Petition for Writ of Certiorari — Illinois v. Bernasco

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90-1176*

In The

Supreme Court of the United States

October Term, 1990

PEOPLE OF THE STATE OF ILLINOIS,

Petitioner,

VS.

BRIAN BERNASCO,

Respondent.

Petition For Writ Of Certiorari To The

Supreme Court Of Illinois

PETITION FOR WRIT OF CERTIORARI

ROLAND W. Burris

Attorney General

State of Illinois

Rosert J. Ruiz

Solicitor General

State of Illinois

TERENCE M. MabDseEN

NATHAN P. Mappox*

Assistant Attorneys General

-500 South Second Street

Springfield, IL 62706

(217) 782-9054

Attorneys for Petitioner

*Counsel of Record

QUESTION PRESENTED FOR REVIEW

I. Whether a defendant’s confession can be suppressed

as having been obtained in violation of the defendant’s

right to due process of law, where the confession was

voluntarily given, proper Miranda warnings were given

prior to the confession, the police officer’s questioning

defendant had no reason to believe defendant’s waiver of

rights under Miranda was anything other than knowing

and intelligent and there was no police misconduct or

overreaching causally related to defendant’s inability to

make a knowing and intelligent waiver of rights under

Miranda.

PARTIES TO THE ACTION

Brian Bernasco, respondent, was defendant in the

Circuit Court of Madison County, Illinois, appellee in the

Appellate Court of Illinois and appellee in the Supreme

Court of Illinois.

The People of the State of Illinois, petitioner, were

plaintiff in the Circuit Court of Madison County, Illinois,

appellant in the Appellate Court of Illinois and appellant

in the Supreme Court of Illinois.

QUESTION PRESENTED FORK REVIEW

PARTIES TO THE ACTION

ili

TABLE OF CONTENTS

a. ee ee

OPINIONS IN THE CASE

JURISDICTIONAL GROUNDS

CONSTITUTIONAL PROVISIONS INVOLVED

SrpAseemems OF if CASB................

ARGUMENT

CONCLUSION

A DEFENDANT’S CONFESSION CANNOT BE

SUPPRESSED AS HAVING BEEN OBTAINED IN

VIOLATION OF THE DEFENDANT'S RIGHT TO

DUE PROCESS OF LAW, WHERE THE CONFES-

SION WAS VOLUNTARILY GIVEN, PROPER

MIRANDA WARNINGS WERE GIVEN PRIOR TO

THE CONFESSION, THE POLICE OFFICER’S

QUESTIONING DEFENDANT HAD NO REA-

SON TO BELIEVE DEFENDANT’S WAIVER OF

RIGHTS UNDER MIRANDA WAS ANYTHENG

OTHER THAN KNOWING AND INTELLIGENT

AND THERE WAS NO POLICE MISCONDUCT

OR OVERREACHING CAUSALLY RELATED TO

DEFENDANT’S INABILITY TO MAKE A KNOW-

ING AND INTELLIGENT WAIVER OF RIGHTS

UNDER MIRANDA

Ps a ee bk Go 8 ee OSS DAA SS ee ON ee ee

a. a ee ee a a ee oe ee eS ee Se SO. 8,8 8 eS SS DS DD

TABLE OF AUTHORITIES

Page

CASES

Colorado v. Connelly, 479 U.S. 157 (1986)......... passim

Miller v. Dugger, 838 F.2d 1530 (11th Cir 1988)...... 11

Miranda v. Arizona, 384 U.S. 436 (1966).......... passim

Moran v. Burbine, 475 U.S. 412 (1986)................ 11

People v. Bernasco, 138 Ill.2d 349, 562 N.E.2d 958

EPEC CREes DRL UULERUUSE CASEMENT ONMR REM E eR eas passim

People v. Bernasco, 185 Ill.App.3d 480, 541 N.E.2d

Fe SO ME, NE ho Sr KKK SE RO ROAR Oe 1, 6, 7, 10

United States v. Janis, 428 U.S. 433 (1976)............ 12

United States v. Yunis, 859 F.2d 953 (D.C.Cir. 1988) .... 11

No.

In The

Supreme Court of the United States

October Term, 1990

PEOPLE OF THE STATE OF ILLINOIS,

Petitioner,

VS.

BRIAN BERNASCO,

Respondent.

Petition For Writ Of Certiorari To The

Supreme Court Of Illinois

PETITION FOR WRIT OF CERTIORARI

OPINIONS IN THE CASE

People v. Bernasco, 138 I1]1.2d 349, 562 N.E.2d 958

(1990) (Appendix A);

People v. Bernasco, 185 Ill.App.3d 480, 541 N.E.2d

774 (5th Dist. 1989) (Appendix B).

JURISDICTIONAL GROUNDS

The Illinois Supreme Court’s opinion sought to be

reviewed is dated October 18, 1990. No motions for

rehearing or extension have been filed. This Court has

jurisdiction to review the judgment of the Illinois

Supreme Court conferred by 28 U.S.C. § 1257(a).

CONSTITUTIONAL PROVISIONS INVOLVED

Constitution of the United States, Amendment V

. nor shall be compelled in any criminal case

to be a witness against himself... .

Constitution of the United States, Amendment XIV

. nor shall any State deprive any person of

life, liberty, or property, without due pro-

cess...

—

STATEMENT OF THE CASE

| This cause concerns a petition for writ of cert.orari to

the Supreme Court of Illinois, seeking review of that

court’s opinion in People v. Bernasco, 138 Ill.2d 349, 562

N.E.2d 958 (1990). In Bernasco, the Illinois Supreme Court

upheld decisions of the trial court and Illinois Appellate

Court suppressing a confession made by respondent,

Brian Bernasco (referred to herein as defendant).

On December 30, 1986, the juvenile officer of the

Collinsville police department told the defendant's father

that he wanted to talk to the defendant at the station.

When the defendant and his father arrived at the police

station the juvenile officer told them that a detective

would do the questioning. According to the testimony of

the defendant’s father, Detective Zukosky appeared and

stated: “You can come in now.” The defendant's father

said that he then got up to go in with the defendant, but

was told by the detective, “[N]o, you sit and wait here.”

Detective Zukosky, however, testified that he did not

recall the father wanting to accompany the defendant nor

did he tell the father that he could not do so.

Detective Zukosky took the defendant to the detec-

tive’s office located in the basement of the Collinsville

police station. The defendant, who was 17 years old and

had never been arrested or interrogated by the police,

testified that he was scared when he was taken down-

stairs. Officer Borkowski joined the defendant and Detec-

tive Zukosky in the detective’s office. The door to the

office was left open. The defendant was given a copy of

his Miranda rights and Officer Borkowski testified that he

read each section to the defendant, who then initialed

each section. The defendant was asked if he had any

questions about his rights, and if he understood them,

and he acknowledged that he did understand them. The

defendant then signed a waiver of rights form which was

witnessed by Officer Borkowski and Detective Zukosky.

Officer Borkowski then read the defendant his rights

as printed on the “voluntary statement forms” used to

take the defendant’s statement. The defendant then gave

an oral statement in which he admitted his involvement

in several burglaries, and Officer Borkowski reduced the

statement to writing at the defendant’s request. The

defendant was then given the statement to read, and

Detective Zukosky testified that he read it aloud. The

defendant then initialed the scratch mark that Borkowski

had made and signed the voluntary statement. Detective

Zukosky testified that there was nothing in the defen-

dant’s demeanor or his answers to questions that would

indicate that he did not understand what his rights were.

He stated that the defendant did not seem to have any

trouble grasping the questions he was asked, and that he

answered in a normal manner, giving logical answers. No

threats or promises were made to the defendant and he

did not appear to be intoxicated or under the influence of

any drugs.

On cross-examination, Detective Zukosky testified

that he did not know if the defendant was in school or

what level of education the defendant had attained.

Zukosky also agreed that he did not know anything

about the defendant’s reading ability, comprehension

ability, or IQ. Detective Zukosky also stated that he did

not know if someone with a fourth-grade reading and

comprehension level could understand legal terms. Offi-

cer Borkowski similarly acknowledged that he was not

familiar with the defendant’s academic credentials or his

reading ability.

Don Mattingly, a school psychologist employed by

the Parando Special Education District in Red Bud, testi-

fied for the defendant at the suppression hearing. Mat-

tingly has a bachelor’s and a master’s degree in

psychology from Eastern Illinois University and had

spent the last 12 years working as a school psychologist.

Mattingly evaluated the defendant in March of 1986,

approximately nine months prior to the defendant's inter-

rogation, to determine whether he was qualified for spe-

cial education services. After evaluating the defendant,

who was attending reguiar classes at the time, Mattingly

concluded that the defendant did not qualify for the

Collinsville special education programs. Mattingly also

concluded that the defendant had a full scale IQ of 80,

and he stated that the 80 to 89 range is referred to as the

slow learner or low average range. Mattingly also deter-

mined that the defendant’s reading skills were at the

beginning to middle fourth-grade level.

The psychologist testified that when the two police

officers interviewed the defendant in the police station,

the defendant would have found the circumstances intim-

idating. On cross-examination, however, Mattingly also

indicated that anyone, regardless of educational back-

ground, who was being interrogated by two police offi-

cers would find the circumstances intimidating. In such a

situation, Mattingly stated that the defendant would

probably agree “to most everything that was said to him

to get himself out of the situation.”

Mattingly further stated that in his opinion defen-

dant did not have the ability to understand legal terms.

He agreed that it was unlikely that the defendant could

understand words like “interrogate,” “court-appointed

attorney,” “intimidation,” “immunity,”- or “waiver.” He

also testified, however, that the defencant probably had

an idea what a lawyer is, and would likely understand

the phrases “I do not have to talk with any Collinsville

police officer, unless I want to” and “I know I can refuse

to answer any questions.”

The defendant’s father, Carl Bernasco, testified that

the defendant dropped out of school in the ninth grade

and had never before been arrested or interrogated by the

police. Mr. Bernasco testified that the only reason he did

not go with his son when he was being questioned by the

police was because Detective Zukosky told him that he

could not. |

The defendant, Brian Bernasco, also testified at the

suppression hearing. He stated that the officer handed

him a copy of the Miranda waiver and read it to the

defendant at a normal pace. The defendant admitted that

he initialed and signed the waiver of rights forms, but

stated that he was not paying attention, was scared, and

did not understand what the waiver meant. The defen-

dant also denied that the officer asked him if he under-

stood his rights after each section of the Miranda waiver

was read to him. Instead, the defendant stated that the

officer told him to initial each paragraph, and then when

he finished reading the entire document, he was asked if

he understood his rights. The defendant admitted that he

told the officer that he understood his rights when he was

asked.

The defendant also admitted initialing the Miranda

rights waiver at the top of the voluntary statement form

but denied that Detective Zukosky readvised him of his

rights. After signing the waiver forms, the defendant was

asked to tell everything he knew. The defendant gave his

statement and Detective Zukosky wrote it down. The

defendant admitted that the information contained in the

written statement came from him and that he read it over,

but stated that he did not read it out loud. The defendant

admitted signing the voluntary statement forms, but said

that he did not understand at the time of the questioning

that he had a right to refuse to speak to the police and

had a right to leave when he wanted. People v. Bernasco,

185 Ill.App.3d 480, 482-485, 541 N.E.2d 774, 775-776 (5th

Dist. 1989).

Based upon the above evidence, the trial court

granted defendant's motion to suppress the confession. In

doing so, the trial court found that defendant’s confes-

sion was not voluntary and that the confession was a

product of his sub-normal intelligence, his inability to

comprehend his rights and his fright of the situation.

The trial court further stated that it was not suggest-

ing in its findings that the Collinsville police, in any way,

overreached or threatened or coerced defendant into giv-

ing his statement. Bernasco, 185 Ill.App.3d at 485-486, 541

N.E.2d 777-778 (trial court order reproduced in appellate

court opinion). The State appealed the order suppressing

the confession to the Illinois Appellate Court. That court

reversed the trial court’s finding that defendant's state-

ment was involuntary, citing this Court’s decision in Colo-

rado v. Connelly, 479 U.S. 157 (1986), for the proposition

that police coercion is a necessary predicate of such a

finding. However, the appellate court affirmed the sup-

pression of the confession based upon the trial court’s

finding that defendant did not knowingly waive his Mir-

anda rights. Bernasco, 185 Ill.App.3d at 492-494, 541

N.E.2d at 781-782. In this opinion, the appellate court

noted that a state constitution can give broader rights

than the Federal Constitution, but then specifically stated

that it need not decide in this case whether the Illinois

Constitution gives broader protection than the Federal

Constitution to defendants such as this defendant. Ber-

nasco, 185 Ill.App.3d at 490, 541 N.E.2d at 780.

Following the appellate court decision, the State

appealed to the Illinois Supreme Court. That court

affirmed the appellate court decision. People v. Bernasco,

138 IIl.2d 349, 562 N.E.2d 958 (1990). The Illinois Supreme

Court expressly based its opinion on Federal Constitu-

tional law, though, in dicta, it stated that had either of the

parties raised the question as a matter of state law it

would have ruled the same way. Bernasco, 138 IIl.2d at

365-366, 562 N.E.2d at 965. Without questioning the fac-

tual finding that no police misconduct was involved in

obtaining defendant’s confession, the court upheld sup-

pression of the confession because defendant had not

knowingly and intelligently waived his rights under Mir-

anda.

ARGUMENT

A DEFENDANT’S CONFESSION CANNOT BE SUP-

PRESSED AS HAVING BEEN OBTAINED IN VIOLA-

TION OF THE DEFENDANT’S RIGHT TO DUE

PROCESS OF LAW, WHERE THE CONFESSION WAS

VOLUNTARILY GIVEN, PROPER MIRANDA WARN-

INGS WERE GIVEN PRIOR TO THE CONFESSION,

THE POLICE OFFICER’S QUESTIONING DEFEN-

DANT HAD NO REASON TO BELIEVE DEFEN-

DANT’S WAIVER OF RIGHTS UNDER MIRANDA

WAS ANYTHING OTHER THAN KNOWING AND

INTELLIGENT AND THERE WAS NO POLICE MIS-

CONDUCT OR OVERREACHING CAUSALLY

RELATED TO DEFENDANT’S INABILITY TO MAKE A

KNOWING AND INTELLIGENT WAIVER OF RIGHTS

UNDER MIRANDA.

In Colorado v. Connelly, 479 U.S. 157 (1986), this Court

reviewed a decision of the Colorado Supreme Court

which had suppressed a confession as a violation of due

process (U.S. Const., Amend. XIV) because the defendant

had involuntarily waived his rights under Miranda v.

Arizona, 384 U.S. 436 (1966), even though the involuntary

nature of the waiver was not related to police miscon-

duct. In reversing the Colorado Supreme Court’s deci-

sion, this Court stated: “[aJosent police misconduct

causally related to the confession, there is simply no basis

for concluding that any state actor has deprived a crimi-

nal defendant of due process of law.” 479 U.S. at 164. In

the instant case, the Illinois Supreme Court held that a

confession must be suppressed as a violation of due

process because the confession was made without a

knowing and intelligent waiver of rights under Miranda,

even though the defendant's inability to make a knowing

and intelligent waiver of rights was not related to police

misconduct. As in Connelly, this Court should grant cer-

tiorari and reverse the Illinois Supreme Court's decision

because absent police misconduct causally related to the

confession, there is simply no basis for concluding that

any state actor has deprived a criminal defendant of due

process of law.

Respondent, Brian Bernasco (hereinafter referred to

as defendant), was brought to the Collinsville, Illinois

Police Department by his father, at the request of the

police. At the station, defendant was questioned by two

police officers concerning several burglaries and he sub-

sequently made an oral confession and signed a written

confession admitting his involvement in the burglaries.

Prior to the questioning, defendant was given a copy of

his Miranda rights, each section of the form containing the

Miranda rights was read to defendant, and defendant

initialed each section. Defendant stated that he under-

stood those rights and he signed a waiver of rights form.

Defendant was again read his rights on a voluntary state-

ment form used by the police department. Defendant's

statement was reduced to writing on the form and he

signed the statement. The police testified that there was

nothing in defendant’s demeanor or his answers to ques-

tions that would indicate that he did not understand

what his rights were. Defendant did not seem to have

trouble grasping the questions and he answered in a

normal manner, giving logical answers. No threats or

promises were made to defendant and he did not seem to

be intoxicated or under the influence of drugs. People v.

Bernasco, 185 Ill.App.3d 480, 481-482, 541 N.E.2d 774, 775

(5th Dist. 1989). In its order suppressing the confession,

the trial court stated: “The Court is not suggesting in

these findings that the Collinsville Detectives, in any way,

overreached or threatened or coerced the Defendant into

giving his statement in this case[.]” Id., 185 Ill.App.3d at

486, 541 N.E.2d at 777.

While there is no evidence of police misconduct or

overreaching in this case, nor any evidence that the police

were aware of any difficulty defendant may have had in

knowingly and intelligently waiving his Miranda rights,

there was testimony concerning defendant’s ability in this

regard. This evidence showed that defendant, who was

17 years old at the time of the questioning, had dropped

out of school in the ninth grade and read and compre-

hended at a fourth grade level. Defendant also had an IQ

of 80, with the 80-89 range referred to as the slow learner

or low average range. Id., 185 [ll.App.3d at 483-484, 541

N.E.2d at 776. Based upon this and other testimony from

a school psychologist and testimony from defendant and

his father, the trial court found that defendant’s confes-

sion was the product of his sub-normal intelligence, his

inability to comprehend what his rights were, and his

fright of the situation. Id., 185 Ill.App.3d at 486, 541

N.E.2d at 777. The trial court’s suppression of the confes-

sion was affi1med by the Appellate Court of Illinois /d.,

and, in turn, by the Illinois Supreme Court. People v.

Bernasco, 138 Ill.2d 349, 562 N.E.2d 958 (1990).

Petitioner contended in the trial court, in the appel-

late court and in the state supreme court that the evi-

dence in this case was insufficient to establish that

defendant’s waiver of rights was not knowingly and

intelligently made. However, petitioner does not request

this Court to review that aspect of the lower courts’

findings. Rather, even accepting that defendant’s waiver

of rights under Miranda was not knowing and intelligent,

it is petitioner’s contention that the resultant confession

cannot be suppressed as a violation of due process where

there was no police misconduct related to the defendant's

inability to knowingly and intelligently waive his rights.

This argument was specifically presented to and rejected

by the Illinois Supreme Court. People v. Bernasco, 138

Ill.2d at 366, 562 N.E.2d at 965.

In its decision affirming the suppression of the con-

fession, the Illinois Supreme Court noted that pursuant to

a pre-Connelly decision from this Court a valid waiver of

rights under Miranda has two components. The waiver

must be voluntary and it must be knowingly and intel-

ligently made. Id., 138 Ill.2d at 354, 562 N.E.2d at 960;

citing, Moran v. Burbine, 475 U.S. 412 (1986). The court

then analyzed Moran and Connelly, as well as post-Con-

nelly decisions, to determine whether the knowing and

intelligent aspect of the Miranda waiver survived Con-

nelly, and whether that aspect of the waiver has a consti-

tutional basis.’ After this analysis the court found that in

' The court’s difficulty with this question is not unique.

Compare, United States v. Yunis, 859 F.2d 953 (D.C.Cir. 1988) (in

Connelly, the question of whether the defendant confessed

knowingly and intelligently was evidently irrelevant, thus, a

defendant’s knowledge of his rights appears to be wholly

subordinate to the appraisal of voluntariness) with Miller v.

Dugger, 838 F.2d 1530 (11th Cir. 1988) (we do not read the

(Continued on following page)

Connelly this Court did not overrule Burbine’s require-

ment that a Miranda waiver be intelligent and knowing as

well as voluntary: “from a Federal constitutional view-

point ... where a defendant confesses after being given

Miranda warnings . . . both intelligent knowledge and

voluntariness remain requirements” for a valid waiver.

Bernasco, 138 Ill.2d at 357, 562 N.E.2d at 961.

The fatal flaw in the court’s analysis is not its finding

that both aspects of a valid waiver of rights under Mir-

anda survive this Court’s Connelly opinion. Rather, the

flaw is the disparate treatment the court accords to the

two aspects of the waiver. The court recognized this

Court’s holding that state action must be causally related

to the involuntary nature of a confession before a viola-

tion of due process may be found. Nonetheless, the court

suppressed defendant’s confession on due process

grounds because he had not knowingly and intelligently

waived his Miranda rights, even though there was no

police misconduct (i.e. state action) causally related to

defendant’s inability to intelligently and knowingly

waive his rights under Miranda. Such a suppression

extracts a high price from the criminal justice system and

returns to that system nothing at all.

“Jurists and scholars uniformly have recognized that

the exclusionary ruie imposes a substantial cost on the

societal interest in law enforcement by its proscription of

what concededly is relevant evidence.” United States v.

(Continued from previous page)

Connelly decision as demonstrating an intent by the Supreme

Court to eliminate the distinction between voluntariness and

knowing waivers).

Janis, 428 U.S. 433, 448-449 (1976). “The purpose of

excluding evidence seized in violation of the Constitution

is to substantially deter future violations of the Constitu-

tion.” Connelly, 47 US. at 166. Exclusion of the confes-

sion in this case imposes the substantial cost of the

exclusionary rule, yet it will not serve to deter future

violations of the Constitution because no individual

involved in this case, particularly no agent of the state,

committed any act of omission or commission which can

be identified as having been a violation of defendant's

constitutional rights.

Petitioner does not contend that a confession may

never be suppressed on due process grounds because the

defendant’s waiver of rights under Miranda was not

knowingly and intelligently made. Had the police been

aware of defendant’s inability to knowingly and intel-

ligently waive his rights in the instant case, and had they

then “exploited this weakness with coercive tactics” (Con-

nelly, 479 U.S. at 165), the confession would likely be

subject to suppression. However, absent such police mis-

conduct, a confession should not be suppressed on due

process grounds. As this Court stated in Connelly: “[t]he

sole concern of the Fifth Amendment, on which Miranda

was based, is governmental coercion. .. . Miranda protects

defendants against coercion leading them to surrender

rights protected by the Fifth Amendment; it goes no

further than that.” 479 U.S. at 170.

In this case there was no police misconduct, no police

overreaching, no “governmental coercion.” Nonetheless,

on Federal constitutional due process grounds the Illinois

Supreme Court upheld the suppression of defendant's

confession. While the court stated that it would have

suppressed the confession as a matter of state law, this

language forms no basis for the court’s decision. As the

court stated: “we need not further consider how or

whether our own State’s common, statutory or constitu-

tional law would bear on the issues before us, because the

parties have not raised such questions, and because Fed-

eral constitutional principles by themselves are sufficient

to inform our present judgment.” Bernasco, 138 Ill.2d at

365-366, 562 N.E.2d at 965. Therefore, this question is

properly before this Court, and this Court should grant

certiorari and reverse the decision of the Illinois Supreme

Court.

CONCLUSION

WHEREFORE, for the foregoing reasons, petitioner

respectfully requests that this Honorable Court grant cer-

tiorari to review the judgment of the Illinois Supreme Court.

Respectfully submitted,

ROLAND W. Burris

Attorney General

State of Illinois

Rosert J. Ruiz

Solicitor General

State of Illinois

TERENCE M. MapsEN

NATHAN P. Mappox*

Assistant Attorneys General

500 South Second Street

Springfield, IL 62706

(217) 782-9054

Attorneys for Petitioner

* Counsel of Record

App. 1

(No. 69035.-Judgment affirmed.)

THE PEOPLE OF THE STATE OF ILLINOIS,

Appellant, v. BRIAN BERNASCO, Appellee.

Opinion filed October 18, 1990.

JUSTICE STAMOS delivered the opinion of the court:

In the circuit court of Madison County, the 17-year-

old defendant, Brian Bernasco, was charged by informa-

tion with two counts of residential] burglary (Ill. Rev. Stat.

1985, ch. 38, par. 19-3). That court suppressed his confes-

sion, finding that, though the confession was not coerced

or otherwise the product of improper police conduct, and

though the confession was preceded by Miranda warnings

(see Miranda v. Arizona (1966), 384 U.S. 436, 16 L. Ed. 2d

694, 86 S. Ct. 1602), defendant’s intelligence level was so

low that his Miranda waiver and his confession were

neither voluntary nor knowing.

The appellate court affirmed. (195 Ill. App. 3d 480.)

The appellate court held that, even though defendant's

Miranda waiver and confession were voluntary within the

meaning of the fifth and fourteenth amendments (U.S.

Const., amends. V, XIV; see Colorado v. Connelly (1986),

479 U.S. 157, 93 L. Ed. 2d 473, 107 S. Ct. 515), his Miranda

waiver was invalid because, as the tria! court found, it

was not knowing and intelligent (see Moran v. Burbine

(1986), 475 U.S. 412, 421, 89 L. Ed. 2d 410, 421, 106 S. Ct.

1135, 1141; People v. Turner (1973), 56 Ili. 2d 201, 205-07).

(185 Ill. App. 3d at 490.) The appellate court acknowl-

edged that in given cases the confessions of subnormally

intelligent defendants have been held admissible, but the

court observed that the question of intelligent waiver is a

ater

App. 2

factual one that may depend in part on such circum-

stances as a defendant’s background and conduct. The

appellate court concluded that the trial court’s finding in

the present cause was not against the manifest weight of

the evidence. We then allowed the State’s petition for

leave to appeal (107 Ill. 2d R. 315(a)) and now affirm.

The chief issue is whether a valid Miranda waiver

must be knowing and intelligent in addition to being free

from coercion or other misconduct. The secondary issue

is whether the trial court’s finding, that defendant did

not knowingly and intelligently waive his Miranda rights

or confess, was in accord with the manifest weight of the

evidence.

The facts of this cause were fully set forth in the

appellate court’s opinion. We will refer to them as neces-

sary. Briefly, defendant was of subnormal intelligence and

was questioned by police outside his father’s presence

and on the assumption that he could understand Miranda

warnings. At trial, his father testified that defendant had

left school in the ninth grade and had had no prior police

experience. A psychologist testified that defendant could

not understand certain Miranda terminology and that he

would probably have agreed to almost anything said to

him if doing so would end his interrogation. Defendant

testified that he had not been paying attention to his

Miranda waiver form, had not understood it, and had

been scared.

The State contends that, in Colorado v. Connelly (1986),

479 U.S. 157, 93 L. Ed. 2d 473, 107 S. Ct. 515, the Supreme

App. 3

Court decisively rejected the theory on which the appel-

late court relied and for which defendant argues: that a

Miranda waiver and resulting confession must be know-

ing and intelligent as well as constitutionally “voluntary”

in order to be admissible. In turn, the appellate court and

defendant rest their view on Moran v. Burbine (1986), 475

U.S. 412, 89 L. Ed. 2d 410, 106 S. Ct. 1135. We hold that

the State’s contention is not supported by Connelly and

that Burine’s requirement of intelligent knowledge as well

as of voluntariness continues to be the law.

Connelly involved a defendant who, while mentally

ill, had confessed to a murder. He had first confessed

spontaneously upon approaching a police officer in the

street. He had then confessed twice more after being

given Miranda warnings. No improper police coercion

had accompanied his confessions.

The Colorado Supreme Court held that, as a matter of

due process, voluntariness required that the first, sponta-

neous confession have been “the product of a rational

intellect and a free will,” regardless of whether there had

been improper coercion; that, despite any lack of official

coercive origin, the confession’s very admission into evi-

dence would have constituted State action implicating the

fourteenth amendment’s due process clause; and that,

because of evidence that the defendant had been suffer-

ing from a serious mental disorder, the trial court cor-

rectly found that he had lacked a rational intellect and

free will and that the confession had thus been involun-

tary. (People v. Connelly (Colo. 1985), 702 P.2d 722, 728-29.)

As for the subsequent confessions, the Colorado Supreme

Court likewise held that, because of the evidence of the

defendant’s mental condition, the trial court correctly

| |

App. 4

concluded that the State had failed to prove clearly and

convincingly that the defendant’s attempted waivers of

Miranda rights were free and intelligent so as to be volun-

tary and thus effective. People v. Connelly, 702 P.2d at 729.

On review, the United States Supreme Court held

that, in order to satisfy the fourteenth amendment’s due

process requirements as to voluntariness, it is sufficient

that a confession not be causally related to coercive police

conduct. (Colorado v. Connelly, 479 U.S. at 167, 93 L. Ed. 2d

at 484, 107 S. Ct. at 522.) The Court rejected any conclu-

sion that, “by itself and apart from its relation to official

coercion,” a defendant’s mental condition might deter-

mine constitutional voluntariness. (Connelly, 479 U.S. at

164, 93 L. Ed. 2d at 482, 107 S. Ct. at 520.) Accordingly,

any voluntariness inquiries into a confessing defendant's

state of mind, “inquiries quite divorced from any coer-

cion brought to bear on the defendant by the State,”

should be left for resolution by State evidence rules per-

taining to reliability; such matters are not governed by

the fourteenth amendment’s due process clause. Connelly,

479 U.S. at 166-67, 93 L. Ed. 2d at 484, 107 S. Ct. at 522.

The Connelly Court explained that it was reversing

the Colorado judgment in its entirety because the Court

believed that the judgment’s underlying analysis had

been influenced by an erroneous view of constitutional

voluntariness requirements. However, the Court explic-

itly noted that, on remand, the Colorado court could

reconsider other issues not inconsistent with the Federal

opinion (Connelly, 479 U.S. at 171 n.4, 93 L. Ed. 2d at 487

n.4, 107 S. Ct. at 524 n.4) - issues that apparently could

App. 5

include the separate question whether defendant’s Mir-

anda waivers had been intelligent and knowing (see Con-

nelly, 479 U.S. at 184 n.5, 93 L. Ed. 2d at 495 n.5, 107 S. Ct.

at 531 n.5 (Brennan, J., joined by Marshall, J., dissenting)).

Though it is clear from the Connelly majority opinion

and the cited dissent that a confession, made after a

Miranda waiver, might still be suppressed on grounds

that Miranda's protections had not been intelligently and

knowingly waived, it is not perfectly clear from the Con-

nelly majority opinion whether such suppression would

have a constitutional basis. Nevertheless, defendant

would ground suppression in the constitutional jurispru-

dence of Burbine, and we agree that Burbine has continu-

ing vitality in this regard.

According to Burbine, an inquiry into Miranda waiver

has “two distinct dimensions”: .1) whether there was a

free, uncoerced choice and (2) whether there was aware-

ness of the right and the consequences of abandoning it.

(Burbine, 475 U.S. at 421, 89 L. Ed. 2d at 421, 106 S. Ct. at

1141; accord Colorado v. Spring (1987), 479 U.S. 564, 573, 93

L. Ed. 2d 954, 965, 107 S. Ct. 851, 857.) A valid Miranda

waiver would thus require “both an uncoerced choice and

the requisite level of comprehension.” (Emphasis added.)

(Burbine, 475 U.S. at 421, 89 L. Ed. 2d at 421, 106 S. Ct. at

1141.) Burbine traced its requirements of voluntariness

and intelligent knowledge to Miranda itself and beyond.

Burbine, 475 U.S. at 421, 89 L. Ed. 2d at 420-21, 106 S. Ct.

at 1140-41 (“ “provided the waiver is made voluntarily,

knowingly and intelligently’ ”), quoting Miranda, 384 U.S.

at 444, 16 L. Ed. 2d at 707, 86 S. Ct. at 1612.

App. 6

In Burbine, the police had failed to inform the respon-

dent that an attorney, whom the respondent’s sister had

attempted to retain for him, had telephoned the police

less than an hour before the respondent’s interrogation

and had been told by the police that the respondent

would not be interrogated until the next day. (Burbine,

475 U.S. at 415-17, 89 L. Ed. 2d at 417-18, 106 S. Ct. at

1138-39.) The Court found no doubt about the respon-

dent’s “comprehension of the full panoply of [Miranda]

rights * * * and of the potential consequences of a decision

to relinquish them.” (Burbine, 475 U.S. at 422, 89 L. Ed. 2d

at 421, 106 S. Ct. at 1141.) The Court, viewing Miranda as

establishing protections against the “compulsion inherent

in custodial interrogation,” reaffirmed that “full compre-

hension of the rights to remain silent and request an

attorney [is] sufficient to dispel whatever coercion is

inherent in the interrogation process.” (Burbine, 475 U.S.

at 425, 427, 89 L. Ed. 2d at 423, 424, 106 S. Ct. at 1143,

1144.) The unethical failure to inform the respondent of

the attorney’s call did not deprive him of “knowledge

essential to his ability to understand the nature of his

rights and the consequences of abandoning them.” (Bur-

bine, 475 U.S. at 423-24, 89 L. Ed. 2d at 422, 106 S. Ct. at

1142.) Accordingly, “[b]ecause respondent’s voluntary

decision to speak was made with full awareness and

comprehension of all the information Miranda requires

the police to convey,” his Miranda waivers were valid.

Burbine, 475 U.S. at 424, 89 L. Ed. 2d at 422, 106 S. Ct. at

1142.

In arguable contrast to the twin Burbine-recognized

requirements of voluntariness and intelligent knowledge

for Miranda waivers, the Connelly Court initially declared

App. 7

with seeming breadth that admissibility of a confession

by a defendant whose mental state interfered with

“ ‘rational intellect’ ” and “ ‘free will’ ” is to be governed

by State evidence rules “rather than by our previous

decisions regarding coerced confessions and Miranda

waivers.” (Connelly, 479 U.S. at 159, 93 L. Ed. 2d at 479,

107 S. Ct. at 518.) Burbine was a previous decision regard-

ing Miranda waivers, albeit one announced only nine

months before.

However, Connelly merely means that, in general,

issues of intelligent knowledge are separate from issues

of voluntariness. The Connelly opinion was actually

addressing (1) an initial confession given under circum-

stances requiring no Miranda warning (hence involving

no question of waiver), the voluntariness of the confes-

sion being at issue, and (2) subsequent confessions given

after Miranda warnings, the voluntariness of the Miranda

waivers being at issue. Thus - in a narrower vein than

that in which the opinion’s opening sentences might cur-

sorily be read —- the Court continued that, in determining

whether a confession is voluntary where there has been no

official coercion, inquiries into the state of a confessing

defendant’s mind, when “divorced from any coer-

cion * * * by the State,” are to be resolved by State

evidence law rather than by the due process clause of the

fourteenth amendment. (Connelly, 479 U.S. at 166-67, 93 L.

Ed. 2d at 484, 107 S. Ct. at 522.) Likewise, in determining

whether a Miranda waiver is voluntary, a court is to consider

the presence or absence of coercion emanating from offi-

cial sources, not coercion that is of unofficial origin or

App. 8

that flows merely from a defendant’s psychological pecu-

liarities. Connelly, 479 U.S. at 170-71, 93 L. Ed. 2d at

486-87, 107 S. Ct. at 523-24.

We observe that at no point did the Connelly Court

overrule Burbine’s and other cases’ requirement that a

Miranda waiver be intelligent and knowing as well as

voluntary. The Connelly opinion analyzed merely the con-

stitutional voluntariness component of a confession’s

admissibility and of a waiver’s validity. Connelly, 479 U.S.

at 167, 170, 93 L. Ed. 2d at 484, 486, 107 S. Ct. at 522, 523

(citing, inter alia, Burbine).

Thus, from a Federal constitutional viewpoint, only

voluntariness, rather than intelligent knowledge, ordi-

narily need be shown in the case of a confession (such as

the Connelly respondent's first one) that is given under

circumstances not requiring a Miranda warning. But,

where a defendant confesses after being given Miranda

warnings (as in the case of the subsequent Connelly con-

fessions), both intelligent knowledge and voluntariness

remain requirements for assuring that a defendant’s Mir-

anda waiver reflects Miranda's “carefuily drawn

approach”: its “subtle balance” between the need for

police questioning and the coercive pressures inherent in

such questioning. See Burbine, 475 U.S. at 426-27, 89 L.

Ed. 2d at 424, 106 S. Ct. at 1143-44.

This understanding of Connelly and Burbine has been

confirmed by later decisions. (See Colorado v. Spring

(1987), 479 U.S. 564, 572, 93 L. Ed. 2d 954, 965, 107 S. Ct.

851, 857 (Miranda waiver must be made “ ‘voluntarily,

knowingly and intelligently’ ”); cf. Illinois v. Perkins

(1990), 495 U.S. __, 110 L. Ed. 2d 243, 110 S. Ct. 2394

App. 9

(where murder confession was obtained deceptively by

undercover “cellmate” prior to any need for Miranda

warning on murder charge, and thus no Miranda waiver

question existed, sole self-incrimination issue was volun-

tariness in sense of absence of coercion; intelligent knowl-

edge not issue where no Miranda waiver question

presented); Michigan v. Harvey (1990), 494 U.S. ,

108 L. Ed. 2d 293, 301, 110 S. Ct. 1176, 1179 (waiver of

right of counsel under sixth amendment must be volun-

tary, knowing, and intelligent; equivalent of Miranda

warnings generally suffices to establish knowing and

intelligent waiver of sixth amendment right during post-

indictment questioning); Patterson v. Illinois (1988), 487

U.S. 285, 292 & n.4, 101 L. Ed. 2d 261, 272 & n.4, 108 S. Ct.

2389, 2394 & n.4 (whether Miranda waiver also waived

right to counsel under sixth amendment during subse-

quent post-indictment questioning depended on whether

Miranda waiver was both voluntary and “knowing and

intelligent”).) Commentators support this understanding.

See Benner, Requiem for Miranda: The Rehnquist Court's

Voluntariness Doctrine in Historical Perspective, 67 Wash.

U.L.Q. 59, 143-47 & n.383 (1989) (criticizing perceived

retreat from Miranda but implicitly recognizing that Con-

nelly left intelligent-knowledge waiver requirement

intact); Berger, Compromise and Continuity: Miranda

Waivers, Confession Admissibility, and the Retention of Inter-

rogation Protections, 49 U. Pitt. L. Rev. 1007, 1018-19,

1042-54 (1988) (intelligent knowledge remains separate

Miranda waiver requirement in addition to voluntari-

ness); Note, Constitutional Protection of Confessions Made by

Mentally Retarded Defendants, 14 Am. J.L. Med. 431,

App. 10

433-36, 448-58 (1989) (probably after Connelly, but cer-

tainly after Patterson, intelligent knowledge remains sepa-

rate Miranda waiver requirement); Note, Colorado uv.

Conneily: The Demise of Free Will as an Independent Basis for

Finding a Confession Involuntary, 33 Vill. L. Rev. 895, 907,

920-22 (1988) (intelligent knowledge is separate require-

ment).

There remains a world of difference between volun-

tariness and intelligent knowledge. It has been noted,

thought to analytically different effect, that a mentally ill

person may “confess” at length quite without external

compulsion but not intelligently and knowingly, while a

perfectly rational person on the torture rack may confess

intelligently and knowingly but without free will. People

v. Kincaid (1981), 87 Ill. 2d 107, 127-28 (Simon, J., dissent-

ing) (issue on review was solely whether confession was

“voluntary”; dissent discussed no distinction between

lack of coercion and intelligent knowledge in terms of

post-1986 Burbine-Connelly constitutional voluntariness

doctrine but simply deemed both hypothetical confes-

sions not “voluntary”).

However, for Federal constitutional purposes, a dis-

tinction does need to be made between two types of

awareness in interpreting the Miranda-derived waiver

requirement of intelligent knowledge.

The first type of awareness involves “know[ing] and

understand[ing] every possible consequence of a waiver

of the Fifth Amendment privilege” (Spring, 479 U.S. at

574, 93 L. Ed. 2d at 966, 107 S. Ct. at 857), being “totally

rational and properly motivated” when confessing (Con-

nelly, 479 U.S. at 166, 93 L. Ed. 2d at 484, 107 S. Ct. at 521),

App. 11

or having all information that might be “useful” or that

“might * * * affec[t one’s] decision to confess” (Burbine,

475 U.S. at 422, 89 L. Ed. 2d at 421, 106 S. Ct. at 1141),

such as a list of “all the possible subjects of questioning in

advance of interrogation” (Spring, 479 U.S. at 577, 93 L.

Ed. 2d at 968, 107 S. Ct. at 859). In the cited cases, the

Supreme Court held that this mental state is not neces-

sary for a valid Miranda waiver. The Constitution does

not demand “that the police supply a suspect with a flow

of information to help him calibrate his self-interest in

deciding whether to speak or stand by his rights” (Bur-

bine, 475 U.S. at 422, 89 L. Ed. 2d at 421, 106 S. Ct. at

1141), and there is no Federal constitutional right to

confess only when in possession of information that

“could affect only the wisdom of a Miranda waiver, not its

essentially voluntary and knowing nature” (Spring, 479

U.S. at 577, 93 L. Ed. 2d at 967, 107 S. Ct. at 859).

The second type of awareness involves simply being

“cognizant at all times of “the State’s intention to use

[one’s] statements to secure a conviction” and of the fact

that one can “stand mute and request a lawyer.” (Burbine,

475 U.S. at 422, 89 L. Ed. 2d at 422, 106 S. Ct. at 1141.) The

latter mental state is what is held necessary for a valid

Miranda waiver.

This second type of awareness has been elucidated

more recently than Connelly and Burbine were decided.

(See Patterson v. Illinois (1988), 487 U.S. 285, 101 L. Ed. 2d

261, 108 S. Ct. 2389.) As noted by the Supreme Court in

interchangeably discussing a “knowing and intelligent”

waiver of rights to counsel under the fifth and sixth

amendments (U.S. Const., amends. V, VI), a waiver must

reflect “ ‘an intentional relinquishment or abandonment

App. 12

of a known right or privilege’ ”; “the accused must

‘kno[w] what he is doing’ so that ‘his choice is made with

eyes open’ ”; the accused must have ” ‘a full awareness of

both the nature of the right being abandoned and the

consequences of the decision to abandon it.’” Patterson,

487 U.S. at 292, 101 L. Ed. 2d at 272, 108 S. Ct. at 2395.

In satisfying the latter formulation’s “constitutional

minimum,” the Patterson Court found it sufficient under

the sixth amendment that the petitioner had been aware

of two points: (1) he had a right to consult with an

attorney, to have an attorney present during questioning,

and to have an attorney appointed if he could not afford

to retain one privately; and (2) any statement that he

made could be used against him in criminal proceedings,

and an attorney’s presence during questioning could

serve him by affording him advice on making any state-

ments. (Patterson, 487 U.S. at 293, 101 L. Ed. 2d at 273, 108

S. Ct. at 2395.) Though Patterson’s waiver claim arose

under the sixth amendment rather than the fifth, the

Court noted that the awareness just described resembled

the level of awareness found necessary in Burbine, adding

that, for purposes of post-indictment questioning such as

in Patterson, there is “a strong similarity between the level

of knowledge a defendant must have to waive his Fifth

Amendment right to counsel, and the protection accorded

to Sixth Amendment rights.” (Patterson, 487 U.S. at 297,

299 n.12, 101 L. Ed. 2d at 275, 276 n.12, 108 S. Ct. at 2397,

2398 n.12; accord Michigan v. Harvey (1990), 494 U.S. ___L

__, 108 L. Ed. 2d 293, 301, 110 S. Ct. 1176, 1179.) It is

therefore clear from Miranda and its progeny, including

App. 13

Patterson, that this second type of awareness on a defen-

dant’s part is necessary in order to constitute the intel-

ligent knowledge that in turn is required for blunting the

coercive effects of police interrogation in a Miranda

waiver context.

The foregoing review of intelligent-knowledge

waiver doctrine is a key to harmonizing Connelly with

Burbine. It also aids in deciding the present cause.

The trial judge in the present cause found that defen-

dant had no prior criminal experience and had a begin-

ning fourth-grade reading and comprehension level that

prevented him frem “understand[ing] what was happen-

ing here and * * * hav[ing] a knowing understanding of

what was happening,” so that he could not effectively

waive his Miranda rights “without the aid cf his parents

Or someone who would assist him in translating what

was really happening.” In other words, as the trial judge

found, “because of [defendant's] station in life, because

of the circumstances surrounding the situation, he was

unable to form a necessary intent to knowingly waive his

rights.” (The parties agree that defendant’s father was not

present at defendant’s interrogation; the father testified

that the police refused him permission to be present, and

the trial judge so found.)

The trial judge had heard testimony from a school

psychologist that defendant’s measured intelligence quo-

tient placed him at the bottom of the slow-learner, low-

average range. The psychologist testified that such per-

sons “need to go over things time and time again in order

to assimilate the same material than [sic] a student who

App. 14

functions in the normal range of intelligence.” The psy-

chologist also testified that defendant probably would

not have understood the terms “interrogate,” “court-

appointed attorney,” “intimidation,” “immunity,” and

“waiver” but that he would have agreed “to most every-

thing that was said to him to get himself out of the

situation.” (The terms “a lawyer appointed for me,”

“waiver,” “immunity,” and “intimidated” are contained

in a waiver form signed by defendant.)

On cross-examination, the psychologist testified that

defendant probably had an idea what a lawyer is, though

he would not be able to give a very specific, accurate

definition; that defendant understood the terms “silent,”

“I do not have to talk with any Collinsville Police Officer

unless I want to,” and “I know that I can refuse to answer

any questions,” all of which appeared on his waiver form;

but that he would have some difficulty with the word

“statements” in the form’s phrase “stop giving any state-

ments any time.” On redirect examination, the psycholo-

gist also testified that defendant might be confused by

the term “legal rights” and would probably refer to

“right” in opposition to “wrong.”

In his written order, the trial judge found that, based

on his observations of defendant during direct testimony,

defendant had substantial difficulty in understanding rel-

atively routine questions, was limited in his comprehen-

sion of single words, ard was substantially unable to

understand relatively simple concepts. The order also

recited that the trial judge was convinced from the psy-

chological testimony that defendant would have agreed

to and signed almost anything given him during inter-

rogation.

App. 15

Though the trial judge erred in finding that defen-

dant’s confession was not voluntary in the Federal

constitutional sense, his findings provide ample support

for concluding that defendant’s Miranda waiver was not

knowing and intelligent.

If intelligent knowledge in the Miranda context

means anything, it means the ability to understand the

very words used in the warnings. It need not mean the

ability to understand far-reaching legal and strategic

effects of waiving one’s rights, or to appreciate how

widely or deeply an interrogation may probe, or to with-

stand the influence of stress or fancy; but to waive rights

intelligently and knowingly, one must at least understand

basically what those rights encompass and minimally

what their waiver will entail. Here, defendant was found

not to understand fundamental terms contained in the

Miranda warnings of his rights, not to have been able to

form an intent to waive those rights, and not to have a

normal ability to understand questions and concepts.

Such findings, if borne out by the evidence, are sufficient

to warrant the conclusion that defendant did not waive

his Miranda rights knowingly and intelligently, and hence

to justify suppressing his confession. See Note, Constitu-

tional Protection of Confessions Made by Mentally Retarded

Defendants, 14 Am. J.L. Med. 431, 432-33, 440-44 (1989)

(discussing mentally retarded persons’ limited intellec-

tual ability to make knowing and intelligent Miranda

waivers); cf. Holtz, Miranda in a Juvenile Setting: A Child's

Right to Silence, 78 J. Crim. L. & Criminology 534, 536-37,

546-56 (1987) (citing evidence that most youths lack

proper comprehension of rights under police interroga-

tion; proposing use of simplified version of Miranda

App. 16

warnings); Note, Now My Son, You Are a Man: The Judicial

Response to Uncounseled Waivers of Miranda Rights by Juve-

niles in Pennsylvania, 92 Dick. L. Rev. 153, 168-71, 175-84

(1987) (discussing factors judicially and scientifically

found to bear on waiver competence of arrestees under

age 18.).

Our own prior cases lend further weight to today’s

holding. We have repeatedly analyzed Miranda waivers

with regard to whether they were both voluntary and

knowing and intelligent. For example, we recently did so

in People v. Reid (1990), 136 Ill. 2d 27, 51-52, 54-56, a case

bearing some factual resemblance to the present one.

Though we held there that the trial court’s denial of a

motion to suppress a confession was not against the

manifest weight of the evidence (Reid, 136 Ill. 2d at 59-60),

we were conscious of our responsibility to show defer-

ence to the findings of a trial court that had assessed

credibility, demeanor, and the relevant facts — a respon-

sibility we likewise have now, given the trial court’s

decision to suppress defendant’s confession in the pre-

sent cause. (See People v. Rogers (1988), 123 Ill. 2d 487,

495.) The Reid result is also distinguishable in that the

mother of the 15-year-old subnormally intelligent defen-

dant had been present with him and thus available to

explain events to him during his interrogation, even

though she was not an attorney. Reid, 136 Ill. 2d at 46,

58-59.

Among additional cases in which this court recog-

nized that a Miranda waiver must be knowing and intel-

ligent as well as voluntary were People v. Evans (1988), 125

Ill. 2d 50, 74; People v. Rogers, 123 Ill. 2d at 494-500; People

v. St. Pierre (1988), 122 Ill. 2d 95, 110-13; People v.

App. 17

Thompkins (1988), 121 Ill. 2d 401, 433-34; People v. Murphy

(1978), 72 Ill. 2d 421, 437; People v. Medina (1978), 71 Ill. 2d

254, 258-59, 263; and People v. Turner (1973), 56 Ill. 2d 201,

205-07. See also People v. Aldridge (1980), 79 Ill. 2d 87

(presuming that right of counsel under sixth amendment

was involved, but analyzing issue in terms of voluntary

and knowing waiver following fifth-amendment Miranda

warnings); People v. Wipfler (1977), 68 Ill. 2d 158, 171-72

(treating both non-coercion and intelligent knowledge as

components of voluntariness).

Independently of Miranda and its Federal voluntari-

ness principles, Illinois courts have long held that, to be

admissible, a confession must be “voluntary” in a State-

law sense and that a defendant’s mental ability, famil-

iarity with the English language, age, education, and

experience are among factors to be weighed in determin-

ing from the totality of the circumstances whether a con-

fession or waiver of rights is “voluntary” in that sense.

(See People v. Turner, 56 Ill. 2d at 206; People v. Hester

(1968), 39 Ill. 2d 489, 497-98; People v. Cocroft (1967), 37 Ill.

2d 19, 22; People v. Earl (1966), 34 Ill. 2d 11, 15.) (Insanity

is treated as a categorical exception; under Illinois law,

the confession of an insane person is involuntary per se.

(People v. Lambersky (1951), 410 Ill. 451, 455; cf. 33 Vill. L.

Rev. at 903-05 (collecting similar State and pre-Connelly

Federal holdings).)) In their holdings under State law,

Illinois courts in effect have treated intelligent knowledge

as one component of a confession’s overall voluntariness,

rather than as an admissibility criterion separate from

voluntariness as in Miranda waiver law. (See also Ill. Rev.

Stat. 1989, ch. 38, par. 114-11 (governing motions to sup-

press confessions as involuntary).) The line of Miranda

App. 18

cases represented by Burbine, Connelly, Spring, and Patter-

son has now seemingly settled, for Federal constitutional

purposes, that voluntarineses and intelligent knowledge

are separate questions; however, for purposes of our own

evidence law they are interrelated. Still, at this point we

reed not further consider how or whether our own

State’s common, statutory, or constitutional law would

bear on the issues before us, because the parties have not

raised such questions, and because Federal constitutional

principles by themselves are sufficient to inform our pre-

sent judgment.

In the latter connection, we note the State’s argument

that Supreme Court cases cited by defendant as support-

ing a separate admissibility requirement of intelligent

knowledge are explainable by whether police misconduct

was present of which a defendant was aware. (See Patter-

son, 487 U.S. 285, 101 L. Ed. 2d 261, 108 S. Ct. 2389; Spring,

479 U.S. 564, 93 L. Ed. 2d 954, 107 S. Ct. 851; Burbine, 475

U.S. 412, 89 L. Ed. 2d 410, 106 S. Ct. 1135; Smith v. Illinois

(1984), 469 U.S. 91, 83 L. Ed. 2d 488, 105 S. Ct. 490.) The

State says that when either there was no such misconduct

(Spring and Patterson) or a defendant was unaware of

such misconduct and it had no effect on him (Burbine),

defendants’ statements were found admissible. The State

concludes that, since no police misconduct occurred here,

the cases cited by defendant support admitting his con-

fession, not suppressing it.

The enunciation of Miranda principles in Patterson,

Spring, and Burbine, which we have already discussed,

survives the State’s attempt to interpret those cases factu-

ally. All three cases clearly require that a Miranda waiver

be both constitutionally voluntary and a decision taken

App. 19

knowingly and intelligently. In further response to the

State’s contention, we emulate the tone though iot the

substance of a separate opinion in Connelly, 479 U.S. at

177-78, 93 L. Ed. 2d at 491, 107 S. Ct. at 527-28 (Brennan,

J., joined by Marshall J., dissenting):

While it is true that no police misconduct discernible

by a defendant had occurred when statements were held

admissible in Patterson, Spring, and Burbine, it is also true

that in those cases the Court explicitly and at least as

significantly recognized that the statements followed

knowing and intelligent waivers of rights. See Patterson,

487 U.S. at 292, 300, 101 L. Ed. 2d at 272, 277, 108 S. Ct. at

2394, 2399 (“the specific issue posed here is whether

(defendant’s] waiver was a ‘knowing and intelligent’

waiver”; “Because we believe that [defendant’s] waiv-

er ** * was ‘knowing and intelligent,’ we find no error”);

Spring, 479 U.S. at 573-75, 93 L. Ed. 2d at 965-66, 107 S. Ct.

at 857-58 (no allegation of coercion; no allegation that

defendant failed to understand that he could remain

silent and that anything said could be used against him;

waiver was “indisputably” made “knowingly and intel-

ligently”); Burbine, 475 U.S. at 421-24, 89 L. Ed. 2d at

421-22, 106 S. Ct. at 1141-42 (voluntariness of waiver not

at issue; no question about comprehension of rights;

police misconduct in failing to tell defendant about attor-

ney’s telephone call could not have affected his intel-

ligence and voluntariness in waiving Miranda rights).

The fact that defendants in Patterson, Spring, Burbine,

and the present case were all conscious of no police

misconduct signifies only that, in regard to whether the

intelligent-knowledge Miranda waiver element existed,

this would be a case of first impression. Arguably unlike

App. 20

the present defendant, the defendants in the cited cases

understood their Miranda waivers and the effects of their

statements. Whether defendant knowingly and intel-

ligently waived his Miranda rights and gave his confes-

sion remains the key factual question here.

We now turn to the question whether the manifest

weight of the evidence contradicts the trial court’s find-

ing that defendant did not waive his Miranda rights or

give his confession knowingly and intelligently.

We do not sit to reweigh the evidence as if we were a

trial court; a reviewing court will not disturb a trial

court’s determination on a motion to suppress evidence

unless it is against the manifest weight of the evidence.

(People v. Galvin (1989), 127 Ill. 2d 153, 162.) Whether a

defendant intelligently waived his right to counsel

depends, in each case, on the particular facts and circum-

stances of that case, including the defendant’s back-

ground, experience, and conduct. (People v. Turner (1973),

56 Ill. 2d 201, 205-06.) The trial court here reached its

conclusion efter hearing police, parental, and psychologi-

cal testimony and — what is very significant — making its

own observations of defendant while he was testifying.

The State argues that defendant could read his con-

fession aloud and that he told the police and they

believed that he understood his rights. The State further

argues that defendant understood that he did not have to

speak with police and that he understood what a lawyer

was. The State cites numerous cases, most of them noted

in the appellate court’s opinion (185 Ill. App. 3d at 495),

App. 21

in which the confessions of defendants with low intel-

ligence and little education have been held admissible.

The majority of the cases cited by the State can easily be

distinguished on the facts of the defendants’ backgrounds

and trials. In any event, as the appellate court wrote,

“[{t]hese decisions can offer little support for the State’s

position * * * since the validity of a waiver of rights is

essentially a question of fact.” (185 Ill. App. 3d at 495.)

The State has not persuasively demonstrated that the trial

court manifestly erred when it found, based on the facts

and circumstances of this cause, that defendant did not

knowingly and intelligently waive his Miranda rights or

give his confession.

For the foregoing reasons, the judgment of the appel-

late court is affirmed.

Judgment affirmed.

App. 22

THE PEOPLE OF THE STATE OF ILLINOIS,

Plaintiff-Appellant, v.

BRIAN BERNASCO, Defendant-Appellee.

Fifth District No. 5-87-0344

Judgment affirmed.

Opinion filed June 27, 1989.

JUSTICE CHAPMAN delivered the opinion of the

court:

This is an appeal by the State from an order of the

trial court suppressing the confession of the defendant,

Brian Bernasco, as involuntary. On December 30, 1986,

the juvenile officer of the Collinsville police department

told the defendant’s father that he wanted to talk to the

defendant at the station. When the defendant and his

father arrived at the police station the juvenile officer told

them that a detective would do the questioning. Accord-

ing to the testimony of the defendant's father, Detective

Zukosky appeared and stated: “You can come in now.”

The defendant’s father said that he then got up to go in

with the defendant, but was told by the detective, “[N]o,

you sit and wait here.” Detective Zukosky, however, testi-

fied that he did not recall the father wanting to accom-

pany the defendant nor did he tell the father that he

could not do so.

Detective Zukosky took the defendant to the detec-

tive’s office located in the basement of the Collinsville

police station. The defendant, who was 17 years old and

had never been arrested or interrogated by the police,

testified that he was scared when he was taken down-

stairs. Officer Borkowski joined the defendant and Detec-

tive Zukosky in the detective’s office. The door to the

App. 23

office was left open. The defendant was given a copy of

his Miranda rights and Officer Borkowski testified that he

read each section to the defendant, who then initialled

each section. The defendant was asked if he had any

questions about his rights, and if he understood them,

and he acknowledged that he did understand them. The

defendant then signed a waiver of rights form which was

witnessed by Officer Borkowski and Detective Zukosky.

Officer Borkowski then read the defendant his rights

as printed on the “voluntary statement forms” used to

take the defendant’s statement. The defendant then gave

an oral statement in which he admitted his involvement

in several burglaries, and Officer Borkowski reduced the

statement to writing at the defendant’s request. The

defendant was then given the statement to read, and

Detective Zukosky testified that he read it aloud. The

defendant then initialled the scratch mark that Borkowski

had made and signed the voluntary statement. Detective

Zukosky testified that there was nothing in the defen-

dant’s demeanor or his answers to questions that would

indicate that he did not understand what his rights were.

He stated that the defendant did not seem to have any

trouble grasping the questions he was asked, and that he

answered in a normal manner, giving logical answers. No

threats or promises were made to the defendant and he

did not appear to be intoxicated or under the influence of

any drugs.

On cross-examination, Detective Zukosky testified

that he did not know if the defendant was in school or

what level of education the defendant had attained.

Zukosky also agreed that he did not know anything

about the defendant’s reading ability, comprehension

App. 24

ability, or IQ. Detective Zukosky also stated that he did

not know if someone with a fourth-grade reading and

comprehension level could understand legal terms. Offi-

cer Borkowski similarly acknowledged that he was not

familiar with the defendant’s academic credentials or his

reading ability.

Don Mattingly, a school psychologist employed by

the Parando Special Education District in Red Bud, testi-

fied for the defendant at the suppression hearing. Mat-

tingly has a bachelor’s and a master’s degree in

psychology from Eastern Illinois University and has

spent the last 12 years working as a school psychologist.

Mattingly evaluated the defendant in March of 1986,

approximately nine months prior to the defendant's inter-

rogation, to determine whether he was qualified for spe-

cial education services. After evaluating the defendant,

who was attending regular classes at the time, Mattingly

concluded that the defendant did not qualify for the

Collinsville special education programs. Mattingly also

concluded that the defendant had a full scale IQ of 80,

and he stated that the 80 to 89 range is referred to as the

slow learner or low average range. Mattingly also deter-

mined that the defendant’s reading skills were at the

beginning to middle fourth-grade level. |

The psychologist testified that when the two police

officers interviewed the defendant in the police station,

the defendant would have found the circumstances intim-

idating. On cross-examination, however, Mattingly also

indicated that anyone, regardless of educational back-

ground, who was being interrogated by two police offi-

cers would find the circumstances intimidating. In such a

situation, Mattingly stated that the defendant would

App. 25

probably agree “to most everything that was said to him

to get himself out of the situation.”

Mattingly further stated that in his opinion defen-

dant did not have the ability to understand legal terms.

He agreed that it was unlikely that the defendant could

understand words like “interrogate,” “court-appointed

attorney,” “intimidation,” “immunity,” or “waiver.” He

also testified, however, that the defendant probably had

an idea what a lawyer is, and would likely understand

the phrases “I do not have to talk with any Collinsville

police officer, unless I want to” and “I know I can refuse

to answer any questions.”

The defendant’s father, Carl Bernasco, testified that

the defendant dropped out of school in the ninth grade

and had never before been arrested or interrogated by the

police. Mr. Bernasco testified that the only reason he did

not go with his son when he was being questioned by the

police was because Detective Zukosky told him that he

could not.

The defendant, Brian Bernasco, also testified at the

suppression hearing. He stated that the officer handed

him a copy of the Miranda waiver and read it to the

defendant at a normal pace. The defendant admitted that

he initialled and signed the waiver of rights forms, but

stated that he was not paying attention, was scared, and

did not understand what the waiver meant. The defen-

dant also denied that the officer asked him if he under-

stood his rights after eac:. section of the Miranda waiver

was read to him. Instead, the defendant stated that the

officer told him to initial each paragraph, and then when

he finished reading the entire document, he was asked if

App. 26

he understood his rights. The defendant admitted that he

told the officer that he understood his rights when he was

asked.

The defendant also admitted initialing the Miranda

rights waiver at the top of the voluntary statement form

but denied that Detective Zukosky readvised him of his

rights. After signing the waiver forms, the defendant was

asked to tell everything he knew. The defendant gave his

statement and Detective Zukosky wrote it down. The

defendant admitted that the information contained in the

written statement came from him and that he read it over,

but stated that he did not read it out loud. The defendant

admitted signing the voluntary statement forms, but said

that he did not understand at the time of the questioning

that he had a right to refuse to speak to the police and

had a right to leave when he wanted.

The court found that the defendant did not know-

ingly and voluntarily waive his right to remain silent. The

court stated that it did not find that the Collinsville police

department did anything inappropriate or threatened or

harassed the defendant in any way. The court neverthe-

less suppressed the defendant’s statement because:

“Based upon the Berry case [People v. Berry

(1984), 123 Ill. App. 3d 1042, 463 N.E. 2d 1044] I

do not believe that this Defendant, who had no

prior criminal experience and who reads at a

beginning fourth-grade level and who, more

importantly, comprehends at a fourth-grade

level, could affectively [sic] under those circum-

stances, without the aid of his parents or some-

one who would assist him in translating what

was really happening, I don’t believe he volun-

tarily waived his rights, even though there is no

question that he did sign the Wavier [sic] of

App. 27

Rights Form, and there is no question that he

did so without being forced to do so by any-

one.”

In its written order the court, after finding that the

defendant had an IQ of 80, a fourth-grade reading and

comprehension level, and no prior criminal experience,

further found:

“4. That the Statement, which is sought to

be suppressed, was written totally by the police

officer, who was doing the interrogating and

only signed by the Defendant, Brian Bernasco.

5. That the police officers in this case,

namely Detectives Zukosky and Borkowski,

were of the opinion that the Defendant, Brian

Bernasco, understood his constitutional rights

prior to giving a Statement in this case. Further,

the police officers, quite properly, had Brian Ber-

nasco initial his Miranda Waiver Form and to

sign it with them witnessing it. Further, the

police officers did not inquire into Brian’s back-

ground and, instead, relied solely upon him

indicating that he understood his ‘rights.’

6. That the school psychologist, who had

personally tested Brian Bernasco, testified in the

case and testified that there were numerous

words contained in the Miranda Waiver, which

Brian in his opinion would be incapable of

understanding because of his limited compre-

hension and reading skills. The psychologist

further testified that his ability to understand

those words, while limited, could be enhanced

by someone explaining them to him, but the

testimony of the police officers clearly indicated

that no one explained what the terminology

within the Miranda Waiver meant.

7. That the Father of Brian Bernasco took

Brian to the police station and requested an

App. 28

opportunity to be with Brian during the inter-

rogation, and that opportunity was refused.

8. That the direct testimony of Brian Ber-

nasco indicated to the Court, in its observations

of the Defendant, that the Defendant had sub-

stantial difficulty in understanding relatively

routine questions. The Court further observed,

from the testimony of Brian Bernasco, that the

Defendant was not only limited in his compre-

hension of single words but, further, was sub-

stantially unable to understand relatively simple

concepts. That it is the Court’s opinion that

Brian Bernasco was barely a 17 year old adoles-

cent with sub-normal intelligence, with little

education, dependent fully upon his parents,

and lacking in experience in criminal affairs

completely.

9. That the Court, when confronted with

such a situation, feels that it is the obligation of

the Court to make sure that the greatest of care

was taken to assure that the Confession was

voluntary and, further, that the Confession was

not a product of ignorance of rights or of adoles-

cent fantasy, fright or despair. (In re Gault and

People v. Simmons).

10. That the Court is not suggesting in

these findings the Collinsville Detectives, in any

way, Overreached or threatened or coerced the

Defendant into giving his Statement in this case;

rather, the Court feels that the facts indicate,

clearly, that the Confession was not voluntary;

and that the Confession was the product of

Brian’s sub-normal intelligence, his inability to

comprehend what his rights were and his fright

of the situation.

11. That the Court is convinced from the

testimony of the psychologist, who had no

vested interest in this case, whatsoever, that

Brian Bernasco would have agreed to and

App. 29

signed most anything placed in front of him

during the interrogation process.”

The State now appeals, arguing that: (1) since the

trial court found that the Collinsville police officers did

not coerce the defendant’s confession, the confession is

admissible against the defendant; (2) the court’s decision

was against the manifest weight of the evidence; and (3)

the court applied the wrong standard to determine

whether the defendant’s confession was voluntary.

The State initially contends that absent a finding that

the police engaged in some coercive activity, the confes-

sion must be deemed voluntary, citing Colorado v. Con-

nelly (1986), 479 U.S. 157, 93 L. Ed. 2d 473, 107 S. Ct. 515.

In Connelly, a defendant told a Denver police officer that

he had murdered someone and wanted to talk about it.

Both that officer and a detective who arrived shortly

thereafter advised the defendant of his Miranda rights.

The defendant was then taken to police headquarters

where he detailed his story to the police and subse-

quently pointed out the location of the murder. The next

day the defendant became visibly disoriented and was

sent to a State hospital for evaluation. At a subsequent

suppression hearing, a psychiatrist testified that the

defendant was suffering from chronic schizophrenia and

was in a psychotic state on the day he confessed. The

psychiatrist further testified that the defendant was expe-

riencing “command hallucinations” which interfered

with his ability to make free and rational choices. The

psychiatrist also testified that Connelly’s illness did not

significantly impair his cognitive abilities, and thus he

understood his rights when the police advised him that

App. 30

he need not speak to them. Connelly, 479 U.S. at 160-61, 93

L. Ed. 2d at 480, 107 S. Ct. at 518-19.

On the basis of this evidence the Colorado trial court

decided that the defendant’s statements must be sup-

pressed because they were “involuntary.” The court ruled

that a confession is admissible only if it is the product of

the defendant’s rational intellect and free will. Although

the court found that the police had not engaged in any

coercive activity, Connelly’s illness destroyed his volition

and compelled him to confess. The trial court also found

that Connelly’s mental state vitiated his attempted

waiver of the right to counsel and the privilege against

compulsory self-incrimination. The Colorado Supreme

Court affirmed the trial court, finding that the defen-

dant’s initial statement was not the product of a rational

intellect and a free will, and noting that the absence of

police coercion does not foreclose a finding of involun-

tariness. The court then considered the defendant's

attempted waiver of his constitutional rights and found

that his mental condition precluded his ability to make a

valid waiver. Connelly, 479 U.S. at 161-62, 93 L. Ed. 2d at

481, 107 S. Ct. at 519.

The United States Supreme Court reversed, finding

that coercive police activity is a necessary predicate to a

finding that a confession is not “voluntary” within the

meaning of the due process clause. While the mental

condition of a defendant may be a significant factor in

determining the voluntariness of a confession, it does not

“by itself * * * dispose of the inquiry into constitutional

‘voluntariness.’ ” (Connelly, 479 U.S. at 164, 93 L. Ed. 2d at

482, 107 S. Ct. at 520.) “Orly if we were to establish a

brand new constitutional right — the right of a criminal

App. 31

defendant to confess to his crime oniy when totally ratio-

nal and properly motivated -- could respondent’s present

claim be sustained.” Connelly, 479 U.S. at 166, 93 L. Ed. 2d

at 484, 107 S. Ct. at 521.

The Supreme Court also found that the supreme

court of Colorado was mistaken in its analysis of the

question of whether the defendant had waived his Mir-

anda rights. The Colorado court relied on the testimony of

the psychiatrist to the effect that the defendant was not

capable of making a free decision with respect to his

constitutional right of silence and his constitutional right

to confer with a lawyer before talking to the police. The

Supreme Court stated that the Colorado court “erred in

importing into this area of constitutional law notions of

‘free will’ that have no place there. There is obviously no

reason to require more in the way of a ‘voluntariness’

inquiry in the Miranda waiver context than in the Four-

teenth Amendment confession context.” (Connelly, 479

U.S. 169-70, 93 L. Ed. 2d at 486, 107 S. Ct. at 523.) The

voluntariness of a waiver of the fifth amendment privi-

lege “has always depended on the absence of police

overreaching, not on ‘free choice’ in any broader sense of

the word.” (Connelly, 479 U.S. at 170, 93 L. Ed. 2d at 486,

107 S. Ct at 523.) Miranda, stated the Court, “protects

defendants against government coercion leading them to

surrender rights protected by the Fifth Amendment; it

goes not further than tha\.” Connelly, 479 U.S. at 170, 93 L.

Ed. 2d at 487, 107 S. Ct. at 524.

The defendant, relying on the following language,

argues that Conneliy does not stand for the proposition

that absent police coercion any confession is voluntary.

App. 32

“We conclude that the admissibility of this kind

of statement is governed by state rules of evi-

dence, rather than by our previous decision

regarding coerced confessions and Miranda

waivers.” Connelly, 479 U.S. at 159, 93 L. Ed. 2d

at 479, 107 S. Ct. at 518.

“We think the Constitution rightly leaves

this sort of inquiry [into a criminal defendant's

state of mind] to be resolved by state laws gov-

erning the admission of evidence and erects no

standard of its own in this area. A statement

rendered by one in the condition of respondent

might be proved to be quite unreliable, but this

is a matter to be governed by the evidentiary

laws of the forum * * * and not by the Due

Process Clause of the Fourteenth Amendment.”

Connelly, 479 U.S. at 166, 93 L. Ed. 2d at 483, 107

S. Ct. at 522.

Based on the above language, the defendant argues

that the States are free to develop their own “voluntari-

ness” standards and therefore the trial court correctly

relied on People v. Berry (1984), 123 Ill. App. 3d 1042, 463

N.E.2d 1044, in suppressing his confession. The defen-

dant’s argument is unpersuasive for two reasons.

First, while it is true that the defendant in Berry, who

was 17 years old, had an IQ of 80, limited ability to read,

write and comprehend, and no prior criminal record,

bears a remarkable resemblance to the defendant in the

instan: case, the Berry court did not find those factors to

be determinative. The Berry court correctly recognized

that the test to determine whether a confession is volun-

tary is whether the defendant’s will was overborn at the

time of the confession. (Berry, 123 Ill. App. 3d at 1044, 463

N.E.2d at 1047, citing People v. Kincaid (1981), 87 Ill. 2d

107, 429 N.E.2d 508.) The court further recognized that

App. 33

the general rule is that subnormal mentality does not in

itself make a confession involuntary as long as the defen-

dant has the capacity to understand the meaning and

effect of the confession. (Berry, 123 Ill. App. 3d at 1045,

463 N.E.2d at 1047.) The court found that the defendant's

subnormal mentality, coupled with his young age, lack of

education, and complete lack of experience in criminal

matters, suggested an increased susceptibility to coercion

and intimidation. The court then examined the conduct of

the police in obtaining the confession and held it to be

involuntary in “light of the intimidating, coercive and

deceptive atmosphere of the interrogation.” (Berry, 123 Ill.

App. 3d at 1045, 463 N.E.2d at 1048.) The activities which

the court found to be deceptive and coercive included

isolating the defendant from his mother, closing the door

to the interrogation room and stationing an officer out-

side, interrogating the defendant about an unrelated

offense concerning an acquaintance, and intimating that

the defendant’s finger prints might have been found at

the scene of the crime. Moreover, the police officer who

questioned the defendant admitted that he knew of the

defendant’s impairment of mind, that he did not give him

any Miranda warnings because he wanted to obtain a

confession, and that he told the defendant he was not

under arrest in order to avoid Miranda. In the instant

case, on the other hand, the court explicitly found that

the police had not engaged in any type of coercive activ-

ity.

Second, the statement by the Supreme Court in Con-

nelly that “the Constitution rightly leaves this sort of

inquiry [into the state of mind of a criminal defendant

App. 34

who has confessed] to be resolved by state laws govern-

ing the admission of evidence and erects no standard of

its own” (Connelly, 479 U.S. at 167, 93 L. Ed. 2d at 485, 107

S. Ct. at 522) is not an invitation to State courts to individ-

ually define the scope of the protection afforded by the

fourteenth amendment. It is merely an acknowledgment

that, while in the absence of police coercion the due

process clause does not require a confession to be sup-

pressed, the evidentiary rules of a State concerning such

matters as the defendant’s competency may affect the

admissibility of the confession. Based on the above, it is

clear that the defendant’s confession was “voluntary”

within the meaning of the due process clause.

We note with approval, however, that some commen-

tators critical of Connelly have urged that State courts,

when called upon to apply the provisions of their own

constitutions, should not adhere to the Supreme Court's

expansive interpretation of voluntariness. (See, e.g., Gar-

cia, Mental Sanity & Confessions: The Supreme Court’s New

Version of the Old “Voluntariness” Standard, 21 Akron L.

Rev. 275, 285 (1988) (After Connelly, State law is the “last

bastion of protection for mentally ill defendants”); Note,

Confessions Compelled by Mental Illness: What’s an Insane

Person to Do?, 56 Cin. L. Rev. 1049, 1072 (1988) (Connelly

“once again places the burden on the states to uphold

individual rights”).) While our supreme court has

recently indicated an increased willingness to construe

provisions of the Illinois Constitution differently than

similar provisions in the Federal Constitution (see, e¢.g.,

People ex rel. Daley v. Joyce (1988), 126 Ill. 2d 209, 533

N.E.2d 873), we need not decide whether our constitution

App. 35

provides broader protection than the Federal Constitu-

tion to criminal defendants such as Connelly. We do not

base our decision on Connelly, which held that police

coercion is necessary to render a statement involuntary.

Rather, we affirm the suppression of the defendant’s con-

fession based on the trial court’s finding that the defen-

dant did not knowingly and intelligently waive his fifth

amendment rights.

The trial court, in addition to finding the defendant's

confession was involuntary, also found that the defendant

had not voluntarily waived his fifth amendment Miranda

rights. The Miranda warnings are required, however, only

when a defendant is in custody “or otherwise deprived of

his freedom of action in any significant way.” (People v.

Wipfler (1977), 68 Ill. 2d 158, 168, 368 N.E.2d 870, 874,

quoting Miranda v. Arizona (1966) 384 U.S. 436, 444 16 L.

Ed. 2d 694, 706, 86 S. Ct. 1602, 1612.) We must therefore

determine, as a preliminary matter, whether the defen-

dant’s statement in the instant case was the result of a

custodial interrogation.

The test used to determine whether a statement was

made in a custodial setting is whether a reasonable, inno-

cent person would have believed that he was free to leave

or was expressly or impliedly bound to remain in the

presence of the police. (People v. Finklea (1983), 119 III.

App. 3d 448, 452, 456 N.E.2d 680, 682; People v. Savory

(1982), 105 Ill. App. 3d 1023, 1028, 435 N.E.2d 226, 230.)

The court must look to all the circumstances surrounding

the questioning, with no single factor deemed controlling.

The factors to be considered include: (1) the location,

time, length, and mood and motive of the interrogation,

including the extent of the knowledge possessed by

App. 36

police; (2) the number of police officers present and the

presence or absence of friends or family of the accused;

(3) any indicia of formal arrest, including physical

restraint, show of weapons or force, booking, fingerprint-

ing, or informing the person he is under arrest; (4)

whether the accused arrived at the place of interrogation

voluntarily on his own, in response to a police request, or

on a verbal command indicating compulsion; (5) whether

the accused voluntarily assists police in their investiga-

tion; (6) whether the subject is allowed to walk within

and from the location of the interrogation unaccompanied

by police; and (7) the age, intelligence, and mental make-

up of the subject. (Finklea, 119 Ill. App. 3d at 452, 456

N.E.2d at 682; Savory, 105 Ill. App. 3d at 1028, 435 N.E.2d

at 230.) In the instant case we note that the defendant,

who was 17 years old, of below normal intelligence, and

inexperienced in dealing with the police, was brought to

the police station by his father at police request. The

defendant was then taken to an office in the basement of

the Collinsville police department where, isolated from

his father, he was questioned by two experienced detec-

tives. We particularly note that the defendant’s father was

not allowed to accompany the defendant, but was instead

told to remain upstairs. While this factor is not deter-

minative, we believe that it would reasonably suggest to

the defendant that he was no longer free to do as he

might choose, but was instead subject to the control and

commands of the police. (See Smith, The Threshold Ques-

tion'in Applying Miranda: What Constitutes Custodial Inter-

rogation?, 25 S.C.L. Rev. 699, 732 (1974) (Arguing that a

person requested to come to the police station “is subject

to the same coercive atmosphere and tactics as the person

App. 37

placed under arrest” and that an “ignorant defendant

may see the police request as an order which he cannot

refuse, and thus be in custody as effectively as if he were

handcuffed”).) As Justice Goldenhersh pointed out in his

dissent in People v. Wipfler (1977), 68 Ill. 2d 158, 175-76,

368 N.E.2d 870, 877 (Goldenhersh, J., dissenting, joined

by Dooley, J.):

“The constitutional rights which Miranda

was designed to protect are so important that

their effective exercise should not depend on the

type of judicial hairsplitting present in this and

similar cases. The record shows that this 18-

year-old defendant was taken to the sergeant’s

office in the police station, that Detective Kuntz

sat at one desk, Detective Mahoney sat at the

other, the defendant sat across the desk from

Mahoney, and the door to the office was closed.

It would be remarkable indeed if under those

circumstances an 18-year-old high school stu-

dent reached any conclusion other than he was

in custody and that any attempt to leave would

be unsuccessful. Assuming, arguendo, that the

defendant’s belief that he was not free to leave

during the questioning was not “ bjectively rea-

sonable,’ ‘[iJt has been noted that as a logical

matter, a person who honestly but unreasonably

believes he is in custody is subject to the same

coercive pressures as one whose belief is reason-

able; this suggests that such persons also are

entitled to warnings. See, e.g., LaFave, “Street

Encounters” and the Constitution, 68 Mich. L.

Rev. 39, 105 (1968); Smith, The Threshold Ques-

tion in Applying Miranda: What Constitutes

Custodial Interrogation, 25 S.C.L. Rev. 699,

711-714 (1974).’ Oregon v. Mathiason, 429 U.S.

492, 496 n.1, 50 L. Ed. 2d 714, 720 n.1, 97 S. Ct.

711, 714-15 n.1 (Marshall, J. dissenting).”

App. 38

Although it is a close question, we believe that a reason-

able, innocent person would have believed that he was

not free to leave. (See People v. Hagar (1987), 160 Ill. App. ~

3d 370, 513 N.E.2d 628 (defendant was questioned in

custodial setting where he was brought to office of DCFS

investigator by parents and questioned behind closed

doors); People v. Clark (1980), 84 Ill. App. 3d 637, 405

N.E.2d 1192 (defendant was in custodial situation where

friend who had been sitting in squad car with defendant

was asked to leave after defendant stated she had shot

her husband).) Having concluded that the questioning of

defendant occurred in a custodial setting, we now exam-

ine the trial court’s finding that the defendant’s waiver of

his Miranda rights was invalid.

The trial court found that the defendant had not

“voluntarily waived his rights”. As explained in Connelly,

however, police coercion is a necessary predicate of such

a finding. Since no such coercion was found here, we are

compelled to hold that the defendant’s waiver of his

Miranda rights was voluntary within the meaning of the

fifth amendment. An analysis of the validity of a waiver

of the defendant’s fifth amendment rights, however, does

not cease upon a finding of voluntariness.

As Justice Brennan pointed out in his dissent in Con-

nelly, there is a second requirement, apart from the volun-

tariness requirement, that the State must satisfy to

establish a waiver of Miranda rights. Besides being volun-

tary, the waiver must be knowing and intelligent. (Con-

nelly, 479 U.S. at 187-88, 93 L. Ed. 2d at 498, 107 S. Ct. at

533 (Brennan, J., dissenting, joined by Marshall, J.).) To be

knowing and intelligent, “the waiver must have been

made with a full awareness both of the nature of the right

App. 39

being abandoned and the consequences of the decision to

abandon it.” (Moran v. Burbine (1986), 475 U.S. 412, 421, 89

L. Ed. 2d 410, 421, 106 S. Ct. 1135, 1141.) Only if the

totality of the circumstances “reveal both an uncoerced

choice and the requisite level of comprehension may a

court properly conclude that the Miranda rights have

been waived.” (Moran, 475 U.S. at 421, 89 L. Ed. 2d at 421,

106 S. Ct. at 1141.) The Illinois Supreme Court has sim-

ilarly held that a defendant’s purported waiver of his

Miranda rights is ineffective unless it is knowingly and

intelligently made (People v. Smith (1982), 93 Ill. 2d 179,

185-89, 442 N.E.2d 1325, 1328-29 (no knowing and intel-

ligent waiver of right to counsel during interrogation

where police interfered with attorney’s effort to consult

with defendant); People v. Turner (1973), 56 Ill. 2d 201,

205-07, 306 N.E.2d 27, 30-31 (defendant who had history

of mental retardation known to police and polygraph

operator had not made knowing and intelligent waiver of

Miranda rights).) As Justice Simon has explained:

“The distinction between an intellect that is

rational and a will that is free must not be

blurred. It is possible to have one without the

' other, bu. both are necessary for a statement to

be voluntary. For example, one operating under

insane delusions, as in Blackburn v. Alabama,

may freely choose, without any external com-

pulsion, to confess participation in a crime in

great detail. The defendant may seem to give

‘sensible’ answers to questioning. But the men-

tal disease afflicting the defendant robs the

defendant of any rational choice. Although there

is volition, it cannot be said that there is any

‘meaningful volition.’ Thus, the confession must

be suppressed. (Blackburn v. Alabama (1960), 361

U.S. 199, 211, 4 L. Ed. 2d 242, 250, 80 S. Ct. 274,

App. 40

282.) On the other hand, a defendant being tor-

tured on the rack or under more modern third-

degree methods may be perfectly rational, con-

cise and consistent in confessing. It is even

readily believable that a defendant would try to

hedge a confession under such pressures, in

order to say as little damning as possible while

avoiding harsher physical or psychological pain.

(See e.g., Mincey v. Arizona (1978), 437 U.S. 385,

57 L. Ed. 2d 290, 98 S. Ct. 2408.) But a rational

confession of that type lacks free will. It too

must be suppressed.” People v. Kincaid (1981), 87

Ill. 2d 107, 127-28, 429 N.E.2d 508, 517 (Simon, J.,

dissenting).

In the instant case the court found, based on its

observations of the defendant, that the defendant had

substantial difficulty in understanding relatively routine

questions, and that the defendant was not only limited in

his comprehension of single words, but was substantially

unable to understand relatively simple concepts. The

court also found that the defendant’s confession was the

product of his subnormal intelligence, his inability to

comprehend what his rights were, and his fright of the

situation. Furthermore, the court stated that it was con-

vinced from the testimony of the psychologist that the

defendant would have agreed to and signed most any-

thing placed in front of him during the interrogation

process. We believe that the trial court’s findings, if sup-

ported by the evidence, are sufficient to conclude that the

defendant did not knowingly waive his Miranda rights.

We therefore consider the State’s second argument.

The State next contends that the trial court’s decision

was against the manifest weight of the evidence. We will

not needlessly lengthen this opinion by again repeating

App. 41

the testimony of the witnesses at the suppression hearing.

Suffice it to say that the testimony of the psychologist

that the defendant was not capable of understanding

certain terms of the Miranda rights, and the defendant’s

own testimony that he did not understand his rights,

coupled with the defendant’s age, minimal educational

level, and lack of experience in criminal matters, are

sufficient to support the trial court’s decision. The trial

court, which had the opportunity to observe the defen-

dant during his testimony, clearly was in a position supe-

rior to a court of review to determine the defendant’s

mental abilities.

We are aware, of course, that evidence of limited

intellectual capacity, standing alone, does not indicate

that a defendant is incapable of waiving his constitutional

rights, (People v. Murphy (1978), 72 Ill. 2d 421, 437, 381

N.E.2d 677, 685) nor are the police required, as a prereq-

uisite to accepting a waiver, to conduct a mental examina-

tion of the accused to ascertain his ability to comprehend

his rights (People v. Cooper (1975), 30 Ill. App. 3d 326, 332,

332 N.E.2d 453, 458, cert. denied (1976), 425 U.S. 994, 48 L.

Ed. 2d 818, 96 S. Ct. 2206.) Mental deficiency is, however,

an important factor in considering the totality of the

circumstances under which a purported waiver of rights

was made since the “purpose of advising an accused of

his rights is to enable him to make an intelligent decision,

and to understand the consequences of that decision, and

the fact that the advice was iterated and reiterated, and

that he said he understood it, is of little consequence

unless the defendant was possessed of the intelligence to

understand the admonition.” People v. Turner (1973), 56

Ill. 2d 201, 205, 306 N.E.2d 27, 30.

= App. 42

In support of its position, the State cites numerous

cases where a defendant’s confession has been held to be

admissible despite the defendant’s low mental capa-

bilities. (E.g., People v. Madden (1986), 148 iil. App. 3d 988,

501 N.E.2d 1297 (defendant had an IQ of 82 and was

under the influence of drugs); People v. Kokoraleis (1986),

149 Ill. App. 3d 1000, 501 N.E.2d 207 (defendant had an

IQ of 75 and dropped out of school after the eighth

grade); People v. Ellison (1984), 126 Ill. App. 3d 95, 466

N.E.2d 1024 (defendani had an IQ of 77, was borderline

mentally retarded, and had a verbal language disability);

People v. Hester (1968), 39 Ill. 2d 489, 237 N.E.2d 466

(defendant was 14, had an IQ of 82 and a mental age of

nine years, nime months), cert. dismissed (1970), 397 U.S.

660, 25 L. Ed. 2d 642, 90 S. Ct. 1408; People v. Clements

(1985), 135 Ill. App. 3d 1001, 482 N.E.2d 675 (defendant

was 16, had a [sic] IQ of 58, and was mildly retarded and

passive dependent), cert. denied (1986), 476 U.S. 1106, 90

L. Ed. 2d 361, 106 S. Ct. 1952.) These decisions can offer

little support for the State’s position, however, since the

validity of a waiver of rights is essentially a question of

fact. “The determination of whether there has been an

intelligent waiver of right to counsel must depend, in

each case, upon the particular facts and circumstances

" surrounding that case, including the background, experi-

ence, and conduct of the accused.” (People v. Turner

(1973), 56 Ill. 2d 201, 205-06, 306 N.E.2d 27, 30, quoting

Johnson v. Zerbst (1938), 304 U.S. 458, 464, 82 L. Ed. 1461,

1466, 58 S. Ct. 1019, 1023; see also People v. Redmon (1984),

127 Ill. App. 3d 342, 347, 468 N.E.2d 1310, 1314; People v.

Perez (1983), 113 Ill. App. 3d 143, 147, 446 N.E.2d 1229,

1233.) The court in the instant case, after considering all

App. 43

of the evidence and testimony presented, concluded that

the defendant’s confession was the product of his “sub-

normal intelligence, his inability to comprehend what his

rights were, and his fright of the situation.” Such a con-

clusion was not contrary to the manifest weight of the

evidence.

The State’s final contention is that the trial court

erred by applying the incorrect standard in determining

whether the defendant’s confession should be sup-

pressed. In its written order, the court found that the

defendant “was barely a 17 year old adolescent with sub-

normal intelligence, with little education, dependent fully

upon nis parents, and lacking in experience in criminal

affairs completely.” The court went on to state:

“When confronted with such a situation,

[the court] feels that it is the obligation of the

court to make sure that the greatest of care was

taken to assure that the Confession was volun-

tary and, further, that the Confession was not a

product of ignorance of rights or of adolescent

fantasy, fright or despair. (Jn re Gault and People

v. Simmons).”

Based on the above language, and on the trial court’s

citation to Gault and Simmons, both cases involving juve-

nile defendants, the State argues that the trial court incor-

rectly applied the “juvenile standard” to this adult

defendant. The State contends that the references to “the

greatest of care” and to “adolescent fantasy, fright or

despair” are only applicable to juveniles and the court

therefore erred in basing its suppression of the defen-

dant’s confession on adolescent fright or on any “partic-

ularly great scrutiny.”

App. 44

The State seeks, in effect, to have this court remand

this case to the trial court for a new suppression hearing

with directions that the court use less care and be less

rigorous in its scrutiny of the defendant’s ability to

understand and knowingly waive his constitutional

rights. We flatly reject such a suggestion. The trial court

found that the defendant was unable to comprehend his

rights. We fail to see how applying a different “standard”

would change that determination. We hold, therefore,

that any error which the trial court may have committed

in this regard was harmless.

For the foregoing reasons, the judgment of the circuit

court of Madison County is affirmed.

Affirmed.

HOWERTON and GOLDENHERSH, JJ., concur.

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