APPEAL from the Circuit Court of Winnebago County; the Hon.
WILLIAM R. NASH, Judge, presiding.
MR. JUSTICE GUILD DELIVERED THE OPINION OF THE COURT:
The defendant Franklin Hickman Jr. was found guilty by a jury and was sentenced to 10-20 years for attempt murder and 10-14 years for attempt armed robbery, the sentences to run concurrently. The defendant had been jointly indicted with three other defendants for attempt murder and attempt robbery. Upon motion of defense counsel a severance was granted and Hickman was tried separately, he being the one that allegedly did the shooting.
The evidence indicates that on the 16th of September, 1969, Peter Scalia, the manager of the Park View Liquor Store in South Beloit, Illinois, who was tending the business alone, saw two men in the store. One of them said "this is a stick up" pointing a gun at him. Scalia was shot in the stomach. After he was shot he threw a folding chair and chased the men out of the store where he fired at them and then collapsed upon the sidewalk. Scalia identified the defendant in open court.
The Winnebago county deputies together with detectives from District 1 Headquarters of the Chicago Police Department arrested the defendant in the Roosevelt Hospital in Chicago on September 22nd, 1969. He was allowed to talk to his mother and girl friend personally for approximately one hour in the squad car. Defendant was taken from the hospital at 10:30 in the evening to District 18 Headquarters in Chicago. The Winnebago county deputies left Chicago District 18 Headquarters at approximately 4:00 o'clock in the morning and drove to Michael Reese hospital where defendant was given medical attention. About 5:00 o'clock they left Chicago for Rockford, arriving there at 7:00 o'clock in the morning. Around 9:30 A.M. Rolland McFarland, an assistant state's attorney arrived at the jail. The defendant was allowed to make telephone calls, and he called his mother and his girl friend. The defendant then signed waivers as to his rights. He was questioned in the presence of the assistant State's Attorney and Detective Mickelson and a four page statement was made by him in which he admitted the shooting. Corrections were made on the statement by the defendant and initialed but he refused to sign the same. A copy of this statement was furnished to the defendant and the attorney at the arraignment.
At the trial the State offered evidence as to defendant's arrest at the hospital in Chicago. Out of the presence of the jury the record indicates that the defendant was given a partial Miranda warning at that time. (Miranda v. Arizona 384 U.S. 436.) However, he made no statement to the officers. In driving from the hospital to the District headquarters one of the officers "questioned the defendant in relation to the location of the gun." Hickman told him that it was under the mattress at his girl friend's house. The record discloses no other statement was made by the defendant at this time. The defendant's counsel objected to this offer of evidence and the court refused to allow the testimony to be presented to the jury. No further reference was made to the gun in the trial, but it was not introduced into evidence, nor does the record disclose that the gun was recovered.
The trial proceeded and defense counsel objected to the admission of the statement made by defendant about 10:00 o'clock in the morning. Apparently, the stenographer finished transcribing the statement about 1:00 P.M.
As indicated above, a copy of this statement was furnished defendant's counsel at the time of arraignment and at no time prior to trial did counsel for the defendant move to suppress the statement. At the trial a hearing again was held outside the presence of the jury in which defense counsel stated the statement was not a "confession" but contended that under Miranda the defendant had not been properly warned of his rights in Chicago and that therefore the statement subsequently obtained the next morning was in contravention of the rights guaranteed him by the Miranda case and subsequent decisions. The court refused to suppress the statement but after a lengthy hearing in chambers ruled that witnesses could testify as to what the defendant said pertaining to this offense only. The statement itself was not introduced into evidence. The substance of the defendant's statement, according to the witnesses, was that he and three other defendants drove to a shopping center in or near Rockford; that he reached under the seat of the car, took his gun, and he and defendant Buford entered the liquor store. Hickman told Scalia that he wanted money and then fired two shots stating that "he shot up at him" and "shot in front of him" trying to stop Scalia from getting out of the store. He further stated that he ran from the store and fell attempting to get into his car, dropping his glasses and was injured, and that he went to the hospital in Chicago as a result of those injuries. The glasses were subsequently recovered at the scene and identified by the defendant at the trial as his glasses.
The record further indicates that various bullets were recovered at the scene and a bullet was removed from the body of Mr. Scalia. Some bullets recovered at the scene were identified by a witness from the Illinois Bureau of Identification as being bullets fired from the gun used by the victim Scalia in resisting attempted robbery, and the bullets recovered from the body of the victim and from the premises, came from a different .38 caliber gun.
The defendant took the stand in his own behalf and testified that he and the three other defendants went to the liquor store for the purpose of buying wine; that he and Buford entered the liquor store; that he had a revolver sticking in his hip pocket; and that the liquor store proprietor Scalia stated to him "you must be crazy, you must be a dam fool. Are you trying to rob me again?" Defendant further testified that Scalia threw a chair at him; that he pulled his revolver off from his hip "so it might not discharge on me and that a bullet went off into the ceiling." He denied that in his statement made before the assistant State's Attorney and the police detective that he admitted that it was a stick-up and that he shot Mr. Scalia.
The most vigorous contention of the defendant is that the name of the stenographer who transcribed the defendant's statement taken at about 10:00 o'clock in the morning was not furnished in the list of witnesses which was supplied to him together with the statement, nor was the stenographer called as a witness. While defense counsel did not consider the statement made by the defendant to be a confession it would appear that all the elements of a confession were present in the statement. At no time during the trial did the defendant through his counsel object to the confession on the ground that the name of the stenographer was omitted.
"* * * he had not previously been furnished a complete list of persons present when the confessions were made as specified by statute."
A witness was called who apparently was present at the time of the confession and that testimony was objected to on other grounds. The court held:
"By failing to call the alleged error to the trial court's attention by appropriate objection, defendant waived the statutory requirement and cannot for the first time raise the issue upon writ of error."
The court thereupon went on to find that the evidence of defendant's guilt was such that a reversal was not required. A similar situation is found in People v. Hubbard (1967), 38 Ill.2d 104, 230 N.E.2d 220. In the Hubbard case the Supreme Court reversed the conviction, but in so doing, stated with relation to Sec. 114-10 of the Code of Criminal Procedure (Ill. Rev. Stat. 1963, ch. 38, par. 114-10):
"* * * The record shows, however, that no request for such a list was ever made by the defendant, nor was the testimony relating to the confession objected to at the trial. By failing to call the alleged error to the trial court's attention by appropriate objection, defendant waived his right under the statutory requirement and cannot for the first time raise the issue in a reviewing court."
• 1 It is the opinion of this court that the presence of the stenographer at the time the statement was given came to the attention of the defendant during trial, and his failure to raise an objection at that time to the omission of the stenographer's ...