Appendix — Illinois v. Braggs

App. 1

OPINION MODIFIED ON DENIAL OF REHEAR-

ING—4/15/04

ORIGINAL OPINION FILED—12/18/03

Docket No. 95350—Agenda 16—September 2003

THE PEOPLE OF THE STATE OF

ILLINOIS, Appellant, v. MARY BRAGGS, Appellee.

JUSTICE RARICK delivered the opinion of the court:

Defendant, Mary Braggs, was charged in the circuit

court of Cook County with two counts of first degree murder

for the deaths of Connie Hall and Donald Rudolph. After

refusing to conduct a hearing on defendant’s pending

motion to suppress statements, the circuit court deter-

mined that defendant was unfit to stand trial due to the

severity of her mental retardation. The court thereafter

conducted a discharge hearing, found the State’s evidence

sufficient to establish defendant’s guilt beyond a reason-

able doubt, and remanded defendant to the Department

of Mental Health and Developmental Disabilities for a

period of five years. Defendant appealed.

The appellate court reversed and remanded. People v.

Braggs, 302 Ill. App. 3d 602 (1998). Holding that the cir-

cuit court had erred when it refused to conduct a suppres-

sion hearing, the appellate court remanded the cause for

a hearing on defendant’s motion to suppress. The appel-

late court also concluded that the evidence was sufficient

to establish guilt beyond a reasonable doubt for purposes

of the discharge hearing.

On remand, the circuit court conducted a hearing on

defendant’s motion to suppress, hearing testimony from the

investigating detective, a psychiatrist, a clinical psycholo-

App. 2

gist, and an assistant State’s Attorney who had interviewed

defendant after she was formally arrested. The court

ultimately ruled defendant was not competent to waive

her Miranda rights, and consequently granted defendant’s

motion with respect to statements made to the assistant

State’s Attorney after defendant’s arrest. However, the

court did not suppress an inculpatory statement defen-

dant allegedly made to detectives shortly before she

was formally arrested, concluding that defendant was not

then in custody, there was no evidence of police coercion or

misconduct, and the statement was, therefore, admissible.

The circuit court determined that a new discharge hearing

was not necessary and reinstated the original order commit-

ting defendant to the Department of Mental Health.

Defendant again appealed.

The appellate court reversed and remanded, stating:

“[WJhen the trial court ruled that Braggs’ statements

to the police were admissible because she was not in

custody and Miranda was inapplicable, it was in error.

Likewise, the court’s ruling that, in the absence of

police coercion or the defendant being in custody, the

fact that Braggs was mentally handicapped was to be

considered only as to the weight to be given her state-

ments and not as to whether those statements were

inadmissible, was in error. The court should have

considered whether Braggs’ statement to the detec-

tives was voluntary in a state-law sense based upon the

totality of the circumstances. [Citation.] One of the

factors that the court should have considered was

whether Braggs’ mental retardation deprived her of

‘the capacity to understand the meaning and effect of

the confession.’ [Citation.] This is particularly impor-

tant in the present case, where the trial court found the

defendant was incapable of waiving her rights under

Miranda due to her diminished mental capacity.” 335

Ill. App. 3d 52, 65.

App. 3

The appellate court remanded the cause for a new hearing

on defendant’s motion to suppress, directing the circuit

court to conduct a new discharge hearing thereafter. 335 III.

App. 3d at 69. The appellate court observed, “much of the

evidence presented at the motion to suppress hearing

was unavailable to the court which conducted the 1996

discharge hearing.” 335 II]. App. 3d at 69.

We granted the State’s petition for leave to appeal (177

Ill. 2d R. 315), and we now affirm, with modification, the

judgment of the appellate court. We begin with a recita-

tion of the evidence adduced at the suppression hearing.

Chicago police detective Edward Winstead testified that

he investigated the deaths of Donald Rudolph and Connie

Hall. The victims’ bodies were both found in a first-floor

apartment located on South Prairie Avenue in Chicago on

April 28, 1993. Although officers initially thought that

Rudolph had been beaten to death, it was later deter-

mined that Rudolph died as a result of strangulation. Hall

died as a result of multiple stab wounds. During the

course of the investigation, Winstead began looking for

defendant.

On May 7, 1993, Survilla Cameron contacted Winstead

and informed him that defendant lived with her. Cameron

represented herself to be defendant’s sister and guardian;

however, Winstead admitted he never saw any documenta-

tion to substantiate Cameron’s claim. After Cameron

indicated that Winstead could speak with defendant,

Winstead transported defendant and Cameron to Area

One and questioned her. Prior to questioning, Cameron

informed Winstead that defendant was “mentally incompe-

tent.” Winstead admitted one could “clearly see that she

was mentally deficient.” Cameron agreed to help Winstead

in his interrogation of defendant, but cautioned him that

defendant was “slow.” Winstead did not advise defendant

of her Miranda rights. The interrogation took place in

an interview room with another detective present.

App. 4

Winstead testified he had difficulty communicating with

defendant in that “sometimes she wouldn’t answer ques-

tions,” and other times she was “very slow in answering.”

In Winstead’s own words: “She would be very slow in an-

swering. And her sister would then kind of repeat the

question or if Mary Braggs seemed to be paying atten-

tion to me she would then answer to her sister.” If defen-

dant responded, she would generally direct her answers

to Cameron, and Cameron would then “tell [Winstead]

what [defendant] was saying.” However, Winstead tes-

tified he could hear defendant as she spoke. During the

interrogation, Cameron acted as an intermediary for

Winstead. Defendant’s answers were responsive to

Winstead’s questions in the sense that defendant would

respond to questions repeated by Cameron and first posed

by Winstead.

Winstead summarized the substance of defendant’s

statements from the hour-long interrogation. According

to Winstead, defendant told him that she was in the

apartment on South Prairie Avenue when two black

males came to the door. Defendant overheard an argu-

ment and hid in the closet. When she came Out, defendant

saw Hall dead in the bedroom. Defendant said Hall had

been stabbed and was wearing white. Defendant said

Rudolph was in the front room. He had been hit in the

head with a wrench and had been strangled to death.

Winstead testified that defendant’s description was “very

accurate as to how the victims died and where they

were found.” Following the interrogation, Winstead took

defendant and Cameron home.

On the morning of May 9, Winstead again questioned

defendant, this time at Cameron’s apartment. As in all of

the interviews, Cameron was present. Detective James

Redmond was also present. Winstead said defendant was

still very slow in answering questions, or she might not

answer at all, but during this second interrogation, she

App. 5

at least spoke directly to him most of the time. Winstead

testified he went to question defendant, a mere two days

after the first interrogation, “to see if [he] could get a

little bit more information, if she recalled more about

the two black males who came to the door and the argu-

ment.” Winstead testified that defendant told him one of

the men was named Ron and he was a friend of Cleo.

Defendant described the other man as a tall black male.

Winstead testified that the investigation revealed Ron

Thomas was an acquaintance of Cleo and the victims, and

when Winstead located him he was with a tall black

male named Mike.

Later that same afternoon, Winstead picked up defen-

dant and Cameron and took them to Area One. Winstead

spoke to defendant in an interview room. He indicated, as

previously, it took defendant a long time to answer ques-

tions. “Often times /sic] she would put her head down and

say ‘I don’t know.’ ” Winstead showed defendant photo-

graphs of Ron Thomas and Mike. Defendant quickly

identified the photograph of Mike as being the tall black

male. Winstead said she was at first uncertain of the

identity of Ron Thomas, then she positively him. Winstead

testified that when he informed defendant the men were

at the police station, defendant changed her story. Defen-

dant then said that these were not the two men who came

to the apartment and that it was two different men.

Defendant reiterated that two men came to the door and

she hid in the closet.

Winstead testified that on that same afternoon he took

defendant and Cameron to the scene of the murders.

Defendant pointed out where the two bodies were found.

Winstead testified that her account was consistent with

where the bodies were found by the police. Defendant then

showed Winstead the closet where she hid. Winstead

testified he examined the closet and defendant “couldn’t

have possibly fit in there.” Winstead then took defendant

App. 6

and Cameron home, having questioned defendant at

three different locations over the course of the day.

On May 12, Winstead transported defendant and

Cameron to the polygraph unit of the Chicago police

department. Although defendant was cooperative, the

polygraph examination was inconclusive because defen-

dant did not register enough emotion. Again, defendant

was returned to Cameron’s apartment. Cameron and de-

fendant subsequently changed residences.

On June 25, 1993, Winstead picked up defendant and

Cameron from their new apartment and again took them

to Area One for questioning. Prior to the questioning,

Winstead informed Cameron that the police were looking

at defendant as a potential suspect. Despite the State’s

representation otherwise, the record is silent as to wheth-

er that information was communicated to defendant.

Winstead, another detective, defendant, and Cameron

were present in the interview room. Winstead advised

defendant of her Miranda warnings from a standard

form without additional explanation. Defendant made

no verbal response; she merely nodded her head in an

affirmative manner. Although Winstead could not re-

member her exact words, he recalled that Cameron said

something to the effect of: “he’s telling you that you

don’t have to talk to me and that you’re not going to be

in trouble or something.” Defendant nodded her head in

agreement and “seemed to understand what her sister was

saying.” Defendant never verbally indicated that she

understood, and she did not sign a waiver form. Indeed, it

is unclear to what extent defendant ever responded to, or

communicated with Winstead, He acknowledged that

Cameron “initially” acted as an “interpreter,” and it is

obvious from the foregoing testimony that she was still

acting in that capacity on June 25, 1993, despite Winstead’s

suggestion to the contrary: “After a while, after I talked to

[defendant] somewhat, I could begin to understand or

App. 7

she’d answer me or she wouldn’t.” The record does not

indicate whether Winstead’s questions to defendant were

suggestive or leading, or whether they called for a nar-

rative response.

Although the transcript of the suppression hearing does

not reveal the substance of statements defendant made

during the June 25 interview, the testimony of another

detective from the discharge hearing indicated that defen-

dant said she and Connie Hall were in an apartment

together on April 28, 1993, when Donald Rudolph re-

turned. Rudolph was drunk and struck both defendant

and Hall. Defendant then knocked Rudolph down and he

struck his head. Hall became upset, accusing defendant

of killing Rudolph, and defendant then stabbed Hall a

number of times in her upper body. Following the hour-

long interview, defendant was placed under arrest. An

assistant State’s Attorney arrived at the police station

and again advised defendant of her Miranda warnings.

Dr. Philip Pan, a psychiatrist, testified for the defense.

On May 16, 1996, Pan diagnosed the defendant as having

moderate mental retardation and determined defendant

was unfit to stand trial. He noted that four other psychia-

trists had reached the same conclusion. In 1996, Pan

concluded it was not likely that defendant could be re-

stored to fitness any time in the near future. On August 31,

1999, Pan again evaluated defendant. Dr. Pan testified

that defendant was unfit for trial and would not be-

come fit in the future. Pan also rendered his opinion that

defendant was incapable of understanding Miranda

warnings.

By way of explanation, Dr. Pan testified that defendant

could give simple answers to questions she understood, but

she was not capable of abstract thinking. Although she

knew she was born in 1941, defendant told Dr. Pan, in the

course of his 1999 interview, that she was 29 years old. Her

App. 8

thinking was “idiosyncratic,” meaning that she was often

“not on the same page” as the person questioning her. She

would frequently answer questions in a completely irrele-

vant manner. When asked the meaning of her right to

remain silent, she responded that she already had an

attorney. When Pan asked her what it meant that any-

thing she said could be used against her in a court of law,

she responded, “he know I didn’t do those two crimes. That

is something I didn’t do.”

Dr. Linda Wertzel, a clinical psychologist, also testified

for the defense. Wertzel had examined defendant in 1994

and testified to her findings. Wertzel concluded that

defendant was mentally retarded with an IQ of 54. Wertzel

described her observations of defendant at that time:

“She was flat and passive, kind of emotionally

blunted, no affect. She was overweight. She was—her

clothing was dirty. Her hygiene was very poor. She

was picking at her skin and nails and nose and ears.

She was nonspontaneous in her speech.”

Defendant could provide only “simple answers to direct

questions and really did not provide a narrative of informa-

tion.” She stated her age to be 29. Testing revealed that

defendant functioned, mathematically, at a kindergarten

level. Defendant was unsure if she had ever gone to school.

She could not read or write.

Wertzel administered a test designed to measure a

person’s ability to express thoughts accurately and coher-

ently and to comprehend what other people say. She

determined that defendant could only express herself at

a “very simple childish level” and she could not compre-

hend more than a one-step command. Wertzel said the

test involved asking the subject to touch colored shapes

in sequence. Wertzel first asked defendant to touch a red

square (one-step command), then asked her to touch a

red square and a yellow circle in sequence (two-step

App. 9

command). Defendant could not get beyond the one-step

command. Defendant was inconsistent in her ability to

identify shapes correctly. She displayed impairment on

both motor speed and motor dexterity tests. She could

not accurately draw and number the face of a clock.

When asked the meaning of various Miranda warnings,

defendant either said she did not know or she offered an

irrelevant or inappropriate response. Eventually, defen-

dant became frustrated and the interview was terminated.

As a result of her 1994 examination of defendant, Wertzel

concluded that defendant was illiterate, mentally re-

tarded, “only minimally able to care for her basic daily

needs, her comprehension of her current circumstances

was marginal, and she was unable to understand her

Miranda rights.

Wertzel examined defendant again in October 1999

and concluded she remained unable to understand her

Miranda warnings. Dr. Wertzel testified that defendant’s

behavior was “pretty similar” to her first encounter with

defendant. Defendant “acted as though she had only been

in jail for about a week.” She identified Kennedy as presi-

dent of the United States. Wertzel administered the

Peabody Picture Vocabulary Test, in which the subject is

shown a pictures and is asked to name activities or pas-

times represented therein. Defendant scored the age

equivalent of a five-year-old. After her 1999 examination

of defendant, Wertzel again concluded it was “highly

unlikely” that defendant ever had the ability to comprehend

or waive Miranda rights.

Wertzel described defendant as “sort of like a child, * * *

unsure of what is real and what is imagined, what is an

actual memory, what is told to them.” Moreover, she stated

that defendant does not tolerate stress very well and is

“suggestible.” Wertzel described more than one instance

where she was able to lead defendant in the questioning to

get the information desired.

App. 10

In rebuttal, the State called Assistant State’s Attorney

Stan Gonsalves. Gonsalves testified he went to Area One

on June 25, 1993, to interview defendant. Prior to meet-

ing defendant, detectives told Gonsalves defendant was

“a little slow.” Gonsalves advised defendant of her Miranda

warnings. Gonsalves said defendant was “just quiet at

that point.” Defendant did not respond verbally when

she was asked if she understood her rights. Defendant

nodded her head affirmatively after Gonsalves finished

giving her the Miranda warnings. Cameron was in the

room, but did not say anything. Gonsalves testified that

defendant was responsive to his questions during the

interrogation, but he conceded that communicating with

defendant was “difficult” and “slow.” The record does

not indicate whether Gonsalves’ questions to defendant

were suggestive or leading, or whether they called for a

narrative response.

After hearing testimony in this matter, the circuit

court rendered its ruling. The judge’s initial statements

indicate that he believed the issue in this case was the

same as that presented in People v. Bernasco, 138 Ill. 2d

349 (1990), cited by defendant. The court perceived the

issue as “two fold”: whether defendant’s - statements

were obtained free of police coercion, misconduct, or

overreaching; and whether “a valid Miranda waiver

must be knowing and intelligent.”

Citing Colorado v. Connelly, 479 U.S. 157, 93 L. Ed. 2d

473, 107 S. Ct. 515 (1986), the circuit court stated that

a confession is not rendered involuntary under the fed-

eral due process clause without “some police overreach-

ing.” In the circuit court’s view, there was no evidence

suggesting that the police had done anything to coerce the

defendant to give a statement. The court ruled that defen-

dant was not in custody until after she had confessed to

Winstead; consequently, Miranda warnings were not

required prior to that time, and any statements she

App. 11

made before that point were admissible. The circuit court

determined that Winstead had “gratuitously offered”

defendant Miranda warnings on the morning of her ar-

rest, even though the warnings were not required by the

attendant circumstances. The court said there was “no

dispute” that defendant was mentally handicapped, but

ruled “that goes to the weight of those statements, not to

whether those statements were admissible.”

The court concluded that defendant was in custody

following her statement to the Winstead and she did not

knowingly and intelligently waive her Miranda rights. In so

ruling, the court relied upon the uncontroverted testimony

of Pan and Wertzel, and that of law enforcement person-

nel who observed defendant’s actions and demeanor dur-

ing periods of interrogation. The court specifically men-

tioned “the testimony of Winstead about how she acted and

[Assistant] State’s Attorney Gonsalves that she did not

respond verbally [when] given her rights. She merely

stood silent.”

Based upon the uncontested testimony of the witnesses,

the court suppressed the statement defendant made to

Assistant State’s Attorney Gonsalves following her arrest.

The court, however, denied defendant’s motion with re-

spect to any statements made before defendant was in

custody.

On appeal, the State posits a single issue: whether

defendant’s final “statement” or “confession” to Winstead-

which, on the basis of the trial court’s ruling, the State

assumes was noncustodial-was “constitutionally volun-

tary because it was given without police coercion’—a

second assumption based upon conclusions the trial court

drew from undisputed facts. Defendant continues to ar-

gue, inter alia, that defendant was in custody when she

gave the allegedly inculpatory statement to Detective

Winstead and that she did not effectively waive her

App. 12

Miranda rights. The State disputes the former contention,

but not the latter.

We begin our analysis by identifying the relevant stan-

dard of review and the. burden of proof A court of review

will accord great deference to the trial court’s factual

findings, and will reverse those findings only if they are

against the manifest weight of the evidence; however, the

court will review de novo the ultimate question posed by the

legal challenge to a trial court’s ruling on a motion to

suppress. People v. Sorenson, 196 Ill. 2d 425, 431 (2001);

Peopie v. Schoening, 333 Ill. App. 3d 28, 31-32 (2002).

Where a defendant challenges the admissibility of his

confession through a motion to suppress, the State has the

burden of proving the confession was voluntary by a

preponderance of the evidence. 725 ILCS 5/114-11(d) (West

2000); In re G. O., 191 Ill. 2d 37, 49. The concept of volun-

tariness includes proof that the defendant made a know-

ing and intelligent waiver of his privilege against self-

incrimination and his right to counsel. People v. Reid, 136

Ill. 2d 27, 54 (1990); People v. Joya, 319 Ill. App. 3d 370,

378 (2001).

In this case, the trial court determined that defendant

was unable to effectively waive her Miranda rights, based

upon the unrefuted testimony of the doctors who had

examined her and law enforcement personnel who observed

her actions and demeanor. Consequently, the trial court

granted the defendant’s motion to suppress as to state-

ments allegedly made by defendant after she was formally

arrested. The court denied defendant’s motion with respect

to her earlier statement to Winstead only because the

court believed she was not ‘in custody” for purposes of

Miranda at that time. Since defendant continues to argue

that she was in custody when she was interrogated by

Winstead at the police station on June 25, 1993, we first

address the custodial issue.

App. 13

The determination of whether a defendant is “in custody”

for Miranda purposes involves “two discrete inquiries * * *:

first, what were the circumstances surrounding the interro-

gation; and second, given those circumstances, would a

reasonable person have felt he or she was not at liberty

to terminate the interrogation and leave.” Thompson uv.

Keohane, 516 U.S. 99, 112, 133 L. Ed. 2d 383, 394, 116

S. Ct. 457, 465 (1995); United States v. Badmus, 325 F.3d

133, 138 (2d Cir. 2003). See also Berkemer v. McCarty, 468

U.S. 420, 442, 82 L. Ed. 2d 317, 336, 104 S. Ct. 3138, 3151

(1984) (“the only relevant inquiry is how a reasonable

man in the suspect’s position would have understood his

situation”). Thus, in determining whether a person is “in

custody” for purposes of Miranda, a court should first

ascertain and examine the circumstances surrounding the

interrogation, and then ask if, given those circumstances,

a reasonable person would have felt he or she was not

at liberty to terminate the interrogation and leave. People

v. Patel, 313 Ill. App. 3d 601, 604 (2000). With respect to

the latter inquiry, the accepted test is what a reasonable

person, innocent of any crime, would have thought had

he or she been in the defendant’s shoes. People v. Fair, 159

Ill. 2d 51, 67 (1994), quoting People v. Wipfler, 68 Ill. 2d

158, 166 (1977).

When examining the circumstances of interrogation, the

following factors have been found relevant in determin-

ing whether a statement was made in a custodial setting:

the location, time, length, mood, and mode of the interroga-

tion, the number of police officers present, the presence

or absence of the family and friends of the accused, any

indicia of formal arrest, and the age, intelligence, and

mental makeup of the accused. See People v. Lucas, 132

Ill. 2d 299, 417 (1989); People v. Fletcher, 328 Ill. App. 3d

1062, 1073 (2002); People v. Armstrong, 318 Ill. App. 3d 607,

613 (2000); Patel, 313 Ill. App. 3d at 604-05; People v.

Rivera, 304 Ill. App. 3d 124, 128 (1999); People v. Savory,

App. 14

105 Ill. App. 3d 1023, 1028 (1982). Although it is gen-

erally irrelevant that the interrogating officer subjectively

viewed the individual under questioning as a suspect, the

officer’s beliefs, if conveyed by word or deed to the individ-

ual being questioned, are relevant to the extent that

they would affect how a reasonable person in the position

of the individual being questioned would have gauged

the breadth of his freedom of action. Stansbury v. Califor-

nia, 511 U.S. 318, 324, 128 L. Ed. 2d 293, 299, 114 S. Ct.

1526, 1529 (1994); Patel, 313 Ill. App. 3d at 604. Moreover,

where the investigating officer is aware of particular

characteristics or traits of the individual that make him

or her particularly vulnerable to the impression that he

or she is in custody, and the officer exploits those char-

acteristics in questioning, that, too, is a relevant factor

in determining whether the individual is “in custody” for

purposes of Miranda. See United States v. Erving L., 147

F.3d 1240, 1248 (10th Cir. 1998) (limited capacity to

understand, and other particular personality traits, may

be relevant to custody question where officers are aware

of those traits and they influence the actions of the offi-

cers); cf United States v. Macklin, 900 F.2d 948, 951 (6th

Cir. 1999) (no indication that the police were aware of

defendants’ mental deficiencies and the officers repeatedly

advised defendants that they were not under arrest and

did not have to answer questions).

As we consider the age, intelligence, and mental makeup

of the accused-and an investigating officer’s awareness

and exploitation of those characteristics-in our examina-

tion of the circumstances surrounding the interrogation,

so those factors are analytically intertwined with the

reasonable-person prong of the custodial question. Indeed,

other courts have incorporated these factors into the

reasonable-person standard in varied circumstances

involving investigatory interaction between the police

and citizens. See United States v. Zapata, 997 F.2d 751,

App. 15

759 (10th Cir. 1993) (notwithstanding reasonable-person

standard, attributes such as age, education and intelligence

of the accused have been recognized as relevant in de-

termining whether consent was voluntary); United States

uv. Little, 18 F.3d 1499, 1505 (10th Cir. 1994) (in applying

the reasonable person standard to a consent to search

issue, the “particular personal traits * * * of the defendant”

may become relevant * * * if the police officer knows of

the personal traits or characteristics and they influence

his or her conduct); Commonwealth v. Reid, 571 Pa. 1, 28,

811 A.2d 530, 546 (2002) (when considering whether

consent was voluntarily given, a “reviewing court should

evaluate the characteristics of the accused, the interaction

between the accused and the police, and assess how a

reasonable person in the accused’s shoes would have

reacted to that interaction”); United States v. Montgomery,

14 F.3d 1189, 1194 (7th Cir. 1994) (even when examining

a noncustodial interrogation, a court should look to “the

characteristics of the accused and the details of the inter-

rogation” to determine whether a reasonable person

would have felt coerced); United States v. Cichon, 48 F.3d

269, 276 (7th Cir. 1995) (same); United States v. Oliver, 142

F. Supp. 2d 1047, 1051 (N.D. Ill. 2001) (same).

The justification for incorporating general and readily

discernible characteristics of the subject-actor into the

reasonable-person standard logically must apply in this

situation as well. If, as is the case, we are concerned with

what a reasonable person “in the defendant’s shoes” (see

Lucas, 132 Ill. 2d at 418) would have thought about his

or her freedom of action, the reasonable person we envi-

sion must at least wear comparable footwear; otherwise,

we ought to simply abandon the legal charade that the

defendant’s characteristics, perspective and perception

matter at all.

Recognizing this principle, the Ninth Circuit Court of

Appeals has suggested the applicable standard should

App. 16

indeed be modified in this context, where a juvenile is

concerned, to reflect what a reasonable juvenile would have

thought in defendant’s position. Alvarado v. Hickman, 316

F.3d 841, 848 (9th Cir. 2002), cert. granted,__ U.S. __ 156

L. Ed. 2d 703, 124 S. Ct. 45 (2003). In its analysis, the

Alvarado court first recited the now firmly established

legal principle that “juvenile defendants are, in general,

more susceptible to police coercion than adults; as such, due

process demands that a defendant’s juvenile status be

taken into consideration when determining the proper

procedural safeguards that attach to a custodial interroga-

tion.” Alvarado, 316 F.3d at 843. The Alvarado court

then reasoned, “If a juvenile is more susceptible to police

coercion during a custodial interrogation, then the same

juvenile is also more susceptible to the impression that

he is, in fact, in custody in the first instance.” Alvarado, 316

F.3d at 843. Next, the court seemingly sanctioned a

reasonable-juvenile standard to be applied to the determi-

nation of custodial interrogation. The Alvarado court

quoted, with special emphasis, from Erving L., 147 F.3d

at 1248:

““Given these facts, a reasonable juvenile in E.L.’s

position would not have believed that the officers had

curtailed his freedom of movement to a degree associ-

ated with formal arrest.’” (Emphasis in original.)

Alvarado, 316 F.3d at 848, quoting Erving L., 147 F.3d

at 1248.

The Alvarado court then observed, “When we survey the

landscape of state court decisions, we note that every

jurisdiction that has squarely addressed the issue has

ruled that juvenile status is relevant to the ‘in custody’

determination, either as a factor in the totality of circum-

stances test, or by way of modification to the reasonable

person standard” (Emphasis added.) Alvarado, 316 F.3d

at 850 n.5 (collecting cases). See generally State v. Jason

L., 129 N.M. 119, 126, 2 P.3d 856, 863 (2000) (characteris-

App. 17

tics such as whether the person being questioned is a

child or an adult are objective and relevant to the ques-

tion of whether a reasonable person would feel free to

terminate questioning and leave); Ramirez v. State, 739

So. 2d 568, 574 (Fla. 1999) (applying “reasonable juvenile”

standard to determine whether defendant would have

believed he was in custody at the time of the interrogation);

State v. Smith, 546 N.W.2d 916, 923 (Iowa 1996) (“it is

appropriate to consider the age of the defendants as

an additional factor in making a determination as to

custody status”); In re D.A.R., 73 S.W.3d 505, 511 (Tex. Ct.

App. 2002) (“We believe the facts here establish that a

reasonable thirteen-year-old would have believed he was

in custody”); In re Loredo, 125 Or. App. 390, 394, 865

P.2d 1312, 1315 (1993) (custodial question entailed in-

quiry into what a reasonable person of the child’s age,

knowledge and experience would have thought); In re

Robert H., 194 A.D.2d 790, 791, 599 N.Y.S.2d 621, 623

(1993) (“[A] reasonable 15-year-old, in the position of

Robert, would not have believed he was free to leave the

scene”); In re Rennette B., 281 A.D.2d 78, 85, 723 N.Y.S. 31,

37 (2001) (same). In this context, our own appellate court

has modified the reasonable person standard, where

a juvenile is involved, considering what a reasonable

juvenile would have thought about his or her custodial

status. See In re J.W., 274 Ill. App. 3d 951, 960 (1995)

(“Although J.W. had not been formally arrested * * * a

reasonable 14-year-old person would have been entitled to

believe * * * he was in police custody and not free to leave”).

See also People v. Armstrong, 318 Ill. App. 3d 607, 614-15.

The same rationale that requires modification of the

reasonable person standard to take into account the general

characteristics of juveniles also militates in favor of such

a modification where the mentally retarded are con-

cerned. “Mental retardation may have a significant impact

on an individual who finds himself involved with the

App. 18

criminal justice system, particularly in the context of

confessions and interrogations. * * * Many mentally

retarded people may be less likely to withstand police

coercion or pressure due to their limited communication

skills, their predisposition to answer questions so as to

please the questioner rather than to answer the question

accurately, and their tendency to be submissive.” L.

Entzeroth, Putting the Mentally Retarded Criminal Defen-

dant to Death: Charting the Development of a National

Consensus to Exempt the Mentally Retarded from the Death

Penalty, 52 Ala. L. Rev. 911, 917 (2001). See also P.

Hourihan, Earl Washington’s Confession: Mental Retarda-

tion and the Law of Confessions, 81 Va. L. Rev. 1471, 1473

(1995) (“Mentally retarded persons are more susceptible to

coercion, more likely to confess falsely, and less likely to

understand their rights than people of normal intellectual

ability”). Just as they are more susceptible to police coercion

during a custodial interrogation, the mentally retarded

are also more susceptible to the impression that they are,

in fact, in custody in the first instance. The circumstances

of the instant case amply demonstrate the point.

Including the initial interrogation of June 25, 1993,

defendant was questioned by police six times before she

was formally arrested: four times at a police facility, once

at her home and once at the scene of the crime. The

police enlisted the aid and consent of Cameron-who appar-

ently represented herself to be defendant’s sister and legal

guardian-in order to question defendant. Cameron acted

as a translator of sorts and actually facilitated the police

interrogation. Her role in the process of interrogation is

not what we characterize as that of a family member

concerned with defendant’s welfare. It is not evident from

the record that defendant ever verbally assented to police

interrogation. On every occasion that she was questioned

outside her home, the police transported defendant. Two

detectives were always present during the interrogations.

App. 19

Although it is not clear from the record whether defen-

dant was present when Winstead advised Cameron that

defendant was a suspect, even a mentally retarded sus-

pect might well have regarded herself as such after

Winstead had expressed disbelief of her version of events

and had asked her to take a polygraph examination. We

also note that Winstead for the first time read defen-

dant her Miranda rights on June 25, something he had

not done in previous encounters. We have no doubt what-

soever that a reasonable person with defendant’s mental

capacity would have believed he or she was in custody

and not free to leave the police station.

In fact, our research has disclosed a case involving sim-

ilar circumstances, a person of apparently normal intelli-

gence, and a determination that the interrogation was

custodial. In United States v. Wauneka, 770 F.2d 1434

(9th Cir. 1985), defendant was questioned by law enforce-

ment officials on four occasions, three on the day of his

confession. On the first three, he was transported from his

residence to a Bureau of Indian Affairs office by plain

clothes agents. When he was picked up the last time for

further questioning, Wauneka was transported by two

armed officers and was placed in a large conference room

with four or five officers who each had an opportunity

to question him. The hour-long interrogation eventually

turned accusatory. During a break, Wauneka, who was

then 18 years old, broke down crying. FBI agents re-

sumed the questioning despite the fact that Wauneka

was visibly shaken by this ordeal and eventually ob-

tained a confession. Wauneka had no means of transporta-

tion, and he was never offered an opportunity to leave the

Bureau’s office prior to his confession. On these facts, the

court of appeals upheld a district court ruling that

Wauneka was “in custody” for purposes of Miranda when he

confessed. The court stated, “A reasonable innocent person

in such circumstances probably would have concluded that

App. 20

he was not free to leave.” United States v. Wauneka, 770

F.2d 1434, 1438-39 (9th Cir. 1985).

Like Wauneka, the defendant in this case was repeatedly

taken by officers to a law enforcement facility and ques-

tioned. As in Wauneka, the instant defendant was never

told she could leave the station when she wished; she

was taken home by the police when they were finished with

her. By the time of the encounter on June 25, the atmo-

sphere of the interrogation had turned accusatory: defen-

dant had taken a polygraph examination and had been

designated a suspect by Winstead. However, defendant,

unlike Wauneka, is mentally retarded. She was only at the

police station because her purported guardian/sister

agreed to police requests that she accompany them there.

Her options, no doubt, seemed very limited indeed.

Under the circumstances, a reasonable person with

defendant’s mental capacity would not have felt free to

leave. In this case, the police knowingly exploited defen-

dant’s mental retardation. While the custody inquiry

may not “place upon the police the burden of anticipating

the frailties or idiosyncracies of every person whom they

question” (Berkemer, 468 U.S. at 442 n.35, 82 L. Ed. 2d at

336 n.35, 104 S. Ct. at 3151 n.35), neither does it sanc-

tion the exploitation of known frailties or idiosyncracies

by the government. Modification or refinement of the rea-

sonable person standard is appropriate where, as here,

such exploitation has occurred. We conclude that the cir-

cuit court erred in ruling defendant. was not in custody

when she allegedly gave an inculpatory statement to

Detective Winstead on June 25, 1993.

Having determined that Winstead’s interrogation of

defendant on June 25 was custodial, we now address the

question of whether defendant knowingly and intelligently

waived her Miranda rights. Custodial interrogation is, of

course, inherently coercive and “‘trades on the weakness

i

App. 21

of individuals.’” Dickerson v. United States, 530 U.S. 428,

435, 147 L. Ed. 2d 405, 414, 120 S. Ct. 2326, 2331 (2000),

quoting Miranda v. Arizona, 384 US. 436, 455, 16 L. Ed. 2d

694, 712, 86 S. Ct. 1602, 1618 (1966). As we have noted

previously herein, it is generally recognized that the

mentally retarded are considered more susceptible to

police coercion or pressure than people of normal intellec-

tual ability, they are predisposed to answer questions so

as to please the questioner rather than to answer accu-

rately, they are more likely to confess to crimes they did

not commit, they tend to be submissive, and they are less

likely to understand their rights. See M. McCloud, Words

Without Meaning: The Constitution, Confessions and

Mentally Retarded Suspects, 69 U. Chi. L. Rev. 495, 503,

538 (2002); L. Entzeroth, Putting the Mentally Retarded

Criminal Defendant to Death: Charting the Development of

a National Consensus to Exempt the Mentally Retarded from

the Death Penalty, 52 Ala. L. Rev. 911, 917 (2001). P.

Hourihan, Earl Washington’s Confession: Mental Retarda-

tion and the Law of Confessions, 81 Va. L. Rev. 1471, 1473

(1995).

However, evidence of a defendant’s limited mental or

intellectual capacity at the time of a confession, alone, does

not establish that he or she was incapable of waiving

Miranda rights. Limited intellectual capacity is one of

several factors to be considered in this regard. People v.

Foster, 168 Ill. 2d 465, 476 (1995); People v. Mahaffey, 165

Ill. 2d 445, 462 (1995).

Nevertheless, “waiver of a constitutional right is valid

only if it is clearly established that there was ‘an inten-

tional relinquishment or abandonment of a known

right * * *.’” People v. Johnson, 75 Ill. 2d 180, 187 ( 1979),

quoting Johnson v. Zerbst, 304 US. 458, 464, 82 L Ed.

1461, 1466, 58 S. Ct. 1019, 1023 (1938). See People v.

McCianahan, 191 Ill. 2d 127, 137 (2000). Waivers must

not only be voluntary, but must be knowing and intelli-

App. 22

gent acts in the sense that they are done with sufficient

awareness of the relevant circumstances and likely conse-

quences. McClanahan, 191 Ill. 2d at 137; Bernasco, 138

Ill. 2d at 364-65.

A valid waiver of Miranda rights must be knowingly and

intelligently made. Bernasco, 138 Ill. 2d at 364-65. A

criminal suspect is not required to know and understand

every possible consequence of a waiver of the Fifth Amend-

ment privilege for it to be knowingly and intelligently made.

Colorado v. Spring, 479 U.S. 564, 574, 93 L. Ed. 2d.954,

966, 107 S. Ct. 851, 857 (1987). However, in order to ef-

fect an intelligent and knowing waiver of Miranda rights,

a defendant must have”‘“a full awareness of both the

nature of the right being abandoned and the consequences

of the decision to abandon it.”‘“Bernasco, 138 Ill. 2d at

360, quoting Patterson v. Illinois, 487 U.S. 285, 292, 101 L.

Ed. 2d 261, 272, 108 S. Ct. 2389, 2395 (1988). The defen-

dant need not understand far-reaching legal and strategic

effects of waiving his or her rights or appreciate how

widely or deeply an interrogation may probe; however,

the defendant must at least understand basically what

those rights encompass and minimally what their waiver

will entail. Mahaffey, 165 Ill. 2d at 462, quoting Bernasco,

138 Ill. 2d at 363. Whether a waiver is knowing and

intelligent is determined by the particular facts and

circumstances of the case, “including the background,

experience, and conduct of the accused.” Johnson uv.

Zerbst, 304 U.S. at 464, 82 L. Ed. at 1466, 58 S. Ct. at 1023;

In re J.J.C., 294 Ill. App. 3d 227, 233 (1998).

It is all too obvious, as the trial court concluded, that the

defendant in this case did not knowingly and intelligently

waive her Miranda rights. The State does not even attempt

to argue that point. Winstead advised defendant of her

Miranda warnings from a standard form without addi-

tional explanation. Defendant made no verbal response;

she merely nodded her head in an affirmative manner.

App. 23

Winstead later recalled that Cameron told defendant

something to the effect of: “He’s telling you that you don’t

have to talk to me and that you're not going to be in trouble

or something.” Defendant nodded her head in agreement

and “seemed to understand what her sister was saying.”

Defendant never verbally indicated that she understood,

and she did not sign a waiver form. Indeed, it is unclear

to what extent defendant ever responded to, or communi-

cated with, Winstead. He acknowledged that Cameron

“initially” acted as an “interpreter,” and it is obvious from

his testimony that she was still acting in that capacity on

June 25, 1993, despite Winstead’s suggestion to the con-

trary: “After a while, after I talked to [defendant] some-

what, I could begin to understand or she’d answer me or

she wouldn’t.” That statement is hardly a testament to

an acceptable level of communication and understanding

between Winstead and defendant. The record does not

indicate whether Winstead’s questions to defendant were

suggestive or leading, or whether they called for a narra-

tive response.

Assistant State’s Attorney Gonsalves testified that he

advised defendant of her Miranda warnings, and she was

“Just quiet at that point.” Defendant did not respond

verbally when she was asked if she understood her rights.

Defendant simply nodded her head affirmatively after

Gonsalves finished giving her the Miranda warnings.

Cameron was in the room, but did not say anything.

Gonsalves testified that defendant was responsive to his

questions during the interrogation, but he conceded that

communicating with defendant was “difficult” and “slow.”

The record does not indicate whether Gonsalves’ questions

to defendant were suggestive or leading, or whether they

called for a narrative response. It does not appear from the

record that defendant had any prior experience with the

criminal justice system.

App. 24

Dr. Philip Pan characterized defendant’s mental impair-

ment as moderate mental retardation. He determined her

condition was profound to a degree that she was unfit to

stand trial. He noted that four other psychiatrists had

reached the same conclusion. Pan rendered his opinion that

defendant was incapable of understanding Miranda

warnings. He noted that her thinking was “idiosyncratic,”

meaning she was often “not on the same page” as the

person questioning her. She would frequently answer

questions in a completely irrelevant manner.

Dr. Linda Wertzel, a clinical psychologist, examined

defendant in 1994 and testified to her findings. Wertzel

concluded that defendant was mentally retarded with an

IQ of 54. Wertzel stated that defendant could provide

only “simple answers to direct questions and really did

not provide a narrative of information.” Defendant func-

tioned, mathematically, at a kindergarten level. Defendant

was unsure if she F had ever gone to school. She could

not read or write. Wertzel determined that defendant

could only express herself at a “very simple childish level”

and she could not comprehend more than a one-step

command. Defendant’s comprehension of her circumstances

was marginal, and she was unable to understand her

Miranda rights.

Wertzel examined defendant again in October of 1999

and concluded defendant remained unable to understand

her Miranda warnings. Wertzel then administered the

Peabody Picture Vocabulary Test to defendant. Defendant

scored the age equivalent of a five-year-old. After her 1999

examination of defendant, Wertzel determined it was

“highly unlikely” that defendant ever had the ability to

comprehend or waive Miranda rights. Wertzel described

defendant as “sort of like a child, * * * unsure of what

is real and what is imagined, what is an actual memory,

what is told to them.” Moreover, she stated that defendant

does not tolerate stress very well and is “suggestible.”

App. 25

Wertzel described more than one instance where she was

able to lead defendant in the questioning to get the re-

sponse desired.

The uncontroverted testimony in this case demon-

strates that defendant did not knowingly and intelligently

waive her Miranda rights. No other conclusion is possi-

ble based on the evidence adduced at the suppression

hearing. Defendant was subjected to repeated interroga-

tion that was actually facilitated by her purported sister/

guardian. By repeatedly taking defendant where they

wanted, when they wanted, the police reinforced their

authority and control over her. Defendant apparently

had no prior experience with the criminal justice system.

She was clearly a suspect by the time she took a poly-

graph test and was thereafter questioned on June 25, 1993.

The experts who testified were unanimously of the opinion

that defendant was incapable of understanding and waiv-

ing her Miranda rights. Aside F from the State’s testimony

regarding defendant’s ambiguous nods, there was no

evidence even suggesting that defendant waived her

rights. In fact, the minimal level of communication be-

tween law enforcement officials and the defendant through-

out the investigation of this case is a matter of great

concern to this court and should have been to the officers

involved, who proceeded to repeatedly question defendant

despite her obvious impairment and vulnerability. We

note that the degree of defendant’s mental impairment

is comparable to that of the defendants in Bernasco and

People v. Robinson, 301 Ill. App. 3d 634 (1998). In both

cases, confessions were suppressed. Bernasco, 138 Ill. 2d

at 350-51; Robinson, 301 Ill. App. 3d at 643.

It has been said that “a system of criminal law enforce-

ment which comes to depend on the ‘confession’ will, in the

long run, be less reliable and more subject to abuses than

a system which depends on extrinsic evidence independ-

ently secured through skillful investigation.” Escobedo v.

App. 26

Illinois, 378 U.S. 478, 488-89, 12 L. Ed. 2d 977, 985, 84

S. Ct. 1758, 1764 (1964). Custodial interrogation trades on

the weakness of individuals (Dickerson, 530 U.S. at 435, 147

L. Ed. 2d at 414, 120 S.Ct. at 2331, quoting Miranda, 384

U.S. at 455, 16 L. Ed. 2d at 712, 86 S. Ct. at 1618); the

young and mentally infirm are most vulnerable. The

potential for abuse is obvious, as is the need for adequate

safeguards. We believe this case amply demonstrates the

point.

Both confessions defendant allegedly gave on June 25,

1993, were made under circumstances custodial in nature.

As defenda .: was incapable of knowingly and intelligently

waiving he: Miranda rights, both statements should have

been suppressed. We express no opinion regarding the

admissibility of statements defendant may have made

prior to that date. The State’s argument on appeal concerns

only defendant’s “confession to the detectives.” We, there-

fore, affirm the judgment of the appellate court insofar

as we reverse and remand for further suppression proceed-

ings and a new discharge hearing. We modify the appel-

late court’s judgment to the extent that we limit the scope

of any further suppression proceedings to statements

defendant may have made prior to June 25, 1993.

Given our disposition, we need not reach the issue upon

which the appellate court disposed of this case. We may

affirm the result below on any basis that is supported

by the record. People v. Huff, 195 Ill. 2d 87, 91 (2001); In

re Application of the Cook County Treasurer, 185 Ill. 2d

428, 436 (1998).

For the reasons stated, we affirm the judgment of the

appellate court as modified and remand to the circuit court

for further proceedings consistent with this opinion.

Affirmed as modified;

cause remanded

PO ee Tee Te eee ee ee eee

App. 27

FIFTH DIVISION

November 8, 2002

No. 1-01-0110

THE PEOPLE OF THE ) Appeal from the

STATE OF ILLINOIS, ) Circuit Court of

Plaintiff-Appellee, ) Cook County

)

v. )

)

MARY BRAGGS, a Honorable

Defendant-Appellant. ) Stanley Sacks,

) Judge Presiding.

JUSTICE QUINN delivered the opinion of the court:

Defendant, Mary Braggs, was charged by indictment

with two counts of first degree murder for the deaths of

Connie Hall and Donald Rudolph. The initial trial court

refused to conduct a hearing on defendant’s motion to

suppress statements. The trial court subsequently found

defendant unfit to stand trial and a discharge hearing

was held. At that hearing, the trial court found that the

evidence was sufficient to establish defendant’s guilt be-

yond a reasonable doubt and remanded defendant to the

Department of Mental Health and Development Disabil-

ities (Department of Mental Health) for a period of five

years.

On appeal, this court held that the trial court erred when

it refused to conduct a hearing on defendant’s motion to

suppress and directed the trial court to conduct a hearing

on remand. People v. Braggs, 302 Ill. App. 3d 602 (1998).

This court additionally held that the evidence was sufficient

App. 28

to establish guilt beyond a reasonable doubt for purposes

of the discharge hearing.

On remand, the trial court conducted a hearing on defen-

dant’s motion to suppress and, in finding that defendant

was not mentally competent to waive her Miranda rights,

granted defendant’s motion with respect to the state-

ments made to the assistant State’s Attorney following

defendant’s arrest. The trial court did not suppress defen-

dant’s statement made to detectives shortly after she

arrived at the police station. The trial court held that a

new discharge hearing was not necessary and reinstated

the original order committing defendant to the Depart-

ment of Mental Health. Defendant now appeals.

On appeal, defendant argues that the trial court im-

properly denied her motion to suppress in that her state-

ments were not voluntary. Defendant additionally argues

that the trial court erred in refusing to hold a new dis-

charge hearing.

For the following reasons, we reverse and remand.

I. BACKGROUND

On July 23, 1993, defendant was indicted on two counts

of first degree murder. On June 20, 1996, the initial trial

court, after refusing to conduct a hearing on defendant’s

motion to suppress statements, found defendant unfit to .

stand trial. The trial court found that defendant, in all

probability, would remain unfit indefinitely in light of her

mental retardation. The trial court subsequently held a

discharge hearing pursuant to Section 104-25 of the Code

of Criminal Procedure of 1963 ‘725 ILCS 5/104-25 (West

1996)). At that hearing, a Chicago police detective testified

that on July 25, 1993, after he advised defendant of her

Miranda warnings, defendant told him that she and Connie

Hall were in an apartment together on April 28, 1993, when

6 ete RTM Mane aes

Phe alte GD IA 04's 1

TALL Ls AI PRIX Rol TAD Ete GAAS det LOT Kcateley + ap (30

App. 29

Donald Rudolph returned. Rudolph was drunk and struck

both defendant and Hall. Defendant then knocked Rudolph

down and he struck his head. Hall became upset, accusing

defendant of killing Rudolph, and defendant then stabbed

Hall a number of times in her upper body. The trial court

found this evidence sufficient to establish defendant’s

guilt beyond a reasonable doubt. Defendant was re-

manded to the Department of Mental Health for a period

of five years.

Defendant appealed. On appeal, we remanded the matter

for a hearing on defendant’s motion to suppress, holding

that the trial court erred in refusing to conduct the hearing.

Braggs, 302 Ill. App. 3d at 606. We also held that the

\ evidence introduced against defendant, when viewed in its

aspect most favorable to the State, was sufficient to estab-

lish her guilt beyond a reasonable doubt for purposes of

the discharge hearing.

On remand, the following evidence was introduced at the

hearing on the motion to suppress statements. Chicago

police detective Edward Winstead testified that he was

assigned to investigate the deaths of Donald Rudolph and

Connie Hall. The victims’ bodies were both found in a first-

floor apartment located on South Prairie Avenue in Chicago

on April 28, 1993. Hall died as a result of multiple stab

wounds. Rudolph died as a result of strangulation. During

the course of the investigation, Winstead began looking

for defendant. On May 7, 1993, Survilla Cameron, defen-

dant’s sister and guardian, contacted Winstead and in-

formed him that defendant lived with her. Winstead

transported defendant and Cameron to Area One and

questioned her. Cameron informed Winstead that defendant

was mentally incompetent. Defendant was not advised of

her Miranda rights. Winstead testified he had difficulty

communicating with defendant, that “sometimes she

wouldn’t answer” questions, and that she was “very slow

in answering.”

App. 30

Winstead testified that, in summary, defendant told him

that she was in the apartment when two black males

came to the door. Defendant heard an argument and hid

in the closet. When she came out, defendant saw Hall dead

in the bedroom. Defendant said Hall had been stabbed

and was wearing white. Defendant said Rudolph was in

the front room and that he had been hit in the head with

a wrench and had been strangled to death. Winstead

testified that defendant’s description was “very accurate as

to how the victims died and where they were found.”

Winstead then took defendant and Cameron home.

On the morning of May 9, Winstead questioned defendant

at Cameron’s apartment with Cameron presert. Defendant

said that one of the men was named Ron arid that he was

a friend of Cleo’s. Defendant described the other man as a

tall black male. Winstead testified that the investigation

revealed Ron Thomas was an acquaintance of Cleo and the

victims, and when Winstead located him he was with a

tall black male named Mike. Later that same afternoon,

Winstead picked up defendant and Cameron and took them

to Area One. Winstead, in the company of Cameron, showed

defendant photographs of Ron Thomas and Mike. Defen-

dant quickly identified the photograph of Mike as being the

tall black male. At first she was uncertain of the identity

of Ron Thomas, then she was certain it was him. Winstead

testified that when he informed defendant the men were

at the police station, defendant changed her story. Defen-

dant then said that these were not the two men who came

to the apartment and that it was two different men.

Defendant said two guys came to the door and she hid in

the closet.

Winstead testified that on that same afternoon he took

defendant and Cameron to the scene of the crime. Defen-

dant pointed out where the two bodies were found.

Winstead testified that her account was consistent with

where the bodies were found by the police. Defendant then

App. 31

pointed out the closet she hid in. Upon examining the

closet, Winstead testified that defendant “couldn’t have

possibly fit in there.” Winstead then took defendant and

Cameron home.

On May 12 Winstead transported defendant and Cameron

to the polygraph unit of the Chicago police department.

Although defendant was cooperative, the polygraph exami-

nation was inconclusive because defendant did not regis-

ter enough emotion. Again, defendant was returned to

Cameron’s apartment. Cameron and defendant subse-

quently moved residences.

On June 25, 1993, at around noon, Winstead picked up

defendant and Cameron from their new apartment and

took them to Area One for questioning. Prior to the ques-

tioning, Winstead informed Cameron the police were now

looking at defendant as a potential suspect. Winstead,

another detective, defendant and Cameron were present

in the interview room. Winstead advised defendant of

her Miranda warnings, to which defendant nodded her head

in an affirmative manner. Following an hour-long inter-

view, defendant was placed under arrest. An assistant

State’s Attorney arrived and again advised defendant of

her Miranda warnings.

Dr. Philip Pan, a psychiatrist, testified for the defense. On

May 16, 1996, Pan diagnosed the defendant as having

moderate mental retardation and being unfit to stand

trial. Pan testified it was not likely she could be restored

to fitness any time in the near future. On August 31,

1999, Pan again evaluated defendant. Pan opined that

defendant was incapable of understanding Miranda

warnings. Dr. Pan further testified that defendant could

give simple answers to questions she understood but she

was not capable of abstract thinking. Dr. Pan explained

that this meant defendant was unable to think about the

higher meaning something may have. Defendant told Dr.

App. 32

Pan she was 29 years old when in reality she was 56. Dr.

Pan also testified that defendant was unfit for trial and

would not become fit in the future.

Dr. Linda Wertzel, a clinical psychologist, also testified

for the defense. On May 21, 1994, Wertzel examined

defendant and concluded she was mentally retarded with

an I.Q. of 54. Wertzel concluded defendant mathematically

functioned at a kindergarten level. Wertzel also concluded

that defendant was unable to understand her Miranda

rights. Wertzel examined defendant again in October 1999

and concluded she remained unable to understand her

Miranda warnings. Dr. Wertzel testified that the defendant

was emotionally blunted and passive. She was illiterate

and was only able to express herself at a very simple,

childish level. Defendant had a limited ability to compre-

hend more than a one-step command. Defendant was

unable to cooperate with her attorney.

In rebuttal, the State called Assistant State’s Attorney

(ASA) Stan Gonsalves. Gonsalves testified he went to Area

One on June 25, 1993, to interview defendant. Prior to

meeting defendant, detectives told Gonsalves defendant

was a little slow. Gonsalves advised defendant of her

Miranda warnings. Defendant did not respond verbally

when she was asked if she understood her rights individu-

ally. Defendant nodded her head affirmatively after

Gonsalves finished giving her the Miranda warnings.

Following the hearing, the trial court, in an 11-page

finding, first determined that the issue facing the court

was two fold: whether defendant’s statement was obtained

free of coercion or misconduct; and whether defendant’s

waiver of her Miranda rights was “knowing and intelli-

gent.” The court found that there was not even a sugges-

tion that the police had done anything to coerce the defen-

dant to give a statement. The trial court also found defen-

dant was not in custody until after she confessed to

Src nen CA NAS on

RO PRI TOD Sa ON SAR ART ODS Di PO Cm * oe eee Pn Li0? seh mC ehitle Chane! Doak

App. 33

Winstead, and therefore, any statements she made before

that point were admissible. The trial court found that

Winstead “gratuitously offered” defendant her Miranda

warnings on the morning of her arrest even though the

warnings were not needed. The trial court found that

defendant was in custody following her statement to the

police and that she did not knowingly and intelligently

waive her Miranda warnings. In doing so, the court relied

upon the testimony of Dr. Pan and Dr. Wertzel. The court

also relied upon “the testimony of Winstead about how she

acted and [Assistant] State’s Attorney Gonsalves that she

did not respond verbally [when] given her rights. She

merely stood silent.” The court found that defendant was

mentally handicapped and then held “that goes to the

weight of those statements, not to whether those state-

ments were admissible.” Therefore, the court denied defen-

dant’s motion with respect to any statements made before

defendant was in custody, but suppressed the statement

made to ASA Gonsalves following her arrest.

Defendant’s motion to reconsider was denied. The trial

court then ruled that the original order of June 27, 1996,

committing defendant to the Department of Mental Health,

should stand. In recognizing the appellate court’s instruc-

tion that “in the event that motion [motion to suppress] is

granted and the statements of defendant are suppressed,

the circuit court shall conduct a new discharge hearing.”

(Braggs, 302 Ill. App. 3d at 607), the trial court held that

a new discharge hearing was unnecessary. The testimony

at the previous discharge hearing only involved defendant’s

unsuppressed statement to the police. Defendant’s state-

ment to Gonsalves was not introduced at the discharge

hearing. Therefore, the trial court reasoned that the

evidence would be the same and a new hearing would

be unnecessary. Defendant now appeals.

App. 34

II. ANALYSIS

We review the ultimate question of whether a confession

is voluntary de novo, but we accord great deference to the

trial court’s factual findings, and we will reverse those

findings only if they are against the manifest weight of

the evidence. In re G.O., 191 Ill. 2d 37, 49-50 (2000).

In denying defendant’s motion to suppress, the trial court

relied upon Colorado v. Connelly, 479 U.S. 157, 93 L. Ed. 2d

473, 107 S. Ct. 515 (1986). In Connelly, the defendant

approached a uniformed police officer in downtown Denver

on August 18, 1983. Connelly told the officer that he had

murdered someone and he wanted to talk about it. The

officer gave Connelly his Miranda rights. Connelly said he

understood his rights and he would talk to the officer

because his conscience had been bothering him. A detective

arrived and he again advised Connelly of his Miranda

rights. Connelly said he had come all the way from Boston

to confess to the murder of Mary Ann Junta, a young girl

he had killed in Denver in November 1982. A search of

police records revealed that the body of an unknown female

had been found in April 1983. Connelly readily agreed to

take the police to the scene of the killing. He pointed out

the exact location of the murder. The police testified that

Connelly appeared to fully understand the nature of his

acts and they did not perceive any indication that Connelly

was suffering from any kind of mental illness.

When Connelly was interviewed by the public defender

the next morning, he appeared to be disoriented. He gave

confused answers to questions and said that “voices” had

told him to come to Denver and that he had confessed

because the voices told him to. Connelly was initially found

incompetent to assist in his own defense, but by March

1984, doctors found him competent to stand trial. In a

preliminary hearing, defendant moved to suppress all his

statements. A psychiatrist testified that defendant was

A a RL TIS BNE HP ANI Wels

App. 35

suffering from chronic schizophrenia and was in a psychotic

state at least as of the day before he confessed. The psychia-

trist testified that, in his expert opinion, defendant was

experiencing “command hallucinations.” Connelly, 479 U.S.

at 161, 93 L.Ed.2d 473, 107 S.Ct. at 519. This condition

interfered with his ability to make “free and rational

choices.” Connelly, 479 U.S. at 157, 93 L.Ed.2d 473, 107

S.Ct. at 517. He further testified that Connelly’s illness did

not significantly impair his cognitive abilities. Thus,

defendant understood his rights when the police gave them.

The Colorado Supreme Court affirmed the trial court’s

suppression of the defendant’s statements. People uv.

Connelley, 702 P.2d 722 (Colo. 1985). The court found that

the admission of the confession in a court of law was

sufficient state action to implicate the due process clause of

the fourteenth amendment. The court held “the absence

of police coercion or duress does not foreclose a finding of

involuntariness. One’s capacity for rational judgment and

free choice may be overborne as much by certain forms

of severe mental illness as by external pressure.” Connelly,

702 P.2d at 728. As Connelly’s initial statement was not the

product of a rational intellect and a free will, it was prop-

erly suppressed. Further, Connelly’s mental condition

precluded his ability to make a valid waiver of his constitu-

tional rights. Therefore, his statement made while in

custody was also properly suppressed. Connelly, 702 P.2d

at 729.

The United States Supreme Court first reversed the

Colorado Supreme Court’s holding that Connelly’s confes-

sion violated due process.

“Respondent would now have us require sweeping

inquiries into the state of mind of a criminal defendant

who has confessed, inquires quite divorced from any

coercion brought to bear on the defendant by the State.

We think the Constitution rightly leaves this sort of

App. 36

inquiry to be resolved by state laws governing the

admission of evidence and erects no standard of its own

in this area. A statement rendered by one in the condi-

tion of respondent might be proved to be quite unreli-

able, but this is a matter to be-goeverned by the eviden-

tiary laws of the forum, see, e.g., Fed. Rule Evid. 601,

and not by the Due Process Clause of the Fourteenth

Amendment. ‘The aim of the requirement of due

process is not to exclude presumptively false evidence,

but to prevent fundamental unfairness in the use of

evidence, whether true or false.’ Lisenba v. California,

314 U. S. 219, 236, 86 L. Ed. 166, 180, 62 S. Ct. 280,

290] (1941).

We hold that coercive police activity is a necessary

predicate to the finding that a confession is not ‘volun-

tary’ within the meaning of the Due Process Clause of

the Fourteenth Amendment. We also conclude that the

taking of respondent’s statements, and their admissions

into evidence, constitute no violation of that Clause.”

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

S. Ct. at 521-22.

The Supreme Court next considered whether Connelly’s

waiver of his constitutional rights was valid. The State

conceded at oral argument that when Connelly was

handcuffed, the custody requirement of Miranda was

satisfied. In reversing the Colorado Supreme Court’s

suppression of the statements made by Connelly after he

was in custody, the Supreme Court held:

“The sole concern of the Fifth Amendment, on which

Miranda was based, is governmental coercion. See

United States v. Washington, 431 U. S. 181, 187, 52

L. Ed. 2d 238, 245, 97 S. Ct. 1814, 1818] (1977);

Miranda, (348 U. S., at 460, 16 L. Ed. 2d at 715, 86S.

Ct. at 1620]. Indeed, the Fifth Amendment privilege

is not concerned ‘with moral and psychological pres-

————eEo7~————-- evr"

App. 37

sures to confess emanating from sources other than

official coercion.’ Oregon v. Elstad, 470 U. S. 298, 305,

84 L. Ed. 2d 222, 229, 105 S. Ct. 1285, 1290] (1985).

The voluntariness of a waiver of this privilege 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.

The Supreme Court continued, “Respondent’s perception

of coercion flowing from the ‘voice of God,’ however impor-

tant or significant such a perception may be in other

disciplines, is a matter to which the United States Constitu-

tion does not speak.” Connelly, 479 U.S. at 170-71, 93 L. Ed.

2d at 487, 107 S. Ct. at 523-24.

In basing its ruling on Connelly, the trial court focused

on its penultimate holding: for a confession to be “involun-

tary” under the due process clause, there must be coer-

cive police activity. In doing so, the trial court did not

address Connelly’s instruction that inquiries into the

state of mind of a criminal defendant who has confessed

are to be resolved by state laws governing the admission of

evidence: “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.” Connelly, 479 U.S. at 167, 93 L. Ed. 2d at 484,

107 S. Ct. at 521-22.

The Illinois Supreme Court addressed the admissibility

of confessions made by persons with special needs many

decades prior to Connelly being decided. In People uv.

Klyczek, 307 Ill. 150 (1923), the court considered the

admissibility of the confession of a 16-year-old-Polish youth

who averred that he did not understand the questions he

was asked and that the confession written by the police

was never read to him. The court held:

App. 38

“The situation in which the plaintiff in error was placed

and the circumstances surrounding him at the time

were proper to be taken into consideration by the court

in determining the competency of the confession,

including his youth and inexperience, his character, his

intelligence, his strength of intellect, his knowledge

or ignorance, and the fact that he was detained in

prison and was interrogated by the police officer who

held him in custody. *** The question of admissibility

is finally whether, considering all the circumstances of

this particular case, they were such that the statement

of the plaintiff in error might have been induced by

their influence to make a false confession.” Klyczek, 307

Ill. at 154-55.

In People v. Lambersky, 410 Ill. 451 (1951), the supreme

court considered the admissibility of a murder confession

made by a defendant who had resided at the “Dixon State

Hospital for mentally deficient persons, having been

adjudicated feeble-minded by the circuit court of Cook

County about thirteen years prior thereto.” Lambersky, 410

Ill. at 453. The court held that confessions “involve a waiver

of the constitutional right against self-incrimination and

an intentional relinquishment of a known right. As an

insane person cannot know of his constitutional rights, his

confession is regarded as a nullity and cannot be treated as

evidence against him. (People v. Shroyer, 336 Ill. 324

[(1929)]}).” Lambersky, 410 Ill. at 455.

In People v. Hester, 39 Ill. 2d 489 (1968), the court

reviewed the admissibility of a murder confession made

by a 14 year old whose mental age and abilities would

have been approximately those of an 11 year old at the

time he confessed. The court held:

“The general rule is that subnormal mentality does not

ipso facto make a confession involuntary ‘so long as the

subnormality has not deprived the person in question

~ Poe

App. 39

of the capacity to understand the meaning and effect of

the confession. But mental subnormality is a factor to

be considered in determining the issues of voluntari-

ness and admissibility, and, where accompanied by

other factors indicative of an absence of voluntariness,

will require that the confession be excluded.’ (Annot., 69

A.L.R. 2d 348, 350; see State v. Ordog, 45 N.J. 347, 212

A.2d 370, 377; People v. Lara, 62 Cal. Rptr. 586, 601.)”

Hester, 39 Ill. 2d at 500.

Hester’s holding that a nontreating defense psychiatric

expert could not give an opinion based upon statements

made to him by the accused because of the self-serving

nature of the statements was overturned by People v.

Anderson, 1138 IIl. 2d 1, 13 (1986). However, Hester has been

cited as good law as recently as People v. Wiley, No. 86557,

slip op. at 9-10 (October 25, 2001).

In People v. Turner, 56 Ill. 2d 201 (1973), the court

considered the admissibility of a murder confession made

by a person who lived at the Polk State School for men-

tally retarded children from the time he was 8 until he

escaped at the age of 18. The court said:

“This court has long recognized that the mental capac-

ity of a defendant must be taken into consideration in

determining whether his actions were voluntary (People

v. Klyczek, 307 Ill. 150, 155) and while mental defi-

ciency, of itself, does not render a confession involun-

tary (People v. Hester, 39 I11.2d 489) it is a factor which

must be considered in the totality of the circumstances

under which the right to counsel was waived or a

statement or confession made.” (Emphasis added.)

Turner, 56 Ill. 2d at 206.

Turner cites Hester for the proposition that “mental

deficiency, of itself, does not render a confession involun-

tary.” This leaves out the accompanying phrase, “so long

as the subnormality has not deprived the person in ques-

App. 40

tion of the capacity to understand the meaning and effect

of the confession.” People v. Hester, 39 Ill. 2d at 500. The

Turner court based its suppression of the defendant’s

confession on its finding that the defendant did not make

an intelligent and knowing waiver of his rights and that

defendant told the polygraph examiner that he wanted

a lawyer before he confessed. Turner, 56 Ill. 2d at 207.

Consequently, the fact that the Turner court left out the

additional language from Hester does not indicate that

the court disagreed with the proposition that, where

mental deficiency deprives a person of the capacity to

understand the meaning and effect of his ir her confession,

that confession may be involuntary.

In People v. Simmons, 60 Il. 2d 173, 181 (1975), the court

cited the above language in Turner in reversing and

remanding a trial court’s denial of a motion to suppress the

confession of a 16 year old who was “borderline mentally

retarded.” The court also held:

“Whether a statement was voluntarily given must be

determined from ‘the totality of the circumstances’

(People v. Prim, 53 I[ll.2d 62, 70) and consideration

must be given to ‘both the characteristics of the ac-

cused and the details of the interrogation.’ Schneckloth

v. Bustamonte, 412 U.S. 218, 226, 36 L. Ed. 2d 854, 862,

93 S. Ct. 2041, 2047.” Simmons, 60 Ill. 2d at 179.

The court also held that when considering whether a

juvenile’s confession is admissible, “‘the greatest care

must be taken to assure that the admission was voluntary,

in the sense not only that it was not coerced or suggested,

but also that it was not the product of ignorance of rights

or of adolescent fantasy, fright or despair.’” Simmons, 60

Ill. 2d at 18, quoting Jn re Gault, 387 U.S. 1, 55, 18 L. Ed.

2d 527, 561, 87 S. Ct. 1428, 1458 (1967).

Our supreme court considered this long line of its prece-

dent and the holding in Connelly in the seminal case of

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App. 41

People v. Bernasco, 138 Ill. 2d 349 (1990). In Bernasco, the

defendant was 17 years old and a psychologist testified that

he could not understand Miranda, warning. The trial court

found that “though the confession was not coerced or

otherwise the product of improper police conduct, and

though the confession was preceded by Miranda warnings

[citation], defendant’s intelligence level was so low that

his Miranda waiver and his confession were neither

voluntary nor knowing.” Bernasco, 138 Ill. 2d at 351. In

analyzing Connelly, the court said:

“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 involv-

ing no question of waiver), the voluntariness of the

confession being at issue, and (2) subsequent confes-

sions 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 cursorily 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 ‘di-

vorced from any coercion *** 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.).” (Emphasis omitted.) Bernasco, 138 Ill. 2d

at 356.

Significantly, the Bernasco court said that the State

evidence rules to be applied considered the reliability of

the statement, a consideration we will address later.

Bernasco, 138 Ill. 2d at 353. The court addressed Illinois

precedent as follows:

or) s

App. 42 -

“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,

familiarity with the English language, age, education,

and experiences are among factors to be weighed in

determining from the totality of the circumstances

whether a confession 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 treated as a categorical

exception under Illinois law, the confession of an in-

sane person is involuntary per se. (People v. Lambersky

(1951), 410 Tl. 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 suppress confessions as involuntary).) The

line of Miranda cases represented by Burbine, Connelly,

Spring, and Patterson has now seemingly settled, for

Federal constitutional purposes, that voluntariness and

intelligent knowledge are separate questions; however,

for purposes of our own evidence law they are interre- |

lated.” (Emphasis added.) Bernasco, 138 Ill. 2d at 365.

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The clear import of the above language is that Illinois

courts must consider intelligent knowledge as a compo-

nent of a confession’s overall voluntariness independently

of Miranda. Consequently, courts must consider whether

a statement was made with intelligent knowledge even

in those instances where Miranda does not apply. This

proposition is further supported by other language in

App. 43

Bernasco: “We now turn to the question whether the mani-

fest weight of the evidence contradicts the trial court’s

finding that defendant did not waive his Miranda rights

or give his confession knowingly and intelligently.” (Em-

phasis added.) Bernasco, 138 IIl. 2d at 367.

Our supreme court addressed the issue of whether a

mentally handicapped juvenile’s confession was admissible

in In re W.C., 167 Ill. 2d 307 (1995). The court stated:

“For a defendant’s confession to be admitted at trial,

the State must first prove by a preponderance of the

evidence that the defendant validly waived his privilege

against self-incrimination and his right to counsel. (See

People v. Reid (1990), 136 Ill. 2d 27, 56). To be valid, the

waiver must reflect an intentional relinquishment

or abandonment of a known right or privilege. The

accused must possess a full awareness of both the

nature of the right being abandoned and the conse-

quences of the decision to abandon it. (See People v.

Bernasco (1990), 138 Ill. 2d 349, 360 * * *). To waive

rights intelligently and knowingly, one must at

least understand basically what those rights encom-

pass and minimally what their waiver will entail.

The mental state that is necessary to validly waive

Miranda rights involves 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. See Bernasco, 138 Ill. 2d

at 360.

Whether a defendant intelligently waived his right

to counsel depends, in each case, on the particular

facts and circumstances of that case, including the

defendant’s background, experience, and conduct.

(Bernasco, 138 II]. 2d at 368.) The mental capacity of

a defendant must be taken into consideration in deter-

mining whether a waiver was valid, and while mental

App. 44

deficiency, of itself, does not render a statement unin-

telligent, it is nonetheless a factor which must be

considered in the totality of the circumstances under

which the right to counsel was waived or a statement

or confession given. (See People v. Turner (1973), 56 Ill.

2d 201, 206.) The greatest care must be taken to as-

sure that a juvenile’s incriminating statement was not

the product of ignorance of rights or of adolescent

fantasy, fright or despair. See People v. Prude (1977), 66

Ill. 2d 470, 476 (citing cases).” In re W.C., 167 Ill. 2d

at 327-28.

The W.C. court’s references to a statement being unintelli-

gent and its holding that the the mental capacity of a

defendant is a factor which must be considered “in the

totality of the circumstances under which the right to

counsel was waived or a statement or confession given” (Jn

re W.C., 167 Ill. 2d at 328) support the proposition that

when a mentally handicapped person makes a statement

or confession, the court must not only determine wheth-

er the defendant voluntarily waived his constitutional

rights, the court must also determine whether the confes-

sion or statement itself was voluntary.

Consequently, when the trial court ruled that Braggs’

statements to the police were admissible because she was

not in custody and Miranda was inapplicable, it was in

error. Likewise, the court’s ruling that, in the absence of

police coercion or the defendant being in custody, the fact

that Braggs was mentally handicapped was to be consid-

ered only as to the weight to be given her statements

and not as to whether those statements were inadmissible,

was in error. The court should have considered whether

Braggs’ statement to the detectives was voluntary in a

State law sense based upon the totality of the circum-

stances. People v. Bernasco, 138 Ill. 2d at 356. One of the

factors that the court should have considered was wheth-

er Braggs’ mental retardation deprived her of “the capacity

Le ee.

App. 45

to understand the meaning and effect of the confession.”

People v. Hester, 39 Ill. 2d at 500. This is particularly

important in the present case, where the trial court found

the defendant was incapable of waiving her rights under

Miranda due to her diminished mental capacity.

As a practical matter, when a court determines that

a defendant is capable of knowingly and intelligently

waiving his or her constitutional rights, any confession or

statement given by that defendant would also probably

have been voluntary in that it was made knowingly and

intelligently. Conversely, if a person is not capable of

waiving his or her rights, his or her mental disability

may well deprive him or her of the capacity to understand

the meaning and effect of the confession. This is true even

in the absence of coercion or police misconduct, such as in

the present case. See In re M.W., 314 Ill. App. 3d 64, 71

(2000) (if a Miranda waiver is not made intelligently and

knowingly, a confession is not voluntary under Illinois law,

even though the police satisfied federal constitutional

safeguards). Consequently, when a court determines that

a defendant is incapable of knowingly and intelligently

waiving his or her rights, the court has an additional

affirmative duty to determine whether the defendant’s

statement or confession was given voluntarily.

“Whether a statement is voluntarily given depends

upon the totality of the circumstances. The question

must be answered on the facts of each case; no single

fact is dispositive. Factors to consider when determin-

ing voluntariness include: the defendant’s age, intelli-

gence, background, experience, mental capacity, educa-

tion, and physical condition at the time of question-

ing; the legality and duration of the detention; the

duration of the questioning; and any physical or mental

abuse by police, including the existence of threats or

promises. People v. Melock, 149 Ill. 2d 423, 447-48

(1992); see People v. Haymer, 154 Ill. App. 3d 760, 770

App. 46

(1987) (collecting cases).” People v. Gilliam, 172 Ill. 2d

484, 500-01 (1996).

Another factor to consider is the defendant’s familiarity

with the English language. People v. Marts, 266 Ill. App. 3d

531, 539 (1994). Our courts have added additional factors to

consider in cases involving juveniles. These same factors

are relevant to cases involving defendants who have the

mental capacity of children. Perhaps the most important

such factor is the presence of a parent or other adult

concerned about the defendant’s welfare. People v.

Kolakowski, 319 Ill. App. 3d 200, 213 (2001). The need for

close scrutiny of confessions from mentally handicapped

persons by all concerned cannot be overstated. In 1967, the

Supreme Court addressed its concern in cases involving

confessions by juveniles when it held “the greatest care

must be taken to assure that the admission was voluntary,

in the sense not only that it was not coerced or suggested,

but also that it was not the product of ignorance of rights

or of adolescent fantasy, fright or despair.” Jn re Gault,

387 U.S. at 55, 18 L. Ed. 2d at 561, 87S. Ct. at 1458. This

heightened concern in reviewing the admissibility of

confessions given by juveniles should also be required in

reviewing the admissibility of confessions by the men-

tally handicapped. As previously discussed, our supreme

court has expressed these same concerns, including the

possibility that such persons may falsely confess, in an

unbroken line of cases since at least 1923. See People v.

Klyczek, 307 Ill. 150.

In June of this year, the Supreme Court held that execu-

tions of mentally retarded criminals were “cruel and

unusual punishment” prohibited by the eight amendment.

Atkins v. Virginia, 536 U.S. __, 153 L. Ed. 2d 335, 122

S. Ct. 2242, (2002). In so holding, the Court said “some

characteristics of mental retardation undermine the

strength of the procedural protections that our capital

jurisprudence steadfastly guards.” Atkins, 536 U.S. at __.,

nines

App. 47

153 L. Ed. 2d 335 at 348, 122 S. Ct. at 2250. One of the

bases espoused by the majority was the “reduced capacity”

of mentally retarded offenders. As a result of this reduced

capacity, mentally retarded defendants may be less able

to give meaningful assistance to their counsel; they make

poor witnesses and the possibility of false confessions

is enhanced. Atkins, 536 U.S. at __, 153 L. Ed. 2d 335

at 350, 122 S. Ct. at 2251-52.

The Diagnostic and Statistical Manual of Mental Disor-

ders (4th ed. text rev. 2000) (hereinafter DSM-IV-TR)

defines mental retardation as consisting of three features.

The essential first feature is a significantly below-average

general intellectual functioning as defined by the intelli-

gence quotient (I.Q.). DSM-IV-TR at 41. This is accompa-

nied by significant limitations in adaptive functioning.

“Adaptive functioning refers to how effectively individuals

cope with common life demands and how well they meet

the standard of personal independence expected of some-

one in this particular age group, sociocultural background,

and community setting.” DSM-IV-TR at 42. Finally, the

onset must occur before the age of 18 years. DSM-IV-TR

at 41.

Mental retardation is classified by its degree of severity.

The “highest” classification is “mild” mental retardation,

and it applies to persons with I.Q. levels of 50 to 55 to

approximately 70. DSM-IV-TR at 43. This group consti-

tutes about 85% of those with the disorder. This group

used to be referred to as “educable.” “By their late teens,

they can acquire academic skills up to approximately the

sixth-grade level. During their adult years, they usually

achieve social and vocational skills adequate for minimum

self support, but may need supervision, guidance, and

assistance, especially when under unusual social or eco-

nomic stress.” DSM-IV-TR at 43.

The second classification is “moderate” mental retarda-

tion, and it applies to persons with I.Q. levels of 35 to 40

App. 48

to 50 to 55. DSM-IV-TR at 42. This group constitutes

about 10% of those with the disorder. This group used to

be referred to as “trainable.” They are unlikely to prog-

ress beyond the second-grade level in academic subjects.

DSM-IV-TR at 43. Dr. Pan testified that Braggs belonged

in this category.

“Severe” mental retardation applies to person with I.Q.

levels of 20 to 25 to 35 to 40. “Profound” mental retardation

applies to person with I.Q. levels below 20 to 25. DSM-IV-

TR at 42.

Numerous law review articles have recently been writ-

ten regarding the issues faced by the criminal justice

system in dealing with mentally retarded suspects. See

M. McCloud, Words Without Meaning: The Constitution,

Confessions and Mentally Retarded Suspects, 69 U. Chi. L.

Rev. 495 Spring (2002), 495, (McCloud) for a comprehen-

sive listing. In McCloud, the authors conducted tests to

determine whether mentally retarded persons could

understand the Miranda warnings. They concluded that,

regardless of the level of disability, the mentally retarded

subjects did not understand the Miranda warnings. Fur-

ther, this inability was not lessened by the factors of the

person’s age, education or prior experience with the crimi-

nal justice system, including prior administration of the

Miranda warnings. 69 U. Chi. L. Rev. at 538.

The authors cited several studies which indicated that

mentally retarded suspects are more likely to confess to

crimes they did not commit than do suspects of average

intelligence. 69 U. Chi. L. Rev. at 503. This is true even in

the absence of police overreaching. The authors specifically

criticize Colorado v. Connelly’s exclusive focus upon gov-

ernmental coercion. The authors assert that for a con-

fession by a mentally retarded person to be admissible, it

should be made knowingly and intelligently, and to deter-

mine this, courts must look to the “state of mind,” the

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App. 49

intellectual and psychological capacity, of the person. 69 U.

Chi. L. Rev. at 586-87. As previously explained in this

opinion, for the last 80 years the supreme court of Illinois

has required our courts to consider the mental capacity

of the defendant as a factor when determining the admis-

sibility of a confession.

Similarly, our supreme court first expressed its con-

cern with the possibility that a person with limited commu-

nication skills might falsely confess some 80 years ago.

People v. Klyczek, 307 Ill. at 155. Clearly, the best evi-

dence to consider in determining whether a confession is

false is the credibility of the confession itself. During the

discharge hearing in the instant case, Braggs’ statement

was admitted. In that statement, Braggs said she knocked

Rudolph to the floor, where he struck his head. However,

Rudolph died of strangulation. When a person of normal

intelligence provides false answers to the police, this is

considered to be deception and this is treated as evidence

of a “consciousness of guilt.” People v. Shaw, 278 Il. App. 3d

939, 951 (1996). Based upon our knowledge of the charac-

teristics of the mentally retarded, false answers may well

be the result of their desire to provide an answer they

believe will please the interviewer.

We note that our legislature has required our courts to

consider the reliability of statements made by children or

mentally retarded persons before those statements may

be admissible as exceptions to the hearsay rule. See 725

ILCS 5/115-10 (West Supp. 2001) (testimony regarding

certain out of court statements made by the victim are

admissible if: “[(b)](1) [t]he court finds in a hearing con-

ducted outside the presence of the jury that the time,

content and circumstances of the statement provide suffi-

cient safeguards of reliability; and (2) [t]he child or moder-

ately, severely or profoundly mentally retarded person

either: (A) testifies at the proceeding; or (B) is unavailable

as a witness and there is corroborative evidence of the act

App. 50

which is the subject of the statement”). Similar language is

also used in section 115-10.3, entitled “Hearsay exception

regarding elder adults.” 725 ILCS 5/115-10.3 (West Supp.

2001). These additional safeguards are required to en-

sure that certain evidence provided by mentally handi-

capped and child victims is reliable. These same concerns

are present in cases involving confessions by mentally

handicapped persons. They are also present in cases

involving confessions by children, but that issue is not

before us.

Based on all the above reasons, we reverse the order of

the trial court denying Braggs’ motion to suppress state-

ments. We remand this matter for a new hearing on the

motion to suppress. At that hearing, the trial court must

consider the reliability of Braggs’ statement and whether

the statement was made voluntarily. In making this

determination, the court must consider all of the factors

set out by our supreme court in People v. Gilliam, 172 Il.

2d at 500-01 (and the cases cited herein). The court must

also determine whether Braggs’ mental retardation de-

prived her of the capacity to understand the meaning and

effect of her confession. After making this determination,

the trial court is to conduct a new discharge hearing

pursuant to section 104-25 of the Code of Criminal Proce-

dure of 1963 (725 ILCS 5/104-25 (West 1996). We note

that much of the evidence presented at the motion to sup-

press hearing was unavailable to the court which con-

ducted the 1996 discharge hearing.

Reversed and remanded with instructions.

CAMPBELL, P.J., and GREIMAN, J., concur.

App. 51

IN THE CIRCUIT COURT OF

COOK COUNTY, ILLINOIS

PEOPLE OF THE STATE )

OF ILLINOIS )

) NO. 93 CR 16707

v. )

)

MARY BRAGGS )

ORDER

This cause coming to be heard for Defendant’s Motion to

Suppress Statements, said motion being granted in part

and denied in part, IT IS HEREBY ORDERED:

That Judge Richard Neville’s ruling of June 27, 1996,

wherein the defendant was found not not guilty and her

treatment period was extended 5 years until June 27,

2001, is hereby reinstated. The defendant is recommitted

to DHS, Alton Mental Health Center, for further treatment

until June 27, 2001. DHS shall file a status report with the

Court every 90 days.

November 17, 2000

s/

Stanley Sacks

Judge

ENTERED

HARRIET CONDELEE

NOV 17 2000

CLERK OF CIRCUIT COURT

CRIMINAL DIVISION

JUDGE

AURELIA PUCINSKI, CLERK OF THE CIRCUIT

COURT OF COOK COUNTY, ILLINOIS

App. 52

FIFTH DIVISION

December 28, 1998

No. 1-97-0726

THE PEOPLE OF THE STATE _) Appeal from the

OF ILLINOIS, ) Circuit Court of

) Cook County

Plaintiff-Appellee, )

V. ) No. 93 CR 16707

)

MARY BRAGGS, ) Honorable

) Richard E. Neville,

Defendant-Appellant. ) Judge Presiding.

PRESIDING JUSTICE HOURIHANE delivered the

opinion of the court:

On July 23, 1993, defendant Mary Braggs was indicted

on two counts of first degree murder. On June 20, 1996,

after refusing to conduct a hearing on a pending motion

to suppress statements, the circuit court found that de-

fendant was unfit to stand trial and, in all probability,

would remain so indefinitely in light of her untreatable

mental retardation. A discharge hearing followed. Therein,

the circuit court found that the evidence introduced

against defendant was sufficient to establish her guilt of

first degree murder beyond a reasonable doubt. The cir-

cuit court then remanded defendant to the Department

of Mental Health and Developmental Disabilities for a pe-

riod of five years.

On appeal, defendant contends that (1) the circuit court

erred in refusing to conduct a hearing on her motion to

suppress statements and (2) the evidence introduced

App. 53

against her was not sufficient to establish her guilt of

first degree murder beyond a reasonable doubt.

For the reasons that follow, we remand.

BACKGROUND

On June 23, 1994, almost one year after her indictment,

defendant was examined by Dr. Roni Seltzberg, a psychia-

trist charged with assessing her fitness to stand trial.

Based upon that examination, a fitness hearing was

scheduled.

Prior to that hearing, defendant, through counsel, filed

a motion to suppress all statements she made to vari-

ous law enforcement officials, both at the time of her

arrest and thereafter. Within that motion, defendant

alleged that she was interrogated following her arrest on

June 23, 1993, during which time she made statements

that were not voluntary. According to defendant, although

she was duly advised of her constitutional rights upon

arrest, she was nevertheless unable to understand their

full meaning because of her mental retardation. Defendant

also alleged that her statements were obtained through

psychological and mental coercion.

Shortly thereafter, the circuit court conducted a fitness

hearing. At that hearing, Dr. Seltzberg testified that de-

fendant, although aware of the nature of the charges

against her, had a very limited understanding of the

roles of the pertinent courtroom personnel and an equally

poor understanding of the nature of the proceedings

against her. Dr. Seltzberg concluded that, based upon her

examination, defendant was not fit to stand trial, but may

attain such fitness within one year, depending upon the

seriousness of her mental retardation.

Counsel for defendant offered no evidence to the con-

trary.

App. 54

The circuit court, after considering the evidence before

it, accepted the testimony of Dr. Seltzberg and found

defendant unfit to stand trial. In light thereof, the circuit

court refused to consider the pending motion to suppress.

Counsel for defendant objected, arguing that pursuant

to section 104-11 of the Code of Criminal Procedure of

1963 (725 ILCS 5/104-11 (West 1994)), the circuit court

could hear such a motion in that the presence of defendant

was not essential to a fair determination of the issues

therein. The circuit court, disagreed, reasoning that

defendant could not be unfit for some purposes, yet fit

for others.

On May 16, 1996, almost two years later, defendant

was examined by Dr. Philip Pan, another psychiatrist.

A hearing regarding the continuing unfitness of defen-

dant was conducted shortly thereafter.

At that hearing, Dr. Pan testified that defendant re-

mained unfit to stand trial in light of her continuing

inability to understand the roles of the various courtroom

personnel or the nature of the proceedings against her. Dr.

Pan also testified that, based upon his examination,

defendant would never be restored to the fitness necessary

to stand trial because of the untreatable nature of her

mental retardation.

No other fitness evidence was presented.

The circuit court then found, based upon the testimony

of Dr. Pan, that defendant was still unfit to stand trial,

and that she would remain so indefinitely.

A discharge hearing followed.

Therein, the State called Chicago police detective Allen

Szudarski. He testified that he discovered the bodies of

Connie Hall and Donald Rudolph on April 28, 1993, inside

a ransacked first-floor apartment located at 4135 South

App. 55

Prairie Avenue in Chicago. Hall was lying in a bedroom

partially covered by a blanket. She had been stabbed

multiple times in her back and side. Rudolph was lying

in a hallway nearby. He had an injury to his chest. Both

Hall and Rudolph were covered with blood.

Chicago police detective E. Winstead, as stipulated by

the parties, testified that he interviewed defendant on

May 9, 1993, and was told that Rudolph let Ron Thomas

and another, taller black man into his apartment. Defen-

dant was also present in the apartment at that time.

Detective Winstead was further told that the taller man

began to choke Rudolph, at which time defendant hid

herself in a closet.

Detectives from the Chicago police department subse-

quently located Thomas, who, at the time he was found,

was in the company of another, taller black man, Michael

Wilburn. Both Thomas and Wilburn were alcoholics, and

both denied any wrongdoing.

Defendant was then requestioned by detective Winstead.

Detective Winstead stated that defendant then changed

her story, claiming that she had previously been mistaken.

Hall and Rudolph, defendant now explained, were not

murdered by Thomas or anyone that she knew, but rather

by two unknown black men who followed her home from

the store.

Next, Chicago police detective James Cassidy testified

that he interviewed defendant on June 25, 1993, after

duly advising her of her constitutional rights. Defendant

told him that she and Hall were in the apartment togeth-

er when Rudolph returned. Rudolph was drunk and

became violent, striking both her and Hall. Defendant

explained that she then knocked Rudolph to the floor of

the living room where he struck his head. Hall, in turn,

became upset and accused her of killing Rudolph. Accord-

ing to detective Cassidy, defendant further stated that

App. 56

Hall was stabbed a number of times in her upper body,

and that she held Hall in her arms. Thereafter, defendant

returned to the bedroom where she slept until the follow-

ing morning. Upon waking, she gathered her clothes,

which included a pair of white pants she had been wearing

the prior evening, and left. Defendant further told detec-

tive Cassidy that she later discarded those pants because

they no longer fit, not because they were blood-stained.

Also introduced into evidence was a stipulation that Hall

died from numerous stab wounds, and that Rudolph died

as a result of strangulation.

In her defense, defendant introduced a stipulation that,

if called, detective Winstead would testify that he inter-

viewed Arthur Collins, who, in addition to being Hall’s

uncle was also the last border his niece and Rudolph

allowed in their apartment. Collins told detective Winstead

that he moved earlier in April 1993 because there was

too much activity and too many strangers in the apart-

ment.

The circuit court, after considering the arguments of

counsel, found the evidence introduced against defendant

sufficient to establish her guilt of first degree murder

beyond a reasonable doubt. The circuit court then re-

manded defendant to the Department of Mental Health

and Developmental Disabilities for a period of five years.

Defendant appealed.

DISCUSSION

I.

Defendant initially contends that the circuit court erred

in refusing to conduct a hearing on her motion to suppress

statements. According to her, the provisions of section 104-

11 of the Code of Criminal Procedure clearly envision a

App. 57

circuit court conducting such a hearing, notwithstanding

a prior finding of unfitness.

Section 104-11 of the Code provides, in pertinent part,

as follows:

“Following a finding of unfitness, the court may hear

and rule on any pretrial motion or motions if the defen-

dant’s presence is not essential to a fair determination of

the issues. A motion may be reheard upon a showing

that evidence is available which was not available, due

to the defendant’s unfitness, when the motion was first

decided. (Emphasis added.) 725 ILCS 5/ 104-11(d) (West

1996).

The foregoing provisions address themselves to all

pretrial motions generally, which, by definition, includes

motions to suppress. 725 ILCS 5/114-11 (West 1996).

Accordingly, the circuit court erred in refusing to conduct

a hearing on defendant’s motion to suppress unless it

can be said that the presence of defendant was essential

to a fair determination of the issues raised therein.

Here, however, counsel for defendant specifically advised

the circuit court, prior to the discharge hearing, that the

presence of defendant was not necessary for a fair determi-

nation of the issues presented within her motion to

suppress. Counsel for defendant also informed the cir-

cuit court that Dr. Linda Wetzel, a privately-retained

psychologist, had examined defendant and would testify

that the latter could not understand the constitutional

rights of which she was admittedly advised due to the

severity of her mental retardation. The circuit court

was further informed that counsel for defendant

would introduce evidence he believed would establish

mental and psychological coercion in connection with the

statements given by his client.

The circuit court declined to conduct a hearing on that

motion, reasoning that, as a matter of law, a finding of

App. 58

unfitness to stand trial necessarily precludes any hear-

ing on a motion to suppress.

A finding of unfitness to stand trial does not necessarily

preclude a hearing on a motion to suppress. See People

v. Lavold, 262 Ill. App. 3d 984, 1003-004, 635 N.E.2d

919 (1994) (McNulty, J., dissenting); People v. Fuhrman,

233 Ill. App. 3d 503, 507, 599 N.E.2d 478 (1992); People

v. Burt, 142 Ill. App. 3d 833, 837, 492 N.E.2d 233 (1986).

Indeed, the provisions of section 104-11(d) of the Code

expressly and explicitly allow for such a hearing, notwith-

standing a prior finding of unfitness, where the presence

of the defendant is not essential to a fair determination of

the issues raised therein. 725 ILCS 5/104-11(d) (West

1996). As the aforementioned offer of proof established,

the presence of defendant was not essential to a fair

determination of the issues raised within her motion to

suppress. The circuit court therefore erred in refusing to

conduct a hearing on that motion.

Il.

Defendant next contends that the evidence introduced

against her was insufficient to establish her guilt of first

degree murder beyond a reasonable doubt.

To the contrary, however, the evidence introduced

against defendant, when viewed in its aspect most favor-

able to the State, was sufficient to establish her guilt

beyond a reasonable doubt.

CONCLUSION

For the aforementioned reasons, we remand this matter

for a hearing on the motion to suppress statements. In the

event that motion is granted and the statements of

defendant are suppressed, the circuit court shall conduct

App. 59

a new discharge hearing at its earliest possible conve-

nience.

Remanded with directions.

HARTMAN and THEIS, JJ., concur.