Petition — WILLIAMS v. ILLINOIS (No. 83-5785)

Supreme Court brief1983

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RECEHVED-

No. NOV 21 1883

IN THE OFFICE OF THE CLERK

SUPREME COURT, U.S.

. SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1983

HERNANDO WILLIAMS,

Petitioner,

-vVs-

PEOPLE OF THE STATE OF ILLINOIS,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO

—“THE SUPREME COURT OF ILLINOIS

STEVEN CLARK

Deputy Defender

KENNETH L. JONES

Assistant Appellate Defender

Office of the State Appellate Defender

109 North Dearborn Street

8th Floor

Chicago, Illinois 60602

(312) 793-5472

COUNSEL FOR PETITIONER

Of Counsel:

Sheldon . irt Nagelberg

QUESTION PRESENTED FOR REVIEW

1. Whether a capital defendant's right to a jury, as guaranteed

by the Sixth and Fourteenth Amendments to the United States

Constitution is violated by the prosecution's use of peremptory

challenges to exclude racial minorities.

2. Whether State evidentiary rules of waiver can properly be

applied to a capital defendant's right to a jury selected from a

cross-section of the community as required by the Sixth and

Fourteenth Amendment under the holding in Witherspoon v.

Illinois, 391 U.S. 510 (1968).

3. Whether a capital sentencing statute that vests unreviewable

discretion in the prosecution following conviction, offers the

sentencing authority no meaningful standards and where the state

supreme court has explicitly rejected comparison review is

compatible with the due process clause of the Fourteenth

Amendment and the prohibition against cruel and unusual

punishment.

4, Whether the inconsistent application of a statutory

aggravating factor which potentially renders all murders capital

offenses deprived Hernando Williams of his rights under the Sixth

and Fourteenth Amendments.

5. Whether the record in this case establishes that petitioner's

pleas of guilty do not comport with due process where at no time

during the plea proceedings was petitioner informed that his

pleas would subject him to the same penalties he would receive if

he were tried and convicted; and no clear affirmative notice was

given by the prosecution that the death penalty would be sought

if Petitioner plead guiltv.

TABLE OF CONTENTS

Questions Presented for Review.......... A Pe Ae Ae yee a6 i

Whether a capital defendant's right to a jury,

as guaranteed by a cross-section of the community as

guaranteed by the Sixth end Fourteenth Amendments to

the United States Constitution is violated by the

prosecution's use of peremptory challenges to exclude

racial minorities.

Whether State evidentiary rules of waiver can

properly be applied to a capital deferdant's right to

a jury selected from a cross-section of the community

as required by the Sixth and Fourteenth Amendment under

the holding in Witherspoon v. Illinois, 391 U.S. 510

(1968).

Whether a capital sentencing statute that vests

unreviewable discretion in the prosecution following

conviction, provides no requirement for pre-trial notice,

offers the sentencing authority ne meaningful standards

and where the state supreme court has explicitly rejected

comparison review is compatible with the due process

clause of the Fourteenth Amendment and the prohibition

against cruel and unusual punishment.

Whether the inconsistent application of a statutory

aggravating factor which potentially renders ali murders

capital offenses deprived Hernando Williams of his rights

under the Eight and Fourteenth Amendments.

Whether the record in this case establishes that

petitioner's pleas of guilty do not comport with cue

process where at no time during the plea proceedings

vas petitioner informed that his pleas would subject

him to the same penalties he would receive if he were

tried and convicted; and no clear affirmative notice

was given by the prosecution that the death penalty

would be sought if Petitioner plead guilty.

EE SS Ee ee i a ee eb ; , &

Table of Authorities.......... Se re Vv

I EE re ye ee ]

Opinions Below.......... ee PTT TUTTLE ReTETETe soee 1

Statement of Jurisdiction........ ee ek a eb bs ee ree

Constitutional ProvisionemInvol ved... .cccccccccccccccecce

Pho

Staten: 65 Cae GOOG ss. osc cwee be eae eee eee eee 3

The Manner in Which the Federal Constitutional Claim

We as 6 5b wk Oe Re ORES ee eee eee eee &

Reasons for Allowance of the Writ

I. HERNANDO WILLIAMS' RIGHT TO A JURY DRAWN FROM

CROSS-SECTION OF THE COMMUNITY AS GUARANTEED BY

THE SIXTH AND FOURTEENTH AMENDMENTS TO THE

UNITED STATES CONSTITUTION WAS VIOLATED BY THE

PROSECUTOR'S USE OF PEREMPTORY CHALLENGES TO

EXCLUDE RACIAL MINORITIES FROM THE JURY WHICH

JLTIMATELY IMPOSED THE DEATH PENALTY ON MR.

WILLIAMS. ALTERNATIVELY IN LIGHT OF THE ON-

GOING HISTORY OF RACIALLY MOTIVATED USE BY

PROSECUTORS IN COOK COUNTY OR PEREMPTORY

CHALLENGES, AS Rees .see BY AT LEAST ONE

ILLINOIS SUPREME COURT JUSTICE AND ONE DIVISION

OF THE STATE APPELLATE COURT, THIS CAUSE SHOULD

BE REMANDED TO THE STATE TRIAL COURT FOR A

EVIDENTIARY HEARING IN LINE WITH THE HOLDIN

IN SWAIN V. ALABAMA, 380 U.S. 202 (1965)

A. HERNANDO WILLIAMS' RIGHT TO BE TRIED

A JURY DRAWN FROM A CROSS-SECTION OF THE

a gern WAS VIOLATED BY TEE PROSECUTOR'S

TBERATF. EXCLUSION OF AJ.L BLACKS FROM THE

B. WHERE AT LEAST ONE JUSTICE OF THE

ILLINOIS SUPREME COURT AND ONE DIVISION OF

THE ILLINOIS APPELLATE COURT HAVE RECOGNIZED

THE EXISTENCE OF "AN OPEN SECRET" THAT

PROSECUTORS IN CHICAGO AND ELSEWHERE HAVE

HISTORICALLY AND SYSMATICALLY USED PERElMPTORY

CHALLE‘SGES TO REMOVE ALI OR ALL BUT TOKEN

BLACKS FROM JURIES IN CRIMINAL CASES WITH BLACK

DEFENDANTS, PETITIONER WILLIAMS IS ENTITLED

TO A HEARING ON THIS ISSUE UNDER THE GUIDELINES

OF SWAIN V. ALABAMA, 380 U.S. 202 (1965)......... 12

II. HERNANDO WILLAIMS' SIXTF AMENDMENT RIGHT TO

A JURY DRAW! FROM A CROSS-SECTION OF THE

COMMUNITY WAS VIOLATED BY THE EXCLUSION OF

JURORS WITH SCRUPLES AGAINST THE DEANT PENALTY.

IN AFFIRMING THE SENTENCES OF DEATH IMPOSED

UPON WILLIAMS THE ILLINOIS SUPREME COURT

ERRED BY MISAPPLYING STATE EVIDENTIARY WAIVER

RULES TO A SIXTE AMENDMENT ISSUE.........cc000. 17

Ill.

IV.

Conclusion

Appendix A

Opinion of the Illinois Supreme Court

THE ILLINOIS DEATH ACT BOTH ON ITS FACE AND AS

APPLIED AGAINST HERNANDO WILLIAMS IS VIOLATIVE

OF TRE EIGHTH AND FOURTEENTH AMENDMENTS TO THE

UNITED STATES CONSTITUTION. .......ccccccccesees 22

A. THE ILLINOIS DEATH ACT, BY VESTING TOTAL

DISCRETION IN THE PROSECUTORS AS TO WHO?

SHALL BE SUBJECT TO THE DEATH PENALTY

ENSURES THAT CAPITAL PUNISHMENT WILL BE

INFLICTED IN A FREAKISH MANNER IN VIOLATION

OF THE EIGHTH AND FOURTEENTH AMENDMENTS TO

THE UNITED STATES CONSTITUTION............ 22

B. THE ILLINOIS DEATH ACT VIOLATES THE EIGHTH

AND FOURTEENTH AMENDMENT IN THAT IT PROVIDES

NO DEFINED LIMITS ON THE FACTORS WHICH MAY

BE CONSIDERED BY THE SENTENCING AUTHORITY,

NOR DOES IT ALLOCATE A BURDEN OF PROOF AS

TO THE ULTIMATE ISSUE.......cccccccccccees 25

C. THE ILLINOIS DEATH SENTENCING SCHEME FAILS

TO PROVIDE ADEQUATE COMPARATIVE REVIEW

PROCEDURES TO INSURE THAT THE DEATH PENALTY

IS NOT IMPOSED IN AN ARBITRARY OR DISPRO-

PORTIONATE MANNER... ..ccccccccccccsccceveecs 28

HERNANDO WILLIAMS’ RIGHT TO DUF PROVESS AND TO BE

PROTECTED FROM CRUEL AND UNUSUAL PUNISHMENT WERE

VIOLATED BY THE APPLICATION OF AN AGGRAVATING FACTOR

THAT POTENTIALLY RENDERS ALL HOMICIDES CAPITAL

GREBMOEE soccer ccccccccccesseseeesassesveseseses 30

SINCE ONLY THE PROSFCUTORS COULD DETERMINE WHETHER

OR NOT THE DEATH PENALTY WOULD BE SOUGHT AGAINST

HERNANDO WILLIAMS FIS RIGHTS TO DUE PROCESS WERE

VIOLATED WHEN THE COURT ACCEPTED HIS PLEA OR GUILTY

WITHOUT INFORMING WILLIAMS THAT EVEN A CONVICTION

BY PLEA OF GUILTY WOULD SUBJECT HIM TO THE STATE'S

ATTORNEY DISCRETIONARY ELECTION TO SEEK THF DEATH

yi hs Sere rrrrrrrr er TT rererererrrer yr Tre 32

Appendix B.

Order Denying Rehearing

TABLE OF AUTHORITIES

CASES

Bdome vw. Tanase, S666 U.8. 38 (19SG) .cccevsecsvecccsess

Barclay v. Florida, U.S. 77 L. Ed. 2d

Po > Me. 5) PPR eer on ee) ee Fe

Bass v. Estelle, 696 F. 2d 1154 (Sth Cir., 1983)....

Bovkin v. Alabama, 395 U.S. 238 (1969).......ccecee.

Burns v. Estelle, 592 F. 2d 1297 (5th Cir., 1979)...

Burns v. State, 556 S.W. 2d 270 (Tx. Crim. App.

Brady v. United States, 397 US. 74? ei gt } Pee

California v. Lanphear, 449 U.S. 810 (1980).........

Celifornia v. Velasquez, 448 U.S. 903 (1980)........

Commonwealth v. Sources, 377 Mass. 593, 387 N.E.

We) ee, rer eer eee ee ee ee

Davis v. Georgia, 492 U.S. 122 (1977). .ccceccccccces

Furman v. Georgia, 408 U.S. 238 (1972)..............

Granviel v. Estelle, 655 F. 2d 673 (5th Cir., 1981).

Gilliard v. Mississippi, U.S. » 34 Cr. L

SERS CAPES Sb evereccennsaceceeccteusvsessecsacene

Godfrey v. Georgia, 446 U.S. 420, (1981)............

Grege v. Georgia, 428 U.S. 153 (1976)...............

Hardy v. State, 2456, 272, 264 N.E. 2d 209 (1980)...

Harris v. Pulley, 692 F. 2d 1189 (9th Cir., 1982)

Cert granted sub nom Pulloy v. Harris,

e.. CEOEOGD CEOWSE coh ec avec nevseceseesesseseevence

In re Winship, 397 U.S. 358 (1970)......cceeeeeeeeee

May v. State, 618 S.W. 2d 33 (Tx. Crim. App. 1980)..

May v. Texas, 454 U.8. 959 (C1I9GL) .cccccccccccccecees

McCorquodale v. Balkcom, 705 P. 2d 1553 (llth

PAGE

17,19,20

224at ae

DENS y BUMP P Son seRR Sore ceveseesceseseisenesesseneos 20

McCray v. New York, U.S. , 33 Lr. 4067

REPO P eee eh eee se eser ses eebeceseeenseeseceeeeeeesens 10

People ex rel. Carey v. Cousins, 77 Ill. 2d 531, 397

ee Be OEP CEPT P Perec cccboscccccvcsccicvessosevere ae gas

People v. Brontes, (Il11. App. 4th Dist., #16274).... 24

People v. Brownell, 79 Ill. 2d 508, 404 N.F. 2d

ret Pc crease deuhedetaesk4sdaeecne ees 28,29,30,31

People v. Brownell, Tll. 2d _—, 449 N.E. 2d

STB tate. cn pce ee Sense ek Skt es 652060062 28,29

People v. Cole, 54 I11l. 2d 401, 298 N.E. 2d 705

DEUCE SARAGGCOR POSED DEb SCO ORCS ESR OCe GED ESO oeO ER ECS 21

Feope v. Davis, 95

Ill. 2¢ 1, 447 N.E. 24 353

People v. Eddington, 77 Ill. 2d 41, 394 N.E. 2d

Eb ee ee eke smabeaee-eu’ 31

People v. Gosberry, Ill. 2¢ » 449 N.E. 2d

ETS DRT SE WEG 466 06-0844.206 600% reTeTUTE UC ETT Tere 15

People v. Groth, (Ciz Crt Sangamon Co. #70-CF-702).. 24

People v. Hicks, (Ill. App. 4th Dist., #16674)...... 24

People v. Kirkpatrick, 70 Ill. App. 3d 166, 387 N.E.

7 1284 CTS 78) PRARECEHRSUESEED SOS HOODOO ESCO OSES 24

People v. Lanphear,

2) D Pr ee

People v. LaPointe,

F988 (LISI) oc ccee

26 Cai. 3d 814, 608 P. 2d 689

88 Ill. 2d 482, 431 N.E. 3d

People v. LeCrone, Ill. App. ; N.E.

COEM DISS.» LIST) accccccccvescscccccvessscsccecese

People v. Lewis, (I11. App. 4th Dist., #16273)......

People v. Lewis, 88 Ill. 2d 129, 430 N.E. 2d 1346

4. | > PPP Pe eeTTEPPET Terror TeLireelrerere re

People v. Nesbit, (Cir., Crt, Sangamon

- Me 2: ree ee errr eee ee ee ee

People v. Payne, 106 Ill. App. 3d 1034 435 N.E. 2d

al EGFeeeeeeSoSSeSesseesSSSSesessessSeeeseeeeseseser

People v. Peeples, (Ill. App. 4th Dist., #16759).... 24

People v. Szabo, 94 Ill. 2d 327 447 N.E. 2d 193

PEELE 6 6a 40.co6 6s 0000040 6666's 666 06 6460 66R Ebb E002 6-8 19,20

26 Cal. 3d 425, 660 P. 2¢

SER OES6O4 04656040 6646004 000 00500400054 19

People v. Wheeler, 22 Cal. 3d 258, 583 P. 2d 748

CUE Wa 6006 bb b4OS0.066 666 5506060004 2 OTRO OAKES 6808 11

People v. Withers, _ Ill. App. 3d __, 450 N.E.

Dl REE aA Ek 0.04% 6668 8640002 46.660566006 6 OSCR ROBES 1]

State v. Crespin, 94 N.M. 486, 612 P. 2d 716 (1980). 1]

State v. Wigglesworth, 18 Ohio St. 2d i7i, 248

Y. Tec peUEGREES OES ON ER EOC EH CESAR EGNOES 19,20

Swain v. Alabama, 380 U.S. 202 (1965)........... 30. 44,82 s40c0O0a7

Tavior v. Lowtiesionsa, 619 U.8. 322 Cl97S) «ccccccceces 10

Town of Cicero v. Industrial Commission, 404 I1l.

SOl sy GP BuBd 2 SHO CEPSEP ce ccceccesacecccvecseanes 18

United States v. Carter, 528 F. 2¢ 844 (8th Cir.,

LEtSE GE Gs GEE GES UVsbc POhe cess eescsccecesac's 1]

United States v. Childres, F. 2d , ad Cri

Cee CAPET bute b ChE eC RENE Ob 06600 5040526008 20 6a-08 11

Wainwright v. Sykes, 433 U.S. 72 (1978)............. 20

Weteus ©, Alebame, 369 U.8. FSS CiPOl ec ccsssssececes se)

Wigglesworth v. Ohic, 403 U.S. 947 (1971)........... 19,10,11

Witherspoon v. Illinois, 391 U.S. 510 (1968)........ 17,18,10,21

Woodson v. North Carolina, 428 U.S. 280 (1976)...... 27

Zant v. stephans, U.S. 77 L. Ed. 2d 235 (1983)...... 26

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1983

HERNANDO

WILLIAMS,

Petitioner,

-VS-

PEOPLE OF THE STATF OF ILLINOIS,

Respondent.

INTRODUCT IO?

TO THE CHIEF JUSTICES AND ASSOCIATES JUSTICES OF THE SUPREME

COURT OF THE UNITED

STATES :

Mav It Please The Court:

Hernando Williams, petitioner, respectfully prays that a

writ of certiorari issue to review the decision of the Supreme

Court of Illinois affirming his convictions and the sentence of

death following his pleas of guilty to murder, armed robbery,

rape and aggravated kidnapping.

OPINIONS BELOW

The opinion of the Illinois Supreme Court is (unreported).

A copy of the opinion appears as Appendix A. The Order Denying

Rehearing is in Appendix B.

STATEMENT OF JURISDICTION

This court's jurisdiction is invoked pursuant to 28 U.S.C.

1257(3). The opinion of the Supreme Court of Illinois was filed

on May 27, 1983. A timely petition for rehearing was filed and

subsequently denied on September 30, 1983. This petition is

being filed within sixty days of the denial of the rehearing.

CONSTITUTIONAL PROVISIONS INVOLVED

United States Constitution

Article 6, Clause 2

This constitution, and the law of the United States which

shall be made in pursuant thereof, and of all treaties made, or

which shall be made, under the authority of the United States,

shall be the supreme law of the land; and the judges in every

State shall be bound thereby, anything in the constitution or

laws of any State to the contrary notwithstanding.

AMENDMENT VI

In all criminal prosecutions, the accused shall enjoy the

right to a speedy and public trial, by an impartial jury of the

State and district wherein the crime shall have been cormitted,

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.

AMENDMENT VIII.

Excessive bail shall not be required, nor excessive fines

imposed, nor cruel and unusual punishments inflicted.

AMENDMENT XIV

Section 1. All persons born or naturalized in the United

States, and subject to the jurisdiction thereof, are citizens of

the United States and of the State wherein they reside. No State

itn

shall make or enforce any law which shall abridge the privileges

or immunities of citizens of the United States; nor shall any

State deprive any person of life, liberty, or property without

due process of law; nor deny to any person within its

jurisdiction the equal protection of laws.

STATEMENT OF THE CASE

On April 3, 1978, Petitioner, Hernando Williams was charged

by indictment with murder, armed robbery, rape and aggravated

kidnapping in the Circuit Court of Cook County, Illinois. On

July 20, 1978 the defense filed a motion asking the State to

disclose whether or not they intended to seek the death penalty

and if so what statutory aggravating factors would be relied

upon. (R. 146)”

The motion for disclosure was entered and continued to

August 11, 1978 at which time the state filed a written answer

asserting the position that under the Illinois Death Act they

were not required to disclose prior to trial an intent to seek

the death penalty. (R. 153)

On March 1, 1979 a motion challenging the Constitutionality

of the Illinois Death Act was filed. On August 29th argument was

held on this motion. (R. 1018-1027) On October 9, 1979 Hernando

Williams entered pleas of guilty to all the counts of the

indictment. (R. 88) Prior to formally accepting the plea of

guilty, the court advised Williams as to the consequences of his

plea, stating:

I must advise vou further that you can be

tried before this court or before a jury.

If you are found guilty of murder, under the

circumstances of which case the death penalty

could be imposed.

(R) References will be to the pages in the transcript prior to

Mr. Williams’ plea of guilty. (H) references will be to the

report of proceedings starting with the plea and including the

sentencing hearing.

oSe

I must also advise you in addition to the

possibility of the death penalty under the

Code as it exists in the State of Illinois, is

a further provision for the imposition of

sentence for the crime of murder wherein it is

provided the minimum term to be imposed shall be

not less than 20 years not more than 40 years.

If the Court finds that the murder again was

accompanied by exceptionally brutal or heinous

behavior indicative of wanton cruelty or if any

of the aggravating factors listed in the Code

proper were found to be present, the Court may

sentence the defendant to a term of natural

life imprisonment. (H. 10-13)

Following the court's acceptance of Mr. Williams’ pleas, the

prosecution moved that the case be recessed, since no decision

had been made as to whether or not the state would seek the death

penalty and that such decision would have to be cleared by the

trial prosecutors’ “superiors” (F. 63) When the case was

recalled that afternoon the state requested a death penalty

hearing. (H. 68-69) The case was continued to October 15, 1979.

(H. 75)

On that date, Hernando Williams, a black man, elected a jurv

for his -entencing authority. {H. 93) The court denied the

previously filed defense defense motion challenging the

constitutionally of the Death Act. (H. 99) Jury selection

commenced on October 16, 1979. (H. 116, 153)

Of the 128 prospective jurors examined during voir dire, 28

were black. Of these two were excused for cause on motion of the

defense. One had already formed the opinion that Williams should

be executed and the other took part in the investigation of the

case. A total of 15 black jurors were excused for cause on the

State's motion. (H. 6341) Elever of the 20 peremptory

challenges used by the State were directed at blacks, 8 during

the selection of the actual jury, and 3 to remove all blacks

alternates.

During the voir dire examinations the defense identified

each juror by race and when the State's pattern of racial

-G=

exclusion became apparent, brought the matter to the court's

attention. (H. 2005) The issue was formally raised in a written

motion to dismiss the jury (H. 6341) which was denied after

argument. (H. 3170) The State offered no justification and the

court failed to require any justification for the prosecution's

use of peremptory challenres against blacks.

During jury selection, the state moved to excuse for cause

numerous jurors who voiced scruples against the death penalty.

Among these was Delores Hudson whose relevant voir dire

examination was excerpted in the Illinois Supreme Court's

opinion:

Q. [D]Jo you have any questions you have to

ask me, at this point, about the procedure

about what we are about - about what's going

to happen in the situation, if you are selected

as a juror?

A. Not really, but I would like to say one thing,

and I don't know if I has a right to ask, but I

have a feeling about the electric chair.

Q. What feelings do you have?

A. I don't like it.

O. You don't like the electric chair. Miss Hudson,

do you feel that in certain cases - or can you con-

ceive of the situation where the death penalty would

be an appropriate punishment?

AK, I- I- I- was always taught thou shall not kill,

and I would feel, you know, I would sit there arc -

no matter what this person done, you know, to me, and

I will sit there and write down that the death penalty,

and I don't believe in it, you know, killing anybody,

and that would be a burden on me, that my vote was in

there to do this action, and I don't believe in it,

you know.

Q. Well, let me ask you this.

[Prosecutor]: Cause.

[Defense Counsel]: May I -

[Prosecutor]: Motion for cause.

THE COURT: Motion for cause is overruled.

Counsel, there is a motion for cause.

Q. I am going to try and complete the question, if

I am able to.

The State is going to be seeking the death penalty

against my client. Would you be able to wait and

listen to here [sic] all the evidence before you

make your decision on whether or not the death penalty

should be applied?

[Prosecutor]: Object.

THE COURT: She may answer.

A. THE *'’ROR: Well, just like I told you, I don't

believe .n the death chair, so -

[Defense Counsel]: I have no further questions,

Judge.

THE COURT: You may step down, ma'am. Thank vou.

(Juror is excused): (Opinion p. 20-21)

At the conclusion of the initial stage of the death penalty

hearing, Mr. Williams was found eligible for the death penalty

based on two statutory aggravating factors. The first of these

was that he had committed a murder during the commission of the

various felonies, (H. 4173) See Ill. Rev. Stat., Ch. 38, Sec.

9-1(b)(6). The second factor found was that the victim was

"material witness" against petitioner Section 9-1(b).7>

At the conclusion of the second phase of the sentencing

hearing the jury was instructed to consider the eggravating

factors they had perviously found, as well as all other

non-statutory factors. The jury returned verdicts directing the

court to sentence Hernando Williams to death. (H. 5510)

Subsequently this sentence was imposed upon Mr. Williams with the

court stating on the record that by the terms of the Illinois

statute it was bound by the jury's verdict. (H. 5558)

The defendant committed the murder with intent to prevent the

murdered individual from testifying in any criminal prosecution

or giving material assistance to the State in any investigation

or prosecution, either against the defendant or another; or the

defendant committed the murder because the murdered individual

was a witness in any prosecution or gave material assistance to

the State in any investigation or prosecution, either against the

defendant or another.

sis

Counsel independent of the Cook County Public Defender which

had represented Hernando Williams at the plea and sentencing

hearing were appointed to prosecute a motion to vacate the pleas

of guilty. The motion was denied and the case appealed to the

Illinois Supreme Court.

In affirming Hernando Williams' conviction and the sentence

of death, the Illinois Supreme Court implicitly accepted the

racial motivation for the state's use of peremptory challenges,

and based its affirmance on the holding in Swain v. Alabama, 380

U.S. 202, (1965) that the exclusion of prospective jurors because

of race became a Constitutional violation only when it is shown

to exist in "case after case". In his brief, petitioner provided

the court with stetistics gathered by the Illinois Coalition

Against the Death Penalty and argued that these statistics

supported a conclusion that the Swain test had been satisfied.

The court pointed out certain deficiencies in the statistics and

noted that they had not been presented to the trial court.

(Opinion, p. 10)

Cn rehearing Petitioner pointed out that Williams' case was

an appeal from a mction to vacate guilty plea anc argued that the

case could be remanded for a hearing on the Swain issue. The

rehearing was denied without comment. (See Appendix B)

As to the exclusion of Delores Hudson, the court apparently

concluded that the record did not establish that she qualified

for exclusion under the standard of Witherspoon v. Illinois, 391

U.S. 510 (1968) but that the error of her exclusion had been

waived because defense counsel voiced the wrong objection.

(Opinion p.21) The Court's only authority for this holding was a

state case dealing with an evidentiary issue. Town of Cicero v.

Industrial Com., 404 Ill. 487, 89 N.E. 2d 354 (1950)

The court aiso rejected Petitioner's arguments concerning

the validity of the Illinois Death Act. Citing its previous

decisions on the issue and specifically rejected the argument

that comparison review was necessary in capital cases. (Opinion

p. 2-3)

THE MANNER IN WHICH THE CONSTITUTIONAL CLAIMS WERE RAISED

The State's racially motivated use of peremptory challenges

was brought to the trial court's attention prior to the

completion of the jury selection process. (HK. 2005) It wes

formally raised in a written motion to dismiss the jury. (H.

3170. 6341) It was also presented in the written motion to

vacate the plea of guilty and briefed before the Illinois Supreme

Court. (Opinion p. 10)

The exclusion of Delores Hudson in violation of the holding

in Witherspoon v. Illinois was raised before the trial court by

the following defense objection:

Mr. Nudelman: I want to make a record of some-

thing. For the purposes of the record, Judge

we are...Again, Mrs. Hudson was excused over our

objections, Judge. We do not feel we had a

sufficient opportunity to go into proper witness

questioning and I am making the objection." (H.

2410-11)

The improper exclusion of scruppled jurors under the

guidelines of Witherspoon was raised in the motion to vacate and

briefed before the State Supreme Court. (Opinion p. 15-23)

The constitutionality of the Illinois Death Act was raised

prior to the hearing in a written motion (R. 1018-1027); was

presented in the motion to vacate the plea and briefed before the

Illinois Supreme Court. (Opinion p. 3-4)

REASONS FOR ALLOWANCE OF THE WRIT

I. HERNANDO WILLIAMS' RIGHT TO A JURY AS GUARANTEED BY THE SIXTH

AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION WAS

VIOLATED EY THE PROSECUTION'S USE OF PEREMPTORY CHALLENGES TO

EXCLUDE RACIAL MINORITES FROM THE JURY WHICH ULTIMATELY IMPOSED

THE DEATH PENALTY ON MR. WILLIAMS. ALTERNATIVELY IN LIGHT OF THE

ON-GOING HISTORY OF RACIALLY MOTIVATED USE BY PROSECUTORS IN COOK

COUNTY OF PEREMPTORY CHALLENGES, AS RECOGNIZED BY AT LEAST ONE

ILLINOIS SUPREME COURT JUSTICE AND ONE DIVISION OF THF STATE

APPELLATE COURT, THIS CAUSE SHOULD BE REMANDED TO THE STATE TRIAL

-8-

COURT FOR AN EVIDENTIARY HEARING IN LINE WITH THE HOLDING IN

SWAIN V. ALABAMA, 380 U.S. 202 (1965)

A. HERNANDO WILLIAMS' RIGHT TO BE TRIED BEFORE A JURY WAS

VIOLATED BY THE PROSECUTION'S DELIBERATE EXCLUSION OF ALL BLACKS

FROM THE PETIT JURY.

Hernando Williams plead guilty to murder, armed robbery,

aggravated kidnapping and rape in the Circuit Court of Cook

County, Illinois. Following a sentencing hearing had before a

jury, Williams was sentenced to death for murder.

The woman who was killed was white. Most of the State's

witnesses were white. The defendant is black. His family and

the people he knew who asked the jury to spare his life were

black. The jurors that heard the testimony and whose verdict

condemned Hernando Williams to death were all white.

Of the 128 propsective jurors examined during voir dire, 28

were black. Of those two were excused for cause on motion of the

defense. One had already formed the opinion that Williams should

be executed and the other took part in the investigation of the

cese. A total of 15 black jurors were excused for cause on the

state's motion. Fleven of the 20 peremptory challenges used by

the State were directed at blacks: 8 during the selection of the

actual jury, and 3 to remove all the blacks called as potential

alternates. (H. 6341)

During the voir dire examinations the defense identified

each juror by race and when the State's pattern of racial

exclusion became apparent, brought the matter to the court's

attention. (H. 2005) The issue was formally raised in a written

motion to dismiss the jury (H. 6341) which was denied after

argument. (H. 3170) The State offered no justification and the

court failed to require any justification for the prosecution's

use of peremptory challenges against blacks.

The exclusion of racial minorities from petit juries hes

been recognized as a violation of the Fourteenth Amendment.

Whitus v. Georgia, 385 U.S. 545 (1967) Yet under the authority

a tl

of this Court's holding in Swain v. Alabama, 380 U.S. 202 (1965)

- -

the Illinois Supreme Court rejected Williams' argument tha

rights under the Sixth and Fourteenth Amendment were violeted by

the prosecution's use of peremptory challenges to obtain an all

white jury.

Ironically the holding in Swain does not condone the

racially motivated use of peremptory challenges. Rather it

requires a showing of a systematic and purposeful exclusion of

minorities over a period of time. 380 U.S. 202, 223, The Swain

decision was based on the equal protection clause of the

Fourteenth Amendment and not on the Sixth Amendment right to

trial by jury which was subsequently recognized in Taylor ..

Louisiana, 419 U.S. 522 (1975).

Aside from the fact that Swain is not truly a right to jury

ee Ve

holding have arisen.

In their dissent from the derial of certiorari in McCrav v.

New York, U.ns 33 Cr. L. 4067 (1983)

and Brennan stated that those cases presented "a significant and

recurring question of constitutional law: whether the State's use

of peremptory challenges to exclude all potential Negro jurors

because of their race violates a criminal defendant's right to an

impartial jury drawn from a fair cross-section of the community."

Justices Stevens, Blackmun and Powell, while maintaining that

certiorari was properly denied, agreed with the dissenting

Justices appraisal of the importance of the underlying issue, but

felt it to be a sound exercise of discretion to allow the States

to serve as laboratories in which the issue receives further

study before it is addressed by this Court.

In his petition for rehearing before the Illinois Supreme

Court, Williams pointed out the fact that the opinions in McCray

indicate that the holding in Swain is no longer controlling and,

in essence urged the Illinois Court to assume the experimental

role called for by the concurring justices. The Illinois Supreme

Court denied the rehearing without comment. (Appendix B)

‘

— _- r trom e er seeki g

ly applicable. Others may ¢ refrain fr

arguabl y app.icad.e.

the death penalty.

f in thich cists in pratice

A good example of the arnitrariness which exists

f imilar central Illinois

appears in a comparison of two simi:ar centra?

PT | | :

S amo inties Since the

; ‘urisdictions, Champaign and Sangamon Counties. r

111i ath lty Statute, prosecutors in

enactment of the Illinois Death Penalty} p

} : —

t av ught the th penalty in every murder

Champaigr. County have sought the dea Pp

ing f fas present. See

i i they ] ig factor was pre €

case in which they felt an aggravating

387 N 2d 1284 111.

People v. Kirkpatrick, 70 Ill. App. 3d 166, 387 N.E. 2d

leck] 2 Ill. 2d 145,

App. 1979) (double murder); People v. Gleckler, 82 Il}. d

11 N.E. 2d 849 I11. (1980) (double murder); People v. LeCrone,

ict, No. 15877

Illinois Appellate Court, 4th District,

] Dist, No. 16759

(murder-robbery); People v. Peeptes, 4th Dist, Nc

Thi a ic j in rp ntrast tio

(murder-attempted rape). This practice 1S ii sharp co a

ounty, where although

t icy i arby Sangamon County, wher

the apparent policy in nearby vsang ounty

; i = Te«w kh 2 e

five murder defendants were subject to the death penaity ecaus

ted cution has never

a statutory aggravating factor existec, the prosecutio +

] ry. Nesbi Civ. SC.

sought the death penalty. See People v. Nes! -

(second murder convictions); People

Sangamon County No. 78-CF-53/

No. 16274 (murder-robbery); People v. Lee,

A . Vel — as

v. Brents, 4th Dist,

- tos

’ 73 irder- rv); ple v. Hicks, 4th Dist,

Lth Dist, No. 16273 (murder-robbery); Peop :

} > a 7

No. 16674 (murder-attempted murder-armed robbery); Feopie v.

ayU. + / 4 - - }

ty No. 70-CF702 (second murder

Groth, Sangamon County Case ho. 70-CF702 (

conviction).

9 Se aS me

In the case of People v. LaPointe, 88 Ill. 2d 482, 43

7 t j 1on-negotiated plea of

2d 344, (1972) the defendant entered a non g )

ta j t ra

guilty to armed robbery and murder. The State did not ask fo

death hearing. In reviewing the life sentence imposed upon

Illinoi r ted:

LaPointe, the Illinois Supreme Court note

The record in this case indicates that the

defendant, a young man with a signiticant

history of criminal activity, acted with

premeditate, cold-blooded deliberation in

deciding to kill a cab driver, . —

for which the death penalty could ——_ een

sought, had the prosecutor elected to : +

Following that murder and while pind eld in

the county jail, he displayed a ca ig

attitude and empress. Soe of remorse by

The Illinois Supreme Court in Williams' case has foreclosed

any further consideration of the issue of the prosecution's

racially motivated use of peremptory challenges. See People v.

Withers, _ Ill. App. 3d ___, 450 N.E. 2d 1323 (1st Dist.,

(1983). In that case the State exercised seven of the nine

peremptory challenges used to exclude blacks. The court noted:

The record reveals that the jurors were diverse

but alike in many ways. Most were homeowners and

middle-aged. Many had one or more children still

in school. Some were young and unmarried. Some

were members of civic or church-related organizations

or associations, but most were not. Most read the same

kinds of magazines-Time, Reader's Digest, Sports

Illustrated, National Geographic. Two were members

of the National Rifle Association. For these reasons

defendant contends that the circuit court erred when

it refused to require the State to show that it had

not exclude all the prospective blacks jurors simply

because they were black. 450 N.E. 2d at. 1327.

The court then quoted verbatim from the Illinois Supreme

Court's holding in Williams, and concluded that the argument must

be rejected. 450 N.E. 2d at 1327-29.

Unfortunately, until Swain is specifically overruled, or

modified, the courts of this nation will continue to consider it

the controlling authority. See Footnote 3 in Justice Marshall's

dissent from denial of certiorari in Gillard v. Mississippi,

U.S. , 34 Cr. L. 4013 at 4014 (1983). Only two state's courts

have had the initiative to recognize the validity of this issue

“and in order to do so had to rely on the state's constitution.

People v. Wheeler, 22 Cal. 3d 258, 583 P. 2d 748 (1978);

Commonwealth v. Soares, 377 Mass. 593, 387 N.E. 2d 499 (Mass.,

1979). The issue is apparently considered open in New Mexico.

See State v. Crespin, 94 N.M. 486, 812 P. 2d 716 (1981).

Even less experimentation can be expected from the Circuit

Courts in the Federal System which are certainly bound by the

Swain precedent. In United States v. Carter, 528 F. zd 844 (8th

Cir., 1975) cert. denied 425 U.S. 961, the Court of Appeals

recognized that a serious question arose from the practice of the

United States attorney in striking most or all blacks from the

jury when the defendant was black. The Court urged the trial

Pay hs

courts to exercise their supervisory powers and require the

prosecutor to discharge his duties in a fair, even and

constitutional manner, and thus ensure that no juror is denied

the priviledge of serving on a jury solely because of his race.

However, the Eighth Circuit, sitting en banc, has now concluded

that it has no choice but to follow Swain until this Court

reconsiders that decision. See United States. v. Childress,

F. 2d _,33 __, Cr. L. 2519, at 2521 (1983). Significantly,

the decision of the Illinois Supreme Court in the instant casue

is cited as authority for precluding the Circuit's

experimentation on this issue and the continued validity of the

Swain holding.

It is respectfully urged that this Court grant certiorari in

the instant cause to reconsider the continued validity of the

holding of Swain v. Alabama.

B. WHERE AT LEAST ONE JUSTICE OF THE ILLINOIS SUPREME COURT AND

NE DIVISION OF THE ILLINOIS APPELLATE COUPT HAVE RECOGNIZED THE

EXISTENCE OF "AN OPEN SECRET'' THAT PROSECUTORS IN CHICAGO AND

ELSEWHERE HAVE HISTORICALLY AND SYSMATICALLY USED PEREMPTORY

CHALLENGES TO REMOVE ALL OR ALI BUT TOKEN BLACKS FROM JURIES IN

CRIMINAL CASES WITK BLACK DEFENDANTS, PETITIONER WILLIAMS IS

ENTITELD TO A HEARING ON THIS ISSUE UNDER THE GUIDELINES OF SWAIN

V. ALABAMA, 380 U.S. 202 (1965). |

In his opening brief before the Illinois Supreme Court

Petitioner, Hernando Williams presented statistics from the

Illinois Coalition against the Death Penalty in support of his

argument that his rights under the Sixth and Fourteenth

Amendments to the United States Constitution were violated in

that the prosecution used peremptory challenges to exclude blacks

from jury service. The statistics, as pointed out by the

Illinois Supreme Court indicated that over half the juries in 43

recent capital cases were all white and that most of the other

capital juries had only one black The court went on to point

out what it perceived as imperfections in the statistics offered,

such as the lack of any indication as to how many peremptory

challenges were used in each case. (Opinion p. 10)

In Swain v. Alabama, 380 U.S. 202 (1964) this Court held

that a defendant would be entitled to relief if he could

establish a systematic exclusion of minorities from petit juries

over a period of time. It is petitioner's belief that the

*Juries for Blacks for Conviction Juries for blacks for

Sentencing

Lewis All White Lewis All White

Lampkin 11 White Lampkin All White

Tillis All White Tillis All White

Tiller All White Tiller All White

H. Williams All White

Jones 1 Black

Juries for White

10 Whites had juries. 9 were all White. In one the lawyers

could "recollect" one to two Blacks.

Juries for Hispanics

The four Hispanics had juries. One was all White, another had 1

Black, the third had 4 Blacks and the last had 1 Black and l

Hispanic. (The (c) designates cases from Cook County.)

From Illinois Coalition Against the Death Penalty, Bulletin,

October, 1980.

«39e

figures put before the Illinois Supreme Court are sufficient to

require a hearing on this issue. In his petition for rehearing

before the Illinois Supreme Court, Petitioner in fact argued that

in light of the procedural history of his case a remand for a

hearing on this issue would be appropriate. The rehearing was

denied without comment.

Since the denial of the reheairng in petitioner's case, the

Illinois Coalition Against the Death Penalty has reieased updated

figures.“ Since the enactment of the latest Illinois Death Act,

there have been 61 Juries involved either in the trial or the

penalty phase. Of these, 40 were all white, ten had one black.

. Because petitioner's conviction was by plea of guilty, in order

to perfect an appeal, he had to, within 30 days of final judgment

prosecute a motion to withdraw the plea. Under Illinois Supreme

Court rules a hearing may be held on such a motion.

“Total Juries - 61 All White 40 (662)

Total Jurors - 732 1 Black 10 (162)

Total from l1 or 2 Blacks* 1 (1.52)

minorities - 44 (6%) 2 Blacks 1 (1.5%)

4 Blacks 2 (3%)

Same jury for conviction and

sentencing 39 5 Blacks b fi.2ee

Jury for conviction only 10 1 Black/lHispanicl(1.52)

Jury for sentencing only 6 2 Blacks/1lHispanicl(1.52Z)

Two separate juries 3 4 Blacks/1lHispanicl(1.57Z)

3 Blacks/2Hispanics(1.52)

Bench for conviction and

sentencing 8 1 Black/1 Asian 1(1.52)

Bench for conviction only 3 1 Hispanic 2

(1.52)

Bench for sentencing only 12

*As recollected

Pled Guilty 4

Plea with jury sentencing 2

Plea with bench sentencing]

Illinois Coalition Against the Death Penalty July 31, 1983.

«ldo

Aside from the statistics concerning capital cases, the

Iliinois courts have noted the problems of the prosecutor's

racially motivated use of peremptory challenges. In the case of

People v. Payne, 106 I11. App. 3d 1034, 435 N.E. 2d 1046 (1983)

the appellate court reversed a conviction holding that the

prosecution's systematic exclusion of Blacks in that case solely

because of race was invidious and a violation of an individual's

Sixth Amendment right to a jury. The same division of the

appellate court, (lst Dist., 3rd Div.) also found improper

racially motivated peremptory challenges in the cases of People

v. Gosberry, 109 Ill. App. 3d 647, 440 N.E. 2d 954 (1982) and

People v. Gillard, 112 Ill. App. 3d 799, 445 N.E. 2¢ 1292 (1983).

All of these decisions were rendered before the Illinois

Supreme Court's opinion in Peititioner's case in which that court

blindly adhered to its previous interpretation of Swain v.

Alabama.

The State sought and was granted discretiorary review in all

three cases. Payne has been argued but not yet decided. The

State's petition for leave to appeal in Gillard was recently

granted, Ill. S. Ct. Docket #58145. In Gosberrv, the state's

petition was granted and without argument or briefs, the Illinois

Supreme Court reversed the appellate court's holding in that case

citing dicta from the case of People v. Davis, 95 Ill. 2d 1, 447

N.E. 2d 353 (1983) in which the racial exclusion argument had

been rejected at least partially because there was an

insufficient record to support the argument.

Justice Seymour Simon dissented from the summary action in

Gosberry and pointed out that the Payne case was still pending

before the court. Justice Simon noted in his dissent the growth

in the number of cases in which the issue had been raised. He

went on to conclude:

In view of the staggering number of cases in

this State raising this issue, I question

whether it has not been established that

prosecutors in Illinois have been purposely

and systematically using peremptory challenges

in case after case to achieve the exclusion of

oS.

black persons from iuries in a State having one

of the largest pouplation of blacks persons in the

nation.” 449 N.E. 2d at 818.

Justice Simon also quoted from the opinion in People v.

Gillard, 112 Ill. App. 3d 799, 445 N.E. 2d 1293, 1299, in which

Justice Rizzi of the appellate court wrote:

It is an open secret that prosecutors in

Chicago and elsewhere have been using their

peremptory challenges to systematically

eliminate all Blacks, or all but token

Blacks, from jurics in criminal cases

where the defendants are Blacks.

(Citation omitted) 445 N.E. 2d at 1297.

Another significant factor in Gillard was the observations

of the trial judge, the Honorable Howard Miller. After denying

defense motion to discharge the jury due to the prosecutor's

raciallv motivated use of peremptory challenges because he was

bound by the streit-jacket of Swain, Judge Miller noted for the

record:

I think that the attitude-I am not speaking

of you individuals, I am talking about the

attitude of the State's Attorney's Office,

period. I find this is morally reprehensible

and in my opinion there is a purposeful dis-

crimination, in my opinion. It's an invidious

discrimination. Its a bad policy that thev have

and I find the State's Attorney's attitude and

policies towards removal of Black people from

the jury is, to me, is personally offensive not

only as a Black person, but as a Black lawyer and

a Black judge.

SF 2

In my past experience I found this same policy,

the same procedures followed.

All right. Your motion is denied.

445 N.E. 2d at 1295.

Again, in his dissent in Gosberry, Justice Simon wrote:

Whether this systematic use in Illinois of

peremptory challenges to exclude black jurors

on the basis of race violates the equal protection

clause of the Fourteenth Amendment even under

the majority's interpretation of the standards

announced by the Supreme Court in Swain calls for

an examination by this court. 449 NE. 2d 819.

-l6-

———=——

-atutedtieaitiees Meciieieeaestee oe

If it is this Court's intention to allow the holding in

Swein to remain in force, it is incumbent on this Court to set

standards that will allow defendants who face trial or have been

ried in jurisdictions such as Cook Cointy, Illinois where the

prosecution's historic racially motivated use of peremptory

challenges are common knowledge subject to judicial notice to

litigate that issue. Certiorari should be granted in this case to

settle the question of the continued validity of Swain v.

Alabama, or alternativly to recognize that the holding in Swain

requires that Petitioner be given the opportunity to establish

the continuing historic and systematic exclusion of blacks from

criminal juries in Cook County, Illinois.

II. HERNANDO WILLIAMS' SIXTH AMENDMENT RIGHT TO A JURY DRAWN

FROM A CROSS-SECTION OF THE COMMUNITY WAS VIOLATED BY THE

EXCLUSION OF JURORS WITH SCRUPLES AGAINST TRE DEATH PENALTY. IN

AFFIRMING THE SENTENCES OF DEATH IMPOSED UPON WILLIAMS THE

ILLINOIS SUPREME COURT ERRED BY MISAPPLYING STATE EVIDENTIAPY

WAIVER RULES TO A SIXTE AMENDMENT ISSUE.

Hernando Williams was sentenced to death by a jurv from

which jurors with scruples against capital punishment were

excluded on the state's motion. During the jury selection

process, the defense objected to these rulings. The issue was

also raised in the post-hearing motion to vacate guilty plea and

on direct appeal in the Illinois Supreme Court argument was

advanced that 12 prospective jurors had been erronously excluded

in violation of this Court's holdings in Witherspoon v. Illinois,

391 U.S. 510 (1968) and Adams v. Texas, 448 U.S. 38 (1980).

The Illinois Supreme Court held that, as to four of the

venire persons in question the exclusion had "no reference to the

and that seven of the others were properly

death penalty’

excluded under the Witherspoon holding. (Op. p. 16)

As to one of the jurors, Delores Hudson, the Illinois

Supreme Court held that she was excluded for her views of the

death penalty but that "any possible error in regard to

Witherspoon was waived". (Op. p. 20) The court then set out

excerpts from her examination, and stated its holding that

because the defense voiced the specific objection as to her

dismissal "that the defense did not have a sufficient opportunity

to question the prospective juror. (Opinion p. 20) “any

Witherspoon error was waived.

The actual objection was:

MR. NUDELMAN: I want to make a record of some-

thing. For the purposes of the record, Judge we

are...Again, Mrs. Hudson was excused over our

objections, Judge. We do not feel we had a

sufficient opportunity to go into proper witness

question and I am making the objection.”

(H. 2410-2411)

The only authority cited by the Court to support its holding

that this objection waived any Witherspoon issue was the case of

Town of Cicero v. Industrial Commission, 404 I1l1. 487, 495, 404

N.E. 26 354 (1950) and a treatise on Illinois Evidence. (Op. p.

21)

*Petitioner maintains that all scrupled jurors were improperly

excluded. As to two of the four whose exciusion the Court

declared unrelated to the death penalty. Jean Samps, despite a

belief in capital punishment was excused because she didn't want

to "Play God" (R. 2237) and Joan Carter was excluded because she

stated she would follow her "inner feelings" even if those

feelings conflicted with the trial Court's instruction. Ms.

Carter could not envision a situation where she would not follow

the law. (H. 1478-81) (Op. 16-17) Under Witherspoon, the

excusal of these jurors was error.

-18-

The application of state evidentiary rules of waiver to a

question of a capital defendant's Sixth Amendment right to a jury

reflecting of a cross-section of the community is highly

questionable. Indeed, in the case of People v. Szabo, 94 I11.

2d, 327 447 N.E. 2d 193 (1981) the Illinois Supreme Court refused

to apply any concept of waiver to the improper excusal of two

jurors stating: "we do not consider the improper-exclusion

argument to be waived by the lack of a contemporaneous objecticn

here." 447 N.E. 2d at 206. The question of whether or not the

failure of the defense to object or voice the proper obiection on

a Witherspoon issue has been before this court in at least two

cases. California v. Velasquez, 448 U.S. 903, (1980) and

California v. Lanphear, 449 U.S., 801. In both these cases, the

State court had held waiver could not be applied.

People v. Velasquz, 2€ Cal. 3d 514 606 P. 2d 341 (Cal. 1980)

and People v. Lanphear, 608 P. 2d 689 (1980). The prosecution

appealed and this Court vacated the judgments and remanded in

light of Adams v. Texas, 448 U.S. 38 (1980). California v.

Velasquz, 448 U.S. 903, (1980) and California v. Larphear, 449

U.S. 801 (1980).

In reaching its original decision, the California Supreme

Court examined the procedural history of various cases which this

Court had summarily reversed on Witherspoon issues. These

included the case of Wigglesworth v. Ohio, 403 U.S. 947, (1971)

in which the state court had held the issue of a juror's excusion

waived. Indeed in Wigglesworth, the Ohio Supreme Court had held

that the defense agreed to having the juror excluded. State v.

Wigglesworth, 18 Ohio St. 2d 171, 248 N.E. 2d 607, 614 (1969).

Nevertheless, the resulting death sentence was vacated.

In May v. State, 618 S. W. 2d 333, the Texas Court of

Criminal Appeals, despite what three dissenting iudges believed

to be sufficient objections, held as did the Illinois Court in

-19-

this case that an insufficient objection had been made to

preserve an Adams-Witherspoon issue. In May v. Texas, 454 U.S.

959 (1981) this court granted certiorari and vacated and remanded

the case for reconsideration in light of Adams v. Texas.

In Bass v. Estelle, 699 F. 2d 1154 (1983) the Fifth Circuit

held various Witherspoon errors waived. This holding was

mitigated; the case being remanded for a hearing concerning

allegations of incompetency, which included the failure to object

to the improper excvsal. However in Granviel v. Estelle, 655 F.

2d 673 (5th Cir.,1981) the Fifth Circuit held the absence of a

contemporaneous objection did not constitute a procedural

default. Thus holding was based on the apparent absence of a

contemporaneous objection rule at the time of petitioner's trial.

The holding by the Illinois Supreme Court in People v. Szabo, 94

Ill. 2d 327, 447 N.E. 2d 193 (1981) that the absence of an

objection in that case did not require the application of the

waiver doctrine is significant. Why should waiver be applied to

Hernando Williams in the most severe technical form but not to

Szabo?

In McCorquodale v. Balkcom, 705 F. 2d 1553 (llth Cir., 1983)

the manner in which prospective jurors were yuestioned was held

to violate the Witherspoon doctrine. The dissent in this case

noted that no objection had been made by petitioner to the manner

in which the jurors were questioned.

Likewise in Burns v. State, 556 S.W. 2d 270, (Tx. Cr. App.

1977) the court found "harmless" a Witherspoon-Adams viclation

and noted in passing that the only cbjection made was that the

venire person should be questioned further. Relying on Davis v.

Georgia, 429 U.S. 122, (1977) which held that the exclusion of a

single juror in violation of Witherspoon required the vacation of

the resulting death sentence, the Fifth Circuit, rejected the

harmless error argument of the respondart. In dealing with a

Wainwright v. Svkes, 433 U.S. 72 (1988) waiver argument advanced

by respondent the court pointed out that much of the questioning

of the juror at issue dealt with the Witherspoon cause, and thus

viewed in context the objection was sufficient to present the

issue. The nature of the objection was identical to the

interpretation given the defense objection at Petitioner's

hearing by the Illinois Supreme Court. See Burns v. Estelle, 592

F 2d 1297 (Sth Cir., 1979).

The holding in Witherspoon is not a grant of authority to

the prosecutors in death cases, rather it is a limitation. It

sets forth what the prosecution must establish in order to

sustain the exclusion of a scrupled juror. Only a narrow class

of individuals, those so opposed to the death penalty as to be

unable under any circumstances to consider it, are excludable.

The exclusion of a single venire person who does not meet this

narrow test requires the vacation of the resulting death

sentence. Davis v. Georgia, 429 U.S. 122 (1976) Obviously the

burden of establishing that the prospective juror qualified for

exclusion under Witherspoon must rest on the State. The defense

does not have the burden of establishing the negative of the

proposition, i.e. that the juror could consider the death

penalty. The holding by the Illinois Supreme Court in Williams'

case to the opposite actually conflicts with the long standing

Illinois law that the burden of establishing the need to excuse a

juror rests on the party seeking to have the juror excluded.

People v. Coie, 54 Ill. 2d 481, 298 N.E. 2c 705 (1973).

Petitioner believes that despite the apparent confusion in

some jurisdictions, that this Court has long settled the question

of waiver on the Witherspoon issue. While the instant case does

present the question, and could be a proper vehicle for this

Court to explicitedly settle the issue, it is also a case which

could be summarily disposed of by a grant of certiorari and a per

curiam order vacating the death sentence imposed by the "hanging

jury". (Witherspoon, 391 U.S. at 785) which condmended Hernando

Williams to death. Cf. Wigglesworth v. Ohio, 403 U.S. 947

(1971).

III. THE ILLINOIS DEATH ACT BOTH ON ITS FACE AND AS APPLIED

AGAINST HERNANDO WILLIAMS IS VIOLATIVE OF THE EIGHTH AND

FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTICH.

As of July 31, 1983 there are 53 men under sentence of death

in Illimpis. Nine of these men have had their sentences affirmed

by the Illinois Supreme Court’, despite the fact that a majority

of the justices sitting on that court have declared their belief

that the Illinois Death Act in unconstitutional. See dissenting

opinions in People ex. rel Carey v. Cousins, 77 Ill. 2d 531, 397

N.E. 2d 809 (1979) and People v. Lewis, 88 Ill. 2d 129, 430 N.E.

2d 1045 (1981) especially concurring opinions and dissent by

Justice Simon. The Illinois statute allows the prosecutor total

discretion on the basic decision as to whether or not an

individual will be subjected to a capital sentencing hearing; it

offers no true guidance to the sentencing authority and the

concept of comparative appellate review has been explicitly

rejected by the Illinois Supreme Court. In this situation the

enforcement of the statute assures the freakishness that was held

to be violative of the prohibition against cruel and unusual

punishment in Furman v. Georgia, 408 U.S. 238 (1972).

A. THE ILLINOIS DEATH ACT, BY VESTING TOTAL DISCRETION 1N THE

PROSECUTORS AS TO WHOM SHALL BE SUBJECT TO THE DEATH PENALTY

ENSURES THAT CAPITAL PUNISHMENT WILL BE INFLICTED IN A FREAKISH

MANNER IN VIOLATION OF THE EIGHTH AND FOURTEENTH AMENDMENTS TO

"4E UNITED STATES.

After a conviction for murder, a death penalty hearing in

Illinois can be held only "[{w]here requested by the State." Ill.

Rev. Stat., 1977, Ch. 38 Section 9-l(d). The Supreme Court of

Illinois recognized that his statutory language places the

decision on whether to convene a death hearing solely and

Based on statistics from Illinois Coalition Against the Death

Penalty.

o22-

squarely in the hands of the Illinois prosecutors. People ex.

rel. Carey v. Cousins, ’7 I11. 2d 531. 397 N.E. 2d 809 (1979).

No other Jurisdiction grants such authority on what is basically

a judicial issue to the executive branch of the government.

Fowr of the seven Justices now sitting on the Supreme Court

of Illinois believe that the Illinois statute violates the Eighth

Amendment. See People v. Lewis, 88 I11. 2d 129, 430 N.E. 2d 1346

(1981).

In the Cousins case, three Justices -- Ryan, Clark, and

Goldenhersh -- joined in a dissent. All three opined that giving

the Illinois prosecutor the crucial decision, without any guiding

standard, as to whom shall be spared from the ultimate penalty,

violated the Eighth Amendmert. A fourth, Mr. Justice Simon,

adopted this positin in Lewis and has adherecd to it in

subsequent cases. (He did not participate in the instant

appeal). Although the three Cousins dissertcrs reaffirmed their

views in Lewis, each refused to join Justice Simon for reasons

ranging from stare decisis to reliance that tnis Court would

review the case. People v. Lewis, 430 N.E. 2d at 1364. (Chief

Justice Goldenhersh and Justices Ryan and Clark, concurring).

In Gregg v. Georgia, 428 U.S. 153 at 188, 96 (1976) this

Court explained the holding in Furman v. Georgia, 408 U.S. 238

(1972) noting that Furman prohibits the death penalty "under

sentencing procedures that created a substantial risk that it

would be inflicted in an arbitrary and capricious manner."' 428

U.S. at 188.

The Illinois Death Act not only creates such a risk, but

assures that capital punishment will be inflicted in an almost

random manner. There are 102 counties in Illinois, each with

one elected State's Attorney. Each of these prosecutors will

approach any potential capital case with a different prosepctive.

In some rural counties, a capital trial may be deemed simply too

expensive in all but the most exceptional case. In other

counties a prosecutor may, as an office policy, request a death

penalty hearing in each and every case where the statute is

wearing the tee shirt with the words "Elmurst

Executioner" appearing thereon. We do not

believe that the trial judge can be said to have

abused his discretion in sentencing defendant

to natural life imprisonment without parole.

Under the Illinois Death Act, 431 N.E. 2d at 353 a

prosecutors in one county will seek the death penalty against

individuals like LaPointe, but other state's attorneys will not.

It is true that in Grege v. Georgia, 428 U.S. 153, (1976) this

Court recognized the necessity of proc«cutors exercising

pre-trial discretion. The issue here is whether, in the total

absence of any statutory guidelines the prosecutors should be the

only authority on whether or not the death penalty should even be

sought. Certiorari ought to be granted to settle this question.

B. THE ILLINOIS DEATH ACT VIOLATES THE EIGHTH AND FOURTEENTH

AMENDMENT IN THAT IT PROVIDES NO DEFINED LIMITS ON THE FACTORS

WHICH MAY BE CONSIDERED BY THE SENTENCING AUTHORITY, NOR DOES IT

ALLOCATE A BURDFN OF PROOF AS TO THE ULTIMATE ISSUE.

The Illinois Death Act requires, that once the prosecutor

has decided to seek the death penalty, the sentencing authority

determine the defendant's eligibility for the ultimate penalty by

finding beyond a reasonable doubt the existence of one or more

aggravating factors. Ill. Rev. Stat., 1977, Chapter 38, Section

9-1(b)1-8. If one of these factors is found the sentencing

authority is required to consider the qualifying factors and anv

“additional aggravating factors."' These factors may include but

need not be limited to the statutory factors necessary to render

the defendant liable to the death penalty. Ch. 38, Sec. 9-l(c).

The nature of the additional factors in aggravation is not

defeined by statute. The admissibility of these nonstatutory

factors is not limited by the rules of evidence. Ch. 38, Sec.

9-l(e). Thus, when an Illinois defendant has been found eligible

for the death penalty, there are no restrictions on the factors

which may then be considered as reasons for actually imposing

death on that defendant.

=25-

In Zant v. Stephens, U.S. , Fe ke BO. 26.235, . 203-8.

Ct. 2733 (1983), this Court stated that due process of law would

require a death sentence to be set aside where the aggravating

label had been attached to conduct which was constitutionallv

protectcd, to factors that are constitutionally impermissible or

totally irrelevant to the sentencing process, or to conduct that

actually should militate in favor of a lesser penalty. 77 L. Ed.

2d at 255. The Georgia statute met these concerns because it

gave the defendant pretrial notice of th evidence which would be

presented. 77 L. Ed. 2d at 255-256. In addition, all factors to

be considered at sentencing were defined by Georgia trial court

before their submissicti. to the sentecing jury. See Hardy v.

State, 245 G. 272, 264 S. E. 2d 209, 215 (1980). The Illinois

Statute contains no comparable safeguards.

In Barclay v. Florida, U.S. » Fh Bee Bs ZO ERae: 202

S. Ct. 3418 (1983), this Court considered whether the sentencer's

reliance upon a nonstatutory aggravating factor violated

constitutional safeguards. The Court held that it did not

because the factor at issue concerned the defendant's criminal

record, which was relevant even if not authorized as an

aggravating factor by state law. The significance of this case

is that the Florida statute required the sentencing court to set

forth in writing its findings upon which the sentence of death

was based, and that only because of this requirement could a

reviewing court determine the sentencing court did not rely upon

an impermissible aggravating factor. Again, the Illinois statute

does not contain a comparable safeguard.

The statute also fails to allocate a burden of proof.

To convict and place a person in prison the State in a

non-capital prosecution must establish proof beyond a reasonable

doubt. In Re Winship, 397 U.S. 358 (1980). It follows that when

the issue is whether or not an individual should be executed that

the State must bear the burden of proof beyond a reasonable

doubt. In the Illinois Death Penalty Act the only indication of

a burden, indeed the only guidance given to the jury as to the

ultimate question, is that the jury must conclude that "there are

no mitigating factors sufficient to preclude the imposition of

the death sentence.” I11l. Rev. Stat., Ch. 38, Sec. 9-l(g).

The jury in this case was not given meaningful guidance in

its final deliberations because the statute establishes no burden

of proof as to the existence or non-existence of mitigating

factors. There is no valid effort to guide the jury in the

consideration of the character and record of the individual

before them as is required by the Eighth Amendment. Woodson v,

North Carolina, 428 U.S. 280 (1976).

The conspicuot:s absence of any statutory language setting

forth a burden of proof limiting consideration of aggravating

factors, or directing consideration of mitigating factors result

in a license for arbitrarv results on the decision of whether or

not to impose the death penalty.

Without such guidance it is intolerablv likely that one

sentencing authority would apply a preponderance burden, while

another would apply the more familiar standard of proof beyond a

reasonable doubt, while still another may focus upon a standard

akin to the clear and convincing evidence test. Indeed, given

the failure of the Illinois statute to require specific findings

of facts, it wili be impossible to determine whether a sentencer

has applied any rational standard at all in weighing the evidence

and reaching a decision. The Illinois statute also makes it

intolerably likely that individual sentencers would differ on the

‘lecation of these burdens between the defendant anu the

prosection. Such a system obviously creates a license for

arbitrary procedure which this Court found impermissible in

Furman v. Georgia, 408 U.S. 238 (1972).

The Illinois Death Act presents a total absence of any

guidance even on the issue of burden of proof. For these reasons

it is respectfully reauested that certiorari be granted, and

Petitioner's death sentence be vacated.

. -27-

C. THE ILLINOIS DEATH SENTENCING SCHEME FAILS TO PROVIDE

ADEQUATE COMPARATIVE REVIEW PROCEDURES TO INSURE THAT THE DEATH

PENALTY IS NOT IMPOSED IN AN ARBITRARY OR DISPROPORTIONATE

MANNER.

In Furman v. Georgia, 498 U.S. 238, (1972), this Court held

that the penalty of death may not be imposed under sentencing

procedures that create a substantial risk that the punishment

will be inflicted in an arbitrary and capricious manner. A

capital sentencing scheme must provide a meaningful basis for

distinguishing the few cases in which the death penalty is

imposed from the many cases in which it is not.

Appellate review procedures which serve to insure that the

death penalty is not being imposed arbitrarily and capriciously,

by providing for comparative review, are essential to a

constitutional death penalty scheme. Because such procedures are

not yet provided for in Illinois, tnere is no guarantee that the

death penalty will not be imposed in an arbitrary and capricious

manner.

The Illinois Supreme Court initially indicated that a tvpe

of comparative review wouild be used in reviewing sentences of

death. People v. Brownell, 79 Ill. 2d 508 (1980). Im People v.

Gleckler, 82 Ill. 2d 145, 411 N.E. 26 849 (1980), the court

asserted that it "historically exercised its power to reduce

criminal sentences in both capital and non-capital cases, where

it deemed them unduely severe." 82 Ill. 2d 145 at 162.

Yet in the instant opinion, in a single sentence the Court

declares, in effect, that a menaingful comparative review would

require a comparison between all potential death cases. (Op. p.

3-4) The implication here is that the court has rejected the

argument simply because it seems like too much work.

In his brief before the Illinois Supreme Court petitioner

pointed out that the Administrative Office of the Illinois Courts

Annual Report to the Supreme Court of Illinois could provide at

least a starting point for the task of comparative review.

Illinois also has a criminal sentencing commission whose's duties

—

~-*

include development of "Standardized sentence guidelines". I

Rev. Stat., 1981, Ch. 38, Sec. 1005-10-1. The task of

comparative review is not impossible nor would it create an

insurmountable burden.

Hernando Williams’ sentence of death was affirmed in an

opinion that makes no pretence of comparative review and in fact

summarily rejected the concept. Ironically a very similar case,

People v. Brownell, had previously been reviewed twice by the

Supreme Court. In Brownell's first appeal, 79 I11. 2d 508, 404

N.E. 2d 181 (1980) his death sentence was vacated due to the

apparent reliance of the sentencing authority, a judge, on an

improper aggravating factor, i.e. that the person killed was a

material witness. Upon remand Brownell was resentenced to death.

Again his death sentence was vacated. The holding on the second

appeal applied an analogy of collateral estoppel since the

prosecutor had, at ore point offered not to seek the death

penalty if Brownell would confess. He subsequently confessed

after the offer was withdrawn. People v. Brownell, Ill. 24

__—s« 449 NE. 2d 1312 (1983).

The facts in Brownell involved kidnapping, rape and murder,

as did those in the instant prosecution. Following his arrest,

Hernando Williams confessed, as did Crtis Brownell. Admittedly

there are factual difference in that the victim in the instant

case was held captive for a longer period of time. Yet no court

has sought to explain how or even whether those difference

justify the imposition of the ultimate penaity against Mr.

Williams as opposed to the sentence of imprisonment which Curtis

Brownell will serve.

This issue is presently before the Court in Pulley v.

Harris, No. 82-1095. Certiorari should be granted to determine

whether the lack of comparative review in Illinois violates the

Eighth and Fourteenth Amendments to the United States

Constitution.

=29-

IV. HERNANDO WILLIAMS' RIGHTS TO DUE PROCESS AND TO BE PROTECTED

FROM CRUEL AND UNUSUAL PUNISHMFIIT WERE VIOLATED BY THE

APPLICAi LON OF AN AGGRAVATING FACTOR THAT POTENTIALI.Y RENDERS ALL

HOMICIDES CAPITAL OFFENSES.

One of the statutory aggravating fectors which the

government must prove beyond a reasonable doubt in order to

qualify an Illinois defendant for the death penaity is that the

person killed "was a witness in a prosecution against the

defendant,"' or was in position to give material evidence against

the defendant. Ill. Rev. Stat., Ch. 38, 1978, Sec. 9-1(b)(7).

In the case of People v. Brownell, 79 I11. 2d 508, 404 N.E.

2d 181 (1980) the Illinois Supreme Court noted that a literal

interpretetion of this language would subject nearly all

defendants convicted of murder to potential death sentences. The

court therefore ruled that the actual legislative intent was

limited to those situations where "during an investigation or

prosecution of a separate offense which has previously taken

place, a witness is killed to stymie the investigation or

prosecution.” 404 N.E. 2d at 190.

In the instant prosecution the jury which sentenced Hernando

Williams to death, found the existence of this factor as well as

the statutory aggravating factors that the victim was killed in

“he course of the various felonies the victim witnessed. Ill.

Rev. Stat., 1978, Ch. 389-(b)6.

The facts brought out at the sentencing hearing indicate

that the victim in this case was kidnapped, and held for 36 hours

in various locations. On the morning of her death, she was

released from the trunk of petitioner's car, and told to take a

bus home and not contact the police. Williams then drove around

the block, saw the deceased bn a front porch from which she was

called. She was then taken to an alley and kilied.

In this factual situation the Illinois Supreme Court some

how concluded that the on-going felonies which constituted

«96>

statutory aggravating factors continued and that the deceased was

killed because she was a material witness. The court's hoiding:

Under these circumstances, the jury could

have found both that the murder was committed

"in the course" of the other felonies, and

that the victim was an eyewitness. There is

no significant difference between the circum-

stances here and a situation in which a defendant

kidnaps and rapes the victim, sets her free,

and at a later time kills her while she is on

her way to testify against him. The latter

situation clearly is within this court's under-

standing of the statute considered in Brownell.

We do not see why the General Assembly would not

have intended the circumstances here to be within

the statutory factor. The legislature's clear

concern, to protect persons who could assist in

the apprehension and prosecution of the accused

(see Remarks of Senator Knuppel, debate of

amendment 3 to H.B. 10, 80th Gen. Assem., June

1, 1977, at 21-25), is served by such an

interpretation. (Op. p. 9)

The court offered no explanation as to how, in light of this

conclusion, it could be said the other aggravating factor, that

the witness was killed in the course of a felony would be validly

found by the jury.

In People v. Brownell, the Illinois Supreme Court recognized

that the statutory aggravating factor could not be literally

applied. Its holding in Williams however creates a problem since

the killing of a material witness now may or may not be

applicable in any given case depending upon the court's

conclusion that the killing has "no significant difference”

between killing the witness on his way to court.

This interpretation of the broad statutory language creates

an absolute certainty that death sentences will be imposed in an

arbitrary and capricious manner which violates the Eighth

Amendment. Godfrey v. Georgia, 446 U.S. 420 (1981).

The importance here is that under Illinois law the finding

of an improper aggravating factor requires, at a minimum, a new

sentencing hearing. People v. Brownell, 79 I11. 2d 508, 404 N.E.

2d 181 (1978). Even in non-capital cases, reliance on improper

aggravating factors generally requires re-sentencing. People v.

Conover, 84 Ill. 2d 400, 419 N.E. 2d 906 (1981). Although

s$l-

Illinois courts have recognized some potential for harmless

error, the test seems to be whether or not the sentencing

authority was "arguable influenced" by the improper reliance. Cf.

People v. Eddington, 77 I1l. 2d 41, 394 N.E. 2d 1185 (1979).

Since the jury in this case believed that two separate

aggravating factors existed and since the jury was instructed

during its final deliberations to consider the aggravating

factors that had previously been founc, the death sentence

imposed upon Hernando Williams must be vacated.

VY. SINCE ONLY THE PROSECUTORS COULD DETERMINE WHETHER OR NOT TEE

DEATH PENALTY WOULD BE SOUGHT AGAINST HERNANDO WILLIAMS HIS

RIGHTS TO DUE PROCESS WERE VIOLATED WHEN THE COURT ACCEPTED HIS

PLEA OF GUILTY WITHOUT INFORMING WILLIAMS THAT EVEN A CONVICTION

BY PLEA OF GUILTY WOULD SUBJECT HIM TO THE STATE'S ATTORNEY'S

DISCRETIONARY ELECTION TO SEEK THE DEATH PENALTY.

At the time Hernando Williams, through his counsel,

announced his intention to plead guilty to murder and other

offenses, he did not and could not know whether he would face the

death penalty. Under the Illinois Death Act a death penalty

hearing can be held only when "requested by the State."" J1l.

Rev. Stat., Ch. 38, Sec. 9-1l(d).

After the announcement of Petitioner's intent to enter pleas

of guilty, the court, prior to accepting Williams’ plea,

attempted to admonish him pursuant to the requirement of Illinois

Supreme Court Rule 402 and this Court's holding in Boykin v.

Alabama, 365 U.S. 238, (1969).

The court's admonishments included the rights waived by a

plea of guilty and an attempt to convey the consequences of the

plea. The comments by the court concerning sentencing were:

I must advise you further that you can be

tried before this court or before a jury. If

you are found guilty ct murder, under the

circumstances of which case the death penalty

could be imposed.

I must also advise you in addition to the

possibility of the death penalty under the Code

as it exists in the State of Illinois, is a

further provision for the imposition of sentence

for the crime of murder wherein it is provided the

minimum term to be imposed shall be not less than

20 years not more than 40 years.

If the Court finds that the murder again was

accompanied by exceptionally brutal or heinous

behavior indicative of wanton cruelty or if any

of the aggravating factors listed in the Code

proper were found to be present, the Court mav

sentence the defendant to a term of natural life

imprisonment. (H. 10-13)

No clear statement was made as to the penalties which could be

imposed after a plea of guilty.

The clear import of the judge's admonition is that Hernando

Williams could be sentenced to death only "If tried and

convicted" by a jury or "If found guiity" at a bench trial.

At the time of his plea of guilty Hernando Williams did not

and could not have known the maximum penalty that his plea could

subject him to. Williams' plea was not negotiated. In fact the

State expressed surprise during the plea proceedings and

emphatically stated that no promises or deals had been made. (H.

61) At en earlier heering, in response to a defense motion for

disclosure as to whether or not the death penalty would be sought

the State characterized the case as "a potential death penalty

case"’ but in essence refused to disclose to defendant, his

counsel or the court whether or not that penalty would be sought.

(H. 6116-6117) The response ended with the declaration that the

prosecution would decide whether or not to seek the death penalty

"If and when it is necessary." (H. 6117)

After judgment was entered on the pleas, the State moved

that the case be passed, since no determination as to whether or

not to seek the death penalty had been made. (H. 63) Thus even

after the plea had been accepted and judgment entered thereon, no

one in the courtroom, least of all defendant or his lawyers, knew

the full consequences of the plea, i.e. whether the death penalty

would be sought. Thus the record can not be said to show that

«A3<

the plea of guilty was voluntarv. Brady v. United States, 397

U.S. 742 (1970).

In order to comply with due process a plea of guilty cannot

be accepted unless it appears from the record that the plea was

entered knowingly, intelligently and voluntarily. Boykin v.

Alabama, 397 U.S. 238 (1969). One of the requirements for a

knowing and intelligent plea is that the defendant be advised of

the maximum penalty that may be imposed following his plea of

guilty. People v. Krantz, 58 Ill. 2d 187, 317 N.E. 2d 559

(1974).

In rejecting Petitioner's argument that the record in this

case does not establish that Williams was aware of the

consequnces of his pleas the Illinois Supreme Court held that the

trial court's admonishment was sufficient to "convey the required

warning.'' The court went on to conclude, based on various

inferences i.e. pre-plea pleadings and motions filed subsequent

to the plea, and Petitioner's statement that he had discussed

with his attorneys the consequences of the plea, that Petitioner

must have been aware of the potential death sentence. (Op. p.

6-7)

This holding, based on inferences, is in direct conflict

with Boykin v. Alabama, 395 U.S. 238 (1969) which requires that

the record show that a plea of guilty was in fact a knowing and

intelligent waiver. Since the record itself fails to establish

that Hernando Williams, at the precise moment he entered his plea

of guilty, knew or could have known he faced the death penalty,

certiorari should be granted to review whether or not the plea of

guilty in this cause satisfied due process.

athe

For the foregoing >easons, Petitioner Hernando Williams,

respectfully requests that a Writ of Certiorari be issued to the

Supreme Court of Illinois.

OF COUNSEL:

Sheldon Bart Nageiberg

CONCLUSION

Respectfully submitted,

STEVEN CLARK

Deputy Defender

KENNETH L. JONES

Assistant Appellate Defender

Office of the State Appellate Defender

109 North Dearborn Street

8th Floor

Chicago, Illinois 606002

(312) 793-5472

-35-

IN THE

SUPREME COURT CF THE UNITED STAFESBE CEIVED

NOV 21 1983

TOBER TERM, 1983 OFFICE OF THE CLERK

i . SUPREME COURT, U.S.

RKERNANDO WILLIAMS,

Petitioner, 7

837540

PEOPLE OF THE STATE OF ILLINOIS

-VSsS-

Respondent.

APPENDIX FOR WRIT OF CERTERIORARI

+ - + ~~ as

STEVEN CLARK

Deputy Defender

KENNETH 1. JONES

Assistant Appellate Defender

Office of the State Appellate Defender

109 North Dearborn Street

8th Floor

Chicago, Illinois 60602

(312) 793-5472

COUNSEL FOR PETITIONER

Of Counsel:

Sheldon Bart Nagelberg

Docket No. 53240—Agenda 2—September 1982.

THE PEOPLE OF THE STATE OF ILLINOIS, Appellee,

v. HERNANDO WILLIAMS, Appellant.

JUSTICE WARD delivered the opinion of the court

After his pretrial motions had been denied, Hernando

Williams changed his piea to guilty in the circuit court of

Cook County to charges of murder, armed robbery, rape

and aggravated kidnaping. The pleas were accepted and

judgment was entered upon them. The State then asked

for the death penalty, and after a bifurcated sentencing

proceeding before a jury and the judge who had accepted

the pleas, the defendant was sentenced to death on the

murder conviction. He was sentenced to concurrent terms

of 30 years for armed robbery and aggravated kidnaping.

He was sentenced to 60 years for rape, but that sentence

was ordered to run consecutively to a prior 30-year sen-

tence for rape. The circuit court denied a motion by the

defendant to vacate the picas of guilty, and the defendant

has taken a direct appeal to this court under the Constin-

tion of Mlinois (Ill. Const. 1970, art. VI, sec. 4(b)) and un-

der our Rule 603 (73 Lil. 2d R. 603).

According to testimony given at the sentencing hear-

ings and at an earlier motion to suppress statements of the

defendant, the victim, Mrs. Linda Goldstone, on March 30,

1978, was employed at Northwestern Memoriai Hospital in

Chicago as an instructor in the Lamaze method of child-

birth. On that evening, as she was alighting from her car

in the vicinity of the hospital, she was approached by the

defendant and robbed at gumpoint. He made her undress

from the waist down. He then forced her into his car and,

it appears, took her to a shop owned by his father. There

he bound her hands and feet.

He then forced her into the trunk of his car. With Mrs.

Goidstone in the trunk, the defendant picked up his sister

at work and drove her home. He then drove the victim to

2 motel, forced her inside and raped he-.

On the next day, with Mrs. Goldstone bound and locked

in the trunk of the car, the defendant appeared at a subur-

ban court where charges of aggravated kidnaping, rape,

and armed robhery were pending against him. The case

was continued, and the defendant then drove to visit a

friend; Nettie Jones, at her apartment. While he was

there, people of the area heard cries for help coming fom

the trunk of his auto. Someone notified the police of the in-

cident. The defendant drove away from a crowd that had

gathered and proceeded to a tavern where he visited other

friends.

Early that evening, the defendant checked into another

motel. He forced Mrs. Goldstone into the the motel and

again raped her. Later, he forced her back into the trunk

and picked up his niece at a friend’: house and drove the

niece home. As he had done the di.’ before, he drove his

sister home from work and spent the evening visiting van-

ous taverns with friends.

In the meantime, police were searching for the defend-

ant’s car. The victim’s husband, Dr. James Goldstone, a

physician, after learning that his wife had not appeared for

class that evening, notified the police of her absence. The

victim’s car was found by Northwestern University secu-

rity officers. Early the following morning, Dr. Goldstone

received a phone cail from his wife in which she toid him

that she would be home soon. He heard a voice in the

background say, “Shut up bitch, teil him you'll be home in

about an hour.” The victim asked Dr. Goldstone if he had

called the police, and he told her to tei] the man whose

voice he had heard that he had not informed the police.

Officers investigating the incident at Jones’ apartment

obtained the license number of the car and learned that

the defendant had visited Jones. The police searched the

area for the auto without success and periodically watched

the defendant’s home, but the car was not located.

On April 1, at 6 am., the defendant released the victim

from the trunk of the auto. He gave her $1.25 and in-

structed her to take a bus home and not to call the police.

He then drove off. The victim, ignoring his instructions,

ran to the porch of a nearby house for heip. The person

who came to the door refused to allow her to enter, but he

did call the police. The defendant, who had only driven

around the block to see whether his instructions would be

obeyed, returned and ordered the victim off the porch. He

then took her to an abandoned garage and killed her,

shooting her in the chest and head. There was medical evi-

dence that the victim had been beaten once or more during

her captivity. .

The defendant was arrested at his home that afternoon

while he was washing the trunk of his car. Early the next

morning he gave a statement that was transcribed by a

court reporter. In the statement, the defendant admitted to

kidnaping, robbing and shooting the victim.

A number of the contentions of the defendant concern

the constitutionality of the death penalty statute (Ill. Rev.

Stat. 1977, ch. 38, par. 9—1). The issues raised have been

decided -adversely to him in recent holdings of this court,

and there is no necessity of discussing them in detail now.

This court has a number of times held that the grant of

discretion to the prosecutor under the statute to ask for

the death penalty is not unconstitutional. (£.g., People v.

Davis (1983), 95 Ill. 2d 1, 28; People v. Szado (1983), 94 I.

2d 327, 351.) Too, we have heid that there is no unconstitu-

tional vagueness in the statutory provision that the court

sentence the defendant to death if the jury determines that

“there are not mitigating factors sufficient to preclude the

imposition of the death sentence” (IL Rev. Stat. 1977, ch.

38, par. 9—1(g)), or in the provision that the, absence of a

“significant history of prior criminal activity” (Ill. Rev.

Stat. 1977, ch. 28, par: 9—1(cX1)) is a mitigating factor.

People v. Lewis (1981), 88 Ul. 2d 129, 144-46.

This court also has held that the sentencing standards

in the death penalty statute, which provide for the weigh-

ing of mitigating factors against aggravating factors, do

not offend due process. In People v. Brownell (1980), 79 IIl.

2d 508, 528-34, this court rejected a contention that the

statute is constitutionally inadequate because it does not

Set out specific standards as to the weight to be given to

the aggravating and mitigating factors. Because the sen-

tencing process upheld in Brownceil is a weighing process,

we have judged that there is no need to impose a specific

burden of proof upon the prosecution to show the absence

of mitigating factors. (People v. Free (1983), 94 Ill. 2d 378,

421.) We have also rejected the contention that the statute

is unconstitutional in permitting the jury to consider in the

second phase of the sentencing proceeding nonstatutory

aggravating factors (People v. Kubat (1983), 94 Ill. 2d 437,

504), and we have distinguished Henry v. Wainwright (5th

Cir. 1981), 661 F.2d 56, cert. allowed and cause remanded

(1982), U.S. 73 L. Ed. 2d 1326, 102 S. Ct. 2922,

which the defendant here cites for his argument to the

contrary. People v. Davis (1983), 95 IL 2d 1, 38; People v.

Free (1983), 94 ll. 2d 378, 427.

Too, we have rejected the argument that the sentencing

scheme is defective in failing to provide procedures for

comparative review. That review would entail providing for

the collection of data in all murder cases in this State for a

comparison between cases in which the death penalty has

been imposed and those in which it was not. (People v. Ku-

bat (1983), 94 Ll. 2d 437, 502-04.) Further, we have judged

that the statute does not violate article I, section 11, of the

Illinois Constitution (Il. Const. 1970, art. I, sec. 11), which

provides that all penalties be determined in accordance

with the seriousness of the offense and with the goal of re

storing the offender to useful citizenship. People v. Davis

(1983), 95 DL 2d 1, 28; People v. Free (1983), 94 Dl. 2d

378, 420-21; People v. Szabo (1983), 94 Il. 2d 327, 351;

People v. Gaines (1981), 88 Ill. 2d 342, 380-82.

The defendant also contends that his rights under the

sixth amendment (U.S. Const., amend. VI) were violated

by the trial judge’s refusal to allow him to serve as co

counse!. Prior to entering the plea of guilty, the defense

presented a motion asking that the defendant be allowed

to serve as co-counsei at trial. The defendant said that he

wanted ‘‘to represent (himse/f] with counsel.”” According to

his attorney, the defendant desired to conduct some parts

of the trial himscif. He did not want to appear pro se with

a lawyer in an advisory role. The court denied the motion

and required the defendant to choose between representing

himseif or being represented by counsel. The defendant

chose to have counsei represent him.

The State contends that this question is moot and has

been waived, because the defendant did not go to trial. He

pleaded guilty. Whether the issue is moot or not it is clear

that it has no merit. In People v. Ephraim (1952), 411 Ill.

118, a defendant claimed that his right to defend himseif

pro se was denied by a judge’s appointment of counse! in

his behalf. The trial court had initially granted the defend-

ant leave to conduct his own defense when the public de-

fender. who had been representing him withdrew from the

case. Later, however, the trial court, on its own motion,

appointed counse!, who represented the defendant at pre-

trial hearings, at ‘rial, and in post-trial motions.

This court’s review of the record showed that the

defendant had accepted counse! without making any objec-

tion. The acceptance of counsel, this court judged, was a

waiver of the right to appear pro se. It expiained:

“An accused has either the night to have counse/ act

for him or the right to act himself. As pointed out in

United States v. Mitchell ((2d Cir. 1943), 137 F.2d 1006}, it

is obvious that both of those rights cannot be exercised at

the same time. It follows that to allow a defendant to

avail himself to the hilt of his right to counsel, then allow

him to plead his right to defend himseif when the trial

conducted by counsel produces an unsatisfactory result,

would give far too great a chance to delay trial and to

otherwise embarrass effective prosecution of crime. (See

United States v. Gutterman [(2d Cir. 1945), 147 F.2d

540].) As indicated in the Mitchell case, a defendant must

be required to make his election between the two rights

at the proper time and in the proper manner.” People v.

Ephraim (1952), 411 Dl. 118, 122.

There is no reason to depart from the hoiding in

Ephraim that a defendant has no right to both self-repre-

sentation and the assistance of counsel. Federal courts

have held that no such right exists under the United States

Constitution (United States v. Halbert (9th Cir. 1981), 640

F.2d 1000, 1009; United States v. Daniels (5th Cir. 1978),

572 F.2d 535, 540), and the provision in our constitution re-

garding the right of seif-representation and the assistance

of counsel is identical in relevant part to the corresponding

provision in the constitution in effect when EpAraim was

decided. Compare I}. Const. 1970, art. I, sec. 8, with I.

Const. 1870, art. IT, sec. 9.

The defendant argues that his pica of guilty was not en-

tered voluntarily and intelligently. Due process requires

that a plea of ;rwilty not be accepted unless it appears from

the record that the plea was made knowingly, intelligently

and voluntarily. (Boykin v. Alabama (1969), 395 U.S. 238,

23 L. Ed. 2d 274, 89 S. Ct 1709.) To satisfy the require-

ments of due process, our Rule 402 (73 Ll. 2d R. 402) pro-

vides in part:

“In hearings on pieas of guilty, there must be substan-

tial compliance with the following:

(a) Admonitions to Defendant. The court shail not ac-

cept a plea of guilty without first. by addressing the

defendant personally in open court, informing him of and

determining that he understands the following:

(1) the nature of the charge;

(2) the minimum and maximum sentence pre-

scribed by law, including, when applicabie, the pen-

ality to which the defendant may be subjected because

of prior convictions or consecutive sentences;

(3) that the defendant has the right to plead not

guilty, or to persist in that plea if it has already been

made, or to plead guilty; and

(4) that if he pleads guilty there will not be a trial

of any kind, so that by pleading guilty he waives the

right to a trial by jury and the right to be confronted

with the witnesses against him.”

The defendant contends that his mght to due process was

violated because when he entered his plea of guilty he ‘‘did

not and could not have known the maximum penalty that

his plea could subject him to.”

This contention is simply not supported by the record.

At the time the defense announced that the defendant

wanted to change his initial piea of not guilty to guilty, the

court informed the defendant of the charges.against him.

The court then said: “I must advise you further that you

can be tried before this court or before a jury. If you are

found guilty of murder, under the circumstances of which

case (sic] the death penalty could be imposed.” The court

also informed the defendant of the prison terms he could

be given for the other offenses.

The prosecutor requested, “I ask that the defendant

also be admonished as to the amount of years he could get

on the charge of murder and that he might be eligible for

a life imprisonment in addition to the death penalty, your

Honor, as a possible penalty ***.” The court then stated,

“I must also advise you [that] in addition to the possibility

of the death penally under the Code as it exists in the

State of Illinois, there is a further provision for the imposi-

tion of sentence for the crime of. murder wherein it is pro-

vided the minimum term to be imposed shall be not less

than 20 years and not inore than 40 years.” The court ad-

vised the defendant that by pleading guilty he was waiving

his right to have a jury determine the question of guilt.

The defendant signed a waiver stating that he was forego-

ing his right to a jury trial and that he was pleading guilty

to the charges.

It is clear that the defendant was advised of the possi-

bility that the death penaity could be imposed. The defend-

ant contends that the judge’s language admonishing him

that he could receive the penalty after being found guilty

of murder implied that the death penalty could be imposed

only after a trial, not upon a pica of guilty. This contention

is not convincing. An admonition of the court must be read

in a practical and realistic sense. The admonition is suffic-

ient if an ordinary person in the circumstances of the ac-

cused would understand it to convey the required warning.

(People v. Krantz (1974), 58 MIL 2d 187, 193; People v.

Doyle (1960), 20 Ill. 2d 163, 167.) The defendant could not

reasonably have understood that by waiving the determina-

tion of guilt by the trial court or by a jury he would avoid

the imposition of the death penaity.

Moreover, there is no doubt that the defendant was

aware that he was eligibie for the death penalty even be

fore he announced his intention to change his plea to

guilty. Months before the plea of guilty was entered the de-

fense filed a motion asking the State to disclose whether

the death penalty would be sought. In open court, and in

the presence of the defendant, the State answered that it

need not make an announcement at that time. Too, on the

morning that the plea of guilty was entered, the defense

presented a written motion to compe! disclosure of the ag-

gravating factors the prosecution would introduce at a

death penalty’ hearing. The defendant, prior to acceptance

of his plea, acknowledged to the judge that his attorneys

had informed him of the consequences of pleading guilty.

Another contention made by the defendant is that his

sentence must be vacated because in reaching its verdict

the jury relied upon an aggravating factor not in evidence.

One of the statutory aggravating factors relied upon hy the

prosecution was that “the murdered individual was killed

in the course of another felony.” (Ill. Rev. Stat. 1977, ch.

38, par. 9—1(XG).) The other factor relied upon was that

“the iurdered individual was a witness in a prosecution

against the defendant, gave material assistance to the state

in any investigation or prosecution of the defendant, or

was an eye witness or possessed other material evidence

agninst the defendant.” (Ill. Rev. Stat. 1977, ch. 38, par.

9—1(LK7).) Here, as he did in the trial court, the defendant

contends that reliance upon the second factor should not

have been permitted.

The defendant bases this argument upon People v.

Browneil (1980), 79 Ill. 2d 508. There the defendant was

found guilty of murder, aggravated kidnaping and rape,

and was sentenced by the court. The court found that un-

der the evidence two aggravatng factors were present: (1)

that the victim was killed in the course of two other

felonies, (2) that the victim was an cyewitness against the

defendant. Finding no mitigating factors to preciude the

sentence of death, the court sentenced the defendant to

death.

According to Brownell’s written statement admitted at

trial, the defendant had picked up the victim, Louise M.

Betts, when she was hitchhiking. Armed with a knife, the

defendant drove to an open area and raped the victim. The

defendant then attempted to strangie her, but she was able

to get up and run from him. The defendant caught and

strangled her.

This court judged that the second aggravating factor

found by the court, that the victim was an eyewitness

against the defendant, was not established. It pointed out

that the trial judge apparently made the finding that the

victim was an eyewitness simply on the ground that the

victim could have later testified against the defendant as to

the aggravated kidnaping and rape. This court explained

that while the circumstances met the literal requirements

of the aggravating factor, the General Assembly must not

have intended that aggravating factor to be applied to such

a case. The court said:

“Otherwise, were we to adopt the trial court’s finding,

this aggravating factor could apply in every prosecution

for murder where another offense contemporaneously oc-

curs because the victim could have been a witness against

the defendant. Or, even more broadly, this aggravating

factor could apply to every prosecution for murder since

every victim, obviously, is prevented fror testifying

agazinst the «dicfendant. \Ve do not think the Gencral As-

sembiy intended the death penalty to be applied in every

murder case, and, if it did, the General Assembly could

eertainiy find a more dirvct way to express its intent

than through this aggravating factor.’" (People v.

Brownell (1989), 79 Ill. 2d 508, 526.)

This court concjuderd that the General Assembly must not

have intended the aggravating factor to be applied to a vic-

tim who was, or who may be. a witness as to the offenses

in the course of the murder. Instead, it must have been the

legisiature’s intent ‘‘to include situations where, during an

investigation or prosecution of « separate offense which

has previously taken place, a witness is killed in an at-

tempt to stymie the investigation or prosecution.” 79 Ill.

2d 508, 526.

We think that the circumstances here are sufficiently

different from those in Browneil to permit us to reach a

different conclusion. Here, the evidence showed that after

kidnaping and raping the victim, the defendant set her free

with instructions to go directly home and not to call the

police. She did not obey, however, and went to a house for

help. The owner of the house toid her he would call the po-

lice for her and he did so. The defendant was actuzily se-

cretly watching her, and he then took her off and mur-

dered her. The police were on thcir way to the scene in

response to the resident’s phone call at the time of the kill-

ing.

By his own admission, the defendant acted as he did he-

cause he knew Mrs. Goldstone was going to report the

crimes to the police. A police investigator testified to a

statement made by the defendant:

“He said al] right, that he would talk, that he didn’t

want to hurt Mrs. Guidstone, that he intended to leave

her go, and that he in fact let her go on her promise that

she would not got to the police. When he saw her go up

to the door at 10ith and Maryland, he reajized there was

no way that she wasn’t going to go to the police.”

In a statement transcribed by a court reporter, the

defendant said:

‘I drove further up the way on the same street and | got

out of my car and [ waiked around the corner on 104th

Street and I could see up to the next corner, which is

Maryland. I saw her on someiody’s porch and she was

talking to somebony, you know, cail the police, you know,

this and that, whoever she was talking to.”

Under these circumstances, the jury could have found

both that the murder was committed ‘“‘in the course” of

the other felonies, and that the vicum wus an eyewitness.

There is no significant difference between the circum-

stances here and a situation in which a defendant kidnaps

and rapes the victim, sets her free, and at a later ume kiils

her wile she is on her way to testify ayninst him. The lat-

ter situation cleariy is within this court’s understanding of

the stanitue considered in DrownelL We do not see why

the General Assembiy would not have intended the circum-

stances here to be within the statutory factor. The legisia-

ture’s clear concern, to protect persons who could assist in

the apprehension and prosecution of the accused (see Re-

marks of Senutor Knuppel, dcbate of amendment 3 to

H.B. 10, 80th Gen. Assem., June 1, 1977, at 21-25), is

served by such an interprctation.

The defendant’s next argument concerns the State's ex-

ercise of peremptory challenges. Here tie victim and most

of the prosecution's witnesses were white and the defend-

ant was biack. According to a motion filed by the defend-

art to discharge the jury selected, 28 of the 130 prospec-

ave jurors examined and excused during the voir dire

examination were hiack. Fifteen of the prospective black

jurors were excused for cause on the State's motion and

two were exciuded for cause on the defendant’s motion.

The State used 11 peremptory cha.enges to exciude the

other biacks.

The defendant argued in his motion that his mghts un-

der the sixth and fourteenth amendments were violated by

the State’s exercise of the peremptory challenges. He con-

tends that the court erred by not requiring the prosecution

to show a justification, as the defendant puts it, for the pe-

remptory challenges other than that of race.

The defendant’s briefs in this court in addition contain

statements regarding the composition of 43 juries in recent

capital cases in this State. Over haif of the juries were all

white. Most of the rest of the juries contained only one

black. How many peremptory challenges were exercised by

the defense and by the State is not indicated. There are no

other materials to illustrate that the State has reguiarly

and systematically through the exercise of peremptory

challenges excluded blacks or other minorities in case after

case. None of these materials, it would appear, were pre-

sented (o the trial court.

In People v. Dams (1983), 95 Ill. 2d 1, we rejected a

contention hy the defendant that the State's exercise of pe-

remptory challenges which resuited in an all-white jurv de

prived the defendant of a fair and impartial jury. We noted

that the contention was contrary to Swain v. Alabama

(1965), 380 U.S. 202, 13 L. Ed. 2d 759, 85 S. Ct $24, in

which the Supreme Court held that an exercise of peremp-

tory cnallenges which resulted in the selection of a jury

composed of white jurors did not of itself show a consttu-

tional violation. Under Swain. a constitutional issue of

equa] protection coud not anse unless there was a sysicm-

atic and purposefw exclusion of blacks because of race

from juries in cuse after case. 380 U.S. 202, 223, 13 L.Ed.

2d 759, 774, 85 S. Ct. 824, 897.

Ye noted too in Dams that though two States have not

followed Swain when interpreting provisions of their con-

stitutions (Commonwealth v. Soares (1979), 377 Mass. 461,

387 N.E.2d 499, cert. denied (1979), 444 U.S. 881, 62 L.

Ed. 2d 110, 100 S. Ct. 170; Penple v. Wheeler (1978), 22

Cal. 3d 258, 585 P2d 748, 148 Cal. Rptr. 890), we would

adhere to the Supreme Court's view.

The defendant here cites another decision, in which the

exclusion of blacks through the use of peremptory chal-

lenges was held to be a violation of Federal constitutional

law. That case, People v. Paywe (1982), 106 Ill. App. 3d

1034, was decided by the third division of the First District

of the appellate court. [t was held that the use of peremp-

tory challenges by the State to exclude blacks from a jury

-10-

during voir dire because they are biack is a violation of the

defendant’s right to a jury drawn from a fair cross section

of the community. The Payne court relied upon Taylor v.

Louisiana (1975), 419 U.S. 522, 42 L. Ed. 2d 690, 95 S.

Ct. 692, in which the Supreme Court held that it is Sunda-

mental to the sixth amendment guarantee of an impartial

jury that “the defendant in a criminal trial [have] the op-

portunity to have the jury drawn from venires representa-

tive of the community.” (419 U.S. 522, 537, 42 L. Ed. 2d

690, 702, 95 S. Ct. 692, 701.) The court in Taylor judged

that the Louisiana jury system violated this fair-cross-sec-

tion requirement because under the system a woman

would not be selected for jury service unless she had previ-

ously filed a written declaration expressing her desire to

serve as a juror, which system resulted in women being

called for jury service in grossiy disproportionate numbers

considering the number of eligible women in the commu-

nity. :

The court in Payne believed that the use of peremptory

challenges in particular cases to exclude members of any

discrete | becatse of their group affiliations also was

invalid, oeccuse otherwise “the constitutional mght to a

jury drawn from a fair cross section of the comiaunity

could he rendered a nuility through the uve of peremptory

challenges.” (Pvonle v. Payne (1982), 106 Ill. App. 3d 1034,

1037.) The Payne court said that Swain was not control-

ling in the circumstancus because in Swain the defendant's

allenge was hased upon the equal protection clause in

the fourteenth amendinent, not upon the sixth amendment.

The Payne court noted that Swuin was decided before the

Supreme Court held that the sixth amendment nights reiat-

ing to jury trials were appiicable to the Slates, and before

the court in Tuylor held that the fair-cross-section require-

ment was a guarantee of the sixth amendment. 106 I].

App. 2d 1034, 1040-43.

The division of the appellate court that decided Payne

has followed its decision in subsequent cases. (People v.

Gilliard (1983), 112 Ill App. 3d 799; People v. Gosderry

(1982), 109 Ill. App. 3d 674.) Payne has been considered

and rejected, however, by two other divisions of that court.

People v. Newsome (1st Dist., 2d Div. 1982), 110 Ill. App.

3d 1043; Prople v. Teaque (ist Dist.,.1st Div. 1982), 108 Ili.

App. 3d 891.

Payne ioes not satisfactorily meet the questions which

must be addressed in considering the probiem.

«¥4

The Supreme Court in Swain concluded that the impor-

tance of the peremptory challenge in obtaining an unbiased

jury justified its use in particular cases against members of

individual groups based on their group affiliations. The

court stated:

“In providing for jury trial in criminal cases, Alabama

adheres to the common-law system of trial by an impar-

tial jury of 12 men who must unanimously agree on a ver-

dict, the system followed in the federal courts by virtue

of the Sixth Amendment. As part of this system it pro-

vides for challenges for cause and substitutes a system of

strikes for the common-law method of peremptory chal-

lenge. Alabama contends that its system of peremptory

strikes—challenges without cause, without explanation

and without judicial scrutiny—affords a suitavle and nec-

essary method of securing juries which in fact and in the

opinion of the parties are fair and impartial. This system,

it is said, in and of itseif, provides justification for strik-

ing any group of otherwise qualified jurors in any given

case, whether they be Negroes, Catholics, accountants or

those with blue eyes. Based on the history of this system

and ils actual use and operation in this country, we think

there is merit in this position.” Swarm uv. Alabama (1965),

380 U.S. 202, 211-12, 13 L. Ed. 2d 759, 767-68, 85 S. Ct.

824, 831.

The court then traced the history of the pere:iptory

challenge and found that it had “very old credentials.” (350

U.S. 2N2, 212, 13 L. Ed. 2d 759, 768, 85 S. Ct 824, S31.)

Its function, the court explained, is to eliminate extremes

of partiality on both sides and to assure the parties that

the jurors will decide the case on the evidence alone. The

availability of peremptories, the court pointed out, permits

couns’] to ascertain the possibility of bias through probing

questions at voir dire. and it removes the fear of arousing

a juror’s hostility through examination and challenge for

cause. The court also noted that “{ajlthough historically the

incidence of the prosecutor’s challenge has differed from

that of the accused, the view in this country has been that

the system should guarantce ‘not only freedom from any

bias against the accused, but also from any prejudice

against his prosecution. Between him and the state the

scales are to be evenly held.’ 380 U.S. 202, 220, 13 L.

Ed. 2d 759, 772, 85 S. Ct. 824, 835, quoting Hayes v. Jis-

souri (1887), 120 U.S. 68, 70, 30 L. Ed. 578, 580, 7S. Ct

350, 351.

The court concluced:

“The essential nature of the peremptory challenge is

-12-

that it is one exercised without a reason stated, without

inquiry and without being subject to the court's control.

*** It is often exercised upon the ‘sudden impressions

and unaccountable prejudices we are apt to conceive upon

the bare looks and gestures of another [citation], upon a

juror’s ‘habits and associations’ (citation], or upon the

feeling that ‘the bare questioning (a juror’s] indifference

may sometimes provoke a resentment’ [citation]. It is no

less frequently exercised on grounds normally thought ir-

relevant to legal proceedings or official action, namely,

the race, religion, nationality, occupation or affiliations of

people summoned for jury duty. For the question a prose-

cutor or defense counsel must decide is not whether a ju-

ror of a particular race or nationality is in fact partial,

hut whether one from a different group is less likely to

be. It is well known that these factors are widely ex-

plored during the ror dire, by hoth prosecutor and ac-

cused [citations]. This Court has held that the fairness of

trial by jury requires no less. (Citation.] Hence veniremen

are not always judged solely as individuals for the pur-

pose of exercising peremptory challenges. Rather they

are challenged in light of the limited knowledge counsel

has of them, which may include their group affiiiations, in

the context of the case to be tried.

With these considerations in mind, we cannot hoid

that the striking of Negroes in a particular case is a de-

nial of equal protection of the laws. In the quest for an

impartial and qualified jury, Negro and white, Protestant

and Catholic, are alike subject to being challenged with-

out cause. To subject the prosecutor's challenge in any

particular case to the demands and traditional standards

of the Equal Protection Clause would entail a radical

chance in the nature and operation of the challenge. “°*

In the light of the purpose of the peremptory system

and the function it serves in a pluralistic society in con-

nection with the institution of jury trial, we cannot hold

that the Constitution requires an examination of the pros-

ecutor’s reasons for the exercise of his challenges in any

given case.” 380 U.S. 202, 291)-22, 13 L. Ed. 2d 759, 772-

73, 85 S. Cl. §24, 836-37.

We consider that the authority of Swain was not less-

ened because of the recognition of a sixth amendment fair-

cross-section requirement in Taylor v. Louisiana (1975),

419 U.S. 522, 42 L. Ed. 2d 690. 95 S. Ct. 692. The court

in Taylor held that it is fundamental to the sixth amend-

ment righ! to a jury trial that the selection of a petit jury

be from a representative cross section of the community.

The issue, as the court put it, was, “whether the presence

of a fair cross section of the community on venires, panels,

-13-

or lists from which pent junes are drawn is essential to

the fulfillment of the Sixth Amendment’s guarantee of an

impartial jury trial in cmminai prosecutions.” 419 U.S. 522,

526, 42 L. Ed. 2d 690, 696, 95 S. Ct. 692, 696.

There was no retreat in the Taylor opinion from the

view that it is an essential part of our system of trial by an

impartial jury that both sides be allowed in particular cases

to exercise peremptory challenges on any ground they se

lect. It appears that the complaint addressed in Taylor is

the systematic exclusion of a group from the jury system,

not from any particular jury. This is in harmony with the

suggestion in Swain that the systematic exclusion of liacks

by peremptory challenges in case after case regardless of

the particular circumstances invoived ‘vould raise a const-

tutional issue. (S80 U.S. 202, 223, 13 L. Ed. 2d 759, 774,

85 5. Ct. 824, 837.) Morcover, the limited character of the

Taylor holding is clear from the following statement, which

appears at the conclusion of the ypinion:

“It should also be emphasized that in holding that

petit juries must be drawn from a souree fairly represent:

ative of the community we impose no requirement that

petit juries actually chosen must mirror the community

and reflect the vamous distinctive groups in the ponula-

tion. Defendants are not entitled to a jury of any particu-

lar composition feitation]; but the jury wheels, pools of

names, panels, or venires from which juries are drawn

must not svstematienlly exclude distinctive grouns in the

community and thereby fail to he reasonally representa-

live theres f."” 419 TIS. 522, 538, 42 L. Ed. 2d 690, 702-

03, 95 S. Cu. 692, 702.

The Court of Appeals of New York recently rejected a

request that it no longer follow the holding of the Supreme

Court in Swain. The court made clear its understanding

that the holding in Swain had not been affected by Taylor:

“The issue of minority representation on criminal

juries has been the subject of several-decisions by the Su-

preme Court. These decisions draw a critical distinction

between the jury pool, which is the group of prospective

jurors from which the litigants will select a jury to hear

their particular case, and the jury that is ultimately cho-

sen to serve. The Sixth Amendment requires that the

jury pool be sciected from a representative cross section

of the community (Tiler v. Louisiana ((1975)], 419 U.S.

522, 42 L. Ed. 2d 690, 95 S. Ct. 692), and distinctive

groups in the community may not be systematicaily ex-

cluded from the pool. Once the jury pool is selected, how-

ever, prospective jurors may then be exciuded through

“14-

the exercise of cause chaiienges and peremptory chai-

lenges." (People v. MeCray (1982). 57 N.Y.2d 542, 545,

443 N.B.2d 915, 916-17, 457 N.¥.S.2d 441, 442-43.)

Even the court in People v. Wheeler (1978), 22 Cal. 3d 258,

284-85, 583 P2d 748. 767, 148 Cal. Rptr. 890, 908, which

we referred to earlier, recognized that if the Supreme

Court were presented with the issue we are considering in

terms of the sixth amendment fair~ross-section require-

ment, the court probably would not decide the question dif-

ferently than it did in Sivain.

Parenthetically, we would observe that since it was fol-

lowed in Commonwealth v. Soares (1979), 377 Mass. 461,

387 N.E.2d 499, Wheeler has been followed in few in-

stances. (E.9., Slate v. Cresmn (1980), 94 N.M. 486. 612

P2d 716.) Most courts have declined to foilow it (S/ate v.

Stewort (1479), 225 Kan. 410, 591 R2d 166; Lawrence v.

Slate (1982), 51 Md. App. 575, 444 A.2d 478; State v. Sims

(Mo. Ct. App. 1982), 639 S.W.2d 105; Commonwealth v.

Hendersun (1981), 197 Pa 23. 488 A.2d 951; State v.

Uceru (1982), RI. 450 A.2d 809; State v. Grady

(1979), 93 Wis. 2d 1, 286 N.\.2d 607; see People ». Me-

Cray (1982), 57 N.Y.2d 512, 443 N.E.2d 915, 457 N.Y.S.2d

44] (not mentioning Wheeler hut rejecting the Wheeler ap-

proach); of. ocpel vr. United States (D.C. 1981), 424 A.2d

449, cert. dorierd (1981), 454 U.S. 1087, 70 L.Ed. 2d 483,

102 S. Cu SEO (judizing Svein dispesitive)). Two of the

enwts expressly cniicized Wheeler as effectively eliminat-

ing the peremptory challenge as a useful tool in assuring

an impartial jury. Commonwenlth v. Zenderson (1981), 497

Pa. 23, 42S A.2d 951; Slude v. Grady (1979), 93 Wis. 2d 1,

286 iv. W.2d 607.

There has been criticism of the reasoning of the

Wheeler court. (See S. Saltzburg & M. Powers, Peremptory

Challenges and the Clash Between Impartiality and Group

Representation, 41 Md. L. Rev. 337, 359-60 (1982).) It has

been observed that lfeeler “has found surprisingly little

support” and Uat “the overwhelming majority of courts

still apply Sieain's systematic exclusion test.” Comment,

The Sixth Amendment: Limiting the Use of Peremptory

Challenqes, 16 J. Mar. L. Rev. 349, 358 (1983).

Another contention of the defendant is that there was

error in the excusing for cause of certain jurors. In

Witherspoon v. Illinois (1968), 391 U.S. 510, 20 L. Ed. 2d

776, 88 S. Ct. 1770, the Supreme Court held that prospec-

tive jurors could not be excused for cause simply because

-15-

they had scruples aguinst the infliction of the death pen-

alty, or voiced general objections to capital punishment

The court did not hold improper, however, the exclusion of

jurors who made it clear that they would automatically

vote against the imposition of the death penalty regardless

of evidence presented to them. The Supreme Court has not

deviated from the rule in Witherspoon. The State can ‘“‘ex-

clude prospective jurors whose views on capital punishment

are such as to make them unable to follow the law or obey

their oaths.” Adams v. Teras (1980), 448 U.S. 38, 48, 65 L.

Ed. 2d 581, 592, 100 S. Cu. 2521, 2528.

The defendant claims that the exciusion of 12 prospec-

tive jurors was in violation of [Witherspoon Our review of

the record satisfies us that none of those jurors was ex-

cluded simply for expressing general objections to the

death penaitv.

Contrary to the defendant's contentions, the exclusion

of four of the 12 jurors had no reference to the death pen-

ality. Mrs. Jean Samp was not chailemged by the State; she

was excused at her own request. She believed in capital

punishment but she told the court that she had a strong

unwillingness to play God as a juror. She said that she hon-

est!y felt that she could not be an unbiased juror, and that

she would he partial to one side. The court excused her al-

ter ascertaining that she could not lay aside her personal

opinions and render an inpertial verdict on the evidence.

Clearly a trial court can excuse a juror who states tat she

cannot he impartial. £.g., People v. King (1973), 54 Ul. 2d

291.

Lucila Kentris was excused not because of scrupies

agninst the death penalty, but because the court judged

that she lacked capacity to understand her duties as a ju-

ror. She gave contradictory answers, and insisted that she

would presume that the defendant was innocent despite his

plea of guilty. The prospective juror’s obvious confusion

during questioning justified the court’s statement, “I am

not aware that she understood any of anyone's questions,

*** for] the nature of the proceedings, despite the fact that

it was explained to her by each attorney and by the court,

and I'm not aware whether or not she comprehended what

was occurring.”

Joan Carter was also excused for reasons other than

her feelings as to the death penalty. She was not asked

about her attitude in that respect. She did state, though,

that she did not know whether she could apply the law as

instructed in instances where sie disagreed with the law.

Lf the law conilicted with her “inner feelings.” she said,

she would foilow her feelings.

Another juror, Lovell Wilkinson, was excused after stat-

ing that he could not fairly and impartially serve as a ju-

ror. He, in fact, believed in the death penalty, but was up

set that it was not applied in every murder case after a

finding of guilt.

The restriction upon the exclusion of jurors expressed

in Witherspoon was not applicable to the above-named ju-

rors. !"itherspoon does not prohibit the exclusion of jurors

who state that they will not be able to follow the law and

render an impartial verdict based on the evidence. Adams

v. Teras (1980), 448 U.S. 38, 65 L. Ed. 2d 581, 100 S. Ct

2521.

The other jurors were properly excluded for cause.

They did express views against capital punishment that

woud require them, they said, to vote against the death

penalty whatever the evidence presented to them might be.

Hereafter is the relevant interrogation of these jurors.

Juror Phillip Smith:

“Q. [Prosecutor]: Okay, do vou have any conscientrous

or religious scruples against the imposition of the death

penalty, sir?

A. Yes, | do.

Q. You will be against applying that, is that correct?

A. Yes.

Q. No matter what the evidence says, in other

words, mht?

A. Yes.

Q. (Defense Counse!]: Mr. Smith, the attitude you

have about the death penalty, is that to the extent that

any kind of a case, no matter how severe or how brutal it

is?

A. Yes.

Q. [Defense Counsel]: Can you think of any crmme

that may come out of the neighborhood that you live in

that may he so brutal that the death penalty might be ap-

propriate?

A. No.”

Juror Lois Marquez:

“Q. [Prosecutor]: *** Do you, sir, have any conscien-

tious or religious serupics against the imposition of the

death penalty in a proper case?

A. I don’t believe in capital punishment.

-17-

Q. [Blecause of your helief. do you believe that you

could never impose capital punishment?

A. I don’t think I could.

Q. So what you are saying is that no matter what ev-

idence would be shown to you, you cuuidn’t impose the

death penalty, yes or no?

A. No, I couldn't."

Juror William A. Occomy told defense counsel that he

did not consider: that he was qualified to serve as a juror in

a sentencing proceeding.

“Q. (Defense Counsel]: °** (Cjan you promise me that

you will follow the law as the judge instructs you to do so

and can you put aside the feeling that this decision is one

that makes you certainly uncomfortabie, one that you

would prefer not to do?

A. Frankly speaking. no.

Q. You don't feel you can follow the law as the judge

gives it {o you?

A. Frankly, well, let me put it this way, | guarantce

you now, my nome will never be on that piece of paper

for a death verdict.”

Juror Ruthie Norwood:

“Q. [Prosecutor]: All right, do you have any feelings

with respect to capital punishment?

A. I don’t believe in it.

Q. Okay: are your feelings of the type that no matter

what the evidence in the cuse showed, you would not be

able to vote for cxpital punishment?

A. Right, | wouldn't.

Q. [Defense Counsel}: Mrs. Norwood, are you saying

that in any case, no matter how extreme, you would not

even consider the imposition of the death penalty?

A. I just don’t believe in it.”

Juror Vincent Ross. a minister, had religious scrupies

against the death penaity.

“Q. [Prosecutor]: °°° [I]s [your religious belicf] such

that you feel you could not he in a position to sign a ver-

dict that would mandate somebody's death?

A. No, | could not.

Q. No matter what the facts are. when it came right

down to it, when they slid the piece of paper over to you,

you would’t be able to sign it, would you?

A. No.

THE COURT: Now, this stage before the trial has

-18-

begun, are you stating that you would not sign a verdict

form mandating the death penalty regardless of the facts

and circumstances that might emerge in the course of the

proceedings?

Is that what you're saying, sir?

THE WITNESS: Yes.”

Juror Francis Murray remembered reading about the

murder in a newspaper articic. In regard to the death pen-

alty issue he said:

“Q. [Defense Counsel]: Mr. Murray, if a verdict form

was handed to you that dictated that the death penalty

should be applied and you thought the case was a proper

one, it should be appiied, would you sign such a verdict?

A. I don’t think I can live with it.

Q. Do you have—do you feel the death penalty is in

fact warranted in a proper cnse?

A. I don't believe in the death penalty.

Q. Is this helief that you have in the death penaity

based upon a relijgious or moral feeling?

A. It's a morai feeling.

Q. [Defense Counsel]: When you tell us, Mr. Murray,

that you de not believe in the death penalty, are you say-

ing to us that you do not believe the death penalty is ever

applicable in any kind of case?

A. No, | doen't believe T could judge anvbody in a life

and death situation. I couldn't.”

Juror Mary lou Hill. after being somewhat vague as to

the death penalty in response to quesuoning by defense

counsel, said:

“Q. Do vou feel that you would be capabie of signing

a verdict that would warrant the death penaity in any

case?

A. I think that would be very hard for me to do.

Q. [Frosecutor}: No, that’s an equivocal statement.

Could you or could you not?

A. The way | feel now, no.

THE COURT: Ma’am, regardless of the facts and cir-

cumstances that might emerge during the course of this

hearing, are you, irrevocally, committed before the hear-

ing has hegun, to vote against the death penalty?

A. Your Ilonor, | don't believe in the death penaity.

Q. Weil, then you would answer that question how,

yes or no?

A. Would you repeat that question again?

-19-

Q. Regardless of the facts or circumstances that

might emerge in the course of the proceedings in this

case, by you now— are you irrevocably committed

against— before the hearing— the “eath penalty and not

to sign a verdict form if that verdict form would man-

date?

A. Yes.

Q. That is your opinion right now?

A. Yes.”

The parties disagree whether Delores Hudson was ex-

cused because of her views agninst the death penalty. We

consider from an examination of the record that she was

excused for this reason, but in any event, any possible er-

ror in regard to I""i/herspoon was waived. During question-

ing by defense counsel she stated:

"Q. *** [Dlo you have any questions you have to ask

me, at this point, about the proceedure about what we are

about— about what's going to*happen in the situation, if

vou are selected as a juror?

A. Not renily, but [ would like to say one thing, and

1 don’t know if | has a right to ask, but I have a feeling

about the cleetrice char.

Q. What feelings do vou have?

A. [don’t like it.

Q. You den't like the gleetrie chair? Miss Hudson, do

you feol that in certain cuses— or can you conceive of the

situation where the death penalty would be an apprupri-

ate punishment?

A. l— J— | was always taueht thou shail not kill,

and T would feel, you know, | would sit there and—no

matter what this person done, vou know, to me, and [

will sit there and write down that the death penalty, and

I don’t believe in it, vou know, killing anybody, and that

would be a burden on me, that my vote was in Uiere to

do this action, and | don't believe in it, you know,

Q. Weil, let me ask vou this.

[Prosecutor]: Cause.

[Defense Counsel]: May l—

[Prosecutor]: Mution for cause.

THE COURT: Motion for cause is overruled. Coun-

sel, there is a motion for cause.

[Defense Counsel]: Fine, Judve. May I continue ques-

tioning or is the Court jroing to rule on it this moment?

[Prosecutor]: | think it’s sufficient right now. The

lady stated, without leading questions, what her feelings

are. ,

{Defense Counsel]: Your Ilonor, | am questioning, at

this point, or is (the prosecutor}.

|Prusecutor}: | made my motion, Judge.

[Defense Counsei|: Your Honor, Judge, | am sure you

heard (the State’s Attorney]. 1 am sure you heard {the

State's Attorney]. IIe doesn't have to repeat himself.

THE COURT: I think [the prosecutor] has a mght—

[Defense Counsel]: After we are done. of course.

THE COURT: All right. Let us move on post haste.

Q. I am going to try and complete the question, if I

am able to.

The State is going to be seeking the death penalty

against my client. Would you be able to wait and listen to

here [sic] all the evidence before you make your decision

on whether or not the death penalty should be applied?

[Prosecutor]: Object.

THE GOURT: She may answer.

A. THE JUROR: Weil. just like I toid you, I don’t

believe in the death chair, so—

[Defense Counsel]: | have no further questions,

Judge.

TIE COURT: You may step down, ma'am. Thank

ou.

: (Juror is excused)"

In regard to this juror, it is argued that the trial court

denied, not allowed, the motion for cause because of her

attitude toward the death penalty. While the court at one

point in the above excerpt did say that the motion was de

nied, it is obvious it was a tentative or nonfinal ruling to

Permit the questioning by the defense to continue. The

court kept the question open and the defense questioning

continued. The court’s final ruling came after the defense

had concluded its questioning. The court recessed, and

upon resuming the proceeding stated that she had been ex-

cused for cause.

The defense noted an objection to her exclusion for the

record, but the ground of the objection was not that she

was being excluded in violation of Witherspoon. The stated

ground of the objection was that the defense did not have

a sufficient opportunity to question the prospective juror. A

specific objection, of course, waives all grounds not stated.

(Town of Cicero v. Industrial Com. (1950), 404 Ill. 487,

495; E. Cleary & M. Graham, Mlinois Evidence sec. 103.2,

at 6 (3d ed. 1979).) The defendant does not assert the “‘in-

sufficient opportunity’ ground here.

The defendant says that as to these jurors, the court

did not use the precise language of the !Vitherspoon test of

exclusion for cause. Our decisions have stressed, however,

that we must look to the substance of the answers given,

not simply to whether the form of the questions and an-

swers matched the pattern described in Witherspoon, and

we recognize the superior position and opportunity of the

trial judge to ascertain a juror’s meaning. (People v. Free

(1983), 94 Ill. 2d 378, 402-03; People v. Kubat (1983), 94 Ml.

2d 437, 499.) As this court observed in People v. Gaines

(1981), 88 Ill. 2d 342, 356: “{I]t is appropriate to point out

that the distinction drawn in [Vitherspoon between a

venireman'’s general opposition to the death penalty and

his unwillingness to vote for its imposition is a sophisti-

cated one which a prospective juror may not readily grasp.

While it is the duty of the trial judge to propound the key

questions in a form which will be understood and with

enough specificity to admit of an unambiguous response,

we do not read |Vitherspoon as prescribing a set cate-

chism, or as requiring a venireman to express himself with

meticulous preciseness.”

The defendant also complains that a photograph of the

victim taken by her husband was highly prejudicial and

should not have gone to the jury room at the stage of the

proceeding when the jury was deliberating whether to im-

pose the death penalty. During the first stage when it was

being determined whether the defendant’s conduct had

made him liable for the death penalty, the State asked to

have the portrait photograph sent into the jury room. A

defense objection was sustained on the ground that the

photograph might excite sympathy for the victim from the

jury and that it did not accuratciy portray the victim’s ap-

pearance immediately prior to the crime.

During the second stage of the sentencing heanng, the

defendant testified under cross-examination in part:

“Q. Did you notice any changes in her physical condi-

tion?

A. Not at that time, no.

Q. Did you notice any bruises on her face?

A. I don’t recall looking fur any bruises.

Q. You don't recall looking for any? Hernando Wili-

— how many times did you hit Linda Goldstone in the

A. I don’t recall hitting her in the face at ail.

Q. You don't recail?

A. No, I do not.

Q. Did you hit her at alleduring the whole 36-hour

period of time that you heid her in captivity?

A. I could have.

Q. You could have?

A. That's right.

Q. Well, did you see the photographs that the jury

saw of the body of Linda Goldstone, her face, showing

the bruises?

A. No, I did not see the pliotographs.

Q. Well, didn’t you notice any—at the time that you

let her off, did you notice any bruises on her face?

A. No, I don’t remember.

Q. You don't remember. Weill, did she look the same,

Mr. Williams. as when you first picked her up?

A. No, she didn’t look the same.”

After being shown the lifetime photograph of the victim,

the defendant was asked:

“Q. (Ils that the way she lookcd when you picked her

up?

° A. (No response.)

Q. Her face?

A. Yes.

Q. And there was quite a change, wasn’t there, from

the time that you let her off, right?

A. There had been some changes, yes.””

A photograph of the victim's body at the scene of her mur-

der was sent to the jury room during the second stage of

the hearing along with the portrait photograph. The

defendant argues that if the portrait photograph was con-

sidered prejudicial at the first stage, it should have been in-

admissible at the second stage as weil.

It is clear that photographic evidence having a natural

tendency to establish the facts in controversy is admissible.

(People v. loster (1979), 76 Ill. 2d 365; People v. Sperk

(1968), 41 Ill. 2d 177; People v. Jenko (1951), 410 Ill. 478.)

In People v. King (1963), 29 Ill. 2d 150, 154, we said:

“All evidence concerning ‘the physical facts and circum-

stances showing a killing are admissibic in evidence as

tending to throw light on the transaction and to reveal

the nature’ of the crime. (Citation.] Also ail facts of the

erime which show the aggravated nature of the offense

are relevant to the punishment (o be set by the jury.”

The life or portrait photograph was admissible at the sec-

ond stage to evidence the beating inflicted by the defend-

ant. The medical examiner had testified that there were

numerous marks and bruises on the victim's body, includ-

ing her face. The defendant testified that when he picked

up the victim she looked as she did in the portrait photo-

graph. The photographs considered together showed the

condition of the victim hefore and after the defendant’s

criminal conduct. The photographs are particularly relevant

in light of the defendant's professed inability to remember.

whether he struck the victim.

“{Qjuestions relating to the character of the evidence

offered, and the manner and extent of its presentation, are

largely within the discretion of the trial judge, and the ex-

ercise of that discretion will not be interfered with unless

there has been an abuse to the prejudice of the defend-

ant.” People v. Jenko (1951), 410 Ll. 478, 482; People v.

Foster (1979), 76 Dl. 2d 365, 376; People v. Nicholls (1969),

42 Dl. 2d 91.

Following his arrest, the defendant signed a 30-page

written statement in which he confessed to the crimes

charged and generally admitted the facts set out above.

The trial court, after a pretrial hearing, found that the

statement was voluntarily made. During the first phase of

the sentencing hearing, each juror was given a copy of the

statement over the defermant’s objection, so the jurors

could read along as the statement was read into the record

by one of the prosecuting attorneys. The defendant admits

that either method of communicating is proper, bu< con-

tends that the use of both methods resulted in overempha-

sis of the defendant’s statement, which violated the defend-

ant’s right t‘o due process. The overempliasis was

agpravated, the defendant says, by the fact that the state

ment went to the jury room during deliberations.

Although the defendant acknowiled¢es in his brief that

it is within the trial court’s sound discretion to determine

what documentary evidence shall be sent to the jury room

(People v. Caldwell (1968), 39 Ill. 2d 346), he cites People v.

Spranger (1924), 314 Ill. G02, for the proposition that it is

improper to allow a defendant's written statement to go

with the jury during deliberations. In Caldweil, which over-

ruled Spranycr to the extent it was contrary, this court

said:

“Spranger, however, did not hold that it was reversible

error to permit the defendant’s confession to go to the

jury room. °*°

We think it significant that every criminal conviction

in Illinois since 1924 wherein the taking of a written con-

fession to the jury conference room was claimed as re-

versible error has been factually distinguished from

— on appeal and affirmed.” (39 Ill. 2d 346, 356-

57.

Whether evidentiary items should be taken to the jury

room rested with the discretion of lhe trial court, whose

decision will not be disturbed absent the showing of an

abuse of discretion to the prejudice of the defendant. (Peo-

ple 1. Greer (1980), 79 Ill. 2d 103; People v. Magdy (1967),

37 Ll. 2d 197.) There was no abuse of discretion here.

In People v. Willy (1921), 301 I. 307, which is cited by

the defendant, it was said: “To permit counsel to read to

the jury from the transcript written up by the shorthand

reporter or from the attorney’s own memorandum would

tend to over-emphasize the testimony of the witness which

is thus re-read.”’ (301 IJ. 307, 328.) The excerpt is not in

point. Unlike in Villy, there was no testimony here by the

defendant and no rereading of it to the jury. The jurors

were provided copies of the statement so they could follow

it as it was being read to them. The statement was quite

lengthy. The events described covered a period of three

days and involved several locations. The copies were col-

lected from the jurors after the statement had been read

into the record. As we stated above in our discussion of

the photographs admitted into evidence, the manner and

extent of the presentation of evidence are largely within

the discretion of the trial court. People v. Foster (1979), 76

I). 2d 365; People v. Jenko (1951), 410 Ill. 478.

In any event, certainly it was not reversible error to

give a copy of the statement to cach juror. The defendant's

guilt was not at issue and must, if not ail, of the facts in

the statement were independently verified. The jurors

were later properly alowed to take the statement to the

jury room, where they had the opportunity to read it

There was no substantial prejudice simply because the ju-

rors had an earlier opportunity to read the confession.

The defendant also contends that he was deprived of

his sixth amendment right to assistance of counse! by the

introduction of testimony from a former law clerk who had

appeared for him at a hearing on charges of eariier cnmi-

nai conduct.

The defendant, with the victim hound and locked in the

trunk of his car, appeared in court in Maywood on March

31, 1978, on pending charges for the aggravated kidnap-

ing, rape, and armed robbery of Aline Krone. Kevin

Bresiin was a law student when under our Rule 711 (73 Ill.

2d R. 711) he appeared in court on behalf of the defendant.

Bresiin, who had never met the defendant before, con-

versed with Williams before approaching the bench, at

which time the State requested and receiver a continuance.

At the trial for the crimes against Linda Goldstone, the

defendant moved to bar Bresiin's testimony on the ground

that his testimony was a violation of the attorney-lient

privilege. The character of the privilege is illustrated in

Disciplinary Rule 4—101 (87 Ill. 2d R. 4—101). It provides,

in part:

(a) ‘Confidence’ refers to information protected by

the attorney-client privilege under applicable law, and ‘se-

cret’ refers to other information gained in the profes-

sional relationship that the client has requested be held

inviolate or the disclosure of which would be embarrass-

ing to or would likely be detrimental to the client.

(b) Except when permitted under Rules 4—101(c)

and (d), a lawyer shail not knowingly, during or after ter-

mination of the professional relationship to his client:

(1) reveal a confidence or secret of his client;

(2) use a confidence or seerct of his client to the

disadvantage of the client; or

(3) use a confidence or seerct of his client for the

advantage of himself or of a third person, unless the

client consents after full disclosure.”

The motion was denicd and Breslin testified as to Wil-

liams’ demeanor during their March 31, 1978. meeting. It

was Breslin'’s testimony that Williams appeared articulate,

well-dressed, calm and quite normal. Bresiin did not relate

the content of his conversation with the defendant, except

to state that the defendant responded when Breslin called

his name and told Breslin the nature of his father’s busi-

ness.

Although the attorney-client privilege does not usually

extend to communications with a law student (8 Wigmore,

Evidence sec. 2300 (McNaughton rev. ed. 1961)), Bresiin

was a person authorized under our Rule 711 to appear in

court for limited purposes. As such, we will consider for

purposes of this argument that he was acting as Williains’

legal representative in the place of a licensed attorney and

assume that the privilege extended to secrets or confiden-

tial communications hetwcen Breslin and the defendant.

The essential clements for the creation and application

of the attorney-client privilege have been defined as fol-

lows:

(1) Where legal advice of any kind is sought (2) from a

professional leai adviser in his capacity as such, (3) the

communications relating to that purpose, (4) made in con-

fidence (5) by the client, (6) are at his instance perma-

nently protected (7) from disclosure hy himself or by the

legal adviser, (8) except the protection be waived.’ 8

Wigmore, Evidence. sec. 2292 (McNaughton Rev. 1961).”

(People v. Adam (1972), 51 Ill. 2d 46, 48.)

The purpose of the privilege is to promote the free flow of

-26-

communication between attorneys and their clients by re

moving the fear of a compeiled disclosure of confidential

information. (Taylor v. Taylor (1977), 45 Ul. App. 3d 352; 8

Wigmore, Evidence sec. 2291 (McNaughton rev. ed. 1961).)

The privilege ‘is based upon the confidential nature of

such communications.” People v. Speck (1968), 41 I. 2d

177, 200.

We consider that the defendant was not prejudiced by

Breslin’s testimony. The defendant’s appearance and de-

meanor were not confidential communications. They were

subject to be observed by anyone present in the courtroom.

In fact, Joseph Kazmierski, one of the prosecutors in the

Krone rape trial, also testified at Williams’ murder ‘rial

concerning his demeanor at the March 31, 1978, hearing.

A defendant’s voluntary disclosure of informatiorr or other

matters subject to being testified to in the presence of op-

posing counsel or any other third person who is not the

agent of the defendant or his attorney is not privileged.

(People v. Werhollick (1970), 45 Ill. 2d 459: People v. Ryan

(1964), 30 Ill. 2d 156.) The defendant argues that although

other people may have observed him at the same time as

Breslin, only Breslin could really testify to his demeanor.

Breslin’s personal impression of Williams’ appearance,

however, cannot be said to relate to “legal advice from a

professional legal adviser in his capacity as such.” (Sec 8

Wigmore, Evidence sec. 2292 (McNaughton rev. ed. 1961).)

In merely observing the defendant as a person in the

courtroom, Breslin was not acting in a representative ca-

pacity.

Nor was the defendant prejudiced by Breslin's discio-

sure that Wiliams had related the nature of his father's

business and that Williams had responded to his name. As

a general rule the attorney-client privilege does not extend

to the identity of an attorney's clicnt unless he would be

prejudiced in some substantial way. (People v. Doe (1977),

55 Ill. App. 3d 811.) Since Williams pleaded guilty, his iden-

tity was not in issue and he was not prejudiced by

Breslin’s remark that he had responded to the calling of

his name. Bresiin did not disclose the nature of the elder

Williams’ culling. but only that he had been informed of it

by the.defendant. This information could not prejudice Wil-

liams.

After the defendant plended guilty, he orally and in

writing requested a presentence investigation. During the

second phase of the sentencing hearing, that is, the phase

-27-

to determine whether the death sentence should be im-

posed, Edward Swies, a probation officer who had con-

ducted the presentence investigution, was called as a wit-

ness by the Slate. The defendant objected to his taking the

stand. It was his contention that any conversation between

him and the witness was privileged and that the witness’

testimony would violate his fifth amendment right to re

main silent. These objections were overruled.

During direct examination, there was this colloquy:

“People: And let me call your attention in this partic-

ular case to October 10th of this year. Do you recall on

that day beginning your preseutcnce investigation in re-

gard to the defendant, Hernando Williams?

A. Yes, I do.

Q. Did you meet with Hernando Williams on October

the 10th?

A. Yes, | did.

Q. And that was the day after he entered his pica of

guilty?

A. Yes.

Q. Did you inquire of Hernando Williams when you

met with him in regard to any military record that he

may have hai?

A. Yes, | did.

Q. Did you learn from him anything about that mili-

tary record?

A. Yes.

Q. What did you learn from him?

A. He stated to me that he enlisted into the United

States National Guard and that he had received an honor-

able discharre.

Q. During the course of this interview which you had

on the 10th of October, was there any opportunity given

by you or was there an opportunity given by you to the

defendant to him to say anything that he wished to say to

you?

A. Yes.

Q. In regards to this investigation?

A. Yes, there is.

Q. Did you at that time ask the defendant if he

wished to make any comment with regard to the case in-

voiving Linda Gokistone?

(Objection overruled)

Q. Let me specify. That was with regard to the case

in which he had just already pied guilty, correct?

A. Yes.

Q. Did you ask him how he felt about what had hap-

pened in this case.

A. Yes, | did.

Q. How his wife felt?

A. Yes.

Q. Did he respond?

A. Yes, he did.

Q. What did he say?

A. He stated to me that himself and his wife had an

understanding of what has happened and that life must

go on and that he—that she should care for their child.

Q. As part of this investigation, did you—that you

conducted on the 10th of October, during the interview

was there an opportunity afforded by you to the defend-

ant to discuss with you any mental or emotional condi-

tions and his general health?

A. Yes.

Q. What if anything did the defendant teil you about

his mental condition or emotional conditions at the time?

A. Ile stated to me that he has never had any pre-

vious mental or emotional conditions.

Q. What about his general physical health?

A. He was in good health.

Q. When you asked him about the charge for which

he had pled guilty of Linda Goldstone, he didn't speak to

you about that. did he?

A. He stated to me, ‘No comment.’ "

Swies testified that the defendant did not express any re-

morse or feelings of regret. On cross-examination he ac-

knowiedgeid that he did not have any educational hack-

ground cither in psychiatry or psychology. On redirect

examination the witness expressed his opinion that the

defendant <lid not seem remorscfu.

We consiier that communications between a defendant

and a projution officer are not privileged. The situation

does not prescnt the same concerns that support the attor-

ney-client or plysicinn-client privilege, riz, that the defend-

ant will not be candid and will not make disclosures to the

professional out of fear that the information will later be

used against him. As the defendant’s brief admits, ‘‘a

defendant awaiting sentencing has no obligation to speak

to a probation officer or to aid in the preparation of a pre-

sentence report.” (People ex rel. Kunee v. Hogan (1976), 37

Ill. App. 3d 673.) For the same reason, the defendant's

fifth amendment right to remain silent was not violated. -

The defendant not only voluntarily chose to talk to the pro-

bation officer, but alse requested the investigation. Section

9—1(e) of the Criminal Code of 1961 provided constructive

Notice to the defendant that the presentence report might

be used agninst him at a death penalty hearing. Ill. Rev.

Stat. 1979, ch. 38, par. 9--1(e).

The defendant further contends that Swies’ ‘no com-

ment” response was an improper comment on his silence

under Doyle v. Ohio (1976), 426 U.S. 610, 49 L. Ed. 2d 91,

96 S. Ct. 2240. The defendant suggests that the reference

to the defendant’s silence was meant to impress upon the

jury the notion that the defendant was not remorseful or

cooperative. In Doyle, it was held that the prosecutor's ref-

erence during closing argument to the defendant’s silence

was improperly used to impeach his testimony at trial. Wil-

liams, instead of choosing to remain silent, requested an in-

vestigation and discussed his military service history, his

physical and mental heaith, and his understanding with his

wife concerning the situation that resulled from his crimi-

nal acts. Too, the reference to the defendant’s failure to

comment. was made by a witness, not by a prosecutor dur-

ing closing argument. The People never referred to the

witness’ “no comment’ response.

Since Swies also stated that the defendant had cooper-

ated throughout the interview and the defendant later took

the: stand and miie a rather compicte disclosure of his

conduct, it ennnot le seriously contended that Swies’ “no

comment” response influenced the jury to believe that the

defendant was uncooperative.

The Poople did express surprise during closing argu: .

ment that Williams had not expressed remorse, but its sur-

prise was hased on the defendant's testimony during tnal,

not on Swies’ ‘no comment’ reference. The defendant

concedes that it is proper during a sentencing hearing to

consider the defendant's “lack of a penitent spint.” (Peuple

v. Morgan (1974), 59 lll. 2d 276.) Lf any error occurred by

Swies’ opinion testimony concerning remorse, it was cured

by his testimony on cross-exiunination when he stated that

he was not qualified lo express an expert opinion.

During cross-cxamination, at the request of the defend-

ant’s attorney, Swies read aloud a portion of a “victim im-

pact statement” which was prepared during the presen-

tence investigation. The part lic read was written by the

defendant’s counse! and stated that the defendant recog-

nized his responsibility for his conduct, was coopcranve,

and though! he could help others if he were allowed to live

by showing through example the consequences of his con-

duct. On redirect exumination, at the State’s request, he

read, over the defendant's objection, a section of the “vic-

tim impact statement” which had been written by one of

the prosecuting attorneys. The part read narrated that the

victim “was a 29-year old mother of a 3-year-old son. the

wife of a doctor,” and that she was on her way to teach a

course in the Lamaze method of childhirth when she was

abducted. It also referred to the sorrowful impact of the

crime on the victim's immedi::te family and parents.

We do not consider it was reversible error under the

circumstances to have the prosecution's statement read.

The defendant was the party which introduced the fact

that the attorneys had submitted comments during the pre-

sentence investigution, and the defense was the first to

have its comment read to the jury. The defense was aware

that the prosecution had made a comment and presumably

knew that it would attempt to introduce its comment on

redirect examination. If there was impropriety in having

the lawyers’ cominents read, it must he kept in mind that

the defense opened the door and should not complain that

the prosecution also crossed the threshold.

The defendant was not substantially -prejudiced. The

factual statements had substantially been established prior

to Swies’ testimony, and the jury was infommed that the

comment was made by one of the prosecutors.

During the hearing in aygrravation and mitigation, the

defendant attempled to have a newspaper reporter, three

clergymen, and a professor of psychiatry desenbe what a

“typical” execution entailed and give opinion tesUmony as

to the deterrent ¢ffect of cipital punishment. Only the pro-

fessor had met the defendant. The State's motion in

limine to prohibit their testimony was allowed. Without

their testimony, the defendant contends, the jurv was not

able to determine if the death penalty was proportionate to

the seriousness of the offense or to consider the «defend-

ant’s potential for rehabilitation. The court did allow a

fourth clergyman, Rey. Thomas Feamster, to take the

stand, but objections were sustained on the ground of rele-

vancy as to the questions posed.

In this Slate a sentence must correspond to the serious-

ness of the offense and have the objective of restoring the

offender to useful citizenship. (Ill. Const. 1970, art. I, see.

1]; Ill, Rev. Stat. 1979, ch. 38, par. 1—2/e).) The testimony

of the proposed witnesses would have gone to beliefs in the

unwisdom and immorality of the death penalty, the repel-

ling nature of an execution in an electric chair and that the

penalty is not a deterrent to crime. Such testimony would

-31-

not have Leen proper. In 1970. the voters of this State in a

referendum approved the death penalty. The Supreme

Court of the United States and this court have held capital

punishment not to be unconstitutional. (Gregg ». Georgia

(1976), 42S U.S. 153,49 L. Ed. 2d 859, 96 S. Ct 2909;

People ex rel. Carcy v. Cousins (1979), 77 Ill. 2d 531. 536.)

Within constitutional limits, the manner of execution is a

matter for the legisiature. The defendant was given the op-

portunity to present evidence in mitigation of his offenses,

not to offer views on the death penalty statute. Arguments

against the death penalty in general and not containing ev-

idence in mitigation are inadmissible. See Lockett v. Ohio

(1978), 438 U.S. 586, 604 n.12, 57 L. Ed. 2d 973, 990 n.12,

98 S. Ct. 2954, 2965 n.12 (Burger, C.J., joined by Stewart,

Powell and Stevens, JJ.); Peop/e v. Waldron (1965), 33 I.

2d 261, 263.

The professor of psychiatry met with the defendant for

a total of 16 hours. The record shows that he would have

testified that he wished to study the defendant further for

insight into the motivations behind criminal conduct. The

professor did not state why Williams would prove a better .

candidate for study than any other criminal. Too, the fact

that the defendant's conduct may be of sume scientific in-

terest is not a factor in mitigation of his criminal acts,

since it dees not concern the circumstances of the offense

or the character and record of the defendant. (See /vople

», Jones (1982), 94 Ill. 2d 275; People v. Gaines (1981), 88

IM. 2d 342, S82.) Nor would it serve to restore the defend-

ant to useful citizenship. (See Ill Rev. Stat. 1979, ch. 28,

par. 1001—1--2.) It was not an abuse of discretion for the

trial court to exclude the professor's testimony.

The defendant’s request that the jury he transported to

the State penitentiary at Jolict to view the clectric chair

was also denicd. For the same reasons that the proffered

witnesses’ testimony was rejected, we do not consider the

cow's denial of the defendant’s request to transport the

jury an abuse of discretion.

The defendant next complains that the State should not

have been allowed to both open and close the final argu-

ments at the sentencing hearing. Prior to closing argu-

ment, the defendant moved to establish the order of the fi-

nal arguments. It was the defendant’s contention that

since the State did not have to overcome a burden of proof

at this stage of the trial, there should be no rebuttal argu-

ment. The defendant proposed that the Slate would first

present its argument in aevavation. which would be fol-

lowed by the defendant's arjniment in mitigation. The mai

court, however, allowed the State to present argument in

rebuttal.

Although the State acknowledges that there is no bur-

den of proof at the aggravation and mitigation hearing, it

argues that it was entitled to rebuttal time because it was

the complaining party and had gone forward with the evi-

dence. Supreme Court Rwe 253 provides:

“The parties shall proceed at all stages of the trial “°°

opening and closing statements, the offering of evidence,

and the examination of witnesses, in the order in which

they appear in the pleadings unless otherwise agreed by

ail parties or ordered by the court. °**.’’ (73 Ill. 2d R.

233.)

As the initiator of this action, the State would begin the

closing armuments uniess otherwise agreed or ordered by

the court. Too, we note that the trial court, as authorized

hy Rule 283, exercised its discretion in allowing the State

te open and close the final arguments. Under our Rule

412(c) the State has the affirmative duty to disclose to the

defendant's counse! any mitigsting evidence of which it has

knowledge. The State's contention that it has the burden

of going forward with the evidence, therefore, would ap-

pear to be correct.

The defendant's citation of Liptal xv. Seeurny Benet

Associntion (1952), 250 UL G14, is not persuasive. In Lip-

tak, this court held that a ciefendant asserting an affirma-

live special plea and admitting the establisnment of the

plaintiff's case is enutied to open and close in presenting

the evidence and arvuments since it has the burden of

proof. In cuntrast here, neither party had to overcome the

burden of proof and the plaintiff's case was not admitted

by the defendant. Too, this court did not deny the nght to

a rebuttal argument in Lipiak. Rather, the court allowed

the party entitled to open the arguments to offer rebuttal

as well.

The defendant further argues that he was denied what

he calls his right of allocution before the jury. The record

does not disclose, however, any indication that the defend-

ant requested to ariiress the jury by way of an unsworn

statement. Too, Williarns did not raise this issue in his

post-trial motion to vacate the sentence. Thus, the issue

was waived. (Prople rv. Lucas (1981), 88 Ill. 2d 245.) We

will, however, consider the argument.

Section 5—4—1(aX5) of the Unified Code of Corrections

provides:

“Except when the death penalty is sought under hear-

ing procedures otherwise specified, after a determination

of guilt, a hearing shall be held to impose the sentence.

At the hearing the court shail:

(5) afford the defendant the opportunity to make

a statement in his own behalf.” (Ill. Rev. Stat.

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