Opposition — James v. Illinois

REC EIVED

JAN 28 1981

OFFICE OF T,

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NO. 80-5799

Cw IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1980

Petitioner,

THOMAS RAY JAMES,

STATE OF ILLINOIS,

Respondent.

On Petition For A Writ Of Certiorari

To The Appellate Court of Illinois, Fourth

Judicial District

RESPONDENT'S BRIEF IN OPPOSITION

TYRONE C. FAHNER,

Attorney General

State of Illinois

MELBOURNE A. NOEL, JR.,

MARK L. ROTERT,

CAROLYN B. NOTKOFF,

Qo Assistant Attorneys General

| 188 W. Randolph St., Suite 2200

Chicago, Illinois 60601

(312) 793-2570

COUNSEL FOR RESPONDENT.

QUESTION PRESENTED FOR REVIEW

Whether Miranda v. Arizona requires a per se

proscription against questioning of a suspect after a

request for counsel is freely withdrawn?

TABLE OF CONTENTS

Page

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REASONS FOR DENYING THE WRIT:

I. THE ILLINOIS APPELLATE COURT

CORRECTLY DECIDED THAT PETITIONER'S

RIGHT TO COUNSEL WAS PROPERLY

SE ENe al Sci Siam on Sisiem cd's’) 0 oie 3

A. Miranda v. Arizona Does Not

equire er Se Proscription

Py tag Questioning Of A Suspect

After A Request For Counsel

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B. Petitioner Effectively Withdrew

His Request For Counsel.............. 8

II. THIS COURT NEED NOT CONSIDER WHETHER

INTERVENING EVENTS CURE AN ALLEGED

FAILURE TO HONOR A REQUEST FOR

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CITATIONS

Cobbs v. Robinson, 528 F.2d 1331 (2d Cir. 1975),

cert. denied, 424 U.S. 947 (1976) ....... cee eeeeeececees

Fare v. Michael C., 442 U.S. 707 (1979) ....c ccc ccc cc cece

Faretta v. California, 422 U.S. 806 (1975) ...............

Johnson v. Zerbst, 304 U.S. 458 SE Ss Ble kG d's vin a had bke-e<

Maglio v. Jago, 580 F.2d 202 (6th Cir. 1975) ia vieRaaee Spied

Mmenseee wv. Mossey, 423 0.8. 96 C197S) oo... ccc cccecccc dec

Narencs ¥. Arigona, 364 U.S. 436 (1966)... ..ccsccccccccen

Nash v. Estelle, 5°7 F.2d 513 (Sth Cir. 1979) (en banc)

North Carolina v. Butler, 441 U.S. 369 (1979) ............

People v. James, 82 Ill. App. 3d 551, 402 N.E.2d 936 (1980)

Rhode Island v. Innis, _ U.S. ___, 100 S.Ct. 1682,

L.Ed. DP OAS LE kak AROS SERRA COOA face e Chee

United States v. Grant, 549 F.2d 942 (4th Cir.), cert.

Ce MERE Ss UE ee

United States v. Monti, 557 F.2d 899 (lst Sir. 1977) .....

United States v. Rodriguez-Gastelum, 569 i*.2d 482

(th Cir.) (en banc), cert. denied, 436 U.S. 919 (1978) .

White v. Finkbeiner, 611 F.2d 186 (7th Cir. 1979),

petition for cert. pending, No. 79-6601 ................

iii

NO. 80-5799

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1980

THOMAS RAY JAMES,

Petitioner,

STATE OF ILLINOIS,

Respondent.

On Petition For A Writ Of Certiorari

To The Appellate Court of Illinois, Fourth

Judicial District

RESPONDENT'S BRIEF IN OPPOSITION

Respondent, the State of Illinois, requests that this

Court deny the petition for writ of certiorari, seeking review

of the Illinois Appellate Court's opinion in this case. That

opinion is reported as People v. James, 82 Ill. App. 3d 551,

402 N.E.2d 936 (1980).

ee. SO

STATEMENT OF THE CASE

The opinion below objectively and thoroughly sets

forth the facts in this case. People v. James, 82 Ill. App.3d

551, 402 N.E.2d 936, 937-9 (1980) (Appendix A at A2-A4). Re-

spondent adopts this summary as i.s statement of the case.

REASONS FOR DENYING THE WRIT

i.

THE ILLINOIS APPELLATE COURT CORRECTLY

DECIDED THAT PETITIONER'S RIGHT TO COUNSEL

WAS PROPERLY OBSERVED.

A.

Miranda v. Arizona Does Not Require A

er ve Froscription Against Questioning

Of A Suspect After A Request For Counsel

Is Withdrawn.

Petitioner states that in Miranda v. Arizona, 384 U.S.

436, 474 (1966), this Court established a per se rule "which

prohibits resumption of questioning once a request for counsel

has been made." However, nothing in that opinion, or any other

opinion of this Court, prohibits a suspect who has requested

counsel from freely withdrawing that request.

In detailing the procedures to be followed prior to

custodial police interrogation, this Court's foremost concern

was to protect a criminal suspect's fifth amendment privilege

against self-incrimination. Miranda, 384 U.S. at 467. _ The

right to counsel was intended to assist a suspect in deciding

whether to remain silent and was not based on the sixth and

fourteenth amendments. Id. at 469; Rhode Island v. Innis,

U.S. ; n.4, 100 S.Ct. 1682, 1689 n.4, 64 L.Ed.2d

297, 307 n.4 (1980).

Despite petitioner's assertion to the contrary,

Michigan v. Mosley, 423 U.S. 96, 104 n.10 (1975) did not char-

acterize the Mirar*- rule where counsel is requested as a per se

rule. | In Mosley, a suspect who had not requested counsel but

had invoked his right to remain silent, was found to have later

waived that right. This Court concluded that the Miranda

opinion does not “create a per se proscription of indefinite

duration upon any further questioning by any police officer on

. any subject, once the person in custody has indicated a desire

to remain silent." Mosley, 423 U.S. at 102-3.

Respondent does not challenge the continuing validity

of the Miranda decision or the procedures to be followed if-a

suspect in custody asks to consult with a lawyer. See Miranda,

384 U.S. at 474. Rather, respondent posits that since the

right to consult with a lawyer under Miranda is intended to

Protect a person's right to remain silent and is not based on

the sixth amendment, this right can likewise be withdrawn.

The reasoning behind the Mosley decision is equally

applicable to the instant case, where the court below concluded

that petitioner retracted his request for counsel. People v.

James, 82 Ill. App.3d 551, 402 N.E.2d 936, 940 (1980) (Appendix

A at A5). This Court explained in Mosley as follows:

To permit the continuation of custodial

interrogation after a momentary cessation

would clearly frustrate the purposes of

Miranda by allowing repeated rounds of

question to undermine the will of the per-

son being questioned. At the other ex-

treme, a blanket prohibition against the

_ taking of voluntary statements or a

permanent immunity from further interro-

gation, regardless of the circumstances,

would transform the Miranda safeguards into

wholly irrational obstacles to legitimate

police investigative activity, and deprive

suspects of an opportunity to make in-

formed and intelligent assessments of

their interests.

Mosley, 423 U.S. at 102.

Surely, if the right to remain silent, once invoked, can later

be relinquished, then the right to counsel which stems from the

prohibition against self-incrimination can, despite a prior

request, also be freely surrendered.

Petitioner cites Fare v. Michael C., 442 U.S. 707

(1979) and Rhode Island v. Innis, U.S. » 100 S.Ct. 1682,

64 L.Ed. 2d 297 (1980) to further support his position. How-

ever, neither case offers such support.

Fare, 442 U.S. at 719, pointed out that "the Court

fashioned in Miranda the rigid rule that an accused's request

for an attorney is per se an invocation of his Fifth Amendment

rights, requiring that all interrogation cease." This cannot be

interpreted to preclude a Suspect from waiving any of his rights.

Miranda, 384 U.S. at 475. Nor does this language rule out the

possibility that a suspect may later validly withdraw his request

for counsel. The Innis case, where the suspect had invoked his

held Miranda does not require a per se proscription against ques-

right to counsel, did not reach the issue of whether he “waived

his right under Miranda to be free from interrogation until coun-

sel was present" because the Court concluded the suspect had not

been "interrogated." Innis, 100 S.ct. at 1688 n. 2, 64 L.Ed.2d

at 306 n. 2.

Maglio v. Jagno, 580 F.2d 202 (6th Cir. 1978), another

case cited by petitioner, is also distinguishable. First, peti- |

tioner acknowledges that Maglio involved the sixth amendment

right to counsel, a right not at issue in the instant case. Id.

at 204. Second, the court in Maglio did not endorse a per se

interpretation of Miranda. The court merely opined that Miranda

and Mosley "strongly suggest that there is a per se rule barring

custodial interrogation of a suspect after a request for counsel

has been made." Maglio, 580 F.2d at 205. Third, the Maglio

decision did not preclude a waiver in an appropriate case:

If the police had reexplained Maglio's

rights and then withdrawn, allowing

the boy to consider his alternative, and

he had then initiated further communi-

cation with the police, we would be able

to find a waiver, and would have to face

the question of whether a per se rule

governs a request for comer.

Id. at 206.

The various federal circuit courts have overwhelmingly

tioning of a suspect after counsel is requested. White v. Finkbeiner,

611 F.2d 186 (7th Cir. 1979), petition for cert. filed, No. 79-6601;

United States v. Rodriguez-Gastelum, 569 F.2d 482 (9th Cir.)

(en banc), cert. denied, 436 U.S. 919 (1978); Nash v. Estelle,

597 F.2d 513 (Sth Cir. 1979) (en banc); United States v. Grant,

549 F.2d 942 (4th Cir.), cert. denied, 432 U.S. 908 (1977);

Cobbs v. Robinson, 528 F.2d 1331 (2d Cir. 1975), cert. denied, 424

U.S. 947 (1976).

In White, 611 F.2d at 191, the court explained the

folly of a per se rule:

- + + @ per se approach may be going too

far t owakd protecting the right at stake.

A Per se rule which provided that a suspect

could never waive a prior request for coun-

sel would imprison a suspect in his privileges.

Cf. Faretta v. California, 422 U.S.

806 (1975) (cannot force trial counsel on

- defendant who wishes to proceed without

counsel). This is not to say that con-

tinued interrogation or any coercion

causing the suspect to waive the request

need be condoned. Instead it merely is

an acknowledgement that in certain in-

stances, for various reasons, a person in

custody who has previously requested coun-

sel may knowingly and voluntarily decide

that he no longer wishes to be represented

by counsel.

The creation of a per se rule would

cause courts to lose touch with the pur-

pose and policies behind the Miranda

decision--a knowing and, free exercise of

constitutional rights.“*Adoption of a

per se rule would lead to a mechanical

, pl pre to the resolution of the parti-

cular cases we face.

16, hypothetical case might demonstrate

the folly of a per se rule. Consider the

case where a suspect requests counsel and

then is put in a cell. The suspect tells

a guard who ed Pegs to pass his cell that

he has changed his mind. He says that he

does not want a lawyer and would like to

confess. Certainly it serves no valid

policy behind Miranda to refuse to accept

the waiver. Indeed, it contravenes the

idea in Miranda--that an individual should

be able to freely exercise his rights.

Respondent urges this Court to let the view of these circuits

stand and eschew the per se rule suggested by petitioner.

In United States v. Monti, 557 F.2d 899 (lst Cir.

1977), the court found that a defendant, who had met with his

court-appointed attorney, knowingly and freely waived his right

to counsel at a non-custodial meeting with government agents.

The defendant had made derogatory comments to the agents about

his counsel which the court found “clearly establish[ed] his de-

sire to foregy his right to have counsel present at the meeting."

Id. at 904. It appears from the opinion that counsel did not

advise defendant to waive his right to an attorney.

While not specifically ruling on the existence of a per

se rule, the court in Monti concluded not all incriminating state-

ments made in the absence of counsel are suppressible. Id. at

904. The court elaborated this conélusion in a footnote:

If such were the rule, one who has counsel,

with or without counsel's knowledge or

instructions, could approach the authori-

ties alone, in an effort to "deal,' and |

then, when things went badly, escape the |

consequences of his voluntary act by re-

lying on the absence of counsel. We have

‘no reason whatever to believe that counsel

was in any manner aware of Monti's May 2,

1974, meeting in this case. The hypotheti-

cal, however, illustrates the wisdom of

avoiding a per se approach.

Id. at 904 n. 3 (emphasis supplied).

Respondent submits that a per se approach is neither

wise nor constitutionally mandated and that the opinion of the

court below should stand.

B.

Petitioner Effectively Withdrew His

Request For Counsel.

Respondent submits that the court below correctly

determined that petitioner knowingly and voluntarily withdrew

his request for counsel. See Johnson v. Zerbst, 304 U.S. 458,

464-5 (1938). The facts and circumstances of this case, as set

forth in the Illinois Appellate Court's opinion, People v. James,

82 Ill. App. 3d 551, 402 N.E.2d 936, 937-9 (1980) (Appendix A

at A2-A4), demonstrate that petitioner requested counsel but

later intelligently waived counsel's presence.

Petitioner was arrested at approximately 5:20 p.m. on

May 17, 1978. (C. 209) On the way to the police station, the

Miranda warnings were given to petitioner, and petitioner said

he wanted to talk. (C. 215,7) Petitioner also told the arres-

ting officer that "he would like to talk to an attorney." (C. 216).

Upon arriving at the station, petitioner was seated in an inter-

view room (C. 224, 232).

Shortly thereafter, Investigators William Hartshorn

and Larry Rollins entered the room (C. 238). Investigator

Hartshorn testified that, initially, petitioner was not questioned

about any crimes:

The only conversation that I had with Mr.

James prior to the formal interrogation

form being filled out was when I asked

him if he was injured in any way.

(C. 481) When the investigators went in the room, petitioner

requested the presence of Investigator Gary Miller and this offi-

cer was brought in. Then defendant was advised of his rights (¢. 240-7)

initialed a written waiver of rights form (C. 240-1, 318), and

was questioned for absictinately a half hour. (C. 318)

Respondent submits that this action on the part of

petitioner amounted to an intelligient and knowing waiver of

his request for counsel. There is no authority that prohibits

petitioner from voluntarily relinquishing a right or giving a

statement to law enforcement authorities after he has been ad-

vised of his constitution rights.

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Furthermore, repeating the Miranda warnings to peti-

tioner after he had requested counsel did not violate his

rights. "The fundamental import of the privilege while an in-

dividual is in custody is. . .whether he can be interrogated. . ."

Miranda, 384 U.S. at 478. Interrogation means "words or actions

on the part of police officers that they should have known were

reasonably likely to elicit an incriminating response."

Rhode Island v. Innis, U.S. , , 100 S.Ct. 1682,

1690, 64 L.Ed. 2d 297, 308 (1980) (emphasis in original).

Surely, a single repetition of Miranda warnings, after a request

aie counsel; to a suspect who had previously indicated he wanted

to talk, does not fit this definition of interrogation. Nor was

such admonishment on attempt to break down petitioner's resis-

tance or to elicit a confession.

Subsequent events support the lower court's finding

that petitioner's statements were voluntary and properly ad-

mitted. After the interview ended, petitioner was given supper.

(C. 318) Questioning resumed at 7:24 p.m. but terminated at

8:21 p.m. when petitioner was allowed another break. (C. 319)

At 8:55 p.m., petitioner telephoned his employer and advised

that he would not be reporting to work. (C. 323-4) He did not

ask his boss to contact a lawyer (C. 248, 324), and declined a

police offer to make another phone call. (C. 325) The ques-

tioning recommenced at 9:05 and lasted until 11:00 p.m. when

petitioner was visited by his mother and stepfather. After

speaking with his visitors in private for fifty minutes, peti-

tioner was taken to a cell for the night. (C. 325)

Another waiver form was initialed by petitioner at

11:06 a.m. on May 18. (C. 326-7) Each paragraph of the form

was read to petitioner, and he was asked if he had any questions

concerning his rights. Petitioner responded that he understood

the form and had no questions. (C. 328) He then was interviewed

for one hour and fifty minutes. (C. 329) After being served

lunch and conferring with his parole officer from 1:00 to 2:00 p.m.,

petitioner awaited the arrival of a polygraph examiner.

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A polygraph examination was administered that after-

noon following repetition of the Miranda warnings. (C. 330)

Afterwards, petitioner was questioned by Investigators Hartshorn

and Rollins from 4:15 to 4:25 p.m. and by Officers Robert LeConte

and Gene Woodard from 4:30 to 6:05 p.m. (C. 330-1) During

the latter interview, petitioner for the first time admitted

knowing the deceased and shooting him. (C. 376) Prior to this

interview, petitioner was thoroughly admonished of his rights

and initialed and signed a written waiver form (C. 350)

Petitioner was served dinner from 6:10 to 7:30 p.m.

and then was visited by his father for fifty minutes. (C. 331)

Another visitor, Carolyn Burris, met with petitioner beginning

at 8:30 p.m. (C. 332) A written confession was submitted by

defendant between 9:06 and 11:15 p.m., after another waiver

form had been signed. (C. 146, 360) According to petitioner's

Statement, he killed David Holler at the victim's insistence.

(C. 132-4) Following the confession, petitioner again was

visited by his mother. (C. 333) No further statements were

made by petitioner to the police.

It is undisputed that petitioner did not request coun-

sel while in custody at police headquarters. Nor did he tell

any of his visitors on May 17 and 18 that the police had pre-

vented him from obtaining an attorney.

Petitioner urges this Court to fashion guidelines for

determining whether an accused has withdrawn a request for coun-

sel. Respondent submits that the traditional standard, that

the State must show "an intentional relinquishment or abandon-

ment of a known right or privilege," Johnson v. Zerbst, 304 U.S.

458, 464 (1938), is appropriate for such a situation. See

Miranda, 384 U.S. at 475. An explicit statement of waiver is

not invariably necessary to support a finding that a request

for counsel has been abandoned. See North Carolina v. Butler,

441 U.S. 369 (1979). The conclusion that petitioner knowingly

and voluntarily withdrew his request for counsel was based on

the appellate court's consideration of "the particular facts

and circumstances surrounding that case, including the background,

ee ea

experience, and conduct of the accused," Johnson, 304 U.S. at

464, and need not be reviewed by this Court.

Il.

THIS COURT NEED NOT CONSIDER WHETHER

INTERVENING EVENTS CURE AN ALLEGED

FAILURE TO HONOR A REQUEST FOR COUNSEL.

Petitioner urges this Court to grant certiorari to

consider whether "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." Petitioner

at 22. Respondents submit that this question should not now be

considered by the Court. As demonstrated in respondent's argu-

ment I, supra, petitioner effectively retracted his request for

counsel. Furthermore, readmonishing petitioner of his Miranda

rights upon arrival at the police statien, after petitioner re-

quested counsel, in and of itself, does not constitute a

failure to honor the request. Police stations do not have to

provide a "station house lawyer" to advise a suspect. Miranda,

384 U.S. at 474. Petitioner's arguments that the repetition of

Miranda warnings coerced him into signing the waiver form and

making a statement are speculative and not based on evidence in

the record.

Petitioner in this case clearly changed his mind and

withdrew his request for counsel. No authority or principles

preclude him from doing this. See Faretta v. California, 422

U.S. 806 (1975) (right to counsel is personal to accused). As

his statement was not taken in violation of Miranda, this Court

need not review the appellate court's decision.

a p=.

CONCLUSION

< For all of the above reasons, respondent requests

that this Court deny the petition for writ of certiorari.

Respectfully submitted,

TYRONE C. FAHNER,

Attorney General

State of Illinois

MELBOURNE A. NOEL, JR.,

MARK L. ROTERT,

CAROLYN B. NOTKOFF,

Assistant Attorneys General

188 W. Randolph St., Suite 2200

Chicago, Illinois 60601

(312) 793-2570

COUNSEL FOR RESPONDENT.

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APPENDIX

APPENDIX A

936 Ill

82 Il.App.3d 551

37 Ill.Dec. 934

The PEOPLE of the State of Illinois,

Plaintiff-Appellee,

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; (3)

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.

402 NORTH EASTERN REPORTER, 2d SERIES

3. Homicide @ 166(3)

In murder case in which State contend.

ed that motive for defendant's conduct was

desire to develop close relationship with a

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 victim'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

-Al-

PEOPLE v. JAMES : Ill. 937

Cite as 402 N.E.24 936

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

@ then searched, handcuffed = placed in

¥ Carey's squad car. Carey u.. not question

‘> defendant other than to ask his name.

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“* Building in Danville, Officer Carey radioed

“headquarters to request that the sheriff and

4m investigator meet him. Defendant

asked Carey if he would be allowed to make

#° & phone call at the jail to which Carey

affirmatively. About a minute

defendant requested that Carey in-

him of his rights and Carey did so.

thereafter, defendant asked if he

a second phone call if necessary

said he could. After another

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to an attorney.”

i Carey told him he would be allowed to do

a. Carey 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. De-ndant

then asked how long he would cf 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

.

es |,

938 Il. 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 L-

Conte and Gene Woodward regarding che

shooting death of David Holler whizh oc-

curred on May 8, 1978. Prior ts 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 questio.s. 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 parvie 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 abou 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 until €:05 p. m. and during this session

the defendant, for the first time, admitted

knewing—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 4 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 Ill. 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

Sas

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 Holier 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 ajier 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

another 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.

_' t Defendant does not argue that this case

.

o

.

if

presents an issue as to the voluntariness of

his confession but contends that the police

violated his Miranda rights by refusing his

ms

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 corsidered 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 Ill.App.3d 671, 21 Ill.Dee.

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 1N.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 Ill.

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 v. 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 v.

Washington (1977), 68 I11.2d 186, 11 Ill.Dec.

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 I.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

402 NORTH EASTERN REPORTER, 2d SERIES

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 (1978), 61 I1l.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 sufficiently dissipat-

ed so that the defendant's confessiom 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 ts six times a foar differ-

ent Te wiles of Soe rahe ee,

“The Time Of his arrest at approximately 5 p.

m. on May 17 and his confessiv 1 which was

obtained sometime after 4:30 p. m. on May

18 While repeated admonitions alone will

not always break the causal connection be-

PEOPLE yv. JAMES Ml.

941

Cite as 402 N.E.24 936

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 /1-

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-

: dined 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.2q 412.)

We also note that unlike the defendant who

was a borderline retardate in White, this

defendant was 26 years old, had a high

.,hool 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.

*... Furthermore, an examination of the cir-

;,, Samstances surrounding defendant's re-

". quest for counsel shows that it was made at

os time when defendant was expressing con-

fi c

SB

F

i

z

3

i

&

4, defendant's assertions, we believe that the

clearly shows that defendant know-

and voluntarily withdrew his request

counsel. Additionally, we conclude that

effect of the procedural violation of

i

‘

Le

y ba

£

if

Fi

i

;

i

ip

a

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 Burris. The de-

fendant had visited her home 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-

Debbie Jones, a classmate of Holler’s at a

locai 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

942 IIL.

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-

402 NORTH EASTERN REPORTER, 2d SERIES

stances may be put into evidence which

tend to make the proposition at issue either

more or less probable. (People v. Galloway

(1963), 28 I11.2d 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 Il1.2d 459, 34 Ill. Dee.

127, 397 N.E.2d 799.

Affirmed.

CRAVEN and WEBBER, JJ., concur.