People v. Jones
Opinion
2021 IL App (1st) 180734-U No. 1-18-0734 Order filed September 8, 2021 Third Division
NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except in the limited circumstances allowed under Rule 23(e)(1). ______________________________________________________________________________ IN THE APPELLATE COURT OF ILLINOIS FIRST DISTRICT ______________________________________________________________________________
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the ) Circuit Court of Plaintiff-Appellee, ) Cook County ) v. ) No. 16CR-12051 ) PARIS JONES, ) Honorable ) Vincent Gaughan, Defendant-Appellant. ) Judge Presiding.
JUSTICE BURKE delivered the judgment of the court. Justice Howse concurred in the judgment. Justice Ellis specially concurred, with opinion.
ORDER
¶1 Held: We reverse and remand for further proceedings where the trial court failed to comply with Supreme Court Rule 431(b) by asking the prospective jurors whether they understood the principles in the rule and where the evidence was closely balanced. We also find that defendant’s trial counsel was not ineffective for failing to move to suppress defendant’s custodial statements on the basis that they had been obtained in violation of Miranda.
¶2 Following a jury trial, defendant Paris Jones was found guilty of the first degree murder of
Damond Avant on an accountability basis. Defendant drove the vehicle in which Tyren Reese, No. 1-18-0734
Kenyon Jones (Kenyon), and Corey Griffin were passengers. 1 Defendant stayed in the vehicle
while Reese and Griffin exited the vehicle and shot Avant.
¶3 On appeal, defendant contends that the trial court erred in failing to comply with Supreme
Court Rule 431(b) (eff. Jul. 1, 2012) and People v. Zehr, 103 Ill. 2d 472 (1984) by failing to ask
the prospective jurors if they understood the constitutional principles contained in the supreme
court’s decision in Zehr as codified in Rule 431(b). See People v. Thompson, 238 Ill. 2d at 598,
617 (2010) (Burke, J., dissenting, joined by Freeman, J.). Defendant also contends that his trial
counsel should have filed a motion to suppress his custodial statement to police where the
detectives engaged in an improper “question first, warn later” style of questioning in violation of
Missouri v. Seibert, 542 U.S. 600 (2004). For the reasons that follow, we reverse the judgment of
the circuit court and remand for further proceedings.
¶4 I. BACKGROUND
¶5 A. Motion to Suppress
¶6 Prior to trial, defendant filed a motion to suppress his custodial statements to police. In the
motion, defendant asserted that he was not able to fully appreciate and understand his Miranda
rights because of his physical and emotional capacity and condition at the time of the interrogation.
Defendant asserted that he had been in an automobile accident hours before the interview and had
not received medical attention. Defendant also asserted that he had ingested alcohol and marijuana
1 Defendant was indicted along with Reese and Kenyon. Prior to trial, defendant filed a motion for severance, which the trial court granted. This court has previously decided Kenyon and Reese’s separate appeals. See People v. Reese, 2020 IL App (1st) 172830-U (unpublished order under Supreme Court Rule 23); People v. Jones, 2021 IL App (1st) 171623-U (unpublished order under Supreme Court Rule 23). Reese and Kenyon are not parties to this appeal.
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prior to the interview. Defendant maintained that he was therefore unable to give a voluntary,
knowing, and intelligent waiver of his constitutional rights.
¶7 At a hearing on defendant’s motion, Chicago police detective Greg Swiderek testified that
he conducted a recorded interview of defendant at the police station following the shooting.
Detective Swiderek testified that he did not observe that defendant had any injuries and defendant
did not complain of any injuries. Detective Swiderek also testified that defendant did not display
any signs of impairment or smell of alcohol. Detective Swiderek interviewed defendant on several
occasions throughout the day and defendant never complained of injuries, requested medical
treatment, or showed signs of impairment. The State also played portions of defendant’s electronic
recorded interview (ERI) with Detective Swiderek.
¶8 In denying defendant’s motion, the court noted that defendant’s responses to Detective
Swiderek’s questions were “appropriate” and defendant did not show any signs of impairment.
The court observed that Detective Swiderek testified that he did not smell alcohol and defendant
did not ask for medical treatment or complain about any injuries or pain.
¶9 B. Voir Dire
¶ 10 Prior to selecting the jury, the trial court informed the prospective jurors about some “basic
principles of constitutional law” in criminal cases. In pertinent part, the court informed the jury
that (1) a defendant is presumed innocent until a jury determines that he is guilty beyond a
reasonable doubt; (2) the State has the burden of proving the defendant guilty beyond a reasonable
doubt; (3) a defendant does not have to present any evidence at all and may rely on the presumption
of innocence; and (4) a defendant does not have to testify. After reading each principle to the
prospective jurors, the court asked the prospective jurors to raise their hand if they did not “accept”
that particular constitutional principle. For each principle, the court noted that none of the
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prospective jurors raised their hand. The court then asked the prospective jurors to raise their hand
if they had any “problems or qualms” about applying each constitutional principle. Again, the
court noted each time that none of the prospective jurors raised their hand.
¶ 11 C. Trial
¶ 12 The evidence introduced at defendant’s trial showed that at 9 p.m. on December 3, 2014,
Takia Martin, Avant’s girlfriend, was walking with Avant in the area of West Chicago Avenue
and North Mayfield Avenue. As they were walking, Martin saw two men walk out of a nearby
alleyway. One of the men was “heavy set” and the other was “short and skinny.” One of the men
was dressed in all black and the other was wearing a black sweater and light blue jeans. Both of
the men wear wearing hoods over their heads. As Martin and Avant approached the alley where
Martin had seen the two men, Martin observed a burgundy truck in the alleyway. Martin and Avant
continued walking past the alleyway.
¶ 13 Martin later observed the burgundy truck from the alleyway drive past them and stop
behind them. Martin turned to look over her shoulder and noticed that the back door of the truck
was open. Martin then heard a gunshot and saw the heavy set man dressed in all black that she had
seen earlier. Avant fell to the ground. The short and skinny man then came “from the street,” stood
over Avant, and shot him multiple times. The two men then got into the burgundy truck and drove
away.
¶ 14 Shortly after the shooting, Chicago police officer Jorge Munoz observed a burgundy SUV
travelling at a high rate of speed and failing to stop at a stop sign. Officer Munoz conducted a
traffic stop of the SUV and approached the driver’s side of the vehicle. As he neared the vehicle,
Officer Munoz observed three or four occupants in the vehicle and asked the occupants to show
their hands.
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2021 IL App (1st) 180734-U No. 1-18-0734 Order filed September 8, 2021 Third Division
NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except in the limited circumstances allowed under Rule 23(e)(1). ______________________________________________________________________________ IN THE APPELLATE COURT OF ILLINOIS FIRST DISTRICT ______________________________________________________________________________
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the ) Circuit Court of Plaintiff-Appellee, ) Cook County ) v. ) No. 16CR-12051 ) PARIS JONES, ) Honorable ) Vincent Gaughan, Defendant-Appellant. ) Judge Presiding.
JUSTICE BURKE delivered the judgment of the court. Justice Howse concurred in the judgment. Justice Ellis specially concurred, with opinion.
ORDER
¶1 Held: We reverse and remand for further proceedings where the trial court failed to comply with Supreme Court Rule 431(b) by asking the prospective jurors whether they understood the principles in the rule and where the evidence was closely balanced. We also find that defendant’s trial counsel was not ineffective for failing to move to suppress defendant’s custodial statements on the basis that they had been obtained in violation of Miranda.
¶2 Following a jury trial, defendant Paris Jones was found guilty of the first degree murder of
Damond Avant on an accountability basis. Defendant drove the vehicle in which Tyren Reese, No. 1-18-0734
Kenyon Jones (Kenyon), and Corey Griffin were passengers. 1 Defendant stayed in the vehicle
while Reese and Griffin exited the vehicle and shot Avant.
¶3 On appeal, defendant contends that the trial court erred in failing to comply with Supreme
Court Rule 431(b) (eff. Jul. 1, 2012) and People v. Zehr, 103 Ill. 2d 472 (1984) by failing to ask
the prospective jurors if they understood the constitutional principles contained in the supreme
court’s decision in Zehr as codified in Rule 431(b). See People v. Thompson, 238 Ill. 2d at 598,
617 (2010) (Burke, J., dissenting, joined by Freeman, J.). Defendant also contends that his trial
counsel should have filed a motion to suppress his custodial statement to police where the
detectives engaged in an improper “question first, warn later” style of questioning in violation of
Missouri v. Seibert, 542 U.S. 600 (2004). For the reasons that follow, we reverse the judgment of
the circuit court and remand for further proceedings.
¶4 I. BACKGROUND
¶5 A. Motion to Suppress
¶6 Prior to trial, defendant filed a motion to suppress his custodial statements to police. In the
motion, defendant asserted that he was not able to fully appreciate and understand his Miranda
rights because of his physical and emotional capacity and condition at the time of the interrogation.
Defendant asserted that he had been in an automobile accident hours before the interview and had
not received medical attention. Defendant also asserted that he had ingested alcohol and marijuana
1 Defendant was indicted along with Reese and Kenyon. Prior to trial, defendant filed a motion for severance, which the trial court granted. This court has previously decided Kenyon and Reese’s separate appeals. See People v. Reese, 2020 IL App (1st) 172830-U (unpublished order under Supreme Court Rule 23); People v. Jones, 2021 IL App (1st) 171623-U (unpublished order under Supreme Court Rule 23). Reese and Kenyon are not parties to this appeal.
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prior to the interview. Defendant maintained that he was therefore unable to give a voluntary,
knowing, and intelligent waiver of his constitutional rights.
¶7 At a hearing on defendant’s motion, Chicago police detective Greg Swiderek testified that
he conducted a recorded interview of defendant at the police station following the shooting.
Detective Swiderek testified that he did not observe that defendant had any injuries and defendant
did not complain of any injuries. Detective Swiderek also testified that defendant did not display
any signs of impairment or smell of alcohol. Detective Swiderek interviewed defendant on several
occasions throughout the day and defendant never complained of injuries, requested medical
treatment, or showed signs of impairment. The State also played portions of defendant’s electronic
recorded interview (ERI) with Detective Swiderek.
¶8 In denying defendant’s motion, the court noted that defendant’s responses to Detective
Swiderek’s questions were “appropriate” and defendant did not show any signs of impairment.
The court observed that Detective Swiderek testified that he did not smell alcohol and defendant
did not ask for medical treatment or complain about any injuries or pain.
¶9 B. Voir Dire
¶ 10 Prior to selecting the jury, the trial court informed the prospective jurors about some “basic
principles of constitutional law” in criminal cases. In pertinent part, the court informed the jury
that (1) a defendant is presumed innocent until a jury determines that he is guilty beyond a
reasonable doubt; (2) the State has the burden of proving the defendant guilty beyond a reasonable
doubt; (3) a defendant does not have to present any evidence at all and may rely on the presumption
of innocence; and (4) a defendant does not have to testify. After reading each principle to the
prospective jurors, the court asked the prospective jurors to raise their hand if they did not “accept”
that particular constitutional principle. For each principle, the court noted that none of the
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prospective jurors raised their hand. The court then asked the prospective jurors to raise their hand
if they had any “problems or qualms” about applying each constitutional principle. Again, the
court noted each time that none of the prospective jurors raised their hand.
¶ 11 C. Trial
¶ 12 The evidence introduced at defendant’s trial showed that at 9 p.m. on December 3, 2014,
Takia Martin, Avant’s girlfriend, was walking with Avant in the area of West Chicago Avenue
and North Mayfield Avenue. As they were walking, Martin saw two men walk out of a nearby
alleyway. One of the men was “heavy set” and the other was “short and skinny.” One of the men
was dressed in all black and the other was wearing a black sweater and light blue jeans. Both of
the men wear wearing hoods over their heads. As Martin and Avant approached the alley where
Martin had seen the two men, Martin observed a burgundy truck in the alleyway. Martin and Avant
continued walking past the alleyway.
¶ 13 Martin later observed the burgundy truck from the alleyway drive past them and stop
behind them. Martin turned to look over her shoulder and noticed that the back door of the truck
was open. Martin then heard a gunshot and saw the heavy set man dressed in all black that she had
seen earlier. Avant fell to the ground. The short and skinny man then came “from the street,” stood
over Avant, and shot him multiple times. The two men then got into the burgundy truck and drove
away.
¶ 14 Shortly after the shooting, Chicago police officer Jorge Munoz observed a burgundy SUV
travelling at a high rate of speed and failing to stop at a stop sign. Officer Munoz conducted a
traffic stop of the SUV and approached the driver’s side of the vehicle. As he neared the vehicle,
Officer Munoz observed three or four occupants in the vehicle and asked the occupants to show
their hands. At that point, the driver of the vehicle “took off” and the vehicle sped away.
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¶ 15 Chicago police officer Richard Corona, who was on patrol nearby, pursued the speeding
vehicle. Officer Corona watched the vehicle crash into a light post. He saw multiple people run
out of the vehicle after the crash. Defendant fled from the vehicle and hid under a nearby truck.
Chicago police officer Paul Heyden, who was also on the scene after the SUV crash, pulled
defendant out from under the truck and took him into custody.
¶ 16 Officer Heyden testified that he had known defendant for about ten years and considered
him a friend. Officer Heyden transported defendant to the police station. Later that evening, Officer
Heyden took defendant back to the scene to follow the route that he drove after the shooting
because defendant was not sure if someone had thrown a gun out of the window of the burgundy
SUV. However, Officer Heyden did not discover any guns.
¶ 17 At the police station, defendant gave an electronically recorded interview (ERI). The ERI
was conducted by Detective Swiderek. Detective Swiderek testified that he introduced himself to
defendant around 12:45 a.m. He told defendant that he was at the police station regarding a
shooting and advised defendant of his Miranda rights. Defendant indicated that he understood his
Miranda warnings and agreed to talk to Detective Swiderek. Detective Swiderek interviewed
defendant throughout the early morning hours of December 4, and was also interviewing Kenyon
in a separate room during that same period.
¶ 18 The ERI video was played for the jury. In the ERI, Detective Swiderek first informed
defendant that he was at the police station because of a shooting. Detective Swiderek told
defendant that he had to read him his Miranda rights. Detective Swiderek informed defendant of
his Miranda rights and defendant indicated that he understood his rights and agreed to speak with
Detective Swiderek. Defendant first denied any knowledge of a shooting, but during subsequent
interviews, acknowledged that he was the driver of the burgundy SUV, which belonged to
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Kenyon’s girlfriend. Defendant stated that he drove because he was the only one who had a driver’s
license and insurance.
¶ 19 Defendant told Detective Swiderek that on the night of the shooting, he and Kenyon were
driving around celebrating the life of defendant’s cousin who had been shot and killed in 2010.
Reese and Griffin 2 called Kenyon, and Kenyon told defendant to pick them up. Defendant stated
that he did not know Reese and Griffin, but had seen them around the neighborhood. Charles
Moore, defendant’s cousin, was also in the vehicle. The group decided to go to the liquor store.
Defendant stated that while they were at the liquor store, Reese said, “let’s go see who we see
bro.” When Detective Swiderek asked defendant what that meant, defendant responded that “they
wanted to go see who they can kill.” Defendant stated he knew what they intended to do, but he
lied to Detective Swiderek earlier because he was nervous and just got out of prison.
¶ 20 Defendant said the atmosphere in the car started as a celebration of his cousin’s life, but
the mood changed to anger as they thought about how he had been killed. Griffin told defendant
to drive to the “hood,” and then directed him to park the SUV near a building. Griffin left the
vehicle, ran into the building, and returned a few minutes later. Defendant knew that Griffin had
gone into the building to retrieve a gun. They continued driving around the area looking for rival
gang members. Defendant stated that he did not see any rival gang members, but he did see some
“females.” He told Detective Swiderek, however, that he was “not finna kill no girls.” Eventually,
Reese told defendant to circle the block and then told him to stop the vehicle. Defendant did not
see anyone when Reese told him to stop the vehicle, but he stopped the car where Reese indicated
and left the vehicle in drive. He told Detective Swiderek that he left the vehicle in drive because
2 Defendant referred to Griffin as “YB” or “Coasta.”
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he knew what Reese was going to do and he wanted to be able to make a quick escape. Kenyon
handed Reese a silver 9 millimeter automatic pistol that Kenyon retrieved from the vehicle’s center
console. Defendant told the detectives that Kenyon’s girlfriend bought the gun and Kenyon had
shown it to defendant two days earlier. Defendant knew the gun was in the vehicle when he got
into the car even though he did not see it until Kenyon gave the gun to Reese. Reese and Griffin
then put their hoods up and exited the vehicle.
¶ 21 Defendant did not see the shooting, but he knew Reese and Griffin shot someone because
he heard between 11 and 14 gunshots from two different guns. Defendant heard the gunshots from
the 9 millimeter gun Kenyon gave to Reese and from a second gun of a smaller caliber. When
Reese and Griffin returned to the vehicle, Griffin said “man[,] I just killed that b****” and “I just
shot him in his s***.” Defendant then sped away from the area. While driving away, defendant
failed to stop at a sign. A police car pulled the vehicle over and defendant stopped the vehicle.
Kenyon and the others in the car told defendant to keep driving so he sped away as the officer
approached the vehicle. Defendant said that while they were being chased by police, Griffin and
Reese kept trying to open up the vehicle’s doors. Defendant believed they were either trying to get
out of the vehicle or were trying to throw the guns out of the vehicle. Defendant then crashed the
vehicle and was subsequently arrested.
¶ 22 Evidence technicians from the Chicago Police Department (CPD) recovered fired cartridge
casings from the scene of the shooting and recovered a fired bullet from Avant’s body at the
hospital. A CPD forensic investigator recovered three guns and a firearm magazine from the
burgundy SUV. Two of the guns were nine millimeter handguns and the other was a .25 caliber
handgun. One of the nine millimeter handguns matched the automatic pistol defendant described
as belonging to Kenyon’s girlfriend. The parties stipulated that a forensic scientist would testify
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that the recovered cartridge cases and bullet fragments recovered from the scene and Avant’s body
were from the 9 millimeter handguns.
¶ 23 Defendant testified on his own behalf that on December 3, he and his friends were
celebrating the birthday of his cousin Brandon, who had been killed several years prior. After
setting up a memorial for Brandon, defendant met up with Moore, Kenyon, Griffin, and Reese.
Defendant had been drinking alcohol that day, and they decided to go a to a liquor store to purchase
more alcohol. They all got into a Chevrolet Suburban that belonged to Kenyon’s girlfriend.
Defendant drove because he was the only person in the vehicle with a license and insurance.
Defendant testified that they listened to music in the vehicle and the atmosphere was “[j]ust a
bunch of people that knew each other just around each other.” After purchasing liquor, defendant
drove the vehicle back toward the area of the memorial.
¶ 24 Defendant noticed the gas tank on the vehicle was low, so he started to drive toward a gas
station. Before he reached the gas station, Reese, who was sitting in the back seat, told defendant
to turn and then directed defendant to drive around the block. Reese then instructed defendant to
park the car, which defendant did. Defendant then started talking with Kenyon who was sitting in
the passenger seat. Reese and Griffin exited the vehicle and told defendant that they would be right
back. Defendant did not see where they went after they left the vehicle and defendant had not seen
anyone in the vehicle with a gun.
¶ 25 Defendant then heard several gunshots and heard more than one gun being fired. Reese and
Griffin got back into the car and defendant drove away “pretty fast.” Defendant testified that he
was scared because he did not know where the shots had come from. As defendant was driving
away, Griffin said “I just shot him in his s***. I killed him.” Defendant then drove the vehicle
through an intersection without stopping at a stop sign. A police officer conducted a traffic stop of
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the vehicle and defendant pulled the vehicle over to the side of the road. As the officer approached
the vehicle, Reese and Griffin pulled guns out their “hooded sweatshirts” and tried to throw the
guns into the front seat of the vehicle. Defendant testified that was the first time he had seen anyone
in the vehicle with a gun that night. He acknowledged that one of the guns was the automatic pistol
that Kenyon had shown him two days prior. Reese and Griffin told defendant to not pull over and
not stop the vehicle.
¶ 26 Defendant sped off and the next thing he remembered was crashing the vehicle. Defendant
testified that he was not wearing a seatbelt at the time of the crash and the airbags deployed.
Defendant testified that his legs were “wobbly” when he got out of the vehicle. He ran until his
legs “gave out” and then he fell to the ground and rolled under a nearby truck. Defendant stayed
under the truck until officers pulled him out and arrested him.
¶ 27 Officers transported defendant to the police station and placed him in an interview room.
Defendant testified that he was in the interview room for about 30 minutes before “Officer Hall”
came and spoke to him for about 15 minutes. Detective Swiderek then came into the room and
introduced himself to defendant. Detective Swiderek spoke to defendant for about three minutes.
He told defendant that he was there for questioning regarding a shooting and that they were going
to test his hands and clothes for ballistics evidence. Defendant was then moved to a second
interview room where he sat alone for a couple hours. Detective Swiderek and his partner then
came into the room and interviewed defendant.
¶ 28 Defendant believed during the interview that Detective Swiderek was trying to be his
“friend” and “wanted to get his case solved.” Defendant believed that Detective Swiderek wanted
him “to place those guns in the hands of the person who fired them.” Defendant testified, however,
that he did not see any guns that night before the shooting. Defendant testified that he did not tell
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the truth in the ERI because Detective Swiderek did not seem to believe his “story.” Defendant
felt that he had to keep talking to get Detective Swiderek on his side because he wanted Detective
Swiderek to know that defendant did not “do anything to anyone.” Defendant wanted to “place the
blame on who the blame was to be placed on as much as possible.” Defendant testified that he lied
about certain things in the interview with Detective Swiderek because he wanted Detective
Swiderek to believe him “as much as possible.” Defendant testified that despite what he said in
the ERI, he never intended to help anybody in the vehicle commit a shooting, and he never saw
Reese or Griffin with guns before they got out of the vehicle that night. Defendant also denied
being given a mattress and denied sleeping in the interview room.
¶ 29 In rebuttal, Detective Swiderek testified that defendant was given a mattress around 4:30
p.m. while he was in the interview room. Defendant fell asleep on the mattress and Detective
Swiderek had to wake defendant up so that he could interview him around 6:15 p.m. Counsel
played portions of the ERI video for the jury which showed the detectives providing defendant
with the mattress and showed defendant lying on the mattress.
¶ 30 Following closing argument, the jury found defendant guilty of the first degree murder of
Avant. The court subsequently sentenced defendant to 30 years’ imprisonment. Defendant now
appeals.
¶ 31 II. ANALYSIS
¶ 32 On appeal, defendant contends that the trial court erred during voir dire when it failed to
ask the prospective jurors whether they understood the constitutional principles it explained,
instead asking the jurors only whether they accepted the principles and whether they had any
“problems or qualms” with applying the principles. Defendant also contends that although his trial
counsel did file a motion to suppress his custodial statements, trial counsel was nonetheless
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ineffective because counsel should have raised a claim in the motion to suppress that his statements
should have been suppressed because the detectives engaged in an improper “question first, warn
later” style of questioning in violation of Seibert, 542 U.S. 600.
¶ 33 A. Rule 431(b)
¶ 34 Defendant first contends that his case should be remanded for a new trial because the trial
court failed to comply with Zehr and Rule 431(b) when it did not ask the prospective jurors if they
understood the constitutional principles outlined by the rule. We review the trial court's compliance
with Rule 431(b) de novo. People v. Belknap, 2014 IL 117094, ¶ 41.
¶ 35 Rule 431(b) requires the trial court to “ask each potential juror, individually or in a group,
whether that juror understands and accepts” four constitutional principles: (1) that the defendant
is presumed innocent of the charge(s) against him or her; (2) that before a defendant can be
convicted, the State must prove the defendant guilty beyond a reasonable doubt; (3) that the
defendant is not required to offer any evidence on his or her own behalf; and (4) that if a defendant
does not testify it cannot be held against him or her. Ill. S. Ct. R. 431(b) (eff. Jul. 1, 2012); see also
Zehr, 103 Ill. 2d at 477. (“essential to the qualification of jurors in a criminal case is that they know
that a defendant is presumed innocent, that he is not required to offer any evidence in his own
behalf, that he must be proved guilty beyond a reasonable doubt, and that his failure to testify in
his own behalf cannot be held against him.”). Rule 431(b) imposes “an affirmative sua sponte duty
on the trial court to ask potential jurors in each and every case whether they understand and accept
the Zehr principles” and requires the trial court to give each venireperson an opportunity to respond
whether he or she understands and accepts those principles. People v. Magallanes, 409 Ill. App.
3d 720, 729-30 (2011).
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¶ 36 In this case, defendant contends that the trial court failed to ask the prospective jurors
whether they “understood” the principles, instead asking the jurors only whether they accepted
them and whether they had any “qualms” or “problems” with applying them. Defendant concedes
that he failed to preserve this issue for review by failing to object at trial and failing to raise the
issue in a posttrial motion. See People v. Enoch, 122 Ill. 2d 176, 186 (1988). He nonetheless
contends that we may review the error under the plain error doctrine because the error was clear
and obvious and the evidence was closely balanced.
¶ 37 The plain error rule allows a reviewing court to consider unpreserved claims of error
regardless of forfeiture. Thompson, 238 Ill. 2d at 613. Plain error applies when there is a clear or
obvious error and the evidence is so closely balanced that the error would change the outcome of
the case or when there is a clear or obvious error that is so serious that it affected the fairness of
defendant’s trial. People v. Piatkowski, 225 Ill. 2d 551, 565 (2007). The first consideration in
addressing defendant’s plain error argument is determining whether an error occurred, which
requires a “substantive look” at the issue. (Internal quotation marks omitted.) People v. Hudson,
228 Ill. 2d 181, 191 (2008).
¶ 38 Here, the trial court instructed the prospective jurors on the Zehr principles one at a time.
After informing the prospective jurors of each principle, it asked the prospective jurors to raise
their hand if they did “not accept” the constitutional principle. After confirming that none of the
prospective jurors raised their hands, the court then asked the prospective jurors to raise their hand
if they had “qualms or problems about applying” each constitutional principle. The court therefore
did not ask the jurors whether they “understood” the Zehr principles. The State acknowledges that
the court did not use the “express language” from the rule, but asserts that the court’s terminology
was nonetheless sufficient to ascertain whether the prospective jurors understood the constitutional
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principles. The State maintains that a juror’s inability to understand one of the principles would
constitute a “problem.”
¶ 39 Despite the State’s assertions to the contrary, our supreme court has previously rejected a
similar argument. In People v. Sebby, 2017 IL 119445, ¶ 8, the trial court asked the prospective
jurors whether any of them “[h]ad any problems” with or “believe[d] in” the Zehr principles.
(Internal quotation marks omitted.) The supreme court found that this phrasing by the trial court
did not comply with Rule 431(b) and represented clear error. Id. ¶ 49; see also, People v.
Wilmington, 2013 IL 112938, ¶ 32 (“While it may be arguable that the court’s asking for
disagreement, and getting none, is equivalent to juror acceptance of the principles, the trial court’s
failure to ask jurors if they understood the four Rule 431(b) principles is error in and of itself.”)
(Emphasis in original); Thompson, 238 Ill. 2d at 607. As in Selby, we find the trial court’s
terminology in this case asking the prospective jurors if they had any “qualms or problems” with
the Zehr principles, rather than asking them if they understood those principles failed to satisfy
Rule 431(b).
¶ 40 Having found an error occurred, we must next consider whether reversal is warranted. As
noted, reversal may be warranted under plain error when there is a clear or obvious error and (1)
the evidence is so closely balanced that the error would change the outcome of the case, or (2) the
error is so serious that it affected the fairness of defendant’s trial. Piatkowski, 225 Ill. 2d at 565.
Defendant does not argue that the error in this case amounted to second-prong plain error. See
Sebby, 2017 IL 119445, ¶ 52 (“A Rule 431(b) violation is not cognizable under the second prong
of the plain error doctrine, absent evidence that the violation produced a biased jury.”) (citing
Wilmington, 2013 IL 112938, ¶ 33 (“[T]he second prong of plain-error review does not provide a
basis for excusing defendant's procedural default” of a Rule 431(b) violation.) He asserts, however,
- 13 - No. 1-18-0734
that the court’s error in failing to ask the prospective jurors if they understood the Zehr principles
amounted to first-prong plain error because the evidence in this case was closely balanced.
¶ 41 Whether the evidence is closely balanced is a separate question from whether the evidence
is sufficient to sustain a conviction on review against a reasonable doubt challenge. Piatkowski,
225 Ill. 2d at 566. In determining whether the evidence was closely balanced, a reviewing court
must make a “commonsense assessment” of the evidence. Belknap, 2014 IL 117094, ¶ 52. To show
that the evidence was closely balanced, a defendant must show that the error was prejudicial, i.e.,
that the error alone severely threatened to tip the scales of justice against him. People v. Adams,
2012 IL 111168, ¶ 21 (quoting Herron, 215 Ill. 2d at 187).
¶ 42 In this case, defendant was charged with first degree murder on an accountability basis.
See 720 ILCS 5/9-1 (West 2014); 720 ILCS 5/5-2 (West 2010). As such, the State was required to
show that defendant “either before or during the commission of [the first degree murder], and with
the intent to promote or facilitate that commission, [] solicit[ed], aid[ed], abet[ed], agree[d], or
attempt[ed] to aid that other person in the planning or commission of the offense.” See 720 ILCS
5/9-1 (West 2014); 720 ILCS 5/5-2(c) (West 2010).
¶ 43 Defendant argues that the evidence in this case was closely balanced because the sole issue
was whether defendant knew that anyone in the vehicle was planning to shoot someone or that
defendant knowingly abetted them. Defendant asserts that the only direct evidence suggesting that
defendant knowingly abetted the others in the vehicle in the shooting came from his ERI statement
to police. Defendant contends that his trial testimony directly contradicted the statements he made
in the ERI. He asserts that the case therefore amounted to a “credibility contest” between his
testimony at trial and his recorded interview with police.
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¶ 44 A credibility contest occurs when State and defense witnesses present two plausible
opposing accounts of the events and no extrinsic evidence corroborated or contradicted either
version so that the conviction necessarily rested upon the credibility of the witnesses. People v.
Moon, 2020 IL App (1st) 170675, ¶ 50 (citing Sebby, 2017 IL 119445, ¶¶ 61-63). However, there
is no credibility and the evidence is not closely balanced, “ ‘when one party’s version of events is
unrefuted, implausible, or corroborated by other evidence.’ ” Id. (quoting People v. Jackson, 2019
IL App (1st) 161745, ¶ 48).
¶ 45 The State asserts that the evidence in this case was not closely balanced because
defendant’s ERI testimony was “plausible” and corroborated whereas his trial testimony
implausible and inconsistent. The State contends that defendant’s ERI statements were consistent
and detailed and exhaustively described the series of events defendant relayed to Detective
Swiderek about the route he drove, the attempted traffic stop after defendant drove through the
stop sign, and the subsequent crash and arrest. However, none of these events represent a contested
issue. Indeed, defendant described the exact same set of circumstances at trial. The only question
is whether defendant knew that anyone in the vehicle had a gun and knew that Reese and Griffin
intended to shoot someone when they got out of the vehicle. There was no other evidence, aside
from defendant’s own statements, to show whether defendant was aware that Reese and Griffin
intended to murder Avant. Neither account defendant gave was “unrefuted, implausible, or
corroborated by other evidence.” Thus, defendant’s conviction rested entirely on whether the
jurors believed defendant’s statements in his ERI or whether they believed his testimony at trial.
As such, we find that the evidence in this case was closely balanced.
¶ 46 We also observe that defendant’s statements during the ERI were anything but consistent.
He first denied knowing anything about the shooting, telling Detective Swiderek that he only heard
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gunshots and then drove away. Even after he acknowledged that he knew the shooting occurred,
his description of the events and his relationship to the participants changed drastically throughout
the interrogation. For instance, defendant initially denied seeing either Reese or Griffin with guns,
then told Detective Swiderek that he saw both of them produce guns from underneath their hooded
sweatshirts. He eventually told Detective Swiderek that Griffin directed defendant to a building
where Griffin retrieved a gun and defendant saw Kenyon hand Reese a gun just before the
shooting. After hours of interrogation, defendant eventually told Detective Swiderek that he knew
there were guns in the vehicle and he knew that Reese and Griffin intended to shoot someone when
they exited the vehicle. He recanted that statement, however, at trial, testifying that he lied to
Detective Swiderek because he wanted Detective Swiderek to believe him “as much as possible.”
¶ 47 The State also asserts that defendant’s ERI statements were adequately corroborated. The
State points out that defendant’s description of the alcohol they purchased at the liquor store was
corroborated when the evidence technicians discovered those same alcohol bottles in the vehicle.
The State contends that defendant’s statements about where the shooting took place and who the
shooters were was also corroborated by Martin’s testimony. Again, however, none of this
corroboration goes to the central question of whether defendant knew Reese and Griffin had guns
and whether he knew they intended to shoot someone when they got out of the vehicle. Defendant
acknowledged in his trial testimony the location where Griffin and Reese got out of the vehicle,
hearing gunshots, and the high speed chase that followed.
¶ 48 Thus, because the evidence was closely balanced, the court’s instructional error in failing
to ask the prospective jurors if they understood the Zehr principles was prejudicial. Sebby, 2017
IL 119445, ¶¶ 68-69. As such, we find that remand for a new trial is warranted where there was a
clear Rule 431(b) violation and the trial evidence was close. Id. ¶ 78.
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¶ 49 B. Question-First, Warn-Later
¶ 50 Although we find that remand is warranted, we will nonetheless address defendant’s
contention that his trial counsel provided ineffective assistance because we find that this issue
would likely recur on remand. See Pielet v. Pielet, 2012 IL 112064, ¶ 56. Specifically, defendant
contends that his trial counsel provided ineffective assistance in failing to file a motion to suppress
his custodial statement on the basis that the police used an improper question-first, warn-later tactic
in violation of Seibert, 542 U.S. 600 and our supreme court’s ruling in People v. Lopez, 229 Ill. 2d
322 (2008). Defendant asserts that certain statements he made during the ERI demonstrated that
he made unrecorded and unwarned statements to Detective Swiderek before the recorded
interview. Defendant asserts that trial counsel should have filed a motion to suppress his statements
based on this improper questioning technique, but counsel failed to do so.
¶ 51 In order to better understand the Supreme Court’s ruling in Seibert, and our supreme court’s
ruling in Lopez, it is first necessary to examine the Supreme Court’s ruling in Oregon v. Elstad,
470 U.S. 298 (1985). In Elstad, police officers arrived at the defendant’s house with a warrant for
his arrest. Id. at 300. One of the officers stayed with the defendant while the other officer spoke to
defendant’s mother in a separate room about the arrest. Id. at 300-01. The officer who stayed with
the defendant testified that he asked defendant if he knew why the officers were there. Id. at 301.
The defendant stated that he did not, and then the officer asked the defendant if he knew “a person
by the name of Gross,” who was the victim of the robbery the police were investigating. Id. The
defendant responded that he did know Gross and added that heard there had been a robbery at the
Gross house. Id. The officer told the defendant that he “felt” that the defendant was involved in
the robbery. Id. The defendant acknowledged that he was at the robbery. Id. The officers then
escorted the defendant to their patrol vehicle. Id.
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¶ 52 The defendant was taken to the police station where he was for the first time given his
Miranda warnings. Id. The defendant indicated that he understood his rights, waived them, and
gave a written statement to police about the robbery. Id. at 301-02. At the defendant’s trial, the
prewarning statement the defendant made to the arresting officer was suppressed. Id. at 302.
However, the defendant’s postwarning, written confession was admitted into evidence. Id.
¶ 53 On appeal to the Supreme Court, the Court considered whether the suppression of the
postwarning statement was warranted. Id. at 303. The court agreed that the first unwarned
statement should have been suppressed, but found that the admissibility of the subsequent
statement “should turn in these circumstances solely on whether it is knowingly and voluntarily
made.” Id. at 309. The court reasoned that “[t]here is a vast difference between the direct
consequences flowing from coercion of a confession by physical violence or other deliberate
means calculated to break the suspect’s will and the uncertain consequences of disclosure of a
‘guilty secret’ freely given in response to an unwarned but noncoercive question, as in this case.”
Id. at 312. The court concluded:
“[A]bsent deliberately coercive or improper tactics in obtaining the initial
statement, the mere fact that a suspect has made an unwarned admission does not warrant
a presumption of compulsion. A subsequent administration of Miranda warnings to a
suspect who has given a voluntary but unwarned statement ordinarily should suffice to
remove the conditions that precluded admission of the earlier statement. In such
circumstances, the finder of fact may reasonably conclude that the suspect made a rational
and intelligent choice whether to waive or invoke his rights.” Id. at. 314.
¶ 54 The Supreme Court revisited Elstad in Seibert. In Seibert, the police arrested the defendant
and took her to an interrogation room at the police station. Seibert, 542 U.S. at 604. The police
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then questioned her for “30 to 40 minutes” and squeezed her arm while attempting to coerce her
to make incriminating statements. Id. at 604-05. After the defendant made an incriminating
statement, the officer gave her a 20-minute break. Id. at 605. After the break, the officer returned,
turned on a tape recorder, and gave the defendant her Miranda warnings, which she waived. Id.
The officer then confronted her with her prewarning statements, asking her to confirm everything
she had already told the officers. Id.
¶ 55 At her trial, the defendant sought to suppress her statements. Id. 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 warnings, and then repeat the
question ‘until I get the answer that she’s already provided once.’ ” Id. at 605-06. The trial court
suppressed the prewarning statements, but admitted the responses given after the Miranda
warnings. Id. at 606.
¶ 56 In a plurality opinion, the Supreme Court distinguished Elstad finding that the prewarning
statement elicited by the police in that case was obtained “in arguably innocent neglect of
Miranda.” Id. at 614-15. The Court found that conversation between the defendant and the
arresting officer in Elstad was a “good-faith Miranda mistake,” which was “open to correction by
careful warnings before systematic questioning.” Id. at 615. The Court observed that the contrast
between the facts in Elstad and in Seibert revealed a series of factors for a court to consider in
determining whether warnings delivered after questioning could be effective enough to protect the
defendant’s rights:
“The completeness and detail of the questions and answers in the first round of
interrogation, the overlapping content of the two statements, the timing and setting of the
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first and the second, the continuity of police personnel, and the degree to which the
interrogator's questions treated the second round as continuous with the first.” Id.
¶ 57 The plurality found that the facts here demonstrated a police strategy designed to
undermine Miranda warnings. Id. at 616. “The unwarned interrogation was conducted in the
station house, and the questioning was systematic, exhaustive, and managed with psychological
skill. When the police were finished there was little, if anything, of incriminating potential left
unsaid.” Id. The plurality concluded that because the question-first, warn-later tactic threatened to
thwart Miranda’s purpose, the defendant’s postwarning statements were inadmissible. Id. at 617.
¶ 58 Justice Kennedy wrote a concurrence agreeing with plurality’s conclusion, but applying a
somewhat narrower test. Id. at 618-22 (Kennedy, J. concurring). In Lopez, our supreme court found
that Justice Kennedy’s concurring opinion in Seibert resolved the case on the narrowest ground
and therefore was the controlling authority. Lopez, 229 Ill. 2d at 360. In his concurring opinion,
Justice Kennedy recognized that not every violation of Miranda requires suppression of the
evidence obtained. Seibert, 542 U.S. at 618. “Evidence is admissible when the central concerns of
Miranda are not likely to be implicated ***.” Id. at 618-19. Justice Kennedy also discussed Elstad
finding that it was “correct in its reasoning and its result,” but, as the plurality, found that Seibert
presented “different considerations.” Id. at 620. Justice Kennedy found that the two-step
questioning technique the officer employed was based on a deliberate violation of Miranda. Id.
The officer then relied on the defendant’s prewarning statements to obtain the postwarning
statement used against her at trial. Id. at 621. Justice Kennedy noted that the postwarning interview
resembled a “cross-examination” where the officer confronted the defendant with her inadmissible
prewarning statements and pushed her to acknowledge them. Id.
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¶ 59 Justice Kennedy found, however, that the test employed by the plurality was “too broad[]”
because it envisioned an objective inquiry from the perspective of the suspect and applied in cases
of both intentional and unintentional two-step interrogations. Id. at 621-22. Justice Kennedy stated
that the admissibility of postwarning statements should continue to be governed by the principles
of Elstad unless the police deliberately employed a two-step strategy. Id. at 622. If officers
deliberately employ a two-step strategy, then the admissibility of the postwarning statements that
are related in substance to prewarning statements depends on whether the officers take curative
measures before the postwarning statement is made. Id. “Curative measures should be designed to
ensure that a reasonable person in the suspect’s situation would understand the import and effect
of the Miranda warning and of the Miranda waiver.” Id. As an example, Justice Kennedy noted
that a “substantial break in time” would suffice to distinguish the two contexts of the interrogation.
¶ 60 Our supreme court first had an opportunity to examine Seibert in Lopez, 229 Ill. 2d 322. In
Lopez, police responded to a burglary and found a dead body on the floor of an apartment. Id. at
324. The defendant gave both an oral and a written statement confessing to his part in the crime.
Id. at 325. Prior to trial, the defendant filed motions to quash his arrest and suppress his oral and
written statements. Id. At the hearing on his motion, the evidence showed that while investigating
the victim’s murder, the officers learned of defendant’s name. Id. The officers went to defendant’s
apartment and took him into custody. Id. The officers did not tell defendant that they were
investigating a homicide, but told him that wanted to ask him questions about gangs. Id. at 325-
26.
¶ 61 At the police station, the defendant was placed in an interrogation room where the officers
questioned him about the murder. Id. at 326. The defendant was questioned for 15 to 20 minutes
without being given his Miranda warnings. Id. at 332. Nearly five hours later, detectives again
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interviewed the defendant at the police station, but still did not inform him of his Miranda rights.
Id. at 333. In the intervening hours, defendant’s co-offender had given a statement to police
implicating both himself and the defendant in the crime. Id. Confronted with this information, the
defendant made an oral statement implicating himself in the crime. Id. 334. After the defendant
gave the inculpatory statement, the officers gave defendant his Miranda warnings for the first time
and then terminated the interview. Id. The defendant later gave a handwritten statement of his
involvement in the murder. Id. at 341. The trial court granted the defendant’s motion to suppress
with regard to the oral statement he made before he was given his Miranda warnings, but found
that his handwritten statement was voluntarily given and sufficiently attenuated from the oral
statement. Id. at 341-42.
¶ 62 On appeal, this court rejected the defendant’s assertion that the police violated his fifth
amendment rights when they engaged in an unlawful question first, warn later interrogation
technique. Id. at 344. This court reasoned that there was no evidence that the detectives
intentionally withheld Miranda warnings in order to secure a confession from the defendant. Id.
¶ 63 Before the supreme court, the defendant likewise asserted that his handwritten confession
was involuntary and should have been suppressed under Seibert. Id. at 355. After reviewing the
Supreme Court’s rulings in Elstad and Seibert, the Lopez court found that the threshold question
was whether the detectives deliberately engaged in a question first, warn later technique when
interrogating the defendant. Id. at 360. If the court found deliberateness, it would then have to
examine whether curative measures were taken. Id. at 360-61. The court recognized that officers
will rarely admit on the record that they deliberately withheld Miranda warnings in order to obtain
a confession and therefore looked to the Ninth Circuit’s opinion in United States v. Williams, 435
F.3d 1148 (2006) for guidance. Id. at 361. In Williams, the Ninth Circuit stated that, “in
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determining whether the interrogator deliberately withheld the Miranda warning, courts should
consider whether objective evidence and any available subjective evidence such as an officer’s
testimony, support an inference that the two-step interrogation procedure was used to undermine
the Miranda warning.” Williams, 435 F.3d at 1158. In assessing objectivity, the Williams court
identified the same factors as those identified by the Supreme Court in Seibert, “the timing, setting
and completeness of the prewarning interrogation, the continuity of police personnel and the
overlapping content of the pre- and postwarning statements.” Id. at 1159.
¶ 64 In examining the subjective and objective factors, the Lopez court noted that the
defendant’s co-offender was taken into custody after giving a statement implicating both himself
and defendant in the crime. Lopez, 229 Ill. 2d at 363. The court found that the co-offender’s
statement was sufficient to elevate his status from that of witness to suspect and thus, after the
statement, the defendant must have also been a suspect. Id. The court noted that the detective
testified that the defendant was not a suspect at that point, but the court found the detective’s
testimony contradictory. Id. The court noted that although the detective testified that the defendant
was not a suspect after the police obtained the inculpatory statement from the co-offender, the
detective also testified that the defendant was nevertheless not free to leave the police station at
that point. Id. The court found that “[i]n light of these facts, we can think of no legitimate reason
why the detectives failed to give defendant his Miranda warnings [after obtaining the co-offender’s
confession], other than a deliberate decision to circumvent Miranda in hopes of obtaining a
confession, which would ultimately lead to a handwritten statement.” Id. at 363-64. The court
observed that this was not a case where the officers mistakenly withheld Miranda warnings
because the detectives were clearly interrogating the defendant as they confronted him with his
co-offender’s statement and asked him if he was involved in the crime. Id. at 364. Accordingly,
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the court found that the record showed that the detectives deliberately withheld Miranda warnings
from the defendant and that his postwarning statement should have been suppressed. Id. at 364.
¶ 65 That precedent in mind, we now turn to defendant’s contentions under Seibert. Defendant
asserts that his use of “like I told you” at the beginning of the ERI with Detective Swiderek
suggests some sort of unrecorded and unwarned questioning must have taken place. Defendant
points out that when the video recording begins, defendant is sitting on a bench in the interview
room. Detective Swiderek then comes into the room, unchains defendant from the bench, and then
walks him out of the room. Defendant and Detective Swiderek then reenter the room a short time
later, and Detective Swiderek tells defendant to sit down and wait. Detective Swiderek then leaves
the room, returns less than a minute later with a chair, and advises defendant of his Miranda rights.
Detective Swiderek then asks defendant “what’s going on tonight?” Defendant replies: “Well,
when you first came in and talked to me like I told you Ken is my big cousin.” Defendant’s use of
the phrase “like I told you” is the basis for his contention that Detective Swiderek improperly
elicited a prior unwarned statement from him. Defendant identifies two other instances during the
ERI where he refers to this prior interrogation. Shortly after this first statement, defendant told
Detective Swiderek: “like I told you, I just came home but I know people from the area,” and soon
after defendant said: “Like I told you I just did six and a half years.” Defendant asserts that the
prewarning interrogation where Detective Swiderek elicited this information must have occurred
during the period defendant was removed from the interrogation room.
¶ 66 Based on defendant’s contentions and the statements he made during the ERI, this
questioning apparently concerned the fact that “Ken,” referring to Kenyon, was his cousin, and
that defendant had just recently been released from prison. Even assuming such prewarning
questioning occurred, we cannot say that the circumstances described by defendant indicate a
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specific strategy designed to undermine Miranda warnings such that trial counsel should have filed
a motion to suppress his statements on that basis. See Seibert, 542 U.S. at 615. Quite simply, the
series of events defendant asserts occurred in this case does not resemble the clearly improper
police tactics employed in Seibert and Lopez, but more closely mirrors the innocent prewarning
conversation that took place in Elstad.
¶ 67 First, in Seibert, the detectives physically coerced the defendant before reading her
Miranda rights in order to extract incriminating information from her. Seibert, 542 U.S. at 604-05.
The detective at the defendant’s suppression hearing acknowledged that he intentionally withheld
Miranda rights in order to get the answers he wanted postwarning. Id. at 605-06. Seibert thus
represents an extreme and obviously improper example. Notably, in this case, defendant offered
no suggestion of what questions Detective Swiderek might have asked him at this off-camera
prewarning “interrogation,” and there is no suggestion that defendant even informed his counsel
that such an interrogation took place. Indeed, defendant testified at length at trial regarding the
interrogation with Detective Swiderek and did not mention any prewarning questioning. Instead,
defendant seems to suggest that the existence of the prewarning interrogation is apparent merely
from his responses to Detective Swiderek’s questions, namely his use of the phrase “like I told
you.”
¶ 68 We observe that at the very beginning of the interrogation, after Detective Swiderek
informed defendant of his Miranda rights, and immediately after defendant told Detective
Swiderek that Kenyon was his cousin, defendant then says, “I just came home September
eighteenth.” Later, defendant tells Detective Swiderek “like I told you I just came home” and
“[l]ike I told you I just did six and a half years.” Thus, defendant’s use of “like I told you” in this
context in reference to his recent release from prison may have been referencing his previous
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statement from the beginning of the interrogation that defendant just “came home” on September
18 and may not have been a reference to an unrecorded prewarning statement as defendant
suggests.
¶ 69 Nonetheless, even taking defendant’s assertions on appeal that some sort of improper
prewarning interrogation must have occurred as true, we cannot say that suppression would be
warranted in this case. As the Supreme Court noted in Seibert, not every violation of Miranda
requires suppression of the evidence obtained. Seibert, 542 U.S. at 618. In this case, there is no
suggestion of a concerted effort by Detective Swiderek to elicit a prewarning confession as in
Lopez. Lopez, 229 Ill. 2d at 363-64. And there was simply not the deliberateness that was employed
in both Lopez and Seibert. As there was no deliberateness, it was not necessary for the officers to
take curative measures. Seibert, 542 U.S. at 622 (Kennedy, J., concurring); see also Lopez, 229 Ill.
2d at 359.
¶ 70 Moreover, the postwarning interview did not resemble a “cross-examination” where the
detectives confronted defendant with his prewarning statements and pushed him to acknowledge
them. Id. at 621 (Kennedy, J., concurring). Instead, Detective Swiderek began the interview with
an open-ended question: “You want to tell me what’s going on tonight?” Detective Swiderek did
not even attempt to elicit any of the information that defendant allegedly said in the prewarning
interview. Detective Swiderek did not ask defendant about his relationship with Kenyon, or
mention Kenyon at all, and did not ask defendant about any prior incarcerations. Instead, defendant
offered that information on his own accord. Thus, we find that the circumstances in Seibert and
Lopez are distinguishable from the case at bar.
¶ 71 Instead, we believe that Elstad is the proper guide here. As Justice Kennedy noted in
Seibert, Elstad was “correct in its reasoning and its result.” Id. Like in Elstad, Detective Swiderek
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did not employ “physical violence or other deliberate means calculated to break” defendant’s will.
Elstad, 470 U.S. at 312. The mere fact that defendant made an unwarned statement does not
warrant a presumption of compulsion and does not invalidate subsequent administration of
Miranda warnings followed by a knowing and voluntarily waiver of those rights. Id. at 314. The
Seibert plurality described the circumstances in Elstad as a “good-faith Miranda mistake” that was
“open to correction by careful warnings before systematic questioning” and posed “no threat to
warn-first practice generally.” Seibert, 542 U.S. at 615. We find the same result is warranted in
this case.
¶ 72 Furthermore, it is not even clear that the information Detective Swiderek allegedly elicited
in the prewarning interrogation was even incriminating. Defendant asserts that the information was
incriminating because Kenyon had just been arrested for murder and the fact that defendant was
his cousin linked them together. However, defendant and Kenyon were arrested at the same time,
fleeing from the same vehicle, shortly after the shooting, and were being interrogated during the
same period by the same detective regarding the same incident. The fact that Kenyon was
defendant’s cousin had little bearing, if any, on whether the two were involved in the same criminal
activity. Furthermore, the fact that defendant had recently been released from prison was irrelevant
to the subject of the interrogation.
¶ 73 Accordingly, it is clear that a motion to suppress on the basis that the detectives violated
Miranda by employing an improper question first, warn later tactic would have been meritless.
Even taking defendant’s contentions that a prewarning interrogation occurred as true, the hallmark
factors of a deliberate attempt to circumvent Miranda identified by the Supreme Court in Seibert
and our supreme court in Lopez were simply not present in this case. As such, we find that trial
counsel was not ineffective for failing to raise the issue in a motion to suppress.
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¶ 74 III. CONCLUSION
¶ 75 For the reasons stated, we reverse the judgment of the circuit court of Cook County and
remand for further proceedings.
¶ 76 Reversed and remanded.
¶ 77 Ellis, J., specially concurring.
¶ 78 I concur in the well-reasoned judgment of reversal based on the Rule 431(b) violation.
But I respectfully submit that we should not reach the question of whether the failure to file a
motion to suppress constituted ineffective assistance of counsel. It is not only unnecessary to do
so; it is prejudicial to defendant.
¶ 79 We often reach issues unnecessary to the disposition of an appeal because they are likely
to recur on remand. Evidentiary issues, for example, that almost inevitably will crop up again at
a retrial. But it is not inevitable that this Strickland issue will recur. To be sure, the decision
whether to move to suppress will arise again. But for all we know, defense counsel, on remand,
will move to suppress based on a Seibert violation, as defendant argues here they should have.
¶ 80 By reaching this issue unnecessarily, we are sending two messages we should not be
sending. First, we are telling the defense attorneys that, should they choose not to move for
suppression, that decision will not be ineffective assistance. We are needlessly weighing in on
counsel’s strategic decision after consultation with their client. And second, we have told both
defense counsel and the trial judge that, even if defense counsel does move for suppression, that
motion will be a loser.
¶ 81 And because a new trial is forthcoming, we are doing as an appellate court what our
supreme court has held the circuit court cannot do—decide a Strickland claim prior to trial. See
People v. Jocko, 239 Ill. 2d 87, 93 (2010) (“the fundamental problem with addressing Strickland
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claims prior to trial is that the outcome of the proceeding has not yet been determined. Because
there is no way to determine if counsel’s errors have affected an outcome that has not yet
occurred, the circuit court cannot engage in this analysis prior to trial. Accordingly, we reject the
appellate court’s conclusion that a circuit court is obligated to address a pro se defendant’s
Strickland claims prior to trial.”).
¶ 82 The majority does a perfectly fine job of providing its best estimation of the validity of
that suppression motion, but it is just that—an estimate on direct appeal, without the benefit of a
transcript with sworn testimony and argument from a suppression hearing specifically focused on
Seibert. It may well be that the majority’s analysis proves to be entirely correct. But the fact
remains that, if defendant did move to suppress at retrial and provided evidence to the court in
the form of sworn testimony, nobody can say for certain what will come of it. Perhaps some
information that has not yet come to light will come out at a suppression hearing specifically
focused on the Seibert issue, and it might make a material difference. There is a possibility that
defendant may persuade the judge, after hearing all evidence and testimony and argument, that
suppression is warranted.
¶ 83 The majority decision inadvertently places a heavy thumb on the scale before that
happens, if it happens. It unintentionally steers the defense attorneys toward a decision not to file
a suppression motion by giving them cover in advance. And it gives our best estimate of the
merits of the Seibert claim before defendant has had a chance to tailor an argument and call
witnesses at a hearing directly focused on that issue.
¶ 84 I otherwise concur in the well-reasoned judgment of reversal based on the Zehr violation
and would leave it at that.
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