APPEAL from the Circuit Court of St. Clair County; the Hon.
JOSEPH E. FLEMING, Judge, presiding.
A jury in the circuit court of St. Clair County found John Edwin Myers guilty of the murder of Carole Ballard and fixed the penalty at death. The court sentenced him to death and he appeals directly to this court.
Mrs. George Ballard testified that about 6 o'clock P.M. on August 30, 1961, her husband George, and their ten-year-old daughter, Carole, went fishing at Emge Lake on Route 460 in St. Clair County. She expected them home about 7 o'clock so that her husband could take some medicine, but they did not return. About 8 o'clock she and her son walked to the lake, which is approximately a mile from their home, and found her husband's automobile. She could not locate her husband and daughter. She called the Belleville police and about 11 o'clock that evening they reported that they had found her husband dead.
Harold Harrison and Harry Greenfield, deputy sheriffs of St. Clair County, testified that they found the body of Ballard. He was lying on his left side, his hands were tied behind his back with a white plastic clothesline. He had been shot in the back of the head.
Robert Borutta and Norman Simonin, Illinois State Police officers, testified that about 3:30 A.M. on August 31 they found the body of Carole Ballard. Her hands had been tied behind her back and a cloth tied across her mouth. She had been shot in the forehead. Clifford C. Kane, a physician and the St. Clair County coroner, testified that Carole Ballard died as a result of a gunshot wound in the head.
H.P. Graham testified that in the evening of August 30, 1961, a man, whom he identified as the defendant, and a girl came to his house. Defendant had a gun and demanded food. He robbed him of money and took his car and Margaret Wernicke, a member of the Graham household, as a hostage.
Defendant's confession which was admitted into evidence, after a preliminary hearing on its voluntariness, is long and detailed. In it he tells of his acquaintance with Donna Marie Stone, who was 13 years old at the time of the crime. He said that she had stolen a Bearcat Ruger .22 pistol from her uncle Leroy Sparks. He said that he was with her in August, 1961, while she was visiting her grandparents in Edwardsville. He was unemployed and was going to leave for St. Louis to look for work. She insisted on going with him and they started walking to St. Louis. They walked until evening and slept that night in a box car. The next day they walked until they got to the outskirts of Belleville where they spent the night at Emge Lake. After telling what they did that day he said, "Some time in the afternoon, around four or five o'clock, there was a man and a girl, and another man fishing in the lake. We sat at our camp and drank coffee. After the one man left, we walked part way around the lake. I told Donna to wait and I would go get the man and the girl. We had decided that I would bring them back and we would rob them and steal their car. I walked up to the man and the girl. They were just getting ready to leave. The man gave me a cigarette. I asked him if he caught any fish. It was getting dark. I reached in my pocket and pulled the gun. I told them to walk on back down the lake. When we got back to where Donna was, I told her to tie the man up. She had the rope with her. The man said don't hurt the little girl and I told him I wouldn't. When we tied up the man, the little girl started to cry. Donna tied his hands. I then gave her the gun and I tied the man's feet. I searched the man and took his wallet and his car keys. I knocked the man out by hitting him in the head with the gun. We then took the little girl back towards the railroad track thirty or forty feet. Donna had tied the girl's hands behind her back. I tied a handkerchief over her mouth. The little girl was crying again. I made the little girl sit in the weeds. I remember shooting the little girl in the forehead and the man in the back of the head, but I do not remember which one I shot first. We went over and tried to start the man's car. We could not get it started and I panicked. I even cut the wires on the ignition and tried to start the car." He then told in detail of going to Graham's farm house, stealing his car and taking Margaret (Wernicke) as a hostage.
Defendant first argues that his confession should not have been admitted into evidence. The record shows that he and Donna Marie Stone were apprehended about 2:00 o'clock A.M. on September 2, 1961, in Midland, Texas. About 6:00 o'clock that evening he made a confession to the Texas authorities and shortly after noon on the next day he made a confession to the Illinois authorities who had gone to Texas to question him. He filed a motion to suppress the use of either confession in evidence. After a hearing on the motion, it was overruled as to the confession given to the Illinois authorities and that confession was admitted. He argues that the confession given to the Texas authorities was coerced and, therefore, the subsequent confession given to the Illinois authorities should be held to be involuntary.
During the hearing on his motion to suppress, defendant testified that after he had been taken into custody, his outergarments were taken from him and he wore only a thin pair of pants and a shirt. He said that except for short periods of questioning by the police, he was kept in the drunk tank from 2:00 o'clock A.M. until 6:00 o'clock P.M. where the temperature was 45 degrees. He stated that he was never advised of his constitutional rights and on three different occasions he requested counsel, which requests were denied. He said that while he was being questioned, Donna Marie Stone was brought where he could see her crying and that parts of the statement taken from her were read to him, but that he was not allowed to see the statement. He also said that he did not have anything to eat and did not sleep from 2:00 o'clock A.M. until he confessed at 6:00 o'clock P.M. The next afternoon he said the Illinois authorities appeared and identified themselves. He stated that they did not advise him of his right to remain silent or his right to counsel but he admitted they advised him that any statement he made might be used against him. He then gave them a statement.
On cross-examination, defendant stated that he was never threatened, beaten or promised leniency by the Texas authorities. He said he knew he had a right to remain silent and refused to answer questions by the Texas authorities the first two times he was questioned. When he was asked if it was not a fact that he signed both confessions, he replied, "I got tired of being questioned and I signed the statements."
The confession given to the Texas authorities was not introduced into evidence nor did these authorities testify at the hearing on the motion to suppress. Robert Miskell, deputy sheriff of St. Clair County, Julius Luber, a member of the crime section of the Illinois State Police, and Maurice Joseph, chief deputy sheriff of St. Clair County, testified that they questioned defendant at the court house in Midland, Texas, shortly after noon on September 3, 1961. Their testimony indicates that the room where they questioned defendant was clean, light and ventilated. Defendant was clean and was dressed in denim slacks and a T-shirt. They said that they identified themselves and stated their purpose for being there. Defendant appeared to them to be calm, co-operative and not afraid. They testified that he did not complain of being cold, not fed, not allowed to sleep or any other mistreatment by the Texas authorities, but on the contrary had said he was not mistreated by the Texas authorities. The Illinois authorities knew of the prior confession, but they had not seen it. They said they advised defendant of his right to counsel which he refused. The officers said there was no interrogation and that defendant just began giving the statement in narrative and that it was taken in longhand. While the statement was being typed, they said defendant was taken to his cell for lunch. Thereafter the statement was given to him to read but he declined to do so without giving any reason for refusing. Deputy Miskell testified that "He [the defendant] said `You read it to me', or words to that effect." It was then read to him, one page at a time, and he signed each page.
Defendant relies heavily on Leyra v. Denno, 347 U.S. 556, 74 S.Ct. 716, 98 L.Ed. 948, where defendant, in a series of confessions, admitted murdering his parents. In that case Leyra was questioned by the police from sometime after 3 P.M. until 11 P.M. on Tuesday, from 10 A.M. until midnight on Wednesday and from 9 A.M. Thursday until about 8:30 A.M. on Friday when he was taken to his parents funeral. After the funeral he was allowed an hour and a half sleep. When the interrogation resumed, a microphone was placed in the room and Leyra, who was suffering from a severe sinus attack, was introduced to a Doctor Helfand, ostensibly for the purpose of treating his sinus trouble. Doctor Helfand, however, was a State employed psychiatrist skilled in hypnosis. For an hour and a half the techniques of a highly trained psychiatrist were used to break the will of Leyra who was already physically and emotionally exhausted. The doctor also made threats and promises of leniency, and Leyra, in a dazed condition, finally began to accept the psychiatrist's suggestions that he murdered his parents. The police then came into the room and took a confession. In holding the subsequent confessions involuntary the court stated, "All were simply parts of one continuous process. All were extracted in the same place within a period of about five hours as the climax of days and nights of intermittent, intensive police questioning. First, an already physically and emotionally exhausted suspect's ability to resist interrogation was broken to almost trance-like submission by use of the arts of a highly skilled psychiatrist. Then the confession petitioner began making to the psychiatrist was filled in and perfected by additional statements given in rapid succession to a police officer, a trusted friend and two state prosecutors." 347 U.S. 556, 561, 74 S.Ct. 716, 719, 98 L.Ed. 948, 952.
This case is a far cry from the Leyra case. Defendant admits that neither the Texas nor the Illinois authorities beat him, threatened him, or made promises of leniency. He testified that he was not fed and did not sleep from 2 A.M. until 6 P.M., but it is not clear whether the Texas authorities did not feed him or permit him to sleep or whether this was a matter of his own choice. It is also unclear how much of the time between the time he was taken in custody at 2 A.M. and the time that he confessed at 6 P.M. was spent in the drunk tank where he complained of being cold and how much was spent in the interrogation room with the Texas authorities. At any rate defendant testified that he signed the statement given to the Texas authorities because he was tired of being questioned and not because of any mistreatment. It is clear that after he made his statement to the Texas authorities at 6 P.M. he was fed and permitted to sleep and was not brought before the Illinois authorities until after noon of the next day. At this time, even according to his own testimony, he freely and cooperatively made a long detailed statement of the events leading up to, and including, the murder of the Ballard girl and her father.
Defendant further argues that the confession should not have been admitted under the holding of Escobedo v. Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977, because he says his three requests for counsel to the Texas authorities were each denied and because the Illinois authorities did not advise him of his right to counsel. The confession made to the Texas authorities was not admitted in this cause, and the Illinois authorities testified that they afforded defendant an opportunity to be represented by an attorney. In any event, the Supreme Court in Johnson v. New Jersey, 385 U.S. 719, 86 S.Ct. 1772, 16 L.Ed.2d 882, has ruled that the Escobedo holding and the guide lines of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, are not to be applied retroactively. In the number of cases announced this term we abided by our former decisions before Miranda and Johnson in trials commenced in this State prior to June 22, 1964, and June 13, 1966, the dates those decisions were announced, respectively. These cases ares People v. Jackson, 35 Ill.2d 162, People v. Thomas, No. 38464, People v. Heise, No. 38678, People v. Ostrand, No. 39066, People v. Le May, 35 Ill.2d 208, People v. Wallace, No. 39288, People v. Williams, Nos. 39515, 39524, cons. and People v. McGuire, No. 39531.
We are fully aware of the potential problems inherent in the admission of a confession after a prior confession has been made. However, we have carefully considered the evidence with reference to the Texas confession, which consisted solely of the testimony of the defendant, and conclude that it was not taken under circumstances which would necessitate the holding of involuntariness in the confession to the Illinois authorities.
The question of the admissibility of a confession is for the trial court to decide and on review his decision will not be disturbed unless manifestly erroneous. (People v. Wilson, 29 Ill.2d 82.) We hold that the trial court was clearly justified in holding the confession given to the Illinois authorities a voluntary confession. Lyons v. Oklahoma, 322 U.S. 596, 64 S.Ct. 1208, 88 L.Ed. 1481.
It is next argued that the manifest weight of the evidence supports defendant's affirmative defense that he was insane at the time of the crime. He argues that the evidence shows that he is a severely ill sociopath, who at the time of the murder was experiencing a psychotic episode. Five medical witnesses testified on this issue two for the defense and three for the prosecution.
Ben C. England, Jr., a clinical psychologist and chief psychologist at Rusk State Hospital, Rusk, Texas, testified for the defense. His duties at the State Hospital are primarily the evaluation and treatment of patients committed there for the purpose of treatment, release and transfer to other institutions. He stated that he had five or six interviews with the defendant and administered the Welchsler Bellevue Intelligence Scale test, a Bendergestalt test, a Rorschach Ink Blot test, a Minnesota Multaphasic Personality Inventory and a Zondie. He stated that defendant has an I.Q. of 109, but is an impulsive person. His test as to organic brain damage was negative and his test for organic injury or disease was also negative. He felt that defendant was capable of developing acute psychotic episodes, that he would probably get worse, and that he could probably make a reasonable institutional adjustment. In response to a hypothetical question containing the facts alleged by the prosecution, he testified that it was his opinion that when defendant committed the crime, he was suffering from an overt psychotic episode which he described as being of the ambulatory schizophrenic type; that he was not able to control himself; that he was not capable of distinguishing right from wrong, and that he was not capable of choosing to do or not to do the act.
Charles W. Folsom, a medical doctor specializing in psychiatry and a director of the maximum security unit of the State hospitals in Texas, also testified for the defense. Doctor Folsom stated that he hypnotized defendant with his consent and stated he discovered a great deal about the way he thinks. He said defendant has some systemic delusions and that his intellect is very good but he has almost no balance in being able to control a generous emotional nature. He also stated that he felt defendant would not be safe in society without supervision. In response to the hypothetical question, the doctor stated he was of the opinion that at the time of the crime defendant was suffering from a mental defect or disease, that he had no choice but to go through with his impulse because he did not have the necessary brake deterrents. He described this as a psychotic reaction. He was also of the opinion that the defendant at the time of the crime was not able to distinguish right from wrong, that he was obviously not capable of choosing to do or not to do the act, and that he was not capable of governing his conduct in a choice between right and wrong.
Walter Moore, a physician specializing in nervous and mental diseases, neurology and psychiatry, and a professor of neurology and psychiatry at St. Louis University school of medicine, testified for the prosecution. He examined defendant in January, 1964, and used a questioning procedure. He said he found no disturbance in the patient's conduct or attitude, that he found no hallucinations or delusions, and that he found no evidence of schizophrenic behavior. In response to a hypothetical question, he stated that he was of the opinion that defendant knew the difference between right and wrong and stated that there was no evidence that he was a victim of irresistible impulses. On cross-examination he admitted that he did not give any of the standard psychological tests and explained that he did not feel that they were necessary. He said that such tests are applied more in evaluating various assets in the personality structure for therapeutic purposes and not for diagnosis. He stated he does no testing for diagnosis. He felt that by studying the behavior of an individual he can reach a conclusion within a half hour whether the patient is psychotic or not and that he could do this regardless of whether he gets any background or whether the person co-operates in his responses.
James H. Kriemeyer, a doctor of medicine with some special training in psychiatry and Clinical Director at the Rush State Hospital in Texas, testified for the prosecution. He examined the defendant in March, 1962. He said that defendant showed evidence of sociopathic personality disorder but that he was not psychotic. In response to the hypothetical question, he said he was of the opinion that defendant knew the difference between right and wrong, that it was possible for him to choose to do or not to do an act and that it was possible for him to govern his conduct in accordance with such choice. On cross-examination he admitted that he did not give any psychological tests, but ...