SIXTH DIVISION March 31, 2008
No. 1-07-2784
THE PEOPLE OF THE STATE OF ) Appeal from the ILLINOIS, ) Circuit Court ) of Cook County. Plaintiff-Appellant, ) ) v. ) No. 02 CR 15430 ) JAMES DEGORSKI, ) The Honorable ) Vincent M. Gaughan Defendant-Appellee. ) Judge Presiding.
JUSTICE O'MALLEY delivered the opinion of the court:
Defendant, James Degorski, was indicted on 21 counts of
first degree murder for the January 8, 1993 murders of seven
individuals at a Brown’s Chicken restaurant in Palatine,
Illinois. Defendant moved to quash his arrest and suppress an
oral and videotaped statement. The circuit court denied all but
defendant’s motion to suppress his videotaped statement. The
State filed a notice of appeal and a certificate of substantial impairment. The State argues that the circuit court erred in
suppressing defendant’s entire videotaped statement because
defendant previously had been admonished and re-admonished of his
constitutional rights and it was neither necessary nor consistent
with Illinois law to require new Miranda warnings before
commencing the videotaped statement. Defendant contends that the
circuit court's finding that Miranda warnings were required prior
to the videotaped statement was not against the manifest weight 1-07-2784
of the evidence. For the reasons that follow, we reverse the
ruling of the circuit court and remand this matter for further
proceedings consistent with this opinion.
BACKGROUND
On June 11, 2002, defendant was charged with 21 counts of
first degree murder in the shooting and stabbing deaths of seven
workers at a Brown's Chicken restaurant in Palatine, Illinois on
January 8, 1993. In March 2002, the Palatine police department
received a lead from Anne Lockett, who claimed to be defendant's
former girlfriend. Lockett told Palatine police sergeant Bill
King that shortly after the murders, defendant called her while
she was in the hospital. He told her "I did something" and that
she should watch the news. Lockett stated that all of the news
coverage that night related to the murders that occurred at the
Brown's Chicken in Palatine.
Approximately two weeks later, Lockett was released from the
hospital and had another conversation with defendant in his
bedroom, and this time, codefendant Juan Luna was also present. Defendant and codefendant told her that codefendant "wanted to
ice somebody" and they picked the Brown's Chicken in Palatine
because codefendant previously worked there and was familiar with
the manner in which the restaurant was operated. The defendants
told Lockett that they drove to the restaurant in codefendant's
car, parked behind the shopping center and carefully walked
through the snow. The two men entered the restaurant and ordered
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chicken and began eating. Defendant became upset with
codefendant because he was getting grease on his fingers and
defendant worried codefendant would leave fingerprints in the
restaurant.
Before the incident occurred, defendants went into the
bathroom to put on gloves. Defendants confronted the employees
with a knife and codefendant's .38-caliber gun. Lockett told
King that an altercation started when one employee tried to
escape by jumping over the counter and a round was fired.
Codefendant told her that he slit a woman's throat and both
recounted how they shot and killed two remaining victims and that
defendant had to "finish off" one of the victims after
codefendant shot him. Defendants told Lockett that they mopped
up the floor and retrieved the shell casings. Later, defendants
threw the gun used in the murders in the Fox River.
Relative to evidence that was collected at the crime scene,
Lockett told King that defendant indicated that when he shot one
victim, he threw up his french fries. King considered this to be an important piece of information because it could only be known
to individuals who were present at the crime scene. Also
recovered at the crime scene was a partially eaten piece of
chicken which was found in an otherwise empty garbage bag. Based
on Lockett's statement to King, defendants were asked to speak
with investigators and provide buccal swabs for DNA samples,
which were sent to the Illinois State crime lab for analysis.
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After speaking to investigators in Palatine for more than 30
minutes on April 27, 2002, defendant indicated that he would
speak with King again if necessary. On May 7, 2002, the crime
lab notified King that the DNA taken from the partially eaten
chicken in the garbage can matched codefendant's DNA.
After receiving the DNA analysis results, King learned that
Eileen Bakalla had come forward and told authorities that
defendant had admitted his involvement in the murders to her. By
early May 2002, Lockett and Bakalla had testified before the
grand jury about defendant's involvement in the murders.
Palatine Police Chief John Koziol ordered King and Detective Dan
Briscoe to locate defendant and ask him to come to Palatine to
answer questions about the murders. Based on the evidence
collected in the course of the investigation, King learned that
defendant was living with his brother in Indianapolis. King and
Briscoe drove to Indianapolis on May 16, 2002, where undercover
Palatine police officers had been keeping defendant under
surveillance for the previous two days. Through the surveillance King learned that defendant would park his personal vehicle in a
parking lot outside Indianapolis and exchange it for a work
vehicle.
Hamilton County officers and Indiana state troopers met with
King and Briscoe at approximately 2 p.m. on May 16, at the
parking lot where defendant was expected to exchange his vehicle.
King explained to the Indiana officers that he would ask
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defendant to accompany him to Palatine to answer some question
regarding the murders. Defendant arrived at 3:30 p.m. at which
time King and Briscoe approached him and asked if he would
accompany them to Palatine to assist in the murder investigation.
Defendant agreed and asked if he could first transfer his tools
from his work vehicle, which he did. The Indiana and undercover
Palatine officers were in the area; however, they did not
approach defendant with King and Briscoe. Defendant consented to
a pat-down by King to check for weapons and then entered King's
car and sat in the backseat on the driver's side.
Although defendant agreed to accompany King and Briscoe to
Palatine to assist in the investigation, King asked defendant to
sign a consent to travel form, which he did. Defendant was not
advised of his Miranda rights. King followed the Hamilton County
officer to the highway and drove back toward Illinois. During
the ride, the three men made "small talk," but the murder
investigation was not discussed during the drive to Illinois. At
approximately 8 p.m., King received a call from Koziol, who redirected them to the Streamwood police department because the
news media had learned that defendant would be brought in for
questioning at the Palatine police department. King, Briscoe and
defendant arrived at the Streamwood Police Department at 8 p.m.
and went directly into an interview room.
Moments after arriving at the police station, King advised
defendant of his Miranda rights. Defendant stated that he
5 1-07-2784
understood his rights and agreed to speak with King. King
interviewed defendant for about 45 minutes. In this interview,
defendant admitted to his involvement in the murders at the
Brown's Chicken restaurant. During the break, King offered
defendant food, drink and the use of the facilities, all of which
defendant declined. The interview resumed at approximately 9
p.m. and continued for an additional 45 minutes when King and
Briscoe left the interview room and briefed Assistant State's
Attorney McHale (McHale) on the results of the interview.
At 10:30 p.m., King introduced defendant to McHale, who
informed defendant that he was a prosecutor and not defendant's
attorney and proceeded to administer Miranda warnings. King left
the room and McHale and defendant spoke for about an hour. King
resumed questioning defendant around midnight which lasted
approximately three hours. At 4 a.m., McHale joined King and
interviewed defendant for three more hours. At the conclusion of
the interview, McHale asked if defendant would agree to have his
statement video recorded, to which defendant answered that he was exhausted and wanted to sleep. King made arrangements for
defendant to sleep in his cell. While defendant was sleeping,
King went home and McHale slept on a couch in the police station.
At approximately 4 p.m., King notified McHale that defendant
agreed to give a videotaped statement. McHale prepared
introductory remarks, exhibits and arranged for a videographer to
tape the statement. Prior to taping the defendant's statement,
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McHale had defendant sign a consent form for defendant to be
taped and furnished defendant with a photograph of codefendant
and the consent to travel form that defendant signed on May 16,
2002. The videotaping commenced at 4:13 p.m. and the following
colloquy between defendant and McHale occurred:
"[ASSISTANT STATES ATTORNEY]: Okay; let the record
reflect that today is May 17th, 2002. We are in an inter -
- interview room at the Streamwood Police Department.
Present in the room with me, Assistant State's Attorney Mike
McHale, are Sergeant Bill King of the Palatine Police and
James Degorski.
We are here to take the statement of James Degorski
concerning the investigation of the homicidal deaths of
seven individuals which occurred on January 8th, 1993, at
approximately 9:00 p.m., at the Brown's Chicken at 168 West
Northwestern Highway in Palatine, Illinois.
Jim, before we spoke, I explained that I am an assistant
state's attorney, a lawyer and prosecutor and not your lawyer, is that correct?
A. [Indicating] (Nodding)
Q. You need to answer out loud.
A. Yes
Q. Okay. And before we spoke I advised you of your
constitutional rights, is that correct?
A. Yes.
7 1-07-2784
Q. Okay. I need you to just do me a favor and keep your
voice up a little. Okay. Jim, I talked to you earlier and
you told me about the homicidal deaths of the seven
individuals. And at that time you told me in summary that
you and Juan Luna planned a robbery at the Brown's Chicken
in Palatine. And that during the robbery you shot two
people in the cooler and Juan shot the other five and
stabbed the lady. Money was taken and was split up between
you later. Is that correct?
A. [Inaudible].
Q. Okay. Again, I know it's - - I know it's hard but if
you could just keep your voice up for us, okay. Okay, what
I just said to you then, is that correct?
A. Right.
Q. Okay, I'm gonna [sic] read you your rights again. Do
you understand that you have the right to remain silent?
Q. Do you understand that you have - - understand that anything you say can be used against you in a court of law?
Q. Do you understand that you have the right to talk to a
lawyer and have him present with you while you are being
questioned?
A. Yeah.
Q. Do you understand that if you cannot afford to hire a
8 1-07-2784
lawyer and want one, a lawyer will be appointed by the court
to represent you before any questioning.
Q. Understanding these rights, Jim, do you wish to talk
to us now?
A. Not really.
Q. Okay. Earlier, you told us what happened, right? You
spent a long time talking with Bill and myself, is that
correct?
A. Correct.
Q. Okay. I gave you your rights before when I first met
you, is that correct?
Q. Okay. And you told me you understood your rights?
Q. Okay. And I have just given those to you again. Do
you wish to talk to us at this time and tell us everything
you told us before? A. I would much rather just say it in court. I just - -
Q. Okay. I want to show you what I gave you here, that's
a Consent to the Videotape Statement, correct?
Q. Do you see your signature on there?
A. Yes, that's my signature there on the first line.
Q. Can you point to it?
9 1-07-2784
A. Right next to that X right here. [Indicating]
Q. Okay. And you basically said that you were willing to
give a videostate - - statement about this case?
Q. Okay. So - -
A. And on Number 1, it gave me the option to not say
anything if I didn't - -
Q. Okay. What part of it?
A. I think one. That I don't have to say anything - -
right to remain silent.
Q. Are you asking to remain silent? You don't want to
give a video statement today at this time? It's your
choice, Jim.
A. Yeah, I want to - -
Q. I guess - -
A. - - but it would it just - - it'll be easier just to
say it one time - - or say it in court rather. I've already
said it. It's not like I have anything to hide or whatever. Q. Okay. This is what you and I and Bill talked before,
Q. Okay. It is your choice. I mean as you sit here now,
you can tell me, I don't want to talk about this or I do
want to talk about this. Now we've been through this
before. So - -
10 1-07-2784
A. I don't want to talk about - - I mean, I don't want to
talk about it.
Q. So - - all right. You realize by doing this that we
are stopping the tape and we're walking out. Is that what
you want us to do?
A. Then I'll just say it in court then.
Q. Okay. I need you to tell me what you want us to do.
So you want us to stop the tape and do you want us to leave,
or would you like to continue to tell us what happened?
Your choice.
[pause]
A. I don't want to talk about it at this time. I - -
Q. So you - - do you understand that I'm stopping the tape
and I'm walking out? Is that what you want us to do?
Q. Yes, okay. This now concludes the video statement of
James DeGorski."
The duration of the entire videotape was 4 minutes, 32 seconds. Based on defendant's statements, the grand jury testimony
and statements from Lockett and Bakalla and evidence collected at
the crime scene defendant was charged with 21 counts of first
degree murder. Defendant was subsequently transported to the
Cook County jail where he was assigned a cell in division nine.
During the time defendant was in custody he allegedly made a
statement to a Alicia Hines, a paramedic at the Cook County jail,
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regarding his involvement in the murders while receiving medical
treatment.1 On December 13, 2006, defendant filed a motion to
suppress any and all statements he made to police. On August 20,
2007, defendant filed a motion to quash arrest and suppress
evidence.
The circuit court heard arguments on defendant's motions to
quash arrest, suppress evidence and suppress statements. The
court denied defendant's motions to quash arrest and suppress
evidence. However, with regard to the motion to suppress the
statements, the circuit court partially granted and partially
denied it. Three components of defendant's motion were
identified by the court: (1) the oral statements made to police
on May 16 and 17; (2) the videotaped statement; and (3) the
statement made to Alicia Hines while receiving medical treatment.
The circuit court denied defendant's motion to suppress his oral
statements to police and Alicia Hines but granted his motion to
suppress his videotaped statement. The circuit court gave the
following reasons for partially denying and partially granting defendant's motion:
"All right, as to the oral statements, as to the
operative paragraphs in the motion to suppress statements
filed by [defendant]. I find that the State has disproved
those paragraphs beyond a preponderance of the evidence.
1 At times in the record, Hines' first name is spelled "Alesia."
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Looking at the totality of the circumstances under which
those statements were made. I find that [defendant's] will
was not overborne and that his statements were made
voluntarily and the evidence reflects that. As to the video
tape, first - again, you have to look at the totality of the
circumstances, and the attitude of the people that were
questioning [defendant] and how they confronted him, and how
they treated him on Page 154 of the transcript [defendant]
said that he would want to get some sleep before he would
make the video, and they allowed him to go to sleep. On
Page 156 of the transcript [defendant] said his mind set, he
said I don't like to take videos, even at parties, but I'll
do it here.
So the next event is after [defendant] sleeps, the
consent to video is signed and [defendant] is taken into the
room with the videographer *** and [the] Assistant State's
Attorney (ASA) *** and Sergeant King. There's a little
colloquy before [the ASA] starts to give [defendant] his constitutional rights under Miranda and Escobedo and there
is a point where it could be interpreted as not being very
clear when he said not really.
You have to look at [the ASA's] conduct also. Certainly
when [defendant] requested sleep, there was no problem about
giving him sleep or rushing him right into video. So I
think when I say it is my opinion is that there was nothing
13 1-07-2784
unjust or unlawful or unethical about questioning it
further. [The ASA] did and the final result was [defendant]
did not want to make a video statement. So my finding there
is that whole video statement goes out as a violation of
Miranda not that it's involuntary. So that means that if
[defendant] testifies, that part of the statement can come
in."
The State properly filed its certificate of substantial
impairment pursuant to Illinois Supreme Court Rule 604(a)(1) (210
Ill. 2d R. 604(a)(1)) and now appeals the ruling of the circuit
court.
ANALYSIS
I. Standard of Review
Courts of review in Illinois generally apply a bifurcated
standard of review in situations where a ruling presents a mixed
question of law and fact. People v. Jones, 215 Ill. 2d 261, 267
(2005); People v. Ballard, 206 Ill. 2d 151, 162-63 (2002); People
v. Watson, 214 Ill. 2d 271, 279 (2005). In the instant case, we are called upon to review a circuit court's ruling on a motion to
suppress, which is a mixed question of law and fact. People v.
Rivera, 227 Ill. 2d 1, 7-8 (2007). At a hearing on a defendant's
motion to suppress, the circuit court's function is to determine
the credibility of the witnesses, the weight to be assigned to
their testimony and the inferences to be drawn from the evidence.
Ballard, 206 Ill. 2d at 162-63. In determining whether a trial
14 1-07-2784
court has properly ruled on a motion to suppress, the reviewing
court accords great deference to the findings of fact and
credibility determinations made by the circuit court which will
be reversed on appeal only if they are against the manifest
weight of the evidence. In re Christopher K., 217 Ill. 2d 348,
373 (2005); People v. Braggs, 209 Ill. 2d 492, 505 (2003). We
review de novo, however, the ultimate question posed by the legal
challenge to the circuit court's ruling on a suppression motion.
People v. Nicholas, 218 Ill. 2d 104, 116 (2005).
II. Necessity of New Miranda Warnings
The circuit court ruled that the entire video would be
suppresses due to a "Miranda violation." Since it is clear that
defendant received Miranda warnings in full on two occasions
during previous interviews, the issue squarely presented before
this court is whether the circuit court erred in ruling that ASA
McHale was required to administer fresh Miranda warnings prior to
commencing the videotaped statement. The State argues that the
circuit court erred because re-admonishment of warnings was not required by Illinois law under the circumstances here. Defendant
argues that the circuit court’s finding was not against the
manifest weight of the evidence because the record supports a
finding that previous warnings had become stale, the admission of
the videotape serves no purpose other than to remind the jury
that defendant invoked his right to silence in violation of Doyle
v. Ohio, 426 U.S. 610, 49 L. Ed 91, 96 S. Ct. 2240 (1976) and the
15 1-07-2784
State impermissibly employed the "question first" and advise
defendant of Miranda rights "later" approach under Missouri v.
Seibert, 542 U.S. 600, 159 L. Ed. 2d 643, 124 S. Ct. 2601 (2004).
Our supreme court has specifically addressed when, and under
what circumstances, Miranda warnings can become stale in People
v. Garcia, 165 Ill. 2d 409, 425-26 (1995), (citing to 1 W. LaFave
& J. Israel, Criminal Procedure §6.8, at 520 (1984) and Stumes v.
Solem, 752 F.2d 317, 321 (8th Cir. 1985), for the proposition
that "[i]t is generally accepted that fresh Miranda warnings are
not required after the passage of several hours"). The Garcia
court further determined that it would be ridiculous to require
police to re-advise an accused of his or her Miranda rights
following each break in questioning. Garcia, 165 Ill. 2d at 425-
26. The rule announced in Garcia is that new warnings are only
required in those situations where warnings given at a previous
interrogation are "so stale and remote that a substantial
possibility exists that the suspect was unaware of his or her
constitutional rights at the time subsequent interrogation occurs." Garcia, 165 Ill. 2d at 426. Furthermore, the totality
of the circumstances should be addressed by the circuit court in
determining whether a defendant understands his constitutional
rights in post-Miranda warning interrogations. Garcia, 165 Ill.
2d at 426, citing Upton v. State, 257 Ark. 424, 429, 516 S.W.2d
904, 907-08 (1974).
The record establishes that defendant had been offered food,
16 1-07-2784
drink and visits to the facilities. McHale testified that he
questioned defendant with regard to his treatment by King and the
police in private and defendant responded that the police treated
him fine. Defendant was advised of his rights at approximately
8:15 p.m. by King and again at approximately 10:30 p.m. by McHale
on May 16 and subsequently reminded of his rights several times
following the full Miranda warnings at 10:30 p.m. Following the
10:30 p.m. warnings, defendant was questioned for about an hour,
and again offered food, drink and a visit to the bathroom and
then interviewed by King for about three hours. After a break,
King and McHale interviewed defendant for three hours and then
honored defendant’s request to sleep.
At approximately 3:30 p.m. on May 17, defendant told King
that he would give a videotaped statement. The videotaped
statement began at 4:13 p.m. on May 17, and defendant was re-
advised of his constitutional rights following a summary of
defendant’s previous statement by McHale. According to the
record, the longest period of time that could have elapsed during which defendant was not fully advised of his Miranda rights was
from 10:30 p.m. on May 16, to 4:13 p.m. on May 17, or
approximately 18 hours, during which defendant received
"reminders" of his constitutional rights as opposed to a full
warning under Miranda. After summarizing the evidence presented
at the hearing, the circuit court entered a finding that "the
whole video statement goes out as a violation of Miranda."
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We disagree with the circuit court’s ruling and find that
the totality of the circumstances in this case leads to the
inescapable conclusion that defendant's previous Miranda warnings
were not so remote and stale that he was not aware of his
constitutional rights to silence and to an attorney at the time
of the videotaped statement. In our view, the events that
occurred during the passing of those approximately 18 hours
between the administration of warnings are of particular
importance in analyzing the totality of the circumstances in the
case sub judice. The record reflects that after twice receiving
full Miranda warnings, there were two periods of questioning
during which defendant gave detailed and lengthy accounts of the
events on January 8, 1993. Defendant was also given breaks and
allowed to use the bathroom. It is not clear whether defendant
chose to eat during this period of time, but he was given a
bottle of water to drink and he was allowed to use the bathroom
at will and sleep from approximately 7 a.m. to approximately 3
p.m. on May 17. In summary, after being warned of his constitutional rights at 10:30 p.m. on May 16, the record shows
that defendant gave statements for approximately seven hours,
slept for about eight hours and had periodic breaks within that
18-hour time frame.
We cannot agree with the circuit court that a substantial
probability exists that defendant became unaware of his rights
following an 18-hour period of time wherein he gave detailed
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statements of his involvement pursuant to a valid waiver of his
rights and spent a majority of those hours sleeping and taking
breaks between interviews. Also, defendant was reminded of his
constitutional rights and waiver thereof several times during
this period. In defendant's videotaped statement, McHale asked
defendant: "Jim, before we spoke, I advised you of your
constitutional rights, is that correct?" and defendant answered
"yes." Defendant acknowledged McHale's reference to the
constitutional rights and did not suggest that he had forgotten
what rights McHale was referring to or ask that the question be
clarified. More importantly, defendant signed a consent to
videotape form prior to the commencement of his statement which
gave defendant the option of remaining silent. Defendant stated
that he was aware of his right to remain silent and referenced
the consent form on videotape where he said:
"[DEFENDANT]: A. And on number 1, it gave me the option to
not say anything if I didn't - -
[ASSISTANT STATE'S ATTORNEY]: Q. Okay, what part of it? Q. I think one. That I don't have to say anything - -
right to remain silent."
Although we clearly state here that "reminders" are no substitute
for full Miranda warnings when required by law, in a totality of
the circumstances analysis where a circuit court must decide
whether previous warnings were so stale that defendant had
forgotten his constitutional rights, a reminder is not wholly
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irrelevant.
We find it equally as import to the totality of the
circumstances analysis that nothing occurred in the 18 hours that
would have led defendant to believe that the nature of his
detainment or questioning had changed. Defendant was never
released from custody and thus led to believe that the
interrogation had ceased. Upon arrival at the Streamwood police
department, he was Mirandized and it was clear that he was
neither a witness nor an informant. Defendant was the focus of
the investigation as a suspect and this focus did not change
during the relevant time period. Defendant gave more than seven
hours of statements during which he detailed his and
codefendant's involvement in the murders. Finally, defendant was
not transferred to a new facility with new interrogators or
questioned by different agencies which might have led to the
conclusion that the previous interrogation had ceased and his
waiver of rights had become ineffective.
We hold that the evidence demonstrates that defendant had not become unaware of his constitutional rights and knew that he
was in custody and being interrogated as a suspect in the murders
at issue following a valid waiver of his Miranda rights. A
finding that the videotaped interview commenced following a
sufficiently protracted period of time during which defendant had
forgotten his constitutional rights is against the manifest
weight of the evidence. As a result, the legal conclusion that a
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Miranda violation occurred because McHale failed to initially re-
advise defendant of his rights and, thus the entire videotaped
statement should be suppressed, was incorrect.
III. Procedures for Videotaped Statements
Defendant further asserts that the entire videotape must be
suppressed because: (1) it shows defendant actually exercising
his right to silence which is in violation of Doyle, 426 U.S.
610, 49 L. Ed. 2d 91, 96 S. Ct. 2240; and (2) the State employed
the impermissible "question first and give Miranda warnings
later" technique prohibited in Seibert, 542 U.S. 600, 159 L. Ed.
2d 643, 124 S. Ct. 2601. We disagree with defendant on both
claims. First, the State conceded in its brief and at oral
argument that allowing the jury to view defendant actually
exercising his Miranda rights is improper and a violation of
Doyle 426 U.S. 610, 49 L. Ed. 2d 91, 96 S. Ct. 2240. The State
does not seek to admit any part of the videotape that involves
defendant attempting to exercise his constitutional rights.
Therefore, the circuit court must determine at what point the videotaped statement will be stopped to avoid a Doyle violation.
Second, we find this matter to be easily distinguishable
from Seibert. After being charged with first degree murder for
her role in a disabled victim’s death, Seibert sought to exclude
both her prewarning and postwarning statements because she was
questioned first until she gave an inculpating statement and then
advised of her fifth amendment rights prior to giving a second,
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redundant statement. Seibert, 542 U.S. at 605, 159 L. Ed. at
650-51, 124 S. Ct. at 2606. Seibert is distinguishable from this
case for two reasons. First, we have concluded that defendant
here was previously and properly advised of his constitutional
rights which extended to his videotaped statement prior to
exercising his right to silence. In Seibert, the defendant was
not advised of her rights until she had given an incriminating
statement. Second, at the suppression hearing in Seibert, the
interrogating officer testified that he made a " 'conscious
decision' to withhold Miranda warnings, thus resorting to an
interrogation technique he had been taught: question first, then
give the warnings, and then repeat the question 'until I get the
answer that she's already provided once.' " The same officer
further acknowledged that Seibert's ultimate statement was
"'largely a repeat of information ... obtained' prior to the
warning. [Citation.]" Seibert, 542 U.S. at 605-06, 159 L. Ed. at
651, 124 S. Ct. at 2606. The record in this case is devoid of
any evidence that the State intentionally devised a plan to obtain a statement from defendant on videotape by tricking him
into doing so without first receiving the proper warnings.
Notwithstanding our findings that the manner in which the
videotaped statement was carried out was not in violation of
Seibert, we must point out that commencing the process with
Miranda warnings would have avoided any question as to the
propriety of this statement. In other words, this interlocutory
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appeal would have been unnecessary if the State had advised
defendant of his Miranda rights at the beginning of the
videotape. More importantly, all parties concerned here would
have avoided the lengthy delay in litigation and motions to
expedite appeals and oral arguments if warnings had been issued
first. Clearly, the better practice is to begin the
memorialization of statements with full Miranda warnings.
CONCLUSION
For the foregoing reasons, we hold that the circuit court’s
ruling that defendant required fresh Miranda warnings was against
the manifest weight of the evidence. The evidence in the record
strongly supports the conclusion that defendant was aware of his
rights at the commencement of the videotaped statement. As a
result, the statement given by defendant prior to the exercise of
his constitutional rights was not a violation of Miranda and the
first portion of the videotaped statement is admissible.
Accordingly, the judgment of the circuit court is reversed and
remanded for the court to determine what portion of the remainder of the statement will be viewed by the jury in light of
defendant's constitutional right not to testify.
Reversed and remanded with directions.
McBRIDE, P.J., concurs.
JUSTICE McNULTY, dissenting:
The videotape that prosecutors seek to use against defendant
in this case shows that defendant exercised his right to silence
23 1-07-2784
once the interviewing officer reminded defendant of his Miranda
rights. The trial judge found that the defendant's response to
the warnings showed a substantial possibility that he had become
unaware of the full range of his constitutional rights by the
time the videotaping began. See Garcia, 165 Ill. 2d at 426. The
judge concluded that the Miranda warnings, last given 18 hours
before the videotaping, had grown stale. The finding accords
with the manifest weight of the evidence. The failure to repeat
the warnings before beginning to videotape, under the
circumstances of this case, violated Miranda. Therefore, the
trial court correctly disallowed the videotape as part of the
prosecution's case-in-chief. I would affirm the trial court's
decision. I respectfully dissent.
24 REPORTER OF DECISIONS - ILLINOIS APPELLATE COURT
TITLE THE PEOPLE OF THE STATE OF ILLINOIS, of Case Plaintiff-Appellant,
v.
JAMES DEGORSKI,
Defendant-Appellee.
Docket No . 1-07-2784
COURT Appellate Court of Illinois First District, Sixth Division
Opinion March 31, 2008 Filed
JUSTICES JUSTICE O'MALLEY delivered the opinion of the court: McBRIDE, P.J. concurs; McNulty, J. dissents
Appeal's Appeal from the Circuit Court of Cook County. Origination The Hon. Vincent M. Gaughan, Judge Presiding.
Counsel for For Appellants, Richard A. Divine, State's Attorney, County of APPELLANTS Cook, James E. Fitzgerald, Thomas Biesty, Linas Kelecius, Alan J. Spellberg, Assistant State's Attorneys, of Counsel, Chicago, IL.
Counsel for For Appellees, Edwin A. Burnette, Public Defender of Cook APPELLEES County, Lester Finkle, Mark Levitt, Assistant Public Defenders, of Counsel, Chicago, IL.