People v. Kadow

• Decision Date: 26 January 2021
• Docket Number: 4-19-0103
• Citation: 2021 IL App (4th) 190103,182 N.E.3d 814,450 Ill.Dec. 1002
• Parties: The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Johnnie W. KADOW, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

2021 IL App (4th) 190103
182 N.E.3d 814
450 Ill.Dec. 1002

The PEOPLE of the State of Illinois, Plaintiff-Appellee,
v.
Johnnie W. KADOW, Defendant-Appellant.

NO. 4-19-0103

Appellate Court of Illinois, Fourth District.

FILED January 26, 2021

James E. Chadd, Catherine K. Hart, and Joel C. Wessol, of State Appellate Defender's Office, of Springfield, for appellant.

Gary L. Farha, State's Attorney, of Quincy (Patrick Delfino, David J. Robinson, and Lara L. Quivey, of State's Attorneys Appellate Prosecutor's Office, of counsel), for the People.

OPINION

JUSTICE DeARMOND delivered the judgment of the court, with opinion.

450 Ill.Dec. 1005

¶ 1 In August 2017, the State charged defendant, Johnnie W. Kadow, with five counts of predatory criminal sexual assault of a child, Class X felonies. 720 ILCS 5/11-1.40(a)(1), (b)(1) (West 2016). In October 2018, defendant moved to suppress statements he made during a recorded interview, claiming he did not knowingly and voluntarily waive his Miranda rights (see Miranda v. Arizona , 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966) ). Following a November 2018 evidentiary hearing, the trial court took the matter under advisement and invited the parties to submit memoranda of law in support of their positions. In December 2018, the trial court denied defendant's motion to suppress, finding defendant reinitiated contact with the officer after invoking his right to counsel and then knowingly and voluntarily waived his Miranda rights. As a result, the court concluded that the State could introduce defendant's statements into evidence as corroboration of the minor victims' hearsay statements, which the court previously found admissible under section 115-10 of the Code of Criminal Procedure of 1963 (Code) ( 725 ILCS 5/115-10 (West 2016) ). In February 2019, the court held a hearing on defendant's posttrial motion, which alleged that the trial court's denial of his motion to suppress was error. In denying defendant's posttrial motion, the trial court again noted defendant asserted his rights, but then made a knowing and voluntary waiver of his Miranda rights.

¶ 2 On appeal, under the umbrella of a claim of ineffective assistance of counsel, defendant argues (1) defendant's intellectual disability rendered his statement involuntary, (2) the police undermined defendant's Miranda warnings by failing to respect defendant's invocation of counsel, (3) defendant's will was overcome by the officer's threats of jail and offers to help defendant were conditioned on defendant's confession, and (4) based on the aforementioned errors, defendant's statement was involuntary and unreliable. Defendant claims trial counsel was ineffective for failing to seek to suppress defendant's statements on the grounds that the statements were involuntary. The State argues trial counsel was not ineffective because the evidence showed defendant gave a voluntary statement and, after invoking his

182 N.E.3d 818

450 Ill.Dec. 1006

right to counsel, he initiated contact with the police officer. The State claims that after defendant initiated contact with the officer, he then voluntarily waived his Miranda rights. Because we agree with defendant that the police undermined defendant's Miranda warnings by initiating contact after defendant's invocation of counsel, and because he was incapable of understanding, much less voluntarily waiving, his Miranda rights, we reverse and remand.

¶ 3 I. BACKGROUND

¶ 4 In August 2017, the State charged defendant by information with five counts of predatory criminal sexual assault of a child, Class X felonies. 720 ILCS 5/11-1.40(a)(1), (b)(1) (West 2016).

¶ 5 In October 2017, the State filed a motion in limine requesting to admit hearsay statements made by the two minor victims, pursuant to section 115-10 of the Code ( 725 ILCS 5/115-10 (West 2016) ). That same month, defense counsel filed a "Suggestion of Fitness and Motion for Examination," questioning whether defendant was fit to stand trial because defendant "cannot read or write and seems unable to understand the legal process and possible consequences."

¶ 6 In November 2017, Dr. Frank Froman, a clinical psychologist, submitted a fitness report indicating that defendant reads at a kindergarten level, his perceptual motor abilities are akin to a five-year-old child, he functions at a third-grade level, and he could not comprehend his legal rights—neither what they are, nor what they mean. Dr. Froman concluded defendant's "condition is fixed, and unlikely to change his [sic ] result of any form or therapy, medication, or the like. His condition is essentially immutable." Dr. Froman found defendant incapable of "understanding the charges against him, and cooperating with his attorney in formulating his defense." After finding defendant unfit to stand trial, the court ordered he be placed in the custody of the Illinois Department of Human Services (DHS) for evaluation to determine his fitness status and whether he can be made fit within one year.

¶ 7 In May 2018, DHS filed a "Progress Report," pursuant to section 104-18(a)(3) ( 725 ILCS 5/104-18(a)(3) (West 2016)), which stated defendant did not have the capacity to meet the standard of legal fitness because

"[h]is thought process consists primarily of simplistic concrete concepts (as opposed to abstract ideas), and his learning process consists primarily of rote memorization acquired through repetition over time. Consequently, his ability to adequately understand the legal proceedings against him is severely compromised, and he does not have the skills necessary to effectively participate in his own defense."

The report concluded that defendant was unlikely to ever attain legal fitness. The findings of this report were consistent with each of the progress reports filed with the court. Based on this, defense counsel filed a motion for a discharge hearing pursuant to section 104-25 ( 725 ILCS 5/104-25 (West 2016) ) of the Code. See 725 ILCS 5/104-23 (West 2016) (authorizing a discharge hearing where an unfit defendant cannot become fit to stand trial because there is a substantial probability that he will not attain fitness within the allotted time period).

¶ 8 In October 2018, the trial court held a hearing pursuant to section 115-10(b) of the Code ( 725 ILCS 5/115-10(b) (West 2016)) to determine the admissibility of the minor victims' hearsay statements. The minors' mother and grandmother testified about the statements the minors made to them regarding the allegations. The State

182 N.E.3d 819

450 Ill.Dec. 1007

also presented evidence from the director of forensic interviewing of the Children's Advocacy Center about her recorded interview with both minors, from a social worker who counseled both minors, and from Detective Hufford's interview of defendant. The court found the statements the minors made to their mother and grandmother were reliable, but if the children were found to be unavailable to testify, then the State was required to present corroborating evidence in order for the court to admit them. The corroborating evidence would be defendant's recorded interview and eventual admission of guilt. On the same day as the hearing, defense counsel filed a motion to suppress the statements defendant made to Detective Hufford, claiming that, due to his learning disability, he was unable to understand and comprehend his Miranda rights and was therefore unable to make a knowing and voluntary waiver of those rights. The court reserved ruling on whether the minors would be declared unavailable until it ruled on defendant's motion to suppress.

¶ 9 In November 2018, the trial court heard defendant's motion to suppress. The evidence consisted of the recorded interview of defendant and prior reports authored by mental health professionals concerning defendant's fitness. During the interview, Detective Hufford read defendant's Miranda rights, and defendant confirmed he understood them. Hufford reviewed the admonition form with defendant; however, after admitting he could not write, defendant said he did not understand the meaning of his rights, and Hufford attempted to explain them to him in simpler terms. Detective Hufford had to explain the practical application of defendant's Miranda rights before defendant signed the admonition form. After denying the allegations, the following dialogue took place:

"DEFENDANT: Can I talk to a lawyer?

DETECTIVE HUFFORD: Huh?

DEFENDANT: Can I talk to a lawyer?

DETECTIVE HUFFORD: You want a lawyer? I am going to call to see if the State's Attorney's Office wants you to be lodged in jail right now, okay? If you don't want to talk to me.

DEFENDANT: I'll talk to you.

DETECTIVE HUFFORD: No.

DEFENDANT: I'll talk to you.

DETECTIVE HUFFORD: I don't think you're being honest with me already.

DEFENDANT: Yeah, I was out of town. I want to talk to you.

DETECTIVE HUFFORD: (while exiting the room) Remain seated.

DEFENDANT: I'll talk to you, please."

Detective Hufford responded, "You just said you wanted a lawyer that means I have to stop. Unless you really want to talk to me." Defendant then reiterated he wanted to speak with him and confirmed he did not want an...