1 

 2021 IL App (5th) 180339 

 NO. 5-18-0339 

 IN THE

 APPELLATE COURT OF ILLINOIS

 FIFTH DISTRICT

______________________________________________________________________________ 

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the

 ) Circuit Court of 

Plaintiff-Appellee, ) Madison County. 

 ) 

v. ) No. 15-CF-1880 

 ) 

ARYION SANDERS, ) Honorable 

 ) Neil T. Schroeder, 

Defendant-Appellant. ) Judge, presiding. 

______________________________________________________________________________ 

PRESIDING JUSTICE BOIE delivered the judgment of the court, with opinion.

Justices Moore and Vaughan∗ concurred in the judgment and opinion.

OPINION

¶ 1 A jury convicted defendant, Aryion Sanders, of first degree murder for the shooting death 

of James Hubbard. The trial court sentenced defendant to 43 years in the Illinois Department of 

Corrections. On direct appeal from his conviction and sentence, defendant argues, inter alia, that 

the trial court erred in allowing the State to introduce at trial, as substantive evidence, the transcript 

of defendant’s testimony from a prior trial during which defendant was impeached with statements 

that were excluded as substantive evidence pursuant to Miranda v. Arizona, 384 U.S. 436 (1966). 

For the following reasons, we reverse defendant’s conviction and remand for a new trial. 

∗

Justice Overstreet was originally assigned to participate in this case. Justice Vaughan was 

substituted on the panel subsequent to Justice Overstreet’s election to the Illinois Supreme Court and has 

read the briefs and listened to the recording of oral argument.

NOTICE

Decision filed 04/19/21. The 

text of this decision may be 

changed or corrected prior to 

the filing of a Petition for 

Rehearing or the disposition of 

the same.
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¶ 2 I. BACKGROUND

¶ 3 During the early morning hours of August 8, 2015, while walking along Oakwood Street 

in Alton, Illinois, Hubbard was shot four times. Bullet fragments were recovered from Hubbard’s 

body and shell casings were recovered from the area where his body was lying on the street. All 

of the shell casings and bullet fragments originated from the same .38-caliber semiautomatic 

weapon. Hubbard died from gunshot wounds to the head. Stippling on Hubbard’s skin at the 

bullets’ entry points indicated that the weapon was fired at close range. A surveillance video of 

the 700 block of Oakwood Street showed Hubbard walking and talking on his cell phone when the 

shooter appeared on the screen, made his way across the building at 743 Oakwood, and entered a 

cul-de-sac area, ultimately shooting Hubbard. An investigation led the police to suspect that 

defendant was the shooter. At the time of the shooting, defendant was 17 years old and lived with 

his family in a housing unit a few hundred yards from the site of Hubbard’s murder. Defendant 

participated in interviews with the Alton Police Department on August 10, 12, 13, and 14, 2015, 

in connection with the murder of Hubbard. On September 25, 2015, the State charged defendant 

with two counts of first degree murder stemming from the shooting. Each count charged defendant 

with the death of Hubbard based on a different legal theory for murder. Defendant was tried on the 

murder charges twice. During both of the trials, the primary factual dispute centered on the identity 

of the shooter. The first trial resulted in a hung jury, and the second trial resulted in the conviction 

and sentence from which defendant appeals. 

¶ 4 Prior to the first trial, on May 16, 2016, defendant filed a motion to suppress his statements 

to the Alton Police Department in which he confessed to shooting Hubbard. Defendant argued that 

his statements were obtained in violation of his due process rights under the fourteenth amendment 

of the United States Constitution (U.S. Const., amend. XIV) and article I, section 2, of the Illinois 
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Constitution (Ill. Const. 1970, art. I, § 2) and, therefore, should be suppressed. Defendant’s original 

motion did not include any argument regarding suppression pursuant to Miranda, 384 U.S. 436. It 

did allege that defendant’s statements were involuntary and included a discussion of the test for 

voluntariness set out in Hutto v. Ross, 429 U.S. 28 (1976) (per curiam). 

¶ 5 Defendant pointed out the factors used to determine whether a confession was voluntary, 

including whether the confession was extracted by any sort of threats or violence or obtained by 

any direct or implied promises, however slight, or by the exertion of any improper influence. Id.

at 30. Defendant argued that the interrogation was lengthy, having occurred over four days, and 

deprived defendant of the ability to see his family, a friend, or an attorney. Defendant argued that 

law enforcement extracted his confession through coercion, by threatening defendant that his 

younger brother would be arrested, or even shot and killed. 

¶ 6 A hearing on the motion was held on July 27 and 28, 2016. On August 11, 2016, the State 

filed a memorandum and supplemental argument regarding defendant’s motion to suppress. In its 

memorandum, the State conceded that defendant invoked his right to remain silent in the third 

interview and that it was not honored. Therefore, the State conceded that it would be appropriate 

for the trial court to suppress any questions or answers that came after defendant’s assertion of his 

rights, which would be the last 20 minutes of the interview. The State argued that the confession 

given by defendant in the fourth interview should not be suppressed and was not fruit of the 

poisonous tree. 

¶ 7 On August 22, 2016, defendant filed a memorandum in support of his motion to suppress, 

arguing that defendant’s confession given at the end of his third interview was involuntary and a 

result of coercive tactics by the police. Defendant then argued that the confession obtained during 

the fourth interview should be suppressed pursuant to the exclusionary rule announced in Miranda.
4 

Miranda, 384 U.S. at 473-74. The motion to suppress statements was partially granted by written 

order of the trial court on March 14, 2017. 

¶ 8 Defendant’s motion was denied as to the first interview, during which defendant had made 

no inculpatory statements. The trial court held that, during defendant’s second interview, defendant 

clearly and unequivocally asserted his right to remain silent and that, despite this assertion, the 

interview continued. Defendant had not made any inculpatory statements during the second 

interview. In defendant’s third interview, the trial court found that defendant again told officers 

that he did not want to talk anymore and that request was ignored. In addition, defendant requested 

to speak with the juvenile officer and that request was ignored. After a lengthy exchange with the 

officers, defendant eventually confessed that he had shot Hubbard. Later during the interview, 

when asked how many times he had fired, defendant stated that he was lying about shooting 

Hubbard and that he only said that because he did not want his little brother to get into trouble. 

¶ 9 The trial court found that the third interview was inadmissible based on defendant’s 

invocation of his right to remain silent during his second interview. The trial court ruled that 

defendant’s right to remain silent was not scrupulously honored in the second interview, which 

continued after he invoked his right to remain silent. The third interview was an interrogation for 

the same crime, further weighing in favor of suppression. The trial court noted that defendant again 

invoked his right to remain silent in the third interview and was again ignored. In addition to 

finding a Miranda violation, the trial court also found the following relevant to the voluntariness 

of defendant’s confession: 

“the detectives created a coercive environment which ultimately overcame the will 

of the defendant. This is demonstrated in the lengthy portion of the transcript set 

forth above. The detectives did this by threatening the arrest of the defendant’s 
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younger brother unless the defendant told them what happened. On crossexamination, Detective O’Neill admitted that the arrest of the defendant’s brother 

was a ‘threat intended to elicit an emotional response.’ A distinct scenario was 

explained to the defendant. This was done both verbally and by the detective’s 

actions in directing other officers to immediately leave the police station and arrest 

the brother. The detectives explained to the defendant that his fifteen year old 

brother would be arrested at gunpoint. During that arrest, a shootout might occur. 

His brother would then be having a ‘long, long, long night’ and be placed in a cell 

with someone the detective ‘hoped wasn’t a really bad guy.’ ” 

The trial court suppressed all statements made during the third interview. 

¶ 10 The trial court then turned to the fourth interview, which was conducted at defendant’s 

request. During this interview, defendant again told officers that he was lying during the prior 

interview to keep the officers from arresting his younger brother as they had threatened. After 

another 35 minutes of the detectives speaking primarily between themselves, explaining why 

defendant should cooperate and explaining his involvement in the murder, defendant again made 

inculpatory statements. The trial court suppressed the fourth interview because defendant’s 

invocation of his right to remain silent in his third interview was not scrupulously honored. 

¶ 11 The State filed a notice of intent to introduce defendant’s suppressed statements at trial for 

purposes of impeachment if defendant chose to testify. The State noted that while a suppressed 

statement cannot be used in the State’s case-in-chief, if a defendant elects to testify, the State can 

impeach a defendant with his prior statements. Defendant did not object to the State’s notice of 

intent. The trial court began the first trial on September 11, 2017. 
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¶ 12 At the first trial, defendant testified, and during cross-examination, the State questioned 

defendant about the suppressed statements in an effort to impeach his credibility. The statements 

were admitted in defendant’s first trial for impeachment purposes only and not as substantive 

evidence of defendant’s guilt. This first trial resulted in a mistrial due to a hung jury, and the State 

elected to retry the defendant.

¶ 13 Prior to the beginning of defendant’s second trial the State filed a notice of intent to 

introduce a certified transcript of defendant’s testimony given under oath at his first trial. The State 

maintained that it was entitled to introduce defendant’s testimony from his first trial as a statement 

by a party opponent, noting that defendant’s statements were admissible under Rule 801(d)(2)(A) 

of the Illinois Rules of Evidence (Ill. R. Evid. 801(d)(2)(A) (eff. Oct. 15, 2015)). Defendant 

objected, arguing that he would be prejudiced by the admission of his prior testimony if he chose 

not to testify in the second trial. Defendant further argued that the admission of the prior testimony 

could limit his defense. The trial court ruled that defendant’s prior testimony was admissible as a 

statement against interest and allowed a copy of the transcript of defendant’s prior testimony to be 

read into evidence in the State’s case-in-chief and considered as substantive evidence. 

¶ 14 The transcript was edited by the State to redact sustained objections and the mention of an 

outburst that defendant had during the first trial.1 Defense counsel was given a copy of the 

transcript, including the redactions, that the State was seeking to introduce in its case-in-chief and 

was given an opportunity to review it and suggest any further redactions that defendant believed 

1

The transcript was read into evidence in the State’s case-in-chief and included a reference by the 

prosecution to an outburst by defendant in the first trial. As the first trial transcript is not a part of the record, 

it is unclear whether this is the same outburst which the State agreed to redact based on its belief that it was 

prejudicial to the defendant. The defendant has not raised any issues concerning the redaction of the trial 

transcript within this appeal. 
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were required. Defendant did not request any further redaction, and it does not appear from the 

record before this court that the matter was revisited prior to the transcript’s introduction at trial. 

¶ 15 During the second trial, the State called several witnesses to testify about events before and 

after the shooting, including defendant’s younger brother, defendant’s friend, and various police 

and forensic witnesses. As noted above, the factual dispute at the heart of the trial was the identity 

of the shooter. 

¶ 16 The court reporter read the transcript of defendant’s first trial testimony to the jury. In his 

prior testimony, defendant offered his version of the events that occurred on August 7 and 8, 2015. 

During direct examination in the first trial, defendant testified that on the day of the shooting, he 

wanted to go with his friends to the Six Flags amusement park, but he was not allowed to go. He 

met up with his friends later that evening before deciding to head home to eat and go to bed. He 

went home, took Advil medicine, and went to sleep. He testified that he did not become aware of 

Hubbard’s death until the next day, when his friends told him that there were police in the area 

because Hubbard had been shot. 

¶ 17 The transcript that was read to the jury included questions asked by the State at the first 

trial during its cross-examination of defendant. The State asked defendant about the interviews 

that were conducted by the Alton Police Department related to the shooting. Defendant’s responses 

included both his denials and affirmations that he had told officers on two occasions that he shot 

Hubbard, and an admission that defendant told officers that he threw the gun into the woods. 

Although he admitted to making those statements to the officers, during his testimony, defendant 

asserted that those were false confessions. The transcript included defendant’s explanation during 

the first trial that he only admitted to the shooting because he was scared for his younger brother 

based on threats made by officers. Defendant did not testify during the second trial. The transcript 
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was introduced in the State’s case-in-chief and was admitted as substantive evidence of 

defendant’s guilt. The jury found defendant guilty, and the trial court sentenced defendant to 43 

years in prison. 

¶ 18 Defendant filed a posttrial motion requesting a new trial and alleged: (1) that defendant 

was unduly prejudiced when the State introduced evidence of the previously suppressed confession 

to the jury and (2) that defendant was prejudiced by the presence of a member of the jury (juror 

19) who failed to disclose her bias against African-American males and her multiple convictions. 

In his memorandum in support of the motion, defendant argued that the trial court erred in 

permitting the use of the transcript of his testimony during his first trial as substantive evidence of 

guilt because it contained statements that had been suppressed pursuant to a violation of Miranda. 

Defendant also noted in his memorandum that “[t]he purpose of the suppression of these 

statements was because they were secured under circumstances which were highly coercive and 

thus unreliable.” Defendant argued that his suppressed statements introduced during his first trial 

could be used for impeachment purposes only in the second trial. Defendant further argued that 

juror 19 failed to disclose a “bias against African-American males [as well as] multiple 

conviction[s].” Based on the resolution of defendant’s first issue, we do not reach the arguments 

relating to juror 19. The trial court denied defendant’s posttrial motion, and defendant now appeals 

his conviction and sentence. 

¶ 19 II. ANALYSIS

¶ 20 Defendant argues that the trial court abused its discretion when it granted the State’s notice 

of intent to introduce a certified transcript of defendant’s testimony given under oath at his first 

trial. Defendant claims that it was error to allow the State to introduce at trial, as substantive 

evidence offered during its case-in-chief, the transcript of defendant’s testimony from his first trial. 
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Defendant argues that the introduction of the transcript was an abuse of discretion because it 

included several references to statements that were previously suppressed based on a violation of 

defendant’s rights under the fifth and sixth amendments2 to the United States Constitution (U.S. 

Const., amends. V, VI). Defendant claims that the previously suppressed evidence was only 

admissible for purposes of impeachment. Defendant further argues that the State’s use of his trial 

testimony in its case-in-chief violated defendant’s right against self-incrimination by forcing his 

testimony before the jury when he elected not to testify in his second trial. Finally, defendant 

argues that his testimony at his first trial did not waive his constitutional protections under the fifth 

and fourteenth amendments to the United States Constitution (U.S. Const., amends. V, XIV) to 

justify the State’s use of his suppressed statements in his first or second trial. This court reviews

the decisions of a trial court concerning the admission of evidence under the abuse of discretion 

standard of review. People v. Bryant, 391 Ill. App. 3d 228, 244 (2009). 

¶ 21 The State used defendant’s testimony given during his first trial, which was inclusive of 

several suppressed inculpatory statements, as substantive evidence during its case-in-chief during 

defendant’s second trial. The State presented the transcript of defendant’s prior testimony by 

2

Defendant’s brief mentions the sixth amendment on three occasions, each in a heading, alleging 

that the defendant’s statements were suppressed upon a finding of a violation of the defendant’s sixth 

amendment rights. Defendant does not argue in his brief how the admission of his statements violated his 

sixth amendment rights, nor was that argued before the trial court. Additionally, the trial court’s order does 

not cite the sixth amendment as a basis for suppression. It is of note that, during a pretrial hearing on the 

State’s motion to prohibit defense counsel from referencing defendant’s request for an attorney, the trial 

court held, on March 15, 2018, as follows: 

“So the Court ruled on the defendant’s motion to suppress. The Court’s watched these videotaped 

statements. And having viewed them, I think referring to it as a request for counsel is misleading. 

That certainly implies an attorney professional. And my recollection is that that is not what he asked 

for. He never asked for an attorney. He never asked for counsel.” 

In the present appeal, because defendant has never argued any facts showing a violation of defendant’s 

sixth amendment rights, including before this court, and this court has no basis to believe the trial court 

ruled that the original statements were taken in violation of defendant’s sixth amendment rights, we do not 

analyze this case in the context of the sixth amendment. 
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reading the transcript into evidence. Defendant objected to such use before trial and preserved that 

objection in a timely posttrial motion. Defendant argues on appeal that such use was an abuse of 

discretion in that it violated defendant’s rights to due process pursuant to the fifth and fourteenth 

amendments. 

¶ 22 A. Basis for Initial Suppression 

¶ 23 In order to determine whether defendant’s prior testimony was properly introduced in his 

second trial, it is necessary to consider the reasons why defendant’s statements were suppressed, 

why they were allowed to be used during his first trial, and for what purpose. Defendant made 

confessions to shooting Hubbard during both his third and fourth interviews with police.

Defendant, in his brief to this court, argues that his statements made to the investigating officers 

were suppressed because they were obtained in violation of the fifth amendment. The State does 

not reference why defendant’s statements were originally suppressed but acknowledges that they 

were. 

¶ 24 The trial court entered a lengthy written order on March 14, 2017. According to the trial 

court’s written order, defendant’s statements made during his third and fourth interviews were 

suppressed based on a violation of Miranda, because the trial court found that defendant had 

invoked his right to remain silent and that request was not scrupulously honored. Additionally, the 

trial court found that defendant’s statements taken during his third interview were coerced by 

threats from the officers which overbore the will of the defendant. Therefore, those statements 

were found to be involuntary.

¶ 25 It is clear that a defendant who takes the stand may ordinarily be impeached by proof of 

prior inconsistent statements. People v. Ladas, 12 Ill. 2d 290, 294 (1957). Such evidence is not 

admitted as proof of the truth of the facts stated out of court but to cast doubt on the testimony of 
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the witness by showing his inconsistency, and an instruction to that effect should be given upon 

request. People v. Kelly, 22 Ill. App. 3d 908, 915 (1974). 

¶ 26 Defendant argues on appeal that his statements were improperly introduced during his first 

trial because his direct testimony did not justify the introduction, through cross-examination, of 

his suppressed statements. Defendant further argues that, where the introduction in the first trial 

for purposes of cross-examination was improper, any references to the suppressed statements in 

the State’s case-in-chief were unconstitutional pursuant to the defendant’s right to due process and 

pursuant to the fifth and fourteenth amendments. 

¶ 27 The defendant cites Justice Brennan’s dissent in United States v. Havens, 446 U.S. 620 

(1980), for the proposition that “impeachment by cross-examination about—or introduction of—

suppressible evidence must be warranted by defendant’s statements upon direct questioning.” Id.

at 630 (Brennan, J., dissenting). However, the majority in that case held that a defendant’s 

statements made in response to proper cross-examination reasonably suggested by the defendant’s 

direct examination are subject to otherwise proper impeachment by the prosecution, albeit by 

evidence that has been illegally obtained and is inadmissible as substantive evidence of guilt. Id.

at 627-28 (majority opinion). 

¶ 28 In Havens, the defendant testified and denied that he had ever engaged in the activity of 

taping or draping cocaine around his body. Id. at 622. On cross-examination, the government asked 

whether the respondent had anything to do with sewing makeshift pockets on codefendant’s Tshirt and whether he had a T-shirt with pieces missing in his luggage, and he denied both questions. 

Id. The government was allowed to introduce a previously suppressed T-shirt found in the 

respondent’s luggage that was missing pieces that matched pieces sewn into the codefendant’s Tshirt during rebuttal for purposes of impeaching respondent’s credibility. Id. The Havens case does 
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give some guidance in the proper use of suppressed evidence for purposes of cross-examination or 

rebuttal evidence. However, in the present case, defendant was impeached during crossexamination with statements suppressed pursuant to a violation of the prophylactic rules of 

Miranda, as well as involuntary statements based on testimony given by the defendant during his 

direct examination. The defendant’s statements given on direct examination were contradicted by 

his suppressed statements to officers. As such, Havens, does not support defendant’s contention 

that he did not, in his first trial, invite cross-examination with his suppressed statements. 

¶ 29 1. Statements Suppressed Based on a Violation of Miranda

¶ 30 The exclusionary rule is a judicially created rule that aims to prevent evidence obtained in 

violation of certain constitutional rights from being used against the defendant in a criminal 

proceeding. People v. Maron, 2019 IL App (2d) 170268, ¶ 54. The purpose of the exclusionary 

rule is to deter unlawful police conduct in the future. Id. The exclusionary rule is not a personal 

constitutional right of the aggrieved party and is not concerned with situations where the 

introduction of the unlawfully obtained evidence would itself exacerbate or constitute a violation. 

Id. 

¶ 31 The United States Supreme Court has explained that whether otherwise excluded evidence 

can be admitted for purposes of impeachment depends upon the nature of the constitutional 

guarantee that is violated. Kansas v. Ventris, 556 U.S. 586, 590 (2009). For instance, the fifth 

amendment is typically violated when a coerced confession is introduced at trial, whether 

substantively or for impeachment purposes. Id. The introduction of the evidence is itself a 

violation, and the evidence should be barred. Id. In contrast, the fourth amendment is violated 

when the person is subjected to an unreasonable search or seizure, not when the fruits of that search 

or seizure are introduced at trial. Id. at 591. Therefore, inadmissibility based on a fourth 
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amendment violation is not automatic; rather, admissibility is determined according to the 

exclusionary-rule balancing test. Id. The same can be true for a fifth or sixth amendment violation, 

if the violation was due to improper police conduct and not due to the very fact of the introduction 

of the evidence at trial. Id. In those instances, prophylactic considerations apply, and the court 

should conduct the exclusionary-rule balancing test to determine admissibility. Id. 

¶ 32 Regarding the defendant’s statements taken in violation of Miranda, the United States

Supreme Court recognized an exception to the exclusionary rule in Walder v. United States, 347 

U.S. 62 (1954), permitting the prosecutor to introduce evidence obtained through an illegal search, 

a fourth amendment violation, to undermine the credibility of defendant’s claim that he had never 

possessed narcotics. The Court explained that a defendant is free to deny all of the elements of the 

case against him without thereby giving leave to the government to introduce by way of rebuttal 

evidence illegally secured by it and therefore not available for its case-in-chief. However, there is 

hardly justification for allowing the defendant to affirmatively resort to perjurious testimony in 

reliance on the government’s disability to challenge his credibility. Id. at 65. 

¶ 33 The Supreme Court has insisted that “evidence that has been illegally obtained . . . is 

inadmissible on the government’s direct case, or otherwise, as substantive evidence of guilt.” 

(Internal quotation marks omitted.) James v. Illinois, 493 U.S. 307, 313 (1990). However, the 

Court believed that permitting the use of such evidence to impeach a defendant’s testimony would 

further the goal of truth-seeking by preventing defendants from perverting the exclusionary rule 

into a license to use perjury by way of a defense. Id. The Court further believed that such use 

would create only a speculative possibility that impermissible police conduct would be encouraged 

and thereby concluded that the balance of values underlying the exclusionary rule justified an 

exception covering impeachment of a defendant’s testimony. Id. 
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¶ 34 The Miranda exclusionary rule may be triggered even in the absence of a fifth amendment 

violation. Oregon v. Elstad, 470 U.S. 298, 306 (1985). A Miranda violation does not constitute 

compulsion but simply affords a bright-line, legal presumption of compulsion whenever a 

suspect’s statements are not preceded by Miranda warnings. Id. at 307. The presumption of 

compulsion renders unwarned statements inadmissible in the prosecution’s case-in-chief, even if 

those statements might be considered “voluntary” within the meaning of the fifth amendment. Id.

Despite the fact that voluntary statements taken in violation of Miranda must be excluded from 

the prosecution’s case, the presumption of coercion does not bar their use for impeachment 

purposes on cross-examination. Harris v. New York, 401 U.S. 222, 224 (1971). 

¶ 35 The facts in the present case are similar to those in Harris, 401 U.S. 222, and Oregon v. 

Hass, 420 U.S. 714 (1975), where the Court upheld the use of statements taken in violation of 

Miranda therefore unusable by the prosecution as part of its own case but admissible to impeach 

statements made by defendant in the course of his direct testimony. The Harris Court also made 

clear that impeachment by otherwise inadmissible evidence is not limited to collateral matters. 

Harris, 401 U.S. at 225. In Harris, the defendant’s testimony concerning the events occurring on 

the night of the crime contrasted sharply with what he told the police shortly after his arrest. The 

Court held that the defendant’s statements, suppressed pursuant to the prophylactic rules of 

Miranda, could be used to impeach the defendant’s testimony. Id. Similarly, in Oregon v. Hass, 

the defendant requested an attorney and, without being provided one, showed an officer where 

stolen property was located. Hass, 420 U.S. at 715-16. The statements made after the defendant 

requested an attorney were suppressed pursuant to Miranda. Id. at 716. The Hass Court ruled that 

“[a]s in Harris, it does not follow from Miranda that evidence inadmissible against Hass in the 
15 

prosecution’s case in chief is barred for all purposes, always provided that ‘the trustworthiness of 

the evidence satisfies legal standards.’ ” Id. at 722 (quoting Harris, 401 U.S. at 224). 

¶ 36 In the present matter, defendant testified and gave his version of events occurring on the 

night of the murder. That version conflicted with the suppressed statements that he had previously 

made to police, wherein he admitted that he shot Hubbard, described the path that he ran after 

shooting Hubbard, and described where he hid the gun. During cross-examination, defendant was 

confronted with his prior statements and admitted to their making. Therefore, as to statements 

made by defendant that were suppressed pursuant to Miranda, those statements made during his 

fourth interview, there was no error in the trial court allowing the statements to be used in the 

defendant’s first trial for purposes of impeachment. 

¶ 37 2. Involuntary Statements 

¶ 38 The trial court in this matter found that both of defendant’s confessions were obtained in 

violation of the prophylactic rules developed in Miranda. The admissibility of those statements in 

cross-examination required the trial court to engage in the exclusionary-rule balancing test. 

However, the trial court also found that the police tactics used in defendant’s interrogation during 

his third interview rendered the statements involuntary, where they overbore the defendant’s will. 

The trial court held as follows:

“The Court also finds that the detectives created a coercive environment which 

ultimately overcame the will of the defendant. This is demonstrated in the lengthy 

portion of the transcript set forth above. The detectives did this by threatening the 

arrest of the defendant’s younger brother unless the defendant told them what 

happened. On cross-examination, Detective O’Neill admitted that the arrest of the 

defendant’s brother was a ‘threat intended to elicit an emotional response.’ A 
16 

distinct scenario was explained to the defendant. This was done both verbally and 

by the detective’s actions in directing other officers to immediately leave the police 

station and arrest the brother. The detectives explained to the defendant that his 

fifteen year old brother would be arrested at gunpoint. During that arrest, a shootout 

might occur. His brother would then be having a ‘long, long, long night’ and be 

placed in a cell with someone the detective ‘hoped wasn’t a really bad guy.’ ” 

¶ 39 Generally, the question in voluntariness cases is “whether the defendant’s will was 

overborne at the time he confessed.” Lynumn v. Illinois, 372 U.S. 528, 534 (1963). It is difficult to 

interpret the trial court’s ruling as anything other than a finding that defendant’s confession given 

during his third interview was involuntary. 

¶ 40 The due process clause of the fourteenth amendment guarantees that no state shall “deprive 

any person of life, liberty, or property, without due process of law.” U.S. Const., amend. XIV, § 1. 

The United States Supreme Court “has long held that certain interrogation techniques, either in 

isolation or as applied to the unique characteristics of a particular suspect, are so offensive to a 

civilized system of justice that they must be condemned under the Due Process Clause.” Miller v. 

Fenton, 474 U.S. 104, 109 (1985). Courts frame the legal inquiry usually through asking whether 

the defendant’s confession was voluntary. Id.; People v. Davis, 35 Ill. 2d 202, 205 (1966) (“The 

constitutional test for the admission of a confession in evidence is whether the confession was 

made freely, voluntarily and without compulsion or inducement of any sort.”). Also, the fifth 

amendment commands in pertinent part that no person shall be compelled in any criminal case to 

be a witness against himself or herself. U.S. Const., amend. V. The fifth amendment’s selfincrimination clause applies to the states through the due process clause of the fourteenth

amendment. Malloy v. Hogan, 378 U.S. 1, 6 (1964). 
17 

¶ 41 A fundamental principle of criminal procedure is that a confession must be voluntary; 

otherwise, it is inadmissible. People v. Melock, 149 Ill. 2d 423, 447 (1992). The Illinois Supreme 

Court has held that the voluntary character of an out-of-court statement must be established before 

it may be used even for impeachment purposes. See People v. Adams, 1 Ill. 2d 446, 451 (1953); 

People v. Hiller, 2 Ill. 2d 323, 327 (1954); People v. Tate, 30 Ill. 2d 400, 405 (1964). Compelled 

incriminating statements are inadmissible for impeachment purposes. Mincey v. Arizona, 437 U.S. 

385, 398 (1978). A criminal defendant is denied due process of law if his conviction is based, 

wholly or partially, on the admission of testimony concerning that defendant’s involuntary 

confession. Id. “Compelled or involuntary statements are excluded under the fifth amendment, not 

as a means of deterring unlawful police conduct, but because such statements are regarded as 

inherently untrustworthy and, thus, not probative.” People v. Winsett, 153 Ill. 2d 335, 352 (1992). 

¶ 42 Based on the above, it is clear that the State should have been precluded from using the 

defendant’s inculpatory statements obtained during his third interview, ruled by the trial court to 

be involuntary, for purposes of impeachment during the defendant’s first trial. Nonetheless, they 

were allowed to be used during cross-examination without objection when defendant testified. 

Such use was a violation of defendant’s rights under the fifth amendment and to due process of 

law. 

¶ 43 B. Admissibility of Suppressed Statements at Second Trial

¶ 44 The next question is whether the testimony given during defendant’s cross-examination at 

his first trial was admissible in a future hearing or trial as substantive evidence. The general rule 

regarding a defendant’s earlier trial testimony is that it is admissible against him at a later trial. 

Harrison v. United States, 392 U.S. 219, 222 (1968). A defendant who chooses to testify waives 

his privilege against compulsory self-incrimination with respect to the testimony he gives. Id. In 
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permitting testimony from the first trial to be used in the second trial, it is assumed that a defendant 

voluntarily availed himself of his right to testify during the earlier proceeding. See People v. 

Moore, 19 Ill. App. 3d 334, 342 (1974). 

¶ 45 The State argues that the transcript of defendant’s prior testimony was properly admitted 

as substantive evidence during defendant’s second trial under Rule 801(d)(2)(A) of the Illinois 

Rules of Evidence. Ill. R. Evid. 801(d)(2)(A) (eff. Oct. 15, 2015). The party-admission doctrine is 

an exception to the hearsay rule. People v. Ramsey, 205 Ill. 2d 287, 294 (2002). A statement by a 

party-opponent is not hearsay if it “is offered against a party and is *** the party’s own statement.” 

Ill. R. Evid. 801(d)(2)(A) (eff. Oct. 15, 2015); see also People v. Aguilar, 265 Ill. App. 3d 105, 

113 (1994). Such evidence is admissible if it is relevant to an issue in dispute and its probative 

value is not substantially outweighed by its prejudicial effect. Aguilar, 265 Ill. App. 3d at 113. 

¶ 46 The State cites United States v. Reed, 227 F.3d 763 (7th Cir. 2000), for the proposition 

that defendant’s prior testimony, inclusive of cross-examination, was admissible regardless of 

whether it was inculpatory or exculpatory and that the prior testimony was admissible under Rule 

801(d)(2)(A) of the Federal Rules of Evidence3 (Fed. R. Evid. 801(d)(2)(A)), which isidentical to

Rule 801(d)(2)(A) of the Illinois Rules of Evidence. The Illinois rule provides as follows: “A 

statement is not hearsay if *** [t]he statement is offered against a party and is *** the party’s own 

statement, in either an individual or a representative capacity ***.” Ill. R. Evid. 801(d)(2)(A) (eff. 

Oct. 15, 2015). The State correctly points out that Reed is not binding on this court but is persuasive 

3

The Federal Rule of Evidence 801(d)(2)(A) excludes admissions by a party-opponent (which are 

offered against the party) from the definition of hearsay because the adversarial process allows the partydeclarant to rebut his or her own admissions by testifying at trial. See Fed. R. Evid. 801(d)(2) & Advisory 

Committee Note (“Admissions by a party-opponent are excluded from the category of hearsay on the theory 

that their admissibility in evidence is the result of the adversary system rather than satisfaction of the 

conditions of the hearsay rule.”); United States v. McDaniel, 398 F.3d 540, 545 (6th Cir. 2005). 
19 

authority, especially where the Illinois rule is modeled after the federal rule. People v. Craigen, 

2013 IL App (2d) 111300, ¶ 44. 

¶ 47 However, the Reed case is factually distinguishable, as the court in that case was not 

deciding whether the defendant’s testimony about evidence that was subject to a suppression order 

based on Miranda, the fifth amendment, or due process was properly admitted during a subsequent 

trial as substantive evidence. In the present case, the issue of the admissibility of defendant’s 

suppressed statements does not hinge on whether they are hearsay, but whether the statements 

continued to be subject to the trial court’s suppression order. An out-of-court statement that is not 

hearsay may, nonetheless, be inadmissible due to other rules of evidence. The fact that a statement 

is not hearsay does not mean that it is not inadmissible for other reasons, such as the exclusionary 

rule. Reed, therefore, offers us little guidance in the present case.

¶ 48 In general, under the law of the case doctrine, a rule established as controlling in a particular 

case will continue to be the law of the case, provided the facts remain the same. People v. 

Patterson, 154 Ill. 2d 414, 468 (1992). In People v. Henderson, 36 Ill. App. 3d 355 (1976), the 

court noted that once a motion to suppress has been ruled upon by one judge, that motion cannot 

be relitigated later before another judge, absent a showing of exceptional circumstances or of 

additional evidence that has become available since the first hearing to suppress. Id. at 370. The 

State’s position is that the cross-examination of defendant during his first trial with his suppressed 

statements was proper to impeach statements made by defendant during his direct examination. 

The lawful questioning resulted in new, legally obtained statements, made under oath, by a party 

opponent that the State could then use substantively in its case-in-chief during the retrial of 

defendant. 
20 

¶ 49 Defendant’s testimony acknowledged that he made the suppressed confessions. We have 

answered the question above regarding the admissibility of involuntary confessions for purposes 

of cross-examination and found that defendant’s statements obtained during his third interview 

should not have been used by the State as impeachment evidence. There was no objection to the 

impeachment evidence and defendant’s first trial resulted in a mistrial. However, the improper use 

of defendant’s confessions for purposes of impeachment did not create new, lawfully obtained 

confessions that the State could then use as substantive evidence. In fact, the admission in 

defendant’s first trial of his coerced confession was itself a violation of his fifth amendment rights, 

as well as his right to due process. The fifth amendment is typically violated when a coerced 

confession is introduced at trial, whether substantively or for purposes of impeachment. Ventris, 

556 U.S. at 590. The fact that the statements were improperly admitted during cross-examination 

of defendant for purposes of impeachment did not mitigate the damage to defendant where the jury 

heard a nonprobative, coerced confession and defendant’s admission to its making. The admission 

of defendant’s coerced statements, even where admitted during cross-examination by the State, 

was an abuse of discretion. As such, their admission during the State’s case-in-chief was a fifth 

amendment violation and an abuse of discretion. 

¶ 50 Regarding defendant’s statements suppressed pursuant to Miranda, the use of those 

statements for purposes of impeachment during the first trial would have been subject to the 

exclusionary-rule balancing test. The test for applying the exclusionary rule requires weighing the 

likelihood of deterring future police misconduct against the costs of withholding reliable 

information from the truth-seeking process. Maron, 2019 IL App (2d) 170268, ¶ 55. The 

application of the balancing test typically bars unlawfully obtained evidence from being used 

substantively at trial. Id. ¶ 56. The fact that the exclusionary rule should bar such evidence at trial 
21 

is so often taken for granted that we rarely see the balancing test performed in that context. Id.

Instead, the balancing test is most often used to determine whether the exclusionary rule should be 

extended beyond its typical use to also bar unlawfully obtained evidence for nonsubstantive, 

impeachment purposes at trial. Id. 

¶ 51 The State is correct in asserting that Rule 801(d)(2)(A) of the Illinois Rules of Evidence 

generally justifies the use of defendant’s prior testimony in the State’s case-in-chief. Such 

statements made by a defendant under oath while testifying at his first trial are not hearsay pursuant 

to the evidentiary rules. Rule 801(d)(2)(A) embodies the traditional rule that any statement of an 

accused may be used against him as an admission except as may be excluded by the doctrine of 

confessions or the privilege against self-incrimination. People v. Garcia, 95 Ill. App. 3d 792, 800 

(1981). 

¶ 52 It does not follow that the portion of defendant’s testimony in which he acknowledges the 

making of statements that were the subject of the trial court’s suppression order, presented in the 

first trial for purposes of impeachment and thus to be considered by the trier of fact only for 

purposes of determining the credibility of defendant, was transmuted into substantive evidence by 

the hearsay rules. Rule 801(d)(2)(A) does not trump the exclusionary rule since Rule 801(d)(2)(A) 

does not address the exclusionary rule in any aspect. The exclusionary rule and hearsay rule are 

two entirely different concepts, and there are different policy goals and evidentiary rules that

govern the basis for their exclusion from a trial. To be admissible against defendant, nonhearsay 

evidence still must be relevant and not inadmissible for other reasons beyond hearsay, such as the 

exclusionary rule. 

¶ 53 In the 49-year history of Miranda, we are unable to find a reported case that has allowed 

suppressed statements to be used as substantive evidence as the trial court has done in the present 
22 

case. The State has cited no authority expanding the use of suppressed statements in this manner, 

and the court’s research has, likewise, not revealed authority from any jurisdiction sanctioning the 

use of statements suppressed pursuant to the exclusionary rule as substantive evidence. Had 

defendant made new statements while testifying, such as admissions to committing the crime, 

those statements would of course be admissible in a future trial. However, where the statements 

made during defendant’s testimony were simply an acknowledgment of the making of the 

suppressed statements, the testimonial acknowledgments remain subject to the suppression order. 

Those statements would remain admissible only for purposes of impeachment, should the 

defendant have chosen to testify inconsistently during his second trial. The First District held in 

Garcia that the admission of defendant’s written statement, which included admissions made by 

defendant encompassing references to previously suppressed evidence, was error, even though 

they were admissions of defendant. Garcia, 95 Ill. App. 3d at 800-01. Rule 801(d)(2)(A) does not 

circumvent the exclusionary rule or the fifth and fourteenth amendments to the United States 

Constitution. 

¶ 54 The balancing approach in Walder and its progeny does not justify expanding the scope of 

the impeachment exception to permit prosecutors to use an illegally obtained confession to 

impeach the credibility of a defendant and then, if a mistrial occurs, to use the defendant’s 

admission to the making of the suppressed statements substantively in a subsequent trial on the 

same issue. If such a rule were approved, there would be no justification to limit the use of the 

evidence to impeachment in the first trial, and the reasoning in Harris would be given little effect. 

The evidence the State introduced at defendant’s second trial is the exact same evidence that the 

jury heard in the first trial, except that it was read from a transcript instead of presented by live 

witnesses. 
23 

¶ 55 The State cites section 115-10.1(c)(2)(B) of the Code of Criminal Procedure of 1963 (725 

ILCS 5/115-10.1(c)(2)(B) (West 2018)) as additional authority for using the defendant’s 

suppressed confession as substantive evidence. The State argues that the defendant’s statements 

could have been used substantively during his first trial based on section 115-10.1(c)(2)(B), which 

excepts from the definition of hearsay a statement that narrates, describes, or explains an event or 

condition of which the witness had personal knowledge if the witness acknowledged under oath 

the making of the statement at a trial, hearing, or other proceeding. Id. The defendant’s confession 

was not admitted substantively during the first trial, nor could it have been. Procedural rules that 

define hearsay and establish exceptions to the hearsay rule do not control the admissibility of 

evidence that must be excluded for reasons other than hearsay. In the present case, defendant’s 

confession was barred from use in the State’s case-in-chief by the exclusionary rule, not the 

hearsay rule. 

¶ 56 At the first trial, the defendant’s confession, if it were not suppressed, would have also 

been excepted from the definition of hearsay under Rule 801(d)(2)(A) of the Illinois Rules of 

Evidence. Ill. R. Evid. 801(d)(2)(A) (eff. Oct. 15, 2015). However, the statements were not 

introduced as substantive evidence despite the hearsay rules because they were suppressed under 

the exclusionary rule and the fifth and fourteenth amendments to the United States Constitution. 

¶ 57 Rule 801(d)(2)(A) of the Illinois Rules of Evidence is an evidentiary rule excluding prior 

statements of the defendant from the definition of hearsay. Id. The exception penalizes defendants 

for committing perjury by allowing the prosecution to expose their perjury through impeachment 

using illegally obtained evidence. Thus, defendants are discouraged in the first instance from 

“affirmatively resort[ing] to perjurious testimony.” Walder, 347 U.S. at 65. But the exception 

leaves defendants free to testify truthfully or exercise their rights under the fifth amendment to 
24 

choose not to testify; they can offer probative and exculpatory evidence to the jury without opening 

the door to impeachment by carefully avoiding any statements that directly contradict the 

suppressed evidence. The exception thus generally discourages perjured testimony without 

discouraging truthful testimony. 

¶ 58 Where defendant did not testify in his second trial, there was no justification for the use of 

his suppressed statements as impeachment evidence. There was no possibility that he could pervert 

the exclusionary rule into a license to use perjury by way of a defense. In the second trial, defendant 

did not in any way present evidence through his own testimony that would have directly 

contradicted his suppressed statements because defendant gave no testimony at all. As such, the 

State was stripped of the necessity to utilize the narrow exception to the exclusionary rule carved 

out in Harris. 

¶ 59 There was no appeal between the mistrial and the second trial. The ruling rendered during 

the first trial that defendant’s statements during the police interrogation were not admissible except 

for impeachment purposes remained in effect at the second trial. The constitutional reasons for 

excluding the evidence did not change from defendant’s first trial to his second trial. This court 

does not find the State’s argument compelling that defendant’s testimony during crossexamination rendered the suppressed statements no longer subject to the exclusionary rule. 

Defendant’s trial testimony, where it referenced voluntary statements that remained subject to the 

exclusionary rule, was admissible for purposes of impeachment where defendant testified in direct 

contradiction to his suppressed statements. Defendant’s involuntary statements remained 

inadmissible for impeachment purposes or substantively. Rule 801(d)(2)(A) does not operate to 

make illegally acquired, nonprobative, and suppressed evidence admissible as substantive 

evidence. 
25 

¶ 60 In reaching our conclusion that the suppressed evidence was improperly used as 

substantive evidence in the second trial, we are persuaded by the analysis set out in People v. 

Barton, 286 Ill. App. 3d 954 (1997). In Barton, a witness, McGuire, testified at defendant’s first 

trial and was impeached with her prior inconsistent statement, a statement given to police in which 

the witness stated that defendant admitted to her that he had been involved in the murder. Id. at 

960. McGuire testified at the first trial that defendant was with her the entire evening that the crime 

was committed and that he made no mention to her about a shooting on that date. Id. The State 

then confronted McGuire with a four-page statement that she had given to a police officer wherein 

she stated that defendant told her that a white female came to the front door of the trailer and fired 

a shot and defendant fired a shot in return. Id. at 961. 

¶ 61 Defendant argued that he was denied a fair trial due to the State’s use of McGuire’s prior 

inconsistent statement as substantive evidence at defendant’s second trial. Id. at 960. McGuire 

failed to appear at the second trial, and the trial court allowed her testimony from the first trial to 

be read into evidence. Id. On appeal, this court noted: “It is black-letter law that a witness’s prior 

inconsistent statement is admissible only to attack his credibility and cannot be admitted as proof 

of the substance of the statement.” Id. at 961 (citing People v. Gant, 58 Ill. 2d 178, 185 (1974)). 

¶ 62 A review of McGuire’s testimony made it obvious that the State’s introduction of 

McGuire’s testimony from the first trial served no other purpose than to highlight the admission 

of the defendant. This was clear because McGuire’s testimony at the first trial actually gave 

defendant an alibi. The only plausible explanation for the State’s introduction of McGuire’s 

testimony was to use McGuire’s prior inconsistent statement as substantive evidence against 

defendant. Even though the trial court instructed the jury that the prior inconsistent statement could 

only be used to assist in deciding the weight to be given the testimony at trial, the Barton court 
26 

held that did not cure the problem. Id. This court found that it was plain error for McGuire’s 

testimony from the first trial to be introduced by the State at the second trial as substantive 

evidence. Id. at 960.

¶ 63 Similarly, in the present case, defendant’s trial testimony largely consisted of defendant’s 

version of events on the night of the murder and his denial of any involvement. Defendant, while 

subject to cross-examination, was impeached with his suppressed confessions. Defendant’s 

testimony at the first trial, other than the impeachment evidence, did nothing to advance the State’s 

case as it largely consisted of his denial of any involvement in the crime. 

¶ 64 Based on the above analysis, defendant’s statements to police, which were suppressed, 

were not admissible in the second trial as substantive evidence in the State’s case-in-chief. After 

considering the evidence as a whole, we conclude that defendant’s conviction was based in part 

on the incompetent evidence presented during the reading of defendant’s testimony from the first 

trial in which his prior inconsistent statements, consisting of suppressed confessions, were 

improperly used as substantive evidence against him. Defendant’s prior inconsistent statements 

contained suppressed confessions that remained subject to the trial court’s ruling that the 

statements were inadmissible in the State’s case-in-chief. Further, defendant’s confessions 

obtained during his third interview were involuntary and thus should not have been used for any 

purpose. The State’s use of the illegally obtained statements, which bear directly on a defendant’s 

guilt or innocence, as substantive evidence of defendant’s guilt in the second trial defeated the 

important substantive policies and functions underlying Miranda and the established exclusionary 

rules and violated defendant’s fifth amendment privilege against self-incrimination.

 
27 

¶ 65 C. Harmless Error

¶ 66 That does not end our inquiry. This court has held that the improper admission of a 

defendant’s statements to the police is subject to a harmless-error analysis (People v. Mitchell, 152 

Ill. 2d 274, 328 (1992)), except in cases involving the use of physically coerced statements. People 

v. Wrice, 2012 IL 111860, ¶ 71. The admission of such a confession is a “trial error,” which occurs 

during a case’s presentation to the trier of fact and “may therefore be quantitatively assessed in the 

context of other evidence presented in order to determine whether its admission is harmless beyond 

a reasonable doubt.” Arizona v. Fulminante, 499 U.S. 279, 307-08 (1991). 

¶ 67 Under a harmless-error analysis, the critical question is whether it appears beyond a 

reasonable doubt that the error did not contribute to the verdict. People v. Patterson, 217 Ill. 2d 

407, 428 (2005). There are three different approaches to answering this critical question:

(1) analyzing the other evidence from the case to determine if that evidence overwhelmingly 

supported the defendant’s conviction, (2) focusing on whether the error contributed to the verdict, 

and (3) determining whether the improperly admitted evidence was merely cumulative to the other 

evidence properly admitted at trial. Id. In the present case, (1) the other evidence did not 

overwhelmingly establish that the defendant was the shooter, (2) evidence of the suppressed 

statements unquestionably contributed to the defendant’s conviction, and (3) the improperly 

admitted evidence was not cumulative of the other evidence. Therefore, we cannot conclude that 

the improper admission of the suppressed statements as substantive evidence in the second trial 

was harmless.

¶ 68 A confession is like no other evidence. In fact, a defendant’s own confession is probably 

the most probative and damaging evidence that can be admitted against him. Fulminante, 499 U.S. 

at 296. This is because the defendant’s admissions “ ‘come from the actor himself, the most 
28 

knowledgeable and unimpeachable source of information about his past conduct. Certainly, 

confessions have profound impact on the jury, so much so that we may justifiably doubt its ability 

to put them out of mind even if told to do so.’ ” Id. (quoting Bruton v. United States, 391 U.S. 123, 

139-40 (1968) (White, J., dissenting)). The State presented evidence of two interviews, both of 

which produced confessions from defendant. In the case of defendant’s coerced confession, “the 

risk that the confession is unreliable, coupled with the profound impact that the confession has 

upon the jury, requires a reviewing court to exercise extreme caution before determining that the 

admission of the confession at trial was harmless.” Id.

¶ 69 There was no physical evidence tying the defendant to the murder. The State did not present 

any evidence of a motive for the crime other than within the defendant’s suppressed statements. 

Aside from the State’s use of the evidence of defendant’s prior confessions, the evidence pointing 

to defendant included the fact that defendant lived in the same neighborhood as the location of the 

crime, a statement by defendant’s friend, Melvin Hamler, and defendant’s little brother, Ahmad 

Sanders.

¶ 70 Hamler testified that at the time of the shooting, he was walking by the area where the 

shooting occurred. His back was to Hubbard when he heard gunshots. He turned around for a half 

second and started running. Hamler was on the phone and saw defendant in a dark hoodie with the 

hood pulled up. During cross-examination, when asked if he recognized the person he saw as the 

defendant, he replied, “Yeah, I guess.” He was impeached with prior testimony when he said that 

he could tell who it was “a little bit.” When asked, “So you’re saying now when you see somebody 

with a hoodie on you can’t really tell who it is. Is that what you just said?” the witness responded, 

“All you can see is mouth to nose, you know what I’m sayin’? You can tell a person mouth to 

nose.” 
29 

¶ 71 Defendant’s younger brother, who was 15 at the time of his interview with police, testified 

that he implicated defendant as the shooter when interviewed by the police. At the trial, he denied 

making many statements to police implicating defendant in the murder. The statements that 

defendant’s younger brother denied making were reflected on a recording of his interview that was 

admitted into evidence by the State for purposes of impeachment. During his testimony, where he 

did eventually admit making statements implicating defendant, defendant’s younger brother 

denied the truth of the statements he gave to the officers during his interview. He did admit to 

saying that he saw defendant commit the murder but explained that he was lying because he was 

afraid of the police because they were threatening to lock him up and had told him that he would 

not be allowed to play sports. 

¶ 72 The murder weapon was never recovered. In addition, we note that the surveillance camera 

footage of the shooter does not provide a picture clear enough to identify defendant as the shooter. 

While there is certainly some evidence tying defendant to the crime, it cannot be said that the 

evidence overwhelmingly supported defendant’s conviction. The fact that defendant’s first trial 

resulted in a hung jury supports this conclusion. 

¶ 73 The erroneous admission of suppressed evidence in the second trial undoubtedly 

contributed to the verdict, and the error was not merely cumulative to the other evidence presented 

in the trial. Evidence that defendant admitted to confessing the crime is one of the most crucial 

pieces of evidence for the jury to consider in finding a defendant guilty of first degree murder. 

Defendant did not testify during his second trial. The State read the entire transcript of his 

testimony given during his first trial, including many suppressed inculpatory statements. Further, 

the trial court gave no limiting instruction on the purpose for which the jury could consider the 
30 

suppressed statements. One of the suppressed statements was: Question: “Did you tell detectives 

that you shot James Hubbard?” Answer: “I did tell detectives that I did that.” 

¶ 74 The improper admission of defendant’s statements to the police was not harmless, and his 

conviction cannot stand. The introduction of this highly prejudicial evidence was an abuse of 

discretion and a trial error, and as such, his conviction for first degree murder cannot stand. 

¶ 75 Although we have concluded that defendant’s conviction for first degree murder cannot 

stand, we must determine whether to reverse it outright or remand the matter for a new trial. Under 

the double jeopardy clause of the United States Constitution’s fifth amendment, no person may 

“be subject for the same offence to be twice put in jeopardy of life or limb.” U.S. Const., amend 

V. Similar provisions also exist in the Illinois Constitution (see Ill. Const. 1970, art. I, § 10) and 

in our statutes. See 720 ILCS 5/3-4(a) (West 2018). 

“The cornerstone of the double jeopardy clause is ‘that the State with all its 

resources and power should not be allowed to make repeated attempts to convict an 

individual for an alleged offense, thereby subjecting him to embarrassment, 

expense and ordeal and compelling him to live in a continuing state of anxiety and 

insecurity, as well as enhancing the possibility that even though innocent he may 

be found guilty.’ ” People v. Williams, 188 Ill. 2d 293, 307 (1999) (quoting Green 

v. United States, 355 U.S. 184, 187-88 (1957)).

¶ 76 Although the double jeopardy clause forbids the retrial of a defendant to afford the State 

another opportunity to present evidence it failed to present in the first trial, it “does not preclude 

retrial when a conviction has been overturned because of an error in the trial proceedings.” People 

v. Drake, 2019 IL 123734, ¶ 20. However, if the evidence presented during the first trial was 

insufficient to support a defendant’s conviction, he cannot be retried. Id. “[F]or purposes of double 
31 

jeopardy all evidence submitted at the original trial may be considered when determining the 

sufficiency of the evidence.” People v. Olivera, 164 Ill. 2d 382, 393 (1995). That is to say, even 

though we have determined that defendant’s statements to the police and the reference to those 

suppressed statements during defendant’s trial testimony should not have been introduced during 

his second trial as substantive evidence, in determining whether the double jeopardy clause forbids 

a retrial, we nevertheless consider those very statements. See People v. Lopez, 229 Ill. 2d 322, 367 

(2008) (for purposes of double jeopardy, “we consider whether the evidence presented at trial, 

including the now-suppressed handwritten statement, was sufficient to convict”). If there was 

sufficient evidence presented at the first trial to support a defendant’s conviction, retrial is the 

proper remedy. Drake, 2019 IL 123734, ¶ 21. In considering the sufficiency of the evidence, we 

must determine “whether, after viewing the evidence in the light most favorable to the State, any 

rational trier of fact could have found the essential elements of the crime beyond a reasonable 

doubt.” Lopez, 229 Ill. 2d at 367. 

¶ 77 In the present case, viewing the evidence in the light most favorable to the State and 

including defendant’s testimony from his first trial regarding his suppressed confessions, a rational 

trier of fact could have found the essential elements of the crime beyond a reasonable doubt. 

Accordingly, the double jeopardy clause does not bar retrial, and this case must be remanded to 

the circuit court for retrial without the suppressed evidence. On retrial, defendant’s statements 

during his third interview may not be used against him, as such use would violate his rights under 

the fifth amendment. The defendant’s statements during his fourth interview, suppressed pursuant 

to a Miranda violation, are admissible only if defendant testifies inconsistently with those 

suppressed statements at his retrial.
32 

¶ 78 Finally, the State raised the issue that the federal circuits, in reviewing admissibility of 

prior testimony, are split on the issue of whether the testimony should be wholesale admitted or if 

the court should evaluate the admissibility of each portion of a defendant’s prior testimony before 

admitting it at a subsequent trial. We have authority to address claims that we find likely to recur 

on remand. People v. Walker, 211 Ill. 2d 317, 343 (2004). With limited exception, however, courts 

should refrain from deciding an issue when resolution of the issue will have no effect on the 

disposition of the appeal presently before the court. Italia Foods, Inc. v. Sun Tours, Inc., 2011 IL 

110350, ¶ 41. As we believe that the trial court’s review of the transcript for evidentiary issues 

occurring within the transcript of defendant’s prior trial testimony is necessary for the disposition 

of the appeal presently before this court, we will address this issue. 

¶ 79 In the present case, defendant objected to the admission of his prior trial testimony in total. 

The State indicated it would voluntarily redact a section of the prior testimony that it believed to 

be prejudicial,

4 which included questioning of defendant about an outburst at his first trial. The 

trial court acknowledged, in ruling on the admissibility of the transcript that the prior testimony 

was admissible, that 

“[i]n reading this [transcript], I can see how there could be some confusion. It’s 

somewhat—actually it’s probably best that I wasn’t at the last trial. Because in reading this 

transcript it refers to prior testimony of that day, prior testimony of other individuals. I 

don’t know how that’s all going to play out in the next trial.” 

This statement by the trial court tends to indicate that the trial court did notice some evidentiary 

issues within the transcript; however, these portions were not redacted. That said, the trial court 

4

As referenced above, it appears that the portion of testimony that the State agreed to redact 

concerning an outburst that defendant had during the first trial was actually read into evidence.
33 

did admonish defense counsel that any further redactions from the transcript could be revisited 

prior to the beginning of the trial, and counsel did not raise any further objection. 

¶ 80 The trial court should review prior testimony for compliance with the Illinois Rules of 

Evidence before allowing such testimony to be admitted in a subsequent trial. While prior 

testimony may be admissible under one or more rules of evidence, it does not follow that 

defendant’s prior testimony is automatically admissible in its entirety. 

¶ 81 For example, in People v. Hoerer, 375 Ill. App. 3d 148 (2007), the court held that the 

defendant received ineffective assistance of counsel where defense counsel stipulated to the 

admission of defendant’s prior testimony that he had given in a codefendant’s case, which included

his admission that he engaged in plea negotiations with the State. Id. at 155. The portion of 

defendant’s testimony about prior plea negotiations was inadmissible in defendant’s trial pursuant 

to Illinois Supreme Court Rule 402(f) (eff. July 1, 1997), even if the remainder of his testimony 

was admissible. Hoerer, 375 Ill. App. 3d at 154. 

¶ 82 The parties have failed to cite, and this court has failed to reveal, any Illinois case law on 

the issue of how to treat a defendant’s testimony at a second trial where the defendant does not 

testify. There are a few instances where federal courts have addressed this issue, and we 

acknowledge those cases as persuasive authority. In the rare instances where courts have faced the 

question of how to treat such evidence, courts have indicated that evidentiary rules do apply. 

United States v. Toombs, 713 F.3d 1273, 1279 (10th Cir. 2013). The Toombs court noted several 

federal cases dealing with prior testimony of a defendant, quoting Edmonds v. United States, which 

held that “ ‘[t]he fact that the defendant does not take the stand at the second trial does not prevent 

the use of his testimony given at the former trial, if it would otherwise be admissible.’ ” Id. (quoting 

Edmonds v. United States, 273 F.2d 108, 113 (D.C. Cir. 1959)). The Toombs court also cited
34 

United States v. Grunewald and noted its holding that “ ‘prior trial testimony of [defendant] is 

properly admissible, assuming it otherwise satisfied the standards of relevancy and materiality.’ ” 

Id. (quoting United States v. Grunewald, 164 F. Supp. 644, 646 (S.D.N.Y. 1958)). Toombs further 

addressed United States v. Hanrahan, where the court noted that the defendant’s prior trial 

testimony was “ ‘not hearsay because . . . it was an admission by a party-opponent’ ” in discussing 

whether the evidence was properly admitted. Id. (quoting United States v. Hanrahan, 508 F.3d 

962, 967 n.2 (10th Cir. 2013)). Similarly, in United States v. Bohle, 475 F.2d 872 (2d Cir. 1973), 

the Second Circuit weighed the probative and prejudicial value of a defendant’s prior testimony in 

considering admissibility. Toombs, 713 F.3d at 1279. The Toombs court cited this federal 

precedent and concluded that the district court should have evaluated the testimony under the 

Federal Rules of Evidence before admitting it into evidence. Id.

¶ 83 In the present case, the trial court allowed defendant’s prior testimony into evidence over 

defendant’s objection. The trial court allowed both parties the opportunity to address any 

evidentiary issues within the transcript. The State voluntary agreed to redact certain statements it 

believed were prejudicial with agreement of defense counsel. Defense counsel did not request any 

further redaction, though given an opportunity to do so. 

¶ 84 However, the trial court did, sua sponte, notice an evidentiary issue. In addition to the 

reference to defendant’s suppressed confession, the first four pages of the transcript of defendant’s 

cross-examination involved the State repeatedly asking defendant to comment on the veracity of 

the testimony of the State’s witnesses from the first trial. The jury in the second trial did not hear 

the testimony of the other witnesses from the first trial, further compounding the issue, where in 

the second trial the jury heard testimony of defendant, commenting on the veracity of the 

witnesses’ testimony, which they had not heard. 
35 

¶ 85 It is highly improper for a prosecutor to ask a defendant’s opinion of the veracity of other 

witnesses. People v. Dowd, 101 Ill. App. 3d 830, 844 (1981). Such questioning invades the 

province of the jury, for it infringes upon their function of determining the credibility of the 

witnesses. Id. The prosecution’s practice of asking a criminal defendant to comment on the 

veracity of other witnesses who have testified against him has consistently and repeatedly been 

condemned by this court because such questions intrude on the jury’s function of determining the 

credibility of witnesses and serve to demean and ridicule the defendant. Id. 

¶ 86 While the trial court did appropriately give defendant the opportunity to object to items 

within the transcript that should be excluded and to provide a basis therein, where the court noted 

the evidentiary issues on the record, those issues should be addressed. Prior to retrial, if the State 

again seeks to introduce portions of defendant’s testimony at his first trial, consistent with this 

opinion, those portions should be reviewed for their compliance with the Illinois Rules of 

Evidence. 

¶ 87 Based on the above, it is unnecessary for this court to address defendant’s argument that 

the trial court abused its discretion in failing to conduct a formal inquiry regarding alleged jury 

misconduct. 

¶ 88 III. CONCLUSION

¶ 89 For the forgoing reasons, the judgment of the circuit court of Madison County is reversed, 

and this cause remanded for a new trial consistent with this opinion. 

¶ 90 Reversed and remanded.
36 

No. 5-18-0339

Cite as: People v. Sanders, 2021 IL App (5th) 180339 

Decision Under Review: Appeal from the Circuit Court of Madison County, No. 15-CF1880; the Hon. Neil T. Schroder, Judge, presiding. 

Attorneys

for

Appellant:

Celestine Dotson, of St. Louis, Missouri, for appellant. 

Attorneys

for

Appellee:

Thomas D. Gibbons, State’s Attorney, of Edwardsville (Patrick 

Delfino and Patrick D. Daly, of State’s Attorneys Appellate 

Prosecutor’s Office, of counsel), for the People.