of the three dash to point to clyde the state did not do so that's all miss harris his statements should have been suppressed as an initial matter that defense counsel was showed that this was a custodial interrogation ms harris was in custody that case from then on she's not leaving at that probation run would just appear i don't know if she's walking out the door at that point she's a suspect in the murder so but in addition to that all of the objective circumstances show that she was in custody that location was police dominated she was that area too and at the polygraph exam offices and perching road the timing was early in the morning and late at night that's when she was asked questions the don't ration  over twenty four hours the mood was confrontational and she's confronted and since you did the police know at this point in time we're talking earlier for the polygraph or any of that the police know if the defendant had a violent history yes they knew that there was an existing report showing according to one place report a similar incident to the incident that caused mr williams death and later on before the polygraph they find out that there was another violent incident are alleged balanced in between her and another friend of hers mr sam coffey so there is at least an indication that she has this violent history that they know about the mode of the interrogation also supports a finding  she's not told she was free to leave if she was not told that she did not have to answer questions she was picked up at the time the date of the police officers choosing and then she does have in the shop a from the rest she is given a form to sign for the polygraph exam that contained miranda warnings she was also one of the first things that they talked about she in the police officers was that that she had this other arrest warrant out for her so reasonable person innocent of any crime after talking to police about an outstanding arrest warrant and having all these other factors would not feel free to leave if if we assume for the sake of our discussion here this morning that the custody aspect is satisfied what about voluntariness because the state makes an argument  seven of its brief saying that the court specifically found that there was voluntary in this here which would you know arguably say that the exception was met and that there's no need to  it specifically speaking on voluntary ness but secondly the court didn't find that this was voluntary and the standard here is the internet and reliability and the court didn't even mention the word reliability so what the court said here  that and this is a quote the remedy you're asking for is not because there's a question of voluntariness it's a question of do they have different rooms guys are here technicians over there there are different facilities to go to that extreme remedy for what i find to be whatever happening not acting out of voluntary nests i think that's an extreme remedy outside the boundaries of this court so he didn't really find that this was a voluntary statement and the state put forward no evidence that this was a voluntary statement we don't know if she was coerced we don't know if she was threatened we don't know if she was promised anything we don't know her physical mental or emotional condition we know that she did use crack cocaine with some frequency we have no idea if she was under the influence of drugs or alcohol at the time we don't know if she was fat if she went to the bathroom  was given an opportunity to have food really none of the indicators of voluntary nest were displayed here and that it's again a sad the state did not present any evidence of reliability either and although there's not a reliability tast that's in the statute if you look at other reliability tests stunner it's been fifteen dash time care can we look at the record and say you know we think that seems reliable that it was voluntarily given that proper for us to go i don't think that you have enough evidence on this record to say that the state met its burden to show voluntary neston reliability and i think specifically looking at her statement at least the contents of her statement there's no way that that's reliable because she gives to uncover tory statements that are diametrically opposed one of them has to be false under one statement she says she was a lookout while two other individuals robbed mr williams and one of them went quote off script and hit him with an iron under another statement she says i asked mr williams for money he became sexually aggressive i said no he threatened me with a knife and i grabbed the closest thing which was an iron and hit him so both of those statements can't be true they can't both be reliable and i also think that the statute that has  to prevent false and course confessions but it's also to protect police officers from allegations of abuse and coercion it should be strictly construed if you look at the legislative history they side but when someone to miss position and they're not considered a suspect that they're asked these questions that we should still see if the state can apply any of the exceptions the state didn't do so here so all of these statements should be suppressed  let's take justice this suggestion and move on now past the statutory objection that you have and talk about the state they said were given after she indicated that she wanted to talk to a lawyer and the police officer left the room briefly came back a minute later and there's this business about i left my my phone numbers are over a county or something let's talk about those and her in vocation of the right  may first miss harris asked for a few days to get an attorney and there were two permissible responses to that ok we'll have questing while we get an attorney for you from the public defender's office or are if for some reason the officer believe this to unequivocal requests for counsel proper police procedure should be to question her about whether or not she was asking for counsel after did neither of these things here he said a few days no and then she proceeded to ask how long can i  presumably how long can i have to get counsel and the officer that's the room came back about a minute later with another officer and then asked her a question you know if we're if you want to try any we're done talking right now and she indicates something the videotape is very poor i'm sure you got to see that you can't tell where she indicates yes or no but then i thought mr ceci that she said something to the effect of all the numbers are over and that we're on hold and will contact the peace office for you miss harris was never a word as to how she would get counsel when she asked for counsel and she's trying to figure out how to get her phone numbers from county they never sad ok we'll put this on hold and we'll give you an opportunity to talk to co choice or will contact the p d s office instead they just read and it's a little bit foggy but something along the lines of if you no longer want to answer questions and she says yes i want to answer questions but she doesn't say i want to answer questions without an attorney it's clear that she wants an attorney there to advise her before she answers these questions so for these reasons and all of her see after her invocation on may first should have been suppressed on that  ground are there any further questions or if there are no further questions then on the basis of these arguments and those in the breeze we ask that you reverse a conviction outright on the basis of issue number three or suppress or statements and reverse to remand for a new trial on the basis of and because the of the backplate establishes that they weren't that reliable they were all properly admitted under subsection half of the statute that specifically the defense agreed that these statements were voluntarily given at three specific instances in the record at the prior at the beginning motions the defense theory that it was not raising an allegation of course and now this is significant for several reasons but one if there was any allegation of coercion to raise first of all defense counsel certainly would have raised in a pretrial motion and he did not and neither did he raise because a concern about whether statements were actually voluntary or not you want to put that arrest it's all about ontarians it's completely about monitoring this the remedy you're asking for is not because there's a question about some voluntary nets it's a question that they have different rooms holograph guys over here detectives rooms over there they're different facilities to go to that extreme i'm ready for what i find to be whatever happening not acting out of voluntariness i think that's next remember to be outside the boundaries of the courts we looked at that and quite frankly i don't think that it says what you wanted to say i don't think that the judge was specifically making a finding and if we were able to go back in the record and find all of the in addition of voluntariness that have been brought up by the state in the interrogation at the time she gave the statements or because they were voluntary and reliable that's the way with the way you know reading the record it does seem like judge lynn was making a finding that it was non custodial specifically is talking about the fact that she's there in the probation but you know just with the sound of murder so it seems like that you could read read this record and come to the conclusion that he was making his decision and the videotape statute solely on the basis was in the court that the reason that that information is not in the back of it is because the defense agreed to it they essentially alleviated the burden of proof of the state because they specifically said they weren't contesting voluntariness they said that at the motion when the court was ruling and they said in their p trial motion at the end of this when they raised this issue in their post trial motion they specifically stated that the defendant's statements were not involuntary based on the totality of the circumstances they chose in fact to attack the reliability of the statements so because  evidence in this record that those things were all voluntarily given and we do have that evidence in this record even though it wasn't put forth for the trial court exactly as this court may has been speaking in this case we have that she was thirty nine years of age she is an eleventh grade education so to respond to what counsel is saying we do we can we can presume that she can read we can presume that she can read and write since at the evidence is that she has an eleventh grade education and just prior context of the criminal justice system in addition we know there's no compulsion or inducement for the reasons previously stated because they've ever raise an issue of coercion and if you look at her later videotape statements to the to the detectives the tone and tenor of these statements is conversational it's pleasant it's open and cooperated at one point she told the detectives that specifically stated that they weren't raising the issue of monitoring this so it's presumed that there was no inducements words that or anything of that site that type because had there been anything to bring first of all they would have brought it entirely different motion they never brought entirely different motion they chose only to bring the motion and they immediately even say it in their argument that they're raising the reason the technical rights under the statute it was a technical it was a legal argument that they were making they never claimed that there was anything involuntary about these statements and the trial cry position would be that and yet again they could have chosen to bring that that issue at a pretrial in a pretrial motion and if they really had truly felt that this was a custodial interrogation they certainly would of and once again they did not bring that to trial and there's no allegation of ineffective assistance of counsel for failing to bring that request that's what he should do anybody clarify he specifically stated to her are you requesting were you requesting an attorney because if you are we're done talking ok and then there was some more conversation to the two of them if you and he says do you or inaudible want to responds it will take a little while stop the questioning and we'll call for a public defender and the defense says no go ahead the illinois supreme court found that this was not invocation equivocal ambiguous or otherwise but merely an inquiry into the availability this is this is a little bit different i think you know that's that's a fair citation this little bit different though in that it seems from watching the interview and seeing what she was saying not all of which made it into the transcript i'll admit it seemed to me that she was looking into getting private counsel and she had some phone numbers from private counsel you know they they they didn't go through you know the typical kind of conversation that you see that you know we can lawyer can be a point in for you we've got public defender understood and we knowingly voluntarily way down from miranda rights this exchange between her and the detective happened maybe a couple hours later into the videotape the second or third we're where were we in terms of you know her implicating herself or beginning she wasn't giving any inculpatory information then later rounds comes out dribs and drabs that you know she may have been there's a look up when o'neill and some other woman were in there but now when she's looking for a warrior there's information that maybe she was full accounts making herself a lookout while having only on this unknown prostitute were actually robbing and murdering the victim in this case so the point that she had this exchange she had already fully made herself accountable for the armed robbery and she's already admitted that she was engaged in a plan with kevin neal and it's on woman to participate in this murder that she her responsibility was to make sure no she sure nobody got into the room and the second thing is that we that we said in their brief even more parallels the situation  asking for an attorney will stop questioning you she said no i want to make answer questions so we would argue that it is not the case in any type but if it was at all was ambiguous and when they clarified it she did not invoke her right turning now talking back i don't want to touch back on what you're on earth referred to as the signed waiver that she had if there's just one other thing that sort of there to me if we were to find that they have particular part of the statements should have been that of them sooner because of the implication of counsel and appreciate that you have all the other information that was given in these other statements that you reference didn't the court  was making his finding and entering his judgment in the court take greatly into account the statement that she gave where she was actually involved and she was hitting him with the iron and you know choking him and all of her second degree because i'm just trying to figure out you know remedy wise you know if if if we were persuaded this is hypothetical if we were persuaded that the last part of it you know when she says my numbers are county that they have part of it should have been admitted you know are you saying that we could affirm her conviction that felony murder even though the court clearly took into account everything that she said when she was w was intrinsically involved in this crime and she admitted to that those statements are voluntarily given and reliably made and therefore this court can affirm if it so happens to find ok ok turning back to the first issue and on that and that's because there is no custodial interrogation here at any time in those initial statements on the twentieth of the twenty first and that's because there was no interrogation at all because none of the defendant's statements the i mean the phrase the officers questions were not reasonably  happened and said it was a misunderstanding that woman was never in custody she was never the evidence shows that it doesn't even appear that she was brought out of the police station that they spoke to her and she dismissed the this incident outright there was only one incident and when they talked to the defendant about the same case report  to defend it responded in kind and said it was a misunderstanding and that it never happened so in addition to all those people in that area there were ten people on the scene at the time that this murder occurred all those people were involved that of the victim in some way or another there's a number of people who had violent histories with him there's a number of people who were known for coming to take his money too from robbing him and that six of the people on the scene at the time the victim's body was found said that this unknown african american prostitute had been with him in the hours and days prior to his murder and three of those people accounted for the defend his whereabouts immediately before she found the body so the time they went to talk to the defendant she wasn't even a suspect and the reason that suspect in one of its findings and secondly there were plenty of indications on the record that she was a suspect she discovered the body she right about her name at the same she had roughed for two weeks just with her address she was unable to be found for two weeks there was not only that one case report there were also witnesses who said that she was known for jumping mr williams and that she that they were suspicious of her because she'd become close to them and then they have this other violent incident with mr coffey that comes into play and definitely once she fails that polygraph exam she's in custody she according to after fabrics testimony there's indication of deception on the this was the state's burden this was the state's burden to show that this was voluntary this was the state's burden to show that it was re strategy decision on defense counsel's part they they didn't have to i mean under the state's argument they would have to a graduate of fourteen got eleven in violation and a violation of miranda in order for them to be effective counseling to show that this is a custodial interrogation this is just a strategy decision and here i would say that the court did find this was a custodial interrogation but just did not want to or did not construe the statute in the correct manner or just was not willing to give such an extreme r that the defense of not separately raised the issue of voluntariness but that that was probably a strategy and that's because they didn't have to give any notice they didn't have to give any notice