APPEAL from the Circuit Court of Cook County; the Hon. JAMES
M. BAILEY, Judge, presiding.
MR. JUSTICE ROMITI DELIVERED THE OPINION OF THE COURT:
The defendant, Joseph Swansey, appeals his conviction, following a bench trial, for the murder and rape of Lorna Martin. Defendant seeks a new trial, contending: (1) the trial court erred in failing to suppress evidence and testimony obtained as a result of an illegal search; (2) the trial court's determination that defendant was sane at the time of the killing was contrary to the manifest weight of the evidence; (3) the trial court on its own motion should have ordered a competency hearing for the defendant; (4) defendant's trial attorneys were incompetent.
We affirm the judgment of the trial court.
The evidence as to defendant's guilt was overwhelming, and he does not challenge its sufficiency. The victim's body was found in the basement of the defendant's home. After questioning by police he confessed to having had forcible sexual intercourse with the victim, and to having struck the blows which caused her death. Defendant does, however, assert that this damaging evidence should not have been admitted at trial because it was obtained as the result of an unconstitutional search. The pertinent facts follow:
On Saturday, January 19, 1974, Investigator James Breckenbridge was assigned to investigate the apparent abduction of the victim who had been reported missing by her parents the day before. A witness had seen a young girl being dragged down an alley in that neighborhood. Breckenbridge had a description of a possible suspect, a husky male Negro, age 12 to 15, five feet, five inches, wearing a dark brown 3/4-length coat, a black knit cap, and dark trousers. A neighborhood boy told Breckenbridge that a friend of his, the defendant, had clothes fitting the clothing description of the suspect. The defendant was two days short of being 15 years of age at the time of the offense and was 17 at the time of trial. Defendant's home had been searched by police, with the consent of defendant's mother, the evening before. Breckenbridge apparently knew this because he had a list of homes in the area that had not yet been searched and the list omitted defendant's home. However, Breckenbridge also knew that bloodstained clothes and a book belonging to the victim had been found across the alley near that home. Breckenbridge and two other investigators went to the home, but no one was there. Neighbors informed them that Mr. and Mrs. Swansey and two of their sons had driven away. At that time defendant's 13-year-old brother, Micah, appeared. According to Breckenbridge, Micah informed them that he lived at the home and asked if they wanted to go in, saying that police had been there and searched the home and it was all right. Micah opened the door with a key and Breckenbridge and two other investigators followed him inside. Two investigators who had apparently arrived separately remained in a car outside. Breckenbridge observed that a large dog, confined in a small cage in the basement, was barking, so he closed the door to the basement stairs. He and the other officers sat down at the dining room table and talked with Micah as they waited for his parents and two brothers to return. Breckenbridge showed Micah a photograph of the victim and ascertained that Micah knew her. He also told Micah they had found some of her bloodstained clothes and indicated that they did not know whether she was dead or alive. Breckenbridge then asked Micah where around the house a body could be hidden. Micah told him they had a crawl space where a body could be hidden. He said he would show them and proceeded down the stairway to the basement. There Micah cleared away some toys and moved a sliding board to reveal the crawl space. The victim's body was found inside the space. Micah was not advised of his right to refuse permission for a search, nor was he told that a search warrant was ordinarily required. Breckenbridge testified that his purpose in coming to the home was to interview the defendant in the presence of his parents; his purpose was not to search the house. However when Micah responded to his question about hiding a body with the information about a crawl space, he became concerned that the victim might be in there alive.
Micah's testimony concerning these events was substantially the same, with the following differences. The police asked him if it was his house and if they could look around. He told them they could. As he approached the door with his key, in order to open it, one policeman took the key from him, opened the door, and about five police walked in. Two looked around downstairs while the other three went upstairs. He was then asked about the best place to hide a body, and he responded that the crawl space was the best place. The police asked where that was and he said "come on, I'll show you." The victim's body was then found in the crawl space. Micah said that his father's general rule was that he was not to let anyone else in the house while his father was away. He was not given any special instructions about letting people in that day. The night before the victim was found, while Micah was at home, his mother allowed the police to search the home.
Micah's father testified that Micah had a key to the house from the time he was nine years old. He never specifically told Micah not to let police in the house but he had given him general instructions to only use the key for his own access and to exclude all others when he was in the house.
Micah's mother testified that on Friday night (the day before the victim was found) she had consented to a police search of her home. That night she also allowed Micah and his two brothers to help look for the victim outside. Prior to the police search that Friday night, when she left the house for several hours, she instructed her sons not to open the door for anyone. She also testified that her children were under general instructions to only use their keys to let themselves in and out, and not to let anyone else in.
It is defendant's contention that the consent to this search was invalid because Micah lacked the capacity to consent and because his consent was not voluntarily given.
1 One factor on which defendant relies is Micah's young age, 13 at the time of the search. But defendant has cited no case, nor has our research uncovered any in which age alone was held to be dispositive in determining that consent was not validly given. Where consent by minors has been at issue it is clear that age was only one of a number of factors considered by the courts>. Thus in People v. Sommer (1977), 45 Ill. App.3d 459, 359 N.E.2d 1190, and People v. Kincaid (1977), 51 Ill. App.3d 975, 367 N.E.2d 456, the age of the two consenting people, 17 and 16 respectively, was but one factor considered, along with the time of the intrusion, whether there was some initial resistance or refusal, and whether there was knowledge of a right to refuse. In those cases the consent was held invalid, but in Davis v. United States (9th Cir. 1964), 327 F.2d 301, consent to an intrusion was held to be valid, even though given by an eight year old, because there was no evidence of police subterfuge or a lack of authority in the child to let people in the door. We cannot, therefore, isolate the age of Micah from the other factors of the case. But defendant also seeks to establish Micah's incapacity to consent because he had no ownership interest in the home. It is well established, however, that where two people have an equal right to the use or occupancy of a home, either may consent to a search of that home. People v. Perroni (1958), 14 Ill.2d 581, 153 N.E.2d 578, cert. denied (1959), 359 U.S. 1004, 3 L.Ed.2d 1033, 79 S.Ct. 1145; People v. Haskell (1968), 41 Ill.2d 25, 241 N.E.2d 430; People v. Johnson (1975), 32 Ill. App.3d 36, 335 N.E.2d 144.
2 Here, Micah had keys to his home for his use since he was nine years old. Although his parents testified that he was under instruction not to let others in, the trial court specifically discounted this testimony, noting that it came in response to leading questions by counsel. Also the testimony did not establish whether these purported rules were meant to apply to police officers in search of a missing person. Indeed, Micah was present when his mother gave the police permission to search the home for the victim the night before she was found. She also gave him permission to help in a search of the neighborhood. We have noted that his age was not an automatic barrier to his capacity to consent. On that point the trial judge, who observed Micah's testimony, stated on the record that he was a "very intelligent little boy." Considering all these factors we conclude that the trial court was justified in finding that Micah had the capacity and authority to consent to the search.
3 Defendant also questions the voluntariness of this consent. The determination of voluntariness by the trial court should be accepted on review unless clearly unreasonable. (People v. Sommer (1977), 45 Ill. App.3d 459, 359 N.E.2d 1190; People v. DeMorrow (1974), 59 Ill.2d 352, 320 N.E.2d 1.) And the totality of the circumstances is to be considered in determining voluntariness. People v. Anderson (1976), 42 Ill. App.3d 1040, 356 N.E.2d 1076.
4 Micah's testimony, as well as that of the police, established that he voluntarily allowed the police to enter his home. Even Micah's testimony that the key was grabbed from him, testimony contradicted by the police, does not indicate lack of consent for he also testified that he was heading for the door to open it when the police took the key. The failure to advise Micah of his right to refuse entry to the police, while certainly a factor to be considered, does not automatically invalidate the consent. (People v. Sommer (1977), 45 Ill. App.3d 459, 359 N.E.2d 1190.) The entry here was made in the daytime, with no reluctance ...