NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except in the limited circumstances allowed under Rule 23(e)(1).
2021 IL App (3d) 200425-U
Order filed March 8, 2021 ____________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
THIRD DISTRICT
In re D.B., ) Appeal from the Circuit Court ) of the 14th Judicial Circuit, a Minor ) Henry County, Illinois, ) (The People of the State of Illinois, ) ) Petitioner-Appellee, ) Appeal No. 3-20-0425 ) Circuit No. 20-JD-2 v. ) ) D.B., ) Honorable ) Terence M. Patton, Respondent-Appellant). ) Judge, Presiding. ____________________________________________________________________________
JUSTICE DAUGHERITY delivered the judgment of the court. Presiding Justice McDade concurred in the judgment Justice Schmidt dissented, with opinion. _____________________________________________________________________
ORDER
¶1 Held: The circuit court erred in refusing to consider respondent’s motion to suppress his confession, which was raised during his discharge hearing, on the basis that it was untimely.
¶2 Following a discharge hearing, respondent, D.B., was found not not guilty of predatory
criminal sexual assault of a child and aggravated criminal sexual abuse. Respondent argues that the Henry County circuit court erred in refusing to consider his motion to suppress his
confession, which was made during his discharge hearing. Respondent alternatively argues that
his counsel was ineffective for failing to file a motion to suppress prior to the discharge hearing.
We reverse and remand with directions.
¶3 I. BACKGROUND
¶4 The State filed a petition for adjudication of wardship against respondent pursuant to
section 5-520 of the Juvenile Court Act of 1987 (705 ILCS 405/5-520 (West 2018)). In the
petition, the State alleged that respondent committed the offense of predatory criminal sexual
assault of a child (720 ILCS 5/11-1.40 (West 2018)) in that he placed his penis in the anus of a
minor victim. The petition also alleged that respondent committed the offense of aggravated
criminal sexual abuse (id. § 11-1.60(c)(1)(i)) in that he placed his penis on the same victim.
Respondent was 17 years old and the victim was 3 years old at the time of the alleged offenses.
¶5 Defense counsel filed a motion for a fitness evaluation alleging that she had a bona fide
doubt as to respondent’s fitness. The court ordered a fitness evaluation.
¶6 A fitness evaluation report was prepared by Dr. Joel Eckert. The report was dated March
19, 2020, and it was filed on May 27, 2020. Eckert found that respondent had a mild
developmental disability. His full-scale intelligence quotient (IQ) was 65. Eckert found that
respondent’s reading comprehension and receptive language skills were poorly developed.
Testing designed to show the level of verbal complexity respondent could understand revealed
that respondent had a receptive language age equivalent of 8 years and 11 months. Testing
designed to show respondent’s ability to read and comprehend paragraph-length material showed
that respondent had a receptive language age equivalent of 9 years and 6 months. The report also
discussed respondent’s family history. The report did not give an opinion as to fitness.
2 ¶7 The court ordered Eckert to render an opinion as to fitness. An addendum to the
psychological evaluation report was filed on June 6, 2020. In the addendum, Eckert opined that
respondent was unfit to stand trial and would not be restored to fitness within one year. Eckert
stated that respondent was incapable of providing meaningful assistance to his attorney.
Respondent’s identification, problem solving, and general abstract reasoning skills were
extremely limited.
¶8 The court found that respondent was unfit to stand trial and that there was a reasonable
probability that he would not be restored to fitness within one year.
¶9 A discharge hearing was held on August 21, 2020. Dennis M., the brother of the victim,
testified that he and respondent were playing video games in his bedroom. The victim was also
present. Dennis left the room to use the bathroom and talk to his parents. When he returned,
respondent had the victim on her stomach with her pants pulled down. Respondent was on top of
her. Dennis did not see respondent’s penis, but he saw respondent pull his pants up. Dennis told
respondent to get off the victim. Dennis drove respondent home. Respondent cried and told
Dennis that he was sorry for what he did. Respondent and Dennis never discussed exactly what
respondent did.
¶ 10 Detective Joe Bedford testified that he and Sergeant Josh Verscheure interviewed
respondent. Respondent’s mother was present during the interview. Bedford testified that
respondent appeared to have a developmental disability. Respondent’s mother told Bedford that
respondent functioned as a 13 year old or 15 year old. Bedford could tell when people with
cognitive disabilities did not understand a question. When that happened, he would rephrase the
question using simpler terms. Bedford had to use simpler terms with respondent several times.
Bedford could not tell when someone was only pretending to understand something. Bedford
3 read respondent the juvenile Miranda waiver. Respondent and his mother indicated that they
understood the Miranda waiver, and respondent’s mother signed a written waiver form.
¶ 11 The State asked Bedford what occurred during the interview, and defense counsel
objected. Counsel stated that respondent did not understand his Miranda warnings, and his
answers to Bedford’s questions should be inadmissible. Counsel stated that she had an expert
witness, Eckert, who could testify as a proffer that respondent did not understand his Miranda
warnings. The court asked if counsel had filed a motion to suppress prior to the discharge
hearing, and counsel said she had not. Counsel said that this was recent information and that she
could raise the issue at any time. Counsel explained that she spoke with Eckert earlier that week
in preparation for the discharge hearing, and Eckert said that he did not believe that respondent
had the capacity to knowingly waive his Miranda rights. The State argued that the suppression
issue should have been raised prior to the discharge hearing because defense counsel should have
known the basis for the suppression motion earlier based on Eckert’s reports.
¶ 12 The court overruled the objection. The court disagreed that a suppression motion could be
raised at any time. The court stated: “I believe it has to be raised before trial unless there is some
reason shown why it could not have been raised before trial.” The court found that defense
counsel had not shown a reason why she could not have raised the issue prior to the discharge
hearing. The court reasoned that respondent’s mental health issues were “not new” and that
Eckert’s evaluation “should have put the parties on notice that there may have been concerns or
arguably or allegedly concerns about the voluntariness of the statement.” Bedford proceeded to
testify about respondent’s statements during the interview.
¶ 13 The State moved to admit and publish a video and audio recording of respondent’s
interview. Defense counsel objected. Counsel asserted that the case People v. Flatt, 82 Ill. 2d 250
4 (1980), stood for the proposition that a motion to suppress could be made during a trial. The
court called a recess so that it could review Flatt.
¶ 14 When the proceedings resumed, the court overruled counsel’s objection to the admission
of the recording. The court stated that the motion to suppress was governed by section 114-11(g)
of the Code of Criminal Procedure of 1963 (Code) (725 ILCS 5/114-11(g) (West 2018)), which
stated that the motion shall be made before trial unless the opportunity did not exist or the
defendant was not aware of the grounds for the motion. The court reasoned:
“In this case, I found earlier and I continue to find and believe that the
opportunity to file a motion to suppress before trial did exist and that the defense
was aware or should have been aware of the grounds. [Respondent’s]
developmental disabilities. It’s something that’s probably been discussed for quite
some time now. The doctor’s report has been received for quite some time now. I
can only assume a copy of the video was produced in discovery. ***
So I continue to find that a motion to suppress now in the middle of trial is
not timely and I won’t consider a motion to suppress ***.”
¶ 15 The State published the recording of respondent’s interview. In the recording, Bedford
read respondent his juvenile Miranda rights. Bedford stopped several times and asked
respondent if he understood. Each time, respondent replied, “Yes.” Bedford asked respondent if
he wanted a lawyer “right now.” Respondent shook his head. Respondent’s mother said, “Your
dad’s gonna get you one.” She then looked at the officers and said, “But he’s not here.”
Verscheure said that respondent could ask for a lawyer at any time, and they would stop the
interview. Respondent’s mother asked, “That doesn’t mean he can walk out of here, right?”
Verscheure replied, “No, it just means that he doesn’t want to talk anymore.” Bedford then asked
5 respondent if he wanted to talk to him without a lawyer. Respondent nodded his head. Bedford
asked respondent if he could read and write in English. Respondent said, “Yeah.” Bedford asked
respondent if he had a hard time writing. Respondent said nothing. Bedford asked respondent if
he could write “really well.” Respondent said, “I think so.” Bedford then asked respondent’s
mother to sign the Miranda form.
¶ 16 Bedford asked respondent if he knew why he was there. Respondent said that he was
there because of “what [he] did to the little girl.” Respondent said that he was at Dennis’s house
in Dennis’s bedroom at the time of the incident. Dennis went downstairs. A few seconds after
Dennis left the room, respondent said that he pulled the victim’s pants down and placed his
“dick” in the victim’s “butt.” The victim was on her belly on the floor, and respondent was on
top of her.
¶ 17 Bedford asked respondent if he watched pornography on the internet. Respondent said he
watched pornography on his cell phone. Respondent said he did not search for child
pornography. Bedford asked respondent what he would say to the victim and her family if he
could tell them something. Respondent said he was sorry for what he did, he knew it was wrong,
and he would take it back if he could.
¶ 18 Physician’s Assistant Jordan Henry testified that he examined the victim in the
emergency room on the day of the incident. Henry testified that there was redness in the victim’s
vaginal region and a small laceration at the rim of the vaginal opening between the vaginal tissue
and perineal tissue. The victim’s hymen was widened, which was unusual for a patient the
victim’s age. There was no trauma to the anus. Henry testified that these observations were
“consistent with penetration.”
6 ¶ 19 Dr. Eckert testified that he was a licensed clinical psychologist, and the court qualified
him as an expert in the field of clinical psychology. After conducting a psychological evaluation
of respondent, Eckert determined that respondent had a full-scale IQ of 65. This put respondent
in the first percentile in relation to a normative group of random peers. Eckert explained, “In
other words, if you chose 100 random peers with 100 being the smartest and 1 being the least
cognitively capable, he would be number 1.”
¶ 20 Eckert testified that respondent knew that what he was accused of doing was wrong
because he would be severely punished for it. However, respondent’s “understanding of what he
did with regard to right and wrong would be very primitive in our eyes, very childlike.” Eckert
testified that respondent’s “ability to understand the criminality of his acts in more than a very,
very basic way is extremely limited.”
¶ 21 Eckert testified that developmentally disabled individuals often say that they understand
things they do not understand. They do not want to be viewed as “stupid” or “dumb” because
“they paid the price before for asking for clarification.” Eckert opined that respondent’s ability to
provide sophisticated information in an interview or interrogation would be limited.
Developmentally disabled people tended to tell an interviewer what they thought the interviewer
wanted to hear. Eckert believed that respondent repeated things without understanding them. One
would not necessarily know whether respondent understood something he was repeating.
¶ 22 Eckert testified that he did not believe that someone with a developmental disability at
respondent’s level “would have a clue as to what the disastrous potential ramifications would be
of waiving his Miranda rights. He wouldn’t even understand what Miranda rights are.” Eckert
believed that respondent understood that his attorney was trying to help him, but he did not
understand the duties of an attorney. Eckert noted that respondent had the receptive language
7 skills of a child who was 8 years and 11 months old and would have a similar understanding of a
child that age of things that were being spoken to him, like Miranda rights.
¶ 23 Eckert testified that he had not watched the recording of respondent’s interview with the
police, as he had not been asked to do so.
¶ 24 The parties gave closing arguments. Defense counsel argued that respondent was not
guilty by reason of insanity.
¶ 25 The circuit court found respondent not not guilty of the charged offenses. 1 The court
discussed Dennis’s and Henry’s testimony. The court noted that during respondent’s interview
with Bedford, respondent said several times that he put his penis in the victim’s “butt.” The court
reasoned that respondent’s penis likely did not actually enter the victim’s anus, as Henry did not
observe any trauma to the anus. However, the court found that respondent’s actions still met the
statutory definition of penetration. The court stated no one could know with certainty how much
of the interview that respondent understood. However, the court noted that respondent’s answers
to Bedford’s questions made sense and were responsive to the questions that had been asked,
which indicated that respondent understood the questions. The court noted that respondent said
that he looked at pornography, which indicated that he understood what a sexual act was.
¶ 26 The court found that respondent had not established by clear and convincing evidence
that he was not guilty by reason of insanity.
¶ 27 Defense counsel filed a motion to vacate the verdict and for a new hearing. The motion
argued that the circuit court erred in admitting respondent’s statements to the police because he
was unable to understand the nature of the Miranda warnings due to his cognitive limitations.
1 The court stated during its ruling that it had found respondent guilty but mentally ill. However, this was not a proper finding for a discharge hearing. See 725 ILCS 5/104-25 (West 2018). The court clarified at a subsequent hearing that it had found respondent not not guilty. 8 Counsel also alleged that she was unable to file a motion to suppress respondent’s statements due
to the finding of unfitness.
¶ 28 The court denied the motion. The court found that counsel was not prevented from filing
a motion to suppress due to the finding of unfitness. The court further found that the motion
could have and should have been presented prior to the discharge hearing because the finding of
fitness was made approximately two months prior to the discharge hearing. The court further
stated: “[E]ven if a motion to suppress had been filed, I don’t believe that that would have been
granted anyway. So I don’t find any prejudice.” The court acknowledged that defense counsel
may not have been able to ask Eckert “her full line of questioning” at the discharge hearing but
noted that Eckert rendered opinions on respondent’s understanding of his Miranda warnings.
The court stated that it formed its own opinion based on Eckert’s testimony and the recording of
the interview. The court found that respondent appeared to understand all the questions, and his
answers were responsive to the questions that were asked. The court also noted that the officers
used a conversational tone of voice, and respondent’s mother was present.
¶ 29 II. ANALYSIS
¶ 30 Respondent argues that the circuit court erred in not affording defense counsel an
opportunity to argue for the suppression of his confession pursuant to section 114-11(g) of the
Code (725 ILCS 5/114-11(g) (West 2018)) during the discharge hearing. The State contends that
the court properly declined to consider the motion because it was untimely under section 114-
11(g). We find that respondent’s suppression motion was not untimely under section 114-11(g),
and the court erred in refusing to consider it.
¶ 31 Initially, the parties disagree as to the standard of review. Respondent asserts that the
question of whether his incriminating statement was voluntary is subject to de novo review. See
9 People v. Moore, 368 Ill. App. 3d 549, 553 (2006). The State asserts that the abuse of discretion
standard applies to the issue of whether the circuit court erred in declining to grant respondent a
hearing on his motion to suppress. Because the issue before us concerns the circuit court’s
refusal to consider the motion to suppress on the basis that it was untimely rather than a
substantive ruling on the voluntariness of respondent’s statements, we agree with the State that
the abuse of discretion standard applies. See People v. Prince, 362 Ill. App. 3d 762, 775 (2005).
¶ 32 We turn to respondent’s substantive argument that the circuit court erred in refusing to
afford defense counsel an opportunity to argue for suppression of respondent’s confession under
section 114-11(g) of the Code (725 ILCS 5/114-11(g) (West 2018)). Section 114-11(a) of the
Code (id. § 114-11(a)) provides that “[p]rior to the trial of any criminal case a defendant may
move to suppress as evidence any confession given by him on the ground that it was not
voluntary.” Section 114-11(g) provides that such a motion “shall be made before trial unless
opportunity therefor did not exist or the defendant was not aware of the grounds for the motion.”
Id. § 114-11(g).
¶ 33 A discharge hearing under section 104-25 of the Code (id. § 104-25) is not a criminal
trial. People v. Waid, 221 Ill. 2d 464, 470 (2006). Rather, it is civil in nature. Id. The purpose of
a discharge hearing is to determine the sufficiency of the evidence against an individual who has
been accused of a crime but has been found unfit to stand trial. 725 ILCS 5/104-25(a) (West
2018). If the accused is not acquitted, he or she is remanded to the custody of the Department of
Human Services for treatment for a specified period of time. Id. § 104-25(d). If, at the end of the
treatment period, the circuit court finds that the accused has become fit or can be rendered fit, the
court may proceed with trial. Id. § 104-25(g)(1). If the accused remains unfit, the court may
conduct proceedings to determine if the accused is subject to involuntary civil commitment. Id.
10 § 104-25(g)(2). The provision for discharge hearings in section 104-25 of the Code also applies
to proceedings brought under the Juvenile Court Act of 1987 (705 ILCS 405/1 et seq. (West
2018)), as in the instant case. In re S.B., 2012 IL 112204, ¶ 21.
¶ 34 Although not cited by the parties either in the circuit court or on appeal, this court has
directly addressed the applicability of section 114-11(g) of the Code (725 ILCS 5/114-11 (West
2018)) to discharge hearings in its decision in People v. Fuhrman, 233 Ill. App. 3d 503 (1992).
The Fuhrman court held that the defendant’s motion to suppress, which was made during a
discharge hearing, was timely under section 114-11(g) of the Code because a discharge hearing
is held before the commencement of a criminal trial. Id. at 506. The court reasoned:
“Section 114-11 clearly requires that a motion to suppress must be made prior to
a trial. As the State points out in its brief, there are similarities between a trial and
a discharge hearing. However, we note that, depending upon the result of the
discharge hearing, [the defendant] may later be subjected to a trial for whatever
crime he was charged with. [Citation.] We therefore interpret section 114-11 to
mean that a discharge hearing is not the same procedure as a trial. [Citation.]
Accordingly, [the defendant’s] motion to suppress was made prior to trial as
required by the statute.” (Emphasis in original.) Id. at 506-07.
¶ 35 The Fuhrman court went on to hold that, under the circumstances of the case, the circuit
court erred in refusing to allow a suppression hearing. Id. at 507. The Fuhrman court noted that
the State did not object to holding a suppression hearing. Id. The court found that holding a
suppression hearing would not have caused prejudice or inconvenience to the State because the
witnesses that were needed to testify were present at the discharge hearing. Id. The Fuhrman
11 court further found that not holding a suppression hearing caused great prejudice to the
defendant. Id.
¶ 36 In the instant case, as in Fuhrman, the circuit court erred in refusing to consider
respondent’s motion to suppress on the basis that it was untimely under section 114-11(g) of the
Code. Respondent’s motion to suppress was not untimely under section 114-11(g) because it was
made during a discharge hearing, which is a proceeding that occurs prior to a criminal trial. See
id. at 506. Significantly, the circuit court’s finding that the motion was untimely under section
114-11(g) was its sole basis for declining to consider the motion. We note that the court
repeatedly and erroneously referred to the proceeding as a “trial” rather than a “discharge
hearing” in declining to consider the motion to suppress.
¶ 37 We acknowledge that, unlike in Fuhrman, the State objected to the suppression motion
on the basis of timeliness. However, the prejudice and inconvenience the State would have
suffered by holding a suppression hearing would have been minimal, as Dr. Eckert was present
to testify at the discharge hearing. Meanwhile, respondent was prejudiced by the court’ s refusal
to consider whether he validly waived his Miranda rights before confessing to the offense.
¶ 38 We reject the State’s argument that, even if the court erred in admitting respondent’s
confession into evidence, the admission of the confession was harmless beyond a reasonable
doubt. “In determining whether a constitutional error is harmless, the test to be applied is
whether it appears beyond a reasonable doubt that the error at issue did not contribute to the
verdict obtained.” People v. Patterson, 217 Ill. 2d 407, 428 (2005). Our supreme court has
identified three approaches for measuring error under this test: “(1) focusing on the error to
determine whether it might have contributed to the conviction, (2) examining the other evidence
in the case to see if overwhelming evidence supports the conviction, and (3) determining whether
12 the improperly admitted evidence is merely cumulative or duplicates properly admitted
evidence.” Id.
¶ 39 In the instant case, it is clear that the circuit court’s consideration of the confession
contributed to its finding of not not guilty. The court referred to the confession several times in
delivering its ruling. The remaining evidence in the case was not overwhelming. Dennis testified
that he saw the victim lying on her stomach with her pants pulled down with respondent on top
of her. Dennis then saw respondent pull up his pants. Dennis did not see exactly what happened,
and he and respondent did not discuss what exactly respondent had done. A medical examination
of the victim revealed findings consistent with penetration, including redness in the vaginal area,
a small tear on the vagina, and a widened hymen. However, respondent’s confession was the
most detailed account of the incident. The confession was not duplicative of the other evidence
admitted, as no other evidence directly showed that respondent’s penis made contact with the
victim’s anus. Under these circumstances, we do not find that the potentially erroneous
admission of the confession was harmless beyond a reasonable doubt.
¶ 40 Both parties make extensive arguments on appeal concerning the voluntariness of
respondent’s confession. We make no finding as to whether the confession was voluntary or as to
whether respondent validly waived his Miranda rights, as this issue was never ruled upon in the
circuit court. We acknowledge that the circuit court indicated at the hearing on respondent’s
motion to vacate the verdict that it would have likely denied a motion to suppress if one had been
filed. However, the court also acknowledged that defense counsel may not have been able to
question Dr. Eckert on the issue to the extent that she wanted to.
¶ 41 We find that the appropriate remedy in this case is to remand the matter for a suppression
hearing. See Fuhrman, 233 Ill. App. 3d at 507. This will afford the circuit court the opportunity
13 to definitively rule on the motion to suppress after respondent has fully presented the evidence in
support of the motion. If the court grants the motion to suppress, a new discharge hearing should
be held. See People v. Braggs, 302 Ill. App. 3d 602, 606-07 (1998). In light of our holding, we
need not address respondent’s alternative argument that he received ineffective assistance of
counsel.
¶ 42 III. CONCLUSION
¶ 43 The judgment of the circuit court of Henry County is reversed. The matter is remanded to
the circuit court for a hearing on respondent’s motion to suppress. If, following the hearing, the
circuit court denies the motion, it shall reinstate its finding of not not guilty. If the circuit court
grants the motion, it shall vacate its finding of not not guilty and hold a new discharge hearing.
See People v. King, 61 Ill. 2d 326, 330 (1975); Braggs, 302 Ill. App. 3d at 606-07.
¶ 44 Reversed and remanded with directions.
¶ 45 JUSTICE SCHMIDT, dissenting:
¶ 46 The majority reverses and remands the cause for a hearing on the motion to suppress
respondent’s confession. The evidence is overwhelming. Any error in denying the motion to
suppress evidence is harmless beyond a reasonable doubt. See People v. Patterson, 217 Ill. 2d 407,
428 (2005).
¶ 47 Here, a witness observed the incident. Dennis saw the victim lying on her stomach with
her pants down. He saw respondent on top of her. He did not see respondent’s penis, but he saw
respondent pull up his pants. Despite seeing respondent on top of the victim with their pants down,
Dennis did not see what respondent did to the victim. However, the medical examination
confirmed the obvious: it revealed findings consistent with penetration. Respondent’s confession
only served to confirm what Dennis observed and the medical examination revealed. The result of
14 the proceeding would not have changed had respondent’s confession been suppressed. See People
v. Nevitt, 135 Ill. 2d 423, 447 (1990) (evidentiary error is harmless “where there is no reasonable
probability that the [trier of fact] would have acquitted the [respondent] absent the” error).
¶ 48 We should affirm.