WRIT OF ERROR to the Circuit Court of Cook County; the Hon.
ALEXANDER J. NAPOLI, Judge, presiding.
MR. JUSTICE UNDERWOOD DELIVERED THE OPINION OF THE COURT:
Rehearing denied May 27, 1968.
The defendant, Lee Arthur Hester, age 14, was found guilty of murder by a jury in the circuit court of Cook County and sentenced to a term of 55 years imprisonment. In this direct appeal the defendant claims 18 instances of reversible error occurred in these proceedings.
About 4:00 P.M., on April 20, 1961, the body of Josephine Keane, a teacher at the Lewis-Champlin Elementary School of Chicago, was discovered in the first floor bookroom of the school. Mrs. Keane had been stabbed repeatedly in the side and chest. Her body was found lying face up with her skirt pushed up over the hips. The crotch of her panties and girdle had been cut as well as the loops that held the garter supports attached to her girdle. The coroner found that spermatazoa were present in the victim's vagina, and the autopsy report fixed the cause of death as hemorrhaging due to multiple stab wounds with death occurring between 8:00 A.M. and noon that day.
On April 21, Detectives Sheldon Teller and Anton Prunkle were assigned to investigate the murder, and arrived at the school before daybreak to conduct a search of the premises. About 7:45 A.M. Hester's gym teacher, Miss Virginia Fritsch, talked with them stating that she had seen Hester alone in the hall on Thursday morning, and that she believed Mrs. Keane was handling a disciplinary case which involved him. Miss Fritsch directed the officers to Mrs. Rita Considine, a clerk in the principal's office, as a possible source of more information. Mrs. Considine informed the policemen that Mrs. Keane had mentioned that a parent had complained about the defendant wanting her son to commit an unnatural act. The detectives then proceeded to the third floor classroom where they met Jean Webster, Hester's fifth grade teacher.
At 8:00 A.M. the defendant arrived in his classroom and Miss Webster directed him to the officers who were waiting outside. The defendant was in the custody of Officers Teller and Prunkle from shortly after 8:00 A.M. until approximately 8:45 A.M. when they turned him over to Sergeant Frank Follis of the youth division. As they were interviewing the defendant outside of his third-floor classroom the detectives noticed what appeared to be bloodstains on Hester's pants and shirt. Detective Teller testified that when the defendant was asked how he acquired the stains on his clothing he gave several answers: that they were due to a fight with another boy; that he had had a nosebleed; that he had cut himself while chopping wood with an ax; and that he cut himself with a saw while sawing wood. Hester testified that as he was being interviewed outside of the classroom Officer Prunkle kicked him in the left shin. This charge was denied by Officers Teller and Prunkle, and their testimony was given support by three school teachers who were present during various portions of the conversation and never saw Hester struck. The defendant did not complain to anyone that morning about being kicked, including a doctor he saw when he was admitted to the Audy Home, a juvenile detention facility.
After questioning Hester on the third floor for approximately fifteen minutes, the detectives took him to the school auditorium where they could use the bright natural sunlight to examine more closely the stains and spots on his clothes. Hester admitted that he knew Mrs. Keane for three semesters or more, but he denied any involvement in the murder. The defendant was then taken to the principal's office and turned over to Sergeant Follis. Hester sat outside the office until 9:00 A.M. when Officers Harold Thomas and Robert Perkins picked him up and transported him by car to the Audy Home. Upon arrival there, the defendant's clothes were turned over to the officers for removal to the crime laboratory and Hester was provided with a robe to wear. The officers left the Audy Home and did not return there until 4:00 in the afternoon. Between 10:00 A.M. and 4:00 P.M. on April 21, Hester was kept in a room in the Audy Home infirmary which he described at his trial as a "dungeon room". The defendant did admit, however, that the room contained a bed with a blanket and clean sheets that he laid upon; he further stated that he was given lunch but claimed he did not eat it. The Audy Home superintendent testified the room was 7 feet 9 inches by 12 feet 8 inches with a 12-foot ceiling, and contained a hospital bed with a 6-inch innerspring mattress, a hospital table and stool, a light fixture, radiator, 28-by-52-inch transom, and 42-by-52-inch barred window.
About 4:00 P.M. Hester was provided with clothes and brought into an interview room at the Audy Home where he was questioned for approximately five minutes by Officers Thomas and Perkins, and Sergeants William Keating and John Killackey. The room where this interview took place was estimated by Officer Perkins to be 15 feet square with a barred window. Sergeant Killackey testified that the four officers began by introducing themselves to Hester, and that the defendant sat next to a wall flanked by Perkins and Thomas while Sergeant Keating sat behind a desk which he (Killackey) was sitting on. Officer Perkins testified that none of the policemen was closer to the defendant than 4 1/2 to 5 feet during this 5-minute period. When Hester denied complicity in the crime he was confronted with the results of the crime laboratory tests which he was told revealed human blood on his clothes, a hair from a Caucasian female and a lipstick smear on his coat, and certain filings from his pocket. The defendant alleges that in addition to this incriminating evidence he was told that his fingerprints were found on the icebox which was in the bookroom. He further claimed that Sergeant Killackey called him a liar when he denied responsibility for the murder and warned him "something was going to happen". The defendant testified that Killackey drew close to him, stuck a pen in his face and spit at him. The allegations of threatening, spitting and telling Hester about his fingerprints being found on the icebox were denied at the trial by all four of the officers who were in the room.
At the end of the 5-minute interview Sergeants Killackey and Keating, both of whom are Caucasian, left Hester in the room with the Negro officers Perkins and Thomas. According to the defendant, Officer Thomas told him that the two white officers were going to knock his head through the wall if he didn't admit the crime, but that Thomas assured him, "We ain't going to let them knock your head through the wall." Hester testified that he was then promised that if he admitted the murder his mother would bring him some clothes and he would be allowed to go home. The defendant's version of a police "Mutt and Jeff routine" (see Miranda v. Arizona, 384 U.S. 436, 452, 16 L.Ed.2d 694, 86 S.Ct. 1602, 1616) was denied by the officers who testified that Hester was only encouraged "to tell us about it and get it off his chest." Thomas and Perkins testified that after the defendant was given this advice he made an oral admission that an "accident" had occurred which resulted in his stabbing Mrs. Keane. They stated that Hester told them he tripped over some books at the entrance to the bookroom, that this caused a knife which was attached by rubber bands to his wrist to come into his hand, and that he stabbed Mrs. Keane as he fell; that he became scared and stabbed Mrs. Keane several more times, and then proceeded to sexually assault her. In describing his sexual assault, the officers testified that Hester said that he laid on top of her and "squirted", then bent over her to see if her heart was beating, and after he could not hear a heartbeat he locked the bookroom door with keys that he had found, dropped the keys "somewhere", and rejoined a classmate, Sherman Baker, with whom he then returned to Miss Webster's class. After defendant's oral confession to the officers, Perkins testified that he brought photographs of the murder scene into the room and Hester pointed out certain items in the picture which he had mentioned in his statement. The defendant's testimony on this point is directly contradictory to the explanation of the police officers. Hester testified that the photographs of the bookroom were shown to him before and not after he confessed the crime, that he concocted the confession after viewing the pictures of the murder scene, and that the police coached him in portraying the details of the crime.
At approximately 5:00 P.M. Hester was examined by medical personnel at the Audy Home. Following the examination he was taken to the office of the State's Attorney in the Family Court Building which adjoins the Audy Home; and about 6:30 P.M. in the presence of assistant State's Attorney Louis Garripo, a court reporter, and Sergeant Keating, Hester made a confession of the crime which was substantially identical to the statement he had given to Officers Perkins and Thomas. At 8:15 P.M. three typed copies of the confession were returned by the court reporter and Garripo read the statement aloud as Hester followed along by reading a copy with which he had been supplied. Hester testified that the statement was read too fast for him to follow, but the State's witnesses stated that the confession was read slowly with the defendant pointing out several mistakes in the transcript. The copy of the confession admitted into evidence does contain the defendant's initials on each page with his initials appearing at each correction, and his signature on the last page of the statement. The fact that the statement was read aloud to the defendant and initialed by him at several points supports the State's contention that Hester understood what he was signing.
We come now to the defendant's many and varied allegations of error. A primary contention to which defense counsel devoted the bulk of their oral argument is that Hester's constitutional rights were violated by the admission into evidence of a confession elicited by psychological coercion and threats of brutality from a 14-year-old boy of limited mentality who was kept incommunicado for over 12 hours before signing a written confession, who was not furnished legal counsel, who was not advised of his constitutional rights, and who, after repeated requests to see his mother was refused the right to see her or any other friend before and during his interrogations. In support of this proposition the defense cites United States Supreme Court cases beginning with Brown v. Mississippi, 297 U.S. 278, 80 L.Ed. 682, 56 S.Ct. 461, and culminating in Miranda v. Arizona, 384 U.S. 436, 16 L.Ed.2d 694, 86 S.Ct. 1602.
The constitutional test governing the admission of a confession by an accused is whether it has been made "freely, voluntarily and without compulsion or inducement of any sort," or whether the defendant's will was overborne at the time he confessed. (Culombe v. Connecticut, 367 U.S. 568, 6 L.Ed.2d 1037, 81 S.Ct. 1860; Reck v. Pate, 367 U.S. 433, 6 L.Ed.2d 948, 81 S.Ct. 1541; Haynes v. Washington, 373 U.S. 503, 513, 10 L.Ed.2d 513, 83 S.Ct. 1336, 1343.) Compulsion may also include torture of the mind when the will of the suspect succumbs to fear. (Watts v. Indiana, 338 U.S. 49, 52, 93 L.Ed. 1801, 69 S.Ct. 1347, 1349; People v. Price, 24 Ill.2d 46, 54.) "Determinative factors include not only illegal detention but its duration, the relentlessness of interrogation, disregard of the rudimentary necessities of life, the deprivation of counsel, deception respecting the accused's constitutional rights, the accused's age, education, emotional characteristics, and experience in criminal matters." (People v. Price, 24 Ill.2d 46, 57.) Since Hester's pre-Miranda trial commenced in September, 1961, the standard controlling admission of the defendant's confession is the totality of circumstances test and this requires us to now make an independent review of the factors bearing upon voluntariness of the confession. Haynes v. Washington, 373 U.S. 503, 513, 515, 10 L.Ed.2d 513, 83 S.Ct. 1336, 1343, 1344; Gallegos v. Colorado, 370 U.S. 49, 52, 8 L.Ed.2d 325, 82 S.Ct. 1209, 1212.
A careful review of the extensive record here has led us to the following conclusions: (a) Hester's assertions of physical abuse, threats of impending peril if he did not confess, inducements of leniency if he did confess and fabrications concerning the evidentiary findings of the crime laboratory were controverted by each and every police officer and agent of the State who had contact with the defendant in the 12 1/2-hour period between Hester's arrest and the signing of his written confession. Portions of defendant's testimony as to police brutality appear implausible on their face. In denying the motion to suppress the confession, after a full hearing, the trial judge said, "It is just inconceivable that Officer Prunkle would step up to him in the hallway there and kick him practically the moment when he first saw him * * *." We note further that the truthfulness of Hester's charge that he was thus kicked was impugned when he stated on cross-examination that he had been kicked in the left leg, but was then shown a newspaper photograph of himself pointing out his right leg as the one that had been kicked. When confronted with this picture the defendant responded "I forgot". In the absence of any evidence whatsoever to corroborate the defendant's somewhat contradictory and implausible testimony, the trial court was free to believe the wholly consistent testimony of the many State witnesses. (b) The defendant was not informed of his constitutional rights, nor was he provided with counsel or other friend to act on his behalf during the relatively brief periods of police interrogation. We have uniformly held, however, that in pre-Miranda cases the failure to advise a defendant of his constitutional rights, as well as the absence of an attorney and the unlawful detention of a suspect are only attendant circumstances to be considered in deciding whether a confession was made voluntarily. (People v. Musil, 37 Ill.2d 373, 377-8; People v. Lyons, 36 Ill.2d 336, 339; People v. Heise, 35 Ill.2d 214, 216; People v. Novak, 33 Ill.2d 343, 348; People v. Richardson, 32 Ill.2d 472, 475; People v. Hartgraves, 31 Ill.2d 375, 379; People v. Price, 24 Ill.2d 46, 56; People v. Jackson, 23 Ill.2d 274, 280.) (c) The defendant's allegation that he made several requests to see his mother which were refused was repeatedly denied by the police and agents of the State's Attorney's office with whom he had contact. We find it highly relevant in this regard that Officers Thomas and Perkins went to the home of defendant at approximately 2:45 P.M. on April 21, saw Hester's mother, and apparently told her that defendant was being held by the police, although testimony as to that conversation was largely excluded when objected to on separate occasions by both the State and defense counsel. Defendant's mother agreed the officers called at her home and further testified that she was notified at 2:30 P.M. by a classmate of Hester's that he was in police custody, but she did not attempt to locate her son until approximately 6:00 o'clock that evening; and while no reason appears in the record to explain why Mrs. Hester was unable to see defendant when she arrived at the Audy Home at 9:30 P.M., it is clear that she did see him there at 10:00 A.M. the following morning. (d) The defense places heavy reliance on the theory that the confession should not have been admitted into evidence because it was elicited from a 14-year-old boy of subnormal intelligence. Mentality and scholastic achievement-test scores of defendant were admitted into evidence indicating Hester's abilities between November 26, 1958, when he was 11 years, 7 months old, and January 20, 1959. In the November tests Hester's mental age was estimated at 8 years, 8 months, and his IQ was 75. Since defendant was in grade 3-A at the time he was being tested, his reading and arithmetic test scores should have registered at 3.5 to qualify as normal. On the California Achievement Test Hester scored a reading total of 2.0 and a math total of 3.5. The January, 1959, tests registered a mental age of 9 years, 9 months, with an IQ score of 82, which the psychologist testifying for the defense classified as an indication of "a slower than average rate of mental growth." At the time Mrs. Keane was murdered, the defendant was 14 years old; so that based on his lowest test scores and assuming his mental age and academic achievement in English skills continued to lag behind his chronological age at the same rate, defendant's mental age and abilities would have been at least equal to those of a normal 11-year-old child at the time he confessed to the crime. The general rule is that subnormal mentality does not ipso facto make a confession involuntary "so long as the subnormality has not deprived the person in question of the capacity to understand the meaning and effect of the confession. But mental subnormality is a factor to be considered in determining the issues of voluntariness and admissibility, and, where accompanied by other factors indicative of an absence of voluntariness, will require that the confession be excluded." (Annot., 69 A.L.R.2d 348, 350; see State v. Ordog, 45 N.J. 347, 212 A.2d 370, 377; People v. Lara, 62 Cal.Rptr. 586, 601.) In People v. Isby, 30 Cal.2d 879, 186 P.2d 405, the court held admissible a murder confession by a 26-year-old defendant who was near the imbecile classification possessing an IQ of 58 and a mental age of 8 years, 8 months. The court there noted that the defendant did not "dispute the fact that he knew `the difference between right and wrong', nor [did] he make any claim of insanity * * *. It was for the trial court to determine the competency of defendant in the light of his ability to `perceive, and, perceiving, * * * make known [his] perceptions to others' [citation] and his capacity for `receiving just impressions of the facts * * * or * * * relating them truly' [citation]; and its ruling in favor of defendant Isby's qualification appears from the record to be well within the limits of judicial discretion. [Citing cases.] The weight and effect to be given his statements by reason of his asserted mental deficiency was then properly left to the jury." 186 P.2d at 416.
In a more recent case the Supreme Court of California decided that the murder confession of a 17-year-old defendant with a mental age of 10 years, 2 months, and an IQ of 65 to 71 was properly admitted. (People v. Lara, 62 Cal.Rptr. 586.) The Lara decision concludes that "a minor, even of subnormal mentality, does not lack the capacity as a matter of law to make a voluntary confession without the presence or consent of counsel or other responsible adult * * * the issue is one of fact, to be decided on the `totality of the circumstances' of each case." (62 Cal.Rptr. at 603.) A similar holding appears in State v. Watson, 114 Vt. 543, 49 A.2d 174, where the admission into evidence of a confession of a 20-year-old defendant with a mental age between 8 and 9 years was upheld, the court reasoning that "the mere fact that a person is an infant and of low mentality does not render his confession inadmissible as being involuntary, providing he has the mental capacity to commit the crime with which he is charged. The reason for this rule being that if a child has such mental capacity as to render him amenable to the law for the commission of a crime he has sufficient mental capacity to make a confession of guilt." 49 A.2d at 178.
Similar determinations sustaining the admission into evidence of confessions of minors possessing subnormal intelligence appear in State v. Ordog, 45 N.J. 347, 212 A.2d 370, where one defendant charged with murder had a chronological age of 19 years but the intelligence of a 7-year-old and the judgment of a 6-year-old according to expert opinion, and another 17 1/2-year-old defendant possessed borderline intelligence, was diagnosed as a chronic undifferentiated schizophrenic, and committed to a State mental hospital after committing the murder but before he became a suspect. The admissibility of confessions by minors of subnormal mentality has also been upheld when elicited from a 15-year-old whose IQ was established to be between 61 and 80 (Bean v. State, 234 Md. 432, 199 A.2d 773); where a murder confession was given by a defendant with a chronological age of 15 years but who could not read or write and whose mental age was the equivalent of a 12-year-old (Michaud v. State, 161 Me. 517, 215 A.2d 87); where a 14-year-old Negro defendant with a mental age of 11 years and 4 months and an IQ of 79 confessed to the crime of rape (Johnson v. Commonwealth, 184 Va. 466, 35 S.E.2d 770); and where a defendant under the age of 16 confessed to a murder which he committed 2 days after his escape from a State hospital for the insane. (State v. Ortega, 77 N.M. 7; 419 P.2d 219.) In our own State we have held admissible the confession of a 19-year-old of below normal intelligence who was a confirmed narcotics addict (People v. Townsend, 11 Ill.2d 30, cert. den. 355 U.S. 850, 2 L.Ed.2d 60, 78 S.Ct. 76), and we have decided that the youthful age of 14, while an important factor bearing on voluntariness, does not alone render a defendant's murder confession inadmissible. (People v. Connolly, 33 Ill.2d 128.) We conclude from the above cases that Lee Arthur Hester's confession was not inadmissible merely because of his youth and below normal mental faculties, and, in the absence of a showing of a coercive atmosphere that would produce an involuntary confession from his defendant we find that Hester's confession was properly admitted.
In alleging that such a coercive atmosphere did in fact exist defendant relies on such United States Supreme Court cases as Haley v. Ohio, 332 U.S. 596, 92 L.Ed. 224, 68 S.Ct. 302; Gallegos v. Colorado, 370 U.S. 49, 8 L.Ed.2d 325, 82 S.Ct. 1209, and Reck v. Pate, 367 U.S. 433, 6 L.Ed.2d 948, 81 S.Ct. 1541, all of which held that confessions secured from minors through police interrogation were improperly admitted, but we do not believe that those decisions control the outcome of this case. Those factual situations contained certain common elements which amounted to "a totality of coercive circumstances" not here involved. (See Reck v. Pate, 367 U.S. 433, 443, 6 L.Ed.2d 948, 81 S.Ct. 1541, 1547.) In Haley the murder confession of a 15-year-old boy was obtained after 5 or 6 hours of police questioning in relays through the dead of night until approximately 5:00 A.M. when he confessed after being shown alleged statements of two confederates incriminating him. The defendant was then placed in jail and held incommunicado for over three days during which time a lawyer retained by his mother was twice refused access to him, and his mother was not allowed to see him until more than five days after his confession, although a newspaper photographer had been admitted to take defendant's picture immediately after he confessed. While it is true that the court in Haley notes that a lad of 15 cannot be judged by the more exacting standards of maturity and needs counsel and support if he is not to become the victim of fear and panic, we believe that the reference to the need of such a defendant for "someone on whom to lean lest the overpowering presence of the law, as he knows it, crush him" (332 U.S. at 600, 92 L.Ed. at 228, 68 S.Ct. at 304), must be read in the context of the brand of police interrogation there dealt with. And we find the ratio decidendi of Haley in the following passage: "The age of petitioner, the ...