SECOND DIVISION
MAY 16, 2000

1-98-0962

PRESIDING JUSTICE COUSINS delivered the opinion of the court:

The respondent, a minor, was charged by petition with threecounts of first degree murder for the fatal shooting of a Chicagopolice officer. The trial court denied a motion by the State tohave the respondent tried as an adult. This court affirmed. Inre R.T., No. 1--96--0519 (1996) (unpublished order under SupremeCourt Rule 23).

The respondent then filed a motion to suppress, which thetrial court denied after a hearing. After a bench trial therespondent was adjudicated delinquent and committed to theDepartment of Corrections, Juvenile Division.

The respondent now appeals, arguing that the trial courterred in denying the motion to suppress. In a supplementalbrief, the respondent also argues that he must be resentenced,because the statute under which he was sentenced (705 ILCS 405/5-33 (1996)), has been found to violate the Illinois Constitution.

We affirm the judgment of delinquency but vacate thedisposition and remand for resentencing.

BACKGROUND

Frank Mathews picked up R.T. at his house on the evening ofSeptember 15, 1995. Mathews was a past boyfriend of R.T.'s older sister, Kanika. Mathews showed R.T. a handgun that he had boughtand then he placed it in the car. Later that night, as they weredriving to the lake, they noticed that they were low on gas. R.T. suggested that they snatch a purse in order to get money forgas. R.T. saw a woman standing in the street by a black sportutility vehicle (SUV) talking to a man and another woman. Theman was off-duty police officer James O'Connor. As they droveby, R.T. leaned out of the window and grabbed the woman's purse,knocking against her and breaking her ankle in the process. O'Connor got in the SUV and pursued them, flashing his lights andhonking his horn. O'Connor then pulled alongside them. Theycould see that O'Connor had a gun and was telling them to pullover.

A few blocks later, the SUV passed them and stopped,blocking their way. O'Connor exited. Mathews put his hands up,keeping the handgun in his lap. R.T. ducked down because hethought there would be shooting. O'Connor said "Put your handsup!" Mathews shot O'Connor and started to drive away. O'Connorreturned fire, hitting Mathews. The car went out of control, hita fire hydrant and then crashed into a wall. Both O'Connor andMathews died of their injuries. R.T. climbed out a window andran away, but was apprehended a few blocks from the scene of thecrash.

R.T. was charged by petition for delinquency with firstdegree murder under an accountability theory and also under afelony murder theory. The State moved to have him tried as anadult, but the trial court denied this motion. We affirmed thetrial court's decision on appeal. In re R.T., No. 1--96--0519(1996) (unpublished order under Supreme Court Rule 23). ThenR.T. filed a motion to suppress incriminating statements he hadmade. He argued that his statements should be suppressed becausethe police had not allowed his mother to see him before or duringquestioning and because he did not have the capacity tounderstand Miranda warnings.

At the hearing on the motion to suppress, Chicago policesergeant James McDonnell testified as follows. Around 3 a.m. onSeptember 16, 1995, McDonnell was on patrol in a marked policecar when he picked up a call about a traffic accident nearby. Ashe approached the scene of the crash, he saw R.T. coming out frombehind a van. When R.T. saw the police car, he retreated backbehind the van but reemerged in response to McDonnell's order.McDonnell saw that R.T. had numerous cuts on his face. R.T.explained that he had been in a traffic accident. McDonnellheard something on the police radio about someone being shot atthe scene of the accident. He asked R.T. if he had been shot,and R.T. said that he had not but that the gun was in the carwith his brother.

McDonnell then read R.T. his rights. After each right heasked R.T. if he understood and R.T. said "yes." At that pointChicago police officer Alex Horstein drove up. McDonnell askedHorstein to stay with R.T. and told him that paramedics werecoming. Then he went to investigate the crash.

Horstein testified that he was summoned to the scene of theaccident by Sergeant McDonnell. He heard McDonnell read R.T. hisrights and R.T. say that he understood them. Shortly afterMcDonnell left, the paramedics arrived and began administeringfirst aid to R.T.. While treating R.T.'s cuts, the paramedicsasked him what had happened. Horstein heard R.T. say that theyhad been "doing some purses" to get some money and that the gunwas in the car with his brother. The paramedics took R.T. to thehospital, and Horstein followed in his squad car.

Doctors treated R.T. in a curtained-off area. Horsteinstood outside the curtain. Another officer came by and toldHorstein that R.T. had shot and killed Officer O'Connor. Horstein then heard R.T. say "I didn't kill no policeman." Later, R.T. asked Horstein to come over to the bed and told him:"I didn't kill nobody. I didn't shoot no policeman. All we werehere for, we did some robberies to get some money." Shortlythereafter another officer came and took over for Horstein.

Chicago fire department paramedic George Radka, one of theparamedics that treated R.T., testified that R.T. told him that"We have been robbing purses; they're shooting my car and hit thewall." Radka told a nearby police officer that someone might bechasing R.T. with a gun and he asked R.T. to repeat his statementto the officer. The officer listened but did not ask anyquestions. Radka asked the police officer to escort them to thehospital because of safety concerns.

Detective John Dawson, the detective assigned to investigatethe shooting, testified that R.T.'s mother Rhenee arrived at thepolice station at about 7 in the morning. She was with heryounger son Kashawn, Kanika, and her uncle. At about 7:45 Dawsonand his partner, Detective Danz, placed Rhenee and her young sonin one interview room and her daughter in another. Dawson toldRhenee that R.T. was in the hospital being treated forsuperficial injuries but that he would be fine and they would betransporting him to the station soon. After Rhenee and herdaughter had each been questioned, she asked if she could see herson soon because Kashawn had a football game at 10.

Dawson testified that, at about 10, Rhenee asked again whereher son was. He told her that R.T. was just then arriving at thestation but that it would take a while for him to be processed. He gave Rhenee the station phone number and introduced her toChicago police youth officer Harry Drochner, who had beenassigned to R.T.'s case.

Drochner testified that when he arrived at the hospitalshortly after 7 that morning he heard Detective Moran readingR.T. his rights. R.T. indicated that he understood each right. Moran informed R.T. of the allegations against him and then askedhim some questions. At 8:30 Assistant State's Attorneys (ASA)George Andrews and Debra Lawler arrived and questioned R.T.. ASAAndrews read R.T. his rights, explaining each one, and informedhim that since he was 14 he could be charged as an adult.

At about 10, Drochner testified, he went to the policestation. R.T. had gone from the hospital slightly earlier. Atthe station, Drochner was introduced to Rhenee and other ofR.T.'s relatives. No one had told him while he was at thehospital that R.T.'s mother was waiting at the police station. He told her that she could see R.T. as soon as processing wascompleted. Rhenee asked how long processing would take. Shethen left in order to take Kashawn to a football game. R.T. gavea handwritten statement at Andrews' request. R.T. reviewed thestatement and signed it without making any corrections. Drochnerthen called Rhenee and told her that R.T. had been charged withrobbery and murder.

ASA Andrews testified that when he arrived at the station hewas told that R.T.'s mother had been there but had left in orderto take her younger son to a football game. Before R.T.'sstatement was taken, they allowed him to use the bathroom andgave him something to eat and drink. Andrews asked R.T. if hehad been treated well and he said yes. R.T. said he was fine anddid not appear to be under the influence of any medication. Andrews read the statement aloud to make sure that R.T.understood it. R.T. signed a form a the top of the statementindicating that he understood his Miranda rights and was waivingthem.

Rhenee testified that the police called her around 5:15 a.m.and told her that her son and Frank Mathews had been arrested forarmed robbery. She immediately woke up her other children andwent with them to the station. Upon their arrival, around 6a.m., they were taken to a little room and told that someonewould come to talk to them. After they had waited for an hour,two police officers came by. She asked when she could see R.T.and was told that they would need to ask her some questionsfirst. The officers then left. After about 45 minutes two otherofficers came by. Again they told Rhenee that they would need toask her some questions before she could see her son. Afteranother 15-minute wait, another pair of officers came in. Theyinterviewed Rhenee after taking Kanika and Kashawn to a differentroom. A detective told her that R.T. was in the hospital and waswell, but he would not give her specifics as to what hadhappened. When she asked what hospital he was at, the policesimply told her that he would be brought to the station and thatshe could see him when he got there.

Then Rhenee's aunt and two of her uncles arrived. About10:45 she was told that R.T. had come in but that he would needto be processed before she could see him. She asked how longthis would take, because she had to take Kashawn to his footballgame, which was for the championship. Rhenee testified that theofficer told her that she might as well go because it would bequite a while and suggested that she call back around 5 p.m.. She then left.

Dr. Edmund Kearney testified on behalf of R.T. that theminor did not have the mental capacity to properly understand theMiranda warnings. He had given R.T. a test which showed his IQto be 72. He was of the opinion that R.T. had been honest withhim. On cross-examination, however, the State introducedevidence showing that R.T. had been disciplined at school moreoften than he had told Dr. Kearney, that his statements to Dr.Kearney about his drug and alcohol use were not consistent withwhat he had told others, and that, according to a 1993 IQ test,R.T.'s IQ was 92. After hearing this information, Dr. Kearneyadmitted he was less confident than before in his conclusion thatR.T. could not understand the Miranda warnings. The State alsointroduced evidence that R.T. had had several previous encounterswith the police and that in the course of these encounters he hadbeen read his rights and seemed to understand them.

The trial court denied the motion to suppress, and after abench trial, R.T. was adjudicated delinquent. The trial courtcommitted him to the Department of Corrections, JuvenileDivision.

R.T. now appeals, arguing that the trial court erred infinding that he had the capacity to understand the Mirandawarnings and in finding that his statements were voluntarydespite the fact that he could not meet with his mother before orduring questioning. R.T. also contends that he must beresentenced because the statute under which he was sentenced, andwhich did not allow for probation, has been found to violate thesingle subject rule of the Illinois Constitution (Ill. Const.1970, art. IV,