Opposition Brief — Illinois v. Hammock

‘ORIGINAL

No. 84-177

IN THE ALEDANDER |. STE. AG

CULAR

SUPREME COURT OF THE UNITED STATES eee a

OCTOBER TERM, 1984

PEOPLE OF THE STATE OF ILLINOIS,

Petitioner,

-VvSe-

JAMES HAMMOCK, JR

Respondent.

BRIEF OF RESPONDENT IN OPPOSITIO?

Ter

STEVEN CLARK

Deputy Defender

PATRICIA UNSINN

Assistant Appellate Defender

Office of the State Appellate Defender

109 North Dearborn Street

8th Floor

Chicago, Illinois 60¢€

(312) 793-547

COUNSEL FOR RESPONDENT.

i

TARLE OF CONTENTS

I. IT IS UNNECESSARY FOR THE CCUPRT TO GRAYT

A WRIT OF CERTIORARI TO DECIDE THE ISSUE

OF THE RETROACTIVITY OF EDWARDS V. ARIZONA

BECAUSE RESPONDENT IS ENTITLED TO SUPPRESSIOM:

rg Paes PURSUANT TO PRE-FDWARDS

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TI. CERTIORARI SHOULD NOT BE GRANTED SINCE THE

JUDGMENT iS SUPPORTED BY AN INDEPENDENT GROUYD

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TABLE OF AUTHORITIES

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

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

Michigan v. Mosley, 423 U.S. 96 (1975). ....ccececccceess

Solem v. Stumes, 79 L. Ed. 2d 579 (1984)......-.e0eeees

Maryland v. Baltimore Radio Show, 338 U.S. 914 (1949)..

People v. Medina, 71 Ill. 2d 254, 375 N.E. 2d 78

CLIIG) ccccccccccccccccccscscecesecesesesesesescceeees

Peo ie Vv. at ler, 61 I1l. “—- 3d 37, 377 W.E. 2d 838

8), aff'd, 76 111. 2d 289, 391 N.E.

24 366 (1979) TUTTITILILILIXTTTIT TTT

People v. Hammock, 121 I11. App. 3d 874, 460 N.E. 2d

st a Bebe renvdscoadecacacebéwewendsvesadue

No. 84-177

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1984

PEOPLE OF THE STATE OF ILLINOIS,

Petitioner,

-vs-

JAMES HAMMOCK, JR.,

Respondent.

BRIEF OF RESPONDENT IN OPPOSITION

TO PETITION FOR WRIT OF CERTIORARI

STATEMENT OF THE CASE

James Hammock, Jr. was charged and convicted of the murder

of Anthony Taylor. His defense at trial was self-defense. The

shooting occurred in a car parked in a liquor store parking lot.

The driver of the car testified he exited the car when a

“scuffle” started between Hammock, who was standing outside of

the car, and Taylor, who was seated in the back seat of the car,

and he observed Hammock “come out of his pocket” with a brown

object. (R. 603) The prosecution produced no actual eyewitness

to the shooting but introduced a videotape in which Hammock

described and demonstrated the events of the shooting to

Assistant State's Attorney Hartman.

Prior to trial Hammock moved to suppress that videotape as

evidence. He testified in support of the motion that he was

arrested by the Chicago police on June 23, 1978 for a traffic

offense and at that time told the police he would like to see his

lawyer. (R. 3,4) He was held at a police station for twelve

hours and then taken to the House of Correction where the next

day he was arrested by the Brookfield police on a homicide

charge. (R.4,5) When advised by those officers of his right to

counsel at the House of Correction, Hammock's uncontradicted

ale

testimony was that he told them that his people would have a

lawyer at the police station but that the lawyer probably could

not get out there until the following day because it was a Sunday

and he didn't think he could reach his lawyer on a Sunday. (R.

12)

Assistant State's Attorney Hartman testified that he sew

Hammock after he had been transported to the Brookfield police

station. He ascertained that Hammock had been advised of his

rights by the police and then readvised Hammock of his rights

himself. (R63) When he asked Hammock if he wanted to make a

statement, Hammock said he did not and that he wanted a lawyer.

Hartman asked him who his lawyer was and when Hammock mentioned

Mr. Blair, Hartman told him he could call Blair if he wanted to.

Hammock indicated he didn’t know the number. Hartman obtained

Blair's number for Hammock. (R. 65) Hammock commented that he

had been treated like a man and he had expected rough treatment.

Hartman told him there was no reason to expect that, that it

wesn't supposed to be done. Hartman testified Hammock said,

"I'll tell you what happened.” Hartman asked him if he wanted to

have his lawyer present and Hammock said, "No, I'11 tell you what

happened right now.” (R. 66) However, Hammock testified he made

a statement because the prosecutor led him to believe he was

friendly with his lawyer and he would most likely get probation.

(R. 33, 44)

The trial court denied Hammock's motion tc suppress but the

Appellate Court reversed on the ground that the statement had

been obtained in violation of Hammock's fifth amendment right to

have counsel present during interrogation and because the prose-

cution had failed to preserve and produce a videotape on which

Hammock's initial statement had been recorded.

SUMMARY OF ARGUMENT

This is not an appropriate case to decide the question left

unresolved in Solem v. Stumes, 79 L. Ed. 2d 579 (1974), i.e.,

whether the rule pronounced in Edwards v. Arizona, 451 U.S. 477

(1981) should be applied to cases which were not yet final when

Edwards was decided, because respondent was entitled to

ofe

suppression of the videotape under pre-Edwards case law,

petitioner contends no Edwards violation occurred, and the Appel-

late Court ruled that the statement should have been suppressed

for reasons independent of the Edwards violation, which have not

been cuestioned by petitioner in this Court.

ARGUMEN1

I. IT IS UNNECESSARY FOR THIS COURT TO GRANT A WRIT OF

CERTICRARI TO DECIDE THE ISSUE OF THE RETROACTIVITY OF

EDWARDS V. ARIZONA, BECAUSE RESPONDENT IS ENTITLED TO SUPPRES-

SION OF THE VIDEOTAPE PURSUANT TO PRE-EDWARDS CASE

LAW.

In Miranda v. Arizona, 384 U.S. 436 (1966) this Court held

that if an individual, after having been advised of his rights,

states he wants an attorney, the interrogation must cease until

an attorney if present. If the individual cannot obtain an

attorney and indicates that he wants one before speaking with the

police, they must respect his decision to remain silent. If the

interrogation continues without the presence of an attorney and a

statement is taken, a heavy burden rests on the government to

demonstrate that the defendant knowingly and intelligently waived

his privilege against self-incrimination ard his right to

retained or appointed counsel 384 U.S. 474, 475. Respondent

submits that application of these principles to the facts of the

case at bar leads to the conclusion that the videotape should

have been suppressed and thus it is inappropriate and unnecessary

for this Court to grant a writ of certiorari to decide whether

respondent was entitled to relief pursuant to Edwards v. Arizona,

451 U.S. 477 (1981).

While expressly noting in Michigan v. Mosely, 423 U.S. 96,

‘103 n. 10 (1975) that the procedural safeguards triggered by a

request to remain silent and a request for an attornev are

different, this Court held in Solem v. Stumes, 79 L. Ed. 2d 579,

590 (1984) that much of the logic and language of Mosely could be

applied to invocation of the right to counsel. In Mosely,

defendant was arrested for robbery and, upon being advised of his

Miranda warnings, exercised his right to remain silent.

= ———ee — — —E EEE, a — —

Interrogation ceased immediately and defendant was taken to a

cell. A few hours later a different officer removed defendant

from the cell and questioned him regarding an unrelated homicide

after advising defendant of his rights. Defendant did not assert

during this interrogation that he desired to consult with counsel

or indicate he did not want to discuss the homicide. This Court

stated that the admissibility of defendant's statement so

obtained depends on whether his right to cut off questioning was

“scrupulously honored" and concluded it had been because the

first officer had immediately ceased interrogation upon being

advised that defendant did not want to be questioned and made no

attempt to resume questioning, after a significant time interval

defendant was questioned by a different officer about an unrelat-

ed offense, and prior to that second interrogation defendant was

fully advised of his rights and chose not to exercise them. The

fact that the police had not failed to honor defendant's decision

to remain silent by refusing to discontinue the interrogation

upon request or by persisting in repeated efforts to wear down

his resistance and make him change his mind was found to be

significant. 423 U.S. 105, 106.

By contrast, in the case at bar the facts demonstrate that

the prosecution did not scrupulously honor respondent's invoca-

tion of his right to counsel but persisted in repeated efforts to

wear down his resistance and make him change his mind. Respon-

dent had advised both the Chicago and Brookfield police of his

desire for counsel. After invoking his right to counsel when

given the warnings by the Brookfield police, those officers took

respondent into their custody from the House of Correction and

transported him to the Brookfield police station where he was

confronted by Assistant State's Attorney Hartman. There is no

evidence of any significant time lapse between respondent's

exercise of his right to counsel and his interrogation by

Hartman. The prosecution was aware that respondent wanted

counsel present prior to any questioning and that respondent did

not believe it possible that he could contact his counsel on that

day, a Sunday, yet Hartman initiated an interview with

respondent. Respondent was not questioned about a separate

~

unrelated crime but for the same offense for which he had been

arrested by the Brookfield police and regarding which he had

declined to make a statement without counsel. As the Illinois

Appellate Court noted, the ploy was to have an array of

personalities repeat the Miranda warnings to respondent until he

had a different reaction to a particular, perhaps more

sophisticated interrogator and agreed to make a statement. 460

N.E. 2d 382. It would indeed be ironic if the prosecution were

permitted to use their duty to advise an accused of his rights to

engage in the kind of psychological persuasion the warnings were

intended to eliminate.

Decisions of the Illinois Supreme Court support the conclu-

sion that respondent's statement would have been held inadmissi-

ble prior to this Court's decision in Edwards. See People v.

Medina, 71 Ill. 2d 254, 375 N.E. 2d 78 (1978) (statement

suppressed where defendant arrested between 2 and 3:00 a.m.,

taken to a police station and advised of his rights; defendant

asked for an attorney and interrogation ceased until 8:00 a.m.

when defendant interrogated by another officer and made a

statement); People v. Washington, 68 Ill. 2d 186, 369 N.E. 2d 57

(1977) (defendant arrested at 9:00 p.m., advised of his rights

and made statement; at 1:00 a.m. placed in a cell and when

advised of rights at 9:30 a.m. asked for counsel but his attempts

to reach counsel were unsuccessful; at 5:30 p.m. he was advised

of his rights and said he did not want to make a statement but

wanted to talk to a priest and psychiatrist; after talking with

the police chaplain defendant made a statement after stating he

understood his rights; statement held inadmissible); People v.

Taylor, 61 111. App. 3d 37, 377 N.E. 2d 838 (2nd Dist. 1978),

aff'd, 76 Ill. 2d 289, 391 N.E. 2d 366 (1979) (statement made by

defendant on day after requests for counsel ignored held

inadmissible even though defendant did not request counsel after

being advised of his rights before giving statement).

Curiously, while asking this Court to grant a writ of

certiorari to decide whether Edwards should have any retrospec-

tive application, the petitioner devotes a large portion of its

argument to the contention that no Edwards violation occurred.

ate

(Petition, pp. 9, 10) It appears anomolous for petitioner to ask

this Court to take this case to decide a question which it does

not contend is presented by the facts of the case. The petition-

er's position, that even were Edwards applied retrospectively to

cases on direct review respondent is entitled to no relief from

his conviction, should persuade this Court that the present case

is not an appropriate one to decide the sole question posed by

petitioner.

II. CERTIORARI SHOULD NOT BE GRANTED SINCE THE JUDGMENT IS

SUPPORTED BY AN INDEPENDENT GROUND OF STATE LAW.

If a decision of a state court can be sustained on an

independent ground of state law, it is not subject to review by

this Court even though the court also passed on issues of federal

law. Maryland v. Baltimore Radio Show, 338 U.S. 912, 918 (1949).

The Illinois Appellate Court reversed respondent's conviction and

remanded for a new trial on the ground that respondent's video-

taped statement and demonstration was erroneously admitted. It

found the admission erroneous not only because the statement was

obtained in violation of respondent's fifth amendment right to

have counsel present at the interrogation but beceuse the

prosecution failed to produce the first videotape which had been

requested by defense counsel. People v. Hammock, 121 I11l. App.

3d 874, 460 N.E. 2d 378,384 (lst Dist. 1984). The Appellate

Court relied on no provision of federal law or the Constitution

to support this result. Petitioner has not sought review of this

portion of the Appellate Court's decision in this Court. Even if

this Court would agree that the videotape was not subject to

suppression pursuant to Edwards, respondent would nonetheless be

entitled to the relief awarded by the Appellate Court on an

alternative ground.

CONCLUSION

Respondent, James Hammock, Jr., prays that this Court deny

the petition for writ of certiorari to the Appellate Court of

Illinois, First District.

Respectfully submitted,

STEVEN CLARK

Assistant Appellate Defender

PATRICIA UNSINN

Assistant Appellate Defender

Office of the State Appellate Defender

109 North Dearborn Street

8th Floor

Chicago, Illinois 60602

(312) 793-5472

COUNSEL FOR DEFENDANT-APPELLANT

ite