Appeal from Circuit Court of Cook County, Criminal Division;
the Hon. NATHAN COHEN, Judge, presiding. Affirmed.
MR. PRESIDING JUSTICE DRUCKER DELIVERED THE OPINION OF THE COURT.
In January 1964 the defendant, Michael A. DeSimone, was convicted of murder after a jury trial and sentenced to the penitentiary for not less than twenty nor more than forty years. Defendant appealed to the Supreme Court which transferred the case to this court. In his pro se presentation defendant contends that the court erroneously, over objection, allowed his confession to be introduced into evidence and that the court committed various additional prejudicial errors, thereby depriving him of a fair trial.
In 1956 defendant was sentenced to the penitentiary for the crime of auto larceny and while incarcerated assaulted another prisoner and a guard. Upon the expiration of his term defendant was committed to the Chicago State Hospital for the mentally ill in December of 1959 as a person "in need of mental treatment." While a patient therein defendant and another patient, Kenneth Anderson, left the hospital on May 4, 1960, and allegedly committed the crime of murder to which he (defendant) confessed on May 6. *fn1 At no time did the defendant request an attorney. On October 31, 1960, defendant was convicted of that crime upon a plea of guilty and was sentenced to a term of ninety-nine years in the penitentiary. That conviction was reversed and remanded by the Supreme Court on the ground that the trial court should not have accepted the plea of guilty without first holding a sanity hearing (People v. DeSimone, 28 Ill.2d 72, 190 N.E.2d 831).
The record on this appeal shows that a sanity hearing to determine defendant's competence to stand trial was conducted prior to trial wherein the jury found that defendant "was at the time of impaneling of the jury and now is sane." There is no complaint of error in that hearing.
Defendant urges three grounds in support of his contention that the confession should have been suppressed. First, relying upon Escobedo v. Illinois, 378 U.S. 478, he asserts for the first time in his appeal that at the time of his confession he was not apprised of his right to remain silent and of his right to consult with an attorney. Since defendant never requested counsel the ruling in Escobedo is inapplicable. The doctrine of Escobedo does not require the rejection of a voluntary confession merely because the defendant was not affirmatively advised of his right to counsel and of his right to remain silent. People v. Miller, 33 Ill.2d 439, 211 N.E.2d 708; People v. Hartgraves, 31 Ill.2d 375, 202 N.E.2d 33. Furthermore, since no such claim was raised in the trial court, the applicability of Escobedo cannot be considered for the first time on review. People v. Buckholz, 32 Ill.2d 482, 207 N.E.2d 451.
The second ground urged by defendant is that since he was a patient in the Chicago State Hospital at the time of his confession he was non compos mentis at that time. A pretrial hearing was held upon defendant's motion to suppress his confession wherein he alleged solely that at the time thereof he was non compos mentis. The prosecution presented five witnesses who testified that defendant was sane at the time of his confession but the defendant presented no evidence that he was insane. The court held that the defendant was sane at the time of his confession and denied defendant's motion to suppress the confession. A hearing was also held during the trial (before a different judge than at the first hearing) upon defendant's motion to exclude his confession from consideration as evidence on the ground that he was non compos mentis at the time of the confession and consequently that the confession was involuntary. The prosecution's evidence was substantially the same as in the prior hearing *fn2 and the court again determined that defendant was sane at the time of his confession and denied the motion to exclude the confession. The record shows that the defendant was committed to the Chicago State Hospital as a person "in need of mental treatment." The testimony of Dr. Raul Zaldivar, the clinical director of the hospital during defendant's period of confinement and the supervisor of the team that managed him during that time, was substantially as follows:
It [the diagnosis of the defendant's mental condition in December of 1959] was sociopathic personality, anti-social reaction. The diagnosis is a classification pertaining to a personality type. Sociopathic personality is a social diagnosis in more sense than it is mental illness or psychiatric diagnosis. It implies the type of personality which is characterized by inability to learn from experience and inability to accept moral or social codes of society. . . . It does not contain deviations of thoughts or hallucinations or delusions or abnormalities of perception. . . . On the basis of the record, my opinion is that he was sane in December of 1959.
The witness further testified that defendant was sane continuously during the period of December 12, 1959, to May 6, 1960; that on May 6 (the date of the confession) he examined the defendant at the request of the Assistant State's Attorney and concluded that at that time the defendant was sane, knew what he was doing, understood what he was saying, was legally responsible, and could cooperate with counsel.
Dr. Argelia Heller testified that she was completing her psychiatric training as a resident at the Chicago State Hospital during April, May and June of 1960; that she observed the behavior of the defendant at approximately fifteen group ward meetings; that an average of 45 to 50 patients attended each meeting which lasted one hour; that she is trained to give a medical opinion on the sanity of a person from these observations; and that from her observations she concluded that the defendant was sane during the entire time.
Jerome Lillian testified that he is a psychiatric social worker and was employed at the hospital for the period of December, 1959, through May, 1960; that he observed the defendant's behavior at the aforementioned ward meetings and in addition personally interviewed the defendant during that period of time. He further testified that:
There was never any question in my mind as to his sanity. There was no inappropriate behavior at the time I saw Mr. DeSimone in the hospital. It was my opinion that Michael was sane.
The witness stated that his opinion includes the period up to the date on which defendant left the hospital.
Nina Mason, an activities therapist's aid (not a psychiatrist), testified that she had been employed at the Chicago State Hospital for eight years, which included the period of defendant's confinement, and that in her opinion defendant was sane.
[2-9] Confessions are competent evidence only when voluntarily made, and the question of their competency is basically one for the trial court. In determining whether a confession by an accused is admissible the court need not be convinced beyond a reasonable doubt of its voluntary character. People v. Gavurnik, 2 Ill.2d 190, 117 N.E.2d 782. On review the decision of the court on the question of whether a confession was voluntary will not be disturbed unless manifestly against the weight of the evidence or unless the court has clearly committed an abuse of discretion. People v. Hartgraves, 31 Ill.2d 375, 202 N.E.2d 33; People v. Di Gerlando, 30 Ill.2d 544, 198 N.E.2d 503. Since commitment to a mental institution does not necessarily indicate that the accused lacks the mental capacity to stand trial (Withers v. People, 23 Ill.2d 131, 177 N.E.2d 203; People v. Woods, 26 Ill.2d 557, 188 N.E.2d 1), that same commitment does not necessarily indicate that he lacked the mental capacity to voluntarily confess to the crime of murder. So long as the accused is capable of making a narrative of past events or of stating his own participation in the crime, his statements are admissible against him. People v. Townsend, 11 Ill.2d 30, 141 N.E.2d 729. The mental subnormality on the part of one confessing to a crime does not of itself deprive the confession of its voluntary character. The confession remains admissible so long as the subnormality has not deprived the person in question of the capacity to understand the meaning and effect of the confession. People v. Townsend, supra. The testimony at both hearings on defendant's motions to suppress his confession amply supports the conclusion of the court in each instance that defendant was sane at the time of his confession, that the confession was voluntary, and that it should be admissible into evidence.
Defendant's third and final ground for excluding the confession is that it names three persons as witnesses thereto but bears the signature of only one; and that in addition, the confession is signed by Officer Steve Pizzello who is not listed thereon as a witness. From this assertion defendant contends that this confession (which he signed) should not have been admitted into evidence, citing Illinois Revised Statutes, 1959, chapter 38, section 729. *fn3 That statute requires the defendant to be furnished with a list of witnesses to his confession. However, defendant does not allege that he was not furnished with the requisite list (defendant in fact admitted that he did receive a copy) but only that all parties named as witnesses on the confession did not affix their signatures thereto and that one extra signature appeared thereon. Therefore the statutory authority cited by defendant has no applicability to the instant case. Moreover, even if the ...