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Docket No. 95350-Agenda 16-September 2003.

THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v. MARY
BRAGGS, Appellee.

Opinion filed December 18, 2003.-Modified on Denial of RehearingApril 15, 2004.

 

JUSTICE RARICK delivered the opinion of the court:

Defendant, Mary Braggs, was charged in the circuit court of CookCounty with two counts of first degree murder for the deaths of ConnieHall and Donald Rudolph. After refusing to conduct a hearing ondefendant's pending motion to suppress statements, the circuit courtdetermined that defendant was unfit to stand trial due to the severity of hermental retardation. The court thereafter conducted a discharge hearing,found the State's evidence sufficient to establish defendant's guilt beyonda reasonable doubt, and remanded defendant to the Department of MentalHealth and Developmental Disabilities for a period of five years.Defendant appealed.

The appellate court reversed and remanded. People v. Braggs, 302Ill. App. 3d 602 (1998). Holding that the circuit court had erred when itrefused to conduct a suppression hearing, the appellate court remandedthe cause for a hearing on defendant's motion to suppress. The appellatecourt also concluded that the evidence was sufficient to establish guiltbeyond a reasonable doubt for purposes of the discharge hearing.

On remand, the circuit court conducted a hearing on defendant'smotion to suppress, hearing testimony from the investigating detective, apsychiatrist, a clinical psychologist, and an assistant State's Attorney whohad interviewed defendant after she was formally arrested. The courtultimately ruled defendant was not competent to waive her Mirandarights, and consequently granted defendant's motion with respect tostatements made to the assistant State's Attorney after defendant's arrest.However, the court did not suppress an inculpatory statement defendantallegedly made to detectives shortly before she was formally arrested,concluding that defendant was not then in custody, there was no evidenceof police coercion or misconduct, and the statement was, therefore,admissible. The circuit court determined that a new discharge hearing wasnot necessary and reinstated the original order committing defendant to theDepartment of Mental Health. Defendant again appealed.

The appellate court reversed and remanded, stating:

"[W]hen the trial court ruled that Braggs' statements to thepolice were admissible because she was not in custody andMiranda was inapplicable, it was in error. Likewise, the court'sruling that, in the absence of police coercion or the defendantbeing in custody, the fact that Braggs was mentally handicappedwas to be considered only as to the weight to be given herstatements and not as to whether those statements wereinadmissible, was in error. The court should have consideredwhether Braggs' statement to the detectives was voluntary in astate-law sense based upon the totality of the circumstances.[Citation.] One of the factors that the court should haveconsidered was whether Braggs' mental retardation deprived herof 'the capacity to understand the meaning and effect of theconfession.' [Citation.] This is particularly important in thepresent case, where the trial court found the defendant wasincapable of waiving her rights under Miranda due to herdiminished mental capacity." 335 Ill. App. 3d 52, 65.

The appellate court remanded the cause for a new hearing on defendant'smotion to suppress, directing the circuit court to conduct a new dischargehearing thereafter. 335 Ill. App. 3d at 69. The appellate court observed,"much of the evidence presented at the motion to suppress hearing wasunavailable to the court which conducted the 1996 discharge hearing."335 Ill. App. 3d at 69.

We granted the State's petition for leave to appeal (177 Ill. 2d R.315), and we now affirm, with modification, the judgment of the appellatecourt. We begin with a recitation of the evidence adduced at thesuppression hearing.

Chicago police detective Edward Winstead testified that heinvestigated the deaths of Donald Rudolph and Connie Hall. The victims'bodies were both found in a first-floor apartment located on South PrairieAvenue in Chicago on April 28, 1993. Although officers initially thoughtthat Rudolph had been beaten to death, it was later determined thatRudolph died as a result of strangulation. Hall died as a result of multiplestab wounds. During the course of the investigation, Winstead beganlooking for defendant.

On May 7, 1993, Survilla Cameron contacted Winstead andinformed him that defendant lived with her. Cameron represented herselfto be defendant's sister and guardian; however, Winstead admitted henever saw any documentation to substantiate Cameron's claim. AfterCameron indicated that Winstead could speak with defendant, Winsteadtransported defendant and Cameron to Area One and questioned her.Prior to questioning, Cameron informed Winstead that defendant was"mentally incompetent." Winstead admitted one could "clearly see that shewas mentally deficient." Cameron agreed to help Winstead in hisinterrogation of defendant, but cautioned him that defendant was "slow."Winstead did not advise defendant of her Miranda rights. Theinterrogation took place in an interview room with another detectivepresent.

Winstead testified he had difficulty communicating with defendant inthat "sometimes she wouldn't answer questions," and other times she was"very slow in answering." In Winstead's own words: "She would be veryslow in answering. And her sister would then kind of repeat the questionor if Mary Braggs seemed to be paying attention to me she would thenanswer to her sister." If defendant responded, she would generally directher answers to Cameron, and Cameron would then "tell [Winstead] what[defendant] was saying." However, Winstead testified he could heardefendant as she spoke. During the interrogation, Cameron acted as anintermediary for Winstead. Defendant's answers were responsive toWinstead's questions in the sense that defendant would respond toquestions repeated by Cameron and first posed by Winstead.

Winstead summarized the substance of defendant's statements fromthe hour-long interrogation. According to Winstead, defendant told himthat she was in the apartment on South Prairie Avenue when two blackmales came to the door. Defendant overheard an argument and hid in thecloset. When she came out, defendant saw Hall dead in the bedroom.Defendant said Hall had been stabbed and was wearing white. Defendantsaid Rudolph was in the front room. He had been hit in the head with awrench and had been strangled to death. Winstead testified thatdefendant's description was "very accurate as to how the victims died andwhere they were found." Following the interrogation, Winstead tookdefendant and Cameron home.

On the morning of May 9, Winstead again questioned defendant, thistime at Cameron's apartment. As in all of the interviews, Cameron waspresent. Detective James Redmond was also present. Winstead saiddefendant was still very slow in answering questions, or she might notanswer at all, but during this second interrogation, she at least spokedirectly to him most of the time. Winstead testified he went to questiondefendant, a mere two days after the first interrogation, "to see if [he]could get a little bit more information, if she recalled more about the twoblack males who came to the door and the argument." Winstead testifiedthat defendant told him one of the men was named Ron and he was afriend of Cleo. Defendant described the other man as a tall black male.Winstead testified that the investigation revealed Ron Thomas was anacquaintance of Cleo and the victims, and when Winstead located him hewas with a tall black male named Mike.

Later that same afternoon, Winstead picked up defendant andCameron and took them to Area One. Winstead spoke to defendant in aninterview room. He indicated, as previously, it took defendant a long timeto answer questions. "Often times [sic] she would put her head down andsay 'I don't know.' " Winstead showed defendant photographs of RonThomas and Mike. Defendant quickly identified the photograph of Mikeas being the tall black male. Winstead said she was at first uncertain of theidentity of Ron Thomas, then she positively him. Winstead testified thatwhen he informed defendant the men were at the police station, defendantchanged her story. Defendant then said that these were not the two menwho came to the apartment and that it was two different men. Defendantreiterated that two men came to the door and she hid in the closet.

Winstead testified that on that same afternoon he took defendant andCameron to the scene of the murders. Defendant pointed out where thetwo bodies were found. Winstead testified that her account was consistentwith where the bodies were found by the police. Defendant then showedWinstead the closet where she hid. Winstead testified he examined thecloset and defendant "couldn't have possibly fit in there." Winstead thentook defendant and Cameron home, having questioned defendant at threedifferent locations over the course of the day.

On May 12, Winstead transported defendant and Cameron to thepolygraph unit of the Chicago police department. Although defendant wascooperative, the polygraph examination was inconclusive becausedefendant did not register enough emotion. Again, defendant was returnedto Cameron's apartment. Cameron and defendant subsequently changedresidences.

On June 25, 1993, Winstead picked up defendant and Cameronfrom their new apartment and again took them to Area One forquestioning. Prior to the questioning, Winstead informed Cameron that thepolice were looking at defendant as a potential suspect. Despite theState's representation otherwise, the record is silent as to whether thatinformation was communicated to defendant. Winstead, another detective,defendant, and Cameron were present in the interview room. Winsteadadvised defendant of her Miranda warnings from a standard form withoutadditional explanation. Defendant made no verbal response; she merelynodded her head in an affirmative manner. Although Winstead could notremember her exact words, he recalled that Cameron said something tothe effect of: "he's telling you that you don't have to talk to me and thatyou're not going to be in trouble or something." Defendant nodded herhead in agreement and "seemed to understand what her sister was saying."Defendant never verbally indicated that she understood, and she did notsign a waiver form. Indeed, it is unclear to what extent defendant everresponded to, or communicated with Winstead, He acknowledged thatCameron "initially" acted as an "interpreter," and it is obvious from theforegoing testimony that she was still acting in that capacity on June 25,1993, despite Winstead's suggestion to the contrary: "After a while, afterI talked to [defendant] somewhat, I could begin to understand or she'danswer me or she wouldn't." The record does not indicate whetherWinstead's questions to defendant were suggestive or leading, or whetherthey called for a narrative response.

Although the transcript of the suppression hearing does not reveal thesubstance of statements defendant made during the June 25 interview, thetestimony of another detective from the discharge hearing indicated thatdefendant said she and Connie Hall were in an apartment together onApril 28, 1993, when Donald Rudolph returned. Rudolph was drunk andstruck both defendant and Hall. Defendant then knocked Rudolph downand he struck his head. Hall became upset, accusing defendant of killingRudolph, and defendant then stabbed Hall a number of times in her upperbody. Following the hour-long interview, defendant was placed underarrest. An assistant State's Attorney arrived at the police station and againadvised defendant of her Miranda warnings.

Dr. Philip Pan, a psychiatrist, testified for the defense. On May 16,1996, Pan diagnosed the defendant as having moderate mental retardationand determined defendant was unfit to stand trial. He noted that four otherpsychiatrists had reached the same conclusion. In 1996, Pan concludedit was not likely that defendant could be restored to fitness any time in thenear future. On August 31, 1999, Pan again evaluated defendant. Dr. Pantestified that defendant was unfit for trial and would not become fit in thefuture. Pan also rendered his opinion that defendant was incapable ofunderstanding Miranda warnings.

By way of explanation, Dr. Pan testified that defendant could givesimple answers to questions she understood, but she was not capable ofabstract thinking. Although she knew she was born in 1941, defendanttold Dr. Pan, in the course of his 1999 interview, that she was 29 yearsold. Her thinking was "idiosyncratic," meaning that she was often "not onthe same page" as the person questioning her. She would frequentlyanswer questions in a completely irrelevant manner. When asked themeaning of her right to remain silent, she responded that she already hadan attorney. When Pan asked her what it meant that anything she saidcould be used against her in a court of law, she responded, "he know Ididn't do those two crimes. That is something I didn't do."

Dr. Linda Wertzel, a clinical psychologist, also testified for thedefense. Wertzel had examined defendant in 1994 and testified to herfindings. Wertzel concluded that defendant was mentally retarded with anIQ of 54. Wertzel described her observations of defendant at that time:

"[S]he was flat and passive, kind of emotionally blunted, noaffect. She was overweight. She was-her clothing was dirty. Herhygiene was very poor. She was picking at her skin and nails andnose and ears. She was nonspontaneous in her speech."

Defendant could provide only "simple answers to direct questions andreally did not provide a narrative of information." She stated her age to be29. Testing revealed that defendant functioned, mathematically, at akindergarten level. Defendant was unsure if she had ever gone to school.She could not read or write.

Wertzel administered a test designed to measure a person's ability toexpress thoughts accurately and coherently and to comprehend what otherpeople say. She determined that defendant could only express herself ata "very simple childish level" and she could not comprehend more than aone-step command. Wertzel said the test involved asking the subject totouch colored shapes in sequence. Wertzel first asked defendant to toucha red square (one-step command), then asked her to touch a red squareand a yellow circle in sequence (two-step command). Defendant could notget beyond the one-step command. Defendant was inconsistent in herability to identify shapes correctly. She displayed impairment on bothmotor speed and motor dexterity tests. She could not accurately draw andnumber the face of a clock.

When asked the meaning of various Miranda warnings, defendanteither said she did not know or she offered an irrelevant or inappropriateresponse. Eventually, defendant became frustrated and the interview wasterminated. As a result of her 1994 examination of defendant, Wertzelconcluded that defendant was illiterate, mentally retarded, "only minimallyable to care for her basic daily needs, her comprehension of her currentcircumstances was marginal, and she was unable to understand herMiranda rights.

Wertzel examined defendant again in October 1999 and concludedshe remained unable to understand her Miranda warnings. Dr. Wertzeltestified that defendant's behavior was "pretty similar" to her firstencounter with defendant. Defendant "acted as though she had only beenin jail for about a week." She identified Kennedy as president of theUnited States. Wertzel administered the Peabody Picture VocabularyTest, in which the subject is shown a pictures and is asked to nameactivities or pastimes represented therein. Defendant scored the ageequivalent of a five-year-old. After her 1999 examination of defendant,Wertzel again concluded it was "highly unlikely" that defendant ever hadthe ability to comprehend or waive Miranda rights.

Wertzel described defendant as "sort of like a child, *** unsure ofwhat is real and what is imagined, what is an actual memory, what is toldto them." Moreover, she stated that defendant does not tolerate stressvery well and is "suggestible." Wertzel described more than one instancewhere she was able to lead defendant in the questioning to get theinformation desired.

In rebuttal, the State called Assistant State's Attorney StanGonsalves. Gonsalves testified he went to Area One on June 25, 1993,to interview defendant. Prior to meeting defendant, detectives toldGonsalves defendant was "a little slow." Gonsalves advised defendant ofher Miranda warnings. Gonsalves said defendant was "just quiet at thatpoint." Defendant did not respond verbally when she was asked if sheunderstood her rights. Defendant nodded her head affirmatively afterGonsalves finished giving her the Miranda warnings. Cameron was in theroom, but did not say anything. Gonsalves testified that defendant wasresponsive to his questions during the interrogation, but he conceded thatcommunicating with defendant was "difficult" and "slow." The record doesnot indicate whether Gonsalves' questions to defendant were suggestiveor leading, or whether they called for a narrative response.

After hearing testimony in this matter, the circuit court rendered itsruling. The judge's initial statements indicate that he believed the issue inthis case was the same as that presented in People v. Bernasco, 138 Ill.2d 349 (1990), cited by defendant. The court perceived the issue as "twofold": whether defendant's statements were obtained free of policecoercion, misconduct, or overreaching; and whether "a valid Mirandawaiver must be knowing and intelligent."

Citing Colorado v. Connelly, 479 U.S. 157, 93 L. Ed. 2d 473, 107S. Ct. 515 (1986), the circuit court stated that a confession is notrendered involuntary under the federal due process clause without "somepolice overreaching." In the circuit court's view, there was no evidencesuggesting that the police had done anything to coerce the defendant togive a statement. The court ruled that defendant was not in custody untilafter she had confessed to Winstead; consequently, Miranda warningswere not required prior to that time, and any statements she made beforethat point were admissible. The circuit court determined that Winstead had"gratuitously offered" defendant Miranda warnings on the morning of herarrest, even though the warnings were not required by the attendantcircumstances. The court said there was "no dispute" that defendant wasmentally handicapped, but ruled "that goes to the weight of thosestatements, not to whether those statements were admissible."

The court concluded that defendant was in custody following herstatement to the Winstead and she did not knowingly and intelligentlywaive her Miranda rights. In so ruling, the court relied upon theuncontroverted testimony of Pan and Wertzel, and that of law enforcementpersonnel who observed defendant's actions and demeanor duringperiods of interrogation. The court specifically mentioned "the testimonyof Winstead about how she acted and [Assistant] State's AttorneyGonsalves that she did not respond verbally [when] given her rights. Shemerely stood silent."

Based upon the uncontested testimony of the witnesses, the courtsuppressed the statement defendant made to Assistant State's AttorneyGonsalves following her arrest. The court, however, denied defendant'smotion with respect to any statements made before defendant was incustody.

On appeal, the State posits a single issue: whether defendant's final"statement" or "confession" to Winstead-which, on the basis of the trialcourt's ruling, the State assumes was noncustodial-was "constitutionallyvoluntary because it was given without police coercion"-a secondassumption based upon conclusions the trial court drew from undisputedfacts. Defendant continues to argue, inter alia, that defendant was incustody when she gave the allegedly inculpatory statement to DetectiveWinstead and that she did not effectively waive her Miranda rights. TheState disputes the former contention, but not the latter.

We begin our analysis by identifying the relevant standard of reviewand the burden of proof. A court of review will accord great deference tothe trial court's factual findings, and will reverse those findings only if theyare against the manifest weight of the evidence; however, the court willreview de novo the ultimate question posed by the legal challenge to a trialcourt's ruling on a motion to suppress. People v. Sorenson, 196 Ill. 2d425, 431 (2001); People v. Schoening, 333 Ill. App. 3d 28, 31-32(2002). Where a defendant challenges the admissibility of his confessionthrough a motion to suppress, the State has the burden of proving theconfession was voluntary by a preponderance of the evidence. 725 ILCS5/114-11(d) (West 2000); In re G.O., 191 Ill. 2d 37, 49 (2000). Theconcept of voluntariness includes proof that the defendant made aknowing and intelligent waiver of his privilege against self-incrimination andhis right to counsel. People v. Reid, 136 Ill. 2d 27, 54 (1990); People v.Joya, 319 Ill. App. 3d 370, 378 (2001).

In this case, the trial court determined that defendant was unable toeffectively waive her Miranda rights, based upon the unrefuted testimonyof the doctors who had examined her and law enforcement personnel whoobserved her actions and demeanor. Consequently, the trial court grantedthe defendant's motion to suppress as to statements allegedly made bydefendant after she was formally arrested. The court denied defendant'smotion with respect to her earlier statement to Winstead only because thecourt believed she was not 'in custody" for purposes of Miranda at thattime. Since defendant continues to argue that she was in custody when shewas interrogated by Winstead at the police station on June 25, 1993, wefirst address the custodial issue.

The determination of whether a defendant is "in custody" forMiranda purposes involves "[t]wo discrete inquiries ***: first, what werethe circumstances surrounding the interrogation; and second, given thosecircumstances, would a reasonable person have felt he or she was not atliberty to terminate the interrogation and leave." Thompson v. Keohane,516 U.S. 99, 112, 133 L. Ed. 2d 383, 394, 116 S. Ct. 457, 465 (1995);United States v. Badmus, 325 F.3d 133, 138 (2d Cir. 2003). See alsoBerkemer v. McCarty, 468 U.S. 420, 442, 82 L. Ed. 2d 317, 336, 104S. Ct. 3138, 3151 (1984) ( "the only relevant inquiry is how a reasonableman in the suspect's position would have understood his situation"). Thus,in determining whether a person is "in custody" for purposes of Miranda,a court should first ascertain and examine the circumstances surroundingthe interrogation, and then ask if, given those circumstances, a reasonableperson would have felt he or she was not at liberty to terminate theinterrogation and leave. People v. Patel, 313 Ill. App. 3d 601, 604(2000). With respect to the latter inquiry, the accepted test is what areasonable person, innocent of any crime, would have thought had he orshe been in the defendant's shoes. People v. Fair, 159 Ill. 2d 51, 67(1994), quoting People v. Wipfler, 68 Ill. 2d 158, 166 (1977).

When examining the circumstances of interrogation, the followingfactors have been found relevant in determining whether a statement wasmade in a custodial setting: the location, time, length, mood, and mode ofthe interrogation, the number of police officers present, the presence orabsence of the family and friends of the accused, any indicia of formalarrest, and the age, intelligence, and mental makeup of the accused. SeePeople v. Lucas, 132 Ill. 2d 399, 417 (1989); People v. Fletcher, 328Ill. App. 3d 1062, 1073 (2002); People v. Armstrong, 318 Ill. App. 3d607, 613 (2000); Patel, 313 Ill. App. 3d at 604-05; People v. Rivera,304 Ill. App. 3d 124, 128 (1999); People v. Savory, 105 Ill. App. 3d1023, 1028 (1982). Although it is generally irrelevant that the interrogatingofficer subjectively viewed the individual under questioning as a suspect,the officer's beliefs, if conveyed by word or deed to the individual beingquestioned, are relevant to the extent that they would affect how areasonable person in the position of the individual being questioned wouldhave gauged the breadth of his freedom of action. Stansbury v.California, 511 U.S. 318, 324, 128 L. Ed. 2d 293, 299, 114 S. Ct.1526, 1529 (1994); Patel, 313 Ill. App. 3d at 604. Moreover, wherethe investigating officer is aware of particular characteristics or traits of theindividual that make him or her particularly vulnerable to the impressionthat he or she is in custody, and the officer exploits those characteristicsin questioning, that, too, is a relevant factor in determining whether theindividual is "in custody" for purposes of Miranda. See United Statesv. Erving L., 147 F.3d 1240, 1248 (10th Cir. 1998) (limited capacity tounderstand, and other particular personality traits, may be relevant tocustody question where officers are aware of those traits and theyinfluence the actions of the officers); cf. United States v. Macklin, 900F.2d 948, 951 (6th Cir. 1999) (no indication that the police were awareof defendants' mental deficiencies and the officers repeatedly adviseddefendants that they were not under arrest and did not have to answerquestions).

As we consider the age, intelligence, and mental makeup of theaccused-and an investigating officer's awareness and exploitation of thosecharacteristics-in our examination of the circumstances surrounding theinterrogation, so those factors are analytically intertwined with thereasonable-person prong of the custodial question. Indeed, other courtshave incorporated these factors into the reasonable-person standard itselfin varied circumstances involving investigatory interaction between thepolice and citizens. See United States v. Zapata, 997 F.2d 751, 759(10th Cir. 1993) (notwithstanding reasonable-person standard, attributessuch as age, education and intelligence of the accused have beenrecognized as relevant in determining whether consent was voluntary);United States v. Little, 18 F.3d 1499, 1505 (10th Cir. 1994) (inapplying the reasonable-person standard to a consent to search issue, the"particular personal traits *** of the defendant" may become relevant ***if the police officer knows of the personal traits or characteristics and theyinfluence his or her conduct); Commonwealth v. Reid, 571 Pa. 1, 28,811 A.2d 530, 546 (2002) (when considering whether consent wasvoluntarily given, a "reviewing court should evaluate the characteristics ofthe accused, the interaction between the accused and the police, andassess how a reasonable person in the accused's shoes would havereacted to that interaction"); United States v. Montgomery, 14 F.3d1189, 1194 (7th Cir. 1994) (even when examining a noncustodialinterrogation, a court should look to "the characteristics of the accusedand the details of the interrogation" to determine whether a reasonableperson would have felt coerced); United States v. Cichon, 48 F.3d 269,276 (7th Cir. 1995) (same); United States v. Oliver, 142 F. Supp. 2d1047, 1051 (N.D. Ill. 2001) (same).

The justification for incorporating general and readilydiscernible characteristics of the subject-actor into the reasonable-personstandard logically must apply in this situation as well. If, as is the case, weare concerned with what a reasonable person "in the defendant's shoes"(see Lucas, 132 Ill. 2d at 418) would have thought about his or herfreedom of action, the reasonable person we envision must at least wearcomparable footwear; otherwise, we ought to simply abandon the legalcharade that the defendant's characteristics, perspective and perceptionmatter at all.

Recognizing this principle, the Ninth Circuit Court of Appeals hassuggested the applicable standard should indeed be modified in thiscontext, where a juvenile is concerned, to reflect what a reasonablejuvenile would have thought in defendant's position. Alvarado v.Hickman, 316 F.3d 841, 848 (9th Cir. 2002), cert. granted, ___ U.S.___, 156 L. Ed. 2d 703, 124 S. Ct. 45 (2003). In its analysis, theAlvarado court first recited the now firmly established legal principle that"juvenile defendants are, in general, more susceptible to police coercionthan adults; as such, due process demands that a defendant's juvenilestatus be taken into consideration when determining the proper proceduralsafeguards that attach to a custodial interrogation." Alvarado, 316 F.3dat 843. The Alvarado court then reasoned, "If a juvenile is moresusceptible to police coercion during a custodial interrogation, then thesame juvenile is also more susceptible to the impression that he is, in fact,in custody in the first instance." Alvarado, 316 F.3d at 843. Next, thecourt seemingly sanctioned a reasonable-juvenile standard to be appliedto the determination of custodial interrogation. The Alvarado courtquoted, with special emphasis, from Erving L., 147F.3d at 1248:

" 'Given these facts, a reasonable juvenile in E.L.'s positionwould not have believed that the officers had curtailed hisfreedom of movement to a degree associated with formalarrest.' " (Emphasis in original.) Alvarado, 316 F.3d at 848,quoting Erving L., 147 F.3d at 1248.

The Alvarado court then observed, "When we survey the landscape ofstate court decisions, we note that every jurisdiction that has squarelyaddressed the issue has ruled that juvenile status is relevant to the 'incustody' determination, either as a factor in the totality of circumstancestest, or by way of modification to the reasonable person standard."(Emphasis added.) Alvarado, 316 F.3d at 850 n.5 (collecting cases). Seegenerally State v. Jason L., 129 N.M. 119, 126, 2 P.3d 856, 863(2000) (characteristics such as whether the person being questioned is achild or an adult are objective and relevant to the question of whether areasonable person would feel free to terminate questioning and leave);Ramirez v. State, 739 So. 2d 568, 574 (Fla. 1999) (applying"reasonable juvenile" standard to determine whether defendant wouldhave believed he was in custody at the time of the interrogation); State v.Smith, 546 N.W. 2d 916, 923 (Iowa 1996) ("it is appropriate toconsider the age of the defendant as an additional factor in making adetermination as to custody status"); In re D.A.R., 73 S.W.3d 505, 511(Tex. Ct. App. 2002) ("We believe the facts here establish that areasonable thirteen-year-old would have believed he was in custody"); Inre Loredo, 125 Or. App. 390, 394, 865 P.2d 1312, 1315 (1993)(custodial question entailed inquiry into what a reasonable person of thechild's age, knowledge and experience would have thought); In re RobertH., 194 A.D.2d 790, 791, 599 N.Y.S. 621, 623 (1993) ("[A] reasonable15-year-old, in the position of Robert, would not have believed he wasfree to leave the scene"); In re Rennette B., 281 A.D.2d 78, 85, 723N.Y.S. 31, 37 (2001) (same). In this context, our own appellate court hasmodified the reasonable-person standard, where a juvenile is involved,considering what a reasonable juvenile would have thought about his orher custodial status. See In re J.W., 274 Ill. App. 3d 951, 960 (1995)("Although J.W. had not been formally arrested *** a reasonable 14-year-old person would have been entitled to believe *** he was in policecustody and not free to leave"). See also People v. Armstrong, 318 Ill.App. 3d 607, 614-15 (2000).

The same rationale that requires modification of the reasonableperson standard to take into account the general characteristics ofjuveniles also militates in favor of such a modification where the mentallyretarded are concerned. "[M]ental retardation may have a significantimpact on an individual who finds himself involved with the criminal justicesystem, particularly in the context of confessions and interrogations. ***Many mentally retarded people may be less likely to withstand policecoercion or pressure due to their limited communication skills, theirpredisposition to answer questions so as to please the questioner ratherthan to answer the question accurately, and their tendency to besubmissive." L. Entzeroth, Putting the Mentally Retarded CriminalDefendant to Death: Charting the Development of a NationalConsensus to Exempt the Mentally Retarded from the Death Penalty,52 Ala. L. Rev. 911, 917 (2001). See also P. Hourihan, EarlWashington's Confession: Mental Retardation and the Law ofConfessions, 81 Va. L. Rev. 1471, 1473 (1995) ("Mentally retardedpersons are more susceptible to coercion, more likely to confess falsely,and less likely to understand their rights than people of normal intellectualability"). Just as they are more susceptible to police coercion during acustodial interrogation, the mentally retarded are also more susceptible tothe impression that they are, in fact, in custody in the first instance. Thecircumstances of the instant case amply demonstrate the point.

Including the initial interrogation of June 25, 1993, defendant wasquestioned by police six times before she was formally arrested: four timesat a police facility, once at her home and once at the scene of the crime.The police enlisted the aid and consent of Cameron-who apparentlyrepresented herself to be defendant's sister and legal guardian-in order toquestion defendant. Cameron acted as a translator of sorts and actuallyfacilitated the police interrogation. Her role in the process of interrogationis not what we characterize as that of a family member concerned withdefendant's welfare. It is not evident from the record that defendant eververbally assented to police interrogation. On every occasion that she wasquestioned outside her home, the police transported defendant. Twodetectives were always present during the interrogations. Although it is notclear from the record whether defendant was present when Winsteadadvised Cameron that defendant was a suspect, even a mentally retardedsuspect might well have regarded herself as such after Winstead hadexpressed disbelief of her version of events and had asked her to take apolygraph examination. We also note that Winstead for the first time readdefendant her Miranda rights on June 25, something he had not done inprevious encounters. We have no doubt whatsoever that a reasonableperson with defendant's mental capacity would have believed he or shewas in custody and not free to leave the police station.

In fact, our research has disclosed a case involving similarcircumstances, a person of apparently normal intelligence, and adetermination that the interrogation was custodial. In United States v.Wauneka, 770 F.2d 1434 (9th Cir. 1985), defendant was questioned bylaw enforcement officials on four occasions, three on the day of hisconfession. On the first three, he was transported from his residence to aBureau of Indian Affairs office by plain clothes agents. When he waspicked up the last time for further questioning, Wauneka was transportedby two armed officers and was placed in a large conference room withfour or five officers who each had an opportunity to question him. Thehour-long interrogation eventually turned accusatory. During a break,Wauneka, who was then 18 years old, broke down crying. FBI agentsresumed the questioning despite the fact that Wauneka was visibly shakenby this ordeal and eventually obtained a confession. Wauneka had nomeans of transportation, and he was never offered an opportunity to leavethe Bureau's office prior to his confession. On these facts, the court ofappeals upheld a district court ruling that Wauneka was "in custody" forpurposes of Miranda when he confessed. The court stated, "Areasonable innocent person in such circumstances probably would haveconcluded that he was not free to leave." United States v. Wauneka,770 F.2d 1434, 1438-39 (9th Cir. 1985).

Like Wauneka, the defendant in this case was repeatedly taken byofficers to a law enforcement facility and questioned. As in Wauneka, theinstant defendant was never told she could leave the station when shewished; she was taken home by the police when they were finished withher. By the time of the encounter on June 25, the atmosphere of theinterrogation had turned accusatory: defendant had taken a polygraphexamination and had been designated a suspect by Winstead. However,defendant, unlike Wauneka, is mentally retarded. She was only at thepolice station because her purported guardian/sister agreed to policerequests that she accompany them there. Her options, no doubt, seemedvery limited indeed.

Under the circumstances, a reasonable person with defendant'smental capacity would not have felt free to leave. In this case, the policeknowingly exploited defendant's mental retardation. While the custodyinquiry may not "place upon the police the burden of anticipating thefrailties or idiosyncracies of every person whom they encounter,"(Berkemer, 468 U.S. at 442 n. 35) neither does it sanction theexploitation of known frailties or idiosyncracies by the government. Modification or refinement of the reasonable person standard isappropriate where, as here, such exploitation has occurred. We concludethat the circuit court erred in ruling defendant was not in custody when sheallegedly gave an inculpatory statement to Detective Winstead on June 25,1993.

Having determined that Winstead's interrogation of defendant onJune 25 was custodial, we now address the question of whether defendantknowingly and intelligently waived her Miranda rights. Custodialinterrogation is, of course, inherently coercive and " 'trades on theweakness of individuals.' " Dickerson v. United States, 530 U.S. 428,435, 147 L. Ed. 2d 405, 414, 120 S. Ct. 2326, 2331 (2000), quotingMiranda v. Arizona, 384 U.S. 436, 455, 16 L. Ed. 2d 694, 712, 86 S.Ct. 1602, 1618 (1966). As we have noted previously herein, it isgenerally recognized that the mentally retarded are considered moresusceptible to police coercion or pressure than people of normalintellectual ability, they are predisposed to answer questions so as toplease the questioner rather than to answer accurately, they are morelikely to confess to crimes they did not commit, they tend to besubmissive, and they are less likely to understand their rights. See M.McCloud, Words Without Meaning: The Constitution, Confessionsand Mentally Retarded Suspects, 69 U. Chi. L. Rev. 495, 503, 538(2002); L. Entzeroth, Putting the Mentally Retarded CriminalDefendant to Death: Charting the Development of a NationalConsensus to Exempt the Mentally Retarded from the Death Penalty,52 Ala. L. Rev. 911, 917 (2001). P. Hourihan, Earl Washington'sConfession: Mental Retardation and the Law of Confessions, 81 Va.L. Rev. 1471, 1473 (1995).

However, evidence of a defendant's limited mental or intellectualcapacity at the time of a confession, alone, does not establish that he orshe was incapable of waiving Miranda rights. Limited intellectual capacityis one of several factors to be considered in this regard. People v. Foster,168 Ill. 2d 465, 476 (1995); People v. Mahaffey, 165 Ill. 2d 445, 462(1995).

Nevertheless, "[w]aiver of a constitutional right is valid only if it isclearly established that there was 'an intentional relinquishment orabandonment of a known right ***.' " People v. Johnson, 75 Ill. 2d 180,187 (1979), quoting Johnson v. Zerbst, 304 U.S. 458, 464, 82 L Ed.1461, 1466, 58 S. Ct. 1019, 1023 (1938). See People v. McClanahan,191 Ill. 2d 127, 137 (2000). Waivers must not only be voluntary, butmust be knowing and intelligent acts in the sense that they are done withsufficient awareness of the relevant circumstances and likelyconsequences. McClanahan, 191 Ill. 2d at137; Bernasco, 138 Ill. 2d at364-65.

A valid waiver of Miranda rights must be knowingly and intelligentlymade. Bernasco, 138 Ill. 2d at 364-65. A criminal suspect is not requiredto know and understand every possible consequence of a waiver of theFifth Amendment privilege for it to be knowingly and intelligently made.Colorado v. Spring, 479 U.S. 564, 574, 93 L. Ed. 2d 954, 966, 107 S.Ct. 851, 857 (1987). However, in order to effect an intelligent andknowing waiver of Miranda rights, a defendant must have " ' "a fullawareness of both the nature of the right being abandoned and theconsequences of the decision to abandon it." ' " Bernasco, 138 Ill. 2d at360, quoting Patterson v. Illinois, 487 U.S. 285, 292, 101 L. Ed. 2d261, 272, 108 S. Ct. 2389, 2395 (1988). The defendant need notunderstand far-reaching legal and strategic effects of waiving his or herrights or appreciate how widely or deeply an interrogation may probe;however, the defendant must at least understand basically what thoserights encompass and minimally what their waiver will entail. Mahaffey,165 Ill. 2d at 462, quoting Bernasco, 138 Ill. 2d at 363. Whether awaiver is knowing and intelligent is determined by the particular facts andcircumstances of the case, "including the background, experience, andconduct of the accused." Johnson v. Zerbst, 304 U.S. at 464, 82 L. Ed.at 1466, 58 S. Ct. at 1023; In re J.J.C., 294 Ill. App. 3d 227, 233(1998).

It is all too obvious, as the trial court concluded, that the defendantin this case did not knowingly and intelligently waive her Miranda rights.The State does not even attempt to argue that point. Winstead adviseddefendant of her Miranda warnings from a standard form withoutadditional explanation. Defendant made no verbal response; she merelynodded her head in an affirmative manner. Winstead later recalled thatCameron told defendant something to the effect of: "He's telling you thatyou don't have to talk to me and that you're not going to be in trouble orsomething." Defendant nodded her head in agreement and "seemed tounderstand what her sister was saying." Defendant never verballyindicated that she understood, and she did not sign a waiver form. Indeed,it is unclear to what extent defendant ever responded to, or communicatedwith, Winstead. He acknowledged that Cameron "initially" acted as an"interpreter," and it is obvious from his testimony that she was still actingin that capacity on June 25, 1993, despite Winstead's suggestion to thecontrary: "After a while, after I talked to [defendant] somewhat, I couldbegin to understand or she'd answer me or she wouldn't." That statementis hardly a testament to an acceptable level of communication andunderstanding between Winstead and defendant. The record does notindicate whether Winstead's questions to defendant were suggestive orleading, or whether they called for a narrative response.

Assistant State's Attorney Gonsalves testified that he adviseddefendant of her Miranda warnings, and she was "just quiet at that point."Defendant did not respond verbally when she was asked if she understoodher rights. Defendant simply nodded her head affirmatively after Gonsalvesfinished giving her the Miranda warnings. Cameron was in the room, butdid not say anything. Gonsalves testified that defendant was responsive tohis questions during the interrogation, but he conceded that communicatingwith defendant was "difficult" and "slow." The record does not indicatewhether Gonsalves' questions to defendant were suggestive or leading, orwhether they called for a narrative response. It does not appear from therecord that defendant had any prior experience with the criminal justicesystem.

Dr. Philip Pan characterized defendant's mental impairment asmoderate mental retardation. He determined her condition was profoundto a degree that she was unfit to stand trial. He noted that four otherpsychiatrists had reached the same conclusion. Pan rendered his opinionthat defendant was incapable of understanding Miranda warnings. Henoted that her thinking was "idiosyncratic," meaning she was often "not onthe same page" as the person questioning her. She would frequentlyanswer questions in a completely irrelevant manner.

Dr. Linda Wertzel, a clinical psychologist, examined defendant in1994 and testified to her findings. Wertzel concluded that defendant wasmentally retarded with an IQ of 54. Wertzel stated that defendant couldprovide only "simple answers to direct questions and really did notprovide a narrative of information." Defendant functioned, mathematically,at a kindergarten level. Defendant was unsure if she had ever gone toschool. She could not read or write. Wertzel determined that defendantcould only express herself at a "very simple childish level" and she couldnot comprehend more than a one-step command. Defendant'scomprehension of her circumstances was marginal, and she was unable tounderstand her Miranda rights.

Wertzel examined defendant again in October of 1999 andconcluded defendant remained unable to understand her Mirandawarnings. Wertzel then administered the Peabody Picture Vocabulary Testto defendant. Defendant scored the age equivalent of a five-year-old.After her 1999 examination of defendant, Wertzel determined it was"highly unlikely" that defendant ever had the ability to comprehend orwaive Miranda rights. Wertzel described defendant as "sort of like achild, *** unsure of what is real and what is imagined, what is an actualmemory, what is told to them." Moreover, she stated that defendant doesnot tolerate stress very well and is "suggestible." Wertzel described morethan one instance where she was able to lead defendant in the questioningto get the response desired.

The uncontroverted testimony in this case demonstrates thatdefendant did not knowingly and intelligently waive her Miranda rights.No other conclusion is possible based on the evidence adduced at thesuppression hearing. Defendant was subjected to repeated interrogationthat was actually facilitated by her purported sister/guardian. Byrepeatedly taking defendant where they wanted, when they wanted, thepolice reinforced their authority and control over her. Defendantapparently had no prior experience with the criminal justice system. Shewas clearly a suspect by the time she took a polygraph test and wasthereafter questioned on June 25, 1993. The experts who testified wereunanimously of the opinion that defendant was incapable of understandingand waiving her Miranda rights. Aside from the State's testimonyregarding defendant's ambiguous nods, there was no evidence evensuggesting that defendant waived her rights. In fact, the minimal level ofcommunication between law enforcement officials and the defendantthroughout the investigation of this case is a matter of great concern to thiscourt and should have been to the officers involved, who proceeded torepeatedly question defendant despite her obvious impairment andvulnerability. We note that the degree of defendant's mental impairmentis comparable to that of the defendants in Bernasco and People v.Robinson, 301 Ill. App. 3d 634 (1998). In both cases, confessions weresuppressed. Bernasco, 138 Ill. 2d at 350-51; Robinson, 301 Ill. App. 3dat 643.

It has been said that "a system of criminal law enforcement whichcomes to depend on the 'confession' will, in the long run, be less reliableand more subject to abuses than a system which depends on extrinsicevidence independently secured through skillful investigation." Escobedov. Illinois, 378 U.S. 478, 488-89, 12 L. Ed. 2d 977, 985, 84 S. Ct.1758, 1764 (1964). Custodial interrogation trades on the weakness ofindividuals (Dickerson, 530 U.S. at 435, 147 L. Ed. 2d at 414, 120 S.Ct. at 2331, quoting Miranda, 384 U.S. at 455, 16 L. Ed. 2d at 712, 86S. Ct. at 1618); the young and mentally infirm are most vulnerable. Thepotential for abuse is obvious, as is the need for adequate safeguards. Webelieve this case amply demonstrates the point.

Both confessions defendant allegedly gave on June 25, 1993, weremade under circumstances custodial in nature. As defendant wasincapable of knowingly and intelligently waiving her Miranda rights, bothstatements should have been suppressed. We express no opinionregarding the admissibility of statements defendant may have made priorto that date. The State's argument on appeal concerns only defendant's"confession to the detectives." We, therefore, affirm the judgment of theappellate court insofar as we reverse and remand for further suppressionproceedings and a new discharge hearing. We modify the appellatecourt's judgment to the extent that we limit the scope of any furthersuppression proceedings to statements defendant may have made prior toJune 25, 1993.

Given our disposition, we need not reach the issue upon which theappellate court disposed of this case. We may affirm the result below onany basis that is supported by the record. People v. Huff, 195 Ill. 2d 87,91 (2001); In re Application of the Cook County Treasurer, 185 Ill. 2d428, 436 (1998).

For the reasons stated, we affirm the judgment of the appellate courtas modified and remand to the circuit court for further proceedingsconsistent with this opinion.

Affirmed as modified;

cause remanded.