source: Caselaw Access Project

author: JUSTICE LEWIS

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. NICKEY Z. GIACOMO, Defendant-Appellant.
    Fifth District
    No. 5—91—0787
    Opinion filed January 25, 1993.

      Daniel M. Kirwan and E. Joyce Randolph, both of State Appellate Defender’s Office, of Mt. Vernon, for appellant.
    Gene Gross, State’s Attorney, of Pinckneyville (Norbert J. Goetten, Stephen E. Norris, and Johannah B. Weber, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE LEWIS

delivered the opinion of the court:

Defendant, 15-year-old Nickey Giacomo, was convicted of two counts of aggravated arson (Ill. Rev. Stat. 1991, ch. 38, par. 20—1.1) following a stipulated bench trial. Prior to his trial, defendant filed a motion to suppress, alleging that his statements were not voluntary and that he had not knowingly and intelligently waived his rights. The court denied this motion. On appeal, the only issue raised by the defendant is that the court’s denial of his motion to suppress was against the manifest weight of the evidence. We affirm for the reasons set forth below.

At the hearing on the motion to suppress, Pinckneyville Chief of Police Thomas A. Denton, Jr., testified that his office investigated a fire in a teacher’s bathroom at the high school on February 1, 1991. At the time of this fire, which was intentionally set, school was in session and teachers and students were present. Denton had five suspects for this fire, but the defendant was not one of them.

On February 7, 1991, Officer Denton received a call at approximately 11:50 a.m. regarding a second fire at the high school. Denton was advised that afternoon by the fire marshal’s investigator that the fire on the stage in the school auditorium had been intentionally set. As in the previous fire, school was in session and teachers and students were present. The only witness to the fire was Dean Brewer, the school principal, who noticed smoke coming from the auditorium when he was walking across the school parking lot.

Denton began his investigation of the second fire by asking Brewer for a list of students who had received disciplinary action during the previous week. One of the students on the list was the defendant. Denton had been unaware of the defendant prior to this time, so he asked Brewer about the defendant. Brewer advised Denton that the defendant had been caught stealing a pair of pliers from shop class during the past week, for which he had received an oral reprimand.

Denton next checked the students who were on lunch break “B,” since students can wander around the school without a pass during lunch break, and since this was the time the fire occurred. Denton discovered that the defendant was on lunch “B,” and that this lunch period started with a study hall in the school auditorium.

Denton sought additional information on the defendant after he found that the defendant’s schedule provided him with the opportunity to set the fire. Brewer suggested that Denton talk to Mrs. C.K. Longshore for more background information. Mrs. Longshore advised Denton that the defendant came from a “difficult background” and that the defendant might have had prior involvement with the police.

The information provided by Mrs. Longshore prompted Denton to contact Vickie Suttle, a probation officer for Perry County. Suttle told Denton that the defendant was on probation for committing a burglary in Randolph County and that his supervision on probation had been transferred from Randolph County to Perry County.

Denton called the Coulterville police department in Randolph County, and the Coulterville police explained the defendant’s burglary charge to him. The Coulterville police also advised Denton that they had charged the defendant with arson in 1988; however, he was never prosecuted for this offense. Denton received this information at about 8 p.m. on February 7, 1991.

Denton interviewed the defendant at 9 a.m. the following day, February 8, 1991, in the third-floor conference room inside the library at the school. The defendant was brought to the conference room by Brewer. Denton stated that at the beginning of the interview, he had no evidence that the defendant had set the fire in the school auditorium, and so he initially asked the defendant how he became aware of the fire and as to his whereabouts. The defendant told Denton he was in study hall in the auditorium; he went to lunch; and, after lunch, he went out the door onto the football field, where he encountered two other students, one of whom was named Clark. The defendant also told Denton that Brewer entered the lunch room two or three minutes before the defendant left. While talking to the two students, the defendant smelled smoke, and then he saw Brewer and a janitor run up the stairs to the auditorium.

Because there was a 10- to 15-minute discrepancy in the defendant’s explanation and in Brewer’s statement of events, Denton asked the defendant about this time discrepancy. The defendant appeared “unsettled” by this question, and he began to “squirm” in his chair. Denton told the defendant that he believed the defendant knew “a lot more about this fire.” The defendant then admitted that he had gone back to the auditorium after lunch and that he and the “Clark kid” were on the stage and threw matches back and forth. The defendant speculated that one of the discarded matches might have started the fire.

Denton was aware that the “Clark kid” was in class at the time of the fire and was not on lunch “B,” so he asked the defendant why Clark was out of class. The defendant did not respond immediately but then admitted to Denton that, after lunch, he went up onto the stage in the auditorium and found a discarded magazine which he lit and placed next to some “flats,” i.e., pieces of canvas attached to wooden boards used in plays. The defendant’s version of how the fire started matched the point of origin of the fire determined by the fire marshal, and Denton stated that the defendant could know this only if he had set the fire. The defendant also told Denton where the matches were that he used to set the fire and led Denton to where the matches were buried in the ground by a trash barrel.

Denton did not advise the defendant of his rights until after the defendant confessed to setting the fire. After the defendant’s admission, Denton took a 10-minute break and verified the defendant’s statement. When Denton returned to the conference room, he gave the defendant his Miranda rights. Denton took “exceeding care in explaining” these rights to the defendant because he knew the defendant had a speech impediment, because he knew the defendant was classified as “learning disabled,” and because an attempt had been made to contact the defendant’s parents but they had not responded to the notification. Denton wanted the defendant to understand the gravity of the situation, and he wanted the defendant to understand his rights. Denton tape-recorded the administering of the defendant’s rights and the interview with the defendant which followed. The tape recording and the transcription of the taped interview were admitted into evidence. In Denton’s opinion, the defendant understood the questions he was asked.

Denton admitted that he had no knowledge of the defendant’s reading comprehension. He also admitted that before the taped interview, he had Brewer get Bradley, the school superintendent, and the defendant made an inculpatory statement with them present. Denton stated that from 9 a.m. to 9:20 a.m., the defendant made no inculpatory statements; from 9:20 a.m. to 9:30 a.m., the defendant made inculpatory statements; from 9:30 a.m. to 10 a.m., the defendant repeated his statements with Brewer and Bradley present; after 10 a.m., Denton checked out the defendant’s story and an attempt to contact the defendant’s parents was made; and at 10:50 a.m., Denton returned to the conference room, and at 11:02 a.m., he gave the defendant his rights and the defendant signed a waiver form.

Dean Brewer, the principal of the high school, testified that some of the defendant’s classes were learning disabled and some were not. Brewer further stated that the defendant had been tested when he was in school in Arkansas and that the results of those tests revealed that the defendant had a full-scale intelligence quotient of 75, which is considered to be in the low average range.

Brewer confirmed that he had told Denton about the pliers episode and that he had given the defendant an oral reprimand. On February 8, 1991, Denton told Brewer that he wanted to interview the defendant first, so Brewer removed the defendant from his classroom and took him to the third-floor conference room. When Brewer removed the defendant from class, he told the defendant the police needed to talk to him since he was a student in the auditorium at the time of the fire. After Brewer delivered the defendant to the conference room, he left. Brewer returned to the conference room when he learned that the defendant had admitted setting the fire of February 7, 1991, and the fire of February 1, 1991. Brewer, along with Officers Denton and Sroka and School Superintendent Bradley, heard the defendant’s statement before the taped statement was made. Brewer was also present when the defendant made his taped statement. Brewer stated that Denton gave the defendant his Miranda rights and that he also explained the rights to the defendant. Brewer believed that the defendant understood.

On cross-examination, Brewer admitted that the defendant’s tests revealed that he has a reading level of a nine-year-old and is functioning at a third- or fourth-grade level. Brewer also stated he attempted to contact the defendant’s parents at about 10:10 a.m., but when he called, the defendant’s brother said his parents were not home. Brewer told the defendant’s brother to tell his parents that it was important and that they should either come to school or call the school as soon as they arrived home. The defendant’s parents contacted Brewer after the defendant had been taken to the police station.

The defendant testified that he is 15 years old and is in the ninth grade. The defendant recalled that Brewer removed him from class on February 8, 1991, and that Brewer told him they wanted to talk to him about what happened on February 7, 1991. Brewer took him to the conference room and left him there with the two officers. The defendant described the room as being 10 feet by 10 feet in size, and it had one window and one door, which was kept closed during the interview.

The defendant stated Denton asked him about the fire and, at first, he denied knowing anything; however, the defendant subsequently admitted to setting the fire. After an hour, Denton told the defendant he was going to tape the interview, and after the tape was started, Denton advised him of his rights. The defendant testified that he did not understand his rights, but that he said he understood because he was afraid. The defendant remembered that Denton told him he could leave the interview at any time, but that he did not leave because he “figured he would get into trouble.”

The defendant admitted he knew what a courtroom was and what a judge was. He also admitted he had been in court three or four times before. On the other occasions that he had been in court, he had admitted committing the burglaries and had been placed on probation.

On cross-examination, the defendant stated he was telling the truth when he made the taped statement. The defendant admitted that the police did not beat him and were not mean. In fact, the defendant thought Denton was “nice” to him, and he thought the police were trying to explain “things” to him.

At the conclusion of the hearing on the motion to suppress, the State’s Attorney stipulated that the defendant was in custody at 9:30 a.m., after his first inculpatory statement was made.

Subsequently, the court entered an extensive order in which it held that the statements made by the defendant prior to being given his rights should be suppressed, but that the statement made by the defendant after he was given his rights was admissible since the statement was voluntary and since he had knowingly and intelligently waived his rights. As noted previously, the defendant was found guilty of two counts of aggravated arson at a stipulated bench trial and was sentenced to concurrent six-year terms of incarceration in the juvenile division of the Department of Corrections for each count.

On appeal, the defendant argues that his statements were not voluntary and that he did not knowingly and intelligently waive his rights for several reasons. The defendant contends that the defendant was in custody from the beginning of the interview and that his rights should have been given to him from the outset; thus, all of the defendant’s statements should have been suppressed. Also, the defendant asserts that because the defendant’s parents were not present during the interview, this factor, combined with the place of interrogation and with the defendant’s subnormal mentality and young age, militated against the defendant’s statements being voluntary and his waiver being knowing and intelligent.

We initially consider the defendant’s implication (for he never argues this point outright) that his warned statement was tainted by his unwarned statements and, therefore, none of the defendant’s statements were admissible. Miranda warnings are required when a defendant is subject to custodial interrogation. (People v. Acoff (1989), 188 Ill. App. 3d 208, 544 N.E.2d 96.) Without going into a litany of factors as to when the defendant was in custody in this case, suffice it to say that the State’s Attorney stipulated that the defendant was in custody at 9:30 a.m., after he made his first inculpatory statement. The trial court agreed with the State’s Attorney and determined that Miranda warnings were required at that point, and we agree. Therefore, we must consider whether the unwarned statements made after 9:30 a.m. tainted the defendant’s subsequent warned statement.

In Oregon v. Elstad (1985), 470 U.S. 298, 84 L. Ed. 2d 222, 105 S. Ct. 1285, the Supreme Court considered this precise issue. In Oregon, the Supreme Court stated:

“Failure to administer Miranda warnings creates a presumption of compulsion. Consequently, unwarned statements that are otherwise voluntary within the meaning of the Fifth Amendment must nevertheless be excluded from evidence under Miranda. Thus, in the individual case, Miranda’s preventive medicine provides a remedy even to the defendant who has suffered no identifiable constitutional harm.” (Oregon, 470 U.S. at 307, 84 L. Ed. 2d at 231, 105 S. Ct. at 1292.)

The Supreme Court went on to state:

“If errors are made by law enforcement officers in administering the prophylactic Miranda procedures, they should not breed the same irremediable consequences as police infringement of the Fifth Amendment itself. It is an unwarranted extension of Miranda to hold that a simple failure to administer the warnings, unaccompanied by any actual coercion or other circumstances calculated to undermine the suspect’s ability to exercise his free will, so taints the investigatory process that a subsequent voluntary and informed waiver is ineffective for some indeterminate period. Though Miranda requires that the unwarned admission must be suppressed, the admissibility of any subsequent statement should turn in these circumstances solely on whether it is knowingly and voluntarily made.” Oregon, 470 U.S. at 309, 84 L. Ed. 2d at 232, 105 S. Ct. at 1293.

We note that Oregon specifically rejected the “cat out of the bag” argument first raised in United States v. Bayer (1947), 331 U.S. 532, 91 L. Ed. 1654, 67 S. Ct. 1394, and the “fruit of the poison tree” doctrine set out in Wong Sun v. United States (1963), 371 U.S. 471, 9 L. Ed. 2d 441, 83 S. Ct. 407, as being applicable in the situation where there is no unlawful arrest, an uncoerced, unwarned confession and then a subsequent warned confession.

Thus, from the foregoing, it is clear that if the unwarned statements were voluntary, then the subsequent warned statement, if also voluntary, was admissible and was untainted by the previous unwarned statements.

Here, the trial court found that the defendant’s statements made between 9:30 a.m. and 10:50 a.m. should be suppressed because they were not preceded by the Miranda warnings. The court did not state that the unwarned statements were voluntary, but it is a reasonable inference that it believed so, as the court’s only basis for excluding the statements was the failure to give the defendant his Miranda warnings. In addition, a review of the record reveals that the unwarned statements were voluntary.

Under Federal law, a statement is voluntary unless the confession is causally related to coercive police conduct. (Colorado v. Connelly (1986), 479 U.S. 157, 93 L. Ed. 2d 473, 107 S. Ct. 515.) In order for a statement to be voluntary under Illinois law, a defendant’s mental ability, familiarity with the English language, age, education, and experience are among the factors to be considered. (People v. Bernasco (1990), 138 Ill. 2d 349, 562 N.E.2d 958.) In other words, the totality of the circumstances controls a court’s determination. (Bernasco, 138 Ill. 2d 349, 562 N.E.2d 958.) Further, in the case of a juvenile, the parents’ absence during questioning-does not automatically render the confession inadmissible, but this omission constitutes another factor to be considered in determining voluntariness. People v. Clements (1985), 135 Ill. App. 3d 1001, 482 N.E.2d 675.

In the case sub judice, it was clear that the defendant’s mentality was in the low average range; however, this factor does not ipso facto make his confession involuntary, as the other factors involved revealed the defendant understood the meaning and the effect of his confession. (People v. Johnson (1991), 221 Ill. App. 3d 588, 584 N.E.2d 165.) From the transcription of the taped interview, it was clear from the defendant’s responses to the questions asked that he understood. Additionally, the defendant had previous experience with the police as he was on probation for the commission of several burglaries. Similarly, the defendant was not questioned at the police station but was at the school the entire time, a nonthreatening atmosphere. The defendant was not unreasonably detained or physically restrained. The defendant made his inculpatory statements after 20 minutes of questioning, a relatively short time for an interrogation. Lastly, the defendant admitted that Officer Denton was “nice” to him. From the lack of coercive police conduct and from the totality of the circumstances, we find the defendant’s unwarned statements were voluntary.

We next consider whether the warned statements were voluntary and whether the defendant knowingly and intelligently waived his rights before he made this statement. Here, just as the unwarned statements were not coerced, neither were the warned statements. The police did not misrepresent any evidence or trick the defendant in any manner. The defendant was not placed in handcuffs, tied to his chair or physically restrained in any other manner. The same factors previously considered for the unwarned statements are applicable to the warned statement and will not be reiterated here. Thus, the defendant’s warned statement was also voluntary.

The next consideration is whether the defendant’s warned statement was made after he knowingly and intelligently waived his rights. Whether a defendant knowingly and intelligently waived his rights is determined from the totality of the circumstances and is decided upon the facts of each case. (People v. Bernasco (1990), 138 Ill. 2d 349, 562 N.E.2d 958.) For a defendant to knowingly and intelligently waive his rights, he must have the ability to understand the words in the warnings, and at a minimum, he must understand basically what those rights encompass and what their waiver will entail. (Bernasco, 138 Ill. 2d 349, 562 N.E.2d 958.) In reviewing a trial court’s denial of a motion to suppress, due deference must be given to the trial court, as the court assessed the defendant’s credibility and demeanor and the relevant facts, and a reviewing court will only overturn the court’s decision if it is against the manifest weight of the evidence. Bernasco, 138 Ill. 2d 349, 562 N.E.2d 958.

Here, a recitation of Officer Denton’s conscientious advising of the defendant of his rights reveals that the defendant did understand the rights he was waiving. The advisement by Officer Denton was as follows:

“DENTON — *** Nickey, for the record, I’m going to be reading to you a uh a statement of Miranda Rights. Uh, it’s a legal form that we use in [the] police department as part of an investigation. But, first, let me ask, are you aware that you are not under arrest?
GIACOMO — Yes.
DENTON — OK. Do you understand that you can get up and walk out of this room any time you want to?
GIACOMO-Yes.
DENTON — And that you’re not in handcuffs currently and you’re here because you want to be here. Is that right?
GIACOMO — Yes.
DENTON — OK. Uh, let me read the statement to this and anything you don’t understand, just ask me. OK? First of all, you have the right to remain silent. Do you understand that? That means you don’t have to talk to me if you don’t want to. Do you understand that?
GIACOMO — Yes.
DENTON — OK. Secondly, anything you say can and will be used against you in a court of law. Do you understand that?
GIACOMO — Yes.
DENTON — Do you understand what court is?
GIACOMO — Not very.
DENTON — OK. Uh, court is when uh people gather before a judge and they listen to uh testimony or what people have to say about a potential criminal act. Something that...that another person has done wrong. Uh, do you understand that?
GIACOMO-Yes.
DENTON — So, you...you tell me what you think a court is.
GIACOMO — It’s where people go to see what happens to them.
DENTON — OK. Do you know what a judge is?
GIACOMO — They tell uh that tells uh...I don’t know it too good. Tell uh what happens, what’s going to happen to you and stuff.
DENTON — OK. Uh, have you ever been before a judge before, or have you ever seen a judge or talked to a judge?
GIACOMO-Yes.
DENTON — OK. And where was that.
GIACOMO — In uh Chester.
DENTON — OK. Do you remember the judge’s name?
GIACOMO — No, sir.
DENTON — OK. But, you do now understand what a...what court is?
GIACOMO-Yeah.
DENTON — And what court of law is?
BREWER — And you realize what you say can be used and this testimony can be used against you in that court before a judge.
GIACOMO — Yes.
DENTON — In other words, what we say today, what you tell me today, I will go to a judge and tell him what you said. Do you understand that?
GIACOMO — Uh-huh.
DENTON — OK. Third thing is, you have the right to talk to a lawyer. Do you know what a lawyer is?
GIACOMO — Yes.
DENTON — What is a lawyer?
GIACOMO — It’s a guy that can help you get out of trouble.
DENTON — OK. And you have a right to not only talk to a lawyer, but you have a right to have a lawyer here with you today. Do you understand that?
GIACOMO — Yes.
DENTON — OK. While you’re being questioned. Do you understand that?
GIACOMO-Yes.
DENTON — OK. Fourthly, if you cannot afford to hire a lawyer, one will be appointed to represent you before any question if you wish. Do you know what that means? It means if you want a lawyer, we can get one for you and he can come here and listen to what you have to say today. Do you understand that?
GIACOMO-Yes.
DENTON — OK. You can decide at any time to exercise these rights and not answer any questions or make any statements. Do you understand that?
GIACOMO — Yes sir.
DENTON — In other words, you don’t have to talk to me. You’re shaking your head yes, but...does that mean yes?
GIACOMO — Yeah.
DENTON-OK.
BREWER — And that’s at any time you may answer a question or two and then you may decide not to answer a question, and you have that right at any time to...to say, T don’t want to say any more.’
GIACOMO — OK.
BREWER — OK. And you’re aware of that?
GIACOMO — Yes sir.
DENTON — A waiver of the rights means that when you voluntarily agree to talk to me without a lawyer present and you’ll answer whatever questions you want to ask or answer and you have a right not to answer any questions you don’t want to answer. But you agree to go ahead and talk with me, is that what you would like to do?
GIACOMO — Yes.
DENTON — OK. Can you read and write?
GIACOMO — A little bit.
DENTON — OK. Uh, I’m going to give you the form I’m reading on, but on the bottom of this form it says ‘Waiver of Rights. I read the above statement of my rights and I understand each of those rights — those five points I read to you. Having those rights in mind, I waive them and willfully make a statement.’ Now, it’s my understanding that you do wish to continue talking with me. Is that correct?
GIACOMO — Yes.
DENTON — OK. Uh, I will ask you to look over the form that I am reading to you and I will also ask if you need any assistance with reading that you ask Mr. Brewer and maybe he can help explain a word or whatever. But you look that over and see if that’s about what I read to you on the tape.
BREWER — Why don’t you read that out to me.
GIACOMO — You have the right to remain silent. Anything you say can and will be used against you in a court of law. You have the right to talk to a lawyer and have him present with you while you are being questioned. If you cannot afford...if you cannot afford to hear a lawyer...hire a lawyer...hire a lawyer, one will be pointed to re...repress?...
BREWER — Represent.
GIACOMO — Represent you before any questions if you wish...
BREWER — Now you know what represent...that means he will act in your...
DENTON — Talk for you.
BREWER — Talk for you.
GIACOMO — You can decide at any time to exercise these rights and not answer any questions or make any systems.
BREWER — That’s statements.
GIACOMO — Statements.
BREWER — OK. Now you’ve read those through and we went through them. Is there anything you don’t understand about those?
GIACOMO — No, sir.”

From this extensive explanation of the defendant’s rights to him, it was clear the defendant knowingly and intelligently waived his rights, when considered with all the other factors previously enumerated. Given the totality of the circumstances in this case, we find that the court’s denial of the defendant’s motion to suppress was not against the manifest weight of the evidence.

For the foregoing reasons, the judgment of the circuit court of Perry County is affirmed.

Affirmed.

WELCH and RARICK, JJ., concur.


author: JUSTICE WILLIAM A. LEWIS

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. TROY HIGGINS, Defendant-Appellee.
    Fifth District
    No. 5—91—0768
    Opinion filed January 25, 1993.
    Charles Grace, State’s Attorney, of Murphysboro (Norbert J. Goetten, Stephen E. Norris, and Kendra S. Mitchell, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
    Daniel M. Kirwan and Dan W. Evers, both of State Appellate Defender’s Office, of Mt. Vernon, for appellee.
   JUSTICE WILLIAM A. LEWIS

delivered the opinion of the court:

Defendant, 17-year-old Troy Higgins, was charged with arson (Ill. Rev. Stat. 1989, ch. 38, par. 20—1(a)) and two counts of first-degree murder (Ill. Rev. Stat. 1989, ch. 38, par. 9—1(a)(3)). The defendant filed a motion to suppress his confession, and the circuit court, in granting the motion, found that the confession was not voluntary and that defendant did not knowingly and intelligently waive his rights under Miranda v. Arizona (1966), 384 U.S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602. The State appeals.

On appeal, although the State presents its case in four separate arguments, the issues to be considered are whether the court’s determinations that the defendant’s statements were not voluntary and that the defendant did not knowingly and intelligently waive his rights were against the manifest weight of the evidence. (These same issues are also paramount in another case also decided by this court today, People v. Giacomo (1993), 239 Ill. App. 3d 247. When the case at bar and Giacomo are read in tandem, these cases provide a sharp contrast in the totality of the circumstances and emphasize that the validity of a confession is to be determined from the particular facts of each case. (People v. Bernasco (1990), 138 Ill. 2d 349, 562 N.E.2d 958).) We affirm the trial court for the reasons set forth below.

On February 16, 1991, a fire occurred at a residence in Carbon-dale, Illinois, at approximately 11 p.m. As a result of the fire, two occupants, Herschel Scott and Willie Rosemand, died. The defendant was arrested on an unrelated battery charge on February 18, 1991, but while in custody, he was questioned on and ultimately confessed to setting the fire at this residence. At the time of his arrest, the defendant was 17 years of age, had an IQ of 67, and was in special education classes in school. After filing the arson charges, the State filed a motion to appoint an expert to evaluate the defendant’s fitness to stand trial. A trial on the defendant’s fitness was held, and a jury found the defendant fit to stand trial. Subsequently, the defendant filed his motion to suppress.

Don Priddy, a Carbondale police officer, testified at the suppression hearing that on February 12, 1991, he investigated a battery, allegedly committed by the defendant. Priddy did not see the defendant at that time but encountered him on February 17, 1991, shortly after midnight. Priddy knew the defendant was on home confinement and was not to be out of his home except to attend school. Priddy did not give the defendant his Miranda warnings, but he asked the defendant where he had been that night. Defendant responded that he had been at Penny Wooley’s house. Priddy asked the defendant to come to the police station because of his home confinement violation. As Priddy was talking to the defendant, the defendant’s grandmother came to the door. Priddy told her that the defendant was not to be out of the house, that he was taking the defendant to the police station to question him about a battery, and that he would bring the defendant home when they were finished. The defendant’s grandmother, Queenie, told the defendant to go with Priddy and to give him a statement.

Priddy read the defendant his Miranda rights from a form at the police station, but he did not ask the defendant after each warning whether he understood. Priddy asked the defendant about the battery, and the defendant told him that Miss Berner started the fight and that he was defending himself. During the interview, Detective Corey came in, briefly asked the defendant about the fire of February 16, 1991, and then left. The interview with the defendant lasted about an hour, and then Priddy took the defendant home.

Carbondale Detective Donald Barrett testified that he arrested the defendant on February 18, 1991, at the Carbondale East High School pursuant to a warrant for the battery. Barrett was aware that the defendant had given Priddy several “stories” as to his whereabouts on the night of the fire, the last one being that the defendant had been at a house on South Washington Street. Therefore, Barrett drove the defendant down South Washington Street, an indirect route to the police station, for the purpose of having the defendant point out the house where he had been on the night of the fire. The defendant was unable to do so.

Barrett then took the defendant to the police station where he read the defendant his rights from a form. Barrett asked if the defendant understood after each admonishment, and the defendant answered affirmatively. Barrett did not explain the rights on the form. Barrett inquired into the defendant’s whereabouts the night of the fire and asked about the three different statements he had given to Officer Priddy. The defendant admitted the last statement he gave to Priddy was a lie and stated that the reason he had lied was because he was joking with Priddy. The defendant told Barrett that, on the day of the fire, he spent most of the afternoon at Stanley Schauf’s apartment, left for awhile, but then returned to Schauf’s about 8 p.m. and stayed until around midnight.

Barrett had received incorrect information that Priddy had found a cigarette lighter on the defendant on February 17, 1991. Barrett asked about the lighter, and initially, the defendant said he had a lighter; however, the defendant then stated that while he did not have a lighter, he had matches. Barrett told the defendant he believed the defendant had been at the scene of the fire and had been involved. The defendant denied this.

Barrett asked the defendant to take a polygraph examination, and the defendant agreed. Before the defendant took the polygraph examination, Barrett found out that the defendant had been at Schauf’s apartment on the night of the fire, but that he had left there about 10 or 10:30 p.m.

Barrett took the defendant to the crime laboratory and was present when the defendant signed a consent form for the polygraph examination. Barrett testified that the defendant was not given his Miranda warnings before the polygraph examination but that Craig Hansen, who administered the polygraph examination, read a consent form to the defendant. The defendant signed the form, and Barrett signed as a witness.

After the polygraph examination, the defendant told Barrett, Hansen and Detective Corey that he had been playing with matches at the house and that he had started the fire by accident. No admonitions were given to the defendant before he made this statement.

Barrett drove the defendant to the scene of the fire after leaving the crime lab. The defendant refused to get out of the police car, but he directed Detective Corey to the spot where he had stood on the night of the fire. The defendant first placed Corey in the front yard in front of the house at the west end of the porch and said he threw matches onto some cardboard on the porch. The defendant then changed this statement and said he was on the porch. Corey corroborated that there was cardboard on the porch as he had been at the house earlier in the day on February 16, 1991, to investigate a stabbing. Barrett returned the defendant to the police station, where defendant made a statement admitting he had started the fire by throwing matches onto the cardboard on the porch.

Barrett testified that since he had independent knowledge that a window was broken and that the fire had started inside the house beneath this window and not on the porch, he accused the defendant of breaking the window. The defendant acknowledged that there was a broken window at the house, but he denied that he broke it. Barrett stopped the interview about midnight, after the defendant refused to make a taped statement because he was too tired.

The next morning, on February 19, 1991, at about 10:17 a.m., Barrett, accompanied by Detective Corey, continued his interview with the defendant. At the beginning of the interview, Corey orally and informally advised the defendant of his rights. Barrett also noticed that the defendant had a cut on his arm which had been covered by a long-sleeved shirt the day before. This prompted Barrett to question the defendant again about the broken window and to ask about the cut on his arm. The defendant denied he received the cut from the broken window, but he admitted he “flicked” two matches through the broken window.

Barrett discontinued the interview with the defendant to view a videotape of the fire. In the videotape, Barrett saw that the water faucets in the bathroom and in the kitchen had been left running.

Barrett resumed the interview with the defendant after the videotape, with Officer Echols being present. Echols was introduced to the defendant by Barrett as being a fingerprint expert. Barrett then told the defendant that the water faucets had been turned on at the scene of the fire, that Echols had obtained fingerprints from the water faucets, and that the fingerprints matched the defendant’s, even though no fingerprints had been obtained from the scene of the crime. After Barrett told the defendant about the fingerprints, the defendant admitted that he went inside the house and turned on the water faucets.

Barrett accused the defendant of not taking this matter seriously and showed the defendant photographs of the scene of the fire, which revealed the burned bodies of the victims. Barrett stated that, after this, the defendant became like a “whipped puppy.” The defendant then confessed to being inside the house, starting the fire, attempting unsuccessfully to wake Scott up after the fire began, turning on the water faucets, and panicking and leaving the house after the fire started to increase in size.

Barrett taped the defendant’s confession. The tape recording and the transcription of the recording were not admitted into evidence because, for a period of time, the tape was unaccounted for and hence there was a chain-of-evidence problem.

Barrett admitted on cross-examination that he knew the defendant was in a special class at school, but he did not know any details about the class. Barrett knew the defendant was “slow,” but he did not inquire into his reading ability.

Detective Randy Corey testified that he was present for the taping of the defendant’s statement on February 19, 1991, and that he had advised the defendant orally of his rights before the taping. Corey had not, however, obtained a written waiver from the defendant. Corey was also unable to recall exactly what he had said to the defendant when he gave him his rights.

Craig Hansen, who was employed by the Illinois State Police in the Bureau of Forensic Science, testified that he met with Detectives Barrett and Corey and the defendant on February 18, 1991, at about 7 p.m., at the Southern Illinois Forensic Center in Carbondale to administer a polygraph examination to the defendant. Hansen gave the defendant a consent form to read and sign before talking to him. It was Hansen’s practice to give the consent form to the person, to step out of the room so the person could review the form, and then, when he returned, to ask the person if he had any questions. Hansen followed this procedure with the defendant. According to Hansen, when he returned to the room, the defendant indicated he had concerns regarding the statements on the form about having his statement videotaped and monitored. Hansen scratched out that portion of the form and underlined other portions of the form which the defendant had concerns about but which Hansen said he explained.

Hansen was told that the defendant was “slow” before he gave the defendant the consent form, but he was not told that the defendant was mentally handicapped. Hansen did not explain the consent form to the defendant before the defendant read it. Hansen explained that, because the defendant was 17 years of age, he was required to have a statement of consent from the parent or legal guardian. Hansen gave the statement-of-consent form to Corey, who took the form to defendant’s grandmother to sign.

Hansen testified he advised the defendant orally of his Miranda rights before administering the polygraph examination at the time that he had given the defendant the consent form, but Hansen was unable to recall exactly what he had said. He did not obtain a written waiver from the defendant. Hansen stated Barrett and Corey told him they had given the defendant his rights before coming to the lab.

After the polygraph examination, Hansen told the defendant that the test showed clearly that he was not telling the truth. Up until this time, the defendant had denied setting the fire, but after the test, the defendant confessed to setting the fire.

On cross-examination, Hansen could not recall if he had inquired about the defendant’s ability to read or if he had explained the Miranda rights to the defendant. Hansen admitted he did not tell the defendant that the results of the polygraph examination were inadmissible in court.

The State also presented the testimony of seven other law enforcement officers, who testified about their contacts with the defendant from 1985 until 1989. None of the officers testified positively that the defendant had been given Miranda warnings during any of these contacts, which consisted primarily of curfew violations or possession of stolen bicycles. Additionally, most of the officers ended the encounters by taking the defendant home to his grandmother.

Jeffrey Kellogg, a psychologist, testified he conducted a fitness examination of the defendant in April 1991. Kellogg determined the defendant did not suffer from any emotional or psychological disorder other than mild mental retardation. An intelligence test Kellogg administered to the defendant revealed that the defendant’s IQ (intelligence quotient) was between 50 and 70. Kellogg found the defendant’s sight-reading ability (but not for content), spelling, and mathematical skills were between a second- and third-grade level. Kellogg was aware that the defendant was in a special education class at school.

Kellogg was impressed in his interview with the defendant by the defendant’s cooperativeness. He stated that when the defendant did not understand, the defendant would ask or tell him; otherwise, he responded to the content of his questions. Kellogg determined that the defendant’s sense of time is easily confused, and that you have to plot things in his experience by referring to a happening rather than to a specific time.

Kellogg stated that generally, mentally handicapped persons “expect the world to be a safer and more honest place than nonretarded people.” Thus, an unfamiliar setting, unless frightening, might seem supportive to the individual. Kellogg also stated that leading questions to a mentally handicapped person could produce an interview the police wanted, and a mentally handicapped adolescent may say “yes” to statements of the police just to get out of a situation quickly.

It was Kellogg’s opinion that the defendant had the ability to waive and that he understood his Miranda rights, since his rights had been given repeatedly to the defendant, since the defendant had prior experience with the police, and since the officers explained the rights to him at the taped interview. Kellogg stated that the vocabulary in the Miranda warnings would be beyond the defendant’s comprehension, but that simplification and repetition would help him understand.

On cross-examination, Kellogg agreed that rote recitation of the Miranda rights is not appropriate with the defendant, and that the reading of the rights and defendant responding affirmatively would not indicate that the defendant knowingly and competently waived his rights. Similarly, a written waiver would create problems for someone of defendant’s intellectual capacity. Kellogg also admitted that a material misrepresentation could make a retarded person confess to a crime he did not commit. It was Kellogg’s understanding that the defendant had been interviewed by the police at least a half a dozen times, and that he had been given his Miranda warnings on those occasions.

Paul Brinker testified that he is employed by the Department of Children and Family Services (DCFS). DCFS became guardian of the defendant in 1984; however, the defendant lived with his grandmother, and she controlled the defendant’s educational needs. Brinker knew the defendant was in a life-skills program.

Brinker received a call on February 18, 1991, from Cathy Shimp advising him that the defendant had been arrested. Brinker called the Carbondale police department and talked to Lieutenant Hill. Brinker told Hill that DCFS was the defendant’s guardian and asked if the defendant wanted an attorney. Lieutenant Hill told Brinker that the defendant had already made a statement and he did not need or want an attorney. Hill advised Brinker the defendant had been arrested on a battery complaint only and said nothing regarding the arson charge.

Dr. Michael Althoff, a psychologist, testified that he had done a psychological evaluation of the defendant in April 1991. The results of this evaluation revealed that the defendant’s understanding of his rights was minimal and that there were significant problems with his ability to waive these rights. Althoff found that when the defendant is unsure, he will state affirmatively that he understands even when he does not. He also found that the defendant is subject to undue influence and that he would tend to say what is suggested he should say. Althoff explained that language is frequently a barrier in dealing with mentally handicapped individuals.

Althoff stated that the defendant would have significant problems in understanding a Miranda form and the consent form presented to the defendant by Hansen. It was Althoff’s opinion that it would be difficult for the defendant to read the consent form in its entirety, and even if someone read the form to defendant, there is no guarantee that the defendant would understand it. When asked specifically about the line on the consent form which Hansen said he had scratched out at the defendant’s request after he read the form, Althoff noted that the defendant would not understand the words “educational,” “research,” “consent,” “monitoring,” and “examination” and possibly other words contained in the statement.

The defendant testified that he has never testified in court and that he has never been in jail before. The defendant could not recall reading or signing the rights form. He also could not recall talking to anyone after his arrest or talking to the two officers and being tape-recorded. When asked to read a rights form, the defendant read the form as follows:

“You have the right to remain silent. Any attorney you say can and will be hold against you in — you against you in court of law.
You have — you have the right to talk to a lawyer and have him present with your — rights—you are began questioning. If you cannot afford to hire a lawyer, one will be appointed to you, represent you for, before any questioning, if you wish. You can decide that any time of exercise these rights and not also any questions you may or, or may any, any statements.
I have right — read—I have right — read the about statements. If may right and any — what is this word?
Q. [THE COURT] Understand.
A. Understand each of those rights.”

When asked to tell the court what the rights were that he had just read, the defendant responded:

“You have the right to remain silent. Anything can be in court—
You have to remain silent. Anything could be held against you in court of law.
Q. [THE COURT] What does that mean?
A. I don’t understand what that means.
Q. Tell me the rest of your rights that you just read to me.
A. If questioning — if we — what is that, questioning? I don’t understand.”

The defendant also indicated he did not understand the admonishment that he could exercise his rights at any time and not answer questions. When asked to read the consent form provided by Craig Hansen and the consent form he signed for Dr. Althoff, the defendant also exhibited great difficulty in reading these documents. Defendant’s understanding of a polygraph examination was that “they hook the things up to you.”

Following this hearing, the court entered an extensive order stating the facts of the case and its findings. As was noted at the beginning of this opinion, the court held that the defendant’s statements were not voluntary and that he did not knowingly and intelligently waive his rights. We now consider the State’s appeal.

The State’s first contention is that the court’s determination that the defendant did not knowingly and intelligently waive his rights is against the manifest weight of the evidence. The State argues that the defendant’s understanding is shown through Kellogg’s testimony that defendant was “pretty good” at figuring out the meaning of words that he heard spoken to him, that the defendant had the ability to waive his rights, and that he understood what he was doing when he waived those rights. The State also notes that the defendant had been advised of his rights five times, that each time he indicated he had understood those rights, and that each time he had an opportunity to inform the officials that he did not understand his rights. The State further argues that the police officers testified that the defendant appeared to understand and gave appropriate responses to the questions. Additionally, the State alleges the defendant exhibited understanding when he told Hansen he disagreed with having his polygraph examination videotaped and had Hansen strike that language from the consent form. The State also points out that the defendant’s initial denial is consistent with his understanding of his rights and exhibits the defendant’s overt attempt to escape culpability. We disagree.

The supreme court, in People v. Bernasco (1990), 138 Ill. 2d 349, 562 N.E.2d 958, discusses extensively the constitutional requirements that a defendant must knowingly and intelligently waive his rights in Miranda-type situations and, in addition, that the waiver or confession must also be voluntary. Bernasco, in a case factually similar to this one, also involved a 17-year-old defendant with subnormal intelligence and a fourth-grade reading and comprehension level. The supreme court in Bernasco stated that for a defendant to make an intelligent and knowing waiver, there must be an intentional abandonment of the privilege, a defendant must know what he is doing, and he must understand both the nature of the right and the consequence of the decision to abandon it. (Bernasco, 138 Ill. 2d at 360, 562 N.E.2d at 962-63.) The supreme court also stated that, at a minimum, “to waive rights intelligently and knowingly, one must at least understand basically what those rights encompass and minimally what their waiver will entail.” (Bernasco, 138 Ill. 2d at 363, 562 N.E.2d at 964.) In reviewing a court’s determination that a defendant’s waiver of rights was knowingly and intelligently made, the reviewing court will not reweigh the evidence but will consider only whether the court’s decision was against the manifest weight of the evidence. (Bernasco, 138 Ill. 2d 349, 562 N.E.2d 958.) The court also noted in Bernasco that whether a defendant intelligently waived his rights is essentially a question of fact for the trial court. (Bernasco, 138 Ill. 2d at 368, 562 N.E.2d at 966.) We conclude that the trial court’s determination that the defendant did not knowingly and intelligently waive his rights was not against the manifest weight of the evidence.

Both psychologists testified that a rote reading of the Miranda rights to the defendant would be problematic to the defendant’s understanding of his rights and that many of the words contained in the rights would be beyond the defendant’s understanding. Kellogg testified that repetition and simplification may aid the defendant’s understanding of his rights. Althoff testified that the defendant may say he understands his rights even when he does not.

The evidence does not show that the defendant was advised of his rights repeatedly or that the admonishments were given in a form sufficient to provide him with an understanding of-what his rights were that he was to waive. Officer Priddy admonished the defendant by reading the form to the defendant, but Priddy neither inquired after each admonishment if the defendant understood, nor did he attempt to explain or simplify the rights. Similarly, Detective Barrett read the rights from the waiver form and did not simplify or explain further these rights to the defendant; however, he did ask the defendant after each admonishment if he understood.

Hansen testified that he advised the defendant of his rights before he administered the polygraph examination to the defendant, but he was unable to recall what he had said, and he obtained no written waiver from the defendant. In the same vein, Detective Corey advised the defendant of his rights informally before the defendant gave his tape-recorded statement, but he, too, did not obtain a written waiver and was unable to recall his wording of the rights to the defendant. These advisements are consistent with the trial court’s conclusion that they were.insufficient to provide defendant with an understanding of his rights when defendant’s age (17 years of age), his education (in the eleventh grade, but in a special education class in which he was learning life skills), and his intelligence level (an IQ of 67 or less and a second- or third-grade functional level) are considered.

Defendant’s prior experience with the police must also be considered, for, if the defendant had been given his rights on numerous other occasions, he might have had sufficient understanding to waive his rights. The evidence presented revealed the defendant had had many encounters with the police as a juvenile, but there was no concrete evidence that he had been given his Miranda rights on those occasions. In addition, the encounters with the police were often short and were more supportive than frightening to the defendant. After many of his encounters with the police, they escorted him home.

Another consideration in reviewing the defendant’s knowing and intelligent waiver of his rights is the defendant’s testimony at the hearing. It was apparent from his attempt to read the rights form that he did not know many of the words and did not have a comprehensive understanding. The facts that the advice is repeated and that a defendant states he understands his rights do not assure an intelligent understanding unless he possesses the intelligence to understand the warning. (People v. Long (1991), 217 Ill. App. 3d 940, 578 N.E.2d 26.) Common sense tells us that there cannot be an intelligent understanding of Miranda warnings if the defendant cannot hear or if the warnings are read in English to a person who does not understand English. A subnormally intelligent person may be no different from a deaf person or a person who understands little English in intelligently understanding the Miranda warnings. Here, the trial court was justified in concluding that defendant was unable to understand his rights without simplification and explanation of the words contained in the Miranda warnings.

We now consider whether the defendant’s statements to the police were voluntary. The voluntariness of a confession is determined from the totality of the circumstances (People v. Thomas (1990), 137 Ill. 2d 500, 561 N.E.2d 57), and a review of the voluntariness includes many of the same factors considered in determining whether the defendant knowingly and intelligently waived his rights, i.e., his mental ability, his familiarity with the language, his age, his education and his experience. (Bernasco, 138 Ill. 2d 349, 562 N.E.2d 958.) We will not reiterate those factors considered in our foregoing discussion of the defendant’s waiver of his rights; however, other factors not considered previously, but which contribute to the voluntariness of a confession, will be discussed.

One factor to consider is whether the defendant’s confession was coerced. It has been held that coercion can be mental as well as physical. (People v. Martin (1984), 102 Ill. 2d 412, 466 N.E.2d 228.) Here, the State has raised, as separate issues, that the court erred as a matter of law in holding that any statement made after an accused has learned he failed a polygraph examination is inadmissible, and that the court erred in finding that the defendant’s statements were involuntary after being falsely informed that fingerprints found at the scene of the crime matched his. We find that the court considered the polygraph examination and the misrepresentation regarding the defendant’s fingerprints as two factors, among others, which comprised mentally coercive tactics under the totality of the circumstances presented in this case. Thus, while the State is technically correct that statements made after being informed of failing a polygraph examination are not automatically inadmissible (Thomas, 137 Ill. 2d 500, 561 N.E.2d 57), such a practice can be considered as a factor in the voluntariness of a confession. (See People v. Sickley (1983), 114 Ill. App. 3d 167, 448 N.E.2d 612.) This practice, combined with the defendant's mental capacity and his suggestibility, can become a coercive tactic designed to make the defendant confess and can undermine the voluntariness of the confession. It is interesting to note that the defendant did not make any inculpatory statements until after he had been told that the polygraph examination revealed he was not telling the truth.

Similarly, the misrepresentation by the police regarding the defendant’s fingerprints being found at the scene of the crime was a mentally coercive tactic designed to obtain a confession from the defendant. While, standing alone, this deception might not be sufficient to vitiate the voluntariness of the defendant’s confession, when considered with the other factors in this case (People v. Martin (1984), 102 Ill. 2d 412, 466 N.E.2d 228), the trial court’s finding of lack of voluntariness of the defendant’s confession is further supported.

The State lastly contends that the six instances of overreaching and police misconduct listed in the court’s suppression order do not support the court’s decision as these instances are irrelevant. Without going through these specific instances, suffice it to say that these instances were part of the totality of the circumstances. We find that these particular instances, with the exception of the court’s consideration of the polygraph examination and the misrepresentation on the fingerprints, were not the basis of the court’s decision, but they reinforced the court’s conclusion. What is important is that the factors relied on by the court were relevant and proper, and the court’s determination that the defendant’s statements were not voluntary was not against the manifest weight of the evidence.

We recognize the seriousness and necessity of removing an arsonist and murderer from society as soon as possible. The police and some members of the public must feel at times that the courts have created some kind of game wherein the police lose if they do not strictly adhere to arbitrary rules. The protection of constitutional rights, however, is not being arbitrary. Further, the law and the rules as to confessions are designed to ensure that any confession obtained from a defendant is trustworthy. After all, society is not being served by the police obtaining a false confession from á subnormally intelligent suspect, while the real criminal remains free.

We are not requiring the police to be psychologists or to have a psychologist on call when the police are endeavoring to obtain a confession from a suspect. We are suggesting that whenever the police know that they have a subnormally intelligent suspect the police should take extra care to ensure that this person understands the Miranda warnings and that the alleged confession obtained is not simply a repetition of what the police desire to hear in order to solve the crime. See People v. Giacomo (1993), 239 Ill. App. 3d 247, (for an example of the care and caution that the police used in obtaining a valid confession of a subnormally intelligent defendant).

For the foregoing reasons, the judgment of the circuit court of Jackson County granting the defendant’s motion to suppress is affirmed.

Affirmed.

CHAPMAN, P.J., and WELCH, J., concur.


author: JUSTICE GEIGER UNVERZAGT, J.,

text:
      In re MARRIAGE OF BRIAN WINNE, Petitioner-Appellee, and KAREN WINNE, Respondent-Appellant.
    Second District
    No. 2—92—0107
    Opinion filed December 30, 1992.
    Rehearing denied February 2, 1993.

      Maureen Flaherty, of Lehrer, Flaherty & Canavan, P.C., of Wheaton, for appellant.
    Robert R. Verchota, of Donovan & Roberts, P.C., of Wheaton, for appellee.
   JUSTICE GEIGER

delivered the opinion of the court:

The court dissolved the marriage of the petitioner husband, Brian Winne, and the respondent wife, Karen Winne. The wife brought this appeal from the court’s allocation and distribution of marital assets and debts, its dismissal of her petition for attorney fees, and its calculation of support for the couple’s three children. We reverse and remand for further proceedings.

The parties were married in September 1974, when the wife was 21 years old. Before the marriage, the wife had attended two years of college and worked for one year to save money. After their marriage, the wife worked until November 1975, when the husband’s employer, Arthur Andersen, transferred him to Australia for 21k years. Three children were born to the marriage: in August 1979, December 1981, and September 1986.

In December 1980, the parties purchased the marital residence for $104,000. The wife stayed at home with the parties’ three children, who were born in 1979, 1981, and 1986. The husband’s compensation from Arthur Andersen was $63,645 in 1986. In 1987, after he became a partner, he earned $138,663; his 1988 income was $172,661; in 1989 he earned $200,997. At trial, the husband testified that he had received $265,299 in total distributions from Arthur Andersen during 1990.

In 1987, the parties spent approximately $112,000 to remodel the marital residence, converting a construction loan into a mortgage loan. The husband vacated the marital home in February 1988 but continued to pay the $2,244 monthly mortgage payment, tax, and insurance on the residence. At the time of trial, the mortgage balance was approximately $187,000; the husband valued the home at $300,000; the wife valued the home at between $275,000 and $285,000.

The couple owned two vehicles. One was a 1983 Oldsmobile Cutlass Sierra against which there was no lien. According to the husband, it had a value of approximately $750, and according to wife its value was approximately $1,500. The parties’ other car was a 1987 Plymouth Voyager which had 18 loan payments of approximately $266 remaining due, for a total lien of $4,788. Its value was approximated at $10,000 by the husband and $8,500 by the wife.

The parties’ only savings account was in the husband’s name and had an approximate balance of $72,000 on February 1, 1991. The husband’s checking account was valued at approximately $6,000.

The court valued the husband’s Arthur Andersen partnership interest at $42,750 as of August 1990. The husband’s Keogh account was valued at $40,849. The court also received evidence that the husband had received a 1989 tax refund of $24,944. The husband also had a “pro forma” capital account. His firm makes allocations to that account, based on the firm’s annual performance. The husband is required to retain a portion of those allocations as supplemental capital. The funds left in the account accrue interest until they are withdrawn pursuant to the account holder’s request. In 1990, the firm allocated $41,417 to the husband’s account; that amount was based on the firm’s 1989 performance. The amount the husband was required to retain as supplemental capital for 1990 was $3,750.

The wife testified that the furnishings in the marital residence had a value of $15,000. The husband valued the furnishings at $40,000, basing his valuation on the furnishings’ cost.

The wife’s sole income, when the husband left the marital residence in February 1988, as before, was money he provided. According to the wife, in the beginning of 1988, the husband provided her with approximately $1,500 monthly. In November, he decreased his monthly payment to $300. In December, the wife opened several department store credit accounts in her name and used them to make purchases for herself, the children, and the house. In 1989, she opened Discover and Mastercard accounts. In January 1989, the husband resumed $1,500 monthly payments, pursuant to court order.

In October 1989, a new court order required the husband to pay $3,500 in monthly temporary maintenance. The order provided that his payments for mortgage, insurance, taxes, and car loans were to be deducted from that amount. The wife was left with approximately $1,000 monthly. According to the husband, he made the following direct payments to the wife: $22,687 in 1988; $19,974 in 1989; and $11,789 in 1990. According to the husband’s calculations, his direct payments to the wife for the 34 months at issue averaged $1,601 monthly.

After the husband moved from the marital residence, the wife began gainful employment in April 1989. Then, she became licensed and opened an in-home day-care center. She continued the day-care work until August 1990. Her 1989 tax return shows that the day-care business had a gross income of $7,700. In September 1990 she obtained part-time employment at Glen Ellyn News, earning a gross weekly amount of $117. She testified that she had little training for employment and that she had never done secretarial work. She planned to begin full-time work at Glen Ellyn News. The wife’s debts incurred after the separation include $15,000 of credit card debt; a $2,500 debt to her father and brother for a retainer for her first attorney; $13,000 in attorney fees to her first attorney; $250 to her accountant; and a $2,000 cash advance she took for a retainer for her second attorney. Her affidavit of monthly expenses shows expenses of $5,539 monthly.

In his 1989 tax filing, the husband filed as a single taxpayer, claiming each of the parties’ three children as a deduction. He also deducted $19,974 in alimony, plus his payment of mortgage interest. His expense for medical insurance for himself and the three children is approximately $3,578.

The husband also covers a $1 million term life insurance policy with a $1,300 annual premium. Additionally, as an Arthur Andersen partner the husband is required to make a certain level of charitable contributions. His mandated contributions for 1989 were $10,315; $5,322 of that amount were paid directly by Arthur Andersen. His Arthur Andersen partnership also causes him to pay principal and interest on his partnership loan and to meet certain unreimbursed expenses. He estimated that his annual cost for charitable contributions, partnership loan payments, and unreimbursed expenses equals between 6% and 8% of his gross income.

Regarding tax payments, the husband testified that Arthur Andersen does not -withhold taxes for its partners. He pays conservatively estimated quarterly tax payments and applies overpayment to future tax liability. For 1989, his State income tax payments were approximately $7,500 on his $200,997 income. He also paid $41,906 in Federal income tax and $6,250 in self-employment tax. His $21,702 tax overpayment was applied to his 1990 estimated taxes.

In its dissolution order, the trial court granted the parties joint custody of the children; residential custody was awarded to the wife. The husband was ordered to pay $3,850 in monthly child support. That amount was based on the husband’s 1990 net income, as indicated by the wife; it did not reflect the husband’s 1990 pro forma capital account allocation of $40,969.

The court also found that the husband’s election to draw down his pro forma capital account with the firm during the past three years had increased his taxable income, decreased his net income, and increased his prepayment of taxes pursuant to Arthur Andersen’s policy. The court noted that the husband had not designated an amount for drawdown in 1991. Also, the court ordered that the husband would be entitled to dependency tax exemptions for the two older children; the wife was awarded the dependency tax exemption for the youngest child.

The court additionally found that the wife was presently unable to adequately support herself, and it ordered the husband to pay $750 monthly in nonmodifiable rehabilitative maintenance. Maintenance was ordered payable for two years or until the occurrence of a statutory termination event.

The court ordered the parties to equally share day-care expenses for the children. It also ordered the husband to continue to pay medical, dental, and life insurance for the children’s benefit and to pay the children’s health expenses costing $100 or more per incident. The court made no specific provision for college expenses, but stated that those expenses would be governed by section 513 of the Illinois Marriage and Dissolution of Marriage Act (the Act) (Ill. Rev. Stat. 1991, ch. 40, par. 513).

Under section 503 of the Act, the court noted the great disparity in the parties’ relative abilities to acquire capital assets and income. It found that the marital home had a value of $300,000, with $113,000 equity; and it ordered the husband to quitclaim his interest in the home to the wife. The wife was to assume all liability on the property.

The court awarded the husband his $72,000 savings account that had been designated for payment of taxes. It also awarded him his $40,849 Keogh savings, his $6,000 checking account, his $42,849 Arthur Andersen partnership interest, the 1983 Oldsmobile, and his coin collection. The court placed no value on the furnishings in the marital residence, but provided that if the parties did not agree upon division of the furnishings, they would be sold at auction. In either case, the wife would receive 60% of the appraisal or proceeds. The wife also was awarded the 1987 Voyager.

The court specifically found no dissipation. It divided the marital portion of the husband’s non-Keogh retirement benefits, awarding 60% to the wife. Regarding the husband’s pro forma capital account, the court ordered the husband to inform the wife if that account was used for ordinary income. Regarding the $35,000 that had been allocated to that account for 1991, the husband was ordered to pay the wife 60% of that amount. Additionally, the court ordered that any Federal tax refunds received in cash be paid 60% to the wife.

The court assigned to the wife all debts she had incurred since the parties’ separation. That debt included her attorney fees. The court also awarded her the checking and savings accounts in her name, approximately $90.

Following a further hearing, the court dismissed the wife’s petition for attorney fees and denied reconsideration. The wife brought this appeal.

The wife’s first argument on appeal is that the court abused its discretion in the distribution of the marital assets and debts. According to the wife’s calculation, she received approximately 40% of the marital assets, with her share being further depleted by her tax liability on her share of the husband’s pro forma account. Further, according to the wife, considering her lack of liquid assets and the extent of her credit card and attorney fee debt, she would need to liquidate every asset to pay her indebtedness.

According to the wife, the husband, in contrast, is left virtually debt free, with the lion’s share of the couple’s assets. She notes his superior ability to accrue assets. Additionally, the wife challenges the court’s ruling that the parties’ tax refunds should be divided only if the refund is received in cash rather than being applied to future tax liability. Further, the wife objects to the court’s reasoning underlying its award of the husband’s $72,000 savings account for his payment of taxes. The wife argues that the husband already had paid estimated taxes of $82,000 and that those completed payments will be more than sufficient to cover the husband’s actual 1990 Federal and State tax liability.

Another specific objection raised by the wife regards the court’s treatment of the parties’ furnishings. She asserts that the court ignored both her inventory and her testimony as to the furnishings’ value. She also asserts that the court ignored the fact that during the proceedings the husband purchased furniture shown to have an approximate value of $15,000, using funds from a savings account. According to the wife, in recognition of the allocation of marital funds to purchase the husband’s furniture, an equitable and fair distribution would allocate the furnishings in the marital residence to her.

According to the wife’s summary, considering the length of the marriage, her contribution as a homemaker and mother, her significantly lower earning potential, and her lesser prospects for acquiring assets in the future, no reasonable person would make this asset and debt distribution.

Under section 503(d) of the Act, the trial court must divide the marital estate in just proportions; relevant factors include the duration of the marriage; each party’s contribution to the family unit, including a homemaker’s contribution; the relative economic circumstances of each spouse at the time the division becomes effective; the spouses’ relative abilities for future acquisition of assets and income; and tax consequences of the division. (Ill. Rev. Stat. 1991, ch. 40, par. 503(d).) The division of the marital estate rests within the sound discretion of the trial court and will not be disturbed on appeal absent an abuse of discretion. (In re Marriage of Miller (1983), 112 Ill. App. 3d 203, 207.) The court’s division of assets will be disturbed only when no reasonable person would take the view adopted by the trial court. In re Marriage of Los (1985), 136 Ill. App. 3d 26, 30.

In arguing against disturbing the court’s property division, the husband notes that when he left the marital residence in February 1988, he left the wife debt free, excepting the loan balance on the Voyager and the remaining mortgage debt. He paid all outstanding credit card and contractor debts. Further, through the time of trial, he paid all mortgage, tax, and insurance costs for the marital residence and all the loan and insurance payments on the Voyager. He suggests that considering those amounts and the direct payments that he made to the wife, the wife’s claims that his payments did not satisfy her expenses demonstrate her wrongful spending and her efforts to “get even with him.”

The husband also argues that the wife’s calculation of the parties’ relative shares of the award omits the distribution of equity in the marital furnishings and in the automobiles. He additionally notes the lack of liquidity in his pro forma account, his Keogh account, and his partnership interest. Further, he notes the expenses, including tax expense, connected with dividing those latter funds.

According to the wife’s characterization, excepting the value of the marital residence’s furnishings and the value of the parties’ automobiles, the court assigned her marital assets with equity totaling $135,690; the husband was assigned equity totaling $202,250. The wife’s award was composed of the $113,000 equity in the marital residence, 60% of the husband’s pro forma account, and her under $100 in personal savings and checking. The husband’s award was composed of his $72,000 savings account, 40% of his pro forma account, the parties’ $24,944 1989 tax refund, his $40,849 Keogh account, his $42,750 partnership account, his $6,000 checking account, and his coin collection.

In reviewing the trial court’s dissolution order, we initially observe that we find no abuse of discretion in the court’s assignments of value to the parties’ various assets and debts. Those conclusions were well within the court’s discretion, given the conflicting testimony and the need to assess the witnesses’ credibility. Similarly, we find no independent abuse of discretion in the court’s failure to assign a value to the parties’ automobiles and marital furnishings or to its division of those assets. More broadly, however, we find that as a whole, the court’s distribution of assets and debts represents an abuse of discretion.

One of the items of dispute for assessing the relative equity allocated to each party is the allocation of tax consequences connected with division of the husband’s pro forma account. In awarding 60% of the account to the wife, the court did not address the allocation of tax consequences on the receipt of the funds. The wife argues that the extent of equity awarded her is even less than it appears, because her pro forma award will be diminished by the tax liability associated with the withdrawal of the funds. The husband suggests that he will bear full tax liability for the fund withdrawal and that his equity is correspondingly less than that asserted by the wife.

To consider the preliminary question of allocation of pro forma tax liability, we observe that the court’s comments regarding the pro forma account omitted any tax discussion. Further, the court’s particular language provided that the husband “is ordered to pay [the wife] 60% of the [proforma amount] that has been allocated for 1991.” The pro forma allocations are not taxed when allocated, but are subject to taxation as ordinary income when withdrawn from the account.

We find that the language of the court’s award does not clearly reveal the court’s intention regarding allocation of the pro forma tax consequences. However, for the sake of reviewing the argument that the court’s award was within the court’s proper discretion, we construe it in the manner most consistent with that conclusion and find that the husband correctly concludes that the award places the tax burden for the pro forma distribution on him, and not on the wife. That conclusion is bolstered by the fact that in contrast to its approach on the pro forma division, in dividing the husband’s pension benefits, the court specifically ordered each party to bear the tax burden for his respective share of the money.

Thus, for the sake of our further analysis we have rejected the wife’s argument that because of the pro forma tax issue the equity amount allocated to her should be seen as an even smaller share. We go on, then, to observe that even so, the husband’s relative distributive share of the parties’ assets is substantially larger than the wife’s. Thus, we continue by examining the husband’s further argument that his allocation is not as large as it first appears.

In his argument, the husband claims that the approximately $25,000 tax refund he was awarded and that the wife includes in her calculation of his receipts was a “non-existent” asset already applied to the parties’ 1990 tax liability. We are not persuaded by his assertion. We observe that the husband may not, in fact, have full freedom in his use of those monies. Nevertheless, with their award he was, at least, empowered to use the full amount to apply to the tax obligation. The mere fact that the husband, thus, could use marital funds to pay a tax obligation demonstrates that the award clearly was a meaningful one to him.

We next address the husband’s presentation presumably directed towards the court’s award to him of the parties’ $72,000 savings account. In making its award, the court remarked that those monies were earmarked for the payment of taxes. The husband recounts that in addition to his 1989 tax overpayment credited to future tax liability, he had made 1990 tax payments of $42,600. Also, he notes his estimates that he would pay an approximate $15,000 with his April 1991 extension and $80,000 estimated taxes in 1991. Despite this recounting, the husband offers no argument why the court’s allocation of this account should receive some special interpretation. We find no reason to adjust our evaluation of the equity in this asset in assessing the relative equity amounts received by the parties.

Lastly, we address the husband’s argument that the court’s division was an acknowledgment of the illiquidity of certain assets and of the costs associated with dividing them. Again, we are unpersuaded by the husband’s presentation. Any division, for example, of the husband’s Keogh and partnership interest, should consider the costs associated with that division. (See Ill. Rev. Stat. 1991, ch. 40, par. 503(d)(11).) Nevertheless, contrary to the husband’s suggestion, the existence of such costs is not justification for a property distribution that unjustly favors one of the parties.

Under this award, the husband’s share of the marital assets exceeded the wife’s. Additionally, the husband received nearly all the couple’s liquid assets. Furthermore, the husband is the only party with the current ability to earn significant income; his long-term financial outlook is also vastly brighter than the wife’s. We find that, considering the length of the marriage and the parties’ relevant contributions and economic positions, the division of assets represents an abuse of discretion. See In re Marriage of Miller (1983), 112 Ill. App. 3d 203, 207.

In reaching our conclusion that the property division is inequitable, we further question the court’s determination that only tax refunds received in cash would be divided by the parties. We find that the division of a cash refund is not a significantly simpler prospect than is the division of an amount applied to future tax liability. We further find that a refund not received as cash is as clearly a marital asset as is a cash refund. Lastly, we find no justification for the husband to receive the full amount of any refund on sole consideration that he would apply it to future taxes. Although the court’s restriction could be appropriate in the context of an otherwise just division, we do not consider it defensible in this case.

Based on the foregoing, we reverse the court’s property distribution. That decision, of course, is closely connected with any analysis of the wife’s second argument on appeal: that the court abused its discretion in ordering her to pay her entire credit card and attorney fee debt. Initially, we find that, contrary to the husband’s assertion, the wife has not waived any alleged error in the court’s order on attorney fees. The wife’s counterpetition, her trial court argument, and her petition for reconsideration, together with her evidence of her attorney fee indebtedness, adequately preserved the issue. Regarding her credit card debt, however, the wife presents no authority in her appellate presentation. (See 134 Ill. 2d R. 341(e)(7).) We find that portion of her argument is waived.

Under section 508(a)(1) of the Act, the court may order either party to pay all or part of his own or the other party’s attorney fees and costs incurred in the maintenance of an action under the Act. (Ill. Rev. Stat. 1991, ch. 40, par. 508(a)(1).) A party seeking fees must show a financial inability to pay and that the other spouse is financially able; financial inability does not mean destitution, but that payment would strip the petitioner of his means of support and undermine his financial stability. (In re Marriage of Osborn (1990), 206 Ill. App. 3d 588, 602.) An award of attorney fees rests in a trial court’s sound discretion, and we will not disturb the court’s decision unless it represents an abuse of discretion. 206 Ill. App. 3d at 602.

Because an attorney fee award is interconnected with the overall allocations in the dissolution (In re Marriage of Carr (1991), 221 Ill. App. 3d 609, 612), we cannot offer a final opinion on whether the denial of attorney fees would be an abuse of discretion under a new property allocation. Nevertheless, under the trial court’s property division now on review, we find little record support for the court’s finding that the wife is able to pay her attorney fees. The wife was awarded virtually no liquid assets. Her income and potential for current income are both meager. Additionally, she was awarded only $750 in monthly maintenance. The record strongly suggests that her repayment of her rather extensive attorney fees would significantly undermine her financial stability. (See Osborn, 206 Ill. App. 3d at 602.) On remand, the trial court will reconsider the matter in its full context.

The wife’s final argument on appeal is that the court reversibly erred in calculating child support. More specifically, the wife argues that in determining child support the court erred in not including the amount allocated to the husband’s pro forma account as part of his “income” for determining support.

According to the wife’s undisputed assertion, the amount credited to the husband’s pro forma account for 1990 was $37,667. In setting child support, the court observed that it would not consider the pro forma amount “since there is no guarantee that [the husband] will draw down the account in future years and, in fact, cannot do so in 1991.” On appeal, the wife argues that the husband’s pro forma receipts are compensation and an amount that should be included in the husband’s total income for calculating child support.

Under section 505 of the Act, the court shall determine minimum child support for two children at 25% of the income of the supporting parent. (Ill. Rev. Stat. 1991, ch. 40, par. 505(a)(1).) The actual amount of support awarded may vary from that guideline, with consideration of factors such as the financial resources of the children and the financial resources and needs of each parent. (Ill. Rev. Stat. 1991, ch. 40, pars. 505(a)(2)(a), (a)(2)(b), (a)(2)(e).) “Net income,” upon which statutory support is calculated, is subject to specific exclusions for income and social security tax, mandatory retirement contributions required by law or as a condition of employment, union dues, health and hospitalization insurance premiums, prior support obligations, repayment of income-production debts, necessary medical expenditures, and certain expenditures for the benefit of the children and the other parent. Ill. Rev. Stat. 1991, ch. 40, par. 505(3).

In support of the trial court’s decision to exclude the pro forma monies from its child support calculation, the husband argues primarily that the court’s award is sufficient, considering the extent of the children’s reasonable needs. He also notes the difficulty of calculating his full income, as adjusted by capital-call and unreimbursed business outlays, the possibility of a capital call, and the related inadvisability of drawing down the proforma capital account.

We find that neither any difficulty in calculating the husband’s full income nor the sufficiency of the child support award in relation to the children’s reasonable needs is dispositive of this issue. Under section 508, the necessary initial calculation to determine child support is the supporting parent’s income. (Ill. Rev. Stat. 1991, ch. 40, par. 505; In re Marriage of Partney (1991), 212 Ill. App. 3d 586, 590-91.) Furthermore, we find no case or statutory basis to support exclusion of the husband’s full proforma allocation from his “net income” for purposes of calculating child support.

The husband presents no case analysis for why the pro forma allocations should not be considered to be “income.” Further, while the clear language of section 505 enumerates several exclusions for child support “income” calculations, and while section 505 could be read to exclude from “income” calculation any portion of a “pro forma like” allocation that must remain in an allocation account as a buffer for capital drawdown (see Ill. Rev. Stat. 1991, ch. 40, par. 505(a)(3)(h); Ill. Ann. Stat., ch. 40, par. 505, Supplement to Historical & Practice Notes, at 177 (Smith-Hurd Supp. 1992)), we find no basis in the clear statutory language of the Act (see Toys “R” Us, Inc. v. Adelman (1991), 215 Ill. App. 3d 561, 568) for the trial court’s determination that it should not at all consider the pro forma allocation in relation to its child support calculation. By excluding the husband’s full pro forma allocation from that calculation, the trial court abused its discretion. See In re Marriage of Dodds (1991), 222 Ill. App. 3d 99, 102-03.

Based on the foregoing, we reverse the judgment of the circuit court of Du Page County. We remand the cause for the trial court to reconsider a proper award distributing the parties’ marital assets and obligations, determining child support, and considering the payment of the wife’s attorney fees.

Reversed and remanded.

BOWMAN, J., concurs.

UNVERZAGT, J.,

dissenting:

The wife asserts that the trial court abused its discretion in the distribution and allocation of marital assets, debts and attorney fees. She asserts that the trial court erred as a matter of law in finding that the pro forma account was not income for purposes of determining child support.

The record in this case approaches 1,200 pages, including 25 exhibits received in evidence, many of which are complicated accounting matters. The hearings before the trial court covered a period from February to December 1991.

After a painstaking and meticulous determination of judgment by the able and experienced trial judge, the majority reverses the judgment and sends the whole thing back to the trial court to be redone.

In my view, the majority is committing serious error which will cost the parties dearly in time, effort, aggravation and expense. Little improvement can be expected upon retrial.

The distribution of marital property rests within the sound discretion of the trial court and will not be disturbed on appeal absent an abuse of discretion. (In re Marriage of Scafuri (1990), 203 Ill. App. 3d 385.) I am of the opinion that the trial court’s decision regarding the distribution of assets is a proper exercise of its broad discretion.

Initially, I note that the trial court’s judgment appealed from placed no value on the furniture in the marital home. The husband testified it was worth $40,000, and the wife testified it was worth no more than $15,000, and later $8,515. In any event it is no small amount. The trial court provided that if the parties could not agree upon a value the property should be sold at public auction and the proceeds divided 60% to the wife and 40% to the husband. The parties neither agreed to a value nor was a public auction held. The court’s judgment is therefore nonfinal in that regard. The wife asks that we award the furniture and furnishings to her. The majority finds no error in the trial court’s failure to assign a value to the parties’ automobiles and marital furnishings, or a division of those assets. I therefore assume there will be a public auction and the proceeds divided 60-40 according to the court’s judgment.

The majority states that broadly speaking “we find that as a whole, the court’s distribution of assets and debts represents an abuse of discretion.” (239 Ill. App. 3d at 281.) I take issue with this determination. First, the majority discussed the trial court’s determination that 60% of the pro forma account is to be turned over to the wife. The majority acknowledges that when this happens the account is converted to income and thus taxable to the husband, although received by the wife. That of course is one of the reasons the trial court awarded the property as it did.

The majority next discusses the award of the $72,000 savings account to the husband which the trial court remarked was earmarked for the payment of taxes. The majority quite incomprehensibly states “We find no reason to adjust our evaluation of the equity in this asset in assessing the relative equity amounts received by the parties.” (239 Ill. App. 3d at 282.) Hardly convincing and hardly supporting reversal of the trial court award.

Section 503(d) of the Act (Ill. Rev. Stat. 1989, ch. 40, par. 503(d)) allows the trial court discretion to divide marital property into “just proportions,” taking into consideration all of the factors listed as well as any others deemed relevant to the case. (In re Marriage of Aschwanden (1980), 82 Ill. 2d 31, 37.) The touchstone of proper apportionment is whether it is equitable in nature, with each case resting on its own facts. (In re Marriage of Hart (1990), 194 Ill. App. 3d 839, 847.) The division need not be equal to be equitable. (In re Marriage of Riech (1991), 208 Ill. App. 3d 301.) The trial court’s discretion in these matters will not be disturbed absent clear abuse. Discretion has been abused where no reasonable man could adopt the trial court’s position. Hart, 194 Ill. App. 3d at 847.

Here, it cannot be said that no reasonable man would adopt the trial court’s distribution. The majority should therefore affirm.

The majority also confuses the issues of tax refunds. The trial court clearly provided that the husband would be entitled to any refunds for the periods he filed singularly. The trial court provided for the division of refunds for those refunds for returns where the parties filed jointly. The majority again incomprehensibly states: “Although the court’s restriction could be appropriate in the context of an otherwise just division, we do not consider it defensible in this case.” 239 Ill. App. 3d at 283.

Finally, the allowance of attorney fees and the proportion to be paid by each party are within the trial court’s discretion and will not be disturbed on appeal absent an abuse of discretion. In re Marriage of Scafuri (1990), 203 Ill. App. 3d 384.

The majority alleges that “[t]he record strongly suggests that her repayment of her rather extensive attorney fees would significantly undermine her financial stability.” (239 Ill. App. 3d at 284.) It should be noted that the wife never complained of these fees and agreed to them. There was no adversarial hearing in this regard. Certainly, when the trial court was awarding the wife 60% of most of all the available assets, the provision that each party pay its own fees was not an abuse of discretion.

The majority’s failure to come to grips with the pro forma account as it relates to income is another reason to affirm the judgment below.

The trial court awarded the available pro forma account like an asset, at 60-40 division. It provided for notice to the wife as to when future pro forma amounts would be requested. Thus, the amount could at that point be declared income or it could be available as it was intended by the partnership as a capital account subject to calls. There was no error in the trial court’s determination.

The judgment of the circuit court of Du Page County should be affirmed.