{ "id": 4276464, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. JEREMY I. CALHOUN, Defendant-Appellee", "name_abbreviation": "People v. Calhoun", "decision_date": "2008-06-13", "docket_number": "No. 4\u201407\u20140288", "first_page": "1140", "last_page": "1151", "citations": [ { "type": "official", "cite": "382 Ill. App. 3d 1140" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "585 N.E.2d 99", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1991, "pin_cites": [ { "page": "103", "parenthetical": "\"[defendant, in response to being asked if he understood the Miranda warnings and if he wished to talk, nodded affirmatively. This is evidence that defendant knowingly and voluntarily waived his right to remain silent\"" } ], "opinion_index": 0 }, { "cite": "145 Ill. 2d 520", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5596314 ], "year": 1991, "pin_cites": [ { "page": "530", "parenthetical": "\"[defendant, in response to being asked if he understood the Miranda warnings and if he wished to talk, nodded affirmatively. This is evidence that defendant knowingly and voluntarily waived his right to remain silent\"" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/145/0520-01" ] }, { "cite": "496 N.E.2d 1020", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1986, "pin_cites": [ { "page": "1022", "parenthetical": "the \"defendant's nod constituted an express relinquishment of his right to remain silent\"" } ], "opinion_index": 0 }, { "cite": "146 Ill. App. 3d 101", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3572508 ], "year": 1986, "pin_cites": [ { "page": "104-05", "parenthetical": "the \"defendant's nod constituted an express relinquishment of his right to remain silent\"" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/146/0101-01" ] }, { "cite": "565 N.E.2d 1349", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1991, "pin_cites": [ { "page": "1356" } ], "opinion_index": 0 }, { "cite": "207 Ill. App. 3d 461", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2553951 ], "year": 1991, "pin_cites": [ { "page": "472-73" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/207/0461-01" ] }, { "cite": "463 N.E.2d 1044", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 1984, "pin_cites": [ { "page": "1048" }, { "page": "1048" } ], "opinion_index": 0 }, { "cite": "123 Ill. App. 3d 1042", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5676250 ], "weight": 2, "year": 1984, "pin_cites": [ { "page": "1046" }, { "page": "1046" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/123/1042-01" ] }, { "cite": "552 N.E.2d 1112", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1990, "pin_cites": [ { "page": "1125" } ], "opinion_index": 0 }, { "cite": "195 Ill. App. 3d 926", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2494518 ], "year": 1990, "pin_cites": [ { "page": "943" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/195/0926-01" ] }, { "cite": "698 N.E.2d 620", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1998, "pin_cites": [ { "page": "628" } ], "opinion_index": 0 }, { "cite": "298 Ill. App. 3d 285", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 1073559 ], "year": 1998, "pin_cites": [ { "page": "295" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/298/0285-01" ] }, { "cite": "813 N.E.2d 93", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 4, "year": 2004, "pin_cites": [ { "page": "100" }, { "page": "100-01" }, { "page": "101" }, { "page": "100-01" } ], "opinion_index": 0 }, { "cite": "211 Ill. 2d 502", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 8451664 ], "weight": 4, "year": 2004, "pin_cites": [ { "page": "512" }, { "page": "512" }, { "page": "512" }, { "page": "512" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/211/0502-01" ] }, { "cite": "542 U.S. 600", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 5861325 ], "weight": 9, "year": 2004, "pin_cites": [ { "parenthetical": "plurality op." }, { "parenthetical": "plurality op." }, { "parenthetical": "plurality op." }, { "page": "606" }, { "page": "651" }, { "page": "2606" }, { "page": "615" }, { "page": "657" }, { "page": "2612" } ], "opinion_index": 0, "case_paths": [ "/us/542/0600-01" ] }, { "cite": "384 U.S. 436", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 12046400 ], "weight": 3, "year": 1966, "opinion_index": 0, "case_paths": [ "/us/384/0436-01" ] }, { "cite": "435 F.3d 1148", "category": "reporters:federal", "reporter": "F.3d", "case_ids": [ 936085 ], "year": 2006, "pin_cites": [ { "page": "1159" } ], "opinion_index": 1, "case_paths": [ "/f3d/435/1148-01" ] }, { "cite": "875 N.E.2d 671", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2007, "pin_cites": [ { "page": "678" } ], "opinion_index": 1 }, { "cite": "375 Ill. App. 3d 1120", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 4272360 ], "year": 2007, "pin_cites": [ { "page": "1128-29" } ], "opinion_index": 1, "case_paths": [ "/ill-app-3d/375/1120-01" ] }, { "cite": "634 N.E.2d 747", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1994, "pin_cites": [ { "page": "748" } ], "opinion_index": 1 }, { "cite": "158 Ill. 2d 460", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 780294 ], "year": 1994, "pin_cites": [ { "page": "463" } ], "opinion_index": 1, "case_paths": [ "/ill-2d/158/0460-01" ] }, { "cite": "812 N.E.2d 16", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2004, "pin_cites": [ { "page": "20-21" } ], "opinion_index": 1 }, { "cite": "349 Ill. App. 3d 172", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5435351 ], "year": 2004, "pin_cites": [ { "page": "176-77" } ], "opinion_index": 1, "case_paths": [ "/ill-app-3d/349/0172-01" ] }, { "cite": "542 U.S. 600", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 5861325 ], "weight": 14, "year": 2004, "pin_cites": [ { "page": "613" }, { "page": "656" }, { "page": "2611" }, { "page": "611-12" }, { "page": "655" }, { "page": "2610" }, { "page": "621" }, { "page": "661" }, { "page": "2615", "parenthetical": "Kennedy, J., concurring" }, { "page": "657" }, { "page": "2612" }, { "page": "617" }, { "page": "658" }, { "page": "2613" } ], "opinion_index": 1, "case_paths": [ "/us/542/0600-01" ] } ], "analysis": { "cardinality": 1085, "char_count": 27548, "ocr_confidence": 0.84, "pagerank": { "raw": 5.310335719376518e-08, "percentile": 0.3351710852640444 }, "sha256": "62f49123deee7bdebe62b92b3160dfde3c94d9036a24b2ada2f03b7af5e7568a", "simhash": "1:a983302c77c78fb7", "word_count": 4492 }, "last_updated": "2023-07-14T21:27:01.752924+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. JEREMY I. CALHOUN, Defendant-Appellee." ], "opinions": [ { "text": "PRESIDING JUSTICE APPLETON\ndelivered the opinion of the court:\nThe State charged defendant, Jeremy I. Calhoun, with aggravated battery of a child (720 ILCS 5/12 \u2014 4.3(a) (West 2004)). The child, defendant\u2019s two-month-old son, was taken to the hospital. After medical examinations were performed on the child, the hospital personnel discovered old and new hemorrhages on the child\u2019s brain, suspected he was the victim of shaken-baby syndrome, and contacted the police. Police officers responded to the hospital where they met with defendant. The officers took defendant to the police station for an interview, stopping at defendant\u2019s residence to familiarize themselves with the conditions of the home.\nAt the police station, defendant initially provided several possible explanations of how the child was injured, none of which included him shaking the child. Later during the interview, defendant admitted he had shaken the child \u201ca little.\u201d Following defendant\u2019s admission, the interviewing officer gave defendant Miranda warnings. See Miranda v. Arizona, 384 U.S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602 (1966). The officer told defendant the questioning had progressed from an \u201cinterview\u201d to an \u201cinterrogation.\u201d Defendant again admitted that he was responsible for the child\u2019s injuries, and he explained how those injuries were inflicted. He also admitted that he had shaken the child on at least one prior occasion. On defendant\u2019s motion, the trial court suppressed the post -Miranda statements. The State appeals, and we reverse.\nI. BACKGROUND\nRick Dhabalt, a detective with the Springfield police department, testified to the following facts. On September 24, 2005, he responded to St. John\u2019s Hospital for a \u201cshaken baby\u201d call. There, he met with defendant, the baby\u2019s father. He spoke with defendant for approximately 10 minutes at the hospital, and then they proceeded to the police station for an interview. Detective Dhabalt wanted to interview those at the hospital, including defendant; Amber, the baby\u2019s mother; and Mark Calhoun, the baby\u2019s paternal grandfather. He interviewed defendant first only because defendant said he had to go to work later that evening. According to Dhabalt, defendant was not considered a suspect. Defendant rode in the front passenger seat of Dhabalt\u2019s police car to the police station. On the way, they stopped at defendant\u2019s residence because Dhabalt said he wanted to \u201ctake a look at the house\u201d before interviewing witnesses. Defendant voluntarily led Dhabalt through the residence, a duplex where he, Amber, and the child resided. Mark lived next door in the adjoining unit.\nAfter leaving the residence, the two proceeded into an interview at the police station. Defendant was not handcuffed, was not under arrest, and had not been issued Miranda warnings. Detective Jeremy T. Wooldridge joined them in the interview room. A recording and a transcript of the interview were made and admitted into evidence. The interview began at 7:18 p.m. and ended at 7:50 p.m. Approximately 15 to 20 minutes into the interview, Detective Dhabalt said he asked defendant if he shook the baby and defendant responded: \u201cA little.\u201d Dhabalt testified:\n\u201cI started to say a couple of things, but [defendant] kept interrupting me and asking me some questions in reference to what was going to happen *** but I made several attempts, and I finally had to stop him and tell him the process that we were going through, that the nature of the interview had changed and that I had to read him his Miranda warnings.\u201d\nDhabalt said that after he advised defendant of his Miranda rights, defendant continued speaking about \u201cthe nature of this case.\u201d Dha-balt said defendant told him he had shaken the baby once or twice before but he could not remember when. Defendant was arrested and taken to jail.\nDetective Wooldridge also testified at the hearing and corroborated Detective Dhabalt\u2019s testimony with regard to defendant\u2019s interview.\nThe trial court indicated that it had watched the digital video disc (DVD) recording of the interview sometime before the hearing. The court also reviewed the transcript of the interview. Because the State claims the court\u2019s \u201capparent recall of the interview was clearly inaccurate, and the trial court erred by relying on defense counsel\u2019s disingenuous characterization of the interview,\u201d we viewed the DVD and reviewed the transcript of defendant\u2019s interview. According to the transcript, Detective Dhabalt repeatedly asked defendant if he understood his Miranda rights as they were being read to him. Because defendant never verbally acknowledged that he understood his rights, the transcript fails to indicate any affirmation to that effect.\nOur review of the DVD indicates that although defendant did not say he understood, he nodded affirmatively each time that Detective Dhabalt asked him if he understood. The following is the relevant excerpt from the recorded interview:\n\u201cDHABALT: You have the right to remain silent. Do you understand that? [Defendant nodded.] Anything you say can and will be used against you in a court of law. Do you understand that? [Defendant nodded.] You have a right to talk to a lawyer and have him present with you while you are being questioned. Do you understand that? [Defendant nodded.] If you cannot afford to hire a lawyer, one will be appointed to represent you before any questioning, if you wish. Do you understand that? [Defendant nodded.] You can decide at any time to exercise these rights and not answer any questions or make any statements. Okay, do you understand that? [Defendant nodded.]\nDEFENDANT: Are you guys going to arrest me?\u201d\nThe interrogation continues with defendant saying:\n\u201cI don\u2019t, I don\u2019t want it to look bad on her. I know I did it, but I don\u2019t want to lose my child and I don\u2019t want her to lose the child. It\u2019s going to devastate her, it\u2019s going to devastate me. I really didn\u2019t mean to do it, I wasn\u2019t thinking cause I was angry. *** I\u2019m just tired, cranky, and just did it without thinking. When I realized what I did it was already too late.\n* * *\nRight before I went and got her [(Amber)] is when I did it.\n* * *\nI wasn\u2019t shaking him violently; I just shook him like [defendant demonstrates a straight-arm forward and backward shaking motion],\n* * *\nNot as hard as I could, but yes.\n^ ^ ^\nOh, five or six times before I realized what I was doing and I put him down.\n\u00edj\u00ed ij*\nI don\u2019t know, I\u2019ve only done it once or twice.\u201d\nThe State rested.\nMark Calhoun, defendant\u2019s father, testified on defendant\u2019s behalf. He said he was at the hospital with Amber and defendant when Detective Dhabalt arrived. Dhabalt indicated that he wanted to interview each of them and agreed to start with defendant because defendant had to report to work. The detective asked defendant to accompany him to the police station for an interview and gave him directions on how to get there. Mark told Dhabalt that defendant was not familiar with Springfield, so Dhabalt offered defendant a ride and defendant agreed. When asked if he felt defendant had a choice whether to accompany Detective Dhabalt, Calhoun said, \u201cHe was very persistent in trying to get [defendant] up there.\u201d\nDefendant testified that prior to Dhabalt\u2019s arrival at the hospital, defendant had given statements to various doctors, social workers, and police officers. In those statements, defendant offered several possibilities of how the child\u2019s injuries had occurred. Defendant did not admit to shaking the child but thought maybe the dog \u201ctripped on him\u201d or that the child had \u201chit his head too hard on the table.\u201d\nDefendant testified that he felt he had no choice with regard to (1) riding with Dhabalt to the police station, (2) allowing Dhabalt access to his residence, (3) answering Dhabalt\u2019s questions while in the house, or (4) agreeing to be interviewed at the police station. However, defendant said that throughout the course of the police interview, he still expected that he would be going to work that evening. Defendant said he was never told that he was not obligated to speak with either detective or that he was free to leave. He said he and Dhabalt entered the police station through a nonpublic entrance in the back of the station and that the officer had to unlock the door to gain entry. Defendant said he was not handcuffed until \u201cthe very end.\u201d He said in the interrogation room, Detective Wooldridge was sitting by the door during the interview. Defendant said before he was given his Miranda warnings, the detectives asked him \u201cmultiple times\u201d if he shook the child, to which defendant answered \u201cno.\u201d Defendant said he had never before been charged with a crime or interrogated by the police.\nDefendant testified that he eventually admitted he shook the child \u201c[b]ecause [he] didn\u2019t believe they would let [him] go until they told\u2014 until [he] told them what they wanted to hear.\u201d Prior to his admission, defendant said the detectives \u201cseemed pushy and aggravated and rushing.\u201d After defendant admitted shaking the child, Detective Dha-balt read him his Miranda warning, but defendant did not recall signing a waiver of his rights. Without hesitation, the detectives continued their interrogation, and defendant explained exactly how he had shaken the baby.\nOn cross-examination, defendant said he had a high-school education with no college experience. He was considered a special-education student in high school. He said that during the police interview, the detectives did not physically threaten or mentally abuse him. The assistant State\u2019s Attorney then asked defendant the following:\n\u201cQ. So is it your testimony, sir, that it was your belief that if you confessed to a falsehood, that you would be released?\nA. Yes.\u201d\nAt the close of the hearing, the trial court allowed the parties time to file briefs in support of their positions. On March 6, 2007, the parties presented their arguments, and the court announced its ruling. The court found defendant was not in custody when he made the first admission that he shook the child \u201ca little.\u201d Thus, the court denied defendant\u2019s motion to suppress with regard to his pre-Miranda statement. As to the post -Miranda statements, the court granted defendant\u2019s motion, finding that defendant was in custody at the time, but there was no indication that defendant understood the Miranda warnings or that he expressly waived his rights. The court also found a Seibert violation (Missouri v. Seibert, 542 U.S. 600, 159 L. Ed. 2d 643, 124 S. Ct. 2601 (2004) (plurality op.)) with regard to the post -Miranda statements. This appeal followed.\nII. ANALYSIS\nThe State claims that defendant\u2019s post -Miranda statements should not be suppressed because it was clear that he made the statements after acknowledging that he understood his rights. The State argues that defendant\u2019s nodding in response to Dhabalt\u2019s inquiries constituted affirmative acknowledgments of his rights, and thus any statements he made after being read his rights constitute knowing and voluntary admissions.\nA. Standard of Review\nWhen reviewing a motion to suppress evidence, we are faced with a dual standard of review. We will reverse the trial court\u2019s findings of fact only if they are against the manifest weight of the evidence. People v. Pitman, 211 Ill. 2d 502, 512, 813 N.E.2d 93, 100 (2004). \u201cThis deferential standard of review is grounded in the reality that the [trial] court is in a superior position to determine and weigh the credibility of the witnesses, observe the witnesses\u2019 demeanor, and resolve conflicts in their testimony.\u201d Pitman, 211 Ill. 2d at 512, 813 N.E.2d at 100-01. However, we consider the ultimate legal question of whether the confession should be suppressed de novo. Pitman, 211 Ill. 2d at 512, 813 N.E.2d at 101.\nB. Seibert Analysis\nThe question is whether Miranda requires the suppression of defendant\u2019s second confession \u2014 that is, his second admission that he shook the child, after Miranda warnings. The parties seem to disagree that the answer to that question is to be found in Seibert. In Seibert, the police intentionally withheld Miranda warnings hoping to achieve a confession. Their plan worked in that Seibert confessed to the crime while in police custody without the benefit of Miranda warnings. The officer\u2019s plan was to cure the constitutional defect by giving the Miranda warnings and then eliciting the same confession after the warnings. The officer admitted that his plan was to \u201cquestion first, [and] then give the warnings, and then repeat the question \u2018until [he] g[o]t the answer that [she had] already provided once.\u2019 [Citation.]\u201d Seibert, 542 U.S. at 606, 159 L. Ed. 2d at 651, 124 S. Ct. at 2606. In a plurality opinion, the Supreme Court set forth a multifactor test for determining the admissibility of a second confession. Seibert, 542 U.S. at 615, 159 L. Ed. 2d at 657, 124 S. Ct. at 2612.\n1. Trial Court\u2019s Finding of Fact\nWe agree with the State and find that Seibert does not apply to this case. The holding in Seibert applies to a two-step interrogation process, which is an interrogation process when the defendant is in police custody during all questioning. Here, the trial court found that defendant was not in police custody when he first confessed, and it therefore denied defendant\u2019s motion to suppress his pre-Miranda statements on that basis. Although the denial of that motion is not an appealable judgment, defendant, as appellee, is free to challenge the factual finding that he was not in custody when making his preMiranda statement. And, indeed, he does challenge that finding in the context of his argument for affirming the suppression of his second confession pursuant to Seibert. An appellee is not limited to the trial court\u2019s rationale but may argue for affirmance on any basis in the record. People v. Reed, 298 Ill. App. 3d 285, 295, 698 N.E.2d 620, 628 (1998).\nWhether a defendant was in custody so as to require Miranda warnings is a question of fact (People v. Foster, 195 Ill. App. 3d 926, 943, 552 N.E.2d 1112, 1125 (1990)), and as we have discussed, our standard of review as to questions of fact is deferential (Pitman, 211 Ill. 2d at 512, 813 N.E.2d at 100-01). In determining whether an interrogation was custodial, the trier of fact will scrutinize the objective circumstances surrounding the questioning and ask \u201cwhat a reasonable man innocent of any crime would perceive.\u201d People v. Berry, 123 Ill. App. 3d 1042, 1046, 463 N.E.2d 1044, 1048 (1984). The trier of fact should consider the following factors: (1) the place of the interrogation, (2) statements or nonverbal conduct indicating that the\ndefendant was not free to leave, (3) the extent of the police officers\u2019 knowledge and the focus of their investigation, and (4) the officers\u2019 intentions. Berry, 123 Ill. App. 3d at 1046, 463 N.E.2d at 1048. However, the trier of fact should consider the subjective intent of the officers only to determine whether the officers\u2019 behavior was consistent with their purported intent, and whether, by their behavior, they created a coercive atmosphere. Otherwise, the inquiry should focus on what the defendant thought and believed. People v. Gorman, 207 Ill. App. 3d 461, 472-73, 565 N.E.2d 1349, 1356 (1991).\nDefendant argues that an interrogation room in a police station is \u201cinherently coercive,\u201d but we are aware of no case holding that the place of the interview, by itself, is dispositive. The police never told defendant he had to remain in the interrogation room, and before he made an incriminating statement, they never physically obstructed him from leaving. Throughout the pr e-Miranda interview, defendant said he expected he would be going to work that evening \u2014 suggesting that he did not consider himself to be under arrest. Initially, the police had no probable cause to arrest defendant, and he was not a suspect. Evidently, the understanding was that defendant would come for an interview by his own free choice, for the police gave him directions to the police station. He preferred riding with the police because he did not know his way around Springfield. The finding that he was not in custody during his pr e-Miranda statement is not against the manifest weight of the evidence.\n2. Application of Seibert in Light of Finding of Fact\nAfter defendant was advised of his Miranda rights (after he admitted to shaking the baby \u201ca little\u201d), the witness-interview procedure progressed into a suspect-interrogation process. From that point forward and not before, defendant was in police custody. We find that the trial court\u2019s findings that (1) defendant was not in police custody prior to the Miranda warnings, and (2) a Seibert violation occurred in this case are inconsistent with each other. Because defendant\u2019s custodial interrogation did not begin until Miranda warnings were given, a Seibert violation could not have occurred. Thus, the police here did not follow the deliberate custodial two-step interrogation strategy employed in Seibert.\nC. Whether Defendant Knowingly Waived His Right To Remain Silent\nThe question is whether defendant voluntarily and knowingly relinquished his rights when he admitted that on the day the child was injured, he had picked up the child from his infant seat and shook him five or six times like he had done once or twice in the past. The trial court found defendant\u2019s post-Miranda statements were not voluntary because the State had failed to prove that defendant affirmatively acknowledged that he understood the Miranda warnings.\n\u201cIt is the burden of the State to show that the accused knowingly and voluntarily waived his right to remain silent before an accused\u2019s statement can be admitted into evidence. [Citations.] A waiver may be either express or implied, but waiver will not be implied either from a silent record or from the fact that the defendant made statements.\u201d People v. Brown, 146 Ill. App. 3d 101, 104-05, 496 N.E.2d 1020, 1022 (1986) (the \u201cdefendant\u2019s nod constituted an express relinquishment of his right to remain silent\u201d); see also People v. Crane, 145 Ill. 2d 520, 530, 585 N.E.2d 99, 103 (1991) (\u201c[defendant, in response to being asked if he understood the Miranda warnings and if he wished to talk, nodded affirmatively. This is evidence that defendant knowingly and voluntarily waived his right to remain silent\u201d).\nThe recorded interview clearly shows that defendant nodded affirmatively throughout the reading of his Miranda warnings. After being read each individual warning, defendant was asked if he understood it. Each time, he nodded. After being read all of the warnings, defendant proceeded to describe in detail how and why he shook the child. Despite the great deference afforded the trial court in terms of its superior position to determine and weigh the credibility of the witnesses, observe the witnesses\u2019 demeanor, and resolve conflicts in their testimony, we find that the DVD of defendant\u2019s interrogation clearly shows defendant\u2019s voluntary relinquishment of his right to remain silent. We find that on this record, the basis of the court\u2019s ruling (that there was no indication that defendant understood his Miranda warnings) was against the manifest weight of the evidence.\nIII. CONCLUSION\nFor the foregoing reasons, we reverse the trial court\u2019s order suppressing defendant\u2019s post -Miranda admission.\nReversed.\nMcCullough, j., concurs.", "type": "majority", "author": "PRESIDING JUSTICE APPLETON" }, { "text": "JUSTICE COOK,\ndissenting:\nI respectfully dissent. The trial court saw and heard the witnesses in this case and we should give deference to its evaluation unless it is contrary to the manifest weight of the evidence. The fact that one portion of the evidence consisted of a videotape does not allow us to substitute our view of the facts for that of the trial judge. The court was entitled to make its decision based on all the evidence it saw and heard, not just the videotape. Based on all of the evidence, the court concluded that the officers intended to question defendant until he incriminated himself and only then give Miranda warnings. Once the officers issued Miranda warnings, defendant did not expressly waive his rights as his physical movements did not indicate defendant understood the warnings.\nThe majority holds that Seibert does not apply because the trial court found that defendant was not in police custody when he first confessed. Because the State appealed after the trial court granted, in part, defendant\u2019s motion to suppress statement, the finding regarding the custodial nature of the first statement is not on appeal. In his brief, defendant states that he believes the first statement should also be suppressed based on the trial court\u2019s Seibert finding but acknowledges that the finding is not on appeal.\nEven though the majority acknowledges that the custodial finding is not \u201cbefore this court,\u201d the majority uses that custodial finding to reverse the Seibert finding. The parties have not had a chance to argue the correctness of the court\u2019s custodial finding and the trial court did not have the chance to reconsider the seemingly contradictory custodial finding and Seibert finding. Despite this, the majority reverses the Seibert finding assuming that the custodial finding was correct. If the trial court reconciles the findings, the court may determine that the Seibert finding should control as it erred in deciding defendant was not in custody. Alternatively, if defendant is convicted and files an appeal alleging the custodial finding was incorrect and therefore so was the Seibert finding, this court may be in the position of finding after arguments from both parties that the custodial decision was incorrect and so was our decision in this case.\nThe majority gives deference to an isolated factual finding made by the trial court but no deference to the trial court\u2019s ultimate decision. That approach is incorrect. \u201cThe propriety of the trial court\u2019s judgment, not its reasoning, is before us on appeal. We may affirm the trial court\u2019s judgment on any ground warranted, regardless of whether the trial court relied on it and regardless of whether the trial court\u2019s reasoning was correct.\u201d People v. Campos, 349 Ill. App. 3d 172, 176-77, 812 N.E.2d 16, 20-21 (2004); People ex rel. Waller v. 1990 Ford Bronco, 158 Ill. 2d 460, 463, 634 N.E.2d 747, 748 (1994). Facts in the record support the trial court\u2019s decision in this case even though the trial court opined that defendant was not in police custody when he first confessed.\nIn the Seibert finding currently before this court, the trial court determined that the police deliberately pursued a \u201cquestion-first\u201d strategy: \u201cthis is basically a [\u2018] confession first[\u2019] process, get the statement and give the warnings and then interview again.\u201d The trial court also acknowledged that in shaken-baby cases, the police always focus on family members and caregivers as suspects. The evidence in this case indicates that the police suspected only two people: (1) the father (defendant) and (2) the mother. To narrow down the field of suspects, the police intended to take each of them to the station to question them. Defendant, who had no prior police contact, happened to be the first to be interviewed and unwittingly implicated himself before being warned that he could remain silent and anything he said could be used against him. Once the police had something they could use against him, they warned defendant that he had the right to remain silent and anything he said could be used against him. The officers did not tell defendant that his initial inculpatory statement could not be used against him if a court later determined that he was legally \u201cin custody\u201d when he made the statement. It is reasonable to assume, therefore, that the warnings meant nothing to defendant at this point as he had already admitted something.\nThe Seibert plurality was concerned with instances \u201cwhen Miranda warnings are inserted in the midst of coordinated and continuing interrogation.\u201d Seibert, 542 U.S. at 613, 159 L. Ed. 2d at 656, 124 S. Ct. at 2611. If a defendant confesses because he does not understand his rights, is told his rights, and then asked to repeat the confession so that the police can get an admissible confession, \u201cwould [it] be reasonable to find that in these circumstances the warnings could function \u2018effectively\u2019 as Miranda requires[?]\u201d Seibert, 542 U.S. at 611-12, 159 L. Ed. 2d at 655, 124 S. Ct. at 2610.\nAn Illinois court has recognized that when police officers wait to warn a suspect of his Miranda rights until after he has confessed, the police are obviously deliberately trying to circumvent Miranda. People v. Montgomery, 375 Ill. App. 3d 1120, 1128-29, 875 N.E.2d 671, 678 (2007), quoting United States v. Williams, 435 F.3d 1148, 1159 (9th Cir. 2006) (\u201c \u2018there is rarely, if ever, a legitimate reason to delay giving a Miranda warning until after the suspect has confessed. Instead, the most plausible reason for the delay is an illegitimate one, which is the interrogator\u2019s desire to weaken the warning\u2019s effectiveness.\u2019 (Emphasis in original.)\u201d) When a \u201cquestion-first\u201d strategy is deliberately used, postwarning statements must be excluded absent specific curative steps. Seibert, 542 U.S. at 621, 159 L. Ed. 2d at 661, 124 S. Ct. at 2615 (Kennedy, J., concurring). The Seibert plurality determined that the postwarning statements before it were inadmissible after considering a series of relevant facts that showed whether the Miranda warnings delivered midstream were effective in accomplishing their objective. The relevant facts were as follows:\n\u201cthe completeness and detail of the questions and answers in the first round of interrogation, the overlapping content of the two statements, the timing and setting of the first and second, the continuity of police personnel, and the degree to which the interrogator\u2019s questions treated the second round as continuous with the first.\u201d Seibert, 524 U.S. at 615, 159 L. Ed. 2d at 657, 124 S. Ct. at 2612.\nIn the present case, the police took one of two suspects to the police station, put him in an interview room with two officers, asked him if he shook his baby, and pressed him until he admitted he did. At this point, the same officers \u201cwarn\u201d defendant and, without a break, the same officers in the same setting continue the interrogation covering the same issues. It is not unreasonable to believe that defendant considered both interrogations \u201cas parts of a continuum, in which it would have been unnatural to refuse to repeat at the [later] stage what had been said before.\u201d Seibert, 542 U.S. at 617, 159 L. Ed. 2d at 658, 124 S. Ct. at 2613.\nSince defendant already implicated himself by the time the officers issued the Miranda warnings, defendant may not have understood the warnings as applying in light of his confession and defendant\u2019s physical motions may have been reactive responses and not meaningful waivers. The trial court had the benefit of observing the police and defendant both in court and on tape and determined that defendant\u2019s movements were not responsive and did not indicate he understood his rights. This determination was not against the manifest weight of the evidence.", "type": "dissent", "author": "JUSTICE COOK," } ], "attorneys": [ "John P. Schmidt, State\u2019s Attorney, of Springfield (Norbert J. Goetten, Robert J. Biderman, and Anastacia R. Brooks, all of State\u2019s Attorneys Appellate Prosecutor\u2019s Office, of counsel), for the People.", "Daniel Fultz, of Springfield, for appellee." ], "corrections": "", "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. JEREMY I. CALHOUN, Defendant-Appellee.\nFourth District\nNo. 4\u201407\u20140288\nOpinion filed June 13, 2008.\nCOOK, J., dissenting.\nJohn P. Schmidt, State\u2019s Attorney, of Springfield (Norbert J. Goetten, Robert J. Biderman, and Anastacia R. Brooks, all of State\u2019s Attorneys Appellate Prosecutor\u2019s Office, of counsel), for the People.\nDaniel Fultz, of Springfield, for appellee." }, "file_name": "1140-01", "first_page_order": 1158, "last_page_order": 1169 }