*1 (No. 38479. Er Defendant of the State of
ror, Kees, in Error. vs. Lu cious Plaintiff
Opinion March filed J., Klingbiel, C.J., J., dissenting. Schaefer, Solfisburg, Brennan, T. of Chicago, appointed by Jerome court, for plaintiff error. Clark, General,
Wiliam G. Attorney Springfield, Ward, and Daniel (Fred P. State’s Attorney, Chicago, George Attorneys G. Leach Assistant Kenney, W. General, Moran, Kissane and Matthew and Elmer C. J. Assistant State’s Attorneys, counsel,) People. *2 Daily the court: Mr. the of delivered opinion Justice After in criminal court of Cook a bench the Kees, of defendant, Lucious was found guilty County, for a term armed to the and sentenced robbery penitentiary error, under of of two five this writ years. By granted newa and remandment for Rule he seeks reversal 65— and trial on of trial court rulings him of due of his counsel deprived incоmpetency appointed of law. process
At A.M. on approximately Friday, August 4:00 alone a sta- Brooks was at working W. gasoline John attending tion located in the of he city While was Chicago. “Lucious,” customer, to a a man whom he then knew only defendant, but whom he identified as walked subsequently the two and in a conversation with up engaged station “Lucious,” it in the on occa- men. had been station appears, and sions or soda thfe to purchasе cigarettes pop past of was known Brooks to extent. After a period in the about five minutes customer who originally that, station minutes after accord- and several departed Brooks, “I am you defendant to stick said: ing going and revolver. After Brooks with drew a had up” complied coat commands to his into defendant’s pocket, put money immediately the latter Police fled were taking $40 $45. Davis and summoned Brooks was officers and questioned statеment, after- And no then or signed Hill. while wards, it took of what was *3 before, but denied the offense he had and testified that been with friends at the time of the drinking robbery. Further, confession, he admitted that he had signed which been introduced into evidencе People, Miller, but stated he had been beaten that the false, fession that he it signed to forestall rebuttal, further mistreatment. Miller On denied that he or other any had exercised person coercion physical any kind. are We constrained add that the cross-examination of defendant his weakened claim. greatly charge confession was extracted means has been police brutality abandoned and is not pursued Rather, in this court. it is first upon urgеd basis of the rule, McNabb (see: McNabb v. States, United U.S. 318 ed. 332, States, L. v. 819; Mallory United U.S. 449, 87 354 1 L. ed. that the 1479,) 2d confession was in inadmissible evidence because was obtained while defendant was being detained. is our Although illegally opinion evidence 302
hеre does not de show and unreasonable unnecessary as to lay have made defendant’s detention within illegal rule, Jackson, McNabb v. Ill.2d it is (cf. People 274,) 23 enough the rule is one of Federal say procedure which' this court has consistently refused adopt, (People Hall, v. Jackson, Ill. People v. 615; 274; 413 23 v. 26 Ill.2d Stacey, People Melquist, 25 Reader, which, 210,) Gallegos Nebraska, U.S. L. ed. has 55, 63-64, 93-94, 342 held not to extend to State expressly prosecutions of the fourteenth аmendment. find requirement We in defendant’s or in his arduous nothing arguments, sug has been overruled gestion Gallegos by implication, cause us to now the rule or to conclude that due adopt its process requires adoption. Escobedo v.
Relying upon U.S. 478, L. ed. 2d it is next contended that the confession was inadmissible because it was obtained when defendant was without the benefit of counsel. Stated legal another way, defendant sees Escobedo as that a confession other holding wise is not voluntary admissible unless the accused either made, had the benefit of counsel when it was or had made waiver of counsel. intelligent Escobedo has Concededly, constructions, provoked to be сonflicting (as resolved yet States United some of which Supreme Court,) bemay taken as supporting State v. position. (E.g., Neely,-Ore.-, Parisi, P.2d 557; 2d Commonwealth N.Y.S. Pa. Coyle, court, however, A. 2d This Hart People v. graves, has itself with those aligned cоurts which have construed Escobedo to be limited to the pe case, culiar facts of the *4 and have rejected as promulgat rule that a ing confession not sweeping be received may if made counsel, acсused without or unless the right to counsel has been waived. intelligently (See: People v. State, Browne v. Wis.2d N.Y.S. 2d Agar, P.2d Cox, N.M. N.W.2d Pece For this A. 2d State, Md. Davis reason, here neither nor permit because the facts require control, confession сonclude defendant’s Escobedo to we was not inadmissible on such ground. Brooks, the complain cross-examination
During witness, furnished defense counsel and was ing requested by the the written made by with prosecution Davis and Hill. its then counsel Uрon receipt inquired Brooks if he had told the officers that not investigating two men had denied witness committed robbery, had, that he he that there were had said only explaining two men at case station. after Subsequently, People’s closed, defendant moved to continue the for one day order he could Davis Hill as wit subpoena nesses. while im And counsel to stated his purpose witnesses, peach that he conceded not talked to the officers аnd their did know what motion, be. trial court denied the his belief that counsel had not indicating been diligent, counsel, defense whereupon reading report, from made an offer of that if Hill called Davis and were proof witnesses, they wоuld them he testify Brooks told short, had been robbed two men. In the contradiction which defendant establish two witnesses sought obvious in their written It is now con patently report. tended that the refusal grant continuance operated defendant of his constitutional deprive right compel Const., attendance of at witnesses his trial. See: Ill. II, art. sec.
It has long established that the aof granting tinuance trial is a during matter of rest- purely discretion court, with the trial ing its exercise nоt be will disturbed on review unless there has been manifest abuse *5 Echeles,
of discretion. States v. 222 F.2d (United (7th cir.) v. Ill. Rev. Stat. 153; Ill.2d People McCreary, abuse We find no chap. 38, pars. (f).) 4(e) 114— case, "nor, circumstances, of discretion in do this under the we believе there was any infringement upon constitutional Not defendant unaware of was right. be, what the of the witnesses would testimony (cf. People Robinson, v. that had a but would 162,) appear use been made of the proper written the need report the officers to calling establish the contradiction purported Furthermore, would never have arisen. this a bench was the trial court in fact informed appears fully of the between the of Brooks and inconsistency testimony officers, of the and thus in a to test report position of the witness on such credibility basis. (Cf. People Carter, Ill.2d No contention is 413.) made the proof doubt, does not establish a reasonable it is guilt beyond difficult to see hоw the of Davis Hill have other result. produced any is this so since Particularly defendant’s confession stated he had committed the alone, and since defendant conceded that Brooks had known him before the identifi robbery, making positive cation possible.
For his final contention defendant asserts that the fail ure of his counsel to utilize the written properly or secure the attendance of diligently Davis and Hill as wit nesses was which him incompetence of due deprived process of law. are however, We that such prepared say, -omissions reduced the trial to a farce or rendered defend ant’s so ineffective as to representation offend the require ment of due Turner, process. Ill.2d (Cf. Hall, more, is re What 501.) gain versal on such it must also that the accused appear substantially of coun prejudiced by incompetency sel, and that a different outcome would have re probably Palmer, sulted. Dean, (People indicated, derelictions alleged have As we defend substantially have prejudiced could not of counsel trial. of the the outcome ant, affected seriously or is court County of Cook сriminal The judgment affirmed.
Judgment affirmed. Mr. dissenting: Schaefer Justice believe it is necessary To find the defendant guilty *6 to the where he was known that he went to a station filling attendant, the and a customer in a attendant engaged then, after the сusto- for about five minutes and versation course, left, It of the attendant. is mer had held possible, up The so, it likely. that he did but does not seem very improb- attendant, em- Brooks, the station able told story by filling to the effect of the trial court’s refusal phasizes prejudicial the that that by defendant permit impeach story showing the Brooks told investi- after immediately that been officers he had held not one by gating police up man, by but two. con
The defendant seems to have been between caught the trial court theories tradictory adopted by trial court felt that of this court. The majority apparently been counsel had not because diligent the defendant’s obtain the statement until the did not witness impeaching But our had testified. under decisions defendant the statement until the taken not entitled to witness had Neiman, the stand and testified. People Edmunds, 538; People Wolff, 19 Moses, Ill.2d 318; People 84.
It is clear that the of court doеs this not majority adopt court, the trial but that it of is difficult theory beyond It know what out upon proceeds. just points counsel did not what testi- know be, of of the officers would but the significance mony police Robinson, lack of is not knowledge apparent. I 22 not in clearly is do know point. simply what is meant the statement majority opinion, “* * * it use made appear proper of the written the need the officers calling establish the contradiction would never have purported arisen.” The witness who had denied being impeached that he had stated to he had investigating been held two men. could not be com up Impeachment without the officers to whom the testimony pleted statеment was made. contradictory alleged In error to prejudicial the de- my opinion deny fendant the of the impeach opportunity occurrence witness offered prosecution. J., join C.J.,
Klingbiel, Solfisburg, in this dis- sent.
(No. 38488. Defendant in Er- the State rоr, vs. E. Plaintiff Error. Olmstead, Dale
Opinion March filed notes appears filed a written said later report. a in the of the same Brooks had evening day, Early Miller, with Russell conversation detective telephone area, unit for to the who officer assigned time but some the name also known defendant Thereafter, P.M., Miller around of “Lucious.” 8:15 tavern, although other officers located defendant a to ac- he he of the crime any agreed denied knowlеdge There, station. he was ques- the officers to a company police and, P.M., was se- tioned for few minutes at about 9:45 men as the person Brooks from a six lected by lineup this, defendant robbery. Following who had committed in a ten minutes and then for about placed questioned Saturday, cell At P.M. the next evening, overnight. 6:00 Miller, defendant was August again questioned by P.M., at such whose tour had started at duty 4:00 confession, time he defendant a written even though signed that the “will warned beforehand confession expressly be used in court the next you.” On against morning Sunday, he was taken before a day, August 19, magistrate for a hearing. preliminary At the trial defendant knew he acknowledged Brooks and around the station gasoline