People v. Hicks

• Decision Date: 24 March 1970
• Docket Number: No. 41211,41211
• Citation: 44 Ill.2d 550,256 N.E.2d 823
• Parties: The PEOPLE of the State of Illinois, Appellee, v. Morris HICKS, Appellant.
• Court: Illinois Supreme Court

Page 823

256 N.E.2d 823

44 Ill.2d 550

The PEOPLE of the State of Illinois, Appellee, v. Morris HICKS, Appellant.

No. 41211.

Supreme Court of Illinois.

March 24, 1970.

Sam Adam and Edward M. Genson, Chicago, for appellant.

William J. Scott, Atty. Gen., Springfield, and Edward V. Hanrahan, State's Atty., Chicago (James B. Zagel, Asst. Atty. Gen., and Elmer C. Kissane and Joseph Romano, Asst. State's Attys., of counsel), for the People.

CULBERTSON, Justice.

We here consider two separate appeals, consolidated for purposes of opinion, which have been prosecuted by defendant, Morris Hicks, from judgments of the circuit court of Cook County. The first appeal is from a judgment, predicated on a jury verdict of guilty, convicting him of the murder of Virginia Simmons and sentencing him to the penitentiary for a term of not less than 20 nor more than 50 years; the second is from a judgment which dismissed without a hearing a petition wherein defendant sought relief under the provisions of the Post-Conviction Hearing Act, Ill.Rev.Stat.1967, ch. 38, part. 122--1 Et seq.

Facts necessary to a consideration of the issues raised disclose that in the early morning hours of February 13, 1967, Jacob Simmons and his wife, Virginia Simmons, were shot to death at the Tiger Lounge in Chicago, where defendant had spent several hours dining and drinking with two female companions. Simmons was shot inside the establishment at a crowded bar while his wife was shot on the sidewalk outside where she had followed her husband's assailant. So far as the record shows, the single eyewitness to the shooting of Virginia Simmons was James Thames, who had just left the lounge. Police were summoned and on the basis of information gathered, went to defendant's apartment to apprehend him.

When the officers were admitted to the apartment building after ringing a buzzer defendant was standing on the stairs and when asked if Morris Hicks was there, defendant replied: 'I am Morris Hicks. I knew you were coming. I did it.' Upon being asked about his gun, defendant led an officer to a bedroom closet where it was retrieved from a coat pocket. As defendant was being driven to a police station, according to the testimony of one of the officers present, he was sobbing and babbling and said words to the effect that 'its all over for him, he ruined his life, everything he worked for all his life is gone.' About two hours later, Thames was brought to the station and identified defendant as the man he had seen when Virginia Simmons was shot. According to defendant's post-conviction petition, Thames was brought to a room where defendant was sitting alone at a desk, in handcuffs, to make the identification.

Defendant testified on his own behalf at the trial that he had shot Virginia Simmons in self-defense. By his version, she threatened to kill him inside the tavern after he shot Jacob Simmons, followed him outside, and drew a gun from her purse making it necessary for him to shoot in self-defense. Prosecution evidence, however, established that Virginia was shot in the back, that she had nothing in her hands when shot, and that her purse was on the tavern bar.

Referring to his admission of guilt made to the police when they confronted him at the apartment building, and to the incriminating statements attributed to him while driving to the station, defendant asserts that the trial court erroneously admitted two 'confessions' into evidence, and compounded the error by failing to hold a 'pretrial' hearing as to one of them. Here, as was true in the trial court, it is contended that evidence of defendant's admissions was inadmissible because he had not, prior to making them, been informed of his right not to incriminate himself, or of his right to counsel, in accordance with the dictates of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694. Without regard, for the moment, to the issue of whether the commands of Miranda made the evidence inadmissible, it is clear that there is no validity to the claim that the court erred in failing to hold a 'pretrial' hearing in respect to the admission of guilt at the apartment building.

The record does indeed show that defendant, on the day set for trial, filed a motion to suppress his admissions. But it likewise shows a further request of defendant that the motion be heard jointly with the trial. When the point of trial was reached where the police officer testified concerning the admission made at the apartment, defense counsel neither requested a preliminary hearing, nor objected to the testimony. In light of these failures, defendant cannot complain on appeal. Where an accused fails to object to the introduction into evidence of an admission or confession, its reception into evidence without preliminary proof of voluntariness is proper and not open to review. People v. Blumenshine, 42 Ill.2d 508, 515, 250 N.E.2d 152; People v. Sims, 32 Ill.2d 591, 594--595, 208 N.E.2d 569.

Defense counsel did object when the prosecution sought to elicit testimony concerning defendant's incriminating statements made while he was a passenger in the police car, and a preliminary hearing was held which established beyond a shadow of a doubt that the statements had been completely voluntary and not the product of police suggestion or interrogation. Indeed, no contention is made here that the proof permitted any other conclusion. Under the circumstances, and the same would be true in respect to defendant's first admission, the court did not err in admitting the statements into evidence. Miranda, as we have previously pointed out in People v. Shelton, 42 Ill.2d 490, 492, 248 N.E.2d 65, and People v. Hill, 39 Ill.2d 125, 130, 233 N.E.2d 367, expressly excepted from its scope voluntary statements of any kind made by an accused, as opposed to admissions elicited by custodial interrogation. Miranda v. Arizona, 384 U.S. 436, 478, 86 S.Ct. 1602; see also: People v. Kaye, 31 A.D.2d 536, 295 N.Y.S.2d 81, aff'd 25 N.Y.2d 139, 303 N.Y.S.2d 41, 250 N.E.2d 329; State v. Billings, 84 Nev. 55, 436 P.2d 212; State v. Gosser, 50 N.J. 438, 236 A.2d 377; Parson v. United States (6th Cir.), 387 F.2d 944.

Defendant next contends that it was error for the court to deny his motion for a substitution of judges, and that his subsequent trial by a judge who was prejudiced against him constituted a denial of due process of law. Facts required to place this contention and subsequent arguments of defendant in a proper perspective disclose that the matter was first assigned to the judge in question on March 20, 1967, the same date that defendant's retained counsel entered his appearance. After various continuances, a motion by defendant to suppress his gun from evidence was heard on October 23 and 24, 1967, the second day being necessary because defendant was granted a continuance to obtain and present two rebuttal witnesses. The motion to suppress was denied and when both sides represented they were ready, trial was set for October 30, 1967.

When court convened on the day set for trial, defendant filed the motion to suppress his oral statements, previously discussed, and also requested that the case be continued to November 20, 1967. As grounds for the latter request it was represented, first, that a witness important to the motion would not be available until such date, and, second, that counsel had not been aware that defendant had made oral statements, or admissions, to the police until hearing testimony given at the hearing on the motion to suppress...