WRIT OF ERROR to the Circuit Court of Kendall County; the Hon.
CASSIUS POUST, Judge, presiding.
MR. JUSTICE WARD DELIVERED THE OPINION OF THE COURT:
The defendant, Vladamire Georgev, indicted for burglary in Kendall County, was found guilty by a jury on March 25, 1963. He received a sentence of not less than 4 years nor more than 10 years.
He seeks to review a denial by the circuit court of Kendall County of his petition under the Post-Conviction Hearing Act, which petition alleged that his trial did not accord him due process of law. He urges reversal of the circuit court asserting that in the trial proceedings his constitutional rights were violated, in that: (1) counsel incompetently represented him; (2) evidence which was the product of an illegal search and seizure was introduced against him; (3) oral confessions were admitted without his having been furnished a list of witnesses present at the time such confessions were made; (4) the jury was allowed to mingle with prosecution witnesses and spectators; (5) an unreasonable delay occurred in providing the defendant with a preliminary hearing before a magistrate; and (6) incriminating statements and confessions were elicited while defendant was in custody without his having been advised of his constitutional rights to remain silent and of his right to counsel.
The record discloses that on Sunday, January 27, 1963, a North Aurora police officer at about 2:00 A.M. observed a white 1958 Ford proceeding north on Route 31 through the village without a red tail-light lens and without a license-plate light. The officer proceeded to stop the car. Two men alighted from the passenger side of the Ford and approached the police car. The officer could not determine which of the two men had been driving. First, Cantu, defendant's 18-year-old companion, said he had been the driver and then the defendant, 27 years of age, stated he had been driving. The officer walked to the Ford and observed several rolls of coins on the floor of the car and an adding machine on the back seat which was partially covered by a coat. The officer earlier had radioed the license number of the vehicle to the State Police at Elgin and, according to the record which does not tell clearly, apparently had ascertained that the license plates on the auto had not been issued to it but had been issued to another vehicle, or the officer had ascertained that the registered owner of the auto was a person other than the defendant or Cantu. The officer testified that the auto "was running with fictitious plates."
The officer then called the Elgin State Police post for assistance. Cantu and the defendant were directed to follow the police car in their auto to the North Aurora Police Station. There, assisted by a State trooper who had arrived, the North Aurora police officer searched the interior of the car. In the course of this search $300 was found in a paper bag beneath the dashboard; $250 was found under the front seat and on the floor in wrappers or rolls, and another $100 was found in a coat partially covering the adding machine in the back seat; a tire iron; a metal letter opener; several cartons of cigarettes; a quart of beer; and a pair of pliers were also found in the search. The State introduced into evidence only the adding machine and the tire iron.
Later, on the morning of January 27, 1963, Cantu, after questioning, gave the police a statement confessing the burglary of which Cantu and the defendant were convicted. It was not disputed that the money and other items found in the car had been taken in the burglary, though, as stated, only the adding machine and the tire iron used in the burglary were offered and received in evidence.
The defendant asserts that the record discloses numerous trial errors which establish his counsel's incompetency: inter alia, his counsel's failure to make an opening statement, failure to tender any instructions to the jury, particularly his failure to tender or request a cautionary instruction regarding the testimony of an accomplice, his not moving to suppress evidence, and counsel's not demanding of the State the names of witnesses to statements which the defendant asserts were oral confessions.
What is necessary to establish inadequacy of representation by counsel so as to require a new trial, where the attorney has been appointed by the court, has been described by this court in People v. Morris, 3 Ill.2d 437, at 449. "[B]ased both on precedent and reason, we believe that in order to sustain his position here the defendant must clearly establish: (1) actual incompetence of counsel, as reflected by the manner of carrying out his duties as a trial attorney; and (2) substantial prejudice resulting therefrom, without which the outcome would probably have been different." We said, too, in People v. Cox, 22 Ill.2d 534, at 537, 538: "The defendant next contends that appointed counsel was incompetent. This contention is based on decisions recognizing that the incompetence of counsel may be such as to deny a defendant the fair trial that is contemplated by provisions of the State and Federal constitutions. The question of whether a defendant was adequately represented by competent counsel must be answered solely from the circumstances of each particular case (People v. Francis, 356 Ill. 74); and in order to sustain his position the defendant must clearly establish actual incompetency of counsel and substantial prejudice resulting therefrom, without which the outcome would probably have been different. People v. Morris, 3 Ill.2d 437."
The complaint that the attorney at trial failed to make an opening statement is without merit. Making or waiving an opening statement in behalf of a defendant is a question of judgment in strategy and if a defense attorney chooses to forego making an opening statement it certainly cannot be said to reflect want of professional competence.
Excepting a case in which the court's instructions to the jury are deemed by counsel to be complete and fair, the attorney for an accused in a typical defense should suggest instructions to the court for its approval and the instruction of the jury. In a case involving accomplice testimony, as here, defense counsel is entitled to a cautionary instruction concerning such testimony. Trial counsel here did not offer any suggested instructions. This was a professional omission which under circumstances other than here could be considered such a defect as to have deprived an accused of a fair trial and due process. However, considering the evidence and the instructions which were given by the court, including an instruction that the credibility of witnesses was a question for the jury to assess, we do not deem that the omission by counsel was controlling so far as the verdict was concerned.
We consider hereafter the complained-of failure to move to suppress and the failure to seek the names of witnesses to assertedly oral confessions.
Viewing the allegations of error by trial counsel and the entire record it cannot be said that the conduct of the trial resulted in such prejudice to defendant as to require a new trial.
Here, the evidence of the defendant's guilt was convincing. Making admissions against interest, the defendant had said "that he was going to prison just one of those things he was broke and needed the money and he got caught at it;" and "the stuff was found in my possession what more do you want?" Also, certain statements made by the defendant were self-contradictory. He had admitted he was driving the auto at the time it was halted by the police officer. Yet he testified he had been drinking, had fallen asleep and knew nothing of the events just preceding his arrest. Cantu, the 18-year-old, who with the defendant was indicted for the burglary, testified that he and the defendant had committed the burglary. Cantu was of course an accomplice but his testimony was corroborated by the defendant's admissions and supported by evidence found in the car in which the defendant was riding or driving.
The evidence is strongly persuasive of the guilt of the defendant. It cannot be plausibly held that absent any demonstrated deficiency on the part of the trial counsel the outcome of the defendant's trial "would probably ...