# Appendix — Illinois v. Braggs

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Appendix
- **Published:** January 1, 2005
- **Citation:** 543 U.S. 1049

## Text

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

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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.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386008_0911%3A2. Public record. Not legal advice.