The opinion of the court was delivered by: Justice Kapala
Modified Upon Denial of Rehearing
Defendant, Rene Soto, appeals his conviction in the circuit court of Du Page County of two charges of first-degree murder. In this appeal, he raises the following issues: (1) whether the trial court erred in ruling that he consented to have his conversation with a co-defendant at a detention facility electronically monitored; (2) whether he was denied his confrontation rights under the state and federal constitutions by the admission of his co-defendant's statement made at the detention facility; (3) whether the trial court erred in admitting defendant's refusal to provide handprinting exemplars; (4) whether the prosecutor made unfairly prejudicial misrepresentations and improper comments during closing argument; and (5) whether the trial court erred in refusing to instruct the jury on the offense of conspiracy to commit murder as a lesser included offense of murder by accountability. For the following reasons, we reverse both convictions and remand the cause for a new trial.
Defendant and a co-defendant, Raul Ceja, who was tried separately, were indicted for the shooting deaths of Richard Sanchez and Alfredo Garcia. The charges were based on a July 26, 1998, incident in which the victims, who were in a Lincoln Continental, were fatally shot by occupants of a Chevrolet Tahoe at the intersection of Oak Lawn and Grand Avenues in Elmhurst. The indictment against defendant contained five counts as to each victim. All 10 counts were premised on the same factual allegation that defendant "shot [the victim] with a handgun" combined with the operative language from the first-degree murder statute.
The evidence at trial established the following. On July 26, 1998, about 9:25 p.m., Kevin Oldaker and his wife were stopped for a red light at the corner of Grand and Oak Lawn Avenues in Elmhurst. There are four westbound lanes at that point of Grand Avenue with two lanes going straight and an inside left-turn lane and an outside right-turn lane. Oldaker's vehicle was in the right lane of the two through lanes. As they were waiting for the light to turn green, there was a Lincoln Continental sitting in the left lane of the through lanes next to the Oldaker vehicle. There were two male occupants in the front seat of the Lincoln.
As the light turned green, a Chevrolet Tahoe pulled into the westbound left-turn lane next to the Lincoln. At that point, Oldaker heard glass breaking and gunshots. He observed the front-seat passenger halfway out the front door of the Tahoe shooting a handgun at the Lincoln. There was also a passenger in the rear seat of the Tahoe with his hand sticking out of the rear passenger window shooting a handgun at the Lincoln. Stephanie Alfano, Oldaker's wife, also testified that the passenger in the back of the Tahoe shot several times at the Lincoln.
After the two occupants of the Tahoe shot several times at the Lincoln, the Tahoe made a U-turn so it was facing eastbound on Grand Avenue. After stopping, the driver fired several shots at the Lincoln. The Tahoe then sped off eastbound on Grand Avenue. The Lincoln made a U-turn in an apparent attempt to follow the Tahoe, but it went only a short distance before veering off the road and coming to a stop on the grass in front of a car dealership.
Kevin Lafin, an Elmhurst police officer, responding to a radio dispatch regarding the shooting, saw a Tahoe matching the suspects' vehicle on the Eisenhower Expressway. He observed three occupants in the Tahoe and followed it. He followed the Tahoe into an alley in Bellwood where it stopped in the 600 block of Marshall Avenue. Thereafter, three occupants exited and ran away. A nearby resident also saw three occupants exit the vehicle.
Officer Ackerman of the Broadview police department, along with his police dog, arrived at the scene where the Tahoe stopped. In the 600 block of Frederick Avenue in Bellwood, the dog began barking at a heavy clump of bushes. When he shined his flashlight into the bushes, Officer Ackerman observed two individuals hiding. Officer Ackerman described both as "profusely sweating, very nervous, and [looking] like they just finished running a marathon." The two individuals were defendant and Raul Ceja, both of whom were arrested.
A search of the area between where the Tahoe stopped and where defendant and Ceja were found revealed a Ruger 9-millimeter handgun in some bushes. After finding the Ruger, the police questioned defendant about the location of the second gun, and he directed them to a Smith & Wesson handgun, which was hidden in bushes near where the police found the Ruger. The police also found two discarded hooded sweatshirts in the same area they found the guns.
Following their arrests, defendant and Ceja were transported to the detention facility at the Elmhurst police department. Michael Lullo, a detective with the Elmhurst police department, met with defendant and advised him of his Miranda rights. Lullo spoke to defendant in English, defendant spoke to him in English, and he believed defendant understood English. Defendant admitted to Lullo he was a member of the Maywood Latin Kings street gang.
Defendant also made several statements to Detective Raymond Bradford of the Elmhurst police department while in the detention facility. Also present was an assistant State's Attorney from Du Page County, Jeffrey Kendall. Defendant admitted that he had been in the Tahoe and had run from it after it stopped. He also admitted that he was the occupant in the rear seat during the shooting and that he had accidentally shot out the rear passenger window. Defendant also told Detective Bradford there were only two guns, not three, used in the shooting. When Detective Bradford suggested to defendant they were driving around looking to steal another vehicle, defendant responded, "We had guns with us. We don't take guns when we go out to steal cars." Defendant also said he knew one of the victims was the owner of the Lincoln and a member of a rival gang, the Imperial Gangsters. Defendant described the Lincoln as one involved in previous drive-by shootings in Maywood. Defendant also admitted that all three occupants of the Tahoe, including himself, fired shots at the Lincoln's occupants. When Detective Bradford described a drive-by shooting at Ceja's residence on July 24, 1998, defendant agreed that Ceja was upset and that may have been what motivated Ceja to shoot at the Lincoln's occupants.
The physical evidence included 9-millimeter shell casings and fired bullets recovered from the scene, the Tahoe, and the victims' bodies. The police also recovered a 9-millimeter ammunition box from the Tahoe with defendant's fingerprint on it. The bullets removed from the bodies of the victims were fired from the Smith & Wesson handgun found in the bushes near where defendant and Ceja were hiding. Defendant's prints were also found in several places on the Tahoe. The fingerprint expert testified that "no two individuals have the same fingerprints."
Also pertinent to this appeal are several statements made by defendant and Ceja while they were in the detention facility at the Elmhurst police department that were overheard via an electronic monitoring system. Each of the cells in the detention area has a two-way sound system. That system includes a speaker in each cell that is visible to the occupant. There is a panel in the control area that has toggle switches that allow the operator to activate the system in any given cell. When the system is activated, it emits a loud beep, or alert tone, every 9 or 10 seconds, which is audible in each cell. Aside from the visible speaker and audible tone, there are no notices posted anywhere regarding the presence of the system or its capability for transmitting voices from the cell to the control room. The system is not operational at all times and is used when there is a concern for the detainee, an officer, or when the crime involved is serious.
Officer Jodi Bellis testified that on July 27, 1998, Ceja and defendant were held in two separate cells in the detention area. About 9:30 a.m., Bellis went into the detention area to tell defendant and Ceja to be quiet. She told defendant that she could hear what they were saying even when she was not in the room and that their conversations were being "monitored" at the front desk. She spoke in English but did not explain to defendant what she meant by the word "monitor."
Defendant and Ceja made several statements to each other while in the detention facility that were heard via the monitoring system. Because some of these statements were in Spanish, Officer Gonzalo Gomez, who understands both English and Spanish, was brought in to listen to and translate the conversations of defendant and Ceja. Gomez took notes, but no electronic recording was made.
Detective Bradford testified that while he was in the control room he heard Ceja say, "My parents sent my brother away," and defendant answered, "Yeah." Ceja further stated, "They're afraid they'll come after him. I hope the brothers don't get popped. They don't have any guns anymore," to which defendant said, "Yeah." Ceja also said, "The fat one, he was my sister's boyfriend. Boxer, he was from the jungle. He wasn't even banging anymore." Then both defendant and Ceja laughed.
According to Kendall, while he was listening he heard Ceja say, "They found the guns," to which defendant responded, "Yeah. Two. They showed me one." Ceja also said, "They found a lot of fingerprints in the truck. They got my prints. They got your prints. They got Capone's prints. They had a bunch they haven't told us about," to which defendant responded, "Yeah." Ceja also stated, "They say that guy is the guy that shot up our town."
Gomez testified that he heard one of the two say in Spanish, "Hey, they can hear what we say." Both Bradford and Kendall heard defendant say in English, "Hey, we're innocent." Defendant moved to suppress the statements ...