                                         2014 IL App (1st) 130743

                                                                                   THIRD DIVISION
                                                                                  September 30, 2014



     No. 1-13-0743

     THE PEOPLE OF THE STATE OF ILLINOIS                     )              Appeal from the
                                                             )              Circuit Court of
            Plaintiff-Appellee,                              )              Cook County
                                                             )
     v.                                                      )              08 CR 10910-03
                                                             )
     DOMINIQUE CLAYTON,                                      )              Honorable
                                                             )              James L. Rhodes,
            Defendant-Appellant.                             )              Judge Presiding.


            JUSTICE MASON delivered the judgment of the court, with opinion.
            Presiding Justice Pucinski and Justice Lavin concurred in the judgment and opinion.

                                                OPINION

¶1          Defendant Dominique Clayton was charged with multiple counts of first degree murder,

     attempted first degree murder, and aggravated battery with a firearm under a theory of

     accountability for shootings that occurred on March 6, 2008.

¶2          During Clayton's bench trial, as the State attempted to introduce videotape recordings of

     two interviews of Clayton by police, defense counsel learned that a third interview had been

     conducted before any of the recorded interviews.        That first interview was not recorded.

     Clayton moved to suppress her statements to police for violation of section 103-2.1(b) of the

     Code of Criminal Procedure of 1963 (725 ILCS 5/103-2.1(b) (West 2012)) based on the failure

     to record her first interview.   After a hearing on Clayton's motion to suppress, the trial court

     found Clayton was in custody at the time of the first interview and, therefore, that the first
     No. 1-13-0743

     interview should have been recorded. Based on this finding, the court suppressed the videotapes

     of the second and third interviews under section 103-2.1(d) of the Code. 725 ILCS 5/103-2.1(d)

     (West 2012).

¶3          The State now appeals, arguing that the trial court erred in finding that defendant was in

     custody at the time of her first, unrecorded interview and therefore section 103-2.1 is

     inapplicable. The State further contends that it overcame the presumption of inadmissibility.

     We disagree and affirm.

¶4                                          BACKGROUND

¶5          On the afternoon of March 6, 2008, Kenneth Thomas and Maverick Magee were shot in

     South Holland, Illinois, resulting in Thomas's death and serious injuries to Magee. We will not

     summarize the facts relating to those shootings and Clayton's connection to them as they are not

     relevant to the issues on appeal. Clayton, along with codefendants who are not parties to this

     appeal, was charged with multiple counts of first degree murder, attempted first degree murder,

     and aggravated battery with a firearm in connection with the shootings. Clayton was charged

     under a theory of accountability. Clayton's and her codefendants' bench trial commenced on

     December 11, 2012.

¶6          Detectives Martin Knolmayer and Kenneth Arvin were assigned to investigate the

     shootings. At 11 p.m. on the night of March 6, 2008, Arvin and Knolmayer, along with at least

     two other officers, arrived at Clayton's home. The detectives asked Clayton to accompany them

     to the South Holland police station to talk about the shootings. Clayton, who was 17 years old at

     the time, agreed and was taken to the police station in the back of an unmarked police vehicle.

     Arvin testified that Clayton was not handcuffed and that when she was taken to the station,




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     Clayton was a witness and not a suspect. Arvin admitted that, prior to their arrival at Clayton's

     home that evening, police had compiled a list of suspects that included Clayton.

¶7          Once inside the police station, Clayton was taken to an unlocked interview room.

     According to Arvin's testimony at trial, the interview with Clayton lasted approximately 20

     minutes. A videotaped recording shows an interview with Clayton that began at 3:55 a.m. on the

     morning of March 7, 2008, nearly five hours after she was brought to the station. At the outset

     of the interview, Arvin asked Clayton whether she came to the police station "voluntarily" and

     "of her own free will" to which she responded affirmatively. The videotape shows Clayton was

     advised of her Miranda rights, which she waived. Arvin testified that "every word" made by

     Clayton was recorded. After the interview ended, Clayton was taken to the lobby of the police

     station to wait for a family member to take her home.

¶8          The next day, on March 8, 2008, Clayton was arrested at her place of employment, a

     McDonald's restaurant. Clayton was handcuffed and taken to the police station. At the station,

     Clayton again waived her Miranda rights and spoke to police.           That interview was also

     videotaped.

¶9          On the second day of Clayton's trial, as the State attempted to introduce the videotaped

     recordings of Clayton's interviews, defense counsel objected on foundation and authenticity

     grounds. The trial court overruled the objection and the videos were admitted into evidence. In

     the videotape of Clayton's March 7 interview, Arvin alluded to a prior interview as he questioned

     Clayton.   When trial resumed the following day, defense counsel again objected to the

     introduction of the videotaped interviews, this time on the basis that there had been an interview

     that had not been recorded. The trial court allowed defendant to recall Arvin to clarify that he

     had conducted an interview of Clayton that was not videotaped. This first, unrecorded interview


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       occurred one to two hours after Clayton was picked up from her home at 11 p.m. on March 6.

       Arvin testified that he took notes during the first interview but did not know where the notes

       were. The trial court delayed ruling on Clayton's objection until the next court date and ordered

       the officer to locate the notes from Clayton's first interview. The notes were never produced.

¶ 10              At the next court date, defense counsel argued that the detectives had violated section

       103-2.1 by not videotaping Clayton's first interview and that the videotapes of Clayton's second

       and third interviews were presumed inadmissible according to the statute. Defense counsel

       moved to suppress the videotaped recordings of Clayton's interviews with police. The trial court

       then adjourned the trial and conducted a hearing on Clayton's motion to suppress the videotaped

       interviews.

¶ 11              Both Arvin and Knolmayer testified at the suppression hearing. Their testimony revealed

       more information regarding the events on the night of March 6, 2008. When they arrived at

       Clayton's home at 11 p.m. with other officers, Arvin and Knolmayer spoke to Clayton's parents,

       introduced themselves, asked to speak to Clayton, and told them they wanted to speak to her at

       the station about the shootings. The detectives testified that Clayton was allowed to go to

       another part of the house to retrieve her jacket before she was taken to the police station. The

       detectives also advised Clayton's parents that they would bring her home. According to the

       detectives, Clayton was not considered a suspect before or after the first interview. Arvin

       admitted that in "canvasses" where police visit neighborhoods to interview witnesses, witnesses

       are generally interviewed in their homes and "suspects" are interviewed at the station.

       Knolmayer testified that he and the other detectives were "ordered" to bring Clayton to the

       station.




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¶ 12          Once at the station, Clayton was taken to a room. Arvin's testimony at trial was that

       Clayton was taken to an interview room, but at the suppression hearing, he testified that she was

       taken to an "administrative room or a report-writing room." Knolmayer testified Clayton was

       taken to an interview room that was not equipped with videotaping equipment. According to the

       detectives, the door to the room was unlocked, although neither detective recalled anyone telling

       Clayton she was free to leave. Clayton remained there from about 11 p.m. until the conclusion

       of the second interview at 4:15 a.m. After bringing her into the station, one to two hours passed

       before the detectives interviewed Clayton. She was not given Miranda warnings before the first

       interview. The State did not elicit any testimony regarding the substance of the first interview,

       how long it lasted, or what Clayton's demeanor was during the interview.

¶ 13          According to Arvin, after the first unrecorded interview concluded, Clayton was taken to

       a second interview room, where the recorded interview began at 3:55 a.m.             Although the

       detectives testified Clayton was still not a suspect in the shootings, Clayton was given Miranda

       warnings before the second interview.

¶ 14          Clayton's mother and father testified at the suppression hearing that on the night of

       March 6, 2008, the detectives came to their home and asked for Clayton. According to Clayton's

       parents, at least four police officers showed up, with weapons. Both testified that detectives told

       Clayton that she had to go with them to the police station and handcuffed her sometime after

       they allowed Clayton to get her jacket from another part of the home. There was no evidence

       that police offered Clayton's parents the opportunity to accompany her to the station or to be

       present for her interviews. Clayton's testimony at the suppression hearing about the events of

       March 6, 2008 corroborated the testimony of her parents, including that she was handcuffed and




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       taken to the police station for questioning about the shootings.    Clayton testified that both the

       first and second interviews were conducted in the same interview room.

¶ 15          The State's position at trial and during the suppression hearing was that Clayton was not

       subjected to a custodial interrogation at the time of either the first (unrecorded) or second

       (recorded) interview during the early morning hours of March 7, and therefore, there was no

       requirement that those interviews be recorded. The State did not submit any evidence regarding

       the second and third interviews or the voluntariness or reliability of any of the statements made

       during any of the interviews.

¶ 16          Following the close of the evidence at the suppression hearing, the trial court found that

       the first interview was custodial and should have been videotaped. The trial court found that

       taking a 17-year-old from her home at 11 p.m. at night without her parents and questioning her in

       an interview room at the station and not at her home supported a finding that Clayton was in

       custody. As to whether Clayton was handcuffed, the court found that she was not handcuffed

       when the detectives first arrived at her home because she was allowed to retrieve her jacket. But

       the court found that, given the conflicting testimony and the lack of any contemporaneous

       reports, it was impossible to determine when she was handcuffed or whether she was later

       handcuffed at all. The trial court noted that despite directing the State to produce the notes from

       the first interview, the State failed to produce notes or any record of what occurred during that

       interview.   As to whether the officers asked Clayton questions during the first interview that

       were reasonably likely to elicit an incriminating response, the trial court found it was likely that

       Clayton made some incriminating statements given the officers' decision to give her Miranda

       warnings and videotape the second interview. The trial court granted Clayton's motion to

       suppress the videotapes for violation of section 103-2.1.


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¶ 17          Following the ruling, the State filed a motion to reconsider. The State repeated its

       argument that Clayton was not in custody during the March 7 interviews. The State also argued,

       for the first time, that the videotaped statements should be admitted under section 103-2.1(f),

       which provides that "[t]he presumption of inadmissibility of a statement made by a suspect at a

       custodial interrogation" may be "overcome by a preponderance of the evidence that the statement

       was voluntarily given and is reliable." 725 ILCS 5/103-2.1(f) (West 2012). The State did not

       present evidence as to the voluntary nature or the reliability of any of the statements made during

       the interviews.

¶ 18          In denying the State's motion to reconsider, the trial court emphasized that a 17-year-old

       was taken by police from her home without her parents late at night and remained at the police

       station for at least 4½ hours without sleep and without a lawyer, that Clayton was on a list of

       "suspects" before the police went to her home, and that the police have no notes or record of

       what happened between 11 p.m. and 3:55 a.m. Thus, the trial court determined that Clayton was

       in custody during the first and second interviews and the State failed to meet its burden to show

       that the first statement was voluntary and reliable by a preponderance of the evidence.

¶ 19          Clayton's trial was stayed pending the State's appeal to this court. For the reasons that

       follow, we affirm the trial court's order suppressing Clayton's statements.

¶ 20                                              ANALYSIS

¶ 21          The State contends the trial court's finding that Clayton was subjected to custodial

       interrogation during the first interview is against the manifest weight of the evidence, thus

       rendering section 103-2.1 inapplicable. The State also maintains it proved by a preponderance of

       the evidence that the videotaped statements were given voluntarily and thus, it overcame the

       presumption of inadmissibility of the statements under section 103-2.1(f).


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¶ 22          On review of a trial court's ruling on a motion to suppress, we afford great deference to

       the trial court's credibility determinations and factual findings, and we will not disturb those

       findings unless they are against the manifest weight of the evidence. People v. Slater, 228 Ill. 2d

       137, 149 (2008). A judgment is against the manifest weight of the evidence only when an

       opposite conclusion is apparent or when findings appear to be unreasonable, arbitrary, or not

       based on evidence. People v. Lopez, 2013 IL App (1st) 111819, ¶ 17. We review de novo the

       ultimate question of whether the motion to suppress evidence should have been granted. Id. In

       arriving at our decision, “it is proper for us to consider the testimony adduced at trial, as well as

       at the suppression hearing.” Slater, 228 Ill. 2d at 149.

¶ 23          Under section 103-2.1 of the Code, police must make an accurate electronic recording of

       any interrogation that occurs as part of a murder investigation, and if the State subjects a murder

       defendant to an unrecorded custodial interrogation, “then any statements made by the defendant

       during or following that nonrecorded custodial interrogation, even if otherwise in compliance

       with this Section, are presumed to be inadmissible.” 725 ILCS 5/103-2.1(d) (West 2012).

       Further, pursuant to section 103-2.1(f), “[t]he presumption of inadmissibility of a statement made

       by a suspect at a custodial interrogation at a police station or other place of detention may be

       overcome by a preponderance of the evidence that the statement was voluntarily given and is

       reliable, based on the totality of the circumstances.” 725 ILCS 5/103-2.1(f) (West 2012).

¶ 24                            A. Whether Clayton's First Interview Was Custodial

¶ 25          The State first argues that Clayton voluntarily cooperated and spoke to police as a witness

       at the time of her first interview. Therefore, the State maintains, the first statement was not the

       product of a custodial interrogation and, thus, the mandatory recording requirement of section

       103-2.1 did not apply.


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¶ 26           Under section 103-2.1(a), a custodial interrogation is defined as any interrogation during

       which (i) a reasonable person in the subject's position would consider himself or herself to be in

       custody and (ii) a question is asked that is reasonably likely to elicit an incriminating response.

       725 ILCS 5/103-2.1(a) (West 2012). Section 103-2.1(a) thereby codifies “the common-law

       definition of custodial interrogation developed in Miranda and [its] progeny.” People v. Harris,

       2012 IL App (1st) 100678, ¶ 52.

¶ 27              Factors relevant to the inquiry into whether an individual was in custody include: (1) the

       location, time, length, mood, and mode of the questioning; (2) the number of police officers

       present during the interrogation; (3) the presence or absence of family and friends of the

       individual; (4) any indicia of a formal arrest procedure, such as the show of weapons or force,

       physical restraint, booking or fingerprinting; (5) the manner by which the individual arrived at

       the place of questioning; and (6) the age, intelligence, and mental makeup of the accused. Slater,

       228 Ill. 2d at 150. After examining and weighing these factors, the trial court must make an

       objective determination as to whether, under the facts presented, “a reasonable person, innocent

       of any crime” would have believed that she could terminate the encounter and was free to leave.

       Id. (citing People v. Braggs, 209 Ill. 2d 492, 506 (2003), and People v. Fair, 159 Ill.2d 51, 66–67

       (1994)).

¶ 28           Applying the above factors to the evidence adduced at trial and at the suppression

       hearing, and giving due deference to the trial court's resolution of factual questions in light of its

       ability to observe first-hand the witnesses' credibility and demeanor, we find that virtually every

       relevant factor supports the trial court's finding that Clayton was in custody at the time of the

       first interview.




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¶ 29          First considering the manner by which Clayton arrived at the police station (Slater, 228

       Ill. 2d at 150), Clayton's visit to the station was not initiated by her, nor was she given the option

       to be questioned at her home or to report to the police station at a later time, although the State

       maintains that she was, at least at the time of her first interview, merely a witness. It is

       undisputed that Clayton was taken from her home at 11 p.m. and was asked to accompany the

       officers to the police station at a time specified by them, i.e., immediately.

¶ 30          Clayton was also not afforded the opportunity to travel to the station with her parents or a

       family member.      Instead, Clayton was transported to the police station by two officers in an

       unmarked police vehicle. The detectives told Clayton's parents they would give her a ride home,

       although they later failed to do so. Thus, Clayton did not have a means to get home on her own

       and was ultimately required to call someone for a ride home after the interviews ended near

       dawn the next day. Thus, the manner in which Clayton arrived at the police station supports the

       finding that she was in custody. See Slater, 228 Ill. 2d at 154. ("Defendant's voluntary arrival at

       the [place of interrogation] by means of her own transportation is distinguishable from a situation

       in which a defendant is transported to and from the place of interrogation by law enforcement

       officers and has no other means of egress from that location.").

¶ 31          We also consider the number of police officers present, as well as the location, time,

       length, mood and mode of questioning. First, it is uncontroverted that at least four police

       officers arrived at Clayton's home. The number of officers present raises serious doubt regarding

       the State's contention that when police first arrived at her home, they considered Clayton to be

       merely a witness. Additional questions regarding Clayton's status as a witness are raised by the

       failure of police to question Clayton in her home, despite the acknowledgement that witnesses

       are usually questioned either in their homes or in the vicinity of the crime, not at a police station.


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       Questioning conducted at a police station, particularly when a witness is not informed that he or

       she is free to leave and when the witness must rely on the police for transportation, presents a

       more intimidating and adversarial environment. Slater, 228 Ill. 2d at 156.

¶ 32          The time of the interview also supports the finding that Clayton was in custody. It is

       uncontroverted that Clayton was picked up from her home late at night and was detained at the

       police station for more than five hours. The fact that Clayton was held at the police station

       overnight belies the State's assertion that she was not in custody.

¶ 33          The State presented no evidence regarding the mood and mode of questioning during the

       first interview. Indeed, the State presented no evidence at all regarding what questions Clayton

       was asked and what answers she gave during the first interview. Thus, this factor could not

       possibly weigh in favor of a finding that Clayton was not in custody during that interview.

¶ 34          While there is no evidence that there was a formal arrest procedure such as booking or

       fingerprinting, the trial court's finding that it could not determine whether Clayton was

       handcuffed (after she was permitted to retrieve her jacket) because of the lack of a record as to

       the circumstances under which Clayton was taken to the police station is manifestly correct.

       Given the failure of the police to document in any way their initial encounter with Clayton, this

       factor is, at most, neutral. Even if Clayton was not handcuffed at all, the determination that she

       was in custody is supported by other facts in evidence. As we have noted, the time of the

       officers' arrival at Clayton's home, the number of officers present and the fact that Clayton was

       transported to the police station in a police vehicle all support the custodial nature of the

       interrogation. Further, although the room where the questioning was held was unlocked, Clayton

       was never told she was free to leave, even as the hours passed overnight.




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¶ 35           Finally, the remaining factors also weigh in favor of finding that Clayton was in custody

       at the time of the first interview. The record indicates that Clayton was taken from her parent's

       home, her parents did not accompany her to the station, and Clayton was alone at the police

       station overnight. People v. Vasquez, 393 Ill. App. 3d 185, 190 (2009) (police asking defendant's

       parents to leave the defendant's hospital room so that they could question the defendant was a

       factor suggesting that the defendant was in custody). Moreover, although Clayton was a high

       school graduate, the fact that Clayton was a 17-year-old who still lived at home is a relevant

       consideration, as her age would impact her perception of the custodial nature of the interrogation.

       The State introduced no evidence that anything in Clayton's background and, in particular, any

       experience she might have had with the criminal justice system, could have offset her perception

       that she was obligated to accompany the police to the station and answer any questions posed to

       her.

¶ 36          The record also supports the trial court's finding that the "suspects" list, which included

       Clayton's name, was generated before the police officers went to Clayton's home. The State

       challenges the finding that Clayton was on the "suspects" list and insists she was merely a

       witness at the time of the first interview. But whether Clayton was, in fact, a suspect in the

       investigation does not impact our determination as to whether the interrogation was custodial.

       Slater, 228 Ill. 2d at 153 (a police officer's subjective view that the individual under questioning

       is a suspect, if undisclosed, does not bear upon the question of whether the individual is in

       custody for purposes of Miranda); Stansbury v. California, 511 U.S. 318, 324 (1994).

¶ 37          Conversely, the State's position that Clayton was considered merely a "witness" by police

       does not affect the objective circumstances of an interrogation, and thus does not affect the

       custody inquiry.    Stansbury, 511 U.S. at 323 ("Our decisions make clear that the initial

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       determination of custody depends on the objective circumstances of the interrogation, not on the

       subjective views harbored by either the interrogating officers or the person being questioned.").

       Even if the police officers disclosed to Clayton that she was a witness during the first interview

       (and the record contains no evidence to this effect), such disclosure would be relevant only to the

       extent it would affect whether a reasonable person in Clayton's position would feel free to leave.

       Here, the evidence supports the conclusion that a reasonable person in Clayton's position would

       not have felt free to leave the police station.

¶ 38           Contrary to the State's position, Clayton's stay at the station was not a brief, nonintrusive

       encounter with police. After arriving at the station, Clayton was placed in a room to wait for one

       to two hours before she was first interviewed by two detectives. Before the second interview

       began at 3:55 a.m., Clayton was at the station nearly five hours and, during that period, no one

       told her she was free to leave. During the second interview, Clayton was not informed that the

       police considered her a witness, rather than a suspect. It was not until after the second interview

       concluded –at approximately 4:15 a.m. –that officers made it clear that Clayton was free to leave

       the station by bringing her to the station's lobby.

¶ 39           No single factor is dispositive, and in each case we consider all of the circumstances

       surrounding the questioning to determine whether it was custodial. People v. Daniel, 238 Ill.

       App. 3d 19, 30-31 (1992). That Clayton was taken to the police station late at night and

       questioned overnight are two "among many factors that bear upon the assessment whether that

       individual was in custody, and not the sole determinant of that issue." (Internal quotation marks

       omitted.) Slater, 228 Ill. 2d at 153. Here, examining and weighing all the various factors, and

       not a single factor alone, we find that a reasonable person, innocent of any crime, would not have

       believed that he or she could terminate the encounter or was free to leave.


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¶ 40          The State maintains that the trial court "made no reference" to defendant's "explicit

       statement that she voluntarily accompanied the detectives to the police station."         For this

       proposition, the State points to the videotaped recording of the second interview.

¶ 41          We cannot say that the State's argument that the videotape of the second interview shows

       that Clayton was a cooperating witness is supported by the evidence. As we note above, Clayton

       was asked to affirm that she accompanied officers to the station "voluntarily" and "of her own

       free will." We would hardly expect a teenager to argue the point with police. Further, there is

       no record of what actually occurred during the first interview, and even if Clayton voluntarily

       accompanied officers to the police station, there is no record of what transpired between the time

       Clayton arrived at the station and the second interview nearly five hours later. If anything, the

       fact that Clayton was apparently left alone in an interview room for several hours in between

       interviews and then questioned again regarding the events of March 6 would point to a more,

       rather than less, coercive atmosphere. Thus, Clayton's statement in the videotape that she went

       to the station of her own volition bears little relevance to the custodial nature of her second

       interview.

¶ 42          We are also unpersuaded by the State's argument that the trial court based its decision

       primarily on the fact that the detectives did not have notes from the first interview, instead of

       analyzing the "totality of the circumstances" to determine if there was a custodial interrogation.

       The findings of fact made by the trial court are clearly supported by the evidence adduced at trial

       and the suppression hearing. The court considered not only that it could not determine what

       occurred during the first interview because of the failure of the State to produce the notes from

       the interview, but it also expressly considered the remaining relevant factors. The record amply




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       supports the trial court's determination that Clayton was in custody during both her first and

       second interviews.

¶ 43          With respect to the second issue regarding the custodial nature of the interrogation –

       whether Clayton was asked questions during the first interview that were reasonably likely to

       elicit an incriminating response –the trial court reasonably inferred that the responses Clayton

       gave to the questions at least led the detectives to record the second interview and give her

       Miranda warnings. Indeed, Arvin testified that he was instructed by a superior to give Clayton

       Miranda warnings before the second interview, a fact that supports the inference that something

       Clayton said during the first interview caused the superior to conclude she should be advised of

       her constitutional rights. The State introduced no evidence to rebut that reasonable inference,

       particularly given that there is no record of what occurred during the first interview. Further, the

       videotape of the second interview shows that detectives alluded to her earlier statements and

       asked Clayton why her story was not consistent with the one she gave earlier. This likewise

       supports a finding that Clayton was likely asked questions designed to elicit incriminating

       statements during the first interview.

¶ 44          Based on the factors examined and weighed above, and the well-supported findings of

       fact made by the trial court, we conclude that Clayton was subjected to a custodial interrogation

       as defined by section 103-2.1(a) during her first, unrecorded interview with police. 725 ILCS

       5/103-2.1(a) (West 2012).

¶ 45          Under section 103-2.1(d), if the court finds, by a preponderance of the evidence, that

       Clayton was subjected to a custodial interrogation in violation of section 103-2.1(b), then any

       statements made by Clayton during or following that unrecorded custodial interrogation are

       presumed inadmissible. 725 ILCS 5/103-2.1(d) (West 2012). Given that the trial court correctly


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       found by a preponderance of the evidence that Clayton's statements during the first interview

       were made as a result of a custodial interrogation, section 103-2.1 applied and the police violated

       section 103-2.1(b) by failing to record Clayton's first interview. Therefore, the videotapes of

       Clayton's statements during the second and third interviews are presumed inadmissible.

¶ 46                   B. Whether the State Overcame the Presumption of Inadmissibility

¶ 47           The State argues that the trial court erred in suppressing the videotapes of the second and

       third interviews because any presumption of inadmissibility was overcome by a preponderance

       of the evidence that the statements were given freely and voluntarily. But the State failed to

       adduce any evidence, other than the videotapes themselves, that the statements made during the

       second and third interviews were (1) voluntarily given and (2) reliable. The State first argues

       that the failure to record Clayton's first interview was "inadvertent." This argument, advanced

       for the first time on appeal, directly contradicts the position the State took in the trial court, i.e.,

       that the detectives' failure to record the first interview was based on their belief that Clayton was

       merely a witness. Having taken that position, we cannot allow the State to recharacterize the

       detectives' conduct on appeal.

¶ 48           Moreover, the State never attempted to sustain its burden to demonstrate the

       voluntariness of Clayton's statements at the trial court. During the suppression hearing, the

       State's sole contention was that section 103-2.1(b) did not apply because Clayton was not subject

       to a custodial interrogation. The evidence presented by the State at the suppression hearing

       related only to the factors relevant to the inquiry as to whether the first unrecorded interview was

       custodial, but no evidence was presented about the voluntariness of the statements made during

       the recorded interviews.




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¶ 49          The preliminary inquiry into the voluntary nature of a confession is for the trial court.

       People v. Melock, 149 Ill. 2d 423, 462 (1992). Here, the trial court never had the opportunity to

       consider the voluntary nature of the statements made during any of Clayton's interviews because

       the State elected to present no evidence on the issue. Apart from failing to present evidence on

       the topic, the State never even argued during the suppression hearing that the videotaped

       statements were given voluntarily. In fact, it was not until its motion for reconsideration that the

       State even raised section 103-2.1(f) and the possibility that the presumption of inadmissibility of

       the statements could be overcome. 725 ILCS 5/103-2.1(f) (West 2012). Even then, the State did

       not present any evidence or argue that the recorded statements were voluntarily given. Instead,

       the State argued only that the first unrecorded statement was given voluntarily, an argument the

       trial court properly rejected. Therefore, the State failed to meets its burden to prove by a

       preponderance of the evidence that the statements given during any of Clayton's interviews were

       voluntary and reliable.

¶ 50          While the State criticizes Clayton for failing to raise any challenge to the voluntariness of

       the second and third statements (which we believe is a mischaracterization of the record), it is the

       State under section 103-2.1(f) that must overcome the presumed inadmissibility of these

       statements by establishing by a preponderance of the evidence that the statements were voluntary

       and reliable. In other words, once the trial court found the violation of section 103-2.1(b), unless

       and until the State satisfied its burden to show that the statements were nevertheless voluntary,

       they could not be used. Clayton was under no obligation to claim, much less prove, that the later

       statements were involuntary and because the State adduced absolutely no evidence on the

       voluntariness issue, it failed to meet its burden of proof and the motion to suppress was properly

       granted.


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¶ 51          The State's additional argument that section 103-2.1 is inapplicable because it did not

       seek to admit the substance of Clayton's first interview (an impossibility given the lack of any

       record of the interview) is a transparent attempt to circumvent the requirements of the statute.

       Under the State's view, police could presumably use whatever coercive tactics and ask any

       questions designed to elicit incriminating evidence they choose to in an unrecorded interview

       and, as long as the State did not attempt to use the statements made, the violation of the statute

       would be without consequence. But this ignores the statute's plain language. See Harris, 2012

       IL App (1st) 100678, ¶ 51 ("The only fair reading of the statute is that the legislature's clear

       intent was to ensure that statements related to murder investigations were not a result of the

       coercive pressures of custodial interrogation in a police facility but, rather, were both voluntary

       and reliable. See 725 ILCS 5/103-2.1(f) (West 2008)"). In an effort to eliminate the precise type

       of problems encountered in this case—an unrecorded interview of a suspect in a homicide

       investigation—the legislature mandated that such interviews be recorded and specified

       consequences when they are not. Having introduced no evidence regarding the "voluntary"

       nature of the first interview or the contents of that interview and in light of the trial court's

       factually supported finding that Clayton was in custody during the first interview, the order

       suppressing the second and third interviews was the only result contemplated by the statute.

¶ 52          Whether the only evidence presented for the voluntariness inquiry—the videotapes—

       shows that the statements were voluntarily made is a question of fact for the trial court. "While

       we review the legal issue of voluntariness de novo, the foundation of that determination is a

       factual one which the trial court has the exclusive task of considering. [Citations]." Harris, 2012

       IL App (1st) 100678, ¶ 65. As noted above, the trial court had no chance to make such

       determination because the State never argued or even attempted to overcome the presumption of


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       inadmissibility. Simply put, that issue was never fully addressed because the State failed to

       present it to the trial court. Additionally, whether a statement was reliable is a separate inquiry

       from whether it was voluntary. See 725 ILCS 5/103-2.1(f) (West 2012); Harris, 2012 IL App

       (1st) 100678, ¶ 66. The State never argued that the statements were reliable.

¶ 53          Although the State had multiple opportunities to present the argument (and evidence) that

       the statements given during the interviews were voluntary and reliable, the State failed to do so.

       At a minimum, the State failed to meet its burden to prove by a preponderance of the evidence

       that the recorded statements were given voluntarily, and on this record, by failing to argue that

       the statements were given voluntarily and are reliable, the State has forfeited this argument on

       review. See People v. Adams, 131 Ill. 2d 387, 396 (1989).

¶ 54                                              CONCLUSION

¶ 55          We hold that the trial court's finding that Clayton was in custody under section 103-2.1(b)

       during the unrecorded first interview is not against the manifest weight of the evidence.

       Therefore, any statements which were made after the unrecorded interview were presumed

       inadmissible. 725 ILCS 5/103-2.1(d) (West 2012). Because the State failed to adduce any

       evidence sufficient to sustain its burden to prove that the later statements were voluntary and

       reliable, they were properly suppressed.

¶ 56          Affirmed.




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