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In re S.W.N.

Court of Appeals of Illinois, Third District

July 13, 2016

In re S.W.N., a Minor
S.W.N., Respondent-Appellant. The People of the State of Illinois, Petitioner-Appellee,

         Appeal from the Circuit Court of Bureau County, No. 15-JD-30; the Hon. Marc P. Bernabei, Judge, presiding.

          Michael J. Pelletier and Jay Wiegman, both of State Appellate Defender's Office, of Ottawa, for appellant.

          Geno J. Caffarini, State's Attorney, of Princeton (Mark A. Austill, of State's Attorneys Appellate Prosecutor's Office, of counsel), for the People.

          Eric M. May, of Princeton, guardian ad litem.

          Panel JUSTICE LYTTON delivered the judgment of the court, with opinion. Justices Holdridge and McDade concurred in the judgment and opinion.



         ¶ 1 Respondent, S.W.N., appeals from his adjudication for delinquency based on the offense of criminal sexual assault. Respondent argues that his confession, which was admitted at trial, should have been suppressed because he did not knowingly and intelligently waive his Miranda rights. We vacate the trial court's adjudication of delinquency, reverse its order denying respondent's motion to suppress his confession, and remand the matter for further proceedings.

         ¶ 2 FACTS

         ¶ 3 The State filed a petition for adjudication of wardship in which it alleged that respondent, a minor, was delinquent in that he had committed the offense of criminal sexual assault (720 ILCS 5/11-1.20(a)(1) (West 2014)). Specifically, the petition alleged that respondent "knowingly committed an act of sexual penetration by the use of force or threat of force by holding B.L. against a wall and placing his penis into the vagina of B.L." Respondent subsequently filed a motion to suppress statements, arguing that due to a mental deficiency he "was not able to sufficiently comprehend his rights per Miranda v. Arizona, 384 U.S. 436 (1966)."

         ¶ 4 At the hearing on respondent's motion, Officer Christopher Erickson of the Princeton police department testified that he was a certified juvenile officer. At approximately 3:30 p.m. on August 11, 2015, Erickson drove to respondent's house in order to interview respondent about an alleged sexual assault that had taken place in the bathroom area of Alexander park the previous night. Once there, Erickson met with respondent and respondent's mother. He told them that he was investigating a sex crime. Erickson asked respondent's mother for permission to interview respondent at the police department, and she granted him permission. Erickson explained to her that she could accompany respondent for the interview, but she declined, telling Erickson to "just take him."

         ¶ 5 Erickson testified that he and respondent made small talk on the way to the police department. He did not testify as to what type of vehicle he drove, where respondent sat in the vehicle, or whether respondent was restrained in any way. Erickson testified that though he did not place respondent under arrest, he believed he had probable cause to do so at that point. Once at the police department, Erickson asked respondent's permission to record the interview, then activated the recording device. Erickson testified that he "[a]dvised [respondent] that he was there on his own accord and also advised him of his Miranda rights." The recording of Erickson's interview with respondent was then played in open court.

         ¶ 6 The video recording begins with Erickson-who appears to be the only other person in the interrogation room-telling respondent: "Okay [respondent], I want you to understand something, okay. You came out to the police department with me willingly today, correct? Like, I didn't tell you you had to come, okay?" Respondent nods as Erickson is speaking. "You understand that you're free to leave, okay. If you don't want to talk to me, you don't have to talk to me. You remember how we got in here, okay? Just-at any time if you don't want to talk to me-if I ask you a question you don't want to answer, you don't have to answer it." Respondent continues to nod along, repeating "yeah" on occasion as Erickson speaks.

         ¶ 7 Erickson then explains to respondent that he is going to read him his Miranda rights, which Erickson describes to respondent as "a statement of [his] constitutional rights." Erickson sets a piece of paper and pen on the table in front of respondent and states:

"You're not under arrest, okay? I want you to understand that, okay? I'm just asking you some questions. You have the right to remain silent. You understand what that means, okay? [Respondent nods his head rapidly]. Like I said, you don't have to answer all my questions. Could I just have you put your initials right here by number one, saying you understand that? [Erickson points to paper.] Not saying that-"

         Respondent then looks up at Erickson, cutting him off midsentence to ask: "In cursive, or-?" to which Erickson replies: "However you want to sign your initials, bud." Respondent then signs his whole name, while Erickson tells him: "You don't have to write your whole name, just your initials."

         ¶ 8 Erickson then continues through the list of rights, reading each right a second time in slightly different words. For example, Erickson states: "Anything you say may be used against you. Okay, so anything you say could be used against you in court. You understand that? Okay." Respondent nods his head rapidly as Erickson asks if he understands. Respondent continues to nod in agreement each time Erickson reads and rereads a right. Finally, Erickson reads: "I understand what my rights are and am willing to talk. Is that true? I mean are you willing to talk to me?" Respondent nods affirmatively, at which point Erickson sets the pen down and says "Okay, go ahead and sign your name on that right there for me if you would please." Erickson explains again: "You're not under arrest. You know, if you want to shut this down at any time, feel free to do so." Respondent nods throughout that statement.

         ¶ 9 Erickson begins the interview by asking open-ended questions, but approximately 10 minutes into the interview he shifts almost exclusively to leading questions. Throughout the interview, Erickson accuses respondent of not being truthful. Respondent denies any misconduct through most of the interview, but his story evolves until he ultimately makes incriminating statements. Early in the interview, respondent mentions that he played on the Special Olympics basketball team at his high school. Erickson makes no response to that statement. At one point in the interview, respondent volunteers that he had twice been to teen court-once for a curfew violation and once for stealing a lawnmower. Throughout the interview, respondent speaks slowly and has a vacant expression on his face. The recording spans a total of 50 minutes, which includes a break in which respondent is given a bottle of water. The actual interview lasts approximately 43 minutes.

         ¶ 10 Erickson testified that after the interview, he informed respondent that he would be placed under arrest. Erickson notified respondent's mother, who then came to the police department.

         ¶ 11 The State introduced into evidence the Miranda waiver form that respondent is seen signing in the interview video. The form reads: "Before any questions are asked of you, you should know, " then lists four rights. Respondent's name is printed in the blank space between the introductory sentence and the rights themselves. Respondent's signature appears at the bottom of the form.

         ¶ 12 On cross-examination, Erickson elaborated on his training as a juvenile officer. He explained that in his role as a juvenile officer he is tasked with making sure an interviewee understands his or her constitutional rights. Erickson testified that if a person did not understand their rights, he was trained to "explain it in a different way that perhaps they may. The point of the class was that children of younger ages are developmentally different than adults." Erickson affirmed that these special steps are necessary because children are not as knowledgeable and understanding as adults. He agreed that as a juvenile officer, his duty was to "look out for" the welfare and best interests of the minor.

         ¶ 13 Erickson testified that he had no contact with respondent prior to meeting him at his house. Nothing in his interactions with respondent during the car ride to the police department provided Erickson with any indication as to respondent's education level or cognitive ability. He did not ask respondent any questions regarding respondent's cognitive abilities or intelligence quotient (IQ) level. Erickson agreed that the manner in which he read the Miranda warnings to respondent was the same manner as he would read them to adults of average intelligence. Erickson acknowledged that he read the Miranda warnings to respondent "with very little explanation of what they mean."

         ¶ 14 Erickson testified that respondent's statement regarding the Special Olympics "led [Erickson] to believe that [respondent] had somewhat of diminished cognitive function." Erickson did not ask respondent about his cognitive impairment because he didn't "know that [respondent] would have been able to answer that question." Erickson testified that knowing an interviewee to be in the "extremely low range in regards to mental abilities" would not affect the way he read Miranda warnings to that person and that he would read the rights to that person in the same way he would to any adult. On redirect examination, Erickson testified that respondent appeared to be understanding the Miranda warnings as Erickson read them.

         ¶ 15 The State called as its next witness Dr. Patricia Grosskopf, an expert in the field of forensic psychology. She testified that she performed three tests on respondent as a part of a cognitive ability examination: the Weschler Intelligence Scale for Children, Fifth Edition, Integrated (WISC-V); the Bender Gestalt II Perception Test (Bender Test); and the Trail Making Test Part A and B (Trails Test).

         ¶ 16 Grosskopf testified that respondent scored a 70 on the WISC-V, indicative of "extremely low intellectual function." She characterized the score as an IQ of 70. Following her examination of respondent, Grosskopf filed a report, which was entered into evidence. The report clarified that respondent scored in the second percentile on the WISC-V, meaning that he performed better than approximately 2 out of 100 peers. His score on the verbal comprehension index, which measured his "ability to use word knowledge, verbalize meaningful concepts, and reason with language-based information, " was in the tenth percentile, or the low-average range. Respondent's score on the fluid reasoning index, which measured his "logical thinking skills and his ability to use reasoning to apply rules, " was in the 0.1 percentile, or the extremely low range. Respondent's weakest area of performance was the working memory index, which measured his "attending, concentration, and mental control." In summary, the report concluded, in part, that respondent "present[ed] with limited concentration and although he may present as focused, internally he is not." For treatment, Grosskopf recommended: "Having [respondent] relay back information to assure that he is on task will be imperative for success. This should be consistently done, as [respondent] can give the impression he is focused, when in fact he is not." Grosskopf also recommended: "Information presented to [respondent] should be done so clearly, repetitively, and consistently."

         ¶ 17 Grosskopf testified that the Bender Test and Trails Test measure executive function. Respondent scored in the normal range on those tests, indicating no impairment in executive functioning. Grosskopf explained that executive functioning controls "[t]he ability to plan and the ability to have or understand consequences to behavior." Grosskopf's report described the Bender Test as follows:

"[The Bender Test] is *** used to evaluate visual-motor functioning and visual perception skills ***. Scores on the test are used to identify possible organic brain damage and the degree maturation [sic] of the nervous system. The [Bender Test] is used to evaluate visual maturity, visual motor integration skills, style of responding, and reaction to frustration, ability to correct mistakes, planning and organizational skills, and motivation."

         The same report described the Trails Test as follows:

"The [Trails Test] is a neuropsychological test of visual attention and task switching. It consists of two parts in which the individual is instructed to connect a set of 25 dots as fast as possible, while still maintaining accuracy. It can provide information about visual search speed, scanning, speed of processing, mental flexibility, as well as executive functioning. It is also sensitive to detecting several cognitive impairments."

         The report indicated that respondent's time fell "within an acceptable range."

         ¶ 18 When asked if she had an opinion regarding respondent's ability to understand his Miranda rights, Grosskopf responded: "I don't have the ability nor would I want to say if, during that interview [with Erickson], he would understand it." Later, she said that she had not asked respondent about the Miranda warnings.

         ¶ 19 Grosskopf testified that she examined respondent over the course of nine hours and that "he had no problem comprehending" the testing. Based on her interaction with respondent, Grosskopf did not believe that respondent would automatically respond in agreement to a question that suggested the answer. Grosskopf testified that respondent did well on reading comprehension and that he would ask questions if he did not understand something. She opined that respondent would have understood the questions Erickson asked during the interview. Grosskopf testified that she "couldn't give [respondent] a diagnosis of mental-well, mental retardation is the old terminology, but impaired extreme functioning." Nothing from her examination of respondent or her review of Erickson's interview led Grosskopf to believe that respondent's statements were not made voluntarily, knowingly, or intelligently.

         ¶ 20 At the conclusion of the State's case-in-chief, respondent moved for a judgment in his favor. The trial court denied respondent's motion.

         ¶ 21 Respondent called as his first witness Andrew Puck, a driver's education teacher at Princeton High School and respondent's Special Olympics basketball coach for three years. Puck testified that he had given respondent driving lessons the previous spring. Respondent was in a separate class for "adaptive special needs kids" with a different instructor, however Puck was respondent's instructor for the in-car lessons. Puck testified that he was unable to complete the required six hours of driving with respondent in the spring "because of [respondent] not functioning at a higher level." They had planned to resume lessons in the fall.

         ¶ 22 Puck explained why respondent had difficulties in his driving lessons:

"With [respondent], there are a lot of disconnects. And *** it has always been typical of [respondent] to where we would visit something, whether it is basketball or, you know, driving, and yes, yes, yes; I got it, coach; I got it. And 30 ...

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