People v. Harper

• Decision Date: 26 November 1969
• Docket Number: No. 41944,41944
• Citation: 253 N.E.2d 451,43 Ill.2d 368
• Parties: The PEOPLE of the State of Illinois, Appellee, v. Russell HARPER, Appellant.
• Court: Illinois Supreme Court

Page 451

253 N.E.2d 451

43 Ill.2d 368

The PEOPLE of the State of Illinois, Appellee, v. Russell HARPER, Appellant.

No. 41944.

Supreme Court of Illinois.

Nov. 26, 1969.

William E. Nelson, Hoopeston, for appellant.

William J. Scott, Atty. Gen., Springfield, and John Morton Jones, State's Atty., Danville (Fred G. Leach, Asst. Atty. Gen., and Larry P. Cramer, Asst. State's Atty., of counsel), for the People.

BURT, Justice.

After waiving indictment by the grand jury, petitioner, Russell Harper, pleaded guilty in the circuit court of Vermilion County to an information charging him with burglary and theft. Following a hearing on his application for probation and denial thereof he was sentenced to the penitentiary for a term of two to ten years. Subsequently he filed a petition under the Post-Conviction Hearing Act (Ill.Rev.Stat.1967, ch. 38, pars. 122--1 Et seq.), alleging substantial denial of his constitutional rights in the original proceedings in which he was convicted. Specifically, petitioner alleged that he would not have pleaded guilty to the charge except for the fact that he had given a written confession to certain sheriff's deputies without presence of counsel after prolonged periods of questioning and while being subjected to incessant duress. The petition further stated that prior to giving the statements petitioner was not advised that any statements might be used against him; that he had the right to remain silent; that he had the right to consultation with and presence of counsel and that if he was unable to hire an attorney one would be provided for him. Additionally, it was stated that court-appointed counsel was of very low caliber and amounted to no counsel at all. A full hearing was had on the petition at which petitioner was represented by court-appointed counsel other than the public defender as he requested. Petitioner appeals from the order of the circuit court dismissing the petition, contending that the court erred in finding that the evidence did not establish his claim of alleged violations of his constitutional rights.

In relating the circumstances in connection with the giving of the confession petitioner testified that he was arrested on a warrant on August 1, 1967, and taken to the Vermilion County jail at about 8:30 P.M. where he was interrogated on suspicion of burglary by two deputies and a statement was given by him. He was not advised of his right to counsel or told that anything he said might be used against him. He signed another statement the next day which was read to him before signing but no warnings were given as to the right of silence or to the presence or consultation of counsel. In all he was questioned about three times for about one and one-half hours each time over a period of three days before his release on bond. On cross-examination petitioner admitted that no one had mistreated him physically and further stated that the deputies had not threatened him or forced him to sign the statements.

The testimony of three deputy sheriffs was directly contrary to petitioner's on the question of advising him as to his constitutional rights prior to taking the statements. Their testimony, taken together, establishes that on both occasions when statements were taken petitioner's constitutionally protected rights were fully explained to him, including a warning that statements might be used against him, the right of silence and the right to counsel. This was further shown by certain exhibits signed by petitioner in which he acknowledged that he understood his rights and their extent specifically.

On the issue of competency of counsel petitioner testified that he visited the public defender one time in his office and conversed with him for about 20 minutes. It was his recollection that he told the attorney he had given the statements but didn't remember whether he had been asked by him whether or not petitioner's rights had been explained at the time. Petitioner said the public defender told him that if he pleaded guilty he would receive a sentence of one to three years but did not advise him as to what plea he should enter.

The public defender's version of this conference with petitioner was quite different. He testified that petitioner was advised by him of the consequences of a plea of guilty to the charge but was not told what his actual sentence would be or that any deal had been made with the State's Attorney. According to counsel, petitioner said that he had given statements to the officers after they had gone through 'the bit about constitutional rights and so forth' and that at no time did petitioner state that he was forced to give any statement or statements. When asked what he thought the public defender could do for him Harper replied that he wanted counsel to make the 'best deal possible'. He was reminded that in view of his record he would have difficulty in getting probation. This one conference between petitioner and the public defender was the only one held except those which took place at the time of court appearances. The attorney stated he had no occasion to talk to the officers about the statements given by petitioner.

A post-conviction proceeding is civil in nature. (People v. Clements, 38 Ill.2d 213, 215, 230 N.E.2d 185; People v. Alden, 15 Ill.2d 498, 502, 155 N.E.2d 617.) In such an action the petitioner has the burden of proof and must show that he has been deprived of a substantial constitutional right before he is entitled to any relief. (People v. Somerville, 42 Ill.2d 1, 11, 245 N.E.2d 461; People v. Caise, 38 Ill.2d 486, 489, 231 N.E.2d 596.) The credibility of the testimony in a post-conviction case, as in other cases tried by the court without a jury, is a matter for the trial judge to determine and unless something appears to show that the determination by the trial judge was manifestly erroneous, the trial judge, who had an opportunity to see and hear the witnesses, should be upheld. People v. Caise, 38 Ill.2d 486, 489, 231 N.E.2d 596; People v. Alden, 15 Ill.2d 498, 503, 155 N.E.2d 617; Davies v. People, 10 Ill.2d 11, 15, 139 N.E.2d 216.

There is no question about the procedural safeguards required in connection with the taking of statements during interrogation as set forth in the guidelines in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, 10 A.L.R.3d 974. The fact is, however, that the confessions here involved were never offered or...