APPEAL from the Circuit Court of Cook County; the Hon. HERBERT
R. FRIEDLUND, Judge, presiding.
MR. CHIEF JUSTICE SOLFISBURG DELIVERED THE OPINION OF THE COURT:
John Holmes, Jr. and Andrew Harper were jointly indicted for the murder of Jake Allen. They were tried by a jury, found guilty, and sentenced to death. Subsequent petitions for a post-conviction hearing were stricken. Defendants prosecute this consolidated appeal from the judgments of the circuit court of Cook County.
The deceased Jake Allen's body was found in an alley in Chicago on the morning of January 10, 1963. It appears that he had been killed by a bullet fired from a .22 caliber revolver. The two defendants were arrested that afternoon at about 2:45 P.M. and searched. The search revealed that Holmes had a loaded .22 caliber revolver, additional shells, and a watch and automobile keys belonging to Jake Allen. Defendant Harper had a revolver and the deceased's wallet.
They were taken to the police station and at 4:00 P.M. orally admitted their involvement in the murder. At about 8:00 P.M. that night defendants confessed to the murder to an assistant State's Attorney and a court reporter. The following morning the defendants signed the transcribed confessions and voluntarily testified before a coroner's inquest essentially repeating their prior confessions.
Their statements were to the effect that they asked the deceased for a ride shortly after midnight. At a stop sign the defendants pulled guns and took a watch and wallet from the victim. After the victim attempted to conceal some money he was ordered out of the car where he was shot. The confessions and the testimony at the inquest were admitted into evidence, after a hearing on defendants' motion to suppress.
On this appeal defendants contend that the motion to suppress was improperly denied; that the jury was improperly instructed; that the defendants were not advised of their constitutional right to counsel; that they were incompetently represented; and that their post-conviction petitions were improperly dismissed.
It appears from the hearing on the motion to suppress that defendants were interrogated after their arrest by police officers Mason, Walker, Lenz, Anderson and Denson. Defendants testified that they were brutally beaten and forced to confess in order to avoid further brutality. They further testified that they reported the brutality to a doctor at the county jail and to a parole officer named Bright.
Officers Mason, Walker and Lenz testified denying all claims of brutality. The assistant State's Attorney and court reporter also testified that defendants were advised of their right to remain silent and they made no claim of brutality, but voluntarily gave their statements. The State did not call officer Anderson but his absence was explained as caused by serious illness. At the close of the first day's proceedings the State announced that they would present the testimony of officer Denson the following morning, whereupon the trial court announced that he had heard enough and denied the motion to suppress.
From the evidence it is apparent that the defendants were handcuffed to a chair and a radiator while being held for interrogation; that defendant Holmes was spitting blood prior to his confession and that defendants were not brought before a magistrate or court until their arraignment twenty-one days after their arrest. The testifying police officers maintained that Holmes advised them that the blood he expectorated was from an ulcer.
It is well established in Illinois that when the voluntary nature of a confession is brought into question by a motion to suppress, it is the duty of the State to produce all material witnesses connected with the taking of the statements or explain their absence. People v. Wright, 24 Ill.2d 88; People v. Dale, 20 Ill.2d 532; People v. Sloss, 412 Ill. 61; cf. People v. Banks, 26 Ill.2d 259.
Under this rule the failure of the State to produce officer Denson, who was admittedly an available material witness and was claimed to have been involved in coercive brutality, would require a suppression of the confessions. However the State points out that section 114-11(d) of the Code of Criminal Procedure, (Ill. Rev. Stat. 1963, chap. 38, par. 114-11(d)) provides that objection to the failure of the State to call all material witnesses on the issue of voluntariness of the confession must be made in the trial court. While no objection was made to the failure to call officer Denson, we are reluctant to say that the point was waived under the peculiar circumstances of this case. Here the State advised the court that it was prepared to call officer Denson the following morning, but the trial judge stated he had heard enough and denied the motion to suppress. In the face of this ruling it is understandable that counsel for the defense felt it useless to object to the failure to call further witnesses.
No medical evidence as to the cause of Holmes's bleeding was adduced, nor were the medical records of the county jail produced, although defendants testified that they complained of physical harm to a doctor in the county jail. In People v. Thomlison, 400 Ill. 555, 561, the court stated: "Since the burden of proving by a preponderance of the evidence that confession is voluntary is on the State, the appearance of the defendant in the condition he was in requires clear and convincing proof that this condition was not produced by the actions of the police officers, and that it had nothing whatever to do with a confession made later on."
It must also be noted that defendants were not brought before a judicial officer until twenty-one days after their arrest despite our statute requiring prompt presentment before a judicial officer. (Ill. Rev. Stat. 1965, chap. 38, par. 109-1.) We have not followed the Federal rule established in Mc Nabb v. United States, 318 U.S. 332, 87 L.Ed. 819 and Mallory v. United States, 354 U.S. 449, 1 L.Ed.2d 1479, that unnecessary delay in presentment before a magistrate per se renders a confession inadmissible. We have repeatedly stated that the McNabb-Mallory rule does not rest on constitutional principles and does not of necessity apply to State criminal prosecutions. People v. Novak, 33 Ill.2d 343, 348; People v. Kees, 32 Ill.2d 299; People v. Melquist, 26 Ill.2d 22.
However we have recognized that unreasonable delay in presentment should be considered on the question of voluntariness of the confessions. People v. Taylor, 33 Ill.2d ...