People v. Alfaro (386 Ill. App. 3d 271, 2008)

JUSTICE O’MALLEY

delivered the opinion of the court:

Following a jury trial before the circuit court of Kendall County, defendant, Marcelino Alfaro, Jr., was convicted of first degree murder (720 ILCS 5/9 — 1(a) (West 2004)) and obstructing justice (720 ILCS 5/31 — 4(a) (West 2004)) in the shooting death of Jorge Badillo. Defendant received concurrent prison sentences of 25 years for the murder conviction and 2 years for the obstructing-justice conviction. Defendant appeals, contending that the December 15, 2004, statements he made should be suppressed because they were elicited in violation of Miranda v. Arizona, 384 U.S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602 (1966); that his plea agreement should be reinstated because the State improperly repudiated the agreement; and that he received ineffective assistance of counsel because his trial attorneys, Brian Hiatt and Francis Weinert, failed to facilitate the plea agreement and failed to advise defendant to withdraw his plea of guilty to the obstructing-justice charge after the plea agreement was terminated. We agree with the suppression issue and vacate defendant’s convictions and remand for further proceedings.

I. BACKGROUND

We summarize the facts relevant to our consideration of defendant’s appeal. On December 4, 2004, at about 9 p.m., the body of the 16-year-old victim was discovered on a gravel road in rural Kendall County. The victim had been shot four times — three times in the head and once in the right shoulder. Two .22-caliber and two .45-caliber bullet casings were found at the scene.

The Kendall County sheriff’s police investigated the offense. Through their investigation, they learned that, on December 4, defendant, then 19 years of age, had been seen with the victim. On December 14, 2004, two detectives went to defendant’s place of employment, Eby-Brown in Montgomery. They met defendant as he was leaving his third-shift job and interviewed him in a conference room at Eby-Brown. The interview lasted for several hours. Defendant denied that he knew anything about the victim’s death.

Later in the day of December 14, 2004, detectives interviewed Isabel Ocon, a former girlfriend of defendant. Ocon provided a written statement to police. Ocon wrote that, on December 5, 2004, defendant had stopped by the store where she worked. Defendant told her that the victim was dead, but that the victim was supposed to have been only beaten up. Defendant also told Ocon that his job was to gain the victim’s trust so that others could beat him. The others, however, shot and killed the victim.

A. Defendant’s December 15, 2004, Videotaped Statement

Early in the morning of December 15, 2004, after having obtained Ocon’s statement, detectives again returned to Eby-Brown at the end of defendant’s shift. They asked defendant if he would come to the sheriff’s office for a videotaped informational interview. They represented that, after the interview, they would provide defendant with a ride to wherever defendant wished to be taken. Defendant agreed. Defendant was not handcuffed and was not told that he was under arrest. Defendant was not wearing a coat or jacket when he was taken to the sheriff’s office. (Defendant explained that he generally did not wear a jacket, even during the winter.) Defendant was questioned for more than three hours in an interview room at the sheriffs office. At the end of this time, Detective Joseph Jasnosz read defendant his Miranda rights, and a further interview with Assistant State’s Attorney Jean Fletcher occurred. During the course of these interviews, defendant gave several different versions of the events on December 4, eventually admitting that he was present when the victim was killed.

Beginning at about 7 a.m., Detective David Ratkovich interviewed defendant in the interview room. For the first 20 minutes, Ratkovich asked general background questions. Ratkovich then questioned defendant about his activities on December 4. Defendant told Ratkovich that he had been driving around with the victim during the afternoon and early evening of December 4. During this time, the victim purchased and used some cocaine from “Musto.” Later, defendant and the victim had an encounter with some Vice Lords. When the Vice Lords began to pursue them, the victim jumped out of the car and ran off between some houses and through the yards. Defendant did not know what happened after that, and defendant learned about the victim’s death a few days ago. A break was taken. Defendant left the interview room by himself to go to the restroom. Shortly after this, defendant returned by himself to the interview room and sat down. An officer, who was out of the camera’s range, talked to defendant about matters unrelated to the case.

Ratkovich returned to the interview room. He began this round of questioning with the phrase, “not to be accusatory,” and asked defendant a number of questions, like, “did you do this” and why would defendant be named as a suspect. At around the hour-and-a-half mark, Ratkovich confronted defendant and told him that the investigation showed that defendant had been present when the victim was killed. Ratkovich stated that defendant was not being truthful in his statement. Defendant then changed his story, telling Ratkovich that several guys in a Suburban pulled up and took the victim away to beat him. Ratkovich also admonished defendant that “it will [all] come down on you” if defendant persisted in refusing to tell police what happened. Defendant maintained that he did not know that the beating had turned into a shooting. Ratkovich told defendant that his story did not agree with the evidence the police had collected so far.

At around 1 hour and 50 minutes into the interview, Ratkovich left and was replaced by Jasnosz. Ratkovich explained to defendant that he had to attend to something else and that Jasnosz would question him for a while. Jasnosz indicated that the police believed that defendant had been with the victim at the scene of the killing. Jasnosz told defendant that he “was accountable for what has taken place” and that, even if he did not answer the questions, his problems and the investigation were “not going away.” Jasnosz then showed defendant a picture of an electric chair, telling defendant that he was in the same position as Scott Peterson, who had lied to the police. After Jasnosz spoke in this vein for about half an hour, defendant became more forthcoming. At about the 2-hour-and- 17-minute mark of the interview, Jasnosz said, “I don’t think you thought Jorge was going to die. You just thought Jorge would get a beating?” Defendant agreed. After this, defendant asked Jasnosz, “If I tell you who pulled the trigger, will you let me leave?” Defendant also asked, “My name never comes up?” Jasnosz replied, “If you are 100% truthful, I will be on the phone. You don’t have to leave. I’ll be on the phone with Aurora and the State’s Attorney’s Office and protect you.”

With this assurance, defendant described how “Musto,” a gang leader, ordered the victim’s beating. Defendant said that “Danny” and a “big guy,” who was unknown to defendant, got into defendant’s car with the victim. They told defendant to drive out to rural Kendall County. As defendant drove up to the scene of the offense, the “big guy” in the backseat began to punch or to pistol-whip the victim. Defendant skidded to a sudden stop, ending up partially in the ditch alongside the roadway. The victim jumped out of the car, and the scuffle continued. The victim tried to pull out a gun, and Danny shot him.

Defendant explained that the victim, who belonged to the Latin Kings, was supposed to get his “outs” from the gang, meaning a severe beating, as punishment for “flip-flopping,” or going back and forth between gangs. Defendant stated that he was a friend of one of the leaders of the Maniacs, so the Latin Kings thought defendant was a Maniac. When the victim was seen with defendant, the Latin Kings believed that the victim was flirting with the Maniacs.

At about 2V2 hours into the interview, Jasnosz asked defendant to “take five minutes and go over [the events] again.” Defendant substantially repeated his most recent narrative of the events leading to the victim’s shooting.

Defendant maintained that he did not know that the victim would be shot. Defendant identified a picture of Daniel Casas (Casas or Danny Casas) as the shooter, “Danny Culver.” At about 2 hours and 50 minutes into the interview, Jasnosz informed defendant that he had “criminal liability for being at the scene.” Jasnosz took away defendant’s shoes and socks, explaining that they needed to be examined for evidence, and left the room for about five minutes. Jasnosz returned and questioned defendant about the guns that were used and about his December 5, 2004, conversation with Ocon. At just past three hours into the interview and after answering these questions, defendant asked, “When can I leave? You’ve told me ‘a little bit,’ but I’ve been here since 7 a.m.” Jasnosz replied that “other things” were taking place that were outside of his control. At this point, Sergeant Koestner entered the room and told defendant that he was not under arrest and not in custody. Koestner asked defendant to stay a few more minutes. Defendant agreed but stated that he would not stay past 10:30 a.m. Defendant also complained that his feet were cold; eventually, an officer brought him a pair of slippers.

At 10:10 a.m., about 3 hours and 10 minutes into the interview, Jasnosz returned with Fletcher. Jasnosz told defendant that, “just for formality,” he had brought along “just a Miranda waiver.” Jasnosz read defendant his Miranda rights from the preprinted form and asked defendant to read and sign the form at the bottom. Defendant complied.

Defendant repeated to Fletcher the version he had just given Jasnosz. Defendant told Fletcher that he was scared when the victim and the other two were in his car, because he thought they were after him. Defendant maintained that he was not in a gang, but admitted that he used to hang out with some Latin Kings and that members of his family were in the Latin Kings. Defendant told Fletcher that he was afraid that the other two men at the shooting would find him and kill him. Defendant also told Fletcher that, several days after the victim’s death, someone stole his car. Defendant noted that the car actually belonged to Stephanie Beals, a former girlfriend and the mother of defendant’s child. When asked why he had agreed to speak to the police, defendant said it was because “you said you could protect me.” A short time later, defendant was informed that he was under arrest.

B. Defendant’s December 20, 2004, Videotaped Statement

On December 20, 2004, while in the custody of the sheriffs department, defendant agreed to give another videotaped interview with Jasnosz. During this interview, defendant was accompanied by counsel, Weinert. Additionally, defendant received Miranda warnings before giving his statement.

In the December 20, 2004, interview, defendant delivered another version of the events. Defendant stated that he and the other three were drunk and went out into rural Kendall County in order to shoot the victim’s Tech 22 gun. The others told defendant where to drive. Soon after the victim got out of the car, defendant heard a shot. Defendant saw the victim grab his head and then his left arm. Defendant believed that the victim somehow had shot himself. Then defendant saw Danny chasing the victim around the car. The victim ran across the road and then back toward the driver’s side of the car. Danny began to hit the victim with a gun, and defendant said, “What the hell are you doing?” By this time, the victim was on the ground. Danny went around the back of the car and picked up the victim’s Tech 22 gun. Danny stood over the victim and fired the weapon down at the victim. Danny got into the front passenger seat and told defendant, “drive.”

At this point in the December 20, 2004, interview, Jasnosz told defendant that the police knew that the fourth person in the car was Walter Pineda. Defendant said, softly, “I can’t say anything about that.” Jasnosz asked defendant if there could be some “real bad repercussions” if he talked about Pineda, and defendant agreed that that was the case. Defendant said that, after the shooting, Danny kept the guns. Defendant explained that Danny shot the victim to retaliate for the time when the victim and other Latin King gang members beat up Danny’s mother. In shooting the victim, Danny had gained revenge on the Latin Kings and earned “credibility” to join a different gang. Defendant denied that Musto, the gang leader who sold the victim cocaine, ordered the beating. Defendant said that, although the victim owed Musto money for the cocaine, Musto thought of the victim as a son.

Jasnosz showed defendant a picture of Pineda and said that there was evidence that Pineda was at the shooting. Defendant again stated that he could say nothing about Pineda because otherwise he would be in “way over [his] head.” Later during the interview, Jasnosz asked whether Pineda stayed in the car during the shooting. Defendant deflected the question, saying, “I can’t say anything about that.” At the end of the interview, Jasnosz told defendant and Weinert to “talk to your witnesses.”

C. Pretrial

Eventually, defendant was indicted with three counts of first degree murder and one count of obstructing justice. The obstruetingjustice count alleged that defendant destroyed physical evidence by cleaning the victim’s blood out of his car. Count I (first degree murder) was dismissed.

Defendant filed a motion to suppress the statements given to the police and the assistant State’s Attorney. At the suppression hearing, Jasnosz testified that, during the December 15, 2004, interview at the sheriff’s office, it would have been easy for defendant to leave the interview. Jasnosz explained that, while the police had information that defendant was at the scene of the killing, they had no specifics that made defendant a suspect rather than a witness. The trial court, Judge Wilson, reviewed the recordings of the December 15 interview before he ruled on the motion. The trial court noted:

“The initial interview by [D]etective Jasnosz, while in the beginning was clearly voluntary, progressed to a point where Miranda certainly should have been considered. However, the defendant, after having been given Miranda warnings, voluntarily waived his rights under Miranda, and voluntarily made statements which are admissible. The purposes of Miranda, and the cases consolidated and decided therewith addressing coercion, trickery, force, etc. to elicit involuntary statements by in-custody questioning of persons by law enforcement officials, was not present in this case.”

The trial court denied defendant’s motion to suppress.

D. Guilty Plea

On August 5, 2005, the parties reported to the trial court that they had reached a plea agreement. The State agreed to dismiss all of the first degree murder charges in exchange for defendant’s plea of guilty to the obstructing-justice count and his plea of guilty to a newly filed charge of second degree murder in case No. 05 — CF—253. Additionally, defendant agreed that he would “cooperate with law enforcement” and would “testify as necessary as directed by the Kendall County State’s Attorney’s Office in any trial regarding” the victim’s death. The trial court determined that defendant had knowingly and voluntarily decided to plead guilty and assured itself that a factual basis existed for the plea. The trial court immediately entered the convictions and set the matter for a sentencing hearing to occur in October.

On the day before the scheduled sentencing hearing, defendant agreed to make another videotaped statement to the State’s Attorney’s office. Fletcher conducted the interview; Ratkovich and Weinert were also present during the interview.

In this interview, Fletcher told defendant that she wanted him to tell her everything, starting from the beginning. This statement (the plea agreement statement) was similar to defendant’s December 20, 2004, statement. Defendant described that he and the victim had driven around for several hours, drinking and doing drugs while stopping at a number of locations. They picked up Danny during the course of their wanderings. Danny sat in the backseat, and the victim sat in the front. Defendant drove them to get the victim’s new gun, a Tech 22. The victim proposed that they go somewhere and shoot the gun.

Defendant drove to a rural spot. Danny and the victim got out of the car. When the victim bent down to cock his gun, defendant heard a gunshot and observed that the victim jumped up and grabbed his left elbow. Defendant then observed that the victim tried to run but Danny fired a handgun at him. Danny pistol-whipped the victim near the front driver’s-side door, and the victim collapsed to the ground. While the victim was on the ground, Danny grabbed the Tech 22 and used it to fire two more shots into the victim. Danny stripped off the victim’s bloody hoodie sweatshirt.

Defendant stated that Danny got back into the car and told him to drive to Sandra’s house. There, Danny dropped off the guns. Next, defendant and Danny picked up Pineda, and all three went to Lindsay’s house. The following day, defendant cleaned up the blood that was in his car, using Windex. Two days later, the car was reported stolen, having been taken from in front of defendant’s house.

Fletcher and Ratkovich left the interview briefly. When defendant and Weinert were alone in the interview room, Weinert reminded defendant that, in his previous statements, there had been three other people in his car when he reached the rural road. Defendant told Weinert that he could not say anything about that because “they’ll kill me.” Weinert suggested that defendant tell Fletcher that he was afraid, because Weinert was sure that the prosecutor would have questions about this version of the events.

Fletcher returned to the interview, immediately challenging defendant about the differences between his statement and the December 15, 2004, statement. Fletcher told defendant that she thought he was trying to protect Pineda, noting that Pineda had disappeared from the plea agreement statement. Fletcher reminded defendant that, in December, he had stated that the victim was supposed to receive a beating and that defendant had quickly pulled over to the side of the road. Defendant agreed that he pulled over to the side of the road, but explained that, in December, he made up the story that the victim was to be beaten. With regard to Pineda, defendant told Fletcher, “I can’t say anything about that.” Fletcher reminded defendant that he was scheduled to be sentenced the next day and that he had made a deal with the State’s Attorney’s office to tell the truth. Fletcher also noted that a hat with Pineda’s DNA had been recovered from the scene.

Defendant began to weep. He told Fletcher that Pineda had not touched the victim and that defendant needed to remain alive for his son’s sake. Fletcher asked, “What makes you think covering up for [Pineda] is going to protect you at all?” Fletcher and Ratkovich again left the room, parting with the admonition that this was defendant’s chance to tell them what happened.

After Fletcher and Ratkovich left, Weinert told defendant to be honest. When they returned, Fletcher asked defendant when Pineda first got into the car. Defendant explained that he picked up Pineda on the way to get the victim’s gun, because he mistrusted Danny. Defendant maintained that the victim sat in the front seat with him, while Danny and Pineda sat in the backseat. According to defendant, Pineda was in the Maniacs and had been incarcerated as a juvenile with defendant’s older brother. Danny was also a friend of defendant’s brother. Danny was carrying a gun when he got into defendant’s car. Defendant stated that he did not know that, at the time of the shooting, Danny had been given his “outs” from the Latin Kings and was no longer a member.

Defendant described how he swerved to a stop in the ditch alongside the rural road. Everybody smoked cigarettes, and the victim, Danny, and Pineda got out of the car. The victim got out of the car and into the grass in the ditch. Defendant just heard the first shot. He saw the victim run around the car and head across the street, then run back toward the car with his hands over his face. Danny knocked the victim down. Defendant thought that Pineda might have pushed Danny, and there was a fight with Pineda. Defendant explained that Danny shot the victim for revenge. Defendant stated that the victim was one of the Latin King “shorties” who had beaten up Danny’s mother.

Defendant stated that, after the shooting, Danny got into the front seat with the victim’s hoodie. There was a lot of blood in the car from the hoodie. Danny left the hoodie and the guns at Sandra’s house. Defendant went into Sandra’s house with Danny and Pineda. Defendant threw up in the bathroom, and Pineda told him to calm down. After that, the three went to Lindsay’s house. Defendant noted that he had planned to go to Lindsay’s house with the victim that evening.

Responding to further questioning, defendant stated that he did not know how the victim’s blood got into the backseat of his car. Defendant explained that there was blood on the front passenger floor mat, and Danny had blood on his face. Defendant noted that he got blood on his hands from the hoodie, and blood had seeped into his CD case.

Defendant demonstrated how Danny fired his gun at the victim and how Danny used the victim’s gun to fire some of the shots. Defendant explained that Musto was in charge of the “shorties” for the Latin Kings, and he gave the Tech 22 to the victim because the victim was Musto’s “right hand shorty.” When the interview concluded, defendant acknowledged that he would have to testify at the others’ trials.

On the day following the plea agreement interview, which day had been scheduled for defendant’s sentencing, the prosecutor requested a continuance because the plea agreement had not been completed yet. The prosecutor also informed the trial court that he needed some more time to further investigate. The trial court granted the continuance.

E. Motion to Reinstate Original Charges

On November 29, 2005, the State moved to reinstate the original first degree murder charges. The prosecutor also stated that defendant could move to withdraw his guilty plea. The motion to reinstate alleged that: (1) defendant’s attorneys canceled a September 29 interview by calling the State’s Attorney’s office a half-hour after the scheduled start; (2) defendant’s attorneys canceled an October 6 interview by calling the State’s Attorney’s office 20 minutes after the scheduled start; (3) defendant’s plea agreement statement was inconsistent with previous statements; (4) defendant refused to participate in an October 20 polygraph examination because his attorney was not present; and (5) defendant refused to participate in a November 8 polygraph examination because his attorney was not present, notwithstanding that the examination had been scheduled with the attorney.

The State attached Fletcher’s affidavit to its motion to reinstate. Fletcher averred that, on October 6, before the second attempt at interviewing defendant, she learned that defendant’s attorneys had not visited with him since at least mid-September. Before the October 12 plea agreement interview, Fletcher learned that defendant’s attorneys still had not visited defendant at the jail. Fletcher also averred that, for the second scheduled polygraph examination, despite previously arranging with defendant’s attorneys the date, time, and location, neither of defendant’s attorneys showed or left a message to explain their absence. Defendant refused to participate in the polygraph examination without the presence of his attorneys.

Defense counsel Hiatt requested leave to file a written response. The trial court allowed the request and ordered defense counsel to file a response on or before December 6, 2005. On December 9, 2005, defense counsel filed a response. Defense counsel attached what purported to be Weinert’s affidavit; the affidavit, however, was neither signed nor notarized. The response attempted to explain defense counsel’s absences, arguing that counsel’s scheduling conflicts should not be attributed to defendant and that the State’s charge that the plea agreement statement was not truthful was speculative. Defense counsel argued that the State was retaliating in moving to reinstate the charges. Counsel also argued that, because the State had nolprossed the original charges, it needed to file a new information or indictment.

At the hearing on the State’s motion to reinstate and defendant’s response, the State orally moved to strike defendant’s response because it was untimely and because the attached affidavit had not been signed or notarized. The State suggested that, if the trial court allowed defendant’s response to stand, an evidentiary hearing might be required. The State also pointed out the number of times defense counsel had canceled the scheduled interviews and not appeared for the polygraph examinations. The State characterized defendant as “unavailable” for the polygraph examinations, due to his refusal to participate in the absence of counsel.

Defense counsel responded that he had managed to obtain a sworn affidavit to attach to the response. The trial court granted the State’s oral motion to strike and refused to consider the untimely written response. The trial court did, however, grant leave to defense counsel to orally argue defendant’s position. Following argument, the trial court, Judge Wilson, ruled:

“Okay. Well, it’s pretty obvious what’s going on. As far as I’m concerned, I mean, it’s a two-way street. The State makes agreements and they are bound to them and there are many times when they’ve tried to be vacated and I’ve denied them. The State has stuck with the agreement and the defendant complies. I do remember part of the agreement was the defendant was going to assist the State in their investigation and cooperate. He pled guilty on August 5th of 2005 and I set the date for sentencing hearing for October 13th thinking all that could have been done by October 13th. It wasn’t. So it was continued again to November 29th. It’s more than 4 months ago since this agreement was entered and we’re still no further now than we were on August 5th and that’s not right, especially anybody that knows me and knows how I try to keep cases moving. It’s kind of like justice delayed is justice denied and that I’ve always tried to keep cases moving but just today is very indicative of what’s been going on.

There was an order entered on November 29th that the defendants [sic] are granted leave to file a response by December 6th, 2005. Defense doesn’t file it by December 6th. They file it on December 9th. In response to the affidavit filed by the State in support of their motion, the affidavit that’s filed with the [defendant’s] pleading is not signed, not notarized. This is December 13th. I don’t understand why a pleading would be filed, not signed, but even more indicative of that is that the case was scheduled for 1:00. The case was called. [Defendant] was brought out. He was standing here without his attorneys. I mean, it’s like I don’t understand why people can’t be in certain places and do things by certain times. This isn’t court when people feel like doing things or when they feel like showing up or when they feel like they’re going to cooperate or if they feel like doing what they want to do when they want to do it. That isn’t it. If that’s the way court’s going to be done, then my opinion is we destroy all court orders and just put somebody in a room in a robe and whenever lawyers show up or whenever pleadings get filed or whenever somebody wants to do something, just show up and we’ll put a judge there 24 hours a day just so we can be convenient to everybody else to show up if, as, and when they want to.

It seems very funny to me that the allegations that the State makes is because the defendant’s lawyers don’t show up. Well, they don’t show up for court, they don’t file their pleadings on time, and I’m sitting here now more than four months since all this stuff was supposed to be done. And if it sounds like I’m feeling frustration, it is. I don’t understand why I can’t get a sentencing hearing that I usually try to get done within 3 to 5 weeks. Now I’m over 4 months. I’m no further now than I was before, and in all fairness the State isn’t either because as part of — because the cooperation that was anticipated as part of the agreement isn’t done yet and I don’t know when this is going to be done. They’ve scheduled 2 or 3 of these polygraph — two I guess is what the argument was. Why do we have to schedule a third? I don’t even understand that. To me, one would be enough. But then even assuming one isn’t, two should be enough. When are we looking to schedule a third one? This is a rhetorical question and you don’t need to respond, but are you looking to do it next summer, next August, make it the one year anniversary date that we schedule it? I don’t agree. So the State’s motion is granted. Counts 2, 3 and 4 are reinstated and we’ll set the matter down then for a status date and set a trial date.”

Defense counsel asked the trial court if it would accept an oral motion to withdraw defendant’s plea of guilty to the second degree murder charge. The trial court refused and ordered defense counsel to file a written motion to withdraw the plea.

On January 24, 2006, defendant’s counsel filed a motion to withdraw the guilty plea to the second degree murder charge. Counsel told the trial court that defendant wanted to leave the plea of guilty to obstructing justice undisturbed. The trial court did not address defendant; a certificate pursuant to Supreme Court Rule 604(d) (210 Ill. 2d R. 604(d)) was not filed. The trial court granted the motion to withdraw the plea, stating that “apparently it did not work out the way the parties had agreed upon.”

F. Jury Trial

The matter proceeded to a jury trial before Judge William Weir. The State told the jury in its opening statement that the evidence would demonstrate that three people were responsible for the death of the victim. The jury would get to see and listen to a recording of the police interview of defendant in which he explained what happened. The jury would further learn that defendant had cleaned blood out of his car. Defendant’s counsel, Hiatt, countered in his opening statement that defendant was not out participating in gang activity, but was simply out with his friends, including the victim. Hiatt conceded that defendant had taken steps to “conceal or to minimize” his involvement by cleaning his car, but Hiatt noted that defendant had “accepted responsibility” for that conduct by pleading guilty to the charge of obstructing justice. Hiatt told the jury that fear of the other two men at the scene had motivated defendant to attempt to conceal his involvement.

Initially, the State recounted the December 4, 2004, discovery of the victim’s body in rural Kendall County. The State also provided medical evidence about the manner of the victim’s death. The testimony indicated that the victim had been shot four times — three times in the head and once in his torso. The torso wound was, by itself, a fatal wound, entering the victim’s right shoulder at a downward angle, passing through his lung, severing his aorta, and exiting out the left side of his back. The testimony also indicated that the victim had been beaten about the face and that his jaw had been shattered.

The State also presented testimony about the crime scene itself. The police photographed skid marks and tire impressions on the side of the roadway. Two .22-caliber shell casings and two .45-caliber shell casings were recovered from the scene. The presence of blood was detected at various spots along the road and in the grass along the ditch where the car had stopped. A blue hat was found a few feet away from the victim’s body.

Witnesses Christina and John Melton testified that, on December 4, 2004, at around 7 or 7:30 p.m., they were introduced to defendant and the victim when they visited Rhonda Westenfelt’s house. John identified a photograph of a silver Suzuki Forenza as the car he observed defendant and the victim arrive in that night. Lindsay Behrens testified that she was friends with defendant, Danny Casas, and Pineda. Behrens testified that they visited her house between 9:30 and 10 p.m., arriving in a silver car. Behrens testified that she observed no blood on them and no guns and did not think that they behaved unusually in any way.

Stephanie Beals, defendant’s former girlfriend and the mother of his son, testified that she owned the silver Forenza, but that she and defendant shared its use. Beals testified that, during the afternoon of December 4, 2004, she, defendant, and the victim had driven around to several different places. About a week after that day, she notified the police that her car had been stolen from in front of defendant’s home.

The State presented evidence that, on January 6, 2005, the car was discovered on a street in Aurora. It was then turned over to the Kendall County sheriff. A trooper from the state police, Monique Harms, examined the car, discovered several areas that potentially were stained with human blood, and collected evidence from those areas. Forensic scientists analyzed the swabs and samples Harms had collected. A forensic biologist testified that two areas on the front passenger floor mat tested positive for human blood. A DNA analyst testified that the floor mat samples yielded nothing that could be successfully analyzed. The biologist testified that a quarter- to half-dollar-sized spot on the backseat also tested positive for human blood. The DNA analyst testified that the sample yielded a positive result and that it matched the victim’s DNA profile. The DNA analyst testified that the blue hat also provided sufficient material to positively test. The results included a mixture of DNA from at least three people, but the major component of the mixture matched Pineda’s DNA profile.

Ocon testified that, on December 5, 2004, defendant had visited her where she worked and told her that the victim had died. Ocon testified that defendant told her that “they killed him,” but did not tell her who “they” were. Defendant also told her that they “were supposed to rough him around. That was it.” Defendant further told her that “they took it too far.” Ocon did not remember, but confirmed after being confronted with it, that she stated in her written statement to police that defendant told her that his job was to get close to the victim and gain his trust, and then they were going to jump him. On cross-examination, Ocon denied that defendant told her he knew that the victim was going to be shot. Defendant did not tell Ocon that he participated in what the other two passengers of the car had done. Defendant also did not tell Ocon that he cleaned blood from his car.

The State played a tape of a recorded phone conversation between defendant and an unidentified woman. Defendant told the woman that his car had been found. Defendant also told the woman that the floor of the car had been covered with blood and that he had to “scrub it good.”

Detectives Eberhardt, Ratkovieh, and Jasnosz all testified about their interviews with defendant. Jasnosz testified that, before he interviewed defendant on December 15, 2004, he had seen Ocon’s written statement and knew that defendant was one of the last people seen with the victim on the evening of his death. The State played for the jury a portion of the recording of the interview between Jasnosz and defendant. Following the playing of the recording, the parties stipulated that defendant pleaded guilty to obstructing justice, and the indictment was read to the jury. The State rested. The trial court denied defendant’s motion for a directed verdict. Defendant offered no witnesses on his behalf. The jury found defendant guilty of all charges.

G. Posttrial Proceedings

On May 25, 2006, at 1 p.m., defendant was scheduled to be sentenced. At that time, when the court attempted to begin the sentencing hearing, neither Hiatt nor Weinert was present. Defendant told the trial court that his attorneys had not returned his phone calls and that he filed a pro se motion seeking to discharge Hiatt and Weinert because they were refusing to help him. Defendant also told the trial court that, on May 19, 2006, he filed several pro se motions. One of defendant’s motions requested a new trial, due to ineffective assistance of counsel. That motion alleged that his plea agreement with the State had been lost due to counsel’s failure to comply with the terms of the plea agreement.

At about 1:30 p.m., Hiatt arrived in the courtroom. Hiatt explained to the trial court that he had been delayed by road construction. The trial court asked if both sides were ready to proceed with the sentencing hearing. Hiatt orally moved for a continuance, representing that he and Weinert had not been able to contact defendant’s family to discuss mitigation witnesses. The prosecutor objected, arguing that it had been six weeks since the end of the trial, sufficient time for defense counsel to have contacted defendant in the jail.

The trial court questioned defendant about his pro se motions. Defendant explained that he had filed them because he had not heard from his attorneys and he was concerned that, if he did not take action, he would miss the 30-day deadline in which to file posttrial motions. Defendant told the trial court that, after the trial, he had had only a single minute-long phone conversation with Weinert. Defendant also noted that neither attorney had visited him, and he told the trial court that he felt that he had been abandoned by his attorneys.

The trial court allowed Hiatt to respond. Hiatt explained that it was difficult for him to drive up from his main office in Kankakee to Yorkville. Hiatt also informed the trial court that he had actually already filed a posttrial motion for defendant. Hiatt disagreed that he and Weinert had abandoned defendant, and he asserted that defendant felt that way only due to having been found guilty. Hiatt also blamed defendant for losing the benefit of the plea agreement, asserting that “[i]t was not because of anything Mr. Weinert or I did. It was because [defendant] was disingenuous and not forthcoming with the State’s Attorney’s Office.”

The trial court noted that it was very concerned that Hiatt and Weinert had not met with defendant following the trial. The trial court further noted that Hiatt’s posttrial motion contained obvious errors on its face, leading the court to express its concern “about the apparent lack of attention being given to this serious matter by these attorneys.” The trial court continued the sentencing hearing and granted defendant’s pro se motion to discharge Hiatt and Weinert. The trial court appointed two attorneys from the public defender’s office to assist defendant with his posttrial motions and ordered that Hiatt and Weinert make themselves and their case files available to the public defenders and that they continue to attend every hearing in this matter. At about 2:05 p.m., Weinert entered the courtroom, and the trial court noted this for the record.

The newly appointed public defenders divided their tasks. John McAdams handled the posttrial motions. McAdams filed a posttrial motion seeking to arrest the judgment, to enforce the plea agreement, or, alternatively, to receive a new trial. During the arrest-of-judgment portion of the posttrial motion, counsel argued that the trial court, Judge Wilson, erred in allowing the State to reinstate the previously dismissed first degree murder charges without first vacating the dismissal or without filing a new charging instrument. The parties provided extensive argument, and both admitted that they could not find cases dealing with the reinstatement of charges after a plea agreement. The trial court reserved its ruling on the issue and allowed the parties to conduct further research.

For the part of the motion seeking to enforce the plea agreement, McAdams argued that an evidentiary hearing was needed because the trial court (Judge Wilson) had allowed the first degree murder charges to be reinstated without making a factual determination about whether defendant had breached the plea agreement. The trial court agreed that this portion of the motion presented the issue of who, if anyone, breached the plea agreement.

At the evidentiary hearing on the issue of enforcing the plea agreement, Fletcher, now a former prosecutor, testified about the October 2005 plea agreement statement. Fletcher testified that she did not believe that defendant told her the truth about the shooting. Defendant made no inculpatory statements in the October 2005 interview, other than to admit that he cleaned blood from his car. In the first portion of the interview, defendant also omitted all reference to Pineda or even a fourth person in the car with Danny Casas, the victim, and himself. After a break, Fletcher confronted defendant with the DNA evidence that demonstrated Pineda’s presence at the scene, and defendant eventually admitted that Pineda had been present. Fletcher also testified that other statements made in the interview were inconsistent with the evidence, such as where the victim and Casas were standing at the time of the shooting, where the victim ran, and where defendant stopped the car.

Ratkovich and Eberhardt testified about their roles in the investigation and interviews of defendant. Additionally, Melissa Barn-hart, the Kendall County State’s Attorney, testified that it was she who authorized the motion to reinstate the first degree murder charges. Barnhart testified that the parties did not draft a written plea agreement, and she acknowledged that the State had not attempted to obtain a “lock-out statement” before offering the deal. Barnhart testified that defendant had related a number of different versions of the events before the guilty plea. After the October 2005 interview, Barnhart attempted to schedule polygraph examinations of defendant because she did not know if he was telling the truth. Barn-hart testified that defendant agreed to take a polygraph examination, but he wanted his attorneys to be present. The polygraph examination never occurred because defendant’s attorneys did not show up for either appointment.

For the portion of the posttrial motion seeking a new trial, McAdams argued that Hiatt and Weinert had provided ineffective assistance in three main ways. First, they did not make it a priority to facilitate defendant’s plea agreement. Second, they did not follow the proper procedures or prepare for the State’s motion to reinstate the first degree murder charges. Last, they counseled defendant to keep his plea of guilty to obstructing justice intact.

The trial court eventually denied defendant’s posttrial motion. Regarding the first portion of the motion, disputing the procedure used to reinstate the first degree murder charges, the trial court ruled:

“This Court finds that the State’s dismissal of charges against [defendant] was conditional upon [defendant] testifying truthfully as to the facts of the alleged crimes and murder of [the victim] and that when the defendant breached his plea agreement by not testifying truthfully, the charges were lying dormant, *** and the charges could be properly reinstated.”

Regarding the second portion of the posttrial motion, whether defendant breached the plea agreement, the trial court adopted Fletcher’s testimony and noted specifically defendant’s initial omission of the presence of Pineda and defendant’s placing of Casas to the left of the victim as supporting the conclusion that defendant’s plea agreement statement conflicted with the physical evidence. The trial court held that defendant intentionally and knowingly breached his obligation under the plea agreement. With regard to the ineffectiveness claims, the trial court denied them without providing any analysis.

The matter proceeded immediately to the sentencing hearing. The State presented evidence, from a jailhouse informant fitted with a recording device, that defendant had threatened to kill Danny Casas and Detective Jasnosz while awaiting sentencing. Defendant presented several family members as witnesses in mitigation, all of whom commented on defendant’s character with the family. Further, the trial court considered the victim impact statement of the victim’s mother and defendant’s statement in allocution. The trial court sentenced defendant to a 25-year term of imprisonment for first degree murder and a concurrent 2-year term of imprisonment for obstructing justice. Defendant filed a timely notice of appeal.

After the notice of appeal had been filed, the trial court held a hearing on the public defender’s motion seeking reimbursement from Hiatt and Weinert for the fees the public defender’s office incurred after the trial. Hiatt did not appear before the trial court at the 10 a.m. scheduled start of the hearing, and the trial court issued a warrant for Hiatt’s arrest, noting that he had repeatedly violated the trial court’s orders. When Hiatt eventually arrived at about 11:10 a.m., the trial court informed him that it was going to forward the transcript of the hearing to the Attorney Registration and Disciplinary Commission (ARDC).

The trial court, after allowing testimony and hearing argument, concluded that it had no statutory authority to order Hiatt and Weinert to reimburse the public defender’s office for the expenses it incurred in the posttrial representation of defendant. The trial court was disturbed that Hiatt and Weinert did not visit defendant even once after the trial, and it found their conduct to be unprofessional and lacking diligence. The trial court held that the conduct of the attorneys following the appointment of the public defender to represent defendant, failing to attend each subsequent hearing, constituted contempt of court, and it fined Weinert $250 and Hiatt $500.

II. ANALYSIS

On appeal, defendant raises three issues. First, defendant argues that the trial court erred in failing to suppress the December 15, 2004, statements because they were elicited in violation of Miranda. Second, defendant argues that the plea agreement must be reinstated due to the State’s improper repudiation of the agreement. Last, defendant argues that Hiatt and Weinert provided ineffective assistance by failing to facilitate the plea agreement and not advising defendant to withdraw his plea of guilty to obstructing justice. We address each contention in turn.

A. Suppression of Statements

Defendant argues that the trial court erred in denying his motion to suppress statements. Defendant argues first that, for the portion of the interview before he was given Miranda warnings, he was nevertheless in custody, and the Miranda warnings should have been given to him. Defendant also contends that the police used an impermissible “question first, warn later” technique to elicit inculpatory statements from defendant. Defendant also argues that, even though he was given Miranda warnings before making another inculpatory statement to Fletcher, the warnings were insufficient to attenuate the taint of the improperly adduced statement to Jasnosz.

1. Standard of Review

Before addressing defendant’s substantive arguments, we must first consider our standard of review. A trial court’s ruling on a motion to suppress presents mixed questions of law and fact. People v. Gherna, 203 Ill. 2d 165, 175 (2003). A reviewing court will accord deference to the trial court’s factual findings, disturbing them only if they are against the manifest weight of the evidence. People v. Braggs, 209 Ill. 2d 492, 505 (2003). The ultimate question of whether suppression is warranted is reviewed de novo. Braggs, 209 Ill. 2d at 505; Gherna, 203 Ill. 2d at 175. Further, in reviewing the trial court’s ruling, a reviewing court may consider the entire record, including trial testimony. People v. Gilliam, 172 Ill. 2d 484, 501 (1996).

2. Violation of Miranda — Statements to Ratkovich and Jasnosz

As an initial matter, we note that the State asserts that the record is incomplete because the State introduced three digital video discs (DVDs) of defendant’s interviews, the trial court referred to the three DVDs in its letter ruling, and the same three DVDs do not appear in the record — only the DVDs that were used at trial and at post-trial hearings were submitted with the record. Because the record is not complete, according to the State, we must affirm on that basis. We disagree. We note that the State does not assert that the recordings contained in the record do not accurately portray all of defendant’s interviews with police. Further, the DVDs in the record were introduced at trial or at posttrial hearings, and we may consider the entire record in reviewing the trial court’s ruling on the motion to suppress. Gilliam, 172 Ill. 2d at 501. Accordingly, we hold that the record is sufficiently complete with the inclusion of the trial and post-trial DVDs, which depict defendant’s interviews with police, and we reject the State’s contention to the contrary.

Defendant’s initial contention is that his statements, particularly to Jasnosz, were made in a custodial setting that required the police to give him Miranda warnings. Defendant argues that, because Miranda warnings were not given to him until Fletcher interviewed him, the statements made to Ratkovich and Jasnosz were elicited in violation of Miranda and should be suppressed.

Defendant’s initial challenge centers on the question of when he was in custody for the purposes of Miranda. This determination involves two discrete inquiries: the first is to determine what were the circumstances surrounding the questioning, and the second is to determine whether, given those circumstances, a reasonable person would have felt that he or she could not terminate the interview and leave. Braggs, 209 Ill. 2d at 505-06.

When looking at the circumstances surrounding an interrogation, a court will consider the following relevant factors in determining whether the statement was made in a custodial setting: “the location, time, length, mood, and mode of the interrogation, the number of police officers present, the presence or absence of the family and friends of the accused, any indicia of formal arrest, and the age, intelligence, and mental makeup of the accused.” Braggs, 209 Ill. 2d at 506. The subjective thoughts of the police or the individual being questioned are generally irrelevant unless the officer’s belief that the individual is a suspect is communicated in some manner to him or her, in which case it becomes relevant to the extent it would affect how a reasonable person in the position of the individual would have gauged his or her freedom to terminate the interview and leave. Braggs, 209 Ill. 2d at 506-07. Additionally, if the officer is aware of unique traits of the individual that make him or her particularly vulnerable to the idea that he or she is in custody, and if the officer exploits them in questioning, then that too is a relevant factor in determining whether the individual is in custody for the purposes of Miranda. Braggs, 209 Ill. 2d at 506-07. We also note that the changing tenor of the interrogation may shift a voluntary encounter into a custodial one. See People v. Carroll, 318 Ill. App. 3d 135, 138-39 (2001) (the defendant voluntarily accompanied police for questioning, but the change from inquisitive to accusative questioning factored into the determination that the defendant was in custody for purposes of Miranda); People v. Savory, 105 Ill. App. 3d 1023, 1029 (1982) (the defendant was interviewed several times with the final interview being deemed custodial due to the change from inquisitive questioning to accusative questioning with the police contradicting and discounting the defendant’s explanations).

a. Factual circumstances

With these principles in mind, we turn first to the circumstances of defendant’s interrogation. On December 15, 2004, defendant was intercepted by police as he was leaving work for the day. Ratkovich and Eberhardt asked defendant to come with them to the sheriff’s office to undergo further questioning about the victim’s death, which questioning would be recorded. Defendant agreed. He was dependent upon the police to take him to the sheriff’s office and to return him to his home. There is no indication, however, that he was restrained or manhandled in any way as he was taken first to the unmarked vehicle and then to the sheriffs office.

The recording of the interview shows that, once at the sheriffs office, defendant was installed in an interview room — a small room about eight feet square, with a window, a table, and three chairs. The interview room was on the second floor, about 50 feet from the front entrance. The officers testified that no keys were needed to open any doors between the interview room and the main doors of the office, although defendant would have needed to traverse stairs and the lobby in order to leave the sheriff’s office. Defendant was interviewed by two police officers, but only one at a time. Defendant sat in the chair nearest the door, which was closed during questioning, and the interviewing officer sat in the chair nearest the window; the third chair was not visible on the recording. From time to time during the interview, an officer would knock at the door to the interview room, and the interviewing officer would open the door, receive whatever material was being offered, and return to the interrogation, closing the door.

The police offered defendant several breaks. At the first break, which occurred about an hour into the interrogation, defendant was apparently allowed to leave the room by himself and to use the restroom. However, the field of view of the camera recording the interview did not extend beyond the door to the interview room, so there is no way to see whether, once defendant exited the interview room, he was escorted to the restroom. When defendant returned to the interview room after the break, the door remained open and he was engaged by another officer, possibly Eberhardt, who talked with defendant about matters unrelated to the police investigation. By contrast, during any subsequent breaks, defendant would be left alone in the interview room (we note that defendant made no further requests to use the restroom), the door was shut, and defendant remained under observation. There was no testimony about whether the interview room door was locked at any time.

The interview commenced at about 7 a.m., after defendant had worked his overnight shift at Eby-Brown. Ratkovich was first to question defendant. For the first 15 or 20 minutes of the interview, Ratkovich went over defendant’s background information, like his education (he was home-schooled) and his family. After the first portion of the interview until the break was taken, Ratkovich asked defendant to tell him what happened on the day of December 4, when the victim was killed.

After about one hour, the Ratkovich portion of the interview took a decidedly different tone from the relatively friendly and nonconfrontational first hour. Ratkovich began by telling defendant that he had to ask him some questions like, did you do this, and why would you be named as a suspect. After being asked this series of questions, defendant lost his composure and stated that he was afraid that “they” would come at him. Defendant explained to Ratkovich that a young cousin of his had been killed when people were attempting to kill his uncle. The first break was taken.

When the interview resumed, at about the l-hour-and-25-minute mark, Ratkovich confronted defendant with discrepancies in his story and told him that the police possessed evidence that showed that defendant had been at the scene of the victim’s killing. Ratkovich also told defendant to tell him what actually happened, “or it will [all] come down on you.” Defendant persisted in his story that he and the victim encountered rival gang members. Ratkovich told defendant that he was not being truthful and that his story did not add up.

A second break was taken and Jasnosz took over the interrogation at about the l-hour-and-50-minute mark. Jasnosz started by telling defendant that he was accountable for what happened to the victim. Additionally, Jasnosz showed defendant a picture of the electric chair and told defendant that he was facing it if some prosecutor wanted to make headlines. Jasnosz also likened defendant’s situation to that of Scott Peterson, who had been convicted, according to Jasnosz, solely on the basis that his lies to police were exposed. Jasnosz also told defendant that he should be more afraid of what could happen to him as a result of the interrogation than of what anyone else involved in the victim’s death could do to him.

Beginning at about the 2-hour-and-20-minute mark of the interview, defendant began to tell what had happened. At about 2 hours and 30 minutes into the interview, Jasnosz asked defendant to go over the story again. At about 2 hours and 40 minutes into the interview, defendant told Jasnosz that his job had been to wait in the car while the victim was beaten by Danny and “Muscles” (Pineda), whom he denied knowing. After defendant finished recounting his story, at about 2 hours and 52 minutes into the interview, Jasnosz remarked that defendant had “criminal liability” for what had occurred. Jasnosz then confiscated defendant’s shoes and socks. At about 2 hours and 56 minutes into the interview, Jasnosz returned and resumed questioning defendant, this time about the guns used and about his conversation with Ocon. Defendant asked when he could leave. Jasnosz put him off, saying that “other things” were happening that were beyond Jasnosz’s control. Additionally, Koestner popped into the room and told defendant that he was not under arrest and asked him to stay just a bit longer. Defendant reluctantly agreed, claiming that he would not stay past 10:30.

Another break was taken while Jasnosz took away defendant’s socks and shoes. The door to the room remained closed and defendant put his head down. At about 3 hours and 7 minutes into the interview, Jasnosz returned with Fletcher and told defendant that, “just for formality,” because it had not been done earlier, he would go over the Miranda warnings with defendant. At this point, defendant was read the Miranda form and he signed it, indicating that he would waive his rights.

b. Application of law

As noted above, the analysis of whether a defendant is in custody for purposes of Miranda proceeds in two steps. First, the court should consider all of the circumstances surrounding the questioning. Braggs, 209 Ill. 2d at 506. The relevant factors bearing on the custodial status of the defendant include “the location, time, length, mood, and mode of the interrogation, the number of police officers present, the presence or absence of the family and friends of the accused, any indicia of formal arrest, and the age, intelligence, and mental makeup of the accused.” Braggs, 209 Ill. 2d at 506. After ascertaining the circumstances, the court must then ask whether, given those circumstances, a reasonable person would have felt that he or she could not terminate the interview and leave. Braggs, 209 Ill. 2d at 506.

The factors of location, time, length, mood, and mode of the