U.S. ex rel. Hickman v. Sielaff

• Citation: 521 F.2d 378
• Decision Date: 28 August 1975
• Docket Number: No. 75-1234,75-1234
• Parties: UNITED STATES of America ex rel. Franklin HICKMAN, Jr., Petitioner-Appellant, v. Allyn SIELAFF, Director, Department of Corrections, and Joseph Cannon, Warden, Illinois State Penitentiary, Stateville Branch, Respondents-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 378

521 F.2d 378

UNITED STATES of America ex rel. Franklin HICKMAN, Jr., Petitioner-Appellant, v. Allyn SIELAFF, Director, Department of Corrections, and Joseph Cannon, Warden, Illinois State

Penitentiary, Stateville Branch,

Respondents-Appellees.

No. 75-1234.

United States Court of Appeals, Seventh Circuit.

Argued June 10, 1975.

Decided Aug. 28, 1975.

Ralph Ruebner, Deputy Defender, Ira A. Moltz, Asst. Defender, Elgin, Ill., for petitioner-appellant.

William J. Scott, Atty. Gen., Thomas Connors, Asst. Atty. Gen., Chicago, Ill., for respondents-appellees.

Before CLARK, Associate Justice (Retired) ^*, FAIRCHILD, Chief Judge and PELL, Circuit Judge.

PELL, Circuit Judge.

Following a jury trial in the circuit court of Winnebago County, Illinois, the defendant Franklin Hickman, Jr., was convicted of attempted murder and attempted armed robbery. His convictions were affirmed by the intermediate state appellate court. People v. Hickman, 3 Ill.App.3d 919, 280 N.E.2d 787 (1971). In the Supreme Court of Illinois the attempted robbery conviction was reversed for reasons not material here and the attempted murder conviction was affirmed. People v. Hickman, 56 Ill.2d 175, 306 N.E.2d 32 (1973). Hickman's petition for habeas corpus was denied and dismissed by the district court whose memorandum opinion is unreported. The district court issued a certificate of probable cause. The sole issue before this court is concerned with the propriety of the state trial court hearing on the voluntariness of Hickman's confession which was introduced into evidence.

The parties, however, do not state the issue in the same fashion. The petitioner states it as being "(w)hether the trial court committed reversible constitutional error in holding the petitioner's hearing on the voluntariness of his confession in the presence of the jury." The respondents phrase the issue as being "(w)hether the petitioner, at his state trial, waived his right to have a hearing on the voluntariness of his confession held outside the presence of the jury."

The second statement of the issue would seem to be a threshold question because if the position of the respondents is correct, it would not appear that we would need to pursue the resolution of the issue as stated by the petitioner. While the respondents in their brief have addressed only the waiver matter, we are not quite certain that they are prepared to concede that there was reversible error if we should hold against them on the issue as stated by them. In any event, we deem the resolution of the issue as stated by the petitioner not to be so clear that we would want to dispose of it by saying that the respondents are confessing error Sans waiver, or, in other words, themselves waiving opposition to the basic position of the petitioner. The voluntariness issue was raised both in the Illinois Supreme Court and the federal district court. As far as we can determine, the waiver claim either was not advanced in the first of these courts or, if it was, it was deemed to be of insufficient statute to deserve mention. The waiver issue was raised in the district court which had no difficulty in determining that "petitioner has preserved his objection to having a voluntariness hearing in the presence of the jury." Both courts, while disapproving the practice of holding the voluntariness hearing in the presence of the jury, held that upon the facts of this case the confession introduced into evidence in the trial was freely and voluntarily given.

In determining the resolution of either the threshold or the ultimate issue, we do so in the light of three Supreme Court decisions and on the basis of the state trial court transcript.

The rule of constitutional proportions was laid down in Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964) and confirmed by Sims v. Georgia, 385 U.S. 538, 87 S.Ct. 639, 17 L.Ed.2d 593 (1967), that a jury is not to hear a confession unless and until the trial judge has determined that it was freely and voluntarily given. In Jackson, the Court emphasized that "at some stage in the proceedings" a defendant has a constitutional right "to object to the use of the confession and to have a fair hearing and a reliable determination on the issue of voluntariness, a determination uninfluenced by the truth or falsity of the confession." 378 U.S. at 376-77, 84 S.Ct. at 1780. In Pinto v. Pierce, 389 U.S. 31, 88 S.Ct. 192, 19 L.Ed.2d 31 (1967), the Court while stating, "it would seem prudent to hold voluntariness hearings outside (of) the presence of the jury," nevertheless stated that "(t)his Court has never ruled that all voluntariness hearings must be held outside the presence of the jury, regardless of the circumstances. In Pinto, the judge did make the determination that the confession was voluntary and it was therefore admitted into evidence. No claim was made that because the hearing was held in the presence of the jury it was inadequate or had any other unfair consequences for the respondent.

As we read Pinto, a particularly significant circumstance was that the evidence regarding voluntariness was not taken until defense counsel made it quite clear that there was no objection to having the voluntariness of the admission considered in the presence of the jury. ¹ The respondents in the present case, of course, place their principal reliance upon the present case falling within the Pinto standard and assert that a realistic reading of the record indicates that the two requisites defined by Pinto were met because (1) the Winnebago County trial court made an independent finding that the confession was voluntary and (2) petitioner's counsel, by his words and actions, expressed assent to the holding of the voluntariness hearing in the jury's presence.

We turn to the state trial court transcript and in doing so we have no reluctance in saying that we are impressed by that which is implicit in the record, namely that the trial court judge did appear to be most conscious of attempting to preserve the constitutional rights of the defendant before him.

The situs at which the crime allegedly took place was a liquor store in South Beloit, Illinois. A merits issue in the criminal trial was whether the defendant was in the store in the capacity of a holdup man or merely as an innocent prospective purchaser of the commodity dispensed therein. The issue with which we are concerned in this appeal was developed in the testimony of Stanley Mickelson, a detective of the Winnebago County Sheriff's Department. Apparently Hickman was injured when hastily departing from the store. Detective Mickelson had proceeded to Chicago upon information that Hickman could be found in Roosevelt Hospital in Chicago. Mickelson was accompanied by several officers of the Chicago Police Department. Hickman was located in the hospital and when the officers went into his room Detective Gordon of the Chicago Police Department advised Hickman "of his rights" and Mickelson read to him the complaint for arrest. Mickelson did not recall Gordon's exact words except that "(h)e advised him that he had a right to remain silent and anything he said would be used against him in a court of law, and he had the right to an attorney and such."

There were apparently four officers with Mickelson, none of whom testified in the present case on any phase thereof. Hickman was taken by the officers to district headquarters for processing. In response to the question of whether there was any conversation between any of the officers and the defendant the answer was given in the affirmative. The witness then proceeded to volunteer that "Sgt. Gordon of the Chicago PD questioned the defendant in relation to the location of the gun." This brought an objection as to the conversation at which point the trial judge said that he would hear the matter of the objection outside the presence of the jury. Counsel for the defense pointed out that nothing apparently had been said about whether the defendant could have an attorney appointed for him and that there was nothing of waiver involved yet. Counsel stated in response to a question from the court that he was interposing an objection based on the voluntariness of the conversation that the officer was apparently about to give. The colloquy then developed that in advance of trial the defense had been given notice of an oral statement reduced to writing but had had no information with regard to oral statements not reduced to writing.

The trial court then made the following statement

"Well, it gets down then to the question that if a motion had been made prior to trial for I'll use the work (sic) 'information' to take it out of the field of whether it is a confession or an admission or whatever if the defendant had requested that he be given notice of any information or conversations attributed to him, it is a question of whether, in the absence of such notice that they may be used in the trial. I do not believe they can be. I believe without notice of such an item the defendant would not be in a position to make a motion to suppress such alleged conversations prior to trial.

Now, he is entitled to make a motion to suppress now and a hearing outside of the presence of the jury can be conducted on the question, and this is what I take it is occurring at this moment. This, I take it, is the subject of the objection that counsel has raised."

The direct examination and cross-examination of Mickelson continued for some pages of the transcript which examination was conducted out of the hearing of the jury and developed that the defendant had orally stated that the gun was at his girl friend's house and was under a mattress in the bedroom. Upon cross-examination the matter of just what warnings were given was pursued. The following questions and answers then occurred.

"Q. All right. Do you recall the defendant saying anything after these two statements by Sgt. Gordon? Did the defendant say...