Petition — Illinois v. Smith

82-1259

No. 0 a Court, U.S.

1 i D

In THE JAN 22 1983

Supreme Couri of the United States

Octoser TERM, 1982

PEOPLE OF THE STATE OF ILLINOIS,

Petitioner,

DAN W. SMITH,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO

THE SUPREME COURT OF ILLINOIS

New F. Hartican

Attorney General, State of Illinois

MicHAEL B. WEINSTEIN*

Assistant Attorney General

188 West Randolph Street, Suite 2200

Chicago, Illinois 60601

(312) 793-2570

Counsel for Petitioner

Puytus J. Perko

Wim L. Browers

State’s Attorneys Appellate

Service Commission

35 Fountain Square Plaza

Elgin, IIlinois 60120

Dennis SCHUMACHER

State’s Attorney

Ogle County Courthouse

Oregon, Illinois 61061

Of Counsel

* Counsel of Record

Printed by Authority of the State of Illinois (P.O. 31497—55—1-22-83)

i

QUESTION PRESENTED FOR REVIEW

Whether a suspect’s waiver of his Fifth Amendment

right to counsel is rendered constitutionally invalid solely

because the police did not inform him that counsel had

been present at the jail and had sought to consult with

him prior to interrogation.

ii

TABLE OF CONTENTS

QUESTION PRESENTED FOR REVIEW . . .

eee

TABLE OF AUTHORTIES . . ... . . . . . . .

%

— — 9

CONSTITUTIONAL PROVISIONS

INVOLVED

——— E E V V EERE ED

REASON FOR GRANTING THE WRIT:

A SUSPECT’S WAIVER OF HIS FIFTH

AMENDMENT RIGHT TO COUNSEL IS

NOT RENDERED CONSTITUTIONALLY

INVALID SOLELY BECAUSE THE PO-

LICE DID

NOT INFORM HIM THAT

COUNSEL HAD BEEN PRESENT AT

THE JAIL AND HAD SOUGHT TO CON-

SULT WITH HIM PRIOR TO INTERRO-

GATION ....

CONCLUSION

APPENDIX A:

APPENDIX B:

APPENDIX C:

APPENDIX D:

—— e ———D—D—D—t;ͥͤ⁰ —ÆR—E—õ—d ä 6ẽ 2232235

People v. Smith, Docket No. 54575

(Ill. Sup. Ct., September 17, 1982) .

Order of the Illinois Supreme

Court Denying Rehearing, dated

November 24, 1982 . . .

Order Recalling Mandate and

Notice Attendant to January 7,

1983 Modification of Opinion ......

People v. Smith, 91 Ill. App

438. 414 N. E. 2d 1281 (2 518.

1980) — dastcaeleeannannbiion

13

1b

le

Id

iii

TABLE OF AUTHORITIES

CASEs: PAGE(S)

Brewer v. Williams, 430 U.S. 387 (1977) . . 22

Brown v. Illinois, 442 U.S. 590 (1975) . .. 17

Commonwealth v. Hilliard, 471 Pa. 318, 370 A. 2d

TT 14

Commonwealth v. McKenna, 355 Mass. 313, 244

t ——— 14, 15

Dunaway v. New York, 442 U.S. 200 (1979) ........ 17

Edwards v. Arizona, 451 U.S. 477 (1981) | ......... 17

Escobedo v. Illinois, 378 U.S. 478 (1964) . . 16. 17

Estelle v. Smith, 451 U.S. 454 (1981) . 20

Johnson v. Zerbst, 304 U.S. 458 (1938) . .. 20

Kirby v. Illinois, 406 U.S. 682 (1972) . . 17

Mass ia v. United States, 377 U.S. 201 (1964) 22

Miranda v. Arizona, 384 U.S. 436 (1966) ............. passim

North Carolina v. Butler, 441 U.S. 369 (1979) ... 19, 20

Oregon v. Hass, 420 U.S. 714 (1975) . .. 20

People v. Aldridge, 79 Ill. 2d 87, 402 N.E.2d 176

%% ͤAA— AAA 22

People v. Anthony, 38 III. App. 3d 427, 347 N.E.2d

e 21

People v. Smith, 91 III. App. 3d 488, 414 N. E. 2d

. 2. 13, 8

State v. Burbine, 451 A. 2d 22 (R. I. 1982) ............ 21

State v. Haynes, 288 Or. 59, 602 P. 2d 272 (1979),

cert. denied, 446 U.S. 945 (1980) . . . 14, 15

State v. Jones, 19 Wash. App. 850, 578 P. 2d 71

TTTTTVTTTTTTVTTVVVTTTT——— 14

State v. Matthews, 408 S0. 2d 1274 (La. 1982) 14, 15

United States v. Satterfield, 558 F.2d 655 (2nd

%% 21

United States v. Springer, 460 F.2d 1344 (7th Cir.

1972) .. CTT 21

iv

CONSTITUTIONAL PROVISIONS: PAGE(S)

United States Constitution, Amendment V . passim

United States Constitution, Amendment V1 ..... passim

United States Constitution, Amendment XIV .... 4. 13

In Tue

Supreme Court of the United States

Ocroser Term, 1982

PEOPLE OF THE STATE OF ILLINOIS,

Petitioner,

DAN W. SMITH,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO

THE SUPREME COURT OF ILLINOIS

OPINIONS BELOW

The Supreme Court of Illinois issued its opinion in

this case on September 17, 1982. A slight modification

of that opinion was subsequently made on November 24,

1982 upon denial of a petition for rehearing. Following

recall of its mandate after petitioner’s motion express-

ing intent to file the instant Petition, the Court, sua

sponte, again modified its opinion on January 7, 1983.

The (twice modified) opinion is as yet unreported. The

Court held that the respondent’s incriminating state-

ments, which were admitted at his trial for murder and

armed robbery, were elicited during interrogation con-

*

ducted in violation of the respondent's Fifth Amend-

ment right to counsel. The Court found that the re-

spondent did not knowingly waive his Fifth Amendment

right to counsel where the evidence did not show that,

after refusing counsel access to the respondent, police

informed respondent before interrogation almost twenty-

four hours later that counsel had been present and

sought to consult with him. The Court accordingly re-

versed the respondent’s convictions and remanded the

case for a new trial. A copy of the Illinois Supreme

Court’s opinion is included as Appendix A to this Peti-

tion.! The order of the Court denying rehearing is in-

cluded as Appendix B. The order recalling the mandate

and the notice attendant to the January 7, 1983 modifica-

tion of the opinion are included as Appendix C.

The Illinois Appellate Court, Second District had pre-

viously issued an opinion affirming the respondent’s

convictions. People v. Smith, 91 III. App. 3d 438, 414

N.E.2d 1281 (2d Dist. 1980). That court found that the

interference with counsel’s access to the respondent con-

stituted a violation of the respondent’s Sixth Amend-

ment right to counsel but that various intervening

circumstances between the interference and interroga-

tion of the respondent dissipated any taint of illegality

in such interference. A copy of the Appellate Court’s

opinion is included as Appendix D to this Petition.

The January 7, 1983 modification was the addition of a

paragraph at page 8 of the opinion, beginning with the “X”

placed thereon by the court. See Appendix A at 8a.

883

JURISDICTION

The opinion of the Illinois Supreme Court reversing

the judgments of the Appellate and Circuit Courts was

rendered on September 17, 1982. The Illinois Supreme

Court denied a timely petition for rehearing, but slightly

modified its opinion, on November 24, 1982. This Peti-

tion is filed within sixty days of that order. Although

since that order, the Illinois Supreme Court on January

7, 1983, again modified its opinion, petitioner does not

seek to rely on such modification to extend the time for

filing the instant Petition. This Court’s jurisdiction is

invoked under 28 U.S.C. §1257(3), since in the proceed-

ings in the state courts of Illinois the respondent has

asserted an alleged violation of his rights arising under

the Constitution of the United States.

CONSTITUTIONAL PROVISIONS INVOLVED

United States Constitution, Amendment V provides that:

No person shall be held to answer for a capital, or

otherwise infamous crime, unless on a presentment

or indictment of a Grand Jury, except in cases aris-

ing in the land or naval forces, or in the Militia,

when in actual service in time of War or public

danger; nor shall any person be subject for the

same offense to be twice put in jeopardy of life or

limb; nor shall be compelled in any criminal case to

be a witness against himself nor be deprived of life,

liberty, or property, without due process of law; nor

shall private property be taken for public use, with-

out just compensation.

ae ae

United States Constitution, Amendment VI provides that:

In all criminal prosecutions, the accused shall enjoy

the right to a speedy and public trial, by an impar-

tial jury of the State and district wherein the crime

shall have been committed, which district shall

have been previously ascertained by law, and to be

informed of the nature and cause of the accusation;

to be confronted with the witnesses against him; to

have compulsory process for obtaining witnesses in

his favor, and to have the Assistance of Counsel for

his defense.

United States Constitution, Amendment XIV provides,

in pertinent part, that:

Section 1. All persons born or naturalized in the

United States, and subject to the jurisdiction there-

of, are citizens of the United States and of the State

wherein they reside. No State shall make or enforce

any law which shall abridge the privileges or im-

munities of the 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 jurisdiction the equal protec-

tion of the laws.

—

STATEMENT OF THE CASE

The respondent, Dan W. Smith, was convieted of

murder and armed robbery after a jury trial in the Cir-

cuit Court of Ogle County, Illinois and subsequently was

sentenced to life imprisonment for the murder and fifty

years concurrent imprisonment for the armed robbery.

Respondent was arrested on September 1, 1978 and

gave incriminating statements on September 3, 4 and 6,

1978. Prior to trial respondent filed a motion to sup-

press the statements alleging that they were elicited in

violation of his rights under, inter alia, the Fifth, Sixth

and Fourteenth Amendments to the United States Con-

stitution. Two of the statements, those made on Septem-

ber 3 and 4, were deemed aumissible by the Circuit

Court after a suppression hearing involving the follow-

ing evidence and findings.

The respondent and Mary Smith’? were arrested in

Winnebago County, Illinois, pursuant to Ogle County

arrest warrants, shortly before midnight on September

1, 1978 and were taken to the Winnebago County Sher-

iff's Office. Soon after midnight, now September 2,

Ogle County police advised respondent of his Miranda

rights and attempted to question him but ceased such

attempt after ten minutes due to respondent’s drowsy,

incoherent condition.

Later the same morning, respondent and Mary Smith

met with Attorney Joseph Spiezer. According to the tes-

* The case inst Mary Smith was severed from that

against . ent. Mary testified for the State at respond-

— 2 z= in return for her — awry | the prosecution

the — 1 —.— 2 er and allow her

to A Nad fo drop. to armed robbe

*

timony of Mary, Spiezer agreed to represent the pair,

although the trial court found “no evidence as to what

arrangements, if any, were made as a result of that con-

versation.” Still later that morning respondent and Ms.

Smith appeared in the Circuit Court of Winnebago

County. The presiding judge from that hearing later

testified that at such time respondent appeared normal,

gave responsive answers and was advised of his rights

including the right to the presence of counsel at ques-

tioning. The trial court found that Attorney Spiezer had

not been present at the Winnebago County hearing.

After the Winnebago hearing respondent and Ms. Smith

were transported to the Ogle County jail.

The events of 3:00 P.M. on September 2, 1978 were in

dispute at the suppression hearing. Carol Ellerby, a

partner of Attorney Spiezer, testified that on Spiezer's

instructions she went to the Ogle County jail to visit

both the respondent and Mary Smith. While Ellerby

was able to see Ms. Smith, the jailer, whom she thought

was John Willard, told her that she could not see the

respondent because he was going through heroin with-

drawal and was shaking so hard that he could not stay

on the bed. Ellerby testified that she wrote on one of her

business cards that she was Mr. Spiezer’s partner and

that respondent should make no statements unless one

of his attorneys was present. Ellerby further stated that

she gave the card to Willard to give to respondent and

that Willard read the card and agreed to transmit it to

respondent.

Respondent testified that he received Ellerby's card

from Willard on September 2, the same day. Respond-

ent also testified that he continuously asked Willard for,

but was refused, permission to vall his attorney, and

that he began going through heroin withdrawal on

that same day.

*

John Willard testified that he was on duty as a jailer

at 3:00 P.M. on September 2 and that he did not

remember Attorney Ellerby asking to see respondent.

Willard denied telling Ellerby that respondent was

going through heroin withdrawal; denied that the re-

spondent appeared to be going through heroin with-

drawal (as did other witnesses) with regard to both

September 2 and 3; and stated that he never refused an

attorney access to a client.

The trial court’s findings on these points were that

Attorney Spiezer’s law firm represented respondent at

3:00 P.M. on September 2; that Attorney Ellerby's ver-

sion of the conversation with John Willard was correct

but that Willard did not know the content of the mes-

sage Ellerby wrote on her business card; that respond-

ent never requested counsel (either of Willard or of

anyone else on the days following on which he made

incriminating statements); and that respondent was not

suffering the effects of heroin withdrawal either on Sat-

urday, September 2, 1978 or during his statements to

police on the days following September 2.

At approximately 3:30 P.M. the same day, Attorney

Ellerby returned to the jail, again on Mr. Spiezer's

instructions, this time only to see Mary Smith because

of rumors that Mary had given the police a statement.

Ellerby testified that she was told that she could not see

Mary because Mary had retained another attorney.

Ellerby explained that the sheriff told her that he

would have Mary write down that she had retained other

counsel but that she (Ellerby) indicated to the sheriff that

she wanted to hear such information personally from

Mary. Ellerby and Robert Thorsen, another partner in

the law firm, then went to the home of Judge John

Moore to seek permission to see Mary Smith personally

to determine whether Mary had retained other counsel.

Ellerby testified that at Judge Moore’s home the subject

of the firm’s representation of respondent was not men-

tioned.

Judge Moore, however, testified that Mr. Thorsen had

“said that Mr. Spiezer did not represent [respondent]

because [respondent] did not have any money.” In its

findings the trial court found Judge Moore's version of

the conversation to have been correct.

Thereafter, at about 4:30 P.M., Ellerby and Thorsen

returned to the jail where, in the presence of jail person-

nel including Sheriff Brooks and Detective Messer, they

told Mary that their firm did not represent respondent

and ascertained from Mary that, in fact, she had re-

tained other counsel. The trial court found that Mr.

Spiezer’s law firm was not representing the respondent

from at least that point in time until after respondent's

incriminating statements on September 3 and 4 and

that jail personnel were aware of that fact.

On the following day, September 3, police for the first

time since the very early morning hours of September 2

sought to question respondent. At 2:15 P.M., Detective

Messer began advising respondent of his Miranda

rights. Although respondent twice interrupted, insisting

that he knew his rights, Messer completed his admoni-

tions. Respondent acknowledged understanding of his

rights, agreed to make a statement and suggested tap-

ing the statement. At respondent’s request he was al-

lowed a ten minute conference with Mary Smith, after

which he was again advised (on the tape recording) of

his Miranda rights and he again acknowledged under-

standing of those rights. Respondent then gave a state-

ment. In its findings the trial court indicated that in

response to a single question respondent, without further

questioning, proceeded to narrate a long, complete his-

3

tory of the offense. The trial court also found, from evi-

dence that respondent had asked Detective Messer to

get Mary out on bond (which request Messer refused),

that respondent's motivation in making the admissions

may have been to help Mary.

On the following day, September 4, 1978, at 10:00

A.M., Sheriff Brooks met with the respondent. Brooks

advised respondent of his Miranda rights even though

respondent stated that he understood his rights. At

respondent’s request Mary Smith was brought into

the room. Brooks then again advised respondent of his

Miranda rights and respondent, once again, acknowl-

edged understanding of those rights. Respondent and

Mary Smith read over each page of a statement typed

from respondent's taped statement to Detective Messer

on September 3. Respondent made some corrections and

additions and signed each page and Mary Smith and

Sheriff Brooks signed as witnesses. After going over the

statement respondent asked Brooks for another state-

ment form and added another page in his own hand-

writing. The trial court found that respondent's writing

of such page was not prompted by any interrogation by

Brooks.

On September 5, 1978, an amended Information

charging both respondent and Mary Smith with murder

and armed robbery was filed in the Circuit Court of

Ogle County. On that same day, Mr. Spiezer entered his

appearance as counsel for the respondent. The next day,

September 6, at his own request, respondent met with

Ogle County State’s Attorney Peter Woods.’ Woods ad-

vised respondent of his Miranda rights and specifically

Due to the anticipated testimony of State's Attorney Woods

at the hearing on respondent's motion to suppress, special

prosecutors earlier had been appointed to prosecute this case.

=—

asked respondent if he was willing to speak without Mr.

Spiezer present. Respondent agreed that he was willing

to speak. Respondent then gave a statement concerning

the murder. On cross-examination, Woods indicated that

he had told respondent that he would seek the death

penalty for respondent but admitted that he told re-

spondent that he thought Judge Moore was a lenient

judge and discussed another case, indicating that re-

spondent could use the sentences received by the defend-

ants in that case as a gauge.

At the argument on respondent's motion to suppress,

Mr. Spiezer urged, in relevant part, that respondent's

incriminating statements were the fruit of Jailer Wil-

lard’s wrongful intrusion into the attorney-client rela-

tionship. Under questioning by the court, Mr. Spiezer

claimed that the passage of time could not cure such

interference, that the taint from the denial of access to

respondent would carry on forever, and that it was ir-

relevant to the admissibility of respondent's statements

that the Spiezer law firm may have unilaterally termi-

nated its representation of respondent subsequent to the

intrusion by Jailer Willard but before the questioning of

respondent began.

The trial court denied respondent's motion to suppress

his statements of September 3 and 4. The court found

that respondent “did knowingly waive and intelligently

and voluntarily waive his Miranda rights,” with regard

to both statements and that the statements were other-

wise voluntary, as well. The court also found that such

statements were not taken in violation of respondent's

Sixth Amendment right to counsel, finding that re-

spondent waived that right “almost on his own initia-

tive.”

The trial court suppressed respondent's September 6

statement to State’s Attorney Woods on the sole ground

ito

that respondent may have interpreted Woods’ comments

regarding respondent's use of another case as a gauge

as an implied promise of leniency. The court found no

Miranda problem with such statement and specifically

indicated as follows with regard to respondent's right to

counsel:

And as far as counsel is concerned, the Defendant

was asked if Mr. Spiezer did not represent him and

do you want him here. And the defendant indi-

cated, “No.” Now I bring that up to show at least

here it is very clear there was a waiver of right to

counsel present. And it indicates also, even though

it is after the event, it indicates that the Defendant

was not apparently willing or did not desire to rely

on counsel at any point in this proceeding, up to

and including the statement to Woods.

The case proceeded to jury trial at which time re-

spondent's September 3 and 4 statements were admit-

ted. Respondent was found guilty of both murder and

armed robbery and subsequently was sentenced to life

imprisonment for the former and fifty years concurrent

imprisonment for the latter.

Respondent appealed his convictions to the Illinois

Appellate Court, Second District. There he claimed that

Jailer Willard's September 2, 1978 unexplained action

of denying Attorney Ellerby access to him constituted a

violation of his Sixth Amendment right to counsel and

that his custodial statements of September 3 and 4, 1978

should have been suppressed as the direct fruits of such

violation. The Appellate Court affirmed respondent's

convictions holding that although Willard’s action con-

stituted a wrongful interference with the attorney-client

relationship, respondent’s subsequent statements could

not be deemed the illegal fruits of Willard's misconduct

in light of various intervening circumstances between

the misconduct and the initial questioning of the re-

=~

spondent by police. Among such circumstances were:

respondent’s receipt of Attorney Ellerby’s business card

from Willard on the same day as the interference; the

passage of almost 24 hours from the interference to the

time when respondent was first questioned and that

before questioning began, respondent was given Miranda

warnings; respondent acknowledged understanding of

his rights; consented to give a statement; was then al-

lowed a conference with Mary Smith; was given renewed

Miranda warnings; again acknowledged understanding

of his rights; and, finally, again agreed to make a state-

ment. People v. Smith, 91 III. App.3d 438, 414 N.E.2d

1281 (2nd Dist. 1980).

Respondent then sought, and was granted, leave to

appeal to the Illinois Supreme Court. In that court re-

spondent again challenged the admission at trial of his

September 3 and 4, 1978 statements only on Sixth

Amendment grounds claiming that the intervening cir-

cumstances relied upon by the Appellate Court were, as

a matter of law, insufficient to attenuate the taint of

Jailer Willard’s interference with the attorney-client

relationship. In its opinion reversing respondent’s con-

victions, the Illinois Supreme Court expressly declined

to address the case as one involving respondent’s Sixth

Amendment right to counsel, the manner in which the

case had been briefed and argued. Rather, the court,

sua sponte, treated the case as one involving respondent’s

right to counsel under the Fifth Amendment. In this

regard the court adopted the following rule:

[W]hen police, prior to or during custodial inter-

rogation, refuse an attorney appointed or retained

to assist a suspect access to the suspect, there can

be no knowing waiver of the right to counsel if the

suspect has not been informed that the attorney

was present and seeking to consult with him.

Slip Op. at 9. (Appendix A at Qa)

=

The court found that no evidence—including respond-

ent’s receipt from the jailer of Ellerby’s business card—

showed that the respondent, before questioning, was

informed that Attorney Ellerby had been present and

sought to consult with him. Accordingly, the court

deemed respondent's waiver of his Fifth Amendment

right to counsel invalid and held that respondent's con-

fessions were improperly admitted at trial. Petitioner’s

petition for rehearing was denied with a slight modifi-

cation of the opinion on November 24, 1982. On January

7, 1983, the Illinois Supreme Court, sua sponte, further

modified its opinion.

REASON FOR GRANTING THE WRIT

A SUSPECT’S WAIVER OF HIS FIFTH AMEND-

MENT RIGHT TO COUNSEL IS NOT RENDERED

CONSTITUTIONALLY INVALID SOLELY BECAUSE

THE POLICE DID NOT INFORM HIM THAT COUN-

SEL HAD BEEN PRESENT AT THE JAIL AND HAD

SOUGHT TO CONSULT WITH HIM PRIOR TO INTER-

ROGATION.

This Court should grant certiorari to determine

whether warnings over and above those required by

Miranda v. Arizona, 384 U.S. 436 (1966), are a constitu-

tional prerequisite to a suspect’s waiver of his Fifth

Amendment right to counsel, as applied to State courts

via the Fourteenth Amendment, whenever, prior to

questioning, police have denied a retained or appointed

attorney access to the suspect. The Illinois Supreme

Court held that in this situation a suspect’s knowing

waiver of such right is constitutionally precluded unless

the suspect has been informed that counsel was present

and seeking to consult with him. Since no evidence

21.

showed that respondent had been so informed‘ the court

reversed his convictions for murder and armed robbery.

Such per se rule is not mandated by Miranda and is

tantamount to an improper holding that a third party

may assert the privilege against self-incrimination for

the actual holder of the privilege.

As noted by the Illinois Supreme Court (Appendix A

at 6a-8a) several states have adopted prophylactic rules

requiring more than Miranda warnings and waiver of

those rights to render admissible a suspect’s statement

following police frustration of an attorney’s attempt to

see the suspect. State v. Haynes, 288 Or. 59, 602 P.2d

272 (1979), cert. denied, 446 U.S. 945 (1980); State v.

Matthews, 408 So.2d 1274 (La. 1982); Commonwealth v.

McKenna, 355 Mass. 313, 244 N.E.2d 560 (1969); Com-

monwealth v. Hilliard, 471 Pa. 318, 370 A.2d 322 (1977);

State v. Jones, 19 Wash.App. 850, 578 P.2d 71 (1978).

The instant case provides a unique context in which to

assess whether such rules are constitutionally mandated.

This case is readily distinguishable from all of the

foregoing cases in which such rules have been adopted.

In those cases, counsel were rebuffed either during

interrogation or soon before interrogation, both of which

Application of the rule to respondent’s case does not even

appear sustainable. Respondent received from the jailer coun-

sel’s calling card after the interference but before interroga-

tion and, virtually by definition, the card conveyed the same

information required by the rule. Even accepting the court's

finding to the contrary, respondent's receipt of the card from

the jailer suggests that the jailer may have complied with the

rule; that no evidence to such effect was adduced is readily

understandable since the rule did not exist until the decision

of the Illinois Supreme Court and little reason existed for

questions to be asked on such point. In light of this back-

ground. the finding of the court below that “(T]he defendant

was not informed that his attorney was available. (Ap-

pendix A at 9a) appears to be based on pure speculation.

*

situations suggest that the interference with counsel's

access to the client was for the purpose of holding a

defendant incommunicado until a statement could be

obtained from him.

Here, however, respondent was not questioned until

twenty-one hours after counsel was turned away and in

the interim, counsel, for reasons unrelated to the inter-

ference, announced to police that the firm did not

represent respondent. Additionally, respondent received

from the jailer counsel’s business card on which was

written a warning not to speak to police in the absence

of counsel. Respondent was even allowed to meet with

his co-defendant prior to interrogation. Further, re-

spondnet never asked for counsel or took actions which

could be interpreted as manifesting an intent to act

through counsel. See, e.g., Commonwealth v. McKenna.

Additionally, unlike State v. Haynes, upon which the

Illinois Supreme Court placed primary reliance, State v.

Matthews, and Commonwealth v. Hilliard, the decision

below clearly purports to be an interpretation of the

federal Constitution and presents a well-defined issue—

whether the Fifth Amendment mandates such a prophy-

lactic rule. That this is so is demonstrated by the para-

graph at page 8 of the opinion, added by the Illinois

Supreme Court during the sixty day period for filing of

the instant petition. See Appendix A at 8a. The court

expressly declined to review the case as one arising

under the Sixth Amendment, though both parties had

briefed and argued the case only in that manner and

though both the trial and appellate courts had so de-

cided the issue. The Fifth Amendment does not man-

date such a rule.

In Miranda, this Court held that as a prerequisite to

custodial interrogation a suspect must be warned, inter

alia, of his right to consult with counsel and to have

==

counsel with him during questioning. This Court found

that since the right to counsel exists at questioning and

since a suspect cannot waive his Fifth Amendment priv-

ilege without a knowing waiver of such right the warn-

ing would give “ascertainable assurance that the ac-

cused was aware of this right.” 384 U.S. at 472.

If such warning was sufficient to provide “ascertain-

able assurance” that a suspect was aware of his right to

counsel in Miranda there simply is no reason that the

warning is insufficient to provide the same assurance

where counsel has been frustrated in an attempt to see

the suspect. Surely this Court must have contemplated

this situation when it decided Miranda. In Miranda,

this Court specifically reaffirmed Escobedo v. Illinois,

378 U.S. 478 (1964) which, itself, involved the frustra-

tion of an attorney’s attempt to see his incarcerated

client. Against that background Miranda should be

deemed sufficient, at least in terms of the warnings

necessary to make a suspect aware of his rights, to meet

all situations.

The Illinois Supreme Court’s recent modification of its

opinion (Appendix A at 8a) suggesting that support

for a contrary position is found by reading Escobedo,

together with footnote 35 of Miranda and subsequent

case-law interpreting Escobedo, is simply untenable. In

footnote 35 of Miranda (384 U.S. at 465-66, n. 35), this

Court, in discussing Escobedo, noted that the action of

police in preventing the attorney from consulting with

his client constituted a violation of the Sixth Amendment

right to assistance of counsel and excluded any statement

obtained in its wake.“

5 Whether * — statements were elicited in the wake

of, or, stated alternatively, as the fruits of police interference

with counsel’s access to respondent was precisely the issue

22 to the court below, which issue that court refused to

ecide.

=

While it is true that this Court subsequently has

found that the “prime purpose” of Escobedo was to vin-

dicate that defendant’s Fifth Amendment rights (Kirby

. Illinois, 406 U.S. 682, 689 (1972)), that does not mean

that the aspect of Escobedo referred to in footnote 35 of

Miranda was addressed to Fifth, as opposed to Sixth,

Amendment concerns. The Fifth Amendment concerns

of Escobedo clearly were only those brought about by

Escobedo’s desire to not incriminate himself, as mani-

fested by his request for counsel, not those of counsel try-

ing to see Escobedo. The Illinois Supreme Court, in

essence, has held that the latter situation, a Sixth

Amendment violation, necessarily results in the former,

a Fifth Amendment violation. As discussed subsequent-

ly in this Petition, however, such holding is tantamount

to an improper holding that a third party may assert

the privilege against self-incrimination for the actual

holder of the privilege.

It is acknowledged that since the decision in Miranda

there have been cases in which this Court has held that

more than mere Miranda warnings may be necessary in

given situations. Brown v. Illinois, 422 U.S. 590 (1975);

Dunaway v. New York, 442 U.S. 200 (1979); Edwards v.

Arizona, 451 U.S. 477 (1981). But in none of those cases

was the issue limited to whether a suspect was aware of

his Fifth Amendment right to counsel, as in this case.

The apparent rationale for the per se rule adopted

below is that by telling a suspect that his attorney had

been present and sought to consult with him it will

inspire the suspect’s confidence in his dealings with

police and thereby protect his privilege not to incrimi-

nate himself. Such a theory, however, presupposes that

a suspect would respond to such information and that he

would express some interest in seeing counsel. Even

assuming that the suspect would do so, and further

atin

assuming that the suspect thereafter would meet with

counsel and then be informed that he should not talk to

police, it cannot necessarily be said that such process

would have made it more unlikely that the suspect

would respond to police interrogation than would have

been the case had the suspect received Miranda warn-

ings alone.

The instant case, perhaps better than any hypotheti-

cal, well demonstrates this point. Respondent had met

with Attorney Spiezer on the morning following his

arrest and thus, at a minimum, apparently knew that

he had counsel. Even if it is assumed that Spiezer did

not tell respondent of his right to have Spiezer present

at questioning respondent must have deduced that he

had such a right when several hours later, at his initial

arraignment, he was admonished by the presiding judge

that he was entitled to have counsel present at question-

ing. Nevertheless, despite respondent’s testimony to the

contrary, the trial court found that respondent never

thereafter during the period in question sought Mr.

Spiezer’s services.

Two other trial court findings regarding respondent’s

initial admissions to police are noteworthy in this re-

gard. The court found that the testimony suggested that

respondent's initial statements may have been motivated

by his hope of having his co-defendant released on bond.

The court also found, based on respondent’s outbursts

and “sort’ve fencing operation with the prosecutor” at

the suppression hearing, that respondent was strong-

willed, aggressive and “not to be pushed around easily

or lulled into doing things... on an easy basis.” Against

this background, it appears that warnings above and

beyond those required by Miranda, as held constitution-

ally mandated by the Illinois Supreme Court, would

have accomplished nothing in terms of protecting re-

spondent’s Fifth Amendment privilege.

—19—

That the added warnings would not necessarily have

protected respondent's Fifth Amendment privilege is

perhaps best demonstrated by consideration of the cir-

cumstances of respondent’s September 6th confession to

the State’s Attorney, which confession was suppressed

on an unrelated basis. On September 5th, an amended

Information had been filed and respondent appeared in

court represented again by Mr. Spiezer. Yet the follow-

ing morning respondent, himself, initiated a meeting

with the State’s Attorney at which meeting respondent

made further incriminating statements. At the begin-

ning of the meeting, the State’s Attorney specifically

asked respondent whether he wished to speak in the

absence of Mr. Spiezer and respondent indicated that he

did. While admittedly after the fact of respondent's first

two statements to police, such actions by respondent

were indicative of respondent's entire course of dealings

with authorities and demonstrated a continuing intent

to act without counsel.

However, even assuming that a prophylactic rule such

as that adopted below might protect a theoretical sus-

pect’s Fifth Amendment privilege such fact does not

mean that the rule is constitutionally mandated. A bar

on the admissibility of confessions elicited during custo-

dial interrogation certainly would protect a suspect's

Fifth Amendment privilege yet in Miranda this Court

did not adopt such a rule. A requirement that a sus-

pect’s waiver of his Fifth Amendment right to counsel

be expressly made no doubt would have protected fur-

ther the defendant's privilege against self-incrimination

in North Carolina v. Butler, 441 U.S. 369 (1979). Never-

theless, this Court rejected such a per se rule, finding

that:

[E]ven when a right so fundamental as that to

counsel at trial is involved, the question of waiver

must be determined on “the particular facts and

—20—

circumstances surrrounding that case, including

the background, experience and conduct of the

accused.” Johnson . Zerbst, 304 U.S. 458, 464, 58

S.Ct. 1019, 1028, 82 L.Ed.2d 1461.

441 U.S. at 374-375.

Since the instant case presents essentially the identi-

cal issue as that presented in North Carolina v. Butler,

—whether a suspect knowingly waived his Fifth Amend-

ment right to counsel—the Illinois Supreme Court's

holding finding constitutionally mandated a standard

more stringent than that deemed applicable in that case

cannot rationally stand. Oregon v. Hass, 420 U.S. 714

(1975).

The problem with the rule adopted below is that it

tends to misallocate the privilege actually at stake dur-

ing custodial interrogation. Although the Fifth Amend-

ment right to counsel recognized in Miranda is de-

scribed as a “right to counsel” and often is discussed in

a manner like the right to counsel arising under the

Sixth Amendment, the two rights are not really the

same. The Fifth Amendment right to counsel is a

“limited right” accorded a suspect in order to protect

his Fifth Amendment privilege against self-incrimina-

tion. See Estelle v. Smith, 451 U.S. 454, 470, n. 14 (1981).

When, before or during custodial interrogation, a suspect

has requested counsel or failed to manifest an intent to

waive counsel what he really has done is invoked his

Fifth Amendment privilege against self-incrimination.

Rules, such as that adopted below, which bar other-

wise valid waivers of the Fifth Amendment right to

counsel as a result of the fortuitous circumstance that

counsel attempted to visit the suspect essentially allow a

third party, counsel, to invoke the suspect’s Fifth

Amendment privilege for the suspect. Nothing in Mir-

anda suggests that such was the intent of this Court in

*

delineating the Fifth Amendment right to counsel and.

indeed, this Court's reference to the individual's right

to choose between silence and speech” (384 U.S. at 469)

militates against such a conclusion.

In the recent case of State v. Burbine, 451 A.2d 22

(R.I. 1982), the Rhode Island Supreme Court rejected a

defendant's proposal that it adopt such a prophylactic

rule out of this very concern, finding that Miranda

placed “the assertion of the right to remain silent and

the right to counsel upon the accused, and not upon

benign third parties, whether or not they happen to be

attorneys.” 451 A.2d at 28. The court aptly noted that

the adoption of a rule which allows a third party to

assert a suspect’s Fifth Amendment privilege for him

could ultimately result in the inadmissibility, on Fifth

Amendment grounds, of all statements “on the theory

that a person could not be denied his right to counsel on

the fortuitous circumstances that someone might not see

fit to call the station” on the suspect’s behalf. 451 A.2d

at 30. Petitioner maintains that that opinion correctly

reflects the law on a suspect’s Fifth Amendment right

to counsel although petitioner does not subscribe to that

opinion to the extent that it may be based on the

absence of an attorney-client relationship between the

defendant therein and the attorney who called police on

his behalf, a factor petitioner maintains is irrelevant

under the Fifth Amendment.

It has been held that the government’s burden of

showing a defendant's waiver of his Sixth Amendment

right to counsel is greater than its burden of showing a

defendant's waiver of his Fifth Amendment right to

counsel. United States v. Satterfield, 558 F.2d 655, 657

(2nd Cir. 1976); United States v. Springer, 460 F.2d

1344, 1352 (7th Cir. 1972); People v. Anthony, 38 III. App.

8d 427, 347 N.E.2d 770, 774 (5th Dist. 1976). In re-

—22—

sponse to respondent’s arguments that his statements

were elicited in violation of both Massiah v. United

States, 377 U.S. 201 (1964) and Brewer v. Williams, 430

U.S. 387 (1977), two courts have already found that peti-

tioner met that higher burden and had demonstrated

that respondent validly waived his Sixth Amendment

right to counsel. People v. Smith, 91 Ill.App.3d 438, 414

N.E.2d 1281 (2nd Dist. 1980). By not addressing that

issue® but instead imposing a per se rule which allows

counsel to invoke a defendant's Fifth Amendment rights

for him, the Illinois Supreme Court has made the gov-

ernment’s burden to demonstrate a valid waiver of the

Fifth Amendment right to counsel higher than its burden

to demonstrate a valid waiver of the Sixth Amendment

right to counsel.

Certiorari should be granted to resolve such confusion

concerning the Fifth and Sixth Amendment rights to

counsel, to clarify that Miranda accorded rights to sus-

pects, not counsel, and ultimately to reverse the judg-

ment of the Illinois Supreme Court.

In the Sixth Amendment context, the Illinois Supreme

Court has held that a defendant validly may waive his right

to counsel even where counsel and police had made an agree-

ment that the defendant would not be questioned in the ab-

. Sune. People v. Aldridge, 79 III. 2d 87, 402 N.E.2d

-

CONCLUSION

For the foregoing reasons, petitioner requests that a

Writ of Certiorari be issued to review the decision of the

Supreme Court of the State of Illinois and, upon review,

to reverse that court’s decision in this case.

Respectfully submitted,

New, F. Harrican

Attorney General, State of Hlinois

Mienakt. B. WWI NST“

Assistant Attorney General

188 West Randolph Street, Suite 2200

Chicago, Hlinois 60601

(312) 793-2570

Counsel for Petitioner

Puyius J. Perko

Wim L. Browers

State's Attorneys Appellate

Service Commission

35 Fountain Square Plaza

Elgin, Illinois 60120

Dennis ScoumMacner

State 's Attorney

Ogle County Courthouse

Oregon, Illinois 61061

Of Counsel

* Counsel of Record

January 21, 1983

—la—

APPENDIX A

Docket No. 54575—Agenda 4—January 1982.

THE PEOPLE OF THE STATE OF ILLINOIS, Appellee,

v. DAN W. SMITH, Appellant.

JUSTICE WARD delivered the opinion of the court:

Dan W. Smith, the defendant, was convicted of murder

and armed robbery after a jury trial in the circuit court of

Ogle County. He was sentenced to life imprisonment for

the murder and to 50 vears for the armed robbery. Before

trial, the defendant had unsuccessfully attempted to have

two incriminating statements, which he had given while in

police custody, suppressed. The statements were admitted

into evidence and read to the jury. The appellate court,

holding that the trial court did not err in admitting the

statements, affirmed. (91 Ill. App. 3d 438.) We granted the

defendant leave to appeal to this court under Rules 315

and 612 (73 Ill. 2d Rules 315, 612).

Pursuant to an arrest warrant issued in Ogle County,

the defendant was arrested in Winnebago County shortly

before midnight on Friday, September 1, 1978. Mary

Smith, who was living with the defendant at the time, was

also arrested. The pair was taken to the Winnebago

County sheriff's office. There, at about 5:30 a.m. on Sep

tember 2, they met with attorney Joseph Spiezer, who,

Mary Smith testified, agreed to represent them. Later that

morning they were advised by a circuit court judge in Win-

nebago County of the charges against them and that in

view of the murder charge bond would not be set. The

defendant and Mary Smith were then transported to the

Ogle County jail.

—2a-—

The first incriminating statement was taken in the

afternoon of Sunday, September 3, during an interrogation

of the defendant by an Ogle County sheriff's deputy. Police

had attempted to question the defendant in the early morn-

ing hours of September 2, but he was incoherent. At the

September 3 interrogation, however, he related that Mary

Smith and he had driven to The Other Place Tavern in

Mary Smith's automobile. Mary waited while he robbed the

proprietor, Mrs. Clifty Davis. He took Mrs. Davis with him

at gunpoint and drove off with her in her automobile.

Mary Smith followed in her car. He said that he shot and

killed the proprietor when she attempted to grab his gun.

The defendant signed a transcription of the statement on

Monday, September 4, while being questioned by the sher-

iff of Ogle County. He also made a handwritten statement,

in which he told a history of heroin use and of being “high

on heroin” at the time of the robbery and killing.

An information was filed on September 5. It charged

the defendant and Mary Smith with murder and armed

robbery.

The defendant raises several issues here, all of which

were decided against him in the appellate court. First, he

contends that the statements should have been sup-

pressed as being violative of his right to counsel, on the

ground that on September 2 the police had prevented his

attorney and him from consulting. Too, he claims that the

jury was biased in favor of the prosecution because pursu-

ant to Witherspoon v. Illinois (1968), 391 U.S. 510, 20 L.

Ed. 2d 776, 88 S. Ct. 1770, jurors who stated that they

could not impose the death penalty under any circum-

stances were excused for cause. He argues that his life

sentence was an abuse of discretion, and he says that the

trial court violated the Constitution of Illinois by disre-

garding evidence of his rehabilitative potential in sentenc-

ing him. Our decision as to the statements given is dispos-

itive of the appeal.

—

At the hearing on the motion to suppress, attorney

Carol Ellerby testified that she was a partner of Spiezer.

She said that on September 2, the day before the defend-

ant gave the first incriminating statement, Spiezer called

her from Rockford, in Winnebago County, and asked her

to visit the defendant and Mary Smith. She arrived at the

Ogle County jail at approximately 3 p.m. on September 2.

The jailer, whom she thought was John Willard, told her

that she could not see the defendant because he was go-

ing through heroin withdrawal and was shaking so

hard” that he could not stay on his bed. Ellerby then

wrote upon one of her business cards that she was

Spiezer’s partner and that he should not make a state

ment without one of his lawyers being present. The jailer

agreed to give the defendant the card, and allowed her to

see Mary Smith. There was no evidence of any consulta-

tion by the defendant with a lawyer until after he had

given the incriminating statements.

Willard testified that he was a jailer when Ellerby

came to the jail on September 2, but he could not recall

her asking to see the defendant. He said that he had

never refused an attorney access to a prisoner, and he de-

nied that he told her that the deferidant was going

through heroin withdrawal. He further testified, as did

other officers, that the defendant was not going through

withdrawa! at the time in question. In fact, no reason was

presented at the hearing that would have warranted pre-

venting one from visiting the defendant.

The defendant testified too. He said that he did re-

ceive Ellerby’s card sometime on September 2. There is

no evidence in the record, though, that he was told that

Ellerby had requested to see him.

The trial court, in its findings, accepted Ellerby's ver-

sion of the conversation with Willard and found that at

the time of her visit the defendant was represented by

—44a—

Spiezer's firm. Nevertheless, the court admitted the state

ments into evidence.

The court said that in the period from sometime in

the afternoon of September 2 through September 3 and

4, the defendant was no longer represented by an attor-

ney and found that law-enforcement personne] at the jail

were aware of that fact. The findings were based upon

testimony that at about 4 p.m. on September 2, Robert

Thorsen, another partner of Spiezer, appearing beſore a

different judge, told him that Spiezer had decided not to

represent the defendant because he was without funds.

At about 4:30 p.m., Thorsen also told Mary Smith that

their firm was not going to represent the defendant.

There is nothing in the record to show that the defendant

was ever advised that Spiezer was not going to represent

him. Spiezer did in fact enter an appearance as defend-

ant’s counsel on September 5. Spiezer represented the

defendant at the hearing of the motion to suppress the

confessions and at the defendant’s trial.

In addition, the trial court concluded that at the time

the defendant gave the statements he knowingly waived

his right te have counsel present. The court found that he

was given Miranda warnings and had freely decided to

waive them. At no time, the court found, did he request

counsel. Further, the court found that his decision to

speak was voluntary, the court noting that the defendant

was not without experience with the criminal justice sys-

tem. The court found, too, that at no time immediately

before or during the giving of the statements was the

defendant under the influence of any drug or suffering

heroin withdrawal such as to affect his free will.

The appellate court agreed with the trial court that

the defendant waived his right to counsel at the interro-

gations. It did hold, though, that the defendant’s sixth

amendment right to counse] was violated by the jailer’s

*

reſusal to allow Ellerby to visit the deſendant, but the

court considered that this did not taint the statements ob-

tained on September 3 and 4 so as to require their sup-

pression. 91 Ill. App. 3d 438, 442-47.

We consider, however, that the statements should

have been suppressed. We rest that conclusion upon the

defendant’s right to counsel] during custodial intcrroga-

tion. That right stems from the fifth amendment protec-

tion against self-incrimination. We nced not consider the

correctness of the appellate court’s analysis in terms of

the general sixth amendment’ right to counsel, which

arises upon the commencement of adversary judicial crim-

inal proceedings. 91 Ill. App. 3d 438, 442-45.

In Miranda v. Arizona (1966), 384 U.S. 436, 16 L.

Ed. 2d 694, 86 S. Ct. 1602, the Supreme Court held, that

prior to custodial interrogation, the subject must be in-

formed that he has the right to remain silent and to have

an attorney present. The holding was designed to protect

an accused’s right against compulsory self-incrimination.

In effect, the court recognized a right to counsel under

the fifth and fourteenth amendments as to custodial inter-

rogation that is distinct from the right to counsel assured

by the sixth amendment. See Edwards v. Arizona (1981),

451 U.S. 477, 480-82 n.7, 68 L. Ed. 2d 378,°383-84 n. 7,

101 S. Ct. 1880, 1882-83 n. 7.

The right to counsel under Miranda 's holding can, of

course, be waived, if the waiver is made knowingly and

intelligently. (Miranda v. Arizona (1966), 384 U.S. 436,

475, 16 L. Ed. 2d 694, 724, 86 S. Ct. 1602, 1628.) But the

giving of prescribed warnings and a clear waiver by the

one interrogated are “prerequisites to the admissibility of

any statement made by a defendant.” (384 U.S. 436, 476,

16 L. Ed. 2d 694, 725, 86 S. Ct. 1602, 1629.) Such a

waiver must be demonstrated by the prosecution, though

a

it may be inferred from the actions and words of the one

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

369, 373, 60 L. Ed. 2d 286, 292, 99 S. Ct. 1755, 1757.

Here, we consider that there was not a knowing. and

intelligent waiver of the right to counsel during the inter-

rogation in view of the interference with. Ellerby’s effort

to consult with the defendant. In this regard, we deem

that the decision in State v. Haynes (1979), 288 Or. 59,

602 P.2d 272, cert. denied (1980), 446 U.S. 945, 64 L. Ed.

2d 802, 100 S. Ct. 2175, is persuasively relevant.

In Haynes, the defendant was arrested on a Saturday

evening as a suspect in a murder. He was questioned that

night and made some admissions. Meanwhile, his wife re-

tained an attorney to represent him. The lawyer tele-

phoned the police at about § a.m. on Sunday morning and

informed them that he was coming to confer with the

defendant at the jail. At 8:30 a.m., about the time the at-

torney arrived, the police removed the defendant to an-

other location to question him. There, the defendant gave

details of the murder. On Sunday evening he reenacted

the murder on video tape. He gave another statement on

the following day.

The trial court found that the police, who had taken

the defendant from the jail, were aware that the attorney

was coming to visit the defendant and knew that moving

him would frustrate the attorney’s intention to confer

with the defendant. The trial court did. not suppress any

statements, however, because it found that the defendant

was repeatedly advised of his rights and understood

them. He was convicted of murder and sentenced to life

imprisonment.

The Supreme Court of Oregon reversed the convic-

tion, on the ground that the trial court should have sup-

pressed the statements obtained after the police had in-

terfered with the attorney’s attempt to consult with the

—74a2—

defendant. The court acknowledged that a person in cus-

tody, after being advised of his relevant rights, could vol-

untarily waive consulting with a lawyer and give state

ments which would be admissible at trial. The court,

however, held:

When unknown to the person in this situation an identi-

fied attorney is actually available and seekin’ opportu-

nity to consult with him, and the police do nc. wiiurm him

of that fact, any statement or the fruits of any statement

obtained after the police themselves know of the attor-

ney’s efforts to reach the arrested person cannot be ren-

dered admissible on the theory that the person knowingly

and intelligently waived counsel.” 288 Or. 59, 70, 602 P.2d

272, 277.

The court reasoned:

It is not disputed that an arrested person has a right to

have access to counsel when taken into custody and there-

after, subject only to the practical necessities of custody

that may temporarily prevent immediate communication

with counsel. We know nothing in Oregon law, nor did

counsel for the state when asked, that would authorize the

police to prevent or delay communication between an ar-

rested person and a lawyer who is, or who is asked to be-

come, that person's attorney. Certainly nothing of the kind

follows from the simple fact of an arrest.“ 288 Or. 59, 70-

71, 602 P2d 272, 277.

“To pass up an abstract offer to call some unknown

lawyer is very different from refusing to talk with an iden-

tified attorney actually available to provide at least initial

assistance and advice, whatever might be arranged in the

long run. A suspect indifferent to the first offer may well

react quite differently to the second. We do not hold

that this decision can be made only in the attorney's

presence, although in practice this would obviate the re-

curring problems of proof that have been mentioned. But

we agree that when law enforcement officers have

failed to admit counsel to a person in custody or to infurm

the person of the attorney's efforts to reach him, they can-

not thereafter rely on defendant’s ‘waiver’ for the use of

his subsequent uncounseled statements or resulting evi-

=

dence against him. We believe this rule protects the sus-

pect’s right under [the State constitution] and the federal

fifth and 14th amendments not to testify against himself

.“ 288 Or. 59, 72-74, 602 P.2d 272, 278-79.

There have been other holdings in which courts have

suppressed statements obtained after police have foiled an

attorney’s efforts to consult with a client. See State v.

Matthews (La. 1982), 408 So. 2d 1274 (because police

refused to tell defendants their attorney was available and

seeking to assist, subsequent interrogation was made

without informed waiver of rights under State constitu-

tion incorporating the Miranda rules); Commonwealth v.

McKenna (1969), 355 Mass. 313, 244 N.E.2d 560 (sus-

pect’s waiver of right to counsel at interrogation is inef-

fective where police have refused to admit counsel and to

inform suspect of attorney’s presence); see also Common-

wealth v. Hilliard (1977), 471 Pa. 318, 370 A.2d 322 (plu-

rality opinion) (when the attorney has been denied access

to the suspect, and the suspect has not been told of the

availability of the attorney, failure by the suspect to re-

quest counse] cannot support a finding of waiver of coun-

sel); State v. Jones (1978), 19 Wash. App. 850, 578 Pad 71

(when the attorney requested that interrogation not be

conducted in his absence, and police do not inform the

defendant of the lawyer’s availability and desire to be

present, there was no knowing and intelligent waiver of

the right to counsel).

The Supreme Court in Miranda also condemned a po-

lice refusal to admit counsel. In Escobedo v. Illinois (1964),

378 U.S. 478, 12 L. Ed. 2d 977, 84 S. Ct. 1758, police

refused a suspect’s request to speak with his attorney dur-

ing a preindictment interrogation. The police also failed to

advise him that he had the right to remain silent. The

court in Escobedo judged that the police conduct violated

the suspect’s right to the assistance of counsel] under the

sixth amendment. In Miranda, the court discussed the Es-

—9a—

cobedo decision. It noted that Escobedo’s lawyer had vis-

ited the jail during the interrogation and asked to speak

with the suspect. The Miranda court stated: The police

also prevented the attorney from consulting with his client.

Independent of any other constitutional proscription, this

action constitutes a violation of the Sixth Amendment

right to the assistance of counsel and excludes any state-

ment obtained in its wake.” (Miranda v. Arizona (1966),

384 U.S. 436, 465-66 n.35, 16 L. Ed. 2d 694, 718-19 n.35,

86 S. Ct. 1602, 1623 n.35.) We would observe, though, that

in looking back to Escobedo the Supreme Court has viewed

it as a decision designed to protect the fifth amendment

privilege against compelled self-incrimination rather than

to insure the sixth amendment right to counsel. Kirby v.

Illinois (1972), 406 U.S. 682, 689, 32 L. Ed. 2d 411, 417,

92 S. Ct. 1877, 1882.

We hold that when police, prior to or during custodial

interrogation, refuse an attorney appointed or retained to

assist a suspect access to the suspect, there can be no

knowing waiver of the right to counsel if the suspect has

not been informed that the attorney was present and seek-

ing to consult with him.

Here the defendant was not informed that his attorney

was available to confer with him during the weekend and

that the attorney had personally requested to see him. We

would note, too, that the reason given the attorney for de-

nying access to the defendant, which Ellerby testified that

she believed, was one which would indicate that no early

interrogation of the defendant was to be expected.

The State points out that the defendant at some time

did receive Ellerby’s business card. But without his being

informed that Ellerby had also requested to confer with

him, the card and message were of little value. Simply re-

ceiving the card easily could have led the defendant to be-

lieve his lawyers were too busy that weekend to consult

with him in person or were disinterested in his case or wel-

—10a—

fare. Receiving the card and no more would have cha-

grined and disappointed the defendant in the character of

representation he was receiving from those who he be

lieved were his attorneys. Accepting the State's argument

would, as the defendant observes, permit police to isolate a

suspect from his counsel and regulate or determine what

information or advice a suspect is to receive.

Finally, the State argues that even if the statements

should not have been admitted, admitting them was harm-

less error. Considering the record we cannot agree. The

statements were the basis for the State's lengthy, detailed

and apparently effective cross-examination of the defend-

ant, who testified that he was nowhere near the tavern at

the time of the crimes. Moreover, as the defendant points

out, the only other evidence directly linking the defendant

to the crimes was the testimony of Mary Smith, who

pleaded guilty to armed robbery, and whose murder

charges were dropped in exchange for her testimony.

For the reasons given, the judgment of the appellate

court is reversed. The judgments of the circuit court con-

victing the defendant of armed robbery and murder are re-

versed and the cause is remanded to the circuit court for a

new trial.

Reversed and remanded.

—

APPENDIX B

ILLINOIS SUPREME COURT

JULEANN HORNYAK, CLERK

SUPREME COURT BUILDING

SPRINGFIELD, ILL. 62706

(217) 782-2035

November 24, 1982

State’s Attorneys Appellate

Service Commission

Second Judicial District

35 Fountain Square Plaza - Suite 204

Elgin, Illinois 60126

No. 54575—People State of Illinois, = gy vs. Dan W.

Smith, appellant. Appeal, Appellate Court,

Second District.

The Supreme Court today DENIED the petition for

rehearing in the above entitled cause.

We have received from the Reporter of Decisions a cor-

rected page 7 to the opinion. Kindly substitute the en-

closed to the opinion forwarded to you on Septem-

ber 17, 1982.

Very truly yours,

/s/ Juleann 2

Clerk of the Supreme Court

— le—

APPENDIX C

STATE OF ILLINOIS

OFFICE OF

CLERK OF THE SUPREME COURT

SPRINGFIELD 62706

December 9, 1982

Hon. Tyrone C. Fahner

Attorney General of the

State of Illinois

188 W. Randolph Street

Chicago, IL 60601

THE COURT HAS ENTERED THE FOLLOWING

ORDER IN THE CASE OF: GEN. NO. 54575

In re: People State of Illinois

v. Dan W. Smith.

“The motion by the — for recall of mandate is

allowed. Appellee is directed to file with the Clerk of

this Court written notice of the filing of the petition

with the United States Supreme Court.”

A certified copy of this order has been forwarded to the

Clerk of the M Court, Second Distriet and Clerk

of the Circuit Court, Ogle County.

ALL COUNSEL OF RECORD JULEANN HORNYAK, CLERK

“ VO OO

ons

OFFICE OF

CLERK OF THE SUPREME COURT

STATE OF ILLINOIS

SPRINGFIELD 62706

January 10, 1983

State Appellate Defender

63 Douglas Avenue

Elgin, IL. 60120

In re: People State of Illinois, appellee. vs.

Dan W. Smith, appellant. No. 54575

Counsel:

We have today received from the Reporter of Decisions a

corrected page 7 and 8 to the opinion in the above cause.

May we ask that you substitute the enclosed pages to the

opinion forwarded to you on September 17, 1982.

Very truly yours,

/s/ Juleann Hornyak

Clerk of the Supreme Court

— —

ce: Tyrone Fahner

Dennis Schumacher

SAASC-Elgin

~_

APPENDIX D

No. 79-245

IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT

PEOPLE OF THE STATE OF ILLINOIS,

Plaintiff-A ppellee,

Vv.

DAN W. SMITH,

Defendant-A ppellant.

Appeal from the Circuit Court for the 15th Judicial

Circuit, Ogle County, Illinois.

MR. JUSTICE VAN DEUSEN delivered the opinion of the

court:

On September 5, 1978, an information was filed

against the defendant, Dan Smith, and Mary Smith,

charging them with the murder (Ill. Rev. Stat. 1977, ch.

38, par. 9-1(a)) and armed robbery (Ill. Rev. Stat. 1977, ch.

38, par. 18-2(a)) of Clifty Davis. These offenses were com-

mitted on August 25, 1978. Mary Smith’s case was

severed from that of the defendant prior to trial. After a

trial by jury, the defendant was found — 4 of both

offenses. The State sought to impose the death penalty,

and the defendant waived a jury for the purpose of

sentencing. After holding a separate sentencing hearing

to determine whether the death penalty should be im-

posed, the trial court concluded that sufficient mitigating

circumstances were present which precluded the imposi-

tion of the death penalty. The court subsequently sen-

*

tenced the defendant to a term of natural life im pr ison-

ment on the murder conviction and to a concurrent term

of 50 years imprisonment on the armed robbery convic-

tion. The defendant appeals.

On appeal, the defendant first contends that the trial

court erred in not suppressing two incriminating

statements which he alleges were elicited in violation of

his right to counsel as provided in the sixth and

fourteenth amendments to the United States Constitution

(U.S.Const., amends VI, XIV) and section 8, article 1, of

the Illinois Constitution of 1970 (III. Const. 1970, art. 1,

§8). More specifically, he asserts that his tape-recorded

statement of September 3, 1978, was the product of an

unlawful intrusion into the attorney-client relationship

which occurred when his attorney was refused permis-

sion to meet with him at 3 p.m. on Saturday, September

2, 1978. He contends that this interference amounted to a

violation of his sixth amendment right to counsel and

tainted the subsequent confession of September 3. In this

regard, he maintains that there were not intervening cir-

cumstances present which were sufficient to dissipate the

taint of illegality caused by the police misconduct. Con-

tinuing, he asserts that since his September 4 statement

was the fruit of the first illegally elicited statement, it too

must be suppressed. Finally, the defendant argues that at

no time did he waive his sixth amendment right to the

assistance of counsel. Inherent in this contention is the

assertion that the statements must be r as in-

dependently violative of his sixth amendment right to

counsel during police interrogation, since adversary

judicial proceedings had already commenced.

The sixth amendment right to counsel attaches at the

time that adversary judicial criminal proceedings have

been initiated against the accused, whether by way of for-

mal charge, arraignment, preliminary hearing, informa-

tion or indictment. (Brewer v. Williams (1977), 430 U.S.

387, 398, 51 L.Ed.2d 424, 436, 97 S.Ct. 1232, 1239, citing

Kirby v. Illinois (1972), 406 U.S. 682, 688-89, 32 L.Ed.2d

411, 417, 92 S.Ct. 1877, 1881-82; accord, People v. Bur-

bank (1972), 53 III. 2d 261, 271-72, cert. denied (1973), 412

U.S. 951, 37 L.Ed.2d 1004, 93 S.Ct. 3017.) This court in

—3d—

People v. Hinton (1974), 23 III. App. 3d 369, 372 held that a

complaint followed by an arrest warrant and the actual

ar rest of the defendant amounts to a formal charge under

the language of Kirby v. Illinois describing the kind of

adversary judicial criminal proceedings which vests the

right to counsel. (Accord, People v. Marshall (1977), 47

Ill.App.3d 784, 786, see United States ex rel. Sanders v.

Rowe (N.D. Ill. 1978), 460 F.Supp. 1128, 1139; People v.

Huffman (1980), 81 Ill.App.38d 901, 909; People v. Me-

Donald (1974), 23 III. App.3d 86, 90, affd (1976), 62 III. 2d

448.) Here the defendant had been arrested and appeared

before a judge at 9:30 a.m. on September 2, 1978, at

which time the judge read him the complaint and the

charges against him and informed him of his con-

stitutional rights. Based on the cases cited immediately

above and the fact that the defendant had appeared

before a judicial officer, the defendant’s sixth amend-

ment right to counsel attached at the time he appeared

before the judge.

Having disposed of this threshold inquiry, the question

arises whullar the defendant’s sixth amendment right to

counsel was infringed on September 2, 1978, when at-

torney Ellerby of the Spiezer law firm attempted to visit

or consult with him.

Attorney Carol Ellerby, a partner in the Joseph

Spiezer law firm, testified that she went to the Ogle

County jail at approximately 3 p.m. on Saturday,

September 2, 1978, to visit the defendant and Mary

Smith. She spoke with the jailer, whom she believed was

John Willard, and informed him that she had come to see

Dan Smith and Mary Smith. He told her that she could

not see the defendant because he was undergoing

withdrawal and was shaking so hard he could not stay on

the bed. She took out a business card and wrote on the

back of it that she was Joe Spiezer’s partner and the

defendant was not to make a statement unless one of his

lawyers was present. She gave the card to the jailer and

asked him if he would see that the defendant received it;

the jailer responded that he would do so. Attorney Eller-

by did not see the defendant at any time on September 2.

—

Carol Ellerby then met with Mary Smith shortly after

she was refused permission to visit the defendant. Eller-

by testified that as of 3 p.m. the Spiezer law firm was

representing Mary Smith. After visiting briefly with

Mary Smith, Ellerby informed attorney Spiezer that she

was not allowed to consult with the defendant. At ap-

proximately 3:30 p.m., she returned to the jail with

another partner of the Spiezer firm, Robert Thorsen, and

attempted to see Mary Smith again. Ellerby and Thorsen

met with Mary Smith at 4:30 p.m. and informed her that

they did not represent the defendant and asked her if she

wanted the Spiezer firm to represent her. Mary Smith

responded that she was going to be represented by

another attorney provided by her family.

Judge Moore testified that he met with attorneys Eller-

by and Thorsen at their request on Saturday, September

2, 1978, at approximately 4 p.m. The judge stated that

Thorsen informed him that the Spiezer law firm did not

represent the defendant because he did not have any

money.

Preliminarily, it should be noted that the trial court

made a finding that the Spiezer law firm was represent-

ing the defendant as of 3 p.m. on September 2, although

the trial court believed that such representation had been

terminated an hour or so later after attorneys Ellerby

and Thorsen met with Judge Moore. In addition, all the

law enforcement officials who testified in this cause

stated that the defendant was not undergoing heroin

withdrawal on Saturday, September 2, and no valid

reason was adduced at trial to explain or justify the

denial of personal consultation between attorney Ellerby

and the defendant.

Given these facts, the jailer wrongfully interfered

with the attorney-client relationship here. The question

remains whether it was a wrongful interference which

rose to the level of a constitutional infringement of the

defendant’s sixth amendment right to counsel such that

the statements subsequently obtained from the defendant

must be suppressed.

*

Relying on fourth amendment cases which have

applied the taint analysis and suppressed evidence which

was obtained after a violation of the defendant's con-

stitutional rights (Dunaway v. New York (1979), 442 U.S.

200, 60 L.Ed.2d 824, 99 S.Ct. 2248; Brown v. Illinois

(1975), 422 U.S. 590, 45 L.Ed.2d 416, 95 S.Ct. 407), the

defendant contends that the statements he gave to Officer

Messer approximately 24 hours after attorney Ellerby’s

attempted visit was the product of the unlawful in-

terference with the attorney-client relationship and

therefore must be suppressed, since no intervening cir-

cumstances occurred to dissipate the taint of the illegal

police conduct. We believe that the fourth amendment

precedent for requiring the exclusion of evidence tainted

as a result of police conduct which abrid con-

stitutional rights is equally applicable in the sixth

amendment right to counsel area. See United States v.

Wade (1967), 388 U.S. 218, 239-42, 19 L.Ed.2d 1149,

1164-67, 87 S.Ct. 1926, 1939-40; Maglio v. Jago (6th Cir.

1978), 580 F.2d 202, 207; United States v. Massey (M.D.

Fla. 1977), 437 F.Supp. 843, 861-62.

To determine whether there is a sufficient causal con-

nection between the illegality and the subsequent confes-

sion given by the defendant on September 3 so as to re-

quire its exclusion from evidence, it is necessary to apply

the test recently articulated in Dunaway v. New York

(1979), 442 U.S. 200, 60 L.Ed.2d 284, 99 S.Ct. 2248 and

Brown v. Illinois (1975), 422 U.S. 590, 45 L.Ed.2d 416, 95

S.Ct. 2254. Thus, the court must consider the temporal

proximity of the constitutional violation and the resultant

confession, the presence of intervening circumstances,

the purpose and flagrancy of the official misconduct and

whether Miranda warnings were given. Dunaway v. New

York, 422 U.S. 200, 218, 60 L.Ed.2d 824, 839-40, 99 S.Ct.

2248, 2259; Brown v. Illinois, 422 U.S. 590, 603, 45

L.Ed.2d 416, 427, 95 S.Ct. 2254, 2261; accord, People v.

McMahon (1980), 83 Ill.App.3d 137, 144.

We note that almost 24 hours passed between the time

attorney Ellerby was denied permission to see the defen-

dant on September 2 and the initiation of the questioning

8

session with Officer Messer which resulted in the defen-

dant’s statement of September 3. There is no evidence in

the record that the police attempted to question the

defendant during this 24 hour hiatus. (Cf. People v. James

(1980), 82 Ill.App.3d 551, 558.) This is not a case where

the police prevented the attorney from conferring with

her client and then sought to exploit her absence by in-

terrogating the defendant immediately after or shortly

after she departed.

In addition, there were significant intervening cir-

cumstances which support the view that causal connec-

tion between the police misconduct and the incriminating

statement of September 3 was sufficiently attenuated to

permit the use at trial of the statement.

The defendant was given the requisite Miranda warn-

ing by Ogle County deputy sheriff Melvin Messer early

on the morning of Saturday, September 2, 1978, and

acknowledged that he understood the warnings and his

constitutional rights; however, the defendant was unable

to respond to Messer’s questions in a logical or coherent

manner at that time. At approximately 9:30 a.m. on that

morning, he was taken before a judge who advised him of

his right to remain silent, his right to the assistance of

counsel during any interrogation or questioning, his right

to a prompt preliminary hearing and the fact that there

was no bond in this case. The judge’s testimony was that

the defendant’s answers were responsive to his ques-

tions and that he appeared normal and was not sick or

staggering. On September 3, 1978, at approximately 2:15

p.m., Officer Messer again advised the defendant of his

constitutional rights as contained in the Miranda warn-

ings, and the defendant told him that he understood his

rights and that the officer didn’t have to recite them. The

defendant consented to give a statement and asked that it

be recorded. Prior to the start of the formal statement,

which took place from 2:35 p.m. to approximately 3 p.m.

on that date, the defendant was allowed to meet with

Mary Smith for ten minutes or so. Following this con-

ference with Mary Smith, he was again given the Miran-

da warnings and stated he unders them and was

—7d—

willing to talk about the case. He then gave the tape-

recorded statement in question, in which he confessed

that he committed the armed robbery and shot the vic-

2 1 he contended that the shooting was ac-

cidental.

At 9 a.m. on Monday, September 4, 1978, the defendant

was examined by Dr. Srichai, who treated Dan Smith for

heroin withdrawal and found him capable of reading, un-

derstanding and signing the tape-recorded statement of

the previous day, which subsequently had been tran-

scribed. At the request of the defendant, he was again

permitted to confer with Mary Smith. In Mary Smith’s

presence the sheriff again read the defendant the Miran-

da warnings and the defendant acknowledged he un-

derstood them. The defendant and Mary Smith went over

the statement together, and the defendant made some

corrections and asked for another statement form on

which he added a brief statement in his own hand-

writing, in which he again implicated himself in the

murder and armed robbery. Jerry Brooks, sheriff of Ogle

County, testified that the defendant appeared normal but

a little nervous and that no threats or promises had been

made to the defendant. The defendant was not physically

mistreated; nor did he complain at any time to the sheriff

that he was being prevented from seeing a doctor.

The defendant testified that he took drugs on the morn-

of the murder of Clifty Davis and that he had been

t ing drugs throughout Friday, September 1, 1978, the

day of his arrest. He stated that he had been using heroin

on a daily basis for more than a year prior to his arrest

but did not experience problems understanding what

* were saying during the period of his drug abuse:

e also believed he understood what the police officers

were saying to him during the questioning which oc-

curred on the morning of September 2, 1978. On Satur-

day morning September 3, 1978, he asked an officer if he

could immediately see a doctor. He also admitted that Of-

ficer Messer gave him the Miranda warnings on Sunday

afternoon and that he understood them. He further

testified that after he talked to Officer Messer for a few

minutes on Sunday afternoon he asked Messer if he could

see a doctor and that Messer informed him that he could

*

see the doctor after he gave a statement, because the

statement would not be any good if he gave it while under

medication. Approximately 30 minutes after he had

8 the tape- recorded statement, he was visited by

. Warmolts, at which time he was given some Valium.

He admitted that he did not mention to Dr. Warmolts

that he had to confess to the instant offense in order to get

an opportunity to see the doctor. In addition, he testified

that on Monday morning September 4, 1978, he was

examined by Dr. Srichai and given medication as a re-

sult. Approximately one hour later, he met with Sheriff

Brooks. At this time he was allowed to consult with Mary

Smith; he then examined the yg typewritten

statement he had orally given to Officer Messer the day

before, made certain corrections and signed each page of

the statement. He then requested a blank statement page,

made an additional statement and signed it. The defen-

dant further stated that he freely and voluntarily signed

the statements and that nobody twisted his arm to get

him to sign them.

We emphasize here that the defendant testified that he

received the card containing the cautionary message

which attorney Ellerby had given the jailer. Apparently

the police forwarded from the attorney to the defendant

the cautionary message which had warned Dan Smith

not to make any statements unless one of his attorneys

was present. Although this message may not have been as

effective, influential or forceful as a personal admonition,

it is a significant event indicating both that the defendant

did receive a warning from his attorney and that the

police did not completely prevent the attorney from ap-

prising or impressing upon her client that he should not

make a statement in the absence of counsel. Further-

more, the en did grant the defendant’s request to

speak with 8 Smith before he gave the incriminating

statement to Officer Messer on September 3. Given the

evidence in this case, no inference or suggestion can be

drawn from the record that law enforcement officials

were engaged in a calculated plan to keep the defendant

incommunicado until a confession could be extracted.

Com Darwin v. Connecticut (1968), 391 U.S. 346, 20

L.Ed.2d 630, 88 S.Ct. 1488.

—9d-—

An additional factor which further insulated the defen-

dant’s September 3 statement from the unlawful police

conduct on September 2 is the giving of the Miranda

warnings before questioning and the defendant’s waiver

of his rights in response to the admonitions. While the

Miranda warnings alone and per se are not sufficient to

attenuate the taint of unconstitutional conduct (Dunaway

v. New York (1979), 442 U.S. 200, 216-17, 60 L.Ed.2d 824,

838-39, 99 S.Ct. 2248, 2258-59; Brown v. Illinois (1975),

422 U.S. 590, 601-603, 45 L.Ed.2d 416, 426-27, 95 S.Ct.

2254, 2260-61), the giving of them is a significant factor

favorable to the State’s position when considered together

with the other factors discussed above. Finally, from

what has been said above, we believe that the conduct of

the police was not purposely designed to infringe upon

the defendant’s sixth amendment right to counsel and

was not of a flagrant nature.

Given the totality of the facts and circumstances of this

case, we believe the causal connection between the police

misconduct and the defendant’s statement of September

3 was sufficiently attenuated to dissipate the taint of il-

legality. Accordingly, we determine that the statement of

September 3 was not obtained as a result of the unlawful

interference with the attorney-client relationship on

September 2; similarly, the subsequent handwritten

statement given to Sheriff Brooks on September 4 was

not tainted by the prior police illegality. Thus, we con-

clude that the incriminating statements were properly

admitted into evidence.

The defendant also contends that, in view of the totality

of the circumstances surrounding the making of the tape-

recorded statement on September 3, 1978, he did not

knowingly waive his sixth amendment right to counsel.

The determination of whether the accused knowingly, in-

tentionally and intelligently waived the right to counsel

depends on the particular facts and circumstances of the

case, including the conduct, background and experience

of the accused, and a court will indulge in every

reasonable presumption against the waiver of a con-

stitutional right such as the right to counsel. (F v.

Blanchard (1967), 37 I11.2d 69, 74; see Brewer v. Williams

3

(1977), 430 U.S. 387, 404, 51 L. Ed. 2d 424, 440, 99 S. Ct.

1232, 1242; People v. Petty (1977), 54 III. App. 3d 1044,

1050.) Where the question of whether the defendant

knowingly and voluntarily waived the right to counsel is

raised in a motion to suppress, the reviewing court will

not disturb the trial court’s ruling unless it is contrary to

the manifest weight of the evidence. People v. Aldridge

(1980), 79 III. 2d 87, 94-85; People v. Petty (1977), 54 III.

App.3d 1044, 1050.

In this case, at the conclusion of the hearing on the mo-

tion to suppress, the trial court determined that the

defendant had intelligently and knowingly waived his

right to counsel under the sixth amendment and conse-

quently the two statements admitted into evidence were

not taken in derogation of his sixth amendment right to

counsel. The trial court made a number of findings which

are relevant to the sixth amendment issue of waiver: (1)

that the defendant did not make any request, express or

implied, to consult with a lawyer, including members of

the Spiezer law firm, or to have a lawyer present before

or during the making of the two statements at issue; (2)

that he was not represented by an attorney between 4

p.m. Saturday afternoon, September 2, 1978, and Tues-

day morning, September 5, 1978, and jail and police per-

sonnel were aware of this fact; (3) that he was fully and

completely advised of his rights in accordance with the

Miranda warnings prior to the making of both

statements, that he understood the warnings and his

rights each time he was advised of them and freely,

voluntarily and intelligently waived these rights; (4) that

at no time did he refuse to talk to the — (5) that at no

time prior to or during the giving of the oral statement of

September 3 did the defendant request to see a doctor; (6)

that the defendant was visited by a physician between the

giving of the September 3 statement and the handwritten

statement of September 4, 1978 (actually he was seen by

two doctors during this time period); (7) that at no time

immediately prior to or during the giving of the

statements was the defendant under the influence of

heroin or other drugs, suffering the effects of heroin

withdrawal or other drug-induced incapacity or ex-

—11d—

periencing pain of sufficient magnitude to interfere with

the exercise of his will; (8) that the defendant at no time

was told or led to believe that he could see a doctor after

he gave a statement or that he could not have medication

because it might affect the validity of his statement; (9)

that no promises were made to the defendant and no

threats or force were directed against him; and (10) that

the defendant had prior experience with the criminal

justice system and was not exceptionally young or un-

intelligent.

After a careful examination of the evidence in this

case, in light of the foregoing principles of law, we deter-

mine that there is ample evidence to support the findings

of the trial court; that its findings are not against the

manifest weight of the evidence; that the defendant did

knowingly, intelligently and voluntarily waive his sixth

amendment right to counsel and that his constitutional

rights were not violated. See United States v. Springer

(7th Cir. 1972), 460 F.2d 1344, 1851-53, cert. denied

(1972), 409 U.S. 873, 34 L.Ed.2d 125, 98 S.Ct. 205; People

v. Smith (1969), 42 Ill. 2d 479, 482-83; People v. Sandoval

(1976), 41 Ill.App.38d 741, 743-45; People v. Anthony

(1976), 38 Ill.App.3d 427, 480-32; People v. Kelley (1973),

10 Ill.App.3d 193, 196-97.

The defendant’s second contention is that the exclusion

of prospective jurors pursuant to Witherspoon v. Illinois

(1968), 391 U.S. 510, 20 L.Ed.2d 776, 88 S.Ct. 1770

resulted in the selection of a jury which was biased in

favor of the prosecution on the question of guilt or in-

nocence. His assertion is based upon the trial court’s ex-

cusing for cause four prospective jurors who had ex-

pressed the conviction that they would not vote, under

any circumstances, at sentencing to impose the death

penalty against the defendant.

In support of his position, the defendant has cited three

studies which he claims supply convincing evidence that

a “death qualified” jury is conviction-prone or biased in

favor of the prosecution on the issue of the defendant’s

guilt or innocence. Jurow, New Data on the Effect of a

“Death Qualified” Jury on the Guilt Determination

—12d—

Process, 84 Harv.L.Rev. 567 (1971); Bronson, On the Con-

viction Proneness anc Representativeness of the Death-

Qualified Jury: An Empirical Study of Colorado

Veniremen, 42 U.ofColo.L.Rev. 1 (1970); Boehm, Mr.

Prejudice, Miss Sympathy and the Authoritarian Person-

ality: An Application of Psychological Measuring Tech-

niques to the Problem of Jury Bias, 1968 Wisc.L.Rev. 734.

The court in People v. Kirkpatrick (1979), 70 tes

166 was presented with the same study conducted by

Professor George Jurow which the defendant cites in his

brief. It should be noted that the Jurow work itself con-

tains a brief discussion and critique of the Boehm and

Bronson studies which the defendant also relies upon in

support of his position here. Although the court deter-

mined that the Jurow study was superior to former

works, it rejected the defendant's contention that the

study provided sufficient data to demonstrate that a jury

empaneled in accordance with the requirements of

Witherspoon is conviction-prone. (70 Ill.App.3d 166, 172;

accord, People v. Rhinehardt (1973), 107 Cal.Rptr. 34,

507 P.2d 642, 652-53.) A divided court in Kirkpatrick

found that Professor Jurow’s study did indicate that a

jury would have a very slight bias in favor of conviction

if those persons who unalterably — the death

penalty were excluded from the jury. But the court also

stated that the study itself admitted that such bias is

ameliorated by the exclusion of prospective jurors who

are disposed to impose the death penalty. Noting that

highly death-penalty-prone jurors were excused durin

the voir dire in that case, the Kirkpatrick court conclud

that the defendant had failed to demonstrate that the

jury selection process there resulted in a conviction-prone

jury. 70 Ill.App.38d 166, 172.

Most recently in People v. Carlson (1980), 79 III. 2d 564,

586, the same three studies relied upon by the defendant

here were called to the attention of our supreme court.

Because of the nature of the issues before the court in the

Carlson case, the court did not decide the validity of the

studies in question but in dictum stated that these articles

did support the defendant’s assertion that a jury from

—13d—

which persons who opposed the death penalty were ex-

cluded would be more prone to find a defendant guilty.

It is not necessary that we determine the validity of

these studies, since an examination of the jury select ion

in this case discloses that, as in Kirkpatrick, the highly

death-penalty-prone jurors were actually excused during

the voir dire. This procedure, in effect, eliminated those

who, under the Jurow study, would have caused the

selected jury to be biased in favor of conviction. Further-

more, the record in this case is replete with instances

where veniremen were excused because they were ad-

mittedly unable to be impartia! regarding the determina-

tion of the defendant’s guilt or innocence. The record also

indicates that all persons who were empaneled satisfac-

torily answered questions posed by the court to ascertain

whether they could be impartial on the question of the

defendant's guilt or innocence. In addition, it should be

kept in mind that in a capital case the defendant, as well

as the State, is granted 20 peremptory challenges which

he may exercise if he is not satisfied with the impartiality

of any prospective juror. (IIl. Rev. Stat. 1977, ch. 38, par.

115-4(3).) The defendant in this case has neither claimed

nor demonstrated that he exhaueted his peremptory

challenges. A defendant's failure to exhaust his peremp-

tory challenges indicates that defense counsel was of the

opinion that the selected jury represented a fair and im-

partial trier of the facts. Cf. N v. Sleezer N

III. 2d 57, 61; People v. Black (1970), 130 III. App. 2d 996,

1000, affd (1972), 52 III. 2d 544, 557, cert. denied (1973),

411 U.S. 967, 36 L.Ed.2d 689, 93 S.Ct. 2155.

Given the facts and circumstances of this case, we con-

clude that, even if we were to assume the validity of the

aforementioned studies, the jury selection procedure here

did not produce a jury biased in favor of the prosecution

so as to deny the defendant a fair trial by an impartial

jury.

Next the defendant asserts that section 5-8-1(a)(1) of

the Unified Code of Corrections (IIl. Rev. Stat. 1978 Supp.,

ch. 38, par. 1005-8-1(aX1)), the sentencing provision

providing for a term of natural life imprisonment, does

—14d—

not expressly require the trial court to consider the goal

of restoring the offender to useful citizenship in accord-

ance with the mandate of article I, section 11, of the II-

linois Constitution of 1970 (III. Const. 1970, art. I, §11) and

consequently the sentencing section is unconstitutional on

its face. This contention lacks merit.

Article I, section 11, of the Illinois Constitution of 1970

provides:

“All penalties shall be determined both according to

the seriousness of the offense and with the objective

of restoring the offender to useful citizenship.” (III.

Const. 1970, art. I, §11.)

It has been judicially recognized that the language of this

provision imposes a constitutional requirement that the

accused’s rehabilitative eae be considered in fixing

sentences, (People v. LaPointe (1980), 85 Ill Ap d 215,

222-23, appeal allowed (1980), Ill.2d . eople v.

Kane (1978), 31 Ill.App.3d 500, 512.) Our supreme court

has consistently recognized and applied the aforemen-

tioned constitutional mandate and has determined that,

for the purpose of sentencing, the spirit and objective of

the law are upheld when the sentence reflects both the

seriousness of the offense and the defendant’s potential

for rehabilitation. People v. Carlson (1980), 79 III. 2d 564,

587; People v. Murphy (1978), 72 III. 2d 421, 439.

The Illinois Supreme Court has also stated that the

general purpose of the Unified Code of Corrections is to

rehabilitate the offender, if possible, and to restore him to

useful — — (People v. Mahle (1974), 57 IIl. 2d 279,

285.) This or objective of rehabilitation is ex-

—. get — in section 1-1-2(d) of the Unified Code of

orrections (Ill. Rev. Stat. 1978 Supp., ch. 38, par. 1001-1-

2(d).) More recently, the court in People v. (1980),

81 Ill. — 422, 431 rejected a challe to the con-

stitutionality of the 3 Code of Corrections

(Ill. Rev. Stat. 1978 is „par. 1001-1-1 et seq.)

which was based on the ground that the le islature, in

enacting the new Code, tively abandoned the concept

of rehabilitation as an objective of sentencing in violation

of article I, section 11, of the Illinois Constitution of 1970.

=

Thus, it is manifest that both article I, section 11, of the

Illinois Constitution and section 1-1-2 of the Unified Code

of Corrections mandate that the trial court consider the

rehabilitative potential of the defendant in determining

whether to impose a term of natural life imprisonment

under section 5-8-l(aX1) of the Code. Contrary to the

defendant’s assertion, section 5-8-1(aX1) does not permit

the court to impose a sentence of natural life imprison-

ment solely on the basis of the nature or seriousness of the

offense committed. Furthermore, no other sentencing

provision of the Unified Code of Corrections expressly re-

quires the consideration of a defendant's rehabilitative

ee mg and the defendant’s argument would naturally

ead to the untenable conclusion that all prison sentences

imposed in Illinois are therefore violative of the con-

stitutional mandate of article I, section 11.

The defendant also maintains that the trial court con-

travened the express mandate of article I, section 11, of

the Illinois Constitution of 1970 when it sentenced him to

life imprisonment under section 5-8-1(aX1) of the Unified

Code of Corrections (IIl. Rev. Stat. 1978 Supp., ch. 38, par.

1005-8-1(aX1)) without expressly finding that the defen-

dant was devoid of rehabilitative potential.

The basic N of the defendant's constitutional

challenge is that the trial court is required to find that

the defendant totally lacks the potential to be restored to

useful citizenship before a term of natural life imprison-

ment may be imposed upon him. The defendant relies

upon the following language in this court’s opinion in

People v. LaPointe (1980), 85 Ill.App.3d 215, appeal

allowed (1980), ...... .

“* * * [There is no indication that [the trial judge]

made any analysis as to the possibility that defendant

could at some future date be restored to useful

citizenship. Certainly the sentence imposed infers that

he deemed that there was no such possibility in this

case; however, since a natural life sentence utterly

rejects the 2 = of * e 5 —

sion 8 ve supported by facts and findings.

The trial judge did find that neither defendant's at-

*

titude nor the likelihood of the offense recurring

mitigated the term of years he was to impose:

however, at no time did the judge weigh these fac-

tors in terms of restoring defendant to useful

citizenship at some time in the future.” (Emphasis

added.) (85 Ill.App.3d 215, 223.)

While it may be possible to read the language of LaPointe

to support the defendant’s contention here, our decision in

that case should not be construed in so broad a manner.

Rather, LaPointe was intended to make clear that the

trial judge must weigh and give consideration to the

rehabilitative potential of the defendant as well as the

nature and seriousness of the offense committed in deter-

mining the imposition of any sentence, including that of

natural life, and the record must disclose that the judge

did give such consideration to both elements. In

La Pointe, we determined the record was devoid of any in-

dication that the trial court had considered the defen-

dant’s potential for rehabilitation; there we were merely

stating that no inference of such consideration could be

drawn from the sentence imposed because of the nature

of that particular sentence, namely, natural life.

The next issue which the defendant raises is that the

trial court erred in imposing a natural life sentence upon

him without first stating on the record its findings regard-

ing the possibility of restoring him to useful citizenship

at some future date. Under sections 5-4-2(c) and 5-8-1(b)

of the Unified Code of Corrections (Ill.Rev.Stat. 1978

Supp., ch. 38, pars. 1005-4-l(c), 1005-8-1(b)), the trial

judge is required to specify on the record the particular

evidence, information, mitigating and aggravating fac-

tors or other reasons which led to the sentencing deter-

mination. The purpose of requiring the statement of

reasons is to eliminate speculation regarding the trial

court’s rationale and to provide the appellate court an

adequate basis for review of the sentence (People v.

Taylor (1980), 82 Ill.App.3d 1075, 1077), thereby allowing

the reviewing court to determine whether the basis for

the sentencing decision is in conformance with the

statutory purposes embodied in the Code of Corrections

(People v. Bishop (1980), 81 Ill.App.2d 521, 523).

—17d—

At the sentencing hearing in the present case, the trial

judge stated in detail his reasons for sentencing the

defendant to a term of natural life imprisonment. His

statement of reasons for sentencing did not expressly in-

clude an analysis or finding regarding the possibility of

restoring the defendant to society as a useful citizen.

Likewise, although the trial court did discuss factors in

aggravation and mitigation, there is no express indica-

tion in the sentencing hearing record that the court

weighed these factors in terms of determining the

rehabilitative potential of the defendant.

However, we note that evidence was presented to the

court in support of the defendant’s rehabilitative poten-

tial. Immediately prior to the sentencing hearing, the

court conducted a hearing to determine whether the

death penalty would be imposed. During the death penal-

ty hearing, defense counsel argued that the defendant

had the potential for rehabilitation and could do produc-

tive work to benefit society while incarcerated, if his life

were spared. The parties stipulated that the trial court

could consider all the evidence presented at trial and all

matters presented to the court during the death penalty

hearing in reaching a sentencing decision. It is also ap-

parent from the record that the court was fully informed

on the defendant’s recent religious experiences while in-

carcerated during trial and before sentencing, since

three witnesses testified to the new emphasis of religion

in the defendant’s life and the sincerity with which he

held his beliefs. Also, the trial court considered the

presentence report and had evidence before it regard-

ing the defendant’s character, history and family re-

lationships, which were relevant factors to be taken

into account by the court in evaluating the defendant’s

potential for rehabilitation. The court considered the

above evidence during the hearing on the death penalty

when it determined not to impose capital punishment.

We are convinced that the court likewise considered and

evaluated the same evidence and arguments in support of

the defendant’s potential for rehabilitation during the

subsequent sentencing hearing itself.

—18d—

Furthermore, as our supreme court recently stated in

People v. Meeks (1980), 81 III. 2d 524, 534, “(t]he require-

ment that the trial judge set forth his reasons in the

record for the particular sentence imposed does not

obligate the judge to recite, and assign a value to, each

fact presented in evidence at the sentencing hearing.” An

analysis of the record in this case discloses the basis and

reasons which led to the sentencing determination. We

conclude the trial court sufficiently complied with the re-

quirements of the Unified Code of Corrections.

The defendant further argues that the sentence im-

posed by the trial court was excessive and therefore con-

stituted an abuse of discretion.

During the sentencing hearing, the trial court made

the following statement which is supported by the

evidence in this case:

“* * * [T)his particular murder reflects a cold,

calculated plan in which the defendant entered a

tavern, confronted the owner, whom he knew and

who knew him, threatened her with a gun, demand-

ed and took money, took her hostage from the tavern

in her own car, drove with her on the floor of the car

with a gun at her head past a prearranged point

from whence he was followed by his accomplice,

Mary Smith, to an isolated rural location where he

shot Clifty Davis at least four times and possibly five

times in the head. By his own statement, he indicates

that his first shot did not kill her and he then

proceeded to fire the remaining shots.”

We point out also that the defendant used a single-action

revolver which necessitated that he pe the hammer

back manually and squeeze the trigger before firing each

additional round. Mary Smith’s testimony at trial in-

dicated that the defendant was aware that the victim had

recognized him and that he shot her because she had

recognized him. While the evidence in this case may in-

dicate that the defendant had some potential for

rehabilitation, given the nature and seriousness of the

offense as well as the manner in which it was committed,

we conclude that the trial court struck a proper or equal

—19d—

balance between the factors of deterrence or punishment,

on the one hand, and rehabilitation on the other. (See Peo-

ple v. Waud (1977), 69 III. 2d 588, 596.) The sentence

reflects the gravity of the crime and gives sufficient con-

sideration to the defendant’s potential for rehabilitation.

Accordingly, the defendant has failed to demonstrate

that the trial court abused its discretion in imposing

sentence. People v. Cox (Docket No. 52793, Sept. Term

* i People v. Perruquet (1977), 68 III. 2d

We also reject the defendant's contention that, since the

trial court earlier found factors in mitigation sufficient to

preclude the imposition of the death penalty, these same

factors consequently required the court below to conclude

that a term of life imprisonment was likewise improper.

Given the singular nature of the death penalty, we

believe the trial court may properly view certain factors

as sufficiently mitigating so as to preclude the imposition

of the death nalty and at the same time find the same

factors insufficient to prevent the imposition of a term of

life imprisonment. In addition, we believe our recent

decision in People v. LaPointe (1980), 85 Ill.App.3d 215,

al allowed (1980), ...... IIl. 2d . , upon which the

defendant relies here, is distinguishable from the case at

bar. Unlike the 18-year-old defendant in LaPointe who

did not have a significant history of prior criminal activi-

4 who had never before engaged in violent conduct,

defendant in this case has a significant history of

prior criminal conduct, both as a juvenile and adult, has

previously committed crimes involving the use of violence

and has frequently displayed aggressive behavior. Nor do

we believe that the —— of the defendant’s history of

drug use and the conflicting evidence regarding his use

of drugs on the day of the murder warrants the conclu-

sion that the trial court abused its discretion in imposing

the natural life sentence. See People v. Nobles (1980), 83

Ill.App.2d 711, 717.

The defendant likewise maintains that section 5-8-1 of

the Unified Code of Corrections (I1].Rev.Stat. 1978 Supp.,

ch. 38, par. 1005-8-1) denies him due 71 and equal

protection of the law in violation of both the Federal and

—20d—

State constitutions. (U.S. Const., amends. V. XIV; III.

Const. 1970, art. I, §2.) At the outset it should be noted

that the defendant, as far as we can determine, has not

advanced any due process argument in his brief. Since

the defendant has failed to comply with the standards

fixed by Supreme Court Rule 341(eX7) (Ill. Rev. Stat.

1979, ch. 110A, par. 341(e\7)), he has waived this issue.

Hillblom v. Ivanesits (1979), 76 Ill.App.3d 306, 312-13;

People v. Jimerson (1979), 69 Ill.App.3d 408, 412-13.

With respect to the defendant’s equal protection claim,

he argues that he is being denied equal protection of the

law because he is among a class of offenders who are

sentenced to imprisonment without the possibility of

returning to society while all other noncapital offenders

= — to society. The defendant’s contention is un-

ounded.

In determining whether a legislative classification con-

travenes the equal protection clause, the classification is

. valid, and the party challenging it bears the

ur den of demonstrating its invalidity. (People v. McCabe

(1971), 49 III. 2d 338, 340.) The equal protection clause

does not deny the State the power to treat different

classes of persons in different ways. (People v. Bailey

(1980), 79 III. 2d 410, 416.) The State may use its power to

classify in the exercise of the police power without

violating the equal protection clause so long as there is a

reasonable and rational basis to justify the classification.

(People v. McCabe (1971), 49 III. 2d 388, 340-41; see People

v. Collins (1978), 57 Ill.App.38d 934, 398.) And the equal

133 clause recognizes that the legislature has a

road latitude and discretion in classifying. (People v.

McCabe (1971), 49 III. 2d 338, 341). It is also well es-

tablished that, once the legislature decides that an evil

exists and determines what measures are necessary to

discour or prevent it, the legislative enactment will

not be disturbed unless it manifestly contravenes a con-

stitutional limitation. People v. Houston (1976), 43 III.

App.3d 677, 681.

In are of the above criteria, we determine that a

rational basis exists to justify the imposition of the term

—21d—

of natural life imprisonment upon certain offenders

whose crimes are particularly heinous or brutal. We

believe the State has a legitimate right and need to

protect society, in a permanent way, against a class of

murderers who have demonstrated that they are capable

of committing acts indicative of wanton cruelty; and the

sentence of life imprisonment without the prospect of

future release is reasonably designed to remedy the evil.

Since individuals who perpetrate heinous murders form

a distinct class of offender, the State, in the reasonable

exercise of its police power, may classify and treat them

as a separate and distinct group. The defendant has

failed to establish the invalidity of section 5-8-1 of the

Unified Code of Corrections.

The defendant's final contention is that his sentence of

natural life imprisonment without the possibility of

future release is cruel and unusual punishment in viola-

tion of the eighth amendment to the United States Con-

stitution. (U.S. Const., amend. VIII.) We find this asser-

tion unpersuasive. Both the United States Supreme Court

(e. g., ee v. Georgia (1976), 428 U.S. 153, 49 L.Ed.2d

859, 96 S.Ct. 2909) and the Illinois Supreme Court (Peo-

= ex rel. Carey v. Cousins (1979), 77 III. 2d 531, 540-43)

ave rejected cruel and unusual punishment challenges

to the death penalty. The defendant makes no attempt in

his brief to inform the court why the sentence of natural

life imprisonment should be viewed as cruel and unusual

punishment when the death penalty, which differs from

all other types of sanctions in its finality, has been upheld

against eighth amendment challenges.

We also note that in Shick v. Reed (1974), 419 U.S. 256,

42 L.Ed.2d 430, 95 S.Ct. 379 the Supreme Court sus-

tained the commutation of a death sentence to life im-

prisonment without parole, stating that:

“The no-parole condition attached to the commuta-

tion of [petitioner’s] death sentence is similar to sanc-

tions imposed by legislatures such as mandatory

minimum sentences or statutes otherwise precluding

parole; it does not offend the Constitution.” (Emphasis

added.) (419 U.S. 256, 267, 42 L.Ed.2d 430, 439, 95

S.Ct. 379, 385.)

—22d—

Furthermore, numerous cases have upheld a sentence of

life imprisonment without parole against the challenge

that such a sanction constitutes cruel and unusual

unishment in contravention of the eighth amendment.

(Moore v. Cowan (6th Cir. 1977), 560 F.2d 1298, 1302-03,

cert. denied (1978), 435 U.S. 929, 55 L.Ed.2d 525, 98 S.Ct.

1500; McGinnis v. State (Ala.Crim.App. 1980), 382 So.2d

605, 608; State v. Farrow (1978), 118 N.H. 296, 386 A.2d

808, 812-13; State v. Dunlap (1979), 298 N.C. 725, 259

S.E.2d 893, 898-99; State v. Forrester (1978), 21

Wash.App. 855, 587 P.2d 179, 188-89.) The defendant has

not directed us to, nor have we found, any case which

holds that the imposition of a term of life imprisonment

for the offense of murder constitutes cruel and unusual

punishment. We conclude that the defendant’s term of

natural life imprisonment without the possibility of

future release does not constitute cruel and unusual

punishment.

For the foregoing reasons, the judgment of the trial

court is affirmed.

AFFIRMED.

NASH and WOODWARD, JJ., concur.