People v. Parks

2025 IL App (4th) 230597, 257 N.E.3d 739

• Court: Appellate Court of Illinois
• Decided: February 24, 2025
• Docket: 4-23-0597
• Status: Published

Opinion

2025 IL App (4th) 230597 FILED February 24, 2025 NO. 4-23-0597 Carla Bender 4th District Appellate IN THE APPELLATE COURT Court, IL

OF ILLINOIS

FOURTH DISTRICT

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the Plaintiff-Appellee, ) Circuit Court of v. ) Winnebago County NICKLES T. PARKS, ) No. 19CF211 Defendant-Appellant. ) ) Honorable ) Ronald J. White, ) Judge Presiding.

JUSTICE GRISCHOW delivered the judgment of the court, with opinion. Justices Lannerd and DeArmond concurred in the judgment and opinion.

OPINION

¶1 In January 2019, the State charged defendant, Nickles T. Parks, with first degree

murder (720 ILCS 5/9-1(a)(1) (West 2018)), armed robbery (id. § 18-2(a)(4)), and concealment of

a homicidal death (id. § 9-3.4(a)) in connection with the fatal shooting of Jaime Stephens in

December 2018. In March 2022, a jury trial was conducted, at which the State proceeded under a

theory of accountability. The jury found defendant guilty of first degree murder and concealment

of a homicidal death. The trial court sentenced defendant to a total of 60 years’ imprisonment.

¶2 Defendant appeals, arguing (1) the trial court erred in denying his motion to

suppress statements made during a recorded police interview wherein he received ineffective

assistance from his attorney, rendering his statements involuntary, due to the eliciting of highly

incriminating statements in violation of the attorney-client privilege and in the absence of a cooperation agreement with the State (and while operating under a per se conflict of interest);

(2) his trial counsel provided ineffective assistance through only basing this motion to suppress on

the conflict of interest and not on the initial attorney’s conduct during the interview that rendered

defendant’s statements involuntary; (3) the court erred in denying his motion to suppress evidence

of statements he made during an earlier, unrecorded police interview; (4) his trial counsel provided

ineffective assistance through failing to raise and argue the affirmative defense of self-defense;

and (5) the cumulative effect of these errors deprived him of a fair trial. For the reasons that follow,

we conclude the first and second issues are dispositive of this appeal and reverse and remand for

a new trial on these bases.

¶3 I. BACKGROUND

¶4 A. Initial Investigation and Defendant’s Charges

¶5 On December 7, 2018, Stephens was shot 10 times and killed inside defendant’s

Chrysler 300 automobile outside a Walgreens in Rockford, Illinois. Defendant was driving, his

friend Joshua Whittie was in the front passenger seat, and Stephens was in the back seat behind

defendant. On December 10, 2018, police discovered Stephens’s body in a ditch in rural

Winnebago County. During their ensuing investigation, police learned Stephens was last seen on

December 7 exiting Walgreens and entering the back seat of defendant’s car.

¶6 Defendant worked for a trucking company headquartered in Rockford. On January

6, 2019, after he returned to Rockford from an out-of-state driving assignment, detectives from the

Winnebago County Sheriff’s Office met defendant and asked him to accompany them to the police

station to discuss an ongoing criminal investigation. Defendant agreed and, later that day,

participated in an unrecorded interview with detectives. On January 23, 2019, the State filed a

complaint charging defendant with first degree murder (id. § 9-1(a)(1)), armed robbery (id. § 18-

-2- 2(a)(4)), and concealment of a homicidal death (id. § 9-3.4(a)). Thereafter, defendant was arrested

and taken to the police station for additional questioning. This interview was recorded and

conducted in the presence of defendant’s attorney, Elder Granger.

¶7 B. Granger’s Disqualification as Defense Counsel

¶8 On April 2, 2019, the State filed a motion to disqualify Granger from representing

defendant, contending Granger had both a per se and actual conflict of interest in concurrently

representing defendant and Javar Davis-Puckett, a prosecution witness. (During their investigation

in January 2019, police found defendant’s car stored in Davis-Puckett’s grandmother’s garage.)

Since Granger would have to cross-examine Davis-Puckett regarding how defendant described the

shooting and his subsequent storage of defendant’s car, the State argued Granger’s representation

of both defendant and Davis-Puckett created a conflict of interest and the only remedy would be

to disqualify Granger from representing defendant. Finding Granger’s concurrent representation

of defendant and Davis-Puckett created a conflict of interest, the trial court granted the motion.

Attorney Glenn Jazwiec entered his appearance for defendant on May 16, 2019.

¶9 C. Defendant’s Motion to Suppress

¶ 10 On March 3, 2021, Jazwiec filed a motion to suppress statements defendant gave

during his interview with police on January 23, 2019, while accompanied by Granger. Jazwiec

argued defendant did not knowingly and intelligently waive his right to remain silent and his right

against self-incrimination because his attorney at the time (Granger) had a conflict and was

subsequently disqualified from representing him. The trial court conducted a hearing on this

motion on April 23, July 8, September 9, and September 27, 2021.

¶ 11 1. Granger’s Testimony

¶ 12 Granger began representing defendant on January 16, 2019, when defendant came

-3- to his office to discuss being investigated for his alleged role in a murder. Defendant did not tell

Granger the victim’s name. Granger agreed to represent defendant if he was questioned or charged

in connection with the murder. A day or two after this meeting, Granger communicated with Davis-

Puckett but did not take any steps to determine who the victim of the murder was.

¶ 13 On January 22, 2019, Granger accompanied Davis-Puckett to turn himself in on an

outstanding warrant unrelated to Stephens’s murder. Detectives from the Winnebago County

Sheriff’s Office “showed up” and asked to speak with Davis-Puckett regarding a murder

investigation. During this interview, Davis-Puckett was asked how he ended up in possession of

defendant’s car. Davis-Puckett said defendant wanted to sell his car because he was moving to

Florida. A potential arrangement was made where all Davis-Puckett “had to do was take over

payments and fix the sunroof.” However, they never discussed the payment amounts or how

payments would be made. Davis-Puckett stated defendant drove the car to his grandmother’s house

and backed it into the garage but took the keys. Davis-Puckett did not inspect or test drive the car.

Granger stated he terminated the interview because Davis-Puckett was confronted with how his

story did not make any sense and because Granger realized there could be a connection between

Davis-Puckett and the information defendant provided during their initial meeting.

¶ 14 Granger worked with defendant and detectives to schedule an interview the

following day (January 23, 2019), to allow defendant to “give his statement as to this investigation

to, basically, attempt to clear [himself] of any involvement [in] this murder.” Granger also

communicated with Winnebago County Deputy State’s Attorney Mike Rock regarding this.

Granger explained to defendant the State was not entering into cooperation agreements unless the

information provided was determined to be “good.” If this occurred, the state’s attorney would

further discuss a cooperation agreement. Granger did not specifically discuss a potential “proffer

-4- letter” with defendant but did explain, “[T]hey’re not giving you a cooperation agreement at this

time. They’re not giving you—they’re not giving you anything by sitting down with them.”

¶ 15 When Granger arrived at the police station, detectives informed him defendant was

being charged with murder. Defendant then began making statements to the detectives. Eventually,

Granger instructed defendant not to make any more statements and terminated the interview

because “they were trying to pin the murder on him.” Granger realized “this entire matter” involved

Davis-Puckett. In particular, Granger realized “[r]ight before [he] shut down the interview that the

vehicle that the murder took place in could be the same vehicle that was sold to [Davis-Puckett].”

¶ 16 2. Rock’s Testimony

¶ 17 Rock was a deputy state’s attorney in Winnebago County during the prosecution of

defendant. Granger spoke with Rock about arranging a cooperation agreement with defendant.

However, Marilyn Hite-Ross was the state’s attorney, and she solely made decisions regarding

cooperation agreements. Rock explained the first step in arranging a cooperation agreement was

“essentially you spill your guts” and the State would then decide what, if anything, it would be

willing to do. Rock was surprised Granger was asking about cooperation agreements, as it was

known the office did not give them when a defendant was about to speak.

¶ 18 3. Defendant’s January 23, 2019, Police Interview

¶ 19 The video of defendant’s January 23, 2019, police interview was played during the

suppression hearing and reviewed by this court.

¶ 20 Detective Steve Roberson read defendant his Miranda rights and asked if he

understood them. See Miranda v. Arizona, 384 U.S. 436 (1966). Defendant asked to smoke and to

contact his attorney. Defendant said he would sign the Miranda waiver form after having the

chance to smoke. Once Granger arrived, Detective Roberson told defendant he wanted to discuss

-5- his interaction with Stephens on the day of his murder. Detective Roberson told defendant to be

honest and, in Granger’s presence, read defendant his Miranda rights again and had defendant sign

the waiver form.

¶ 21 The interrogation began, and Granger told defendant to “start with what was

inaccurate that you told the deputy the first time.” Defendant admitted his statement about his car

being in California on January 6, 2019, was inaccurate. Defendant explained he said this at the

time because he “was scared.” Granger told defendant, “Let’s get into it. Exactly what you told

me what happened. All of it. Let’s get it out. I’ve already talked to the state’s attorney’s office.

The only way you can help yourself is by proffering everything you know right now.”

¶ 22 Defendant said he contacted Stephens about some missing jewelry that belonged to

his friend, Amber Brewer, but did not threaten him. Defendant said he drove with Whittie to

Walgreens, where they met Stephens. Whittie was in the front passenger seat, and Stephens got in

the back seat behind defendant. Defendant said Whittie came along for “safety reasons” because

he thought it was better to have someone there “in case of a strong-arm situation.” Defendant told

Stephens he did not want any trouble and only wanted him to return the jewelry. Defendant turned

around to talk to Stephens about who took the jewelry. Defendant then began driving, and

suddenly, “there was gunfire, and [Stephens] was in the front, and that’s all I know.” Defendant

said:

“Where the gunfire came from, I don’t know. Right before we were

gonna turn, I hear some shuffling. I think I was a target in that

situation. I ducked down. And then whatever happened after that

was kinda like, if you experience something like that, you shut

down. You shut the f*** down.”

-6- ¶ 23 Defendant thought Stephens had a gun and said he “tried to shoot me first” and then

said he thought Stephens was trying to shoot Whittie. Defendant said Stephens and Whittie were

fighting for the gun and he heard shuffling, one shot, and then several subsequent shots. Defendant

inferred Stephens had the gun and Whittie tried to grab it because Whittie was shot twice in the

arm. Defendant said he did not remember much after that and explained, “All I know is I didn’t do

anything. It wasn’t intentional. It wasn’t premeditated. I didn’t want anybody to get hurt. I’m not

that kind of person.” Defendant claimed Whittie moved to the back seat during this incident and

was able to do so because “he is smaller than I am. It’s almost like he jumped up. He just jumped

in the back.” Defendant explained Stephens ended up slumped over in the front seat. Defendant

then drove off wondering “what do we do.”

¶ 24 Defendant then said to Granger, “I didn’t do anything.” Granger responded:

“I understand that you did not do anything, but, technically, under

the law, is that a criminal offense? Yes. But like I said before, you’re

gonna get charged with murder. You’re charged with murder. It

can’t get any worse. We’re trying to make things better right now.

Tell them where you drove.”

¶ 25 Defendant said he “panicked” and wanted to “get as far away as possible.” Granger

interjected, telling defendant he previously told him he was “just driving and driving and driving.”

Defendant later dropped Whittie off near Rockford Memorial Hospital and went to work.

Eventually, defendant took his car to Brewer’s garage (not Davis-Puckett’s grandmother’s) and

left the gun in the back seat. Defendant said, “I don’t know if it got thrown—” Granger interjected,

“You said the gun was not there when you went to work.” Detective David Witt tried to learn what

happened to the gun through further questioning but was not successful.

-7- ¶ 26 4. The Trial Court’s Ruling on the Motion to Suppress

¶ 27 On September 27, 2021, the trial court denied the motion to suppress the recorded

interview. The court agreed Granger had a per se conflict of interest but did not find it would

require exclusion of the recorded interview. The court found Miranda warnings had been provided

twice and defendant knowingly and intelligently waived his right to remain silent.

¶ 28 D. Jury Trial

¶ 29 1. The State’s New Information

¶ 30 The jury trial began on March 22, 2022. Before jury selection commenced, the State

filed a new information, charging defendant with two counts of first degree murder (720 ILCS 5/9-

1(a)(2) (West 2018)) and one count of concealment of a homicidal death (id. § 9-3.4(a)). The first

count of first degree murder alleged defendant shot a firearm, thus proximately causing Stephens’s

death. The second count alleged defendant shot a firearm, knowing the act created a strong

probability of death or great bodily harm to Stephens. The State proceeded on an accountability

theory. Jazwiec admitted they had been aware of the accountability theory “since day one.”

¶ 31 Over objection, the video of defendant’s January 23, 2019, interview with police,

while accompanied by Granger, was played for the jury. Since we have already summarized this

video, we will not do so again here. However, we will discuss this interview in connection with

defendant’s claims of receiving ineffective assistance from both Granger and Jazwiec.

¶ 32 2. The State’s Case

¶ 33 a. The Discovery of Stephens’s Body

¶ 34 i. Deputy Cesar Chavez’s Testimony

¶ 35 Winnebago County Sheriff’s Deputy Cesar Chavez testified he was on duty on

December 10, 2018, and responded to a call about a body that had been found in a ditch. Upon

-8- arrival, Deputy Chavez observed a deceased white male lying face up in the ditch, with two wounds

on the right side of his body. Deputy Chavez was shown a photograph of an individual who he

confirmed was later identified as Stephens.

¶ 36 ii. Dr. Mark Peters’s Testimony

¶ 37 Dr. Mark Peters is the forensic pathologist who performed the autopsy on

Stephens’s body on December 12, 2018. Dr. Peters discovered 10 gunshot wounds to Stephens’s

body. Dr. Peters identified the wounds with letters and testified regarding the bullets’ points of

entry into, and trajectory through, Stephens’s body. Dr. Peters concluded, “[Stephens] *** died of

multiple gunshot wounds.”

¶ 38 iii. Stipulation Regarding Gunshot Residue Found on Stephens’s Left Hand

¶ 39 Counsel stipulated that, if called to testify, Mary Wong from the Illinois State Police

Crime Laboratory would testify she processed a gunshot residue kit taken from Stephens’s body

and detected the presence of gunshot residue on his left hand. This residue indicated Stephens

“may have discharged a firearm, contacted a primer [gunshot residue] related item, or had his left

hand in the environment of a discharged firearm.”

¶ 40 b. Events Leading to the Murder of Stephens

¶ 41 i. Brewer’s Testimony

¶ 42 Brewer testified she grew up with defendant and had been close friends with him

for almost 20 years. In November 2018, Brewer lost a wedding ring and necklace from her

deceased mother. Defendant and his brother came to Brewer’s house one evening and attempted

to take apart her bathroom sink to see if the jewelry somehow fell into the drain. Brewer’s

roommate, Nate Patterson, who was an acquaintance of Stephens, was present at the time. They

did not find the jewelry in the drain. The following day, Brewer filed a police report. When asked

-9- if she told defendant who she suspected of taking her jewelry, Brewer said, “At this point Nate had

already said that him and [Stephens] were the only two there at that point, and he said he didn’t

take it so that would be the only other answer.”

¶ 43 ii. Tywon White’s Testimony

¶ 44 Tywon White had been friends with defendant for over 10 years. White considered

defendant to be “[l]ike a brother.” White described Whittie as one of his friends as well. The State

questioned White regarding traveling with defendant to Beloit, Wisconsin, to purchase a 9-

millimeter SCCY handgun in June or August 2018. White denied making the trip with defendant

and claimed he went with Reed Nelson, who lived in Wisconsin. White claimed detectives altered

his statement to say he went with defendant. When asked about the passage in which he told

detectives, “[Defendant] would leave the SCCY with me to hold onto at various times for whatever

reasons,” White answered that he never possessed it and defendant “never possessed it, really.”

Whittie, however, did possess it. Thus, the passage attributed to White, reading, “[Defendant],

[Whittie][,] and I would share the SCCY,” was also untrue.

¶ 45 White claimed not to know anything about Stephens’s murder. According to White,

Whittie had the gun that day. White denied that Whittie retrieved the gun from him that day. When

asked about the passage of the statement where he said, “[Whittie] *** picked up the gun from me

before [Stephens] *** was killed,” White answered, “No, that’s not true.” White testified

defendant stopped by his home on the day of Stephens’s murder, asking him to accompany him to

try to get Brewer’s jewelry back. White declined, explaining he “just didn’t want to deal with it.”

Defendant then said he would enlist the help of Whittie, “not to harm anyone, but just to try to get

the jewelry back.”

- 10 - ¶ 46 White claimed that later that day, defendant called him and reported that “[Whittie]

*** had to shoot and kill [Stephens],” and Stephens’s body was “dumped in the country.”

Thereafter, White rode with defendant on a driving assignment to Chicago. Defendant was upset

during this trip and told White “something bad went down.” Defendant told White that he, Whittie,

and Stephens were driving to Brewer’s house when, suddenly, while defendant was turning onto

Brewer’s street, Stephens “lunged at [Whittie]” and a fight ensued. White offered to sell the gun,

but defendant had already taken care of it.

¶ 47 iii. Whittie’s Testimony

¶ 48 Before trial, Whittie pled guilty to the offense of armed robbery and was sentenced

to 20 years’ imprisonment.

¶ 49 Whittie testified he knew defendant from recording music together at a local studio.

Whittie would “hang out” with defendant, and they became “pretty close.” According to Whittie,

defendant picked him up at his girlfriend’s house on December 7, 2018, explaining, “[Defendant]

wanted me to ride with him.” Whittie could not remember if defendant explained why. Whittie

was the only other person in the car at the time and sat in the front passenger seat. They picked

Stephens up from Walgreens, and he got in the back seat behind defendant. Whittie could not

remember where they went after leaving Walgreens, but “[m]oments after” leaving the parking

lot, Whittie saw a gun. When asked who had the gun, Whittie responded, “I think [Stephens] ***

had the gun, sir.” Upon further questioning, Whittie could not remember if defendant had the gun,

as he was intoxicated and on drugs during the incident. Whittie testified that when he told police

defendant had the gun, this was false. Whittie admitted he was originally charged with first degree

murder and provided a statement as part of a plea deal.

- 11 - ¶ 50 Whittie testified that as defendant began driving away from Walgreens with

Stephens in the back seat, “[a] gun was upped, and I quite don’t remember from there[.] All I know

is I got shot. *** I got shot somehow, sir.” When asked if defendant “ever” had a gun, Whittie

answered, “I do not think so, sir.” When confronted with telling police in his statement that “the

victim, Jaime Stephens, did not have a gun,” Whittie responded, “I quite don’t remember, sir.”

When confronted with telling police, “[Defendant] shot me,” Whittie responded, “I quite do

remember, sir,” and clarified this was because “defendant had a firearm in his hand.” However,

moments later, Whittie testified, “I don’t know if [defendant] had a firearm or not, sir.” Whittie

continued to be evasive in his testimony and maintained he did not know who shot Stephens,

despite previously telling detectives defendant shot him. Whittie testified he lied to detectives

when he told them defendant shot Stephens and denied he was there to get some jewelry back, as

he was there “just to ride.”

¶ 51 According to Whittie, the shots were fired in the car approximately “five to ten

minutes” after Stephens got inside. Whittie remembered Stephens punching him and defendant,

then “grabbing a gun and shooting *** [Stephens],” but on cross-examination, he said, “I don’t

think so” when asked if he had a “physical confrontation” with Stephens. When asked if he “[ ]ever

had the gun” or “[ ]ever shot at all,” Whittie answered, “No, sir.” Whittie thought he went to the

back seat after being shot and that Stephens was face down in the front seat. After the incident,

defendant drove to a remote area, where he deposited Stephens’s body. Defendant then dropped

Whittie off a block away from the hospital.

¶ 52 c. The Jury’s Verdict and Defendant’s Sentence

¶ 53 The jury found defendant guilty of counts II and III. (Count I had been previously

dismissed by the State.) Defendant filed a motion for a judgment notwithstanding the verdict or,

- 12 - alternatively, for a new trial, which the trial court denied. The court sentenced defendant to a total

of 60 years’ imprisonment. Defendant filed a motion to reconsider his sentence, which the court

denied.

¶ 54 This appeal followed.

¶ 55 II. ANALYSIS

¶ 56 On appeal, defendant argues (1) the trial court erred in denying his motion to

suppress statements made during the recorded police interview, contending before this court that

he received ineffective assistance from his initial attorney (Granger), rendering his statements

involuntary, due to the eliciting of highly incriminating statements in violation of the attorney-

client privilege and in the absence of a cooperation agreement with the State (and while operating

under a per se conflict of interest); (2) his trial counsel (Jazwiec) provided ineffective assistance

by only basing this motion to suppress on the conflict of interest and not on the initial attorney’s

conduct during the interview, which rendered defendant’s statements involuntary; (3) the court

erred in denying his motion to suppress evidence of statements he made during the earlier,

unrecorded police interview; (4) his trial counsel provided ineffective assistance by failing to raise

and argue the affirmative defense of self-defense; and (5) the cumulative effect of these errors

deprived him of a fair trial. For the reasons explained below, we agree with defendant that he

received ineffective assistance from his initial counsel at his recorded police interview (such that

the court erred in denying the motion to suppress) and from his trial counsel in connection with

the motion to suppress and conclude these defects require reversal of his convictions and remand

for a new trial.

- 13 - ¶ 57 A. Allegation of Ineffective Assistance of Counsel at Recorded Police

Interview Is Not Forfeited

¶ 58 Regarding the January 23, 2019, recorded police interview, defendant contends

Granger performed ineffectively in practically eliciting a confession from him. “Rather than advise

[defendant] during the interrogation, Granger conceded that [defendant] had committed crimes,

encouraged him to make incriminating statements, and advised detectives when [his] statement

contradicted the one he previously made to counsel.” Defendant urges this court to find Granger’s

conduct, eliciting incriminating statements in violation of the attorney-client privilege and in the

absence of an agreement with the State (and while operating under a per se conflict), to be

“deficient.” Defendant also contends Granger’s conduct “prejudiced” him, in that “were it not for

the admission of [his] statement, it is reasonably likely that the jury would have found [him] not

guilty of murder.” Granger’s ineffective assistance rendered defendant’s statements “involuntary,”

such that the trial court erred in denying the motion to suppress. Additionally, defendant argues

his trial counsel (Jazwiec) was ineffective for basing the motion to suppress solely on Granger’s

conflict of interest and not including Granger’s conduct during the interview.

¶ 59 In response, the State contends defendant’s arguments on appeal are forfeited, as

they “differ from the basis for the motion to suppress, which argued only that the statement should

be suppressed due to Attorney Granger’s conflict of interest.” Moreover, the absence in caselaw

at the time of trial of an “objective standard” applicable to an attorney’s representation at a

custodial interrogation “is the downfall of this argument in the context of ineffective assistance of

counsel.” Additionally, Granger “made a reasonable strategic decision to encourage defendant to

tell his story in exchange for the possibility of a cooperation agreement later on,” and defendant

“was not prejudiced by the statements he gave to the police during the interrogation” in any event,

- 14 - particularly in that he “did not confess to the police.” As defendant was not prejudiced by the

presentation of these statements to the jury, trial counsel was not ineffective in making the “tactical

decision” to base the motion to suppress solely on Granger’s conflict of interest.

¶ 60 In reply, defendant acknowledges his arguments on appeal with respect to the denial

of the motion to suppress were not “identical” to those he asserted in the trial court but argues this

does not result in the forfeiture of his arguments before this court. Defendant contends his

arguments before us were properly preserved because, as in the trial court, he “is still arguing that

his statement was involuntary because Granger provided ineffective assistance” and “the crux of

the factual and legal basis is the same on appeal” as it was in the trial court.

¶ 61 We conclude defendant’s arguments on appeal as to the impropriety of the trial

court’s denial of his motion to suppress his January 23, 2019, recorded police interview are not

forfeited, despite their not being identical to the arguments for suppression he raised in the trial

court. “In order to preserve an argument, for the purpose of appeal, from a jury trial, the challenge

must be presented to the trial court not only at the motion to suppress stage, but it must also be

included in the defendant’s post-trial motion.” People v. Johnson, 250 Ill. App. 3d 887, 893 (1993).

“The failure to properly preserve an issue for review results in forfeiture.” People v. Korzenewski,

2012 IL App (4th) 101026, ¶ 7. However, our supreme court has observed that “[a]n issue raised

by a litigant on appeal does not have to be identical to the objection raised at trial, and we will not

find that a claim has been forfeited when it is clear that the trial court had the opportunity to review

the same essential claim.” People v. Lovejoy, 235 Ill. 2d 97, 148 (2009). Defendant compares the

present case to People v. Salamon, 2022 IL 125722, ¶ 53, where the defendant argued the trial

court erred by declining to suppress an inculpatory statement allegedly elicited through coercive

behavior by detectives. The State contended the defendant’s argument was forfeited in that it was

- 15 - not the basis for suppression he argued before the trial court. Id. ¶ 57. Rather, before the trial court,

the defendant argued his statement should be suppressed because “the detectives improperly

reinitiated interrogation after he had invoked his right to counsel and that his statutory right to a

telephone call was violated.” Id. ¶ 58.

¶ 62 In Salamon, the supreme court found the defendant’s claim preserved for review.

Id. ¶ 59. Specifically, the court concluded:

“Considering the evidence and arguments presented at the

suppression hearing, *** the factual and legal bases supporting

defendant’s argument have not changed. The crux of defendant’s

argument in the trial court and before this court is that his statement

was rendered involuntary because he was detained for

approximately 24 hours and deprived of the ability to contact an

attorney even though he repeatedly invoked his right to counsel and

requested access to a telephone in order to exercise that right.” Id.

¶ 63.

¶ 63 Likewise, here, while defendant’s arguments for suppression before the trial court

and this court are not identical, they pertain to the need for his statements to have been suppressed

due to their involuntariness resulting from Granger’s ineffective assistance. Defendant argued in

the trial court that Granger had a per se conflict through concurrently representing defendant and

a prosecution witness, amounting to ineffective assistance and rendering his statements

involuntary. Before this court, however, defendant argues Granger violated the attorney-client

privilege by actively eliciting incriminating statements, in the absence of an agreement with the

State, during the recorded police interview, also amounting to ineffective assistance and rendering

- 16 - his statements involuntary, and trial counsel was ineffective for failing to raise this additional basis

for the involuntariness, and need for suppression, of these very statements. (We also note defendant

cites, in his opening brief, principles expounded in the American Bar Association Standards for

Criminal Justice pertaining to the obligation of a defense attorney to “cease representation if a

conflict of interest exists.”) The factual and legal basis, and overall “crux,” of defendant’s

argument before both courts is that his statements were rendered involuntary due to Granger’s

ineffective assistance and, therefore, should have been suppressed. Thus, the issue of the propriety

of the trial court’s denial of defendant’s motion to suppress the January 23, 2019, police interview

was preserved for appellate review.

¶ 64 B. Reversal of Defendant’s Convictions and Remand for a New Trial Is Required

¶ 65 1. Ineffective Assistance Due to Counsel’s Per Se Conflict of Interest

¶ 66 The trial court eventually disqualified Granger from representing defendant, given

the per se conflict inherent in his concurrent representation of defendant and Davis-Puckett.

However, the court did not find this conflict required the suppression of defendant’s January 23,

2019, police interview. For the reasons stated below, we conclude Granger rendered ineffective

assistance at this interview by virtue of the per se conflict such that the court erred in denying the

motion to suppress.

¶ 67 At the outset, we note this argument of ineffective assistance of counsel relates to

counsel’s conduct at a pretrial interrogation, not the trial itself, to which the sixth amendment right

to counsel has firmly attached. See U.S. Const., amend. VI. Nevertheless, our supreme court has

recognized that “[t]he State [constitutional] due process guarantee (article I, section 2) provides

the general basis for an accused’s right to the assistance as well as presence of counsel during any

- 17 - custodial interrogation.” People v. McCauley, 163 Ill. 2d 414, 441 (1994); see Ill. Const. 1970, art.

I, § 2. Later, in a passage citing McCauley, the appellate court noted:

“[A] defendant’s right to counsel under the fifth amendment does

not include the same guarantee of effective assistance of counsel

contained in the sixth amendment but, rather, only protects a

defendant from coerced confession. However, we believe that the

Illinois Constitution entitles those subject to custodial interrogation

the right to conflict-free counsel. Ill. Const. 1970, art. I, §§ 2, 10.

*** This right has not been found satisfied by the mere formality of

the appointment of an attorney, but has required effective

representation.” (Emphasis added.) People v. Rish, 344 Ill. App. 3d

1105, 1112-13 (2003).

¶ 68 The right to the effective assistance of counsel, at least so far as the Illinois

Constitution is concerned, has therefore been understood to include the right to conflict-free

representation during a custodial interrogation. Importantly, “[i]f a per se conflict is found, a

defendant need not show that the conflict affected the attorney’s actual performance.” People v.

Fields, 2012 IL 112438, ¶ 18. In this regard:

“The supreme court has identified three situations in which a per se

conflict of interest exists: ‘(1) where defense counsel has a prior or

contemporaneous association with the victim, the prosecution, or an

entity assisting the prosecution; (2) where defense counsel

contemporaneously represents a prosecution witness; and (3) where

defense counsel was a former prosecutor who had been personally

- 18 - involved with the prosecution of defendant.’ ” (Emphasis added.)

People v. Acevedo, 2018 IL App (2d) 160562, ¶ 18 (quoting Fields,

2012 IL 112438, ¶ 18).

¶ 69 Here, it is undisputed Granger had established concurrent attorney-client

relationships with defendant and Davis-Puckett at the time of defendant’s custodial interrogation

on January 23, 2019. It is also undisputed Granger’s concurrent representation of defendant and a

State witness constituted a per se conflict of interest notwithstanding that it arose prior to trial and

in the context of defendant’s custodial interrogation. A defendant’s right to counsel includes a right

“to counsel of choice.” People v. Gonzalez, 2019 IL App (1st) 152760, ¶ 79. Accordingly, “a

defendant may waive the right to a conflict-free counsel.” Id. Nevertheless, “a defendant’s right to

choice of counsel is subject to certain limitations, including a trial court’s ‘ “substantial latitude” ’

to refuse to allow a defendant to waive his counsel’s actual or potential conflict of interest.

[Citation.]” Id. Here, however, the trial court did not allow defendant to waive his right to conflict-

free representation and removed Granger from further participation in the case. Granger operated

under a per se conflict of interest at defendant’s recorded police interview and provided ineffective

assistance in so doing, rendering defendant’s statements involuntary.

¶ 70 2. Ineffective Assistance Due to Violating Attorney-Client Privilege

and Eliciting Incriminating Statements

During Defendant’s Recorded Police Interview

¶ 71 While Granger’s per se conflict of interest in concurrently representing a

prosecution witness and defendant during the latter’s recorded police interview itself constituted

ineffective assistance of counsel, rendering defendant’s statements involuntary, we find Granger’s

action in violating the attorney-client privilege to elicit highly incriminating statements from

- 19 - defendant (with no cooperation agreement from the State in place) also meets this standard. This,

too, required the trial court to have suppressed this interview and requires this court to reverse

defendant’s convictions and remand for a new trial.

¶ 72 This court has summarized the familiar standard applicable to assessing claims of

ineffective assistance of counsel as follows:

“To establish a claim of ineffective assistance of counsel, a

defendant must satisfy the standard set forth in Strickland v.

Washington, 466 U.S. 668 [(1984)]. First, the defendant must prove

that counsel made errors so serious, and counsel’s performance was

so deficient, that counsel was not functioning as the ‘counsel’

guaranteed by the sixth amendment to the United States Constitution

(U.S. Const., amend. VI).

Second, the defendant must establish prejudice—that is, she

must prove that a reasonable probability exists that, but for counsel’s

unprofessional errors, the result of the proceeding would have been

different. A reasonable probability is a probability sufficient to

undermine confidence in the outcome. Further, this prejudice prong

of the Strickland test entails more than an ‘outcome-determinative’

test; the defendant must also show that counsel’s deficient

performance rendered the result of the trial unreliable or the

proceeding fundamentally unfair.” (Emphasis added.) People v.

Little, 335 Ill. App. 3d 1046, 1052 (2003).

- 20 - ¶ 73 After noting how the appellate and supreme courts have established a defendant’s

state constitutional right to the effective assistance of counsel during a custodial interrogation, the

appellate court in Rish adopted the Strickland standard (see Strickland v. Washington, 466 U.S.

668 (1984)) for a claim of ineffective assistance of counsel rendered in that context. Rish, 344 Ill.

App. 3d at 1114. The court explained, “We adopt this test for ineffective assistance claims under

the Illinois Constitution since many courts have substantial experience applying it, from its wide

use as the standard for ineffective assistance under the sixth amendment to the [United States]

Constitution.” Id.

¶ 74 Applying this standard to Granger’s conduct during defendant’s January 23, 2019,

recorded police interview, irrespective of the per se conflict addressed above, we conclude he

rendered ineffective assistance. Granger performed deficiently in actively eliciting highly

incriminating information in violation of the attorney-client privilege and with no agreement with

the State secured in advance. Granger effectively became an interrogator of his own client, who

was charged with one of the most serious crimes, during his recorded police interview. Granger

prodded defendant at the beginning of the interview to “get into it” and tell the detectives “exactly

what you told me what happened.” Granger admonished defendant he needed to share “all of it”

and “everything you know right now” in order to “help yourself.” Granger also told defendant in

the presence of detectives that he “technically” committed a “criminal offense.” Perhaps even

worse, Granger confronted defendant in the presence of detectives about his apparently inaccurate

accounts of where he drove after the murder and what happened to the murder weapon.

¶ 75 We also conclude these actions, so manifestly adverse to defendant’s interests, were

prejudicial to defendant. Defendant’s statements in the presence of police, at the insistence of his

own attorney, placing himself inside the vehicle in which the murder of an acquaintance, who he

- 21 - picked up from the store for the purpose of confronting about stealing Amber’s jewelry, occurred,

on the date and at the time, and describing how the victim was somehow shot in the back seat

either by defendant himself or by the associate he recruited for “safety reasons” to accompany him

(and who needed to be prepared to respond in the event of a “strong-arm situation”), were

tantamount to confessions (with no agreement from the State in advance). Confessions have been

appropriately recognized as “the most powerful piece[s] of evidence the State can offer,” whose

“effect on a jury is incalculable.” People v. R.C., 108 Ill. 2d 349, 356 (1985). This is especially so

here, in that the State prosecuted defendant on a theory of accountability, pursuant to which his

guilt was not dependent on the jury finding he was the shooter. As Justice McDade noted in her

special concurrence in People v. Jackson, 2014 IL App (3d) 120239, ¶ 124 (McDade, J., specially

concurring):

“There is no more damning evidence that can be presented

against a criminal defendant than his or her own confession of guilt.

If the confession is on audio/video tape and the jury can see it, it can

become even more potent. The court’s finding that a confession was

voluntary reduces, as a practical matter, the obligation to carefully

evaluate its reliability. There is no need for the fact finder to weigh

the evidence against the defendant—he confessed. Nor is there any

need to consider anything raised in defense—she confessed. All of

the processes set up to test the strength and persuasiveness of the

extrinsic evidence, if any, are obviated—he confessed.”

As Justice McDade also noted, quoting from Justice William Brennan’s dissenting opinion in

Colorado v. Connelly, 479 U.S. 157 (1986):

- 22 - “ ‘Triers of fact accord confessions such heavy weight in their

determinations that “the introduction of a confession makes the

other aspects of a trial in court superfluous, and the real trial, for all

practical purposes, occurs when the confession is obtained.”

[Citations.] No other class of evidence is so profoundly prejudicial.

[Citation.]’ ” Jackson, 2014 IL App (3d) 120239, ¶ 125 (McDade,

J., specially concurring) (quoting Connelly, 479 U.S. at 182

(Brennan, J., dissenting, joined by Marshall, J.)).

This court concludes, given the uniquely probative and prejudicial nature of confessions,

Granger’s practically eliciting defendant’s confessions to his involvement in Stephens’s murder

was prejudicial, particularly in that it made the proceeding fundamentally unfair. See Little, 335

Ill. App. 3d at 1052; People v. St. Pierre, 122 Ill. 2d 95, 114 (1988) (noting the “extreme probative

weight” of confessions).

¶ 76 Aside from our application of the Strickland standard as envisaged by Rish, we find

the two out-of-state cases defendant cites particularly persuasive in illustrating the ineffectiveness

of Granger’s assistance during the recorded police interview. In Wayrynen v. Class, 1998 SD 111,

¶ 4, 586 N.W.2d 499, the defendant’s attorney arranged a meeting with the state’s attorney for his

client to confess. The South Dakota Supreme Court concluded the defendant received ineffective

assistance of counsel when his attorney assisted the police in questioning and elicited additional

information when there was no prior agreement with the state. Id. ¶¶ 17-21. Similarly, in Claudio

v. Scully, 982 F.2d 798, 800 (2d Cir. 1992), the defendant, a suspect in a murder case, upon his

attorney’s recommendation, gave a statement confessing to murder when there was no plea

agreement in place. The Second Circuit held appellate counsel was ineffective for not raising the

- 23 - issue on appeal when the defendant’s attorney “actively participated in the questioning” during his

interview and the district attorney’s press conference thereafter. Id. at 800-05.

¶ 77 Granger’s conduct during defendant’s recorded police interview bears important

similarities to that of the attorneys in the aforementioned cases. As with the defendant’s counsel

in Wayrynen and Claudio, Granger welcomed defendant as a client seeking advice and guidance

regarding the very serious criminal charges he was facing. See Wayrynen, 1998 SD 111, ¶ 20;

Claudio, 982 F.2d at 799-800. After learning information from defendant about Stephens’s

murder, Granger approached the state’s attorney’s office and discussed the possibility of a

cooperation agreement should defendant wish to speak about the murder but was told none would

be forthcoming. See Claudio, 982 F.2d at 800. There was no plea and/or cooperation agreement in

place before Granger arranged a meeting between detectives and defendant to share what he knew

about the murder (on the remote possibility he would be offered a cooperation agreement). See

Wayrynen, 1998 SD 111, ¶ 20; Claudio, 982 F.2d at 800. Moreover, Granger actively elicited

highly incriminating information, in violation of the attorney-client privilege, effectively

becoming an interrogator of his own client in the process. See Wayrynen, 1998 SD 111, ¶ 4 (noting

the defendant’s attorney “assisted the police in questioning [the defendant] by drawing out

additional information”); Claudio, 982 F.2d at 800 (noting the defendant’s attorney “actively

participated in the questioning” that precipitated the defendant’s confession).

¶ 78 3. Ineffective Assistance in Connection With the Motion to Suppress

¶ 79 This court likewise concludes trial counsel (Jazwiec) rendered ineffective

assistance in confining his motion to suppress to Granger’s per se conflict and not including his

conduct during the interview as an additional basis for suppression. Our supreme court has required

that:

- 24 - “[W]here an ineffectiveness claim is based on counsel’s failure to

file a suppression motion, in order to establish prejudice under

Strickland, the defendant must demonstrate that the unargued

suppression motion is meritorious, and that a reasonable probability

exists that the trial outcome would have been different had the

evidence been suppressed.” People v. Henderson, 2013 IL 114040,

¶ 15.

The unargued basis for suppression was meritorious, as it constituted an independent ground for

concluding Granger rendered ineffective assistance during defendant’s recorded police interview.

Given the uniquely probative and prejudicial nature of confessions, there is a reasonable

probability defendant would not have been convicted had Granger not practically elicited his

confession to his involvement in Stephens’s murder. Consequently, Jazwiec rendered ineffective

assistance in failing to argue Granger’s conduct during the recorded police interview as an

additional basis for its suppression.

¶ 80 4. The Trial Court Erred in Denying Defendant’s Motion to Suppress

and Its Error Was Not Harmless Beyond a Reasonable Doubt

¶ 81 As defendant received ineffective assistance of counsel and thus was deprived of

one of his constitutional rights during his recorded police interview, the trial court erred in denying

his motion to suppress. In particular, the court erred by concluding that merely because defendant

delivered his statements “voluntarily” in the sense of having been informed of his constitutional

rights prior to the interview beginning, Granger’s per se conflict did not require the suppression

of his statements. To be clear, the “voluntariness” of defendant’s statements in the sense of their

being delivered in the absence of coercive conduct by the detectives has never been at issue.

- 25 - Rather, the connotation of “voluntariness” defendant advances before this court is in relation to

making these highly incriminating statements having been afforded ineffective assistance by

Granger through both his per se conflict and his prodding of defendant to reveal confidential

information obtained in the confines of the attorney-client relationship and with no cooperation

agreement with the State arranged in advance.

¶ 82 Our supreme court has enunciated three approaches for determining whether a

constitutional error is harmless beyond a reasonable doubt: “ ‘(1) focusing on the error to

determine whether it might have contributed to the conviction, (2) examining the other evidence

in the case to see if overwhelming evidence supports the conviction, and (3) determining whether

the improperly admitted evidence is merely cumulative.’ ” People v. Coleman, 2021 IL App (1st)

172416, ¶ 104 (quoting People v. Patterson, 217 Ill. 2d 407, 428 (2005)). “Each approach need

not be applied or satisfied.” People v. Mazar, 333 Ill. App. 3d 244, 253 (2002), abrogated on other

grounds by People v. Breedlove, 213 Ill. 2d 509 (2004).

¶ 83 There is an ample probability the trial court’s erroneous admission of defendant’s

recorded interview contributed to his convictions. By admitting defendant’s interview, the jury

was able to hear him, at his own attorney’s insistence, place himself inside the vehicle on the date

and at the time when an acquaintance was murdered, and describe how the victim was somehow

shot in the back seat of his vehicle either by defendant or by the associate he recruited for “safety

reasons” to accompany him to confront the victim. As we explained above, these statements were

tantamount to confessions, recognized as “the most powerful piece[s] of evidence the State can

offer,” and whose “effect on a jury is incalculable” (R.C., 108 Ill. 2d at 356), especially so here,

where the State prosecuted defendant on a theory of accountability pursuant to which his guilt was

not dependent on the jury finding he was the shooter. Given the uniquely probative and prejudicial

- 26 - nature of confessions, in conjunction with defendant having been prosecuted under an

accountability theory, we conclude the trial court’s erroneous admission of his recorded interview

was not harmless beyond a reasonable doubt.

¶ 84 5. Retrial Is Not Precluded by Double Jeopardy

¶ 85 Finally, this court concludes retrying defendant would not be precluded by double

jeopardy. “The double jeopardy clause does not preclude retrial when a conviction has been

overturned because of an error in the trial proceedings, but retrial is barred if the evidence

introduced at the initial trial was insufficient to sustain the conviction.” People v. Drake, 2019 IL

123734, ¶ 20. A retrial would be appropriate “if the evidence presented at the initial trial, including

any improperly admitted evidence, was sufficient to sustain the conviction.” Id. ¶ 21. As to this

consideration:

“ ‘In reviewing the sufficiency of the evidence in a criminal case,

our inquiry is whether, after viewing the evidence in the light most

favorable to the prosecution, any rational trier of fact could have

found the essential elements of the offense beyond a reasonable

doubt.’ [Citation.] All reasonable inferences from the evidence must

be drawn in favor of the prosecution.” People v. Hardman, 2017 IL

121453, ¶ 37.

¶ 86 Here, the evidence is sufficient to sustain defendant’s convictions for first degree

murder (720 ILCS 5/9-1(a)(2) (West 2018)) and concealment of a homicidal death (id. § 9-3.4(a)).

The evidence adduced at trial established either defendant (prosecuted under an accountability

theory) or Whittie shot Stephens 10 times, thereby killing him, while he was in the back seat of

defendant’s car and discarded his deceased body. This is more than sufficient for a rational trier of

- 27 - fact to find the essential elements of the offenses met beyond a reasonable doubt. Accordingly,

retrial is not precluded by double jeopardy. However, any retrial must be conducted without

defendant’s improperly admitted January 23, 2019, recorded police interview.

¶ 87 III. CONCLUSION

¶ 88 For the reasons stated, we reverse the trial court’s judgment and remand for a new

trial.

¶ 89 Reversed and remanded.

- 28 - People v. Parks, 2025 IL App (4th) 230597

Decision Under Review: Appeal from the Circuit Court of Winnebago County, No. 19- CF-211; the Hon. Ronald J. White, Judge, presiding.

Attorneys James E. Chadd, Catherine K. Hart, and Sarah Inskeep, State for Appellate Defender’s Office, of Springfield, for appellant. Appellant:

Attorneys J. Hanley, State’s Attorney, of Rockford (Patrick Delfino, David for J. Robinson, and Matthew S. Goldman, of State’s Attorneys Appellee: Appellate Prosecutor’s Office, of counsel), for the People.

- 29 -