Petition — Perry v. Illinois

gy !

Ss

“a

In Tir

Suyrrue Court of the Wuited States

OCTOBER TERM, 1980

DENNIS PERRY JR.,

PETITIONER,

Vs.

PEOPLE OF THE STATE

OF ILLINOIS,

RESPONDENT.

ON

PETITION FOR A WRIT OF CERTIORARI TO

THE SUPREME COURT OF ILLINOIS.

PETITION FOR WRIT OF CERTIORARI

William J. Stevens

Counsel for the Petitioner

Foss, Schuman & Drake

1l South La Salle Street

6th Floor

Chicago, Illinois 60603

Telephone: (312) 782-2610

-\j-

QUESTIONS PRESENTED

(1) Did the warrantless search of the

automobile which Petitioner drove on the

afternoon of his arrest violate his 4th

Amendment rights:

(A) When the police had 7-1/2

hours to obtain a search

warrant for the car be-

tween the time a descrip-

tion of the car was given

to them and the time the

car was stopped.

(B) In the absence of reason-

able grounds to believe

that a car contains sto-

len goods, contraband or

evidence may that car be

searched.

(C) When the police see stu-

dents loading things in-

to a car beside a college

(E)

atu

dormatory and none of the

things loaded are iden-

tified as proceeds from a

burglary which occurred

15 hours earlier does the

fact that the car looked

like the car seen at the

burglary give the officers

reasonable grounds to be-

lieve that the person driv-

ing the car away from the

dormatory was a burglar.

When the warrantless search

of an automobile is sought

to be justified as a search

incident to an arrest but

the search occurs after the

Petitioner is locked in the

police station.

When the warrantless search

-3-

of an automobile is sought

to be justified as an "in-

ventory" search but the ap-

parent purpose of the search

was to look for evidence in

a burglary investigation and

the state failed to prove

that the search was a part

of any routine forfeiture

Or property protecting pro-

cedure.

(2) When the Petitioner, a student from

Illinois State University, challenged the

Array from which his jury was selected on

the grounds that the jury pool contained

no students (although students make up a

third of the population of Bloomington-

Normal Illinois [the city where trial

was held])and when he offered to prove

that students were significantly under-

-4-

represented in the Array, was the fact

that the Motion and Offer of Proof were

Oral rather than written, an adequate

state ground for denying Petitioner a

hearing on his claimed violation of

the Sixth and 14th Amendment rights to

a jury chosen from a fair cross section

of the community.

a Se

THE PARTIES

The Petitioner Dennis Perry was Petit-

ioner in the Supreme Court of Illinois,

Appellant in the Illinois Appellant Court,

Fourth District and Defendant in the Cir-

cuit Court of McLean County, Illinois.

The Respondent, People of the State of

Illinois, was Respondent in the Supreme

Court of Illinois, Appellee in the I1lli-

nois Appellant Court, Fourth District,

and Plaintiff in the Circuit Court of

McLean County. There were no other

parties in the proceedings in any of

the lower courts.

=-6<

TABLE OF CONTENTS

Page

Questions Presented 1

Table of Contents 6

Table of Authorities 8

Decisions Below 10

Jurisdictional Statement 10

Constitutional Provisions and

Statute Involved ll

4th Amendment to U.S.

Constitution ll

6th Amendment to U.S.

Constitution 12

14th Amendment to U.S.

Constitution 13

Lids Rov. Stat. ch 38

§114-3(b) 14

Saas BV. Stat. ca 76 § i 16

Statement of the Case 18

Argument 28

Warrant required for car 28

Exigent circumstances not

present 30

No probable cause for

contents 32

TABLE OF CONTENTS

Cont.

D;

Page

No probable cause for

arrest 33

Search not incident to

arrest 36

Investigation not

inventory

:

J

* e ya e9 ~_ -

Jury Array Challenge 4

aa

TABLE OF AUTHORITIES

CASES

PG.

ANDERSON v. CASSCLES 531 F2d 682

(2nd Cir. 1976)

ARKANSAS v. SANDERS 442 U.S.

rite

BECK v. OHIO 379 U.S. 89

CARROL v. UNITED STATES

267 U.S.132

CHAMBERS v. MARONEY 399 U.S.

42

COOLIDGE v. NEW HAMPSHIRE

403 U.S. 443

DELAWARE v. PROUSE 440 U.S.

648

DUREN v. MISSOURI 439 U.S.

357 (1979)

DYKE v. TAYLOR IMPLEMENT

MFG. CO. 319 U.S. 216

HENRY v. MISSISSIPPI 379 U.S.

443

MINCEY v. ARIZONA 437 U.S.

385

44

36,37,38

33,34

29

31,37,38

28,29,31

27

24,42,43

31

47

27

PAYTON v. NEW YORK-U.S.-63 Led

2d 639

an

=9-"

TABLE OF AUTHORITIES

CONT'D

PG

PEOPLE v. ATTICA BROTHERS 79 Misc.

2d 492, 359 NYS 2a 699 45

PEOPLE v. MARR 67 Misc. 2d 113,

324 NYS 2a 608 45

PEOPLE v. PERRY 81 Ill. App. 3rd

422, 37 Ill. Dec. 170, 401

NE2d 1263 (4th Dist. 1980) 9,33

PRESTON v. UNITED STATES 376

U.S. 364 35,38

SOUTH DAKOTA v. OPPERMAN

428 U.S. 364 38,39,40

STONE v. POWELL 428 U.S. 465 27

TAYLOR v. LOUISIANA 419 U.S.

522 (1975) 24,42

UNITED STATES v. CHADWICK

a oe a | 35

UNITED STATES v. DELLINGER

472 F2d 340 (7th cir. 1972) 45

UNITED STATES v. DE RE 332 U.S.

581 32

YBARRA v. ILLINOIS-U.S.-62 Led

2d 238 32

-10-

DECISIONS BELOW

The Illinois Supreme Court's denial

of Leave to Appeal on September 29, 1980

is unreported. (A copy of the denial is

found in the Appendix on Page Al).

The decision of the Appellate Court

of Illinois is reported People v. Perry

81 Ill. App. 3rd 422, 37 Ill. Dec. 170,

401 NE2d 1263 (4 th Dist. 1980).°

JURISDICTIONAL STATEMENT

The Judgment of the Supreme Court of

Illinois denying leave to appeal was en-

tered September 29, 1980. The time of

day when it was entered on the 29th can-

not be ascertained from the record. No

rehearing of the denial of leave to ap-

peal was sought and this Petition for

Certiorari will be timely if filed by

mail on or before November 28, 1980

-ll-

without an extension. The Petitioner in-

vokes this court's jurisdiction under 28

USC §1257(3) and petitions for a Writ of

Certiorari to the Supreme Court of Illi-

nois.

CONSTITUTIONAL PROVISIONS AND

STATUTES INVOLVED

4th Amendment to the Constitution of

the United States

The right of the people to be secure

in their persons, houses, papers and ef-

fects against unreasonable searches and

seizures, shall not be violated, and no

warrants shall issue, but upon probable

Cause, Supported by oath or affirmation

and particularly describes the place to

be searched, and the persons or things

to be seized.

-12<

6th Amendment to the

Constitution of the United States

In all criminal prosecutions, the

Accused shall enjoy the right to a

speedy and public trial, by an in-

partial jury of the State and dis-

trict wherein the crime shall have

been committed, which district shall

have been previously ascertained by

law, and to be informed of the na-

ture and cause of the accusation to

be confronted with the witnesses

against him; to have compulsory

process for obtaining witnesses

in his favor, and to have the assis-

tance of counsel for his defense.

-13-

§1,14th Amendment to the

Constitution of the United States

All persons born or naturalized in the

United States, and subject to the juris-

diction thereof, are citizens of the Unit-

ed States and of the State wherein they

reside. No state shall make or enforce

any law which shall abridge the priv-

ileges or immunities of citizens of

the United States; nor shall any state

deprive any person of life, liberty or

property, without due process of law;

nor deny to any person within its juris-

diction the equal protection of the laws.

-]|4-

Ill. Rev. Stat. ch38 §114-3(b):

Motion to Discharge Jury Panel.

(a) Any objection to the

manner in which a jury

panel has been selected

or drawn shall be raised

by a motion to discharge

the jury panel prior to

the voir dire examination.

For good cause shown the

court may entertain the

motion after the voir

dire has begun but such

motion shall not be

heard after a jury has

been sworn to hear the

cause.

(6b) The motion shall be in

writing and shall state

facts which show that

-1|5-

the jury panel was improp-

erly selected or drawn.

(c) If the motion states facts

which show that the jury

panel has been iluproperly

selected or drawn it shall

be the duty of the court

to conduct a hearing. The

burden of proving that the

jury panel was improperly

selected or drawn shall be

upon the movant.

(d) If the court finds that the

jury panel was improperly

selected or drawn the court

shall order the jury panel

discharged and the selec-

tion or drawing of a new

panel in the manner prov-

ided by law.

-16<

Ill. Rev. Stat. ch78 §1l

The county board of each county, ex-

cept those counties which have jury com-

missioners as provided in "An Act in

relation to jury commissioners and auth-

orizing judges to appoint such jury com-

missioners and to make rules concerning

their powers and duties", approved June

15,1887, as amended, shall at or before

the time of its meeting, in September,

in each year, or at any time thereafter,

when necessary for the purpose of this

Act, make a list of sufficient number,

not less than one-tenth of the legal

voters of each town or precinct in the

county, giving the place of residence

of each name on the list, to be Known

as a jury list. The list shall be made

by choosing every tenth name, or other

whole number rate necessary to obtain

o17=

the number required, from the latest

voter registration lists of all the

towns or precincts in the county. The

lists of the several towns or precincts

shall be arranged alphabetically or

numerically, as the case may be, and

the count of names shall run continu-

Ously rather than starting over with

each town or precinct.

-18=

STATEMENT OF THE CASE

At a hearing on Petitioner's pre-

trial written Motion to Surpress, phy-

Sical evidence the state conceeded that

the Petitioner was arrested without a

search or arrest warrant (R.P. 6-7).

The arresting officers did not see the

Petitioner violate any law (R.P. 29,48).

On December 18, 1978 at about 9:00 a.m.

Martin Beltz reported to police that at

1:00 a.m. that morning he had seen a

black-over~yellow Buick partially block-

ing his driveway. (R.P. 11). A bur-

glary and home invasion had occurred

in the house next to Beltz at about

1:00 a.m. The description of the car

given by Beltz was posted on the police

bulletin board (R.P. 64) and broad-

casted over police radio (R.P. 13) but

no search warrant was obtained (R.P. 6-7).

-19-

About 4:25 p.m. on the 18th, Officer

Silvey found a black-over-yellow Buick

corresponding to Beltz's description

parked by an Illinois State University

dormatory. (R.P.22). Silvey reported his

discovery on the police radio (R.P. 22).

He watched the car for about 20 minutes

while one black man and three black men

Or women loaded the car (R.P.23). Al-

though Silvey saw the individuals bring

things to the car on wheeled carts -

carts used by students to take things

to and from dormatory rooms (R.P.24) -

he could not tell what items were loaded

on the cart (R.P.24). Silvey did not

claim to have seen any stolen goods

loaded into the car (R.P. 23-25).

In response to Silvey's radio report,

Detective Keim and Lieutenant Kemp drove

to the dormatory and watched the parked

-20-

car for 15 minutes (R.P.42). Keim and

Kemp watched two or three individuals

load objects into the trunk and front

seat of the car, but could not see ex-

actly what they were loading (R.P.42).

Eventually the car drove away from

the dormatory (R.P.42). The police

then stopped the car and arrested the

two occupants (R.P.43). The Petitioner

and Maxine Moise were patted down (R.P.

43). Petitioner was arrested about 14

hours after the crime was reported

(R.P.54). The police checked the in-

terior of the car and noticed stereo

equipment and speakers in the car,

and a lot of things including a re-

frigerator and book stand in the open

trunk (R.P.43). The police did not

then notice it was a Pioneer stereo

(R.P.49) and could not tell the serial

~~ be

number or model (R.P.49). The Petitioner

told the police that he had borrowed the

car, but that they could move it (R.P.

43).

The Petitioner and Moise were placed

in Detective Keim's car, then Officer

Kearney drove the Buick to the police

Station (R.P.58)

After the car was behind the police

station, Lieutenant Kemp, Detective

Keim and Officer Hood recovered an am-

plifier from the front seat of the ve-

hicle (R.P.58). During the search of

the car at the police station, the of-

ficers determined the model number of

the stereo (R.P.50). Kemp found a Pi-

Oneer amplifier on the front seat of

the vehicle next to the driver's seat

(R.P.44). Kemp read the serial and

model number to Detective Keim (R.P.44).

o2%e

Keim saw that the serial number and model

number matched the numbers of the stolen

amplifier shown on the police report

(R.P. 44-45).

No warrant was obtained to search the

car after the Petitioner was arrested and

before the car was searched in the police

parking lot.

When confronted with the information

that a stolen stereo had been found in

the car, the Petitioner executed a con-

sent to search his dormatory room. How-

ever, no consent was obtained for the

search of the car.

The federal constitution challenge to

the search was made in the written pre-

trial Motion to Suppress, at the hear-

ing on the Motion to Suppress (R.P.

6-88).,when the items seized were of-

fered in evidence (R.P. 371).,by a

=2 30

written post trial Motion, on appeal in

the Appellate Court and by petition for

leave to appeal to the Supreme Court of

Illinois.

The trial court denied the Motion to

Suppress (R.P. 87-88), admitted the

items over objection (R.P. 371), and

denied the Motion for New Trial (Re-

port of Sentencing Hearing 20-21). The

Appellate Court rejected Petitioner's

Fourth Amendment attack on the seizure

401 NE2nd at 1269. The Illinois Su-

preme Court denied leave to appeal.

Immediately before the selection

of the jury, the Petitioner challenged

the array of the pool from which the

jury was selected (R.P. 99-100). The

Petitioner asserted that from the face

of the jury list it appeared that Il-

linois State University students had

=24-

been excluded from the array (R.P.99).

The Petitioner offered to prove the ex-

Clusion by testimony (R.P.100). The

trial Judge denied the motion on the

grounds that it was oral rather than

written (R.P.100). The Defendant filed

a written and verified Post Trial Mo-

tion alleging in part:

"The purposeful refusal of

the Clerk of the Court not to

use student registration lists

from Illinois State University

in creating the pool from which

venires are called, the failure

of the array to include any

Students, the failure to in-

Clude any students among pro-

Spective jurors or jurors chosen

the overruling of Defendant's

challenge to the array without

o2S—=

hearing evidence, deprived the

Defendant of jury pools which

reasonably represented the

community, and deprived the

Defendant of his rights under

the Sixth and Fourteenth Amend-

ments to the United States Con-

Stitution to a petit jury sel-

ected from a fair cross-sec-

tion of the community. DUREN

v. MISSOURI - U.S.-58 Led 2d

979, 99 S.Ct-(January 9, 1979).

TAYLOR v. LOUISIANA 419 U.S.

522 (1975). Bloomington-Normal

has a population of about

71,000 people. Illinois State

University at Normal has an

enrollment between 17,000 and

20,000 students. The student

population makes up a sign-

=@26-

ificant and distinct group within

the population of McLean County.

The students population is young-

er and contains more blacks than

the population of the County as

a whole. On the face of the jury

lists, it was apparent that stu-

dents from Illinois State Univ-

ersity had not been included in

the group of prospective jurors.

The Court erred in denying De-

fendant's challenge to the array

(R.P. 99,100). The prospective

jurors examined contained no

students (R.P. 102, 195). Chap-

ter 78 §1, Ill. Rev. Stat. (1977)

is unconstitutional as applied

to McLean County where the in-

tentional use of voter lists pur-

posefully excludes the overwhelmin

oy

—

-

a2 T=

majority of the students at Il-

linois State University. The Court

should require a new trial by a

jury selected from potential jur-

ors which include a fair cross-

section of the community (in-

cluding Illinois State Univer-

sity students), and should order

the hearing of evidence in support

of Defendant's challenge to array."

The Post Trial Motion was denied. (Re-

port on Sentencing Hearing At p.20-21).

The Appellate Court rejected the Petit-

ioner's 6th and 14th Amendment challenge

to the jury array on the grounds that it

was oral not written 401 NE2d at 1269.

The Supreme Court of Illinois denied

leave to appeal.

-2§-

ARGUMENT

=

The Petitioner has no place else to

turn for protection of his 4th Amend-

ment rights. Ever since STONE v.

POWELL 428 U.S. 465 Certiorari, not

habeas corpus, is his last chance to

vindicate a 4th Amendment claim. Con-

curring opinion of Mr. Justice Marshall

and Breman MINCEY v. ARIZONA 437 US 385

at 402.

Last term this court reaffirmed the

automobile operator's justified expec-

tation of privacy and held that people

are not shorn 4th Amendment protection

when they step into their automobiles

DELAWARE v. PROUSE 440 U.S. 648, 662-

663.

=29-

In COOLIDGE v. NEW HAMPSHIRE 403

U.S. 443 at 454-455 this court held that

the search of an automobile requires a

warrant unless the state establishes

that one of the well defined jealously

and carefully drawn exceptions to the

warrant requirement applies. The

following sections of argument dis-

cuss those exceptions.

One exception frequently applied to

automobiles is the CARROL v. UNITED

STATES 267 U.S.-132 exigent circum-

stances exception for fast moving

automobiles. The notion is that the

Car will drive away before a judicial

officer can be found to issue a war-

rant. In COOLIDGE 403 at 463-462

the court found that the car was not

in danger of being moved and declined

to apply the exigent circumstances ex-

ception. The more time that elapses

between the time the police learn

facts which prompt the seizure and

the seizure itself, the less force

the exigent circumstances argument

keeps. This court has not but ought

to decide how long may the police

rely on exigent circumstances be-

-3]-

fore they must obtain a warrant? In the

present case at 9:00 a.m., the neighbor

next to the home burgle zed provided

the police with the des .ription of a

black-over-yellow Buick which he had

seen partially blocking his driveway at

1:00 a.m. The home invasion had occurred

at 1:00 a.m. Once the police had the

description of the car from Beltz, they

broadcasted it on the police radio and

posted it on the police bulletin board,

but never sought and never obtained a

search warrant for the ear. A Gar

which looked like the car seen by Beltz

was observed at 3:00 p.m. and stopped

after 4:00 p.m. During the more than

seven hours from the time of Beltz's

call until the stop, the police had

ample time to obtain a warrant. The

exigent circumstance doctrine may not

=32@

justify such a failure to get a warrant.

COOLIDGE v. NEW HAMPSHIRE 403 US 443,

458 - 462, see PAYTON v. NEW YORK -

U.S. - 63 Led 2d 639 at 648-649.

(B)

Even where exigent circumstances exist,

the police must have probable cause to be-

lieve that the contents of the automobile

offend against the law. CHAMBERS v.

MARONEY 399 US 42 at 48-49, DYKE v.

TAYLOR IMPLEMENT MFG.CO. 319 U.S. 216 at

221-lll. In the present case there was

no reasonable grounds to believe that the

car contained proceeds from the burglary

at the time it was stopped. The car was

stopped more than 14 hours after the

crime. On the afternoon when it was stop-

ped, the police watched students put things

into the car, but the police did not rec-

Ognize any of the items being loaded as

=33=

proceeds from the burglary. In UNITED

STATES v. DE RE 332 U.S. 581 the court

observed "we are not convinced that a

person by mere presence in a suspected

car looses immunities from search of

his person ..«+«-« "By analogy when the

car is suspect but there is no reason

to suspect its contents, a search

should not proceed without a warrant.

c.f. YBARRA v. ILLINOIS - U.S. -,

62 Led 2d 238 at 245-246. This

court has not squarely confronted

the situation where the car is sus-

pect, but the officers have no rea-

son to believe that any of its con-

tents are stolen. This case pres-

ents that opportunity.

(C)

The Illinois Appellate Court at-

tempted to finesse the other search

«34-

and seizure issues presented by the

record holding that the Petitioner's

arrest was supported by probable cause.

A warrantless arrest by police is a vio-

lation of the 4th Amendment unless they

have reasonably trustworthy information

to warrant a prudent man in believing

that the Petitioner had committed or

was committing an offense BECK v.

OHIO 379 U.S.-89 at 91. The arrest-

ing officers admitted that they did

not see the Petitioner violate any

law. The sole facts relied on by the

Appellate Court to uphold probable

cause where: "Fifteen hours later,

a car fitting the description was

seen parked on the south side of an

ISU dormatory. An officer observed

three young men loading items into

the automobile." PEOPLE v. PERRY

-35-

81 Ill App 3d 422, 37 Ill. Dec 170,

401 NE2d 1263 at 1269. When the police

see students loading things into a car

beside a college dormatory, and none

f the things loaded are identified

as proceeds from a burglary which oc-

curred 15 hours earlier, the fact that

the car looked like the car seen at the

burglary does not give the police rea-

sonable grounds to believe that the

person driving the car away from the

dormatory was a burglar. The state

failed to prove that the arresting

officers had sufficient knowledge

of facts concerning the Petitioner

to support his arrest. If the arrest

was without probable cause, then a

fruits of search incident to that

arrest or occurring because of the

arrest must be suppressed. BECK

-36-

v. OHIO 3279 U.S. 89. While the lower

court decision pays lip service to the

standards adopted by this court, the

substance of the decision is contrary

to the probable cause requirement and

warrants review by this court.

(D)

Even if we assume that the Appellate

Court's holding that probable cause ex-

isted was correct, the search complained

of was not "incident" to the arrest. As

this court said in PRESTON v. UNITED

STATES 376 U.S. 364, 367, “Once an ac-

cused is under arrest and in custody,

then a search made at another place,

without a warrant is simply not incident

to the arrest: This doctrine was re-

affirmed in UNITED STATES v. CHADWICK

433 U.S. 1 where the court held that the

later search of a footlocker taken from

a3 Fa

the trunk of a car but not opened until

the arrestees were in jail could not be

justified as incident to the arrest.

The justification for a warrantless

search of the area in the immediate con-

trol of the arrestee is to see that

there are no weapons or destructable

evidence near the person just arrested.

433 U.S. at 14-15. Those justifications

disappear when the police have moved the

automobile to a secure location in the

police parking lot, and when the Petit-

ioner is locked-up with no access to

the vehicle. Just as in ARKANSAS v.

SANDERS 442 U.S. 753 once the luggage

to be searched is securely in police

control, a search warrant should be

required once the car is secure. No

excuse for omitting to obtain a warrant

-38-

exists 442 U.S. at 763, 765. Some mem-

bers of the court have suggested that

the warrant needed before luggage from

an automobile is searched does not in-

volve the "automobile" exceptions to the

requirement for a warrant. See concurr-

ing opinion of Chief Justice Burger in

ARKANSAS v. SANDERS 442 U.S. at 766,768.

A careful analysis of CHAMBERS v. MARONY

399 U.S. 42 does not create an "auto-

mobile" exception to searches conducted

after and no longer incident to a law-

ful arrest: "the search of an auto on

probable cause proceeds on a theory

wholly different from that justifying

the search incident to an arrest." 399

U.S. at 49. Since there was no probable

cause to believe that the auto contained

stolen goods, this case gives the court

a chance to define some of the

-39-

fuzzy borders between CHAMBERS v.

MARONEY 399 U.S. 42 and ARKANSAS v.

SANDERS 442 U.S. 753 while reaffirming

the search incident to arrest doctrine

PRESTON v. UNITED STATES 376 U.S. 364

(E)

The final exception to the require-

ment for a warrant hinted at in the

trial court by the State was that the

search -~f the automobile in the police

parking lot by the officers investigat-

ing the burglary was justified as an

"inventory." (R.P. 85) This court's

decision in SOUTH DAKOTA v. OPPERMAN

428 U.S. 364 should not be extended to

Justify

the present search. That case

upheld a routine inventory of the con-

tents of a car impounded for parking

violations. Dicta in the case also

Suggests that routine inventories of

-40-

cars seized as part of forfeiture pro-

ceedings may be lawfully undertaken

to protect the car while in police

Custvdy. Mr. Justice Powell's con-

curring opinion in SOUTH DAKOTA v.

OPPERMAN clarifies the distinction

between searches intended to be part

of criminal investigations and routine

applications of the policy that all

vehicles impounded or seized in for-

feiture proceedings be inventoried.

Warrants in criminal investigations

place a neutral magistrate between

the citizens expectation of privacy

and the police desire to find evid-

ence; inventory searches occur when

the police are not looking for evid-

ence but are only following a care-

taking routine and are not exercising

any judgment to justify the search

y

+

-4)]-

428 U.S. at 383. In the present case

the search of the car in the police

parking lot was a part of the ongoing

Criminal investigation. Detective

Keim, in charge of this burglary in-

vestigation, stood by the car with the

incident report from the home invasion

in hand, while Lt. Kemp read the ser-

ial numbers of stereo equipment to the

detective so that he could compare the

numbers on the equipment in the car

with the serial numbers of the stereo

equipment taken from the house. Calling

the search an "inventory" cannot hide

the fact that its purpose was a search

for evidence of a crime. The state

failed to prove that there was any-

thing routine about this search. The

court should grant Certiorari to clar-

ify the limits of SOUTH DAKOTA v.

OPPERMAN 438 U.S. 364.

-43-

aa

White against Black - ugly racial hos-

tility permeated the trial. White victims

testified against unidentified Blacks in-

vading their homes at night. An all White

jury convicted the Black defendant and the

White Judge sentenced him to 20 years.

Perhaps a jury with some students and

some Blacks would have responded to the

racial overtones of the trial with more

sophistication and balance.

In TAYLOR v. LOUISIANA 419 U.S. 522

(1975) and DUREN v. MISSOURI 439 U.S.

357 (1979) this court explained that

the 6th and 14th Amendments require

that juries must be drawn from a source

fairly representative of the community:

"jury wheels pools of names,

panels or venires which jur-

les are drawn must not sys-

-44-

tematically exclude dis-

tinctive groups in the

community and thereby

fail to be reasonably

representative thereof."

419 U.S. at 538 quoted

at 439 U.S. at 863-364.

DUREN v. MISSOURI explained:

"In order to establish a

prima facie violation of

the fair cross-section re-

quirement, the defendant

must show (1) that the

group alleged to be ex-

cluded is a 'distinctive'

group in the community;

(2) that the representation

of this group in venires

from which juries are sel-

ected is not fair and rea-

-45-

sonable in relation to

the number of such per-

sons in the community

and (3) that this under-

representation is due to

systematic exclusion of

the group in the jury-

selection process.

This court has not decided but ought

to decide whether students are a dis-

tinctive group in the community for

Sixth Amendment purposes. In ANDERSON

v. CASSCLES $31 F2da 682. (2nd Cir. 1976)

the U.S. Court of Appeals relied on

two New York State Court decisions and

held that "the exclusion of students

over the age of twenty one, .. .,

would pose a substantial constitu-

tional question which is not fore-

closed by previous decisions of

-46-

this court." 531 F2d at 686. The Court

of Appeals for the Seventh Circuit in

UNITED STATES v. DELLINGER 472 F2d 340

(7th cir. 1972) observed: "We view the

underrepresentation on voter lists of

younger residents, and thus of any rel-

evant attitudes which may be more pre-

valent among younger than older res-

idents as a reason why it is desir-

able to seek feasible ways to supple-

ment the voter list (for Jury Selec-

tion) « <2. > #72 F2G at 366.;: Courts

in New York have held that students

are a distinctive group in the com-

munity for Sixth Amendment purposes

PEOPLE v. MARR 67 Misc. 2d 113,

324 NYS 2d 608 (1971); PEOPLE v.

ATTICA BROTHERS 79 Misc. 2d 492,

359 NYS 2d 699 (1974).

o47=

At trial the Petitioner's counsel

challenged the array on the grounds

that the entire jury list on its face

showed a complete absence of any col-

lege students (R.P. 99-100). In the

college town of Bloomington-Normal,

the home of a major State University

(ISU), the complete absence of stud-

ents shows underrepresentation. The

verified post-trial motion showed that

B’ oomington-Normal had a population of

71,000 and that Illinois State Univ-

ersity had an enrollment of 17,000

to 20,000 students: a group compris-

ing 20% of the town population was

not represented.

The use of voter lists in sel-

ecting jurors is required by Ill. Rev.

St. at ch78§l. When the board sel-

ecting jury lists knows of student

=49-

enrollment lists but chooses to use the

voter lists with the underrepresentation

that the voter list contains, the excl-

usion of students becomes intentional and

the Statute is unconstitutional as applied

to rural counties with large college pop-

ulations.

The exclusion of students becomes even

more important when the racial composit-

ion of the student body differs from the

rest of the county.

The Appellate Court held that it was

under no duty to consider the violation

of defendant's 6th and 14th Amendment

Rights because the motion and offer of

proof were oral rather. than written.

In HENRY v. MISSISSIPPI 379 U.S. 443

13 L.Ed 2d 408, 855 S.Ct.564 (1965)

this court held that a litigant's pro-

cedural defaults in State proceedings

o49-

do not preclude vindication of his fed-

eral rights unless the State's insistence

in compliance with its procedural rules

serves a legitimate State interest. When

the substance of the defendant's challenge

was presented to the trial court orally as

soon as defense counsel saw the jury list

showing the absence of students from the

pool from which the jury was to be drawn,

there was NO legitimate State interest to

be served by making the defendant write his

motion or present a written affidavit. The

port=

;

~

requirement for a sworn statement sup

ing the motion would have been satisfied

in substance by permitting defense coun-

sel to call the Clerk of the Court as a

witness. The substance of defendant's

position was presented in a timely fashion.

Requiring a written motion exhalts use-

less form over vital constitutional rights

-50-

to a jury trial.

For the foregoing reasons, the Petit-

ioner asks the Court to grant Certiorari

and review the judgment of the Supreme

Court of Illinois.

Respectfully submitted,

~_

ae ais ‘ my

Me eS ee

all

P -_

William J. Stevens

Counsel for Petitioner

William J. Stevens

FOSS, SCHUMAN & DRAKE

ll South La Salle Street

Chicago, Illinois 60603

Telephone: (312) 782-2610

A-1

APPENDIX I

COPY OF THE ORDER OF THE

SUPREME COURT OF ILLINOIS

(Letterhead of)

ILLINOIS SUPREME COURT

Clell L. Woods, Clerk

SUPREME COURT BUILDING

SPRINGFIELD, ILL. 62706

(217) 782-2035

September 29, 1980

No. 53327 - People State of Illinois,

respondent, vs. Dennis Perry,

Jr., petitioner. Leave to

appeal, Appellate Court,

Pourth. District.

The Supreme Court today denied the

petition for leave to appeal in the above

entitled cause.

Very truly yours,

/s/ Clell L. Woods

Clerk of the Supreme Court

A-2

APPENDIX IIA - COPY OF THE OPINION OF

ILLINOIS APPELLATE COURT

401 N.E. 2d 1263

Sl Ill. App. 34 422

Si Ghee OSG. L790

THE PEOPLE OF THE STATE OF ILLINOIS

Plaintiff-Appellee,

Vv.

DENNIS PERRY,JR., Defendant-Appellate

No. 15722

Appellate Court cf Illinois,

Fourth District.

Feb. 29, 1980.

MILLS, Presiding Justice:

CHARGES: Armed robbery, home invasion,

burglary, and felony theft.

JURY: Guilty

JUDGE: 20 years, concurrent.

tHL95 COURT: Attirm.

A jury trial resulted in defendant's

convictions for three counts of armed rob-

bery, one count each of home invasion, bur-

glary, and felony theft. He was sentenced

to 20 years for each armed robbery charge,

A-3

20 years for home invasion, 7 years for

burglary, and 5 years for the theft -

all to run concurrently. He raises

eight issues on appeal.

But first, a brief review of the

facts.

The incident in question occurred

in the early morning hours of Decem-

ber 18, 1978, at a residence at 216

South Coolidge in Normal, Illinois.

Three of the five occupants were in

the home asleep at 1:20 a.m. when

the doorbell rang. One of the resi-

dents, Ronald Sobkoviak, answered the

call and encountered a thin black man,

who asked for "Dan."

Daniel Flick was summoned, at

which time the black man and several

others forcibly entered the dwelling.

In the next 15 to 20 minutes, the res-

A-4

idents were threatened, beaten, cut,

held at gunpoint, and robbed. Due to

the lighting conditions, the residents

were unable to identify the perpet-

rators but they were able to tell that

One wore an Army fatigue jacket and that

three different types of shoes were worn:

blue tennis shoes with white stripes,

hiking boots, and black dress shoes. A

number of items which were taken by the

intruders were identified at trial, in-

cluding a Pioneer stereo amplifier and

an Illinois State University class ring

bearing the inscription "Greg Burmeister."

Martin Belz, the next-door neighbor

of the victims, upon hearing of the

event, informed police that he had seen

a black over light yellow Buick equipped

with amber colored lenses over the brights,

and an object hanging from the rearview

A-5

mirror. The automobile was outside his

residence at the time of the offense.

This vehicle was spotted by an Illi-

nois State University police officer at

4:24 p.m. outside the Waterson Towers

dormitory. The officer observed four

men loading items into the auto. As

the auto left, it was stopped by ISU

and Normal police officers. The de-

fendant was the driver of the auto

and the Pioneer stereo amplifier was

seen on the front seat. After de-

fendant consented, the officers

searched his dorm room and found

the class ring. They also recov-

ered an Army fatigue jacket and a

pair of blue tennis shoes with

white stripes. At trial, defend-

ant stated that he had spent the

entire evening in question with his

A-6

girlfriend, Pamela Pharms, in her dorm

room. He stated that he purchased the

amplifier and ring from a man named

"Bob" in a parking lot for $60. He

borrowed the automobile from a friend

to use while moving between dormitories.

1. REASONABLE DOUBT

The defendant initially submits that

in light of the fact that all of the

evidence of guilt was circumstantial and

the fact that there existed unrefuted

alibi evidence, he was not proved guilty

beyond a reasonable doubt. Defendant

cites a number of cases wherein the

appellate court has reversed convictions

due to failure to prove guilt beyond a

reasonable doubt. PEOPLE v. MOORE (1973),

12 Ill.App.3d 78, 298 N.E.2d 202; PEOPLE

v. CLAUDIO (1971), 3 Ill.App.3d 309,279

N.E.2d 39; PEOPLE v. ADAMS (1969), 115 Ill.

App.2d 360,253 N.E.2d 23.

A-7

We are not persuaded.

[1,2] To support a conviction upon

circumstantial evidence, it is only

necessary that the proof of circum-

stances be of such a conclusive na-

ture and tendency as to lead on the

whole, to a satisfactory conclusion

and to produce a reasonable and

moral certainty that the accused,

and no one else, committed the

crime. (PEOPLE v. MARINO (1970),

44 Ill2d 562, 256 N.E.2d 770.)

It is essential that the facts prov-

ed be not only consistent with de-

fendant's guilt but also inconsis-

tent with any reasonable hypothesis

of innocence. The State is not, how-

ever, required to establish guilt be-

yond the possibility of a doubt.

A-8

PEOPLE v. BRANION (1970), 47 I11.2d

70,77,265 N.E.2d 1,5 Cert. Denied

(1971), 403 U.S. 907, 91 S.Ct. 2213,

29 L.EG. 2d 683.

{[3] In the instant case, the de-

fendant was the operator of an auto-

mobile which matched the description

of the one at the scene. He possess-

ed blue tennis shoes with white stripe

and a green Army fatigue jacket - both

no different from those worn by the

perpetrators. Finally - the most

incriminating circumstance - he was

in possession of the spoils of the

offense. Recent, exclusive, and un-

explained possession of stolen items

may give rise to an inference of

burglary and armed robbery, and is

sufficient to sustain the conviction

unless overcome by facts or circum-

stances which create a reasonable

A-9

doubt. PEO?LE v. FRANCESCHINI (1960),

20 Ill.2d 126, 169 N.E.2d 244; PEOPLE

v. BULLOCK (1977), 31 I1LL.App.3d 149,9

Ill.Dec. 218, 366 N.E.2d 475.

[4] Defendant strenously points

to the unrefuted alibi evidence. As

noted above, defendant testified that

he spent the entire evening with

Pamela Pharms. Pharms corroborated

this statement and another resident

of the floor, Tina Holmes, stated that

she saw the defendant on the dorm floor

On the night in question. The State

offered no evidence to refute this

testimony. The jury was not, how-

ever, required to believe the alibi

evidence, even though it was unrefut-

ed. PEOPLE v. GRICE (1978) 60 I11.App.

3a /, Li? ITill.Dec. 264, 376 N.E.2d 263.

A-10

We further note that there were

sufficient questions raised so as to

discredit the corroboration of de-

fendant's alibi. Holmes stated that

she saw defendant Letween 7 p.m. and

12 p.m. on the night of December 17,

1978. She stated that she did not

see defendant enter Pharms' room

and that she would not have known if

defendant had left the floor. Since

the instant offense was committed

Sometime after 1 a.m., the testimony

of Holmes was of little probative

value.

The credibility of Pharms was al-

SO questioned. Pharms stated that

she did not know whether she loved

defendant or whether she hoped to

marry him. The prosecution then in-

troduced a copy of the letter Pharms

A-11

had written in 1978 stating that she

loved defendant and hoped to marry

him. Clearly she was not a disinter-

ested witness.

[5] Under the facts and circum-

Stances of this case, the jury could

have properly determined that defend-

ant was guilty beyond a reasonable

doubt, and we will not substitute

our judgment for that of the jury.

II. NEWLY DISCOVERED EVIDENCE

Defendant made a motion for a new

trial which was accompanied by an af-

fidavit signed by Kevin Marshall,

Stating that he was a witness to the

transaction between defendant and

the man named "Bob." The affidavit

Stated that he did not come forth

earlier because he was afraid of

retaliation from "Bob." Since the

A-12

time of trial, Marshall had learned

that "Bob" had been killed in Chicago.

[6] To award a new trial in the

basis of newly discovered evidence,

the new evidence must be of such a

nature that it would probably change

the result on retrial; must be ma-

terial to the issue and not mere-

ly cumulative; and must be of such

a nature that it could not have been

discovered prior to trial by the ex-

ercise of due dilligence. PEOPLE

v. TORRES (1977), 47 I1l1.App.3d 101,

> I11.Dec. 480, 361 N.E.2d 803.

[7] Of the above requirements,

One of these has not been met: De-

fendant has not shown due diligence

in obtaining Marshall's testimony.

At trial, defendant stated that

there were a number of other people

A-13

who had observed the transaction with

"Bob." He had seen these people around

but did not know them personally. De-

fendant, when asked if he had ever tried

to locate the other individuals, re-

plied negatively.

The trial court correctly denied the

motion for a new trial.

III CROSS-EXAMINATION - PRIOR

CONVICTIONS

On direct examination, defense

counsel asked the defendant about his

prior convictions for forgery.

"Q. And could you tell us,

please, what, if any,

problems you had last

year with the law?

A. I wrote two bad checks,

one for $14 and one for

$41.

Q. And what happened after

that?

I pleaded guilty to it.

To what offense, please?

To forgery.

oOo FF O Pp

And did you contest those

charges?

A. No, I didn't.

Q. What is your plea in this

case, Mr. Perry?

A. Not guilty."

On cross-examination, the trial court

allowed the State, over defendant's ob-

jection, to elicit from defendant that

his guilty plea was pursuant to a plea

agreement. Defendant now claims that

this constitutes reversible error.

[8] While proof of a prior convic-

tion offered to discredit the testimony

of the accused may only be done by in-

troduction of a prior record and not

A-15

cross-examination (PEOPLE v.

DONALDSON (1956), 8 Ill.2d 510, 134

N.E.2d 776), the prosecution's ex-

amination in this case was not im-

proper.

[9] As noted above, the fact of a

prior conviction was brought out on

direct examination by defense counsel.

Additionally, the manner of questioning

employed on direct examination indicates

that defense counsel was trying to in-

fer innocence on the present charges by

the fact that defendant had pleaded

guilty to other charges. This was high-

ly improper (See PEOPLE v. BELVEDERE

(1979), 72 IT1ll.App.3d 998,28 I1ll.Dec.

649, 390 N.E.2d 1239), and the State's

Attorney was entitled to refute this

inference by establishing the plea

agreement.

A-16

IV. JURY ARRAY

Defendant, relying upon the Supreme

Court's decision in TAYLOR v. LOUISIANA

(19735), 419 U.8. 527, 95. 8.Ce. 632, 42

L.Ed.2d 690, and DUREN v. MISSOURI

(1979), 439 U.S. 357, 99 S.Ct. 664, 58

L.Ed.2d 579, also argues that the trial

court erred in refusing a hearing on

defendant's challenge to the array of

prospective jurors from which Illinois

State University students had been ex-

cluded.

In TAYLOR, the court held unconstitu-

tional a Louisiana statute which prov-

ided that women were not selected for

jury duty unless they previously filed

a written declaration of their desire

to serve. In DUREN, the court struck

down a Missouri statute which provided

an automatic exemption from jury service

A-17

for any woman requesting not to serve.

[10] Defense counsel, in the in-

Stant case, made an ORAL challenge to

the jury array. The trial court den-

ied the motion, noting that the motion

must be presented in WRITTEN form and

accompanied by supporting affidavits.

The trial court correctly stated

the law and was under no duty to con-

duct a hearing on defendant's oral

motion. IllRev.Stat. 1977, ch. 38,

par. 114-3(b); PEOPLE v. HUGHES

(1977), 46 Ill.App.3d 490, 4 IllDec.

930, 360 N.E.2d 1363.

V. REBUTTAL

Defendant claims that reversible

G6rror occurred during the State's re-

buttal to defendant's case.

We disagree.

A-18

[ll] Prior to trial, defendant in-

formed the police that he had bought

the ring and amplifier from a guy named

"Bob" who entered Building A of Hill-

side Apartments. At trial, however,

defendant stated that "Bob" entered

Building E. On rebuttal, the State

called the officer to whom the previ-

ous statement had been given. Robert

Thicklen was also called to testify

—.--- that he lived in Building A and that

he did not sell the stereo equipment

to defendant. On surrebuttal, de-

fendant testified that Thicklen was

not the "Bob" who had sold him the

amplifier.

Defendant claims that the State's

use of Thicklen's testimony was re-

versible error. The error in allow-

ing the testimony was one of relevancy.

A-19

Thicklen's testimony did not contradict

any evidence presented on defendant's

case and therefore was not proper re-

buttal. The only effect which Thicklen's

testimony could have had was to establish

that defendant's prior statement to tue

police was incorrect.

While it was error to allow Thicklen's

testimony, an examination of the record -

especially in light of defendant's test-

imony on direct examination and on sur-

rebuttal - reveals that Thicklen's test-

imony was virtually devoid of probative

value. Clearly the error was harmless

in this cause.

VI. MOTION TO SUPPRESS

Defendant also claims that it was

error for the trial court to deny his mo-

tion to suppress evidence found in the

automobile and in his dormitory room

A-20

as fruits of an illegal arrest. (Both

searches and the arrest were made with-

Out warrants.)

(12,13] A person may be arrested with-

Out a warrant when probable cause exists

to do so. Probable cause exists when

the facts and circumstances within the

arresting officer's knowledge are suffic-

ient to warrant a man of reasonable cau-

tion in believing that an offense has

been committed and that the person arres-

ted has committed the offense. The

police need not have evidence against

the defendant sufficient to sustain con-

viction. (PEOPLE v. ROBINSON (1976), 62

Ill.2d 273,342 N.E.2d 356.) Whether

Or not probable cause for an arrest ex-

ists in a particular case denends upon

the totality of the facts and circun-

Stances known to the officers at the

A-21

time of the arrest. PEOPLE v. CLAY

(1973), 55 I112d 501,304 N.E.2d 280.

[14] In the instant case, the officers

had received a report from Belz stating

that a black over yellow Buick with am-

ber headlights and a decoration hanging

from the rearview mirror blocked the

driveway next to 216 South Coolidge at

the approximate time of the offense.

Fifteen hours later, a car fitting the

description was seen parked on the south

Side of an ISU dormitory. An officer

observed three young men loading items

into the automobile. Under the facts

of this case, the trial court's con-

clusion that probable cause existed

was not manifestly erroneous. CLAY.

[15] Defendant also contends that

probable cause was lacking because the

police did not take actions to verify

the statements made by Belz or to

check his reliability. We note that

in this case the informant was a pri-

vate citizen and not a paid profes-

Sional. As such, the officers were

justified in relying upon his infor-

mation without independent verific-

ation or examination of his relia-

bility. See PEOPLE v. HOFFMAN

(1970), 45 Il1l.2d 221, 258 NE24

326, cert. denied (1970), 400 U.

Ww

904, 91 S.Ct. 142, 27 L.Ed.2d 141;

PEOPLE v. FISHER (1979), 76 I1ll.App.

3d, 331, 32 Ill.Dec. 107, 395 N.E.2a

54.

VII. INTRODUCTION OF EXHIBITS

Defendant next argues that the in-

troduction of 25 items of bur

proceeds which had not been connected

to defendant was error and that cer-

A-23

tain other items - defendant's shoes,

jacket, knife, and gun grip - were

irrelevant and should have been ex-

cluded.

[16-19] Evidence is admissible

where it fairly tends to prove the

offense charged and any circumstances

may be put in evidence which tend

to make the proposition at issue

more or less probable. Physical evi-

dence may be introduced where there

is proof to connect the evidence to

defendant and the crime. (PEOPLE v.

FAIR (1977), 45 I1l1l.App.3d 301, 4 Ill.

Dec. 15, 359 N.E.2d 848.) Admissibil-

ity does not require a showing that

the evidence was actually used in the

offense charged as long as it is shown

that the object is at least suitable

for the commission of the crime.

A-24

(PEOPLE v. MEEKS (1978), 59 I11.App.

3d 521, 16 Ill.Dec. 844, 375 N.E.2d

1001.) The propriety of receiving

demonstrative evidence rests pri-

marily within the discretion of

the trial judge and the exercise

of that discretion will not be in-

terfered with absent an abuse which

prejudices the defendant. FAIR.

[20] It was not error to allow

the introduction of defendant's shoes,

jacket, knife, and gun grip. The

victims of the offenses stated that

the shoes and jacket, while not hav-

ing any distinguishing characteris-

tics, were in no way different from

those worn by the perpetrator. Addit-

ionally, there is no question that

the perpetrators were armed with at

least one gun and one knife. The

A-25

common nature of these items affects

the amount of weight given to the fact

that they were found in defendant's

possession but does not make them in-

admissible.

[21] Likewise, we do not agree that

the admission of items not found on

defendant constituted reversible error.

At trial the jury was not told where

the prosecution obtained these items.

The deferdant on direct examination de-

nied ever seeing the items. Under the

facts of this case, defendant has not

shown any prejudice due to the admission

of this physical evidence. PEOPLE v.

HOUCK (1977), 50 Ill.App.3d 274, 8 Ill.

Dec. 338, 365 N.E.2d 576.

A-26

VIII. CONSTITUTIONALITY OF CLASS x

LEGISLATION

[22] Finally, defendant asserts

that Class X legislation (Public

Act 80-1099, effective February 1,

1978) is unconstitutional. It is

Claimed that by making all senten-

ces determinative, eliminating the

prison review board's discretion in

granting parole release and by re-

quiring minimum mandatory sentences,

the legislature has effectively

abandoned rehabilitation as an ob-

jective of sentencing. Defendant

notes that article I, section ll, of

the Illinois Constitution of 1970

provides that all penalties shall

be determined both according to the

Seriousness of the offense and with

the objective of restoring the offender

A-27

to useful citizenship.

The fallacy of defendant's position

is that it is based on the assumption

that early release and parole are the

Only means of rehabilitation. This is

a position we are not prepared to

espouse. The methods of rehabilitating

the criminal offender have been the sub-

ject of considerable, diverse discussion.

We feel that this is a question peculiarly

Suitable for legislative investigation,

analysis, and action. We do not feel that

Public Act 80-1099 has abandoned the con-

cept of rehabilitation.

Affirmed.

CRAVEN and WEBBER, JJ., concur

A-28

1 S OF THE OPTNTONe

COPIES SF LTLe, / iV LUI IS,

ORDERS AND FINDINGS

OF THE CIRCUIT COURT OF

MCLEAN COUNTY, ILLINOIS

Rulings on Motion to Suppress

THE COURT: Well, this of course, is

2 matter of a Motion to Suppress evidence

because it was seized illegally. First of

all in connection with Mr. Belz, the Court

inds that the circumstances in connection

with his observations that he made and

from where they were made, give rise to the

inference that Mr. Belz is a private citizen

and as such, presumse to be reliable in

communicating information to the police in

clrcumstances such as this. Court further

finds that the information which originated

with Mr. Belz was relayed among the various

police officers of the denartment of th

-

I.S.U. Police Department and the Normal

A-29-

Police Department, disseminated to various

units of those volice departments and among

those who received the information were

the officers who testified here today;

from the information that officer knew

because of that, from the observations

that were made by the officers which

observations indicated that the auto-

mobile which was sighted by the I.S.U.

Dolice officer who testified, matched

the description of the automobile in

which was used in the incident, and from

the observation of the officer of the

individuals loading articles and items

into the automobile, the Court finds there

is probable cause to believe that the

contents of the automobile seized and

further that the search of the auto-

mobile was made at the premises or at

; : ‘ ce 4 ~ Y -

tne time of the stopping of the

5 ° éc%

automobile and later at the police

department was incident to a lawful arrest.

In connection with the search of the defendant's

room, the Court finds that there was a

voluntary, willing consent given by th

defendant to the police officer for the

search, and though no promise was made

to the defendant to the consent that

he gave, therefore, it is the opinion

“

of the Court that the Motion to Suppres

the evidence should not be allowed.

The Court will deny the Motion to Suppress.

A=-31

RULING ON CHALLENGE OF THE ARRAY

THE COURT: Well, this motion is now

made orally, and it is the Court's

understanding such a motion is approp-

riately made in writing Supported by

an affidavit and burden of proof.

With regards to the challenge to the

array upon the motion, I believe it

can be concluded upon examination of

the list of prospective jurors whether

Or not there are any students from

the university who make up a part of

the particular group of prospective

jurors, and whether in any event

that would be a proper challenge to

the array.

RULING ON DEFENDANT'S POST TRIAL

MOTION

THE COURT: Thank you. Gentlemen,

the Court has previously to the hearing

today, reviewed the Motion for a New

Trial that was filed a number of days

ago. So the Court has had an opportuni-

ty to review that, and the Court has now

received and considered the Affidavit

submitted today by the Defense Counsel,

and now had the benefits of the argument

and suggestions of counsel. I think the

Court is prepared to rule on the Motion

for New Trial.

First of all in regard to the matter

of the newly discovered evidence and the

Situation as to a possible change in the

result or outcome of the trial. The

main thrust of the Defense in this case

was, Of course, alibi; that being that

A- 33

the defendant was with a young lady at

the time of the incident. That aspect

of the Defense, the alibi which was

provided by the defendant's testimony

also supported by other witnesses and

apparently was rejected by the jury.

In regard to the matter of the dil-

igence is essentially correct and that

due diligence has not been demon-

strated in regard to the proposed new

evidence.

The Motion refers to a number of

other matters, rulings on motions

by the Court before and during the

trial. It also refers to various

evidentiary rulings made by the

Court during the trial. The Court

is of the opinion that the rulings

On those matters by the Court were

correct. The other matters referred

A-34

to in the motion including the un-

constitutional nature of the Statute

Or home invasion, the Court feels are

not well taken. And the Court is of

the opinion that there was sufficient

evidence to warrant the conviction

in this case, and that the defendant

was proven guilty beyond a reason-

able doubt.

Therefore, it is the Court's

Opinion that the Motion for New

Trial should not be allowed, and

the Court will, therefore, deny the

Motion for New Trial.

A-35

OVERRULE OF OBJECTION TO THE ADMISSIONS

OF ILLINOIS SEIZURE EVIDENCE

MR. STEVENS: Number 3, I will only

renew my Motion to Suppress objection,

which I am not waiving.

THE COURT: That is the amplifier,

right. I will admit that.

— 2)

APPENDIX III

The Order of the Supreme C

in its Entirety in Item J of

(page Al of Appendix).