Respondents Brief — Lee v. Illinois

Sale .

* 1 yar

et he

3

et 8

ane

*

19

2

*

“tet 84.0807

Petitioner,

V.

THE PEOPLE OF THE STATE OF ILLINOIS,

Respondents.

——————————— eo ———————————————————— ll

On Writ Of Certiorari To The Illincis

Appellate Court, Fifth Judicial District

BRIEF FOR RESPONDENTS

TA

NEIL F. HARTIGAN

Attorney General, State of Illinois

JILL WINS-BANKS

First Assistant Attorney General

MARK L. ROTERT*

Chief, Criminal Appeals Division

Office of the Attorney General

State of IIlinois

100 West Randolph Street, 12th Floor

Chicago, IIlinois 60661

(312) 917.2235

Counsel for Respondents

* Counsel of Record

— Tate: polka * eS “Tr

BESTAVAILABLECOPY =

i

QUESTIONS PRESENTED FOR REVIEW

1. Whether the confession of Petitioner’s codefendant

was 80 reliable that its use as substantive evidence against

Petitioner was fuliy consistent with the Confrontation

Clause.

2. Whether Petitioner’s claims arising under the Con-

frontation Clause can survive where she declined an op-

portunity to cross-examine the witness in question.

3. Whether, in a case where both Petitioner and her

codefendant confess to two murders, the use of the code-

fendant’s confession against Petitioner was merely harm-

less error.

TABLE OF CONTENTS

QUESTIONS PRESENTED FOR REVIEW. i

TABLE OF AUTHORITIES ................. iii

OPINIONS AND JUDGMENTS BELOW ..... 1

JURISDICTIONAL STATEMENT ........... 2

CONSTITUTIONAL PROVISIONS INVOLVED . 2

2

8

STATEMENT OF THE CASE ...............

SUMMARY OF ARGUMENT ................

ARGUMENT:

I

A CODEFENDANT’S CONFESSION, MADE

AGAINST PENAL INTEREST, ACCEPTING

HIS RESPONSIBILITY, AND INTERLOCKING

WITH PETITIONER’S OWN CONFESSION IN

ALL MATERIAL RESPECTS, IS SUFFICIENT-

LY RELIABLE FOR USE AS SUBSTANTIVE

EVIDENCE WHERE THE CODEFENDANT

IS UNAVAILABLE AND WHERE CROSS-

EXAMINATION WOULD BE OF LITTLE

VALUE. THEREFORE, NO SIXTH AMEND-

MENT ERROR OCCURRED AT TRIAL .... 9

II.

PETITIONER’S SIXTH AMENDMENT RIGHTS

WERE NOT TRANSGRESSED BY THE INTRO-

DUCTION OF HER CODEFENDANT’S CON-

FESSION BECAUSE SHE WAS AFFORDED

THE OPPORTUNITY TO CROSS-EXAMINE

HER CODEFENDANT BUT DECLINED TO *

..und bee

III.

ERROR, IF ANY, ARISING FROM THE TRIAL

COURT’S CONSIDERATION OF PETITIONER’S

CODEFENDANT’S CONFESSION AS SUB-

STANTIVE EVIDENCE AGAINST PETI-

TIONER WAS HARMLESS BEYOND A REA-

SONABLE DOUBT ..........0-.eeeeeeeees 28

CORTES is ee ea ese de 35

TABLE OF AUTHORITIES

Cases PAGE

Bruton v. United States, 391 U.S. 123, 88 S.Ct.

1620, 20 L.Ed.2d 476 (1968) .. 9, 10, 15, 16, 21, 25, 28

California v. Green, 399 U.S. 149, 90 S.Ct. 1930,

26 L.Ed.2d 489 (1970) ........ 12, 14, 15, 22, 24, 27

Chambers v. Mississippi, 410 U.S. 284, 93 S.Ct.

1038, 35 L.Ed.2d 297 (1973) ............... 23

Dutton v. Evans, 400 U.S. 74, 91 S.Ct. 210, 27

L.Ed.2d 213 (1970) ............... 9, 12, 14, 21, 28

Harrington v. California, 395 U.S. 250, 89 S.Ct.

1726, 23 L.Ed.2d 284 (1969) ............... 28, 29

Nelson v. O Veil, 402 U.S. 622, 91 S.Ct. 1723, 29

ED erry re 22, 28

Ohio v. Roberts, 448 U.S. 56, 100 S.Ct. 2531, 65

L.Ed.2d 597 (1980) õ⸗u 12, 13, 14

Parker v. Randolph, 442 U.S. 62, 99 S.Ct. 2132, 60

X MEE, can vees ices veseursenes passim

iv

People v. Gil, 125 Ul. App. 3d 892, 466 N.E.2d 1205

Chet. Dats SOD iach Cac nsiti ds aca Baca 19

People v. Richardson, 32 III. 2d 472, 207 N.E.2d 478

(1965), cert. denied, 384 U.S. 1021 (1965) ... 19

People v. Tate, 87 Ill. 2d 134, 429 N.E.2d 470

b e severe 23, 24

People v. Thornton, 26 III. 2d 218, 186 N.E.2d 239

aan dere ce Wakes Bar eius 20

People v. Tyner, 30 III. 2d 101, 195 N.E.2d 675

(1964) (distinguished) 22

Pointer v. Texas, 380 U.S. 400, 85 S.Ct. 1065, 13

F cS cic ecdékes sadewovevGas 11

Schneble v. Florida, 405 U.S. 427, 92 S. Ct. 1056, 31

L.Ed.2d 340 (19700 t 16, 28, 29, 32, 33

Tennessee v. Street. U. 8. 105 S.Ct.

r 34

United States v. Harris, 403 U.S. 573, 91 S.Ct.

2075, 29 L.Ed.2d 728 (197177 21

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

1979) (distinguished) ..............eeecceees 9, 10

United States v. Matlock, 415 U.S. 164, 94 S.Ct.

988, 39 L.Ed.2d 242 (1974) ................ 21

United States v. Parker, 622 F.2d 298 (8th Cir.

1980), cert. dented, 449 U.S. 851 (1980) .... 18

United States v. Raternina-Vergara, 749 F.2d 993

(2d Cir. 1984), cert. denied, 105 S.Ct. 1197

ooo ( ( eeiaee ar ecia 18, 19

United States ex rei. Duff v. Zelker, 452 F.2d 1009

(2d Cir. 1971), cert. denied, 406 U.S. 982 (1972) .. 27

United States ex rel. Faulisi v. Pinkney, 611 F. 2d

o ̃ ˙ 9

Vv

Statutes and Rules

Federal Rules of Evidence, Rule 804(bX3) ..... 13

Ill. Rev. Stat., ch. 38, $5-2(c) ...........0045- 19, 30

Ili. Rev. Stat., ch. 38, - Hal) 2, 19, 33

Tl. Rev. Stat., ch. 38, 59 ............. ori: |

Ili. Rev. Stat., ch. 38, §§ 114-8, 114-11 ........ 26

Treatises

Comments: Federal Rule of Evidence 804(b)(8) and

Inculpatory Statements Against Penal Interest,

66 Cal. L. Rev. 1189 (1978) ............... 21

Haddad, Post-Bruton Developments: A Reconsider-

ation of the Confrontation Rationale, and A

Proposal for A Due Process Evaluation of

Limiting Instructions, 18 Am. Crim. Law Rev.

%%% (( 9

:

„

Iw Tue

Supreme Court of the United States

Ocroszr Term, 1985

MILLIE R. LEE,

Petitioner,

V.

THE PEOPLE OF THE STATE OF ILLINOIS,

Respondents.

On Writ Of Certiorari To The IIlinois

Appellate Court, Fifth Judicial District

BRIEF FOR RESPONDENTS

OPINIONS AND JUDGMENTS BELOW

The Order of the Illinois Appellate Court, Fifth District,

affirming Petitioner’s convictions is not reported. A full

text of that Order is located in the Joint Appendix to this

case, at pages 30-37.

The Order of the Illinois Supreme Court denying Peti-

tioner’s request for leave to appeal her conviction to the

Illinois Supreme Court is not reported. The Order of the

Illinois Supreme Court is reproduced in the Joint Appen-

dix at page 38.

~2~

JURISDICTIONAL STATEMENT

Omitted pursuant to this Court’s Rule 34.2.

CONSTITUTIONAL PROVISIONS INVOLVED

Omitted pursuant to this Court’s Rule 34.2.

STATEMENT OF THE CASE

Petitioner, Millie Renee Lee, and a codefendant, Edwin

Thomas, were jointly charged by a St. Clair County (Illi-

nois) grand jury in a two-count indictment for murder.

Count one charged the defendants with the murder of

Mattie Darden, and count two charged them with the

murder of Odessa Harris. (J.A., pp. 2-3) Consistent with

Illinois law, III. Rev. Stat. ch. 38, § 9-1(aX1), both counts

alleged that defendants acted “without lawful justification

and with the intent to kill” their victims. (Id.)

Evidence adduced at trial revealed that on the date of

the murders, February 11, 1982, Petitioner and her two

year old son shared an apartment with the Petitioner’s

aunt, Mattie Darden. (J.A. 5) On that date, Edwin Thomas,

Petitioner’s boyfriend, was with Petitioner and her son

at that apartment when Darden returned home. Darden

was accompanied by Odessa Harris (a/k/a Odessa Donohue)

(hereinafter Odessa Harris) when they arrived at approxi-

mately 9:00 p.m.

Some time after the arrival of these two women, Edwin

Thomas left the Darden apartment briefly. Upon his re-

turn, he and Petitioner argued in the kitchen about his

departure. (J. A. 6, 17) As this discussion increased in

volume, Odessa Harris came to the kitchen and asked

Petitioner “what the hell was going on”, saying Petitioner

and Thomas “ought to be ashamed of [them]selves arguing

and making all that noise.” (J. A. 6) This prompted harsh

words between. Petitioner and Ms. Harris, after which Ms.

Harris, returned to the bedroom where Mattie Darden was

located.

Petitioner then called Odessa back into the kitchen“

ostensibly to ask whether Mattie Darden had paid the

rent. (Id.) As Harris stood with her back to Edwin

Thomas, he attacked and stabbed her with a large knife,

described as being like a machette (sic)’’. (J.A. 7) Ms.

Harris began calling out to Mattie Darden, who was still

in the bedroom. Petitioner immediately “ran or walked”

into Darden’s where she encountered Darden

in the process of ar‘: from her bed. Darden ordered

Petitioner to “get out of her way” and displayed a knife,

which she swung at Petitioner.* Petitioner promptly “ran

into the kitehen“, armed herself with a twelve-inch butcher

knife, and returned to Darden’s bedroom. (J.A. 7) She then

stabbed her aunt repeatedly.

Edwin Thomas was still struggling with Odessa Harris

during these two encounters between Petitioner and Mattie

Darden. (J.A. 19-20) By the time Thomas had subdued Ms.

Harris, Petitioner had already stabbed and disabled

Darden. Then, Thomas entered the bedroom. Petitioner

* Weapons were apparently kept in this apartment as a routine

matter “because a lot of burglaries and breakins” plagued the

apartment complex. (J.A. 6)

told him to get a hammer. When Thomas was unable to

find a hammer, Petitioner directed him to get a “cast iron

skillet” from the kitchen because Darden “was still

breathing.” (J.A. 7) He brought the skillet to Petitioner,

who used it to strike the prone figure of Mattie Darden

about the head with sufficient force to shatter the skillet,

but Ms. Darden was still alive so Petitioner told Thomas

to get yet another skillet, which he did. Petitioner and

Thomas then took turns using this second skillet as a

bludgeon against Darden. (J.A. 7-8, 20) Afterwards, Mat-

tie Darden “was barely breathing and Odessa [Harris] was

dead.” (J.A. 8)

Petitioner and Thomas then began their efforts to

remove all evidence of the murders. They stuffed the body

of Odessa Harris into a trunk and piaced it in a trash

heap. Petitioner then purchased charcoal lighter fluid (R.

55-59) which Thomas poured on the body of Ms. Harris.

He then set the trunk on fire. (J.A. 9, 22) The following

day Petitioner and Thomas discovered that Harris’ body

had not been completely consumed by this fire, so they

placed the remains in a cardboard box and set it in a gar-

bage area to make it look like trash.” J. A.)

The body of Mattie Darden was taken by Petitioner and

Thomas on the evening of the murders to a nearby va-

cant apartment, where it was placed in a closet. (J.A. 9)

Three days later, Thomas returned to the apartment and,

using the fluid purchased earlier by Petitioner, set fire

to Darden’s remains. (J.A. 11)

This latter fire was reported to the East St. Louis (Illi-

nois) fire department and led to the discovery of Darden’s

body. (R. 13-16) Initially, police believed that the body

in this vacant apartment was Harris’ because Odessa Har-

ris’ purse was discovered near the scene. In an effort to

get positive identification of these remains, the police went

ahi.

to Mattie Darden’s apartment, acting on the belief that

Darden could provide the identification. (R. 99-102) Instead

they encountered Petitioner, who told thern that Darden

was out of town visiting relatives. (R. 103) Because Peti-

tioner said she knew Odessa Harris, she was asked to

accompany the officers to view the body found in the va-

cant apartment.

While Petitioner was present at the police station, the

police were informed that the body found in the vacant

apartment was not that of Odessa Harris. They further

learned that Petitioner had recently purchased lighter

fluid in the neighborhood of the fire. (R. 103-108) Having

already observed that Petitioner’s apartment “was in

quite a shambles” as if “someone had recently been paint-

ing the walls”, (R. 102) the police decided to admonish

Petitioner of her fifth amendment privileges.

Petitioner was then asked directly whether the body

found in the vacant apartment was that of her aunt, Mat-

tie Darden. She admitted it was. She was then asked

whether she knew of Odessa Harris’ whereabouts. Peti-

tioner said Odessa is dead . . yeah, that’s right, we

killed them.” (R. 109)

Petitioner thereafter made a full confession, reproduced

in the Joint Appendix at pages 4-15. After being again

advisec of her rights, Petitioner told the police “that she

just wanted to get it off her chest. (R; 32) Because her

statement named Edwin Thomas, he was also brought to

the police station.

When Thomas first arrived at the police station he

declined to speak to the police. (R. 112) However, Peti-

tioner requested permission to see Thomas, and he asked

to see Petitioner. (R. 114) When the two were allowed

to meet, Petitioner

The confessions of both Petitioner and Thomas detail

the events of February 11, 1982, and the subsequent ef-

forts to conceal the homicides. As to events prior to that

evening, Thomas’ confession revealed that he and Peti-

tioner had previously discussed killing Mattie Darden,

“but we had not figure (sic) out just what we would do.”

(J. A. 17) Petitioner’s confession, in turn, stated that she

and Thomas “had talked about stoping (sic) aunt Mattie

from harassing me before. . [and Thomas!] began talk-

ing about doing something to aunt Beety but he never

said what.” (J.A: 12)

Thomas’ confession detailed the fact that he asked Peti-

tioner, on the evening of the murders, whether she wanted

“to go through with it.” (J.A. 17) He stated that Peti-

tioner hesitated, but said yes. He also revealed that their

plan required Petitioner to summon Odessa Harris into

the kitchen and ask her about rental payments as a ruse

to enable Thomas to attack Harris from behind. (J.A. 18)

Petitioner’s confession confirmed only tuat she summoned

Harris into the kitchen just before Thomas stabbed Har-

ris. (J.A. 6) It makes no other mention of conversations

between Petitioner and Thomas in the moments preceding

the Harris murder.

Petitioner and Thomas were appointed separate counsel

for trial. Their pre-trial mations for severance were with-

drawn on the day of trial, as was their demand for trial

~~

by jury. (R. 3) The joint trial was combined with a hear-

ing on each defendant’s motion to suppress their confes-

sions. (Id.) After the prosecution rested, each defendant

testified in support of those suppression motions. (R. 205

228) Thereafter, the trial court denied both suppression

motions and admitted Petitioner’s and Thomas’ confessions

into evidence. (R. 227) Following closing arguments, the

trial court found both Thomas and Petitioner guilty of two

counts of murder. The court’s announcement of its findings

is reproduced in full in the Joint Appendix, pages 25-26.

Thomas perfected an appeal to the Illinois Appellate

Court, Fifth District, in which he raised only the propriety

of his sentence as an issue. People v. Edwin Thomas, No.

82-538 (Ill. App. Ct., 5th Dist.) (brief of defendant-appellant).

Petitioner perfected her appeal to the same court, alleg-

ing 1) that the trial court’s announcement of its verdict

abridged her sixth amendment rights; 2) that a material

witness to her confession was not called to testify at the

motion to suppress; and 3) that her sentence was ex-

cessive. People v. Millie R. - Lee, No. 82-539 (Ill. App. Ct.,

5th Dist.) (brief for defendant-appellant). The Illinois Ap-

pellate Court rejected all three claims in an opinion re-

produced at pages 30-37 of the Joint Appendix. Petitioner

thereafter petitioned this Court for a writ of certiorari

to review the Illinois court’s rulings on the sixth amend-

ment question. That petition ys granted on July 1, 1985.

= >

SUMMARY OF ARGUMENT

The use of her codefendant’s confession as substantive

evidence against Petitioner did not violate the Confron-

tation Clause because the codefendant was unavailable,

the utility of cross-examination was slight, and the con-

fession was cloaked with sufficient indicia of reliability.

The reliability of the codefendant’s confession is clear. The

confession was a statement against penal interest; it was

corroborated. by the other physical and testimonial evi-

dence produced at trial; it made no effort to shift or avoid

responsibility; and tne confession interlocked with Peti-

tioner’s own on all salient points, including the admitted

conduct and relative culpability of Petitioner and her co-

defendant. Every act by Petitioner which constituted an

element of the crime of murder is described in her code-

fendant’s confession in the same fashion as she described

her own conduct. Therefore, no constitutional error oc-

curred when the codefendant’s confession was used as

evidence against Petitioner.

Moreover, no denial of confrontation rights may be

found in this case because the trial transcript reveals that

Petitioner declined an opportunity to cross-examine her

codefendant at their joint trial for murder.

Finally, any constitutional error perceived in this case

is harmless. Petitioner's own confession, as extensively

corroborated by the physical and testimonial evidence pro-

duced at trial, constitutes proof beyond a reasonable doubt

of her guilt for two crimes of murder. Because sufficient

proof of guilt is shown apart from the evidence contain-

ed within the codefendant’s confession, sixth amend-

ment error arising at their trial cannot be grounds for

reversal of Petitioner’s convictioné.

A CODEFENDANT’S CONFESSION, MADE AGAINST

PENAL INTEREST, ACCEPTING HIS RESPONSIBILITY,

AND INTERLOCKING WITH PETITIONER’S OWN CON-

FESSION IN ALL MATERIAL RESPECTS, IS SUFFI-

CIENTLY RELIABLE FOR USE AS SUBSTANTIVE EVI-

DENCE WHERE THE CODEFENDANT IS UNAVAILABLE

AND WHERE CROSS-EXAMINATICN WOULD BE OF

LITTLE VALUE. THEREFORE, NO SIXTH AMENDMENT

ERROR OCCURRED AT TRIAL.

Although the instant case involves the use of a code-

fendant’s confession as substantive evidence against Peti-

tioner, its outcome is not directly governed by this Court’s

decision in Bruton v. United States, 391 U.S. 123 (1968)

because of procedural and factual distinctions between the

two cases.

First, the “primary focus of the Court’s opinion in

Bruton was upon the issue of whether the jury in the

mer Rp par sip arena angi og eat

have followed the trial judge’s instructions .

v. Evans, 400 U.S. 74, n

phasis on the adequacy of jury instructions, it has been

widely held to be “simply inapplicable in the case [as here]

of a bench trial.” United States ex rel. Faulisi v. Pinkney,

611 F.2d 176, 178 (7th Cir. 1979); see also Haddad, Post-

Bruton Developments: A Reconsideration of the Confron-

tation Rationale, and A Proposal for A Due Process

Evaluation of Limiting Instructions, 18 Am. Crim. Law

Rev. 1, 27 (1980).

1 For this reason, cases cited by the Petitioner, such as United

States v. Longee, 603 F.2d 1342 (9th Cir. 1979), while no doubt

(Footnote continued on following page)

—10—

Second, Bruton is factually inapposite because, despite

the fact that the confession of Bruton’s codefendant Evans

implicated him, Bruton “maintained his innocence from

the beginning.” Parker v. Randolph, 442 U.S. 62, 72

(1979). Petitioner, by contrast, “corroborated [her] code-

fendant’s statements by heaping blame onto [her Belt. Id.

at 73.

Third, Bruton involved the spillover use against Bruton

of a confession by his codefendant Evans which was later

suppressed as evidence against Evans on grounds that it

was “tainted” by improper police interrogation. As a

result of that suppression, Evans’ conviction was set aside

by the Court of Appeals before this -Court considered

Bruton’s appeal. Bruton v. United States, supra, 391 U.S.

at 124, n. 1. Thus, the Bruton Court’s fear that the jury,

despite limiting instructions, might consider Evans’ con-

fession against Bruton was compounded by the fact that

Evans’ confession was “tainted” (and therefore unreliable)

and could not be utilized even against its maker. The facts

of this case stand in stark contrast: the Illinois trial court

specifically found the confessions of Petitioner and her co-

defendant Edwin Thomas to have been made after know-

ing and voluntary waivers of their fifth amendment priv-

ileges, and on that basis admitted each confession into evi-

dence at their joint trial. (R. 237)

Lastly, here, the question is not one of the efficacy of

=;

nouncement of its verdict finding Petitioner guilty of

murder (Joint Appendix in case 84-6807, Lee v. Iiiinois,

at pages 25-26) (hereinafter “J.A.”) indicates that the trier

of fact relied, in part, on evidence contained within the

confession of Petitiorer’s codefendant, Edwin Thomas, in

deciding Petitioner’s guilt. If Petitioner was not afforded

an opportunity to cross-examine Thomas at their trial, a

fact which will be assumed for the sake of this argument

(but see Argument II, infra), this Court must then deter-

mine whether that substantive use of the hearsay con-

fession denied Petitioner rights guaranteed her by the

Confrontation Clause. Pointer v. , 380 U.S. 400

(1965). This case thus raises a q which arises under

the Confrontation Clause of the sixth amendment but

which was not addressed by Bruton.

The present question is one foreseen in. 1979 by Mr.

Justice Svevens in his dissent from the plurality opinion

in Parker v. Randolph, supra. In that case, this Court’s

plurality opinion held that the admission of interlocking

confessions of nontestifying codefendants with proper lim-

iting instructions does not constitute a violation of Bruton,

but Mr. Justice Stevens’ dissent observed that

the factors relied on by the plurality support a

proposition no one has even remotely advocated in

De viens ened te Cte

case was so trustworthy that it should have been

PmAp wa want Spm ge See news and the

jury instructed as much. Conceivably, —

or other circumstances surrounding otherwise

missible hearsay L its reliability that

its admission in evi is justified in some situa-

tions. But before allowing such a rule to defeat a de-

fendant’s fundamental t to confront his accusers,

this Court surely should insist upon a strong show-

ing not only of the reliability of the hearsay in the

particuiar case but also of the impossibility, or at

—12—

least difficulty, of making the accusers available for

Parker v. Randolph, supra, 442 U.S. at 87 (footnote omitted).

It is that argument, not advanced by the parties or

decided by the Court in Parker, which is clearly presented

by the facts of this case. Respondents concede that the

trial court in the instant case applied limited portions of

Thomas’ confession as substantive evidence against the

Petitioner in rebuttal to affirmative defenses urged by

her. Nonetheless, Respondents urge this Court to find

that Thomas’ statement was so reliable that its use was

fully consistent with Petitioner’s sixth amendment rights.

California v. Green, 399 U.S. 149, 161 (1970).

The mission of the Confrontation Clause is to enhance

the accuracy of the truth-determining process in criminal

trials by assuring that the trier of fact [has] a satisfac-

tory basis for evaluating the truth of the prior statement.”

Dutton v. Evans,-supra, 400 U.S. at 89. Thus, while the

Clause certainly “reflects a preference for face-to-face con-

frontation at trial” through cross-examination (Ohio v.

Roberts, 448 U.S. 56, 63 (1980)), “all that the Sixth

Amendment demands [is] ‘substantial compliance with the

purpose behind the confrontation requirement. Id., 448

U.S. at 69, quoting California v. Green, supra, 399 U.S.

at 166. Where hearsay evidence appears probative and

reliable, the sixth amendment’s preference for cross-

examination will yield to society’s legitimate interest in

allowing the trier of fact to evaluate relevant and com-

petent evidence which is inherently trustworthy. See, e. g.,

California v. Green, supra.

In this case, implicit in the trial court’s admission into

evidence of the confession of the Petitioner and the con-

fession of her codefendant Thomas, after a suppression

hearing, is a specific finding that both confessions were

inti.

probative and reliable. Under these facts, to determine

whether the use of Thomas’ confession as substantive evi-

dence against Petitioner ran afoul of the Confrontation

Clause, this Court must answer two questions. Ohio v.

Roberts, supra. First, has the prosecution demonstrated

either that Thomas was unavailable as a witness so that

admission of his confession was a necessity, or alternative-

ly, that cross-examination was of such little value to Peti-

tioner that it was unnecessary? Second, was Thomas’ con-

fession, although hearsay, sufficiently reliable to “augment

accuracy in the factfinding process.” Id., 448 U.S. at 65;

see also Fed. R. Ev., Rule 804(bX3).

Application of this two-step analysis to the confession

of Petitioner’s codefendant, Edwin Thomas, clearly brings

it within the category of admissible hearsay. Thomas was

unavailable, cross-examination of him would have been of

little value to Petitioner, and his confession was demon-

strably reliable. Therefore, the admission of his confes-

sion as evidence against Petitioner satisfied both parts of

the Roberts test, and no constitutional error occurred.

A. The Declarant Was Unavailable; Moreover, The Utility

Of Cross-Examination Was Remote.

Edwin Thomas was jointly indicted with Petitioner on

two counts of murder. (J.A. 2-3) He entered a plea of not

guilty and stood trial alongside Petitioner after he and

Petitioner withdrew their motions for severance. Obvious-

ly, at all times prior to and during trial he was possessed

of his privilege against self-incrimination, and could not

be required to testify in support of his detailed confes-

sion to murder. Just as obviously, Thomas was unlikely

to waive this privilege to assist in the prosecution. The

generally accepted view in facts like these is that Thomas

was “unavailable” as a prosecution witness for purposes

—14—

of the necessity analysis. California v. Green, supra, 399

U.S. at 168, n. 17; see also McCormick, Evidence, § 253

at 608 (2d ed. 1972) (“While the rather general practice

is to speak loosely of unavailability of the witness, the

:

2

3

|

f

f

remote that it did not ire the prosecution to pro-

duce a seemingly available witness.

Okio v. Roberts, supra, 448 U.S. at 65, n. 7. Certainly,

the utility of cross-examination to Petitioner was, as to

Thomas, extremely remote. Thomas had confessed to two

murders in a statement which was virtually indistinguish-

able from that given by Petitioner when she confessed

to the same murders. Compare J.A. 4-18 (confession of

Petitioner) with J.A. 16-24 (confession of Thomas).

Under these facts, the possibility that [Petitioner’s]

cross-examination of [Thomas] could conceivably have shown

the trier of fact] that the statement, though made, might

have been unreliable was wholly unreal.” Dutton v.

Evans, supra, 400 U.S. at 89. The right to cross-examine

Thomas had “far less practical value to [Petitioner after

she] confessed to the crime.” Parker v. Randolph, 442

U.S. 62, 73 (1979). The utility of any cross-examination

by Petitioner of Thomas was, therefore, remote. Conse-

quently, proof of unavailability is not required as a pre-

requisite to admission of Thomas’ confession.

i

B. The Evidence Was Reliable.

Even where the unavailability/lack of utility prong is

established, the Confrontation Clause bars the use of hear-

say testimony unless the evidence is cleaked with suffi-

cient “indicia of reliability.” California v. Green, supra,

399 U.S. at 161. This Court must, therefore, determine

“the ‘reliability’ of the statement . . based on the cir-

cumstances under which it was given—circumstances that

remain unaffected regardless of whether the witness is

present or absent at the later trial.” Id. at 167, n. 16.

An analysis of the circumstances surrounding the mak-

ing of Edwin Thomas’ confession establishes beyond cavil

the reliability of that confession.

Although neither Parker nor Bruton controls the out-

come of this case,? both are instructive in analyzing the

reliability of Thomas’ confession, because both opinions

discuss this Court’s concerns about the reliability cf a co-

defendant’s confession which inculpates the defendant. It

has been these concerns about reliability expressed in

Bruton and Parker which have caused this Court to

preclude the use of a codefendant’s confession. However,

once these concerns are identified and evaluated in the

facts of this «ase, it will become apparent that none of

the reliability problems foreseen in other cases exist here,

and, therefore, Thomas’ confession is properiy admissible.

The primary concern expressed by the Bruton Court

about the reliability of a codefendant’s confession was the

2 The Respondents have already demonstrated that the result in

this case is not dictatec by the Court’s opinion in Bruton, see

supra. Similarly, the opinion in Parker v. Randolph, su is not

controlling here because, as Mr. Justice Stevens pointed out, that

case offered this Court no occasion to address the substantive ad-

missibility of a codefendant’s confession.

tions which she admits taking. This is reflected by

Thomas’ assurance to Petitioner before he confessed, while

both were in police custody, that neither malefactor would

be required to “take the rap alone.” (R. 114). Thomas’

confession. was given immediateiy after that encounter.

Id. Thus, this Court’s first concern about the reliability

of a codefendant’s confession is simply not present in this

case.

Second, implicit in Bruton is this Court’s concern that

a codefendant’s confession may be unreliable because it

results from coercion or is otherwise tainted by police in-

terrogation techniques. The facts of Bruton made that con-

cern a reality; id. at 124; see also Parker v. Randolph,

supra, 422 U.S. at 86 (Stevens, J., dissenting). No such

risk of unreliability exists here. The Illinois trial court,

after a full hearing, held that both Thomas’ and Peti-

tioner’s confessions were voluntarily given and not the

product of any coercive police conduct. This ruling is

Although iess frequently voiced, other concerns about

the general reliability of codefendant’s confessions have

influenced this Court’s determination of admissibility. Such

concerns include the possibility that a person may con-

fess” to a crime in an effort to curry police favor or from

Thomas' confession accurately details his actions on the

17

a psychological need to assume blame, even though the

confessor is not guilty. See, e. g., Parker v. Randolph,

supra, 442 U.S. at 86, n. 6 (Stevens, J., dissenting). No

such possibility exists here. Thomas’ confession was fully

crimes he did not commit; nor could his graphic and chilling

descriptions of these murders be viewed as a misguided

attempt to curry favor with the police. It is obvious that

evening of these murders.

Not only are this Court’s concerns about lack of relia-

bility absent here, but there is a compelling, affirmative

reason to conclude that Thomas’ confession is fully reli-

able: Thomas’ confession interlocks with the confession of

Petitioner in every salient respect. This factor is consis-

tent with the underlying premise adopted by the plurality

opinion in Parker and makes the use of Thomas’ confes-

sion against Petitioner proper under the sixth amendment.

The confessicns interlock m that both describe the same

crimes, the same time and location of the crimes, the same

victims, the same manner of attack, the same efforts to

conceal the crimes, the same motives for the crimes, and

each confession interlocks with the other regarding the

relative culpability of the actors. This fact answers the

last major concern voiced by members of this Court about

the reliability of codefendants’ confessions. Parker v. Ran-

dolph, supra, 442 U.S. at 79 (Blackmun, J., concurring);

and id. at 84 (Stevens, J., dissenting). That concern stems

from the difficult question of whether confessions in-

3

terlock where both parties confess to the same erime

but differ as to which actor performed acts constituting

a necessary element of the crime. See, e. g., United States

v. Parker, 622 F.2d 298 (8th Cir. 1980), cert. denied, 449

U.S. 851 (1980). Respondents assert that Thomas’ confes-

sion is shown to be reliable where it does not differ from

Petitioner’s confession on the pivotal issue of which de-

fendant actually performed acts constituting the elements

of the crime of murder. United States v. Paternina-Vergara,

749 F.2d 993 (2d Cir. 1984), cert. denied, 105 S.Ct. 1197

(1984).

Regarding the murder of Odessa Harris, Thomas’ con-

fession shows that he stabbed Harris: His cenfession does

not assert that Petitioner stabbed Harris. Petitioner’s con-

fession, by comparison, also asserts that Thomas stabbed

Harris and that Petitioner did not personally inflict any

wounds upon the victim. Thus, Thomas’ guilt as the prin-

cipal actor in the Harris murder is shown by his confes-

sion and is corroborated by Petitioner’s confession.

Conversely, Petitioner’s own confession demonstrates

that she was legally accountable for Thomas’ murder of

Harris, that accountable conduct is also detailed in

Thomas’ statement. Petitioner’s confession reveals that

after Thomas stabbed Harris, Harris began “moaning” -

and calling out to Mattie Darden (Petitioner’s aunt) for

help. (J.A. 7) Millie Lee did not aid Ms. Harris; Millie Lee

did not allow Mattie Darden to aid Ms. Harris; indeed,

to the contrary, Millie Lee “ran or walked” into Darden’s

bedroom and when Darden ordered Lee to “get out of

her way’, Lee armed herself with a knife and killed

Darden. Id. These facts can only be described as conduct

by Petitioner which assisted Thomas in the Harris murder

by preventing Darden from interfering with that murder.

2＋——

3

Thomas’ confession describes Petitioner’s conduct dur-

ing the Harris murder in the same fashion. He states that

after Harris was stabbed “she started calling for [Peti-

tioner’s}] Aunt. She was calling ‘Aunt Beedie, Aunt Beedie’

. I told [Petitioner] that she had to keep her Aunt

Beedie quiet’. . I handed [Petitioner] the little knife

(J.A. 19) This confession is «quivalent to Petitioner’s own

as it describes those actions by Petitioner which made her

accountable for Thomas’ conduct in murdering Harris.

These actions of Petitioner lead to the wholly legitimate

conclusion that Petitioner was legally accountable for

Thomas’ murderous actions in stabbing Odessa Harris.

Under Illinois law, Petitioner can be found guilty of mur-

der by accountability even where she struck no blows,

provided it is shown that

“(e)ither before or during the commission of an of-

fense, and with the intent to promote or facilitate

such commission, (s)he solicits, aids, abets, agrees or

attempts to aid, sach other person in the planning

or commission of the offense.

Il. Reu. Stat., ch. 38, §.5-2(c) (emphasis supplied). See also

People v. Richardson, 32 III. 2d 472, 207 N.E.2d 478, 481

(1965), cert. denied, 384 U.S. 1021 (1965); People v. Gil,

125 III. App. 3d 892, 466 N.E.2d 1205, 1207-8 (Ist Dist.

1984).

Thus, while the two confessions do not interlock “as to

[rome] details“ (United States v. Paternina-Vergara,

supra, 749 F.2d at 999), such as whether there was a

predetermined plan to murder these victims on this spe-

cific occasion, that fact is of no moment here, for premedi-

tatien is not a necessary element of the crime of murder

in Illinois, III. Rev. Stat., ch. 38, § 9-1(aX1), and defen-

dants were not charged with conspiracy. (J.A. 2-3) What

really matters is that as to the necessary elements of the

—20—

crime of Harris’ murder and accountability for that crime

of murder under Illinois law, the confessions interlock.

With regard to the second murder, Thomas’ confession

reveals that after Petitioner stabbed Mattie Darden, Peti-

tioner asked him for a hammer. Id., p. 20. He then

describes his inability to find a hammer; Petitioner’s re-

quest for and use of a skillet to beat Darden over the

head; the breaking of the skillet; and the use of a second

skillet. Jd. He carefully details the fact that both he and

Petitioner struck blows with this second skillet.

Petitioner described her acts in the murder of Mattie

Darden in almost precisely the same way. Petitioner’s con-

fession does not detail mutual combat; it does not describe

self-defense; it does not detail the crime of voluntary man-

slaughter as that offense is defined by [Illinois law (IIl. Rev.

Stat., ch. 38, § 9-2).* Petitioner confessed that upon enter-

ing the bedroom and finding Darden with a knife in her

hand, Petitioner immediately armed herself in the kitchen

and returned to the bedroom “and then I stabbed her.

I kept stabbing her.” (J.A. 7)

Petitioner’s confession also tracks Thomas’ in its revela-

tion that when her victim was totally disabled, she and

Thomas began to smash her aunt’s skull with an iron

sk leu. Gach conduct constitutes murder under Illinois law.

ee, e. g., People v. Thornton, 26 Ill. 2d 218, 186 N.E.2d

289 (1962).

Cu its face, the Petitioner’s statement is a confession

to the necessary elements of the murder of Mattie

Darden, as charged in the indictment in this case. Peti-

tioner’s confession admits conduct attributed to her by

The text of this statute is set forth in Argument III, infra,

at page 31.

~

Thomas, attributes to Thomas conduct admitted by him,

and her confession interlocks with Thomas’ on the relative

culpability of each actor in performing those acts which

constitute the elements of murder.

Thus, each confession interlocks with the other as to

each separate murder, and the mutual agreement of the

confessions as to the relative culpability of the actors pro-

vides a trier of fact with “the most knowledgeable and

unimpeachable source of information about [their] past con-

duct.” Parker v. Randolph, supra, 442 U.S. at 72, quoting

Bruton v. United States, supra, 391 U.S. at 139-40 (White,

J., dissenting): This circumstance lends to the Thomas con-

fession sufficient indicia of reliability to justify the use

of that confession as substantive evidence against Peti-

tioner.

Still another factor militates in favor of allowing the

Thomas confession to be used as substantive evidence:

his penal Interest to e K. N. and it was against

his interest to make it. These are indicia of re-

which have been widely viewed as determina-

tive of whether a statement may be placed before

the jury though there is no confrontation of the

declarant.

Dutton v. Evans, 400 U.S. 74, 89 (1970); see also United

States v. Harris, 403 U.S. 573, 584 (1971) (“Admissions

of crime . . carry their own indicia of credibility . . )

United States v. Matlock, 415 U.S. 164, 176 (1974) (same);

Fed. Rule Evid. 804(bX3); Comments: Federal Rule of

Evidence So ) and Inculpatory Statements Against

Penal Interest, 66 Cal. L. Rev. 1189, 1213 (1978) (“In-

culpatory statements should be admitted under rule

804(bX3) if they can pass a ‘strict scrutiny with corrobora-

tion’ test.) Thomas made his statement after being ad-

monished about his privilege against self-incrimination and

—22—

ment against penal interest is inherently reliable.

C. The Admissibility Of Thomas’ Confession Under Illinois

Law Does Not Control This Constitutional Question.

Petitioner urges that Thomas’ confession was inadmissi-

ble evidence against her as a matter of Illinois law. (Pet.

Brief, p. 11) Such an assertion, of course, is not deter-

minative even if true. This Court’s analysis in Bruton,

for example, was based on factors of constitutional law

“quite apart from the law of evidence.” Nelson v. O Veil,

402 U.S. 622, 626 (1971).

Furthermore, even if true, “merely because evidence

is admitted in violation of a long-established hearsay rule

does not lead to the automatic conclusion that confronta-

tion rights have been denied.” California v. Green, supra,

399 U.S. at 156. The issue before this Court is not whether

the trial judge violated an Illinois rule of evidence. The

issue raised is whether that court violated Petitioner’s

rights under the Confrontation Clause. In this regard, it

is worth repeating that the Clause “has never been held

to bar the admission into evidence of every relevant extra-

judicial statement made by a nontestifying declarant sim-

ply because it in some way incriminates the defendant.”’

Parker v. Randolph, supra, 442 U.S. at 73.

In any event, Respondents do not agree that there was

a violation of Illinois’ law of evidence. The authority on

which Petitioner relies, People v. Tyner, 30 Ill. 2d 101,

195 N.E.2d 675 (1964), is inapposite. The Tyner opinion,

which was announced four years before Bruton, addresses

an analytically distinct issue from the question presented

here. Tyner ruled on the use of a codefendant’s confession

—23—

as substantive evidence against a defendant who had not

himself confessed. As this Court’s plurality opinion in

Parker v. Randolph recognizes, and as Respondents have

urged throughout this brief, the fact that Petitioner in

this case herself gave a confession which interlocks with

that of her codefendant allows for a much different Con-

frontation Clause analysis than that applied in Tyner or

Bruton.

Moreover, Illinois’ law of evidence has evolved in the

two decades since Tyner was decided to assure consisten-

cy with the teachings of this Court on Confrontation

Clause issues. Thus, in People v. Tate, 87 Ill. 2d 134, 144,

429 N.E.2d 470, 475 (1981) the Illinois Supreme Court,

relying on Chambers v. Mississippi, 410 U.S. 284, 300

(1978), recognized the admissibility of hearsay statements-

against-penal-interest. Chambers held that the admission

of such statements is constitutionally permissible where:

(1) the statement was spontaneous and occurred shortly

after the crime; (2) the statement was corroborated by

other evidence; (3) the statement was self-incriminating

and against penal interest; and (4) there was an adequate

opportunity for cross-examination of the declarant. The

Illinois Supreme Court, in turn, adopted these four fac-

tors as “objective indicia of trustworthiness” which, when

present, render such statements admissible under Illinois

law. People v. Tate, sujra, 87 III. 2d at 144, 429 N.E.2d

at 475.

Therefore, although the Illinois Supreme Court has

never specifically decided the precise issue raised by the

Respondents herein—whether a codefendant’s statement

against penal interest may be admitted against a confess-

ing defendant where both confessions interlock as to all

salient factual elements of the crime Respondents believe

that under the Tate/Chambers analysis, the Illinois Su-

—24—

preme Court would find that Edwin Thomas’ confession

meets all four criteria and would conclude that it was

The more immediate concern is, of course, whether the

trial court’s substantive use of Thomas’ confession as evi-

dence against Petitioner was permissible under the Con-

frontation Clause. Here, as in California v. Green, 399

U.S. 149 (1970), a ruling by this Court that Petitioner’s

Confrontation Clause rights were not abridged at her trial

would allow the Illinois courts to subsequently determine

whether any violation of Illinois’ law of evidence occurred

at trial. Here, as in California v. Green, the ruling of the

Illinois Appellate Court addressed only the Petitioner’s

federal constitutional claim, and made no effort to analyze

the question of admissibility under the State’s law of evi-

dence. Therefore, a ruling by this Court that no Confron-

tation Clause violation occurred would permit the parties

to address, in an Illinois court, the question of whether

Edwin Thomas’ confession was shown to be sufficiently

trustworthy to permit its admission under the statement-

against-penal-interest exception outlined in Chambers v.

Mississippi and People v. Tate. Such a question of first

impression is appropriately left to the Illinois court, and

that collateral question is wholly distinct from the con-

stitutional issues ripe for decision by this Court.

Both Petitioner and Thomas confessed, freely and volun-

tarily, to two crimes of murder. Both did so fully aware

of the legal consequences of those confessions. Each gave

a fully detailed, internally consistent description of their

crimes which admitted every factual element for the crime

of murder, and which was thoroughly corroborated by the

extrinsic evidence in this case. Each of their confessions

interlocks with the other in the crucial area of relative

culpability. Each confession was, for ail these reasons, in-

~25—

herently reliable. As such, nothing in the Confrontation

Clause of the Sixth Amendment, as construed by this

Court, precluded the trier of fact from relying on the

Thomas confession in its determination of Petitioner’s guilt.

Therefore, the Petitioner’s claim to the contrary should

be rejected, and her convictions for murder affirmed.

II. ‘ ~

PETITIONER’S SIXTH AMENDMENT RIGHTS WERE

NOT TRANSGRESSED BY THE INTRODUCTION OF HER

CODEFENDANT’S CONFESSION BECAUSE SHE WAS

AFFORDED THE OPPORTUNITY TO CROSS-EXAMINE

HER CODEFENDANT BUT DECLINED TO DO SO.

The Respondents’ assertion that this case is not con-

trolled by Bruton v. United States, 391 U.S. 123 (1968)

is further supported by the fact that in this case, unlike

Bruton, Petitioner had but declined the opportunity to

cross-examine Edwin Thomas, whose confession was later

used as evidence against Petitioner.

Petitioner’s brief on the merits before this Court, at

page 9, contains the following assertion:

The co-defendant did not testify at their joint trial.

Petitioner was therefore not able to subject his ac-

cusations to cross-examination and was thereby

denied her right of confrontation.

The Respondents do not believe that this assertion ac-

curately portrays the facts of this case as reflected by

the trial transcript.

Petitioner and her codefendant were jointly indicted for

the murders of Mattie Darden and Odessa Harris. (J.A.

1-2) Each defendant was provided with a public defender

for trial, and prior to trial each defendant filed a motion

for severance and a motion to suppress their confessions.

—26—

See Ill. Rev. Stat., ch. 38, $§ 1148, 114-11. On the day

trial began, the defendants withdrew their request for

severance, indicated their intent to have the trial court

decide their guilt or innocence without a jury, and asked

the trial court to consider their motions to suppress

“along with the body of the trial.” (R. 3)

Thereafter, the prosecution presented its case in chief.

Few prosecution witnesses were cross-examined by coun-

sel for either defendant. The bulk of the cross-examination

which was conducted by the defendants of State witnesses

was clearly designed to address issues relevant to their

motions to suppress. (See, e. g., R. 43-54, 120-138.) When

the prosecution rested its case it moved that each defen-

dant’s confession be admitted into evidence, but the court

reserved ruling on admissibility until it had decided the

suppression motion. (R. 204)

Petitioner’s counsel then called Petitioner as a witness

“for purposes of the motion to suppress the confession

only.” (R. 205) Petiticner testified to the circumstances

surrounding her confession. (R. 205-218) Codefendant

Thomas declined to cross-examine Petitioner. (R. 213) Peti-

tioner then rested and Edwin Thomas was summoned to

testify by his counsel “under the same caveat as before.

He's testifying merely for the motion to suppress .. .

(his) statement.” (R. 219)

During direct examination of Edwin Thomas, he was

questioned by his attorney as follows:

: What condition was [Petitioner] in when you saw

her [at the police station before you confessed]?

She was crying.

Was she telling you to do anything?

She told me to go on and tell what happened.

And it is after all that that you finally told them

what happened, is that correct?

Ore e

—27—

A: Yes.

Q: Okay, I have no further questions.

[Petitioner’s counsel]: No questions, your Honor.

(R. 223-224) (emphasis supplied.)

Respondents urge that these facts reveal that Petitioner

“had an effective opportunity for confrontation” of the

witness against her. California v. Green, 399 U.S. 149,

165 (1970). Here, as in Green, the declarant was under

oath; Petitioner was represented by counsel; Petitioner

had every opportunity to cross-examine Thomas as to his

claim that he had “told them what happened“; and the

proceedings were conducted before a judicial tribunal

equipped to provide a judicial record of the proceedings.

Id. In addition, Thomas was physically present, to enable

the trier of fact an opportunity to evaluate his demeanor.

California v. Green, supra, 399 U.S. at 158.

This Court’s opinion in Green flatly rejected the notion

that confrontation is inadequate unless it is available “con-

temporaneous{ly!” with the trial itself. Jd. at 153. The

Green opinion demonstrates that the opportunity for cross-

examination at certain other stages oi an adversary pro-

ceeding (in Green, a preliminary hearing) “provides

substantial compliance with the purposes behind the con-

frontation requirement. Id. at 166.

Following the logic of Green, the United States Court

of Appeals for the Second Circuit has found, under facts

virtually indistinguishable from this case, that a defendant

is not denied his confrontation rights where an inculpa-

tory, out of court statement by a codefendant is utilized

at trial, and it is shown that the defendant had an op-

portunity to cross-examine that codefendant during a pre-

trial hearing on the voluntariness of the codefendant’s

statement. United States ex rel. Duff v. Zelker, 452 F. 2d

1009, 1010 (2d Cir. 1971), cert. denied, 406 U.S. 432 (1972).

28

The same result obtains in the case at bar. Petitioner

complains that she was not premitted to make a fair de-

fense and that this case embodies the “paradigmatic evil

of trial by affidavit. . .”. Pet. Br. at 18. Yet she stood

mute in court while her codefendant stated under oath

that his confession was an accurate summary of “what

happened” on the evening of the murders. Whatever tac-

tical or strategic reasons led to the aecision to forego

cross-examination of Thomas are not determinative of the

constitutional analysis. If anything, the likely reason was

that Petitioner could not hope to persuade the trier of

fact that Thomas’ confession was unreliable where it so

closely matched her own, Dutton v. Evans, 400 US. 74,

88 n. 19 (1970), a factor which only lends further support

to Respondents’ contention that no violation of the Con-

frontation Clause occurred here. Jd. at 88-90.

Accordingly, because Petitioner was given an opportuni-

ty to confront all witnesses against her, no sixth amend-

ment violation has been shown, and her convictions for

murder should be affirmed.

III.

ERROR, IF ANY, ARISING FROM THE TRIAL COURT’S

CONSIDERATION OF PETITIONER’S CODEFENDANT’S

CONFESSION AS SUBSTANTIVE EVIDENCE AGAINST

PETITIONER WAS HARMLESS BEYOND A REASON-

ABLE DOUBT.

Since the decision in Bruton v. United States, 391 U.S.

123 (1968) was announced, this Court has consistently held

that the harmless error doctrine applies to Bruton-type

claims arising under the Confrontation Clause. Harrington

v. Califernia, 395 U.S. 250 (1969); Nelson v. O Veil, 402

U.S. 622 (1971); Schneble v. Florida, 405 U.S. 427 (1972).

In so ruling, this Court has proceeded on the assumption

—29—

that the juries involved in those cases disregarded limiting

instructions or other efforts at redaction and utilized hear-

say declarations as substantive evidence. See, e.g., Harring-

ton v. California, supra, 395 U.S. at 258. Taerefore, the

harmless error analysis of those cascs is appropriately ap-

plied to the case at bar, where the trier of fact actually

applied the confession of codefendant Edwin Thomas as

substantive evidence against Petitioner.

Thus, even if Petitioner’s sixth amendment rights were

violated at her trial for murder in the illinois court (but

see Argument I, supra), that fact does not per se man-

date reversal of the resultant murder convictions. Schne-

dle v. Florida, supra, 405 U.S. at 430. Rather, such an

assumption simply requires this Court to apply its harm-

less error analysis to determine whether any such error

was harmless beyond a reasonable doubt. That judgment

must be based on the Court’s own reading of the record

and on what seems to the Court to have been the “proba-

ble impact” of codefendant Thomas’ cunfession on the trier

of fact. Harrington v. California, supra, 395 U.S. at 254.

Put another way, this analysis requires the Court to

decide whether the State’s case against Petitioner would

have been “significantly less persuasive” absent the

Thomas confession. Sch Florida, supra, 405 U.S.

at 432.

In perfecting an appeal from her gonvictions to the IIli-

nois Appellate Court, Fifth District, the Petitioner’s coun-

sel made the following unquali assertion: (a)dmitted-

ly, the [trial] court could have found the [Petitioner] guilty

without considering Edwin mas’ confession.” Brief for

Defendant-Appellant, People v. Lee, No. 82-539 (Ill. App.

Ct. 5th Dist.), p. 18. That statement is absolutely correct.

Petitioner’s confession, as corroborated by the other physi-

cal and testimonial evidence received at her trial, is ade-

—30—

quate to support a finding that she is guilty of the crimes

charged in the indictment.

Petitioner’s confession establishes that she was present

as an active participant when the two murders occurred.

It reveals that Petitioner killed two women because she “just

couldn’t take anymore . . . harass(ment) . . from her

victims. (J.A. 12) By its text the confession reveais that

Petitioner was accountable (see Jil. Rev. Stat., ch. 38,

9 5-2(c)) for Edwin Thomas’ act of stabbing Odessa Harris:

once Thomas stabbed Harris and Harris began calling out

to Mattie Darden for help, Petitioner confronted Darden,

saw that Darden had a knife and then armed herself with

4 knife, stabbed Darden, her aunt, and thereby prevented

her from aiding the wounded Ms. Harris. (J. A. 7) This

course of conduct can fairly be construed in only one

fashion: Petitioner intended to assist Edwin Thomas in

- the crime of murdering Odessa Harris. This fact makes

Petitioner guilty of that murder under Illinois account-

ability principles.

Similarly, Petitioner’s confession establishes her guilt for

the murder of her “Aunt Beedie“, Mattie Darden. The

text of Petitioner’s confession illustrates that she first con-

fronted her aunt after Thomas stabbed Harris; Petitioner

did so while Harris was “moaning” for help. Jd. When

Ms. Darden displayed a knife and told Petitioner to “get

out of her way” (id.), Petitioner got a knife and stabbed

her aunt repeatedly. Then, because the stabbing did not

kill her aunt, Petitioner used a skillet to bring about that

result. /

Petitioner’s confession does not, however, support her

claim that she was only guilty of voluntary manslaughter

and not murder. The Illinois statute definiag voluntary

manslaughter provides:

(b) A who inten or i kills

. A person 0 — ey Bis

the time of the killing he believes the circumstances

no mention of Darden’s actions on the evening of the

murder prior to the Harris stabbing. Moreover, Petitioner

made no effort at trial to indicate what conduct by Darden

could possibly have provoked such an inflamed response.

In like manner, Petitioner cannot rely on the “imperfect

self-defense” prong of the Illinois voluntary manslaughter

statute. ill. Rev. Stat., ch. 38, §9-2(b). To the contrary,

Petitioner’s coafession conclusively rebuts any theory of

self-defense based on the apprehension of imminent death

or great bodily harm, reasonable or otherwise. Id. The

—32—

eral times with a foot-long butcher knife, the victim fell

onto the bed, and then slid onto the floor. She was still

alive. She was moaning and groaning.” (J.A. 7) Petitioner’s

victim was by then obviously disabled. She could pose no

threat to any person. Petitioner’s conduct from this point

onward effectively discounts any claim of self-defense.

Petitioner asked Thomas to find a hammer; he could not,

so he brought Petitioner a cast iron skillet. Petitioner then

struck Darden on the head with sufficiently venomous

force to break this iron skillet into pieces. Undaunted,

Petitioner requested and received a second skillet from

Thomas, and she and Thomas then took turns bludgeon-

ing the prone figure of Mattie Darden. All of these facts

are contained within Petitioner’s confession.

Nothing in Petitioner’s statement dilutes her obvious

intent to murder Mattie Darden. Nothing produced at

Petitioner’s trial would lend even slight credence to a

claim that Petitioner acted under an apprehension, reason-

able or unreasonable, that she faced imminent peril from

Darden. The confession simply reveals an intent to com-

mit murder.

Further, the Petitioner’s confession is corroborated in

all material ways by the physical and testimonia: evidence

received at her trial. That corroboration was so exten-

sive and complete that the trier of fact felt compelled to

comment on it in announcing its verdict. (J.A. 26) The

weapons used, the lighter fluid which incinerated the vic-

tims’ bodies, and the other physical evidence recovered

from the murder scene all corroborate the details of Peti-

tioner’s confession. There was absolutely no evidence pro-

duced at trial which did not buttress the accuracy of Peti-

tioner’s confession. See Schneble v. Florida, supra, 405

US. at 431.

Under these circumstances, it is clear that the Edwin

Thomas confession is merely cumulative evidence of Peti-

—33—

tioner’s guilt, evidence which at most is corroborative of

Petitioner’s own detailed confession. Therefore, the trial

court’s announced findings in this trial were, at most,

harmless error. Schneble v. Florida, supra, 405 U.S. at

430-432

Petitioner's brief before this Court resists application

of the harmless error doctrine by claiming that nothing

in her confession shows “premeditation on her part” of

“a prior plan to commit murder.” Pet. Br. at 16. These

assertions, even if accurate, are simply irrelevant. The IIli-

nois murder statute requires proof of an intent to kill;

it does not contain, as an element of the offense of

murder, a requirement that the killing be premeditated.

Ill. Rev. Stat., ch. 38, 5 9-1(aX1).

In this regard, Respondents note that the trial court’s

announcement of its verdicts did express its belief that

“a previously conceived plan to dispose of Miss Darden”

existed between Petitioner and Edwin Thomas. This com-

ment, based on Thomas’ confession, is best understood in

context.

During their closing arguments at trial, counsel for

Thomas and Petitioner urged that, at most, their clients

were guilty of voluntary manslaughter. Petitioner’s coun-

sel argued that she was not accountable for Thomas’

murder of Odessa Harris, and that as to the murder of

Mattie Darden, “a mutual quarrel [was shown to] support

a verdict of voluntary manslaughter.” (R. 234) Thomas’

counsel argued that both murders were shown to have

been committed under an intense sudden passion.” (R.

2357

* Petitioner’s brief before this Court, at 10, appears to urge

that both prongs of Illinois’ voluntary mans ter statute could

apply to her case.

°

2

Immediately following these arguments, the trial court

announced its verdict. (J. A. 25-26) Rejecting both the

mutual quarrel” and the “sudden and intense passion”

efforts to mitigate the defendants’ crimes from murder

to voluntary manslaughter, the trial court noted that both

claims were rebutted by evidence that the murders were

planned beforehand.

This remark by the trial court is nothing more than a

rejection of Petitioner’s theory of defense by the use of

Thomas’ confession as rebuttal evidence. Even if such a

usage constitutes a technical violation of the sixth amend-

ment (but see Tennessee v. Street, U.S. 105

S.Ct. 2078 (1985)), such a violation is harmless error. Peti-

tioner’s claims of self-defense or sudden, intense passion

are equally rebutted by her own confession, as is demon-

strated above. Here again, the use of Thomas’ statement

simply could not have provided any more weight to the

overwhelming evidence of guilt provided by the Peti-

tioner’s own voluntary, detailed, fully corroborated

confession.

Application of the harmless error doctrine is particularly

appropriate in this case. Petitioner is not like the usual

defendant raising a Bruton claim; she does not come to

this Court after consistently maintaining her innocence for

the crimes charged. To the contrary, Petitioner decided

at a very early stage of this case “that she just wanted

to get it off her chest.” (R. 32) Moreover, her lengthy

and detailed confession interlocks, in all salient respects,

with the allegedly inadmissible confession of Edwin

Thomas. Here, as “in most interlocking-confession cases,

any error in admitting the confession of a non-testifying

codefendant will be harmless beyond a reasonable doubt.”

Parker v. Randolph, 442 U.S. 62, 78 (1979) (Blackmun,

J., concurring in the result.)

.

Petitioner's guilt for two erimes of murder is plainly

apparent from the record on appeal before this Court.

Once her voluntary confession was placed before a trier

of fact alongside the corroborating physical evidence

recovered from the murder scene, no plausible set of cir-

cumstances can be imagined under which Petitioner could

have been found guilty of any offense other than murder.

The efficacy of the sixth amendment and the cause of

justice are not advanced by a reversal of her convictions

under these circumstances. Because any constitutional

error arising at Petitioner’s trial was, at most, harmless,

Petitioner’s convictions must be left undisturbed.

CONCLUSION

-_-_l

This Court has consistently chosen to construe the lan-

guage of the Confror “ ation Clause in a pragmatic fashion,

allowing the vested rights of criminal defendants to be

fully protected while simultaneously recognizing that some

forms of hearsay evidence are so reliable that they should

be admissible as evidence to aid the trier of fact in reach-

ing a just verdict. This case presents the Court with an

opportunity to continue that tradition. Because the con-

fession of Edwin Thomas has been shown to be reliable

and trustworthy, the circumstances of this case establish

that his confession could be used as substantive evidence

against Petitioner without transgressing the sixth amend-

ment. Therefore, Petitioner’s convictions for murder

should be affirmed.

Alternatively, Petitioner’s convictions should be affirmed

because she was afforded an opportunity to cross-examine

her codefendant but chose not to do so. Such facts

—36—

preclude any finding that Petitioner was denied her rights

under the sixth amendment.

Finally, Petitioner’s convictions must be affirmed be-

cause she has freely and voluntarily confessed to two

crimes of murder, and any perceived sixth amendment

error arising at her trial was, in light of that corroborated

confession, plainly harmless.

Respectfully submitted,

NEIL F. HARTIGAN

Attorney General, State of Illinois

JILL WINE-BANKS

First Assistant Attorney General

MARK L. ROTERT*

Chief, Criminal Appeals Division

Office of the Attorney General

State of Illinois

100 West Randolph Street, 12th Floor

Chicago, Illinois 60601

(312) 917-2235

Counsel for Respondents

* Counsel of Record