People v. Griffin

Filed 9/30/08 NO. 4-05-1016

IN THE APPELLATE COURT

OF ILLINOIS

FOURTH DISTRICT

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from
Plaintiff-Appellant, ) Circuit Court of
v. ) McLean County
LONA R. GRIFFIN, ) No. 01CF90
Defendant-Appellee. )
) Honorable
) Scott Drazewski,
) Judge Presiding.
_________________________________________________________________

JUSTICE STEIGMANN delivered the opinion of the court:

In June 2001, a jury convicted defendant, Lona R.

Griffin, of first degree murder of her infant son, Joseph. The

trial court later sentenced her to 25 years in prison. On

appeal, this court reversed defendant's conviction and remanded

for further proceedings. People v. Griffin, 351 Ill. App. 3d

838, 856, 815 N.E.2d 52, 66 (2004). On remand, defendant filed

two motions to suppress evidence, arguing that the police improp-

erly obtained statements that she made during two separate

custodial interrogations because they (1) did not first inform

her of her constitutional rights pursuant to the United States

Supreme Court's holding in Miranda v. Arizona, 384 U.S. 436, 16

L. Ed. 2d 694, 86 S. Ct. 1602 (1966), and (2) used the "question

first-warn later" technique repudiated by the Supreme Court in

Missouri v. Seibert, 542 U.S. 600, 159 L. Ed. 2d 643, 124 S. Ct.

2601 (2004). In October 2005, the court granted defendant's
motions.

The State appeals, arguing that the trial court erred

by granting defendant's motions to suppress evidence. We affirm.

I. BACKGROUND

In January 2001, the State charged defendant with first

degree murder, alleging that she knowingly caused Joseph's death

when she forcefully pressed his face and chest into her chest,

causing him to suffocate, knowing her acts created a strong

probability of death or great bodily harm (720 ILCS 5/9-1(a)(2)

(West 2000)). Following a June 2001 trial, a jury convicted

defendant of first degree murder and the trial court sentenced

her as earlier stated.

In August 2004, this court reversed defendant's convic-

tion and remanded the case for further proceedings. Specifi-

cally, this court concluded that the trial court erred by failing

to provide the appropriate jury instruction regarding the mental

state of knowledge in response to the jury's question regarding

the difference between knowledge and intent. Griffin, 351 Ill.

App. 3d at 855, 815 N.E.2d at 66.

In May 2005, defendant filed a motion to suppress

evidence, arguing that the police improperly obtained statements

she made during a custodial interrogation on January 24, 2001,

because they did not first inform her of her Miranda rights.

Later in May 2005, defendant filed a supplemental motion to

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suppress evidence, arguing that (1) statements she made during a

custodial interrogation on January 24, 2001, after being informed

of her Miranda rights, should be suppressed because the interro-

gating officers used the "question first-warn later" technique

repudiated by the Supreme Court in Seibert; and (2) statements

she made on January 25, 2001, should be suppressed because the

interrogating officers had not reinformed her of her Miranda

rights.

At the hearing on her motions to suppress evidence,

Bloomington police detective Clay Wheeler, a 14-year veteran,

testified that on January 23, 2001, he interviewed defendant in a

private waiting room in a Bloomington hospital. The tape-re-

corded interview lasted approximately 20 minutes and consisted of

questions concerning the circumstances surrounding Joseph's

injuries. Defendant willingly answered his questions. At the

conclusion of the interview, Wheeler left and returned to his

police station.

On January 24, 2001, Wheeler received notification that

Joseph had died. At Joseph's autopsy, the forensic pathologist

told Wheeler that Joseph’s cause of death was nonaccidental

asphyxia (suffocation). Specifically, Wheeler was informed that

Joseph had been deprived of oxygen for at least four minutes.

Wheeler then decided to reinterview defendant.

Wheeler went to defendant's home and asked her to

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accompany him to the police station to answer questions regarding

Joseph's death. Wheeler testified at the hearing that he wanted

to question defendant at the station because (1) it was a con-

trolled setting that would minimize outside interruption and (2)

it would afford him the opportunity to videotape the questioning

to ensure the details of their conversation were available and

accurate. Defendant agreed but wanted her father, who was in her

home at that time, to accompany her.

Wheeler transported defendant and her father to the

station in an unmarked police car. Upon their arrival, Wheeler

separated defendant from her father and ordered him to go to a

public waiting room. Defendant asked Wheeler if her father could

accompany her, but Wheeler refused to allow defendant's father to

be present during her interrogation.

At approximately 4:30 p.m., defendant was placed in an

interrogation room that had one small window located on the

door's entrance. Wheeler told defendant that he was going to

close the door for privacy but that if she needed anything, to

let him know. Wheeler then closed the interrogation room door,

which remained unlocked. However, Wheeler testified that defen-

dant was not free to roam the police station despite Wheeler's

statement to her that (1) she was not under arrest and (2) she

was free to leave at any time.

A short time later, Wheeler and at least one other

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detective began interrogating defendant. After interrogating her

for approximately 2 hours and 10 minutes, defendant stated that

she believed it was possible that she caused Joseph to stop

breathing. Wheeler then informed defendant of her rights pursu-

ant to the Supreme Court's holding in Miranda, 384 U.S. at 478-

79, 16 L. Ed. 2d at 726, 86 S. Ct. at 1630. Defendant said that

she understood her rights and waived them. Wheeler then immedi-

ately resumed interrogating defendant. At approximately 7:28

p.m., Wheeler concluded the interrogation and placed defendant

under arrest.

The next day, defendant, who was then in custody in the

McLean County jail, asked to speak with one of the detectives who

had questioned her. When Wheeler and another detective arrived

at the jail, defendant could not remember why she asked to speak

with them. Instead of formally informing defendant of her

Miranda rights, Wheeler reminded her that "she still had the

rights [he] had [previously] explained to her and [that] she did

not have to talk to [him]." Wheeler testified that defendant

responded that she understood her rights and that "she did not

mind talking to him." In response to Wheeler's questions,

defendant (1) stated that what she had told Wheeler the previous

day was true and (2) acknowledged that she had held Joseph close

to her chest and squeezed him until he stopped breathing.

Defendant testified that when Wheeler transported her

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and her father to the police station, she was not searched,

handcuffed, or told that she was under arrest. Defendant testi-

fied that during the police station interrogation on January 24,

2001, she (1) was not told that she was free to leave at any

time, (2) was asked the same questions that she had earlier

answered, (3) did not think she could stop answering questions,

(4) thought the interrogation room door was locked, and (5)

believed she was under arrest. Defendant also testified that

during the interrogation the next day at the jail, she could not

recall (1) whether Wheeler had informed her about her Miranda

rights or (2) what they spoke about.

Alvin A. House, a clinical psychologist, testified that

defendant had an intelligence quotient of approximately 70, which

fell within the borderline category of intellectual functioning.

House opined that based on the various tests he administered,

defendant had below-average mental abilities.

In addition to the testimony provided at defendant's

hearing on her motion to suppress evidence, the parties stipu-

lated to the admission of the videotaped interrogation conducted

on January 24, 2001, and the accompanying transcript.

In October 2005, the trial court found that, with

regard to the January 24, 2001, interrogation, defendant (1)

knowingly and intelligently waived her Miranda rights, (2) was

subjected to a custodial interrogation prior to being informed of

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her Miranda rights, and (3) was subjected to an improper custo-

dial interrogation in violation of Seibert, which negated defen-

dant's Miranda waiver. In addition, the court also found that

defendant's statements on January 25, 2001, were inadmissible

because she was not reinformed of her Miranda rights prior to

being subjected to further police interrogation. Therefore, the

court entered an order suppressing defendant's statements made on

January 24 and 25, 2001.

This appeal followed.

II. THE STATE'S CLAIM THAT THE TRIAL COURT ERRED BY
GRANTING DEFENDANT'S MOTION TO SUPPRESS EVIDENCE

The question before this court is whether defendant's

statements in response to police questioning on January 24 and

25, 2001, should be suppressed. The State argues that the trial

court erred by granting defendant's motions to suppress evidence.

Specifically, the State contends that because (1) defendant was

not in custody prior to being informed of her Miranda rights and

(2) defendant's postwarning statements were not obtained in

violation of the Supreme Court's holding in Seibert, her January

24, 2001, statements are admissible. The State also contends

that officers were not required to reinform defendant of her

Miranda rights on January 25, 2001, because there was no substan-

tial probability that defendant's January 24, 2001, Miranda

warnings were so stale and remote that defendant was unaware of

her rights at the time of the January 25, 2001, interrogation.

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Thus, the State asserts that defendant's January 25, 2001,

statements are also admissible. We address the State's conten-

tions in turn.

A. Standard of Review

In People v. Slater, 228 Ill. 2d 137, 149, 886 N.E.2d

986, 994 (2008), the Supreme Court of Illinois recently stated

the applicable standard of review in determining the appropriate-

ness of the trial court's ruling on a motion to suppress as

follows:

"In determining whether a trial court

has properly ruled on a motion to suppress,

findings of fact and credibility determina-

tions made by the trial court are accorded

great deference and will be reversed only if

they are against the manifest weight of the

evidence. [Citations.] We review de novo,

however, the ultimate question posed by the

legal challenge to the trial court's ruling

on a suppression motion. [Citation.] ***

Where a defendant challenges the admissibil-

ity of a confession through a motion to sup-

press, the State bears the burden of proving

the confession was voluntary by a preponder-

ance of the evidence. [Citations.]"

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 B. Custodial Interrogation

1. The Definition of Custodial Interrogation

In Miranda, 384 U.S. at 478-79, 16 L. Ed. 2d at 726, 86

S. Ct. at 1630, the Supreme Court held the following:

"[W]hen an individual is taken into

custody or otherwise deprived of his freedom

by the authorities in any significant way and

is subjected to questioning, the privilege

against self-incrimination is jeopardized.

*** He must be warned prior to any question-

ing that he has the right to remain silent,

that anything he says can be used against him

in a court of law, that he has the right to

the presence of an attorney, and that if he

cannot afford an attorney[,] one will be

appointed for him prior to any questioning if

he so desires."

The Supreme Court defined custodial interrogation as

"questioning initiated by law enforcement officers after a person

has been taken into custody or otherwise deprived of his freedom

of action in any significant way." Miranda, 384 U.S. at 444, 16

L. Ed. 2d at 706, 86 S. Ct. at 1612. Thus, "'Miranda warnings

are required only where there has been such a restriction on a

person's freedom as to render him "in custody." It was that sort

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of coercive environment to which Miranda by its terms was made

applicable, and to which it is limited.'" (Emphasis omitted.)

People v. Hetzel, 181 Ill. App. 3d 85, 92, 536 N.E.2d 909, 913

(1989), quoting Oregon v. Mathiason, 429 U.S. 492, 495, 50 L. Ed.

2d 714, 719, 97 S. Ct. 711, 714 (1977).

2. Factors That Determine Whether an
Interrogation Is Custodial

"The determination of whether a defendant is 'in

custody' for Miranda purposes involves '[t]wo discrete inquiries

***: first, what were the circumstances surrounding the interro-

gation; and second, given those circumstances, would a reasonable

person have felt he or she was not at liberty to terminate the

interrogation and leave.'" People v. Braggs, 209 Ill. 2d 492,

505-06, 810 N.E.2d 472, 481 (2003), quoting Thompson v. Keohane,

516 U.S. 99, 112, 133 L. Ed. 2d 383, 394, 116 S. Ct. 457, 465

(1995).

When examining the circumstances surrounding the

interrogation, the supreme court has held that the following

factors are relevant in determining whether a statement was made

in a custodial setting:

"(1) the location, time, length, mood, and

mode of the questioning; (2) the number of

police officers present during the interroga-

tion; (3) the presence or absence of family

and friends of the individual; (4) any indi-

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 cia of a formal arrest procedure, such as the

show of weapons or force, physical restraint,

booking[,] or fingerprinting; (5) the manner

by which the individual arrived at the place

of questioning; and (6) the age, intelli-

gence, and mental makeup of the accused."

Slater, 228 Ill. 2d at 150, 886 N.E.2d at

995.

"Regarding the reasonable-person portion of the custody

inquiry, 'the accepted test is what a reasonable person, innocent

of any crime, would have thought had he or she been in the

defendant's shoes.'" People v. Croom, 379 Ill. App. 3d 341, 349,

883 N.E.2d 681, 688 (2008), quoting Braggs, 209 Ill. 2d at 506,

810 N.E.2d at 482.

Although police officers conducting an interrogation

may tell a suspect that she is not under arrest and is therefore

free to leave at any time--as the State claims occurred here--a

suspect may still reasonably perceive that she was in custody.

People v. Gorman, 207 Ill. App. 3d 461, 475, 565 N.E.2d 1349,

1358 (1991). Just as "no talismanic incantation [is] required to

satisfy [Miranda's] strictures" (California v. Prysock, 453 U.S.

355, 359, 69 L. Ed. 2d 696, 701, 101 S. Ct. 2806, 2809 (1981)),

an officer's statement to a suspect that she is free to leave at

any time--thus, implying that she is in control although she sits

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in an interrogation room located inside the police station,

staring at two imposing police officers who doubt her answers to

their questions--similarly holds no magical qualities and may be

rendered nugatory by the circumstances in which it was said.

Indeed, any control the police exercised over the suspect has

historically been viewed by courts as inconsistent with the

contention that the police told her she was free to go. See

Gorman, 207 Ill. App. 3d at 475, 565 N.E.2d at 1358 (mentioning

cases where the court found suspects to be in custody during

their interrogations because the police exercised control over

them at the police station).

3. Factors That Some Courts Have Discussed in Determining
Whether an Interrogation Is Custodial

Some courts have discussed the intent, knowledge, or

focus of the police at the time of a suspect's interrogation as

valid factors in determining whether the defendant was in custody

for Miranda purposes. However, in People v. Goyer, 265 Ill. App.

3d 160, 166, 638 N.E.2d 390, 394 (1994), this court clarified

"the very limited relevancy of a police officer's intent, knowl-

edge, or focus" with regard to custodial interrogations. The

officer's private thoughts are irrelevant because the officer's

undisclosed knowledge, suspicion, intent, focus, subjective view,

or thoughts can neither influence the suspect nor affect the

coercive atmosphere of the interrogation. Goyer, 265 Ill. App.

3d at 167, 638 N.E.2d at 395.

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 In so clarifying, we reaffirmed our holding in Gorman

that "if undisclosed, an officer's subjective thoughts and

beliefs are irrelevant to the assessment whether the defendant is

in custody." Goyer, 265 Ill. App. 3d at 167, 638 N.E.2d at 395.

See Stansbury v. California, 511 U.S. 318, 323, 128 L. Ed. 2d

293, 298, 114 S. Ct. 1526, 1529 (1994) ("initial determination of

custody depends on the objective circumstances of the interroga-

tion, not on the subjective views harbored by either the interro-

gating officers or the person being questioned"). Thus, "[t]he

intent of police officers is relevant only to the extent that it

may assist the trier of fact in determining whether the police,

through their verbal and nonverbal conduct, created a coercive

atmosphere requiring the Miranda warnings." Gorman, 207 Ill.

App. 3d at 473, 565 N.E.2d at 1356.

We find support for reaffirming our holding in Gorman

in the supreme court's recent decision in Slater, 228 Ill. 2d at

150,886 N.E.2d at 995, which omitted the intent, knowledge, or

focus of the police at the time of a suspect's interrogation from

the relevant factors the supreme court listed that determine

whether a statement was made in a custodial setting. We do not

view the supreme court's omission as inadvertent. Instead, we

conclude the supreme court means what it said--namely that a

police officer's focus on a suspect is not a relevant factor for

Miranda purposes in determining whether a statement was made in a

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custodial setting.

Nonetheless, we acknowledge the supreme court's even

more recent decision in People v. Lopez, 229 Ill. 2d 322, 346,

892 N.E.2d 1047, 1061 (2008), where the court wrote the follow-

ing:

"In [People v.] Melock[, 149 Ill. 2d 423,

436-37, 599 N.E.2d 941, 946 (1992)], we con-

sidered several factors when determining

whether a reasonable person would not have

felt free to leave, such as: the intent of

the officer; the understanding of the defen-

dant; whether defendant was told he was free

to leave or that he was under arrest; whether

the defendant would have been restrained if

he attempted to leave; the length of the

interrogation; and whether Miranda warnings

were given." (Emphasis added.)

Because the decision of the supreme court in Lopez

contains no indication that it was disregarding what it said

three months earlier in Slater about factors to be considered

when determining whether a person was in custody, we will con-

tinue to follow its holding in Slater, which is more consistent

with the teaching of the United States Supreme Court in Stansbury

on this subject.

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 4. The Interrogation in This Case

The State first contends that because defendant was not

in custody prior to being informed of her Miranda rights, her

prewarning statements are admissible. We disagree.

In this case, the trial court made the following

findings in determining that defendant was subjected to a custo-

dial interrogation prior to being informed of her Miranda rights:

(1) the officers transported defendant to the police station at

(a) their request and (b) a date and time they chose; (2) the

officers did not allow defendant's father to be present during

the interrogation; (3) defendant was required to first ask for

police assistance prior to engaging in an activity that required

her to leave the interrogation room; (4) when the officers left

defendant alone, they closed the interrogation room door; (5) the

interrogation room was windowless (the court later amended its

findings to reflect that a small window was located on the

interrogation room door); (6) the officers situated themselves

between defendant and the interrogation room door; (7) defendant

was 20 years old, had below-average intelligence, and was inexpe-

rienced with the criminal justice system; (8) defendant was the

focal point of the investigation; and (9) before informing

defendant of her Miranda rights, the officers were openly skepti-

cal of her answers and "exhorted, enticed, and cajoled her until

they [received] the answers that they were seeking."

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 Our review of the record reveals that the trial court's

findings are not against the manifest weight of the evidence. In

so concluding, we note that the court considered the police

officers' undisclosed knowledge and focus in determining whether

defendant was in custody for Miranda purposes. Specifically, the

court noted that defendant was the (1) focal point of the inves-

tigation because the officers were aware of the cause of Joseph's

death and (2) only person with Joseph at the time of his death.

For the reasons we mentioned earlier, the court should not have

considered these factors. However, given that the court appro-

priately considered the other factors in finding defendant was

subjected to a custodial interrogation prior to being informed of

her Miranda rights, we adhere to our conclusion that the court's

determination was not against the manifest weight of the evi-

dence.

We find support for our conclusion by reviewing the

circumstances at the police station. As earlier stated, the

interrogating officers claimed that they told defendant she was

free to leave the police station at any time. If this statement

were in fact true, it meant that defendant had the maximum amount

of control over the circumstances of her interrogation. After

all, if she had the power to end the questioning whenever she

wished and to simply walk away, then setting reasonable condi-

tions short of walking away should also be in her power. How-

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ever, defendant attempted to exercise that lesser control and was

rebuffed--that is, she requested that her father be present

during the interrogations and the officers declined her request.

By doing so, the officers betrayed their earlier statement to

her, implying that she was in charge, and sent a clear message

that they were in control. Thus, their actions were inconsistent

with their statement to defendant and support the trial court's

finding that she was in custody.

5. Epilogue

a. The Defendant's Burden of Production

As earlier stated, for the safeguards announced in

Miranda to apply, the determination that a defendant was in

custody requires an objective analysis of the circumstances

surrounding the interrogation from the point of view of a reason-

able person in the suspect's position, innocent of any crime.

However, "[w]ithout affirmative evidence that the defendant

believed he was in custody, the trial court need not consider

what a reasonable person in the same position would have believed

and can simply deny the motion to suppress." Goyer, 265 Ill.

App. 3d at 164, 638 N.E.2d at 393.

In Goyer, 265 Ill. App. 3d at 165, 638 N.E.2d at 393,

this court posed the following hypothetical to clarify the issue:

would the trial court need to consider what a reasonable person

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in the defendant's circumstances would believe if the defendant

testified that he did not believe he was in custody, but rather,

believed he was free to leave at any time? In responding that

the trial court would not, this court held that

"when a defendant makes a motion to suppress

his statements because he was in custody and

not advised of his Miranda rights, before the

trial court can conclude that defendant was

in custody, it must first find that (1) de-

fendant subjectively believed he was in cus-

tody, and (2) a reasonable person in defen-

dant's position, innocent of any crime, would

also believe himself to be in custody. [Ci-

tation.] Thus, a defendant bringing such a

motion to suppress bears the burden of pro-

duction to show that he subjectively believed

himself to be in custody during the police

questioning." Goyer, 265 Ill. App. 3d at

165, 638 N.E.2d at 393-94.

In many cases, this issue is not argued because a

defendant typically testifies--as did defendant in this case--

that she believed she was in custody. Regardless, we reaffirm

our holding in Goyer that a defendant who seeks to suppress his

statements on the ground that he was in custody during the police

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interrogation must first testify that he did in fact believe he

was in custody during the interrogation.

b. Police Station Interrogations

Initially, we note that the parties in this case did

not argue--and correctly so--that Wheeler's interview of defen-

dant conducted at the hospital on January 23, 2001, was a custo-

dial interrogation. This may be because the coercive environment

and restriction on defendant's freedom so important to a finding

that she was in custody was totally absent in analyzing the

circumstances surrounding that interview. However, the same is

not true of the interrogation the police conducted the next day

inside the police station.

Over 17 years ago, this court addressed the risks that

police officers take in conducting what they claim to be non-

custodial interrogations at a police station. In Gorman, 207

Ill. App. 3d at 470, 565 N.E.2d at 1355, this court stated that

"[w]henever the police choose to conduct 'non[]custodial interro-

gations' at the police station, there is a substantial risk that

a court subsequently will disagree that the circumstances were

noncustodial." See People v. Wheeler, 281 Ill. App. 3d 447, 456,

667 N.E.2d 158, 164 (1996) (where the court recognized that when

"police select a police station as the location for questioning a

suspect, this setting naturally supports the argument that the

suspect was subject to a custodial interrogation").

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 This risk arises because a defendant's inevitable

claim--as in this case--that his statements were the result of a

custodial interrogation, will become an issue for a court to

resolve based on the factors previously discussed. Thus, "[t]he

placement of furniture, the size of the room, the presence of

armed officers, whether doors were opened or closed (and if

closed, whether they were locked), the transport of the suspect

into the depths of a building where ingress and egress is typi-

cally controlled by security measures," are all circumstances

surrounding the interrogation that might give support to a

defendant's claim that he did not believe he was free to leave.

Gorman, 207 Ill. App. 3d at 471, 565 N.E.2d at 1355.

As we stated in Gorman, if interrogating officers truly

desire to minimize this risk, they should create a noncustodial

interrogation environment by conducting their interrogations

outside of the police station, such as at "the local Burger King

restaurant, a nearby park, the suspect's own residence, or in any

location of the suspect's choosing." (Emphasis in original.)

Gorman, 207 Ill. App. 3d at 471, 565 N.E.2d at 1355. Thus, we

reemphasize that "'Miranda warnings are required only where there

has been such a restriction on a person's freedom as to render

him "in custody."'" Gorman, 207 Ill. App. 3d at 470, 565 N.E.2d

at 1354, quoting Mathiason, 429 U.S. at 495, 50 L. Ed. 2d at 719,

97 S. Ct. at 714. If the police wish to interrogate a suspect

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without first informing him of his Miranda rights, they must

ensure that they do not do so in a custodial setting.

C. Seibert and the "Question First-Warn Later" Technique

1. The Supreme Court's Decision in Seibert

In Seibert, 542 U.S. at 617, 159 L. Ed. 2d at 658, 124

S. Ct. at 2613 (plurality opinion of Souter, J., joined by

Stevens, Ginsberg, and Breyer, JJ.), the Supreme Court held that

a suspect's incriminating statements made after police had

administered Miranda warnings were inadmissible because the

officer's interrogation technique rendered the Miranda warnings

ineffective. The statements at issue in Seibert had been ob-

tained by the deliberate use of the "question first-warn later"

technique--that is, where the interrogating officer strategically

withholds Miranda warnings from a suspect until he makes incrimi-

nating statements and then, after obtaining a waiver of his

Miranda rights, questions the suspect again by confronting him

with his prewarning statements. Seibert, 542 U.S. at 604, 159 L.

Ed. 2d at 650, 124 S. Ct. at 2605.

The Seibert plurality reasoned that the employment of

this technique frustrated the intent of Miranda because "[u]pon

hearing warnings only in the aftermath of interrogation and just

after making a confession, a suspect would hardly think he had a

genuine right to remain silent, let alone persist in so believ-

ing[,] once the police began to lead him over the same ground

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again." Seibert, 542 U.S. at 613, 159 L. Ed. 2d at 655-56, 124

S. Ct. at 2611.

Thus, to determine whether Miranda warnings delivered

while in the midst of a custodial interrogation could effectively

advise the suspect of his basic constitutional rights, the

plurality advocated evaluating the (1) completeness and detail of

the prewarning interrogation, (2) overlapping content of the two

statements, (3) timing and setting of the first and the second

interrogations, (4) continuity of police personnel, and (5)

extent to which the interrogator's questions treated the second

round of interrogation as continuous with the first. Seibert,

542 U.S. at 615, 159 L. Ed. 2d at 657, 124 S. Ct. at 2612.

Concurring in the judgment, Justice Kennedy narrowed

the approach taken by the plurality opinion by stating that "[i]f

the deliberate two-step strategy has been used, postwarning

statements that are related to the substance of prewarning

statements must be excluded unless curative measures are taken

before the postwarning statement is made." Seibert, 542 U.S. at

622, 159 L. Ed. 2d at 661, 124 S. Ct. at 2616 (Kennedy, J.,

concurring). Such "curative measures" could include "a substan-

tial break in time and circumstances between the prewarning

statement and the Miranda warning," or "an additional warning

that explains the likely inadmissibility of the prewarning

custodial statement." Seibert, 542 U.S. at 622, 159 L. Ed. 2d at

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661, 124 S. Ct. at 2616 (Kennedy, J., concurring).

2. Application of Seibert to Defendant's
Postwarning Statements

The State contends that defendant's postwarning state-

ments on January 24, 2001, are admissible because they were not

obtained in violation of the Supreme Court's holding in Seibert.

We disagree.

In this case, the trial court found--as in Seibert--

that (1) the officers' questioning during the unwarned portion of

the interrogation was systematic, exhaustive, and managed with

psychological skill; (2) prior to being informed of her Miranda

rights, little, if any, incriminating evidence was left unsaid by

defendant; (3) the officers did not advise defendant that her

prewarning statements could not be used against her; (4) the

officers did not dispel the oddity of warning defendant that she

had the right to remain silent and right to counsel after they

led her through a systematic and exhaustive interrogation; (5)

the postwarning questioning immediately followed the Miranda

warnings; (6) the police officers' postwarning questions treated

the postwarning portion of the interrogation as a continuation of

the prewarning portion; (7) it was clear that the officer's

strategy was meant to undermine defendant's Miranda warnings; and

(8) defendant's Miranda warnings were invalidated by the offi-

cers' use of the "question first-warn later" technique.

Our review of the record reveals that the trial court

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correctly assessed the time line, content, and context of defen-

dant's custodial interrogation in determining the deliberateness

of the officers' conduct. Thus, given our standard of review, we

conclude that the court's findings are not against the manifest

weight of the evidence.

D. The State's Claim That the Trial Court Erred by Suppressing
Defendant's January 25, 2001, Statements

Last, the State contends that the officers were not

required to reinform defendant of her Miranda rights on January

25, 2001. Specifically, the State asserts that because there was

no substantial probability that defendant's January 24, 2001,

Miranda warnings were so stale and remote that defendant was

unaware of her rights at the time of the January 25, 2001,

interrogation, those warnings did not need to be repeated. We

disagree.

Here, the trial court found that because defendant's

January 24, 2001, Miranda waiver was invalidated by the officers'

deliberate use of the "question first-warn later" technique

repudiated by the Supreme Court in Seibert, defendant was "de-

prived of the knowledge essential to making a free and rational

choice" regarding a waiver of her Miranda rights on January 25,

2001.

Because we earlier concluded that the trial court's

findings that defendant's January 24, 2001, Miranda waiver was

invalidated was not against the manifest weight of the evidence,

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we reject the State’s claim. In other words, given the court's

findings that the Miranda warnings defendant received on January

24, 2001, were rendered nugatory because of the Seibert violation

(which we affirm), this record no longer contains any valid

Miranda warnings that the State may claim were still valid the

next day. Therefore, we need not address whether the officers

would have been required to reinform defendant of her Miranda

rights prior to her January 25, 2005, interrogation.

In closing, we commend the trial court for the care and

consideration it took in this case. Its findings demonstrated a

clear understanding of the facts, which this court found to be

especially helpful.

III. CONCLUSION

For the reasons stated, we affirm the trial court's

judgment.

Affirmed.

APPLETON, P.J., and McCULLOUGH, J., concur.

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