubtful whether the differing

       testimony of Avila is the crux of Green's defense. He does not argue or even mention this

       claimed discrepancy in his closing argument at the hearing on the motion to quash arrest and

       suppress evidence. He notes only Schumacher's testimony of seeing "a couple of cars leaving

       the scene" and suggests no significance to the variance in the departure locations described by

       the detectives.

¶ 43          Further, there is no support for Green's contention that the evidence should be viewed in

                                                        15
       a light most favorable to him, forcing greater weight on Avila's purportedly differing testimony.

       As previously stated, on a motion for directed finding, the trial court first determines whether the

       nonmovant made a prima facie case, then weighs the evidence. 735 ILCS 5/2-1110 (West 2008);

       Zankle, 311 Ill. App. 3d at 311. This latter step may result in the negation of evidence

       supporting the nonmovant's prima facie case. Kokinis v. Kotrich, 81 Ill.2d 151, 155 (1980). The

       nonmovant's remaining credible evidence must be sufficient to establish the nonmovant's prima

       facie case or the movant's motion should be granted. Id. A reviewing court will only reverse the

       trial court's decision if it is against the manifest weight of the evidence. Here, we do not find that

       it is.

¶ 44            In our review of the testimony of the officers, it would seem that there is no conflict.

       Avila does not say the cars did not leave from the back of the Summit Street house. He only

       stated that he saw the cars leave the area of the front of the residence. This does not conflict with

       Schumacher's account of seeing the vehicles coming from the rear of the residence because he

       further testified that he was unsure of who saw the vehicles first or their presumed discussion

       about them. Additionally, Diehl was the only one to state that he saw the vehicles originally

       parked in the back driveway of Summit Street house and then leave from the rear. When viewed

       together, there is no significant – only a piecemealed account of the location of the vehicles at

       different times by the officers. The trial court's findings of credibility were not against the

       manifest weight of the evidence.

¶ 45            For these reasons, we find Green's due process rights were not abridged and the evidence

       resulting from the arrest could properly be used at trial.

¶ 46                               Admissibility of Unrecorded Custodial Statements




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¶ 47          Green argues that the trial court erred in admitting his custodial interview statements at

       his bench trial because the State was ineffective in sustaining its burden of proving that the

       statements were voluntary and reliable pursuant to section 103-2.1 of the Code (725 ILCS 5/103-

       2.1 (West 2008)). He asserts that cumulatively (1) acquiescence to his request to see his family

       members conditioned upon him making an inculpatory statement, (2) his subjection to repeated

       profanity and crime scene photos of the Brittany's body, and (3) a custodial interview lasting five

       straight hours with essentially no breaks resulted in two involuntary and unreliable exculpatory

       statements and a final inculpatory statement. The State argues it showed by a preponderance of

       the evidence voluntariness and reliability in the custodial interview statements based on the

       totality of the circumstances exception provided under section 103-2.1(f) of the Code (725 ILCS

       5/103-2.1(f) (West 2008)). We find the State's argument persuasive and affirm the denial of

       Green's motion.

¶ 48          When reviewing a denial of a motion to suppress, great deference is given to the trial

       court's findings of fact and due weight is given to inferences reasonably drawn from those facts.

       Ornelas v. United States, 517 U.S. 690, 699 (1996). We review only for clear error. Id. A

       Court's factual findings are reversed only if they are against the manifest weight of the evidence;

       however, the question of whether the confession was voluntary is reviewed de novo. In re G.O.,

       191 Ill. 2d 37, 50 (2000). Thus our determination on that issue is made independently and

       without reference to the trial court's conclusion.

¶ 49          Green's petition for de novo review of the entire cause is not appropriate. The trial court

       was privy to the live testimony. People v. Valle, 405 Ill. App. 3d 46, 58 (2010) (noting the role

       live testimony has in resolving a disputed issue of fact). We defer to its fact finding unless it is


                                                         17
       against the manifest weight of the evidence.

¶ 50              Section 103-2.1 of the Code requires that statements made during a custodial interview be

       presumed inadmissible as evidence against the accused in any criminal proceeding brought under

       section 9-1 of the Criminal Code of 1961 or the Criminal Code of 2012 unless the entire

       interrogation was electronically recorded and the recording is substantially accurate and not

       intentionally altered. 725 ILCS 5/103-2.1(b) (West 2008). This is a rebuttable presumption.

       Section 103-2.1(f) of the Code provides an exception to this presumed inadmissibility if the State

       shows by a preponderance of the evidence that the statements were voluntarily given and are

       reliable, based on the totality of the circumstances. 725 ILCS 5/103-2.1(f) (West 2008).

¶ 51              Both parties agree on the following facts. Green was subjected to a custodial

       interrogation for the crime of firstdegree murder, a criminal proceeding listed under section 9-1

       of the Code of Criminal Procedures of 2012. (720 ILCS 5/9-1 (West 2012)). Therefore, the

       Joliet Police department was required to electronically record the entire interrogation of Green.

       However, nothing from the start of the interrogation at 3:23 a.m. until 4:44 a.m., a period of 81

       minutes, or 1 1/3 hours, was recorded due to Diehl's failure to activate the recorder. Ross started

       the device at 4:44 a.m. and the rest of the interview was recorded. The trial court found that the

       failure to record was unintentional. It also held that the initial unrecorded exculpatory statement

       given by Green was voluntary and reliable on the grounds of Green's lack of objection when

       Diehl and Avila repeated the original exculpatory statement after the recording was finally

       started.

¶ 52              While this court might take issue with the form of Green's "acquiescence" – mere silence

       when the officers recounted his alleged, but unrecorded, exculpatory statement during the




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       recorded portion of the custodial interview – this issue is not before us. A silent response to the

       officers' random recounting of pieces of a story may very well not amount to an "agreement"

       regarding what had been discussed prior to the start of the recording. However, Green has

       conceded that the officers' account was accurate by not only failing to challenge it on appeal but

       also affirming it in his brief. 3

¶ 53           Nevertheless, Green does challenge the legal finding of the court that the State sustained

       its burden of showing that the statements made during the recorded portion of the interrogation

       were voluntary and reliable. "[T]he test for voluntariness of a statement is whether the defendant

       made the statement freely, voluntarily, and without compulsion or inducement of any sort, or

       whether the defendant’s will was overcome at the time he or she confessed." People v. Gilliam,

       172 Ill. 2d 484, 500 (1996). The assessment is based on the totality of the circumstances. Id.

       Gilliam notes several factors to consider in determining voluntariness such as the defendant’s

       age, education intelligence, mental capacity, physical condition at the time of questioning, the

       legality and duration of the detention and questioning, whether the defendant was advised of his

       constitutional rights, and any physical or mental abuse by police including the existence of

       threats or promises. Id. at 500-01.

¶ 54           Green's first assertion that his final inculpatory statement was conditioned on a promise

       to see his family while true is without significance. The trial court found that Green was a 23-

       year-old adult, with prior criminal justice experience, not lacking in mental capacity or physical

       ability, and not exhibiting diminished intelligence. He does not fit the profile of an adult in need

               3
                   Green concedes at page 10 of his brief that the account given by the officers is the

       exculpatory statement he gave during the unrecorded portion of the custodial interview.
                                                          19
       of familial assistance when requested during a custodial interview. 4 He erroneously relies on

       section 103-3 of the Code (725 ILCS 5/103-3 (West 2008)) and also cites a distinguishable case,

       Haynes v. Washington, 373 U.S. 503 (1963).

¶ 55          Section 103-3 of the Code states that "[p]ersons who are arrested shall have the right to

       communicate with an attorney of their choice and a member of their family by making a

       reasonable number of telephone calls or in any other reasonable manner." 725 ILCS 5/103-3

       (West 2008). The intention of this section of the Code is to "permit a person held in custody to

       notify his family of his whereabouts" to enlist their help for procedural safeguards such as hiring

       an attorney. People v. Prim, 53 Ill. 2d 62, 69 (1972); 725 ILCS 5/103-3(a) (West 2008). "[T]his

       statute does not give the defendant the right to have a member of his family present with him

       during interrogation or even to visit with him while in custody other than at regular visiting

       periods." Prim, 53 Ill. 2d at 69.

¶ 56          Yet, Green argues that his facts are similar to and possibly worse than those of Haynes.

       From the time he was arrested until his confession 16 hours later, plus an additional several days,

       Haynes' continuous requests to call an attorney and also to call his wife to inform her of his

       location and make legal arrangements were disregarded and used as an unfulfilled condition for

       his inculpatory statements. Haynes, 373 U.S. at 511. He was not "advised by authorities of his

              4
                  People v. Westmorland, 372 Ill. App. 3d 868, 880-90 (2007), discusses the Illinois

       court's transition to the acceptance of a profound need of parental assistance when requested by

       newly-emancipated offspring as opposed to previous cases holding that an adult's request for

       assistance should only be honored if the request is made by a licensed attorney familiar with the

       legal system.



                                                        20
       right to remain silent, warned that his answers might be used against him, or told of his rights

       respecting consultation with an attorney." Id. The court found that the officers' conditioning the

       ability to speak with an attorney or spouse regarding his whereabouts on signing an inculpatory

       statement was an impermissible method of obtaining a confession. Id. at 508.

¶ 57            Here Green's family knew of his whereabouts and why he was being interviewed before

       the custodial interview started. His sister was the driver of the minivan and testified that she and

       Green were headed to the police station for Green to give a statement about the events leading to

       Brittany's death. He was walked into the station from her minivan. Green was also told

       throughout the custodial interview that his story and the statements given by his family members

       did not match.

¶ 58            Further, the record does not show that Green's requests for his family were made for legal

       advice. He signed a waiver of rights form acknowledging he was fully informed of and validly

       waived his right to counsel. That fact is not contested.

¶ 59            Next, Green argues that the officers' interrogation method was improper. It is improper

       to use fear or threats to elicit confessions. Gilliam, 172 Ill. 2d at 501. However, the profanity

       complained of by Green, though impolite, contextually amounted to the officers' characterization

       of Green's account of the events leading to Brittany's death. The crime scene photos were

       brought in to show that Green's first exculpatory statement did not match the visual evidence at

       the scene. Though the photos depicting Brittany at the scene were graphic, they were not solely

       used to elicit a response from Green. They were also used to show that the statement of

       occurrences given by Green in his first exculpatory statement was not consistent with the crime

       scene.

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¶ 60          Green's final argument points to the length of his interrogation. He asserts he was

       subjected to six separate officers interrogating him for five hours until he finally gave his

       inculpatory statement. He argues that he was only given a four-minute break where there were

       no detectives in his interrogation room and supports this argument by citing Spano v. New York,

       360 U.S. 315 (1959). However, we do not believe the Supreme Court was referencing Green's

       type of conditions when it discussed being overborne by official pressure and fatigue in Spano.

       The defendant in Spano was interrogated by 15 law enforcement officials for an uninterrupted

       eight hours that "began in early evening, continued into the night, and did not bear fruition until

       the not-too-early morning." Spano, 360 U.S. at 322. The only semblance of a break involved

       moving from one interrogation area to another. Id. The defendant was not allowed to speak with

       the attorney he had already retained and who had delivered him to the custody of the police

       pursuant to a bench warrant. His confession was found to be involuntary because he was

       "overborne by official pressure, fatigue and sympathy falsely aroused" by a ruse created by the

       police and executed by his friend. Id. at 323.

¶ 61          Green's custodial interview varies greatly from Spano. There is no bright-line rule in

       Illinois regarding the allowable length of an interrogation. Interrogations lasting six or eight

       hours do not necessarily render a statement involuntary. People v. Ramey, 152 Ill. 2d 41, 58-59

       (1992); People v. Terrell, 132 Ill. 2d 178, 201 (1989). Green was fully informed of his rights

       and never requested that the interrogation end or asked for an attorney. He was given several

       opportunities, which he notes in the facts of his brief, to break for food and water as well as use

       the restroom. Further, Green stated he was on his way to the police station to give a statement at

       the time the minivan was seized. Thus, the start of the interrogation was in accord with his




                                                        22
       alleged timeline. As the trial court noted, the interview length was extended because Green's

       versions of events continued to change. Therefore, the duration of his custodial interview does

       not render his statements involuntary or unreliable because there was no overbearing official

       pressure or fatigue.

¶ 62          Each of Green's contentions fails on its own merit. Such failings, even when viewed

       cumulatively, do not overcome the trial court's finding that the State met its burden of proving

       that Green's custodial statements were given voluntarily and are reliable.

¶ 63                                     CONCLUSION

¶ 64          The trial court's ruling is affirmed. The investigatory stop leading to Green's arrest was a

       valid Terry stop. Additionally, Green's custodial statements were given voluntarily and are

       reliable and could properly be used against him.

¶ 65          Affirmed.




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