from the Circuit Court of the 12th Judicial Circuit, Will
County, Illinois. Circuit No. 07-CF-2219 The Honorable Carla
A. Policandriotes, Judge, presiding.
Attorneys for Appellant: James E. Chadd, Patricia Mysza, and
Todd T. McHenry, of State Appellate Defender's Office, of
Chicago, for appellant.
Attorneys for Appellee: James W. Glasgow, State's
Attorney, of Joliet (Patrick Delfino and Thomas D. Arado, of
State's Attorneys Appellate Prosecutor's Office, of
counsel), for the People.
JUSTICE CARTER delivered the judgment of the court, with
opinion. Justice McDade concurred in the judgment and
opinion. Justice Wright dissented, with opinion.
1 After a jury trial, defendant, Ricardo Gutierrez, was
convicted of first degree murder (720 ILCS 5/9-1(a)(1) (West
2006)) and was sentenced to 68 years in prison. On direct
appeal, this court found that defendant's arrest was
illegal and remanded the case for the trial court to conduct
an attenuation hearing to determine if defendant's
statements to police were admissible despite the illegal
arrest. People v. Gutierrez, 2016 IL App (3d)
130619, ¶ 78. The trial court conducted an attenuation
hearing, concluded that the statements were admissible, and
reinstated defendant's conviction. Defendant appeals,
arguing that the trial court erred in (1) finding that
defendant's statements to police were sufficiently
attenuated from the illegal arrest so as to be admissible at
defendant's trial and (2) refusing to allow defendant to
call as a witness at trial a codefendant, Gabriela Escutia,
who was going to assert her fifth amendment right not to
testify, and refusing to admit at trial Escutia's
petition for an order of protection against the person who
later became the victim of the murder. We agree with
defendant's first argument. Because the evidence relative
to defendant's second argument will likely change upon
remand, we do not rule upon defendant's second argument.
Accordingly, we reverse defendant's conviction and remand
this case for a new trial with defendant's statements to
2 I. BACKGROUND
3 On October 28, 2007, Javier Barrios was shot and killed in
a parking lot near the Meijer gas station in Plainfield,
Illinois. After police officers identified Barrios as the
victim, they ran his information and learned that
codefendant, Gabriela Escutia, had an order of protection
against him. The police officers sent an exigent
circumstances request to the phone company to obtain
Escutia's cell phone information and, with the help of
Secret Service agents, learned of an alternative billing
address for Escutia in Chicago, Illinois. That address turned
out to be the address of defendant's residence. Several
police officers went to that address during the early morning
hours and found Escutia sleeping in bed with defendant.
Defendant and Escutia agreed to accompany police to the
Plainfield police station to answer questions. Defendant and
Escutia were transported to the police station by the police
in separate vehicles. Defendant was handcuffed for a short
period of time during that transport (due to transportation
issues, defendant was initially transported to the Chicago
police station and was handcuffed during that portion of the
4 On the way to the Plainfield police station, Escutia told
police that she and defendant had shot Barrios. When
defendant arrived at the Plainfield police station, he was
placed into an interview room. Defendant later waived his
Miranda rights. After being confronted with
Escutia's statements, defendant gave oral and written
statements incriminating himself in Barrios's murder. The
interview was recorded by the police. Defendant gave his
statements to police approximately six hours after his
5 Defendant and Escutia were subsequently charged with the
first degree murder of Barrios. Prior to trial, defendant
filed a motion to suppress his statements to police, claiming
that the statements were the product of an illegal arrest.
After a hearing, the trial court denied the motion.
6 Defendant's case proceeded to a jury trial. At the
conclusion of the trial, the jury found defendant guilty of
first degree murder, and defendant was subsequently sentenced
to 68 years in prison. On direct appeal, defendant argued
that the trial court erred in denying his motion to suppress
evidence. Id. ¶ 53. A panel of this court, with
one justice dissenting, agreed with defendant and found that
defendant had been illegally arrested at his residence prior
to being transported to the police station. Id.
¶¶ 57-71. This court then remanded the case for the
trial court to hold an attenuation hearing. Id.
7 In January 2018, an attenuation hearing was held by the
trial court. Neither the State nor defendant presented any
additional evidence. After listening to the arguments of the
attorneys, the trial court took the case under advisement.
8 In May 2018, in a separate appeal, a different panel of
this court, with one justice dissenting, found that
Escutia's statements to the police at the police station
were illegally obtained because the police officers
deliberately delayed in reading Escutia her Miranda
rights so that they could obtain statements from her.
People v. Escutia, 2018 IL App (3d) 140509-U,
¶¶ 29-30. This court implied in that decision that
Escutia was illegally arrested at defendant's residence
that morning, along with defendant. Id. ¶ 29.
This court found, therefore, that the oral and written
statements that Escutia had made at the police station were
subject to suppression. Id. ¶¶ 30, 32.
This court reversed Escutia's conviction of first degree
murder and remanded for a new trial with the statements in
question suppressed. Id. ¶ 38.
9 In July 2018, the trial court resumed the attenuation
hearing in the instant case. At the outset of the resumed
hearing, the trial court asked the State and defense counsel
if there were any new matters of fact or law that should be
brought to the trial court's attention. Both attorneys
responded that there were not. Neither the State nor defense
counsel informed the trial court of this court's decision
in the Escutia appeal. The trial court concluded
that defendant's statements to police were sufficiently
attenuated from defendant's illegal arrest so as to be
admissible at defendant's trial and reinstated
defendant's conviction of first degree murder. In
reaching that conclusion, the trial court found that
defendant had been given his Miranda rights at the
Plainfield police station prior to making his statements,
that there was a "substantially significant" period
of time between defendant's illegal arrest and
defendant's statements to police, that the incriminating