United States of America Ex Rel. James v. Placek v. State of Illinois
546 F.2d 1298
7th Cir.
1976
Check Treatment

BAUER, Circuit Judge.

Petitioner-appellant Placek, who con- in a victed theft bench trial before an court, brings Illinois appeal this from the petition district court’s dismissal his for a habeas corpus writ of without an evidentia- hearing. argues He ry on appeal that his or, petition granted should be in the alter- native, remanded for an evidentiary hear- ing. (1) that obtain- contends II. arrest made without a war- following an

ed Placek next argues that the Miranda illegally cause was used in probable rant warnings at the time he was taken against that statements used (2) custody into were constitutionally deficient *3 been suppressed have at trial should him they apprise because failed to him of his given proper not Miranda he was because to the right appointment immediate and evi- (3) that his confession warnings, counsel. Placek was advised that he had to a of his pursuant search seized dence silent; right to remain anything that he illegally against him were used apartment him; against could be used that said “if he leniency were promises of trial because at attorney present, wanted an he could have rendering his confession invol- to him one”; one, and that “if he could not afford gave vitiating the consent untary and attorney appointed would be through an search, (4) that he was denied his for argument for him.” Placek’s that right to a constitutional warnings these Miranda were constitution confession, (5) that of his they ally specifi deficient did not right his constitutional to a denied he was that he advise him had cally right trial. speedy appointment of immediate counsel has been addressed previously by this Court in Unit I. Adams, 357, v. ed States 361-362 believe, vig and Placek does not We 1973). (7th In Cir. Adams we relied on v. orously appeal, contest on that Stone Lamia, v. (2d United States F.2d 373 Powell, 96 S.Ct. 428 U.S. denied, 400 Cir.), 91 S.Ct. (1976), bars federal court col L.Ed.2d (1970), where similar warn claim that evidence review his lateral to “effectively were said ings warned through a incident to an search obtained need not make statement [Placek] illegally arrest was used invalid allegedly advice he had the of an attorney.” until Id. trial. him at against We find no substantial at 377. distinction Placek, petitioners, one of the like Stone warnings between and the error on the use of constitutional predicated warnings found constitutionally adequate in that was the fruit of a search evidence Lamia. Adams and allegedly an invalid arrest. Id. to incident The cases cited Placek in support of at 96 S.Ct. at 3039-40. The state argument are easily distinguishable. rejected courts each Pla- appellate ex Twomey, United States rel. Williams v. claim after a full and cek’s constitutional (7th 1972), F.2d 1248 Cir. United States Thus, the merits. we think fair Garcia, (9th v. 431 F.2d 134 that Placek’s claim is barred plain States, Coyote United 380 F.2d 305 that, holding Stone Cir.), cert. provided oppor- has an “where the State (1967), L.Ed.2d 484 each involved warn tunity litigation full and fair of a for ings internally inconsistent claim, prison- Amendment a state Fourth they right advised the accused of the may granted not be federal habeas er attorney present during have an ques ground that evidence corpus relief tioning, attorney but also indicated an search or in an unconstitutional obtained appointed not be was introduced at his trial.” Id. could until a later time.2 seizure Here, contrast, the warnings given at Pla- appointed you you warnings given for if in Lamia were: wish.” 429 F.2d at 1. The 375 n.l. Any- right to remain silent. “You have the you thing you say against can be used right 2. Williams was advised that he had “the lawyer attorney have the to talk to a answering any court. You an to talk to before you any questions questions attorney present before we ask for advice and to have an with you during questioning. you during questioning, you him with and to have . . whether lawyer, you way one will be hire one or not. If cannot afford can afford to We have no in one purport away promises take leniency cek did were never made rights announced another. sentence Placek. See United States ex rel. Placek Illinois, (N.D. No. 75 C at 4 Ill. Mar.

III. 3, 1975) (judgment order). short, In apart counsel, from the assertions of his there is that he wrong Placek next contends nothing in the record support fully convicted on basis an involun promises contention that of leniency tary pursu Were confession and seized made to him. illegal search. He says ant leniency were made to him Recognizing the absence of evidence in the voluntariness of the vitiated statements showing the record that his confession was against him as used well involuntary, Placek argues that he is enti- *4 gave police consent he officers to search his an evidentiary tled to hearing on the issue for apartment incriminating other evidence. because he was denied his constitutional Swenson, F.2d 625 Hunter right to one at trial. Denno, Jackson v. 863, 92 S.Ct. U.S. 12 L.Ed.2d 908 (1972). Though admitting L.Ed.2d 107 Furthermore, (1963). because neither the first possibili it was who raised the that state trial court nor the district court below leniency exchange information, in for ty of any explicit ever made finding prom- that that, in his brief after his asserts leniency ises of were him, not made to crime, scene the apprehension at the of both Placek claims that he is also entitled to an arresting manager and the officer of the evidentiary hearing on the issue under by his the hotel victimized theft “made Sain, Townsend v. . . that if he cooperated 9 L.Ed.2d 770 gave helped statement and in recov practical matter, As a the two bases items, ering they other would intercede for for an by asserted Pla prosecuted, and see that if would [him] [he] collapse cek one into because Jackson re very leniently.” treated be quires the “reliable and clear-cut determi trial, Placek raised this claim at his bench the confession, nation of voluntariness of a in overruling and the trial court remarked including the resolution of disputed facts objection to the admission of Placek’s the upon which the may voluntariness issue de they that statements were “clear- contested pend,” that would obviate the need for a voluntary.” Moreover, ly on cross-examina- hearing. Townsend 378 U.S. at counsel, by arresting Placek’s the offi- tion turn, We therefore, S.Ct. at 1788. to Pla explicitly any denied that such promises cer cek’s Jackson claim. leniency were ever made at the of of scene or crime at the stationhouse. Placek IV. never on the stand testify himself went to contrary. The During trial, district court below Placek’s bench arresting concluded that Placek’s also statements officer testified direct examination as to voluntary, although we do incriminating not read an statement that Placek had embodying court’s order as made at the scene the crime after he had furnishing you attorney, with but one will get lawyer that will ame if I am wish, appointed you, you be for if if and when Though admitting broke.” F.2d you go (empha- court.” to n.l above, Coyote testified that he was also added). sis appointed told that he could have a court law- was Garcia told that she could have an attor- yer “only Albuquer- when he came ney present during questioning, but also that que.” Upholding Id. at 308. the trial court’s attorney appointed rep- she could “have an contrary, finding to the the Tenth Circuit ruled appear you you resent when first before the Coyote adequately had been advised of his or U.S. Commissioner the Court.” 431 F.2d at assistance counsel. Id. at SOS- added). (emphasis OS. Coyote “1 was can informed talk to a lawyer anyone saying anything, or before just “Now here we have warnings. Pla- a bench Miranda proper been me, know, objected you without sound- immediately and believe counsel cek’s claiming your I testimony, ing sycophantic, know that Honor admissibility of many cases involuntary was be- tried before this time and statement has law is what the by promises induced can been knows it had cause competent evidence the incom- arresting officer and from leniency hotel victimized evidence. manager petent court, noting that it had The this, theft. only thing Judge, is I The the statement was no heard accept that the Court can think not state- objection. Pla- involuntary, overruled confessions unless they or are ments for a then moved cek’s counsel and once voluntary be there is shown of the statement. the voluntariness these statements are indication any responded: it then I think is incumbent involuntary, clearly “I think whether or statement] to decide [the on the Court I don’t think that voluntary. are, question because it is a they fact way encouraged any any or coerced law, jury case, even in a officer. I don’t think way by police whether or not they are Court decides bearing for the motion at all there involuntary.” voluntary *5 for the motion at this any grounds or requested argument court then from The time. counsel. opposing prosecutor The contend- overruled, objection the The will be hearing the motion for a ed that was not denied.” motion timely under Illinois law because Placek testimony proceeded, Pla- The officer’s and prior to trial knew the statements reflect asked that record counsel cek’s him, against be used would but made no objection any testimony continuing his hearing. for a motion Placek’s counsel ar- made to the officer relating to statements that the motion gued for a could be by Placek. prior time any judgment. at raised cross-examination, no new Placek’s counsel noted that had come On arresting subsequent to the time light to whether the officer when Placek as inquired requested a hearing. of the hotel had told have Placek’s representative should any or on him if he stated that he they go easy would counsel then “would offer had limine to proof locate items that show that there are where to some told them officer for a voluntariness previous grounds thefts. The stolen in been [the] any promises were statements.” The court of these then asked explicitly denied inquired as to whether “we reserve this and take also whether made. Counsel [could] leniency on Placek’s witness?” Placek’s replied: conditioned another counsel promises “Fine, objection. apartment to search his I have no This matter can consent giving time, any Thereup- the stationhouse. at I think.” later at be resolved were made on, called, any denied that such a new witness was and the record the officer Again silent as to made. before us is whether further were were held discussions between the counsel cross-examination, Pla- Following that concerning the court and Placek’s motions renewed his motions to strike counsel cek’s testimony sup- and to hold a to strike testimony sup- to hold a and officer’s hearing. Placek did not take the pression the voluntariness of hearing on pression trial. stand at engaged He the court statements. Placek’s argument counsel in concern- Placek contends that the trial court vio- opposing and process rights by denying of his motions. his due supportive law lated ing case evidentiary hearing cited for an on the admitting that the cases he motion Though trials, argued counsel issue raised at trial. He re- jury voluntariness involved Denno, setting on Jackson in a bench lies apposite were they (1963), 12 L.Ed.2d 908 where the S.Ct. well: as

130b Although the that a criminal defendant Court fault announced found with the specific procedure Jackson, at issue in has a clear also made that it was not questioning in the stage at some “constitutional propriety procedures the constitutional object to the use of proceedings [an “the judge whereby hears the confession involuntary] and to allegedly evidence, himself resolves con- hearing and a reliable deter- fair flicts, gives his own answer voluntariness, issue of on the mination issue, rejecting coercion confessions he truth uninfluenced determination involuntary admitting only deems those at 377- confession.” Id. falsity or voluntary.” n.8, he believes Id. 1780-1781. at 1781 n.8. The court noted further: Court found constitution- In Jackson the “Whether judge, another procedure whereby dis- ally inadequate or judge, jury, another but not the con- going to a confession’s issues of facts puted jury, victing fully resolves issue of presented solely to a were voluntariness not a matter of concern jurors were to con- jury. The instructed To this agree here. extent we deciding defend- the confession sider are that the States free to allocate func- they guilt or innocence if found ant’s jury tions between as they see voluntary determining after the confession n.19, fit.” Id. at 391 84 S.Ct. at 1789 n.19. bearing facts on that issue. disputed Nothing Jackson, however, speaks to used, verdicts special Because no presented question whether, in a here — the confession’s jury’s voluntari- opposed as jury trial, bench to a ness, findings underly- well as judicial requisite determination the vol- thereon, merge into ing bearing facts would untariness issue can be the course general acquitting convicting or verdict rather of the trial than at a hear- defendant. during before trial ing held a trial recess. “may that a find jury The Court reasoned *6 courts, Two lower though, posi- have taken policy difficult to understand the forbid- it of supportive tions Placek’s contention that true, coerced, a but con- ding upon reliance entitled to a separate he was fession,” pertaining that “matters and at the time hearing challenged the ad- guilt will jury’s the defendant’s infect the missibility of his allegedly involuntary voluntariness, finding bearing upon of fact In statements. United ex Spears States rel. upon as well as its conclusion that issue Rundle, F.Supp. v. 268 (E.D. 1967), 691 Pa. 382-83, at 84 itself.” Id. S.Ct. at 1783-84. grounds, other aff’d on (3d 405 1037 Thus, jury “the evidence the 1969), because and United ex rel. States Owens Cavell, irrelevant inevitably injects impermissi- and 254 F.Supp. (M.D. v. 154 Pa. of the courts ble considerations truthfulness the district ordered new evidentiary because a hearings separate the assessment confession into of voluntari- determination ness,” of the voluntariness of the stated that “it be the defendants’ cannot con- had not fessions been . that the at their jury reliably assumed . . bench Both courts trials. that due against proc- reasoned the facts the Id. at found accused.” separate required' a ess to deter- 386-87, at 1786. 84 The Court held the mine voluntariness issue even for a procedure that the New York fell at issue because judges bench trial once the had require- satisfying process short of due guilt heard evidence of “impossible” it was procedures fully ment used “be to determine for them the voluntariness a reliable adequate to insure and clear-cut objectively reliably, issue as Jackson determination of 695-96; 268 requires. F.Supp. at 254 confession, including the of dis- resolution at F.Supp. 155. which puted upon facts the voluntariness 391, may depend.” Id. at at conclusion, issue 84 S.Ct. reaching In this both courts heavily on relied v. Hutcherson Hutchinson, 51, 227, 351 F.2d 748 State v. 260 Md. 271 A.2d States, U.S.App.D.C. 641, Brown, appeals (1970); People held that the court of v. N.Y.2d (1965), where 190, 153, 168, of Jackson had standards 247 N.E.2d process 299 N.Y.S.2d the due suppression ; Commonwealth, during pretrial 216 Va. (1969) Akers been violated court, 28, “the trial in admit- (1975); cf. State v. 216 S.E.2d of its against the claim ting confession Jarvi, Or.App. 474 P.2d involuntariness, inquiry was influenced (1970). at 752. at 351 F.2d truth.” Id.

into its cursory perusal of Even a the Court’s judge that the trial had revealed The record holding in Jackson reveals its opinion the defendant detail questioned himself largely on its premised lay concern that truth of his confession. as unable jurors considera- was thus convinced not court Hutcherson solely to going the voluntariness tions the trial court’s factual affecting from matters relia- truth, by the confession’s influenced proof bility guilt defendant’s or applied that the trial court had also but However, judge, innocence. a trial unlike a legal took standard —one “which incorrect by learning experience juror, is trained probable the circumstances of account into segregate bearing on a confes- con- determining the falsity” truth —in bearing voluntariness from evidence sion’s Id. at 351 F.2d voluntariness. fession’s culpa- reliability and the defendant’s on its Richmond, Rogers quoting Indeed, Placek’s counsel admitted to bility. 543-44, trial, “your judge Honor is the law can separate knows what of the record on which the state Given competent incompetent evidence from the premised, we doubt Hutcherson is entire system justice Our evidence.” and Owens courts’ hold- Spears supports predicated ability appel- of trial and be ings presumed a trial must judges precisely late to do that. the voluntariness issue to determine unable hold, as To did the Spears and reliably whenever he has objectively and courts, that the reliability Owens of a trial evidence of a defendant’s heard previously judge’s voluntariness determination is inev assuming Even Hutcherson’s guilt. itably compromised whenever has conclusion, we reasoning are compels guilt ruling evidence of before heard indulge in such a presump- not inclined indulge in presumption is to Rather, issue con prefer this Circuit. tion in that, to the law absent a clear trary show those courts that have held that views *7 ing substantial a prejudice, bench trial requirement of Jack- separate-hearing presumed is judge only have considered in bench trial applicability no son has 317, and admissible in Fultz, Ill.App.3d relevant evidence reach setting. People v. 32 288, (1st 1975); ing findings.3 previ- 300-03 Dist. As this Court has 336 N.E.2d Co., denied, 946, 2019, Mortgage 507 395 v. Allstate U.S. 89 S.Ct. 23 3. United States L.Ed.2d denied, 492, (7th Miles, 65, (1969); Cir. cert. 421 F.2d 494 States v. 401 F.2d 464 United 999, 2396, (1975); 1968). (7th 95 S.Ct. 44 L.Ed.2d 666 U.S. 67-68 Cir. Penick, 1105, 1108 v. 496 F.2d United States deeply the law rule embedded in This is denied, 897, (7th Cir.), U.S. 95 419 S.Ct. cert. E.g., as well. United States v. Circuits other (1974); 177, 141 United States v. L.Ed.2d 42 772, Weldon, (2d 1967); 774 Unit 384 F.2d Cir. Greathouse, 805, (7th 1973); 807 484 F.2d Cir. 420, Smith, (4th 422 n.2 v. 390 F.2d ed States Fox, 733, (7th F.2d 734 States v. 437 United Dillon, 1968); v. States 436 F.2d United 1011, 2198, Cir. denied, Cir.), 402 U.S. 91 S.Ct. cert. 1971); 1093, (5th States v. 1095 Cir. United (1971); v. 29 434 United States Stan L.Ed.2d 222, (6th McCarthy, 1972); 224 F.2d Cir. 514, 470 (7th Cir.), ley, cert. de 516-17 411 F.2d States, 831, (8th 432, F.2d 839 959, 137 nied, Fotie v. United 90 24 L.Ed.2d 423 396 U.S. S.Ct. States, 1943); Singleton Wolff, v. 413, United 381 F.2d (1969); Cir. States v. 409 F.2d United denied, 1024, denied, 858, 1, (9th Cir.), 389 U.S. Cir.), 88 (7th 396 90 cert. cert. U.S. 4 416 (1967); 601, 124, (1969); 673 Havelock v. 19 L.Ed.2d United States 24 L.Ed.2d 108 S.Ct. S.Ct. 987, States, (10th Cir.), 124, (7th Cir.), Menk, 991 427 F.2d 127 v. F.2d cert. United 406

1305 noted, Surely comes the at ously considerations comity “[m]uch entitle in a bench trial judge of a would be tention experienced learned and state court judges jury United in trial.” States inadmissible to no less deference. Plaeek has made no Greathouse, 805, (7th 484 807 F.2d Cir. v. showing rights that his prejudiced by trial, presume 1973). a bench we In judge’s trial contemporaneous consider- purpose for a limited evidence admitted guilt ation of evidence of along with evi- proper perspective by considered in bearing dence the voluntariness of his Oliver, United v. 363 judge. trial States confession, we will presume Cir.), denied, 15, (7th cert. 385 F.2d 19 U.S. reliability trial judge’s voluntari- 216, (1966). ness proce- undermined Moreover, been initially when evidence has in this employed dure case. later received and excluded as inadmissible Plaeek received a at trial trial, in a bench assume trial permitted in which he was object to the improperly influenced judge was not there admissibility of the allegedly involuntary Miles, v. 401 F.2d by. United States cross-examine witnesses Indeed, when 1968). even we have concerning his claim of le improperly held admitted niency Moreover, were made to him. under trial, pre we have refused to in bench law, Illinois he could have testified at trial considered it sume that on the voluntariness issue subject without reaching E.g., his verdict. United v. States ing himself to cross-examination broader (7th Cir.), Stanley, 411 F.2d cert. than scope his direct testimony.4 denied, 396 U.S. 90 S.Ct. Had he been able to testify at a (1969); Menk, L.Ed.2d 423 States suppression hearing trial, rather than at 124, 127 (7th denied, Cir.), cert. would still have been subject to impeachm 2019, 23 L.Ed.2d 89 S.Ct. Thus, no ent.5 purpose essential would (1969). Accordingly, considering the case have been served stopping the pro us, prior before we must adhere to our ceedings to hold a separate evidentiary holding that hearing in which the same testimony would trained, experienced “a Federal District presented have been before very same judge, distinguished from a jury, trier of fact.6 Plaeek therefore received presumed must be to have exercised the object opportunity to the admissibili proper distinguishing be- discretion ty of the confession and full and fair improper proper tween the and the evi- judicial question voluntar dence introduced and to have iness to which Jackson latter, entitled him. based his decision He showing showing of a clear has made no judge’s absence the trial appellant.” contrary by United States v. determination was improperly influenced Menk, supra at 127. by consideration of his confession’s truth.7 separate hearing hearing judge but also a other Jackson, L.Ed.2d 251 than the trier of ultimate fact. how- ever, any intent disavowed to mandate such a Kirkwood, People Ill.2d 160 N.E.2d procedure setting bench trial in the now before *8 766, 847, (1959), 771 U.S. 363 80 n.19, n.19; us. at 391 378 U.S. 84 S.Ct. 1774 1623, (I960); People L.Ed.2d 1730 S.Ct. 4 v. 391, Jarvi, Or.App. 363, 3 State v. 474 P.2d 364 218, 596, Smith, (1952); 413 Ill. 108 N.E.2d 598 Law, (1970); Developments Confessions, in the Davis, 709, People Ill.App.3d 19 312 v. N.E.2d 935, (1966). 79 Harv.L.Rev. 1068-69 360, (1st 1974). 364 Dist. specific Ladas, 290, 57, 7. If evidence that People the trial court’s vol 5. 12 Ill.2d 146 N.E.2d untariness determination (1958); People Hoyos, had been Ill.App.3d influenced 59 v. De 31 by clearly 643, ap 12, (1st 1975). the truth of 648 332 N.E.2d Dist. peared us, record before on the Jackson would Any advantage supposed require E.g., 6. from derived a de- a different result. Hutcherson v. being testify suppression States, U.S.App.D.C. able to a fendant’s at 122 351 F.2d (1965); States, than at trial would seem to rather be 752-53 cf. Fotie v. United process fleeting required (8th 1943). due unless a 137 F.2d Cir. We refuse may state trier of fact process requires be that due reconstructed do not believe We of the plain fact to “his view facts is sitting as the trier of when from his judge a trial or of other indicia” opinion eviden- in the trial and hold a recess Id. at at 758. Fur- reliability of his record. S.Ct. hearing to ensure the tiary thermore, in the “ordinary case” where determination.8 voluntariness no has been there articulation of the consti- above, Notwithstanding the applied standards the state court tutional a eviden he is entitled to new argues that claim, of the constitutional disposing Town- voluntariness issue be hearing on the tiary says may that federal courts “properly send the state trial court nor neither cause the state trier of fact applied assume find any explicit court below district standards of federal correct law to claim that he was ing underlying on his facts, absence of in the evidence . Jackson, leniency. of of given promises suspect is reason to there that an in- “re course, judge that the make a requires applied.” correct standard was in fact Id. determination” of both and clear-cut liable 314-15, 83 at A paradigm at S.Ct. 758. of is dependent issue and voluntariness the circumstances in which reconstruction bearing thereon. at fact sues of implicit findings state court possible of However, at 1774. the trial given in Townsend: “if prior was state findings make formal “need not in the origi- occurred course of the opinion” long an as “his or write fact . . . on a motion to suppress nal voluntary the confession is conclusion allegedly unlawful evidence ... appear[s] from record with usually proper be will assume that clarity.” Georgia, 385 Sims v. unmistakable rejected on claim was the merits.” Id. at 538, 544, 639, 643, 17 L.Ed.2d S.Ct. U.S. 758. 83 S.Ct. at case, In the instant the state trial hand, findings at no formal In the case court, denying sup Placek’s motion to regard- state were entered fact incriminating press his statements because promise-of-leniency claim. ing Placek’s allegedly they by promises were induced Thus, must determine whether the mer- leniency, exclaimed that the statements dispute were ever re- of that factual “clearly voluntary” and not “coerced court trial. at his state solved encouraged any any way way by Sain, Townsend police officer.” court’s voluntariness (1963), in- appears which itself thus in the with record claim, involuntary-confession clarity,” as- and implicit volved “unmistakable in the ruling endeavor. It instructs is a finding us in this court’s that no sists recognize sure, leniency court to that state court were ever made. To federal be implicit ruling in a on the findings may be the court’s comment was made before presented a constitutional merits of claim voluntariness issue had Placek; though explicit findings presented by however, even no been ruling disputed premised been entered facts court’s its state findings the claim. The there were no underlying ment however, today, presume judge’s the trial tential influence” on a trial considera- judge’s determination was unreli- tion of the voluntariness issue. United States merely because he had heard evidence able Sielaff, ex rel. Hickman v. guilt voluntari- in concert with evidence on the 1975). Holding pretrial hearing, or a trial. ness issue at separate hearing when the voluntariness issue preferable seems is first raised in order holding process By not offended due possibility improper to minimize the that such case, procedure employed in this the state However, might arise. influence the Constitu- to commend to other courts the we do not wish *9 course, tion, gives supervisory power holding hearing us no practice a voluntariness conjunction previ- “prefer- compel with a bench trial. We have courts to follow our to state ously procedures procedures. with disfavor on that regarding looked ences” incriminating “pó- permit evidence to work a ciency, “at this time.” waited the motion four months grounds for to reindict Pla- added). cek, We believe this shows delayed and then (Emphasis six months to serve willingness to reconsider its rul- with an arrest him warrant on the court’s the second forth with Assuming come further ing arguendo had Placek indictment. the No such evidence delays the issue.9 were not evidence on attributable to action Indeed, forthcoming. on cross-exami- of Placek and that he was made a demand for counsel, arresting the by objected Placek’s trial at the time his counsel nation ever requests declared that no for a prosse officer State’s nolle and a may That counsel have indictment, to Placek. continuance to obtain a new made we to say, balancing the tactical decision not meet the after made cannot the other fac- arresting testimony officer’s with Placek’s deemed relevant to a speedy tors trial claim own, Wingo, the deni- not to reinforce officer’s in Barker v. and 407 U.S. 92 S.Ct. cross-examining manager (1972), the hotel 33 L.Ed.2d 101 by al delay the prom- have to alleged was to rises the level of a who also federal constitutional leniency, Placek does not mean that ises of error. opportunity adequate- the to was not delay, The 10-month even assuming most develop the material facts. The record

ly inexcusable, to be of it is less than delays supports prelimi- the trial court’s clearly found have tolerable in other cases. For and finding of voluntariness does nary example, we said in United Joyce, States v. find-, to reconsider that any reason reveal (7th 1973), 499 F.2d denied, Cir. cert. Accordingly, we conclude that ing. 419 U.S. 95 S.Ct. 42 L.Ed.2d 306 appears determination court’s voluntariness (1974), a delay, “12-month while not “with unmistakable clari- from the record insignificant, itself, is not extreme.” In a Georgia requires. 385 U.S. ty,” as Sims delay 10-month is not so long that we can 544, 87 at 639. assume “a certain amount of presumed re- Placek thus received all Jackson prejudice” we did in United States v. abuse quires, DeTienne, district did not (7th 468 F.2d 1972), Cir. an denying Placek eviden- discretion hearing. tiary (1973), delay where a of over 19 was

months ultimately held not to have deprived accused of V. his constitutional right speedy a trial. argument final is Moreover, deprived of his constitutional to a prejudice asserted is speedy anxiety generated by trial. The essence of claim is Placek the delay. State, prossing after nolle its ini was not incarcerated prior to trial. fact, a tial indictment because of technical defi- In Placek’s brief reveals that he con- distinguishes experience purge incompe- 9. This the instant case from Unit- his mind of Sielaff, ruling rel. ed States ex Hickman 521 F.2d involuntary tent evidence before on an (7th Thus, trial, where we ordered a new Cir. claim. in a bench unlike hearing jury state trial a the trial can admit a confes- allegedly involuntary subject court admitted confes- into sion to later exclusion hearing without hearing sion into evidence the defend- testimony the defendant’s after without testimony on voluntariness issue a having Indeed, ant’s prac- to declare mistrial. presence suppression held contingently admitting tice of evidence in a jury. holding predicated Our Hickman was longstanding encouraged by bench trial one dispo- prejudicial effect court’s many prevent courts commentators new of the voluntariness issue without hear- sition following overly reversals trials attributable likely ing from the defendant scrupulous application exclusionary rules. jury’s credibility assessment of his and its IRS, E.g., Builders Steel Co. v. 179 F.2d of the issue. Id. at 386-87. reconsideration Devitt, 1950); Judge’s Profes- now, sion, Newly setting Appointed before us Seminars for In the bench trial Judges (Comm, aspects parte District ex States Pretrial troubling. Procedure, in Hickman are less A Judicial Conference of condemned the United jury, 1963). judge, learning unlike a is trained States *10 job awaiting his working at while tinued America, caused no loss of witness delay

trial. The UNITED STATES of es, period Plaintiff-Appellant, not such a substantial it was a serious risk of severe caused as to have concerning the events at memory lapses CO-OP, corpo- CERTIFIED GROCERS Indeed, Placek admits in his brief issue. al., Defendants-Appellees. et ration to his defense as such” “prejudice no 76-1112. No. delay. a result Given occurred admission, unpersuaded we are that he Appeals, Court of United States his constitutional to a was denied Circuit. Seventh trial; moreover, we are convinced speedy Argued necessarily Sept. 1976. would to be error have beyond a reasonable doubt harmless deemed Dec. Decided “per Placek has not out a prejudice” showing of to his de suasive Clay, States

fense. Cir.), 371, 38 L.Ed.2d 133 VI. above, noted affirm For the reasons court’s dismissal Placek’s ha- the district an evidentiary without hear- petition beas ing.

AFFIRMED.

TONE, Judge (concurring). Circuit opinion

I court’s would concur but to the statement at note make one addition prejudiced not 4 that Placek during the voluntariness issue hearing of law, Illinois “under he could trial because at trial on the have testified subjecting himself to cross- issue without than the scope examination broader testimony.” Placek does contend direct might testimony that the issue would the voluntariness have tended him. Accordingly, to incriminate the same properly trier of fact could determine both issues.