                          Illinois Official Reports

                                  Supreme Court



                              In re D.L.H., 2015 IL 117341




Caption in Supreme   In re D.L.H., JR., a Minor (The People of the State of Illinois,
Court:               Appellant, v. D.L.H., Jr., Appellee).



Docket No.           117341



Filed                May 21, 2015



Decision Under       Appeal from the Appellate Court for the Fifth District; heard in that
Review               court on appeal from the Circuit Court of St. Clair County, the Hon.
                     Walter C. Brandon, Judge, presiding.



Judgment             Affirmed in part and reversed in part.
                     Cause remanded.


Counsel on           Lisa Madigan, Attorney General, of Springfield, and Brendan Kelly,
Appeal               State’s Attorney, of Belleville (Carolyn E. Shapiro, Solicitor General,
                     and Michael M. Glick and Brian McLeish, Assistant Attorneys
                     General, of Chicago, and Patrick Delfino, Stephen E. Norris and
                     Jennifer Camden, of the Office of the State’s Attorneys Appellate
                     Prosecutor, of Mt. Vernon, of counsel), for the People.

                     Bill T. Walker, of Granite City, and James E. Parrot, of St. Louis,
                     Missouri, for appellee.
     Justices                  JUSTICE THEIS delivered the judgment of the court, with opinion.
                               Chief Justice Garman and Justices Thomas, Kilbride, and Karmeier
                               concurred in the judgment and opinion.
                               Justice Burke specially concurred, with opinion, joined by Justice
                               Freeman.



                                                OPINION

¶1         On August 28, 2012, the State filed a petition for adjudication of wardship in St. Clair
       County alleging that respondent, D.L.H., Jr., had committed first degree murder (720 ILCS
       5/9-1(a)(2) (West 2012)). At the time, respondent was just 9 years old, and the victim was 14
       months old. The circuit court found respondent unfit to stand trial, and in a subsequent
       discharge hearing found respondent “not not guilty” of murder. The trial court remanded
       respondent to the Department of Human Services (DHS) for fitness restoration education, so
       that respondent may become fit and ultimately be tried for murder.
¶2         On appeal, respondent argued, in relevant part, that the circuit court erred in denying his
       suppression motion and, as a result, statements he made to police were improperly admitted at
       his discharge hearing. The appellate court agreed with respondent and reversed and remanded
       for further proceedings. 2013 IL App (5th) 130341-U. We allowed the State’s petition for
       leave to appeal. Ill. S. Ct. R. 315 (eff. July 1, 2013).
¶3         For the reasons that follow, we affirm in part and reverse in part the judgment of the
       appellate court, and remand to that court for further review.

¶4                                           BACKGROUND
¶5          At the time of the events giving rise to the State’s petition, respondent lived in Cahokia,
       Illinois, with his father, David H., Sr., and David’s girlfriend, Melissa W. 1 Also residing with
       David and Melissa were Daveon, their 9-month-old son, and Drequon (Dre), Melissa’s
       11-year-old son. The family had moved to Illinois in May 2012 from the St. Louis, Missouri,
       area. In addition to David, Melissa and the three children, the Cahokia household included
       Melissa’s cousin, Alisha J., and Alisha’s three sons: 3-year-old Todd, 2-year-old Tymerian,
       and the 14-month-old victim, T.W.
¶6          According to evidence received at the discharge hearing, in the early morning hours of
       August 23, 2012, emergency services were summoned to the Cahokia residence. Thereafter,
       T.W. was admitted to Cardinal Glennon Children’s Hospital in St. Louis, Missouri, where he
       died on August 26, 2012, after being removed from life support. The cause of death was
       “closed head injury.” Two days later, the State filed its petition for adjudication of wardship.
       According to the petition, respondent “repeatedly struck T.W. *** about the head, knowing
       such acts created a strong probability of death or great bodily harm.”
¶7          The trial court appointed counsel for respondent and ordered a psychological evaluation of
       respondent to determine his fitness for trial. See 705 ILCS 405/5-505(1)(j) (West 2012); 725

           1
            Respondent’s mother died when he was three years old.

                                                   -2-
       ILCS 5/104-11(a) (West 2012). That evaluation was performed on August 31, 2012, by Dr.
       Daniel Cuneo, a clinical psychologist. Dr. Cuneo’s written report states that respondent was
       “functioning in the Borderline Mentally Retarded Range of Intelligence,” with a full scale IQ
       of 78. Respondent scored extremely low on a test measuring his general range of information.
       For example, respondent “did not know how many days were in a week or how many hours
       were in a day. Nor did he know how many things were in a dozen.” Respondent was in the
       bottom 5% of the nation intellectually. Dr. Cuneo’s report also noted that respondent’s
       memory, both short term and long term, was impaired.
¶8         Dr. Cuneo opined that respondent was unfit for trial, and even if provided with a course of
       inpatient psychiatric treatment, “there [was] not a substantial probability that he would be able
       to attain fitness in one year.” Dr. Cuneo explained:
                “[Respondent]’s age and subsequent cognitive and developmental immaturity coupled
                with his Borderline Intellectual Functioning substantially impair his ability to
                understand the nature and purpose of the proceedings and his ability to assist in his own
                defense. [Respondent] is only nine years old. His cognitive abilities are only at the
                seven to eight year old level. His thinking is very concrete. He could not grasp the
                adversarial roles in the court even after I broke them down into simpler term[s]. He
                kept insisting his ‘daddy would help him in court’ and could not understand the role of
                a defense attorney. He could not comprehend that there would be a state’s attorney who
                would attempt to convict him. Due to his age and limited intellectual abilities he could
                not meaningfully cooperate with his attorney, much less assist in his own defense. He
                could not grasp how a person was found innocent or guilty.”
¶9         Dr. Cuneo also diagnosed respondent as suffering from dysthymic disorder (depression)
       and stated that respondent would benefit from inpatient psychiatric hospitalization and
       possibly antidepressant medication. Dr. Cuneo noted that records from the Missouri
       Department of Social Services, Children’s Division (Children’s Division), disclosed that three
       hotline calls had been made by respondent’s teachers in 2011 and 2012 after respondent
       arrived at school with suspicious injuries (scratches on his face, bruises on his right forearm,
       and a bruised cheek and small cut on his lip). Dr. Cuneo quoted the Missouri report:
       “Children’s Division is unsure exactly what it [sic] going on that is causing [respondent] to
       have these suspicious injuries, but it seems that [respondent] is the target child.” The
       Children’s Division’s report also noted that Melissa would discipline respondent by hitting
       him with a belt. Dr. Cuneo stated in his report:
               “It is uncertain how much of [respondent’s] anger and depression stems from his
               mother’s death, his possible scapegoating at home as the Missouri Children’s Division
               speculated, the possible domestic violence in the home, or his possible physical abuse
               at home as suggested by the three incidents that led the Missouri[ ] Children’s Division
               to refer this family [for services]. These issues could best be addressed in an inpatient
               setting.”
¶ 10       At the fitness hearing conducted in October 2012, Dr. Cuneo testified consistent with his
       written report, and explained what the term “scapegoating” means:
               “What it means to me, is that many times in the family there’s an individual that is the
               victim, that that’s the individual that everybody is—that all the difficulties are blamed
               for.


                                                   -3-
                    And in this particular case, this was the individual who had repeated incidents that
                were called in to the hotline. And while no specific one ever—there was always
                excuses for each one, but because of the numbers and the weight and the lack of
                concern after the calls to the school, the Children’s Division indicated for
                abuse/neglect. And their—their reasoning behind that was that this may be the child
                that is scapegoated in this family, the one that everything is blamed on.”
¶ 11        As to a timetable for restoring respondent to fitness, Dr. Cuneo testified that as respondent
       gets older and his brain changes, he will have better abstract thinking. Dr. Cuneo concluded
       that it is very possible that respondent could be restored to fitness in five years. No other
       witness testified. The trial court found respondent unfit to stand trial and no reasonable
       probability that respondent would attain fitness within one year. See 725 ILCS 5/104-16(d)
       (West 2012).
¶ 12        On November 15, 2012, the trial court considered various pending motions. The trial court
       first granted respondent’s motion for appointment of a guardian ad litem. That appointment
       was prompted in part by the arrest of respondent’s father for child endangerment in connection
       with the events leading to the death of T.W. The trial court also granted the State’s motion to
       remand respondent to the DHS so that he could be evaluated for fitness restoration services.
       The trial court further ordered the State to contact the Department of Children and Family
       Services (DCFS), explaining that:
                “It does appear that this minor is dependent at this point in time, so I’m ordering the
                State to hotline this case. And I am not going to detain this minor [at the St. Clair
                County Detention Center]. I’m going to get the department involved ASAP so we can
                get somebody out here to take care—custody of this young minor.”
       Respondent was subsequently placed with an aunt, a licensed foster care provider, in Cahokia.
¶ 13        The evaluation conducted by the DHS recommended that respondent be placed with
       Streamwood Behavioral Healthcare System (Streamwood). Respondent was admitted to
       Streamwood on December 4, 2012. Pursuant to the trial court’s order, Streamwood evaluated
       respondent for possible commitment under the Mental Health and Developmental Disabilities
       Code. See 725 ILCS 5/104-23(b)(3) (West 2012). Streamwood found no evidence that
       respondent was a danger to himself or others, and concluded that respondent did not meet the
       criteria for civil commitment. In light of these developments, the trial court returned
       respondent to his aunt, with the condition that he would have no unsupervised contact with
       other children. The trial court ordered respondent’s counsel to provide the court with an
       outpatient fitness restoration plan, as well as a mental health services and school programming
       plan. 2
¶ 14        The trial court also granted the State’s motion for a discharge hearing. See 725 ILCS
       5/104-23(b)(1), 104-25 (West 2012). The procedures governing discharge hearings are set
       forth in the Code of Criminal Procedure of 1963, but are incorporated into the Juvenile Court
       Act of 1987 and are applicable to respondent. See In re S.B., 2012 IL 112204, ¶ 21. The

          2
            Events following the filing of the State’s petition for adjudication of wardship effectively
       precluded respondent from attending classes for the school year beginning in the fall of 2012. A
       program addressing fitness restoration, mental health services, and schooling was developed through
       Chestnut Mental Health Services and approved by the court in January 2013.

                                                    -4-
       purpose of a discharge hearing, which is conducted without a jury, is to determine the
       sufficiency of the evidence against a defendant who has been found unfit to stand trial. 725
       ILCS 5/104-25(a) (West 2012). If the evidence fails to establish the defendant’s guilt beyond a
       reasonable doubt, the court shall enter a judgment of acquittal. 725 ILCS 5/104-25(b) (West
       2012). If the evidence is sufficient to establish the defendant’s guilt, no conviction results.
       Instead, the defendant is found “not not guilty” (emphasis in original) (S.B., 2012 IL 112204,
       ¶ 5) and may be remanded for further treatment (725 ILCS 5/104-25(d) (West 2012)). In the
       case of first degree murder, “the treatment period may be extended up to a maximum treatment
       period of 5 years.” 725 ILCS 5/104-25(d)(2) (West 2012).
¶ 15       Prior to the discharge hearing in the instant case, respondent filed a motion to suppress all
       statements he made to “anyone” during the investigation of T.W.’s injuries. In his amended
       motion, respondent focused solely on statements he made to Detective Sean Adams of the
       Cahokia police department on August 24 and 26, 2012. Respondent argued that the
       questioning by Detective Adams amounted to a custodial interrogation, at which he did not
       have the benefit of counsel, and that he did not voluntarily waive his Miranda rights.
       Respondent further argued that, in any event, his statements were not voluntary.
¶ 16       The hearing on respondent’s amended suppression motion proceeded on March 14, 2013.
       The State called as its only witness Detective Adams. He testified that during the course of his
       investigation, respondent became a suspect. Although Adams stated that he is a trained
       juvenile officer, he had concerns about interviewing a nine-year-old. Adams explained that he
       was used to interviewing adults and that it was very unusual to interview someone of
       respondent’s age. The first interview of respondent took place on August 24, 2012, at about
       6:30 p.m., in the kitchen of respondent’s home. Respondent’s father was present. Adams wore
       his service revolver, but was not in uniform. Although Adams did not consider respondent to
       be in custody, he provided Miranda warnings “to solve any problems.” Adams stated that
       “[w]hichever way you look at it,” custodial or noncustodial, respondent received the warnings.
       Adams further testified that he believed respondent understood his Miranda rights by shaking
       his head up and down, and explaining back to him what a particular right meant. Adams stated
       that at no time during the interview did respondent or his father indicate that they did not want
       to speak with him.
¶ 17       The second interview took place on August 26, 2012, at the same place and time. Adams
       testified that at the time of the second interview, he had not yet been advised of T.W.’s death.
       Respondent’s father was also present for the second interview, but Adams asked him to sit
       away from the table where respondent was seated. Adams explained that he wanted to clarify a
       few questions with respondent directly, “instead of having dad interject anything during the
       interview,” or interfere with his questioning of respondent. Adams testified that even though
       respondent was not in custody, he went over respondent’s Miranda rights, but not as
       extensively as during the first interview. Adams believed respondent understood his rights
       because he shook his head up and down and acknowledged his understanding by saying,
       “Yes.”
¶ 18       Although Adams testified on direct examination that he was “trying to be as honest and
       sincere” as he could be during the second interview, he admitted on cross-examination that he
       lied to respondent and employed trick tactics. Adams agreed that he repeatedly told respondent
       that the injuries to T.W. were an accident, even though Adams did not believe that was the


                                                   -5-
       case. Adams further testified that respondent did not appear to have any sort of developmental
       delay, and when he asked respondent’s father if respondent had any special needs, the father
       only noted an asthma condition. Adams indicated that had he known about respondent’s
       intellectual limitations, he “would have done it different.”
¶ 19       At the suppression hearing, the State played video recordings of the two interviews. Those
       recordings, which were entered into evidence, disclose that the interviews lasted between 30
       and 40 minutes. The details of the two interviews will be discussed later in this opinion.
¶ 20       On March 25, 2013, the trial court denied respondent’s suppression motion. The trial court
       determined that respondent was not in custody at the time of the police questioning, he
       voluntarily waived his Miranda rights, and his statements were voluntary.
¶ 21       The discharge hearing, previously scheduled for March 27, 2013, was continued on the
       guardian ad litem’s motion to have Dr. Cuneo examine respondent as to his sanity at the time
       of the offense. See 720 ILCS 5/6-2 (West 2012). Dr. Cuneo examined respondent on May 6,
       2013. He opined that respondent was legally sane at the time of the offense, notwithstanding
       his borderline intellectual functioning and depression, even if he did suffer from posttraumatic
       stress disorder as reported by Chestnut Mental Health Services. 3
¶ 22       The discharge hearing proceeded on May 22 and 23, 2013. The State called several
       witnesses. Tara Welch, a physical therapist assistant, testified that she saw T.W. and his
       mother at their home on August 22, 2012, in the early afternoon. This was Welch’s first
       appointment with T.W., who had previously been evaluated for physical therapy because he
       was developmentally delayed. T.W. was dressed only in a diaper. Welch testified that he
       appeared “happy,” and she observed no injuries.
¶ 23       Edna Norman, a child protection specialist with DCFS, testified that on August 23, 2012,
       she and Anna James, the primary investigator, went to the Cahokia home where T.W. resided
       in response to two hotline reports. The purpose of their visit was to assess the children’s safety.
       Present at that time were Melissa, Dre, Daveon, and respondent, as well as Alisha, Todd and
       Tymerian. Norman first interviewed respondent in his bedroom. No one else was present for
       the interview. Respondent, who appeared shy, told Norman that he and T.W. were in the
       playroom, and that no adults were home. T.W. was crying, and respondent hit him in the
       forehead. Respondent demonstrated by hitting his fist into his hand. When Norman told
       respondent that T.W. had a bruise above his eye, respondent said he hit T.W. in the forehead,
       again hitting his fist into his hand. When Norman asked respondent if he hit T.W. anywhere
       else, respondent said he hit T.W. in the side, and T.W. had thrown up “some white stuff.”
       Respondent said T.W. then stopped crying, and respondent carried him to the children’s
       bedroom. T.W. went to sleep.
¶ 24       After interviewing respondent, Norman went into the other bedroom and noticed that Todd
       had an abrasion on his lip and a little swelling. When she asked what happened, respondent,
       who had followed her into the bedroom, said he hit Todd in the mouth. Todd was nonverbal
       and could not tell Norman what happened.

           3
            According to Dr. Cuneo’s written report that was filed with the trial court, a representative from
       Chestnut Mental Health Services advised Dr. Cuneo that the diagnosis of posttraumatic stress disorder
       was based on a series of trauma at respondent’s house, i.e., respondent reported being repeatedly
       bullied, burned, and beaten by Dre, and living in fear of Dre.

                                                      -6-
¶ 25       Over the State’s objection, Norman testified regarding statements Dre made when she
       interviewed him. According to Norman, Dre told her that all five children were in the
       playroom, but he took Todd and Tymerian into the parents’ bedroom to watch a movie. Dre
       never told her that he saw respondent hit T.W. Dre did say that after he saw respondent
       carrying T.W. into the children’s bedroom, Dre went to that bedroom and saw T.W.’s stomach
       “jumping.”
¶ 26       The State next called 11-year-old Dre. He acknowledged that, prior to his testimony that
       morning, he watched the video of the statement he gave at the Child Advocacy Center. Dre
       then testified that on the afternoon of August 22, 2012, he was home with respondent and
       Alisha’s three children, Todd, Tymerian, and T.W. The adults had all gone to his “granny’s”
       house. Dre was watching a movie in his mother’s bedroom, while the other four children were
       in the back room watching television. Dre testified that he heard a “boom, boom” and
       investigated, but saw nothing wrong. After he heard another “boom, boom,” he went to the
       back room and picked up T.W. According to Dre, “his whole body just fell down like he was
       dead or something.” Dre testified that he put T.W. on his mother’s bed and called his mother,
       Melissa. No one answered. He called a second time, and his mother passed the phone to Alisha.
       Dre told her that he thought something was wrong with T.W.
¶ 27       Dre testified that the adults did not arrive home for 1 hour and 30 minutes. During that
       time, Dre heard T.W. making funny noises. When the adults arrived home, no one checked on
       T.W. Dre testified that he saw T.W.’s fists “balled up” and his stomach “going in and out.”
       Around 2 a.m., Melissa woke up everyone and the police arrived.
¶ 28       Dre did not see respondent hit T.W., and does not know who moved T.W. from his
       mother’s bedroom to the children’s bedroom where he and respondent slept. Dre denied hitting
       T.W. or respondent.
¶ 29       Dre admitted that he lied in the statement he gave at the Child Advocacy Center. In that
       statement he indicated that “Fatty” and “Pooh,” two individuals who used to live around the
       corner from the family, were at the house on August 22, 2012, when T.W. was injured. Dre
       also lied in his statement when he said his mother, Melissa, was outside at the time, rather than
       at his “granny’s” house. Dre said he made those statements because he did not want his mother
       and the other adults to get in trouble. “If we would have told them that we was in the house by
       ourselves they probably would have tooken my mama and them to jail.” On cross-examination,
       Dre explained that his mother told him, during the car ride to the Child Advocacy Center, that
       he should say that Fatty and Pooh were at the house on August 22. Respondent and his father,
       David, were also in the car when Melissa coached Dre. According to Dre, David told him not
       to say that respondent hit T.W. because nobody knew who did.
¶ 30       Dre also testified on cross-examination about a previous head injury to T.W. Dre indicated
       that Fatty was holding T.W. up in the air when the infant fell from his hands. Dre saw T.W. hit
       the top of his head on a glass table, and begin to cry. Dre denied that T.W. also fell from the
       table to the floor.
¶ 31       Joyce W., Melissa’s stepmother, testified that she would see respondent about twice a
       month when Melissa and David came over, and that she treated respondent like one of her own
       grandchildren. On August 22, 2012, Melissa, David, Daveon, and Alisha came over after
       dinner. Joyce testified that Alisha received two phone calls and that during the second call,
       “she gave Melissa the phone and told her Dre on the phone, something about little Dave had hit


                                                   -7-
       her baby.” Joyce testified that they did not leave immediately, were not in a rush, and left at
       8:30 or 9 p.m. Later that evening, Melissa called Joyce and told her that something was wrong
       with T.W., and that she could not get in touch with T.W.’s mother, Alisha. Melissa called her
       again, this time from the hospital.
¶ 32       Joyce further testified that between 1 and 2 a.m., on August 23, 2012, Melissa, David, Dre
       and respondent arrived at her home. Joyce could not believe that respondent hit T.W., so she
       asked him, “Did you hit the baby?” Respondent answered, “Yeah,” and was expressionless.
       Despite respondent’s answer, Joyce still found it difficult to believe that respondent could have
       hit T.W.
¶ 33       Detective Adams testified that he was assigned as the lead detective to investigate the
       injuries to T.W. He stated that a nurse practitioner at Cardinal Glennon Children’s Hospital
       advised him that the situation was grim because T.W. had traumatic brain injury and was
       bleeding from the brain. She also advised that there were both old and new injuries. Adams
       obtained an affidavit from a physician at the hospital indicating that the injuries were
       nonaccidental. After speaking with the DCFS investigator, attending Dre’s interview at the
       Child Advocacy Center, and speaking with numerous witnesses, Adams interviewed
       respondent on August 24, 2012, and again on August 26, 2012. Adams did not learn about
       T.W.’s death until after the second interview.
¶ 34       Over respondent’s objection, the video recordings of the two interviews were admitted into
       evidence and played for the court. Contrary to other evidence received at the discharge
       hearing, the video recording of the first interview discloses that David told Detective Adams
       that he was home with the children on August 22, 2012, although he was in bed because he
       works nights.
¶ 35       As to the other details captured in the two recordings, at this time, we note only that during
       the first interview respondent denied hitting T.W. and implicated Dre. Respondent also
       explained that he told DCFS that he hit T.W. only because he was afraid his father, Melissa and
       Alisha would otherwise go to jail.
¶ 36       During the second interview, respondent again implicated Dre, denying numerous
       suggestions by Adams that it was really respondent who hit T.W. After Adams repeatedly
       assured respondent that no consequences would attach to an admission and that any injury was
       simply an accident, respondent eventually admitted to hitting T.W. once in the side.
¶ 37       The State’s final witness was Dr. Jennifer Forsyth, who performed the autopsy of T.W. on
       August 27, 2012. At the time of her testimony, the autopsy report was not yet available and the
       death certificate had not yet been certified. Dr. Forsyth testified that the cause of death was
       closed head injury, the manner of death was homicide, and the mechanism of death was
       “diffuse axonal injury” (trauma throughout the brain) and “cerebral edema” (brain swelling). A
       person with this type of injury would quickly become lethargic, nonresponsive, and limp, and
       might suffer seizures. Also associated with such an injury is vomiting and a flexing of the
       hands into a fist. Dr. Forsyth further testified that diffuse axonal injury is not associated with
       general childhood trauma, like falling off a bicycle or changing table; a greater impact, or
       possibly shaking, is required. Although T.W.’s injuries were consistent with injuries that
       could have been sustained on August 22, 2012, Dr. Forsyth acknowledged that it was not
       possible to determine exactly when or how T.W.’s injuries were inflicted or whether he was
       shaken. When asked whether any injury received by the infant below the neck, such as to the


                                                   -8-
       chest or abdomen, would have been a cause of death, Dr. Forsyth stated that she did not
       observe any injury below the neck either at the autopsy or microscopically.
¶ 38       The State argued in closing that respondent was solely responsible for T.W.’s injuries, but
       that even if the court entertained the possibility that Dre was involved, respondent’s admission
       to Detective Adams that he hit T.W. once in the side is sufficient to meet the State’s burden to
       prove first degree murder under an accountability theory.
¶ 39       On June 5, 2013, the trial court entered an order finding respondent not not guilty of first
       degree murder, and that the treatment period for fitness restoration may be extended to the
       maximum statutory period of five years. See 725 ILCS 5/104-25(d)(2) (West 2012).
¶ 40       Respondent appealed, arguing that “(1) the trial court erred in denying his amended motion
       to suppress statements, (2) the trial court erred in allowing Dr. Forsyth to testify as an expert
       witness, (3) the trial court erred in finding him not not guilty of first-degree murder, and (4) he
       was prejudiced by the unavailability of T.W.’s death certificate and autopsy report.” 2013 IL
       App (5th) 130341-U, ¶ 29. The appellate court majority held that the trial court’s findings that
       respondent voluntarily waived his Miranda rights and his statements to Detective Adams were
       voluntary were against the manifest weight of the evidence. Although acknowledging that a
       valid question exists as to whether the interviews were custodial, the majority nonetheless
       noted that the interviews “had too many of the indicia of custodial interrogation.” Id. ¶ 41. The
       appellate court reversed and remanded without considering respondent’s other arguments. Id.
       ¶ 42.
¶ 41       The dissenting justice would have held that any error in the admission of respondent’s
       statements was harmless because his statements were largely exculpatory, and the one lone
       inculpatory statement was cumulative of other evidence, i.e., the statements he made to Edna
       Norman and Joyce W. Id. ¶ 46 (Wexstten, J., dissenting).

¶ 42                                          ANALYSIS
¶ 43       The State argues on appeal that the trial court properly denied respondent’s motion to
       suppress statements and urges us to reverse the appellate court judgment. The State contends
       that respondent was not in custody when he was questioned by Detective Adams and, thus, no
       Miranda warnings were required. See J.D.B. v. North Carolina, 564 U.S. ___, ___, 131 S. Ct.
       2394, 2402 (2011). The State continues that because Miranda warnings were not required,
       whether respondent knowingly and voluntarily waived his Miranda rights is not at issue in this
       appeal. The State further contends that the circumstances surrounding the questioning of
       respondent demonstrate that his statements were voluntary and, therefore, properly admitted at
       the discharge hearing. In the alternative, the State argues that even if the admission of
       respondent’s statements was error, any error was harmless beyond a reasonable doubt.
¶ 44       Respondent also focuses on the question of whether he was in custody when questioned by
       Detective Adams, arguing that an affirmative answer to that question would implicate his
       statutory right to an attorney under section 5-170(a) of the Juvenile Court Act (705 ILCS
       405/5-170(a) (West 2012)). This provision, which respondent cited in his suppression motion,
       states: “In a proceeding under this Article [i.e., the Delinquent Minors Article], a minor who
       was under 13 years of age at the time of the commission of an act that if committed by an adult
       would be a violation of Section 9-1 *** of the Criminal Code [first degree murder] *** must be
       represented by counsel during the entire custodial interrogation of the minor.” 705 ILCS

                                                    -9-
       405/5-170(a) (West 2012). Respondent maintains that a violation of section 5-170(a) requires
       suppression of a minor’s statements.
¶ 45        Respondent also argues that in light of his intellectual limitations and what he characterizes
       as the coercive nature of the interviews, his inculpatory statements to Detective Adams were
       not voluntary and should have been suppressed. Finally, respondent argues that based on the
       evidentiary record, admission of his statements was not harmless error.
¶ 46        A trial court’s ruling on a motion to suppress is reviewed under a two-part standard: the
       trial court’s factual findings will be reversed only if they are against the manifest weight of the
       evidence, but the trial court’s ultimate legal ruling on whether suppression is warranted is
       reviewed de novo. People v. Colyar, 2013 IL 111835, ¶ 24.
¶ 47        In light of the rulings below and the parties’ arguments on appeal, we consider first
       whether respondent was in custody when questioned by Detective Adams.

¶ 48                                                   I
¶ 49       Preliminarily, we consider whether the test for determining whether respondent was in
       custody for purposes of section 5-170(a) of the Juvenile Court Act is any different than the test
       for determining whether he was in custody for purposes of Miranda. Respondent cites the
       statutory definition of “custodial interrogation” found in another section of the Juvenile Court
       Act that governs the custodial interrogation of arrested minors. See 705 ILCS 405/5-401.5(a)
       (West 2012); In re Randall M., 231 Ill. 2d 122, 129 (2008). That definition provides that a
       custodial interrogation “means any interrogation (i) during which a reasonable person in the
       subject’s position would consider himself or herself to be in custody and (ii) during which a
       question is asked that is reasonably likely to elicit an incriminating response.” 705 ILCS
       405/5-401.5(a) (West 2012). The only reported case that considered that definition simply
       considered the factors utilized in the Miranda custody analysis. See People v. Travis, 2013 IL
       App (3d) 110170, ¶ 44. Assuming, without deciding, that the definition of “custodial
       interrogation” in section 5-401.5(a) of the Juvenile Court Act also applies to section 5-170(a),
       we will use the Miranda custody test to address both parties’ contentions as to whether
       respondent was in custody when questioned by Detective Adams.
¶ 50       Whether a person is in custody, and thus whether the warnings set forth in Miranda v.
       Arizona, 384 U.S. 436 (1966), are required, involves two 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.’ ” People v. Braggs, 209 Ill. 2d 492, 505-06 (2003) (quoting Thompson v. Keohane,
       516 U.S. 99, 112 (1995)). This is an objective inquiry “ ‘designed to give clear guidance to the
       police.’ ” J.D.B., 564 U.S. at ___, 131 S. Ct. at 2402 (quoting Yarborough v. Alvarado, 541
       U.S. 652, 668 (2004)). As J.D.B. explains:
               “Police must make in-the-moment judgments as to when to administer Miranda
               warnings. By limiting analysis to the objective circumstances of the interrogation, and
               asking how a reasonable person in the suspect’s position would understand his freedom
               to terminate questioning and leave, the objective test avoids burdening police with the
               task of anticipating the idiosyncrasies of every individual suspect and divining how
               those particular traits affect each person’s subjective state of mind.” Id.



                                                   - 10 -
¶ 51        This court has identified several factors relevant to the first inquiry: “(1) the location, time,
       length, mood, and mode of the questioning; (2) the number of police officers present during the
       interrogation; (3) the presence or absence of family and friends of the individual; (4) any
       indicia of a formal arrest procedure, such as the show of weapons or force, physical restraint,
       booking or fingerprinting; (5) the manner by which the individual arrived at the place of
       questioning; and (6) the age, intelligence, and mental makeup of the accused.” People v. Slater,
       228 Ill. 2d 137, 150 (2008). After considering and weighing these factors, the court must make
       an objective determination as to whether a reasonable person, innocent of wrongdoing, would
       have believed he or she was free to terminate the questioning and leave. Id. Where, as here, the
       person questioned is a juvenile, the reasonable person standard is modified to take that fact into
       account. Braggs, 209 Ill. 2d at 508-10; see also J.D.B., 564 U.S. at ___, 131 S. Ct. at 2399 (“a
       child’s age properly informs the Miranda custody analysis”). As we explained in Braggs, “If
       *** we are concerned with what a reasonable person ‘in the defendant’s shoes’ [citation]
       would have thought about his or her freedom of action, the reasonable person we envision must
       at least wear comparable footwear.” Braggs, 209 Ill. 2d at 508.
¶ 52        After thoroughly reviewing the video recordings of the two interviews of respondent, as
       well as Detective Adams’s testimony at the suppression hearing, we conclude respondent was
       not in custody when he was questioned. Both interviews took place in surroundings familiar to
       respondent—his home, at his kitchen table. Detective Adams was the only officer present. He
       wore his service revolver, but was not in uniform. “Other things being equal, a suspect
       questioned in familiar (or at least neutral) surroundings does not face the same pressures as one
       questioned in a police-dominated atmosphere,” such as the station house. People v. Vasquez,
       393 Ill. App. 3d 185, 190 (2009) (citing 2 Wayne R. LaFave, Jerold H. Israel, Nancy J. King &
       Orin S. Kerr, Criminal Procedure § 6.6(e), at 738-39 (3d ed. 2007)). Although each case must
       rise or fall on its own facts, the view that at-home questioning is indicative of noncustodial
       questioning “is strengthened when the suspect’s friends or family members were present at the
       time.” 2 Wayne R. LaFave et al., Criminal Procedure § 6.6(e), at 740 (3d ed. 2007). Here,
       respondent’s father was present for both interviews, even though he assumed a passive role in
       the second interview. In addition, each interview began in the early evening, and lasted
       between 30 and 40 minutes. These factors also militate against a finding that respondent was in
       custody. See Vasquez, 393 Ill. App. 3d at 192.
¶ 53        As to the mood and mode of questioning, Detective Adams adopted a conversational tone
       and, at the first interview, asked respondent and his father permission to ask questions.
       Although Adams’s questioning during the second interview was highly suggestive (an issue
       we take up in part II of our analysis), we cannot say that Adams badgered respondent or was
       openly aggressive or hostile.
¶ 54        Turning to respondent’s age, intelligence and mental makeup, Detective Adams was aware
       that respondent was just nine years old. Indeed, he testified that he had concerns about
       questioning someone so young. The State concedes that this factor favors a finding that
       respondent was in custody. It is, however, only one factor of many that we must consider. We
       note, too, that respondent does not request this court to adopt a bright-line rule that a
       nine-year-old child is necessarily and always “in custody” during police questioning.
¶ 55        The appellate court questioned whether a nine-year-old of respondent’s intellectual level
       would feel free to leave or stop the interview. 2013 IL App (5th) 130341-U, ¶ 41. Detective


                                                    - 11 -
       Adams testified, however, that he was unaware of respondent’s mental deficits. The video
       recording of the first interview reveals that Adams asked respondent’s father if respondent had
       any mental illness or special needs. Respondent’s father noted that his son had asthma, but
       otherwise answered in the negative. Our own review of the video recordings does not lead this
       court to conclude that respondent’s mental deficits were objectively apparent. Accordingly,
       respondent’s mental deficits do not inform the custody analysis. See J.D.B., 564 U.S. at ___,
       131 S. Ct. at 2404 (Miranda custody analysis does not require officers to consider
       circumstances “unknowable” to them, but does require officers to consider the child’s age if it
       would have been “objectively apparent”); Braggs, 209 Ill. 2d at 508 (only general and “readily
       discernible” characteristics of the person can be incorporated into the reasonable person
       standard for purposes of Miranda custody analysis).
¶ 56       Because we conclude that respondent was not in custody when he was questioned by
       Detective Adams and, therefore, Miranda warnings were not required, we need not consider
       whether respondent voluntarily waived his Miranda rights. We also need not consider further
       whether respondent would have been entitled to counsel under section 5-170(a) of the Juvenile
       Court Act.

¶ 57                                                  II
¶ 58        Although Detective Adams was not required to provide Miranda warnings to respondent,
       the constitution yet requires that respondent’s inculpatory statements be voluntary. Slater, 228
       Ill. 2d at 159-60 (citing Beckwith v. United States, 425 U.S. 341, 347-48 (1976), and People v.
       Melock, 149 Ill. 2d 423, 452 (1992)). The requirement that a confession must be voluntary to
       be admissible in evidence in a criminal trial has its roots in both the self-incrimination clause of
       the fifth amendment, and the due process clause of the fourteenth amendment. Missouri v.
       Seibert, 542 U.S. 600, 607 (2004) (citing Bram v. United States, 168 U.S. 532 (1897)
       (self-incrimination), and Brown v. Mississippi, 297 U.S. 278 (1936) (due process)); see also
       People v. Richardson, 234 Ill. 2d 233, 252 (2009) (discussing the constitutional underpinnings
       of the voluntariness requirement). Generally, the question in voluntariness cases “is whether
       the defendant’s will was overborne at the time he confessed.” Lynumn v. Illinois, 372 U.S. 528,
       534 (1963). “If so, the confession cannot be deemed ‘the product of a rational intellect and a
       free will.’ ” Id. (quoting Blackburn v. Alabama, 361 U.S. 199, 208 (1960)); see also People v.
       Gilliam, 172 Ill. 2d 484, 500 (1996) (“the test of voluntariness is whether the defendant made
       the statement freely, voluntarily, and without compulsion or inducement of any sort, or
       whether the defendant’s will was overcome at the time he or she confessed”).
¶ 59        In determining whether an individual’s will was overborne or overcome, courts consider
       “the totality of all the surrounding circumstances,” i.e., “both the characteristics of the accused
       and the details of the interrogation.” Schneckloth v. Bustamonte, 412 U.S. 218, 226 (1973);
       accord Richardson, 234 Ill. 2d at 253. Characteristics of the accused include age, intelligence,
       background, experience, mental capacity, education, and physical condition at the time of
       questioning. Id. The court may also consider, where appropriate, whether the accused was
       found unfit for trial. See Slater, 228 Ill. 2d at 161. Details of the interrogation include the
       legality and duration of the detention; the duration of the questioning; the provision of
       Miranda warnings; and, in the case of a juvenile, the presence of a “concerned adult.”
       Richardson, 234 Ill. 2d at 253-54. The presence of any physical or mental abuse by police,


                                                    - 12 -
       including threats or promises, as well as the use of trickery, deception, or subterfuge, are also
       relevant. Id.; Melock, 149 Ill. 2d at 450. No single factor is dispositive. Gilliam, 172 Ill. 2d at
       500.
¶ 60       Significantly, the Supreme Court has recognized that where, as here, “a mere child—an
       easy victim of the law—is before [the court], special care in scrutinizing the record must be
       used.” Haley v. Ohio, 332 U.S. 596, 599 (1948). This court has similarly recognized that “the
       receiving of an incriminating statement by a juvenile is a sensitive concern.” People v. Prude,
       66 Ill. 2d 470, 476 (1977); accord In re G.O., 191 Ill. 2d 37, 54 (2000). Thus, the “greatest care
       must be taken to assure that the admission was voluntary, in the sense not only that it was not
       coerced or suggested, but also that it was not the product of ignorance of rights or of adolescent
       fantasy, fright or despair.” (Internal quotation marks omitted.) Prude, 66 Ill. 2d at 476 (quoting
       People v. Simmons, 60 Ill. 2d 173, 180 (1975), quoting In re Gault, 387 U.S. 1, 55 (1967)).
¶ 61       In light of these concerns, we view respondent’s age as a key factor in the voluntariness
       analysis. As the Supreme Court has acknowledged:
                    “A child’s age is far ‘more than a chronological fact.’ Eddings v. Oklahoma, 455
                U.S. 104, 115 (1982); accord, Gall v. United States, 552 U.S. 38, 58 (2007); Roper v.
                Simmons, 543 U.S. 551, 569 (2005); Johnson v. Texas, 509 U.S. 350, 367 (1993). It is a
                fact that ‘generates commonsense conclusions about behavior and perception.’
                Alvarado, 541 U.S., at 674 (BREYER, J., dissenting). Such conclusions apply broadly
                to children as a class. And, they are self-evident to anyone who was a child once
                himself, including any police officer or judge.
                    Time and again, this Court has drawn these commonsense conclusions for itself.
                We have observed that children ‘generally are less mature and responsible than adults,’
                Eddings, 455 U.S., at 115-116; that they ‘often lack the experience, perspective, and
                judgment to recognize and avoid choices that could be detrimental to them,’ Bellotti v.
                Baird, 443 U.S. 622, 635 (1979) (plurality opinion); that they ‘are more vulnerable or
                susceptible to … outside pressures’ than adults, Roper, 543 U.S., at 569; and so on. See
                Graham v. Florida, [560 U.S. 48, 68 (2010)] (finding no reason to ‘reconsider’ these
                observations about the common ‘nature of juveniles’).” J.D.B., 564 U.S. at ___, 131 S.
                Ct. at 2403.
¶ 62       In the specific context of police interrogation, the Supreme Court has observed that
       circumstances and events that “would leave a man cold and unimpressed can overawe and
       overwhelm a lad in his early teens.” Haley, 332 U.S. at 599. “[N]o matter how sophisticated,”
       a juvenile who is subject to police questioning “cannot be compared with an adult” subject.
       Gallegos v. Colorado, 370 U.S. 49, 54 (1962). Thus, respondent’s young age, alone, is a fact
       from which this court can draw inferences about his judgment and susceptibility to influences
       and pressures during the course of police questioning.
¶ 63       This court’s voluntariness assessment, however, is not limited to commonsense
       conclusions about nine-year-olds or children generally. Unlike the Miranda custody analysis
       in this case, which considers a hypothetical reasonable juvenile (see J.D.B., 564 U.S. at ___,
       131 S. Ct. at 2402; Braggs, 209 Ill. 2d at 508-10), the voluntariness analysis is based on a
       particular juvenile. See generally J.D.B., 564 U.S. at ___, 131 S. Ct. at 2410 (Alito, J.,
       dissenting, joined by Roberts, C.J., Scalia and Thomas, JJ.) (observing that the
       “all-encompassing nature of the voluntariness inquiry” allows courts to make a “highly


                                                   - 13 -
       individualized determination”). The question at issue here is not whether a reasonable or
       average nine-year-old’s will would have been overborne by the circumstances attendant to the
       police questioning in this case, but whether this particular nine-year-old’s will was overborne.
¶ 64        At the time of the suppression hearing in March 2013, the trial court had already found
       respondent unfit to stand trial, meaning that respondent was “unable to understand the nature
       and purpose of the proceedings against him or to assist in his defense.” 725 ILCS 5/104-10
       (West 2012). Respondent expressly relied on that finding in his written suppression motion
       and, at the suppression hearing, asked the trial court to take judicial notice of the entire case file
       to that point, including all prior orders. The trial court agreed to do so.
¶ 65        At the time of the suppression hearing, the case file also included the written report
       prepared by Dr. Cuneo, who evaluated respondent for fitness, just days after the police
       questioning in this case. Because Dr. Cuneo was the only witness at the fitness hearing, the
       trial court’s finding of unfitness was necessarily based on Dr. Cuneo’s evaluation of
       respondent. As detailed earlier in this opinion, Dr. Cuneo concluded that respondent’s
       cognitive abilities were only at the seven- to eight-year-old level, and that his borderline
       intellectual functioning, coupled with his age and developmental immaturity, substantially
       impaired his ability to understand the nature and purpose of the legal proceedings and to assist
       in his own defense. Respondent could not grasp how a person is found guilty, and could not
       understand the role of a defense attorney.
¶ 66        At the time of the suppression hearing, the court file also included a report, filed by the
       DHS on November 28, 2012, stating that “[t]here are no known prior arrests,” and “no history
       of incarceration with the Department of Corrections or juvenile program in the State of Illinois
       or other state.”
¶ 67        These characteristics of respondent—his young chronological age, his even younger
       mental age, his mental deficits, his lack of experience with law enforcement, and his inability
       to understand the legal proceedings—are factors that color the lens through which this court
       necessarily views the circumstances of the police questioning in this case.
¶ 68        With respect to the first interview on August 24, 2012, Adams began by obtaining basic
       information about respondent, and the Cahokia household. Adams then read respondent the
       Miranda warnings, and attempted to explain concepts the nine-year-old did not understand.
       After all the warnings were provided, respondent received instructions on how to “initial” the
       Miranda waiver form, a concept he did not grasp. Adams spoke to respondent in a
       conversational tone, and after obtaining permission to speak with him, Adams elicited general
       information from both respondent and David about who was present in the home on the
       evening of August 22, 2012, when T.W. was injured. Adams generally asked open ended
       questions about what happened that evening. Respondent immediately implicated Dre in
       T.W.’s injuries. Significantly, when Adams asked respondent if he remembered what he told
       the woman from DCFS, respondent answered: “I told her I did it.” Respondent immediately
       explained, however, that he said that only because he did not want his dad, Melissa, or Alisha
       to go to jail. David warned his son: “If you didn’t do nothing like that, don’t admit that you did
       it. You’re putting yourself in danger.” Upon further questioning, respondent again implicated
       Dre, stating that Dre gets mad and hits the kids. Respondent said he, himself, does not hit kids;
       he plays with them; he tries to make them laugh. Respondent agreed with Adams that he made
       a mistake when he told DCFS that he hit T.W., and that he was trying to make sure nobody got


                                                    - 14 -
       into trouble. Respondent added: “Especially I got real scared ’cause I thought I was gonna get
       tooken away.” Adams assured respondent that he was not there to take him away. When asked
       again what happened on the evening of August 22, respondent said that Dre kept hitting T.W.
       in the head because he was crying, and that he told Dre several times to stop.
¶ 69       In considering the numerous factors that impact our voluntariness analysis, we note at the
       outset that we place little stock in the fact that Detective Adams provided Miranda warnings to
       respondent. Although the State argues that the trial court’s finding that respondent voluntarily
       waived his Miranda rights is not against the manifest weight of the evidence, we question
       whether this low-functioning nine-year-old, who could not grasp the role of a defense attorney
       or understand how a person is found guilty or innocent, could possibly understand the Miranda
       warnings. Detective Adams did attempt age-appropriate explanations, but those attempts were
       not necessarily successful. For example, when Adams told respondent, “If you do talk to me or
       us, everything that you say can be used against you in a court,” Adams offered this cryptic
       explanation:
                “What that means, little Dave, is say, for instance, we start talking. Okay? And you
                start telling me about something that happened. Now I’m not saying it did, but say you
                did. Everything that you tell me can be used in a court. Okay? Can be used against you
                in a court. Okay? To either try you as either guilty or innocent, is what that means.
                Okay? So what we talk about now on this tape is—yeah, we’re still
                recording—everything that we talk about will be, can be used in court. That means
                attorneys and everybody else. That’s what that means.”
¶ 70       Putting aside whether respondent had the intellectual capacity to understand his Miranda
       rights, their provision, in any event, was completely gratuitous. Respondent, who was not in
       custody, did not have the right to counsel, or to have counsel appointed at no charge. Thus,
       respondent’s understanding of rights he could not have exercised is inconsequential in the
       voluntariness calculus.
¶ 71       With respect to the other factors that inform our voluntariness analysis, we conclude that,
       notwithstanding respondent’s young chronological age, and his even younger mental age,
       respondent’s will was not overborne during the first interview when he acknowledged telling
       DCFS that he “did it.” The questioning, which we have already determined was noncustodial,
       was not prolonged, the tone was conversational, not accusatory, and the questions Adams
       asked—including the question regarding respondent’s admission to DCFS—did not suggest
       the answers. Adams made no threats. Although he assured respondent that he was not there to
       take him away, he did not belabor the point or make other promises to elicit a confession.
       Moreover, David was at respondent’s side and provided sage advice about not making any
       admissions. Because respondent’s statement was voluntary, the trial court properly denied
       respondent’s suppression motion with respect to the first interview.
¶ 72       The second interview, however, proceeded in a markedly different fashion. Adams
       provided a quick, i.e., 45-second, review of the Miranda warnings respondent had received
       two days prior. Adams then asked David to move his chair away from the table where
       respondent was seated. Adams testified at the suppression hearing that he did not want David
       interjecting anything during the interview. In response to Adams’s questions, respondent again
       implicated Dre in T.W.’s injuries, and denied that he, himself, had hit the infant. Adams



                                                  - 15 -
       advised respondent, “I think I know what happened,” and then launched into the first of two
       monologues:
                 “I think what happened is—I want you to be honest with me and I don’t want to tell you
                 something. Okay? I really don’t. Listen to me, little man. I don’t want to put anything in
                 your head that’s not true. Okay? I don’t. Because I’m here, and I’m going to leave after
                 I get done talking to you, and you’re not going anywhere. Okay? You’re going to stay
                 here. I promise you that. Okay? I’m not here to take you to jail. I’m not here to take you
                 anywhere away from your daddy. You understand that? So I want you to understand
                 that. Okay? I really do. I promise you I’m not taking you away from your daddy. Okay?
                 Yes, I’m a police officer, and yes I have to come out and talk to people and stuff like
                 that because we have a situation here as far as something happened. Okay? Something
                 happened, and nobody knows what happened except who was in the room. Okay?
                 That’s why I’m talking to you buddy. And I just want you to know it’s okay if you
                 want, if there’s something going on here, or if you’re afraid that maybe you made an
                 accident or something like that, I understand. Okay? Everybody makes mistakes. And
                 that’s from me to you. Okay? I promise you that. Everybody makes mistakes, little
                 Dave. I make mistakes every day. I know I do. Okay? Everybody makes mistakes, little
                 Dave. But everything we’ve got, we’ve talked to people. Okay? You know how
                 investigations work and stuff like that. You’ve ever seen on CSI and stuff is, something
                 happens and then we have to go and talk to this person, and then we to talk to this
                 person, and then we talk to this person. We have to figure out what happened. Okay?
                 But what we’ve got now is I think Drequon was in another room watching a movie
                 whenever something happened in the room back there. Okay? And if it did, I just want
                 to know the truth. That’s all I want to know. Because I find out the truth, and I go home.
                 You stay here. You can go to granny’s after this. Correct? That’s all I want, little Dave.
                 I don’t want you to have to feel like you have to cover for somebody. I don’t want you
                 to feel like somebody’s going to get into trouble. I don’t want you to feel that guilt or
                 something, okay, as far as you might give me information to make someone look good
                 or bad. Okay? I just want to know the truth. That’s all I want to know, little Dave. I
                 promise you that’s all I want to know. Okay? If you did hit Quan Quan [T.W.], I just
                 need to know that and then I need to ask you where you hit him, and I know it wasn’t a
                 lot of times. I know it wasn’t, but if you did I just want you to be honest with me. It’s
                 okay. I’m leaving. I’m not going to take you to jail. I promise you. Do you understand
                 that? You are not going to go to jail, buddy. You’re not. I just want to find out the truth.
                 That’s all my job consists of whether you’re 9 or 99. I still gotta find out the truth.
                 Okay? So let me ask you this, little Dave, okay? Just between me and you and your dad
                 sitting right over there, can you just tell me, by chance did you hit Quan Quan, just
                 once?” (Emphasis added.)
¶ 73        Respondent denied that he hit the infant, and again implicated Dre, providing details about
       the incident in response to Adams’s questions. Adams continued with his theme that mistakes
       or accidents happen: “Everybody makes accidents, even me. I know it’s hard to believe, but I
       make accidents every day. I make oopses. I do.” Respondent provided additional details, but
       still failed to admit any wrongdoing. Adams then proceeded with his second monologue:
                 “But at no time, and I just want to ask ’cause again I want to make sure you understand
                 this. And if you did, I need you to tell me, okay? At no time did you ever hit Quan

                                                    - 16 -
               Quan? If you did, I just need to know. [Respondent shakes his head no.] Are you sure,
               little Dave? I think, I think you’re just afraid and I don’t want you to be afraid. Okay?
               Don’t be afraid of me. I’m not here to harm you. Okay? I’m not here to cause any harm
               whatsoever on you, or your dad or Melissa or anybody. Okay? I’m just here to talk to
               you, buddy. That’s it. But what I think you’re not telling me is, I think you did hit him.
               And if you did, I just need to know. ’Cause again, I’m not taking you nowhere. Do you
               understand that, little Dave? You’re not going to jail, little Dave. Okay? You’re not.
               You’re not going to a juvenile detention center. You’re not going to prison. Daddy’s
               not going to prison. Melissa’s not going to prison. Nobody’s going to jail. Okay?
               Nobody’s going to jail. But I think there’s something that you’re not telling me, and
               again I don’t want you to tell me something that is not true, little Dave, I don’t. But
               people make mistakes. I do, and I think you made a mistake. I think it was an accident,
               I really do. I think it was a total accident ’cause he wasn’t, he wouldn’t quit crying. And
               I don’t think Drequon hit him. I really don’t think so. I think you did, and I think that
               you’re just telling me Drequon did. But again, I just want to know. It’s okay. Because
               either way you’re not in trouble. Okay? I’m not taking anybody to jail; I’m not taking
               you away from your family. Do you understand that, little Dave? Okay. Are you sure
               you just didn’t make an accident, maybe hit him, just punch him one time? And if you
               did, I need to know. Just tell me the truth is all I want, little Dave. You’re not going to
               go anywhere. Do you understand that? Do you specifically, are you truly understand
               what I’m saying little Dave? I’m not taking you anywhere. I’m not. But for little Quan
               Quan I need to know. Okay? Because a lot of people want to know what happened. I
               think you made a mistake; I really do. And I just need you to tell me you made a
               mistake, and then we need to go on with it. Okay? Because after you tell me, I’m going
               to get back in my car and go and you can go to your grandmama’s house. Probably
               never see me again. Probably a good thing, ain’t it? You don’t like cops in your house,
               right? Nobody likes police officers in their house. I don’t. I’m a cop. Okay? Do you
               understand me, little man? I’m not taking you anywhere, young man. I done told your
               daddy this, okay? And I want you to know 100%. I’m not lying to you. I’m not taking
               you nowhere, little Dave. I think what happened was an accident. I really do. So can
               you please tell me, just forget everything we’ve talked about. Okay?” (Emphasis
               added.)
¶ 74       After additional comments and questions, respondent stated it was Dre who hit T.W., but
       that he, himself, hit T.W. “once.” In response, Adams told respondent:
               “It’s okay. You’re still going to go to grandma’s tonight. You’re still going to hang out
               with dad. I told you, I’m not here to put you in jail. Okay? That’s my promise to you,
               and this is all video and audio and videotaped. Okay? So I can’t lie. Okay? I’m not
               lying to you, little man, and I’m not lying to your dad right there. I promise that.”
       Upon questioning, respondent stated that he “just joined in” and hit T.W. in the side once with
       his hand.
¶ 75       Contrary to what actually transpired during his questioning of respondent during the
       second interview, Detective Adams testified at the suppression hearing that “you’ll never,
       ever, ever hear me say ‘promise’ in an interview.” Adams also testified that he did not believe



                                                   - 17 -
       the injuries to T.W. were the result of an accident, and admitted that he employed “lying and
       trick tactics” when he questioned respondent.
¶ 76        The use of deception or subterfuge does not alone invalidate a confession as a matter of
       law, but it is a factor to consider in examining the totality of the circumstances. Melock, 149 Ill.
       2d at 450. So, too, is the use of promises to induce a confession. In re L.L., 295 Ill. App. 3d 594,
       600 (1998). Based on the circumstances of the second interview, we conclude that
       respondent’s inculpatory statements that he hit T.W. were not given voluntarily and that
       evidence of the second interview should have been suppressed.
¶ 77        We have already concluded that the provision of gratuitous Miranda warnings during the
       first interview does not affect the voluntariness calculus. That conclusion applies equally to the
       45-second Miranda review that preceded the questioning of respondent at the second
       interview.
¶ 78        With respect to the presence of respondent’s father, David, Detective Adams marginalized
       David’s presence in the second interview by moving him away from respondent’s side. And, in
       fact, David assumed a passive role during the second interview. The only time David tried to
       interject something—and Adams cut him off—was when Adams tried to clarify whether
       David was in the home at the time T.W. was injured. Thus, in contrast to the first interview, the
       “concerned adult” factor in the second interview does not weigh heavily in favor of
       voluntariness.
¶ 79        As to the interaction between the detective and respondent, although Adams adopted a
       conversational tone during the second interview just as he had in the first interview, that is
       where any similarity between the two interviews begins and ends. From the outset of the
       second interview, Adams seized on respondent’s fear that his father, Melissa or Alisha would
       go to jail, or that he, himself, would be taken away. Adams promised respondent that no matter
       what he said, no one was going to jail, no one would be in trouble, he would not be taken from
       his father and, at the end of the day, he could go to his grandmother’s house and “hang out”
       with his dad. Adams continually reinforced the notion that no consequences would attach to an
       admission by respondent that he hit T.W. Adams also rejected respondent’s repeated denials of
       wrongdoing, making plain that anything less than an admission was unacceptable. Adams
       further downplayed the significance of an admission, unceasingly telling respondent that
       whatever happened was an accident or a mistake, and everybody makes mistakes, even the
       detective. Adams was also explicit about the kind of admission that would suffice—an
       admission that respondent hit T.W. once. Respondent eventually admitted to just that: hitting
       the infant once. Though an adult might very well have been left “cold and unimpressed” with
       Adams’s mode of questioning (Haley, 332 U.S. at 599), respondent was just a boy of nine,
       functioning at the level of a seven- or eight-year-old, and thus was far more vulnerable and
       susceptible to police coercion of this type. The trial court erred in denying respondent’s
       suppression motion as to the second interview.
¶ 80        The State argues, as it did in the appellate court, that any error in the admission of
       respondent’s statements to Detective Adams was harmless in light of the other competent
       evidence of guilt, including the inculpatory statements respondent made to the DCFS
       investigator and Joyce W. The appellate majority, however, remanded this case to the trial
       court for a new discharge hearing without conducting harmless error review. We note that the
       State argued, in its petition for leave to appeal, that the appellate majority erred by failing to


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       conduct a proper harmless error analysis. We note, too, that the appellate court did not
       entertain respondent’s argument challenging the sufficiency of the evidence supporting the
       trial court’s not not guilty finding.
¶ 81        We, therefore, remand this case to the appellate court to set forth its analysis of the
       harmless error issue, in light of our holding. The appellate court is also directed to consider any
       other claims of error previously raised but not decided that are necessary to the proper
       disposition of this case.

¶ 82      Affirmed in part and reversed in part.
¶ 83      Cause remanded.

¶ 84        JUSTICE BURKE, specially concurring:
¶ 85        I agree with the majority that respondent’s confession, made during the second interview
       with Detective Adams on August 26, 2012, was not voluntarily made and, for that reason, the
       trial court erred in denying respondent’s motion to suppress that statement. I also agree that the
       matter must be remanded to the appellate court for review of the State’s claim that the
       admission of respondent’s confession to Detective Adams was harmless error. I write
       separately because I disagree with the majority’s conclusion that respondent was not “in
       custody” when he was interrogated by Detective Adams.
¶ 86        In asserting that he was “in custody” when questioned by Detective Adams, respondent
       contends that we should apply the statutory definition of “custodial interrogation” found in
       section 5-401.5(a) of the Juvenile Court Act, which provides that a custodial interrogation
       “means any interrogation (i) during which a reasonable person in the subject’s position would
       consider himself or herself to be in custody and (ii) during which a question is asked that is
       reasonably likely to elicit an incriminating response.” 705 ILCS 405/5-401.5(a) (West 2012). I
       agree with the majority that, even if we assume that the definition of “custodial interrogation”
       in section 5-401.5(a) of the Juvenile Court Act applies here, in practice, the Miranda custody
       test would still be used to determine whether respondent was in custody when he was
       questioned by Detective Adams.
¶ 87        The Miranda custody test involves two discrete inquiries: first, what were the
       circumstances surrounding the interrogation; and second, given those circumstances, would a
       reasonable person have felt that he or she was not at liberty to terminate the interrogation and
       leave. People v. Braggs, 209 Ill. 2d 492, 505-06 (2003). With regard to the first prong, the
       following factors have been found relevant in determining whether a statement was made in a
       custodial setting: the location, time, length, mood, and mode of the interrogation, the number
       of police officers present, the presence or absence of the family and friends of the accused, any
       indicia of formal arrest, and the age, intelligence, and mental makeup of the accused. People v.
       Slater, 228 Ill. 2d 137, 150 (2008). After examining these factors, the court must make an
       objective determination as to “ ‘what a reasonable [person], innocent of any crime, would have
       thought had he been in the defendant’s shoes.’ ” People v. Wipfler, 68 Ill. 2d 158, 166 (1977)
       (quoting Hicks v. United States, 382 F.2d 158, 161 (D.C. Cir. 1967)).
¶ 88        With regard to the second prong, we said in Braggs, “As we consider the age, intelligence,
       and mental makeup of the accused—and an investigating officer’s awareness and exploitation
       of those characteristics—in our examination of the circumstances surrounding the

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       interrogation, so those factors are analytically intertwined with the reasonable-person prong of
       the custodial question.” Braggs, 209 Ill. 2d at 507. Further, it has become well-established, at
       least since Alvarado v. Hickman, 316 F.3d 841, 848 (9th Cir. 2002), was decided, that where a
       juvenile is concerned, the “reasonable-person” standard must be modified to reflect what a
       reasonable juvenile in defendant’s position would have thought.
¶ 89       The respondent in this case was just nine years old when he was questioned by Detective
       Adams. In 2001, our legislature enacted a statute requiring that all children under the age of 13
       “must be represented by counsel during the entire custodial interrogation of the minor” in
       relation to the commission of certain crimes, including murder. (Emphasis added.) 705 ILCS
       405/5-170(a) (West 2008). The legislature enacted this provision in recognition of the fact that
       children, particularly young children under the age of 13, because of the clear power
       differential between police officers and young children, are highly susceptible to coercion by
       police officers. See Jennifer J. Walters, Comment, Illinois’ Weakened Attempt to Prevent
       False Confessions by Juveniles: The Requirement of Counsel for the Interrogations of Some
       Juveniles, 33 Loy. U. Chi. L.J. 487 (2002). In Alvarado, the court noted, “If a juvenile is more
       susceptible to police coercion during a custodial interrogation, then the same 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. I agree with the Alvarado court’s observation and believe that, in this case,
       respondent must be deemed to have been “in custody” when he was interrogated by Detective
       Adams.
¶ 90       The overriding consideration when deciding whether an interrogation is “custodial” in
       nature is whether a reasonable person in respondent’s shoes would have fully understood and
       appreciated his or her right to remain silent and terminate the questioning. I do not believe it is
       possible to conclude that, in this case, anyone in respondent’s position would have had such an
       appreciation. Rather, in my view, all of the attendant circumstances serve to show that anyone
       in respondent’s shoes would have felt that he had no choice and was obliged to speak to
       Detective Adams.
¶ 91       Certainly the most compelling factor here is respondent’s tender age. Although I question
       whether any child—particularly a child under the age of 13—ever truly feels that he or she has
       the freedom to not cooperate with police, it is clear to me that a nine-year-old such as
       respondent here, who had no prior experience with law enforcement, would have felt
       compelled to speak to Detective Adams. Furthermore, I believe other circumstances—such as
       location and presence of a parent—which, in some situations, might point toward a finding that
       an interrogation was noncustodial, actually cut against such a finding in the present case.
¶ 92       In this case, respondent was interrogated at his home in the presence of his father. These
       facts indicate to me that respondent would not have felt free to get up and leave. First, since
       respondent was in his own home, where could he have gone if he wanted to leave? Secondly,
       the entire interrogation was videotaped and preceded by the detective’s “gratuitous” recitation
       of respondent’s Miranda rights. Despite assurances that respondent could remain silent (a right
       which it is unclear whether respondent or any nine-year-old could fully appreciate and
       understand), I believe the circumstances would lead even an adult to consider himself “in
       custody.” The videotaping of the event lent a certain formality to the interrogation which a
       nine-year-old with no prior experience could easily have interpreted as being “in custody.”



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¶ 93       In addition, the fact that respondent’s father was present, in my view, only served to place
       the parent’s imprimatur on the questioning. The father played virtually no role in counseling or
       advising his son. The only time respondent’s father advised him was to tell him to “tell the
       truth,” which reinforced the notion that respondent was required to speak to the police.
¶ 94       In light of the above, I would conclude that the questioning by Detective Adams amounted
       to a “custodial interrogation” within the meaning of section 5-401.5(a) of the Juvenile Court
       Act, and, as such, it was mandatory that he be represented by counsel during the entire
       custodial interrogation. Further, I would find that because respondent was not afforded the
       benefit of counsel, the trial court erred when it refused to suppress the statements respondent
       made to Detective Adams.

¶ 95      JUSTICE FREEMAN joins in this special concurrence.




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