People v. Green

2014 IL App (3d) 120522

Opinion filed August 26, 2014

Modified Upon Denial of Rehearing October 2, 2014
______________________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

THIRD DISTRICT

A.D., 2014
______________________________________________________________________________

PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the Circuit Court
) for the 12th Judicial Circuit
Plaintiff-Appellee, ) Will County, Illinois,
)
v. ) Appeal No. 3-12-0522
) Circuit No. 09-CF-78
)
JERAMY J. GREEN, )
) The Honorable Sarah Jones,
Defendant-Appellant. ) Judge, Presiding.
______________________________________________________________________________

JUSTICE McDADE delivered the judgment of the court, with opinion.
Justices Holdridge and O'Brien concurred in the judgment and opinion.
______________________________________________________________________________

¶1 OPINION

¶2 Jeramy J. Green (Green), the defendant, was charged with first degree murder. He filed

several pretrial motions including a motion to quash arrest and suppress evidence. The trial court

granted the State's motion for a directed finding at the close of Green's motion hearing. It found

the investigatory stop leading to Green's arrest proper and that the defense failed to shift the
 burden to the state. It also found the unrecorded portion of Green's custodial interview voluntary

and reliable rebutting the inadmissibility provision of section 103-2.1 of the Illinois Code of

Criminal Procedure (the Code). (725 ILCS 5/103-2.1 (West 2008)). Section 103-3(a) of the

Code regarding family members was found to be inapplicable. (725 ILCS 5/103-3(a) (West

2008)). Green's motion to reconsider was denied.

¶3 The case proceeded to a bench trial. Green was convicted of first degree murder and

sentenced to 36 years' imprisonment. He appealed the trial court's ruling on his pre-trial motion

to quash his arrest and suppress evidence. In a decision issued August 26, 2014, this court

affirmed the trial court's denial of his pre-trial motion and Green's conviction.

¶4 Green has filed a petition for rehearing raising two issues with this court's decision: (1)

the court relied on a factual finding not supported by the record and (2) this court did not

properly factor in purportedly conflicting evidence in reviewing defendant's challenge to the trial

court's entry of a directed verdict. The petition is denied with slight modification of the opinion.

We have removed the word "recent" as a description of the threats described to Reid by

Brittany's parents. A fuller description of the testimony of Detectives Avila, Diehl and

Schumacher and a more extensive discussion of the standard for granting a directed verdict have

been included. The ruling of the trial court remains affirmed.

¶5 FACTS

¶6 The following account of events is drawn from the testimony at Green's bench trial.

¶7 Around 11:30 p.m. on January 7, 2009, Lieutenant Marc Reid (Reid) responded to a

dispatch call in Joliet and observed the dead body of Brittany Brooks (Brittany). Through a

police database, Reid learned that she had been involved in prior domestic incidents with Green.

2
 Reid also spoke with Brittany's parents and learned of threatening text messages between

Brittany and Green. 1 Reid discovered four addresses associated with Green and that a Pontiac

Grand Am was registered to him.

¶8 After providing them with the information he had regarding the investigation, Reid sent

several detectives to each of the four addresses. Reid noted there was no probable cause to arrest

Green and no specific information existed at the time directly linking Green to Brittany's death.

He assigned Detectives Patrick Schumacher (Schumacher), Moises Avila (Avila), and Stephen

Diehl (Diehl) to investigate the house at 1018 Summit, one of the four addresses.

¶9 Upon arriving at the house, the detectives did not see Green's Pontiac Grand Am. Avila

testified they drove by the front and then the rear of the house checking for vehicles parked in

either area that might have occupants sitting with the engine running and lights off either waiting

to leave or having just arrived; they found none. He testified that they returned to the front of the

house and observed a Honda minivan (minivan) and a Chevy Monte Carlo (car) driving away.

1
While there is, in fact, evidence in the record that at least one of the generic threats

about which Reid was informed by Brittany's parents had been recent, there is nothing in the

record to show that he was actually told that night about the timing or that he factored it into his

decision to seek out Green. However, contrary to the defendant's contention, the timing of the

threats was not the basis for our holding.

Not knowing whether any of the threatening communications had been recent does not

undermine the impact of the officer's knowledge that Brittany and defendant had a history of

threatening texts, emails and voicemail messages and a history of domestic violence. Such

information in any homicide investigation would make a person "a person of interest."

3
 He stated that the two vehicles had not been in the front when they originally arrived. He had no

knowledge whether the vehicles or persons in them were associated with the house.

¶ 10 Diehl testified that the squad car drove by the front and then rear of the house, he saw the

minivan and car parked in the back of the house and also saw them leaving from the back of the

house within minutes of the detectives' arrival. He did not see anyone get into the cars but

speculated its occupants came from the house since the cars were parked on the property.

¶ 11 Schumacher testified similarly to Diehl, stating that after checking the area around the

house for Green's car, he saw two vehicles leaving from the rear of the house. He stated that he

could not recall who saw the vehicles first or the details of their discussion at that time about

them. He also had no knowledge of who owned the vehicles or who was in them. He radioed

dispatch for assistance, providing the description of the vehicles and the direction in which they

were heading so they could be stopped and checked for occupants. No traffic violations had

been committed.

¶ 12 Officer Daniel Rupp heard the dispatched stop request. He intercepted and stopped the

minivan. Rupp exited his car, drew his weapon for general safety purposes, and ordered the

female driver, Green's sister, out of the minivan. When she complied, he handcuffed her and

placed her in his squad car. She testified that she was driving Green, who was a passenger in the

minivan, to the police station.

¶ 13 Sergeant Matthew Breen having also heard the stop request, exited the police station, and

drove his car to where Rupp had stopped the minivan. Breen went to the passenger side of the

minivan and spoke with a man who identified himself as Green. Although, Breen was

previously unaware Green was in the minivan, he recognized him as a person of interest relative

4
 to Brittany. Breen saw blood on Green's person, ordered him out of the minivan, and handcuffed

him for officer safety purposes.

¶ 14 Schumacher, Diehl, and Avila arrived at the stopped minivan. Breen walked Green to

Diehl who noted a large amount of blood on Green's sweatshirt and took it into evidence. Green

told Diehl that he had been on his way to the police station to make a statement when the

minivan was stopped. Green was then walked to the police station.

¶ 15 At the police station, Reid ordered Diehl to start the recording equipment for the

interrogation room, which Diehl failed to do properly.

¶ 16 At 3:23 a.m., Diehl and Avila presented and read Green a waiver of rights form, which

Green signed. He agreed to speak with the detectives and did not ask for an attorney. Green was

offered food, water, and the opportunity to use the restroom. Diehl noted that Green was in his

mid-20's, had a small cut on his hand but no other injuries, and exhibited no mental deficiencies.

¶ 17 At 4:44 a.m., Detective John Ross (Ross) was assigned to watch the interrogation on the

recording computer and discovered that the equipment had not been recording. He started it and

notified Reid of the error. Diehl and Avila, who were interrogating Green at the time, were not

informed that the first one hour and twenty-three minutes of the custodial interview had not been

recorded. They were told of the error when they later left the interrogation room. Diehl was

reprimanded for not setting the equipment up properly.

¶ 18 Diehl and Avila both testified that People's Exhibit #12, a video recording of Green's

interrogation beginning at 4:44 a.m., accurately reflected their entire interview of Green. During

the taped portion of the custodial interview, the detectives repeated the first version of events

leading to Brittany's final moments that Green had given them during the unrecorded portion.

5
 Green never denied providing that account to them and his demeanor remained calm.

¶ 19 The detectives testified that they used profanity and raised their voices in an effort to get

Green to display some emotion and admit his involvement in Brittany's death. They told Green

several times that the crime scene did not match his story. The detectives admitted they were not

trained to use profanity.

¶ 20 Later during the interrogation, Reid provided crime scene photos of Brittany's body

which the detectives showed to Green. One of the photos placed directly in front of Green

showed only one set of footprints in the snow countering Green's first exculpatory statement.

The other photos of Brittany's body at the crime scene were placed sporadically on the table.

After Green repeatedly failed to explain the discrepancies between his story and the crime scene

photos, Diehl picked up a photo of Brittany, held it up to Green, and demanded that Green look

at Brittany's dead body and explain how she got there.

¶ 21 Diehl later left the room and was replaced by Ross. While Avila and Ross were in the

interrogation room, Green gave a second version of events leading to Brittany's death, after

which both detectives left the room. Ross reentered a few minutes later with Detective

Christopher Schott. Schott told Green he had been listening to the interview and that things did

not add up. Schott stated that the police had spoken with his cousin, his sister, and his sister's

husband and what they told the detectives did not match Green's story. Green stated several

times that he had told his family inconsistent and incomplete stories because of embarrassment.

The detectives told Green that his family would understand embarrassment but not lying and that

his family wanted the truth. Ross eventually left the room and Detective Shawn Filipiak took his

place.

6
¶ 22 Green accused Filipiak of spitting in his face. Pushing Green, Filipiak denied spitting on

him. Schott intervened. Filipiak offered to leave the room for Green's comfort and then left.

Schott was alone with Green. Green was given water, food and allowed to use the restroom.

¶ 23 Schott continued the interrogation and exhorted Green to tell him what happened. The

following are excerpts of the discussion.

¶ 24 Schott: I said if you don't talk to me about it, I can't – I can't put this – I can't – I can't

explain this, all right? And right now, your family wants to know. I mean, they're worried about

you. We're worried about what's going on. You've got to explain it. You've already told me that it

got out of hand, but you've got to explain to me. You've got to let me know what's going on. So

what happened? I'm not – I don't want to sit here and – I'm not (inaudible). I'm not going to sit

here and put words in your mouth. I don't want to sit here and make stuff up. I don't want to

make a scenario up. I want you to –

Green: My family still here?

Schott: Huh?

Green: My family still here?

Schott: They're around, yeah. Why? Do you want to see them?

***

Green: Can I see my family?

Schott: Going to answer my questions?

Green: If I answer these questions, can I see my family?

Schott: I'll talk to my boss. You answer the questions and I'll talk to my boss.

Green: So if I answer these questions, I'm going to be able to see my family?

7
 Schott: Then I'll talk to my boss.

Green: How?

Schott: I said that I'll talk to my boss, but you have to answer the questions and

you have to answer them truthfully. You have to give me something to go with. I

can't go in there, ask for a favor, if I got nothing to offer. Do you understand? See

you gotta tell me the truth so I know what's going on, okay? Did you stab her?

Did you?

Green: No

¶ 25 Green continued to insist a third person was there, but acknowledged that he was the one

who hurt the deceased. In response to several more denials of involvement, Schott told Green:

¶ 26 "How am I supposed to let you see your family if you don't talk to me about it; if you

don't give me something, which is the truth? You see what I'm saying? You're gonna send me out

there with nothing. What am I supposed to do? You understand? See you gotta tell me the truth.

You said you unintentionally hurt her, right? Is that what you're saying? I can't hear you. Is that

what you're saying?"

¶ 27 Green then admitted stabbing Brittany after she introduced a knife into their argument.

Schott left the interrogation room to get Green water and ask his supervisor about allowing

Green to see his family. Schott returned to the room to ask more questions, and Green told him

where he had dropped the knife after leaving Brittany's car.

¶ 28 After Green used the restroom, Schott asked him to sign a consent form for leave to

search his house, but Green refused.

¶ 29 ANALYSIS

8
¶ 30 Denial of Motion to Quash and Suppress

¶ 31 Green first argues that because the State failed to provide evidence that a reasonable and

articulable suspicion existed for the minivan to be seized, the trial court erred in granting the

State's motion for directed finding and denying his motion to quash arrest and suppress evidence.

He contends that the case should be remanded for a new trial excluding any evidence gathered as

a result of the seizure. We disagree and affirm the denial of Green's motion.

¶ 32 A ruling on a motion to quash an arrest and suppress evidence in the State's favor at the

close of defendant's evidence presents mixed questions of law and fact. People v. Nitz, 371 Ill.

App. 3d 747, 750 (2007). The trial court's findings of historical fact will be upheld on review

unless they are against the manifest weight of the evidence, but “a reviewing court remains free

to undertake its own assessment of the facts in relation to the issues presented and may draw its

own conclusions when deciding what relief should be granted.” People v. Lee, 214 Ill. 2d 476,

484 (2005). The ultimate question of whether to quash and suppress is reviewed de novo. Id. at

484.

¶ 33 A defendant moving to quash an arrest and suppress evidence must make a prima facie

case that the police lacked probable cause. People v. Brexton, 343 Ill. App. 3d 322, 326 (2003).

However, as here, when the denial of a motion to quash arrest and suppress evidence is based on

the grant of a motion for directed finding, "the trial court does not view the evidence [in the

light] most favorable to the [nonmovant] but rather (1) determines whether the [nonmovant] has

made out a prima facie case, then (2) weighs the evidence, including that which favors the

[movant]." Zankle v. Queen Anne Landscaping, 311 Ill. App. 3d 308, 311 (2000); see also 735

ILCS 5/2-1110 (West 2014). The trial court's decision will only be reversed if it is against the

9
 manifest weight of the evidence. Zankle, 311 Ill. App. 3d at 311. Green argues that the initial

investigatory stop that ultimately generated the probable cause for his arrest was illegal.

¶ 34 Terry v. Ohio, 392 U.S. 1 (1968), sets forth the principles we use to analyze the

reasonableness of investigatory stops. Under Terry, a police officer may conduct a brief,

investigatory stop of a person where the officer reasonably believes that the person has

committed, or is about to commit a crime. Terry, 392 U.S. at 22; People v. Gherna, 203 Ill. 2d

165, 177 (2003). Determining whether the stop was an unreasonable seizure is a two-step

process. People v. Sparks, 315 Ill. App. 3d 786, 792 (2000). First, we decide whether the stop

was justified at its inception; next, we determine whether the scope of the stop was proportional

to the circumstances that justified the interference in the first place. Terry, 392 U.S. at 19–20;

Sparks, 315 Ill. App. 3d at 792.

¶ 35 Justification of an investigatory stop at its inception is reviewed objectively. People v.

Thomas, 198 Ill. 2d 103, 109 (2001). "[T]he police officer must be able to point to specific and

articulable facts which, taken together with rational inferences from those facts, reasonably

warrant that intrusion." Terry, 392 U.S. at 21. The officer's suspicion must amount to more than

an inarticulate hunch (Terry, 392 U.S. at 22; People v. Close 238 Ill. 2d 497, 505, 511 (2010)),

but need not rise to the level of suspicion required for probable cause (United States v. Sokolow,

490 U.S. 1, 7 (1989); Close, 238 Ill. 2d at 505, 511). The collective knowledge of all of the

officers involved in the apprehension of a defendant, even if such knowledge is not told to the

arresting officer, may be considered by the trial court in determining whether a reasonable

suspicion existed. People v. Hoekstra, 371 Ill. App. 3d 720, 723 (2007).

¶ 36 Citing People v. Ertl, 292 Ill. App. 3d 863 (1997), Green argues that the officers’

10
 collective knowledge did not amount to suspicion that is more than an inarticulate hunch. In

Ertl, the court held that the defendant's estranged wife's police call did not justify a Terry stop of

the defendant. Ertl, 292 Ill. App. 3d at 873. In that case, the wife telephoned the police and

advised them that she and defendant had been involved in an altercation at her house. Id. The

Ertl court found that the defendant's stop was not a valid Terry stop because (1) the wife's

information “was based on limited and somewhat speculative observations and consisted largely

of [her] subjective fears”; (2) the wife did not witness the defendant commit any criminal act and

could not predict that he was going to do so; (3) the police only corroborated “innocent” details

of the wife's tip, including the description of the defendant's vehicle and its location; (4) the

officers did not observe defendant engage in any unlawful or threatening behavior before they

stopped him; and (5) although “there were several officers” available to go to the wife's location

and verify the information she provided, they did not do so. Id. at 873–74.

¶ 37 The case at hand is distinguishable from Ertl. Unlike Ertl, Green was a person of interest

in the homicide of Brittany. After interviewing Brittany's family members and checking the

police database, the police were aware that Green had sent Brittany threatening text messages

and there was a history of domestic incidents between them. Thus, Green had already been

implicated in earlier criminal domestic incidents and in threatening further such incidents. Reid

dispatched several detectives to find and stop Green because he was a person they "wanted to

speak to". 2 So a Terry stop of Green at that time would have been a valid stop.

2
Green's motion for rehearing references only the question as phrased by his counsel to

Reid during his testimony at the motion to quash arrest and suppress evidence which concluded

that Green was a person Reid felt they "should" talk to. However, in review of the entire

11
¶ 38 This court also concludes that the stop of the van in which Green was a passenger was a

valid stop because the facts known to the police created a reasonable, articulable suspicion

permitting a valid stop. Here the police learned of four addresses associated with Green,

including the Summit Street house, and knew the kind of vehicle registered to him. Avila

testified that their purpose for driving around the address was to look for Green's registered

vehicle as well as any other cars that had occupants sitting with the engine running and lights off

waiting to leave or having just arrived. Though they did not see Green's Pontiac Grand Am at

the house, the three detectives saw the minivan and the car depart from the vicinity of that house

at about 3:00 a.m. – only minutes after their arrival. A reasonable officer could form an

articulable suspicion that Green or someone assisting him to evade responsibility for harming

Brittany was present in one of those vehicles leaving that specific location. Because they were

leaving the area of one of the targeted addresses at 3:00 in the morning, the two vehicles fit what

the officers were looking for in their effort to stop and speak with Green. Although the minivan

was not observed engaging in any unlawful or threatening acts, the police had more than a mere

hunch to justify its seizure.

¶ 39 The scope of the stop was also proportional to the circumstances. Green, citing People v.

Mendez, 371 Ill. App. 3d 773 (2007), argues that the address investigated and where the minivan

originated was too remote in time and proximity to the crime to justify the later Terry stop.

Green requests the court to take judicial notice of the exact distance of the house from the crime

testimony, Reid specifically states that he put out a request that Green was someone they

"wanted to speak to" and affirmed the State's conclusion that Green should to be stopped in order

to be spoken to.

12
 scene and that the seizure occurred three hours after the crime. Yet, "[t]he size of the area in

which the offender might be found, as indicated by such facts as the elapsed time since the crime

occurred" is one of six factors the Mendez court indicated could be considered as grounds for

stopping a suspect soon after an offense is committed. Mendez, 371 Ill. App. 3d at 776 (citing

People v. Brown, 88 Ill. App. 3d 514, 519 (1980)). The "[k]nown or probable direction of the

offender's flight" is also a factor for consideration. Id. at 776. In this case, the house the vehicles

departed from is one of the four known addresses associated with Green. The detectives were

assigned to those addresses because they were probable destinations for Green. According to at

least two of the officers, the two vehicles were at the Summit Street house and they left there

around 3:00 a.m.

¶ 40 Additionally, our case is distinguishable from Reid v. Georgia, 448 U.S. 438, 439 (1980),

the origin of the quote the defendant cites to in People v. Croft, 346 Ill. App. 3d 669, 675 (2004).

In Reid, other than the fact that upon disembarking from a known location, the airplane, the

defendant's conduct, "[p]reced[ing] another person and occasionally look[ing] backward at

him," is all the police could assert as grounds for the stop. Reid, 448 U.S. at 439. The court

stated that the conduct on which the officers relied "[d]escribe[d] a very large category of

presumably innocent travelers, who would be subject to virtually random seizures." Id. Thus, the

stop was not a valid Terry stop.

¶ 41 In this case, however, though noting they did not actually know who was in the minivan

when they initiated the stop, there was little or no likelihood that a large category of innocent

persons would have been affected by a stop in theses circumstances. In addition to the

incriminating information gathered about Green prior to the detectives' dispatch, the minivan left

13
 the house of one of Green's known addresses. Two of the three assigned detectives testified that

the minivan was one of the two vehicles they observed leaving from the rear of the house. One

of those two detectives testified that he had seen both vehicles parked in the parking lot/driveway

at the rear of the house. Although the third detective, who was driving, did not see the vehicles

at the rear of the house, he, like the other two, did see the vehicle driving from the front of the

house where there had not been anything parked earlier. The detectives described the vehicles

and the direction each was traveling in the dispatch. The category of presumably innocent

persons potentially affected in the particular circumstance of this case is significantly limited.

¶ 42 Thus, the minivan's seizure was based on a reasonable and articulable suspicion. Since

Green does not contest the officer's probable cause to make the arrest after the stop, Green's

arrest was valid. Evidence found subsequent to that valid stop and arrest was lawfully obtained.

¶ 43 Alleged Violation of Due Process

¶ 44 Finally, we briefly address Green's constitutional claim that his due process rights were

violated when the trial court failed to include Avila's purportedly conflicting testimony about the

location of the vehicles. The trial court’s factual findings in its order included the testimony of

Schumacher and Diehl that the seized minivan had been parked in the rear of the house and left

from there. The court did not include, or presumably consider, Avila's testimony that they

observed the vehicles leaving from the front area of the Summit Street house.

¶ 45 Green argues that this constitutes a major discrepancy that the trial court failed to clarify.

He cites People v. Mitchell, 152 Ill. 2d 274 (1992), and People v. Bowie, 36 Ill. App. 3d 177

(1976), as controlling authority. However, these cases are distinguishable.

¶ 46 In Bowie, the court held that a defendant is denied due process "[w]here a record

14
 affirmatively indicates ***that the trial judge did not remember or consider the crux of the

defense when entering judgment." Bowie, 36 Ill.App.3d at 180. In Mitchell, the supreme court

reversed the judgment of the trial court because, as in Bowie, the trial court did not remember the

crux of the defense when entering judgment. Mitchell,152 Ill. 2d at 321.

¶ 47 Here, the record reflects that the trial judge interrupted defense counsel during his closing

argument to indicate that the court's notes included the deviation in Avila's testimony, thereby

showing the testimony had not been forgotten. Moreover, it is doubtful whether the differing

testimony of Avila is the crux of Green's defense. He does not argue or even mention this

claimed discrepancy in his closing argument at the hearing on the motion to quash arrest and

suppress evidence. He notes only Schumacher's testimony of seeing "a couple of cars leaving

the scene" and suggests no significance to the variance in the departure locations described by

the detectives.

¶ 48 Further, there is no support for Green's contention that the evidence should be viewed in

a light most favorable to him, forcing greater weight on Avila's purportedly differing testimony.

As previously stated, on a motion for directed finding, the trial court first determines whether the

nonmovant made a prima facie case, then weighs the evidence. 735 ILCS 5/2-1110 (West 2014);

Zankle, 311 Ill. App. 3d at 311. This latter step may result in the negation of evidence supporting

the nonmovant's prima facie case. Kokinis v. Kotrich, 81 Ill.2d 151, 155 (1980). The

nonmovant's remaining credible evidence must be sufficient to establish the nonmovant's prima

facie case or the movant's motion should be granted. Id. A reviewing court will only reverse the

trial court's decision if it is against the manifest weight of the evidence. Here, we do not find that

it is.

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¶ 49 In our review of the testimony of the officers, it would seem that there is no conflict.

Avila does not say the cars did not leave from the back of the Summit Street house. He only

stated that he saw the cars leave the area of the front of the residence. This does not conflict with

Schumacher's account of seeing the vehicles coming from the rear of the residence because he

further testified that he was unsure of who saw the vehicles first or their presumed discussion

about them. Additionally, Diehl was the only one to state that he saw the vehicles originally

parked in the back driveway of Summit Street house and then leave from the rear. When viewed

together, there is no significant – only a piecemealed account of the location of the vehicles at

different times by the officers. The trial court's findings of credibility were not against the

manifest weight of the evidence.

¶ 50 For these reasons, we find Green's due process rights were not abridged and the evidence

resulting from the arrest could properly be used at trial.

¶ 51 Admissibility of Unrecorded Custodial Statements

¶ 52 Green argues that the trial court erred in admitting his custodial interview statements at

his bench trial because the State was ineffective in sustaining its burden of proving that the

statements were voluntary and reliable pursuant to section 103-2.1 of the Code. (725 ILCS

5/103-2.1 (West 2008)). He asserts that cumulatively (1) acquiescence to his request to see his

family members conditioned upon him making an inculpatory statement; (2) his subjection to

repeated profanity and crime scene photos of the Brittany's body; and (3) a custodial interview

lasting five straight hours with essentially no breaks resulted in two involuntary and unreliable

exculpatory statements and a final inculpatory statement. The State argues it showed by a

preponderance of the evidence voluntariness and reliability in the custodial interview statements

16
 based on the totality of the circumstances exception provided under section 103-2.1(f) of the

Code. (725 ILCS 5/103-2.1(f) (West 2008)). We find the State's argument persuasive and affirm

the denial of Green's motion.

¶ 53 When reviewing a denial of a motion to suppress, great deference is given to the trial

court's findings of fact and due weight is given to inferences reasonably drawn from those facts.

Ornelas v. United States, 517 U.S. 690, 699 (1996). We review only for clear error. Id. Court's

factual findings are reversed only if they are against the manifest weight of the evidence;

however, the question of whether the confession was voluntary is reviewed de novo. In re G.O.,

191 Ill. 2d 37, 50 (2000). Thus our determination on that issue is made independently and

without reference to the trial court's conclusion.

¶ 54 Green's petition for de novo review of the entire cause is not appropriate. The trial court

was privy to the live testimony. People v. Valle, 405 Ill. App. 3d 46, 58 (2010) (noting the role

live testimony has in resolving a disputed issue of fact). We defer to its fact finding unless it is

against the manifest weight of the evidence.

¶ 55 Section 103-2.1 of the Code requires that statements made during a custodial interview be

presumed inadmissible as evidence against the accused in any criminal proceeding brought under

section 9-1 of the Code unless the entire interrogation was electronically recorded and the

recording is substantially accurate and not intentionally altered. (725 ILCS 5/103-2.1(b) (West

2008)). This is a rebuttable presumption. Section 103-2.1(f) of the Code provides an exception

to this presumed inadmissibility if the State shows by a preponderance of the evidence that the

statements were voluntarily given and are reliable, based on the totality of the circumstances.

(725 ILCS 5/103-2.1(f) (West 2008)).

17
¶ 56 Both parties agree on the following facts. Green was subjected to a custodial

interrogation for the crime of first-degree murder, a criminal proceeding listed under section 9-1

of the Code. (725 ILCS 5/103-2.1 (West 2008)). Therefore, the Joliet Police department was

required to electronically record the entire interrogation of Green. However, nothing from the

start of the interrogation at 3:23 a.m. until 4:44 a.m., a period of 81 minutes, or one and one third

hours, was recorded due to Diehl's failure to activate the recorder. Ross started the device at

4:44 a.m. and the rest of the interview was recorded. The trial court found that the failure to

record was unintentional. It also held that the initial unrecorded exculpatory statement given by

Green was voluntary and reliable on the grounds of Green's lack of objection when Diehl and

Avila repeated the original exculpatory statement after the recording was finally started.

¶ 57 While this court might take issue with the form of Green's "acquiescence" – mere silence

when the officers recounted his alleged, but unrecorded, exculpatory statement during the

recorded portion of the custodial interview – this issue is not before us. A silent response to the

officers' random recounting of pieces of a story may very well not amount to an "agreement"

regarding what had been discussed prior to the start of the recording. However, Green has

conceded that the officers' account was accurate by not only failing to challenge it on appeal but

also affirming it in his brief. 3

¶ 58 Nevertheless, Green does challenge the legal finding of the court that the State sustained

its burden of showing that the statements made during the recorded portion of the interrogation

were voluntary and reliable. The test for voluntariness of a statement is whether the defendant

3
Green concedes at page 10 of his brief that the account given by the officers is the

exculpatory statement he gave during the unrecorded portion of the custodial interview.

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 made the statement freely, voluntarily, and without compulsion or inducement of any sort, or

whether the defendant’s will was overcome at the time he or she confessed. People v. Gilliam,

172 Ill. 2d 484, 500 (1996). The assessment is based on the totality of the circumstances. Id.

Gilliam notes several factors to consider in determining voluntariness such as the defendant’s

age, education intelligence, mental capacity, physical condition at the time of questioning, the

legality and duration of the detention and questioning, whether the defendant was advised of his

constitutional rights, and any physical or mental abuse by police including the existence of

threats or promises. Id. at 500-01.

¶ 59 Green's first assertion that his final inculpatory statement was conditioned on a promise

to see his family while true is without significance. The trial court found that Green was a 23-

year old adult, with prior criminal justice experience, not lacking in mental capacity or physical

ability, and did not exhibit diminished intelligence. He does not fit the profile of an adult in

need of familial assistance when requested during a custodial interview. 4 He erroneously relies

on section 103-3 of the Code (725 ILCS 5/103-3 (West 2008)) and also cites a distinguishable

case, Haynes v. Washington, 373 U.S. 503 (1963).

¶ 60 Section 103-3 of the Code states that "[p]ersons who are arrested shall have the right to

communicate with an attorney of their choice and a member of their family by making a

4
People v. Westmorland, 372 Ill. App. 3d 868, 880-90 (2007), discusses the Illinois court

transition to the acceptance of a profound need of parental assistance when requested by newly-

emancipated offspring as opposed to previous cases holding that an adult's request for assistance

should only be honored if the request is made by a licensed attorney familiar with the legal

system.

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 reasonable number of telephone calls or in any other reasonable manner." 725 ILCS 5/103-3

(West 2008). The intention of this section of the Code is to "[p]ermit a person held in custody to

notify his family of his whereabouts" to enlist their help for procedural safeguards such as hiring

an attorney. 725 ILCS 5/103-3(a) (West 2008); People v. Prim, 53 Ill. 2d 62, 69 (1972). "[T]his

statute does not give the defendant the right to have a member of his family present with him

during interrogation or even to visit with him while in custody other than at regular visiting

periods." Prim, 53 Ill. 2d at 69.

¶ 61 Yet, Green argues that his facts are similar to and possibly worse than those of Haynes.

From the time he was arrested until his confession 16 hours later, plus an additional several days,

Haynes' continuous requests to call an attorney and also to call his wife to inform her of his

location and make legal arrangements were disregarded and used as an unfulfilled condition for

his inculpatory statements. Haynes, 373 U.S. at 511. He was not "advised by authorities of his

right to remain silent, warned that his answers might be used against him, or told of his rights

respecting consultation with an attorney." Id. The court found that the officers' conditioning the

ability to speak with an attorney or spouse regarding his whereabouts on signing an inculpatory

statement was an impermissible method of obtaining a confession. Id. at 508.

¶ 62 Here Green's family knew of his whereabouts and why he was being interviewed before

the custodial interview started. His sister was the driver of the minivan and testified that she and

Green were headed to the police station for Green to give a statement about the events leading to

Brittany's death. He was walked into the station from her minivan. Green was also told

throughout the custodial interview that his story and the statements given by his family members

did not match.

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¶ 63 Further, the record does not show that Green's requests for his family were made for legal

advice. He signed a waiver of rights form acknowledging he was fully informed of and validly

waived his right to counsel. That fact is not contested.

¶ 64 Next, Green argues that the officers' interrogation method was improper. It is improper

to use fear or threats to elicit confessions. Gilliam, 172 Ill. 2d at 501. However, the profanity

complained of by Green, though impolite, contextually amounted to the officers' characterization

of Green's account of the events leading to Brittany's death. The crime scene photos were

brought in to show that Green's first exculpatory statement did not match the visual evidence at

the scene. Though the photos depicting Brittany at the scene were graphic they were not solely

used to elicit a response from Green. They were also used to show that the statement of

occurrences given by Green in his first exculpatory statement was not consistent with the crime

scene.

¶ 65 Green's final argument points to the length of his interrogation. He asserts he was

subjected to six separate officers interrogating him for five hours until he finally gave his

inculpatory statement. He argues that he was only given a four minute break where there were

no detectives in his interrogation room and supports this argument by citing Spano v. New York,

360 U.S. 315 (1959). However, we do not believe the Supreme Court was referencing Green's

type of conditions when it discussed being overborne by official pressure and fatigue in Spano.

The defendant in Spano was interrogated by fifteen law enforcement officials for an

uninterrupted eight hours that "began in early evening, continued into the night, and did not bear

fruition until the not-too-early morning." Spano, 360 U.S. at 322. The only semblance of a

break involved moving from one interrogation area to another. Id. The defendant was not

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 allowed to speak with the attorney he had already retained and who had delivered him to the

custody of the police pursuant to a bench warrant. His confession was found to be involuntary

because he was "overborne by official pressure, fatigue and sympathy falsely aroused" by a ruse

created by the police and executed by his friend. Id. at 323.

¶ 66 Green's custodial interview varies greatly from Spano. There is no bright-line rule in

Illinois regarding the allowable length of an interrogation. Interrogations lasting six or eight

hours do not necessarily render a statement involuntary. People v. Ramey, 152 Ill. 2d 41, 58–59

(1992); People v. Terrell, 132 Ill. 2d 178, 201(1989). Green was fully informed of his rights and

never requested that the interrogation end or asked for an attorney. He was given several

opportunities, which he notes in the facts of his brief, to break for food and water as well as use

the restroom. Further, Green stated he was on his way to the police station to give a statement at

the time the minivan was seized. Thus, the start of the interrogation was in accord with his

alleged timeline. As the trial court noted, the interview length was extended because Green's

versions of events continued to change. Therefore, the duration of his custodial interview does

not render his statements involuntary or unreliable because there was no overbearing official

pressure or fatigue.

¶ 67 Each of Green's contentions fails on its own merit. Such failings, even when viewed

cumulatively, do not overcome the trial court's finding that the State met its burden of proving

that Green's custodial statements were given voluntarily and are reliable.

¶ 68 CONCLUSION

¶ 69 The trial court's ruling is affirmed. The investigatory stop leading to Green's arrest was a

valid Terry stop. Additionally, Green's custodial statements were given voluntarily and are

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 reliable and could properly be used against him.

¶ 70 Affirmed.

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