THE PEOPLE OF THE STATE OF ILLINOIS, Appellee and Defendant in Error, vs. MARVIN WILLIAMS, Appellant and Plaintiff in Error
Nos. 39515, 39524 cons.
Supreme Court of Illinois
September 23, 1966
October 27, 1966
WILLIAM G. CLARK, Attorney General, of Springfield, and DANIEL P. WARD, State‘s Attorney, of Chicago, (FRED G. LEACH, Assistant Attorney General, and ELMER C. KISSANE, JAMES B. ZAGEL and CARMEN V. SPERANZA, Assistant State‘s Attorneys, of counsel,) for the People.
Mr. JUSTICE HOUSE delivered the opinion of the court:
Marvin Williams was indicted along with Samuel Jones, Johnnie Walker, Robert House, David Sanders and Samuel Lacey in the criminal court of Cook County for the crime
The complaining witness testified that about 10:00 o‘clock P.M. on January 16, 1961, she was returning to her home from church and had gotten off a bus at Douglas and Kedzie. As she was walking along the street, some boys came up behind her and grabbed her around the neck. The boy who grabbed her said he had a knife in her back. She was taken to a basement where one of the boys took her purse and she was told to take off her clothes. She said that all six of the defendants then had sexual relations with her. On cross-examination she stated that four or five of the defendants had sexual relations with her at this time. Three of the boys then took her to a vacant building and had sexual relations with her.
Samuel Jones testified that he grabbed the prosecuting witness around the neck and took her to the basement with the intent of robbing her. Sanders, Lacey and Walker were with him at this time. He took $3 from her purse and gave Walker, Sanders and Lacey each $1. Those three left and Williams and House then arrived. Williams, House and Jones then took her to a vacant building. Jones said he asked to have sexual relations with her and she consented.
The other defendants all admitted that they were at the basement or the vacant building, but they all denied that they had sexual relations with the complaining witness, that they threatened her, that they heard or saw anyone threaten her, or that they saw any of the other defendants have sexual relations with her. A joint confession by Williams, Jones and House was introduced into evidence in which they admitted taking the woman to the empty building and each
The points raised by the petition under the Post-Conviction Hearing Act and by the writ of error are the same. Petitioner‘s two basic arguments are that he was denied adequate assistance of counsel and that the appointment of a single public defender to represent six defendants at their joint trial was an “ineffective appointment.”
Much of petitioner‘s argument centers around defense counsel‘s stipulation that the joint “confession” of Jones, House and Williams could be admitted in evidence. He now argues that he confessed because of threats and promises of leniency, that he was not represented by counsel or advised of his rights when he confessed and that defense counsel stipulated to the confession to exculpate other of the defendants. While he attacks the stipulation from various aspects, the basic complaint seems to be that his counsel should have demanded a preliminary hearing on admissibility.
The record shows that defense counsel stipulated that the confession could be admitted as to the defendants who made the various statements in the confession and further stipulated that no weight be given those statements until the maker had testified. The additional stipulation was obviously made because defense counsel knew the makers of the statements were going to deny making them. When Williams did in fact testify, he denied making any of the incriminating statements in the confession.
In People v. Gray, 33 Ill.2d 349, it was alleged that
The question now is whether petitioner is entitled to a hearing on the voluntariness of the admissions he made in the joint statement. As we have pointed out, the petitioner at the time of his trial in March, 1961, denied all the incriminating admissions of the joint statement stipulated into the record. The first suggestion that he did make these admissions and that they were not made voluntarily came in his petition filed 4 years later on March 11, 1965, under the Post-Conviction Hearing Act.
In People v. Smith, 32 Ill.2d 88, 93, we stated, “A confession obtained by coercion is, of course, inadmissible, and it is the usual rule that where an issue is raised concerning the voluntary nature of a confession the court must make a determination of that issue. However, constitutional claims, like other claims, may be waived. The record clearly shows that defendant‘s counsel stipulated that the confessions might be admitted in evidence without objection. This agreement waived any claim that the confessions were improperly obtained. It is of no significance that the attorney was appointed by the court, for the same rules of procedure apply whether counsel is appointed or privately retained.”
In Fay v. Noia, 372 U.S. 391, 83 S. Ct. 822, 9 L. Ed. 2d 837, the Supreme Court stated, “Although we hold that the jurisdiction of the federal courts on habeas corpus is not affected by procedural defaults incurred by the applicant during the state court proceedings, we recognize a limited discretion in the federal judge to deny relief to an applicant under certain circumstances.” (372 U.S. 391, 438, 83 S. Ct. 822, 848, 9 L. Ed. 2d 837, 868.) The court then announced the “deliberate by-passing” doctrine as follows: “We therefore hold that the federal habeas corpus judge may in his discretion deny relief to an applicant who has deliberately by-passed the orderly procedure of the state courts and in so doing has forfeited his state court remedies. But we wish to make very clear that this grant of discretion is not to be interpreted as a permission to introduce legal fictions into federal habeas corpus. The classic definition of waiver enunciated in Johnson v. Zerbst, 304 U.S. 458, 464, 82 L. Ed. 1461, 1466, 58 S. Ct. 1019, 146 A.L.R. 357—‘an intentional relinquishment or abandonment of a known right or privilege‘—furnishes the controlling standard. If a habeas applicant, after consultation with competent counsel or otherwise, understandingly and knowingly forewent the privilege of seeking to vindicate his federal claims in the state courts, whether for strategic, tactical, or any other reasons that can fairly be described as the deliberate
The issue of whether a constitutional question could be raised after a procedural default was again presented in Henry v. State of Mississippi, 379 U.S. 443, 85 S. Ct. 564, 13 L. Ed. 2d 408. In that case the defendant sought review in the Mississippi Supreme Court of whether evidence introduced at his trial had been illegally obtained. The Mississippi court held that failure of his counsel to object at the time the evidence was offered precluded review. The Supreme Court vacated the judgment of conviction and remanded for a hearing on the question whether the petitioner is to be deemed to have knowingly waived decision of his Federal claim when timely objection was not made to the admission of the illegally seized evidence.
In the Henry case it was not clear whether defense counsel had made an honest mistake in failing to make a contemporaneous objection or whether it was done as a matter of trial strategy, and the court remanded the cause for hearing on this point. In the course of the opinion the court did
Nelson v. California, (9th cir.) 346 F.2d 73 (cert. denied 86 S. Ct. 452) involved a Federal district court order denying a petition for a writ of habeas corpus. As in the Henry case, Nelson‘s counsel in his State trial failed to make contemporaneous objection to the introduction of allegedly illegally obtained evidence. In this case, however, it was clear that defense counsel had failed to object as a part of his trial strategy rather than as an honest mistake. It was also clear that there was prior consultation by the attorney with the petitioner and that petitioner did not agree with counsel‘s strategy. In affirming the district court, the Court of Appeals stated, “We think that Henry limits Fay v. Noia at least to this extent—that it stands for the proposition that counsel‘s decision, although made ‘without prior consultation with an accused,’ to by-pass the contemporaneous-objection rule as part of trial strategy, will nevertheless ‘preclude the accused from asserting constitutional claims’ (id. at 451, 85 S. Ct. at 569). Thus the broad language in Fay, to the effect that the decision (there, a decision not to appeal) must be the choice of the petitioner, and that a choice made by counsel, not participated in by petitioner, does not automatically bar relief, does not here apply.” (346 F.2d 73, 81.) The court also held that the fact that there was prior consultation with the accused and the accused disagreed with his counsel‘s strategy did not make a legal difference.
The court in the Nelson case also pointed out in a foot-
The case of Brookhart v. Janis, 384 U.S. 1, 86 S. Ct. 1245, 16 L. Ed. 2d 314, while not expressly recognizing the distinction, does lend support to the principle that a waiver by counsel of a Federally guaranteed right as a matter of trial strategy will be binding on an accused, while waiver of a Federally guaranteed right which is outside the ambit of trial strategy will not bind the accused unless the accused participates in the waiver. In Brookhart the court stated, “Our question therefore narrows down to whether counsel has power to enter a plea which is inconsistent with his client‘s expressed desire and thereby waive his client‘s constitutional right to plead not guilty and have a trial in which he can confront and cross-examine the witnesses against him. We hold that the constitutional rights of a defendant cannot be waived by his counsel under such circumstances. It is true, as stated in Henry v. Mississippi, 379
Applying the foregoing principles to this case we believe that a hearing under the Post-Conviction Hearing Act on the voluntariness of the confession was properly denied. (But cf. Mitchell v. Stephens, (8th cir.) 353 F.2d 129.) Unlike the Henry case there is no doubt that there was a waiver by counsel and not an honest mistake in failing to request a preliminary hearing on the admissibility of the confession. His stipulation shows that he intentionally by-passed a hearing on the voluntariness of the statement because he was prepared to show that his clients had not made the damaging admissions in the statement.
We also believe that the failure to question the voluntariness of the confession was a matter of trial strategy. Petitioner, of course, had the right to deny that he made the incriminating statements and also raise the question of the voluntariness of the statements. (People v. Norfleet, 29 Ill.2d 287.) It must be acknowledged, nevertheless, that there is an obvious inconsistency when an accused states that he did not make the incriminating statements and that he did make them but they were coerced.
In Lee v. Mississippi, 332 U.S. 742, 68 S. Ct. 300, 92 L. Ed. 330, the Supreme Court held that an accused who denied making a confession was not precluded from also asserting at the trial that the confession was involuntary. In
The strategy of defense counsel‘s stipulation is apparent. Petitioner either made these incriminating statements or he did not. In his trial he testified under oath that he did not make them. Now he swears under oath in his affidavit that he made the statements, but he did so because a police officer said he would get a lighter sentence. His testimony at the trial and his affidavit cannot both be true. While an accused has the legal right to deny the statements attributed to him and also admit making them but under duress, as a practical matter, it would be most difficult to convince the trial judge of either position when both are being advanced.
We feel that the reasons stated in Nelson v. California for holding that an accused is bound by his counsel‘s decision on a matter of trial strategy in the absence of incompetence or bad faith by counsel bear repeating. “Our reasons are that only counsel is competent to make such a decision, that counsel must be the manager of the law-suit, that if such decisions are to be made by the defendant, he is likely to do himself more harm than good, and that a contrary rule would seriously impair the constitutional guaranty of the right to counsel. (See Rhay v. Browder, 9 Cir., 1965, 342 F.2d 345.) One of the surest ways for counsel to lose
Aside from the issue of voluntariness, the petition under the Post-Conviction Hearing Act raises one other point concerning the admission of the confession. It is alleged that petitioner was not advised prior to questioning by the police and State‘s Attorney that he had a right to remain silent and that he had a right to the presence of an attorney. Petitioner urges that we reconsider and overrule our holding in People v. Hartgraves, 31 Ill.2d 375, 380, where we stated, “We do not, however, read the Escobedo case as requiring the rejection of a voluntary confession because the State did not affirmatively caution the accused of his right to have an attorney and his right to remain silent before his admissions of guilt.” See also People v. Kees, 32 Ill.2d 299.
After this case had been submitted for decision, the Supreme Court ruled in Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 1612, 16 L. Ed. 2d 694, 706, “Prior to any questioning, the person must be warned that he has a right to remain silent, that any statement he does make may be used as evidence against him, and that he has a right to the presence of an attorney, either retained or appointed.” This, of course, overrules our view expressed in People v. Hartgraves. In Johnson v. New Jersey, 384 U.S. 719, 86 S. Ct. 1772, the court ruled, however, that the holding in Escobedo v. Illinois, 378 U.S. 478, 84 S. Ct. 1758, 12 L. Ed. 2d 977, is available only to persons whose trials began after June 22, 1964, and that the guidelines laid down in Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694, are available only to persons whose trials had not begun as of June 13, 1966. For the reasons stated by the Supreme Court
Petitioner also asserts that there were conflicting interests between him and his co-defendants which foreclosed his counsel from giving effective assistance to him. To support this assertion he points out that Samuel Jones testified he grabbed the complaining witness around the neck, hit her in the face, had sexual intercourse with her and named him as one of the persons present at the time of the rape. He now contends defense counsel should have, but did not, cross-examine and impeach this witness.
An examination of Jones‘s testimony shows that it did not incriminate petitioner as he now contends, but on the contrary, it tended to exculpate him. Jones said he did not see any of the other defendants have sexual intercourse with the woman, that he did not see Williams with a finger nail file or other weapon and that he did not hear Williams threaten her. He did say he met Williams in the alley outside the basement and that he, Williams and House went to the vacant building. All of this testimony is exactly the same as Williams‘s testimony. Since there was no conflict between Jones‘s testimony and petitioner‘s testimony, there was no reason to cross-examine or impeach Jones.
It is argued that counsel did not object to damaging inadmissible evidence. On cross-examination Jones testified that Williams did not threaten the woman. He was then asked if he had not in his confession stated Williams did threaten her. He admitted making that statement in his confession, but again denied that Williams had threatened her. Counsel did object and stated that the prosecutor was arguing with the witness and that he had only impeached the witness. The trial judge overruled the objection as to Jones. We think this ruling by the trial judge shows that the evi-
It is finally argued that appointing a single attorney to represent all six defendants at their joint trial denied petitioner effective assistance of counsel. The petitioner and his co-defendants did not present conflicting defenses. Each testified to his own involvement and the version given by each defendant corroborated the version given by the others. There is nothing in this record to suggest that there would have been a different result if there had been six attorneys appointed to represent the defendants in this trial or in six different trials. We find no error in appointing one counsel to represent all the defendants under the facts of this case. People v. Hall, 27 Ill.2d 501.
The judgment of conviction and the judgment dismissing the petition for a post-conviction hearing are both affirmed.
Judgments affirmed.
Mr. JUSTICE SCHAEFER, dissenting:
I concur in the opinion of the court insofar as it holds that the principles announced in Escobedo v. Illinois, 378 U.S. 478, 12 L. Ed. 2d 977 and Miranda v. Arizona, 384 U.S. 436, 16 L. Ed. 2d 694 were not applicable to the defendant‘s trial. I dissent because I think that the allegations of the defendant‘s post-conviction petition concerning his arrest, detention, and promises and threats allegedly made to him, entitled him to a hearing as to the voluntariness of the confession that was admitted in evidence against him. Davis v. North Carolina, 384 U.S. 737, 16 L. Ed. 2d 895.
The opinion of the court holds that the question of the voluntariness of the confession obtained by an assistant State‘s Attorney from this 16-year-old defendant was forever waived by the “trial strategy” of the public defender, who stipulated to the admission of the confession in evi-
The court apparently rests its holding upon Nelson v. California, (9th cir. 1965) 346 F.2d 73, (cert. denied 384 U.S. 964, 15 L. Ed. 2d 367.) In that case the defendant‘s attorney did not make a contemporaneous objection to the admission of evidence which was allegedly the product of an illegal search. In my opinion the Nelson case has no bearing upon the issue here presented. The right involved in that case is not the right of the defendant involved in this case. The voluntariness of a confession goes to the reliability of the conviction, whereas the product of an illegal search is excluded in order to deter police misconduct. (See Note, 80 Harvard Law Review, 422, 435.) Moreover, the potential tactical advantage in refraining from moving to suppress illegally obtained evidence is clear, because if the motion is made the prosecution may, at the hearing upon the motion, offer evidence to show probable cause which would otherwise not be admissible.
The considerations that moved me to dissent from the opinion of the court in People v. Richardson, 32 Ill.2d 472, are also present in this case.