Appeal from the Circuit Court of Cook County, Criminal
Division; the Hon. EDWARD E. PLUSDRAK, Judge, presiding.
MR. JUSTICE MURPHY DELIVERED THE OPINION OF THE COURT.
Defendant, Robert Harris, was found guilty of voluntary manslaughter by a jury and was sentenced to the penitentiary for a minimum of 19 and a maximum of 20 years. On appeal, his principal contention is that his confession should not have been admitted into evidence because it was involuntary, and he had been denied the assistance of counsel. A pretrial motion to suppress any written or oral confession was denied after hearing the testimony of witnesses.
Defendant's trial was held in December 1965. The evidence shows that on February 25, 1963, at about 8:30 p.m., Lloyd L. Daniels, a CTA bus driver, entered the apartment building at 222 South Hamlin, accompanied by his wife, his brother-in-law, Melvin Booker, and his sister, Mrs. Oberia Mason, who lived in the building. When they approached the top landing they saw defendant there with a woman (later identified as Lee Ethel Weathington) seemingly draped over his knee, her head resting on the steps. Mrs. Mason noted that the woman must be "awful sick," and defendant replied, "She is, and she has chills. I'm trying to get her to the hospital." Daniels noticed an open trunk on the next landing and called the police from Mrs. Mason's apartment, and then left the building. Shortly thereafter he returned to the building. The body was on the floor of the vestibule, and defendant was there with two police officers. On inquiry, Daniels told the police that defendant was the man he saw "with the body." The police noticed bloodstains on defendant's clothing. A bloodstained trunk was found on the third floor, and the keys of defendant fitted the lock on the trunk. Bloodstained newspapers were found in the defendant's apartment. Crime laboratory technicians discovered a piece of 1 1/2" pipe in the basement incinerator chute.
Defendant was taken into custody about 9:30 p.m. on February 25, 1963. A question and answer statement was taken by Assistant State's Attorney Bonaguro, with Court Reporter Flannery present, at about 5:00 a.m., February 26, 1963. At the trial the court reporter identified the written statement (People's exhibit 19) as an accurate transcript of his notes, which he transcribed on the morning of February 26. The defendant signed the statement around noon on February 26 in the State's Attorney's office. "Witnesses to signature" include Lester A. Bonaguro, John Loftus and Anton J. Bielski.
Defendant's statement, over objection, was admitted into evidence and read to the jury. The statement showed that defendant maintained an apartment on the fourth floor of 222 South Hamlin, and two or three nights a week the decedent would stay with him. She was married, and they planned on getting married when she obtained a divorce. On February 25, he arrived home at about 8:00 o'clock in the evening, and the decedent was in the apartment. They had a quarrel, and she called him a name, and "I just hit her before I know it." He hit her twice, and she fell to the floor. The pipe identified by him was 17 1/4" long and 1 1/2" in diameter. After she fell to the floor, he saw blood coming from her hair. He tried to get a blanket out of the trunk to wrap her in and stumbled over the trunk with the body. He started to walk down the stairs with the body to take her to a doctor, when he met Daniels and his companions. He threw the pipe into the incinerator. He telephoned her sister and the police and told them to come out because "the girl was hurt real bad or dead I guess."
A police department microanalyst testified that from tests it was determined that the bloodstains on the trunk, newspaper and defendant's clothing were human bloodstains. Human hair from the victim was the same as found in the trunk, and fatty tissue was found on the pipe. The coroner's pathologist testified that in his opinion "cranial cerebral injuries were the cause of Lee Ethel Weathington's death."
Defendant did not testify. In a hearing in mitigation and aggravation, it was disclosed that defendant was previously found guilty of voluntary manslaughter in 1955 and was sentenced to 14 years.
Initially, we consider defendant's contention that the trial court erred in failing to suppress his confession because (1) defendant's confession should have been suppressed because he had been denied "the assistance of counsel" in violation of the Sixth and Fourteenth Amendments to the Constitution of the United States; (2) defendant's confession should also have been suppressed as involuntary under established pre-Escobedo standards: (a) defendant was not advised of any of his rights, including his right to remain silent; (b) no counsel was present when defendant's statement was taken; (c) defendant was denied medical care for his fractured ankle; (d) defendant did not voluntarily sign the statement; (e) the treatment of defendant while in custody negates voluntariness; (f) the unreasonable delay in presentment negates voluntariness; (g) the State failed to sustain the burden of proving that defendant's confession was voluntary; and (3) the admission of defendant's involuntary confession and its subsequent use at the trial leading to his conviction deprived defendant of due process of law.
The hearing of the motion to suppress any "oral or written confession" was heard on July 27, 1965. Witnesses for the State consisted of six police officers and Bonaguro and Flannery. The testimony of four police officers Pelz, Steinmiller, Smith and Spellman covered the period from the time the police found the defendant with the body at 222 South Hamlin until he was turned over to Officers Miskulin and Barrett for interrogation. These four officers testified to questioning defendant about the body, during which defendant made no substantial admissions. He was not limping and made no request for medical care or for a lawyer.
Officer Michael Miskulin testified that he was assigned to Area 4, Homicide. He first saw the defendant in his apartment on the fourth floor at 222 South Hamlin on February 25, 1963, at about 9:30 p.m., and defendant asked Miskulin if he didn't remember him, and he had no further conversation with defendant in the apartment. He next saw defendant in Area 4 after 10:00 p.m. He interviewed defendant for about an hour. There was nothing unusual about defendant, and at no time did he tell of an injury to his ankle, and he did not ask for medical assistance or an attorney. "He did not mention an attorney at any time." He took defendant to a washroom, and on the way defendant stopped and talked to his sister. "He mentioned something about wanting to turn over car keys to his sister and he asked me if I would obtain those car keys from the officers whoever had them. I said that we would discuss that later, that we go to the washroom now and he left his sister and he went to the washroom and returned to the room." He was within hearing and eyesight of Harris for about three hours, either in the interviewing room or at the open doorway. Defendant did not ask to see anyone.
Officer Miskulin further testified that before the defendant was taken to the washroom, "I confronted him with the evidence that we had uncovered on this investigation. I told him that we had recovered the steel pipe out of the incinerator that he had used in this offense. I told him we had the trunk upstairs, a key from his pocket fit that same trunk, and I informed him we had everything there to link him with this homicide. He finally told me he wanted to tell me just what took place. He told me that Ethel Lee Weathington was his girl friend. . . . They were seated at the kitchen table. They were arguing, he took this pipe and struck her twice over the head with it." Defendant told this to the officer between 11:30 and 12:00 p.m. on February 25, 1963.
After midnight, Miskulin telephoned the State's Attorney's office. Assistant State's Attorney Bonaguro arrived about 3:00 a.m., and a question and answer statement was taken. Miskulin testified, "I didn't sit in on the statement" that was taken at 5:00 a.m. Assistant State's Attorney Bonaguro, Court Reporter Flannery and Detective Barrett did. The last time Miskulin saw defendant was on the morning of the 26th. Miskulin also testified that Officer Barrett was on leave and out of the city on the day of the hearing of the motion to suppress.
Officer Anton J. Bielski (in rebuttal) testified that on February 26, 1963, he was assigned to the Homicide Unit, Area 4. He saw defendant on February 26, 1963, shortly before noon in the office of the State's Attorney. Present were his partner, John Loftus, and Assistant State's Attorney Bonaguro. Defendant was given a copy of a statement that had been given by defendant earlier that morning. After the statement was read by Mr. Bonaguro, defendant signed it and Officers Bielski and Loftus and Bonaguro signed it as witnesses. Defendant did not decline to sign or read it. He did not ask to communicate with anyone, nor did he ask for an attorney or medical attention. Bielski noticed that defendant had a slight limp, but defendant made no complaint about it.
Lester Bonaguro testified that he was an Assistant State's Attorney on February 26, 1963, and he arrived at Area 4, Homicide about 4:45 a.m. and took a statement from defendant with Court Reporter Flannery present. Bonaguro asked questions, and defendant gave answers. He did not recall hearing defendant complain about an ...