Petition — James v. Illinois

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Text

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 ;

ih vt .

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.

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