# Record and brief — Patterson v. Illinois

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Record and brief
- **Published:** January 1, 1988
- **Citation:** 487 U.S. 285

## Text

No. 86-7059-CSY Title: Tyrone Patterson, Petitioner

Status: GRANTED v.
Illinois
Docketed: Court: Supreme Court of Illivois

June 12, 1987
Counsel for petitioner: Honchell,Donald S.

Counsel for respondent: Donatelli,Jack

Entry Date Note Proceedings and Orders

1 Jun 12 1987 G Petition for writ of certiorari and motion for leave t
proceed in forma pauperis filed.

©

3 Jun 29 1987 Brief of respondent Illinois in opposition filed.

4 Jul 1 1987 DISTRIBUTED. September 28, 1987

6 Oct 2 1987 REDISTRIBUTED. October 9, 1987

8 ct 13 1987 Petition GRANTED.
REREAD RK

10 Nov 5 1987 Order extending time to file brief of petitioner on the

merits until December 11, 1987.
11 Nov 12 1987 Joint appendix filed.

13 Dec 3 1987 Brief of petitioner Tyrone Patterson filed.
14 Dec 21 1987 Record filed.
* Certified original record, 3 volumes, received.
24 Dec 24 1987 G Motion of the Solicitor General for leave to participate

in oral argument as amicus curiae and for divided
argument filed.

16 Jan 4 1988 Order extending time to file brief of respondent on the
merits until January 25, 1988.

18 Jan 8 1988 Brief amici curiae of Americans for Effective Law
Enforcement, Inc., et al. filed.

17 Jan 11 1988 Brief amicus curiae of Washington Legal Foundation filed.

19 Jan 25 1988 Brief amicus curiae of United States filed.

20 Jan 25 1988 Brief of respondent Illinois filed.

22 Feb 5 1988 SET FOR ARGUMENT, Tuesday, March 22, 1988. (2nd case

23 Feb 10 1988 CIRCULATED.

25 Feb 22 1988 Motion of the Solicitor General for leave to participate

in oral argument as amicus curiae and for divided
argument GRANTED.

26 Feb 23 1988 X Reply brief of petitioner Tyrone Patterson filed.

27 Mar 22 1988 ARGUED.

PETITION
FOR WRIT OF
CERTIORARI

YUN } 9 1987

OFFICE .
ME CL
SUPREME Couar, ry

Maine ,v. Moulton, 474 U.S «-, 88 L.Ed.2d 481, 106

. . = PT TV TLC TCC ETUC CTOTCUTUTTITTe °

United States v. Gouveia, 467 U.S. 180, 81 L.Ed.2¢4

, ” eGSe J27¢ Pipa dbwadeeddanad ooddeetssevccade

Johnson v. Zerd-t, 304 U.S. 458, 82 L.Ed. 14€1, 58 da
ewe RE CAE NI al ak fe eee?

Murphy v. Holland, 776 F.2d 470 (4th Cir. 1985)....... eee
Deputy Vv. State, 500 &.2¢ 561 (Del. 1 65) wcces “fee ee eee

tv 9, 10
United States Constitution, Amendment i eee Te eT ee TT ee -?% ,

United States Constitution, Amendment XIV....cccccseseeverl

(e)
OPINIUn BELOW

The decision of the Illinois Supreme Court
‘nvolving petitioner Patterson is to be published as
People v. David Thomas at - I11.2d -, = N.E.2da = (1987).
A copy of the opinion is included as an appendix to this

petition.

(f)

STATEMENT OF JURISDICTION

>
et me we & wee

This Court's jurisdiction is invoked pursuant
to 26 U.S.C. 1257(3). The opinion of the Supreme Court
of Illinois was oiled On April 16, 1°87. No petition
for rehearing was submitted. This petition is being
presented within 60 days of the date -* the Supreme

Court’s ruling.

(e)

Cet ee eee ste? A**T7 eT Ae T° bd ed =
a oe et PROVIS TONS I} VOL ED

ss.

the State anc cistrict wherein the crime shall have
beer committec, which ¢istrict chall heave beer previcusly
escertéinec Dy law, anc to be informed of the reture and
cause co the accusaticn; to be cenfronted with the witnesses
against mim; to have compulscry precess for cttaining wite
nesses in his favor, and to heve the Ascistance of Counsel

nis Gefence.

Amendment XIV

Section 1. All persons torn cr neturelized in the

¢
:3
*
«ft
m

¢ States end subject to the Jurisdiction therecf, ere
citizens of the United States and of the Stete wherein they
Ne State shall make or enforce any law which shall
abricee the crivileges or immunities of citizens of the
United States; mor small any State deprive any rerseorn of
iife, liberty or property without due process of law; nor
Geny to any person within its Jurisdiction the equal pro-

tection of the laws.
- 5 «

a (h)
STATEMENT OF THE CASE

Petitioner Patterson was arrestec on August 21,
1983 on @ warrant for battery and mob action in a case
unrelated to the incident for which he was later tried.
He was thereupon taken to a police station in Evanston,
Illincis. (R. 4-5) When there questioned about a homicide
police were investigating, petitioner replied he knew
nothing about it. (R. 12, 33, 36) Petitioner thereafter
remained in custody in the police station lockup (R. lie
14, 20) and on August 23, 1983 he was indicted (alone
with others) for murder and armed violence. (R

In the police Station, Evanston police officer

pearance before the grand jury. (R. 20) At th
Gresham told petitioner of the indictment (R. 20, Sle2,
53), prompting petitioner to ask who had been charced.
Gresham told him the names and petitioner responded by
inquiring why Carl Harmon had not deen indicted since
Harmon had done everything and had made a statement to

@ girl. (R. 20-1, 54, 55, 56) Gresham then stopped pe-
titioner from Speaking further and advised him of his
rights, using the admonitions contained in the case of
Miranda v. Arizona. (R. 21-2, 58-60) After securing a
written waiver of those rights (R. 21-2, 58-60), Gresham
then directed petitioner to continue Speaking and the
two conversed for 30 or 40 minutes. (R. 23) In this
Session, petitioner revealed how the victin was killed.

(R. 732-4)

Later that same day, officer Gresham notified
the Cook County State's Attorney's Office and assistant
George Smith arrived at the police Station. (R. 23) He
Spoke with petitioner (R. 24), knowing that petitioner
had by then been charged in a grand jury indictment.
(R. 80-1) Smith showed petitioner « waiver form by which
to surrender constitutional rights. Petitioner recognized
it as containing his Signature and initials (R. T4e5, 83-"'
ang declared he understood those constitutional rights.
(R. 75, 83-4) Smith explained his function as an assistant
tate’s Attorney and asked petitioner if he desired to make
@ statement. Petitioner agreed. (R. 76) So, he detailed
the events leading to the victim's murder. (R. 800-13)

Prior to trial, petitioner movec to suppress
his statements and a hearing was held on their admissibility.
There, the JuGge ruled the statements were admissible in
evidence. (R. 168-9) Ss, the State used petitioner's dis-
closures to both officer Gresham ang assistant State's Ate
torney Smith at trial to prove petitioner’s guilt. (R. 732-
4, 600-13)

On review, the Illinois Supreme Court apprcved
the admission of the Statements, holding petitioner had
effectively -waived his Sixth Amendment right to counsel.
(Op., pp. 6-7) The court recognized the right to counsel
under the Sixth Amendment was "separate and distinct" from
the right to counsel under the Fifth Amendment (Op. at p. §)

but deemed the waiver of Sixth Amendment counsel vali

because petitioner "was aware of the gravity of his
Situation” (Op. at pr. 6, 7) and “understood his cone
Stitutional rights”. (Op. at p. 7) That court further
acknowledged lower courts were "not ir agreement” on
“whether waiver of the Sixth amendment right to counsel
Must be judged by a higher standard than that which is
@pplicable to waivers of the right to counsel under

Miranda” and that this Court had "reserved ruling on

this question”. (Op., p. 6)
Based on its interpretation of the law ree
Gardine waiver of the Sixth Amendment richt to counsel

*

>
the Illinois Supreme Cours accepted Miran3a admonishments
as sufficient to secure a Knowing ang intellizent waiver
£ that right. So, it affirred petcitioner’s convict
basec on the use of his confessions ¢- authorities. (Of

at p. 16)

(1)

RAISING THE FEDERAL CONSTITUTIONAL CLAziS
eee et

Petitioner argued in both the Illinois appellat
court (see People v. Patterson, 140 Ill.App.id 421, 424
5, 488 N.E.2¢ 1283 (1986)) and the Illincis Supreme Court
that his waiver of counsel was ineffective under the
Sixth and Fourteenth Amendments. The Illinois Supreme
Court particularly considered if the informatior sufficed

to permit a knowing and intelligent waiver of petitioner’

e

s

"sixth amendment right to counsel" (Op., p. 5) and
specifically concluded petitioner “knowingly and ine
telligently waived his sixth amendment right to counsel.”
(Op., p. 7)

(J)
REASONS FOR GRANTING THE WRIT

DESIGNED To PROTECT A SUSPECT'S PoEae aS . Petonine BSE,
ARE NOT SUFFICIENT TO ASSURE THAT A CHARGED DEFENDANT
AWARE OF HIS INDICTMENT KNOWINGLY AND INTELLIGENTLY
WAIVES HIS SIXTH AMENDMENT RIGHT TO THE ASSISTANCE OF
COUNSEL AT INTERROGATIONS FOLLOWING HIS INDICTMENT

This Court, on two occasions, has confronted
the question of whether a charged defendant has properly
waived his Sixth Amendment right to counsel. (Brewer v.
Williams, 430 U.S. 387, 51 L.Ed.2a S26, 97 S.Ct. 1232
(2977); Michigan v. Jackson, 475 U.S. -, 89 L.Ed.2¢ 631,
106 S.Ct. = (1986)) On each such occasion, this Court
has resolved the issue without Geciding the question of

Ow @ State may secure @ valid waiver of that federal
constitu .onal right.

Thus, in Brewer, this Court refrained from
holding the accused could not have waived his Sixth
Amendment right to counsel and decided simply he did
not do so. (Brewer v. Williams, 51 L.Ed.2¢ 424 at 441)
And in Jackson, this Court appliec its holding in Edwards
Vv. Arizona, 451 U.S. 477, €8 L.Ed.2@ 378, 101 S.Ct. 1880
(1981) to find no surrender of the right to counsel,

electing not to "decide...the general relationship between

Fifth and Sixth Amendment waivers.” (Michigan v. Jackson,
69 L.Ed.2¢ 631 at 642 mn. 10) In this case, unlike Erew-

£F anc Jackson, petitioner dic waive nis right te counsel.

Therefore, the question unreacned in those ceases is cleare-

ly presented here: how the e°vernmer.: may

Valiciy secur
an effective waiver, knowingly and intelligently, of the
indicted accused's Sixth Amencment right to counsel,
binding on States through the Fourteenth frencrer-. Th
critical question of federal law, twice undeciced by this
Court, should now be settled.

This Court has ofter recog:
mature of the Sixth Amendme..: righ? tc coun
settings after the initietion of adgverser: critinel ere

ceecings. In Mas

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that, as much as at trial, an indicte
counsel Guring police interrogs:

when legal aid and advice would hel

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at 249) In fact, this Court hes exper.cec the
of the Sixth Amendment right to counsel berond the tr

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itself to events prior tc trial deeredé cr

; "the core purpose of the counsel euerantee
A i4 was to assure ‘Assistance’ at trial, when
the accused was confronted with doth the
intricacies of the law and the acvocacy of
the public prosecutor. Later Gevelorments
have led this Court to reccenmize that ‘As-
sistance’ would be less than meaningful if

--

it were limited to the formal trial itselfr.

"This extension of the right to counsel
to events before trial hes resulted from
changing patterns of criminal procedure
anc investization that have tended to gen-
erate pretrial events that might approp-
riately be considered to be parts of the
trial itself. At these newly emerging and
Significant events, the accused was con-
fronted, just as at trial, by the procedural
System or by his expert adversary or by both."
(United States v. Ash, 413 U.S. 300, 37 L.Ed.2¢4
629, S26-7, 93 S.Ct. 2568 (3974))

Counsel has there been deemed crucial because events at
these critical pretrial Proceecinges “micht well settle
the accused's fate and reduce the trial itself to a mere
ty". (Ash, 37 L.Ed.26 619 at 627; see also Maine
Ve. Moulton, 47+ U.S. «-, 68 L.Ea.2¢ 481, 492, 106 S.ct. «

(1985)5 Unites Staces vx. Souveia, 467 U.S. 180, 81 L.Ea.24

(1934)) Consequently, the ace

S285 v¥. Unites States, 12 L.E¢.2¢ 246; Brewer v. Williams,

Se

Se LeES.26 424) Since, clearly, results of those interro-

J

g2tions may certainly settle the fate of the defenders and
recuce the trial to pure formality. This Court must thus
recognize anew thet the issue arising here of petitioner's
Sixth Amendment right to counsel at the interrogetions after
his indictment involved a highly significant corstitutional
concern. Yet the issue is not one commonly confronting
this Court - denial of counsel but an issue equally im-
portant = waiver of counsel.

This Court has previously considered the subject

of @ constitutionally adequate waiver of rights. It has

elle

recognized the precumption @gainst the waiver of furndsee
mental constitutional guerantees (Michs gar, V. Jackhsss.,
89 L.Ed.2¢ 631, 640 citing Johnson v. Zerbst, 304 U.2.

458, 82 L.Ed. 1461, 5@ $.ct. }

oo

Showing by the State, ever in “ar, @ileges waiver sf the
right to counsel...at a Critical stage of pretriel ers-es:
ings", of the surrender of "gs anown right or privilege”.
(Brewer v. Wilisams, Si L.Ed.2¢ S24, 435, 44¢ @343aiiy
citing Johnson v. rbst) Thus, it realizes as « matter

| 2 ‘ ° - ’ wa. - + --** 7
of federal constitutional lax the heavy Gurdger. or a gcverne

This case combines both the Cruciai concerns
previously addressei Separately by this ceure FPecceniticr
of the critics] Sixth Amendmer: P2ght te counsel and ace
knowledemen: cf the heavy responsitiiiecy for proving waiver
of sienifican: constitutional rights. It is thus aperceriate

this Court now exarine these matters wher they arise togetner
anc decide how the State may Secure @ Knowing and srtessigen:
Waiver of the Sixth Amendmer: Fight tc counses at
indictment interregations.

Courts of review are now umcertain on the arrliie
cable procedure for compliance with the test for waiver
established by this Court, In Murphy v. Holiars, 776 ¥.24
470 (4th Cir. 1985), Giffering approaches by the various
federal circuit courts of review were acknowledged because

“courts have been unable to agree regarding what specific

Warnings must be given the accused before a knowing and

intelligent waiver of the sixth amendment right to counsel

may be found.” (776 F.2d at 481; emphasis by the court)
Moreover, decisions of State reviewing courts are like-

wise in disagreement. (Compare Deputy v. State, 500 A.2d

581, 591 mn. 14 (Del. 1985) (waiver of Sixth Amendment right

to counsel more @ifficult to prove than waiver of Fifth

Amendment right to counsel) with the holding in petitioner's

case (waiver of his Sixth Amendment right to counsel satis-

fied by Miranda warnings established for waiver of
Amenément right to counsel).) This Court must now
Guidcance on the acceptable method of securing from
dicted accused «a knowing and intelligent waiver of
Amenégment counsel.

In previous cases, this Court determined
hag been no surrender of the right to counsel and,

mot examine the validity of the waiver. (Brewer v.

Fifth
provide
an ine

his Sixth

there

sc, did

Williams;

Michigan v. cackson) Here, petitioner @id relinguish his
right to counsel at his post-indictment interrogations but

was it done knowingly and intelligently? To answer that

critical question and provide needed direction for all,

this Court should now accept this case and review the un-

decided issue of the proper method of securing @ knowing
ang intelligent waiver of an indicted defendant's Sixtt.

Amendment right to counsel.

-lj-

(k)

Peta e tem en ye
Wit wise we ost

For the reasons stated herein, petitioner
Tyrone Patterson respectfully prays that this Honsrabie
Court issue a writ of certiorari to review the Ssdemerne
concerning him entered in these proceecings b&

lincis Supreme Court.

hatenr . 4
Respectfully, Submitted,
s +e - -- >
PAJL P. BIESE:, oR...
sh 74 ef : — Aan ~.
Public Defender >: ~00k Count
a. * - il ee -
SO3 Richaré J. Daley Venter
my, ~ » de : ~~ | £ALes
Chicagc, 4$e62en338 9uUSvée
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‘cee $9 300 So

earn Tol bie kth ad
DONALD Ss. HONCHELL,

Assistant Public Defender,

Of Counse)

e 16 «

~THE PEOPLE
Appellee v TY.

to testify on be.
agrees to dismiss

him and not to cor.

pars. 9~l/as]) 9

with two counts of
Molence (Ill. Rey Star

LLINOIS. Appe.

Agenda 2—Jarug-
fh,
murder of James Kern

OF I
Ppellan:
ILLINOIS.
iM@icted the defendar::

jury

and Tyrone

1987
THE STATE
THO
vered the opinion of the Cras

1961. ch. 38.

of armed

2) for the
McCune

State. in return.

N. Appellant,

JUSTICE MORAN deli

A Cook Coun

MAS. A
OF

. Charging each
a.

lee, v. DAVID
ty grand

OF THE STATE
pth an

Docket Nos. 63144, 63149 cons —

THE PEOPLE OF

the
se.eq
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4M assistan

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sepa rite] i

(1) whether +
the tmal court erred os

Patterson s uncour

to the police and

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Thomas stated he wished i

The ? to give a statement. Thom
ee that the police had treated him fairiy while >
5 M Custody. Friedman told Thomas that a witness

Friedman asked whether M :
. cCune had left the ]
— however, Thomas indicated that he did ia ne
answer any further questions and requested counse!.

the victim's shoe during the init;
. 7 tal
near his house. He told Gresham

ja McCune od Harmon put Jackson back into his car.
ackson was t driven to the dead end and dragged
from his car. He further stated that, after McCune left
the dead end, Harmon beat Jackson about the head and
da, “t Clay boulders and threw him into a mud pod

and Harmon then fled the scene
meether and Thomas ran off in a different directes ion.
Thomas objected to Smi S testimony that Thomas was
ax jhe scene and fled. The court sustained his objecns
fag ainstructed the jury to disregard the testimony neg

=

dence at trial. Thomas, however. testified in his own de-
fense. He admitted that he punched Jackson in the jaw
once but denied participating in the beating that oc-
curred near his house, getting into the victim's car and
riding to the dead end. He testified that he Stood on the
sidewalk in front of his house and watched Jackson's car
drive toward the dead end and stop. Thomas also testi-
fied that he then walked to the area where Jackson's car
was parked, but stopped approximately 25 feet from the
others. He testified that he saw Harmon “making down-
ward motions *** with his hands,” but was unable to de-
termine whether Harmon had an object in his hands. Fi-
nally, Thomas testified that he did not help, encourage or
even Say anything while he stood there.

Defendant Patterson contends that neither the admo-
nitions required by Miranda under the fifth amendment
nor his knowledge of the fact that he had been indicted
for Jackson's murder afforded him sufficient informanon
to knowingly and intelligently waive his sixth amend-
ment mght to counsel. Patterson also contends that this
information was insufficient to enabie him to knowingly
and intelligently waive the mght to counsel guaranteed
by our State constitution (Ill. Const. 1970, art. I, sec. &).
Consequently, he maintains that his uncounseled post-in-
dictment statements to Officer Gresham and Assistant
State's Attorney Smith were obtained in violation of
both his sixth amendment might to counsel and his nmght
to counsel guaranteed by our State constitution.

Patterson correctly observes that the sixth amend-
ment mght to counsel and the mght to have counsel
present during interrogation, which is Guaranteed by
Miranda to safeguard the accused's fifth amendment
privilege against self-incmmination, are separate and dis-
tinct nghts. (People v. Martin (1984), 102 Ill. 2d 412,
419, cert. denied (1984), 469 U.S. 935, 83 L. Ed. 2d 270,
105 S. Ct. 334.) Consequently, he contends that Miranda
warnings, which were fashioned to protect the accused's
fifth amendment privilege, do not serve to create a suffi.
ciently meaningful comprehension of the sixth amend-
ment mght to counsel. Absent such comprehension of al!
the facts necessary to an understanding of the sixth
amendment right to counsel, he concludes that he could
not have knowingly waived that nght. Patterson urges
this court to hold that the State must satisfy a higher
burden to establish a knowing and intelligent waiver of

the sixth amendment mght to counsel than is necessary
to establish a waiver of the right to counsel guaranteed
by Miranda. This court recently rejected this argument
in People v. Owens (1984), 102 Ill. 2d 88, cere denied
(1984), 469 U.S. 963, 83 L. Ed. 2d 297, 105 S. Ct. 361.
The defendant in Owens argued that a higher stand.

on this question last term. (See Michigan v. Jackson
(1986), 475 US. n.10, 89 L. Ed. 2d 631, 642
n.10, 106 S. Ct. 1404, 143] n.10.) The lower courts that
have addressed this 'sSue are not in agreement. See Peo.
ple v. Owens (1984), 102 I). 2d 88, 102; see also 1 W. La.
Fave & J. Israel, Criminal Procedure sec. 6.4(f), at 472
(1984).

In Owens, the defendant was advised of his Miranda
rights and signed a waiver of those rights prior to inter.
rogation. Nevertheless, he argued that he could not have
validly waived his sixth amendment right without know.
edge of the fact that a cnminal complaint charging him
with murder had been filed. The court found that the
criendant knew he was being held for questioning in
connection with a murder. In concluding that the defend.
ant validly waived his sixth amendment right to counsel.

cerning a murder. The record establishes that Patterson
was informed of the fact that he had beeh indicted fer
murder before he gave his Statements to Officer
Gresham and Assistant State's Attorney Smith. Smith

in prejudice. (Ill, Rev. Stat. 1985, ch. 38. par. 114-8.) In
People v. Bean (1985), 109 1. 80, 92, this court
Stated that “{a] defendant does not have an automatic

— =
avoid prejudice to one of the defendants. (People vy.
Olinger (1986), 112 I. 2d 324, 345.) The decision

cretion of the trial court and will not be reversed absent
an abuse of that discretion. People v. Lee (1981), 87 TW.

This court has recognized that prejudice May occur

fendant makes extrajudicial hears3
(People v. Olinger

incul
(1986), 112 M1. Daugherty
(1984),

_ the defendan
109 Mh 90 sen d 324, 345: People v.

does
(1984), 102 Mm. 2d poy

(1959), 17 Ti. 26

off” from the scene of the urcer
court immediateiy sustained Them.

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APP. 34 1001, 1005. and People v. Manceil (2980), 89 I.
App. 3d 1101. 1204, as authonty for his position. Our

- No. 63149 the judgment of the
firmed.
Motion allowed,
Judgments affirmed

OPPOSITION
BRIEF

ee 7 en ~ —
Court U
NO. 86-7059
aE IN THE

5
FILED

JUN 29 \987

JOSEPH F SPANO. ue
CLERK

TYRONE PATTERSON,
Petitioner,
vs.

THE PEOPLE OF THE STATE OF ILLINOIS,
Respondent.

|

RESPONDENT'S BRIEF IN OPPOSITION

NEIL F. HARTIGAN,
Attorney General
State of illinois

MARK L. ROTERT,
Assistant Attorney Ceneral
100 West Randolph Street
Suite 1200
Chicago, Illinois 60€01

Attorneys for Respondert.

RICHARD M. DALEY
State's Attorney
Cook County, Illinois,
574 Richard J. Daley Center
Chicago, Illinois 60602
(312) 443-5496
THOMAS V. GAINER, JR.,°
KENNETH T. McCURRY
STEPHEN M. SUTERA,
Assistant State's Attorneys
n .

“attorney of Record.

QUESTION PRESENTED FOR REVIEW

Whether @ criminal defendant, who was informed that he was
indicted for murder, knowingly and intelligently waived his Sixth
Amendment Right to counsel where he was given his Miranda warn-
ings on two occasions, where defendant signed a Miranda waiver.
where defendant dcknowledged that he understood his rights, and
where he acknowledged that he was making the statement of his own

free will.

aa
TABLE OF CONTENTS

Page
Question Presented for Review........................... i
ne a i iccchendeshonceodeccecoetodesunceseti« ai
EE eee aaa
SP Pi tneseedsonscececcccessccoeoocetecetectesesnc i
Gt ienekesadenbebeteceoddocecédoteesekékeneeesec 2
Constitutional Provisions Involved...................... 2
Statement of the Pects.... ccc ccc cece ccc cc cccccuce 2
Reason for Denying the Writ:
A CRIMINAL DEFENDANT. WHO WAS INFORMED
THAT HE WAS INDICTED FOR MURDER. KNOWINGLY
AND INTELLIGENTLY WAIVED HIS SIXTH AMENDMENT
RIGHT TO COUNSEL WHERE HE WAS GIVEN HIS
MIRANDA WARNINGS ON TWO OCCASIONS. WHERE
DEFENDANT SIGNED A MIRANDA WAIVER. WHERE
DEFENDANT ACKNOWLEDGED THAT HE UNDERSTOOD HIS
RIGHTS, AND WHERE HE ACKNOWLEDGED THAT HE wAs
MAKING THE STATEMENT OF HIS OWN FREE WILL...._.. 3

ee 1 eer

Fock ses ovens 102 111.26 68.
-E.26 261 (1964) . deres?

469 U.S. 963, 105 S.Ct. i

“ee ee ee ee

3.4.5

NO. 86-7059
ON THE
SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 19386

TYRONE PATTERSON,
Petitioner
vs.

THE PEOPLE OF THE STATE OF ILLINOIS,

‘ Respondent.

ON PETITION FOR WRIT OF CERTIORARI TO THE
SUPREME COURT OF ILLINOIS

RESPONDENT'S BRIEF IN OPPOSITION

OPINION BELOW

The petitioner was found gGuiity of the offense of
murder following a trial in the Circuit Court of Cook Cougsy
Illinois. The decision of the trial court was affirmed by the
Illinois Appellate Court (People v. Patterson. 140 13] .App.32
421, 486 N.E.2d 1283, January 21, 1986) The @decision of the
Illinois Appellate Court was affirmed by the Illinois Supreme

Court (People-v. Patterson, No. 63149, April 16, 1987). See
Appendix A.

JURISDICTION

Petitioner invokes this Court's jurisdiction pursuant
to 28 U.S.C sec. 1257(3). However, as treated more fully below,
respondent submits that no good reason exists for this Court to
exercise its sound judicial discretion and grant the instant
Petition for writ of certiorari.

CONSTITUTIONAL PROVISIONS INVOLVED

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 com-
mitted, which district shall have been previously ascertained by
law, amd to be informed of the nature and cause of the accusa-
tion; 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 XIV

Section 1. All persons born or naturalized in the
United States and subject to the jurisdiction thereof, are citi-
zens of the United States and of the State wherein they reside.
No state shall make or enforce any law which shall abridge the
privileges or immunitites 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 the laws.

STATEMENT OF FACTS

The facts relevant to the issues raised by petitioner
are adequately set forth in the Opinion of the court below, and
need not be restated at length. Respondent directs this Court's
attention to the argument portion of this Brief in Opposition,
wherein the facts pertaining to the claim of error are discussed.

REASON FOR DENYING WRIT

A CRIMINAL DEFENDANT, WHO WAS INFORMED
THAT HE WAS INDICTED FOR MURDER, KNOWINGLY
AND INTELLIGENTLY WAIVED HIS SIXTH AMENDMENT
RIGHT TO COUNSEL WHERE HE WAS GIVEN HIS
MIRANDA WARNINGS ON TWO OCCASIONS, WHERE
DEFENDANT SIGNED A MIRANDA WAIVER, WHERE
DEFENDANT ACKNOWLEDGED THAT HE UNDERSTOOD HIS
RIGHTS, AND WHERE HE ACKNOWLEDGED THAT HE WAS
MAKING THE STATEMENT OF HIS OWN FREE WILL.

It is the petitioner's contention that Miranda warning
are not sufficient to assure that a charged defendant can «now-
ingly and intelligently waive his right to counsel at his post-in-
dictment interrogations. The respondent maintains that the
record clearly reflects that defendant's Sixth Amendment right to
counsel was protected.

This Court has long recognized that once adversary
proceedings have commenced asainst an individual he has the
right to legal representation when the government interrogates

ae

him. Brewer v.§ Williams, 430 U.S. 387, #01, 97 §.ct. ie

(1977); Michigan v. Jackson, 475 U.S. , 106 §.Ct. 1404 (198

The Sixth Amendment right to counsel is automatically invoked as

32

res ar

soon as adversary proceedings begin without any assertion of that
right by the accused. Brewer, 430 U.S. at 405.

Nevertheless, an accused may waive his rights under the
Sixth and Fourteenth Amendments. Id In determining the ques-
tion of waiver, it is incumbent upon the State to prove “an
intentional relinguishment or abandonment of a known right o:

~

privilege.” Id., quoting Johnson v. ZerDdst. 304 U.S. #58 40%

58 S.Ct. 1019 (1938). The courts indulge every reasonable pre-
sumption against the waiver of fundamental constitutional rights

and do not presume the acquiescense in the loss of fundamenta.

rights. Johnson, supra, 304 S.Ct. at 464. The determination of
whether there has been an intelligent waiver of one's right to
counsel must depend, in each case, upon the particular facts and
circumstances surrounding that case, including the background,
experience and conduct of the accused. Id.; Brewer, supra, 430
U.S. at 403-404.

Petitioner submits that this court should hear the
instant case because the validity of the respondent's waiver can
not be determined. However, the record clearly reveals that the
Illinois Supreme Court correctly held that petitioner voluntarily
and intentionally waived his right to counsel.

Petitioner was informed by Officer Gresham that he was
indicted for murder. Petitioner then was informed that Thomas
and McCune were also indicted. Petitioner immediately asked why
Harmon was not indicted and told the officer that Harmon had
murdered the victim. Petitioner also stated that Harmon told his
neighbor about it.

At that point, Officer Gresham stopped petitioner and
gave him a Miranda waiver form. Officer Gresham read the warn-
ings aloud as petitioner read along with him. After petitioner
initialed each warning and signed the waiver, he explained his
involvement in the murder.

Later in the day, an assistant state's attorney inter-
viewed petitioner. Initially, the assistant verified that peti-
tioner signed and initialed the Miranda waiver which Officer
Gresham had given him. Petitioner then indicated that he under-
stood his rights. The assistant then gave petitioner his Miranda
warnings and also advised him that the assistant was not his
attorney. Petitioner indicated that he understood and that he
was making the statement of his own free will. Petitioner then
gave the assistant a detailed account of the murder.

The Illinois Supreme Court affirmed the lower court's

decisién and found that the above facts reflect petitioner's know-

ing and intelligent waiver of his Sixth Amendment right to coun-
sel. In arriving at its decision, the Iilinois Supreme Court
relied on People v. Owens, 102 111.24 88, 464 N.E.2d 261 (1984),
cert. denied 469 U.S. 963, 105 S.Ct. 361 (1984).

In Qwens, the defendant contended that in order for him
to meke an understanding waiver, the Sixth Amendment entitled hin
to know that a complaint had been filed charging him with murder.
Id., 102 111.24 at 102. The Illinois Supreme Court held that the
Gefendant properly waived his Sixth Amendment right to counsel
where the defendant in fact possessed some knowledge of the
complaint charging him with murder. Id. In addition, the defen-
Gant explicitly acknowledged in his tuppression-hearing testimony
that he knew that he was being held for questioning in a murder.
Id. The defendant was also given his Miranda warnings prior to
questioning. Id. Thus, based on the above facts, the court held
that the defendant's Sixth Amendment rights were not viclated.

As in Qwens, the facts in the instant case reveal that
the court correctly concluded that the petitioner voluntarily and
intentionally waived his Sixth Amendment right to counse..
Petitioner was aware of the gravity of his situation because he
was informed of his indictment for murder. Before he gave his
statement, petitioner was given his Miranda warnings. in addi-
tion, prior to giving another statement to the assistant state's
attorney, petitioner was once again given Miranda warnings
Petitioner also indicated to the assistant that he signed the
statement given to Officer Gresham Finally. besides indicatin
that he understood his rights, petitioner stated that he was
giving the statement of his own free will. Thus. in accord@ice
with the test put forth in Brewer, supra. the record suDstan-
tially demonstrates that petitioner knowingly and intenmtionalcy
waived his right to counsel. Thus. for all the above reasons

the petition for writ of certiorari must be denied.

CONCLUSION

Wherefore, for all the foregoing reasons the
respondent prays that this Honorable Court deny the

instant petition for a writ of certiorari.

Respectfully submitted,

NEIL F. HARTIGAN,
Attorney Genera,
State of iliinois,
MARK L. ROTERT,
Assistant Attorneys Genera,
100 West Randolph Street, Suite 1200,
Chicago, illinois 60601,

| R t.

RICHARD M. DALEY,
State's Attorney,
County of Cook,
Room 500 Richard J. Daley Center,
Chicago, illinois 60602,
THOMAS V. GAINER, JR..*
KENNETH T. McCURRY,
STEPHEN M. SUTERA,
Assistant State's Attorneys,
!.

*Attorney of Record.

8

Q Do you see Gresham's signature on there?

A Mitchum, yes, I do.

Q And do you see Tyrone Patterson's signature on
there?

A Yes, I do.

Q Are his initials on there?

A Yes, they are.

Q After Tyrone Patterson signed that statement did
you question him about the James Kevin Jackson homi-
cide?

{23} A_ I told him to continue on telling me what he
started to say.

Q How long did you talk to him for?

A Approximately 40—30, 40 minutes.

(26) CROSS EXAMINATION
BY Mr. Gevirtz:

[59] Q But it was after that statement he was stopped,
is that correct? P

A I'm not sure if it was after that statement, counsel.

Q Would your report refresh your memory as to
exactly when you stopped him to give him his rights?

A I read it.

Q Does that refresh your recollection now?

A Yes, it does.

Q It was after that statement that he was read his
rights, is that correct?

A_ It was after—which statement, counsel?

Q After the statement Mr. Patterson said Harmon
was the one who did everything. He further stated if the
officers would talk to a girl named Dorisa who lives next
door she would tell the officer that Carl had come over to
her house and told her that he had killed someone.

A That is correct.

Q And then he was read his rights, is that right?

A He was stopped at that point and given his [60]
Miranda warnings.

Q And he was also given a waiver to sign at that
point?

A That is correct.

Q And prior to the two days that he had been there,
never was he given a waiver to either execute or sign,
correct?

A_ No, he was not.

Q_ And that was the first waiver he signed?

A That is correct.

(71) GEORGE J. W. SMITH,

called as a witness on behalf of the People of the State
of Illinois, on the motion, having been first duly sworn,
was examined and testified as follows:

DIRECT EXAMINATION
BY: Mr. Calihan

[73] Q Now, when Mr. Patterson was brought in what ,
happened in there?

A Mr. Patterson came in, introduced myself to him.
He sat down. I asked him if he would like a cup of coffee
or glass of water or cigarette. He declined, taking neither
the coffee or the water but did have a cigarette.

Q. Now, incidentally, Mr. Smith, when you were speak-
ing with him, who else was present in the room?

A Just myself and Mr. Patterson.

Q And could you describe this room that you were

in?
(74) A The room is approximately twenty feet by
thirty feet, has a desk with a chair on rollers behind it
and a number of chairs in front of the desk. It was air-
conditioned and the air-conditioner was on.

Q And also at the time you saw Mr. Patterson was
he cuffed or uncuffed?

A He was not handcuffed at the time I talked to him.

10
Q Did you ever see him handcuffed at any time that
day?
A I did not.

Q Now, again after Mr. Patterson indicated that he
did not want anything other than the cigarette, did he
accept your cigarette?

A Yes, he did. I believe he had his own pack with
him.

Q@ What was the next thing that happened?

A At that time I showed him a document entitled
Miranda Rights Form, which bore the signature of a
Tyrone Patterson and a T.P. initialing on each of five
paragraphs on the document. I asked him if he recog-
nized that document.

@ When you showed him the document with the
initials and the signature on it, what did he tell you?
'75| A He told me that it was his signature on the
bottom of the document and he did initial each one of the
five paragraphs. 1 asked him if he understood that
document. He stated to me that he did. I also asked
him if he had any questions concerning that document
and he stated that he did not. I then read him the entire
contents of the document and at the end of it asked him
again whether or not he understood the rights that were
enumerated. He said he did. I asked him again if he
had any questions. He stated to me that he did not.

Q Now, if I may interrupt you for one moment, Mr.
Smith. I’m showing you what's been marked as People’:
Exhibit No. 4. Can you take a look at that and identify
what that is?

A Yes, I can identify it because it has my signature
on the bottom of it. This is the form of rights that I both
showed to Mr. Patterson and read to him from.

Q And People’s Exhibit No. 4 is what you were just
referring to?

A Yes, it is.

ll

Q After you told him the Miranda rights and showed
a _ Exhibit No. 4, did you tell him [76] any-

ng

A Yes, I did. I explained to him that I was an
Assistant State’s Attorney working in felony review,
assisting the police in the investigation of a murder
which had allegedly occurred on the 21st day of August,
at about 3:30 in the morning. I asked him if he under-
stood that. He replied that he understood that I was not
his attorney, that I was helping the police in a murder
investigation.

Q Now, after you had given him his rights and told
him who you were and what you did, at that time did
you ask him anything further concerning this case?

A Yes, I did. I asked him if at this time he wished
to make a statement. He replied that he did. I asked him
if any threats or promises had been made to him to induce
him to make this statement. He stated that no one had
threatened him or made him any promises. He wanted to
talk because what he was going to tell me was the truth.

12

IN THE CIRCUIT COURT OF COOK COUNTY
COUNTY DEPARTMENT—CRIMINAL DIVISION
SECOND DISTRICT

(Title Omitted in Printing)

TRIAL PROCEEDINGS

February 9, 1984

(715| INVESTIGATOR MICHAEL GRESHAM,

called as a witness on behalf of the People of the State
of Illinois, having been first duly sworn, was examined
and testified as follows:

DIRECT EXAMINATION
BY: MR. SMEETON

[729] Q. When you got back there, what did you do?

A. Brought the defendant up from the holding cell.

That is the cells that they were kept in at that time,
and we informed them of the charges.

Q. Did you bring them up together or separately?

A. Brought them up together, but informed them
separately.

Q. Did you inform Tyrone Patterson?

A. Yes, I did.

Q. Did he ask you why you were talking to him?

A. Yes, sir.

What did he say?

He asked me how many people were indicted.

What did you tell him?

I told him three were.

Did he respond to that?

Yes, sir.

What did he say?

He asked me why wasn’t Carl Harmon indicted.
How did he know Carl Harmon wasn’t indicted?
(No audible response. )

. Did you tell him who was indicted?

] A. Yes.

Who did you tell him?

He was, Juan Me Cuen, and David Thomas.

ee ea Sian yan told bint

Carl Harmon did everything.

What did you do then?

After another sentence or two I stopped him.

What were the other sentences?

He stated that if I could speak to a person by the
name of Deresa who lived nextdoor. She would tell me
that Carl had stated that he had killed someone that day.
Did you subsequently talk to Deresa?
Yes, sir, I did.

After he told you that, what did you say to him?
I stopped him at that point.

What did you do then?

I gave him a Miranda Warnings waiver.

And what is a Miranda Warnings waiver?

. It’s a list of the Miranda Warnings where the
defendant can read for himself or have them read to him.
He initials each one with the date and time and witnessed
by either the officer or those who are [731] present.

Q. And in this case what did you do with that
—— Warnings waiver as far as Tyrone Patterson
goes

A. Gave it to Tyrone Patterson.

POPOPOPOLZO PO PO>rPOrO>rO

>OPO>rO>O

14
Q. Did he read it?
A. Yes.
Q. Did you read it?
A. Yes, I did.
Q. Aloud or to yourself?
A. I read it aloud, and he head [sic] it to himself.
Q. After he read it, what did he do with it?
A. He initialed each warning, and he signed it at the

bottom along with the date and time.

Q. Did anyone else sign it?

A. | affixed my signature to it along with my partner,
Carlos Mitchem.

Q. I show you what I have marked as People’s Ex-
hibit 29 for Identification. Do you recognize what People’s
Exhibit 29 for Identification is?

A. Yes.

Q. What is this?

A. Statement of Miranda Rights.

Q. Is that the warning form you just talked about?

A. That's correct.

(732) Q Is your signature on that?

Yes.

Q. Is your partner’s signature on there?
A. Yes, it is.

Q. Is Tyrone’s signature on there?

A. Yes, sir, it is.

Q. After Tyrone Patterson signed the waiver of his
rights, did you ask him about the homicide investigation?

A. Yes, sir, I did.

Q. Did he tell you anything?

A. Yes, sir, he did.

Q. What did he tell you?

A. I told Mr. Patterson to continue with what he
was telling me before I stopped him.

MR. GEVIRTZ: Object, same basis as before trial.

THE COURT: Overruled.

THE WITNESS: At which time he indicated that he
was standing in front of David Thomas’ house on the

>

15

night in question along with two other subjects, one Juan
Me Cuen and Carl Harmon; that a subject known to
him as Pudge or James Kevin Jackson pulled down the
street in a vehicle at which time Car] Harmon asked him
what he wanted.

Pudge stopped. Carl Harmon approached the [733]
car, removed the keys, struck Jackson in the face. They
all—at which time a fight ensued between he and the
others. He was pulled from the car. He indicated that
Pudge had struck him and that he had struck him back
several times.

Q. Did he say what he struck him back with?

A. He struck him with his fists several times. The
first time during the fight the shoe came off, and he
struck him several times with the shoe.

Q. Let me ask you this: Did he say whether or not
David Thomas was there when Pudge pulled up?

A. Yes, sir, he did.

Q. Continue.

A. He was put back in the car. He stated by Juan
and Carl. The car was driven to the deadend of Dewey.
At that point the deceased was removed from the vehicle
at which time Juan was sent away, and he never re-
turned.

Q. Did he say what Juan was sent away for?

A. He didn’t state to me what he was sent away at
that time for.

Q. Go ahead.

A. He stated that Carl used severa) clay boulders
in the area to beat the deceased about the face and the
[734] head and to—also throw him in a mud puddle.

Q. How long did this conversation you had with Ty-
rone Patterson last?

A. ‘No audible response. )

Q. Approximately.

A. Approximately forty-five minutes.

16
[792] GEORGE JAMES WILLIAM SMITH,

called as a witness herein on behalf of the State, having
been first duly sworn, was examined and testified as

follows:
DIRECT EXAMINATION

BY MR. CALIHAN:

[794] Q. And after speaking with Officer Gresham
what did you do?

A. Officer Gresham led me back to the supervisor’s
office of the detective division at the rear of the building
on the second floor. I there went in and sat down behind
a desk and he brought in a male [795] black individual.

Q. Now, as you look around this courtroom today do
you see the male that you saw brought in by Officer
Gresham here in court today?

A. Yes. I do.

Q. Can you point out this fellow?

A. Yes. The man with the striped shirt on sitting at
the table between the two gentlemen in suits.

MR. CALIHAN: Indicating for the record the in-
court identification of the defendant, Mr. Tyrone Pat-
terson.

Q. Now, when Officer Gresham walked in here, walked
into that room that you were in with Mr. Patterson whom
you just identified, what was said at first?

A. I introduced myself to Mr. Patterson and gave
him my name, and asked him to be seated.

Q. And when the defendant was seated did the officer
stay in the room or did he leave?

A. The officer left the room.

Q. Can you describe this room that you were in when
you were in there with Mr. Patterson?

A. The room is approximately 20 feet by 30 feet.
It has a desk and one chair behind the desk, and a | 796]
number of chairs in front of the desk. The room was air
conditioned and the air conditioner was on.

-

17

Q. Now, what was the first thing that you said to
Mr. Patterson after introducing yourself by name?

A. I showed Mr. Patterson a previously executed
Miranda rights form which contained the initials . ee
before each of five paragraphs appearing on the docu-
ment, and contained the signature of Tyrone Patterson on
the bottom of the form.

I asked Mr. Patterson if he had read that form, and
if he understood the rights that were enumerated on that
form, if he had initialed each of those paragraphs, and
if he had signed the document.

Q. What did he say when yeu showed him the form
and asked him those questions?

A. He stated to me he had previously read the form,
he did understand his rights. At that time I read him
the complete form and asked him at the end whether he
understood the rights that I had just explained to him.
He told me that he did.

I then asked him if he had any questions about the

rights that I had just told him about. He said he did not.
At that juncture I signed the bottom of the form.
[797] Q. Now, Mr. Smith, directing your attention to
what’s been previously marked as People’s Exhibit No.
29, I ask you to take a look at People’s Exhibit No. 29,
and what is that that I just handed you?

A. That’s a statement of Miranda rights form.

Q. When is it you saw People’s 29 before that waiver
form?

A. On the 23rd day of August at about 5:45 p.m. in
the supervisor’s office in the Evanston detective division.
This is the form I showed Mr. Wright—or Mr. Patterson,
and this is the form he indicated he had initialed and
signed, and this is also the form I read to him and signed
subsequent to reading.

Q. How is it that you're able to identify People’s 29°

A. Because of my signature on the bottom of the form.

i8

Q. And was that signature, in fact, placed there by
you?

A. Yes. It was.

Q. Now, incidentally, Mr. Smith, when you spoke to
Tyrone Patterson could you describe what condition he
was in?

A. Mr. Patterson was not handcuffed. He was [798]
dressed in a blue basketball jersey with the letters—with
the number 22 on it—a pair of blue jeans and gym shoes.
He appeared to me to be bright and alert.

@. Was he offered anything when he came in?

A. Yes. I offered him coffee or water, or a cigarette.
He declined the coffee or the water, but he did accept the
cigarette.

Q. Now, Mr. Smith, after you had gone over his
rights again with Mr. Patterson, did you tell him what
you—who you were and what you were doing there?

A. Yes. I explained to him that I was an assistant
state’s attorney working in felony review, and assisting
the police in a murder investigation.

I informed him that I was not, in fact, his attorney
but an attorney helping the police. I asked him if he
understood that.

Q. What did he say?

A. He said he understood that I was not his lawyer,
that I was working with the police on a murder investi-
gation.

Q. Now, at that time did you acquire any additional
information of Mr. Patterson concerning his custody?

A. Yes. I asked Mr. Pattersen how long the police
had held him in custody. He informed me he [799] had
been in custody since the 21st day of August.

I asked him how he had been treated bv the police, and
he said he had been treated well by the police, and he
had been fed and he had rested okay.

Q. Okay. Did he indicate at that time why he was
making this statement?

A. Yes. He told me he was making a statement of
his own free will with no threats or promises being made

19

to him, and he was making the statement voluntarily
because it was the truth.

Q. Now, did this individual, Mr. Patterson, supply
you with any additional background material?

A. Yes. He told me his name was Tyrone Patterson,
that he was 17 years of age, resided at 2121 North
Darrow Street in Evanston with his mother, Portia
Patterson, his brothers and his sisters.

He told me that since December of 1983 he had been
employed at the Noyes Cultural Arts Center on Noyes
Street in Evanston, Illinois.

Q. After he supplied the background information,
after you had given him his rights and introduced your-
self and talked about how he had been treated, did you
have a conversation relative to the incident on the 21st
of August?

{800} Yes. I did.

Q. Could you please tell us what Mr. Patterson told
you about what happened that night, or that early
morning?

A. Patterson told me he had been at a party at about
2:30 in the morning at Church and Dodge Streets in
Evanston. He told me there were about 75 people at that
party, nine Vice Lords as well as between 30 and 40
Black Mobsters.

He told me that he had been on the gate of that party
and observed while he was on the gate of the party a fight
break out between a person known to him as Peelhead.
and a number of members of not the Black Mobsters but
the Vice Lords; that he got in between the fight and tried
to break it up, that after he got in between the fight
Peelhead told him, “Let's fieht.”

He told me that he said to Peelhead. “I do not wish
to fight.” At that time Peelhead swung at him and missed.
Patterson told me he swung and missed Mr. Peelhead. and
that a fight commenced between him ond that individual.

. * * °

20

(802] Q. Mr. Smith, you indicated that he told you
about a fight that he had with Peelhead, is that correct?
{803} A. That's true.

Q. Did he tell you how the fight happened and what
happened at the end?

A. He told me that he was losing the fight with Peel-
head when some of his friends stepped in and pulled
them apart.

He said at that time that the Black Mobsters that were
present at the party began fighting with the Conservative
Vice Lords. At that time he, McCune, Thomas, and
Harmon ran away from the party with a number of
Black Mobsters chasing them.

Q@. And after Mr. Patterson told you that, did he
tell you where they next went, namely he and the three
other individuals that you just mentioned?

A. Yes. He said they ran to a place called the 1623
Club on the corner of Dewey and Simpson Avenues. He
said that two Black Mobsters followe’ them there, indi-
viduals known to Patterson as Andre and as a Blue Moon,
whose name was Vince Smith, Vincent Smith.

Q. Could that have been Melvin Smith?

A. Yes, Melvin Smith.

[806] MR. CALIHAN: Q. Okay. Mr. Smith, did Mr.
Patterson indicate that there was a fight on that corner
at that time between Andre and Blue Moon and them-
selves?

A. Yes. He told me that he heard—

THE COURT: Without going into the facts did he
indicate there was a fight at that time?

A. Yes. He did.

Q. Okay. Now, did he indicate what happened after
the fieht?
(807! A. Yes. He did.

Q. What was that?

21

A. He said that he observed four ‘carloads of Black
Mobsters pull up, and when he observed that that he,
Thomas Harmon, and McCune, ran from the location.

MR. SPECTOR: Objection. .

THE COURT: The jury is directed to disreggrd any
other name other than the defendant Patterson.

MR. CALIHAN: Q. Now, Mr. Smith, after Mr. Pat-
terson indicated that they ran from the location, where
did they go? What happened?

A. He told me they ran to Mr. Thomas’s house which
was on Dewey.

Q. Okay. ;

A. They remained there for about five minutes. Then
they ran to Patterson’s house on Darrow. When they
arrived there they heard a number of gunshots, saw two
carloads of Black Mobsters pull up, and then split up.

Q. And when he indicated that they split up, did he
tell what happened to them after they split up.

A. Patterson told me that he ran into his house, and
the other three ran away, that a short time later [808]
the three came back and they all went back to Mr.
Thomas’s house on Dewey.

Q. Incidentally, when they first went from David
Thomas's house, which is where they went to right after
the corner incident, did they indicate how they went
from David Thomas’s house to Patterson’s house? Was
it in a group or did they split up at that time also, if
you recali?

A. I believe that he said they went together in a
group.

Q. Now, Mr. Smith, you indicated at some poigt when
they were at the Patterson house they were split up, is
that correct?

A. Yes.

Q. And after they had come back together again what
was the next thing that happened at the Patterson house?

A. Patterson told me that they were in front of his
house when they saw a maroon Chevrolet Nova pull up

22

containing an individual that Patterson told me whose
name was Pudge.

Q. Now, when the car, the maroon Nova pulled up,
whose house were they in front of at that time?

MR. GEVIRTZ: Objection. Asked and answered.
{809} MR. CALIHAN: Judge, if I could clarify this.

THE COURT: I'll let him answer.

THE WITNESS: They were in front of Thomas's
house.

MR. CALIHAN: Q Okay. Now, did Patterson in-
dicate what happened when the maroon Nova pulled up?

A. He said that he saw Pudge driving the vehicle,
that Pudge called out, “What do you want?” He heard
Harmon relay, “What do you mean what do we want,”
saw Harmon walk over to the maroon Nova, get in it,
and begin hitting Pudge.

Q. Did Patterson tell you what he did at that time?

A. Patterson told me he walked up to the car and told
Harmon that Pudge was no longer a member of the Black
Mobster street gang.

Q. What happened then?

A. Harmon, according to Patterson, then dragged
Pudge out of the vehicle and dragged him towards a
grassy area.

Q. Did Patterson tell you what he did at that time?

A. Patterson told me his topsider shoe had come off
while Harmon was dragging Pudge, and that he had
hit Pudge with the shoe.

Q. Now, what did Patterson tell you next happened
(810| after he had hit the victim with his own shoe?

A. He then saw Harmon strike Pudge, and then drag
him back to the automobile, and he heard Harmon say,
“He knows our names, we've got to kill him. I just got
out of prison and I can’t go back.”

Q. What did they do at this time? What was the
next thing that happened?

A. They all got into the vehicle. McCune was—

MR. SPECTOR: Objection. Objection, Judge.

23

THE COURT: Overruled.

THE WITNESS: They all got in the vehicle. Me-
Cune was driving. Patterson and Pudge were in the back
seat.

MR. CALIHAN: Q. Now, at this time was there a
break in the conversation that you're having with Mr.
Tyrone Patterson?

A. Yes. At that time I asked Mr. Patterson if he
would again care for a drink of water or a cup of coffee,
or a cigarette. He again declined the water and coffee
but he did accept the cigarette.

Q. Did Mr. Patterson at that time have a cigarette?

A. Yes. He did.

Q. After the cigarette was completed did you {811}
continue in the statement?

A. Yes. I did.

Q. What did Patterson tell you?

A. Patterson then told me after they were in the
vehicl

MR. SPECTOR: Objection.

THE COURT: Overruled.

THE WITNESS: —they traveled down to the end of
the block, which was the entryway to a park, that upon
approaching the park he heard Harmon tell McCune to
turn the lights off on the vehicle.

The vehicle then drove through the park and down
to a canal which is located in the middle of the park.

Q. What did he say happened then’?

A. He said when they arrived at the canal they all
got out of the vehicle, Harmon was dragging Pudge and
striking and hitting him, that a short time after he
heard Harmon tell McCune to go get a knife.

Q. Did Patterson say that he said anything at this
time?

A. Patterson told me that he told McCune and Har-
mon that the knife was at his house.

Q. What happened then’

(812) A. MeCune then drove the vehicle away.

Q. Did Patterson tell you what happened at the scene
after McCune had left the scene?
A. He said he saw Harmon knock Pudge down and

. to
get under the water, heard a gurgling noise, and then he
heard Harmon say, “He’s dead, let’s get out of

[813] MR. CALIHAN: Q. Referring again specifi-
cally to Patterson and Harmon, did he tell you where
those two went”

A. He told me that he and Harmon had ran back to
Patterson's hous® because Harmon was staying with a
Mr. Thomas, who was not related to anyone, and his girl
friend, who resided directly next door to Patterson's
home.

Q. Did he say what happened?

A. He said he went into his home, and a short time
later Harmon came to his door and said that Thomas and
his girlfriend would not let him stay the night at their
home. Patterson told me he then let Harmon sleep in his
living room chair.

Q. Now, did Patterson indicate anything else after
he related to you the conversation—basically what hap-
pened that early morning hours from start to finish, did
he tell you anything else at the end of the statement?

Let me rephrase the question.

Did he indicate to you at the end of the [814] state-
ment why he was telling you these things?

A. Yes. At the end of the statement I asked him if
he had made the statement voluntarily, of his own free

will with no threats or promises made to him during the
statement to get him to talk to me. He said he had

the statement because it was the truth and because
had been a friend of his.

ILLINOIS APPELLATE COURT
FIRST DISTRICT

FIRST DIVISION
January 21, 1986

84-720

a4.ag9 Consol.

PROPLE OF THE STATE OF ILLINOIS,
Plaintiff-Appellee,

vs.

TYRONE PATTERSON and Davin THOMAS,
Defendants-A ppellants.

Appeal from the Circuit Court of Cook County
Honorable Jack Stein, Judge, Presiding

JUSTICE O'CONNOR delivered the opinion of the
court:

Following a joint trial, defendants Tyrone Patterson
and David Thomas were found guilty of murder. (Til.

Rev. Stat. 1983, ch. 38, par. 9-lia'(1).) Patterson was
sentenced to 24 years imprisonment; Thomas to 28 years.
Their appeals have been consolidated.

The following issues are presented for review: (1)
whether the trial court erred in not suppressing certain
statements by Patterson that allegedly were made in-
voluntarily and in violation of his sixth amendment right
to counsel; (2) whether the trial court erred in denying
Thomas’ motion for severance; (3) whether Patterson
was denied his right of confrontation by restrictions

27

placed upon cross-examination by the trial court; and (4)
whether various instances of prosecutorial misconduct
deprived defendants of a fair trial. We affirm.

The following facts were adduced at trial. In the early
morning hours of August 21, 1983, James Kevin Jackson

McCune testified at trial that at approximately 3 a.m.
on Sunday, August 21, 1983, the victim drove up in front
of Thomas’ house located at 2113 Dewey Street in Evans-
ton. MeCune and the defendants were sitting on the front
steps with a third member of the Vice Lords, Car! Har-
mon. They approached the car and apparently recog-
nized the victim. After words were exchanged, the vic-
tim was pulled from the car and beaten. The victim was
dragged back into the car and driven to a small park a
short distance away. There, the victim was beaten again
and thrown face down in a large puddle of water. He
was found dead the next day.

The defendants and McCune were arrested on unre
lated misdemeanor charges on August 21, 1983. Harmon
was not located until after the trial. MeCune provided a
statement implicating Patterson, Thomas and Harmon in
the murder of Jackson. Patterson initially denied knowl-
edge of the homicide, but eventually gave an inculpatory
statement to police on August 23, 1983. He had been in
custody for 43 hours and was under indictment for the
murder at the time he made his statement.

Prior to trial, Patterson moved to suppress his state-
ment to police, and Thomas moved to sever his trial from
Patterson's and to exclude evidence of gang membership.
The court denied the motions,

At trial, McCune testified as a state
State also presented the testimony of Lequi
ex-girlfriend of Thomas’, and her mother, Nancy
who testified Thomas “as” one of the men i
initial attack on the victim. Evanston
Michael Gresham testified about Pa :
confinement and the circumstances surrounding
statement to the police. Assistant State’s Attorney
Smith testified that Patterson repeated his statement
the same evening.

Patterson did not testify at trial. However,
testified that he withdrew from the incident
initial attack on the victim. He stated that he followed
the car on feet to the park where he stopped 25 feet away
from the others and watched Harmon “making
motions” with his hands. He hten walked home.
closing arguments, the jury found Thomas and Pat
guilty of murder.

After
terson
Initially, Patterson contends that the trial court erred
in refusing to suppress his statement to police. He claims
that the statement was taken in violation of his sixth
amendment right to counsel, and that the circumstances
surrounding his confinement rendered it involuntary. The
State asserts that Patterson waived his sixth amendment
argument by failing to raise it at trial or to include it
in his pest-trial motions. Defendant asserts that
exceptions to the waiver rule are applicable here. In
view of our disposition of the case, we wil! assume with-
out deciding that this issue was not waived.

At the hearing on the motion to suppress, Officer
Gresham testified that Patterson was arrested on un-
related misdemeanor charges on August 21, 1983 He
received Mirende warnings before he was placed in a
lockup for the night. The next day, he was visited by his
mother and his aunt. On August 23, 1983, Gresham in-
formed Pattersen that he had been indicted for murder.
Patterson allegedly asked who else had been indicted and

A
Ube

;

Gresham told him that Thomas and McCune had been
indicted. Patterson asked why Harmon had not been
indicted since “he did everything.” Gresham stopped
Patterson and gave him Miranda warnings again. He
also had Patterson sign a written Miranda waiver form.
Patterson then described how he, Thomas, McCune and
Harmon initially attacked the victim and then drove him
to the park where Harmon beat the victim with clay
boulders and threw him in a mud puddle.

Assistant State’s Attorney Smith testified that, at
sbout 5:30 p.m. on August 23, 1983, he questioned Pat-
terson about the Miranda rights waiver form and the
conditions of his confinement. Patterson said he under-
stood his rights, had no complaints about his treatment,
and then he described the incident to Smith.

At the hearing, Patterson denied receiving any warn-
ings about his right to counsel before he gave his state-
ment. He testified that on August 23, Gresham told him
that he had been indicted for murder and that Harmon
would testify. Gresham also indicated that if Patterson
told him what he knew, it would go better for him. He
did not sign the Miranda rights waiver form until after
he gave his statement.

There is no question but that at the time Patterson
gave his statement to police he was under indictment for
murder and his sixth amendment right to counsel had
attached. What is at issue is whether he effectively
waived this right prior to making the statement.

The standard consistently applied in this area is whether
the State has proven an intentional] relinquishment or
abandonment of a known right or privilege. (Brewer v.
Williams (1977), 403 U.S. 387, 404, 51 L.Ed. 2d, 424,
97 S. Ct. 1232; People v. Aldridge (1980), 79 Ill. 2d 8&7,
93, 402 N.E.2d 176.) Patterson relies on federal court
decisions for the proposition that the sixth amendment
requires a higher standard for showing waiver of the

30

right to counse] than that required for Miranda waivers.
Although the United States Supreme Court and the Illi-
nois Supreme Court have not decided this question,
(Brewer v. Williams (1977), 430 U.S. 387, 405-06;
People v. Owens (1984), 102 Ill. 2d 88, 101-02, 464 N.E.
2d 261), we believe the result and analysis used in
Owens is applicable here.

In Owens, the court held that an accused had effectively
waived his sixth amendment right to counsel prior to
making certain incriminating statements where:

“defendant explicitly acknowledged in his suppression-
hearing testimony that he knew he was being held
for questioning in a murder. Thus, he was aware of
the severity of the situation facing him and, since
he had been given his Miranda warnings, he knew he
had the right to have an attorney present during
questioning.” 102 I)]. 2d 88, 102-03.

In the case at bar, Patterson knew he was under in-
dictment for murder, so he was aware of the gravity of
his legal situation. Because he had been given Miranda
warnings, he was informed of his right to have an attor-
ney present during questioning. These facts and cir-
cumstances are sufficient to show that Patterson intelli-

gently waived his known right to counsel before making
his statements to police.

Patterson also contends that his statements were co-
erced and involuntary because he was denied his right
to post bail, confined for 43 hours without food or sleep,
and denied medica] attention for a previously incurred
jaw injury.

In determining the voluntariness of an inculpatory
statement, the totality of the circumstances surrounding
the making of the statement must be considered. (People
v. Simmons (1975), 60 Til. 2d 173, 326 N.E.2d 383;
People v. Wilson (1974), 16 Ill. App. 3d 473, 306 N.F.2d
§26, modified, 60 Ill. 2d 626.) Even where individual

31

facets of police conduct would not be coercive if taken
singly, a combination of circumstances may act together
to create sufficient pressure on the accused to produce
a confession that is not “voluntary.” (People v. Wash-
ington (1980), 90 Ill. App. 3d 631, 634, 413, N.E.2d
170, cert. denied, 454 U.S. 846.) Here, the trial court
found that the circumstances present in this case, whether
taken singly or in combination, did not render Patter-
son’s statement involuntary. We will not reverse a trial
court’s finding of voluntariness unless it is against the
manifest weight of the evidence. People v. Rhoads
(1979), 73 Ill. App. 3d 288, 308, 391 N.E.2d 512.

Patterson contends that his statement was the result
of an illegal detention caused by a denial of his right to
post bail. He alleges that his release on bond was pre-
vented when police officers told his mother that no bond
had been set, when in fact his bond had been set at
$2,000, so a cash deposit of $200 was required for his
release.

While the police were not obligated orally to advise
defendant of the right to post bail (People v. Seymour
(1981), 84 Ill. 2d 24, 30-31, 416 N.E.2d 1070), the ree-
ord reveals that Patterson and his mother were apprised
of the amount of his bond. There is no evidence that
either Patterson or his mother attempted to tender the
bond money. The allegation by Patterson’s mother that
she had sufficient funds to pay the bond was controverted
by her own testimony on cross-examination and by Officer
Gresham’s testimony. The trial court could properly con-
clude that Patterson’s statements were not caused by a
denial of his right to post bail.

Even though Patterson had been confined for 43 hours
when he made his statement, it is clear from the record
that he was not subjected to impermissibly long periods
of interrogation. He was not isolated or refused access
to friends and relatives. He was not denied food or op-
portunities for rest. Furthermore, allegations that he
was denied medical attention were unsubstantiated and

32

contradicted by Officer Gresham and Assistant State’s
Attorney Smith. Clearly, the trial court’s conclusion that
Patterson’s statement was made voluntarily was not
against the manifest weight of the evidence.

Thomas contends that the trial court erred in denying
his motion for severance. However, the general rule is
that defendants jointly indicted should be jointly tried
unless a separate trial is required to avoid prejudice to
one of the defendants. (People v. Lee (1981), 87 Ill. 2d
182, 187, 429 N.F.2d 461.) Severance is justified where
there are antagonistic defenses or where, in a joint trial,
an admission of one defendant implicating a co-defendant
is introduced at trial and the defendant who made the
admission does not testify. (People v. Daugherty (1984),
102 Ill. 2d 533, 541-42. 468 N.E.2d 969.) Thomas claims
that severance is required under either rationale.

We find that Patterson’s defense was not antagonistic
to Thomas’ defense that he was near the scene of the
crime, but did not ‘participate in it. We need not decide
whether the reverse is also true since only Thomas raises
the issue of antagonistic defenses. Murphy (1981), 93
Ill. App. 3d 606, 610, 417 N.E.2d 745,

Thomas also claims that severance was required be-
cause of Patterson’s pre-trial statement. Patterson’s orig-
inal statement to police stated that Thomas was in the
car as it drove to the park and that he was present at
the scene of the murder. The trial court redacted Patter-
son’s statement to eliminate all references to Thomas
being in the car or at the park. But when Officer
Gresham introduced the essence of Patterson's statement
at trial, he testified that Patterson said he ran out of
the park with Harmon while Thomas ran off in a dif-
ferent direction. Counsel’s objection was sustained and
the jury was instructed to disregard it. Thomas now
claims that this violation of the trial court’s redaction
order prejudicially implied that he was present at the

ee we

scene of the crime. However, Thomas testified that he
stood about 25 feet from where the crime was committed
and then walked out of the park shortly before the others.
Patterson's redacted statement ‘as testified to at trial)
did not contradict Thomas’ trial testimony to a significant
degree, nor did it implicate Thomas by showing a greater
connection to the crime than was shown by his own testi-
mony. Consequently, Patterson’s redacted statement did
not sufficiently conflict with Thomas’ defense to warrant
severance.

Moreover, Thomas’ reliance on People v. Trass (1985),
136 Ill. App. 3d 455, 483 N.E.2d 567, is misplaced. In
Trass, the court found Trass’ defense that he merely
witnessed the attack on the victim by his co-defendant,
Bryant, and others, was antagonistic to Bryant’s de-
fense that he was attempting to help the victim from
being robbed by the other co-defendants. (136 Ill. App.
3d 455, 460.) Severance was also required because, even
though a statement by Trass was redacted to eliminate
Bryant’s name, other evidence clearly implicated Bryant
as the perpetrator referred to in Trass’ statement. (136
Ill. App. 3d 455, 460-61.) Here, in contrast, Patterson’s
defense was not antagonistic to Thomas’ defense, and
Patterson’s redacted statement, even when considered
with other evidence, did not directly conflict with Thomas’
defense. In view of these facts and the prompt curative
action by the court, we find Trass distinguishable and,
therefore, affirm the trial] court’s denial of Thomas’ mo-
tion for severance.

In addition, Thomas claims that the prosecutor preju-
dicially attacked his moral character when he was asked
during cross-examination whether he had stopped dating
Lequita Adams, a state witness, because he had im-
pregnated another girl. Counsel's objection to this ques-
tion was sustained and the jury was instructed to dis-
regard any question to which an objection had been sus-
tained. This was sufficient to cure any error regarding

34

this isolated question. See People v. Belvedere (1979),
72 Ill. App. 3d 998, 1014, 390 N.E.2d 1239, appeal de-
nied, 79 Ill. 2d 622.

Patterson argues that the trial court’s restrictions on
defense counsel's cross-examination of Assistant State's
Attorney Smith deprived him of his sixth amendment
right to confront witnesses against him. He contends
that. if cross-examination had been allowed to continue,
he would have been able to impeach Smith by showing
that Smith violated State’s Attorney procedure by fail-
ing to preserve Patterson's statement in writing.

Defendants are allowed a wide latitude to show bias.
(People v. Wilkerson (1981), 87 Ml. 2d 151, 156, 429
N.E.2d 526.) However, the scope of cross-examination
rests largely within the discretion of the trial court, and
we will reverse its ruling only where an abuse of that
discretion results in manifest prejudice to the defendant.
People v. Owens (1984), 102 TI. 2d 88, 103.

In the instant case, Assistant State’s Attorney Smith's
testimony was not crucial to the prosecution since Officer
Gresham also testified about Patterson's statement. More-
over, the jury heard evidence that the statements of
other witnesses were preserved in writing, but Patter-
son’s statement was not. Defense counsel was permitted
to comment during closing arguments on the inferences
to be drawn from che assistant State’s Attorney's fail-
ure to preserve Patterson's statement in writing. We
find the error, if any, in limiting cross-examination wa:
harmless beyond a reasonable doubt.

Finally, Thomas contends that various comments made
by the prosecutor during his closing arguments deprived
him of a fair trial. A prosecutor is permitted great
latitude in his closing argument (People v. Hine (1980),
88 Il. App. 3d 671, 679, 410 N.E.2d 1017), and improper
remarks will not require reversal of a conviction unless
they constitute a material factor in defendant’s convic-

ee

tion. (People v. Hoddenbach (1983), 116 Til. App. 3d
57, 62, 452 N.E.2d 32.) Thomas now argues that the
prosecutor improperly expressed his personal belief in the
veracity of Juan McCune during closing arguments when
he stated:

“I turned him State's evidence a month ago. That
was a decision I had to make. I put my experience,
and what I see from the case into that, to make that
decision. And if you think I'm wrong, fine.

But, it has nething to do with the evidence against
these two, if I made a wrong decision on Juan
Macuen ‘sic'. But I had to decide, as I want you
to decide, whether or not Juan Macuen (sic) was
telling the truth.”

In the context of the argument, the prosecutor was
merely explaining how McCune became a State witness.
Because the prosecutor ultimately left the issue of Me-
Cune’s credibility to the jury's determination, we do not
believe that the prosecutor put his personal or profes-
sional reputation behind McCune’s veracity. ‘People v.
Beledere (1979), 72 Il. App. 3d 998, 1022-23; People v.
Bragg (1979), 68 Tl. App. 3d 622, 631, 386 N.E.2d
485.) In addition, we have carefully examined defend-
ant’s other assertions of error regarding closing argu-
ments and find them to be without merit.

For the foregoing reasons, defendants’ convictions and
sentences are affirmed.

Affirmed.
CAMPBELL and QUINLAN, J.J. concur.

56

SUPREME COURT OF ILLINOIS

Docket Nos. 63144, 63149

THE PEOPLE OF THE STATE OF ILLINOIS,

Appellee,

V.

DAVID THOMAS,
Appellant.
THE PEOPLE OF THE STATE OF ILLINOIS,

Appellee,

Vv.

TYRONE PATTERSON,

Appellant.

Filed April 16, 1987
JUSTICE MORAN delivered the opinion of the court:

A Cook County grand jury indicted the defendants,
David Thomas and Tyrone Patterson, and a third in-
dividual, Juan McCune, charging each with two counts
of murder (Ill. Rev. Stat. 1981, ch. 38, pars. 9-li‘a) ‘1),
9-1(a)(2)) and one count of armed violence (Ill. Rev.
Stat. 1981, ch. 38, par. 33A-2) for the murder of James
Kevin Jackson. Prior to trial, McCune agreed to testify
on behalf of the State. The State, in return, agreed to
dismiss the murder charges pending against him and
not to contest a plea of guilty to concealment of a homi-
cidal death. After a joint trial, the jury found both
defendants guilty of murder. The trial court sentenced
Thomas to 28 years’ imprisonment and Patterson to 24
years. The appellate court affirmed both defendants’ con-
victions and sentences. (140 Ill. App. 3d 421.) We al-

37

lowed the defendants’ petitions for leave to appeal under
Rule 315 (103 Ill. 2d R. 315).

The issues presented for review are: (1) whether the
trial court erred in admitting Patterson’s uncounseled
post-indictment statements to the police and an assist-
ant State’s Attorney, and (2) whether the trial court
erred in denying Thomas’ motion for severance.

On August 21, 1983, at approximately 3 a.m., the de-
fendants and Carl Harmon, all of whom were members
of the Vice Lords street gang, and McCune, who belonged
to a gang aligned with the Vice Lords, were walking
toward the 1623 Club in Evanston. When they arrived,
they saw several members of a rival gang, the Black
Mobsters, and a fight broke out. After the fight, they
ran to Thomas’ house. At trial, McCune testified that
approximately 10 minutes after they arrived, Jackson,
a member of the Black Mobsters, drove past Thomas’
house and stopped. Jackson then backed up and stopped
near Thomas’ house. Words were exchanged, and Thomas
punched Jackson in the jaw, opened the driver’s door and
began hitting Jackson. McCune testified that he ran to
the car and started to hit Jackson, while Patterson was
in the back seat of the car also hitting Jackson. Harmon
pulled Jackson out the passenger side of the car. The
defendants kicked and beat Jackson about his head and
body as he lay beside the curb. McCune also testified
that Patterson struck Jackson with his shoe two or three
times, Thomas and Harmon had each kicked and hit Jack-
son about 10 times and Harmon had “jumped on his
head.” Patterson and Harmon then lifted Jackson and
put him face down into the back seat of the car with
them. Thomas sat in the front passenger seat while
McCune drove the car approximately 1'+ blocks north
through a park to a dead end.

When they arrived, Patterson and Harmon pushed
Jackson out of the car. Harmon dragged Jackson, strik-

38

ing and hitting him, and threw him face down into a
puddle of water. Thomas then suggested that they throw
Jackson over the fence into a canal. Harmon instructed
McCune to go get a knife, and Patterson told him to go
get the knife he had left at Patterson’s house earlier.
McCune drove away and did not return to the scene of
the murder. Police found Jackson’s body later that
morning.

At approximately 4 o’clock that afternoon, Evanston
police arrested McCune pursuant to a warrant for bat-
tery and mob action in connection with the fight that
occurred near the 1623 Club. Patterson and Thomas were
also subjects of the same arrest warrant. While he was
in custody, McCune waived his Miranda rights and gave
a statement regarding the fight near the 1623 Club.
McCune was also questioned about the killing of Jack-
son and gave a statement implicating Patterson, Thomas,
Harmon and himself.

Patterson was arrested pursuant to the warrant at
about 7 p.m. that evening. He waived his Miranda rights
and gave a statement concerning the fight near the 1623
Club. Officer Michael Gresham then questioned Patterson
concerning the killing of Jackson. Patterson indicated
that he knew nothing about it. Police arrested Thomas
at about 11 p.m. that night pursuant to the warrant on
which they had arrested McCune and Patterson.

The next day, Assistant State’s Attorney Robert Fried-
man interviewed Thomas. He informed Thomas that
he was assisting the police in the investigation of the
homicide of Jackson and was not there to represent him.
After Friedman advised him of his Miranda rights,
Thomas stated he wished to give a statement. Thomas
indicated that the police had treated him fairly while
he was in custody. Friedman told Thomas that a wit-
ness, Nancy Adams, told police that she had seen him
and three other people beating someone on the street in

39

Evanston. He also told Thomas that McCune had given
the police a statement placing both himself and Thomas
at the canal where police found Jackson’s body and de-
scribing what had happened there. Friedman then told
Thomas that, according to McCune’s statement, Thomas
remained with the victim at the scene when he left the
area. Thomas responded that that was true. When
Friedman asked whether McCune had left the area him-
self, however, Thomas indicated that he did not wish to
answer any further questions and requested counsel.
Friedman immediately terminated the interview and pro-
ceeded to leave the room. As he approached the door,
however, Thomas said: “You know the police took my
shoes and prints, but they won’t find anything because
I wasn’t where the body was found.” Later that day,
McCune gave Friedman a statement which, again, impli-
eated the defendants, Harmon and himself. That eve-
ning, police advised Patterson that he had been impli-
cated in a murder and that “charges were either ap-
proved or {that the police were| seeking charges at
that time.”

On August 23, a Cook County grand jury indicted the
defendants and McCune for Jackson’s murder. Officer
Gresham removed Patterson from the lockup to process
and transfer him to Cook County jail. When Gresham
told Patterson that he had been indicted, Patterson asked
how many people had been indicted. Gresham informed
Patterson that Thomas and McCune had also been in-
dicted. Patterson then asked why Harmon had not been
indicted and told Gresham that “Harmon did every-
thing.” Patterson also told Gresham that Harmon said
he had told a neighbor that he had killed somebody. At
that point, Gresham stopped Patterson and gave him a
Miranda waiver form. Gresham read the warnings aloud
as Patterson read along with him. After Patterson
initialed each warning and signed the waiver, he de-
scribed how Jackson was attacked and pulled from his

40

car. He admitting having struck the victim several
times with his fist and with the victim’s shoe during
the initial beating that occurred near his house. He told
Gresham that McCune and Harmon put Jackson back
into his car. Jackson was then driven to the dead end
and dragged from his car. He further stated that, after
McCune left the dead end, Harmon beat Jackson about
the head and face with clay boulders and threw him into
a mud puddle.

Later that day, Assistant State’s Attorney George
Smith of the felony-review unit, also interviewed Patter-
son. Patterson verified that he had signed and initialed
the Miranda waiver form that Gresham had given him.
He indicated that he understood his rights. Smith again
advised Patterson of his Miranda rights and explained
that he was assisting the police in the investigation of a
murder and that he was not representing Patterson.
Patterson indicated that he understood. He said that he
had been treated well by the police, had been fed and
had rested. He also told Smith that he was making the
statement of his own free will and without having been
threatened or promised anything. Patterson then gave
Smith a detailed account of Jackson’s murder.

Before trial, Patterson moved to suppres his statements
and Thomas moved to sever his trial from Patterson’s.
The court denied both motions but later granted Thomas’
motion in limine, instructing the State to refrain from
using Thomas’ name when introducing Patterson’s state-
ments and to eliminate all references to Thomas’ being
in the viectim’s ear.

At trial, Officer Gresham testified regarding Patter-
son’s arrest. He further testified concerning the state-
ment that Patterson made after learning that he had
been indicted. Assistant State’s Atto ‘ney Smith also testi-
fied concerning Patterson’s statement. Smith’s testimony
essentially corroborated Gresham’s. In addition, Smith
testified that Patterson told him that Harmon instructed

41

McCune to go get a knife. Patterson recalled telling
Harmon and McCune that there was a knife at his house.
He told Smith that McCune then drove Jackson’s car
away from the scene. Smith also testified that Patterson
stated that he and Harmon then fled the scene together
and Thomas ran off in a different direction. Thomas ob-
jected to Smith’s testimony that Thomas was at the scene
and fled. The court sustained his objection and instructed

the jury to disregard the testimony insofar as it con-
cerned Thomas.

Patterson neither testified nor presented any evidence
at trial. Thomas, however, testified in his own defense.
He admitted that he punched Jackson in the jaw once
but denied participating in the beating that occurred
near his house, getting into the victim’s car and riding
to the dead end. He testified that he stood on the side-
walk in front of his house and watched Jackson’s car
drive toward the dead end and stop. Thomas also testi-
fied that he then walked to the area where Jackson’s car
was parked, but stopped approximately 25 feet from the
others. He testified that he saw Harmon “making down-
ward motions * * * with his hands,” but was unable
to determine whether Harmon had an object in his hands.
Finally, Thomas testified that he did not help, encourage
or even say anything while he stood there.

Defendant Patterson contends that neither the admoni-
tions required by Miranda under the fifth amendment nor
his knowledge of the fact that he had been indicted for
Jackson’s murder afforded him sufficient information to
knowingly and intelligently waive his sixth amendment
right to counsel. Patterson also contends that this in-
formation was insufficient to enable him to knowingly
and intelligently waive the right to counsel guaranteed
by our State constitution (Ill. Const. 1970, art I, sec.
8). Consequently, he maintains that his uncounseled post-
indictment statements to Officer Gresham and Assistant
State’s Attorney Smith were obtained in violation of both

42

his sixth amendment right to counsel and his right to
counsel guaranteed by our State constitution.

Patterson correctly observes that the sixth amendment
right to counsel and the right to have counsel present
during interrogation which is guaranteed by Miranda to
safeguard the accused’s fifth amendment privilege against
self-incrimination, are separate and distinct rights. ( Peo-
ple v. Martin (1984), 102 Ill. 2d 412, 419, cert. denied
(1984), 469 U.S. 935, 83 L. Ed. 2d 270, 105 S. Ct. 334).
Consequently, he contends that Miranda warnings, which
were fashioned to protect the accused’s fifth amendment
privilege, do not serve to create a sufficiently meaningful
comprehension of the sixth amendment right to counsel.
Absent such comprehension of all the facts necessary to
an understanding of the sixth amendment right to counsel,
he concludes that he could not have knowingly waived
that right. Patterson urges this court to hold that the
State must satisfy a higher burden to establish a know-
ing and intelligent waiver of the sixth amendment right
to counsel than is necessary to establish a waiver of the
right to counsel guaranteed by Miranda. This court re-
cently rejected this argument in People v. Owens (1984),
102 Ill. 2d 88, cert. denied (1984), 469 U.S. 963, 83 L.
Ed. 2d 297, 105 S. Ct. 361.

The defendant in Owens argued that a higher standard
of waiver applies to the waiver of the sixth amendment
right to counsel. This court first noted that the Supreme
Court has expressly reserved ruling on the question of
whether waivers of the sixth amendment right to counsel
must be judged by a higher standard than that which is
applicable to waivers of the right to counsel under Mi-
randa, (People v. Owens (1984), 102 Ill. 2d 88, 102).
The Supreme Court again reserved ruling on this question
last term. (See Michigan v. Jackson (1986), 475 U.S.

_, n.10, 89 L. Ed. 2d 631, 642 n.10, 106 S. Ct.

1404, 1411 n.10.) The lower courts that have addressed
this issue are not in agreement. See People v. Owens

43

(1984), 102 Ill. 2d 88, 102; see also 1 W. LaFave & J.
Israel, Criminal Procedure sec. 6.4(f), at 472 (1984).

In Owens, the defendant was advised of his Miranda
rights and signed a waiver of those rights prior to inter-
rogation. Nevertheless, he argued that he could not have
validly waived his sixth amendment right without knowl-
edge of the fact that a criminal complaint charging him
with murder had been filed. The court found that the
defendant knew he was being held for questioning in
connection with a murder. In concluding that the defend-

ant validly waived his sixth amendment right to counsel,
the court stated:

“(Hje was aware of the severity of the situation
facing him and, since he had been given his Miranda
warnings, he knew he had the right to have an attor-
ney present during questioning. Considering these
facts, together with defendant’s familiarity with the
Miranda warnings, we have no doubt of the ad-
missibility of the statements * * *.” People v. Owens
(1984), 102 Ill. 2d 88, 102-03.

Like the defendant in Owens, Patterson was aware of
the gravity of his situation. After he was arrested on
battery and mob-action charges, he was questioned con-
cerning a murder. The record establishes that Patterson
was informed of the fact that he had been indicted for
murder before he gave his statements to Officer Gresham
and Assistant State’s Attorney Smith. Smith explained
his role as an assistant State’s Attorney by informing
Patterson that he was not representing Patterson, but
was assisting the police in a murder investigation. Pat-
terson indicated that he understood.

We also believe that Patterson, like the defendant in
Owens, understeod his constitutional rights before he
gave his statements. The record reveals that when Pat-
terson began to talk to Officer Gresham, Gresham stopped
him and gave him a Miranda waiver form. Thus, before

44

he gave his statement to Gresham, Patterson was in-
formed that he had the right to remain silent and that
if he chose to forgo that right, anything he said could
and would be used against him in court. He was also
informed that he had a right to have an attorney present
during questioning. Before Assistant State’s Attorney
Smith interviewed Patterson, Patterson verified his sig-
nature and initials on the Miranda waiver form. Smith
then advised Patterson of his Miranda rights again. Pat-
terson indicated that he understood his rights and had no
questions regarding them. We therefore conclude that,
like the defendant in Owens, Patterson was aware of the
gravity of his situation and that he understood his consti-
tutional rights before he gave his statements to Officer
Gresham and Assistant State’s Attorney Smith. He there-
fore knowingly and intelligently waived his sixth amend-
ment right to counsel.

We next address Thomas’ argument that the trial
court erred in denying his motion for severance. A de-
fendant may request a severance if he believes that
joinder of his case with that of a codefendant will result
in prejudice. (Ill. Rev. Stat. 1985, ch. 38, par. 114-8.) In
People v. Bean (1985), 109 Ill. 2d 80, 92, this court
stated that “|a] defendant does not have an automatic
right in Illinois to be tried separately from his co-
defendants simply because they were a'l charged in the
same indictment for crimes arising from the same circum-
stances.” Rather, defendants who are jointly indicted are
to be jointly tried unless a separate trial is necessary to
avoid prejudice to one of the defendants. (People v.
Olinger (1986), 112 Ill. 2d 324, 345.) The decision
whether to grant a separate tris! is within the sound
discretion of the trial court and will not be reversed
absent an abuse of that discretion. People v. Lee (1981),
87 Ill. 2d 182, 186.

This court has recognized that prejudice may occur
where a codefendant makes extrajudicial hearsay admis-

45

sions that inculpate the defendant. (People v. Olinger
(1986), 112 Ill. 2d 324, 345; People v. Daugherty (1984),
162 Ill. 2d 533, 541.) The defendant may be denied his
sixth amendment right to confrontation if the codefend-
ant’s hearsay admission is admitted against him and the
codefendant does not testify. (People v. Daugherty
(1984), 102 Ill. 2d 533, 541.) “Because the defendant
cannot call the codefendant to the stand for cross-exami-
nation, either a separate trial should be ordered or the
admission should be redacted to eliminate any references
to the defendant.” (People v. Lee (1981), 87 Ill. 2d 182
187; see also Bruton v. United States (1968), 391 U.S.
123, 134 n.10, 20 L. Ed. 2d 476, 484 n.10, 88 S. Ct.
1620, 1626-27 n.10; People v. Clark (1959), 17 Ill. 2d
486, 490.) In Bruton, the Supreme Court held that the
confrci..ation clause is violated where there is a “sub-
stantial risk” that a jury, despite limiting instructions,
looked to a nontestifying codefendant’s extrajudicial state-
ments in assessing the defendant’s guilt. 391 U.S. 123,
126, 20 L. Ed. 2d 476, 479, 88 S. Ct. 1620, 1622.

Thomas maintains that he was prejudiced by the testi-
mony of Officer Gresham and Assistant State’s Attorney
Smith concerning Patterson’s statements. He argues that
Patterson’s statements, viewed in the context of the other
evidence in this case, implicated him by implying that he
was present at the scene of the murder. In support of his
motion for severance, Thomas argued that, contrary to
his own statement, Patterson’s statements would place
him in Jackson’s car and at the scene where his body
was found. Thomas’ counsel admitted that Patterson’s
statement did not, however, indicate that Thomas struck
Jackson while he was at the dead end. After reviewing
summaries of both defendants’ oral statements, the court
noted that Thomas, by his own statement, iniplicitly
placed himself at the scene when he told Assistant State’s
Attorney Friedman that McCune drove away from the
park alone. Therefore, the court denied the motion for

46

severance. As stated earlier, however, the court granted
Thomas’ motion in limine and instructed the State to
refrain from using Thomas’ name when introducing Pat-
terson’s statements and to eliminate all references to
Thomas’ being in the victim’s car.

Contrary to the court’s ruling, however, Assistant
“tate’s Attorney Smith testified that Patterson told him
that “Thomas ran off” from the scene of the murder. As
noted earlier, the court immediately sustained Thomas’
objection and instructed the jury to disregard the refer-
ence to Thomas. Smith’s testimony placed Thomas at the
murder scene, Nevertheless, we do not find that it preju-
diced Thomas. First, the State introduced testimony con-
cerning Thomas’ own statement in which he placed him-
self at the scene. Assistant State’s Attorney Friedman
testified concerning his interview of Thomas. He testified
that he confronted Thomas with McCune’s statement that
Thomas was at the canal with the victim when McCune
left the area. Friedman testified that Thomas responded
that that was true. Patterscon’s statements did not other-
wise implicate Thomas. In addition, the court instructed
the jury: “Mere presence or negative acquiescence is not
sufficient to make a person accountable for the acts of
another.”

Moreover, unlike the »rosecutor in Bruton, the State
presented other evidence of Thomas’ guilt. McCune testi-
fied that Thomas hit and kicked Jackson approximately
10 times during the initial attack near Thomas’ house.
Lequita Adams, an ex-girlfriend of Thomas’ who lived
across the street from him, testified that she saw him
throw the first punch at the driver of Jackson’s car.
Lequita Adams’ mother, Naney Adams, also identified
Thomas and testified that he participated in the beating
that occurred near his house. In addition, the State pre-
sented the testimony of Roger Shirk, a forensic scientist,
that footprints found in the mud near Jackson’s body
could have been made by the shoes taken from Thomas

47

shortly after he was arrested. Havi> - reviewed the rec-
ord, we find that Patterson’s statem nts, as testified to
by Officer Gresham and Assistant State’s Attorney
Smith, did not “add[{] substantial, perhaps even critical,
weight to the Government’s case” against Thomas. (Bru-
ton v. United States (1968), 391 U.S. 123, 127-28, 20 L.
Ed. 24 476, 480, 88 S. Ct. 1620, 1623.) We therefore
conclude that the trial court did not abuse its discretion
in denying Thomas’ motion for severance.

The State filed a motion to strike Patterson’s reply
brief insofar as it alleges that his trial counsel was in-
competent, or the alternative, for leave to file a re-
sponse thereio. The State was granted leave to file a re-
sponse, and the motion to strike was taken with the
case. In support of its motion to strike, the State argues
that Patterson first asserted that his trial counsel was
incompetent in his reply brief in the appellate court. The
appellate court did not address this issue.

As he did in the appellate court, Patterson first
raised the question of his trial counsel’s competence in
this court in his reply brief. Our Rule 341(e), which sets
forth detailed and comprehensive instructions concerning
the contents of the appellant’s brief, applies to criminal
as well as civil appeals. (103 Ill. 2d R. 341(e); 87 Ill. 2d
R. 612(i).) Rule 341(e) (7) expressly provides: “Points
not argued are waived and shall not be raised in the reply
brief.” (103 Ill. 2d R. 341(e)(7).) Similarly, this court
has held that an argument not raised in the initial brief
is deemed waived for purposes of review. Murdy v. Edgar
(1984), 103 Ill. 2d 384, 393.

Nonetheless, Patterson’s counsel seeks to circumvent
the rules and holdings of this court, contending that the
issue of counsel’s effectiveness is a proper matter for a
reply brief. He relies on People v. George (1986), 140 II.
App. 3d 1001, 1005, and People v. Maxwell (1980), 89
Ill. App. 3d 1101, 1104, as authority for his position. Our

48

Rule 341(g), however, clearly and specifically states:
“The reply brief, if any, shall be confined strictly to reply-
ing to arguments presented in the brief of the appel-
lee.” (103 Ill. 2d R. 341(g).) Patterson’s counsel’s at-
tempt to advance for the first time in this court the new
issue of trial counsel’s competence in the guise of a re-
sponse to the State’s waiver argument is in direct viola-
tion of this court’s Rules 341(e)(7) and 341l(g). We
strongly disapprove of counsel’s deliberate disregard for
and attempt to circumvent this court’s rules.

For the foregoing reasons, the State’s motion to strike
portions of Patterson’s reply brief, which was taken with
the case, is allowed; in cause No. 63144, the judgment
of the appellate court is affirmed; and in cause No. 63149,
the judgment of the appellate court is affirmed.

Motion allowed;
judgments affirmed.

JUSTICE GOLDENHERSH took no part in the con-
sideration or decision of this case.

49
SUPREME COURT OF THE UNITED STATES

No. 86-7059

TYRONE PATTERSON,
Petitioner
Vv.

ILLINOIS

ON PETITION FOR WRIT OF CERTIORARI TO THE
SUPREME COURT OF THE STATE OF ILLINOIS

ON CONSIDERATION of the motion for leave to proceed
herein in forma pauperis and of the petition for writ of
certiorari, it is ordered by this Court that the motion
to proceed in forma pauperis be, and the same is hereby,
granted; and that the petition for writ of certiorari be,
and the same is hereby, granted.

October 13, 1987

PETITIONER’S
BRIEF

;
No. 86-7059 ig 7 |
IN THE a )

Supreme Court of the Anited States

OcTOBER TERM, 1987

TYRONE PATTERSON,
Petitioner
v.

ILLINOIS,
Respondent

On Writ Of Certiorari To The Supreme Court Of Illinois

BRIEF FOR PETITIONER

Pau. P. BieEBEL, JR.
Public Defender of Cook County

DoNALD 8S. HONCHELL*
RoBert P. ISAACSON
Assistant Public Defenders
403 Richard J. Daley Center
Chicago, Illinois 60602

(312) 443-6350

Counsel for Petitioner

*Counsel of Record

A TS
PRESS OF RAM PRINTING, HYATTSVILLE, MD 20781 = (301) 864-6662

Are mere admonishments under Miranda v. Arizona
sufficient to assure that an indicted defendant knowingly
and intelligently waives his sixth amendment right to the

assistance of counsel at interrogations following that
indictment?

i
LIST OF PARTIES TO THE PROCEEDINGS
IN THE SUPREME COURT OF ILLINOIS

The following parties appeared in the proceedings in
the Supreme Court of Illinois involving petitioner Patter-
son:

1. Petitioner Tyrone Patterson
2. Codefendant David Thomas
3. Respondent State of Illinois

ill

TABLE OF CONTENTS

Page

i ccc cc cc cecccccccccs iv
Ne ccc eneccvccccccce l
Ne cs cer cc ccccccccce l
CONSTITUTIONAL PROVISIONS INVOLVED ..........-- l
STATEMENT OF THE CASE ............---5-: gieccees 2
i

SuMMARY OF ARGUMENT. ...........-..scccceceeees

ARGUMENT:
As THE StxtH AMENDMENT RIGHT To COUNSEL
Wuicu ATTACHES Upon INDICTMENT Is CoNnsTI-
TUTIONALLY DESIGNED For GREATER PURPOSES
THAN THE JuUDICIALLY CREATED FIFTH AMEND-
MENT RIGHT To CouNSEL, IT May VALIDLY BE
SURRENDERED ONLY Upon A SHOWING OF A
KNowING AND INTELLIGENT WAIVER, WHICH Is
Not SECURED THROUGH ADMONISHMENTS
REQUIRED By MIRANDA V. ARIZONA .........--. ll

Teen ee od ccc ec cc cccccccecs 31

iv

TABLE OF AUTHORITIES

Cases Page
Brewer v. Williams, 430 U.S. 387 (1977)... 14, 15, 22, 24, 30
Brookhart v. Janis, 384 U.S. 1 (1966). ................ 25
Carnley v. Cochran, 369 U.S. 506 (1962)......... 22, 25, 30
Doyle v. Ohio, 426 U.S. 610 (1976) ................... 22
Edwards v. Arizona, 451 U.S. 477 (1981). ........... 23, 30
Escobedo v. Illinois, 378 U.S. 478 (1964). ............. 20
Estelle v. Smith, 451 U.S. 454 (1981)............... 14, 25
Fare v. Michael C., 442 U.S. (07 (1979). ............ 18, 31
Faretta v. California, 422 U.S. 806 (1975)............. 25
Johnson v. Zerbst, 304 U.S. 458 (1938). ............. 18, 24
Kirby v. Illinois, 406 U.S. 682 (1972)............ 14, 16, 22
Maine v. Moulton, 474 U.S. —___, 88 L.Ed.2d 481

Si Tcee> cuvueedtncceueens 13, 15, 17, 18, 20, 26, 30
Massiah v. United States, 377 U.S. 201 (1964)....... 15, 26
McLeod v. Ohio, 381 U.S. 356 (1965) ................. 15
Michigan v. Jackson, 475 U.S. ——, 89 L.Ed.2d 631

Pits 6icdhweieedendeandnieae 19, 20, 21, 25-26, 30
Michigan v. Tucker, 417 U.S. 483 (1974) .............. 22
Moran v. Burbine, 475 U.S. —__, 89 L.Ed.2d 410

DE Kubieetedesonanendsaaen 17, 18, 19, 22, 25
New York v. Quarles, 467 U.S. 649 (1984). ............ 22
Oregon v. Elstad, 470 U.S. 298 (1985) ................ 22
Rhode Island v. Innis, 446 U.S. 291 (1980)............ 21
Schneckloth v. Bustamonte, 412 U.S. 218 (1973)....... 24
Smith v. Illinois, 469 U.S. 91 (1984) ................. 30
Spano v. New York, 360 U.S. 315 (1959) ..... 2.2.06... 15
United States v. Ash, 413 U.S. 300, 1973)........... 13, 17

United States v. Brown, 699 F.2d 585 (2nd Cir. 1983) 19, 29, 31
United States v. Callabrass, 458 F.Supp. 964 (D.C.N.Y.

DG. 666 06esndacececulGadeeets aaa 28, 31
United States v. Gouveia, 467 U.S. 180 (1984).... 14, 17, 22
United States v. Henry, 447 U.S. 264 (1980)......... 15, 26

United States v. Miller, 432 F.Supp. 382 (E.D.N.Y. 1977)
aff'd United States v. Fernandez, 573 F.2d 1297 (2nd
Sk WD nc ov knsadevanckecavel ootedaeeees 28
United States v. Mohabir, 624 F.2d 1140 (2nd Cir. 1980). 19, 28
United States v. Satterfield, 417 F.Supp. 293 (S.D.N-Y.
1976) aff'd 558 F.2d 655 (2nd Cir. 1976), Se eas 19, 28

Vv

Table of Authorities Continued

Page

United States v. Wade, 388 U.S. 218 (1967)....... 13, 18, 30
United States ex rei Johnson v. Lane, 573 F.Supp. 967

ack ieee ennuecnanceed seine s 19-20, 29

Von Moltke v. Gillies, 332 U.S. 708 (1948) ............ 25
Parker, sed Requirements for Waivers of the Sixth
A ment Right to Counsel, 82 Col.L.Rev. 363

GE hae aenucs be6binedee dauee xenseunees 27, 30, 31

Wasserman, Sixth Amendment Right to Counsel: Stan-
dards for Knowing and Intelligent Pretrial Waivers,
60 B.U.L. Rev. 738 (1980). ...........cceeees 26, 29, 31

OPINIONS BELOW

The decision of the Illinois Appellate Court, First Dis-
trict, in this cause is reported as People v. Patterson, 140
Ill. App.3d 421, 488 N.E.2d 1283 (1986) and is set forth in
the Joint Appendix at pages 26-35. The decision of the
Illinois Supreme Court in this case is reported as People v.
David Thomas, 116 [1l.2d 290, 507 N.E.2d 843 (1987) and
is included in the Joint Appendix at pages 36-48.

JURISDICTION OF THE COURT

The jurisdiction of this Court is based on 28 U.S.C.
section 1257(3). The opinion of the Illinois Appeliate
Court was issued January 21, 1986 and leave to appeal was
filed with the Supreme Court of Illinois on February 25,
1986. On June 3, 1986, the Illinois Supreme Court
accepted the cause for review and consolidated it with his
codefendant’s appeal. On April 16, 1987, the Illinois
Supreme Court delivered its decision and the petition for
writ of certiorari was filed with this Court on June 12,
1987. This Court granted the petition by its ruling of
October 13, 1987.

CONSTITUTIONAL PROVISIONS INVOLVED
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
committed, which district shall have been previously
ascertained by law, and to be informed of the nature and
cause of the accusation; to be confronted with the wit-
nesses against him; to have compulsory process for
obtaining witnesses in his favor, and to have the Assist-
ance of Counsel for his defence.

2

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 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 pro-
tection of the laws.

STATEMENT OF THE CASE

On August 21, 1983, the body of James Kevin Jackson
was found in a puddle of water in an area of Evanston,
Illinois near a sanitary district canal. (R. 421-2) Police
investigation led to Tyrone Patterson (R. 716, 719-20) and
he was arrested. (R. 720)

According to testimony at the pre-trial hearing on peti-
tioner’s motion to suppress his statements, Investigator
Michael Gresham arrested Juan McCune and questioned
him about the homicide. (R. 4-6) McCune implicated Pat-
terson (R. 5-6) and Gresham arrested him on August 21,
1983. (J.A. 5, R. 6-7) Patterson was taken to the Evanston
police station (R. 8-9) where he was interviewed by
Gresham. (R. 10-11) When Gresham asked Patterson if he
knew anything about the murder, Patterson made no
statement about it (R. 12) except to say he knew nothing
of it. (R. 33) Patterson was later placed in the facility
lockup (R. 13), held on an arrest warrant for an unrelated
offense. (R. 6-7, 38) Meanwhile, Gresham continued his
investigation. (R. 16)

On August 22nd, Gresham returned to the police sta-
tion and pursued the investigation. (R. 17) For the first

3

time, he contacted the Office of the Cook County State's
Attorney. (R. 16, 17) Two assistants arrived at the station
and conferred with Gresham. (R. 17-18) At that time,
felony charges on the Jackson homicide were approved.
(R. 18) Later that day, Patterson was brought from his cell
to be told of the charges and to visit his family. (R. 18) He
was thereafter returned to the lockup. (R. 19)

The following morning, August 23, 1983, Gresham pro-
ceeded to the criminal courthouse where he testified
before the grand jury. (J.A. 5-6) The grand jury returned
a true bill against Patterson and two others. (J.A. 6)
Gresham then returned to the police s‘: tion and, with his
partner, met with petitioner Patterson. (J.A. 6)

At that time, Patterson was informed he had been
indicted by the grand jury for murder and armed vio-
lence. In response, Patterson asked how many people had
been indicted. Gresham told him 3 had been charged:
himself (meaning Patterson), McCune and David Thomas.
(J.A. 6; R. 54) To that, Patterson asked why Carl Harmon
had not been indicted since Harmon had done everything
and had made a statement to a girl named Dorisa that he
(Harmon) had killed someone. (J.A. 6, 8; R. 53, 54, 55) At
that point, Gresham told Patterson there had been no
indictment returned for Harmon at that time. (R. 58) He
stopped Patterson from continuing and “readvised him of
his Miranda’.” (J.A. 7; R. 58-60) He also gave Patterson a
waiver to be signed. (R. 60)

In doing so, Gresham read the Miranda waiver aloud as
Patterson read it as well. Patterson read each sentence of
the warnings and, having done so, initialed each part. At
the conclusion, he signed the form, as did Gresham and
Gresham's partner. After Patterson signed the rights
statement, Gresham told him to continue speaking and
they conversed for 30 or 40 minutes. (J.A. 8)

4

Afterwards, Gresham contacted the felony review divi-
sion of the State’s Attorney’s Office and assistant George
Smith later arrived. (R. 23) Gresham told him about the
case and Smith and Patterson then spoke. Gresham did
not ask Patterson any additional questions. (R. 24).

According to Smith, Gresham brought Patterson to the
interview room and left. (R. 73) Smith and Patterson were
alone in the room. (J.A. 9) At that time, Smith was aware
that Patterson had been formaliy charged by grand jury
indictment. (R. 80-1)

Smith recalled he showed Patterson a form for waiving
constitutional rights which contained Patterson's sig-
nature and initials. Upon being asked, Patterson
expressed recognition of them and Smith asked him if he
understood the document. Patterson replied that he did.
Smith inquired if Patterson had any questions about it and
Patterson responded he did not. Smith then read to Pat-
terson the entire document and asked him again if he
understood the rights. Patterson again said he did. Smith
once more asked if Patterson had any questions and Pat-
terson once more said that he did not. (J.A. 10) Smith
explained his role and function to Patterson, which Pat-
terson understood, and asked if Patterson wished to make
a statement. Patterson answered he did and wanted to
talk to tell the truth. (J.A. 11) So, Smith commenced a
conversation with Patterson. (R. 77)

Over Patterson’s testimony on the conditions under
which he was confined (R. 122-8, 135-6) and his failure to
be advised of his rights (R. 130, 131-2) so that he was
forced to provide the statements (R. 137-9), the trial
judge denied Patterson's motion to suppress his state-
ments and ruled them admissible. (R. 168-9)

At Patterson's trial, both Gresham and Smith testified
to the details of Patterson's remarks to them. (J.A. 14-15.

5

16-24) Other evidence was presented as well concerning
the crime and the police investigation.

Testifying in exchange for a deal to avoid a murder
charge (R. 527, 580, 607-8, 609-10, 613), Juan McCune
related his knowledge of the crime. He explained he was
testifying to the truth, which matched what he had earlier
told police (R. 518, 559-61, 566-7, 568, 593, 598, 616), but
admitted he had signed a motion to suppress his state-
ments. According to the motion, McCune had made those
statements from fear of torture and physical abuse (R.
600-1), he did not knowingly make statements since he
was sleepy and under the influence of alcohol and drugs
(R. 601-2), and the disclosures were not true in any man-
ner. (R. 604) He discounted the motion as a way to get his
statements suppressed (R. 617-18) but nevertheless
agreed he lied under oath “because it well suited” his
interests. (R. 620)

In his testimony, McCune explained he was at the home
of David Thomas with petitioner Patterson and Carl Har-
mon. (R. 505-7) There, they saw James Kevin Jackson (the
victim) drive by. McCune heard Harmon tell the others to
spread out as he did not know who it was. (R. 509)
McCune related Jackson backed up and Harmon called
out to him, running to the car where he opened the door,
turned off the engine, and pulled out the key. Harmon
began hitting Jackson, whereupon McCune and Thomas
ran to the car and started hitting him as well. McCune
described Patterson as in the back seat hitting him too.
(R. 509-10) Harmon pulled Jackson from the car and
kicked him and hit him while Patterson struck Jackson
with a shoe 2 or 3 times and Thomas kicked and hit him.

(R. 511-12)

State witnesses Nancy and Lequita Adams testified to
their observations of the beating. (R. 625-30, 655-67)

6

Each was familiar with Patterson from the neighborhood
but neither saw Patterson involved in the scuffle. (R.
645-6, 672-3)

According to McCune, Jackson and the others got in the
ear and left, with McCune driving. (R. 512-13, 544-5)
They proceed towards the canal until McCune stopped the
car and, as instructed, turned out the lights. (R. 513)
They all got out, with Patterson and Harmon pushing
Jackson through the passenger side door. Harmon then
grabbed Jackson and dragged him to the water. (R. 513)
There, Harmon screamed at Jackson (R. 513, 515-16) and
Thomas said to throw him in the water. Patterson told
McCune to get a knife and McCune drove off. (R. 516)
After doing so, he did not return. (R. 516-17)

After the victim’s body was discovered (R. 421-2),
police located footprints around the pool. (R. 422) Those
impressions were photographed and measured (R. 423-4)
and were compared to shoes taken from Patterson. (R.
877-83) It was determined Patterson's shoes could not
have caused any of the shoeprints. (R. 883, 897) When the
victim’s car was spotted (R. 687), it was processed for
fingerprints. (R. 697, 699, 709, 710, 711, 713) After com-
parison, none of the discovered fingerprints were matched
to Patterson. (R. 898-900)

Following the State’s evidence, Patterson rested with-
out presenting any proof. (R. 1017) The jury thereafter
convicted Patterson of murder (R. 1158) and he was sub-
sequently sentenced to a term of 24 years in prison. (R.
1196)

On appeal to the Illinois Appellate Court, Patterson's
conviction was affirmed over his contention his state-
ments were inadmissible since the State, through mere
reliance on Miranda warnings, did not establish a know-

7

ing and intelligent surrender of the sixth amendment
right to counsel applicable to the interrogation after his
indictment. (J.A. 28-30)

In the Illinois Supreme Court, Patterson again argued
he could not have knowingly and intelligently waived his
right to sixth amendment counsel at questioning follow-
ing indictment by merely receiving admonishments con-
forming to Miranda v. Arizona and, so, his statements
were not admissible at trial. Again, the reviewing court
disagreed and held the disclosures were properly
received. (J.A. 41-44) Consequently, the Illinois Supreme
Court, too, upheld the conviction rather than ordering
retrial without State use of post-indictment statements.

SUMMARY OF THE ARGUMENT

The constitutional right to counsel under the sixth
amendment to the United States Constitution, applicable
to the States through the due process clause of the four-
teenth amendment, comes to life whenever the pros-
ecutorial forces initiate adversary criminal proceedings.
Such a process commences, as in Patterson's case, with
the return of a grand jury indictment. Unlike its position
prior to the indictment, when criminal prosecution is a
mere potentiality, the State becomes committed, by the
charges, to prosecuting the accused. By the government's
own choice, the indictment solidifies the adverse positions
of the State and defendant and, thereby, necessarily
involves the accused in the legal system. That was what
happened to petitioner here.

Having been indicted and, thus, facing the clear pos-
sibility of criminal conviction and penal incarceration,
Patterson confronted the organized prosecutorial forces
of society and the intricacies of the criminal justice system
in his interviews with authorities. At the critical stages of

8

the proceedings following the indictment, this Court has
wisely extended to citizens like him the constitutional
right to counsel.

As this Court has sensibly recognized, as much as at
trial itself, charged citizens need the assistance of counsel
at certain settings after their indictment. For, in effect,
events at those stages could seal the defendant's fate and
make the trial itself, despite the need for effective counsel
therein, a mere formality. Occurrences prior to trial could
further undermine all the trial protections established in
the constitution. It does little good to assure the highest
caliber of assistance of counsel at trial if, through the
unwitting absence of counsel at a significant post-indict-
ment event, the trial becomes a fore-ordained sham.
Therefore, to meaningfully protect the defendant's consti-
tutional righi to counsel at trial, and to thereby enable
counsel to protect defendant's critical trial rights, it is
essential the defendant's pre-trial sixth amendment right
to counsel be preserved. Given the ramifications from a
loss of counsel's assistance at critical post-indictment con-
frontations such as interrogations, this Court must assure
that that right to counsel is not easily surrendered.

The standard held applicable by this Court to the valid
waiver of such critical rights as the constitutional right to
counsel has been a “knowing and intelligent” surrender. If
the accused is fully aware of the right to be lost and
chooses with complete knowledge of the facts to forego
reliance on it, he must suffer the consequences, be it
conviction and jail. To the same extent, however, that he
be held accountable for the intelligent surrender of a
known right, he cannot be penalized for unwittingly waiv-
ing a protection about which he was not fully aware. A
system which permits and, indeed, rewards the sur-
render of a critical but unknown right deserves no en-

9

dorsement by this Court. Yet this is the scheme which
operated in Patterson's case.

The constitutional right to counsel has been extended
without fail by this Court to post-indictment questioning
sessions. Clearly, such interrogations by authorities are
as equally perilous to the accused as the upcoming trial
itself and, therefore, the need for counsel is equally as
great. Certainly, the governmental interrogation follow-
ing indictment by an entity committed to prosecute is an
occurrence where results will easily transform a criminal
trial into a shallow charade. The right under the constitu-
tion to counsel at such confrontations with the prosecu-
tion, therefore, cannot lightly be lost. While, indeed, this
significant sixth amendment right can be surrendered, it
becomes too easily cast away, without the required full
awareness of its nature, if the accused is merely informed,
as here, of his fifth amendment right to counsel through
admonishments conforming to Miranda v. Arizona.

This Court created the set of advice, including refer-
ence to the right to counsel, in the Miranda case specifi-
cally to protect the fifth amendment privilege against
self-incrimination. That allusion to counsel, therefore, has
the limited function (as intended by this Court) of inform-
ing an arrested citizen of counsel in the narrow context of
this fifth amendment right. The holding in Miranda
requiring advice on counsel applies only to custodial inter-
rogations prior to indictment and, as such, was not
intended to alert the accused to this sixth amendment
right to counsel after the filing of criminal charges. The
advice in Miranda simply does not adequately describe to
indicted citizens their right to counsel automatically
attaching by virtue of the initiation of adversary proceed-
ings.

10

In Miranda, this Court judicially created both the fifth
amendment right to counsel and the simple method of
waiving it. By contrast, the right to counsel under the
sixth amendment is contained within the constitutional
provision itself. It therefore stands as a higher, perma-
nent right to counsel, subject to removal only through an
amendment to the constitution itself. The judicially con-
ceived fifth amendment right to counsel drafted in
Miranda, by comparison, may be wholly discarded
through majority rule of 5 members of this Cou

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_0994%3A0. Public record. Not legal advice.