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People v. Kincaid





Appeal from the Appellate Court for the Fourth District; heard in that court on appeal from the Circuit Court of Macon County, the Hon. Donald W. Morthland, Judge, presiding.


The defendant, Frank Louis Kincaid, was charged in a two-count information with indecent liberties with a child (Ill. Rev. Stat. 1977, ch. 38, par. 11-4) and contributing to the sexual delinquency of a child (Ill. Rev. Stat. 1977, ch. 38, par. 11-5). He was convicted of indecent liberties with a child after a bench trial in the circuit court of Macon County. The second count merged into the first. The appellate court affirmed, with one justice dissenting. (87 Ill. App.3d 552.) We allowed the defendant's petition for leave to appeal (73 Ill.2d R. 315).

On the night of his arrest, July 20, 1979, the defendant made an inculpatory statement to the police during questioning. At the hearing on a motion to suppress the statement, which motion was denied, and later at trial, the following facts were produced.

The defendant was arrested at approximately 7 p.m. on July 20, 1979. After signing a Miranda rights waiver form, the defendant was interviewed at approximately 8 p.m. by Detective Roy Glick of the Decatur police department. At that time the defendant denied that he had committed indecent liberties with a child. The defendant maintained he had been at work on June 12, 1979, the night in question. The defendant was then placed in a cell at the Decatur city jail. He tried to speak to a police employee passing by the cell, but the employee refused to speak to him. The defendant then attempted to hang himself, using his shirt and tying one end around his neck and the other end to one of the bars in the cell. A police officer discovered the defendant choking and gagging on the floor of the cell. The officer cut the shirt with a knife. The defendant was then taken to a hospital where, after he acted in an unruly manner to the point of biting a thermometer in half, he was injected with five milligrams of Haldol, a major tranquilizer. The injection occurred at approximately 10:20 p.m. The attending physician, Dr. John Miller, released the defendant at 10:55 p.m. When he was returned to jail, the defendant was placed naked in a cell in order to prevent any further suicide attempts. Thereafter, Detective Glick told two other officers, Clifford Kretsinger and Richard Ryan, that the defendant would need to be questioned again because Detective Glick had discovered that the defendant had not been at work on the night of the alleged offense, as he had originally informed Detective Glick. Before Officers Kretsinger and Ryan questioned the defendant, he again signed a Miranda rights waiver form and initialed each paragraph on the form. The defendant's surname in the second signature is not as legible as in the signature he wrote during the initial interrogation. Detectives Kretsinger and Ryan then questioned the defendant again.

Officer Ryan testified during the hearing on the motion to suppress that the defendant stated he knew the alleged victim's family because they lived near his mother's apartment. He then said that he remembered spending the night with the alleged victim during the first part of June. According to the defendant, also present that evening were his sister, Jackie, Wanda Page, defendant's girlfriend, and defendant's daughter. The defendant initially stated that the eight-year-old alleged victim and the three females slept together in one bedroom in the only bed in the apartment, while he slept on the couch. Later in the interview with the two officers, defendant stated that he had been seeing a psychiatrist but had stopped seeing him approximately two months before. The defendant went on to explain that the first part of what he told the officers concerning who was present was true, but that the second bedroom had also been furnished with a bed on June 12, 1979, and that he slept in that room with the alleged victim. According to Officer Ryan, the defendant said that he had been drinking and "that he did grab [the alleged victim's] penis and hunch him, with the front of [defendant's] pants open." Defendant, at that time, denied that there was ever any penetration or that defendant had had any kind of contact that evening.

Officer Kretsinger also testified at the hearing. His testimony corroborates Officer Ryan's:

"Later in the interview he [the defendant] said that wasn't the right sleeping arrangement. He said that the three girls did sleep in one of the bedrooms, that he and the boy slept in the other bedroom in a bed. He said that after they were in bed for a while, he said he started hunching on the boy. He was asked to explain this in a little more detail. He said that his pants were on but open from the waist to crouch [sic]. He said that he did reach over and reached inside the boy's pants and touched the boy's penis. He said that the boy's pants did remain on. He said that later he rolled over on top of the boy and began a hunching motion, this lasted for a few minutes and then he realized what he was doing was wrong, so he got off and apologized to the boy. Then he, Mr. Kincaid, left the room, went to the living room and slept on the couch.

Q. During the first part of the interview did he deny to you any sexual contact with the boy?

A. Yes.

Q. Then later he changed his story and admitted it?

A. That's correct.

Q. During the interview was Mr. Kincaid sleepy or drowsy or nodding off?

A. No.

Q. Did he appear abnormal to you in any way?

A. No.

Q. At any time did he vomit or regurgitate or complain of an upset stomach?

A. No."

The defendant testified at the hearing on the motion to suppress that prior to his arrest on July 20, 1979, he took 15 erythromycin capsules to relieve a bronchitis condition.

The defendant also testified that prior to receiving the Haldol injection he was depressed and angry. Afterward, he felt as though he were "high" and sleepy. He said he was unable to remember giving any statement to the police and, though he did not question that it was his signature on the rights-waiver form, he did not remember signing the form.

Dr. John Miller testified on direct examination at the hearing that the only side effect consumption of 15 erythromycin pills would cause would be an upset stomach. Dr. Miller also testified that Haldol is a major tranquilizer designed to reduce anger by blocking adrenalin. Dr. Miller also said that Haldol would improve a person's ability to think because it would tend to calm a person and help a person to think and act more rationally. Dr. Miller also stated that the maximum effect of the drug could be expected to occur between one and six hours after injection. The defendant made the statement herein approximately one hour and 50 minutes after injection.

During cross-examination by defense counsel, Dr. Miller read from the Physician's Desk Reference some of the adverse reactions associated with Haldol, which is also identified by the generic name of holoperidol. These include: "insomnia, restlessness, anxiety, euphoria, agitation, drowsiness, depression, * * * lethargy, headaches, confusion, vertigo, grand mal seizures and cardiovascular effects to the tachycardia, and low blood pressure."

The trial court denied the motion to suppress, stating:

"The question arises only as to this matter of Dr. Miller giving him a tranquilizer at the hospital earlier in order to restrain him. The evidence as I see it is undisputed that the interview in question, the defendant was still able to resist involvement, he was still able to set up defenses, still aware of the charges, still aware of how to avoid and minimizes [sic] the ...

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