WRIT OF ERROR to the Circuit Court of Cook County; the Hon.
HAROLD P. O'CONNELL, Judge, presiding.
MR. JUSTICE BURT DELIVERED THE OPINION OF THE COURT:
Rehearing denied March 23, 1970.
By writ of error issued pursuant to the provisions of former Rule 65-1 (Ill. Rev. Stat. 1963, ch. 110, par. 101.65-1) defendant, Isiah Johnson, seeks reversal of his 1962 convictions of the crimes of rape and burglary on which he received concurrent sentences of 20 to 50 years and one to 20 years respectively. Judgment in the rape case followed a verdict of guilty by a jury after which it was stipulated by counsel for both sides that the evidence on the burglary charge would be the same as in the rape case. A finding of guilty on the burglary charge was made by the court after a jury had been waived. The errors assigned relate to the admission into evidence of certain confessions, the imposition of sentences and trial procedures. Ben Ward and Hiram Brooks, who were found guilty of both crimes after being tried jointly with Johnson, are not parties to this appeal.
On September 20, 1961, prosecutrix lived with her husband at 1924 West Van Buren Street in the city of Chicago. The husband was serving his internship at Cook County hospital and his wife was employed as a nurse on the night shift at Illinois State Psychiatric Institute. The small apartment in which they lived had only one entrance which was at the rear of the building. At about 11:50 P.M. prosecutrix was preparing to go to her place of employment. The outside screen door was closed and latched but the inside door was open. She heard a noise, and thinking it was her husband returning from his work, unlatched the door and went into the bathroom.
A short time later when she re-entered the kitchen she was confronted by a young Negro whose face was partly covered with a bandana. After demanding money and meeting with some objection on the part of his victim, he became violent, threatened her with a rolling pin, and finally, after ransacking the kitchen, went into the bedroom where he found prosecutrix's purse and took money from it. As she watched this proceeding she suddenly found her arms pinned to her sides by a second man. The two men then threw her onto the bed, removed her undergarments and forcibly raped her. A third man who entered later also raped her but she was unable to see him because at this time a pillow was being held over her head. The faces of the other two were partially covered at all times. After the men had gone prosecutrix called the police who took her to a hospital for examination. Testimony of the officers who responded to the call establishes that the apartment was in considerable disorder and prosecutrix was in a hysterical condition.
On September 25, 1961, at about 9:30 P.M. Ben Ward, later a co-defendant with Johnson, was arrested by police officers on the basis of a description given them. Ward was taken to the Warren Avenue police station where he was interrogated. Prosecutrix was brought to the station to view Ward and at the trial testified that the man she saw there was the second who entered her apartment. An officer then went to Ward's home and recovered a camera and raincoat which were later identified by both prosecutrix and her husband as items which had been taken from their apartment.
At about 12:30 A.M. on September 26, 1961, four police officers, accompanied by Ben Ward, went to the home of Hiram Brooks where Brooks was arrested. Thereafter all proceeded to the home of Isiah Johnson. After Johnson had been arrested, the three suspects were taken by the officers to the police station where all three were interrogated in the presence of five or six police officers and in the presence of each other. Statements in question and answer form were eventually signed by each of the defendants. Ward's statement was also signed by Brooks and Johnson as witnesses. In these statements the suspects confessed to the rape and robbery related by prosecutrix.
A second statement was taken in the criminal court building on September 26, 1961, at about 10:00 A.M. in an interview with an assistant State's Attorney of Cook County. This was transcribed by a court reporter. The record shows that, in Johnson's case at least, the second statement is the same in all material respects as the first. The three defendants were taken before a magistrate on the morning of September 27, 1961, where they were formally charged with the crimes.
Prior to trial Johnson and Brooks made a motion to suppress their confessions on the ground that they had been given under duress, violence and threats. Ward did not join in the motion. After a full hearing the motion was denied and this results in the first assignment of error. Johnson's testimony at the hearing on the motion relates that Ward was beaten by the officers until he implicated Brooks and Johnson; that an officer then presented Johnson with a prepared written statement and told him to sign it, reminding him that he had seen "what Ward got"; that when he refused to sign, the officer seized him by the collar, hit him and threatened to kick him; that he signed only as a result of this coercion. Johnson further testified that when prosecutrix was brought into the room while he was being interrogated he at first denied it when asked if this was the woman he attacked but that later, after he had asked her to remove her glasses, he stated he wasn't sure. He finally admitted on re-direct examination that an officer had read his statement to him and that he had also read it prior to signing.
In testifying on the motion Brooks did not claim that he was struck or physically abused at any time and he further stated that he did not see an officer strike Ward, as claimed by Johnson. He did say he saw a policeman slap Johnson after telling him to "sit back down". As to what happened when prosecutrix entered the room, Brooks testified that after she had removed her glasses Johnson said: "That look like her". Brooks also testified that a prepared statement was submitted to him but admitted that the questions appearing in his signed statement had been asked and that he had made some of the answers. He finally said that the signed statement had been read to him by an officer before he signed it.
Six police officers testified on the motion to suppress and denied that there had been any physical or psychological coercion in connection with the giving of the statements. All threats or acts of violence mentioned by defendants were specifically denied. The officers described in detail the procedures used in taking and transcribing the statements and their evidence as a whole shows that the entire process lasted less than two hours. One officer testified that when prosecutrix entered the room Johnson identified her as the person he attacked after asking her to take off her glasses. It was further testified that all defendants were present at all times during the interrogation and each of the defendants, with the possible exception of Ward, read his statement before signing it. In addition, there was a flat denial that any of the statements had been prepared in advance of the interrogations.
The determination of the question whether or not a confession is voluntary depends not on any one factor, but upon the totality of all the relevant circumstances. (People v. Nemke, 23 Ill.2d 591, 600.) Johnson, hereafter referred to as defendant, urges that the failure to take him before a magistrate without unnecessary delay as required by statute (Ill. Rev. Stat. 1961, ch. 38, par. 600) renders his detention illegal and any statements taken during the period of illegal detention inadmissible. He urges that this court adopt the rule established in McNabb v. United States, 318 U.S. 332, 87 L.Ed. 819, 63 S.Ct. 608, and Mallory v. United States, 354 U.S. 449, 1 L.Ed.2d 1479, 77 S.Ct. 1356, that failure to present a defendant before a magistrate as required by law per se renders a confession obtained during the period of detention inadmissible. We have consistently pointed out that these cases do not rest upon constitutional principles and do not of necessity apply to State criminal prosecutions. (People v. Harper, 36 Ill.2d 398, 402; People v. Novak, 33 Ill.2d 343, 348; People v. Kees, 32 Ill.2d 299, 302; People v. Melquist, 26 Ill.2d 22, 28.) We have held, rather, that an unreasonable delay in presenting a defendant before a magistrate is a circumstance to be taken into consideration in determining whether or not his confession was voluntary. (People v. Harper, 36 Ill.2d 398, 402.) In a case recently decided we held that a detention of 34 hours before judicial presentment did not of itself render a confession obtained during the period inadmissible although it was a circumstance to be considered on the question of voluntariness. (People v. Nicholls, 42 Ill.2d 91, 101.) We believe this represents the better view and are not prepared to hold that the period of some 36 hours which intervened between defendant's arrest and his presentment in court is alone sufficient to invalidate his confession. From the taking of the original statement some hour or so after defendant's arrest the only thing of any significance which happened prior to his presentment was the taking of a second statement in the State's Attorney's office which is, as we have said, in all material respects like the first.
Defendant also suggests that his confession is unreliable because the procedural safeguards required in Miranda v. Arizona, 384 U.S. 436, 16 L.Ed.2d 694, 86 S.Ct. 1602, were not followed. Since the trial in this case took place prior to June 13, 1966, the requirements of Miranda have no application except that failure to observe such procedural safeguards may always be considered as a circumstance in determining voluntariness. (People v. Jackson, 35 Ill.2d 162, 167; People v. Hartgraves, 31 Ill.2d 375, 379; People v. Kees, 32 Ill.2d 299, 302.) There is some evidence in this case that part of the Miranda warnings were given. The failure to give the others is not of itself sufficient to strike down the confession.
The preliminary inquiry into the voluntary nature of a confession is a question of its competency and is for the trial court. In making its decision the court is not required to be convinced beyond a reasonable doubt. (People v. Carter, 39 Ill.2d 31, 38; People v. De Simone, 27 Ill.2d 406, 409.) The finding of the trial court on this question will not be disturbed unless it can be said that it is contrary to the manifest weight of the evidence. (People v. Nicholls, 42 Ill.2d 91, 101; People v. Daily, 41 Ill.2d 116, 120; People v. Kirk, 36 Ill.2d 292, 295.) The decision of the trial court in this case is entirely consistent with the evidence presented. There is little evidence of coercion in defendant's own version of what transpired and the ...