THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. SIEMON T. MOORE, Defendant-Appellee, 368 Ill. App. 3d 549

JUSTICE SLATER delivered the opinion of the court: The defendant, Siemon T. Moore, was charged with criminal sexual assault. 720 ILCS 5/12 — 13(a)(1) (West 2004). In the midst of a jury-trial, the State, after admitting that the audio portion of a videotape used to record the defendant’s postarrest statement had malfunctioned, attempted to admit a three-paragraph

summary of the statement which had been prepared by a Kankakee city police detective. The trial court granted the defendant’s motion to suppress his post-arrest statement on the ground that the statement was not voluntarily made and a mistrial was declared. The State appeals the trial court’s order granting the defendant’s motion to suppress. For the following reasons, we affirm. I. FACTS The record reflects that when the defendant was arrested on January 1, 2004, he was given a form entitled “Voluntary Statement” to sign.

The form provided, in pertinent part: “The person to whom I give the following voluntary statement is Det. Sgt. Jay Etzel, having identified and made himself known as a Kankakee City Police Detective. DULY WARNED AND ADVISED ME, AND I KNOW: 1. I have the right to remain silent. I do not have to talk to you unless I want to do so. 2. If I do want to talk to you, I must be advised that whatever I say can and will be used as evidence against me in court. 3. I have a right to consult with a lawyer and to have a lawyer present with me while I am being questioned. 4.

If I want a lawyer, but am unable to pay for one, a lawyer mil be appointed to represent me free of any cost to me. 5. A videotape providing a video and audio record of this interview is being made to insure my rights and the accuracy of our conversation. I voluntarily consent to the recording.” The defendant initialed all five sections of the form. Detective Etzel and defendant both signed the bottom of the form. The defendant then spoke with Detective Etzel on videotape for one hour and five minutes. At trial, it was discovered that the audio portion of the defendant’s videotaped statement had malfunctioned.

The State informed the trial court that it would not attempt to admit the videotape into evidence. Instead, the State intended to have Detective Etzel testify to the statements that defendant had made to him. In response, the defendant filed a motion to suppress any statements given by him to police detectives after his arrest. In his motion, the defendant argued that his statement was not voluntarily given because he would not have waived his Miranda rights and given the statement without the guarantee that his words would be preserved. See Miranda v. Arizona, 384 U.S. 436, 16 L. Ed. 2d 694, 86 S.

Ct. 1602 (1966). The defendant argued that the absence of the audio portion of the videotape rendered his Miranda waiver invalid. See Miranda v. Arizona, 384 U.S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602 (1966). The defendant also claimed that the “law of completeness” required that his complete statement be admitted into evidence. As an offer of proof, the State read into the record Detective Etzel’s three-paragraph

summary of the defendant’s one-hour plus statement. Detective Etzel said that he transferred the defendant to the Detective Bureau on January 1, 2004. He read the defendant his Miranda rights. See Miranda v. Arizona, 384 U.S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602 (1966). The defendant told Etzel that he understood his rights and agreed to speak with Etzel. The defendant also agreed to have his statements audiotaped and videotaped. The interview began at 2:15 p.m. and ended at 3:20 p.m: In Etzel’s

summary, he said that the defendant’s statement contained inconsistent explanations of events surrounding the charged offense. Etzel did not consider the defendant’s statement to be a confession. The defendant did not admit to any of the elements of criminal sexual assault. See 720 ILCS 5/12 — 13(a)(1) (West 2004). At the hearing on the defendant’s motion to suppress, the trial court questioned the assistant State’s Attorney about paragraph five of the Voluntary Statement form. The following conversation took place: “THE COURT: What about paragraph five, Mr. Deuel? MR. DEUEL: I understand paragraph five.

THE COURT: That’s the issue here. Quite frankly, just the converse, when you have a case where they do video record them and there is no paragraph five, I’ve not let it in. So it’s just the opposite of that. I’m going to grant Mr. Sack’s motion to suppress. I do not think it would be fair. I think it forces the defendant to testify.” The trial court also discussed the voluntariness of the defendant’s statement.

Specifically, the judge stated: “This defendant, in fact, signed the Miranda waiver when it had a paragraph five on it which said a videotape providing a video and audio recording of this interview is being made to insure my rights and the accuracy of our conversation. I voluntarily consent to the recording. If that were not on this Miranda, my ruling would be different. But I do not know, as I sit here, whether — none of us know — whether Mr.

Moore gave his statement based on paragraph five and that’s — that was the reason he voluntarily gave his statement.” The trial court also held that Detective Etzel’s statement should be suppressed based upon: (1) the completeness doctrine (see People v. Stackhouse, 354 Ill. App. 3d 265, 820 N.E.2d 1027 (2004)); and (2) if Etzel testified about the defendant’s postarrest statement it would force the defendant to testify. A mistrial was declared. II. ANALYSIS On appeal, the State claims that the trial court’s order granting the defendant’s motion to suppress is incorrect as a matter of law.

Specifically, the State contends that the trial court erred when it found: (1) the defendant’s statement to the police was not voluntary; (2) the defendant had a right to have his statement electronically recorded; (3) the “completeness doctrine” barred the defendant’s statement from being admitted into evidence; and (4) the defendant would be forced to testify if Etzel’s statement was admitted into evidence. A. Voluntariness of Statement In determining whether a defendant’s statement was voluntarily made, a court must look at the totality of the circumstances surrounding the making of the statement.

See People v. Brown, 169 Ill. 2d 132, 661 N.E.2d 287 (1996). Of particular importance is whether the police made any threats or promises to obtain the defendant’s statement. People v. Gilliam, 172 Ill. 2d 484, 670 N.E.2d 606 (1996). The question of whether the defendant’s statement was voluntary is subject to de novo review. People v. Sanchez, 362 Ill. App. 3d 1093, 841 N.E.2d 478 (2005). We have reviewed the record and agree with the trial court that the defendant’s statement was not voluntarily made.

Here, the police were under no obligation to promise the defendant that his statement would be video and audio recorded to insure his rights and the accuracy of the conversation. However, they did make such a promise in paragraph five of the Voluntary Statement form. The police broke that promise when the audio portion of the videotape malfunctioned. This is true even if the malfunction was not the fault of the police department. We need not determine whether the defendant would have signed the Voluntary Statement form if he had not been promised that his statement would be preserved through video and audio tape.

The totality of the circumstances surrounding the making of the defendant’s postarrest statement indicate that the defendant was promised a video and audio recording of his statement and that promise was not kept. This is sufficient evidence that the defendant’s statement was not voluntarily given. The trial court properly granted the defendant’s motion to suppress. B. Defendant’s Right to Have Statement Recorded Next, the State argues that the trial court erroneously found that the defendant had a right to have his statement electronically recorded.

As support for this contention, it refers to the conversation between the trial court and the assistant State’s Attorney regarding paragraph five of the Voluntary Statement form. Again, the following conversation took place: “THE COURT: What about paragraph five, Mr. Deuel? MR. DEUEL: I understand paragraph five. THE COURT: That’s the issue here. Quite frankly, just the converse, when you have a case where they do video record them and there is no paragraph five, I’ve not let it in. So it’s just the opposite of that. I’m going to grant Mr. Sack’s motion to suppress. I do not think it would be fair.

I think it forces the defendant to testify.” The State also relies on another statement in the record where the trial court noted that if paragraph five were not on the Voluntary Statement form her ruling would have been different. We have reviewed the trial court’s comments and do not find that the trial court held that the defendant was entitled to have his statement electronically recorded. Instead, the trial court ruled that the police promised the defendant a video and audio recording of his statement in paragraph five of the Voluntary Statement form which the defendant signed.

The trial court properly found, without such a recording, the statement was not voluntarily given. The trial court also specifically held that in the absence of paragraph five its ruling would have been different. We find no error. C. Remaining Issues The State also argues that the trial court erred in ruling: (1) the completeness doctrine barred the defendant’s statement from being admitted into evidence; and (2) if Detective Etzel were allowed to testify without an audio recording of the defendant’s statement, it would force the defendant to testify.

We need not address these issues based upon our previous ruling that the defendant’s statement was not voluntarily given. The trial court properly granted the defendant’s motion to suppress. Accordingly, the judgment of the circuit court of Kankakee County is affirmed. Affirmed. O’BRIEN, J., concurs.