Appeal from the Circuit Court of Washington County. No. 12-CF-72. Honorable Daniel J. Emge, Judge, presiding.
For Appellant: Hon. Heath Hooks, State's Attorney, Nashville, IL; Patrick Delfino, Director, Stephen E. Norris, Deputy Director, Sharon Shanahan, Staff Attorney, Office of the State's Attorneys Appellate Prosecutor, Mt. Vernon, IL.
For Appellee: Michael J. Pelletier, State Appellate Defender, Ellen J. Curry, Deputy Defender, Amanda R. Horner, Assistant Appellate Defender, Office of the State Appellate Defender, Mt. Vernon, IL.
JUSTICE GOLDENHERSH delivered the judgment of the court, with opinion. Justices Chapman and Cates concurred in the judgment and opinion.
[¶1] The State appeals from an order of the circuit court of Washington County granting the motion to suppress filed by defendant, Ross D. Follis, Jr. The issue raised in this appeal is whether the trial court erred in concluding that defendant was in custody at the time of the interview. We affirm.
[¶3] Defendant, age 18, was charged by information with one count of predatory criminal sexual assault of a child (720 ILCS 5/11-1.40(a)(1) (West 2010)) for allegedly committing an act of sexual penetration on the victim who was three years of age by inserting his finger in the victim's vagina. He was also charged with one count of aggravated criminal sexual abuse (720 ILCS 5/11-1.60(c)(1)(i) (West 2010)) for allegedly committing an act of
sexual conduct with the same victim by knowingly touching the victim's vagina with his fingers. Defendant filed a motion to suppress his confession. The State filed a response, arguing (1) defendant was not in custody, and (2) even if defendant was in custody, his confession was knowing and voluntary.
[¶4] A hearing was held on the motion to suppress during which Brock Styninger, a Nashville police officer, testified that he spoke briefly to defendant's father on December 6, 2012, and told him there was an allegation of sexual assault against defendant. A month earlier, the police asked defendant to leave his home so that the Department of Children and Family Services (Department) could conduct an interview about allegations of sexual abuse made by the victim. On December 6, defendant's father said defendant was not home, but was out walking the dog. Styninger and another officer, Officer Reel, left, but came back 10 to 15 minutes later, at which time defendant was available. Defendant told the police that he initially saw the squad car pull up to his house and he ran away, but upon reflection he realized it was better to come back and talk to the police. The officers asked defendant to come to the police station for questioning. Defendant agreed by telling the police, " [L]et's just get this shit over with."
[¶5] According to Styninger, defendant was not in custody and was never told he was under arrest. Defendant was not handcuffed, but he did ride in the back of a patrol car to the station. Defendant was allowed to smoke a cigarette before he was interviewed, was allowed to use the restroom, was given a drink of water, and was given a cigarette break during the interview. The interview was videotaped, but there are audio problems with the videotape.
[¶6] Even though the police officers said defendant was not in custody, Styninger read defendant his Miranda rights ( Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966)) from a police department-issued form. Defendant nodded his head a few times, which Styninger interpreted as meaning that defendant understood his rights. Defendant initialed the individual paragraphs and signed the form. The interview was conducted in a ...