author: JUSTICE McNAMARA

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. STEVEN AVERY et al., Defendants-Appellants.
    First District (3rd Division)
    No. 1—86—2418
    Opinion filed February 15, 1989.

      Randolph Stone, Public Defender, of Chicago (Hugh Stevens, Assistant Public Defender, of counsel), for appellants.
    Richard M. Daley, State’s Attorney, of Chicago (Inge Fryklund, Patricia Y. Brown, and Lauren E. Brown, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE McNAMARA

delivered the opinion of the court:

Defendants Steven Avery and Ramsey Lewis were found guilty of murder following a bench trial. The trial court sentenced Avery to a term of 20 years’ imprisonment and sentenced Lewis to a term of 23 years’ imprisonment. Defendants appeal, contending that the trial court erred in not suppressing their confessions after finding they were arrested without probable cause and that they were not proved accountable for the murder beyond a reasonable doubt.

Nathaniel Corley, a 16-year-old, was shot and killed at 2:15 a.m. on March 3, 1985. Defendants were subsequently charged along with Tracy Stofer. Avery and Lewis accused Stofer of shooting Corley, and Stofer countered that he drove the car and either Lewis or Avery shot Corley. Stofer’s motion for severance was granted. (Stofer was also convicted, and this court has reversed that conviction and remanded for further proceedings. People v. Stofer (1989), 180 Ill. App. 3d 158.)

A joint hearing was held on the three codefendants’ motions to suppress their statements made to the police. After the initial hearing, the trial court ruled that defendants were not under arrest when they were first taken to the police station for questioning. After two to four hours at the station, defendants were placed under arrest, but without probable cause. After a second hearing, the trial court concluded that the few hours between the illegal arrest without probable cause and the first inculpatory statement by Lewis, when probable cause to arrest arose, were sufficient to purge any taint. Thus, the motions to suppress defendants’ statements were denied.

At the hearing on the motions to suppress, Stofer testified that on March 3, 1985, at 11 a.m., the police arrived at his home and took him down to the station to question him about the murder. Stofer told the officers that he had been at a party with Lewis and Avery the previous night.

Officers Barry Costello and John Yucaitas testified about the investigation and arrests. The shooting occurred at 2:15 a.m. The victim’s mother informed Yucaitas of the names of Corley’s friends. At 9 a.m., three of those friends, Eric Tate, Harry Elligan, and Tony Flem-ming, were brought to headquarters for questioning. They were separated. Tate told Yucaitas that on the night of the murder, the victim had told Tate, “Watch your back. Someone might shoot you.” Tate and the victim left a dance and walked to McDonald’s. At the dance, at McDonald’s, and at a friend’s house later, Tate saw three males in a gray, two-door Ford Escort hatchback, with papers in the window indicating the car was new. The car drove very slowly and appeared to be following them. Elligan told Yucaitas that he last saw the victim on Elligan’s front porch at 2 a.m., talking with Elligan’s cousin. Yucaitas gave this information to Dignan and Costello, who took over the investigation at about 10 a.m.

Dignan testified that on that day he and Costello interviewed Flemming. Flemming said that on the night before the March 3 murder, he and the victim were accosted by two black males. Flemming said he would try to find out their names. Flemming telephoned within an hour to report that he and a friend had looked through the high school yearbook. They identified Stofer as one of the males who had chased them with a pole the night before the shooting.

Dignan and Costello went to Stofer’s home, where they saw a gray Ford matching the description given by Tate. The officers took Stofer to the station for questioning. Stofer told the police that he had nothing to do with the murder and did not know Corley. On the previous night he had been driving around in the gray Ford hatchback along with Thomas Leatherwood and defendants. The officers left to find defendants.

At 1 p.m., Dignan and Costello went to Lewis’ home, and a boy on the street pointed out where Lewis was standing on a porch. The officers told Lewis they wanted to talk to him about Corley’s shooting. He agreed to go to the police station, where they spoke with Lewis in an interview room. Lewis informed the police that he and Stofer had been at a party and then drove around in the Ford until about 1:30 a.m. The officer told Lewis that Stofer gave a different version which mentioned other boys. Lewis agreed that Avery and Leatherwood were with them. The officers told Lewis “that we wanted to talk with Steven Avery, and we. told him we’d get back to him.” Lewis was left in the interview room with the door open. He was not told he could leave, or that he should remain, and was not handcuffed.

At 3 p.m., Dignan and Costello found Avery at his home. The officers told Avery’s mother they were investigating the Corley shooting and that Stofer and Lewis were at the station, and they wanted to talk to Avery about the previous night’s events. At the station, Avery told the police that on the previous night he was driven home at about 11:30 p.m. by Stofer, and he then went to bed. The officers told Avery that his friends reported a completely different story. Avery denied being with Leatherwood or Lewis.

At that time, about 5 p.m., all three codefendants were placed under arrest and given their Miranda rights for the first time. Prior to that, they had not been booked or processed in any way. The officers then spoke to defendants several times after the arrests. At one point, Avery began crying and stated that he was fearful of being killed if he spoke about the murder. At about 7 p.m., Lewis made statements incriminating the three codefendants.

At 8 p.m., Costello returned to Stofer and stated that defendants accused Stofer of shooting Corley. Stofer stated that he saw the victim on the street and defendants exited Stofer’s car and confronted Corley. Stofer exited the car, heard several shots, and then they all returned to the car. Avery or Lewis later threw the gun out the window.

At 9:45 p.m., a formal court-reported statement was taken from Lewis. At 10:17 p.m., Avery’s statement was taken. At 11:03 p.m., Stofer’s formal statement was taken.

Dignan admitted that a progress report stated Lewis was arrested at 1 p.m. at his home address. The progress report stated that Avery was arrested at 3 p.m. near his home address. Dignan explained that those were the times and locations where defendants were “taken into our custody.”

The trial court held that there was no arrest when Avery was picked up, Avery at his home and Lewis on the street. The court relied on several factors as indications that the police did not manifest an intent to arrest defendants when they asked them to come to the station. The court pointed out that the police did not search defendants, handcuff them, give them Miranda rights, fingerprint them, or photograph them. The court found, however, that the station house arrest at 5 p.m. was without probable cause.

At a separate attenuation hearing, Dignan testified that after the three codefendants gave conflicting stories, they were arrested. Subsequently, he spoke with Avery, who began crying. Avery said, “I knew this would happen. If I tell you, they will kill me.” Dignan informed Costello that Avery was upset, and Avery was then taken downstairs to the lockup to give him time to compose himself. After Avery was fingerprinted and photographed, Dignan took him back to the interview room.

Costello then informed Dignan that Lewis reported he had participated in Corley’s murder and that Stofer and Avery had gotten out of the car and shot and killed Corley. Costello showed Dignan handwritten notes signed by Lewis. Dignan then returned to Avery. He gave Avery his Miranda rights and then showed Avery the statement signed by Lewis.

Avery stated to Dignan that the three codefendants followed Cor-ley around the neighborhood during the night of the shooting. They located Corley. Avery first said that Stofer and Lewis got out of the car alone and he remained behind. He heard gunshots and Lewis and Stofer returned to the car. Stofer said, “I think I got him.”

Avery then said, “Wait a minute. I want to tell you the truth. I don’t want to lie. Lewis Ramsey [sic] was not telling the whole truth. We all got out of the car, all three of us.” They caught up with the victim by a viaduct. Stofer pulled out a gun. Corley looked at Stofer, raised his hands and said, “No, wait a minute. Wait a minute. Hold on.” Avery began to turn around and looked back and saw Stofer fire four times. They ran back to the car, and Stofer said, “I think I got him.” Avery stated further that he did not know Corley had a gun.

Costello returned to talk with Lewis and confronted him with Avery’s latest statement. Lewis agreed that all three men got out of the car and confronted the victim, and that Stofer had shot and killed Corley.

Costello then returned to Stofer and confronted him with defendants’ statements. Stofer stated that they approached Corley by the viaduct and saw him reach into his pocket. Stofer then heard shots coming from both sides. They ran back to the car and at some point either Lewis or Avery threw the gun out the passenger’s window. Subsequently, all three codefendants gave court-reported statements to an assistant State’s Attorney.

The trial court determined that sufficient intervening factors occurred to purge the statements of the taint of the illegal arrests.

At trial, Tate testified that on March 2, 1985, he spent the evening with the victim, Flemming and Elligan. At several places he saw a new gray Ford Escort with three people in the car. Dignan and Costello testified as to the statements made by the codefendants to the police.

Lewis testified that his statement was true but incomplete. They had been drinking, and Lewis did not know there was a gun in the car. He assumed they were just going to fight the victim. He followed Avery and Stofer out of the car because he was curious. He saw Sto-fer take something from under the seat and put it in his belt, but he did not know what it was. When Stofer started shooting, Lewis turned and ran with Avery.

Defendants contend that their confessions resulted from illegal arrests, and therefore, should have been suppressed at trial. The State counters that defendants voluntarily agreed to accompany the police officers in order to help with their investigation, and therefore, no arrest occurred; that the arrest at 5 p.m. was supported by probable cause; and that even if the arrests were illegal, the confessions need not be suppressed where the taint was sufficiently purged by intervening circumstances.

We hold that the trial court erred in finding that no arrest occurred when defendants were first taken into custody for questioning.

An arrest occurs when the police inform defendant of a violation, defendant submits to their control, and it is clear that the police intend to arrest defendant and that defendant understands he is being arrested. (People v. Holloway (1985), 131 Ill. App. 3d 290, 475 N.E.2d 915.) The fourth amendment provides that all persons are protected against unreasonable searches and seizures. When no “seizure” occurs, no fourth amendment rights have been infringed. Florida v. Royer (1983), 460 U.S. 491, 75 L. Ed. 2d 229, 103 S. Ct. 1319.

The test for whether a person has been seized within the meaning of the fourth amendment is whether, in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave. (Michigan v. Chesternut (1988), 486 U.S. 567, 100 L. Ed. 2d 565, 108 S. Ct. 1975; People v. Wipfler (1977), 68 Ill. 2d 158, 368 N.E.2d 870.) The test is intentionally imprecise because it focuses on the coercive effect of police conduct taken as a whole, and not on each particular detail of the police conduct in isolation. Michigan v. Chesternut (1988), 486 U.S. 567, 100 L. Ed. 2d 565, 108 S. Ct. 1975.

The police may not detain suspects for station house questioning absent probable cause to arrest. (Dunaway v. New York (1979), 442 U.S. 200, 60 L. Ed. 2d 824, 99 S. Ct. 2248.) In Dunaway, the teenage defendant was taken from his home in a police car to the station and was not informed he was free to leave. The Court found it was a custodial interrogation which required probable cause, despite the absence of the “trappings of a technical formal arrest.” Dunaway, 442 U.S. at 215-16, 60 L. Ed. 2d at 838, 99 S. Ct. at 2258. See also People v. Sturdivant (1981), 99 Ill. App. 3d 370, 425 N.E.2d 1046 (defendant effectively under arrest where he accompanied police to station and he was questioned over a 12-hour period).

Similarly, the police located defendants at or near their homes and brought them to the station for interrogation about their involvement in the murder. Dignan testified defendants were “taken into custody” at that time. The arrest reports show that 1 p.m. and 3 p.m. and defendants’ home addresses were the times and places of arrest.

At the station, defendants were not told they were free to leave. They could reasonably believe they could not leave, especially when each defendant was left in an interrogation room and simply told the officers would “get back to him.” This added to a reasonable belief that they were under arrest. See Dunaway v. New York, 442 U.S. 200, 60 L. Ed. 2d 824, 99 S. Ct. 2248; Florida v. Royer, 460 U.S. 491, 75 L. Ed. 2d 229, 103 S. Ct. 1319; People v. Townes (1982), 91 Ill. 2d 32, 435 N.E.2d 103; People v. Fitzpatrick (1982), 107 Ill. App. 3d 876, 438 N.E.2d 222; People v. McMahon (1980), 83 Ill. App. 3d 137, 403 N.E.2d 781.

Defendants were kept in interrogation rooms for 8 and 10 hours. They were left alone for hours at a time. In the meantime, the officers continued the investigatory process. Defendants were questioned intermittently until they finally made inculpatory statements.

Moreover, the officers’ subjective belief that defendants were free to leave is not determinative where it was not communicated to defendants. United States v. Mendenhall (1983), 446 U.S. 544, 64 L. Ed. 2d 497, 100 S. Ct. 1870; People v. Hardway (1987), 163 Ill. App. 3d 596, 516 N.E.2d 830; People v. Fitzpatrick (1982), 107 Ill. App. 3d 876.

We hold that the trial court erred in finding that no arrest occurred when defendants were first taken to the police station. The show of official authority was such that a reasonable person would not have believed he was free to leave. (Michigan v. Chesternut, 486 U.S. 567, 100 L. Ed. 2d 565, 108 S. Ct. 1975; United States v. Men-denhall, 446 U.S. 544, 84 L. Ed. 2d 497, 100 S. Ct. 1870.) Consequently, any evidence resulting from the statements defendants made to the police would be inadmissible.

The trial court properly found, however, that there was no probable cause to arrest defendants at 5 p.m. Probable cause to arrest exists where the facts and circumstances within the officers’ knowledge and of which they had reasonably trustworthy information are sufficient to warrant a person of reasonable caution in the belief that a crime has been committed by the person being arrested. Dunaway v. New York, 442 U.S. 200, 80 L. Ed. 2d 824, 99 S. Ct. 2248.

At 5 p.m., the police knew only that defendants had been riding in a certain gray car the previous night and that defendants differed as to who accompanied Stofer on the night of the crime. This is insufficient to establish probable cause to arrest defendants for murder. None of the three codefendants confessed to any knowledge of, or participation in, the murder. It was not until Lewis implicated all three boys that probable cause arose. (See People v. McGhee (1987), 154 Ill. App. 3d 232, 507 N.E.2d 33.) We agree with the trial court that there was no probable cause to arrest defendants at 5 p.m. (See People v. Nash (1979), 78 Ill. App. 3d 172, 397 N.E.2d 480.) Consequently, there was no probable cause to arrest defendants at 1 p.m. or 3 p.m.

The determination that an illegal arrest has occurred is not dispositive of the issue of the admissibility of a subsequent confession. The relevant inquiry is whether the confession was obtained by exploitation of the illegality of his arrest. (Brown v. Illinois (1975), 422 U.S. 590, 45 L. Ed. 2d 416, 95 S. Ct. 2254.) The evidence need not be suppressed if it was obtained by means sufficiently distinguishable to be purged of the primary taint. People v. White (1987), 117 Ill. 2d 194, 512 N.E.2d 677, quoting Wong Sun v. United States (1963), 371 U.S. 471, 487-89, 9 L. Ed. 2d 441, 455-56, 83 S. Ct. 407, 417-18.

The threshold requirement for fourth amendment analysis is whether or not the proper Miranda warnings were given. Where the fifth amendment has been violated, the fourth amendment issue need not be reached. (Dunaway v. New York, 442 U.S. 200, 60 L. Ed. 2d 824, 99 S. Ct. 2248.) Defendants were not given their Miranda rights at the time of their 1 p.m. or 3 p.m. arrests, but were given those rights at 5 p.m. There is no contention that the statements were otherwise involuntary. See People v. Ealy (1986), 146 Ill. App. 3d 557, 497 N.E.2d 101.

Beyond the threshold requirement of voluntariness, our analysis focuses on the causal connection between the illegality and the confessions. (Brown v. Illinois, 422 U.S. 590, 45 L. Ed. 2d 416, 95 S. Ct. 2254.) The Court in Brown identified several factors as particularly important to evaluate the admissibility of confessions obtained after illegal arrests. These factors are the temporal proximity of the arrest and the confession, the presence of intervening circumstances, and, particularly, the purposefulness and flagrancy of the official misconduct. (Brown v. Illinois, 422 U.S. 590, 45 L. Ed. 2d 416, 95 S. Ct. 2254.) The burden of showing admissibility rests upon the State. Brown v. Illinois, 422 U.S. 590, 45 L. Ed. 2d 416, 95 S. Ct. 2254.

The temporal proximity here between Lewis’ 7 p.m. confession implicating all three defendants, and Lewis’ 1 p.m. and Avery’s 3 p.m. arrest was six and four hours, respectively. Considering the surrounding circumstances of the investigatory, custodial interrogation, these time periods were insufficient to attenuate the illegal arrest. See People v. Stofer (1989), 180 Ill. App. 3d 158.

In attempting to establish attenuation, the State argues that intervening circumstances occurred when each defendant was confronted with his companions’ statements. The confrontation of an arrestee with untainted evidence may constitute an independent intervening circumstance. (In re R.S. (1981), 93 Ill. App. 3d 941, 418 N.E.2d 195.) Confrontation with incriminating evidence purges the taint of an illegal arrest, however, only where the evidence itself is not a product of the illegal arrest. (Taylor v. Alabama (1982), 457 U.S. 687, 73 L. Ed. 2d 314, 102 S. Ct. 2664; People v. Franklin (1987), 115 Ill. 2d 328, 504 N.E.2d 80; People v. Thomas (1984), 123 Ill. App. 3d 857, 463 N.E.2d 832; People v. Nash (1979), 78 Ill. App. 3d 172, 397 N.E.2d 480. Defendants’ statements were extracted after being confronted with their codefendants’ statements. Avery and Lewis were arrested, however, as a result of Stofer’s illegal arrest.

The court in State v. Winegar (1985), 147 Ariz. 440, 711 P.2d 579, rejected the State’s argument that intervening circumstances were present because a codefendant’s statement was presented to defendant at some point between defendant’s illegal arrest and his confession. The court found that the confrontation with the codefendant’s statement was itself the result of defendant’s illegal arrest and could not intervene to purge the taint of the arrest. (State v. Winegar, 147 Ariz. at 449, 711 P.2d at 588.) We agree with this holding. Confronting defendants with statements from each other and Stofer, all of whom were illegally arrested, did not constitute an intervening event which purged the taint of the illegal arrests. Cf., e.g., People v. Gabbard (1979), 78 Ill. 2d 88, 398 N.E.2d 574; People v. Lekas (1987), 155 Ill. App. 3d 391, 508 N.E.2d 221; People v. Malloy (1982), 104 Ill. App. 3d 605, 432 N.E.2d 1291; People v. Tankson (1980), 92 Ill. App. 3d 328, 415 N.E.2d 1218.

The final factor to be considered under Brown is the purposefulness and flagrancy of the official misconduct. An arrest has a quality of purposefulness where, e.g., it is an expedition for evidence admittedly undertaken in the hope that something might turn up. (See, e.g., Taylor v. Alabama, 457 U.S. 687, 73 L. Ed. 2d 314, 102 S. Ct. 2664; Dunaway v. New York, 442 U.S. 200, 60 L. Ed. 2d 824, 99 S. Ct. 2248; Brown v. Illinois, 422 U.S. 590, 45 L. Ed. 2d 416, 95 S. Ct. 2254.) The purpose of suppressing evidence obtained as a result of police conduct which is purposeful and flagrant is to prevent similar conduct on the part of the police in the future and to deny them any benefit from such conduct. People v. Dortch (1982), 109 Ill. App. 3d 761, 441 N.E.2d 100.

Here, the police conducted themselves in such a manner that demonstrates they were questioning many people in the hope something would turn up. Throughout the investigatory process, the police repeatedly “rounded up” teenagers in the area to attempt to gather any potentially relevant information. We find the taint emanating from the illegal arrests was not dissipated or attenuated.

We conclude that the trial court’s determination of attenuation is contrary to the manifest weight of the evidence. (See People v. Lekas, 155 Ill. App. 3d 391, 508 N.E.2d 221; People v. Davis (1980), 86 Ill. App. 3d 557, 407 N.E.2d 1109.) The court erred in admitting the confessions on the basis that there was sufficient attenuation between the illegal arrest and the confessions. We therefore remand for further proceedings, where the confessions must be suppressed.

Because we reverse the conviction for trial error, we must decide whether the evidence at the first trial was sufficient to sustain the conviction. (People v. Brooks (1987), 115 Ill. 2d 510, 505 N.E.2d 336; People v. Taylor (1979), 76 Ill. 2d 289, 391 N.E.2d 366; People v. Massie (1985), 137 Ill. App. 3d 723, 484 N.E.2d 1213.) Double jeopardy is not a bar where, as here, reversal is the result of trial error. Burks v. United States (1978), 437 U.S. 1, 57 L. Ed. 2d 1, 98 S. Ct. 2141. See also People v. Stofer, 180 Ill. App. 3d 158 (and cases cited therein).

Retrial is permitted even where the evidence remaining after discounting the erroneously admitted evidence is insufficient to sustain a verdict. (Lockhart v. Nelson (1988), 488 U.S. _, 102 L. Ed. 2d 265, 109 S. Ct. 285.) A reversal based on trial errors such as the incorrect receipt of evidence implies nothing with respect to defendant’s guilt, but merely determines that he was convicted through a judicial process which is defective in some fundamental respect. (Lockhart v. Nelson, 488 U.S. at_n.8, 102 L. Ed. 2d at 274 n.8, 109 S. Ct. at 291 n.8, citing United States v. Tranowski (7th Cir. 1983), 702 F.2d 668, and People v. Taylor (1979), 76 Ill. 2d 289, 391 N.E.2d 366. See also People v. Stofer, 180 Ill. App. 3d 158 (and cases cited therein).) All evidence submitted at the original trial may be considered in determining the sufficiency question for double jeopardy purposes. Lockhart v. Nelson, 488 U.S._, 102 L. Ed. 2d 265, 109 S. Ct. 285; People v. Stofer, 180 Ill. App. 3d 158 (and cases cited therein).

In People v. Taylor, the conviction was reversed because the confession should have been suppressed. The court first found it was error for the appellate court not to reach the question of whether the evidence adduced at trial was sufficient to sustain defendant’s conviction for armed robbery. (Accord People v. Brooks, 115 Ill. 2d 510, 505 N.E.2d 336.) The court instructed the appellate court to review all the evidence introduced at the first trial.

We believe there was sufficient evidence for the trier of fact to conclude defendants were guilty beyond a reasonable doubt. While we make no finding as to their guilt or innocence which would be binding on retrial, we merely consider the sufficiency of the evidence so as to remove the risk of subjecting defendant to double jeopardy. (People v. Taylor, 76 Ill. 2d 289, 391 N.E.2d 366; People v. Wilson (1986), 146 Ill. App. 3d 567.) In so holding, we point to the codefendants’ statements.

Each of the three defendants accused one or both of the others of committing the murder. We do not decide in this opinion whether the codefendants’ statements would be admissible in a new trial of defendants. (See People v. James (1987), 118 Ill. 2d 214, 514 N.E.2d 998; People v. Lekas, 155 Ill. App. 3d 391, 508 N.E.2d 221.) Thus, we will not address the question of whether defendants will have derivative standing to raise fourth amendment objections to the others’ confessions. See Alderman v. United States (1969), 394 U.S. 165, 22 L. Ed. 2d 176, 89 S. Ct. 961 (codefendants have no special standing and fourth amendment personal rights may not be vicariously asserted; not necessary to exclude evidence against one defendant in order to protect rights of another); see also People v. Pierce (1973), 13 Ill. App. 3d 939, 301 N.E.2d 330; People v. Pohlmann (1973), 13 Ill. App. 3d 779, 300 N.E.2d 301; see generally 4 W. LaFave, Search and Seizure §11.3(i) (2d ed. 1987).

In light of the holdings made herein, we need not decide the remaining issue of accountability.

For the foregoing reasons, the judgments of the circuit court of Cook County are reversed, and the causes are remanded for further proceedings consistent with the holdings stated herein.

Reversed and remanded.

FREEMAN, P.J., and WHITE, J., concur.


source: Caselaw Access Project

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. TRACY STOFER, Defendant-Appellant.
    First District (3rd Division)
    No. 1—86—3244
    Opinion filed February 15, 1989.

      Michael J. Pelletier and Anna Ahronheim, both of State Appellate Defender’s Office, of Chicago, for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Inge Fryklund and Gael M. O’Brien, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE McNAMARA

delivered the opinion of the court:

Defendant, Tracy Stofer, was found guilty of two counts of murder following a bench trial and was sentenced to a term of 23 years. Defendant appeals, contending that the trial court erred in not suppressing his confession after finding he was arrested without probable cause; that defendant was not proved accountable for the murder beyond a reasonable doubt; that the sentence is excessive; and that it was error to find him guilty on two counts of murder where there was one victim.

Nathaniel Corley, a 16-year-old, was shot and killed at 2:15 a.m. on March 3, 1985. Defendant was subsequently charged along with Ramsey Lewis and Steve Avery. Avery and Lewis accused defendant of shooting Corley, and defendant countered that he drove the car and either Lewis or Avery shot Corley. Defendant’s motion for severance was granted. (Lewis and Avery were also convicted, and this court has reversed those convictions and remanded for new trials. People v. Avery (1989), 180 Ill. App. 3d 146.

A joint hearing was held on the three codefendants’ motions to suppress their statements made to the police. After the initial hearing, the trial court ruled that defendant was not under arrest when he was originally removed from his home and taken to the police station for questioning. After six hours at the station, he was placed under arrest, but without probable cause. After a second hearing, the trial court concluded that the few hours between the illegal arrest without probable cause and the first inculpatory statement by Lewis, when probable cause to arrest arose, was sufficient to purge any taint. Thus, the motion to suppress defendant’s statements was denied.

At the hearing on the motion to suppress, defendant testified that on March 3, 1985, at 11 a.m., the police arrived at his home. His mother, Mrs. Ada Ford, called defendant downstairs from his bedroom. Officers Peter Dignan and Barry Costello, who were not in uniform, were waiting in the living room. Mrs. Ford asked whether they had an arrest warrant. Dignan replied, “No, but he’s going down to the station with us.” Mrs. Ford asked, “Can you talk to him here?” Dignan replied that they would question defendant at the police station. The officers and Mrs. Ford argued about the absence of an arrest warrant. Dignan told defendant to go upstairs and dress, which he did. When he returned, Dignan put his hand on defendant’s back and said, “Let’s go.”

Costello opened the front door and walked out. Defendant followed, and Dignan came last. Defendant was not handcuffed, but he did not feel free to remain at home. They entered an unmarked police car. Dignan opened the back door and motioned defendant into the car. Costello put his hand on defendant’s shoulder. Defendant entered, and Costello shut the door. Dignan locked the rear doors from the front of the car.

At the police station, defendant walked to the interrogation room with one officer on each side of him. In response to the officers’ questions, defendant denied knowing anything about the Corley murder. They did not give defendant his Miranda rights. Defendant did not ask if he could leave. After the first questioning period, defendant was handcuffed, and Dignan struck defendant on the head several times. The officers then left defendant alone in the room.

Costello testified that he picked up Lewis and Avery and drove them to the station after defendant told the police he had been with ( them the previous night.

Officer John Yucaitas testified that the shooting occurred at 2:15 a.m. The victim’s mother informed Yucaitas of the names of Corley’s friends. At 9 a.m., three of those friends, Eric Tate, Harry Elligan, and Tony Flemming, were brought to headquarters for questioning. They were separated. Tate told Yucaitas that on the night of the murder, the victim had told Tate, “Watch your back. Someone might shoot you.” Tate and the victim left a dance and walked to McDonald’s. At the dance, at McDonald’s, and at a friend’s house later, Tate saw three males driving in a gray, two-door Ford Escort hatchback, with papers in the window indicating it was new. The car drove very slowly and appeared to be following them. Elligan told Yucaitas that he last saw the victim on Elligan’s front porch at 2 a.m., talking with Elligan’s cousin. Yucaitas gave this information to Dignan and Costello, who took over the investigation at about 10 a.m.

Dignan testified that on that day he and Costello interviewed Flemming. Flemming said that on the night before the March 3 murder, he and the victim were accosted by two black males. Flemming said he would try to find out their names. Flemming telephoned within an hour to report that he and a friend had looked through the high school yearbook. They identified defendant as one of the males who had chased them with a pole the night before the shooting.

Dignan and Costello went to defendant’s home, where they noted a new gray, two-door, Ford Escort hatchback with a dealer sticker in the window, parked in front of defendant’s home. The car matched the description given by Tate.

Dignan testified that defendant’s mother was told they were investigating the shooting. Defendant’s name had been mentioned as the person who had an altercation with Flemming and the victim the previous Friday night. “And we wanted to talk to him about it. We understood there was a problem with gangs in the area and we also wanted to discuss that.” Mrs. Ford called her son and told him to get dressed. “[W]e explained to [Mrs. Ford] that we wanted to talk to him at the Area and after we were through talking to him we’d return him home.” They gave Mrs. Ford a business card with the station’s address and telephone number.

Dignan unlocked the back car door, and defendant entered. No one touched him. While Dignan did lock defendant’s door when he closed it, the locks on the car were standard, with no automatic buttons or master control. Going into the station, defendant followed several steps behind the officers.

At 11 a.m., in an interview room, the officers “told him we were investigating the murder of [Corley] and that his name had been brought up as having an incident the previous Friday night with [Cor-ley], and we wanted to know what was to that incident.” Defendant replied that he had had nothing to do "with the incident involving Cor-ley and Flemming. Defendant told him that on the previous night he had been driving the gray Ford hatchback. He first went to a party, and then drove around with Thomas Leatherwood, Avery and Lewis. He did not know Corley.

The interview room door was open. Defendant never asked to leave, was not told to remain there, and was not handcuffed. He was not told that he was free to leave. “We told him that we wanted some time to talk to his friends, Leatherwood, Avery and Lewis, and that we were going to go over to their homes right away and bring them in, talk to them, and we’d get back to him.”

At 1 p.m., Dignan and Costello found Lewis, who agreed to go to the station. Lewis told the police that he and defendant were at a party, and then drove around in the gray hatchback until about 1:30 a.m. The officers told Lewis that defendant gave a different version which mentioned other boys. Lewis agreed that Avery and Leather-wood were with them. The officers told Lewis “that we wanted to talk with Steven Avery, and we told him we’d get back to him.” Lewis was left in an interview room with the door open. He was not told he could leave, or that he should remain, and was not handcuffed.

At 3 p.m., Dignan and Costello located Avery at his home. At the station, Avery stated that on the previous night he was driven home at about 11:30 p.m. by defendant, and he then went to bed. The officers told Avery that his friends reported a completely different story. Avery denied being with Leatherwood or Lewis.

Around 5 p.m., the three codefendants were placed under arrest and given their Miranda rights. Prior to that, they had not been booked or processed in any way. The officers then spoke to Avery and Lewis several times. Avery began crying and stated that he was fearful of being killed if he spoke about the murder. At 7:30 p.m., Lewis made statements incriminating the three codefendants.

At 8 or 8:15 p.m., Costello returned to defendant. He again gave defendant his Miranda rights. Costello told defendant that Avery and Lewis accused defendant of shooting Corley. Defendant then stated that he saw the victim on the street. He parked, and Avery and Lewis exited the car and confronted Corley. Defendant then exited the car, heard several shots, and they all returned to the car. Avery or Lewis later threw the gun out the window. In a second statement, defendant stated he got out of the car at the same time as the other two boys.

The police then received defendant’s written consent to search his bedroom. The officers searched defendant’s room and, at defendant’s direction, found an unrelated gun in a leather jacket. At 9 p.m., the officers returned to the station. The assistant State’s Attorney and court reporter had arrived. At 9:45 p.m., a formal statement was taken from Lewis. At 10:17 p.m., Avery’s statement was taken. At 11:03 p.m., defendant’s formal statement was taken.

Dignan testified that a progress report he completed stated that the arrest was made in the morning. Dignan explained, “That’s the time he was taken into custody but he was not under arrest. He was in my care.” The report also listed Dignan, Costello, Yucaitas and Le-raiz as arresting officers. Yucaitas and Leraiz were not at the station between 4:30 and 5 p.m. Moreover, the arrest report stated that the address of the arrest was defendant’s home. Dignan explained that this was the place of “initial contact.”

James Ford, defendant’s stepfather, testified as a rebuttal witness for defendant that on March 3, 1985, at 11 a.m. he was awakened by the front and side doorbells ringing and loud banging on both doors. He let Officers Dignan and Costello into the house. They asked to speak to defendant. Ford went upstairs, woke up his wife, and told her to wake up defendant. In the living room, the Fords asked the police what they wished to question defendant about, and Dignan replied that it was about a shooting. Defendant came downstairs, and Dignan said, “Let’s go.”

Ford testified further that his wife asked the officers, “I thought you said you wanted to ask him some questions here?” Dignan answered, “We don’t question people in the homes.” Ford also assumed the police wanted to talk with defendant in his home. The police argued with them with “some hostility.”

Ford testified that defendant went upstairs to get his coat and returned to the living room. As the officers left, Dignan walked behind defendant, with his hand on defendant’s shoulder. Neither defendant nor his parents told the police they did not want defendant questioned. The officers gave him the address of the station. Ada Ford, defendant’s mother, testified similarly in rebuttal.

The trial court held that there was no arrest in defendant’s home. It relied on several factors as indications that the police did not manifest an intent to arrest defendant when they asked him to come to the station. The court pointed out that defendant was permitted to go upstairs alone; was not searched; was not handcuffed; was not given Miranda rights; was not fingerprinted or photographed; and his parents did not ask to go to the station with defendant. The court found further that when defendant was arrested at the station at 5 p.m., there was no probable cause. Finally, after a separate hearing on the attenuation issue, the court found that the several hours between the illegal arrest at 5 p.m. and defendant’s statements at 8 p.m. admitting knowledge of the shooting constituted sufficient attenuation, and the court refused to suppress the confession.

At trial, Elligan testified that on March 2, 1985, at 7 p.m. he met with the victim, Flemming, and Tate, and they went to a dance at a high school. They left at midnight. They walked to McDonald’s, and then went to Elligan’s house at about 1:30 a.m. Elligan went to bed, while Corley remained on the front porch with Elligan’s cousin. The next day, Elligan and Flemming identified defendant’s photograph in their yearbook.

Tate testified similarly. He recalled seeing a new gray Ford Escort after the dance and again at McDonald’s. He saw the car again just after he left Elligan and Corley at Elligan’s house. Tate was home by 1:30 a.m.

Dignan testified that he investigated the murder. At 11:03 p.m., defendant made a formal statement to the police. The statement, in which defendant admitted his role in the slaying of Corley, a rival gang member, was admitted into evidence.

Defendant contends that his confession resulted from an illegal arrest, and therefore, should have been suppressed. The State counters that defendant voluntarily agreed to accompany the police officers from his home in the morning, and therefore, no arrest occurred; that the arrest at 5 p.m. was supported by probable cause; and that even if the arrest was illegal, the confession need not be suppressed where the taint was sufficiently purged by intervening circumstances.

Initially, we hold that the trial court erred in finding there was no arrest at 11 a.m., when the police took defendant from his home.

An arrest occurs when the police inform defendant of a violation, defendant submits to their control, and it is clear that the police intend to arrest defendant and that defendant understands he is being arrested. (People v. Holloway (1985), 131 Ill. App. 3d 290, 475 N.E.2d 915.) The fourth amendment provides that all persons are protected against unreasonable searches and seizures. When no “seizure” occurs, no fourth amendment rights have been infringed. Florida v. Royer (1983), 460 U.S. 491, 75 L. Ed. 2d 229, 103 S. Ct. 1319.

The test for whether a person has been seized within the meaning of the fourth amendment is whether, in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave. (Michigan v. Chesternut (1988), 486 U.S. 567, 100 L. Ed. 2d 565, 108 S. Ct. 1975; People v. Wipfler (1977), 68 Ill. 2d 158, 368 N.E.2d 870.) The test is intentionally imprecise because it focuses on the coercive effect of police conduct taken as a whole, and not on each particular detail of the police conduct in isolation. Michigan v. Chesternut, 486 U.S. 567, 100 L. Ed. 2d 565, 108 S. Ct. 1975.

The police may not detain suspects for station house questioning absent probable cause to arrest. (Dunaway v. New York (1979), 442 U.S. 200, 60 L. Ed. 2d 824, 99 S. Ct. 2248.) In Dunaway, the teenage defendant was taken from his home in a police car to the station and was not informed he was free to leave. The Court found it was a custodial interrogation which required probable cause, even without the “trappings of a technical formal arrest.” (Dunaway, 442 U.S. at 215-16, 60 L. Ed. 2d at 838, 99 S. Ct. at 2258.) In People v. Sturdivant (1981) , 99 Ill. App. 3d 370, 425 N.E.2d 1046, the court found defendant was effectively under arrest without probable cause. Defendant had accompanied the police to the station where he was questioned over a 12-hour period.

Similarly, the 18-year-old defendant here was taken from his home by two officers. The police announced that they were taking defendant to the station to be questioned specifically about the Corley murder. The officers refused the parents’ requests to question defendant at home. Instead, they insisted that the interrogation had to occur at the station. Defendant was not told he was free to refuse to accompany the officers. The police led defendant to the police car and locked him in the car. Dignan testified that defendant was “taken into custody” at that time. The arrest report shows that 11 a.m. and defendant’s home address were the time and place of arrest.

At the station, defendant was not told he was free to leave, thus adding to a reasonable belief that he was under arrest. See Dunaway v. New York, 442 U.S. 200, 60 L. Ed. 2d 824, 99 S. Ct. 2248; Florida v. Royer, 460 U.S. 491, 75 L. Ed. 2d 229, 103 S. Ct. 1319; People v. Townes (1982), 91 Ill. 2d 32, 435 N.E.2d 103; People v. Fitzpatrick (1982) , 107 Ill. App. 3d 876, 438 N.E.2d 222; People v. McMahon (1980), 83 Ill. App. 3d 137, 403 N.E.2d 781.

Defendant was kept in an interrogation room for 12 hours. He was left alone for hours at a time, and not brought home after being questioned, as the police had told his parents. Instead, he was told that the police “wanted some time” and would “get back to him,” clearly permitting a reasonable belief that he was to remain in the interrogation room until they returned. In the meantime, the police continued the investigatory process by rounding up more teenagers to question. Defendant was questioned intermittently over the 12-hour period until he finally made an inculpatory statement.

Furthermore, the arrest report indicated that Officers Yucaitas and Lepaiz, who participated in the morning investigation, were the arresting officers, despite the fact that they were no longer working at 5 p.m.

In addition, defendant was only 18 years old and had no prior criminal convictions. Youth and inexperience may be considered in determining whether a suspect is voluntarily remaining at the station. (People v. Cole (1988), 168 Ill. App. 3d 172, 522 N.E.2d 635; 2 W. La-Fave, Search and Seizure §5.1(a), at 322 (2d ed. 1978).) Moreover, the officers’ subjective belief that defendant was free to leave is not determinative where it was not communicated to defendant. United States v. Mendenhall (1980), 446 U.S. 544, 64 L. Ed. 2d 497, 100 S. Ct. 1870; People v. Hardway (1987), 163 Ill. App. 3d 596, 516 N.E.2d 830; People v. Fitzpatrick, 107 Ill. App. 3d 876, 438 N.E.2d 222.

We hold that the trial court erred in finding that no arrest was made at 11 a.m. when defendant was taken by the police from his home to the station. The show of official authority was such that a reasonable person would not have believed he was free to leave. (Michigan v. Chesternut, 486 U.S. 567, 100 L. Ed. 2d 565, 108 S. Ct. 1975; United States v. Mendenhall, 446 U.S. 544, 64 L. Ed. 2d 497, 100 S. Ct. 1870.) Consequently, any evidence resulting from the statements defendant made to the police would be inadmissible.

The trial court properly found, however, that there was no probable cause to arrest defendant at 5 p.m. Probable cause to arrest exists where the acts and circumstances within the officers’ knowledge and of which they had reasonably trustworthy information are sufficient to warrant a person of reasonable caution in the belief that a crime has been committed by the person being arrested. Dunaway v. New York, 442 U.S. 200, 60 L. Ed. 2d 824, 99 S. Ct. 2248.

At 5 p.m., the police knew only that defendant drove a certain gray car the previous night; that he chased Corley days earlier; and that Lewis and Avery differed as to who accompanied defendant on the night of the crime. This is insufficient to establish probable cause to arrest defendant for murder. None of the codefendants confessed to any knowledge of, or participation in, the murder. It was not until Lewis implicated all three codefendants that probable cause arose. (See People v. McGhee (1987), 154 Ill. App. 3d 232, 507 N.E.2d 33.) We agree with the trial court that there was no probable cause to arrest defendant at 5 p.m. (See People v. Nash (1979), 78 Ill. App. 3d 172, 397 N.E.2d 480.) Consequently, there was no probable cause to arrest defendant at 11 a.m.

The determination that an illegal arrest has occurred is not dispositive of the issue of the admissibility of a subsequent confession. The relevant inquiry is whether the confession was obtained by exploitation of the illegality of his arrest. (Brown v. Illinois (1975), 422 U.S. 590, 45 L. Ed. 2d 416, 95 S. Ct. 2254.) The evidence need not be suppressed if it was obtained by means sufficiently distinguishable to be purged of the primary taint. People v. White (1987), 117 Ill. 2d 194, 512 N.E.2d 677, quoting Wong Sun v. United States (1963), 371 U.S. 471, 487-89, 9 L. Ed. 2d 441, 455-56, 83 S. Ct. 407, 417-18.

The threshold requirement for fourth amendment analysis is whether or not the proper Miranda warnings were given. (Brown v. Illinois, 422 U.S. 590, 45 L. Ed. 2d 416, 95 S. Ct. 2254.) Where the fifth amendment has been violated, the fourth amendment issue need not be reached. (Dunaway v. New York, 442 U.S. 200, 60 L. Ed. 2d 824, 99 S. Ct. 2248.) Defendant was not given his Miranda rights at the time of his 11 a.m. arrest, but was given those rights at 5 p.m. and at 8 p.m. There is no contention that the confession was otherwise involuntary under fifth amendment analysis. See People v. Ealy (1986), 146 Ill. App. 3d 557, 497 N.E.2d 101 (station house questioning was functional equivalent of an arrest where defendant was taken from his home, not given Miranda rights, and was left alone in interrogation room for long periods while the police continued the investigation).

Beyond the threshold requirements of voluntariness, our analysis focuses on the causal connection between the illegality and the confession. (Brown v. Illinois, 422 U.S. 590, 45 L. Ed. 2d 416, 95 S. Ct. 2254.) The Court in Brown identified several factors as particularly important to evaluate the admissibility of confessions obtained after illegal arrests. These factors are the temporal proximity of the arrest and the confession, the presence of intervening circumstances, and, particularly, 'the purposefulness and flagrancy of the official misconduct. (Brown v. Illinois, 422 U.S. 590, 45 L. Ed. 2d 416, 95 S. Ct. 2254.) The burden of showing admissibility rests upon the State. Brown v. Illinois, 422 U.S. 590, 45 L. Ed. 2d 416, 95 S. Ct. 2254.

The temporal proximity here was eight hours between the 11 a.m. arrest and Lewis’ 7 p.m. confession implicating himself, Avery and defendant, at which time probable cause to arrest arose, and nine hours between the morning arrest and defendant’s 8 p.m. confession. This lengthy span of time can be an aggravating factor, rather than one tending to dissipate the taint of the illegal arrest. Dunaway v. New York, 442 U.S. 200, 60 L. Ed. 2d 824, 99 S. Ct. 2248; People v. White, 117 Ill. 2d 194, 512 N.E.2d 677; People v. Thomas (1984), 123 Ill. App. 3d 857, 463 N.E.2d 832; People v. Sturdivant, 99 Ill. App. 3d 370, 425 N.E.2d 1046.

The key to whether or not the relevant time constitutes sufficient attenuation depends considerably on whether any intervening event occurred and the nature of that event. See Dunaway v. New York (1979), 442 U.S. 200, 220, 60 L. Ed. 2d 824, 840-41, 99 S. Ct. 2248, 2260-61 (Stevens, J., concurring); People v. White, 117 Ill. 2d 194, 512 N.E.2d 677.

In attempting to establish attenuation, the State maintains that presenting defendant with the statements of his companions was an intervening circumstance. The confrontation of an arrestee with untainted evidence may constitute an independent intervening circumstance. (In re R.S. (1981), 93 Ill. App. 3d 941, 418 N.E.2d 195.) Confrontation with incriminating evidence purges the taint of an illegal arrest, however, only where the evidence itself is not a product of the illegal arrest. (Taylor v. Alabama (1982), 457 U.S. 687, 73 L. Ed. 2d 314, 102 S. Ct. 2664; People v. Franklin (1987), 115 Ill. 2d 328, 504 N.E.2d 80; People v. Thomas, 123 Ill. App. 3d 857, 463 N.E.2d 832; People v. Nash, 78 Ill. App. 3d 172, 397 N.E.2d 480.) Defendant’s statement was extracted after being confronted with his codefendants’ statements. Avery and Lewis were arrested, however, as a result of defendant’s illegal arrest. Moreover, the confrontation of defendant himself occurred only because defendant was unlawfully detained. See W. LaFave, 4 Search and Seizure §11.4(b), at 400 (2d ed. 1987).

In State v. Winegar (1985), 147 Ariz. 440, 711 P.2d 579, the State maintained that intervening circumstances were present because a co-defendant’s statement was presented to defendant at some point between defendant’s illegal arrest and his confession. The Arizona Supreme Court rejected this argument and found that the confrontation with the codefendant’s statement was itself the result of defendant’s illegal arrest and could not intervene to purge the taint of the arrest.

The situation in the present case is nearly identical, and we agree with Winegar that confronting defendant with his codefendants’ statements did not constitute an intervening event which purged the taint of the illegal arrest. E.g., People v. Gabbard (1979), 78 Ill. 2d 88, 398 N.E.2d 574; People v. Lekas (1987), 155 Ill. App. 3d 391, 508 N.E.2d 221; People v. Malloy (1982), 104 Ill. App. 3d 605, 432 N.E.2d 1291; People v. Tankson (1980), 92 Ill. App. 3d 328, 415 N.E.2d 1218.

The final factor to be considered under Brown is the purposefulness and flagrancy of the official misconduct. An arrest has a quality of purposefulness where, e.g., it is an expedition for evidence admittedly undertaken in' the hope that something might turn up. (See, e.g., Taylor v. Alabama, 457 U.S. 687, 73 L. Ed. 2d 314, 102 S. Ct. 2664; Dunaway v. New York, 442 U.S. 200, 60 L. Ed. 2d 824, 99 S. Ct. 2248; Brown v. Illinois, 422 U.S. 590, 45 L. Ed. 2d 416, 95 S. Ct. 2254.) The purpose of suppressing evidence obtained as a result of police conduct which is purposeful and flagrant is to prevent similar conduct on the part of the police in the future and to deny them any benefit from such conduct. People v. Dortch (1982), 109 Ill. App. 3d 761, 441 N.E.2d 100.

Here, the police conducted themselves in such a manner that demonstrates they were questioning many people in the hope something would turn up. The process was entirely investigatory. They brought in at least six teenagers over a 12-hour period, questioning them in separate rooms, attempting to gather any potentially relevant information, and finally eliciting conflicting statements. The question of attenuation is a matter of degree. (Brown v. Illinois, 422 U.S. 590, 45 L. Ed. 2d 416, 95 S. Ct. 2254.) In weighing the relevant factors here, we find the taint emanating from the illegal arrest was not dissipated or attenuated.

We conclude that the trial court’s determination of attenuation is contrary to the manifest weight of the evidence. (See People v. Lekas, 155 Ill. App. 3d 391, 508 N.E.2d 221; People v. Davis (1980), 86 Ill. App. 3d 557, 407 N.E.2d 1109.) The court erred in admitting the confession on the basis that there was sufficient attenuation between the illegal arrest and the confession. We therefore remand for a new trial, where the confession must be suppressed.

Because we reverse the conviction for trial error, we must decide whether the evidence at the first trial was sufficient to sustain the conviction. People v. Brooks (1987), 115 Ill. 2d 510, 505 N.E.2d 336; People v. Taylor (1979), 76 Ill. 2d 289, 391 N.E.2d 366; People v. Massie (1985), 137 Ill. App. 3d 723, 484 N.E.2d 1213.

Double jeopardy is not a bar to a new trial where, as in the present case, reversal is the result of trial error, and not the result of evidence which is legally insufficient to sustain the jury’s verdict. (Burks v. United States (1978), 437 U.S. 1, 57 L. Ed. 2d 1, 98 S. Ct. 2141.) It would be a high price for society to pay if every defendant were granted immunity from punishment because of a trial defect which constituted reversible error. (Burks v. United States, 437 U.S. 1, 57 L. Ed. 2d 1, 98 S. Ct. 2141.) If a trial error barred further prosecution, appellate courts would be hesitant to ever find such errors. Montana v. Hall (1987), 481 U.S. 400, 95 L. Ed. 2d 354, 107 S. Ct. 1825; Lovinger v. Circuit Court for 19th Judicial Circuit (N.D. Ill. 1987), 652 F. Supp. 1336, aff’d (7th Cir. 1988), 845 F.2d 739; People v. Ramirez (1986), 114 Ill. 2d 125, 500 N.E.2d 14.

The United States Supreme Court recently held that retrial is permitted when a reviewing court determines that the conviction must be reversed because evidence was erroneously admitted against defendant, and that without the inadmissible evidence, there would be insufficient evidence to support a conviction. (Lockhart v. Nelson (1988), 488 U.S__, 102 L. Ed. 2d 265, 109 S. Ct. 285.) A reversal based on trial errors such as the incorrect receipt of evidence implies nothing with respect to defendant’s guilt, but merely determines that he was convicted through a judicial process which is defective in some fundamental respect. Lockhart v. Nelson (1988), 488 U.S._, 102 L. Ed. 2d 265, 109 S. Ct. 285, citing Burks v. United States, 437 U.S. 1, 57 L. Ed. 2d 1, 98 S. Ct. 2141, United States v. Key (7th Cir. 1984), 725 E2d 1123, United States v. Tranowski (7th Cir. 1983), 702 F.2d 668, and People v. Taylor, 76 Ill. 2d 289, 391 N.E.2d 366. Accord Reimnitz v. State’s Attorney (N.D. Ill. 1984), 596 F. Supp. 47, aff’d as modified (7th Cir. 1985), 761 F.2d 405; United States v. Gonzalez-Sanchez (1st Cir. 1987), 825 F.2d 572; United States v. Porter (1st Cir. 1986), 807 F.2d 21. See also Tibbs v. Florida (1982), 457 U.S. 31, 72 L. Ed. 2d 652, 102 S. Ct. 2211 (setting of lower limit on appellate court’s definition of evidentiary sufficiency); United States v. Holzer (7th Cir. 1988), 840 F.2d 1343; Delk v. Atkinson (6th Cir. 1981), 665 F.2d 90. See generally 3 W. LaFave & J. Israel, Criminal Procedure §24.4, at 90-91 (1984).

In People v. Taylor, 76 Ill. 2d 289, 391 N.E.2d 366, the conviction was reversed because the confession should have been suppressed. The court first found it was error for the appellate court not to reach the question of whether the evidence adduced at trial was sufficient to sustain defendant’s conviction for armed robbery. (Accord People v. Brooks, 115 Ill. 2d 510, 505 N.E.2d 336.) The court instructed the appellate court to review all the evidence introduced at the first trial.

We believe that there was sufficient evidence for the trier of fact to conclude defendant was guilty beyond a reasonable doubt. While we make no finding as to his guilt or innocence which would be binding on retrial, we merely consider the sufficiency of the evidence so as to remove the risk of subjecting defendant to double jeopardy. People v. Taylor, 76 Ill. 2d 289, 391 N.E.2d 366.

In so holding, we point to the codefendants’ statements. Averjr told the police that defendant pulled out a gun and fired four times at the victim. Defendant said, “I think I got him.” Lewis first told the police that Avery and defendant left the car and killed the victim. Lewis later confirmed Avery’s version. We do not decide whether Lewis’ or Avery’s statements would be admissible in a new trial of defendant. (See People v. James (1987), 118 Ill. 2d 214, 514 N.E.2d 998; People v. Lekas, 155 Ill. App. 3d 391, 508 N.E.2d 221.) Thus, we will not address the question of whether defendant will have derivative standing to raise fourth amendment objections to the admission of Lewis’ and Avery’s statements. See Alderman v. United States (1969), 394 U.S. 165, 22 L. Ed. 2d 176, 89 S. Ct. 961 (codefendants have no special standing and fourth amendment personal rights may not be vicariously asserted; not necessary to exclude evidence against one defendant in order to protect rights of another); see also People v. Pierce (1973), 13 Ill. App. 3d 939, 301 N.E.2d 330; People v. Pohlmann (1973), 13 Ill. App. 3d 779, 300 N.E.2d 302; see generally 4 W. LaFave, Search and Seizure §11.3(i) (2d ed. 1987).

In light of our holdings, we need not decide the remaining issues.

For the foregoing reasons, the judgment of the circuit court of Cook County is reversed, and the cause is remanded for further proceedings consistent with the holdings stated herein.

Reversed and remanded.

FREEMAN, P.J., and WHITE, J., concur.


author: PRESIDING JUSTICE FREEMAN

text:
      In re C.L. et al., Minors (The People of the State of Illinois, Petitioner-Ap-pellee, v. C.L. et al., Minors, Respondents-Appellants.
    First District (3rd Division)
    Nos. 1—87—0245, 1—87—0247 cons.
    Opinion filed February 22, 1989.

      Randolph N. Stone, Public Defender, of Chicago, for appellants.
    Richard M. Daley, State’s Attorney, of Chicago, for the People.
   PRESIDING JUSTICE FREEMAN

delivered the opinion of the court:

Respondents, C.L. and A.R., were charged with two counts each of aggravated assault in petitions for adjudication of wardship brought by the State. The trial court adjudicated respondents to be delinquent. The court credited C.L. for 30 days spent in custody and placed him on probation for one year. The court committed A.R. to the juvenile detention center for 25 days and also placed him on probation for one year. Respondents appeal.

The petitions in this case were based on respondents’ alleged commission of the offense of aggravated assault against Earlean Collier and George Henderson. On October 22, 1986, at approximately 9 p.m., Earlean Collier and her husband, George Henderson, were at home with their children when they heard noise in front of their home. When Earlean and George went out to their front porch to investigate, they found one of their daughters having an argument with Tracy Smith, who lived next door. Earlean and George also saw A.R. at the scene. A.R. was wearing a black jogging suit with yellow stripes down the sides. George heard A.R. say that if George’s daughter was going to fight Tracy, A.R. “ ‘was going to get into it.’ ” George then grabbed A.R. by the arm and told him he wanted to talk. George led A.R. down the street and was talking to him when A.R.’s girlfriend approached them. A.R. told her to get C.L. “ ‘and tell him to bring that thing.’ ” While George and A.R. were talking, C.L., who was dressed like A.R., came up to them and asked A.R., “ ‘What’s happening, man?’ ” When George told C.L. to give them “some space,” C.L. left and walked over to Earlean’s and George’s porch.

When C.L. walked over to the porch, he told Earlean that she “ ‘better tell [George] to get away from [A.R.] because [A.R.] will pop him.’ ” Earlean testified that “pop” was street slang for “shooting.” George returned to the porch as C.L. was leaving. While Earlean and George were on the porch, A.R. walked up, stood in front of the porch and said, “ ‘Don’t nobody put his hands on me. You’re going to pay for that.’ ” George then started walking off the porch to talk to A.R. “man-to-man.” At that point, C.L. grabbed A.R. and said, “ ‘Man you don’t got to take that shit.”

Earlean testified that George then walked back up the stairs and said, “He’s really got a gun.” Earlean said, “ ‘What?’ ” and turned around to look at A.R. George then pushed her inside the house. Ear-lean testified that when she turned around “[h]e had the gun in his hand and [waved] it.” Earlean stated that after George pushed her inside, “we went upstairs to call the police.” Earlean also testified that black and yellow are the colors of the Vice Lords street gang. Ear-lean identified the respondents while they sat in a police car later that night.

George’s testimony, some of which is included above, was substantially the same as Earlean’s. He additionally testified that after he pushed Earlean inside the house, C.L. asked A.R., “ ‘Man do you want to pop?’ ” and A.R. yelled, “ ‘[S]ay, let’s pop,’ ” which George knew meant “shoot.” George testified that when he heard that, he felt frightened because he didn’t know “if he was going to shoot me or *** my -wife.” George further testified that, after he heard those words, he went upstairs and called the police. After the police arrived, they and George toured the area looking for the two boys. George identified the respondents after the police picked them up.

Opinion

We first address the State’s argument that respondents have waived every issue they now raise due to their failure to file a post-trial motion. The State relies on Supreme Court Rule 660(a), providing that appeals from final judgments in delinquent minor proceedings are “governed by the rules applicable to criminal cases.” (107 Ill. 2d R. 660(a).) Based on that rule, the State argues that the requirement of a post-trial motion contained in section 116 — 1(b) of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1985, ch. 38, par. 116— 1(b)) applied to the proceedings in this case. We disagree.

In contrast to the State, we construe the term “rules” as used in Rule 660(a) to mean simply the “supreme court rules” applicable to criminal appeals, not rules codified in the Code of Criminal Procedure or general rules of criminal trial practice. Section 5 — 18 of the Juvenile Court Act (Ill. Rev. Stat. 1987, ch. 37, par. 805 — 18), cited by the State at oral argument in support of its waiver argument, merely provides that, inter alia, the rules of evidence in criminal proceedings are applicable to delinquency hearings. Moreover, In re Driver (1977), 46 Ill. App. 3d 574, 360 N.E.2d 1202, has already rejected the State’s argument. The court stated:

“Driver is attacking a bench finding of wardship based on the evidence. And such an attack is analogous to a criminal defendant’s appellate attack on the sufficiency of evidence to convict in a criminal bench trial. It has been held that the failure to file any post-trial motion in a criminal bench trial does not waive on appeal issues relating to the sufficiency of the evidence, errors in admission of prejudicial hearsay, and failure to grant a motion to suppress. [Citations.] This is not a case where the alleged error was not brought to the trial court’s attention. In the instant case, no written motion was necessary to preserve the issue for review.” Driver, 46 Ill. App. 3d at 575-76.

Respondents first contend that the trial court erred in allowing Earlean to testify that the colors yellow and black, the colors of jogging outfits worn by respondents on October 16, 1986, were the colors of the Vice Lords street gang. Respondents argue that seeing someone in a black and yellow jogging suit would not signify to a reasonable person that the wearer was in a street gang or place such a person in apprehension of receiving a battery from the person wearing the suit.

The State asserts that respondents misconstrue the term “reasonable” as used in section 12 — 1 of the Criminal Code of 1961 (Ill. Rev. Stat. 1981, ch. 38, par. 12 — 1). The State contends, citing People v. Alexander (1976), 39 Ill. App. 3d 443, 350 N.E.2d 144, that “reasonable” as used in section 12 — 1 refers to a subjective, not objective, standard, i.e., whether the particular victim involved reasonably apprehended receiving a battery under the circumstances of the case.

We cannot agree with the State that the standard employed in the statutory definition of assault is subjective. The element of reasonable apprehension is the traditional element of assault borrowed from the law of torts. (Ill. Ann. Stat., ch. 38, par. 12 — 1, Committee Comments, at 406 (Smith-Hurd 1979).) It is therefore an objective standard: “the apprehension must be one which would normally be aroused in the mind of a reasonable person.” (W. Keeton, Prosser & Keeton on Torts §10, at 44 (5th ed. 1984).) Unlike the State’s standard, an objective standard bars consideration of the idiosyncratic characteristics of a particular victim such as extreme timidity or frightfulness. (W. Keeton, Prosser & Keeton on Torts §10, at 44 (5th ed. 1984).) However, we do not believe, as respondents imply, that it bars consideration of facts known to the victim of the assault about the alleged assailant in determining whether the apprehension of a battery was reasonable.

Rather, such knowledge may be taken into consideration as part of the circumstances of the case, which are always relevant to determining reasonableness. Earlean’s knowledge that black and yellow are the colors of a street gang was therefore relevant and admissible to show whether a reasonable person with that knowledge would have apprehended a battery from another who was wearing those colors, acting belligerently toward the person and a loved one and carrying a gun.

Even assuming that it was error for the trial court to admit this evidence, we disagree with respondents that it was reversible error. In view of Earlean’s and George’s testimony, discussed more fully below, that C.L. was carrying a gun and George’s testimony that A.R. and C.L. discussed shooting, we do not believe that a trial free of this evidence would have produced a different result. It was therefore harmless beyond a reasonable doubt.

In this regard, we disagree with respondents that the court compounded its error by barring evidence to rebut the inference of gang membership arising from Earlean’s testimony. Respondents sought to introduce, through the testimony of Chicago police officer Ralph Gomez, the fact that the colors of Orr High School, near which this incident occurred, are black and gold. We agree with the State that Earlean’s testimony was not introduced for the purpose of proving, or raising an improper inference of, gang membership. (See People v. Hairston (1970), 46 Ill. 2d 348, 263 N.E.2d 840, cert. denied (1971), 402 U.S. 972, 29 L. Ed. 2d 136, 91 S. Ct. 1658.) Therefore, the trial court need not have allowed respondents to rebut that inference. Moreover, absent an allegation that Earlean knew that the colors of Orr High School are black and gold, that fact was irrelevant to the reasonableness of her apprehension of receiving a battery by respondents.

Nor did the trial court compound its error by barring evidence that a “Crazy C” tattoo on C.L.’s arm was not gang-related. Absent evidence that Earlean was aware of the tattoo, any evidence as to its meaning was irrelevant to the reasonableness of her apprehension of a battery. Moreover, police officer Gomez, through whom respondents also sought to adduce this evidence, answered “no” when asked whether he knew what a “Crazy C” signified. There was thus no foundation for any testimony by him as to the meaning of the tattoo.

Respondents next contend that the trial court erred in admitting Officer Gomez’ hearsay testimony that George Henderson told him that he and E arlean had a verbal altercation with two boys who had a gun and that A.R. was one of the boys.

Officer Gomez’ testimony that Henderson identified A.R. as one of the boys was properly admitted under section 115 — 12 of the Code of Criminal Procedure of 1963. (Ill. Rev. Stat. 1985, ch. 38, par. 115 — 12.) As required thereunder: (1) the out-of-court declarant, George Henderson, testified at respondents’ trial and was subject to cross-examination and (2) the hearsay statement was one of identification of A.R. made after perceiving him. The hearsay statement was thus admissible as substantive and corroborative evidence. (People v. Davis (1985), 137 Ill. App. 3d 769, 771, 484 N.E.2d 1098.) People v. Johnson (1979), 68 Ill. App. 3d 836, 386 N.E.2d 642, cited by respondents, holds only that a hearsay statement of identification is inadmissible where, unlike here, the out-of-court declarant does not testify at trial and is thus not subject to cross-examination.

Moreover, Officer Gomez’ testimony that George Henderson told him that he and Earlean had an altercation with two boys who had a gun was not incompetent hearsay. In People v. Houston (1974), 21 Ill. App. 3d 209, 213, 315 N.E.2d 192, cert. denied (1975), 420 U.S. 936, 43 L. Ed. 2d 412, 95 S. Ct. 1145, a police officer testified that he had a conversation with the victim of an intimidation “ ‘relative to two youths approaching *** and threatening her’ ” and that, as a result of that conversation, he arrested the defendants. What the court stated in rejecting a hearsay challenge to that testimony is dispositive here:

“For two reasons, we do not agree that what the officer related *** was hearsay. Primarily, the officer was testifying *** only to the fact of what he had been told by [the victim] and not to the substantive truth of her assertion that [the defendants] actually intimidated her, and thereafter, only to what he did as a result of the conversation. He was explaining how he had come to arrest appellants for the instant offense. [Citation.] Moreover, it is the lack of opportunity for cross-examination of the out-of-court declarant, whose assertion is being offered as substantive truth, that is the essential reason why the assertion must be rejected. [Citation.] Here, the out-of-court declarant *** testified in court and was thoroughly cross-examined by defense counsel. The rule against hearsay is not applicable to the facts of this case.” Houston, 21 Ill. App. 3d at 213-14.

Respondents next contend the trial court deprived them of their right to effective cross-examination (U.S. Const., amends. VI, XIV) by prohibiting them from asking Earlean whether she was drinking on October 22, 1986.

When a defendant alleges the denial of the right of confrontation, the issue is whether the finder of fact was made aware of adequate factors to determine the witness’ credibility, not whether any particular limitation has been placed on the defendant’s ability to cross-examine the witness or whether the finder of fact has knowledge of any specific fact. (People v. Newman (1984), 123 Ill. App. 3d 43, 46, 462 N.E.2d 731; People v. Hines (1981), 94 Ill. App. 3d 1041, 1048, 419 N.E.2d 420.) A review of the record convinces us that, except for the prohibition complained of, the trial court afforded respondents sufficient opportunity to bring such matters to its attention as the trier of fact and thus did not violate their right to effective cross-examination.

Respondents note that evidence of intoxication or drinking around the time of an offense is admissible to attack a witness’ perception and memory of the events to which she is testifying. They further note that such evidence is not collateral and may be introduced either in cross-examination or the defendant’s case in chief. People v. DiMaso (1981), 100 Ill. App. 3d 338, 426 N.E.2d 972, the only case which respondents cite, and People v. Morris (1964), 30 Ill. 2d 406, 197 N.E.2d 433, the case underlying it, deal with situations where the principal issue is the identification of the accused. (Morris, 30 Ill. 2d at 409; DiMaso, 100 Ill. App. 3d at 342.) Here, however, identification was not the principal issue. Respondents never asserted at trial that they were the victims of mistaken identity. Morris and DiMaso do not require a finding of reversible error in the trial court’s prohibition of further questioning of Earlean regarding her drinking on October 22, 1986.

Moreover, respondents were not so prejudiced by the trial court’s action that a new trial is required. Before the trial court prohibited further questioning of Earlean concerning her drinking, she thrice responded to individual queries, albeit over the State’s sustained objections, that she did not even drink. Respondents also ignore that defense counsel was subsequently allowed to ask Earlean whether she had a beer in her hand when she first came out to the porch. Earlean denied this allegation. Finally, respondents were allowed to impeach Earlean’s denials without objection when Tracy Smith testified that Earlean had a beer in her hand when she appeared on the front porch.

Tracy’s testimony was the only evidence in the record that Ear-lean was drinking. Contrary to respondent’s assertion at oral argument, no defense witness testified that Earlean was or appeared intoxicated. Earlean specifically denied that she had been drinking. Additionally, James Riddle, also a defense witness, testified that Ear-lean did not have anything in her hand when she appeared on the front porch. There is thus a paucity of evidence in the record that Earlean had been drinking on October 22, 1986. Given that fact and defense counsel’s failure to make an offer of proof to support his questioning of Earlean about drinking, respondents cannot complain that they were denied effective cross-examination. Cf. People v. McCommon (1979), 79 Ill. App. 3d 853, 865, 399 N.E.2d 224 (no error in prohibiting cross-examination of State’s witness regarding drug use where there was no record evidence that he was using drugs at any relevant time and defense counsel did not make an offer of proof to support his inquiry).

Respondents next contend that they were not proved guilty of aggravated assault beyond a reasonable doubt. Respondents first assert that there was no evidence that Earlean apprehended receiving a battery from them and that the limited evidence of George’s apprehension was controverted by his act of staying out on the porch while respondents talked about shooting, which was inconsistent with an apprehension of a battery.

We cannot agree. The existence of reasonable apprehension of a battery is a question for the trier of fact. Its determination will not be disturbed unless it is against the manifest weight of the evidence. (People v. Holverson (1975), 32 Ill. App. 3d 459, 460, 336 N.E.2d 88.) It is not necessary that a victim expressly testify that he was in apprehension of receiving a battery to sustain a conviction. Rather, the fact finder may infer reasonable apprehension of a battery from the facts of the case (People v. Chrisopulos (1980), 82 Ill. App. 3d 581, 402 N.E.2d 912), including the conduct of the defendant and the victim (see People v. Alexander (1976), 39 Ill. App. 3d 443, 447-48, 350 N.E.2d 144). We believe that the conduct of respondents and the alleged victims was sufficient for the trial court to infer the latter’s reasonable apprehension of receiving a battery. We believe this notwithstanding Earlean’s failure to expressly testify to such effect and George’s allegedly inconsistent conduct.

Respondents also assert that inconsistencies in Earlean’s and George’s testimony, coupled with the defense evidence that neither respondent had a gun, raised a reasonable doubt of guilt. Specifically, they assert that Earlean testified that George saw the gun first and told her that A.R. had a gun. They also note Earlean’s testimony that George then pushed her inside and went in right behind her. In contrast, they assert, George testified that Earlean saw the gun first in C.L.’s right hand and alerted him to that fact. They also note that George claimed he pushed Earlean inside but remained on the porch while A.R. and C.L. discussed whether they should shoot.

Preliminarily, we find unavailing respondent’s reliance on the discrepancy, if any, between the testimony of Earlean and George as to which respondent held the gun. The State never contended at trial that respondents had more than one gun between them. Obviously, therefore, the State was relying on accomplice liability as to one respondent. Which respondent held the gun was thus irrelevant to the State’s case as long as it proved that one of them held it and that the other aided and abetted his conduct. Ill. Rev. Stat. 1985, ch. 38, pars. 5-1, 5-2.

Moreover, respondents’ contention that Earlean testified that she saw A.R. with the gun is without merit. Earlean testified on direct examination that, when he walked up to the porch after descending a second time to talk to A.R., George said, “He’s really got a gun.” She testified that she then turned around to look at A.R. before George pushed her inside. Thereafter, neither she nor the prosecutor named the boy who had the gun. Rather, they simply referred to “he,” e.g., “he’s got a gun,” “[h]e had the gun,” “he held the gun.” The fact that Earlean had turned around to look at A.R. does not compel the conclusion that A.R. was the “he” to whom Earlean and the prosecutor referred as holding the gun. Finally, respondents ignore Earlean’s testimony on cross-examination. Defense counsel asked Earlean whether C.L. had not dragged A.R. away after C.L. had told A.R. that he did not have to take “that shit.” Earlean responded, “When he said that, he had a gun in his hand. He was talking to [A.R.].” Defense counsel later asked Earlean, “You never saw [C.L.] shoot the gun?” and Earlean responded, “I saw him with a gun.” These references, unlike those in Earlean’s direct testimony, were clearly to C.L., not A.R. Thus, Earlean, like George, testified that C.L. held the gun.

We also find no discrepancy between Earlean’s and George’s testimony regarding who saw the gun first. It is a reasonable inference from Earlean’s testimony that George saw the gun first. However, George neither testified nor implied that Earlean saw the gun first. George testified that, after C.L. told A.R. he didn’t have to take or listen to “that shit,” C.L. approached him with an automatic pistol in his right hand. Only after so testifying did George state that Earlean told him “that boy has a gun.” George’s testimony thus corroborated Earlean’s with respect to who saw the gun first. At most, it was inconsistent with hers as to who first told the other that one of the boys had a gun. That inconsistency is wholly inadequate to raise a reasonable doubt of guilt.

Earlean also testified that, after George told her that “he” had a gun and pushed her inside, “we went upstairs to call the police.” George, on the other hand, testified on direct examination that he went upstairs and called the police after he heard respondents discuss whether they should shoot. Similarly, on cross-examination, George testified that after he pushed Earlean inside, he remained on the porch while respondents discussed shooting and then went inside to call the police.

Clearly, there was a discrepancy between George and Earlean as to when George went inside the house. However, it does not create a reasonable doubt of respondents’ guilt. The discrepancy had no effect on the evidence regarding the elements of aggravated assault as to each victim. Specifically, it was unrelated to the issue and evidence of respondents’ possession of a deadly weapon at the time of the incident. The State’s evidence clearly proved that Earlean and George both saw C.L. with a gun. Moreover, respondents’ conduct prior to the point in time at which Earlean and George saw C.L. carrying a gun and the fact that they saw C.L. doing so were sufficient grounds for the trial court to infer that both Earlean and George reasonably apprehended a battery from respondents. As such, whether George went inside right behind Earlean or stayed out on the porch and heard respondents discuss shooting is irrelevant.

In sum, the inconsistencies between Earlean’s and George’s testimony, either alone or together with the defense evidence, do not render the State’s evidence in toto so unreasonable, improbable or unsatisfactory that they cast a reasonable doubt upon respondent’s guilt. (See, e.g., People v. Holiday (1985), 130 Ill. App. 3d 753, 474 N.E.2d 1280.) Regarding the defense evidence that neither respondent had a gun but that C.L. was holding a silver belt buckle, it is axiomatic that a court of review will not substitute its judgment for the trier of fact where the evidence is merely conflicting. People v. Daniels (1984), 129 Ill. App. 3d 894, 473 N.E.2d 517; People v. Porterfield (1971), 131 Ill. App. 2d 167, 268 N.E.2d 537.

For all of the foregoing reasons, the judgment of the trial court is affirmed in its entirety.

Affirmed.

McNAMARA and RIZZI, JJ., concur.