People v. Kincaid

• Decision Date: 25 August 1980
• Docket Number: No. 15891,15891
• Citation: 409 N.E.2d 469,42 Ill.Dec. 854,87 Ill.App.3d 552
• Parties: , 42 Ill.Dec. 854 The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Frank Louis KINCAID, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 469

409 N.E.2d 469

87 Ill.App.3d 552, 42 Ill.Dec. 854

The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Frank Louis KINCAID, Defendant-Appellant.

No. 15891.

Appellate Court of Illinois, Fourth District.

Aug. 25, 1980.

Rehearing Denied Sept. 19, 1980.

Richard J. Wilson, Deputy State App. Defender, Springfield, Janet Sinder, Asst. State App. Defender, Springfield, for defendant-appellant.

Patrick M. Walsh, State's Atty., Decatur, Gary J. Anderson, Deputy Director, Robert J. Biderman, Staff Atty. State's Attys. App. Service Commission, Springfield, for plaintiff-appellee.

MILLS, Presiding Justice:

Indecent liberties.

Bench trial.

Guilty.

Five years.

Two of us affirm-one dissents.

Issues

On appeal, Kincaid asserts that: (1) his confession was involuntary and should have been suppressed; (2) the trial court erred in allowing the State to amend the information; and (3) the trial court abused its discretion in allowing the victim to testify without properly ascertaining his competency.

Facts

Kincaid was charged with taking indecent liberties with a child and contributing to the sexual delinquency of a child. Prior to trial, defendant filed a motion to suppress his statements made to the police officers. At the suppression hearing, Detective Roy Glick testified that he interviewed the defendant at 7:43 p.m. on the day of his arrest. Defendant was given Miranda warnings and agreed to talk to Detective Glick. Defendant said that Warren Hopkins had spent one night at his apartment. Shortly after Warren arrived, defendant left for work, leaving Warren with defendant's sister, girlfriend, and daughter. Defendant denied being involved in the acts charged.

Detective Glick later spoke to Officers Kretsinger and Ryan about the interview. He told them that defendant should be interviewed again before being transferred to the county jail because he had learned that defendant had not worked on the night in question.

Sergeant Virgil Stolz testified that he spoke to defendant at the city jail at about 9 p.m. on the night of defendant's arrest. Defendant told Stolz that he had taken approximately 15 tablets of Erythromycin before he was arrested. Sergeant Stolz called the hospital and spoke to Dr. Miller who told the officer that the only effect of such a pill dosage would be an upset stomach.

Officer Richard Steele stated that at 9:20 p.m. he noticed defendant in a jail cell with a shirt tied to one of the bars and around his neck. The shirt was tied to a bar about two feet from the ground and defendant was sitting on the floor of the cell. The officer cut the shirt. He did not remember whether defendant was unconscious, but the defendant was coughing and gagging. The defendant was then taken to the emergency room of Decatur Memorial Hospital.

In the emergency room, Dr. Miller examined the defendant. At this time, defendant was angry, uncooperative and upset, and while being treated, defendant bit a thermometer in half. Defendant was given an injection of 5 milligrams of Haldol, a major tranquilizer, at about 10:20 p.m. Haldol blocks or reduces anger by blocking adrenalin. Dr. Miller stated that Haldol would not cause a person to become disoriented or lose his will or rationality, but it would help him think more rationally. The possible side effects listed in the Physicians Desk Reference included insomnia, restlessness, anxiety, euphoria, agitation, drowsiness, depression, lethargy, headache, confusion, vertigo, and grand mal seizures. Dr. Miller said that the drug's effects would last approximately one day. The maximum effect would occur between one and six hours after the drug was administered. Defendant was released 35 minutes after the drug was injected. At that time, Dr. Miller noted no side effects, but not all of the side effects would be evident within the 35-minute period.

Officer Steele testified that when the defendant returned from the hospital he was placed in his cell naked so that he would not try to hang himself again. According to Officer Steele, there was a noticeable change in the defendant after he received the injection. Defendant had been very upset, angry, and hostile. After the injection, he was calmer, quieter, and more cooperative.

Defendant was again questioned by the police shortly after midnight. Officers Ryan and Kretsinger were present. Defendant was advised of his rights and indicated that he understood them. He first told Detective Ryan that on the night Warren Hopkins had stayed in his apartment, Warren had slept with the three girls in the bedroom, and defendant had slept on the couch. Later in the interview, however, defendant said that he slept in the bedroom with Warren and that he had been drinking a little bit. He also stated that he grabbed Warren's penis. He denied that there was ever any penetration. Detective Ryan said that defendant did not appear to be abnormal in any way at this time. He had been told that the defendant had been given an injection but not that defendant had been given a mood-altering drug. He was also aware that defendant had denied the charges in the previous interview.

Officer Kretsinger testified that he read defendant his rights and allowed the defendant to read the rights form. He said that defendant signed the rights from twice, once each time he was interviewed. According to the officer, the first signature was more legible than the second. Kretsinger did not know that the defendant had been previously tranquilized.

Defendant stated that he was interviewed about 8 p.m. by Detective Glick. In this interview, defendant denied that he had committed indecent liberties with a child. After being put in a cell, defendant "just felt I didn't want to go through with it anymore." He then tried to hang himself. Later, at the hospital, defendant was given a shot without his permission. Before the injection, he felt depressed and angry. After the injection, he felt as though he were "high." Defendant said he then felt sleepy, but vaguely remembered leaving the hospital and being put into a car. He next remembered waking up in the county jail. He did not remember making the second signature on the rights form or talking with Officers Kretsinger and Ryan.

The court denied defendant's motion to suppress.

A bench trial took place on September 28, 1979. Just prior to trial, the State's motion to amend the indecent liberties count of the information, to allege that Warren Hopkins was "a child under the age of sixteen years," was granted over defense objection.

The victim's mother testified that Warren had spent the night at defendant's apartment on June 12 or 13, 1979. When defendant brought Warren home the next morning, Warren appeared to be in good physical and mental health. About five weeks later, Warren told his mother of the incident. She then spoke to a police officer and took Warren to a doctor.

Warren Hopkins testified that he was eight years old and in the second grade. When he was questioned to determine his competency, he stated that he knew the difference between the truth and a lie. He described a lie as "a sin." He defined a sin a "something God don't like." The court found Warren competent to testify.

Warren stated that he stayed at defendant's apartment one night. Defendant's sister and daughter were also there. Warren slept in defendant's bed and when asked what the defendant had done to him, Warren said, "He stuck his penis in my butt. And he made me feel his penis and he felt mine." Warren told his mother about this, but not right away. He did not know why he had not told anyone earlier. He also said that he had heard about this happening to someone else "a long time ago." He did not remember who had told him about this type of incident, but he heard about it before he stayed at defendant's apartment.

Officer Ryan then testified concerning defendant's oral statements over a defense objection.

Defendant's sister testified that Warren had come to the defendant's apartment sometime in June. She, Warren, and defendant's daughter had stayed in the bedroom while defendant slept on the couch. In the morning, Warren was still in bed and defendant was on the couch. She denied telling the police that defendant had slept with Lowanda, his girlfriend, while she slept on the couch and Warren and defendant's daughter slept on the living room floor.

The defendant testified substantially the same as at the hearing on the motion to suppress. The State requested the court to take judicial notice of the defendant's testimony at the suppression hearing and the court granted the request over a defense objection.

On rebuttal, Detective Glick testified that on July 20, 1979, at the Decatur Police Department, defendant's sister told him that when Warren stayed over, defendant had slept with Lowanda Page. Defendant's sister and the children had slept in the living room.

I

Defendant initially contends that his confession was involuntary and should have been suppressed because he was interrogated two hours after being injected with a tranquilizer. He correctly notes that an involuntary confession may not be used to obtain a criminal conviction. Jackson v. Denno (1964), 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908.

On a motion to suppress a confession, section 114-11 of the Code of Criminal Procedure of 1963 directs:

"The burden of going forward with the evidence and the burden of proving that a confession was voluntary shall be on the State." (Ill.Rev.Stat.1979, ch. 38, par. 114-11(d).)

The defendant claims that the State did not meet this burden.

Whether a particular statement was voluntarily given must be determined from the totality of the circumstances. (People v. Simmons (1975), 60 Ill.2d 173, 326 N.E.2d 383.) It is initially the task of the trial court to determine what effect the drug may have had at the time the statement was given, along with all other attendant circumstances. (People v. Koesterer (1976), 44...