APPEAL from the Circuit Court of Cook County; the Hon. HERBERT
C. PASCHEN, Judge, presiding.
MR. JUSTICE KLUCZYNSKI DELIVERED THE OPINION OF THE COURT:
A jury in the circuit court of Cook County, on September 28, 1964, found defendant, Henry Mallett, guilty of the murder of Henry Kruk. A death sentence was imposed and defendant appeals directly to this court.
On October 25, 1963, three men, one of whom was later identified as defendant, entered the Rockwell Inn in Chicago and announced a "stick-up." During the robbery, Martin Kruk, operator of the tavern, was shot and later died as a result of the gunshot wound. A .38 caliber revolver and fifty-five dollars in cash were taken. The police recovered the gun from Luther Wells who testified that he purchased it from defendant, a friend of his, in late October, 1963. Defendant was arrested in his apartment about 3:30 A.M. on Saturday, November 16, 1963, taken to the Maxwell Street Station and there questioned intermittently until about 8:30 A.M. Later that morning defendant was taken to the State's Attorney's office where he gave and signed a statement implicating himself.
Defendant first argues that the trial court erred in failing to grant his motion to suppress the confession. Specifically he contends it was inadmissible because (1) it was taken in violation of the principles of Escobedo v. Illinois, 378 U.S. 478, 12 L.Ed.2d 977, 84 S.Ct. 1758, (2) it was made while he was in custody after the issuance of an arrest warrant and prior to his appearance before a judge and (3) it was not proved to be voluntary.
In relying upon Escobedo defendant argues that he was not warned of his right to remain silent and a request to consult with counsel was denied. In several cases we stated that Escobedo applies only to the situation where the suspect has requested and been denied an opportunity to consult with counsel, coupled with a failure to warn accused of his right to remain silent. (People v. Heise, 35 Ill.2d 214; People v. McGuire, 35 Ill.2d 219; People v. Hartgraves, 31 Ill.2d 375.) Apparently he was not effectively warned of his right to remain silent, but the only evidence in the record that he ever requested counsel before signing the confession came from defendant. All of the persons who were with him from the time of arrest until he signed the confession testified that he never made a request for an attorney in their presence. Under these circumstances the trial court was justified in finding that no request for counsel was made. Therefore, the Escobedo standards are not applicable and do not render the confession inadmissible.
Defendant next argues that the confession should not have been admitted because it was obtained during a period of illegal detention after he was arrested upon a warrant and before presentment to a judge. The testimony of defendant and of the police officers is in substantial agreement as to the time of the arrest, interrogation by the assistant State's Attorney and the signing of the confession. After being arrested defendant was taken to the Maxwell Street police station and held there until about 8:30 A.M. Twice during the interval between arrest and 8:30 A.M. he was taken from the station to locate people and places he mentioned in his statement. Later the police took him to the criminal court building and about 10:30 A.M. he was interrogated by an assistant State's Attorney. Thereafter, he was taken to a restaurant to eat and at 11:30 brought back to sign the confession.
Defendant does not urge us to adopt the Federal 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 unnecessary delay in presentment before a magistrate per se renders a confession inadmissible. We have repeatedly stated that the McNabb-Mallory rule does not rest on constitutional principles and does not of necessity apply to State criminal prosecutions. (People v. Harper, 36 Ill.2d 398, and cases there cited.) Rather, defendant urges the adoption of a limited application of the McNabb-Mallory rule when the detention during which a confession is obtained is after an arrest upon a warrant.
He contends that the question of the admissibility of a confession obtained after an arrest upon a warrant and prior to presentment before a judge has been presented only once before, and that was to the Supreme Court of Wisconsin in Phillips v. State, 29 Wis.2d 521, 139 N.W.2d 41. However, in that case defendant was arrested without a warrant at 11:30 A.M., signed a written confession about 4:30 P.M., was presented to a magistrate the following day, and the confession was held admissible.
Under the statute (Ill. Rev. Stat. 1963, ch. 38, par. 109-1) the duty of the arresting officer to take an arrested person before a judge without unnecessary delay is the same whether arrested with or without a warrant. Here it was obviously impractical to take defendant before a judge immediately upon arrest at 3:30 A.M. on Saturday. Failure to present defendant to a judge prior to 11:30 A.M. does not appear to be so unreasonable as to require automatic exclusion of a confession obtained during detention after arrest upon a warrant. "The legislative directions that an accused be taken before a magistrate `forthwith' or `without unnecessary delay' cannot mean that police officers forsake all other duties to comply, and neither can they mean that the police do not have reasonable latitude to fully investigate a crime." (People v. Jackson, 23 Ill.2d 274, 280.) While defendant was in custody from 3:30 to 11:30, a considerable portion of that time was spent in traveling from place to place. The questioning was not continuous and intensive during this time but was done intermittently. There is no evidence that defendant was led to believe he could or would be held indefinitely if he did not confess. (Cf. Davis v. North Carolina, 384 U.S. 737, 16 L.Ed.2d 895, 86 S.Ct. 1761; People v. Moriarity, 33 Ill.2d 399.) The detention was not so unreasonable or oppressive as to require exclusion of the confession.
Defendant also argues that the State failed to prove the voluntariness of the confession. He testified that he was arrested in the early morning hours by four armed policemen, handcuffed in the squad car and struck several times, handcuffed to a window screen in the police station until about 8:30 A.M., was not provided with food, and was not warned of his right to consult with counsel or to remain silent. He does not complain about his treatment during the interval from approximately 8:30 A.M. until he arrived at the criminal court building. The State's witnesses denied that defendant was ever hit. They testified that one of his arms was handcuffed to a window screen for a time while another arm was free, and while so handcuffed he was seated on a chair with a padded seat cushion and back rest. Defendant was not questioned continuously but was twice taken from the station in order to direct police officers to people and places referred to in his statement. They further testified that defendant never requested food and when taken to a restaurant shortly after 10:30 A.M., he said he was not hungry and did not finish what he had ordered.
It is defendant's theory that the circumstances with regard to his (1) intelligence, schooling and race, (2) conditions of arrest, (3) detention conditions, (4) legality of custody and (5) constitutional warnings, although not individually sufficient to invalidate the confession, when taken together result in a statement which was not voluntarily made and which should therefore not have been admitted in evidence. These factors will be considered separately and then collectively.
We have stated that consideration should be given to a defendant's age, education and experience at the hearing on the motion to suppress. (People v. Cocroft, 37 Ill.2d 19; People v. Nemke, 23 Ill.2d 591; People v. Hall, 413 Ill. 615.) The defendant is a Negro who attended a graded elementary school for three years. After third grade he went to an ungraded school for emotionally disturbed boys, and thereafter, at age 16, was transferred to a continuation school. When he was 9 years and 7 months old, his mental age was, according to a revised Stanford-Binet test, 7 years and 4 months and he had an IQ of 77 which is in the dull to normal range. The record does not show how long defendant remained in school or what his level of education or intelligence was at the time of making the confession. He was then 22 years of age, married, the father of two children and had previously served 90 days for petty larceny, 3 months for malicious mischief, 4 months for tampering with an automobile, and 6 months in Vandalia and was given one year probation for petty larceny.
Here, as in Cocroft, defendant's testimony at the hearing on the motion to suppress was lengthy and cross-examination substantial so as to afford the trial court sufficient opportunity to observe and evaluate his education, intelligence, experience and ability to comprehend the significance of his statements.
The second factor concerns the manner of arrest. Defendant was arrested about 3:30 A.M. by four armed policemen. They knew they were dealing with a man suspected of violence, murder and armed robbery. He had left his home and spent several weeks in Detroit while the police were looking for him. In making an arrest of such a person, means otherwise considered improper may be utilized in order to insure the safety of the police officers and avoid flight by the defendant. (People v. Macias, 39 Ill.2d 208.) The manner of arrest was not unreasonable and would not reasonably tend to cause a confession to be made some seven hours later.
The conditions of detention of which defendant complains, as set forth in the facts earlier, were not so unreasonable or oppressive as to coerce or ...