Docket No. 95350–Agenda 16–September 2003.

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

							BRAGGS, Appellee.

Opinion filed December 18, 2003.–Modified on Denial of

Rehearing April 15, 2004.

	JUSTICE RARICK delivered the opinion of the court:

	Defendant, Mary Braggs, was charged in the circuit court of

Cook County with two counts of first degree murder for the deaths of

Connie Hall and Donald Rudolph. After refusing to conduct a hearing

on defendant’s pending motion to suppress statements, the circuit

court determined that defendant was unfit to stand trial due to the

severity of her mental retardation. The court thereafter conducted a

discharge hearing, found the State’s evidence sufficient to establish

defendant’s guilt beyond a reasonable doubt, and remanded defendant

to the Department of Mental Health and Developmental Disabilities

for a period of five years. Defendant appealed.

	The appellate court reversed and remanded. People v. Braggs, 302 Ill. App. 3d 602 (1998). Holding that the circuit court had erred

when it refused to conduct a suppression hearing, the appellate court

remanded the cause for a hearing on defendant’s motion to suppress.

The appellate court also concluded that the evidence was sufficient to

establish guilt beyond a reasonable doubt for purposes of the

discharge hearing.

	On remand, the circuit court conducted a hearing on defendant’s

motion to suppress, hearing testimony from the investigating

detective, a psychiatrist, a clinical psychologist, and an assistant

State’s Attorney who had interviewed defendant after she was

formally arrested. The court ultimately ruled defendant was not

competent to waive her Miranda rights, and consequently granted defendant’s motion with respect to statements made to the assistant

State’s Attorney after defendant’s arrest. However, the court did not

suppress an inculpatory statement defendant allegedly made to

detectives shortly before she was formally arrested, concluding that

defendant was not then in custody, there was no evidence of police

coercion or misconduct, and the statement was, therefore, admissible.

The circuit court determined that a new discharge hearing was not necessary and reinstated the original order committing defendant to

the Department of Mental Health. Defendant again appealed.

	The appellate court reversed and remanded, stating:

			“[W]hen the trial court ruled that Braggs’ statements to

the police were admissible because she was not in custody

and Miranda was inapplicable, it was in error. Likewise, the court’s ruling that, in the absence of police coercion or the

defendant being in custody, the fact that Braggs was mentally

handicapped was to be considered only as to the weight to be

given her statements and not as to whether those statements

were inadmissible, was in error. The court should have

considered whether Braggs’ statement to the detectives was

voluntary in a state-law sense based upon the totality of the

circumstances. [Citation.] One of the factors that the court

should have considered was whether Braggs’ mental

retardation deprived her of ‘the capacity to understand the

meaning and effect of the confession.’ [Citation.] This is

particularly important in the present case, where the trial

court found the defendant was incapable of waiving her rights

under Miranda due to her diminished mental capacity.” 335 Ill. App. 3d 52, 65.

The appellate court remanded the cause for a new hearing on

defendant’s motion to suppress, directing the circuit court to conduct

a new discharge hearing thereafter. 335 Ill. App. 3d at 69. The

appellate court observed, “much of the evidence presented at the

motion to suppress hearing was unavailable to the court which

conducted the 1996 discharge hearing.” 335 Ill. App. 3d at 69.

	We granted the State’s petition for leave to appeal (177 Ill. 2d R.

315), and we now affirm, with modification, the judgment of the

appellate court. We begin with a recitation of the evidence adduced at

the suppression hearing.

	Chicago police detective Edward Winstead testified that he

investigated the deaths of Donald Rudolph and Connie Hall. The

victims’ bodies were both found in a first-floor apartment located on

South Prairie Avenue in Chicago on April 28, 1993. Although officers

initially thought that Rudolph had been beaten to death, it was later

determined that Rudolph died as a result of strangulation. Hall died as a result of multiple stab wounds. During the course of the

investigation, Winstead began looking for defendant.

	On May 7, 1993, Survilla Cameron contacted Winstead and

informed him that defendant lived with her. Cameron represented

herself to be defendant’s sister and guardian; however, Winstead

admitted he never saw any documentation to substantiate Cameron’s

claim. After Cameron indicated that Winstead could speak with

defendant, Winstead transported defendant and Cameron to Area One

and questioned her. Prior to questioning, Cameron informed Winstead

that defendant was “mentally incompetent.” Winstead admitted one

could “clearly see that she was mentally deficient.” Cameron agreed

to help Winstead in his interrogation of defendant, but cautioned him

that defendant was “slow.” Winstead did not advise defendant of her Miranda rights. The interrogation took place in an interview room with another detective present.

	Winstead testified he had difficulty communicating with

defendant in that “sometimes she wouldn’t answer questions,” and

other times she was “very slow in answering.” In Winstead’s own

words: “She would be very slow in answering. And her sister would

then kind of repeat the question or if Mary Braggs seemed to be

paying attention to me she would then answer to her sister.” If

defendant responded, she would generally direct her answers to

Cameron, and Cameron would then “tell [Winstead] what [defendant]

was saying.” However, Winstead testified he could hear defendant as

she spoke. During the interrogation, Cameron acted as an

intermediary for Winstead. Defendant’s answers were responsive to

Winstead’s questions in the sense that defendant would respond to

questions repeated by Cameron and first posed by Winstead.

	Winstead summarized the substance of defendant’s statements

from the hour-long interrogation. According to Winstead, defendant

told him that she was in the apartment on South Prairie Avenue when

two black males came to the door. Defendant overheard an argument

and hid in the closet. When she came out, defendant saw Hall dead in

the bedroom. Defendant said Hall had been stabbed and was wearing

white. Defendant said Rudolph was in the front room. He had been hit

in the head with a wrench and had been strangled to death. Winstead

testified that defendant’s description was “very accurate as to how the victims died and where they were found.” Following the interrogation,

Winstead took defendant and Cameron home.

	On the morning of May 9, Winstead again questioned defendant,

this time at Cameron’s apartment. As in all of the interviews, Cameron

was present. Detective James Redmond was also present. Winstead

said defendant was still very slow in answering questions, or she might

not answer at all, but during this second interrogation, she at least

spoke directly to him most of the time. Winstead testified he went to

question defendant, a mere two days after the first interrogation, “to

see if [he] could get a little bit more information, if she recalled more

about the two black males who came to the door and the argument.”

Winstead testified that defendant told him one of the men was named

Ron and he was a friend of Cleo. Defendant described the other man

as a tall black male. Winstead testified that the investigation revealed

Ron Thomas was an acquaintance of Cleo and the victims, and when

Winstead located him he was with a tall black male named Mike.

	Later that same afternoon, Winstead picked up defendant and

Cameron and took them to Area One. Winstead spoke to defendant

in an interview room. He indicated, as previously, it took defendant a

long time to answer questions. “Often times [sic] she would put her head down and say ‘I don’t know.’ ” Winstead showed defendant

photographs of Ron Thomas and Mike. Defendant quickly identified

the photograph of Mike as being the tall black male. Winstead said she

was at first uncertain of the identity of Ron Thomas, then she

positively him. Winstead testified that when he informed defendant the

men were at the police station, defendant changed her story.

Defendant then said that these were not the two men who came to the

apartment and that it was two different men. Defendant reiterated that

two men came to the door and she hid in the closet.

	Winstead testified that on that same afternoon he took defendant

and Cameron to the scene of the murders. Defendant pointed out

where the two bodies were found. Winstead testified that her account

was consistent with where the bodies were found by the police.

Defendant then showed Winstead the closet where she hid. Winstead

testified he examined the closet and defendant “couldn’t have possibly

fit in there.” Winstead then took defendant and Cameron home,

having questioned defendant at three different locations over the

course of the day.

	On May 12, Winstead transported defendant and Cameron to the

polygraph unit of the Chicago police department. Although defendant

was cooperative, the polygraph examination was inconclusive because

defendant did not register enough emotion. Again, defendant was

returned to Cameron’s apartment. Cameron and defendant

subsequently changed residences.

	On June 25, 1993, Winstead picked up defendant and Cameron

from their new apartment and again took them to Area One for

questioning. Prior to the questioning, Winstead informed Cameron

that the police were looking at defendant as a potential suspect.

Despite the State’s representation otherwise, the record is silent as to

whether that information was communicated to defendant. Winstead,

another detective, defendant, and Cameron were present in the

interview room. Winstead advised defendant of her Miranda warnings from a standard form without additional explanation. Defendant made

no verbal response; she merely nodded her head in an affirmative

manner. Although Winstead could not remember her exact words, he

recalled that Cameron said something to the effect of: “he’s telling you

that you don’t have to talk to me and that you’re not going to be in

trouble or something.” Defendant nodded her head in agreement and

“seemed to understand what her sister was saying.” Defendant never

verbally indicated that she understood, and she did not sign a waiver

form. Indeed, it is unclear to what extent defendant ever responded to,

or communicated with Winstead, He acknowledged that Cameron

“initially” acted as an “interpreter,” and it is obvious from the

foregoing testimony that she was still acting in that capacity on June

25, 1993, despite Winstead’s suggestion to the contrary: “After a

while, after I talked to [defendant] somewhat, I could begin to

understand or she’d answer me or she wouldn’t.” The record does not

indicate whether Winstead’s questions to defendant were suggestive

or leading, or whether they called for a narrative response.

	Although the transcript of the suppression hearing does not

reveal the substance of statements defendant made during the June 25

interview, the testimony of another detective from the discharge

hearing indicated that defendant said she and Connie Hall were in an

apartment together on April 28, 1993, when Donald Rudolph

returned. Rudolph was drunk and struck both defendant and Hall.

Defendant then knocked Rudolph down and he struck his head. Hall became upset, accusing defendant of killing Rudolph, and defendant

then stabbed Hall a number of times in her upper body. Following the

hour-long interview, defendant was placed under arrest. An assistant

State’s Attorney arrived at the police station and again advised

defendant of her Miranda warnings.

	Dr. Philip Pan, a psychiatrist, testified for the defense. On May

16, 1996, Pan diagnosed the defendant as having moderate mental

retardation and determined defendant was unfit to stand trial. He

noted that four other psychiatrists had reached the same conclusion.

In 1996, Pan concluded it was not likely that defendant could be

restored to fitness any time in the near future. On August 31, 1999,

Pan again evaluated defendant. Dr. Pan testified that defendant was

unfit for trial and would not become fit in the future. Pan also

rendered his opinion that defendant was incapable of understanding

Miranda warnings.

	By way of explanation, Dr. Pan testified that defendant could

give simple answers to questions she understood, but she was not

capable of abstract thinking. Although she knew she was born in

1941, defendant told Dr. Pan, in the course of his 1999 interview, that

she was 29 years old. Her thinking was “idiosyncratic,” meaning that

she was often “not on the same page” as the person questioning her.

She would frequently answer questions in a completely irrelevant

manner. When asked the meaning of her right to remain silent, she

responded that she already had an attorney. When Pan asked her what

it meant that anything she said could be used against her in a court of

law, she responded, “he know I didn’t do those two crimes. That is

something I didn’t do.”

	Dr. Linda Wertzel, a clinical psychologist, also testified for the

defense. Wertzel had examined defendant in 1994 and testified to her

findings. Wertzel concluded that defendant was mentally retarded with

an IQ of 54. Wertzel described her observations of defendant at that

time:

			“[S]he was flat and passive, kind of emotionally blunted,

no affect. She was overweight. She was–her clothing was

dirty. Her hygiene was very poor. She was picking at her skin

and nails and nose and ears. She was nonspontaneous in her

speech.”

Defendant could provide only “simple answers to direct questions and

really did not provide a narrative of information.” She stated her age

to be 29. Testing revealed that defendant functioned, mathematically,

at a kindergarten level. Defendant was unsure if she had ever gone to

school. She could not read or write.

	Wertzel administered a test designed to measure a person’s ability

to express thoughts accurately and coherently and to comprehend

what other people say. She determined that defendant could only

express herself at a “very simple childish level” and she could not

comprehend more than a one-step command. Wertzel said the test

involved asking the subject to touch colored shapes in sequence.

Wertzel first asked defendant to touch a red square (one-step

command), then asked her to touch a red square and a yellow circle

in sequence (two-step command). Defendant could not get beyond the

one-step command. Defendant was inconsistent in her ability to

identify shapes correctly. She displayed impairment on both motor

speed and motor dexterity tests. She could not accurately draw and

number the face of a clock.

	When asked the meaning of various Miranda warnings, defendant either said she did not know or she offered an irrelevant or

inappropriate response. Eventually, defendant became frustrated and

the interview was terminated. As a result of her 1994 examination of

defendant, Wertzel concluded that defendant was illiterate, mentally

retarded, “only minimally able to care for her basic daily needs, her

comprehension of her current circumstances was marginal, and she

was unable to understand her Miranda rights.

	Wertzel examined defendant again in October 1999 and

concluded she remained unable to understand her Miranda warnings. Dr. Wertzel testified that defendant’s behavior was “pretty similar” to

her first encounter with defendant. Defendant “acted as though she

had only been in jail for about a week.” She identified Kennedy as

president of the United States. Wertzel administered the Peabody

Picture Vocabulary Test, in which the subject is shown a pictures and

is asked to name activities or pastimes represented therein. Defendant

scored the age equivalent of a five-year-old. After her 1999

examination of defendant, Wertzel again concluded it was “highly

unlikely” that defendant ever had the ability to comprehend or waive Miranda rights.

	Wertzel described defendant as “sort of like a child, *** unsure

of what is real and what is imagined, what is an actual memory, what

is told to them.” Moreover, she stated that defendant does not tolerate

stress very well and is “suggestible.” Wertzel described more than one

instance where she was able to lead defendant in the questioning to

get the information desired.

	In rebuttal, the State called Assistant State’s Attorney Stan

Gonsalves. Gonsalves testified he went to Area One on June 25, 1993,

to interview defendant. Prior to meeting defendant, detectives told

Gonsalves defendant was “a little slow.” Gonsalves advised defendant

of her Miranda warnings. Gonsalves said defendant was “just quiet at that point.” Defendant did not respond verbally when she was asked

if she understood her rights. Defendant nodded her head affirmatively

after Gonsalves finished giving her the Miranda warnings. Cameron was in the room, but did not say anything. Gonsalves testified that

defendant was responsive to his questions during the interrogation,

but he conceded that communicating with defendant was “difficult”

and “slow.” The record does not indicate whether Gonsalves’

questions to defendant were suggestive or leading, or whether they

called for a narrative response.

	After hearing testimony in this matter, the circuit court rendered

its ruling. The judge’s initial statements indicate that he believed the

issue in this case was the same as that presented in People v. Bernasco, 138 Ill. 2d 349 (1990), cited by defendant. The court perceived the issue as “two fold”: whether defendant’s statements

were obtained free of police coercion, misconduct, or overreaching;

and whether “a valid Miranda waiver must be knowing and intelligent.”

	Citing Colorado v. Connelly, 479 U.S. 157, 93 L. Ed. 2d 473, 107 S. Ct. 515 (1986), the circuit court stated that a confession is not

rendered involuntary under the federal due process clause without

“some police overreaching.” In the circuit court’s view, there was no

evidence suggesting that the police had done anything to coerce the

defendant to give a statement. The court ruled that defendant was not

in custody until after she had confessed to Winstead; consequently,

Miranda warnings were not required prior to that time, and any statements she made before that point were admissible. The circuit

court determined that Winstead had “gratuitously offered” defendant Miranda warnings on the morning of her arrest, even though the warnings were not required by the attendant circumstances. The court

said there was “no dispute” that defendant was mentally handicapped,

but ruled “that goes to the weight of those statements, not to whether

those statements were admissible.”

	The court concluded that defendant was in custody following her statement to the Winstead and she did not knowingly and intelligently

waive her Miranda rights. In so ruling, the court relied upon the uncontroverted testimony of Pan and Wertzel, and that of law

enforcement personnel who observed defendant’s actions and

demeanor during periods of interrogation. The court specifically

mentioned “the testimony of Winstead about how she acted and

[Assistant] State’s Attorney Gonsalves that she did not respond

verbally [when] given her rights. She merely stood silent.”

	Based upon the uncontested testimony of the witnesses, the court

suppressed the statement defendant made to Assistant State’s

Attorney Gonsalves following her arrest. The court, however, denied

defendant’s motion with respect to any statements made before defendant was in custody.

	On appeal, the State posits a single issue: whether defendant’s

final “statement” or “confession” to Winstead–which, on the basis of

the trial court’s ruling, the State assumes was noncustodial–was

“constitutionally voluntary because it was given without police

coercion”–a second assumption based upon conclusions the trial court

drew from undisputed facts. Defendant continues to argue, inter alia, that defendant was in custody when she gave the allegedly inculpatory

statement to Detective Winstead and that she did not effectively waive

her Miranda rights. The State disputes the former contention, but not the latter.

	We begin our analysis by identifying the relevant standard of

review and the burden of proof. A court of review will accord great

deference to the trial court’s factual findings, and will reverse those

findings only if they are against the manifest weight of the evidence;

however, the court will review de novo the ultimate question posed by the legal challenge to a trial court’s ruling on a motion to suppress.

People v. Sorenson, 196 Ill. 2d 425, 431 (2001); People v. Schoening, 333 Ill. App. 3d 28, 31-32 (2002). Where a defendant challenges the

admissibility of his confession through a motion to suppress, the State has the burden of proving the confession was voluntary by a

preponderance of the evidence. 725 ILCS 5/114–11(d) (West 2000); In re G.O., 191 Ill. 2d 37, 49 (2000). The concept of voluntariness includes proof that the defendant made a knowing and intelligent

waiver of his privilege against self-incrimination and his right to

counsel. People v. Reid, 136 Ill. 2d 27, 54 (1990); People v. Joya, 319 Ill. App. 3d 370, 378 (2001).

	In this case, the trial court determined that defendant was unable

to effectively waive her Miranda rights, based upon the unrefuted testimony of the doctors who had examined her and law enforcement

personnel who observed her actions and demeanor. Consequently, the

trial court granted the defendant’s motion to suppress as to statements

allegedly made by defendant after she was formally arrested. The

court denied defendant’s motion with respect to her earlier statement

to Winstead only because the court believed she was not ‘in custody”

for purposes of Miranda at that time. Since defendant continues to argue that she was in custody when she was interrogated by Winstead at the police station on June 25, 1993, we first address the custodial

issue.

	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.”

Thompson v. Keohane, 516 U.S. 99, 112, 133 L. Ed. 2d 383, 394, 116 S. Ct. 457, 465 (1995); United States v. Badmus, 325 F.3d 133, 138 (2d Cir. 2003). See also Berkemer v. McCarty, 468 U.S. 420, 442, 82 L. Ed. 2d 317, 336, 104 S. Ct. 3138, 3151 (1984) ( “the only

relevant inquiry is how a reasonable man in the suspect’s position

would have understood his situation”). Thus, in determining whether

a person is “in custody” for purposes of Miranda, a court should first ascertain and examine the circumstances 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. People v. Patel, 313 Ill. App. 3d 601, 604 (2000). With respect to the latter inquiry, the accepted test is what a

reasonable person, innocent of any crime, would have thought had he or she been in the defendant’s shoes. People v. Fair, 159 Ill. 2d 51, 67 (1994), quoting People v. Wipfler, 68 Ill. 2d 158, 166 (1977).

	When examining the circumstances of interrogation, the 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. See People v. Lucas, 132 Ill. 2d 399, 417 (1989); People v. Fletcher, 328 Ill. App. 3d 1062, 1073 (2002); People v. Armstrong, 318 Ill. App. 3d 607, 613 (2000); Patel, 313 Ill. App. 3d at 604-05; People v. Rivera, 304 Ill. App. 3d 124, 128 (1999); People v. Savory, 105 Ill. App. 3d 1023, 1028 (1982). Although it is generally irrelevant that the interrogating officer subjectively viewed the

individual under questioning as a suspect, the officer’s beliefs, if

conveyed by word or deed to the individual being questioned, are relevant to the extent that they would affect how a reasonable person

in the position of the individual being questioned would have gauged

the breadth of his freedom of action. Stansbury v. California, 511 U.S. 318, 324, 128 L. Ed. 2d 293, 299, 114 S. Ct. 1526, 1529 (1994);

Patel, 313 Ill. App. 3d at 604.  Moreover, where the investigating officer is aware of particular characteristics or traits of the individual

that make him or her particularly vulnerable to the impression that he

or she is in custody, and the officer exploits those characteristics in

questioning, that, too, is a relevant  factor in determining whether the

individual is “in custody” for purposes of Miranda.  See United States v. Erving L., 147 F.3d 1240, 1248 (10th Cir. 1998) (limited capacity to understand, and other particular personality traits,  may be relevant

to custody question where officers are aware of those traits and they

influence the actions of the officers); cf. United States v. Macklin, 900 F.2d 948, 951 (6th Cir. 1999) (no indication that the police were

aware of defendants’ mental deficiencies and the officers repeatedly

advised defendants that they were not under arrest and did not have

to answer questions).

	As we consider the age, intelligence, and mental makeup of the accused d–and an investigating officer’s awareness and exploitation of

those characteristics– i in our examination of the circumstances

surrounding the interrogation, so those factors are analytically intertwined with the reasonable-person prong of the custodial

question. Indeed, other courts have incorporated these factors into the

reasonable-person standard itself in varied circumstances involving

investigatory interaction between the police and citizens. See United States v. Zapata, 997 F.2d 751, 759 (10th Cir. 1993) (notwithstanding reasonable-person standard, attributes such as age, education and

intelligence of the accused have been recognized as relevant in

determining whether consent was voluntary); United States v. Little, 18 F.3d 1499, 1505 (10th Cir. 1994) (in applying the reasonable-

person standard to a consent to search issue, the “particular personal

traits *** of the defendant” may become relevant *** if the police

officer knows of the personal traits or characteristics and they

influence his or her conduct); Commonwealth v. Reid, 571 Pa. 1, 28, 811 A.2d 530, 546 (2002) (when considering whether consent was

voluntarily given, a “reviewing court should evaluate the

characteristics of the accused, the interaction between the accused and

the police, and assess how a reasonable person in the accused’s shoes

would have reacted to that interaction”); United States v. Montgomery, 14 F.3d 1189, 1194 (7th Cir. 1994) (even when examining a noncustodial interrogation, a court should look to “the

characteristics of the accused and the details of the interrogation” to

determine whether a reasonable person would have felt coerced);

United States v. Cichon, 48 F.3d 269, 276 (7th Cir. 1995) (same); United States v. Oliver, 142 F. Supp. 2d 1047, 1051 (N.D. Ill. 2001) (same).

	The justification for incorporating individual general and readily discernible characteristics of the subject-actor into the reasonable-person standard logically must apply in this situation as well. If, as is the case, we are

concerned with what a reasonable person “in the defendant’s shoes”

(see Lucas, 132 Ill. 2d at 418) would have thought about his or her freedom of action, the reasonable person we envision must at least

wear comparable footwear; otherwise, we ought to simply abandon

the legal charade that the defendant’s characteristics, perspective and

perception matter at all.

	Recognizing this principle, the Ninth Circuit Court of Appeals has suggested the applicable standard should indeed be modified in this

context, where a juvenile is concerned, to reflect what a reasonable

juvenile would have thought in defendant’s position. Alvarado v. Hickman, 316 F.3d 841, 848 (9th Cir. 2002), cert. granted, ___ U.S. ___, 156 L. Ed. 2d 703, 124 S. Ct. 45 (2003). In its analysis, the

Alvarado court first recited the now firmly established legal principle that “juvenile defendants are, in general, more susceptible to police coercion

than adults; as such, due process demands that a defendant’s juvenile

status be taken into consideration when determining the proper

procedural safeguards that attach to a custodial interrogation.” Alvarado, 316 F.3d at 843. The Alvarado court then reasoned, “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. Next, the court seemingly sanctioned a reasonable-juvenile standard to be applied

to the determination of custodial interrogation. The Alvarado court quoted, with special emphasis, from United States v. Erving L., 147 F.3d 1240, at 1248 (10th Cir. 1998):

		“ ‘Given these facts, a reasonable juvenile in E.L.’s position would not have believed that the officers had curtailed his

freedom of movement to a degree associated with formal

arrest.’ ” (Emphasis in original.) Alvarado, 316 F.3d at 848, quoting Erving L., 147 F.3d at 1248.

The Alvarado court then observed, “When we survey the landscape of state court decisions, we note that every jurisdiction that has squarely

addressed the issue has ruled that juvenile status is relevant to the ‘in

custody’ determination, either as a factor in the totality of circumstances

test, or by way of modification to the reasonable person standard.” (Emphasis added.) Alvarado, 316 F.3d at 850 n.5 (collecting cases). See generally State v. Jason L., 129 N.M. 119, 126, 2 P.3d 856, 863 (2000) (characteristics such as whether the person being questioned is a child or

an adult are objective and relevant to the question of whether a reasonable

person would feel free to terminate questioning and leave); Ramirez v. State, 739 So. 2d 568, 574 (Fla. 1999) (applying “reasonable juvenile” standard to determine whether defendant would have believed he was in

custody at the time of the interrogation); State v. Smith, 546 N.W. 2d 916, 923 (Iowa 1996) (“it is appropriate to consider the age of the

defendant as an additional factor in making a determination as to custody

status”); In re D.A.R., 73 S.W.3d 505, 511 (Tex. Ct. App. 2002) (“We believe the facts here establish that a reasonable thirteen-year-old would

have believed he was in custody”); In re Loredo, 125 Or. App. 390, 394, 865 P.2d 1312, 1315 (1993) (custodial question entailed inquiry into what a reasonable person of the child’s age, knowledge and experience would

have thought); In re Robert H., 194 A.D.2d 790, 791, 599 N.Y.S. 621, 623 (1993) (“[A] reasonable 15-year-old, in the position of Robert, would

not have believed he was free to leave the scene”); In re Rennette B., 281 A.D.2d 78, 85, 723 N.Y.S. 31, 37 (2001) (same). In this context, our

own appellate court has modified the reasonable-person standard, where

a juvenile is involved, considering what a reasonable juvenile would have

thought about his or her custodial status. See In re J.W., 274 Ill. App. 3d 951, 960 (1995) (“Although J.W. had not been formally arrested *** a

reasonable 14-year-old person would have been entitled to believe *** he

was in police custody and not free to leave”). See also People v. Armstrong, 318 Ill. App. 3d 607, 614-15 (2000).

	The same rationale that requires modification of the reasonable

person standard to take into account the general characteristics of

juveniles also militates in favor of such a modification where the mentally

retarded are concerned. “[M]ental retardation may have a significant

impact on an individual who finds himself involved with the criminal

justice system, particularly in the context of confessions and

interrogations. *** Many mentally retarded people may be less likely to

withstand police coercion or pressure due to their limited communication

skills, their predisposition to answer questions so as to please the

questioner rather than to answer the question accurately, and their

tendency to be submissive.” L. Entzeroth, Putting the Mentally Retarded Criminal Defendant to Death: Charting the Development of a National

Consensus to Exempt the Mentally Retarded from the Death Penalty, 52 Ala. L. Rev. 911, 917 (2001). See also P. Hourihan, Earl Washington’s Confession: Mental Retardation and the Law of Confessions, 81 Va. L. Rev. 1471, 1473 (1995) (“Mentally retarded persons are more susceptible

to coercion, more likely to confess falsely, and less likely to understand

their rights than people of normal intellectual ability”). 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. The circumstances of the

instant case amply demonstrate the point.

	Including the initial interrogation of June 25, 1993, defendant was

questioned by police six times before she was formally arrested: four

times at a police facility, once at her home and once at the scene of the

crime. The police enlisted the aid and consent of Cameron–who apparently represented herself to be defendant’s sister and legal

guardian–in order to question defendant. Cameron acted as a translator

of sorts and actually facilitated the police interrogation. Her role in the

process of interrogation is not what we characterize as that of a family

member concerned with defendant’s welfare. It is not evident from the

record that defendant ever verbally assented to police interrogation. On

every occasion that she was questioned outside her home, the police

transported defendant. Two detectives were always present during the

interrogations. Although it is not clear from the record whether defendant

was present when Winstead advised Cameron that defendant was a

suspect, even a mentally retarded suspect might well have regarded herself

as such after Winstead had expressed disbelief of her version of events

and had asked her to take a polygraph examination. We also note that

Winstead for the first time read defendant her Miranda rights on June 25, something he had not done in previous encounters. We have no doubt

whatsoever that a reasonable person with defendant’s mental capacity

would have believed he or she was in custody and not free to leave the

police station.

	In fact, our research has disclosed a case involving similar

circumstances, a person of apparently normal intelligence, and a determination that the interrogation was custodial. In United States v. Wauneka, 770 F.2d 1434 (9th Cir. 1985), defendant was questioned by law enforcement officials on four occasions, three on the day of his

confession. On the first three, he was transported from his residence to a

Bureau of Indian Affairs office by plain clothes agents. When he was

picked up the last time for further questioning, Wauneka was transported

by two armed officers and was placed in a large conference room with

four or five officers who each had an opportunity to question him. The

hour-long interrogation eventually turned accusatory. During a break,

Wauneka, who was then 18 years old, broke down crying. FBI agents

resumed the questioning despite the fact that Wauneka was visibly shaken

by this ordeal and eventually obtained a confession. Wauneka had no

means of transportation, and he was never offered an opportunity to leave

the Bureau’s office prior to his confession. On these facts, the court of

appeals upheld a district court ruling that Wauneka was “in custody” for

purposes of Miranda when he confessed. The court stated, “A reasonable innocent person in such circumstances probably would have concluded that he was not free to leave.” United States v. Wauneka, 770 F.2d 1434, 1438-39 (9th Cir. 1985).

	Like Wauneka, the defendant in this case was repeatedly taken by

officers to a law enforcement facility and questioned. As in Wauneka, the instant defendant was never told she could leave the station when she

wished; she was taken home by the police when they were finished with

her. By the time of the encounter on June 25, the atmosphere of the

interrogation had turned accusatory: defendant had taken a polygraph

examination and had been designated a suspect by Winstead. However,

defendant, unlike Wauneka, is mentally retarded. She was only at the police station because her purported guardian/sister agreed to police

requests that she accompany them there. Her options, no doubt, seemed

very limited indeed. 

	Under the circumstances, a reasonable person with defendant’s

mental capacity would not have felt free to leave.  In this case, the police

knowingly exploited defendant’s mental retardation. While the custody

inquiry may not “place upon the police the burden of anticipating the

frailties or idiosyncracies of every person whom they encounter,”

(Berkemer, 468 U.S. at 442 n. 35)  neither does it sanction the exploitation of known frailties or idiosyncracies by the government. 

Modification or refinement of the reasonable person standard is

appropriate where, as here, such exploitation has occurred. We conclude

that the circuit court erred in ruling defendant was not in custody when

she allegedly gave an inculpatory statement to Detective Winstead on

June 25, 1993.

	Having determined that Winstead’s interrogation of defendant on

June 25 was custodial, we now address the question of whether

defendant knowingly and intelligently waived her Miranda rights. Custodial interrogation is, of course, inherently coercive and “ ‘trades on

the weakness of individuals.’ ” Dickerson v. United States, 530 U.S. 428, 435, 147 L. Ed. 2d 405, 414, 120 S. Ct. 2326, 2331 (2000), quoting

Miranda v. Arizona, 384 U.S. 436, 455, 16 L. Ed. 2d 694, 712, 86 S. Ct. 1602, 1618 (1966). As we have noted previously herein, it is generally

recognized that the mentally retarded are considered more susceptible to

police coercion or pressure than people of normal intellectual ability, they

are predisposed to answer questions so as to please the questioner rather

than to answer accurately, they are more likely to confess to crimes they

did not commit, they tend to be submissive, and they are less likely to understand their rights. See M. McCloud, Words Without Meaning: The Constitution, Confessions and Mentally Retarded Suspects, 69 U. Chi. L. Rev. 495, 503, 538 (2002); L. Entzeroth, Putting the Mentally Retarded Criminal Defendant to Death: Charting the Development of a National

Consensus to Exempt the Mentally Retarded from the Death Penalty, 52 Ala. L. Rev. 911, 917 (2001). P. Hourihan, Earl Washington’s Confession: Mental Retardation and the Law of Confessions, 81 Va. L. Rev. 1471, 1473 (1995).

	However, evidence of a defendant’s limited mental or intellectual

capacity at the time of a confession, alone, does not establish that he or

she was incapable of waiving Miranda rights. Limited intellectual capacity is one of several factors to be considered in this regard. People v. Foster, 168 Ill. 2d 465, 476 (1995); People v. Mahaffey, 165 Ill. 2d 445, 462 (1995).

	Nevertheless, “[w]aiver of a constitutional right is valid only if it is

clearly established that there was ‘an intentional relinquishment or

abandonment of a known right ***.’ ” People v. Johnson, 75 Ill. 2d 180, 187 (1979), quoting Johnson v. Zerbst, 304 U.S. 458, 464, 82 L Ed. 1461, 1466, 58 S. Ct. 1019, 1023 (1938). See People v. McClanahan, 191 Ill. 2d 127, 137 (2000). Waivers must not only be voluntary, but must

be knowing and intelligent acts in the sense that they are done with

sufficient awareness of the relevant circumstances and likely

consequences. McClanahan, 191 Ill. 2d at137; Bernasco, 138 Ill. 2d at 364-65.

	A valid waiver of Miranda rights must be knowingly and intelligently made. Bernasco, 138 Ill. 2d at 364-65. A criminal suspect is not required to know and understand every possible consequence of a waiver of the

Fifth Amendment privilege for it to be knowingly and intelligently made. Colorado v. Spring, 479 U.S. 564, 574, 93 L. Ed. 2d 954, 966, 107 S. Ct. 851, 857 (1987). However, in order to effect an intelligent and knowing

waiver of Miranda rights, a defendant must have “ ‘ “a full awareness of both the nature of the right being abandoned and the consequences of the

decision to abandon it.” ’ ” Bernasco, 138 Ill. 2d at 360, quoting Patterson v. Illinois, 487 U.S. 285, 292, 101 L. Ed. 2d 261, 272, 108 S. Ct. 2389, 2395 (1988). The defendant need not understand far-reaching

legal and strategic effects of waiving his or her rights or appreciate how

widely or deeply an interrogation may probe; however, the defendant

must at least understand basically what those rights encompass and minimally what their waiver will entail. Mahaffey, 165 Ill. 2d at 462, quoting Bernasco, 138 Ill. 2d at 363. Whether a waiver is knowing and intelligent is determined by the particular facts and circumstances of the case, “including the background, experience, and conduct of the accused.” Johnson v. Zerbst, 304 U.S. at 464, 82 L. Ed. at 1466, 58 S. Ct. at 1023; In re J.J.C., 294 Ill. App. 3d 227, 233 (1998).

	It is all too obvious, as the trial court concluded, that the defendant in this case did not knowingly and intelligently waive her Miranda rights. The State does not even attempt to argue that point. Winstead advised defendant of her Miranda warnings from a standard form without additional explanation. Defendant made no verbal response; she merely nodded her head in an affirmative manner. Winstead later recalled that Cameron told defendant something to the effect of: “He’s telling you that you don’t have to talk to me and that you’re not going to be in trouble or something.” Defendant nodded her head in agreement and “seemed to understand what her sister was saying.” Defendant never verbally indicated that she understood, and she did not sign a waiver form. Indeed, it is unclear to what extent defendant ever responded to, or communicated with, Winstead. He acknowledged that Cameron “initially” acted as an “interpreter,” and it is obvious from his testimony that she was still acting in that capacity on June 25, 1993, despite Winstead’s suggestion to the contrary: “After a while, after I talked to [defendant] somewhat, I could begin to understand or she’d answer me or she wouldn’t.” That statement is hardly a testament to an acceptable level of communication and understanding between Winstead and defendant. The record does not indicate whether Winstead’s questions to defendant were suggestive or leading, or whether they called for a narrative response.

	Assistant State’s Attorney Gonsalves testified that he advised defendant of her Miranda warnings, and she was “just quiet at that point.” Defendant did not respond verbally when she was asked if she understood her rights. Defendant simply nodded her head affirmatively after Gonsalves finished giving her the Miranda warnings. Cameron was in the room, but did not say anything. Gonsalves testified that defendant was responsive to his questions during the interrogation, but he conceded that communicating with defendant was “difficult” and “slow.” The record does not indicate whether Gonsalves’ questions to defendant were suggestive or leading, or whether they called for a narrative response. It does not appear from the record that defendant had any prior experience with the criminal justice system.

	Dr. Philip Pan characterized defendant’s mental impairment as moderate mental retardation. He determined her condition was profound to a degree that she was unfit to stand trial. He noted that four other psychiatrists had reached the same conclusion. Pan rendered his opinion that defendant was incapable of understanding Miranda warnings. He noted that her thinking was “idiosyncratic,” meaning she was often “not on the same page” as the person questioning her. She would frequently answer questions in a completely irrelevant manner.

	Dr. Linda Wertzel, a clinical psychologist, examined defendant in 1994 and testified to her findings. Wertzel concluded that defendant was mentally retarded with an IQ of 54. Wertzel stated that defendant could provide only “simple answers to direct questions and really did not provide a narrative of information.” Defendant functioned, mathematically, at a kindergarten level. Defendant was unsure if she had ever gone to school. She could not read or write. Wertzel determined that defendant could only express herself at a “very simple childish level” and she could not comprehend more than a one-step command. Defendant’s comprehension of her circumstances was marginal, and she was unable to understand her Miranda rights.

	Wertzel examined defendant again in October of 1999 and concluded defendant remained unable to understand her Miranda warnings. Wertzel then administered the Peabody Picture Vocabulary Test to defendant. Defendant scored the age equivalent of a five-year-old. After her 1999 examination of defendant, Wertzel determined it was “highly unlikely” that defendant ever had the ability to comprehend or waive Miranda rights. Wertzel described defendant as “sort of like a child, *** unsure of what is real and what is imagined, what is an actual memory, what is told to them.” Moreover, she stated that defendant does not tolerate stress very well and is “suggestible.” Wertzel described more than one instance where she was able to lead defendant in the questioning to get the response desired.

	The uncontroverted testimony in this case demonstrates that defendant did not knowingly and intelligently waive her Miranda rights. No other conclusion is possible based on the evidence adduced at the suppression hearing. Defendant was subjected to repeated interrogation that was actually facilitated by her purported sister/guardian. By repeatedly taking defendant where they wanted, when they wanted, the police reinforced their authority and control over her. Defendant apparently had no prior experience with the criminal justice system. She was clearly a suspect by the time she took a polygraph test and was thereafter questioned on June 25, 1993. The experts who testified were unanimously of the opinion that defendant was incapable of understanding and waiving her Miranda rights. Aside from the State’s testimony regarding defendant’s ambiguous nods, there was no evidence even suggesting that defendant waived her rights. In fact, the minimal level of communication between law enforcement officials and the defendant throughout the investigation of this case is a matter of great concern to this court and should have been to the officers involved, who proceeded to repeatedly question defendant despite her obvious impairment and vulnerability. We note that the degree of defendant’s mental impairment is comparable to that of the defendants in Bernasco and People v. Robinson, 301 Ill. App. 3d 634 (1998). In both cases, confessions were suppressed. Bernasco, 138 Ill. 2d at 350-51; Robinson, 301 Ill. App. 3d at 643.

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

	Both confessions defendant allegedly gave on June 25, 1993, were made under circumstances custodial in nature. As defendant was incapable of knowingly and intelligently waiving her Miranda rights, both statements should have been suppressed. We express no opinion regarding the admissibility of statements defendant may have made prior to that date. The State’s argument on appeal concerns only defendant’s “confession to the detectives.” We, therefore, affirm the judgment of the appellate court insofar as we reverse and remand for further suppression proceedings and a new discharge hearing. We modify the appellate court’s judgment to the extent that we limit the scope of any further suppression proceedings to statements defendant may have made prior to June 25, 1993.

	Given our disposition, we need not reach the issue upon which the appellate court disposed of this case. We may affirm the result below on any basis that is supported by the record. People v. Huff, 195 Ill. 2d 87, 91 (2001); In re Application of the Cook County Treasurer, 185 Ill. 2d 428, 436 (1998).

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

Affirmed as modified;

cause remanded.