APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, THIRD DIVISION
529 N.E.2d 590, 174 Ill. App. 3d 1009, 124 Ill. Dec. 609 1988.IL.1194
Appeal from the Circuit Court of Cook County; the Hon. Stephen A. Schiller, Judge, presiding.
PRESIDING JUSTICE WHITE delivered the opinion of the court. RIZZI, J., concurs. JUSTICE McNAMARA, Dissenting.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE WHITE
On July 26, 1984, defendant was in his family's apartment with his older sister Joanne, her boyfriend Robert Davis, and their friend Joseph Brooks. At that time defendant was 15 years old, 4 feet 8 inches tall, and he weighed 70 pounds. Brooks had a .22 caliber revolver and bullets. In defendant's presence, Davis and Brooks discussed robbery and decided to look for an old man to rob. Brooks gave Davis the gun and the three boys left the apartment. They saw Herbert Madison get out of a car and enter a nearby apartment building. The three boys went into that building and one of the boys knocked on the door to Michelle Matthews' apartment. Madison was standing at the doorway of the apartment across the hall, talking with the occupant of that apartment. Defendant asked Matthews whether their friend Nate was in her apartment. He was not.
Madison left the building and Brooks and Davis followed him while defendant continued to talk to Matthews. Defendant saw Brooks and Davis talking to Madison outside and he went to join them. Davis and defendant stood in front of Madison, each to one side, and Brooks stood behind Madison. Madison and Davis struggled briefly over Madison's wallet, then Davis shot Madison. Madison died a few hours later.
Defendant, Davis and Brooks ran back to defendant's apartment. Davis left to get change for Madison's $20 bill. Within an hour after the robbery, police found a wallet and several pieces of identification for Madison on the ground outside an apartment building. An officer also noticed a card on a window sill above the wallet. Police went to that apartment, where they found defendant, his sister, and the gun which had been used in the robbery. They placed defendant under arrest. This was defendant's first contact with the criminal Justice system. That afternoon, after talking with his mother, defendant discussed the incident with an assistant State's Attorney, Patricia DeOca, who reduced defendant's statement to writing. Defendant made a more extensive statement later that evening in the presence of his mother, a police officer, a court reporter, and DeOca.
Prior to trial defendant moved to suppress the statements on the grounds that he had not received Miranda warnings before he made his initial statements to police in the police car after his arrest and he had never understood his rights. At the hearing on the motion defendant testified that the officers who took him to the police station asked defendant about the crime, although they had not given defendant his Miranda warnings, and he answered their questions. After defendant arrived at the police station, a woman told him that he had the right to remain silent, and she asked if he understood what that meant. He testified that he said "Yes" although he did not understand, because he did not want to be embarrassed. She told him anything he said could be used against him in court, and asked him if he understood. Again he said "Yes" although he did not understand. He did not understand the other warnings she gave him because he did not know what "attorney," "appoint," "represent," and "right" meant. When defendant's mother arrived at the police station, she told defendant to tell the truth.
On cross-examination defendant admitted that he knew what "lawyer," "court," "used," "present," and "silent" meant. However, defendant maintained that he did not understand what the assistant State's Attorney meant when she told him that he had a right to remain silent. Defendant testified that he read the first two or three pages of each of the transcribed statements, but he did not finish reading either one. He initialed all of the pages and he signed at the end of each statement. Defendant testified that a police officer stepped on his foot and slapped him. Defense counsel then amended the motion to suppress statements, adding the allegation that the statements were the product of physical coercion. The trial court responded, "I'll recess at this point, so we are sure where the burden of proof lies."
Saul Levy, school psychologist for the Chicago Board of Education, testified that on March 15, 1984, he spent three hours testing defendant's intelligence because defendant was doing poorly and becoming disruptive in school. Defendant's full-scale IQ score was 78.
Dr. Joseph Hahn, administrator of the program bureau of child studies for the Chicago public schools, testified for the defense as an expert on the interpretation of psychological tests. Based on the results from Levy's testing of defendant, Hahn concluded that defendant was a slow learner. Although defendant graduated eighth grade when he was 15, his test results showed that his reading and cognitive abilities were around third-grade level. His reading comprehension score was equal to the average for children beginning third grade. In Hahn's opinion, a child at that reading level would not comprehend exactly what "You have the right to remain silent" means. The child would not understand the statements, "You have a right to have an attorney represent you," and "If you cannot afford an attorney, one would be appointed for you to represent you during this interrogation." The child would not fully grasp the concepts involved in the statement, "Anything you say here may be used against you in a court of law."
Several police officers testified that they saw defendant on July 26, 1984, and they did not slap defendant or hit him in any way, and they did not see any other police officers hit or slap defendant. Detective Catherine Reardon testified that she took custody of defendant after his arrest, and she drove defendant to the police station. She did not discuss the case with defendant and she did not hear any other officer discuss the case with defendant.
DeOca testified that defendant appeared to read each page of the statements, although he did not suggest any corrections. Defendant never mentioned that police had hit or stepped on him, and he never stated that he did not understand the rights which DeOca read to him.
Naomi Cartwright, school psychologist for the Chicago Board of Education, testified for the State that on December 18, 1984, she tested defendant, using three standard intelligence tests. On the Test of Nonverbal Intelligence, defendant received a score of 88 which reflects low average nonverbal intelligence. On a reading test in which Cartwright asked defendant to pronounce a set of words, defendant showed that he had the ability to pronounce written words at a fifth grade, second month, level. Cartwright also administered the Monroe-Sherman Achievement Test, to determine defendant's ability to understand paragraph meaning, but she did not time the test. The test is a timed test, and therefore defendant's scores were not comparable to the standard scaled scores. However, if he had been able to give all of the responses which he eventually gave in the standard amount of time, his score would have been equal to that of the average student starting sixth grade. Ms. Cartwright admitted on cross-examination that it is not unusual for a child of defendant's mental age to try to conceal his lack of knowledge or understanding out of embarrassment.
In ruling on the motion to suppress, the court stated:
"In a sense, [defense counselors] have the burden of persuasion, even though there was an issue which suggested that perhaps they could argue the voluntariness issue that the State was assuming as part of the motion, I think, to quash the [statements].
I can say, based on the record before me that there, really, is no merit to that portion of the motion, so what is left is what was originally set forth in the motion, and that is the question of whether the defendant sufficiently understood the rights he allegedly waived at the time he made a statement to the police."
Both of defendant's statements were introduced into evidence at trial. In his statements defendant admitted that, after Davis and Brooks stopped Madison, Davis told defendant to check Madison's pockets for a wallet. Defendant put his hand into a pocket and found some change, but he did not take any of it. After they returned to defendant's apartment Davis offered to split the money with Brooks and defendant. Brooks received his share but defendant never received any money. Defendant's statements were substantially corroborated by eyewitnesses who saw Davis rob Madison.
In its instructions to the jury, the court stated:
"A person is legally responsible for the conduct of another person when either before or during the commission of an offense and with the intent to promote or facilitate the commission of that offense, he knowingly . . . attempts to aid ...