APPEAL and WRIT OF ERROR to the Criminal Court of Cook County;
the Hon. JOHN GUTKNECHT, Judge, presiding.
MR. JUSTICE HOUSE DELIVERED THE OPINION OF THE COURT:
Rehearing denied October 27, 1966.
Marvin Williams was indicted along with Samuel Jones, Johnnie Walker, Robert House, David Sanders and Samuel Lacey in the criminal court of Cook County for the crime of rape. In a joint bench trial all of the defendants were found guilty and sentenced to the penitentiary. Williams, who was sentenced to the penitentiary for 15 years, filed a petition under the Post-Conviction Hearing Act. (Ill. Rev. Stat. 1965, chap. 38, pars. 122-1 et seq.) His appeal from a dismissal of this petition has been consolidated for review with his writ of error.
The complaining witness testified that about 10:00 o'clock P.M. on January 16, 1961, she was returning to her home from church and had gotten off a bus at Douglas and Kedzie. As she was walking along the street, some boys came up behind her and grabbed her around the neck. The boy who grabbed her said he had a knife in her back. She was taken to a basement where one of the boys took her purse and she was told to take off her clothes. She said that all six of the defendants then had sexual relations with her. On cross-examination she stated that four or five of the defendants had sexual relations with her at this time. Three of the boys then took her to a vacant building and had sexual relations with her.
Samuel Jones testified that he grabbed the prosecuting witness around the neck and took her to the basement with the intent of robbing her. Sanders, Lacey and Walker were with him at this time. He took $3 from her purse and gave Walker, Sanders and Lacey each $1. Those three left and Williams and House then arrived. Williams, House and Jones then took her to a vacant building. Jones said he asked to have sexual relations with her and she consented.
The other defendants all admitted that they were at the basement or the vacant building, but they all denied that they had sexual relations with the complaining witness, that they threatened her, that they heard or saw anyone threaten her, or that they saw any of the other defendants have sexual relations with her. A joint confession by Williams, Jones and House was introduced into evidence in which they admitted taking the woman to the empty building and each of them having sexual intercourse with her there. In this confession Jones accused Williams of threatening her with a nail file, but this was denied by Williams. Williams in turn accused House of threatening her with a knife, but this was also denied in the confession by House. At the trial Williams denied that he made that part of the confession in which he admitted having sexual relations with the complaining witness and that he had accused House of threatening her with the knife.
The points raised by the petition under the Post-Conviction Hearing Act and by the writ of error are the same. Petitioner's two basic arguments are that he was denied adequate assistance of counsel and that the appointment of a single public defender to represent six defendants at their joint trial was an "ineffective appointment."
Much of petitioner's argument centers around defense counsel's stipulation that the joint "confession" of Jones, House and Williams could be admitted in evidence. He now argues that he confessed because of threats and promises of leniency, that he was not represented by counsel or advised of his rights when he confessed and that defense counsel stipulated to the confession to exculpate other of the defendants. While he attacks the stipulation from various aspects, the basic complaint seems to be that his counsel should have demanded a preliminary hearing on admissibility.
The record shows that defense counsel stipulated that the confession could be admitted as to the defendants who made the various statements in the confession and further stipulated that no weight be given those statements until the maker had testified. The additional stipulation was obviously made because defense counsel knew the makers of the statements were going to deny making them. When Williams did in fact testify, he denied making any of the incriminating statements in the confession.
In People v. Gray, 33 Ill.2d 349, it was alleged that counsel's failure to move to suppress alleged oral confessions was tantamount to no representation at all. There, as here, defendant at the trial denied that he had made any confessions. We stated, at page 355, "We cannot say that where alleged confessions are denied as having ever been made, incompetency of counsel is indicated by the absence of a motion to suppress them. As a matter of trial tactics, counsel evidently relied upon his client's testimonial denial of ever having stated that he committed the crime. This is not unusual, as under the former practice where defendant denied making a confession it was unnecessary for the trial court to grant a hearing on a motion to suppress. People v. Hegovic, 348 Ill. 58; overruled in People v. Norfleet, 29 Ill.2d 287." The stipulation of defense counsel does not show inadequate assistance of counsel.
The question now is whether petitioner is entitled to a hearing on the voluntariness of the admissions he made in the joint statement. As we have pointed out, the petitioner at the time of his trial in March, 1961, denied all the incriminating admissions of the joint statement stipulated into the record. The first suggestion that he did make these admissions and that they were not made voluntarily came in his petition filed 4 years later on March 11, 1965, under the Post-Conviction Hearing Act.
In People v. Smith, 32 Ill.2d 88, 93, we stated, "A confession obtained by coercion is, of course, inadmissible, and it is the usual rule that where an issue is raised concerning the voluntary nature of a confession the court must make a determination of that issue. However, constitutional claims, like other claims, may be waived. The record clearly shows that defendant's counsel stipulated that the confessions might be admitted in evidence without objection. This agreement waived any claim that the confessions were improperly obtained. It is of no significance that the attorney was appointed by the court, for the same rules of procedure apply whether counsel is appointed or privately retained."
This pronouncement would be dispositive of this issue, but we feel it should be considered in light of recent Supreme Court decisions concerning waiver of a Federally guaranteed constitutional right. We recognize, of course, that we need not forego our procedural rules for preserving constitutional claims for review when such rules serve a legitimate State interest, (see Henry v. State of Mississippi, 379 U.S. 443, 452, 85 S.Ct. 564, 570, 13 L.Ed.2d 408, 415); nevertheless we have relaxed the waiver principle of a constitutional claim where fundamental fairness so required. See People v. Hamby, 32 Ill.2d 291.
In Fay v. Noia, 372 U.S. 391, 83 S.Ct. 822, 9 L.Ed.2d 837, the Supreme Court stated, "Although we hold that the jurisdiction of the federal courts on habeas corpus is not affected by procedural defaults incurred by the applicant during the state court proceedings, we recognize a limited discretion in the federal judge to deny relief to an applicant under certain circumstances." (372 U.S. 391, 438, 83 S.Ct. 822, 848, 9 L.Ed.2d 837, 868.) The court then announced the "deliberate by-passing" doctrine as follows: "We therefore hold that the federal habeas corpus judge may in his discretion deny relief to an applicant who has deliberately by-passed the orderly procedure of the state courts and in so doing has forfeited his state court remedies. But we wish to make very clear that this grant of discretion is not to be interpreted as a permission to introduce legal fictions into federal habeas corpus. The classic definition of waiver enunciated in Johnson v. Zerbst, 304 U.S. 458, 464, 82 L.Ed. 1461, 1466, 58 S.Ct. 1019, 146 A.L.R. 357 `an intentional relinquishment or abandonment of a known right or privilege' furnishes the controlling standard. If a habeas applicant, after consultation with competent counsel or otherwise, understandingly and knowingly forewent the privilege of seeking to vindicate his federal claims in the state courts, whether for strategic, tactical, or any other reasons that can fairly be described as the deliberate by-passing of state procedures, then it is open to the federal court on habeas to deny him all relief if the state courts refused to entertain his federal claims on the merits though of course only after the federal court has satisfied itself, by holding a hearing or by some other means, of the facts bearing upon the applicant's default. Cf. Price v. Johnston, 334 U.S. 266, 291, 92 L.Ed. 1356, 1372, 68 S.Ct. 1049. At all events we wish it clearly understood that the standard here put forth depends on the considered choice of the ...