In re G.O.

JUSTICE McMORROW, also dissenting:

I dissent from the majority’s holding that the circuit court did not err in admitting G.O’s confession, since the confession was “the result of his own decision and not the result of compulsion or his will being overborne.” 191 Ill. 2d at 57. I do not believe that the confession was voluntarily and knowingly given by G.O. and therefore cannot agree that G.O.’s confession was properly admitted at trial. The constellation of facts in the instant case does not demonstrate that G.O., under the totality of the circumstances, confessed either voluntarily or with an understanding of the consequences of his confession. The majority unreasonably assumes that a child of 13 is capable of making an intelligent waiver of his constitutional rights. I do not adopt that assumption and therefore I respectfully dissent.

The totality of the circumstances surrounding a confession is to be considered in the determination of whether a juvenile confessed to a crime following a knowing and voluntary waiver of his Miranda rights. Fare v. Michael C., 442 U.S. 707, 724 , 61 L. Ed. 2d 197, 212 , 99 S. Ct. 2560, 2571 (1979); People v. Simmons, 60 Ill. 2d 173, 179 (1975). The age, education, experience and background of a juvenile are to be examined, as well as “whether he has the capacity to understand the warnings given him, the nature of his Fifth Amendment rights, and the consequences of waiving those rights.” Fare, 442 U.S. at 725 , 61 L. Ed. 2d at 212 , 99 S. Ct. at 2572 . In its analysis, the court should also consider the youth’s physical condition, the existence of threats, promises or physical coercion, whether the minor was informed of his constitutional rights, the duration of the interrogation and whether the confession was the product of police deception. People v. Gilliam, 172 Ill. 2d 484, 500-01 (1996); People v. Martin, 102 Ill. 2d 412, 426-27 (1984); see People v. Prude, 66 Ill. 2d 470, 475-76 (1977). Perhaps the most critical element in the totality of the circumstances is the admonition by the United States Supreme Court that, in the absence of legal counsel to advise a juvenile before or during the interrogation, “the greatest care must be taken to assure that the admission was voluntary, in the sense not only that it was not coerced or suggested, but also that it was not the product of ignorance of rights or of adolescent fantasy, fright or despair.” (Emphasis added.) In re Gault, 387 U.S. 1, 55 , 18 L. Ed. 2d 527, 561 , 87 S. Ct. 1428, 1458 (1967); see also People v. Prude, 66 Ill. 2d at 476 (“[T]he receiving of an incriminating statement by a juvenile, is a sensitive concern”).

In the case at bar, the majority enumerates the factors that lead it to conclude that G.O. confessed voluntarily and knowingly. My colleagues focus on the Miranda warnings read to G.O., the youth’s alleged intelligence, and the fact that he was never overtly threatened or harmed. The majority relies too on the absence of handcuffs in the interrogation room, and the presence of a youth officer. That G.O. was permitted to drink soda and use the washroom also removed the specter of coercion, according to the majority. The majority further contends that there was no attempt to frustrate contact between G.O. and his mother.

I do not agree with the majority’s reliance upon several of these factors. In particular, the majority fails to give sufficient emphasis to G.O.’s very young age. Facts that lead to one conclusion concerning the custodial interrogation of an adult can compel an entirely different conclusion when applied to the interrogation of a child. When reviewed with “the greatest care” (In re Gault, 387 U.S. at 55 , 18 L. Ed. 2d at 561 , 87 S. Ct. at 1458 ), and when truly mindful of G.O.’s tender years, the circumstances of G.O.’s confession lead ineluctably to the conclusion that his statements should have been suppressed.

At the time of the murder, G.O. was just one month past his thirteenth birthday. He was arrested late at night (between 10:15 and 10:45 p.m.) and brought to a police station. He had never been arrested before. No parent or other familiar person was with him. He was placed in an interrogation room, and left alone until approximately 12:30 a.m., when he was questioned by a detective and a youth officer. During this initial conversation with the authorities, G.O. did not admit involvement in the murder. He was questioned again at 3 and 3:30 a.m., by a variable combination of a youth officer, a prosecutor, and a police detective. He was never asked to sign a written waiver of his constitutional rights and no written account of his confession was ever submitted to G.O. for his review.

There is no indication in the record that G.O. had ever been in a police station before his arrest. Thus, he was presumably unfamiliar with the environment of a police station. For example, police frequently walk through the station wearing police uniforms, displaying badges signaling authority, and their service weapons and handcuffs are in plain sight. G.O., a boy barely in his teens, with no record of previous criminal involvement and no familiarity with police stations, was placed alone in a police station interrogation room, a climate inherently intimidating to a thirteen year old. Miranda v. Arizona, 384 U.S. 436, 457 , 16 L. Ed. 2d 694, 713-14 , 86 S. Ct. 1602, 1618-19 (1966). The coercion of the situation was compounded by interrogation, over a several hour period, by authority figures who were unknown to him. Too, the interrogation of G.O. continued in the absence of any person he knew, or in the absence of any person who at least appeared to affirmatively intervene on his behalf. See Haley v. Ohio, 332 U.S. 596, 599-600 , 92 L. Ed. 224 , 228, 68 S. Ct. 302, 304 (1948). The questioning occurred in the very early hours of the morning, and there is no evidence of record to suggest that G.O. slept during his custody at the police station, or whether he was fatigued at the time he allegedly confessed to his role in the shooting.

Individuals of greater age and experience could find these same circumstances overwhelming and coercive. To a boy of G.O’s youth and presumed naivete, these circumstances could be sufficiently overpowering as to raise a genuine doubt whether any confession made in this atmosphere would be the product of a free will. In Haley v. Ohio, 332 U.S. 596 , 92 L. Ed. 224 , 68 S. Ct. 302 (1948), a fifteen-year-old criminal defendant confessed to committing murder, after a five-hour interrogation by police. The Supreme Court suppressed the confession. Haley, 332 U.S. at 601 , 92 L. Ed. at 229, 68 S. Ct. at 304 . While the facts of Haley are distinguishable from the facts in the instant appeal, the Haley Court explained why confessions yielded by juveniles must be scrutinized particularly closely:

“[W]hen, as here, a mere child — an easy victim of the law — is before us, special care in scrutinizing the record must be used. Age 15 is a tender and difficult age for a boy of any race. He cannot be judged by the more exacting standards of maturity. That which would leave a man cold and unimpressed can overawe and overwhelm a lad in his early teens. This is the period of great instability which the crisis of adolescence produces. A 15-year-old lad, questioned through the dead of night by relays of police, is a ready victim of the inquisition. Mature men possibly might stand the ordeal from midnight to 5 a.m. But we cannot believe that a lad of tender years is a match for the police in such a contest. He needs counsel and support if he is not to become the victim first of fear, then panic. He needs someone on whom to lean lest the overpowering presence of the law, as he knows it, crush him. No friend stood at the side of this 15-year-old boy as the police, working in relays, questioned him hour after hour, from midnight until dawn. No lawyer stood guard to make sure that the police went so far and no farther, to see to it that they stopped short of the point where he became the victim of coercion. No counsel or friend was called during the critical hours of questioning.” Haley, 332 U.S. at 599-600 , 92 L. Ed. at 228-29, 68 S. Ct. at 304 .

In the case at bar, certain “findings” of the trial court, undisputed and relied upon by the majority, lack any evidentiary support in the record. For example, the trial court “found” that G.O. had ample opportunity to “contemplate” his statements during the several hours he was held at the police station (191 Ill. 2d at 54), and that he never used this time to ask questions or assert his rights. I do not believe that a boy who had only very recently reached his thirteenth birthday, who was alone and in unfamiliar surroundings, possesses, or should be expected to possess, the maturity and understanding to use the several hours he was under arrest to ask questions and assert his constitutional rights. There is no explanation by the trial court or in the record to support this finding. Probably there is no explanation. The alleged period of “contemplation” was more likely a period that amplified the fears naturally borne of such a coercive atmosphere. The prolonged periods of isolation between the interrogations predictably reinforced the intimidation inherent in the surroundings, thereby undermining G.O.’s will and the voluntariness of his confession.

The trial court reached the untenable conclusion that, because G.O. was not handcuffed, G.O. was not subject to coercion. Testimony adduced before the trial court showed that G.O. was not free to leave the station; he had been arrested and was in police custody. The police did not need to handcuff G.O. to make it clear to him that he was not free to move at will.

Further, there is an insufficient basis for the trial court to find that G.O. is a “very intelligent man.” The trial court’s finding that G.O. is a “very intelligent man,” and had “no problem” understanding his Miranda rights is flawed in two ways. 191 Ill. 2d at 53. First, it ignores the single most significant fact of this case: G.O. was just past his thirteenth birthday at the time of his arrest. He is not, as he was described by the trial court, a man. He is a boy. Second, the trial court’s finding of “intelligence” suggests that G.O. was sufficiently sophisticated to withstand the coercion inherent in the circumstances of his interrogation. It is extremely significant that the sole evidence regarding G.O.’s intelligence — upon which the trial court based its finding, a finding relied upon by the majority — was the testimony of his mother, on her son’s behalf, at the suppression hearing. She stated that he did “very well” in school and that he was a “smart kid.” She was not asked these questions in the context of his ability to understand Miranda warnings, or whether he could resist intimidation by adults. It is reasonable to conclude that she told the court that her son did very well at school in an effort to convince the court that he was not a criminal, and not to convince the court that he was resistant to any coercive interrogation occurring at the police station. Again, the evidence of record is insufficient to sustain a finding that G.O. was a “very intelligent man” who had “no problem” understanding his Miranda rights, and understood and knowingly waived this constitutional rights.

An intelligent relinquishment of the right against self-incrimination requires an individual to understand the entitlement to counsel and the right to remain silent promised by the Constitution. A knowing waiver of these constitutional rights also requires an understanding and comprehension of the serious consequences that can flow from confession to a crime. The burden is on the State to show that G.O., irrespective of his monosyllabic answers to his interrogators, comprehended the consequences of a waiver of Miranda rights. People v. Gilliam, 172 Ill. 2d 484, 501 (1996). The State failed to satisfy this burden. The record does not support a contrary conclusion. See Gallegos v. Colorado, 370 U.S. 49, 54 , 8 L. Ed. 2d 325, 328-29 , 82 S. Ct. 1209, 1212-13 (1962). In Gallegos, the Court recognized the limited ability of a minor to comprehend constitutional concepts:

“[A] 14 year old boy, no matter how sophisticated, is unlikely to have any conception of what will confront him when he is made accessible only to police. That is to say, we deal with a person who is not equal to the police in knowledge and understanding of the consequences of the questions and answers being recorded and who is unable to know how to protect his own interests or how to get the benefits of his constitutional rights.” Gallegos, 370 U.S. at 54 , 8 L. Ed. 2d at 328 , 82 S. Ct. at 1212 .

In addition, I am not persuaded that the mere presence of two youth officers during the course of the interrogation indicates that G.O.’s confession was voluntary. The record indicates these officers were silent as the detective and the assistant State’s Attorney questioned G.O. The youth officers, unknown to G.O., were only a mute presence in the interrogation room. The record does no reflect any genuine help given by the youth officers to G.O. See 304 Ill. App. 3d at 733. Also, I question whether the presence of a youth officer shields a youth’s rights from an overbearing interrogation. “Youth officers” are police officers, employed and summoned by law enforcement authorities. 705 ILCS 405/5 — 101, 5 — 405 (West 1998); Pub. Act 90 — 590, art. 2001, § 2001 — 10, eff. January 1, 1999. Thus, while they are intended to serve the laudable purpose of aiding youths in trouble, the fact remains that, as an adjunct of law enforcement, their interests are inevitably conflicted. A youth officer who essentially serves two masters — the youth and the State — may not adequately protect a juvenile’s rights from an interrogator who is also working on behalf of the government. The dual nature of the youth officer’s employment raises the possibility that the officer may not represent the youth’s rights with the vigor of a family member, or of an attorney who owes a fiduciary duty to the juvenile.

Moreover, the majority overlooks the questionable accuracy of the alleged statements obtained from G.O. by the assistant State’s Attorney and the detective that interviewed G.O. The prosecutor testified at the suppression hearing that he made notes of his interrogation of G.O. “after talking — or while talking to” G.O. Similarly, the detective testified that his notes of G.O.’s “confession” were part summary and part verbatim memorialization of the interrogation, and were not made until after the interrogation ended. In neither instance was a court reporter present to make a contemporaneous record of the conversations between G.O. and the persons that questioned him. In neither instance was G.O. shown notes or a written statement to review. The majority relies, therefore, on G.O.’s “confession” as remembered by the interrogators that heard the statements, and not as G.O. actually stated the confession.

As the majority notes, whether the police impeded a parent or guardian’s access to the youth is one of the material factors to be considered in the “totality” test. 191 Ill. 2d at 56-57. The evidence in this case does not support the majority’s conclusion that “the police never frustrated any attempt by respondent’s mother to confer with him.” 191 Ill. 2d at 56. The evidence suggests an effort by police to complete their questioning of G.O. before his mother could get to the station. Even if it is conceded that the mother’s statements as to whether she would come to the police station were ambiguous, the difficulty of the mother obtaining transportation at 12:15 a.m. cannot be doubted. She told the detective that she would have to rely on public transportation. Nothing in the record suggests that any officer, though not required to do so, offered to pick up and drive G.O.’s mother to the police station before interrogation began. To the contrary, and in spite of the mother’s declared difficulty in obtaining transportation, interrogation of G.O. began approximately 15 minutes after the police called his mother. It was inaccurate for the interrogating detective to inform one of the youth officers that G.O.’s mother refused to come to the station. At best, the conduct of the police in this regard should have a neutral effect on our evaluation; at worst, this fact should weigh in favor of suppressing the confession.

Worse than the evidentiary lapses in the majority holding, however, is the assumption that, at age 13, G.O. was sufficiently intelligent to knowingly waive his Miranda rights. Although the majority rejects the per se rule urged by the amicus curiae the Northwestern University Legal Clinic concerning admission of juvenile confessions, I urge my colleagues to revisit the issue. Indeed, I favor and recommend that the court adopt a per se rule whereby no confession given by a juvenile under the age of 15 would be admitted into evidence unless the youth is permitted, before or during interrogation, to consult with a lawyer or other adult, preferably a family member, who is personally interested in the child’s well-being. See Comment, Testing the Validity of Confessions and Waivers of the Self-Incrimination Privilege in the Juvenile Courts, 47 U. Kan. L. Rev. 1035 , 1055 (1999) (hereinafter, Testing the Validity). The adult acting on behalf of the juvenile must also be informed of the child’s constitutional rights. Testing the Validity, 47 U. Kan. L. Rev. at 1055. 10

Sound justifications favor adoption of a per se rule. Beneath a certain age, no person can reliably be believed to make a knowing waiver of the right against self-incrimination. Two well-known studies show that only a few persons under age 18 are able to grasp the meaning of the Miranda warnings. Testing the Validity, 47 U. Kan. L. Rev. at 1050 n.129, citing B. Ferguson & A. Douglas, A Study of Juvenile Waiver, 7 San Diego L. Rev. 39 (1970); T. Grisso, Juveniles’ Capacities to Waive Miranda Rights: An Empirical Analysis, 68 Cal. L. Rev. 1134 (1980); E. Maykut, Who Is Advising Our Children: Custodial Interrogation of Juveniles in Florida, 21 Fla. St. U. L. Rev. 1345 , 1368-1371 (1994) (citing same studies) (hereinafter, Who Is Advising Our Children). At age 14 and younger, the ability to understand the warnings falls dramatically. Who Is Advising Our Children, 21 Fla. St. U. L. Rev. at 1369-70. To presume that all adolescents are capable of understanding the right against self-incrimination and are able to make an informed waiver of that right ignores the basic maturation process common to all persons. We assume that adolescents lack the judgment and experience necessary to own a credit card (815 ILCS 140/7.2 (West 1998)), get a tatoo (720 ILCS 5/12 — 10 (West 1998)), consume alcohol (235 ILCS 5/6 — 16 (West 1998)), or drive an automobile (625 ILCS 5/6 — 103 (West 1998)). Yet the majority insists that youths of the same age can synthesize subtle constitutional concepts, and comprehend the life-altering consequences that will follow a waiver of those rights. Our adherence to this artificial distinction is nonsensical and should be abandoned. 11

Adoption of a per se rule will lend greater predictability to the admission of juvenile confessions into evidence. The totality of the circumstances test is facially appealing, because it incorporates the basic truth that all criminal defendants and all custodial interrogations are unique. Nonetheless, the very flexibility of the “totality” test makes it difficult to predict, during the course of an interrogation, which confessions will be deemed knowingly and voluntarily made and thus admissible into evidence and which confessions will be viewed as constitutionally infirm. For this reason, concrete guidelines governing confessions obtained from minors 14 years or younger will be of assistance to the police and courts in their determination of whether a statement will be admissible at trial. Who Is Advising Our Children, 21 Fla. St. U. L. Rev. at 1355.

For the foregoing reasons, I dissent from the majority holding that no error occurred in the admission of G.O.’s confession. G.O.’s finding of delinquency should be reversed and G.O. should be given a new trial at which his confession would not be admitted. I also urge the court to adopt the per se guideline.

A bill codifying a per se rule is currently pending before the Illinois legislature. 91st Ill. Gen. Assem., House Bill 3674, 2000 Sess. Among other things, the proposed statute would bar the admission into evidence of any statement obtained during a custodial interrogation of a minor under 15 years of age, in the absence of a parent or legal guardian, and without first allowing the minor to consult with counsel. 91st Ill. Gen. Assem., House Bill 3674, 2000 Sess.

Other states, including Indiana, Iowa and Wisconsin, have adopted per se rules identical or similar to the rule I urge the - court to consider here. See Lewis v. State, 288 N.E.2d 138 (Ind. 1972); In re Dino, 359 So. 2d 586 (La. 1978); In re E.T.C., 141 Vt. 375 , 449 A.2d 937 (1982); Commonwealth v. A Juvenile, 389 Mass. 128 , 449 N.E.2d 654 (1983); Conn. Gen. Stat. § 46b — 137(a) (1992); Okla. Stat. tit. 10, § 1109 (a) (Supp. 1994); Wis. Stat. § 48.23 (1987 & Supp. 1993); Iowa Code § 232.11 (1993).