APPEAL from the Circuit Court of Cook County; the Hon. WALTER
P. DAHL, Judge, presiding.
MR. JUSTICE KLUCZYNSKI DELIVERED THE OPINION OF THE COURT:
Rehearing denied September 27, 1967.
Defendant, Ernest Bonner, was found guilty by the court of attempted rape and sentenced to the penitentiary for a term of not less than one year nor more than ten years.
The record discloses that on February 20, 1965, at approximately 3:00 A.M., the complainant, Delpina Tricis, alighted from a bus at 85th and S. Halsted streets, Chicago, and proceeded toward her home a half block away through a pedestrian tunnel beneath some railroad tracks. While in the tunnel she turned and observed a man following her. As she emerged therefrom the man sprang upon her back knocking her to the ground at the foot of a street light. The assailant, while on her back, reached underneath her coat and skirt and pulled down her slip, covering her mouth with his hand. She bit his hand as he tore at her blouse and attempted to pull off her skirt. During this time she was screaming and struggling. She heard a shot and the assailant then fled with three men in pursuit. She had a purse with her, but it had not been touched. The defendant was apprehended and brought back to the scene where complainant identified him. Her legs were bruised and bleeding, her face swollen, and her torn slip was lying on the sidewalk. At the police station complainant removed a small piece of human flesh from her mouth and noticed that one of defendant's fingers was bleeding.
Earle Bozeman, while driving past 85th and Halsted streets, observed a woman, followed closely by a man whom he identified as the defendant, pass in front of his car. As he drove on he heard a scream, stopped his car, sounded the horn, and then ran to a police station a block and a half away to summon aid. Bozeman, accompanied by police officers, returned to the scene and saw defendant bending over the complainant lying on the ground. One of the officers shouted "stop, you are under arrest" and fired a shot at defendant as he fled. Bozeman and the officers pursued and apprehended the defendant a short distance away as he emerged from an alley.
Defendant, questioned by his counsel, stated that he understood the nature of the charges in the indictment but denied committing the offense. He testified he resided at 14640 Winchester in Harvey, Illinois; that he was in the vicinity at the time of the occurrence; that he heard a commotion and someone yell "Get him", heard a shot and then ran in fear and was apprehended. He explained the bleeding finger by saying he had been bitten by a dog.
He appeals this conviction directly to this court alleging a transgression of his constitutional rights, and advances four theories in support of his cause: (1) the trial court erred in denying his pretrial motion to dismiss the indictment based upon the fact that he requested and was denied counsel at the preliminary hearing; (2) the indictment does not charge an offense; (3) a fatal variance exists between the proof and the purported charge; and (4) the sentence is excessive.
At the time of the preliminary hearing on February 23, 1965, defendant requested a continuance for the purpose of engaging counsel. The court disregarded the request and proceeded with the examination to determine whether there was probable cause to submit the case to the grand jury. Prosecution witnesses were examined and the court held defendant to the grand jury. Defendant was not asked to plead, testify or make any further statements. He was subsequently indicted and represented by counsel of his own choosing at all stages thereafter.
Defendant was tried and convicted by the court on December 8, 1965.
To support his first contention here, defendant charges that the denial of counsel at the preliminary hearing violated his constitutional rights to assistance of counsel and to due process of law. We have previously considered the right to counsel at the preliminary hearing in People v. Morris, 30 Ill.2d 406, and on pages 410, 411, we said: "The real question in this case, as we see it, is the stage of a criminal proceeding at which the right to counsel exists and, in such regard, we are cognizant that such right is not confined to representation during the actual trial on the merits, but may extend to pretrial proceedings and occurrences. (See: Crooker v. California, 357 U.S. 433, 2 L.ed.2d 1448; Moore v. Michigan, 355 U.S. 155, 2 L.Ed.2d 167; Gallegos v. Nebraska, 342 U.S. 55, 96 L.Ed. 86.) And, under the cited decisions, generally speaking, it is held that due process is violated by the lack of counsel before trial whenever the pretrial circumstances are such that the accused is so prejudiced thereby as to infect his subsequent trial with an absence of fundamental fairness essential to the very concept of justice. Under more recent decisions, however, it would appear that a failure to provide an indigent person with counsel violates due process, without regard to ensuing prejudice, whenever the pretrial proceeding, by whatever name it is called, constitutes a `critical stage' of the criminal process. Specifically, we refer to White v. Maryland, 373 U.S. 59, 10 L.Ed.2d 193, and Hamilton v. Alabama, 368 U.S. 52, 7 L.Ed.2d 114. In White the unrepresented defendant entered a plea of guilty at the preliminary hearing which was subsequently introduced in evidence against him at his trial, (cf. People v. Jackson, 23 Ill.2d 263); while in Hamilton the accused had no counsel at arraignment, at which time, under Alabama procedure, certain defenses had to be raised or forever lost. Whether we measure by the old or new criterion, we find no denial of due process in this case.
"A preliminary hearing in Illinois is not a `critical stage' where rights or defenses must be raised or lost, and neither is it a proceeding at which pleas are made or received. Rather, the scope and purpose of preliminary proceedings are in general to ascertain whether a crime charged has been committed and, if so, whether there is probable cause to believe that it was committed by the accused. (14 I.L.P., Criminal Law, sec. 171.) Even then a finding of probable cause is not binding upon a subsequent grand jury. These things being so, we see no basis for saying that the right to counsel arises upon preliminary hearing, or that fundamental fairness requires it."
Defendant seeks to vitiate our holding in Morris or at least avoid its application to this appeal by advancing, what he asserts to be, "three overpowering distinctions" between that case and his own: namely, that Morris was decided prior to both the United States Supreme Court's decision in Escobedo v. Illinois, 378 U.S. 478, 12 L.Ed.2d 977 and the General Assembly's enactment of section 109-1 of the Code of Criminal Procedure (Ill. Rev. Stat. 1965, chap. 38, par. 109-1), and that in Morris there was no request for counsel. In light of these distinctions and other developments in the law relating to an accused's right to counsel, we think that a re-evaluation of our decision in Morris is merited here.
Defendant, in calling our attention to recent United States Supreme Court cases involving the right of an accused to assistance of counsel, specifically, Escobedo v. Illinois, argues that the court has now extended the right to counsel, in accordance with its earlier admonition in Powell v. Alabama, 287 U.S. 45, 77 L.Ed. 158, to "every step in the proceedings against [an accused]" and not only to those steps in the judicial process which may be characterized as "critical".
The resolution of this argument necessarily involves the determination of what constitutes a critical stage in the judicial process. Our decision in Morris turned on this determination which we made therein by an examination and analysis of pertinent United States Supreme Court decisions, including White and Hamilton. From those cases we, in common with other courts, extracted the principle that a stage in the proceedings against an accused is properly designated as "critical," irrespective of how it is labeled, when events transpire there which are likely to prejudice his subsequent trial. (DeToro v. Pepersack, (4th cir.) 332 F.2d 341; Butler v. Burke, (7th cir.) 360 F.2d 118.) While Escobedo extends the right to counsel to pretrial occurrences beyond those contemplated by the Supreme Court decisions underlying our ruling in Morris, we do not read that case as constituting a departure from the "critical stage" test enunciated in those earlier decisions or as announcing an extension of the right to counsel to every step in the proceedings against an accused. Rather, in Escobedo the Supreme Court, in view of the manifest likelihood of ensuing prejudice to the accused inherent in custodial interrogation expressly held that situation to be a "critical stage" requiring representation by counsel. (Escobedo, 378 U.S. at page 486.) Furthermore, the holding in Escobedo is apparently ...