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People v. Mandoline

Court of Appeals of Illinois, Second District

February 21, 2017

THE PEOPLE OF THE STATE OF ILLINOIS Plaintiff-Appellee,
v.
TODD J. MANDOLINE, Defendant-Appellant.

         Appeal from the Circuit Court of Du Page County. No. 12-CF-1455 Honorable John J. Kinsella, Judge, Presiding.

          JUSTICE BIRKETT delivered the judgment of the court, with opinion. Justices Burke and Spence concurred in the judgment and opinion.

          OPINION

          BIRKETT JUSTICE

         ¶ 1 Following a jury trial in the circuit court of Du Page County, defendant, Todd J. Mandoline, was convicted of first-degree murder (720 ILCS 5/9-1(a)(3) (West 2012)) and aggravated arson (720 ILCS 5/20-1.1(a)(2) (West 2012)), and he was sentenced to consecutive terms of imprisonment of 27 years for murder and 12 years for aggravated arson. Defendant appeals, arguing that: (1) probable cause did not exist for his arrest; (2) defendant did not voluntarily reinitiate questioning with the police after the initial interrogation had ceased due to his invocation of his right to counsel; (3) his statements to the police were not voluntary, knowing, and intelligent; (4) his statements were obtained in violation of section 103-2.1 of the Code of Criminal Procedure of 1963 (Code) (725 ILCS 5/103-2.1 (West 2012)), which requires the electronic recording of custodial interrogations in murder investigations; and (5) the trial court erroneously refused a jury instruction bearing on the proximate-cause theory of felony murder. We affirm.

         ¶ 2 I. BACKGROUND

         ¶ 3 We summarize the pertinent facts adduced during the hearings and the trial in this matter. Early in the morning on July 22, 2012, Paula Morgan died in a fire at her home in Lombard, Illinois; Jason Cassiday was burned over 40% of his body and experienced life-threatening pulmonary injuries due to inhaling smoke and combustion products, but he survived the fire. The fire began in Morgan's car: a piece of paper had been inserted into the gasoline fill tube of the car and ignited. The car was parked in the driveway of the home, almost inside of the garage. The garage door was open and the door to the mudroom, off of the garage, was also open. A whole-house fan, which was apparently operating at the time of the fire, pulled smoke and flames into the garage and the house. The car and the garage were largely consumed by the fire; the upstairs rooms of the house were heavily damaged.

         ¶ 4 On Saturday, July 21, 2012, Morgan's parents left on an out-of-town trip. That night, Morgan had a birthday party. Defendant, who had been in an intimate but up-and-down relationship with Morgan, attended. As the party progressed, defendant became agitated because he apparently believed that he and Morgan would spend the night alone together, and he was upset when she had a large birthday party. At some point during the party, defendant and Morgan began to argue. Defendant demanded the return of a necklace he had given Morgan; there was some shoving, and partygoers separated defendant and Morgan. Defendant spoke with Ricardo Sanchez for an hour or more. Eventually, Morgan surrendered the necklace to defendant, and Matt Schopa drove defendant away from the party. At some point, either during defendant's initial confrontation with Morgan or as he was leaving the party, he stated, "I hope you all die."

         ¶ 5 At about 2 a.m. on July 22, 2012, Salman Jaffer, who lived across the street from the Morgan home, left his home to work out. Jaffer explained that he was observing the Muslim holiday of Ramadan, which required fasting during the daytime, so he had flipped his schedule and ate and was active at night. He noticed a car that he did not recognize from his neighborhood parked across from his house. He returned from his workout at about 3 a.m. and noticed that the car was no longer there. However, when interviewed by the police, he stated that the car was still present when he returned from his workout. Sometime between 3:30 and 4 a.m., Jaffer heard the sound of breaking glass. Fearing that he was being harassed, he doused the lights and then noticed an orange glow. He observed that Morgan's car was on fire and called 911. Jaffer attempted to help, but he was advised by the emergency operator to back away when the tires on Morgan's car began to explode.

         ¶ 6 At about 3 a.m., Asgar Mohammed, another neighbor observing the holiday of Ramadan, left his house to go to the grocery store. He encountered a brown-haired white male with a scruffy beard and exchanged a greeting with him. The man was wearing a light-colored shirt and baggy light-khaki short pants. Defendant was observed at the party wearing clothes matching that description. Mohammed also noticed a suspicious car and noted that the person in the car was not the same person with whom he had exchanged a greeting.

         ¶ 7 Police and fire personnel responded to the fire. Police began the process of investigating the circumstances of the fire.

         ¶ 8 At about 5:30 a.m. on July 22, 2012, Detective Sergeant John Malatia of the Lombard police department reported to the Morgans' house. At that early time, no one had determined the cause of the fire. Malatia noted the damage to the house and to Morgan's car and returned to his office. The police began bringing the partygoers into the police department for interviews.

         ¶ 9 Detectives Gouty and Grage of the Lombard police department interviewed Sanchez. Sanchez had observed the altercation between defendant and Morgan and explained that he had interposed himself and restrained defendant. Sanchez confirmed that defendant had stated, "I wish you all die" or "I hope you all die." Sanchez also related that, later, he had seen someone in the shadows. Although Sanchez was not able to provide a description of the individual in the shadows, he believed that it was defendant returning to the party.

         ¶ 10 Another partygoer, Matt Allen, was interviewed by Lieutenant Abenante of the Lombard police department. Allen related that there was no physical altercation between defendant and Morgan. Allen also had seen someone in the shadows before the discovery of the fire; Allen did not say that he had seen defendant.

         ¶ 11 At around 6:20 or 6:30 a.m., Malatia spoke to Jaffer. Malatia learned that Jaffer had not seen anyone who seemed responsible for the fire when Jaffer discovered it. Jaffer informed Malatia that he had seen a Hyundai Tiburon parked near Morgan's house before the fire but that the car had departed by the time he discovered the fire.

         ¶ 12 At 6:32 a.m., Malatia and Detective Terrence Evoy of the Lombard police department interviewed Schopa. Schopa told the detectives that he had attended Morgan's birthday party the previous evening. Schopa related that defendant and Morgan argued about a necklace defendant had given to Morgan. Schopa also noted that defendant stated that he hoped Morgan died or that he wanted everyone to die, but Morgan might not have been present for the statement. Schopa told the detectives that he interceded with Morgan about the necklace, and she gave him the necklace to return to defendant. Schopa also informed the detectives that, at around 1:30 a.m., he had driven defendant away from the party, dropping defendant off on his street. Schopa drove the detectives along the route he used to drive defendant away. The detectives determined that Schopa had dropped defendant off about three houses short of defendant's residence.

         ¶ 13 The police investigating the fire held a brief meeting to exchange what they had learned. After this meeting, Malatia sent Detectives Michael Harris and Balsitis of the Lombard police department to defendant's home. Malatia, accompanied by Evoy, followed the other two detectives to defendant's home, arriving as Harris and Balsitis were speaking to defendant on his front porch.

         ¶ 14 At around 7:15 a.m., Harris and Balsitis arrived at defendant's home and knocked on the front door. They were greeted by defendant's mother and informed her that they wished to speak with defendant. Defendant's mother woke defendant, and he joined Harris and Balsitis on the porch. At this point, the detectives did not inform defendant that Morgan had died, but they stated that they were investigating a fire that had occurred at Morgan's house earlier that morning. Defendant admitted that he had attended Morgan's party the night before, but he asserted that he had left the party early because he did not get along with some of the other partygoers.

         ¶ 15 As Harris and Balsitis were talking with defendant, Malatia and Evoy arrived. The record is unclear as to who made the request, but one of the detectives asked defendant to come to the police department, and defendant agreed. Defendant asked that he be allowed to go to the bathroom and to get dressed.

         ¶ 16 Defendant went back into his house, and Harris and Balsitis accompanied him. Harris watched defendant retrieve his footwear and Balsitis stayed near defendant's bathroom as he relieved himself. Defendant put on the same clothes he had worn to the party. The detectives noted that these clothes were very wet and that defendant appeared to have sweated heavily in the clothes, perhaps from running. Harris was asked whether he watched defendant use the bathroom, and Harris denied that he had done that. Harris was asked whether Balsitis asked defendant to keep the bathroom door open, and Harris was unsure whether that occurred or even whether the bathroom door was open. Harris surmised that, if the bathroom door were left open, Balsitis might have asked defendant to leave it open, but Harris was unsure. After defendant grabbed his footwear, wallet, and keys, defendant exited his home and got into the unmarked police car in which Malatia and Evoy arrived. The record does not indicate that defendant was patted down before entering the car.

         ¶ 17 At about 7:23 a.m., they arrived at the police department, and defendant was escorted to an interview room. Before entering the room, Malatia searched defendant and removed defendant's phone and wallet, placing them in a cubby.

         ¶ 18 The interview room was approximately five feet by five feet. At about 7:43 a.m., Malatia, with Evoy present, read defendant his Miranda rights. Defendant immediately asked, "If I had an attorney, would I have to wait then? Would I have to sit here?" Malatia replied, "Yeah, obviously." During the ensuing conversation, defendant related that his and Morgan's relationship "wasn't going very well." Defendant was upset that he and Morgan had not been spending time together. Malatia directly questioned defendant about the altercation with Morgan at the party, but defendant initially denied it. Malatia informed defendant that everyone at the party had mentioned an altercation, and defendant then admitted that he had gotten into an argument with Morgan, but he said that he could not recall the details, such as why they were arguing, what they were arguing about, how it started, or whether he pushed Morgan. Defendant denied any memory of making threats or cursing out Morgan or any of the other partygoers, but defendant admitted that, in a text message, he called Morgan a "whore." Defendant denied that he returned to the party after Schopa drove him away.

         ¶ 19 At about 8:18 a.m., defendant stated, "Now, I'll call my lawyer. You want to say you got this on me. You want to say whatever and try to pin me down, now, I'll talk to my lawyer." The detectives did not discontinue the questioning. Instead, Malatia continued, saying, "We're trying to figure out what happened."

         ¶ 20 At about 8:26 a.m., both Malatia and Evoy left defendant alone in the interview room. At about 8:44 a.m., Evoy returned to the interview room because defendant had opened the door and set off an alarm. At that point, Evoy told defendant that he was not allowed to leave.

         ¶ 21 At about 9:11 a.m., defendant said, "I've said everything I'm going to say. Can I get my cigarettes, call my mom, and get a ride?" Malatia told defendant that he could not leave. Defendant asked why he could not leave, and Malatia told him that they had to get to the bottom of the incident. Defendant asked if he could retrieve his lawyer's phone number, and Malatia and Evoy agreed to let him do that at a later time, but defendant was never allowed to retrieve his lawyer's number or to call his lawyer. At about 9:12 a.m., defendant reiterated that he had asked for a lawyer.

         ¶ 22 At about 9:21 a.m., defendant was taken out of the interview room and allowed to smoke (the first smoking break). Because no smoking was allowed in the police department, defendant was taken outside. The spot to which defendant was taken was a blind spot for the security cameras located on the outside of the department. In any event, even if defendant had been taken to a place the security cameras covered, any verbal interaction would not have been recorded, because the cameras were not equipped to make audio recordings.

         ¶ 23 Defendant was accompanied outside by Malatia and Evoy during the first smoking break. Malatia and defendant spoke generally about defendant and also about the case. Defendant asked about what happened at the Morgans' house and how the fire had started. Malatia told defendant that he did not know. Defendant asked if he could call his mother for a ride and mentioned the name of his lawyer. Malatia told defendant that he knew defendant's lawyer. Defendant also asked when he would be able to leave, but Malatia put him off, telling him that he could not yet leave. Neither Malatia nor Evoy prepared a report about the conversation with defendant during the first smoking break. At around 9:32 a.m., defendant was returned to the interview room. The detectives did not readminister the Miranda warnings.

         ¶ 24 The questioning continued. At about 9:59 a.m., defendant told the detectives that there was nothing else they needed to know. The detectives inquired whether there was anything else defendant wished to tell them, and defendant once again mentioned his attorney. Evoy attempted to get defendant to talk further, suggesting that defendant and the police would not be able "to fix things" if defendant were not forthcoming. Defendant responded, "I told you everything from my point of view. I told you everything." The questioning continued.

         ¶ 25 At about 10:11 a.m., Evoy told defendant that incorrectly answering "questions that we already know the answers to does not help [you], " and he urged defendant to be truthful. Defendant then reminded the detectives that he had asked for a lawyer, saying, "I said I did want my lawyer, but you never came back and asked questions about that." Malatia told defendant that he was not allowed to call his mother, and defendant replied, "I can call my dad to get somebody's number to call my lawyer."

         ¶ 26 The questioning continued. Malatia and Evoy continued to use psychological pressure and urge defendant to give truthful responses, with Evoy warning defendant, "the more we dig, the more we're going to continue to dig, the worse it's probably going to be for you." At about 10:25 a.m., defendant once again asked for a lawyer. This time, Malatia finally recognized that defendant had invoked his right to counsel, and the detectives terminated the questioning and left the interview room. However, they left defendant in the interview room while they completed other tasks related to the investigation.

         ¶ 27 During the interlude, Malatia and Evoy interviewed Mohammed about his observations before the fire. After about 15 minutes, the detectives wrapped it up. Evoy escorted Mohammed to the front of the police department. As they were walking, Evoy retrieved copies from the printer, placing them on top of the folder he was carrying. The copy on top was of a picture of defendant taken earlier that morning. Evoy did not attempt to show Mohammed the picture, but since it was on top of the papers he was carrying, Mohammed noticed it. He told Evoy that the picture was of the man he had seen the night before. Evoy apparently did not create a report to memorialize the exchange; moreover, Evoy did not bring Mohammed back to an interview room and attempt to conduct a photo lineup to see if Mohammed could still make an identification. Instead, he escorted Mohammed to the doors and let him depart.

         ¶ 28 At around 11:30 a.m., defendant knocked on the door of the interview room and requested permission to use the restroom and to smoke a cigarette. Defendant was taken to the restroom, returned momentarily to the interview room, and then taken outside to the same spot where he had smoked earlier (second smoking break).

         ¶ 29 According to Malatia, during the second smoking break, defendant asked what was occurring in the investigation. Malatia believed that defendant asked this about five times; each time, he or Evoy told defendant, "based on his request for an attorney, we couldn't answer those questions anymore." Defendant then asked when he would be able to leave. Malatia informed defendant that he "was going to be there for a while." Malatia explained to the court that, in his opinion, defendant was in custody by the time of the second smoking break.

         ¶ 30 Defendant asked what they needed to do to talk about his case again. Malatia testified that he explained to defendant:

"[I]n order to talk about the case again, *** he would have to formally say he didn't want to talk to an attorney anymore. We would have to go inside the police department, fill out paperwork to that effect, and we would have to read him his rights again, and we would have to start all over from scratch there."

         Defendant agreed to the procedure that Malatia had outlined.

         ¶ 31 At about 11:36 a.m., defendant was taken back to the interview room. Malatia announced that defendant had earlier asked for an attorney. Malatia asked defendant if he wanted to speak with the detectives. Defendant replied, "I'll talk to you." Defendant signed a preprinted form revoking his previous invocation of his right to an attorney. Defendant, both orally and in writing, then waived his right to an attorney. Additionally, defendant was once again Mirandized.

         ¶ 32 The questioning resumed. At about 11:46 a.m., Evoy informed defendant that he knew that defendant was involved and he urged defendant to tell the truth so that he could move defendant "to the next level and get [him] out of here." Defendant asked what would happen if he were to "remember doing it." Malatia replied that, in the worst case, defendant would be arrested and charged and would have to go to court. To further press defendant, Malatia warned him that, if the police were required to continue investigating the incident, it would be "more difficult for [defendant] to minimize things." Evoy added that, if defendant were to confess and take responsibility for his actions, the judge and the State's Attorney would take it into account. At about 11:50 a.m., defendant conceded that he had returned to Morgan's home, saying that he "went and spied." Defendant continued to maintain that he had not started a fire after he returned to Morgan's neighborhood.

         ¶ 33 At about 12:07 p.m., Malatia informed defendant that the experts were, at that moment, determining how the fire had started. Malatia told defendant that he was trying to get to the heart of the matter. Defendant continued to deny that he started Morgan's car on fire: "I don't know [inaudible] fire, though. Fuck, I had no gas. If I fucking-I didn't walk up to the car with a fucking lighter or nothing."

         ¶ 34 After about another hour, at about 1:10 p.m., defendant was taken from the interview room for another smoking break (third smoking break). Detectives Chudzinski and Gouty of the Lombard police department escorted defendant out the back door near the garage. Chudzinski made small talk with defendant while defendant smoked. They discussed defendant's employment, where he went to school, and his attempts to stop smoking. Defendant also asked Chudzinski if he could go home by posting a recognizance bond. Chudzinski told defendant that Malatia and Evoy still wanted to speak with him. After defendant had smoked, he was returned to the interview room. Defendant was left alone in the interview room for about an hour.

         ¶ 35 At about 2:30 p.m., defendant requested another chance to smoke. Chudzinski, accompanied by Detective Porrata of the Lombard police department, took defendant outside for another smoking break (fourth smoking break). According to Chudzinski, they once again engaged in small talk focusing on defendant's employment, but he did not ask defendant any questions related to the case. Chudzinski testified that they spoke about defendant engaging in painting jobs with his father. At some point during the fourth smoking break, defendant asked where Malatia and Evoy had gone. Chudzinski told defendant that Malatia and Evoy had gone to Morgan's house and were meeting with other investigators and evidence technicians. Defendant asked what kind of evidence they were looking for. Chudzinski related that he did not know, because he had not visited the scene; however, he continued, when Malatia and Evoy returned to the police department, they would still wish to speak with defendant, and Chudzinski advised defendant to "be honest with them." At about 2:42 p.m., Chudzinski returned defendant to the interview room. Once there, defendant remained alone.

         ¶ 36 At about 2:57 p.m., Malatia and Evoy once again entered the interview room. Evoy demanded that defendant "come clean right now"; Malatia informed defendant that the police knew absolutely how the car started on fire. Both detectives repeated that they knew the origin of the fire and pressed defendant to "come clean." At about 2:59 p.m., defendant stated that he lit a piece of paper on fire and put it in the gas tank.

         ¶ 37 At about 3:20 p.m., Chudzinski and Detective Ranallo of the Lombard police department took defendant from the interview room for another smoking break (fifth smoking break). Chudzinski, following Malatia's instructions, took defendant to smoke in the garage. Chudzinski explained that defendant was taken into the garage instead of outside because defendant had admitted his involvement in the fire. Additionally, unlike the other four smoking breaks, the fifth smoking break occurred in an area that was monitored by the outside surveillance cameras at the police department, although the camera monitoring the garage area was still unequipped to record any audio. Defendant asked Chudzinski if he would be able to "do SWAP [Sheriff's Work Alternative Program] time" while he was in the county jail for this case. Chudzinski told defendant that he did not know and returned defendant to the interview room.

         ¶ 38 Contrasting with the recollections of the various police officers, defendant had a somewhat different version of the events and the smoking breaks. During the first smoking break, defendant asked Malatia and Evoy when he would be able to call a lawyer and when he would be able to go home. Malatia asked defendant the name of his lawyer, and defendant told him. Malatia acknowledged that he knew defendant's lawyer, but Malatia told defendant that his lawyer would probably not answer his call and that, even if he did answer, he would not come to the police department on a Sunday morning. Defendant persisted in his requests to call his lawyer, but Malatia did not allow him to make a call. Malatia also did not respond to defendant's request to go home.

         ¶ 39 Testifying about the second smoking break, defendant maintained that he again asked to call his attorney and again asked when he would be able to go home. According to defendant, Malatia stated that he could not contact his attorney and that the only way defendant would be able to go home was if he decided to speak with the detectives again. Defendant explained why he agreed to resume talking with the detectives:

"Outside, [Malatia and Evoy] told me that was my only option of going home. I felt that I really had no options. They flat out told me I couldn't call my lawyer; I couldn't make a phone call, period; I couldn't call my mother. But they had blatantly ignored me all day."

         Defendant testified that Malatia instructed him about how they would have to proceed in order to resume speaking with defendant. According to defendant, Malatia explained that defendant would have to once again expressly waive his right to an attorney; the detectives would ask defendant a series of questions and defendant would have to convey that he knowingly wanted to speak to the detectives and that he had asked to speak with the detectives in the first place. Defendant further related that Malatia explained to him that all of these procedures were going to be videotaped so that they could be verified.

         ¶ 40 Defendant explained that the reason he did not bring up the purported promise that he would be able to go home was that it was not part of the agreement he had made with Malatia during the second smoking break. Defendant elaborated on Malatia's instructions, maintaining that Malatia told him what he needed to say in response to the questions that he would be asked when they were back in the interview room and before the camera. According to defendant, Malatia told him that he had to go into the interview room and waive his right to an attorney. Defendant would then be asked if he had approached the detectives and asked to speak about the case, to which he was going to have to answer, "Yes."

         ¶ 41 According to defendant, during the second smoking break, Malatia was "adamant" about speaking with defendant about the investigation even as he stonewalled defendant's inquiries about the investigation by claiming that he was not allowed to speak with defendant because defendant had asked for a lawyer. Defendant believed that Evoy cautioned Malatia that neither of the detectives should be talking with defendant. Finally, defendant noted that he had not been informed that anyone had perished in the fire; rather, the detectives told him that insurance would cover the damage to Morgan's car and that he would be allowed to go home.

         ¶ 42 After the questioning was complete, defendant's attorney arrived at the police department. The attorney was allowed to speak with defendant.

         ¶ 43 Defendant was charged with aggravated arson and murder. Later, a superseding indictment was filed, charging defendant with first-degree murder, aggravated arson, and other offenses stemming from the fire. During the investigation, the forensic pathologist determined that Morgan had died from inhaling smoke and other combustion products caused by the fire

         ¶ 44 In an open lot next to Morgan's house, police recovered a cigarette butt. Genetic testing on the cigarette butt determined the presence of defendant's genetic material. In addition, police recovered two water bottles, each of which contained a liquid and bits of aluminum foil. The police later determined that they were like "Drano" or "MacGyver" bombs, in which the aluminum foil undergoes a reaction with Drano or some other caustic liquid, releasing heat and causing pressure to build up in the bottle until it bursts. The bottles did not appear to have burst, but they appeared to have tiny holes that would have allowed the pressure to escape without bursting them. Testimony at trial indicated that, while the chemical reaction between the aluminum foil and the caustic liquid produced heat, it would not have caused a flame to result. Rather, the danger of this sort of device is the build-up of pressure in the bottle. When the bottle bursts, the heated caustic liquid will splatter about and injure anyone on whom it lands.

         ¶ 45 The case advanced. Defendant filed a motion to quash his arrest, contending that the police did not have probable cause to arrest him. After hearing the evidence summarized above about the investigation, the trial court denied the motion to quash the arrest. The trial court held that defendant was not in custody until 8:44 a.m., when he attempted to leave the interview room and was informed that he was not allowed to leave. The trial court then determined that there was probable cause to justify defendant's custody. In particular, the trial court noted that the facts giving rise to probable cause included: defendant participated in a heated argument with Morgan at the party; defendant and Morgan were in a volatile relationship; defendant and Morgan's relationship was deteriorating at the time of the offense; at the party, defendant was upset because he had expected to be alone with Morgan but she had arranged a large birthday party; at the party, a possible romantic rival was in attendance and spending time with Morgan; defendant had threatened the partygoers; shortly after the heated argument, Morgan's car was set on fire; defendant's clothes were sweaty, which was consistent with the police hypothesis that defendant was involved in setting Morgan's car on fire and running back to his home; the partygoers believed that defendant was lurking in the shadows, despite the lack of a solid identification; likewise the partygoers believed that defendant set Morgan's car on fire. The trial concluded that defendant had motive and opportunity and that the police investigation to that point reasonably supported the focus on defendant.

         ¶ 46 Defendant also filed a motion to suppress his statements to the police, based on the violations of his rights to remain silent and to counsel. After a hearing in which the parties presented the above-summarized evidence on the circumstances of the interview, the trial court granted in part and denied in part the motion to suppress the statements. The trial court specifically determined that, at 8:18 a.m., defendant first invoked his right to speak with counsel, and this should have caused the questioning to cease but did not. The court suppressed the statements made between 8:18 and 10:26 a.m. The court also determined that, during the second smoking break, at about 11:30 a.m., defendant reinitiated discussing the investigation with the police and, thereafter, knowingly waived his rights to remain silent and to counsel.

         ¶ 47 The trial court specifically held that defendant's statement, at 8:18 a.m., "I told you what happened then. Whatever. I know. Whatever. I will talk to my lawyer now, " was "an invocation of counsel. [The trial court did not] think it could be too much clearer. [The trial court did not] think it[ was] ambiguous. And certainly, at that point the interview or the questioning or interrogation should have stopped. But it did not."

         ¶ 48 The trial court noted that the questioning was not harsh or heavy-handed, and it noted that defendant had demonstrated throughout the improper questioning that his will appeared to be unshaken. When the police did finally honor defendant's invocation of his right to counsel, defendant sat alone in the interview room for an hour. The trial court considered that "one of the primary motivations [is that] defendants always want to know what the police know [and to know] what's going on." The trial court believed that this desire to know what is going on caused defendant to reach out to the police. The court determined, as a matter of fact, that defendant "initiated a conversation reflecting his desire to engage in a generalized discussion of the case."

         ¶ 49 The trial court weighed the testimony of the police and defendant before determining, as a matter of fact, that the version given by the police tended to match up with the facts while defendant's version did not. Particularly, the trial court noted that defendant had testified that he wanted to leave and that the police informed him that the only way he could leave was by agreeing to speak with them. However, during the "hours of interview, " defendant never mentioned "that, hey, wait a minute, you told me that, if I talked to you, I could go home or you were going to get my lawyer here or anything like that." The trial court reasoned that ...


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