THIRD DIVISION September 30, 2014

No. 1-13-0743

THE PEOPLE OF THE STATE OF ILLINOIS ) Appeal from the ) Circuit Court of Plaintiff-Appellee, ) Cook County ) v. ) 08 CR 10910-03 ) DOMINIQUE CLAYTON, ) Honorable ) James L. Rhodes, Defendant-Appellant. ) Judge Presiding.

JUSTICE MASON delivered the judgment of the court, with opinion. Presiding Justice Pucinski and Justice Lavin concurred in the judgment and opinion.

OPINION

¶1 Defendant Dominique Clayton was charged with multiple counts of first degree murder,

attempted first degree murder, and aggravated battery with a firearm under a theory of

accountability for shootings that occurred on March 6, 2008.

¶2 During Clayton's bench trial, as the State attempted to introduce videotape recordings of

two interviews of Clayton by police, defense counsel learned that a third interview had been

conducted before any of the recorded interviews. That first interview was not recorded.

Clayton moved to suppress her statements to police for violation of section 103-2.1(b) of the

Code of Criminal Procedure of 1963 (725 ILCS 5/103-2.1(b) (West 2012)) based on the failure

to record her first interview. After a hearing on Clayton's motion to suppress, the trial court

found Clayton was in custody at the time of the first interview and, therefore, that the first No. 1-13-0743

interview should have been recorded. Based on this finding, the court suppressed the videotapes

of the second and third interviews under section 103-2.1(d) of the Code. 725 ILCS 5/103-2.1(d)

(West 2012).

¶3 The State now appeals, arguing that the trial court erred in finding that defendant was in

custody at the time of her first, unrecorded interview and therefore section 103-2.1 is

inapplicable. The State further contends that it overcame the presumption of inadmissibility.

We disagree and affirm.

¶4 BACKGROUND

¶5 On the afternoon of March 6, 2008, Kenneth Thomas and Maverick Magee were shot in

South Holland, Illinois, resulting in Thomas's death and serious injuries to Magee. We will not

summarize the facts relating to those shootings and Clayton's connection to them as they are not

relevant to the issues on appeal. Clayton, along with codefendants who are not parties to this

appeal, was charged with multiple counts of first degree murder, attempted first degree murder,

and aggravated battery with a firearm in connection with the shootings. Clayton was charged

under a theory of accountability. Clayton's and her codefendants' bench trial commenced on

December 11, 2012.

¶6 Detectives Martin Knolmayer and Kenneth Arvin were assigned to investigate the

shootings. At 11 p.m. on the night of March 6, 2008, Arvin and Knolmayer, along with at least

two other officers, arrived at Clayton's home. The detectives asked Clayton to accompany them

to the South Holland police station to talk about the shootings. Clayton, who was 17 years old at

the time, agreed and was taken to the police station in the back of an unmarked police vehicle.

Arvin testified that Clayton was not handcuffed and that when she was taken to the station,

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Clayton was a witness and not a suspect. Arvin admitted that, prior to their arrival at Clayton's

home that evening, police had compiled a list of suspects that included Clayton.

¶7 Once inside the police station, Clayton was taken to an unlocked interview room.

According to Arvin's testimony at trial, the interview with Clayton lasted approximately 20

minutes. A videotaped recording shows an interview with Clayton that began at 3:55 a.m. on the

morning of March 7, 2008, nearly five hours after she was brought to the station. At the outset

of the interview, Arvin asked Clayton whether she came to the police station "voluntarily" and

"of her own free will" to which she responded affirmatively. The videotape shows Clayton was

advised of her Miranda rights, which she waived. Arvin testified that "every word" made by

Clayton was recorded. After the interview ended, Clayton was taken to the lobby of the police

station to wait for a family member to take her home.

¶8 The next day, on March 8, 2008, Clayton was arrested at her place of employment, a

McDonald's restaurant. Clayton was handcuffed and taken to the police station. At the station,

Clayton again waived her Miranda rights and spoke to police. That interview was also

videotaped.

¶9 On the second day of Clayton's trial, as the State attempted to introduce the videotaped

recordings of Clayton's interviews, defense counsel objected on foundation and authenticity

grounds. The trial court overruled the objection and the videos were admitted into evidence. In

the videotape of Clayton's March 7 interview, Arvin alluded to a prior interview as he questioned

Clayton. When trial resumed the following day, defense counsel again objected to the

introduction of the videotaped interviews, this time on the basis that there had been an interview

that had not been recorded. The trial court allowed defendant to recall Arvin to clarify that he

had conducted an interview of Clayton that was not videotaped. This first, unrecorded interview

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occurred one to two hours after Clayton was picked up from her home at 11 p.m. on March 6.

Arvin testified that he took notes during the first interview but did not know where the notes

were. The trial court delayed ruling on Clayton's objection until the next court date and ordered

the officer to locate the notes from Clayton's first interview. The notes were never produced.

¶ 10 At the next court date, defense counsel argued that the detectives had violated section

103-2.1 by not videotaping Clayton's first interview and that the videotapes of Clayton's second

and third interviews were presumed inadmissible according to the statute. Defense counsel

moved to suppress the videotaped recordings of Clayton's interviews with police. The trial court

then adjourned the trial and conducted a hearing on Clayton's motion to suppress the videotaped

interviews.

¶ 11 Both Arvin and Knolmayer testified at the suppression hearing. Their testimony revealed

more information regarding the events on the night of March 6, 2008. When they arrived at

Clayton's home at 11 p.m. with other officers, Arvin and Knolmayer spoke to Clayton's parents,

introduced themselves, asked to speak to Clayton, and told them they wanted to speak to her at

the station about the shootings. The detectives testified that Clayton was allowed to go to

another part of the house to retrieve her jacket before she was taken to the police station. The

detectives also advised Clayton's parents that they would bring her home. According to the

detectives, Clayton was not considered a suspect before or after the first interview. Arvin

admitted that in "canvasses" where police visit neighborhoods to interview witnesses, witnesses

are generally interviewed in their homes and "suspects" are interviewed at the station.

Knolmayer testified that he and the other detectives were "ordered" to bring Clayton to the

station.

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¶ 12 Once at the station, Clayton was taken to a room. Arvin's testimony at trial was that

Clayton was taken to an interview room, but at the suppression hearing, he testified that she was

taken to an "administrative room or a report-writing room." Knolmayer testified Clayton was

taken to an interview room that was not equipped with videotaping equipment. According to the

detectives, the door to the room was unlocked, although neither detective recalled anyone telling

Clayton she was free to leave. Clayton remained there from about 11 p.m. until the conclusion

of the second interview at 4:15 a.m. After bringing her into the station, one to two hours passed

before the detectives interviewed Clayton. She was not given Miranda warnings before the first

interview. The State did not elicit any testimony regarding the substance of the first interview,

how long it lasted, or what Clayton's demeanor was during the interview.

¶ 13 According to Arvin, after the first unrecorded interview concluded, Clayton was taken to

a second interview room, where the recorded interview began at 3:55 a.m. Although the

detectives testified Clayton was still not a suspect in the shootings, Clayton was given Miranda

warnings before the second interview.

¶ 14 Clayton's mother and father testified at the suppression hearing that on the night of

March 6, 2008, the detectives came to their home and asked for Clayton. According to Clayton's

parents, at least four police officers showed up, with weapons. Both testified that detectives told

Clayton that she had to go with them to the police station and handcuffed her sometime after

they allowed Clayton to get her jacket from another part of the home. There was no evidence

that police offered Clayton's parents the opportunity to accompany her to the station or to be

present for her interviews. Clayton's testimony at the suppression hearing about the events of

March 6, 2008 corroborated the testimony of her parents, including that she was handcuffed and

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taken to the police station for questioning about the shootings. Clayton testified that both the

first and second interviews were conducted in the same interview room.

¶ 15 The State's position at trial and during the suppression hearing was that Clayton was not

subjected to a custodial interrogation at the time of either the first (unrecorded) or second

(recorded) interview during the early morning hours of March 7, and therefore, there was no

requirement that those interviews be recorded. The State did not submit any evidence regarding

the second and third interviews or the voluntariness or reliability of any of the statements made

during any of the interviews.

¶ 16 Following the close of the evidence at the suppression hearing, the trial court found that

the first interview was custodial and should have been videotaped. The trial court found that

taking a 17-year-old from her home at 11 p.m. at night without her parents and questioning her in

an interview room at the station and not at her home supported a finding that Clayton was in

custody. As to whether Clayton was handcuffed, the court found that she was not handcuffed

when the detectives first arrived at her home because she was allowed to retrieve her jacket. But

the court found that, given the conflicting testimony and the lack of any contemporaneous

reports, it was impossible to determine when she was handcuffed or whether she was later

handcuffed at all. The trial court noted that despite directing the State to produce the notes from

the first interview, the State failed to produce notes or any record of what occurred during that

interview. As to whether the officers asked Clayton questions during the first interview that

were reasonably likely to elicit an incriminating response, the trial court found it was likely that

Clayton made some incriminating statements given the officers' decision to give her Miranda

warnings and videotape the second interview. The trial court granted Clayton's motion to

suppress the videotapes for violation of section 103-2.1.

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¶ 17 Following the ruling, the State filed a motion to reconsider. The State repeated its

argument that Clayton was not in custody during the March 7 interviews. The State also argued,

for the first time, that the videotaped statements should be admitted under section 103-2.1(f),

which provides that "[t]he presumption of inadmissibility of a statement made by a suspect at a

custodial interrogation" may be "overcome by a preponderance of the evidence that the statement

was voluntarily given and is reliable." 725 ILCS 5/103-2.1(f) (West 2012). The State did not

present evidence as to the voluntary nature or the reliability of any of the statements made during

the interviews.

¶ 18 In denying the State's motion to reconsider, the trial court emphasized that a 17-year-old

was taken by police from her home without her parents late at night and remained at the police

station for at least 4½ hours without sleep and without a lawyer, that Clayton was on a list of

"suspects" before the police went to her home, and that the police have no notes or record of

what happened between 11 p.m. and 3:55 a.m. Thus, the trial court determined that Clayton was

in custody during the first and second interviews and the State failed to meet its burden to show

that the first statement was voluntary and reliable by a preponderance of the evidence.

¶ 19 Clayton's trial was stayed pending the State's appeal to this court. For the reasons that

follow, we affirm the trial court's order suppressing Clayton's statements.

¶ 20 ANALYSIS

¶ 21 The State contends the trial court's finding that Clayton was subjected to custodial

interrogation during the first interview is against the manifest weight of the evidence, thus

rendering section 103-2.1 inapplicable. The State also maintains it proved by a preponderance of

the evidence that the videotaped statements were given voluntarily and thus, it overcame the

presumption of inadmissibility of the statements under section 103-2.1(f).

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¶ 22 On review of a trial court's ruling on a motion to suppress, we afford great deference to

the trial court's credibility determinations and factual findings, and we will not disturb those

findings unless they are against the manifest weight of the evidence. People v. Slater,

(2008). A judgment is against the manifest weight of the evidence only when an

opposite conclusion is apparent or when findings appear to be unreasonable, arbitrary, or not

based on evidence. People v. Lopez,

. We review de novo the

ultimate question of whether the motion to suppress evidence should have been granted.

In

arriving at our decision, “it is proper for us to consider the testimony adduced at trial, as well as

at the suppression hearing.” Slater,

.

¶ 23 Under section 103-2.1 of the Code, police must make an accurate electronic recording of

any interrogation that occurs as part of a murder investigation, and if the State subjects a murder

defendant to an unrecorded custodial interrogation, “then any statements made by the defendant

during or following that nonrecorded custodial interrogation, even if otherwise in compliance

with this Section, are presumed to be inadmissible.” 725 ILCS 5/103-2.1(d) (West 2012).

Further, pursuant to section 103-2.1(f), “[t]he presumption of inadmissibility of a statement made

by a suspect at a custodial interrogation at a police station or other place of detention may be

overcome by a preponderance of the evidence that the statement was voluntarily given and is

reliable, based on the totality of the circumstances.” 725 ILCS 5/103-2.1(f) (West 2012).

¶ 24 A. Whether Clayton's First Interview Was Custodial

¶ 25 The State first argues that Clayton voluntarily cooperated and spoke to police as a witness

at the time of her first interview. Therefore, the State maintains, the first statement was not the

product of a custodial interrogation and, thus, the mandatory recording requirement of section

103-2.1 did not apply.

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¶ 26 Under section 103-2.1(a), a custodial interrogation is defined as any interrogation during

which (i) a reasonable person in the subject's position would consider himself or herself to be in

custody and (ii) a question is asked that is reasonably likely to elicit an incriminating response.

725 ILCS 5/103-2.1(a) (West 2012). Section 103-2.1(a) thereby codifies “the common-law

definition of custodial interrogation developed in Miranda and [its] progeny.” People v. Harris,

.

¶ 27 Factors relevant to the inquiry into whether an individual was in custody include: (1) the

location, time, length, mood, and mode of the questioning; (2) the number of police officers

present during the interrogation; (3) the presence or absence of family and friends of the

individual; (4) any indicia 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, intelligence, and mental makeup of the accused. Slater,

. After examining and weighing these factors, the trial court must make an

objective determination as to whether, under the facts presented, “a reasonable person, innocent

of any crime” would have believed that she could terminate the encounter and was free to leave.

(citing People v. Braggs,

(2003), and People v. Fair,

, 66–67

(1994)).

¶ 28 Applying the above factors to the evidence adduced at trial and at the suppression

hearing, and giving due deference to the trial court's resolution of factual questions in light of its

ability to observe first-hand the witnesses' credibility and demeanor, we find that virtually every

relevant factor supports the trial court's finding that Clayton was in custody at the time of the

first interview.

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¶ 29 First considering the manner by which Clayton arrived at the police station (Slater,

), Clayton's visit to the station was not initiated by her, nor was she given the option

to be questioned at her home or to report to the police station at a later time, although the State

maintains that she was, at least at the time of her first interview, merely a witness. It is

undisputed that Clayton was taken from her home at 11 p.m. and was asked to accompany the

officers to the police station at a time specified by them, i.e., immediately.

¶ 30 Clayton was also not afforded the opportunity to travel to the station with her parents or a

family member. Instead, Clayton was transported to the police station by two officers in an

unmarked police vehicle. The detectives told Clayton's parents they would give her a ride home,

although they later failed to do so. Thus, Clayton did not have a means to get home on her own

and was ultimately required to call someone for a ride home after the interviews ended near

dawn the next day. Thus, the manner in which Clayton arrived at the police station supports the

finding that she was in custody. See Slater,

. ("Defendant's voluntary arrival at

the [place of interrogation] by means of her own transportation is distinguishable from a situation

in which a defendant is transported to and from the place of interrogation by law enforcement

officers and has no other means of egress from that location.").

¶ 31 We also consider the number of police officers present, as well as the location, time,

length, mood and mode of questioning. First, it is uncontroverted that at least four police

officers arrived at Clayton's home. The number of officers present raises serious doubt regarding

the State's contention that when police first arrived at her home, they considered Clayton to be

merely a witness. Additional questions regarding Clayton's status as a witness are raised by the

failure of police to question Clayton in her home, despite the acknowledgement that witnesses

are usually questioned either in their homes or in the vicinity of the crime, not at a police station.

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Questioning conducted at a police station, particularly when a witness is not informed that he or

she is free to leave and when the witness must rely on the police for transportation, presents a

more intimidating and adversarial environment. Slater,

.

¶ 32 The time of the interview also supports the finding that Clayton was in custody. It is

uncontroverted that Clayton was picked up from her home late at night and was detained at the

police station for more than five hours. The fact that Clayton was held at the police station

overnight belies the State's assertion that she was not in custody.

¶ 33 The State presented no evidence regarding the mood and mode of questioning during the

first interview. Indeed, the State presented no evidence at all regarding what questions Clayton

was asked and what answers she gave during the first interview. Thus, this factor could not

possibly weigh in favor of a finding that Clayton was not in custody during that interview.

¶ 34 While there is no evidence that there was a formal arrest procedure such as booking or

fingerprinting, the trial court's finding that it could not determine whether Clayton was

handcuffed (after she was permitted to retrieve her jacket) because of the lack of a record as to

the circumstances under which Clayton was taken to the police station is manifestly correct.

Given the failure of the police to document in any way their initial encounter with Clayton, this

factor is, at most, neutral. Even if Clayton was not handcuffed at all, the determination that she

was in custody is supported by other facts in evidence. As we have noted, the time of the

officers' arrival at Clayton's home, the number of officers present and the fact that Clayton was

transported to the police station in a police vehicle all support the custodial nature of the

interrogation. Further, although the room where the questioning was held was unlocked, Clayton

was never told she was free to leave, even as the hours passed overnight.

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¶ 35 Finally, the remaining factors also weigh in favor of finding that Clayton was in custody

at the time of the first interview. The record indicates that Clayton was taken from her parent's

home, her parents did not accompany her to the station, and Clayton was alone at the police

station overnight. People v. Vasquez,

(2009) (police asking defendant's

parents to leave the defendant's hospital room so that they could question the defendant was a

factor suggesting that the defendant was in custody). Moreover, although Clayton was a high

school graduate, the fact that Clayton was a 17-year-old who still lived at home is a relevant

consideration, as her age would impact her perception of the custodial nature of the interrogation.

The State introduced no evidence that anything in Clayton's background and, in particular, any

experience she might have had with the criminal justice system, could have offset her perception

that she was obligated to accompany the police to the station and answer any questions posed to

her.

¶ 36 The record also supports the trial court's finding that the "suspects" list, which included

Clayton's name, was generated before the police officers went to Clayton's home. The State

challenges the finding that Clayton was on the "suspects" list and insists she was merely a

witness at the time of the first interview. But whether Clayton was, in fact, a suspect in the

investigation does not impact our determination as to whether the interrogation was custodial.

Slater,

(a police officer's subjective view that the individual under questioning

is a suspect, if undisclosed, does not bear upon the question of whether the individual is in

custody for purposes of Miranda); Stansbury v. California,

(1994).

¶ 37 Conversely, the State's position that Clayton was considered merely a "witness" by police

does not affect the objective circumstances of an interrogation, and thus does not affect the

custody inquiry. Stansbury,

("Our decisions make clear that the initial

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determination of custody depends on the objective circumstances of the interrogation, not on the

subjective views harbored by either the interrogating officers or the person being questioned.").

Even if the police officers disclosed to Clayton that she was a witness during the first interview

(and the record contains no evidence to this effect), such disclosure would be relevant only to the

extent it would affect whether a reasonable person in Clayton's position would feel free to leave.

Here, the evidence supports the conclusion that a reasonable person in Clayton's position would

not have felt free to leave the police station.

¶ 38 Contrary to the State's position, Clayton's stay at the station was not a brief, nonintrusive

encounter with police. After arriving at the station, Clayton was placed in a room to wait for one

to two hours before she was first interviewed by two detectives. Before the second interview

began at 3:55 a.m., Clayton was at the station nearly five hours and, during that period, no one

told her she was free to leave. During the second interview, Clayton was not informed that the

police considered her a witness, rather than a suspect. It was not until after the second interview

concluded –at approximately 4:15 a.m. –that officers made it clear that Clayton was free to leave

the station by bringing her to the station's lobby.

¶ 39 No single factor is dispositive, and in each case we consider all of the circumstances

surrounding the questioning to determine whether it was custodial. People v. Daniel,

(1992). That Clayton was taken to the police station late at night and

questioned overnight are two "among many factors that bear upon the assessment whether that

individual was in custody, and not the sole determinant of that issue." (Internal quotation marks

omitted.) Slater,

. Here, examining and weighing all the various factors, and

not a single factor alone, we find that a reasonable person, innocent of any crime, would not have

believed that he or she could terminate the encounter or was free to leave.

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¶ 40 The State maintains that the trial court "made no reference" to defendant's "explicit

statement that she voluntarily accompanied the detectives to the police station." For this

proposition, the State points to the videotaped recording of the second interview.

¶ 41 We cannot say that the State's argument that the videotape of the second interview shows

that Clayton was a cooperating witness is supported by the evidence. As we note above, Clayton

was asked to affirm that she accompanied officers to the station "voluntarily" and "of her own

free will." We would hardly expect a teenager to argue the point with police. Further, there is

no record of what actually occurred during the first interview, and even if Clayton voluntarily

accompanied officers to the police station, there is no record of what transpired between the time

Clayton arrived at the station and the second interview nearly five hours later. If anything, the

fact that Clayton was apparently left alone in an interview room for several hours in between

interviews and then questioned again regarding the events of March 6 would point to a more,

rather than less, coercive atmosphere. Thus, Clayton's statement in the videotape that she went

to the station of her own volition bears little relevance to the custodial nature of her second

interview.

¶ 42 We are also unpersuaded by the State's argument that the trial court based its decision

primarily on the fact that the detectives did not have notes from the first interview, instead of

analyzing the "totality of the circumstances" to determine if there was a custodial interrogation.

The findings of fact made by the trial court are clearly supported by the evidence adduced at trial

and the suppression hearing. The court considered not only that it could not determine what

occurred during the first interview because of the failure of the State to produce the notes from

the interview, but it also expressly considered the remaining relevant factors. The record amply

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supports the trial court's determination that Clayton was in custody during both her first and

second interviews.

¶ 43 With respect to the second issue regarding the custodial nature of the interrogation –

whether Clayton was asked questions during the first interview that were reasonably likely to

elicit an incriminating response –the trial court reasonably inferred that the responses Clayton

gave to the questions at least led the detectives to record the second interview and give her

Miranda warnings. Indeed, Arvin testified that he was instructed by a superior to give Clayton

Miranda warnings before the second interview, a fact that supports the inference that something

Clayton said during the first interview caused the superior to conclude she should be advised of

her constitutional rights. The State introduced no evidence to rebut that reasonable inference,

particularly given that there is no record of what occurred during the first interview. Further, the

videotape of the second interview shows that detectives alluded to her earlier statements and

asked Clayton why her story was not consistent with the one she gave earlier. This likewise

supports a finding that Clayton was likely asked questions designed to elicit incriminating

statements during the first interview.

¶ 44 Based on the factors examined and weighed above, and the well-supported findings of

fact made by the trial court, we conclude that Clayton was subjected to a custodial interrogation

as defined by section 103-2.1(a) during her first, unrecorded interview with police. 725 ILCS

5/103-2.1(a) (West 2012).

¶ 45 Under section 103-2.1(d), if the court finds, by a preponderance of the evidence, that

Clayton was subjected to a custodial interrogation in violation of section 103-2.1(b), then any

statements made by Clayton during or following that unrecorded custodial interrogation are

presumed inadmissible. 725 ILCS 5/103-2.1(d) (West 2012). Given that the trial court correctly

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found by a preponderance of the evidence that Clayton's statements during the first interview

were made as a result of a custodial interrogation, section 103-2.1 applied and the police violated

section 103-2.1(b) by failing to record Clayton's first interview. Therefore, the videotapes of

Clayton's statements during the second and third interviews are presumed inadmissible.

¶ 46 B. Whether the State Overcame the Presumption of Inadmissibility

¶ 47 The State argues that the trial court erred in suppressing the videotapes of the second and

third interviews because any presumption of inadmissibility was overcome by a preponderance

of the evidence that the statements were given freely and voluntarily. But the State failed to

adduce any evidence, other than the videotapes themselves, that the statements made during the

second and third interviews were (1) voluntarily given and (2) reliable. The State first argues

that the failure to record Clayton's first interview was "inadvertent." This argument, advanced

for the first time on appeal, directly contradicts the position the State took in the trial court, i.e.,

that the detectives' failure to record the first interview was based on their belief that Clayton was

merely a witness. Having taken that position, we cannot allow the State to recharacterize the

detectives' conduct on appeal.

¶ 48 Moreover, the State never attempted to sustain its burden to demonstrate the

voluntariness of Clayton's statements at the trial court. During the suppression hearing, the

State's sole contention was that section 103-2.1(b) did not apply because Clayton was not subject

to a custodial interrogation. The evidence presented by the State at the suppression hearing

related only to the factors relevant to the inquiry as to whether the first unrecorded interview was

custodial, but no evidence was presented about the voluntariness of the statements made during

the recorded interviews.

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¶ 49 The preliminary inquiry into the voluntary nature of a confession is for the trial court.

People v. Melock,

(1992). Here, the trial court never had the opportunity to

consider the voluntary nature of the statements made during any of Clayton's interviews because

the State elected to present no evidence on the issue. Apart from failing to present evidence on

the topic, the State never even argued during the suppression hearing that the videotaped

statements were given voluntarily. In fact, it was not until its motion for reconsideration that the

State even raised section 103-2.1(f) and the possibility that the presumption of inadmissibility of

the statements could be overcome. 725 ILCS 5/103-2.1(f) (West 2012). Even then, the State did

not present any evidence or argue that the recorded statements were voluntarily given. Instead,

the State argued only that the first unrecorded statement was given voluntarily, an argument the

trial court properly rejected. Therefore, the State failed to meets its burden to prove by a

preponderance of the evidence that the statements given during any of Clayton's interviews were

voluntary and reliable.

¶ 50 While the State criticizes Clayton for failing to raise any challenge to the voluntariness of

the second and third statements (which we believe is a mischaracterization of the record), it is the

State under section 103-2.1(f) that must overcome the presumed inadmissibility of these

statements by establishing by a preponderance of the evidence that the statements were voluntary

and reliable. In other words, once the trial court found the violation of section 103-2.1(b), unless

and until the State satisfied its burden to show that the statements were nevertheless voluntary,

they could not be used. Clayton was under no obligation to claim, much less prove, that the later

statements were involuntary and because the State adduced absolutely no evidence on the

voluntariness issue, it failed to meet its burden of proof and the motion to suppress was properly

granted.

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¶ 51 The State's additional argument that section 103-2.1 is inapplicable because it did not

seek to admit the substance of Clayton's first interview (an impossibility given the lack of any

record of the interview) is a transparent attempt to circumvent the requirements of the statute.

Under the State's view, police could presumably use whatever coercive tactics and ask any

questions designed to elicit incriminating evidence they choose to in an unrecorded interview

and, as long as the State did not attempt to use the statements made, the violation of the statute

would be without consequence. But this ignores the statute's plain language. See Harris,

("The only fair reading of the statute is that the legislature's clear

intent was to ensure that statements related to murder investigations were not a result of the

coercive pressures of custodial interrogation in a police facility but, rather, were both voluntary

and reliable. See 725 ILCS 5/103-2.1(f) (West 2008)"). In an effort to eliminate the precise type

of problems encountered in this case—an unrecorded interview of a suspect in a homicide

investigation—the legislature mandated that such interviews be recorded and specified

consequences when they are not. Having introduced no evidence regarding the "voluntary"

nature of the first interview or the contents of that interview and in light of the trial court's

factually supported finding that Clayton was in custody during the first interview, the order

suppressing the second and third interviews was the only result contemplated by the statute.

¶ 52 Whether the only evidence presented for the voluntariness inquiry—the videotapes—

shows that the statements were voluntarily made is a question of fact for the trial court. "While

we review the legal issue of voluntariness de novo, the foundation of that determination is a

factual one which the trial court has the exclusive task of considering. [Citations]." Harris,

. As noted above, the trial court had no chance to make such

determination because the State never argued or even attempted to overcome the presumption of

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inadmissibility. Simply put, that issue was never fully addressed because the State failed to

present it to the trial court. Additionally, whether a statement was reliable is a separate inquiry

from whether it was voluntary. See 725 ILCS 5/103-2.1(f) (West 2012); Harris,

. The State never argued that the statements were reliable.

¶ 53 Although the State had multiple opportunities to present the argument (and evidence) that

the statements given during the interviews were voluntary and reliable, the State failed to do so.

At a minimum, the State failed to meet its burden to prove by a preponderance of the evidence

that the recorded statements were given voluntarily, and on this record, by failing to argue that

the statements were given voluntarily and are reliable, the State has forfeited this argument on

review. See People v. Adams,

(1989).

¶ 54 CONCLUSION

¶ 55 We hold that the trial court's finding that Clayton was in custody under section 103-2.1(b)

during the unrecorded first interview is not against the manifest weight of the evidence.

Therefore, any statements which were made after the unrecorded interview were presumed

inadmissible. 725 ILCS 5/103-2.1(d) (West 2012). Because the State failed to adduce any

evidence sufficient to sustain its burden to prove that the later statements were voluntary and

reliable, they were properly suppressed.

¶ 56 Affirmed.

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