# Petition — Brownell v. Illinois

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition
- **Published:** January 1, 1980
- **Citation:** 449 U.S. 811

## 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 .

1
RIE 6 ee ee a he ee Bia 8 1
1
3

Statement of the BOs oes ek eT Se Boe SUS

Reasons for Granting the Writ Hee Nara Rt oa ag

I.

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]

ii

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,

et

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.

iv

Sec.

921.141(1) .

6-2
9-1

1682,

495,

2568,

37.071 (a)

L.

19

34

35,

27

10,

4l,

27

17,

22,

20

35

41
41
34
20,
41

36, 41

21

42, 43

21

26

25

41

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):

(c) Consideration of factors in Aggravation
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
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by AY;

a
*

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)

B.

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.

C.

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)

D.

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

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.
A.

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=

ae a 1
ome Rug am eo

, se

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 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-

n

™

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

ty

a
hk

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.

a

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 «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
upon the purticula:, © circumstances of the case, any
“ ‘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

Se

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

APPENDIX C

pp

——=-

_time he gave the statement. :

*

STATE OF ILLEROIS
IN THE CIRCUIT COURT OF THE 17TH JUDICIAL CIRCUIT
COUNTY OF BOONE

PEOPLE OF THE STATE OF ILLINOIS, )
Plaintiff,
VS. 78-CF-37
CURTIS J. BROWNELL, ]
Defendant. ORDER

This cause coming on to be heard on the Defendant's Motion to
Suppress Statements, the court having heard the evidence end arguments of }
counsel, finds as follows:
: 1. There is no sufficient evidence of coercion to result in an
order suppressing the written statement given in this case.
2. The defendant did wish to make a statement to the police
in the early morning hours of April 2; 1978 and had desired to do such for

anywhere from 12 to 24 hours preceding that time.

‘
7

3. Considering all of the evidence leading up to the giving of
the statement, the defendant knowledgeably and voluntarily made the written
statement, which has been marked and identified at this hearing as People's .-
Exhibit #2.

4. Defendant had adequate opportunities to discuss the giving.

of said statement with his attorney, his minister, and his wife prior to the

5. Although the defendant was in 2 mental state of distress, -
this distress did not result from any police coercion or activity and was
not of such magnitude as to prevent the defendant from understanding the
nature and consequences of his waiver and statement to the police.

6. Defendant was fully and completely edvised of’ his miranda

rights prior to the statement, he understood those rights, and he made a

knowing and understanding waiver of those rights prior to giving this sta
to the police.

gt I

— oe oma

7. The statement given to the police by the defendant which has —
been marked end identified for purposes of this hearing as People's Exhibit
#2 was given freely and voluntarily by tie defendant.

8. Any oral statements made by the defendant or physical |

reactions at the time of his questioning by the police on March 31, 1978, which
followed his request to speak to an attorney are inadmissible because an
attorney was not provided for the defendant.

IT IS THEREFORE ORDERED BY THE COURT that the Defendant's Hotion
to Suppress written and oral statements is denied as to the statement given
by the defendant on April 2, 1978, which has been marked and identified as’
People's Exhibit #2 for purposes of this hearing.

IT IS FURTHER ORDERED BY THE COURT that the Defendant's Motion
to Suppress written and oral statements is granted as to the showing of the

photograph of Louise Betts to the defendant on March 31, 1978 and any state-

ments or reactions by the defendant following his request to speak to an -
attorney on that date are suppressed.

Dated: July 3, 1978.

ENTER:

JUDGE

Nov 4, WIG nee. Pee FAM Tei

C79 = CEM

-2-

pct aeigees, oN

APPENDIX D

Ill. Rev. Stat., 1977, Ch. 38, $9-1:

fa) 2 Person who kills an individual without lawful
justification comnits murder if, in performing the
acts which cause the death:

(b)

(1) He either intends to %i11 or do great bodily
harm to that individual Or enother, or knows that
such acts will cause death to that ingividual or
another; or '

(2) He knows that such acts create a strong
probability of death or great bodily harm to
that individual or another: or

(3) He is attempting or committing ‘a forcible
felony other than voluntary manslaughter.

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 killed on the grouncs thereof, or the
murdered individual was otherwise present in
such institution or facility with the knowledge
and approval of the chief eacministrative officer
thereof; or

3. the defendant has been convicted of murdering
two or more individuals under subsection (a) of
this Section or under any law of the Unitea

either an intent to kill more than one person or
of separate premeditatea acts; or

4. the murdered individual was killed os 5 result
of the hijacking of an airplane, train, ship,
bus or other public conveyance; or

5. ® defendent comnitted the murder pursuant to

a contract, agreement or uncerstending by which he
was to receive money or anything of value in return
for committing the murder or procured enother to
comait the murder for money or anything of value; -
or

oo gut ith Os ae tse es of

B. the defendant was convicted after a trial
before the ¢ ‘rt sitting without a jury: or

Cc. the court for good cause shown discharses
the jury that determined the Cefendant's guilt;
or

3. before the court alone if the defendant waives a
jury for the sepatate proceeding.

(e) Evidence and Argument. During the proceeding any
information relovant to any of the factors set forth :
in Subsection (b) say be presented by either the State 5
or the defendant under the rules governing the edmission

of evidence at criminal trials. Any information relevant
to any additional eogravating factors or any mitigating
factors indicated in Subsection (c) may be presented by

the State or defendant regardless of its admissibility
under the rules governing the admission of evidence at
criminal trials. The State end the Gefendant 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) is on the Stete ang shall not be satisfied unless
established beyond a reusonable doubt.

(9) Proceduvre--Jury. If et the BCparate sentencing
proceeding the jury finds that none of the factors sect
forth in Subsection (b) exists, the court shal] sentence
the defendant to a term of imprisonment under Chapter

V of the Unified Code of Corrections.! If there is

& unamimous 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
instructed 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 preclude the imposition of the death sentence, the court
shall sentence the Jefendant 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. Ina 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 a term of imprisonment under Chapter Vv
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 eggravating and mitigating factors as indicated in

Subsection (c). 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 a term of
‘ imprisonment under Chapter v of the Unified Co4e of

é Corrections. —~
%

chapter 38, Section 1005-1-1 et seq. a
ee ail

od 6. the murdered individual was killed in the course
of another felony if: ae

(a) the murdered individual was ectually
killed by the defendcent and not by enother
party to the crime or Simply as a consequence
of the crime; end ae
(b) the defendant killed the murdered indivieéual
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 ,

(c) the other felony was one of the following:
armed robbery, robbery, rape, deviate sexval
assault, aggravated kidnapping, forcible
detention, arson, burglary, “r the taking of
indecent liberties with a child; or

7. the murdered individual was a witness in a
prosecution 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.

(c) Consideration of factors in Aggravation and Mitigation..

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. 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:

i. the defendant has no significant history of
prior criminal activity;

2. ° the murder was comnitted while the defendant was
under the influence of extreme mental or emotional
disturbance, although not such as to constitute a
defense to prosecution;

) 3. the murdered individual was a participant in
the defendant's homicidal conduct or consented
to the homicidal act;

4. the defendant acted under the compulsion of,
threat or menace of the imninent infliction of
death or great bodily harn;

S. the defendant wes not personally present dvring

commission of the act or acts causing death.

(6) Separate sentencing hearing. Where requested by the
State, the court shall conduct oa separate sentencing
proceeding to determine the existence of factors set forth
in Subsection (b) and to consicer any aggravating or
mitigating factors as indicated in Subsection (c). The
proceeding shall be conducted:.

1. before the jury that determined the defendant's

guilt; or

2. before a jury impanelled for the purpose of |
the proceeding if: A

A. the defengant wes convicted upon a plea
of guilty; or

(i) Appellate Procedure. The conviction ana sentence of

Geath shall be subject to entomatic review by the Supreme

Court. Such review shall be in accordance with rules “
promulgated by the Supreme Court.

(j) Disposition of reversed death sentence. In the event
that the death penalty in this Act is hela to be unconstitu-
tional by the Supreme Court of the United Stetes or of the
State of Illinois, any person convicted of murder shall be
sentenced by the court to a term of imprisonment under
Chapter V of the Unified Code of Corrections.

In the event that any Geath sentence Pursuant to the
sentencing provisions of this Section is declaree
unconstitutional by the Supreme Court of the urited
States or of the State of Illinois, the court having
jurisdiction over a person Previously sentenced to’
Geath shall cause the defendant to be brought before

the court, and the court Shall sentence the Gefendant

to a term of imprisonment under Chapter V of the Unified
Code of Corrections. :

Ill. Rev. Stat., 1977, Ch. 38, §1005-5-3(c) (1):

When a defendant is found guilty of murder the State "
may either seek a sentence of imprisonment under

Section 5-8-1 of this Code, or where appropriate seek

a sentence of death under Section 9-1 of the Criminal

Code of 1961.

De eae ae ED a, neta ae aera ortenntinen iam eaaere enemas

APPENDIX E

LIST A
Prosecutor requested hearing, then

adjourned it while jury deliberating.

People v. Hipkins, Ill. Ct. App. (3rd Dist.)
(Appeal pending)

People v. Robinson, Ill. Ct. App. (3rd Dist.)
(Appeal pending)

LIST B
Sentencing authority refused to
authorize imposition of death sentence.

People v. Earl Allen, Cook County, appeal pending
to the Appellate Court, lst District, No.
80-266 (double murder) (bench); 100-300 years;

People v. Thomas Crowder, Cook County, No. 78-I-7198
awaiting hearing on post-trial motions (murder-
aggravated kidnapping) (jury); 60 years;

People v. Donald Winston, DuPage County, No. 79CF1651,
awaiting hearing on post-trial motions (murder-
robbery) (jury);

' People v. Jesse Goodman, Winnebago County, No. 79CF739,

appeal pending to the Appellate Court, 2d District
(murder-armed robbery) (bench);

People v. Gregory Bush, St. Clair County, appeal pending
to to the Appellate Court, 5th District, No. 80-70
(double murder) (jury).

Prosecutor declined to request

capital sentencing hearing where

aggravating factor(s) present.

People v. Vlasios Karas, Cook County; on appeal
to the Appellate Court, lst District, No.
78-1563 (double murder); 100-300 years;

People v. Kenneth Adams, Cook County, appcal pending
to the Appellate Court, Ist District, No. 79-565
(double murder, rape-murder); State sought penalty
as to two co-defendants: Dernis Willians was
sentenced to die; Willie Rainge was sontencea *o
natural life; Kenneth Adams, to 75 years;

. ~ ean |
eo ae en) eC” a eee ee ee ee eee ee ee OPI ae ey

People v. Jimmie Lee Schlemn, Menard County, avpeal
pending to the Apoellate Court, 4th District,
No. 15440 (double murder); 76 years;

People v. Jerome Hawkins, St. Clair County No. 77CF550,
affirmed on appeal to the Appellate Court, 5th
District, No. 78-243 (murder-armed robbery); 14-20 years;

People v. Gregory Bowman, St. Clair County, avpeal
pending to the Appellate Court, Sth District,
No. 80-29 (murder-rape); Life;

People v. Randall Keagbine, Pope County, affirmed on
appeal to the Appellate Court, Sth District,
No. 78-288 (murder-armed robbery); 38 years.

People v. Tony Issac, Cook County, appeal pending to
the Appellate Court, Ist Distrcit, No. 79-1529
(muk Qer-aggravated kidnapping); 26 years;

People v. Edward Wierzbicki, Cook County, appeal pending
to the Apvellate Court, lst District, No. 80-284
(murder-agyravated kidnapping); 80 years;

People v. Ellis McInnis, Cook County, avpeal pending
to the Appellate Court, lst District, No. 79-27
(murder-armed robbery) ; 25-40 ycars;

People v. Bernard Cooper, Cook County, appeal pending
to the Appellate Court, Ist District, No. 79-1911
(murder-armed robbery-aygravated kidnapping); 100-200 years;

People v. Johnny licKibbons, Cook County, appeal pending
to the Appellate Court, Ist District, No. 79-2414
(murder-armed robbery) ; 40 years;

People v. Mary Eadler, Kane County No. 78CF58637; appeal
. pending to the Appellate Court, 2d District, No.
" 79=366* (murder-arnmed robbery); 20 years;

People v. Duane Ingram, Winnebago County No. 76CF309, "3
appeal pending to the Appellate Court, 2d District,
No. 79-327 (murder-armea robbery); 20-50 véars;

People v. Orlando Moore, Winnebago County No. 77/10CF466,
appeal pending to the Appellate Court, 2d District,
No. 78-353 (murder-rave); 25-50 years;

People v. David Ulrich, Winnebago County No. 78CF386, appeal
pending to the Appellate Court, 2d District, no. 79-166
(murder-armed robbery); 45 years;

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385007_1745%3A1. Public record. Not legal advice.