Petition — Hanrahan v. Illinois

78-1628 | FILED \

No. 1

|

MICHAm pR JDAK, JR, CLERK-}

Iu the

Supreme Court of the United States

Ocroser Term, 1978

HOMER HANRAHAN AND MICHAEL HANRAHAN,

Petitioners,

vs.

PEOPLE OF THE STATE OF ILLINOIS,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

APPELLATE COURT OF ILLINOIS,

FIRST JUDICIAL DISTRICT

CARL P. CLAVELLI

221 North LaSalle Street

Suite 1938

Chicago, Illinois 60601

Attorney for Petitioners

LAWRENCE J. SUFFREDIN, JR.

on the brief

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

PAGE

EES AER TER Se ELC R Se TOL Te 1

I oe eg hs cdainmnionbes 2

a calbibanssitiinckcsatenen 2

Constitutional provisions involved oo... cecececeeeeeeeeee es 2

Statutory provision involved 2.2.2.2... ce ceeeeeee ee 3

RN cinco achick Sem icebtats dar aissie nbastieeicaitlices annie siciles 3

Reasons for Granting thé Writ ~......2....00...............--- 15

|. ‘The court erred in failing to grant Homer Han-

rahan’s and Michael Hanrahan’s Motions to

Quash Arrest and Suppress Statements taken

in violation of their constitutional rights under

See ar cc cee 15

Il. Homer Hanrahan’s Motion for Severance should

have been granted based upon the fact that the

statement of Michael Hanrahan was introduced

into evidence by the People 0.0.0.0... eee 19

III. It was error for the court to deny Homer and

Michael Hanrahan’s motion to prevent George

Pappas from serving as the prosecutor where

Mr. Pappas was able to testify in opening and

closing statements, thus denying the defen-

dants their right to confront their accuser ... 21

ns scale vubipemsluabddeaiotcaas 23

ROE Le EMI ESSE tere ae aed a ON RED App. 1

A—Opinion of the Illinois Appellate Court for

the First Judicial District, September 11,

Sy SAREE RS Re eee Lc iapasseamiiiecae App. 1

il

AUTHORITIES CITED

Cases

PAGE

Brown v. Illinois, 422 U.S. 590 (1975) uu... 2,16, 17,18

Bruton v. United States, 391 U.S. 123 (1968) ............ 20, 22

Dutton v. Evans, 400 U.S. 74 (1970) ooo. 22

Miranda v. Arizona, 384 U.S. 436 (1966) —.......... 16, 17,18

Oregon v. Mathiason, 429 U.S. 492 (1977) oe... 15

Parker v. Gladden, 385 U.S. 363 (1966) —.....0200000000... 23

People v. Clark, 50 Ill. 2d 292, 278 NE 2d 782 (1972) .. 19

Stone v. Powell, 428 U.S. 465 (1976) ow. 23

Wong Sun v. United States, 371 U.S. 471 (1974) ...... 17,18

Other Authorities

Fourth Amendment, United States Constitution 2, 15, 16, 18

Sixth Amendment, United States Constitution ...... 2, 21, 22

Illinois Revised Statutes, 1975 Chapter 38, $114-8 _....... 3, 20

In the

Supreme Court of the United States

Ocroser ‘l'eRM, 1978

HOMER HANRAHAN AND MICHAEL HANRAHAN,

Petitioners,

VS.

PEOPLE OF THE STATE OF ILLINOIS,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

APPELLATE COURT OF ILLINOIS,

FIRST JUDICIAL DISTRICT

Petitioners Homer Hanrahan and Michael Hanrahan,

pray that a Writ of Certiorari be issued to review the

judgment of the Illinois Appellate Court for the First

Judicial District entered in this cause on September 11,

1978.

OPINIONS BELOW

The opinion of the Illinois Appellate Court for the First

Judicial District is reprinted as Appendix A, mfra. The

Supreme Court of Illinois issued no opinion.

2

JURISDICTION

The opinion of the Illinois Appellate Court was entered

on September 11, 1978. A timely Petition for Leave to

Appeal to the Supreme Court of Illinois was filed by the

Petitioner, but such Petition was denied on January 25,

1979. The jurisdiction of this Court is invoked under Title

28 U.S.C. Section 1257 (3); 62 Stat. 929.

QUESTIONS PRESENTED

1. May the State inform a defendant that he is being

questioned as part of an investigation of a battery

without telling him he is being placed under arrest

or is being charged with a crime and use statements

elicited under these pretenses at his trial for murder

and kidnapping?

2. May the court deny a Motion for Severance when the

statement of one co-defendant is used against the other

co-defendant?

3. Did the court err when it allowed the prosecutor who

was a witness to the defendants’ statements and who

testified at the Motion to Suppress to act as the prose-

cutor at trial, thereby foreclosing his availability as a

witness to the defense?

CONSTITUTIONAL PROVISIONS INVOLVED

Amendment IV, United States Constitution

The right of the people to be secure in their persons,

houses, papers, and effects, against unreasonable searches

and seizures, shall not be violated, and no Warrants shall

issue, but upon probable cause, supported by Oath or af-

firmation, and particularly describing the place to be

searched, and the persons or things to be seized.

Amendment VI, United States Constitution

In all criminal prosecutions, the accused shall enjoy

the right to a speedy and public trial, by an impartial jury

3

of the State and district wherein the crime shall have been

committed, which district shall have been previously as-

certained by law, and to be informed of the nature and

cause of the accusation; to be confronted with the witnesses

against him; to have compulsory process for cbtaining

witnesses in his favor; and to have the Assistance of Coun-

sel for his defense. |

STATUTORY PROVISION INVOLVED

Illinois Revised Statutes, 1975, Chapter 38, $114-8

If it appears that a defendant or the State is prejudiced

by a joinder of related prosecutions or defendants in a

single charge or by joinder of separate charges or defen-

dants for trial the court may order separate trials, grant

a severance of defendanis, or provide any other relief as

justice may require.

STATEMENT

At the hearing on preliminary motions, the following

facts were presented. At approximately midnight on No-

vember 22, 1974, Mary Ellen Hanrahan, age 16, went to

the Niles, Illinois Police Department to report her worry

about her mother, Marian Hanrahan. (T. 7) She told Police

Officer Thomas EK. Ferraro that late on November 20, 1974

she heard her mother, father and older brother in ‘‘a ter-

rible fight, argument.’’ (T. 241) At one point she saw blood

on her brother’s arm, at another point she heard her mother

moaning and crying out that something was hurting her.

She later fell asleep and she did not see her mother the

next day, November 21, 1974. (T. 242)

Mary Ellen Hanrahan then had a conversation with Cap-

tain Ed Dennis, Detective Sergeant Giovannelli, Officers

Tom Ferraro, Vito Lo Verde and Gerald Sheehan. (T. 8)

4

She related to them that on November 20, 1974, she heard,

through a heating vent, her mother moan, She then went

downstairs and was met by her father Homer who did not

live with the family. Homer told her everything was okay

and that she should go upstairs. (T. 9) She then said that

her Uncle Gerry Wallenberg and her brother Steve came

to the house and that she had a conversation with them

and her older brother Michael, age 19. (T. 10) Michael told

her later that their mother had gone crazy and had come

at Michael with a knife. He said he had hit her in the face.

Michael told Mary Ellen that she could not see her mother

because her parents were talking things over in the base-

ment. (T. 10) She then said that the following morning,

November 21st, her father told her that her mother was

asleep and that she was fine. Mary Ellen did not see her

mother that morning. (T. 11)

That afternoon when she returned from school at about

2:15 P.M., she found a note on the kitchen table in her

father’s handwriting. It stated that her mother and father

had taken a short trip and would be back Friday. She then

went to her part-time job. (T. 11-12)

Later on November 21, 1974 Steven received a phone call

from his father Homer saying everything was okay. Steven

asked to talk to his mother, but Homer told him she was

taking a bath. (T. 12)

After Mary Ellen discussed the above facts with her

Uncle Gerry Wallenberg she went to the police. (T. 12)

Following the conversation with Mary Ellen, police officers

went to the family home at 8633 Normal Avenue, Niles,

Illinois, where they noticed a smear of blood on a post and

its base in the basement. They noticed also blood droplets

on the stairs. (T. 14) The officers conducted no scientific

test to determine if in fact the substance they noticed was

5

blood. (T. 166) In the upstairs bedroom of Homer and

Marian Hanrahan the police noted that the bed had only

pillows and a stained inattress cover. A search of the

house did not produce any bed linen. (T. 15) While the

police were at the house, Steven informed them that his

mother never left without saying goodbye to him. (T. 16)

Through an earlier phone call to Steven from Homer

the police were able to determine that Homer had been at

the Clayton House in Love Park, Illinois. (T. 16) At ap-

proximately 3:00 A.M. on November 22, 1974, the Love

Park Police discovered that Homer had been registered

at the Clayton House, but had left before they arrived

there. (T. 17)

Captain Dennis testified that he had instrueted the offi-

cers to arrest Michael for the investigation of the missing

person (Marian) as well as for the assault. (T. 253-254)

At approximately 6:00 A.M. on November 22, 1974, Niles

Police Officers Giovannelli, Lo Verde and Sheehan went to

the Sigma Phi Fraternity House at the Chicago Technical

College at 5907 Midway, Chicago, Hlinois and took Michael

Hanrahan into custody. (T. 19) The three officers testified

that they arrested Michael for battery. (T. 19, 115, 147)

In relating the events of November 22nd, Michael Han-

rahan testified that he was living in a fraternity house

and that at 6:00 A.M., a fraternity brother, Bill Sisk, woke

him to say that there were three police officers to see him.

(T. 410-412) Michael stated that the officers told him they

were taking him to the police station for an investigation.

(T. 412) Bill Sisk also testified that the officers told him they

were taking Michael to the police station for questioning

only. (T. 312)

Michael testified that he was handeuffed and taken to

the Niles Police Station. (T. 413) At approximately

6

7:00 A.M., Officers Giovannelli, Lo Verde and Ferraro

started questioning him about where his mother was.

Ferraro whispered that Michael better cooperate with the

police if he knew what was good for him. (T. 413) This

questioning lasted forty-five minutes. Michael signed a

waiver of rights form, though he testified he did not under-

stand Number 5: ‘‘If you answer questions or make any

statements without consulting a lawyer, or without having

a lawyer present during the questioning you will still have

an absolute right to stop answering questions or making

any st»tements until you consult a lawyer, or have a lawyer

present during the questioning.’’ (T. 416) At the end of

this questioning Michael Hanrahan indicated he wished

to remain silent. (T. 418)

Michael further testified that Officer Lo Verde then

asked him what he had to hide if he remained silent. The

officer also told him that Mr. Giovannelli was an ex-golden

gloves boxer and told him that if he did not start cooperat-

ing with the police he would be ‘‘worked over’’. (T. 419)

At approximately 8:30 A.M., Officer Giovannelli informed

Michael of his rights again and then questioned him for

about an hour. (T. 118) At approximately 10:00 A.M., As-

sistant State’s Attorney Paul Lazarus advised Michael of

his rights and questioned him for approximately half an

hour. (T. 421, 318) At approximately 11:00 A.M., Mr. Laza-

rus informed Michael again of his rights and took a state-

ment from him lasting half an hour. (T. 320) At approxi-

mately noon, Assistant State’s Attorney Carl Piazza talked

with Michael. (T. 386)

Around noon Homer phoned Michael at the station, but

he did not know he was calling a police station. (T. 423)

Michael testified that Officer Giovannelli said ‘‘kid, you

have no choice’’ but to talk to your father and help the

7

police. (T. 428) Shortly after this incident Michael was

placed in a car driven by a police officer and taken to meet

his father. (T. 118-119) Michael testified that he had been

threatened by the police officers at this point. (T. 423-424)

However, the officers denied that any threats were made.

(T. 121)

Homer did not meet Michael as planned. (T. 425) Michael

was returned to the station. Thereafter, about 3:00 P.M.

Mr. Piazza, Mr. Lazarus and Officer Sheehan took a state-

ment from Michael with a court reporter present. (T. 321)

Michael testified that from the time of his arrest until

7:00 P.M. he had had no food or rest. (T. 427) Mr. Piazza

remembered Michael having a hamburger at about 6:00

P.M. (T. 398)

Mr. George Pappas, the courtroom prosecutor in this

case, testified that he arrived at the Niles Police Station

between 7:00 and 7:30 P.M. (T. 268) At about 9:00 P.M.

Mr. Pappas and Mr. Lazarus talked to Michael. (T. 272)

Mr. Pappas informed Michael of his rights and then ques-

tioned Michael. Mr. Lazarus did not stay in the room for

the questioning. (T. 273-274)

Michael testified that Mr. Pappas identified himself as

a defense attorney there to assist Michael. (T. 428) He

further stated that Mr. Pappas did not give him his rights.

(T. 428) Mr. Pappas denied this. (T. 272-273)

Michael further stated that, at about 12:30 A.M. on No-

vember 23, 1974, Mr. Pappas introduced him to a Mr. Gino

Di Vito, and told him he was the lawyer who would repre-

sent Homer. (T. 429-430) In fact, Mr. Di Vito was also an

Assistant State’s Attorney. Mr. Di Vito then took a state-

ment from Michael.

8

Based upon the questioning of Michael, at approximately

7:00 P.M. Homer was arrested at 1468 Rosita Drive. (T.

478-482) He was brought to the Niles Police Station.

Mr. Di Vito testified that at 2:00 A.M. on November 23,

1974, he had a conversation with Homer Hanrahan with

Mr. Pappas present at which time Homer was advised of

his rights. (T. 357) Homer testified that Mr. Di Vito had

told him he was a defense attorney and that he talked to

him only because of that representation. (T. 497-501) Mr.

Di Vito advised him to sign consent to search forms. (T.

497) Mr. Di Vito denied these facts. (T. 357)

Prior to trial motions were filed to quash the arrest of

both Michael and Homer, to suppress all statements of

Michael and Homer, and to sever the cases for trial. (T.

d1, 52, 59, 61, 65) The Court denied the Motion to Quash

the Arrest of both and denied the Motion to Suppress all

statements. (T. 628-632) The Court then denied the Motion -

for Severance after the Assistant State’s Attorney Pappas

indicated that Michael’s statements would be excised. (T.

637-648)

The Court further denied a Motion for Mr. Pappas to

be removed as courtroom prosecutor although the defen-

dant argued that he would be denied his right to confront

a witness. (T. 671)

At trial the state presented Mary Ellen Hanrahan, Steve

Hanrahan and Gerry Wallenberg to testify about their

observations recorded above.

In addition, Officer Giovannelli testified that Michael

told him at 7:00 A.M. on November 22, 1974 that he had

seen his mother and father leave the Niles home at noon

on November 21, 1974. (T. 220) However, Mr. Di Vito tes-

tified that Michael told him at 12:30 A.M. on November

9

23, 1974 his previous statements were not true. (T. 754)

Michael told Mr. Di Vito that he and Homer met in Jake’s

Restaurant in Niles, Illinois. The meeting was scheduled

for seven-thirty on November 20, 1974. Homer arrived at

seven-forty-five. There, he and his father discussed what

they were going to do with his mother later that day.

Specifically, they discussed keeping his mother a prisoner

until such time as she consented to sign over to himself,

his sister and brother by way of some sort of trust deed,

her home in Niles. Michael said that the home had a mort-

gage of approximately three thousand dollars and a market

value of seventy or eighty thousand. There was also some

undeveloped property in Lake Summerset.

Michael further stated to Mr. Di Vito that he and his

father left Jake’s at approximately eight-fifteen. In the

parking lot, his father gave him an unloaded, automatic

handgun. They drove, in their own cars, to a Foremost

Liquor Store, where his father went in to purchase a six

pack of beer.

As his father went into the liquor store, Michael left

and drove home. He arrived at the same time his mother

pull. i. into the driveway, approximately eight-thirty. He

and his mother entered the house together. After a short

period of time, his father arrived. He let his father into

the house. No-one else was home at this time. (‘T. 755)

Mr. Di Vito further testified that Michael stated that

he, Marian and Homer went into the basement. Michael

said he pulled the unloaded automatic weapon, pointed it

at his mother and made the demand he and his father had

talked about previously. At this time, to Mr. Di Vito’s

recollection, Michael stated that his father endeavored to

bind his mother. She struggled, and to use Michael’s exact

words, ‘‘kicked him in the nuts’’.

10

His mother fell to the ground, unconscious. According

to Michael there was severe bleeding. He and his father

used bath towels to wipe up the blood which was on the

basement floor as well as on his mother.

From time to time when she would regain consciousness,

he said his father administered to her chloroform, which

was dipped in rags. He said a slit was cut in the rear of

her slacks so as to cause a panel opening. Through this

slit, drugs, which he could not identify, were injected into

her buttock. (T. 756) His father bound his mother’s hands

and feet with rope which his father had brought with him.

Michael said that during the time he, his mother and

his father were in the basement, his sister returned home.

She was sent to bed by his father. Shortly thereafter his

twelve year old brother returned home. He was also sent

to bed by his father.

Michael said that during the period of time they were

in the basement both he and his father had blood on their

clothing. All of their clothing except undershorts was re-

moved and washed by the father in the washing machine.

After the clothing was dried they put it back on. (T. 757)

At some time later in the early morning his mother was

carried upstairs to her bedroom. Michael said that he

carried her feet while his father carried the upper part

of her body. She was laid in her bed at that time. Michael

said he slept on a couch in the living room that evening.

The next time he saw his mother was at six-thirty, the

morning of the 21st of November. He went up to his moth-

er’s room. His mother had an ace bandage on her head. His

father assured him that his mother was okay, that he

would take care of everything.

11

Michael said that before leaving for senool, at his

father’s request, he removed his Vega from the driveway

and pulled his father’s Nova into the attached garage. He

then drove his own ear to school. He worked in the canteen

at school from eight to approximately ten o’clock A.M.

Sometime between ten-thirty and eleven, he returned to

his mother’s home. (T. 758)

When he returned home, his father and he earried his

mother from the bedroom. At that time, his mother was

wrapped in sheets and blankets from the bed. His mother

was placed in the trunk of his father’s Nova which was in

the attached garage.

Michael said that as they entered the garage, he heard

what he thought was a groan from his mother, He said he

also noted that his mother was totally naked at that time

but her hands were tied behind her back and her feet were

tied. He said that he surmised that his father had untied

his mother, disrobed her and retied her. (T. 759)

Some towels used in the cleaning process were placed

in the trunk. Michael said that his father also took a spade

from the garage and placed it in the car. He also stated

that his father said something about burying his mother

in the ‘‘boonies’’ or out in the country somewhere near

the Lake Summerset property. The unloaded automatic

handgun which Michael had used the night before was

placed in the automobile. Another gun, which he had seen

in a holster sitting on a bar in the basement, was placed

in the glove compartment of his father’s car. Some empty

beer cans from the night before and the blankets and sheets °

in which the mother was wrapped were also placed in the

ear. The hypodermic needles and drugs were also placed

in the ear. (T. 760)

12

Michael then said that he left the home in his own ear

for a job interview at the Veteran’s Administration Hos-

pital. After the interview was over, upon his return to

his car, he discovered that it was stolen.

Michael said that sometime after the interview he was

contacted by the police regarding his mother’s whereabouts

and at that time he gave them the false story which he had

referred to earlier. Michael also said that before leaving

the house, his father had left a note for his brother and his

sister explaining the whereabouts of his mother.

Michael further told Mr. Di Vito that after being con-

tacted by the police, he telephoned his father and explained

to him that his car had been stolen. His father suggested

that he meet his girlfriend, Roberta Stiles, at a designated

location. Michael went to that location in a taxicab driven

by a Niles police officer posing as a cab driver. He said

that Roberta did not meet him at the designated place and

he returned to the Niles Police Department. (T. 764)

Mr. Di Vito then testified that at 2:00 A.M. on November

23, 1974, Homer told him and Mr. Pappas that the two guns

were in a dresser drawer at his friend, Roberta Stile’s

home. He said that the towels and blankets which had been

bloodstained were in a cardboard box in the basement of

his girlfriend’s house. He had laundered them at her house

without her knowledge. (T. 768)

Homer said that he had placed the ace bandage in a

garbage can in his girlfriend’s garage. He said that his

wife’s clothing, including her slacks with the panel cut,

her bra, sweater, blouse and underpants were all placed

in a garbage can outside his Mount Prospect apartment.

(T. 768)

13

Homer said all the drugs which were used were placed in

the same garbage can. He identified the drug that was

injected into his wife as sparine. He described it as a heavy

sedative type drug. He identified chloroform as another

substance used. He further told Mr. Di Vito that he was

familiar with drugs as a result of his former employment

with a drug company. (T. 769)

Homer Hanrahan also told Mr. Di Vito that his son had

struck his wife on the head with a:gun. This occurred

shortly after she displayed or wielded a serated knife. The

only additional thing which he said, after saying something

about wanting to talk to an attorney, was that his wife had

struck Steven on the head with a plastic dish and had

caused such injury to his head that it required stitches.

(T. 771) At this point, Mr. Di Vito concluded taking the

statement.

Dr. Choi testified that the cause of death of Marian

Hanrahan was morphine intoxication, associated with the

use of chloroform, phenothlazine and multiple bruises. (T.

545)

Dr. Christopoulos testified that People’s Exhibit 30(b),

phenegan with codeine, a cough remedy would break down

to morphine after ingestion. (T. 687) But he could not say

if the 412 milligrams of morphine in the bile came from

People’s Exhibit 30(b). (T. 699) He further stated that it

would take five bottles of the cough remedy to reach the

morphine level found. (T. 688)

Homer Hanrahan testified in his defense and denied giv-

ing morphine in any form to his wife. (T. 1067) He also

admitted giving his wife sparine in an attempt to quiet

her down. (T. 1037)

14

The jury found Homer guilty of murder, aggravated

kidnapping, conspiracy and aggravated battery. The jury

found Michael not guilty of murder, but guilty of aggra-

vated kidnapping, conspiracy and aggravated battery. (T.

1741)

Motions for new trials for both Homer and Michael were

denied. (T. 1756, 1791)

Homer was sentenced to 50-100 years for murder, 3-10

years for aggravated battery and 20-40 years for aggra-

vated kidnapping. Michael was sentenced to 10-25 years

for aggravated kidnapping and 3-10 years for aggravated

battery. (T. 1862-1863)

15

REASONS FOR GRANTING THE WRIT

I.

THE COURT ERRED IN FAILING TO GRANT HOMER

HANRAHAN AND MICHAEL HANRAHAN’S MOTIONS

TO QUASH ARREST AND SUPPRESS STATEMENTS

TAKEN IN VIOLATION OF THEIR CONSTITUTION-

AL RIGHTS UNDER THE FOURTH AMENDMENT.

The facts of this case indicate that defendant, Michael

Hanrahan, was awakened at six o’elock in the morning by

members of the Niles Police Department who informed

him they were conducting an investigation of a battery.

Instead of seeking his cooperation, however, the petitioner,

an 18 year old youth, was placed under arrest without bene-

fit of a warrant issued by a judge, handcuffed, and whisked

from his home to the police station under the guise that

his cooperation was needed for a police investigation of a

battery incident. (T. 312, 412)

The above facts amply indicate that the defendant did

not consent to the initial police actions. Rather, he was

deceived into believing that the police were merely investi-

gating a possible crime and therefore wanted to question

him. In fact, the police took the steps to arrest him with-

out probable cause. As such, no consent to the arrest can

be imputed to the defendant. It is also doubtful whether a

citizen could effectively consent to waive his privilege

against self-incrimination when the intent of the police

was not explained to him.’ This is not unlike the situa-

1 See e.g. Oregon v. Mathiason, 429 U.S. 492 (1977) (defendant

consented to the investigation by voluntarily visiting the police

station ).

16

tion in Brown vy. Ilimois, 422 U.S. 590 (1975) in whieh

the police officers ‘acknowledged in their testimony that

the purpose of their action was. ‘for investigation’ or ‘for

questioning’ "". Jd. at GOD,

At seven o'clock in the morning, the interrogation began.

The police advised the defendant of his rights under

Miranda and he signed a waiver of rights. At that point

he gave a statement, After one and one half hours of inter

rogation, the defendant gave a second statement. (TS 118)

A third statement was taken one and one half hours later,

(T. 421) A fifth was taken an hour after the fourth. (7.

$86) A sixth statement was taken three hours later. CT. 821)

ive hours later, the defendant gave his seventh statement

(T. 278-274) and three and one half hours later, an eighth

was taken. (TL 429-430) In seventeen and one half hours,

eight statements were taken, an average of one statement

every two hours. Twenty-two hours after the police first

called upon the defendant at his fraternity house, he was

brought before a magistrate.

The seenario, mn its totality, is simliar to that in Brown,

Murthermore, in the instant ease the defendant was not

told that he was under arrest nor that he was being charged

with any erime. He was interrogated for a more extended

period of time than the defendant in Brown, Accordingly,

the policies and practices as enunciated ino Brown clearly

indicate that the defendant Hanrahan’s statements, taken

in violation of the Fourth Amendment, must be exeluded.

In both Brown and the present ease, the ‘tarrest’’ was

not an arrest, but an investigation. In neither situation

was there probable cause. Henee, both the Brown and Han

rahan ‘‘arrests’’ were illegal. More so, the Hanrahan

‘arrest’? was performed in a deceitful manner and was

intended to lull the defendant into believing that a mere

17

investigation was taking place; thus the poliee hoped to

cireumvent the constitutional underpinnings of a warrant

less arrest while treating the defendant as i he were ar

rested. As so aptly noted in Brown,

Arrests made — for questioning or ‘investigation ’’

would be eneouraged by the knowledge that the evi

denee derived therefrom eould well be made admissi

ble by the simple expedient of giving Miranda warn

ines,

422 US. at GOL. This is certainty what the ofieers lad in

mind when they told the defendant an investigation was

being pursued, read him the Wiranda warnings and iter

rogated him for seventeen and one hall hours they hoped

fo negate any taint resulting from the primary illegality

and deeeption by repeatedly giving the Meranda warnings,

The above facts demonstrate that the cornerstone upon

which Brown was premised is present. Additionally, the

mandate of Wong Suny. Cited States, 871 US. ATE C1963)

and Brown bespenaks of the necessity to overturn the trial

court, As stated in Brown,

Wong Sun requires not merely that the statement

meet the fifth Amendment standard of voluntariness

but that it be ‘sufficiently ancact of Free will to purge

the proumary tame’.

2 ULS. G02, erting Wong Sun, 371 US. at 486. Further

more,

the Miranda warnings, alone and per se, cannot al

ways make the act sufficiently a product of free wall

to break, for Fourth Amendment purposes, the causal

connection between the illegality and the confession.

422 U.S. at 603.

Although the Brown court recognized the significance of

the Miranda warnings, /d., it also noted several other fae

tors bearing on the determination of whether or not the

18

confession was product of free will. It suggested consider-

ing the temporal proximity between the primary illegality

and the confession. /d. As mentioned previously, one state-

ment was taken immediately, one approximately an hour

later, then six more over the next fifteen hours.

The Court also noted the relevance of the presence of

intervening circumstances. 7d. In the present case, the only

intervening circumstances were the incessant interroga-

tions of a young man by police and prosecutors. There

clearly was no ‘‘intervening act of free will’’. See, Wong

Sun, 371 U.S. at 486. Rather, the intervening acts only

exacerbated the import of the primary illegality.

Lastly, the Brown court suggested that the purpose and

flagrancy of the official misconduct would be relevant. 422

U.S. 604. The purpose of the official conduct in the instant

case was ‘‘to investigate’’. However, the legal conduct

became illegal once the officers stated and reported in writ-

ing they were investigating, but nevertheless acted in such

a manner to effectuate an arrest. The flagrancy of the

misconduct arises from the deceitful manner in which the

officers approached the defendant. Moreover, they admit-

tedly were on an ‘‘expedition for evidence in the hope that

something might turn up’’. /d. at 605.

There is no question that the officers in this case violated

defendant Michael Hanrahan’s Fourth Amendment rights.

This ‘‘violation’’ is not rectified by the repeated issuance

of Miranda warnings which, under the circumstances, could

not be said to have been knowingly waived by the arrestee.

As Brown so clearly held, this surreptitious modus oper-

andi will fail. Notwithstanding the flagrant misconduct

of the officers, the Illinois court disregarded the teachings

of the Constitution, of Wong Sun and of Brown by failing

to suppress the arrests and confessions of both Michael

19

and Homer Hanrahan. Consequently, it refused to accord

them a trial meeting the mandates of the Constitution.

Accordingly, we ask that the decision of the Illinois Appel-

late Court be reversed.

II.

HOMER HANRAHAN’S MOTION FOR SEVERANCE

SHOULD HAVE BEEN GRANTED BASED UPON THE

FACT THAT THE STATEMENT OF MICHAEL HAN-

RAHAN WAS INTRODUCED INTO EVIDENCE BY

THE PEOPLE.

At the time the severance issue was presented to the

Court Assistant State’s Attorney, George Pappas stated:

To obviate the possible Bruton dilemma, your

Honor, we are in a position to present, or argue to

the Court that when the alleged confessions of each

defendant will be presented to the jury that the ap-

propriate references to any co-defendant will be elimi-

nated. I think it can be done quite easily, especially

when we are dealing with individuals, your Honor,

that are lawyers, and can be cautioned certainly well

in advance, and are aware of the Bruton dilemma,

and certainly when they testify before the jury any

reference that they will make to any co-defendant will

be deleted.

So | think we can obviate the Bruton versus United

States dilemma that we are possibly confronted with

by excising the reference of a co-defendant. That

certainly satisfies Bruton. (T. 639)

The State also cited People v. Clark, 50 Ill. 2d 292, 278

NE 2d (1972) to support their position. Based on this

the Court denied the severance. (T. 648)

At trial Homer’s attorney attempted to have the agreed

references eliminated. (T. 737) Michael’s counsel ob-

20

jected to the excisions in that such deletions changed the

knowledge and the intent of Michael’s statement. (T. 738)

The Court then allowed Michael’s entire statement to go

to the jury. (T. 738)

Prior to trial the State admitted that:

We may have a situation in this particular case,

however, your Honor, where one defendant’s state-

ment, that being Michael’s is somewhat more detailed

than Homer’s statement. So I don’t know whether

based on the statements that we have before the Court

whether we can satisfy the recent line of cases in-

dicating substantial similarity may permit introduc-

tion of the confession. (T. 637)

Because the excisions agreed to were barred by the ob-

jection of the co-defendant and the fact that the co-defen-

dant’s statement did deprive Homer of his right to con-

front witnesses the severance should have been granted.

Bruton v. United States, 391 U.S. 123 (1968). This is es-

pecially true here where the co-defendant Michael did not

testify.

Section 114-8, Chapter 38, Illinois Revised Statutes 1975,

requires a severance where one defendant would be prej-

udiced by trial with another. Here this prejudice was

agreed to by the People and the defendant Homer Hanra-

han and appropriate action was to be taken. However,

though there was no disagreement that one defendant’s

statements prejudiced the co-defendant, requiring that all

references to Homer be excised, this excision was stopped

by the action of the co-defendant Michael, (T. 738) There-

fore, a severance should have been granted.

21

ITT.

THE COURT ERRED WHEN IT ALLOWED THE

PROSECUTOR, WHO WAS A WITNESS TO THE DE.-

FENDANTS’ STATEMENTS AND WHO TESTIFIED AT

THE MOTION TO SUPPRESS, TO ACT AS THE PROSE-

CUTOR AT TRIAL AND THEREBY EFFECTIVELY

FORECLOSE HIS AVAILABILITY AS A WITNESS TO

THEIR DEFENSE.

Prior to opening statements defense counsels objected

to Assistant State’s Attorney George Pappas acting as

counsel for the State in this case. The defendant requested

that in the event Mr. Pappas did not voluntarily withdraw,

that the Court order him to withdraw. (T. 663)

Pappas’ participation in the investigation of this case

was extensive. Ile was one of the assistant state’s at-

torneys who gave instructions to the police officers. (T. 198)

He was the only other person present during the oral

statements Assistant State’s Attorney Gino DiVito took

from Michael (T’. 751) and Homer Hanrahan. (T. 767)

Pappas even testified in the defendants’ motion to sup-

press. (T. 268-306) When the defendants’ original mo-

tion to preclude Assistant State’s Attorney Pappas from

trying the case was made, the State’s Attorneys Office

assured the defendants that Mr. Pappas would not testify

in their case in chief. (T. 38)

In raising this motion, the defendants’ stated concern

was that the State would be given the opportunity to but-

tress their case by Assistant State’s Attorney Pappas’

participation in both the investigation and trial of this

case, and that, as a result, the defendants would be denied

their Sixth Amendment right of confrontation by their

accusers.

22

It is well established that the Sixth Amendment right of

an accused to confront the witnesses against him is a

fundamental right and is made obligatory on the States

by the Fourteenth Amendment of the United States con-

stitution, Dutton v. Evans, 400 U.S. 74 (1970); Bruton v.

United States, 390 U.S. 123 (1968).

During opening statements Assistant State’s Attorney

Pappas put his participation in the investigation before

the jury. (T. 34-37) On these statements alone, defense

counsel made a motion for a mistrial which was denied.

(T. 42) Although the Court admonished Assistant State’s

Attorney Pappas ‘‘to keep yourself out of this case’”’ (T.

40), Mr. Pappas’ participation in the investigatory stages

was repeatedly put before the jury.

For example, Gino DiVito testified that when he arrived

at the Niles Police Station on the evening of the 22nd

of November, 1974, he encountered George Pappas and had

a conversation with him. (T. 749) Earlier that day,

DiVito had instructed Pappas to go to the Niles Police

Station. (T. 801)

DiVito further testified that prior to speaking with

Michael Hanrahan, he had received information from As-

sistant State’s Attorney Pappas (T. 812) and that Pappas

was present during the statements he took from Michael

and Homer Hanrahan. (T. 751, 767) Mr. DiVito did not

request the presence of a court reporter and he took no

notes during these statements. (T. 814-815) Moreover,

Dr. Eupil Choi testified that prior to performing an

autopsy, he received a history of the case from Assistant

State’s Attorney Pappas. (T. 553)

The effect of these constant references.to Pappas’ role

in the investigation was that Pappas became an unsworn

or silent witness against the defendants, and thus not sub-

23

ject to cross-examination. Significantly, under an accused’s

constitutional right to a trial by an impartial jury and right

to be confronted with the witnesses against him, the evi-

dence developed against a defendant shall come from the

witness stand in a public courtroom where there is full

judicial protection of the defendant’s right of confronta-

tion, of cross-examination, and of counsel. Parker v.

Gladden, 385 U.S. 363 (1966). In this ease the evidence

received an implied corroboration by the fact that the

prosecutor, present in the courtroom before the jury, was

also present during many of the activities about which the

jury heard. His presence in the courtroom was used further

to buttress the truth of other witnesses through his ‘‘testi-

mony’’ in opening and closing statements to the jury. The

defense’s inability to cross-examine Pappas denied the de-

fendants a fair and impartial trial.

CONCLUSION

Both facets of the Appellate Court’s decision in this

case represent substantial and dangerous departures from

guidelines that have been carefully drawn to protect vital

constitutional rights by this Court. Left unreviewed, the

decision of the Illinois Court undercuts these guidelines

to the extent that they may well be considered meaningless

in Illinois. See, Stone v. Powell, 428 U.S. 465 (1976).

For these reasons we respectfully urge that this Court

issue its Writ of Certiorari to the Appellate Court of Tli-

nois for the First Judicial District.

Respectfully submitted,

Cart P. CLAVELLI

Attorney for Petitioners

LAWRENCE J. SUFFREDIN, JR.

on the brief

APPENDIX

APPENDIX A

FIRST DIVISION

September 11, 1978

PEOPLE OF TILE STATE OF ILLINOIS,

Plaintiff-Appellee,

v.

HOMER HANRAHAN and MICHAEL HANRAHAN,

Defendants-Appellants.

Appeal from the Cireuit Court of Cook County.

Honorable Ropertr J. Couuis, Presiding.

Mr. Justice McGloon delivered the opinion of the court:

Defendant Homer Hanrahan and his son, co-defendant

Michael Hanrahan, were charged with conspiracy, murder,

aggravated kidnapping, and aggravated battery of Marian

Hanrahan, their respective wife and mother. In a joint

jury trial, Homer Hanrahan was found guilty and sen-

tenced to concurrent terms of 50 to 100 years for murder,

20 to 40 years for aggravated kidnapping, and 38 to 10

years for aggravated battery. Michael was found guilty

of aggravated kidnapping and aggravated battery. He was

sentenced to serve concurrent terms of 10 to 25 years for

aggravated kidnapping and 3 to 10 years for aggravated

battery.

On appeal, defendants argue that the trial court erred

(1) in refusing to suppress certain statements made by

App. 2

defendants; (2) in refusing to grant defendant Homer

Hanrahan’s motion for severance; (3) in refusing to give

the jury an instruction on involuntary manslaughter; and

(4) in denying defendants’ motion to remove the prose-

cutor from the ease since he participated in its investiga-

tion. Defendant Michael Hanrahan also argues (5) that

the jury’s verdict of not guilty of murder but guilty of

aggravated kidnapping is legally inconsistent.

We affirm.

At approximately midnight on November 22, 1974, Mary

Ellen Hanrahan, age 16, went to the Niles Police Station

to express worry about her mother, Marian Hanrahan.

She related that when she arrived home at 9:30 p.m. on

November 20, she was met at the door by her father,

defendant Homer Hanrahan. She indicated that it was

unusual for him to be there since divorcee proceedings were

pending between him and her mother and further because

he was no longer living at the home. She noticed blood on

his arm and chest which he explained was the result of a

fight between the deceased and her brother, defendant

Michael, but that everything was now settled.

Defendant Homer instructed her to go upstairs to her

room, which she did. Once there, however, she listened

at an air vent that led to the basement. She stated that

she heard the deceased scream and that she heard her

mother moan, ‘‘It hurts, it hurts.’’

A short time later, Mary Ellen heard her uncle, Gerry

Wallenberg, bringing her brother Steve home from a birth-

day party. Defendant Michael opened the door for them.

Mary Ellen stated that Michael was wearing only his

undershorts and that they too, had blood on them. When

Mary Ellen inquired what was wrong, defendant Michael

told her that the deceased threatened him and that he

App. 3

hit her in the face. He further informed her that she

could not see her because defendant Homer was in the

basement talking to her. Thereafter Mary Ellen returned

to her room and fell asleep.

The next morning, at approximately 7 a.m., Mary Ellen

was awakened by the sound of her brother, defendant

Michael Hanrahan, leaving for school. A short time later,

defendant Homer Hanrahan came into her room to tell

her to get ready for school. When Mary Ellen asked to

see the deceased, defendant assured her that everything

was all right and that her mother was still sleeping. Mary

Ellen then left for school and when she returned, at ap-

proximately 2:15 p.m., she found a note from her father,

stating that he and the deceased went on a trip and would

return in a few days. Because it was unlike the deceased

to leave without saying goodbye and because it was un-

usual for defendant Homer to spend the night at the house,

Mary Ellen went to the police station later that night and

related the above facts.

Following this conversation, the police officers accom-

panied Mary Ellen to her home. In the basement they

discovered blood and observed that the floor had been fresh-

ly mopped. They also found a blood stained mattress pad

on Marian Hanrahan’s bed and noticed that the sheets and

covers were missing. Mary Ellen checked her mother’s

closet and found that none of her clothes were missing.

Later that day, police officers went to the fraternity house

where defendant Michael Hanrahan was living. They ar-

rested him for battery to his mother and read him his

Miranda rights. He was then taken to the Niles Police

Station.

App. 4

At the station, defendant Michael made several state-

ments, after first having been read his rights on each

oceasion. One of the statements, which was introduced as

evidence during trial and is part of this appeal, was given

to officer Giovannelli. The substance of the statement was

that on November 20, 1974, defendant Michael heard his

father and the deceased arguing in the basement. When

he heard a loud crash, he ran downstairs and saw his

father, defendant Homer Hanrahan, standing over the de-

ceased with blood on him and saying ‘‘Oh my God, what

have I done?’’ Defendant Michael stated further that at

approximately 11:30 a.m. the next day, he helped his

father place the deceased in the trunk of the car and that

he heard her moan.

Before officer Giovannelli was allowed to testify concern-

ing this statement, the State objected on the ground that

the statement only incriminated defendant Homer Hanra-

han. However, defendant Homer stated that he did not

object to the statement as long as the jury was instructed

not to consider it against him. Accordingly, the court

overruled the State’s objection and admonished the jury

to consider the statement only against defendant Michael.

Sometime during the evening of November 22, 1974, the

day defendant Michael was arrested, police officers went

to the home of Roberta Stiles. Miss Stiles was purportedly

the girlfriend of defendant Homer Hanrahan. The officers

knocked on the door and were admitted by Miss Stiles.

Once inside, the officers observed defendant Homer’s brown

Chevrolet parked in the garage. The officer telephoned

assistant State’s Attorney Pappas, who advised the officers

to open the trunk to determine whether the victim was still

inside. The trunk was opened and the victim was found

inside, dead.

App. 5

Once arrested, defendant Homer was taken to the Niles

Police Station where he was questioned by Mr. Pappas.

He was also questioned by assistant State’s Attorney Gino

DiVito, who had previously questioned defendant Michael.

During the questioning sessions, defendant Homer gave

a statement, just as Michael had earlier.

During the trial, there was a discussion concerning the

method of introducing the statements of the defendants.

The trial court subsequently ruled that the statements could

be admitted without excising references to the other co-

defendant. The jury was then admonished that the state-

ments could only be used against the declarant.

Mr. DiVito testified that defendant Michael ‘Hanrahan

related the following detailed account. On November 20,

1974, at 7:45 p.m., he and his father met at a restaurant.

The purpose of the meeting was to discuss plays for hold-

ing the deceased captive until she agreed to sign title to

the house in Niles over to the children. He stated that

when they left the restaurant defendant Homer gave him

a loaded, automatic pistol. Defendant Homer then went

to purchase beer, while defendant Michael went home, ar-

riving there the same time as the deceased. They entered

together and a short time later, defendant Homer arrived.

All three of them then went into the basement where de-

fendant Michael produced a gun and demanded that the

deceased sign the house over to the children. During this

time defendant Homer was attempting to blindfold the

deceased. She struggled and in the process kicked defen-

dant Michael in the groin. In response, defendant Michael

hit her on the head with the gun, causing her to fall to

the floor unconscious. The deceased bled profusely and

the defendants used towels to clean up the blood. When

the deceased occasionally regained consciousness, defen-

dant Homer would administer chloroform.

App. 6

Defendant Michael told Mr. DiVito that a slit was then

cut into the deceased’s slacks, through which defendant

Homer injected drugs directly into her buttocks and anus.

Previously, defendant Homer had bound the deceased’s

hands and feet. When Mary Ellen and Steve came home,

they were sent directly to bed. Because both defendants

were splattered with blood, they removed their outer cloth-

ing and washed them in the washing machine. Defen-

dants later carried the deceased up to her bedroom and

defendant Michael went to sleep.

The next time defendant Michael saw the deceased was

at 6:30 a.m. the next day. She was in bed, with a bandage

wrapped around her head. Defendant Homer assured him

that everything was all right, so he left for school. When

he returned from school at approximately 10:30 a.m., he

helped defendant Homer carry the deceased from the bed-

room. She was wrapped in the sheets and blankets from

the bed and placed into the trunk of the ear. It was at

this point that defendant Michael believed he heard the

deceased groan. Ile noticed that the deceased was naked

and that her arms and legs were still tied. Before leaving

the house, defendant Homer wrote a note to Mary Ellen

and Steve, explaining that their mother and he were going

on a vacation.

Mr. DiVito also testified concerning a post-arrest state-

ment given by defendant Homer Hanrahan in the presence

of Mr. Pappas and Mr. DiVito. Mr. DiVito testified that

defendant Homer stated ‘‘Blame it all on me. I did it,

my son was not involved.’* Ile then went on to give the

location of the gun, blankets, towels, bandages, and the

deceased’s clothing. Defendant Homer identified the drug

used as Sparine and admitted injecting it into the defen-

dant’s buttocks. Defendant Homer stated that he was

App. 7

familiar with drugs because of his previous employment

as a drug salesman. He further stated that defendant

Michael hit the deceased in the head with the gun after

she procuced a knife. At this point, Mr. DiVito testified,

defendant Homer requested an attorney and the interview

then ceased.

At this point in the trial, the jury was again admonished

that the statements of each defendant could only be con-

sidered against the declarant and not against the other

co-defendant.

At the opening of the defendants’ case, defendant Homer

Hanrahan testified in his own behalf. He testified that on

November 20, 1974, he met defendant Michael at a restau-

rant at 7:45 p.m., prior to a prearanged meeting with the

deceased. ‘The purpose of the meeting with the deceased

was to work out a property settlement in their pending

divoree. He stated that he wanted to get the deceased

away from the influence of her parents while working out

the settlement.

On his way to the deceased’s house, he stopped at a liquor

store to cash a check and purchase beer. He stated that

when he arrived at the deceased’s house, he noted that her

eyes and walk appeared ‘‘funny’’. The deceased was an

epileptic and occasionally had seizures. The seizures were

never severe, but on occasion, defendant Homer had to

inject her with Sparine in order to calm her.

Defendant Homer and the deceased proceeded to the

basement where they began sorting certain bills that he

had paid and believed should be credited towards his child

support payments. He testified that during this time the

deceased began yelling and screaming incoherently and

then collapsed to the floor. When he tried to pick her

up, she produced a knife. .\ struggle ensued, during which

App. 8

two tables were overturned and he received a eut on his

hand. At this point defendant Michael entered the base-

ment and attempted to separate them. The deceased kicked

Michael and then bumped her head on a post, causing her

to fall to the floor bleeding and semiconscious. Defendant

Homer then went into the kitchen to find towels so that he

could clean up the blood.

When defendant Homer went back to the basement, de-

fendant Michael suggested that they call a doctor. Defen-

dant Homer refused, however, because he believed that the

deceased would blame him for her injuries and that he

would be arrested.

Mary Ellen had since arrived home and been sent to

bed. Because defendant Homer did not want her to hear

the deceased moaning, he injected the deceased with

Sparine. In order to do this, he eut a slit in her slacks

and attempted to administer a tablet rectally. When sev-

eral attempts failed, he injected a quantity of the drug

direetly into her anus and buttocks. At this time the de-

ceased was moaning and said ‘It hurts.’’ Thereafter,

both defendants washed their clothes and cleaned the base-

ment.

At approximately 10:15 p.m, Jerry Wallenberg, defen-

dant Homer’s brother-in-law, telephoned to say that he

was bringing Steve Hanrahan home. Fearful of being

discovered, defendant Ilomer covered the deceased’s mouth

with tape and gave her another injection of Sparine.

After Steve was sent to bed, the defendants earried the

deceased to her bedroom. Defendant Michael again sug-

gested that a doctor be called, but defendant Homer re-

fused, assuring Michael she would be fine after she ‘‘slept

it off’. Defendant Homer then undressed the deceased

and pulled covers over her.

App. 9

The next morning, after all of the children, including

defendant Michael had left for school, defendant Homer

attempted to awaken the deceased. When she would not

awaken, he realized that she was dead. Panicking, he at-

temped to lift her from the bed, but could not do so be-

cause she was too heavy and her arms and legs were too

cumbersome. In order to facilitate her eventual removal

from the room, he bound her arms and legs.

When defendant Michael unexpectedly returned home at

10:30 a.m., defendant Ilomer informed him that his mother

was dead. The two defendants then placed the body in the

trunk of the car and defendant Ilomer drove to the home

of Roberta Stiles where he was later arrested. Defendant

Michael went to a job interview.

At the conclusion of the trial, the jury found defendant

Homer Hanrahan guilty of murder, aggravated battery,

aggravated kidnapping, and conspiracy. He was sentenced

to serve concurrent sentences of 50 to 100 years for murder,

20 to 40 years for aggravated kidnapping, and 3 to 10 years

for aggravated battery. Defendant Michael Hanrahan was

found guilty of aggravated kidnapping, aggravated battery,

and conspiracy. He was sentenced to serve concurrent

sentences of 10 to 25 years for aggravated kidnapping and

3 to 10 years for aggravated battery. Defendants appeal.

On appeal, defendants first argue that the trial court

erred in denying their motion to quash the arrests and in

denying their motion to suppress the evidence and state-

ments obtained therefrom. They argue that the arrest of

defendant Michael Hanrahan was not based upon probable

cause and therefore, that all of the statements and evidence

recovered following that arrest should have been sup-

pressed.

App. 10

We disagree. In Hlinois, a police officer may arrest a

person when he has reasonable grounds to believe that

the person is committing or has committed an offense. (UL

Rev. Stat. 1977, ch. 38, par. bO7-2(e).) lurther, the test

for reasonableness of the officer's belief is whether a rea

sonable and prudent man in the officer's position and in

possession of his knowledge would believe that the person

arrested committed the offense. (People v. Garea (1976),

44 HLApp.sd 80, 357 Nd 1264.) Under the faets of

the present case, the police officers had reasonable grounds

fo believe that defendant Michael Hanrahan was guilty of

battery to his mother.

Mary Hllen Hanrahan told police officers that on the

night of November 20, L974, she heard an argument be

tween the deceased and the defendants. She also observed

blood on the defendants and heard her mother moan, ‘Ht

hurts, it hurts.’" She stated that she was refused access

fo the deceased and was told by defendant Michael that

he had hit her in the faee. ‘The next day, the deceased

was gone and so were her bed sheets and covers. When

police arrived at the Tlanrahan home, they discovered

blood in the basement and also on the mattress cover of the

deceased's bed. Consequently, we believe these faets estab

lished reasonable grounds to eause ao reasonable and

prudent man to believe that defendant) Michael Hanrahan

had committed battery to his mother, Hlis arrest) was

therefore lawful.

Defendant HTlomer Tlanrahan argues that the trial eourt

should have granted his motion for severance, based upon

the incriminating statements given by defendant Miehael.

In support of his contention that his motion to sever should

have been granted, he cites Bruton v. U.S. (1968), 391

U.S. 123.

App. 11

The present case is not analogous to the faets in Bruton.

In Bruton, two defendants were tried jointly and the eon

fession of one defendant, in which he implicated his eo

defendant who had not confessed, was admitted. Neither

defendant testified at trial Consequently, the Supreme

Court held that the eodefendant who had not confessed

was denied the right to confront his accuser. Tere, how

ever, both defendants made statements to the police that

were later introdueed at trial While defendant Michael's

statement was more detatled than defendant Homer's, both

statements were substantially similar. In faet, in the course

of a conversation with Mr. DiVito and after having been

given his rights, defendant Tlomer said ‘Blame it all on

me. TL did it, my son was not involved.’’ further, during

the trial defendant Homer even consented to the introdue

tion of defendant Michael's statement into evidenee, as long

as the jury was properly instrueted, which they were, on

several occasions,

Minally, in People v. Rosochachks (1969), 41 Th2d 483,

244 NAG 2d 136, a ease very similar to the one at present,

the court stated:

“Tt is clear to us that a very substantial difference

exists between a case in whieh a jury hears a co-defen-

dant’s statement inertminating a defendant who has

himself made similar ineulpatory admissions, and the

Brutontype ease in which the eo-defendant’s state

ment is used against a defendant who has made no

admissions. In the former case the prejudice to the

defendant, if any, is minimal, and entirely insufficient

to necessitate retrial, particularly where, as here, de

fendant’s guilt seems clear.’’ (41 TlL2d at 494, 244

N.B.2d 142.)

We believe the rationale of Rosochackt is controlling here

and therefore conclude that the trial court correetly denied

defendant Homer Tlanrahan’s motion for severance.

App. 12

Defendant Homer Hanrahan next argues that the trial

court erroneously refused his instruction on involuntary

manslaughter. He believes that an instruction on involun-

tary manslaughter was proper since the jury could have

concluded that his conduct was merely reckless.

We disagree. In order to support a murder conviction,

it is not necessary for the State to prove that the defen-

dant intended to kill the victim, but only that he volun-

tarily and wilfully committed an act which had the natural

tendency to cause death or great bodily harm. (People v.

Mitchell (1973), 12 IILApp. 8d 960, 299 N.K.2d 472.)

Similarly, in People v. Cannon (1971), 49 HL2d 162, 273

N.H.2d 829, the court held where the defendant intentionally

pointed and fired a gun into a crowd of people, though not

intending to kill anyone, the trial court did not err in

refusing an instruction on involuntary manslaughter.

In the case at bar, defendant Homer admitted that he

voluntarily and wilfully injected drugs into the deceased,

taped her mouth shut, and refused to call a doctor. Under

the rationale of Mitchell and Cannon it is clear that his

conduct cannot be construed as reckless sinee he acted of

his own volition and his acts had the natural tendeney

to cause death or great bodily harm.

Defendants next argue that the jury’s verdict finding de-

fendant Michael Hanrahan guilty of aggravated kidnap-

ping, but not guilty of murder was legally inconsistent.

They argue that such an outcome cannot stand where the

felony-murder doctrine is applicable.

We disagree. In People v. Murray (1975), 34 [LApp.

3d 521, 340 N.E.2d 186, we held that neither legal nor

logical consistency of verdicts is now required. In that

case the defendant walked into a crowded bar and began

firing a gun at patrons. One person was killed and several

App. 18

others were wounded. Defendant was found guilty of

murder but not guilty of aggravated battery. Addressing

the issue of the legal consistency of the verdicts and relying

on People v. Dawson (1975), 60 Ill.2d 278, 326 N.K.2d 755,

we stated:

‘‘We emphasize that our Supreme Court said that

even considering the ease as though it involved only

the matter of a verdict of not guilty of felony-murder

under the accountability statute and a verdict of guilty

of the same forcible felony involved, it did not agree

with the appellate court majority’s reasoning because

it thought that the appropriate consideration was that

the jury may have aequitted Dawson of felony-murder

because the jury believed that it’s conviction of Daw-

son for the armed robbery provided sufficient punish-

ment for what Dawson had done, and that that con-

sideration forbids allowing the aequittal to upset or

even to affect the simultaneous conviction. The jury’s

historic power of lenity must prevail, not only over the

risk of an occasional compromise conviction of the

lesser crime, but also over the traditional doctrine

concerning legally and logically inconsistent verdicts.

(34 LLApp.3d at 536, 340 N.K.2d at 197.)

It is clear, therefore, that Illinois no longer requires that

verdicts be legally consistent. See also People v. Parks

(1977), 49 DILApp.3d 65, 363 N.K.2d 983. Accordingly, de-

fendant Michael Hanrahan’s conviction for aggravated

kidnapping must stand.

Finally, defendants argue that it was error for the trial

court to allow assistant State’s Attorney Pappas to act

as the prosecutor in the case since he participated in its

investigation. The defendants argue that the mention of

Mr. Pappas’ name during the course of the trial pre)-

udiced their case.

App. 14

While there is little case law on the issue, we believe that

the trial court properly ruled that Mr. Pappas could act as

the prosecutor in this case. His role during the investiga-

tion of this case was relatively minor. Almost all of the

investigatory work, particularly the questioning of the de-

fendants and witnesses, was handled by other assistant

State’s attorneys or police officers. Although Mr. Pappas

testified at the motion to suppress hearing, he never testi-

fied at trial. Only once during opening statements did he

mention his involvement in the case, for which he was quick-

ly admonished by the court. Consequently, we fail to see

how the defendants were in any way prejudiced by Mr.

Pappas acting as prosecutor in this case. See People v.

Bissonnette (1974), 20 Ill.App.3d 970, 313 N.E.2d 646.

For the foregoing reasons, the judgments of the circuit

court of Cook County are affirmed.

JUDGMENTS AFFIRMED.

O’CONNOR and BUCKLEY, JJ., Concur.