Opposition Brief — Jamal Streeter, Petitioner v. Illinois

No. 17-9238

IN THE

Supreme Court of the United States

JAMAL STREETER , PETITIONER ,

v.

ILLINOIS, RESPONDENT.

On Petition for a Writ of Certiorari

to the Illinois Appellate Court

BRIEF IN OPPOSITION

LISA MADIGAN

Attorney General of Illinois

DAVID L. FRANKLIN

Solicitor General

MICHAEL M. GLICK*

Criminal Appeals Division Chief

RETHA STOTTS

Assistant Attorney General

100 West Randolph Street

Chicago, Illinois 60601

(312) 814-0010

mglick@atg.state.il.us

*Counsel of Record

Attorneys for Respondent

QUESTIONS PRESENTED

1. Whether petitioner unambiguously invoked his right to silence under the

Fifth Amendment before confessing to his involvement in the gang-related murder

of a thirteen-year-old boy.

2. Whether petitioner’s trial counsel was ineffective in failing to submit a

portion of petitioner’s video-recorded interview at a suppression hearing.

i

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED.............................................................................................. i

TABLE OF AUTHORITIES ............................................................................................ iii

STATEMENT .................................................................................................................... 1

REASONS FOR DENYING THE PETITION ................................................................ 3

I.

Petitioner has identified no split in authority affecting any of his claims

and seeks mere error correction ............................................................................. 3

II.

Petitioner’s Sixth Amendment claim premised on the “done talking”

statement was not adequately presented to the state supreme court ................. 4

III.

Petitioner’s claim based on Miller v. Alabama was not pressed or

passed upon in state court ...................................................................................... 5

IV.

The appellate court’s decision does not conflict with this Court’s

precedent .................................................................................................................. 6

CONCLUSION .................................................................................................................. 8

ii

TABLE OF AUTHORITIES

Page(s)

Cases:

Alvarez v. State,

15 So. 3d 738 (Fla. Dist. Ct. App. 2009) ................................................................ 7

Berghuis v. Thompkins,

560 U.S. 370 (2010) ................................................................................................ 6

Commonwealth v. Lopez, No. BRCR2010-01132, 2012 WL 832581

(Mass. Super. Ct. Bristol Cty. Feb. 28, 2012) ....................................................... 7

Davis v. United States,

512 U.S. 452 (1994) ................................................................................................ 6

Fare v. Michael C.,

442 U.S. 707 (1979) ................................................................................................ 5

Howell v. Mississippi,

543 U.S. 440 (2005) ................................................................................................ 4

Illinois v. Gates,

462 U.S. 213 (1983) ................................................................................................ 5

Joe v. State,

66 So. 3d 423 (Fla. Dist. Ct. App. 2011) ................................................................ 7

Jones v. State,

No. 1970, 2017 WL 3301481 (Md. Ct. Spec. App. Aug. 3, 2017)

(unreported) ............................................................................................................ 7

Miller v. Alabama,

567 U.S. 460 (2012) ................................................................................................ 5

O’Sullivan v. Boerckel,

526 U.S. 838 (1999) ................................................................................................ 4

People v. Huver,

No. 274099, 2008 WL 2066044 (Mich. Ct. App. May 15, 2008)

(unpublished) .......................................................................................................... 7

People v. Lowin,

827 N.Y.S.2d 782 (N.Y. App. Div. 2007)................................................................ 8

iii

Rockford Life Ins. Co. v. Ill. Dep’t of Revenue,

482 U.S. 182 (1987) ............................................................................................ 3

Sanchez v. Gautier,

283 U.S. 798 (1931) ............................................................................................ 3

State v. Bird,

No. CA2002-05-106, 2003 WL 21135272 (Ohio Ct. App.) (unreported) ............. 8

State v. Ortega,

798 N.W.2d 59 (Minn. 2011) .................................................................................. 8

United States v. Mills,

122 F.3d 346 (7th Cir. 1997) .................................................................................. 7

Yee v. City of Escondido,

503 U.S. 519 (1992) ................................................................................................ 5

Rules:

Sup. Ct. R. 10 .............................................................................................................. 3, 10

iv

STATEMENT

While in police custody, petitioner confessed to his involvement in the murder of

a thirteen-year-old boy in a gang-related drive-by shooting. Pet. App A 10-12.

Petitioner moved to suppress his confession as obtained in violation of his Fifth

Amendment privilege against self-incrimination, alleging that he invoked his right to

remain silent by telling police “I’ve got nothing to say.” Common Law Record Vol. I at

C107. In support, petitioner submitted a portion of his video-recorded interview

showing him seated at a table in an interview room across from a detective, hanging his

head and saying, “I ain’t got nothing to say.” Def. Mot. to Suppress Exh. 1 at

2011.10.14 00:05:14-15.

After hearing testimony and reviewing the recording, the trial court denied the

motion, finding that petitioner did not unequivocally invoke his right to remain silent

and that his statement was “equally amen[]able, if not more amen[]able to th[e]

interpretation” that he had “nothing else to tell [the police]” and would “keep telling

[them] the same thing” if they continued to interrogate him. Report of Proceedings

Vol. I at U20. Petitioner was convicted after a jury trial at which his confession was

admitted and he was sentenced to forty years of imprisonment. Pet. App. A 2, 10-12.

On appeal, petitioner argued that the “nothing to say” statement constituted a

“clear[] invocation” of his Fifth Amendment privilege. Def. Br. 13. He also argued that

he was denied his Sixth Amendment right to the effective assistance of counsel due in

part to his trial counsel’s failure to present additional evidence at the suppression

hearing. Id. at 41. Specifically, he argued that counsel’s performance was deficient

1

because he failed to submit a portion of the video-recorded interview in which petitioner

told a detective, “I am done talking.” Id. at 42.

The Illinois Appellate Court affirmed in an unpublished, nonprecedential

opinion. The court rejected the Fifth Amendment claim, holding that the “nothing to

say” statement was not an unequivocal invocation of the right to silence:

[W]e do not find that the evidence supports defendant’s argument

that he invoked his right to silence on October 14, 2011, at 12:05 a.m.

Based on our repeated review of this portion of the videotaped

interrogation and the context of the circumstances leading up to

defendant’s response, we find that defendant did not unequivocally invoke

his right to silence. Rather, the videotaped interrogation demonstrates

that between October 13, 2011, at 11:40 p.m. to October 14, 2011, at 12:02

a.m., a detective engaged in conversation with defendant and tried to

convince him to tell the truth about the shooting. Following this 22minute conversation, at 12:05 a.m., the detective asked defendant to

“[p]ull your face up.” We find that defendant’s response, “I ain’t got

nothing to say,” was without specificity, and did not indicate a desire to

end all questioning so as to rise to the level of an unambiguous and

unequivocal invocation of the right to silence. It is unclear from

defendant’s response whether he wished to invoke his constitutional right

to silence or whether he, after having spoken with the detective already

for 22 minutes, had nothing else to tell the detective.

Pet. App. A 15-16.

The court also rejected the Sixth Amendment claim under Strickland v.

Washington, 466 U.S. 668 (1984), holding that the “done talking” statement was not an

unequivocal invocation of the right to silence:

According to defendant, his trial counsel should have introduced the

recording on October 12, 2011, at 7:58 p.m. where a detective dismissed

defendant’s question regarding whether his family knew where he was,

and defendant responded, “I’m done.” As the detective continued to

question him, defendant said, “I’m done talking.” Based on our careful

review of this portion of the videotaped interrogation and the context of

the circumstances leading up to defendant’s response, we find that

defendant did not unambiguously invoke his right to silence. It is unclear

2

from defendant’s response whether he wished to invoke his constitutional

right to silence or whether he was merely resisting answering questions

from the specific detective with whom he was growing visibly frustrated.

We thus find that defendant’s response did not indicate a desire to end all

questioning so as to rise to the level of an unambiguous and unequivocal

invocation of the right to silence.

Pet. App. A 26.

Petitioner then filed a petition for leave to appeal (PLA) to the state supreme

court that raised the Fifth Amendment claim but referenced the Sixth Amendment

claim only in a footnote and the procedural history section, without citing Strickland or

the Sixth Amendment. Def. PLA at 2 n.1, 8. The Illinois Supreme Court denied leave

to appeal. Pet. App. B.

REASONS FOR DENYING THE PETITION

I.

Petitioner has identified no split in authority affecting any of his

claims and seeks mere error correction.

Petitioner has identified no split in authority affecting any of his claims.

Instead, he seeks mere error correction. Pet. at 2 (framing issue as whether

“invocations [of] right[] to remain silent” were “clear and [un]ambiguous”). Error

correction is not a compelling reason for granting a writ of certiorari. See Sup. Ct.

R. 10 (“A petition for a writ of certiorari is rarely granted when the asserted error

consists of . . . the misapplication of a properly stated rule of law.”); see also

Rockford Life Ins. Co. v. Ill. Dep’t of Revenue, 482 U.S. 182, 184 n.3 (1987) (issues

that have not divided courts are “not the type that would usually merit our

attention if presented in a petition for certiorari”); Sanchez v. Gautier, 283 U.S.

798, 798 (1931) (dismissing writ due to absence of split in authority).

3

II.

Petitioner’s Sixth Amendment claim premised on the “done talking”

statement was not adequately presented to the state supreme court.

Because petitioner did not submit the portion of the video-recorded interview

containing the “done talking” statement at the suppression hearing, he cited that

statement on appeal only in support of his Sixth Amendment claim that his trial

counsel provided ineffective assistance, Def. Br. 41-43 — not in support of his distinct

Fifth Amendment claim that police questioned him in violation of his right to remain

silent, Def. Br. 12-16; see also Def. PLA 2 n.1 (acknowledging that the “done talking”

statement “was raised on appeal as a matter of ineffective assistance of counsel

because the video recording of it was not offered as evidence at the motion to

suppress”). But petitioner’s subsequent state supreme court PLA did not clearly

present the Sixth Amendment claim: he cited neither Strickland nor the Sixth

Amendment, and he referenced the claim only in a footnote and in the procedural

history section of his PLA. Def. PLA 2 n.1, 8. Because petitioner did not adequately

present the Sixth Amendment claim to the state supreme court, this Court should

decline to review it. See Howell v. Mississippi, 543 U.S. 440, 441 (2005) (dismissing

writ of certiorari as improvidently granted where petitioner failed to raise claim in

state supreme court); see also O’Sullivan v. Boerckel, 526 U.S. 838, 845 (1999)

(noting that PLA is part of “Illinois’ established, normal appellate review

procedure”).

4

III.

Petitioner’s Miller v. Alabama claim was not pressed or passed upon

in state court.

Petitioner asserts, citing Miller v. Alabama, 567 U.S. 460 (2012), that “his

brain was not fully developed” when he was questioned and that he was unable to

“understand” what he needed to do to invoke his right to silence. Pet. 12. To the

extent that petitioner asks this Court to grant certiorari to consider whether the

invocation of the right to silence should be governed by a different standard when the

suspect is a juvenile, this Court should decline to do so because no such argument

was presented to or addressed by either the state appellate court or the state supreme

court. See Yee v. City of Escondido, 503 U.S. 519, 533 (1992) (“[T]he Court has, with

very rare exceptions, refused to consider petitioners’ claims that were not raised or

addressed below.”); Illinois v. Gates, 462 U.S. 213, 219 (1983) (discussing “rule

against . . . deciding claims ‘not pressed nor passed upon’ in state court”). Moreover,

this Court has already declined to adopt juvenile-specific standards for invoking the

right to silence, see Fare v. Michael C., 442 U.S. 707, 723-24 (1979), and in any event

petitioner would not benefit from a juvenile-specific standard because he was 18

years old at the time he was questioned, Pet. 12, and thus not a juvenile as defined by

this Court, see Miller, 567 U.S. at 465 (using “juvenile” to describe those “under the

age of 18”).

5

IV.

The appellate court’s decision does not conflict with this Court’s

precedent.

The rule the appellate court applied — that an “invocation of the right to

silence . . . must be unambiguous, unequivocal and clear,” Pet. App. A 14-15 — is

dictated by this Court’s precedent. See Berghuis v. Thompkins, 560 U.S. 370, 381

(2010) (“There is good reason to require an accused who wants to invoke his or her

right to remain silent to do so unambiguously.”). Contrary to petitioner’s suggestion,

Pet. 11, the appellate court did not hold that he failed to invoke his right to silence

because it determined that he lacked sufficient reasons for doing so. The court

merely noted that petitioner’s statements were open to varying interpretations given

“the context of the circumstances” — either that he “had nothing else to tell the

detective” or that he “was merely resisting answering questions from the specific

detective with whom he was growing visibly frustrated” — and thus were insufficient

to alert police that he wished to invoke his right to remain silent. Pet. App. A 15-16,

26. The court’s consideration of how a reasonable officer would have understood

petitioner’s statements under the circumstances was proper under this Court’s

precedent. See Davis v. United States, 512 U.S. 452, 459 (1994) (holding, in right-tocounsel context, that whether suspect has invoked right is “objective inquiry” that

turns on whether he “articulate[d] his desire . . . sufficiently clearly that a reasonable

police officer in the circumstances would understand”); Thompkins, 560 U.S. at 381

(“[T]here is no principled reason to adopt different standards for determining when

an accused has invoked the Miranda right to remain silent and the Miranda right to

counsel at issue in Davis.”).

6

Even assuming the appellate court reached the wrong result, an intermediate

appellate court’s factbound misapplication of a well-established legal rule in a

nonprecedential opinion would not warrant certiorari review. See Sup. Ct. R. 10 (“A

petition for a writ of certiorari is rarely granted when the asserted error consists of . .

. the misapplication of a properly stated rule of law.”). Here, however, the appellate

court correctly determined that neither statement constituted an unambiguous

invocation of the right to silence under the circumstances of petitioner’s case. See,

e.g., United States v. Mills, 122 F.3d 346, 350-51 (7th Cir. 1997) (“I don’t got nothing

to say” was not unambiguous assertion of right to silence because it could be

interpreted as “general expression of annoyance”); Joe v. State, 66 So. 3d 423, 426

(Fla. Dist. Ct. App. 2011) (statement that included “I ain’t got nothing to say” was

not unequivocal invocation of right to silence); Alvarez v. State, 15 So. 3d 738, 742,

745-46 (Fla. Dist. Ct. App. 2009) (“I really don’t have nothing to say” was not

unambiguous invocation of right to silence because it could mean that defendant

“had nothing to say because he knew nothing about the crimes, not because he was

refusing to talk”); Jones v. State, No. 1970, 2017 WL 3301481, at *6 (Md. Ct. Spec.

App. Aug. 3, 2017) (unreported) (“I’m done talking to—” was ambiguous);

Commonwealth v. Lopez, No. BRCR2010-01132, 2012 WL 832581, at *6 (Mass. Super.

Ct. Bristol Cty. Feb. 28, 2012) (“[D]efendant’s several statements . . . that he was

‘done talking’ did not comprise an invocation of his right to silence.”); People v.

Huver, No. 274099, 2008 WL 2066044, at *2 (Mich. Ct. App. May 15, 2008)

(unpublished) (statement that included “I’m done talking” was not unequivocal

7

assertion of right to silence); State v. Ortega, 798 N.W.2d 59, 70 (Minn. 2011) (“I ain’t

got nothing else to say” was ambiguous because it “could be interpreted as either a

general refusal to answer the agents’ questions or an expression of unwillingness to

discuss a specific topic”); People v. Lowin, 827 N.Y.S.2d 782, 784 (N.Y. App. Div.

2007) (statement that included “I’m done talking,” when considered in context,

“merely reflected defendant’s unwillingness to change his story” and thus was

insufficient to invoke right to silence); State v. Bird, No. CA2002-05-106, 2003 WL

21135272, at *4 (Ohio Ct. App.) (unreported) (“I’m done talking about it” did not

express “unequivocal desire” to end questioning).

CONCLUSION

The petition for a writ of certiorari should be denied.

LISA MADIGAN

Attorney General of Illinois

DAVID L. FRANKLIN

Solicitor General

MICHAEL M. GLICK*

Criminal Appeals Division Chief

RETHA STOTTS

Assistant Attorney General

100 West Randolph Street

Chicago, Illinois 60601

(312) 814-0010

mglick@atg.state.il.us

*Counsel of Record

Attorneys for Respondent

NOVEMBER 2018

8

CERTIFICATE OF FILING AND SERVICE

The undersigned, a member of the Bar of this Court, certifies that, in

compliance with Rules 29 and 33.2, she caused an original and ten copies of

respondent’s Brief in Opposition to be filed with the Clerk, Supreme Court of the

United States, Washington, DC 20543, and that she also caused to be served one copy

of the same to:

Jamal Streeter, M20580

Menard Correctional Center

P.O. Box 1000

Menard, Illinois 62259

by depositing the same in the United States mail box at 100 West Randolph Street,

Chicago, Illinois, 60601, on this 7th day of November 2018, first-class postage prepaid

and addressed.

All parties required to be served have been served

s/ Retha Stotts

Counsel for Respondent