People v. Kadow

2021 IL App (4th) 190103FILED
January 26, 2021
Carla Bender
NO. 4-19-0103 4th District Appellate
Court, IL
IN THE APPELLATE COURT
OF ILLINOIS
FOURTH DISTRICT
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
Plaintiff-Appellee, ) Circuit Court of
v. ) Adams County
JOHNNIE W. KADOW, ) No. 17CF644
Defendant-Appellant. )
) Honorable
) Robert K. Adrian,
) Judge Presiding.
JUSTICE DeARMOND delivered the judgment of the court, with opinion.
Presiding Justice Knecht concurred in the judgment and opinion.
Justice Turner dissented, with opinion.
OPINION
¶1 In August 2017, the State charged defendant, Johnnie W. Kadow, with five counts
of predatory criminal sexual assault of a child, Class X felonies. 720 ILCS 5/11-1.40(a)(1), (b)(1)
(West 2016). In October 2018, defendant moved to suppress statements he made during a recorded
interview, claiming he did not knowingly and voluntarily waive his Miranda rights (see Miranda
v. Arizona, 384 U.S. 436 (1966)). Following a November 2018 evidentiary hearing, the trial court
took the matter under advisement and invited the parties to submit memoranda of law in support
of their positions. In December 2018, the trial court denied defendant’s motion to suppress, finding
defendant reinitiated contact with the officer after invoking his right to counsel and then knowingly
and voluntarily waived his Miranda rights. As a result, the court concluded the State could
introduce defendant’s statements into evidence as corroboration of the minor victims’ hearsay
statements, which the court previously found admissible under section 115-10 of the Code of
Criminal Procedure of 1963 (Code) (725 ILCS 5/115-10 (West 2016)). In February 2019, the court
held a hearing on defendant’s posttrial motion, which alleged the trial court’s denial of his motion
to suppress was error. In denying defendant’s posttrial motion, the trial court again noted defendant
asserted his rights, but then made a knowing and voluntary waiver of his Miranda rights.
¶2 On appeal, under the umbrella of a claim of ineffective assistance of counsel,
defendant argues (1) defendant’s intellectual disability rendered his statement involuntary, (2) the
police undermined defendant’s Miranda warnings by failing to respect defendant’s invocation of
counsel, (3) defendant’s will was overcome by the officer’s threats of jail and offers to help
defendant were conditioned on defendant’s confession, and (4) based on the aforementioned
errors, defendant’s statement was involuntary and unreliable. Defendant claims trial counsel was
ineffective for failing to seek to suppress defendant’s statements on the grounds that the statements
were involuntary. The State argues trial counsel was not ineffective because the evidence showed
defendant gave a voluntary statement and, after invoking his right to counsel, he initiated contact
with the police officer. The State claims after defendant initiated contact with the officer, he then
voluntarily waived his Miranda rights. Because we agree with defendant that the police
undermined defendant’s Miranda warnings by initiating contact after defendant’s invocation of
counsel, and because he was incapable of understanding, much less voluntarily waiving, his
Miranda rights, we reverse and remand.
¶3 I. BACKGROUND
¶4 In August 2017, the State charged defendant by information with five counts of
predatory criminal sexual assault of a child, Class X felonies. 720 ILCS 5/11-1.40(a)(1), (b)(1)
(West 2016).
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¶5 In October 2017, the State filed a motion in limine requesting to admit hearsay
statements made by the two minor victims, pursuant to section 115-10 of the Code (725 ILCS
5/115-10 (West 2016)). That same month, defense counsel filed a “Suggestion of Fitness and
Motion for Examination,” questioning whether defendant was fit to stand trial because defendant
“cannot read or write and seems unable to understand the legal process and possible
consequences.”
¶6 In November 2017, Dr. Frank Froman, a clinical psychologist, submitted a fitness
report indicating defendant reads at a kindergarten level, his perceptual motor abilities are akin to
a five-year-old child, he functions at a third-grade level, and he could not comprehend his legal
rights—neither what they are, nor what they mean. Dr. Froman concluded defendant’s “condition
is fixed, and unlikely to change his [sic] result of any form or therapy, medication, or the like. His
condition is essentially immutable.” Dr. Froman found defendant incapable of “understanding the
charges against him, and cooperating with his attorney in formulating his defense.” After finding
defendant unfit to stand trial, the court ordered he be placed in the custody of the Illinois
Department of Human Services (DHS) for evaluation to determine his fitness status and whether
he can be made fit within one year.
¶7 In May 2018, DHS filed a “Progress Report,” pursuant to section 104-18(a)(3) (725
ILCS 5/104-18(a)(3) (West 2016)), which stated defendant did not have the capacity to meet the
standard of legal fitness because,
“[h]is thought process consists primarily of simplistic concrete
concepts (as opposed to abstract ideas), and his learning process
consists primarily of rote memorization acquired through repetition
over time. Consequently, his ability to adequately understand the
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legal proceedings against him is severely compromised, and he does
not have the skills necessary to effectively participate in his own
defense.”
The report concluded defendant was unlikely to ever attain legal fitness. The findings of this report
were consistent with each of the progress reports filed with the court. Based on this, defense
counsel filed a motion for a discharge hearing pursuant to section 104-25 (725 ILCS 5/104-25
(West 2016)) of the Code. See 725 ILCS 5/104-23 (West 2016) (authorizing a discharge hearing
where an unfit defendant cannot become fit to stand trial because there is a substantial probability
that he will not attain fitness within the allotted time period).
¶8 In October 2018, the trial court held a hearing pursuant to section 115-10(b) of the
Code (725 ILCS 5/115-10(b) (West 2016)) to determine the admissibility of the minor victims’
hearsay statements. The minors’ mother and grandmother testified about the statements the minors
made to them regarding the allegations. The State also presented evidence from the director of
forensic interviewing of the Children’s Advocacy Center about her recorded interview with both
minors, from a social worker who counseled both minors, and from Detective Hufford’s interview
of defendant. The court found the statements the minors made to their mother and grandmother
were reliable, but if the children were found to be unavailable to testify, then the State was required
to present corroborating evidence in order for the court to admit them. The corroborating evidence
would be defendant’s recorded interview and eventual admission of guilt. On the same day as the
hearing, defense counsel filed a motion to suppress the statements defendant made to Detective
Hufford, claiming that, due to his learning disability, he was unable to understand and comprehend
his Miranda rights and was therefore unable to make a knowing and voluntary waiver of those
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rights. The court reserved ruling on whether the minors would be declared unavailable until it ruled
on defendant’s motion to suppress.
¶9 In November 2018, the trial court heard defendant’s motion to suppress. The
evidence consisted of the recorded interview of defendant and prior reports authored by mental
health professionals concerning defendant’s fitness. During the interview, Detective Hufford read
defendant’s Miranda rights, and defendant confirmed he understood them. Hufford reviewed the
admonition form with defendant; however, after admitting he could not write, defendant said he
did not understand the meaning of his rights, and Hufford attempted to explain them to him in
simpler terms. Detective Hufford had to explain the practical application of defendant’s Miranda
rights before defendant signed the admonition form. After denying the allegations, the following
dialogue took place:
“DEFENDANT: Can I talk to a lawyer?
DETECTIVE HUFFORD: Huh?
DEFENDANT: Can I talk to a lawyer?
DETECTIVE HUFFORD: You want a lawyer? I am going to call to see if
the State’s Attorney’s Office wants you to be lodged in jail right now, okay? If you
don’t want to talk to me.
DEFENDANT: I’ll talk to you.
DETECTIVE HUFFORD: No.
DEFENDANT: I’ll talk to you.
DETECTIVE HUFFORD: I don’t think you’re being honest with me
already.
DEFENDANT: Yeah, I was out of town. I want to talk to you.
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DETECTIVE HUFFORD: (while exiting the room) Remain seated.
DEFENDANT: I’ll talk to you, please.”
Detective Hufford responded, “You just said you wanted a lawyer that means I have to stop. Unless
you really want to talk to me.” Defendant then reiterated he wanted to speak with him and
confirmed he did not want an attorney. Hufford, in the presence of another detective, read
defendant his Miranda rights again, where defendant (again) exhibited difficulty in understanding
them. After approximately 40 minutes of denying the allegations and listening to Hufford’s
repeated demands for honesty, offers of help, and threats of jail, defendant eventually admitted to
sexually abusing the two minors. At the conclusion of the hearing, the court took the matter under
advisement.
¶ 10 In December 2018, the court found defendant’s statements to the police were made
knowingly and voluntarily, and defendant understood his Miranda rights because he invoked his
right to an attorney after being questioned by Detective Hufford. The court reasoned defendant
reinitiated the interrogation by saying he wanted to talk after Hufford said he would have to contact
the state’s attorney’s office about putting defendant in jail. Hufford Mirandized him again, and
“although [defendant] was unable to basically tell the officers what [his rights] were in full, he
stated he understood those.” The trial court acknowledged that “while [defendant] does have
limitations, he is able to function. He knew what his rights were. He invoked his rights. And then
once he invoked his rights, then he again waived his rights.”
¶ 11 Later that month, the trial court held a discharge hearing where the court heard
testimony from the minors’ mother and grandmother and reviewed defendant’s recorded interview.
At the conclusion of evidence, the court found the State presented sufficient evidence to find
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defendant “not not guilty” on all counts and remanded defendant to DHS for up to an additional
two years.
¶ 12 This appeal followed.
¶ 13 II. ANALYSIS
¶ 14 A. Plain Error
¶ 15 Although initially argued under the umbrella of ineffective assistance of counsel,
defendant’s reply brief contends we should consider defendant’s Miranda violation under the plain
error doctrine. In People v. White, 2011 IL 109689, ¶ 133, 956 N.E.2d 379, our supreme court
noted, “Plain-error review under the closely-balanced-evidence prong of plain error is similar to
an analysis for ineffective assistance of counsel based on evidentiary error insofar as a defendant
in either case must show he was prejudiced ***.” Because we believe this Miranda violation
prejudiced defendant and the evidence was closely balanced, we accept defendant’s invitation to
analyze this issue as plain error.
¶ 16 We first note plain error was not argued in defendant’s opening brief and, as a
result, the State has not had the opportunity to argue forfeiture. Although the better practice would
have been to raise the plain error arguments in his opening brief, our supreme court has told us we
may still conduct a plain error analysis even if it was raised for the first time in an appellant’s reply
brief. See People v. Ramsey, 239 Ill. 2d 342, 412, 942 N.E.2d 1168, 1206 (2010) (When defendant
fails to argue plain error in his opening brief, a court of review may still review the issue for plain
error if argued in his reply brief.).
¶ 17 While defendant argued to the trial court his statement was not made voluntarily
due to his intellectual disability, trial counsel never argued defendant’s statement should be
suppressed because Detective Hufford violated Miranda by failing to honor defendant’s request
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for counsel. Since defendant did not raise this issue with the trial court, we would normally find
he forfeited appellate review of this issue. See People v. Piatkowski, 225 Ill. 2d 551, 564, 870
N.E.2d 403, 409 (2007). However, Illinois Supreme Court Rule 615(a) (eff. Jan. 1, 1967) provides
that “[p]lain errors or defects affecting substantial rights may be noticed although they were not
brought to the attention of the trial court.”
¶ 18 “[T]he plain-error doctrine allows a reviewing court to consider unpreserved error
when (1) a clear or obvious error occurred and the evidence is so closely balanced
that the error alone threatened to tip the scales of justice against the defendant,
regardless of the seriousness of the error, or (2) a clear or obvious error occurred
and that error is so serious that it affected the fairness of the defendant’s trial and
challenged the integrity of the judicial process, regardless of the closeness of the
evidence.” Piatkowski, 225 Ill. 2d at 565.
First-prong plain error is established by demonstrating “prejudicial error,” i.e., because the
evidence was so closely balanced, “the error alone severely threatened to tip the scales of justice.”
People v. Sebby, 2017 IL 119445, ¶ 51, 89 N.E.3d 675. Prejudice is not presumed; a defendant
must meet his burden to show the error was actually prejudicial. People v. Herron, 215 Ill. 2d 167,
187, 830 N.E.2d 467, 479-80 (2005). By contrast, under the second prong, prejudice is presumed
because of the importance of the right involved, irrespective of the strength of the evidence. People
v. Fort, 2017 IL 118966, ¶ 18, 88 N.E.3d 718. However, if error did occur, we only need to
consider if one of the prongs of the plain error doctrine has been satisfied. People v. Sykes, 2012
IL App (4th) 111110, ¶ 31, 972 N.E.2d 1272. The first step in any plain error analysis is
determining “whether there was a clear or obvious error at trial.” Sebby, 2017 IL 119445, ¶ 49.
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Accordingly, we must first determine whether the trial court erred by admitting defendant’s
recorded statement after defendant’s request for counsel.
¶ 19 B. Violating Miranda Renders Defendant’s Statements Involuntary
¶ 20 On appeal, defendant argues (1) defendant’s intellectual disability rendered his
statement involuntary, (2) the police undermined defendant’s Miranda warnings by failing to
respect defendant’s invocation of counsel, (3) defendant’s will was overcome by the officer’s
threats of jail and offers to help defendant were conditioned on defendant’s confession, and
(4) based on the aforementioned errors, defendant’s statement was involuntary, unreliable, and
inadmissible. We agree defendant’s statement was inadmissible on two grounds: (1) Hufford
undermined his Miranda rights by initiating contact after defendant asked for counsel and
(2) defendant’s intellectual disability rendered him incapable of voluntarily waiving his Miranda
rights. The two are somewhat intertwined, since defendant’s intellectual disability is a significant
factor among those considered when determining the effect of a Miranda violation in this case.
¶ 21 “The purpose of [Miranda warnings] is to ensure that the accused is aware of his
substantive constitutional right not to incriminate himself and to provide him with the opportunity
to exercise that right.” People v. Winsett, 153 Ill. 2d 335, 348, 606 N.E.2d 1186, 1194 (1992). The
importance of safeguarding this substantial right is paramount, and a violation of it impairs the
integrity of the judicial process. Herron, 215 Ill. 2d at 177-78. In Miranda, the United States
Supreme Court held when an accused invokes his right to counsel, “the interrogation must cease
until an attorney is present.” (Emphasis added.) Miranda, 384 U.S. at 474. The United States
Supreme Court further held that when a suspect expresses a desire to deal with the police only
through counsel, he “is not subject to further interrogation by the authorities until counsel has been
made available to him, unless the accused himself initiates further communication, exchanges, or
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conversations with the police.” Edwards v. Arizona, 451 U.S. 477, 484-85 (1981). The Illinois
Supreme Court interpreted the Edwards holding to mean that “[i]f the police subsequently initiate
a conversation with the accused in the absence of counsel, the accused’s statements are presumed
involuntary and are not admissible as substantive evidence at trial.” People v. Woolley, 178 Ill. 2d
175, 198, 687 N.E.2d 979, 990 (1997). As we noted in People v. Peck, 2017 IL App (4th) 160410,
¶ 33, 79 N.E.3d 232, once defendant invokes his right to counsel, we look to the “words or actions”
of the police “that [they] should know are reasonably likely to elicit an incriminating response
from the suspect.” (Emphases and internal quotation marks omitted.) This focus, the court said in
Hunt, is because “ ‘Miranda safeguards were designed to vest a suspect in custody with an added
measure of protection against coercive police practices, without regard to objective proof of the
underlying intent of the police.’ ” People v. Hunt, 2012 IL 111089, ¶ 30 (quoting Rhode Island v.
Innis, 446 U.S. 291, 300-01 (1980)). “The court’s preliminary inquiry is whether the defendant,
rather than the police, initiated the conversation in a manner evincing a ‘willingness and a desire
for a generalized discussion about the investigation.’ ” People v. Olivera, 164 Ill. 2d 382, 390, 647
N.E.2d 926, 930 (1995) (quoting Oregon v. Bradshaw, 462 U.S. 1039, 1045-46 (1983)).
¶ 22 When a defendant moves to suppress evidence claiming a violation of Miranda
rights, there is a two-part analysis. People v. Luedemann, 222 Ill. 2d 530, 542, 857 N.E.2d 187,
195 (2006). We first examine whether the trial court’s factual findings are against the manifest
weight of the evidence. Luedemann, 222 Ill. 2d at 542. However, a court of review is permitted to
undertake its own assessment of the facts and draw its own conclusions when deciding what relief,
if any, should be granted. People v. Pitman, 211 Ill. 2d 502, 512, 813 N.E.2d 93, 101 (2004). Next,
we review de novo the trial court’s ruling regarding the motion to suppress. People v. Harris, 228
Ill. 2d 222, 230, 886 N.E.2d 947, 954 (2008). Where, as here, we are asked to determine whether
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a suspect has initiated further communication in the absence of counsel, an additional two-part
inquiry is necessary: (1) whether the accused, after invoking his right to counsel, initiated further
conversation evincing a willingness and desire for a generalized discussion about the investigation
and (2) whether the accused has subsequently knowingly and intelligently waived his right to
counsel and his right to remain silent. Bradshaw, 462 U.S. at 1045-46; Woolley, 178 Ill. 2d at 198-
99.
¶ 23 It is undisputed defendant is intellectually disabled. Dr. Froman found him to have
a functional intelligence quotient (IQ) of 56, which placed him in the “mid-mild range of
intellectual dysfunction.” He was unable to read beyond a kindergarten level and had the
perceptual motor skills of a five-year-old child. Dr. Froman concluded he could answer “extremely
simple questions, of the kind that you would typically give to an eight-year-old child.” His overall
functioning was at a third-grade level. Dr. Froman described him as “a somewhat sheepish, very
minimal, and intellectually pauce [(deficient)] individual whose ability to understand,
comprehend, and make sense of his world is quite low.” Dr. Froman also found defendant’s
condition to be “immutable,” meaning it was not likely to change over time. This was borne out
by the several progress reports noting his condition did not change and he seemed no more able to
comprehend his rights or the process. After he was found unfit to stand trial and sent to DHS, he
underwent further psychological testing and assessment of his adaptive functioning. DHS found
him to have an even lower IQ of 50, but because severity classifications are based on adaptive
functioning, his level of adaptive functioning (the age equivalent of nine years, eight months)
placed him in the range for a mild intellectual disability diagnosis. According to the DHS
evaluation, 99.9% of people his age would score higher than he did intellectually. DHS highlighted
the fact that “[t]his is an extremely low level of intellectual functioning” and concluded that the
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defendant was unlikely to ever attain legal fitness. The latest 90-day progress report in the court
file, dated February 25, 2019—a year after his admission—revealed that although defendant was
actively engaged in the Legal Fitness Restoration Program and “wants to participate
appropriately,” “[d]ue to the severity of [his] cognitive impairment,” “[defendant] simply does not
have the cognitive capacity to learn the material covered in the class.” As the authoring
psychologist, Dr. Holt, put it, “[e]ffective communication with [defendant] requires interaction as
though working with a very young child.” She indicated defendant was unlikely to “ever attain
more than a very superficial understanding of the judicial process.” He never passed the class he
was taking to attempt to attain fitness, and Dr. Holt ultimately concluded he was “unlikely to ever
attain Legal Fitness.”
¶ 24 Although the investigating officer did not have access to the various mental health
reports later available to the trial court, defendant’s disability was evident to Detective Hufford,
the interviewing officer, and is obvious from viewing the video-recorded interview. Defendant
told Hufford he could not read and struggled to understand the application of his Miranda rights.
Initially, defendant simply responded affirmatively after each right was read to him. Once he told
Hufford he could not read and the officer began going over each right again, defendant told him
he did not understand. Hufford then began attempting to explain each right in simpler terms.
Defendant has a speech impediment (one report indicated “public defender” was pronounced
“pubber fender”), which is obvious on the video, and his physical features and mannerisms further
highlight his cognitive deficits. Dr. Froman noted he could write his name only with difficulty and
that is apparent from the video. These things had to be obvious to the detective because they are
painfully obvious to even a casual observer of the video. During the interrogation, although
defendant eventually said he understood his Miranda rights, he was unable to explain what they
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are and how they apply to him. This is consistent with the reports of the mental health experts at
Choate and the initial fitness evaluation, all of which concluded defendant did not have the capacity
to understand his rights or the legal concepts involved. While it is true the detective was never
questioned about his perception of defendant’s ability to understand the Miranda warnings, it
should be noted he only testified at the section 115-10 hearing, where the defendant’s
understanding would not have been relevant, and the discharge hearing, which occurred after
defendant had already lost his motion to suppress on that issue.
¶ 25 Shortly after the officer began questioning defendant about the allegations and
claimed defendant was not being honest, defendant stated, “Can I talk to a lawyer?” Detective
Hufford responded, “Huh?” and defendant repeated his request, “Can I talk to a lawyer?” At this
moment, defendant twice unambiguously requested counsel, and any further questioning by the
officer at this point should have ceased. Miranda, 384 U.S. at 474 (stating when an accused invokes
this right to counsel, “the interrogation must cease until an attorney is present”). In response to
defendant’s request for counsel, the detective responded, “You want a lawyer?” After a brief pause,
he tells defendant, “I am going to call to see if the State’s Attorney’s Office wants you lodged in
jail right now, okay? If you don’t want to talk to me.” It is important to note that after defendant
requested counsel, he did not initiate contact with the detective nor demonstrate a willingness to
speak with him about the allegations. It was the detective who initiated the contact and did so with
a statement implying jail was a consequence of defendant’s decision to ask for an attorney, unless
defendant talked to him. This is violative of Miranda and Edwards in that the clear import of
Hufford’s comment, especially to someone of defendant’s limited intellectual abilities, was that
the only way he could avoid the possibility of being “lodged in jail” was to give up his right to
counsel and talk to the officer.
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¶ 26 As we note below when addressing the issue of the voluntariness of defendant’s
statement in general,
“ ‘it is generally recognized that the [intellectually disabled] are considered more
susceptible to police coercion or pressure than people of normal intellectual ability,
they are predisposed to answer questions so as to please the questioner rather than
to answer accurately, 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.’ ”
People v. Brown, 2012 IL App (1st) 091940, ¶ 38, 967 N.E.2d 1004 (quoting
People v. Braggs, 209 Ill. 2d 492, 514, 810 N.E.2d 472, 486 (2003)).
If defendant is incapable of understanding his rights in the first place, as all evidence indicated,
how can he possibly knowingly waive them once confronted with the option of talking or jail? “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 consequences of the decision to abandon it.” In re W.C., 167 Ill. 2d 307, 327-28,
657 N.E.2d 908, 919 (1995). In W.C., our supreme court pointed out that, although evidence of a
mental deficiency may not ipso facto render a Miranda waiver invalid, “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.” W.C., 167 Ill. 2d at 328.
¶ 27 The State claims the interaction here between defendant and Hufford is analogous
to that in People v. Enoch, 122 Ill. 2d 176, 192-93, 522 N.E.2d 1124, 1132-33 (1988), claiming
the officer’s statement after defendant invoked his right to counsel was merely an explanation of
what normal police procedure would take place next and not designed to elicit anything. However,
putting aside that Enoch does not involve a defendant with this defendant’s cognitive deficiencies,
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this was not an explanation of what was about to happen procedurally as in Enoch, i.e., informing
defendant he was going to be arrested on the charges of aggravated sexual abuse of a child and
booked into jail. This was a not-so-thinly veiled threat made to an intellectually disabled
individual, indicating that unless defendant cooperated and talked to the investigating officer, he
may have to “be lodged in jail.” Hufford expressly connected defendant’s refusal to talk and
request for a lawyer with further incarceration. Unlike in Enoch, Hufford did not simply explain
the procedure; he conditioned the defendant’s incarceration on his not talking to him. The only
conceivable purpose for the detective’s statement was to threaten the prospect of incarceration in
the hope defendant would retract his request for counsel and possibly provide an incriminating
statement. The fact that defendant is then seen on the video pleading with Hufford to talk is all the
more evidence of the manipulative effect of his words on a suspect with such severe developmental
disabilities. We recognize police are provided latitude in the questioning of a suspect. See People
v. House, 141 Ill. 2d 323, 375, 566 N.E.2d 259, 282 (1990). However, once a suspect
unambiguously invokes his right to counsel, the police are not entitled to make statements designed
to pressure defendant to retract his request for counsel—they are required to cease the interrogation
until defendant’s attorney is present. Edwards, 451 U.S. at 484-85; see also Winsett, 153 Ill. 2d at
350 (“Any waiver of the right to counsel given in a discussion initiated by the police is presumed
invalid ***.”).
¶ 28 The defendant’s comment, “I’ll talk to you,” after being advised Hufford is going
to talk to the state’s attorney about jailing him “[i]f you don’t want to talk to me,” was not “a
statement that evinces a ‘willingness and a desire for a generalized discussion about the
investigation,’ ” especially coming from someone with defendant’s cognitive deficits. Woolley,
178 Ill. 2d at 198 (quoting Bradshaw, 462 U.S. at 1045-46). All the reports noted defendant’s lack
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of any sort of abstract thought process and that his thinking was in the most concrete of terms. His
statement was in direct response to Hufford’s last comment about what was going to happen “[i]f
you don’t want to talk to me.” Here, Detective Hufford was obligated to stop talking to defendant
after defendant requested (twice) to speak with a lawyer. Accordingly, we find it was error for the
trial court to deny defendant’s motion to suppress because defendant’s statement was involuntary.
After a clear and unequivocal exercise of his right to counsel, he was not subject to further
interrogation by the police until counsel was made available to him. Edwards, 451 U.S. at 484-85.
¶ 29 Thus, the trial court’s factual finding that defendant’s statements were knowingly
and voluntarily waived is against the manifest weight of the evidence. Luedemann, 222 Ill. 2d at
542. Because the detective reinitiated the contact after defendant invoked his right to counsel,
defendant’s statements are involuntary and inadmissible. Woolley, 178 Ill. 2d at 198.
¶ 30 C. Defendant Did Not Voluntarily Waive Miranda
¶ 31 Defendant contends any waiver of Miranda rights by him could not have been
voluntary because he was not able to understand them. “ ‘The concept of voluntariness includes
proof that the defendant made a knowing and intelligent waiver of his privilege against
self-incrimination ***.’ ” People v. Wilson, 2020 IL App (1st) 162430, ¶ 43 (quoting Braggs, 209
Ill. 2d at 505). Our supreme court has also upheld the longstanding principle that whether a
defendant made a knowing and intelligent waiver of his rights is determined by the particular facts
and circumstances of each case, which includes the “ ‘background, experience, and conduct of the
accused.’ ” Braggs, 209 Ill. 2d at 515 (quoting Johnson v. Zerbst, 304 U.S. 458, 464 (1938)).
Limited intellectual capacity is one of several factors to be considered to determine if a defendant
was incapable of waiving Miranda rights. People v. Foster, 168 Ill. 2d 465, 476, 660 N.E.2d 951,
956 (1995). As we noted above, when the defendant has limited mental capacity, particular
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attention must be given to this fact. Although an intellectual deficit does not, by itself, render a
Miranda waiver invalid, our supreme court in Braggs discussed the special care necessary with
individuals with developmental disabilities:
“[I]t is generally recognized that the [intellectually disabled] are
considered more susceptible to police coercion or pressure than
people of normal intellectual ability, they are predisposed to answer
questions so as to please the questioner rather than to answer
accurately, 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.” Braggs, 209 Ill. 2d at 514.
While the facts of Braggs may be dissimilar, the principles of law and observations about the
unique issues involved when relating to persons with intellectual disabilities remain the same.
Nothing about the language of the Supreme Court’s analysis in Braggs would imply its holdings
were limited to the facts of the case.
¶ 32 Unlike many cases where we must glean from the circumstances a defendant’s
ability to understand and waive voluntarily his or her Miranda rights, here we have experts
documenting his inability to do so. As part of the analysis above, we outlined the substantial record
of defendant’s cognitive deficits. According to the fitness reports, defendant is a 36-year-old man
who reads at a kindergarten level, has motor skills comparable to a five-year-old, and has an IQ of
56, later tested at 50, which places him in the range of having “mid-mild range of intellectual
dysfunction.” He functions at the lowest 1% of the population intellectually. His overall ability to
function is equivalent to a third-grader and, according to the examining psychologist, “his
understanding of himself, of the world, of interactions, and the law, [are] no greater than that of a
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typical eight-year-old child.” Dr. Froman indicated a discussion of defendant’s rights revealed,
“[w]hile he did not recall if he understood them, nor if they were read to him, it seemed clear after
going through them that he does not understand what they are, nor what they mean.” The report
indicates “he is extremely dependent upon his external environment (i.e., prompts/supervision
from others) to ensure the safety of self and others.”
¶ 33 During the interview, defendant appears scared and confused and responds mostly
with one-word answers. After defendant asks for a lawyer, and the detective informs him he is
going to contact the state’s attorney’s office to see if they want defendant to be “lodged in jail,”
defendant appears visibly scared, leans forward in his chair, and says he wants to talk. As Detective
Hufford is leaving the room, defendant responds, “I will talk to you, please.” In Braggs, our
supreme court noted the myriad issues that are involved in questioning people who are
intellectually disabled. Braggs, 209 Ill. 2d at 514. In Wilson, 2020 IL App (1st) 162430, ¶ 48, the
First District observed that our courts have normally described “mental retardation” (now
“intellectual disability”) as persons with an IQ of less than 70 (People v. Daniels, 391 Ill. App. 3d
750, 754, 908 N.E.2d 1104, 1107 (2009)) or 75 (People v. Jones, 2014 IL App (1st) 120927, ¶ 59,
8 N.E.3d 470; In re S.W.N., 2016 IL App (3d) 160080, ¶ 73, 58 N.E.3d 877). Here, we are dealing
with an individual with a functional IQ of 50, who “requires interaction as though working with a
very young child.” The obligation of the State to prove that a waiver was knowing and intelligent
was described by the Miranda court as a “heavy burden.” Miranda, 384 U.S. at 475. Courts are to
“indulge every reasonable presumption against waiver of fundamental constitutional rights.”
(Internal quotation marks omitted.) Zerbst, 304 U.S. at 464. Here, the trial court was asked to find
that defendant, after being threatened with jail, was fully aware of the nature of the rights he waived
and the ramifications of such decision. The fitness report and the status reports from Choate clearly
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reveal he never fully understood his rights and was equally unable to comprehend the ramifications
of a waiver.
¶ 34 Defendant’s background, experience, and conduct reveal he was unable to
voluntarily waive his Miranda rights. See Braggs, 209 Ill. 2d at 515. Because the issue of
defendant’s involuntary waiver due to his intellectual disability was raised in the trial court, we
need not conduct a plain error analysis. Instead, we simply find defendant was incapable of
waiving his Miranda rights and it was error to deny defendant’s motion to suppress.
¶ 35 Having found it was clear and obvious error to deny defendant’s motion to suppress
based on Detective Hufford’s Miranda violation and that it was cognizable under first-prong plain
error, we must determine whether the error was prejudicial error, i.e., because the evidence was so
closely balanced, “the error alone severely threatened to tip the scales of justice.” Sebby, 2017 IL
119445, ¶ 51. Defendant’s statement to the police was the only corroboration supporting the
victims’ hearsay statements. During the section 115-10 hearing, the trial court, when discussing
the potential unavailability of the child-victims, noted defendant’s statement might constitute the
corroboration necessary. The only question in the court’s mind was whether defendant’s statement
would still be available for corroboration if it was found inadmissible at the suppression hearing.
Without defendant’s recorded statement, the victims’ hearsay statements were not admissible if
they proved unavailable, and the State would have had no other evidence to present. The court
eventually found both victims “unavailable” for the purposes of testifying at defendant’s discharge
hearing. Evaluating the totality of the evidence and conducting a qualitative, commonsense
assessment of it within the context of the case (People v. Belknap, 2014 IL 117094, ¶¶ 52-53, 23
N.E.3d 325), we can easily conclude admission of the statement was the sort of “prejudicial error”
to which Sebby referred. “[A] defendant who has shown clear error and closely balanced evidence
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has shown prejudice and is entitled to relief under the first prong of the plain error doctrine.” Sebby,
2017 IL 119445, ¶ 64 (citing Piatkowski, 225 Ill. 2d at 568). Accordingly, we find defendant was
unable to provide a voluntary and knowing waiver of his Miranda rights as a result of his
intellectual disability and the trial court erred in denying defendant’s motion to suppress. Further
we find it was first-prong plain error and a violation of defendant’s Miranda rights for Detective
Hufford to fail to honor defendant’s request for counsel. Therefore, we remand this matter to the
trial court for further proceedings consistent with this order. We decline to address the other issues
raised by defendant in light of our remand.
¶ 36 III. CONCLUSION
¶ 37 For the reasons stated, we reverse the trial court’s judgment and remand the cause
for a new discharge hearing consistent with this order.
¶ 38 Reversed and remanded.
¶ 39 JUSTICE TURNER, dissenting:
¶ 40 I respectfully dissent. Because I agree with the trial court’s decision to deny
defendant’s motion to suppress, I would affirm the trial court’s judgment denying defendant’s
motion for discharge.
¶ 41 Initially, I note the trial court first heard testimony from Detective Hufford at the
hearing held pursuant to section 115-10(b) of the Code (725 ILCS 5/115-10(b) (West 2016)). The
detective indicated he provided defendant with Miranda warnings before defendant made any
inculpatory statements. No one questioned the detective on whether defendant appeared to
understand the warnings. The detective testified he recorded the entire interview. According to the
detective, defendant’s inculpatory statements included his admissions he had (1) inserted his penis
and fingers into the female child’s vagina, (2) touched his penis on her mouth, (3) touched the
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male child’s penis, and (4) made the male child touch his penis.
¶ 42 Moving on to the suppression hearing, the parties stipulated to a foundation for the
admissibility of the DVD recording of the detective’s interview of defendant. The trial court then
watched the DVD in its entirety, took the matter under advisement, and allowed the State and
defendant to submit written arguments.
¶ 43 At a subsequent hearing, the trial court commented that it had considered the
evidence presented and the parties’ arguments. The court then found the detective explained to
defendant his Miranda rights, defendant understood his rights, and defendant knowingly and
voluntarily made statements to the police. According to the court, defendant’s understanding was
displayed when he asked for an attorney shortly after the detective’s questioning began. After
considering all the evidence before it, the court stated:
“[T]he Court finds that the defendant knowingly and voluntarily waived his rights,
and regardless of the mental functioning of the defendant, he demonstrated that he
understood what his rights were, and that is consistent with the reports that he is
able to function on a mild retardation basis, and that’s basically what he
demonstrated during the interview, that while he does have limitations, he is able
to function. He knew what his rights were. He invoked his rights. And then once he
invoked his rights, then he again waived his rights. It was explained to him again,
and he did a knowing waiver, and there is no reason to believe that once he invoked
his rights that he didn’t know then that he could invoke his rights again and ask for
an attorney, and he did not do that.”
¶ 44 The court then denied defendant’s motion to suppress. The court additionally found
the youngest of the two children defendant admitted he molested was unavailable to testify.
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¶ 45 At the outset of the discharge hearing, the trial court found the oldest child was also
unavailable to testify. The minors’ grandmother and mother then testified about the statements the
children made when they confided in them. The mother indicated the two children defendant
assaulted were her 10-year-old daughter and her 7-year-old son. In addition, Detective Hufford
testified about his interview of defendant and explained he had advised defendant at the outset of
the interview that it would be recorded. As before, the detective was not questioned on whether
defendant appeared to understand the Miranda warnings, although defendant did renew his motion
to suppress. Over defendant’s objection, the trial court then, for the second time, reviewed the
DVD in its entirety. The trial court denied defendant’s discharge motion and found defendant not
acquitted on all five counts.
¶ 46 While denying a posthearing motion filed by defendant, the trial court reiterated
many of the findings it made when denying defendant’s motion to suppress. The court also
distinguished the situation in this case from Braggs, which was heavily relied upon by defendant.
¶ 47 In Braggs, a detective advised the defendant of her Miranda rights from a standard
form without any further explanation. Braggs, 209 Ill. 2d at 499. The defendant gave no verbal
responses to the warnings, merely nodded her head affirmatively, and never signed a waiver form.
Braggs, 209 Ill. 2d at 499. Moreover, the detective acknowledged the defendant’s purported sister
and guardian initially was needed as an interpreter in order for the detective to communicate with
the defendant. Braggs, 209 Ill. 2d at 499. The court noted the purported sister was still acting as
an interpreter when the defendant made her inculpatory statements. Braggs, 209 Ill. 2d at 499-500.
¶ 48 Here, defendant did give verbal responses to the Miranda warnings and signed a
waiver of rights form. Additionally, the detective here explained defendant’s Miranda rights in
detail, and, unlike in Braggs, an interpreter was not required for the detective to communicate with
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defendant.
¶ 49 Also, in Braggs, a psychiatrist testified the defendant was moderately mentally
retarded, and a clinical psychologist testified the defendant was mentally retarded. Braggs, 209 Ill.
2d at 500-01. Both of the experts opined the defendant was unable and incapable of understanding
her Miranda warnings. Braggs, 209 Ill. 2d at 500-02.
¶ 50 In the case sub judice, Dr. Froman’s single report and Dr. Holt’s multiple progress
reports were introduced into evidence. All of the reports indicated the evaluations were prepared
to determine whether defendant was fit to stand trial. According to Dr. Holt’s reports, defendant’s
level of adaptive functioning decreased defendant’s intellectual disability from the moderate range
to the mild range. Neither psychologist testified at any time during the hearings held by the court.
¶ 51 Dr. Froman’s sole report indicates they “went over” defendant’s rights and
defendant did not understand them. However, it is unclear what rights the doctor was referencing
because the purpose of his examination was to determine whether defendant was fit to stand trial.
Moreover, the examination and the report were completed almost a year before defendant’s
counsel filed a motion to suppress evidence.
¶ 52 The standards for determining fitness to stand trial and whether a confession is
freely and voluntarily made are quite different. People v. Stephens, 2012 IL App (1st) 110296,
¶ 95, 980 N.E.2d 654 (citing People v. Rockamann, 79 Ill. App. 3d 575, 580-81, 399 N.E.2d 162,
166 (1979)). Additionally, and in any event, a trial court is not required to accept the opinion of a
psychiatrist or psychologist on whether a defendant understood Miranda warnings. People v.
Walker, 2012 IL App (1st) 083655, ¶ 44, 973 N.E.2d 939.
¶ 53 In my view, W.C., 167 Ill. 2d 307, more closely resembles our case than does
Braggs. In W.C., the 13-year-old minor was charged with delinquency based upon the offense of
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murder. W.C., 167 Ill. 2d at 311-12. The evidence showed the minor, accompanied by his mother,
was taken to an interview room in a police station where he gave a statement. W.C., 167 Ill. 2d at
313. According to officers, the minor answered each Miranda query by stating, “I understand.”
W.C., 167 Ill. 2d at 313.
¶ 54 After a pause during the interview, an assistant state’s attorney entered the
interview room and repeated Miranda warnings to the minor. The minor eventually signed a
written statement in which he made inculpatory admissions. W.C., 167 Ill. 2d at 314-15. The signed
statement included the minor’s acknowledgement he had been advised of and understood his
constitutional rights, including his right to a lawyer, and that the assistant state’s attorney was a
prosecutor and not his lawyer. W.C., 167 Ill. 2d at 314.
¶ 55 A hearing was later held to address whether the minor should be prosecuted as an
adult. W.C., 167 Ill. 2d at 315. Evidence at the hearing included a social report, which indicated
the minor was in the sixth grade but had received failing grades throughout his education. W.C.,
167 Ill. 2d at 315. Additionally, a school psychologist testified the minor was illiterate and
moderately mentally retarded. W.C., 167 Ill. 2d at 315. According to the psychologist, the minor
had an IQ of 48 and was developmentally equivalent to a six- to eight-year-old child. W.C., 167
Ill. 2d at 315. A court psychologist prepared a psychological examination summary, which also
described W.C. as being moderately, mentally retarded with the emotional maturity of a six- to
seven-year-old child. W.C., 167 Ill. 2d at 315-16. The trial court ultimately determined the minor
should not be transferred to the criminal division. W.C., 167 Ill. 2d at 316.
¶ 56 The minor’s counsel then filed a motion to suppress the minor’s incriminating
statements, alleging he did not knowingly and intelligently waive his right to remain silent and his
right to counsel. W.C., 167 Ill. 2d at 316. At the suppression hearing, the minor’s evidence from
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the transfer hearing was introduced by stipulation. Additionally, the school psychologist testified
it was her opinion the minor could not have understood his Miranda warnings at the time of his
arrest. W.C., 167 Ill. 2d at 316. The State presented the testimony of two police officers who had
previously read Miranda warnings to the minor on other occasions. They testified he had indicated
he understood the warnings, and, on one occasion, the respondent refrained from answering
questions. W.C., 167 Ill. 2d at 316. The assistant state’s attorney testified she gave the respondent
Miranda warnings and also explained the Miranda rights. W.C., 167 Ill. 2d at 316-17. Finally, the
minor “testified by responding in few words, by not remembering and with inconsistency.” W.C.,
167 Ill. 2d at 317. Ultimately, the circuit court denied the motion to suppress, and the respondent
was later adjudicated delinquent. W.C., 167 Ill. 2d at 317. The appellate court affirmed the minor’s
delinquency adjudication. W.C., 167 Ill. 2d at 312.
¶ 57 On appeal to the supreme court, the minor challenged the trial court’s denial of his
motion to suppress. W.C., 167 Ill. 2d at 327. The supreme court extensively cited the school
psychologist’s testimony, including her opinion the minor could not have understood the words
“ ‘remain,’ ‘against,’ ‘during,’ ‘formal,’ ‘hire[,]’ and would absolutely not have understood the
word ‘appointed.’ ” W.C., 167 Ill. 2d at 329-30.
¶ 58 The supreme court concluded the school psychologist’s testimony, a court
psychologist’s summary, and the social investigation report “left little doubt that W.C. did not
possess the ability to understand the words and terms contained in standard Miranda warnings.”
W.C., 167 Ill. 2d at 335. Nonetheless, the court found it was “not so clear from this evidence,
however, that W.C. would have been unable to understand [the assistant state’s attorney’s]
explanation of the Miranda warnings.” W.C., 167 Ill. 2d at 335. Citing the assistant state’s
attorney’s “concrete, nonabstract” terminology, the supreme court concluded W.C., even with his
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“quantifiable intellectual limitations,” may have been able to understand the assistant state’s
attorney’s explanation. W.C., 167 Ill. 2d at 335. The supreme court then stated:
“[A]s a court of review, we are not prepared to say that the trial court’s firsthand
assessment of W.C. was wanting. A trial court sits in a uniquely advantageous
position when evaluating a witness’[s] subjective mental capabilities. Accordingly,
we conclude that the circuit court’s determination that W.C.’s waiver was valid was
not against the manifest weight of the evidence.” W.C., 167 Ill. 2d at 335.
¶ 59 In the case before this court, I am not prepared to say the trial court’s assessment
of defendant was “wanting.” Defendant appeared before the trial court on several occasions even
though he did not testify. The court heard and observed the detective’s testimony and twice
reviewed the recording of defendant’s interview. The court observed defendant was read the
Miranda warnings on two occasions and the detective twice explained the defendant’s rights to
him in different terminology. The court also indicated the interview “was not coercive at all.”
¶ 60 Like the trial court, I have twice reviewed the video recorded interview of defendant
in its entirety. Further, I have several times watched the segment of the DVD which includes
defendant’s request for a lawyer, the exchanges between the detective and defendant after the
request, and the rereading of Miranda rights with a second detective present. Having done so, I
agree with the trial court’s assessment of the interview and would find the trial court’s conclusions
and findings defendant voluntarily and knowingly waived his Miranda rights are not against the
manifest weight of the evidence.
¶ 61 Defendant also argues a Miranda violation occurred when the detective did not
cease questioning after defendant asked if he could talk to a lawyer. Defendant maintains the
detective’s reference to the state’s attorney and jail amounted to a threat overcoming defendant’s
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will. According to defendant, this “threat” was intended to induce defendant to make an
incriminating statement. The threat thus constituted the initiation of further conversation with
defendant. In essence, defendant argues the detective’s statement was the equivalent of further
interrogation in violation of Miranda.
¶ 62 While this explicit argument was not made to the trial court, the court noted the
detective stopped the interrogation and told defendant he would speak with the state’s attorney to
determine if defendant should be held in the jail. The court pointed out defendant then said he
wanted to talk to the detective. According to the court, “The officer explained to [defendant] that
[defendant] asked for an attorney and so the interview had to stop.” However, the court found
defendant “insisted he wanted to speak with the officers.” The detective later returned with another
officer and again advised defendant of his rights. The court stated that “although [defendant] was
unable to tell the officers what [his rights] were in full, he stated he understood [his rights].” The
court noted the officers read defendant his rights, asked defendant about his rights, explained those
rights to defendant, and defendant provided appropriate answers to the officer’s questions. The
court also stated the interview was not very long and the detective did not really ask leading
questions.
¶ 63 I construe the trial court’s comments to mean it did consider whether defendant
initiated further conversation with the detective after defendant invoked his rights. The trial court
determined it was defendant who decided to proceed with the interview, as opposed to having the
detective discontinue the interview and contact the state’s attorney to determine if defendant
should be jailed. See Woolley, 178 Ill. 2d at 200 (finding the trial judge’s comments showed he
was aware that whether the defendant initiated further conversation was a necessary
determination). Regardless, well-settled case law does not support defendant’s position the
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detective’s statement constituted further interrogation. Our supreme court has stated:
“Under Miranda and its progeny, once an individual states that he wants an
attorney, all interrogation must cease until an attorney is present. [Citation.]
‘Interrogation’ is defined as ‘any words or actions on the part of the police (other
than those normally attendant to arrest and custody) that the police should know
are reasonably likely to elicit an incriminating response from the suspect.’ ”
(Emphasis added.) Enoch, 122 Ill. 2d at 193 (quoting Innis, 446 U.S. at 301).
¶ 64 This case presents a situation where the transcript of defendant’s interview might
suggest the detective’s actions and demeanor were imperious toward defendant after defendant
initially asked for a lawyer, especially considering defendant’s intellectual disability. However,
the trial court clearly determined that the video recording showed the detective did not bully,
coerce, or lie to defendant about what was going to happen. The court apparently determined the
detective would have ended the interview had defendant not stated he wanted to speak further with
the detective instead of speaking with a lawyer.
¶ 65 Moreover, even if the detective’s statement could conceivably be interpreted as
reasonably likely to elicit an incriminating statement, the detective’s statement he would be
contacting the state’s attorney about defendant’s incarceration constituted words “attendant to
arrest and custody.” See Enoch, 122 Ill. 2d at 193. Thus, defendant’s argument the detective’s
response to defendant’s request for a lawyer violated Miranda necessarily fails.
¶ 66 In conclusion, and in light of all the foregoing, I would affirm the trial court’s
judgment denying defendant’s motion for discharge. I would further affirm the trial court’s
judgment finding defendant not acquitted on all counts.
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No. 4-19-0103
Cite as: People v. Kadow, 2021 IL App (4th) 190103Decision Under Review: Appeal from the Circuit Court of Adams County, No.17-CF-644;
the Hon. Robert K. Adrian, Judge, presiding.
Attorneys James E. Chadd, Catherine K. Hart, and Joel C. Wessol, of State
for Appellate Defender’s Office, of Springfield, for appellant.
Appellant:
Attorneys Gary L. Farha, State’s Attorney, of Quincy (Patrick
for Delfino, David J. Robinson, and Lara L. Quivey, of State’s
Appellee: Attorneys Appellate Prosecutor’s Office, of counsel), for the
People.
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