dissenting:
I object to our court’s condoning a lawless act of the State in this case by invoking the “harmless error” doctrine.
The first ten Amendments to the Constitution of the United States were epochal achievements in the history of efforts to protect human freedom. It is ironic that today many people misinterpret our courts’ preservation of the rights therein mandated as frustrations or even abortions of justice.
Here, a violation of the Fourth Amendment is involved. It was restated nearly verbatim in the early Constitutions of Illinois and now has been expanded to meet current problems but in no way diluted. The protection of privacy intended by its framers is a highly valued right, which like many others, is probably prized more when lacking than when it can be taken for granted. Mr. Justice Brandéis described the “right to be let alone” as “the most comprehensive * * * and the * * * (one) most valued by civilized man.” Olmstead v. United States (1928), 277 U.S. 438, 478, (dissenting opinion).
This right is an issue in this case because evidence was admitted during the trial which was obtained by warrantless seizure without probable cause. Its admission was a constitutional error under both the United States and the Illinois Constitutions. The resultant question is whether the conviction which resulted should be affirmed or reversed under the doctrine of harmless error.
The United States Supreme Court in Chapman v. California (1967), 386 U.S. 18, 17 L.Ed.2d 705, 87 S.Ct. 824, 24 ALR3d 1065, admonished against giving too much emphasis to “overwhelming evidence” of guilt, stating that constitutional errors affecting the substantial rights of the aggrieved party could not be considered to be harmless. In his opinion concurring in the result, Justice Stewart quoted from Glasser v. United States (1942), 315 U.S. 60, 76, 62 S.Ct. 457, 467, 86 L.Ed. 680: “The right to have the assistance of counsel is too fundamental and absolute to allow court to indulge in nice calculations as to the amount of prejudice arising from its denial.” He expanded on this point, describing other constitutional errors which, by his reasoning, require automatic reversal.
If anything, Illinois courts have been even more strict in their treatment of constitutional errors. For example, in People v. Stoval (1968), 40 Ill.2d 109, the Supreme Court of Illinois reversed convictions of burglary and theft because there was a question of a conflict of interest in that defendant’s counsel also represented the victim. The court did so even though there was no showing that the accused’s defense was not conducted with diligence and resoluteness.
The prosecuting witness testified that defendant enticed her into the Christian Church and there committed the acts for which he was indicted. No other witness saw defendant on the date of the alleged crime. The only corroboration of the testimony of the prosecuting witness relative to the facts was that she left the Wyatt home, arrived at the drug store, picked up the medicine and returned to the Wyatt home. The prosecuting witness identified the boots and tee shirt as having been worn by the defendant at the time of the alleged offense. Defendant did not testify in his own behalf. His defense was an alibi.
A brother-in-law of the defendant testified that defendant was with him at his home in Flora from 3:00 P.M. until dark and then went with him to the Four Sisters Manufacturing Company in Flora, Illinois, where he was employed as a janitor and helped him clean up the factory until about 10:30 P.M., when he took him back to the trailer home. He also testified that he gave defendant a pair of boots on the same day which were offered in evidence as defendant’s Exhibits 1 and 1A. Such boots were not of the type admitted into evidence on behalf of the People.
A sister of the defendant testified to defendant’s whereabouts from about 3:00 P.M. until about 20 minutes to 8:00 P.M., and said she saw him later the same night in company with his brother-in-law at the Four Sisters Manufacturing Company.
Another of defendant’s sisters saw about 9:00 P.M. with the brother-in-law at the Four Sisters Factory.
A People’s rebuttal witness testified that the records of the Four Sisters Company showed that the brother-in-law went to work at 9:00 A.M. on August 9 and finished his work at 5:15 P.M. In surrebuttal the brother-in-law testified that the time record was incorrect and that he had in fact worked for Bill Given, a Texaco distributor, on August 9 until noon.
After the State and the defendant had rested and after the conference on instructions, defendant made a motion to reopen the case and allow additional evidence from a witness who was not previously available. An offer of proof was made. Nell Given, wife of William Given, the Texaco distributor, testified that she kept the books for her husband and that defendant’s Exhibits 3, 4, 5 and 6 showed that the brother-in-law worked for William Given until noon on August 9, 1969, and withdrew gas from the bulk station and delivered the same to various customers. The motion to reopen was denied, the offer of proof was denied, and the mentioned exhibits were not admitted.
Before it can be said that a Federal constitutional error can be held .harmless, a reviewing court must be able to declare beyond a reasonable doubt that the error did not contribute to the finding of guilty. (Chapman v. California, supra.) In the present case the illegally seized evidence used in conjunction with and in cooperation with the sole witness’s testimony so plainly bolstered the evidence for the prosecution that .it is impossible to declare beyond a reasonable doubt that its admission did not contribute to the finding of guilty. In my opinion, the rationale of our Supreme Court in the case of People v. Kalpak, 1 Ill.2d 411, compels reversal of the case at bar because the facts are so similar. In Kalpak, one Johnson, a co-defendant of Kalpak, was convicted of the crime of abortion on the testimony of the prosecutrix alone who identified him as the one who performed the abortion upon her and on the admission into evidence of certain items found on Johnson’s premises as a result of an illegal search and seizure. Our Supreme Court said at page 428:
“# * # A defendant, whether guilty or innocent, is entitled to a fair, orderly and impartial trial in accordance with our laws. Under our system of jurisprudence, there is not one form of trial for a guilty person, and a different form for an innocent person. (People v. Galloway, 7 Ill.2d 527; People v. Stanko, 407 Ill. 624.) Therefore, although there was other evidence tending to establish Johnson’s guilt, we are compelled to reverse the judgment of the criminal court as to him and remand the cause for a new trial.”
Thus we see that the majority opinion in the present case reaches an entirely different result than that of our Supreme Court on a case involving a similar question of fact and involving the same question of law, i.e., harmless error.
The language of our Supreme Court in People v. Catavdella, 31 Ill.2d 382, at 386-387, is also pertinent to this case:
“The State contends that even if the search of the trunk be held unlawful the conviction can still be sustained on the ground that there was other evidence in the record to establish the guilt of the defendants beyond a reasonable doubt. Specifically, it is contended that the items found in the back seat of the car were admissible as the product of a search incident to a lawful arrest without a warrant and that proof that the defendants were in possession of these articles was sufficient to establish their guilt. In effect, the State asks us to hold that the error in the admission of the items found in the trunk was harmless error. In Fahy v. Connecticut, 375 U.S. 85, 84 S.Ct. 229, 11 L.Ed.2d 171, the Supreme Court held that on the facts of that case the erroneous admission of unlawfully obtained evidence was prejudicial and therefore found it necessary to decide whether the erroneous admission of evidence obtained by an illegal search and seizure could ever be subject to the rule of harmless error. The court stated that the test was not whether there was sufficient other evidence upon which the defendant could have been convicted, but whether there was a reasonable possibility that the evidence complained of might have contributed to the conviction. It seems clear in the present case that the erroneous admission in evidence of the television set, the guns, and the quilt found in the trunk, all of which were identified by the burglary victim as property taken from his home, could have contributed to the finding of guilty.”
In People v. Smith, 38 Ill.2d 13, our Supreme Court said at page 17:
“The test of whether error is harmless is not whether there is other evidence of guilt or even whether other proof of guilt is overwhelming. (Chapman v. California, 386 U.S. 18, 17 L.Ed.2d 705, 87 S.Ct. 824, 827, footnote 7.) In spite of the other evidence in the record we are unable to say, beyond a reasonable doubt, as commanded by Chapman that Lemmon’s identification of defendant as one of the men who made the sale did not contribute to the finding of guilty. The officers did not see the sale; Lemmon did not testify; and the only direct evidence linking defendant with the sale was the testimony of Sibley. Under these circumstances it is possible that Lemmons identification might have played a part in the finding of guilty. Because of this error the judgment must be reversed.”
It appears to me that without question the foregoing opinion of our Supreme Court compels a conclusion opposite to that of the majority opinion, as do the opinions of our United States Supreme Court.
In Bumper v. North Carolina, 391 U.S. 543, 20 L.Ed.2d 797, 88 S.Ct. 1788, the United States Supreme Court held that the admission into evidence against one charged with rape and felonious assault of a rifle obtained by an unlawful search and seizure in his home was not harmless error even though two of the accused’s victims positively identified the accused. The words of Justice Harlan in his concurring opinion are particularly appropriate.
“Finally, if I were persuaded that the admission of the gun was “harmless error, I would vote to affirm, and if I were persuaded that it was arguably harmless error, I would vote to remand the case for state consideration of the point. But the question cannot be whether, in the view of this Court, the defendant actually committed the crimes charged, so that the error was “harmless’ in the sense that petitioner got what he deserved. The question is whether the error was such that it cannot be said that petitioner’s guilt was adjudicated on the basis of constitutionally admissible evidence, which means, in this case, whether the properly admissible evidence was such that the improper admission of the gun could not have affected the result.
I do not think this can be said here. The critical question was the identity of the perpetrator of these crimes. The State introduced eyewitness identification of petitioner by his two victims, and a gun with which there was evidence these victims were shot, together with testimony that it had been found in petitioner’s place of abode. The jury could, of course, have found the testimony of the victims credible beyond a reasonable doubt, and convicted petitioner on this basis alone. But it might well not have. The addition of a tangible cross-check linking petitioner with the crime can hardly be said, from the judicial vantage point, to have been harmless surplusage.”
In the present case also, the jury could have found the testimony of the prosecuting witness credible beyond a reasonable doubt and con-convicted him on that basis alone, but then it might not have.
In this day and age many of our citizens believe that a person charged with crime is not entitled to due process of law because it is more important that he receive his punishment than that our citizens be protected from arbitrary and unlawful acts of the government. This type of thinking in a judicial opinion, disguised under the “harmless error” doctrine, is tantamount to an invitation by the courts for our law enforcement officials to violate the rights of individuals. The courts pay lip service to the Constitution while at the same time condoning its violation. The end result is obvious.
Long before anyone ever heard of the Warren Court and during a time in the history of our country when both liberals and conservatives believed that our State and Federal Constitutions were a bulwark against oppressive action by the State, our Supreme Court in People v. Castree (1924), 311 Ill. 392 at 406, had this to say:
“Our State constitution guarantees to every person charged with crime, — and it makes no distinction between the guilty and the innocent, — the right to a trial by a jury of twelve men, to be confronted by the witnesses against him, face to face, not to be compelled to give evidence against himself, and to be secure in his person, house, papers and effects against unreasonable search and seizure. The framers of the Federal constitution, as originally presented, did not include in it these provisions, but they were added on the demand of the States to which it was submitted for adoption. They were then deemed necessary for the protection of the individual against the oppressive action of the government, not only of the indefinite aggregation of authority which has its seat at the capital, but of every official who administers a part of the functions of government. They were adopted not to enable the guilty to escape the consequences of their crime nor only to be availed of by the innocent, but they were regarded as essential to the protection of every person against whom a charge of crime was made, from the arbitrary, tyrannical and unlawful conduct of the representatives of the government. A consideration of the origin, history and use of writs of assistance in England, of their use in this country, and the evolution of the fourth amendment to the Federal constitution, manifests the importance of this safeguard of the citizen against unreasonable searches and seizures of his person or property, and the necessity that it shall not be frittered away by the courts by a narrow and illiberal construction and a willing blindness and indifference to its violation.”
The majority opinion in this case appears to depart from constitutional standards because of the particularly revolting crime involved. It is no more than a human and natural tendency to want to make sure that the perpetrators of such crimes are punished. However, inestimable damage can be wreaked upon our constitutional rights by using one type of standard for one type of crime and another standard for another type of crime. The risk is far too great to be ignored, and the implication that a sort of omniscience can be applied to certain cases, allowing evidence and/or procedures normally rejected because of appearance of guilt or urgency, or likelihood that the accused will be convicted in any event, is completely out of keeping with our history and theory of justice.
I would remand this case for a new trial.