No. 2-15-0511 Opinion filed February 21, 2017 ______________________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT ______________________________________________________________________________

THE PEOPLE OF THE STATE ) Appeal from the Circuit Court OF ILLINOIS ) of Du Page County. ) Plaintiff-Appellee, ) ) v. ) No. 12-CF-1455 ) TODD J. MANDOLINE, ) Honorable ) John J. Kinsella, Defendant-Appellant. ) Judge, Presiding. ______________________________________________________________________________

JUSTICE BIRKETT delivered the judgment of the court, with opinion. Justices Burke and Spence concurred in the judgment and opinion.

OPINION

¶1 Following a jury trial in the circuit court of Du Page County, defendant, Todd J.

Mandoline, was convicted of first-degree murder (720 ILCS 5/9-1(a)(3) (West 2012)) and

aggravated arson (720 ILCS 5/20-1.1(a)(2) (West 2012)), and he was sentenced to consecutive

terms of imprisonment of 27 years for murder and 12 years for aggravated arson. Defendant

appeals, arguing that: (1) probable cause did not exist for his arrest; (2) defendant did not

voluntarily reinitiate questioning with the police after the initial interrogation had ceased due to

his invocation of his right to counsel; (3) his statements to the police were not voluntary,

knowing, and intelligent; (4) his statements were obtained in violation of section 103-2.1 of the

Code of Criminal Procedure of 1963 (Code) (725 ILCS 5/103-2.1 (West 2012)), which requires

the electronic recording of custodial interrogations in murder investigations; and (5) the trial

court erroneously refused a jury instruction bearing on the proximate-cause theory of felony

murder. We affirm.

¶2 I. BACKGROUND

¶3 We summarize the pertinent facts adduced during the hearings and the trial in this matter.

Early in the morning on July 22, 2012, Paula Morgan died in a fire at her home in Lombard,

Illinois; Jason Cassiday was burned over 40% of his body and experienced life-threatening

pulmonary injuries due to inhaling smoke and combustion products, but he survived the fire.

The fire began in Morgan’s car: a piece of paper had been inserted into the gasoline fill tube of

the car and ignited. The car was parked in the driveway of the home, almost inside of the garage.

The garage door was open and the door to the mudroom, off of the garage, was also open. A

whole-house fan, which was apparently operating at the time of the fire, pulled smoke and

flames into the garage and the house. The car and the garage were largely consumed by the fire;

the upstairs rooms of the house were heavily damaged.

¶4 On Saturday, July 21, 2012, Morgan’s parents left on an out-of-town trip. That night,

Morgan had a birthday party. Defendant, who had been in an intimate but up-and-down

relationship with Morgan, attended. As the party progressed, defendant became agitated because

he apparently believed that he and Morgan would spend the night alone together, and he was

upset when she had a large birthday party. At some point during the party, defendant and

Morgan began to argue. Defendant demanded the return of a necklace he had given Morgan;

there was some shoving, and partygoers separated defendant and Morgan. Defendant spoke with

Ricardo Sanchez for an hour or more. Eventually, Morgan surrendered the necklace to

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defendant, and Matt Schopa drove defendant away from the party. At some point, either during

defendant’s initial confrontation with Morgan or as he was leaving the party, he stated, “I hope

you all die.”

¶5 At about 2 a.m. on July 22, 2012, Salman Jaffer, who lived across the street from the

Morgan home, left his home to work out. Jaffer explained that he was observing the Muslim

holiday of Ramadan, which required fasting during the daytime, so he had flipped his schedule

and ate and was active at night. He noticed a car that he did not recognize from his

neighborhood parked across from his house. He returned from his workout at about 3 a.m. and

noticed that the car was no longer there. However, when interviewed by the police, he stated that

the car was still present when he returned from his workout. Sometime between 3:30 and 4 a.m.,

Jaffer heard the sound of breaking glass. Fearing that he was being harassed, he doused the

lights and then noticed an orange glow. He observed that Morgan’s car was on fire and called

911. Jaffer attempted to help, but he was advised by the emergency operator to back away when

the tires on Morgan’s car began to explode.

¶6 At about 3 a.m., Asgar Mohammed, another neighbor observing the holiday of Ramadan,

left his house to go to the grocery store. He encountered a brown-haired white male with a

scruffy beard and exchanged a greeting with him. The man was wearing a light-colored shirt and

baggy light-khaki short pants. Defendant was observed at the party wearing clothes matching

that description. Mohammed also noticed a suspicious car and noted that the person in the car

was not the same person with whom he had exchanged a greeting.

¶7 Police and fire personnel responded to the fire. Police began the process of investigating

the circumstances of the fire.

¶8 At about 5:30 a.m. on July 22, 2012, Detective Sergeant John Malatia of the Lombard

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police department reported to the Morgans’ house. At that early time, no one had determined the

cause of the fire. Malatia noted the damage to the house and to Morgan’s car and returned to his

office. The police began bringing the partygoers into the police department for interviews.

¶9 Detectives Gouty and Grage of the Lombard police department interviewed Sanchez.

Sanchez had observed the altercation between defendant and Morgan and explained that he had

interposed himself and restrained defendant. Sanchez confirmed that defendant had stated, “I

wish you all die” or “I hope you all die.” Sanchez also related that, later, he had seen someone in

the shadows. Although Sanchez was not able to provide a description of the individual in the

shadows, he believed that it was defendant returning to the party.

¶ 10 Another partygoer, Matt Allen, was interviewed by Lieutenant Abenante of the Lombard

police department. Allen related that there was no physical altercation between defendant and

Morgan. Allen also had seen someone in the shadows before the discovery of the fire; Allen did

not say that he had seen defendant.

¶ 11 At around 6:20 or 6:30 a.m., Malatia spoke to Jaffer. Malatia learned that Jaffer had not

seen anyone who seemed responsible for the fire when Jaffer discovered it. Jaffer informed

Malatia that he had seen a Hyundai Tiburon parked near Morgan’s house before the fire but that

the car had departed by the time he discovered the fire.

¶ 12 At 6:32 a.m., Malatia and Detective Terrence Evoy of the Lombard police department

interviewed Schopa. Schopa told the detectives that he had attended Morgan’s birthday party the

previous evening. Schopa related that defendant and Morgan argued about a necklace defendant

had given to Morgan. Schopa also noted that defendant stated that he hoped Morgan died or that

he wanted everyone to die, but Morgan might not have been present for the statement. Schopa

told the detectives that he interceded with Morgan about the necklace, and she gave him the

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necklace to return to defendant. Schopa also informed the detectives that, at around 1:30 a.m.,

he had driven defendant away from the party, dropping defendant off on his street. Schopa drove

the detectives along the route he used to drive defendant away. The detectives determined that

Schopa had dropped defendant off about three houses short of defendant’s residence.

¶ 13 The police investigating the fire held a brief meeting to exchange what they had learned.

After this meeting, Malatia sent Detectives Michael Harris and Balsitis of the Lombard police

department to defendant’s home. Malatia, accompanied by Evoy, followed the other two

detectives to defendant’s home, arriving as Harris and Balsitis were speaking to defendant on his

front porch.

¶ 14 At around 7:15 a.m., Harris and Balsitis arrived at defendant’s home and knocked on the

front door. They were greeted by defendant’s mother and informed her that they wished to speak

with defendant. Defendant’s mother woke defendant, and he joined Harris and Balsitis on the

porch. At this point, the detectives did not inform defendant that Morgan had died, but they

stated that they were investigating a fire that had occurred at Morgan’s house earlier that

morning. Defendant admitted that he had attended Morgan’s party the night before, but he

asserted that he had left the party early because he did not get along with some of the other

partygoers.

¶ 15 As Harris and Balsitis were talking with defendant, Malatia and Evoy arrived. The

record is unclear as to who made the request, but one of the detectives asked defendant to come

to the police department, and defendant agreed. Defendant asked that he be allowed to go to the

bathroom and to get dressed.

¶ 16 Defendant went back into his house, and Harris and Balsitis accompanied him. Harris

watched defendant retrieve his footwear and Balsitis stayed near defendant’s bathroom as he

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relieved himself. Defendant put on the same clothes he had worn to the party. The detectives

noted that these clothes were very wet and that defendant appeared to have sweated heavily in

the clothes, perhaps from running. Harris was asked whether he watched defendant use the

bathroom, and Harris denied that he had done that. Harris was asked whether Balsitis asked

defendant to keep the bathroom door open, and Harris was unsure whether that occurred or even

whether the bathroom door was open. Harris surmised that, if the bathroom door were left open,

Balsitis might have asked defendant to leave it open, but Harris was unsure. After defendant

grabbed his footwear, wallet, and keys, defendant exited his home and got into the unmarked

police car in which Malatia and Evoy arrived. The record does not indicate that defendant was

patted down before entering the car.

¶ 17 At about 7:23 a.m., they arrived at the police department, and defendant was escorted to

an interview room. Before entering the room, Malatia searched defendant and removed

defendant’s phone and wallet, placing them in a cubby.

¶ 18 The interview room was approximately five feet by five feet. At about 7:43 a.m.,

Malatia, with Evoy present, read defendant his Miranda rights. Defendant immediately asked,

“If I had an attorney, would I have to wait then? Would I have to sit here?” Malatia replied,

“Yeah, obviously.” During the ensuing conversation, defendant related that his and Morgan’s

relationship “wasn’t going very well.” Defendant was upset that he and Morgan had not been

spending time together. Malatia directly questioned defendant about the altercation with Morgan

at the party, but defendant initially denied it. Malatia informed defendant that everyone at the

party had mentioned an altercation, and defendant then admitted that he had gotten into an

argument with Morgan, but he said that he could not recall the details, such as why they were

arguing, what they were arguing about, how it started, or whether he pushed Morgan. Defendant

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denied any memory of making threats or cursing out Morgan or any of the other partygoers, but

defendant admitted that, in a text message, he called Morgan a “whore.” Defendant denied that

he returned to the party after Schopa drove him away.

¶ 19 At about 8:18 a.m., defendant stated, “Now, I’ll call my lawyer. You want to say you got

this on me. You want to say whatever and try to pin me down, now, I’ll talk to my lawyer.” The

detectives did not discontinue the questioning. Instead, Malatia continued, saying, “We’re trying

to figure out what happened.”

¶ 20 At about 8:26 a.m., both Malatia and Evoy left defendant alone in the interview room. At

about 8:44 a.m., Evoy returned to the interview room because defendant had opened the door and

set off an alarm. At that point, Evoy told defendant that he was not allowed to leave.

¶ 21 At about 9:11 a.m., defendant said, “I’ve said everything I’m going to say. Can I get my

cigarettes, call my mom, and get a ride?” Malatia told defendant that he could not leave.

Defendant asked why he could not leave, and Malatia told him that they had to get to the bottom

of the incident. Defendant asked if he could retrieve his lawyer’s phone number, and Malatia

and Evoy agreed to let him do that at a later time, but defendant was never allowed to retrieve his

lawyer’s number or to call his lawyer. At about 9:12 a.m., defendant reiterated that he had asked

for a lawyer.

¶ 22 At about 9:21 a.m., defendant was taken out of the interview room and allowed to smoke

(the first smoking break). Because no smoking was allowed in the police department, defendant

was taken outside. The spot to which defendant was taken was a blind spot for the security

cameras located on the outside of the department. In any event, even if defendant had been taken

to a place the security cameras covered, any verbal interaction would not have been recorded,

because the cameras were not equipped to make audio recordings.

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¶ 23 Defendant was accompanied outside by Malatia and Evoy during the first smoking break.

Malatia and defendant spoke generally about defendant and also about the case. Defendant

asked about what happened at the Morgans’ house and how the fire had started. Malatia told

defendant that he did not know. Defendant asked if he could call his mother for a ride and

mentioned the name of his lawyer. Malatia told defendant that he knew defendant’s lawyer.

Defendant also asked when he would be able to leave, but Malatia put him off, telling him that

he could not yet leave. Neither Malatia nor Evoy prepared a report about the conversation with

defendant during the first smoking break. At around 9:32 a.m., defendant was returned to the

interview room. The detectives did not readminister the Miranda warnings.

¶ 24 The questioning continued. At about 9:59 a.m., defendant told the detectives that there

was nothing else they needed to know. The detectives inquired whether there was anything else

defendant wished to tell them, and defendant once again mentioned his attorney. Evoy attempted

to get defendant to talk further, suggesting that defendant and the police would not be able “to fix

things” if defendant were not forthcoming. Defendant responded, “I told you everything from

my point of view. I told you everything.” The questioning continued.

¶ 25 At about 10:11 a.m., Evoy told defendant that incorrectly answering “questions that we

already know the answers to does not help [you],” and he urged defendant to be truthful.

Defendant then reminded the detectives that he had asked for a lawyer, saying, “I said I did want

my lawyer, but you never came back and asked questions about that.” Malatia told defendant

that he was not allowed to call his mother, and defendant replied, “I can call my dad to get

somebody’s number to call my lawyer.”

¶ 26 The questioning continued. Malatia and Evoy continued to use psychological pressure

and urge defendant to give truthful responses, with Evoy warning defendant, “the more we dig,

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the more we’re going to continue to dig, the worse it’s probably going to be for you.” At about

10:25 a.m., defendant once again asked for a lawyer. This time, Malatia finally recognized that

defendant had invoked his right to counsel, and the detectives terminated the questioning and left

the interview room. However, they left defendant in the interview room while they completed

other tasks related to the investigation.

¶ 27 During the interlude, Malatia and Evoy interviewed Mohammed about his observations

before the fire. After about 15 minutes, the detectives wrapped it up. Evoy escorted Mohammed

to the front of the police department. As they were walking, Evoy retrieved copies from the

printer, placing them on top of the folder he was carrying. The copy on top was of a picture of

defendant taken earlier that morning. Evoy did not attempt to show Mohammed the picture, but

since it was on top of the papers he was carrying, Mohammed noticed it. He told Evoy that the

picture was of the man he had seen the night before. Evoy apparently did not create a report to

memorialize the exchange; moreover, Evoy did not bring Mohammed back to an interview room

and attempt to conduct a photo lineup to see if Mohammed could still make an identification.

Instead, he escorted Mohammed to the doors and let him depart.

¶ 28 At around 11:30 a.m., defendant knocked on the door of the interview room and

requested permission to use the restroom and to smoke a cigarette. Defendant was taken to the

restroom, returned momentarily to the interview room, and then taken outside to the same spot

where he had smoked earlier (second smoking break).

¶ 29 According to Malatia, during the second smoking break, defendant asked what was

occurring in the investigation. Malatia believed that defendant asked this about five times; each

time, he or Evoy told defendant, “based on his request for an attorney, we couldn’t answer those

questions anymore.” Defendant then asked when he would be able to leave. Malatia informed

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defendant that he “was going to be there for a while.” Malatia explained to the court that, in his

opinion, defendant was in custody by the time of the second smoking break.

¶ 30 Defendant asked what they needed to do to talk about his case again. Malatia testified

that he explained to defendant:

“[I]n order to talk about the case again, *** he would have to formally say he didn’t want

to talk to an attorney anymore. We would have to go inside the police department, fill

out paperwork to that effect, and we would have to read him his rights again, and we

would have to start all over from scratch there.”

Defendant agreed to the procedure that Malatia had outlined.

¶ 31 At about 11:36 a.m., defendant was taken back to the interview room. Malatia

announced that defendant had earlier asked for an attorney. Malatia asked defendant if he

wanted to speak with the detectives. Defendant replied, “I’ll talk to you.” Defendant signed a

preprinted form revoking his previous invocation of his right to an attorney. Defendant, both

orally and in writing, then waived his right to an attorney. Additionally, defendant was once

again Mirandized.

¶ 32 The questioning resumed. At about 11:46 a.m., Evoy informed defendant that he knew

that defendant was involved and he urged defendant to tell the truth so that he could move

defendant “to the next level and get [him] out of here.” Defendant asked what would happen if

he were to “remember doing it.” Malatia replied that, in the worst case, defendant would be

arrested and charged and would have to go to court. To further press defendant, Malatia warned

him that, if the police were required to continue investigating the incident, it would be “more

difficult for [defendant] to minimize things.” Evoy added that, if defendant were to confess and

take responsibility for his actions, the judge and the State’s Attorney would take it into account.

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At about 11:50 a.m., defendant conceded that he had returned to Morgan’s home, saying that he

“went and spied.” Defendant continued to maintain that he had not started a fire after he

returned to Morgan’s neighborhood.

¶ 33 At about 12:07 p.m., Malatia informed defendant that the experts were, at that moment,

determining how the fire had started. Malatia told defendant that he was trying to get to the heart

of the matter. Defendant continued to deny that he started Morgan’s car on fire: “I don’t know

[inaudible] fire, though. Fuck, I had no gas. If I fucking—I didn’t walk up to the car with a

fucking lighter or nothing.”

¶ 34 After about another hour, at about 1:10 p.m., defendant was taken from the interview

room for another smoking break (third smoking break). Detectives Chudzinski and Gouty of the

Lombard police department escorted defendant out the back door near the garage. Chudzinski

made small talk with defendant while defendant smoked. They discussed defendant’s

employment, where he went to school, and his attempts to stop smoking. Defendant also asked

Chudzinski if he could go home by posting a recognizance bond. Chudzinski told defendant that

Malatia and Evoy still wanted to speak with him. After defendant had smoked, he was returned

to the interview room. Defendant was left alone in the interview room for about an hour.

¶ 35 At about 2:30 p.m., defendant requested another chance to smoke. Chudzinski,

accompanied by Detective Porrata of the Lombard police department, took defendant outside for

another smoking break (fourth smoking break). According to Chudzinski, they once again

engaged in small talk focusing on defendant’s employment, but he did not ask defendant any

questions related to the case. Chudzinski testified that they spoke about defendant engaging in

painting jobs with his father. At some point during the fourth smoking break, defendant asked

where Malatia and Evoy had gone. Chudzinski told defendant that Malatia and Evoy had gone

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to Morgan’s house and were meeting with other investigators and evidence technicians.

Defendant asked what kind of evidence they were looking for. Chudzinski related that he did not

know, because he had not visited the scene; however, he continued, when Malatia and Evoy

returned to the police department, they would still wish to speak with defendant, and Chudzinski

advised defendant to “be honest with them.” At about 2:42 p.m., Chudzinski returned defendant

to the interview room. Once there, defendant remained alone.

¶ 36 At about 2:57 p.m., Malatia and Evoy once again entered the interview room. Evoy

demanded that defendant “come clean right now”; Malatia informed defendant that the police

knew absolutely how the car started on fire. Both detectives repeated that they knew the origin

of the fire and pressed defendant to “come clean.” At about 2:59 p.m., defendant stated that he

lit a piece of paper on fire and put it in the gas tank.

¶ 37 At about 3:20 p.m., Chudzinski and Detective Ranallo of the Lombard police department

took defendant from the interview room for another smoking break (fifth smoking break).

Chudzinski, following Malatia’s instructions, took defendant to smoke in the garage. Chudzinski

explained that defendant was taken into the garage instead of outside because defendant had

admitted his involvement in the fire. Additionally, unlike the other four smoking breaks, the

fifth smoking break occurred in an area that was monitored by the outside surveillance cameras

at the police department, although the camera monitoring the garage area was still unequipped to

record any audio. Defendant asked Chudzinski if he would be able to “do SWAP [Sheriff’s

Work Alternative Program] time” while he was in the county jail for this case. Chudzinski told

defendant that he did not know and returned defendant to the interview room.

¶ 38 Contrasting with the recollections of the various police officers, defendant had a

somewhat different version of the events and the smoking breaks. During the first smoking

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break, defendant asked Malatia and Evoy when he would be able to call a lawyer and when he

would be able to go home. Malatia asked defendant the name of his lawyer, and defendant told

him. Malatia acknowledged that he knew defendant’s lawyer, but Malatia told defendant that his

lawyer would probably not answer his call and that, even if he did answer, he would not come to

the police department on a Sunday morning. Defendant persisted in his requests to call his

lawyer, but Malatia did not allow him to make a call. Malatia also did not respond to

defendant’s request to go home.

¶ 39 Testifying about the second smoking break, defendant maintained that he again asked to

call his attorney and again asked when he would be able to go home. According to defendant,

Malatia stated that he could not contact his attorney and that the only way defendant would be

able to go home was if he decided to speak with the detectives again. Defendant explained why

he agreed to resume talking with the detectives:

“Outside, [Malatia and Evoy] told me that was my only option of going home. I

felt that I really had no options. They flat out told me I couldn’t call my lawyer; I

couldn’t make a phone call, period; I couldn’t call my mother. But they had blatantly

ignored me all day.”

Defendant testified that Malatia instructed him about how they would have to proceed in order to

resume speaking with defendant. According to defendant, Malatia explained that defendant

would have to once again expressly waive his right to an attorney; the detectives would ask

defendant a series of questions and defendant would have to convey that he knowingly wanted to

speak to the detectives and that he had asked to speak with the detectives in the first place.

Defendant further related that Malatia explained to him that all of these procedures were going to

be videotaped so that they could be verified.

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¶ 40 Defendant explained that the reason he did not bring up the purported promise that he

would be able to go home was that it was not part of the agreement he had made with Malatia

during the second smoking break. Defendant elaborated on Malatia’s instructions, maintaining

that Malatia told him what he needed to say in response to the questions that he would be asked

when they were back in the interview room and before the camera. According to defendant,

Malatia told him that he had to go into the interview room and waive his right to an attorney.

Defendant would then be asked if he had approached the detectives and asked to speak about the

case, to which he was going to have to answer, “Yes.”

¶ 41 According to defendant, during the second smoking break, Malatia was “adamant” about

speaking with defendant about the investigation even as he stonewalled defendant’s inquiries

about the investigation by claiming that he was not allowed to speak with defendant because

defendant had asked for a lawyer. Defendant believed that Evoy cautioned Malatia that neither

of the detectives should be talking with defendant. Finally, defendant noted that he had not been

informed that anyone had perished in the fire; rather, the detectives told him that insurance

would cover the damage to Morgan’s car and that he would be allowed to go home.

¶ 42 After the questioning was complete, defendant’s attorney arrived at the police

department. The attorney was allowed to speak with defendant.

¶ 43 Defendant was charged with aggravated arson and murder. Later, a superseding

indictment was filed, charging defendant with first-degree murder, aggravated arson, and other

offenses stemming from the fire. During the investigation, the forensic pathologist determined

that Morgan had died from inhaling smoke and other combustion products caused by the fire.

¶ 44 In an open lot next to Morgan’s house, police recovered a cigarette butt. Genetic testing

on the cigarette butt determined the presence of defendant’s genetic material. In addition, police

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recovered two water bottles, each of which contained a liquid and bits of aluminum foil. The

police later determined that they were like “Drano” or “MacGyver” bombs, in which the

aluminum foil undergoes a reaction with Drano or some other caustic liquid, releasing heat and

causing pressure to build up in the bottle until it bursts. The bottles did not appear to have burst,

but they appeared to have tiny holes that would have allowed the pressure to escape without

bursting them. Testimony at trial indicated that, while the chemical reaction between the

aluminum foil and the caustic liquid produced heat, it would not have caused a flame to result.

Rather, the danger of this sort of device is the build-up of pressure in the bottle. When the bottle

bursts, the heated caustic liquid will splatter about and injure anyone on whom it lands.

¶ 45 The case advanced. Defendant filed a motion to quash his arrest, contending that the

police did not have probable cause to arrest him. After hearing the evidence summarized above

about the investigation, the trial court denied the motion to quash the arrest. The trial court held

that defendant was not in custody until 8:44 a.m., when he attempted to leave the interview room

and was informed that he was not allowed to leave. The trial court then determined that there

was probable cause to justify defendant’s custody. In particular, the trial court noted that the

facts giving rise to probable cause included: defendant participated in a heated argument with

Morgan at the party; defendant and Morgan were in a volatile relationship; defendant and

Morgan’s relationship was deteriorating at the time of the offense; at the party, defendant was

upset because he had expected to be alone with Morgan but she had arranged a large birthday

party; at the party, a possible romantic rival was in attendance and spending time with Morgan;

defendant had threatened the partygoers; shortly after the heated argument, Morgan’s car was set

on fire; defendant’s clothes were sweaty, which was consistent with the police hypothesis that

defendant was involved in setting Morgan’s car on fire and running back to his home; the

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partygoers believed that defendant was lurking in the shadows, despite the lack of a solid

identification; likewise the partygoers believed that defendant set Morgan’s car on fire. The trial

concluded that defendant had motive and opportunity and that the police investigation to that

point reasonably supported the focus on defendant.

¶ 46 Defendant also filed a motion to suppress his statements to the police, based on the

violations of his rights to remain silent and to counsel. After a hearing in which the parties

presented the above-summarized evidence on the circumstances of the interview, the trial court

granted in part and denied in part the motion to suppress the statements. The trial court

specifically determined that, at 8:18 a.m., defendant first invoked his right to speak with counsel,

and this should have caused the questioning to cease but did not. The court suppressed the

statements made between 8:18 and 10:26 a.m. The court also determined that, during the second

smoking break, at about 11:30 a.m., defendant reinitiated discussing the investigation with the

police and, thereafter, knowingly waived his rights to remain silent and to counsel.

¶ 47 The trial court specifically held that defendant’s statement, at 8:18 a.m., “I told you what

happened then. Whatever. I know. Whatever. I will talk to my lawyer now,” was “an

invocation of counsel. [The trial court did not] think it could be too much clearer. [The trial

court did not] think it[ was] ambiguous. And certainly, at that point the interview or the

questioning or interrogation should have stopped. But it did not.”

¶ 48 The trial court noted that the questioning was not harsh or heavy-handed, and it noted that

defendant had demonstrated throughout the improper questioning that his will appeared to be

unshaken. When the police did finally honor defendant’s invocation of his right to counsel,

defendant sat alone in the interview room for an hour. The trial court considered that “one of the

primary motivations [is that] defendants always want to know what the police know [and to

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know] what’s going on.” The trial court believed that this desire to know what is going on

caused defendant to reach out to the police. The court determined, as a matter of fact, that

defendant “initiated a conversation reflecting his desire to engage in a generalized discussion of

the case.”

¶ 49 The trial court weighed the testimony of the police and defendant before determining, as

a matter of fact, that the version given by the police tended to match up with the facts while

defendant’s version did not. Particularly, the trial court noted that defendant had testified that he

wanted to leave and that the police informed him that the only way he could leave was by

agreeing to speak with them. However, during the “hours of interview,” defendant never

mentioned “that, hey, wait a minute, you told me that, if I talked to you, I could go home or you

were going to get my lawyer here or anything like that.” The trial court reasoned that defendant

was attempting to play a cat-and-mouse game with the police by trying to learn “what was going

on” while not “say[ing] too much.”

¶ 50 The trial court considered the police misconduct, notably defendant’s ignored requests to

call a lawyer, but the trial court held the misconduct not to be dispositive. Instead, the trial court

considered all the improper questioning and other misconduct in determining whether defendant

reinitiated the discussion. The trial court held that defendant did reinitiate, which transformed

the inquiry into whether defendant knowingly and voluntarily waived his right to counsel

following his attempt to reinitiate. The trial court noted that defendant was once again read his

Miranda rights before the questioning resumed, and that he knowingly and voluntarily waived

his rights to counsel and to remain silent, rendering admissible the statements made after about

11:30 a.m.

¶ 51 Defendant filed a motion to reconsider the denial of his motion to suppress his

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statements. The trial court heard and denied the motion, reiterating that, at about 11:30 a.m.,

defendant revoked his previous invocation and knowingly and voluntarily waived his Miranda

rights.

¶ 52 Shortly before the trial began, defendant filed a motion to suppress Mohammed’s out-of-

court identification of defendant when Mohammed viewed defendant’s picture in Evoy’s stack of

papers. Following a hearing, the trial court granted the motion to suppress, holding that, whether

done intentionally or inadvertently, the method was unduly suggestive. The court also held,

however, that, apart from positively identifying defendant, Mohammed would be able to testify

about the things he saw, including describing the person he observed. The trial court further

commented that the manner in which the picture was shown to Mohammed was “very troubling”

and that Evoy’s failure to document the identification was “baffling.”

¶ 53 The case advanced to trial. At the close of the evidence, the trial court and the parties

conferred about the jury instructions. Defendant offered Illinois Pattern Jury Instructions,

Criminal, No. 7.15A (4th ed. Supp. 2011) (hereinafter IPI Criminal 4th No. 7.15A (Supp. 2011)),

regarding the foreseeability of a death resulting from an underlying felony. The State objected,

and the trial court refused the instruction.

¶ 54 Following its deliberation, the jury returned guilty verdicts on the charges of first-degree

murder and aggravated arson. Defendant was subsequently sentenced to consecutive terms of 27

years for the murder and 12 years for the aggravated arson. Defendant timely appeals.

¶ 55 II. ANALYSIS

¶ 56 On appeal, defendant argues that the trial court erred in deciding the pretrial motions to

quash his arrest and to suppress his statements. Specifically, defendant argues that probable

cause to arrest was lacking, so the trial court erred in denying the motion to quash his arrest.

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Defendant also argues that he did not voluntarily reinitiate the discussion with the police after

earlier invoking his right to counsel; moreover, his second waiver of the right to counsel was

likewise involuntary. Defendant also argues that the police tactics throughout his interrogation

rendered his statements involuntary. In addition, defendant argues that the police violated

section 103-2.1 of the Code (725 ILCS 5/103-2.1 (West 2012)) by failing to electronically record

his smoking breaks. Finally, defendant argues that the trial court erroneously refused his jury

instruction regarding causation and foreseeability. We consider each contention in turn.

¶ 57 A. Probable Cause to Arrest

¶ 58 Defendant initially argues that the trial court erred in denying his motion to quash his

arrest. In reviewing the trial court’s judgment on a motion to quash, we apply a bifurcated

standard. See People v. Gomez,

. We accord deference to the

trial court’s findings of historical fact and will disturb those findings only if they are against the

manifest weight of the evidence.

We review de novo the ultimate question of the outcome of

the motion to quash.

¶ 59 Defendant argues that the trial court erred in concluding that he was arrested at about

8:44 a.m., when he opened the door to the interview room, asked to leave, and was told that he

was not allowed to leave. Instead, according to defendant, he was placed under arrest at his

home. In any event, defendant maintains, he was under arrest no later than when he was first

placed into the interview room, at about 7:37 a.m. Defendant further contends that the police did

not have probable cause to arrest him at his home, when he was placed into the interview room,

or even at about 8:44 a.m. Defendant’s contentions thus raise two distinct questions that we

must answer: (1) when was defendant placed under arrest; and (2) did the police have probable

cause to arrest him when he was placed under arrest?

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¶ 60 As an initial matter, the State argues that defendant procedurally defaulted the issue of

when the arrest occurred. The State argues that defendant confined his arguments in the trial

court to whether probable cause existed for an arrest occurring at 8:44 a.m., thereby forfeiting

any contention that he was arrested when he was approached by the police at his home or when

he arrived at the police department. We disagree. A review of the record demonstrates that

defendant adequately argued that he was arrested at his home and, if not at his home, then upon

arriving at the police department and, in any event, no later than 8:44 a.m. By adopting

alternative arguments, defendant adequately preserved the issue of when the arrest occurred, and

we will address defendant’s arguments.

¶ 61 Turning to the question of when the arrest occurred, we note that the overarching

consideration is whether, under all of the circumstances present, a reasonable, innocent person

would conclude that he or she was not free to leave. Id. ¶ 58. This test is objective. Id. A

person’s decision to voluntarily accompany police officers means that he or she has not been

arrested. Id.

¶ 62 In considering whether an arrest has occurred, the court is to consider the following

factors: (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 whether the officers used handcuffs or drew their guns; (4) the officers’ intention; (5) the

defendant’s subjective belief or understanding; (6) whether the defendant was informed that he

or she could refuse to accompany the officers; (7) whether the defendant was transported in a

police car; (8) whether the defendant was informed that he or she was free to leave; (9) whether

the defendant was informed that he or she was under arrest; and (10) the language used by the

officers. Id. ¶ 59. No single factor is dispositive. Id.

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¶ 63 Pursuant to defendant’s arguments, there are three possible times at which the arrest

occurred: at his house, upon his arrival at the police department, and at 8:44 a.m., when he was

informed that he would not be allowed to leave. The parties agree that defendant was under

arrest no later than 8:44 a.m. Therefore, we analyze whether defendant was arrested at his home

or upon arriving at the department, in light of the factors set forth above as well as the overall

circumstances present.

¶ 64 Turning first to whether defendant was arrested at his home, we hold that he was not.

The first factor calls for a consideration of the time, place, length, mood, and mode of the

encounter between the defendant and the police. Based on the circumstances here, we conclude

that this factor weighs against arrest. At about 7:15 a.m., Harris and Balsitis knocked on the

door of defendant’s home, and his mother answered. The detectives explained that they were

investigating a fire that occurred at a party that defendant attended, and they asked to speak with

defendant. Defendant’s mother awakened defendant, and he conversed with the detectives. As

he was doing so, Malatia and Evoy arrived. Within about 15 minutes, defendant agreed to

accompany the police to the department to answer questions. Defendant asked to grab some

items and to use the bathroom, and the police agreed to this request. As defendant went into his

basement bedroom, two detectives followed and observed as he grabbed his wallet, footwear,

and keys. We note that, by following defendant unbidden, the detectives made their presence

somewhat more ominous and irresistible. However, they were in plain clothes, and it is clear

that their purpose was self-protection, to make sure that defendant did not grab a weapon along

with the other items he said he wished to retrieve. Thus, on balance, the time, place, and length

of the encounter were reasonable, and the mood was not confrontational.

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¶ 65 Defendant argues that the detectives controlled his movements as soon as he agreed that

he would accompany them to the police department. Defendant contends that the detectives

barged into the house uninvited, shadowed him into the basement, and demanded that he leave

open the bathroom door as he used it. The evidence adduced at the hearing does not support this

contention. Defendant points to descriptions used, such as, “the police allowed,” or “the police

permitted.” An examination of the relevant testimony, however, shows that Malatia responded

to a question that used “permitted.” (We later address his use of “allowed.”) Moreover, in

granting defendant’s requests, the police were accommodating defendant’s wishes rather than

demonstrating that he had no choice but to accede to their demands. Finally, as to the open

bathroom door, Harris stated that he did not tell defendant to leave it open and was in fact unsure

as to whether defendant left it open or closed. We therefore disagree with defendant’s

contentions in this regard and conclude that the first factor weighs against an arrest occurring at

the house.

¶ 66 The second factor, the number of police officers present, also weighs against an arrest at

the house. First, two detectives approached defendant’s house and asked to speak with

defendant. When defendant was informed of the police presence, he went to the porch to speak

with them. Two more detectives arrived as defendant was speaking to the original two, so

defendant was confronted by a total of four. This number is in line with the number in Gomez, in

which four officers approached the defendant at his house and asked the defendant to accompany

them. Id. ¶ 60. When defendant asked to grab his things, he was accompanied by one of the

detectives, with another nearby. The remaining two do not appear to have been in defendant’s

presence at that time. Finally, when defendant agreed to accompany the detectives, he got into

an unmarked police car with two of them. Thus, although there were four detectives present, it

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appears that defendant closely interacted with only two at most times. Based on this, we

conclude that the second factor weighs against an arrest occurring at defendant’s house.

¶ 67 Defendant argues that this case is like People v. Ocampo,

(2007). Defendant contends that Ocampo held that the presence of three police officers, who

stated that they “needed to talk” to the defendant, created an environment in which a reasonable

person would believe that he or she was in custody. Ocampo, however, involved a seizure made

by an officer who displayed his badge and stated that he needed to talk with the defendant.

. Here, by contrast, the police asked if defendant was willing to accompany them to the

police department to answer questions, and defendant agreed. This act of agreement serves to

distinguish Ocampo. See Gomez,

(a defendant’s voluntary

agreement to accompany police means that he or she was not arrested).

¶ 68 The third factor, indicia of formal arrest or restraint, weighs strongly against an arrest at

defendant’s home. First, there is no evidence in the record, and there is no argument by

defendant, that the police displayed their weapons, made physical contact with defendant, or

restrained defendant in any way, such as by using handcuffs or physically grabbing defendant.

Instead, the record shows that the police acquiesced to defendant’s requests to collect his

belongings and to use the bathroom. Thereafter, defendant agreed to accompany the detectives

to the police department, and he walked to the indicated vehicle and entered it on his own, with

no assistance from the detectives. Moreover, there is no indication that defendant was searched

before he entered the vehicle. Additionally, the vehicle defendant entered was not a marked

police vehicle, and the detectives were not in police uniforms. Therefore, this factor weighs

strongly against an arrest occurring at the home.

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¶ 69 The fourth factor, the officers’ intention, is neutral with regard to an arrest at defendant’s

home. The detectives had identified defendant as a person of interest in the arson, stemming

from their interviews of the partygoers. They had learned that defendant was upset, had a

significant and alarming argument with Morgan, and made some sort of threat to the partygoers

and possibly to Morgan a couple of hours before the fire. Thus, when they approached

defendant, the detectives reasonably believed that he might have information about the fire.

Nevertheless, the detectives simply asked defendant if he was willing to accompany them to the

police department to answer questions. We conclude that the detectives’ intention when they

approached him at his home was still to gather information rather than to effect an arrest.

However, their focus on defendant tends to counterbalance the information-gathering purpose to

some extent. Therefore, we conclude that this factor is neutral.

¶ 70 The fifth factor, the defendant’s subjective belief, weighs strongly against an arrest at

defendant’s home. Defendant agreed to accompany the detectives to the police department and

to answer their questions. “ ‘When one voluntarily accompanies police officers, he has not been

arrested and has not been “seized” in the fourth amendment sense.’ ” Id. ¶ 58, (quoting People v.

Redmond,

(2003)). In agreeing to accompany the detectives, defendant

could not have believed that he was arrested. This factor overwhelmingly weighs against an

arrest at defendant’s home.

¶ 71 The sixth factor, whether the defendant was informed that he could refuse to accompany

the police, also weighs against an arrest at the house. Implicit within defendant’s agreement to

accompany the detectives is the knowledge that he could also refuse to accompany them.

Accordingly, this factor weighs against an arrest.

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¶ 72 The seventh factor, whether the defendant was transported in a police car, weighs slightly

against an arrest. It is clear that the police transported defendant in an official car. The car,

however, was unmarked, and the record is unclear whether the rear seat was caged or otherwise

unusual. Further, defendant himself entered the car without any of the detectives placing him

there; the record shows that defendant went to the rear of the car, opened the door, and entered

the rear seat. Additionally, and more importantly, defendant’s agreement to accompany the

police significantly mitigates the effect of being transported in a police car. Therefore, we

conclude that this factor at least slightly weighs against an arrest occurring at the home.

¶ 73 Defendant cites People v. Vega,

(1990), for the proposition

that whether the defendant was given the choice of making his own arrangements to go to the

police department must be considered. We note, however, that in this case defendant made the

decision to accompany the police to the department; in Vega, by contrast, the defendant had

avoided police attempts to contact him and, when the police finally encountered him, he was not

given the opportunity to refuse to come with them.

. Here, in his initial contact with the

police, defendant was asked if he was willing to come with them to the department, and he

agreed to do so. See Gomez,

. Vega, therefore, is

distinguishable.

¶ 74 The eighth factor weighs against an arrest. This factor considers whether the police told

the defendant that he was free to leave. Defendant’s agreement to accompany the detectives

implicitly recognized the fact that defendant could have refused to go, which implies that he was

free to leave the encounter. Thus, the eighth factor weighs against an arrest occurring at

defendant’s home.

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¶ 75 The ninth factor, whether the defendant was informed that he was under arrest, strongly

weighs against an arrest. The record affirmatively demonstrates that, at the house, the detectives

never stated that defendant was under arrest. Rather, they asked defendant if he was willing to

accompany them to the department and answer questions. Defendant’s agreement to do so

indicates that he had a choice. Accordingly, this factor strongly weighs against an arrest

occurring at the house.

¶ 76 The tenth and final factor, the language the police used, also weighs against an arrest at

defendant’s home. The police asked defendant if he was willing to accompany them and to

answer questions at the police department. This is a far cry from any imperative or peremptory

language requiring defendant to come with them. Defendant argues, however, that the police

permitted him to retrieve certain personal items. “Permitted,” however, is simply the word used

by the prosecutor in the State’s examination of Malatia, not language volunteered by Malatia to

explain what occurred at defendant’s home. The impact of the word “permitted” is therefore

significantly less than defendant suggests. Defendant also argues that the police allowed him to

use the bathroom. This time, “allowed” was the word Malatia actually used in describing his

response to defendant’s statement that he needed to use the bathroom. Even so, we do not

believe that Malatia’s use of the word implies that the police were restricting defendant in any

fashion. Quite the opposite: had the police refused defendant’s request to use the bathroom, then

they would have been restricting defendant and overtly coercing him, by placing him in

discomfort and exercising their power over him. Instead, the detectives’ agreement to let

defendant use the bathroom suggests accommodation and concern for defendant’s physical

necessities, and it demonstrates their desire to make defendant physically comfortable. Thus, the

use of the words “permitted” and “allowed” does not have the coercive connotations defendant

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claims. Moreover, the words were used in summarizing what occurred, and not as the language

used in actually speaking with defendant. Thus, we conclude that there was nothing in the

language used by the detectives that suggested that defendant had no choice but to accompany

them to the police department. This factor weighs against an arrest occurring at the home.

¶ 77 Based on our consideration of the factors, we conclude that defendant was not arrested at

his home. We next turn to whether defendant was arrested upon his arrival at the police

department.

¶ 78 Defendant’s alternative contention is that he was arrested at about 7:37 a.m., when he

arrived at the police department and was placed into the interview room. For this analysis, we

will also consider whether defendant was arrested at any time during the initial questioning,

before defendant began answering any substantive questions about his actions during the day and

evening of Morgan’s party.

¶ 79 The first factor, the time, place, length, mood, and mode of the encounter, again weighs

against an arrest. Defendant agreed to accompany the detectives to the police department. The

time in transport was relatively brief. Likewise, the time spent in the preliminary questioning

was also relatively brief. This encounter occurred in an interview room at the police department,

but Malatia and Evoy were not confrontational and were professional and business-like. The

mood appeared to be fairly relaxed. We conclude, then, that the first factor weighs against an

arrest.

¶ 80 The second factor, the number of police officers present, also again weighs against an

arrest. When he arrived at the department, defendant was accompanied by Malatia and Evoy,

and these detectives conducted the initial encounters there. Although there was a large number

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of officers at the department, defendant does not appear to have interacted with them, only with

Malatia and Evoy. Thus, we conclude that this factor again weighs against an arrest.

¶ 81 The third factor, indicia of formal arrest, weighs strongly in favor of an arrest. When

defendant arrived at the police department, he was taken to the interview room and Malatia

patted him down and removed his wallet and phone, placing them in a cubby outside of the

interview room. Malatia explained that the pat-down was to make sure that defendant was not

armed, and Malatia also removed his own weapon so that no one in the interview room would be

armed. In spite of this explanation, the pat-down and confiscation of defendant’s wallet and

phone were clear indicia of an arrest. In addition, Malatia Mirandized defendant, which is

another clear indication of an arrest. Malatia attempted to soften the clear import of Mirandizing

defendant by explaining that it was standard procedure to read Miranda rights to every person

the police interviewed. Nevertheless, on these facts, we conclude that this constitutes a clear

indication that defendant was being arrested. On the other hand, Malatia did not subject

defendant to formal booking procedures or otherwise physically restrain defendant.

¶ 82 During this initial portion of the questioning, Malatia presented the Miranda warnings to

defendant, and defendant inquired whether he needed a lawyer. Malatia responded that it was up

to defendant to decide. Defendant then asked whether, if he decided to request an attorney, he

would still have to wait in the interview room. Malatia responded, “Yeah, obviously.”

Defendant argues that Malatia’s response clearly indicated that he was arrested at that time. We

note, however, that Malatia then followed up his response by asking defendant if he wanted to

speak with the police. Defendant reiterated that he was still willing to speak with them.

Nevertheless, this factor strongly weighs in favor of an arrest at the beginning the questioning.

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¶ 83 The fourth factor again is neutral. The detectives’ intention remained investigative and

not accusative. Defendant was being questioned about the fire, but other partygoers had also

been and were being questioned. The police had begun focusing on defendant, but they had not

determined to arrest defendant at this point. Thus this factor again is neutral.

¶ 84 The fifth factor, the defendant’s subjective belief, again strongly weighs against an arrest.

Defendant had agreed to accompany the detectives to the police department and to undergo

questioning there. During the initial questioning, defendant stated that he did not have to be

there or to answer questions, which indicates that defendant did not believe that he had yet been

arrested. Thus this factor weighs strongly against an arrest.

¶ 85 The next two factors do not apply. The sixth factor, whether the defendant was informed

that he or she could refuse to accompany the police, applies to transporting the defendant to the

police department, not to this phase of an encounter. Even if it applied, defendant agreed to

accompany the police. The seventh factor is the mode of transport, which also does not apply to

this phase of the encounter. Again, even if it applied, defendant agreed to be transported in the

police vehicle. Thus, if they applied, these factors would weigh against an arrest.

¶ 86 The eighth factor, whether the defendant was informed that he was free to leave, weighs

in favor of an arrest. As noted above, at the outset of the questioning, when defendant asked

whether he needed an attorney, Malatia told him that he needed to decide that for himself.

Defendant asked whether, if he decided to request an attorney, he would need to remain in the

interview room. Malatia replied, “Yeah, obviously.” Thus, not only was defendant not informed

that he was free to leave, he was informed that he was, in fact, not free to leave. This factor

strongly weighs in favor of an arrest.

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¶ 87 The ninth factor, whether the defendant was informed that he was under arrest, again

weighs against an arrest. There is nothing in the record indicating that any police officer told

defendant that he was under arrest.

¶ 88 The final factor, the language used by the police, weighs in favor of an arrest. As noted,

Malatia essentially told defendant that he was not free to leave. Thus, he conveyed to defendant

that defendant had no choice about remaining in the police department and answering questions.

This factor weighs in favor of an arrest.

¶ 89 The fact that we are to consider 10 factors does not mean that each factor will be given

equal weight in all circumstances. In other words, we cannot simply count those factors

weighing in favor of arrest and those weighing against arrest and see which is greater. Here, the

most significant factors are defendant’s treatment upon arriving at the police department, when

he was patted down and his possessions were removed from him, and Malatia’s statement that

defendant would have to remain in the interview room if he invoked his right to counsel. In our

view, these factors are sufficient to tip our calculus to the conclusion that, by around 7:45 a.m.,

defendant had been arrested. Accordingly, we hold that the trial court’s determination that

defendant was not arrested until 8:44 a.m. was in error. We now turn to the question of whether

there was probable cause to arrest at approximately 7:45 a.m.

¶ 90 Probable cause to arrest exists when the facts known to the police officer at the time of

the arrest are sufficient to lead a reasonably cautious person to believe that the defendant has

committed a crime. People v. Wear,

(2008). In determining the existence of

probable cause, we consider the totality of the circumstances at the time of the arrest.

.

Probable cause is not a technical concept; rather, it is a factual and practical concept, dealing

with the considerations of everyday life on which a reasonable and prudent person acts.

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Probable cause does not require proof beyond a reasonable doubt; rather it is the probability of

criminal activity, and probable cause can exist even though the evidence does not even support a

belief that it is more likely than not that the defendant committed a crime.

With these

principles in mind, we consider what the police had learned by about 7:45 a.m., which excludes

defendant’s statements from that time until about 8:44 a.m.

¶ 91 The record shows that, before defendant was contacted at his house, the police

investigation had determined that the fire that partially consumed the Morgan home had started

in Morgan’s car, parked near the garage. The fire department believed that the fire was the result

of arson, having found ashes in the car’s gasoline fill tube. Before the fire started, defendant had

attended a party at Morgan’s house. Defendant and Morgan had dated, but they either had

broken up or were in the process of breaking up. During the party, defendant became extremely

upset and engaged in a heated argument with Morgan, ostensibly over a necklace he had given

her. The argument was so heated that partygoers restrained defendant and calmed him down

before Schopa drove him away from the party. There was evidence suggesting that the argument

between defendant and Morgan turned physical, with defendant pushing Morgan and grabbing

her. Defendant called Morgan names while he was demanding the return of the necklace. At

some point, defendant stated to the partygoers that he hoped they would all die. There was a

suggestion that Morgan had been within earshot of this threat, but it was not entirely clear

whether she had heard the threat. After defendant had been driven away and before the fire

started, several partygoers observed someone in the shadows near Morgan’s home. They were

unable to identify the shadowy figure, but they all believed it to be defendant. Additionally, one

of the partygoers informed the police that defendant told him in a phone conversation that he was

returning to Morgan’s home. Finally, after defendant had dressed in the same clothes he wore to

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the party, the police observed that the clothes were visibly wet, apparently with sweat, as if

defendant had engaged in significant physical exertion, such as running from Morgan’s home to

his home. That morning, when the police arrived at defendant’s home, the temperature was

about 70 degrees.

¶ 92 Before 7:45 a.m., the police further learned that Sanchez had intervened in the argument

between defendant and Morgan, because Sanchez was afraid that defendant was about to strike

Morgan. Sanchez reported that he was a friend of Morgan’s and that he knew that defendant and

Morgan’s relationship was going so badly that she no longer wanted anything to do with

defendant. Additionally, also before 7:45 a.m., Melissa Czarnik, another friend of Morgan’s,

informed the police that defendant had tried to pull the necklace from Morgan’s neck but that

Czarnik got in between defendant and Morgan, trying to make defendant back off. Czarnik also

confirmed that defendant was wearing a light-colored T-shirt and baggy khaki shorts at the party.

¶ 93 We conclude that the evidence that the police had in hand before 7:45 a.m. provided

probable cause to arrest defendant at that time. In particular, defendant engaged in an argument

with Morgan that was so heated that other partygoers were afraid it would become physical,

prompting Sanchez to intervene; similarly, Czarnik placed herself in between defendant and

Morgan during the argument in an attempt to cause defendant to back off. Defendant directed

his statement, “I hope you all die,” at the partygoers, and he might have particularly directed it at

Morgan, although the record is unclear whether Morgan was present when the statement was

uttered. Shortly after the statement, Morgan’s car was set on fire in an act of arson. Partygoers

testified that they believed that defendant had returned to the party before the fire because they

saw a figure in the shadows, although no one was able to positively identify the shadowy figure.

Nevertheless, this belief was corroborated by the phone call that one of the partygoers received

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from defendant in which defendant stated that he was returning to the party. Finally, even

though it was not exceptionally warm that morning, the police observed that defendant’s clothes,

which matched Czarnik’s description of the clothes defendant wore to the party, were visibly

wet, apparently with sweat. This information was sufficient to engender a belief that there was a

probability that defendant committed the arson, even though it might not have engendered a

belief that it was more likely than not. See Wear,

(probable cause need not

rise to even a preponderance of the evidence; rather, the facts known at the time of the arrest

need only lead a reasonably cautious person to believe that the defendant has committed a

crime).

¶ 94 Defendant attempts to minimize the significance of any arguments in which he might

have engaged at the party, contending that the combination of young persons and alcohol at a

party often results in arguments and confrontations. This might be true in a broad sense, but it is

thankfully rare that an argument occurs at a party shortly before one of the participants in the

argument is seriously injured or killed. We cannot give much credence to defendant’s attempted

generalization in light of the facts of this particular case.

¶ 95 Defendant also argues that he cannot be tied to the scene of the fire after he had been

driven away. We disagree. Again, several partygoers observed a person hanging about in the

shadows near the Morgan home, and they believed that defendant had returned. Additionally,

defendant told one of the partygoers with whom he was friendly that he intended to return.

While this evidence is not conclusive standing alone, it does support and corroborate the

partygoers’ belief that defendant returned to the Morgan home after he was driven away and

before the fire began, and it is sufficient to rebut defendant’s contention.

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¶ 96 Defendant also challenges the significance of his threat that he hoped everyone at the

party would die, arguing that it was not made within Morgan’s hearing. We agree that the record

is not clear whether Morgan was present when the threat was made or even whether she heard

defendant make it. We note, however, that the evidence of who heard the threat need not be

precise, because the police were attempting to determine only whether there was reason to

believe that defendant had committed a crime. The utterance of a threat shortly before an arson

fire was started in Morgan’s car, whether the threat was directed at her or others, or whether

Morgan even heard the threat, bears directly upon that determination. We reject defendant’s

contention.

¶ 97 Defendant challenges Mohammed’s testimony that he observed a person matching

defendant’s description, arguing that Mohammed had also indicated that he believed the

individual to be Arabic. We do not believe that this evidence could be considered in determining

the existence of probable cause at 7:45 a.m., because Mohammed was interviewed between

10:30 and 11 a.m.

¶ 98 For the foregoing reasons, then, we hold that the trial court erred in determining that

defendant was arrested at 8:44 a.m.; rather, the police arrested defendant by about 7:45 a.m.,

shortly after defendant received his Miranda warnings. We also hold that the police had

probable cause to arrest defendant by about 7:45 a.m. As a result, we affirm the trial court’s

judgment denying defendant’s motion to quash his arrest.

¶ 99 B. Motion to Suppress Statements: Reinitiation

¶ 100 Defendant next challenges the trial court’s determination on his motion to suppress his

statements. Defendant contends that the trial court erred in concluding that he reinitiated the

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discussion about his case after the police once the police had finally honored his request to speak

with a lawyer and discontinued the interview.

¶ 101 As an initial matter, we note that we review the trial court’s judgment on a motion to

suppress with the same bifurcated standard. The trial court’s findings of fact are accorded

deference and will be disturbed only if they are against the manifest weight of the evidence.

People v. Miller,

(2009). We review de novo the ultimate question

posed by the legal challenge to the trial court’s ruling.

.

¶ 102 Regarding the invocation of the right to counsel, the Supreme Court held in Miranda v.

Arizona,

(1966), that, as a safeguard for the constitutional privilege against self-

incrimination, a person subjected to custodial interrogation is entitled to have counsel present

during the questioning. Miller,

. In Edwards v. Arizona,

(1981), the Supreme Court clarified that, after an accused has invoked this right, the

police cannot show a valid waiver of that right simply by demonstrating only that he responded

to further police-initiated custodial interrogation; an individual who has indicated that he wishes

to deal with the police only through counsel is not subject to further interrogation by the police

until after counsel has been made available to him, unless the accused himself initiates further

discussion with the police. Police will violate this rule if they approach the accused for further

questioning without first making counsel available. Miller,

. The upshot

is that any waiver of the right to counsel given in a discussion initiated by the police will be

presumed to be invalid, and any statements obtained pursuant to the presumptively invalid

waiver will be inadmissible in the State’s case-in-chief.

¶ 103 Analytically, when determining the admissibility of any statement procured after the

defendant has invoked his right to have counsel present during a custodial interrogation, we

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conduct a two-part inquiry.

The first step is to determine whether the defendant or the police

reinitiated discussion after the defendant invoked his right to counsel. Id. at 1064-65. This

entails determining from whence the impetus for the additional discussion came: if from the

police, then Edwards bars the admissibility of statements made in response to the further

interrogation; if from the defendant, then we proceed to the second step. Id. at 1065. The second

step is to determine whether, in light of the totality of the circumstances, including the fact that

the defendant reopened the discussion, the defendant voluntarily, knowingly, and intelligently

waived his right to the presence of counsel during the further custodial interrogation. Id.

¶ 104 The parties agree with the trial court’s determination that, at 8:18 a.m., defendant invoked

his right to have counsel present during the custodial interrogation. Additionally, the parties do

not dispute that the police did not honor this invocation and continued to subject defendant to

custodial interrogation until about 10:26 a.m., at which time questioning ceased and Malatia and

Evoy left defendant alone in the interview room. At about 11:26 a.m., defendant was taken

outside for his second smoking break and had a conversation with Malatia. During the second

smoking break, according to Malatia, defendant asked Malatia and Evoy, as many as five times,

“what was going on with him and what was happening with the investigation.” The detectives

told defendant that they could not speak with him about the investigation, because he had

requested an attorney. Defendant then asked what he needed to do in order to speak with them

again. Malatia told defendant that he would have to formally acknowledge that he had

approached the detectives to talk about the case, that the detectives would have to readminister

Miranda warnings, and that defendant would have to formally waive his rights again. According

to Malatia, defendant agreed, they entered the interview room at about 11:36 a.m., defendant

stated that he wished to speak with the detectives again, and defendant executed another form

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waiving his rights and a form acknowledging that he had reinitiated the discussion with the

detectives.

¶ 105 According to defendant, he asked for the second smoking break. Once outside, he asked

when he could call his lawyer and go home. According to defendant, the detectives told him that

he could go home only if he first decided to talk to them again. Defendant further explained that

the detectives told him what to say in front of the camera. When he was returned to the

interview room, he followed the script he received during the second smoking break, stating that

he approached the detectives to talk about the case again and executing the forms with which he

was presented. Thus, defendant concludes, the police orchestrated the events so that it was

actually they and not defendant who provided the impetus for the reinitiation of the discussion

about the case. According to defendant, they studiously ignored all of his invocations of his right

to have counsel present and groomed defendant to expect that what he said would not matter.

¶ 106 The trial court credited the detectives’ version of events. Key to the trial court’s

determination was the fact that, despite defendant’s claim that the detectives promised that he

would be able to go home, defendant never raised the issue of that promise after he had done his

part. This is borne out in the record. Accordingly, we hold that the trial court’s factual

determination that defendant reinitiated the discussion with Malatia and Evoy was not against the

manifest weight of the evidence. See Miller,

(the trial court’s findings

of fact are accorded deference and will be disturbed only if they are against the manifest weight

of the evidence).

¶ 107 In support of his position, defendant cites People v. Trotter,

(1993), for the proposition that police badgering will result in the determination that a reinitiation

of discussion about the case was the product of coercion. We believe that Trotter is

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distinguishable. In the first place, Trotter held that it was the police who had reinitiated the

discussion. Id. at 524. Additionally, Trotter is factually distinguishable. In Trotter, after the

defendant had invoked his right to counsel, an assistant State’s Attorney asked the defendant if

he wished to give a statement. After another 1½ hours, a police officer stated that the

defendant’s attorney had not shown up and he asked the defendant to make a statement. These

actions of asking the defendant to speak after having invoked his right to counsel constituted

badgering. Id. at 525. Here, by contrast, once defendant’s invocation of his right to counsel was

recognized, questioning ceased. After that point, no one asked defendant to make a statement

before defendant reinitiated the discussion about the case. In fact, Malatia and Evoy refused to

speak with defendant about the case until after defendant stated, on camera in the interview

room, that he was reinitiating the questioning and had once again waived his right to counsel.

Accordingly, Trotter, with its overt manipulation of the defendant through badgering, is

distinguishable.

¶ 108 Moreover, in Trotter, the defendant’s invocation of the right to counsel was ostensibly

observed, yet the police returned to the defendant and badgered him to make a statement. Thus,

Trotter presents a somewhat different issue than is present here, where the police did not even

ostensibly observe defendant’s invocation and continued the questioning as if defendant had not

even tried to invoke his right to counsel. Trotter therefore offers no insight regarding the effect

of steamrolling over a defendant’s invocations of the right to counsel before finally observing

one and how that might affect the voluntariness of a subsequent waiver of the right to counsel;

rather, it considers the act of paying lip service to an invocation coupled with repeated attempts

to question the defendant again. For this reason too, we find Trotter to offer little guidance in

this case.

- 38 -

¶ 109 Defendant also cites Dorsey v. United States,

(D.C. 2013) (en banc),

for the proposition that police misconduct, such as ignoring a defendant’s invocation of his

Miranda rights, coupled with badgering, can serve to undermine the defendant’s will so as to

invalidate the defendant’s reinitiation of the discussion. Dorsey recounts a particularly egregious

example of police misconduct. Beginning at about 7:30 p.m., the defendant was subjected to

relentless interrogation despite his unambiguous assertion of his right to remain silent, at about

11:10 p.m., and, at about 2:51 a.m. the next morning, his unambiguous invocation of his right to

counsel.

. Despite these invocations, the police continued to question him without

significant let up until about 4:45 a.m., when they left him alone in the interrogation room,

handcuffed to the table.

. At 8:06 a.m., the questioning resumed and continued

until 8:21 a.m., at which point the defendant was taken to a holding cell.

. About

seven to eight hours later, between 3:30 and 4:30 p.m., the defendant called out to speak with the

police.

. The defendant was taken to the interrogation room, was not given Miranda

warnings, and was not asked if he would waive his rights.

. The defendant then

proceeded to confess.

.

¶ 110 The court concluded that the defendant had not reinitiated the discussion with the police,

based on his delayed response to the improper and continued interrogation that followed his

invocations of his rights.

. The court held that the police conduct constituted

“badgering with a vengeance,” and key in its decision were the facts that the defendant had not

been readvised of his Miranda rights after he requested to speak with the police again and that

his confession mirrored the details included in the “post-invocation badgering.”

.

Alternatively, the court held that, even if the defendant reinitiated the discussion with the police,

he did not validly waive his rights, because the police did not readvise him of his rights and

- 39 -

obtain an express waiver. Id. at 1200. This, coupled with the demonstrated unwillingness to

observe the defendant’s invocation of his rights meant that the prosecutor faced an uphill battle

to demonstrate that the defendant knowingly, intelligently, and voluntarily waived those rights.

Id. at 1201.

¶ 111 Our reading of Dorsey suggests that police misconduct by failing to honor an invocation

of Miranda rights may render invalid a defendant’s reinitiation of the discussion with police.

However, we note that Dorsey is an extreme example of police misconduct. The police

interrogation in that case never ceased after the defendant invoked his rights. After the defendant

was informed of his Miranda rights, he was effectively interrogated for 11 hours with only brief

respites; the 11-hour interrogation continued for 8 hours after his invocation of his right to

remain silent and for 6 hours after his invocation of his right to counsel. A lengthy break was

taken and the defendant asked to speak with the police, but he was never again advised of his

Miranda rights and his confession mirrored many of the points used by the police as they

continually badgered him to confess.

¶ 112 Thus, we believe that Dorsey is significantly distinguishable from this case. Importantly,

in Dorsey the police never honored or observed the defendant’s invocation of his rights; here,

while Malatia and Evoy continued to question defendant after his 8:18 a.m. invocation of his

right to counsel, at 10:26 a.m. they finally honored defendant’s repeated invocation. Thus, in

Dorsey, unlike in this case, the defendant’s rights were altogether ignored. Additionally, the

defendant in Dorsey was subjected to 12 hours of continual interrogation, about 8 of which

occurred after the defendant had invoked his rights. Here, by contrast, defendant was subjected

to about three hours of questioning, although over two hours occurred after the 8:18 a.m.

invocation of his right to counsel. Finally, and perhaps most significantly, in Dorsey, the police

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did not readminister Miranda warnings to the defendant, and the defendant did not expressly

waive his rights after he had asked to speak with the police. Here, by contrast, after defendant

reinitiated the discussion with the police, Malatia and Evoy once again administered Miranda

warnings and defendant expressly waived his rights. Thus, while Dorsey provides helpful

guidance in understanding defendant’s contentions, it is nevertheless distinguishable.

¶ 113 Accordingly, we hold that the trial court’s determination that defendant voluntarily

reinitiated the discussion with the police was not against the manifest weight of the evidence.

Because defendant reinitiated the discussion, we hold that the trial court did not err in denying

defendant’s motion to suppress on this point.

¶ 114 C. Whether Defendant’s Statements were Voluntary, Knowing, and Intelligent

¶ 115 Defendant next argues that his statements following the reinitiation of the discussion with

the police were not given voluntarily, knowingly, and intelligently. Instead, the detectives’

refusal to pay any attention to his attempts to invoke his right to counsel caused defendant to

believe that he had no choice but to answer their questions. Defendant thus argues that the

statements should have been suppressed.

¶ 116 The test for voluntariness is whether the defendant made the decision freely, without

compulsion or inducement, or whether the defendant’s will was overborne at the relevant time.

People v. Gilliam,

(1996). To implement this test, we consider the totality of

the circumstances surrounding the statements, including the defendant’s age, intelligence,

education, experience, and physical condition at the relevant time; the duration of the

interrogation; the presence of Miranda warnings; the presence of any physical or mental abuse;

and the legality and duration of the detention. People v. Willis,

(2005). The

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trial court’s decision regarding voluntariness presents an issue of fact, and we will not disturb it

unless it was against the manifest weight of the evidence.

¶ 117 Defendant was 23 years old at the time of the offense. He had graduated from high

school and attended some college. Defendant had not had significant experience with law

enforcement. Defendant had estimated that he had 15 beers between 6 p.m. the previous evening

and around 2 a.m. that morning and, at about 7:48 a.m., he asserted that he had a headache. At

that time, defendant denied that he was intoxicated, but he said that he would not want to drive.

However, defendant’s speech was clear and he was apparently able to comprehend and

appropriately respond to the detectives’ questions. He appeared otherwise alert and oriented to

his situation. These factors weigh in favor of voluntariness.

¶ 118 The duration of the interrogation had been relatively brief. By the 11:36 a.m. waiver, he

had been questioned for about three hours, with a break from about 10:30 to 11:30 a.m.

Defendant had been at the police department for a total of four hours when he made the 11:36

a.m. waiver. We note that significantly longer interrogations have been deemed not to render

defendants’ statements involuntary. For example, in People v. House,

(1990), the defendant had been held in an interview room undergoing questioning for 25 hours

before he made his first inculpatory statement. The court held that that amount of time was

insufficient (under all of the circumstances) to render the defendant’s statement involuntary.

Here, the three hours of interrogation are less than one-sixth the time in House. This factor

weighs in favor of voluntariness.

¶ 119 However, we note that about two hours of defendant’s interrogation were conducted after

defendant had invoked his right to counsel. This weighs against voluntariness. On the other

hand, as mentioned above, the police eventually, albeit belatedly, honored defendant’s

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invocation of his right to counsel, and this tends to mitigate the illegality of the interrogation. On

balance, the interrogation in violation of defendant’s right to counsel tips this factor slightly

against voluntariness.

¶ 120 The presence of Miranda warnings is a neutral factor under the circumstances of this

case. At the outset, around 7:37 a.m., defendant received Miranda warnings. However, his

invocation of his right to counsel was not immediately honored, and this tends to undercut the

presence of the warnings. Nevertheless, even though the interrogation proceeded for two hours

before it was stopped, the police did honor defendant’s invocation of his right to counsel. When

they stopped, the police advised defendant that they were doing so because he had invoked his

right to counsel. After defendant reinitiated the discussions with Malatia and Evoy, he was again

Mirandized. Thus, this factor is neutral.

¶ 121 Defendant appeared to be in adequate condition. The detectives did not hit defendant or

otherwise physically abuse defendant. He was allowed to use the restroom and to smoke

cigarettes when he asked to do so. The questioning became intense, but the police did not

subject defendant to mental abuse. Defendant had a headache and perhaps a hangover, but he

was not incapacitated as a result. On balance, this factor favors voluntariness.

¶ 122 Finally, defendant was legally detained. When he was arrested, the police had probable

cause to believe that he had committed a crime. The total detention preceding the 11:36 a.m.

waiver was relatively brief. This factor weighs in favor of voluntariness.

¶ 123 Based on our review of the circumstances, we conclude that defendant voluntarily gave

his statements following the 11:36 a.m. waiver. Because defendant reinitiated the discussion

with Malatia and Evoy and his subsequent statements were voluntarily given, we affirm the trial

court’s judgment on this point.

- 43 -

¶ 124 Defendant argues that his physical condition was poor when he made the waiver. We

disagree. Although defendant stated that he had a headache at 7:48 a.m., he was able to answer

questions and did not indicate that he was feeling too ill to continue answering questions.

Further, in the recordings of the interrogation, he appears to be in adequate physical condition.

He is not shaking, dry heaving, cradling his head, or giving any other indications that he feels

unwell.

¶ 125 Defendant argues that the detectives’ ignoring his attempts to invoke his right to counsel

overbore his will to resist and rendered involuntary his statements after the reinitiation. While

this is a concern, it was mitigated when the police stopped the questioning, telling him that they

were doing so because he had asked for counsel. Thus, while continuing the interrogation after

his 8:18 a.m. request for counsel arguably led defendant to expect that the police were never

going to stop the questioning, the other side of the coin is that, at 10:26 a.m., the police did stop

the questioning at defendant’s insistence on his right to counsel, and this should have led

defendant to expect that he had been and would be allowed to exercise his rights. Moreover,

when defendant attempted to speak about the case during the second smoking break, Malatia and

Evoy flatly refused to engage defendant, explaining that they could not talk about the case with

him because he had invoked his right to counsel. This exchange should have further informed

defendant that the police were serious about honoring his right to counsel, even though it might

not have been enough to erase the earlier misconduct. In our view, then, the police significantly

rectified their earlier misconduct. Accordingly, while a concern, the misconduct is not

dispositive.

¶ 126 Defendant argues that, at 11:36 a.m., he stated, “I’ll talk to you,” not that he wanted to

talk with the police again. This argument relies on a truncated exchange between defendant and

- 44 -

Evoy. Evoy first asked defendant if he wanted to talk to him and Malatia again, and defendant

responded, “Yeah.” After going over some other details about what had been discussed during

the second smoking break, Evoy then asked, “So now you want to talk to us,” to which defendant

responded, “I’ll talk to you.” Contrary to defendant’s contention, a look at the full exchange

demonstrates both his desire and his willingness to speak with Malatia and Evoy. We therefore

reject defendant’s contention that it evidences a belief that he had no choice.

¶ 127 Defendant argues that the police induced his statements by falsely promising him

leniency and benefits if he agreed to relinquish his right to counsel and speak with them. We

disagree. We discern no promises of leniency; rather, the detectives were applying

psychological pressure to defendant in an unobjectionable way. Defendant also points to

statements the detectives made after he had waived his Miranda rights. Because they came after

this waiver, the purported blandishments could not have influenced defendant to waive his rights.

Instead, the detectives’ statements were only examples of the psychological pressure being

brought to bear on defendant and were not improper inducements or threats. While promises of

leniency or threats may properly be considered, we do not believe that the statements of which

defendant complains rise to the level of improper inducements or threats, thereby undermining

the voluntariness of defendant’s statements. Instead, the detectives’ statements were legitimate

interrogational devices, and we reject defendant’s contention.

¶ 128 Turning to whether his statements were given knowingly and intelligently, defendant

argues that nothing in the record shows that he understood his rights; instead, the police would

keep hammering away until defendant gave them what they demanded. When considering

whether statements were made knowingly and intelligently, we consider the specific facts and

- 45 -

circumstances, including the defendant’s background, experience, and conduct. People v. Goins,

.

¶ 129 Defendant relies on Dorsey, particularly its holding that incessant police badgering left

the record in that case bereft of any evidence that showed that the defendant was able to

intelligently exercise his rights during the interrogation. Dorsey, however, is much narrower in

its holding by virtue of the overwhelmingly egregious nature of the police misconduct. Properly

read, the circumstances present in Dorsey could lead one to extract the principle defendant seeks

to extract. However, under much less egregious circumstances than those in Dorsey, the court’s

reasoning loses its impetus. Dorsey held that the incessant badgering and refusal to honor any of

the defendant’s attempts to invoke his rights taught the defendant that the police would not stop

questioning him until the defendant gave up whatever the police wanted. Dorsey,

. By relentlessly reinforcing this concept, the police blotted out any knowledge that the

defendant might have possessed about his rights. The court concluded that nothing in the record

showed that the defendant “understood [that] he would not be penalized for exercising his rights

or rewarded for relinquishing them.”

. Dorsey’s holding is, however, based on the

specific and dramatic circumstances present in that case.

¶ 130 By contrast, here, defendant was initially steamrolled by the detectives’ ignoring his

requests to speak to his attorney, to make a phone call, and simply to be silent and not speak to

them at all. However, at 10:26 a.m., the police stopped their interrogation, telling defendant that

they could no longer discuss the case, because he had asked to speak to his attorney. They

continued to honor defendant’s rights when he attempted to discuss the case during the second

smoking break. Thus, unlike in Dorsey, the police conduct was equivocal, initially leading

defendant to expect that he would be ignored, but, in the end, informing him that his rights would

- 46 -

be respected. Moreover, it did not occur during the course of more than 12 hours of

interrogation followed by a further 7 or 8 hours of isolation as the defendant was left alone in a

holding cell. Id. at 1178-87. These lapses were reinforced in Dorsey, because the police there

did not give or readminister Miranda warnings to the defendant. Id. at 1186-87. Here, by

contrast, defendant received Miranda warnings at the outset of the interrogation, and they were

readministered when defendant reinitiated the discussion with the police. Based on this record,

we cannot conclude that Dorsey, with its extreme and egregious police misconduct, applies. We

do not minimize the police misconduct that occurred here, but it simply rose to nowhere near the

level in Dorsey. Accordingly, we do not agree with defendant that Dorsey compels us to

conclude that the police misconduct overbore defendant’s will so as to deprive him of the

opportunity to knowingly and intelligently relinquish his rights and give statements to the police.

¶ 131 In addition, we note that nothing in the record leads us to conclude that defendant was

unable to or did not comprehend the rights incorporated in the Miranda warnings. Defendant

agreed that he understood the Miranda warnings, and he also appeared to be aware of and

comprehend the process in which he was involved.

¶ 132 Accordingly, we conclude that defendant’s statements were given voluntarily, knowingly,

and intelligently. As a result, we hold that the trial court did not err in denying defendant’s

motion to suppress his statements.

¶ 133 D. Violation of Section 103-2.1 of the Code

¶ 134 Defendant next argues that the police violated section 103-2.1 of the Code (725 ILCS

5/103-2.1 (West 2012)), which requires that all interrogations in a murder case be recorded.

Specifically, defendant accuses Malatia and Evoy of taking defendant to a video blind spot for

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his smoking breaks and continuing the questioning. Defendant urges us to suppress his

statements made during or after the breaks as a result of the violation.

¶ 135 Section 103-2.1 provides, pertinently:

“(b) An oral, written, or sign language statement of an accused made as a result of

a custodial interrogation at a police station or other place of detention shall be presumed

to be inadmissible as evidence against the accused in any criminal proceeding brought

under[, among others, section 9-1 of the Criminal Code of 2012 (720 ILCS 5/9-1 (West

2012))] unless:

(1) an electronic recording is made of the custodial interrogation; and

(2) the recording is substantially accurate and not intentionally altered.

***

***

(d) If the court finds, by a preponderance of the evidence, that the defendant was

subjected to a custodial interrogation in violation of this Section, then any statements

made by the defendant during or following that non-recorded custodial interrogation,

even if otherwise in compliance with this Section, are presumed to be inadmissible in any

criminal proceeding against the defendant except for purposes of impeachment.

(e) Nothing in this Section precludes the admission *** (ii) of a statement made

during a custodial interrogation that was not recorded as required by this Section, because

electronic recording was not feasible ***. The State shall bear the burden of proving, by

a preponderance of the evidence that one of the exceptions described in this subsection

(e) is applicable. Nothing in this Section precludes the admission of a statement,

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otherwise inadmissible under this Section, that is used only for impeachment and not as

substantive evidence.

(f) The 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.”

¶ 136 Defendant argues that, because the first four smoking breaks constituted custodial

interrogation during a murder investigation (which triggers the recording requirement of section

103-2.1) and were unrecorded, all of his statements made during or after those smoking breaks

must be suppressed by operation of section 103-2.1. We disagree.

¶ 137 As an initial matter, defendant has forfeited our review of this issue. In order to preserve

an issue for review, a defendant must make a timely objection at trial and raise the issue in a

written posttrial motion. People v. Enoch,

(1988). While defendant

included this issue in his posttrial motion, he did not raise it before trial as part of his motion to

suppress or at trial. Consequently, the issue is forfeited.

¶ 138 Defendant argues that we may nevertheless consider the issue pursuant to the doctrine of

plain error. The plain-error doctrine allows a court to review an otherwise forfeited error under

two circumstances: (1) a clear and obvious error occurred and the evidence was closely balanced

such that the error might have tipped the scales of justice against the defendant; or, (2) regardless

of the closeness of the evidence, a clear and obvious error occurred that was so serious that it

affected the fairness of the trial and challenged the integrity of the judicial process. People v.

Sandifer,

. The defendant bears the burden of persuasion in

- 49 -

establishing the existence of plain error.

The first step of a plain-error analysis is to

determine whether error occurred; without error, there cannot be plain error.

¶ 139 Defendant argues that each of the first four smoking breaks occurred in a blind spot, not

covered by the video surveillance system monitoring the area outside of and surrounding the

police department. According to defendant, because none of the first four smoking breaks were

electronically recorded as required by section 103-2.1, all statements made during or after any of

the first four smoking breaks are presumptively inadmissible. Defendant contends that the State

failed to demonstrate by a preponderance of the evidence that any of the statements given during

or after the smoking breaks were voluntary and reliable.

¶ 140 As an initial matter, defendant overlooks that, by its very terms, section 103-2.1 applies

only to “custodial interrogation.” 725 ILCS 5/103-2.1 (West 2012). Defendant presupposes that

the smoking breaks constituted custodial interrogation that was required to be electronically

recorded. However, the trial court determined, as a matter of fact, that the second smoking break

did not involve any questioning by Malatia or Evoy. Based on our review of the record, we

cannot say that this factual determination was against the manifest weight of the evidence.

Gomez,

. This factual determination suggests that section 103-

2.1 would simply not apply to the second smoking break. Indeed, the trial court accepted the

police witnesses’ versions of all of the smoking breaks (and we cannot say that these

determinations were against the manifest weight of the evidence), and these factual findings

would seem to remove the breaks from the ambit of section 103-2.1. Defendant does not address

the effect of these factual findings with respect to the second smoking break (or any of the

smoking breaks, for that matter) on our analysis under section 103-2.1. For this reason, then,

defendant’s argument fails almost by definition.

- 50 -

¶ 141 Notwithstanding the issue of whether section 103-2.1 even applies in light of the trial

court’s factual findings, we address defendant’s argument. First and foremost, defendant’s

argument is logically flawed. Defendant complains only about the first four smoking breaks

being unrecorded, but we note that the fifth smoking break was recorded and that the recording

consists only of visual images. The record thus shows that the outside surveillance system was

unable to capture any sound. Thus, even had the first four smoking breaks occurred in a location

that was under the eye of the outside surveillance system, the only thing the outside surveillance

system could have shown was that the detectives were not physically abusing defendant (and

even this could be questioned, because hypothetically the detectives could have carried out some

physical abuse that did not involve any overt gestures, such as bending or breaking a finger

under the guise of guiding defendant along while holding defendant’s hand behind his back). 1

Without audio, there would be no way to determine, apart from the testimony of defendant and

the detectives, what had been said and whether it was improper. The recording would have been

worthless to prove or disprove defendant’s contentions.

¶ 142 Second, defendant essentially makes a whipsaw argument. The smoking breaks were

unrecorded, so the police should not have taken him outside where the smoking breaks could not

be recorded. However, had the police kept him inside, defendant would complain that he was

coerced, because the police would not let him smoke and he was suffering so badly from nicotine

withdrawal that he would have said anything to be able to smoke a cigarette. Thus, under

1 We emphatically note that defendant does not allege that any physical abuse occurred

during the smoking breaks.

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defendant’s argument, the police were damned if they did and damned if they did not. This,

then, is a fundamentally unfair argument.

¶ 143 Finally, we have concluded that defendant’s statements following the second smoking

break were made voluntarily pursuant to a knowing and intelligent waiver of his right to counsel.

Accordingly, we hold that the State overcame the presumption of inadmissibility by

demonstrating, by at least a preponderance of the evidence, that the complained-of statements

were given voluntarily and were reliable. 725 ILCS 5/103-2.1(f) (West 2012).

¶ 144 Additionally, we believe that the State has also demonstrated that the electronic recording

of the smoking breaks was not feasible. 725 ILCS 5/103-2.1(e)(ii) (West 2012). As noted, even

had the first four smoking breaks been recorded by the outside surveillance system, they would

have been silent and therefore useless to show what had been said during them. The court would

have been required, as actually occurred, to resolve what occurred during the smoking breaks

through the testimony of the participants. We conclude that the State successfully demonstrated

that a recording of the smoking breaks would not have been feasible.

¶ 145 Defendant cites People v. Harris,

, for the proposition that a

statement given in violation of section 103-2.1 must be suppressed. We find Harris to be

distinguishable. In that case, the court held that the defendant’s statement was not voluntary. Id.

¶ 64. Here, we have concluded that defendant’s statements were voluntary. Accordingly, Harris

is distinguishable.

¶ 146 Defendant also cites People v. Richardson,

, for the same

proposition. Richardson is also distinguishable. There, the interrogation occurred before the

passage of section 103-2.1. Id. ¶ 164. Thus, Richardson offers no guidance.

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¶ 147 Defendant cites People v. Clayton,

, to illustrate the proper

application of section 103-2.1. As in Harris, however, the court determined that the defendant’s

statements were not voluntary, but were the product of the coercion inherent in custodial

interrogation. Id. ¶ 45. Here, defendant’s statements were voluntary, and this serves to

distinguish Clayton.

¶ 148 Defendant has failed to show the existence of error under section 103-2.1. He therefore

cannot show the existence of plain error. Accordingly, we must honor defendant’s forfeiture of

this issue.

¶ 149 E. Refusal of Defendant’s Jury Instruction

¶ 150 Defendant last contends that the trial court erroneously refused his proposed jury

instruction on the foreseeability of the events that led to Morgan’s death. Specifically, defendant

offered IPI Criminal 4th No. 7.15A (Supp. 2011) in the following form:

“A person commits the offense of first degree murder when he commits the

offense of aggravated arson or arson, and the death of an individual results as a direct and

foreseeable consequence of a chain of events set into motion by his commission of the

offense of aggravated arson or arson.

It is immaterial whether the killing is intentional or accidental.”

Defendant argues that the manner of Morgan’s death was not foreseeable; rather, it was a

combination of unforeseeable circumstances that resulted in her home becoming engulfed in

flames. In particular, defendant notes that he did not use an accelerant to light Morgan’s car on

fire, so it would have been extremely unlikely to involve the house in the fire. According to

defendant, the house caught fire only because the garage door had been left open, the door to the

mudroom had been left open, and a powerful all-house fan in the attic drew the smoke and

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flames from the car into the house. Defendant argues that nothing in the jury instructions

conveyed to the jury the requirement that, in order for him to be found guilty, Morgan’s death

had to be a foreseeable consequence of defendant’s actions.

¶ 151 The purpose of jury instructions is to provide the jury with the correct legal principles to

apply to the evidence in order to reach a proper conclusion based on the applicable law and the

evidence presented. People v. Parker,

(2006). We must determine whether

the instructions fairly, fully, and comprehensively informed the jury of the relevant legal

principles.

. We must construe the jury instructions as a whole rather than reading

them in isolation.

Where the issue presented is whether the jury instructions accurately

conveyed to the jury the applicable law, our review is de novo.

¶ 152 Here, the trial court refused defendant’s proffer of IPI Criminal 4th No. 7.15A (Supp.

2011) and instructed the jury according to Illinois Pattern Jury Instructions, Criminal, Nos. 7.01,

7.02 (4th ed. 2000) (hereinafter, IPI Criminal 4th Nos. 7.01, 7.02). The instruction based on IPI

Criminal 4th No. 7.01 stated: “A person commits the offense of first degree murder when he kills

an individual if, in performing the acts which cause the death, he is committing the offense of

Aggravated Arson or Arson.” The instruction based on IPI Criminal 4th No. 7.02 provided:

“To sustain the charge of first degree murder, the State must prove the following

propositions:

First Proposition: That the defendant performed the acts which caused the death

of Paula Morgan; and

Second Proposition: That when the defendant did so, he was committing the

offense of Aggravated Arson or Arson.

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If you find from your consideration of all the evidence that each one of these

propositions has been proved beyond a reasonable doubt, you should find the defendant

guilty.

If you find from your consideration of all the evidence that any one of these

propositions has not been proved beyond a reasonable doubt, you should find the

defendant not guilty.”

Defendant contends that these jury instructions were not accurate, because they did not address

whether it was foreseeable that a fire started in Morgan’s car would spread to the occupied

house.

¶ 153 In Illinois, where a death is caused by a third party, the felony-murder rule follows the

proximate-cause theory, meaning that liability for murder will attach for any death proximately

resulting from the unlawful activity, even if the death is caused by one resisting the crime.

People v. Lowery,

(1997). The proximate-cause theory of liability is the

minority rule; the agency theory of liability is the majority rule.

. Under the agency

theory, liability for a felony murder does not extend to a killing, although growing out of the

commission of the felony, if it is directly attributable to the act of one other than the defendant or

those associated with the defendant in the unlawful enterprise.

¶ 154 However, it is also true that felony murder is based on strict liability. People v. Causey,

(2003). The State is not required to prove that the defendant could

foresee the death or that the defendant intended to commit murder; the State need show only that

the defendant intended to commit the underlying felony.

¶ 155 At first blush, it would appear that the proximate-cause theory contradicts the statement

that felony murder is based on strict liability. However, a closer examination of Lowery

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demonstrates that the proximate-cause theory (as well as the agency theory) is invoked when the

death was caused by a third party. In Lowery, the defendant was liable for felony murder

because the intended victim obtained the defendant’s gun and shot at the defendant, striking a

passerby. Lowery,

. The proximate-cause theory works to attribute the death to

the defendant if that death was foreseeable.

. The defendant’s act of attempting to rob

the victim at gunpoint set in motion the sequence of events that resulted when the victim

obtained the gun from the defendant and fired, and this result was foreseeable.

.

¶ 156 In contrast, the defendant in Causey participated in a beating and robbery of the victim,

who died as a result of the beating. Causey,

. The court expressly held

that, in a felony murder, the State was not required to prove that the death of the victim was

foreseeable where the death was caused by the defendant or a codefendant for whom the

defendant was responsible.

. This makes sense. If the death is caused by one

outside of the criminal actors, then it would be unjust to impose liability if the mechanism of

death was so remote as to be unforeseeable; whereas it remains just to impose liability for an act

directly committed by the defendant that caused the death of the victim, even if the precise

mechanism of death was not envisioned by the defendant as he was committing the underlying

crime.

¶ 157 Accordingly, the foreseeability qualification embodied in IPI Criminal 4th No. 7.15A

(Supp. 2011) has been required only in cases in which a third party outside of the criminal actors

caused the death. See People v. Hudson,

(2006) (cofelon killed by off-duty

police officer; jury instructed on reasonable foreseeability); People v. Klebanowski,

(2006) (cofelon being killed by off-duty police officer was foreseeable consequence of

the defendant’s acts); People v. Nash,

, ¶¶ 25-28 (IPI Criminal 4th No.

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.15A (Supp. 2011) was properly delivered to the jury where the cofelon had been shot by a

police officer). Defendant cites no case in which IPI Criminal 4th No. 7.15A (Supp. 2011) was

delivered to the jury where the death was caused by the defendant; likewise, our research has

found no such case.

¶ 158 We also note that the comments to IPI Criminal 4th No. 7.15A (Supp. 2011) suggest that

it is to be given in situations “where the defendant did not perform the acts which caused the

death of the deceased.” IPI Criminal 4th No. 7.15A (Supp. 2011), Committee Comments. Based

on the fact that the comments suggest that IPI Criminal 4th No. 7.15A (Supp. 2011) does not

apply to a situation in which the defendant is alleged to have committed the act that resulted in

the death of the deceased, and the fact that the only cases we have been able to find in which IPI

Criminal 4th No. 7.15A (Supp. 2011) has been used are those in which the defendant did not

perform the act that caused the death of the deceased, we hold that the trial court did not err in

refusing defendant’s proposed jury instruction.

¶ 159 Defendant maintains that the spread of the fire from the car to the house was

unforeseeable, so that the singular fact that he set Morgan’s car afire cannot subject him to

criminal liability for her death under the felony-murder rule. We disagree. Defendant’s

argument incorrectly presupposes that the proximate-cause theory and its reliance on

foreseeability should apply even though it was defendant and not a third party who committed

the act. Even if it applied to defendant as the actor in this case, we note that fire spreads and that

it is eminently foreseeable that a burning car parked in the driveway of a home might

communicate the flames from the car to the house. This foreseeability is captured in the

instructions that were tendered: the idea that defendant performed the act that caused the death

conveys the requisite causation to satisfy the proximate-cause theory of felony murder in this

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case. As noted, in a case such as this, the defendant’s ability to foresee the exact mechanism of

death is immaterial so long as his actions caused that death. Causey,

.

Accordingly, we reject defendant’s argument.

¶ 160 III. CONCLUSION

¶ 161 For the foregoing reasons, the judgment of the circuit court of Du Page County is

affirmed. As part of our judgment, we grant the State’s request that defendant be assessed the

State’s Attorney fee of $50 pursuant to section 4-2002(a) of the Counties Code (55 ILCS 5/4-

2002(a) (West 2014)) for the cost of this appeal. See People v. Nicholls,

(1978).

¶ 162 Affirmed.

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