Opposition — Illinois v. Savory

RECEIVED

OEC 12 1980

OFFICE OF THE CLERK

NO. 80-872 SUPREME COURT, U.S.

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IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1980

THE STATE OF ILLINOIS,

Petitioner,

vs.

JOHNNY LEE SAVORY,

P Respondent.

MOTION TO PROCEED IN FORMA PAUPERIS

Respondent, Johnny Lee Savory, by his attorneys, Robert

Agostinelli and Theodore A. Gottfried, Office of the State Appellate

Defender, move this Court for leave to proceed in forma pauperis pursuant

to United States Supreme Court Rule 53.

In support of this motion, an affidavit is attached.

Respectfully submitted,

ROBERT AGOSTINELLI

THEODORE A. GOTTFRIED

Office of the State Appellate Defender

300 East Monroe, Suite 100

Springfield, Il. 62701

217/782-7203

|v COUNSEL FOR RESPONDENT

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NO. 80-872

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1980

THE STATE OF ILLINOIS,

Petitioner,

JOHNNY LEE SAVORY,

Respondent.

AFFIDAVIT

I, JOHNNY LEE SAVORY, being first sworn according to law,

depose and say:

1. I am the Respondent in the above entitled cause;

2. My poverty renders me unable to pay the costs to

proceed in this Court;

3. I am unable to give security for the same.

4. I have proceeded as an indigent person in all proceedings

below. )

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onnny Lee Savory rl A, 9S

Subscribed and sworn tq before Respondent

- this 4" day of ,

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NO. 80-872

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1980

THE STATE OF ILLINOIS,

Petitioner,

JOHNNY LEE SAVORY,

Respondent.

TO

NOTICE

Tyrone C. Fahner

Attorney General

State of Illinois

188 W. Randolph, Suite 2200

Chicago, Il. 60601

John X. Breslin

Deputy Director

State's Attorneys Appellate

Service Commission

628 Columbus, Ste. 402

P. O. Box 654

Ottawa, Il. 61350

Melbourne A. Noel, Jr.

Assistant Attorney General

State of Illinois

188 W. Randolph, Ste. 2200

Chicago, Il. 60601

Mr. Michael M. Mihm

State's Attorney

Peoria County

Peoria, Il. 61602

PLEASE TAKE NOTICE that on December 9th, 1980, I have

mailed to the Clerk of the Supreme Court of the United States

a copy of the attached Response in Opposition to Petition for

Writ of Certiorari, and I am serving each of you with a copy

by mail in envelopes with sufficient prepaid postage in the mail

in Springfield, Illinois and addressed as indicated above on the

9th day of December, 1980.

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A. D

State Appellate Defender

Counsel for Respondent.

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RECEIVED

NO. 80-872 DEC 12 1980

OFFICE OF THE CLERK

SUPREME COURT, U.S,

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1980

THE STATE OF ILLINOIS,

Petitioner,

JOHNNY LEE SAVORY,

Respondent.

ON PETITION FOR WRIT OF CERTIORARI TO THE

APPELLATE COURT OF ILLINOIS, THIRD DISTRICT.

RESPONSE IN OPPOSITION TO PETITION FOR WRIT OF CERTIORARI

ROBERT AGOSTINELLI

Office of the State Appellate Defender

628 Columbus

Ottawa, Il. 61350

THEODORE A. GOTTFRIED

State Appellate Defender

300 East Monroe, Suite 100

Springfield, Il. 62701

217/782-7203

COUNSEL FOR RESPONDENT

oe

QUESTION PRESENTED FOR REVIEW

Whether the decision of the Illinois Appellate Court

which is based on three separate grounds is consistent with the

decisions of this Court.

Es.

hon

TABLE OF CONTENTS

Table of Authorities

Question Presented for Review

Opinion Below

Jurisdiction

Constitutional Provisions Involved

Statement of Facts

Reason Why the Writ Should Not be Granted

Conclusion

iii

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iii.

TABLE OF AUTHORITIES

Tague v. Louisiana, _ U.S. , 62 L.Ed. 2d 622,

T00 S.Ct. 652 (1580);

North Carolina v. Butler (1979) 441 U.S. 360, 60 L.Ed.

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

Ba. 2a 313 T1375) ; Pe

Haley v. Ohio (1948) 32 U.S. 596, 92 L.Ed. 244, 68

Ct. ;

Bond v. United States (10th Cir. 1968) 397 F.2d 162;

United States v. Hayes (4th Cir. 1967) 387 F.2d 162.

NO. 80 ~- 872

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1980

THE STATE OF ILLINOIS,

Petitioner,

JOHNNY LEE SAVORY,

Respondent.

ON PETITION FOR WRIT OF CERTIORARI TO THE

APPELLATE COURT OF ILLINOIS, THIRD DISTRICT.

-

RESPONSE IN OPPOSITION TO PETITION FOR WRIT OF CERTIORARI

OPINION BELOW

The opinion of the Appellate Court, Third District

of Illinois is reported as People v. Savory, 82 Ill. App. 3d

767 (I11. 1980) and is reprinted in Appendix A (pp. la-21la)

to the Petition for Certiorari.

JURISDICTION

The opinion of the Illinois Appellate Court, Third Judicial

District was filed on April 4, 1980. The order of the Illinois Supreme

Court denying the petition for leave to appeal was entered on

September 29, 1980.

CONSTITUTIONAL PROVISIONS INVOLVED

The Respondent agrees with the denotation of constitutional

provisions appearing in the Petition for Certiorari (the Fifth

and Fourteenth Amendments to the Constitution of the United

States).

STATEMENT OF FACTS

The bodies of the two victims were discovered on January

18, 1977 by the victims' stepfather, William Douglas, in the

bedroom of their residence. (R.392) 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 even given lie detector tests. (R.176,

177)

Johnny Lee Savory, the fourteen-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 Afternoon School where the

defendant was a student. (R.44) At the outset of the interrogation,

the defendant stated he did not want to talk. (R.45) However, the

police convinced him to talk. The defendant was not given any

Miranda warnings at that time. (R.78) At that time, the defendant

gave police an account of his activities of the day prior to the

murder. (R.45-50)

At 5:00 P.M., defendant was brought into an interrogation

room at the police station and repeated his previous story before

four cfficers. (R.58) This session lasted about one-half hour.

(R.60) Later that evening, the defendant was again interrogated,

this time with specific emphasis concerning certain factual

discrepancies between some of the known facts and defendant's

earlier statement. (R.64) This session lasted one-half hour to

forty-five minutes.. (R.64)

Although he made no incriminatory statements up to this

point in time, defendant was taken to a polygraph examiner at

10:00 P.M. (R.101) The defendant: was accompanied by two police

officers and his probation officer. (R.102) The defendant was

alone with the polygraph examiner for about an hour--until 11:00

P.M. (R.104) At the end of the polygraph examination, the results

of which were made known to Officer Cannon, the defendant was

Placed under arrest and read his Miranda rights. (R.106-107) The

defendant, in response, stated that he did not want to talk. (R.121)

At about 11:00 P.M., defendant was returned to the police station

and later taken es the detention home for the night. (R.109, 110)

The following morning, January 26, 1978, the defendant was

not taken to juvenile court but was returned to the police station

for further interrogation. The re-interrogation began at approxi-

mately 10:30 A.M. at the police station with Percy Baker and Y.T.

Savory, defendant's father, present. (R.138) Officer Hines, who did

not testify at the suppression hearing, read defendant his Miranda

rights. (R.138) During the ensuing interrogation, defendant was

confronted with several discrepancies at which time defendant

would change his story. (R.141) However, defendant still denied

committing the murder. (R.141) 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 wovld tell everything

to Officer Brown. (R.144) Officer Brown then began a session with

—

the defendant that lasted until 5:00 P.M. (R.147) Although

defendant gave a detailed statement of his activities, he still

made no incriminatory statements. (R.146) At the close of

this session, defendant was forced to change clothes. (R.147)

At approximately 6:00 P.M., defendant again took a poly-

graph examination. (R.181) ‘This session, with just the defendant

and the examiner present, lasted about an hour and a half. (R.188)

At the end of the examination, Officer Brown entered the examination

room and the defendant then made incriminating statements. (R.188)

Defendant indicated to Officer Brown the location of some of the

Stab wounds. (R.183) Defendant told Brown that he and Robinson

were practicing Kung Fu and that Robinson wanted defendant to use

the knife. (R.820) Defendant stated that he accidentally stuck

Robinson. (R.820) Defendant said his mind went blank and when

Cooper came into the room, she came at him and he cut her. (R.818)

Defendant then returned to the police station where he

denied any involvement to Percy Baker, his probation officer. (R.204)

Officer Brown told the defendant that this was “backtracking” and

began to question defendant for details of the murder. (R.204)

In answer to questions from Officer Brown, defendant said that Robinson

had been wearing dark trousers. (R.191) He also told Officer

Brown that he had left a bottle of fingernail polish at the Robinson

residence. (R.191) Finally, he stated that he had used the knife

that the police had in their possession. (R.192) Defendant's

confession was in error, however, as to the room in which victim

James Robinson was stabbed and as to the color of the victim Cooper's

nightgown. (R.206, 207)

Defendant filed a written motion to suppress the confession

(C.112) which was denied after a full hearing. (C.409) 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 evidence

related the nature of the victim's wounds, the physical setup of

their home and did tend to show defendant had at some time been at

the Cooper-Robinson residence. No eye-witnesses testified at

trial.

On appeal, the defendant argued 1) there was no oral

or written waiver of Miranda rights; 2) The statement was not

voluntary; and 3) The defendant's right to cut off questioning

was not scrupulously honored.

The Appellate Court agreed with all three of the defendant's

claims and reversed and remanded the case for a new trial. The

Illinois Supreme Court then denied the state's petition for leave

to appeal.

REASON WHY THE WRIT SHOULD NOT BE GRANTED

The Respondent argues the following reason why the

writ of certiorari should not be granted: 4

The decision of the Illinois Appellate Court

is based on three separate grounds which

are consistent with the decisions of this

Court.

Because the defendant in this case was a 14-year old

boy, the Appellate Court used special care in scrutinizing the

record to determine the voluntariness of the statement. Citing

this Court's opinion in Haley v. Ohio (1948), 332 U.S. 596, 92

L.Ed. 224, 68 S.Ct. 301, the Court stated that

"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 has

overcome at the time he confessed.”

In deciding that the defendant's statement. was not proved to

be voluntary, the court was influenced by the following factors:

l. The defendant was 14 years old. (App. Ct. opinion)

2. The defendant was interrogated for 17 hours during

two days of questioning and twice examined by a polygraph examiner.

(App. Ct. opinion)

3. When the police initially approached the defendant

at school, he indicated he did not wish to talk to them. (R. 45)

4. When Miranda warnings were given for the first time

eight hours after questioning began, the defendant exercised his

right to remain silent. (R.121)

5. After spending the night in a juvenile detention

center, the defendant was brought to the police station for

further questioning. (R.138)

6. The defendant made no explicit oral or written

waiver of his Miranda rights. (App. Ct. opinion)

7. After making an inculpatory statement, the defendant

denied any involvement to his probation officer. (R.240)

The court held:

"without deciding that the length of

questioning would of itself justify

suppression of the statements as not

voluntary, we believe the cumulative

effect of all the circumstances does

el the conclusion the prosecution

did not sustain its burden of establishing

the voluntariness of the statements."

There is nothing in the court's analysis of the voluntariness

issue which is inconsistent with the decisions of this court.

The defendant also argued that the record was void of

sufficient evidence to a knowing and voluntary waiver of his

Miranda rights. The Appellate Court recognized that no particular

form of waiver is required. United States v. Hayes, (4th Cir.

1967) 387 F.2d 375; Bond v. United States, (10th Cir. 1968) 397

F.2d 162; North Carolina v. Butler (1979) 441 U.S. 369, 60 L.Ed. *

2d 286, 99 S.Ct. 1755. But recognized that waiver will not be

implied either from a silent record or from the fact that the defendant

may have made statements. Tague v. Louisiana, U.S. °

62 L.Ed. 2d 622, 100 S.Ct. 652 (1980). The court held that under

the circumstances of this case, the state failed to show a knowing

and intelligent waiver of the defendant's Miranda rights.

Finally, the defendant argued that the defendant's right

to cut off questioning was not scrupulously honored by the police.

It is the court's ruling in this regard that the petitioner takes

greatest exception to. The petitioner claims that the appellate

court expands the requirement placed on reinterrogation established

in Michigan v. Mosley, 423 U.S. 96, 96 S.Ct. 321, 46 L.Ed. 2d 313

(1975). The petitioner agrees 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 the same offense. But the petitioner disagrees that

under the circumstances of this case, they should have shown a

reason why this boy was brought from the detention center for

further questioning when he had indicated he did not want to talk.

Rather than expand upon the ruling in Mosley, the court merely

applied the rationale of Mosley to the circumstances of this case.

The decision of the Illinois Appellate Court is not in

conflict with federal cases or those from other state jurisdictions

and Respondent urges this court to deny petitioner's request for

the issuance of a writ of certiorari.

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CONCLUSION

For the reasons. stated, the petition for writ of

certiorari should not be granted.

Respectfully submitted,

JOHNNY LEE SAVORY, Respondent

ROBERT AGOSTINELLI

Office of the State Appellate Defender

628 Columbus

Ottawa, Il. 61350

THEODORE A. GOTTFRIED

State Appellate Defender

300 East Monroe, Suite 100

Springfield, Il. 62701

217/782-7203

Counsel For Respondent

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