People v. Cook, Gen. No. 50446

• Decision Date: 02 December 1966
• Docket Number: Gen. No. 50446
• Parties: PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Fred COOK, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 13

222 N.E.2d 13 78 Ill.App.2d 219 PEOPLE of the State of Illinois, Plaintiff-Appellee,
v.
Fred COOK, Defendant-Appellant. Gen. No. 50446. Appellate Court of Illinois, First District, Fourth Division. Dec. 2, 1966.

[78 Ill.App.2d 221]

Page 14

William B. Smith, Chicago, for appellant.

Daniel P. Ward, State's Atty., Chicago, for appellee, Elmer C. Kissane, E. Roger Horsky, Asst. State's Attys., of counsel.

ENGLISH, Justice.

OFFENSE CHARGED IN THE INDICTMENT

Armed Robbery.

JUDGMENT

After a jury verdict finding defendant guilty, he was sentenced to a term of ten to twenty-five years.

POINTS RAISED ON APPEAL

Defendant was denied a fair trial in that:

(1) His confession was erroneously admitted into evidence.

(a) He had not been advised of his constitutional right to counsel.

(b) The State failed to establish that it was voluntary.

[78 Ill.App.2d 222] (2) He was denied access to police reports subpoenaed prior to trial.

(3) Cross-examination of a State's witness was unreasonably restricted.

(4) The trial judge made prejudicial statements in the presence of the jury.

EVIDENCE

Since defendant makes no point requiring consideration of the facts in this case, they will not be set forth in this opinion. They may be found in the opinion, filed today, affirming the conviction of co-defendant Carver. People v. Carver, Ill.App., 222 N.E.2d 17 (1st Dist., No. 50449).

OPINION

(1) (a). Defendant made no request for an opportunity to consult counsel during his interrogation, but contends that he was denied a constitutional right in not being advised of his right to counsel prior to confession (and that such denial rendered the confession inadmissible). This contention has been answered adversely by the United States Supreme Court in opinions filed subsequent to defendant's brief. Defendant relies on rights established in Escobedo v. State of Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977, but even as later clarified and expanded in Miranda v. State of Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 the point was rendered unavailable to this defendant in Johnson v. State of New Jersey, 384 U.S. 719, 86 S.Ct. 1772, 16 L.Ed.2d 882. There it was held that the standards laid down in Escobedo and Miranda are not applicable retroactively, and

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those decisions are therefore controlling only as to trials begun after June 22, 1964 (Escobedo) and June 13, 1966 (Miranda), respectively.

Trial in the instant case commenced on November 9, 1964, so Escobedo is applicable but Miranda is not. The essence of defendant's point (that he had not been advised of his right to counsel) finds no support in Escobedo, however, but only in Miranda, since defendant [78 Ill.App.2d 223] had not requested an opportunity to consult counsel. The contention must fall, therefore, on the authority of People v. Hartgraves, 31 Ill.2d 375, 202 N.E.2d 33, which still governs in this situation.

(1) (b). We must, nevertheless, consider the absence of counsel, and the failure of the police to advise defendant of his right to counsel, as significant factors in determining whether or not the confession was given voluntarily. Davis v. State of North Carolina, 384 U.S. 737, 86 S.Ct. 1761, 16 L.Ed.2d 895; People v. Heise, 35 Ill.2d 214, 216--217, 220 N.E.2d 438. On the other hand, another 'significant factor' to be considered with all other evidence on the subject, in accordance with Davis, is the fact that...