NO. 3--00--0672

IN THE

APPELLATE COURT OF ILLINOIS

THIRD DISTRICT

A.D., 2002

JUSTICE HOMER delivered the opinion of the court:

Following a stipulated bench trial, Quentin Traylor wasfound guilty and sentenced to 38 years' imprisonment for firstdegree murder (720 ILCS 5/9--1 (West 1998)), 6 years forharassment of a witness (720 ILCS 5/32--4a (West 1998)) and 6years for intimidation (720 ILCS 5/12--6 (West 1998)). The 6-year terms were to be served concurrently to each other butconsecutive to the 38-year term. Traylor appeals hisconvictions. After our careful review, we reverse and remand fora new trial.

On September 24, 1999, Traylor was brought to the WillCounty sheriff's office for questioning related to the murder ofJulius Smith. Sheriff's investigators Terry Paggi and EdwardHayes took Traylor to an interview room, presented him with aform advising him of his Miranda rights and, according to theinvestigators, also read Traylor his Miranda rights. Traylorsigned the Miranda form, and the investigators questioned Traylorfor approximately three hours. During the interview, Simon PeterMcMurtry, a co-suspect, was brought into the interview room. Atfirst McMurtry indicated that Traylor did not shoot Smith, butwhen McMurtry was brought into the room again, he indicated thatTraylor did shoot the victim. Shortly after that, Traylor gavean oral statement confessing to Smith's murder and made a shortvideotaped confession. Traylor was then arrested and taken byofficers to a holding cell in the Will County jail, where heremained until the next day when he was formally arrested.

Traylor was formally arrested on September 25, and aphotograph was taken of him at that time. Immediately after hewas formally arrested, Traylor was taken to a segregated portionof the jail where he had no contact with other inmates. Traylorremained in that portion of the jail for approximately two weeks. On October 13, Traylor was indicted for first degree murder,harassment of a witness and conspiracy in connection with thedeath of Julius Smith. Traylor pled not guilty. Traylor filed amotion to suppress his confession because he alleged he was notgiven Miranda warnings and because his statements were coerced bypolice officers who physically abused him. The trial courtconducted a hearing in respect to the motion to suppress.

At the hearing, Traylor testified that before his interviewwith the officers, he was not verbally given his Miranda rightsbut was simply given a form to sign, which he signed. He alsotestified that during the interrogation, the officers trippedhim, hit him in the nose and ribs, and squeezed his genitals. Traylor said he agreed to make a statement only after one of theofficers squeezed his genitals. He testified that he told hisattorney about the abuse and admitted that he did not disclose iton any of the county jail health forms he had filled out forother medical problems. Even though Traylor did not mention thealleged abuse in any of the medical forms, Traylor testified thathe did tell a nurse at the jail that he had been beaten by thepolice. Traylor testified that he went to St. Joseph's MedicalCenter on September 21 because his eye was yellow and his hairwas falling out. He denied that he complained of a red nose atthe medical center.

Michael Vanover, an investigator for the Will County publicdefender's office, testified that he took photos of Traylor onSeptember 29. A review of those photos clearly shows somebruising on the right side of Traylor's nose. Vanover statedthat he saw bruising in the September 25 booking photo that wassimilar to the bruising shown in the September 29 photos. CoreyKelly, an acquaintance of Traylor, testified that Traylor had nofacial injuries when he was taken by the police to be questionedon September 24, but Kelly did notice redness and bruising onTraylor's nose in the booking photo. Additionally, RobertHadala, a private investigator hired by Traylor's attorney,testified that he took photos of Traylor on November 4, 1999, andthat there was a mark on Traylor's face around his nose on thatdate.

Inspectors Paggi and Hayes stated that Traylor had no cuts,bruises, wounds or injuries of any kind when he came or left thesheriff's office on September 24. They also denied seeing anybruising, redness or marks on Traylor's face in the September 25booking photo. They both acknowledged an injury was present inthe September 29 photo. They denied that Traylor had that injuryon September 24 or 25.

After considering the above evidence, the trial court foundthat the defense had shown that Traylor was injured "while inpolice custody." Thereafter, the hearing continued, and theState presented its witnesses. Joan Adams, a registered nurse atSt. Joseph's Medical Center, testified that Traylor had been tothe emergency room on September 21, 1999, and complained ofhaving a red nose. Nurse Adams remembered that the tip ofTraylor's nose was red at that time but specifically deniedseeing any marks on the bridge of his nose at that time. Shestated that she would have documented it in her triage report ifshe had seen any such marks.

The State also presented the testimony of several policeofficers who denied that Traylor was physically coerced duringthe interview. Investigator Paggi reiterated that Traylor wasnot physically abused in any way during his interview. Investigator Michael Guilfoyle and Sergeant Ryan Shea, whoobserved parts of the interview, testified that they never sawTraylor being struck by the officers. Additionally, LieutenantDavid Van Dyke testified that he watched the interview and neversaw Traylor being struck, taken down or grabbed at any time. After hearing the above testimony, the trial court deniedTraylor's motion to suppress, finding that Traylor's statementswere made voluntarily after he had been advised of his Mirandarights.

Traylor then appeared in court for a stipulated bench trial. The trial court found Traylor guilty of murder (three counts),harassment of a witness, intimidation and conspiracy (twocounts). The court vacated the convictions for two counts ofmurder and both counts of conspiracy. The court sentencedTraylor to 38 years for murder and extended-term sentences of 6years each for harassment of a witness and intimidation. Thesix-year terms were to run concurrently with each other butconsecutive to the murder sentence. Traylor appeals arguing thatthe trial court erred by (1) failing to suppress his confession,(2) sentencing him for both intimidation and harassment of awitness, (3) sentencing him consecutively for intimidation andharassment of a witness, and (4) sentencing him to extended termsfor intimidation and harassment of a witness. Because we agreethat the trial court should have suppressed Traylor's confession,we reverse and remand for a new trial on that ground. Therefore,it is not necessary for us to address Traylor's additionalarguments.

In order for a confession to be admissible as evidence, thetrial court must determine that the defendant made it freely,voluntarily and without compulsion or inducement. People v.Gilliam, 172 Ill. 2d 484, 500, 670 N.E.2d 606, 613 (1996). Aconfession is voluntary if, based on the totality ofcircumstances, the accused's will was not overborne at the timehe confessed. People v. Kincaid, 87 Ill. 2d 107, 117, 429 N.E.2d508, 511 (1981). In reviewing whether a defendant's confessionis voluntary, a reviewing court will accord great deference tothe trial court's factual findings and will reverse thosefindings only if they are against the manifest weight of theevidence. In re G.O., 191 Ill. 2d 37, 50, 727 N.E.2d 1003, 1010(2000).

When a defendant moves to suppress his confession, the Statebears the burden to establish that the confession was voluntary. People v. Woods, 184 Ill. 2d 130, 145, 703 N.E.2d 35, 42 (1998). Once a defendant establishes that he has been injured while inpolice custody, a heightened burden of proof is imposed on theState to show by clear and convincing evidence that the injurieswere not inflicted as a means of producing the confession. People v. Wilson, 116 Ill. 2d 29, 40, 506 N.E.2d 571, 575 (1987).

We hold that the trial court's decision to deny Traylor'smotion to suppress was against the manifest weight of theevidence. The trial court found that an injury on Traylor's nosewas present on September 29 and possibly on September 25 based onphotographs. After viewing the photographs, we find thatdefinite bruising was present on Traylor's nose in the September25 photograph. Additionally, we find that such bruising was notpresent before Traylor's interrogation based on the testimony ofevery witness, including the investigators. Because Traylorproved that he had been injured "while in police custody," theState was required to prove by clear and convincing evidence thatTraylor's injuries were not inflicted as a means of producing aconfession. See Wilson, 116 Ill. 2d at 40, 506 N.E.2d at 575. We find that the State failed to meet its burden of proof.

This case is factually similar to Woods where the supremecourt found that the State had not met its burden of proving byclear and convincing evidence that the defendant's injuries werenot inflicted in order to obtain a confession. In Woods, it wasundisputed that the defendant had injuries, including an abrasionon his forehead and eye, on April 25, three days after he hadbeen brought into the police station. Woods, 184 Ill. 2d at 148,703 N.E.2d at 43. From the time that the defendant arrived atthe police department on April 22 until the time when he wasbooked and photographed on April 25, he was either in thepresence of police officers or in a single-person holding cell. Woods, 184 Ill. 2d at 149, 703 N.E.2d at 44. The court reasonedthat since the defendant was either in the presence of policeofficers or in a single-person cell at all times, the Stateshould have been able to prove whether the defendant sustainedhis injuries before or after his confession, as well as the causeof his injuries. Woods, 184 Ill. 2d at 150, 703 N.E.2d at 44. Because the State did not adduce clear and convincing evidence asto when or how the defendant's injuries occurred or that theinjuries were unrelated to his confession, the defendant'sconfession was suppressed. Woods, 184 Ill. 2d at 150, 703 N.E.2dat 44.

Likewise, in this case, Traylor was in the presence ofofficers or in a single-person cell from the time of his arrestuntil the time of his booking photograph taken on September 25,which shows an injury on the bridge of his nose. Because Traylorwas either in the presence of police officers or in a single-person cell at all times, the State should have been able toprove whether the defendant sustained his injuries before orafter his confession, as well as the cause of his injuries. See Woods, 184 Ill. 2d at 150, 703 N.E.2d at 44. Here, however, theState failed to do so.

The State's presentation of witnesses consisted almostentirely of police officers who denied any wrongdoing. However,mere denials of coercion by police officers are insufficient toestablish by clear and convincing evidence that a defendant'sinjuries were not sustained as a means of eliciting a confession. Wilson, 116 Ill. 2d at 40, 506 N.E.2d at 575. The only testimonyin addition to the police officers' was that of Nurse Adams. Nurse Adams' testimony, however, does not help the State provethat Traylor was not injured while in police custody becausealthough she testified that Traylor had some redness on the tipof his nose three days prior to him being arrested, shespecifically denied that he had any bruising on the bridge of hisnose. Additionally, all of the witnesses, including the policeofficers, testified that Traylor had no injuries to his nose whenhe was brought to the sheriff's office for questioning onSeptember 24, so any injury that may have been present three daysbefore that is irrelevant.

The only other evidence that the trial court foundsupporting the State's position that Traylor was not injured bythe police was two "Inmate Health Service Requests" submitted byTraylor on October 6 and October 16 in which Traylor soughttreatment for various medical conditions but did not seektreatment for his injured nose. Those forms merely establishthat two and three weeks after the alleged abuse, Traylor did notreport in writing the injuries he claims were caused by thepolice. We find these documents are insufficient to sustain theState's burden of establishing by clear and convincing evidencethat Traylor's injuries were not inflicted as a means ofproducing his confession.

As explained in Woods, the State may satisfy its burden ofproof by presenting evidence that the defendant was uninjured atthe time of his confession and that he suffered injuries sometimethereafter. Woods, 184 Ill. 2d at 147, 703 N.E.2d at 43. If theState can prove by clear and convincing evidence that adefendant's injuries occurred after his confession, the State isnot required to explain the defendant's injuries. Woods, 184Ill. 2d at 147-48, 703 N.E.2d at 43. The State contends thatTraylor's injuries were not present until September 29 andtherefore the police did not cause the injury during theinterrogation. However, the photographs show an injury presenton September 25, only one day after Traylor's confession. Therefore, it was incumbent upon the State to prove by clear andconvincing evidence that Traylor's injury was not present at thetime of his confession but happened sometime after that. However, the State failed to do so.⁽¹⁾

Even assuming, arguendo, that no injury was clearly visibleuntil September 29, the State still failed to meet its burden ofproving that Traylor's injuries occurred after his confessionbecause from the time that Traylor arrived at the sheriff'soffice on September 24 until September 29, he was either in thepresence of police officers or in a single-person cell. BecauseTraylor was either in the presence of police officers or in asingle-person cell at all times, the State should have been ableto prove whether the defendant sustained his injuries before orafter his confession, as well as the cause of his injuries. SeeWoods, 184 Ill. 2d at 150, 703 N.E.2d at 44.

Because the State did not adduce clear and convincingevidence that Traylor's injuries were unrelated to hisconfession, his confession should have been suppressed. Woods,184 Ill. 2d at 150, 703 N.E.2d at 44. Because the use of acoerced confession as substantive evidence of guilt is neverharmless error, Traylor's convictions are reversed and this causeis remanded for a new trial. See Wilson, 116 Ill. 2d at 41, 506N.E.2d at 576.

For the foregoing reasons, the judgment of the circuit courtof Will County is reversed, and the cause is remanded to thecircuit court for a new trial.

Reversed and remanded.

LYTTON, P.J., and SLATER, J., concur.

1. The record reveals that Traylor made a videotapedstatement on September 24, but that videotape was never offeredinto evidence by either the State or the defense. If thatvideotape had been admitted into evidence and clearly showed thatTraylor had no injuries at that time, the State could havereadily sustained its burden of proof that Traylor was injuredsometime after his confession.