Appeal from the Circuit Court of Cook County, Criminal
Division; the Hon. F. EMMETT MORRISSEY, Judge, presiding.
MR. JUSTICE ADESKO DELIVERED THE OPINION OF THE COURT.
Rehearing denied July 26, 1968.
Defendant was indicted for the unlawful possession of a narcotic drug. He waived his right to trial by jury, was found guilty in a bench trial and sentenced to the Illinois State Penitentiary for a term of not less than two, nor more than four years. Defendant now prosecutes this appeal raising five issues:
1. The denial by the trial court of his two motions to suppress the admission into evidence of a bag containing nine packets of heroin deprived him of his State and Federal constitutional rights against unreasonable search and seizure and arrest;
2. The failure of the trial court to advise him when he took the stand in his own defense that any admission he might make could be used against him deprived him of his State and Federal constitutional rights;
3. Taking the stand in his own defense at the request of his attorney did not waive his constitutional rights not to testify against himself;
4. The failure of his court appointed counsel to advise him of his right not to testify against himself was a violation of his constitutional rights to be competently represented by counsel; and
5. His testimony on the stand that the heroin was in his possession was insufficient either standing alone or in conjunction with other legal evidence to sustain the conviction.
Prior to, and at the trial, defendant moved to suppress nine tinfoil packages of heroin which were seized at the time he was arrested. At the hearing on his motion, the two arresting police officers testified that a reliable informer met them at about one o'clock in the morning on February 27, 1964, and informed them that a man named "Hymie" was selling narcotics at the New Orleans Hotel. The informer requested the officers to meet him at 1:30 a.m., and he would tell them the room number. The police officers met the informer at the appointed time and he gave them the room number as 21-1. This informer had been used five times in the past and his information had led to three convictions, the other two cases still pending.
The officers went to the hotel and walked into the lobby. The hotel clerk, by pushing a buzzer, let them into the common hallway whereupon the officers went to the second floor. The door leading to the common corridor on the second floor was locked and the hotel clerk, by use of a key, opened the door permitting them to enter the second floor. The officers went to room 21-1 and looked through a half-inch crack in the door. In the room they saw a man with his sleeve rolled up and a hypodermic needle in his hand. The officers pushed the door open. The defendant, James Hyman, was standing near the bed. One of the officers saw Hyman throw a bag behind the bed. Upon being retrieved, it contained the nine tinfoil packages. The defendant was then placed under arrest.
At the trial, the officers again testified to substantially the same facts that they testified to on the motion to suppress. In addition, they testified that the nine packages were delivered to the crime laboratory for testing. By stipulation the contents of the packages were proven to be heroin. The officers further testified that the lock on the hotel room door was broken and that they entered the room simply by pushing the door open.
The manager of the New Orleans Hotel and the desk clerk both testified on behalf of the defense. They corroborated the officers' testimony that they led the officers up to the second floor and unlocked the door leading to the second floor corridor. There were three apartments located off the corridor on the second floor.
Defendant's former girl friend also testified in his behalf. She was living with Hyman at the time of the arrest and was in the apartment that evening. She testified that the door had a lock on it and that the officers kicked the door open. She denied that Hyman threw anything on the floor when the officers came in.
The defendant testified on his own behalf. He informed the court of his prior felony convictions, including sale of narcotics. He then testified that on the evening in question the officers kicked open his door and came into his room in the New Orleans Hotel. Defendant claimed that the officers found the narcotics under the mattress and that these narcotics were for his own personal use. He had been a dope addict, on and off, since 1939. He permitted narcotics users to come to his room to take dope, in exchange for which they would give him narcotics for his own ...