                                         2016 IL App (3d) 140124

                                       Opinion filed March 23, 2016


                                                  IN THE

                                   APPELLATE COURT OF ILLINOIS

                                            THIRD DISTRICT

                                                A.D., 2016


     THE PEOPLE OF THE STATE OF                   )       Appeal from the Circuit Court
     ILLINOIS,                                    )       of the 10th Judicial Circuit,
                                                  )       Peoria County, Illinois.
            Plaintiff-Appellee,                   )
                                                  )
                    v.                            )       Appeal No. 3-14-0124
                                                  )       Circuit No. 10-CF-719
     KEITH LITTLE,                                )
                                                  )       Honorable Stephen Kouri
            Defendant-Appellant.                  )       Judge, Presiding.


            JUSTICE WRIGHT delivered the judgment of the court, with opinion.
            Justices Carter and Holdridge concurred in the judgment and opinion.


                                                OPINION

¶1          Defendant filed a “Motion in Limine/Motion to Suppress Statements” on the grounds that

     all of defendant’s self-incriminating statements should be presumed inadmissible as evidence

     because the homicide detectives did not strictly comply with the requirements for electronically

     recording his custodial interrogation as required by section 103-2.1 of the Code of Criminal

     Procedure of 1963 (Code) (725 ILCS 5/103-2.1 (West 2010)). In addition, the motion to

     suppress requested suppression of defendant’s statements due to a violation of his Miranda

     rights. Miranda v. Arizona, 384 U.S. 436 (1966). A jury found defendant guilty of murder and

     the court sentenced defendant to serve 75 years in prison.
¶2          On appeal, defendant challenges the trial court’s decision to admit the videotaped portion

     of his custodial interrogation by homicide detectives and his sentence.

¶3          We reverse and remand.

¶4                                            BACKGROUND

¶5          On May 3, 2010, defendant was a passenger in a PT Cruiser that Marcus Alexander was

     driving at the time of a crash. Officer Corey Miller was near the site of the crash and observed

     defendant and the driver flee from the PT cruiser. Officer Miller unsuccessfully attempted to

     catch defendant during a foot chase but, after losing sight of defendant, the officer discovered a

     discarded revolver in a front yard of a residence in the vicinity where defendant had been

     running. Meanwhile, Officer Marilyn Robinson successfully apprehended defendant as he was

     running out of bushes approximately three blocks from where Officer Miller recovered the gun.

     Defendant admitted to Officer Miller that he personally discarded a revolver as he fled from the

     officer that day. Defendant was charged with the criminal offense of aggravated unlawful use of

     a weapon (AUUW) (720 ILCS 5/24-1.6(a)(1) (West 2010)) in case No. 10-CF-423. Defendant’s

     jury trial for the AUUW charge was scheduled for Monday, July 19, 2010.

¶6          On Wednesday, July 14, 2010, the State crime lab completed ballistic testing on the gun

     recovered by Officer Miller on May 3, 2010. According to this ballistic report, the gun was the

     same weapon that was previously used to murder a convenience store owner, Abdallah Kattoum

     (victim), on March 30, 2010.

¶7          On July 16, 2010, defendant was transported from the Peoria County jail to the Peoria

     police department where two homicide detectives, Aaron Watkins and Keith McDaniel, jointly

     interviewed defendant. Defendant made several incriminating statements and, on July 19, 2010,

     the State charged defendant with first degree murder (720 ILCS 5/9-1(a)(3) (West 2010)) in case

     No. 10-CF-719.

                                                      2
¶8                                           I. Pretrial Proceedings

¶9            On March 1, 2013, defendant filed a “Motion in Limine/Motion to Suppress Statements”

       (2013 motion to suppress). The 2013 motion to suppress asked that all statements relevant to the

       murder prosecution be suppressed pursuant to section 103-2.1 of the Code (725 ILCS 5/103-2.1

       (West 2010)) because defendant was subjected to a custodial interrogation as part of a homicide

       prosecution and the initial custodial interrogation was not properly electronically recorded. In

       addition, the 2013 motion to suppress requested suppression of defendant’s statements in both

       cases due to a violation of his Miranda rights.

¶ 10          The hearing on the 2013 motion to suppress began on June 20, 2013. Judge Kouri, the

       trial judge, considered the transcripts from a previous motion hearing in the murder case that was

       conducted before Judge Lucas in 2012. 1 The transcripts from the 2012 motion to suppress

       hearing are summarized below.

¶ 11          Officer Kris Kampas testified at the 2012 motion to suppress hearing that he transported

       defendant from the Peoria County jail to the Peoria police station at 3:50 p.m. on July 16, 2010,

       at Watkins’ request. Officer Kampas later transported defendant back to the Peoria County jail

       from the Peoria police station at 8:25 p.m. on the same day. According to the officer, it was a

       10-minute drive from the Peoria County jail to the Peoria police station.

¶ 12          Detective McDaniel testified that he and Watkins were assigned to investigate the murder

       of the victim that took place on March 30, 2010. After a few days, all leads dried up and the case

       became a cold case until Watkins contacted McDaniel around 5:20 p.m. on July 16, 2010, after

       receiving the ballistics report, and requested McDaniel to assist Watkins with an interview.

              1
                On February 23, 2012, defendant filed a motion to suppress the statements he made to
       the detectives on July 16, 2010. On June 28, 2012, Judge Lucas received the sworn testimony of
       Officer Kris Kampas, Detective McDaniel, Detective Watkins, and defendant. On December 3,
       2012, Judge Lucas entered a written order denying the 2012 motion to suppress. This ruling is
       not at issue on appeal.
                                                       3
       McDaniel arrived at the police station at approximately 5:30 p.m. on July 16, 2010. Watkins

       first updated McDaniel on the details surrounding defendant’s arrest for AUUW on May 3, 2010.

       Watkins told McDaniel that defendant and another person “got stopped after a high speed chase

       and that the gun was in the car.” Watkins explained to McDaniel that defendant was

       incarcerated in the Peoria County jail due to the gun case. Watkins did not tell McDaniel that

       Watkins had spoken to defendant before McDaniel arrived at the police station on July 16, 2010.

¶ 13          According to McDaniel, at 6 p.m. on July 16, 2010, Watkins took McDaniel into the

       interrogation room and introduced McDaniel to defendant. McDaniel agreed that defendant was

       in custody at the time they spoke to defendant, but they did not record the interview and did not

       Mirandize defendant. McDaniel explained, “[A]t that point in time Mr. Little was not a suspect

       in this case [the murder case] and we weren’t required to video at that time.” McDaniel testified,

       “[W]e were under the impression or from prior experience that because you are in mere

       possession of a gun that is involved in a murder, you are not a suspect in the case.” McDaniel

       stated, “Questioning is asking mere questions. An interrogation, I believe, is accusing him of

       something.” McDaniel clarified, “Asking a question would be, do you have knowledge of the

       murder? An interrogation would be, we know you were there, tell us what was going on.”

¶ 14          McDaniel and Watkins told defendant they “wanted to talk to him about a key piece of

       evidence that he was arrested for.” McDaniel testified at the 2012 hearing, “After Mr. Little said

       he didn’t know anything about the homicide, I believe that’s when I came in and started talking

       about the severity of the case and his importance of his cooperation in this case.” According to

       McDaniel, this discussion lasted for 7 to 10 minutes before defendant admitted he had some

       knowledge about the homicide, but defendant said he was afraid to say anything because the

       murder involved a family member.



                                                       4
¶ 15           After defendant told the detectives about his cousin, Marcus Alexander, McDaniel said

       he directly asked defendant if defendant witnessed the murder, stating, “That’s important. That

       goes to credibility and things that we could use when we talk with Marcus.” Defendant

       affirmatively responded that he was present at the Peoria Food Mart at the time of the murder.

       McDaniel testified, “After he told us that he was present in the store and that his cousin was

       involved, yes, he was deemed a suspect at that time.”

¶ 16           However, McDaniel stated the detectives spoke with defendant for another 5 to 10

       minutes before suspending the questioning to move defendant to a different interrogation room

       where defendant smoked a cigarette. The detectives also ordered some food for defendant.

¶ 17           At approximately 6:35 p.m., the detectives returned defendant to the first interrogation

       room where the video recording equipment was activated. As defendant was eating the food

       provided by the detectives, Watkins provided defendant with his initial Miranda warnings.

       Defendant then gave a detailed statement of what occurred at the Peoria Food Mart on March 30,

       2010.

¶ 18           Detective Watkins testified that he was new to the detective bureau. When he was

       assigned to investigate the victim’s murder on March 30, 2010, McDaniel provided some

       guidance and “was walking [Watkins] through the process of investigating that type of case.”

¶ 19           Watkins advised the court that Sergeant Boddie notified Watkins, on July 14, 2010, that

       there had been a “hit” on a murder case from March 30, 2010. Watkins learned that a gun

       recovered from defendant on May 3, 2010, was determined to be the murder weapon used on

       March 30, 2010. Consequently, Watkins made arrangements to interview defendant on July 16,

       2010, and contacted McDaniel.




                                                        5
¶ 20          On July 16, 2010, Watkins said he waited for defendant to arrive at the police station and,

       once he arrived, Watkins said he and McDaniel both talked to defendant at the same time.

       Watkins denied talking with defendant before McDaniel arrived at the police station.

¶ 21          According to Watkins, the unrecorded segment of the interview with defendant began at

       6 p.m. Watkins said the detectives were just trying to determine if the gun “changed hands”

       during those 30 days between the date of the murder and the date of defendant’s AUUW arrest.

       Watkins said the first interview with defendant lasted about 5 to 10 minutes until defendant

       admitted he was present during the murder on March 30, 2010. Watkins said the videotaped

       segment of the interview began at 6:35 p.m.

¶ 22          Finally, defendant testified, for purposes of the 2012 motion to suppress, that he was 18

       years old on July 16, 2010. At that time, defendant said he was in custody at the Peoria County

       jail because he could not post bail to be released on his AUUW charges. On July 16, 2010,

       defendant said someone from the jail staff came to his “pod” in the jail and escorted him to the

       front office where Officer Kampas was waiting. According to defendant, Officer Kampas

       handcuffed defendant at the jail and transported him directly to the Peoria police station. At the

       police station, Officer Kampas took defendant to a room and left him in the handcuffs for 5 or 10

       minutes until Watkins came into the room and removed defendant’s handcuffs.

¶ 23          Defendant testified that, other than the time he was arrested for the AUUW charge in

       May of 2010, he had never been questioned by police officers in an interrogation room.

       Defendant testified that he asked to speak to his lawyer and his father. In response, Watkins told

       defendant he was going to be questioned as a witness and it was not necessary for defendant to

       speak to either his lawyer or his father at that point in time.

¶ 24          Defendant said Watkins spoke to him alone for “close to an hour.” During this time,

       Watkins raised his voice and used profanity. Watkins asked defendant if he knew Deangelo

                                                          6
       Lindsey, and told defendant that “Deangelo Lindsey had an armed robbery and a murder on a

       store clerk” and he got “somewhere around 50 years or something like that.”

¶ 25          Watkins told defendant if he did not implicate himself in this murder case, Watkins was

       going to talk to the State’s Attorney and told defendant he could “get the electric chair for being

       in possession of the gun” because defendant was the only link to that gun and the murder.

       Defendant said he believed Watkins, so defendant “just started making up a story about the

       crime.” Defendant stated he made up the story about Alexander committing the murder because

       Watkins said he knew Alexander was with defendant when defendant was arrested for the gun

       charges on May 3, 2010.

¶ 26          At some point Watkins left the room, but returned with Detective McDaniel about 10

       minutes later. Watkins introduced McDaniel to defendant and told defendant to tell the story

       again in front of McDaniel. According to defendant, the interview with both detectives in the

       room lasted about 45 minutes to an hour. After defendant told the story to McDaniel in Watkins’

       presence, the detectives stopped the interview and left the room. Defendant requested a cigarette

       and the detectives took him to a different room where he smoked his cigarette. According to

       defendant, after smoking his cigarette, the detectives brought him back to the original room

       where the detectives read defendant his Miranda rights. Defendant then repeated the fictitious

       story about witnessing Alexander commit the murder.

¶ 27          In addition to considering the transcripts of the testimony from the 2012 motion to

       suppress hearing, as summarized above, the trial court also received the testimony of Watkins,

       McDaniel, and defendant during the 2013 motion to suppress hearing. The detectives’ testimony

       during the hearing on the 2013 motion to suppress was substantially similar to the testimony

       contained in the transcript of the 2012 motion hearing.



                                                        7
¶ 28            However, during the 2013 motion to suppress hearing, Watkins also testified to the

       details of the general partial descriptions, that he and other police officers received from two

       witnesses on March 30, 2010, of two suspicious black individuals who were in the store just

       prior to the shooting, and who ran from the store after shots were fired. These descriptions did

       not rule out defendant as one of the two men in the store.

¶ 29            In addition, during this 2013 motion to suppress hearing, McDaniel added that he was

       also aware of the witnesses’ descriptions of the two black men in the store just prior to the

       shooting. Although the detectives did not consider defendant a suspect, McDaniel agreed with

       the question that defendant was a “person of interest with regard to this homicide investigation”

       when they interviewed defendant on July 16, 2010.

¶ 30            Defendant’s testimony was also consistent with his testimony from the 2012 motion to

       suppress hearing. For purposes of the 2013 hearing, defendant described his conversation with

       Watkins before McDaniel entered the interrogation room. Defendant said Watkins said if

       defendant told him what happened, “the State would just frown on me for being there for an

       armed robbery, but they really just need me to point the finger at the murderer.”

¶ 31            The trial court took the matter under advisement on October 10, 2013. On October 14,

       2013, the court granted the 2013 motion to suppress regarding statements “up until the point

       Miranda was read to defendant.” However, the court found there was “enough disconnect”

       between the statement given before Miranda warnings and the statement given after the Miranda

       warnings to distinguish defendant’s case from the holding in Missouri v. Seibert, 542 U.S. 600

       (2004). The order provided, “State can use any statement made after Miranda warning is read.”

       The court did not address or make any findings pertaining to the videotaping issues raised in the

       2013 motion to suppress pursuant to section 103-2.1 of the Code. 725 ILCS 5/103-2.1 (West

       2010).

                                                        8
¶ 32                                               II. Jury Trial

¶ 33          The jury trial for defendant’s charge of first degree murder, case No. 10-CF-719, started

       on October 15, 2013, and concluded on October 17, 2013. 2 The evidence established Peoria

       police officer Derek Harwood responded to a silent alarm at the Peoria Food Mart on March 30,

       2010. Harwood first spoke to two individuals in front of the store and then entered the store

       where he found the store owner dead on the floor behind the cash register counter. Harwood

       stated he drove past the store approximately 15 minutes earlier and observed the victim alive and

       standing right inside the doorway of the store.

¶ 34          Peoria police officer Corey Miller testified to the circumstances leading to defendant’s

       arrest for AUUW on May 3, 2010. According to Officer Miller, defendant told him that he was a

       passenger in a car being driven by Marcus Alexander. When the car crashed, defendant fled on

       foot and admitted discarding the revolver, later determined to be the murder weapon, as he was

       running away from Officer Miller on May 3, 2010.

¶ 35          Dustin Johnson stated he worked at the Morton Forensic Science Laboratory as a forensic

       scientist. On May 5, 2010, Johnson received a gun from the Peoria police department. Around

       July 15, 2010, Johnson “test-fired” the gun to do ballistics testing on the bullet fired from that

       gun. Johnson compared that bullet to those recovered as evidence in unsolved shooting cases

       from the area. Johnson testified he positively identified the test-fired cartridge from defendant’s

       gun to the bullet recovered from the unsolved murder of the victim, Kattoum. Johnson sent a

       report to the Peoria police officers informing them of his findings.

¶ 36          Over the defense’s continuing objection, the court allowed the State to introduce

       defendant’s videotaped statement, recorded on July 16, 2010, for the jury’s consideration.

              2
               Since the only issues on appeal relate to the court’s rulings on defendant’s 2013 motion
       to suppress statements, a condensed version of the evidence presented during the jury trial is
       included in this decision.
                                                        9
       Defendant opted not to testify at his jury trial. After closing arguments, the jury found defendant

       guilty of first degree murder on October 17, 2013.

¶ 37          Defendant filed a posttrial motion alleging the trial court erred by admitting defendant’s

       videotaped statement. On December 19, 2013, the court denied defendant’s posttrial motion and

       sentenced defendant to serve the maximum term of 75 years’ imprisonment.

¶ 38          Defendant appeals.

¶ 39                                               ANALYSIS

¶ 40          Defendant requests this court to reverse the trial court’s decision denying his 2013

       motion to suppress the videotaped portion of his ongoing interrogation. In addition, defendant

       submits the trial court abused its discretion by sentencing defendant to the maximum term of 75

       years’ imprisonment for felony murder.

¶ 41          When reviewing a circuit court’s ruling regarding the admissibility of a defendant’s

       confession, we apply a two-part standard of review. In re G.O., 191 Ill. 2d 37, 50 (2000). Under

       this standard, a circuit court’s findings of fact and credibility determinations are accorded great

       deference and will be reversed only if the factual findings are against the manifest weight of the

       evidence. Id.; People v. Richardson, 234 Ill. 2d 233, 251 (2009). However, this court reviews

       de novo the ultimate question of law regarding whether the suppression is warranted.

       Richardson, 234 Ill. 2d at 251; People v. Slater, 228 Ill. 2d 137, 149 (2008).

¶ 42                               I. Presumed Inadmissibility of Videotape

¶ 43          Defendant first argues the court erroneously failed to recognize that the videotaped

       portion of his ongoing custodial interrogation was presumptively inadmissible against defendant,

       as a matter of law, for purposes of his own prosecution for murder. Defendant submits the

       detectives did not strictly comply with the statutory videotaping requirements required by section

       103-2.1 of the Code by recording the entire custodial interrogation. 725 ILCS 5/103-2.1(b)

                                                        10
       (West 2010). In contrast, the State argues the videotaping provisions of the Code did not apply

       because at the time of the interview: (1) defendant was not in custody for purposes of the murder

       investigation, and (2) defendant was not yet a murder suspect.

¶ 44          The State correctly points out that the videotaping requirements only apply to custodial

       interrogations. The statute provides:

                  “An oral, written, or sign language statement of an accused made as a result of a

                  custodial interrogation conducted at a police station or other place of detention shall

                  be presumed to be inadmissible as evidence against the accused in any criminal

                  proceeding brought under Section 9-1, *** unless:

                      (1) an electronic recording is made of the custodial interrogation; and

                      (2) the recording is substantially accurate and not intentionally altered.”

                      (Emphasis added.) Id.

       The Code also defines “custodial interrogation” for purposes of the videotaping requirements to

       mean “any interrogation during which (i) a reasonable person in the subject’s position would

       consider himself or herself to be in custody and (ii) during which a question is asked that is

       reasonably likely to elicit an incriminating response.” 725 ILCS 5/103-2.1(a) (West 2010).

       Section 103-2.1(a) of the Code mirrors and codifies “ ‘the common-law definition of custodial

       interrogation developed in Miranda and [its] progeny.’ ” People v. Clayton, 2014 IL App (1st)

       130743, ¶ 26 (quoting People v. Harris, 2012 IL App (1st) 100678, ¶ 52).

¶ 45          The trial judge ordered the suppression of defendant’s unrecorded and self-incriminating

       statements that occurred “up until the point that the Miranda Warnings were given.” Miranda

       applies to custodial interrogations as well. Consequently, contrary to the State’s assertion on

       appeal, we agree with the trial court’s finding that defendant was subjected to a custodial



                                                       11
       interrogation during the first segment of the interview. We give great deference to this finding of

       fact by the trial judge. See Richardson, 234 Ill. 2d at 251.

¶ 46          Here, the record supports the trial court’s factual finding on the issue of whether the

       unrecorded interview constituted a custodial interrogation. First, Officer Kampas transported

       defendant from the Peoria County jail to the Peoria police station in handcuffs. Once present at

       the police station, defendant remained in handcuffs in the interrogation room. Although Watkins

       removed defendant’s handcuffs, defendant was not able to leave the interrogation room or move

       about at the police department without the detectives’ direct supervision. After a short break, the

       detectives escorted defendant back to the original small, locked interrogation room for further

       questioning. The defendant was not free to leave the interview at any point and return to the

       Peoria County jail. Based on these facts, the court’s finding supports defendant’s argument that

       the first segment of defendant’s unrecorded interview with both detectives qualified as a

       custodial interrogation for purposes of both the Miranda warnings and section 103-2.1(b) of the

       Code. 725 ILCS 5/103-2.1(b) (West 2010).

¶ 47          We next turn to the State’s argument that defendant was not a murder suspect in the

       detective’s eyes when the interview began at 6 p.m. Consequently, the State submits the

       detectives were not required to videotape the custodial interrogation of a non-suspect during an

       ongoing murder investigation. When considering the State’s argument, we revisit the precise

       language of the statute, which states:

                  “An oral, written, or sign language statement of an accused made as a result of a

                  custodial interrogation conducted at a police station or other place of detention shall

                  be presumed to be inadmissible as evidence against the accused in any criminal

                  proceeding brought under Section 9-1, *** unless:

                      (1) an electronic recording is made of the custodial interrogation; and

                                                        12
                      (2) the recording is substantially accurate and not intentionally altered.”

                      (Emphases added.) Id.

       The relevant language set forth above does not make any reference to the status of the declarant

       as a “suspect” at the time of the custodial interrogation. Similarly, the statutory language does

       not limit the videotaping requirements to investigations solely related to murder cases. Rather,

       the statutory language set forth above reveals that any unrecorded and self-incriminating

       statement by a declarant, during a custodial interrogation conducted at a police station, will be

       presumed inadmissible against the accused in criminal proceedings involving murder charges.

¶ 48          We conclude the status of the declarant as an “accused” must be measured by two

       objective factors to be considered by a neutral judge. First, and perhaps foremost, the declarant

       must be facing murder charges as part of a criminal proceeding when the State seeks to introduce

       the declarant’s self-incriminating statements as evidence against the declarant. Second, the

       declarant’s self-incriminating statement or confession must have resulted from a custodial

       interrogation that took place at a police station or other place of detention. Hence, the subjective

       beliefs of the detectives regarding the declarant’s status as a witness or a murder suspect at the

       time of the unrecorded custodial interrogation is irrelevant and not determinative of the

       statement’s presumed inadmissibility where the detectives have not strictly complied with the

       videotaping requirements. See Clayton, 2014 IL App (1st) 130743, ¶ 37.

¶ 49          Turning to the undisputed facts of this case, we conclude defendant was “accused” of

       murder when the court was called upon to determine the admissibility of the recorded second

       segment of the interview that began at 6:35 p.m. on July 16, 2010. Next, we return to the

       language of the Code to determine whether the court properly allowed the State to introduce

       evidence of the second recorded segment of the custodial interrogation.

¶ 50          Section 103-2.1(d) of the Code provides:

                                                        13
                  “If the court finds, by a preponderance of the evidence, that the defendant was

                  subjected to a custodial interrogation in violation of this Section, 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 in

                  any criminal proceeding against the defendant except for the purposes of

                  impeachment.” (Emphasis added.) 725 ILCS 5/103-2.1(d) (West 2010).

       Simply stated, the preponderance of the evidence in this case establishes the recorded segment of

       the interrogation followed the unrecorded segment of the custodial interrogation and therefore, is

       presumed inadmissible.

¶ 51          Hence, the detectives’ decision not to record the first segment of the custodial

       interrogation has significant negative consequences on the prosecutor’s ability to introduce

       compelling evidence of guilt at trial; specifically, defendant’s own incriminating admissions to

       felony murder. Based on this record, we hold the trial court erred by failing to recognize the

       second portion of the custodial interrogation in this case was presumptively inadmissible, as a

       matter of law, because the detectives did not record the preceding segment of the interrogation as

       required by section 103-2.1(b) of the Code. 725 ILCS 5/103-2.1(b) (West 2010). Therefore, we

       reverse the trial court’s ruling and hold the recorded custodial interrogation that began at

       approximately 6:35 p.m. was inadmissible as a matter of law.

¶ 52                                      II. Violation of Miranda Rights

¶ 53          Alternatively, defendant challenges the court’s finding that there was “enough

       disconnect” between the statement given by defendant pre-Miranda and the statement given after

       Miranda. This case is controlled by well-established case law based on the holding in Missouri

       v. Seibert, 542 U.S. 600 (2004).



                                                        14
¶ 54          The Supreme Court, in Seibert, discussed the police procedure of engaging in a “question

       first and warn later” approach to obtaining a defendant’s incriminating statements. Id. at 611-12.

       The Supreme Court held, under the facts in Seibert, “the question-first tactic effectively

       threaten[ed] to thwart Miranda’s purpose of reducing the risk that a coerced confession would be

       admitted.” Id. at 617. Further, the Seibert court held the facts did not reasonably support a

       conclusion that the Miranda warnings given could have served their purpose after the defendant

       already made an unwarned statement to the police. Id. Therefore, the court held that Seibert’s

       postwarning statements were procured by law enforcement officers in violation of Miranda and

       were inadmissible. Id.

¶ 55          In People v. Lopez, 229 Ill. 2d 322, 358 (2008), our supreme court adopted the Seibert

       holding and followed the new test announced in Seibert to determine whether Miranda warnings,

       delivered after initial questioning, could be effective enough to protect a suspect’s rights. The

       Lopez court acknowledged that police officers might not generally admit that they deliberately

       withheld a Miranda warning to obtain a confession. Id. at 361. Further, there might be

       situations where an officer might mistakenly rather than deliberately withhold Miranda

       warnings. Id. at 364. Therefore, to determine whether postwarning statements were admissible,

       our supreme court examined “ ‘the completeness and detail of the questions and answers in the

       first round of interrogation, the overlapping content of the two statements, the timing and setting

       of the first and the second, the continuity of police personnel, and the degree to which the

       interrogator’s questions treated the second round as continuous with the first.’ ” Id. at 358

       (quoting Seibert, 542 U.S. at 615).

¶ 56          The facts in Lopez involved a juvenile who spoke to police without a parent and without

       the benefit of Miranda warnings. Even though the second interview occurred two hours later,

       after Miranda warnings and after the juvenile spoke to his father who was present during the

                                                        15
       second interview, the Lopez court suppressed the contents of the second interview. In Lopez, our

       supreme court discussed and applied the rationale used in Seibert as illustrated by the language

       from Lopez set forth below:

                  “The plurality looked to the passage of time between the unwarned and warned

                  statements, the location where those statements were taken, whether the same person

                  questioned the suspect during the unwarned and warned statements, whether details

                  obtained during the unwarned phase were used during the warned phase, and whether

                  the suspect was advised that the unwarned statement could not be used against the

                  suspect. [Citation.] The plurality also considered whether ‘[i]t would have been

                  reasonable to regard the two sessions as parts of a continuum, in which it would have

                  been unnatural to refuse to repeat at the second stage what had been said before.’ ”

                  Id. at 364-65 (quoting Seibert, 542 U.S. at 616-17).

¶ 57          Here, although defendant was 18 years old, the Lopez case is instructive. In this case, the

       unwarned custodial interrogation began at 6 p.m. Using McDaniel’s timeline, this portion of the

       interrogation lasted approximately 15 minutes. Both detectives and defendant agreed that

       defendant smoked a cigarette in another room before the second custodial interview with

       Miranda warnings began at 6:35 p.m. on the same date, in the same interrogation room, with the

       same detectives present. It is undisputed that defendant had enough time to smoke a cigarette

       between the first and second interview, but he did not leave the police station and remained in

       custody at all times from 3:50 p.m. until he was transported back to the jail at 8:25 p.m. Unlike

       Lopez, this defendant did not speak to anyone during the short break between interviews.

       Further, defendant did not have an opportunity to telephone his lawyer or his father between

       interview segments. We conclude a cigarette break is not a sufficient amount of time to remove

       the taint of the original Miranda violation.

                                                       16
¶ 58           The trial court’s finding that there was “enough disconnect” between the statement given

       before Miranda and the statement given after Miranda making Seibert inapplicable is contrary to

       the manifest weight of the evidence discussed above. Therefore, we conclude that defendant’s

       videotaped portion of the custodial interview also should have been suppressed due to the

       Miranda violation that occurred at 6 p.m., even though Miranda warnings were provided by the

       detectives at 6:35 p.m.

¶ 59                                         III. Excessive Sentence

¶ 60           Having concluded that the trial court erred by admitting defendant’s videotaped statement

       based on the violation of sections 103-2.1(b) and (d) of the Code (725 ILCS 5/103-2.1(b), (d)

       (West 2010)) and the violation of defendant’s Miranda rights, we refrain from addressing

       whether the sentence imposed by the court was excessive.

¶ 61                                         IV. Double Jeopardy

¶ 62           Defendant, on appeal, asks this court to reverse the court’s order denying the motion to

       suppress the videotaped statement and to remand this case for a new trial. However, we are

       bound to consider the double jeopardy implications of a new trial. Thus, even though defendant

       did not raise concerns regarding the sufficiency of the evidence or ask this court to vacate his

       conviction outright, we are required to consider the sufficiency of the evidence against defendant

       for double jeopardy purposes. Lopez, 229 Ill. 2d at 366-67 (citing People v. Garner, 147 Ill. 2d

       467, 483 (1992)). The Lopez court instructs us to consider whether all of the evidence presented

       at trial, including the now-suppressed statement, was sufficient to convict. Id. at 367 (quoting

       People v. Olivera, 164 Ill. 2d 382, 393 (1995)). The relevant question is whether, after viewing

       the evidence in the light most favorable to the State, any rational trier of fact could have found

       the essential elements of the crime beyond a reasonable doubt. Id. (citing Olivera, 164 Ill. 2d at

       396.)

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¶ 63           In the case at bar, looking at all of the evidence presented at trial in a light most favorable

       to the State, including defendant’s now-suppressed statements and defendant’s unexplained

       recent possession of the murder weapon, we conclude the evidence would have been sufficient to

       convict. Therefore, retrial is not barred by double jeopardy.

¶ 64                                              CONCLUSION

¶ 65           For the foregoing reasons, we reverse the court’s ruling denying defendant’s motion to

       suppress his videotaped statement and remand this case for further proceedings consistent with

       this order.

¶ 66           Reversed and remanded.




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