Appeal from the Circuit Court ILLINOIS, of the 12th Judicial Circuit, Will County, Illinois, Circuit No. 07-CF-1769 Honorable Amy Bertani-Tomczak, Judge, Presiding.
The opinion of the court was delivered by: Justice Carter
JUSTICE CARTER delivered the judgment of the court, with opinion.
Justices Lytton and Schmidt concurred in the judgment and opinion.
¶ 1 The defendant, Monta Travis, was convicted of first degree (felony) murder (720 ILCS 5/9-1(a)(3) (West 2006)) and armed robbery (720 ILCS 5/18-2(a) (West 2006)), and was sentenced to concurrent prison terms of 45 years and 20 years, respectively. On appeal, the defendant argues that: (1) the circuit court erred when it failed to suppress the two unrecorded statements he gave to the police; (2) the court erred when it found that he voluntarily confessed to the police; and (3) his sentence was "void" because he was sentenced on both the felony murder charge and the offense underlying the felony murder charge, which entitles him to a new trial because his jury waiver was invalid. Based on our ruling that the defendant's confession was involuntarily given, we reverse the court's judgment and remand the cause for a new trial at which the defendant's recorded, fifth interview is to be suppressed.
¶ 3 During the early afternoon hours of August 26, 2007, Manuel Villagomez, a husband and a father of four who was working as an ice cream vendor, was shot and killed while he pushed his ice cream cart down a residential street in Joliet. The following day, the then-15-year-old defendant was charged by complaint with Villagomez's murder.
¶ 4 On September 20, 2007, the defendant and Curtis Russell, Jr., were charged by indictment with three counts of first degree murder (720 ILCS 5/9-1(a)(1)-(a)(3) (West 2006)) and one count of armed robbery (720 ILCS 5/18-2(a) (West 2006)). The indictment alleged that the defendant and Russell took money from Villagomez before shooting and killing him.
¶ 5 On September 29, 2009, the defendant filed an amended motion to suppress statements that he made to the police on August 26-27, 2007. In the motion, the defendant alleged that he gave five different statements to the police while at the Joliet police department on August 26-27, 2007, two of which were unrecorded and the last of which contained a confession. The defendant argued that all of these statements should be suppressed.
¶ 6 The circuit court held a hearing on the defendant's motion on November 18, 2009.*fn1 The State presented the testimony of five Joliet police officers. Detective Joseph Egizio testified that he arrived at the scene of the shooting around 1 p.m. During his canvas of the neighborhood, a woman had told him that she saw a "Travis boy" in the area right before the shooting, who she clarified to be "Sandra's son." At approximately 5:32 p.m., Egizio returned to that woman's house, where she identified the defendant in a photo lineup as resembling "Sandra's son."
¶ 7 At approximately 5:37 p.m., Detectives Timothy Powers and John Ross drove in their unmarked vehicle to the scene of a traffic stop, where Officer Patrick Schumacher and his partner had stopped a vehicle in which the defendant was a passenger. Powers testified that he had been told that the defendant may have information on the homicide. Powers also said that there were at least four officers at the scene and possibly as many as eight.
¶ 8 Schumacher informed Powers that the defendant was willing to go to the Joliet police department to speak with the detectives. Powers and Ross then transported the defendant, who was not under arrest, in their unmarked vehicle to the Joliet police department.
¶ 9 After the three to five-minute ride, the defendant was taken to an unlocked interview room. He was given some Gatorade to drink, and within 10 minutes, Powers and Ross reentered the room to ask the defendant some questions. They told the defendant they were investigating a shooting and they asked the defendant to recount his day. The defendant did not ask to leave and did not implicate himself during the approximately 20-minute interview. Powers testified that the defendant was free to leave at that point, but also stated that they never told the defendant that he was free to leave. This first interview was not recorded.
¶ 10 At approximately 6:37 p.m., Powers and Ross reentered the room. Ross testified that he began functioning as a juvenile officer at this second interview. They read a preprinted form to the defendant that contained his rights pursuant to Miranda v. Arizona, 384 U.S. 436, 479 (1966), which Powers stated the defendant appeared to understand prior to waiving his rights by initialing and signing the form. Powers stated that they told the defendant that they had other information that indicated there were inconsistencies in the story the defendant gave during the first interview. The defendant proceeded to give the detectives another version of his actions that day and again did not implicate himself. At the request of the detectives, the defendant agreed to put his new version of events on videotape. The defendant did not say that he wanted to leave during this interview, and Powers said the defendant was not under arrest at that point. He and Ross also testified that they did not tell the defendant that he was free to leave after this unrecorded, second interview. Ross testified that after this interview, he provided a mattress and a blanket for the defendant because he requested something upon which he could lie down. In addition, Ross testified that he did not call the defendant's mother, he only spoke to her in passing at the police station that night, and he did not ask the defendant if he wanted to speak to her.
¶ 11 The recorded, third interview was admitted into evidence and played at the hearing. The recording showed Powers and Ross enter the room and sit at the table, where the defendant, who was wrapped in a blanket, was already sitting. Powers stated that the time was 9:17 p.m. and then he read the defendant his Miranda rights. The defendant initialed and signed the form waiving those rights. Powers then asked the defendant a series of questions regarding his whereabouts during the day.
¶ 12 The defendant relayed to Powers a story that included him riding a bike through the neighborhood and briefly seeing Russell and the defendant's cousin, Jeremy Travis, down the block. The defendant said he saw Russell and Jeremy approach an ice cream vendor; Russell was alongside the vendor and Jeremy approached from the rear. The defendant continued riding past that location on his way to someone's house. As he was riding past a nearby school, he heard approximately three loud pops. He continued to ride toward his destination. The defendant said he had no contact with the ice cream vendor. He did not implicate himself during the interview, which ended at what Powers said on the video was 9:34 p.m.
¶ 13 Powers left the room and Ross asked the defendant whether he wanted any food or drink and whether he needed to use the restroom. The defendant asked Ross when he could go home. Ross told him, "we gotta see if all the stories jive, right?" Powers came back in shortly thereafter and told the defendant they had some information about two individuals being seen in the area exchanging something. Powers asked the defendant if he met up with anyone around that time, and the defendant said no.
¶ 14 Detectives Scott Nicodemus and Egizio testified that they interviewed the defendant's cousin, Jeremy Travis, at approximately 9:50 p.m. Jeremy implicated the defendant during that interview.
¶ 15 Powers also testified that the defendant gave two more recorded interviews. He was not involved with the defendant's recorded, fourth interview. This interview was conducted by Egizio around 10:50 p.m. Ross was also present and asked the defendant about food and using the restroom.
¶ 16 Egizio began the interview by telling the defendant that his version of events was "terrible" and was the "worst story you could have told." Egizio told the defendant that interviews they had done with other people "blew [the defendant's story] out of the water," and that Russell had said that the entire incident was the defendant's idea. Egizio also told the defendant that this was his last chance to "man up" and accept responsibility for his actions. As Egizio continued on, the defendant told Egizio to take him to jail because he would do his time and be back on the streets. Throughout the approximately nine-minute interview, the defendant denied involvement in the shooting. It ended when the defendant told Egizio that "I don't even want to talk to you no more." At that point, Egizio and Ross exited the room. As Egizio was leaving, he told the defendant to think about whether he would continue to sit there and be a child or whether he would "man up."
¶ 17 The recording continued to run after Egizio and Ross left the room. The defendant sat relatively motionless for approximately seven minutes before he put his head down on the table. Approximately 10 minutes later, Powers came in with food and a can of soda for the defendant and told him that they were going to be there for "a while." Powers asked whether the defendant wanted the mattress back; the defendant said yes. A few minutes later, Powers returned with the mattress. The defendant told Powers that he was tired. Powers left the room and the defendant lay down on the mattress around 11:21 p.m. Within about seven minutes, the defendant could be heard breathing heavier and eventually snoring.
¶ 18 At approximately 11:42 p.m., Powers and Nicodemus entered the room for a recorded, fifth interview. Powers testified that he knew when they walked in that the defendant had told Egizio that he did not want to talk to Egizio anymore. Powers also testified that he believed the defendant was under arrest at the time they entered the room for the fifth interview, although the defendant was not told he was under arrest. The recording was admitted into evidence and played at the hearing.
¶ 19 The videotape showed Powers wake the defendant, who then sat down in the chair and wrapped himself in the blanket. The defendant was visibly groggy. Powers asked the defendant if he was awake, to which the defendant responded affirmatively, and then Powers read the Miranda rights form to the defendant. The defendant initialed and signed the form, and Nicodemus began speaking. He spoke in a calm and civil tone and started by telling the defendant that when people yell at him, he gets defensive, so Nicodemus would not yell at him. During the interview, Nicodemus talked to the defendant about age and accepting responsibility for one's actions. Among other things, Nicodemus stated:
"People make mistakes. You're a juvenile. Juvenile system's very forgiving, very understanding when people mess up. Crimes that you commit when you're a juvenile you're not even tried as an adult sometimes. You don't even get the maximum penalties. You don't even do that. Everybody gets a clean slate when they turn 17. You're lucky that you're less than 17, okay? But in order to get those breaks, to get those chances, you have to show some remorse, some compassion, and not just be somebody that doesn't have a conscious [sic], somebody that throws other people's names out there. You gotta be somebody that takes responsibility for their actions because if you don't do that, you're never gonna get any breaks. No one's ever gonna look at you as this kid's worth taking a chance on."
"So are you somebody that's worth us talking to? Or should we just walk out of here, go with the case we have, and let the State's attorney do what they want, just throw you in the system and let it take its course? I'm not ready to do that."
¶ 20 Nicodemus asked if the defendant was sorry for what happened that day. The defendant said yes. After Nicodemus talked more about taking responsibility and Powers commented, "you got family that you're gonna see when this is all done," the defendant asked, "[s]o, like, I can't go to the crib?" Nicodemus responded rhetorically, asking what the defendant thought should happen to someone who engages in actions like this.
¶ 21 Within a few minutes, the defendant confessed to shooting Villagomez. He said it was an accident, as he did not know that the gun was cocked. After a few more comments, the defendant asked when they were going to take him to "River Valley." He said he told them what he did, and requested that they take him to "River Valley."
¶ 22 The defendant also said that the idea to rob Villagomez came from Russell. The defendant got the gun from Russell; he did not know whose gun it was and had never seen it before. The defendant was on a bike and rode up beside Villagomez while Russell approached from behind. The defendant said Russell did not tell him that the gun was cocked and that he thought it went off twice. After shooting Villagomez, he gave the gun to Russell and rode away. Russell followed on foot in the same direction, but they eventually took separate directions. He also stated that he had on the same clothes during the incident that he was wearing during the interview, which was a white T-shirt and long, dark-colored shorts. He stated that Russell was wearing a white t-shirt with blue jeans and a black hat.
¶ 23 The defendant asked again when he was going to be taken to "River Valley." Nicodemus stated, "[p]retty soon, we gotta call over there and make some reservations and stuff." They estimated it would be about an hour or an hour and a half. The defendant also asked about talking to his mother, and they told him that they would call her and let her know what was going on. The detectives left the room at approximately 12:09 a.m. Powers came back in about six minutes later to tell the defendant that his mother was on her way down to the police station.
¶ 24 Ross testified that he was not in the room for the recorded, fifth interview. He stated that he watched the interview on a monitor in another room.
¶ 25 Schumacher testified that he had arrested the defendant on a prior occasion in April 2006 for unlawful use of a weapon. In connection with that incident, the defendant was interviewed at the police station after having been read his Miranda rights, understanding them, and initialing and signing a waiver of those rights. Schumacher also stated that the defendant had been arrested approximately one week prior to that incident for criminal damage to a vehicle, although he was not interviewed in connection with that arrest.
¶ 26 The defense presented the testimony of Lysander Travis, who was the defendant's mother. She stated that she received a call from her cousin on August 26, 2007, who told her that the defendant had been arrested and was at the Joliet police department. She went to the police station around 5:30 or 6 p.m. She did not receive any call from the police prior to that time.
¶ 27 Once Lysander arrived at the police station, she inquired of the clerk whether they had the defendant. The clerk initially stated no, but double-checked and told Lysander approximately 10 minutes later that they did in fact have the defendant in the back of the police station. Approximately 5 to 10 minutes later, an officer came out and took Lysander to the back of the police station.*fn2 Lysander testified that she thought the officer was taking her back to see the defendant. She saw the defendant on a monitor as they walked through the police station. However, rather than taking her to see the defendant, he took her to an interview room instead, where he questioned her for approximately 20 minutes. Lysander stated that she did not explicitly ask to see the defendant, although she thought that she would be allowed to see him after her questioning was done. However, once the questioning was done, the officer gave Lysander his card and told her that the defendant would be released, but not until they were done questioning him. Lysander left the police station at approximately 7 p.m.
¶ 28 At approximately 9:30 p.m., the same officer and another officer went to Lysander's house and received her permission to search the defendant's room. The officer again told Lysander that the defendant would ...