# Petition — Hanrahan v. Illinois

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition
- **Published:** January 1, 1979
- **Citation:** 444 U.S. 828

## Text

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.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385006_0138%3A1. Public record. Not legal advice.