Petitioners Brief — Lee v. Illinois

upreme Court, U.S.

FILED

AUC 15 1985

No. 84-6807 JOSEPH F. SPANIOL, UR.

IN THE

Supreme Court of the Gnited States

OCTOBER TERM, 1985

MILLIE R. LEE,

Petitioner.

V.

THE STATE OF ILLINOIS.

Respondent.

On Writ Of Certiorari

To The Appellate Court of Illinois

Fifth Judicial District

BRIEF FOR PETITIONER

DAN W. EVERS

Assistant Defender

RANDY E. BLUE*

Deputy Defender

Office of the State

Appellate Defender

Fifth Judicial District

Route 15 East

P.O. Box 2430

Mt. Vernon, Illinois 62864

(618) 244-3466

Counsel for Petitioner

*Counsel of Record

SR ER RN ER RS A NTS RRR NAA RR Ne A

PRESS OF RAM PRINTING, HYATTSVILLE, MP 20781 = (301) 864-6662

QUESTION PRESENTED FOR REVIEW

Whether the petitioner's sixth and fourteenth amend-

ment right to confront the witnesses against her was

violated by the trial court’s consideration of the

inculpatory confession of her nontestifying co-defendant

as substantive evidence of her guilt?

ll

TABLE OF CONTENTS

Page

OPINIONS AND JUDGMENTS BELOw.................. l

STATEMENT OF JURISDICTIONAL GROUNDS........... l

CONSTITUTIONAL PROVISIONS INVOLVED ............ l

STATEMENT OF THE CASE ............cccccccccccces 2

SUMMARY OF ARGUMENT. ...............-.ecccceees 6

ARGUMENT: THE PETITIONER’S S1xtTH AND Four-

TEENTH AMENDMENT RiGHT To CONFRONT THE

WITNESSES AGAINST HER Was VIOLATED By THE

TRIAL Court’s CONSIDERATION OF THE NONTEST-

IFYING CO-DEFENDANT’S CONFESSION As SuB-

STANTIVE EVIDENCE IN DETERMINING PETITION-

9 CN RS a Ra ae ae 7

I a a 19

iil

TABLE OF AUTHORITIES

CONSTITUTIONAL PROVISIONS: Page

ee rr re en. ce eeubevecwees 7, 8, 13, 14, 18

re rr er ee ec pe ceoneeseneeeeut 7,13

STATUTES:

Bs "me. Be ©)! Reese 10

Il. Rev. Stat.. 1963, Ch. 38, $ 5-20)... 2. ce icc ceca’ 4

CASES:

Anderson v. United States, 417 U.S. 211 (1974). ....... 8

Berger v. California, 393 U.S. 314 (1969) ............. 7

Blumenthal v. United States, 332 U.S. 5389 (1947). ..... <

Bruten v. United States, 391 U.S. 123

[60 eeeecdedeteeenceeen 10, 11, 12, 13, 15, 17, 18

California v. Green, 399 U.S. 149 (1970). ............. 18

Chambers v. Mississippi, 410 U.S. 284 (1973) ......... 7

Chapman v. California, 386 U.S. 18 (1967). ......... 16, 17

Cockrell v. Oberhauser, 413 F.2d 256 (9th Cir. 1969).... 11

Davis v. Alaska, 415 U.S. 308 (1974) .........+..-445. &

Delli Paoli v. United States, 352 U.S. 232 (1957)..... 11, 12

Douglas v. Alabama, 380 U.S. 415 (1965). ............ 8

Dutton v. Evans, 400 U.S. 74 (1970) ..........---455- 18

Fahy v. Connecticut, 375 U.S. 85 (1963). ...........-45- 17

Linkletter v. Walker, 381 U.S. 618 (1965). ............. 10

Parker v. Randolph, 442 U.S. 62 (1979)....... ... 18, 14, 16

People v. Bassett, 56 Ill. 2d 285, 307 N.E.2d 359

DC tc cnc lersescatandeeabeeendenekad ws 12, 13

People v. Malcom, 14 Ill. App. 3d 378, 302 N.E.2d 352 (1st

Be, Moos desaceseeecnteasess ~(ieihiineneee 4 )

People v. McNeal, 56 Ill. App. 3d 132, 371 N.E.2d 926 (1st

TE REST Teeter eT rrr Crt T eT 1]

People v. Pettis, 104 Ill. App. 3d 275, 482 N.E.2d 935 (1st

Se, SE, cb lng kbedsenesdencesceuetadectesss 11

People v. Reichert, 352 Ill. 358, 185 N.E.585 (1933) .... 14

People v. Rosochacki, 41 Ill. 2d 483, 244 N.E.2d 136

iv

Table of Authorities Continued

Page

People v. Simpson, 39 Ill. App. 3d 318, 349 N.E.2d 441

Sy PMotcsanvdconkeeshucusneceexeenses : a

People v. Tyner, 30 ill. 2d 101, 195 N.E.2d 675 (1964)... 11

Pointer v. Texas, 380 U.S. 400 (1965)................. 7

Roberts v. Russell, 392 U.S. 293 (1968) ............... 10

United States v. Longee, 603 F.2d 1342 (9th Cir.

sane n4anGs Ow ennde<ebdetcenaxeeas 11, 14, 15

MISCELLANEOUS:

5 J. Wigmore, Evidence § 1395, p. 123 (3d ed. 1940) .... 8

, § 8), 8 os) 5 eee 12

OPINIONS AND JUDGMENTS BELOW

People v. Lee, No. 61304 (Ill. S.Ct. Order denying leave

to appeal April 2, 1985).

People v. Lee, No. 5-82-539 (Ill. App. Ct. 5th Dist.

December 7, 1984).

JURISDICTION OF THE

SUPREME COURT OF THE UNITED STATES

Petitioner invoked the jurisdiction of This Honorable

Court under the provisions of 28 U.S.C. § 1257(3) and

sought a writ of certiorari based on a “right . . . claimed

under the Constitution.” Her petition for the writ was

filed within sixty days of the I[liinois Supreme Courts

Order which denied her timely petition for leave to appeal

the judgment of the Appellate Court of Illinois, Fifth

Judicial District, as mandated by Rule 20.1 of This Honor-

able Court.

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

ave 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 con-

fronted with the witnesses against him; to have com-

pulsory process for obtaining witnesses in his favor,

and to have the Assistance of Counsel for his defence.

U.S. Const. amend. VI.

* 1*K *

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

2

person of life, liberty, or property, without due pro-

cess of law; nor deny to any person within its jurisdic-

tion the equal protection of the laws.

U.S. Const. amend. XIV, § 1.

STATEMENT OF THE CASE

On April 16, 1982, a bill of indictment was returned by

the grand jury of St. Clair County, Illinois, charging the

petitioner Millie Lee and Edwin Thomas with the mur-

ders of Mattie Darden and Odessa Harris. (J.A. 2, 3)

Petitioner and Edwin Thomas were jointly tried before

the bench, without a jury, in the St. Clair County Circuit

Court on July 7-8, 1982.

On February 13, 1982, a fireman who had responded to

the report of a fire, discovered a bod the closet of

apartment 35B of the Roosevelt Homes iff East St. Louis,

Illinois. He also discovered a can of charcoal lighter fluid

on the floor by the closet. (R.13-16) The body had been

burned and had a number of stab wounds. (R.19-21) A

purse containing the identification of Odessa Donahue

was found by the police approximately one hundred feet

south of apartment 35B. (R.26,140,166) Police began a

search to locate Odessa Donahue. (R.166-67) Their inves-

tigation led them to the petitioner’s apartment, apart-

ment 33B in the Roosevelt Homes. (R.167-70)

On February 15, 1982, several East St. Louis detec-

tives went to the petitioner’s apartment. (R.100,170)

They were invited into the apartment and noticed that

furniture had been moved around, walls had been painted,

and a mop and bucket were visible. (R. 102,173) The peti-

tioner informed the police that she did not know the

whereabouts of Odessa Donahue, also known as Odessa

Harris. (R.102,172) The petitioner stated that the apart-

ment was Mattie Darden’s, her aunt, who was out of tuwn

3

visiting relatives. Petitioner also stated that she was

related to Odessa (Donahue) Harris. (R.103,172) The

petitioner agreed to go to the East St. Louis Police

Department in order to determine whether she could

identify the body discovered in the closet. (R.103,174)

At the East St. Louis Police Department the petitioner

was shown several photographs of the body. A detective

observed that the petitioner was crying while she was

viewing the photographs of the body. He advised peti-

tioner of her rights under Miranda. (R.104,175) The peti-

tioner thereafter gave a number of conflicting accounts

concerning the whereabouts of Odessa Harris and Mattie

Darden. (R.108,178) The petitioner eventually admitted

that the body in the closet was that of Mattie Darden and

that Odessa Harris was also dead. She admitted that she

was involved in the death of Mattie Darden, that Edwin

Thomas also was involved, and that Edwin Thomas had

killed Odessa Harris. (R.109,179) The police placed the

petitioner under arrest, read the petitioner her Miranda

rights again, and obtained two written statements from

her. (R.179-80)

Petitioner's statements related that on Thursday, Feb-

ruary 11, 1982, she was with her boyfriend Edwin

Thomas at the apartment which she shared with Mattie

Darden. Mattie Darden returned to the apartment with

Odessa Harris. At one point the petitioner was in the

kitchen arguing with Odessa Harris. Mattie Darden was

in her bedroom. As Odessa Harris left the kitchen and

went into the living room, Edwin Thomas stabbed Odessa

Harris. Odessa Harris called for help. The petitioner ran

into Mattie Darden’s bedroom. Mattie Darden was in the

bedroom with a knife and swung the knife at the peti-

tioner. The petitioner ran back into the kitchen, got a

knife, and went into the bedroom where she stabbed

arenes iiaimataaaiemaalataiis

4

Mattie Darden a number of times. The petitioner

obtained an iron skillet, and both she and Edwin Thomas

struck Mattie Darden with it. They then put Odessa Har-

ris’ body ina trunk and put the trunk in an alley behind the

apartment. They carried Mattie Darden’s body wrapped

in a couple of blankets to apartment 35B and placed it in

the living room closet.

The petitioner purchased a can of charcoal lighter fluid.

Approximately midnight, Edwin Thomas poured lighter

fluid on the body of Odessa Harris and set it on fire. On

Saturday, February 13, 1982, Edwin Thomas went back

to apartment 35B and set on fire the body of Mattie

Darden. (J.A. 4-15)

Edwin Thomas was arrested, and he also gave a written

statement. (R.113-15,135) However, Mr. Thomas state-

ment related that the petitioner and he had discussed on

prior occasions killing Mattie Darden due to severe per-

sonality conflicts between the petitioner, Edwin Thomas,

and Mattie Darden. Mr. Thomas’ statement also detailed

that he and petitioner discussed killing Mattie Darden the

evening of February 11, 1982, but that they wanted

Odessa Harris to leave. Odessa Harris did not leave and

they were forced to kill her also. Mr. Thomas related that

he had the petitioner lure Odessa Harris into the kitchen,

and he attacked Odessa Harris with a knife. He stabbed

her a number of times on the floor of the kitchen, even-

tually killing her. The petitioner then went into Mattie

Darden’s bedroom and stabbed Ms. Darden. They then

disposed of the bodies as the petitioner had described in

her statement. (J.A. 16-24)

The police recovered some charred human bones from

the trash can behind the apartment. (R.78-82,181) Dr.

William A. Murphy, a specialist in radiology, testified that

he was able to determine that the bone fragments were

0

those of Odessa (Donahue) Harris. (R. 153-57) An autopsy

determined that Mattie Darden died due to multiple stab

wounds to the chest and blunt trauma to the head. (R.77)

Petitioner put forth as her defense that she did not have

any prior knowledge that Mr. Thomas was going to kill

Odessa Harris, nor did she participate in any way in the

killing of Ms. Harris. Consequently, she argued she was

not guilty of Ms. Harris’ murder. She also argued that she

could only be found guilty of the lesser offense of volun-

tary manslaughter in relation to the death of Mattie

Darden, based upon either her unreasonable belief that

her act of stabbing Mattie Darden constituted self-

defense or that the act was the result of a sudden and

intense passion resulting from serious provocation. She

contended that there was no prior plan made between her

and Mr. Thomas to kill Ms. Darden and that her statement

indicated that petitioner was confronted by Ms. Darden

holding a knife. (R.232-34)

The trial court found petitioner and Edwin Thomas

guilty of the murder of Odessa Harris and Mattie Darden.

(R.239) The trial court stated:

As to the contention of the defendant, particularly

the defendant Lee as stated by her attorney, that

Voluntary Manslaughter which is [sic] resulted from

a sudden and intense passion, that is disputed by the

statement of her co-defendant, who stated that he

asked Miss Lee do you want to go through with it. A

previously conceived plan to dispose of Miss Darden.

And after some thinking, as stated by Mr. Hudlin,

she responded that she did. There is no showing that

they acted under a sudden and intense passion, in

fact prior to the stabbing, according to his own con-

fession, the defendant [Edwin Thomas] took a knife,

took it back to the chair where he kept it, and awaited

the arrival of Miss Harris into the kitchen, in fact had

his co-defendant call her so she could [sic] come out.

6

Now that isn’t sudden and intense passion. There

was no self-defense that even entered into a struggle

between the defendant Lee and her aunt in the bed-

room. She went in there, and expected the aunt to

have a gun, the aunt didn’t. She had a knife, however.

a she stabbed her, then they both acted together.

(R.238)

On September 7, 1982, the petitioner was ser.tenced for

the murder of Odessa Harris to a term of forty years

incarceration. For the murder of Mattie Darden the peti-

tioner was sentenced to a term of natural life imprison-

ment. (J.A. 28)

On appeal to the Appellate Court of Illinois petitioner

contended, inter alia, that her sixth and fourteenth

amendment right to confront the witnesses against her

was violated by the trial court’s consideration of Mr.

Thomas confession against her. The petitioner contended

that under Bruton v. United States, 391 U.S. 123 (1968),

the trial court improperly rejected her defense based

upon Mr. Thomas’ statement. On December 7, 1984, the

Appellate Court of Illinois, Fifth Judicial District, in an

unpublished order, rejected her argument. The Appellate

Court held that the statements made by petitioner and

Mr. Thomas were “interlocking confessions”, and there-

fore did not fall within the Bruton rule. Petitioner filed a

timely petition for leave to appeal to the Illinois Supreme

Court, which was denied on April 2, 1985. This Honorable

Court granted a writ of certiorari on July 1, 1985.

SUMMARY OF ARGUMENT

In finding petitioner guilty of murder, the trial court

relied upon the nontestifying co-defendant’s confession to

establish the defendant’s prior intent to commit the

offense, thus negating her affirmative defense. The

court’s consideration of the co-defendant’s confession

7

against petitioner violated her sixth and fourteenth

amendment right to confront the witnesses against her,

since the co-defendant did not testify at trial and peti-

tioner was unable to cross-examine him. The Appellate

Court of Illinois’ decision that petitioner’s and Mr.

Thomas’ statements are “interlocking confessions” is

erroneous. The statements are not “interlocking” in the

crucial area of intent to kill.

ARGUMENT

THE PETITIONER’S SIXTH AND FOURTEENTH AMEND-

MENT RIGHT TO CONFRONT THE WITNESSES AGAINST

HER WAS VIOLATED BY THE TRIAL COURT'S CONSIDERA-

TION OF THE NONTESTIFYING CO-DEFENDANT’S CON-

FESSION AS SUBSTANTIVE EVIDENCE IN DETERMINING

PETITIONER’S GUILT.

Among the paramount rights afforded by the Constitu-

tion of the United States is the right of an accused to

require that the accusers appear before the trier of fact

and subject their accusations against him to cross-exam-

ination. The sixth amendment of the Constitution of the

United States provides:

In all criminal prosecutions, the accused shall enjoy

the right . .. to be confronted with the witnesses

against him... .

U.S. Const. amend. VI. This Honorable Court held in

Pointer v. Texas, 380 U.S. 400 (1965), that the sixth

amendment right to confront the witnesses against a

defendant is applicable to the states through the four-

teenth amendment. The denial of this right “calls into

question the ultimate ‘integrity of the fact-finding pro-

cess.’” Chambers v. Mississippi, 410 U.S. 284, 295 (1973),

quoting Berger v. California, 393 U.S. 314, 315 (1969).

Anessential element of a fair trial is that the trier of fact

consider only relevant and competent evidence in deter-

8

mining the facts in a case and reaching a verdict against an

accused. See Blumenthal v. United States, 332 U.S. 539

(1947). The sixth amendment right to confront witnesses

is one of those enumerated rights of the Constitution

available to everyone, without regard to guilt or inno-

cence, to ensure a fair trial. The confrontation clause of

the sixth amendment is designed to maintain the integ-

rity of the fact-finding process and procedure at trial. This

Honorable Court has noted on numerous occasions that

the sixth amendment right of confrontation would be

meaningless without the opportunity for cross-examina-

tion of the accusers. Davis v. Alaska, 415 U.S. 308 (1974):

Anderson v. United States, 417 U.S. 211 (1974); Douglas

v. Alabama, 380 U.S. 415 (1965). This Honorable Court in

Davis v. Alaska, stated: “Confrontation means more than

being allowed to confront the witness physically. . . . ‘The

main and essential purpose of confrontation is to secwre

for the opponent the opportunity of cross-examination’.”

415 U.S. at 315-16, citing Professor Wigmore at 5 J. Wig-

more, Evidence § 1395, p. 123 (3d ed. 1940).

In orally pronouncing petitioner guilty of both mur-

ders, the trial court, sitting as the trier of fact, stated in

response to petitioner's defense:

As to the contention of the defendant, particularly

the defendant Lee as stated by her attorney, that

Voluntary Manslaughter which is [sic] resulted from

a sudden and intense passion, that is disputed by the

statement of her oo-dendand. who stated that he

asked Miss Lee do you want to go through with it. A

previously conceived plan to dispose of Miss Darden.

And after some thinking, as stated by Mr. Hudlin,

she responded that she did. There is no showing that

they acted under a sudden and intense passion, in

fact prior to the stabbing, according to his own con-

fession, the defendant [Edwin Thomas] took a knife,

took it back to the chair where he kept it, and awaited

9

the arrival of Miss Harris into the kitchen, in fact had

his co-defendant call her so she could [sic] come out.

Now that isn’t sudden and intense passion. There

was no sel a that even entered into a strugzle

between the defendant Lee and her aunt in the bed-

room. She went in there, and expected the aunt to

have a gun, the aunt didn’t. She had a knife, however.

And she stabbed her, then they both acted together.

(R.238) (emphasis added)

(J.A. 25) The co-defendant did not testify at their joint

trial. Petitioner was therefore not able to subject his

accusations to cross-examination and was thereby denied

her right of confrontation.

Petitioner's defense at trial was two pronged. First, she

argued that she did not plan with Mr. Thomas to kill any-

one. She argued that her statement indicated that she did

not have any prior knowledge that Ms. Harris would be

killed by Mr. Thomas; that she did not participate or aid

Mr. Thomas in any manner in killing Ms. Harris. There-

fore, she could not be found guilty of the murder of Ms.

Harris as a direct participant or as being accountable for

the actions of Mr. Thomas. ! Secondly, she argued that her

statement indicated that after Mr. Thomas stabbed Ms.

Harris she ran into Ms. Darden’s bedroom and was con-

fronted by Ms. Darden with a knife. She obtained a knife

' The Illinois accountability statute provides:

A person is legally accountable for the conduct of another when:

* . .

(c) Either before or during the commission of an offense, and

with the intent to promote or facilitate such commission, he

solicits, aids, abets, agrees or attempts to aid, such other person

in the planning or commission of the offense.

Ill. Rev. Stat., 1983, Ch. 38, §5-2(c). Under Illinois law a person

cannot be held accountable for an offense for actions taken by the

person after the offense has been completed. People v. Malcolm, 14

Ill. App. 3d 378, 302 N.E.2d 352 (1st Dist. 1973).

10

and stabbed Ms. Darden. She concluded that she could

not be found guilty of murder, but only of the lesser

offense of voluntary manslaughter.2 Voluntary man-

slaughter could be based either on the unreasonable belief

in the need for her actions in self-defense or on the court's

finding that she was acting under a sudden and intense

passion resulting from serious provocation. (R.232-34)

In Bruton v. United States, 391 U.S. 123 (1968), This

Honorable Court held that the right of confrontation, the

right of cross-examination, is violated at a joint jury trial

when a co-defendant’s confession inculpating the defen-

dant is admitted into evidence and the co-defendant does

not testify. In Bruton, Your Honors established that

there is too great a danger that the jury cannot follow the

instructions of the court not to consider a co-defendant’s

confession against the defendant.? The rule had pre-

* The Illinois voluntary manslaughter statute states:

A person who kills an individual without lawful justification

commits volun manslaughter if at the time of the killing he is

acting under a sudden and intense passion resulting from serious

provocation by:

(1) The individual killed, or

(2) Another whom the offender endeavors to kill, but he negli-

gently or accidentally causes the death of the individual killed.

Serious provocation is conduct sufficient to excite an intense

passion in a reasonable person.

(b) A person who intentionally or knowingly kills an individual

commits voluntary manslaughter if at the time of the killing he

believes the circumstances to be such that, if they existed, would

justify or exonerate the killing under the principles stated in

Article 7 of this Code, but his belief is unreasonable.

Ill. Rev. Stat., 1983, Ch. 38, § 9-2.

*See Roberts v. Russell, 392 U.S. 293 (1968), applying Bruton to

the states because “the error ‘went to the basis of fair hearing and

trial because the procedural apparatus never assured the [petitioner!

a fair determination’ of his guilt or innocence.” 392 U.S. at 294.

quoting Linkletier v. Walker, 381 U.S. 618, 639 n.20 (1965).

ll

viously been that a proper jury instruction which limited

the use of the co-defendant’s confession strictly against

the co-defendant was proper. 391 U.S. at 135-36; See Delli

Paoli v. United States, 352 U.S. 232 (1957). While Justice

White dissented from the disposition made by The Court

in overruling Delli Paoli in Bruton, he agreed that the

hearsay statement of the co-defendant was not admissible

against Bruton, stating: “As to him it was inadmissible

hearsay, a presumptively unreliable out-of-court state-

ment of a nonparty who was not a witness subject to

cross-examination. Admitting [the co-defendant’s] con-

fession against Bruton would require a new trial unless

the error was harmless.” 391 U.S. at 138.

Normally a Bruton type problem is not presented in a

trial before the bench without a jury. Where the record is

silent, the court is presumed to knew the law and not

consider a co-defendant’s confession against another

defendant, but only consider the competent evidence

against each defendant. Cockrell v. Oberhauser, 413 F.2d

256, 258 (9th Cir. 1969), cert. denied, 397 U.S. 994. See

also People v. McNeal, 56 Ill. App. 3d 132, 371 N.E.2d

926, 931-32 (1st Dist. 1977). However, this record is not

silent and it is clear from this record that the trial court

did consider such improper evidence against the peti-

tioner; thus the presumption fails and a deprivation of the

right to confront has occurred. United States v. Longee,

603 F.2d 1342, 1345 (9th Cir. 1979). See also People v.

Pettis, 104 Ill. App. 3d 275, 482 N.E.2d 935 (1st Dist.

1982). The co-defendant’s confession is hearsay and cannot

be used as substantive evidence against the petitioner.

People v. Tyner, 30 Ill. 2d 101, 195 N.E.2d 675 (1964). This

Honorable Court noted in Bruton that there is no recog-

nized exception to the hearsay rule permitting the trier of

fact to consider a nontestifying co-defendant’s confession

against another defendant. 391 U.S. at 128 n.3. The co-

12

o_

defendant's confession cannot be used against the peti-

tioner on the theory that it is the statement of-a-co-

conspirator, since it is merely a narrative of Mr. Thomas’

version of what occurred, not a statement in furtherance

of a conspiracy. Delli Paoli v. United States, 352 U.S. 232

(1957); People v. Simpson, 39 Ill. App. 3d 318, 349 N.E.2d

441 (4th Dist. 1976). See Fed. R. Evid. 801(d)(2)(E).

On appeal before the Appellate Court of Illinois, Fifth

Judicial District, the State of Illinois conceded that-the

trial court considered the co-defendant’s confession as

substantive evidence against the petitioner. (Brief for

Plaintiff-Appellee at 3,8) Before This Honorable Court in

its brief in opposition to her petition for a writ of certiorari

the State again conceded that the trial - ,urt erroneously

considered Mr. Thomas confession’ znst the petitioner.

(Respondent's brief in opposition «. 4-5) The Appellate

Court of Illinois in its decision agreed that the trial court

considered the co-defendant’s confession against the peti-

tioner (J.A. 34), however The Court rejected petitioner’s

contention that her sixth and fourteenth amendment

rights were violated. (J.A. 34) The Court stated:

It is well settled that a substantial difference exists

between the Bruton rule and the interlocking con-

fession situation. In the former situation, a jury

hears only the co-defendant’s statement incriminat-

ing the defendant who has himself made no admis-

sions whatsoever, whereas in the latter situation, the

jury hears a co-defendant’s statement incriminating

the defendant who had himself made similar

inculpatory admissions. When the interlocking

admissions are inculpatory, the admission of co-

defendant's incriminating statement against defen-

dant does not fall within the Bruton rule. Hence

defendant's first argument fails. People v. Bassett

(1974), 56 Ill. 2d 285, 307 N.E.2d 359, 365; People v.

13

Rosochacki (1969), 41 Ill. 2d 483, 244 N.E.2d 136,

141-42.

(J.A. 34)

The Appellate Court of Illinois’ reliance upon Bassett

and Rosochacki is a fundamental misapplication of the

law. In People v. Rosochacki, 41 Ill. 2d 483, 244 N.E.2d

136 (1969), the Illinois Supreme Court held that where a

nontestifying co-defendant’s extrajudicial statement is

admitted as evidence of the declarant’s guilt at a joint jury

trial in violation of the Bruton rule, the prejudice inherent

in such evidence is diminished if the defendant has himself

made a similar statement. For this reason, admission of a

nontestifying co-defendant’s interlocking confession can

under some circumstances be harmless error. This was

the position of Justices Brennan, Marhsall, Blackmun,

and Stevens in Parker v. Randolph, 442 U.S. 62 (1979). In

People v. Bassett, 56 Ill. 2d 285, 307 N.E.2d 359 (1974),

the Illinois Supreme Court apparently adopted, sub

silentio, the position that “interlocking confessions” do

not fall within the Bruton rule. This was the position

taken by Chief Justice Burger, and Justices Stewart,

White, and Rehnquist in Parker.

In Parker This Honorable Court reviewed the order of

the federal district court granting habeas corpus relief to

three nontestifying co-defendants who had made inter-

locking confessions which were admitted at their joint

jury trial. Chief Justice Burger and Justices Stewart,

White, and Rehnquist expressed the view thatthe admis-

sion of interlocking confessions of nontestifying co-defen-

dants with proper limiting instructions conforms to the

requirements of the sixth and fourteenth amendments.

Justice Rehnquist, writing for the four justices, reasoned

that:

14

The right protected by Bruton—the “constitutional

right of cross-examination,” id., at 137—has far less

practical value to a defendant who has confessed to

the crime than to one who has consistently main-

tained his innocence. Successfully impeaching a co-

defendant’s confession on cross-examination would

likely yield small advantage to the defendant whose

own admission of guilt stands before the jury

unchallenged.

Parker v. Randolph, 442 U.S. at 73 (emphasis added).

Justice Blackmun concurred in the results reached in

the plurality opinion but disagreed with the view that

there was per se no violation of the sixth amendment right

of confrontation when the defendant has made a state-

ment similar to that of his nontestifying co-defendent.

Justice Blackmun expressed the view that admission of

the nontestifying co-defendant’s statement was error.

that the degree of prejudice inherent in the error should

be examined on a case-by-case basis, and that reversal

was not required where the error was harmless beyond a

reasonable doubt. Parker v. Randolph, 442 U.S. at 77-81.

Justice Stevens writing for the three dissenting jus-

tices reasoned that the plurality incorrectly assumed

“that all unchallenged confessions by a defendant are

equally reliable.” Parker v. Randolph, 442 U.S. 84. Jus-

tice Stevens pointed out that in some cases the defendant’s

inculpatory statement may be ambiguous, incomplete or

the result of coercive influences, and thus not sufficiently

convincing to negate the prejudice inherent in violating

the constitutional right to cross-examine the co-defen-

dant. Parker v. Randolph, 442 U.S. at 84-86.

As the Illinois Supreme Court stated in People v. Reich-

ert, 352 Ill. 358, 185 N.E. 585, 586 (1933), “[clourts have

no more right than a jury to convict the accused on incom-

petent evidence.” In United States v. Longee, 603 F.2d

15

1342 (9th Cir. 1979), the United States Court of Appeals

for the Ninth Circuit recognized this principle and held

that a Bruton problem may be reversible error in a trial

before the bench without a jury. The Court in Longee

stated:

The fact that the defendants were tried to the court

rather than to ajury does not eliminate the error. The

disregard of incriminating evidence as against only

one defendant in a joint trial has been termed “a

mental gymnastic which is beyond, not only [the

jury’s] powers, but anybody’s else.” Nash v. United

States, 54 F.2d 1006, 1007 (2d Cir. 1932) (L. Hand, J.),

quoted in Bruton, 391 U.S. at 132 n.8, 88 S.Ct. at

1626. It is for this reason that the use of a limiting

instruction in a jury trial is inadequate to cure the

error. Bruton, 391 U.S. at 135-37, 88 S.Ct. at

1627-29. Here, there was neither an objection by

defense counsel nor an indication in the record that

the district judge attempted to disregard Chaser's

statements as evidence against Longee. Indeed, he

specifically referred to them in his findings.

603 F.2d at 1345.

While the petitioner’s and the co-defendant’s state-

ments contain many similarities, crucial differences do

exist. Those crucial differences were the very points

relied upon by the trial court in rejecting petitioner's

defense at trial. The reasoning of the Appellate Court fails

when it stated:

Although the judge did consider co-defendant

Thomas confession, it is evident from the record that

he considered the defendant’s confession as well.

Defendant’s statement reveals her attack on Darden

was not the result of self-defense, for after she had

left Darden’s bedroom originally there was no need

for her to return to the bedroom. Furthermore,

defendant alluded to a plan in her own confession,

16

where she stated:

Lee: Me, and Edwin [sic] had talked about stopping

aunt Mattie from harassing me before.+ * +

(J.A. 34). The Court incorrectly assumed that this showed

a plan on the part of petitioner to murder Mattie Darden.

Petitioner's statement does not show such an intent to kill.

nor a plan to murder Mattie Darden. The Court ignored

the continuation of petitioner’s statement when she told

the police:

Edwin used to get mad when my aunt would talk

about me and that he couldn’t take much more of

what my auntie was doing, that [sic] when he began

talking about doing something to aunt Beetty [sic],

but he never said what. (emphasis added).

(J.A. 12) No prior plan between petitioner and the co-

defendant can be found in petitioner's statement.

Justice Stevens’ concern in Parker that the defendant's

statement may be ambiguous or incomplete is present in

this case. Petitioner's statement is incomplete in that it is

not a confession to murder; it demonstrates neither an

intent to kill nor premeditation on her part. It is

incomplete in that the trial court had to utilize the co-

defendant's confession to impute to petitioner a prior plan

to commit murder. On the other hand, Justice Rehrquist’s

theory of harmlessness is not present. Contrary to the

assertion in Parker that cross-examination and impeach-

ment of the co-defendant’s statement would “likely yield

small advantage to the defendant,” impeachment of the

co-defendant’s confession as to the existence of a plan and

intention to kill would reap great dividends for the peti-

tioner here.

The error in this case cannot be considered harmless

error beyond a reasonable doubt as This Honorable Court

enunciated that standard in Chapman v. California, 386

17

U.S. 18 (1967), and Fahy v. Connecticut, 375 U.S. 85

(1963). In Fahy The Court stated: “The question is

whether there is a reasonable possibility that the evi-

dence complained of might have contributed to the convic-

tion.” 375 U.S. at 86-87. This Honorable Court adhered to

this statement in formulating the harmless beyond a rea-

sonable doubt standard of Chapman. 386 U.S. at 23-24.

There is not just the “reasonable possibility that” co-

deféndant Thomas confession “might have contributed to

the conviction” of the petitioner, but the certainty that the

co-defendant’s confession contributed to her conviction.

The trier of fact stated that the co-defendant’s confession

was a contributing factor to her conviction. A determina-

tion that the constitutional error in this case was harmless

beyond a reasonable doubt would be inappropriate.

This Honorable Court in Bruton was concerned that:

(T]here are some contexts in which the risk that the

jury will not, or cannot, follow instructions is so

great, and the consequences of failure so vital to the

defendant, that the practical and human limitations

of the jury system cannot be ignored. . . . Such a

context is presented here, where the powerfully

incriminating extrajudicial statements of a co-defen-

dant, who stands accused side-by-side with the

defendant, are deliberately spread before the jury in

a joint trial. Not only are the incriminations devastat-

ing to the defendant but their credibility is inevitably

suspect, a fact recognized when accomplices do take

the stand and the jury is instructed to weigh their

testimony carefully given the recognized motivation

to shift blame onto others. The unreliability of such

evidence is intolerably compounded when the alleged

accomplice, as here, does not testify and cannot be

tested by cross-examination. It was against such

threats to a fair trial that the confrontation clause

was directed.

18

391 U.S. at 135-36. The Court in Bruton acknowledged

“the impossibility of determining whether in fact the jury

did or did not ignore [th2 co-defendant’s] statement

inculpating [Bruton] in determining [Bruton’s] guilt.” 391

U.S. at 136.

In this case we do not have just the danger that the trier

of fact will not follow the law as in Bruton, but the trial

court’s own statement that it was not following the law. In

his concurrence in California v. Green, 399 U.S. 149,

172-89 (1970), Justice Harlan traced the history of the

confrontation clause of the sixth amendment and adopted

the view that it was a constitutional assurance that a fair

defense could be made to criminal accusations. Justice

Harlan stated: “From the scant information available it

may tentatively be concluded that the Confrontation

Clause was meant to constitutionalize a barrier against

flagrant abuses, trials by anonymous accusers, and

absentee witnesses.” 399 U.S. at 179. Justice Harlan also

stated that “the paradigmatic evil the Confrontation

Clause was aimed at [was] trial by affidavit. . . .” Dutton

v. Evans, 400 U.S. 74, 94 (1970) (Harlan, J., concurring).

Such evils are present in this case. Petitioner was not

permitted to make a fair defense; she was unable to cross-

examine the co-defendant since he did not testify at trial,

and thereby became an absertee witness. The paradig-

matic evil of trial by affidavit is presented in this case in a

fashion more detrimental to a fair trial, since the co-

defendant's statement was unsworn hearsay, not a sworn

affidavit under the penalties of perjury. The trial court’s

consideration of Mr. Thomas’ confession against peti-

ticner is a flagrant abuse that the sixth amendment was

designed to prohibit.

Petitioner respectfully requests This Honorable Court

to reverse the judgments of the Appellate Court of IIli-

19

nois, Fifth Judicial District, and of the Circuit Court of St.

Clair County, and remand the cause for a new trial.

CONCLUSION

The petitioner's right to confront the witnesses against

her was violated by the court’s consideration against her

of her nontestifying co-defendant’s confession. This

Honorable Court’s decisions in Bruton v. United States

and Parker v. Randolph demonstrate that the Appellate

Court of Illinois, Fifth Judicial District, erroneously

determined that no constitutional violation occurred.

Therefore, the petitioner prays that This Honorable

Court reverse the judgments of the Appellate Court of

Illinois, Fifth Judicial District and the Circuit Court of St.

Clair County, and grant the petitioner a new trial.

Respectfully submitted,

Dan W. EVERS

Assistant Defender

RANDY E. BLUE*

Deputy Defender

Office of the State

Appellate Defender

Fifth Judicial District

Route 15 East

P.O. Box 2430

Mt. Vernon, I[llinois 62864

(618) 244-3466

Cou nsel for Petitioner

*( ounsel of Record