SIXTH DIVISION February 10, 2023

No. 1-17-0761

IN THE APPELLATE COURT OF ILLINOIS FIRST DISTRICT

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the ) Circuit Court of Plaintiff-Appellee, ) Cook County ) v. ) No. 12 CR 18935 ) HAVIER COX, ) Honorable ) Michael B. McHale, Defendant-Appellant. ) Judge Presiding. ______________________________________________________________________________

Justice Tailor delivered the judgment of the court, with opinion. Presiding Justice Mikva and Justice Oden Johnson concurred in the judgment and opinion.

OPINION

¶1 Defendant, Havier Cox, 1, was charged by way of indictment with four counts of first

degree murder for his involvement in the shooting death of Roy Williams. The State proceeded

to trial on two of the counts based on a theory of accountability. Following a jury trial, Cox was

1 Codefendant Anthony Newburn is not a party to this appeal. 1-17-0761

found guilty of both counts and was sentenced to 41 years’ imprisonment, with 3 years of

mandatory supervised release and credit for 2187 days served in presentence custody.

¶2 Prior to trial, Cox filed a motion to quash arrest and suppress statements, arguing,

inter alia, that he was unlawfully detained and questioned without sufficient Miranda warnings.

See Miranda v. Arizona,

(1966). After a hearing, the circuit court denied Cox’s

motion. Cox later filed an amended motion to suppress statements and argued that his confession

was involuntary and that his right to remain silent was not honored by police officers during the

interview process. The court denied Cox’s motion to suppress statements following a hearing on

the motion where the court viewed the entirety of Cox’s time in custody on video.

¶3 Thereafter, Cox filed a motion in limine to bar the introduction of “inadmissible evidence

from the ERI,” arguing that certain portions of his electronically recorded interview (ERI)

violated the rules against hearsay. The circuit court denied the motion. Subsequently, the State

filed a motion to, inter alia, prevent Cox from introducing exculpatory portions of his ERI. The

circuit court stated that it would reserve ruling on the admissibility of the portions at issue until

they came up at trial. Cox also filed a motion in limine to produce additional discovery pursuant

to Illinois Supreme Court Rule 412 (eff. Mar. 1, 2001), arguing that information about the

murder of Sherelle Williamson approximately 20 days prior to the shooting of Roy Williams was

necessary for him to “present an alternative suspect theory of defense.” The circuit court denied

Cox’s motion, as well as his subsequent motion to reconsider.

¶4 Chicago police detective Ernest Cato testified that on February 12, 2011, he was assigned

to investigate the homicide of Roy Williams that occurred on November 28, 2009. Cox had been

arrested for “being involved in a possible homicide” and was at the police station. Cox was taken

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to an interview room equipped with video and audio recording equipment and informed of his

Miranda rights. When Detective Cato’s shift ended, Cox talked with other detectives. When

Detective Cato returned the next day, Cox knocked on the door of the interview room at 6:35

p.m. and asked to speak to Detective Cato alone. When Detective Cato entered the room, he

reread Cox his Miranda warnings. Cox then told Detective Cato about his involvement in the

murder of Roy. This conversation was recorded on video. Portions of this ERI were played for

the jury.

¶5 The ERI shows that Detective Cato advised Cox of his Miranda warnings and ensured

that Cox understood his rights. Cox then told Detective Cato that, prior to the shooting, Roy,

whom Cox knew as “Nose,” had his home burglarized and a television was stolen. Soon

thereafter, Roy confronted “Charell [sic], Dominique, Tweety, and Antonio about the TV.” The

following week, Roy shot at a group of people on 15th Street and Drake Avenue in Chicago,

including Sherell Williamson, but missed them. Later that same day, the group was sitting in a

car at 15th Street and Christiana Avenue, and Roy shot at them again, killing Sherelle.

¶6 A few days after Sherelle was killed, Cox was at Quentin Vaughn’s home at 15th Street

and Spaulding Avenue, with Raymond Blount, Dominique Black, Devonjae Strong, and

Anthony Newburn. They talked about “stealing a car and proceeding to shoot Roy Williams.”

They stole a maroon van. At about 9:00 p.m. on November 28, 2009, Devonjae was driving the

van, Anthony was in the front passenger seat, Quentin was behind Devonjae, and Raymond was

behind Anthony. The van pulled up to Cox, and someone asked him, “[W]e finna go get down on

this n***a, for killing our little homie. You finna come with us?” Cox knew this to mean that

they were going to “get down” on Roy for killing Sherelle. Cox then got into the van and sat in

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the back seat between Quentin and Raymond. Cox had two surgical masks when he got into the

van; he was wearing one and gave one to Devonjae. Cox did not see anyone else in the van with

a surgical mask.

¶7 Cox noted that everyone else was wearing medical gloves. Cox saw Anthony with a

metallic-colored automatic handgun. Anthony asked the group, “Y’all got y’all burners?” and

“Do y’all have y’all guns? I have mines. I’m ready.” Quentin and Raymond said, “Hell yeah,”

but Cox did not see any other guns. The group then began looking for Roy’s car. Cox stated that

he eventually told the others to let him out and “I don’t wanna ride with y’all.” The others then

called Cox “a b***h” and told him, “[J]ust be the lookout *** because he gonna ride down

Central Park because he got people hustling for him just stay right here, and if you see him, just

call our phone.” Cox stated that he got out of the van near a bus stop at 13th Street and Central

Park Avenue. Cox said that he lost his mask as he got out of the van. Cox admitted that he had

Raymond’s cell phone and was instructed to call the group if he saw Roy. Approximately 15 to

20 minutes later, the group came around in the van again, and Cox saw Quentin get out of the

rear door and start shooting. Anthony got out and also started shooting.

¶8 A few days after the shooting, Cox saw Dominique and Antonio talking at 15th Street

and Spaulding Avenue. Dominique told Antonio, “[Roy Williams] must be dead. His sister was

crying at school, so we had to get that n****r.” Cox told Detective Cato that he did not call the

police, because he “was afraid. Of not, of what might happen to me, but what they might do to

me.”

¶9 During the second clip of ERI that was filmed approximately one hour later, Cox

clarified that the group dropped him off on the west side of Central Park Avenue at 15th Street.

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Cox stated that he was at a bus stop north of a “yellow store” on Central Park, closer to

Roosevelt Road. Cox then identified photographs of Devonjae, Anthony, Raymond and Quentin.

¶ 10 On cross-examination, Detective Cato testified that on November 8, 2009, several people

were shot and Sherelle was killed by Roy. Detective Cato testified that he read Cox his Miranda

warnings at approximately 4:44 p.m. on February 12, 2011. The portion of the interview played

for the jury occurred approximately 26 hours later, around 6 p.m. on February 13, 2011. While

questioning Cox, Detective Cato knew that Cox’s DNA had been found on a mask recovered

near an abandoned vehicle on November 28, 2009. The interview room where Detective Cato

talked to Cox was locked with no windows and a metal bench. Detective Cato testified he told

Cox that other people were talking about Cox committing the crime, but Detective Cato admitted

that was not true. Detective Cato also admitted that three eyewitnesses, Deandre Feggins, Tyricia

Santiago, and Dave Allen, did not identify Cox in a lineup. Detective Cato testified that on

February 12, 2011, Cox was 21 years old.

¶ 11 During cross-examination of Detective Cato, the State objected to defense counsel’s

questioning of Detective Cato about specifics of the interview that were not included in the

portions of the ERI previously played for the jury. After a discussion outside the presence of the

jury, the circuit court ruled that the sections of the interview that Cox wanted to introduce,

including the portion where Detective Cato was untruthful to Cox, were not admissible because

Detective Cato had already admitted to being untruthful to Cox. The circuit court ruled that Cox

could introduce interview clips only “if you are correcting a misleading statement that was

played by the State ***. Other than that, you can talk about environmental factors, as I

previously ruled, or a possible impeachment ***.” After further discussion, the circuit court

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reiterated, “[U]nless there is some direct impeachment *** I don’t see any other way for you to

play clips under the rules of evidence. If there is impeachment, that might be a different story.”

¶ 12 On redirect examination of Detective Cato, the State sought to elicit evidence that Cox

confessed to Detective Cato after taking a polygraph and being informed of the results. Cox

objected, arguing that polygraphs are not reliable evidence. The circuit court overruled the

objection, stating, “when the defense is that his statement was coerced by the police, which is

clearly what your defense is *** it is proper for the court to admit some evidence of polygraph,

but it is certainly not proper to bring in the results.” Detective Cato then testified that Cox was

told of the results on his polygraph test immediately prior to the portion of the ERI that was

played for the jury.

¶ 13 Tyricia Santiago testified that at about midnight on November 28, 2009, she was at her

sister’s apartment at 13th Street and Central Park Avenue with her boyfriend, Deandre Feggins.

When she and Deandre were in the hallway that night, Tyricia heard gunshots coming from the

direction of 13th Place. When Tyricia looked out the door, she saw Roy in his car and someone

standing in front of the car shooting at Roy. Roy tried to drive away but crashed into the car in

front of him. Deandre ran out of the building and across the street. Tyricia saw a burgundy van

approaching on 13th Place. The van stopped next to the passenger side of Roy’s vehicle, and a

person got out of the van and began shooting at Roy. Roy got out of the car and began running

down Central Park toward Douglas Boulevard. The van then drove off in the opposite direction,

toward 12th Place.

¶ 14 Tyricia met with detectives later that day and again in February 2011 when she gave a

videotaped statement. Tyricia testified that she was unable to identify anyone in a lineup because

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the individuals were wearing masks on the night of the shooting. Tyricia stated that she viewed

another lineup on September 15, 2012, and was able to identify codefendant Newburn as the

second shooter. Tyricia also gave a typewritten statement. Tyricia admitted that she discussed the

shooting with Deandre after it happened.

¶ 15 Chicago police detective Robert Hartmann was assigned to investigate the homicide of

Roy Williams. Detective Hartmann went to 3556 West Douglas Boulevard, where Roy had

collapsed after being shot. A stolen van with a “peeled” steering column was recovered at 3306

West Douglas. Detective Hartmann collected surveillance video from a building near 13th Place

and Central Park.

¶ 16 The parties then stipulated that, if called to testify, Derrick Middlebrook would testify

that he was the manager of the property at 1269 South Central Park, which had working

recording equipment on November 28, 2009. Derrick would testify that the timestamp on the

surveillance video was an hour ahead. Portions of the surveillance video were then published to

the jury. Those portions of the video showed the stolen van and Roy’s vehicle each traveling on

Central Park and showed an individual running in the opposite direction of the shooting after it

occurred. The video did not depict the shooting.

¶ 17 Detective Hartmann testified that on November 30, 2009, he interviewed Tyricia

Santiago at the police station. Tyricia identified Antonio Black in a photo array as the person that

looked most like one of the individuals she saw shooting at Roy Williams but did not indicate

whether Black looked like the first or second shooter. Neither Cox nor Anthony Newburn was

among the individuals in the photo array.

¶ 18 Deandre Feggins testified that he was serving a six-year sentence in the Department of

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Corrections for delivery of a controlled substance at the time of his testimony. He was friends

with Roy Williams and knew him for almost 18 years. Around midnight on November 28, 2009,

Deandre was in the car with Roy before he was dropped off at Tyricia’s sister’s apartment, on

13th Place and Central Park. Deandre was with Tyricia on the first floor of the building when he

heard shooting. He saw an individual on foot in front of Roy’s car shooting into the front of the

car. The shooter was wearing a surgical mask over his face. Deandre then watched Roy drive

away in his car, striking the shooter and crashing into a parked car. Roy and Allen got out of the

car and ran in different directions. A minivan then pulled up, and a second individual got out of

the rear passenger-side door and began shooting at Roy, who was running south on Central Park

Avenue. The second shooter was also wearing a surgical mask, but it was not covering his face.

Deandre recognized this shooter as “Gripp,” someone he knew from the neighborhood. Deandre

stated that codefendant Anthony Newburn was also known as “Gripp.” Deandre further testified

that, as Roy was being shot at by the second shooter, Roy ran up Central Park Avenue toward his

stepmother’s house at Douglas Boulevard. The two shooters got back in the van and headed

north.

¶ 19 Germany Garrett testified that he is Roy’s older half-brother. Germany testified that he

had previously been convicted of two felonies in 2007 and 2011. Germany saw Roy in his car the

evening of November 28, 2009. Later that night, Germany was on the corner of 13th Place and

Central Park, waiting for his cousin to pick him up when he saw a van pulling off of 13th Street.

Germany could see that the occupants of the van were wearing hospital masks. Germany got into

his cousin’s car, and they drove off. A few second later, Germany heard approximately 17

gunshots and then saw the same van leaving the area. Garrett spoke to the police a few weeks

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later but did not tell them he heard gunshots or saw people in masks.

¶ 20 Dave Allen testified that he had felony convictions from 2008 and 2007. He and Roy

were driving around in Roy’s car on the evening of November 28, 2009, with Roy’s sister and

another woman. When they parked on 13th Place, the two women got out and went into a nearby

building. Roy and Allen were sitting in the car when someone started shooting at them through

the front window of the car. Allen ducked and did not see the person holding the gun. There were

approximately eight gun shots. Roy attempted to drive away but ran into another car. Allen and

Roy then got out of the car and ran toward Roy’s stepmother’s house on Douglas Boulevard.

When they approached Roy’s stepmother’s house, Roy stated that he had been shot and then

collapsed. Allen called the police. On February 13, 2011, Allen viewed a lineup but did not

identify anyone. The parties stipulated that Cox was in the lineup Allen viewed.

¶ 21 Assistant State’s Attorney (ASA) Torrie Corbin interviewed Tyricia Santiago on

September 15, 2012, at the police station. ASA Corbin took a statement from Tyricia, typed and

printed the statement and reviewed it with Tyricia. In that statement, Tyricia identified

codefendant Newburn as the second shooter.

¶ 22 Chicago police officer Brian Smith and his partner, Officer Carl Brasic, were assigned to

process the scene of a homicide at 3548 West 13th Place on November 28, 2009, at

approximately 1:30 a.m. At the scene, Officer Smith recovered a cartridge case from the street at

3550 West 13th Place, a pair of latex gloves from a driveway, and a glove from the top of a

garage at 3306 West Douglas Boulevard. Officer Smith also recovered a surgical mask from

3306 West Douglas. He also noted that there was a van at 3306 West Douglas with its engine

running.

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¶ 23 The parties then stipulated that, if called, Steven Strezepek would testify that he is a

Chicago police evidence technician. On November 29, 2009, he obtained swabs and a piece of

fabric that were taken from the stolen van. Mr. Strezepek would testify that he also recovered

three latent fingerprints from the van.

¶ 24 The parties also stipulated that, if called, Samuel Muniz would testify that he is a Chicago

police evidence technician. On December 22, 2009, he obtained a buccal swab and “elimination

fingerprints” from Maria Suarez, the owner of the van. The parties also stipulated that a buccal

swab was taken from Jose Mendez, a person authorized to use the van.

¶ 25 The parties further stipulated that, if called, Jose Gonzalez would testify that he is a

Chicago police evidence technician. On February 13, 2011, he collected a buccal swab from

Cox. The parties then stipulated that, if called to testify, Glenn Manguerra would testify that he is

Chicago police evidence technician. He obtained a buccal swab from codefendant Newburn on

September 15, 2015.

¶ 26 The parties further stipulated that, if called, Tracy Moore would testify that she is

employed by the Illinois State Police (ISP) and is an expert in the field of latent fingerprint

analysis. Moore would testify that she examined the fingerprints recovered by evidence

technician Strezepek and Muniz. She also examined a brick, a pair of latex gloves, a black

leather glove, a surgical mask, and a discharged cartridge case. Moore would testify that, after

examining the items, she found latent impressions and lifts suitable for comparison but that the

comparison did not reveal an identification.

¶ 27 Jennifer Barrett, also an employee of the ISP, testified as an expert in the field of latent

fingerprint examination and identification. On September 2, 2016, Barrett received three latent

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fingerprints in connection with the homicide of Roy Williams. Barrett determined that two of the

latent prints were suitable for comparison but that the fingerprints were not those of Cox,

codefendant Newburn, Raymond Blount, or Quentin Vaughn.

¶ 28 The parties then stipulated that, if called, Debra Klebacha, a forensic scientist with the

ISP, would testify as an expert in the field of forensic biology. Klebacha would testify that she

received a pair of latex gloves, a black glove, a surgical type of mask, and swabs from the rear

seat, passenger’s side door, and steering wheel of the van. She also received the buccal swabs of

Jose Mendez, Maria Suarez, and Cox. Each of the samples was prepared for DNA analysis.

¶ 29 Jennifer Acosta-Talbot, a forensic DNA analyst with the ISP, testified as an expert in the

field of forensic DNA analysis. She determined that there was a DNA mixture of at least two

people on the latex glove but that Jose Mendez and Maria Suarez were excluded. She further

determined that there was a DNA mixture of at least three people on the black glove and that

Jose and Maria were excluded as donors. There was a DNA mixture of at least three people on

the surgical mask, and the “major DNA profile” was male. That major DNA profile was entered

into the DNA database and “obtained an association” to Cox. The DNA profiles from the van

were unable to be profiled because there was not enough DNA.

¶ 30 Lisa Kell, a forensic scientist with the ISP, testified as an expert in the field of forensic

DNA analysis. Kell received a buccal standard from Cox as a “confirmatory standard” after the

previous DNA database association was discovered by Acosta­Talbot. Kell determined that Cox

was excluded as a contributor for the DNA mixtures collected from the gloves but could not be

excluded as the major male DNA profile from the mask. There was a “1 in 1.4 trillion” chance

that a random African American would be included as a possible donor to the major male DNA

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profile from the mask.

¶ 31 The parties then stipulated that, if called to testify, Pauline Gordon, a forensic scientist

with the ISP, would be qualified as an expert in the field of forensic DNA analysis. Gordon

would testify that codefendant Newburn was also excluded as a possible donor to the DNA

mixture from the gloves.

¶ 32 Also, the parties stipulated that, if called, Dr. Lauren Moser-Wirtz would testify as an

expert in the field of pathology and forensic pathology. Dr. Moser-Wirtz would testify she was

an assistant medical examiner for Cook County and that she performed an autopsy on the body

of Roy Williams on November 28, 2009. Dr. Moser­Wirtz would testify that she observed a

gunshot wound to Roy’s left chest and recovered a deformed copper-jacketed bullet from his

back. Dr. Moser-Wirtz would testify that it was her opinion that Roy died of a gunshot wound

and that the manner of death was homicide.

¶ 33 The parties then stipulated that, if called, Tracy Konior, an employee of the ISP in

February 2011, would testify as an expert in the field of forensic science with specialized

training in firearms identification. Konior would testify that the bullet recovered from Roy’s

body was a AS-caliber bullet and that a cartridge case recovered from the street at 3550 West

13th Place was from a .45-caliber cartridge.

¶ 34 Following the People’s case-in-chief, the circuit court denied Cox’s motion for directed

finding.

¶ 35 Danielle Wilson testified for the defense. She testified that she is Dominique Black’s

mother and that Dominique was shot on November 8, 2009. Danielle testified that Dominique

was in Mount Sinai hospital on the day that Roy was shot.

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¶ 36 Rosa Silva testified that she is an investigator with the Cook County Public Defender. On

September 21, 2016, she and one of Cox’s attorneys went to 13th Place and Central Park Avenue

to take photographs. There is a bus stop on the west side of the street depicted in the

photographs. Silva testified that the location of the homicide could not be seen from the bus stop

on Douglas Boulevard and Central Park. There were no other bus stops in the area between

Douglas Boulevard and 13th Place on Central Park.

¶ 37 The parties then stipulated that, if called, Chicago police detective Kevin Bor would

testify that he interviewed David Allen on November 28, 2009. Detective Bor would testify that

David described the driver of the van as a “male black in his late 20s with low-cut hair and a

medium complexion.” Detective Bor would testify that David described a shooter as a “male

black in his early 20s who was approximately five foot eight inches tall, 150 to 160 pounds, with

a medium build, medium complexion.” Detective Bor would testify that David never told him

that either individual wore a mask.

¶ 38 Cox rested. The jury found Cox guilty of two counts of first degree murder and found

that Cox was armed with a firearm. Cox’s motion for a new trial was denied. Cox was sentenced

to 31 years in the Department of Corrections plus a 15-year mandatory firearm-enhancement for

a total of 46 years’ imprisonment.

¶ 39 The circuit court subsequently granted Cox’s motion to reconsider sentence in which he

argued, inter alia, that the sentence was excessive in light of his background and the nature of his

participation in the offense. The trial court then resentenced Cox to 26 years’ imprisonment with

a 15-year mandatory firearm-enhancement for a total of 41 years’ imprisonment. This appeal

follows.

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¶ 40 ANALYSIS

¶ 41 Cox argues that the trial court erred in not suppressing his videotaped confession because

he exercised his right to remain silent and the police failed to scrupulously honor his right. He

also argues that his statement was not voluntary. The State responds and argues that the trial

court properly denied Cox’s motion to suppress where Cox did not affirmatively invoke his right

to remain silent and the surrounding conditions indicated the voluntariness of his confessions.

¶ 42 In reviewing a trial court’s ruling on a motion to suppress evidence, we apply a two-part

standard of review. People v. Gherna,

(2003). We must give great deference

to the trial court’s factual findings and will reverse only if the findings are against the manifest

weight of the evidence. People v. Luedemann,

(2006). A trial court’s factual

finding is against the manifest weight of the evidence only if it is unreasonable, arbitrary, or not

based on the evidence presented, or if the opposite conclusion is clearly evident. People v.

Deleon,

(2008). However, the trial court’s ultimate legal conclusion as to

whether suppression is warranted is subject to de novo review. Gherna,

.

Where a trial court’s decision on a motion to suppress is based on video recordings of the

defendant’s confession and not on live testimony, as in this case, the appropriate standard of

review is de novo because “we are reviewing the same evidence the trial court reviewed.” People

v. Flores,

.

¶ 43 Both the United States and Illinois Constitutions prohibit the state from compelling an

individual to be a witness against himself in a criminal prosecution. U.S. Const., amend. V; Ill.

Const. 1970, art. I, § 10. In order to protect this right, it is axiomatic that, once an “individual

indicates in any manner at any time prior to or during questioning that he wishes to remain silent,

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the interrogation must cease.” People v. Edwards,

(1998) (citing

Miranda v. Arizona,

). “[A]ny statement taken after the person invokes his

privilege cannot be other than the product of compulsion, subtle or otherwise.” Miranda,

.

¶ 44 A defendant may invoke his right to remain silent either verbally or through nonverbal

conduct. Flores,

(citing People v. Hernandez,

(2005)); see also People v. Nielson,

(1999) (finding that the

defendant invoked his right to remain silent by placing his hands over his ears, shaking his head,

and saying, “nah nah nah”). However, “an invocation of the right to silence must be

unambiguous, unequivocal and clear” (People v. Kronenberger,

), and the “demand to end the interrogation must be specific” (Hernandez,

).

¶ 45 During his interview with Detectives Cato and Doreen Velasquez, at approximately 4:30

a.m., Cox told the detectives, “I don’t wanna answer no more questions, ’cause I can’t help you.

And I don’t wanna dig myself into a hole.” After Cox made this statement, Detective Cato said,

“ok” and left the room, returning a few minutes later with a cup for Cox. He then left again.

Detectives James Egan and Roland Rios reinitiated the questioning about three hours and 55

minutes later, without providing Cox with his Miranda rights again. Cox later provided details of

the murder, implicating himself. Cox claims that his statement to Detective Cato

“unambiguously conveyed that he did not want to answer any more questions, because he did not

want to risk somehow incriminating himself” and that questioning should not have been

reinitiated.

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¶ 46 The State asserts that this statement by Cox was equivocal and points to exchanges

between Cox and detectives earlier in the interview, about 3:45 a.m., 45 minutes earlier, where

Cox made three similar assertions that he “don’t have no other questions to answer” but

continued talking to detectives after detectives repeatedly clarified that Cox wanted to continue

talking.

¶ 47 In Flores,

, during his interrogation in connection with a

murder investigation, detectives told the defendant that his codefendant had already talked to

them regarding the murder.

Detectives then asked, “ ‘[y]ou want to talk to us about that?’ ” to

which the defendant replied, “ ‘[n]ot really, no.’ ”

Detectives continued with the questioning,

and 30 minutes later the defendant admitted to being the shooter. Id. ¶ 34.

¶ 48 Before this court, the defendant argued that he had invoked his right to remain silent

when he said, “not really, no,” and that the trial court had erred in denying his motion to suppress

on that basis. Id. ¶ 2. The State responded that, when the defendant said, “not really, no,” he was

referring only to his unwillingness to speak about his codefendant and was in no way conveying

his unwillingness to speak with police about other matters. Id. ¶ 55. We ruled that the defendant

clearly invoked his right to remain silent when he said, “not really, no.” As such, we reversed

and remanded the case for a new trial. Id. ¶ 63.

¶ 49 Likewise, in Hernandez,

, the defendant gave an incriminating

statement to an ASA regarding his involvement in a murder. The defendant subsequently agreed

to repeat his statement on video.

. During the videotaped statement, the ASA

summarized what the defendant had previously told her and then read him his Miranda rights.

The following exchange occurred thereafter:

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“ ‘Q. Understanding these rights, do you wish to talk to us now?

A. No, not no more.

Q. Do you wish to talk to us now about what we previously spoken [sic] to?

A. Yes.’ ”

.

After this exchange, the defendant provided an incriminating statement about his role in the

murder.

The defendant challenged his statement and argued that it should have been

suppressed. We held that the defendant clearly invoked his right to remain silent when he said

“no, not no more.”

.

¶ 50 Similarly, in People v. Brown,

(1988), the defendant was being

questioned by an ASA and made an incriminating statement. The defendant then agreed to have

his statement memorialized by a court reporter. The defendant was advised of his Miranda

rights, and the following exchange took place between the ASA and the defendant:

“ ‘Q. All right. Understanding these rights do you wish to talk to us now?

A. No.

Q. Pardon me?

A. I didn’t understand.

Q. Understanding these rights, do you wish to talk to us now?

A. Well, I already told you what happened.

Q. All right. After you told me before about what happened I informed you that I

was going to call a court reporter and we were going to take it down in writing, is that

correct?

A. Yes, sir.

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Q. Now, I’ve advised you of your rights. Understanding these rights do you wish

to talk to us now about the incident involved on the 30th of June 1983 involving the

shooting death of Renaldo Reyes?

A. Yes.’ ”

.

¶ 51 On review, the defendant argued that “no” was a clear, unequivocal invocation of his

right to remain silent and questioning should have ceased. The State argued the defendant did not

invoke his right to remain silent when he said “no,” because the defendant was answering a

specific question about whether he understood his rights rather than indicating his desire to

curtail questioning. In rejecting the State’s argument, we explained that “[t]he fact that his oral

response was not accompanied by a stronger oral statement or physical manifestations does not

make his response of ‘No’ any less decisive or clear.”

. We further rejected the State’s

efforts to use the defendant’s subsequent statements after he said “no” to cast doubt on whether

he meant to end his questioning. We explained that the State’s assertion that the defendant’s

response of “No” was based on a misunderstanding of the preceding question was

“merely a possible, as well as a convenient, interpretation based upon the State’s own

‘clarification’ through a series of subsequent questions which were amenable to the

possibility of manipulation of the wording of those questions to obtain the desired

‘clarification.’ The fact remains, however, that defendant stated that he did not want to

talk to the assistant State’s Attorney and clearly indicated so based on his response ‘No’

to the State’s corresponding question. Questioning should have ceased at that point ***.”

.

¶ 52 We find the facts of this case analogous to those in Flores, Hernandez, and Brown. As in

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those cases, we find that when Cox stated “I don’t wanna answer no more questions, ‘cause I

can’t help you. And I don’t wanna dig myself into a hole,” he clearly and unequivocally invoked

his right to remain silent. Questioning should have ceased. And it did for a period of time. No

additional questions were asked of Cox until almost four hours later when detectives reinitiated

the interview.

¶ 53 Having concluded that Cox invoked his right to remain silent, we now turn to whether the

trial court could properly consider Cox’s statements that followed his invocation. Statements

obtained after the defendant invokes his right to remain silent may be admissible if the

defendant’s right to end questioning was “scrupulously honored.” Nielson,

. In

determining whether a defendant’s right was “scrupulously honored,” we consider whether “(1)

the police immediately halted the initial interrogation after the defendant invoked his right to

remain silent; (2) a significant amount of time elapsed between the interrogations; (3) a fresh set

of Miranda warnings were given prior to the second interrogation; and (4) the second

interrogation addressed a crime that was not the subject of the first interrogation.”

¶ 54 While the police immediately halted the initial interrogation when Cox invoked his right

to remain silent and a significant amount of time elapsed between the interrogations, Cox was

not given a fresh set of Miranda warnings prior to the second interrogation. Furthermore, the

second interrogation initiated by Detectives Egan and Rios involved the same subject matter as

the questioning by Detectives Cato and Velasquez. Accordingly, we find that Cox’s right to

remain silent was not scrupulously honored and therefore the statements he made after he

invoked his right to remain silent are inadmissible.

¶ 55 The State argues that, should we find that Cox invoked his right to remain silent and his

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subsequent statement inadmissible, such error is harmless. The improper admission of a

defendant’s statements is indeed subject to harmless error review. People v. Wilson,

.

¶ 56 The critical question under harmless error analysis is “whether it appears beyond a

reasonable doubt that the error did not contribute to the verdict.” Wilson,

(citing People v. Patterson,

(2005)). The admission of

unlawfully obtained confessions is “rarely harmless error.” People v. Harris,

. “[I]n determining whether a constitutional error is harmless beyond a reasonable

doubt, ‘[t]he focus should *** be upon the character and quality of the illegally obtained

evidence as it relates to the other evidence bearing on the same issue and the court should

appraise the possible impact upon the jury of the wrongfully obtained evidence.’ ” People v.

R.C.,

(1985) (quoting People v. Black,

, 555 (1972)).

¶ 57 The State argues that, during the course of Cox’s interview prior to his invocation, Cox

“admitted to essentially every element of the confession” and therefore any error was harmless.

As the State concedes, this portion of the interview was not admitted at trial. We fail to see how

evidence that was not before the jury can be used as a basis to establish harmless error. The

portion of Cox’s statement that was admitted at trial outlining his knowledge of, and

involvement in, Roy’s shooting was the underpinning of the State’s case. Other than Cox’s DNA

found on the mask near the stolen vehicle, there is no evidence aside from Cox’s statement that

puts Cox at the scene of the crime or ties him in any way to Roy’s murder. We therefore cannot

say that the improper admission of Cox’s statement was harmless beyond a reasonable doubt.

Therefore, Cox should receive a new trial where the videorecorded statement will not be

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admitted.

¶ 58 As we are remanding for a new trial, we need not address the remaining issues Cox raises

in this appeal. We will address, however, his argument on the sufficiency of the evidence to

avoid double jeopardy concerns.

¶ 59 A defendant may not be retried to afford the State another opportunity to present

evidence it failed to present in the first trial, but retrial is not precluded “when a conviction has

been overturned because of an error in the trial proceedings.” People v. Drake,

. If, however, the evidence presented during the first trial was insufficient to support

a conviction, retrial is not proper.

“[F]or purposes of double jeopardy all evidence submitted

at the original trial may be considered when determining the sufficiency of the evidence.” People

v. Olivera,

(1995). So, even though we have determined that Cox’s

statement to the police after he invoked his right to remain silent should have been suppressed,

we consider it in determining whether the double jeopardy clause forbids a retrial. People v.

Lopez,

(2008).

¶ 60 Cox challenges the sufficiency of the evidence against him and argues that his “mere

presence” at the scene of the shooting is not sufficient to establish his participation in the crime.

When reviewing the sufficiency of the evidence in a criminal case, we must determine whether,

after viewing the evidence in the light most favorable to the State, any rational trier of fact could

have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia,

(1979); People v. Smith,

(1999).

¶ 61 We will not reverse a criminal conviction unless the evidence is so unreasonable,

improbable, or unsatisfactory as to create a reasonable doubt of the defendant’s guilt. People v.

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Rowell,

(2008). A reviewing court does not retry the defendant or substitute its

judgment for that of the trier of fact with regard to the credibility of witnesses or the weight to be

given to each witness’s testimony. People v. Jackson,

(2009). Rather, we

“carefully examine the evidence while bearing in mind that the trier of fact is in the best position

to judge the credibility of witnesses, and due consideration must be given to the fact that the fact

finder saw and heard the witnesses.” People v. Herman,

(2011).

¶ 62 Cox was found guilty of first degree murder by way of accountability for acts done with

either intent to kill or do great bodily harm, or knowledge that the acts would cause death or

create a strong probability of death or great bodily harm. 720 ILCS 5/9-1(a)(1), (2) (West 2014).

A defendant may be found guilty on an accountability theory if the State establishes beyond a

reasonable doubt that the defendant shared the criminal intent of the principal or that there was a

common criminal design. People v. Fernandez,

, ¶ 13. A defendant’s intent may

be inferred from the nature of his or her actions and the circumstances surrounding the criminal

conduct. People v. Perez,

(2000). Words of agreement are not necessary to

establish a common purpose to commit a crime, and accountability may be established through a

defendant’s knowledge of and participation in the criminal scheme, even though there is no

evidence that he or she directly participated in the criminal act itself.

. “One may aid

and abet without actively participating in the overt act.” People v. Taylor,

(1995). “Proof that defendant was present during the perpetration of the offense, maintained a

close affiliation with his companions after the commission of the crime, and failed to report the

crime are all factors that the trier of fact may consider in determining the defendant’s legal

accountability.”

.

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¶ 63 The totality of the evidence in this case construed in the light most favorable to the State

established that Cox committed first degree murder, as he aided the gunmen in the commission

of the offense with the intent to promote and facilitate the commission of Roy’s murder. Cox

admitted in his statement to Detective Cato that he was present at a meeting with Quentin,

Raymond, Devonjae, and Anthony to discuss the plan to exact revenge on Roy for killing

Sherelle. The group talked about “stealing a car and proceeding to shoot Roy Williams.” The

next day, members of the group stole a van, and when they pulled up to Cox, someone asked,

“[W]e finna go down on this n***a, for killing our little homie. You finna come with us?”

Although Cox knew this meant that they were going to “get down” on Roy for killing Sherelle,

he got into the van with two surgical masks. He kept one and gave one to Devonjae. Cox saw

Anthony with a gun. Quentin and Raymond said they had guns, but Cox didn’t see them.

According to Cox, he later got out of the van near the bus stop. He was given Raymond’s cell

phone and was instructed to be the lookout and call if he saw Roy. Moreover, a surgical mask

with a “major DNA profile” attributable to Cox was recovered near the stolen van that police

discovered near Roy’s stepmother’s house with the engine still running. Deandre stated that the

first shooter had a surgical mask on, and the second shooter had a surgical mask on, but it was

not covering his face. Cox never reported the shooting to the police.

¶ 64 As the evidence presented at trial was sufficient to establish that Cox was guilty of

murder on a theory of accountability beyond a reasonable doubt, his retrial on these charges

presents no double jeopardy impediment. Again, this finding is only for purposes of double

jeopardy, and we reach no conclusions as to Cox’s guilt that are binding on retrial. People v.

Naylor,

(2008).

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¶ 65 CONCLUSION

¶ 66 For the foregoing reasons, we reverse the judgment of the circuit court and remand for a

new trial.

¶ 67 Reversed and remanded.

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People v. Cox,

Decision Under Review: Appeal from the Circuit Court of Cook County, No. 12-CR- 18935; the Hon. Michael B. McHale, Judge, presiding.

Attorneys James E. Chadd, Patricia Mysza, and Christopher L. Gehrke, of for State Appellate Defender’s Office (Julia Ozello, law student), of Appellant: Chicago, for appellant.

Attorneys Kimberly M. Foxx, State’s Attorney, of Chicago (Alan J. for Spellberg, Matthew Connors, and Tyler J. Cox, Assistant State’s Appellee: Attorneys, of counsel), for the People.

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