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People v. Fox

NOVEMBER 30, 1970.

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,

v.

THOMAS F. FOX, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Will County; the Hon. MICHAEL ORENIC, Judge, presiding.

MR. JUSTICE ALLOY DELIVERED THE OPINION OF THE COURT:

Defendant Thomas F. Fox was found guilty of murder in a jury trial conducted in Will County and was sentenced to a term of 99 to 100 years.

Significant facts in the record indicate that on November 19, 1965, defendant Fox, who was working for a company installing sink tops, stated in a conversation with his employer that if he ever found his wife cheating on him he would kill her. At the end of that day, his supervisor told Fox that he would not be retained on his job. Fox was to meet his wife, Carol, at the home of Mrs. and Mrs. Yates at 8:00 P.M. on November 19 for supper. Carol went home with the Yates about 5:00 P.M. but defendant did not come to the Yates home until about midnight. He brought a bottle of liquor with him to the Yates house but did not appear to have been drinking very much before his arrival. Defendant and his wife ate pizza with the Yates and defendant had three mixed drinks. All appeared to be normal between defendant and his wife at that time. They left the Yates home at about 2:00 A.M. and arrived at their home in Lockport Township about 2:30 A.M.

On the morning of November 20, 1965, a friend stopped to pick up Mrs. Fox for work but there was no answer at the door so she went on without Mrs. Fox. Defendant was observed three times during that day driving up in front of his house but on these occasions he never got out of his car. That same afternoon, two boys, aged 14 and 15, who were playing in the yard of the Fox home noted that Mr. Fox arrived home again at about 3:30 P.M. with a puppy dog, and when the boys asked to use the bathroom in the Fox home, as they were accustomed to do, Fox refused to let them in. Defendant also told the boys that if anything happened to him, the puppy was to go to his daughter, Vicky. Defendant went into the house for about ten minutes and then came out and left.

At about 1:00 A.M. on the morning of the 20th, defendant had taken his two-year old daughter, Vicky, to his mother-in-law's home, and left her, but later returned with the puppy and played with his daughter in the yard. The mother-in-law stated that Fox apeared to be normal. On the same day, Fox visited with some friends and left a card with them for his daughter with $14 in it, although he returned the next morning and took $12 back. He told these friends, "If I had never gotten married, everything would have been all right. I would be a free man". Around 7:45 P.M. of the same evening of November 20, defendant was seen by an Illinois State Trooper walking along the road in Winnetka, Illinois. Defendant was staggering and had slurred speech. A breathalizer test showed that he was not intoxicated nor did he show any evidence of being under the influence of narcotics. At the police station, Fox indicated that he was going to call his wife, but after dialing two digits he hung up. Later that evening, police turned defendant over to his parents. Prior to his release to his parents, defendant was examined by a doctor who concluded that defendant was suffering from some mental abnormality but he did not feel it was legal insanity.

Following defendant's release by the police at Winnetka (on the evening of November 20), defendant left about noon on November 21 with two friends to drive to Kentucky. On the trip down and back, defendant told one of these friends that he and his wife had an argument during the early morning of November 20 and that he struck his wife and then blacked out. The next thing he remembered was waking up about 7:00 A.M. covered with blood and his wife dead in the bathroom.

While defendant was on the trip to Kentucky, his wife's body was found by the wife's mother and sister who had forced their way into the house to investigate about 7:30 A.M. on November 21. The Will County Coroner indicated that Carol Fox had died between 3:00 and 5:00 A.M. the morning of November 20, 1965, with death having been caused by a stab wound to the heart. There were long slash wounds across her body, across her scalp and neck and about 15 stab wounds in the chest.

Upon defendant's return from Kentucky around midnight on November 22, he was arrested and taken to a police station in Chicago. In the early morning of November 23 he was taken to the Will County Sheriff's office in Joliet. The record shows that no threats or promises were made at that time and the defendant was placed in a cell about 4:30 A.M. and allowed to sleep until 9:00 A.M. At 9:00 A.M. on November 23, defendant was taken to an office where he was told of his constitutional rights and also told that he did not have to say anything and what he did say could be used against him at a trial. Defendant was also advised of his right to have a lawyer present. Defendant stated that he did not want to have a lawyer and that he wished to make a statement. He proceeded to make his statement about 9:15 A.M. on November 23. The statement of the defendant which was read into evidence during the trial, detailed the defendant's activities on the night of November 19 and 20, and stated he was with his wife on the early morning of November 20 and did not remember striking his wife but woke up the next morning with blood all over him and his wife dead in the bathtub. He stated he did not know what caused her death. It was shown in the trial that no threats or promises were made to the defendant nor was there any physical duress of any kind.

At the trial of the cause, a physician who specialized in psychiatry, testified that he had examined defendant and concluded from his examination that defendant was sane when his wife was killed and was also sane at the time of trial. He also stated that he believed defendant had a fear that his wife was attracted to other men and that this fear and despair along with intoxication could have caused defendant to destroy his wife so that no one else could have her. Six lay witnesses testified that they had known defendant and in their opinion defendant was not abnormal at any time they had seen him.

Dr. Steinhorn, another psychiatrist, testified that he had examined defendant for one and a half hours before trial and then again for 25 minutes before the court convened on the day of his testimony. He stated that defendant was a "borderline case" which he indicated was a combination of being fairly normal at times to times of severe mental disturbance. When questioned as to his opinion regarding defendant's mental state at the time his wife was killed, the doctor stated that defendant could have been suffering from a mental disease at that time which caused defendant to lack the capacity to appreciate the criminality of his conduct. The doctor also stated that defendant had been dismissed from school and was AWOL in the Navy. Dr. Steinhorn also testified that he had received a memorandum, by a former defense counsel for defendant, which said, "Defense of insanity discounted due to chance of lifetime internment at Chester".

The major issue before this Court on appeal revolves around the failure of the trial court to hold a hearing to determine whether the statement made by defendant was voluntary. Defendant was denied a copy of the written statement made by him when the request was made prior to trial. When this request was denied, defendant filed a motion to suppress any statements made by him and set forth facts showing that he was entitled to a hearing on the question of whether such statement was voluntary. The State contended, before the trial court, that the defendant made no "confession", but merely a "statement", and that defendant was not entitled to a hearing on the voluntariness of a "statement". The trial court agreed with the State's contention. The statement was not exhibited to defendant or his counsel before the trial.

During the trial, the State called a deputy sheriff of Will County to identify the written and signed statement made by defendant on November 23, 1965. Defendant was then shown this statement for the first time and was given 15 minutes during the trial to examine it. Defendant then made a motion for a full hearing out of presence of the jury to determine the admissibility of the statement. The State opposed this request stating that it was not a confession but an admission. The court denied the motion for a hearing outside the presence of the jury. The court thereafter permitted testimony as to the statement. All of the testimony showed that defendant was specifically informed of his right to remain silent and that anything he said could be used against him. Defendant was also told that he could have an attorney present if he wished to. Defendant stated he did not want an attorney present. Witnesses all indicated that no promises were made to the defendant and that there were no threats or force used on defendant. The statement was then read into evidence at the trial in question and answer form. This statement was objected to by the defendant.

• 1 Under the decisions in this State, there is no distinction made between a confession and a statement. In People v. Lefler, 38 Ill.2d 216, the State attempted to introduce two oral and one written statements by the defendant in that case. Defendant requested a hearing outside the presence of the jury on the question of whether such statements were given voluntarily. The court denied the request on the ground that the statements were at most "admissions" rather than "confessions". The Supreme Court stated as to this contention (at Page 220):

"While the statements of the defendant were not in the strict sense of the word confessions to the crime of murder, it is apparent that they were not entirely exculpatory and that his admissions that he squeezed the child to keep her from crying were incriminating. The authorities in this State appear to be conflicting on the question of whether a preliminary hearing is ...


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