APPEAL from the Appellate Court for the First District; heard
in that court on appeal from the Circuit Court of Cook County;
the Hon. CHARLES R. BARRETT, Judge, presiding.
MR. CHIEF JUSTICE SOLFISBURG DELIVERED THE OPINION OF THE COURT:
The defendant, Jose Luna, was indicted in the circuit court of Cook County for the sale of narcotics, tried by a jury, found guilty, and sentenced to the penitentiary for a term of 15 to 30 years. The Appellate Court, First District, affirmed his conviction, (69 Ill. App.2d 291,) and we have granted leave to appeal.
The crucial issues in this case revolve upon the use of defendant's prior testimony on a motion to suppress for the purpose of impeachment at the trial. It appears from the record that the defendant was introduced to Paul Hemphill, an Illinois narcotics inspector, by defendant's friend, an informer named Galloway. The State's evidence indicates that Hemphill gave defendant $1,000 and that defendant took the money and later gave Hemphill a package of heroin. The exact testimony relating to the entire transaction is unnecessary for a consideration of the legal issues involved in this appeal.
Prior to the trial defendant moved to suppress a confession given by him, and Judge Landesman sustained the motion to suppress. Thereafter the case was assigned to another judge for trial. Defendant testified in his own behalf and on cross-examination the State was permitted to interrogate defendant over objection as to prior inconsistent statements that he had made at the hearing on the motion to suppress.
After judgment defendant moved for a transcript of the hearing on the motion to suppress and also sought to make the confession a part of the record. Both motions were denied by the trial court.
On this appeal defendant argues that, as an indigent, he was denied equal protection of the laws by being denied a free transcript of the hearing on the motion to suppress for the purposes of this appeal. Pursuant to our request on oral argument the State has filed a complete transcript of the preliminary hearing and we have considered this transcript as part of the record.
At his trial Luna testified that Galloway often asked if he knew anyone that sold narcotics, and on September 7, 1962, Galloway introduced him to his partner, Hemphill. He further testified that Hemphill and Galloway said they wanted to do business and Luna arranged a meeting with one Esparza; that the merchandise discussed was drugs. Esparza previously called Luna and said he had drugs to sell. The defendant stated that he did not know how much it would cost. Defendant's further testimony was that, on September 8, 1962, Hemphill gave Luna a bundle of money to give to one Alvarado. Luna did not count the money. In return for the money, Alvarado gave Luna $100 and a brown package. The defendant delivered both to Hemphill but was told by Hemphill to keep the $100. Luna stated that he did not know anything about the sale of drugs prior to this transaction.
On cross-examination, Luna said that he did not know how much money was given to him by Hemphill and he did not remember testifying on July 1, 1963, at the hearing on the motion to suppress the confession that he was given $1,000 and that he counted it. He also testified that he did not remember previously testifying that Hemphill gave him $1,000 to buy an ounce of heroin. Luna further stated that he did not recall previously testifying that he kept $100 in his pocket when he returned with the package to Hemphill.
In rebuttal by the State, it was stipulated that if the court reporter were called, he would testify that on July 1, 1963, the defendant testified: (1) that he was given $1,000 and counted the money; (2) he knew the $1,000 was to purchase one ounce of heroin; (3) when he returned to Hemphill, Luna put $100 in his pocket.
It is clear that a defendant who takes the stand may ordinarily be impeached by proof of prior inconsistent statements. (People v. Bush, 29 Ill.2d 367; People v. Morgan, 28 Ill.2d 55.) However, we have held that as a general rule it would be improper to attempt to impeach a defendant by use of an unlawfully obtained confession. People v. Adams, 1 Ill.2d 446; People v. Maggio, 324 Ill. 516; People v. Sweeney, 304 Ill. 502.
The precise issue presented by this appeal is whether it is proper to impeach a defendant by use of his prior testimony in support of his motion to suppress when that testimony is substantially the same as the confession. We have found no case directly in point, and analogous cases would seem to lead to different results. Defendant relies on Safarik v. United States, (8th cir.) 62 F.2d 892, where the prosecution attempted to introduce in evidence statements made by defendant in support of a motion to suppress illegally seized evidence. The court said:
"It being established that the constitutional guaranties of the defendants had been invaded by this first search and seizure, they were, of course, warranted in asserting their constitutional rights by such means as would be effective. For the purpose of securing the rights guaranteed them by the Constitution, they presented this motion with the supporting affidavits. It is, however, argued that, under the well-established rules of evidence, the statements contained in the motion and affidavits were admissions against interest and hence admissible in evidence. Conceding, as we must, that the showing made by the defendants was essential to securing to them the protection of the Constitution, then a rule of evidence, and not the Constitution of the United States, would be the supreme law of the land. To so hold would render the constitutional guaranties sonorous but impotent phrases. If this were the law, searches and seizures of the most drastic and unreasonable character, even invading the privacy of the home, might be perpetrated in flagrant violation of the constitutional guaranties, and even though the property so seized were, on proper motion, returned to the owner and its use as evidence suppressed, yet the same results could be secured by introducing, as in the instant case, the motion papers containing the admissions with reference thereto, thereby effectually invading the privacy of the individual guaranteed by the Constitution. But, as said by the Supreme Court in Gouled v. United States, supra, `A rule of practice must not be allowed for any technical reason to prevail over a constitutional right.'
"If, in a case where the search and seizure has been adjudged to be unreasonable and violative of the Fourth Amendment to the Constitution, the motion to suppress with the supporting affidavits, can be used by the government for the purpose of proving the guilt of the defendant, then, in order to avail himself of the guaranty afforded by the Fourth Amendment, he must waive the constitutional guaranty afforded him by the Fifth Amendment. If the government's contention be sustained, then the moment the defendants in this case made affidavits essential to the assertion of their rights under the Fourth Amendment, they became witnesses against themselves. To so hold would, for practical purposes, render unavailing the guaranties of both the Fourth and Fifth Amendments."
The State seeks to distinguish Safarik on the ground that the prosecution there sought to introduce the statements made by defendant as admissions against interest rather than as impeachment, and relies on Heller v. United States, (7th cir.) 57 F.2d 627; United States v. Curry (2d cir.) 358 F.2d 904; and Walder v. United States, 347 U.S. 62, ...