Opposition Brief — James v. Illinois

Whether petitioner's statements, previously suppressed

on Fourth Amendment grounds, may be used to rebut the testimony

of a defense witness other than the petitioner.

Reason for Denying the Writ:

—

TABLE OF AUTHORITIES IN THE

: SUPREME COURT OF THE UNITED STATES

wes eS Tee a,

* * 7 91 S. ct. 643 3 6.7.

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7 *

10, 11. DARRYL JAMES,

12,13

fe ge. fag 98 Tll. 24 45, —

* > 44 eT ͤ TT TTT TTT TTT TTT TTT TTT ** vs.

i

PEOPLE OF THE STATE OF ILLINOIS ‘

State v. Burnett, 637 S.W.2¢ 680 (Mo. 1562 12 .

Respondent.

— _Bspbers 103 Wash. 2 570,

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me , 6.0 fn

. 0 g. et. 1012 (19OO) 2. „ 6.7.9

" * TO THE SUPREME COURT ILLINOIS

United States vy. Binckley, 672 F.24 115 (D.C. Cir. 1982).... 12,13

ma ce e eee 347 U.S. 62, BRIEF ron RESPONDENT IN OPPOSITION

> N 7 - 354 . 6.7.8,

9.10, 11.

12,13

OPINION BELOW

The opinion of the Illinois Supreme Court, affirming

petitioner's circuit court convictions for murder and attempt

murder and reversing the contrary judgment of the Illinois

Appellate Court is reported at 123 Ill. 2d 523, 528 N.E.2d 423

(1988).

JURISDICTION

The jurisdictional requisites have been set forth in

the Petition for Writ of Certiorari. However, the respondent

believes that the petition has failed to show any good reason for

this Court to exercise jurisdiction to review the judgment in

question by writ of certiorari.

iii 1

W ** r . ee

8 2 = a

n

Petitioner Darryl James, was convicted of the murder of

Gerilia Boyd and the attempt murder of Delbert Collins. The

incident occurred on the night of August 30, 1982, in Chicago,

Illinois, when petitioner and two companions demanded money from

a group of eight boys.

At the pre-trial proceedings, the trial court granted

petitioner's motion to suppress evidence stemming from the

arrest. (R. 60) The petitioner was arrested at his mother's

beauty shop, where police discovered petitioner sitting under a

hair dryer with curlers in his hair. (R. 19,20) Among the

evidence suppressed was petitioner's statements admitting he had

changed his hair color from reddish-brown to black in order to

change his appearance. (Supp. R. 95-96, 136-137) Petitoner's

motion to suppress was granted on the grounds of lack of probable

cause for arrest.

In their case-in-chief, the People presented the

testimony of five eyewitnesses to the Boyd-Collins shooting:

John Brown, Perry Brown, Kenneth Brown, Darryl Hall and Delbert

Collins. According to the testimony of each of the five boys,

they were walking home from a party on the night of August 30,

1982, when three boys approached them and demanded money. IR.

293, 339, 385-87, 407-8, 427-28) When no money was surrendered,

one member of the trio pulled out a gun and shot into the group

of boys. (R. 302) Witness John Brown described the shooter as 5

feet 4 inches tall, light-complexioned, wearing an earring and a

dark brown baseball cap, and having long reddish-brown hair

combed straight back. (R. 294, 300-01) The other four witnesses

to the shooting corroborated John Brown's testimony. (R. 343,

391, 412, 430)

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N Q *

At trial each of the five eyewitnesses pointed to

petitioner and identified him as the person who shot Gerilia Boyd

and Delbert Collins. The witnesses stood firm in their

identification despite their acknowledgement that petitioner's

hair was black in color and natural in style at the time of

trial, which was two years after the incident. Four of the

witnesses testified that they had seen petitioner two weeks

before the shooting incident at a parade and at that time

petitioner's hair was long, red and slicked back. (R. 294-5,

340, 388-9, 408, 429)

The petitioner's primary witness and close family

friend, Ms. Jewel Henderson, testified in direct contradiction to

the testimony of the five prosecution eyewitnesses. She

testified that she had never seen petitioner wear a cap or an

earring. Ms. Henderson further testified that petitioner did not

have red hair on August 30, 1982. (R. 500-04) The petitioner

chose not to testify.

In rebuttal, the People sought to introduce

petitioner's statements to police that shortly after the shooting

on August 30th, petitioner had changed his hair color from

reddish-brown to black. (Supp. R. 62) Petitioner's counsel

objected to the use of the statements on the grounds that they

had been suppressed because of Fourth Amendment violations.

(Supp. R. 63-4) Nonetheless, the court allowed the use of

petitioner's statements to rebut or refute Ms. Henderson's

testimony that petitioner had black hair, not red, on the night

of the shooting. (R. 64) Petitioner's counsel then moved to

suppress petitioner's statements on the grounds that the

statements were involuntary. (Supp. R. 115) The trial court

suspended the trial, held a hearing on the motion, and then

denied petitioner's motion, finding that petitioner's statements

*

were voluntary. (Supp. R. 128) Defendant's statements that on 1912 (1980), which the Illinois court had previously applied in

August 30, 19862 his hair was reddish-brown, long and combed People yv. Payne, 98 Ill. 24 45 (1983). The state supreme court

straight back were presented to the jury. A police officer * then affirmed petitioner's convictions for murder and attempt

testified that defendant had admitted that he had changed his murder and later denied petitioner's request for rehearing.

hairstyle and hair color in order to change his appearance.

(Supp. R. 136-137) After petitioner's counsel cross-examined the

officer, the trial court orally instructed the jury that

petitioner's statements about his red hair were offered solely to

refute and rebut his own witness’ testimony. (Supp. R. 145)

In surrebuttal, two relatives of petitioner testified

that petitioner's only hair color had been black. (Supp. R. 148-

154) The jury then deliberated and found petitioner guilty of the

murder of Gerilia Boyd and guilty of the attempt murder and

aggravated battery of Delbert Collins. (Supp. R. 250)

Petitioner appealed his convictions to the Illinois

Appellate Court, which reversed the convictions and remanded the

case for a new trial. The appellate court held that the

admission of petitioner's suppressed statement to rebut the

testimony of a witness other than petitioner was improper. The

court reasoned that the exclusionary rule would be “swallowed up” |

by the exceptions, if it were to uphold the trial court's

actions.

The Illinois Supreme Court reversed the appellate court

decision by holding that when the direct testimony of a defense

witness “squarely contradicts" suppressed evidence, then the

suppressed evidence may be admitted to rebut the testimony of

that witness. In so holding the Illinois court relied on the

legal principles espoused by this Court in Walder v. United

States, 347 U.S. 62, 98 L.Ed 503, 74 S.Ct. 354 (1954); Harris v.

New York, 401 S. 222, 28 L.Ed 2d 1, 91 S.Ct. 643 (1971); and

United States v. Havens, 446 U.S. 620, 64 L. zd 539, 100 s. ct.

Petitioner contends that the Illinois Supreme Court

improperly expanded the impeachment exception to the exclusionary

rule to include the use of a defendant's suppressed statements to

rebut the testimony of a defense witness where a defendant does

not testify. Petitioner argues that the state court's ruling

does not comport with this Court's decisions concerning

exceptions to the exclusionary rule.

At petitioner's trial for murder and attempt murder,

five prosecution eyewitnesses to the crime described the offender

as having reddish-brown, slicked back hair. Their in-court

identifications of defendant as the offender were positive,

despite the difference in color, length and style of petitioner's

hair at the time of trial. Each witness was throughly cross-

examined regarding his identification.

In his defense, petitioner's primary witness was family

friend Ms. Jewel Henderson. Ms. Henderson testified on direct

examination that petitoner's hair was black in color on the night

of the shooting. Even as Ms. Henderson testified, petitioner

knew that he had told the police at the time of his arrest that

his hair had deer red on the night of the incident. Petitioner

was also aware that the statements concerning his red hair color

were suppressed as fruits of an illegal arrest. Petitioner knew

that his friend's testimony directly contradicted his suppressed

statements.

The prosecution and the trial court were also aware of

the contradiction, and in rebuttal, the prosecution was allowed

to introduce petitioner's statements into evidence in order to

rebut Ms. Henderson's testimony concerning petitioner's hair

color on the night of the incident.

: The Illinois Supreme Court upheld the trial court's

ruling and announced a narrow exception to the exclusionary rule

which would allow the use of suppressed evidence to impeach the

direct testimony of a defense witness, which “squarely

contradicts" the suppressed evidence. In reaching its decisions

the state court relied on this Court's decisions in Walder v.

United States, 347 U.S. 62, 98 . 503, 74 S.Ct. 354 (1954);

Barris v. New York, 401 U.S. 222, 28 . 88. 20 1, 91 S.Ct. 643

(1971); United States v. Savens, 446 U.S. 620, 64 L.Ed 24 559,

100 S.Ct. 1912 (1980).

In Walder, this Court first espoused the “impeachment

exception” to the exclusionary rule. Defendant, charged with

buying and selling narcotics, testified on direct examination

that he had never been involved with the sale or possession of

narcotics in any way. At the time of his testimony, defendant

knew that his earlier charge of delivering heroin had been

dismissed based on the suppression of illegally obtained

evidence. 347 U.S. at 62-63, 96 T. . 20 at 506, „„, S.Ct. at

355.

After defendant's testimony, the prosecution was

allowed to introduce rebuttal evidence of defendant's prior

arrest for heroin for the sole purpose of impeaching defendant's

credibility. While acknowledging the prohibitions of the

exclusionary rule,

Tt is one thing to say that the

Government cannot make an affirmative use of

evidence unlawfully obtained. It is quite

another to say that the defendant can turn

the illegal method by which evidence in the

Goverment’s possession was obtained to his

own advantage, and provide himself with «a

shield against contradiction of his untruths.

Such an extension of the Weeks doctrine would

this Court upheld the admission of the

suppressed evidence. Mr. Justice Frankfurter wrote:

More recently the principles set forth in both Halder

and Barris were relied on and expanded by this Court in Qnited

States v. Havens, 446 U.S. 620, 64 . . 2 559, 100 S.Ct. 1912

(1960). Im Bavens, this Court hel@ that the Government's

impeachment of defendant's testimony om cross-examination with

suppressed evidence did not violate defendant's constitutional

rights. 446 U.S. at 629, 64 L. 8. 20 at S66, 100 S.Ct. 1917. The

tect that the Havens court upheld the impeachment of defendant's

testimony brought out on cross-examination with suppressed

evidence, indicates this Court's unwillingness to allow the abuse

of the exclusionary rule as a shield for perjury.

Mr. Justice White wrote:

be a perversion of the Fourth Amendment. 347

9.8. at 65, 98 L.Ed. at 507, 74 &.Ct. at

356.

This Court expanded the impeachment exception in Harris

vw. New York, where defendant's testimony on direct and cross-

examination “contrasted sharply” with the inculpatory statements

made to police shortly after his arrest. 401 U.S. 222, 2

L. . 2 1, 91 S.Ct. 643 (1971). This Court determined that

although defendant's post-arrest statements were suppressed

because of a Miranda violation and those statements had a direct

bearing on the case at trial, the admission of the statements for

impeachment purposes was proper. 401 U.S. at 225, 28 L. 8. 2 at

4, 915 S.Ct. at 645. While the Walder holding was limited to

impeachment of defendant on collateral matters brought out in

defendant's direct testimony, the Barris Court stated, “we are

mot persuaded that there is a difference in principle that

warrants a result different from that reached by the Court in

We also think that the golicies of the

exclusionary rule no more ter impeachment

here than they did in Walder. Harris, and

Bass. In those cases, the ends of the

exclusionary rules were thought adequately

implemented by denying the government the use

of the challenged evidence to make out its

case in chief. The incremental furthering of

those ends by forbidding impeachment of the

defendant who testifies was deemed

insufficient to permit or require that false

testimony go unchallenged, with the resulting

impairment of the integrity of the

factfinding goals of the criminal trial. We

reaffirm this assessment of the competing

Interests. . 446 U.S. et 627-28, 64

L. EG. 2d 566, 100 s. ct. at 1916-17.

e

The [Illinois Supreme Court thoroughly reviewed and

relied on the Walder, Harris and Havens decisions to affirm the

admission of the suppressed evidence in the present case. The

factual situations presented in the above three cases are similar

to that in the instant case: evidence was suppressed based on a

fourth or fifth amendment violation; defense presented testimony

which squarely contradicted the suppressed evidence; and the

trial court allowed the suppressed evidence to be presented for

impeachment purposes. The main factual distinction from this

Court's line of decisions is that it was not petitioner but one

of his witnesses who testified in contradiction of the suppressed

stat nent

Petitioner argues that this distinction takes his case

out of the realm of the “impeachment exception” cases. For

petitioner's argument to have merit, this Court must rule that a

defendant is not responsible for evidence produced in his defense

unless it comes from his own mouth. The Illinois Supreme Court

rejected this argument, stating:

In our view, if a defendant is

prohibited from using perjury by way of «a

defense it matters not from whose lips that

perjury comes. Just as a defendant may not

directly perjure himself and then hide behind

the exclusionary rule, he also cannot be

allowed to use perjurious testimony through «a

biased defense witness, in this case, the

principal defense witness, without affording

the prosecution an opportunity to challenge

the veracity of that testimony. 123 Ill. 24

523, 536.

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The state court also disagreed with petitioner's claim

that the expansion of the impeachment exception would have «

detrimental effect on the exclusionary rule. The petitioner

Claims that police and prosecutors will no longer be deterred

from violating constitutional rights in obtaining evidence.

Petitioner further contends that the rule announced by the

Illinois Supreme Court would allow the prosecution to use the

tainted evidence to “impeach the testimony of any witness «

Gefendant might call.” (Petitioner Br. 11)

On the contrary, the Illinois Supreme Court emphasized

in careful detail the limited circumstances in which its ruling

would apply. The use of suppressed evidence to rebut testimony

of defense witnesses will be allowed only as to statements made

by the witness on direct examination, which amounts to a clear

contradiction of defendant's suppressed statements. “It must be

apparent that the testimony of the witness, if false, has been

purposely presented by the defendant.“ 123 111. 24 523, 537.

The court further emphzsized that the exception does not apply to

any part of a suppressed statement which could be characterized

as a confession. jd.

In 19863, the Illinois Court looked to this Court's

decisions in Walder end Havens and upheld the admission of

suppressed evidence to correct a missiapression created by the

Gefense's cross-examination of a prosecution witness. People vy.

Payne, 98 111. 24 45, 456 N.B.2¢ 44 (1983). In Payne, defense

counsel cross-examined one of the arresting officers on whether

the defendant's apartment had been searched. The officer

answered affirmatively and then defense counsel concluded his

questioning. Toe jury was left with the false impression that

the search had been fruitless when in fact the fruits of the

search had been suppressed. Id. at 49, 509. In upholding the

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admission of the suppressed evidence the Illinois court reasoned:

Tf a defendant procures, invites or

acquiesces in the admission of evidence, even

though it be improper, he cannot complain.

98 Tll. 24 at 50.

The direction shown by Walden, Garris. Havens, and

their progeny is clear: this Court will sot allow the defense or

prosecution to misrepresent the actual facts of a case under the

protection of the exclusionary rule.

The petitioner also points to the cases of State vy.

Burnett, 637 8. 24 680 (Mo. 1982) State vy. Bubbard, 103 wash. 24

570, 693 F.2¢ 718 (1985), and Gnited States vy. Hinckley, 672 F.2¢

115 (D.C. Cit. 1982), to support his contentions. All three

cases are distinguishable from the case at hand.

In State vy. Burnett, the defendant did not testify, but

the prosecution's questions of defense vsithness on cross

examination made reference to the suppressed evidence. The

Supreme Court of Missouri held that if Bavens was applicable to

witnesses other than defendant, the outcome of Burnett would be

the same because of the prosecution's scheme to set up the

admission of the suppressed evidence on cross-examination. 637

8. . 2d 680, 690 (Mo. 1982).

In @ 6 to 3 eisen, the Washington Supreme Court

reversed «a lower court ruling that statements obtained in

violation of Miranda can be admitted as substantive evidence to

rebut testimony given by any defense witness. State vy. Hubbard,

103 Wash. % 570, 693 . % 718, 720 (1985). If such « ruling

were appealed to the Illinois Supreme Court, it would surely be

12

reversed in light of the instant case, which olds that the

admission of suppressed evidence for impeachment purposes will

only be permitted under the most limited circumstances.

The government's argument in United Stages v. Hinckley

672 FF 115 (D.C.Cir. 1962), was that insanity is¢an affirmative

Gefense, not part of the prosecution's casetin-chief, and

therefore defendant's statements, procured in violation of

Misands, can be used in rebuttal without jeopardizing

constitutional principles. The government also @rqued that if

the defense puts forth testimony by an expert @itness on the

Gefendant's mente] state, that testimony is tantamount to the

defendant taking the stand himself. The Binckley court rejected

the government's theories. 672 F.2¢ at 132-134.

Clearly the ruling of the Illinois Supreme Court, in

the instent case, would not support such « broad, 11

encompassing argument. The Illinois court spplied the principles

set forth by this Court in Walden, Barris „„ Bavens and its own

Gecision of People yv. Payne to the facts of the instant case to

reach its decision to narrowly expand the impeachment exception.

The fTllincis Supreme Court's holding ‘preserves the

Geterrent ends of the exclusionary rule by denying the

prosecution the use of suppressed evidence to sate its case-in-

chief and also preventing the affirmative exploitation of the

suppressed evidence by the defense. Petitioner's ‘argument fails

to show « need for this Court in its sound discretion to grant

his petition. The ruling of the Illinois Supreme Court is sovel,

but based on « clear line of decisions by this Coert. Therefore

this case does sot warrant this cart to review the Illinois

Supreme Court's decision.

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The People of the State of Illinois respectfully

request this Bonorable Court to deny the petition for writ of

certiorari in the above satter.