Opposition — Wolf v. Illinois

No. 78-1742 rn

SFP 6 1979

IN THI

SUPREME COURT OF THE UNITED SABO: RUDAK Jk CLERK

Ocronre Term, 197%

LOUIS WOLF,

Petitioner,

vs.

THE PEOPLE OF THE

STATE OF ILLINOIS,

Respondent.

ON PETITION FOR A

WRIT OF CERTIORARI TO THE

SUPREME COURT OF ILLINOIS

BRIEF FOR RESPONDENTS IN OPPOSITION

WILLIAM J. SCOTT,

Attorney General of the State of Hines,

DONALD B. MACKAY,

MELBOURNE A. NOEL, JR

Assistant Attorneys General

18K West Randolph Street, Suite 2200

Chicago, Hlinois 60601

(312) 793-2570,

Attorneys for Respondent

BERNARD CARLY,

State's Attorney of Cook County, Ilinors,,

$00 Richard J. Daley Center,

Chicago, Hlinois 60602

(312) 443-5496

Marcia B. Ore,

JOAN S. CHERRY,

Assistant State’s Attorneys,

Of Counsel

Ponted by Authority of the State of hac Kk 7/9 40

tp cilia, aaa.

INDEX

OPINIONS BELOW

JURISDICTION

QUESTIONS PRESENTED FOR REVIEW

STATEMENT OF THE CASI 2

REASONS FOR DENYING THE WRIT OF CERTIO

RARI 1?

a ae

THE PETITIONER RECEIVED THE FREEC

TiVi ASSISTANCI OF COUNSEI

WHERE COUNSEL WAS) PRIVATELY

RETAINED. THE PETITIONER'S DI

FENSE AT TRIAL DID NOT CONFLICI

WITH THAT OF THE CODEFENDANI

AND THERE IS NO SHOWING THAT A

DIFFERENT RESULT WOULD HAVI

OBTAINED HAD THE PETITIONER AND

THE CODEFENDANT PROCURED SEP

ARATE COUNSEI THE PETITIONER

HAS FAILED TO SHOW ANY NEED POR

THIS COURT TO GRANT HIS PETITION

FOR A WRIT OF CERTIORARI 12

THE PROSECUTION’S DISCLOSURE O}

THE IDENTITY OF THE A STATE'S WIT

NESS UNDER TWO DIFFERENT NAMES

Al THE SAME ADDRESS COMPLIED

WITH THE ILLINOIS DISCOVERY

¢ RULES AND THIS COURT'S DECISION

IN BRADY V. MARYLAND, ESPECIALLY

WHERE THE RECORD SHOWS THAT

THE DEFENSE ALWAYS KNEW THI

IDENTITY OF THE WITNESS. THE PI

TITIONER HAS FAILED TO SHOW ANY

NEED FOR THIS COURT TO GRANT HIS

PETITION FOR CERTIORARL .................

CONCLUSION ........ ana idcctaceeeah, OF

u

AUTHORITIES CITED

CITATIONS

Cases:

Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194,

PO Ene Es Me BED C ROU Piscctsrscstcsasiiaeeen

Glasser v. United States, 315 U.S. 60, 62 S.Ct.

457, 86 L.Ed 680 (1942) W.. eutibshedeuabel

Holloway v. Arkansas, 435 U.S. 475, 98 S.Ct.

BOTS, 55 L.BEZ8 426 CUFT) occcccccorsscovsccsssesseses

Napue vy. Illinois, 360 U.S. 264, 79 S.Ct. 1173, 3

Ree BOOT C CIPD incecsiscccsnssvtudcinigonssepssasnialan

People v. Berland, 74 I\\.2d 286, 385 N.E.2d 649

GBD snicosertpnvescsnsiadinnsdimiiaiiaindumaigaaatenat

People v. Craig, 47 Ill.App.3d 242, 361 N.E.2d

FRO CTE eh, COT FP icxccchatatsctedk a

People v. Henderson 36 Ill.App.3d 355, 344

PU .SO SIP C COE EI CFD icsajsiscctesntatcbnincsenias

People v. Lagios, 39 U.2d 298, 235 N.E.2d 587

OC BIRIPD icncsscsnsncesenssscecsssipitdnssesdsls Uthaasnmachiaaes

People v. Martin, 46 Ill.2d 565, 264 N.E.2d 147

CRI DY cissccasinsccksesdisttieinendenmsanacanialinetne mee

People v. Oswald, 26 Wl.2d 567, 187 N.E.2d 685

CRISS cisco, ee

CBI D. wcissnstetatnsesbatinnaibinntatesteniimadamaianbeae tices

Smith v. Regan, 583 F.2d 72 (2d Cir. 1978).......

Thacker vy. Bordenkircher, 590 F.2d 640 (6th

Sls BP UD P iccckcactncnasiosiesieicabieiedianat ani taal

United States v. Agurs, 427 U.S. 97, 96S. Ct.

239, 49 L.Ed.2d S43 ( 1976) ....ceccccccsccocsccsscessoes

United States v. Boudreaux, 502 F.2d 557 (Sth

CoE CPPS) cxcccciemsbicnienesidkcebisn eee

United States v. Donohue, 560 F.2d 1039 (Ist

GOP. Bri FD vccccckbconcsndiiscidassndsranidiemsdieiaemaes Cea

United States v. Eaglin, 571 F.2d 1069 (9th Cir.

1977) cert. den. 435 U.S. 906 oo. ccccceceeeee

United States v. Foster, 469 F.2d 1 (1st Cir.

FUT B sece aiascustbitcianshicnseaoinnediaeie letaalnaiiciantastaaenaee

Pane

20, 23, 26

16

16, 18

25

13,23

14

25

25

22

24

14, 16

15

17

23, 25

18

17

15

18

United States v. Mandell, 525 F.2d 671 (7th Cir.

1975) cert. den. 423 U.S. 1049 oe

United States v. Medel, 592 F.2d 1305 (Sth Cir.

De as sdstiserarossebaevasciesnes

United States v. Paz Sierra, 367 F.2d 930 (2d

ede cc skiduscusachedaveadnvusneheesdeess

United States v. Steele, 576 F.2d 111 (6th Cir.

1978) cert. den. 99 S.Ct. 313 oc eeees

United States v. Valenzuela, 52) F.2d 414 (8th

Cir. 1975) cert. den. 424 U.S. 916 (1976).......

United States v. Waldman, 579 F.2d 649 (Ist

Te ical doccnaadbcvvevoacenvad

Statutes

Ill. Rev. Stat. 1969, ch. 38, 20-T(Ca)Ob) oo.

ll. Rev. Stat. 1975, ch. 110 § 72...

Ill. Rev. Stat. 1973, ch. LIOA § 412 000.

20

No. 78-1742

IN THI

SUPREME COURT OF THE UNITED STATES

OcTOBER TERM, 1978

a

LOUIS WOLF,

Petitioner,

vs.

THE PEOPLE OF THE

STATE OF ILLINOIS,

Respondent.

ON PETITION FOR A

WRIT OF CERTIORARI TO THE

SUPREME COURT OF ILLINOIS

BRIEF FOR RESPONDENTS IN OPPOSITION

OPINIONS BELOW

The opinion of the Illinois Appellate Court, First District,

is reported as People v. Albert Berland, et al., 52 Il. App.3d 96,

376 N.E.2d 181 (1st Dist. 1977). The opinion of the Illinois

Supreme Court, reversing the judgment of the Illinois Appellate

Court, is reported as People v. Albert Berland, et al., 74 Il.2d

286, 385 N.E.2d 649 (1979).

JURISDICTION

The jurisdictional requisites have been set forth in the

Petition for a Writ of Certiorari. However, as treated more

fully within the following argument, the respondent does not

believe that the petitioner has shown any good reason for this

court to exercise its sound judicial discretion to grant his

Petition.

QUESTIONS PRESENTED FOR REVIEW

|. Whether the petitioner received the effective assistance

of counsel where counsel was privately retained, the petitioner's

defense at trial did not conflict with that of the codefendant and

there is no showing that a different result would have obtained

had the petitioner and the codefendant procured separate

counsel.

2. Whether the prosecution’s disclosure of the identity of a

State’s witness under two different names at the same address

complied with the Illinois discovery rules and this Court's

decision in Brady v. Maryland, especially where the record

shows that the defense always knew the identity of the witness.

STATEMENT OF THE CASE

The petitioner, Louis Wolf, was convicted of the crime of

arsen with intent to defraud an insurer in violation of Illinois

Revised Statutes (1969), ch. 38, sec. 20-1(b). He was sen-

tenced to serve a term of 1% to 4% years in the Illinois State

Penitentiary and was ordered to pay a fine of $10,000. Tried

and convicted with Petitioner Wolf was a codefendant, Albert

Berland.

THE PURCHASE OF THE SUBJECT PROPERTY

The subject premises in the instant case, a partially occu-

pied, multi-unit, three story, dilapidated apartment building.

located at 715 South Lawndale Street, in Chicago, Illinois, was

purchased by petitioner's codefendant, Berland for $18,000 in

1966. On November 19, 1969, the building was partially

consumed and rendered permanently damaged in an arson fire.

Both the petitioner and Berland were involved in the

building's purchase. During the purchase negotiations, Berland

introduced petitioner to the seller as the prospective buyer, and

represented himself to be the broker. (People’s Exhibit No. 3

at 118, 119; People’s Exhibit No. 5 at 146; R. 465, 477, 478!

Petitioner testified that when the original contract was made to

purchase the property, he contacted the owner and purchased

the property alternatively, in his name or in the name of his

nominee. (R. 477-478)

Both the petitioner and Berland were involved in the chain

of title to 715 South Lawndale. At one point the beneficiary of

the trust was listed as “Fred Cooper.” (People’s Ex. No. 5 at

68; see also People’s Ex. No. 14) “Fred Cooper” was an alias

used by Albert Berland. (People’s Ex. No. 5 at 70) Signifi-

cantly, Cooper’s address was given as 1614 South Kedzie and

2840 North Broadway. (People’s Ex. No. 14) Both of these

locations were in fact business addresses of, petitioner Louis

Wolf. (People’s Exhibit No. 4, at 56; People’s Exhibit No. 3, at

72, 75)

In addition, for a period of time, the name William Berke

appeared as the beneficiary to the trust in which was placed the

title to 715 South Lawndale. (People’s Ex. No. > at 143)

‘R. designates the transcript of record. R. C designates the

common law record. People’s Exhibit refers to those exhibits

introduced into evidence at trial by the People, the respondent here.

Pet. Post-Trial Exhibit refers to those exhibits introduced into evi-

dence during the arguments on petitioner-defendant’s post-trial mo-

tions.

William Berke was petitioner’s nephew. His name appeared as

beneficiary as a result of a loan made by petitioner to Berland.

As collateral for this loan, Berland named Berke as beneficiary

( People’s Ex. No. 5, at 143; People’s Ex. No. 2, at 43; R. 503-5)

The petitioner was heavily involved with Berland in the

management of and collection of rents from 715 South Lawn.

dale. Soon after the building became Berland’s property

petitioner Wolf offered his services to find good tenants for

Berland, and to collect rents. (People’s Ex. No. 5, at 65, 66)

From September, 1969, until the fire in November, 1969,

petitioner again lent his services to Berland at Berland’s request.

(People’s Ex. No. & at 298; People’s Ex. No. 5, at 64)

Petitioner and petitioner’s employee attempted to collect the

rents from 715 South Lawndale. (People’s Ex. No. 5, at 126.

66) Petitioner would also examine the building's physical

condition, (People’s Ex. No. 1, at 20) buy coal for the building,

(People’s Ex. No. 5, at 127) and would, at times, refer various

subcontractors to Berland. (People’s Ex. No. 3, at 121)

Most of these facts petitioner admitted as being true

(People’s Ex. No. 1, at 20; People’s Ex. No. 3, at 121; People’s

Ex. No. 7, at 468; R. 467) Petitioner's repeated presenc

around the building was corroborated by the two eyewitnesses,

Albert Kyles and Evelyn Mayberry, who also testified at trial

that petitioner was at the scene of the fire. Albert Kyles had

seen petitioner collect the rent from his aunt who had pre-

viously lived in the building at 715 South Lawndale. (R. 111,

128) Kyles had even once paid the rent to petitioner himself.

(R. 130) Petitioner admitted that he had possibly collected the

rent at 715 South Lawndale as many as ten times. (R. 499)

When petitioner collected the rents it was at Berland’s request

(R. 498-499) Evelyn Mayberry had seen petitioner around 715

South Lawndale on the Sunday, Monday and Tuesday previous

to the fire on Wednesday. (R. 141)

The petitioner was so involved with the management of

Berland’s building that in October, 1969, petitioner filed a suit

against Thelma Dillon, a tenant in 715 South Lawndale.

(People’s Ex. No. 6, at 35; People’s Ex. No. 8, at 317; Wolf v.

Dillon, 69 M1 80679 filed October 14, 1979) in his own name

on Berland’s behalf.

The evidence at trial showed that the building at 715 South

Lawndale was a disastrous financial venture. During the two

years prior to the fire, Berland’s proceeds from the rental

property had steadily diminished. In the month prior to the

fire, only $250 in rent payments were collected, only 2 of the 4

tenants were paying rent and the building was two-thirds

vacant. (People’s Exhibit No. 5 at 5, 104)

Berland had attempted to sell the building on contract

three times during the two years prior to the fire: For one

reason or another every buyer defaulted on the purchase of the

building. (People’s Exhibit No. 5 at 59-62)

Berland had been cited by the City of Chicago for over 35

building code violations concerning the subject premises. The ©

City of Chicago had asked for a fine of $6,800 or the correction

of the code violations. The cause was continued until Novem-

ber 20, 1969, but on November 19, 1969, the day before the

scheduled hearing the building was set on fire and burned.

(People’s Group Exhibit No. 14)

THE FIRE INSURANCE AND THE FRAUDULENT

INSURANCE APPLICATION

On June 30, 1969, an application for fire insurance was

received by the Illinois Fair Plan Association. The application

was submitted on behalf of the Lawndale National Bank, Trust

Number 4946, with Albert Berland, listed as the owner of the

subject building. Berland listed the value of the property as

$125,000 and requested $100,000 worth of coverage. The

application contained the question, “give the applicant's five-

fy

vear loss record for fire and extended coverage perils “(Ro 71)

(People’s Group Exhibit No. 9) Berland stated on the appli

cation that he had no history of fire losses in the five years prior

to the application date of the policy. (People’s Exhibit No. 10)

Since 1967. and prior to the fire in 1969. Berland sustained fire

losses on eight separate occasions. (People’s Exhibit Nos. 5 at

15, 17, TR, 20, 21, 24, 26, 27, 28) Albert Berland’s signature

appeared on the policy application. (R. 63-65)

Prior to submitting the application. Berland brought it to

the petitioner. to have it notarized. (People’s Exhibit No. &, p

415). The application was purportedly notarized by Maurice

Blumenthal on June 20. 1969 (People’s Exhibit No. 9). which

was slightly over nine months after Blumenthal’s death in an

automobile accident. (People’s Exhibit No. 13) The statement

on the notary license said that it would expire in November of

1970. However, if Blumenthal had lived his license would have

expired in February, 1971. (People’s Exhibit No. 12)

On August 13, 1969, the American Casualty Company of

Reading. Pennsylvania, a member of the Fair Plan Group (R

66). issued a $100,000 insurance policy on 715 South Lawndale

for the period of one year. (People’s Ex. No. 9; R. 67-69)

THE ARSON FIRE

Evelyn Mayberry testified that. on the date of the fire. she

lived at 716 South Lawndale in an apartment across the street

from the subject premises. Two men in a dark colored station

wagon pulled up on Lawndale Street going north. They parked

on the east side of the street and sat in the car for a while

looking up and down the block. It appeared as if they were

watching to see if anyone was coming. The man on the driver's

side exited and took a gasoline can out of the back of the station

wagon. He went into the building at 715 South Lawndale

Then the other individual took a ladder out of the station

wagon and also entered the building at 715 South Lawndale

Mrs. Mavberry identified petitioner. Louis Wolf. as the man

who carried the gasoline can into the building (R. 144-149)

Mrs. Mayberry recognized the first individual. the one who

took the gas can out of the automobile. because she had seen

him the previous Sunday. November 16. 1969. That day

petitioner and another man were parked in the alley just east of

her apartment building She watched him for about five

minutes that day but did not know what he was doing. On the

Monday prior to the fire. she saw petitioner taking the locks off

715 South Lawndale. Again. he was accompanied by another

individual On Tuesday, Wolf and another man drove by the

building two or three times in a dark colored station wagon

(R. 149-141)

Albert Kyles testified that on the morning of November 19.

1969. he was sitting on the front steps of the apartment

building. directly across from 715 South Lawndale. He saw

two men ina station wagon pull up in front of the building and

park across the street from where he was sitting Both men

exited from the car. The driver carried a gas can and the other

man went around to the back of the station wagon and took out

a ladder’ Mr. Kyles saw both men enter the building. In court.

Mr. Kyles identified petitioner as the man who was the driver of

the car (R. 105-107) Albert Kyles had seen petitioner collect

the rent from his aunt who had previously lived in the building

at 715 South Lawndale. (R. II. 128) Kyles had even once

paid the rent to petitioner himself. (Ro 130) Petitioner stated

that he had possibly collected the rent at 715 South Lawndale

as many as tentimes. (R. 499)

Petitioner Wolf was carrying the gasoline can and was

leaning to one side. as if there was something in the can. The

men went into the building and exited a few minutes later

When petitioner came out of the building Mr. Kyles noticed

that he was swinging the gas can as if it were empty. The two

men got into the car and drove off (Ro 1OR-109)

After several minutes elapsed Mr. Kyles noticed that there

was smoke coming from the building at 715 South Lawndale.

The fire department arrived and Mr. Kyles remained at the

scene.

After the fire was extinguished, Lieutenant Burns of the

Chicago Fire Department entered the premises at 715 South

Lawndale. He determined that the fire began in a vacant third

floor apartment in the bathroom. The bathroom contained no

materials that would sustain combustion. Lieutenant Burns

testified that the fire burned downward and said that “heat or

fire never burns downward unless there is an outside force of

some sort, and in this particular instance it would be an

accelerant.” (R. 168-169) Lieutenant Burns’ extensive testi-

mony showed that the fire was not of natural origin and was

caused by an accelerant.

At trial, petitioner presented an alibi defense which the

Illinois Supreme Court later characterized as a “recent con-

coction,” and being of “recent origin.” The Court held that

“The identification was strong and the alibi was impeached.”

People v. Berland, supra, 74 \ll.2d at 307. The petitioner stated

that on the morning of the fire he was at the offices of his

attorney, Samuel Siegel. (R. 489) Three alibi witnesses, Ted

Allen, Anton Caithaimer and Samuel Siegel testified that they

were with the petitioner at that meeting. As the Illinois

Supreme Court said:

Ted Allen had no recollection of the date of the meeting

until he spoke with Wolf, Caithaimer, and Siegel on the

day he testified. Siegel had no independent recollection of

the meeting until he looked at his appointment calendar.

but the calendar did not note a meeting with Wolf on that

day. Caithaimer was teaching school when he testified he

was meeting with Wolf. Siegel testified contrary to

Caithaimer and Allen concerning who had lunch with

Wolf. Berland, supra, at 306-307

THE ALLEGED SUPPRESSION OF EVIDENCE

The Illinois Supreme Court held that the prosecutor had

not suppressed any evidence in the instant case, Berland, supra,

74 Til. 2d 286 at 311-312, and that it was not error to list the

same individual, Evelyn Mayberry under two separate names at

the same address in the State’s answer to discovery. The Illinois

Supreme Court held that petitioner Wolf was not deprived of

any evidence material to his guilt and was not denied a fair

trial. Additionally, the Illinois Supreme Court held that all of

the evidence about which the petitioner complains was known

or should have been known to the petitioner prior to trial

Berland, supra, 74 Ill.2d 286, 314.

The record is replete with examples which show that the

petitioner always was aware that Evelyn Mayberry and Eliza-

beth McGowan were the same individual, and the record also

shows that the State complied with discovery procedures.

The facts necessary to show that the petitioner was not

prejudiced and that the Illinois Supreme Court properly deter-

mined this issue are contained in the argument.

THE TRIAL AND THE APPEAL

The petitioner and Berland were charged with the crime of

arson, committed with intent to defraud an insurer, in violation

of Illinois Revised Statutes (1969), ch. 38, sec. 20-1(b) of the

Criminal Code. They were also charged with conspiracy to

commit arson in violation of Illinois Revised Statutes (1969),

ch. 38, sec. 8-2. Petitioner, was charged with arson (burning a

building without the owner’s consent) in violation of Illinois

Revised Statutes (1969), ch. 38 sec. 20-I1(a). On May 11,

1973, the grand jury returned the indictment ( No. 73-1441 ) in

the instant cause. (R. C4-7) Berland and the petitioner hired

one private counsel to conduct their defense. During the

10

presentation of the State’s case in chief petitioner procured

additional counsel to represent him during the trial. (R. 202)

Count one of the indictment charging petitioner with arson, in

that he burned a building without the owner’s consent, was

nolle prossed at the close of the State's case-in-chief.

Both Beriand and petitioner pleaded not guilty. Petitioner

testified and denied his presence at the scene of the fire.

Neither Berland nor petitioner sought to establish his defense

by implicating the other.

After a bench trial, both the petitioner and Berland were

found guilty of arson, with intent to defraud an insurer, and

conspiracy to commit arson. A motion in arrest of the judgment

on the conspiracy count was granted on the basis that the

applicable statute of limitations had expired. The petitioner

was represented by new counsel at the extensive argument on

the post-trial motions. The petitioner was sentenced to serve a

term of 12 to 4'2 years in the Illinois State Penitentiary and was

ordered to pay a fine of $10,000.

Following the petitioner’s conviction he filed a timely

appeal to the Illinois Appellate Court, First District. That court

reversed the petitioner's conviction for arson with the intent to

defraud an insurer on the basis that petitioner had been denied

the effective assistance of counsel due to counsel's alleged

conflict of interest, on the basis that the State failed to prove

petitioner guilty beyond a reasonable doubt in that credence

should have been given to the alibi witnesses and that one of

the witnesses had been listed in the list of witnesses under two

different names. People v. Berland, 52 Ill. App. 2d 96, 376

N.E.2d 18, (Ist Dist. 1977). rev'd. 74 Ill. 2d 286, 385 N.E. 2d

649 (1979).

Pursuant to the provisions of Illinois Revised Statutes

(1977) ‘ch. LIOA, sec. 615, the People of the State of Illinois

petitioned the Illinois Supreme Court for leave to appeal the

judgment of the Illinois Appellate Court, First District. The

Illinois Supreme Court granted leave to appea! and reversed

the judgment of the Illinois Appellate Court, First District.

People v. Berland, 74 Ill.2d 286, 385 N.E.2d 649 (1979). In its

opinion the Illinois Supreme Court held inter alia, that there

was no actual conflict of interest in privately retained defense

counsel's joint representation of petitioner and his co-

defendant, that counsel’s representation was competent, that

the petitioner was proved guilty of arson with intent to defraud

an insurer beyond a reasonable doubt and that the People did

not suppress any evidence favorable to the petitioner.

The petitioner filed a petition for rehearing in the Illinois

Supreme Court in which he challenged the trial court’s dis-

missal of two petitions for relief under section 72 of the Illinois

Civil Practice Act (Ill. Rev. Stat. 1975, ch. 110, sec. 72) In

Illinois, a proceeding pursuant to section 72 is a collateral

>roceeding “to correct all errors of fact occurring in the

prosecution of a cause, unknown to the petitioner and the court

at the time of trial, which, if then known, would have. prevented

the judgment.” Berland, supra, 74 Ill. 2d 286, at 314. Appeals

from the trial court’s dismissal of the two section 72 petitions

were consolidated with the direct appeal in the Illinois Supreme

Court.

The Illinois Supreme Court affirmed the judgment of the

trial Court stating that everything the petitioner had raised was

presented to the trial court either on the post-trial motions or at

the hearings on the two section 72 petitions. Matters considered

by the court included petitioner’s allegations that certain wit-

nesses at trial had perjured themselves. The Illinois Supreme

Court held that the allegations in the petitions and supporting

documents and exhibits did not support a charge of perjury and

therefore offered no basis for an evidentiary hearing or for

reversal.

It is from the decision of the Illinois Supreme Court that

the petitioner brings this petition for certiorari.

12

REASONS FOR DENYING THE WRIT OF CERTIORARI

| I.

THE PETITIONER RECEIVED THE EFFECTIVE AS-

SISTANCE OF COUNSEL WHERE COUNSEL WAS

PRIVATELY RETAINED, THE PETITIONER'S DEFENSE

AT TRIAL DID NOT CONFLICT WITH THAT OF THE

CODEFENDANT AND THERE IS NO SHOWING THAT A

DIFFERENT RESULT WOULD HAVE OBTAINED HAD

THE PETITIONER AND THE CODEFENDANT PRO-

CURED SEPARATE COUNSEL. PETITIONER HAS

FAILED TO SHOW ANY NEED FOR THIS COURT TO

GRANT HIS PETITION FOR A WRIT OF CERTIORARI.

The petitioner seeks the granting of a writ of certiorari by

this Court, and claims that the facts in the instant case would

allow resolution of the questions of how strong a showing of

conflict of interest must be and the scope of the duty of the trial

court in cases where jointly represented defendants have alleg-

edly conflicting interests. (Pet. for Cert. at 12-13) The

respondents maintain, however, that the facts in the instant case

neither permit the formulation, nor the resolution of either

question posed by the petitioner. Moreover, the respondent

notes at the outset that a petition for a writ of certiorari is

improperly brought upon this basis, for the petitioner has failed

to show that the Illinois Supreme Court has decided such a

question in a way probably not in accord with applicable

decisions of this Court. See, Rule 19(1)(a) of the Supreme

Court of the United States. Although the petitioner has

completely failed to show the need for this Court, in its sound

discretion, to grant his petition, the respondent, believing that

the Illinois Supreme Court has properly determined this issue

upon the merits will briefly address those merits.

The Illinois Supreme Court in its opinion below in the

instant case, held that “a defendant must show actual conflict of

interest manifested at trial in order to prevail in a constitutional

claim of ineffective assistance of counsel due to joint representa-

~~ a

13

tion of co-defendants by a single attorney.” People v. Berland,

74 Ill.2d 286, 289, 300, 385 N.E.2d 649 (1979). The petitioner

has not shown, and cannot show, that an actual conflict of

interest existed under the instant facts.

The indictment returned against the petitioner and his co-

defendant consisted of three counts. Only counts one and two

are relevant here. Count one charged petitioner, Louis Wolf

with arson, in that he burned the apartment building located at

715 South Lawndale, Chicago, without the consent of the

owner, in violation of Illinois Revised Statutes (1969) Ch. 38,

§ 20-!(aj. (R. C4) Count two charged both petitioner, Louis

Wolf, and Albert Berland, with the crime of arson, committed

with the intent to defraud an insurer, (R. C5) in violation of

Illinois Revised Statutes (1969) Ch: 38 § 20-1(b). Count one

of the indictment, which charged Wolf with burning a building

owned by Albert Berland, without his consent, was nolle prossed

on the People’s motion at the close of the People’s case when

the court stated that it would preclude proof on both counts one

and two. (R. 321) The petitioner and his codefendant were

convicted on count two of the indictment which charged them

with arson with intent to defraud an insurer. Petitioner and his

codefendant were represented at trial by one privately retained

counsel. Additional counsel was hired by the petitioner and

entered his appearance during the presentation of the State’s

case in chief. New, privately retained counsel represented the

petitioner during the post-trial motions and on appeal.

The Illinois Supreme Court held that the record in the

instant case was “devoid of any evidence of an actual conflict of

interest.” Berland, supra, 74 Ill. 2d at 300. The respondent

submits that the Illinois Supreme Court was clearly correct.

Wolf's defense was that he was not present at 715 South

Lawndale at the time the crime occurred. He stated that he did

not know about the fire until several days to a week after the

loss. (R. 489) Petitioner Wolf presented an alibi defense to

14

show that he was at the law office of Mr. Samuel Siegel on the

morning of the fire. Berland did not present an alibi defense

and the trial court acknowledged that there was no evidence

showing Berland’s presence at the scene of the fire. Berland’s

defense was basically one of denial and he presented testimony

in an attempt to show that the building was not over insured in

an effort to negate the prosecution’s evidence of motive.

Clearly, there was no conflict in these defenses and neither

defendant sought to implicate the other. People v. Somerville,

42 Ill.2d 1, 9, 245 N.E.2d 461 (1969); People v. Craig, 47 Ill.

App.3d 242, 361 N.E.2d 736 (Ist Dist. 1977).2

The petitioner speculates that defense counsel's representa-

tion of him was hampered because of privately retained

counsel’s representation of the codefendant. The Illinois Su-

preme Court has specifically rejected creating a “conflict of

interest out of mere conjecture as to what might have been

shown.” People v. Somerville, 42 Ill. 2d 1, 245 N.E.2d 461

(1969).3

In the instant case, neither Berland nor petitioner was

attempting to establish his defense by implicating the other.

Moreover, there was no reason to assume that petitioner would

ever try to show that Berland burned the building had he been

represented by different counsel or even if he had been tried

separately. The evidence clearly did not show that Berland was

present at the scene of the fire, as the trial judge acknowledged.

There is absolutely no reason that can be inferred from any

testimony as to why petitioner would burn the building without

2In this brief in the Illinois Supreme Court, petitioner Wolf

conceded that the defenses presented at trial were not antagonistic.

(Brief for Defendant Wolf, at 44, Ill. Sup. Ct. Docket No. 50012)

3In United States v. Steele, 576 F od 111 (6th Cir. 1978), the

sixth circuit court of appeals declined to adopt a per se rule under the

sixth amendment requiring jointly represented defendants to be

advised of their right to separate counsel in cases where, as here, joint

counsel was privately retained.

15

Berland’s consent. For petitioner to have taken such an action

is out of the question. He testified that he had been friends with

Berland for over thirty years. There is no evidence that they

had any type of disagreement, or that Berland owed petitioner

any money. Clearly, any allegation of conflict of interest is pure

speculation. Their defenses did not conflict with one another.

The Illinois Supreme Court’s position in Somerville, supra,

of refusing to reverse a conviction because of speculation to

what might have been, has been followed by a number of

Federal Circuit Courts of Appeals. United States v. Medel, 592

F.2d 1305 (Sth Cir. 1979); United States v. Steele, 576 F.2d

111 (6th Cir. 1978) cert. den. 99. S.Ct. 313; United States v.

Mandell, 525 F.2d 671 (7th Cir. 1975) cert. den. 423 U.S. 1049;

Smith v. Regan, 583 F.2d 72 (2d Cir. 1978); United States v.

Eaglin, 571 F.2d 1069 (9th Cir. 1977) cert. den. 435 U.S. 406.

United States v. Valenzuela, 521 F.2d 414 (8th Cir. 1975) cert.

den. 424 U.S. 916 (1976).

Moreover, the petitioner’s cause was advanced by counsel

without sacrificing his interests in favor of the codefendant

before trial, during the prosecution’s case in chief, and during

the defense case in chief. Counsel conducted a pre-trial

investigation, filed and argued pre-trial motions, made objec-

tions to various exhibits, argued points of law, cross-examined

the State’s witnesses and presented a defense. The petitioner

cannot and does not point to anything in the cross-examination

of the State’s eyewitnesses or any witnesses which would show

that petitioner’s interests were sacrificed in favor of the codefen-

dant.

Additionally, during the presentation of the State’s case in

chief petitioner Wolf hired a second attorney. (R. 259) At the

conclusion of the State’s case in chief the State nolle prossed

Count One of the indictment. When the defense presented its

case the only count on which the co-defendant and the petition-

er were being tried was Count Two.

16

The respondent submits that the instant case is precisely

the type of case where a joint representation is more effective

for the defendants. As the Court of Appeals said in United

States v. Medel, supra, 592 F.2d 1305, 1312 (Sth Cir. 1979),

“when the parties’ interests were so closely related, if either had

suggested that the other party was guilty, then this allegation

might have worked to the detriment of the accusing party.” As

Mr. Justice Frankfurter said in his dissent in Glasser v. United

States, 315 U.S. 60, 92, 62 S.Ct. 457, 86 L.Ed. 680 (1942),

quoted approvingly in Holloway v. Arkansas, 435 U.S. 475, 98

S.Ct. 1173, 55 L.Ed2d 426 (1978), “Joint representation is a

means of ensuring against reciprocal recrimination. A common

defense often gives strength against a common attack.” This

Court in Holloway clearly enunciated that, “Requiring or per-

mitting a single attorney to represent co-defendants, .. . is not

per se violative of constitutional guarantees of effective assis-

tance of counsel.” Holloway supra, 435 U.S. at 482.

The Illinois Supreme Court extensively discussed both the

holdings in Glasser v. United States, supra, and Holloway,

supra, in their opinion in Berland, supra.

The court has refused an invitation to require trial judges

to ascertain that co-defendants’ decisions to proceed with

one attorney are informed (People v. Somerville (1969).

42 Ill. 2d 1,10). The crucial determination is whether there

is a conflict, since absent such conflict there is no threat to a

defendant’s right to the assistance of separate counsel.

Neither Glasser v. United States, (1942), 315 U.S. 60, 86

L.Ed. 680, 62 S.Ct. 457, nor Holloway v. Arkansas, (1978),

435 US. 475, 55 L.Ed. 2d 426 98 S.Ct. 1173, indicate that

a pretrial inquiry and waiver of separate counsel is man-

dated in all cases of joint representation. Because joint

representation is not per se unconstitutional there is no

need to require judicial inquiry until the conflict appears.

The language in Glasser and Holloway that it is the duty of

the trial judge to see that the trial is conducted with

solicitude for the essential rights of the accused is directed

specifically to trial court insistence upon joint representa-

17

tion where counsel or the defendant has requested separate

representation. Since there was no conflict here, judicial

inquiry was not required. Berland, at 305.

There was no objection to joint representation voiced by

privately retained counsel nor by the petitioner or his codefen-

dant in the instant case and there was no actual conflict. The

facts of the instant case, therefore, do not fall within the ambit

of Holloway v. Arkansas, supra, and render Holloway in-

applicable to the case at bar. See Thacker v. Bordenkircher,

590 F.2d 640 (6th Cir. 1979).

The petitioner urges that this Court grant a writ of

certiorari to determine whether it is a per se violation of the

Sixth Amendment to permit joint representation of co-

defendants in the absence of an inquiry or an admonishment by

the trial court. (Pet. for Cert. at 15-16) He also inquires as to

what degree of prejudice must be demonstrated by a defendant

to show that his Sixth Amendment rights have been violated.

Neither the formulation nor the resolution of this question are

allowed by the facts of this case. The petitioner cannot show, in

any way, that he was prejudiced by counsel’s joint representa-

tion of him and his codefendant or that an actual conflict

existed.

As support for his position the petitioner relies on United

States v. Waldman, 579 F.2d 649 (Ist Cir. 1978) and states

that Waldman holds that the “failure of the judge to adequately

alert the defendant to the dangers of joint representation is per

se violative of the Sixth Amendment.” (Pet. at 15-16) Yet,

Waldman does not so hold. The decision in Waldman, which

was handed down subsequent to another First Circuit case,

United States v. Foster, 469 F.2d 1 (1st Cir. 1972), cited in

Waldman, was decided as was Foster, pursuant to that circuit’s

supervisory powers, Waldman, supra, at 652, rather than being

founded on constitutional grounds. In a footnote (Pet. at 16)

the petitioner, citing Waldman, and United States v. Donohue,

18

560 F.2d 1039 (Ist Cir. 1977), quotes that portion of the

opinion which deals with the type of inquiry required by the

trial judge in joint representation situations in the First Circuit.

The respondent notes, however, that the Waldman Court went

on to say,

[ W Je do not think that any specifics of the form a court’s

inquiry concerning a defendant’s waiver of separate coun-

sel would rise to the level of a constitutional right... .

[W]e view Donahue as merely expanding a supervisory

rule,... Waldman at 652.

The Court affirmed Waldman’s conviction.

Additionally, the First Circuit has stated that it does not follow

a rule of per se reversal. United States v. Foster, supra, 469

F.2d (Ist Cir. 1972). A number of the Circuit Courts of Appeal

have declined to exercise their supervisory powers and imple-

ment an affirmative inquiry requirement on the trial court.

United States v. Mandell, supra, 525 F.2d 671 (7th Cir. 1975)

(cert. den. 423 U.S. 1049) and the cases cited therein at 676.

As the Court of Appeals said in United States v. Mandell,

supra, 525 F.2d 671 (7th Cir. 1975) cert. den. 423 U.S. 1049,

“the primary responsibility for the ascertainment and avoidance

of conflict situations must lie with the members of the bar.

Accord, United States v. Paz-Sierra, 367 F.2d 930, 932-933 (2d

Cir. 1966); United States v. Boudreaux, 502 F.2d 557 (Sth Cir.

1974). This Court in Holloway v. Arkansas, supra, held that

“an attorney representing two defendants in a criminal matter

is in the best position professionally and ethically to determine

when a conflict of interest exists or will probably develop in the

course of a trial.” 98 S.Ct. 1173 at 1179.

For all of the above stated reasons, the respondent urges

that because the Illinois Supreme Court properly decided this

issue on the merits, because the decision of the Illinois Supreme

19

Court is in accord with the decisions of this Court, and because

the petitioner has failed to show any need for this Court to

grant his petition for a Writ of Certiorari, such petition should

be denied.

THE PROSECUTION’S DISCLOSURE OF THE

IDENTITY OF THE A STATE’S WITNESS UNDER TWO

DIFFERENT NAMES AT THE SAME ADDRESS COM-

PLIED WITH THE ILLINOIS DISCOVERY RULES AND

THIS COURT'S DECISION IN BRADY v. MARYLAND,

FSPECIALLY WHERE THE RECORD SHOWS THAT

THE DEFENSE ALWAYS KNEW THE IDENTITY OF

THE WITNESS. PETITIONER HAS FAILED TO SHOW

ANY NEED FOR THIS COURT TO GRANT HIS PETI-

' TION FOR CERTIORARI.

The petitioner also prays for the granting of a writ of

certiorari by this Court on the basis that the prosecution

allegedly suppressed the identity of an eyewitness, Evelyn

Mayberry, who was also known as Elizabeth McGowan, by

causing her to be listed under both names, at the same address,

in the State’s answer to discovery. The petitioner claims that he

did not learn of this evidence until after trial and had he known

that Mayberry and McGowan were the same person he could

have impeached the witness with a prior, allegedly inconsistent,

statement. He also alleges that Mayberry’s testimony was

perjured and that the State knowingly condoned the use of this

allegedly perjured testimony. In answer, the respondent main-

tains that a petition for a writ of certiorari is improperly brought

upon this basis, for the petitioner has failed to show that the

Illinois Supreme Court has decided a federal question of

substance not theretofore determined by this Court or that the

Illinois Supreme Court has decided such a question in a way

probably not in accord with the applicable decisions of this

Court. See Rule 19(1)(a) of the Supreme Court of the United

20

States. Although the petitioner has failed to show the need for

this Court, in its sound discretion, to grant his petition, the

respondent, confident that the Illinois Supreme Court has

properly determined this issue will briefly address the merits.

In summary, the respondent maintains (1) that in

supplying the list of witnesses to the petitioner both the Illinois

Supreme Court Rules on Discovery and the dictates of Brady v.

Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed. 2d 215 (1963),

were complied with and no evidence was suppressed (2) that

the petitioner always knew that Evelyn Mayberry and Elizabeth

McGowan were the same person (3) that it was clear that

wpetitioner did have the witness’ prior statements at trial and

attempted to impeach her with them at trial (4) that there was

no material inconsistency in the witness’ testimony (5) that

another eyewitness corroborated the witness (6) and that there

was absolutely no evidence of perjury on the part of the State’s

witnesses anywhere in the record. The Illinois Supreme Court

in its opinion considered all points raised here by the petitioner

and correctly resolved the issue against the petitioner.

The respondent submits that the petitioner was always

aware of the fact that the witness had been listed under both

names, at the same address, on the State’s list of witnesses and

that doing so was an unintentional act which occurred as result

of the State’s desire to completely comply with discovery

requirements. Ill. Rev. Stat. 1973, Ch. LIOA § 412. It is clear

that the dual listing of the names was an act from which no

harm flowed. It is also obvious that defense counsel knew

about, and intended to utilize the witness’ prior statements to

impeach her. During the trial of the instant case, defense

counsel on cross-examination, attempted to impeach Evelyn

Mayberry by asking her the following question: Did you ever

tell anyone that you saw a man walk in there with a mop

bucket? (R. 147) The only ume Mrs. Mayberry stated that she

saw a man carrying a bucket was in the original police report

21

where, in describing the incident, she was erroneously identified

as Elizabeth “McGowan” rather than as Evelyn, wife of

Roosevelt McGowan. (R. C116; Pet. Post Trial Ex. No. 2)

An Illinois Bureau of Investigation report of a March 19,

1971, interview with Evelyn Mayberry was also made available

to the defendant. (R. C123-4; Pet. Post-Trial Ex. No. 3) and

the fact that she had been interviewed was even brought out by

defense counsel during his cross-examination of her. (R. 148-

149) In that report Evelyn Mayberry was identified as the

common-law wife of Roosevelt McGowan. The account given

by Evelyn Mayberry to the investigator for the Illinois Bureau

of Investigation was substantially the same as the account given

by her in the original police report where she was erroneously

identified as Elizabeth rather than Evelyn. She said she saw

two white male subjects enter 715 South Lawndale, one of

whom was carrying an aluminum can. She then stated that she

left for the store. (R. C116, 123-4, Pet. Post-Trial Exhibit

Number 2)

At the civil trial in Federal District court where the fire

insurance claim was litigated Evelyn Mayberry testified that she

saw two men park a black station wagon in front of 715 S. .

Lawndale. She saw them go into the building and one of the

men was carrying a can. Then she went grocery shopping.

(Pet. Post-Trial Ex. No. 4 at 56-57) At that trial she identified:

herseif as Mrs. Roosevelt McGowan, not as Elizabeth. ( Pet.

Post-Trial Ex. No. 4 at 55) During her testimony she said that

Mr. McGowan was her husband. ( Pet. Post-Trial Ex. No. 4, at

76)

In addition, Mrs. Mayberry, testifying in federal court

under the name, Mrs. Roosevelt McGowan, stated on cross-

examination, that on the evening of November 19, 1969, the

police had brought a man in a car in front of their house to see

if her husband, Roosevelt McGowan could identify him. (Pet.

Post-Trial Ex. 4 at 71-73) This same information is contained in

22

Evelyn Mayberry’s statement to the Illinois Bureau of In-

vestigation. (R. C 124) In that statement in which she is

described as being the common-law wife of Roosevelt

McGowanr, sne states that the police came for Roosevelt

McGowan. They asked him to “go out to the car with them.”

She did not know if he identified anyone at that time. (R. C

124)

Prior to the trial in Federal District court, Mr. Roosecelt

McGowan was deposed. When he was asked what his wife’s

name was, he said it was Evelyn, ( Pet. Post-Trial Ex. No. 7 at 3;

R. 700) He also stated that his wife left for the store before the

fire started. (Pet. Post-Trial Ex. at 14) At the trial of the

instant cause she used her previous name, Evelyn Mayberry,

rather than McGowan. (R. 124) Again, her story was substan-

tially the same one she recounted on previous occasions. She

saw two men drive up to the front of 715 South Lawndale. One

man carried a gas can and they both entered the building.

Then she left for the store. (R. 136-139)

On September 28, 1973, approximately three months prior

to the instant trial, a defense investigator interviewed Evelyn

Mayberry when she was in the hospital suffering from a gall

bladder condition. (R. 825-826, 840-841, 861-862) This

interview, made part of the record during the argument on the

petitioner’s post-trial motions (R. 826, 861-862), demonstrates

that a defense investigator saw and spoke to Evelyn Mayberry

in the hospital and made a written report of this to defense

counsel. Certainly, the knowledge of the defense investigator is

attributable to the defense attorney, as the knowledge of a

police officer is attributable to a prosecutor. People v. Marlin,

46 Ill. 2d 565, 264 N.E. 2d 147 (1970).

In short, Evelyn Mayberry never claimed at any time to be

Elizabeth McGowan. Apparently, when she and her common-

law husband. Roosevelt McGowan, were first interviewed by

the police her name was erroneously listed as Elizabeth rather

te zee ae

23

than Evelyn. (R. C116) The only time she used the last name

of McGowan was during the civil trial in Federal District Court

and then she was known as Mrs. Roosevelt McGowan, not as

Elizabeth. (Pet. Post-Trial Ex. No. 4 at 55) In the other

documents, which were exhibits in the instant case, she is

referred to as Evelyn Mayberry, the common-law wife of

Roosevelt McGowan (R. C123-4), or as McGowan’s wife

Evelyn (Pet. Post-Trial Ex. No. 7 at 4), not Elizabeth. Both

names appearing on the list of witnesses contained the same

address, 716 Lawndale.

The petitioner always possessed the federal trial transcript,

knew that Mrs. McGowan was in fact Evelyn Mayberry, and

could see, by examing the two transcripts that her testimony in

the instant case was very similar to her testimony at the federal

trial.

The Illinois Supreme Court found on the aforementioned

facts that no suppression of evidence occurred in the instant

case, hence, the dictates of Brady v. Maryland, supra, 373 US.

83, were not violated. The Illinois Supreme Court also held

that in no way was petitioner deprived of any evidence material

to his guilt under United States v. Agurs, 427 U.S. 97, 49

L.Ed.2d 343, 96 S.Ct. 239 (1976). People v. Berland, supra, 74

Il.2d at 311-312. The respondent maintains that the opinion of

the Illinois Supreme Court is unequivocally correct.

The petitioner also contends that the dual listing of witness

Mayberry was done intentionally by the prosecution in an

attempt to mislead him. There is not one iota of evidence in

this record to support this contention. In fact the record

supports only the opposite conclusion. When new, substitute

defense counsel appeared and raised this contention during ihe

arguments on the post-trial motion the prosecutor stated, “I ask

the Court and say to the Court, that it was not done in any

intentional fashion.” (R. 845)

24

The petitioner’s final accusation is that the State knowingly

used perjured testimony to obtain his conviction. The respond-

ent maintains and the Illinois Supreme Court held, that the

record does not lend any credence at all to the petitioner’s

assertion. Berland, supra, 74 Ill.2d at 316. The petitioner

raised this argument in the post-trial motions, on the direct

appeal, in a collateral attack on the conviction (Ill. Rev. Stat.

1975, 110 § 72: (coram nobis) and in the subsequent appeal of

the denial of the collateral attack. His arguments were

repeatedly rejected by the trial court and then totally rejected

again by the Illinois Supreme Court.

While Evelyn Mayberry testified at the federal insurance

trial that she was unable to see the faces of the two men who

exited the station wagon on the morning of the fire, she did

testify that she had previously seen both of them and the

vehicle. She positively identified the petitioner as the man she

saw driving the station wagon on several occasions prior to the

fire, specifically on the Monday before it occurred. (Pet. Post-

Trial Ex. No. 4, at 58-59) She identified Defendant’s Exhibit

No. 12 at the federal trial, a picture of Wolf, as depicting the

driver of the station wagon ( Pet. Post-Trial Ex. 4 at 60), which

pulled up in front of 715 South Lawndale.

At the trial of the instant case she was never asked if she

had been able to see the faces of the two men. She did

positively identify the petitioner as the driver of the car, who

then exited the car ana walked into the building with a gasoline

can on the morning of the fire. It is clear that a person can be

identified by his general appearance at the time of the crime.

People v. Oswald, 26 Ilil.2d 567, 187 N.E. 2d 685 (1963).

Additionally, when Mayberry’s testimony in the civil trial is

examined it is substantially the same testimony she gave in the

trial of the instant case. It is axiomatic that the credibility of

witnesses is a matter for the trier of fact to determine. The law

is also clear that “mere conflicts in the testimony of a witness

25

with prior statements made by him “does not establish that the

witness has given perjured testimony.” People v. Henderson, 36

Ill. App.3d 355, 344 N.E.2d 239 (Ist Dist. 1976); accord,

People v. Lagios, 39 Ill.2d 298, 235 N.E.2d 587 (1968).

Clearly, any possible inconsistencies in the testimony were

minor and it is clear that there is not one iota of perjury on this

record.

A fact that the petitioner conveniently ignores is that

Evelyn Mayberry was not the only eyewitness to identify the

petitioner at the scene of the fire. Albert Kyles was also an

eyewitness and he knew the petitioner having seen him on

previous occasions. On the day of the fire, when petitioner was

observed by Kyles, Kyles already knew who he was. Kyles’

previous acquaintance with petitioner made his identification

strong, positive and credible. Kyles clearly corroborated

Mayberry’s identification.

The prosecution obviously had no duty to point out that

Mayberry’s testimony was false where in fact her testimony was

positive and credible. See Napue v. Illinois, 360 U.S. 264, 79

S.Ct. 1173, 3 L.Ed.2d 1217 (1959). Clearly, there was no

perjured testimony used to obtain the petitioner’s conviction.

The decision of this Court in United States v. Agurs, supra,

427 U.S. 97, 96 S.Ct. 2392, 49 L.Ed.2d 343 (1976), is of no aid

to the petitioner. As this Court said in Agurs, “The prosecutor

will not have violated his constitutional duty of disclosure

unless his omission is of sufficient significance to result in the

denial of the defendant's right to a fair trial.” 96 S.Ct., at 2399.

The Agurs Court also held that “the mere possibility that an

item of undisclosed information might have helped the defense,

or might have affected the outcome of the trial, does not

establish ‘materiality’ in the constitutional sense.” Id. at 2400.

26

There was no information in the instant case that was not

disclosed to the petitioner, a fortiori there was nothing un-

known which was favorable to the defendant ( Brady, supra) or

which would have affected the outcome of the trial.

For all of the above stated reasons, the respondent urges

that because the Illinois Supreme Court properly decided this

issue On the merits, because the decision of the Illinois Supreme

Court is in accord with the decisions of this Court, and because

the petitioner has failed to show any need for this Court to

grant his petition for a Writ of Certiorari, such petition should

be denied.

27

CONCLUSION

The People of the State of Illinois respectfully request that

the petition for a writ of certiorari be denied. ‘

Respectfully submitted,

WILLIAM J. SCOTT,

Attorney General of the State of Illinois,

DONALD B. MACKAY,

MELBOURNE A. NOEL, JR.

Assistant Attorneys General

188 West Randolph Street, Suite 2200

Chicago, Illinois 60601

(312) 793-2570,

Attorneys for Respondent.

BERNARD CAREY,

State’s Attorney of Cook County, Illinois,

500 Richard J. Daley Center,

Chicago, Illinois 60602

(312) 443-5496

Marcia B. Orr,

JOAN S. CHERRY,

Assistant State’s Attorneys,

Of Counsel.