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In Re Kenneth W, A Minor v. Kenneth W.

February 17, 2012

IN RE KENNETH W, A MINOR
THE PEOPLE OF THE STATE OF ILLINOIS,
PETITIONER-APPELLEE,
v.
KENNETH W., A MINOR,
RESPONDENT-APPELLANT.



Appeal from the Circuit Court of Cook County, Juvenile Justice Division No. 07 JD 5874 Honorable Terrence V. Sharkey, Judge Presiding.

The opinion of the court was delivered by: Presiding Justice Robert E. Gordon

PRESIDING JUSTICE ROBERT E. GORDON delivered the judgment of the court, with opinion.

Justices Garcia and Lampkin concurred in the judgment and opinion.

OPINION

¶ 1 In a petition for adjudication of wardship filed December 3, 2007, respondent Kenneth W., a 15-year old minor, was charged with aggravated criminal sexual abuse and criminal sexual abuse of C.M, his four-year old niece, between November 7, 2007, and November 15, 2007. A separate petition also brought the same charges against respondent's twin brother, Keith W. After a separate but simultaneous bench trial, the trial court adjudicated respondent a delinquent and sentenced him to an indeterminate term of custody until his twenty-first birthday in the Department of Juvenile Justice.

¶ 2 On this direct appeal, respondent claims, first, that the trial court's ruling was against the manifest weight of the evidence, where two psychologists disagreed over whether defendant was capable of making a knowing and intelligent waiver of his Miranda rights and the trial court found the testimony of one expert more persuasive than the other. Second, respondent claims that the trial court erred by admitting out-of-court statements by the victim, as relayed through the testimony of a detective and the victim's father.

¶ 3 First, we find that the trial court's Miranda ruling was not against the manifest weight of the evidence, where the trial court was presented with the conflicting testimony of two psychologists, and where the trial court resolved the credibility conflict by finding the conclusions of one psychologist more persuasive than the other. Second, we find that the victim's statements to her father were non-testimonial, and thus the father's testimony about these out-of-court statements did not violate respondent's right to confront the witnesses against him. Third, we find that, even if the trial court erred by admitting a detective's testimony about other out-of-court statements made by the victim, there was no reasonable probability that the trier of fact would have acquitted respondent absent the error. The other evidence included: the respondent's confession; and the testimony of the pediatrician who examined the victim on November 27, 2007, and who also relayed the victim's statements. Since the remaining evidence was overwhelming, we find no reasonable probability of acquittal, even absent the error.

¶ 4 For these reasons, we do not find respondent's claims persuasive and we affirm the adjudication and sentence.

¶ 5 BACKGROUND

¶ 6 I. The Charges

¶ 7 On December 3, 2007, the State filed a petition of adjudication of wardship for respondent. The petition alleged that, between November 7, 2007, and November 15, 2007, respondent, who was the uncle of C.M., committed the offenses of aggravated criminal sexual abuse and criminal sexual abuse. Specifically, the petition alleged that respondent "rubbed lotion on his penis and victim's vagina and butt, " and "rubbed his penis on victim's vagina and butt."

¶ 8 On December 19, 2008, an amended petition was filed which alleged five counts: two counts of criminal sexual assault (counts I and II); two counts of aggravated criminal sexual abuse (counts III and IV); and one count of criminal sexual abuse (count V).

¶ 9 II. Defendant's Motion to Suppress His Statements

¶ 10 On April 16, 2009, respondent filed a motion to suppress his statements, alleging that his statements were obtained by the police during a custodial interrogation and without a knowing, voluntary, and intelligent waiver of his Miranda rights. Respondent alleged that, "due to the Minor-Respondent's age, physical, physiological, mental, educational and/or psychological state, capacity, and condition, he was incapable and unable to appreciate and understand fully the meaning of his Miranda rights."

¶ 11 At a suppression hearing which was held on July 10 and 24 and August 7, 2009, the following four witnesses were called by the State: Detectives Mark DiMeo and Jose Castaneda, who described the circumstances of respondent's custody and questioning; Assistant State's Attorney (ASA) Johanna Tracy, who interviewed respondent; and Dr. John Murray, a psychologist employed by the DuPage County Court Services and retained by the State who testified that respondent was capable of a knowing, intelligent and voluntary waiver of his Miranda rights. The defense called Dr. Ascher Levy, a staff psychologist at the Cook County Juvenile Court Clinic, who concluded that respondent could not have voluntarily waived his Miranda rights when he was questioned by the police on December 2, 2007.

¶ 12 Detective DiMeo testified that, on December 2, 2007, at approximately noon, he and his partner, Detective Jose Castaneda, drove to respondent's residence, where respondent and his father agreed to accompany the detectives to the police station. When they arrived at the police station, Detective DiMeo read respondent his Miranda rights in the presence of respondent's father. After reading aloud each right, the detective tried to explain what each right meant. For example, after informing him of the right to remain silent, the detective added "[y]ou could talk to me or not talk to me, the choice is yours." After informing respondent that he had a right to an attorney, Detective DiMeo added "[n]ot one from the police or one from the State's Attorney's Officer [sic], [an] attorney that works for you." The detective explained that an attorney is "someone that would work for [respondent] to see that his rights and best interests were kept." To explain the concept that anything could be used against defendant in a court or proceeding, the detective told respondent that "if he talked to me that I would take notes and that later on people would hear what he told me, whether it was in a courtroom or in another type of proceeding." Starting at approximately 1:10 p.m., Detective DiMeo questioned respondent in the presence of respondent's father for approximately a half-hour and then placed respondent under arrest.

¶ 13 Detective Castaneda testified that, at approximately 4 p.m., he and Detective DiMeo transported respondent and respondent's father to another police station where respondent was given a polygraph examination. Respondent and his father were at this other police station for approximately 2 to 3 hours, and then the detectives transported them back to the original police station, arriving back at approximately 8 p.m.. Detective Castaneda testified that he then contacted ASA Tracy who arrived at the police station at approximately 9:30 p.m.

¶ 14 ASA Tracy also testified that she arrived at the police station at approximately 9:30 p.m. Her interview of respondent began at approximately 10:15 p.m. and lasted approximately an hour and forty-five minutes. Respondent's father was present for the entire interview. At some point, ASA Tracy asked the police officers to leave the room and asked respondent how he had been treated. Respondent indicated that he had not been mistreated, and he stated that he was not hungry. He also had a soda during the interview.

¶ 15 ASA Tracy testified that, before the interview began, she advised respondent and his father of respondent's Miranda rights. She also informed respondent that, if he wanted an adult there who was not his father, she could arrange for that. Respondent indicated that he wanted his father present. Since she was aware that respondent was a juvenile, after each right, she tried to explain it in more simple terms. For example, after the right to remain silent, she explained to him "that it meant he did not have to talk to [her] at all." Both respondent and his father indicated that they understood the Miranda rights.

¶ 16 The hearing was continued until July 24, 2009, when the defense called Dr. Ascher Levy, a staff psychologist in the Cook County Juvenile Court Clinic. Dr. Levy testified that he had been asked by the trial court to evaluate whether there were factors that may have affected respondent's ability to understand and waive his Miranda rights at the time of the interviews by the police and the ASA. Dr. Levy testified that he had concluded, within a reasonable degree of professional certainty that respondent could not have knowingly, intelligently and voluntarily waived his Miranda rights at the time of the police interviews.

¶ 17 The parties offered a stipulation that Dr. Levy, who had a doctorate in clinical psychology, was an expert in clinical psychology and he was accepted as an expert by the court.

¶ 18 Dr. Levy testified that, as part of his evaluation, he interviewed respondent twice, once on May 1, 2008, and once on June 3, 2008, for a total time of approximately an hour and 45 minutes. In addition to these interviews, Dr. Levy also reviewed police records, hospitalization and outpatient treatment records and school records. In addition to interviewing respondent and receiving his records, Dr. Levy also interviewed respondent's father and mother, and his twin brother.

¶ 19 Dr. Levy testified that, based on his interviews and respondent's records, respondent had experienced psychotic symptoms for as long as seven years prior to the police interview. Respondent was prescribed antipsychotic medication but respondent informed Dr. Levy that he had not been taking his medication at the time of the police interview. Dr. Levy testified that respondent had also previously been diagnosed with depression and attention deficit hyperactivity disorder (ADHD).

¶ 20 Dr. Levy explained that psychosis could interfere with a person's ability to intelligently, knowingly and voluntarily waive his Miranda rights because the person is out of touch with reality and may be experiencing hallucinations or delusions that interfere with logical reasoning. Depression could also affect this ability because it may impair attention and concentration, and it may render a person unconcerned about what is going to happen to him or her. ADHD affects a person's ability to take in and process information, such as Miranda rights.

¶ 21 Dr. Levy testified that, during his interview of respondent, he observed symptoms of ADHD, namely, that respondent's short-term memory was impaired. Respondent had difficulty repeating back information which Dr. Levy had just provided.

¶ 22 Dr. Levy testified that, based on the information that he gathered, respondent had a lower than average intelligence. For example, Dr. Levy testified that, during his interview of respondent, the doctor frequently found that he would ask questions and respondent would not grasp their meaning.

¶ 23 When asked whether he thought respondent was intentionally trying to fail in answering questions about the Miranda warnings, Dr. Levy responded: "I believe that some of his statements may have been self-serving, that he may have deliberately been trying to present that."

¶ 24 Dr. Levy testified that circumstances that affected respondent's ability to knowingly and voluntarily waive his Miranda rights included the fact that: respondent had not eaten all day; he had been at the police station 13 hours; and the ASA's interview had lasted until well-past the typical bedtime of someone his age. Also respondent and his father had both informed Dr. Levy that they had requested a lawyer, that they were not provided with one, and that respondent had been threatened with adult prosecution.

ΒΆ 25 During cross-examination, Dr. Levy testified that respondent had been hospitalized three times: in June 2006, in July 2006, and in January 2007. Dr. Levy testified that respondent had told him that his mother initiated all three hospitalizations because of inappropriate displays of anger, and that he had never experienced any of the symptoms described in the hospital reports. Respondent's father also stated that he had never observed respondent act strangely. Dr. Levy's impression was that respondent had received a bipolar diagnosis based on misinformation ...


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