Petition — Brownell v. Illinois

Supreme Court brief1980

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Text

RECEIVED

rs JUL 2 B tix

no. BO-5122

OFFICE OF THE CLERK

SUPREME COURT, U.S.

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1980

CURTIS BROWNELL, Petitioner,

-VsS-

; PEOPLE OF THE STATE OF ILLINOIS, Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE SUPREME COURT OF ILLINOIS

Mary Robinson, Deputy Defender

Mark Schuster, Assistant Defender

Office of the State Appellate

Defender 5

63 Douglas Avenue

Suite 300

Elgin, Illinois 60120

(312) -695-8822

COUNSEL FOR PETITIONER

ste

QUESTIONS PRESENTED

I. Were petitioner's rights to silence and to counsel

scrupulously honored when State authorities engaged in the

functional equivalent of interrogation under Rhode Island

v. Innis, 0.Ss. (1980), after each of petitioner's

assertions of his rights in a 36-hour period?

II. a) Was petitioner cloaked with a right to counsel

when the state's attorney offered to give up his right to

seek the imposition of the death penalty in exchange for

petitioner's confession? ‘

b) Was petitioner's right to counsel violated, under

United States v. Henry, U.S. (1980), when the State

deliberately created a situation likely to induce him to

make an incriminating statement in the absence of counsel?

III. Did the prosecutor's decision to seek the imposition

of a death sentence violate due process of law or the Eighth

Amendment when he had promised not to do so if petitioner

would confess, and petitioner confessed?

IV. Is the provision of a mitigating factor, "under the

influence of an extreme mental or emotional disturbance, though

not such as to constitute a defense to prosecution,” unconsti-

tutionally vague under the Eighth Amendment?

V. Does the provision that the death sentence hearing.

may be convened only "where requested by the State” grant to

Tllinois prosecutor's so absolute a discretion to call for the

death sentence as to create a substantial risk that the death

penalty in Illinois will be imposed in an arbitrary and capri-

cious manner in violation of the Eighth Amendment?

Opinion

BO TOW. ok. a Ee a FE Oe es ee

Constitutional and Statutory Provisions Involved .

RIE 6 ee ee a he ee Bia 8 1

Statement of the BOs oes ek eT Se Boe SUS

Reasons for Granting the Writ Hee Nara Rt oa ag

If.

IIt.

IV.

This case presents the important question of

whether the State has scrupulously honored

petitioner's right to cut off questioning

under Michican v. Mosley, 423 U.S. 96 (1975),

when each time he invoked his right to coun-

sel or to silence the State engaged in the

functional equivalent of interrogation under

Rhode Island v. Innis, U.S. —ss_—« (1980),

thereby inducing his waiver of those rights. ... 10

a) This case presents the important question

of whether an accused must be afforded a

Sixth Amendment right to counsel when, during

its interrogation of the accused, the State

offers to give up its right to seek the

imposition of the death penalty in exchange

for the accused‘’s confession. . .....e«.e«+-e«-+ es 16

b) The decision below, that petitioner's

right to counsel was properly observed, is

in conflict with the recent decision of this

Court in United States v. Henry, U.S.

(1980), and the decision of the Court of

Appeals in United States v. Morrison, 602

F.2d 529 (3rd Cir. 1979) (cert. granted). .... 23

This case presents the important question not

yet decided by this Court of whether a pros-

ecutor, absent good reason, having obtained

petitioner's confession may in his discretion

request a death sentence hearing after prom-

ising not to do so if petitioner would con-

ORG. of Se 8. 8 ee ee er OO eee cee a ee ee

This case presents the important question of

whether the provision of the Illinois Death

Penalty Act, "under the influence of extreme

mental or emotional disturbance, although not

such as to constitute a defense to prosecu-

tion," is unconstitutionally vague under the

Eighth and Fourteenth Amendments. .......-.- 31

a) The decision below, that the standardless post-

conviction discretion to request or waive the

death penalty statute does not violate the eighth

amendment, conflicts in fundamental principle

with the decision in Furman v. Georgia. ..... 37

b) The constitutionality of the unicue post-

conviction discretion vested in prosecutors bv

the Illinois Death Penalty Statute has not been

determined by this Court in any of the death

penalty cases decided since Furman v. Georgia. . . 4]

DR SO RE OI TT se ee rT AT Pr PERS chee rene titan ETE eee orn eee

eee + A 7

PCN fa oe SOLE Oe gk obig is Rey e R ees ees 45.

INDEX TO APPENDICES

™~ .

Tliineis: Supreme Court Opinion . .. 2. 2 6s 6 ce ee ce A-1

es Ce Ic a Gh es pr 6 BO): 0 ots ee! eek B-1

Trial Judge's Suppression Order . ........ 6. «- C=i:

LESSEE OREN POOBAGY ACC a 4.6 se ce. 6 te ee ee ee D-1

I Sg SURES Cog GG op. 6) om ee Sule we E-1

; TABLE OF AUTHORITIES

Cases

Beck v. Alabama, U.S , 200: Siete. ;

__ L.Ed. 2d |) RE RR ie’. Teer, Pea rer ks

Brady v. United States, 397 U.S. 742, 90S.

Gee 250a, eo micmeecee FOr (29FG 2 eS ow eee Sa

Bram v. United States, 168 U.S. 532, 18 S.Ct.

cae Se eee eee, COORG ks as ls a 6. 6 we ee

Brewer v. Williams, 430 U.S. 387, 97 S.Ct. .

Eis ek enw ee RPE Ss fecal k: ou 68 ey we eet ae, ae ae

Fare v. Michael C., 442 U.S. 707, 99 S.Ct.

eOUs ) CR eNmeae Set. CASTSES ae 6 8 we a ee pce

Furman v. Georgia, 408 U.S. 238, 92 S.Ct.

SERCO) ae. eae BOO. CERIO s ov ewe oe SS oe 6. 0 6) eee eee

Gardner v. Florida, 430 U.S. 349, 97 S.Ct.

Rea e 6c es Oe Pee CRUE TDs co 4 we 3 6 te ow we OB eee

Godfrey v. Georgia, U.S. » 100 S.Ct.

SOME: OF, Ae GE EREOO) s 6, 6 « me eee 8 eo em

Grayned v. City of Rockford, 408 U.S. 104,

92 S:3Ce; 2294, 33 L.Ed. 2d 222 (1972) - - 7 7 . . . 32

Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. ' 29, 36, 3

BSCS 5: Se Dee ee: COP. Taerehs acs 0 2 6 eo et te ee oe

Jurek v. Texas, 428 U.S. 262, 96 S.Ct. 2950,

OB Si ee CE, o* ane ke are eo ee tI oe 36, 41

Kirby v. Illinois, 406 U.S. 682, 92 S.ct.

RAFT, Fe ees, PRADA. CEE evict a ee

Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954,

ee ee ARDS a nk Peeks ew ges ale GS a tee 32, 41

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

i AI ee RED. colt. wile ae epee oie «6. ea

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

i6 &. 0d. 20 G56 CA9GG) . «2 oe 0 ee 6 we eee te RM

Moore v. Illinois, 434 U.S. 220, 98 S.ct.458,

0 he I ATOR on iak ie) a Og tia Bae ea ee

People v. Carlson, 79 Ill.2d 564, 404 N.E.2d 233

yk PAR ate IE Lee ee Pe AS pie nr SRNL MME en E M

People ex rel. Carey v. Cousins, 77 I11.2d 531, 397

N.E.2d 809 (1979) (Ryan, J. dissenting). .... . 39

iii

People v. Greer, 79 I11.2d 103, 402 N.E.2d 203

CROTS) ee Sale

People v. Holmes, 67 I11.2d 236,

8 6 8k } Ae Be eee

367

N.E. 2d

People v. O'Neil, 18 I11.2d 461, 165 N.E.2d 319

TheOO) . Ua ats. ssw Rs

People v. Walker, Illinois Supreme Court, No. 51989

(orally argued May 14, 1980)

Proffitt v. Florida, 428 U.S. 242, 96 S.Ct. 2960, 49

L.Ed.2d 913 (1976) .: .

Reid) vwe Covert; 3540.8. 1, 72% S.Ct.

—_——_—--—

L.Ed. 2d 1148 (1957) (Harlan, J. concurring).

Rhode Island v. Innis, U.S.

64 L.Ed. 2d 297 (1980 .

Roberts v. Louisiana, 428.U.S.325,

49 L.Ed. 2d. 974 (1976) .

Santobello v. New York, 404 U.S.257,

30 L.Ed.2d 427 (1971) .

United States v. Ash, 413 U.S.

37 L.Ed. 2d 619 (1973) .

United States v. Henry, u.Ss.

300,

L232, 2

92 S.Ct.

93 §.Ct.

100 S.Ct.

96 S.Ct. 3001,

ed 100 s.ct..__,

Ed. 2d ee a Me ws eS aes ee

United States v. Morrison, 602 F.2d 529 (3rd Cir.

1979), cert. granted, 27 Cr.Law Rptr. 4122 .

United States v. Wade, 388 U.S.218,

1926, 18 L.Ed.2d 1149 (1967)

Woodson v. North Carolina, 428 U.S.

2978, 49 L.Ed.2d 944 (1976)

Secondary Materials

7 Wigmore, Evidence (Chadbourn

ee. S601, ©. 286% 2s

87 S.Ct.

280,

Revision,

96 S.Ct.

1976)

. > . >

Illinois Pattern Jury Instructions - Criminal,

Nos. 2.03 and 24.01...

Statutes

Ga. Code Ann., 1975 Supp., Sec. 27-2534.1l(b) .. .

Fla. Stat. Ann., 1976-77 Supp., Sec.

Tll. Rev. Stat., 1977, Ch. 38, Sec.

Ill. Rev. Stat., 1977, Ch. 38,

Tex. Code. Crim. Proc., 1975-76 Supp., Art.

Sec.

921.141(1) .

6-2

9-1

1682,

495,

2568,

37.071 (a)

35,

10,

4l,

17,

22,

20,

36, 41

42, 43

31, 37

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1980

CURTIS BROWNELL, Petitioner,

iti

PEOPLE OF THE STATE OF ILLINOIS, Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE SUPREME COURT OF ILLINOIS

The petitioner, Curtis Brownell, prays that a writ of

certiorari issue to review the judgment and opinion of the

Supreme Court of Illinois holding that his confession was

properly obtained and that the Illinois death penalty statute

does not violate the Eighth Amendment's proscription of cruel

and unusual punishment.

OPINION BELOW

The opinion of the Supreme Court of Illinois was filed

on March 21, 1980, and is reported at 79 111.2da 508, 404

N.E.2d 181.

JURISDICTION

The judgment of the Supreme Court of Illinois was entered

on March 21, 1980. A petition for rehearing was denied by

order of the Court on May 29, 1980 and this petition is being

filed within sixty days of the Illinois Supreme Court's denial

of rehearing. The jurisdiction of this Court is invoked

under 28 U.S.C. Sec. 1257(3).

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

The Eighth Amendment to the Constitution of the United

States provides:

Excessive bail shall not be required, nor

excessive fines imposed, nor cruel and unusual

punishment inflicted.

The Fifth Amendment to the Constitution of the United

States provides in pertinent part:

No person shall...be compelled in any

criminal case to be a witness against him-

self... ,

The Sixth Amendment to the Constitution of the United

States provides in pertinent part:

In all criminal prosecutions, the accused

shall enjoy the right to...have the Assistance

of Counsel for his defense.

The Fourteenth Amendment to the Constitution of the

United States provides in pertinent part:

No State shall...deprive any person of

life, liberty, or rhage de without due pro-

cess Of law...

The provision for convening a capital sentencing hearing

following an Illinois defendant's conviction for murder is

found in I1l1.Rev.Stat., 1977, Ch. 38, Sec. 9-l1(d):

(d) Separate sentencing hearing.

Where requested by the State, the court

shall conduct a separate sentencing

proceeding to determine the existence

of factors set forth in Subsection (b)

and to consider any aggravating or

mitigating factors as indicated in

Subsection (c).

The provision for consideration of mitigating factors

at the death sentencing proceeding is found in I1ll.Rev.Stat.,

1977, Ch. 38, Sec. 9-1(c):

and Mitigation. The court shall consider,

or shall instruct the jury to consider any

aggravating factors which are relevant to

the imposition of the death penalty. Ag-

gravating factors may include but need not

be limited to those factors set forth in

subsection (b). Mitigating factors may

include but need not be limited to the

following:

*x* ek

2. the murder was committed while

the defendant was under the influ-

ence of extreme mental or emotional

disturbance, although not such as

to constitute a defense to prosecution;

STATEMENT OF THE CASE

Petitioner Curtis Brownell wai charged by complaint on

April 3, 1978, with the murder;. aggravated kidnapping, and

rape of Louise Betts in Boone Bennie Illinois (C. 2) The

State's Attorney's information on these charges was filed

on April 1C. (C. 10) Betts had disappeared from Rockford,

Illinois in September, 1977; her body was discovered in a

field in Boone County on March 31, 1978. Petitioner was

in custody in neighboring Winnebago County on that date,

on charges of attempted murder, aggravated kidnapping and

rape arising from an incident that also began in Rockford

and ended in a remote area of Boone County. (R. 435-442)

Counsel had been appointed hoe botlienwe on the Winnebago

County charges.

At 2:15 p.m. on March 31, petitioner interrupted the

Boone County detective who was reading him the Miranda

warnings and asked for his attorney to be present. (C. 353)

The detective did not call petitioner's lawyer, but before

leaving the room the detective displayed to petitioner a

picture of Betts, asking petitioner if he recognized her.

Petitioner "jerked back" and responded that he did not. (C. 353).

At 6:15 p.m. on March 31, petitioner stood in a lineup

concerning a third offense, a Winnebago County battery, and

met with counsel at that time. After the lineup, when counsel

informed a detective form Winnebago county that petitioner

would remain silent, the detective said, "Curt, you have a

right to talk to the detectives either with or without your

lawyers.” (C. 366) After petitioner responded that he would

remain silent, counsel was forced to cut off the detective

when he nevertheless began to “bring up another matter" to

petitioner. (C. 365-366) Petitioner presumed the question

concerned the Betts killing. (C. 366)

On the next day, at about 6:00 p.m., Winnebago County

detectives brought petitioner's wife to the jail because

they believed petitioner had admitted the Boone County murder

to her. She agreed to talk to the authorities if she could

meet with petitioner first. The state's attorneys and

police agreed to arrange a visit. (C. 262-270) Counsel

for petitioner, who was also acting as counsel for his wife,

asked to see petitioner when he heard the arrangements she

was making with the potice. An assistant state's attorney

from Winnebago Coufity, the state's attorney of Boone County,

and detectives from each county were now all presenc at the

jail with dousibad for petitioner, two Winnebago County

public defenders. The Winnebago County assistant state's

attorney ordered the jailkeeper to let counsel for petitioner

"cool their heels awhile” when they announced they were

going to see petitioner. (C. 347-349) Meanwhile, the

detectives took petitioner's wife to the jail's visiting

room to meet with petitioner. (C. 319)

When petitioner's lawyer observed him being led from

the cell area of the jail toward the visiting room, he began

to shout loudly and pound on the glass partition of the

lawyer's visiting room in which he had been waiting for the

past thirty minutes. (C. 348-349) Petitioner then broke

away from the two jailers who were escorting him, ran to the

attorney's room, and met with his attorney. (C. 298) After-

wards, he met with his wife. The visit left her “quite

disturbed emotionally.” Later, after she consulted another

lawyer, she refused to tell the police anything. (C. 321-322)

Petitioner briefly met again with his lawyer (C. 274).

A meeting between counsel and the two state's attorneys then

occurred, and they offered not to seek the death penalty in

Boone County if petitioner made a written confession to the

murder charge. Counsel conveyed this promise to petitioner,

and petitioner turned it down, reiterating that he wished to

remain silent (C. 323-324, 370-373), but also stating that

he wished more time to consider it. (R. 356)

After this conference with his attorney, petitioner was

tcansferied into an isolation cell at the jail. (Cc. 371, 373-

374) Petitioner described isolation as “much worse" than

weds

aaa ta an rel Sr re OL ee.

his regular cell. “It is a place of solivade. ‘There is no

one you can see. There is a steel bed with a mattress on it

and a toilet...there is a barred section from the floor to

ceiling, a brick wall with a solid steel door on that.”

(R. 251, 374-375) Before this time, it had also been arranged

for petitioner to have a visit with a clergymen, Rev. Dennison,

at his request, although it was not normal to have someone

visit an inmate at such time of the night. (C. 253-254)

When counsel relayed petitioner's decision to remain

silent but to consider the "no death penalty” offer to the

state's attorneys, the Winnebago County assistant state's

attorney ordered his detective to return ee petitioner's

cell in the jail. Counsel for petitioner, and a Boone

County detective, went with this detective. The detective

again told petitioner that "although his lawyer had advised

him not to talk to the police which was his right but if he

changed his mind and wanted to talk to us with or without

his Attorney being present, that was also his right.” (C. 276-

277) Counsel told the detective that petitioner had decided

to remain silent, and petitioner affirmed so to the detective.

(C. 357; 372) After additional but brief discussion between

petitioner and his counsel, outside the presence of the

detectives, the detective asked petitioner if he wished to

speak to him right then. (C. 372) Petitioner stated that he

yet needed more time to consider whether to change his

decision to remain silent. (C. 346, 373)

All the parties then left the jail area; it was about

1:00 a.m. At about 2:00 a.m. petitioner asked the jailer to

call the detectives back to the jail. When they arrived,

petitioner specifically said he did not want his lawyer to

be present and added that he had refused to take the deal

offered him because he wanted "to burn.” He signed a Miranda

waiver form and confessed, stopping only after the detectives

assured him that he had given them enough so he would "burn."

(C. 277-279) .

On this evidence, petitioner's pre-trial motion to

+f a

‘1

by AY;

7 .

Fl a DL a en 6 A ar errs aah ee hg ade i $ = : * ’ 7

niet Gielen 5

‘

suppress written and oral statements, based on violations of

his rights under the Fifth, Sixth, and Fourteenth Amendments,

(C. 56-57) was §ranted in part and denied in part by the

trial judge. The court suppressed evidence of showing peti-

tioner the photographs on March 31, but found the April 2,

1978 statements to have been "given freely and voluntarily”

by petitioner. (C. 79-80)

At a bench trial on the charges in the circuit court of

Boone County, the only evidence of a rape, the only evidence

of an aggravated battery, and the only evidence of petitioner's

connection with the alleged incident was his confession.

Other evidence presented at the trial established the date

of the girl's disappearance, the location and discovery of

the remains of the girl's body on March 3l, 1978, the meager

findings of the pathologist, and the identification of the

body by dental charts. No defense was presented.

After the trial, the prosecutor called for the special

sentencing procedure for imposing the death sentence. At

the trial judge's insistence, pursuant to petitioner's pre-

trial motion, the state's attorney had declared before the

trial began that “we will be asking the death penalty in

this case..." (C. 650)

Prior to the hearing, petitioner filed a motion to

strike and quash as unconstitutional the Illinois Death

Penalty Statute, citing a number of grounds including "that

the statute fails to set forth guidelines in directing under

what conditions or cases the State's Attorney shall seek the

death penalty [and] that it allows for a capricious and

whimsical selection of people who may be subject to the

possibility of the death sentence." (C. 110-112) The trial

court denied the motion, specifically finding this ground

"the most important question that has been raised by the

Defendant here today..." and concluding that “the legislature

has devised a sound and rational manner of determining™

whether a death penalty should he imposed in certain cir-

cumstances..." (R. 646)

Petitioner's motion to strike the statute also main-

tained that it was unconstitutional because "the categories

of aggravating and mitigating factors in Section 9-1 are

impermissibly vague," specifically noting that "the enumerated

mitigating factors are vague and without definition or

guidelines.” (C. 111) The trial judge denied the motion

without specifically commenting on this allegation. (R. 646)

At the hearing petitioner offered the testimony of two

psychiatrists who adjudged him to be suffering from an

extreme mental or emotional disturbance at the time the

eishatinn was committed. One found petitioner to be a schizophrenic

person with multiple sexual deviations; the other concluded

he suffered from a personality disorder, passive-aggressive

type, with multiple sexual deviations. (R. 451, 477) The

two psychiatrists who testified in rebuttal for the State

reached similar conclusions; both found that Brownell

suffered from a personality disorder, passive-aggressive

type, with sexual deviation. (R. 499-505)

The reports of these four psychiatrists are also in

virtual agreement on Brownell's background -- each relates a

history of sexual abuse and intimidation which grossly

alienated Curtis Brownell from human reality. (See People's

Exhibits Nos. 57, 59 and Defendant's Exhibits Nos. 52, 54)

Despite this agreement on the facts underlying the

case, the four witnesses reached disparate conclusions on

the question of the existence of an extreme mental or emotional

disturbance and its influence on petitioner at the time of

the killing. The two defense witnesses testified that

petitioner suffered from such a disturbance at the time the«

girl was murdered (R. 452, 480), while the two State witnesses

concluded that he did not. (x. 499, 506)

None of the witnesses at the sentencing hearing defined

-7- i

the term “extreme mental or emotional disturbance” for the

court, or identified the critical element on which he disagreed .

with the others.

The sentencing judge conclussé that he did not find

"sufficient evidence to show such extreme mental or emotional

disturbance did occur" from "carefully examining everything

in the confession and everything that has been presented in

the defense here." (R. 577) ‘The judge believed that in order

to find an extreme disturbance “some event must have occurred

or the events that followed would not have occurred.” (R. 577)

The judge did not find such a triggering event, but found

"to the contrary the sequence of events...indicates and

shows to the Court that there was a deliberate methodical

design in the acts that were committed...." (R. 577) The

judge then imposed a sentence of death. (R. 580)

On appeal, the Illinois Supreme Court rejected petitioner's

contentions that the admission of his confession against him

violated both his right to silence under the Fifth and

Fourteenth Amendments and his right to counsel under the

Sixth and Fourteenth Amendments. People v. Brownell, 79

111.24 508, 404 N.E.2d 181, 186, 188 (1980) (Appendix A p.

3, 6)

The Illinois Supreme Court also rejected petitioner's

contenti n that the death penalty is precluded in Illinois

because of the improper grant of prosecutorial discretion to

prosecutors in Section 9-1(d) of the statute, 404 N.E.2d at

191 (Appendix A, p. 11). Without specifically addressing

petitioner's contention that the mitigating factor “extreme

mental or emotional disturbance" is unconstitutionally

vague, the Court also upheld the lower court's finding that

no extreme mental or emotional disturbance was proven at the

sentencing hearing. 404 N.E.2d at 197 (Appendix A, p. 20)

Nevertheless, because it held that the sentencing judge had

improperly concluded as an aggravating factor that petitioner

had murdered "an eyewitness against him,” the court vacated

the death sentence. Despite the rulings affirming the

validity of the sehtore) the exercise of discretion against

petitioner when the State’s Attorney of Boone County asked

for a death sentence hearing, and the other findings of the

sentencing judge at the death penalty hearing, the court

remanded the cause for a new sentencing hearing. 404 N.E.

2d at 195 (Appendix A, p. 17)

The Cc rt then allowed the filing of a supplemental

issue attacking the prosecutor's decision to seek the death

penalty after petitioner had confessed, even though the

prosecutor had promised not to do so in exchange for the

confession, in addition to a petition for rehearing. The

petition for rehearing was denied and no discussion of the

supplemental issue was added to the Court's original opinion.

(Appendix B)

REASONS FOR GRANTING THE WRIT EE

THIS CASE PRESENTS THE IMPORTANT QUESTION OF WHETHER THE

STATE HAS SCRUPULOUSLY HONORED PETITIONER'S RIGHT TO CUT OFF

QUESTIONING UNDER MICHIGAN V. MOSLEY, 423 U.S. 96 (1975),

WHEN EACH TIME HE INVOKED HIS RIGHT TO COUNSEL OR TO SILENCE

THE STATE ENGAGED IN THE FUNCTIONAL EQUIVALENT OF INTER- ~

ROGATION UNDER RHODE ISLAND V. INNIS, U.S. ____ (1980),

THEREBY INDUCING HIS WAIVER OF THOSE RIGHTS.

In this case, state authorities engaged in a relentless,

intentional course of conduct which they reasonably should

have known was likely to induce petitioner to forego his

previously invoked right to counsel and right to silence and

then make an incriminating statement. The Illinois Supreme

Court's sanction of this conduct, by its holding that the

State "scrupulously honored" petitioner's assertion of his

rights, People v. Brownell, 79 I11.2d 508, 404 N.E.2d 181,

188 (1980) (Appendix A, p. 6), renders the safeguards of

Miranda empty formalities, is directly opposed to this

Court's ruling in Michigan v. Mosley, 423 U.S. 96 (1975),

and is inconsistent with this Court's very recent decision

‘

in Rhode Island v. Innis, 0.8. 7x £00 6.Ct. 1682, 66

L.Ed.2d 297 (1980).

In Innis, this Court confirmed that interrogation of a

suspect in custody encompasses more than merely express

questioning. “The Miranda safeguards,” this Court wrote,

"come into play whenever a person in custody is subjected to

either express questioning or its functional equivalent."

The term “interrogation” thus includes “any words or actions

on the part of the police...that the police should know are

reasonably likely to elicit an incriminating response from

the suspect." Rhode Island v. Innis, 100 S.Ct. at 1689.

Additionally, Michigan v. Mosley established 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 scru-

pulously honored." 423 U.S. at 104. It was critical in ‘

Mosley that the detectives “immediately ceased the interrogation

and did not try either to resume the questioning or in any

-~10-

way persuade Mosley to reconsider his position.” 423 U.S.

at 104. The Mosley Court also established the following

policy: "To permit the continuation of custodial interro-

gation after a momentary cessation would clearly frustrate

the purposes of Miranda by allowing repeated rounds of

questioning to undermine the will of the person being ques-

tioned." 423 U.S. at 102.

Therefore, the Mosley Court recognized in a suspect in

custody an "option to terminate questioning," a power which

"counteracts the coercive pressures of the custodial setting."

423 U.S. at 103-104. With his option, the suspect "can

control the time at which questioning occurs, the subjects

discussed, and the duration of the questioning.” 423 U.S. at

103-104. Only because the Mosley Court was not faced with

police who "failed to honor a decision of a person in custody

to cut off questioning, either by refusing to discontinue

the interrogation upon request or by persisting in repeated

efforts to wear down his resistance and make him change his

. mind" did it affirm the case. 423 U.S. at 105-106.

The record in this case, however, shows that the police

did not scrupulously honor petitioner's rights, but continued

the functional equivalent of interrogation after his every

invocation of his rights, and persisted in repeated efforts

to wear down his resistance and make him change his mind.

Moreover, there is here every reason to believe that the

State should have known that its interrogation of petitioner

was reasonably likely to evoke the confession which petitioner

ultimately gave.

On March 3l, 1978, the day the body of Louise Betts was

discovered in a field in rural Boone County, Illinois,

petitioner Curtis Brownell was in custody in neighboring

Winnebago County on other charges surrounding an attempted

murder, aggravated kidnapping, and rape. Petitioner was

represented by the Winnebago County Public Defender on those

charscs. On beth March 31, and April 1, 1978, authorities

from Boone and Winnebago Counties endeavored to interrogate

i a a = wy <n ey a a ee

petitioner regarding the respective murder and attempted

murder, as well as about a third matter, a battery.

The first interrogation o¢curred at 2:15 p.m. on Friday,

March 31. Detectives from Soéne: Cobnty approached petitioner

to question him about the Betts murder. Petitioner promptly

invoked his right to counsel; nevertheless, the Boone County

officers refused to call his Lawyer, but displayed to hima

photograph of the deceased girl and asked petitioner if he

knew her. Petitioner “jerked back slightly” when he saw the

picture and then said, "No."

At 6:15 p.m. on March 31, his attorney now present,

petitioner stood in a lineup on the Winnebago County battery

matter. After the lineup, petitioner invoked his right to

silence in the face of Winnebago County officer's efforts to

question him about the case. Winnebago County detective

Arbisi then told petitioner, "Curt, you have a right to talk

to the detectives either with or without your lawyer. That

is your decision.” Petitioner said he would stand on his

right to silence. Immediately, the detective then "started

to bring up another matter," which petitioner "presumed" was

the Betts murder case. Counsel for petitioner earnestly cut off

this questioning, reiterating petitioner's invocation of his

right to silence.

The next day, the Winnebago County detectives learned

that petitioner may have confessed to his wife during'a

telephone call from the jail. When they approached her

about it, she refused to say anything until after she had

met with petitioner. Immediately, they took her to the jail

and arranged a meeting. At the same time, the Winnebago

County assistant state's attorney telephoned the jailer and

ordered him to let counsel "cool his heels awhile” and to await

The Illinois Supreme Court found this continued inter-

rogation of petitioner after invocation of his right to counsel

to be a violation of his right to cut off questioning, citing

. Michigan v. Moslev, 4273 U.S. 96 (1975). The Court below found

no further violation of petitioner's rights, however.

his further directions. Only by counsel's loud shouting and

banging on the glass partition of the attorney's visiting

area to attract petitioner's attention, and petitioner's

breaking from the escort of his jailers and running to his

lawyer, was petitioner allowed to consult his attorney at

this time.

Petitioner then met with his wife. When, after this

meeting, she refused to discuss their conversation with the

police, and because she also failed to persuade petitioner

to come forward with a statement, the State's Attorney of

Boone County next offered not to seek the death penalty in

the resulting criminal prosecution if petitioner would

confess. When petitioner stood on his right to silence, at

the same time agreeing to consider the offer of leniency

extended to him, he was transferred into an isolation cell

for the night.

Sometime before this transfer to isolation, petitioner

asked to see a clergyman, Rev. Dennison.. The authorities

called Rev. Dennison and arranged ‘for him to visit petitioner

at the jail, although of course regular visiting hours were

over.

After his move to the isolation cell, one last time the

Winnebago County assistant state's attorney directed the

police to approach petitioner. Petitioner promptly stood

on his right to silence, and again the police detectives

told him that it was his right to speak to them without his

lawyer being present. Counsel and petitioner then briefly

conferred, and again the police detectives asked petitioner

if he would talk to them.

In sum, at. every turn in this case, every time petitioner

asserted his rights, the State dishonored the assertion by

continuing interrogation. Repeatedly, the State engaged in

conduct, clearly directed at petitioner, by which it intended

to induce him to abandon his reliance on his rights and to

conf fo.

There can be no doubt that the State's Attorneys and

-i13-

police should have known their deliberate conduct was rea-

sonably likely to elicit an incriminating statement. The

authorities here believed that petitioner recognized the

deceased girl, after they improperly induced his recognition

of her picture. They believed that he was inclined to

unburden himself, after they learned that he had confessed

to his wife over the telephone. They knew that she was

reduced to tears after visiting with him in person, another

indication that he had admitted his guilt. They knew also

that he had asked to see a clergyman, a clear indication of

a troubled conscience.

The tactics engaged in by the State -- displaying the

photograph, asking petitioner to talk without his lawyer,

arranging for him to meet with his wife before allowing him

to meet with his lawyer, offering to forego the death penalty,

again suggesting that petitioner meet with the police without

his lawyer, and finally, putting petitioner into an isola-

tion cell -- could only have been perceived by petitioner as

one after another pressuring tactic to obtain his confession.

Innis firmly establishes that each of these tactics by

the State amounted to interrogation. Such continued inter-

rogation in the face of petitioner's steadfast invocation of

his rights violates the clear command of Mosley.

Lastly, the Illinois Supreme Court's express reliance

on the waiver of rights by petitioner just before he confessed

at 2:00 a.m. on April 2nd is in error. The voluntariness of

such a waiver must be judged under the totality of the

circumstances, Fare v. Michael C., 442 U.S. 707 (1979), and

the State bears a heavy burden of persuasion on the question.

Brewer v. Williams, 430 U.S. 387, 402-406 (1977); Miranda v.

Arizona, 384 U.S. 436, 475 (1966). All of the State's

conduct on March 31 and April 1 cannot be divorced from the

events at the final 2:00 a.m. meeting. More specifically,

the State may not avoid the impact of its knowing conduct,

meant to elicit a waiver, just because the desired waiver

was made in the end.

Thus, the Illinois Supreme Court may not justify its

holding below on the ground that petitioner "said he under-

stood his rights and signed a statement to that effect," 404

N.E.2d at 187, or because he “expressly declined to remain

silent or to have counsel present [and] said the attorney

would not permit him to say what he wished to say to the

detectives." 404 N.E.2d at 188. The State deliberately

undertook a course of conduct, clearly directly at petitioner

which it knew would lead petitioner to waive his rights to |

counsel and to silence. In light of this conduct, the State

cannot be heard now to claim that it has met its heavy

burden of showing a voluntary waiver.

In summary, under this Court's holdings in Michigan v.

Mosley, 423 U.S. 96 (1975) and Rhode Island v. Innis,

U.S. _, 100 S.Ct. 1862, 64 L.Ed.2d 297 (1980), the State

here violated the Fifth Amendment rights of petitioner. A

writ wt suétiovert must issue to the Illinois Supreme Court

to redress the erroneous decision of that Court in conflict

with these decisions of this Honorable Court.

7a.

could talk to authorities without his lawyer being present;

it.

THIS CASE PRESENTS THE IMPORTANT QUESTION OF WHETHER AWN ACCUSED

MUST BE AFFORDED A SIXTH AMENDMENT RIGHT TO COUNSEL WHEN,

DURING ITS INTERROGATION OF THE ACCUSED, THE STATE OFFERS TO

GIVE UP ITS RIGHT TO SEEK THE IMPOSITION OF THE DEATH PENALTY

IN EXCHANGE FOR THE ACCUSED'S CONFESSION.

Louise Betts disappeared in Rockford, Illinois on

September 27, 1977 without a trace. The remains of her

body were not discovered until the following March 3l.

The body had been left in the middle of a corn field in

rural Boone County, out of sight from nearby roads. The

record of this case reveals no witness to the abduction,

no witness to the killing. In fact, no evidence at all

was presented at trial which linked petitioner to the com-

mission of the murder, outside of his confession to the

killing.

In short, without petitioner's confession, the State

had no evidence with which to prosecute him. State author-

ities thus engaged in a concerted course of conduct designed

to induce petitioner to provide the needed confession.

When other efforts had failed in this design, the State's

Attorney of Boone County offered to surrender his statutory

power to ask the trial court to impose a sentence of death

upon petitioner, after criminal proceedings against him,

if petitioner would confess to the murder.

Briefly, the State had previously displayed to petitioner

a photograph of the deceased girl immediately after he had

invoked his right to counsel; had then told him that he

and had later arranged for petitioner's wife to meet with

him after she told the authorities that she would persuade

him to talk, at the same time ordering the jailers to keep

petitioner's lawyer "cooling his heels awhile.” All of

these efforts to disengage petitioner from his lawyer, and

to induce him to make an incriminating statement, had

been fruitless before the Boone County State's Attorney

made his offer.

Traditionally, the Sixth Amendment right to counsel

-)6=

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attaches "at least...at or after the time the judicial pro-

ceedings havd been initiated against [an accused] -- ‘whether

by way of formal charge, preliminary hearing, indictment,

information, or arraignment.'" Brewer v. Williams, 430

U.S. 387 (1977). Petitioner here was not under formal charge.

However, every policy which this Court has recognized

for the application of the right to counsel to an accused

justifies the extension of the right to petitioner.

In the past, this Court has expanded the application of

the right to counsel under the Sixth Amendment "only when

new contexts appear presenting the same dangers that gave

birth initially to the right itself." United States v. Ash,

413 U.S. 300, 311 (1975). The recognized "core purpose"

of the guarantee of the Sixth Amendment was "to assure

"Assistance' at trial when the accused was confronted with

both the intricacies of the law and advocacy of the public

prosecutor.” 413 U.S. at 309. Hence, the guarantee has

been limited to those “critical confrontations of the accused

by the prosecution at pre-trial proceedings where the results

might well settle the accused's fate and reduce the trial

itself to a mere formality." United States v. Wade, 388

U.S. 218, 224 (1967).

The extension of the counsel guarantee of the Sixth

Amendment has been limited only to situations arising after

formal charge because, it is judged, "[{i]t is then that a

defendant finds himself faced with the prosecutorial forces

of organized society and immersed in the intricacies of

substantive and procedural law." Moore v. Illinois, 434

U.S. 220, 228 (1977). Moreover, "it is only [after a formal

charge is filed) that the government has committed itself

to prosecute, and only then that the adverse positions of

government have solidified." Kirby v. Illinois, 406 U.S. 682,

689 (1972). ‘

All of these comatbieatteits justify the application of

a Sixth Amendment right to counsel to petitioner.

First, petitioner was clearly faced with “the prosecutorial

ee MS VMEBSHL CEM SUGCLZSELY>= BS WES AES SONS SOVELLVECSU WT +

the concerted efforts of the state's attorneys of two dif-

ferent counties, and the detective squads of each as well.

Second, the adversary positions of the parties in this

case were apparent from the very beginning of the investi-

gation. The state's attorneys were only too aware of the

fact that petitioner himself was the sole source of the

evidence they needed to prosecute the offense. Without

delay, the State authorities deliberately set out to extract

this evidence from petitioner. These authorities believed

that petitioner had recognized a photograph of the deceased

giri. They knew that petitioner had been identified in

neighboring Winnebago County as the assailant in a similar

incident which had occurred in the same part of rural Boone

County. They also believed that petitioner had admitted the

killing to his wife. Surely, had they any firm evidence to

back up these beliefs, the State would have filed a charge.

Moreover, the adverse position of the State was betrayed

by the "advise" twice given to petitiorer by one of the

Winnebago County detectives. Detective Arbisi told petitioner

on Friday evening and again on Saturday that he had the

right to talk to the detectives with or without his lawyer

being present when petitioner had invoked his right to

silence through his lawyer. The second time Arbisi thus

attempted to disengage petitioner from his counsel, he had

been "instructed" to approach petitioner by an assistant

state's attorney of Winnebago County. This repeated admonition

to petitioner by the State makes it clear that the efforts

to obtain a confession were not merely investigatory but

were adversarial.

Finally, once the Boone County State's Attorney made

his offer to forego the death penalty in exchange for petitioner's

confession, the adverse positions of government and defendant

were solidified. Because without a confession no prosecution

was possible, petitioner held the power to prevent or at

least limit the prosecution against himself. The State's

i er ene a ———— ee

Attorney made it clear by his terms that if the petitioner.

would expend his power to thus control his prosecution for

the offense, the prosecution would in turn surrender its

power to seek the ultimate penalty against him. The offer

went to the very heart of the adversary process, conviction

or acquittal. There was at stake here not just another

piece of evidence for use at petitioner's trial, but rather

the State's entire case. Thus, the extension of this offer

was not merely an investigatory step.

Moreover, the offer exposed a third justification for

the extension of the right to counsel to this case. The

offer made clear that the State was “committed to prosecute.”

Clearly, by the time he made the offer, tne State's Attorney

was troubling over only what penalty he might seek; it had

to have been assumed that should he obtain the confession he

would certainly prosecute.

Fourth, the offer raised up a number of intricate questions

of substantive and procedural criminal law. Because petitioner

held the power to define the prosecution against himself, it

was essential that he be informed of the elements of the various

charges against him. By not confessing at all, petitioner

would have assured that he would not be prosecuted. On the

other hand, by confessing to the killing alone, exposing no

death penalty aggravating factors, petitioner would have

assured at least that his life would not be taken. Petitioner

was in need of the assistance of counsel to understand these options.

Moreover, the matter of his confessing also involved

intricacies of the Illinois corroboration rule. In Illinois,

the law demands corroborating proof that a crime did in fact

occur before an individual who has confessed is punished for

the act. People v. O'Neil, 18 Ill.2d 461, 165 N.E.2d 319 (1960).

However, "it is enough if the [additional] evidence either tends

to show that a crime did in fact occur or to corroborate the

confession.” People v. Holmes, 67 I11.2d 236, 367 N.E.2da 663 (1977).

Illinois is in the minority of jurisdictions which accepts proof

-19-

a ——— i

of corroborating facts of any sort whatever which tend to

confirm the truth of the confession. 7 Wigmore, Evidence,

(Chadbourn Revision, 1976), Sec. 2071, p. 396.

Thus, for example, although there was no: extrinsic

evidence of a rape in this case, the trial judge was justified

in entering a conviction for rape where petitioner admitted

such an act and the confession was otherwise shown to be

believable. In exercising his power over his own prosecution,

it would thus have been critical for petitioner to be well

aware of this principle.

In addition, it would be important to petitioner's

comprehension of the offer to clearly understand that the

prosecutor alone holds the power to seek the imposition of

the death penalty in Illinois. Under Illinois law, a death

penalty sentencing hearing may be held only “where requested

by the State." I1ll.Rev.Stat. 1977, Ch. 38 Sec. 9-l1(d). The

assistance of counsel was needed for petitioner to compre-

hend these principles of Illinois law.

Finally, by the confession he ultimately gave, peti-

tioner reduced the proceedings against him to a mere for-

mality. The efforts of the State to obtain his confession,

culminating in the State's Attorney's offer to forego the

death penalty, completely settled petitioner's fate. Armed

with petitioner's confession, the prosecution could not be

headed. The trial was zeduced to a mere formality of pre-

senting corroborating evidence to instill a sufficient

confidence in the trial judge that petitioner was just as

guilty as he had admitted.

At the trial, testimony was presented about the girl's

disappearance, about the discovery and the location of the

remains of her body, about t’ie meager findings of the pathol-

ogist who examined the body, and about the identification of

the body by dental charts. There was no defense presented.

The sole issue was the sufficiency of the corroboration of

the confession. The confession had thus rendered the trial

_— oe 2... ae eee eee ee i a ete oe <2 ee - . a lll a il

a mere formality within the meaning of Wade.

It can not be overlooked in this case that, despite

his promise, after petitioner disavowed the proferred deal

at the time he confessed, the Boone County State's Attorney

actually sought the imposition of the death penalty follow-

ing trial.

The right to counsel means the accused has the right to

have counsel acting as his “assistant,” his “spokesman,” or

his "advisor." United States v. Ash, 413 U.S. at 312. In

this case, when the State's efforts to disengage petitioner

from his counsel had succeeded, when petitioner was left

with no assistant, no spokesman, no advisor, he was grossly

taken advantage of. The State's Attorney of Boone County

obtained petitioner's confession to the alleged murder, which

he used to successfully prosecute petitioner to a capital

murder conviction, yet the State's Attorney obtained with

the confession a disavowal of the proffered deal. No lawyer

would have allowed such a surrender of advantage. At the

very least, counsel would have assisted petitioner in securing

the return benefit for the surpassing benefit he gave over

to the State

This is not to say that every accused must be afforded

a Sixth Amendment right to counsel to protect him against

the efforts of the State to secure his confession. This

Court has made clear that generally, before formal charge,

@n accused is protected by no more than his Fifth Adenttent

right to the assistance of counsel in effectuating his privi-

lege against self-incrimination. See Kirby v. Illinois, 406

U.S. 682, 689 (1972) and Rhode Island v. Innis, 100 S.Ct. at

1689, n. 4. The critical difference in this case is the

State's offer not to seek the death penalty.

This offer of leniency would ordinarily render the volun-

tariness of any resulting confession, at the very least, highly

suspect under the totality of the circumstances in which it

was given. See Bram v. United States, 168 U.S. 532 (1897);

cf. Brady v. United States, 397 U.S. 742 (1970). However,

this was no mere offer of leniency. This was an offer of the

greatest possible sentencing benefit, a benefit which was

sOlely within the power of the state's attorney to bestow.

After all, "“[T]he penalty of death is qualitatively different

from a sentence of imprisonment, however lona. Death, in

its finality, differs more from life imprisonment than a

100-year prison term ciffers from one only of a year or two.”

Woodson v. North Carolina, 428 U.S. 280, 305 (1976) (opinion

of Stewart, J.). Thus, it is clear that petitioner was

confronted with the most awesome power of the public pros-

ecutor in this case -- the power to take his life.

Under all of the policies recognized by this Court, peti-

tioner was entitled to the assistance of counsel for his

Gefense. Only the lack of a formal charge stands between

petitioner and his right. Yet in obtaining the critical

jonSensien, the prosecution here obtained the very evidence,

the only evidence, it could use to bring the charge that

would traditionally initiate petitioner's right. As soon

' as the State had the evidence, the formal charge was lodged,

early Sunday morning, April 3.

As the record makes so clear, there was little for

counsel to do once the charge was brought. Counsel could

then advise petitioner of the intricacies of the substantive

and procedural criminal law, but he had desperately needed

to be aware of those before he confessed. The confession

removed all the intricacies from petitioner's trial and

reduced the actual proceedings to a mere formality. Only

when the prosecutor requested a hearing for the imposition

of the death penalty, an event which counsel surely would

have precluded at the confession stage, were any intricacies

cast upon the otherwise smooth proceedings in this case.

The writ of certiorari should be granted to confirm

in petitioner a Sixth Amendment right to counsel in these

circumstances.

-22-

THE DECISION BELOW, THAT THE PETITIONER'S RIGHT TO COUNSEL

WAS PROPERLY OBSERVED, IS IN CONFLICT WITH THE RECENT DE-

CISION OF THIS COURT IN UNITED STATES V. HENRY, ame, v's

(1980), AND THE DECISION OF THE COURT OF APPEALS IN UNITED

STATES V. MORRISON, 602 F.2d 529 (1979) (CERT. GRANTED) .

In United States v. Henry, U.S. » 100 S.Ct. ’

L.Ed. 2d (1980), this Court has only recently restated

the rule that the government may not deliberately elicit an

incriminating statement from a suspect who is under indictment

and represented by counsel. U.S. at - In Henry, the

F.B.I. arranged for a paid informer "to be alert to any

statements made by the federal prisoners” with whom he was

housed, including Henry, who had been indicted and for whom

counsel had been appointed. Because the contingent fee

informer did not act solely as "a passive listener,” but

rather actively engaged Henry in conversations, the products

of which were incriminating statements, it was held that the

government had violated Henry's Sixth Amendment rights.

This Court concluded:

By intentionally creating a situation likely

to induce Henry to make incriminating state-

ments without the assistance of counsel, the

government violated Henry's Sixth Amendment

right to counsel. This is not a case where

---"the constable blundered" [cite omitted];

rather, it is one where the "constable"

planned an impermissible interference with

the right to the assistance of counsel.

U.S. at °

In this case, the State also intentionally created a

situation likely to induce petitioner to make an incrimina-

ting statement without the assistance of counsel. The State

engaged in a deliberate course of conduct designed to induce

petitioner to ignore his lawyer and to incriminate himself.

After the State's Attorney of Boone County offered to

forfeit his right to seek a sentence of death against peti-

tioner if he would confess, petitioner, through his attorney,

stood on his right to silence but asked for more time to

consider the offer. This response drew an immediate reaction.

First, petitioner was transferred to an isolation cell

in the jail. Petitioner found his isolation cell to be

-23-

“much worse’ than his regular cell. Moreover, Detective : ae

Arbisi said he ordered the transfer because he had ‘overheard =

petitioner telling his attorney that he wished to "end it

all tonight" Sain assumed a suicidal intention on the part of

petitioner. This assertion, however, is clearly belied by

the fact that Arbisi never told the jailers of his concern.

Petitioner also confirmed that the remark was made to his

lawyer, not to Arbisi, and made clear that it was made in

terms of “clearing all this up” that night by confessing.

Second, the assistant state's attorney of Winnebago

County, when he was informed that petitioner wished more

time to consider the offer, "instructed" Arbisi to approach

petitioner once more. Arbisi went back to the jail and

spoke with petitioner outside his cell, to advise him that

he need not adhere to his attorney's advice, but instead

could decide on his own to meet with and talk to the inves-

tigating detectives at any time.

Petitioner responded by re-asserting his right to

Silence, and then conferred briefly with his lawyer, who was

also present. When they had finished, as petitioner walked

past Arbisi back toward his cell, Arbisi asked him, "Do you

want to talk to me now?" Petitioner again declined and was

returned to isolation.

This pattern of conduct closely follows that condemned

in United States v. Morrison, 602 F.2d 529 (3rd Cir. 1979),

cert. granted, 27 Cr. Law Rptr. 4122. In Morrison, D.E.A.

agents visited the defendant at her home, without the know-

ledge or consent of her attorney, after her indictment.

They asked her about the source of her drug supply; they

told her they could make sentencing recommendations; they

informed her of government plans for. protection of informers.

They also told her that they doubted the capabilities of her

attorney, and urged her to obtain the services of a public

defender if she wished to cooperate with them. 602 F.2d at

530-531. One of the agents returned unannounced each of the

-24-

—

following two days; Morrison refused to see him the first

time, but the second day she listened as he “repeated the

statements he made during his first visit.” 602 F.2d at 531.

In this setting, the Third Circuit Court of Appeals

condemned the actions of the Government. "The challenged

conduct represents not only an ‘inadequately justified’ but

a thoroughly unjustified and wrongly motivated interference

with the attorney-client relationship, and constitutes a

violation of the defendant's Sixth Amendment right to effec-

tive assistance of counsel," the Court concluded. Because

"the deliberate undermining of constitutional rights must

not be countenanced," the Court dismissed the charges

against Morrison. 602 F.2d at 533.

This Court's grant of the writ of certiorari in the

case was limited to the propriety of the relief granted.

Thus, that the conduct in Morrison represents a deliberate

attempt to destroy the attorney-client relationship repre-

sented is not being challenged.

The State's deliberate attempt to destroy the attorney-

client relationship in this case must similarly be condemned.

As in Morrison, “the actual conduct, its motivation, its

intended effect, and its pointed intrusiveness are readily

apparent" in this case. 602 F.2d at 533.

It can not be overlooked that the State had interfered

with the attorney-client relationship in this case even,

before the offer he the Boone County State's Attorney. The

authorities here had refused to call in petitioner's lawyer,

and instead displayed to him a photograph of the deceased

girl and asked if he recognized her. They had previously

told him to ignore his attorney and speak to them without

him. When. counsel had desired to see petitioner when he

knew the authorities were arranging a visit with his wife,

who had promised that petitioner would speak to them after

the visit, the authorities instructed the jailers to let

counsel “cool his heels awhile” before seeing petitioner.

Nor can it be overlooked that petitioner here was in

= 23

5. 6 oe

FJ -

custody. This Court noted in United States v. ORE ieee 2

U.S. at ___—s that custody was a critical factor in deter-

mining whether the State has deliberately created a situation

likely to induce a suspect to make an incriminating statement.

"The mere fact of custody imposes pressures on the accused...

{and] confinement may bring into play subtle influences that

will make [the suspect] particularly susceptible to the

ploys of [the government]." _— U.S. at.

Lastly, the decision of the court below that petitioner's

right to counsel was "properly observed" because he was

given the opportunity to call in his attorney, and expressly

declined to do so just before he confessed, can not be

approved. The State may not be rewarded for its interference

with the attorney-client relationship. That the State's

efforts to disengage petitioner from his lawyer succeeded in

so short a time is ample evidence of their efficacy, and

strong reason to condemn the State's behavior despite the

resulting "waiver" of counsel by petitioner.

In sum, the State in this case has deliberately created

a situation likely to induce petitions: ‘ts make an incrimi-

nating statement without the presence of counsel. In the

face of his reliance on the advice of his lawyer, the police

transferred him to an isolation cell, removed him from the

cell to insist to him that he had the right to speak to them

without the presence of counsel, and then solicited sas

cooperation as they returned him to the cell. This is a

deliberate atiompt to destroy the existing attorney-client

relationship between petitioner and his lawyer which is in-

tolerable under the Sixth Amendment. A writ of certiorari

must issue to review the contrary decision of the Illinois

Supreme Court, in conflict with the recent decision of this

Court in United States v. Henry, U.S. , 100 S.Ct.

P L.Ed. 2d (1980) and the Circuit Court of Appeals‘

decision in United States v. Morrison, 602 F.2d 529 (3rd

Cir. 1979), cert. granted, 27 Cr. Law Rptr. 4122.

-26-

Iit.

THIS CASE PRESENTS THE IMPORTANT QUESTION NOT YET DECIDED BY

THIS COURT OF WHETHER A PROSECUTOR, ABSENT GOOD REASON, HAVING

OBTAINED PETITIONER'S CONFESSION MAY IN HIS DISCRETION REQUEST

A DEATH SENTENCE HEARING AFTER PROMISING NOT TO DO SO IF

PETITIONER WOULD CONFESS.

In Santobello v. New York, 404 U.S. 257 (1971), it was

established that in any case where a guilty plea "rests in

any significant degree on a promise or agreement of the prose-

cutor, so that it can be said to be part of the inducement or

consideration, such promise must be fulfilled." 404 U.S. at 262.

In Santobello, the prosecution had promised to refrain

from making any sentencing recommendation in exchange for

defendant's guilty plea. This Court felt that "the adjudicative

element inherent in accepting a plea of guilty" must be "attended

by safeguards to insure defendant what is reasonably due in

the circumstances." 404 U.S. at 262. "The interests of justice”

and “appropriate recognition of the duties of the prosecution

in relation to promises made in the negotiation of pleas of guilty”

required peee Santobello relief. 404 U.S. at 262.

The Santobello decision rests ‘on funidiamental fairness, a

notion included in Due Process of law under the Fifth and

Fourteenth Amendments. The instant case, however, involves

a heightened notion of due process. This is a capital case. It

is not conceded by this Court that “whatever process is ‘due’

an offender faced with a fine or a prison sentence necessarily

satisfies the requirements of the Constitution in a capital case.”

Reid v. Covert, 354 U.S. 1, 77 (1957) (Harlan, J. concurring).

This Court’s recent decision in Beck v. Alabama, __U.S.__,

100 S.ct.___, __ L.Ed. 2d _- (1980), confirms Mr. Justice

Harlan's statment. In Beck, defendant was found guilty

at a capital trial in which he was not allowed to propose

instructions to his jury regarding lesser included offenses.

Although this Court had never held “that a defendant is entitled

to a lesser included instruction as a matter of due process,”

since “the failure to give the jury the ‘third option’ of

conviction on a lesser ineluded offense would seem inevitably

-27-

“ONIN OE

SMO OMB

to enhance the risk of an unwarranted conviction," a risk that

"cannot be tolerated in a case in which the defendant's life is at

stake," this Court held Beck entitled to instruct the jury.

SS ade Re

In this case, both due process under the Fifth and

Fourteenth Amendments and consideration of cruel and unusual

punishment under the Eighth and Fourteenth Amendments require

that no death penalty proceeding be held. The order of the

Illinois Supreme Court remanding this case for a new sentencing

hearing is in error and must be reviewed by this Honorable Court

to square it with the principles of Santobello and Beck.

In this case the prosecution was faced with an inability

to prosecute the offense absent a confession from petitioner.

Without his confession, there was no evidence which linked

petitioner to the offense. The deceased girl disappeared in

September, 1977 without a trace, the remains of her body were not

found until March, 1978. . No cause of death could be determined.

There were no witnesses to the alleged abduction and killing.

Under these circumstances, the Boone County State's Attorney

offered not to seek the death penalty against petitioner if he

would confess. At the time he made the offer, the State's

Attorney had no basis to presume the death penalty would even

be possible in the case. Petitioner twice asked for time to

consider the offer, but within three hours had agreed to give

his confession.

Inexplicably, petitioner did not demand the proffered

guid pro quo before he gave over his confession. He told his

interrogators instead that he "wanted to burn."

Despite his outstanding offer, the State's Attorney

accepted petitioner's rejection and, his discretionary rower over

the death sentence restored by petitioner's guilt-ridden,

suicidal wishes, promptly requested a death penalty hearing

after trial.

No less than in Santobello, the interests of justice and

appropriate recognition of the duties of the prosecution in

-28-

exercising its discretion in asking for a death sentence in ~

Illinois require that relief be accorded petitioner here. Saale

No less than in Beck, the enhanced process due to a capital |

defendant requires that this prosecutor honor his surrender

of his statutory, discretionary power to ask for a sentence

of death when petitioner has delivered over the confession the

prosecutor's concession was meant to induce.

Petitioner's purported disavowal of the proffered deal

is of no account in this matter. To focus only on petitioner's

“rejection” of the deal would be to import the rules of

contract law into criminal law, and to elevate those rules

over the important constitutional principles at stake.

Compare Brewer v. Williams, 430 U.S. 387, 401 n.8 (1977) ("It

is argued that [the agreement not to interrogate Williams]

may not have been an enforceable one. But we do not deal

here with notions of offer, acceptance, consideration, or

other concepts of the law of contracts. We deal with constitutional

law.")

Thus, it is solely the State's Attorney's exercise of

his discretion that is under scrutiny here. The desire of

petitioner "to burn" for his crimes must have no bearing on

that exercise. Here, when he made the offer, the prosecutor had

determined that society's need to gain the evidence necessary to

prosecute petitioner at all outweighed its need to exact the ultimate

punishment. Compare Gregg v. Georgia, 428 U.S. 153, 225

(1976) (opinion of White, J.) ("[P]rosecutors will be motivated

in their charging decision by...the strength of their case....Thus

defendants will escape the death penalty through prosecutorial

charging decisions...because the proof is insufficiently strong."”).

The prosecutor's decision, once made, should not be retractable,

at least absent good reason. “It is of vital importance to the

defendant and to the community that any decision to impose the

death sentence be, and appear to be, based on reason rather than

caprice or emotion.” Gardner v. Florida, 430 U.S. 349, 358 (1977).

-29-

The record in this case reveals no reason for the prosecutor's

about-face. None of the eler ents_of his original exercise of

discretion changed between the time he decided to give up his

death sentence power for the confession and the time he used

his power in requesting the death penalty hearing. Indeed,

he had only received the indispensable confession he had

decided to bargain for, and used it most successfully in

securing petitioner's conviction. No caprice or emotion of

the Boone County State's Attorney, nor indeed, vetitioner's

own emotional desire "to burn" at the time he confessed, may

justify the State's Attorney's reversal of position in this

case.

Therefore, petitioner asks that a writ of certiorari issue

to resolve the important question presented in this case of

whether a prosecutor, absent good reason, having obtained

petitioner's confession may in his discretion request a death

sentence hearing after promising not to do so if petitioner

would confess.

-30-

ee ee let :

Iv.

THIS CASE PRESENTS THE IMPORTANT QUESTION OF WHETHER THE

PROVISION OF THE ILLINOIS DEATH PENALTY ACT, "UNDER THE

INFLUENCE OF EXTREME MENTAL OR EMOTIONAL DISTURBANCE, |

ALTHOUGH NOT SUCH AS TO CONSTITUTE A DEFENSE TO PROSECUTION,”

IS UNCONSTITUTIONALLY VAGUE UNDER THE EIGHTH AND FOURTEENTH

AMENDMENTS.

Section 9-l(c)(2) of the Illinois Death Penalty Act

provides that the sentencing authority shall consider in

mitigation of imposition of the death sentence that "the

murder was committed while the defendant was under the

influence of extreme mental or emotional disturbance, although

not such as to constitute a defense to prosecution." Ill.

Rev. Stat., 1977, Ch. 38, Sec. 9-1l(c) (2).

The Illinois Death Penalty Act provides no definitions

of the vague terms of this statute. Yet, this Court has

held that a state "must channel the sentencer's discretion

by clear and etlectine standards that provide specific and

detailed guidance and that make rationally reviewable the

process for imposing a sentence of death." Godfrey v. Georgia,

___U.S.____, 100 S.Ct. 1759,1764-1765, 64 L.Ed.2d 398 (1980).

Standards that are too vague thus:violate the command of

Furman v. Georgia, 408 U.S. 238 (1972), that no death penalty

procedure may create the risk that punishment will be inflicted

in an arbitrary and capricious manner.

Thus, part of the State's obligation is “to define the

crimes for which death may be the sentence in a way that

obviates 'standardless [sentencing] discretion.'" Godfrey v.

Georgia, 100 S.Ct.at 1764. Godfrey specifically held that an

aggravating factor, described only as “outrageously or wantonly

vile, horrible, or inhuman," is unconstitutionally vague under

the Eighth and Fourteenth Amendments. This Court held that "there

is nothing in these few words, standing alone, that implies

any inherent restraint on the arbitrary and capricious infliction

of the death sentence.” 100 S.Ct. at 1765. Without any guiding

instruction for the sentencing authority, the sentencer's inter-

pretation of this factor “can only be the subject of sheer specula-

tion." 100 S.Ct. at 1765. The sentencer's decision, then, can not be

reviewed rationally: “[t]here is no principled way to distinguish

-3]<

5-5

eae

was

the many cases in which it was not.” 100 S.Ct.at 1767.

The converse of this rule applies to the mitigating

factors which must be Sdinnideuet te the sentencer at the ceath

penalty hearing. Part of the State's obligation is to carefully

define the offenses for which a death penalty may be imposed,

100 S.Ct. at 1764; but the State must also not "create the

risk that the death penalty will be imnosed in spite of factors

which may call for a less severe penalty.” Lockett v. Ohio,

438 U.S. 586, 605 (1978). The obligation of the State is to

provide "clear and objective guidelines” for the entire death

penalty procedure. The decision to impose the penalty, that

is, the decision that the aggravating factors outweigh the

mitigating factors, is the decision which must be “rationally

reviewable."

The term "extreme mental or emotional disturbance” in

the Illinois Death Penalty Act does not give sufficient guidance

to the sentencer. Nothing in the provision puts an inherent

restraint on the arbitrary or capricious rejection of the

mitigating factor. Thus, the statute creates the risk that

the death penalty will be imposed despite a factor which may

call for a less severe sentence. Under Godfrey v. Georgia and

Lockett v. Ohio, the term is unconstitutionally vague.

It has long been recognized that a vague law “impermissibly

delegates basic policy matters to judges and juries, for

resolution on an ad hoc and subjective basis, with the attendant

dangers of arbitrary and discriminatory application." Grayned

v. City of Rockford, 408 U.S. 104, 108-109 (1972). The risk of

arbitrary and discriminatory application of a death penalty

law is especially forbidden. Furman v. Georgia, 408 U.S.

238 (1972).

It is also clear that a vague law raises up the danger

identified in Gardner v. Florida, 430 U.S. 349 (1977), that

the sentencing court will be deprived of the “participation of

~32-

—_ - - rn erm me _— re - - Pr ST PSY

. :

“6 +

counsel [important] to the process of evaluating the relevance.

and significance of aggravating and mitigating facts." 430

U.S. at 360. The Gardner Court recognized that “consideration

must be given to the quality, as well as the quantity, of

the information on which the sentencing judge may rely.”

430 U.S. at 359. Debate between the adversaries is “essential”

to this process. 430 U.S. at 360. No meaningful debate may

occur when the ultimate decision is shrouded in the personal

and private understanding of the factor by the judge.

The four Illinois cases raising a question regarding

this factor which have been presented to the Illinois Supreme

Court confirm the existence of a vagueness problem. [In

People v. Greer, 79 I11.2d 103, 402 N.E.2d 203 (1979), the

Illinois Attorney General on appeal confessed error on the

trial court's determination that there was no extreme mental

or emotional disturbance present in the case. The Attorney

General thus superimposed his own interpretation of the

provision upon the considerations of the sentencing judge

"and concluded on his own that "the General Assembly did not

intend to impose a death penalty in a case such as Alan

Greer's.” (Brief of plaintiff-appellee, p. 97) Although a

confession of error does not bind the Illinois Supreme Court

and the question was not decided as the court reversed on

other grounds, 402 N.E.2d at 209, the Attorney General's

confession bespeaks the vagueness in the provision.

In People v. Carlson, 79 Ill. 24 564, 404 N.E.2d 233

(1980), the Illinois Supreme Court, without offering any

objective guidelines, ruled that the judge below had erred

in rejecting the notion that defendant acted under the

‘influence of an extreme mental or emotional disturbance.

The judge below had discounted evidence that defendant had

been attempting suicide at the time of the shooting and that

he had undergone a physical (two heart attacks) and emotional

{loss of ,affection of his wife) deterioration in the year or

-~33-

SH oe: is

at) ee . | — Raa

two prior to the shooting. The Illinois Supreme Court over-

ruled the judge below, found that defendant was suicidal and

extremely distraught when the murder occurred, and vacated

the death sentence. 404 N.E.2d at 244-245.

In the third case, Peovlie v. Walker, No. 51989 (orally

argued May 14, 1980), the trial court said at the sentencing

hearing that he was "desperately searching for" the meaning of

the word “extreme” in the statute. The court inquired of a

witness, "“[C]an you give the Court any guidance, direction,

standard, or anything that would help for this Court to

determine what is an extreme mental or emotional disturbance?”

(Brief of defendant-appellant, Pp. 272). The witness then told

the court that extreme meant "severe," which meant "a severely

disturbed person...one who is almost continuously disturbed

without any lucid intervals of rationality at all." (Brief

of defendant-appellant, p. 173). Although this definition

far too closely describes insanity, a defense to prosecution in

Illinois, I11.Rev.Stat., 1977, Ch. 38, Sec. 6-2, to be

proper under the Illinois Death Penalty Act, the trial judge

nevertheless relied on it for “some guidance" in deciding

the issue. Defendant Walker has argued to the Illinois

Supreme Court that the mitigating term is vague without

judicial gloss; and he has urged the court to impose on the

provision the gloss put on the same or similar term in

Florida, Arizona, Arkansas and Ohio in support of his contention

that, so explained, the evidence presented at his sentencing

hearing establishes an extreme mental or emotional disturbance

at the time of the offense. Briefly, that evidence revealed

a history of alcohol and drug abuse, and heavy use of alcohol

and some use of mescaline on the day in question. (Brief of

defendant-appellant, pp. 177-188).

Lastly, in this case, the trial judge heard and considered

the testimony of four psychiatrists on the issue of the

-34-

its Vs kia ays ° * ae

existence of this mitigating factor. . Two concluded that Bl

petitioner suffered from an extreme mental or emotional

disturbance at the time of the murder; two concluded that he

did not. Rem kably, the psychiatrists agreed on all of the

data underlying their respective, disparate conclusions.

Yet none of the witnesses defined the elements which would

make up an extreme mental or emotional disturbance, or

identified the critical element on which they disagreed.

The judge decided there was no extreme disturbance because

he found "a methodical design" and no specific precipitating

event. The Illinois Supreme Court affirmed, finding the

judgment “supported by the evidence.” People v. Brownell, 79 Ill.

2d 508, 404 N.E.2d 181, 197 (Appendix A., p. 19-20). Thus, the

Court has yet to outline the principles by which to judge

the evidence in the first instance.

The problem exhibited in all these cases is only heightened

by the lack of direction in the entire Illinois Death Penalty

Act. The Act lays no burden of proof or burden of persuasion

_on the adversaries. The Illinois Neath Penalty Act does not

create a setting which “require[s] no more line-drawing than

is commonly required of a fact-finder in a lawsuit." Proffitt

v. Florida, 428 U.S. 242, 258 (1976). Sentencers in Illinois

do not evaluate the extreme mental or emotional disturbance

in the same way they “have traditionally evaluated the

validity of defenses such as insanity," which "involves the

same considerations." 428 U.S. at 258. The decision on the

latter is made under clear instruction as to the elements to

be proved and the burden of persuasion. See, for example,

Illinois Pattern Jury Instructions-Criminal, Nos. 24.01 and 2.03.

The decision on extreme mental or emotional disturbance is

aided by no such guidance as to the quality of the evidence.

This is not to say that “numerical weights" must be attached

to the mitigating factors, 428 U.S. at 259; it is only to say

that a clear and objective standard must be provided to judge

the quality of evidence on a given factor. Whether the mitigating

factors outweigh the aggravating factors is another matter.

=-39=

The vagueness problem in this provision of the Illinois

statute is also heightened by the lack of a requirement of

specific written findings by the sentencer. The sentencer

must decide the question of the existence of an extreme

mental or emotional disturbance on its own private inter-

pretation of the term and then may cloak the decision in the

secrecy of chambers or the jury room. Written findings were

recognized as critical to the process of imposing a death

sentence and providing rational review in Gregg v. Georgia,

428 U.S. 153, 211; Proffitt v. Florida, 428 U.S. 242, 250;

and Jurek v. Texas, 428 U.S. 262, 269 (1976) and a secret

consideration of evidence regarding sentence has been

condemned in Gardner v. Florida, 430 U. S. 349, 360 (1977).

The potential for arbitrary and capricious consideration of

the statutory mitigating factor, extreme mental or emotional

disturbance, under the Illinois Death Penalty Act must be

condemned.

' Therefore, petitioner asks that a writ of certiorari

issve to decide the important question of whether the

provision of the Illinois Death Penalty Act, “under the

influence of an extreme mental or emotional disturbance,

although not such as to constitute a defense to prosecution,"

Ill. Rev. Stat., 1977, Chap. 38, Sec. 9-l(c)(2), is un-

constitutionally vague under the Fighth and Fourteenth

Amendments.

THE DECISION BELOW, THAT THE STANDARDLESS POST-CONVICTION

DISCRETION TO REQUEST OR WAIVE THE DEATH PENALTY VESTED IN

PROSECUTORS BY THE ILLINOIS DEATH PENALTY STATUTE DOES NOT

VIOLATE THE EIGHTH AMENDMENT, CONFLICTS IN FUNDAMENTAL PRIN-

CIPLE WITH THE DECISION IN FURMAN v. GEORGIA.

The Illinois procedures for the imposition of the death

penalty for the offense of murder are contained in Sec. 9-l

of the Illinois Criminal Code. I11.Rev.Stat., 1977, Ch. 38,

Sec. 9-l(a-i). (Appendix D) Section 9-l(a) sets forth the

various acts which constitute the offense of murder but does

not define those murders for which the death penalty may be

imposed. This question is instead answered by reference to

Sec. 9-1(b), which lists seven "aggravating factors." The

death penalty is a possible sentence only if at least one of

these aggravating factors is found to exist by a judge or

jury at a separate sentencing hearing held after a defendant

has been convicted of murder. Sec. 9-l(g) and (h).

The Illinois statute, however, does not require under

any circumstances that a capital sentencing hearing be con-

vened following a defendant's nelriotion-ot murder. Rather,

under Sec. 9-1(d) of the statute, such a hearing can be held

only "[w)here requested by the State," and the statute con-

tains no standards to govern prosecutors in determining

whether or not to make such a request. Since a separate

sentencing hearing is a mandatory condition precedent to the

imposition of the death sentence in any case, it is apparent

that under this statutory scheme the applicability of the

death penalty in Illinois is not a function of specific

legislative definition but rather rests upon whether each

individwal prosecutor, in his unlimited discretion, decides

to request a capital sentencing hearing.

In Furman v. Georgia, 408 U.S. 238 (1972), this Court

held that capital punishment laws which afford the sentencing

authority unguided discretion to impose or not impose the

death penalty violate the Eighth Amendment. The basis of

this plurality decision was that as a result of this unlimited

discretion, the death penalty was being imposed in a dis-

criminatory manner, 408 U.S. at 240-257 (Douglas, J., con-

curring), capriciously and freakishly, 408 U.S. at 309-310

(Stewart, J., concurring), and so infreauently "that there

is no meaningful basis for distinguishing the few cases in

which it is imposed from the many cases in which it is not."

408 U.S. at 313 (White, J., concurring).

Subsequently, in Gregg v. Georgia, 428 U.S. 153 (1976),

the fundamental principle underlying the judgment in Furman

was stated as follows:

Because of the unigueness of the death

penalty, Furman held that it could not be

imposed under sentencing procedures that

created a substantial risk that it would be

inflicted in an arbitrary and capricious

manner. 428 U.S. at 188 (opinion of Stewart,

Powell, and Stevens, J.J.).

Accordingly, with respect to the sentencing authority, this

Court in Gregg concluded that Furman requires:

-..that where discretion is afforded a

sentencing body on a matter so grave as the

determination of whether a human life should

be taken or spared, that discretion must be

suitably directed and limited so as to mini-

mize the risk of wholly arbitrary and capri-

cious action. 428 U.S. at 189.

Considered in light of the above principles, the Illinois

death penalty statute does not meet constitutional require-

ments as it grants prosecutors the absolute discretion to

Gecide whether the death penalty will be a possible sentence

in any case in which a defendant is convicted of murder.

The effect of this statutory scheme is to expressly vest

Illinois prosecutors with the same unfettered and standard-

less power of selectivity regarding the imposition of the

death penalty which Furman held could not be given to a

judge or jury.

In rejecting the petitioner's Eighth Amendment claim,

the opinion below did not find that the Illinois statute in

fact contained guidelines which governed the State's decision

to seek or waive the death penalty. Nor could such a finding

have been made for the only guidelines in the statute, the

aggravating and mitigating factors listed in Sec. 9-l(b) and

(c), are not directed at the prosecutor. These guidelines

-38- ‘ age

P< AD.

Po Ae «a ja . an, San

‘s

“a.

A v

are expressly made applicable only to the judge or. jury anda”

come into play only after the prosecutor has decided to

request a capital sentencing hearing. Sec. 9-l(g) and (h).

On the prosecutor's exercise of discretion, the opinion

below concluded only that: "([The prosecutor] merely requests

a sentencing hearing dependent upon whether the requisite

elements for a death sentence exist [and] the prosecutor's

discretion is sufficiently guided since he will request a

sentencing hearing at the conclusion of the trial, after he

will heve had the opportunity to evaluate evidence to deter-

mine whether a sentencing hearing is, indeed, warranted."

People v. Brownell, 79 I1l.2d 508, 404 N.E. 2d 181, 191

(1980) (Appendix A, p. 11) This conclusion does not con-

front the real Eighth Amendment problem inherent in the

Illinois statute. The danger is not that Illinois prosecutors

will seek the death penalty in cases where they cannot prove

a requisite aggravating factor. The constitutional infirmity

in the Illinois statutory scheme lies in the fact that it

grants each prosecutor the absolute authority to refuse to

request a death penalty hearing in any case, for whatever

reason, even though his evidence might unquestionably establish

one or more of the aggravating factors. It is this unbridled

authority to preclude the possibility that the death penalty

will be imposed that violates the basic concerns of Furman.

The unguided discretion countenanced by this statute will

inevitably lead to an arbitrary and capricious a

of the death penalty similar to that condemned in Furman.

Some offenders will be chosen for the death penalty by one

prosecutor, while others will be spared solely because the

lack of statutory direction to the prosecutor will result in

uneven application of the law. It is inevitable that the

personal beliefs or office policies of the 102 Illinois

prosecutors will be the only basis of distinction between

some of those on whom the death penalty is imposed and

others who are passed over. See People ex rel. Carey v.

Cousins, 77 I11.2d 531, 397 N.E.24 809 (1979) (Ryan, J., dissenting) —

-39-

x A lal 34 — we 7 =

Tory eS

The court below was made aware of the already large’

number of cases exhibiting the discrepancies among local

prosecutorial practice: In one case which had recently been

decided by the Court below, the Illinois Attorney General

imposed his prosecutorial discretion upon the local pro-

secutor's decision by confessing that the decision had been

in error. People v. Greer, 79 I11.2d 103, 402 N.E.2d 203,

(1980). Petitioner specifically noted two cases (Appendix

E, List A) in which the prosecutor initially requested the

special sentencing hearing for imposition of the death

sentence hearing and after the hearing had been completed

and the jury had begun its deliberation, rescinded his

request and permitted imposition of a term of years of

imprisonment upon the offender. Petitioner also provided to

the court below his list of sixteen other cases (Appendix E,

List B) of which he was aware in which, despite the existence

of a death penalty aggravating factor, the prosecutor did

not request a special sentencing hearing to seek the death

sentence. In this case itself, the prosecutor had decided

prior to trial that he would not seek the death penalty

against petitioner, and then in his absolute discretion

changed his mind after trial and convened a death sentencing

hearing.

These cases expose the risk of arbitrariness and caprice

expressely injected into the Illinois death penalty scheme

by Sec. 9-1(d) of the Death Penalty Act. The unlimited,

post-conviction discretion bestowed upon prosecutors directly

violates the command of this Court in Furman. For this

reason, certiorari should be granted to review the judgment

of the Supreme Court of Illinois.

-~40-

————— > ee I et een

THE CONSTITUTIONALITY OF THE UNIQUE POST-CONVICTION DISCRE— *

TION VESTED IN PROSECUTORS BY THE ILLINOIS DEATH PENALTY

STATUTE HAS NOT BEEN DETERMINED BY THIS COURT IN ANY OF THE

DEATH PENALTY CASES DECIDED SINCE FURMAN V. GEORGIA.

Under the statutes of Georgia, Flordia, and Texas which

were upheld by this Court in Gregg and its companion cases,

Proffitt v. Florida, 428 U.S. 242 (1976) and Jurek v. Texas,

428 U.S. 262 (1976), the only discretion granted the pro-

secutor involved the pre-trial decision to charge or not

charge: a capital offense. Under these statutes, once a

defendant has been charged with an offense punishable by

death the prosecutor has no discretion or power to preclude

the possibility of the death penalty being imposed, for upon

conviction of such an offense a death penalty hearing is

mandatory. Ga Code Ann., 1975, Supp., Sec. 27-2534.1(b);

Fla Stat. Ann., 1976-77 Supp., Sec. 921.141(1); Tex. Code

Crim. Proc., 1975-76 Supp., Art. 37.071(a).2 Thus, in

rejecting a challenge to the prosecutor's discretion in these

cases, this Court held only that the existence of the pro-

secutor's traditional charging power was not impermissible

under Furman. None of the statutes upheld by this Court

vests the prosecutor with the unique post-conviction dis-

cretion to request or to waive a death penalty hearing as

does the Illinois statute.

The difference between the two types of discretion is

fundamental with respect to Eighth Amendment concerns, For

example, although the decision of the Georgia prosecutor

whether to charge a capital offense is a matter of discretion,

this discretion is neither unlimited nor unguided. Standards

hehe same limitation of prosecutorial discretion to pre-

trial charging decisions was contained in the statutes of

North Carolina, Louisiana, and Ohio, the only other state death

penalty laws which this Court has reviewed. See, Woodson v.

North Carolina, 428 U.S. 280, 286 (1976); Roberts v. Louisiana,

428 U.S. 325, 329-330 (1976); Lockett v. Ohio, 438 U.S. 586,

609-610 (1978).

-41-

for the prosecutor's charging decision are contained in the

substantive law defining the elements of a capital offense.

Thus, in determining whether td charge a capital offense the

prosecutor is always guided by the criterion of whether his

evidence establishes all of the statutory elements of that

offense. It is true that a prosecutor in Georgia could

refuse to charge a capital offense even though his evidence

would support such a charge and could thereby preclude the

possibility of the death penalty. However, the prosecutor

could do so only by disregarding the legislative will which

is embodied in the statutory definition of the capital

offense. It can reasonably be assumed, as three members of

this Court in Gregg assumed, that very few prosecutors would

arbitrarily ignore the statutory guidelines by making their

charging decisions on any basis other than the sufficiency

of the evidence to prove a capital offense. Gregg v. Georgia,

428 U.S. at 224-225 (White, J., Burger, C.J., and Rehnquist,

J., concurring); see also, Roberts v. Louisiana, 428 U.S.

325, 348-349 (White, J., Burger, C.J., Blackmun, J., and

Rehnquist, J., dissenting). Wor theee reasons, it can pro-

perly be concluded that the presence of the customary

prosecutorial charging discretion in the Qeciteine Florida,

and Texas systems does not create a substantial risk that

the death penalty will be imposed in an arbitrary or freakish

manner. '

In contrast to the above situation, the discretion

afforded prosecutors under the Illinois statutory scheme is

of a totally different and unlimited nature. Under the

Illinois statute, a prosecutor's ability to preclude the

imposition of the death penalty in any case is not left to

his traditional charging power; rather, this statute directly

grants Illinois prosecutors the unfettered authority to

decide whether any offender will be subject to the possi-

bility of a death sentence only after he has been convicted

of murder. Specifically, the Illinois death penalty statute

contains no standards whatever which govern the prosecutor's

~42-

exercise of this authority. The statute does not mandate

that a prosecutor request the death penalty even if his

evidence establishes one or more of the aggravating factors.

Therefore, unlike the situation in Georgia, Florida, and

Texas, an Illinois prosecutor can refuse to seek the death

penalty in any case, for whatever reason he personally deems

proper, and by doing so he would violate neither his official

trust nor any statutory policy. To paraphrase a condemning

observation from Furman, under the Illinois statutory scheme,

-.-the legislature does not itself man-

date the [death] penalty in any particular

class or kind of case (that is, legislative

will is not frustrated if the penalty is

never imposed), but delegates [to prosecutors]

the decisions as to those cases, if any,

in which the penalty will be utilized...—

ee cureteeee 408 U.S. 238, 311 (White,

In summary, the only form of prosecutorial discretion

that has been upheld by this Court in the death penalty con-

text is the traditional charging power. Such discretion is

unavoidable in our criminal justice systems and has been

characterized as being "no more than normal." Roberts v.

Louisiana, 428 U.S. 325, 348-349 (White, J., Burger, C.J.,

Blackmun, J., and Rehnguist, J., dissenting). In contrast,

the post-conviction discretion vested in prosecutors by the

Illinois statute is both unusual and totally avoidable.

Indeed, the Illinois General Assembly could have avoided the

Eighth Amendment defect by simply requiring that a death

penalty hearing be held whenever a defendant is convicted of

capital murder as did the legislatures in Georgia, Florida,

and Texas. It would then be up to the judge or jury, not

the prosecutor, to decide under the guidance of the statutory

aggravating and mitigating factors whether the evidence in

each capital case warranted the death penalty. Instead, by

explicitly injecting unbridled prosecutorial discretion into

the capital sentencing process, the Illinois General Assem-

bly drafted a statute, upheld in this case, 404 N.E.2d at

39. (Appendix A, p. 11), which nocdlessly creates the very

real danger that the death penalty in Illinois will be

-43-

- NS ee are eae

imposed in an arbitrary and freakish manner.

In Gregg v. Georgia, it was stated that in determining

whether a death penalty law satisfies the concerns of Furman,

"...each distinct system must be examined on an individual

basis.” 428 U.S. at 195 (opinion of Stewart, Powell, and

Stevens, J.J. ). The validity under the Eighth Amendment of

the unigue post-conviction discretion granted prosecutors by

the Illinois statutory scheme has never been considered by

this Court, and certiorari should be granted to decide this

important question.

-44-

™

CONCLUSION

For the reasons stated, petitioner requests that a

writ of certiorari issue to review the judgment and opinion

of the Supreme Court of Illinois as to each of the questions

presented.

Respectfully submitted,

Mary Robinson, Deputy Defender

Mark Schuster, Assistant Defender

Office of the State Appellate

Defender

63 Douglas Avenue

Suite 300

Elgin, Illinois 60120

(312)-695-8822

COUNSEL FOR PETITIONER

¢ Til 8.

APPENDIX A

OPINION

SUPREME COURT

OF ILLINOIS

Vnited States of America

State of | ms

Supreme Court

At a Cerm of the Supreme Court, begun and held in Springfeld, on Monday, the

tenth day of March in the year of our Lord, one thousand nine hundred and

eighty , within and for the State of Illinois.

Present: Josern H. Gorpennresn, Cuier Justice

Jusrice Rovext C. Unverwoon Jusnice Daxier P. Warp

Justice Howarv C. Ryan Justice Wntiam G. Crarx

Justice Tuomas J. Moran Justice Fvomas E. Kuuczrnsxt

Wiutam J. Scort, Atroxney Generar

Louse F. Dean, Manswat

Arrest: Crect L. Woons, Crerx

—————=

Be 3t Remembered, that afterwards, to-wit, onthe 21st dayof March ,19 80.

the opinion of the Court was filed in said cause and entered of record in the words and figures following, to-wit:

People State of Illinois, '

Appellee

No. 51646 vs. Appeal from

Curtis Brownell, , Sectk aaueeee

Appellant

}

RECEIVED

CLELL L. WOODS

CLERK OF THE SUPREME COURT MAR 24 1989

STATE OF ILLINOIS OFFICE OF TRE STATE APPELLATE

APR CLE AM DET . oe

Docket No. 51646--Agenda 3—Novembcr 1979.

THE PEOPLE OF THE STATE OF ILLINOIS, Appellee,

v. CURTIS J. BROWNELL, Appellant.

MR. JUSTICE CLARK delivered the opinion of the

court:

In a five-count indictment the defendant, Curtis 2.

Brownell, was charged with the murder, aggravated kid-

napping and rape of Louise M. Betts. Count I charged that

the defendant “committed the offense of murder, in

that he, without lawful justification and with the intent

to kill Louise M. Betts, strangled” her and thereby caused

her death, (Ill. Rev. Stat. 1977, ch. 38, par. 9—-1(a)(1).)

Count If charged that the defendant committed murder

by strangling Louise M. Betts, knowing that “such act

created a strong probability of death or great bodily

harm.” (Ill, Rev. Stat. 1977, ch. 38, par. 9—1()(2).)

Count Ill charged the defendant with felony murder in

that he killed the decedent while attempting or conmmit-

ting the forcible felonics of agyravated kidnapping and

rape (Ill. Rev. Stat. 1977, ch. 38, par. 9—1(a)(3)). Count

IV charged the defendant with committing the offense

“of Aggravated Kidnaping, in that he, in committing

the offense of kidnaping, in violation of Ulinois Revised

Statutes, chapter thirty-cight, section 10—1(a)(2), know-

ingly and secretly confined Louise M. Betts against her

will and inflicted another felony, to wit: Rape, upon

her.” Count V charged that the defendant “committed

the offense of Rape, in that he, a male person of the age

of 14 years and upwards, had sexual intercourse with

Louise M. Betts, a female not his wife, by force and

against her will.” Ill. Rev. Stat. 1977, ch. 38, par. 11—1(a).

On September 13, 1978, after a bench trial, the

defendant was found guilty of counts I, III, IV, and V

by the circuit court of Boone County. Count II was dis-

missed on the motion of the State. The judgment of

conviction under count III was subsequently vacated.

A final judgment of conviction was entered as to counts

I, IV and V.

The State requested a sentencing hearing for the

purpose of imposing the death penalty pursuant to sec-

tion 9—1(d) of the Criminal Code of 1961 (IU. Rev. Stat.

1977, ch. 38, par. 9—1(d)). The defendant waived a jury

proceeding and elected to be sentenced by the court.

The court sentenced the defendant to two concurrent

terms of 30 to 90 years in the penitentiary for the offenses

of aggravated kidnapping and rape. The court found that

based on the evidence adduced at trial two aggravating

factors had been established—that the murdered individual

was killed in the course of wo other felonies, aggravated

kidnapping and rape (Ill. Rev. Stat. 1977, ch. 38, par.’

9—1(b)(6)), and that the murdered individual was an

eyewitness against the defendant (IIL Rev. Stat. 1977,

ch. 38, par. 9--1(b)(7)). After hearing evidence in aggrava-

tion and imitigation, the court found that the State had

proved the two aggravating factors beyond a reasonable

doubt but that the defendant had not established any

mitigating factors sufficient to preclude the imposition

of the death sentence. The court then sentenced the

defendant to death for the offense .of murder.

The court sct November 5, 1979, as the date for the

execution of the sentence of death. The sentence was

stayed (73 Ill. 2d R. 609(a)) pending direct appeal to this

court pursuant to Rule 603 (73 Ill. 2d R. 603; Ill. Rev.

Stat. 1977, ch. 38, par. 9—1(i)).

Through a written statement made by the defendant

and admitted at trial, it was revealed that on Scptember

27, 1977, the defendant picked up the victim, Louise M.

Betts, while she was hitchhiking on a road in Boone

County. The defendant held a jack knife to the victim's

throat and drove to a road with cornfields on cither side.

The defendant stopped the car and toldvthe victiin to get

out and take off her clothes. He then engaged in sexual

intercourse with her. The defendant thereafter attempted

to strangle the victim, but she was able to get up and run

an undetermined distance. The defendant caught her,

strangled her again, and then stood or jumped on her

stomach and neck. The defendant dragged the victim

farther into the cornfield and Icft her. He said he felt her

pulse before he Ieft her but he did not know whether she

was dead or not.

The defendant was arrested on another charge on

February 2, 1978, by Winnebago County police. On

March 31, 1978, Boone County detectives requested an

interview with the defendant while he was still in custody

in Winnebago County on charges, unrelated to the instant

case, of attempted murder and rape. The defendant was

interviewed on March 31, 1978, and again on April 1,

1978. Defendant requested counsel after the first inter-

view on March 31, 1978, and was afforded the oppor-

tunity to consult with counsel! several times beginning at

6:15 p.m. on March 31, 1978. On April 2, 1978, at ap-

proximately 2 a.m. the defendant requested to see the

detectives. One of the detectives advised the defendant

that he had the right to have counsel present and offered

to call counsel. The defendant refused the offer, stating

that his lawyer would not let him say everything he wished

to say.

The defendant signed a rights waiver form and then

gave a three-page statement inculpating himself with regard

to the aggravated kidnapping, rape and murder of Louise

M. Betts.

The defense made a motion to suppress the statement

on the basis, inter alia, that he had been denied his right

to counsel and his right to remain silent. The motion to

Suppress was denied. The defense also made motions to

bar the imposition of the death sentence, to acquire funds

for expert witnesses, to exclude questions on voir dire

regarding the veniremen’s convictions concerning the death

penalty, and to hold the death penalty act unconstitu-

tional. These and several other motions were denied, and

are properly preserved fur review.

The defendont attacks the written statement on two

grounds: first, that its admission against him violated his

right against self-incrimination under the fifth and four-

teenth amendments to the United States Constitution

and under article I, section 10, of the Illinois Constitu-

tion of 1970. The defendant argues that the written state-

ment was taken from him in disregard of his right to

counsel guaranteed by the sixth and fourteenth amend-

ments to the United States Constitution and article I,

section 8, of the Illinois Constitution.

The State rejoins that the defendant made a knowing,

intelligent and voluntary waiver of his right to remain

silent and his right to counsel.

The State has a heavy burden to. show that a defend-

ant has waived his constituticnal rights in a knowing,

intelligent and voluntary manner. (Miranda v. Arizona

(1965), 384 U.S. 436, 475, 16 L. Ed. 2d 694, 724, 86

S. Ct. 1602, 1628.) We think that burden has been suffi-

ciently borne here. A detailed review of testimony at trial

conceming events leading up to the statement shows that

the defendant was in the custody of the Winnebago

County police on charges of attempted murder and rape

on March 31, 1978. At approximately 2:15 p-m. on that

day, Winnebago County detective Robert Ferger, accom-

panied by Boone County detective Joe Rollins, inter-

viewed the defendant. The defendant interrupted Rollins

during the reading of the Miranda rights to ask for his

attorney to be present. Rollins did not call the defendant's

attomey; instead he ceased questioning the defendant.

Before he walked out of the interview room, Rollins

placed a picture of Louise Betts, the murder victim, in

front of the defendant and asked the defendant if he

recognized the person in the picture. According to the

testimony of the two detectives received during the

hearing on a sccond motion to suppress, the defendant

“jerked back slightly” and responded he did not know the

person, The motion to suppress was granted so that the

incident with the photograph and testimony of the two

officers concerning it were kept from the jury during the

trial.

™

By 6:15 p.m. on March 31, 1978, the defendant was

represented by counsel. At that time the defendant ap-

peared in a lincup, concerning the Winnebago County

offense. The defendant met with counsel before and after

the lincup. After the lineup, Gary Arbisi, a Winnebago

County detective investigating the previously referred

to offenses informed the defendant that he could speak

to the police whether his attorney was present or not.

The defendant stated he would follow counsel’s advice.

Arbisi started to say something else but counsel prevented

him from doing so.

The next day, April 1, 1978, at approximately 6 p.m.,

Arbisi and another detective went to the defendant's

home to speak with the defendant’s wife conceming

information they had received that the defendant had

told Mrs. Brownell he was guilty of murder. Mrs. Brownell

asked to speak with her iawyer. When counsel arrived he

advised Mrs. Browncl! not to speak to the detectives.

Mrs. Brownell eventually agreed to talk to the detectives,

but only if she could first speak with the defendant. The

detectives then arranged a visit at the jail between the

defendant and his wife. The defendant met separately

with counsel, then with his wife and, later, again with

counsel. Mrs. Brownell agreed to tell the police “every-

thing” but, after a phone call with the defendant’s step-

father, an attumey, she declined to make a statement.

The defendant’s counsel, after-his later mecting with

the defendant, stated to a detective that he thought

negotiations should begin with the State’s Attorney to

waive the death penalty in any ensuing proceeding.

Counsel then met with the State’s Attomeys of Boone

and Winnebago counties and two assistant State’s Attor-

neys until 10 p.m. An offer was made by the Statc’s

Attorneys that if the defendant made a written confession

of murder, the death penalty would not be sought at

trial. Thereafter the defendant, after conferring again

with counsel, declined the offer.

A final conference took place among the defendant,

defense counsel, and Detectives Arbisi and Rollins. Arbisi

asked the defendant if he wished to speak to the detec-

tives. Counsel advised the defendant not to do so. Arbisi

then asked counsel for permission to speak to the defend-

ant. Counsel granted permission. Arbisi told the defendant

that while the defendant did not have to speak to the

police, if he changed his mind and wanted to speak to the

police, with or without counsel present, the defendant

could do so. The defendant said he would follow counsel’s

advice. A few minutes later, on the way to his cell, the

defendant was asked ayain by Arbisi whether he wished to

talk. The defendant answered that he needed more time.

Counsel informed the other attorneys that the defendant

necded more time to consider their offer. It was approxi-

mately 1 a.m. on April 2, 1978, when all parties dispersed.

Approximately one hour later, the defendant told the

jailer he wanted to talk to the police. Detectives Arbisi

and Packard were summoned. When they met the defend-

ant in am interview room, Arbisi asked the defendant

whether the defendant desired to have counsel present.

The defendant said he did not want counsel tu be present.

The defendant was advised of his Miranda rights. The

defendant said he understood his rights and signed a state-

ment to that effect. He then gave an incriminating written

statement to the police.

The defendant argues that he did not waive cither the

right to remain silent or the right to counsel. He states

that the right to remain silent was violated when the

detectives did not “scrupulously honor” it at the initial

interrogation session. Also, the defendant states that

any subsequent statement by him was rendered inadmis-

sible by the initial violation of his right to remain silent.

We agree that the deicctives did not “scrupulously

honor” the defendant’s right to cut off questioning in the

first instance. (Michigan v. Mosley (1971), 423 U.S. 96,

104, 46 L. Ed. 2d 313, 321, 96 S. Ct. 321, 326.) The

cémplcte statement by the court in Mosley is “that the

admissibility of statements obtained after the person in

custody has 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. $21, 326.) We interpret that

passage, however, to include only the statement obtained

as a result of not honoring the defendant's right to cut off

questioning. We do not think the court intended that

all subsequent statements are to be excluded. Indeed,

our view is amply supported by the following passage

from Michigan v. Mosley:

“To permit the continuation of custodial inter-

rogation after a momentary cessation would clearly

frustrate the purposes of Miranda by allowing

repeated rounds of questioning to undermine the

will of the person being questioned. At the other

extreme, a blanket prohibition against the taking

of voluntary statements or a permanent immunity

from further interrogation, regardless of the cir-

cumstances, would transform the Miranda safe-

guards into wholly irrational obstacles to legitimate

police investigative activity, and deprive suspects

of an opportunity to make informed and intelli-

gent assessments of their interests. Clearly, there-

fore, neither this passage nor any other passage

eM, y

in the Miranda opinion can sensibly be read to

create a per se proscripiion of ind<finite duration

upon any further questioning by any police officer

on any subject, once the person in custody has

indicated a desire to remain silent.” (423 U.S. 96,

102-03, 46 L. Ed. 2d 313, 320-21, 96 S. Cr. 321,

326.)

Accord, (People v. Aldridge (Jan. 28, 1980), No. 51824.)

Therefore, in the instant case, the trial court was correct

in excluding evidence concerning the initial interrogation

on March 31, 1978, on the basis that the defendant's

right to cut off questioning had not been scrupulously

honored. The trial court was also correct in finding that

the admission of the written statement did not violate the

defendant’s right to remain silent. The written statement

was made 36 hours after the initial interrogation, after

the defendant had conferred with counsel several times,

after the defendant had been informed of his Miranda

rights, and after the defendant had expressly declined to

remain silent og to have counsel present. The defendant's

right to remain silent was not violated.

We also think that the defendant’s right to counsel was

properly observed. Before taking the written statement

from the defendant, the detective offered three times to

call his attomey. The defendant declined cach offer, He

expressly said the attommcy would not pennit him to say

what he wished to say to the detectives.

Finally, we do not think that the defenéant’s waiver

of the right to remain silent and the right to counsel was

defective due to the “affirmative, repeated efforts” of the

detectives to cbtain a confession. The detectives did not

coerce or threaten the defendant into speaking with them.

Moreover, mest of the attempts they made to persuade the

Gefendant to confess were made in the presence of

counsel. Lastly, it was one hour after the defendant was

placed in a cell and after his last contact with the detce-

tives that he decided to confess.

The finding of the trial court on the voluntariness of

a confession will not be disturbed unless it can be said that

it is contrary to the manifest weight of the evidence.

(People v. Aldridge (Jan. 23, 1980), No. 51824; People v.

Medina (1978), 71 Ul. 2d 254, 258.) We think the weight

of the evidence herein is that the defendant's waiver of the

right to remain silent and the right to counsel was volun-

tary, knowing and intelligent. The trial court properly

admitted the written statement.

The defendant next argues that the trial court erred

in denying his motion to preclude questions during voir

dire concerning the death penalty. The defendant asserts

is is Ce oh ca: Pas eese a rere 2 ie a et a ah Se Se

, wb :

. wet ;

. "tae

™

specifically that “death qualification” voir dire questions

result in a jury biased in favor of the prosecution in viola-

tion of the defendant’s right to an impartial trial. After

th trial court denied his motion, the defendant waived

his right to a jury trial. The defendant now argues that the

court “improperly influenced” him to waive his right toa

jury trial by denying the motion to preclude “death

qualification” questions. The Siate argues in reply that the

defendant, by waiving his right to a jury tial, has not

prescrved an issue for review.

We think that the defendant has preserved for review

the question of whether the tria! court properly denied the

motion to preclude “death qualification” questions on

voir dire. The defendant made the motion; it was denied;

and he is raising the propriety of the court’s denial on

appeal. (Sec, ¢.g., People v. Duchant (1939), 370 Ill. 650,

652.) Where we agree with the State is that, in subse-

quently waiving the right to a jury trial, the defendant

climinated the need to conduct voir dire. The defendant

cannot then assert that had voir dire been conducied, the

court would have erroncously selected a jury, in contra-

vention of Witherspoon v. Illinois (1968), 391 U.S. 510,

20 L. Ed. 2d 776, 88 S. Ct. 1770. The defendant offers no

factual basis whatsoever for this contention, and we reject

any presumption that the court would err.

The defendant’s concomitant contention is that the

court “improperly influenced” him to waive a jury trial

when it denied the motion. No act of the court prevented

the defendant from having a jury trial. If error had

occurred in voir dire, the defendant could have objected

at that point and counsel could have drawn the court’s

attention to the error. If the error was not corrected, the

defendant could raise the issue here. The defendant did

none of this. Instead he argues that he was deprived of a

jury trial because of error which might have occurred, but

did not. We will not indulge in speculation as to what

error the court might have committed, and we refuse to

assume that the spectre of speculative error influenced the

defendant to waive his right to trial by jury.

The defendant next contends that since his indictment

did not specify any one of the seven aggravating factors

which must be proved to impose the death penalty (il.

Rev, Stat. 1977, ch. 38, par. 9—1(b)), he was formally

charged with “non-capital” murder and may not be

sentenced to death. The defendant asserts that the imposi-

tion of the death penalty under these circumstances

violates Illinois case law and principles of double jeopardy.

The case the defendant principally relies upon is

People v. Ostrand (1966), 35 Ml. 2d 520. The defendant’s

relimce on Ostrand is misplaced. Ostrand involved a

conviction for unlawful use of weapons. The defendant

argued there that the trial court erred when it permitted

the indictment to stand hecause it alleged that he had

committed a prior felony within five years of the date of

the immediate offense. The unlawful use of weapons

statute (Ill. Rev. Stat. 1977, ch. 38, par. 24-1(b)) provides

that a person will be chargeable with a felony instead of a

misdemeanor when a prior felony has been committed

within five years of the immediate offense. Thus, this

court held that it was not only proper, but also necessary,

for the trial court to permit the allegation and, later, the

proof of the prior felony conviction to be admitted.

People v. Ostrand (1966), 35 Ill. 2d 520, Sce also People v.

Owens (1967), 37 Ill. 2d 131; People v. Dixon (1970) ,.46

Ill. 2d 502, 504; People v. Edwards (1976), 63 Ill. 2d 134,

138.

The defendant bases the contention that the imposi-

tion of the death sentence violates double jeopardy prin-

ciples upon the argument that the defendant has been tied

twice, first in a trial for the lesser ‘included offense of

murder and then in the sentencing hearing for the offense

of “capital murder.” The solution, posits the defendant,

lies in formally charging the defendant with all of the

clements of the offense to be proved against him, parti-

cularly the statutory aggravating factor necessary to the

imposition of the death sentence. Thus, argues the defend-

ant, since he was tried a second time, without a formal

charge for “capital” murder, the proceeding was viola-

tive of principles of Illinois law and the double jeopardy

provisions of the fifth and fourtcenth amendments to the

United States Constitution.

First of all, there is only one offense of murder in

Illinois; no distinction is made between capital and non-

capital murder. (See Ill. Rev. Stat. 1977, ch. 38, par. 9—1.)

Secondly, without holding that every indictment must

contain every aggravating factor which the State will

attempt to prove, we hold that, in the indictment involved

here, one of the aggravating factors found by the court at

the sentencing hearing was sufficiently alleged in the

indictment to fulfill the requirements of law. An indict-

ment’s allegations must be set out with such specificity or

particularity that the accused is informed of the offense

with which he is charged and enabled to prepare his

defense and, further, that he is protected against being

later prosecuted for the same crime. (People v. Gregory

(1974), 59 MM. 2d 11, 124.) The indictment satisfied the

foregoing requirements. The defendant was charged with

es ad bee Pars

the murder, aggravated kidnapping and rape of Louise M.

Betts on September 27, 1977. One of the aguravating

factors relied upon by the court in scnicncing the defend-

ant was that the defendant inientionally murdered the

victim in the course of two other felonies, aggravated kid-

napping and rape. Section 9—1(b)(6) provides:

“(b) Aggravating Factors. A defendant who at the

time of the commission of the offense has attained the age

of 18 or more and who has been found guilty of murder

may be sentenced to death if:

** +

6. the murdered individual was killed in the course of

another felony if:

(a) the murdered individual was actually killed

by the defendant and not by another party to the

crime or simply as a consequence of the crime; and

(b) the clefendant killed the murdered individual

intentionally or with the knowledge that the acts

which caused the death created a strong probability

of death or great bodily harm to the murdered in-

dividual or another; and

armed robbery, robbery, rape, deviate sexual assault,

aggravated kidnupping, forcible detention, arson,

burglary, or the taking of inclecent libertics with a

child.” (Ill, Rev. Stat. 1977, ch. 38, par. 9~1(bL)(6).)

Thus, we think the indictment’s allegations specifically and

particularly informed the defendant of the charges against

him so that he could prepare his defense aiid so that he

was fully apprised, from indictment on, that he could

potentially receive the death sentence. Since we hold the

indictment sufficiently informed the defendant of the

offenses against him and, in particular, that he might

receive the death sentence, the defendant’s contention

that principles of double jeopardy were violated loses its

force. The defendant was charged with the single offense

of murder, and has been convicted and sentenced only

once, as is wholly consistent with the guarantee afforded

by the double jeopardy provisions of the fifth and four-

teenth amendinents to the Constitution, which assure

“ “that no man can be twice lawfully punished for the

same offence.” North Carolina v. Pearce (1969), 395

711, 717, 23 L. Ed. 2d 656, 665, 89 S. Ct. 2072, 2076,

quoting Ex parte Lange (1874), 85 U.S. (18 Wall.) 163,

168, 21 L. Ed. 872, 876. There was no double jeopardy

here.

Finally, we emphasize that we are limiting our con-

clusion to one aggravating factor—that the murder was

committed in the course of other felonies, ic., rape and

aggravated kidnapping. While the issue was not raised by

the defendant, we conclude that the second aggravating

factor found by the trial court—that the murdered in-

dividual was an eyewitness or possessed other material

evidence against the defendant (JM. Rev. Stat. 1977, ch.

38, par. 9—1(b)(7)),—was not established in this case. The

court appears to have made the finding that the victim was

an cycwitness upon the evidence adduced at trial—that the

victim, as the subject of the aggravated kidnzpping and

rape, could have later testified against the defendant. We

do not think this particular factual situation was intended

by the General Assembly to be included within this

aggravating factor. Rather, we think the Gencral Assembly

intended to include situations where, during an investi-

gation or prosecution of a separate offense which has

previously taken place, a witness is killed in an attempt to

stymie the investigation or prosecution, (See Remarks of

Senator Knuppel, Ill. S. Rec., 80th Gen. Assem., June 1,

1977, at 21-25.) Otherwise, were we to adopt the trial

court’s finding, this aggravating factor could zpply in every

prosccution for murder where another offense contem-

porancously occurs because the victim could have been a

Witness against the defendant. Or, even more broadly, this

aggravating factor could apply to every prosecition for

murder since every victim, obviously, is prevented from

testifying against the defendant. We do not taink the

General Assembly intended the death penalty to be

applicd in every murder case, and, if it did, the General

Assembly could certainly find. a more direct way to

express its intent than through this aggravating factor.

Therefore we hold that the aggravating factor relating toa

murdered individual who was, or who may be, a witness

against a defendant, or who may assist in the investigation

or prosecution of a defendant, docs not include the

investigation or prosecution for the offenses which

occurred in the course of the commission of the murder

offense, including the murder offense itself.

The defendant's next two assignments of error chal-

lenge the constitutionality, under the cruel and unusual

punishment clause of the eighth amendment and the duc

process clause of the fourteenth amendment, of the

prosecutor's ability to request a sentencing hearing. The

» defendant also again argues that the indictment is defective

because the death sentence hearing is begun by the prose-

cutor without there being any formal charge of “aggra-

vated murder,” thus offending the eighth amendment.

First, as to the indictment, that issue was already

decided herein. There is no offense of “aggravated,” as

opposed to simple, murder, in Illinois. There is simply one

murder statute, which includes within it a provision for

the imposition of the death sentence. Moreover, as we have

already concluded, the defendant was adequaiely informed

that, on the basis of the charges against him, he could

possibly receive the death sentence since he was charged

with murder while in the coinmission of two other

felonies: aggravated kidnapping and rape. Therefore, the

defendant’s argument that the crucl and unusual punish-

ment clause is violated because of the insufficiency of the

indictment lacks merit.

As to the defendant’s other arguments that the prose-

cutor’s discretion to request a sentencing hearing will lead

to cruel and unusual punishment and the arbitrary and

capricious imposition of the death penalty in violation of

the cighth amendment, we belicve those issues were

addressed and resolved in our recent decision in People ex

rel. Carey v. Cousins (1979), 77 Il. 24 531. There we held

that the diserction vested in the prosccutor pursuant to

section 9—1(d) of the murder statute (IIL. Rev. Sit. 1977,

ch. 38, par. 9—1(d)) docs not offend the eighth amend-

ment because the prosecutor docs not act as the senten-

cing authority. He merely requests a sentencing hearing

dependent upon whether the requisite elements for a death

sentence exist. Also, we held that the prosecutor's discre-

tion is sufficiently guided since he will request a sentencing

hearing at the conclusion of the trial, after he will have had

the opportunity to evaluate evidence to determine whether

a sentencing hearing is, indeed, warranted.

The next contention of the defendant—that section

9—1(d) constitutes an improper delegation of legislative

authority and an improper grant of judicial scntencing

power to the executive branch+was also decided and

rejected in People ex rel. Carey v. Cousins (1979), 77 Ill.

2d 531. We need not consider it again here.

The next arguinent raised by the defendant is that the

death penalty provisions of section 9~1 offend the duc

process clause of the fourteenth amendment because they

pennit the arbitrary imposition of the death sentence,

based upon vague sentencing standards. The argument

continues that the statute does not contain guidclines or

standards as to the weight to be given the aggravating and

mitigating factors. The pertinent provisions of section 9—1

state: .

“(b) Aggravating Factors. A defendant who at the

time of the commission of the offense has attained the age

of 18 or more and who has been found guilty of murder

may be sentenced to death if:

1. the murdered individual was a peace officer or

fireman killed in the course of performing his official

duties and the defendant knew or should have known that

the murdered individual was a peace officer or fireman; or

2. the murdered individual was an employee of an

institution or facility of the Department of Corrections,

or any similar local correctional agency, killed in the

course of performing his official duties, or the murdered

individual was an inmate at such institution or facility and

was hilled on the grounds thereof, or the murdered indi-

vidual was otherwise present in such institution or facility

with the knowledge and approval of the chief adminis-

trative officer thereof; or

3. the defendant has been convicted of murdering

two or more nulividuals under subsection (a) of this Section

or under any law of the United S:ates or of any state which

is substantially similar to Subsection (a) of this Section

regardless of whether the deaths occurred as the result of

the same act or of several relaicd or unrelated acts so lung

as the deaths were the result of cither an intent to kill

more than one person or of separate premeditated acts; or

4. the murdered individual was killed as a result of

the hijacking of an airplane, train, ship, bus or other public

conveyance; or

5. the defendant committed the murder pursuant to a

contract, agreement or understanding by which he was to

receive moncy or anything of value in return for cominit-

ting the murder or procured another to commit the murder

for money or anything of value; or

6. the murdered individual was killed in the course of

another felony if:

(a) the murdered individual was actually killed

by the defendant and not by another party to the

crime or simply as a consequence of the crime; and

(b) the defendant killed the murdered individual

intentionally or with the knowledge that the acts

which caused the death created a strong probability of

death or great bodily harm to the murdered individual

or another; and

armed robbery, robbery, rape, deviate sexual assault,

aggravated kidnapping, forcible detention, arson,

burglary, or the taking of indecent liberties with a

child; or

7. the murdered individual was a witness in a Prose-

cution against the defendant, gave material assistance to the

state in any investigation or prosecution of the defendant,

Or was an eye witness or possessed other material evidence

against the defendant.

gation. The court shall consider, or shall instruct the jury

to consider any aggravating and any mitigating factors

which are relevant to the imposition of the death penalty.

Aggravating factors may include but need not be limited

to those factors set forth in subsection (b). Mitigating

factors: may include but need not be limited to the

following:

1, the defendant has no significant history of prior

criminal activity;

2. the murder was commnitied while the defendant was

under the influence of extreme mental or emotional dis-

turbance, although not such as to constitute a defense to

prosccution;

3. the murdered individual was a participant in the

defendant's homicidal conduct or consented to the homi-

cidal act;

-12-

4. the defendant acted under the compulsion of threat

or menace of the imininent infliction of death or great

bodily harm;

5. the defendznt was not personally present during

commission of the act or acts causing death.

oes

During the proceeding any information relevant to

any of the factors set forth in Subsection (b) [aggra-

vating factors] may be presented by cither the State or

the defendant under the rules governing the admission of

evidence at criminal trials. ny information relevant to any

additional aggravating factors or any mitigating factors

indicated in Subsection (c) may be presented by the State

or defendant regardless of its admissibility uncer the rules

governing the admission of evidence at criminal trials. The

State and the defendant shall be given fair opportunity to

rebut any information received at the hearing.

(f) Proof.

The burden of proof of establishing the existence of

any of the factors set forth in Subsection (b) [aggravating

factors] is on the State and shall not be satisfied unless

established beyond a reasonable doubt.

(g) Procedure—Jury. I

If at the separate sentencing proceeding the jury finds

that none of the factors set forth in Subsection (b) exists,

the court shall sentence the defendant to a term of impri-

sonment under Chapter V of the Unified Code of Currec-

tions. If there is a unanimous finding by the jury that one

or more of the factors set forth in Subsection (b) exist, the

jury shall consider aggravating and mitigating factors as in-

structed by the court and shall determine whether the

sentence of death shall be imposed. If the jury determines

unanimously that there are no mitigating factors sufficient

to preclucle the imposition of the death sentence, the court

shall sentence the defendant to death.

Unless the jury unanimously finds that there are no

mitigating factors sufficient to preclude the imposition of

the death sentence the court shall sentence the defendant

to a term of imprisonment under Chapter V of the Unified

Code of Corrections.

(h) Procedure—No Jury.

In a proceeding before the court alone, if the court

finds that none of the factors found in Subsection (b)

exists, the court shall sentence the defendant to 2 term of

imprisonment under Chapter V of the Unified Code of

Corrections.

If the Court determines that one or more of the factors

set forth in Subsection (b) exists, the Court shall consider

any aggravating and mitigating factors as indicated in

Subsection (¢). If the Court determines that there are no

mitigating factors sufficient to preclude the imposition of

the death sentence, the Court shall sentence the defendant

to death,

Unless the court finds that there are no mitigating

factors sufficient to preclude the imposition of the sentence

of death, the court shall sentence the defendant to 2 term

-13-

of imprisonment under Chapter V of the Unificd Code of

Corrections.” Ill. Rev. Stat. 1977, ch. $8, pars. 9—1(b), (c),

(e), (f). (g), (bh).

The focus of the defendant’s argument is on the word

“sufficient” in the statement that if the jury (or the

court), determines that there are no mitigating factors

sufficient to preclude the imposition of the death sen-

tence, the court shall sentence the defendant to death. The

defendant asserts that the trier of fact is not guided as to

the weight to be given the aggravating versus the miti-

gating factors. Thus, argues the defendant, the statute is

unconstitutionally vague.

We do not agree, and we think that this issue is con-

trolled by the decisions in Gregg v. Georgia (1976), 428

US. 153, 49 L. Ed. 2d 859, 96 S. Ct. 2909, Proffitt v.

Florida (1976), 428 U.S. 242, 49 L. Ed. 2d 9)3, 96 S.

Ct. 2960, and Jurck v. Texas (1976), 428 U.S. 262, 49

L. Ed. 2d 929, 96 S. Ct. 2950. In Gregg, in xn exhaustive

opinion, the Supreme Court detailed the constitutionality

of the death penalty, in general, and of the Georgia death

penalty statute (Georgia Code Ann. sec. 26-1101 (1972)

(murder)), in particular. The court held that the punish-

ment of death docs not invariably violate the Constitution

(428 US. 153, 169, 49 L. Ed. 2d 859, 872, 96 S. Ct.

2909, 2923). Also, the court held that the provision of the

Georgia act whereby the trier of fact “considers” the

aggravating and mitigating circumstances at a separate

sentencing proceeding docs not result in the capricious or

freakish imposition of the death sentence. 428 U.S. 153,

169, 49 L. Ed. 2d 859, 872, 96 S. Ct. 2909, 2923.

The court stated that “Furman [v. Georgia (1972),

408 U.S. 238, 33 L. Ed. 2d 346, 92 S. Ct. 2726,] man-

dates that where discretion is uffurded a sentencing body

on a matter so grave as the determination of whether a

human life should be taken or spared, that discretion must

be suitably directed and limited so as to minimize the risk

of wholly arbitrary and capricious action.” (Gregg v.

Georgia (1976), 428 U.S. 153, 189, 49 L. Ed. 2d 859,

883, 96 S. Ct. 2909, 2932.) The court went on to con-

clude that while the process whereby the sentencing

authority weighed the aggravating circumstances, proved

beyond a reasonable doubt, against the mitigating circum-

stances, is by necessity somewhat general, it provides

guidance to the sentencing authority and reduces the

likelihood that the death sentence will be imposed capri-

ciously or arbitrarily. (Gregg v. Georgia (1972), 428 U.S.

153, 193-95, 49 L. Ed. 2d 859, 886, 96 S. Ct. 2909,

-14.

‘Ten

2935.) The court further said that the safeguard of

meaningful appellate review, taken together with the

requirement that the sentencing authority specify the

factors it relied upon to reach its decision, would further

insure that death sentences are not imposed czpriciously

or in a freakish manner. 428 U.S. 153, 195, 49 L. Ed. 2d

859, 886-87, 96 S. Ct. 2909, 2935.

Proffitt v. Florida (1976), +28 U.S. 242, 19 L. Ed. 2d

913, 96 S. Ct. 2960, may be even more pertinent since

there, as here, the court imposed the death sentence; in

Gregg the jury sentenced the defendant to death. The

court upheld the Florida statute as constitutional. Under

that statute (Fla. Stat. Ann. sec, 782.04 (Supp. 1979)

(murder)), a jury may hear evidence in a heating separate

from the trial. At the conclusion of the hearing the jury

considers “[w]hether sufficient mitigating circumstances

exist *** which outweigh the aggravating circumstances

found to exist; and *** [b] ased on these considerations,

whether the defendant should be sentenced to life im-

prisonment or death.” (Fla. Stat. Ann. secs.

921.141(2)(b), (c) (Supp. 1979).) The jury’s verdict is

determined by majority vote. It is only advisory, the actual

sentence is detcrmined by the trial court. The court also is

required to weigh the statutory aggravating and mitigating

circumstances before imposing sentence. There is auto-

matic review by the Supreme Court of Florida, though

unlike Georgia, review necd not take any specific form.

The gist, therefore, of the Georgia, Florida and Texas

Statutes is that the sentencing authority, be it judge or

jury, “must focus on the individual circumstances of each

homicide and cach defendant” (Proffitt v. Florida (1976),

428 U.S. 242, 252,49 L. Ed. 2d 913, 922, 96S. Ct. 2960,

2966; sce also Gregg v. Georgia (1976), 428 U.S. 153, 199,

49 L. Ed. 2d 859, 96 S. Ct. 2909, 2937; Jurck v. Texas

(1976), 428 U.S. 262, 271, 49 L. Ed. 2d 929, 938, 96 S.

Ct. 2950, 2956), which necessarily entails that weight be

given to mitigating as well as aggravating circumstances

where the death sentence might be imposed. Lockett v.

Ohio (1978), 438 U.S. 586, 604, 57 L. Ed. 2d 975, 990,

98 S. Cr. 2954, 2965.

The Jllinois statute certainly falls within the rule set

down by the Supreme Court. Sections 9—1(g) and (h)

provide that, once the State has proved the existence of

any of the aggravating factors (Ill. Rev. Stat. 1977, ch. 38,

par. 9-1(b)), beyond a reasonable doubt (Ill. Rev. Stat.

1977, ch. 38, par. 9~1(f)), a unanimous jury or the court

must weigh the mitigating factors against the aggravating

factors and must conclude that no mitigating factors

sufficiently preclude the imposition of the death sentence.

Without doubt, a balancing process is required; while the

> «ss >

2, Tan

precise Weight to be given cach aggravating and mitigating

factor is not made o matter of numerical calculation, that

is not a Constitutit! —° infirmity. Rather, since the sen-

tencing authority is: ° + specific evidence to weigh, based

“ ‘discretion to be exercised is controlled by clear and

objective standards so as to produce non-discriminatory

application.’ Gregg v. Georgia (1976), 428 U.S. 153,

198, 49 L. Ed. 2d 859, SSS, 96 S. Ct. 2909, 2956, quoting

Coley v. State (1974), 231 Ga. 829, 834, 204 S.F..2d 612,

615. As stated in Proffitt: “While the various factors to

be considered by the sentencing authorities do not have

nuinerical weights assigned to them, the requirements of

Furman are satisfied when the sentencing authority’s

discretion is guided and channeled by requiring examina-

tion of specific factors that argue in favor of or against

imposition of the death penalty, thus eliminating total

arbitrariness and capriciousness in its imposition.” Proffitt

v. Florida (1976), 428 U.S. 242, 258, 49 L. Ed. 2d 913,

926, 96S. Ct. 2960, 2969.

Several mitigating factors were considered by the

court. It made the following findings: The court found, as

factors not enumerated in the statute, that the defendant

voluntarily confessed to the offenses of which he was

convicted; that the defendant had a stable work record,

held a responsible job and supported his family; that the

defendant served in the armed forces and was honorably

discharged; that the defendant might receive aid from his

family; and that the defendant had stated that he posses-

sed religious convictions. The court also made findings as

to the absence of statutory mitigating factors. Specifically

the court found that the defendant was “personally

present during the commission of the act[s]” causing

death; that the defendant did not act “under compulsion

of threat, or menace of the imminent infliction of death or

great bodily harm”; that the murdered individual was not

“a participant in the defendant's homicidal conduct” or

consent to the defendant's homicidal act; that the defend-

ant did not act under the influence of an extreme mental

or emotional disturbance but rather by “a deliberate

methodical design”; and, finally, that since the defendant,

at the time of sentencing in this matter, had been recently

convicted of, but not sentenced for, attempted murder and

rape in the circuit court of Winnebago County, and had a

history of lesser offenses, the defendant had a significant

history of prior criminal activity.

The trial court found beyond a reasonzble doubt the

existence of two aggravating factors. We have upheld the

finding of the court that «a murder was committed in the

™

course of the felonies of aggravated kidnapping and rape.

The other aggravating factor found by the court we have

concluded, as a matter of statutory interpretation, did not

exist. Thus, we deem it necessary to a complete and fair

sentencing hearing that we vacate the sentence of death

and remand this cause to the circuit court for a new

sentencing hearing, as to the imposition of the death

penalty only; the sentences for the other offenses will

stand. The partial resentencing hearing is essential because

of the profound importance we attach to the trial court’s

role in weighing aggravating and mitigating factors. In this

instance, the trial court weighed an aggravating factor

which we have concluded figured erroneously in the

court’s sentencing decision. We have now removed that

factor from the scale. Whether the scale will remain stable

or will tip as a result of our conclusion is initially for the

trial court to determine. For us cither to affirm or reverse

the trial court’s sentence, without providing the trial court

an opportunity to resentence in light of our conclusion of

law, would usurp the trial court’s function as the senten-

cing authority. Needless to say, we in no way intimate

what the trial court’s sentence, upon remand, should be.

That decision must be left to the trial court since it was

the court which saw and heard the evidence and is best

able to smpose an appropriate sentence.

The next issue we consider is whether the defendant's

waiver of a jury proceeding at the sentencing hearing was

knowing and understanding. The defendant specifically

avers that the defendant was not aware that one juror’s

belief that no aggravating factor had been established

beyond a reasonable doubt, or that a mitigating factor

sufficient to preclude the imposition of the death penalty

had been proved, “would terminate the death penalty

proceedings against him.” Without deciding whether a

defendant must always be made aware of the foregoing

before he may make a knowing waiver of a jury pro-

ceeding, we conclude that the record reveals that the

defendant in this case was so informed by the court:

“THE COURT: Let me explain to you that there is

a very important provision in the law which states that you

have a right to have a trial by jury on the question of

whether a death penalty is to be imposed. That right can-

not be taken away from you untess you actually knowingly

waive the right to have a jury wial. If you waive the right

then a Judge will hear the same evidence that would be

heard before a jury. However, instead of having twelve

jurors reach a unanimous verdict of 12--0 the Judge alone

would make the decision upon hearing the evidence. If you

wish to avail yourself of the right to have the jury triai you

are entitled to do that. Is that essentially what has been

explained to you by your Attomeys?

DEFENDANT: Yes, cornpletely.” (Emphasis added.)

-)?-

eae

We perceive that the foregoing, especially the phrase

“unanimous verdict of 12-0," amply informed the de-

fendant of the fact that one juror’s belief tha: the statu-

tory requirements had not been met could preclude the

imposition of the death sentence. Moreover, the defendant

was ably represented by counsel, who explained the pro-

cedure to the defendant. We think the defendant made a

knowing and understanding waiver of the right to have a

jury proceeding.

We next tum to the defendant’s contention that the

trial court erred in the sentencing hearing when it con-

cluded that the defendant had proved no mitigating factor

sufficient to preclude imposition of the death sentence.

Specifically the defendant argues two points: first that

proof of any one of the five statutory mitigating factors

always precludes the imposition of the death sentence;

and, second, that the defendant proved the existence of

the following statutory mitigating factor: “the murder was

comunitted while the defendant was under the influence

of extreme mental or emotional disturbance, although not

such as to constitute a defense to prosecution.” (Ill. Rev.

Stat. 1977, ch. 38, par. 9—1(c)(2).) Thus, argues the

defendant, he may not be sentenced to death.

We do not agree that the proof of one statutory miti-

gating factor always precludes the imposition of the death

sentence, as defendant contends. We have reviewed

the remarks made on the fluor of the Ilinvis House of

Representatives which defendant claims support his

contention, We do not think they are controlling, because

the statute itself provides a weighing process is to be per-

formed between the aggravating and mitigating factors.

(Ill. Rev. Stat. 1977, ch. 38, pars. 9—-1(g), (h).) Moreover,

the Supreme Court, in interpreting statutes similar to our

own, has repeatedly and approvingly emphasized that a

weighing process must take place. (Gregg v. Georgia

(1976), 428 U.S. 153, 49 L. Ed. 2d 859, 96 S. Ct. 2909;

Proffitt v. Florida (1976), 428 US. 242, 251, 49 L. Ed.

2d 913, 922, 96 S. Ct. 2960, 2966; Lockett v. Ohio

' (1978), 438 U.S. 586, 608, 57 L. Fd. 2d 973, 992, 98 S.

Ct. 2954, 2966-67.) Therefore, we hold that the proof of

one mitigating factor, by itsclf, will not always preclude

the imposition of the death sentence. Instcad, the senten-

cing authority should carefully weigh the factors, aggra-

vating and mitigating, in order to veach a fair and just

result, one that is based on the particular circumstances of

the offense and the defendant. See Proffitt wv. Florida

(1976), 428 U.S. 242, 252, 49 L. Ed. 2d 913, 922, 96 S.

Ct. 2960, 2966.

We now consider the defendant's second argument,

that the court erred in finding that the defendant was not

ee Tt

a * a a

under the influence of an extreme mental or emotional

disturbance at the time the murder was committed. At the

sentencing hearing, the court heard the testimony of four

psychiatrists. One of the doctors, Albert H. Stipes,

described the defendant to be suffering from “[s] chizo-

phrenia, latent type and multiple sexual deviations.” The

doctor further testified that the defendant has acted

under extreme mental disturbunce most of his life, parti-

cularly Curing times of stress. The doctor also stated that

the defendant has a personality disorder which may show

itsclf by rage. In addition, the doctor testified that the

defendant was under an extreme mental disturbance at the

time he committed the murder, one which was caused by

a “build-up” of stress. However, the doctor testified he

was told nothing by the defendant about the cause of any

stress the defendant may have been experiencing on the

night the murder was committed.

Dr. Leroy Levitt was also called by the defendant to

testify. He stated that he diagnosed that the defendant had

“a severe personality disorder, passive-aggressive type, with

multiple sexual deviances.” Dr. Levitt also agreed with Dr.

Stipes’ testimony that the defendant suffers from stress

which results in an uncontrollable need to discharge his

feclings. Dr. Levitt further stated that the defendant acted

under an extreme mental disturbance at the time of the

murder in that his violent reaction to stress is much greater

than for many other people. The ductor additionally said

that he did not know and did not ask the defendant what

precipitating event causcd the defendant to murder the

victim.

The State called Dr. J. G. Graybill to testify as a re-

buttal expert witness. Dr. Graybill agreed with the other

two witnesses that the defendant is of a “passive-aggressive

personality with sexual deviation.” Dr. Graybill did not,

however, belicve the defendant acted under the influence

of an extreme mental or emotional disturbance at the time

of the murder. Lastly, Dr. Carl Hamann was called to

testify. He diagnosed the defendant’s condition as a

character disorder, passive-aggressive personality with

sexual devjation, a personality disorder. Dr. Hamann also

offered the opinion that the defendant was not under the

influence of an extreme mental or emotional disturbance

at the time of the murder.

The court in sentencing the defendant stated that, in

its view of the testimony of the four expert witnesses and

the other evidence, there was no showing that on Septem-

ber 22, 1977, the defendant was under the influence of an

extreme mental or emotional disturbance. The court con-

cluded that the menner in which the defendant comported

himself before, during and after the murder indicated a

“deliberate methodical design.”

There is no reason to set side the finding of the trial

judge. It is supported by the evidence. While in a case of

this gravity this court will make a separate evaluation of

the record, we should not lightly overturn the findings of

the trial court, particularly when they are amply supported

by the record. (Sec, ¢.g., People v. Myers (1966), 35 Il. 2d

311, 340-41.) Therefore the finding of the trial court that

the defendant did not commit murder while under the

influence of an extreme mental or emotional disturbance

will be sustained.

Another contention made by the defendant is that the

trial court erred when it denied his motion for the appoint-

ment of experts to con pile data and to testify concerning

the proportionality of ...s sentence and his prospects for

rchabilitation. Defendant’s motion alleged such testimony

was necessary in order to provide an adequate basis for this

court’s review, apparently so that we might be beiter able

to determine whether death sentences were being imposed

“in an arbitrary and capricious manner” or “to a particular

type of defendant.” While we agree that the Supreme

Court envisages, as defendant phrases it, a “proportionality.

review” by us, we do not interpret Gregg ¢. Georgia

(1976), 428 U.S. 153, 49 L. Ed. 2d 859, 96 S. Cr. 2909,

Proffitt v. Florida (1976), 428 U.S. 242,49 L. Ed. 24 915,

96 S. Ct. 2960, or Jurck v. Texas (1976), 428 U.S. 262,

49 L. Fd. 2d 929, 96 S. Cr. 2950, as requiring that review

to be predicated upon expert testimony. Defendant has

not indicated, nor do we perceive, how such testimony can

be of material assistance to cither the trial judge or us. The

imposition of sentence in a murder case is a judicial

function, the performance of which would not normally

be assisted by expert testimony as to what would consti-

tute a “proportional” sentence in a given case. And we, of

course, in reviewing all death cases will be in a position to

insure a reasonable degree of rationality and consistency.

The trial court in this case did provide funds for the

services of a psychiatrist, Dr. Albert Stipes, and a psy-

chologist. The defendant made no mention during the

hearing on his motion of his need for the probation and

parole expert, and it seems clear that, even if that testi-

mony were admissible, defendant has established neither

the need therefor nor prejudice due to its absence.

The final assignment of error raised by the defendant

is whether section 9-1 of the Criminal Code of 196)

(Ill. Rev. Stat. 1977, ch. 38, par. 9—1) offends the cighth

and fourteenth amendments to the United States Constitu-

tion because it docs not provide adequate appellate review

procedures to prevent the arbitrary imposition of the

death penalty.

Specifically, the defendant argues that the Illinois

death penalty statute is defective conceming appellate

-20.

;

review because it docs not reenire a comparison by this

court of all the cases in which the death sentence is im-

posed to determine if the death sentence is being imposed

uniformly throughout the State. Additionally, the defend-

ant argues that the Illinois statute docs not provide for

adequate review because it docs not require the sentencing

authority to muke written findings as to the aggravating

and mitigating factors relied upon by the judge or jury

in imposing the death sentence. We conclude that the

automatic appellate review procedure authorized under the

statute is constitutional. Section 9—1(i) provides:

“(i) Appellate Procedure.

The conviction and sentence of death shall be ~

subject to automatic review by the Supreme Court. Such

review shall be in accordance with rules promulgated

by the Supreme Court.” Ill, Rev. Stat. 1977, ch. 38, par.

9—1(i).

This court has promulgated new rules or has amended

existing rules to comply with the statutory directive. (Sce

73 Ill. 2d Rules 603, 606(a), 607(a), 609(a), 611(a),

613(a).) These rules apply respectively to automatic

appeal to the Supreme Court, automatic perfection of

appeal in cases in which the death sentence is imposed,

appointment of two attorneys for indigent defendants,

an automatic stay of sentence until final order of this

court, priority in oral argument, and, finally, the mandate

of this court, affirming, reversing or modifying the judg-

ment of the trial court. In addition, Rule 615 sets forth

a range of powers of a reviewing court from taking cogni-

zance of crrors or defects affecting substantial rights even

though they were not brought to the attention of the

trial court, to reducing the punishment imposed by the

trial court. (73 Ill. 2d R. 615.) This court is empowered

to do substantial justice in any case, including cases

where the death sentence has been imposed. Thus the

defendant’s argument that scction 9—1(i) offends the

eighth and fourteenth amendment because it permits

arbitrary imposition of the death penalty is substantially

weakened.

Morcover, we view the Supreme Court's statements in

its recent decisions on the constitutionality of other

States’ death penalty statutes to be dispositive. In Gregg

v. Georgia (1976), 428 U.S. 153, 198, 49 L. Ed. 2d 859,

888, 96 S. Ct. 2909, 2937, the court approved the Georgia

review procedure which requires that the Supreme Court

of Georgia em>loy a staff of persons to compare Georgia

cases in which the death sentence has been imposed.

That statute (Georgia Code Ann. sec. 27-2537 (Supp.

1975)) also requires that the court specify in its opinion

which cases it took into consideration. Finally, the statute

-21-

Y tak

requires the court to “review every death sentence to

determine whether it was imposed under the influence of

passion, prejudice, or any other arbitrary factor, whether

the evidence supports the findings of a statutory aggrava-

ting circumstance, and ‘[w]hether the sentence of death

is excessive or disproportionate to the penalty imposed

in similar cases, considering both the crime and the defend-

ant.’ (Gregg v. Georgia (1976), 428 U.S. 153, 204

49 L. Ed. 2d 859, 892, 96 S. Cr. 2909, 2939.) The Georgia

statute also requires the sentencing authority to make

written findings as to the “aggravating circumstance

or circumstances which it found beyond a reasonable

doubt.” (Ga. Code Ann. sec, 27—2534.1(10)(c) (Supp.

1975).) We think it significant to note, however, that

while the court approved of the Georgia statutory review

procedures in Gregg, it also approved of the less complex

procedures provided for in the Florida and Texas death

penalty statutes. See Proffitt v. Florida (1976), 428

US. 242, 258, 49 L. Ed. 2d 915, 926, 96 S. Ct. 2960,

2969; Jurck v. Texas (1976), 428 U.S. 262, 276, 49 L.

Ed. 2d 929, 941, 96S. Ct. 2950, 2958.

.The court stated in Proffitt: “While it may be true that

[the Florida Supreme Court] has not chosen to formulate

a rigid objective test as its standard of review for all cases,

it docs not follow that the appellate review process is

ineffective or arbitrary.” (428 U.S. 242, 258, 49 L. Ed.

2d 913, 926, 96 S. Cr. 2960, 2969.) The same was held

as to the Texas statute. In Jurck it was concluded: “By

providing prompt judicial review of the jury’s decision in

a court with statewide jurisdiction, Texas has provided

a means to promote the evenhanded, rational, and con-

sistent imposition of death sentences under law.” (428

U.S. 262, 276, 49 L. Ed. 2d 929, 941, 96 S. Ct. 2950,

2958.) The same may be said of the review which will

be accorded cach similar case before this court. The

entire record undergoes scrutiny for errors and defects.

The sentencing hearing is reviewed with the object of

ascertaining whether any aggravating factors are proved

beyond a reasonable doubt. In fact, in the instant case,

we have vacated as a matter of law the finding of the

trial court that one of the aggravating factors existed.

Our review of the entire record also considers whether

there are no mitigating factors sufficient to preclude the

imposition of the death sentence. There is no indication

whatsoever that, in this case or any other, our scrutiny

of the record and of the propricty and proportionality

of the sentence imposed will not be as vigorous and as

observant of constitutional principles as it is required

to be.

As to the written findings of the sentencing authority,

it is true they are not statutorily mandated. However, in

this case, the transcript of the court’s findings in the

sentencing hearing provides this court with as equal an

opportunity to review the validity of the findings as

would written findings.

In the instant case, we are of the opinion that no

prejudicial error was commited at trial and that the sen-

tences imposed by the court for the offenses of aggravated

kidnapping and rape are justified. The sentence of death

is vacated, pending resentencing, in light of our conclusion

that one aggravating factor was erroncously included in

the court’s sentencing decision. In all other respects the

judgment of the circuit court of Boone County is affirmed.

Affirmed in part and reversed

in part; sentence vacated;

cause remanded.

SAD-Elgin

ILLINOIS SUPREME COURT

CLELL L. WOODS, CLERK

SUPREME COURT SLILOING

SPRINGFIELD. ILL. 62706

(217) 762.2235

May 29, 1980

State Appellate Defender a

Second Judicial District gece

63 Douglas Street -2 4030

Elgin, Illinois 60120 W eyeatth

ey gle PEEL

44 , oyyat PAU

gyeitt gy Wit yy, H™

No. 51646 - People State of Illinois, appellee, vs. Curtis

Brownell, appellant. Appeal, Circuit Court

(Boone).

The Supreme Court today denied the petition for

rehearing in the above entitled cause. The first page of the

opinion was modified upon denial of petition for rehearing

and a copy of said page is enclosed.

Very truly yours,

Call (, Weeds

Clerk of the Supreme Court

Docket No. 51646—Agenda 5—November 1979.

THE PEOPLE OF THE STATE OF ILLINOIS, Appellee,

v. CURTIS J. BROWNELL, Appellant.

MR. JUSTICE CLARK delivered the opinion of the

court:

In a five-count indictment the defendant, Curtis J.

Brownell, was charged with the murder, aggravated kid-

napping and rape of Louise M. Betts. Count I charged that

the defendant “committed the offense of murder, in

that he, without lawful justification and with the intent

to kill Louise M. Betts, strangled” her and thereby caused

her death. (Ill. Rev. Stat. 1977, ch. 38, par. 9—1(a)(1).)

Count II charged that the defendant committed murder

by strangling Louise M. Betts, knowing that “such act

created a strong probability of death or great bodily

harm.” (Ill. Rev. Stat. 1977, ch. 38, par. 9—1(a)(2).)

Count III charged the defendant with felony murder in

that he killed the decedent while attempting or commit-

‘ting the forcible felony of rape (Ill. Rev. Stat. 1977, ch.

38, par. 9—1(a)(3)). Count IV charged the defendant with

committing the offense “of Aggravated Kidnaping, in that

he, in committing the offense of kidnaping, in violation of

IUinois Revised Statutes, chapter thirty-cight, section

10—1(a)(2), knowingly and secretly confined Louise M.

Betts against her will and inflicted another felony, to wit:

Rape, upon her.” Count V charged that the defendant

“committed the offense of Rape, in that he, a male person

of the age of 14 years and upwards, ha’ xual intercourse

with Louise M. Betts, a female not his wife, by force and

against her will.” Ill. Rev. Stat. 1977, ch. 38, par. 1 1—1(a).

On September 13, 1978, after a bench trial, the

defendant was found guilty of counts I, Ill, IV, and V

by the circuit court of Boone County. Count Il was dis-

missed on the motion of the State. The judgment of

conviction under count III was subsequently vacated.

A final judgment of conviction was entered as to counts

I, IV and V.

The State requested a sentencing hearing for the

purpose of imposing the death penalty pursuant to sec-

tion 9—1(d) of the Criminal Code of 1961 (Ill. Rev. Stat.

1977, ch. 38, par. 9—1(d)). The defendant waived a jury

proceeding. and elected to be sentenced by the court.

The court sentenced the defendant to two concurrent

terms of 30 to 90 years in the penitentiary for the offenses

of aggravated kidnapping and rape. The court found that

based on the evidence adduced at trial wo aggravating

factors had been established—that the murdered individual

was killed in the course of wo other felonie

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