Appeal from the Circuit Court of Cook County, Criminal
Division; the Hon. NATHAN M. COHEN, Judge, presiding. Affirmed.
MR. JUSTICE MURPHY DELIVERED THE OPINION OF THE COURT.
In a jury trial, defendant, Walter Scott, was found guilty of burglary and was sentenced to the penitentiary for a term of 5 to 10 years. On appeal, defendant contends that (1) he was deprived of his constitutional rights in that incriminating statements obtained by the arresting officers without advising him of his constitutional right to counsel were introduced as evidence, and in that his trial counsel was unprepared and inadequate to defend him; (2) he was erroneously denied a change of venue; (3) prejudicial trial errors were committed; and (4) he was not proven guilty beyond a reasonable doubt.
On June 24, 1963, when James A. Stolp returned to his apartment at 7243 South Jeffery Avenue, Chicago, he found the back door was open, and it had several broken glass panes. There were glass splinters in the door and pieces of glass held together with white surgical tape lay on the floor. The apartment had been ransacked, and two cameras, two camera lenses, a suitcase, and $100 in currency were taken.
An investigating police officer, Edward Willett, on June 25, 1963, took pictures of fingerprints found on the glass on the floor. Later, on July 3, 1963, Joseph Mortimer of the police crime laboratory determined that the fingerprints found in the apartment were identical with the fingerprints of Walter Scott. With this information, Officers Wielosinski, Dooley and Ormond, without obtaining an arrest warrant, went to 1415 East 73rd Street, where Walter Scott was staying with the Walter Young family. They arrived at the Young apartment at about 1:00 p.m. on July 3, where they were informed by Mrs. Young that Scott was at work. The three police officers remained in the vicinity of the apartment until 3:00 a.m. on July 4, when Scott appeared and was arrested. After being placed in custody, a satchel he was carrying was examined, and it contained barber equipment and white surgical tape. Two of the arresting officers testified that he admitted the burglary and told them he had pawned one of the cameras. He produced a pawn ticket and gave it to them. When they arrived at the police station, he told them that the other camera was at a friend's house. The policemen went with him to the home of his friend and obtained a camera. On July 5, the policemen went to the pawn shop and in return for the pawn ticket given to them by the defendant, they received a second camera. At the trial, both cameras were identified by Stolp and received in evidence.
Defendant testified on direct examination that he was a licensed barber and a licensed beautician, and that he had been previously convicted of a felony. He denied that he committed the burglary and theft with which he was charged and stated that the police officers were lying when they said they had received a pawn shop ticket from him or that he had admitted "that I burglarized this particular home."
He further testified: "On the night that I was picked up I had white adhesive tape in my bag. I recall getting into the car with three officers and having a conversation with them. I gave them a ticket pertaining to a watch repair and a receipt for $4. . . . It is not a fact that I gave them a pawn ticket. . . . I gave them the watch ticket because that is all I had in my possession. They wanted to check it out to see if it was stolen. They questioned me about items they claimed were stolen from Mr. Stolp's apartment. They told me that some cameras had been taken. They asked me if I owned any cameras. I owned one camera which I bought. I am saying that I bought this camera. I bought it from James Thomas. I don't know where he is today. . . . I paid $35 for the camera. This camera was obtained at the apartment of Mr. O'Neill. I took the Police Officers over to this apartment to get the camera. Mr. Lucius O'Neill appeared at the window and handed the camera down that I had left there." Defendant stated further that he bought the camera to use in his business to advertise, and he had left it at Mr. O'Neill's apartment because "we had just `came' from the beach."
We consider first defendant's contention of deprivation of his constitutional rights. Initially, he contends that "under the circumstances here presented, the use at trial of a confession obtained by systematic interrogation after arrest without any warning to the defendant of his right to remain silent deprived him of his Fifth Amendment rights. We [defendant's counsel] also contend that the effect of that confession obtained without warning of his rights to counsel and to remain silent, combined with the trial court's refusal to afford defendant effective trial counsel after he had informed the Court of his counsel's unpreparedness deprived him of his Sixth Amendment rights."
It is not disputed that defendant was never informed by the police officers, during his initial police interrogation or at any other time, of his right to remain silent or of his right to the advice or assistance of counsel, nor is it disputed that defendant made no request for the assistance of counsel during his initial police interrogation. The testimony of the two arresting officers as to the admission of the burglary was received without objection on behalf of the defendant, and he testified the officers were lying.
Although the confession issue was not raised at the trial level, and defendant denies making any confession, we have considered this contention on appeal.
The cases cited by defendant in support of this contention include Escobedo v. Illinois, 378 U.S. 478, and People v. Dorado, 40 Cal Rptr 264, 394 P.2d 952. We have considered defendant's authorities, but we believe the pronouncements made in People v. Hartgraves, 31 Ill.2d 375, 202 N.E.2d 33 (1964), are controlling here. A failure to warn the accused does not compel a rejection of his confession of guilt. As said at page 379:
"[It] is an attendant circumstance `which the accused is entitled to have appropriately considered in determining voluntariness and admissibility of his confession.' 373 US at 517. . . .
"We do not, however, read the Escobedo case as requiring the rejection of a voluntary confession because the State did not affirmatively caution the accused of his right to have an attorney and his ...