The opinion of the court was delivered by: Justice Garman
JUSTICE GARMAN delivered the judgment of the court, with opinion.
Chief Justice Kilbride and Justices Thomas and Karmeier concurred in the judgment and opinion.
Justice Burke dissented, with opinion, joined by Justices Freeman and Theis.
¶ 1 Defendant, Germill D. Murdock, was convicted following a jury
trial in the circuit court of Peoria County of first degree murder and
aggravated battery with a firearm. Defendant's conviction was affirmed
on appeal. Defendant then filed a post-conviction petition alleging
trial counsel was ineffective for failing to move to suppress
statements defendant had made to police. Defendant, a juvenile,
alleged his statements were the product of police coercion that
rendered them involuntary. After conducting an evidentiary hearing,
the trial court denied defendant's petition. The appellate court
reversed and remanded to the trial court for a suppression hearing.
Following the suppression hearing, the trial court denied defendant's
motion to suppress. The appellate court affirmed the denial of the
motion to suppress. No. 3-07-0438 (unpublished order under Supreme
Court Rule 23). Defendant appeals, arguing his statements were
involuntary, primarily due to the absence of a concerned
adult during his police detention. For the following reasons, we affirm the
decisions of the trial court and appellate court.
¶ 3 Defendant, a 16-year-old juvenile, was indicted on October 9, 2001, in Peoria County on one count of first degree murder (720 ILCS 5/9-1(a)(1) (West 2000)), one count of aggravated battery with a firearm (720 ILCS 5/12-4.2(a)(1) (West 2000)), and one count of aggravated discharge of a firearm (720 ILCS 5/24-1.2(a)(2) (West 2000)) related to the death of Eric Eppinger and wounding of Sam Clark, Jr.
¶ 4 Defendant's first two jury trials resulted in mistrials due to deadlocked juries. Defendant's third jury trial began in March 2003. Evidence presented by the State established that on September 4, 2001, defendant drove Shereaf Fleming and Cortez Trapps to Logan Park in Peoria, Illinois. Upon arriving at Logan Park, Trapps and Fleming produced guns, pulled their shirts up to obscure their faces, and left defendant's vehicle. Trapps and Fleming approached the victims, Eric Eppinger and Sam Clark, Jr., who were sitting in parked cars, side by side, speaking to one another. Trapps and Fleming approached and began firing at Clark and Eppinger, wounding Clark and killing Eppinger. Trapps and Fleming returned to defendant's vehicle, and the three left the scene.
¶ 5 At issue was whether, when he drove them to Logan Park, defendant knew about or was involved in Fleming and Trapps' plan to shoot Eppinger. In support of its theory of the case, the State produced oral, written, and videotaped statements made by defendant to Peoria detective Michael Mushinsky on September 19, 2001, after defendant was involved in a traffic stop and was brought to the police station. At the station, Mushinsky advised defendant that he was investigating the murder of Eppinger and advised defendant of his rights under Miranda v. Arizona, 384 U.S. 436 (1966). Defendant indicated he understood his rights and would talk to Mushinsky.
¶ 6 Mushinsky informed defendant of what he (Mushinsky) knew about the case. Defendant told Mushinsky he did not shoot Eppinger, that he had just been the driver of the van, and that Cortez Trapps was the actual shooter. Mushinsky then asked defendant to explain exactly what happened. Defendant said he was told by Trapps and Fleming that Eppinger was at Logan Park. They wanted defendant to drive them to Logan Park and said they were going to shoot Eppinger.
Defendant told them he did not want to drive them, but they told him to drive to Logan Park anyway. Defendant drove Fleming and Trapps to Logan Park, where they spotted Eppinger's vehicle. Fleming told defendant to drive the van into the alley and park. When defendant parked, Fleming and Trapps put white shirts over their faces and pulled out guns. Trapps and Fleming then walked in the direction of Logan Park. After a minute defendant heard gunshots and Trapps and Fleming came running back to the van. Trapps and Fleming got back in the van and told defendant to drive away. Trapps said he had killed Eppinger and Fleming said he fired one shot, but then his gun jammed. Defendant said Trapps and Fleming went after Eppinger because Eppinger and Kimmett Scott had tried to rob Trapps and Fleming on an earlier occasion.
¶ 7 After Mushinsky's interview with defendant, defendant provided a written statement. The written statement basically reiterated what defendant had told Mushinsky orally. Defendant told Trapps and Fleming not to go after Eppinger, but still drove them to Logan Park. After the shooting, defendant drove them to "Erica's" house, where Trapps and Fleming put the guns in a paper bag at the back of the house.
¶ 8 Defendant also signed a video release form giving police permission to videotape a third statement. Before recording the video, Mushinsky read defendant a form which again stated his Miranda rights.
¶ 9 On the video (as transcribed by the court reporter), Mushinsky noted it was 9:45 p.m. on September 19, 2001, in Room 164 of the Peoria police department, 600 SW Adams Street in Peoria. Present for the interview were Mushinsky, defendant, and video technician Detective Grow of the Peoria police. Mushinsky again read defendant his Miranda rights as they related to a videotaped statement, and defendant indicated he understood and waived his rights. Defendant stated that he was answering Mushinsky's questions voluntarily and of his own free will. Defendant agreed that he had not been struck, beaten, abused, or threatened by anyone to obtain the statement. He had not been promised immunity from prosecution or leniency by any police officer. He had been allowed to go to the bathroom, eat, and drink if he so needed.
¶ 10 Defendant stated that on Tuesday, September 4, 2001, Trapps and
Fleming told him to "come on" and "not to worry about" where they were going. As defendant drove the van, Fleming said he knew where Eppinger could be found. They went to Logan Park and drove by Eppinger, who was sitting in his Cadillac. Defendant was directed by Fleming to park in the alley. Once defendant parked, Fleming and Trapps pulled their white T-shirts up over their faces and pulled out guns. The two jumped out of the van and ran toward Logan Park. Defendant heard a few shots and a minute later Trapps and Fleming ran back to the van. They told defendant to drive and defendant drove back to Erica's house. In the van, Trapps said he thought he killed Eppinger. Trapps and Fleming put the guns and white T-shirts they had worn for the shooting in a bag and took it with them to the back of Erica's house. After a while Trapps and Fleming left while defendant stayed behind at the house. Trapps and Fleming returned to Erica's after an hour and a half and picked up defendant and the van.
¶ 11 According to defendant's statement, prior to their arrival at Logan Park, neither Trapps nor Fleming said anything to him about shooting Clark. Defendant first saw the guns when he pulled into the alley. Trapp and Fleming removed the guns from a bag they had hidden under the seat in the van. Defendant suspected Trapps and Fleming had brought the guns into the van without his knowledge by hiding them under their shirts. Upon seeing Eppinger in his vehicle at Logan Park, Fleming said "we fixing to get him," referring to Eppinger. Defendant believed Fleming and Trapps wanted to shoot Eppinger because Eppinger had tried to rob them at a Holiday Inn prior to the shooting. After the video concluded, it was entered into evidence.
¶ 12 On cross-examination, Mushinsky insisted that the date of defendant's oral confession, in which he admitted that he knew Trapps and Fleming planned to kill Eppinger as he drove them to Logan Park, was September 19, 2001, even though the report of the oral confession was marked "9-21." Mushinsky admitted that during the taped confession he asked no direct questions related to what defendant knew about Trapp and Fleming's plans to shoot Eppinger as he drove them to Logan Park. On redirect examination, Mushinsky explained that secretaries type the reports, which could account for the date discrepancy.
¶ 13 Peoria police Detective Craig Willis was the final State witness.
Willis was present at the interview of defendant on September 19, 2001. According to Willis, defendant said that while he was in the van with Trapps and Fleming on the way to Logan Park, they told defendant they were going to shoot Eppinger. Defendant said he tried to talk them out of the shooting. The State then rested.
¶ 14 Defendant did not take the stand. He was convicted of first degree murder and aggravated battery with a firearm and was sentenced to consecutive terms of 24 years for the murder and 8 years for the aggravated battery.
¶ 15 Defendant filed a direct appeal raising a single issue: whether trial counsel was ineffective for failing to file a motion to suppress defendant's statements. The appellate court, in an unpublished Rule 23 order, affirmed defendant's conviction, finding that his claim of ineffective assistance would be better raised in a post-conviction proceeding, where defendant could develop a factual record. People v. Murdock, No. 3-03-0494 (2004) (unpublished order under Supreme Court Rule 23). Defendant filed his pro se post-conviction petition on May 24, 2005. In the petition, defendant argued that "trial counsel rendered ineffective assistance by failing to file a motion to suppress defendant's statements to the police, and to challenge their admissibility." In support of his contention that his statements were involuntary, defendant noted that there was no juvenile officer present and he did not have an opportunity to speak with his grandmother. On June 16, 2005, the circuit court found that the issues raised in the petition precluded summary dismissal and appointed counsel.
¶ 16 A post-conviction evidentiary hearing on defendant's petition began on May 4, 2007, before a different judge. Following the presentation of evidence, the trial court denied defendant's post-conviction petition.
¶ 17 On appeal, the appellate court reversed the trial court and remanded the matter for a full suppression hearing as to defendant's September 19, 2001, statements to police. The appellate court noted that the "concerned adult" factor, while not dispositive of the voluntariness of a juvenile's confession, is nonetheless important. The court found that under the totality of the circumstances, the trial court's findings that defendant could not have prevailed on a motion to suppress was erroneous, and remanded the matter to the trial court to conduct a suppression hearing.
¶ 18 A motion to suppress was filed, alleging that defendant, a juvenile, was subject to lengthy questioning by the police. The motion further alleged that defendant was held "incommunicado" and confessed only after certain promises were made to him by police. (The motion does not specify exactly what promises were made.)
¶ 19 The suppression hearing was held on January 21, 2010, before a third judge. The only witness called by the State was Mushinsky. Mushinsky testified that he first came into contact with defendant in an interview room of the Peoria police department on September 19, 2001, at around 5:30 p.m. Mushinsky had issued a "probable cause message" for defendant because he had probable cause to believe, after talking with witnesses, that defendant had been involved in a homicide that took place in Logan Park. Defendant was not handcuffed, but he was not free to leave the interview room. Mushinsky asked defendant if he wanted anything to eat or drink. Defendant declined but Mushinsky had already ordered him food. Mushinsky began to interview defendant at 6:45 p.m., accompanied by Detective Willis. Prior to asking defendant any questions, Mushinsky read him the Miranda warnings from a preprinted card. Defendant indicated he understood and agreed to speak to Mushinsky. Mushinsky told defendant he had spoken to other people, such as Fleming, and told defendant what they had told him.
¶ 20 At no point that evening did defendant request to see either of his grandparents. Defendant's grandfather Milas Murdock did come to the police station. Mushinsky needed to speak with him about an issue in the case and he wanted to inform Milas that defendant was at the station. Milas never requested to speak with defendant. Defendant did not request to speak with Milas and, prior to giving his statements, did not request to see an attorney. Defendant at no point during the interview refused to speak with Mushinsky. Mushinsky did not make any promises to defendant, nor did he threaten or coerce defendant in any way. Defendant never appeared in distress. Before the videotaped statement, defendant was given a video Miranda form and signed it. The interview of defendant concluded around 10:30 p.m. Defendant had been allowed to use the restroom.
¶ 21 On cross-examination, Mushinsky testified that if defendant had so requested, he would have been allowed to see a parent or guardian. Defendant would not have been free to leave. Mushinsky said that during the interview he was acting as both the investigating officer and the juvenile officer. Mushinsky denied ever saying defendant would not be charged if he would give up "the trigger man."
¶ 22 Defendant next took the stand. He testified that he was picked up by the police at around 2:35 p.m. on September 19, 2001, following a traffic stop. Defendant was handcuffed and taken to the police station, arriving there at about 3:15 p.m. From 3:15 to 5:30 p.m., defendant was not allowed to see a parent or guardian, even though he had made a specific request to see his grandmother, Dottie Robinson. Defendant was afraid. Mushinsky re-entered the room at 6:45 p.m. and began talking to defendant about the Eppinger murder, without reading Miranda rights to him. Mushinsky told him that he would not be charged if he gave up the "trigger man," and he would be allowed to go home. Defendant made two requests to see a parent or guardian: once when Mushinsky was out, he knocked on a door and made the request of a guard, and then once later to Mushinsky. Defendant was nervous and scared while making the video statement. Mushinsky read Miranda warnings to defendant before the recording, but defendant testified that he did not really understand the warnings. Mushinsky never told defendant that he did not have to talk to the police if he did not want to. Defendant felt tired and drained.
¶ 23 On cross-examination, defendant's October 2001 letter to Judge
Lucas*fn1 was introduced. In the letter defendant asserted that he knew nothing about the intentions of Trapps and Fleming when he drove them to Logan Park. He also claimed he asked police to call his grandmother when he was arrested on September 19, 2001, but his requests were refused. Instead police told him they would call his grandfather. Defendant was not able to see his grandfather while he was in police custody. Defendant claimed that he was scared and mentioned that the police promised him freedom if he told them who shot Eppinger and if he would admit to driving the shooter to the scene. Defendant claimed he had never been in trouble and had never been to jail. The letter was entered into evidence following the close of testimony.
¶ 24 The trial court issued its ruling denying the motion to suppress on January 28, 2010. The trial court articulated its reasons for denying the motion in open court and on the record. The court noted that any consideration as to whether statements should be suppressed is determined by whether the statements were voluntary or coerced. Because defendant was a juvenile, greater care must be taken to ensure that the statements were not the result of fright, ignorance of rights, or adolescent flights of fantasy. A number of factors needed to be weighed, with no single factor being dispositive. After reviewing the law and carefully considering the evidence presented at the hearing, particularly the videotaped statement, the court found the statements were voluntary because defendant had the mental capacity to understand his situation. Defendant was also able to understand the proceedings and his rights. The court further found that defendant was able to make his own voluntary decisions and statements. Defendant clearly answered and understood Miranda. Observing defendant's demeanor on the videotape, the court found that, while he had been at the station a few hours, defendant's will was not overcome. Sitting at the station for an hour gave defendant a chance to reflect. Nothing on the tape indicated defendant was afraid. He appeared to be calm. Officers allowed him restroom breaks and food, even if he did not take advantage of them. There was no yelling or badgering by officers. There were no threats on the part of the officers. The trial court also expressed doubts about defendant's credibility.
¶ 25 Three aspects of defendant's statements did concern the trial court. First, Mushinsky was "wearing two hats" as juvenile officer and investigating officer. The trial court, however, determined that a juvenile officer would not have done anything differently because the interview was proper and "by-the-book." Next, a parent or guardian should have been contacted. It was unclear to the trial court how the grandfather, Milas Murdock, came to be at the police station, whether Milas was contacted by Mushinsky or if Milas learned of defendant's detention through other means. However, there was no evidence the grandfather was denied the opportunity, if he requested, to see defendant. Finally, the trial court noted the supposed promise made by Mushinsky to induce defendant to give the statement. Mushinsky denied making the promise. The trial court found Mushinsky more credible on this point, and even if the promise had been made, the trial court did not feel it would have been sufficient to overcome the voluntariness of defendant's statements.
¶ 26 The appellate court affirmed the denial of the motion to suppress, holding that "[g]iving the trial court's findings their due deference, we consider the findings were not against the manifest weight of the evidence and conclude the trial court's denial of Murdock's motion to suppress was not made in error." No. 3-07-0438 (unpublished order under Supreme Court Rule 23). Justice McDade dissented, writing that she would have found that Mushinsky did not act as a juvenile officer. Further, she would have found that the length of the interview overcame defendant's will and rendered the statements involuntary.
¶ 28 Defendant contends that the trial court erred in denying his motion to suppress. Specifically, defendant argues that the record establishes that his statements to the police were involuntary because he, a juvenile, was interrogated as an adult. The State counters that defendant's statements were voluntary and the trial court was correct in denying the motion to suppress.
¶ 29 "In reviewing a trial court's ruling concerning whether a confession is voluntary, the trial court's factual findings will be reversed only if those findings are against the manifest weight of the evidence." People v. Morgan, 197 Ill. 2d 404, 437 (2001). Ultimately, however, the trial court's ruling on whether the confession was voluntary is subject to de novo review. Id.
¶ 30 To determine the voluntariness of a confession, courts consider the totality of the circumstances, including such factors as the defendant's age, intelligence, background, experience, education, mental capacity, and physical condition at the time of questioning. Id. Other factors include the duration and legality of the detention and whether there was any physical or mental abuse by the police. Id. Threats or promises made by the police may be considered physical or mental abuse. Id. No single factor is dispositive, rather "[t]he test of voluntariness is whether the individual made his confession freely and voluntarily, without compulsion or inducement of any kind, or whether the individual's will was overborne at the time of the confession." Id.
¶ 31 Defendant concedes that Detective Mushinsky did not engage in any behavior that would be considered coercive when applied to an adult. However, defendant argues that he was a juvenile, 16, at the time of the interrogation, and that the Supreme Court of the United States has recognized that "special caution" is required when reviewing the voluntariness of a minor's confession. See Haley v. Ohio, 332 U.S. 596, 599 (1948).
¶ 32 This court most recently addressed the voluntariness of custodial statements made by juveniles in In re G.O., 191 Ill. 2d 37 (2000), and Morgan. The taking of a juvenile's confession is a sensitive concern, and for this reason the greatest care must be taken to assure that the confession was not coerced or suggested. Id. at 54. The confession should also not be the product of adolescent fantasy, fright, or despair. Id. Illinois courts have recognized an additional factor not applicable in cases involving adults: the presence of a "concerned adult." Id. at 54-55. This factor considers whether the juvenile, either before or during the interrogation, had an opportunity to consult with an adult interested in his welfare. Id. at 55. In weighing this factor, courts also consider whether the police prevented the juvenile from conferring with a concerned adult and whether the police frustrated the concerned adult's attempt to confer with the juvenile. Id.
¶ 33 However, a juvenile's confession or statement should not be suppressed merely because he was denied the opportunity to confer with a parent or other concerned adult before or during the interrogation. Id. The concerned adult factor is particularly relevant in situations in which the juvenile has demonstrated trouble understanding the interrogation process, he asks to speak with a concerned adult, or the police prevent the concerned adult from speaking with him. Id. The concerned adult factor is just one of the many factors to be examined when determining whether a juvenile's confession was voluntary. Id.
¶ 34 As a preliminary matter, defendant argues this court should consider, in its review of the denial of the motion to suppress, evidence presented at hearings other than the suppression hearing. Specifically, defendant argues that we should consider the testimony of his grandmother, Dottie Robinson, from the earlier post-conviction evidentiary hearing.*fn2 In support of this contention, defendant cites to People v. Caballero, 102 Ill. 2d 23 (1984). In Caballero, the defendant was convicted at a jury trial after a pretrial motion to suppress oral and written confessions had been denied. On appeal to this court, the defendant argued that testimony elicited during the suppression hearing that police had beaten him had gone unrebutted. The only rebuttal to his abuse testimony came during the trial, when one of the officers testified that he never struck the defendant. Id. at 33.
The defendant argued that a court of review is limited to considering evidence presented at the suppression hearing and to evidence introduced at trial prior to the admission of the allegedly illegally obtained confession. The State countered that an appellate court may consider all evidence presented at trial in addition to the evidence from the suppression hearing. Id. at 34.
¶ 35 This court agreed with the State, holding that it would " 'consider all of the evidence, both at the hearing on the motion and at the trial, to determine whether the trial court properly admitted in evidence' " the confessions. Id. at 36 (quoting People v. La Bostrie, 14 Ill. 2d 617, 620-21 (1958)). Much of the court's discussion centered around whether it was proper to consider testimony before or after the contested confessions were admitted into evidence at trial. The court determined it did not matter and that, on review, ...