Opposition — Perry v. Illinois

IN THE

Supreme Court of the United States

OcTOBER TERM, 1980

DENNIS PERRY,

Petitioner,

VS.

PEOPLE OF THE STATE OF ILLINOIS,

Respondents.

BRIEF IN OPPOSITION TO PETITION

FOR WRIT OF CERTIORARI TO THE

SUPREME COURT OF ILLINOIS

TYRONE C. FAHNER,

Attorney General,

State of Illinois,

MELBOURNE A. NOEL, Jr.,

Davip CassorLa,

CATHY ANN PILKINGTON,

Assistant Attorneys General,

188 W. Randolph St.

(Suite 2200),

Chicago, Illinois 60601,

(312) 793-2570,

Attorneys for Respondents.

BRAD JANSEN, a Second

Year Law Student, as-

sisted in the preparation

of this brief.

Printed by the Authonity of the State of IHlinors— 4-81-4— PO §2425

a

QUESTIONS PRESENTED FOR REVIEW

(1) Whether the warrantless search of an automobile at

the police station after petitioner’s arrest and after an officer

had driven the vehicle to the police station violated petitioner’s

Fourth Amendment rights:

a) Whether police officers after effecting petitioner’s

arrest and driving petitioner’s vehicle to the police station

may examine articles in the interior of the car without first

obtaining a warrant.

b) Whether police who have a description of a suspect

vehicle but who have not yet located the vehicle are

required to obtain a John Doe search warrant on the

supposition that the vehicle will be located during the

period in which the warrant may be executed.

c) Whether police who have a description of a suspect

vehicle, a method of operation, and a description of stolen

articles who spot a vehicle matching the description,

observe conduct indicative of the method of operation and

see similar articles visible in the car’s interior upon stop-

ping the vehicle, have probable cause to arrest the occu-

pant and search and seize the articles.

(2) Whether the trial court’s refusal to hold a hearing on

petitioner’s challenge to the array of prospective jurors because

of petitioner’s procedural default violated petitioner’s Sixth and

Fourteenth Amendment rights.

TABLE OF CONTENTS

PAGE

QUESTIONS PRESENTED FOR REVIEW.................. |

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ARGUMENT:

CERTIORARI SHOULD BE DENIED BE-

CAUSE DECISIONS OF THIS COURT

CLEARLY ESTABLISH THAT THE FAIL-

URE OF THE OFFICERS IN THIS CASE TO

OBTAIN A SEARCH WARRANT PRIOR TO

EXAMINING A STEREO AMPLIFIER

WHICH WAS ON THE FRONT SEAT OF

THE AUTOMOBILE PETITIONER HAD

BEEN DRIVING PRIOR TO HIS ARREST

DID NOT VIOLATE PETITIONER’S

FOURTH AMENDMENT RIGHTG.................... 7

CERTIORARI SHOULD BE DENIED BE-

CAUSE PETITIONER’S PROCEDURAL

DEFAULT CONSTITUTES AN ADEQUATE

AND INDEPENDENT GROUND OF DECI-

SION BARRING REVIEW BY THIS COURT... 13

I a sot g ans da Sas csp sad ncacelectissaeaneceoeemrness 15

iil

TABLE OF AUTHORITIES

PAGE

Cases:

Brinegar v. United States, 338 U. S. 160, 175

ok RRS REI IRB ED OAL OMNI ONS IPT FEAR IRS RR ae 1]

Cardinale vy. Louisiana, 394 U.S. 437 (1969)......... 12

Carroll y. United States, 267 U.S. 132 (1925)........ Yy

Chambers v. Maroney, 399 U.S. 42 (1970 )........000:. 9

Colorado v. Bannister, __. U. 8. ____, 101 S. Ct.

PR dels criccss sun erneasusgsicoesicesacsnin ann 1]

Coolidge v. New Hampshire, 403 U.S. 443 (1971). 10

Duren v. Missouri, 439 U. 8. 357 (1979) o.oo. 14

Henry v. Mississippi, 379 U.S. 443 (1965) oo... 13

Hilly. California, 401 U.S. 797 (1971) cocccccccccccceen. 12

Michigan v. Tyler, 436 U.S. 499 (1978) ooo. 14

South Dakota v. Opperman, 428 U.S. 364(1976).. 12

Tacon v. Arizona, 410 U.S. 351 (1973) woe. 12

Taylor v. Louisiana, 419 U.S. 522 (1978) wo... 13

Texas v. White, 423 U.S. 67 (1975 ).........ccccceeeeeseees 9

United States v. Blanton, 520 F. 2d 907 (1975)...... 10

Statutes:

Ill. Rev. Stat., ch. 38, § 114(6)( 1978 )..................... 13

Supreme Court of the Gnited States

OCTOBER TERM, 1980

DENNIS PERRY,

Petitioner,

VS.

PEOPLE OF THE STATE OF ILLINOIS,

Respondents.

BRIEF IN OPPOSITION TO PETITION

FOR WRIT OF CERTIORARI TO THE

SUPREME COURT OF ILLINOIS

JURISDICTIONAL STATEMENT

Respondents admit jurisdiction under 28 U. S. C.

§ 1257(3) to all questions excepting that portion of Argument |

pertaining to inventory search. Since petitioner failed to raise

that question in the Illinois Appellate Court and it was not,

therefore, considered by that Court, respondents contend this

Court is without jurisdiction as regards that question. 28

U.S. C. § 1257(3).

CONSTITUTIONAL PROVISIONS

The petitioner adequately sets forth the constitutional

provisions involved in this cause.

NATURE OF THE CASE

Three Illinois State University students were assaulted and

robbed during the course of a home invasion on December 18,

1978, shortly after 1:00 a.m. (Tr. 216, 265-266, 272, 273)

Because of darkness, only the perpetrators’ coats and shoes

could be identified by the victims. The victims’ next door

neighbor provided police with a description of a vehicle

blocking his driveway when he arrived home at 1:00 a.m. or

1:30 the morning of December 18th. He informed police that

he observed four individuals carrying items to the car. (Tr.

327) The suspect vehicle was observed by police at 4:24 p.m.

on December 18. (Tr. 333) Officers later stopped the automo-

bile and saw stereo equipment and speakers in the interior.

(Tr. 43). The suspect vehicle was driven to the police station

and when officers inventoried the amplifier found in the car

they discovered its serial and model numbers matched the

amplifier taken in the home invasion. (Tr. 44)

The defendant gave officers permission to search his dorm

room (Tr. 46-47), where officers found one of the victims’ class

ring (Tr. 361) and shoes and jacket that matched the victims’

description of their assailants. (Tr. 354)

Defendant was arrested approximately 17 hours after the

home invasion was reported to police. (Tr. 53)

After a jury trial, defendant Dennis Perry was convicted

for three counts of armed robbery, and one count each of home

invasion, burglary, and felony theft. He was sentenced to 20

years for each armed robbery charge, 20 years for home

invasion, 7 years for burglary, and 5 years for theft, all to run

concurrently. From the judgments of conviction defendant

appealed to the Illinois Appellate Court. After an affirmance,

Perry petitioned the Illinois Supreme Court for leave to Appeal.

Leave to Appeal was denied. Perry now petitions this Court for

a Writ of Certiorari.

3

STATEMENT OF FACTS

Search Of Petitioner’s Car

At Police Station After Petitioner’s Arrest

At 1:00 a.m. on December 18, 1978, Ronald Sobkoviak, a

student at Illinois State University, went downstairs to bed in a

bi-level he occupied with four other students at 216 S. Coolidge

in Normal, Illinois. (Tr. 216) Two other occupants were also

home asleep when the doorbell rang at 1:20—1:30. Mr.

Sobkoviak went to the door and encountered a thin black man,

who wore a green army fatigue jacket. He asked for “Dan.”

(Tr. 23)

Mr. Sobkoviak went to tell his roommate, Daniel Hick,

that there was a man looking for him and returned to his room.

(Tr. 231) Mr. Hick went to the door. (Tr. 260) When he

opened the door, the man drew a gun and forced entry. (Tr.

261) Several other individuals also entered. (Tr. 262)

Mr. Hick was forced down the stairs. One man got on top

of him (Tr. 263), held a knife to his back and threatened to cut

him. (Tr. 265, 266) When Ronald Sobkoviak heard the scuffle

he walked out of his room and saw a black man with a gun. He

was not as tall or as slim as the man who had rung the doorbell,

but because it was fairly dark Mr. Sobkoviak could not see any

of his features.

The man ordered Mr. Sobkoviak back to his room, where

he pushed him into bed and told Sobkoviak he was going to kill

him. (Tr. 234) Daniel Hick was brought into Sobkoviak’s

bedroom. (Tr. 265) Mr. Hick was cut in the neck and his face

was slammed into the floor with enough force to break two

bottom teeth. (Tr. 267)

The other roommate present that evening, Greg Bur-

meister, was brought to Sobkoviak’s bedroom by gunpoint and

told to lie flat on his face. (Tr. 235)

4

Next, the man on top of Sobkoviak asked for his wallet

and took the cash. (Tr. 236) Sobkoviak heard people in the

other bedrooms and a noise like the rooms were being ran-

sacked. (Tr. 238)

The men ordered the roommates to crawl to Dan’s room.

(Tr. 238) When the man concluded that they could not force

the roommates to crawl under the waterbed, they ordered the

roommates to crawl into Greg’s room. (Tr. 239) Dan was

thrown into the closet and Greg and Ron were forced under the

bed. (Tr. 241)

At one point, the intruders turned on the lights for two to

three minutes. (Tr. 242) From beneath the bed, Sobkoviak

could see three pairs of shoes: a pair of blue tennis shoes with

white slanted stripes, a pair of high-heeled black dress shoes

with rounded, square toes, and a pair of hiking boots with thick

shoelaces. (Tr. 241-242)

Greg also noticed that one man was wearing blue tennis

shoes with white stripes (Tr. 302) and identified an army

fatigue jacket as similar to the coat one of the intruclers wore.

(Tr. 304)

The intruders left the room, leaving a man to stand guard.

Sobkoviak heard noises like the house was being ransacked.

The intruders discussed whether to kill the roommates. Then,

nothing was heard. (Tr. 243) Approximately 15 or 20 minutes

elapsed from the time the intruders arrived, threatened, beat,

cut, held at gunpoint and robbed the roommates to the ume

when the intruders left. (Tr. 244)

Sobkoviak went to his room and found that it, like the

other rooms, was in shambles. (Tr. 244) Besides the cash taken

from his wallet, he was also missing his checkbook. (Tr. 245)

Mr. Flock was missing a Pioneer stereo amplifier, a McDonald

clock and some silver dollars. (Tr. 272) He was to see those

items the following day at the police station. Other items, such

as a ring and necklace, he never saw again. (Tr. 273) Greg

Burmeister testified that his amplifier in the living room was

—_

missing. At the police station the following day he was to

recover a class ring, belts, and a clock. (Tr. 307)

Martin Belz was the victim’s next-door neighbor. He

testified that when he came home around 1:00 or 1:30 a.m. the

morning of December 18, 1978, an automobile was blocking his

driveway. (Tr. 373) It was approximately a 1970 two door

Buick, yellow with a black vinyl top, with amber headlight

covers and a “lot of things” hanging from the rearview mirror.

(Tr. 324) Later that morning, Mr. Belz heard his dogs bark and

he looked out the window. He observed four individuals

carrying items to the Buick. (Tr. 326) At 9:30 a.m. Mr. Belz

notified police of his observations. (Tr. 327) A description of

the car was put out to all local police departments. (Tr. 13)

A campus police officer spotted a suspect vehicle that

matched the description at 4:24 p.m. outside the Waterson

Towers domitory. The car was a 1968 yellow Buick, with a

black vinyl top, amber headlight covers and a white tassel

hanging on the rearview mirror. (Tr. 333) He radioed the

police who sent two officers to observe the car. (Tr. 343) They

observed a black male get into the car and pull it in front of

Waterson Towers. Two other black males helped the defend-

ant load items into the back and trunk of the car. (Tr. 23) Two

subjects got into the car and pulled away. (Tr. 344) The

Officers followed (Tr. 344) and stopped the car near Beaufort

and Vernon. Defendant was driver of the car. (Tr. 345)

Defendant left the stopped automobile and walked to-

wards the squad car. He and his passenger, Maxine Mors, were

patted down and handcuffed. The officers checked the interior

of the car and found stereo equipment and speakers. Mis-

cellaneous items were in the trunk. An officer drove the suspect

vehicle to the police station. (Tr. 43) The officers inventoried

the Pioneer amplifier found in the automobile and discovered it

had the serial and model numbers of the amplifier taken in the

home invasion. (Tr. 44)

6

Defendant was read his Miranda rights. (Tr. 349-350) He

explained that a man named Bob at Hillside Apartments had

asked him if he wanted to buy an amplifier and class ring. The

officers asked defendant if he would let them search his dorm

room. He gave the officers permission. (Tr. 46-47)

The dorm room was searched and officers found the class

ring. (Tr. 361) They also recovered a green army fatigue

jacket and pair of blue and white tennis shoes. (Tr. 354)

Defendant was arrested approximately 17 hours after the

home invasion was reported to the police department. (Tr. 53)

At trial defendant testified that he had spent the entire

evening in question with his girlfriend, Pamela Pharms, in her

dorm room. (Tr. 379-380) He stated that the amplifier and

class ring were purchased from a man named “Bob” in a

parking lot for $60. (Tr. 384-385) He had borrowed the car

from a friend to use while moving between dormitories. (Tr.

386, 387)

Jury Selection

Prior to trial, defense counsel challenged the jury array on

the grounds that it appeared Illinois State University students

were excluded from the venire. (Tr. 99) The trial court noted

that the motion was made orally and that it was the court’s

understanding that “such a motion is appropriately made in

writing supported by an affidavit and burden of proof.”

The court stated that it believed it could be concluded

upon examination of the list of prospective jurors whether there

were any students from the university who made up the jury

pool and whether it would be a proper challenge to the array.

The court denied the motion. (Tr. 100)

Voir dire was held and the jurors were sworn. (Tr. 101-

196)

I.

CERTIORARI SHOULD BE DENIED BECAUSE DECI-

SIONS OF THIS COURT CLEARLY ESTABLISH THAT

THE FAILURE OF THE OFFICERS TO OBTAIN A

SEARCH WARRANT PRIOR TO EXAMINING A STE-

REO AMPLIFIER WHICH WAS ON THE FRONT SEAT

OF THE AUTOMOBILE PETITIONER HAD BEEN

DRIVING PRIOR TO HIS ARREST DID NOT VIOLATE

PETITIONER’S FOURTH AMENDMENT RIGHTS.

On December 18, 1978, shortly after 1:00 a.m. several

students at Illinois State University were awakened from their

beds and subjected to a brutal and terrifying home invasion.

During the course of the home invasion, one student was held

facedown at gunpoint and his life threatened; another student

was held facedown with a knife held to his back, threatened,

cut and had two teeth broken. The perpetrators of these crimes

removed many articles from the apartmer:, including jewelry,

money and stereo equipment. Due to the dark conditions,

however, the students were unable to describe their assailants to

the police, except to state that the assailants were black and that

one wore blue tennis shoes with white-slanted stripes, another

wore high-heeled black dress shoes with rounded, square toes

and the third wore a pair of hiking boots with thick shoelaces.

A next-door neighbor, Martin Belz, notified the police at

9:30 a.m. on December 18, 1978 that he had observed an

automobile blocking his driveway shortly after 1:00 a.m.

Sometime later Mr. Belz’s dogs had barked; he had looked out

the window and observed four (4) individuals carrying items to

the automobile. Mr. Belz described the automobile to police as

approximately a 1970 Buick, two door, yellow with a black

vinyl top, amber headlight covers and a “‘lot of things” hanging

from the rearview mirror. A description of the car was put out

to all local police departments.

At 4:24 p.m. campus police spotted a 1968 yellow Buick,

black vinyl top, amber headlight covers and a white tassle

hanging on the rearview mirror. The vehicle was parked

outside a college dormitory. The campus police radioed city

police who sent two officers to observe the car. They observed

a black male get into the car and pull it in front of the

dormitory. Two other black males helped petitioner load items

into the car. The three got into the car and drove away. The

officers then stopped the vehicle. Petitioner was the driver.

Petitioner and a passenger were arrested and transported to the

police station. The officers observed stereo equipment in the

interior of the car. An officer drove the suspect’s vehicle (i.e.

the 1968 yellow-black Buick) to the police station. Once at the

police station the officers discovered that the serial and model

numbers of the amplifier located on the front seat of the suspect

vehicle matched the numbers of the amplifier taken in the home

invasion.

Petitioner seeks certiorari upon an alleged Fourth Amend-

ment violation involving the failure of the officers to obtain a

search warrant prior to searching petitioner’s automobile. Peti-

tioner’s contentions are: (1) that since 7% hours elapsed

between the time police were given a description of the car and

the time the car was stopped, the officers had ample time to

obtain a search warrant for the car; (2) that the officers had no

reasonable grounds to believe that the car contained stolen

goods, contraband or evidence of a crime and, therefore, had

no authority to conduct a warrantless search of the automobile;

(3) the officers did not have sufficient probable cause to effect

petitioner’s arrest; (4) since the search of the automobile

occurred after petitioner had arrived at the police station, the

search could not be justified as incident to arrest; (5) the

warrantless search of the automobile cannot be justified as an

inventory search. For all the reasons hereinafter stated,

certiorari should be denied.

The Warrantless Search Of the Vehicle

At The Police Station Was Proper

The factual situation and issues raised in this case bear

striking similarity to Chambers v. Maroney, 399 U. S. 42

(1970). In Chambers a description of a vehicle in which

robbers had escaped the scene was broadcast over the police

radio. Shortly thereafter, officers encountered a vehicle fitting

the description of the escape vehicle. They arrested the driver

and its passengers and took the automobile to the police station.

The car was searched and evidence of the robbery was

discovered concealed in a compartment beneath the dashboard.

In sustaining the warrantless seizure of the vehicle and its

subsequent warrantless search, this Court said:

Arguably, because of the preference for a magistrate’s

judgment, only the immobilization of the car should be

permitted until a search warrant is obtained; arguably,

only the “lesser” intrusion is permissible until the magis-

trate authorizes the ‘greater’. But which is the “greater”

and which the “lesser” intrusion is itself a debatable

question and the answer may depend upon a variety of

circumstances. For constitutional purposes, we see no

difference between on the one hand seizing and holding a

car before presenting the probable cause issue to a magis-

trate and on the other hand carrying out an immediate

search without a warrant. Given probable cause to search,

either course is reasonable under the Fourth Amendment.

399 U.S. at 51-52.

Hence, the issue upon which petitioner seeks certiorari,

that is. whether the officers should have delayed the search of

petitioner’s vehicle at the police station and after petitioner’s

arrest until they had obtained a warrant was settled in Cham-

bers v. Maroney, supra. See also Texas vy. White, 423 U.S. 67

(1975) (probable cause factor developed at the scene still

obtains at the station house), Carroll v. U.S., 267 U.S. 132

(1925).

In a related contention petitioner contends that since 7 1/2

hours elapsed between the time the police learned the descrip-

10

tion of the suspect vehicle from Belz and the time they actually

spotted the vehicle, the police had ample time to and should

have obtained a search warrant for the car. (Petition, 30-31).

Petitioner attempts to liken these facts to Coolidge v. New

Hampshire, 403 U. S. 443 (1971) in support of the contention

that police officers in such situations should be required to

obtain warrants. Respondents contend that certiorari should be

denied because Coolidge is distinguishable and the argument is

otherwise without merit.

In U.S. v. Blanton, 520 F. 2d 907 (6th Cir. 1975) the Sixth

Circuit Court of Appeals considered a similar argument. In that

case defendant Blanton argued that since the FBI knew a week

in advance that the car could contain contraband, they should

have obtained a search warrant prior to the time they actually

spotted the car. The Sixth Circuit distinguished Coolidge on the

grounds that in Coolidge the officers had known the location of

the car to be searched for several days, they had no reason to

believe Coolidge’s car would be moved to another jurisdiction,

and had no reason to believe the car contained contraband.

Substantively, the Court held that since the car had not been

located in any particular spot the FBI agents could not be

required to obtain a warrant, good only for a short time, on the

chance that the car could be located within that period.

Respondents submit that the Sixth Circuit's decision dis-

tinguishing Coolidge and refusing to require officers to obtain

warrants on vehicles until the officers have at least located or

observed the vehicle is correct, that petitioner’s argument is

without merit and that certiorari thereupon should be denied.

Additionally, petitioner contends that the officers lacked

probable cause to arrest petitioner and lacked probable cause to

believe that the car contained stolen goods, contraband or

evidence of crime. As to the requisites of probable cause, this

Court has stated:

Probable cause exists where the facts and circumstances

within [the officer’s] knowledge and of which they have

1]

reasonably irustworthy information [are] sufficient in

themselves to warrant a man of reasonable caution in the

belief that an offense has been or is being committed.

Brinegar v. U.S., 338 U.S. 160, 175 (1949) citing Carroll

v. U.S., supra.

The arresting officers in this case, by this definition were

certainly aware of sufficient facts and circumstances both to

arrest petitioner and to believe that the stereo equipment visible

in the car’s interior was probably stolen. At the time of the

arrest the officers had a description of the vehicle involved in

the home invasion. The vehicle petitioner was driving matched

that description. Mr. Belz, the next door neighbor had reported

seeing 4 black males carrying articles from the students’

apartment to the car during the home invasion. The officers

observed 3 black males carrying articles from a college dormi-

tory to a car matching the description of the home invasion

suspect vehicle, loading the articles and driving away. Upon

stopping the vehicle they observed stereo equipment in the car,

and, specifically, an amplifier in the front seat. One of the

victims of the home invasion had reported the loss of an

amplifier. Hence, from the facts concerning the home in-

vasion—the description of the suspect vehicle, number of

participants, the method of operation and the target victims as

students, and the nature of the property stolen—the arresting

officers could reasonably believe that petitioner and his passen-

gers were involved in the home invasion and that the amplifier

in the front seat was fruit or evidence of a crime. Colorado v.

Bannister, U. S. , 101 S. Ct. 43 (1980), recently

decided by this Court, so held. In Bannister, a police officer

heard by radio dispatch that a theft of motor vehicle parts had

occurred. The dispatch indicated that a number of chrome lug

nuts were among the items stolen and described the two

suspects. The officer had earlier observed a blue 1967 Pontiac

GTO travelling at a speed above the legal limit but had lost

sight of it. He saw the vehicle again, still speeding, and stopped

it in order to issue a citation. As the officer approached, the

12

occupants got out of the car. A conversation ensued. During

the conversation, the officer observed chrome lug nuts as well as

two lug wrenches inside the car. Recognizing that the occu-

pants met the description of the suspects in the recent theft of

motor vehicle parts, the officer immediately arrested both

occupants and seized the lug nuts and wrenches. This Court

held that under these facts the officer had sufficient probable

cause not only to effect the arrest, but, under Carroll and

Chambers, probable cause to seize the incriminating items from

the vehicle without a warrant. Jd at 44. Respondents submit

that petitioner’s contentions regarding the officers’ probable

cause or lack thereof in the instant case were settled in Colorado

v. Bannister, supra and that, therefore, certiorari thereupon

should be denied.

Inventory Search

Petitioner also contends that the warrantless search of

petitioner’s vehicle after petitioner’s arrest and after a police

officer had driven the vebicle to the police station cannot be

justified as an inventory because the officers were not in-

ventorying the contents of the vehicle, but rather were contin-

uing to pursue a criminal investigation. Respondents have

examined the brief of both parties submitted to the Illinois

Appellate Court and the Illinois Appellate Court's opinion

(Petition, A-2-A-27) and submit that the question whether the

search was sustainable as an inventory search was neither

argued in the briefs nor raised sua sponte by the Illinois

Appellate Court. The United States Supreme Court cannot

decide issues raised for the first time on review of a state court

decision. Zacon v. Arizona, 410 U. S. 351 (1973), Hill v.

California, 401 U. S. 797 (1971), Cardinale v. Lousiana, 394

U. S. 437 (1969). Since petitioner did not raise and the Illinois

Appellate Court did not consider, the question whether the

search was sustainable as an inventory search under South

Dakota v. Opperman, 428 U. S. 364 (1976), respondents

contest jurisdiction under 28 U. S. C. § 1257(3) and contend

that certiorari must be denied.

13

CERTIORARI SHOULD BE DENIED BECAUSE PETI-

TIONER’S PROCEDURAL DEFAULT CONSTITUTES

AN ADEQUATE AND INDEPENDENT GROUND OF

DECISION BARRING REVIEW BY THIS COURT.

Petitioner alleges that his Sixth and Fourteenth Amend-

ment rights to a jury chosen from a fair cross-section of the

community, Taylor v. Louisiana, 419 U. S. 522 (1975), were

violated when the trial court refused a hearing on petitioner's

challenge to the array of prospective jurors from which college

students had been excluded. The trial court grounded its

decision on petitioner’s procedural default, that is, upon the fact

that Illinois law requires that motions challenging the jury array

be in writing, supported by affidavit and shall state facts which

show that the jury panel was improperly selected or drawn. //l.

Rev. Stat.. ch. 38, § 114-3(b) (1978). On review, the Illinois

Appellate Court agreed with the trial court’s assessment of the

law and held that due to the procedural default, the trial court

properly refused to conduct a hearing on the motion. (Petition,

A-17).

In Henry v. Mississippi, 379 U. S. 443 (1965) this Court

held that failure to present a federal question in conformance

with state procedure constitutes an adequate and independent

ground of decision barring review in the Supreme Court so long

as the State has a legitimate interest in enforcing its procedural

rule. Petitioner thus asserts that the State of Illinois has no

legitimate state interest in requiring the motion to be in writing

and accompanied by affidavits which state facts showing that

the jury panel was improperly selected or drawn. Respondents

disagree. The procedural requirement of a written motion with

supporting affidavits on motions challenging the jury array

serves a legitimate state interest. States undoubtedly have a

legitimate interest in the orderly administration of their pro-

cesses of criminal justice which includes expeditious handling of

criminal cases and considerations of judicial economy. On a

14

motion challenging the jury array, the defendant, in order to

establish a prima facie violation of the fair cross-section require-

ment, must show (1) that the group alleged to be excluded is a

“distinctive” group in the community; (2) that the representa-

tion of this group in venires from which juries are selected is not

fair and reasonable in relation to the number of such persons in

the community and (3) that this under-representation is due to

systematic exclusion of the group in the jury selection process.

Duren v. Missouri, 439 U. S. 357 (1979), Michigan v. Tyler,

436 U.S. 499 (1978). Respondents contend that the nature of

the proof required to establish the prima facie showing of a

violation in itself justifies the requirement that the motion be

written and documented with factual affidavits. A trial court

cannot be expected to determine whether the prima facie

violation has been established based solely upon counsel’s bare

oral allegations. Additionally, respondents point out that

petitioner in this instance has failed to offer any explanation

whatsoever as to why the venire list was unavailable prior to the

commencement of jury selection, how trial counsel was able to

determine from merely looking at the list of names that none of

the persons in the venire were students and why the petitioner

could not and did not comply with procedural requirements.

The state has a legitimate interest in requiring that a motion

challenging the composition of the jury array be in writing and

accompanied by affidavits which state facts showing that the

jury panel was improperly selected or drawn. Irrespective of

the merit or lack thereof in petitioner’s claim, petitioner’s

procedural default on this question constitutes an adequate and

independent ground of decision that bars review by this Court.

For all these reasons respondents request that certiorari on this

issue be denied.

15

CONCLUSION

For all the reasons herein stated respondents respectfully

request that the Petition for Writ of Certiorari be denied.

Respectfully submitted,

TYRONE C. FAHNER,

Attorney General,

State of Illinois,

MELBOURNE A. NOEL, JR.,

DaviD CASSORLA,

CATHY ANN PILKINGTON,

Assistant Attorneys General,

188 W. Randolph St.

(Suite 2200),

Chicago, Illinois 60601,

(312) 793-2570,

Attorneys for Respondents.

BRAD JANSEN, a Second

Year Law Student, as-

sisted in the preparation

of this brief.