Opposition Brief — Gross v. Illinois

Supreme Court brief1988

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NO. 88-187 Supreme Court, U.S.

EFILED

IN THE

SUPREME COURT OF THE UNITED S aTEgye pe

OCTOBER TERM, 1987 JOSEPH F. SPANIOL, JR,

HOWARD GROSS,

: Petitioner,

vs.

PEOPLE OF THE STATE OF ILLINOIS,

Respondent.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE APPELLATE COURT OF ILLINOIS

FIRST DISTRICT

BRIEF FOR RESPONDENT IN OPPOSITION

NEIL F. HARTIGAN,

Attorney General

State of Illinois

TERENCE M. MADSEN,

Assistant Attorney General

100 West Randolph Street,

Suite 1200

Chicago, Illinois 60601

Attorneys for Respondent.

RICHARD M. DALEY

State's Attorney

County of Cook

309 Richard J. Daley Center

Chicago, Illinois 60602

INGE FRYKLUND,

JAMES E. VELDMAN,*

Assistant State's Attorneys

ELIZABETH SKLARSKY,

Special Assistant State's Attogney

Of Counsel.

*counsel of Record.

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QUESTIONS PRESENTED FOR REVIEW

I. Whether this Court’ should

decline to review the appellate court's

conclusion that the cross-examination of

petitioner at the hearing on his motion to

Suppress was appropriate where the appellate

court decision was correct and was solely

based on state law; where the claim that

petitioner's Constitutional rights were

violated was never raised below; and where

the issue was never presented in the petition

for leave to appeal to the Illinois Supreme

Court.

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II. Whether this Court’ should

decline to consider whether petitioner was

proven guilty beyond a reasonable doubt where

petitioner has failed to raise any federal

question, and has raised only issues of fact

which are not matters of general importance

meriting this Court's attention; and where,

in any event, petitioner was proven guilty

beyond a reasonable doubt.

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TABLE OF CONTENTS

Questions Presented For Review.......... i

Table GF COMtentS..ccccccccccccscccccees iii

Table OF AUCHOFItleS. .ccccscccccccseseces i vi

ODARLGR. BLOW ccccccescecrcenecsesvsssesece

JUSASGICCION sa cccccccccccccssessesesesece

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Reasons for Denying the Writ:..........6.

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THIS COURT SHOULD DECLINE

TO REVIEW THE APPELLATE

COURT'S CONCLUSION THAT THE

CROSS-EXAMINATION OF PETI-

TIONER AT THE HEARING ON HIS

MOTION TO SUPPRESS WAS

APPROPRIATE BECAUSE THE

APPELLATE COURT'S DECISION WAS

CORRECT AND WAS SOLELY BASED

ON STATE LAW; BECAUSE THE

CLAIM THAT PETITIONER'S

CONSTITUTIONAL RIGHTS WERE

VIOLATED WAS NEVER RAISED

BELOW; AND BECAUSE THE ISSUE

WAS NEVER PRESENTED IN THE

PETITION FOR LEAVE TO APPEAL

TO THE STATE SUPREME COURT....

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II.

THIS COURT HAS NO GOOD

REASON TO CONSIDER WHETHER

PETITIONER WAS PROVEN GUILTY

BEYOND A REASONABLE DOUBT

BECAUSE PETITIONER HAS FAILED

TO RAISE ANY FEDERAL QUESTION,

AND HAS RAISED ONLY ISSUES OF

FACT WHICH ARE NOT MATTERS OF

GENERAL IMPORTANCE MERITING

THIS COURT'S ATTENTION. IN

ANY EVENT, PETITIONER WAS

PROVEN GUILTY BEYOND A

REASONABLE DOUBT..........e-+

CORGRGSIGR cn o6bb606bo86006066606d6 60086

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TABLE OF AUTHORITIES

Anderson v. Harless,

459 U.S. 4 (1982) .ccccccccrcccvccee

Henry v. Mississippi,

379 U.S. 443 (1965) ccc ccccccccveee

Illinois v. Gates,

462 U.S. 213 (1983) -cccccccccsvccee

In re Winship,

397 U.S. 358 (1970). ccccccccccccces

People v. Johnson, 70 Ill. App. 3d 149,

388 N.E.2d 225 (4th Dist. 1979)....

People v. Perez, 98 Ill. App. 3d 64,

423 N.E.2d 964 (4th Dist. 1981)....

People v. Smith, 67 Ill. App. 3d 952,

385 N.E.2d 707 (Sth Dist. 1978)....

United States v. Johnson,

268 U.S. 220 (1925) .cccccccccccsecs

Watts v. Indiana, 338 U.S. 49 (1949)....

Wolfe v. North Carolina,

364 U.S. LIT (1960) .ccccccccccccece

Page

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1987

HOWARD GROSS,

Petitioner,

vs.

PEOPLE OF THE STATE OF ILLINOIS,

Respondent.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE APPELLATE COURT OF ILLINOIS

FIRST DISTRICT

OPINION BELOW

The opinion. of the Illinois

Appellate Court in the above entitled cause,

dated February 8, 1988, affirmed the judgment

of conviction which was entered by the

Circuit Court of Cook County. The opinion of

the Appellate Court is reported at 166 Ill.

App. 3d 413, 519 N.E.2@€ 1043 (list Dist.

1988). On June 3, 1988 the petition for

leave to appeal to the Illinois Supreme Court

was denied. 122 Ill. 2d 576 (1988).

JURISDICTION

Petitioner seeks to invoke’ the

jurisdiction of the Court pursuant to 28

G.6.C. Gee. i237¢3) However, as to Issue I,

there is no basis for review since this issue

was resolved in the appellate court on

adequate and independent state grounds; the

issue, couched in Constitutional terms, was

never raised prior to the instant petition;

and the issue was not raised at all in the

petition for leave to appeal to the Illinois

Supreme Court. Further, this Court should

decline review 7s to Issue II because the

issue presents no federal question and the

issue presents no question of general

importance that would merit consideration by

this Court. Thus, petitioner has failed to

present grounds warranting a grant of

certiorari.

STATEMENT OF THE CASE

Petitioner was indicted for murder

and armed violence. Petitioner's pre-trial

motion to suppress was denied after a

hearing. Petitioner was convicted of murder

(with which the armed violence charge merged)

after a bench trial and was sentenced to

twenty years in prison.

REASONS FOR DENYING T” .

PETITION FOR WRIT OF CERTIORARI

THIS COURT SHOULD DECLINE

TO REVIEW THE APPELLATE

COURT'S CONCLUSION THAT THE

CROSS-EXAMINATION OF PETI-

TIONER AT THE HEARING ON HIS

MOTION TO SUPPRESS WAS

APPROPRIATE BECAUSE THE

APPELLATE COURT'S DECISION WAS

CORRECT AND WAS SOLELY BASED

ON STATE LAW; BECAUSE THE

CLAIM THAT PETITIONER'S

CONSTITUTIONAL RIGHTS WERE

VIOLATED WAS NEVER RAISED

BELOW; AND BECAUSE THE ISSUE

WAS NEVER PRESENTED IN _ THE

PETITION FOR LEAVE TO APPEAL

TO THE STATE SUPREME COURT.

Petitioner asks that a writ

certiorari issue to review what he alleges,

for the first time through the

petition, to be a violation of his

instant

Amendment rights. Petitioner claims that he

was subjected to overbroad cross-examination

when he testified during the hearing on his

motion to suppress and petitioner now claims

that because of the allegedly improper

cross-examination his Constitutional rights

were violated. Not only was this issue

correctly decided by the Illinois Appellate

Court, First District, solely under Illinois

law, petitioner never raised an issue

involving his federal Constitutional rights

in the state court. And, though petitioner

filed a petition for leave to appeal to the

Illinois Supreme Court, he did not seek

review of this issue in any form before that

court.

In the hearing on petitioner's pre-

trial motion to Suppress evidence and

Statements, petitioner testified in his own

behalf. (R. 4) On direct examination

petitioner testified that on the day of the

shooting the police came to his house without

a warrant. Rs . 22 Petitioner opened his

door in response to their knock and sat down

as the officers quietly entered | his

apartment. (R. 7) Petitioner told the

officers where he had put his gun. (R. 8) On

cross-examination the trial court allowed the

petitioner to be questioned as to whether he

knew why the police were at his home. (R.

9-31)

In the [Illinois Appellate Court,

petitioner argued that the .trial court

improperly allowed the cross-examination to

exceed the scope of direct examination and,

as a result, he was prejudiced. Petitioner

made no claim in the Illinois Appellate

Court, as he does in this petition, that he

was coerced into waiving his rights against

self incrimination in order to assert his

rights against unreasonable searches and

seizures. (Pet. for Writ of Cert. 6)

The Illinois Appellate Court found

that the cross-examination of the petitioner

was proper, and that the use of the testimony

at trial for impeachment purposes was

appropriate and within the court's

discretion. (App. Ct. Op. at 11) The

decision of the appellate court was based

soieiy on Illinois law and was correct.

This Court has consisten

that where a state court judgment rests on

adequate and independent state grounds, both

Substantive and procedural, this Court will

the instant case, the appellate court Opinion

rests solely on rinciples £ Illinois law.

The rinciple that cross-examination may

develop all circumstances within the

;

’

knowledge of the witness which explain,

qualify, discredit or destroy his direct

testimony, as was the situation here, is

rooted in Illinois law. People v. Perez, 98

Ill. App. 3d 64, 70, 423 N.E.2d 964, 968 (4th

Dist. 1981). Also resting on Illinois law is

the appellate court's finding that

petitioner's hearing testimony was properly

used for impeachment purposes at trial.

People v. Smith, 67 Ill. App. 3d 952, 958,

358 N.E.2d 707, 711 (Sth Dist. 1978).

The appellate court did not

consider the Constitutional dimension now

proposed by petitioner because it was not

heretofore raised. A federal claim must be

raised or passed on in the state court in

order for the United States Supreme Court to

invoke its jurisdiction to consider it.

Illinois v. Gates, 462 U.S. 213, 219 (1983).

And, it is not sufficient merely to allege

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the facts necessary to make a Constitutional

claim while making a similar state law claim.

Anderson v. Harless, 459 U.S. 4, 6 (1982).

Thus, since this issue was neither raised, at

least not in terms of a Constitutional

violation, nor considered in the court below,

this Honorable Court is without a reason i

consider it.

And, in his petition for leave to

appeal to the Illinois Supreme Court,

petitioner raised no issue at all regarding

the breadth of cross-examination at the

motion to suppress. Thus, since the issue

was neither presented to the Illinois Supreme

Court in the petition for leave to appeal nor

was it considered when that court denied the

petition, this Court has no basis to review

the issue.

In conclusion, the Illinois

Appellate Court correctly applied [Illinois

law in deciding this claim. Further, the

federal question presented for the first time

in this petition was never raised in the

court below and petitioner did not present

the issue in any form in his petition for

leave to appeal to the [Illinois Supreme

Court. Therefore, there is no reason for

this Court to consider this claim, and the

petition for a writ of certiorari should be

denied.

II.

THIS COURT HAS NO GOOD

REASON TO CONSIDER WHETHER

PETITIONER WAS PROVEN GUILTY

BEYOND A REASONABLE DOUBT

BECAUSE PETITIONER HAS FAILED

TO RAISE ANY FEDERAL QUESTION

AND HAS RAISED ONLY ISSUES OF

FACT WHICH ARE NOT MATTERS OF

GENERAL IMPORTANCE MERITING

THIS COURT'S ATTENTION. IN

ANY EVENT, PETITIONER WAS

PROVEN GUILTY BEYOND A

REASONABLE DOUBT.

Petitioner asks this Court to grant

certiorari to decide whether petitioner's

guilt was established beyond a_ reasonable

doubt. Specifically, petitioner claims that

the People did not presert sufficient

evidence from which petitioner's intent to

commit murder could be inferred and

petitioner seeks to have this Court review

tne factual findings of the courts below.

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In this case, petitioner does not

| dispute that he shot and killed the victim.

The sole question raised is whether the

requisite intent to commit murder was

sufficiently established by the evidence. In

Illinois the question of intent is to be

resolved by the trier of fact and that

finding will not be reversed on appeal unless

the finding is inherently impossible or

unreasonable. People v. Johnson, 70 Ill.

App. 3d 149, 153, 388 N.E.2d 225, 228 (4th

Dist. 1979).

This Court has held that, "“[oJjn

review here of state convictions, all those

matters which are usually termed issues of

fact are for conclusive determination by the

state courts and are not open for

reconsideration by this Court.” Watts v.

Indiana, 338 U.S. 49, 50 (1949); Wolfe v.

North Carolina, 364 U.S. 177, 195 (1960).

Petitioner now urges this Court to

review the appellate '‘ court's factual

determination that he was proven guilty

beyond a reasonable doubt. Petitioner raises

no federal question and thus, has not met a

fundamental requirement to invoke the

jurisdiction of this court.

Further, application of the

reasonable doubt standard to any particular

set of facts is not a matter of general

importance meriting this Court's attention.

As Justice Holmes once observed, "({wle do not

grant a certiorari to review evidence and

discuss specific facts." United States vy.

Johnson, 268 U.S. 220, 227 (1925). Although

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

Court held that the State in a criminal case

is Constitutionally required to prove an

accused guilty of the charges against him

beyond a reasonable doubt, respondent's

research of this Court's reported opinions

reveals not one case in which this Court has

exercised its discretionary jurisdiction to

consider the question of whether an accused

was in fact proven guilty beyond a reasonable

doubt. Application of the standard ‘to a

particular factual situation is simply not a

question of general importance.

Moreover, in the present case the

People did prove petitioner's guilt beyond a

reasonable doubt. At the trial in this case,

petitioner testified in his own behalf and

attempted to explain that he shot and killed

the victim accidentally. The trial court

weighed petitioner's testimony along with

other evidence presented and found

petitioner's version of the incident to be

improbable, incredible and contrary to the

physical evidence. Thus, from petitioner's

undisputed act of knowingly engaging in a

struggle while holding a loaded gun with his

Finger on the trigger so that the gun was

capable of being fired instantly, along with

other evidence presented, the trial court

correctly inferred the requisite intent to

commit murder. The appellate court dgreed

with the trial court and specifically found

the trial court's findings of sufficient

evidence warranted. Apparently, the Illinois

Supreme Court also agreed since this was the

sole issue raised in the petition for leave

to appeal to that court and that petition was

denied.

Not only was the lower court's

determination as to the sufficiency of the

evidence correct, this case does not merit

review by this Court both because no federal

question is presented and _ because the

question presented is not a matter of general

importance. Therefore, the petition for writ

of certiorari should be denied.

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CONCLUSION

WHEREFORE, for all the foregoing

reasons, the respondent respectfully prays

that this Honorable Court deny the instant

petition for a writ of certiorari.

Respectfully submitted,