People v. Little, 2016 IL App (3d) 140124 (March). Episode 158 (Duration 8:10)

Cigarette break is not a sufficient amount of time to remove the taint of the original unrecorded interrogation violation.

Defendant arrested with the murder weapon used to shoot and kill a store clerk.

The Interrogation

He is questioned about the gun without Miranda and without the interview being recorded.

He says he was present when the store clerk was shot, but that he was not the shooter. Eventually, he makes a recorded statement after Miranda, but the trial judge only suppress the initial statement.

He is convicted of the murder.

Recorded Interrogations

725 ILCS 5/103-2.1(b) requires strict compliance with the recording of murder interrogations.

This law specifically says that:

An oral, written, or sign language statement of an accused made as a result of a custodial interrogation conducted at a police station or other place of detention shall be presumed to be inadmissible as evidence against the accused in any criminal proceeding brought under [the murder sections of the code] unless:

(1) an electronic recording is made of the custodial
interrogation; and
(2) the recording is substantially accurate and not intentionally altered.

What Were They Thinking?

The subjective beliefs of the detectives regarding the declarant’s status as a witness or a murder suspect at the time of the unrecorded custodial interrogation is irrelevant and not determinative of the statement’s presumed inadmissibility where the detectives have not strictly complied with the videotaping requirements.

However, the recorded segment of the interrogation followed the unrecorded segment of the custodial interrogation and therefore, is presumed inadmissible.

Trial Court Error

The trial court erred by failing to recognize the second portion of the custodial interrogation in this case was presumptively inadmissible, as a matter of law, because the detectives did not record the preceding segment of the interrogation as required by section 103-2.1(b) of the Code.

…and a cigarette break is not a sufficient amount of time to remove the taint of the original Miranda violation.

Holding

Murder conviction was reversed.

The detectives’ decision not to record the first segment of the custodial interrogation had significant negative consequences on the prosecutor’s ability to introduce compelling evidence of guilt at trial; specifically, defendant’s own incriminating admissions to felony murder.

You Have To Read The Whole Section

Lower down in the code, Section 103-2.1(d) of the Code provides:

“If the court finds, by a preponderance of the evidence, that the defendant was subjected to a custodial interrogation in violation of this Section, then any statements made by the defendant during or following that nonrecorded custodial interrogation, even if otherwise in compliance with this Section, are presumed to be inadmissible in any criminal proceeding against the defendant except for the purposes of impeachment.”  725 ILCS 5/103-2.1(d).

So, regardless of the fact that the subsequent statements were recorded.

All the statements are out, unless an attenuation hearing cures the presumption of inadmissibility.

Taint Still There

Here, defendant was allowed to smoke a cigarette before the recorder was turned on, but that ain’t enough to blow away the stink of this bad interrogation.