{ "id": 4260434, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JAVIER HERNANDEZ, Defendant-Appellant", "name_abbreviation": "People v. Hernandez", "decision_date": "2005-12-08", "docket_number": "No. 1\u201404\u20140074", "first_page": "779", "last_page": "790", "citations": [ { "type": "official", "cite": "362 Ill. App. 3d 779" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "247 Ill. App. 3d 505", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2928870 ], "year": 1993, "opinion_index": 0, "case_paths": [ "/ill-app-3d/247/0505-01" ] }, { "cite": "345 Ill. App. 3d 237", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3739257 ], "weight": 2, "year": 2003, "pin_cites": [ { "page": "242" }, { "page": "241-24" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/345/0237-01" ] }, { "cite": "164 Ill. 2d 279", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 476988 ], "year": 1995, "pin_cites": [ { "page": "299" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/164/0279-01" ] }, { "cite": "185 Ill. 2d 532", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 121990 ], "year": 1999, "pin_cites": [ { "page": "541" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/185/0532-01" ] }, { "cite": "488 U.S. 33", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1495401 ], "weight": 3, "year": 1988, "pin_cites": [ { "page": "40" }, { "page": "273" }, { "page": "290" } ], "opinion_index": 0, "case_paths": [ "/us/488/0033-01" ] }, { "cite": "141 Ill. 2d 163", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3238477 ], "year": 1990, "pin_cites": [ { "page": "173-74" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/141/0163-01" ] }, { "cite": "164 Ill. 2d 382", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 477048 ], "weight": 2, "year": 1995, "pin_cites": [ { "page": "393" }, { "page": "393" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/164/0382-01" ] }, { "cite": "618 N.E.2d 388", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1993, "opinion_index": 0 }, { "cite": "248 Ill. App. 3d 28", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2941104 ], "weight": 2, "year": 1993, "pin_cites": [ { "page": "38" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/248/0028-01" ] }, { "cite": "750 N.E.2d 745", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2001, "opinion_index": 0 }, { "cite": "322 Ill. App. 3d 607", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 126373 ], "year": 2001, "opinion_index": 0, "case_paths": [ "/ill-app-3d/322/0607-01" ] }, { "cite": "125 Ill. 2d 117", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5555486 ], "year": 1988, "pin_cites": [ { "page": "130" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/125/0117-01" ] }, { "cite": "701 N.E.2d 1063", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1998, "opinion_index": 0 }, { "cite": "183 Ill. 2d 366", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 209962 ], "year": 1998, "opinion_index": 0, "case_paths": [ "/ill-2d/183/0366-01" ] }, { "cite": "473 N.E.2d 1246", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1984, "opinion_index": 0 }, { "cite": "104 Ill. 2d 504", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3147214 ], "year": 1984, "opinion_index": 0, "case_paths": [ "/ill-2d/104/0504-01" ] }, { "cite": "466 U.S. 668", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6204802 ], "weight": 9, "year": 1984, "pin_cites": [ { "page": "686" }, { "page": "692-93" }, { "page": "2064" }, { "page": "694" }, { "page": "698" }, { "page": "2068" } ], "opinion_index": 0, "case_paths": [ "/us/466/0668-01" ] }, { "cite": "423 U.S. 96", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6175104 ], "weight": 3, "year": 1975, "pin_cites": [ { "page": "104", "parenthetical": "holding that \"the admissibility of statements obtained after the person in custody has decided to remain silent depends under Miranda on whether his 'right to cut off questioning' was 'scrupulously honored' \"" }, { "page": "321", "parenthetical": "holding that \"the admissibility of statements obtained after the person in custody has decided to remain silent depends under Miranda on whether his 'right to cut off questioning' was 'scrupulously honored' \"" }, { "page": "326", "parenthetical": "holding that \"the admissibility of statements obtained after the person in custody has decided to remain silent depends under Miranda on whether his 'right to cut off questioning' was 'scrupulously honored' \"" } ], "opinion_index": 0, "case_paths": [ "/us/423/0096-01" ] }, { "cite": "162 Ill. App. 3d 322", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3508005 ], "year": 1987, "pin_cites": [ { "page": "337" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/162/0322-01" ] }, { "cite": "51 Ill. App. 3d 342", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3382523 ], "year": 1977, "pin_cites": [ { "page": "344", "parenthetical": "finding the defendant's comment that she was not going to make a confession was not \"specific enough to constitute a demand that questioning cease\"" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/51/0342-01" ] }, { "cite": "68 Ill. App. 3d 181", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3306955 ], "year": 1979, "pin_cites": [ { "page": "186-87", "parenthetical": "finding the defendant did not properly invoke his right to silence when he told police \" T think you got enough,' \" \" 'Okay now have you got enough,' \" \" 'there's nothing I want to add to it,' \" and \" 'you've got everything you need here now' \"" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/68/0181-01" ] }, { "cite": "123 Ill. App. 3d 656", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5679123 ], "year": 1984, "pin_cites": [ { "page": "658", "parenthetical": "holding the defendant did not trigger his right to silence when he said \" 'I'm tired, I can't answer no more' \"" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/123/0656-01" ] }, { "cite": "223 Ill. App. 3d 423", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5255600 ], "weight": 2, "year": 1991, "pin_cites": [ { "page": "429" }, { "page": "430-31", "parenthetical": "no proper invocation when the defendant stated, \" 'If I don't want to answer any more questions, then what happens,' \" \" 'You got all the stuff there right now. You don't need no more really,' \" and \" T told you, though, once that ...' \"" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/223/0423-01" ] }, { "cite": "187 Ill. 2d 271", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 1131039 ], "weight": 2, "year": 1999, "pin_cites": [ { "page": "287", "parenthetical": "finding the defendant had invoked his right to remain silent when he placed his hands over his ears, turned his head, and chanted \"nah nah nah\"" }, { "page": "287" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/187/0271-01" ] }, { "cite": "384 U.S. 436", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 12046400 ], "weight": 6, "year": 1966, "pin_cites": [ { "page": "473-74" }, { "page": "723" }, { "page": "1627-28" }, { "page": "474" }, { "page": "723" }, { "page": "1628" } ], "opinion_index": 0, "case_paths": [ "/us/384/0436-01" ] }, { "cite": "301 Ill. App. 3d 966", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 257197 ], "weight": 4, "year": 1998, "pin_cites": [ { "page": "977" }, { "page": "977", "parenthetical": "stating that a defendant has the right to cut off questioning at any time prior to or during a custodial interrogation by informing his interrogator that he wishes to remain silent, and once he so indicates, the interrogation must cease" }, { "page": "978-79" }, { "page": "977" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/301/0966-01" ] } ], "analysis": { "cardinality": 1059, "char_count": 26243, "ocr_confidence": 0.77, "pagerank": { "raw": 5.207966869300525e-08, "percentile": 0.32793243930437643 }, "sha256": "4d597817da0808d7b78e00b3a6828096946c603a0b96f6f4518da87adac972af", "simhash": "1:b8be5d34553a3571", "word_count": 4336 }, "last_updated": "2023-07-14T16:28:25.526171+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JAVIER HERNANDEZ, Defendant-Appellant." ], "opinions": [ { "text": "PRESIDING JUSTICE QUINN\ndelivered the opinion of the court:\nDefendant Javier Hernandez was convicted of first degree murder (720 ILCS 5/9 \u2014 1(a)(1) (West 2002)) and sentenced to 40 years in the Illinois Department of Corrections. On appeal, defendant argues (1) the circuit court erred in admitting into evidence his videotaped statement, which he claims was improperly obtained after he had invoked his right to remain silent; (2) his trial counsel was ineffective because, even though his counsel had attempted to suppress all of defendant\u2019s inculpatory statements, he failed to seek to suppress defendant\u2019s videotaped statement on the basis that it was procured after defendant had invoked his right to silence; (3) the evidence was insufficient to prove that he was responsible for first degree murder under a \u201ccommon design\u201d theory of accountability; and (4) he did not knowingly and intelligently waive his right to a jury trial. For the following reasons, we reverse and remand this cause for a new trial.\nBACKGROUND\nOn June 25, 2000, Roy George and Abel Reyes were attacked by a group of Satan Disciples gang members. George was killed after one of those gang members broke a piece of asphalt over his head. After being arrested, defendant agreed to give a videotaped statement discussing his involvement in George\u2019s death to Assistant State\u2019s Attorney Victoria Ciszek (ASA Ciszek). According to the verbatim transcript of defendant\u2019s videotaped statement (the actual videotape was not included in the record before this court), after ASA Ciszek had informed defendant who she was and defendant had confirmed that he had been read his Miranda rights, the following colloquy occurred between ASA Ciszek and defendant:\n\u201cQ. Havier [sic! Hernandez, I talked to you earlier and you told me about the murder of Roy George. At that time you told me that you and other members of the Satan Disciples decided to beat up Roy George. You picked up a large brick and chased Roy George into an alley with other Satan Disciples. The other Satan Disciples punched and kicked him. Roy George fell to the ground and while he was on the ground you threw the brick at him which hit him in the head. I\u2019m going to read you your rights again. Do you understand that you have the right to remain silent?\nA. Yes.\nQ. Could you please keep your voice up?\nA. Yes.\nQ. Do you understand you have the right to talk to a lawyer and have him present with you while you are being questioned?\nA. Yes.\nQ. Do you understand if you cannot afford to hire a lawyer and you want one, a lawyer will be appointed by the court to represent you before any questioning?\nA. Yes.\nQ. Do you understand that although you are a juvenile, you will be tried as an adult? Do you understand that?\nA. Yes.\nQ. Understanding these rights, do you wish to talk to us now?\nA. No, not no more.\nQ. Do you wish to talk to us now about what we previously spoken [sic] to?\nA. Yes.\u201d\nDefendant then went on to discuss his role in George\u2019s murder.\nPrior to trial, defense counsel filed motions to quash defendant\u2019s arrest and suppress any statements he made to the police or prosecutors. In the motion to suppress defendant\u2019s statements, defense counsel sought to bar \u201cany and all oral or written communications, confessions, statements or admissions whether inculpatory or exculpatory made by [defendant] prior to, at the time of, or subsequent to his arrest in the above entitled cause,\u201d and listed several bases for the suppression of those statements. That defendant had invoked his right to silence during his videotaped statement was not one of them.\nDuring the hearing on defendant\u2019s motions to quash and suppress statements, several witnesses testified for both defendant and the State. During the hearing on defendant\u2019s motion to quash his arrest, Detective Gregory Swiderek testified that Enrique Zamora, a Satan Disciple who later pleaded guilty for his role in attacking George and Reyes, told him that defendant \u201csaid that on the night of the beating, murder, that the Folks, meaning the Satan Disciples, were punching and kicking some guy. And when he was held down, he hit him in the head with a brick and saw his brains in the alley.\u201d Detective Swiderek also testified that defendant admitted to \u201cstriking Roy George with a brick.\u201d\nWitnesses of note during the hearing on defendant\u2019s motion to suppress statements were Officer Cortez, who testified that he was in the interview room with defendant and ASA Ciszek while they were \u201cbasically going over what they were gonna to [sic] do on the videotape\u201d before that statement was made and served as a translator for defendant\u2019s mother during defendant\u2019s videotaped statement; Detective Gregory Swiderek, who testified that he spoke with defendant regarding his role in George\u2019s death and that he placed defendant under arrest \u201cafter [defendant] gave [him] a statement incriminating himself and his involvement in the murder\u201d; ASA Ciszek, who testified that she spoke with defendant about the \u201cincident that occurred on June 25\u201d for about 45 minutes, that after that conversation, defendant agreed to make a videotaped statement, which contained \u201cbasically the same information,\u201d and that Detective Swiderek had told her that defendant had already \u201cimplicated himself in the murder\u201d; and defendant, who testified that he spoke to Detective Swiderek and \u201ctold him about what had occurred relative to Roy George and all the other fellows that were out on the street that day.\u201d After each hearing, the circuit court denied defendant\u2019s motions.\nAt trial, the following individuals testified on behalf of the State: Josephine Garcia (the victim\u2019s mother), Reyes (George\u2019s friend who was also attacked by the Satan Disciples on the night of George\u2019s murder), and ASA Ciszek. Ms. Garcia testified that on June 25, 2000, she found her battered son lying in the alley near 21st and Leavitt and that he died later that night.\nReyes testified that a group of Satan Disciples attacked him and George for smoking POP in a park located in the gang\u2019s territory. Reyes did not see what happened to George, nor was he able to identify defendant as one of his attackers.\nASA Ciszek testified that she spoke with defendant about his role in George\u2019s murder for 45 minutes and that, after their conversation, defendant chose to make a videotaped statement. She did not testify to what was said during that 45-minute \u201cpre-videotaped statement\u201d conversation. Defendant\u2019s videotaped statement was played in open court during her testimony.\nIn that statement, defendant stated that on June 25, 2000, at approximately 10 p.m., he was cruising around with his friends Miguel and Philly, both fellow members of the Satan Disciples, when Philly\u2019s phone rang. Philly told the caller \u201cI\u2019ll be there\u201d and informed defendant that other Satan Disciples were \u201cbeating up some guys\u201d who had violated gang rules near the Ruiz school at 24th and Leavitt. As they were driving to the scene, they picked up three other unnamed fellow gang members because Philly said \u201che needed some guys.\u201d When they arrived at 24th and Leavitt, defendant saw a group of about five gang members beating up \u201ca guy [who he later learned was ReyesJ right there on the corner of Ruiz.\u201d Defendant and a few other gang members then chased a second teenager, who he later learned was George, into the alley. As he ran into the alley, defendant picked up a brick from \u201cthe middle of the street on 21st and Leavitt where they were doing some construction.\u201d\nWhen he got into the alley, he saw a number of gang members \u201cbeating [George] down\u201d by punching and kicking him. When they \u201chad him already almost by the floor,\u201d defendant \u201cwent straight at him\u201d and threw the brick at his head. Though George tried to block the brick, it struck him in the head. Another gang member then picked up the brick and, again, hit George in the head, breaking the brick into two pieces. Defendant then ran to a friend\u2019s house and stayed there for three or four days. Defendant also admitted to telling Zamora a few days after the incident that he had hit George with the brick.\nThe parties then entered into several stipulations, including one as to the testimony of the medical examiner, Barry Lifschultz, who would have testified that George \u201cdied as a result of cranial cerebral injury due to blunt trauma\u201d and that \u201c[t]hese injuries are consistent with being struck in the head at least two times.\u201d The parties also stipulated to the testimony given during defendant\u2019s pretrial motions to quash his arrest and suppress his statements. Defendant presented no evidence.\nAfter closing arguments, the circuit court found defendant guilty of first degree murder, noting that, in addition to the testimony of the witnesses, defendant\u2019s statement was \u201cquite instructive as to in terms of the resolution of the case.\u201d Defendant\u2019s current counsel on appeal, who stepped in after trial but before sentencing, filed a motion for a new trial alleging that defendant had not been proven guilty beyond a reasonable doubt, the circuit court \u201cerred in denying the defendant\u2019s pretrial motion to suppress evidence,\u201d and the circuit court \u201cerred in denying the defendant\u2019s pretrial motion to suppress statements.\u201d\nThough defense (now appellate) counsel alleged in the motion that the circuit court had erred in not suppressing defendant\u2019s statements, he too failed to rely on defendant\u2019s invocation of his right to remain silent as a basis for suppressing defendant\u2019s videotaped confession, instead dedicating his memorandum in support of the motion for a new trial to his \u201c(in)sufficiency of the evidence\u201d argument. The circuit court denied defendant\u2019s motion for a new trial and sentenced him to 40 years in the Illinois Department of Corrections. Defendant filed a timely notice of appeal.\nANALYSIS\nI. Right to Silence\nDefendant\u2019s first two arguments on appeal revolve around his contention that he invoked his right to silence during his videotaped statement. He maintains that the circuit court erred in not suppressing the videotape on that basis, even though neither defense counsel at trial or after trial argued for suppression on that basis, and that his initial trial counsel was ineffective for failing to do so.\nThe State argues that defendant\u2019s invocation was ambiguous and indicated only a \u201creluctance to discuss any additional details of the offense.\u201d The State maintains that ASA Ciszek properly asked defendant a clarifying question as to whether he was invoking his right to silence, and when he indicated that he was not doing so, she continued the questioning. The State further argues that the circuit court could not have erred in failing to suppress the videotaped statement based upon defendant\u2019s invocation of his right to silence because that argument was never presented as a basis for suppression and defendant\u2019s trial counsel was not ineffective for failing to raise that basis. Of course, all of this is for naught if defendant did not actually invoke his right to silence.\nTo protect an individual\u2019s right not to be a witness against himself, found in both the United States and Illinois Constitutions (see U.S. Const. amend. V; Ill. Const. 1970, art. I, \u00a7 10), interrogation must cease once the individual indicates in any manner and at any time prior to or during a custodial interrogation that he wishes to remain silent (see People v. Edwards, 301 Ill. App. 3d 966, 977 (1998), citing Miranda v. Arizona, 384 U.S. 436, 473-74, 16 L. Ed. 2d 694, 723, 86 S. Ct. 1602, 1627-28 (1966)). \u201c[A]ny statement taken after the person invokes his privilege cannot be other than the product of compulsion, subtle or otherwise.\u201d Miranda, 384 U.S. at 474, 16 L. Ed. 2d at 723, 86 S. Ct. at 1628.\nThis right to silence may be invoked either verbally or through conduct that clearly indicates a desire to end all questioning (see, e.g., People v. Nielson, 187 Ill. 2d 271, 287, (1999) (finding the defendant had invoked his right to remain silent when he placed his hands over his ears, turned his head, and chanted \u201cnah nah nah\u201d). If verbal, the individual\u2019s demand to end the interrogation must be specific. See People v. Pierce, 223 Ill. App. 3d 423, 429 (1991). After reviewing the verbatim transcript of defendant\u2019s videotaped statement, we find that defendant specifically invoked his right to silence.\nUpon being informed of his rights, including his right to silence, defendant was asked whether, \u201c [u] nderstanding these rights, [he] wish[ed] to talk to [them] now.\u201d Defendant responded, \u201cNo, not no more.\u201d Though it is possible that defendant was being facetious, without the videotape it is impossible to tell. From the verbatim transcript alone, it appears that while defendant had been willing to talk to the police and prosecutor about his role in George\u2019s murder, making several incriminating statements prior to his videotaped statement, i.e., to Detective Swiderek after his arrest and to ASA Ciszek just before the videotaping began, he decided during the videotaping that he no longer wished to speak. See Edwards, 301 Ill. App. 3d at 977 (stating that a defendant has the right to cut off questioning at any time prior to or during a custodial interrogation by informing his interrogator that he wishes to remain silent, and once he so indicates, the interrogation must cease).\nDespite the State\u2019s arguments to the contrary, the language defendant used here to invoke his right to silence was clear and unequivocal, unlike language from other cases found to be too ambiguous to sufficiently do so. See People v. Milner, 123 Ill. App. 3d 656, 658 (1984) (holding the defendant did not trigger his right to silence when he said \u201c \u2018I\u2019m tired, I can\u2019t answer no more\u2019 \u201d); People v. Aldridge, 68 Ill. App. 3d 181, 186-87 (1979) (finding the defendant did not properly invoke his right to silence when he told police \u201c T think you got enough,\u2019 \u201d \u201c \u2018Okay now have you got enough,\u2019 \u201d \u201c \u2018there\u2019s nothing I want to add to it,\u2019 \u201d and \u201c \u2018you\u2019ve got everything you need here now\u2019 \u201d); People v. Troutman, 51 Ill. App. 3d 342, 344 (1977) (finding the defendant\u2019s comment that she was not going to make a confession was not \u201cspecific enough to constitute a demand that questioning cease\u201d); see also Edwards, 301 Ill. App. 3d at 978-79; People v. Pierce, 223 Ill. App. 3d 423, 430-31 (1991) (no proper invocation when the defendant stated, \u201c \u2018If I don\u2019t want to answer any more questions, then what happens,\u2019 \u201d \u201c \u2018You got all the stuff there right now. You don\u2019t need no more really,\u2019 \u201d and \u201c T told you, though, once that ...\u2019 \u201d); People v. Downey, 162 Ill. App. 3d 322, 337 (1987). Here, when asked whether he wanted to talk, defendant said \u201cNo, not no more.\u201d This is a clear and unequivocal invocation of the right to remain silent.\nHaving found that defendant properly invoked his right to silence, we must next determine whether the trial court could properly consider defendant\u2019s statements that followed that invocation. Statements made after the invocation of the right to silence are admissible only if the interrogators scrupulously honored the defendant\u2019s right to cut off questioning. See Edwards, 301 Ill. App. 3d at 977; see also Michigan v. Mosley, 423 U.S. 96, 104, 46 L. Ed. 2d 313, 321, 96 S. Ct. 321, 326 (1975) (holding that \u201cthe admissibility of statements obtained after the person in custody has decided to remain silent depends under Miranda on whether his \u2018right to cut off questioning\u2019 was \u2018scrupulously honored\u2019 \u201d). In deciding whether that right was so honored, courts should consider whether (1) the interrogator 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) the defendant was \u201cre-Mirandized\u201d before the second interrogation; and (4) the second interrogation addressed a crime different from that of the first interrogation (though the fact that the same crime was discussed during both interrogations does not preclude a finding that the defendant\u2019s right to silence was scrupulously honored). See Nielson, 187 Ill. 2d at 287.\nNone of the above occurred in this case. After defendant invoked his right to silence, ASA Ciszek asked a clarifying question and then continued to ask him about his involvement in George\u2019s murder. No meaningful time elapsed between defendant\u2019s invocation and the resumption of the interrogation, he was not \u201cre-Mirandized,\u201d and the questioning after the invocation concerned the same crime. Thus, we find that defendant\u2019s right to silence was not \u201cscrupulously honored\u201d and, as such, his postinvocation statements were not admissible.\nIn the instant case, defendant failed to raise his invocation of his right to' silence in his motion to suppress his statements, object at trial to the admission of his videotaped statement, or specifically include this issue in his posttrial motion for a new trial. On appeal, defendant argues that his trial counsel was ineffective for failing to raise this issue as a basis for suppressing his videotaped statement.\nIneffective assistance of counsel occurs when a trial counsel\u2019s representation falls below an objective standard of reasonableness and counsel\u2019s error(s) prejudiced the defendant in that, but for counsel\u2019s shortcomings, the outcome of the proceeding would have been different. See Strickland v. Washington, 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052 (1984); People v. Albanese, 104 Ill. 2d 504, 473 N.E.2d 1246 (1984). The fundamental concern underlying this test is \u201cwhether counsel\u2019s conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.\u201d Strickland, 466 U.S. at 686, 80 L. Ed. 2d at 692-93, 104 S. Ct. at 2064. The defendant must overcome the strong presumption that the challenged action or inaction of counsel was the product of sound trial strategy and not incompetence. People v. Coleman, 183 Ill. 2d 366, 701 N.E.2d 1063 (1998). The prejudice prong of the Strickland test requires \u201ca reasonable probability of a different result, not merely a possibility.\u201d People v. Gacy, 125 Ill. 2d 117, 130 (1988).\nThe decision of whether a motion to quash arrest and suppress evidence should be filed in a criminal case is a matter of trial strategy, and counsel benefits from a strong presumption that failure to challenge the validity of defendant\u2019s arrest or to move to exclude evidence was proper. People v. Little, 322 Ill. App. 3d 607, 750 N.E.2d 745 (2001); People v. Peterson, 248 Ill. App. 3d 28, 618 N.E.2d 388 (1993). To prevail on a claim that trial counsel was ineffective for failing to file a motion to quash or suppress (or, more to the point, for failing to put forth what in hindsight was a winning argument in that motion), a defendant must show a reasonable probability that the motion would have been granted and that the trial outcome would have been different. See Peterson, 248 Ill. App. 3d at 38. \u201c[RJeasonable probability\u201d is defined as a probability sufficient to undermine confidence in the outcome. Strickland, 466 U.S. at 694, 80 L. Ed. 2d at 698, 104 S. Ct. at 2068.\nThough defense counsel did seek to suppress defendant\u2019s statements, there is no question that defendant\u2019s videotaped statement (or, at least, a major portion of that statement) would have been suppressed had defense counsel raised the argument that defendant had invoked his right to silence; nor does there appear to be any valid trial strategy in defense counsel\u2019s failure to do so here. In his postinvocation videotaped statements, defendant not only admitted to being part of the group that attacked and murdered George, he detailed the role he played in that murder, i.e., picking up the brick and hitting George in the head with it.\nThe State maintains that there was other evidence implicating defendant in George\u2019s murder, i.e., testimony from Detective Swiderek and ASA Ciszek as to their conversations with defendant where he made incriminating statements. We note that there was no eyewitness testimony or physical evidence linking defendant to George\u2019s murder. The State\u2019s case against defendant was largely based on his videotaped statement. The circuit court specifically noted that defendant\u2019s statement was \u201cinstructive\u201d in its finding defendant guilty of first degree murder.\nThe State also argues that before defendant invoked his right to silence, he \u201cconfirmed\u201d the basic facts of the murder to ASA Ciszek before invoking his right to silence:\n\u201cQ. Havier [sic] Hernandez, I talked to you earlier and you told me about the murder of Roy George. At that time you told me that you and other members of the Satan Disciples decided to beat up Roy George. You picked up a large brick and chased Roy George into an alley with other Satan Disciples. The other Satan Disciples punched and kicked him. Roy George fell to the ground and while he was on the ground you threw the brick at him which hit him in the head. I\u2019m going to read you your rights again. Do you understand that you have the right to remain silent?\nA. Yes.\u201d\nFirst, the \u201cYes\u201d arguably referred only to whether defendant understood that he had a right to remain silent, and not whether he was confirming ASA Ciszek\u2019s summary of their earlier conversation. Second, during trial, the State merely presented cursory details of defendant\u2019s oral statements made prior to defendant invoking his right to silence. Taking into account the importance of defendant\u2019s detailed videotaped statement to the State\u2019s case, and the circuit court\u2019s acknowledgment of that importance, there is a reasonable probability that the outcome of defendant\u2019s trial would have been different had his postinvocation videotaped statements been suppressed. Thus, defense counsel was ineffective for not raising the argument that defendant had invoked his right to silence, and defendant was prejudiced by his failure to do so.\nII. Sufficiency of the Evidence\nThe next question is whether remand for a new trial is barred by the double jeopardy clause. The double jeopardy clause forbids a second, or successive, trial for the purpose of affording the prosecution another opportunity to supply evidence it failed to muster in the first proceeding. People v. Olivera, 164 Ill. 2d 382, 393 (1995). Although the double jeopardy clause bars the State from retrying a defendant after a reviewing court has determined that the evidence at trial was legally insufficient to convict, that clause does not preclude retrial of a defendant whose conviction has been set aside due to an error in the proceedings leading to the conviction. People v. Mink, 141 Ill. 2d 163, 173-74 (1990). For purposes of double jeopardy, all evidence submitted at the original trial may be considered when determining the sufficiency of the evidence; it is not necessary that the erroneously admitted evidence be discounted in determining whether retrial is permitted. See Olivera, 164 Ill. 2d at 393, citing Lockhart v. Nelson, 488 U.S. 33, 40, 102 L. Ed. 2d 265, 273, 109 S. Ct. 285, 290 (1988).\nIn reviewing a defendant\u2019s insufficiency of the evidence claim, the relevant inquiry is whether, after viewing the evidence and any inferences therefrom in a light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. See People v. Smith, 185 Ill. 2d 532, 541 (1999). A criminal conviction will not be set aside on review unless the evidence is so unsatisfactory or improbable that there remains a reasonable doubt of the defendant\u2019s guilt. People v. Byron, 164 Ill. 2d 279, 299 (1995).\nIn this case, the State maintained that defendant was accountable for George\u2019s murder. To prove an offense by accountability, the State must prove that, either before or during the commission of an offense, the defendant solicited, aided, abetted, agreed or attempted to aid another in the planning or commission of the offense. 720 ILCS 5/5\u2014 2(c) (West 2002). Under the \u201ccommon design\u201d theory of accountability, where two or more persons engage in a common criminal design or agreement, any further acts committed by one party are considered to be the acts of all parties to the common design and all are equally accountable for the consequences of such further acts. People v. Johns, 345 Ill. App. 3d 237, 242 (2003). A common design may be inferred from the circumstances surrounding the commission of a crime. People v. Lee, 247 Ill. App. 3d 505 (1993).\nTaking into account defendant\u2019s videotaped statement, evidence of guilt was overwhelming. In fact, defendant\u2019s role in George\u2019s murder is a textbook example of legal accountability, for not only did he stand and watch as fellow gang members attacked George (see Johns, 345 Ill. App. 3d at 241-24 (noting that proof that the defendant was present during the commission of a crime without opposing or disapproving it, that he maintained a close affiliation with the principal afterwards, and that he failed to report the crime are all factors that may be considered in determining legal accountability)), he both supplied the murder weapon and introduced it into the fray. It was defendant who grabbed the brick from the street and waited until his fellow gang members had knocked George to the ground before throwing it at George\u2019s head. Even if defendant\u2019s blow was not the fatal one, a rational trier of fact could certainly conclude that he facilitated George\u2019s murder.\nBecause we find that defendant received ineffective assistance of counsel and that there was sufficient evidence presented at defendant\u2019s trial to allow for a new trial on remand, we do not address whether defendant knowingly and intelligently waived his right to a jury trial.\nReversed and remanded for a new trial.\nGREIMAN and MURPHY, JJ., concur.", "type": "majority", "author": "PRESIDING JUSTICE QUINN" } ], "attorneys": [ "Thomas R. Bennett, of Chicago, for appellant.", "Richard A. Devine, State\u2019s Attorney, of Chicago (James E. Fitzgerald, Annette Collins, and Maureen McGee, Assistant State\u2019s Attorneys, of counsel), for the People." ], "corrections": "", "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JAVIER HERNANDEZ, Defendant-Appellant.\nFirst District (4th Division)\nNo. 1\u201404\u20140074\nOpinion filed December 8, 2005.\nRehearing denied January 11, 2006.\nThomas R. Bennett, of Chicago, for appellant.\nRichard A. Devine, State\u2019s Attorney, of Chicago (James E. Fitzgerald, Annette Collins, and Maureen McGee, Assistant State\u2019s Attorneys, of counsel), for the People." }, "file_name": "0779-01", "first_page_order": 797, "last_page_order": 808 }