¶1specially concurring:
¶2I agree with the majority that delay in presenting the defendant to a judge for a Gerstein hearing was unreasonable. However, I agree with the State that such delay is only one factor to be considered in determining the voluntariness of a confession procured during the delay. As noted by the Illinois Supreme Court in People v. House, 141 Ill. 2d 323, 380 (1990), “[D]elay does not of itself vitiate a confession but is merely a factor to be considered on the question of voluntariness.” The test is whether a confession has been freely and voluntarily made without compulsion or inducement or whether defendant’s will was overcome at the time he confessed. People v. Ballard, 206 Ill. 2d 151, 177 (2002). In determining the voluntariness of a confession, the totality of the circumstances should be considered, including, but not limited to, the following: defendant’s age, education, background experience, mental capacity, and intelligence; defendant’s physical condition at the time of questioning; the duration of detention; the duration of questioning; whether defendant was advised of Miranda rights; and whether defendant was subjected to physical or mental abuse. Ballard, 206 Ill. 2d at 177.
¶3AGE, EDUCATION, BACKGROUND EXPERIENCE, MENTAL CAPACITY, INTELLIGENCE
¶4As to defendant’s age and education, the record reflects the defendant was 23 years old with an eighth-grade education when arrested. Regarding background, defendant was an experienced felon well acquainted with the criminal justice system. He had previous convictions for armed robbery, attempted murder, unlawful use of weapon by a felon, retail theft, possession of a stolen automobile, and criminal trespass to a vehicle. At the time of his arrest, he had an attempted murder case pending in Bridgeview and he was represented by an attorney in that case. The record reflects no problem with defendant’s mental capacity or intelligence.
¶5PHYSICAL CONDITION AT TIME OF QUESTIONING
¶6Defendant testified he was threatened and beaten by various police officers during the repeated questioning which occurred while he was detained. For the first 100 hours of this detention, he denied involvement in the homicide. The record reflects that after 100 hours in custody, when defendant made his first incriminating statement, he had returned from Roseland Hospital, where he had received stitches to his.wrist after he cut his wrist with a soda pop can. Force had been used by the police in their attempts to stop the bleeding when they first discovered him injured in interview room 3. The trial court, in addressing the use of force, indicated: “The court finds that perhaps while force was used, it may have been considered somewhat excessive, defendant was thrashing around on the floor, he was resistant, he wasn’t allowing the police to help him stop the bleeding from the cut on his wrist, and there wasn’t any consistency, it did not contribute to any statements he subsequently gave. Even Mitchell admits that.”
¶7The record reflects the defendant returned from the hospital on August 4, 1999, around 11 p.m., to interview room 3 at Area 2. Defendant testified that during that time, the wrist which had just received stitches was handcuffed by Detective Van Witzenberg to the ring in the interview room and he was in constant pain. Van Witzenberg refused to loosen the handcuff. Van Witzenberg denies this version of the circumstances surrounding defendant’s detention before he gave his first incriminating statement. However, what is not disputed is that IV2 hours passed until Detective Van Witzenberg returned to interview room 3, together with Detective Arteaga, at 1:30 a.m. on August 5, 1999, and again questioned defendant, at which point he gave his first incriminating statement. The credibility of Van Witzenberg and Arteaga is critical because defendant gave his first incriminating statement to them after 100 hours in custody. Van Witzenberg was the only detective present for the videotaped confession, the first given in the State of Illinois. The record reflects inherent inconsistencies in the trial judge’s evaluation of the detectives’ credibility.
¶8Detective Van Witzenberg is the same detective who, together with Detective Arteaga, testified that defendant voluntarily helped the police investigate the homicide and willingly stayed in interview room 3 on August 1, 1999, with the door locked, from 6 a.m. until 2 p.m. Detectives Van Witzenberg and Arteaga testified they spoke to defendant for 20 to 30 minutes around 4 a.m. on August 1, 1999, and told him he was not going to be charged, but released. By that time witness Marie Coffey had told the police that the person she had seen running from the scene of the shooting was not defendant. Coffey identified codefendant Kevin Johnson.
¶9Detectives Van Witzenberg and Arteaga testified that they asked defendant if he would help in the murder investigation. According to Van Witzenberg and Arteaga, defendant agreed to help the police; voluntarily accompanied them from the 6th District to Area 2 around 6 a.m.; and willingly stayed in interview room 3 for the next eight hours, with the door locked, until 2 p.m. Van Witzenberg and Arteaga testified that on August 1, 1999, at 2 p.m. defendant was told he was identified as the shooter and placed under arrest.
¶10The trial judge found defendant’s Initial detention from 9:45 p.m. on July 31, 1999, to 6 a.m. on August 1, 1999, to be lawful; however, the trial judge rejected Van Witzenberg and Arteaga’s version of the circumstances surrounding defendant’s eight hours of detention on August 1, 1999, from 6 a.m. to 2 p.m., finding that detention unlawful. The trial judge, however, accepted their version of the circumstances surrounding defendant’s continued detention from 2 p.m. on August 1, 1999, until his Oerstein hearing five days later on August 6, 1999, finding that detention lawful.
¶11Van Witzenberg and Arteaga were present during defendant’s repeated questioning and repeated denials for the first 100 hours of detention. They were also present for the incriminating statements made by defendant after 100 hours of detention. Their credibility is critical regarding defendant’s physical condition during his lengthy detention. The record reflects inherent inconsistencies in the trial judge’s resolution of the detectives’ credibility. Inconsistent credibility findings preclude deference. As such the trial judge’s findings regarding testimony provided by these witnesses as to defendant’s physical condition during repeated interrogation is not entitled to deference and is against the manifest weight of the evidence. See People v. Chapman, 194 Ill. 2d 186, 214 (2000) (where a trial court’s ruling on a motion to suppress a confession involves factual determinations and credibility assessments, a reviewing court will not disturb the ruling unless it is manifestly erroneous).
¶12MIRANDA WARNINGS
¶13The defendant was an experienced criminal well acquainted with his Miranda rights. It is undisputed that during the repeated interrogation which occurred during the first 100 hours of detention defendant denied participation in the homicide. Defendant testified he was aware of his Miranda rights and repeatedly, to no avail, asked Van Witzenberg if he could call the lawyer who was representing him on his pending attempted murder case. Van Witzenberg testified that defendant never asked to call his lawyer. As previously noted, the record reflects inconsistencies in the trial judge’s findings regarding Van Witzenberg’s credibility.
¶14DURATION OF DETENTION
¶15As noted by the majority, Gerstein requires a prompt judicial determination of probable cause to arrest as a prerequisite for an extended restraint of liberty following a warrantless arrest. Gerstein, 420 U.S. at 114, 125, 43 L. Ed. 2d at 65, 71-72, 95 S. Ct. at 863, 868-69. Illinois has codified the Gerstein rule; however, the Illinois statute does not provide a remedy for its violation. 725 ILCS 5/109—1(a), 109 — 2(a) (West 1996). The “promptness requirement of Gerstein” requires probable cause determinations by neutral magistrates within 48 hours of a warrantless arrest. County of Riverside v. McLaughlin, 500 U.S. 44, 56, 114 L. Ed. 2d 49, 63, 111 S. Ct. 1661, 1670 (1991).
¶16In the instant case, a judicial determination of probable cause was not made within 48 hours of arrest. Defendant made his first incriminating statement after being held in custody for 100 hours. He gave a videotaped confession after being held in custody for 108 hours. Defendant was brought to court for a Gerstein hearing 5V2 days after arrest. When a probable cause determination is not made within 48 hours, the State has the burden of demonstrating a “bona fide emergency or other extraordinary circumstance” to explain the delay. McLaughlin, 500 U.S. at 57, 114 L. Ed. 2d at 63, 111 S. Ct. at 1670.
¶17The trial court in resolving the voluntariness of defendant’s confession made the following finding regarding delay:
“The length of time he was in custody with the police was not unreasonable under the circumstances, did not contribute to the statements at. all, and the injury that took place to Mitchell in custody most of which were brought about by his own conduct, the cutting of the wrist, refusal to take off the clothes and put on the paper suit. If there were any injuries that were somewhat excessive, in any event, they were not contributed to in his videotaped statement.”
¶18Defendant was arrested on July 31, 1999, a Saturday, and not brought to court until July 6, 1999, the following Friday. With the exception of Sunday, Monday through Friday were regular court days during which defendant could have been presented to a judge for a Gerstein hearing. See People v. Dove, 147 Ill. App. 3d 659, 667 (1986) (court found delay not unreasonable because 2 of the 4V2 days were Saturday and Sunday). The record reflects no bona fide emergency or other extraordinary circumstance to preclude the delay, which exceeded 100 hours, from being considered as a factor that weighs in favor of excluding defendant’s confession. For the reasons articulated by the majority, the finding by the trial court that the delay was not unreasonable was against the manifest weight of the evidence.
¶19DURATION OF QUESTIONING
¶20Regarding the duration of the questioning, it is undisputed that defendant was questioned repeatedly by police and prosecutors during the first 108 hours of the 5V2 days he was detained before he was brought to court for a Gerstein hearing. The testimony of various State witnesses, including police and prosecutors, demonstrates the fact that repeated questioning of defendant occurred including, but not limited to, the following: (1) at the 6th District, around midnight on July 31, 1999, defendant was interviewed for 15 to 20 minutes by Detectives Van Witzenberg and Arteaga; (2) at 4 a.m. on August 1, 1999, Van Witzenberg and Arteaga had a 20- to 30-minute conversation with defendant at the 6th District; (3) at Area 2 on August 1, 1999, after 2 p.m., when defendant was informed he was under arrest, Van Witzenberg and Arteaga interviewed defendant for approximately 20 minutes; (4) at Area 2 on August 1, 1999, shortly before midnight, Assistant State’s Attorney (ASA) Buntinas together with Van Witzenberg interviewed defendant for 30 to 45 minutes; (5) at Area 2 on August 2, 1999, at 4 a.m., ASA Buntinas together with Van Witzenberg interviewed defendant for 30 to 45 minutes; (6) at Area 2 on August 2, 1999, around 7 p.m., Van Witzenberg and Arteaga interviewed defendant for 30 to 45 minutes and viewed 3 or 4 times the video tape from the store where the victim was shot; (7) at Area 2 on August 2, 1999, around 11:30 p.m., ASA Buntinas, with Van Witzenberg and Arteaga, interviewed defendant for about two hours; (8) ASA Buntinas continued to interview defendant into the early morning hours of August 3, 1999, viewing the store videotape with defendant around 2 a.m. in the presence of Van Witzenberg and Arteaga; and (9) ASA Buntinas alone continued to interview defendant during a five-hour span of time on August 3, 1999, from 5 a.m. until 10 a.m. with occasional breaks in the interview. During these various interviews defendant continued to deny his involvement in the shooting.
¶21On August 3, 1999, Arteaga told defendant that he had a warrant and defendant would be transported to Bridgeview on August 4, 1999. Defendant was allowed to call his mother around 10:30 p.m. on August 3, 1999. The fact defendant did not communicate with a family member until he was in custody for approximately 72 hours is a factor to be considered in determining the admissibility of defendant’s confession. People v. Hadnot, 163 Ill. App. 3d 215 (1987).
¶22By 9:30 a.m. on August 4, 1999, defendant had been in custody for 84 hours. Defendant was not transported to Bridgeview on August 4, 1999, because the warrant had not been lodged through the “LEADS” system; however, that fact does not explain why defendant was not taken to court for a Gerstein hearing. Defendant could have had his Gerstein hearing and at some later point could have been transported to Bridgeview to clear up the warrant. ASA Buntinas testified that as of August 3, 1999, defendant was not charged with anything other than the warrant.
¶23Moreover, the warrant was generated by the instant case. The warrant was for violation of bail bond in that defendant, while on bond, committed the murder in the instant case. Not only was defendant not charged with the murder in the instant case when the warrant was issued, but defendant had not been identified in the lineup, nor had he made any incriminating statements before the warrant issued on August 3, 1999. The documents accompanying the warrant included codefendant Kevin Johnson’s statement implicating defendant.
¶24Regarding the problems with the warrant, the trial judge found as follows:
“On August 4th 2:30 in the afternoon, Mitchell was still at Area 2, and the court finds that he was still there due to a legitimate mixup about getting him out to Bridgeview. The testimony establishes to my satisfaction that the police and State’s Attorney’s Office did not act in bad faith in trying to get Mitchell out to Bridgeview on August 4th, but due to a problem with the Leads processing situation, the warrant was not lodged properly, and Mitchell was not taken out to Bridgeview on August 4th for a court date concerning the violation of bail bond which was filed August 3rd before Judge Davey.”
¶25While the trial judge addressed problems with the warrant, he failed to address the lack of a bona fide emergency or extraordinary circumstance to explain the Oerstein delay. McLaughlin, 500 U.S. at 57, 114 L. Ed. 2d at 63, 111 S. Ct. at 1670. The record reflects no bona fide emergency or extraordinary circumstance to explain the delay. It is undisputed that on August 4, 1999, defendant’s attorney was waiting for him at Bridgeview because the police told him they were transferring defendant to court, yet the police failed to do so. It is undisputed the police did not keep their promise that defendant would be taken to Bridgeview. Hadnot, 163 Ill. App. 3d at 215 (factor relied upon by court in suppressing statements was the fact that police did not keep their promise and release defendant after he passed the polygraph test).
¶26During the time defendant was in custody, the police and prosecution repeatedly interrogated defendant and continued to attempt to gather additional evidence to justify defendant’s arrest, while defendant continued to deny involvement in the homicide. McLaughlin, 500 U.S. at 56, 114 L. Ed. 2d at 63, 111 S. Ct. at 1670 (delay is unreasonable if for purpose of gathering additional evidence to justify arrest). It is undisputed that defendant was not charged with murder until five days of police investigation were completed while defendant was detained at Area 2, which culminated in defendant’s videotaped confession at 9 a.m. on August 5, 1999. It is undisputed defendant was repeatedly questioned at Area 2 during those five days.
¶27Regarding the homicide investigation, the record reflects that Detective Hill had information as early as August 1, 1999, that Demetrius Jones was a witness. Hill had contact with Jones on August 1, 1999, sometime between 9 a.m. and noon, when Demetrius Jones told Hill that “Mitch and his boys” did the shooting. That information conflicted with information provided by Marie Coffey at 1:30 a.m. on August 1, 1999, that the person running from the scene was not defendant. However, Demetrius Jones was not taken to Area 2 on August 1, 1999, to view defendant in a lineup, even though defendant was detained in interview room 3 at Area 2 at that time.
¶28Detective Hill next had contact with Demetrius Jones three days later during the afternoon of August 4, 1999. During those three days defendant was detained in interview room 3 at Area 2 and repeatedly interrogated by the police and prosecution. On August 4, 1999, Hill notified Area 2 between 1 p.m. and 2 p.m. that he had a witness to view defendant in a lineup. By that time defendant had been in custody 88 hours. It was not until 94 hours after being held in custody, at 7:45 p.m. on August 4, 1999, that defendant participated in a lineup conducted by Van Witzenberg and Arteaga and viewed by Demetrius Jones. Defendant was identified by Jones, returned to interview room 3, and informed by Detective Arteaga of the identification. Shortly thereafter defendant cut his wrist with a soda pop can.
¶29The court’s finding of fact that defendant confessed because he was identified in the lineup is contradicted by the evidence. Shortly after being told he was identified in the lineup, defendant did not confess; rather, he cut his wrist with a pop can. Defendant’s first incriminating statement, at 1:30 a.m. on August 5, 1999, did not occur until six hours after he was told he was identified in the lineup. Upon returning from the hospital, defendant was again placed in interview room 3. Defendant testified that Van Witzenberg cuffed his injured wrist to the ring on the wall in interview room 3, causing constant pain, and refused to loosen the handcuff; however, Van Witzenberg denies doing that. The trial court resolved this credibility question in favor of Van Witzenberg. As noted, the trial court made inconsistent findings regarding the credibility of Van Witzenberg. For the reasons previously discussed, the trial judge’s finding regarding Van Witzenberg’s credibility is not entitled to deference and is against the manifest weight of the evidence.
¶30PHYSICAL OR MENTAL ABUSE OR LATENT COERCION
¶31Defendant received stitches at Roseland Hospital and by 11 p.m. on August 4, 1999, he was returned to interview room 3 at Area 2. Defendant testified he was repeatedly threatened, beaten and told he would be held indefinitely if he did not confess. Every witness produced by the State denied these allegations. Disregarding defendant’s testimony that he was told he could be held indefinitely, and disregarding his testimony that he was physically and mentally abused by various officers, the length and circumstances surrounding the detention, including defendant’s persistent denial, are factors to be considered regarding the admissibility of his confession. By 11 p.m. on August 4, 1999, when defendant was returned to interview room 3 from Rose-land Hospital, he had been in custody 98 hours. After cutting his wrist and returning from the hospital, where he had received stitches, he was not taken to the lockup for transportation to court the morning of August 5,1999, but returned to interview room 3 at 11 p.m. for further questioning by Van Witzenberg.
¶32Questioning of defendant did not take place immediately; rather, he testified that he was left in interview room 3 with his injured wrist handcuffed to the ring. As previously noted, that fact is disputed; what is not disputed is that defendant, with the exception of being photographed to preserve the lineup, was left in interview room 3 for IV2 hours, until Van Witzenberg with Arteaga resumed interrogation at 12:30 a.m. on August 5, 1999. At this point, defendant had been in custody for 100 hours and he made his first incriminating statement. Prolonged detention between arrest and confession “ ‘may serve to amplify the coercion latent in a custodial setting, particularly when there are other indicia of coercion.’ ” People v. Ollie, 333 Ill. App. 3d 971, 985 (2002), quoting People v. Lekas, 155 Ill. App. 3d 391, 414 (1987).
¶33After Van Witzenberg completed her questioning, ASA Hamilton had a short 5-minute discussion with defendant followed by a 45-minute interview with Van Witzenberg present. During the early morning hours of August 5, 1999, ASA Hamilton spoke to defendant at various times before the 9 a.m. videotaped confession was given by defendant. The videotaped confession was taken at 9 a.m. on August 5, 1999, which was eight hours after defendant’s first incriminating statement to Van Witzenberg. At that point defendant had been in custody 108 hours. During the first 100 hours that defendant had been in custody, it is undisputed that he had been questioned repeatedly and he repeatedly had denied his involvement in the shooting. He had also been treated at the hospital for self-inflicted wounds and then returned to interview room 3, where IV2 hours later interrogation resumed at 12:30 a.m. on August 5, 1999. Repeated interrogation and persistent denial are factors to be considered in determining the admissibility of defendant’s confession. People v. Travis, 170 Ill. App. 3d 873 (1988).
¶34This was not a case where a defendant began making incriminating statements the moment he entered the station, or even several hours after being questioned at the police station; rather, the defendant in this case confessed after interrogation which took place over a period of 100 hours. In re Lamb, 61 Ill. 2d 383, 388 (1975) (where first oral admission occurred 16 hours after arrest and written statement was made 26 hours after arrest, totality of circumstances did not justify suppression of confession); House, 141 Ill. 2d at 380 (where last inculpatory statement was made after 37 hours, totality of circumstances did not require suppression); People v. Nicholls, 42 Ill. 2d 91, 101 (1969) (no suppression where confession was made after 34 hours); People v. Carter, 39 Ill. 2d 31, 38 (1968) (no suppression where confession was made after 32 hours).
¶35With the exception of receiving treatment at Roseland Hospital and the lineup, defendant remained in the same interview room at Area 2 until he was taken for the Gerstein hearing on August 6, 1999. For a period of 100 hours, until August 4, 1999, at 1:30 a.m., defendant denied involvement in the shooting. This fact was noted by the trial judge: “ ‘All of the statements up to the time pretty close to the videotaped statement was basically, “I wasn’t there, I didn’t do it, no knowledge of the homicide,” or whatever ….’ ” However, the trial judge did not find that this undisputed fact contradicted the testimony of police and prosecutors that defendant confessed freely and voluntarily-
¶36The record reflects that defendant failed to engage in an ongoing dialogue providing information about the homicide to the detectives. See People v. Groves, 284 Ill. App. 3d 570, 578-79 (1998). In Groves the court relied on the totality of the circumstances, including the voluntary dialogue between the defendant and police in which the defendant provided information for police to further investigate, in finding the four-day presentment delay reasonable and the confession voluntary. The record in the instant case reflects no such voluntary dialogue, but rather, a persistent denial by defendant for 100 hours.
¶37In People v. Travis, 170 Ill. App. 3d 873, 886 (1988), the defendant was held in custody for four days and claimed he was repeatedly interrogated, rendering his confession involuntary. The court rejected this argument because the defendant began making incriminating statements the moment he entered the station. Travis, 170 Ill. App. 3d at 886. However, the court noted as follows: “If defendant had not spoken until the last day, his position might have more merit. However, defendant began speaking promptly, and in each subsequent interrogation, after waiving his rights, gave more incriminating information.” Travis, 170 Ill. App. 3d at 886. The record reflects the opposite is true in the instant case, where defendant persisted in denial providing no incriminating information for a period of 100 hours under repeated interrogation.
¶38CONCLUSION
¶39The hearing regarding the voluntariness of defendant’s confession took place over a period of 9 months and generated over 900 pages of testimony from 18 witnesses. The trial together with the hearing generated 12 volumes of transcripts and numerous exhibits, including defendant’s videotaped confession. A review of this record reflects the trial judge was manifestly erroneous in denying suppression of defendant’s confession based on the totality of the circumstances, including, but not limited to, the following: (1) the length of the delay in taking defendant to court for a Gerstein probable cause hearing; (2) the failure of the State to demonstrate any bona fide emergency or other extraordinary circumstance for the delay; (3) the nature, extent, and duration of repeated questioning by police and prosecution; (4) defendant’s physical condition at the time of questioning; (5) defendant’s denial, which persisted for 100 hours; (6) the tried court’s inconsistent credibility findings; and (7) the trial court’s findings of fact, which were contradicted by the record.