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06/27/89 the People of the State of v. Brian Bernasco

June 27, 1989

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLANT

v.

BRIAN BERNASCO, DEFENDANT-APPELLEE



APPELLATE COURT OF ILLINOIS, FIFTH DISTRICT

541 N.E.2d 774, 185 Ill. App. 3d 480, 133 Ill. Dec. 563 1989.IL.1006

Appeal from the Circuit Court of Madison County; the Hon. Paul Riley, Judge, presiding.

APPELLATE Judges:

JUSTICE CHAPMAN delivered the opinion of the court. HOWERTON and GOLDENHERSH, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE CHAPMAN

This is an appeal by the State from an order of the trial court suppressing the confession of the defendant, Brian Bernasco, as involuntary. On December 30, 1986, the juvenile officer of the Collinsville police department told the defendant's father that he wanted to talk to the defendant at the station. When the defendant and his father arrived at the police station the juvenile officer told them that a detective would do the questioning. According to the testimony of the defendant's father, Detective Zukosky appeared and stated: "You can come in now." The defendant's father said that he then got up to go in with the defendant, but was told by the detective, "[No], you sit and wait here." Detective Zukosky, however, testified that he did not recall the father wanting to accompany the defendant nor did he tell the father that he could not do so.

Detective Zukosky took the defendant to the detective's office located in the basement of the Collinsville police station. The defendant, who was 17 years old and had never been arrested or interrogated by the police, testified that he was scared when he was taken downstairs. Officer Borkowski joined the defendant and Detective Zukosky in the detective's office. The door to the office was left open. The defendant was given a copy of his Miranda rights and Officer Borkowski testified that he read each section to the defendant, who then initialled each section. The defendant was asked if he had any questions about his rights, and if he understood them, and he acknowledged that he did understand them. The defendant then signed a waiver of rights form which was witnessed by Officer Borkowski and Detective Zukosky.

Officer Borkowski then read the defendant his rights as printed on the "voluntary statement forms" used to take the defendant's statement. The defendant then gave an oral statement in which he admitted his involvement in several burglaries, and Officer Borkowski reduced the statement to writing at the defendant's request. The defendant was then given the statement to read, and Detective Zukosky testified that he read it aloud. The defendant then initialed the scratch mark that Borkowski had made and signed the voluntary statement. Detective Zukosky testified that there was nothing in the defendant's demeanor or his answers to questions that would indicate that he did not understand what his rights were. He stated that the defendant did not seem to have any trouble grasping the questions he was asked, and that he answered in a normal manner, giving logical answers. No threats or promises were made to the defendant and he did not appear to be intoxicated or under the influence of any drugs.

On cross-examination, Detective Zukosky testified that he did not know if the defendant was in school or what level of education the defendant had attained. Zukosky also agreed that he did not know anything about the defendant's reading ability, comprehension ability, or IQ. Detective Zukosky also stated that he did not know if someone with a fourth-grade reading and comprehension level could understand legal terms. Officer Borkowski similarly acknowledged that he was not familiar with the defendant's academic credentials or his reading ability.

Don Mattingly, a school psychologist employed by the Parando Special Education District in Red Bud, testified for the defendant at the suppression hearing. Mattingly has a bachelor's and a master's degree in psychology from Eastern Illinois University and has spent the last 12 years working as a school psychologist. Mattingly evaluated the defendant in March of 1986, approximately nine months prior to the defendant's interrogation, to determine whether he was qualified for special education services. After evaluating the defendant, who was attending regular classes at the time, Mattingly concluded that the defendant did not qualify for the Collinsville special education programs. Mattingly also concluded that the defendant had a full scale IQ of 80, and he stated that the 80 to 89 range is referred to as the

slow learner or low average range. Mattingly also determined that the defendant's reading skills were at the beginning to middle fourth-grade level.

The psychologist testified that when the two police officers interviewed the defendant in the police station, the defendant would have found the circumstances intimidating. On cross-examination, however, Mattingly also indicated that anyone, regardless of educational background, who was being interrogated by two police officers would find the circumstances intimidating. In such a situation, Mattingly stated that the defendant would probably agree "to most everything that was said to him to get himself out of the situation."

Mattingly further stated that in his opinion defendant did not have the ability to understand legal terms. He agreed that it was unlikely that the defendant could understand words like "interrogate," "court-appointed attorney," "intimidation," "immunity," or "waiver." He also testified, however, that the defendant probably had an idea what a lawyer is, and would likely understand the phrases "I do not have to talk with any Collinsville police officer, unless I want to" and "I know I can refuse to answer any questions."

The defendant's father, Carl Bernasco, testified that the defendant dropped out of school in the ninth grade and had never before been arrested or interrogated by the police. Mr. Bernasco testified that the only reason he did not go with his son when he was being questioned by the police was because Detective Zukosky told him that he could not.

The defendant, Brian Bernasco, also testified at the suppression hearing. He stated that the officer handed him a copy of the Miranda waiver and read it to the defendant at a normal pace. The defendant admitted that he initialed and signed the waiver of rights forms, but stated that he was not paying attention, was scared, and did not understand what the waiver meant. The defendant also denied that the officer asked him if he understood his rights after each section of the Miranda waiver was read to him. Instead, the defendant stated that the officer told him to initial each paragraph, and then when he finished reading the entire document, he was asked if he understood his rights. The defendant admitted that he told the officer that he understood his rights when he was asked.

The defendant also admitted initialing the Miranda rights waiver at the top of the voluntary statement form but denied that Detective Zukosky readvised him of his rights. After signing the waiver forms, the defendant was asked to tell everything he knew. The defendant gave his statement and Detective Zukosky wrote it down. The defendant admitted that the information contained in the written statement came from him and that he read it over, but stated that he did not read it out loud. The defendant admitted signing the voluntary statement forms, but said that he did not understand at the time of the questioning that he had a right to refuse to speak to the police and had a right to leave when he wanted.

The court found that the defendant did not knowingly and voluntarily waive his right to remain silent. The court stated that it did not find that the Collinsville police department did anything inappropriate or threatened or harassed the defendant in any way. The court nevertheless suppressed the defendant's statement because:

"Based upon the Berry case [ People v. Berry (1984), 123 Ill. App. 3d 1042, 463 N.E.2d 1044] I do not believe that this Defendant, who had no prior criminal experience and who reads at a beginning fourth-grade level and who, more importantly, comprehends at a fourth-grade level, could affectively [ sic ] under those circumstances, without the aid of his parents or someone who would assist him in translating what was really happening, I don't believe he voluntarily waived his rights, even though there is no ...


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