                                  Illinois Official Reports

                                            Appellate Court



                              People v. Follis, 2014 IL App (5th) 130288



Appellate Court              THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v.
Caption                      ROSS D. FOLLIS, JR., Defendant-Appellee.



District & No.               Fifth District
                             Docket No. 5-13-0288


Filed                        June 6, 2014



Held                         The trial court’s order granting defendant’s motion to suppress his
(Note: This syllabus         confession to a charge of predatory criminal sexual assault of a child
constitutes no part of the   was affirmed where the record showed that defendant, an 18-year-old
opinion of the court but     male with a diminished mental capacity who left school in the tenth
has been prepared by the     grade, knew he was being investigated for the sexual abuse of the
Reporter of Decisions        daughter of his father’s girlfriend when two armed officers took him to
for the convenience of       the police station and interviewed him without any family members
the reader.)
                             present until he made incriminating statements, and the trial court’s
                             findings that defendant was in custody at the time and did not
                             knowingly and intelligently waive his Miranda rights were not against
                             the manifest weight of the evidence, especially when both experts who
                             examined defendant concluded that he could not have knowingly and
                             intelligently waived his rights.




Decision Under               Appeal from the Circuit Court of Washington County, No. 12-CF-72;
Review                       the Hon. Daniel J. Emge, Judge, presiding.



Judgment                     Affirmed.
     Counsel on               Heath Hooks, State’s Attorney, of Nashville (Patrick Delfino, Stephen
     Appeal                   E. Norris, and Sharon Shanahan, all of State’s Attorneys Appellate
                              Prosecutor’s Office, of counsel), for the People.

                              Michael J. Pelletier, Ellen J. Curry, and Amanda R. Horner, all of
                              State Appellate Defender’s Office, of Mt. Vernon, for appellee.




     Panel                    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 3 years of age, by 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.”



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¶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 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 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 to try to fish around and figure out what occurred

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       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 mildly 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 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 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


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             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 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.
¶ 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


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       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.
¶ 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 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).

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¶ 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 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.




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