{ "id": 5390655, "name": "The People of the State of Illinois, Plaintiff-Appellee, v. Ezell O. Jenkins, Defendant-Appellant", "name_abbreviation": "People v. Jenkins", "decision_date": "1973-02-27", "docket_number": "No. 56814", "first_page": "588", "last_page": "593", "citations": [ { "type": "official", "cite": "10 Ill. App. 3d 588" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "480 S.W.2d 387", "category": "reporters:state_regional", "reporter": "S.W.2d", "case_ids": [ 9936660 ], "opinion_index": 0, "case_paths": [ "/sw2d/480/0387-01" ] }, { "cite": "452 S.W.2d 369", "category": "reporters:state_regional", "reporter": "S.W.2d", "case_ids": [ 8505645 ], "year": 1972, "opinion_index": 0, "case_paths": [ "/tenn-crim-app/2/0169-01" ] }, { "cite": "259 A.2d 160", "category": "reporters:state_regional", "reporter": "A.2d", "year": 1970, "opinion_index": 0 }, { "cite": "436 Pa. 114", "category": "reporters:state", "reporter": "Pa.", "case_ids": [ 1926051 ], "year": 1970, "opinion_index": 0, "case_paths": [ "/pa/436/0114-01" ] }, { "cite": "67 Nev. 505", "category": "reporters:state", "reporter": "Nev.", "case_ids": [ 2418199 ], "weight": 2, "year": 1969, "opinion_index": 0, "case_paths": [ "/nev/67/0505-01" ] }, { "cite": "261 So.2d 859", "category": "reporters:state_regional", "reporter": "So. 2d", "case_ids": [ 9807433, 9807582 ], "year": 1950, "opinion_index": 0, "case_paths": [ "/so2d/261/0859-01", "/so2d/261/0859-02" ] }, { "cite": "447 S.W.2d 270", "category": "reporters:state_regional", "reporter": "S.W.2d", "case_ids": [ 10139704 ], "year": 1972, "opinion_index": 0, "case_paths": [ "/sw2d/447/0270-01" ] }, { "cite": "217 N.E.2d 195", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1969, "opinion_index": 0 }, { "cite": "350 Mass. 738", "category": "reporters:state", "reporter": "Mass.", "case_ids": [ 526950 ], "year": 1969, "opinion_index": 0, "case_paths": [ "/mass/350/0738-01" ] }, { "cite": "283 Ala. 29", "category": "reporters:state", "reporter": "Ala.", "case_ids": [ 2585803 ], "weight": 2, "year": 1966, "opinion_index": 0, "case_paths": [ "/ala/283/0029-01" ] }, { "cite": "408 F.2d 121", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 2203619 ], "year": 1968, "opinion_index": 0, "case_paths": [ "/f2d/408/0121-01" ] }, { "cite": "259 N.E.2d 382", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "123 Ill.App.2d 351", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 1580172 ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/123/0351-01" ] }, { "cite": "392 U.S. 219", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6168861 ], "weight": 3, "year": 1971, "opinion_index": 0, "case_paths": [ "/us/392/0219-01" ] }, { "cite": "395 U.S. 250", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1771609 ], "weight": 3, "opinion_index": 0, "case_paths": [ "/us/395/0250-01" ] }, { "cite": "386 U.S. 18", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6168882 ], "weight": 3, "year": 1969, "opinion_index": 0, "case_paths": [ "/us/386/0018-01" ] }, { "cite": "241 N.E.2d 476", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "100 Ill.App.2d 361", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 2821335 ], "pin_cites": [ { "page": "364" } ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/100/0361-01" ] }, { "cite": "202 N.E.2d 465", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "31 Ill.2d 408", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2833459 ], "pin_cites": [ { "page": "410" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/31/0408-01" ] }, { "cite": "384 U.S. 436", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 12046400 ], "weight": 3, "opinion_index": 0, "case_paths": [ "/us/384/0436-01" ] }, { "cite": "388 F.2d 786", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 2094287 ], "opinion_index": 0, "case_paths": [ "/f2d/388/0786-01" ] }, { "cite": "165 N.E. 178", "category": "reporters:state_regional", "reporter": "N.E.", "year": 1967, "opinion_index": 0 }, { "cite": "334 Ill. 11", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5219479 ], "year": 1967, "pin_cites": [ { "page": "16" } ], "opinion_index": 0, "case_paths": [ "/ill/334/0011-01" ] }, { "cite": "337 F.Supp. 517", "category": "reporters:federal", "reporter": "F. Supp.", "case_ids": [ 3587846 ], "year": 1967, "opinion_index": 0, "case_paths": [ "/f-supp/337/0517-01" ] }, { "cite": "221 N.E.2d 128", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "74 Ill.App.2d 472", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 2579830 ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/74/0472-01" ] }, { "cite": "181 N.E.2d 74", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "24 Ill.2d 185", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2800172 ], "pin_cites": [ { "page": "187" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/24/0185-01" ] }, { "cite": "248 N.E.2d 588", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "24 N.Y.2d 395", "category": "reporters:state", "reporter": "N.Y.2d", "case_ids": [ 2289641 ], "opinion_index": 0, "case_paths": [ "/ny-2d/24/0395-01" ] }, { "cite": "390 U.S. 377", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6170914 ], "weight": 3, "opinion_index": 0, "case_paths": [ "/us/390/0377-01" ] }, { "cite": "57 Utah 612", "category": "reporters:state", "reporter": "Utah", "case_ids": [ 8871261 ], "weight": 2, "year": 1968, "opinion_index": 0, "case_paths": [ "/utah/57/0612-01" ] }, { "cite": "123 N.E.2d 769", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1921, "opinion_index": 0 }, { "cite": "308 N.Y. 56", "category": "reporters:state", "reporter": "N.Y.", "case_ids": [ 2236635 ], "year": 1921, "opinion_index": 0, "case_paths": [ "/ny/308/0056-01" ] }, { "cite": "92 L.Ed. 682", "category": "reporters:federal", "reporter": "L. Ed.", "year": 1954, "opinion_index": 0 }, { "cite": "333 U.S. 257", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6157870 ], "weight": 2, "year": 1954, "opinion_index": 0, "case_paths": [ "/us/333/0257-01" ] } ], "analysis": { "cardinality": 714, "char_count": 12526, "ocr_confidence": 0.766, "pagerank": { "raw": 1.2903191030644996e-07, "percentile": 0.6196477091907675 }, "sha256": "36ebd31150f70e52820e2d2843bb0d5d7c3ad7636d6b9e729fb439f3585b179d", "simhash": "1:1b2a69ef4563d4f7", "word_count": 2072 }, "last_updated": "2023-07-14T20:49:00.166365+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "The People of the State of Illinois, Plaintiff-Appellee, v. Ezell O. Jenkins, Defendant-Appellant." ], "opinions": [ { "text": "Mr. JUSTICE LEIGHTON\ndelivered the opinion of the court:\nDefendant was charged with armed robbery, convicted by a jury and sentenced to serve 10 to 20 years. He appealed directly to the Supreme Court. Claiming that a substantial constitutional question was involved, defendant presented two issues. (1) Whether he was deprived of the right to call his wife as a witness in his defense. (2) Whether the trial court erred in admitting into evidence defendant\u2019s oral confession without a prior determination that it was voluntary.\nAfter briefs were filed, however, the case was transferred to this court for disposition. In this appeal, defendant does not question the sufficiency of the evidence that convicted him. Instead, he raises issues from two incidents that occurred during his trial. Therefore, except where necessary, we will not state the facts which led to defendant\u2019s indictment. We proceed directly to the two incidents.\nThe first occurred at the beginning of defendant\u2019s trial. After examining a witness, the State moved for exclusion of all witnesses from the courtroom. The motion was granted but defendant\u2019s counsel asked that defendant\u2019s wife be permitted to remain in the courtroom. The request was denied. A short time later, defendant\u2019s wife returned to the courtroom and his counsel fold the court that she had refused to be a witness because she wanted to hear her husband\u2019s trial. After an exchange between court and counsel, defendant\u2019s wife remained in the courtroom and was not called as a defense witness.\nDefendant contends that under the sixth amendment to the Federal constitution and article II, section 9 of the Illinois constitution, he had the right to call witnesses in his favor and the right to a public trial, one that allowed him to have his wife and relatives in the courtroom during his trial. To support his contention, defendant relies on the decisions in In re Oliver (1948), 333 U.S. 257, 92 L.Ed. 682, 68 S.Ct. 499; People v. Jelke (1954), 308 N.Y. 56, 123 N.E.2d 769, and State v. Jordan (1921), 57 Utah 612, 196 P. 565. Citing Simmons v. United States (1968), 390 U.S. 377, 19 L.Ed.2d 1247, 88 S.Ct. 967, defendant argues that the order excluding witnesses compelled him to surrender one constitutional right in order to assert another: he was forced to surrender calling his wife as a witness in order to enjoy his right to have her present in court during his trial. Therefore, defendant attacks the order excluding witnesses and contends that it deprived him of the constitutional right to call his wife as a witness in his defense.\nEver since Daniel confounded the Elders by examining one out of the presence of the other and proving that they had given false testimony against Susanna, it has been thought prudent to exclude witnesses from the presence of each other before they testify. This prudence has evolved the rule that a trial court has the power to exclude witnesses during the trial of a case and to direct that they shall be examined out of the hearing of each other. (23 C.J.S. Criminal Law \u00a7 1010.) Exercise of this power does not infringe on a defendant\u2019s right to a public trial. (People v. Hagan (1969), 24 N.Y.2d 395, 248 N.E.2d 588; 23 C.J.S. Criminal Law \u00a7 963(5).) In this State, consistent with this rule and the wisdom it reflects, the exclusion of witnesses is a matter within the sound discretion of the trial court; and exercise of such discretion will not be disturbed on appeal unless a clear abuse or prejudice to the defendant is shown. People v. Chennault, 24 Ill.2d 185, 187, 181 N.E.2d 74; People v. Marshall, 74 Ill.App.2d 472, 221 N.E.2d 128.\nIn this case, the trial court exercised its discretion and ordered the exclusion of all the witnesses who were going to testify. This order was proper. (See United States ex rel. Corby v. Conboy (S.D. N.Y. 1971), 337 F.Supp. 517; People v. Godsey, 334 Ill. 11, 16, 165 N.E. 178.) The order did not force defendant to surrender his right to call his wife as a witness in order that he could assert his right to have her present in the courtroom. (Taylor v. United States (9 Cir. 1967), 388 F.2d 786; see Annot, 14 A.L.R.Sd 16.) Therefore, we conclude that the order excluding witnesses did not deprive defendant of the right to call his wife as a witness in his defense.\nThe second incident occurred when the State called policeman Joseph Mullen as its last witness. Preliminary questions disclosed that at. about 3:00 A.M. of the morning that defendant was arrested, he had a conversation with Mullen in a Chicago police station. Mullen was asked about the conversation. Defendant\u2019s counsel objected and the trial court sustained the objection with an admonition that the assistant State\u2019s Attorney rephrase the question and lay the proper foundation. Defendant\u2019s counsel then requested a hearing outside the jury\u2019s presence. In a side-bar conference that followed, counsel stated the grounds for his objection. He said, \u201cI will quote from \u2018Miranda versus Arizona,\u2019 which requires him to establish the voluntary nature of all constitutional rights before statement is admitted into evidence. The burden is on him [sic].\u201d The trial judge said, \u201cOverruled. You laid a proper foundation, the time and place. Proceed. The motion is denied.\u201d\nThen, in the presence of the jury, Mullen testified that before asking defendant questions concerning the armed robbery, he informed him of his constitutional rights. Mullen said he told defendant that he had the right to remain silent; that if he spoke or said anything, it could be used against him in a criminal prosecution; that he had the right to have a lawyer present and if he could not afford one, one would be appointed for him. Defendant, according to Mullen, manifested an understanding of the constitutional warnings. Mullen said that defendant then told him he had taken part in the armed robbery and gave the details of his participation.\nAfter Mullen\u2019s testimony, the State rested its case. Defendant\u2019s counsel, having reserved the right to make an opening statement, told the jury that defendant was going to testify and tell of his participation in the armed robbery. But, as an affirmative defense, defendant was going to show that he was a narcotic addict who, at the time of the robbery, was under the influence of drugs that compelled him to participate in the crime. Defendant was called as his first witness and told the jury of his narcotic addiction and how he participated in the armed robbery. In addition, two of his sisters testified concerning his narcotic addiction. Then, after rebuttal and the State\u2019s opening summation, defendant personally made the final defense argument to the jury. He again told what he did; and in describing the conduct of the persons who were robbed, he said, \u201c[e]veryone started from the rear door. Customers and people that was \u2014 I was sticking the shop up \u2014 they started out the back door, so did I [sic].\u201d\nDefendant contends that the trial court committed error when, over his objection, it admitted the testimony of Mullen without requiring the State to prove, outside the jury\u2019s presence, that the confession about which Mullen testified was voluntary and was obtained in compliance with Miranda v. Arizona (1966), 384 U.S. 436, 16 L.Ed.2d 694, 86 S.Ct. 1602. Defendant argues that once he objected to Mullen\u2019s testimony, the trial court had the duty to adjourn the trial and conduct a separate hearing to determine whether his confession was voluntary and was obtained under circumstances that respected his constitutional rights. The State, on the other hand, contends that defendant voluntarily testified in order to interpose the defense that he participated in the armed robbery under compulsion of narcotic addition. Therefore, since he reiterated to the jury what Mullen said was his confession, defendant was not prejudiced by Mullens testimony despite the objection that was made.\nIn People v. Jackson, 31 Ill.2d 408, 410, 202 N.E.2d 465 the Supreme Court held that a defendant\u2019s objection to the admission in evidence of a confession on the ground that his constitutional rights were not explained to him, was sufficient to call for a hearing to determine whether the confession was voluntary. In People v. Mosley, 100 Ill.App.2d 361, 364, 241 N.E.2d 476, we held that when a defendant moves to suppress a confession on the ground that it was involuntary, the trial court must conduct a hearing in which the State must prove, by a preponderance of the evidence, that the confession was voluntary even if the defendant does not request a hearing. Therefore, we conclude that it was error for the trial court to overrule defendant\u2019s objection to Mullen\u2019s testimony without a hearing outside the jury\u2019s presence concerning the voluntariness of his confession. We must decide, however, whether in this case the error was harmless. Defendant insists that the error has to be harmless beyond a reasonable doubt. Chapman v. California (1967), 386 U.S. 18, 17 L.Ed.2d 705, 87 S.Ct. 824; Harrington v. California (1969), 395 U.S. 250, 23 L.Ed.2d 284, 89 S.Ct. 1726.\nWe bear in mind that defendant does not question the sufficiency of the prosecution\u2019s evidence. He was arr\u00e9sted near the scene of the robbery. On his person were found a gun, a police badge; and three victims of the robbery unhesitatingly identified him as the man who used the gun and badge to terrorize them. Defendant does not deny that before he confessed to Mullen he was informed of his constitutional rights. Nor does he claim that his confession was coerced by anyone. Moreover, defendant, of his own volition, insisted on talking to the jury in summation and, concerning the robbery, telling them that he \u201cwas sticking the shop up.\u201d \u25a0 V\nThe record clearly indicates that defendant was not compelled to testify because of the confession that Mullen described. (Compare Harrison v. United States (1968), 392 U.S. 219, 20 L.Ed.2d 1047, 88 S.Ct. 2008; Collins v. Brierley (W.D. Pa. 1971), 336 F. Stipp. 1024.) Defendant voluntarily took the witness stand in order to support his theory of defense; and in doing so, reiterated the substance of his confession. It has been held in this and in other jurisdictions that when a defendant takes the witness stand and reiterates under oath matters contained in a statement or confession he has given the police, he is not prejudiced by admission in evidence of that statement or confession' and cannot claim constitutional privileges he voluntarily waives by testifying. (People v. Coddington, 123 Ill.App.2d 351, 259 N.E.2d 382.) Therefore, we conclude that under the circumstances of this case, the error committed by the trial court in admitting evidence of defendant\u2019s confession, without a determination of its voluntariness outside the jury\u2019s presence, was harmless beyond a reasonable doubt. The judgment is affirmed.\nAffirmed.\nSCHWARTZ and McGLOON, JJ., concur.\nWithout changing their meaning or importance, we have rephrased the issues and inverted the order in which they appear in defendant\u2019s brief.\nIn the Apocrypha, The Story of Susanna and the Elders is perhaps the first recorded instance of a motion to exclude witnesses. See May and Metzger, The Oxford Annotated Bible with the Apocrypha, p. 213 (Revised Standard Version 1965); Metzger, An Introduction to the Apocrypha, p. 107 (1957); London, The World of Law, Vol. I, p. 5 (1960); 6 Wigmore, Evidence \u00a7 1837 (3d ed.).\nFor cases of other reviewing courts, see Sweeney v. United States (9 Cir. 1969), 408 F.2d 121; Chandler v. State (1968), 283 Ala. 29, 214 So.2d 306; Commonwealth v. Chase (1966), 350 Mass. 738, 217 N.E.2d 195; State v. McGee (Mo. 1969), 447 S.W.2d 270; Cooper v. State (Fla.App. 1972), 261 So.2d 859; State v. Fouquette (1950), 67 Nev. 505, 221 P.2d 404; Commonwealth v. Collins (1969), 436 Pa. 114, 259 A.2d 160; Miller v. State (Cr. App.Tenn. 1970), 452 S.W.2d 369; Evans v. State (Cr. App. Tex. 1972), 480 S.W.2d 387.", "type": "majority", "author": "Mr. JUSTICE LEIGHTON" } ], "attorneys": [ "Gerald W. Getty, Public Defender, of Chicago, (Michael Henshaw, Shelvin Singer, and James J. Doherty, Assistant Public Defenders, of counsel,) for appellant.", "William J. Scott, Attorney General, of Springfield, and Edward V. Hanrahan, State\u2019s Attorney, of Chicago, (James B. Zagel, Assistant Attorney General, and Robert A. Novelle and Robert Best, Assistant State\u2019s Attorneys, of counsel,) for the People." ], "corrections": "", "head_matter": "The People of the State of Illinois, Plaintiff-Appellee, v. Ezell O. Jenkins, Defendant-Appellant.\n(No. 56814;\nFirst District (Second Division)\nFebruary 27, 1973.\nGerald W. Getty, Public Defender, of Chicago, (Michael Henshaw, Shelvin Singer, and James J. Doherty, Assistant Public Defenders, of counsel,) for appellant.\nWilliam J. Scott, Attorney General, of Springfield, and Edward V. Hanrahan, State\u2019s Attorney, of Chicago, (James B. Zagel, Assistant Attorney General, and Robert A. Novelle and Robert Best, Assistant State\u2019s Attorneys, of counsel,) for the People." }, "file_name": "0588-01", "first_page_order": 612, "last_page_order": 617 }