Petition — Illinois v. Savory

Supreme Court. U.S.

rites

8d -§ 72 NOV 28 1980

IN THE

MICHAEL RODAK, JR.. CLERK

Supreme Court of the Anited States

OcTOBER TERM, 1980

THE STATE OF ILLINOIS,

Petitioner,

VS.

JOHNNY LEE SAVORY,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE ILLINOIS APPELLATE COURT,

THIRD DISTRICT

TYRONE C. FAHNER

Attorney General

State of Illinois

MELBOURNE A. NOEL, JR.

Assistant Attorney General

188 West Randolph, (Suite 2200)

Chicago, Illinois 60601

JOHN X. BRESLIN

Deputy Director

State’s Attorneys Appellate

Service Commission

628 Columbus Street, Suite 402

P. O. Box 654

Ottawa, Illinois 61350

(815 )434-7010

Counsel for Petitioner

MICHAEL M. MIHM

State’s Attorney

Peoria County

Peoria, Illinois 61602

Of Counsel

Printed by the Authority of the State of INinois— 11-80-40

i

QUESTION PRESENTED FOR REVIEW

May the Illinois Appellate Court impose greater restric-

tions as a matter of federal constitutional law than has this

Court on reinterrogation of a defendant who is in custody

and has exercised his right to terminate questioning?

Parenthetically, need this Court’s restrictions as set forth

in Michigan v. Mosley be expanded?

ii

TABLE OF CONTENTS

PAGE

SER a A a RE ES AU RL li

Question Presented for Review....................ccccccsssscsssssvessssees ]

Radlk iccnontnbends cisessbseonerveoseusing l

ae su senmnennnstsbbnonhovstuniio 2

Constitutional Provisions Involved ..............:ccccccccceseeseeseeseees 2

Nee lo ssmnsnopinatutias 2

Reason Why the Writ Should Be Granted .....................20005 6

Nee a stshucentonencons 15

Opinion Below, People v. Savory, 82 Ill.App.3d

767, 403 N.E.2d 118 (3rd Dist. 1980) ............... Appendix A

Unreported Order of Illinois Supreme Court

Denying the Petition for Leave to Appeal.......... Appendix B

TABLE OF AUTHORITIES

Beckwith v. United States, 425 U.S. 341, 96 S.Ct. 1612, 48

L.Ed. 2d 1 ( 1976)5...ccscccesccssceocccccsescocccerseserenssssscosccossonsseese 14

Coney v. Wyrick, 532 F.2d 94 (8th Cir. 1976);.......:s:eseseresees 13

Michigan v. Mosley, 423 U.S. 96, 96 S.Ct. 321, 46 L.Ed. 2d

313 (1975); ....cecsccorssrsscscscrsscssserserersossnscsecscsnrscusasecsesenensess 6,8,11

Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.

2d 694 ( 1966); .....ccccorcoccscscsssescrsessccsecsneessenssnssscscsorseseesenees f

North Carolina v. Butler, 441 U.S. 369, 99 S.Ct. 1755,

L.Ed. 2d CRT Ye sprccdsvocnersctesoccniogsbspertonabesieiniten 7,10

Oregon v. Hass, 420 U.S. 714, 95 S.Ct. 1215, 42 L.Ed. 2d

570 (1975); .....cccccccsosescsccsssvesseccccsoscsscoesoseressesesensoossosseseesees 7

United States v. Boyce, 594 F.2d 1246 (9th Cir. 1979);....... 10

United States v. Corral-Martinez, 592 F.2d 263 (5th Cir. ~

1979) 5s ...0csccocsscooscssesscessecsesscacsssosccoonsonsesocnsscesnssnessscsssnseszecses 11

United States v. Crisp, 435 F.2d 354 (7th Cir. 1970); ......... 9

United States v. Hernandez, 574 F.2d 1362 (Sth Cir.

197B)s ..csrcoccncssvarscnecsossceesenscorsncsoveccesonocsvsnesesoonenoonaséssesocsoases 11

United States ex rel. Doss v. Bensinger, 463 F.2d 576 (7th

Cir. 1972), cert. denied, 409 U.S. 932, 93 S.Ct. 239, 34

Oa Bik TIE .ccisicaidosssitends cscmonincncenneteecshibcomsbodbacninesnenbenines 9

United States ex rel. Henne v. Fike, 563 F.2d 809 (7th Cir. —

OTT) 5s ..:cccrcccccsssevsescoccresscnsensscvorssossostsonsesorucenecnsonsseoosccascsese 11

White v. Finkbeiner, 611 F.2d 186 (7th Cir. 1979)........000 11,12

No.

Supreme Court of the United States

OCTOBER TERM, 1980

THE STATE OF ILLINOIS,

Petitioner,

vs.

JOHNNY LEE SAVORY,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE ILLINOIS APPELLATE COURT,

THIRD DISTRICT

OPINION BELOW

The opinion of the Appellate Court of Illinois, Third

Judicial District, is reported at 82 Ill. App. 3d 767, 403

N.E.2d 118 (3d Dist. 1980) (see Appendix A). The order of

the Illinois Supreme Court denying leave to appeal is not

reported, but is attached hereto (see Appendix B).

|

-

2

JURISDICTION

The opinion of the on ee te Court, Third

Judicial District, was filed on 1980. A timely

petition for leave to appeal was filed by the petitioner herein

in the Illinois Supreme Court. The order of the Illinois

Supreme Court denying the petition for leave to appeal was

entered on September 4Y 1980.

This Court’s jurisdiction is invoked under 28 U.S.C.

1257(3). The instant petition for a writ of certiorari is filed

within 60 days of the Illinois Supreme Court’s order denying

leave to appeal.

CONSTITUTIONAL PROVISIONS INVOLVED

United States Constitution, Amendment V

* * * nor shall any person * * * be compelled in any

criminal case to be a witness against himself, * * *.

United States Constitution, Amendment XIV

Section 1. * * * No State shall make or enforce any

law which shall abridge the privileges 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

jurisdiction the equal protection of the laws.

STATEMENT OF CASE

The corpses of the victims of a double murder were

discovered on January 18, 1977, in Peoria, Illinois, in the

victims’ home by their stepfather. Both had sustained

multiple stab wounds. Many witnesses and suspects were

interviewed and given lie detector tests in the course of the

large-scale investigation that ensued.

3

Defendant herein, Johnny Lee Savory, was first ques-

tioned in the afternoon of January 25, 1977, at his high

school by two officers. At this point the defendant was not a

suspect, but was merely an investigatory lead, since he had

apparently been the last person to see the victims alive.

The defendant gave an account of his activities on the

evening before and the morning of the discovery of the

murders to the officers who interviewed him at his school.

These officers asked the defendant if he would voluntarily

come to the police station so that other officers more familiar

with the details of the crimes could question him on matters

with which those first two officers may not have been

familiar. After telling his story to the second two officers at

the police station, several discrepancies were noticed between

defendant’s version and facts the officers had already devel-

oped from other sources in their investigation of the case.

They asked the defendant about these discrepancies.

The officers also asked the defendant if he would submit

voluntarily to a polygraph test, because they had no in-

dication why the defendant would not have correctly stated

the details as the officers knew them to be. The defendant

did voluntarily agree to the polygraph test, which was

administered that same evening, January 25, 1977.

As a result of his answers in the polygraph test, the

defendant was placed under arrest. He was given the

Miranda warnings immediately upon completion of the test

and before leaving the office of the polygraph examiner. The

defendant said he did not want to talk.

The defendant was not questioned any more that eve-

ning but was taken to the juvenile detention home. The next

morning (26th of January, 1977), at approximately 10:30, in

a

4

the presence of the defendant’s probation officer and his

father, the defendant was again asked if he would like to talk

in order to clear up some of the discrepancies in his story. At

this time, before beginning questioning on the morning of the

26th, the defendant was again warned of his Miranda rights

by one of the interrogating officers. In neither this morning

session, nor the prior day’s session, did defendant admit any

complicity whatsoever in the murders. During the morning

interrogation, the defendant was again confronted with

several of the discrepancies between his story and the known

facts, at which time the defendant changed his story.

The defendant was taken to lunch at noon and was

brought back to the police station in the afternoon at 12:35.

At that time the defendant stated explicitly that he would

“tell everything,” if his explanation could be made to Officer

Marcella Brown, a juvenile officer. The defendant then gave

another detailed statement of his activities, although none of

his statement was incriminating. At 4:30 p.m. the question-

ing ceased and defendant had dinner. At 6 p.m. defendant

arrived at the polygraph examiner’s office and was given

another polygraph examination. Immediately after this

examination, at approximately 7:30, the defendant confessed

the murders to Officer Marcella Brown.

The confession of the defendant was used as evidence at

his trial for the dual murders, after his motion to suppress the

confession had been denied by the trial judge. The defend-

ant appealed his conviction, claiming that the reinterrogation

following his first polygraph test and exercise of his right to.

silence violated his constitutional right to terminate question-

ing, since there was no showing that he knowingly and

voluntarily waived that right during the reinterrogation

before he confessed. Additionally, defendant claimed his

confession was not voluntary considering the evidence as a

whole, and that his sentences were excessive.

5

The Illinois Appellate Court, in a two-to-one decision,

reversed the determination of the trial judge on the motion to

suppress the confession, and remanded the cause for retrial

in which the confession could not be used as evidence.

The crux of the appellate court’s opinion was that the

reinterrogation of the defendant on the morning after he

exercised his right to terminate questioning was not preceded

by a waiver and that reinterrogation was impermissible

without the lapse of a significant amount of time, the giving

of Miranda warnings, together with the occurrence of some

event communicated to the defendant which might indicate the

reasonableness of the reconsideration of his previously ex-

ercised right to silence.

The appellate court stated that it was the burden of the

prosecution to show that something had occurred and had

been communicated to the defendant upon which his change

of position was predicated.

The appellate court held that the burden was not

satisfied by the lapse of time and the giving of the Miranda

warnings to the defendant in the morning after his first

polygraph test, together with the waiver of those rights. The

court held that the record must show at a minimum that

before the reinterrogation was commenced, the defendant

had changed his mind, and that there was some reasons for

his change of mind, before the resumption of questioning

could be deemed voluntary.

The appellate court also held that the confession was not

voluntary under the totality of the circumstances, as well as

that the defendant’s statement that he would “tell every-

thing” to Officer Marcella Brown was not a waiver of his

previously exercised right to terminate questioning.

The petitioner herein, the State of Illinois, sought timely

leave to appeal the decision of the Illinois Appellate Court in

the Illinois Supreme Court, but leave was denied.

6

REASON WHY THE WRIT SHOULD BE GRANTED

THE ILLINOIS APPELLATE COURT SUBSTAN-

TIALLY EXPANDED THIS COURT’S REQUIRE-

MENTS FOR ADMISSIBILITY OF A CONFESSION

GIVEN UPON REINTERROGATION OF A DEFEND-

ANT WHO HAS PREVIOUSLY EXERCISED HIS

RIGHT TO TERMINATE QUESTIONING. MORE-

OVER, THE ADDITIONAL FACTORS DEEMED

CONSTITUTIONALLY NECESSARY BY THE IL-

LINOIS APPELLATE COURT ARE NOT NFEDED TO

ADEQUATELY INSURE THAT THE CONFESSION

WAS VOLUNTARY.

The defendant argued on appeal to the Illinois Appel-

late Court that the trial judge erred in denying his motion to

suppress the confession he gave upon being reinterrogated

after exercising his right to terminate questioning because the

confession was not voluntary. To support his argument the

defendant relied upon this Court’s opinions in Miranda v.

Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694

(1966), and Michigan v. Mosley, 423 U.S. 96, 96S. Ct. 321,

46 L. Ed. 2d 313 (1975).

The petitioner herein maintained below that the prohibi-

tion against the questioning of the defendant which arose

because of his request not to answer questions was suffi-

ciently attenuated by the intervening time, circumstances at

the time the confession was made, the intervening Miranda

warnings given to him after his request to remain silent and

before he confessed, and his express waiver of rights.

The Illinois Appellate Court decided that while Michi-

gan v. Mosley is applicable in principle, and does not limit

permissible reinterrogation to an offense other than the one

7

for which the defendant has been taken into custody,’ there

is a factor other than those set forth in Mosley which must be

shown before the reinterrogation is permissible and the

results admissible at a criminal trial of the defendant.

The petitioner maintains that the expansion of this

Court’s dictates in Mosley imposes greater federal con-

stitutional restrictions on reinterrogation, and that this impo-

sition of greater restrictions is impermissible. Oregon v. Hass,

420 US. 714, 719, 95 S. Ct. 1215, 1219, 43 L. Ed. 2d 570

(1975). “It follows that its judgment cannot stand, since a

state court can neither add to nor subtract from the mandates

of the United States Constitution.” North Carolina v. Butler,

441 U.S. 369, 99 S. Ce. 1785, 1759, _.. L. Ed. 2d —

(1979); Oregon v. Hass, supra.

Moreover, the petitioner maintains that the additional

factor required by the Illinois Appellate Court is not neces-

sary to insure the voluntariness of statements given during

reinterrogation after a previous exercise of a right to termi-

nate questioning by a defendant, but even if it were required,

the requirement was fulfilled in the instant case.

That the holding of the Illinois Appellate Court expands

upon the requirements of Mosley is unquestionable.

1The People have no quarrel with the Illinois Appellate

Court’s holding that reinterrogation need not be about an offense

other than the one for which the defendant was taken into custody,

but may concern that same offense. While this Court has not

spoken on this issue, several of the Circuit Courts of Appeal agree

with the Illinois Appellate Court in this regard. United States v.

Finch, 557 F.2d 1234 (8th Cir. 1977); Lindsay v. United States,

542 F.2d 755 (8th Cir. 1976); United States v. Collins, 462 F.2d

792 (2d Cir. 1972), cert. denied, 409 U.S. 9°8, 93 S. Ct. 343, 34 L.

Ed. 2d 254; Wilson v. Henderson, 584 F.2d 1185 (2d Cir. 1978);

United States v. Boyce, 594 F.2d 1246 (9th Cir. 1979); United

States v. Davis, 527 F.2d 1110 (9th Cir. 1975); Williams v. State

of Ohio, 547 F.2d 40 (6th Cir. 1976); United States ex rel. Faye v.

State of New Jersey, 547 F.2d 217 (3d Cir. 1977); United States v.

Smith, 609 F.2d 1011 (4th Cir. 1979).

8

This Court held that the admissibility of statements

obtained after the person in custody has decided to remain

silent de, ends under Miranda on whether his right to cut off

questioning was scrupulously honored. Mosley, at 423 U.S.

104. In Mosley all that was found to be required in

determining that the right to cut off questioning was scrupu-

lously honored was the immediate cessation of interrogation

upon request, the resumption of questioning only after the

passage of a significant period of time, and the provision of a

fresh set of Miranda warnings. Such factors were deemed

sufficient to warrant a conclusion that the subsequent

reinterrogation and any statement made in response thereto

was the product of a voluntary waiver of the previously

expressed right to terminate questioning.

But the Illinois Appellate Court has required that in

addition to the factors set forth in Mosley, there must be, at a

minimum, a showing of record that before the reinterroga-

tion was commenced, the defendant had changed his mind,

and that there was something that had occurred and was

communicated to defendant upon which his change of

position was predicated.

The petitioner maintains that this additional factor is not

required either by Mosley or under general constitutional

guidelines. The exclusionary rule fashioned in Miranda

looks to, and seeks to control, police conduct vis-a-vis the

constitutional rights of the defendant. The focus is not on the

motives of the person interrogated except insofar as it relates

to his knowing and voluntary waiver of a constitutional right.

This Court has deemed sufficient that there be a showing of a

lapse of a significant period of time, together with the

rewarning of the person interrogated regarding his Miranda

rights, in order to show that the police did scrupulously

honor the decision to cut off questioning, and did not refuse

to discontinue the interrogation upon request or persist in

repeated efforts to wear down the person’s resistance to make

him change his mind. Mosley, 423 U.S. at 106-107.

i

9

Nor do the facts of this case warrant a holding that any

more is required to indicate a waiver of the previously

exercised right to cut off questioning than was required in

Mosley. The facts are plain that once the defendant exercised

his right to remain silent after his first polygraph test on the

night he was arrested, all questioning by the police ceased

immediately. Moreover, the defendant was not reinterro-

gated until 10:30 the following morning, 12 hours after he

had exercised his right to cut off questioning. This is in

contrast to the 2-hour period which was deemed sufficient in

Mosley.

In addition, the reinterrogation the following morning

was not in a pressurized atmosphere. The defendant was

read his Miranda nights a second time, and was provided the

guidance and counsel of both his probation officer and his

father.

The defendant’s right to remain silent was scrupulously

honored in the instant case. This is not a case in which the

Peoria police officers made a conscious attempt to wear down

the defendant through repeated and continuous inter-

rogations for the purpose of obtaining a confession. See, e.g.,

United States ex rel. Doss v. Bensinger, 463 F.2d 576 (7th

Cir. 1972), cert. denied, 409 U.S. 932, 93 S. Ct. 239, 34 L.

Ed. 2d 186; United States v. Crisp, 435 F.2d 354 (7th Cir.

1970).

The Peoria police recognized and respected the defend-

ant’s exercise of his right to cut off questioning as evidenced

by the resumption of the interrogation only after a significant

period of time had passed and a new set of warnings was

given. The testimony at the hearing on the motion to

suppress revealed that the defendant acquiesced after being

fully informed of his rights without being subjected to

compulsion or intimidation. The resumption of questioning

was not violative of the principles of Miranda and Mosley.

10

But your petitioner maintains that even if this Court

were to deem necessary the additional factor required by the

Illinois Appellate Court, such factor was satisfied in the

instant case. The record reveals adequate motivation for the

defendant’s decision to waive his previously asserted right to

silence. The counsel of the defendant’s father and his

probation officer, who was his legal guardian, together with

the facts confronting the defendant concerning the number of

discrepancies that existed in the statements he had made to

the police the previous day regarding his activities the day of

the murders, leave little doubt that the defendant’s conscious

and voluntary decision to waive his right to silence and speak

was motivated by his desire to explain the discrepancies and

to remove from himself the onus of guilt of the murders

which was fast descending upon him in the police in-

vestigation, albeit the task was impossible.

Nor can the fact that there was an express as well as

voluntary waiver made by defendant be gainsaid.

The statement of the defendant in the afternoon inter-

rogation session that he would “tell everything” to Officer

Brown was an effective express waiver of his Miranda rights,

including the previously asserted right to remain silent. It

has been recognized that no specific form of an express

waiver is necessary, and a colloquial statement of waiver is

effective. United States v. Boyce, 594 F.2d 1246 (9th Cir.

1979).

In any event, this Court has indicated that an explicit

statement of waiver is not invariably necessary to support a

finding that the defendant has waived the rights guaranteed

him by the Miranda case. See North Carolina v. Butler, 441

U.S. 369, 99 S. Ct. 1755, ___ L. Ed. 2d —__._ (1979).

In this regard, the petitioner believes that the Illinois

Appellate Court is in error in attaching significance to the

fact that the statement expressing a waiver was not made

immediately after the defendant was warned or that the

11

statement he did make immediately after the express waiver

was not inculpatory, but that the statement made after the

polygraph test some hours later was the incriminatory one. It

must be pointed out that defendant had been repeatedly

warned of his rights, and had already decided to make some

statements. It has been held that no rewarning was necessary

where there was an interval of 9 hours between the giving of

the warnings and the incriminatory statement. United States

ex rel. Henne v. Fike, 563 F.2d 809 (7th Cir. 1977).

For this reason the petitioner argues that it is not

significant that a third set of Miranda warnings was not given

to the defendant immediately before he gave the inculpatory

oral statement on the evening after his second polygraph test.

The defendant had not made any indication that he would

refuse to answer the questions propounded to him, or

otherwise exercise his right to remain silent, at any time on

the day that he confessed.

Furthermore, even without the express waiver, the time

interval between the first polygraph test and the exercise of

the right to silence and the beginning of reinterrogation at

10:30 on the following morning can constitute a waiver of the

previously exercised right. White v. Finkbeiner, 611 F.2d

186 (7th Cir. 1979).

Nor can it be said that the length of time over which

these interrogations took place is coercive, so that the totality

of the circumstances make the confession involuntary. Such

a theory contradicts the rationale of Mosley that questioning

can be resumed “only after the passage of a significant

period of time.” Mosley, at 423 U.S. 106.

In fact, no delay between the exercise of a right to

terminate questioning and the attempted reinterrogation has

been held to constitute a type of badgering which will make

a statement obtained thereafter inadmissible. United States

v. Hernandez, 574 F.2d 1362 (Sth Cir. 1978); United States

v. Corral-Martinez, 592 F.2d 263 (Sth Cir. 1979).

12

In White v. Finkbeiner, 611 F.2d 186 (7th Cir. 1979),

the time lapse between the request for counsel and the

reconsideration of that decision was held to be the opposite

of a coercive effect with regard to the subsequent waiver.

Indeed, in the instant case, until 11 o’clock on the night

of the first day of his interrogation, the defendant was not

even the focus of the investiga*‘on, but was merely an

c investigative lead. The defendant spoke freely to the officers

at his school, and went freely to the station house to further

answer questions. Defendant was provided with food and

drink at his request (R. 59) and he was offered a polygraph

test on a voluntary basis, which he voluntarily accepted (R.

68, 155). Furthermore, during this time the defendant was

allowed to use the bathroom unaccompanied, although

department policy is to accompany those under arrest or

those who are suspects. (R. 71) The sum of these facts is

indicative of the fact that the defendant is overstating his

case of the “totality of the circumstances” test. Moreover,

neither the first day of questioning nor the polygraph test had

any bearing on this point since he was not under arrest until

after the end of the first polygraph test. (R. 105-6) At that

point the defendant was not questioned but was taken to the

detention home. (R. 110)

c The only time when the defendant was questioned as a

suspect in the murders in which there was an attempt to

obtain from him an incriminating statement was on the

second day. It is to ve noted that this interrogation began at

10:30 in the morning with the Miranda warnings, in an

interview in which his probation officer and his father were

present. (R. 137-141) The first interview on the 26th lasted

a mere 1% hours. At noon, the defendant was taken to

lunch. It was after lunch that the defendant made the

express waiver of his right to remain silent, saying that he

would tell the whole story, but only to Officer Brown. (R.

<

13

144) This session of questioning was terminated at 5 p.m., at

which time the defendant was taken to his evening meal. (R.

147) The polygraph test on the evening of the day on which

the defendant confessed took place from approximately 7 to

8 p.m. (R. 147) It was after this test that the defendant made

his inculpatoiy statements.

The People submit that under the circumstances as

presented in the record of the hearing on the motion to

suppress it cannot be said that under the “totality of the

circumstances” test the defendant’s confession was other

than voluntary. The defendant was not browbeaten, did not

offer evidence that he was harassed, threatened, or coerced,

was given food and drink at every opportunity, and was not

questioned for extended periods of time without a break. He

never asked to leave before being arrested, never asked to

make a phone call, never asked to have anyone, such as

father or probation officer, present during questioning. (R.

112, 136) Additionally, during the first interview at which

the defendant was interrogated as a suspect, after the

investigation had focused upon him, he had the counsel and

advice of both his probation officer and his father who were

present during that interview. (R. 137)

In a similar situation, the confession made by a 16-year-

old defendant of subnormal intelligence was ruled voluntary

by the Eighth Circuit. The procedures used in questioning

the minor were fair and humane, the periods of questioning

were brief and during reasonable hours, the accused was

allowed to eat regular meals, and other amenities were

present which indicated the lack of coercion in spite of the

duration of time between the initiation of interrogation and

the eventual confession. See Coney v. Wyrick, 532 F.2d 94

(8th Cir. 1976).

7%

7%

14

Thus, insofar as the Illinois Appellate Court has extend-

ed, as a matter of federal constitutional law, the restrictions

upon when a confession is admissible that has been obtained

in a reinterrogation of a defendant after he has exercised his

right to cut off questioning, that court has gone far beyond

the reasons for this Court’s holdings in Miranda and Mosley.

Such an extension would cut this Court’s holdings in Miranda

and Mosley completely loose from their explicitly stated

rationale, Beckwith v. United States, 425 U.S. 341, 345, 96 S.

Ct. 1612, 1615, 48 L. Ed. 2d 1 (1976), and should be

overruled. Moreover, the factor deemed necessary by the

Illinois Appellate Court is not required, but will prove so

detrimental to effective law enforcement, that it should not

be allowed to stand. For such a trend in the law to be

allowed to develop as a matter of federal constitutional

doctrine will hamstring law enforcement officers in the use of

effective and appropriate interrogational procedures iong

proved to be sufficient for protection of the rights of defend-

ants who exercise the right to cut off questioning and later

relinquish that right by knowing and voluntary waiver.

15

CONCLUSION

For the reasons and arguments stated herein, the peti-

tioner respectfully requests that a writ of certiorari issue to

the Appellate Court of Illinois, Third Judicial District, to

review that court’s decision which reversed the defendant’s

conviction herein, ordered his confession suppressed, and

remanded the case for trial at which that confession could

not be used in evidence against the defendant.

Respectfully submitted,

THE STATE OF ILLINOIS, Petitioner

TYRONE C. FAHNER

Attorney General

State of Illinois

MELBOURNE A. NOEL, Jr.

Assistant Attorney General

188 West Randolph, (Suite 2200)

Chicago, Illinois 60601

JOHN X. BRESLIN

Deputy Director

State’s Attorneys Appellate

Service Commission

628 Columbus Street, Suite 402

P. O. Box 654

Ottawa, Illinois 61350

(815)434-7010

Counsel for Petitioner

MICHAEL M. MIHM

State’s Attorney

Peoria County

Peoria, Illinois 61602

Of Counsel

APPENDIX A

.

’>

la

82 Ill.App.3d 767 People v. Savory 767

THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-

Appellee, v.

JOHNNY LEE SAVORY, Defendant-Appellant.

Third District No. 77-420

Reversed and remanded.

Opinion filed April 4, 1980.

1. CRIMINAL PROCEDURE (§ 331.10)—State has

burden of proving voluntary waiver of rights—murder. It is

burden of State to show that accused knowingly and volun-

tarily waived his rights of representation and to remain silent

before accused’s statement can be admitted into evidence.

2. CRIMINAL PROCEDURE (§ 331.10)—valid relin-

quishment of rights will not be presumed from silence.

3. CRIMINAL PROCEDURE (§ 331.35 )—ano particu-

lar form is required for waiver of Miranda rights. Although

Miranda requires warnings and waiver of constitutional

rights, no particular form of waiver is required, and waiver

may be either express or implied, but waiver will not be

implied either from silent record or from fact accused may

have made statements.

4. CRIMINAL PROCEDURE (§331.35)—defendant’s

statement that he would “‘tell everything” would not be consid-

ered waiver of Miranda rights. Accused’s statement that he

would “tell everything”, made at least three hours after

warnings were given and questioning commenced, could not

be considered knowing and voluntary waiver of accused’s

rights.

2a

5. CRIMINAL PROCEDURE (§ 331.35)—what nec-

essary to establish waiver of rights after right to silence has

been exercised. Where person in custody was advised of his

Miranda rights and exercised his right to remain silent,

record should show at minimum that before reinterrogation

was commenced such person had changed his mind, and that

there was some reason for change of mind before resumption

of questioning can be deemed voluntary.

6. CRIMINAL PROCEDURE (§ 331.15)—circum-

stances did not justify reinterrogation after defendant had

exercised right to silence. Where lapse of time was principal

circumstance relied upon to support reinterrogation of person

in custody after such nerson had been advised of his Miranda

rights and had exercised right to remain silent, and where

prosecution conceded record failed to disclose waiver of

constitutional rights at time they were readministered to such

person, court failed to see how reinterrogation could be

approved.

7. CRIMINAL PROCEDURE (§ 332)—test of volun-

tariness of statement. Test to be applied in determining

voluntariness of statement is whether it has been made

freely, voluntarily and without compulsion or inducement of

any sort or whether defendant’s will was overcome at time he

confessed.

BARRY, J., dissenting.

APPEAL from the Circuit Court of Peoria County; the

Hon. STEPHEN COVEY, Judge, presiding.

Robert Agostinelli and Theodore A. Gottfried, both of

State Appellate, Defender’s Office, of Ottawa, and Michael

Margolies, law student, for appellant.

Michael M. Mihm, State’s Attorney, of Peoria (John X.

Breslin, of State’s Attorneys Appellate Service Commission,

of counsel), for the People.

» a

3a

Mr. PRESIDING JUSTICE STOUDER delivered the

opinion of the court:

After a jury trial in the circuit court of Peoria County,

Johnny Lee Savory was found guilty of the murders of

Connie Cooper and James Robinson, Jr. He was sentenced to

concurrent terms of imprisonment of 50 to 100 years for each

offense. On this appeal the defendant argues the court erred

in denying his motion to suppress his confession because,

first, there is no showing that he knowingly and voluntarily

waived his constitutional rights; second, his right to refrain

from responding to further questioning after he had in-

dicated such an intention was not scrupulously observed; and

third, his confession was not voluntary, considering the

evidence as a whole. Defendant also contends the sentences

imposed were excessive.

The defendant, Johnny Lee Savory, was 14 years old at

the time these charges were brought. After a hearing it was

decided the defendant should be prosecuted as an adult. The

evidence at trial centered around the defendant’s confession.

The events and circumstances which preceded his oral

confession and which were presented at the hearing on the

defendant’s motion to suppress his confession need to be

summarized.

The bodies of the two victims were discovered on

January 18, 1977, by the victims’ stepfather, William

Douglas, in the bedroom of their residence. Both had

sustained multiple stab wounds. The police were notified,

and this set into motion a large scale investigation. Many

witnesses and suspects were interviewed and several were

given lie detector tests.

Johnny Lee Savory, the 14-year-old defendant, was

questioned by police officers beginning at 3:30 p.m. on

January 25, 1977, in regard to the deaths of Connie Cooper

and James Robinson. This interrogation began at the Late

4a

Afternoon School where the defendant was a student. At the

outset of the interrogation, the defendant stated he did not

want to talk. However, the police convinced him to talk.

The defendant was not given any Miranda warnings at that

time. At that time, the defendant gave police an account of

his activities of the day prior to the murders.

The defendant related that on the day prior to the

murders, he met James Robinson, Jr., at the Late Afternoon

School at approximately 3:30. The pair left together at 6:30

p.m. and arrived at the Robinson residence at 7. Savory

stated that Robinson took the keys from the mailbox and

opened the front door to the house where they prepared

some food. Savory told the police that he had taken hot dogs

out of the refrigerator and some corn and prepared it in a

skillet. After finishing their meal, the pair placed the

television on the floor and practiced Kung Fu. At approxi-

mately 8 p.m., the pair went to the residence of a Miss Jones,

who lent defendant $4. Defendant gave half the money to

Robinson and they went to a restaurant and ate. After

chasing home a young man who had called them a dirty

name, the two returned to the Robinson residence. The pair

again practiced Kung Fu, and at 11 p.m., defendant walked

home. Defendant further told the police that he called

Robinson on the phone that night and spoke until about 1:30

or 2 in the morning. The defendant said that Robinson

asked defendant to return at 8, although the defendant did

not do so.

At about 4 p.m., the officers asked the defendant to

return with them to the police station and defendant agreed

to do so. On the way to the station, defendant suggested they

stop at his father’s house so he could show them a knife that

was similar to one owned by the victim, James Robinson,

and the officers did so. Defendant went into the house alone

and returned without ihe knife saying that his father had the

knife with him and was receiving medical attention at St.

Mark’s.

Sa

At 5 p.m., defendant was brought into an interrogation

room at the police station and repeated his previous story

before four officers. This session lasted about one-half hour.

Later that evening, the defendant was again ‘nterrogated,

this time with specific emphasis concerning ceitain factual

discrepancies between some of the known facts and defend-

ant’s earlier statement. Specifically, defendant had stated

that he was very close friends with Robinson and had in fact

known both him and Cooper for many years. This, however,

conflicted with other information known by the police.

There also were discrepancies concerning who prepared the

food that defendant and Robinson ate at the Robinson

residence as well as the fact that the police had information

defendant had not spoken to Robinson on the phone late in

the evening prior to the murders. This session lasted one-

half hour to 45 minutes.

Although he had made no incriminatory statements up

to this point in time, defendant was taken to a polygraph

examiner at 10 p.m. The defendant was accompanied by

two police officers and his probation officer. The defendant

was alone with the polygraph examiner for about an

hour—until 11 p.m. At the end of the polygraph exam-

ination, the results of which were made known to Officer

Cannon, the defendant was placed under arrest and read his

Miranda rights. The defendant, in response, stated that he

did not want to talk. At about 11 p.m., defendant was

returned to the police station and later taken to the detention

home for the night.

The following morning, January 26, 1977, defendant

was reinterrogated. The reinterrogation began at approxi-

mately 10:30 a.m. at the police station with Percy Baker and

Y. T. Savory, defendant’s father, present. Officer Haynes,

who did not testify at the suppression hearing, read defend-

ant his Miranda rights. During the ensuing interrogation,

defendant was confronted with several discrepancies at

7%

6a

which time defendant would change his story. However,

defendant still denied committing the murders. This session

ended around noon, whereupon defendant was fed.

At 12:30 p.m. defendant was again interrogated in a

short session. At that time, defendant stated he would tell

everything to Officer Brown. Officer Brown then began a

session with the defendant that lasted until 5 p.m. Although

defendant gave a detailed statement of his activities, he stil!

made no incriminatory statements. At the close of this

session, defendant was forced to change clothes.

At approximately 6 p.m. defendant again took a poly-

graph examination. This session, with just the defendant and

the examiner present, lasted about an hour and a half. At

the end of the examination, Officer Brown entered the

examination room and the defendant then made in-

criminating statements. Defendant indicated to Officer

Brown the location of some of the stab wounds. Defendant

told Brown that he and Robinson were practicing Kung Fu

and that Robinson wanted defendant to use the knife.

Defendant stated that he accidentally stuck Robinson. De-

fendant said his mind went blank, and when Cooper came

into the room, she came at him and he cut her.

Defendant then returned to the police station where he

denied any involvement to Percy Baker, his probation offi-

cer. Officer Brown told the defendant that this was

“backtracking” and began to question defendant for details

of the murders.

Defendant filed a written motion to suppress the con-

fession which was denied after a full hearing. The confession

and earlier statements were heard as evidence at trial.

The rest of the State’s evidence consisted primarily of a

discussion of various pieces of physical evidence that was

obtained at the Robinson-Cooper residence. The physical

i

7%

"ey

7a

evidence related to the nature of the victims’ wounds, the

physical setup of their home and did tend to show defendant

had at some time been at the Robinson-Cooper residence.

No eyewitnesses testified at trial.

In arguing the trial court erred in declining to suppress

his confession the defendant urges the confession was not

voluntary and refers to three areas which he contends

support this conclusion. These areas include the failure of

the defendant to waive his Miranda rights, his reinterroga-

tion after he had declined to talk and finally, the length of

the custodial interrogation. Although we will consider these

areas separately, they are nevertheless interrelated and it is

the combined effect of each which justifies our conclusion

that defendant’s confession should have been suppressed.

In arguing the court erred in refusing to suppress his

confession the defendant first urges the evidence is in-

sufficient to show his knowing and voluntary waiver of his

Miranda rights.

e 1, 2 It is well settled since Miranda v. Arizona (1966), 384

U.S. 436, 16 L.Ed.2d 694, 86S. Ct. 1602, that it is the burden

of the State to show that a person knowingly and voluntarily

waived his rights of representation and to remain silent

before a defendant’s statement can be admitted into evi-

dence. It is also true that a valid relinquishment of one’s

rights will not be presumed from silence.

As shown by the testimony presented at the hearing on

the defendant’s motion to suppress his confession, following

conversations with police officers in the late afternoon and

evening of January 25 the defendant took a polygraph test at

about !0 p.m. Because of discrepancies revealed by this test

police officer Cannon testified that he placed the defendant

under arrest and advised him of his Miranda rights. The

defendant responded that he did not want to say anything

more. Defendant was not questioned any further at this

juncture and was thereafter lodged in the Peoria juvenile

facility for the night. It is conceded by the parties that

-"

8a

defendant had not waived or relinquished his right to remain

silent but on the contrary had affirmatively expressed his

right to remain silent.

On the following morning, Ja*1ry 26, the defendant

was taken from the juvenile facility to the police station at

about 10’clock in the morning. The defendant was again

admonished of his Miranda rights, this time by police officer

Haynes. At the time of the suppression hearing Haynes was

suffering the effects of a broken jaw, and he did not testify at

that hearing nor at the trial. At the suppression hearing

police officer Fires testified that he heard Haynes advise the

defendant of his Miranda rights and heard the defendant

respond that he understood his rights. Fires also testified

that even after the defendant indicated his understanding of

his rights Haynes continued to discuss some point about his

rights with the defendant but Fires could not recall the

subject of the further discussion. Then, according to Fires,

Haynes commenced questioning the defendant, the inter-

rogation continuing until noon. During this period the

defendant’s father and Percy Baker were present. Also,

during this period the defendant made no inculpatory state-

ments.

After being advised of his rights the defendant did not

sign any written waiver, although it does not appear that he

was requested to do so and refused. Nor does the record

reveal an explicit oral waiver of his rights in the specific terms

which are usually a part of a written waiver. The record

indicates that he was merely advised of his rights and

questioning commenced.

3 Although Miranda requires warnings and waiver of

constitutional rights no particular form of waiver is required.

The waiver may be either express or implied. United States

v. Hayes (4th Cir. 1967), 385 F.2d 375, and Bond v. United

States (10th Cir. 1968), 397 F.2d 162. This rule was held to

be an established application of the Miranda rule in the

recent case of North Carolina v. Butler (1979), __—. US.

9a

___, 60 L. Ed.2d 286, 99 S. Ct. ____ However, according to

Miranda, waiver will not be implied either from a silent

record or from the fact the defendant may have made

statements. In People v. Landgham (1970), 122 Ill.App. 2d

9, 257 N.E.2d 484, where the facts were quite similar to those

in the instant case, the record showed defendant was advised

of his Miranda rights, but other than making an oral

statement the record was silent concerning any evidence from

which waiver could be inferred. In that case the court held

the oral statements should have been suppressed.

e4 In its brief the prosecution concedes that at the time

defendant was advised of his Miranda rights at about 10:30

on the morning of January 26, there is no evidence in the

record warranting any inference the defendant waived his

rights. So far as the record is concerned no questions were

asked of the witness, as was the case in Landgham, about

anything the defendant did or said indicating his waiver of

his rights. The only evidence called to our attention by the

prosecution is the defendant’s statement made at about 1:30

in the afternoon that he would “tell everything.” We are

unable to see how this phrase made at least three hours after

warnings were given and questioning commenced can be

considered a knowing and voluntary waiver of the defend-

ant’s rights. In this connection no cases have been called to

our attention by the prosecution supporting the conclusion

urged by the prosecution.

e5 Next the defendant contends the reinterrogation which

commenced on the morning of July 26, after he had ex-

pressed his desire the previous night of not wanting to talk

about the homicides, also violated the dictates of Miranda.

Both parties have relied on Michigan v. Mosley (1975), 423

US. 96, 46 L. Ed. 2d 313, 96 S. Ct. 321, in opposition and in

support of the principle of custodial reinterrogation. The

prosecution argues that under Mosley custodial reinterroga-

tion is permissible and not per se foreclosed by Miranda.

The prosecution also contends that custodial reinterrogation

10a

is not limited to questioning concerning other crimes by other

police officers as was the factual setting in Mosley. We are

inclined to agree with the prosecution that the principle of

Mosley is not limited to its facts, but does suggest that the

right of a defendant to remain silent may be scrupulously

observed as required by Miranda and still permit reinterro-

gation where the compulsion and coercion of custody have

been dissipated or attenuated by subsequent circumstances.

This would of course include initiation of the questioning by

the defendant (People v. Morgan (1977), 67 Ill. 2d 1, 364

N.E.2d 56) and reinitiation of questioning about other

offenses by the same police officers after a substantial lapse

of time as in People v. White (1975), 61 Ill. 2d 288, 335

N.E.2d 457, cert. denied (1976), 424 U.S. 970, 47 L. Ed. 2d

738, 96 S. Ct. 1469, decided prior to Michigan v. Mosley

(1975), 423 U.S. 96, 46 L. Ed. 2d 313, 96 S. Ct. 321.

Circumstances which might dissipate or attenuate the

inherent compulsion of a custodial setting would include at

least the lapse of a significant amount of time together with

the occurrence of some event communicated to the defendant

which might indicate the reasonableness of the reconsidera-

tion of his position. If facts justifying reconsideration are

relied upon it should be the burden of the prosecution to

show that something had occurred and was communicated to

the defendant upon which his change of position was predi-

cated. This burden is not satisfied merely by the lapse of

time and giving Miranda warnings again together with the

defendant’s waiver thereof. Where the defendant, as in the

instant case, has exercised his right to remain silent, the

record should show at the minimum that before reinterroga-

tion was commenced, the defendant had changed his mind,

and that there was some reason for his change of mind

before the resumption of questioning could be deemed

voluntary.

° 6 In the instant case at the initiation of the police officers

the defendant was taken from the detention facilities to the

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°*s

lla

interrogation rooms at the police station and reinterrogation

was commenced with the giving of Miranda warnings by an

officer who was aware of the defendant’s exercise of his right

to remain silent the night before, but withoui any reference

of defendant’s prior exercise of his right. Although defend-

ant’s father was present on the morning of January 26, there

is no indication in the record that the father’s presence was

the reason for reinitiating the interrogation by the police

Officers either before the defendant was brought to the

interrogation room or afterward. It should also be noted that

when custodial reinterrogation was commenced in the morn-

ing the defendant had been questioned more or less contin-

uously from about 3 o’clock of the afternoon of the previous

day until about 11 o’clock at night when he was arrested and

then detained. It should also be recognized that the defend-

ant was only 14 years old and already on probation. Where,

as in this case, the principal circumstance relied upon to

support reinterrogation is the lapse of time and where the

prosecution concedes the record fails to disclose a waiver of

constitutional rights at the time they were readministered to

the defendant, we fail to see how reinterrogation can be

approved. Indeed where the lapse of time relates to the

incarceration of a 14-year-old boy in a detention facility, it is

difficult to avoid the conclusion that such consideration was

affecting the defendant’s conduct.

¢7 Finally, when the previously described circumstances

are combined with the length of time defendant was ques-

tioned, additional support is afforded for the general con-

clusion the defendant’s statements were not proved to be

voluntary. The test to be applied in determining the

voluntariness of a statement is whether it has been made

freely, voluntarily and without compulsion or inducement of

any sort or whether the defendant’s will was overcome at the

time he confessed. ( People v. Prim (1972), 53 Ill. 2d 62, 289

N.E.2d 601, cert. denied (1973), 412 U.S. 918, 37 L. Ed. 2d

144, 93 S. Ct. 2731.) See Haley v. Ohio (1948), 332 U.S. 596,

7%

12a

92 L. Ed. 224, 68 S. Ct. 302, and People v. Simmons (1975),

60 Ill. 2d 173, 326 N.E.2d 383, where the courts indicated

special care should be given in scrutinizing the record to

determine voluntariness where the defendant was a juvenile.

At the hearing on the suppr’ sion motion the trial court was

specially concerned with t _eriod of from 3 o’clock in the

afternoon until 11 that ht and in particular whether

defendant was under arrest during this period and whether

the questioning should have been considered custodial inter-

rogation. As a result of the hearing the trial court was

satisfied defendant was not in custody prior to his arrest at 11

p.m. because, according to the testimony of the police

officers, the defendant was not a suspect during this period of

time and in fact other persons had been given polygraph tests

without being arrested or charged. Nevertheless, we do have

a period of approximately eight hours, interrupted by a meal,

of questioning on January 25 and then an additional period

of questioning, interrupted by meals, commencing at about

10:30 in the morning of January 26 and continuing until

about 8 p.m. when the inculpatory statements were made.

We also observe that thereafter the defendant did not

reaffirm his inculpatory statements but in fact recanted them

shortly after they were made. Without deciding that the

length of questioning would of itself justify suppression of the

statements as not voluntary, we do believe the cumulative

effect of all of the circumstances does compel the conclusion

the prosecution did not sustain its burden of establishing the

voluntariness of the statements. We believe the error in

admitting the statements requires a new trial because we can

not say beyond a reasonable doubt that it did not contribute

to the verdict of the jury under the authority of Chapman v.

California (1967), 386 U.S. 18, 17 L. Ed. 2d 705, 87 S. Ct.

824.

For the foregoing reasons the judgment of the Circuit

Court of Peoria County is reversed and this cause is re-

manded for a new trial consistent with the views expressed

herein.

13a

Reversed and remanded.

SCOTT, J., concurs.

Mr. JUSTICE BARRY, dissenting:

I must dissent from the opinion of the majority because,

for the reasons I am about to state, I firmly believe that the

defendant’s motion to suppress his confession was properly

denied.

The majority’s opinion hinges upon the finding that the

defendant’s right to remain silent, exercised after his arrest

the evening of January 25, was violated by the subsequent

interrogation by the Peoria police the next morning. In

Michigan v. Mosley (1975), 423 U.S. 98, 46 L. Ed. 2d 313,

96 S. Ct. 321, the United States Supreme Court concluded

that “the admissibility of statements obtained after the

person in custody had decided to remain silent depends

under Miranda on whether his ‘right to cut off questioning’

was ‘scrupulously honored.’ ” (423 U.S. 96, 104, 46 L. Ed.

2d 313, 321, 96 S. Ct. 321, 326.) The Supreme Court found

that the defendant’s right to remain silent was scrupulously

honored under circumstances where there was a significant

lapse of time between the defendant's assertion of his right

not to talk and the reinterrogation (2 hours), the defendant

was read his Miranda rights prior to the reinterrogation, ar 4

the reinterrogation concerned an offense different from the

one for which the defendant was taken into custody.

Although in the instant case the reinterrogation of defendant

Savory the morning after he asserted his right to remain

silent involved the same offense for which he was arrested,

this fact alone does not necessitate a finding that the

defendant’s right to remain silent was. not scrupulously

honored. As the majority admits, the principle of Mosley is

not limited to its facts. Indeed, this court has recently stated

that the fact the second interrogation involved a completely

different subject matter is only an “additional circumstance”

which tends to demonstrate that the defendant’s right to

l4a

remain silent scrupulously honored (People v. Faison

(1979), 78 Ill. App. 3d 911, 397 N.E.2d 1233). However, it

is essential that the record reflect, at the very least, a

complete cessation of questioning for a significant period of

time after the defendant indicates he wishes to remain silent

coupled with the giving of a complete set of Miranda

warnings prior to the initiation of reinterrogation. Faison.

In the case at bar, once the defendant exercised his right

to remain silent, all questioning by the police ceased. The

defendant was not reinterrogated until 10:30 the next morn-

ing (with his father and legal guardian present) and after he

was read his Miranda rights a second time. Under a similar

factual situation, the Second District, in People v. Eason

(1976), 44 Ill. App. 3d 308, 357 N.E.2d 1191, held that the

defendant’s right to remain silent was scrupulously honored,

and a statement made as a result of the reinterrogation

admissible. In Eason, the defendant was arrested for armed

robbery and taken to the police station. After receiving his

Miranda rights, signing a waiver form, and participating in a

lineup, he refused to answer any more questions. Accord-

ingly, the interrogation ceased and he was placed in his cell.

The next morning, after being read his Miranda rights a

second time, he refused to offer any information about the

robbery. In response, one of the officers stated, “Well, you

probably wouldn’t say anything if you could walk out of here

scot-free.” The defendant then said “that would be a differ-

ent story,” and when asked what he meant by that statement,

made the statements which were the subject of his later

motion to suppress. The defendant contended that this

second interrogation was violative of Miranda and Mosley.

The Second District, however, disagreed:

“In the instant case the police discontinued their

initial interrogation when the defendant refused to

answer questions. A significant period of time passed

before the detectives again advised him of his rights

and, although they were still investigating the same

crime, the defendant voluntarily agreed to talk with

them.

lSa

We hold that the statements in the instant case were

not obtained in violation of Miranda and that the

defendant voluntarily made those statements after being

afforded the protection outlined in Michigan v. Mosley.”

(44 Ill. App. 3d 308, 314, 357 N.E.2d 1191, 1195.)

Just as the defendant’s right to remain silent was scrupu-

lously honored in Eason, defendant Savory’s right to remain

silent was scrupulously honored in the instant case. This is

not a case in which the Peoria police officers, by questioning

the defendant with regard to the discrepancies in the stories

he had told the previous day, after a complete cessation of

questioning for almost 12 hours and the giving of a fresh set

of Miranda warnings, made a conscious attempt to wear

down the defendant through repeated and continuous inter-

rogations for the purpose of obtaining a confession. (See

e.g., United States ex rel. Doss v. Bensinger (7th Cir. 1972),

463 F.2d 576, cert. denied (1972), USS. Ae

L.Ed. 2d ___, 93 S. Ct. 239; United States v. Crisp (7th Cir.

1970), 435 F.2d 354; People v. Gibson (1977), 55 Ill. App.

3d 929, 371 N.E.2d 341.) The Peoria police recognized and

respected the defendant’s exercise of his right to remain silent

as evidenced by the resumption of interrogation only after a

significant period of time had passed and new warnings were

given. The testimony at the hearing on the motion to

suppress reveals that the defendant “acquiesced without

being subjected to compulsion or intimidation after being

fully informed of his rights.” ( People v. Pittman (1973), 55

Ill. 2d 39, 56, 302 N.E.2d 7, 15-16.) The resumption of

questioning was not violative of the principles of Miranda

and Mosley.

The majority takes the position that even though a

reinterrogation following a defendant’s exercise of his right

to remain silent may be preceded by a significant time

interval and a second set of Miranda warnings, a statement

l6a

subsequently made by the defendant is automatically ren-

dered inadmissible unless the State proves in addition that

some event was communicated to the defendant which

would “indicate the reasonableness of the reconsideration of

his position.” The placing of this added burden upon the

State is not mandated by Miranda, Mosley, or the con-

stitution, nor in my view is it required. The right of a

criminal defendant to remain silent is amply protected by

examination of police conduct in light of Mosley. If the

record reflects a failure on the part of law enforcement

authorities to appreciate and honor a defendant’s desire to

terminate questioning through the exercise of his con-

stitutional rights, the exclusionary rule operates to prevent

any statements obtained as a result of the resumption of

interrogation from being admitted into evidence regardless

of the defendant’s motivation for speaking. Likewise, if the

dictates of Mosley are followed, and the defendant’s right to

remain silent is scrupulously honored, the reason why the

defendant speaks pursuant to a subsequent interrogation is,

for Mosley purposes, irrelevant. What is under scrutiny in

both Mosley and Miranda is police conduct and procedure,

not the reasoning behind the defendant’s decision to speak.

The majority’s decision to impose upon the State the added

burden of showing the defendant’s motivation to make a

statement does not aid in the elimination of overt attempts by

law enforcement authorities to elicit confessions from sus-

pects through ceaseless interrogation once the police are

informed that questioning is to be terminated, which is the

aim of Mosley and Miranda.

Assuming arguendo that the State has the added burden

of showing that there was communicated to the defendant

some event “which might indicate the reasonableness of the

reconsideration of his position,” I believe this burden has

been met in the instant case. The record reveals adequate

motivation for the defendant’s decision to waive his pre-

17a

viously asserted right to silence. Present with the defendant

when the reinterrogation commenced on the morning of

January 26 were his father and Percy Baker, his legal

guardian. At the outset, the defendant was confronted with a

number of discrepancies that existed in the statements he had

made to the police the previous day regarding his activities

the day of the murders. There can be little doubt that

defendant Savory’s conscious and voluntary decision to

waive his right to silence and speak was motivated at least in

part by a desire to explain away the discrepancies in the

presence of his father and guardian. (Cf. People v. Perez

(1979), 72 Ill. App. 3d 790, 391 N.E.2d 456 (defendant

decides to speak after being confronted with victim’s ring). )

In light of the circumstances, the defendant’s decision to

speak was reasonable, and I believe satisfies the requirement

of the majority, if it be necessary, regarding the burden

placed upon the State beyond that imposed by Mosley.

Even if the defendant’s right to remain silent was

violated by the resumption of questioning the morning

following his arrest, I believe that the defendant’s confession,

given much later in the day, was nevertheless admissible.

The failure of the police to honor a defendant’s right to

remain silent constitutes a violation of the procedural

safeguards mandated by Miranda. (See People v. Gibson

(1977), 55 Ill. App. 3d 929, 371 N.E.2d 341.) However, the

Illinois Supreme Court has held that the effect of such

procedural Miranda violation may be neutralized by

subsequent events so as to make a confession obtained after

the violation admissible. ( People v. White (1975), 61 Ill. 2d

288, 335 N.E.2d 457.) In White, the supreme court was

faced with a procedural Miranda violation in the form of a

failure to furnish the defendant with counsel after representa-

tion was requested. The court found that “the effect of the

procedural violation of the Miranda standards was suffi-

ciently dissipated by lapse of time, repeated admonitions and

18a

other intervening events so that the defendant’s confession

was voluntary and was therefore properly received in evi-

dence.” (61 Ill. 2d 288, 297, 335 N.E.2d 457.) Applying the

factors found to be important in White to the case at bar, it

appears that the effect of the Miranda violation (if there was

one at all) was sufficiently attenuated, and the confession

therefore properly obtained. The alleged Miranda violation

occurred at approximately 10:30 a.m. on January 26 when

reinterrogation commenced. No confession, however, was

obtained until 7:30 that evening. During the time between

the resumption of interrogation and the eventual confession,

the defendant ate two meals, was allowed to speak at length

with Officer Marcella Brown after requesting an opportunity

to speak with her privately (and after stating that he “would

tell everything”), changed his clothes and voluntarily took a

second polygraph examination. It is true that repeated

Miranda admonitions were not given during the day, but “‘it

is not necessary to repeat the warnings at the beginning of

each successive interview to avoid a Miranda violation.”

(People v. Bundy (1979), 79 Ill. App. 3d 127, 133, 398

N.E.2d 345, 349.) The lapse of time from the com-

mencement of reinterrogation to the subsequent confession,

coupled with the circumstances and the events during the

day, attenuated any deleterious effect of the initial Miranda

violation. For this alternative reason the confession was

properly received into evidence.

The majority concludes by stating that all of the facts in

this case support the “general conclusion” that the defend-

ant’s statement was involuntary. In People v. Ybarra (1977),

46 Ill. App. 3d 1049, 1050, 361 N.E.2d 678, 679, the court

stated:

“‘Whether a statement is voluntarily given depends

upon the totality of the circumstances. The test is

whether it has been made freely, voluntarily and with-

out compulsion or inducement of any sort, or whether

the defendant’s will was overcome at the time he

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confessed. In making its decision, the trial court need

not be convinced beyond a reasonable doubt, and the

trial court’s finding that the statement was voluntary will

not be disturbed unless it is contrary to the manifest

weight of the evidence. (People v. Prim (1972), 53 Ill.

2d 62, 289 N.E.2d 601 cert. denied, 412 U.S. 918.)”

(Accord, People v. Pittman (1973), 55 Ill. 2d 39, 302 N.E.2d

7; People v. Boerckel (1979), 68 Ill. App. 3d 103, 385 N.E.2d

815.) It cannot be denied that in this case the defendant was

in custody for over 24 hours before he confessed to the

murders of James Robinson and Connie Cooper (although

until approximately |1 p.m. on the 25th he was not a suspect,

and there is no evidence that he would have been restrained

had he attempted to leave the police station prior to that

time ), and there is no doubt that courts are to be particularly

mindful of interrogations involving juveniles. (Haley v. Ohio

(1948), 332 U.S. 596, 92 L. Ed. 224, 68 S. Ct. 302; People v.

Simmons (1978), 60 Ill. 2d 173, 326 N.E.2d 383; People v.

Stone (1978), 61 Ill. App. 3d 654, 378 N.E.2d 263.)

However, the circumstances surrounding this confession com-

pel a finding of voluntariness. When the questioning of the

defendant resumed on the morning of January 26 after a

complete cessation for almost 12 hours, the defendant was

not told by the police to confess to the murders. He was,

rather, merely confronted with the discrepancies in his

previous statements, and asked to explain them. Shortly

before noon, the defendant’s father, who ‘had been present,

told the defendant to tell the truth. At noon, the defendant

ate lunch by himself, and approximately 35 minutes later

told two police officers and his guardian Baker that he would

“tell everything” but only to Officer Marcella Brown. At this

time Officer Brown and the defendant met privately in the

Office of the juvenile bureau lieutenant, and, according to

Officer Brown, the first thing the defendant told her was “to

get a piece of paper and a pencil and write down everything

he told me having to do with this incident.” The defendant

v¥

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then described, in narrative form, his activities on the day of

the murders, insisting that Officer Brown write down every-

thing. When the defendant was finished, Officer Brown

asked the defendant’s legal guardian, Baker, to come into the

Office. It was readily apparent that the statements the

defendant had previously given to Baker were inconsistent

with the statement he had just given to Brown and con-

sequently both Brown and Baker asked the defendant to

explain the discrepancies. About 45 minutes later they were

joined by Officer Fires. At 4:30, the questioning ceased, and

the defendant had dinner. After dinner, the defendant

changed his clothes and at approximately 6 arrived at the

Office of the polygraph examiner with Officers Brown and

Fires and Mr. Baker. No police officers were present when

the defendant took the examination. At approximately 7:30

the polygraph examination ended and, Officer Brown testi-

fied, the following occurred:

“A. I entered the polygraph room where Johnny

Savory was seated in a chair and had a conversation

with him. |

Q. Did he indicate a willingness to talk with you at

that time?

A. Yes, he did. I asked him what he wanted to talk

to me about and he had requested to talk to me and he

then gave me a narrative of his involvement in the

murders in this case and admitted that he had killed

Connie Cooper and James Robinson.

Q. Who was present at that time?

A. Just myself and Johnny Savory.”

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At no time prior to his confession was the defendant told

to confess to the murders of James Robinson and Connie

Cooper. The police officers instead focused their questioning

of the defendant on the discrepancies in his story. The

defendant never told the police to cease the questioning. In

addition, he agreed to take the polygraph examination on the

evening of the 26th, and when he eventually did confess, did

so voluntarily and to the police officer whom he apparently

trusted the most and with whom he felt the most comfort-

able. This is not a case where police compulsion caused a

defendant’s will to be overcome. The defendant here, who

was street-wise and not naive with regard to the procedures

of the police department, simply realized that he had been

caught in a web of his own making and had no recourse but

to admit the killings. I believe the confession was voluntary,

and would affirm the defendant’s convictions.

APPENDIX B

lb

ILLINOIS SUPREME COURT

CLELL L. WOODS, CLERK

SUPREME COURT BUILDING

SPRINGFIELD, ILL. 62706

(217) 782-2035

September 29, 1980

State’s Attorneys Appellate

Service Commission

Third Judicial District

P. O. Box 654

Ottawa, Illinois 61350

No. 53459 —People State of Illinois, petitioner, vs. John-

ny Lee Savory, respondent. Leave to ap-

peal, Appellate Court, Third District.

The Supreme Court today denied the petition for leave

to appeal in the above entitled cause.

Very truly yours,

Clerk of the Supreme Court