APPEAL from the Appellate Court for the First District; heard
in that court on appeal from the Circuit Court of Cook County;
the Hon. NATHAN M. COHEN, Judge, presiding.
MR. JUSTICE UNDERWOOD DELIVERED THE OPINION OF THE COURT:
The defendant, C.B. Caldwell, was found guilty of murder in a jury trial in the circuit court of Cook County and sentenced to a term of 50 to 100 years imprisonment. The appellate court affirmed (79 Ill. App.2d 273), and we granted leave to appeal primarily to consider defendant's contention that it was reversible error to allow the jury to take a copy of his written confession with them into the jury room.
The defendant and Mrs. Bessie Mae Woods were lifelong acquaintances and neighbors in a Chicago apartment house where defendant lived in a room adjoining the Woods's apartment. On the afternoon of April 24, 1964, the defendant and Mrs. Woods began arguing in the kitchen of her apartment. Mrs. Woods's uncle, William O'Neal, an elderly man who walked with a cane, was in the living room and went to the kitchen when he heard a scuffle. According to O'Neal's testimony Mrs. Woods repeatedly told the defendant that "she didn't have no two dollars" and when O'Neal reached the entrance to the kitchen he saw defendant holding Mrs. Woods by the collar at which time he told the defendant to stop it or get out of the house. The defendant left but returned within a minute or two with a revolver, pushed O'Neal aside, and headed for Mrs. Woods in the kitchen. The uncle testified that his niece and the defendant went out the back door and he heard a gunshot within about a minute. When O'Neal arrived at the scene of the shooting he found his niece lying on the ground and the defendant gone. The chief pathologist for the Cook County coroner testified that Mrs. Woods died from a bullet in the brain.
About 5:00 P.M. on the day of the shooting Officer Ray Gilhooly, a plain clothes detective assigned to the homicide division of the Chicago Police Department, was sitting in his car parked in front of the Woods's apartment, and observed a man approaching the house. This man glanced toward the parked car, stopped and then resumed walking. The officer heard a young boy call out "Hey, Sonny Boy" which Gilhooly knew to be the defendant's nickname. The officer got out of his car and started to cross the street identifying himself as a policeman, at which point Caldwell stopped and put his hands in the air. The defendant was searched and a .22 caliber revolver with two expended bullet casings was taken from him. According to the officer when asked to relate his side of the story the defendant stated that he had gotten into an argument with the deceased over another boyfriend, and her uncle got involved and hit him with a stick. When the defendant returned with his gun he pushed O'Neal to one side of the living room, and upon hearing a remark from Mrs. Woods who was in the kitchen, defendant told the officer that he hollered, "You started this whole thing." Gilhooly further testified that the defendant stated that he chased after Mrs. Woods when she started out of the kitchen door to the rear yard, grabbed her by the collar at the bottom of the steps, and when she started to struggle "let her have it." The officer stated that defendant later made a formal statement at the police station which was substantially the same as that given in the squad car, although he admitted on redirect examination that Caldwell never used the exact phrase "that is when I let her have it."
The defendant was taken to the police station about 5:45 P.M. and handcuffed to a radiator while Gilhooly went to the hospital hoping to speak to Mrs. Woods, but she was then unconscious and apparently remained so until her death three weeks later. The officer returned to the station about 1 1/2 hours later and at 8:00 o'clock typed out a statement which Caldwell made in response to the officer's questions and then signed. The following portion of that written confession relates to his intent when he fired the gun: "And I said to her you're the one who started the whole thing. Then about that time, she started to snatch loose from me and I went to fire; and she turned her head and I fired at the same time. And then she fell to the ground. Then I went out in front where some boys were shootin [sic] pennies and I told one of them I just shot Bessie. Go back and see how she is. I think she's dead. And then I left."
When the defendant appeared as a witness on his own behalf at the trial he claimed that the shooting actually had been an accident. He testified that he was not arguing with Mrs. Woods but that O'Neal entered the kitchen, hit the defendant with a cane which he held in his left hand and held a knife at the defendant's throat with his right hand saying, "[H]e ain't got no business in here." Defendant claimed that he left the apartment and returned to confront O'Neal with his revolver. At this juncture the defendant asserted that the deceased ran out the back door screaming and he followed her into the yard asking why she was running. He further testified that Mrs. Woods told him that she was afraid of guns and as they were walking back to the house she grabbed his hands, the gun fired and she fell. The defendant stated that he neither aimed the gun nor intended to shoot the deceased. Apparently the jury disbelieved the defendant's version of the killing and a comment of the trial judge immediately before imposing sentence informs us of one possible reason to justify that disbelief: "He [Caldwell] didn't quarrel with that old man. [O'Neal] The story about the old man was utter nonsense. The old man could barely stand to get on the witness stand. He [Caldwell] was so compassionate about Bessie that he didn't even bother to see whether she was dead or alive."
The conditions under which the defendant's written confession was elicited were thoroughly aired at the trial. While Caldwell admitted signing the confession he claimed that he never read it because "there was no light or nothing" in the room where he was sitting. Officer Gilhooly was recalled by the State and testified that the room in which the defendant was provided with copies of the confession to sign was well lighted with fluorescent lights hanging from the ceiling. The defendant was then called in surrebuttal and testified that he could not read. It was within the province of the jury to determine the weight to be given to the confession in view of Caldwell's late assertion of illiteracy, but we note that the 34-year-old defendant testified on direct examination that he had gone as far as the fifth grade in school and his written confession includes his affirmative answer to the question of whether he could read and write English.
The defendant asks that we remand this case for the limited purpose of having the trial court conduct a hearing to determine whether his written confession was involuntary and therefore improperly admitted. The defendant relies on our prior holdings that an objection during a criminal trial that no proper foundation has been laid for the admission of a defendant's statement is sufficient to require the trial judge to suspend the jury proceedings and conduct a hearing on the voluntariness of a confession offered by the prosecution for admission. (People v. Thigpen, 33 Ill.2d 595; People v. Taylor, 33 Ill.2d 417; People v. Jackson, 31 Ill.2d 408.) We think, however, that the defendant's reliance on these cases is misplaced because of the time and manner in which he raised the objection in the trial court and because of his failure to raise this contention in the appellate court.
The rule adopted in Jackson v. Denno, 378 U.S. 368, 12 L.Ed.2d 908, 84 S.Ct. 1774, which requires that an initial judicial determination of the voluntariness of a defendant's confession be made outside the presence of the jury when objection is made to its admission, has long been the law in this State. (See People v. Fox, 319 Ill. 606, 616-19.) We have said that "a confession may be challenged either by preliminary hearing on a motion to suppress (People v. Spencer, 27 Ill.2d 320) or by appropriate objection thereto at the trial (People v. Wagoner, 8 Ill.2d 188), and failure to pursue one of these devices ordinarily precludes consideration of the matter on appeal (People v. Williams, 26 Ill.2d 190, 192; People v. Jones, 31 Ill.2d 42, 50) * * *." (People v. Taylor, 33 Ill.2d 417, 421.) When a defense objection to a confession is made in apt time our procedure provides an appropriate avenue by which knowledge of the existence of a confession can be kept from the jury until its voluntariness has been determined. The United States Supreme Court has pointed out the inherent dangers in permitting a jury to know that a confession was made even though it is eventually determined to be involuntary: "In those cases where without the confession the evidence is insufficient, the defendant should not be convicted if the jury believes the confession but finds it to be involuntary. The jury, however, may find it difficult to understand the policy forbidding reliance upon a coerced, but true, confession, a policy which has divided this Court in the past, see Stein v. New York, supra, and an issue which may be reargued in the jury room. That a trustworthy confession must also be voluntary if it is to be used at all, generates natural and potent pressure to find it voluntary. Otherwise the guilty defendant goes free. Objective consideration of the conflicting evidence concerning the circumstances of the confession becomes difficult and the implicit findings become suspect." (Jackson v. Denno, 378 U.S. at 382, 12 L.Ed.2d at 918, 84 S.Ct. at 1783.) Keeping in mind the fact that a primary purpose of our procedure is to eliminate an involuntary confession from jury consideration at the earliest possible point in the case, we turn to the testimony of Detective Gilhooly which immediately follows his description of Caldwell's oral squadcar confession, and we note that the following testimony was allowed to be elicited by the State, without objection, regarding the defendant's written confession:
"A. [Gilhooly] [A]long with Anton Bielski, C.B. Caldwell, and myself, we returned to area four, homicide office, where C.B. Caldwell gave us a statement substantially the same as he gave before verbally.
Q. This statement you are describing now, was that reduced to writing?