Appeal from the Circuit Court of Cook County, Criminal
Division; the Hon. RICHARD J. FITZGERALD, Judge, presiding.
MR. JUSTICE MCNAMARA DELIVERED THE OPINION OF THE COURT. Defendant, Warren Bryant, was indicted for the unlawful sale of a narcotic drug, in violation of Ill Rev Stats 1965, c 38, § 22-3. After a jury trial he was found guilty as charged and sentenced to the Illinois State Penitentiary for a period of 10 to 15 years. Defendant appeals, contending that his oral confession was incompetent and inadmissible because he was unaware of his constitutional rights and under the influence of narcotic drugs; that the trial court erred in admitting into evidence the testimony and information received from the informers; and that, since the confession was inadmissible, other evidence presented by the State did not prove defendant's guilt beyond a reasonable doubt.
Before trial, defendant's counsel presented a motion to suppress all evidence obtained by the arresting officers at the time of arrest, including defendant's oral admission, contending that the police had no reasonable cause for the arrest. The court denied that motion.
For the State, Kenneth Fason, also known as Raymond Savoy, testified that on February 17, 1965, he went to the arresting police officers and stated that he could make a purchase of narcotic drugs that evening. He was searched by the officers and given a five-dollar bill and five singles in marked money, and a radio transmitter. The two officers and Fason then went to the area of 63rd and Dorchester in Chicago where Fason entered a bar called the Zebra Lounge. He met the defendant and arranged to buy some narcotics from him. They then met about a block from the bar, where the sale took place. By use of the radio transmitter, Fason notified the police of the location and gave a description of defendant who was entering a nearby liquor store. One of the officers went to the liquor store and arrested defendant and another man. Meanwhile, Fason had given the other officer the package containing the narcotics and the remaining marked dollar bill. Fason also testified that he had been a drug addict for about ten years, although he was not an addict at the time of trial. He had been charged with selling narcotics. This charge was stricken with leave to reinstate on the condition that he cooperate with the police, and Fason had participated in controlled purchases of narcotics on several prior occasions. During the hearing on defendant's pre-trial motion to suppress the evidence, one of the police officers stated that he had given Fason some money from time to time for rent and food.
The two police officers testified that after arresting the defendant, they took him to a fire station and searched him. The search revealed four of the marked dollar bills. Defendant was informed that he was charged with a sale of narcotic drugs, and he admitted the sale. The package recovered from Fason was found to contain heroin.
On his own behalf, the defendant testified that he did not sell drugs to Fason, and denied making an oral confession to the police officers. He testified that he and two friends went to buy some narcotics from a seller and that he purchased two five-dollar bags of heroin. He and a friend then injected themselves with the heroin, went to a bar for a beer and then went to a liquor store to buy some more beer. They were arrested as they walked out of the liquor store.
Defendant contends that his oral admission was involuntary because of the circumstances under which it was given. He claims that not only was he uninformed of his constitutional rights, but that he was also under the influence of narcotic drugs and the cumulative effect of all these circumstances surrounding the confession made the defendant unaware of the consequences of his statements, thus making his confession involuntary and inadmissible.
The admission or confession was introduced at trial in the following manner:
"STATE'S ATTORNEY: Q: Detective, at the time when you talked by the sink, with Mr. Bryant and Detective Kelly, what was said by Bryant and by yourself?
"A: I said to Warren Bryant, `I have a sale of heroin on you.' And then I showed him the money, the four one-dollar bills. And I turned to the mark that we had. And I told him that he was under arrest for sale of heroin. And he said to me, `I sold the stuff to your man but I'd copped from someone else.'
"And I said to him, `If you copped from somebody else how come all the money isn't here and where is the other money?'
Although our Supreme Court has stated that there is "a distinction between a statement which is only an admission and one which constitutes a confession of guilt. . . ." People v. Georgev, 38 Ill.2d 165, 230 N.E.2d 851 (1967), the distinction is immaterial for purposes of admitting an involuntary statement. People v. Knox, 90 Ill. App.2d 149, 234 N.E.2d 128 (1967).
At trial defendant's counsel did not object to the admission on the ground that it was involuntary, and the trial court at no time ruled on that issue. Thus we must first decide whether defendant, who was adequately represented at trial, can raise this issue for the first time on appeal.
[2-4] In Jackson v. Denno, 378 U.S. 368 (1965), the United States Supreme Court held that a defendant in a criminal trial has a procedural due process right to a fair hearing and a reliable determination of the voluntariness of his confession. In Illinois, a defendant may raise the issue either by pretrial motion or when the confession is introduced into evidence by the State. People v. Strader, 38 Ill.2d 93, 230 N.E.2d 569 (1967). And once the issue is raised, the trial court must even on its own motion conduct a hearing on the voluntariness of the statement. People v. Taylor, 33 Ill.2d 417, 211 N.E.2d 673 (1965). However, if defendant was adequately represented at trial and did not there question the voluntariness of his confession, he cannot raise the issue on appeal. People v. Hiller, 7 Ill.2d 465, 131 N.E.2d 25 (1955); People v. French, 33 Ill.2d 146, 210 N.E.2d 540 (1965). We so hold in the instant case. The due process requirements set ...