Appendix — Cabrera v. Hinsley

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APPENDIX A

IN THE

UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

No. 01-4002

WILLIAM G. CABRERA,

Petitioner-Appellee,

v.

CHARLES L. HINSLEY, WARDEN,*

Respondent-Appellant.

Appeal from the United States District Court

for the Northern District of Illinois, Eastern Division.

No. 97 C 2990—Joan H. Lefkow, Judge.

ARGUED JANUARY 9, 2003—DECIDED MARCH 31, 2003

Before RIPPLE, ROVNER, and EVANS, Circuit Judges.

EVANS, Circuit Judge. The district court granted William

G. Cabrera’s petition, pursuant to 28 U.S.C. § 2254, for a

writ of habeas corpus as to convictions in the circuit court of

* Our docket was modified on January 6, 2003, to reflect that

Warden Charles L. Hinsley, and not Warden George C. Wel-

born, now has custody of Mr. Cabrera.

Se ee TT en

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Cook County, Illinois, for burglary, robbery, and murder.

The State appeals.

|

The present petition concerns convictions in 1983, as a

result of which Cabrera received sentences of 60 years im- |

prisonment for murder and 14 years each for robbery and |

burglary, the latter two reduced to 7 years by the Illinois Ap- |

pellate Court. People v. Cabrera, 480 N.E.2d 1170 (Ill. App.

1985). All sentences run concurrently. In addition, Cabrera

is serving a natural life sentence for an unrelated murder

conviction. Because of the separate murder conviction, the

relief in this case was conditioned on “the invalidation of the

other, presumptively lawful, sentences authorizing his con-

tinued confinement.”

The evidence at trial showed that on the night of February

10, 1981, the office of the Assyrian National Foundation in

Chicago was broken into, money was stolen, and Yoel A.

Keena, a 74-year-old man staying as a guest at the Founda-

tion, was killed by strangulation and battery with a blunt in-

strument. At the crime scene, detectives found a receipt for

traveler’s checks issued in Keena’s name. Later, the detec-

tives learned that the checks were used to purchase clothing

at a store in Chicago the next day. They questioned Derrick

Moore, the assistant sales manager of the store, and learned

that three men had come into the store at about 8 p.m. on

February 11. A man later identified as Ruben Lopez, using

Keena’s traveler’s checks, purchased a red jacket, a white

shirt with a Popeye logo, and a necktie. Moore saw the men

go into another store and emerge with more merchandise.

On February 23, Moore looked through police mug shots and

identified a photograph of Cabrera as one of the men with

| Lopez when he cashed the check. The police arrested

| Cabrera at his home without a warrant, and a search of his

| home at the time of his arrest came up dry. Cabrera waived

| his Miranda rights, however, and gave a series of contradic-

tory statements.

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With the consent of his mother and sister, the police

searched Lopez’s apartment, where a shirt with a Popeye

logo was found. They also found an identification card that

Moore (the fellow from the store) said Lopez used in cashing

the traveler’s checks. Later the red jacket was found as well.

On February 26 Cabrera made another Statement, telling

the detectives that he and Lopez had entered the F oundation

through a broken window. Lopez told Cabrera to search the

front of the building. Cabrera found a metal cash box, which

he pried open. He took the $40 which was in the box. While

Cabrera was in the front Office, Lopez went to the back,

where he found Keena. Cabrera saw Lopez strike Keena

twice. Cabrera then searched Keena’s pockets, where he

found the traveler’s checks. Lopez took the checks and

Cabrera kept the $40. After making this statement, Cabrera

consented to a search of his apartment, where the police

found two pairs of pants Lopez had bought for him. Cabrera

was convicted of murder, robbery, and burglary.

After exhausting his state court remedies, Cabrera filed

the present petition, which included the two claims before us:

whether probable cause existed for Cabrera’s warrantless ar-

rest (which led to several incriminating statements) and

whether the prosecution proved beyond a reasonable doubt

that he was guilty of burglary. The Illinois courts found that

probable cause existed for the arrest and that the evidence

Supported the burglary conviction. As we said, the district

court conditionally granted the writ. ‘i

Section 2254(d), as amended by the Antiterrorism and

Effective Death Penalty Act (AEDPA) under which this peti-

tion was brought, provides that habeas relief may not be

granted unless the state court proceeding

(1) resulted in a decision that was contrary to, or in- —

volved an unreasonable application of, clearly estab-

lished Federal law, as determined by the Supreme

Court of the United States; or

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(2) resulted in a decision that was based on an un-

reasonable determination of the facts in light of the

evidence presented in the State court proceeding.

However, Cabrera’s claim regarding his arrest faces a pre-

liminary hurdle. Fourth Amendment claims are subject to the

strictures set out in Stone v. Powell, 428 U.S. 465 (1976).

And those claims, we have recently said, are outside the

scope of the statute:

The AEDPA’s changes to § 2254(d) apply only to

cases within the scope of § 2254(a) ... and Stone is

based on an interpretation of § 2254(a) that treats

inaccurate administration of the exclusionary rule as

outside the scope of that statute.

Hampton v. Wyant, 296 F.3d 560, 563 (7™ Cir. 2002).

Stone limited the role of the federal courts in evaluating

Fourth Amendment claims of state prisoners who, relying on

the exclusionary rule, contend that allegedly unconstitution-

ally seized evidence should not have been used against them.

The Court noted that the exclusionary rule, whose purpose is

deterrence of illegal police conduct, actually hampers the

central purpose of a criminal trial, which is determining the

guilt or innocence of a defendant. The Court reasoned that in

the context of habeas petitions, the benefit of the exclusion-

ary rule is minimal compared to the substantial societal costs

of applying it. Therefore, “where the State has provided an

opportunity for full and fair litigation of a Fourth Amend-

ment claim, a state prisoner may not be granted federal ha-

beas corpus relief on the ground that evidence obtained in an

unconstitutional search or seizure was introduced at his trial.”

At 494. It sounds simple but has, in fact, caused consider-

able consternation over what exactly “full and fair” means.'

' See, e.g., Janecka v. Cockrell, 301 F.3d 316 (5th Cir. 2002);

Sanna v. Dipaolo, 265 F.3d 1 (1st Cir. 2001); Machacek v. Hof-

bauer, 213 F.3d 947 (6th Cir. 2000); Ortiz-Sandoval v. Gomez, 81

5a

The only help in Stone is a footnote to a prior case: “Cf.

Townsend v. Sain, 372 U.S. 293 (1963).” And of course the

value, generally, of “Cf.” citations is often only revealed in

the eye of the beholder.

Recently, we have waded again into the debate in an at-

tempt to clarify some of our earlier cases. Our traditional

formulation was that a petitioner had a full and fair opportu-

nity to litigate if

(1) he has clearly informed the state court of the fac-

tual basis for that claim and has argued that those

facts constitute a violation of his fourth amendment

rights and (2) the state court has carefully and thor-

oughly analyzed the facts and (3) applied the proper

constitutional case law to the facts.

Pierson v. O'Leary, 959 F.2d 1385, 1391 (7 Cir. 1992).

This test spawned many arguments, including one that the

litigation was “full and fair” only if the state court decided

the issue correctly. This erroneous interpretation of Stone

was pretty clearly sent packing by our decision last year in

Hampton. In Hampton we observed that the Pierson ap-

proach nullifies the holding of Stone and leads to collateral

relief whenever the search violates the fourth amendment.

Even an egregious error would not by itself justify habeas

relief:

[A] blunder, no matter how obvious, matters only in

conjunction with other circumstances that imply re-

fusal by the state judiciary to take seriously its obli-

gation to adjudicate claims under the fourth

amendment.

F.3d 891 (9th Cir. 1996); Willett v. Lockhart, 37 F.3d 1265 (8th

Cir. 1994); Capellan v. Riley, 975 F.2d 67 (2d Cir. 1992); Boggs v.

Bair, 892 F.2d 1193 (4th Cir. 1989); U.S. ex rel. Petillo v. New

Jersey, 562 F.2d 903 (3d Cir. 1977).

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296 F.3d at 564.

Unsatisfied by this formulation, the State wants us to take

this opportunity to further clarify the standard. The concern

is that Hampton’s focus continues to be on the quality of the

hearing. The State says that a focus on the quality of the

hearing cannot be what Stone envisioned; rather, the excep-

tion must turn on whether the State provides a mechanism

under which to litigate a Fourth Amendment claim. If it

does, Stone precludes habeas review.

Unlike the State, we do not read Hampton as implying

federal courts must examine in any significant detail the

quality of the hearing. Quality, after all, is a word which can

lead us right back to confusion as to whether the state judge

had to arrive at the right decision in order for the hearing to

pass muster. But it is true that Hampton stops just short of

what the State urges. Hampton means that even if the State

provides a mechanism under which to litigate a claim, Stone

would not block habeas review if the mechanism was in

some way a sham. For instance, Stone would not block ha-

beas review if the judge had his mind closed to the necessity

of a hearing, or was bribed, or decided, as Hampton says, that

probable cause is not required in Illinois, or was sleepwalk-

ing (another example from Hampton), or in some other obvi-

ous way subverted the hearing. Hampton does not mean,

however, that federal courts will examine whether the judge

seemed to have done some quality preparation for the hearing -

or had a perfect understanding of the fine points of search

and seizure law. Absent a subversion of the hearing process,

we will not examine whether the judge got the decision right.

But we continue to believe that we would be wrong to close

our eyes entirely to possible abuses and to say simply that

Stone applies if the State allows motions to suppress evi-

dence to be brought, never mind that a particular judge un-

dermined the process in some disturbing way. In short, “full

and fair” guarantees the right to present one’s case, but it

does not guarantee a correct result.

—— ee er

OEY 2a PSOE at

Ta

We also note in passing that Cabrera’s case is an example

of Stone’s concern with limiting the exclusionary rule to its

intended purpose of deterring police misconduct. Cabrera’s

crime was committed 22 years ago, in 1981; he was con-

victed in 1983. One could certainly argue that the deterrent

effect of overturning his 19-year-old conviction is out-

weighed by the damage to society which could flow from

reopening the suppression hearing issues which were re-

solved so long ago. Viewed from this perspective, our case

illustrates what Stone was talking about when it said that the

exclusionary rule “if applied indiscriminately ... may well

have the opposite effect of generating disrespect for the law

and administration of justice.” At 491.

Applying the Hampton standard to this case, we find that

Cabrera had a full and fair opportunity to litigate his claim

that his arrest was illegal. He raised the issue in a suppres-

sion hearing prior to trial; the Illinois Appellate Court,

Cabrera, 480 N.E.2d 1170, and the Illinois Supreme Court,

People v. Cabrera, 508 N.E.2d 708 (1987), also considered

the issue. There is no indication that these courts were care-

less of Cabrera’s right to present his claim. Cabrera contends

that the fact that the basis of the decision changed from one

court to another shows that the determinations did not meet

the test for a full and fair hearing. Particularly, he points out

that the Illinois Supreme Court assumed that the police were

aware of his criminal record, a finding he says the evidence

did not support. Whether there was anything in the record

which would ailow the inference that the police knew of his

record is subject to debate. What is clear, however, is that a

finding that there was, even if erroneous, does not support a

piercing of Stone to send a federal court sifting through the

evidence to see whether the Illinois courts were, in its view,

correct in determining that probable cause existed.

The other issue before us—whether the evidence is suffi-

cient to sustain the burglary conviction—is within the ambit

of § 2254(a) and (d), which means that habeas relief may be

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granted only if the state court proceeding resulted in a deci-

sion which was contrary to, or an unreasonable application

of, established federal law as determined by the Supreme

Court, or was based on an unreasonable determination of the

facts.

Before we launch into an analysis of this issue, we admit

some bewilderment about being asked to evaluate the bur-

glary conviction because, on the surface at least, it would

seem to be an exercise in futility. We understand that the

Supreme Court determined in Benton v. Maryland, 395 U.S.

784 (1969), that a habeas petition is not made moot by the

existence of a concurrent sentence (which would mean that

release from custody is not possible even were the petition

granted). But here, Cabrera has three other concurrent sen-

tences—two murder convictions and a robbery conviction. If

he had prevailed on his Fourth Amendment argument in this

petition, one of the murder convictions, the robbery convic-

tion, and the burglary conviction would all have been set

aside. If that had happened, only one conviction would have |

stood between him and freedom, making it reasonable to

consider the Fourth Amendment claim in the current petition.

But it is also true that if he had prevailed on his claim that his

arrest was invalid, there would be no reason to discuss the

burglary conviction separately. And now that he has failed

(before us) on the Fourth Amendment claim, it is hard to see,

in the real world, how setting aside his burglary conviction

does him any good. No doubt he has served his time. His

was a 7-year sentence imposed 20 years ago. And the possi-

| bility of realistic collateral consequences from the burglary :

a conviction are remote at best and probably, more accurately,

nonexistent.

What we find even more bewildering is what the State

| has to gain by resisting this claim. The claim is highly fact-

specific, and granting the writ in this case seems unlikely to

| change the course of Illinois law.

Be RS ey SP pe ee ee Oe ee oe eee ee en ey ee

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To explain: In Illinois, burglary is defined as knowingly

entering a building “with the intent to commit therein a fel-

ony or theft.” The information (the charging document in

Illinois) alleged that Cabrera “committed the offense of bur-

glary in that he, without authority, knowingly entered into a

building, to wit: the dwelling of Yoel Keena with the intent

to commit the offense of robbery therein.” Robbery, then, is

the felony that Cabrera is charged with intending to commit

when he entered the building. The problem is that the build-

ing was not a residential building and there was no evidence

that Cabrera and Lopez knew Keena or anyone else was liv-

ing there when they broke in. Therefore, Cabrera’s argument

is that he could not have had the intention to commit robbery

when he entered the building, and without that intention, he

cannot be guilty of burglary as it was charged. During the

trial, the prosecutor asked that the Jury be instructed that

Cabrera could be convicted of burglary if he intended to enter

the building with the intent to commit robbery or theft. The

judge refused—we can’t understand why—and the jury was

instructed that a person commits burglary when he enters a

building to commit robbery. The jury was instructed that

robbery was the taking of property from a person or the pres-

ence of another by the use of force or threatened force. The

jury convicted Cabrera of burglary (as well as robbery and

murder).

Cabrera’s constitutional claim in the present petition is

that the evidence of his intent to commit robbery was insuffi-

cient to sustain the burglary conviction. In fact, he says it

was nonexistent.

The district court granted the petition with regard to this

claim, saying that the decision of the state court was “either

“contrary to’ Jackson [v. Virginia, 443 U.S. 307 (1979)], or,

if we assume that its standard was functionally-equivalent to

Jackson’s, it was an unreasonable application of it.”

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The Jackson standard is that a petitioner is “entitled to

habeas corpus relief if it is found that upon the record evi-

dence adduced at the trial no rational trier of fact could have

found proof of guilt beyond a reasonable doubt.” At 324.

The Illinois Supreme Court said that the determination of the

jury “will not be disturbed on review unless the evidence is

so improbable as to cast reasonable doubt on the guilt of the

defendant.” 108 Ill.Dec. 397, 508 N.E.2d at 716. Is the latter

“contrary to” the former? Cabrera does not explain in any

detail how the two are meaningfully different. The Illinois

court was using the right burden of proof even though the

phrase from Jackson was not parroted. We do not see this

standard as contrary to Jackson.

So the question becomes whether the determination by

the Illinois Supreme Court that the evidence was sufficient to

sustain the burglary conviction is an unreasonable determina-

tion of the facts. The Illinois courts recognize that evidence

of intent is usually not direct. For that reason, it may be

proved circumstantially by inferences reasonably drawn from

the circumstances of the defendant’s conduct. People v.

McKinney, 631 N.E.2d 1281 (Ill. App. 1994). Those circum-

stances include “the time, place and manner of entry into the

premises, the defendant’s activity within the premises, and

any alternative explanations offered for his presence.” Peo-

ple v. Richardson, 470 N.E.2d 1024, 1027 (1984).

The application of this principle can be seen in People v.

Zuniga, 425 N.E.2d 1094 (Ill. App. 1981). The defendant

entered a church basement through a broken window. A

priest noticed the broken window and entered the church,

where he encountered the defendant. The defendant struck

the priest with a metal rod and demanded his money. Zuniga

made the argument which Cabrera makes here—that he did

not enter the church with the intent to commit robbery—and

the court found that the requisite intent could be inferred by

what happened inside the church. The issue was one for the

jury.

Pe EG ee Ra he ia - ae

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On the other hand, intent could not be inferred from the

defendant’s actions in People v. Toolate, 461 N.E.2d 987

(1984). Toolate was charged with burglary with intent to

commit a felony—in this case rape. The sole issue was

whether he intended to commit rape when he knowingly and

without authority entered a woman’s home. Because he did

nothing inside the home that pointed toward rape, the court

found the evidence insufficient:

Strange as Toolate’s behavior was, the record con-

tains no evidence whatever that he used force

against or that he intended to have sexual inter-

course with Debbie Sue. The best evidence that

Toolate did not intend to engage in sexual activity

by force is that there was no force and no threat of

force, no sexual activity and no threats, promises, or

Suggestion of any kind. The defendant had no

weapon. He did not harm or threaten to harm either

Debbie Sue or the children. There was no sexual

contact here. Presumably Debbie Sue was clad in

no more than night-clothes, but the record is silent

on this point. Whatever she was or was not wear-

ing, Toolate did not ask her to undress, and did not

attempt to undress her. He was fully clothed, in-

cluding a jacket, and he did not remove any of his

own clothing. He did not caress or fondle her, or

begin any sexual activity.

At 989.

In Cabrera’s case, on the other hand, there is unques-

tionably evidence of robbery. From that, a jury could rea-

sonably conclude that Cabrera and Lopez entered the

building with the intent to commit any number of offenses,

including robbery.

On this issue, we decide only whether the Illinois Su-

preme Court decision was based on an unreasonable determi-

nation of the facts in light of the evidence presented at trial.

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We cannot say it was. Therefore, the decision of the district

court is REVERSED and the case is REMANDED to the dis-

trict court for entry of an order denying Cabrera’s petition for

a writ of habeas corpus.

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APPENDIX B

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

UNITED STATES OF )

AMERICA ex rel. )

WILLIAM CABRERA, )

)

Petitioner, ) No.97C 2999

)

v. ) Judge Joan H. Lefkow

)

THOMAS F. PAGE, ) DOCKETED

Warden, ) Oct. 31 2001

)

Respondent. )

M UM OPINION AND RDER

Petitioner William Cabrera challenges his convictions

for murder, robbery and burglary entered in the Circuit Court

of Cook County, Illinois. The court grants the writ.

tence may be set aside. Benton y,. Maryland, 395 U.S. 784,

788-91 ( 1969). Benton’s reasoning is questionable in light of

l4a

LEGAL STANDARDS

Under 28 U.S.C. § 2254(d), a federal court may not

grant a prisoner’s habeas corpus petition unless the state

court’s adjudication of the claim either “resulted in a decision

that was contrary to, or involved an unreasonable application

of, clearly established Federal law, as determined by the Su-

preme Court of the United States” or “resulted in a decision

that was based on an unreasonable determination of the facts

in light of the evidence presented in the State Court proceed-

ing.” When considering the § 2254 petition, this court will

presume that any state court factual determinations are cor-

rect unless the petitioner rebuts the presumption by clear and

convincing evidence. 28 U.S.C. § 2254(e)(1).

Before reviewing the state court’s decision, however,

this court must determine whether the petitioner fairly pre-

sented his federal claims to the state courts, as any claim not

presented to the state’s highest court is deemed procedurally

defaulted. O'Sullivan v. Boerckel, 526 U.S. 838, 844-45

(1999); Wilson v. Briley, 243 F.3d 325, 326 (7™ Cir. 2001);

Bocian v. Godinez, 101 F.3d 465, 468 (7" Cir. 1996). A fed-

eral court may not grant habeas relief on a defaulted claim

unless the petitioner can demonstrate cause for the default

and actual prejudice as a result of the alleged violation of

federal law, or demonstrate that failure to consider the claims

will result in a fundamental miscarriage of justice. Coleman

Spencer v. Kemna, 523 U.S. 1 (1998), and the Court’s more

restrictive view of the “case or controversy” requirement.

Nevertheless, while the Court in Spencer declined to extend

“our presumption of collateral consequences (or our willing-

ness to accept hypothetical consequences),” id. at 12, to pa-

role revocations, id. at 14, it left the presumption intact with

respect to criminal convictions. See Diaz v. Duckworth, 143

F.3d 345 (7th Cir. 1998).

15a

v. Thompson, 501 U.S. 722, 750 (1991); Anderson v. Cowan,

227 F.3d 893, 899 (7" Cir. 2000).

PROCEDURAL HISTORY

On April 13, 1983, a jury convicted Petitioner of

murder, burglary and robbery. On May 5, 1983, the trial

judge imposed extended sentences for all three offenses, 60

years for murder and 14 years in prison for burglary and rob-

bery, all sentences to run concurrently. The Illinois Appel-

late Court affirmed Petitioner’s conviction on June 20, 1985,

but found the trial court erred in imposing extended term sen-

tences for the burglary and robbery convictions and short-

ened them to seven years each. People y. Cabrera, 134

Ill.App.3d 526, 480 N.E.2d 1170 (1st Dist. 1985) (“Cabrera

I”). The Illinois Supreme Court affirmed on April 16, 1987.

People v. Cabrera, 116 Ill.2d 474, 108 Ill.Dec. 397, 508

N.E.2d 708 (1987) (“Cabrera IT’). The United States Su-

preme Court denied certiorari November 2, 1987. Cabrera v.

Illinois, 484 U.S. 929 ( 1987).

Petitioner filed a pro sé post-conviction petition

which was dismissed as untimely on May 28, 1992. The IIli-

nois Appellate Court affirmed the denial of the post-

conviction petition on December 31, 1992, and the Illinois

Supreme Court denied Petitioner leave to appeal on June a»

1993. On August 14, 1992, Petitioner filed his first federal

habeas corpus petition, which was dismissed without preju-

dice for failure to exhaust state court remedies on October

29, 1993, apparently on the mistaken belief that Petitioner’s

post-conviction proceedings were still pending. The present

petition for habeas corpus was received April 24, 1997.> The

* As the Seventh Circuit held in Jones v Bertrand,

171 F.3d 499 (7th Cir. 1999), that pro se petitions filed by

incarcerated persons receive the benefit of the “mailbox rule”

of Houston v. Lack, 487 US. 266 (1988), this petition is

16a

petition was originally assigned to Judge Alesia of this court.

On January 22, 1998, it was reassigned to Judge Andersen

and on September 5, 2000 to the undersigned.

EVIDENCE AT TRIAL

Evidence at trial showed that on the night of February

10, 1981, the offices of the Assyrian National Foundation in

Chicago were broken into, money was stolen, and Yoel A.

Keena, a 74-year old man staying as a guest at the Founda-

tion, was killed as a result of strangulation and battery with a

blunt instrument.

At the crime scene detectives found a receipt for trav-

elers’ checks issued in Keena’s name. Tracing Keena’s

checks, they learned that they had been used to purchase

clothing at the “Different Circle” store in the Century Mall in

Chicago. The police questioned the assistant sales manager,

Derrick Moore, and learned that three men had come into the

store together at about 8 p.m. on February 11 and a man later

identified as Ruben Lopez purchased a red jacket, a white

shirt with a Popeye logo, and a necktie using a traveler’s

check, and an identification card bearing Lopez’ picture had

been used. Moore watched the men go together to another

store and emerge with more merchandise.

On February 23, after looking through police “mug

shots,” Moore identified a photograph of Petitioner as one of

the men present with Lopez when he cashed the check, and

the police arrested Petitioner in his home. After waiving his

Miranda rights, Petitioner then gave a series of statements,

deemed filed within the “grace period” announced by Lindh

v. Murphy, 96 F.3d 856, 866 (7th Cir. 1996), rev’d on other

grounds, 521 U.S. 320 (1997), and exempt from the one-year

limitations period of 28 U.S.C. § 2244(d) enacted by the

Anti-Terrorism and Effective Death Penalty Act (AEDPA).

first denying any knowledge of the cashing of the check or

the murder, then later telling the detectives that Lopez had

approached him with the checks, saying that he had found

Searching Lopez’s apartment with the consent of his

mother and sister, police found a white shirt with a Popeye

logo which Petitioner identified as one of the items pur-

chased with the stolen traveler’s checks. Continuing the

search, the police found an identification card that Derrick

On February 26 Petitioner made yet another even

more incriminating Statement, telling the detectives that the

night before the checks were cashed he and Lopez had en-

tered the Foundation through a broken window in the office.

tioner then went to the back room and searched the victim’s

pockets, finding the traveler’s checks. He and Lopez then

left the premises, Lopez taking the traveler’s checks and the

defendant keeping the $40 Petitioner stated that on the fol-

lowing day, Lopez told him that he was going to cash the

traveler’s checks; if Petitioner came along, Lopez would buy

something for him. Petitioner agreed, and several items of

clothing were purchased with the checks, including a red

jacket. Petitioner then signed a written statement to this ef-

fect, and signed a consent to search his apartment again,

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where the police found the two pairs of pants Lopez had

bought for Petitioner.

PETITIONER’S CLAIMS

Petitioner raises six claims: (1) Petitioner was denied

the right to trial by a fair and impartial jury because post-

conviction juror polling indicated possible dissent; (2) the

state failed to prove beyond a reasonable doubt that Peti-

tioner entered the building where the crime occurred with an

intent to commit robbery; (3) probable cause did not exist for

Petitioner’s warrantless arrest; (4) the Illinois legislature

failed to provide Petitioner with adequate and meaningful

notice of changes in Illinois’ post-conviction relief statute,

thereby denying Petitioner due process of law, and also de-

prived Petitioner of access to the courts in violation of the

First Amendment; (5) ineffective assistance of appellate

counsel; and (6) Petitioner was denied due process of the law

because the Illinois felony murder statute holds a person re-

sponsible for another’s actions without proof of the elements

of first degree murder. Respondent concedes that Petitioner

has exhausted all state court remedies, but asserts that Peti-

tioner has procedurally defaulted his fourth and sixth claims.

1. Trial By A Fair And Impartial Jury

While polling the jury after the guilty verdict, the fol-

lowing exchange occurred:

THE COURT: I’m going to ask you this question,

and I want you to pay attention to it. Was this and is

this now your verdict, Miss Cancinelli [sic]?

MS. CANCINELLI’ [sic] [juror]: Can I say what I

have to say, or do I have to give a yes, or no answer?

THE COURT: I want a yes or no answer. Was this

and is this now your verdict?

* The correct spelling of this juror’s surname is Ciancanelli.

PS att ES Te tet Te ee ee “ss

Ai in LEON ERG I GES 8 ee on OE AIRE A

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MS. CANCINELLI [sic]: I found in my own person

mind—

THE COURT: I said I want a yes or no answer. Was

this and is this now your verdict?

MS. CANCINELLI [sic]: Yes.

Cabrera I, 480 N.E.2d at 1172. Petitioner argues that

the trial court’s refusal to provide this juror with an opportu-

nity to express any possible disagreement with the verdict

calls the jury’s unanimity into question. Petitioner notes that

after the polling was complete, the trial_court denied his

counsel’s request that Ms. Ciancanelli’s statements be put on

the record, and that Ms. Ciancanelli gave a sworn Statement,

in the presence of a court reporter, stating that at the time of

the polling she had wished to recant her guilty verdict. Both

the Illinois Appellate and Supreme Courts found Petitioner’s

claim without merit.

The Illinois Appellate Court first noted that the Sixth

Amendment of the United States Constitution guarantees a

trial by an impartial jury, and that “[e]ssential to that guaran-

tee is the requirement that the verdict reached be freely ar-

rived at by each juror.” Cabrera I, 480 N.E.2d at 1172-73.

The court then distinguished this case from Cases in which

Illinois courts found that a trial judge did not properly ex-

plore a juror’s hesitant, ambivalent, or dissenting response

when polled. The court found that Ms. Ciancanelli’s re-

sponse did not indicate any hesitancy or ambivalence and

further determined that it would not second-guess the trial

court’s observations regarding the juror’s demeanor and tone

of voice. Moreover, the court held that Ms. Ciancanelli’s

later statement was neither admissible nor reviewable by the

court, as it went to the deliberation process and was taken

after the verdict had been read and the jury had already been

polled and discharged. The Illinois Supreme Court agreed.

20a

The Sixth Amendment, as applied to the states

through the Fourteenth Amendment, guarantees that “[i]n all

criminal prosecutions, the accused shall enjoy the right to a

speedy and public trial, by an impartial jury....” Morgan v.

Illinois, 504 U.S. 719, 726-27 (1992). See also Sullivan v.

Louisiana, 508 U.S. 275, 277 (“The Sixth Amendment pro-

vides”); Porter v. Gramley, 112 F.3d 1308, 1315 7" Cir.

1997).

Petitioner does not argue that the state court decisions

were contrary to, or involved an unreasonable application, of

clearly established federal law. Instead, Petitioner argues

that “[t]he refusal of the trial court to provide juror, Ms. Ci-

ancanelli, with an opportunity to express any possible dis-

agreement she had with the verdict’s [sic] raises doubt as to

the unanimity of the jury” and that “[t]he Appellate Court, in

holding that the juror’s replies did not indicate ambivalence

or hesitancy in her answer, misconstrued the facts of the case

at bar.” (Pet. at 29.) Petitioner therefore appears to claim

that the state court decisions were based on an unreasonable

determination of the facts presented. The court disagrees. At

most, the colloquy between the trial court and Ms. Cianca-

nelli indicated that she wanted to further explain why she de-

cided on her verdict, not that her verdict was erroneous.

With respect to Ms. Ciancanelli’s later statement, the

state court ruling was completely consistent with federal law

as determined by the Supreme Court. The Supreme Court

has stated that by the beginning of the twentieth century,

there existed a firmly established common-law rule that

“flatly prohibited the admission of juror testimony to im-

peach a jury verdict” and that unless there was evidence of

outside influence on the jury, juror testimony impeaching a

verdict is inadmissible. Tanner v. United States, 483 U.S.

107, 117 (1987) (citing, among other cases, McDonald v.

Pless, 238 U.S. 264, 267 (1915)). Cf. Fed. R. Evid. 606(b).

Petitioner does not argue that Ms. Ciancanelli’s proffered

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2la

recantation falls into the extraneous influence exception. Pe-

titioner is not entitled to habeas corpus relief based on his

first claim.

2. Failure To Prove Burglary Beyond A Reasonable

Doubt

Petitioner was found guilty by a jury of murder, bur-

glary, and robbery. The evidence at trial showed that Lopez,

rather than Petitioner, actually killed Keena. Nevertheless,

under Illinois law, “a person is legally accountable for the

conduct of another when ... either before or during the com-

mission of an offense, and with the intent to promote or fa-

cilitate such commission, he solicits, aids, abets, agrees or

attempts to aid, such other person in the planning or commis-

sion of the offense.” Ill.Rev.Stat.1981, ch. 38, par. 5-2©

(now codified at 720 ILCS 5/5-2©). A reasonable jury could

have found Petitioner accountable for Lopez’s acts. Peti-

tioner did not challenge the sufficiency of the evidence with

respect to his convictions for murder and robbery.

authority he knowingly enters ... a building ... with intent to

commit therein a felony or theft.” Cabrera I, 480 N.E.2d at

1175 (quoting Ill. Rev. Stat. 1981, ch. 38, par. 19-1(a)). The

evidence showed that Petitioner had entered a building with-

out authorization and his intent to commit a theft could rea-

sonably be inferred from this, absent another explanation for

his presence there.

Nevertheless, Petitioner was not charged with enter-

ing a building with intent to commit a theft; he was charged

with entering a building with the intent to commit robbery.

The information charged that Petitioner “committed the of-

fense of burglary in that he, without authority, knowingly

entered into a building, to wit: the dwelling of Yoel Keena

22a

with the intent <o commit the offense of robbery therein.” Tr.

2237.

Since the Foundation was not a residential building,

and there was no evidence that Petitioner or Lopez knew

Keena was living there, Petitioner could not have had the in-

tention to commit robbery when he entered the building. Be-

cause the prosecution’s case was built on Petitioner’s

statements to the police, there appears to be no reason why

the state could not have initially charged Petitioner with the

intent to commit theft, or amended the information prior to

trial. Only in the jury instruction conference did the prosecu-

tion belatedly recognize that the charge did not fit the evi-

dence against Petitioner. The prosecutor asked that the jury

be instructed that it could convict Petitioner of burglary if

they found he entered the building with the intent to commit

robbery or theft. Petitioner’s counsel objected, and the trial

judge refused the prosecution’s instruction. Distinguishing

cases in which the defendant had not been surprised by a

variation between the acts charged in the indictment and jury

instructions based upon evidence adduced at trial, the court

stated that “you [the prosecution] are interjecting the offense

of theft. That has not even been mentioned. It was not men-

tioned in opening statements.” Tr. at 1961. Commenting

that “it is clear to this Court that whoever made up this

charge, apparently, didn’t know what they were doing,” the

trial judge found it “extremely prejudicial” to include intent

to commit theft in the instruction. Tr. at 1362.°

> In this the trial judge may have erred. Under Illinois

law, jury instructions may depart from the charging docu-

ment to correspond to the evidence “as long as the variance

does not mislead the defendant in the presentation of his de-

fense, does not expose him to double jeopardy, and as long as

there was ample evidence presented to the jury to permit it to

find the defendant guilty of the charged crime beyond a rea-

23a

The jury was accordingly instructed: “a person com-

mits the offense of burglary when he enters a building when

he, without authority, knowingly enters a building with intent

to commit therein the offense of robbery.” Tr. at 2128. Peti-

tioner was separately charged with robbery, and the jury in-

structions correctly defined robbery as “[taking] property

from the person or presence of another by the use of force or

by threatening the imminent use of force.” Tr. at 2127.

These instructions were recapitulated at Tr. 2130-31, in

which the elements of burglary and robbery were set forth.

The burglary instruction again stated that an element of bur-

glary was the intent to commit robbery. Despite the lack of

evidence of Petitioner’s intent to commit robbery at the time

he entered the building, the jury convicted him of burglary

anyway.

On appeal, Petitioner argued that his conviction for

burglary should be reversed because there was no evidence

showing that either he or Lopez had reason to know that any-

one was in the building when they entered it, hence no evi-

dence of intent to commit robbery, the felony upon which the

burglary charge was predicated. In response, the state feebly

sought to find supporting evidence in the record, arguing that

the violence of the assault supported an inference of an origi-

sonable doubt.” Jenkins v. Nelson, 157 F.3d 485, 498 (7th

Cir. 1998), cert. denied, 527 U.S. 1039 (1999); citing, inter

alia, People v. Foster, 103 Ill.App.3d 372, 431 N.E.2d 430

(1982), and People v. McEvoy, 33 Ill.App.3d 409, 337

N.E.2d 437 (1975). Here Petitioner did not take the stand,

and his intent at the time he entered the Foundation was pri-

marily to be inferred from his statements to police. His coun-

_ Sel attempted to argue that his statements were coerced and

unreliable. It is doubtful that charging him with the intent to

commit theft, rather than robbery, would have affected his

defense.

es

24a

nal intent to rob, and noting that Petitioner had lived a short

distance away from the Assyrian National Foundation. Ans.

Exh. (e) at 41-44. Alternatively, the state argued that Peti-

tioner had not been prejudiced, mischaracterizing Petitioner’s

argument as an attack on the charging information.

The Illinois Appellate Court either misunderstood or

ignored Petitioner’s argument. The court stated that Peti-

tioner’s intent to commit a theft could be inferred from the

evidence, ignoring the fact that this was not what the jury

was instructed to find. Cabrera I, 480 N.E.2d at 1175. The

Illinois Supreme Court, in contrast, recognized that Petitioner

had been specifically charged with unauthorized entry with

intent to commit robbery, but stated that “it was the province

of the jury to determine the question of intent, and that de-

termination will not be disturbed on review unless the evi-

dence is so improbable as to cast reasonable doubt on the

guilt of the defendant.” Cabrera II, 508 N.E.2d at 716.

The Illinois Supreme Court followed People v.

Zuniga, 99 Ill.App.3d 396, 425 N.E.2d 1094 (1st Dist. 1981)

The facts of Zuniga were indeed similar, and equally prob-

lematic. The defendant had broken into a church basement,

and a priest saw evidence of the break-in and went into the

church to investigate. When the priest confronted the defen-

dant, the defendant attempted to rob him. The defendant,

like Petitioner, was charged with breaking into the church

intending to commit robbery. (The opinion in Zuniga does

not state whether the jury instructions followed the charge;

presumably they did.) The defendant’s conviction was af-

firmed, the court likewise stating that it was for the jury to

determine the defendant’s intent. The court did not explain

how the jury could have found that the defendant broke into

an unoccupied church basement with the intent to commit

robbery.

25a

In each case the jury ignored their instructions in fa-

vor of their common sense. In common understanding, a

sonable doubt on the guilt of the defendant ” Cabrera II, 508

N.E.2d at 716. This is not equivalent to the Clearly estab-

lished constitutional Standard, “whether, after viewing the

evidence in the light most favorable to the Prosecution, any

of the crime beyond a reasonable doubt.” Jackson vy. Vir-

ginia, 443 U.S. 307, 319 (1979). If specific intent is an ele-

ment of the crime, as it is of burglary, and there is no

thing “improbable” about the evidence presented. A Teason-

able application of the Jackson test requires some discussion

of how the evidence, viewed in the light most favorable to

26a

the prosecution, supports the jury’s finding as to the elements

of the crime. The conclusion that Petitioner was properly

convicted of burglary is either “contrary to” Jackson because

the Illinois Supreme Court applied a different standard, or, if

we assume that its standard was functionally equivalent to

Jackson’ s, it was an unreasonable application of it.

In its answer to the habeas petition, the state takes the

position of the Illinois Appellate Court, that because the jury

could properly have found Petitioner entered the Foundation

with the intent to commit a theft, the Jackson test is met.

This is not the rationale of the Illinois Supreme Court, how-

ever, nor could it be in light of prior cases.

In People v. Toolate, 101 I1l.2d 301, 461 N.E.2d 987

(1984), the Illinois Supreme Court reversed a conviction for

burglary where the defendant had broken into a house, went

to the complaining witness’s bedroom and meved some fur-

niture around. When the complainant awoke and saw him,

she was able to chase him out of the house without resis-

tance. The defendant was charged and convicted of residen-

tial burglary with intent to commit rape. The [Illinois

Supreme Court reversed the conviction because there was no

evidence that the defendant intended to commit rape. The

court acknowledged that in the absence of inconsistent cir-

cumstances, intent to commit theft can be inferred from proof

of unlawful breaking and entering. Nevertheless, proof of

breaking and entering was not sufficient to establish the in-

tent to commit another felony; if so, the requirement of spe-

cific intent to commit that other felony would be

meaningless. Jd., 461 N.E.2d at 308. The court concluded:

The defendant in this case was not charged with bur-

glary with the intent to commit theft, and cannot,

therefore, be convicted of that offense. Because the

State has failed to prove beyond a reasonable doubt .

that Toolate entered the dwelling with the intent to

commit a rape, the only offense with which he was

27a

charged, the conviction and the appellate court’s af-

ce are reversed.

Petitioner’s case recognized that his burglary conviction de-

pended on proof of his intent to commit robbery, and could

tended to commit robbery at the time he entered the building.

Petitioner’s burglary conviction accordingly cannot stand.

3. Probable Cause For Arrest

Petitioner contends here, as he contended before the

Stone v. Powell, 428 U.S. 465, 482 (1976), held that

“where the State has provided an opportunity for full and fair

28a

a petitioner has received it.. Virtually the only elucidation

was footnote 36, which appeared with the recapitulation of

the language quoted above. That footnote read, in full: “Cf

Townsend v. Sain, 372 U.S. 293, 83 S.Ct. 745, 9 L.Ed.2d 770

(1963).” Stone, 428 U.S. at 494 n. 36.

Townsend addressed whether a federal district court

must hold an evidentiary hearing to determine whether a con-

fession had been coerced in violation of the Fifth Amend-

ment. The Court stated:

Where the facts are in dispute, the federal court in ha-

beas corpus must hold an evidentiary hearing if the

habeas applicant did not receive a full and fair evi-

dentiary hearing in a state court, either at the time of

the trial or in a collateral proceeding. In other words

a federal evidentiary hearing is required unless the

state-court trier of fact has after a full hearing reliably

found the relevant facts.

Townsend, 372 U.S. at 312-13 (footnote omitted).

While declining to “overly particularize” this test, the court

continued:

We hold that a federal court must grant an evidentiary

hearing to a habeas applican: under the following cir-

cumstances: If (1) the merits of the factual dispute

were not resolved in the state hearing; (2) the state

factual determination is not fairly supported by the

record as a whole; (3) the fact- finding procedure em-

ployed by the state court was not to afford a

full and fair hearing; (4) there is a tial allega-

tion of newly discovered evidence; (5) the material

facts were not adequately developed at the state-court

hearing; or (6) for any reason it appears that the state

trier of fact did not afford the habeas applicant a full

Id. at 313.

30a

finding of probable cause for Petitioner’s arrest is supported

by the record, mindful of the requirement “that a state court’s

factual determinations are due a ‘high deference.” Weber,

15 F.3d at 694 (citing Sumner v. Mata, 455 U.S. 591, 598

(1982)).’ If not, Stone v. Powell does not bar consideration of

this claim.

At the time of Petitioner’s trial and appeal, as today, it

was clearly established that

preme Court recognized in Stone as a very narrow ex-

ception to the general rule that a habeas petitioner

may not bring Fourth Amendment claims. We have

consistently held that a claim is Stone-barred if the

petitioner simply argues that the state court made a

mistake in applying Fourth Amendment law.... In-

stead, habeas review of Fourth Amendment claims is

reserved for instances where the state court made an

egregious error (e.g., failed to apply Supreme Court

precedent directly on point after the argument was

clearly presented), thus effectively depriving the peti-

tioner of the ability to vindicate his federal rights in

state court. This is consistent with the understanding

of “opportunity for full and fair litigation” adopted by

several courts.... The Weber standard is not more than

a restatement of the narrow exception set out in Stone,

and we therefore decline Indiana’s request to revisit

our definition of “opportunity for full and fair litiga-

tion.”

’ Weber was decided prior to the enactment of the Antiter-

rorism and Effective Death penalty Act of 1996. Congress

has since made explicit Weber’s “high deference” standard

by stating that factual findings “shall be presumed to be cor-

rect,” and “[t]he applicant shall have the burden of rebutting

the presumption of correctness by clear and convincing evi-

dence.” 28 U.S.C. § 2254(e)(1).

3la

(w]hether [an] arrest was constitutionally valid de-

pends in turn upon whether, at the moment the arrest

was made, the officers had probable cause to make

it—whether at that moment the facts and circum-

Stances within their knowledge and of which they

had reasonably trustworthy information were suffi-

cient to warrant a prudent man in believing that the

petitioner had committed or was committing an of-

fense.

Beck v. Ohio, 379 U.S. 89, 91 (1964); see also Hunter y.

Bryant, 502 U.S. 224, 228 (1991) (same). It was also estab-

lished that probable cause is not transferred by association—

that simply being in the company of a person suspected of

crime is not probable cause to search or arrest. See Ybarra v.

Illinois, 444 U.S. 85, 91 (1979) (“a person’s mere propin-

quity to others independently Suspected of criminal activity

does not, without more, give rise to probable cause to search

that person”); Sibron v. New York, 392 U.S. 40, 62-63 (1968)

(no probable cause to believe individual seen talking to a

number of narcotics addicts was engaged in drug trafficking).

Lopez’s negotiation of checks stolen from the victim clearly

established probable cause as to him, but merely being seen

in Lopez’s company would not establish probable cause as to

Petitioner.

The Illinois Supreme Court in Cabrera II implicitly

conceded this rule of law, but believed that the record

showed something more: that the arresting officers were

aware of Petitioner’s recent burglary convictions.® If the po-

lice had known Petitioner was @ proven burglar, his follow-

, According to publicly available records kept by the Illinois

ent of Corrections, Petitioner was on probation fol-

lowing convictions for burglary and attempted burglary at the

time of the offenses in question.

32a

an inference that he had something to do with the theft. But

in a strong dissent Justice Seymour Simon pointed out that

nothing in the record showed that the police were aware of

Petitioner’s criminal history at the time they went to his

home to arrest him. Because the dispute is critical, we will

recapitulate it in detail.

In determining that probable cause existed for Peti-

tioner’s arrest, the Illinois Supreme Court noted the follow-

ing:

The defendant seriously misstates the issue

when he says it is simply whether the defendant’s be-

ing with a person who purchased merchandise with a

stolen traveler’s check gave probable cause to arrest.

It seems clear that the police had other significant in-

formation from which probable cause to arrest was

reasonably inferred.

Derrick Moore, from the “Different Circle”

store, looked through approximately 200 police pho-

tographs before identifying a photograph of the de-

fendant as one of the men who was present at the time

the purchase was made with the stolen traveler’s

check. Too, Moore told the detectives that the defen-

dant had a large scar on his neck; a scar that was not

visible in the photograph. At trial prior to identifying

the defendant’s picture, Moore testified that, after

speaking with the investigating officers, he had gone

to a police station and “looked through pictures, mug

shots.” The defendant’s attorney moved for a mistrial

on the ground that the reference to “mug shots” was

prejudicial. The motion was denied. Later when the

prosecution was moving for the admission of various

exhibits, including the police photograph of the de-

fendant that Moore had picked out, Mr. Lyster, the

defendant’s attorney, objected to the photograph’s

admission. The record reads:

“MR. RAAB [Prosecutor]: People’s Exhibit

Number 43 for identification, having been identi-

fied as a colored photograph of the defendant,

33a

William Cabrera, being identified by Derrick

Moore at Area 6 Violent Crimes vicinity on the

23" of February, 1981; and also having been

identified by Detective Thomas Sappanos as the

photograph that was in fact identified by Derrick

Moore on that day and at that place.

MR. LYSTER: Your Honor, I will object to

that. That is the mug shot. Of course, it has his

breastplate in front of him, indicating his RIWR

number on January 21, 1980.

I think, obviously, it would be prejudicial for it to

be admitted, even if it is altered or modified, or

clipped, because you would further focus atten-

tion on the bottom photo by even covering it. In

other words, if we covered the bottom of it with

any kind of piece of paper. Obviously, you don’t

have to be—you know, all you have to do is be a

Sam Spade to know what this Photo is.” (Empha-

sis added.)

The trial court, after telling the prosecutor,

who was arguing for admission of the photograph,

that the jury would be shown whatever exhibits were

Detective Thomas Sappanos and Thomas

Keane were the principal officers in the murder inves-

tigation, but at least two other officers were assigned

to the investigation, Sappanos testified. Sappanos

testified, too, that he prepared about four investigative

reports prior to the defendant’s arrest on February 24

and that he made a specific report on the identifica-

tion of the defendant before he and Keane arrested

him at 5523 North Kenmore Avenue in Chicago. It is

apparent that the police, from the defendant’s mug

34a

shot with his name and the police identification num-

ber, were able to examine the Chicago police depart-

ment reports regarding the defendant and could

ascertain his record and address. Thus, they were

able to arrest him at his apartment at 5523 North

Kenmore Avenue in Chicago. As stated, Detective

Sappanos testified that he prepared a report on the

identification of the defendant before his arrest. He

certainly would have examined the Chicago pence

department records of the defendant.

At the time of the defendant’s arrest, it must

be reasonably concluded that the detectives had

knowledge of the defendant’s entering and leaving

the store with Lopez, the man who cashed the murder

victim’s check; that his Chicago police department

mug shot, with his police identification number, had

been identified by Moore; and that from the mug shot

they ascertained the information appearing in the

—— police department records regarding the de-

endant.

That information included a record of the de-

fendant’s convictions for burglary and attempted bur-

glary. At the hearing on the defendant’s motion to

quash arrest and suppress evidence the State intro-

duced copies of these convictions for burglary and at-

tempted burglary.

Other information in the police department re-

cords which was available through the defendant’s

so-called “rap sheet” or criminal record appears in the

record before us in the presentence investigation re-

port. It discloses other burglary arrests, including one

on January 21, 1980, which date the defendant’s at-

torney said appeared on the defendant’s mug shot to-

gether with his police department identification

number

Cabrera II, 508 N.E.2d at 712-713 (emphasis in original).

The problem, as Justice Simon pointed out, is that no

one testified that the police ever looked up Petitioner’s police

35a

record. Because Sappanos prepared investigative reports, the

majority opinion Stated, he “certainly would have examined

the Chicago police department records.” But Sappanos did

not testify that he did, nor even that it was standard procedure

to do so.

Justice Simon pointed out that there is actually some

evidence in the record Suggesting that the police did not con-

the last entry the police officers would have seen prior to Pe-

titioner’s arrest showed him living at 1230 W. Argyle, not

553 North Kenmore where he was arrested. Cabrera IT, 508

N.E.2d at 713. Of course, this does not preclude the possibil-

ity that the officers reviewed Petitioner’s criminal history and

obtained his current address from another source. But the

fact remains that nothing in the record indicates that the ar-

resting officers knew of Petitioner’s criminal history when he

was arrested.

Petitioner. Jd. at 718. This is consistent with the State’s

brief in the Illinois Supreme Court, which relied solely on the

supposed to have been aware of it. The State’s primary ar-

EES'S'SCS'S be w "rs

36a

We respectfully disagree with the Illinois Supreme

Court majority and find that the existence of probable cause

is not supported by the record. The “record” cannot be un-

derstood to include plausible assumptions. It might be plau-

sible to assume that a burglar with an extensive record would

be known to every member of a small-town police depart-

ment, but for a court to make that kind of assumption in the

absence of testimony would derogate the Fourth Amendment.

Because we find that the finding of probable cause is

not supported by the record, Stone v. Powell does not bar

consideration of Petitioner’s third claim, and this conclusion

also requires that the petition be granted. Although the IIli-

nois Supreme Court correctly identified the governing legal

rule as set forth in Beck, it applied it unreasonably to the

facts. See Williams v. Taylor, 529 U.S. 362, 407-408 (2000).

The record shows only that the arresting officers knew that

Petitioner had been identified by a store clerk as having ac-

companied someone who had purchased items with the vic-

tim’s traveler’s checks. This evidence is even less than in

Beck, where the Supreme Court stated:

The record is meager, consisting only of the testi-

mony of one of the arresting officers, given at the hearing on

the motion to suppress. As to the officer’s own knowledge

of the petitioner before the arrest, the record shows no more

than that the officer “had a police picture of him and knew

what he looked like,” and that the officer knew that the peti-

tioner had “a record in connection with clearing house and

scheme of chance.” Beyond that, the officer testified only

that he had “information” that he had “heard reports,” that

“someone specifically did relate that information,” and that

he “knew who that person was.” There is nowhere in the re-

nois Supreme Court reached the merits, that argument is

irrelevant in this court.

37a

_ cord any indication of what “information” or “reports” the

officer had received, or, beyond what has been set Out above,

from what source the “information” and “reports” had

come....

Beck, 379 U.S. at 94. The Court concluded that “[njo

decision of this Court has upheld the constitutional validity

of a warrantless arrest with Support so scant as this record

Presents.” Jd. 379 U.S. at 95. As it was established that

simply being in the company of one who is a Suspect. does

4. Post-Conviction Relief

Petitioner’s fourth claim takes issue with the dis-

missal of his petition for post-conviction relief. First, Peti-

tioner argues that the Illinois legislature failed to provide him

10 “At the time of Petitioner’s conviction the limita-

tions provision of the Post-Conviction Act, Ill.Rev.St. ch. 38

{ 122-1(c), read as follows:

38a

timely post-conviction petition was the result of being denied

access to a law library “near the time of the filing deadline,”

Pet. at 47, and because the Department of Corrections twice

confiscated the papers of a “law clerk” assisting him with the

petition, denying him his First Amendment right of access to

the courts. Petitioner concludes by stating: “Based upon pe-

titioner’s inability to obtain state review of his post convic-

tion petition as a result of ‘direct arbitrary state’ activity, this

Court must hear the issues raised in petitioner’s post-

conviction petition.” (Pet. at 48.)

These are not in themselves claims for habeas relief,

since they have nothing to do with the lawfulness of Peti-

tioner’s conviction or sentence, but are offered as reasons for

this court to consider the claims contained in Petitioner’s un-

timely post-conviction petition.'’ Accepting these allegations

as true, they do not permit the court to review the defaulted

claims.

alleges facts showing that the delay was not due to his

culpable negligence.

Effective January 1, 1984, the 20-year period from date of

conviction was shortened to 10 years. P.A. 86-1210, ap-

proved Aug. 30, 1990, reduced the limitations period to 3

years, effective January 2, 1992.

'! Petitioner asserted the following claims in his post-

conviction petition: (1) ineffective assistance of trial coun-

sel; (2) the trial court improperly considered a factor in ag-

gravation when imposing an extended sentence; (3)

ineffective assistance of appellate counsel; (4) petitioner was

convicted based on evidence seized in an unlawful arrest; and

(5) the trial court did not sentence petitioner with the objec-

tive of restoring him to useful citizenship.

39a

If state courts refuse to review a petitioner’s claims as

@ consequence of the petitioner’s failure to comply with a

State procedural rule that is independent of the federal ques-

tion and adequate to Support the judgment, those claims are

procedurally defaulted. Coleman y. Thompson, 501 U.S.

722, 729 (1991). Failure to comply with the limitations pe-

riod of the Illinois Post Conviction Act is such an independ-

ent and adequate State ground. Barksdale y. Lane, 957 F.2d

379, 382 (7™ Cir. 1992), cert. denied sub nom. Barksdale vy.

Peters, 506 U.S. 890 (1992). A federal court may not review

a defaulted claim unless the petitioner can demonstrate cause

for the default and actual prejudice as a result of the alleged

violation of federal law, or demonstrate that failure to con-

sider the claims will result in a fundamental miscarriage of

justice. Coleman, 501 US. at 750. A “fundamental miscar-

riage of justice” is not the violation of a constitutional rule,

but the probability that an innocent person has been con-

victed. As it requires persuasive new evidence of actual in-

nocence, it is inapplicable here. Schlup v. Delo, 513 U.S.

298, 316 (1995). Petitioner has not show acceptable cause

for his default.

approved August 30, 1990, but only became effective Janu-

ary 1, 1992. Petitioner cannot argue that the statute was un-

constitutionally retroactive. After August 30, 1990,

1998).

The Seventh Circuit’s opinion in Barksdale, 957 F.2d

at 382-83, addressed the 1984 reduction of the limitations

40a

period from twenty years to ten, holding that it did not con-

stitute “cause” excusing the petitioner’s failure to file a

timely post-conviction petition. That holding is dispositive

here.

Petitioner cannot avoid default by stepping back and

alleging that he had good cause for failing to file on time. As

Barksdale pointed out, the Illinois Post-Conviction Act per-

mits a petitioner to avoid the limitations bar if the petitioner

“alleges facts showing that the delay was not due to his cul-

pable negligence.” In finding Petitioner’s post-conviction

petition untimely, the Illinois courts necessarily found that

Petitioner had not made allegations that, if true; would estab-

lish his lack of culpable negligence. This finding is itself an

independent determination under state law and binding on

this court. Barksdale, 957 F.2d at 383-84; see also Starks v.

Welborn, No. 99 C 1117, 1999 WL 674754 (N.D. Ill. 1999)

(Castillo, J.) at *4.

Further, “cause” “must be something external to the

petitioner, something that cannot fairly be attributed to him.”

Coleman, 501 U.S. at 753. Because there is no right to coun-

sel in post-conviction proceedings, the failings of a post-

conviction attorney are attributed to the petitioner; an attor-

ney’s mistakes or blunders in failing to file on time do not

constitute “cause.” Coleman, 501 U.S. at 752-53. Neither do

the mistakes of a prison law clerk. United States ex rel. Wil-

liams v. Cowan, No. 98 C 3204, 2001 WL 800085 (Grady,

J.).

Petitioner alleges that acts of the State, in keeping

him from the law library for a time and confiscating papers

used by the inmate law clerk, constitute an independent con-

stitutional violation and so should not be subject to the same

rule. But Petitioner does not allege that either action was in-

tended to prevent his access to the court, and accidental dep-

rivations that result in interference with an inmate’s access to

RENNER siete toc aaeet

4la

the courts are not constitutional violations. See Kincaid v.

Vail, 969 F.2d 594, 602 (7" Cir. 1992), cert. denied sub nom.

Sceifers v. Vail, 506 U.S. 1062 (*993). In the absence of a

showing of intentional interferen ‘¢ with a petitioner’s access

to the courts, or a showing that it was impossible (not merely

more difficult) for the petitioner to have prepared the petition

without state assistance (as in the case of a petitioner who

access to the law library for a Significant amount of time. Cf

Tellez v. Gilmore, No. 97 C 3228, 1998 WL 89336 (N.D. Ill.

period, Petitioner had slightly more than four years to prepare

and file his post-conviction petition, and cannot claim the

State prevented him from filing.

5. Ineffective Assistance of Appellate Counsel

Petitioner raises as a Claim for habeas relief the inef-

appellate counsel. Like the forego-

appeal. Petitioner raises at least one such claim. In his con-

curring opinion in Cabrera II, 508 N.E.2d at 717, Chief Jus-

tice Clark noted that Petitioner’s conviction was tainted by a

separate Fourth Amendment violation: apart from the al-

leged lack of probable cause, petitioner’s arrest in his home

without a warrant was unlawful under Payton v. New York,

445 U.S. 573 (1980). Chief Justice Clark concurred in the

42a

court’s opinion, however, because the Payton issue had been

waived by failing to raise it on appeal.

in his post-conviction petition, Petitioner claimed that

failing to raise the issue amounted to ineffective assistance of

appellate counsel. Had the issue of ineffective assistance of

appellate counsel been preserved, Petitioner could have

raised it in this court, and a finding that his appellate counsel

had been ineffective would have permitted this court to reach

the underlying Payton claim. However, our finding that the

claims Petitioner sought to raise in his post-conviction peti-

tion are defaulted dooms this claim as well.

6. The Illinois Accountability Statute

Petitioner argues that the Illinois statutory provision

by which a person may be held accountable for the acts of

another is unconstitutional. That provision, formerly II.

Rev. Stat. 1981, ch. 38, par. 5-2©, now codified at 720 ILCS

5/5-2©, states that “[a] person is legally accountable for the

conduct of another when.... © 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

atiempts to aid, such other person in the planning or commis-

sion of the offense.” Illinois decisions have interpreted this

to mean that a person who joins with another in a “common

design” to commit an unlawful act is accountable for any

crimes that occur in furtherance of that design, whether spe-

cifically intended by the co-participant or not. See People v.

Cooper, 194 Ill.2d 419, 743 N.E.2d 32 (2000); People v.

Taylor, 164 Ill.2d 131, 646 N.E.2d 567 (1995); see also

Brumley v. DeTella, 83 F.3d 856, 863 (7" Cir. 1996).

Petitioner cites no authority for the proposition that

the Illinois accountability statute is unconstitutional. While

the Constitution requires the state to prove a defendant guilty

beyond a reasonable doubt of all elements of a criminal of-

fense, defining the offense is a matter of state law for state-

ee

43a

legislatures and state courts. Burris v. Farley, 51 F.3d 655,

659-60 (7 Cir. 1995). The state produced evidence from

which the jury could find that Lopez committed murder and

that Petitioner had the requisite relationship to him to be held

responsible for it. In any event, this claim was never pre-

sented to the Illinois courts and is accordingly defaulted.

CONCLUSION

All of Petitioner’s claims are defaulted, meritless, or

both, except his claim that the police lacked probable cause

for his arrest and his claim that the jury could not properly

have found him guilty beyond a reasonable doubt of bur-

glary. These are “errors that undermine confidence in the

sentences authorizing his continued confinement. Peti-

tioner’s 1983 convictions for murder, robbery and burglary

are declared to be void and of no effect unless the State of

Illinois retries petitioner within 120 days of this order.

IT IS SO ORDERED

Date: October 30, 2001

Enter: /s/Jo . Lefkow

———/s/Joan H. Lefkow

an JOAN HUMPHREY LEFKOW

United States District Judge

44a

APPENDIX C

Supreme Court of Illinois.

The PEOPLE of the State of Illinois, Appellee,

v.

William CABRERA, Appellant.

No. 62357.

April 16, 1987.

Rehearing Denied June 5, 1987.

Justice WARD delivered the opinion of the court:

The defendant, William Cabrera, was found guilty of

murder, robbery and burglary by a jury in the circuit court of

Cook County (Ill.Rev.Stat.1981, ch. 38, pars. 9-1(a\(1), 18-1,

19-1) and was sentenced to a term of 60 years for murder and

to extended-term concurrent sentences of 14 years for bur-

glary and robbery. The appellate court affirmed the convic-

tions but reduced the defendant’s sentence for burglary and

robbery to seven years. (134 Ill_App.3d 526, 89 Ill. Dec. 427,

480 N.E.2d 1170.) We granted the defendant’s petition for

leave to appeal (103 Ill.2d R. 315).

On this appeal the defendant claims (1) the trial court

erred in finding that the police had probable cause to arrest

him; (2) he was denied the right to be tried by a fair and im-

partial jury; (3) the State failed to prove him guilty of bur-

glary beyond a reasonable doubt; and (4) the trial court

abused discretion in imposing a 60-year extended-term sen-

tence.

On February 12, 1981, Yoel A. Keena, a 74-year-old

man, was found dead in a back room of the Assyrian Na-

tional Foundation (the Foundation) at 1475 West Balmoral

Street in Chicago, where he had been temporarily living. In-

vestigating Detective Thomas Sappanos found that entry had

cash box broken into. Sappanos also discovered a receipt for

Thomas Cook traveler’s checks with the name of the victim;

however, no checks were found. The next day, February 13,

Sappanos spoke with Dr. Shaku Teas concerning the results

of the autopsy she performed on the victim and was informed

that the cause of death was “[s]trangulation and subdural

hemmorrhage [, bleeding underneath the fibrous membrane

forming the outermost layer covering of the brain,] due to

blunt trauma.”

Learning that some of the victim’s traveler’s checks

had been used to make purchases of clothing, Detectives

pez) in the purchase of a red jacket, a white shirt with a Pop-

the three men leaving that store carrying two shopping bags,

one with the name “Different Circle,” the other with “Satur-

On February 23 Moore, after looking through ap-

Proximately 200 police photographs or “mug shots” at the

Chicago Area 6 police station, identified a photograph of the

as picture of one of the men present in the store

tite

46a

at the cashing of the check. Moore also told the detectives

that the defendant had “a large scar going from his ear down

in a diagonal line towards his neck” which was not shown in

the photograph. That evening, Sappanos and Keane went to

the defendant’s apartment at 5523 North Kenmore in Chi-

cago, but he was not there.

The next day at about 5:30 p.m., Sappanos received a

telephone call at the police station from a clerk-receptionist

at the defendant’s apartment house, informing him that the

defendant had just returned. Sappanos and Keane, without

an arrest or search warrant, immediately went to the defen-

dant’s apartment, knocked at his. door and identified them-

selves. The defendant, wearing only gym shorts and looking

as though he had just taken a bath or a shower, opened the

door. When he did, the detectives observed the scar on his

neck and informed him that he was under arrest. They gave

him the Miranda rights and told him that they “were investi-

gating a homicide, [and] the fact that he had been identified

as a person being involved in cashing the [traveler’s] checks

from the homicide.” Upon the defendant’s consenting, the

detectives made a cursory search of the apartment; nothing

was taken. The defendant later claimed that the officers

unlawfully entered his apartment, came into his bathroom

while he was taking a bath, and told him he was under arrest

for murder and burglary. While he was dressing, the detec-

tives searched his apartment without his consent, taking three

photos of his girlfriend, the title to his car, his driver’s li-

cense, and his social security card. The detectives denied

these allegations.

The defendant was then taken to the Area 6 police

station, where, at approximately 6:30 p.m., he was placed in

an interview room. In the room, Detective Keane again in-

formed the defendant of his Miranda rights. Sappanos then

questioned the defendant about the stolen traveler’s checks

and the murder, but the defendant denied knowledge of either

47a

incident. The detectives then left the defendant in the inter-

view room, returning at approximately 9 p.m. with a sand-

48a

ture of Lopez had been affixed, that was later identified by

Derrick Moore as the card used by Lopez in cashing the trav-

eler’s checks. Sappanos, Keane and Grogman went back to

the station, and two other detectives completed the search.

They found the red jacket that had been purchased at the

“Different Circle” store.

Early on February 26, after providing the defendant

with a sandwich and soda, Sappanos and Keane gave the de-

fendant his Miranda rights another time. Again the defen-

dant told the detectives that he had not been totally truthful

about the homicide incident. He told them that on the night

before the checks were cashed he-and Lopez had entered the

Foundation by going through a broken window in the office.

Once inside, Lopez told him to “search in the front” of the

Foundation. There, he found a metal cash box, pried it open,

and took $40 which was in the box. The defendant said that,

while he was in the front office, Lopez went to the back of

the Foundation where he found the victim, who had been

awakened by the intrusion. The defendant saw Lopez strike

the victim twice; however, the weapon was not described.

(The autopsy referred to “strangulation” and “blunt trauma.”)

The defendant then went to the back room and searched the

victim’s pockets, where he found the victim’s traveler’s

checks. He and Lopez then left the premises, Lopez taking

the traveler’s checks from the defendant, and the defendant

keeping the $40. The defendant stated that on the following

day Lopez told him that he was going to cash the traveler’s

checks and that if he, the defendant, would come along, he

would buy something for him (the defendant). The defendant

said he agreed and then gave Lopez $20 of the $40 dollars

taken from the cash box. The defendant stated that several

items of clothing were purchased with the checks, including a

red jacket.

After the defendant’s statement to them, the detec-

tives called in an assistant State’s Attorney to take the con-

pair of purple and black dress pants that he had pointed out to

Lopez in the “Different Circle” store. (Apparently the defen-

dant erred in this, as the record indicates that the pants were

purchased from the “Saturday’s Generation” Store.) Later

that morning, the defendant signed his confession, initialed

each of its pages and Corrected an error in the transcription of

it. A few hours later, the defendant Signed another consent

form, agreeing to a second search of his apartment. That

search produced, as Sappanos testified, the two pairs of pants

Lopez had bought for the defendant.

The defendant first argues that the trial court erred in

denying the motion to quash his arrest for lack of probable

50a

passed the traveler’s check belonging to the deceased,” is in

direct contradiction to Derrick Moore’s trial testimony that

the defendant was not the person who made the purchase

with the victim’s traveler’s check. The State, citing People v.

Pickett (1973), 54 Ill.2d 280, 296 N.E.2d 856, argues that the

defendant has waived the issue of probable cause by failing

to raise it at trial or in his post-trial motion for a new trial.

We consider, however, that the record adequately shows that

the defendant preserved, for review, the issue of probable

cause. We need not address the defendant’s argument that

the trial court erred in stating that the defendant made the

purchase with the victim’s check, for there was probable

cause to arrest on wholly independent grounds.

“Probable cause exists in the objective sense if” * * *

the facts and circumstances within the arresting officer’s

knowledge are sufficient to warrant a man of reasonable cau-

tion in believing that an offense has been committed and that

the person arrested has committed the offense.”” [Citations.]

This standard requires more than mere suspicion, but it does

not require the arresting officers to have in their hands evi-

dence sufficient to convict the defendant. The courts, in

striking a balance between the need to protect citizens from

invasions of their privacy at the whim of police officers and

the countervailing need to allow leeway for efficient en-

forcement of the laws, are sensitive to the fact that policemen

must often make their decisions to arrest or not to arrest un-

der ambiguous circumstances and must exercise their judg-

ment, at the risk of making a mistake. ‘In dealing with

probable cause, * * * as the very name implies, we deal with

probabilities. These are not technical; they are factual and

practical considerations of everyday life on which reasonable

and prudent men, not legal technicians, act.’ [Citation.]”

People v. Moody (1983), 94 Ill.2d 1, 7-8, 67 Ill. Dec. 795, 445

N.E.2d 275.

Sn

Sla

to arrest unless that finding was manifestly erroneous. Peo-

612, 426 N.E.2d 937; People v, Calderon (1980), 85

Ill.App.3d 1030, 1036, 41 Ill.Dec. 342, 407 N.E.2d 840.

the investigating Officers, he had gone to a police station and

“looked through Pictures, mug shots.” The defendant’s at-

torney moved for a mistrial on the ground that the reference

to “mug shots” was Prejudicial. The motion was denied.

various exhibits, including the police Photograph of the de-

fendant that Moore had picked out, Mr. Lyster, the defen-

dant’s attorney, objected to the Photograph’s admission. The

record reads:

“MR. RAAB [Prosecutor]: People’s Exhibit Number

43 for identification, having been identified as a colored pho-

tograph of the defendant, William Cabrera, being identified

52a

by Derrick Moore at Area 6 Violent Crimes vicinity on the

23” of February, 1981; and also having been identified by

Detective Thomas Sappanos as the photograph that was in

fact identified by Derrick Moore on that day and at that

place.

MR. LYSTER: Your Honor, I will object to that.

That is the mug shot. Of course, it has his breastplate in

front of him, indicating his RIWR number on January 21,

1980. I think, obviously, it would be prejudicial for it to be

admitted, even if it is altered or modified, or clipped, because

you would further focus attention on the bottom photo by

even covering it. In other words, if we covered the bottom of

it with any kind of piece of paper. Obviously, you don’t

have to be—you know, all you have to do is be a Sam Spade

to know what this photo is.” (Emphasis added.)

The trial court, after telling the prosecutor, who was

arguing for admission of the photograph, that the jury would

be shown whatever exhibits were admitted in evidence, de-

nied its admission. Thus, the officers had a Chicago police

department mug shot of the defendant with an identification

board, and as his attorney complained, the mug shot indi-

cated his Chicago police department identification number

and referred to January 21, 1980.

Detective Thomas Sappanos and Thomas Keane were

the principal officers in the murder investigation, but at least

two other officers were assigned to the investigation, Sap-

panos testified. Sappanos testified, too, that he prepared

about four investigative reports prior to the defendant’s arrest

on February 24 and that he made a specific report on the

identification of the defendant before he and Keane arrested

him at 5523 North Kenmore Avenue in Chicago. It is appar-

ent that the police, from the defendant’s mug shot with his

name and the police identification number, were able to ex-

amine the Chicago police department reports regarding the

That information included a record of the defendant’s

convictions for burglary and attempted burglary. At the hear-

We cannot say that the trial court’s finding of prob-

able cause was manifestly erroneous.

| Secondly, the defendant contends that he was denied

the right to be tried by a fair and impartial jury because, dur-

ing the polling of the jurors, the trial court did not question a

54a

juror, Ms. Ciancanelli, when she asked whether she had to

answer yes or no to the court’s question whether the verdict

of guilty was her verdict.

After the jury announced its verdict finding the de-

fendant guilty of murder, burglary and robbery, the trial

court, at the defendant’s request, polled the jurors. The court

questioned juror Ciancanelli:

“THE COURT: Was this and is this now your ver-

dict, Miss Cancinelli [sic]?

MS. CANCINELLI [sic]: Can I say what I have to

say, or do I have to give a yes, or no answer? .

THE COURT: I want a yes or no answer. Was this

and is this now your verdict?

MS. CANCINELLI [sic]: I found in my own person

mind—

THE COURT: I said I want a yes or no answer. Was

this and is this now your verdict?

MS. CANCINELLI [sic]: Yes.”

Upon completion of the polling, the defendant asked

the court to inquire of Ms. Ciancanelli, saying it was “obvi-

ous she wanted to say more than a yes or no answer.” The

trial court denied the defendant’s request, agreeing with the

State that it is not the duty of the court to delve into the ju-

rors’ decision- making process, and that the court had given

the jurors sufficient opportunity to state whether they were in

agreement or disagreement with the jury’s verdict.

The defendant later moved for a mistrial on the

ground that the trial court erred in not allowing Ms. Ciaca-

nelli to explain her verdict. The defendant argued that a

“I think the record is clear, and ] would, without a

moment's hesitation, declare a mistrial if ] thought that that

“The polling of a jury is intended “to ascertain

whether any juror had been coerced into agreeing upon a

verdict—coerced by his associate jurors.” [Citation.] While

polling the jury, a trial Court must be careful not to hinder a

juror’s expression of dissent.’ [Citation.]” (People v. Wil-

liams (1983), 97 Ill.24 252, 307, 73 Ill.Dec. 360, 454 N.E.2d

835; People v. Herron (1975), 30 ILApp 3d 788, 792. 332

N.E.2d 623.) A trial court’s determination as to a juror’s

56a

Ill.Dec. 934, 363 N.E.2d 881; People v. Gardner (1976), 40

Ill.App.3d 700, 352 N.E.2d 448.

It cannot be said that the determination of the trial

judge here that the juror voluntarily assented to the verdict

and did not wish to repudiate it is clearly unreasonable.

When Ms. Ciancanelli understood that she was to respond

with a yes or no answer, she unequivocally answered yes

when the judge inquired: “Was this and is this now your

verdict?” The situations in People v. Kellogg (1979), 77

Ill.2d 524, 34 Ill.Dec. 163, 397 N.E.2d 835, and People ex

rel. Paul v. Harvey (1972), 9 Ill.App.3d 209, 292 N.E.2d

124, which decisions the defendant cites, clearly are distin-

guishable. In Kellogg the juror inquired ofthe court as to

whether she might change her vote, and in Harvey the juror,

when asked if the verdict was his, responded: “Well, it

wasn’t exactly, no.”

The defendant also contends that thy statement of Ms.

Ciancanelli taken after the dismissal of *x1e jury should have

been considered by the trial court. We consider, however,

that the trial court’s conduct was unquestionably correct. It

is clear that a statement by a juror, taken after the jury has

rendered its verdict, has been polled in open court, and has

been discharged, will not be admitted to impeach a juror’s

verdict. (People v. Preston (1979), 76 Ill.2d 274, 288-89, 29

Ill.Dec. 96, 391 N.E.2d 359.) In Preston this court stated that

United States v. Schroeder (8th Cir. 1970), 433 F.2d 846,

cert. denied (1971), 401 U.S. 943, 91 S.Ct. 951, 28 L.Ed.2d

224, was pertinent, and said:

“There a juror signed an affidavit stating that he did

not believe that the defendant was guilty and had voted for

conviction against his will, although the juror had answered

in the affirmative when polled on his guilty verdict. A claim

that the verdict against the defendant was not unanimous was

rejected by the court. It stated:

57a

stances of this case, the verdict must stand unimpeached.’

(433 F.2d 846, 851.)” People v, Preston (1979), 76 Ill.2d

274, 288-89, 29 Ill. Dec. 96, 39] N.E.2d 359. Even if we

Section 19-3(a) of the Criminal Code of 196]

(Ill.Rev.Stat.1981, ch. 38, par. 19-1(a)) provides in part:

“A person commits burglary when without authority

he knowingly enters * * * a building * * * with the intent to

commit therein a felony or theft.”

of the offense of burglary “in that he, without authority,

knowingly entered into a building, to wit: the dwelling of

therein.” Section 18-1(a) of the Criminal Code

(Ul.Rev.Stat.1981, ch. 38, par. 18-1(a)) provides,

58a

“A person commits robbery when he takes property

from the person or presence of another by the use of force or

by threatening the imminent use of force.”

To commit burglary there must be an unlawful entry

into a building with the intent to commit a felony or theft.

(People v. Peck (1963), 29 Ill.2d 480, 484, 194 N.E.2d 245;

People v. Scott (1969), 43 Ill.2d 135, 144, 251 N.E.2d 190.)

“The felonious intent of an accused may be inferred from his

words, action, violence and other conduct and it is within the

province of the jury to consider all the facts and circum-

stances of the case in determining the question of intent.”

(People v. Maffioli (1950), 406 Ill. 315, 320, 94 N.E.2d 191;

People v. Soznowski (1961), 22 Ill.2d 540, 543, 177 N.E.2d

146.) Circumstances inciude “the time, place and manner of

entry into the premises, the defendant’s activity within the

premises, and any alternative explanations offered for his

presence.” People v. Richardson (1984), 104 Ill.2d 8, 13, 83

Ill.Dec. 604, 470 N.E.2d 1024.

Contentions similar to those of the defendant were

made in People v. Zuniga (1981), 99 Ill.App.3d 396, 54

Ill.Dec. 877, 425 N.E.2d 1094. There the defendant, in the

early evening hours, entered a church basement through a

broken window. A priest, noticing the broken window, en-

tered the church and went to the basement. The defendant

struck the priest with a metal rod and demanded his money.

The priest managed to elude the defendant and call for help.

On appeal, the defendant in Zuniga argued that his

burglary conviction should be reversed as the State failed to

prove that he had entered the church with the intent to com-

mit armed robbery. Th» court stated that the offense of bur-

glary was complete upon the defendant’s entry into a

building with the requisite intent; and that the elements of the

offense, including the defendant’s intent, could be inferred

from the facts and circumstances in evidence. (People v.

59a

Zuniga (1981), 99 Ill.App.3d 396, 400, 54 Ill.Dec. 877, 425

N.E.2d 1094.) The court, in affirming the defendant’s con-

viction, held that the testimony presented was sufficient to

create a question for the jury and that the evidence “was not

so palpably contrary to the verdict or so unreasonable, im-

probable, or unsatisfactory as to create a reasonable doubt of

defendant’s guilt.” People v. Zuniga (1981), 99 Ill. App.3d

396, 400, 54 Ill.Dec. 877, 425 N.E.2d 1094.

The evidence here resembles what occurred in People

v. Zuniga. As stated above, it was the province of the jury to

determine the question of intent, and that determination will

not be disturbed on review unless the evidence is so improb-

able as to cast reasonable doubt on the guilt of the defendant.

People v. Stewart (1984), 105 Ill.2d 22, 66, 85 Ill.Dec. 241,

473 N.E.2d 840; People v. Zuniga (1981), 99 Ili. App.3d 396,

400, 54 Ill.Dec. 877, 425 N.E.2d 1094; People v. Davis

(1977), 54 Ill.App.3d 517, 524, 12 Ill.Dec. 362, 369 N.E.2d

1376. .

The final argument of the defendant is that the trial

court abused discretion in imposing an extended-term sen-

tence of 60 years, as the victim’s murder was not “accompa-

nied by exceptionally brutal or heinous behavior indicative of

wanton cruelty.” Ill.Rev.Stat.1981, ch. 38, par. 1005-5-

3.2(b)(2).

We recently observed in People v. Barrios (1986),

114 Ill.2d 265, 277, 102 Ill.Dec. 522, 500 N.E.2d 415, that

this court has consistently held that “‘where it is claimed that

the punishment imposed is excessive, although within the

limitations prescribed by the legislature, that sentence should

not be disturbed unless it is greatly at variance with the pur-

pose and spirit of the law or manifestly in excess of the pro-

Scriptions of section 11 of article II of the [1870] Illinois

constitution which requires that all penalties should be pro-

portioned to the nature of the offense. The trial court is nor-

60a

mally in a superior position during the trial and the hearing in

aggravation and mitigation to make a sound determination as

to the punishment to be imposed than are courts of review.’

[Citations.]” Unless there has been an abuse of discretion by

the trial court, we will not disturb the defendant’s sentence.

People v. Perruquet (1977), 68 Ill.2d 149, 154, 11 Ill.Dec.

274, 368 N.E.2d 882.

Sections 5-5-3.2(b)(1) and (b)(2) of the Unified Code

of Corrections provide:

“(T]he following factors may be considered by the

court as reasons to impose an extended term sentence under

Section 5-8-2 upon any offender who was at least 17 years

old on the date the crime was committed:

(1) When a defendant is convicted of any felony, after

having been previously convicted in Illinois of the same or

greater class felony, within 10 years, excluding time spent in

custody, and such charges are separately brought and tried

and arise out of different series of acts; or

(2) When a defendant is convicted of any felony and

the court finds that the offense was accompanied by excep-

tionally brutal or heinous behavior indicative of wanton cru-

elty; * * *.” (Ill-Rev.Stat.1981, ch. 38, pars. 1005-5-

3.2(b)(1), (b)(2).)

An extended-term sentence that may be imposed for

murder upon consideration of the statutory factors is a term

of not less than 40 years and not more than 80 years.

Ill.Rev.Stat.1981, ch. 38, par. 1005-8-2(a)(1).

The trial court, in imposing an extended-term sen-

tence here, stated:

6la

“On the murder, I’m finding that the defendant has

previously been convicted of [fJelonies and that this particu-

lar murder was accompanied by exceptionally brutal or hei-

nous treatment indicative of wanton cruelty. The court

specifically recalls the pictures that showed the blood splat-

tered on the wall, on the floor and I specifically recall the

condition of the victim’s body, therefore, I’m sentencing the

defendant to a term of incarceration with the Illinois Depart-

ment of Corrections of 60 years * * +”

For the reasons given, the judgment of the appellate

court is affirmed.

Judgement affirmed

Justice GOLDENHERSH took no part in the

consideration or decision of this case.

Chief Justice CLARK, specially concurring:

I write separately because | believe that the police il-

legally arrested the defendant in his home, without first seek-

ing an arrest warrant, and without a Showing of exigent

62a

Under Payton v. New York (1980), 445 U.S. 573,

574-75, 602-03, 100 S.Ct. 1371, 1374-75, 1388, 63 L.Ed.2d

639, 643-44, 660-61, the police may not, absent exigent cir-

cumstances, enter a suspect’s home to arrest the suspect

without a warrant for his arrest and reason to believe that he

is within his home. According to the majority’s own account

of the facts, the police went to the defendant’s apartment,

knocked on the door, identified themselves, and then arrested

the defendant when he opened the door to them. There is no

showing that the defendant consented to their entry into his

apartment prior to his arrest. This was an at-home arrest.

It was not justified by exigent circumstances. An un-

necessary and unjustified delay of at least 24 hours elapsed

between the time the police supposedly obtained probable

cause from Derrick Moore, on February 23, and their arrest

of the defendant on the evening of February 24. Under

Payton, the police need not obtain a search warrant to enter

the defendant’s residence if they possess an arrest warrant for

the defendant and probable cause to believe that the defen-

dant is within the premises. (United States v. Clifford (8th

Cir. 1981), 664 F.2d 1090, 1093.) Thus the police in this

case could have obtained a warrant for the defendant’s arrest

at any time between obtaining probable cause to arrest on

Februa. y 23, and arresting the defendant on the evening of

February 24. Nothing excuses their failure to do so.

Moreover, it seems clear to me that the defendant’s

statements and consents were not given of “sufficient free

will as to purge the primary taint of the unlawful arrest.”

(Brown v. Illinois (1975), 422 U.S. 590, 600, 95 S.Ct. 2254,

2260, 45 L.Ed.2d 416, 425.) The length of the defendant’s

confinement, the lack of food and denial of sleeping accom-

modations would all tend to suggest that the statements and

consents were derived from the exploitation of the defen-

dani’s illegal arrest.

63a

In this bicentennial year, it is important to remember

that the protections granted all of us under the Bill of Rights

They are not meaningless roadblocks thrown in the path of

the police. Unless and until this court gives a Strong signal

that it will not tolerate such illegal activity, the police may

continue to ignore the clear letter of the law. The majority’s

silence with respect to the absence of a warrant in this case

Justice SIMON, dissenting:

I dissent because the constitutional requirements for a

Showing of probable cause have not been satisfied here. In-

Stead, the majority’s rationale introduces to Illinois an inno-

vative concept of appellate review. In determining whether

there has been a showing of probable cause, reviewing jus-

tices may now speculate as to what they would have done

had they been the investigating officers, leaving for defen-

dants the task of proving that the real-life Police did other-

wise. That type of review makes it easier to justify a

warrantless arrest than it is to obtain an atrest warrant: for a

warrant to issue the State must allege sufficient facts to estab-

lish probable cause, while in the case of a warrantless arrest

such facts may, under the majority’s sanction, merely be pre-

sumed. To avoid discouraging the use of arrest warrants,

however, the Supreme Court has said that the standards ap-

plicable to judgi & warrantless arrests must be “at least as

Stringent as the standards applied with respect to the magis-

trate’s assessment.” (Whiteley v. Warden (1971), 401 U.S.

560, 566, 91 S.Ct. 1031, 1036, 28 L.Ed.2d 306, 312.) The

64a

majority’s standard of review is irreconcilable with that ad-

monition.

Disregarding the State’s admission during oral argu-

ment before this court that “it is not in the record what police

officer[s] actually knew at the time [they] arrested the defen-

dant,” the majority substitutes as a basis for its decision what

the officers might have known. It thus ignores the funda-

mental rule of warrantless arrests, that the existence of prob-

able cause must be proved by facts within the arresting

officers’ knowledge at the time the defendant was seized.

“Whether that arrest was constitutionally valid de-

pends in turn upon whether, at the moment. the arrest was

made, the officers had probable cause to make it—whether at

that moment the facts and circumstances within their knowl-

edge and of which they had reasonably trustworthy informa-

tion were sufficient to warrant a prudent man in believing

that the [defendant] had committed or was committing an

offense.” (Beck v. Ohio (1964), 379 U.S. 89, 91, 85 S.Ct.

223, 225, 13 L.Ed.2d 142, 145; see People v. Wright (1968),

41 [ll.2d 170, 174, 242 N.E.2d 180.)

In so doing, the majority rebuffs the previously well-

established rule that in cases of warrantless arrest the State

carries the burden of establishing probable cause (People v.

Kraman (1981), 96 Ill.App.3d 390, 51 Ill.Dec. 838, 421

N.E.2d 346; People v. Moncrief (1971), 131 Ill.App.2d 770,

268 N.E.2d 717; see United States v. Allen (D.C.Cir. 1980),

629 F.2d 51; United States v. Guana-Sanchez (7" Cir. 1973),

484 F.2d 590; State v. Edwards (1974), 111 Ariz. 357, 529

P.2d 1174; People v. Tufts (Colo.1986), 717 P.2d 485; Pal-

migiano v. Mullen (1977), 119 R.I. 363, 377 A.2d 242; Rob-

erts v. State (Tex.Crim.App.1977), 545 S.W.2d 157), and it

requires defendants to produce evidence in the trial court to

disprove a theory of probable cause which is only revealed

after resolution by the reviewing court.

65a

The defendant claims that there was no probable

cause for his arrest because all that the arresting officers

knew at the time of his arrest was that the defendant had been

in the company of another man who used Mr. Keena’s (the

victim’s) checks to purchase clothing. The trial court found

from one of the arresting officer’s misleading testimony (that

the defendant was “involved” in using the stolen check) that

the defendant passed Mr. Keena’s check; but Derrick Moore,

assistant sales manager at the Different Circle, cantradicted

that officer’s testimony. (The other arresting officer’s testi-

mony contained no additional information tending to estab-

lish probable cause.) Moore testified at trial that the

defendant came into his store with two other men, and that

the defendant browsed through clothing while one of the

other two made the purchase at issue. Moore’s testimony has

been accepted by the State as an accurate account; thus the

State now agrees that prior to the defendant’s arrest there was

no reason to believe that he had made a purchase with, or en-

gaged in a transaction concerning, the victim’s check.

According to the majority, however, the defendant

mischaracterizes the issue because the police had “other sig-

nificant information” (116 Ill.2d at 485- 86, 108 Ill.Dec. at

401, 508 N.E:2d at 712) tending to establish probable cause.

First, the majority finds significance in Moore’s identifica-

tion of the defendant after viewing some 200 photographs

and in Moore’s description of a scar which the identifying

photograph did not depict. True, that information bolsters

the certainty of Moore’s identification, so the court is able to

conclude with greater assurance that the defendant was the

man whom Moore observed in his store while somebody else

made a purchase with the victim’s check. But the defendant

has never contested the sufficiency of Moore’s identification.

Whether the defendant’s presence alone provides probable

cause is the question presented, a question for which the cer-

tainty of Moore’s identification is hardly “significant.”

66a

The crux of the majority opinion is not what the po-

lice could infer from Moore’s identification, but what they

might make of the identifying photograph. From the exis-

tence of defendant’s mug shot the majority reaches for a con-

clusion which the record does not support: that the police

were aware of the defendant’s earlier burglary convictions.

The majority opinion first states—without support in the re-

cord—that from the mug shot police could locate defendant’s

“rap sheet” between the time that Moore identified the de-

fendant’s picture and the time of the defendant’s arrest. Next

it presumes—also without benefit of evidence—that since

police officers could review the defendant’s criminal history,

they in fact did so. “It is apparent that the police, from the

defendant’s mug shot * * *, were able to examine the Chi-

cago police department reports regarding the defendant and

could ascertain his record and address * * * and that from the

mug shot [the arresting officers] ascertained the information

appearing in the Chicago police department records regard-

ing the defendant.” (Emphasis added.) 116 Ill.2d at 487, 108

Ill.Dec. at 402, 508 N.E.2d at 713.

In this manner the majority conjures up additional

evidence to support a conclusion which the known facts do

not. But the illusion is transparent, particularly as the major-

ity calls upon two equally flawed assumptions to detract from

the absence of any supportive evidence.

The first is that police arrested the defendant at the

address supplied on his rap sheet, thereby demonstrating that

they had read the rap sheet and were familiar with its con-

tents and the defendant’s criminal conduct recounted therein.

In its brief the State claims: “The last entry on this document

[defendant’s criminal history] lists defendant’s address at

5523 North Kenmore, which is exactly where the police went

to arrest defendant.” Accepting the State’s crude misstate-

ment of the record, the majority reasons: the police were

able to aScertain the defendant’s address from his record, and

a

67a

“[t]hus, they were able to arrest him at his apartment at 5523

North Kenmore Avenue in Chicago.” 116 Ill.2d at 487, 108

Ill.Dec. at 402, 508 N.E.2¢ at 713.

The flaw in this reasoning is that prior to the defen-

dant’s arrest for this crime, his record did not indicate an ad-

dress on Kenmore Avenue, so the officers’ knowledge of

defendant’s address does not by inference or in any other

way establish their knowledge of his burglary record. The

defendant’s criminal history (appended to this dissent as it

appears in the record) indicates for all entries save the last an

address of “1230 W. Argyle.” The last entry does indicate

“3523 N. Kenmore,” but what the State’s argument and ma-

jority opinion have overlooked is that the last entry was

made in connection with the arrest at issue in this case.

The second assumption is that because one of the ar-

resting officers testified to having written a police report re-

garding Moore’s identification Prior to the defendant’s arrest,

“[h]e certainly would have examined the Chicago police de-

partment records of the defendant.” (Emphasis added.) (116

Ill.2d at 487, 108 Ill.Dec.at 402, 508 N.E.2d at 713.) That

presumption is also baseless. The fact that a report was writ-

ten about the identification proves nothing itself; its rele-

vance to the question of what the arresting officers knew can

only be uncovered by knowing what information the report

contains. Since the State never offered the report in evi-

dence, an inference arises that its contents are not beneficial

to the prosecution. See Massa v. Department of Registration

& Education (1987), 116 Ill.2d 376, 386, 107 Ill.Dec. 661,

507 N.E.2d 814.

By stating that police officers would “certainly” ex-

amine the defendant’s criminal history, the majority imagines

what an experienced detective would investigate and that de-

tectives in this case performed their investigation in accor-

dance with the majority’s hypothetical standard. Considering

68a

the arresting officer’s own lack of precision 1n testifying as to

the defendant’s “involvement” in using the victim’s trav-

eler’s checks, and the extent to which that imprecision has

been the cause of this protracted search for probable cause,

there is no reason to blindly rely upon the unproved assump-

tion that he took care to examine the defendant’s criminal

record before making his arrest. More disturbing, however,

is the implication that in every future case the court will as-

sume that the actual investigation was a model of good police

work, and since unlawful arrests are inconsistent with good

police work, probable cause must exist. —

Contrary to the majority’s opinion, the record here

suggests that prior to the defendant’s arrest, the arresting of-

ficers knew that the victim had been murdered sometime on

the 11" or 12" of February, that one of the victim’s traveler’s

checks had been used on February 11 to purchase merchan-

dise from the Different Circle store in Chicago, that the de-

fendant had been identified as one of two individuals who

accompanied a third man to the Different Circle when the

third man passed that check, but nothing more. Derrick

Moore described those three men to police, but other than the

identification of the defendant the record does not indicate

what descriptions Moore gave, their depth of detail, or

whether the victim matched Moore’s description of the man

who actually used the traveler’s check. Therefore, from what

the record shows to have been within the arresting officers’

knowledge at the time of the defendant’s arrest, the victim

himself might have been alive and in the company of the de-

fendant at the Different Circle store, only to be murdered

later that night in an unrelated occurrence.

Even stepping beyond the evidence of record to pre-

sume that Moore’s initial description of the person who ne-

gotiated the victim’s traveler's check excluded that

possibility, all that the arresting officers knew was that the

defendant had been in the company of a man for whom prob-

- 69a

able cause to arrest existed by virtue of his possession of the

victim’s property. That information was insufficient to jus-

tify the defendant’s arrest; “a person’s mere propinquity to

others independently Suspected of criminal activity does not,

without more, give rise to probable cause” for his arrest.

(Ybarra v. Illinois (1979), 444 U.S. 85, 91, 100 S.Ct. 338,

342, 62 L.Ed.2d 238, 245: Sibron vy. New York (1968), 392

U.S. 40, 62-63, 88 S.Ct. 1889, 1902-03, 20 L.Ed.2d 917,

934-35.) From what the officers knew prior to his arrest, the

defendant’s conduct was, like that of the appellant in United

States v. Di Re (1948), 332 US. 581, 68 S.Ct. 222, 92 L.Ed.

210, insufficient to justify an arrest because his mere pres-

ence while the check was negotiated did not establish his

connection to any crime.

“The argument that one who ‘accompanies a criminal

to a crime rendezvous’ cannot be assumed to be a bystander,

forceful enough in some circumstances, is farfetched when

the meeting is not secretive or in a suspicious hideout but in

broad daylight, in plain sight of passers-by, in a public street

of a large city, and where the alleged substantive crime is one

which does not necessarily involve any act visibly criminal.

If Di Re had witnessed the passing of papers from hand to

hand, it would not follow that he knew they were ration cou-

pons, and if he saw that they were ration coupons, it would

not follow that he would know them to be counterfeit.” 332

U.S. 581, 593, 68 S.Ct. 222, 228, 92 L.Ed. 210, 219-20.

Notwithstanding the majority’s attempt to bolster the

record with presumptions of good police work, the evidence

Supports but a single conclusion: that the defendant was ar-

rested solely for having been in the company of another who

possessed and used the victim’s property. The case is thus

similar to People v. Creach (1980), 79 Ill.2d 96, 37 Ill.Dec.

338, 402 N.E.2d 228, where this court found probable cause

lacking for the arrest of Thomas Ruppert. Though he had

traveled in the victim’s car with Creach to Ohio shortly after

70a

the murder, Ruppert’s arrest was found to have been made

unlawfully, regardless of the legality of Creach’s arrest, be-

cause “probable cause to arrest a particular individual does

not arise merely from the existence of probable cause to ar-

rest another person in the company of that individual.” 79

Ill.2d 96, 102-03, 37 Ill.Dec. 338, 402 N.E.2d 228; see Peo-

ple v. Carnivale (1975), 61 Ill.2d 57, 329 N.E.2d 193.

The majority appears to distinguish Creach on the ba-

sis of “other significant information” supposedly known by

the arresting officers. Since the record, as I have demon-

strated, does not lend support to the majority’s rationale, the

distinction is invalid, and I do not see how Creach can sur-

vive the holding in this case. Neither do I believe that the

majority opinion is consonant with constitutional safeguards.

Moore’s identification might have ignited suspicion of the

defendant’s involvement, but “suspicion is not enough for an

officer to lay hands on a citizen.” Henry v. United States

(1959), 361 U.S. 98, 104, 80 S.Ct. 168, 172, 4 L.Ed.2d 134,

139.

There can be little doubt that “guilt by association” is

a fallacious notion which can never legitimate an arrest made

without other specific information providing probable cause.

(People v. Feltch (1971), 174 Colo. 383, 387, 483 P.2d 1335,

1337 (an “arrest based upon the theory that birds of a feather

flock together, cannot be sustained”); Smith v. State

(Okla.Crim.App.1974), 525 P.2d 1251, 1253.) The majority

is in apparent agreement, finding it necessary to draw upon

matters not of record to uphold the legality of the defendant’s

arrest, but the majority never explains whether or why “pro-

pinquity” plus supposed knowledge of prior convictions

forms probable cause.

The prosecutors were given ample opportunity to offer evi-

dence in the trial court supporting the legality of the defen-

dant’s arrest, and misleading testimony by the arresting

7la

officers was the best they could produce. That deception re-

vealed, the majority’s opinion tries to uphold the arrest by its

own sleight of hand. It succeeds, but only to a degree. Al-

though the arrest haz been approved, it has not been legiti-

mated.

72a

APPENDIX D

Appellate Court of Illinois,

First District, Fourth Division.

The PEOPLE of the State of Illinois, Plaintiff-Appellee,

v.

William CABRERA, Defendant-Appellant.

No. 83-1293.

June 20, 1985.

Rehearing Denied July 24, 1985

JOHNSON, Justice:

In a jury trial in the circuit court of Cook County,

William Cabrera, defendant, was found guilty of murder,

burglary, and robbery. He was sentenced to a term of 60

years for murder and to a term of 14 years for burglary and

robbery, the sentences to run concurrently. On appeal, de-

fendant argues that (1) he was denied a fair trial and an im-

partial jury; (2) the trial court’s findings that the arresting

officers had probable cause to arrest him is manifestly erro-

neous; (3) the trial court abused its discretion in giving him

extended sentences for the convictions; (4) the 60-year sen-

tence for murder is excessive; and (5) the State failed to

prove beyond a reasonable doubt that he had a specific intent

to commit a burglary.

We affirm as modified.

The facts reveal that on the night of February 10,

1981, at approximately 11:30 p.m., defendant Caberera and

73a

Ruben Lopez, his accomplice, gained unauthorized entry,

through a window, into the offices of the Assyrian National

Foundation, located at 1475 West Balmoral Avenue, in Chi-

cago. Once inside the building, defendant stole money from

the foundation and killed a man by strangling him and hitting

him with a blunt instrument. Before leaving the premises,

defendant and Lopez robbed the victim of traveler’s checks.

Several days later, defendant, with two other persons, went to

the Century Mall in Chicago. While there, one of the indi-

viduals who accompanied defendant purchased clothes and

paid for them with the stolen traveler’s checks.

On February 23, 1981, police detectives Sappanos

and Keane went to the Century Mall and interviewed Derrick

Moore, the owner of the store where the stolen traveler’s

checks had been used. Moore informed the officers that he

remembered the men who had used the checks. Moore

viewed police department photographs and identified defen-

- dant as one of the persons who was with the individual who

bought merchandise with the traveler’s checks. Detectives

Sappanos and Keane went to defendant’s house the next day

and arrested him for murder. The Officers did not have an

arrest warrant. Defendant consented to a search of his house.

Prior to trial, defendant moved to quash his arrest and to sup-

Defendant argues that he was denied his right to a fair

trial and an impartial jury when, after the verdict, the first

juror polled by the trial judge indicated possible dissent from

the verdict and the trial court failed to inquire as to that dis-

sent. The following colloquy occurred:

“THE COURT: Is it your desire to have the jury

polled, Mr. Lyster?

74a

MR. LYSTER [counsel for defendant]: Yes.

THE COURT: I’m going to ask you this question,

and I want you to pay attention to it.

Was this and is this now your verdict, Miss Cancinelli

[sic]?

MS. CANCINELLI [sic] [juror]: Can I say what I

have to say, or do I have to give a yes, or no answer?

THE COURT: I want a yes or no answer.

Was this and is this now your verdict?

MS. CANCINELLI [sic]: I found in my own person

mind—

THE COURT: I said I want a yes or no answer.

Was this and is this now your verdict?

MS. CANCINELLI [sic]: Yes.”

A defendant in a criminal case is guaranteed a trial by

an impartial jury. (U.S. Const. Amend. VI; Ill. Const.1970,

art. 1, § 8; Irvin v. Dowd (1961), 366 U.S. 717, 81 S.Ct.

1639, 6 L.Ed.2d 751.) Essential to that guarantee is the re-

quirement that the verdict reached be freely arrived at by

each juror. (Martin v. Morelock (1863), 32 Ill. 485, 488.)

Defendant’s right to individually poll jurors after a verdict is

one method of safeguarding defendant’s right to be tried by

an impartial jury. (People v. DeStefano (1965), 64 Ill.App.2d

389, 408, 212 N.E.2d 357, 367.) Defendant argues that Peo-

ple v. Kellogg (1979), 77 Ill.2d 524, 34 Ill.Dec. 163, 397

N.E.2d 835, and People ex rel. Paul v. Harvey (1972), 9

Ill.App.3d 209, 292 N.E.2d 124, are controlling on the issue

75a

of juror dissent. He complains that the holding and reasoning

of both cases require a reversal of his murder conviction.

In Kellogg, the jurors were polled and each juror was

asked, “Was this then and is this now your verdict?” Eleven

jurors replied, “Yes.” The following colloquy occurred be-

tween the court and the remaining juror:

““THE COURT: Susan M. Vesecky, was this then

and is this now your verdict?

JUROR VESECKY: Yes. Can] change my vote?

THE COURT: The question is, was this then and is

this now your verdict?

JUROR VESECKY: (No response.)

THE COURT: Was this then and is this now your

verdict?

JUROR VESECKY: Yes, Sir.” (77 Ill.2d 524, 527,

34 Ill.Dec. 163, 397 N.E.2d 835.)

The court held there was nothing wrong with the. __

double-barrel question used in the colloquy, “Was this then

and is this now your verdict;” nevertheless, it held if a juror

indicates some hesitancy or ambivalence in his answer, it is

the trial judge’s duty to ascertain the juror’s present intent by

affording the juror the Opportunity to make an unambiguous

reply as to his present state of mind. (77 Ill.2d 524, 528, 34

Ill.Dec. 163, 397 N.E.2d 835.) The court reversed defen-

dant’s conviction in Kellogg because the trial court failed to

follow this duty.

In People ex rel. Paul v. Harvey (1972), 9 Iil.App.3d

209, 210, 292 N.E.2d 124, 125-26, the following colloquy

occurred at trial between the court and a juror during polling:

76a

“* “THE COURT: Is this and was this your verdict?

-JUROR: Well, it wasn’t exactly, no.

THE COURT: Did you sign this?

JUROR: Yes, I did.

THE COURT: Then it’s your verdict.’”

The court held that the juror indicated possible dis-

sent, and the trial court, therefore, had a duty to inquire as to

that dissent. Harvey, at 212, 292 N.E.2d 124.

Defendant’s case is distinguishable from Kellogg and

Harvey because, unlike the jurors in those cases, Ms. Cianca-

nelli did not indicate ambivalence or hesitancy in her reply.

We do not interpret her replies, “Can I say what I have to say

or do I have to give a yes, or no answer?” and “I found in my

Own person mind,” as indicating ambivalence or hesitancy in

her answer. In Kellogg and Harvey, it was clear to the re-

viewing court that the jurors had reservations about their de-

cision. Here, Ms. Ciancanelli never indicated to the trial

court that her vote as reached during deliberation did not ac-

curately reflect her decision as to defendant’s guilt.

The primary purpose of jury -polling is to determine

that the jury’s verdict accurately reflects each juror’s vote as

reached during deliberations and that the juror’s vote was not

the result of force or coercion. (People v. Williams (1983),

97 Ill.2d 252, 307, 73 Ill.Dec. 360, 386, 454 N.E.2d 220,

246.) A judge must be careful to determine the juror’s pre-

sent intent in the polling. (People v. Kellogg (1979), 77

Ill.2d 524, 529, 34 Ill.Dec. 163, 166, 397 N.E.2d 835, 838.)

It is for the trial court to determine whether a juror has freely

assented to the verdict. It not only hears the juror’s response,

it also observes the juror’s demeanor and tone of voice. (77

77a

_‘Ill.2d 524, 529, 34 Ill.Dec. 163, 397 N.E.2d 835.) We can

only second-guess at this Stage on those factors considered

by the trial court. We, therefore, conclude that unless it is

clear to the reviewing court that a juror indicated possible

dissent, we will not reverse on jury dissent grounds. Since

Ms. Ciancanelli’s response indicated no ambivalence or hesi-

tancy, there was no cause for the judge to further question her

as to possible dissent. Thus, we hold the trial court had no

duty to inquire as to her possible dissent.

Defendant also contends that a Statement given by

Ms. Ciancanelli 2 hours after the jurors were dismissed indi-

cates that she wanted to dissent from the verdict and change

her vote. A statement which goes to the deliberation process

and is taken after the verdict has been read, and the jury has

been polled and discharged, is not admissible (People v. Pre-

ston (1979), 76 Ill.2d 274, 288, 29 Ill.Dec. 96, 103, 391

N.E.2d 359, 366), and therefore not reviewable by this court.

Accordingly, after the jurors were discharged, Ms. Cianca-

nelli’s change of mind or claim that she was mistaken or un-

willing in her asseni to the verdict comes too late. 76 IIl.2d

274, 288, 29 Ill_Dec. 96, 391 N.E.2d 359.

Before trial, defendant motioned the court to quash

his arrest for lack of probable cause and to Suppress the evi-

dence recovered as a consequence of the illegal arrest. He

contends the trial court’s findings of probable cause to arrest

was manifestly erroneous because it was based entirely on

defendant’s presence with another person who used traveler’s

checks stolen from the murder victim.

Probable cause to arrest exists where the facts and

circumstances known to the police would justify a man of

reasonable caution to believe that a crime has been commit-

ted by the individual he intends to arrest. (People v. Miller

(1980), 91 Ill_App.3d 1031, 1037, 47 Ill.Dec. 533, 538, 415

N.E.2d 538, 543.) It is something less than evidence neces-

78a

sary to result in conviction. (People v. Frye (1983), 113

Ill.App.3d 853, 859, 69 Ill.Dec. 630, 634, 447 N.E.2d 1065,

1069.) In determining the existence of probable cause, the

courts are concerned with probabilities derived from factual

and practical consideration of everyday life by reasonable,

prudent men—not legal technicians. People v. Creach

(1980), 79 Ill.2d 96, 102, 37 Ill.Dec. 338, 341, 402 N.E.2d

228, 231.

The ruling of a trial court regarding a motion to sup-

press will not be overturned unless it is-manifestly erroneous.

(People v. Tribett (1981), 98 Ill.App.3d 663, 671, 53 Ill.Dec.

897, 903, 424 N.E.2d 688, 694.) In support of his contention

that the trial court erred, defendant cites to People v. Carni-

vale (1975), 61 Ill.2d 57, 329 N.E.2d 193, People v. Lumpp

(1981), 113 Ill.App.3d 694, 69 Ill.Dec. £28, 447 N.E.2d 963,

and People v. Creach (1980), 79 Ill.2d 96, 37 Ill.Dec. 338,

402 N.E.2d 228. He states that the court in those cases rea-

soned that probable cause to arrest a person does not arise

merely from the presence of that person in the company of

another. Even assuming, arguendo, that defendant is correct

in his reasoning, this case is distinguishable from those cited;

here, the arresting officers had more facts available to them

than that defendant was merely present with another suspect.

In the present case, the officers knew that defendant had been

twice convicted of burglary in the past 6 months. Moreover,

they knew defendant’s past burglaries had occurred in the

same general area as the murder and burglary they were in-

vestigating, and that defendant lived in the general area

where the murder and burglary occurred.

Defendant was arrested at his home after being identi-

fied by a store owner as one of three individuals who pur-

chased clothes and paid for them with the victim’s traveler’s

checks. The store owner also told the officers that defendant

had a large scar on his neck. With this information and what

they knew of defendant’s past burglaries in the general area

79a

where the murder and burglary occurred, the officers went to

defendant’s house without an arrest warrant and placed him

under arrest. Based on this information, we hold the trial

court’s finding of probable cause was not manifestly errone-

ous.

Defendant complains that he was improperly given an

extended sentence for each of the offenses for which he was

convicted. He argues that the murder of the victim was not

accompanied by exceptionally brutal or heinous behavior in-

dicative of wanton cruelty.

The trial court may impose an extended term sentence

when a defendant is convicted of any felony and the court

finds that the offense was accompanied by exceptionally bru-

tal or heinous behavior indicative of wanton cruelty.

(Ill.Rev.Stat.1981, ch. 38, par. 1005-5-3.2(b)(2).) When de-

fendant is convicted of several offenses, he may receive an

extended sentence for only the most serious class of offenses.

People v. Jordan (1984), 103 Ill.2d 192, 205, 82 Ill.Dec. 925,

931, 469 N.E.2d 569, 575.

The record indicates the victim’s death was caused by

strangulation and blows by a blunt instrument. Moreover,

the victim’s blood was splattered over the interior wall of the

building, indicating the biows were vicious. We hold that the

trial court correctly found the victim’s murder was accompa-

nied by exceptionally brutal or heinous behavior indicative of

wanton cruelty.

Defendant correctly argues that the trial court erred in

imposing an extended sentence for his burglary and robbery

convictions. Burglary and robbery. are Class 2 offenses.

Thus, both crimes are of a different class than defendant’s

murder conviction. The trial court was limited to imposing

an extended sentence for the murder conviction only. (Jor-

dan, at 205, 82 Ill.Dec. 925, 469 N.E.2d 569.) We therefore

80a

reduce defendant’s sentence for burglary and robbery to 7

years.

Defendant next argues that his sentence for the mur-

der conviction was excessive. Determining the appropriate

sentence for an offender rests in the sound discretion of the

trial court. (People v. La Pointe (1982), 88 Ill.2d 482, 492,

59 Ill.Dec. 59, 63, 431 N.E.2d 344, 348.) We will not alter

the trial court’s sentence absent an abuse of discretion. (La

Pointe, at 492, 59 Ill.Dec. 59, 431 N.E.2d 344.) Defendant

was convicted of murder and had three prior felony convic-

tions. The trial court could have given defendant a sentence

of not less than 40 years and not more than 80 years.

(Ill.Rev. Stat.1981, ch. 38, par. - 1005-8-2(a)(1);

Ill.Rev.Stat.1981, ch. 38, par. 1005-5-3.2(b)(1), (2).) Defen-

dant’s sentence was less than the maximum sentence he

could have received. We hold the trial court did not abuse its

discretion in sentencing defendant to 60 years for the murder

conviction.

Lastly, defendant argues that the State failed to prove

beyond a reasonable doubt that he had the specific intent to

commit burglary. Section 19-1(a) of the “‘riminal Code

(Ill.Rev.Stat.1981, ch. 38, par. 19- 1(a)) provides, in pertinent

part, that “A person commits burglary when without author-

ity he knowingly enters * * * a building * * * with intent to

commit therein a felony or theft.” Proof of an unlawful

breaking and entering in the absence of inconsistent circum-

stances is sufficient to infer the intent to commit a theft.

(People v. Toolate (1984), 101 Ill.2d 301, 308, 78 Ill.Dec.

153, 156, 461 N.E.2d 987, 990.) Intent is a state of mind

which can be inferred from surrounding circumstances.

(People v. Richardson (1984), 104 Ill.2d 8, 13, 83 Ill.Dec.

604, 606, 470 N.E.2d 1024, 1026.) Here, defendant con-

fessed that without authorization he entered the building to

steal valuables and money. Moreover, testimony revealed he

cashed traveler’s checks taken from the victim. We hold the

8la

evidence and surrounding circumstances were sufficient for

the jury to infer the requisite intent.

Accordingly, defendant’s convictions for murder,

burglary, and robbery are affirmed. His sentence for bur-

glary and robbery is reduced to 7 years and is to run concur-

rently with his 60-year sentence for murder.

Affirmed as modified.

JIGANTI, P.J.; and LINN, J., concur.

82a

APPENDIX E

IN THE CIRCUIT COURT

OF THE COOK JUDICIAL CIRCUIT

COOK COUNTY, ILLINOIS

WILLIAM CABRERA,

Criminal

Petitioner-Defendant,

: Case No. 81 1 2442

vs

)

)

)

)

)

)

)

:

THE P'ZOPLE OF THE Charge: Murder

STATE OF ILLINOIS, Thursday, March 17, 1983

Respondent-Plaintiff. at 1:30 o’clock p.m.

Court convened pursuant to adjournment.

APPEARANCES:

MR. ROBERT RAAB and

MR. BRIAN BARNETT,

Assistant State’s Attorneys,

for the Respondent-Plaintiff.

MR. TODD LYSTER,

~ For the Petitioner-Defendant.

83a

CLERK: The People of the State of Illinois versus Wil-

liam Cabrera.

THE COURT: You may all have a seat.

I’m going to rule on the Motion to Suppress Arrest.

The law is that an officer may arrest a person without a

warrant if he has reasonable grounds to believe the person is

committing or has committed an offense, Chapter 38 Sec-

tion 107-2C.

An examination of the evidence presented shows that the

police began investigating this matter on 2-12-81, and during

that investigation discovered the following information:

1) That Yoel Akeena was murdered by strangulation and

blunt trauma.

2) Traveler’s checks belonging to the deceases were

cashed after his death.

3) That the salesman made a photoidentification of the

Defendant as being the person that passed the Traveler’s

checks belonging to the deceased on 2-23-81 and ivid the po-

lice the picture was the same but the person that actually

passed the checks had a big scar on his neck.

4) Police went to the Defendant’s apartment on 2-23-8]

and the Defendant was not home. The police talked to a

woman manager of the building or someone in charge of

maintenance, a woman or something of that sort. They did

not attempt entry into the apartment, at that time.

On 2-24-81 the police were notified by the woman man-

ager that the Defendant was home in the apartment.

6) The police immediately go to the apartment. The De-

fendant opens the door clad in gym trunks. The police ob-

served a scar on his neck and arrested the Defendant without

a warrant.

84a

Clearly probably cause for the arrest of the Defendant

was present.

Now the expectation of privacy in a private home is pro-

tected by the Fourth Amendment and warrantless entry with-

out consent may effectuate an arrest and may be justified

only in exigent circumstances.

In determining whether entering into a private dwelling is

reasonable based on the facts and circumstances known to

the officers at the time they acted, cases have held a variety

of factors should be considered by the Court in arriving at a

determination as to whether exigent circumstances exist.

These cases I have reviewed and the factors include the fac-

tors such as whether a grave offénse exist particularly a crime

of violence; whether the suspect can be believed to be armed

or had exhibited signs of violence which give rise to a clear

showing of probable cause.

4) A strong reason to believe the suspect is in the prem-

ises being entered.

5) A likelihood of escape of the suspect.

6) Whether the entry is forceful or peaceful.

7) The time of the day or night of the entry.

Now, I would point out that whether the police had time

te obtain a warrant is important but it is not necessarily con-

trolling in this matter. Cases have held that in the past, Peo-

ple vs. Davis held that the test is not whether it was

reasonable to procure a warrant but whether the search and

seizure was reasonable. The evil that is repugnant to the

Constitution of the United States and the Constitution of Illi-

nois is the unauthorized entry into a home to effect a war-

rantless arrest.

There is still the question that a line of cases following

Payton deal with traumatic forceful entry into homes.

85a

Now the testimony at the hearing shows two versions, the

Defendant’s version that he was in the bathtub when the po-

lice officer’s arrived in his bathroom and the version of the

in and the Defendant acquiesced in that.

Now, in reviewing the factors that are present in this case,

first off a grave offense did exist here, a crime of violence, a

crime of murder. Whether the Suspect could be believed to

be armed or had exhibited signs of violence, that is present,

blunt trauma and strangulation, cause of death.

Whether probable cause existed, a clear showing of prob-

able cause, that is the standard. There is no doubt a clear

Showing of probable cause existed. There is strong reason to

believe the suspect was in the premises being entered, that

was present. The clerk or the manager had called the police

and said the Defendant is home. He is in the apartment.

The likelihood of scape was suspect — nothing there at

all. We know nothing about that likelihood.

Whether entry is forceful or peaceful. The evidence here

indicates the entry was peaceful. I would note that the police

did not attempt to enter the apartment on the 23™ when they

went to the Defendant’s house. .

Now the Court is able to take into consideration infer-

ences from testimony. I do recall specifically the officer tes-

tifying that on the 23™ he went to the Defendant’s house to

arrest him. I recall that specifically. I recall that he said he

went there on the 24” to arrest him. How, that is the crux of

the problem in this case, as to whether that intervening 24

hour period gave rise to these Officers to get a warrant.

The Court heard the testimony in light of everything else

that the witness, that he was identified, the picture of the De-

fendant. The witness said this is the person but he has a big

scar on his neck and not until the 24” when the police en-

86a

tered that apartment and saw the Defendant standing in his

gym trunks did they have absolute confirmation that this was

the individual that the witness at the store had identified.

I cannot believe the Defendant’s testimony that he was in

the bathroom, at the time. Therefore, it is clear to the Court

that exigent circumstances existed and accordingly the arrest

of the Defendant without a warrant is constitutional, reason-

able.

Motion to Suppress the Arrest is denied.

Are you ready to proceed on the Motion to Suppress the

Confession?

MR. RAAB: We are ready, your Honor.

MR. LYSTER: We are ready.

MR. RAAB: The State would call Officer Sappanos.

(Witness duly sworn).

DETECTIVE THOMAS SAPPANOS, called as a wit-

ness on behalf of the Respondent, having been first duly

sworn, was examined and testified as follows:

DIRECT EXAMINATION BY MR. RAB...

Q. Mr. Witness, would you please state your name and

spell your last name.

A. Detective Thomas Sappanos; S-a-p-p-a-n-o-s.

Q. By whom are you employed?

A. Chicago Police Department.

Q. What is your assignment?

A. I am assigned as a detective to Area 6 violent

They should have had an arrest warrant, they should have

investigated the evidence during the two following seizures

and let the State proceed with whatever case they have in this

matter without those items.

Thank you.

MR. BARNETT: May I make a few comments?

MR. LYSTER: Judge, do we get over 20 minutes?

THE COURT: Sit down. I have heard the evidence and J

have had the Opportunity to assess the credibility of the wit-

nesses during the numerous days of testimony that we have

heard and in reviewing that testimony and in listening to the

witnesses testify I do wish to make a few comments about

the »redibility of some of the witnesses.

There are here before the Court totally different stories.

One story told by the defendant was substantiated in small

part by the witness that he called, an ex-girlfriend, a woman

that was living with him at the time when this incident oc-

curred. The other story, a Story told by a large number of

professional police officers, much comment was made about

the number of people that testified for the State’s case. The

Court is aware and is of the opinion that part of that was be-

cause of the vague allegations made in the motion to suppress

and this Court’s willingness to give the defense every oppor-

tunity to prove those allegations.

The Court listened to Mr. Cabrera and | watched

Mr. Cabrera testify and Mr. Cabrera told this Court a story

that if believed would indicate that he was tortured for some

37 hours, numerous Slappings, hittings in the Stomach, the

back, the face, stranglings by these police officers. He also

testified that he was not given anything to eat during the en-

tire time nor to drink and he went to the washroom one time.

That testimony was refuted by another — by police officers

who testified that they did give him food, they did give him

something to drink, that he was taken to the washroom.

Mr. Cabrera’s story was corroborated somewhat by

Mrs. Lopez, the young lady who came here and shed some

light on what may have occurred to substantiate

Mr. Cabrera’s testimony. Now, Mrs. Lopez testified as to a

88a

number of things. The police testified as to a number of

things. If Ms. Lopez is to be believed then Officer Grogman

is not to be believed. Detective Grogman. She testified that

she was in the car with two officers and they returned to the

police station. Now, I heard a lot of testimony. All of it can-

not be true. It is the Court’s job to watch people, tc listen to

what they say and to determine in the Court’s mind whether

or not a truthful story is being elicited. One of the items that

did disturb me from the very beginning was the length of

time that the defendant was in custody before the statement

was taken. But that is only one of the factors that the State

has to consider as to whether or not a statement is voluntary

or that actions during that period of time are voluntary.

Now, I heard a lot of testimony concerning the consent to

search, the statement that was given by the defendant and I

find that, as Mr. Lyster pointed out to the Court, that a search

warrant should be obtained. I find that the defendant volun-

tarily executed a consent to search. I further find that and the

Court is of this opinion, in assessing the credibility of the

witnesses, watching them on the stand and listening to their

stories that this length of time was somewhat facilitated by

this defendant. I believe that he agreed to cooperate, to take

the lie detector test. I believe that he told the police one

thing, that he went and showed them where Ruben Lopez

lived and in short I find that the defendant’s story that he told

here yesterday on this witness stand for some two hours to be

totally unbelievable. The evidence admitted, the picture Ex-

hibit 1B shows absolutely no marks on that defendant’s neck

or face nor does he look like a person who has been abused.

Now, I realize that pictures make things look better than they

actually are sometimes. However, that’s just one little piece

of evidence that I have heard.

Therefore, based upon all the things that I have said pre-

viously, I am denying both the Motion to Suppress Evidence

and the Motion to Suppress Confession.

89a

Now, are there any other pending motions?

MR. BARNETT: Not that I am aware of, Judge.

** *