Petition — James v. Illinois
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No.
RECEIVED
80 Be 57 9 9 UrC 1 Wey
OFFICE OF THE CLERK
IN THE SUPREME COURT, U.S.
SUPREME COURT OF THE UNITED STATES
October Term, 1980
THOMAS RAY JAMES, Petitioner
PEOPLE OF THE STATE OF ILLINOIS, Respondent
MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS
DANIEL D. YUHAS
Deputy Defender
OF COUNSEL
DAVID P. BERGSCHNEIDER
Assistant Defender
Office of the State Appellate Defender
Fourth Judicial District
300 East Monroe, Suite 102
Springfield, IL 62701
(217) 782-3654
COUNSEL FOR PETITIONER
No.
IN THE
SUPREME COURT OF THE UNITED STATES
October Term, 1980
THOMAS RAY JAMES, Petitioner
PEOPLE OF THE STATE OF ILLINOIS, Respondent
MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS
The Petitioner, Thomas Ray James, respectfully requests
this Court, in accord with his attached affidavit, for leave
to file Petition for a Writ of Certiorari to the Appellate
Court of Illinois, Fourth Judicial District, without pre-
Payment of costs and to proceed in forma pauperis pursuant
Dant
DAVID BERGSCHNEIDER 7
Assistant Defender
to Rule 46.
COUNSEL FOR PETITIONER
THOMAS RAY JAMES
IN FORMA PAUPERIS AFFIDAVIT
(Petitioner)
Vv. AFFIDAVIT IN SUPPORT
OF REQUEST
TO PROCEED
PEOPLE OF THE STATE OF ILLINOIS
IN FORMA PAUPERIS
(Respondent (s) )
I, THOMAS RAY JAMES , being first duly sworn, depose
and say that I am the petitioner in the above entitled case; that
in support of my motion to proceed without being required to
prepay fees, costs or give security therefore, I state that because
of my poverty I am unable to pay the costs of said proceeding or
to give security therefore; that I believe I am entitled to relief.
I further swear that the responses which I have made to
questions and instructions below are true.
1. Are you presently employed? yYes [ No ae
(a) If the answer is "yes," state the amount of your salary
or wages per month, and give the name and address of
your employer.
—__—
\
|
(b) If the answer is "no," state the date of past employment
and the amount of the salary and wages per month which
you received.
LL? fee Cf f= PR 14. 2
2. Have you received within the past twelve months any money from
any of the following sources? 5
a. Business, profession or form of self-employment? Yes CT] No ce
b. Rent payments, interest or dividends? Yes C] so (a
d. Gifts or inheritances? Yes
c. Pensions, annuities or life insurance payments? Yes Cc] No
ot we
e. Any other sources? Yes [_] No ree
If the answer to any of the above is "yes," describe
each source of money and state the amount received from each
during the past twelve months.
ah Clif) 750”
Att. "Geren. (tf PR) re =
Cte. Cle
Do you own cash, or do you have money in a checking or cavings
account?
Yes [No aR (Include any funds in prison accounts.)
If the answer is "yes," state the total value of the items
owned. 4/72. 486 Liv? wf IFO
Lonena aoc Praca
‘
as
Do you own any real estate, Stocks, bonds, notes, automobiles,
or other valuable property (excluding ordinary household
furnishings and clothing) ?
Yes [] No a: ll
If the answer is "yes," describe the property and state
Ce
its approximate value.
List the persons who are dependent upon you for Support, state
your relationship to those persons, and indicate how much you
contribute toward their support. rpc TNNES
fa.
I understand that a false statement or answer to any
questions in this affidavit will subject me to penalties for
perjury.
be mage. a,
signavteay’ oF, 7.
(Petitioner'
State of Illinois
County (City) of Randolph
Thomas Ray James » being first duly sworn under
(Name of Petitioner) oath, presents that he has
read and subscribed to the above and states that the information
therein is true and correct.
SOG YZ
Signature of Petitioner
(Required aS to each petitioner)
Subscribed and sworn to before me this
af — day of 22pm meta VM
979 .
B (Ps Be ar we
Notary Public or other person
eae: authorized to administer an oath.
~ My Commission Expres Feb. 8, 1984
Certificate
I hereby certify that the petitioner herein has the sum of
$ on account to his credit at the
institution where he is confined. 1 further certify that petitioner
likewise has the following securities to his credit according to
the records of said institution:
Authorized Officer of Institution
No.
IN THE
SUPREME COURT OF THE UNITED STATES
October Term, 1980
THOMAS RAY JAMES, Petitioner
PEOPLE OF THE STATE OF ILLINOIS, Respondent
NOTICE OF MOTION AND PROOF OF SERVICE
TO: Mr. Michael Rodak, Jr. Mr. Thomas J. Fahey
Clerk of the Supreme Court State's Attorney
Of the United States Vermilion County Courthouse
1 First Street N.E. Danville, IL 61832
Washington, DC 20543
Mr. Tyrone C. Fahner Mr. Thomas Ray James
Attorney General of Illinois Register No. C-10447
188 W. Randolph, Ste. 2200 Box 711
Chicago, IL 60601 Menard, IL 62259
Please take notice that I have mailed one copy of the
Motion for Leave to Proceed in Forma Pauperis in the above-
captioned matter to the Clerk of the United States Supreme
Court and I am serving the Attorney General, State's Attorney |
and the Petitioner each with one copy mailed in envelopes
with sufficient prepaid postage deposited in the mail in
Springfield, Illinois and addressed as indicated above on
this AGHA aay of Mevemds 1980.
Oc.
DB HNEID
Assistant Defender
COUNSEL FOR PETITIONER
EE re nme enn em pee MT ee
ov. LG, 19 &
RECEIVED
DEC 1 they
No. 80-5799 OFFICE OF THE CLERK
SUPREME COURT, U.S.
IN THE
SUPREME COURT OF THE UNITED STATES
October Term, 1980
THOMAS RAY JAMES, Petitioner
PEOPLE OF THE STATE OF ILLINOIS, Respondent
PETITION FOR WRIT OF CERTIORARI
TO THE APPELLATE COURT OF ILLINOIS
FOURTH JUDICIAL DISTRICT
DAVID P. BERGSCHNEIDER
Assistant Defender
Office of the State Appellate Defender
Fourth Judicial District
300 East Monroe, Suite 102
Springfield, IL 62701
(217) 782-3654
COUNSEL FOR PETITIONER
DANIEL D. YUHAS
Deputy Defender
OF COUNSEL
No.
IN THE
SUPREME COURT OF THE UNITED STATES
October Term, 1980
THOMAS RAY JAMES, Petitioner
PEOPLE OF THE STATE OF ILLINOIS, Respondent
PETITION FOR A WRIT OF CERTIORARI
TO, THE APPELLATE COUPT OF ILLINOIS
FOURTH JUDICIAL DISTRICT
QUESTIONS PRESENTED FOR REVIEW
A.
Under what circumstances, if any, does an accused waive
his right to counsel under Miranda v. Arizona after his
request to consult with counsel has been ignored.
i
Whether police may resume interrogation of an
accused who has requested counsel without permitting
the accused an Opportunity to contact and consult
with an attorney.
2.
Should this Court hold that police may resume
interrogation without honoring a suspect's request for
counsel, what standards are to be utilized to determine
whether the accused knowingly and voluntarily withdrew
his request before speaking with officers.
B.
Under what circumstances, if any, is the effect of refusing
an accused's request to consult with counsel dissipated by
subsequent events so that a statement taken in violetion of
Miranda v. Arizona may be admitted in the prosecution's case
in chief.
i. :
TABLE OF CONTENTS
Page
I. SE be oS he oe et i et Serie ck oe ees 1
II. IE oboe BG at ae? gh a gag oo ao er eee 2
III. Constitutional Provisions Involved ........ 2
IV. ae Si ee ee ere tee ev a Uk 2
Vv. Reasons for Granting Certiorari ......... 10
A. 1. THIS COURT SHOULD GRANT CERTIORARI
TO CLARIFY CONFUSION IN THE LOWER
COURTS CONCERNING WHETHER POLICE
MAY REFUSE TO HONOR AN EXPLICIT POST-
ARREST REQUEST FOR COUNSEL, AND MAY
INSTEAD RENEW INTERROGATION IN AN
ATTEMPT TO OBTAIN A STATEMENT. . .... 10
2. SHOULD THIS COURT HOLD THAT UNDER
SOME CIRCUMSTANCES INTERROGATION MAY
BE RENEWED, IT SHOULD ESTABLISH GUIDE-
LINES FOR THE LOWER COURTS TO DETER-
MINE WHETHER THE ACCUSED SUBSEQUENTLY
WITHDREW HIS REQUEST FOR COUNSEL .... 13
B. THIS COURT SHOULD GRANT CERTIORARI TO
CONSIDER A QUESTION WHICH IT HAS NOT
DECIDED: WHEN, IF EVER, INTERVENING
EVENTS CURE A FAILURE TO HONOR A
POST-ARREST REQUEST FOR COUNSEL SO THAT
STATEMENTS OBTAINED IN VIOLATION OF
MIRANDA V. ARIZONA ARE ADMISSIBLE ... . 22
VI. tee ae Th, ee oe ie Or ae ae ee oe ee ee
osc tos cucu. ape bf tle SCALE Oh tt ar a ee ae ae Cee
eh ee ee ety ge ele be ee eg ee
NE a Sn OR ey a at ao C-1l
Appendix D 7 * : 7 ie a ik oe 7 . . £3 <« . . D-l
TABLE OF AUTHORITIES
Brown v. Illinois, 422 U.S. 590, 45 L.Ed.2d 416, 95 S.Ct. 23, 24,
2254 (1575) . . . . . . . . . . . . . . . . . . . . . 25, 27, 30
California v. Stewart, 384 U.S. 436, 16 L.Ed.2d 694, 86
. _ ) . . . . . . . . . - . o . . . . . . 15
Cobbs v. Robinson, 528 F.2d 1331 (2nd Cir. 1975) cert.
en e 8. 947 a - . 7 . . . . . * . . . - . . . 12
Fare v. Michael C., 442 U.S. 707, 61 L.Ed.2a 197, 99
a . Be 60 979) . . .* >. . . . . . . . . . . .* . . . ll, 25
ii.
Maglio v. Jago, 580 F.2d 202 (6th Cir. 1978). ... i * 76. "¢ ee
Michigan v. si 423 U.S. 96, 46 L.Ed.2d 313, 96
Ss. t. 75) . _ . . . . J . * . J J >. . * . .* . . Li. 17
Miranda v. Arizona, 384 U.S. 436, 16 L.Ed.2d 694, 86
S.Ct. 1602 (1966) . . . . . . . . . . . . . . . * ° ° 10, 14, 24
Nash v. Estelle, 597 F.2d 513 (Sth Cir. SC ee aes ee
People v. Morgan, 67 Ill.2d 1, 364 N.E.2d 56 COT?) -o.-a e ee
People v. White, 61 I11.2d 288, 335 N.E.2d 457 (1975)
Cert. denied 424 U.S. 970. ......ecsceceac o « «© 23, 24
Rawlings Vv. Renee U.S. , 65 L.Ed.2d 633, 100
| 19 0). . . . . . * . . . . J : . . . . .* . 28
Rhode Island v. Innis, U.S. , 64 L.Ed.2d 397, 100
sGBe . 7 . . . . . . . . . . . . . . 7 . . 12, 13
State v. Boone, 220 Kan. 758, 556 P.2d 864 (2O7TE) 2k’ 2
State v. Stone, Me., 397 A.2d 989 CABTS) . s « See he e
U.S. ex rel Williams v. Twomey, 467 F.2d 1248 (7th Cir.
1972) . . . . . . . . * . . . * . . . . . . . . . . . 12
United States v. Grant, 549 F.2d 942 (4th Cir. 1977) cert.
a San Wells BOO . «6 6le wc. > « € 8 wise «6 6
United States v. Rodri uez-Gastelum, 569 F.2d 482 (9th Cir.
1978) cert. Zentol 436 U.S. 919. eo 0 & Cw eu eo ae
Westover v. United States, 384 U.S. 436, 16 L.Ed.2d 694,
. ae . . . . . . . . >. . . . J . . . . 18
White v. Finkbeiner, 611 F.2d 186 (1970) (Petition for
Certiorari pending, No. 79-6601) .... eo ¢ «© 0 le» eee oe
iii.
at
me
No.
IN THE
SUPREME COURT OF THE UNITED STATES
October Term, 1980
THOMAS RAY JAMES, Petitioner
PEOPLE OF THE STATE OF ILLINOIS, Respondent
PETITION FOR A WRIT OF CERTIORARI
TO THE APPELLATE COURT OF ILLINOIS
FOURTH JUDICIAL DISTRICT
The Petitioner, Thomas Ray James, respectfully prays that
a Writ of Certiorari issue to review the judgment and opinion
of the Appellate Court of Illinois Fourth Judicial District,
entered on March 28, 1980.
I.
OPINION BELOW
The opinion of the Appellate Court of Illinois for
the Fourth Judicial District is reported at 82 I1l.App.3d 551,
7 Tll.Dec. 934, 402 N.E.2d 936. A copy of the opinion is
attached hereto as Appendix A.
ws Lt, oe et es eS eee a ere c
ae, Seat Fe iO eae - - len Coe ata, “t
II.
JURISDICTION
The judgment of the Appellate Court of Tllinois for the
Fourth Judicial District was entered on March 28, 1980. On
April 28, 1980, the Appellate Court denied a Petition for
Rehearing in an order, a memorandum of which is appended
hereto as Appendix B. On September 29, 1980, the Illinois
Supreme Court denied a Petition for Leave to Appeal in an
order, a memorandum of which is appended hereto as Appendix
C. This Petition is filed within Sixty (60) days of the
order of the Supreme Court of Illinois. The jurisdiction of
this Court is invoked under 28 U.S.C. Sec. 1257(3).
III.
CONSTITUTIONAL PROVISIONS INVOLVED
UNITED STATES CONSTITUTION
AMENDMENT V.
No person . . . shall be compelled in any
criminal case to be a witness against him-
Ries « 3 5 .
AMENDMENT XIV
SECTION 1. All persons born or natural-
ized in the United States, and subject to
the jurisdiction thereof, are citizens of
the United States and of the State where-
in they reside. No State shall make or
enforce any law which shall abridge the
privileges or immunities of citizens of
the United States; nor shall any State
deprive any person of life, liberty, or
property, without due process of law; nor
deny to any person within its jurisdic-
tion the equal protection of the laws.
Iv.
STATEMENT OF THE CASE
Prior to trial, Mr. James raised the federal question
involved in this petition by meving to suppress his post-
arrest statements on the grounds that the Statements were
se | ee a | ~~ * “ae eS =. CU ee
Bian MP he tenn ee EY EO en Pe ee! COON ag Ee 2, eee eee oe aoe os a
vse” yet ae CSS ;
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r
4
involuntary, had been obtained in violation of Miranda v.
Arizona because police ignored a request for counsel, and
had been made in response to unfulfilled promises. (Cc. 191-
194) A hearing on the motion to suppress was held August
1l, 1978. The following testimony was introduced:
Deputy Carey testified that he arrested Mr. James during
the late afternoon on Wednesday, May 17, 1978. (C. 209)
(The transcript of the suppression hearing is included in
Volume II of the record.) As Carey and Mr. James were riding
in the squad car on their way to the police station, Mr.
: James asked if he would be allowed to make a phone call at
. the jail. (C. 215) Carey replied that he could. (c. 214)
Mr. James then asked if he could make a second call if the
line was busy the first time, and Carey said that he could.
(C. 215)
After a minute or two had passed, Mr. James said that
he "would like to talk to an attorney." (C. 216, 227)
Carey said that Mr. James would be allowed to do so. (Cc.
217) At Mr. James's request, Carey advised him of his
Miranda rights. (C. 215, 217) Mr. James stated that he
understood his rights. (Cc. 219)
Upon arriving at the police ation, Carey informed
Investigator William Hartshorn, who was in charge of the
investigation, that Mr. James had been advised of his rights
and had asked to Speak to an attorney and to use the tele-
Phone. (C. 224, 236) Carey told Hartshorn that Mr. James
had been told that he would be allowed to speak with an
attorney and to use the telephone. (C. 224)
Hartshorn admitted that he had been told by Carey that
Mr. James had asked to Speak to an attorney. (Cc. 236) De-
spite Hartshorn's knowledge of Mr. James's request, he and
Investigator Larry Rollins immediately began to interrogate
Mr. James. (C. 238) At approximately 6:20 p.m., Rollins
read the Miranda rights form to Mr. James, who initialed the
form. (C. 240-241, 318) The form did not contain an ex-
press waiver of the right to counsel, but contained only a
general statement that Mr. James knew, understood, and
"waived" all his constitutional rights. (Vol. Iv, R. 419)
Neither Hartshorn nor Rollins mentioned the prior request
for counsel or disclosed to Mr. James that Hartshorn was
aware of the request. Neither officer expressly asked Mr.
James whether he wanted to see an attorney or whether he was
willing to talk without an attorney. Mr. James was inter-
viewed from 6:20 p.m. until 6:58 p.m. (C. 240-241, 318)
At 6:58 p.m., Mr. James ate supper. (C. 318) Mr.
Jar 3 was again interrogated from 7:24 through 8:21 p.m.,
and another break occurred from 8:21 to 8:53 pem. (C. 241,
246, 272, 277, 278, 319) At some point between 8:00 p.m.
and 8:53 p.m., Mr. James asked to use the telephone and was
allo -d to call his employer. (C. 247, 273, 294, 321-323)
after the phone call, Mr. James was questioned by
Investigators LeConte and Woodward. (C. 249, 325, 348-349,
367, 380) At LeConte's request, Mr. James initialed a
second Miranda rights form. (C. 349-350) This form, like
the others which Mr. James initialed, did not contain an
express waiver of the right to counsel. (Vol. IV, R. 419)
The interrogation by LeConte and Woodward dealt primarily
with the death of David Holler, the offense with which Mr.
James was charged in this case.! (c, 367, 380)
1 tt should be noted that Mr. James was interrogated
concerning two separate but related transactions. The pre-
sent appeal is from a murder conviction involving the death
of David Holler, who died on May 8, 1978, nine days before
Mr. James was arrested. In a related prosecution, Mr. James
was convicted of attempt murder involving a fight with Sam-
uel Cartwright, and was sentenced to serve thirty years im-
prisonment. The attempt murder conviction was affirmed in
an unreported order by the Appellate Court of Illinois,
Fourth Judicial District, and is not involved in this appeal.
~g-
About 11:00 p.m., Mr. James was allowed to speak with
his mother and stepfather, who had come to the police sta-
tion. (C. 250, 325) Mr. James was placed in a cell about
midnight. (C. 250, 325-326)
The following day, May 18, Mr. James was interviewed by
Hartshorn and Rollins from 11:00 a.m. until 1:00 Pem. (C.
250, 326-329) At the request of the officers, Mr. James
initialed a third Miranda rights form. (Cc. 260-261, 326-
328) This form was identical to the forms signed on the
previous day in that it did not contain an express waiver of
counsel, Mr. James did not repeat his earlier request to
speak with an attorney, and the officers did not indicate to
Mr. James that they were aware of the earlier request. (C.
261) This interrogation also centered on the death of David
Holler. (C. 338)
From 1:00 to 2:00 p.m., Mr. James ate lunch and spoke
with his parole officer. (C. 245, 262, 329) Mr. James took
a polygraph examination from 2:55 to 4:10 p.em. (C. 330)
Hartshorn and Rollins again interviewed Mr. James from 4:15
P.-m. to 4:25 p.m. (C. 263, 330-331)
Upon Hartshorn's orders, LeConte and Woodward inter-
viewed Mr. James again from 4:30 to 6:05 p.m. (C. 263, 331,
353, 370) During this interrogation, Mr. James admitted
shooting David Holler. (C. 358) Mr. James also drew sev-
eral maps which were admitted at trial. (C. 358)
At 7:30, Mr. James was a’ lowed to eat dinner. (C. 331)
Mr. James visited with his father from 7:30 through 8:20
P-m., and with Carolyn Burris from 8:30 to 9:20 pem. (C.
264, 331-332)
LeConte and Woodward interrogated Mr. James again from
9:20 p.m. until 10:45 p.m. (C. 264, 290, 332, 354, 360)
During this interrogation, Mr. James made a written state-
ment admitting that he had killed David Holler. (C. 264,
290, 332, 354, 360, 376)
Mr. James testified in his own behalf. While in the
squad car after his arrest, Mr. James told Officer Carey
that he wanted to make a phone call and speak with an attor-
ai (C. 410-411) Mr. James also asked the officer to read
the Miranda rights because Mr. James thought that he was in
trouble. (C. 430) Mr. James had been questioned by police
four or five years earlier, but was not fully aware of all
his rights. (C. 430-432) Mr. James testified that he did
not expect Carey to produce a lawyer in the squad car, but
thought that he would be provided with counsel at the police
station. (C. 435)
At the police station, Mr. James asked to make a phone
call and to be taken to the hospital. (C. 412, 440) Mr.
James told Hartshorn that he had not had any sleep and asked
that he be allowed to call his parole agent, but was not
allowed to do so. (C. 413) Instead, Rollins and Hartshorn
took Mr. James to an interview room and asked if they could
talk to him. (C. 413) Mr. James asked that Investigator
Miller be called because Miller was the only police officer
whom he knew. (C. 414) (Miller was called and was present
during the first interrogation. (C. 297-300)) Mr. James
again asked to use the phone, but Hartshorn refused. (Cc.
441)
At the officers' request, Mr. James initialed a form
indicating that he understood his Miranda rights. (C. 442)
The form contained the notation "Murder - Attempt Murder."
Mr. James asked if he was charged with those offenses, and
the officers replied that the notation was a precaution. (C.
442)
Mr. James testified that he told Rollins that he saw no
point in talking with the officers. (C. 417) One of\the
officers replied it was necessary to ask Mr. James every
question "30 times" because Mr. James's answers "didn't
sound right." (C. 417) At that point, Mr. James stopped
talking. (C. 417)
A few minutes later, LeConte and Woodward entered the
room and began to question Mr. James. (C. 418) Mr. James
talked with LeConte and Woodward for about one hour. (C.
419-420) Mr. James was not allowed to use the telephone, and
did not call his employer. (Cc. 420-421, 429, 553)
After being questioned, Mr. James was placed in a cell.
(C. 423) Mr. James did not recall speaking with his mother
and stepfather on May 17. (Cc. 421, 442)
Mr. James testified that he did not renew his request
for counsel after arriving at the police station because he
was continually questioned about the offenses and was not
asked about his needs. (C. 451)
During the interview on the morning of May 18, Rollins
said that he knew that Mr. James had killed Holler, that he
was going to make sure that Holler's children found out, and
that he would work on the case while Mr. James was in prison
on the parole violation and would see that Mr. James was
arrested when he was released from prison. (C. 425) After
Mr. James took the polygraph examination, Rollins returned
Mr. James to an interview room and stated that "even his
untrained eye could see" that Mr. James had lied. (C. 426)
Hartshorn and Rollins questioned Mr. James for twenty or
thirty minutes, and Mr. James stated that he did not want to
talk to the officers. (C. 427) Hartshorn and Rollins left
the room, and LeConte and Woodward entered. LeConte and
Woodward questioned Mr. James for about forty-five minutes.
(C. 427)
Mr, James asked Woodward what it would take to stop the
questioning, and Woodward replied that the police wanted a
Statement. (C. 428) Mr. James asked if the questioning
would stop if he gave a statement, and Woodward said that it
would. (C. 428) At that time, Mr. James gave an oral state-
ment concerning the death of David Holler. (Cc. 428) Mr.
James testified that he gave the statement because he was
tired and afraid, because he wanted the questioning to stop,
and because he could not tolerate the thought of returning
to prison on a parole violation knowing that the State was
attempting to convict him on another charge. (C. 454, 469)
During the oral statement, Mr. James asked the police
to call his father, mother, and Carolyn Burris. (Cc. 4455 :
After making the oral statement, Mr. James was allowed to ’
see his father. However, upon entering the room Mr. James's
father said that he had agreed to tell the police everything
that Mr. James said. (C. 445) Later in the evening, Mr.
James saw his mother and Carolyn Burris. (C, 447-448)
The trial court denied the motion to suppress, finding
that Mr. James's statement that he "would like to talk to an
attorney" was a request for information rather than a re-
quest to see an attorney. (C. 506) The trial court held
that Mr. James should have known that Deputy Carey could not
have provided an attorney in a rural area, and that Mr.
James was obligated to repeat his request at the police
station in order to exercise his right to counsel. (C. 506-
509)
In a jury trial held December 11 through 14, 1978, Mr.
James was convicted of murder and armed violence. The
Statements which Mr. James made on May 18 were admitted into
evidence during the State's case-in-chief.
va
On February 1, 1979, Mr. James was sentenced to forty
years imprisonment, to be served consecutively to the thirty
year sentence previously imposed in the attempt murder
prosecution. (C, 5)
On appeal to the Appellate Court of Illinois, Fourth
Judicial District, Mr. James contended that his statement
that he would "like to talk to an attorney" was an unam-
biguous assertion of the right to counsel under Miranda Vv.
Arizona, and that his confessions should have been sup-
pressed because instead of scrupulously honoring his re-
quest for counsel, the police and repeatedly interrogated
him.
The appellate court held that Mr. James's statement
that he "would like to talk to an attorney" was a request
for counsel "in the most unambiguous and unequivocal of
terms." 402 N.E.2d at 939. However, the appellate court
ruled that the defendant knowingly and voluntarily withdrew
his request for counsel in the subsequent interrogations.
The lower court also held Mr. James's statements were admis-
sible because the effect of the Miranda violation was "suf-
ficiently dissipated" by events which occurred between Mr.
James's request for counsel and his statements.
On April 28, 1980, the appellate court denied rehear-
ing. On September 29, 1980, the Illinois Supreme Court
denied leave to appeal.
Vv.
REASONS FOR GRANTING CERTIORARI
A.
l.
THIS COURT SHOULD GRANT CERTIORARI TO
CLARIFY CONFUSION IN THE LOWER COURTS
CONCERNING WHETHER POLICE MAY REFUSE
TO HONOR AN EXPLICIT POST-ARREST REQUEST
FOR COUNSEL, AND MAY INSTEAD RENEW INTERRO-
GATION IN AN ATTEMPT TO OBTAIN A STATEMENT.
Just after his arrest, Mr. James asked to speak to an
attorney, and was told that he could do so at the police
station. At the station, Mr. James was immediately interrogated
by Investigator Hartshorn, who was informed that Mr. James
had asked to speak to an attorney and had been told that he
could do so. At Hartshorn's direction, Mr. James was interrogated
five additional times over the next twenty-eight hours.
During the fifth and sixth interrogations, Mr. James made
two statements which, at trial, were introduced in the
prosecution's case-in-chief.
The Appellate Court of Illinois, Fourth Judicial Dis-
trict, held that although petitioner's request for counsel
had been ignored, the State had established that Mr. James
knowingly and voluntarily withdrew that request. The appel-
late court declined to follow this Court's per se rule of
Miranda v. Brizona, 384 U.S. 436, 16 L.Ed.24 694, 86 S.Ct.
1602 (1966), which prohibits resumption of questioning
once a request for counsel is made. 402 N.E.2d 936, 940.
In Miranda, this Court made clear that the police may
not renew interrogation after a request for counsel is made:
Once warnings have been given, the sub-
sequent procedure is clear. ... If the
individual states that he wants an attor-
ney, the interrogation must cease until
an attorney is present.
384 U.S. 436, 474.
-10-
In Michigan v. Mosley, 423 U.S. 96, 46 L.Ed.2d 313, 96
S.Ct. 321 (1975) this Court reiterated Miranda's per se
rule where counsel is requested. In response to an asser-
tion that the per se rule applies where the suspect asserts
his right to silence, but does not request counsel, this
Court noted:
[C] learly the Court in Miranda imposed
no such requirement, for it distin-
guished between the procedural safe-
guards triggered by a request to remain
silent and a request for an attorney
and directed that "the interrogation
must cease until an attorney is present"
only "({i]Jf the individual states that
he wants an attorney." 384 U.S. at 474.
(423 U.S. 96, 104, n. 10) (See also
423 U.S. 96, 109-110) ((White, J., con-
curring.)
This Court has recently reaffirmed the per se rule in
two cases. In Fare v. Michael C., 442 U.S. 707, 61 L.Ed.2d
197, 99 S.Ct. 2560 (1979), this Court held that a juvenile's
request to see his probation officer was not the equivalent
of a request for an attorney. Mr. Justice Blackmun, writing
for the Court, repeatedly restated with approval that Miranda
established a per se rule against interrogation after a
request for counsel:
The per se aspect of Miranda was thus
based on the unique role the lawyer
plays in the adversary system of cri-
minal justice in this country. Whether
it is a minor or an adult who stands
accused, the lawyer is the one person
to whom society as a whole looks as
the protector of the legal rights of
that person in his dealings with the
police and the courts. For this rea-
son, the Court fashioned in Miranda
the rigid rule that an accused's re-
quest for an attorney is per se an
invocation of his Fifth Amendment
rights, requiring that all interro-
gation cease.
442 U.S. 707, 719.
It is this pivotal role of legal coun-
sel that justifies the per se rule es-
tablished in Miranda, and that distin-
guishes the request for counsel from
the request for a probation officer, a
clergymen, or a close friend.
442 U.S. 707, 722.
aji-
The per se rule was most recently reiterated by this
Court last term in Rhode Island v. Innis, D.8. , 64
L.Ed.2d 297, 100 S.Ct. —__._: (1980). Writing for the Court,
Mr. Justice Stewart twice reaffirmed that Miranda imposed a
per se rule barring interrogation after a request for coun-
sel. 64 L.Ed.2d 297, 302-303, 305-306.
Despite this Court's holdings, lower courts are in
confusion concerning whether interrogation must cease where
the accused requests counsel. For example, the Seventh Cir-
cuit originally followed this Court's per se rule. U.S. ex
rel Williams v. Twomey, 467 F.2d 1248, (7th Cir. 1972). In
White v. Finkbeiner, 611 F.2d 186 (1979) (Petition for
Certiorari pending, No. 79-6601), the Seventh Circuit
rejected the per se rule and adopted a case-by-case analysis
of whether waiver had occurred.
Other circuit courts are having similar difficulty
determining this issue. In Nash v. Estelle, 597 F.2d 513
(Sth Cir. 1979), the Fifth Circuit acknowledged the exis-
tence of the per se rule, but permitted inquiry if the
request for counsel was ambiguous. In Cobbs v. Robinson, 528
F.2d 1331 (2nd Cir. 1975), cert. denied 424 U.S. 947, the
Second Circuit, without mentioning the mandaté of Miranda,
adopted a case-by-case adjudication of waiver. In United
States v. Grant, 549 F.2d 942 (4th Cir. 1977), cert. denied
432 U.S. 908, the Fourth Circuit rejected the per se rule
of Miranda. Finally, in United States v. Rodriguez-Gastelum,
569 F.2d 482 (9th Cir. 1978), cert. denied 436 U.S. 919, the
Ninth Circuit held that the per se rule was inappropriate
and adopted a case-by-case inquiry.
The Sixth Circuit, on the other hand, in a case involving
the Sixth Amendment right to counsel, recognized that Miranda
had imposed a per se rule in Fifth Amendment cases. Maglio v.
Jago, 580 F.2d 202 (6th Cir. 1978).
=12<
The confusion reflected by these opinions is also pre-
sent among the states. For example, Kansas follows the per
se rule mandated by Miranda. State v. Boone, 220 Kan. 758,
556 P.2d 864 (1976). Maine and Illinois, among others, have
declined to adopt the per se rule. State v. Stone, Me., 397
A.2d 989 (1979); People v. Morgan, 67 I11.2d4 1, 364 N.E.2d
56 (1977).
In the case at bar, the appellate court concluded,
without mentioning this Court's opinions, that the per se
rule was not valid. It is petitioner's position that under
the prior holdings of this Court, a request for counsel
cannot be knowingly and voluntarily waived in response to
renewed interrogation by police unless the suspect has had
an opportunity to consult an attorney. As this Court's
opinion in Rhode Island v. Innis made clear, a suspect may
volunteer information even after requesting counsel. 64
L.Ed.2d 297, 307. In Innis, however, the police did not
question the defendant, but instead honored his right to cut
off questioning until an attorney was present. In this
case, by contrast, the defendant did not confess until he
had been interrogated several times by police officers who
knew that he had requested an attorney.
Because the lower courts are in confusion concerning
the per se rule, this Court should grant certiorari to
clarify that interrogation must cease upon a suspect's
request to consult with counsel.
2.
SHOULD THIS COURT HOLD THAT UNDER SOME
CIRCUMSTANCES INTERROGATION MAY BE RE-
NEWED, IT SHOULD ESTABLISH GUIDELINES FOR
THE LOWER COURTS TO DETERMINE WHETHER THE
ACCUSED SUBSEQUENTLY WITHDREW HIS REQUEST
FOR COUNSEL.
Should this Court reverse the per se rule of Miranda
and permit police interrogation after a request for counsel,
-l13-
it should establish standards for determining whether a
defendant has voluntarily withdrawn his request.
Even where no request for counsel is made, the State
bears a heavy burden to demonstrate that the accused know-
ingly and intelligently waived his right to counsel.
Miranda v. Arizona, 384 U.S. 436, 475. Where a request for
counsel has been ignored, the State's burden should be at
least as great, if not greater.
In this case, the appellate court specified several
factors which it said established that Mr. James knowingly
and voluntarily withdrew his request for counsel. First,
the court emphasized that nearly twenty-four hours passed
between "the violation of Miranda and the statements sought
to be suppressed." 402 N.E.2d at 941. However, this find-
ing rests upon a misconception of an officer's duty once a
request for counsel is made. The appellate court assumed
that the only Miranda violation occurred when Investigator
Hartshorn began the first interrogation approximately thirty
minutes after petitioner's request for counsel. However,
Hartshorn and the officers under his direction renewed
interrogation six separate times between petitioner's re-
quest for counsel and his eventual confessions. The police
violated Miranda each time they re-interrogated petitioner
without providing an opportunity to consult counsel or, at
the very least, clearly ascertaining that petitioner: had
changed his mind and wanted to speak with the officers
without consulting an attorney.
Had Mr. James been left alone for twenty-four hours,
without any attempt at interrogation, the appellate court's
reasoning might be more persuasive. However, because Mr.
James was questioned repeatedly during the intervening
period, a knowing and voluntary retraction of his request
for counsel is less likely. It is far more likely as
-14-
this Court found in California v. Stewart (a companion case
to Miranda), that Mr. James confessed because of persistent
interrogation rather than as a voluntary exercise of his
free will. 384 U.S. 436, 499. This conclusion is buttressed
by petitioner's testimony that he confessed because the
police ~romised to stop questioning him if he gave a state-
ment. (Vol. II, C. 428, 469)
The appellate court also emphasized that between the
time of his arrest and his written confession, Mr. James was
advised of his rights six times and signed four written
waivers. 402 N.E.2d 936, 940-941. However, the effect of
repeating the warnings was diluted because the police had
already ignored petitioner's attempt to exercise his rights.
Only a few minutes after petitioner was first advised
of his rights and requested counsel, officers readvised him
of his rights and began interrogation. This action, taken
with complete knowledge that petitioner had just requested
an attorney, constituted an obvious and egregious violation
of Miranda. Where a request for counsel is immediately
greeted by repetition of the Miranda warnings, the implication
to the accused is that the police do not intend to honor his
attempt to exercise those rights. Rather than protecting
the accused from the coercive atmosphere of custodial interrogation,
repetition of the Miranda warnings after a request for
counsel increases the pressure on the accused because he
must realize that, no matter what rights he possesses, the
police are in a position to control whether his rights are
respected. An assertive and forceful person may insist that
police honor his prior request. A less assertive suspect
might conclude, as did the petitioner here, that the warnings
are meaningless and that he has no alternative except to
talk to police.
In addition, because the waiver forms which Mr. James
=15~
initialed were ambiguous, and because the police did not at
any time acknowledge the prior request or ask Mr. James
directly whether he wanted to see an attorney, the waiver
forms are insufficient to establish a voluntary retraction
of the prior request. The form contains three sentences
which advise the defendant that he has the right to remain
silent, that anything he says will be used against him, that
he has the right to consult an attorney, have an attorney
present during questioning, and to have an attorney appointed
if he is indigent. At the end of each line the accused is
to place his initials if he understands that he has those
rights. (Vol. IV, R. 419) (See Appendix D)
The form contains only two sentences from which waiver
of the right to counsel can be inferred:
Knowing and understanding these rights,
I waive them at this time and agree to
talk with the officer(s); knowing and
understanding also that if I desire to
stop talking to the officer(s) at any
time, I am free to do so.
(subject's initials)
I make this waiver freely and voluntar-
ily without any force, promises or
threats. (subject's initials)
(Vol. II, R. 419) (See Appendix D)
Where a request for counsel has been made, it is only
reasonable to require that a retraction of that request be
at least as explicit as the request itself. The petitioner's
statement, "[I) would like to talk to an attorney," closely
followed by the statement, "I know, understand, and waive my
rights," at best indicates confusion. The officers made no
attempt to eliminate that confusion, even though the logical
reaction to the inconsistent statements would have been to
clarify whether Mr. James wanted to talk to an attorney.
The record suggests, to the contrary, that the officers
carefully avoided taking any action which might have led Mr.
James to repeat his request. Thus, the officers did not
acknowledge that they knew of the prior request, and did not
ask Mr. James whether he still wanted to see an attorney.
Mr. James was never directly asked, either by the officers
or by the statements on the waiver form, whether he was
willing to talk to the officers without having an attorney
present. Finally, of course, the officers did not in any
way intimate that a second attempt by Mr. James to exercise
his right to counsel might be honored.
The app@llate court also stated that petitioner's
request for counsel concerned an offense different from the
offense involved in this appeal. 402 N.E.2d 936, 941.
However, the record does not support this assertion. The
defendant was charged with two related offenses, murder and
attempt murder. When petitioner requested to talk to an
attorney, he was in a squad car on the way to the police
station. Although Mr. James later asked about the victim in
the attempt murder case, neither case had been mentioned at
the time Mr. James asked for counsel. (Vol. II, C. 215-221)
In addition, when interrogation was renewed at the
police station, the police did not maintain a strict dichot-
omy between the offenses. The first waiver form which Mr.
James was asked to sign carried the notation "Murder -
Attempt Murder." (Vol. II, C. 442) In addition, the offi-
cers did not strictly limit their interrogation to one
offense or the other. In Michigan v. Mosley, by contrast, a
critical factor in this Court's analysis was that the subse-
quent interrogation was restricted to an offense which had
not been included in the first interrogation. 423 U.S. 96,
106.
Furthermore, the police made no effort to assure Mr.
James that a request for counsel on the second offense would
be honored. In order for a waiver on the second offense to
be valid, the defendant must know that although the police
refused his prior request, they are willing to honor a
request on the second offense. Unless the defendant is made
aware of this, the intimidating effect of the earlier refu-
sal may inhibit a second request.
This case is similar to Westover v. United States,
another companion case of Miranda. Westover was arrested
and, without being advised of his rights, was interrogated
for several hours by local authorities. After the local
authorities completed their interrogation, federal agents
advised Westover of his rights and questioned him about
completeiy different offenses. In reversing federal con-
victions which relied upon confessions which Westover made
to the federal agents, this Court held:
Although the two law enforcement autho-
rities are legally distinct and the
crimes for which they interrogated West-
over were different, the impact on him
was that of a continuous period of ques-
tioning.
384 U.S. 436, 496.
In this case, the offenses were not only related, but
some of the interrogations dealt with both cases. In addi-
tion, the officers involved were all from a Single jurisdic-
tion. As in Westover, the impact upon the petitioner was
that of continuous interrogation concerning more than one
offense.
Two other points mentioned by the appellate court de-
serve mention. First, the lower court stated that Investi-
gator Hartshorn had testified that petitioner "agreed to
answer the officer's questions without an attorney being
present," implying that Mr. James affirmatively stated that
he was willing to be questioned without counsel. 402 N.E.2d
-18-
936, 941. When taken in context, however, the record is
clear that Mr. James made no such statement.
The testimony to which the lower court referred was:
Q. [by prosecutor]: After the comp le-
tion of the interrogation form -- the
first interrogation form on the 17th,
marked as People's Exhibit No. 4 -- did
Mr. James agree to answer your questions
or to talk with you without an attorney
being present?
A. Yes, he did.
(Vol. II, C. 266-267)
As is apparent from this question, Hartshorn did not
testify that petitioner stated his willingness to proceed
without counsel, but instead agreed with the premise of the
prosecutor's question. By contrast, when directly asked
whether petitioner stated that he did not want to consult an
attorney, Hartshorn testified that the subject of speaking
to counsel was newer mentioned:
Q. At that point when you first came
into the room with Investigator Rollins,
what, if anything, did Mr. James say
concerning wanting to talk to an attor-
ney before talking with you?
A. He said nothing to us about an attor-
ney.
(Vol. II, C. 239)
Furthermore, Hartshorn later testified that Mr. James
made no mention of counsel at any interrogation on either
day:
Q. During any period of time on the
17th when you were present with Mr.
James, when, if ever, did he ask to
have an attorney speak with him during, ,
prior, or after any conversation with
you?
A. During my contact with Mr. James,
neither on the 17th or the 18th, did
he ever ask me if he could have an
attorney, if he could call an attorney,
Or make any reference to any contact
with an attorney.
(Vol. II, C. 248)
-19-
-*
It is obvious that, taken in context, the remark which
the lower court cited did not refer to an express statement
that Mr. James was willing to answer questions without the
presence of counsel.
The final factors mentioned by the appellate court were
that petitioner was twenty-six years old, was a high school
graduate, was employed as an assistant manager of a shoe
store, and had prior experience with the criminal justice
system. 402 N.E.2d 936, 941. While these factors may have
some value in determining whether petitioner was aware of
his rights, they are hardly conclusive on the question of
waiver. This is not a case where the warnings were con-
fusing or misleading and where the intelligence and exper-
ience of the accused might indicate that he understood the
warnings. Instead, the issue here is whether the record
affi:matively establishes that, despite a deliberate refusal
of petitioner's request for counsel, petitioner's confession
was the result of a voluntary and knowing decision to with-
draw that request. In the inherently coercive atmosphere of
a police interrogation room, even an intelligent man might:
assume that refusal of a request for counsel indicated
unwillingness to permit one to exercise his rights. In the
absence of some indication that petitioner's prior exper-
ience involved a refusal by police to honor his constitu-
tional rights, the fact that he had been questioned in the
past is of little importance.
The most critical factor to be considered in determin-
ing whether petitioner withdrew his request for counsel is
not mentioned in the appellate court's opinion. In Michigan
v. Mosley, this Court stressed that although the accused had
been questioned about an unrelated offense, the police had
"scrupulously honored" his decision to cut off questioning:
-20-
This is not a case, therefore, where
the police failed to honor a decision
of a person in custody to cut off
questioning, either by refusing to dis-
continue the interrogation upon request
or by persisting in repeated efforts to
wear down his resistance and make him
change his mind.
423 U.S. 96, 105-106.
In this case, by contrast, Investigator Hartshorn had
complete knowledge of petitioner's request for counsel, but
ignored that request and renewed interrogation. After interrogation
was resumed, the officers failed to ask petitioner if he
wanted counsel, to indicate that they knew of the prior
request, or to acknowledge that they would honor a repeated
2
request. Furthermore, the police failed to provide a court
hearing scheduled for the afternoon of May 18, several hours
before Mr. James confessed, although counsel could have been
appointed at the hearing. Not only did the officers fail to
"scrupulously honor" petitioner's exercise of his Fifth
Amendment rights, but examination of the record compels the
conclusion that police deliberately ignored petitioner's
request and set about obtaining a confession. Should this
Court find that a request for counsel may be withdrawn where
the accused is not permitted to consult with counsel, it
should nonetheless condemn the actions taken by police here.
Certiorari should be granted in this haec so that this
Court can clarify for lower courts the per se rule prohibit-
ing interrogation after a request for counsel is made. In
addition, should this Court find that the per se rule is no
longer valid, it should establish standards by which the
lower courts can determine whether a request for counsel has
been knowingly and voluntarily withdrawn.
-2]-<
THIS COURT SHOULD GRANT CERTIORARI TO CONSIDER A
QUESTION WHICH IT HAS NOT DECIDED: WHEN, IF EVER,
INTERVENING EVENTS CURE A FAILURE TO HONOR A POST-
ARREST REQUEST FOR COUNSEL SO THAT STATEMENTS OB-
TAINED IN VIOLATION OF MIRANDA V. ARIZONA ARE
ADMISSIBLE.
Immediately after his arrest, petitioner said that he
wanted to talk with counsel, and was told that he could do
so at the police station. Despite knowing of the request, a
different police officer readvised petitioner of his Miranda
rights and renewed interrogation. Over the next twenty-
eight hours, the police repeated the Miranda warnings and
renewed interrogation five additional times. At the fifth
interrogation, which occurred approximately twenty-four
hours after the request for counsel, petitioner made an oral
confession. At the sixth interrogation, which occurred
approximately twenty-eight hours after counsel was requested,
petitioner made a written confession.
Despite the failure of police to honor petitioner's
request for counsel, the Appellate Court of Illinois, Fourth
Judicial District, held that the confessions were admissible.
The court held that the effect of the refusal to honor
petitioner's request was "dissipated" by intervening events
so that the confessions were voluntarily made and were thus
admissible. Among the factors relied upon by the appellate
court were that nearly twenty-four hours lapsed between the
request for counsel and petitioner's first confession; peti-
tioner was advised of his rights five times after his request
for counsel, and signed four written waiver forms; peti-
tioner was eventually allowed to speak to his relatives, his
parole officer, and a friend; petitioner had a high school
education; and petitioner had been questioned by police
officers in the past. 402 N.E.2d 936, 940-941.
-22-
s
To support its conclusion that a Miranda violation can
be cured by intervening events, the appellate court cited
only People v. White, 61 I11.2d 288, 335 N.E.2d 457 (1975),
cert. denied 424 U.S. 970, a decision of the Illinois Supreme
Court.2 People v. White, in turn, rested solely upon this
Court's opinion in Brown v. Illinois, 422 U.S. 590, 45
L.Ed.2d 416, 95 S.Ct. 2254 (1975), a Fourth Amendment case
which held that giving Miranda warnings does not necessarily
break the causal connection between an illegal search and
subsequent statements. The opinion in Brown v. Illinois does
not refer to the proposition for which the case was utilized
in People v. White - that a failure to honor a valid request
for counsel can be cured by subsequent events. Nor
has this Court ever considered the validity of the White
rule. Certiorari should be granted so that this Court may
consider whether the rule adopted by the Illinois Supreme
Court in People v. White, and relied upon by the lower court
in the case at bar, rests upon sound constitutional prin-
ciples.
In Brown v. Illinois, the defendant was arrested ille-
gally, taken to the police station, and given the warnings
required by Miranda v. Arizona. He then made two inculpa-
tory statements. Brown's motion to suppress his statements
was denied, and he was convicted at a trial in which evi-
dence of both statements was introduced.
On appeal, the Illinois Supreme Court held that Brown
had been arrested illegally, but adopted a per se rule that
the Miranda warnings in and of themselves broke the causal
chain so that any subsequent statement, even if induced by
1 the conviction involved in People v. White has been
the subject of several federal court Nectetone- The latest
opinion in this series is White v. Finkbeiner, 611 F.2d 186
(1979), which is now pending on a Petition for Certiorari
before this Court (No. 79-6001).
*
-23-
the continuing effects of unconstitutional custody, could
not be suppressed as the fruit of the illegal arrest. See
442 U.S. 590, 596-597.
On appeal, this Court held that the Miranda warnings
were a factor in determining whether the taint of an illegal
arrest had been dissipated, but did not, in and of them-
selves, invariably break the causal chain. Not only did
this Court fail to consider any possible Fifth Amendment
application of Brown, but it specifically limited its holding
to the facts. See 422 U.S. 590, 605.
Brown presented a totally different factual situation
from either People v. White or the case at bar. In Brown,
the only police illegality was the arrest of the defendant
without a warrant and without probable cause. The only
issue presented was whether subsequent statements were
fruits of the illegal arrest. Although the giving of
Miranda warnings was one of the events between the arrest
and the statements, Brown was not a Fifth Amendment case
because there was no Fifth Amendment violation.
People v. White and the case at bar do not involve the
Fourth Amendment. The illegality at issue in these cases
involves the Fifth Amendment - a failure by police to honor
a request for counsel. Because Brown v. Illinois did not
purport to discuss this issue, and indeed was specifically
limited to one particular aspect of Fourth Amendment law,
the Illinois Supreme Court erred by relying upon Brown in
People v. White. Similarly, the appellate court erred by
relying upon White in the case at bar.
In Miranda, this Court adopted a per se rule tnat where
a suspect requests the assistance of counsel, the interroga-
tion must cease until an attorney is present. 384 U.S. 436,
474. In Brown, this Court held that a per se rule was not
-24-
necessary to protect the interests served by the Fourth
Amendment. On one hand, this Court held, a per se rule that
Miranda warnings removed the taint of an illegal arrest
would encourage violations of the Fourth Amendment because
any illegality could be cured by giving the warnings. 422
U.S. 590, 602-603. On the other hand, this Court also
rejected a per se rule that Miranda warnings could never
cure an illegal search, holding that an admittedly illegal
arrest might have no effect upon the suspect's decision to
make a statement.
Under the Fifth Amendment, different considerations are
involved. The per se rule of Miranda prohibiting all
questioning after counsel is requested:
was based on this Court's perception
that the lawyer occupies a critical
position in our legal system because
of his unique ability to protect the
Fifth Amendment rights of a client
undergoing custodial interrogation.
- + «[T]he lawyer is the one person
to whom society as a whole looks as
the protector of the legal rights of
_ that person in his dealings with the
_ police and the courts. For this rea-
son, the Court fashioned in Miranda
the rigid rule that an accused's re-
quest for an attorney is per se an
invocation of his Fifth Amendment
rights, requiring that all interro-
gation cease.
Fare v. Michael C., 442 U.S. 707,
< ‘ 7, 99 S.Ct. 2560
(1979)
The Miranda warnings are intended to protect Fifth
Amendment rights against the "compulsion inherent in custo-
dial surroundings." Brown v. Illinois, 422 U.S. 590, 600.
The warnings cannot serve this purpose if repeating them is
allowed to cure a refusal to honor exercise of those rights.
This Court's conclusion in Miranda that a suspect who is
advised of his Fifth Amendment rights will be able to re-
sist compulsion necessarily rests on the assumption that a
=-25=
suspect who is aware of his rights has an option to re-
fuse to talk to police. This premise is totally destroyed
where police are not obligated to conscientiously honor a
defendant's exercise of his Fifth Amendment rights.
Where a request for counsel is greeted by a repetition
of the Miranda warnings, the implication to the accused is
that the police will not honor his request and that it is
useless to ask again. Therefore, the warnings not only fail
to reduce the effect of coercion, but may increase that
effect because the suspect might conclude that even though
he has certain rights, the police will not permit him to
exercise them.
The case at bar demonstrates the danger of any rule
permitting a defendant's statement to be introduced after he
has attempted to exercise his Fifth Amendment rights. Only
minutes after petitioner requested counsel, he was readvised
of his rights and questioned concerning the offense. Inves-
tigator Hartshorn, who conducted the interrogation, and who
supervised five additional interrogations over the following
twenty-eight hours, testified that he knew that petitioner
had just requested counsel. (Vol. II, C. 236) Hartshorn
gave no explanation for his decision to renew interrogation,
and the record does not reflect any extenuating circumstances
which could possibly justify renewed questioning. Under the
circumstances, the conclusion is unavoidable that the only
purpose for readvising petitioner of his rights was the
hope that he would make a statement without repeating his
request for counsel.
On the other hand, where police know that a suspect's
request for counsel must be honored, and that any statement
obtained without permitting consultation with counsel will
be suppressed, there is little incentive to "try again" to
see if the suspect will fail to repeat his request.
-26-
és
ie Set
However, should this Court find that under certain
circumstances, intervening circumstances may remove the
"taint" of a refusal of a request to consult with counsel,
the statements in the case at bar should be suppressed
nonetheless. In Brown v. Illinois, this Court mentioned
four factors which should be considered in determining
whether a confession was obtained by exploitation of an
illegal arrest. The same factors are relevant to a deter-
mination of whether a statement was obtained by exploiting a
refusal to honor a request for counsel. As applied to this
question, the factors in Brown are whether Miranda warnings
were repeated, the temporal proximity of 'the arrest and the
confession, the presence of intervening circumstances, and,
most importantly, the purpose and flagrancy of police mis-
conduct. Brown v. Illinois, 422 U.S. 590, 603-604.
In the case at bar, application of these factors illus-
trates that petitioner's confession cannot possibly be consi-
dered a free and voluntary act independent of the failure to
honor his request for counsel. Although Miranda warnings
were repeated, the very act of repeating Miranda warnings
after refusing to honor defendant's prior request for coun-
sel is inherently coercive because the defendant is led to
believe that the police do not intend to honor his rights.
If repeated warnings can ever break the link between a
refusal to honor a request for counsel and a subsequent
statement, the police must be required to acknowledge that
the request has been made and that the officers are willing
to honor it. An explicit withdrawal of the request following
this explanation may be sufficient to break the causal
chain. However, it cannot be presumed that the statements
were voluntarily made merely because, after refusing the
request for counsel, the officers repeated the Miranda
warnings.
«27<
The appellate court also stressed the lapse of time
between Mr. James's request for counsel and his confessions.
Although twenty-four hours elapsed, it is not merely the
amount of time which is significant, but also the precise
conditions of the detention. See Rawlings v. Kentucky,
__U-S. __, 65 L.Ed.2d 633, 643, 100 S.Ct. ss (1980)
Here, petitioner was not left alee for twenty-four hours.
Nor was he exposed to a “congenial atmosphere" as in
Rawlings. Instead, he was interrogated five separate times
before making the first confession. In addition, Mr. James
testified that one of the officers said that it was necessary
to question him "30 times" because his answers "didn't sound
right" (Vol. II, C. 417), that he would be questioned until the
officers "found out something" (Vol. II, C. 425), and that
he could not receive a larger sentence on the murder than he
would receive on the related attempt murder case (Vol. II,
C. 418). Mr. James was also told that one of the police
officers knew that Mr. James was guilty, would see that the
victim's daughters found out, and would work on the case
while Mr. James was in prison on a parole violation so that
he would be arrested when he was released from prison.
(Vol. II, R. 425) After taking a polygraph examination, Mr.
James was told by one of the officers that "even his untrained
eye could see" that Mr. James had lied. (Vol. II, C. 426)
Finally, just before petitioner made his first confession,
he was told by police that the questioning would stop if a
Statement was made. (Vol. II, C. 428) All of these factors
are relevant to determine whether petitioner's confessions
were truly a product of his free will or were obtained by
exploitation of the refusal to honor his request for counsel.
-28-
If the passage of time under these conditions is held
to cure the failure to honor a request for counsel, the
protections of Miranda v. Arizona will be reduced to a mere
formality. The police could insulate from attack any
Miranda violation by detaining the suspect for a period of
time, even though that period was consumed by repeated in-
terrogations and even though the defendant never expressed
a desire to talk to officers without consulting an attorney.
In finding that petitioner changed his mind voluntarily
and decided to talk, the appellate court emphasized that
petitioner was permitted to meet with his relatives, his
parole officer, and a friend. However, several hours and
two separate interrogations occurred between defendant's
request for counsel and the time he was allowed to speak to
anyone except police officers. Because his request for
counsel had been ignored, Mr. James may well have decided
that the police had no intention of permitting him to see an
attorney under any circumstances. 7
In addition, this Court should consider the testimony
of the witnesses who saw Mr. James on the evening of his
arrest. Petitioner's stepfather testified that Mr. James
said he had been held for seven or eight hours in a place
where he could not do anything except talk to police. (Vol.
II, C. 384-385) The stepfather testified that Mr. James
looked tired, bloody, and dirty. During the conversation
with his stepfather, Mr. James Slumped over the table and
had difficulty speaking. (Vol. II, Cc. 387-388)
The other person to see Mr. James on the day of his
arrest was his mother, who testified that Mr. James said
that he did not want to talk to the police but had been
forced to do so. (Vol. II, C. 391-392) The mother also
testified that petitioner's face was scratched and looked
alternatively flushed and pale. She testified that Mr,
James was crying, clenching his hands, and speaking in a low
voice. (Vol. II, C. 406-407)
es
The fact that petitioner was pe~mitted to see other
persons on the following day is even less probative. At the
time petitioner spoke to his father and Carolyn Burris, he
had been held for more than twenty-four hours and had just
made an oral confession. In addition, petitioner's father,
who was the first person other than police officers to talk
to him the day following his arrest, told Mr. James that the
police had made him promise to give a full statement of
everything which was said during their conversation.
At most, the record in this case shows only after his
request for counsel was refused, petitioner failed to repeat
that request. The burden is on the prosecution to establish
that petitioner's confessions were not obtained by exploita-
tion of the Miranda violation. Brown v. Illinois, 422 U.S.
590, 604. The record contains no indication that petitioner
ever affirmatively stated that he no longer wanted an attor-
ney or that he wanted to talk without an attorney. Even the
four waiver forms, upon which the appellate court placed
primary emphasis, did not contain an express statement that
petitioner wished to talk to officers without an attorney.
In Brown, this Court held that the most important
factor to be considered was the purpose and flagrancy of the
police misconduct. 422 U.S. 590, 604. In the case at bar,
there can be little doubt that the failure to honor peti-
tioner's request for counsel was a deliberate attempt to
obtain a statement despite that request. Investigator
Hartshorn, who conducted three of the six interrogations and
who ordered other officers to conduct the other three,
testified that he was aware of petitioner's request for
counsel before the first interrogation began. Hartshorn
gave no explanation for his decision to renew interrogation,
and the record suggests no extenuating circumstances which
could possibly justify that decision. The failure of any of
-30-
the officers to acknowledge that petitioner had requested
counsel or to even ask petitioner directly whether he wanted
to consult an attorney compels the conclusion that the deci-
sion to reinterrogate was a deliberate attempt to thwart
petitioner's exercise of his Fifth Amendment rights. The
circumstances under which Mr. James was detained and inter-
rogated preclude a finding that his confessions were a pro-
duct of his free will, and strongly suggest chat the police
eventually cbtained petitioner's statements only by exploiting
their refusal to honor his request for counsel.
=3l-
vi.
CONCLUSION Py
For the foregoing reasons, Thomas Ray James, petitioner,
respectfully requests that a writ of certiorari be issued to
the Appellate Court of Illinois, Fourth Judicial District.
Respectfully submitted,
DAVID P. BERGSCHNEIDER
° Assistant Defender
Office of the State Appellate Defender
Fourth Judicial District
300 East Monroe, Suite 102
Springfield, IL 62701
(217) 782-3654
DANIEL D. YUHAS COUNSEL FOR PETITIONER
Deputy Defender
OF COUNSEL
@-32<
APPENDIX A
936 Ill. 402 NORTH EASTERN REPORTER, 2d SERIES
82 Ill.App.3d 551 3. Homicide @ 166(3)
37 Ill.Dec. 934 In murder case in which State contend.
The PEOPLE of the State of Illinois, —_ ed that motive for defendant’s conduct was
Plaintiff-Appellee, desire to develop close relationship with a
v.
Thomas Ray JAMES,
Defendant-Appellant.
No. 15485.
Appellate Court of Illinois,
Fourth District.
March 28, 1980.
Rehearing Denied April 28, 1980.
Defendant was convicted in the Circuit
Court, Vermilion County, Ralph S. Pear-
man, J., of murder and he appealed. The
Appellate Court, Mills, P. J., held that: (1)
defendant's statement to arresting officers
that he would like to talk to an attorney
was sufficient to assert his right to counsel;
(2) evidence established that defendant,
who had requested counsel, had subsequent-
ly retracted his request and waived his
right to counsel before confessing; (8)
where State contended that motive for de-
fendant's conduct was desire to develop a
close relationship with a woman and to
prevent anyone else from developing such a
relationship, evidence which tended to show
defendant's attempts to ingratiate himself
with woman was relevant to show that he
may have been hostile toward the victim
who had stayed at woman's home until 11 p.
m. on the day preceding victim's death and
the evidence was not inadmissible simply
because it may also have tended to preju-
dice the defendant.
Affirmed.
1, Criminal Law @=412.2(1)
Defendant's statement to arresting of-
ficers that he would like to talk to an
attorney was sufficient to assert his right to
counsel,
2. Criminal Law @=531(3)
Evidence established that defendant,
who had requested counsel, subsequently
retracted his request and waived his right
to counsel before confessing.
woman and to prevent anyone else from
developing such relationship, evidence
which tended to show defendant's attempts
to ingratiate himself with woman was rele.
vant to show that he may have been hostile
toward the victim who had stayed at wom.
an’'s home until 11 p. m. on the day preced.
ing his death and that evidence was not
inadmissible simply because it may have
tended to prejudice the defendant.
4. Homicide @174(8)
Where note signed with nickname was
found in kitchen in which yictim’s body was
discovered and the note had been left at
victim's residence on day before the killing
by college classmate of victim, evidence
concerning defendant's reference to that
nickname in his phone conversation with
another person following the killing was
admissible as circumstantial evidence of de-
fendant’s presence at victim's residence at
time of the shooting and defendant's at-
tempt to explain the use of the nickname as
referring to another person did not bar
admission of the evidence.
Richard J. Wilson, Deputy State Appel-
late Defender, David Bergschneider, Asst.
State Appellate Defender, Springfield, for
defendant-appellant.
Thomas J. Fahey, State's Atty., Danville,
Gary J. Anderson, Acting Deputy Director,
State's Attys. Appellate Service Commis-
sion, Robert J. Biderman, Staff Atty.,
Springfield, for plaintiff-appellee.
MILLS, Presiding Justice:
Murder—40 years.
Issue: Miranda.
We affirm.
James was found guilty by a jury of
murder and armed violence. Judgment was
PEOPLE v. JAMES Ill. 937
Cte as 402 N.E.2d 936
entered only on the murder charge and a
sentence of 40 years’ imprisonment was im-
posed. (This sentence is to be served con-
secutive to a 30-year sentence imposed on
an attempt murder conviction which is now
on appeal to this court in Case Number
15306.) Defendant challenges his murder
conviction, arguing that the trial court
erred in denying a motion to suppress his
confession and further erred in admitting
evidence as to certain telephone calls that
defendant made after the victim’s death.
SUPPRESSION HEARING
Prior to trial, defendant moved to sup-
‘press certain statements he made to police
officers following his arrest. A review of
the evidence presented at the suppression
hearing, where Judge Paul M. Wright pre-
sided, shows that defendant was arrested in
a rural area of Vermilion County at approx-
__ imately 5 p. m. on May 17, 1978. During
"the evening hours of the day before, the
« defendant had been involved in an alterca-
. tion with Samuel Cartwright and defendant
knew the police were looking for him in
connection with this incident. When the
" arresting officer, Terry Carey, arrived at
«. defendant's location, defendant held out his
hands, and said, “I did it.” Defendant was
f. then searched, handcuffed, and placed in
i, Carey's squad car. Carey did not question
-> defendant other than to ask his name.
3” While en route to the Public Safety
Rs Building in Danville, Officer Carey radioed
* headquarters to request that the sheriff and
3 an investigator meet him. Defendant
_ tsked Carey if he would be allowed to make
& phone call at the jail to which Carey
‘tesponded affirmatively. About a minute
later, defendant requested that Carey in-
form him of his rights and Carey did so.
Shortly thereafter, defendant asked if he
tould make a second phone call if necessary
and Carey said he could. After another
minute or two passed, defendant said that
“he would like to talk to an attorney.”
Garey told him he would be allowed to do
did not attempt to question de-
fendant during the trip to Danville.
Later, while still traveling in Carey’s
squad car, defendant asked how seriously
the man was injured. Carey responded,
“Who?” Defendant then told Carey he was
referring to the incident the night before
and Carey did not respond. Defendant
then asked how long he would get and
Carey asked, “For what?” Defendant
again stated he was referring to the inci-
dent on the previous night. Carey did not
reply but once again told defendant he
would be allowed to use a phone at police
headquarters.
When they arrived at police headquar-
ters, Carey told police investigator William
Hartshorn that defendant had been advised
of his rights, had asked to speak to an
attorney and to use the telephone. Carey
also told Hartshorn that he had advised
defendant that he could do so. During this
conversation, defendant was in an interview
room in the Public Safety Building.
Shortly after his conversation with Carey,
Hartshorn and investigator Larry Rollins
went to the interview room to talk to the
defendant. Defendant requested the pres-
ence of a certain police officer he was fa-
miliar with and this officer was summoned
to the room.
At approximately 6:20 p. m.—one hour
and 20 minutes after his arrest—the de-
fendant was advised of his rights by investi-
gators Hartshorn and Rollins. He initialed
a written form to indicate he understood his
rights and then (according to Hartshorn)
agreed to answer questions without the
presence of an attorney. Hartshorn and
Rollins then questioned the defendant
about the Cartwright incident until 8:55 p.
m. During this period, however, the ques-
tioning was interrupted several times. At
6:58 p. m. it was interrupted until 7:24 p. m.
and during this time the defendant was
served supper. The interview again halted
from 8:21 p. m. until 8:53 p.m. At the end
of this break, defendant asked to make a
phone call and the officers took him to
another room where he called his employer.
After this phone call, the defendant was
asked if he wanted to make another call
and he declined the offer. (The defendant
-A2-
938 Ill. 402 NORTH EASTERN REPORTER, 2d SERIES
did not ask his employer to contact an at-
torney but he did ask the officers when he
would be taken to court. This question
came after defendant was overheard dis-
cussing the possibility of bail with his em-
ployer. Defendant was told he would be
taken to court at 1:30 p. m. on the following
day.)
From 9:05 until 11 p. m. defendant was
questioned by police officers Robert Le-
Conte and Gene Woodward regarding the
shooting death of David Holler which oc-
curred on May 8, 1978. Prior to this inter-
view, defendant was again advised of his
rights and he signed another waiver form.
At 11 p. m. he was allowed to speak to his
mother and stepfather. They were togeth-
er until 11:50 p. m. when defendant was
placed in a cell. The statements which
defendant had made to the officers on May
17 were basically exculpatory.
Investigator Rollins testified that at 11 a.
m. the following day, May 18, he and Hart-
shorn went to defendant’s cell and asked him
if he wanted to talk with the officers. De-
fendant agreed and he was then taken to
the interview room where he was once more
advised of his Miranda rights and again
waived them. As was previously done, each
paragraph of the form was read to defend-
ant and he was asked if he understood his
rights or had any questions. He responded
that he understood the form and had no
questions. After this procedure was con-
cluded, defendant was questioned about the
death of David Holler. Hartshorn and Rol-
lins concluded this questioning at 1 p. m.
The defendant was served lunch and met
with his parole officer from 1 until 2 p. m.
Defendant testified that the investigators
had already told him that his parole had
been revoked but they denied this. They
testified that during the previous question-
ing defendant had expressed concern about
his parole and they decided to call the pa-
role officer to talk to defendant about this.
From 2 until 2:55 p. m. defendant was in
the interview room by himself awaiting the
arrival of a polygraph examiner. After a
fifth repetition of the Miranda warnings
and another waiver of these rights by de-
fendant, a polygraph examination was con-
ducted. It concluded at 4 p. m. and Harts-
horn and Rollins then questioned defendant
until 4:25 p. m. Investigators LeConte and
Woodward questioned the defendant from
4:30 urtil 6:05 p. m. and during this session
the defendant, for the first time, admitted
knowing—and shooting—David Holler.
At 6:10 p. m. defendant was served din.
ner and then spoke with his father from
7:30 until 8:10 p. m. Carolyn Burris, an
acquaintance defendant had asked to speak
with, met with him from 8:30 until about 9
p. m.
Investigators LeConte and Woodward,
after again advising defendant of his rights
and obtaining a waiver, took a written
statement from about 9 until 10:45 p. m.
According to this statement, the defendant
had seen David Holler on May 7 on a road
near Carolyn Burris’ home. He later went
to Holler’s home and, at Holler’s insistence,
killed him. During this questioning, de-
fendant also drew several sketches of the
crime scene. After the questioning was
completed, defendant met with his mother
until 11:45 p. m.
Each of the individuals who talked to the
defendant on May 17 and 18 testified that
he did not tell them he had been refused an
attorney. Defendant's parents testified
that he looked tired and pale and had diffi-
culty speaking.
Defendant is a 26-year-old man and was
the assistant manager of a Hills Brothers
shoe store at the time of his arrest. He
admitted that he had been questioned by
police on previous occasions and further tes-
tified that when he arrived at the Public
Safety Building on May 17 he asked to
make a phone call and to be taken to a
hospital because he was cut and bruised
from his altercation with Cartwright and
chilled from being outside since 5 a. m. May
16. He also testified that he had no sleep
since that time. Investigator Hartshorn
testified that defendant did not make such
requests and, in fact, refused an offer of
medical treatment.
-A3-
PEOPLE v. JAMES Il. 939
Cite as 402 N.E.2d 936
Defendant admitted that on May 17 he
to talk to the officers about the
Cartwright incident. He testified that la-
ter that evening he told the officers that he
saw no point in talking further with them
but they responded that it was necessary to
ask him each question 30 times. Defendant
denied that the officers allowed him to use
the phone to call his employer and stated
that he did not recall speaking with his
mother or stepfather on May 17.
According to defendant, he gave the po-
lice the statement and drew the sketches of
the Holler residence because he wanted the
questioning to end. He also testified that
the police had threatened to continue work-
ing on the Holler case and see that defend-
ant was arrested when he was released
from prison. The officers denied this.
They testified that no promises or threats
were made to defendant. Defendant ad-
mitted that he did not again request an
attorney but explained that this was be-
cause he had been told that an attorney
could not help him. He agreed to take the
polygraph examination only after the offi-
cers told him that the questioning would
stop if he passed it.
Defendant further testified that on sever-
al occasions he expressed a desire to stop
the interview but the police persisted.
When told that the questioning would stop
if he gave a statement, defendant agreed to ~
do so. He could not tolerate returning to
prison on a parole violation knowing the
State was attempting to convict him on
enother charge. He did, however, admit
that the statement was not forced.
At the conclusion of the suppression hear-
ing, the trial court denied defendant's mo-
tion to suppress, ruling that defendant's
initial statement to Officer Carey was
merely an inquiry or request for informa-
tion and not a request for counsel. The
' court found that defendant agreed to talk
to the officers and did so knowingly and
voluntarily.
: Defendant does not argue that this case
presents an issue as to the voluntariness of
his confession but contends that the police
« Violated his Miranda rights by refusing his
request for an attorney. He argues that
the State failed to show that he subsequent-
ly withdrew his request for counsel and
therefore his statements were inadmissible
because they were the fruits of illegal police
conduct.
We disagree.
Whether a defendant’s statements to po-
lice officers following his arrest were suffi-
cient to constitute a request for counsel has
previously been considered by the courts of
this state. (People v. Morrissey (1977), 49
Ill.App.3d 622, 7 Ill.Dec. 293, 364 N.E.2d
454; People v. Rafac (1977), 51 Ill.App.3d 1,
7 Ill.Dec. 700, 364 N.E.2d 991; People v.
Starling (1978), 64 I}|.App.3d 671, 21 Ill.Dec.
490, 381 N.E.2d 817.) The present case is
readily distinguishable from any of the cit-
ed cases because here defendant’s state-
ment was in the most unambiguous lan-
guage. The trial court, however, looked to
the circumstances surrounding defendant's
request (including the numerous other ques-
tions propounded to the arresting officer),
and concluded that defendant was merely
seeking information as to whether he would
be allowed an attorney if he so desired.
The court did not believe that defendant's
statement that “he would like to talk to an
attorney” was sufficient to invoke his right
to the presence of an attorney during custo-
dial interrogation. See Miranda v. Arizona
(1966), 384 U.S. 436, 86 S.Ct. 1602, 16
L.Ed.2d 694.
{1] Contrary to the trial court's ruling,
we believe defendant's statement to Officer
Carey while en route to the Public Safety
Building was sufficient to assert his right to
counsel. Here, defendant’s statement was
more than the mere suggestion that per-
haps he should speak to an attorney which
was held to be an insufficient indication of
a desire to consult with counsel in People v.
Krueger (1979), 74 Ill.App.3d 881, 30 Ill. Dec.
936, 393 N.E.2d 1283. Defendant's request
was in the most unambiguous and unequiv-
ocal of terms. And it is not without signifi-
cance that the arresting officer interpreted
the statement as a request for counsel.
Maglio v. Jago (1978), 580 F.2d 202.
-A4-
940 Ii. 402 NORTH EASTERN REPORTER, 2d SERIES
A resolution of whether defendant re-
quested counsel does not, however, termi-
nate our inquiry into the question of wheth-
er defendant's confession was properly re-
ceived in evidence. While some courts ap-
parently hold that the right to the assist-
ance of counsel can never be waived by a
Suspect whose initial request for an attor-
ney has not been honored (United States ex
rel. Williams y. Twomey, (7th Cir. 1972), 467
F.2d 1248), we believe the question is
whether the State has met the “heavy bur-
den” of showing that the defendant know-
ingly and intelligently waived his right to
retained or appointed counsel. People vy.
Washington (1977), 68 Ill.2d 186, 11 Ill.Dee.
603, 369 N.E.2d 57, cert. denied (1978), 435
U.S. 981, 98 S.Ct. 1631, 56 L.Ed.2d 72; see
also White v. Finkbeiner (7th Cir. 1978), 570
F.2d 194 (where the court acknowledged
that the State’s request to overrule or dis-
tinguish Williams was an argument not to
be lightly dismissed).
[2] The defendant argues that the State
failed to meet this heavy burden and that
his statements were inadmissible. Because
of its ruling that defendant did not request
counsel, the trial court did not rule that the
defendant had voluntarily retracted his re-
quest. Defendant argues that this court
should reach that question and rule that
defendant did not withdraw the request.
The court did rule that defendant agreed to
talk to the officers and did so knowingly
and voluntarily. The court therefore found
that defendant's action in signing the waiv-
er form presented by the officers and his
confession were the result of voluntary and
knowing acts. Implicit in that finding is a
waiver by the defendant of his right to
counsel. And, that decision is not against
the manifest weight of the evidence. (Peo-
ple v. Medina (1978), 71 Il.2d 254, 16 Ill.
Dec. 447, 375 N.E.2d 78.) While testifying
at the suppression hearing, defendant ad-
mitted that he agreed to talk to the officers
on May 17 and further testified that the
Statement he gave to them on May 18 was
not the result of force. His testimony that
he gave a statement only to stop the ques-
tioning was apparently rejected by the trial
court. The evidence shows that subsequent
to his request for counsel he agreed to talk
to the officers without an attorney being
present and he signed four forms which
stated that he waived his Miranda rights.
We believe that this evidence clearly shows
that defendant retracted his request for
counsel,
The situation presented here is not unlike
that presented to our supreme court in Peo.
ple v. White (1975), 61 Ill.2d 288, 335 N.E.2d
457, cert. denied (1976), 424 U.S. 970, 96
S.Ct. 1469, 47 L.Ed.2d 738, where the court
ruled that the effect of the procedural vio-
lation of Miranda was suff iciently dissipat-
ed so that the defendant's confession was
voluntary and, therefore, properly received
in evidence. In White, the police failed to
furnish the defendant (a borderline retar-
date) with an attorney on the morning of
his arrest on an unrelated offense. He was
questioned later that day and also during
the morning and afternoon of the following
day. On each of these three occasions he
was advised of his rights. With respect to
the offense involved in the appeal, the de-
fendant was not questioned until the third
day and then only after receiving the full
Miranda warnings. The supreme court af-
firmed his conviction because the effect of
failing to provide him with counsel on the
morning of his arrest was sufficiently dissi-
pated by the time of his confession during
the morning of the second day following
the arrest. Among the factors discussed by
the court in White were the lapse of time
between the violation and the confession,
the repeated admonitions, the fact it was
not the first time the defendant had been
charged with a crime, and that the subse-
quent waiver of the right to counsel oc-
curred during questioning about an offense
unrelated to the offense for which the de-
fendant invoked the right.
Similarly, here defendant was advised of
his six times and si four differ-
ent written waivers of tween
The time oF his arrest
me 18 at approximately 5 p.
m. on May 17 and his confession which was
obtained sometime after 4:30 p. m. on May
18. While repeated admonitions alone will
not always break the causal connection be-
-AS-
—
PEOPLE vy. JAMES Ml. 941
Clte as 402 N.E.2d 936
tween the illegality and the confession
(White), such factor is not to be disregard-
ed. Not only did defendant sign the four
waiver forms but, according to investigator
Hartshorn’s testimony, defendant agreed to
answer the officer's questions without an
attorney being present.
Other factors affecting the admissibility
of defendant’s confession include the pas-
‘ sage of nearly 24 hours between the viola-
‘ tion of Miranda and the statement sought
to be suppressed. Thus, the interrogation
* which produced the confession did not im-
‘ mediately follow the request for counsel
‘and during the interim defendant was al-
lowed numerous breaks, including an 11-
hour period where he was allowed to sleep.
He was also allowed to meet with his moth-
er, father, stepfather, Carolyn Burris, and
his parole officer. According to the police
officer’s testimony, defendant’s request to
use the telephone was granted and he de-
_ clined an offer to make additional calls.
(See People v. Smith (1969), 108 Ill.App.2d
172, 246 N.E.2d 689, cert. denied (1970), 397
U.S. 1001, 90 S.Ct. 1150, 25 L.Ed.2d 412.)
We also note that unlike the defendant who
‘ was a borderline retardate in White, this
defendant was 26 years old, had a high
. school education, and was the assistant
- manager of a Hills Brothers shoe store. At
the time of his arrest he was on parole and
certainly no stranger to the criminal justice
system. He admitted that he had been
questioned by police officers prior to this
~ incident.
S| Furthermore, an examination of the cir-
_ Sumstances surrounding defendant's re-
quest for counsel shows that it was made at
a time when defendant was expressing con-
_, @™ about an offense different from the
_. offense involved in this appeal. Under the
_ Gireumstances of this case, and contrary to
&. Gefendant’s assertions, we believe that the
#).fecord clearly shows that defendant know-
~~ ingly and voluntarily withdrew his request
F for counsel. Additionally, we conclude that
the effect of the procedural violation of
was sufficiently dissipated so that
2, defendant's statements were voluntary and
; ly admitted.
a?
ras
THE TRIAL
The State attempted to show defendant's
motive for taking the life of David Holler
by presenting evidence that for some time
prior to the death of Holler the defendant
had attempted to develop a close personal
relationship with Carolyn B: rris. The de-
fendant had visited her hore on several
occasions and as he was concluding one of
these visits he suddenly kissed Ms. Burris.
The following day Ms. Burris went to the
shoe store where defendant was employed
to tell him that she did not want to become
romantically involved. Defendant put his
arm around her and she told that she had a
boyfriend whom she did not want to lose.
Burris’ statements to the defendant did
not halt his visits to her home and on May 6
he unexpectedly arrived there at about
10:30 p. m. Burris, who had been asleep,
told defendant that she had to get up early
the next day and that he should not come
by her house unless he first telephoned her.
On Sunday, May 7, the victim (David
Holler) visited Burris at her place of em-
ployment to return some materials he had
borrowed. He accepted an invitation to her
home where he played chess with her chil-
dren, ate supper, and left at about 11 p. m.
David Holler died between 3 and 7 a. m.
on May 8, 1978, from gunshot wounds to his
head. His body was discovered in the kitch-
en of his home by his parents on the same
date. A note signed “Debbie” was also
found in the kitchen on a table. It had
been left at Holler’s residence on May 7 by
Debbie Jones, a classmate of Holler’s at a
local junior college. She had stopped by
Holler's home to return some items and
when she discovered he was not at home
she left the note.
Carolyn Burris learned of Holler’s death
on May 8 at about 5 p.m. The following
day, after she talked to police, she called
defendant to tell him that he would proba-
bly be questioned by them. Over defense
objection, Burris testified that she received
a phone call from defendant on May 15. In
the ensuing conversation, defendant told
her that he had been questioned by police
-A6-
942 Ill. 402 NORTH EASTERN REPORTER, 2d SERIES
and that Burris was under investigation for
murder. She also testified that the defend-
ant told her that he would see that she did
not go to jail.
Defendant testified that he told Burris
that the police had no suspects and that he
did not tell her the police had a good case of
murder against her. He admitted that he
told her that if she was in trouble, he would
do whatever he could.
Testimony was also presented, over de-
fense objection, which indicated that subse-
quent to Holler’s murder defendant called
Carolyn Burris’ former husband. During
the brief conversation, defendant men-
tioned the name “Debbie” to the former
husband. Defendant later testified that he
was referring to Carolyn Burris’ youngest
daughter.
Defendant now contends the trial court
erred in admitting evidence of the phone
calls which he made to Carolyn Burris and
to her former husband. He argued that
these phone calls were not relevant because
they had no probative value. If they had
any probative value, he contends it was
outweighed by the prejudicial effect. De-
fendant claims that his credibility was an
essential factor in his defense because he
needed to convince the jury that his confes-
sion was false. During the phone call to
Carolyn Burris, he allegedly made state-
ments which were not supported by other
evidence in the record and, defendant ar-
gues, the jury may have concluded that he
lied when he told Burris that the police
suspected her of committing the murder.
In addition, defendant and Burris gave con-
flicting testimony concerning the content of
this call and again defendant argues his
credibility was adversely affected.
[3] We disagree with defendant's con-
tentions. His phone call to Carolyn Burris
was relevant (as the State contends) be-
cause it tends to support the State’s theory
that the motive for defendant's conduct
was a desire to develop a close relationship
with Burris and to prevent anyone else
from developing such a relationship. Evi-
dence is admissible if it fairly tends to
prove the offense charged. Any circum-
stances may be put into evidence which
tend to make the proposition at issue either
more or less probable. (People v. Galloway
(1963), 28 Il].2d 355, 192 N.E.2d 370, cert.
denied (1964), 376 U.S. 910, 84 S.Ct. 665, 11
L.Ed.2d 608.) The only evidence to connect
the defendant to David Holler was Carolyn
Burris. Certainly evidence which tended to
show defendant's attempts to ingratiate
himself with Burris was relevant to show
that he may have experienced hostility to-
ward the man who stayed at her home until
11 p. m. on the day preceding his death.
This testimony was not inadmissible simply
because it may also have had a tendency to
prejudice the defendant. People v. Hair-
ston (1970), 46 Ill.2d 348, 263 N.E.2d 840,
cert. denied (1971), 402 U.S. 972, 91 S.Ct.
1658, 29 L.Ed.2d 136.
[4] The evidence concerning defendant's
reference to “Debbie” in his phone conver-
sation with Burris’ former husband was of-
fered by the State to establish defendant's
presence at Holler’s residence at the time of
the shooting. While defendant's reference
to “Debbie” did not conclusively prove his
awareness of the note found at Holler’s
residence, the testimony was circumstantial
evidence of defendant's presence at the
scene and as such properly admissible.
That defendant attempted to explain this as
a reference to Burris’ daughter did not bar
admission of this evidence.
Finally, in his brief defendant argued
that imposition of a consecutive sentence
was error because the trial court's act in not
imposing an extended term of imprison-
ment was tantamount to a conclusion that
consecutive sentencing was not required to
protect the public from further criminal
conduct by the defendant. (People v. Daw-
son (1975), 30 Ill_App.3d 147, 332 N.E.2d 58.)
During oral argument, however, defendant
properly withdrew this argument on the
basis of our supreme court's opinion in Peo-
ple v. Snyder (1979), 77 I1l.2d 459, 34 Ill. Dee.
127, 397 N.E.2d 799.
Affirmed.
CRAVEN and WEBBER, JJ., concur.
-A7-
» APPENDIX B
STATE OF ILLINOIS
APPELLATE Corrt AL
FOURTH DISTRICT
Thomas 2. Acopieton, .. ex SPRINGFIELD 62701
TELEPHONE
4PC€a CODE 217
762-2586
DATE: April 28, 1980
RE: People v. James
General No. 15485
Vermilion 78-CF-127
TO COUNSEL:
The Court today denied the petition for rehearing
in the above entitled cause.
The mandate of this Court will issue in 7 days to
the Clerk of the Circuit Court unless an affidavit of intent
to seek review in the Supreme Court [Rule 368(b)] is filed
in this Court.
THOMAS R. APPLETON, Clerk
Appellate Court
Fourth District
TRA: pd
TO:,. Daniel D. Yuhas/David Bergschneider
Thomas J. Fahey
Gary 3. Anderson
-Bl-
APPENDIX C
September 29, 1980
934/44 SAL-oprida.
ILLINOIS SUPREME COURT
CLELL L. WOODS, CLERK
SUPREME COURT BUILDING
SPRINGFIELD, ILL. 62706
(217) 782-2035
r
State Appellate Defender
Fourth Judicial District
300 E. Monroe = Suite 102
Springfield, Illinois 62701
.
No.
53474 = People State of Illinois, respondent, vs. Thomas
Ray James, petitioner.
Leave to appeal, Appellate
Court, Fourth District.
The Supreme Court today denied the petition for
leave to appeal in the above entitled cause.
Very truly yours,
CM, Weak
Clerk of the Supreme Court
Time eg. esa Began
wt ay scleeat Ses tt as za ee { oe , ahtess ae
era Rican iRise £1): Rea, SR ea
Iga PEOPLE’: s “EXHIBIT NO, 45: ‘| "a ae ie ae Sak log
eee INTERROGATION FORM ra COUNT EPORT
“pate S$ -/ 7-7 F airs RB No. No ZI-B2Y2.
(This form is to be used by all police officers who intend to subject any person in custody to interroga-
tion. It must be filled out carefully and attached to the Original police report).
Name of person in custody 7 Homa Ss R. Jame bf
' Address / Z2:n0!1S Si ciy JAN VILE State_.2 2 d—
Extent of formal education __ 7/22 Y2S, Male X a NO
- Time Custody Began SYS ami» Date SS 7-7 TF
Place Custody Began Kz be, Arresting Officers De«P. CARIY
Custodial Officers at Time of Interrogation 0 ETA i Lown TH
*. * Place of Interrogation ZA ) 22 View Room 237 he
ZO “ fi: EL// Time Interrogation Ended Z VE */ Ss f7 ULE
ot THIS | Is TO BE READ, IN-KULL, BY THE OFFICER — THE SUBJECT ‘MUST THEN READ IT BACK
oe
TO OFFICER:
_ a right to remain silent
_~ (subject's initials)
» hereby state that | have been shea that | have
d
have to talk with the officer(s) unless | want to do so
—
” | know that if I do say anything fiat what | say can and will be used as evidence against me fo? the —
crime of 42
of which | have been accused.
| know that | have a right
.. | understand that
any cost to me.
-
LZ or any other crime (list offense)
ZF (subject's initials) “eh
sult a laWyer and have a lawyer present while | am being questioned.
ble to pay for the lawyer, | can have a lawyer appointed for me without
(subject's initials)
to con
"ial
Knowing and underst#hding these rights, | waive them at this time and agree to talk with the officer(s); ;
ding also that if | desire to stop talking to the officer(s) at any time, | am free
knowing and unders
to do so.
| make this waiver freely
! ties that the above wa
recorded above are t
Interrogating Offic
Witnessing Officer
a
corm.
(subject's initials)
and voluntarily without any force, promises or threats.
rnings were read t by me on
in custody
ad the statement of rights back to me, and that the initials
of the subject in eR
id
Badge Number a r=
Badge Number OT: #9
Other Witness: Name
Address
Name
“Address
FORM 2-11-75
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.