NOTICE 2014 IL App (5th) 130288 Decision filed 06/06/14. The text of this decision may be NO. 5-13-0288 changed or corrected prior to the filing of a Petition for Rehearing or the disposition of IN THE the same.
APPELLATE COURT OF ILLINOIS
FIFTH DISTRICT ________________________________________________________________________
THE PEOPLE OF THE STATE OF ILLIINOIS, ) Appeal from the ) Circuit Court of Plaintiff-Appellant, ) Washington County. ) v. ) No. 12-CF-72 ) ROSS D. FOLLIS, JR., ) Honorable ) Daniel J. Emge, Defendant-Appellee. ) Judge, presiding. ________________________________________________________________________
JUSTICE GOLDENHERSH delivered the judgment of the court, with opinion. Justices Chapman and Cates concurred in the judgment and opinion.
OPINION
¶1 The State appeals from an order of the circuit court of Washington County
granting the motion to suppress filed by defendant, Ross D. Follis, Jr. The issue raised in
this appeal is whether the trial court erred in concluding that defendant was in custody at
the time of the interview. We affirm.
¶2 FACTS
¶3 Defendant, age 18, was charged by information with one count of predatory
criminal sexual assault of a child (720 ILCS 5/11-1.40(a)(1) (West 2010)) for allegedly
committing an act of sexual penetration on the victim who was three years of age by
1 inserting his finger in the victim's vagina. He was also charged with one count of
aggravated criminal sexual abuse (720 ILCS 5/11-1.60(c)(1)(i) (West 2010)) for
allegedly committing an act of sexual conduct with the same victim by knowingly
touching the victim's vagina with his fingers. Defendant filed a motion to suppress his
confession. The State filed a response, arguing (1) defendant was not in custody, and (2)
even if defendant was in custody, his confession was knowing and voluntary.
¶4 A hearing was held on the motion to suppress during which Brock Styninger, a
Nashville police officer, testified that he spoke briefly to defendant's father on December
6, 2012, and told him there was an allegation of sexual assault against defendant. A
month earlier, the police asked defendant to leave his home so that the Department of
Children and Family Services (Department) could conduct an interview about allegations
of sexual abuse made by the victim. On December 6, defendant's father said defendant
was not home, but was out walking the dog. Styninger and another officer, Officer Reel,
left, but came back 10 to 15 minutes later, at which time defendant was available.
Defendant told the police that he initially saw the squad car pull up to his house and he
ran away, but upon reflection he realized it was better to come back and talk to the police.
The officers asked defendant to come to the police station for questioning. Defendant
agreed by telling the police, "[L]et's just get this shit over with."
¶5 According to Styninger, defendant was not in custody and was never told he was
under arrest. Defendant was not handcuffed, but he did ride in the back of a patrol car to
the station. Defendant was allowed to smoke a cigarette before he was interviewed, was
allowed to use the restroom, was given a drink of water, and was given a cigarette break 2 during the interview. The interview was videotaped, but there are audio problems with
the videotape.
¶6 Even though the police officers said defendant was not in custody, Styninger read
defendant his Miranda rights (Miranda v. Arizona, 384 U.S. 436 (1966)) from a police
department-issued form. Defendant nodded his head a few times, which Styninger
interpreted as meaning that defendant understood his rights. Defendant initialed the
individual paragraphs and signed the form. The interview was conducted in a room
approximately 10 by 12 feet with the door closed, except when Officer Reel would
occasionally leave.
¶7 The alleged victim was his father's girlfriend's daughter. During the interview,
defendant admitted that he touched the victim's vagina and the victim touched his penis.
Defendant never admitted inserting a finger or anything inside the victim. Defendant
agreed to make a statement. Defendant told Styninger what occurred and Styninger
wrote it down. Defendant then signed the paper. Styninger testified that he never told
defendant he was under arrest, but did tell defendant "multiple times" that he could go
home that day. Defendant asked the police officers after making the statement whether
he needed a lawyer. Styninger responded that was up to defendant.
¶8 On cross-examination, Styninger admitted the interview with defendant lasted 1
hour and 40 minutes and Styninger did not start writing a statement until 1 hour and 12
minutes into the videotaped interview. Defendant told the officers he dropped out of high
school in the tenth grade. Styninger did not know if defendant could read and admitted
that he never asked defendant if he knew what the word "waived" means. Styninger 3 further admitted that another officer said to defendant when they were trying to elicit a
statement from defendant: "[Y]ou know, we are dudes–we think about sex all the time.
You get sexual drives, you get urges, that doesn't make you a bad guy." The police also
told defendant to come clean and all will be forgotten. Styninger admitted that they were
made aware of alleged sexual misconduct by defendant through the Department, but the
police were unaware when the alleged misconduct took place.
¶9 Officer Reel testified that the interview began by the officers "building rapport"
with defendant. He said defendant initially denied the allegations, but later admitted
touching the victim using three fingers. Reel testified he did not promise defendant
anything, and defendant was allowed to go home after the interview. Officer Reel
admitted he did not hear Styninger tell defendant the interview was being recorded. Reel
said he was not present when Styninger wrote defendant's statement. Reel said defendant
was not specific as to times or dates when the alleged incident occurred and that
defendant indicated some of the incidents occurred when he was babysitting the victim.
Reel said that "towards the end of the interview" and before defendant signed the written
statement, defendant asked if he needed an attorney.
¶ 10 On cross-examination, Reel admitted that he was wearing a badge and had a
weapon when he picked up defendant. The officers were not wearing uniforms, but were
in a squad car. Reel admitted he has a three-year-old daughter, and he was
uncomfortable making some of the statements he made to defendant about how grown
men get off touching three-year-old girls. Reel admitted that because the victim was only
three years old, the police did not have many specifics about what occurred and they had 4 to try to fish around and figure out what occurred as they were interviewing defendant.
Initially, defendant denied everything and said he only touched the victim with toilet
paper, but after about 1 hour and 10 minutes, Reel could tell defendant had enough and
he confessed that he stuck three fingers in the victim's vagina as the police alleged.
¶ 11 After the hearing, the trial court found that the interview was custodial for
purposes of Miranda and that the State made a prima facie showing that defendant
knowingly, intelligently, and voluntarily waived his Miranda rights so that the "burden
now shifts to [defendant] to show that his waiver was not knowing, intelligent, or
voluntary." Thus, the trial court denied defendant's motion for a directed verdict and
continued the hearing for defendant to establish that the Miranda waiver was not
knowing, intelligent, or voluntary.
¶ 12 Defendant then underwent two psychological evaluations, one by an expert for the
State, Dr. John Raybun, and one by defendant's expert, Dr. Daniel Cuneo, to determine
defendant's intellectual functioning and the voluntariness of the confession. On May 15,
2013, the parties appeared again on the motion to suppress. No additional testimony was
taken. The parties stipulated to the contents of the two psychological reports.
¶ 13 Dr. Cuneo reported that defendant functions in the mild mentally retarded range
with a verbal IQ of 70, performance IQ of 60, and full-scale IQ of 63. Dr. Cuneo
reported that defendant scored in the bottom 1% intellectually and that defendant's
overall cognitive abilities are that of a 10-year-old. He also noted that defendant reads at
only a 2.8 grade level and that he could not read simple words such as "felt" or "split."
He noted that defendant's memory, both short and long term, was impaired and that while 5 in school defendant was diagnosed with depression and attention deficit hyperactivity
disorder (ADHD) and had been placed on psychotropic medication. Defendant's school
records also showed that defendant has an extremely low frustration tolerance level and
will quickly become angry with even a minimum amount of stress. Ultimately, Dr.
Cuneo found that defendant's mental illness "significantly negatively impacted his ability
to knowingly, intelligently and willingly waive his Miranda Rights on December 6,
2012."
¶ 14 Dr. Rabun also concluded that defendant suffers from mild mental retardation and
ADHD and specifically stated that defendant "displays deficits in cognition, in particular
staying on topic, suggesting a component of brain damage and poor attention span, a
finding consistent with a mental defect." In his opinion, defendant's impaired intellectual
capacity qualifies as a mental defect. While Dr. Rabun found that defendant had the
ability to read his Miranda rights, he nevertheless concluded that due to the stressful
nature of the situation on December 6, 2012, defendant's limited intellectual capacity, and
defendant's poor attention span, defendant "lacked the capacity to knowingly,
intelligently, and voluntarily waive his Miranda rights."
¶ 15 The trial court entered a thoughtful and well-reasoned nine-page order in which it
granted defendant's motion to suppress, specifically stating as follows:
"The [c]ourt finds that because of the [d]efendant's level of intelligence and mental
impairments at the time of the interrogation coupled with the circumstances
regarding the interrogation as previously discussed, that the [d]efendant did not
knowingly, intelligently, and voluntarily waive his Miranda rights, and thus his 6 confession and other incriminatory statements were not voluntarily made.
Accordingly, the [d]efendant's confession, as well as any other incriminatory
statements made during the December 6, 2012, interrogation at the Nashville
Police Department, must be suppressed, along with any testimony, written
documents, or video recordings concerning said confession and other
incriminatory statements."
¶ 16 The State filed a notice of impairment and a timely notice of appeal.
¶ 17 ANALYSIS
¶ 18 The issue raised by the State on appeal is whether the trial court erred in
concluding that defendant was in custody at the time of the interview. The State contends
that a reasonable person in defendant's position would not have believed he was in
custody; therefore, the trial court erred in concluding that the interview was custodial and
its decision must be reversed. The State argues that the police were unaware of
defendant's mild mental retardation and, therefore, it is not a factor to be considered. The
State also insists that the questioning was relaxed, defendant was never told he was under
arrest, and a reasonable person innocent of any crime would have felt free to leave. We
disagree.
¶ 19 We begin by pointing out that a trial court's ruling on a motion to suppress
presents mixed questions of fact and law. People v. Gherna, 203 Ill. 2d 165, 175, 784
N.E.2d 799, 805 (2003). We give deference to the trial court's factual findings and
reverse only if they are against the manifest weight of the evidence. People v. Braggs,
209 Ill. 2d 492, 505, 810 N.E.2d 472, 481 (2003). However, the ultimate question of 7 whether suppression is warranted is reviewed de novo. Gherna, 203 Ill. 2d at 175, 784
N.E.2d at 805.
¶ 20 "Under Miranda, a statement taken from a defendant is inadmissible in the State's
case unless the State demonstrates, by a preponderance of the evidence, that the
defendant was first given Miranda warnings and that the defendant made a knowing and
intelligent waiver of his or her privilege against self-incrimination." People v. Dennis,
373 Ill. App. 3d 30, 42, 866 N.E.2d 1264, 1275 (2007). The police only have to supply
Miranda warnings if the defendant is under "custodial interrogation," which means
"questioning initiated by law enforcement officers after a person has been taken into
custody or otherwise deprived of his freedom of action in any significant way." Miranda,
384 U.S. at 444. In Braggs, our Illinois Supreme Court explained as follows:
"The determination of whether a defendant is 'in custody' for Miranda
purposes involves '[t]wo discrete inquiries ***: first, what were the circumstances
surrounding the interrogation; and second, given those circumstances, would a
reasonable person have felt he or she was not at liberty to terminate the
interrogation and leave.' [Citations.] Thus, in determining whether a person is 'in
custody' for purposes of Miranda, a court should first ascertain and examine the
circumstances surrounding the interrogation, and then ask if, given those
circumstances, a reasonable person would have felt he or she was not at liberty to
terminate the interrogation and leave." Braggs, 209 Ill. 2d at 505-06, 810 N.E.2d
at 481.
8 ¶ 21 The determination of whether a defendant is under custodial interrogation focuses
"primarily upon the perceptions of the suspect, rather than the intent of the police."
Rhode Island v. Innis, 446 U.S. 291, 301 (1980).
¶ 22 Whether an interrogation is custodial is determined by (1) the totality of the
circumstances and (2) how a reasonable person would perceive the situation. People v.
Fletcher, 328 Ill. App. 3d 1062, 1073, 768 N.E.2d 72, 81 (2002). The following factors
are relevant in determining whether a statement was made in a custodial setting: (1) the
location, time, length, mood, and mode of the interrogation, (2) the number of police
officers present, (3) the presence or absence of family and friends of the accused, (4) any
indicia of formal arrest, and (5) the age, intelligence, and mental makeup of the accused.
Braggs, 209 Ill. 2d at 506, 810 N.E.2d at 482; People v. Lucas, 132 Ill. 2d 399, 417, 548
N.E.2d 1003, 1009 (1989); Fletcher, 328 Ill. App. 3d at 1073, 768 N.E.2d at 81.
¶ 23 In the instant case, the police escorted defendant out of his home approximately
one month prior to his interview so the Department could investigate a tip about possible
sexual abuse. Therefore, defendant was aware that there were serious allegations against
him. On December 6, 2012, two police officers picked up defendant at his home. While
the police were not in uniform, they wore badges and were armed. Defendant saw the
officers arrive at his home, but initially fled. When the police came back 10 or 15
minutes later defendant was present and said, "[L]et's just get this shit over with."
Defendant was only 18 years of age and was not accompanied by any family members or
friends to the police station.
9 ¶ 24 The officers placed defendant in the back of a squad car and took him to the
Nashville police station where he was read Miranda warnings from a department-issued
form and asked to initial each paragraph and sign the statement. He was then questioned
in a small room equipped with recording devices. He was questioned for 1 hour and 40
minutes. As the trial court noted in its order, the officers asked "very leading and
suggestive questions" and "were seeking a confession from the [d]efendant." Defendant
is in the mildly mentally retarded range and the bottom 1% of the population
intellectually. He suffers from ADHD as well as depression. The trial court aptly noted
that while such interrogation techniques may not affect the responses of a suspect with a
normal level of intelligence and no mental impairment, the circumstances of this
interrogation must be considered as to how they affected this particular defendant.
¶ 25 With regard to the mentally challenged and questions of custody, our Illinois
Supreme Court has specifically stated: "Just as they are more susceptible to police
coercion during a custodial interrogation, the mentally retarded are also more susceptible
to the impression that they are, in fact, in custody in the first instance." Braggs, 209 Ill.
2d at 511, 810 N.E.2d at 484. Such is the situation in the instant case. Applying the
factors set forth in Braggs to the facts of the instant case, it is clear that a reasonable
person in defendant's position and innocent of any crime would not have felt free to leave
the interrogation.
¶ 26 The State cites to Yarborough v. Alvarado, 541 U.S. 652 (2004), in support of its
position that defendant's mild mental retardation and ADHD have no application to the
determination of whether defendant was in custody. In Yarborough, the United States 10 Supreme Court found that the circumstances surrounding the 17-year-old suspect's
questioning must be considered first and that, given those circumstances, the court must
determine whether a reasonable person felt that '' 'he or she was not at liberty to terminate
the interrogation and leave.' " Yarborough, 541 U.S. at 663 (quoting Thompson v.
Keohane, 516 U.S. 99, 112 (1995)). Yarborough points to an objective "in custody" test,
which does not involve the individual idiosyncrasies of the person, such as age or prior
experience with police. Yarborough, 541 U.S. at 666-67. Yarborough, however, is
distinguishable from the instant case because it did not involve a suspect who was
mentally retarded, as was defendant in the instant case. Moreover, we point out that after
Yarborough was decided, our own Illinois Supreme Court continued to rely on the
Braggs factors, even expanding the list, in determining if a suspect is "in custody."
People v. Slater, 228 Ill. 2d 137, 150, 886 N.E.2d 986, 995 (2008).
¶ 27 Considering the totality of the circumstances in the instant case, there is simply no
basis for us to conclude that the trial court's order granting defendant's motion to suppress
was manifestly erroneous. Defendant was aware he was being investigated by the
Department of sexually abusing his father's girlfriend's daughter and was removed from
his home by the police a month earlier so the Department could investigate. He
witnessed the police come to his home twice on the date in question. He was taken by
squad car to the police station by armed police officers. No family members were
present. He was barely an adult, and it is well established in the record that defendant
suffers from diminished mental capacity. The police were aware defendant dropped out
of high school in the tenth grade. The police interviewed defendant in a small room with 11 the door shut for over an hour before defendant made any incriminating statements. The
interrogation even made one of the police officers uneasy due to the nature of the
questioning and the tactics that were used.
¶ 28 Under these circumstances, we find the trial court did not err in finding that
defendant was in custody during the interrogation by police on December 6, 2012. Both
experts who examined defendant concluded that defendant could not knowingly,
intelligently, and voluntarily waive his Miranda rights. It is abundantly clear from the
record before us that the defendant in this case did not knowingly and intelligently waive
his Miranda rights. The State does not even attempt to argue to the contrary here.
¶ 29 Accordingly, we hereby affirm the order of the circuit court of Washington
County which found defendant was in custody at the time of the interrogation and granted
defendant's motion to suppress.
¶ 30 Affirmed.
12 2014 IL App (5th) 130288
NO. 5-13-0288
IN THE
FIFTH DISTRICT
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the ) Circuit Court of Plaintiff-Appellant, ) Washington County. ) v. ) No. 12-CF-72 ) ROSS D. FOLLIS, JR., ) Honorable ) Daniel J. Emge, Defendant-Appellee. ) Judge, presiding. ______________________________________________________________________________
Opinion Filed: June 6, 2014 ______________________________________________________________________________
Justices: Honorable Richard P. Goldenhersh, J.
Honorable Melissa A. Chapman, J., and Honorable Judy L. Cates, J., Concur ______________________________________________________________________________
Attorneys Hon. Heath Hooks, State's Attorney, Washington County Judicial Center, for 125 East Elm Street, Nashville, IL 62263, Patrick Delfino, Director, Appellant Stephen E. Norris, Deputy Director, Sharon Shanahan, Staff Attorney, Office of the State's Attorneys Appellate Prosecutor, 730 East Illinois Highway 15, Suite 2, P.O. Box 2249, Mt. Vernon, IL 62864 ______________________________________________________________________________
Attorneys Michael J. Pelletier, State Appellate Defender, Ellen J. Curry, Deputy for Defender, Amanda R. Horner, Assistant Appellate Defender, Office of the Appellee State Appellate Defender, Fifth Judicial District, 909 Water Tower Circle, Mt. Vernon, IL 62864 ______________________________________________________________________________