People v. Kadow

2021 IL App (4th) 190103
FILED
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) 190103

Decision 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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