dissenting:
I must respectfully dissent from the result reached in the majority opinion because I find that there is an adequate basis in the record to support the trial court’s finding of prosecutorial misconduct. In my opinion, the trial court was justified in dismissing the indictment for the reason that, while there may have been Some competent evidence to support the indictment, the minor’s testimony was rendered incompetent by the prosecutorial misconduct in obtaining the testimony.
In reaching its decision, the trial court made detailed findings of fact covering the events from the time the 15-year-old eighth grader entered the police station to the time the prosecutor brought him before the grand jury 28 hours later. Following initial inquiries by police investigators, the minor’s parents took him to the police station at 9 a.m. on August 20, 1984. After the father left the station to go to work, and sometime before 1:30 p.m., the mother asked to take the minor home. She was told that the minor had to wait for the State’s Attorney and could not leave. At 4 p.m., the minor’s youth counselor, Clifford Clark, asked when the minor would be released and was told the minor would be released when they finished processing. At 7 p.m., the minor’s mother again asked to take him home and was told by a detective that the minor had to stay because he had to go to court the next day. The officer assured the mother that the minor was merely a witness to a killing being investigated and would be home the next day after he had made a statement. The police then detained the minor overnight at the police station with neither parent present and against the parents’ wishes. The following morning, 24 hours after the minor had entered the police station, the police took him from the station to the criminal court building at 26th and California.
At one point in the early afternoon, the youth counselor saw the minor alone outside the fourth floor grand jury room. However, when the minor later went to the snack shop on the first floor, he was accompanied by a police officer. This officer later told the minor’s sister and guardian, Torra Humphrey, that the minor had to make a statement before he could leave. The minor was then interviewed by the public defender who represented Gerald Cooper, who was already in custody for the crime. The trial court related the subsequent events as follows:
“[J]ust before testifying, the Assistant State’s Attorney [ASA] interviewed defendant. Two detectives were present. The ASA testified he gave only the defendant the Miranda rights. He did not give those rights to the other four witnesses he interviewed prior to their testimony before the Grand Jury. Thereafter, defendant told the ASA the same story he had told all along. The ASA told defendant the others were telling a different story. Defendant then made a different statement. The ASA testified that this statement implicated defendant in the killing and thus defendant was no longer merely a witness.”
As a result, the grand jury returned an indictment for the minor.
In making its determination to grant the minor’s motion to dismiss the indictment, the trial court stated that the issue in the instant case was prosecutorial misconduct and distinguished United States v. Washington (1977), 431 U.S. 181, 52 L. Ed. 2d 238, 97 S. Ct. 1814, where the Supreme Court held that defendant was not entitled to a target warning, from the present case on the ground that there was no evidence of any governmental misconduct in Washington. On this appeal, the majority found that the trial court’s attempts to distinguish Washington were “unavailing” and that the minor must have been aware of his potential criminal liability when the assistant State’s Attorney informed him that the other witnesses related a different story. Therefore, the majority concluded that the conduct of the authorities did not amount to an “unequivocally clear denial of defendant’s right to due process,” and the minor was no more entitled to a target warning than the defendant in Washington.
■ The instant record discloses that members of the minor’s family and his youth counselor testified at the hearing on the motion to dismiss the indictment that they had been repeatedly told that the minor was merely a witness, but could not go home until he testified. Although not one of them was able to name or otherwise identify the responsible parties, I do not find that their inability to do so undermined their testimony. It is not reasonable to expect the mother, the sister and the youth counselor to identify any of the police personnel or others when there was no reason for them to know their names and when they fully expected the minor to be released shortly. They had been assured repeatedly that the minor’s appearance was routine and, thus, they saw no need to take precautions to identify or to remember the names of the parties involved or to obtain an attorney. In my view, the family and youth counselor had been lulled into inaction by the conduct and promises of the police personnel and the prosecutor in a coercive atmosphere.
In addition, the minor argues in his brief that a defendant must be informed specifically that he has the right to refuse to answer any question that will tend to incriminate him. (Ill. Rev. Stat. 1985, ch. 38, par. 112 — 4(b).) Pursuant to the record, the minor was not told that he had the right to refuse to answer any questions that would tend to incriminate him. Instead, he was read a standard form Miranda warning informing him that he had the right to remain silent. This reading of Miranda had little or no effect once he had been in custody for 24 hours and had been told that he could not leave until he testified. The minor further argues that as a 15-year-old eighth grader, if he had exercised his right to remain silent, he would not have been allowed to leave. His detention, already in its second day, would have continued. The warnings specifically required by section 112 — 4(b) would have informed him that during his testimony, he could have refused to answer questions about his participation in the chase. In my opinion, the prosecution’s failure to follow the law which requires that a defendant be informed of his right to refuse to answer questions was prejudicial and lends support to the trial court’s conclusion that prosecutorial misconduct resulted in a denial of the minor’s right to due process of law.
The prejudice to the minor was demonstrated in the grand jury proceedings, where the following colloquy ensued between one of the grand jurors and the minor:
“A JUROR: Why didn’t you want a lawyer? Why did you refuse a lawyer? Why did you refuse the help of a lawyer?
THE WITNESS: Why?
A JUROR: Why didn’t you want a legal — when he asked you if you wanted a lawyer, why did you say no?
THE WITNESS: Because I didn’t know if I needed a lawyer or not.
* * *
A JUROR: Do [sic] your sister know-you are here?
THE WITNESS: Yes, ma’am.
A JUROR: She is here with you?
THE WITNESS: No, ma’am. She had to go to work.
A JUROR: Did she talk1 tq the State’s attorney or anyone downtown when the police brought you down? Did she?
THE WITNESS: My mother arid father brought me to the police station, sir.
A JUROR: Your mother and father brought you down here?
THE WITNESS: Yes.
A JUROR: Did they talk to the police?
THE WITNESS: They talked to the police.”
. The majority opinion disposes of the above colloquy by stating that “[A]ny ‘legally untrained fifteen year old eighth grader’ who could discern the fine distinction between those rights [under section 112 — 4(b)] clearly could understand the knowingly waive his Miranda rights, thus defeating a major premise of defendant’s argument on this appeal.” (164 Ill. App. 3d at 727-28.) The majority concludes that the minor knowingly waived his Miranda rights. However, the majority does not cite to any basis in the record for this finding and I am unable to conclude that the record and the totality of the circumstances establish or support a finding of the minor’s knowing waiver of his Miranda rights.
In my view, the facts and circumstances in the instant case present compelling reasons to affirm the ruling of the trial court. As previously noted, throughout the initial 28-hour detention, neither defendant nor any member of his family had been told that defendant was free to leave. In fact, they had been told the opposite. No friend, family member or attorney stood at defendant’s side as the prosecutor questioned defendant and gave Miranda warnings. The trial court, as trier of fact, heard and saw the witness and was in a better position than the majority to conclude on the record that the assistant State’s Attorney’s actions in using the grand jury like an inquisition violated the minor’s right to due process of law.
It is the province of the trier of fact to draw inferences from the evidence and to determine the credibility of witnesses and the weight to be given their testimony. (People v. Zuniga (1973), 53 Ill. 2d 550, 293 N.E.2d 595.) A reviewing court may not substitute its judgment for that of the trier of fact on questions regarding the weight of the evidence of the credibility of the witnesses. (People v. Manion (1977), 67 Ill. 2d 564, 367 N.E.2d 1313.) The prosecution knowingly presented the testimony of the 15-year-old to the grand jury after deliberately misrepresenting the facts and circumstances to the family members and the youth counselor. The decision to use said testimony should not be that of the prosecutor. The minor’s due process rights were not safeguarded and the claim to dismiss the indictment should be allowed. People v. Lawson (1977), 67 Ill. 2d 449, 367 N.E.2d 1244.
Moreover, in my opinion, the conduct of the prosecutor was prejudicial and objectionable. (See People v. Beringer (1987), 156 Ill. App. 3d 309, 509 N.E.2d 578.) This court should deter this kind of conduct to guarantee that the prosecution acts with due regard to the rights of minors. (See In re B.R. (1985), 133 Ill. App. 3d 946, 479 N.E.2d 1084.) Under the totality of the surrounding facts and circumstances, the trial court was correct and should be affirmed.