People v. Kincaid

Mr. PRESIDING JUSTICE MILLS delivered the opinion of the court: 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 Click 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 Click. 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 Click 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 could 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 form 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 Click. 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 as “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 Click 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, 12 L. Ed. 2d 908, 84 S. Ct. 1774. 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 Ill. App. 3d 468, 358 N.E.2d 295.) The question for this court to consider is whether the trial court’s decision was against the manifest weight of the evidence. People v. Jones (1978), 65 Ill. App. 3d 1033, 383 N.E.2d 239. The mere fact that the defendant had taken or was administered a drug prior to questioning is not — standing alone — sufficient to render a confession involuntary. (See, e.g., People v. Muniz (1964), 31 Ill. 2d 130, 198 N.E.2d 855; People v. Harris (1979), 69 Ill. App. 3d 91, 386 N.E.2d 933; People v. McKinnie (1974), 18 Ill. App. 3d 1012,310 N.E.2d 507; People v. Pote (1972), 5 Ill. App. 3d 856, 284 N.E.2d 366.) The crucial question is whether the defendant’s will was overborne. McKinnie. We hold that the trial court’s decision — that the confession was voluntary and that the defendant’s will was not overborne — is not against the manifest weight of the evidence. We reach this decision based upon the entirety of the facts available to the trial court. We find particularly significant the fact that the primary effect of the drug administered to the defendant is that it reduces a person’s anger and makes him more rational. Although there were various side effects associated with the drug, in their absence, the user may perform such routine tasks as going to work and driving a car. Here, the interrogating officers stated they did not notice the presence of any side effects in the defendant’s behavior. Additionally, Detective Ryan testified that defendant did not appear to be abnormal in any way. The dissent places a heavy reliance upon the decision in Townsend v. Sain (1963), 372 U.S. 293,9 L. Ed. 2d 770,83 S. Ct. 745. In actuality, the test used by the Supreme Court there is the same employed here — was the defendant’s will overborne? This is a factual question which the trial court decided against the defendant. The Townsend case is clearly distinguishable from the instant case. In Townsend, the petitioner was given phenobarbital and hyoscine. Hyoscine is the same as scopolamine, familiarly known as “truth serum.” The court held that the petitioner had presented sufficient allegations to require an evidentiary hearing on his habeas corpus petition. The dissent grasps for a slender reed. II The information charging defendant with indecent liberties with a child alleged that defendant: “• ° e committed the offense of INDECENT LIBERTIES WITH A CHILD (CLASS 1 FELONY), in violation of chapter 38, section 11 — 4 of the Ill. Rev. Stat. 1977, as amended, in that the said defendant being a person of the age of 17 years and upwards, performed a lewd fondling or touching of Warren H. Hopkins with the attempt to arouse or to satisfy the sexual desires of the defendant, * ° Prior to trial, the State moved to amend the information to allege that Warren Hopkins was “a child under the age of 16 years.” The defendant next contends that the trial court erred in allowing the State to amend the information in this manner. Section 111 — 5 of the Code of Criminal Procedure of 1963 provides: “An indictment, information or complaint which charges the commission of an offense in accordance with Section 111 — 3 of this Code shall not be dismissed and may be amended on motion by the State’s Attorney or defendant at any time because of formal defects, * * Ill. Rev. Stat. 1979, ch. 38, par. 111 — 5. Under this section, only formal defects may be corrected. If the defect is substantive, the amendment is improper. (People v. Heard (1970), 47 Ill. 2d 501, 266 N.E.2d 340; People v. Gray (1978), 61 Ill. App. 3d 243, 377 N.E.2d 1311.) The defendant argues that the requirement of the child being under the age of 16 is a material element of the offense and, as such, the charge is void for failing to state an offense. Thus, the State reasons that the defect in omitting this element is fundamental, and not formal. Section 11 — 4 of the Criminal Code of 1961 (Ill. Rev. Stat. 1979, ch. 38, par. 11 — 4) provides that any person over the age of 17 years commits indecent liberties with a child when he or she performs a specified act with a child under the age of 16. The original information asserted that defendant committed this offense when he performed a lewd fondling or touching of the victim. It was revealed at the preliminary hearing that Warren Hopkins was eight years old. The instant defect in the information was formal. HI Finally, the defendant contends that the trial court did not adequately determine the competency of eight-year-old Warren Hopkins. We disagree. The court had adequate opportunity to assess the witness’ competency and properly determine that he was competent. The court conducted an extensive questioning of Warren concerning his competency. Defendant’s central complaint is that the court did not adequately assess the witness’ concept of truth. The witness defined truth as something God likes and a lie as “a sin” which is something God doesn’t like. The witness also stated that someone who swears to tell the truth and lies goes to the devil. It is not age but the degree of intelligence of a child which determines the question of his competency to testify, and if the witness is sufficiently mature to receive correct impressions by his sense, to recollect and narrate intelligently, and to appreciate the moral duty to tell the truth, the witness is competent. (People v. Ballinger (1967), 36 Ill. 2d 620, 225 N.E.2d 10, cert, denied (1967), 388 U.S. 920, 18 L. Ed. 2d 1366, 87 S. Ct. 2141.) The trial judge’s determination that a witness is competent to testify will not be disturbed on review unless there has been an abuse of discretion or a manifest misapprehension of some legal principle. People v. Davis (1957), 10 Ill. 2d 430, 140 N.E.2d 675, cert, denied (1957), 355 U.S. 820,2 L. Ed. 2d 35, 78 S. Ct. 25. We conclude that the trial judge did not abuse his discretion and that the evidence available to him through questioning and observation of the witness’ abilities was sufficient for the trial court to properly make his determination. Affirmed. GREEN, J., concurs.