Petition — Schott v. Illinois

upreme Court, U. S,

FILED

No DEC 28 1976

MICHAEL RODAK, JR.. CLER i

In the

Supreme Court of the United States

OctosreR Term, 1976

76-894%

ANDREW P. SCHOTT, JR., JOHN L. LEE, and

JAMES E. SUTTON,

Petitioners,

vs.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

APPELLATE COURT OF ILLINOIS,

SECOND DISTRICT

JULIUS LUCIUS ECHELES

CAROLYN JAFFE

35 East Wacker Drive

Chicago, Illinois 60601

Attorneys for Petitioners.

EE SE A RE A, TS

UNITED STATES LAW PRINTING CO., CHICAGO, ILLINOIS 60618 (312) 525-6581

ee ee ve ee sO

INDEX

PAGE

Judgment and Opinion Below 20.000 ..............eeeeeeseeeeeeeeenes 2

PUMIMMIOCE OE TIS COUEE ancctcnicccceccccccscscccnsssonacccnsesessceeses 2

Questions Presented for Review 22.2..0.........cccceceeceeeeeeeeees 2

Constitutional Provisions Involved _..0......000. eee. 3

Raising the Federal Questions Below 0.00.00... 4

I OE Te I ivcisseecnsevcnnsesenenrteesbsilinnintmnnetintinns 4

ROUEN SUERTE icnicts in csesinsicatasceceenbiensddsteicaiatenmessiatiiesaidinimnonln 6

Evidence at hearing on motion to suppress evidence — 6

Reasons for Granting the Writ) ......000.........cccceecee eee 10

Fe TI | idnicicceicemisinsinnecctctinciimmicinineiaien 10

1. Petitioners were deprived of their constitutional

right to effective assistance of counsel 12

A. This Court should grant certiorari in order to

re-examine the minimum due process standards

applicable to determining the minimum ealiber

of professional legal representation which the

Constitution requires the States to assure defen-

Ey Te EE IID» seickenncseeicnctnnicedeneticeciicicannen

The question whether a federal constitutional

right was waived is itself a federal question,

such that this Court should look beyond the con-

clusions of the Appellate Court that certain is-

sues were waived for failure to be raised or pre-

served below. Alternatively, if such ordinarily

would constitute waiver, this doctrine cannot

12°

il

PAGE

constitutionally be applied in the face of serious

and substantial allegations attacking the compe-

tency and effectiveness of counsel, where part of

the grounds for attacking counsel’s competency

rests on his failure to have taken various ap-

propriate actions at trial, including the preser-

vation of such questions for review ....0............... 12

2. Prejudicial publicity about petitioner Schott’s

arrest during the trial was responsible for depriving

petitioners of a fair trial in derogation of their con-

stitutional rights. The method of jury interrogation

adopted by the trial judge is inconsistent with the fed-

erally required due process standards heretofore

Ce TF Gare I | Sasirticcisitcicsenittideteieetrionins 18

3. Petitioners’ Fourth Amendment rights against

unreasonable search and seizure were violated where

they were stopped in a car on the highway solely on the

basis of a police radio message containing a description

not sufficiently similar to them and their car to justify

a lawful ‘‘stop’’ or arrest, and physical evidence seized

as a direct result of that arrest was used at their trial

Oe I ND shstreaieseccimtedeseninebaceisiccialencnaiieceanie . 21

STIUIEIN © © sctansonsenssosiaieistetinnainsaitianeseeenpmelidetaecbemasenadiises 27

Appendices :

Appendix A—Appellate Court Opinion ..........App. 1

Appendix B—Order denying petition for re-

PIII sicsssasesesccnmsnabvbnintiuibdeasisanctashienisatacabiesiasiauaiacte App. 19

Appendix C—Order denying petition for leave

Oe I cicsinicd ieiicininiatiacteldndicdeditinkinii ec! App. 2

Appendix D—Map of Rock Falls-Sterling area App. 21

ill

AUTHORITIES CITED

Cases

PAGE

Beasley v. United States, 491 F.2d 687 (6 Cir. 1974) ....15, 17

Bollenbach v. United States, 326 U.S. 607 (1946) 0... 11

Bruce v. United States, 379 F.2d 113 (D.C. Cir.

aa aha cca acted aaa aus tetiadinsabeniten veseeee dy 15, 17

Chapman v. California, 386 U.S. 18 (1967) .000 26

Diges v. Welch, 148 F.2d 667 (D.C. Cir. 1945) ........... 15

Farese v, United States, 428 F.2d 178 (5 Cir. 1970) .... 20

ee Re 17

Goodwin v. Cardwell, 432 F.2d 521 (6 Cir. 1970) .0000.... 12

Henry v. Mississippi, 379 U.S. 443 (1965) 2... 17

Henry v. United States, 361 U.S. 98 (1959) 00. 22, 25

Herring v. Estelle, 491 F.2d 125, rehearing denied, 493

SE I I, III eericticsecesatnentenscensesinstionerensactincsoneen 15

Irvin v. Dowd, 366 U.S. 717 (1961) ...................cccccsccseres 19

Jackson v. Denno, 378 U.S. 368 (1964) —.000002 17

Lee v. Hopper, 499 F.2d 456 (5 Cir. 1974) 200000... 12

Mallory v. United States, 354 U.S. 440 (1957) _.......... 24

Mapp v. Ohio, 367 U.S. 643 (1961) 2.0... eeeeeeeees 26

Margoles v. United States, 407 F.2d 727 (7 Cir. 1969). 19

McQueen v. Swenson, 498 F.2d 207 (8 Cir, 1974) ........ 17

Moore v. United States, 432 F.2d 730 (3 Cir. 1970) ....12, 16

Noble v. Sigler, 351 F.2d 673 (8 Cir. 1965) .. 0000... 17

People v. Cain, 36 L1.2d 589, 224 N.K.2d 786 (1967) . 19

People v. Ibarra, 60 Cal.2d 460, 34 Cal. Rptr. 863, 386

SE TET TUTE cncciusbaseaesicenactsirtniiiniictcnnidociiniaeoemanetininainichinnioee 13

iv

PAGE

People v. Moore, 6 Ill. App.3d 932, 287 N.E.2d 130 (1

IN MIE sess nich aaeelc ai alae aisha bededonessionseaeanbiiectiiiainadia . &

Rideau y. Louisiana, 373 U.S. 723 (1963) 00000000... aaah 19

Rios v. United States, 364 U.S. 253 (1960) 0... 22

Scott v. United States, 427 F.2d 609 (D.C. Cir. 1970). 13,

15,17

United States v. Dellinger, 472 F.2d 340 (7 Cir. 1972) .. 19

United States v. Marshall, 488 F.2d 1169 (9 Cir. 1973) 12

United States v. Hammonds, 425 F.2d 597 (D.C. Cir.

III, | sascha sibs hdc <demesiadapheeoneaiiiasagabsabebesiigiesipsenitanassasadieiiiaees 16

United States ex rel. McLemore v. Russell, 371 F.2d

554 (3 Cir. 1967) _............ VadsnealtsescutssiaiietieieideamianacaerLioa ae

United States ex rel. Williams v. Twomey, 510 F.2d

Se Oe I EEE: ‘cccutedticertisomssicerinbcnenciiies sdcbehiedeiasidelcnicdaamditl 15

West v. Louisiana, 478 F.2d 1026 (5 Cir. 1973) 200000. )=—16

Whiteley v. Warden, 401 U.S. 560 (1971) —....... 22, 23

Wilson v. Phend, 417 F.2d 1197 (7 Cir. 1969) ............ 12,16

Worley v. Swenson, 386 F.2d 186 (8 Cir. 1967) 2.000... 17

Wrightson v. United States, 222 F.2d 556 (D.C. Cir.

ee scien igarabes inladaseeaieiacancauentealaide ssidibeeamibdeaiaudad 26

Constitution

Fourth Amendment to United States Constitution .... 3, 4,

21, 22

Sixth Amendment to United States Constitution ........ 3,4

Fourteenth Amendment to United States Constitution 4

Statute

Sec. 12-4, Chap. 38, Ill. Rev. Stats. ..............cccc.ccccccscoees d

Other Authorities

Burger, The Special Skills of Advocacy: Are Special-

ized Training and Certification of Advocates Es-

sential to Our System of Justice, 42 Forpuam L. Rev.

SET SERIDUEUED © sebcinssinssccdssvsbshsssecdcansantbaeiaelcasaniaseiintemasbdsiihaias pideinaah 11, 16

“Bt the

Supreme Court of the United States

Ocroser “erm, 1976

No.

ANDREW P. SCHOTT, JR., JOHN L. LEE, and

JAMES E. SUTTON,

Petitioners,

VS.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

APPELLATE COURT OF ILLINOIS,

SECOND DISTRICT

Petitioners, Andrew P. Schott, Jr., John L. Lee, and

James EK. Sutton, respectfully pray that a Writ of Cer-

tiorari be issued to the Appellate Court of Illinois, Second

District, to review its decision affirming judgments of con-

viction in the 15th Judicial Cireuit Court, Lee County, Ili-

nois, adjudging petitioners guilty of the offenses of armed

robbery and aggravated battery.

2

Judgment and Opinion Below

On June 7, 1976, the Illinois \ppellate Court, Second Dis

trict, rendered an opinion affirming petitioners’ convie-

tions, No. 75-8, reported at 39 Ill. App. 3d 266, 350 N.E. 2«

49. A copy of the Appellate Court’s opinion is attached

hereto as Appendix A. A timely petition for rehearing

was denied on July 16, 1976 (App. B), and a petition for

leave to appeal to the Illinois Supreme Court, timely filed,

was denied on September 29, 1976 (No. 48775). (App. C)

Jurisdiction of this Court

The judgment sought to be reviewed (the Llinois Su-

preme Court’s denial of the petition for leave to appea!)

was entered on September 29, 1976. This petition for Writ

of Certiorari is filed within 90 days from said denial. Juris-

diction of this Court is invoked under Title 28, U.S. Code,

see. 1257(3), and Rule 22 of the Rules of this Court.

Questions Presented for Rcview

1, Were petitioners deprived of their constitutional

right to effective assistance of counsel?

(.\) Should this Court grant Certiorari in order

to re-eXaimine the minimum due process standards ap-

plicable to determining the minimum caliber of pro-

fessional legal representation which the Constitution

requires the States to assure defendants in criminal

trials!

(B) Is not the question whether a federal constitu-

tional rigit was waived itself a federal question, such

that this Court should look beyond the conclusions of

the Appellate Court that certain such issues were

waived for failure to be raised or preserved below?

Alternatively, if such ordinarily would constitute

waiver, can this doctrine constitutionally be applied

in the face of serious and substantial allegations at-

3

tacking the competency and effectiveness of counsel,

where part of the grounds for attacking counsel’s

competeney rests on his failure to have taken various

appropriate actions at trial, including .he preserva-

tion of such questions for review?

2. Was prejudicial publicity about petitioner Schott’s

arrest during the trial responsible for depriving petition-

ers of a fair trial in derogation of their constitutional

rights? Was the method of jury interrogation adopted by

the trial judge inconsistent with the federally required due

process standards heretofore enunciated by this Court?

3. Were petitioners’ Fourth Amendment rights against

unreasonable search and seizure violated where they were

stopped in a car on the highway solely on the basis of a

police radio message containing a description not suffi-

ciently similar to them and their car to justify a lawful

‘*stop’’ or arrest, and physical evidence seized as a direct

result of that arrest was used at their trial to convict them?

Constitutional Provisions Involved

The Fourth Amendment to the United States Constitu-

tion provides:

‘*The right of the people to be secure in their per-

sons, houses, papers, and effects, against unreasonable

searches and seizures, shall not be violated, and no

Warrants shall issue, but upon probable cause, sup-

ported by Oath or affirmation, and particularly de-

scribing the place to be searched, and the persons or

things to be seized.’’

The Sixth Amendment te the United States Constitution

provides in part:

‘*In all criminal prosecutions, the accused shall en-

joy the right to a... trial, by an impartial jury .. .;

. and to have the Assistance of Counsel for his

defence.’’

+

The Fourteenth Amendment to the United States Consn

tution provides in pertinent part:

“Section 1... |Njor shall any State deprive any

person of ... liberty... without due process of law;

9?

Raising the Federal Questions Below

The Fourth Amendment question conecrning the stop

and search of the car in which petitioners were riding was

raised in the trial court by way of a pre-trial motion to

suppress evidence. (C. 19-20, 22-54) The motion was de

nied. (C, 56A-58)

The due process claim concerning the prejudicial publici-

ty and its effect on the jurors upon petitioner Schott’s

arrest for an unrelated charge during trial was raised

in the trial court. (C. 221)

Both the above issues were vresented to the Appellate

Court and Illinois Supreme Court, which courts rejected

same by affirming and by denying leave to appeal, respee-

tively. (Apps. A & C)

The Sixth Amendment and due process issue regarding

effective assistance of counsel at trial was first presented

to the State courts on appeal to the Appellate Court, when

petitioners were represented for the first time by counsel

other than trial counsel. It also was presented to the

Illinois Supreme Court in the petition for leave to appeal.

STATEMENT OF THE CASE

Petitioners, Andrew P. Schott, Jr., John L. Lee, and

James E. Sutton were each indicted in identical seven-

count indictments (74-1CF-82, -77, and -87, respectively

((’. 7-15) ' charging six counts of armed robbery and one

1“C.” refers to the Common Law Record which includes both the

Transcript of Proceedings at Trial, (C. 120-335), and the Transcript

of Proceedings Upon the Motion to Suppress Evidence.

5

count of aggravated battery. Counts 1 through 6 alleged

that on January 4, 1974, in Lee County, Lllinois, petitioners

committed armed robbery, in that each took property con-

sisting of U.S. Currency (and, additionally, in Count 3

only, guns) from each of six named individuals, respective-

ly,” while armed with a dangerous weapon, in violation

of See. 18-2, Chap. 38, Ill. Rev. Stat. Count 7 alleged that

on the same date, petitioners knowingly, without legal

justification, committed a battery on Randy C. Hacker, by

causing him bodi'y harm, and in committing said battery

used a deadly weapon, to wit, a gun in violation of Sec.

12-4, Chap. 38, Ill. Rev. Stat.*

Petitioners’ pre-trial motion to suppress physical evi-

denee ((C. 19-20) was denied (C. 56A-58) after an eviden-

tiary hearing (C. 22-54).

Following the presentation of evidence to a jury, Count

4 was nolle prossed on motion of the State (C. 270-71).*

The jury found petitioners guilty on the remaining counts

(Counts 1, 2, 3, 5, 6 and 7; C. 97-102), and the court set

aside the convictions for aggravated battery. (Count 7;

C. 357, 364)

Petitioners’ motions for directed verdict at the close

of the State’s case (C. 269-71) and for a new trial (C.~

340-50) were denied.

* Derek ITunter, Daniel I. Quigley, David R. Jacobs, H. Dean

Pratt, Remigio Jiminez, and Tom Petitti, respectively.

% Andrew P. Schott, Jr., John L. Lee and James FE. Sutton were

charged in identical seven-count indictments (Nos. 74 1CF-82,

74 1CKF-77 and 74 1CF87, respectively), and trial thereon was

consolidated. (C. 23)

* The alleged victim of the robbery charged in Count 4, H. Dean

Pratt, did not appear to testify at trial.

6

The court sentenced each petitioner to 6 to 18 years im-

prisonment upon each of Counts 1, 2, 3, 5 and 6, all sen-

tences to run coneurrently. (C. 355; ef. C. 356-57)

STATEMENT OF FACTS

The facts adduced at trial are set forth within the ap-

pellate court’s opinion, App. A, and are not repeated here

to avoid unnecessary duplication.

The facts concerning the motion to suppress are as fol-

lows:

Evidence at Hearing on Motion to Suppress Evidence

(C. 22-54)

Lee County Deputy Sheriff Al Williams testified for the

State that during the morning hours of January 4, 1974, he

went to a farmhouse in Nelson, Ll, pursuant to a radio

dispatch that an armed robbery had occurred there. Deputy

Kkoppein was there. As a result of his investigation, Kop-

pein made a radio dispatch:

¢

‘To get information out that possibly there were

four to five subjects involved and the car was sup-

posediy a yellow Thunderbird with Lowa license plates,

one subject was described as having a blue army jack-

et on and plaid pants.’’ (C, 24)

This dispatch was sent out about 1:45 a.m. (C. 25)

On cross-examination, Williams testified that other than

the deseription of an army type jacket and plaid pants,

he had no description of the four to five subjects at that

time, and that part of the description was that the vehicle

involved bore lowa plates.

State Trooper Marvin KE. Deusterhaus testified that

about 1:50 a.m. on January 4, 1974 (C. 26), he was in

7

Bureau County at the junction of Routes 88 and I-80. At

that time he received a radio dispatch that an armed

robbery had occurred at Nelson, Ill. at 1:35 a.m. The de-

tails he received were as follows:

‘‘it was with reference to the armed robbery, four

to five white male subjects driving a late model Ford

Thunderbird, probably 1975, with lowa plates, pos-

sib-y, one of the subjects was described as wearing a

blue army type jacket with plaid pants.’’ (C. 27)

He saw a yellow Thunderbird on $8 approaching 1-80,

followed it to Buda, IIL, then stopped it. The car he

stopped had a total of 3 occupants, (not four or five), in-

cluding the driver; was white over yellow, not yellow; and

bore Illinois, not Lowa, plates. (C. 27, 36) Petitioner

Schott wore plaid pants, but his light blue navy type shirt

did not resemble an army jacket, and he wore no coat. (C,

39)

The driver, petitioner Schott, came to the police vehicle

at Deusterhaus’ request; was fully cooperative; produced

drivers’ license and vehicle registration; and nothing was

seized from him. (C, 36-37) After other officers arrived

following Deusterhaus’ radio call, nothing (other than a

pocket knife in defendant Sutton’s rear pocket—the carry-

ing which was not any violation of law (C. 38))—of an in-

criminatory nature was discovered, either on the persons

of any of the three or in the body of the vehicle following

a thorough search. (C. 41-42, 46-47, 51)

After locating the key to the trunk of the car after the

car had already been towed and was in police custody at

the Bureau County Jail, (C. 32-33, 43) while petitioners

were in custody and some 2!% hours or more following the

initial ‘‘stop,’’ Deusterhaus and Trooper Hanna searched

the trunk, finding numerous items (all the items enumer-

8

ated on the list comprising State’s Exhibit 4 at the pre

trial hearing, with the exception of three pairs of gloves, a

knife, and three coats—quantities of marijuana and weap-

ons were found in the trunk). (C. 41-42, 46-47) (St. Ex. 4

is contained on an unnumbered page following C. 56 and

a duplicate appears at C. 73-74.)

There was no warrant to search the trunk; no one gave

consent; and none of the individuals did anything unusual

or suspicious prior to Deusterhaus’ placing of petitioners

under arrest. (C. 41-43)

Trooper Ilanna of the Illinois State Police testified

that on January 4, 1974, he received a radio call to assisi

Deusterhaus just before 2 a.m. (C. 44-45) When he met

Deusterhaus at Buda, IIl., he saw that Deusterhaus had

one subject in the police car, and another Bureau County

deputy had two others im another car, which was a white

over yellow late tuedel Thunderbird. A brown leather

jacket in the front seat with $1357 in it, and a pair of

gloves with ‘‘what we thought were blood stains’’ (C. 45)

were seized from the ear. After they arrived at the Bu-

reau County Jail, petitioners were booked, and the vehicle

was searched. (C. 46-47). Hanna did not observe any of

the three men commit any crimes; there was no search

warrant; no formal consent to search was obtained. (C. 47)

The car had Illinois plates. (C. 48) None of the guns re-

covered were on the person of any of the three. (C. 49)

Deputy Schwarting, who was assisting Deusterhaus at

the time and place in question, assisted in the search of

the vehicle in Buda before the car was taken to the jail;

money, a knife, coats and gloves were found in the initial

search. (C. 50) None of the guns or ammunition listed on

State’s Ex. 4 were found inside the car; all were in the

trunk. (C. 51) None of the petitioners was present when

9

the trunk was opened. There were no arrest warrants,

no did the witness see them commit any crimes in his

presence, (C, 52)

Petitioner Schott testified that he was stopped by

Deusterhaus in Buda, that he was arrested for armed

robbery and for no other alleged violations, and that he

never consented to a search of his car. He was present

when the interior of the car was searched in Buda, but not

when the trunk was searched. Petitioner was driving south

on Route 88 near its:intersection with I-80 when the car

was stopped. In answer to Deusterhaus’ questions at the

scene, he said he told him that he was returning to Pekin,

Ill. and that he had been at the Ramada Inn near Rock

Falls or Sterling on Route 88.

The State stipulated that there were no arrest or search

warrants. (C. 54)

The pertinent facts concerning petitioners’ due process-

publicity claim and their contention that they were de-

prived of effective assistance of counsel at trial are set

forth within the respective Points of the Argument which

The jury found petitioners guilty on the remaining counts

follows. (See pp. 18-21 & 12-14, respectively infra.)

10

REASONS FOR GRANTING THE WRIT

Prefalory Statement

In addition to arguing incompetence of trial counsel, pe

titioners presented nine arguments to the Appellate Court

—five of which were deemed waived for purposes of appeal

because not preserved below.

Yet, in discussing and dismissing our contention that

trial counsel failed adequately to represent petitioners,

that Court does not consider the impact of counsel’s

‘‘waivers’’ upon the essential ,uestion whether petitioner:

were afforded effective assistance of counsel, as is their

constitutional right.

In dealing with each of the issues not raised below, the

Appellate Court (though finding waiver) does touch on

the merits; and clearly, these issues are not by any means

‘*frivolous.”’

It seems to us that where more than half the issues pre-

sented for review do not receive consideration on the merits

because of the failings and omissions of counsel below—

and even those questions raised were improperly present-

ed and deemed not preserved—then petitioners have not

received ‘‘reasonably effective assistance of counsel.’’

The Appellate Court here has considered petitioners’

substantial contentions in a vacuum, and has avoided the

essential question whether they were convicted following

a trial which properly may be deemed constitutionally fair.

Violating the precept that appellate judges should not

permit their own view of the evidence as ‘‘overwhelming”’

to prejudice their resolution of the issues, it appears they

have done just that in the case at bar; because in their

11

collective judicial judgment, petitioners are after all,

‘*guilty,’’ none of the rest matters.°

We thought it did matter.

This Court should exercise its power of discretionary

review and grant certiorari to consider the important

questions raised herein. Not the least of these questions

involves the minimum standard of professional compe-

tence expected of trial attorneys.® It is time this Court

took a hard look at what the State reviewing courts have

heen passing as competent representation, in the light of

the standards applicable to other professions.

-

ow *

In view of the Government's insistence that there is abundant

evidence to indicate that... [defendant was guilty], it may not be

amiss to remind that the question is not whether guilt may be spelt

out of a record, but whether guilt has been found by a jury according

to the procedure and standards appropriate for criminal trials. . . .

“.. . All law is technical if viewed solely from concern for pun-

ishing crime without heeding the mode by which it is accomplished.

... From presuming too often all errors to be ‘prejudicial,’ the judi-

cial pendulum need not swing to presuming all errors to be ‘harm-

less’ if only the appellate court is left without doubt that one who

claims its corrective process is, after all, guilty. In view of the

place of importance that trial by jury has in our Bill of Rights it is

not to be supposed that Congress intended to substitute the belief

of appellate judges in the guilt of an accused, however justifiably

engendered by the dead record, for ascertainment of guilt by a jury

under appropriate judicial guidance, however cumbersome that pro-

cess may be.” Mr. Justice Frankfurter, speaking for the Court, in

Bollenbach vy. United States, 326 U.S. 607, 614 (1946).

“See Chief Justice Burger's enlightening article, The Special

Ski's of Advocacy: Are Specialized Training and Certification of

Advocates Essential to Our System of Justice, 42 Forpuam L. Rev.

227 (1973).

1,

Petitioners were deprived of their constitutional right to

effective assistance of counsel.

A. This Court should grant certiorari in order to re-ex-

amine the minimum due process standards applicable

to determining the minimum caliber of professional

legal representation which the Constitution requires

the States to assure defendants in criminal trials.

B. The question whether a federal constitutional right

was waived is itself a federal question, such that this

Court should look beyond the conclusions of the Appc!-

late Court that certain issues were waived for failure

to be raised or preserved below. Alternatively, if such

ordinarily would constitute waiver, this doctrine can-

not constitutionally be applied in the face of scrious

and substantial allegations attacking the competency

and effectiveness of counsel, where part of the grounds

for attacking counsel’s competency rests on his failure

to have taken various appropriate actions at trial, in-

cluding the preservation of such questions for review.

Petitioners’ retained trial counsel’ not only failed to

raise a number of issues raised on appeal, such that the

Appellate Court deemed the issues not properly before it

(7.e., waived); additionally, even as to those issues which

* Clearly, the same constitutional standards must apply in ascer-

taining the effectiveness of both retained and appointed counsel.

Wilson v. Phend, 417 F.2d 1197 (7 Cir. 1969) ; Goodwin v. Cardwell,

432 F.2d 521 (6 Cir. 1970); Lee v. Hopper, 499 F.2d 456 (5 Cir.

1974); Moore v. United States, 432 F.2d 730, 736-37 (3 Cir. 1970) :

Untted States v. Marshall, 488 F.2d 1169, 1192-93 (9 Cir. 1973).

13

trial counsel did call to the trial court’s attention, he did

not properly preserve these for appellate review."

There were nine issues raised in the briefs—other than

the incompetent-counsel issue. Aithough the appellate

court ruled otherwise, its own Opinion demonstrates that

the representation at trial level was of such low caliber as

to amount to little or no representation at all.

For, indeed, the court correctly pointed out that, ‘‘It is

to be noted at the outset that contentions number 5, 6, 7, 8

and 9 were not raised at the trial.’’ (App. A, p. App. 5)

But then, as to those issues raised at trial, the court itself

demonstrated the low caliber of trial representation in

the following particulars:

a. In discussing the claimed limitation of impeach-

mont on the State’s witness Jimenez, the Court

pointed out, ‘*‘However, Lira’s testimony would

still be inadmissible as impeachment because no

proper foundation was laid for such testimony. . .’’

(App. A, p. App. 9) (Emphasis added.)

b. With respect to the argument at the appellate

level that the trial court erred in refusing to al-

low Lira to testify to threats made to him by

—_—_——— - --—-

* The failure properly to preserve those matters which were called

to the trial court's attention cannot be dismissed as merely “tactical

decisions”; for to the extent that the matters were raised and pre-

sented to the trial court, the decision was made to raise the issue.

Thus, failure to preserve same for appellate review must be the re-

-ult of counsel's lack of knowledge of, or lack of attention to, those

legal rules concerning how to preserve matters for appeal. Such lack

of knowledge of the law on the part of counsel amounts to constitu-

tionally ineffective representation. See People y. Ibarra, 60 Cal.2d

400, 34 Cal. Rptr. 863, 386 P.2d 487 (1963). Failure to preserve

issues for review has been recognized as ineffective assistance of

counsel, See Bruce v. United States, 379 F.2d 113, 116-17 (D.C.

Cir. 1967); Scott v. United States, 427 F.2d 609, 610 (D.C. Cir.

1970).

14

Jimenez, the Court stated, ‘‘First, we find that by

failing to make an offer of proof on this alleged

incident, defendants have failed to properly |sic.}

preserve the issue for review.’’ (App. A, p. App.

9) (Kmphasis added.)

c. With respect to the claim that State’s witnesses

violated the trial court’s exclusion order, the court

again found that trial counsel did not preserve

petitioners’ rights. For the opinion pointed out

that merely because witnesses talk to each other,

such does not warrant the claim of a mistrial, be-

cause ‘It is to be noted that defense counsel did

not inquire further than as indicated above as to

what discussion was had by the witness Jacobs

with the prior witnesses.’’ (App. A, p. App. 11)

(Emphasis added.)

d. Regarding the publicity issue, the court stated:

‘*! Nor did trial counsel object to the form of the

inquiry by the court.’’ (App. A, p. App. 13) (Em-

phasis added.)

Have we not now demonstrated that the substance of

effective assistance of counsel was lacking? The Appellate

Court so stated by setting out the specifies of trial counsel’s

gross ineptitude amounting to such low caliber of repre-

sentation as to be no representation at all. Indeed, with

these cumulative examples set out, and with the court’s

recognition of our claim on review that the errors set out

in our original appellate Brief at points 5, 6, 7; 8 and 9

were not raised in the trial below—how much more need

petitioners demonstrate te show conclusively they were

deprived of their right to effective assistance of counsel?

The ‘‘formula’’ language—that is, that counsel is to be

regarded as ‘‘adequate” and ‘‘competent’’ unless the pro-

ceedings were rendered no more than a faree, a sham or a

mockery—is still purportedly adhered to in Ilinois. (App.

A, p. App. 17)

15 —

The test has been expanded by several Cireuits, in cases

finding inadequate assistance of counsel though the pro-

ceedings were not reduced to a farce or sham:

‘*The governing standard is reasonably effective as-

sistance. One method of determining whether counsel

has rendered reasonably effective assistance is to ask

whether the proceedings were a faree or mockery.

The faree-mockery test is but one criterion for deter-

mining if an aecused has received the constitution-

aliv required minimum representation (reasonably ef-

fective assistance). ... [eitation omitted] One may

receive ineffective assistance, of counsel even though

fhe proceedings have not been a farce or mockery.’’

IIerving y. Estelle, 491 F.2d 125, 128, rehearing denied.

493 F.2d 664 (5 Cir. 1974) (reversing district court’s

denial of habeas corpus to State prisoner). (Emphasis

added.)

Otherwise stated, by the Seventh Cireuit: ‘*| T]he Constitu-

tion guarantees a criminal defendant legal assistance which

meets a minimum standard of professional representa-

tion.’’ l’nited States ex rel. Williams v. Twomey, 510 F.2d

634, 641 (7 Cir. 1975).

Also rejecting the ‘‘farce-mockery’’ test as the sole eri-

terion of incompetence is the Sixth Circuit. In Beasley +.

United States, 491 F.2d 687, 692-96 (6 Cir. 1974), the court

specifically rejected this standard, adopting instead a test

of ‘‘rendering reasonably effective assistance.’’ Jd. at

696. Beasley contains a well-reasoned and thorough sur-

vey of the law in this area. The court noted that the Cir-

cuit which originally had formulated the farce-sham test

has itself rejected it. Bruce v. United States, 379 F.

2d 113 (D.C. Cir. 1967), and Scott v. United States, 427

F.2d 609 (D.C. Cir. 1970), overruling Diggs v. Welch, 148

F.2d 667 (D.C. Cir. 1945). See 491 F.2d at 693-94,

16

The Third Cireuit, too, no longer applies the ‘‘farce-

mockery’’ rationale. In Moore v. United States, 432 F.2d

730, 736 (3 Cir. 1970), the court held that as regards both

retained and court-appointed counsel,

‘‘In both cases, therefore, the standard of adequacy

of jegal services as in other professions is the exercise

of the customary skill and knowledge which normally

prevails at the time and place.’”

Accord, West v. Louisiana, 478 F.2d 1026 (5 Cir. 1973).

In the case at bar, petitioners’ counsel’s representation

at trial, considered as a whole,’ was not reasonably effee-

tive assistance of counsel as is constitutionally required.

Considering the Appellate Court’s admissions of counsel’s

failure to have preserved for review matters raised at

trial, as well as counsel’s failure to have raised at all those

matters contained in more than half the points in petition-

ers’ original Brief on appeal, petitioners did not receive

reasonably effective assistance.

Due to the serious problems posed to the administration

of criminal justice by allegations of incompetent counse!,

it is essential that this Court set down some ground rules

for the State and federal courts to follow in dealing with

due process claims both of State and federal prisoners.

Indeed, one Court of Appeals has invited resolution of this

sticky problem by this Court:

*See Chief Justice Burger's article, cited in note 6 supra.

On a claim of ineffective assistance of counsel, the totality of the

alleged omissions and errors of counsel must be considered as a whole.

See United States v. Hammonds, 425 F.2d 597, 604 (D.C. Cir.

1970) ; Wilson v. Phend, supra note 6, at 1199.

17

‘*The Supreme Court, however, has never enunciat-

cd any clear standards for courts to follow in passing

on claims of ineffective assistance of counsel. As a re-

sult, cireuit courts, left without guidance, have groped

for the correct preseription to apply.’’ McQueen v.

Swenson, 498 F.2d 207, 215 (8 Cir. 1974).”

Tu hold, as does the appellate court, that all matters not

raised below and/or not properly preserved are waived on

appeal, despite the serious allegations of ineffective coun-

sel for failure to raise or preserve them, is to condone that

which the cases agree violates whatever standard of effee-

tive assistance of counsel may be applied.”

Due process cannot countenance a finding of waiver in

these circumstances.

The State procedural grounds utilized by the trial and

reviewing courts herein to preclude petitioners from ef-

fective reliance on the issues raised on appeal surely do

not bar this Court from considering the merits of their

substantial contentions.

‘*/ This Court has] consistently held that the question

of when and how defaults in compliance with State

procedural rules can preclude our consideration of a

federal question is itself a federal question.’’ Henry v.

Mississippi, 379 U.S. 4438, 447 (1965).

1 See McQueen v. Swenson, id. at 214-17, collecting recent cases

from various Circuits utilizing more liberal formulations than the

“faree-mockery” test.

12 See Bruce vy. United States; Scott v. United States; and Beasley

v. United States, all cited at p. 15, supra.

Moreover, counsel's defaults in such circumstances cannot amount

to waiver by petitioners. See Fay v. Noia, 372 U.S. 391 (1963) ;

Jackson v. Denno, 378 U.S. 308 (1964); Worley v. Swenson, 386

F.2d 186 (8 Cir. 1967); United States ex rel. McLemore v. Russell,

371 F.2d 554 (3 Cir. 1967); Noble v. Sigler, 351 F.2d 673 (8 Cir.

1965 ).

18

To delineate the minimum standards of professional

competence expected of counsel defending persons accused

of crime, this Court should accept the invitation of the

Eighth Circuit to enunciate appropriate standards. Where

the courts themselves decry the lack of standards, this

Court must not hesitate to act. Certiorari should there-

fore be allowed.

2.

Prejudicial publicity about petitioner Schott’s arrest dur-

ing the trial was responsible for depriving petitioners of

a fair trial in derogation of their constitutional rights. The

method of jury interrogation adopted by the trial judge is

inconsistent with the federally required due process stan-

dards heretofore enunciated by this Court.

During the course of the trial, petitioner Schott was

arrested for an unrelated offense in another county—which

charge was subsequently dropped. (C. 343) A sense of

fairness on the part of the authorities would have indicated

a withholding of such arrest until after the trial. But the

arrest occurred, and was attended with front page news-

paper reportage and extensive radio news coverage in the

area. Defense counsel moved for an inquiry upon the un-

sequestered jury to determine the extent of their contami-

nation. (C. 221) The court’s inquiry was so phrased as

to abdicate its high responsibility to insure petitioners a

fair trial. And the question, being in the conjunctive, was

so improperly phrased as not to comport with the decided

eases on the subject.

The question to the jurors was: ‘‘Have any of you

heard or read anything about this trial or anything about

any of the defendants outside of the proceedings conducted

19

yesterday throughout the trial that caused you to form

an opinion one way or the other?’’ (C. 222; see App. 13)

The court initially should have determined only wheth-

er any juror had read or heard anything outside of court-

room proceedings concerning the case or any of the peti-

tioners; not, as here, whether any juror had read or heard

anything extrajudicial ‘‘that caused you to form an opin-

ion... .’’ The court had a duty to inquire, first, whether

any of the jurors had been exposed to publicity, and sec-

ond, if so, whether they could still be fair and impartial

jurors. Margoles v. United States, 407 F.2d 727, 732-35 (7

Cir. 1969); United States v. Dellinger, 472 F.2d 340, 370-77

(7 Cir. 1972); People v. Cain, 36 U1.2d 589, 224 N.E.2d 786,

790 (1967).

While it is possible that the jurors could have remained

fair and impartial even if they read or heard publicity

concerning petitioner Schott’s arrest for a different charge

while on trial in this cause, see Irvin v. Dowd, 366 U.S.

717, 722-23 (1961); cf. Rideau vy. Louisiana, 373 U.S. 723

(1963), the trial judge’s mode of proceeding here made

it impossible objectively to ascertain the effect, if any,

upon them of exposure to the publicity. By asking them

whether they heard or read anything outside the court

proceedings ‘‘that caused you to form an opinion,’’ the

court delegated to each juror what is (and ean be) legally

only the court’s task: to ascertain each juror’s ability to re-

main constitutionally ‘‘fair’’ despite exposure to publicity.

Due process requires that the trial judge, not the jurors

themselves, must make this determination. That he did not,

and they did, effectively deprived petitioners of that fair

trial to which they are constitutionally entitled. Jrvin v.

Dowd, supra.

20

Where, as here, there is a possibility that jurors may

have been influenced by extrajudicial material, it is im-

proper for a reviewing court to speculate as to prejudicial

effect. ‘‘|CJourts will not speculate as to the amount of

prejudice arising from information secured by a jury out-

side the courtroom.’’ Farese v. United States, 428 F.2d 178,

180 (5 Cir. 1970).

The Appellate Court opined that the issue of improper

procedure and improper question ‘‘was not raised in the

trial court’’; and further, ‘‘. .. nor did trial counsel object

to the form of the inquiry by the court.’’ (App. A, p. App.

13) And accordingly, the Court held that because of trial

counsel’s failure to do what was required to protect the

constitutional rights of petitioners, the issue has been

waived on appeal.’

In light of the argument advanced in Point 1, supra,

asserting ineffective assistance of counsel at trial, the waiv-

er question must not be concluded by the determination of

the State reviewing court. See discussion and cases cited

at p. 17, supra.

To insure that State courts give proper effect to the

constitutional guarantee of an impartial jury, inherent in

due process of law, certiorari should be allowed. This

Court must step in to prevent trial judges from abdicating

their responsibility objectively to determine whether ex-

posure to prejudicial publicity has made it impossible for

a juror to be fair and impartial, despite that juror’s per-

sonal assessment of his own mental state. Certiorari should

be allowed so this Court may remind that this determina-

18 The publicity issue itself, of course, was raised. Hence trial coun-

sel’s failure properly to preserve the issue as raised herein is an indi-

cation of his ineffectiveness, as urged in Point 1, supra.

21

tion is one which the trial judge, not the jurors themselves,

must make in order to satisfy the rigorous constitutional

requirement of trial by jury.

3.

Petitioners’ Fourth Amendment rights against unreason-

able search and seizure were violated where they were

stopped in a car on the highway solely on the basis of a

police radio message containing a description not suffi-

ciently similar to them and their car to justify a lawful

“stop” or arrest, and physical evidence seized as a direct

result of that arrest was used at their trial to convict

them."*

Petitioner Schott was arrested after the car he was

driving was ‘‘pulled over’’ by Officer Deusterhaus.”” At

the time he caused the ear to stop, Deusterhaus had heard

a police radio message that a yellow late model Thunder-

bird bearing lowa license plates might contain 4 to 5 male

individuals wanted in connection with an armed robbery

some distance away about a half hour before. One of these

persons was said to be dressed in plaid pants and a blue

army-type jacket. The ear Schott was driving was a white

over yellow Thunderbird with Illinois, not Iowa, license

plates, and contained a total of three persons, not 4 or 5.

At the time Deusterhaus arrested petitioner Schott, he

had not discovered anything suspicious or incriminating ;

At the outset, it should be noted that recent decisions of

this Court expanding the right of police to search vehicles, in

com'radistinction to other places, have no effect on the argument

raised herein; for our argument attacks the initial probable cause to

stop and arrest petitioners.

' The facts and transcript references supporting the following

account are set forth at pp. 6-9, supra.

22

Schott cooperated; he came to the squad car after

stopping; he produced his driver’s license and vehicle regis-

tration upon request, going from the squad car back to

his own car to fetch it for the officer. After he arrested

petitioner Schott, additional officers arrived, and the two

occupants were also arrested and the car was searched,

excepting the trunk; nothing incriminatory was found.

Clearly, Deusterhaus did not have probable cause to

arrest petitioners. Suspicion he may legitimately have en-

tertained; but this is not probable cause. Hence petition-

ers’ arrest and the admission into evidence of the articles

seized pursuant to the arrest violated their Fourth Amend-

ment rights.

-A warrantless arrest is tested by standards no less

stringent than those applicable to ascertain the validity of

a warrant:

‘*!T jhe standards applicable to the factual basis

supporting the officer’s probable cause assessment at

the time of the challenged arrest and search are at

least as stringent as the standards applied with re-

spect to the magistrate’s assessment [as a prelude to

issuing an arrest or search warrant.]’’ Whiteley v.

Warden, 401 U.S. 560, 566 (1971).

At the time he placed petitioners under arrest, nothing

incriminating had been discovered. And surely, the arrest

cannot be validated ex post facto by what was (allegedly)

subsequently discovered in the car’s trunk, some 2 to 5

hours later, after petitioners were in custody and the

car had been towed to the Bureau County Jail and im-

pounded. Jenry v. United States, 361 U.S. 98, 103-04

(1959), clearly holds that an arrest may not be justified

by what a subsequent search discloses. Accord, Rios v.

United States, 364 U.S. 253 (1950).

23

The officer conceded that he did not observe the vehicle

he caused to pull over violate any traffic laws; the stop

and arrest, and the subsequent search, were predicated

solely upon the radio message containing a description of

the persons wanted in connection with an armed robbery

which supposedly took place some half hour earlier about

40 miles away. The discrepancies between the deseription

given the officer and the actual appearance of petitioner

Schott, of the other two occupants and of the vehicle were

so great that the radio message alone cannot be said to con-

stitute probable cause to arrest petitioners.

Certainly, officers have a right to rely and act upon

official messages they receive by radio. See Whiteley vy.

Warden, supra, at 568. However, where in fact probable

cause is lacking, that an arresting officer may have relied

upon a radio message cannot serve to insulate the other-

wise illegal arrest from constitutional challenge. J/bid.

The officer here was told that a yellow Thunderbird with

Iowa license plates might contain 4 to 5 individuals in-

volved in an armed robbery, one of whom was said to be

wearing plaid pants and an army type jacket. (C. 24, 27)

Petitioner Schott, while wearing plaid pants, was not wear-

ing anything which resembled an army-type jacket. (C. 39)

This radio message did not give the officer probable cause

to arrest the driver and passengers of a car containing a

total of three persons, bearing Illinois plates, the driver

of which happened to be wearing plaid pants.

Here, at the time Deusterhaus arrested petitioner

Schott, the sole and only features of Schott which could

be said to match the radio dispatch were that he was male,

that he was wearing plaid pants, and that he was in a

24

partly yellow Thunderbird. Thus Schott did not suffi

ciently fit the deseription to render the arrest valid."

In short, while the radio message might constitute prob-

able cause for arresting a person matching the message's

deseription of the oceupants and driving in a ear also

matching said description, it did not constitute probab'e

‘ause to arrest petitioners, who did not mateh the descrip

tion, and who were in a car which did not mateh it either.

Without any evidentiary support in the record, the Ap-

pellate Court states that the arresting officer saw ‘tan ob-

viously distinctive type motor vehicle .. .’’, a late model

yellow 1969 Thunderbird with a white top. (App. A, p.

App. 5)" A Thunderbird is a Thunderbird; it is different

from a Buick or a Ford or a Cadillac, but it is not distine-

1 See Mallory v. United States, 354 U.S. 440 (1957), where this

Court in dictum condemned the arrest of three persons for an « f

fense krown to have been committed by only one person, viewi

such arrest as what amounted to a “fishing expedition.” Converse’

here, a stop of a car containing three persons, where the informa

tion conveyed to the officer stated that four or five were involved,

similarly is tainted as being, not only without probable cause, but

also, improperly, for investigation.

The Appellate Court's characterization of the car as “distine-

tive” and “unusual” (App. A, p. App. 5) must be contrasted with

petitioners’ position that it is proper for a court judicially to notice

what is a frequently used mode of dress, which latter argument spe-

cifically has received judicial approval. See People v. Moore, 6 IM.

App.3d_ 932, 287 N.E.2d 130, 134 n.2 (1 Dist. 1972), where. in

evaluating identification evidence, the Appellate Court took judicial

notice of what constitutes a frequently used mode of masculine dress,

further stating that it is common knowledge that a frequently used

mode of dress can be seen on more than one person in the same

general area. The Court's characterization at bar, on the other

hand, finds neither evidentiary nor judicial support.

25

tive from thousands of other Thunderbirds. We are un-

aware of any law permitting the Court to take ‘‘ judicial

notice’’ of what it denominates as ‘‘an obviously distine-

tive type motor vehicle.’’ Some testimony should have

been produced supportive of this judicial fact-finding

made de hors the record.

Also, the Court seems to justify the search by what was

found later, in impermissible hoot-strap logic. Thus, we

find the Court noting that the petitioners testified they

were at the Dawson farm on the night and at the time in

question. (App. A, p. App. 8) This cannot serve retroac-

tively to justify the illegal stop in the first place. And clear-

ly, the ‘‘stop’’ constituted an arrest. Henry v. United

States, 361 U.S. 98, 103 (1958).

With respect to the claimed police statements that pe-

titioners said they were in the ‘‘vicinity’’ of the Rock

Falls-Sterling area at the time they were stopped, the

Appellate Court has ignored entirely the map of the area.

(App. D)."* It shows the Rock Falls-Sterling area a long

distance from the farm.

18 App. D hereto, the map, was submitted as an Appendix, both

to petitioners’ Reply Brief in the Appellate Court, and to their Pe-

tition for Leave to Appeal in the Ilinois Supreme Court. It is ob-

vious therefrom that the Sterling-Rock Falls area is a large area,

which surely cannot be said to be “in the area,” App. 5, of Nelson.

Indeed, Nelson is not even in the same county as the Sterling-Rock

Falls area. Considering the expanse of the Sterling-Rock Falls area,

it is not reasonable to assume that someone who says he has come

from an unarticulated portion of that area had in fact “been in the

area of the robbery at the time in question.” (App. A, p. App. 5)

Deusterhaus “determined,” (App. A, p. App. 5), no such thing; he

merely suspected it. Attention is further drawn to the local rural

roads involved; one cannot go directly from Nelson to Buda (the

area where defendants were apprehended) via any main thorough-

fare.

26 27

To uphold the arrest and ensuing search herein amoun.s

to judicial justification of unconstitutional conduct on CONCLUSION

the basis of the fruits of the search; it amounts to granting

ex post facto authorization for improper police conduct

because the ollicer’s hunch materialized. The mandate of

the Fourth Amendment cannot thus be thwarted and i

nored; only by suppression of evidence so obtained ea:

official compliance be fostered. Mapp v. Ohio, 367 U.S. 64°, Respectfully submitted,

651-52, 657-60 (1961). The purpose of the exclusionary

rule ‘tis to deter—to compel respect for the constitutional Juuius Luctus EcHe.es

guaranty in the only effective available way—by removing CaRroLyn JAFFE

the incentive to disregard it.’’ Elkins v. United States, 364

U.S. 206, 217 (1960).

Certiorari should therefore be allowed.

For the foregoing reasons, Certiorari should be allowed,

and petitioners’ convictions should be reversed, or re-

versed and remanded.

Attorneys for Petitioners

The trial court’s refusal to suppress the evidence seized

as a result of petitioners’ unlawful arrest permitted un-

constitutionally obtained evidence to be used against them.

Petitioners’ convictions should be reversed.”

Here, included in the evidence seized as a result of petitioners’

arrest were the guns allegedly used during the robbery, as well as

guns allegedly taken in the course thereof. See p. 8, supra. Thus

the constitutional error cannot be deemed “harmless,”’ regardiess of

this Court's assessment of the sufficiency of the other evidence to

support conviction. See Wrightson v. United States, 222 F.2d 556,

561-62 (D.C. Cir. 1955). It is impossible for this Court to conclude

beyond a reasonable doubt that the constitutional error herein was

harmless, per Chapman v. California, 386 U.S. 18, 24 (1967).

APPENDIX

a.

APPENDIX A

IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT

FIRST DIVISION

PEOPLE OF THE STATE OF ILLINOIS,

Plaintiff-Appellee,

v.

ANDREW P. SCHOTT, JR., JOHN L. LEE

and JAMES E. SUTTON,

Defendants-A ppellants.

Appeal from the 15th Judicial Circuit,

Lee County, Illinois.

OPINION OF THE APPELLATE COURT

(Filed June 7, 1976.)

Mr. Presivinc Justice Guiry delivered the opinion of the

court:

The three defendents herein were each indicted for six

counts of armed robbery against six different parties and

a seventh count of aggravated battery committed on one

Randy ©. Hacker. Count IV of the indictments charging

armed robbery of one H. D. Pratt was nolle prossed by the

State as it appears in the record that Pratt had entered

the armed services. The defendants were tried by a jury

and found guilty of the five counts of armed robbery and

the one count of aggravated battery. The trial court held

that the aggravated battery was a ‘“‘lesser offense’’ and

set the conviction aside as to that offense. The court

thereupon sentenced each of the three defendants to 6-18

years in the State Penitentiary as to each count of armed

robbery with the sentences to run concurrently.

App. 2

The evidence for the State was that on the night o1

January 3, 1974 Lana Beane and Randy ©. Hacker wei

at the residence of one Doug Dawson on a farm in Neison,

Lee County, Illinois. About 9:30 in the evening a man came

to the door, subsequently identified as the defendant John

L. Lee, and stated that his car was in a ditch and asked

to use the telephone. He was allowed to use the telephone

and he then reentered the room where he produced a gun

and told Randy ©. Hacker and Lana Beane to lie down

on the floor. Lee then opened the door and the two other

defendants, subsequently identified as Andrew P. Schott,

Jr. and James E. Sutton, entered the residence. They were

disguised with nylon stockings placed over their heads.

It further appears that Lee then placed a stocking over

his head as well. All three men were armed. About 10:00

p-m. Derek Hunter and his wife Phyllis knocked at the

door of the farmhouse and they were admitted. The three

masked men then tied up and blindfolded Hunter with

masking tape. Mrs. Hunter and Lana Beane were subse-

quently tied up and blindfolded. $220 was taken from

Hunter. About 10:30 in the evening Tom Petitti, Dan

Quigley, H. D. Pratt and Remigio ‘‘Ray’’ Jimenez arrived

at the Dawson farmhouse in Quigley’s car. Petitti went

to the door and the other three remained in the car. A man

with a nylon stocking over his head and with a gun in his

hand took Petitti into the room where the other victims

were sitting with their eyes taped and their hands tied.

Money was taken from Petitti. Shortly thereafter Quigley,

Pratt and Jimenez were ordered out of the ear at gunpoint

by a man with a mask and taken into the farmhouse. $22

was teken from Quigley and $160 was taken from Jimenez.

All four were tied up and blindfolded with masking tape.

About 11:30 in the evening Dave Jacobs, who resided at the

Doug Dawson farm, arrived home. He was met at the door

by Lee, taken into the room with the other victims, tied

App. 3

up and blindfolded. About $1000 was taken from the per-

son of Dave Jacobs. At the trial Remigio Jimenez identi-

fied the defendant Lee; Tom Petitti identified the defen-

dant Schott; Lana Beane identified both defendant Sutton

and defendant Lee; and Mrs. Hunter identified all three

defendants.

About 1:30 in the morning of January 4, 1974 the three

defendants left the farmhouse, leaving the above enumerat-

ed people tied and/or blindfolded in the farmhouse. The

victims were able to free themselves from their bonds and

called the police shortly after 1:30 a.m. An alert was sent

out over the police radio describing the vehicle of the de-

fendants as being a yellow 1969 Thunderbird and one of

the oecupants being described as wearing plaid pants and

an Army-type jacket. The car also was described as having

Iowa license plates. About 45 minutes later defendants

were arrested by a State Trooper in Bureau County after

having reccived the ISPRA message in reference to the

armed robbery which occurred in Nelson, Illinois. The

State Trooper stopped the vehicle of the three defendants,

which was a yellow, 1969 Thunderbird with a white top.

The defendants were handcuffed and taken to the Bureau

County jail. The vehicle was removed to the police station

and searched. In the trunk of the defendants’ car the po-

lice officers found three handguns, four shotguns, a .22

caliber rifle in a ease, and David Jacobs’ Firearms Identi-

fication card. Marijuana was also found in the trunk of

the car. The shotguns and rifle were subsequently identi-

fied by David Jacobs as being his property which was

taken from the Dawson farmhouse during the robbery.

Prior te the trial the defendants filed a motion to sup-

press the evidence seized, including all the physical evi-

dence found in the trunk of the defendants’ car. The mo-

tion to suppress was denied,

App. 4

At the trial the three defendants testified that defendant

Schott didn’t know how the guns could have gotten into

his trunk and the other two defendants, likewise, dis-

claimed any knowledge of the firearms being in the trunk

of the vehicle. The three defendants, in substance, testi-

fied that they knew Doug Dawson, the owner of the farm-

house where the robberies occurred; that they had gone

there to see him and that they sat around and talked to all

of the people above enumerated; and that they drank beer

and smoked marijuana with the parties there. They al!

further testified that, inasmuch as Dawson did not return,

they left at approximately 1:00 a.m., at the request of Dave

Jacobs who stated to them that one of the parties thougl!

one of them was a narcotic agent. At the time of the re-

port of the robberies the victims stated that approximate

ly $1503 had been taken from Petitti, Hunter, Quigley,

Jimenez and Jacobs. $1384 was found in defendan!

Schott’s coat. Schott testified that he had about $1250 in

his coat and that he was going to use it to purchase drugs

from Doug Dawson as soon as he returned from Chicago.

However, at the time of his arrest Schott advised the State

Trooper that the large sum was his and that he was in the

real estate and construction business and, therefore, carried

large sums of money.

The arresting officers testified that they had received

the ISPRA message that the robbery had occurred, that

the robbers had left in a late model yellow Thunderbird

with Iowa license plates. The officer making the initial

arrest testified that he observed the defendants’ vehicle at

2:17 a.m. near Buda, Illinois; that it was a late model

1969 Thunderbird, yellow with a white top; and further

testified that the information in the ISPRA message was

that one of the robbers was wearing plaid pants and » blue

Army-type jacket. When the oflicer stopped defendants’

App. 5

vehicle the defendant Schott came back to the officer’s car

and the officer observed that he was wearing plaid pants

with a blue Navy-type jacket. The three men were arrested

and the Thunderbird was towed to the heated Bureau

County Jail garage, it being—10°F’. There a key was found

between the hood and the fender of defendants’ ear which

opened its trunk and the guns enumerated above, ammuni-

tion, firearms identification card and marijuana were found

in the trunk. The three handguns were loaded and ap-

parently the shotguns and rifle were not.

Defendants have raised ten issues in this appeal and we

shall consider them in numerical order. It is to be noted

at the outset that contentions number 5, 6, 7, 8 and 9 were

not raised at the trial.

The first contention of the defendants is that the arrest-

ing officer did not have probable cause to arrest the defen-

dants and that the admission into evidence of the articles

seized from the trunk violated their constitutional rights.

We do not agree. It is undisputed that a robbery had oe-

curred and the message had gone out via ISPRA that three

or more men had left the scene in a late model yellow

Thunderbird shortly after 1:30 a.m. The arresting officer

observed, at 2:17 a.m., a late model yellow 1969 Thunder-

bird with a white top going down the highway about 35

miles from the farmhouse. This is an obviously distinctive

type motor vehicle and when defendant Schott exited the

vehicle at the request of the arresting officer he was ob-

served to be wearing the type of clothing which one of

the robbers had worn at the time of the robbery, to-wit:

plaid pants and a blue Navy-type jacket. The alleged

diserepaney in the deseription, to-wit: that it was an

‘‘Army-type jacket’? and that the car did not have Iowa

plates but did have a white top, does not alter the fact

that this unusual type vehicle was observed and the driver

App. 6

thereof was wearing clothing which substantially fit the

description given out over the police radio. Furthermore,

the arresting officer determined that the motor vehicle and

the occupants had been in the area of the robbery at the

time in question. We, therefore, find that the arresting

officer had probable cause to arrest the driver of the

vehicle and the occupants thereof. Having probable cause

to arrest the same, the removal of the motor vehicle to the

heated Bureau County Jail garage and the subsequent

search thereof was proper. In People v. Hanna (1969), 42

Ill.2d 323, 247 N.E.2d 610, we find a similar case to the

one before us. Counsel for the defendant in that case, who

is the same counsel who is involved in the case before us,

raised this same issue, contending that probable cause did

not exist for the warrantless arrest of the defendant there-

in and the ensuing search of the trunk of the car in the

police station. The court in Hanna stated:

‘The rules that a warrantless arrest may be made on

the basis of probable cause and that a warrantless

search may be made incidental to a valid arrest have

heen too often stated by us to require extended reitera-

tion here. [Citations.] Whether probable cause exist-

ed must be governed by the totality of the facts and

the circumstances in each case.’’? 42 Tll.2d at 328, 247

N.E.2d at 613.

In Hanna the defendants were arrested as a result of a

radio message, the license plates did not match and the

court held that there was ample justification for the officer

stopping the car and questioning its occupants. The court

went on to hold that the search of the motor vehicle at

the police station likewise was proper. In People v. Cana-

day (1971), 49 Ill.2d 416, 275 N.E.2d 356, we again find a

case where the defendant was arrested in an automobile

which matched the description of the car used in a burglary

App. 7

after the policeman received a radio report of the burglary.

While it is true certain television sets were observed in the

back seat of that automobile, the motor vehicle was taken

to the Morgan County Sheriff’s office and the trunk of

the car was searched and stolen items found therein. A

motion to suppress this evidence was made and denied and

the Supreme Court of Illinois, in citing Chambers v. Ma-

roney (1970), 399 U.S. 42, 26 L.Ed.2d 419, 90 S.Ct. 1975,

stated:

‘The Supreme Court rejected the contention that

search without a warrant at the police station was im-

proper. It was observed that the auto which could

have been properly searched on the highway could as

well be searched without a warrant at the police sta-

tion, because the probable cause to search it continued.

The movement of the vehicle to the station did not

create any duty to secure a search warrant.’’ People

v. Canaday (1971), 49 IlL.2d at 421, 275 N.E.2d at 359.

In Chambers there was a police radio message that there

had been a robbery by two men, one of them wearing a

green sweater and the other a trench coat and driving a

station wagon. When the station wagon was stopped in

response to the police radio message, one of the men was

wearing a green sweater and there was a trench coat in the

ear. Strikingly similar to Chambers, one of the robbers

subsequently identified as the defendant Schott, was de-

scribed in the police message as wearing plaid pants, indi.

cated above, and the ‘‘Army” or Navy-type blue jacket.

We therefore find that the possible discrepancies in the

description of the motor vehicle and the license plates are

insignificant in consideration of the other facts relating to

the description of the vehicle and the occupants as indicat-

ed above.

A pp. s

When the defendant Schott was stopped by the po icc

officer on the highway, the officer asked him where he had

been and he replied that he had been in the Rock Falls-

Sterling area. The second question of the officer dealt with

the $1300 found in Schott’s coat in the ear. Defendants’

second contention is that these statements were improperly

admitted against the defendants as Schott had not vet been

given his Miranda warnings. Examination of the record

indicates that, in faet, Schott had been given his Miranda

warnings prior to the question as to where the money in

his coat came from. The first statement as to where he

had been was a routine question and this issue has been

decided by the Supreme Court as follows:

‘Thus, statements made in response to routine in-

Vestigatory questions, asked during a brief initia!

period of non-coerecive detention and designed to clari-

fy a suspicious circumstance, have often been held

aduussible under Miranda, |Citations.]’’ People v.

Thompson (1971), 48 UL2d 41, 44, 268 N.E.2d 369, 371.

See also, People v. Caldwell (1978), 55 IL2d 142, 152, 202

N.E.2d 69, 614. We find no error in this regard.

It is also to be noted that all three defendants took the

stand and each not only testified they were in the Rock

Falls-Sterling area but admitted that they were in the

Dawson farm where the robbery took place on the night

and time in question.

Defendants’ [sic.| next object to the trial court’s grant-

ing of the State’s motion im limine made prior to the open-

ing of the defendants’ case to prevent the defendants from

calling one Mr. Lira as a witness. Ray Jimenez, a State’s

witness, had earlier testified that he went to the Dawson

farm to purchase a gun from Jacobs. The defendants made

an offer of proof that Lira would testify that Jimenez had

LLL

App. 9

told Lira that he was going to the Dawson farm to pur-

chase LSD. Defendants contend that, in granting the mo-

tion in limine, the trial court thereby denied defendants an

opportunity te impeach a State’s witness; prevented the

defendants from substantiating their theory that they had

gone to the farm to purchase marijuana by using Lira’s

testimony to show that drugs were available at the farm;

and finally, prevented defendants from showing that

Jimenez threatened Lira when he saw him in the court

building, as alleged by defense counsel.

Regarding the impeachment of Jimenez, we first note,

contrary to the position of the State, that the proffered

testimony of Lira, if used to impeach Jimenez by prior

inconsistent statement, would not be hearsay since it would

not be offered for the truth of the facts contained therein

(See, People v. Morgan (1968), 28 IlL.2d 55, 190 N.K.2d

755.) Ilowever, Lira’s testimony would still be inadmis

sible as impeachment because no proper foundation was

laid for such testimony (See, People v. Sanders (1974), 56

[2d 241, 306 N.E.2d 865), and additionally, it would be

irrelevant and collateral to the issues of the case (See,

People vy. Cappalla (1926), 324 Ill. 11, 154 N.B. 451). Fur-

thermore, defendants cannot complain that the exclusion

of Lira’s testimony denied them an opportunity to pre-

sent testimony that drugs were available on the farm. If

Lira’s testimony were to be used for such a purpose, it

would constitute inadmissible hearsay. While evidence of

prior inconsistent statements of a witness is admissible

to affect his credibility, such evidence does not afford sub-

stantive proof of the facts stated therein. (See, People v.

Morgan, supra.) Thus, even if Lira’s testimony were ad-

mitted, the trial court would have had a duty to instruct

the jury as to the limited purpose for which such evidence

was offered.

App. 10

Defendants also argue that the trial court erred in re-

fusing to allow Lira to testify to alleged threats made to

him by Jimenez or to conduct a voir dire examination into

this matter. First, we find that by failing to make an offer

of proof on this alleged incident defendants have faile |

to properly preserve the issue for review. Notwithstanding

this waiver, we find that testimony concerning the allege:

hostility of Jimenez to Lira would be irrelevant to the

issues of the case and, if used for purposes of impeaching

Jimenez, collateral. In this regard, the statement of the

court in People v. Whitehead (1966), 68 Til.App.2d 488,

495, 216 N.K.2d 237, rev'd. on other grounds, 35 Til.2e

501, 221 N.K.2d 256, in [sic.] instructive:

‘*We have been shown no cases where the dislike of

Witnesses for one another was considered proper for

exploration during a trial. We think that the feelings

of Mrs. Whitfield [a State’s witness] toward Mr.

Washington {a defense witness] are too tangential to

be admissible as evidence at this trial.’’ ,

We, therefore, find no error in the trial court’s granting

of the motion iz limine with regard to thé testimony of the ©

proffered witness, Lira.

The fourth contention of the defendants is that a wit-

ness violated the court’s order excluding witnesses. In the

cross examination of Dave Jacobs he said that he talked to

some of the witnesses as they were sitting in the office wait-

ing to be called to testify. Apparently all of the witnesses

were in one room. In response to an inquiry by defense

counsel as to whether he had talked to Lana Beane and

Randy Hacker, who had previously testified, Jacobs stated

that they told him what they had said in court. In response

to the inquiry as to what they told him, he replied, ‘‘They

told what happened ... said it wasn’t as difficult as they

thought it would be.’’ Defense counsel then asked, “Did

App. 11

they tell you specifically what questions were asked?’’ and

Jacobs replied, ‘‘Not that I remember. 1 don’t believe they

did.’’ Defense counsel contends this is in violation of the

order entered by the trial court at the commencement of

the trial, which simply reads, ‘‘ All witnesses must remain

outside the courtroom until called to testify.’? At best this

might possibly be considered an indirect violation of an

order excluding witnesses. In People v. Decker (1974), 19

IlL.App.3d 86 at 93, 311 N.E.2d 228 at 234, a witness, who

was not present at the time of the exclusion order, was ad-

vised by the State’s Attorney as to the substance of a

previous witness’ testimony. That witness then took the

stand and testified. As pointed out in Decker, the most the

defendant had done was to assert an indirect violation of

the exclusion order and had failed to show how the trial

court had abused its discretion in permitting the testimony

to stand. In the case before us, the court merely excluded

the witness from the courtroom. It has been repeatedly

held that even where the witness is in the courtroom in

violation of the court’s order, it is within the discretion of

the trial court as to whether that witness may be permitted

to testify. For a discussion of violations of an exclusion

order where a witness remains in the courtroom attention

is directed to 14 ALR3d 16, ‘‘ Effect of Witness Vioiation

of Order of Exclusion’’. The great weight of authority ap-

pears to be that it is within the discretion of the trial court

to admit the testimony of a witness who remains in the

courtroom in violation of the court’s exclusion order. How-

ever, in the case before us that is not the factual situation.

The mere fact that the witness did state that he had talked

to witnesses who had previously testified does not, in itself,

in view of the nature of the limited exclusion order herein

referred to, warrant the finding that the court abused its

diseretion in not granting a mistrial as requested by the de-

App. 12

fense counsel. It is to be noted that defense counsel! did not

inquire further than as indicated above as to what di--

cussion was had by the witness Jacobs with the prior wit-

nesses. We find no error in the court’s denial of the mo-

tion for a mistrial on the basis of the above. People vy.

Decker (1974), 19 UL App.3d 86, 98, 311 N.B.2d 228, 234.

The fifth contention of the defendant [sic.| is that some,

if not all, of the prosecution witnesses engaged in the use of

controlled substances during the time of the alleged rob-

bery. Examination of the record does not disclose this to be

true. In the first place, it is to be noted that the only two

witnesses who could have used marijuana were Randy

Hacker and Lana Beane, th other witnesses were tied up

and blindfolded upon entering the house. The testimony of

Randy Hacker was that there was marijuana in a drawer

in the premises. He denied that he had been smoking it

prior to the entry of the three defendants in the premises

Lana Beane testified that during the entire evening she

smoked cigarettes. It is true, as defendants point out, that

Hacker said he did smeil cannabis burning and in answer to

the inquiry on this point stated, ‘‘during the period the

three subjects were there, yes.’’ He was then asked if he

smoked any and he replied, ‘‘No.’’? Defendants contend

that this evidence tended to demonstrate that the prose-

cution witnesses engaged in the use ef canrabis on the

night in question and that the court should have held a

hearing to determine the effect, if any, of such use. The

only two witnesses, as pointed out above, that could have

possibly have [sic.] used marijuana denied the same and

the other six witnesses obviously did not have the oppor-

tunity to use marijuana had they so desired. We find this

contention without merit and note that the same was not

raised during the trial.

App. 13

The sixth contention of the defendants is that the trial

court improperly inquired of the jurors whether any of

them had read newspaper articles or heard a radio broad-

cast relating to one of the defendants. During the trial

the defendant Schott was arrested for an unrelated of-

fense. In response to the defendants’ request the court

interrogated the jurors as to whether or not any of them

had read or heard of this arrest in the following manner:

‘*Ladies and gentlemen of the jury, we are sorry for

this delay, but it is something that can’t be helped. I

am going to make an inquiry of you, if your answer

is in the affirmative, raise your hand, if not, don’t do

anything. My question is: Have any of you heard or

read anything about this trial or anything about any

of the defendants outside of the proceedings conduct-

ed yesterday throughout the trial that caused you to

form an opinion one way or the other?

None of you.

Proceed with the trial.’’

Defendants contend that the proper procedure weuld have

heen for the court to inquire whether the jurors had been

exposed to the publicity and, if so, could they still be fair

and impartial jurors. We find that the interrogation of

the jurors as to whether they had read or been prejudiced

by any radio or newspaper publicity was sufficient. We

further note that this issue was not raised in the trial

court nor did trial counsel object to the form of the in-

quiry by the court. As pointed out in People v. Curry

(1975), 56 Ill. 2d 162, 170, 306 N.l.2d 292, 296:

‘Tt is settled that specific objections to the admission

of evidence waive all grounds not specified (People v.

Canaday, 49 UL2d 416, 423-24) and that one may not

raise on appeal a question which was not properly

presented to the trial court. (People v. Amerman, 50

Ill.2d 196; People v. O'Malley, 404 Ill. 165.)

App. 14

As in Curry, it is also to be noted that this issue was not

raised in the post trial motion and the court in Curry held

that ‘‘Under these circumstances we conclude the defen-

dant has waived consideration of this issue on appeal.’’

96 Tll.2d at 170, 306 N.E.2d at 296.

Defendants’ seventh contention is that physical evi-

dence and testimony relative thereto was improperly ad-

mitted against them. The first contention in this regard

is that the chain of custody of such evidence was not suf-

ficiently established. This issue was not raised in the trial

court and the Supreme Court has squarely passed upon

this in People v. Polk (1960), 19 I1].2d 310, 167 N.E.2d 185.

As stated in People vy. Pruitt (1974), 16 IL App.3d 930, 941,

307 N.E.2d 142, 152, in citing People v. Polk:

**An objection to the failure to establish the chain of

possession must be made at trial or it is waived on

appeal.’’

We therefore find that this issue was waived. The second

part of this contention deals with the admission of certain

evidence which was not connected to the defendants. Nu-

merous items were taken during the course of this armed

robbery and were introduced as State’s Exhibits 1 and 3

through 35. Many of the items consisted of the contents of

three billfolds. One of the billfolds was found by a Mrs.

Collins several weeks after the robbery. On February 21,

1974 a deputy sheriff went to the scene where the first

billfold was found and recovered two more billfolds and

many items which apparently had been in the billfolds,

such as ‘Jentifcation cards, social security ecards, credit

eards and the ‘ke. He also found a roll of masking tape.

These items were found by the deputy alongside the road

leading from the farmhouse or in a field nearby. Many of

the items were identified by the victims as having been

taken from them at the time of the robbery. It may be

App. 15

true that the ownership of one or more of the items intro-

duced was not shown. This was the basis of the defense

counsel’s objection to the admission of the items at the

trial. As indicated above, several of the victims testified

as to the taking of money from their persons by the de-

fendants, totalling over $1300. This sum, $1384, was found

in the coat of the defendant Schott. We find, in light of all

of the evidence and the testimony at trial, that if the own-

ership of any of the miscellaneous contents of the billfolds

found strewn upon the field or the three billfolds them-

selves were not sufficiently identified, that the admission

of the same into evidence is harmless error.

The eighth contention of the defendants is that no scien-

tific evidence was adduced that the masking tape found on

defendant Lee’s shoes or found by the roadway matched

the tape used to blindfold the persons in the farmhouse.

Likewise, defendants contend that the facet that Deputy

Koppein testified, without objection, that there was blood

on a pair of gloves identified as one of the defendants’ re-

quired scientific proof that it was human blood and that

it matched the blood of one of the victims. It is true that

no scientifie testimony was adduced as to either the tape

or the blood, however, the fact remains that there was

masking tape used to blindfold the victims and that mask-

ing tape was found on the shoe of defendant Lee when ar-

rested. The fact also remains that the police officer stated

that there was blood on one of the pair of gloves. The

State concedes that the State’s Attorney may have indi-

eated in his closing arguments that the stains on the gloves

were blood and that the evidence did not definitely support

such a conclusion. On the other hand, we find that defense

counsel in closing argument commented rather exhaustive-

ly on the blood on the gloves question, to-wit:

App. 16

‘*Based on the sole testimony of Mr. Hacker, no one

else testified seeing any blood, save the blood on the

gloves... . What about the blood on the gloves? We

know they were sent to the crime lab, don’t we, be-

cause that is where they came back from for blood

analysis, weren't they? Did we hear anything about

blood types, comparisons and identical blood found

on those gloves as compared with the blood of Randy

Hacker? Not one word.’’ | Emphasis added. |

It is obvious that defense counsel conceded that the stains

were, in fact, bloodstains, and chided the State for failure

to connect up the blood type with that of the victim. We

find, as the State points out, that Deputy Koppein’s testi-

mony as to his observation that the stains on the gloves

were blood and the odd coincidence of finding masking

tape on the shoe of defendant Lee, when masking tape was

used to blindfold the victims, goes to the weight of the evi-

dence rather than to its admissibility. Lastly, we express-

ly point out that this eighth contention was not raised in a

post trial motion.

The ninth contention of the defendants deals with the

statements of the State’s Attorney in closing argument

relative to the blood on defendant Sutton’s gloves and

the masking tape on defendant Lee’s right shoe. The

State’s Attorney argues that this evidence was not neces-

sary as they had nine people who were hostages, seven of

whom testified. He further commented that the defendant

could have subpoenaed the other two witnesses, to-wit: the

victim Pratt and the owner of the farmhouse, Doug Daw-

son. Considering the case as a whole, we do not feel that

the State’s Attorney’s comment was improper. The fact

remains that seven witnesses did, in fact, testify substan-

tially to the effect that they were robbed at gunpoint, blind-

folded and tied up by the three defendants who were posi-

tively identified. Under these circumstances we feel that

App. 17

the record as a whole is overwhelming as to the guilt of the

defendants and that any error resulting from the State’s

Attorney’s comments is harmless.

The last argument of the defendants is that trial coun-

sel was incompetent in failing to raise the issues set forth

above as defendants’ contentions 5, 7, 8 and 9. While de-

fendants were represented by privately retained counsel,

defense counsel has pointed out that in People v. Long

(1973), 12 Ill.App.3d 974, 979, 298 N.E.2d 784, 787, the

appellate court there stated: ‘‘...a fair trial is not diluted

by the fact that he chose his own trial counsel as distin-

guished from having been the recipient of court appointed

counsel.’’? Defense counsel fails to point out that in People

v. Long the appellate court further held, ‘‘ Incompetence of

trial counsel warranting reversal must be of such charac-

ter as to make the trial a farce.’’ Furthermore, in the re-

cent case of People v. Torres (1973), 54 Ill.2d 384, 391, 297

N.E.2d 142, 146, the Supreme Court of Illinois again stated

that in the case of privately retained counsel that, ‘*In such

a case the court will not reverse a conviction because of

the incompetency of counsel unless the representation is

of such low ealiber as to amount to no representation at

all or reduces the court proceedings to a farce or a sham.”’

Defense counsel has pointed out te us that several Fed-

eral Cireuit Courts of Appeal have rejected the ‘‘farce-

mockery”? test as the criterion of incompetence of trial

counsel and have adopted the test as being that of ‘‘ren-

dering reasonably effective assistance.’’ Defendants admit

that in the case at bar the trial was not a farce, a sham or

a mockery of justice but that trial counsel’s representation

did not reasonably render effective assistance as required

by the more enlightened case law. We do not adopt the

Federal rule but do find that trial counsel did, in fact.

render reasonably effective assistance. Defense counsel

App. 18

vigorously represented his clients, moved to suppress the

evidence, moved for discovery and, after a vigorous de-

fense at the trial, moved for a new trial. Whether trial

counsel agrees with appellate counsel as to the issues to be

raised on appeal is a matter of legal discretion on the part

of counsel. As the trial court pointed out, the evidence

against the defendants herein was overwhelming. Under

those circumstances we believe the defense counsel pre-

sented the best possible defense. We therefore affirm.

AFFIRM.

SemwenreLtp & Hatwett, J.J. concur.

App. 19

APPENDIX B

STATE OF ILLINOIS

APPELLATE COURT SECOND DISTRICT

Elgin, Ilinois 60120

July 16, 1976

The Court has this day entered the following Order in the

case of:

Gen. No. 75-8

People of the State of Illinois, appellee, v. Andrew J.

Schott, John L. Lee and James K, Sutton, appellants

Petition for rehearing denied.

LOREN J. STROTZ

Clerk

Julius Lucius Echeles

Patrick E. Ward

Edward N. Morris

Phyllis J. Perko

App. 20

APPENDIX C

48775

(Seal of the Supreme Court of Illinois)

State oF ILurNots

OFFICE OF

CLERK OF THE SUPREME COURT

Springfield

62706

Telephone

Clell L. Woods Area Code 217

Clerk 782-2035

September 29, 1976

Mr. Julius Lucius Echeles

Attorney at Law

35 East Wacker Drive

Chicago, Ill. 60601

No. 48775—People State of Illinois, respondent, vs. An-

drew P. Schott, Jr., et al., petitioners. Leave

to appeal, Appellate Court, Second District.

You are hereby notified that the Supreme Court today

denied the petition for leave to appeal in the above entitled

cause.

Very truly yours,

/s/ Clell L. Woods

Clerk of the Supreme Court ©

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