# People v. Foster

> Illinois Supreme Court · December 21, 1987 · 119 Ill. 2d 69

URL: https://www.frixlaw.com/law-library/cases/9520475

## Case

- **Full name:** The PEOPLE OF THE STATE OF ILLINOIS, Appellee, v. JAMES FOSTER, Appellant
- **Court:** Illinois Supreme Court
- **Decided:** December 21, 1987
- **Citations:** 119 Ill. 2d 69; 115 Ill. Dec. 557; 518 N.E.2d 82; 1987 Ill. LEXIS 275
- **Precedential status:** Published
- **Opinion:** Dissent by Simon
- **Judges:** Ward, Cunningham, Simon
- **Cited by:** 132 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9520475

## How later opinions describe it (automated extraction)

- holding that trial court did not abuse its discretion in finding officer’s hearsay testimony reliable, notwithstanding lack of corroboration, where information was compiled during an official investigation and evidence was never directly challenged
- holding that the trial court did not err in refusing to instruct the jury on involuntary manslaughter where the “record emphatically rejected] the defendant’s assertion that his actions were reckless and not intentional”
- holding that, although it was uncorroborated, a police officer’s testimony was “not inherently unreliable,” in part because “the officer compiled the information during an official investigation”
- holding that, in a sentencing hearing, a hearsay objection goes to the weight, rather than the admissibility, of the testimony

## Opinion text

JUSTICE SIMON, dissenting:
I disagree with the majority’s conclusion that statements given by the defendant in response to interrogation after he had invoked his right to remain silent were properly admitted. His incriminatory statements should have been suppressed as the product of an illegal interrogation initiated after the defendant had asserted his fifth amendment right.
In Miranda v. Arizona (1966), 384 U.S. 436 , 16 L. Ed. 2d 694 , 86 S. Ct. 1602 , the Supreme Court established the procedure to be followed once a suspect in custody invokes his right to silence under the fifth amendment:
“Once warnings have been given, the subsequent procedure is clear. If the individual indicates in any manner, at any time prior to or during questioning, that he wishes to remain silent, the interrogation must cease. At this point he has shown that he intends to exercise his Fifth Amendment privilege; any statement taken after the person invokes his privilege cannot be other than the product of compulsion, subtle or otherwise. Without the right to -cut off questioning, the setting of in-custody interrogation operates on the individual to overcome free choice in producing a statement after the privilege has been once invoked.” 384 U.S. at 473-74 , 16 L. Ed. 2d at 723 , 86 S. Ct. at 1627-28 .
This passage from Miranda and the procedure to be followed was further defined in Michigan v. Mosley (1975), 423 U.S. 96 , 46 L. Ed. 2d 313 , 96 S. Ct. 321 . Under Miranda the admissibility of any statements obtained after the suspect invokes his right to remain silent depends on whether the person’s “ ‘right to cut off questioning’ was ‘scrupulously honored.’ ” ( 423 U.S. at 104 , 46 L. Ed. 2d at 321 , 96 S. Ct. at 326 .) The Court in Mosley determined that the defendant’s right to cut off questioning was scrupulously honored where “the police *** immediately ceased the [initial] interrogation, resumed questioning only after the passage of a significant period of time and the provision of a fresh set of warnings, and restricted the second interrogation to a crime that had not been a subject of the earlier interrogation.'” (Emphasis added.) 423 U.S. at 106 , 46 L. Ed. 2d at 322 , 96 S. Ct. at 327 .
The Court assigned considerable weight to the fact that the second interrogation in Mosley concerned a separate and unrelated offense. (Wentela v. State (1980), 95 Wis. 2d 283, 297-98 , 290 N.W.2d 312 , 319.) This factor “seems critical, for in its absence one is left only with a renewed effort to question by a different member of the same police force, in a different room in the same building, only two hours after Mosley’s assertion of his right not to be questioned.” (Stone, The Miranda Doctrine in the Burger Court, 1977 Sup. Ct. Rev. 99 , 134.) In essence, Mosley exercised his right to remain silent about the first crime, the robberies, and that right was respected. He did not invoke his right to remain silent about the murder, which was entirely unrelated to the robberies, and therefore the subsequent interrogation about the murder did not violate his fifth amendment rights. ■
Recognizing the importance of this factor, in applying Mosley both Federal and State courts have held that once a suspect invokes his fifth amendment right in response to questioning about a crime, subsequent interrogation about that same crime violates the suspect’s constitutional rights. See, e.g., United States v. Olof (9th Cir. 1975), 527 F.2d 752, 754 ; United States v. Clayton (E.D. Wis. 1976), 407 F. Supp. 204, 207 ; Commonwealth v. Taylor (1978), 374 Mass. 426, 435 , 374 N.E.2d 81, 86 ; Commonwealth v. Walker (1977), 470 Pa. 534, 545 , 368 A.2d 1284, 1289-90 . See also United States v. Hernandez (5th Cir. 1978), 574 F.2d 1362, 1369 ; Shaffer v. Clusen (E.D. Wis. 1981), 518 F. Supp. 963, 965 ; United States v. Jakakas (E.D.N.Y. 1976), 423 F. Supp. 564, 569 .
The facts in this case differ significantly from those in Mosley on the critical issue of reinterrogation about the same crime. When Detective Martin and Sergeant Strover began to question the defendant about Simmons’ death, he invoked his right to remain silent. Only three hours later, after consulting with Martin and Strover and learning that the defendant had invoked his fifth amendment right, an assistant State’s Attorney requestioned him about Simmons’ murder, the same crime for which he had already asserted his right to remain silent. Far from being “scrupulously honored,” his right to cut off questioning about Simmons’ death was blatantly ignored, and the resulting statements were therefore inadmissible. The trial court’s refusal to suppress these statements was a serious error requiring reversal of the conviction and a new trial.
The majority also erred in holding that the discovery provisions in Supreme Court Rule 412(a) (107 Ill. 2d R. 412(a)) are not applicable to sentencing proceedings. In People v. Williams (1983), 97 Ill. 2d 252 , cert. denied (1984), 466 U.S. 981 , 80 L. Ed. 2d 836 , 104 S. Ct. 2364 , this court applied our Rule 412(c) to a sentencing hearing. We based our decision upholding the State’s presentation of both opening and closing arguments in the sentencing hearing on the fact that under Rule 412(c) the State has an affirmative duty to disclose to defendant’s counsel mitigating evidence of which it has knowledge and it therefore has the burden of going forward with the evidence in a sentencing proceeding. ( 97 Ill. 2d at 302 .) Having decided that Rule 412(c) applies to sentencing proceedings, there is no justification for holding that the other provisions of Rule 412 are not applicable.
The majority cites People v. DeWitt (1979), 78 Ill. 2d 82 , in support of its assertion that the discovery provisions of our rules are not applicable to sentencing proceedings. In that case the court held that our Rule 411 does not entitle an accused to discovery at a probation revocation hearing. ( 78 Ill. 2d at 86 .) The rule announced in DeWitt was that in the absence of a constitutional requirement, the decision whether to allow discovery at a hearing should be made by comparing the interest of the defendant with the interest of the State. ( 78 Ill. 2d at 87 .) The State’s interest in incarcerating a probationer who committed another crime outweighed the defendant’s interest in conditional liberty. ( 78 Ill. 2d at 87 .) In the instant case, however, the defendant’s fundamental interest in preserving his life obviously outweighs the State’s interest in expediting the sentencing hearing.
The facts surrounding the defendant’s request for discovery further demonstrate the necessity of applying Rule 412(a) to sentencing proceedings. On May 14, 1985, approximately three weeks prior to trial, the defendant filed a motion for discovery of the names and addresses of witnesses the prosecution intended to call at the death penalty hearing. The trial court granted the motion on May 23, over the State’s objection. The State did not comply until June 10, one day before the sentencing hearing began. At that time the prosecutors tendered a list of 28 persons they intended to call in aggravation at the penalty hearing. Defense counsel attempted to contact and interview as many of the 28 witnesses as he could overnight. The next day in court, out of necessity, defense counsel moved for disclosure of the prosecutors’ notes of interviews with the witnesses to aid him in cross-examining them. The trial court refused this request.
The statute governing death penalty hearings requires that each side have a “fair opportunity to rebut any information received at the hearing.” (Ill. Rev. Stat. 1985, ch. 38, par. 9—1(e).) The prosecutors’ notes of prior statements by the witnesses were a valuable tool for cross-examination, particularly in view of the delay in providing a list of witnesses to the defendant. (See Jencks v. United States (1957), 353 U.S. 657, 667 , 1 L. Ed. 2d 1103, 1111 , 77 S. Ct. 1007, 1013 .) Refusing to allow defense counsel access to those notes deprived defendant of a fair opportunity to rebut the witnesses’ testimony in violation of the statute governing the procedures to be followed at death penalty hearings (Ill. Rev. Stat. 1985, ch. 38, par. 9—1(e)). Given our prior application of Rule 412(c) to sentencing hearings, the defendant’s fundamental interest in preserving his life and the requirement that both parties at a death penalty hearing have a fair opportunity to rebut any evidence presented at the hearing, a defendant should be entitled to use the discovery provisions of Rule 412(a) at a sentencing hearing.
Because of these significant errors at both the trial and the sentencing hearing, I would remand this case for a new trial.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9520475. Public record. Not legal advice.