|
COURT OF APPEALS DECISION DATED AND RELEASED August
24, 1995 |
NOTICE |
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A party may file with the Supreme Court a petition to review an
adverse decision by the Court of Appeals.
See § 808.10 and Rule 809.62,
Stats. |
This opinion is subject to further editing. If published, the official version will appear in the bound
volume of the Official Reports. |
No. 94-2735
STATE OF WISCONSIN IN
COURT OF APPEALS
DISTRICT IV
IN THE
INTEREST OF JENNIFER A.J.,
a
child under the age of 18:
JENNIFER
A.J.,
Appellant,
v.
STATE
OF WISCONSIN,
Respondent.
APPEAL
from an order of the circuit court for Dane County: GEORGE A.W. NORTHRUP, Judge.
Affirmed.
Before
Eich, C.J., Sundby and Vergeront, JJ.
VERGERONT,
J. Jennifer A.J., a minor, appeals
from a dispositional order transferring her legal custody to the Wisconsin
Department of Health and Social Services, Division of Youth Services until she
reaches the age of twenty-one.[1] The order was based on Jennifer's entry of
an Alford plea to one count of attempted first-degree intentional
homicide, contrary to §§ 940.01(1) and 939.32, Stats., and no contest pleas to one count of physical abuse
of a child, contrary to § 948.03(2)(a), Stats.,
and one count of carrying a concealed weapon, contrary to § 941.23, Stats., in a delinquency petition. Jennifer raises two issues on appeal. First, whether the trial court erred in
refusing to suppress inculpatory statements she made to law enforcement
officers while in custody. We conclude
the trial court properly refused to suppress the statements. Second, whether the trial court erroneously
exercised its discretion at the disposition stage. We conclude it did not.
Accordingly, we affirm.
BACKGROUND
The
pertinent facts are not disputed.
Jennifer was arrested and taken into custody by a deputy from the Dane
County Sheriff's Department at approximately 2:00 a.m. on October 10, 1993, as
a suspect in an attempted homicide. A
fifteen-year-old boy had been shot with Jennifer's father's handgun at
approximately 1:15 a.m. outside of Jennifer's residence. Jennifer was fifteen years old and in the
ninth grade at the time of the arrest.
She was taken to a conference room in the Dane County Sheriff's
Department and seated at a table. Prior
to any questioning, one of the detectives present read Jennifer her rights
under Miranda v. Arizona, 384 U.S. 436 (1966). After indicating that she understood her
rights, Jennifer stated that she was willing to talk about what happened. The interrogation concluded at approximately
7:30 a.m. During the interrogation,
Jennifer confessed to the shooting.
A
delinquency petition was filed against Jennifer alleging counts of attempted
first-degree intentional homicide, physical abuse of a child, and carrying a
concealed weapon. Jennifer denied the
charges and entered a plea of not responsible by reason of mental disease or
defect. She then filed a motion to
suppress the statements she made to the detectives during the
interrogation. In the motion, Jennifer
contended that her waiver of Miranda rights was not knowing and
intelligent.
At
the suppression hearing, the detectives involved in the interrogation testified
that Jennifer was read her Miranda rights at approximately 3:00
a.m. These rights were read slowly,
taking two minutes to read through.
After each right was read, Jennifer replied that she understood that right. The detectives testified that while
Jennifer's Miranda rights were being read, Jennifer maintained
eye contact and, on a couple of occasions, nodded her head. At no time did Jennifer turn away, fidget or
stare off in any other direction.
Jennifer did not indicate that she was tired, and stated that she did
not want to see her parents. At the
completion of the Miranda warnings, Jennifer indicated that she
was willing to make a statement. The
detectives testified that there were no visible signs that Jennifer was not
understanding any verbal communications made to her.
A
psychologist called by Jennifer, William Merrick, testified that he had
examined Jennifer and concluded that Jennifer has a learning disability,
referred to as an auditory deficit disorder, which causes her to have
difficulty understanding what is being said to her. According to Merrick, Jennifer has "very moderate to severe
difficulties in anything having to do with language processing." Merrick testified that Jennifer's verbal
I.Q. is 74, which, according to Merrick, is "borderline retarded";
her nonverbal I.Q. is 108, which is in the upper end of normal. Merrick stated that the significance of this
low verbal I.Q. is that Jennifer has a "real tough time" with
manipulation of language.
When
asked whether he had an opinion to a reasonable professional probability as to
whether Jennifer was capable of understanding her Miranda rights,
assuming that the rights were read at 3:00 a.m., that the Miranda-rights
card used by the detective was written at an eighth-grade reading level, that
Jennifer's emotional state was flat-lined, sullen and reserved, that there were
no distractions in the room, that Jennifer maintained eye contact with the
detective and did not appear to be distracted, that the questions were read one
at a time, that Jennifer replied that she understood each right, and that the
whole process took two minutes, Merrick replied:
She could have a very limited understanding of
these rights as read to her. And I'm
not sure that she didn't read them herself....
And at worse
[sic], if she were emotional, inattentive, and so on, that she would have a
very difficult, if not impossible, time in understanding or appreciating them.
Merrick
also testified that Jennifer would not be able to understand or appreciate the
meaning of the question on the Miranda-rights card that
asks: "Realizing that you have
these rights, are you now willing to answer questions or make a
statement?"
Jennifer's
learning disabilities specialist at McFarland High School, Kathryn McCosky,
also testified. According to McCosky,
the Miranda-rights card read to Jennifer was written at an
eighth-grade reading level.[2] She testified that after reading Jennifer's
file, it became evident that Jennifer had an auditory deficit disorder and that
"[j]ust hearing something would be the worse [sic] way for her to pick up
information." McCosky stated that
in the classroom setting, Jennifer would almost always say she understood oral
instructions when, in fact, she did not.
McCosky testified that Jennifer reads at between a third and
fourth-grade level, and that her ability to understand oral information is more
impaired than her ability to understand written material.
The
State called Jennifer's special education teacher at Indian Mounds Middle
School, Carol Stephenson. Stephenson
was directly responsible for Jennifer's special education programming for both
seventh and eighth grade. During these
grades, Stephenson spent approximately four hours a day with Jennifer. According to Stephenson, there were particular
behaviors that indicated Jennifer either was not paying attention or was not
understanding something. These included
a failure to make eye contact, fidgeting, twisting her hair, turning her body
away and getting angry. When presented
with a copy of the Miranda-rights warning card that was read to
Jennifer and asked whether she had an opinion to a reasonable professional
probability as to whether Jennifer was capable of understanding the card's
words and concepts, Stephenson replied:
Looking at this, based on what I would know
about Jennifer, it would pertain a lot to how this was presented to her. For instance, if I was to give an example
here, Jennifer has a hard time processing.
And a lot of that has to do with speed of presentation of information.
So, you would have
to say at a very slow speed, "You have the right to remain silent,"
stop, pause. I would then ask Jennifer
if she understood that. I would maintain
eye contact with her and wait for her to answer me yes or no. If she gave me an answer yes, I'd move on to
the next one.
When
asked whether she had an opinion to a reasonable professional probability as to
whether Jennifer was capable of understanding her Miranda rights,
assuming that the rights were read at 3:00 a.m., that while her rights were
being read she was maintaining eye contact and nodding her head in an
affirmative fashion, that her rights were read one at a time, that she was
asked "Do you understand that right?" after each right was read, that
she replied affirmatively after each question, that the entire procedure lasted
two minutes, and that she was not emotional, Stephenson replied, "If she
said yes, I accept the yes."
The
trial court denied Jennifer's motion to suppress her statements. Jennifer then entered an Alford
plea to the attempted first-degree intentional homicide count in the
delinquency petition and no contest pleas to the remaining counts, and was
adjudicated delinquent.
Following
a dispositional hearing, the trial court transferred Jennifer's legal custody
to the Wisconsin Department of Health and Social Services and committed her to
the Lincoln Hills School until her twenty-first birthday. As part of its dispositional discussion, the
court noted that in spite of life's pressures, adults and teenagers alike
"are accountable for their behavior.
They're responsible for their behavior."
MIRANDA WAIVER
Jennifer contends that
her waiver of rights under Miranda v. Arizona, 384 U.S. 436
(1966), was not knowing and intelligent.[3] When seeking admission of statements made
during custodial questioning, the State has the burden under Miranda
to show that the individual was advised of his or her constitutional rights,[4]
that he or she understood them, and that he or she intelligently waived
them. See State v. Beaver,
181 Wis.2d 959, 966, 512 N.W.2d 254, 256 (Ct. App. 1994).
The
parties dispute the State's burden of proof in establishing that a waiver of Miranda
rights was knowing and intelligent. In State
v. Jones, 192 Wis.2d 78, 532 N.W.2d 79 (1995), amended on denial of
reconsideration, 1995 WL 405686 (Wis. June 29, 1995), the Wisconsin Supreme
Court addressed the issue of whether a juvenile's waiver of Miranda
rights was knowing, intelligent and voluntary.
On reconsideration, the court stated that the State's burden of proof on
the waiver issue is not "beyond a reasonable doubt" as it had earlier
stated, but rather "by the preponderance of the evidence." In reaching this conclusion, the court
relied on State v. Beaver, 181 Wis.2d 959, 512 N.W.2d 254 (Ct.
App. 1994) and State v. Lee, 175 Wis.2d 348, 499 N.W.2d 250 (Ct.
App. 1993), both of which held that the State's burden of proving that an
individual's waiver of Miranda rights was knowing and intelligent
is by the preponderance of the evidence.
Jones involved a juvenile. Based on Jones, we conclude that the State's burden
of proof in establishing that a juvenile's waiver of Miranda
rights was knowing and intelligent is by the preponderance of the evidence.
On
review of a denial of a suppression motion, this court will not disturb the
trial court's findings of historical or evidentiary fact unless they are
clearly erroneous. See State
v. Mitchell, 167 Wis.2d 672, 682, 482 N.W.2d 364, 368 (1992). However, the application of constitutional
principles to the facts of a case is subject to independent appellate
review. State v. Esser,
166 Wis.2d 897, 904, 480 N.W.2d 541, 544 (Ct. App. 1992).
The
general rule is that the State establishes a prima facie case of a
proper Miranda waiver where the individual has been advised of
all of his or her rights under Miranda and the individual
indicates an understanding of such rights and is willing to make a statement. See
State v. Lee, 175 Wis.2d 348, 360, 499 N.W.2d 250, 255 (Ct. App.
1993). Once the State has established
its prima facie case, in the absence of countervailing evidence, the
statement should be admitted into evidence.
Id. at 361, 499 N.W.2d at 255.
We
conclude the State established a prima facie case for admission of
Jennifer's statements. It is undisputed
that a detective read Jennifer her Miranda rights and that
Jennifer indicated that she understood them and was willing to make a
statement.
In
considering the countervailing evidence, we must examine the totality of the
circumstances. Jones, 192
Wis.2d at 101, 532 N.W.2d at 88. The
totality of the circumstances analysis applies even if the individual is a
juvenile. State v. Woods,
117 Wis.2d 701, 722, 345 N.W.2d 457, 468 (1984). Relevant factors to consider include the juvenile's age,
experience, education, background, intelligence and conduct, as well as the
juvenile's capacity to understand the warnings given, the nature of his or her
rights and the consequences of waiving those rights. Jones, 192 Wis.2d at 101, 532 N.W.2d at 88; Woods,
117 Wis.2d at 722, 345 N.W.2d at 468.
We
are satisfied that the totality of the circumstances indicates that Jennifer
knowingly and intelligently waived her Miranda rights. The trial court found that the Miranda
rights were read to Jennifer slowly and carefully; that Jennifer was looking
directly and attentively at the detective while her rights were read, and was
nodding her head in an affirmative manner; that at no point during the reading
of her rights did Jennifer stare off, turn away or appear to be distracted;
that after each right was read, Jennifer was asked "Do you understand that
right" and Jennifer replied affirmatively; that the procedure took
approximately two minutes to complete; and that there were no visible signs
that Jennifer did not understand her rights.
These findings are not clearly erroneous.
While
testimony at the suppression hearing revealed that Jennifer has a learning
disability that affects her ability to understand information provided orally,
the psychologist and both special education teachers agreed that Jennifer's
ability to understand oral information in a given situation depends
significantly on the manner and circumstances in which the information is
presented. The special education
teacher that the trial court found had the most experience with Jennifer, Carol
Stephenson, testified that to a reasonable professional probability, Jennifer
would understand her Miranda rights if they were read slowly and
one at a time, if there were no distractions, if Jennifer maintained eye
contact and if Jennifer replied that she understood each right. It is undisputed that these were the
circumstances in which the Miranda rights were read to Jennifer.[5]
Although
the psychologist testified that Jennifer could have a very limited
understanding of the Miranda rights as read to her, he
acknowledged that none of the tests he conducted with Jennifer involved the
words or the concepts used in the Miranda-rights warning card and
that, prior to the hearing, he was not aware of the manner and circumstances in
which Jennifer was read her Miranda rights.
While
Kathryn McCosky did testify that "[j]ust hearing something would be the
worse [sic] way for her to pick up information," she did not state that
Jennifer would be incapable of understanding her Miranda rights
as read to her. Given the trial court's
finding that Stephenson had the most experience with Jennifer, it was within
the trial court's discretion to give more weight to Stephenson's testimony than
to McCosky's testimony on the issue of Jennifer's ability to understand oral
information.
The
fact that Jennifer was a minor does not, by itself, mean that her Miranda
waiver could not have been knowing and intelligent. Cf. In re Shawn B.N., 173 Wis.2d 343, 365,
497 N.W.2d 141, 148 (Ct. App. 1992) ("That Shawn was thirteen years old
does not prevent his statement from being voluntary, absent
coercion"). Moreover, although
Jennifer's parents were not present, Jennifer indicated that she did not want
her parents to be present. See Theriault
v. State, 66 Wis.2d 33, 46-48, 223 N.W.2d 850, 857 (1974) (presence of
a parent is not required for a minor to waive his or her right to remain
silent). Finally, there was nothing to
indicate that Jennifer was tired, sleepy or confused despite the fact that the Miranda
waiver occurred at 3:00 a.m. Cf.
State v. Verhasselt, 83 Wis.2d 647, 657-58, 266 N.W.2d 342, 347
(1978) ("Although late night interrogations and a defendant's lack of
sleep ordinarily weigh against the voluntariness of a confession ... these
concerns are offset ... by the fact that the interrogation took place shortly
after commission of the crime and that the defendant did not indicate that he
was tired or sleepy").
We
conclude that the State met its burden of proving by the preponderance of the evidence
that Jennifer's Miranda waiver was knowing and intelligent.
DISPOSITIONAL
ORDER
Jennifer
also contends that the trial court erroneously exercised its discretion in
taking adult sentencing factors--specifically, accountability and
responsibility--into account at a child's dispositional hearing.
A
trial court's disposition in a delinquency proceeding will not be reversed on
appeal absent an erroneous exercise of discretion. In re James P., 180 Wis.2d 677, 682, 510 N.W.2d
730, 732 (Ct. App. 1993). Discretion
contemplates a process of reasoning which yields a conclusion based on logic
and founded upon proper legal standards.
In re K.K.C., 143 Wis.2d 508, 510, 422 N.W.2d 142, 143-44
(Ct. App. 1988). A presumption of
reasonableness supports the court's disposition. In re James P., 180 Wis.2d at 682, 510 N.W.2d at
732.
At
the dispositional hearing, the trial court correctly stated that in a
delinquency disposition, the juvenile's best interests are the paramount
consideration. See
§ 48.01(2), Stats. The court concluded that the seriousness of
the offenses required Jennifer's commitment to the juvenile correctional
system, stating that she was a danger to the public and in need of restrictive
custodial treatment, not residential treatment. While the court did state that teenagers "are accountable
for their behavior ... [t]hey're responsible for their behavior", the
Wisconsin Supreme Court has stated that accountability and responsibility are
not irrelevant in juvenile cases. In
re R.W.S., 162 Wis.2d 862, 875-76, 471 N.W.2d 16, 21-22 (1991).
Jennifer
offers no other reason to reverse the dispositional order and no other reason
is apparent from the record. We
conclude the trial court did not erroneously exercise its discretion in the
disposition.
By
the Court.—Order affirmed.
Not
recommended for publication in the official reports.
No. 94-2735(D)
SUNDBY,
J. (dissenting). This case presents an
opportunity to resolve some troublesome questions as to police interrogation of
children of tender years and cognitive deficiencies. At the time of her arrest and interrogation, Jennifer was fifteen
years old. She had no previous contact
with the police. She has a verbal IQ of
74, which is considered "borderline retarded." She is enrolled in special education
classes. According to expert medical
testimony, Jennifer has "very moderate to severe difficulties in anything
having to do with language processing," and suffers from an auditory deficit
disorder (ADD) which inhibits her ability to understand what is said to
her. One of Jennifer's learning
disabilities specialists testified that because of Jennifer's ADD, "[j]ust
hearing something would be the wors[t] way for her to pick up information." The specialist also testified that Jennifer
reads at somewhere between a third- and fourth-grade reading level.[6] Finally, the specialist stated that at
school, Jennifer would almost always claim she understood instructions when she
did not.
The
police arrested Jennifer at approximately 2:00 a.m. on a charge of attempted
homicide. At approximately 3:00 a.m.,
one of the officers read Jennifer the Miranda[7]
warnings; she stated that she understood the rights she was giving up. The police officers then questioned her
until approximately 7:30 a.m. The
police did not inform Jennifer's parents that they had her in custody, although
they asked her whether she wanted them to call her parents, which she declined.
I
first address the burden of proof.
There is no dispute that the State must establish a juvenile's guilt
beyond a reasonable doubt. In re
Winship, 397 U.S. 358 (1970).
However, the admission of a confession or inculpatory statement is an
evidentiary matter.
I
also emphasize that analysis of a claimed Miranda waiver has two
components. First, was the waiver
voluntary? Second, was the waiver
knowing and intelligent? In State
v. Lee, 175 Wis.2d 348, 359, 499 N.W.2d 250, 255 (Ct. App. 1993), we
stated that even though a Miranda waiver may be voluntary because
of lack of police coercion, we must examine the additional waiver requirement
of knowing intelligence. We must also
recognize that what may not be coercive to an adult may be coercive to a child
of tender years. Also, the fact that
the State may show by a mere preponderance of the evidence that the waiver of
an adult was voluntary does not mean that that is the appropriate burden to
determine whether the waiver of a child was voluntary, knowing, and
intelligent.
On
reconsideration of State v. Jones, 192 Wis.2d 78, 532 N.W.2d 79
(1995) amended on denial of reconsideration, 1995 WL 405686 (June 29,
1995), the court substituted the "preponderance of the evidence"
burden for the "beyond a reasonable doubt" burden which it had
assumed from its past precedents was the correct burden. The court accepted the burden of proof
adopted by the United States Supreme Court in Colorado v. Connelly,
479 U.S. 157 (1986). However, Connelly
did not involve a child and did not involve the issue of whether defendant's
waiver was knowing and intelligent. In Connelly,
the defendant claimed that he was coerced by "voices" which told him
to confess to the murder of a young girl he killed in Denver sometime during
November 1982. Connelly,
479 U.S. at 160-62. The Court held that
the coercion which makes a confession involuntary is coercion by the state, not
God.
Because
Jones involved a juvenile, that case is now precedential on the
State's burden to show "voluntariness" of a juvenile's
confession. However, neither Connelly
nor Jones is precedential on the State's burden to show that a
child's confession was knowing and intelligent. Jones is not precedential on this point because the
court simply adopted the holding of Connelly that
"preponderance of the evidence" was the appropriate standard to apply
to the question of "voluntariness."
The State has a higher burden when it must show that a child's
confession was knowing and intelligent.
It is important that we
achieve congruence with the Seventh Circuit Court of Appeals on the state's
burden to show that a child's confession was knowing and intelligent. In the absence of that congruence, decisions
by Wisconsin state courts on these matters may be for naught if the defendant
can be assured that the Seventh Circuit will set him or her free on habeas. This happened in State v. Woods,
117 Wis.2d 701, 345 N.W.2d 457 (1984).
In Woods v. Clusen, 794 F.2d 293 (7th Cir. 1986), the
Seventh Circuit Court of Appeals affirmed the district court's grant of habeas
corpus relief to Woods, who was a juvenile. Woods/Clusen was a "voluntariness"
case. The federal courts found that the
police in interrogating Woods "overreached," with the result that
Woods's confession was involuntary. The
court said that police tactics violated the Fourteenth Amendment's guarantee of
fundamental fairness. 794 F.2d at
298. The court of appeals did not rule
on the state's burden of proof argument because the court concluded that under
either standard advanced by the state, affirmance of the district court ruling
was in order. Id. at 299
n.8.
I
believe that Jennifer's confession was coerced. I do not suggest that the police "overreached" as they
did in Woods; however, police interrogation is inherently
coercive. I submit that when the police
interrogate a child of tender years from 3:00 a.m. to 7:30 a.m. without a
parent, counsel or friend to stand at the child's side, coerciveness is
established which renders a confession involuntary. See Gallegos
v. Colorado, 370 U.S. 49, 53-54 (1962). What the Gallegos court stated is particularly apt
when applied to this case:
There is no guide
to the decision of cases such as this, except the totality of circumstances
that bear on the two factors we have mentioned. The youth of the petitioner, the long detention, the failure to
send for his parents, the failure immediately to bring him before the judge of
the Juvenile Court, the failure to see to it that he had the advice of a lawyer
or a friend--all these combine to make us conclude that the formal confession
on which this conviction may have rested ... was obtained in violation of due
process.
370 U.S. at 55 (citation omitted).
I
would hold that Jennifer's confession was involuntary, under either standard of
proof. However, I also conclude that Jennifer
did not knowingly and intelligently waive her constitutional rights. Regardless of the verdict on voluntariness,
I conclude that the state failed to show beyond a reasonable doubt that
Jennifer's waiver of her constitutional rights was knowing and intelligent.
The
United States Supreme Court has approved the totality-of-the-circumstances
approach for police interrogation of juveniles:
Th[e] totality-of-the-circumstances approach is adequate
to determine whether there has been a waiver even where interrogation of
juveniles is involved.... The totality
approach ... includes evaluation of the juvenile's age, experience, education,
background, and intelligence, and [inquiry] into whether he has the capacity to
understand the warnings given him, the nature of his Fifth Amendment rights, and
the consequences of waiving those rights.
Fare v. Michael C., 442 U.S. 707, 725 (1979) (emphasis added). The totality-of-the-circumstances test shows
that Jennifer did not knowingly and
intelligently waive her rights.
Police
officers arrested Jennifer at approximately 2:00 a.m. on the charge of
attempted homicide. The officers took
Jennifer to an interrogation room at the Dane County Sheriff's Department. There, at approximately 3:00 a.m., one of
the officers read Jennifer the Miranda warnings; she stated that
she understood the rights she was giving up.
The police officers then questioned her until approximately 7:30 a.m.
Jennifer
argues that her Miranda waiver was neither knowingly nor
intelligently made. I agree. The totality of the circumstances which I
have detailed shows that Jennifer was incapable of understanding the rights she
was giving up or the consequences of conviction of the possible charges against
her.
The
State argues that its expert found that Jennifer could have understood the
constitutional rights she was waiving because the police gave her the warning
"nice and easy," taking two minutes to read through. The possibility that Jennifer could have
understood constitutional rights which mature, intelligent adults may not
understand, does not satisfy the State's burden of proof. The record does not show that the police
explained to Jennifer the meaning or consequences of her waiver.
In
applying the totality-of-the-circumstances test to juveniles, certain factors
take on great significance. For
example, when the juvenile is as young as Jennifer, age is a factor which
weighs heavily against finding a knowing and intelligent waiver. In Haley v. Ohio, 332 U.S.
596, 601 (1948), the Supreme Court considered the alleged voluntary confession
of a fifteen-year-old boy:
But we are told
that this boy was advised of his constitutional rights before he signed the
confession and that, knowing them, he nevertheless confessed. That assumes, however, that a boy of
fifteen, without aid of counsel, would have a full appreciation of that advice
and that on the facts of this record he had a freedom of choice. We cannot indulge those assumptions. Moreover, we cannot give any weight to
recitals which merely formalize constitutional requirements. Formulas of respect for constitutional
safeguards cannot prevail over the facts of life which contradict them. They may not become a cloak for
inquisitorial practices and make an empty form of the due process of law for
which free men fought and died to obtain.
In
another case, Gallegos v. Colorado, the Court stated:
[A] 14-year-old boy, no matter how sophisticated, is
unlikely to have any conception of what will confront him when he is made
accessible only to the police. That is
to say, we deal with a person who is not equal to the police in knowledge and
understanding of the consequences of the questions and answers being recorded
and who is unable to know how to protect his own interests or how to get the
benefits of his constitutional rights.
370 U.S. at 54.[8] Empirical studies show that juveniles
younger than fifteen do not understand at least some of their constitutional
rights; for instance, they fail to sense the legal protection inherent in the
right to remain silent. See, e.g.,
Grisso, Juveniles Capacity to Waive Miranda Rights: An Empirical Analysis, 68 Cal. L. Rev. 1134, 1159 (1980).
If
fourteen- and fifteen-year-olds with at least average intelligence do not have
the capacity to comprehend the formal recitation of Miranda
rights, a borderline retarded fifteen-year-old with ADD certainly does not have
such capacity. More than a mere
recitation of these constitutional rights is required -- no matter how
"nice and easy" they are read.
In
addition, to have an effective waiver of rights, those rights must be clearly
understood. Waiver is "an
intentional relinquishment or abandonment of a known right or
privilege." Johnson v.
Zerbst, 304 U.S. 458, 464 (1938).
The
Supreme Court has taken a narrow view of "intelligent" waiver in
cases involving juveniles. Prior to the
Miranda decision, Justice Frankfurter stated: "[T]he terrible engine of the criminal
law [interrogation] is not to be used to overreach individuals who stand
helpless against it." Columbe
v. Connecticut, 367 U.S. 568, 581 (1961). The Court has specifically stated that "admissions and
confessions of juveniles require special caution." In re Gault, 387 U.S. 1, 45
(1967) (emphasis added).
At
the December 10, 1993 hearing on Jennifer's motion to withdraw her NGI plea,
her counsel informed the court that he had spent approximately two hours with
Jennifer and her parents discussing all of the elements of the various
offenses. Counsel also discussed with
Jennifer the constitutional rights that she had as an alleged delinquent
child. The State does not claim that
the interrogators explained the elements of the offenses with which she was
charged or the statutory rights she had as a child. She repeatedly asserted that she did not intend to kill the
alleged victim. The State does not claim
that the police informed Jennifer that lack of intent was a defense to the
possible charges against her.
Counsel
also informed the court that the concept he found most difficult to explain to
Jennifer was the meaning of reasonable doubt.
The trial court recognized the difficulty of any suspect understanding
what constitutional rights he or she has when arrested by the police. The court stated to Jennifer:
[W]hen you were first in court on this, you were given a
written copy and an explanation of your legal rights. Some of that language is awkward for anybody. Some of it is difficult for anybody, because
it's written in the language of the law.
Jennifer
had neither age nor experience to assist her in understanding the
constitutional (and statutory) rights she was waiving.
After
many years and countless judicial decisions, the Miranda warning
against self-incrimination has been distinguished and diluted so that it's
purpose has been all but forgotten. The
Miranda Court concluded that, "[u]nless adequate protective
devices are employed to dispel the compulsion inherent in custodial
surroundings, no statement obtained from the defendant can truly be the product
of his free choice." Miranda
v. Arizona, 384 U.S. 436, 458 (1966).
In
Fare v. Michael C., a sixteen-and-one-half-year-
old juvenile asked if he could have his probation officer present during
interrogation. 442 U.S. at 710. He claimed that his request invoked his
right to silence. The Supreme Court
disagreed. However, the Court held that
the California court should have inquired into the totality of the
circumstances surrounding the interrogation to determine whether the juvenile
knowingly and voluntarily waived his rights to remain silent and to have the
assistance of counsel. Id.
at 725-26. The Court concluded that a
transcript of the interrogation revealed that the police took care to ensure
that the juvenile understood his rights.
The Court found no indication in the record of the interrogation that
the juvenile failed to understand what the officers told him. The Court stated:
Further, no
special factors indicate that [the juvenile] was unable to understand the
nature of his actions. He was a 16
1/2-year-old juvenile with considerable experience with the police. He had a record of several arrests. He had served time in a youth camp, and he
had been on probation for several years.
He was under the full-time supervision of probation authorities. There is no indication that he was of
insufficient intelligence to understand the rights he was waiving, or what the
consequences of that waiver would be.
He was not worn down by improper interrogation tactics or lengthy
questioning or by trickery or deceit.
Id. at 726-27.
Special
factors are present in this case and indicate that Jennifer was unable to
understand the rights she was waiving, or what the consequences of waiver would
be.
The
United States Supreme Court has held that special rules apply to the
interrogation of a child. In Gallegos
v. Colorado, the Court said:
[The petitioner, a child of fourteen,] cannot be
compared with an adult in full possession of his senses and knowledgeable of
the consequences of his admissions. He
would have no way of knowing what the consequences of his confession were
without advice as to his rights--from someone concerned with securing him those
rights--and without the aid of more mature judgment as to the steps he should
take in the predicament in which he found himself. A lawyer or an adult relative or friend could have given the
petitioner the protection which his own immaturity could not. Adult advice would have put him on a less
unequal footing with his interrogators.
Without some adult protection against this inequality, a 14-year-old boy
would not be able to know, let alone assert, such constitutional rights as he
had.
370 U.S. at 55.
In
Haley v. Ohio, the Court said as to a fifteen-year-old boy:
[W]hen as here, a mere child--an easy victim of the
law--is before us, special care in scrutinizing the record must be used. Age 15 is a tender and difficult age for a
boy of any race. He cannot be judged by
the more exacting standards of maturity.
That which would leave a man cold and unimpressed can overawe and
overwhelm a lad in his early teens.
This is the period of great instability which the crisis of adolescence
produces. A 15-year-old lad, questioned
through the dead of night by relays of police, is a ready victim of the
inquisition. Mature men possibly might
stand the ordeal from midnight to 5 a.m.
But we cannot believe a lad of tender years is a match for the police in
such a contest. He needs counsel and
support if he is not to become the victim first of fear, and then of
panic. He needs someone on whom to lean
lest the overpowering presence of the law, as he knows it, crush him.
332 U.S. at 599-600.
Just
as in Haley, no friend stood at the side of this fifteen-year-old
girl as the police questioned her from 3 a.m. to 7:30 a.m. No lawyer stood guard to make sure that
Jennifer did not become the victim of coercion. Neither her parents nor counsel nor friend was called during the
critical hours of questioning.
"[N]ot even a gesture towards getting a lawyer ... was ever
made." Id. at
600. The Court called the Haley
interrogation a "disregard of the standards of decency." Id.
The
State does not claim that Jennifer's family was not known to the police. The failure of the police to inform
Jennifer's parents as to where she was from 2 a.m. to 7:30 a.m. disregards the
standards of decency of our society.
Jennifer should not have had to request that her parents be called. The standards of our society require that
the police do not hold a child of tender years incommunicado when the child's
parents are near at hand.
I
believe that Jennifer's statement or confession cannot be held to be voluntary
or intelligent in these circumstances.[9]
Therefore,
I respectfully dissent.
[1] Jennifer's
motion for a three-judge panel was granted by order of this court dated October
31, 1994.
[2] McCosky testified that she performed what she
referred to as a "Frye Readability Scale" on the Miranda-rights
card used by the Dane County Sheriff's Department.
[4] Under Miranda v. Arizona, 384
U.S. 436 (1966), an in-custody defendant must be warned that he or she has the
right to remain silent, that anything he or she says may be used against him or
her in court, that he or she has the right to an attorney, and that an attorney
will be appointed if he or she cannot afford one.
[5] Jennifer does not contend that the trial
court's finding that Carol Stephenson had more experience with Jennifer than
Kathryn McCosky is clearly erroneous.
[6] The specialist also testified that the Miranda
warning card, which the police read to Jennifer, was written at an eighth-grade
reading level.
[9] Courts from other jurisdictions have held
"waivers" ineffective under similar facts. See, e.g., Cooper v. Griffin, 455 F.2d 1142
(5th Cir. 1972) (ruling that fifteen- and sixteen-year-olds with I.Q.'s between
sixty and sixty-seven were incapable of knowingly and intelligently waiving
their Miranda rights); Eddings v. State, 443 So. 2d
1308 (Ala. Crim. App. 1983) (determining minor defendant's confession
inadmissible where he had I.Q. of 49 making it impossible for him to understand
his Miranda rights); Watson v. State, 501 S.W.2d
609 (Ark. 1973) (holding waiver by seventeen-year-old was ineffective where
defendant had limited intelligence, was assigned to special education classes,
and only obtained a third-grade reading level); Tennell v. State,
348 So. 2d 937 (Fla. Dist. Ct. App. 1977) (holding that fourteen-year-old
defendant failed to knowingly and intelligently waive rights where defendant
had below average intelligence, had a first-grade reading level, and had
difficulty understanding normal speech); Crawford v. State, 240
S.E.2d 824 (Ga. 1977) (ruling that sixteen-year-old failed to make knowing
waiver where, inter alia, she had an I.Q. of 56 and was borderline
mentally retarded); People v. Redmon, 468 N.E.2d 1310 (Ill. Ct.
App. 1984) (determining that sixteen-year-old defendant was incapable of giving
knowing and intelligent waiver where he had I.Q. of seventy, had borderline mental
deficiency, and was unable to understand rights which were read to him); Commonwealth
v. Jones, 328 A.2d 828 (Pa. 1974) (holding that fifteen-year-old failed
to knowingly and intelligently waive rights where he had an I.Q. of 74, was in
the "retarded cycle" at school, and had only two hours of sleep
before being interrogated at length in the early hours of the morning).