# Petition — Perry v. Illinois > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385007_0869%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1981 - **Citation:** 451 U.S. 983 ## Text 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). --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385007_0869%3A1. Public record. Not legal advice.