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The People v. Nemke

OPINION FILED JANUARY 23, 1962.

THE PEOPLE OF THE STATE OF ILLINOIS, DEFENDANT IN ERROR,

v.

GERALD STANLEY NEMKE, PLAINTIFF IN ERROR.



WRIT OF ERROR to the Criminal Court of Cook County; the Hon. DAVID A. CANEL, Judge, presiding.

PER CURIAM:

Defendant was tried by a jury for murder, was found guilty, and was sentenced to death. On this writ of error, he contends that the trial court erred in overruling his motion to suppress purported confessions and in admitting the confessions in evidence, in refusing defendant's offers of proof, in preventing explanation by defendant of his flight and concealment and in refusing other proffered evidence, in denying a motion for a directed verdict, and in denying a motion for a new trial on the ground of improper argument by the prosecution.

The evidence is undisputed that Marilyn Duncan was sixteen years old, in good health, and working as a waitress on April 29, 1960; that she was seen with the defendant after 9:00 P.M. on that date, and that she was found unconscious by police officers at 8:00 A.M. the following day, lying along the Northwestern Railroad behind a factory at 5802 Northwest Highway in Chicago. She was found barely alive in a pool of blood and with extensive injuries about the head and chest. A pair of sun-glasses, a fifth-gallon bottle of wine, and three bricks were found a few feet from her body. She was removed to a hospital, where she died without regaining consciousness on May 1, 1960.

The victim's wallet containing a photostatic copy of the birth certificate of defendant's sister, was found on May 2, 1960, about 50 to 75 yards from where her body had been found. Defendant was arrested on the same day and brought to the police station at about 5:30 P.M. and turned over to detectives O'Neill, Rauhut, and Jack and Sergeant Murphy. O'Neill, Rauhut and Jack questioned the defendant about the Duncan case until about 7:30 P.M., during which time he said he knew Marilyn Duncan and admitted ownership of the sun-glasses, but persistently denied harming Miss Duncan, and a partial written statement protesting his innocence was prepared. The taking of this statement was interrupted about 7:30 P.M. by the arrival of Chief of Detectives McMahon, who took over the questioning alone with defendant.

At about 8:20 P.M., McMahon called Captain Deeley, Sergeant Murphy and Detective Jack into the room to verify a story of defendant's admitting guilt, and about 8:30 P.M., defendant was taken to the State's Attorney's office, where he gave and signed two written statements confessing his guilt. He also had his clothes taken from him, was returned to the station about 1:30 A.M. on May 3, 1960, and from there was taken to the scene of the crime where he purportedly re-enacted it.

At the preliminary hearing on the motion to suppress confessions, the State first put McMahon, Chief of Detectives, on the stand, who testified that he questioned defendant between 7:20 and 8:30 P.M. on May 2, when only the two were present, at which time defendant orally admitted his guilt. McMahon testified that he made no promises to defendant, and did not threaten, intimidate, strike or coerce him, and added that the defendant was most cooperative. He specifically testified on cross-examination that the defendant was not advised of his right to counsel, of his constitutional right not to make a statement or that any statement he might make might be used against him. The State then put on the court reporter, assistant state's attorney, and police officers, who were present in the State's Attorney's office at the time the written confessions were taken, and the court limited the cross-examination of them to their testimony in chief as to what occurred in the State's Attorney's office, although one of the police officers had been with the defendant at the station from 5:30 P.M. until Chief McMahon came in.

Defendant's counsel then testified that he had been retained by defendant's mother to represent the defendant, that he arrived at the police station about 7:30 P.M., identified himself, and demanded repeatedly to see the defendant but was repeatedly put off and denied access to the defendant, both by the police officials and on instructions from the State's Attorney's office, until defendant was removed to the State's Attorney's office about 8:30 P.M. These facts were not denied, and defense counsel did not see his client until the next morning in Boy's Court.

The defendant's mother testified to telephoning Detective Jack at the station at 6:00 P.M. and about 6:15 P.M. after hearing on the radio that the boy was in custody, but she was not permitted to testify as to the telephone conversations.

The defendant himself testified on the preliminary hearing, confirmed that he was intermittently questioned by Officer Jack and others from 5:30 until nearly 7:30, that he denied beating her, and after that he didn't say anything but "they just kept talking to me." He testified that he first learned the Duncan girl had died while a statement was being prepared that he didn't do it, the taking of the statement being interrupted by the arrival of Chief McMahon. He then testified that in response to McMahon's questioning he stated he had killed the girl. No claim was made of beating, third degree methods, or physical abuse at any time in the interrogation of the defendant. However, the trial judge repeatedly sustained objections on the part of the People when the defense attorney sought to elicit from the defendant the reason why he confessed.

Defense counsel made an offer of proof that the defendant's mother, if permitted, would testify that Officer Jack in the telephone conversations first denied that the boy was in custody and then on the second call turned from the phone and falsely called, "Jerry, your mother wants you to tell the truth." He made a further offer of proof that defendant, if permitted, would testify that the reason he admitted the slaying of the Duncan girl was that he was frightened, felt panicky, and had given up hope, and that the statements he gave were not the truth. These offers of proof were denied.

At no place in the record does it appear that defendant asked for counsel. All the witnesses present at the taking of the written statements and the giving of the oral statement to Chief McMahon testified. Not all of the police officers present during the period of interrogation from 5:30 to 7:30 P.M. during which guilt was denied were called, nor were the police officers who were called in by McMahon to confirm the giving of the oral statement, nor was their absence explained.

Defendant, relying primarily upon Crooker v. California, 357 U.S. 433, 2 L.ed.2d 1448, and Haley v. Ohio, 332 U.S. 596, 92 L.ed. 224, contends that his constitutional right to counsel, not to give evidence against himself, and to procedural due process were all denied when the confessions were admitted against him. This case presents again the recurring problem in the administration of criminal justice of reconciling the responsibility of law enforcement officers to solve crimes against our social order with the right of the criminal defendant, however guilty, to be tried according to constitutional requirements.

Defendant's contention that the trial court erred in admitting the alleged confessions rests upon four closely related but logically distinguishable arguments: (I) that the denial of access to counsel was such a denial of constitutional right as to preclude the introduction of the confessions; (2) that the confessions were involuntary and, hence, inadmissible; (3) that the trial judge unduly restricted the scope of inquiry at the preliminary hearing to determine the competency of the confessions; and (4) that all persons whose testimony would be material to the issue of the voluntariness of the confessions were not called as witnesses at the hearing nor was their absence explained.

The testimony of defendant's counsel that he was not permitted to see the defendant is undisputed in the record. The right of one who is being held in custody to consult counsel is expressly recognized by the statutes of Illinois. "An Act in relation to the holding of persons in custody without their being able to notify their families or have legal assistance," approved May 14, 1951, (Ill. Rev. Stat. 1959, chap. 38, par. 449.1) provides: "Whoever shall, while holding another person in custody, deny that other person his right to consult and be advised by an attorney at law, whether or not such person is charged with a crime, and whoever shall prevent another person held in custody from notifying his family within 24 ...


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