## I L L I N O I S 

## O F F I C I A L 

## RE P O R T S Appellate Court

People v . Harris , 2012 IL App (1st) 100678

Appellate Court Caption THE PEOPL E OF THE STATE OF I L L I NOI S, Plaintiff-Appe l lee, v. ANNETT E HARRI S, Defe ndant-Appe llant.

District & N o. First District, F ourth Division
Docke t No. 1-10-0678

Rule 23 Order

filed
Rule 23 Order withdrawn Opinion filed Marc h 29, 2012

August 24, 2012 August 30, 2012

Held (Note : This s

yl lab us

c o nst it ute s no par t of the opi nio n of the cour t but has bee n pre

par ed by the Repo rt e r of D e c i s i o n s f

o r t h e

c o n v e n i e n c e o

f t h e

rea der

. ) Def endant’ s convictio n fo r felony murder predicated on arme d robber y

was reve rsed and the cause was rema nded for a new t ri al wher e the failure to videotape her initial custodial interrog ation violated section 103-2.1 of the Code of Criminal Procedur e and rende red her inculpatory
statements presumptively inadmissible and the statements she made afte r subsequently invoking her righ t t o counsel also should have been suppressed.

Dec ision Under
Review Appea l from t h e Circuit Court of Cook County
, No. 07-CR-11841; the Hon. J ames L inn, J udg e, pre siding.

J udg ment Reverse d and re manded.Counsel on

Appea l Michae l J

. Pelletier, Alan D. Goldberg
, and Be njamin Over by
, all of State Appellate D efe nder’ s Offic e, of Chica g o, for a ppellant.

Anita M. Alvare z, State’s Attorney
, of Chicag o (Alan J

. Spellberg and Sarah L

. Simps on, Assistant State ’s Attorney s, of counsel), for the People.

Panel PRES IDI NG J USTI CE LAVI

N delivere d the judgme nt of the court, with opinion.
J u stices Fitzge rald Smit h and Sterba concur red in the judgme n t an d opinion.

OP INION

¶ 1 Following a bench trial, defe ndant Annette Har ris was found gui l t y o f felony murder predic ated on arme d robber y and was sentenc ed to 20 year s’ imprisonment. Def endant raises three contentions on appe al. Fir st, defenda nt contends police f

ailed to videotape her init ial custodial interrog ation in violation of section 103-2.1 of the Code of Criminal Procedur e of 1963 (Code) (72 5 I L C S 5/103-2.1 (West 2008)), rende ring her inculpatory statements presumptively inadmissible. She argues the co urt there fore err ed in denying her mot ion to suppress the statements. Def endant also contends the trial court err ed in denying her motion
to suppress statements made later during her incar cer ation beca use althoug h she had invoked her right to counsel, the custodial interrog ation did not cease . Def endant f inally argues the State failed to pr ove her guilty beyond a re asonable doubt of the pre dicate f elony of ar med robber y and thus her murder conviction cannot stand. Def endant also reque sts that we corr ect the mitti mus to ref

lect her felony mur d er conviction rathe r than intentional first-degree murder.

¶ 2 I . PROCEDURALBA CKGROUND ¶ 3 Def

endant, ag e 39, was arr ested, then charg ed with the first-degree murder and a rm ed robber y of Errla nd “Swee ts” W i l l am s , age 69. In early April 2007, police discovere d the victi m , b ea t en and bloody
, with a clothing- iron cord wra pped around his neck, in the baseme nt of hi s two-flat a partment at 7446 South C hamplain Avenue , Chicag o. Wil liams, who was depende nt upon social security
, was kn o wn t o b e g ener ous with this meag er income, consorted with pr ostitut es and previously had been the victim of sever al robberies of this income. The State’s case rested almost entirely on defe ndant’s inculpatory statements made to detec tives over the course of several weeks. Detectives question ed d ef endant at a police facility from April 20 -2 1
, 2 007. Def endant first indicated involvement in the crime on April 21. Fr om April 30 to May 2, police ag ain questioned de fenda nt. On May 1 and 2,

-2-defe ndant fully inculpated he rself a s Wi lliams’ murdere r. ¶ 4 Prior to trial, defe ndant filed a two-par t motion to suppress that evidenc e. Def endant f irst alleg ed that stateme nts made duringher init ial April 20-21 detention were not videota ped, in violation of section 103-2.1 of the Code. She alleg ed that
, as a result, any inculpatory
statements made then and there afte r should be suppressed. As defe ndant noted, section 103- 2

. 1 p rovides that a st atement of an accuse d made as a result of a custodial interrog ation at

a police station or other place of detention is presumed inadmissible as substantive evidenc e in a murder prosecution unless it is elec tronically re corded; all statements m ade therea fter

are also presumed inadmissible. 725 I L CS 5/103-2.1 (West 2008). Def endant added that the State could not fulfill its burden of proving the statements voluntary and reliable

. In part two of defe ndant’s motion to suppress, she alleg ed that she had unambiguously invo k ed her constitutional right to counsel duringher later c ustodial interrog ation, but this request was not honored and the inte rrogation did not cea se. This, she argued, violated Miranda v. Arizona , 384 U.S. 436 (1966), and its plentiful prog eny

.

¶ 5 A. Motion to S uppress Part I : Statement Not Videotaped ¶ 6 At the motion to suppress, defe ndant called Detec tive Brian For berg to establish only

the requisite custody under section 103-2.1. Detec tive For berg testified that he proce eded to the crime scene at 7446 South Champlain on April 3, 2007, to investigate Wil liams’ death. Once there
, he lear

ned that a witness named Antoinette Brigg s had found Wil liams dead and that both Brigg s and sever al other witnesses had seen Wil liams with an unknown prostitute in the day s befor e his dea

th. ¶ 7 Followingthis ini tial investigation, Detective F orber glear ned that Brigg s was ac tually the defe ndant, Annette Har ris, and, there fore
, that it was defe ndant who had d i s co vere d Wil liams ’ body

. Various individuals from the neighborhood identified defe ndant as Wil liams’ companion and stated she had “a reputation for beating ” Wil liams. A police depar tment data repor

t showed defe ndant as the name d p erpe trator of an offe nse ag ainst Wil liams. ¶ 8 Detec tive For

berg beg an a 10-day sear ch f o r d e f endant once he discovere d defe ndant was

no longe r at her last known addre ss. On April 20, 2007, Detec tive For berg found defe ndant
at her friend Sam Coffey ’s residenc e. Driving in an unmarke d squad car , Detec tive For berg transporte d defe ndant to Are a 2 detec tive division head quarte rs for questioning reg arding Wil liams’ death. Fur

ther details reg arding the time and co n t ent of these interviews wer e

reve aled at trial and will be more f ully set forth late r in this opinion. ¶ 9 For the purposes of t he pretrial hearing o n cu s t o dy , Detec tive For berg testified t hat he did not believe defe ndant was handcuf fed and further did not kn o w i f th e car doors wer e locked. Upon arrival at Area 2, defe ndant was taken to an int ervie w room, wher e the door

was “proba

bly” locked. Detec tive Forb er g d i d not convey that defe ndant could decline to

answe r questions or wa s fre e to leave . He a lso did not off er at any time to r eturn he r to her friend’ s residenc e. Def

endant admitted she prese nted police with a false name beca use there

was a war rant for her arr est for a probation violation. To Detec tive For berg
, this meant that he could not rele ase defe ndant. When Detec tive For berg confr onted defe ndant reg arding her

-3-repor ted prior offe nse ag ainst Wil liams, she claimed it was a misunderstanding
, but agree d to take a polyg raph te st. ¶ 10 I n t h e s am e u n m arked police vehicle, Detec tive For berg transporte d defe ndant t o a polyg raph fac ility located at 1819 Pershing Road. Ag ain, he did n o t b eli eve she was handcuf fed. The polyg raph examiner prese nted defe n d ant with a consent form containing Miranda war

nings, and defe ndant signe d it. Next to eac h war ning appea

rs the letter, “y .” The examiner conducte d the polyg raph test without Detec tive Forb er g prese nt and asked defe ndant questions about Wil liams’ death. The test reve aled “some deception” relating to defe ndant’s knowledg e of the identity of Wil liams’ killer. Acc ording to Detec tive For berg
, the examiner t o l d him that defe ndant then implicated her boy friend Kevin O’Ne il as the
person who killed Wil liams. Following the polyg raph, Detec tive For berg rela yed its results to defe ndant and que stioned her about the events leading up to her discovery of Will iams’ body

. Def

endant then implicated h erself, O’Ne il, and the afor ementioned unknown prostitute, whom she i dentified as Adr ea n a (also Adrina)
, and defenda nt stated she was to

serve as the “ lookout.” At this point , Detec tive For berg terminated the interview. ¶ 11 Detec tive For

berg testified that he had not rec orded any of these interviews and had not advised defe ndant of her Miranda rights beca use she was mere ly a witness in the homicide investigation and not a suspect until she implicated he rself. ¶ 12 Followingthe close of this evidenc e at the motion t o suppress, def ense c ounsel argued that section 103-2.1 of the Code rende red any inculpatory statements made during the April 20-21 interview inadmissible and there fore any statements made there afte r inadmissible, as well. Counsel argued defe nd an t was in custody when she was transporte d to Are a 2 for questioning a

nd place d in a l ocked r oom with police awa re of her outstandingwar

rant. He
argued a r easona

ble per son would not have fe lt free to leave. ¶ 13 At thi s p o i n t , t h e tri al judge noted that while there was no dispute defe ndant was in custody for her pending probation violation, he was uncer tain that one could say she was in custody for Wil liams’ murder. The State conce ded defe ndant was in custody on the war rant, but argued defe ndant was not in custody for the murder beca use she was a mere witness, not a suspec t, rende ringthe statute inapplica ble in its view. ¶ 14 Def

ense counsel responde d the evidenc e sug g ested otherwise since the police wer e only interested in what defe ndant had t o s ay ab o u t the murder, not her probation violation, but
most stridently maintained that whether defe ndant made the statement while in custody for murder or for the probation violation was of no m o m en t b eca use the statute prohibited admission of any statement “made as a result of a custo d i al i n terrog ation” likely to elicit incriminating evidenc e. Counsel further argued the o ffice r’s subjective view of the acc used’s status was immaterial f

or dete rmining c ustody

. ¶ 15 The court noted that polyg raph examinations wer e “par t of normal police investigations” and, as in this case , “[n] ot ever y police fac ility has all of the equipment lined up.” The court then stated it was “at a loss to find [a] reme dy .” The court noted that “[t] here may have been

some indications that it should have been videotaped,” “[b] ut to suppress it outrig ht for what I consider to be a non willful act is a reme dy that’s never been done befor e.” The court stated it was not prepa

red to do so. The court noted that the defe nse was fre e to argue at trial about

-4-the abse nce of a videotape d statement in order to attack the of

fice r’s c redibility

.

¶ 16 B. Motion to Suppress Part I I : Invocation of Right to Counsel ¶ 17 Fr om April 30 to May 2, 2007, defe ndant was interrog ated by police. Detec tive For berg

v id e o ta p e d the interrog ations and, prior to questioning defe ndant, advised her of her Miran d a rights. The defe nse prese nted a video of defe ndant’s May 1, 2007, exchang e with Detec tives Fo rb erg and Eberly and rested on the contents to prove defe ndant invoked her ri gh t t o counsel. In the video, Detec tive For berg enter ed the holding cell, appar ently at defe ndant’s
reque st. The followingexchang e then oc curr ed:
“DEF ENDAN T: I was g onna say uh–is it possible if I can uh–have a few day s to g et an attorne y

. DETECTIVE F ORBERG: A wha t?
DEF ENDAN T: A few

day s to ge t an attorne y

. DETECTIVE F ORBERG: We ca n’t g ive a f

ew da y s, no. DEF ENDAN T: How longcan I

– DETECTIVE FORB ERG: L ook, I ’ll be right back in okay

. L et me g et rid of this ***.”
The video shows Detec tive For berg exit ing the holding cell and returning less than a minute later, a ccompa

nied by Detec tive Eberly . The e x chang e continued a s follows:
“DETE CTIVE FORB ERG: Okay

. Are
, are you, are you reque sting–we re you reque sting a

n attorney beca use if you are we’ re done talking. O kay

. DETECTIVE F ORBERG: I mean that’ s it if y ou– DE FE ND AN T : But I don’t know how I can call, make no call (inaudible) all m y numbers at the c ounty

. DETECTIVE F ORBERG: Pardon?
DEF ENDAN T: All my

phone number s is at the county

. DETECTIVE F ORBERG: Do you no longe r wa nt to answer que stions?
DEF ENDAN T: Yea

h, Iwant to answe r questions.
DETECTIVE F ORBERG: Oka y . That’s fine then.” ¶ 18 Following this evidenc e, defe nse counsel argued that defe nd an t h ad u n eq u i v o cally
reque sted counsel when she asked for a few day s to obtain an attorney and the interrog ation should have cea sed t hen. He argued that beca use i t did not, any sta t ement made following defe ndant’s invocation of her r ight to counse l should be suppressed. ¶ 19 The trial court found the police responde d appropriately when they told defe ndant “a f ew day s” was too long to secur e an attorney and then direc tly questioned her as to whether she wanted to have an attorney

. The court found defe ndant voluntarily continued t o an swer questions. The court conclude d def e n d a n t’ s in v o c ation of her right to counsel was ambiguous and police questioning that followed did not violate Mir anda and denied the motion to suppress.

-5-¶ 20 Def endant then waived trial by jury and the case proce eded to a bench trial. T h e S t ate prese nted the testimony of two crime scene witnesses and Detec tive For berg
, alon g with defe ndant’s videotape d statements.

¶ 21 C. Trial Evidence ¶ 22 1. Crime Scene Witnesses and Evide nce ¶ 23 Ang el Moffe tt testified that she knew Wil liams, defe ndant
, an d o t h ers living at 7446 South C hamplain. Moffe tt testified that “lots of women,” including herself and defe ndant, would “come around” when Wil liams rec eived his social security chec ks, th en take W illiams’ money and property

. Around 3:30 p.m. or 4 p.m. on the afternoon of Wil liams ’ death, as Moffe tt approa ched Wil liams’ apar tmen t , a woman unknown to her opened the door and said Wil liams was sleeping

. Moffe tt, howeve r, had hear d the two arguing, with the

woman reque sting money and Wil liams saying he alre ady had g iven it to the woman. Moffe tt then encounte red defe ndant and her boy friend, O’Ne il, outside, wi t h t h e defe ndant exclaiming, “[ n]o one is gettingto Sweets today beca use we g ot this shit tied up,” causing O’Ne il to nod with a smi rk. ¶ 24 Shirley “Penny” Wil liams, an admitted cra ck addict, testified next that she lived at 7446 South Champlain. L ike Moffe tt, Shirley testified that defe ndant would pop in on day s when Wil liams was paid social security and that she had seen Wil liams with the unknown woman shortly befor e his death. On the day in quest ion, around 3:30 p.m. or 4 p.m., Shirley overhe ard defe ndant ask Wil liams for $10. When Wil liams denied having it, defe ndant said she knew he had rec eived his chec k and yelled, “I want my money , bitch.” S hirley hear d a smack, then saw W illiams with a sm all cut below his eye. W illiams obtained chang e for a $20 from O’Ne il to g ive defe n d an t an d proce eded downstairs beca use he had “compa

ny” there

. ¶ 25 About an hour later, Shirley returne d to the building, then h e a r d defe ndant scre am, “[t] hat bitch killed Sweets!” O’Ne il emer g ed from the baseme nt and order ed Shirley t o call the police. Shirley saw Wil liams lying on the bed with a pillow over his fac e, a cord by his neck, and blood smeare d on his body and the wall. Shirley returne d upstairs and saw defe n d an t leaving and O’Ne il running afte r her. The parties stipulated that Shirley omitted defe ndant’s alterc ation with Wi lliams in her initial st atement to the police

. ¶ 26 A postmortem examination reve aled Wil liams’ cause of death was due to an assault and, the manner of death, a homicide. Detec tives later rec overe d in Wil liams’ bedroom a curr ency exchang e rec eipt, dated April 3, 2007, at about 2 p.m., for a payout of $685 from the United States Trea sury for social security

. The parties stipulated that police als o recovere d an

unwra pped condom, latex g loves, an unopened folding knife, and a clothing iron. They also stipulated that at the time of Willi ams’ death, he had a blood alcohol level a

round 0.37.

¶ 27 2. April 20-21 Interview s Wi th Defe ndant ¶ 28 De t ec t i v e Fo rb er g t es t ified, as he had at the pretria l hearing, that he intervie wed defe ndant on April 20, 2007, at Are a 2 reg arding Wil liams’ death. Detec tive For berg added

-6-the following details. The interview took pla ce afte r midnight with both De tective For berg and Detec tive Eberly prese nt. Def endant stated that she found Wil liams lying on his bed with

a bloody pillow over his fac e. Def endant remove d the pillow, chec ked Wil liams’ pulse, then observe d a cord wra

pped around his neck, and scre amed. Be fore discovering Wil liams, defe ndant said she had seen a light-c omplected, larg e, big- cheste d fema le on Wil liams’ bed. ¶ 29 A second interview took place around 4 a.m. At that time, defe ndant stated that she and Wil liams had a spec ial relationship, “were closer tha n most people believed,” and ref err ed
to herse lf as his “g oddaughter.” Def endant speculated that the unknown woman had robbed and “knocke d out” Wil liams, then fled the scene

. Def endant also stated s h e h ad been smoking crac k wi th O’Ne il befor e dis covering Wi lliams’ body

. Following the i nterview ’s conclusion, the de tectives attempted to locate the unknown woman. ¶ 30 A t hird interview took place ar o u n d 7 a.m. At that time, the t wo detectives confr onted defe ndant about her “violent action s” in an unrelated case toward her friend Coffey

. Def endant stated that she had rea cted to Coffey ’s unwanted sexual advanc es. They asked defe ndant to submit to a polyg raph examination, and she agree d. The exam took place about 9 p.m. at 1819 PershingRoad. ¶ 31 A fourth interview took place about 1:30 a.m. on April 21, 2007, at 1819 Pershing Road. Def endant admitted she serve d as the lookout while O’Ne il and the unknown woman robbed Wil liams. She stated, howeve r, that violence was not part of the plan, but O’Ne il went “off

script” a nd struck Willi ams. ¶ 32 At this point, detec tives stopped the interview, and defe ndant was transfe rre d to the Cook County jail on her probation violation. On cross-e x aminatio n, Detec tive For berg acknow ledg ed that defe ndant di d not give written statements then a nd the interview s were not elec tronically rec orded, althoug h the police fac iliti es wer e equipped with rec ording equipment.

¶ 33 3. April 30-May 2 Videotape d Interview s Wi th Defe ndant ¶ 34 As stated, from April 30 to May 2, detec tives intervi ew ed d ef en d an t re gar d i ngthe murder. T hese inter

views we re vide otaped a

nd prese nted to the cour

t. ¶ 35 Detec tives first interviewe d defe ndant on April 30 around 3 p.m. for 20 minutes and on May 1 around 5 a.m. for about an hour. Def endant was twice advised of her Miranda rights and stated she understood. Def en d ant’s combined statements reve aled the following

. Def endant g ave various and shifting acc ounts of what occur red afte r she arrived at Wil liams’ residenc e around 3 p.m. on the day in question. Def endant stated th at b o t h O’ Ne il and Adre ana approa ched her with the plan to rob Wil liams, once he was dru n k an d aslee p. Def endant stated that she saw O’Ne il hit Wil liams “upside the head with the iron,” wra p the cord around Wil liams’ neck, and drag him. Adre ana had in hand Wil li am s ’ p ants, which defe ndant assumed contained his wallet. Adr eana handed O ’Ne il “something a nd took out the door.” Def

endant “panic ked,” then started “hollering .” Def endant further stated that she did not rece ive “one dime” of mone y , which wa s split between O’ Neil and Adr eana

. ¶ 36 About 10 a.m. on May 1, as set forth above, defe ndant asked whether it was possible to have a few day s to hire an attorney

. About 7:30 p.m., defe ndant agree d to be interviewe d by

-7-the polyg raph examiner, even though he did not have her h o o k ed up to the machine.

Def endant stated that she had lived with Williams for about three to f ive year s and had sex with him a couple of times. Wil liams on one occa sion had attacke d her with a knife, but she “just *** threw him down” and left. Def endant further stated that Wil liams rec eived money

on the first of the month and about $900 in social security on the third. He paid $200 to $350 for rent. Def

endant admitted having robbed Wil liams some four times in the past, but denied doing so on April 3. Def

endant then asked that the i nterview stop beca use she did not like the questions. ¶ 37 Around 10 p.m., defe ndant reque sted cig are ttes and asked the polyg raph examiner how much time acc idental murder car ried, and a conver sation ensued. The examiner, at one point, whispere d: “[C] an I

tell you a sec ret? Ithink y ou did it.” Defe ndant then admitt ed that she had acc identally

killed Wi lliams. Her combined statements to the polyg raph e x aminer a nd Detec tives For

berg and E b er l y , wh o wer e called in, reve aled that while drunk and high, defe ndant went to Wil liams’ bedroom to borrow $20. Wil liams reque sted some s exual activity
, which defe ndant ref u s ed
, an d he went to g et his knife. Def endant stated that she “just snapped,” rea ched for the “next thing,” which was the clothing iron, and beat Wil liams

over the head with it, then wra pped the cord around his neck. Def endant stated that Wil liams had stabbe d her be fore with a knife and she was afr aid for her life. She stated that she only wanted to bor

row money

from Willi ams, but did not int end to kill him. ¶ 38 About midnight o n May 2, defe ndant g ave her final inculpatory statement. De fenda nt added that she had been on a three -day cra ck b i n ge wh en she asked Wil liams to loan her $200. Def endant added that O’Ne il knew she “wa s g oing to g et the money” even befor e she initially enter ed W i l l i ams ’ room. She had tol d him “I ’m about t o g et S wee ts,” and O’Neil responde d, “yeah we can g et him.” O’Ne il then ushere d Adre ana out of Wil liams’ room befor e defe ndant enter ed. On enter ing, defe ndant ag ain stated that Wil liams made sexual advanc es, she ref

u s ed
, an d Wil liams stated, “bitch I ’m about to kill you,” at which time defe ndant beat him with the clothing iron. Def endant washe d the blood from her fac e and hands and place d her shirt in the g arba g e outside. She stated that once she rea liz ed what she had done, she panicke d and left without money

. Def endant then smoked cra ck with O’Ne il but did not tell him what she had done. She later enter ed Wil liams’ room, feigned surprise, and yelled, “oh my

God that bitch did kill S wee ts.” ¶ 39 Def

endant stated that people in the house then came downstairs and observe d Wil liams. Everyone, including defe ndant, eventua lly return ed upstairs, but O’Ne il rema ined in the baseme nt. Def

endant said O’Ne il “g ot the money” beca use she had told him wher e Wil liams “proba bly had hidden it,” which was likely under the mattress or the rug

. Detec tive For berg asked defe ndant specific ally when she discovere d that O’Ne il had obtained the money

. She responde d, afte r they had returne d from the police station beca use she used $250 at that time
to buy five bag s of cra ck, which they smoked for two day s. Detec tive For berg presse d, “[b] ut when did Kevin tell you that h e had found the money and wher e he found it? ” Def endant responde d that O’Ne il did not have to tell her, say ing he would not have gotten the money from any wher e else. She also stated it was possible that O’Ne il could have taken more than $250.

-8-¶ 40 4. Trial Court’s Ruling

¶ 41 Following evidenc e and argument, the court found defe ndant guilty of count VI I
, felony murder predic ated on arme d robber y , to merg e with counts VI I I and IX (murder and arme d robber y , respecti vely

). In so finding
, the court relied almost exclusively on defe ndant’s inculpatory sta t em en ts. The court noted it did not believe defe ndant had approa ched Wil liams w ith the intent of killing him, but rathe r that defe ndant wanted to take his mone y and “[a] neg otiation of sorts took place ,” and when defe ndant “re al i zed that she wasn’t
g etting the money ,” she g rabbe d the iron and beat Wil liams to death. The court deter mined that Wil liams, a “drunk old man,” did not pose a threat, and defe ndant was not in fea r of her life. The court found defe ndant, who “wa s covering up her trac ks,” deci d ed to blame the murder on the other woman. The court further found that defe ndant rela yed to O’Ne il the location of t he money , and “like vultures picking off piece s of proper ty ,” the money was taken a nd used for

a longdrugbinge

. ¶ 42 Def

endant filed a motion for a new trial. She argued inter alia that her motion to suppr ess

was improperly denied based on violations of section 103-2.1 and Miranda

. The court denied the motion for a new trial, and the case proce eded to sentenc ing, wher e defe ndant rec eived a 20-year term of imprisonment. Def endant a ppeale d.

¶ 43 I I . ANALYSI S ¶ 44 A. Untape d Confession ¶ 45 Def

endant first challeng es the lower court’s denial of her motion to suppress stateme nts. In deter mining whether a trial court has proper ly ruled on a motion to suppress, finding s of fac t and cre dibilit y deter

minations made by the trial court are acc orded g reat defe renc e and will be reve rsed only if they are ag ainst the manifest weight of the evidenc e. People v. Slater
, 228 I ll. 2d 137, 149 (2008). W e re v i ew de novo , howeve r, the leg al challeng e to the trial court’s ruling on a sup p re s s i on motion. Id

. Fur ther, it is proper for us to consider the testimony adduce d at trial, as we ll as at the suppre ssion hearing

. Id

. ¶ 46 Def

endant fi rs t co n t en d s h er i n cu l p at o ry s t at em en t s , made April 20-21, we re inadmissible under section 103-2.1 of the Code. Section 103-2.1 provides that any statement “made as a result of a custodial interrogation at a police station or other place of detention shall be presumed to be inadmissible as evidenc e ag ain s t t h e acc used” in a murder case unless it is elec tronically rec orded. (Emphasis added.) 725 I L CS 5/103-2.1(b) (West 2008). I f t he trial court finds by a prepondera nce of the evidence that this provision was vi olated, the statute further provides that “any statements made by the defe ndant during or following that non-re corde d custodial interrog ation, even if otherwise in compliance with this Section,

are presumed to b e in admissible.” 725 I L CS 5/103-2.1(d) (West 2008). Def endant arg

ues she

was subject to a custodial interrog ation at Are a 2 and at the initial polyg raph office wher e her
statements wer e g iven, but not rec orded as require d. There fore
, she argues her statements made then a

nd there afte r should be pre sumed inadmissible. ¶ 47 The State responds that defe ndant’s statements wer e not “made as a result of a custodial interrog ation,” thus rende ring section 103-2.1 inapplicable. The State further contends, even if they wer e the produ ct o f a custodial interrog ation, the statements wer e voluntary and

-9-reliable

.

¶ 48 As a p reliminary matter, we observe that the trial court deter mined defe ndan t wa s i n custody on her probation violation and, further
, that “[t] here may have been some indications that [defendant’ s statement] should have b e e n v ide o ta p e d ” u n d e r s e ction 103-2.1. In appar ent contra diction of these observations, the court declined to find that defe ndant was subject to

a custodial interrog ation under section 103-2.1. Thecourt we nt on to state it was “at a loss
to find [a] reme dy” g iven the novel nature of the statute. The court further found that to the
extent there was a violation of section 1 0 3 -2

. 1
, i t was “nonwillful” beca use there was no

rec ordingequipment at the police fac ility

. ¶ 49 We disagree with the tr i al co u rt ’s an al y s i s and conclusions in this specific reg ard. Whether the police willfully intended to violate section 103-2.1 wa s not dispositi ve. The dispositi ve matter was simply whethe r t h e police subjected defe ndant to a custodial interrog ation on April 20-21, thus trig g ering the require ment under section 103-2.1 that they videotape h er statement. Be cause the court’s finding s sug g est it found Detec tive For berg

cre dible, we may addre ss this matter in the first instance. See Slater
, 228 I ll. 2d at 154. For the rea sons stated below, we conclude defe ndant was subject to a custodial interrog ation in violation of section 103-2.1 when she made her April 21 inculpatory statement. Given that fa ct and Detec tive For

berg ’s testimony that there was indeed rec ording equipment at t h e police fac ility when defe ndant made that statement, we also conclude the trial court’s fac tual finding s were ag ainst the manifest we ight of the evidenc e. ¶ 50 In addre ssing defe ndant’s claim in the first instance, we observe that our primary purpose in examining section 103-2.1 of the Code is to g ive eff ect to the leg islature’s intent, the best evidenc e of which is the statute’s plain and ordinary languag e. See People v. Swift
, 202 I ll. 2d 378, 385 (2002). In addition to the statute’s plain languag e, we also may consider the

rea son and necessity for the statute, the evils to be re medied, and the objects and purposes to be obtained. People v . Lucas , 231 I ll. 2d 169, 176 (2008). ¶ 51 The leg islature enac ted section 103-2.1 of the Code in 2003, on the heels of the Report of the Gove rnor’ s Commi ssion on Capital P unishment (Report), whic h rec ommended that

c u s to d ial interrog ations of homicide suspects in police stations be videotaped in their entirety

so as t o streng then confidence in the “ulti mate outcome of a capital case.” See R eport, ch. 2, at 19-20 (Apr. 2002); People v. Buck
, 361 I ll. App. 3d 923, 942 (2005); Pub. Act 93-206 (ef f. July 18, 2005) (adding 725 I L CS 5/103-2.1). The only fair rea ding of the statute is that the l eg islature’s clear intent was to ensure that statements related t o murder investigations

wer e not a result of the coer cive pressure s of custodial interrog ation in a police fac ility but, rathe r, we re both voluntary and re liable. See 725 I L CS 5/ 103-2.1(f ) (West 2008). ¶ 52 Un d er t h e s t atu te, a custodial interrog ation occur s when a rea sonable person in t h e suspect’s position would consider herse lf “in cust ody” and is prese nted with a question “re asonably likely to elicit an incriminating response .” 725 I L CS 5/103-2.1(a) (West 2008). Wit h that, the leg islature codified t h e common-law definition of custodial interrog ation develope d in Miranda and p ro g eny

. Miranda held that a “custodial interrog ation” meant questioning initiated by law enforceme nt office rs afte r a person has been taken into custody

or otherwise deprive d of her fre edom of action in any signific ant way

. Miranda
, 384 U.S. at

-10-444; see al s o St a n s bury v. Calif ornia
, 511 U.S. 318, 324-25 (1994) ( per curiam ) (custody deter mined by how a reasonable person perc eives her fre edom to leave ); Rhode Island v. Innis
, 446 U.S. 291, 301 (1980) (noting an interrog ation is police prac tice rea sonably likely
to elicit incriminating response from suspect). Miranda rec og nized that incommu n icado interrog ation–afte r a person is whisked from street to station for questioning, isolated from family and friends, and s u d d enly loses fre edom of the outside world–trade s on an individual’s wea kn ess and insecurity and prese nts inhere ntly coer cive pressure s that may compel a person to speak rathe r than ref rain fr o m as k i n g for the interview to terminate. Howes v. Fields , No. 10-680, slip op. at 10-12 (U .S. Feb. 21, 2012); Miranda
, 384 U.S. at 455-56. To counter act these coer cive pressure s and safe guard the fifth amendment privileg e ag ainst self-inc rimination, Miranda held that an individual subjected t o custodial interrog ation must be war

ned befor e any questioning that she has a right to rema in silent, that
any statement she makes may be used as evidenc e ag ainst her, and that she has a right to the
prese nce of an attorney

. Miranda , 384 U.S. at 444, 467. L ike the war nings in Miranda
, we conclude the videotape require ment under section 103-2.1 serve s a p r o te c tiv e purpose. Given that fac t and section 103-2.1’s codification of “custodial interrog ation,” we turn to Miranda

case law for guidance in deter mining whether defe ndant here was subject to a custodial interrog ation at the time of he r April 21 inculpator y statement. We also find Miranda case law helpful in analy

zing the voluntariness of defe ndant’s statem en t s

. J ust as Miranda decla red that voluntary statements are not barr ed by the fifth amendment, the statute decla res that voluntary

and re liable statements ca n be admitted even if

they are not videotaped. See Miranda
, 384 U.S. at 478; 725 I L CS 5/103-2.1(f) (West 2008). We emphasize that Miranda

case law ser

ves only as guidance ; it is not determinative. ¶ 53 Our supreme court has decla red that whether a defe ndant made a statement in a custodial setting require s an examination o f the surrounding circ umstances of the interrog ation. Slater
, 228 I ll. 2d at 150. Relevant fa ctors include: (1) the location, time, le ng th, mood, and mode of the questioning; (2) the number of police office rs prese nt during the interrog ation; (3) the
prese nce or absenc e of family and friends of the individual; (4) any indicia of a formal arr est proce dure, such as the s h o w o f we apons or forc e, phy sical restra int, booking or fing erprinting; (5) the m anner by wh i ch t h e i n dividual arrived at the pl ace of questioni ng ; and (6) the age
, intelligenc e, and mental m akeup of the accused. Slater
, 228 I ll. 2d at 150. After examining and weighing these various fac tors, a re viewingcourt then must make an

o b j ective deter

mination as to whether
, under the fac ts prese nted, “a rea sonable person, innocent of any crime” would have believed that she could terminate the encounte r and was fre e to leave . (Interna l quotation marks omitted.) Id

. ¶ 54 Having examined the Sl a t er fa ct o rs , we co n cl u d e t h at fac tors (1), (3), and (5) demonstrate that defe ndant was unquestionably subject to a custodial interrog ation when she made her initial inculpatory statement. The evidenc e shows that police picked defe ndant up from her friend’ s house ar ound midnight on April 20, afte r sear ching for her for more than

a we ek, then tra

nsported her in an unmarked squad car to the police station and plac ed her alone, without family or friends, in an interview room that was likely locked. See People v. W heele r , 281 I ll. App. 3d 447, 456 (1996) (p o l i ce qu est ioning at station house supports argument that suspect was in custody ). Given the late-night police pi ckup and defe ndant’s

-11-disappea ranc e following her discovery of Wil liams’ body
, we can presume she did not desire
contac t with police. Once at the station, defe ndant admitted she prese nted police with a false

name beca

use she had an outstanding war rant for her arr est on a prob at i o n v i olation. Detec tive For

bergconfirme d this information a nd testified defe ndant was not f ree to leave
at that point. Give n these fac tual circ umstances, we cannot acc ept that a r easona ble person would have felt fre e to leave when the police office r testifies that he would not have let her
g o. The only

logic al re sult here is to conc lude that def endant wa s “in custody .” ¶ 55 The State counter s this conclusion by argui n g t h at d ef en d an t was not in custody for Wil liams’ murder becau s e “t he circ umstances demonstrated a lack of a formal arr est proce dure as to the murder.” In making this argument, the State infers t h at defe ndant’s custody on the proba

tion violation i s irrele vant. This rea soning is misguided. ¶ 56 In the case sub judice
, the only fair rea ding of the circ umstances in the rec ord is that the police held defe ndant in continued custody on the probation violation and, at best, used this custody to ma sk their intention to question her solely about the murder of Wil liams, a man with whom defe ndant repor tedly had a history of violence. Given the manner in which police conducte d the i nterrog ation, we do not believe a re asonable person would have felt fre e to terminate the encounte r. See Fields
, slip op. at 1 3 (w h en a prisoner is questioned, the deter mination of custody should focus on all of the features of the interrog ation); Maryland

v. Shatzer
, 559 U.S. ___, ___, 130 S. Ct. 1213, 1224 (2010) (noting Miranda protec ts ag ainst the dang er of coercion that results from the interaction of custody and officia l interrog ation). Def en d an t wa s subjected to 5 interviews over 24 hours that wer e conducte d with a confr ontational mood of questioning, and Detec tive For berg did not convey that defe ndant could decline t o answe r questions. See People v. Braggs
, 209 I ll. 2d 492, 511-14 (2003); P eo p l e v. Townes
, 91 I ll. 2d 32, 37 (1982); W heele r , 281 I ll. App. 3d at 456; cf

. P eo p l e v. An derson , 395 I ll. App. 3d 241, 254-55 (2009) (finding defe ndant who willingly went to police station, but then was held over 24 hours there
, questioned, and asked to take polyg raph

exam was considere d “fr ee to leave ”). Interview s took place at midnight, 4 a.m., and 7 a.m., during which time detec tives confr onted defe ndant about her prior offe nse ag ainst Wil liams and “violent acti o n s ” t o wa rd Coffey

. See W heele r , 281 I ll. App. 3d at 456. Detec tives

s ub s eq u en t l y asked defe ndant to take a polygraph exam at 9 p.m., which she did. The examiner repor

ted that deception was noted reg arding whether defe ndant knew the identity of the bludge oner, and defe ndant then implicated O’Ne il in the crime afte r having previously also implicated the unknown pr ostitut e. De tectives did not rest on def endant’ s impli cation of other individuals and cea se their questioning of her. I f any thing, the rec ord reve als rathe r

a l as er beam focus on defe ndant’s involvement in the Wil liams murder. Police aga i n i n terview ed her on April 21 at 1:30 a.m., at which time they rela yed to her t h e p o l y grap h results and, presumably
, the noted deception. See W heele r , 281 I ll. App. 3d at 456. Given the persistent custodial questioning reg arding a murder at early and late hours, we do not believe

a rea sonable person, innocent of the crime, would have felt fre e to terminate the encounte r. T his was more than mere investigatory questioning; it was a custodial interrog ation o f a murder suspe ct. See People v . Lopez , 229 I ll. 2d 322, 353-54, 363 (2008). ¶ 57 In rea ching t his conclusion, we find Detec tive For berg ’s t estimony that defe ndant was
not a suspect for Wil liams’ murder prior to her April 21 inculpatory s t at em en t to be

-12-disinge nuous at best. See Lopez
, 229 I ll. 2d at 363-64. The polic e kn ew d efe ndant had

discovere d Wil liams’ body on the day he was murdere d and that she had a violent history with the dece ased. She had a reputation among neighbors for beating Wil liams and stealing his money
, althoug h she also was repute dly his “ companion.” T his neig hborhood “g ossip”

was corr oborate d by a police case repor t that defe ndant had committed a prior offe nse ag ainst Wil liams and other “violent actions” ag ainst her friend Coffey

. The police, moreove r, knew defe ndant had p rovi ded a false name, then disappea red from the crime scene shortly afte r discovering Wil liams’ body

. Given the trajec tory of the police questioning, as wel l as the fac ts with which they confr onted defe ndant, it is fair to conclude that th ey conveyed suspicion of guilt to defe ndant. See W heele r , 281 I ll. App. 3d at 457. Police should have known that defe ndant could be moved to make incriminating statements in response to their persistent questioning . See Innis , 446 U.S. at 302-03. ¶ 58 Ba sed on the foreg oing, we conclude that defen d an t made her i ncriminatingstatement “as a result of a custodial interrog ation at a police station or other place of detention.” Under section 103-2.1, it should have been presumed inadmissible as substantive evidenc e ag ainst defe ndant in her murder trial beca use her st at em en t was not elec tronically rec orded. 725 I L CS 5/103-2.1(b) (West 2008). Def endant argues that all incrim inating statements, including the later videotaped statements wher ein she h er s el f admitted to murdering Wil liams, must now be presumed inadmissible under subsection 103-2.1(d)

. See 725 I L CS 5/103-2.1(d) ( West 2008). ¶ 59 The State responds that, under subsection 103-2.1(f ), the presumption of inadmissibili ty in this case was overc ome “by a preponde ranc e of the evidenc e that the statement was voluntarily g iven and is reliable
, based on the totality of the circ umstances.” 725 I L CS 5/103- 2.1(f) (West 2008). The State maintains the trial court s p ec i fi cally found defe ndant’s statements, includingthat on April 21, wer e voluntary and sugg ests we may aff irm on that basis. ¶ 60 We disagree

. The portions of the rec ord on which the State relies in making its argument offe r no support. The State, fo r ex am p l e, points to the trial court’s final statements made befor e deny

ing defe ndant’s motion to suppress under section 103-2.1: “The whole purpose of this body

of law on videotaping statements is be cause some leg islatures raised c oncer ns about whether statements wer e ac tually voluntary or not. *** It is all about voluntariness.” The court’s statements, when rea d in context, wer e clea rly commentar

y on the purpose of the
statute and made in r esponse to def ense c ounsel’s ar gument; the y wer e not f indings of fac t

or conclusions of law on the rec ord reg arding whether defe ndant’s April 21 sta t em en t o r others we re voluntar

y

. ¶ 61 Indeed, under the circ umstances in this case , such finding s would make littl e sense. As discussed, the trial court failed to make an expli cit deter mination that defe ndant was subject
to a custodial interrog ation under subsection 103-2.1(b)

. The court decla red, instead, that the
statute simply did not lend a v i ab l e reme dy

. See 725 I L CS 5/103-2.1(b) (West 2008). Consequently
, defe ndant’s April 21 statement was not deeme d presumptively inadmissible (see 725 I L CS 5/103-2.1(d) (West 2008)), and the burden of proving defe ndant’s statements both voluntary and reliable never technica lly shifted to the State under subsection 103-2.1(f ). 725 I L CS 5/103-2.1(f) (West 2008); compar e People v. Richardson
, 234 I ll. 2d 233, 254

-13-(2009) (discussing burden shifting under section 114-11 (725 I L CS 5/114-11 (West 2008));

burden of proving a confe ssion voluntary is on the State). The State did not prese nt evidenc e

on that issue or even argue itto the trial court. We thus decline to conclude that defe ndant forf eited the issue of voluntariness on appea l, a s the State now urg es, when the State failed
to prese nt any pretri al ev idence to which defe ndant could object. Def ense counsel did not stipulate t h at d efe ndant’s April 21 statement or her later statements wer e voluntary or reliable , and the issue wa s never fully addre ssed. ¶ 62 The State nonetheless now argues the totalit y of the circumstance

s in the rec ord befor e

us demonst ra tes that defe ndant’s April 21 statement was both voluntary and reliable

. The State points to defendant’ s ag e, 39, eleve nth-grade education, a nd criminal history , but the State relies principally on defe ndant’s videotaped statements, made April 30 to May 2, some 10 day s afte r defe ndant’s initial det en t i o n o n April 20. The State notes the fluidity with

wh ich defe ndant conver sed and cooper ated with detec tives, as well as the absenc e of phy sic a l

or mental coer cion, observing that defe ndant at one point stated detec ti v es we re “father figures” and asked them to hug her. The State argues there is no other conclusion but that d ef endant’ s statements wer e voluntary and the State thus fulfilled its burden under t h e statute. ¶ 63 As the State notes, the test for voluntariness is whether the defe ndant made the statement fre ely
, voluntarily
, and wi thout compulsion or inducement of any sort, or whether the defe ndant’s will was overc ome at the time she confe ssed. Slater
, 228 I ll. 2d at 160. Fa ctors for deter mining voluntariness include: (1) the defe ndant’s ag e, intelligenc e, education, experience
, and phy sical condition at the time of the detention and in terrog ation; (2) the duration of the interrog ation; (3) the prese nce of Miranda war nings; (4) the prese nce of any phy sical or menta l abuse; and ( 5) t he lega lity and duration of the detention. Slater , 228 I ll. 2d at 160. ¶ 64 Under

mining the State’s argument in this specific reg ard is the ineluctable fac t that no evidenc e was prese nted at the pretria l hearing on whether defe ndant’s April 21 statement, made afte r hours of custodial interrog ation, was voluntary and reliable

. See, e.g. , People v. Smith
, 197 I ll. App. 3d 226, 231 (1989) (State did not discharg e evidentiary b u rd en ). The videotaped statements cannot now be used to fill this evidentiar y g ap. For example, there was

no evidenc e prese nted on defe ndant’s phy sical or mental state at the time she made her April 21 statement; we do not know whether defe ndant was fed o r all owed to use the bathroom then. L ikewise, the adequa cy of Miranda war nin g s rema ins unclea

r. Detec tive For

berg testified he did not g ive defe ndant Miranda war nings befor e she g ave her April 21 inculpatory statement. Although the polyg raph examiner prese nted defe ndant with a consent fo rm containing Miranda war nings around 9 p.m. on April 20, and defe ndant signe d th e fo rm , t he polyg raph examiner did not testify

. We do not know whether the examiner
repr esente d the form as perta ining only to defe ndant’s polyg raph exam or the overa ll police interrog ation. See W

heele r , 281 I ll. App. 3d at 458 ( Mirand a wa rn i ng s in polyg raph form pert ai ned only to polyg raph examination and, as detec tives did not otherwise rea sonably
convey war

nings, Miranda war

nings wer e deeme d inadequate). The evi d en ce does not demonstrate that defe ndant knowing ly and intelligently waived the Mi randa rights in the
consent form. See Missouri v. Seiber t , 5 4 2 U.S

. 600, 609 (2004) (noting it is the State’s

-14-burden to prove Miranda waiver); People v. Crotty
, 394 I ll. App. 3d 651, 662 (2009) (wa iver

valid if voluntary
, i.e.
, not result of coer cion, intimi dation, deception, and done with full

awa rene ss of rights abandone d and conse quence s of decision). Given the rec ord befor e us, we cannot s ay defe ndant’s April 21 statement was voluntary and not simply a re sult of t he inhere ntly coer cive atmosphere of

custodial interrog ation at a police fac ility

. ¶ 65 A contra

ry holding would require that we presume fac ts not in evidenc e, which we will
not do. Whil e we revie w the leg al issu e of voluntariness de novo , the foundation of that deter mination is a fac tual one which the trial court has the exclusive task of considering

. See In re G.O.
, 191 I ll. 2d 37, 50 (2000) (re viewing courts should not be made to surmise what fac tual finding s trial court made reg arding voluntariness); People v. Meloc k
, 149 I ll. 2d 423, 462 (1992) (pre liminary inquiry into v oluntary nature of confe ssion is for the trial court). Although the issue befor e us would normally require simple rema nd on the specific issue of voluntari n es s and rela

bility
, not a new trial (see People v. King
, 61 I ll. 2d 326, 329-30 (1975))
, our dispositi on on defe ndant’s second claim require s that we reve rse the judgme nt of the trial c ourt and re mand for a new tria l. ¶ 66 Prior to retrial
, t h e i s s u e o f whether defe ndant’s April 21 inculpatory statement wa s voluntary and reliable there fore must be considere d. We emphasize that whether defe ndant’s
statement was reliable is a separ ate inqu i ry fr o m whether it was voluntary

. See 725 I L CS 5/103-2.1(f) (West 2008). We further conclude that, g iven our disposit i o n o n defe ndant’s second claim, defe ndant’s May 1-2 vi deotape d statements ca nnot be used in analy

zing t he totality of the circ umstances reg arding whether d e f e n d a nt’ s April 21 statement was voluntary and reliable

. I f the State cannot meet its burden of proof under the s t atut e, the April 21
statem en t and any admissions g ather ed as a result of that statement are nece ssarily inadmissible as substantive evidenc e.

¶ 67 B. Invocation of Counsel ¶ 68 Def

endant’ s second contention on appea l is that her right to have counsel prese nt during custodial interrog ation was violated when detec tives conti n u ed to question her afte r she asked for an attorney

. See Edwards v. Arizona
, 451 U.S. 477 (1981). The State responds that “def endant’ s inquiry was direc ted to the availability of a lawyer and was not an unequivoca l
reque st for counse l.” ¶ 69 Un d er Mi r a n da
, and as a means to protec t the fifth amendment right ag ain s t s el fincrimination, an individual subjected to custodial interrog a tion or under the imminent threat of interrog ation is en t i t l ed to have reta ined or appointed counsel prese nt during the questioning. Miranda
, 384 U.S. at 444-45; People v. Schuning
, 399 I ll. App. 3d 1073, 1081- 82 (2010). I f th e acc used reque sts counsel at any time during the interview, she cannot be subject to further questioning until a lawyer has been made available o r the individual reinitiates conver sation. Edwards
, 451 U.S. at 484-85; In re Christ opher K.
, 217 I ll. 2d 348, 376 (2005). In applying this ri gi d prophylactic rule develope d in Edwards
, courts must deter mine whether the acc used actua lly invoked her right to counsel. Davis v. United States
, 512 U.S. 452, 458 (1994); In re C h r is t o p h er K.
, 217 I ll. 2d at 376. This is an objective inquiry
, which at a mi nimum require s some statemen t that rea sonably can be construed as

-15-an expression of a desire for counsel. Davis
, 512 U.S. a t 459; In re Christopher K.
, 217 I ll. 2d at 378. A ref

ere nce to an atto rn ey that is ambiguous or equivoca l, acc ording to a

rea sonable office r in the circ umstances, does n ot require cessation of questioning. Davis
, 512 U.S. at 459; In re Christopher K.
, 217 I l l

. 2 d at 378, 381. That is, the invocation must be

s u fficiently fre e from indecision or doubl e meaning so as t o rea sonably inform authorit i es that the acc used wishes to speak to counsel. In re Christopher K.
, 217 I ll. 2d at 382; People v. Tacke tt , 150 I ll. App. 3d 406, 418 (1986). ¶ 70 In this case , the videotaped evidenc e shows that about 10 a.m. on May 1, defe ndant asked whether it was “possible” to “have a few day s to g et an attorney ,” to which Detec tive For berg responde d, “no.” Def

endan t beg an to ask, “[h] ow long can I –“ but was interrupted by Detec tive For

berg
, who momentarily left the holding cell. On his return less than one minute later, Detec tive For

berg asked defe ndant whether she was reque sting an attorney beca use if she was, they wer e “done talking.” Def endant responde d, “[b] ut I don’t know how I can call, make no call (inaudible) all my numbers at the county .” Detec tive For berg stated, “ [p ]a

r don,” and defe ndant repe ated, “[a]ll my phone numbers is at the county .” Detec tive For berg then 1 inquired, “[d] o you no longe r want t o an s we r questions? ” Def endant responde d, “Ye ah, I
want to answe r questions.” ¶ 71 Here, t h e t ri al court conclude d that defe ndant’s invocation of her right to counsel wa s ambiguous and the police questioning did not violate Miranda

. The court further conclude d that defe ndant voluntarily continued to answe r questions. We disagree with those deter minations. ¶ 72 We conclude that defe ndant’s query , whether it was “possible” to “have a few day s to g et

an attorney ,” constituted an unequivoca l invoc ation of her right to counsel under Miranda

. See Smith v. Illin o is , 4 6 9 U. S

. 91, 97 (1984) ( per curiam ); Schuning
, 399 I ll. App. 3d at 1086; People v. Eichwedel
, 247 I ll. App. 3d 393, 398 (1993). Any ambiguity in her statement

was with reg ard to how long it would take and the proce ss of acquir ing an attorney , not with
reg ard to whether defe ndant wa nted one. This conclusion is buttressed by defe ndant’s subsequent re s p o n s e o f, “how long” would she in fac t have to secur e an attorney , and her
statement that she did not know how to contac t one beca use her cell phone numbers wer e unavailable

. De t ec t i ve Forber g ’s response that defe ndant could not have a few day s to g et

an attorney and his lack of a response to defendant’s query about how she would secur e telephone numbers, presumably for the purpose of contac ting an attorney , g ave defe ndant the

err oneous i mpression that counsel could not be made a vailable or appointed then or i n the

Acco rdi ng to the Sta te , def end ant did not say tha t al l her phon e numbers wer e at the cou nty 1 but
, ra the r, “[ a] ll m

y bond m one y is at the cou nty.” T he tr ia l cou rt re viewed the videot ape and found to the con tr ary tha t def

end ant ind ic at ed h erpho ne n um ber s we re atth e c ount y. We have reviewed the videot ape and fou nd, con si st ent wit h the tr ia l cou rt , tha t def end ant re fe re nce d her te le phon e numbers
, not bond m one y. We fur the r not e tha t our int erpre ta ti on of def end ant ’s st at ements at thi s poi nt in the videot ape con ta ins se veral m ino r d if fe re nce s f rom t hat in the tr ans cr ipt

. For exa m ple
, the tr ans cr ipt st at es tha t Det ect ive Forber g asked def end ant : “Do you or (i nau dib le ) want to ans wer que st ion s?” Our re view of tha t st at ement re veals tha t Det ect ive Forber g st at ed: “Do y ou no long er wantto ans werque st ion s?”

-16-near future. Detec tive For berg should have cea sed questioning defe ndant. Def endant’s postrequest response s to further interrog ation cannot be used to cast retrospe ctive doubt on her e arlier

reque st for counse l. See Smith , 469 U.S. at 100. ¶ 73 In rea ching this c onclusion, we find the State’s relianc e on People v. Evans
, 125 I ll. 2d 50 (1 9 8 8 ), an d P eople v. Quev edo
, 403 I ll. App. 3d 282 (2010), to be misplaced. In both

case s, the defe ndants interrupted d et ec t i ves in the midst of rea ding Miranda rights for clar ification purpose s. In Evans , the def endant stated: “ ‘W e can t ake time for y ou to ge t a PD [public defe nder], right? ’ ” Evans
, 125 I ll. 2d at 74. When the police office r responde d that it would “ ‘take a littl e while,’ ” that questioning would stop, and that he would call the public defe n d er , the defe ndant said, “ ‘[n] o, g o ahea d.’ ” Id

. In Quev edo
, afte r a series of leng thy exchang es betwee n the police and defe ndant clar ifyi n g the right to counsel, defe ndant stated: “ ‘[u] hhhh–huh. Then we’ re still g oing to wait until the attorney arrives,’ ” and later, “ ‘ca

n the attorney come right now? Right this minute? ’ ” Quev edo
, 403 I ll. App. 3d at 293. The police responde d that an attorney was not available that night but that defe ndant could re qu es t counsel and end the conver sation at any time. Id

. Def endant then stated, “ ‘[n] o, then let’s do it like you say

. I ’ll answe r what–what you guy s ask me.’ ” Id

. In both case s, the courts deter mined that the defe ndants did not make unambiguous reque sts for counsel but, rathe r, wer e mere ly inquiring afte r the availability of a lawyer. See Evans
, 125 I ll. 2d at 75; Quev edo , 403 I ll. App. 3d at 293-94. ¶ 74 Unlike in Evans and Quev edo
, defe ndant called Detec tive For berg into the holding cell hours afte r being informed of her Miranda rights. She did not ask whe ther an attorney was available
, but rathe r how long she had to secur e one in light of the fac t that she did not have her telephone contac ts. Also unlike in Evans and Quev edo
, here
, defe ndant appea rs to have

answe red further questions only at Detec tive For berg ’s prompting. She did not cast her vote to talk rathe r than wait for an attorney beca use there wa s no indication one would be provided for her. Def

endant thus did not waive her fi ft h amendment right to counsel afte r

once invoking it. See People v. Carlson
, 224 I ll. App. 3d 1034, 1041 (1992) (holding same, wher e defe ndant inquired what his “options” wer e afte r attempting but failing to te lephone counsel, and dete c tive s did not inform defe ndant that he could make additional telephone call

or had right to counsel befor e speaking
, but rathe r questioned him further); see also Shatzer
, 559 U.S. at ___, 130 S. Ct. at 1219 (wa iver that comes at authorities’ behest an d n ot at suspect’s own instigation is itself product of inhere ntly compelling pressure s and not purely voluntary ). ¶ 75 Def

endant’ s confe ssions afte r she invoked her right to counsel on May 1 at about 10 a.m.

are presumptively involuntary under Edwards and should have been suppr e s s e d

. Se e S h a tzer , 559 U.S. at ___, 130 S. Ct. at 1226. This me ans defe ndant’s videotaped confe ssions (made specific ally on May 1 around 10 p

. m

. an d o n M ay 2 around midnight) that she murdere d Wil liams are no long er a dmissibl e as substantive e vidence

. ¶ 76 The State never theless argues th at d ef

en d an t ’s Ap ri l 2 1 co nfession, wher ein she implicated herse lf as the “lookout” but stated that it was O’Ne il who bludge oned Wil liams, still may be used to sustain defe ndant’s conviction and thus, any err or reg arding defe ndant’s subsequent May statements was harmless. As stated, we do know now whether the April 21 confe ssion was voluntary and relia b le and there fore proper ly admitted. Even assuming it

-17-wer e, the admission of defe ndant’s May statements afte r she invoked her right to counsel still

would require reve rsal and rema nd for a new trial in this case

. Confessions car ry “ ‘extreme probative weight,’ ” and there fore the admission of an unlawfully obtai n ed confe ssion is

rar ely harmless err or. People v. St. Pierre
, 122 I ll. 2d 95, 114 (1988); Eichwedel
, 247 I ll. App. 3d at 399. Her e, the trial court relied extensively on defe nd an t ’s confe ssion made following her invocation of her right to counsel to support her felony murder conviction. See People v. Daniels
, 391 I ll. App. 3d 750, 794 (2009). We cannot say b ey o n d a re asonable doubt that the trial court’s err or did not contribute to de fenda nt’s conviction. Id

. at 793-95. The err or was not harmless and we there fore reve rse defe ndant’s conviction and rema nd the

case for a new tria l. Id . at 795.

¶ 77 C. Sufficiency of the Evidenc e ¶ 78 Def

endant’ s third contention on appea l is that the State failed to prove her guilty beyond

a rea sonable doubt of the predic ate felony of arme d robber y

. We addre ss this issue beca use it affe cts retr ial. ¶ 79 The standard of revie w when assessing the sufficie ncy of evidenc e is, considering all the evidenc e in the light most favor able to the State, whether any rational trier of fac t could have fo u n d b ey ond a rea sonable doubt the essential elements of the crime. People v. Siguenza

Brito
, 235 I ll. 2d 213, 224 (2009)

. A criminal conviction will not be set aside unless the evidenc e is so improbable or unsatisfac tory as to cre ate a rea sonable doubt of the defe ndant’s
guilt. Siguenza-Brito , 235 I ll. 2d at 225. ¶ 80 In this case , the S tate charg ed defenda nt with first-degree murder predicated on arme d robber y

. As such, the State was require d to prove that defe ndant, without lawful justification, perf ormed acts that cause d Wil liams’ death while “att empting or committing” arme d robber y

. See 720 I L CS 5/9-1(a) (3) (West 2008). To prove arme d robber y , the State was require d to show that defe ndant, while arme d with a dang erous wea pon other than a firea

rm, took proper

ty from Wil liams’ person or prese nce by the use of force or by threatening the imminent use of forc e. See 720 IL CS 5/ 18-1, 18-2 ( West 2008). ¶ 81 The trial court conclude d that the State had fulfilled this burden afte r finding that it wa s clea r defe ndant wished to take Wil liams’ money , “[a] negotiation of sorts took pla ce,” and when defe ndant “re alized that she wasn’t g etting the money ,” she g rabbe d the clothing iron and beat Wil liams to death. T h e co urt further found that defe ndant rela yed to O’Ne il the location of the money , and “like vultures picking off pi eces of proper ty ,” the money was taken and used for a day s-long cra ck binge

. The court thus found defe ndant leg ally

acc ountable for

the ac tions of O’Ne il. See 720 I L CS 5/ 5-2(c ) (West 2008). ¶ 82 Def

endant argues t hat, contrary to the court’s f

indings, the evidence was not sufficie nt to prove beyond a rea sonable doubt that any money was taken from Wil liams’ apar tment and thus her arme d robber

y conviction must be reve rsed. In support, defe ndant argues there was

no evidenc e showing Wil liams had money on his person or in his room at the rele vant time, or that def

endant or O’Ne il actually

took Wi lliams’ money

. ¶ 83 The State responds that the circ umstantial evidenc e supports defe ndant’s conviction. We
agree

.

-18-¶ 84 It is well established that the elements of arme d robber y may be proved by circ umstantial evidenc e. People v. W

iley
, 165 I ll. 2d 259, 297 (1995). The habit or custom of rec eiving cash and keeping it in the victim’s home is proper ly admitted as circ umstantial evidenc e that the victim had money in his home at the time of his death. People v. Randle
, 277 I ll

. App. 3d 788, 801-02 (1995). When money or proper ty is no longe r in the place wher e it is habitually place d, for ex ample, it may be infe rre d that defe ndant took the property

. W iley
, 165 I ll. 2d
at 297. T h e ci rc u m stantial evidenc e, howeve r, must be of such a conclusive nature and produce a rea sonable and moral cer tainty that the offe nse charg ed was actua lly committed. People v . W

ilson , 37 I ll. App. 3d 560, 564 (1976). ¶ 85 The evidenc e in this case , viewed in a light most favor able to the prosec ution, e stablished a “ta king” sufficie nt to sustain defe ndant’s ar med robbe ry

conviction. See Randle , 277 I ll. App. 3d at 802. The evidenc e showed that Wil liams rec eived his social security chec k on the first and thi rd of eac h month an d k ept it at hi s home. Defenda nt, awa re of this fac t, would then fre quent Wil liams’ apar tment for the purpose of taking his money and admitted having robbed him four t i m es in the past. Def endant confe ssed that on April 3, 2007, the day in question, she had planned to rob Wil liams and apprised O’Ne il of that plan, informing him that the m oney was li kely hidden un der the mattress or rug

. She told O’Ne il,“I ’m about t o g et S wee ts,” and O’Neil responde d, “yeah we can get hi m

. ” O’ Neil then us here d Adre ana out of W illiams’ room. Although defe ndant entered Willi ams’ room a round 3 p.m

. for the
purpose of securing the money , she then bludge oned him to death, panicke d, and repor tedly left wit hout a cent. A s hort time later, after defe ndant feigne d surprise at W illiams’ death, O’Ne il was left alone downstairs. There afte r, O ’ N e il produce d $250, which he and defe ndant used to purcha se cra ck and which defe ndant stated O’Ne il could not have obtained from
anyone else . Police later f ound a rece ipt showing Wil liams had rece ived $685 a few hours befor e his death, but no money was re cover ed fr om the scene

. ¶ 86 On these fac ts, we may infer that beca use Wil liams’ money was no longe r in its habitual place and g iven defe ndant’s admissions, defe ndant took the proper ty

. See W iley
, 165 I ll. 2d
at 297-300. This conclusion is streng then ed by the combined testimony of Moffe tt and Shirley
, which sug g ests that defe ndant was in c ahoots with O ’Ne il a nd used phy sical forc e to obtain money

from Willi ams shortly

befor e his death. ¶ 87 Finally
, we note that even if we were to fin d t h e ev i d ence i nsufficie nt to establish that defe ndant took Wil liams’ proper ty , it is more than sufficie nt to establish that defe ndant attempted to take defe ndant’s proper ty and in the proce ss murdere d him. See 720 I L CS 5/9- 1(a) (3) (West 2008). The evidenc e was sufficie nt to find defe ndant guilty beyond a

rea sonable doubt of m urder predic ated on arme d robber y

. Acc ording ly
, we c onclude ther e is no double jeopardy

impediment to retrial. See Lopez , 229 I ll. 2d at 367-68.

¶ 88 D. Corre ction of Mittimus ¶ 89 Def

endant finally reque sts that we corr ect the mitti mus to ref lect defe ndant’s conviction of felony murder rathe r than intentional first-degree murder. Be cause we reve rse and rema nd this case f

or a ne w trial, this issue is moot

.

-19-¶ 90 I I I . CONCLUSI ON

¶ 91 Ba sed on the fore g oing, we reve rse the judgme nt of the circ uit court of Cook County and

rema nd the case for a new trial consistent with this opinion. See Daniels
, 391 I ll. App. 3d at 794.

¶ 92 Reverse d and re manded.

-20-