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People v. Mcgee

SEPTEMBER 23, 1965.

PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,

v.

FRANK MCGEE, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Cook County, Criminal Division; the Hon. ROBERT L. HUNTER, Judge, presiding. Judgment affirmed.

MR. JUSTICE SULLIVAN DELIVERED THE OPINION OF THE COURT.

Defendant was convicted of the offense of attempt (robbery). The trial court, sitting without a jury, found the defendant guilty and sentenced the defendant to the Illinois State Penitentiary for a period of 3 to 5 years.

This appeal was originally taken to the Supreme Court of Illinois, which court transferred the matter here.

In support of the appeal the defendant contends that the defendant's confessions were not voluntary, that they were the result of physical violence administered by the police, and that they materially influenced the finding of guilty. The defendant also contends that the State failed to satisfy the statutory requirement of furnishing defendant's trial counsel with a list of the names and addresses of all persons present when the oral confessions were made.

In order to decide the two points raised by defendant it will be necessary to set forth the evidence adduced at the trial.

At approximately 1:00 a.m. on November 17, 1962, police officer Serges Joseph, dressed in civilian clothes, was walking west on the north side of 63rd Street in Chicago while on duty with the Task Force Undercover Unit of the Chicago Police Department. Officers John Neary and William Struke were riding in an unmarked vehicle about ten feet behind Joseph, and Officers Pearson and Gomez were walking across the street intermittently drinking from a bottle. The State's testimony was that the defendant approached Officer Joseph and stopped him. As the defendant approached, Officer Joseph had an opportunity to observe his face at all times. When the defendant reached Officer Joseph, he had his right hand in his coat pocket. He pushed Joseph into a doorway and said, "This is a stick-up, I have a pistol, give me your money." The officer responded, "I ain't going to argue with you. I have my money in my left hand pocket." As the defendant attempted to withdraw the money from the officer's pocket the officer hit him across the chin with his left hand and then told him that he was a police officer, and that the defendant was under arrest. At this point the defendant started to struggle, and Officer Neary, who was about ten feet away, came to the aid of Joseph. After the defendant was subdued, he was put in the unmarked vehicle and taken to the Seventh District Station. After the defendant was subdued Joseph and Neary searched him and found no weapon of any kind on the defendant. Joseph had told the defendant where the money was and raised his hands over his head.

Officer Joseph testified that after he first announced his office, he placed the defendant under arrest and after he first hit the defendant, a struggle ensued, whereupon Neary "busted out of the wagon" and came to his assistance; that they together subdued the defendant. Joseph also stated that he imagined he struck the defendant "many times" and that he did not stop to count them. He also testified that he "dropped a left hook right on him . . . right on the jaw." Also, that Neary struck him "just enough times to keep him subdued and get the cuffs on him."

Neary said there was a slight struggle and that Joseph hit the defendant once or twice before Neary got to him; that he did not think that Joseph hit him after he arrived on the scene. He also stated that the defendant had a few bruises when he took him to the Englewood Police Station. Neary denied that he hit the defendant.

The defendant testified that Joseph continued to beat him after the defendant was handcuffed; that some teeth were knocked out and that the defendant was thrown into the truck face down with his hands behind him.

Joseph denied that he had knocked out any of defendant's teeth but admitted that the defendant had lacerations and received first aid in the hospital.

The defendant further testified that Joseph said, "I didn't knock this guy out yet. I am going to knock him out now." That Joseph thereupon banged the defendant's head against the floor of the truck and beat the defendant on the back. The defendant testified that he then passed out.

Officer Neary testified further that while he was riding in the truck at the time of the attempted robbery Officer Joseph had his radio on and that Neary could hear the conversation between Joseph and the defendant in the truck. Neary testified that the defendant said to Officer Joseph, "This is a stick-up, I have a pistol, give me your money." Neary also testified that Officer Joseph announced his office and placed the defendant under arrest, after which there was a slight struggle. When he (meaning the defendant) came swinging at Officer Joseph, Neary jumped out and helped Officer Joseph make the arrest.

Neary testified that he was with the defendant at the Seventh District Police Station at about 1:15 or 1:30 in the morning following the arrest. That Officers Joseph, Struke, Pearson, Alvin Weeks and Neary were present and that the defendant was also present. He did not testify to the conversation held at that time, however, Officer Joseph testified that after transporting the defendant to the Seventh District Station, Englewood Station, he asked the defendant why he did this and why he wanted to stick him up. The defendant then said, "I wanted your money." An objection was made to that testimony and defense counsel moved to strike it, for the reason that all of the witnesses that were supposed to have been present were not listed on the list of witnesses the State had given to defendant's previous counsel at the time of arraignment. The list contained the names of three police officers. The court properly sustained the objection. The names of the three persons which appeared on the list of witnesses were Serges Joseph, Roosevelt Pearson and John Neary, all of whom were police officers. The defendant contends that since the trial judge merely sustained the objection and did not act on defendant's motion to strike this confession that the trial court considered this confession in determining the guilt of the defendant. We do not think that this follows from reading the record. This case was tried without a jury. The motion to strike was included in the defendant's objection to the confession. The court, after much discussion, said the following, after considering the statute relevant to required list of witnesses: "It doesn't say present to the oral statement. It says all persons present at the time of the oral statement. If there were other persons present that you haven't supplied a list, I will sustain the objection." This clearly indicates to us that the confession to which the objection had been made was no longer considered as part of the evidence by the court. The only objection made to this first oral confession was based upon a failure of the State to supply a list of witnesses which contained all of the persons present. No objection was made at any time by the defendant to any confession based upon police brutality or any evidence that the defendant was coerced or intimidated into making a confession.

The defendant then contends that because the defendant had been taken to a hospital to be administered to for his bruises, that the State was under a duty to prove by a preponderance of the evidence that the confessions were voluntary. At no time during the trial was any ...


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