People v. Washington

SECOND DIVISION
January 24, 2006

No. 1-02-2893

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
) Circuit Court of
Plaintiff-Appellee, ) Cook County.
)
v. ) No. 00 CR 26901
)
RAMONA WASHINGTON, ) The Honorable
) James B. Linn,
Defendant-Appellant. ) Judge Presiding.

PRESIDING JUSTICE GARCIA delivered the opinion of the court.

In August 2002, a jury found the defendant, Ramona

Washington, guilty of first-degree murder (720 ILCS 5/9-1(a)(1)
(West 2000)). The trial court sentenced the defendant to a

prison term of 20 years. The defendant appeals her conviction,

raising four issues, only two of which we address: (1) whether

the trial court erred in admitting evidence regarding the

scheduled polygraph examination and (2) whether the trial court

erred in denying her motion to quash her arrest and suppress

statements. For the reasons that follow, we reverse the

defendant's conviction and remand the case for a new trial.

I. BACKGROUND
On December 6, 2000, the defendant found the victim, 78-

year-old Joseph Valladay, dead in his bedroom in the apartment
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they shared. The defendant called 911 from a neighbor's house

and waited with her friend, Ena Mills, in the gangway for

emergency personnel to arrive. The defendant and the victim had

been living together in a basement apartment for eight or nine

months. In November 2000, they had been informed by the new

owners of their building that they would have to vacate their

apartment by early December. The new owners then disconnected

their lights, heat, and hot water.

Detectives Catherine Rolewicz and Mark O'Connor were

assigned to investigate the victim's death. When they arrived on

the scene, they spoke with the defendant outside the apartment.

The defendant identified herself as the victim's granddaughter

and told the detectives that she found the victim dead in his

bedroom that afternoon. Rolewicz testified that the apartment

did not have heat or electricity; it was dark and officers had to

use flashlights to investigate.

Detective Rolewicz found the victim in his bedroom, lying on

his bed with his feet on the floor. Rolewicz observed bruising

and lacerations on the victim's head and face that appeared to be

several days old. She also observed blood in the victim's room

and on the door jamb, and stains on the wall that appeared to

have been wiped down. Behind the apartment's front door, she

observed a wooden two-by-four board with brownish stains that

appeared to be blood.

The parties stipulated that swabs of blood taken from the

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two-by-four board, the door jamb, and the hallway matched the

victim's DNA, and a swab taken from the wall near the bedroom

door matched the defendant's DNA.

After observing the victim, Detective Rolewicz spoke with

the defendant in the apartment. Rolewicz asked the defendant

about the victim's injuries and the defendant informed her that

the victim had been robbed four or five days earlier while

walking home from a store on 63rd Street. The detectives then

asked the defendant and Mills to accompany them to the Area 2

police station for additional questioning. At 6:30 p.m., the

defendant was driven in a marked police car to Area 2.

During the hearing on the defendant's motion to quash

arrest, Detective O'Connor testified that after observing the

victim and his apartment, he believed that there was a

possibility that the victim was beaten inside the apartment and

did not sustain his injuries in a robbery. O'Connor testified

that based on that possibility, he asked the defendant to

accompany him to Area 2 to continue the investigation. He

testified that the defendant was cooperating in the

investigation.

At 10:00 p.m., Detective O'Connor interviewed the defendant

in a conference room and asked her about the blood in the

apartment. She indicated that she did not notice the blood and

that she did not try to wash the walls. O'Connor then sought to

verify the defendant's contention that the victim was robbed

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several days earlier. According to O'Connor, he decided to keep

the defendant at the police station until he could verify her

statements. At some point after O'Connor interviewed the

defendant, she was placed in an interview room where she slept on

a hard bench. The interview room was locked for at least part of

the time that the defendant was in the room.

At 9:00 a.m., on December 7, 2000, Detective O'Connor spoke

to the defendant again and she agreed to take a polygraph test.

She remained in the interview room until 5:15 p.m., when she was

transported by Detective James Washburn to the polygraph unit at

Homan Square.

At trial, Detective Washburn testified that he drove the

defendant to Homan Square in a marked police vehicle. When

Washburn first got into the car, he introduced himself and

advised the defendant of her rights under Miranda v. Arizona, 384
U.S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602 (1966). Washburn

testified that he and the defendant made small talk about the

weather and snow storm. The defendant then asked him about the

polygraph examination. After he explained how the exam worked

and what it measured, the defendant told Washburn "I did it."

Washburn asked what she did, and she replied that she killed the

victim. She stated that she and the victim had argued about

moving to a new apartment, the victim grabbed or hit her, she got

away, grabbed the board, and hit him with it. Washburn then

placed the defendant under arrest.

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After they arrived at Homan Square, Detective Washburn told

Detective O'Connor, who had been driving the defendant's friend

Mills to the same location, about the defendant's statement. The

detectives then returned the defendant to Area 2 without

administering the polygraph examination. O'Connor and Washburn

interviewed the defendant at 7:00 p.m., at Area 2. After they

gave the defendant her Miranda warnings, she relayed much of the

same information that she had told Washburn earlier. In

addition, she stated that the victim tried to grab her around the

throat and that they fell to the ground. While they were on the

ground, the defendant punched the victim four times. The victim

tried to punch the defendant when she grabbed the board. The

defendant told the detectives that she struck the victim several

times and that he fell to the ground. She then helped him up and

cleaned him off. She also tried to clean the blood off of the

walls. She told the officers that she did not mean to hurt the

victim.

At 8:30 p.m., Assistant State's Attorney Scott Herbert

interviewed the defendant with Detective Washburn. In addition

to relating the same facts that she told Detectives O'Connor and

Washburn, the defendant told Herbert that she and the victim were

arguing about getting a new apartment and that he turned his back

and walked away from her. Herbert asked the defendant about

marks on her neck and she stated that the victim did not make

them. The defendant's statement was not memorialized that night

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because the medical examiner's office had not definitively

determined the cause of death. The medical examiner was waiting

on additional information from the police investigation before

doing so.

On December 8, 2000, the medical examiner ruled the victim's

death a homicide. Doctor Aldo Fusaro testified that the victim

died of multiple blunt force injuries due to assault. The victim

had multiple broken ribs that hampered his breathing. The victim

also had emphysema, which contributed to his death.

Assistant State's Attorney Louis Longhitano testified that

he interviewed the defendant at 4:25 p.m., on December 8, 2000.

After he spoke with the defendant, he interviewed Mills and took

her statement. At 7:00 p.m., Longhitano interviewed the

defendant again and specifically asked how she had been treated

and whether anyone had threatened her or made promises to her to

get her to make the statements. The defendant stated that no one

had threatened her or promised her anything in exchange for her

statement. The defendant then agreed to make a videotaped

statement.

At 7:45 p.m., the defendant made a videotaped statement,

which was played to the jury. Longhitano testified that the

answers the defendant gave in the video were essentially the same

as those she had given in the earlier interview. However, the

defendant initially told him that the victim's labored breathing

was caused by the injuries he suffered during their fight, but on

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the videotape, the defendant attributed the labored breathing to

the victim's asthma.

The defendant testified in her own defense. She testified

that she was 36 years old and had been a prostitute for more than

20 years. The defendant met the victim in early 2000. The

victim invited the defendant to live with him in his apartment.

The defendant testified that in exchange for a place to live, she

had sex with the victim, cooked for him, and cleaned his

apartment.

In November 2000, the building that the victim and the

defendant had been living in was sold and the new owners turned

off the hot water, heat, and electricity. The defendant and

victim were told that they had to be out of their apartment by

the first week in December. During that first week, the

defendant tried to talk to the victim about moving, but the

victim told her "[w]hatever" and walked away from her. She

testified that she grabbed him and told him to listen to her. He

turned around, started swearing at her, and hit her in the face.

He came toward her and the defendant started punching him. They

fell to the floor and continued to swing at one another. When

the defendant had the opportunity, she grabbed the board and hit

the victim four or five times. She testified that she was not

trying to kill the victim.

The defendant realized that she should not have been

fighting with the victim and stopped hitting him. She told him

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that she was sorry and helped him to his bed. The victim told

her that everything would be fine and she tried to clean the

blood off of the victim's face. She and the victim then talked

for a little while.

The next morning, the victim was sitting on his bed when the

defendant got up. She fixed him something to eat and went back

to bed. The victim did not leave the apartment over the next few

days and the defendant testified that she continued to care for

him. On December 6, 2000, the victim did not respond when the

defendant called to him. She went to his room and found him

deceased in his bedroom. The defendant called 911 from a

neighbor's house. The defendant initially told the police that

she was the victim's granddaughter because she was not proud of

the relationship that they had. She also testified that the

victim told her that he had been robbed a couple of days before

their fight.

After hearing all of the evidence, the jury found the

defendant guilty of first-degree murder. The trial court denied

the defendant's motion for a new trial and sentenced her to a

prison term of 20 years. This appeal followed.

II. ANALYSIS
On appeal, the defendant argues: (1) the State's multiple

references to her scheduled polygraph examination denied her a

fair trial; (2) the trial court erred in denying her motion to

quash arrest and suppress statements; (3) during closing

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argument, the State misstated the evidence and made inaccurate

and prejudicial statements designed to inflame the passions of

the jury; and (4) her mittimus does not accurately reflect the

proper credit for the number of days served.

A. References to Polygraph Examination

The defendant argues that she was denied a fair trial when

the trial court allowed the State to make multiple references to

a polygraph examination the defendant was scheduled to take

before she made her inculpatory statement. The defendant

contends that the State used the evidence, not to respond to any

allegations that her statement was coerced, but simply to bolster

her inculpatory statement. The State maintains that the evidence

was properly admitted because "the testimony was minimal and was

necessary to allow the jury to determine whether or not the

statement was voluntarily made." The court permitted the

references for the stated purpose of showing the circumstances

under which the defendant made the statement. The court

explained that "the fact that [the defendant] knew that she was

on her way to the polygraph and then she started saying things

different to law enforcement is relevant and it's much more

probative than prejudicial."

During its case-in-chief, the State elicited testimony from

Detective Washburn that the police had scheduled a polygraph

examination appointment for the defendant and that he drove her

to the testing facility for the appointment. He testified that

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en route, the defendant asked him several questions about the

polygraph examination. He explained to her that the polygraph

examiner would bring her into a room and hook her up to certain

equipment used to perform the examination. The defendant also

asked him what the equipment did. When Washburn started to

testify as to his response, the trial court called a sidebar.

During the sidebar, the court reiterated that evidence concerning

the polygraph examination was limited to the fact that the

defendant was on her way to a polygraph examination when she made

an inculpatory statement, and the State could not elicit

testimony that explained to the jury what the polygraph equipment

did. Washburn never testified as to what a polygraph examination

did or that the defendant took the examination.

The State again elicited testimony about the scheduled

polygraph examination when cross-examining the defendant. The

State contends that the evidence was used to impeach the

defendant and to establish that she had lied to police before she

made her inculpatory statement. After the State asked the

defendant whether she told the police that she was the victim's

granddaughter or whether she noticed blood in the apartment, the

State asked, "And certainly you didn't tell the police or anyone

about beating [the victim] with that stick until they said,

'Let's take you for a lie detector test'; is that correct?" The

State later asked the defendant if she told the police that she

hit the victim with the board before she was on her way to the

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polygraph examination.

During closing arguments, the State argued that the

defendant made her inculpatory statement while en route to the

polygraph examination because at that point she "starts thinking

this lie's not going to make it."

The general rule in Illinois is to preclude the introduction

of evidence regarding polygraph examinations and their results

because (1) the evidence is not sufficiently reliable, and (2)

the results may be taken as determinative of guilt or innocence

despite their lack of reliability. People v. Jefferson, 184 Ill.
2d 486, 492-93, 705 N.E.2d 56 (1998). Our supreme court has held

that the prejudicial effect of admitting such evidence

substantially outweighs its probative value, and that admission

of the evidence constitutes "'an unwarranted intrusion' into the

trier of fact's role in determining the credibility of the

witnesses." People v. Jackson, 202 Ill. 2d 361, 368, 781 N.E.2d

278 (2002), quoting People v. Baynes, 88 Ill. 2d 225, 244, 430
N.E.2d 1070 (1981). This evidence, however, may be admitted for

the limited purposes of rebutting a defendant's claim that his

confession was coerced or, more generally, "'when the issue is

the voluntariness of a confession.'" Jefferson, 184 Ill. 2d at

493, quoting People v. Triplett, 37 Ill. 2d 234, 239, 226 N.E.2d

30 (1967).

In Jefferson, the supreme court held that evidence of a
scheduled polygraph examination was properly admitted at trial

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where the defendant claimed that her inculpatory statement was

coerced. Jefferson, 184 Ill. 2d at 496. The defendant claimed

that she made an inculpatory statement because the police

promised that, in consideration for the statement, she would be

released from custody and would be able to see her family. The

supreme court held that evidence of the defendant's scheduled

polygraph examination and her decision to confess before the

examination was relevant and admissible to rebut the defendant's

allegations of coercion. Jefferson, 184 Ill. 2d at 496-97.
In contrast, in Jackson, the State introduced evidence that

a witness had been confronted with the results of his polygraph

test when he made an inculpatory statement against the defendant.

Although the witness testified that the statement was not

truthful, he did not assert that it was procured by coercion

until after the State questioned him about the polygraph

examination. The State maintained that the evidence was

admissible to show the course of conduct leading to the witness's

statement; the trial court agreed and admitted the statement

"'for a limited purpose.'" Jackson, 202 Ill. 2d at 365.
The supreme court distinguished Jefferson and held that the

polygraph evidence served no legal purpose because, when it was

introduced, there was no evidence or claim by the witness that

the statement was coerced. Jackson, 202 Ill. 2d at 370-71.

While the evidence in Jefferson was used as a "shield against the
defendant's allegation of police misconduct," in Jackson, "the

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State attempted to use the evidence affirmatively as a sword to

advance its own case." Jackson, 202 Ill. 2d at 371. The court

held that it would "not condone the anticipatory introduction of

polygraph evidence by the State." Jackson, 202 Ill. 2d at 372.

This case is more similar to Jackson than Jefferson. In

this case, the State first elicited testimony concerning the

defendant's pending polygraph examination from Detective Washburn

during its case-in-chief. Prior to his testimony, the defendant

did not make any allegations that her statement was coerced or

unreliable. Although the State argues in its brief that it had a

duty to prove the defendant's statement was voluntary and that

the evidence was used to rebut the defendant's affirmative

defense of self-defense, this evidence, when it was admitted,

"served no proper legal purpose." See Jackson, 202 Ill. 2d at
371. To uphold the State's contention that the polygraph

evidence was properly admitted in its case-in-chief to meet its

burden of proving the voluntariness of the defendant's statement

would nullify the general rule in Illinois barring such evidence

as this argument could almost always be made. See Jefferson, 184
Ill. 2d at 492.

Further, we agree with the defendant that the State sought

to bolster the validity of her inculpatory statement with this

evidence. The State's questions during cross-examination and

comments during closing argument suggest that the defendant's

statement must be reliable because she was on her way to take a

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lie detector test when she made it and her earlier "lie's not

going to make it." The State's suggestion of reliability of the

defendant's statement based on her anticipated failure of the

polygraph test is an improper purpose for the admission of

polygraph evidence. See People v. Baynes, 88 Ill. 2d 225, 244,

430 N.E.2d 1070 (1981) (result of polygraph test not reliable);

People v. Taylor, 101 Ill. 2d 377, 393, 462 N.E.2d 478 (1984)

(knowledge of media reports regarding performance of "clear[ed]"

codefendant on a lie detector test tainted prospective jurors).

Although the trial court employed a balancing test in

deciding whether to admit the polygraph evidence, it did so

prematurely. Before polygraph evidence may be admitted as more

probative than prejudicial, the State must first establish that

the voluntariness of the defendant's alleged confession is at

issue. See Triplett, 37 Ill. 2d at 239; Jefferson, 184 Ill. 2d
at 495 (the State properly permitted "to rebut the defendant's

claim of coercion with polygraph evidence"). In reversing this

court in Jackson, the supreme court stated: "[W]e cannot agree
with the appellate court's conclusion that the introduction of

polygraph evidence before the witness has opened the door to its

admission was merely a harmless timing error." Jackson, 202 Ill.

2d at 371. Here, the State is unable to put forth an argument

that the defendant opened the door to the introduction of

Detective Washburn's testimony regarding the scheduled polygraph

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test as Washburn's testimony was presented in the State's case-

in-chief. Absent the door being opened by the defendant, there

is no legal purpose for the admission of the polygraph evidence.

See Jackson, 202 Ill. 2d at 371. Based on our reading of the

supreme court's holding in Jackson, the trial court's reliance on

the balancing test for admitting the polygraph evidence during

the State's case-in-chief was error. As our supreme court

stated: "We did not approve the offensive use of polygraph

evidence in Jefferson, and we will not now allow the State to
create a straw man only to knock him down, all within its own

case in chief." Jackson, 202 Ill. 2d at 371. As Jackson makes

clear, before the admission of polygraph evidence may be

considered, "requiring the State to offer some legally valid

foundation prior to admitting inherently unreliable and

prejudicial evidence seems but a small intrusion on judicial

expediency in light of this court's long-standing general bar on

polygraph evidence." Jackson, 202 Ill. 2d at 372.
Based on the record before us, we hold that it was

reversible error to admit the polygraph evidence because it was

introduced in the State's case-in-chief and was used as a sword

to advance the State's case. We therefore reverse the

defendant's conviction and remand for a new trial.

B. Motion to Quash Arrest and Suppress Statements

Prior to trial, the defendant filed a motion to quash

arrest. The trial court denied the motion and explained that

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nothing in the record suggested that the defendant was coerced,

handcuffed, "being sweated," or treated in an inappropriate

fashion. Further, there was no evidence the defendant ever asked

to leave, indicated that she did not want to be at the police

station, or indicated that she would have preferred to be

somewhere else. The court explained that the defendant "was

talking throughout the time that she was with the police. They

were trying to check out things that she had said. And as they

were checking things out, they were finding inconsistencies with

her report. But she still always persisted in telling the police

that she had information about what had happened."

The defendant argues that the trial court erred when it

denied her motion to quash arrest because her initial voluntary

presence at Area 2 was converted into an unlawful detention

during her presence at Area 2 and her inculpatory statements were

the fruits of her illegal arrest and inadmissible at trial.

On December 6, 2000, at 6:30 p.m., the defendant accompanied

the police to the Area 2 police station. She was initially

placed in a conference room and was interviewed by Detective

O'Connor at 10:00 p.m. Sometime after that interview, the

defendant was placed in an interview room that was locked for at

least part of the time that the defendant was in the room. She

remained in the room until 5:15 p.m. the next evening, when

Detective Washburn drove her to Homan Square. During the 23

hours the defendant was at Area 2, the defendant spoke with the

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police on two occasions. The police never informed the defendant

that she was free to leave or that she was not under arrest; the

police did not tell her that she could not leave or that she was

under arrest either. The defendant was not processed,

fingerprinted, or handcuffed. Although O'Connor testified that

the defendant was free to have visitors, there is no evidence

that this information was relayed to the defendant.

Additionally, the defendant was not offered the use of a

telephone. O'Connor testified that he kept the defendant at Area

2 because he wanted to verify her version of events. Prior to

her formal arrest, the defendant was given her Miranda rights
only once, when she was being driven to Homan Square by Washburn.

While en route, the defendant asked Washburn about the polygraph

examination, made an incriminating statement, and was formally

arrested.

Where a trial court's ruling on a motion to quash arrest

involves factual determinations and credibility assessments, a

reviewing court will not reverse the ruling unless it is

manifestly erroneous. People v. Chapman, 194 Ill. 2d 186, 217,
743 N.E.2d 48 (2000). However, if there are no factual or

credibility disputes and the appeal involves a pure question of

law, de novo review is appropriate. Because Detective O'Connor

was the only witness at the hearing on the defendant's motion to

quash arrest, and the parties do not contend that factual or

credibility disputes arose during the hearing, we review the

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trial court's denial de novo. Chapman, 194 Ill. 2d at 217.

An arrest or illegal detention without probable cause

violates an individual's rights under the Illinois and United

States Constitutions. U.S. Const., amend. IV; Ill. Const. 1970,

art. I, '6; People v. Wallace, 299 Ill. App. 3d 9, 17, 701 N.E.2d

87 (1998). An arrest occurs when a person's freedom of movement

is restrained by physical force or a show of authority. People

v. Barlow, 273 Ill. App. 3d 943, 949, 654 N.E.2d 223 (1995).

"The test for determining whether a suspect has been arrested is

whether, in light of the surrounding circumstances, a reasonable,

innocent person would have considered himself free to leave."

Wallace, 299 Ill. App. 3d at 17.

Factors Illinois courts consider in determining whether a

defendant was arrested include: (1) the time, place, length,

mood, and mode of the encounter between the defendant and the

police; (2) the number of police officers present; (3) any

indicia of formal arrest or restraint, such as the use of

handcuffs or drawing of guns; (4) the intention of the officers;

(5) the subjective belief or understanding of the defendant; (6)

whether the defendant was told he could refuse to accompany the

police; (7) whether the defendant was transported in a police

car; (8) whether the defendant was told he was free to leave; (9)

whether the defendant was told he was under arrest; and (10) the

language used by officers. People v. Jackson, 348 Ill. App. 3d

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719, 728, 810 N.E.2d 542 (2004); Barlow, 273 Ill. App. 3d at 949;

but see People v. Davis, 142 Ill. App. 3d 630, 636, 491 N.E.2d

1285 (1986) ("defendant's subjective beliefs *** are irrelevant

to a determination of whether he was illegally detained"). No

factor is dispositive and courts consider all of the

circumstances surrounding the detention in each case. People v.

Reynolds, 257 Ill. App. 3d 792, 800, 629 N.E.2d 559 (1994).

"Even if a defendant was not told that he was under arrest, not

touched by a police officer, not handcuffed, fingerprinted,

searched, or subjected to any other arrest procedures, he may

have been illegally detained if he was not told that he could

leave and he did not feel free to leave." Reynolds, 257 Ill.
App. 3d at 800.

In this case, the State does not argue that it had probable

cause to arrest the defendant prior to the time she made an

inculpatory statement on the way to her polygraph examination.

It contends that the defendant voluntarily accompanied the police

to Area 2 and remained there because she wanted to assist in

their investigation. While we agree with the trial court that

there is no evidence that the defendant's initial presence at

Area 2 was anything but voluntary, "the fact that a defendant

initially accedes to a police request to accompany them to the

police station does not legitimize the treatment of defendant

after he arrived at the station." People v. Young, 206 Ill. App.
3d 789, 801, 564 N.E.2d 1254 (1990).

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Illinois courts have repeatedly rejected the proposition

that a person who voluntarily agrees to accompany the police to

the station for questioning implicitly agrees to remain at the

station until the police have probable cause for his arrest. In

Young, the court determined that the defendant was subject to an

illegal detention even though he had initiated contact with the

police and agreed to go to the police station. In making its

determination, the court found as persuasive: (1) the defendant

was not asked to wait in a public waiting area at the police

station; (2) he was placed in a segregated interview room with

the door closed; (3) during questioning he did not implicate

himself and was not released or told he was free to leave once

questioning was over; (4) he was left to sleep in a closed

interview room without sleeping facilities; (5) the State did not

rebut his contention that he was not allowed use of the

telephone; (6) he was in the police station for 12 hours before

he made an incriminating statement and the police had sufficient

probable cause to arrest him; and (7) he was questioned only once

after the initial interview. Young, 206 Ill. App. 3d at 800-01.
The court also rejected the State's argument that the defendant

was merely a witness, explaining that "[i]f mere questioning was

the goal, he would not then have been ignored and left to spend

the entire night." Young, 206 Ill. App. 3d at 801.

In Barlow, the defendant voluntarily accompanied his brother
to the police station to answer questions about a murder

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investigation. Although the brother was told he could leave, the

defendant was not given that option. He was given his Miranda

rights and interviewed. He was then left in a locked interview

room for six or seven hours while the police sought to verify his

statements. Barlow, 273 Ill. App. 3d at 949-50. The appellate

court held that the defendant was under arrest while he was

locked in the interview room and "rejected the proposed fiction

that a person who voluntarily agrees to submit to interrogation

at a police station also implicitly consents to remain in the

police station while the police investigate the crime to obtain

probable cause for the interviewee's arrest." Barlow, 273 Ill.
App. 3d at 950; see also People v. Walls, 220 Ill. App. 3d 564,

579, 581 N.E.2d 264 (1991) (finding it difficult to believe "that

citizens typically agree to spend extended periods of time at

police stations, kept in small windowless rooms, waiting for the

police to conduct their investigations and obtain probable cause

for their arrest").

After carefully reviewing the circumstances surrounding the

defendant's presence at the Area 2 police station, we find that

the circumstances were such that a reasonable person would have

concluded that she was not free to leave. Like the defendant in

Young, the defendant was not asked to wait in a public waiting

area. She was initially placed in a conference room where she

was interviewed by Detective O'Connor. After the interview, the

defendant was not released or told she was free to leave.

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Although the defendant did not implicate herself in the victim's

murder or assault, the police moved her to a separate, sometimes

locked, interview room where she slept on a hard bench. At 9:00

a.m. the next morning, the defendant was asked if she was willing

to take a polygraph examination. The defendant agreed but

remained in the interview room until Detective Washburn drove her

to Homan Square at 5:15 p.m.

Detective O'Connor indicated that he "kept" the defendant in

the interview room until 5:15 p.m., on December 7, 2000, because

the police wanted to verify her statements. During that time,

the defendant was not moved to a public waiting area or informed

that she was free to leave. The trial court's statement that the

defendant "always persisted in telling the police that she had

information about what had happened" finds no support in the

record, because the police interviewed the defendant only once

during the 23 hours that she was in the station. O'Connor

testified that during that interview, the defendant stated that

she did not see the blood in the apartment or try to wash it off

the wall. There is no evidence in the record that she provided

any incriminating information at that time. The police did not

talk to the defendant again until they asked her if she would be

willing to take a polygraph examination.

Based on the facts in this case, we find that "[i]t defies

credibility for a detainee under such severe and extended

circumstances to believe that [her] acquiescence to such

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treatment was left to [her] voluntary discretion." Young, 206

Ill. App. 3d at 801. We also reject the State's unsupported

assertion that the defendant chose to remain at the station

because she was homeless, there was a snowstorm, and the police

station was warm and well-lit.

A finding that a defendant was subject to an illegal arrest

does not resolve the question of whether her inculpatory

statements were properly admitted at trial. Wallace, 299 Ill.
App. 3d at 18. Statements may be admissible if they were

obtained "by means sufficiently distinguishable to be purged of

the taint of the illegal arrest." Barlow, 273 Ill. App. 3d at

952. To determine whether a confession was the product of an

illegal arrest, courts consider: (1) the proximity in time

between the arrest and the confession; (2) the presence of

intervening circumstances; (3) the purpose and flagrancy of the

police misconduct; and (4) whether the defendant received

Miranda warnings. Barlow, 273 Ill. App. 3d at 952. Because the

trial court did not address whether the defendant's statements

were sufficiently attenuated from the illegal arrest to purge the

taint of illegality, the State may seek an attenuation hearing on

remand prior to the new trial. See Wallace, 299 Ill. App. 3d at

19.

C. Closing Arguments

The defendant next argues she was denied a fair trial

because during closing arguments the State misstated the law and

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evidence, made inaccurate, prejudicial statements designed to

inflame the passions of the jury, and improperly commented on the

repercussions of a verdict other than first-degree murder.

Because we are remanding this case for a new trial, we need not

reach the merits of these arguments.

D. Defendant's Mittimus

The defendant also argues that her mittimus must be

corrected to reflect the proper number of days credit for time

served. Again, because we are remanding this case for a new

trial, we need not address this issue.

III. CONCLUSION
For the reasons stated, we reverse the defendant's

conviction and remand for proceedings consistent with this order.

A new trial is not barred by the prohibition against double

jeopardy because the evidence presented at trial, including the

polygraph evidence and the defendant's confession, was sufficient

to support the defendant's conviction. See People v. Olivera,
164 Ill. 2d 382, 393, 647 N.E.2d 926 (1995) ("for purposes of

double jeopardy all evidence submitted at the original trial may

be considered when determining the sufficiency of the evidence").

Reversed and remanded with instructions.

WOLFSON and BURKE, JJ., concur.

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