Opposition Brief — Illinois v. Braggs

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» BE 19 2004

(3) OFFICE OF THE CLERK

No. 04-0126

IN THE

SUPREME COURT OF THE UNITED STATES

The State of Illinois,

Petitioner,

VS.

‘Mary Braggs,

Respondent.

ON PETITION FOR A WRIT OF CERTIORARI TO

THE SUPREME COURT OF ILLINOIS

RESPONDENT’S BRIEF IN OPPOSITION TO THE |

PETITION FOR A WRIT OF CERTIORARI

Edwin A. Burnette,

Public Defender of Cook County

69 WestWashington, 15". Floor |

Chicago, Illinois 60602

(312) 603-0600

Counsel For Respondent

Of Counsel:

Vicki Rogers,

Bruce C. Landrum,

Assistant Public Defenders

QUESTION PRESENTED

Whether a court must consider a defendant's mental

capacity when determining whether the defendant was “in

custody” for purposes of Miranda v. Arizona?

TABLE OF CONTENTS

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RO CE PRAIIIIIOG accinciisarsacsiesescedacutaanmnibancnaaia iV

TOOT Bt COORIEIOR oan scscensecsesvscecnssesncsvavnsateintuieiatseieianentanonannaln |

CODURIORS TIGIIW ....cerssnssssoreressesestemnsnsasseineesbeseenneeelennnneteninns I

SERGIO OE FIRE csecncsies nrssividescevciicintentianenbanecianenntenl l

Constitutional Provision Involved ................cccccscsecessscesssessees 2

SUROOORGM OF TD COND innssannninvsisnssisciantnaieanicanenisenneanains 3

Reasons for Denying the Petition ..........cccosessccesssssssessessaheosts 15

PETITIONER’S CHALLENGE TO THE ILLINOIS

SUPREME COURT?’S DECISION, SUPPRESSING

RESPONDENT’S CONFESSIONS (GIVEN ON JUNE

25, 1993)- WHICH THE COURT DETERMINED AS

CUSTODIAL IN NATURE-FAILS TO PROVIDE THE

REQUISITE CIRCUMSTANCES THAT JUSTIFY

THIS COURT’S JURISDICTION UNDER 28 U.S.C.

§1257 (1), AS THE ILLINOIS DECISION WAS BASED

ON ADEQUATE AND INDEPENDENT STATE

CSC R PRI oo encsusrsicncsinessscstjnatnennendceieaialeagnatuamemaaiatass 15

IT.

THE ILLINOIS SUPREME COURT’S DECISION

SHOULD BE AFFIRMED WHERE IT IS GROUNDED

ON ILLINOIS LAW THAT IS NOT IN CONFLICT

WITH DECISIONS OF THIS COURT..................... 19

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TABLE OF AUTHORITIES

Cases:

Alvarado v. Hickman, 316 F. 3d. 841

‘ee Ae) ER eee eo. 15,16,17,19, 20

Coleman v. Thompson, 501 U.S. 722, 115 L. Ed. 2d. 640,

GEG Re & Be |__| MERCER eRe MET en C MES aE 16

Herb v. Pitcairn, 324 U.S. 117, 89 L. Ed. 2d. 789, 65 S.Ct.

Fe eR ith ces dicainaaaiichlinnhicceasbatnechiaaaeamanianiaaiadilimammints 16

Illinois v. Rodriquez, 497 U.S. 177, 111 L. Ed 2d 148, 1101

Sc Se Ae I aecstcsleniiniebhasiatcicncinanscheisieat cha stadiaiathiaaliaia 15,16

in re; J.W., 274 Tl. App. 3d. 951 (1955).............cccscsssee0 17,21

Michigan v. Long, 463 U.S. 1032, 77 L. Ed. 2d 120, 103 S.

GX, ARI a Be tek erinrenstincccreceihcaasiapibiiicadledanibeceibiahe ta etiacnbalecadaitibatiiie 16

Miranda v. Arizona, 384 U.S. 436, 16 L.Ed. 2d 694, 86 S.Ct.

SOR CE bins isihitestscneniniiisintanennibaaaniaidaiiaiamianiaemiiiniat passim

People v. Armstrong, 318 Ill. App. 3d. 607 (2000)......... 17,21

People v. Braggs, 209 Ill. 2d. 492 (2004) ..... eee passim

People v. Lucas, 132 Ill. 2d. 417 (1989)................ccccssssceeeees 21

People v. Patel, 313 Ill. App. 3d. 601 (2000)........... eee 17

Stansbury v. California, 511 U.S. 318, 128 L.Ed. 2d 293,

114 S.Ct 1526 (TFFB) onssssecsnsecsnssarvoessnsssovesnvessnsceseesenserssea BO 2D

U.S. v. Wauneka , 770 F. 2d. 1434 (9"" Cir. 1985) inlinitesasimalen

Yarborough v. Alvarado, 54] US.___, 124 S. Ct. 2140

CR Nee ase ctolntblhasih ulin nisi sheabpcarscas seta 19,24

Statute:

Ie ak BUN ERD iecisiccenilealsinspiaiicaitat se atric 15,19

Secondary sources:

P. Hourihane Earl Washington's Confessions: Mental

Retardation 81 Va. Rev. 1471 .o..cccccccccssssssessssssssessseeeecccccce. 23

BRIEF IN OPPOSITION

Respondent respectfully urges #%'s Court w deny the

petition for writ of certiorari to the Illinois Supreme Court.

OPINIONS BELOW

The opinion of the Illinois Supreme Court is reported

at 209 Ill. 2d 492 (2004). The opinion of the Illinois

Appellate Court, First District is reported at 335 Ill. App. 3d

52, 779 N.E.2d 475 (2002). The November 17, 2000, order

of the circuit court denying the respondent's motion to

Suppress is unreported. The opinion of the Illinois Appellate

Court, First District, in the respondent's first direct appeal is

reported at 302 Ill. App. 3d 602, 707 N.E.2d 172 (1998).

STATEMENT OF JURISDICTION

The original order and judgment of the Illinois

Supreme Court was entered on December 18, 2003. The

State filed a petition for rehearing. The Illinois Supreme

Court entered its final order and judgment on April 15, 2004,

when it denied the petition for rehearing and modified its

opinion upon the denial of the petition. This petition for a

writ of certi rari is filed within ninety days of the final order.

The jurisdiction of this Court is invoked under 28 U.S.C.

§ 1257 (A).

CONSTITUTIONAL PROVISION INVOLVED

The Fifth Amendment to the United States

Constitution provides in relevant part: “No Person... shall be

compelled in any criminal case to be deprived of life, liberty,

or property, without due process of law...”

STATEMENT OF THE CASE

Because Mary Braggs is retarded and was unfit for

trial, the circuit court declined to hold a hearing on her

motion to suppress her statements. (C.L. 15) Based on the

Statements and other evidence, the court found Ms. Braggs

“not guilty” of murder and remanded her to the Department

of Mental Health during a discharge hearing. (C.L. 13) The

Appellate Court reversed and remanded for a hearing on the

motion. (C.L. 21)

At the hearing on remand, the court suggested several

times during opening statements that Ms. Bragg’s statements

would not have to be suppressed if she was not in custody

when she made the statements. (A. 8, 9, 11) The court

commented, at another point, that it did not think anybody

disputed that Ms. Braggs was not fit for trial. (B. 8)

Evidence Offered By the Prosecution

Detective Edward Winstead testified for the

prosecution that on April 28, 1993, Don Rudoph and Connie

Hall were found murdered in their apartment at 4135 S.

Prairie. (A. 14, 36) In the course of the investigation, he tried

to locate and talk to a woman named Mary Braggs. (A. 15)

On May 7, 1993, he got a call from a woman named Survilla

Cameron. (A. 16) Cameron said Mary lived with her at 4839

S. Michigan. (A. 17, 36) Mary was illiterate and mentally

incompentent; and Ms. Cameron was Mary’s sister and her

guardian. (A. 16, 17, 49) Winstead and Detective Redmond

went to the residence and brought the two women to Area I.

(A. 17-18) He questioned Mary Braggs about the homicides

for possibly an hour. (A. 18-20) Communicating was very

difficult, as Mary was mentally deficient, in his opinion. (A.

19, 38, 43) She sat with her head down. (A. 38, 50)

Sometimes she wouldn't answer; or she would be very slow

in answering. (A. 19, 38) She wouldn't answer for minutes

at a time; and sometimes Ms. Cameron would repeat the

question or act as an interpreter. (A. 19, 49, 5 1)

Mary often directed her answers to Ms. Cameron or nodded

in agreement with what she said. (A. 19, 50) A lot of Mary's

responses were, “I don’t know” or “I don't recall.” (A. 39)

Her favorite expression was, “last thing I remember.” (A. 39)

At the end of the interview, Winstead drove the two women

home. (A. 21)

From the interview, Winstead learned, in summary,

that Mary was in the apartment. (A. 20) Two male blacks

came by the apartment. (A.20) There was an argument and

she hid in the closet. (A.20) When she came out, Connie had

been stabbed to death in the bedroom while wearing a white

nightgown; Don had been hit in the head with a wrench and

strangled to death in the front room. (A. 20-21) This was

very accurate as to how the victims died and where they were

found. (A. 21)

On May 9, 1993, Winstead returned to the women's

residence with Detective Redmond to see if he could get

more information or if Mary recalled more about the two

male blacks and the argument. He spoke to Mary in the

presence of Ms. Cameron for a half hour or so. Mary still

did not answer or was very slow in answering but at least

most of the time she spoke to him directly and looked at him

when she answered questions. (A. 21- 22) She told him one

man was named Ron, who was a friend of a man named

Cleo, and the other man was tall. (A. 22-23) Winstead had

iii interviewed someone named Ron Thomas who

was an acquaintance of both Cleo and the victims. (A. 23)

Winstead later picked up Ron Thomas and a tall man

named Mike who was with him and brought them to Area I.

They then picked up Ms. Braggs and Ms. Cameron, and

brought them to Area |. (A. 23) Winstead then interviewed

Ms. Braggs for the third time, and showed her photos of Ron

Thomas and Mike. (A. 25-26) She went back and forth about

Ron Thomas, saying yes it is and no it isn’t. (A. 25-26)

Winstead told her they were there at Area 1, and that she

could see them in person, but she said no. they were not the

guys. (A. 25-26)

Winstead then took the women to the crime scene and

asked Ms. Braggs to point out the location of the bodies and

the closet where she hid. (A. 27) She correctly pointed out

the location of the bodies. (A. 27) The closet she pointed out

did not appear to have enough room for both her and its

contents. (A.27-28) He then took the women home. (A.28)

On May 12, 1993, he arranged for Ms. Braggs to take

a lie detector test. (A. 28, 43) She was cooperative but the

examiner said she just didn't register enough emotion for the

test to work. (A. 28-29)

Winstead later went to the women’s residence again

on or about June 24, 1993. (A. 29, 46) Somebody told him

they had moved but would let them know he wanted to talk

to them again. (A. 29) Ms. Cameron called him the next day.

(A. 29) He and his partner went to the new residence and

brought the women back to Area |. (A. 30) Winstead then

told Ms. Cameron they were now looking at Ms. Braggs as a

potential suspect in the homicides; and read Ms. Braggs the

Miranda rights for the first time. (A. 31-33) She nodded her

head after each right. (A. 32) After an hour, Ms. Braggs was

arrested. (A. 34) Assistant State’s Attorney Gonsalves

arrived from Felony Review and had another conversation

with the women. (A. 34)

Evidence Offered by the Defense

Dr. Philip Pan testified that he’s a psychiatrist with

Forensic Clinical Services; he examined Mary Braggs on

May 16, 1995 and August 31, 1999. (B. 3-4) She was born in

1941. (B.11) She had been mentally retarded since at least

early childhood. (B.4, 27) He noted, among other things, that

her grooming and hygiene were marginal; her eye contact

was poor; her speech was simple, somewhat childlike and

loud; and her affect was flat. (B. 10-11) In 1996, he

concluded she was unfit for trial and not likely to be restored

to fitness any time in the near future. (B.4) In 1999, Dr. Pan

concluded she did not understand Miranda warnings and in

June of 1993, she would not have been able to understand the

warnings or to make a knowing and intelligent waiver of her

rights. (B. 10-14)

Dr. Linda Wetzel testified she’s a clinical

psychologist; she examined Mary Braggs on May 21, 1994

and October 1, 1999. (B. 32, 32, 50) Mary was born in 1941.

(B. 34) She had a full scale IQ of 54. (b. 36) She could not

read or write. (B. 35) She was not sure if she had been to

school. (B34) She scored the equivalent of a kindergartner

and a five-year-old on an arithmetic test and a vocabulary

test. (B. 35, 49) She was able to express herself on only a

childish level. (B. 36) Her body odor was bad. (B. 45) Her

clothing was unclean. (B.45) In 1994, Dr. Wetzel concluded

Mary was illiterate and mentally retarded. (B. 42) She was ‘

unable to understand her Miranda rights and unable to d)

cooperate with her attorney in preparing a defense. (B. 42)

She would not have understood her Miranda rights in June of

1993. (B. 44) In 1999, Dr. Wetzel concluded Mary’s mental

status was unchanged; she remained unable to cooperate with

her attorney and unable to cooperate with her attorney and

unable to understand her Miranda rights; and it was highly

unlikely she ever had the ability to comprehend her Miranda

rights to waive them. (B.51)

Evidence Offered By The Prosecution In Rebuttal

Assistant State’s Attorney Stanley Gonsalves

testified on June 25, 1993, he was assigned to Felony

Review. (C.7) Around 2:30 p.m. he went to Area | and spoke

to Detectives Winstead and Cassidy. (C. 7-8) They told him

Mary Braggs was in custody for a double homicide they were

investigating. (C. 8) She was a little slow. (C.9) She could

not read or write. (C. 16) Her sister, Survilla Cameron was in

the interview room with her. (C. 10) Gonsalves entered the

room with the detectives. (C. 9-10) He introduced himself

and advised Mary of her Miranda rights. (C.11) Mary did

not say anything or acknowledge any of the rights. (C. 13,

17) He tried to explain the rights in simple terms. (C. 13, 18)

He asked her if she wished to say anything to him and she

nodded her head in the affirmative. (C. 14, 18) They spoke

for about an hour. (C. 15) Communication was slow and

difficult. (C. 15) He did not take a written statement because

he determined she was illiterate. (C. 19)

Judgment Of The Trial Court

| The trial court reviewed cases cited by both sides and

heard arguments by both sides. (D.2-33) The court said the

case was probably the most unique he had seen. (D.2) He

noted that custody was an issue he had thought of before.

(D.17) He concluded that Ms. Braggs was not in custody

until after her statements to Detective Winstead on June 25,

1993. (D. 43) The court commented that in his view “there is

no suggestion whatever that the police did anything

physically to Mary Braggs, coercive to Mary Braggs, or in

any way did anything to her in the normal context of the

term...coerced to give a statement.” (D.36) The court

commented that her undisputed mental handicap “goes to the

weight of those statements, not to whether (sic) those

statement(s) were admissible.” (D. 45) The motion to

suppress was denied with respect to statements to the police

but granted with respect to statements to the Assistant State’s

Attorney. (D. 45) A motion to reconsider was argued and

denied. (F. 3, G. 4, H. 2-16) The court reasoned Ms. Braggs

could not understand Miranda but Miranda was not required

because a reasonable person in her position would not think

she was in custody or under arrest when she spoke to the

detectives. (H. 15-16) After further discussion, the court

decided a new discharge hearing was not required and

reinstated the prior order remanding Mary Braggs to the

Department of Mental Health for 5 years. ((I. 1-10) The

court reasoned that the judge at the initial hearing relied on

testimony about the June 25, 1993, conversation between the

police officers and Mary Braggs that was not suppressed. (I.

408) Because the judge relied on evidence that was not

suppressed, a new hearing was not necessary. (I. 5-8)

In People v. Braggs, 335 Ill. App. 3d 65, 779 N.E.2d

475 (2002), the Appellate Court reversed the trial court’s

ruling and remanded the case, directing the trial court to

conduct a new suppression hearing and to consider the

voluntariness of Ms. Braggs’ statement under state

evidentiary laws. On February 5, 2003, Petition for Leave to

Appeal was granted.

The Illinois Supreme Court allowed the State’s

petition for leave to appeal. Modifying the objective

reasonable person standard for determining custody for

purposes of Miranda, the Illinois Supreme Court held that

respondent was in custody when she gave her first statement

to the police because “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.” People v

Braggs, 209 Ill. 2d 492 (2004) The Illinois Supreme Court

reached that conclusion by citing the Ninth Circuit Court of

Appeals’ decision in Alvarado v. Hickman, 316 F.3d 841,

(9" Cir. 2002), along with several Illinois cases. The

Illinois Supreme Court affirmed the appellate court’s

decision to suppress the statements respondent made to the

detective prior to her formal arrest. Given the Illinois

Supreme Court’s disposition of the custody eit refused

to reach the voluntariness issue which the appellate court had

based its decision. People v. Braggs, 209 Ill.2d at 519.

REASONS FOR DENYING THE PETITION

PETITIONER’S CHALLENGE TO THE ILLINOIS

SUPREME COURT’S DECISION SUPPRESSING

RESPONDENT’S CONFESSIONS (GIVEN ON JUNE

25, 1993) WHICH THE COURT DETERMINED AS

CUSTODIAL IN NATURE - FAILS TO PROVIDE THE

REQUISITE CIRCUMSTANCES THAT JUSTIFY

THIS COURT’S JURISDICTION UNDER 28 U.S.C.

§1257(1), AS THE ILLINOIS DECISION WAS BASED

ON ADEQUATE AND INDEPENDENT STATE

GROUNDS.

In formulating its decision in the instant case, the

Illinois Supreme Court in People v. Braggs, 209 Ill. 2d 492

(2004) cited Alvarado v. Hickman, 316 F. 3d 84] (git Cir.

2002). However, it is clear that the decision itself is based on

adequate and independent state grounds. As such, it is not

subject to jurisdiction by this Court under 28 U.S.C. § 1257

(1). Thus, the instant petition should be denied.

The United States Supreme Court will not reverse a

state court decision which is clearly based on state law that is

both adequate and independent. Illinois v. Rodriquez, 497

U.S. 177, 111 L.Ed. 2d 148, 110 S. Ct. 2793 (1990);

Michigan v. Long, 463 U.S. 1032, 77 L. Ed. 2d 120, 103 S.

Ct. 3469 (1983). Citing Herb v. Pitcairn, 324 U.S. 117, 89

L.Ed. 2d 789, 65 S. Ct. 459 (1945), the Court in Long, stated

that its adherence to the above-stated principle is based in

part “on the limitation of our own jurisdiction’”— as well as its

respect for the independence of state courts. 103 S. Ct at

3476. Neither will the use of federal law “as a guide” to

invoke the jurisdiction of the Supreme Court, where the state

court indicated clearly and expressly that it is alternatively

basing its decision on a bona fide separate, adequate, and

independent state law. See Michigan v. Long, 463 U.S. —

1032, 77 L. Ed. 2d 120, 103 S. Ct. 3469 (1983); Coleman v.

Thompson, 501 U.S. 722, 115 L.Ed. 2d 640, 111 S. Ct. 2546

(1991).

In the case at bar, the Illinois Supreme Court cited

Alvarado v. Hickman, 316 F. 3d 841 gt" Cir. 2002) — but

only as an example of how age, intelligence and mental

makeup have been incorporated into the reasonable man

standard. 1t then concluded that Winois courts have alncadry

modified the reasonable person standard, where juveniles

were involved, citing In re J.W., 274 Ill. App. 3d 951 (1995);

People v. Armstrong, 318 Ill. App. 3d 607 (2000); and

People v. Patel, 313 Ill. App. 3d 601 (2000). In both J.W..,

and Armstrong (cases involving juveniles), Illinois courts

relied on the defendant's age and concluded that they were in

“custody” for purposes of Miranda. Miranda v. Arizona,

384 U.S. 436, 16 L.Ed. 2d 694, 86 S.Ct. 1602 (1966). The

Illinois court then logically extended the same rationale to the

characteristic of mental capacity as well. People v. Braggs,

209 Ill.2d at 510.

Thus, it is clear that the Illinois Supreme Court only

cited Alvarado v. Hickman, 316 F. 3d. 841 cg" Cir. 2002), as

a guide, as its decision was actually grounded upon adequate

and independent Illinois law. Therefore, jurisdiction by this

Court should not be invoked. Accordingly the petition

should be denied.

al ee.

II.

THE ILLINOIS SUPREME COURT’S DECISION

SHOULD BE AFFIRMED WHERE IT IS GROUNDED

ON ILLINOIS LAW THAT IS NOT IN CONFLICT

WITH DECISIONS OF THIS COURT.

If this Court decides to invoke jurisdiction under 28

USC §1257 (a), the Illinois Supreme Court's decision in

People v Braggs, 209 Ill. 2d 492 (2004), should be affirmed

as it is not antagonistic with decisions of this Court.

Petitioner argues that the Illinois decision conflicts with

Yarborough v. Alvarado, 541 U.S. _, 1248S. Ct. 2140

(2004), which overruled Alvarado y. Hickman, 316 F. 3d 841

(9 Cir. 2002), a case cited by the Illinois Court. However,

the Court's rejection of Alvarado is not fatal to the instant

case, as the two cases are clearly distinguishable.

The Ninth Circuit case involved the Court of Appeals

reversing the District Court’s denial of a Writ of Habeas

Corpus. Thus, pursuant to the standard of review set out in

the Antiterrorism and Effective Death Penalty Act of 1996,

the Court was limited to determining only the

unreasonableness of the state court's application of clearly

established state law. The Court then concluded that the

Arizona state court’s adjudication — which held that Alvarado

was not in custody (pursuant to the objective reasonable man

standard) for purposes of Miranda — was not an unreasonable

application of clearly established law. However, in the case

at bar, the Court has no such limitation — as the instant case is

derived from a direct appeal.

Moreover, the Braggs decision is properly rooted in

Illinois and federal law. In Stansbury v. California, 511 U.S.

318, 128 L. Ed 2d 293, 1145 S. Ct. 1526 (1994), this Court

held that the test for determining “custody” for purposes of

Miranda, is “whether a reasonable man in the suspect's

position would have believed that he was in custody”... 128

L. Ed. 2d at 299 — or as so aptly stated by the Illinois

Supreme Court, “a reasonable man in the suspect's shoes.”

See People v. Lucas, 132 Ill. 2d 417 (1989). The Illinois

Court then determined that age, intelligence, and mental

makeup of the accused (along with the officer’s awareness

and exploitation of these characteristics) should be

analytically intertwined with the reasonable person prong of

the custodial question. People v Braggs,, 209 Ill. 2d at 482.

The Braggs court then alluded to a litany of Illinois

authority which not only adopted the two-pronged analysis

used in the federal courts, but actually modified the

reasonable person standard (where a juvenile is involved) to

reflect what a reasonable juvenile would have thought about

his custodial status — citing specifically People v. Armstrong,

318 Ill. App. 3d 607 (2000) and In re J.W., 274 Ill. App. 3d

951 (1995). In both cases, which involved juveniles (J.W.

was 14 and Armstrong 15), the Illinois Appellate Court

considered the factors as set out in both Illinois and federal

law for determining the custody issue. It then relied heavily

on the defendant's ages and concluded that both individuals

were “in custody” for purposes of Miranda.

Thus, the Illinois Supreme Court actually followed

the holding of Stansbury; it just provided clarity and logical

meaning to Stansbury’s requirement of determining what a

reasonable man would think in the suspect’s shoes. As stated

by the Court in Braggs :

If as in this case, we are concerned with what

a reasonable person “ in the defendant's

shoes” would have thought about his or her

freedom of _action, the reasonable person

we envision must at least wear comparable

footwear; otherwise we ought to simply

abandon the legal charade that the defendant's

characteristics, perspective, and perception

mattered at all. People v Braggs, 209 Ill.2d at

508.

Therefore, the Braggs court concluded that for a

peveniii suspect, the objective reasonable man standard

should reflect the thought of a reasonable juvenile. The court

then logically extended this principle to incorporate a

suspect’s mental capacity, as well — where mentally retarded

persons are more susceptible to coercion, more likely to

confess falsely, and less likely to understand their rights, than

people of normal intelligence. See P. Hourihane,

Earl Washington’s Confessions: Mental Retardation and the

Law of Confessions, 81 Va Rev. 1471, 1473 (1995).

In United States_v. Wauneka , 770 F. 2d 1434 ( 9"

Cir. 1985), a case cited by the Braggs court and factually

similarly to the instant case (expect that the defendant

possessed normal intelligence), the Ninth Circuit found that

Wauneka was “in custody” for purposes of Miranda. By the

same token, Mary Braggs, who possessed the IQ equivalent

to a5 year-old, and cannot understand Miranda warnings

(R.B. 35-42) — clearly is more limited than Wauneka. Thus,

the Braggs court’s conclusion that under the circumstances, a

reasonable person with Braggs’ mental Capacity would not

have felt free to leave is entirely proper under Illinois law and

should be affirmed by this Court. To hold otherwise would

be an egregious misapplication of the law and common sense

— especially in a case such as this, where the mental

retardation of respondent Braggs is so severe and obvious.

In her concurring opinion in Yarborough v. Alvarado,

Justice O'Connor stated that she agreed with the majority

only because Alvarado was almost 18 -years-old, which

made it difficult for officers to ascertain his juvenile status.

Clearly such rational would militate in favor of Braggs in the

instant case where her mental retardation is obvious and

severe. Yarborough v Alvarado, 124 S. Ct. at 2152.

Likewise, Justice Breyer’s dissent suggests that a

suspect’s age should be incorporated into the reasonable man

standard. As stated by Justice Breyer, “the reasonable person

standard does not require a court to pretend that Alvarado

was a 35 year-old.” 124 S.Ct. at 2155. Clearly, the only

logical way to analyze the reasonable man standard is to

incorporate pertinent characteristics (age, and mental

capacity) of the accused — as the Braggs Court did when it

considered Mary Bragg’s mental retardation in determining

that she was in custody for purposes of Miranda.

Petitioner also contends that certiorari is necessary

due to a split in various state courts. However, since granting

certiorari is discretionary, such action is unwarranted here,

where the Braggs decision is firmly rooted in Ilinois law.

Likewise, Petitioner’s last allegation — that such assessment

by police is unworkable — is also misplaced because in the

instant case, the mental retardation of Mary Braggs (as stated

earlier) besides being both obvious and severe, was known to

the police detectives.

CONCLUSION

Based on the foregoing reasons, the petition for a writ

of certiorari should be denied. In the alternative if certiorari

is granted, People v. Braggs should be affirmed.

Respectfully submitted,