                                 2017 IL App (1st) 150575

                                      No. 1-15-0575

                               Opinion filed March 31, 2017

                       Modified upon denial of rehearing June 9, 2017.


                                                                       FIFTH DIVISION

                                            IN THE


                            APPELLATE COURT OF ILLINOIS


                                      FIRST DISTRICT



     THE PEOPLE OF THE STATE OF                 )      Appeal from the Circuit Court
     ILLINOIS,                                  )      of Cook County.
                                                )
          Plaintiff-Appellee,                   )
                                                )
          v.                                    )      No. 09 CR 364
                                                )
     SERGIO HERNANDEZ,                          )      The Honorable
                                                )      Thomas P. Fecarotta, Jr.,
          Defendant-Appellant.                  )      Judge, presiding.



               PRESIDING JUSTICE GORDON delivered the judgment of the court, with opinion.

               Justice Reyes concurred in the judgment and opinion.

               Justice Lampkin specially concurred, with opinion.


                                        OPINION

¶1             After a jury trial, defendant Sergio Hernandez was found guilty of the

       first-degree murder of Rocio Munoz and of personally discharging the firearm

       that caused her death. 720 ILCS 5/9-1(a)(1) (West 2008) (first-degree murder

       with intent to kill); 730 ILCS 5/5-8-1(a)(1)(d)(iii) (West 2006) (25-year
     No. 1-15-0575


       sentencing enhancement for personally discharging a firearm causing death).

       Defendant was sentenced to 30 years for the murder and 25 years as a result of

       a firearm enhancement, for a total sentence of 55 years with the Illinois

       Department of Corrections (IDOC).

¶2           On a prior appeal, this court found that defendant's arrest was illegal, and

       we vacated defendant's conviction and remanded the case for an attenuation

       hearing. People v. Hernandez, 2013 IL App (1st) 103447-U, ¶¶ 42, 50

       (unpublished order pursuant to Supreme Court Rule 23).          Specifically, we

       remanded the matter to the trial court "with directions to conduct a hearing to

       determine whether defendant's statements at the police station were sufficiently

       attenuated from his illegal arrest to render it admissible." Hernandez, 2013 IL

       App (1st) 103447-U, ¶ 50. We also permitted the parties the opportunity on

       remand to develop a factual record bearing on defendant's claims of ineffective

       assistance of trial counsel. Hernandez, 2013 IL App (1st) 103447-U, ¶ 56.

¶3           After the trial court held the attenuation hearing, we instructed the trial

       court as follows: "Should the trial court find defendant's confession was

       sufficiently attenuated from his illegal arrest, we direct the court to reinstate

       defendant's conviction. In the alternative, if the trial court determines that no

       such attenuation exists to purge the confession from the taint of defendant's

       illegal arrest, we direct the trial court to suppress the confession and conduct

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     No. 1-15-0575


       further proceedings consistent with this opinion." Hernandez, 2013 IL App

       (1st) 103447-U, ¶ 50.

¶4           On remand, the trial court held an attenuation hearing and found that

       defendant's statement to the police at the police station was sufficiently

       attenuated from his earlier arrest to be admissible at trial; and, following our

       directions, the trial court reinstated defendant's conviction.

¶5           Defendant now appeals the trial court's decision, arguing: (1) that the trial

       court erred in finding attenuation; (2) that his counsel at the attenuation hearing

       had a conflict of interest, since the appellate court permitted defendant on

       remand to address his claim that his trial counsel was ineffective for failing to

       move to suppress his statement as involuntary, and the same trial counsel

       continued to represent defendant on remand (Hernandez, 2013 IL App (1st)

       103447-U, ¶ 56 (permitting the parties " 'an opportunity to develop a factual

       record' ") (quoting People v. Bew, 228 Ill. 2d 122, 135 (2008)); and (3) that this

       counsel was ineffective for failing to move to suppress defendant's statement as

       involuntary (Hernandez, 2013 IL App (1st) 103447-U, ¶ 56 ("depending on

       what is entered into the record on remand, ineffectiveness *** could be

       addressed on direct appeal").




                                               3

       No. 1-15-0575


¶6             For the following reasons, we reverse defendant's conviction, suppress

         the statement he made at the police station and remand for further proceedings

         consistent with this opinion.

¶7                                       BACKGROUND

¶8             In the evening of November 25, 2008, the victim, Rocio Munoz, was

         found shot in the head while in her vehicle, which was parked on West Irving

         Park Road in Hanover Park, Illinois. On December 22, 2008, defendant, her

         former boyfriend, was indicted for her murder.

¶9                            I. Pretrial Motion to Quash Arrest

¶ 10           Prior to trial, defendant filed a motion to quash his arrest and suppress

         evidence on the ground that he was illegally arrested at his home without

         probable cause or a warrant. After holding a suppression hearing, the trial court

         concluded that defendant was not arrested at his home. On appeal, this court

         reversed the decision of the trial court and found that an arrest had occurred.

         Hernandez, 2013 IL App (1st) 103447-U, ¶ 2. We described the testimony at

         the suppression hearing in detail in our prior decision, and we will not repeat it

         here. Hernandez, 2013 IL App (1st) 103447-U, ¶¶ 4-9. In sum, more than 20

         police officers, some armed, arrived at defendant's home, handcuffed him and

         patted him down, and then removed his handcuffs and seated him next to an

         armed officer in the back of a police vehicle and transported him to another

                                               4

       No. 1-15-0575


          police vehicle, which then transported him to an interrogation room in a police

          station, where he was questioned from nine at night until almost three in the

          morning. This court concluded that no reasonable person in defendant's shoes

          would have thought that he or she was free to leave. Hernandez, 2013 IL App

          (1st) 103447-U, ¶¶ 42, 46.

¶ 11                                   II. Evidence at Trial

¶ 12             Except for a few statements, the testimony at trial was not described in

          our prior opinion, so we provide a description here.1

¶ 13             At trial, Jose Munoz2 testified that his sister Rocio, the victim, had dated

          defendant for three or four years, until 6 months before she died. Rocio, who

          had immigrated to the United States in 2005 from Mexico, had known

          defendant in Mexico. At the time of her death, Rocio was living with her

          brother Jose and their two brothers, and they had all lived together for three

          years. For four years, Rocio had worked cutting hair, and during the last six or

          eight months before her death, she had worked at a salon on Irving Park Road,

          in Hanover Park.


             1
                A review of the evidence at trial is also necessary for our determination
       that there is sufficient evidence to justify a remand for a new trial without running
       afoul of the double jeopardy clause. Supra ¶ 132.
             2
                Since both the witness and his sister share the last name of Munoz, we
       refer to them by their first names to avoid confusion.
                                                 5

       No. 1-15-0575


¶ 14              Rafael Delatore Guzman testified that, in November 2008, he was dating

         Rocio. On November 25, 2008, he met her at 8 p.m. as she was leaving the hair

         salon where she worked. The salon was in a shopping center on Irving Park

         Road. The two of them walked to her vehicle, which was parked in the parking

         lot in front of the salon. While Rocio was removing some bags from the front

         passenger seat to the back of the vehicle so that Guzman could sit down,

         Guzman observed a man walking in front of the vehicle. The man was 6 feet

         tall, 184 pounds,3 and dressed in a black hooded sweatshirt, with the hood over

         his head, such that Guzman could not observe his face. After Rocio told

         Guzman that he could enter the vehicle, Guzman was entering when he heard a

         shot. After the shot, Guzman testified: "I just saw Rocio move." Guzman then

         entered a nearby supermarket. However, as Guzman reached the store, he

         turned around and observed the same man walking on the sidewalk. After

         entering the store, Guzman asked one of the workers to call the police and an

         ambulance. When Guzman observed the first police vehicle arrive, he went

         outside and walked to Rocio's vehicle with a police officer. When Guzman

         reached her vehicle, he opened the passenger door and observed Rocio lying on

         the passenger seat, and he grabbed her and lifted her up, and he observed that




            3
                None of the witnesses testified at trial as to defendant's weight and height.
                                                   6

       No. 1-15-0575


          her face was full of blood. Blood was on her face and the vehicle seat, and on

          all of her clothes.

¶ 15             Detective Hugo Villa, of the Hanover Park Police Department, testified

          that, on November 25, 2008, he was a police officer and he responded to a call

          at 8:11 p.m. directing him to a shopping center on Irving Park Road. After

          arriving there, Villa observed a woman slumped forward in the driver's seat of a

          silver Ford parked in the parking lot, and she was covered in blood. The

          driver's side door was closed, and the window was shattered, with a partial hole

          in the window. After Villa opened the door, he grabbed the woman by her left

          shoulder and pulled her back, so that she sat up in her seat. 4 Villa observed a

          gunshot wound behind the woman's left ear and did not observe any signs of

          life. As Villa called the dispatch officer, he noticed a spent shell casing outside

          the vehicle, within a foot or two of the driver's side door. However, Villa was

          not able to determine the caliber of the shell casing. While at the scene, he

          spoke with Rocio's then current boyfriend, whose name Villa could not recall.

¶ 16             Nicholas Rossberg, a paramedic with the Hanover Park Fire Department,

          testified that, on November 25, 2008, he received a dispatch at 8:12 p.m. and




             Guzman testified that, when he observed the first police vehicle arrive, he
             4


       walked to Rocio's vehicle with a police officer and that Guzman, not the officer,
       opened the passenger door and grabbed Rocio and lifted her up.
                                                 7
       No. 1-15-0575


         that, when he arrived on the scene, Rocio was not responsive and not breathing,

         and had no pulse. She was transported to St. Alexius Medical Center.

¶ 17           The parties then entered a stipulation that if Dr. Karla Dunston was called

         to testify, she would testify that on November 25, 2008, she was an emergency

         room physician at St. Alexius Medical Center in Hoffman Estates, that Rocio

         arrived at 8:36 p.m. with a gunshot wound to the back of her head behind her

         left ear and was pronounced dead at 8:44 p.m. The parties also stipulated that, if

         Dr. Kendall Crowns was called to testify, he would testify that he was a deputy

         medical examiner for Cook County and that the cause of Rocio's death was a

         gunshot wound to the head.

¶ 18           Edgardo Lopez, a Hanover Park police officer, testified that, on

         November 25, 2008, he was a member of the Major Case Assistance Team

         (MCAT), and they went to Aurora to locate defendant who was a suspect.

         After police had "put out word that [defendant] was being looked for,"

         defendant called the police.     While in Aurora, Lopez, who was fluent in

         Spanish, spoke on the phone with defendant who provided directions; and the

         officers then went to an apartment building where defendant was waiting

         outside. Defendant did not run or resist. Other officers approached defendant

         and transported him to the Hanover Park police station.




                                               8

       No. 1-15-0575


¶ 19                 David Scot Carlson testified that, on November 25, 2008, starting at 4

         p.m., he was working as a bouncer at a bar in Hanover Park, located at Irving

         Park Road and Jensen Street, approximately 100 yards from the shopping center

         with the hair salon. Carlson had two prior convictions for theft. Shortly after 4

         p.m., he stepped outside for a cigarette and observed a black or blue Ford F150

         pick-up truck with "flared out" back wheels parked on Jensen Street. Part of

         Carlson's job is to patrol the bar's parking lot. Carlson observed the same truck

         at 8 p.m. 5 and also observed, "in the retention pond an officer with two

         gentlemen on the ground, possibly at gunpoint." Carlson was not asked to

         explain what a retention pond was or to describe it, but he did state that the

         pond was "on the other side of the truck." Carlson returned to the bar, and thus

         did not observe what happened to the two men. The next day, when Carlson

         returned to work, he noticed a picture of the truck behind the bar. Carlson then

         called the Hanover Park Police Department and Hanover police came to

         Carlson's home on December 2, 2008. Carlson then went with the police to the

         Hanover Park police station, where he observed the same truck parked in the

         police parking lot. The police did not point the truck out to him; he just noticed

         it.



               5
                   Detective Villa testified that he received a dispatch about the murder at 8:11
       p.m.
                                                     9
       No. 1-15-0575


¶ 20             Lisa Koenen, an evidence technician with the Village of Hoffman

          Estates, testified that, on November 25, 2008, she went to St. Alexius Medical

          Center to photograph the victim's body. In addition to observing a gunshot

          entrance wound on the side of the victim's head, Koenen also observed four

          pieces of glass fragments in the victim's hair. Koenen was also present during

          the subsequent autopsy at the Cook County Medical Examiner's Office and she

          took custody of the "fragmented projectiles" 6 removed by the medical examiner

          from the victim's head which had lodged behind the victim's right eye. On

          November 26, 2008, at 8:30 p.m., Koenen also photographed the exterior of the

          apartment building where defendant resided and where he had been located

          earlier that day. There was a truck parked by the side of the building that

          Koenen photographed. When she looked through the truck's windows, Koenen

          observed a black plastic gun holster underneath the front passenger seat.

¶ 21             The parties then stipulated that, if Ernie Dannenberger were called to

          testify, he would testify that he is the Director of the Vehicle Services

          Department for the Illinois Secretary of State and that a 1999 Ford F150 with a

          certain license plate number was registered to Jose M. Hernandez in Aurora,

          Illinois.


             6
               Koenen referred to the items she received as "fragmented projectiles." She
       did not identify a caliber or type.

                                               10 

       No. 1-15-0575


¶ 22             The parties further stipulated that if Jose Hernandez 7 were called to

          testify he would testify that he helped defendant, who is his nephew, purchase a

          dark blue Ford F150 truck and that, as a result, Jose is listed as the owner.

          Although Jose was listed as the owner, he never used or drove the truck which

          belonged to defendant. In the early morning hours of November 27, 2008,

          when Hanover Park police officers came to his home, Jose signed a consent

          form allowing them to search the truck.

¶ 23             Thomas Todd, a forensic technician with the Schaumburg police

          department, testified that, on November 28, 2008, he processed the blue Ford

          F150 truck and recovered (1) a black plastic gun holster and a pair of white

          women's panties from the center console hump on the front-seat floor, and (2)

          multiple small broken-glass fragments from the driver's side front-seat floor

          mat. 8 Based on the shape of the holster and the lack of an area for a cylinder,

          the holster appeared to be a holster for an automatic weapon.

¶ 24             Sergeant Kevin Conway testified that he worked for the Hanover Police

          Department and that, on November 29, 2008, he traveled to defendant's




             7
               Since both defendant and his uncle share the same last name of Hernandez,
       we will refer to the uncle by his first name in order to avoid confusion.
             8
             Lisa Koenen, an evidence technician, testified that she observed glass
       fragments in the victim's hair.
                                               11
       No. 1-15-0575


          building and, near the rear garage door, he observed some burnt black clothing9

          with a partial zipper. The pile also included a scale. In December 2008,

          Conway transported David Carlson from Carlson's home to the police station,

          and then to the bar where Carlson worked. Conway then parked his unmarked

          police vehicle in the location where the truck had been parked on the night of

          the murder, and photographed the area. The location was less than a block from

          the shopping center.

¶ 25             The parties stipulated that, if Monica Ramirez were called to testify, she

          would testify that she is fluent in both English and Spanish, that she accurately

          translated the videotaped interview of defendant on November 27, 2008, from

          Spanish into English, and that her transcript was used to create English subtitles

          for a video of approximately the last hour of the interview.

¶ 26             In a sidebar, the parties agreed that, although there was an English

          translation and transcript of the entire six-hour interview, the jury was not going

          to receive that transcript. Instead, the jurors were going to watch a video of

          approximately the last hour of the interview with English subtitles. With respect

          to the written transcript, the trial court stated: "You can put it into evidence. It's

          just not going to the jury." The trial court later stated, and the parties agreed,



             9
             Guzman, the victim's boyfriend, testified that the shooter wore a black
       hooded sweatshirt.
                                                  12 

       No. 1-15-0575


          that People's Exhibit #61, which was the entire transcript, was "not in

          evidence."

¶ 27              Alvaro Fernandez, a police officer with the Village of Hoffman Estates,

          testified that, on November 26, 2008, at 9 p.m., he met defendant in an

          interview room at the Hanover Park police station. Fernandez is from Cuba and

          fluent in Spanish. Defendant indicated that he spoke only a little English and

          was more comfortable with Spanish, so Fernandez spoke to him in Spanish,

          first advising defendant of his Miranda rights. The interview lasted from 9 p.m.

          until 2:45 a.m. At first, Detective Ralph Griewosz was also in the interview

          room but, since Griewosz did not speak Spanish, Griewosz left between 10:30

          and 11 p.m. and was replaced by Detective Juan Miranda who spoke Spanish.

¶ 28              The jury then viewed a video of only the last 57 minutes of the interview

          with defendant.     While the interview was in Spanish, the video contained

          simultaneous English subtitles.      The video, which the jury viewed, also

          contained information which was not otherwise introduced into evidence at

          trial. Thus the jury viewed: (1) the police suggesting that Rocio's boyfriend had

          already identified defendant from a photo array; 10 (2) the police telling



             10
               On the video, the police officers stated: "We – the Rocio's boyfriend, she
       was with him, when this happened. We showed him this. *** And whose picture
       do you think he picked out." They also stated: "Why do you think Rocio's
       boyfriend – he doesn't know you and you don't know him -- *** No and why
                                                13 

       No. 1-15-0575


          defendant that individuals named "Alejandro" and "Alfredo"11 had separately

          informed them that defendant had left his home before 7 p.m. on the night of

          the murder wearing a black hooded sweatshirt and that the two men knew it was

          before 7 p.m. because their soap operas had not yet started; (3) the police telling

          defendant that they had discovered a receipt in defendant's room which proved

          that defendant was at a market at 6:14 p.m. on the night of the murder and then

          showing defendant the receipt; and (4) the police performing a gunshot residue

          test on defendant's hands and telling defendant that the result was positive for

          the presence of gunshot residue.

¶ 29              However, none of these alleged facts were substantiated at trial. First,

          although the jury viewed the police seeming to indicate that Rocio's boyfriend

          had positively identified defendant, Guzman testified at trial that he did not

          view the shooter's face. Second, although the jury viewed the police telling

          defendant that "Alejandro" and "Alfredo" had informed them that defendant had

          left his home before 7 p.m. wearing a black hooded sweatshirt, no one by either

          name testified at trial. Third, although the jury viewed the police informing

       would he – he doesn’t know you. We didn't tell him who you were. We showed
       him this and who do you think he picked out?"
             11
                 In an earlier part of the video which the jury did not view, defendant stated
       that, on the night of the murder, he was with his two friends and room mates,
       Alejandro and Alfredo, for a portion of the evening. Defendant did not state their
       last names.

                                                 14 

       No. 1-15-0575


         defendant that they had discovered a receipt in his room showing that defendant

         was at a market at 6:14 p.m., no such receipt was introduced at trial. Fourth,

         although the jury viewed the police ostensibly performing a gunshot residue test

         on defendant's hands and informing defendant of the positive result, the jury

         was never informed that this was a bogus or fake test, as later described in the

         subsequent post-appeal attenuation hearing.

¶ 30           In the video that the jury watched, the officers asked defendant if they

         had his "permission" to "check" his hands for gunshot residue, and defendant

         asked "what are my rights?" One of the officers replied: "I'm asking you. If

         you don't want we won't do it[.]" After defendant explained that he had shot a

         "BB gun" a week ago, the officer indicated that would not affect the test.

¶ 31           In the video, the officer stressed that gunshot powder would stay on a

         person's hands for months and that washing and scrubbing would not remove it.

         When the officers then asked if defendant wanted the gunshot residue test, he

         replied: "Do it."

¶ 32           The officers then offered defendant the opportunity to take a lie detector

         test, and defendant replied "[d]o it" and stated repeatedly that he would pass it.

         However, no lie detector test was given.

¶ 33           The video depicts the officers asking defendant repeatedly what would

         happen if he did not pass the lie detector test, and defendant replying each time:

                                               15 

       No. 1-15-0575


         "I'll pass it."   Finally, in exasperation, the officer stated, "[t]hat's not the

         question," and defendant replied: "If I don't pass it that means I'm guilty."

         After more questions by the officers, in which they kept asking defendant why

         defendant was lying to them, a third person entered the interrogation room

         carrying a kit and defendant said: "Let's shut up and do the test."

¶ 34            Immediately before the officers performed the bogus gunshot residue

         test, one of the officers asked the apparent technician if he was ready and he

         replied that he was. The technician explained in English how the test worked,

         while one of the officers translated his words into Spanish. The technician

         stated that, if defendant had fired a gun in the last 24 or 48 hours, "[t]his test

         will tell me whether or not you did it. This test will say if you did it or not."

         The technician explained that he was going to apply a chemical to defendant's

         hands and that the chemical would turn pink if defendant had shot a gun.

¶ 35            However, before performing the test on defendant, the technician stated

         that he was first going to perform the test on one of the officers. The technician

         asked defendant "sound fair?" and defendant said yes. Defendant then watched

         as the technician, who was wearing rubber gloves, rubbed a piece of cloth or

         paper on the officer's right hand, and then dipped it into a solution, waited a

         moment and then announced "no pink."




                                               16 

       No. 1-15-0575


¶ 36           The technician then rubbed a piece of paper or cloth against each of

         defendant's hands, then dipped it into a solution, waited a moment and then

         showed it to defendant, asking "[w]hat color is that?" Defendant answered

         "[p]ink."

¶ 37           The technician asked defendant "what do you think pink means," and

         defendant replied "I don't know." One of the officers then asked the technician

         if the test would turn pink from a BB gun, and the technician answered no, that

         it would turn pink only from gunpowder. The technician then packed up his kit

         and exited the room.

¶ 38           The officer asked defendant: "Were you trying to scare her? Was it an

         accident?" After defendant replied that he had "nothing to say," the officer

         asked if defendant wanted the officer to think he was "a monster" and that

         defendant had "killed her like a dog." That is when defendant said, echoing

         what the officer had said before, "[i]t was an accident."

¶ 39           When asked how it happened, defendant stated that he did not know

         about guns, that he wanted to speak with Rocio, that he was nervous, that he

         turned so that she would not look at him and that he then "kind of pulled the

         trigger." When asked where the gun was, defendant stated that he threw it in a

         river in Aurora and that it was "all mashed up." When asked where he obtained



                                               17 

       No. 1-15-0575


          the gun, defendant replied "from some black guy." Defendant did not know

          either the type of gun or the type of bullet.

¶ 40              Both the subtitles and the typed transcript state repeatedly that defendant

          "brunt" his clothes. Although "brunt" is a word, this court presumes that

          "brunt" is a typographical error, and that the translator meant "burnt." In the

          video, defendant stated that he burnt his clothes on the cement outside his house

          and then threw the ashes in the river.

¶ 41              Defendant stated: "It was an accident that's all I know. I myself killed

          her but honestly I wasn't going to shoot her. I didn't want to shoot her. It was

          an accident. The gun was very vulnerable." The officers asked what he did

          when he saw Rocio walking toward her vehicle, and he replied: "I like tried

          talking to her. But for her to open the door I was like let's see if she opens it to

          speak with her or if she'll let me get in the car." Defendant stated that Rocio did

          not open the vehicle.12

¶ 42              When asked about the holster found in his vehicle, defendant stated that

          he did not know about the hostler, that he did not know where the hostler came

          from and that it was not his. About the gun, defendant stated: "I was trembling

          because I've never had a weapon."



             12
               Although defendant stated that Rocio did not open the vehicle door, she
       was found seated inside the vehicle.
                                                   18 

       No. 1-15-0575


¶ 43           After the jury watched the video, Detective Fernandez resumed his

         testimony. Fernandez testified that defendant informed him that defendant had

         broken the gun into pieces and thrown them into a river. On November 27,

         2008, Fernandez and 20 other officers drove with defendant to Aurora to search

         for the gun. Defendant first indicated that he had thrown pieces of the gun off a

         pedestrian bridge and also from a park along the Fox River. When Fernandez

         accused defendant of lying, defendant said that he had thrown the whole gun

         out his vehicle's window into a grassy lot in Aurora. After a search of the lot,

         no gun was found.

¶ 44           When the assistant State's Attorney (ASA) asked "this story about it

         being an accident, who was the first one that used the word accident and

         suggested accident during this interview," Detective Fernandez replied: "That

         was me, sir." When asked. "[i]t was not the defendant that first said that this

         was an accident, is that correct?" Fernandez replied: "No. It was part of my

         theme." Fernandez further testified:

                  "ASA: And it was you that first said 'maybe this was an accident,' is

               that right?

                  FERNANDEZ: That's correct.

                  ASA: And basically, he said 'yeah, that's it. It was an accident,' right?

                  FERNANDEZ: After I brought that theme out several times, yes."

                                                19 

       No. 1-15-0575


¶ 45              Both parties rested. During closing arguments, the ASA argued,

          repeatedly and without objection that Rocio had been shot with a 9-millimeter

          semiautomatic handgun. However, the gun was not recovered, and none of the

          witnesses testified that the shell casing found on the scene or the fragments

          removed from the victim's head were fired from a 9-millimeter semiautomatic

          handgun.13 The defense attorney argued that Rocio's death was an accident and

          asked the jury to find defendant guilty of involuntary manslaughter. During the

          jury instructions, the trial court told the jury: "The tape and not the subtitles is

          the evidence. If you perceive a conflict between the tape and the subtitles, the

          tape controls."    After listening to the court's instructions, the jury found

          defendant guilty of both first degree murder and personally firing the firearm

          which caused Rocio's death.

¶ 46                    III. Posttrial Motions, Sentencing and First Appeal

¶ 47              On August 23, 2010, the trial court denied defendant's posttrial motion

          for a new trial which argued, among other things, that the court erred in denying

          defendant's motion to quash his arrest and suppress evidence. At sentencing, the

          trial court listened to factors in mitigation and aggravation, including the fact

             13
               Lisa Koenen, the evidence technician, testified that she recovered
       "fragmented projectiles" which the medical examiner removed from the victim's
       body, but Koenen did not identify a type or caliber number. Similarly, Detective
       Hugo Villa testified that he recovered a spent shell casing outside the victim's
       vehicle but that he was not able to determine the caliber of the shell casing.
                                                 20 

       No. 1-15-0575


         that the 25-year old defendant had no prior contact with the law in the United

         States or in his native Mexico. The minimum possible sentence was 20 years

         for first-degree murder and an additional 25 years to life for personally

         discharging the firearm which caused the death, for a total minimum sentence

         of 45 years with IDOC.         After considering factors in mitigation and

         aggravation, the trial court sentenced defendant to 30 years for the murder and

         25 years for the firearm enhancement, for a total of 55 years with IDOC.

¶ 48           On November 10, 2010, the trial court denied defendant's motion to

         reconsider the sentence, and defendant's first appeal followed. As we already

         indicated, this court found that defendant's arrest was illegal, and we vacated

         defendant's conviction and remanded the case for an attenuation hearing.

         Hernandez, 2013 IL App (1st) 103447-U, ¶¶ 42, 50 (unpublished order pursuant

         to Supreme Court Rule 23). We directed the trial court "to conduct a hearing to

         determine whether defendant's statements at the police station were sufficiently

         attenuated from his illegal arrest to render it admissible." Hernandez, 2013 IL

         App (1st) 103447-U, ¶ 50. We also permitted the parties the opportunity on

         remand to develop a factual record bearing on defendant's claims of ineffective

         assistance of trial counsel. Hernandez, 2013 IL App (1st) 103447-U, ¶ 56.




                                              21 

       No. 1-15-0575


¶ 49                      III. Request for New Counsel On Remand

¶ 50           After the case had been remanded, but before the attenuation hearing

         occurred, the parties appeared before the trial court on April 3, 2014, and

         defendant asked for new counsel. On this appeal, defendant claims that he

         should have received new counsel for the attenuation hearing because his trial

         counsel had a conflict of interest.

¶ 51           On April 3, 2014, the following colloquy occurred, through a translator,

         between defendant and the trial court on the subject of new counsel:

                   "DEFENDANT: I want to ask this honorable Court, or the Judge, the

               appointment for a moritas (phonetic) force.

                   THE COURT: For what?

                   ASSISTANT PUBLIC DEFENDER (APD): Judge, I believe what

               he's trying to say is murder task force.

                   THE COURT: Okay.

                   DEFENDANT: Murder task force. And the reason for which I ask

               this is because my attorney on the last court date, in front of several

               people, told me that she didn't want to do my case, and if it were up to

               her, she would not have taken my case. I have been speaking with her,

               and she doesn't want to bring [to] the Judge's attention some important



                                               22 

       No. 1-15-0575


               points or issues that I believe is for my defense. And I have the name of

               the witnesses that heard her say that.

                  THE COURT: Okay. [Defendant], please put that document away.

               All right.   Here. You're entitled to the representation of the Public

               Defender's Office, okay? This is up today for a hearing on what we call

               attenuation, all right? I don't know if [the APD] explained it to you, but

               I'm sure she did.

                  What I'm going to do is I'm going to hold that hearing pursuant to the

               mandate, or pursuant to the direction of the appellate court on remand,

               okay? And there will be – the Court will hear evidence, and you will be

               present. You will be represented by [the APD].

                  You can't pick and choose which [APD] to get."

¶ 52           The trial court then asked the APD to respond to defendant's allegations:

                  "THE COURT: [APD], would you please – I'm concerned about what

               he said. Could you please respond to his allegation that you – did you

               tell him that you don't want to—

                  APD:      No, Judge. What happened is [defendant] expressed

               displeasure with me. I told him that if he didn't want me representing

               him, I wouldn't want to have to represent him. However, I am assigned



                                               23 

       No. 1-15-0575


               to his case. I would not want to represent someone that did not want me

               to represent him.

                  THE COURT: This matter is here for an attenuation hearing, and

               that's what it's here for, and that's what's going to happen.

                  So we'll see you on May 20th, 2014, because you have a right to be

               present for that hearing, okay? See you then.

                  APD: Judge, in addition, I told him that he had the option of hiring

               private counsel if he chose.

                  DEFENDANT: Your Honor—

                  THE COURT: I said that's the order. Thank you."

¶ 53           On May 20, 2014, the APD informed the trial court that she was not

         ready to proceed with the attenuation hearing because she "received a 27-page

         document written by [her] client indicating things he wanted [her] to address"

         and she had not yet had to time to read it."         In response, the trial court

         rescheduled the hearing for June 30, 2014.

¶ 54                               IV. The Attenuation Hearing

¶ 55           During the State's opening statement at the hearing, the ASA argued,

         among other things that, even though the gunshot residue test was false, it still

         served as an intervening circumstance between the illegal arrest and defendant's

         subsequent confession.
                                                24 

       No. 1-15-0575


¶ 56           At the hearing, Detective William Kirby testified that he was employed

         by the Village of Arlington Heights and assigned to MCAT and that, during the

         afternoon of November 26, 2008, he traveled to the home of defendant's uncle,

         Jose Hernandez, in Aurora and asked Jose to have defendant call Kirby. Kirby

         told Jose, who spoke perfect English, that Kirby wanted to talk to defendant

         about defendant's ex-girlfriend. At 7:15 p.m. that day, defendant called.

¶ 57           Kirby testified that defendant spoke some English but not well. During

         the call, Kirby told defendant that Kirby wanted to speak with him about his ex-

         girlfriend and defendant said that he would talk to Kirby. Defendant asked

         Kirby to "come pick him up" and Kirby agreed. Kirby did not speak Spanish

         and he had to ask Ed Lopez, a Spanish-speaking officer, to call defendant back

         because Kirby did not understand defendant sufficiently to understand the street

         address which defendant provided.

¶ 58           Kirby testified that he contacted his commander, and that his commander

         contacted the Aurora Police Department. At 8:30 p.m. Kirby, Lopez and other

         officers arrived at defendant's location in Aurora. The officers at the location

         included David Warnes, Kirby's commander; Ed Lopez from the Hanover

         Police Department; and "a bunch of uniform[ed] officers [from] Aurora" whom

         Kirby did not know. There were approximately 20 officers present. When

         Kirby first arrived, defendant, as well as five or six other Hispanic males, were

                                               25 

       No. 1-15-0575


          already in handcuffs. Kirby did not observe any guns drawn. However, other

          officers had already been there approximately 20 minutes and Kirby did not

          know whether guns had been drawn prior to Kirby's arrival. When Kirby first

          observed defendant, defendant was handcuffed with his hands behind his back 14

          and walking toward Kirby's vehicle in the company of two or three officers,

          with one officer walking next to defendant and one or two officers walking

          behind.

¶ 59              Kirby testified that, after defendant was walked to Kirby's unmarked

          vehicle, Kirby asked a uniformed Aurora officer who accompanied defendant

          to remove defendant's handcuffs which he did. Kirby asked defendant: "Are

          you coming with me to the police station?" Defendant replied yes, and entered

          the backseat. Kirby's partner, Gary Mitchell sat next to defendant. Both Kirby

          and Mitchell wore guns, but Kirby did not believe that his gun was visible.

          Kirby explained that there was little conversation as he drove because

          defendant's "English is not good and my Spanish is not good." However, Kirby

          testified that he "explained to [defendant] that [Kirby] was driving him to the

          Hanover Park Police Station." Kirby testified that, after the handcuffs were


             14
                The State did not establish at the attenuation hearing the exact time that
       defendant was first arrested. When this court explained why we were remanding
       for an attenuation hearing, we stated that we were missing key facts. For example,
       we observed: "Based on the record, we do not know exactly when defendant was
       arrested." Hernandez, 2013 IL App (1st) 103447-U, ¶ 46.
                                                26
       No. 1-15-0575


         removed, the "tenor" was "cordial and pleasant." However, neither Kirby nor

         Kirby's partner Mitchell told defendant that he was free to leave.

¶ 60           Kirby testified that, during the drive, he received a phone call informing

         him that two Spanish-speaking officers were going to meet them half-way, so

         Kirby pulled into a gas station in West Chicago; and another unmarked police

         vehicle arrived shortly with officers Fernandez and Miranda, who spoke

         Spanish, and a third officer whom Kirby did not know. These three officers

         were all in plain clothes. Kirby exited his vehicle and opened the door and

         asked defendant to exit. The other officers shook hands with defendant, and

         defendant entered the back seat of their vehicle. Fernandez drove that vehicle,

         and Miranda sat in the back seat with defendant.

¶ 61           Before the next witness, the trial court observed that defendant's lawyer

         did not speak Spanish, and the court informed defendant that if, at any time

         during the proceedings, he wanted to speak to his lawyer, he should raise his

         hand and the court would stop the proceedings so that he and his lawyer could

         use the interpreter.

¶ 62           Detective Alvaro Fernandez testified that he was a detective with the

         Hoffman Estates Police Department and that, in November 2008, he was an

         investigator with MCAT assigned to investigate Rocio's death. Between 7:15

         and 8:15 p.m. on November 26, 2008, he traveled with Detectives Juan Miranda

                                               27 

       No. 1-15-0575


         and Ralph Gniewicz to a gas station to meet Detective Kirby who was

         transporting defendant. Fernandez, Miranda and Gniewicz were all in plain

         clothes, and carrying guns. Fernandez testified that the bottom of his holster

         may have been visible from under his jacket when he sat down. In Spanish,

         Fernandez informed defendant that they were transferring vehicles and told

         defendant "we're going to go in this car." Fernandez opened the rear left door

         of his unmarked Dodge Charger, and defendant entered the back seat. Miranda

         sat next to defendant in the back seat; Gniewicz drove; and Fernandez sat in the

         front passenger seat. Defendant asked Miranda what this was about and

         Miranda replied that they would talk about it when they arrived at the police

         station.   They drove ten to fifteen minutes to the Hanover Park Police

         Department, where defendant was brought into an interview room which was

         eight feet by eight feet with a table and a couple of chairs.

¶ 63            Fernandez testified that defendant was alone in the interview room for

         about 20 minutes before Fernandez and Gniewicz reentered. The door to the

         room was shut but Fernandez does not know if it was locked. Before the

         officers reentered, video equipment was in operation. Fernandez's first language

         is Spanish, and he spoke to defendant in Spanish. Fernandez thanked defendant

         for coming, and defendant responded "okay." Fernandez then read defendant

         his Miranda rights from a preprinted form. After reading each right, Fernandez

                                                28 

       No. 1-15-0575


          asked defendant if he understood and defendant would "nod his head and say

          uh-huh." While Fernandez understood defendant's response to mean yes,

          Fernandez did not ask whether it meant yes. When Fernandez asked defendant

          if he would speak with Fernandez, defendant did not verbally respond but he

          nodded his head silently up and down. Fernandez then asked: "Do you wish to

          speak with me? Do you know why you're here?" In response, defendant

          nodded his head no, 15 and Fernandez did not ask him to clarify whether he

          meant: no, he did not want to speak with defendant; or no, he did not know why

          he was here. Fernandez understood the response to indicate an agreement to

          speak with Fernandez.

¶ 64              Fernandez testified that the interview lasted five hours and 45 minutes.

          There were two periods of time when defendant was left alone for 10 to 20

          minutes. Defendant asked to use the bathroom once, and a Hanover Park police

          officer took him. After defendant exited the bathroom, 16 he went directly back

          to the interview room. Defendant received a bottle of water and, after the

          interview, he ate a hamburger. During the interview, he was asked if he was

          hungry and he said no.
             15
                 The written transcript states: "Q: Do you want to speak with me? Do you
       know why you're here? A: No. Q.: No? Okay well if you like we can talk about
       that."
              16
                 Detective Miranda later testified at the hearing that an officer escorted
       defendant to a jail cell to use the bathroom and stood outside the cell while
       defendant used the bathroom.
                                                29 

       No. 1-15-0575


¶ 65              Fernandez testified that, at some point during the interview, he asked

          defendant for his consent to search his vehicle. Defendant asked: "Okay. Hold

          on. Hold on. Can't I ask anybody to verify if that's legal?" and Fernandez

          responded: "What? You think I’m going to put something in your truck? How

          am I going to do that? I don't understand what you want." Later in the

          interview when Fernandez asked defendant to submit to a gunshot residue test,

          defendant responded by asking what his rights were. Fernandez testified that,

          after he called defendant a liar several times, defendant agreed to take the test. .

¶ 66              Fernandez testified that Detective Charles Buczynski entered the room to

          perform the test approximately five hours into the interview. Buczynski

          swabbed     defendant's   hands    and        "the   supposed   results   were   done

          instantaneous[ly]." About 10 to 15 minutes later, defendant began making

          incriminating statements. 17

¶ 67              The State moved into evidence the entire transcript of the interview with

          defendant, and it was admitted without objection. The parties also entered into

          a stipulation that two DVDs depicted the entire interview with defendant, and

          they were moved into evidence by the State and admitted without objection.

¶ 68              Detective Juan Miranda testified that he was a detective with the Hanover

          Park Police Department, and that he first met defendant on November 26, 2008.
             17
               Those statements were already described above at ¶¶ 38-42 and will not
       be repeated here.
                                                   30
       No. 1-15-0575


         Miranda was with his partner, Detective Griewosz, and Detective Fernandez in

         an unmarked police vehicle. Defendant exited the vehicle that he was in, and

         the three officers introduced themselves, informing him that they were all

         police officers. All three officers were armed. They escorted defendant to their

         vehicle, opened the door and asked him to enter. Miranda sat next to defendant,

         and defendant asked him why he was being taken to the police station. Miranda

         did not testify as to his response. They then transported defendant to the

         Hanover Park Police Department and took him to an interview room that was

         not locked. Miranda was not initially involved with the interview, but entered

         the room later. Miranda, who is fluent in Spanish, recalled that defendant was

         offered food and drink and allowed to go to the bathroom. Defendant did not

         want any food and asked for water, and he did go to the bathroom. An officer

         escorted defendant to a jail cell to use the bathroom and stood outside the cell

         while defendant used the bathroom. Later defendant was given food.

¶ 69           Miranda testified that he was present when the "purported" gunshot

         residue test was administered and defendant was informed that the result was

         positive. This occurred several hours into the interview. Miranda testified that

         it was at this point that defendant began making incriminating statements.

¶ 70           Miranda testified that the gunshot residue test was not a real test but a

         ruse to "get" defendant to speak with them:

                                              31 

       No. 1-15-0575


                   "APD: Now this GSR test that we're talking about, that was not a real

               test; that was not a real test; is that correct?

                   MIRANDA: Correct.

                   APD: That was basically a ruse to get [defendant] to speak to you?

                   MIRANDA: Correct."

         From the time that defendant arrived at the Hanover Park police station until the

         time that he made incriminating statements was a total of six hours. At the

         beginning, defendant stated that he did not know that Rocio had been killed.

         During those six hours, defendant remained, "on and off," in the interview room

         with police officers around him. Miranda could not recall if defendant was

         placed in clothing other than the clothing that he arrived in.

¶ 71           The parties stipulated that the DVD with English subtitles which depicts

         the last approximately one hour of the interview was a true and accurate copy of

         defendant's statement during that portion of the interview. The State then

         moved it into evidence and rested.             The defense rested without calling

         witnesses, and the trial court asked defendant if that is what he wanted and he

         indicated no:

                   "APD: Judge, at this time, we would rest as well.

                   THE COURT: You're not calling any witnesses?

                   APD: No, your Honor.
                                                 32 

       No. 1-15-0575


                   THE COURT: [Defendant], is that what you want? You don't want to

                testify on your behalf, correct?

                   DEFENDANT [through interpreter]: I want to testify.

                   THE COURT: I'm sorry?

                   DEFENDANT: I want to testify."

         The APD responded: "it is my decision strategically not to call him. I told him

         this is not a trial. He has a constitutional right to testify at trial; however, this is

         not a trial." The trial court then asked the attorneys if they were prepared to

         argue, and they asked the trial court to review the DVDs prior to argument. The

         matter was then continued for argument.

¶ 72            The State argued that "[t]he testimony was that this high crime area

         called for the number of officers that were there" and that "no weapon was

         drawn past the initial" encounter. However, the only witness at the attenuation

         hearing who testified that he was at defendant's building on the night of the

         arrest was Detective Kirby, and he testified that the area was "a mixed

         residential business area" and that he was not aware of gang activity there.

         Kirby also testified that he did not know whether guns were drawn during the

         first 20 minutes because he was not there during that time.

¶ 73            In addition to arguing that the police conduct was not "egregious," the

         State argued that facts supporting a finding of attenuation included the fact that

                                                   33 

       No. 1-15-0575


          police read defendant Miranda warnings and "confronted" him with the

          purported gunshot residue test.

¶ 74              In response, the defense argued: that the six hours between defendant's

          arrest and statement was not enough to purge the taint; that the Miranda

          warnings did not purge the taint because there was a lack of clear assent by

          defendant; that the police conduct was egregious where over 20 officers arrived

          and defendant was transferred from vehicle to vehicle; and that the use of a

          "phony GSR test" and repeated accusations of lying by the police also

          constituted egregious conduct by the police. In addition, the defense argued

          that defendant had not been confronted with "legally obtained information," as

          the appellate court had asked, because the fake GSR test did not qualify.

          Hernandez, 2013 IL App (1st) 1003447-U, ¶ 49 (this court had asked whether

          defendant had been confronted "with new legally obtained information"

          because that is "one possible intervening circumstance, which may produce a

          voluntary desire to confess and thus render the statement admissible"). The

          defense counsel also mentioned a discussion of the death penalty by the police

          and defendant shortly after defendant incriminated himself. 18      The State


             18
                After defendant had already made incriminating statements, the written
       transcript indicates the following exchange occurred between defendant and the
       officers: "A. [Defendant]: Are you guys at least going to— Q. I don't understand.
       A. What's it called, when one is killed? Q. The death penalty. A. The death
       penalty. Q. That's not our thing. A. Oh no? Q. No that's not a decision we make."
                                               34 

       No. 1-15-0575


         objected immediately on the ground that this discussion was post-arrest and

         thus beyond the scope of the attenuation hearing, but the trial court overruled

         the objection.

¶ 75                          V. Trial Court's Attenuation Ruling

¶ 76           The trial court began its ruling by observing that "the purpose today is

         not to relitigate the motion to quash," since "the [a]ppellate [c]ourt already ruled

         that the fact that the police went and seized the defendant at his home on the

         26th of November 2008, that that was a seizure. And the [a]ppellate court

         already indicated that was an illegal arrest. *** [T]he [a]ppellate [c]ourt found

         that the arrest was done without probable cause and without a search warrant."

¶ 77           The trial court found that it was the fake GSR test which prompted

         defendant to confess:

                   "[H]e did not admit to the murder. And it wasn't until the police did a

               GSR, or a fake GSR, or however you want to look at it, and told him that

               the evidence that they had was that he fired the gun. It wasn't until then

               that the defendant then admitted that, in fact, that he pointed the gun at

               the victim in this case just to scare her, and it accidentally discharged."

¶ 78           The trial court further found that the GSR test was a "strong intervening

         circumstance" and that "nothing else" prompted the confession:



                                                35 

       No. 1-15-0575


                   "So during the statement and denying the fact that he shot the weapon

               at the victim, he was given a presumpti[ve] GSR test or a GSR test which

               the police indicated if [sic] he tested positive for gunshot residue. The

               Court believed that this is a very strong intervening circumstance that

               prompted the defendant to state what he stated [--t]he fact that he shot the

               gun after trying to scare her with the weapon and that it accidentally

               discharged.

                   In watching the video there is nothing else that would have prompted

               him to make the statement."

¶ 79           The trial court stated that, even when a confession is "obtained following

         an illegal arrest," the confession "may be admissible if it was sufficiently an act

         of the defendant's free will." After concluding that the confession at issue was

         an act of defendant's "own free will," the trial court stated: "I do note that the

         GSR statement made by the police prompted the defendant to come clean about

         shooting the weapon at the victim in this case. But I cannot say that this was

         exploitation in looking at the facts as I do, an exploitation of the illegal arrest."

         The facts which the trial court noted were:         (1) the short duration of the

         interrogation, from 9 p.m. on November 26, 2008, until 2:45 a.m. on November

         27, 2006; (2) the provision of Miranda warnings; (3) the cordiality of the

         conversation; and (4) the lack of handcuffs at that time. The trial court found

                                                36 

       No. 1-15-0575


         that "defendant not only understood the rights, but that he, in fact, agreed to

         speak to the police officers waiving those rights."

¶ 80           After ruling that the confession was attenuated, the trial court reinstated

         defendant's conviction and 55-year sentence. On December 18, 2014, which

         was the same day as the trial court's ruling, defendant filed a timely notice of

         appeal. This appeal followed.

¶ 81                                     ANALYSIS

¶ 82           Defendant appeals the trial court's decision, arguing: (1) that the trial

         court erred in finding attenuation; (2) that his counsel at the attenuation hearing

         had a conflict of interest, since the appellate court permitted defendant on

         remand to address his claim that his trial counsel was ineffective for failing to

         move to suppress his statement as involuntary, and this same trial counsel

         continued to represent defendant on remand (Hernandez, 2013 IL App (1st)

         103447-U, ¶ 56 (permitting the parties " 'an opportunity to develop a factual

         record' " (quoting Bew, 228 Ill. 2d at 135)); and (3) that this counsel was

         ineffective for failing to move to suppress defendant's statement as involuntary

         (Hernandez, 2013 IL App (1st) 103447-U, ¶ 56 ("depending on what is entered

         into the record on remand, ineffectiveness *** could be addressed on direct

         appeal").



                                               37 

       No. 1-15-0575


¶ 83           According to the trial transcript, the jury was never informed that the

         gunshot residue test, which the jurors watched on video, was a bogus test.

         Thus, the fake result of the fake test was part of the evidence that the jury

         considered when finding defendant guilty. We fail to see how falsely

         manufactured evidence can ever be due process. However, we do not need to

         reverse on that basis. Instead, we reverse, as we explain below, on the basis

         that was fully developed at the hearing held on remand, namely, attenuation.

¶ 84           For the following reasons, we reverse defendant's conviction, suppress

         the statement he made at the police station and remand for further proceedings

         consistent with this opinion.

¶ 85                                     I. Attenuation

¶ 86           Defendant argues that the trial court should have suppressed his

         confession at the police station because it was the product of his illegal arrest.

         As noted above, this court already found in a prior decision that defendant's

         arrest was illegal under the fourth amendment, since it was made without a

         warrant or probable cause. Hernandez, 2013 IL App (1st) 103447-U, ¶ 44; U.S.

         Const. amend IV.

¶ 87           However, the conclusion that a defendant's arrest was illegal under the

         fourth amendment does not automatically mean that his subsequent statement is

         suppressed. People v. Jackson, 374 Ill. App. 3d 93, 101, 104 (207); People v.

                                               38 

       No. 1-15-0575


         Wilberton, 348 Ill. App. 3d 82, 85 (2004); see also People v. Johnson, 237 Ill.

         2d 81, 93 (2010). The question then becomes whether the statement was

         obtained by means sufficiently distinguishable from the illegal arrest such that

         we can say that the statement is purged of, or attenuated from, the taint of the

         original fourth-amendment illegality. Johnson, 237 Ill. 2d at 93; Jackson, 374

         Ill. App. 3d at 101.

¶ 88           Attenuation analysis under the fourth amendment is distinct from the

         threshold question of voluntariness under the due process clause. Jackson, 374

         Ill. App. 3d at 101. "[T]he voluntariness of a defendant's statements does not

         automatically purge the taint of an illegal arrest***." People v. Franklin, 115

         Ill. 2d 328, 333 (1987). The absence of physical abuse or coercion, and the

         voluntariness of the statement, are merely threshold requirements for its

         admissibility. Jackson, 374 Ill. App. 3d at 105 see also Franklin, 115 Ill. 2d at

         333. As a result, the fact that a trial court found no physical abuse or coercion

         does not resolve the issue of attenuation. Jackson, 374 Ill. App. 3d at 105; see

         also Franklin, 115 Ill. 2d at 333.

¶ 89                                A. Standard of Review

¶ 90           The parties disagree on the appropriate standard of review. Fortunately,

         we have a relatively recent supreme court case to guide us. In Johnson, 237 Ill.

         2d at 93-94, as in our case, defendant moved to suppress statements that he had

                                              39 

No. 1-15-0575


  made at a police station following an allegedly illegal arrest, and our supreme

  court considered the same issue that is before us, namely, attenuation. The

  court explained the appropriate standard of review as follows:

        "In reviewing a trial court's ruling on a motion to suppress evidence, we

        apply the two-part standard of review adopted by the [United States]

        Supreme Court in Ornelas v. United States, 517 U.S. 690, 699 ***

        (1996). People v. Cosby, 231 Ill. 2d 262, 271 (2008), quoting People v.

        Luedemann, 222 Ill. 2d 530, 542-43 (2006). Under this standard, we give

        deference to the factual findings of the trial court, and we will reject

        those findings only if they are against the manifest weight of the

        evidence. Cosby, 231 Ill. 2d at 271, quoting Luedemann, 222 Ill. 2d at

        542-43. However, a reviewing court ' "remains free to undertake its own

        assessment of the facts in relation to the issues," ' and we review de novo

        the trial court's ultimate legal ruling as to whether suppression is

        warranted. Cosby, 231 Ill. 2d at 271, quoting Luedemann, 222 Ill. 2d at

        542-43." Johnson, 237 Ill. 2d at 88-89.

  Thus, we apply a bifurcated standard of review: (1) rejecting a trial court's

  factual findings only if they are against the manifest weight of the evidence, (2)

  but reviewing de novo the trial court's conclusion as to whether those facts

  satisfy the legal standard to warrant suppression. Johnson, 237 Ill. 2d at 88-89;

                                        40 

       No. 1-15-0575


         People v. Salgado, 396 Ill. App. 3d 856, 860 (2009); Jackson, 374 Ill. App. 3d

         at 102; People v. Clay, 349 Ill. App. 3d 517, 523 (2004); see also People v.

         Chambers, 2016 IL 117911, ¶ 76; People v. Pitman, 211 Ill. 2d 502, 512

         (2004).

¶ 91           A factual finding is against the manifest weight of the evidence only if

         the finding appears to be unreasonable, arbitrary, or not based on the evidence,

         or if the opposite conclusion is readily apparent. Vaughn v. City of Carbondale,

         2016 IL 119181, ¶ 23; see also In re M.I, 2016 IL 120232, ¶ 21; Beggs v. Board

         of Education of Murphysboro Community Unit School District No. 186, 2016 IL

         120236, ¶ 50.

¶ 92           De novo review means that we perform the same analysis a trial court

         would perform. Condon & Cook, L.L.C. v. Mavrakis, 2016 IL App (1st)

         151923, ¶ 55.

¶ 93                               B. Attenuation Factors

¶ 94           The State has the burden of proving attenuation. People v. Island, 385 Ill.

         App. 3d 316, 339 (2008); Jackson, 374 Ill. App. 3d at 102; Wilberton, 348 Ill.

         App. 3d at 85; Clay, 349 Ill. App. 3d at 523. To satisfy this burden, it must

         prove by clear and convincing evidence that the challenged evidence was

         obtained by means sufficiently distinguishable to be purged of the primary taint.

         Island, 385 Ill. App. 3d at 339; Jackson, 374 Ill. App. 3d at 102; Wilberton, 348

                                              41 

       No. 1-15-0575


         Ill. App. 3d at 85. Clear and convincing evidence means evidence greater than

         a preponderance of the evidence but less than proof beyond a reasonable doubt.

         Bazydlo v. Volant, 164 Ill. 2d 207, 213 (1995); Board of Trustees of University

         of Illinois v. Illinois Educational Labor Relations Board, 2015 IL App (4th)

         140557, ¶ 36; In re R.G., 165 Ill. App. 3d 112, 134 (1988).

¶ 95           To determine whether a statement is attenuated from an illegal arrest,

         courts generally consider the following factors:       (1) the proximity in time

         between the arrest and the statement; (2) the presence of intervening

         circumstances; (3) the provision of Miranda warnings; and (4) the flagrancy of

         the police misconduct. Johnson, 237 Ill. 2d at 93; Jackson, 374 Ill. App. 3d at

         102; Wilberton, 348 Ill. App. 3d at 85; Clay, 349 Ill. App. 3d at 523. Of these

         four factors, the presence of intervening circumstances and the flagrancy of the

         police conduct are the most important. Salgado, 398 Ill. App. 3d at 860;

         Jackson, 374 Ill. App. 3d at 102; Wilberton, 348 Ill. App. 3d at 85; Clay, 349

         Ill. App. 3d at 523.

¶ 96           Our supreme court has instructed that these four factors are to be

         "include[d]" in an attenuation analysis, suggesting that a court may consider

         other factors in an appropriate case. Johnson, 237 Ill. 2d at 93.         " ' "It is

         hornbook law that the use of the word including indicates that the specified list

         *** is illustrative, not exclusive." ' " (Emphasis and ellipsis in original.) People

                                                42 

        No. 1-15-0575


           v. Perry, 224 Ill. 2d 312, 330 (2007) (quoting Bryan A. Garner, A Dictionary of

           Modern Legal Usage 431 (2d ed. 1995) quoting Puerto Rico Maritime Shipping

           Authority v. Interstate Commerce Comm'n, 645 F.2d 1102, 1112 n. 26 (D.C.

           Cir. 1981)).

¶ 97	              For the purposes of our analysis, we accept the trial court's factual

           findings:19 (1) that the duration of the interrogation was short, lasting from 9

           p.m. on November 26, 2008, until 2:45 a.m. on November 27, 2006; (2) that the

           gunshot residue test was the circumstance which prompted defendant's

           incriminating statements; (3) that, during the detention which followed the

           initial arrest, the officers' tone of voice was cordial and defendant was not

           handcuffed; and (4) that the officers provided Miranda warnings and defendant

           agreed to speak with them.

¶ 98	                                 1. Temporal Proximity

¶ 99               As to the first attenuation factor, our supreme court has observed that

           "the temporal proximity between the arrest and the statement is often an

           ambiguous factor, the significance of which will depend on the circumstances

           of the case, including the conditions under which the time passes." Johnson,

           237 Ill. 2d at 93-94 (citing People v. Morris, 209 Ill. 2d 137, 160 (2004);
              19
                 In other words, even if we assume arguendo that the trial court's factual
        findings were not against the manifest weight of the evidence, we cannot find,
        applying a de novo standard of review, that these facts satisfied the State's burden
        of proving attenuation by clear and convincing evidence.
                                                 43
        No. 1-15-0575


          People v. White, 117 Ill. 2d 194, 223-24 (1987)); Salgado, 396 Ill. App. 3d at

          866 ("an ambiguous factor"); Jackson, 374 Ill. App. 3d at 104; Clay, 349 Ill.

          App. 3d at 523 ("an ambiguous factor"). The ambiguity stems from the fact

          that, while a lengthy lapse of time may permit the accused "to reflect on his

          situation," a lengthy lapse of time may also enhance the coercive nature of a

          custodial setting. Jackson, 374 Ill. App. 3d at 104 ("the inordinate length" of

          defendant's 50-hour detention "weighs against attenuation"); Wilberton, 348 Ill.

          App. 3d at 86; see also Salgado, 396 Ill. App. 3d at 867 ("the lapse of time" is

          "a factor that cut[s] both ways").

¶ 100           Since, in the case at bar, the six-hour lapse of time was—as the trial court

          found—short, the duration did not permit independent, attenuated reflection

          (People v. Austin, 293 Ill. App. 3d 784, 788 (1997) ('[t]he mere passage" of five

          hours was "not sufficient to purge the taint of an illegal arrest)). Thus, we turn

          our focus to the remaining factors. Wilberton, 348 Ill. App. 3d at 86 ("our focus

          must be on the *** remaining factors" when this factor is ambiguous).

¶ 101                             2. Intervening Circumstances

¶ 102           The second factor, intervening circumstances, actually involves two

          separate considerations:    (a) whether the police had separate, "intervening

          probable cause" to justify the arrest (Johnson, 237 Ill. 2d at 94; Wilberton, 348

          Ill. App. 2d at 87 ("Illinois courts repeatedly have found intervening probable

                                                44 

        No. 1-15-0575


          cause supports attenuation.")); and (b) whether there were intervening events

          which prompted or induced defendant's confession. Jackson, 374 Ill. App. 3d at

          105.

¶ 103                            a. Intervening Probable Cause

¶ 104            Concerning the first, our supreme court has held that intervening

          probable cause weighs heavily in favor of attenuation:

                    " ' Had the officers decided at this time that defendant's initial

                 detention was illegal, they could have released him and then, based upon

                 the probable cause that developed independently of his initial arrest,

                 immediately arrested him again. Under this scenario, there would be no

                 question that defendant's statements and confession would be admissible.

                 It follows, then, that the probable cause that would support a second

                 arrest only minutes after defendant's first arrest also serves to break the

                 causal connection between defendant's first illegal arrest and the

                 statements ***.' " Johnson, 237 Ill. 2d at 94 (quoting Morris, 209 Ill. 2d

                 at 159). See also Wilberton, 348 Ill. App. 3d at 87.

          In the case at bar, the State does not argue that the police had any intervening

          probable cause between the time of defendant's arrest and his statement.




                                                45 

        No. 1-15-0575


¶ 105                                 b. Intervening Event

¶ 106           In addition to providing probable cause, an intervening circumstance can

          also be an event that prompts or induces a voluntary desire to confess, thereby

          breaking the causal connection between the illegal arrest and the confession.

          Jackson, 374 Ill. App. 3d at 105; Wilberton, 348 Ill. App. 3d at 86. However,

          "[i]t cannot be [1] something that was obtained illegally[, such as] statements

          from unlawfully arrested codefendants," or [2] "information obtained by

          exploiting the illegality of the defendant's detention," such as "a polygraph

          examination conducted during the defendant's illegal detention." Jackson, 374

          Ill. App. 3d at 105; see also Clay, 349 Ill. App. 3d at 524 (a codefendant's

          statement, which was suppressed as the product of police misconduct, cannot be

          used as an intervening circumstance); Franklin, 115 Ill. 2d at 334 (defendant's

          polygraph examination was "a form of interrogation" and thus his "willingness

          to submit it" did not purge the taint of his illegal arrest; and the examination

          itself was "a consequence of the illegal detention").

¶ 107           The trial court found that the bogus gunshot residue test was the event

          that prompted defendant's incriminating statements, and the court's factual

          finding is not against the manifest weight of the evidence.          Defendant

          steadfastly maintained his innocence through the night and despite hours of




                                                46 

        No. 1-15-0575


          questioning but—as the State forthrightly admits in its brief—he confessed in

          under five minutes after the bogus test.

¶ 108           However, applying de novo review, we cannot agree with the trial court's

          legal conclusion that this event was an intervening circumstance that helped

          purge the taint of the prior illegal arrest. Like a polygraph examination, the

          bogus gunshot residue test was used, in this instance, as a form of interrogation,

          and it was also a consequence of the illegal arrest and the resulting detention.

          Franklin, 115 Ill. 2d at 334; Jackson, 374 Ill. App. 3d at 105. Similar to a

          codefendant's confession that was suppressed due to police misconduct (Clay,

          349 Ill. App. 3d at 524), the bogus test was, itself, a form of misconduct. Thus,

          the bogus test cannot serve to purge the taint of the prior illegal arrest.

¶ 109           Our supreme court and this court have found that even a validly given

          polygraph test cannot be an intervening circumstance that purges the taint of an

          illegal arrest. Franklin, 115 Ill. 2d at 334; Jackson, 374 Ill. App. 3d at 105. In

          Franklin, after being informed that he had failed a polygraph test, defendant

          confessed, and our supreme court found that these valid test results did not

          purge the taint of his prior illegal arrest, and thus suppression of his subsequent

          confession was required. Franklin, 115 Ill. 2d at 334. If a valid test cannot

          purge the taint, then a completely bogus test certainly cannot.




                                                  47 

        No. 1-15-0575


¶ 110              In an attempt to distinguish Franklin and Jackson, the State argues in its

           brief to this court that, "[o]f course, polygraph tests are unreliable and

           inadmissible." So is a bogus gunshot residue test.

¶ 111              The State cites cases from the 1980's and early 1990's in which the police

           lied to defendants and the subsequent confessions were still admitted as

           voluntary under the due process clause. E.g. People v. Melock, 149 Ill. 2d 423,

           450 (1992) (while deception weighs against a finding of voluntariness and is a

           relevant factor, it may be outweighed by a consideration of the totality of the

           circumstances).20 However, voluntariness under the due process test is not the

           issue in front of us. The question here is: when a custodial bogus test is the

           primary event prompting a defendant's confession, does that bogus test purge

           the taint of a prior illegal arrest under the fourth amendment? As we already

           observed above, if a validly administered test does not purge the taint, a bogus

           test cannot possibly purge it.

¶ 112              The State also argues that there were other intervening circumstances,

           prior to the gunshot residue test, which prompted defendant's confession.21

              20
                  The State cites People v. Holland, 121 Ill. 2d 136, 154 (1987). However
        the supreme court concluded that it found "unconvincing defendant's contentions
        that [the officer]'s statement was false or misleading." Holland, 121 Ill. 2d at 155.
              21
                  The State acknowledges in its brief that the trial court ignored all these
        other alleged "intervening circumstances," and argues that we should review this
        part of the trial court's decision de novo.
                                                  48
        No. 1-15-0575


           First, none of this information caused defendant to confess. Although the

           police confronted him with other information, defendant steadfastly maintained

           his innocence, agreeing to both a lie detector test and a gunshot residue test to

           prove he was innocent. Second, this court has no idea whether the bulk of this

           other information was true, or bogus like the gunshot residue test.

¶ 113              As we observed above, the video depicted: (1) the police suggesting that

           Rocio's boyfriend had already identified defendant from a photo array; 22 (2) the

           police indicating to defendant that individuals named "Alejandro" and

           "Alfredo"23 had separately told them that defendant had left his home before 7

           p.m. on the night of the murder wearing a black hooded sweatshirt and that the

           two men knew it was before 7 p.m. because their soap operas had not yet

           started; (3) the police informing defendant that they had discovered a receipt in

           defendant's room which showed that defendant was at a market at 6:14 p.m. on

           the night of the murder and then showing defendant the receipt; (4) and the


              22
                 On the video, the police officers stated: "We – the Rocio's boyfriend, she
        was with him, when this happened. We showed him this. *** And whose picture
        do you think he picked out." They also stated: "Why do you think Rocio's
        boyfriend – he doesn't know you and you don't know him -- *** No and why
        would he – he doesn’t know you. We didn't tell him who you were. We showed
        him this and who do you think he picked out?"
              23
                  In an earlier part of the video which the jury did not view, defendant stated
        that, on the night of the murder, he was with his two friends and roommates,
        Alejandro and Alfredo, for a portion of the evening. Defendant did not state their
        last names.
                                                  49 

        No. 1-15-0575


          police performing a gunshot residue test on defendant's hands and informing

          defendant that the result was positive for the presence of gunshot residue.

¶ 114             However, none of these alleged facts were substantiated at trial. First,

          although the jury viewed the police indicating that Guzman, Rocio's boyfriend,

          had positively identified defendant, Guzman testified at trial that he did not

          observe the shooter's face. Second, although the jury viewed the police telling

          defendant that "Alejandro" and "Alfredo" had informed them that defendant had

          left his home before 7 p.m. wearing a black hooded sweatshirt, no one by either

          name testified at trial. Third, although the jury viewed the police informing

          defendant that they had discovered a receipt in his room showing that defendant

          was at a market at 6:14 p.m., no such receipt was introduced at trial. And last,

          but certainly not least, we now know that the gunshot residue test was a bogus

          test.

¶ 115             The fact that police confronted defendant with, which was substantiated

          at trial, was the fact that a gun holster had been found in defendant's vehicle.

          However, after being confronted with this fact, defendant did not confess for

          some time and, even after he did confess, he continued to maintain that this

          holster was not his. Confrontation with the fact of the holster discovery appears

          to have little to do with defendant's confession. As a result, we are not




                                                50 

        No. 1-15-0575


          persuaded by the State's argument there were other valid, intervening

          circumstances.

¶ 116            The State also argues in its brief, in one line, that the gunshot residue test

          was not a form of interrogation. " 'Interrogation' refers to express questioning,

          as well as to "any words or actions on the part of the police, other than those

          normally accompanying arrest and custody that the police should know are

          reasonably likely to elicit an incriminating response from the suspect.' "

          Jackson, 374 Ill. App. 3d at 106 (quoting People v. Olivera, 164 Ill. 2d 382,

          391-92 (1995)). The State admits elsewhere in its brief that "the test was

          certainly aimed at eliciting a confession." Since the test was completely bogus,

          there was no other reason for the police to administer it, except for their belief

          that it was " 'reasonably likely to elicit an incriminating response from the

          suspect.' " Jackson, 374 Ill. App. 3d at 106 (     quoting Olivera, 164 Ill. 2d at

          391-92). Detective Miranda testified that the test was merely "a ruse to get

          [defendant] to speak" to them. Supra ¶ 70. Thus, the test was a form of

          custodial interrogation, which occurred during a detention that had been

          obtained solely through an illegal arrest. Far from purging the taint, the test

          exploited the illegality of the original arrest.

¶ 117            In conclusion, we find that the factor of intervening circumstances does

          not weigh in favor of attenuation.

                                                  51 

        No. 1-15-0575


¶ 118                                     3. Miranda Rights

¶ 119              The third factor we must consider is the provision of Miranda warnings.

           Although police cannot dissipate the taint of an illegal arrest by simply giving

           Miranda warnings, the presence of warnings prior to an interrogation carries

           some weight. Jackson, 374 Ill. App. 3d at 102; Wilberton, 348 Ill. App. 3d at

           85 ("the presence of the warnings prior to interrogation carries some weight"

           where "[s]ix times defendant waived his rights and agreed to give a statement").

           See also Johnson, 237 Ill. 2d at 95 ("While the presence of Miranda warnings

           alone is not sufficient to purge the taint of illegality from a illegal arrest, it is a

           factor to be considered.").

¶ 120              In the case at bar, the trial court found that the police provided Miranda

           warnings. In addition, the trial court found that "defendant not only understood

           the rights, but that he, in fact, agreed to speak to the police officers waiving

           those rights."24 However, the warnings occurred once at the very beginning of

           the six-hour interrogation and were not repeated, even after defendant asked

           what his rights were—immediately prior to the test. When the officers asked

           defendant if they had his "permission" to "check" his hands for gunshot residue,

           defendant replied: "what are my rights?" Instead of informing him of his
              24
                 Based on a review of the transcript alone, this court had concluded in our
        prior decision that defendant's " 'hmm-hmm' " responses failed to "reveal whether
        defendant affirmatively waived his rights." Hernandez, 2013 IL App (1st) 103447­
        U, ¶ 47.
                                                   52
        No. 1-15-0575


          rights, one of the officers stated: "I'm asking you. If you don't want it we won't

          do it." Thus, applying a de novo standard of review to the trial court's factual

          finding, we conclude that the Miranda warnings carry some weight but not

          much under the circumstances of this case.

¶ 121                        4. Flagrancy of the Police Misconduct

¶ 122           In determining whether a statement was the product of an illegal arrest,

          we consider lastly the flagrancy of the police misconduct

¶ 123           With respect to this fourth factor, our supreme court has explained that

          police misconduct is flagrant when it is carried out in such a manner as to cause

          surprise, fear, confusion, or when it has a quality of purposeful or intentional

          misconduct. Johnson, 237 Ill. 2d at 94; People v. Foskey, 136 Ill. 2d 66, 86

          (1990); Jackson, 374 Ill. App. 3d at 107; Wilberton, 348 Ill. App. 3d at 89.

¶ 124           The trial court found that the officer's tone during the detention following

          the initial arrest was cordial, and that defendant was not handcuffed during the

          ensuing detention. However, the trial court did not consider the flagrancy of the

          police misconduct during the initial arrest, when over 20 officers arrived at

          defendant's residence and handcuffed him. Hernandez, 2013 IL App (1st)

          103447-U, ¶ 7 ("Approximately 24 officers," some with "their weapons drawn"

          arrived at defendant's residence.)



                                                53 

        No. 1-15-0575


¶ 125           In the case at bar, the State introduced no evidence at the attenuation

          hearing concerning the initial arrest, and the trial judge repeated several times

          that he was not the judge who heard the original suppression motion and

          hearing.

¶ 126           The only witness at the attenuation hearing who testified that he was at

          defendant's building on the night of the arrest was Detective Kirby. Defendant

          was already in handcuffs and being walked to Kirby's vehicle in the company of

          two to three other officers, when Kirby first saw him. Kirby was not asked

          whether this was a high-crime area, but he did testify that it was "a mixed

          residential business area" and that he was not aware of gang activity there.

          Kirby was not asked what prompted so many officers to arrive on the scene, and

          he did not know whether any of these officers had drawn their guns during the

          20 minutes when the initial arrest occurred.

¶ 127           Detective Kirby and Fernandez's testimony did establish that defendant

          had been speaking with only one or two officers over the phone prior to his

          arrest and then, suddenly, over 20 officers appeared at his home.            The

          appearance of so many unexpected officers certainly has the potential "to cause

          surprise, fear and confusion." See Johnson, 237 Ill. 2d at 94.

¶ 128           Although the trial court found that the officers' tone was cordial during

          the ensuing detention, "[t]he apparent purpose of the defendant's arrest and

                                                54 

        No. 1-15-0575


          detention was to enable the police to conduct an expedition for evidence in the

          hope that something might turn up, a practice that the Supreme Court has

          condemned." Franklin, 115 Ill. 2d at 335. See also Clay, 349 Ill. App. 3d at

          525 ("police act with an improper purpose when they arrest persons as part of

          an expedition in the hope of developing probable cause").          The officers

          repeatedly told defendant he was lying and confronted him with a bogus test in

          order to induce him to confess. Franklin, 115 Ill. 2d at 335 ("The detention was

          a continuing violation."). The officers lacked probable cause at the time of

          defendant's arrest and were on an expedition to find it. Detective Miranda

          conceded that the test was merely "a ruse to get [defendant] to speak" to them.

          Supra ¶ 70. Thus, this factor does not help the State meet its burden of showing

          clear and convincing evidence of attenuation. Clay, 349 Ill. App. 3d at 525

          (finding a lack of attenuation where the "police arrested defendant on a fishing

          expedition for evidence").

¶ 129           In sum, after having reviewed all the factors, we conclude that the

          statement was not attenuated from the taint of the illegal arrest, (1) where the

          duration between the illegal arrest, as found by the trial court, was short and

          thus did not provide time for independent reflection; (2) where the event that

          prompted the confession, as found by the trial court, was the bogus gunshot

          residue test, and it did not qualify as an intervening circumstance purging the

                                               55 

        No. 1-15-0575


          taint of the illegal arrest, since it was itself a form of interrogation occurring as

          a consequence of the illegal arrest and a form of misconduct; (3) where Miranda

          warnings were provided once at the start of the six-hour interrogation but were

          not repeated again, even when defendant specifically asked what his rights

          were; and (4) where the State introduced no evidence at the attenuation hearing

          concerning the circumstances of the initial arrest, and thus the trial judge, who

          had not presided at the original suppression hearing, had no information on

          which to determine whether or not the initial illegality constituted egregious

          police conduct, and where the police were on a fishing expedition during the

          subsequent detention.

¶ 130              As we discussed above, in addition to the four factors that our supreme

          court specifically listed, we may consider additional, relevant factors. Supra

          ¶ 96. Further supporting our holding is the fact that we cannot condone the

          manufacture of false evidence by the police—namely, the false positive result

          to a fake test—which was then presented to the jury during the playing of the

          video.

¶ 131              For the foregoing reasons, we conclude that the statement was not

          attenuated from the illegal arrest and must be suppressed under the fourth

          amendment.




                                                 56 

        No. 1-15-0575


¶ 132                                 II. Double Jeopardy

¶ 133                                     A. The Clause

¶ 134           Next, we must consider whether we may remand for a new trial.

¶ 135           "The double jeopardy clause of the fifth amendment to the United States

          Constitution, made applicable to the states through the fourteenth amendment,

          provides that no person shall be subject for the same offense to be twice put in

          jeopardy of life or limb.' U.S. Const., amends. V, XIV." People v. Bellmyer,

          199 Ill. 2d 529, 536-37 (2002). The Illinois Constitution (Ill. Const. 1970, art.

          I, § 10) and Illinois statute (720 ILCS 5/3-4(a) (West 2012)) provide similar

          guarantees. Bellmyer, 199 Ill. 2d at 537. "The cornerstone of the double

          jeopardy clause is 'that the State with all its resources and power should not be

          allowed to make repeated attempts to convict an individual for an alleged

          offense, thereby subjecting him to embarrassment, expense and ordeal and

          compelling him to live in a continuing state of anxiety and insecurity, as well as

          enhancing the possibility that even though innocent he may be found guilty.' "

          People v. Williams, 188 Ill. 2d 293, 307 (1999) (quoting Green v. United States,

          355 U.S. 184, 187-88 (1957)).

¶ 136              When the double jeopardy clause applies, a reviewing court must

          examine the sufficiency of the evidence prior to a remand for a new trial and

          determine "whether, after viewing the evidence in the light most favorable to

                                                57 

        No. 1-15-0575


          the State, any rational trier of fact could have found the essential elements of

          the crime beyond a reasonable doubt." People v. Lopez, 229 Ill. 2d 322, 367

          (2008).

¶ 137                             B. State's Petition for Rehearing.

¶ 138               After we filed our original opinion, the State filed a petition for

          rehearing, in which it stated that it did "not dispute the result reached by the

          appellate majority." Thus, the State's petition was not asking us to change our

          result.

¶ 139               However, the State asked both the majority and the dissent to clarify the

          law which we all relied on. In our prior opinion, both the majority and the

          dissent examined what evidence was left—after eliminating the confession—in

          order to determine whether there was sufficient evidence to overcome a double

          jeopardy bar.

¶ 140                  The State pointed out—correctly–that, in a double jeopardy analysis,

          we may consider the confession as well, even though a second jury will never

          be aware of that statement because we suppressed it. Lopez, 229 Ill. 2d at 367.

¶ 141                  On the surface, that appears to defy common sense—why consider a

          statement that no juror will ever be aware of? The reason, according to our

          supreme court, is that the purpose of the double jeopardy bar is to prevent the

          State from having a second bite at the apple—from gaining a second trial solely

                                                  58 

        No. 1-15-0575


           for the purpose of presenting evidence that was not offered at the first trial.

           Lopez, 229 Ill. 2d at 367. See also People v. Olivera, 164 Ill. 2d 382, 393 (1995)

           ("The double jeopardy clause forbids a second, or successive, trial for the

           purpose of affording the prosecution another opportunity to supply evidence it

           failed to muster in the first proceeding." (Emphasis added.)). Thus, a reviewing

           court, when evaluating a possible double jeopardy bar, may consider all the

           evidence at the first trial—even if it will be barred from the second one. Lopez,

           229 Ill. 2d at 367; Olivera, 164 Ill. 2d at 393.

¶ 142                                        C. Waiver

¶ 143              Before we may proceed to analyze the double jeopardy issue, we must

           consider, as a preliminary issue, whether defendant waived this issue for our

           consideration.

¶ 144              In the case at bar, defendant did not argue that the evidence was

           insufficient to convict him, 25 and he made no claims that a retrial was barred by

           double jeopardy. In addition, defendant's briefs to this court asked repeatedly

           for a remand for further proceedings.




              25
                  In our prior order, we listed defendant's claims on appeal, and there was
        no claim of insufficient evidence. Hernandez, 2013 IL App (1st) 103447-U, ¶ 2.
        Similarly, in the instant appeal, defendant does not claim insufficient evidence or
        that a retrial is barred by double jeopardy concerns.
                                                   59
        No. 1-15-0575


¶ 145             Our supreme court has issued conflicting opinions about whether a

          reviewing court is obligated to consider double jeopardy, if a defendant fails to

          raise as an issue either double jeopardy or sufficiency of the evidence. Not

          surprisingly, there are also conflicting appellate court opinions on the subject as

          well.

¶ 146             For example, in Lopez, 229 Ill. 2d at 366-67, our supreme court held,

          unequivocally, that a reviewing court is "required" to consider double jeopardy

          concerns, whether or not a defendant raised the issue of double jeopardy or

          sufficient evidence. Our supreme court stated:

                  "We are bound, however, to consider the double jeopardy implications

                  *** Defendant does not raise any claims concerning the sufficiency of

                  the evidence against him and did not assert that his conviction should be

                  vacated outright because the State did not meet its burden at trial.

                  Instead, defendant seeks reversal of his conviction and remand for a new

                  trial. Retrial, however, raises double jeopardy concerns, and we are

                  therefore required to consider the sufficiency of the evidence against

                  defendant." (Emphasis added.) Lopez, 229 Ill. 2d at 366-67.

          See, e.g., People v. Little, 2016 IL App (3d) 140124, ¶ 62 ("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

                                                60 

        No. 1-15-0575


          sufficiency of the evidence against defendant for double jeopardy purposes"

          (citing Lopez, 229 Ill. 2d at 366-67)).

¶ 147           In marked contrast to Lopez, our supreme court in People v. Patrick, 233

          Ill. 2d 62, 76 (2008), reversed and remanded for a new trial but held that, since

          the defendant had not argued the insufficiency of the evidence, there was no

          double jeopardy bar. Specifically, the Patrick court stated:

                    "We note that [the defendant] has not argued the evidence in this case

                was insufficient to convict him. Thus, there is no double jeopardy

                impediment to a new trial." (Emphasis added.) Patrick, 233 Ill. 2d at 76.

          See, e.g., People v. Bannister, 378 Ill. App. 3d 19, 29 (2007) ("the

          constitutional right to not be twice put in jeopardy for the same offense is a

          personal privilege which may be forfeited").

¶ 148           Faced with dueling supreme court and appellate court opinions on the

          issue of waiver, we will, in an exercise of caution, consider whether double

          jeopardy bars a retrial, even though defendant has neither raised this issue nor

          challenged the sufficiency of the evidence on this appeal or on his prior appeal.

¶ 149                                   D. The Evidence

¶ 150           As noted above, we may consider all the evidence at the first trial, for the

          reasons explained by our supreme court in Lopez:



                                                    61 

        No. 1-15-0575


                    "The double jeopardy clause *** does not *** preclude retrial where a

                conviction has been set aside because of an error in the proceedings

                leading to the conviction. [Citation.] The State cannot retry a defendant

                once it has been determined that the evidence introduced at trial was

                insufficient to sustain a conviction. [Citation.] Yet, 'retrial is permitted

                even though evidence is insufficient to sustain a verdict once erroneously

                admitted evidence has been discounted, and for the purpose of double

                jeopardy all evidence submitted at the original trial may be considered

                when determining the sufficiency of the evidence.' " (Emphasis added.)

                Lopez, 229 Ill. 2d at 367 (quoting People v. Olivera, 164 Ill. 2d 382, 393

                (1995)).

           Since the defendant's conviction had been set aside because of trial error, the

          Lopez court stated it would "consider whether the evidence" at the first trial,

          "including the now-suppressed *** statement," was sufficient to convict.

          Lopez, 229 Ill. 2d at 367.

¶ 151           As we noted above, "[t]he 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."

          Lopez, 229 Ill. 2d at 367. This means that we consider only the evidence that a

          "rational trier" would consider. Lopez, 229 Ill. 2d at 367.          Thus, if the

                                                62 

        No. 1-15-0575


           prosecution had presented the results of witchcraft, for example, we would not

           be obliged to consider those results as evidence, even if they had been admitted

           at the first trial. Similarly, even though the jury was presented with the result of

           a bogus gunshot residue test as though it was a real test, we know better now

           and we are under no obligation to accept this pretense as reality.

¶ 152              When evaluating the sufficiency of the evidence, a reviewing court may

           consider the quality and nature of the evidence presented.           See People v.

           Ellison, 2013 IL App (1st) 101261, ¶ 14. Thus, for example, this court rejected

           the State's assertion that evidence that a defendant possessed a cell phone

           showed an intent to sell drugs. Ellison, 2013 IL App (1st) 101261, ¶ 26 ("the

           possession of the cellular phone provides little, if any, support to a finding that

           defendant intended to distribute drugs").

¶ 153              Similarly, in the case at bar, we are unsure how much weight any rational

           trier of fact would attribute to this confession made after defendant was told the

           results of the bogus test.26 Thus, we accord the confession some weight, but

           also consider whether there are separate, corroborating circumstances. Lopez,

           229 Ill. 2d at 368 (finding that a rational trier of fact could have found

           defendant guilty beyond a reasonable doubt based on the now-suppressed

           confession and other corroborating circumstances).
              26
               Since no juror, rational or otherwise, will ever see this confession, we are
        engaging here in a completely hypothetical exercise.
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¶ 154              Here, the other evidence admitted at trial included: (1) the boyfriend's

           testimony that the murderer was wearing a black sweatshirt; (2) a police

           officer's testimony that he discovered some burnt black clothing near the rear

           garage door of defendant's building; (3) the bouncer's testimony that he

           observed defendant's vehicle parked near the murder scene, shortly before the

           murder; 27 (4) an officer's testimony that he discovered multiple small broken-

           glass fragments on the driver's side front-seat floor mat of defendant's vehicle

           and a gun holster on the center console hump; (5) testimony by a police officer

           that the victim's driver-side window was shattered, and testimony by an

           evidence technician that there were glass fragments in her hair; and (6)

           evidence of a possible motive based on the recent break-up of a long-term

           romantic relationship between defendant and the victim, 28 and the victim's

           murder while in the company of her new boyfriend.

¶ 155              The glass fragments found in defendant's vehicle are significant because

           the gunshot shattered the window of the victim's vehicle, spraying glass

           fragments into the victim's hair. Based on this evidence, one could argue that

              27
                  David Carlson testified that he observed a truck near the murder scene on
        November 25, 2008, at 8 p.m. and Detective Hugo Villa testified that he responded
        to a call concerning the victim's death at 8:11 p.m. Carlson testified that he later
        picked out the same truck on his own in the police parking lot.
              28
                At trial, Jose Munoz testified that his sister Rocio, the victim, had dated
        defendant for three or four years, until six months before she died.
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        No. 1-15-0575


          the glass fragments also sprayed on to defendant at the time of the shooting and

          then dropped of his clothes when he entered his own vehicle. The burnt black

          clothing found outside of defendant's building is significant, because the

          victim's boyfriend testified that the shooter wore a black hoodie, and the

          attempted destruction of the clothing arguably indicates an awareness of guilt.

          The bouncer's testimony that defendant's vehicle was parked near the murder

          scene at the time of the murder is significant because the bouncer was unrelated

          and appeared to have no motive to lie. The summary execution of the victim in

          front of her new boyfriend certainly suggests a motive; and the gun holster

          found in defendant's vehicle and the presence of the vehicle near the crime

          scene indicates both opportunity and means.

¶ 156           Based on a review of all the evidence presented at the first trial, we

          reverse and remand for a new trial and proceedings consistent with this opinion.

¶ 157                                     III. Conflict

¶ 158           In addition to the attenuation issue, defendant claims on this appeal: (1)

          that his counsel at the attenuation hearing had a conflict of interest, since the

          appellate court permitted defendant on remand to address his claim that his trial

          counsel was ineffective for failing to move to suppress his statement as

          involuntary, and this same trial counsel continued to represent defendant on

          remand (Hernandez, 2013 IL App (1st) 103447-U, ¶ 56 (permitting the parties

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        No. 1-15-0575


          " 'an opportunity to develop a factual record' " (quoting Bew, 228 Ill. 2d at

          135)); and (2) that this counsel was ineffective for failing to move to suppress

          defendant's statement as involuntary (Hernandez, 2013 IL App (1st) 103447-U,

          ¶ 56 ("depending on what is entered into the record on remand, ineffectiveness

          *** could be addressed on direct appeal").

¶ 159           On April 3, 2014, prior to the attenuation hearing, defendant requested

          new counsel in open court, stating that his counsel "doesn't want to bring [to]

          the Judge's attention some important points or issues that I believe is for my

          defense." The trial court did not inquire what the points or issues were, so we

          do not know whether they related to defendant's claim, on his prior appeal and

          on this appeal, that his counsel was ineffective for failing to move to suppress

          his statement as involuntary.

¶ 160           In addition, at the end of the attenuation hearing, defendant informed the

          trial court that he wanted to testify at the attenuation hearing, and his counsel

          would not allow him to do so. We have no idea what defendant wanted to

          testify to and whether it related to his ineffectiveness claim.

¶ 161           Since we are reversing and remanding based on the attenuation issue, we

          do not need to reach defendant's claims that reversal is also warranted on the

          grounds that his counsel had a conflict at the attenuation hearing and that his



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          counsel was ineffective. However, on remand, we direct the trial court to

          appoint new counsel.

¶ 162                                   CONCLUSION

¶ 163           For the foregoing reasons, we reverse and remand for a new trial.

¶ 164           On a prior appeal, we found that defendant's arrest was illegal, and

          vacated defendant's conviction and remanded for an attenuation hearing. On

          remand, the trial court conducted the attenuation hearing and concluded that

          defendant's statement was attenuated from the illegal arrest, and the case came

          back to us on appeal after the hearing.

¶ 165           This opinion concludes: (1) that defendant's statement was not attenuated

          from an illegal arrest; and (2) that the State presented sufficient evidence such

          that a retrial does not violate the double jeopardy clause. As a result, this court

          reverses and remands for a new trial.

¶ 166           Reversed and remanded.

¶ 167           JUSTICE LAMPKIN, specially concurring.

¶ 168           I agree that defendant’s statement was not obtained by means sufficiently

          distinguishable to be purged of the primary taint of his illegal arrest. See People

          v. Lovejoy, 235 Ill. 2d 97, 130 (2009) (where a defendant was illegally detained,

          the court must determine whether a subsequent statement bears a sufficiently

          close relationship to the underlying illegality by considering whether the

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          evidence was obtained “by means sufficiently distinguishable to be purged of

          the primary taint” of illegality). Therefore, his statement and any other evidence

          flowing from his illegal arrest must be suppressed.

¶ 169           I would add to the attenuation analysis the following. I do not agree that

          the giving of Miranda warnings should be given any weight in this case.

          Defendant never answered out loud that he understood the Miranda warnings

          and then, when asked if he would speak to the police officers, there was a lack

          of clear assent by defendant to talk with them. Furthermore, when one officer

          left the interview room and another officer arrived, defendant was not given

          Miranda rights again, which could have provided an opportunity to demonstrate

          that he understood his rights and that he was willing to talk to the new officer

          who then participated in the discussion. People v. Scott, 366 Ill. App. 3d 638,

          646 (2006) (while apprising a defendant of his Miranda rights on multiple

          occasions alone is not sufficient to purge defendant’s statement of the taint of

          his unlawful arrest, this factor obviously weighs in favor of a finding of

          attenuation).

¶ 170           I also disagree with the trial court’s factual findings and the majority’s

          adoption of the finding that the officer’s tone was “cordial.” In the last hour of

          defendant’s interrogation, the officers repeatedly raised their voices when

          speaking to defendant, repeatedly talked over him when he was trying to answer

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          questions, and called him a liar no less than 20 times. They also accused him of

          lying in front of God. Defendant was seated in a small room with a small table

          in front of him and his back to the wall. An officer was sitting next to

          defendant, facing him and, at times, their faces were less than two feet apart.

          Another officer sat on the other side of the table, no more than three to four feet

          from defendant. Defendant was basically pinned in a corner. This certainly was

          not a “cordial” environment.

¶ 171           Regarding the double jeopardy analysis, I would add the following

          observations. The double jeopardy clause only precludes the State from retrying

          a defendant after a reviewing court has determined that the evidence introduced

          at trial was legally insufficient to convict; it does not preclude a retrial of a

          defendant whose conviction has been set aside because of an error in the

          proceedings leading to the conviction. People v. Olivera, 164 Ill. 2d 382, 393

          (1995). Furthermore, retrial is permitted even though, as is the case before us,

          the evidence is insufficient to sustain a verdict once the erroneously admitted

          evidence has been discounted. Id. at 393.

¶ 172           For purposes of determining the sufficiency of the evidence to convict, I

          have considered all the evidence admitted at the original trial. Id. at 393. I have

          considered the evidence of defendant’s videotaped statement, which we have

          suppressed. I also have considered other evidence that I believe would be

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No. 1-15-0575


  suppressed on remand as part of the fruit of the poisonous tree, including, but

  not limited to: (1) the fact that defendant owned a Ford F150 because that

  information was elicited from defendant during his illegal arrest; (2) Jose

  Hernandez’s consent to search the truck because the consent was invalid where

  the police knew at the time they obtained it that Jose lacked authority to provide

  such consent to search and defendant already had denied consent. See People v.

  Bochniak, 93 Ill. App. 3d 575, 576-77 (1981) (“the authority which justifies

  third-party consent rests on the mutual use of the property by persons generally

  having joint access or control for most purposes”); (3) the seizure and towing of

  defendant’s truck to the police lot where Mr. Carlson was able to identify it; (4)

  the evidence recovered from the search of defendant’s truck; and (5) defendant

  directing police officers around to various locations looking for the alleged

  murder weapon. When considering all of the evidence above, along with the

  additional evidence introduced at trial, a rational trier of fact could find the

  evidence was sufficient to convict defendant beyond a reasonable doubt.




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