Respondents Brief — Moore v. Illinois

Supreme Court brief1972

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Service of the within and- rece

Lye of 4

thereof i$ hereby admitted this.-..

of September A.D..1971

| Supreme : Sa

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> Mo. 6955001. -

> “LYMAN A. MOORE,

Be esa : 3 2 bs. ea

PEOPLE OF THE STATE OF ILLINOIS, .

ON WRIT. OF CERTIORARI TO THE

SUPREME COURT OF ILLINOIS

” BRIEF FOR RESPONDENT

| WILLIAM J. SCOTT,

Attorney General,

ate et ee,

JOEL M. ELAM,

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INDEX _

es, aes ae oe

. Questions Presented. For Review .......... Shesdivn oe

Statement Of The Case’ ....... weneua aes Ae ee

- Sumniary Of Argument | peaek suiiaae tar dibgie press +

_ Ellison v. State, 432 8.

| Argument:

; L ‘There. ‘Was No Concealment Of Material | Or

te a Exonerating Evidence By The. ONS Sass, + <8

TI. Petitioner Was Not Denied Due Process Of

‘Law By -The Admission Into Evidence Of 2 See

Sawed- Off. Sixteen Gauge Shotgun - peat

a |) The Selection Of The Jury In This Case Did

Not Violate The Constitution Nor Did It Af- .

fect. Any Substantial Right Of The Petitioner 22°

‘A. The Opinion In. Witherspoon v. Minois

‘ “ Shogld Be Clarified Or Reconsidered ... 22

£. The Particular Voir Dire In This. Cent:

Was Not-Conducted In Violation Of ~~

Witherspoon Decision .......... oge cud |e 34°

. Conclusion °....:,,...... ‘eesewes De ee 35°

Fae - AvTHortties Crrep .

acs Se ae

Brady ¥. | Maryland: 373 U.S. 83 (1963) ....::....7, 9 15

Brent v. White, 398 F. 2d 503 (5th 1968) .... 26°.

@ Bumper v. North Carolina, 391 U S56 6 . .28, 31, 35

. Chase v. State, 415 P. 2d 203 (Okt Crim. 1966)...... &

- Desist v.. United Stats 29 U.S. 244 (1969)........ < e

V. 2d 955 (Tex. Crim. 1968)...

1, oe

- .*

« 2s r

> ¢ ‘

ae Oe SF nL Ea eM, NE TN a

d spies hap ‘Rosh nk ates doe: we vi7i8 bit aigor Sint

Pie Ts ° 1 a _

“

“Gada: Fel 455 P, 2a 699 ctl Cr. “1969) 96 *,

| Garto v. State, 454.S.W. 2d 522 (Mo. 1970)...... as .

- Gilesty . Me ryland, 386 U.S. 66 (1967)... 4.2. y.sse de 16

~-Gottsch 15 Sfate, £5 Wis. 2d, 285, 172 N. W. ad 688 | .

? 1969) i ey Barer ps ane Cv acuts ceeed' ceibeee 9.

, Harris v: State; 450 P. ‘Bae857 (Okla. Cr. 7969) were 49"

« -Inre suderson, 69 Cal. 2d 638, 447 P. 2d 117s ‘2

1 LMM soho Naghie ewtinua Bis nae es ar A ie

Inre ‘Arguella, 71 Cal. 2d 13,452 P. 2d 921, (1969)... ‘or

2 An re sBrookiEstate, 8. mh. 2d 361, 205 ‘N. B. 2d 435

a 41965) (Sika seas » aK ite Ux dea ba’en'y woes ap 0848 = 27

In ré Hill, 71 Cal. 2d 997, 458 P- 2d 449 960). 1. 27

In re Hillery, 71 Cal. 2d 897, 457 P. 2a 369 (1969) .. -

In re Seiterle, 71 Cal. 2d 698, 456, P: 2d 129 (1969)...- 27 ts

~ Johnson vy. Bennett, 386 F.2d. 67% (Sth Cir, 1968) 17

Jase ph v. - State, 442 SW?) 2d: 307° (Tex. Crim. 1969) -. 26.

a ’ Lokos vi ‘State, 221 ‘So. 2d 689. (Ala. 1969). err so a 26.

“Miller Vv. Pate; 386 U 8. 1 (1966) ates tate Eevee inasse oe

Miller v. Pilates: 33 mi. 2d 514, 211 N.E. 2d 733) .

(1967). pave ar ee ca k Ceca 4h aalan 4) Dee} eee ee a> 20

~” People v. Aguirie, 158 Cal, App. 2d 304, 329 P. 2d’ 478. |

SUES |. :\.) Darr eC Oe ees 21

ee People VY Reltarwski, 71. cae ren ‘2d 16, 162 P. 2d. 59

ke (| eee sehr ere et rere KS cactaeews rere

aan Péoplev. Coogler, mae Cal. 2a. 153, 454 Pe 2d 686 oe

.*. (1969)... ect ate Pet haa ok TS 2

| ‘People’ v. Gardne r,.71 Cal. 2d St8, 457 P. ad O75: 4

(1969) LS ek. bia nti, baeuhadih ox etedca tg akask oy

' People. Goodridge, 70 Cal. aa 824, 452°P. 2d 637 © |

PhP (1969) eee eee tebe ee eee ens ere

. People v. Hall, 19 Mich, App. 95, 172 N.W. 2d 473

oD eee ee jo unin: sey cing anes dag ele 19

ctv ot

° ¥.:

iii.

People \ v. Hill, 70 Cal. 2d 678, 452'P. 2d 329 (1969)" 33

_ People v. Hobbs; 35 Til. 2a 263, 220 N.E. 2d 469 (1966), a

. cert. den. 386 U.S. 1024.12... Pl eimerceee banks 25°

: ‘People v. Jackson, 9 TL 2d 484, 138 N.E. 2d 528 |

WP MMIMEE cohqets 886 cena psédiesc's daca ace eee” 18

People v. Johnson, 35 I. 2d 316, 221 Piaal 2d 497

i: Seegercne aes hvb i Mieedsah bon ne a aad bidaa ko cae 19

"People v. Lane, 56 Cal. 2d. 773, 366°P. 2d 57 (1961) 19

People v. Lenhardt, 340 11.538, 173 N.E: 155 (1930)... 19:

"People v. Lindsay, 227 se App. 2d & 38 Cal. Rte.

156 (1984) js e.<ce ei cae tae 19

ae People v. Lumpkin, 2 27 Mich. dbp. 143, 183 N.W. 2d 384 &£

POIDTAY so cboe ba oy can newt eon eon uc eae! 19° E

. People v. Mabry, 7 a “Cal 2d 430, 455 P>2d' 799 wa oe

(1969) «12... ae ikea gh ceeh vakx matin tiveel culos 3B G

- People v. Magby, 37 Tl. 2a 197. 226 N. E. 2d 33 (i967)... 19 7

_People v. Moore, 35 Ml. 2d 399, 220 N.E. 2d 443 (1966), . 4

cert. den, 389 US. | ore nome Pent wll « cca 18, 21°; f

"People ¥*. Nelson, 224 Cal. App. 2d, 288 36 Cal. Rptr,

‘SOG HORE) Bo ncn stente canae Min a oct. 2 19

People v. Nichols, sient Cal, pene 2d 320. 340, P. 2d: 727 ae

* (9988) 2.3... eee eee antaaas ye eee 19

“Pe ople v. Ostrand, 35 Ml. 2d 5 220, 221 N.E. 2d 499.

(IME) ini yeas tutte «, PTT en ee eee en 20.

- People v. Osuna, 70 Cal. 2d 811, 452 P. 2d 678°(1969).. -.

_ People v. Robles, 71 Cak 2d 924,-458 P. 2d 67 (1969). ; .

.- People v. Sheets, 251 Cal. App. 2d 759, 99. Cal. | Rptr.. ae. whe

08 CEU ini gah oes Sees ea eter ie cot bec es kane 22

| Peoples Smith, 413 Tl. 218, 108 NE. 2d 596 (1952)... 18

“Reople v. Stanworth, 71 Cal. 2d 820, “457 P: 2d 889 9

~{19G9) us... Seg UmU MEK AEN OKE dacs oes au eeeavk - a

* People v. Trice, 127 Ill. yp = 310, 262 N.E. 2d 276 a .

_ (1970) et axces wanes whee ane ks oes eigiacs oy 19.° - J

= e ¢e °* e =

* ° . :

. . x ad .

- . . 7 ° . . ;

i . : . -

. ° ad . .

°. . . . . * r , . : . . <

. .

. :

4 | iv.

e People v. Vaughn, 71 Cal: 2d 406, 455 P: 2d 122 (1969).. 33

+ People v. W bia lane 71 Cal. 2d 1061, 458 P. .2d 479

a OOGIY s o 4 sec oe yee ce awe tease Ce pcsenensasa nieeceel, 38

4 People v. W rishington 11 Cal. 24 1170, 459 P. 2d 259

> ee ¢ |) Dn no . 32

. People v. Witherspoon, 36 Ill. 2d 471, 224 NE. 2d: 259° |

eee es ere eee apan cote isaaes yn enatensetasees 28}

People v. W right, 30 Ill. 2d 519, 198 N.E. 2d 316 ( (1964) 18

Peoples v. "Hocker, 423 F. 2d 960 (9th Cir. 1970) . 9

-Pittmanv. State, 434 S.W. 2d 352 (Tex: Crim. 1968). 26, 27

Pryor v. State, 449 S.W. 2d 482 (Tex.-Crim. 1970)..... 19

Scott v. State, 434 S:W. 2d 678 (Tex. Crim. 1968)..0..5 27 |}

‘Shiflett v. State, 38 Ala. App. 662, 93 So. ‘2d 523 | |

(1957) Lehlececcucecctecudeecatengestavseegess 19, 2

bps oncer v. Texas; 385 U.S. 554 (1961). ........8 0.668. 2 .

State v. Be njamin, 234 La, 49, 222 So. 2d 853 (1969)... 96 |

State v. Dillon, 161 N.W. 7 ei (Jowa 1968)}..0.¢.....°.19

State v. Forcella, 52 N.J. 263, 245 A.‘2d 181 (1968) . . 26 | |

State v. Mays,7 Ariz. jem 90, 436 P. 2d 482 (1968). 21 |

State v. Pace, 830 N.M. 364, 456 P. 2d-197 (1969)..... we OF,

: State v. Peele, 7d Wash: 2d 28, 448 P. 2d 923 7

VIGO) acca no tse Kah eae bh ge heer ee ress s'ss mew seeee 1

State v. Ricks, 242. La. 823 , 138 So. 2d 589 (1962). 19

State v. Spence, 274 N.€. 536, 164 S.E. 2d 593 (1968) . 26

State v. Turner, 253 La. 763, 220 So, 2d 67 (1969). . . .26, 27 “

¥ Strickland v. State, 226 Ga. 750, 177 S.B. 2d 238 | |

~.° Stroud v. United States, 251 U:S. 380 (1920)....:... 2 HY

Swain v. Alabama, 380 U.S. 202 (1965)...... = seen 33°

Thomas Vv. Cagwin, 43 Ill. App. 2d 336, 193 N.E. 2d 233. ah:

(1963) et Serres Pere er errr rT 20. |

Turberville v. United States; 308. F..2d 411 (D:C, cir, f.

1962 ), cert. den. 870. US. WG: faves Fetus sQiness” @ Y

United States ex rel. Fein v. Deegan, 410 F. 2d 13 (2d

°V.

|. Cir. 1969), cert, den. 395 U.S: 935, ...05.0.0..... 9,16

United States ex rel. Felton v. Rundle, 410 F. 2d 1300 {

(8rd Cir, 1969) 0. cca eleee 9 .

United States v. Keogh, 391 F. 2d 138 (2a Cir. 1968) 15 ff

| United States v. Puff, 211 F. 24.171 (2d Cir. 1954) .. 25 b.

/ Witherspoon ¥., Illinois, 391 U.S. 510 (1968)...... ~ 7,92

Yates v. Breazdale, 402 F. 2d 113 (Sth Cir. 1968)... 26

: ae . Statures - a

-} ‘Til. Rev. Stat. 1963, Ch. 38, Par. 115- A(e)..3 bce peus 34

| Pa. Stat. Ann. Tit. 18, §4701 re) er menses ~.. 26

| ; a : _ Miscetiangous

1 W harton, Criminal Ev idence, $ 366 (11th ed. 1935) -. 21 |

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098 yen 8 to Se AON RPL te LIE: ES PALER PAM ENE TSS 2 : z ; : “ , oe ‘ ’ iii

_ IN THE

Supreme Court of the United States

No. 69-5001 “

LYMAN A. MOORE,

PEOPLE OF THE STATE OF ILLINOIS,

aS)

ws.

ON WRIT OF CERTIORARI TO THE —

SUPREME COURT OF ILLINOIS

BRIEF FOR RESPONDENT

QUESTIONS PRESENTED FOR REVIEW

Whether; during petitioner’s | trial for murder, any

item of exonerating or material ev idence was kept

F from petitioner.

Whether the. entrodaction. ents evidence of a’ sixteen

gauge shotgun deprived petitioner of a fair trial

gauge’ shotgun killed the victim.

Whether prospective Jurors were excused ‘for cause *

in violation of Witherspoon v. Illinois, 391 U. S. 510.

Whether, because. of ambiguities in the holding,

. -Witherspoon vy. Illinois, 391 U.S. 510; should. be re-

‘considered or clarified.

Petitioner,

Respondent,

_ where there was no conclusive evidence as to’: what. - |:

PORE Sh SE Co oe

‘ _

- ‘shoot you too.’” (R. 529).

| | STATEMENT OF THE CASE

On ‘April 25, 1962, at approximately. 10:00 P.M. nas

Moore, ‘petitioner hictein, and a companion were drinkiae

in a tavern owned by Bernie Zitek in the village of

Lansing, Illinois. Moore began using profane language

and, as a consequence, -Zitek ejected him from the prem-

ises ((R. 474-477). Petitioner’s companion was a dark-

- haired man, wearing a mustache and described as being

- about five feet. ten inches tall (R. 509). Present. at. this

time ‘were Patricia Hill, -a waitress, and approximately

seven ‘other customers. The petitioner was positively |

identified by Mrs. Hill as the ejected patron (R. 475).

One hour later the petitioner returned to the tavern with

a ‘shotgun. He-approached the bar, aimed the gun at. |

Zitek and fired. The blast struck Zitek in the chest,

‘killing him (R.- 482-484). As petitioner fited | ‘the shot

-he was again observ ed by Patricia Hill, who later posi-

tively identified him as the murderer (R. 484). He was |

“also: identified by another - ‘eyewitness, Henley Powell (R..

525-526). The lighting conditions in the bar were ‘good,

-and Mrs. Hill: was. ont six feet from the petinoner (R. i.

— 483, 486). °°

After killing Zitek,: sestioner fled the premises, pur

sued by Henley Powell. (R. 527). Powell’s pursuit ended »

when he was warned by petitioner’ not to come any

“further or he too would be shot: “Then he started hol-

lering at me and says, “‘Don’t come any further or Til |

“Rh” before to the original transcript of proceedings |

at die s trial. |

303

Two days later. (April 27, 1962), at a different tavern

known ds the Ponderosa Tap, a. man ‘known as “Slick”

bragged to one Virgle Sanders that he had -shot a bar-

tender in Lansing (R. 087). Sanders ideritified petitioner = ©

at trial as the person: he spokexto in the Ponderosa Tap. F

:(R. 578-579).. William Joyce, the bartender at the Pon--

_-derosa, identified petitioner as the person with whom

Sanders conversed, in the tavern on April. 27, 1962 (Ro

-——-

555). Petitioner’s companion on that occasion was

- “another fellow with dark hair and a mustache” (R. 561).

Petitioner told Sanders and Joyce that he and his com- -

panion needed a ride ‘to Harvey, Tllinois;- and Joyce ac-

comodated, arranging for Bob Fair, owner of the Ponder-

osa Tap, to give pétitioner a lift (R. 562-564). Bob Fair

_ gave petitioner and his companion a ride to Harvey. (R-

603). Fair’s description of petitioner’s companion matched

that given by.William Joyce and Patricia Hill (R. 603)

and Fair furthér indicated that this individual’s name

was Barbee (R..603, 605- 606). During the trip to Harvey

either Moore or Barbee—it i is not clear from the record

which—said “well, if we hadn’t had €hat trouble with

the bartender in 2 EEE we'd have been all. right” . (R.

— 606).

‘On October 31, 1962, a Chicago police officer was on

patrol when the occupants of a 1957 Ford automobile |

fired a shot and then fled from the car (R. ‘623-624). :The

ear was staked out. and a search of the area was con-

ducted. A fully loaded 16 gauge. shotgun was found in

the oa (R. 630). ~ Registration papers . found -in.

the car. indicated ‘ownership in Jerry Barbridge. Other

papers found inthe car bore the signature of Jerry Bar-

bee (R. 654). Later, while the car remained. under sur-:

Véillance, two men -approached it and started to -enter.

Rows 7

‘ss RRA tase

‘killing. (R. 865, 87 8).

J. { =

/ ——. .

‘One was Lyman Moore; the other a dark-haired man

wearing a mustache—Jerry Barbee (R. 684, 689). Both

were arrested. Xe

Petitioner’s defense was alibi and’ he produced two wit-

nesses to that effect. The’ first; Alex. Koxhallari, was a

bartender at a suburban country. club (R. 746). He testi-

fied ‘ that petitioner was paid for working as a- cocktail

waiter on the evening of April 25, 1962. On cross-exami- .

nation it was established that the witness had: made a

prior statement wherein he stated. that he didn’t remem-

ber. if. petitioner had been at the club that: night (R. 757-

760). Herbert Anderson, the manager of the country

elub (R. 165), testified that petitioner was an employee a

)

_ of the club but was unable to: say that he had seeri Moore

on the night of. April. 25, 1962 (R. 173-777)? The only

other ‘défense witness ‘was Donald O’Brien who + was

playing. cards in the Zitek tavern at the time of the mur-

der .(R. 788): He testified that petitioner was not the

man who was ejected. from ‘the tavern by the deceased -

(R. 793). Donald: O’Brien was, drunk at the time of the

‘The jury found the petitioner iniilty and: recommended

_ the death. penalty (R. 1003). In a hearing on aggrava-:’

tion’and mitigation the petitioner’s efforts to reduce his’

penalty f failed because of, wad alia, -his five pres felony |

convictions (R. 1010-1012):

(1) 1946, lareény, one to’ five years:

(2) 1949, larceny, ‘one to ten years;

2. PepieeotieT tmsuccessfully offered the same alibi de- -

efe-an earlier trial \for a different, armed robbery.

See People y. Moore, 35 TH. 2d 399, 406, 220 N.E. 2d !

443 (1966), cert. hanes 389 U.S. 861.

7 7.

(3) 1957, bank robbery,' seven years;

. (4) 1957, Dyer Act, two years;

(9) 1962, armed robbery, twenty to forty years.

The sentence of the: court was death (R. 1017).

Subsequently petitioner filed a petition ‘ander the Illi-

nois. Post Conviction Hearing Act (Ill. Rev. Stats. .1969,

Ch. 38, Art. 122) and an evidentiary * hearing Was con-—

ducted. There Virgle Sanders’ was asked for the. first

time whether he had given a statement to the police and

_ . Sanders. readily admitted that he had (R-P.C/ 121).

.Infhis statement given April 30, 1962 Sanders

said that he had met. the petitioner six. months prior to~

the ‘conversation at the Ponderosa Tap. Sanders could

not have met the petitioner when he said he did because

| Moore was, serving a federal prison term af the time (Pet.

Ex. No. Pp A: 304)? Moreover, one William Thompson,

- who w as acquainted with a local resident named “Slick,”

told the. police that Lyman Moore did not resemble the

man known. to him as “Slick” (R.P.C. 39, 63, 76,-84)2

A bartender’ who also. knew “Slick” told the police that

he could’ identify “Slick’’ but was never ealled for that a

purpose (R.P.C. 38), These facts were not known to

the’ defense at the time of trial. Neither were they

known to the prosecution, and no ore ever requested ‘their’

‘production - (R.P.C. 204, 347).° The prosecutor’s entire file

Was made available to defense counsel at Bee time of trial |

ake 201). <a oe |

“Sc 4A” refers to the Abstract of Record filed by pe-

_ titioner in the Supreme Court of [linois.

Be a: | id refers to the. original transcript ,of peti-

, Goner’ s post-conviction hearing. :

bie)

‘

Henley Pow testified: at the trial that at the re of

the erinie. he: could see the front door of the tavern when

Moore walked in with a weapon (R- 526). Officer Koppita\

testified that a sketch he made showed Mr. Powell sit- \

ting in a northeast direction (R.P.C. 269)—away from the

- door—bit also stated that it didn’t matter: beeause all of:

- the people sitting at the table had an ine view of °

the entire crime (ipP.C : 269). Further, h@®said “My

‘diagram télls which way the people. were | seated, not

which way they were looking” (R.P.C. 273). At the

trial, ‘the defense ever requested any information from

(Officer: Koppitz ‘when he testified. His diagram (Pet:

‘Ex. No. 5; A.,397, 398) 'was not inthe prosecutor’s ile

_ nor did the defensé see it at trial.

The trial: judge ruled that ‘the defense. had ‘failed ‘to

meet its: burden of proof and (had not shown any sup- “

pression of evidence or any use of false testimony (R. PC,

379-381). ies ‘ a aie. ie

. ”

On appeal ‘the denial of post-coriviction. relief was af.

firmed by the Supreme Court of Illinois. Cerforart was |

eranted on June 28; 1971.

_- SUMMARY OF ARGUMENT | we

A .

The issués ifi this case .are grounded upon aliggations |

that e prosecution knowingly ‘suppressed various. ifems

of material. evidence © and thus’ deprived the pefitiorler _

of a fair trial, in violation of the ‘due process clause of

baie fourteenth amendment. | ; cutee

\ These allegations are cect ineibistuntiated by the

record of the -trial or by the record of the later pro-

a ceedings | upon petitioner’s request, for post conviction

relief. . Contrary, to petitioner’s argument, the complete

record clearly estahlishes the State’ s compliance with the

standargls enunciated: by this Court i in Brady v. Maryland, °

373 U.S..83 (4963). The petitioner's ‘trial was fair and |

: ‘completely satisfies the requirements of due process.

' And further, the admission into evidence at trial of

' the sawed-off sixteen gauge shotgun which’ had been in

the petitianér’s. possession at the time of his- arrest. was.

_perfectly propér and consistent - with -the established.

“practice - in Illinois ‘and. In several other “jurisdictions.

There’i Is no error.

Neither was 'there any cnsutitatioeel- violation in the

selection of the jury which tried’ the petitioner. The .. :

_ Fecord reflects that the voir dire examination of prospec-

tive jurors complied -with the » apparent standards of

Witherspoon v. Illinois, 391 U.S. 510 (1968) and violated

no substantial right of the petitioner. In view of the.

absence of any infringement of the petitioner’s federal -

: constitutional. rights, the respondent de te this + Court

* to affirm the decision below.

nee

SERA Se : hee r A

PECL IEG ABE CREE SMP ALA A TS AS

_- THERE. WAS NO CONCE T OF MATERIAL OR

EXONERATING EVIDENCE BY“[HE STATE.

Petitioner contends that there was an unconstitutional

concealment of six items of exonerating evidence at trial. ~ ay

The facts allegedly: concealed areas follows: . .. °° .”",

¢ od PY

_1.: Virgle Sanders gave a written statement to the

' Lansing Police 4vhich stated that he . first mek the

| man‘ knofwn'as “Slick” in’ Wanda and Del’s tdvern about —

~¢. six menths prior to the murder. ; i. |

9. Delbert Jones, the owner of “Wanda and Del’s.

” told the police that he could identify. “Slick” but was

never called for that purpose.” — Ty aes

- °3., Soon after Virgle Sanders supplied the name.

“Slick”? to. the Ransing Police, .a suspect “named

* James Ey “Slick” Watts was, apprended~ and photo- °

~. graphed. , ee a :

- 4.. William’ Thompson, who. was- acquainted with,

a man named “Slick”’. failed to. identify the defend.

_ ant-as ¢hat than. ©. eos oe

5, After the passdge of twenty-five months -Virgle

Sanders saw. Lyman Moore at trial and observed that

the man he knew as “Slick” was 30 or 40 pound®

heavier than the defendant.

«! .

6. , The. Lansing Police.

file contained a diagram,

entrance. through which thé defendant passed:.-.

| Undoubfedly; any individual: circumstance or set of ,cir:

cumstances which exculpate or tend to diminish the qual-

ity and weight of the prosecution's ease -can bé said to’

. be relevant and can not be. knowifigly withheld from the

drawn by.a Lansing officer, that ‘would hdye shown’ }

that Henley Powell was seated- with his back. to the ..

qe > : _

defense. "Bowen: ieenal yeneralizations on criminal dis-

covery are of little aid in delineating the dimerisions’ of

~ due process an any particular case. It. is imperative to

keep in the mind this €ourt’s mandate in this regard: -

' We now hold that the suppression by the prosecu-

‘tion ‘of evidence favorable’ to. the accused upon. -re-

‘quest - violates. due wees where the evidence . is

ar material . fay

It AS agaiiiststhe tihove standard that the prosecution’s

- eonduet in the instant case must be measug@> A

r ae The claim by petitioner that he -was so liow i improper-

ly ‘denied access to the prior statement. of a witness is = —

particularly ill-conceived. . During trial petitioner's coun- *

sel ach se eral witnesses. if ‘they had given statements

to the police. (R. 506, 538, 611). Every witness who had

* gi¥ en such a statement admitted doing” so and thé state- a

ment was tendered. (R.507, 531, 606): Itis significant thay’

thre witness Sanders was not asked at trial if he had give,

a statement.to police. -Moreover, on the very first pecasion

‘ when the. question was put. (at the post- conviction hear- .

° ing), the -witness readily admitted giving a statement to

- the police and the. statement. was. er tendered tow

a petitioner. (R.P.C. 22k ae ae

The record below “also shows that the Agistant State’ S

Attorney: at trial displayed his entire file to the defense

- (RPC. -201). Thus any information which the petitioner

“Tow claims material was not. in thei direct — of.

: : =

»5. Brady Vv. Maryland, 373 US. 83, gg. United States

. “ex. .fel.- Felton. v. Rundle, . 410 FL 2d 1300, . 1306

(3rd Cir. 1969); United States. Tel. Fein v,.

Deegan, 410. F. 2d 13 (2d Cir. 1969), cert. den. 395

‘ US: 935; Goetsch v. State, 45 Wis. 2a 285, 172 N.W. 2d

ai (1969) ; Peoples Vv. — 423 F. 2d 960 (9th Gir.

970).

‘ : ee ;

Xs .t . ¢

PAR IRCN EA

Wap ee ee

= .

. a

= -

. +4

tion may inv ‘olve scores of | fruitless, leads. . é The search ©

| . ‘ae the phantom. “Slick”? in the présent ease is but am -

| & , example, - It is singularly riaive and unfair - -to impose

x upon prosecutors the responsibility. to interrogate police

officers in an effort to elicit facts which when viewed in

hindsight might have a marginally favorable hearing, on

ae the conduct of the, defense. .

‘ Unquestionably. ho’ prosecutor may engage in .knowing

+ suppression of evidence. However, the Constitution and

: the proper administration’ of criminal justice demand of

- the prosecution ” good faith and a quest for truth. They -

—_>.

do not ‘require an inquiry — into all the areas of. police

"investigation | with an eye toward preventing —possible os

oe inadvertent and immaterial omissions. ea ; :

been shown to be the case here.

produced no contrary conclusion.

;

= . os ‘

Admittedly police miseonduct. resulting in the ‘suppres-

sion of material ‘ev idence even without the prosecutor's )

knowledge eannot be. condoned.. This, however, has not"

Moreover, a state post-

conviction proceeding, . designed for just such an inquiry,

- It.is- submitted that there must. be a aan of intent _|

or knowledge before an unconstitutional suppression takes

- «place. The underlying standard of conduct at trial must —

be fundamental fairness.- Defendants cannot hope to ob-

tain’ * reversals upon subsequent findings of - minutiae in

the jproseentor ’ at. trial: Since there is no claim .of know aS

ing suppression by. the prosecutor of ‘any evidence, the ,°

: Issue devolves , to. whether it is, the obligation of a ~Prose-

_ euting ‘attorney to ferret out every conceivable piece “of

potentially impeaching evidence: that: may be contained

-.in- police - files. “The promulgation of such a-rule. is..

_ neither realistie nor necessary for the fundamental fair-

~ ness dufe every defendant. A major murder investiga-__

~ police files. ‘Virtually "every investigatory file will con- ’

“i this 1 is highly impeaching and ee The State can-

- worst, it ‘simply shows’ that Virgle Sanders, like many’~

people, is not Adept. at estimating - time. The peyod of.

. hearing defense counsel called’ Virgle Sanders’ attention

tain. some*ragmentary evidence which may, cast doubt on “ . :

the perceptive | abilities . of . witnesses.. Very ‘often such **

files will also tréy eal the existence of persons -who ma¥

have been suspected of, involvement at ‘One time. But

in the course of investigation facts are uncovered which

absolve e some parties and farther i implicate others. / {In the.

: gradual shift from investigation t -aceusation th e focus

- of guilt sliarpens to include only the y. ae Ire some

eases .the. sifting process eens Tere, the .

overwhelming evidence established Is yman Moore as that

. person:

When the decision ‘is ~made. to prosecute, 1 thie State’s Oe

Attorney has usually received -all relevant evidence: both

< inculpatory and exculpatory. Occasionally it will | happen

* that minor items of evidence will’ not be: turned ’ over

simply hecatise the police ° view them: as immaterial: Ps

Neither common sense nor the Constitution réquire a com- \.

plete amd detailed accounting. ‘of all police work on @ case.

The. defense has no right to such information and has

cited no ease to ‘substantiate such a claim. Bag we 2

| : Particular emphasis" has—béen—laid—on- ‘the fact “that’ =.

Virgle’ Sanders, unknown to: defense counsel, informed the gg 4

Lansing Police that he had first: met the defendant about = = ™

six. months prior to the murder. Petitioner claims that.)

not agree. © ,. .

Sanders was apasccasciay Ge error since ‘ivan Moore

was. serving a federal prison term at the time. At- the /°

six months was only a guess. At the post-conviction:

PAS AW EMA NAP RR

* tion (R! ©578.57 9) in the course of, which Mopre’said. that _

At the. “ post- conviction -hearing,. defense éounsel asked’ 4

; Virgle Sanders whether he had given the Lansing Police '

_ months prior to the incident at the Ponderosa Tap. San-

‘ders, ‘who has a fourth grade education, said that he 4

; only a. “rotigh. guess” (R,P.C. 104y, . In anspver * ‘to further

‘two, three months to nine “months. I oo ogeher

eae; P es : San or

+ setond source Of contention. springing — Sanders’ -

ee ted that the \person. whom lie, knew. as. Slick, and: that hé

’ first met “Slick,” it would have been impossible for Ly- .

man Moore’ and “Slick” to have beer’ the same person’ :

‘ : - - es i a ao * 7 . ° } *. af . . 2

eis . . z = e : at aid 3 ‘“ ‘ :

> ~~ «) *. s s . . y- j

> - : : ; i

4 - Ree fi : 2 : i x : ae

ties ° oe ‘ . . ; a

| a

: Oe + : : a : gah Lees

_ to the: incite’ at “the Pondaeoss Tap’ two. ‘days after the FA

murder. Sanders had testified at.trial that Lymda ‘Moote :

was present at. the tavern and that they had a “conversa- ;

it was “open season on bartenders” (R. 583). and that. he

‘had slot one-in Lansing (R: 587). In laying the fourida-

tion for Sanders’ relationship | with.Moore, the prosecutor ,.

asked Sanders. whether he had- known petitioner, before os

that day, Sanders replied that che: -had, ‘but -that he”

couldn’t estimaté how long he had known Moore (R, 580). .

a signed statement that jhe had met. Lyman Moore six ©:

could: not read the long hand statement (he can only.

read printed words) ‘and’ that. the ‘six’ month period was:

questioning, Sanders said, “. . . it éould have been from. .

comments to the Lansing Police entails a_-confusion of

identities . between the petitioner and a man named

“Slick.’”? At the _ post- conviction hearing, Sariders admit-.

had: met -several months earjier, wore. his hair differently ’

— (R.P.C. 134), was - heavier and did not: wear glasses .

“(R.P.C. 130). ‘Sanders, in answer to a leading -question, ~~

~ said that if Lyman Moore was in prison atthe time he :

(RPC. 132: 133). nn

aT eeeess.

Notwithstanding this, confusion. of ' identities, it is the ~

‘State’s view that Virgle Sanders’ murky recollections of.

a man, named “Slick” are irrelevant to his positive. identi-

fication of. Lyman: Moore ‘as,the man he knew and spoke =|

' with at the Ponderosa Tap. Sanders’ statements. are but-

, tressed by the ‘testimony. of two other men who saw’ him

" speak to Lyntan Moore at the: Ponderosa:*” The first,

William : Joyee, was the bartender. at the ‘Ponderosa on”

pny (R. 552, ‘Dd4- 555). ‘He testified that he served.

~ several drinks to Virgle Sanders and Lyman Mbore, and —

observed them talking (R. 561-562; 564). Joyce aco said

that ‘Moore asked him for a- ride (R. 562). Joy e ac-

eommodated Moore by arrangitig for a.ride with | bert

Fab, the owner of the tavern and: the second man ‘to

observé Lyman Moore speaking with Virgle Sanders: (R:°

562, 564,. 600-602). Fair drove.-Lyman. Moore and his

os companion to Harvey, Illinois (R. 602-604).:In the course ©

-of.the automobile trip to Harvey Fair heard one of them °

say, “Well, if we hadn’t had that trouble with the bar- 4

| tender in “Lansing, we'd have. been all right” (R., 606).

. “Thas, Virgle : ‘Sa : fusion ‘of identities: between

~ the “petitioner | and ‘the ‘ubiquitous “Slick” and when he « £

_ first met him, is ‘searcely material to. the facts. established. .

The proof that Lyman’ Moore and Virgle Sanders met and

spoke together.at ‘the Ponderosa. is: overwhelming. :

‘The same could he. ‘said of all the State’s evidence. In.

" ‘addition to the two eyewitnesses who saw the he. petitivner

kill. the bartender, a thi ss State that he heard

—Moore, ee about the baa Any further question a

ae ° a

ae _

‘ 6. ‘It is ‘relevant to note that neither of these two men.

- Were called as witnesses by defense counsel’ at. the post-

- convietion hearing. . i

> ° *2> \

ee ous

Side about Moore’ S identity i is dispelled by two ‘more tiaiahees:

_*.. who saw him speaking to Sanders at the time and place

"in. question. The capstone is found, in the off-hand ad- iy

ENA mission “made i in vale s automobile. :

Petitioner conterids that State’ witness Henléy - “Péwell

perjured hiniself when he testified that: he saw Moore .

to light until: after the trial, somehow proyes. ‘that Powell .

“was not facing the front door’ ‘but was ‘seated at a eard |

seen what he testified to seeing. ‘ Petitione Tages us.

_in this exercise in an_e

of defense, witness Donald-O’Brian who was. also ‘seated

atthe card table and testified that “Moore was not the

-* man. ejected”. from the tavern. (O'Brian, it will be. fe-

tnembered,y Was drunk and did not see ‘the actual shoot-

- ing). - Completely overlooked. in. petitioner’ 's commentary.

on-Pewell’s veracity cand the ‘importance of the “stp-

"- pressed” diagram -is. the. actual testimony of Mr. Powell.

. At. the time of the-murder he was playing pinochle’ with

_. ,three other, cyanea (R. 536). His position at the table

3 \ gave him: a view of the bartender (R. 526). Because he

+. eould not bid im the g he laid his hand down and was

Bees : looking toward the front door when Moore walked in

. (Re 526," 536). After the shooting he chased Moore but —

- - retreated when warned by petitioner that, too might be |

} - shot. (R.- 529). . As for the diagram, Officer Koppitz testi- |

“> fied: that it “tells. which way the’ people were seated, wot >

4. ~° which way. they were. looking” (R.P.C. -273). TRB ait.

gram dis¢loses nothing: that was mot brought out in

™ Bowell’: testimony at trial. ote

Pe enter the tavern and ‘shoot’ the. deceased; that Officer sf

_Koppitz’ Ss diagram of. the premises, “which ‘did not come -*

oe table ‘facing | in the other direction’ and could not | have —

snhancé the credibility —

“4

- f-

eo - the oes c

Tn afirming | petitioner’ Ss. cunihiion the Supreme Court of “

Tilinois was in total harmony with constitutional standards’

for eriminal discovery. © Ip, order to: constitute a viola- .

vs tion of due ‘process, favorable ’ evidence’ must be sup-2-—~e.

“pressed by the prosecution after it-has been .requésted

by the. defense. Moreover, the evidence_must be ; tial

either to/guilt or -to punishment B rady y Vv. Maryland, 373

“+ TS: 83:( 1963). o Certain ly-afiy of the items complained of -

here would not hf re disturbed the’ finding of guilt or

the sett fg.of .the death penalty. ‘The. fact that two

ggasi successfully identified Moore as _the killer

pee Sr ee Sree EN es uae sgt ee gee as

Nor does the failure to produce any: of the above. items:

come within the constitutional prohibition against the

. knowing use of false evidence. Miller v. Pate, 386 US.

| 11966). ‘No false’ evidence was

Sed. against the -defen-

4 __ dant.. Virgle Sanders” incorrect e imate. of ‘when. he first |

met petitioner. is not false evidénce. He spoke. the truth .

‘ according to the best of his. ecollection. A mistaken be:

f Sanders’ miscalculation (or .

lief is not perjury. ‘Eve

: vany of the other items complained of) could--be charac-

bes terized as “false _evidence,’’. they did not play -a “vital .

*@e

paxt in’ the ¢ Se for. the prosecution” as ait | by

Miller v:. Pa SP eee oe

: The ca Circa has explored the various standards

‘for reversal in cases of suppression in United States v.

Keogh, 391: F. 2d 138 (2nd Cir. 1968). The court Sacra

three categories: :

(1) - ‘deliberate sappression in whick- the court in- |

’ eludes “not merely a considered decision to suppress,

taken for. the. very purpose ‘of obstructing, but also a

M ‘failure to disclose evidence whose high value to the’ —

‘defense could not."have escaped the prosecutor’ s at- ea

’

— (pp. 146-147) ; "e : eee SSE eee,

ee “hae, oe

@Q)- pens ession. eis -the\ p yrosecution of ‘evidence ,

- favorable to the aectised ‘pan ‘request; ae

ae (3). and: “where hindsight ‘discloses that’ the: de-*

es tne ‘could have. put thé evidehee t to" ~not insignifi- .

-eant use” (p. 147 Je. f

In the court’s view: the first. two situations shoami es no!

difficulty. The third presents a problem. ‘The court con-

cludes that’ while. in some ‘instances relief ' should be

granted, the standard of materiality must be considerably -.

- *higher than. the usual. level of. probity required: for ad- |

- 3 - missibility, The State stibscribes to this analysis and sug-

* . +gests: that in this ease the evidence does ' not reach this -

high level of: materiality.’ HE ie . .

. *

It has never been held that the graaseation 's ‘duty to dis-

‘close extends to all evidence possibly admissible and useful

to. the defense. Nor has it been. established what. specific 7

degree of prejudice must. be shown. in order to warrant a _

' new trial. The cases, “however, indicate that insignificant ee

items of’ unproduced information will not overturn :

gonviction. The evidence suppressed i in Giles w Mar -yland,

386 U.S 66 (1967), is representative of the sort of with--.

held data, which has‘ produced reversals, In. Giles the —

State suppressed. evidence. which would. have severely

= "discredited the prosecutrix in a rape case“ The effect of «

ee the evidence would shave been sufficrent to show. that the. .

: “victim” of the’ rape was blatantly promiscyous and had

- probably - consented to, rélations with the defendants. :

a: i the effect of the "evidence in Giles and other cases

along ‘this line of decisions has been-such as would: have .

ro an . acquittal. or « ‘substantial reduction in sen-,

te 2 Gomaie United States ex rel Fein x. _ tea: 410 -

F. 2d: 13, 20 — Cir. 1969), cert. den. wy U. ~ 935.

ons

alt aes - eee SA Noah ee : : A \

‘ See Oe. t: . EN ae i

tence. Neither < of 7 théde ltain: Kani eee: sik in- the. spre- ¥e

" sent Gase. ‘to grant ‘reversal ° in. the instant” case would :

_ be an invitation to every defendant 4o\ search for. incon-- ;

‘ sisteneies - in’ the investigator’ s files long after. “his’ con- ‘4

-viction.. The impact’ on our. present. system. of criminal :

justice can only -be imagined. The Eighth Circuit has :

- pondered the implications in Johnson. v. Bennett, 386 F.

2d 677, 680 (8th Cir: 1968)°: nti a,

“TAI the. Suprerte Court cases setting ae con-. S

-yictions for want of due- proeess by reason of the re- “%

., ception ;of false testimony -are hased upon .the know-

“Tedge, ‘the prosecutor ‘that the testimony received

is‘ false oraknowledge that material evidence has been

suppressed. Such would appear. to be a proper limita-

tion to the: rule. If convictions could be set aside

years after they become ‘final merely upon proof. that

some .testimony of. a witness provéd. ‘to be false, there

-would.be no finality to convictions and, the a

a administration, of justicg, would be unduly. hampered.’’

Tn addition ‘to these policy . considerations, there re-

' niaihs the simple ‘fact that a fair trial was not denied —

the ‘petitioner, and no knowing suppression of "material

_evideneg. took place. ate wes ee

O25 te ~

Nee eee i. Be eee

. PETITIONER. WAS NOT ‘DENIED DUE PROCESS OF

-LAW BY THE. ADMISSION INTO EVIDENCE OF |

‘A SAWED. OFF SIXTEEN GaUGE SHOTGUN. se

‘The petitioner here. ‘claims that it was error: to admit

. ‘into’ evidence a’ sawed-off sixteen ‘gauge shotgun on the.

premise: that the deceased was Killed with a twelve gauge ©

shotgun. eae ee : he :

’

Pica 2

RS * s id .

- aE ts at 1 eM : 2:

® % ete * z oe

$ . . e ’ *

* Kaeo . - ?

4 ? “ k

Z :

Filan ipo BNR SD IARUSATING (i507 ag

- b .

shy toh sn Lalla ce naga Si alte ht

‘

a OR a

To ang See

it iwnwell po eae: jaieiale in, * Biinois* i sine: |

: ‘where? that circumstances of the. arrest inay be brought

: ‘before the jury. Here shots were fired and: the police

saw men fleeing from a car (R. 623- 624). Petitioner - “was

later arrested ‘entering, the very same car (R.. 682). Tn.

. ithe back seat ‘of the car was & loaded sixteén wauge shot-

* .. gun (R. 630- 641). | 5 ett 7

”- The Hhinois rule ‘is stated in Pee v. Smith, 413 Tl. |

218, .221, 108° N.E. 2d 596, 597 (1952), where: it is said:

“a. , “[W]eapons found: in a defendant’s possession or:

| * control at the time of¢-his arrest’on a: murder charge -

- may ‘be the gases of © tegtimony Spertaining fo the

details of the arrest. oe Pe

Thus, the shotgun was admis sible purely | on 1 the ean

that is’ was clearly in constructive possession of those

arrested.! ° It was. also: admissible on independent grounds.

‘of relevance. The only. evidence in the record as to the

“weapon | in the crime was medical testimony that a shot- *

gun was used. The witness, however, ‘stated that he did . -

not. know what size shotgun ,was inv olved (R. 573). The*

_.0 nly~other evidence was a stipulation offered by the -de-

_Aense at the conclusion of their ° case that if a certain

. 8. ‘Eu g: People v. Wrig But, 30 Tl. 2d 519, 198 NE. od

316 (1964) ; People v. Jackson, 9 Til. 2d 484, 138 NE. 2d

= eae (1956); People v. . Trice, 127 Il. App. a 310, 262

N.E. 2d 276 (1970).

Zs E.g. People v° Beltowski, 71 -Cal. App. 2d 18; 162.

2d 59. (1945); Chase‘ v: Site 415, P. 2d 203. (Okl,

7s 1966);

10. ‘Concerning petitioner's previous “relationship with

the sixteen gauge sawed-off shotgun see People v. Moore,

35 IIL: 2d 399, 220 N.E. 2d. 443 (1966),. cert den: 389-U =

86). =)

police. technishgn was eet he yodla testy that in his

'. opinion -a twelve “gauge shotgun ‘was used. (R.° 853).

- Hence, _ no conclysive’ -proof was ever adduved to6 show -— ©

. what gauge shotgun. was:used to execute Bernie, Zitek. ~ §

“The general rule has always. held. that is is proper to

admit. into ‘evidence: any weapon ‘found within ‘the defen-

: dant’s: control, suitable. ‘for thé rornmission. of the crime

| 7 charged, eveit though there’ is no ‘showing ‘that it is the

actual. weapon used." Thus _ in the case of. People v. Len-

_ hardt, 340 Tl. 538, 549, TINE, 155 (1930), the Supreme

Court of: Illinois said:

: 1 is competent to prove that an.-aceused person,

- when arrested, ‘possessed a weapon suitable for the :

‘commission of the erime charged against him, ev en

though ‘no claim is made that “hé actually used it in

committing the particular crime.’

te | Shiflett v; State, 38 Ala. “App: t 662, 93 So. 2d

523 dae. People v. Lane, 56-Cal. 2d 773, 366 P. 2d 57,

16 Cal. RR. 801 (1961) ; People v. Nichols, 171 Cal. App.

-2d 320,-34Q-P.. 2d 727 (1959); People v. Nelson, 224°Cal. |

| App. 2d: 238, 36 Cal. ‘Rptr. 385 (1964); People v. Lindsay,

227 Cal. App. 2d 82,°38 Cal Rptr. 755 (1964); State -y.

Dillon, 161 N.W. 2d 738 (Iowa 1968); State v. Ricks, 242

La? 893. 8 So. 2d 589 €1962); People v. Magby, 37

Ill. 2d 197, 226.N.E. 2d-33 (1967);.People:v. Johnson, —

35 Til. AY 516, 221 N.E. 2d 497 (1966); People v:. Trice, —

et Ill. App. 2d 310, 962 N.E. 2d 276 (1970); Strickland. ’

. State, 226 Ga. 750, 177 S.E. 2d 238 (1970); People v.

pera earn eee “eer

7 4

| Hall, 19 Mich.. App. 95, 172 N.W. 2d 473 (1969); People .. 3

v. Lumpkin, 27 Mich. App. 143; 1883: N.W. 2d 384 (1971);

Garton v. State,.454 S.W. Ide 522 1970); Harris v..State,

450 P. 2d 857 (Ok. Cr. 1969); State v. Beele, 75 ‘Wash.

- 2d 28, 448-P. 2d 923 (1968); Pryor v. State, 449° S.W. 2d

- 482 (Tex. Crim. mand oe, §,

The foundation for this rule of eviderice is easily un-. :

derstandable. Most eases ultimately turn.6n the conclus-

_ions reached. by. the finder of fact. In many cases physi-

eat evidence is adduced which is related to a subject ‘that *

is sufficiently beyond.common experience that the opinion

‘of. an. expert. would assist the trier’ of fact. Such evidenée

does not usurp the province ‘of the jury, ‘since the jury.

_. does ‘not have to’ accept the ‘Witness’ opinion. Miller v..

: Pillsbury, 33 Til. 2d 514, 516, 211 N.E..2d 733. (1967).

Tlinois: courts have not abandoned the principle that such

~ . evidence should be received with caution. Thomas

Cagwin, 43 Ill. App. 2d 336, 193 N.E. 2d 233 (1963).

2 “thete | is always the possibility that a-givensex> ert in the

field of we aponry is simply wrong in his deductions. And

‘in’ this ease the witness’ expertise was not established in

‘the record. It is, Seapeeres: quite - ‘understandable why

‘ Tllinois courts will permit’ the introduction of a weapon

~ found within’ a suspect’s control at the time*of his arrest

which is’ suitable for the ‘commission of the erime

charged, even though — no claim is made that he ‘actually

used it on the occasion in_ question. _ Accordingly, in the.

ease of . People. v, Os strand, 35 Ill. 2d 520, 221 N.E.. 2d.

_ 499 (1966), a “snub-nese”? revolver was used in a rob-

-bery. A larger revolver was found on the defendant at

the time of: his arrest and admitted into evidence. It was

held that such a discrepancy goes only to the weight ‘of

the evidence and not the admissibility. In the instant

case there is a diminutive amount of evidence in the

‘record to establish the size of the. shotgun used in the

murder. It is entirely possible that the weapon fétind

inthe petitioner’s possession could have been the murder |

weapon. There ean be no doubt that the shotgun fowl at

the time of petitioner’ s arrest was similar to the murder

weapon and was, “thereforg properly, admitted into bi:

dence.?”

_ For these reasons it is apparent that ‘the weapon was

not meee against the petitioner to denounge him-as a “bad

, man” without regard to his: guilt or inndcenee.. It‘ is a

_- well: established tule that evidence, of prior crimes can-

not be introduced when it has ‘no. purpose other than to

show. criminal dispositien. Spencer: v. Texas, 385 US.

54. (1961). There are, however, -numerous instances

where evidence: ef prior crimes is admissible: In such

eases the probative value of the evidence outweighs the

‘ possible prejudicial effect | on the jury. Here, there was a

‘ distinet -possibility. that. the- ‘shotgun in evidence was the’

_very-same gun that killed the bartender. Moreov er, ready °

access to a loaded shotgun could be considered a. part. ;

of the petitioner’s s modus operandi. - #

It is clear that the “other crime,” when it%is found

to be independently relevant and ‘admissible, need hot

be established beyond a reasonable doubt, eitker as to its

commission or as to the defendant’s connection there: ~

with. 1 W harton, Criminal Evidence, § 366 (11th ed.

1935). The decision as to whether the logical relevance

of the. gun counterbalances any improperly damaging. ef- -

fect on the petitioner was with the trial court. Here; the

12. Indeed, ‘there is authority which ‘would ‘permit -

the introduction of the .weapori merely for illustrative

purposes.“See People vy.’ Aguirre, 158 Cal. App. 2d 304,

322 P. 2d 478 (1958), and cases collected in .State v.

. Mays, 7 Ariz. App. 90, 486 P. 2d 482 (1968). ©

13. Petitioner and hiss companion Barbee used the

same sfxteen gauge shotgun in.a July 27, 1962 armed ~*

. robbery. Pedple v. Moore, 3 Il. 2d 299, 220 N.E. 2d HS

eNO), cert. den. 389 U.S. 8 5

a i al ca ”

NANCE ARN

Rp Ae pearing etic

ae Ng ad nara ic a Re aA

99 fo . We. se

possibility that the shotgun could have been the murder:

- weapon, plus its distinctive character tending.to show <

a ‘modus operandi,‘ combine: to establish a high degree

of. elevancy. In the instant case the trial judge clearly -

~ aeted. within his permissible discretion in affirmatively _

weighing the actiral- need for the admission of the shot-

gun in the light of the issues and the evidence... ~

TI.

; ' THE SELECTION OF THE JURY IN THIS GASE DID

‘NOT VIOLATE THE CONSTITUTION -NOR DID. IT

‘AFFECT ANY SUBSTANTIAL ‘RIGHT OF THE

‘PETITIONER.

A. 3 ON

The Opinion In Witherspoon v. Dinois Should Be

‘Clarified Or Reconsidered. \

“On June 3, 1968, this Court. rendered its opirfton in

| Witherspoon v. Illinois, 391.U:S. 510, and gave that deci- _

sion full retroactive application. Since that date, a signi-

_ ficant number of problems have arisen from the attempts.

-of the various states to interpret and to implement the

decision. Both the importance of these problems and their _

« multiplicity indicate a critical need: for a clarification or

a reconsideration by this Court of the holding in Wither-

spoon. 7 ro”

For example, experience with the Witherspoon rule

has. shown that its application probably worsens the posi-

14. See People v. Sheets, 251 Cal. “App. 24.759, 59 Cal.

_Rptr. 777 (1967); Shiflett v. State, 38 Ala. App. 662, 93

— So. 2d 528, 529 aed .

tion .of. ‘die. dotendant: in a sania case. a discussions

with prosecutors throughout the. country and in our own

experience, we have found that nearly every person who _

' disquafified himself under the pre:Witherspoon standards

_ will also ‘disqualify - himself under, the post-Witherspoon |

standards. The few jurors who aonot: so disqualify them-

selves can ‘invariably be eliminated by. peremptory chal-

lenges.

-an advantage and that advantage becomes ‘apparent to

anyone who watches a post- Witherspoon voir dire.

First, a niamber of jurors in pre-Witherspog days who.

qualified for service because of thé statement that they

lacked scruples will now disqualify themselves when asked

. about their willingness to ‘consider: actual imposition of

the death penalty. In our experience there are more of

such jurors than there are jurors wlio, while declarin

the existence of scruples, will .still state that they ¢ could

“consider imposition ‘of the death penalty. In sum, the pro-

secution may well gain in the number of challenges for

- eause. if Witherspoon is followed, a

Second and far- more important tactically than- the gain

. im challenges for cause, is the increase’ in. knowledge

about the juror. gained from a post- Witherspoon vor

dire. When a lawyer or a judge asks the prospective

juror if he has any conscientious scruples against the .-

death penalty .and: the venireman answers that he does

not, the prosecition has little to guide its judgment as to

‘the true. feelings of the juror. The juror might be op-

_ posed to capital punishment. generally ‘but ‘without con-.

_ seientious or yeligious scruples. Or the juror, while ap-

paving of -the death penalty, might not be willing” »

'Thus,e the defense gains no- réal advantage if Wither:

| anon is followed. .The prosecution, hhoweyer, does gain |

ik @ lanwneont iss Ripties

A. sign a. capital verdict himself or might. do + ‘so Only. in

the rarest case. ‘And: ‘experiéneéyhas : shown. that there are

2G VG IG IE DM

a number. of. such jurors, For this reason defense counsel

often - objectgd to questioning .of veniremen that des-

cended froff the levels . of . consciéntious scruples and.

sought. to determine the actual ability of,a juror to re-

turn a capital verdict. The reasons for such objections

- were also grounded -on ‘the ‘theory that repeated - ques-

tioning of jurors: “indoctrinated” them with _Tespect to.

the deathi penalty. ;

Under Witherspoon, however, such questioning is not

‘only permissible .but required. And when the juror’. has

' answered three or four searching questions on his abilfty

to consider the death. penalty, the prosecution’ has ? a Very

good basis for judgnient as to whether the juror would. .

7 really return’ a° capital verdict. The demeanor of the

. venireman ahd the manner in which he answers the voir ”

dire will nearly always give ‘the prosecution a clear guide

as to whether it should ‘exercise a peremptory challenge.

Instead of the old, iheffective shot in the dark, the prose-.

eution can .make exceptionally effective use of its per-

emptory challenges in capital cases."®

The defense gains nggeimilar benefit ‘from insight into

the venireman’s real views. For ‘it must exercise ‘its per-

‘emptory challenges unaided by the challenge for cause

which helps the prosecution elimifiate jurors it finds un- -

desirable. ) 7 |

15. The’ application of Witherspoon in states where

attorneys are not permitted to ask questions for the pur-

‘pose of uncovering information useful only as a basis for |

exercising peremptory challenges is. especially helpful . to

the prosecution.

ail

~ defense lawyers

' In theory Of course, the defense - has a challenge. for

cause. —— to that of the prosecution ; it — vids dis;

PR pe Se ere Ie re

death penilty 1 no, ‘matter what the evidence." *6 But in fact,

_ few if any-jurors will take” this position and the chal--

“lenge is. rarely ‘appropriate. -

Witherspoon, therefore, improves: the pecaeiataein” s posi

tion in relation ‘to impanelling: a eapital jury by (a): fail-—

OTS excused -

ing to reduce significantly the number’ of jt

for cause and (b) increasing t fective use. of. prosecu-

tion peremptory\ challenges ‘and (c) according to some

enabling’ the prosecution to.indoctrinate.

a jurors congerning the death penalty, = :

- Furtherm Ke, the Court’s decision to give retroactive ap- !

plieation 40_ its holding in. Witherspoon has resulted in.

sev eral /procedural: quagmires. The number .of cases af-

_ fected by Witherspoon and the array of. state and federal---

. precedents sustaining jury selections held improper by

rspoon are more impressive than some similar arrays

-- Wprior decisions in areas where the court has limited its

272, 220 N.B. 2d 469, 473-74 (1966). 4

holding. See Desist v. United States, 394 US. 244 (1969).

_Of more importance are the procedural problems created —

by the enforcement of the giecision in past cases. The

-, Court failed to consider’ ‘shat State procedure. will not ‘

always: allow the easy separation. of issues: of guilt and

punishment. In several States the absence of any Rroce-:

dure, for pecan teneing has resulted in a complete reversal

° ° ¥ ‘

16. ‘Eg. Stroud v. United . States, 251 US. 380, 381

(1920); ‘Turberville v. United States, 303 F. 2d 411,421 -

(D.C. Cir. 1962). See. United States v. Puff, 211 F. 2d

171, 182 (2nd Cir. 1954); People v. Hobbs, 35 Ill. 2d 263,

TEP RI RIS LO AR em 4

oo aro ae. — 96 -

oe eet se *

voir dire of the jury is not recorded.’® The Court did not

deal with the question of waiver.’

: *

- 17, . Elligon’ v. ‘State, 432-S.W. 24° 955 (‘Tex.” Crim.

1968) ; Ex: parte Bryan, 434°S.W.. 2d 123, 124-126. (Tex.

Crim. +1968); State v. Spence, 274 N.C. 536, 164 S.E. 2¢

593 (1968); State v. Turner, 253 La. 763, 220 So. 2d_ 67,

, 98- -69 (1969) (cases

‘min, 254 La: 49, 222/So. 2d 853, 854-55 (1969) 5 See: also

n direct appeal) ; State -v. Benja-

Pa. Stat. Ann. Tit. 18 § 4701 (1963).

18. -The problem is not a minor one.. The usual pro’,

visions of State law, require the recording of jury, selec-

tion upon the reqyest of - ‘either party. In response to —.

Witherspoon it hag been held that: jury selection should

‘be recorded in. the future. Pittman v. State 434 S.W. 2d

352 (Tex: Crim. 1968). Howéver, where ‘the record was

not kept for lack of request: the challenge ta jury selec-

S.W. 2d 397 (Tex. Crim. 1969); State v. Forcella, 52’ N.J.

263, 245 A. 2d 181, 196 (1968); Gaddis v. Page, 455 P, -

2d 699 (Okla. Cr. 1969). ‘As an alternative, evidence or

stipulation as to what transpired at the voir dire has been

faken and the issue reached.in that fashion. . Lokos v. *

State, 221 So. 2d 689 (Ala. 1969): See also Byent v. |

White, 398 F. 2d 593 (5th Cir. 1968) ; Yafes v. Brdazdale, —

402 F.. 2d 113,.115 (5th Cir. 1968; The problem with

-the latter method i is that a correct ruling on Witherspoon

. may require very exact rendéring. of: the voir diré which .

is impossible without a verbatim transcript.

19. - Seemingly if a ruling is retroactive in effect and

the actions of-a trial court in failing to follow it are

violative of the defendant’s rights, then the failure of the

defendant to object should waive the violation. How-

. ever, the question of waiver ‘is not so simple. The. Sup-

-reme Court of -California has, in reversing, convictions, «

been very solicitous of ‘trial judges, explicitly absolving

and retrial ‘of both guilt and puriishment. issues.** ‘Nor —

< - did the Court. consider the problem that afises where the

- tion. rocedures has been rejected: Joseph v. State,.*442 i

27 . sas = a ne

. Thesé ictheile ‘arose, at least partly; from ‘the fact

that the ground of decision in Witherspoon was not ‘the 7

ground argued by the parties:* se

them from blame for. failing oe see into. the foturd, In*

re Anderson, 69 Cal. 2d 613, 447 P. 2d 117, 120-123 (1968)’;’.

- In re Argueflo, 71 Cal. 24 13, 452 P: 24.921 (1969); In.

re Seiterle, 71 Cal. 2d 698, 456 P. 2d 129 (1969) ; People v.

Gardner, 71 Cal. 2d 843, 457 P. 2d-575 (1969); People v.

|” “Washington, -71 Cal.’ 2d 1061,’ 458 P. 2d 479 (1969); In.

re Hill, 7f Cal. 2d 997, 458 P. 2d 449 (1969); see also”

State v. Turner, 253° La. 763, 220 So. 2d 67 (1969).-

. However, the. doctrine of waiver has been applied if ns

something. more: than mere silence on the part of the de- .

fendant can be found in the .record, i.e. specific agree- -—

ment or stipulation to. excuse a juror, or failure to ask

questions to clarify the status of a juror’s opinions. See ~

People v. Coogler,. 71 Cal. 2d 153, 454 P. 2d 686 (1969);

State v. Pace; 80 N.M: 364, 456 P. 2d 197, 199-202. (1969) :

Pittman v. State, 434 S:W. 2d 352 (Tex. fim. 1968);

wap v. State, 434 S.W. 2d°678 (Tex Crim. 1968). |

n two cases defendants sought affirmance of their ‘. [-

convictions, and death sentence : ‘and the California Sup-

‘reme ‘Court ignored their requests ‘since death penalty ap-

peals are automatic in Sport See People v. Good- .

ridge, 70 @al. 2d 824, 452° P. 2d 637 ( 1969); People v. -

Stanworth, 7] Cal. 24° 820, 457. P. 2d 889 (1969). Paren-.

thetically, it: eons that any statute which would prevent

a man from waiving his appeal even if it ‘results in his

death is itself unconstitytional. Cf. In re Brooks Estate,

32 Tll. 2d 361, 205 N.E., 2d 435 (1965). .(Jehovah’s,Wit-

ness has a constitutional right to refuse medical ‘treat-

ment even if such refusal would result in her deathy.

20. In state court, Witherspoon argued that disquali-

fication of jurors, with conscientious scruples against the .

- death penalty caused: him to be tried before a jury un-

able to determine fairly his guilt or.innocence. He did — |

_ not challenge ‘the fairness of thé jury on the issue of =F

' <2 +

ans »

“\

* .

. ’ e ; P ‘6 .

¢ °. : : . ,

e rl

. .

7, . e

‘ . r

a ‘

Me,

a ey

ane The Gott failed to reach: the issue. oe bie i bares: fair-

, ess on the guilt—innocence questiort beeause “the ‘data

Z ‘addticed are too’ tentative and fragmentary. 4g (391. US.

at 517): Yet the conclusion as’ to the jury's impartiality ae

‘ -6n the issue of punishment was reached with no data at»

\all because it was “self-evident. ", Perhaps with adequate >

; briefing the Court would have, abandoned its holding or:

would: at least have found some basis more’ substantial

for its proposition than that it was “self-evident”.

punishment. His agp was that. the legitimate in: |

terest of the State is securing a fair jury on the issue of

punishment should not prejudice his. right’ to.a fair. jury’

on. guilt or innocence. He offered studies concluding. that

jurors | without . conscientious» scruples were “prosecution .

_ prone’’ on the issue of, guilt or innocence.-The Supreme .

+ Court of Ilinois affirmed the. denial of relief. reople ' v.:

' Witherspoon, 36. Il. 2d 471, 224 N. E.. 2d 259 (1967).

tions but failing again to chaltenge the fairness of the

.jury on the ‘issue’ of punishment: This Court . granted,

certiotari but limited to considering whether” the jury .

selection process “assured the State of a- jury whose

members ,were partial to the prosecution on the issue. of

guilt or innocence in violation of the petitioner’s rights.

under the Sixth and on Amendments fo ‘the”

United States Constitution

1035 (1968). ‘This language

certiorari in a companion case. Bumper v. ced orth. Carolina,

389 U.S. 1034 (1968).

However, when Witherspoon 1 filed his brief he said. :

Emphasis added}. 359 US...

for the_first time jn a brief passage, the question of the

: jury on the issue of punishment. Yet he still did not ask °

for a vacation of sentence—only: for a new trial.’ ‘The

prosecution, | noting. that the «question : ‘was not. properly

before the court, stated that it would not reply: tor the

argument unless requested. to do so.. See Brief. for Res- °

— Woods, ——— v. Illinois PP. 37- 38.

| '

as echoed in the grant of .

oe gee

spas.

--i °° (he lack of argument had a devastating effect on the

"+ quality and ‘clarity of: the decision and it is this that the.

passage of. time has revealed. most clearly.?! _ ee.

. The most. immediate problem arising from theslack of-

_argument on the issue decided was a-severe lack of focus

in the ‘holding. It is diffetlt to state with assurance thé _

holding of the case. The text of ‘the opinion and. one, -

‘ footnote- offer at least three separate. standards for jury

- selection in“capjtal cases.2?— i oe sae re

Ye 4 A, jot ae : ;

21... The Coutt relied, for example; on-a. Gaillup Poll ‘of Z

1966..to show that persons favoring capital .punishment

were a “distinct and: dwindling minority.” To-wit, 42%.

* * (391 US. at 520, n. 16). Yet the same poll showed that’.

}

persons without Seruples against inflicting capital punish- _

ment constituted 65% of the population. This latter figure.

is the more.meaningful singe jurors were not asked if

' they favored capital punishment; rather they were: dsked.. ;

é.

“¥

if. tifey had scruples against its infliction, In any event, -

polls’ are hardly -a- good basis for: lastirfg doctrine. Ac-

cording.to Gallup the number of persons favoritig capital

punishment’ “dwindled’’. from 42% in 1966 to 51% in

1969. (Gallup ‘Poll Report, February 16, 1969}. In a

recent referendum, conducted in concert with a’ vote on,

whether to adept a new state constitution, the voters of .

Illindis rejected a ‘ballot proposition to abolish pital

punishment. 643% .of. those’ voting Tavored retaining

a eapital punishment while. only 35.79% opted for abolition:

Just under 2,000,000 votes were cast .on the proposition.

[Illinois, Secretary of State,: Constitution of the State of

Illinois and ‘United ‘States 13, 15 -(1971)]. To whatever

extent Witherspoon. relied on polls, it has been proven -

to rest on an insufficient foundation, = =|...

22. In the text of the opinion the Court said: ne

« “Specifically, we held that a sentence of death can-

_ hot bé carried out if the-jury that imposed of recom:

mended it was chosen by excluding veffiremen for ~

7 Ae ij

POET ee a ee

Gite

80 oe

What then‘is the holding? Is it the somewhat flexible

minimum standard in the text? Is it the standard of the

‘ footnote, i.e., willingness to consider all ‘the penalities?~

' @

——

‘=

said: ~—

cause simply: because ‘they voiced general objections

to the death penalty or expressed: conscientious or

_ religious scruples against its infliction.’’ (391 U.S.

510, 521-22) ~ , ,

_. However, in a long footnote to this statement the Court

‘“Just as veniremen cannot be excluded for’ cause

on the ground that they hold such views, so too they |

» eannot .be excluded for cause simply, because they in-

dicate that. there are’ some kinds of cases in whieh ,

they would refuse to recommend capital punishment.

And a prospective. juror cannot be expected to say in

advanee of trial whether. he would in fdet vote for

- the extreme penalty in the case before him: The .

-most that can. be demanded of a vefireman in this

regard is that he-be willing to.consider all of the

~- penalties provided. by state law, and that he not be

irrevocably committed, before the trial has begun,

to vote against the penalty of death regardless of the .

facts and, circumstances. that might emerge in the --

__. ~tourse of the:proceedings. If.the voir dire testimony

-w™

in a‘given case indicates that veniremen’ were ex-

_ eluded on any broader basis than this, the death sen-

tence cannot.be carried out even if applicable statu-

tory or case law in the relevant jurisdiction would.

appear to support only a ‘narrower ground of ex-_

-elusion.”’ (391 U.S. 510, 522 n. 21) a

And in the second paragraph of this same footnote the

-—

_ Court added:

“We repeat, however, that nothing we say today

bears upon the: power of a State to execute a defen-

dant sentenced to death by. a jury from which. the

only veniremen who were in: fact excluded for cause .

—-« . , we. 8

_. What‘is the meaning of. the second paragraph of the foot-

note which lays down a very rigid standard but provides

‘that “nothing -we say today bears’ upon” the application

of this standard? Bo 7

In Bumper v. North Carolina, 391 U:S. 543, 545 (1968), .

a companion case decided the same day with opinien

written by-the same Justice as in Witherspoon’, the Court |

said: 7 .

Ae a v TOT BR BY 5 Ay

Sv “In: Witherspoon: vy. Illinois * .* * we have held’

_ | that a death sentence . cannot constitutionally be

executed if imposed by.a jury from which have been ~~

excluded for cause those, who, without ‘more, are |

opposed to capital punishment or’ have conscientious . |

scruples against imposing the death penalty.”. fe

The ambiguity in the holding is clearly illustrated in. +

the following passage from Witherspoon:

Ze ‘the State had: excluded only those prospective

Jurors who stated in advance: of trial that they

Would not even consider returning a verdict of death,

it could axgue that ‘the resulting jury was simply |

' ‘neutral’ with respect to penalty. But when it swept

from the jury all who expressed conscientious or re-

ligiouy scruples against capital punishment -and all

i PR MEN I De Mme Me ea ENe A ITF Ih

P .

PLATE ALES

Were those who made unmistakably ‘clear (1) that

they would automatically vote against the imposi-

dence that might be developed at the trial of the case :

before them, or (2) that their attitude. toward the *

death penalty would prevent them from making an 2

impartial decision as to the defendant’s guilt. Nor .7

does the decision. in this case affect the validity of. —

any sentence other than one of death. Nor, finally,

‘does’ today’s holding render invalid the conviction,

as opposed to the sentence, in this or any other case.”

(391 U.S. 522-523). ¢ :

EOE MURA STR

5 cael GRA latin a ae ABSA N iB cas 28

who opposed it ins principle, the State crossed the

line of neutrality.” (391 U.S. 510, 520; emphasis

added)... nn

%¢

What kind of exclusion of jurors is permitted? What

kind is prohibited? What standards were approved? What

standards were disapproved? What did the Court de-

cide? Except in certain cases at the ends of the spectrum

the answers to these questions are not known.*

23. The California experience is particularly iHustra-

tive of the confusion generated by lack of focus in_ the

Witherspoon opinion. =. “

‘The Supreme Court of California has ruled on the ap-

plicability of Witherspoon in numerous reported opinions.

The court has‘stated the applicable test in terms of- the

second paragraph ‘of footnote 21 1.e., it must be unmis-

takably clear that the juror would automatically vote -

against the death penalty regardless of the evidence or

that the juror’s attitude toward the penalty would pre-

vent an impartial decision on the defendant’s guilt. KE. G.

In re Anderson, 69 Cal. 2d 638, 447 P. 2d 11%, 120-23:

(1968); People v. "Washington, 71 Caf. 2d 1170, 459 P.

“2d 259, 264-65 -(1969). But even’ this clear choice of

standard has not avoided serious problems. °

The most obvious of these problems is that jurors often

do not make unmistakably clear answers to questions on

voir: dire. This tendency to give equivocal answers is if-

creased substantially when questioning becomes extensive

and probing. The net result of an attempt to apply.a rigid

standard to an inherently equivocal sort of proceeding is

a course of basically inconsistent decisions. ’ In other

words, it is difficult to tell why or how the Supreme Court

of California differentiates between the cases it affirms

and those it reverses. : : | é 3

For example, in a’series of cases the Court disapproved

excusing a juror despite the fact that a juror “believes”

9°

° °

° > ; . e

* %

The Court: did net deal with the effect of peremptory :

challenges on. jury selection. in capital eases. Certainly

the Court did: not ov errule its long standimg doctrine that.

peremptory challenges are a matter for each- party * to

—exere)se as ‘it sees fit.. Swain v. Alabama, 380 us. 2e2,

- 221-222 (1965). Presumably the prosecution ‘could exer’

or “really feels” he could not. consider the death penalty,

(People v. Vaughn, “ Cal. 2d 406;°455 P. 2d 122, 125-28

(1969).)Or that a juror “did not think” he could: aSseSS

“the penalty, (People v. Osuna; 70 Cal. 2d -811,. 452 P.

21 678 (1969)YOr that a+ juror said “I don’t “think J. -

could: send anyone to death”, (Inve Hillery, 71) Cal! 2d

S97, 457 P. idl 69, 566-70 (1969). ) Or that-a juror said

“TL eannot serve, on a capital, punishment case” (Péople |

v. Goodridge, 70 Cal. 2d 824, 452 P. 2d 637, 646-7 (1 69).

Or that a juror did not “believe” or “think” he could give

the death penalty under any ciréumstances. (People v..

Washington, Tr Cal, 2d 1061, 458 P. 2d 479 (1969).)

On the other hand, the California Court has ‘affirmed the

excusing: of jurors .who said they “would rather not

serve!’ or “Pin afraid I would [feel compelled ‘to vote

for life “imprisonment ]” or “I don’t think I could con-

sider it” or “I feel I couldn’t” or “I don’t believe I

could.” People v. Mabry, 71 Cal. 2d 430, 455 -P. 2d 759,

167-70 (1969). In another case the court sustained a

challenge to jurors who said “I believe that is my feel-

ing” and “I don’t think I would in conscience impose the

death penalty.” .People v.. Hill, 70. Cal. 2d 678, 452 P. 2d

329, 341-42 (1969).-In a third case a juror whose answers

shifted from “possikly could” to “could not” was finally

excused when*the said he answered affirmatively to the -

proposition thet no matter what the case was, he could

age in good conscience, vote for the death-penalty. People |

. Robles, 71 Cal. 2d 924, 458 P. 2d. 67: (1969). These de-

-. @isions simply cannot be Subjected to a Simple, reasonable

analysis explaining the difference in results. —

Ee hig

oI eM

Gl ae Mak RO

PO a eee SS ee

“34

cise its peremptory challenges to eliminate scrupled -

jurors who could still return a death*penalty verdict. And

presumably the prosecution: would always choose to exer-

cise its challenges with respect ‘to "such jurors. Yet this —

. important question is unanswered by Witherspoon.**

Tn short, the Court ought to reconsider or clarify ‘its

decision in Witherspoon in light of the effect of that de-

cision on actual jury selection; in light of the problems

created by retroactive: application and in light of the |

serious problems in interpreting the decision.

B..

The Particular Voir Dire In This Case Was Not Con-

7 ducted In Violation Of The Witherspoon Decision.

- During the voir dire in the present ease each venire- |

man was’ asked in ‘substance whether he had any religious

or conscientious ‘ scruples against “the infliction . of the

24. In the case at bar the State had sufficient serenit

tory challenges to have eliminated those prospective

jurots -eligible to serve under Witherspoon. Since this was

a capital case each.side had. 20 peremptory challenges

under the applicable ‘Illinois. statute: Ill. Rev. Stat.1963,

‘Chap. 38, par. 115-4 (e). None of the. State’s peremptory

challenges was exercised against veniremen who were

- totally “opposed to capital punishment. Notwithstanding

~ this: fact the’ State failed to exhaust all of its peremptory .

challenges at the close of the examination. If defense ,

counsel had elected to question further and had been able

to elicit from“a few challenged veniremen the response

that despite their. religious or philosophical principles

they might be able to sign a death verdict, the composi-

tion of the jury would have been no different. in respect

-to its propensity to invoke the death penalty.

35 |

death penalty - in thle proper’ case. In the ontext of the

entire voir dire, cluding the. trial court’s efforts to de-

~ termine, whether the jurors would consider all possible

verdicts, it cannot be said that there had. been removed

‘from’ the jury “for cause those who, without more, are

opposed to capital punishment. or have: conscientious

_ seruples against imposing the death penalty.” Bumper v.

North Carolina, 391 US. 543, 545 (1968). Twelve jurors

positively asser ted ‘that they. had such scruples and were

excused for cause without motion by the State or objec- |

‘tion by petitioner.

The general course’ of. the examination, however, was"

unlike Witherspoon where. the’ trial judge promptly ‘re- |

-. moved all who voiced the slightest disdain for the death |

penalty. The effort of the trial court: to select a fair and

‘impartial jury is reflected in the examination of prospec-

tive juror Conner: | “

“The Court: Q. Did you say Mr. Conner, that if |

vou detérmine first, that the, defendant is guilty and:

then vou are to determing whether you should render

a verdict of death that. you couldn’t consider that?

A. I said that I was one: hundred peggent for

punishment, but if a man has to take another life to

punish him, then I don’ t feel that I could be Justified

in taking it.

Q. In other words, you: don’t believe: in capital

. punishment! ? .

“A. If that’s w hat it amounts to.

Q. :No, no. I’m ‘asking vou. I asked you, did you.

have any religious or conscientious scruples against

the infliction of the death penalty in a proper case?

A. -In a proper case, no, I don’t have any ob-

jections and I could sign a death penalty i in a proper

case. |

eer ooateesmE

SRR E Re RESON RE ON MS oneR HPT Ear s

"36 .

~The Court: Well, I’m not going ‘to gemove him.”

(R. 145). | ; on

Another example is the following examination of pros-

: a pective juror Nakata: : . -

ao et enw a mrt * — — St re mee eo gy BE

Ne ape -

eee,

ae 3 Likewise, you can’t be a juror unless yo

-when you’re sworn, and you are sworn to respect and.

observe the law. ° -

‘A. That’s the reason wie I would like to give .

“my reasoning right now, before I perjure myself

about that personally, Nhechune T can't go all the why

on eapital punishment. .

Q. You ean’t go all the way? | |

"AL Now . . _ os

Q. Where do you stop! | _— =

A. It depends on the: kind of crime ‘it is ail the

evidence presented for it. _ :

: Q. Oh, that’s all we are asking” you to do.

ne A. We it seems to me, from the statements

made by the prosecuting attorney, that he is going

to ask for the death’ penalty, so in view of that fact,

- I think I should | disqualify myself.

Q. If he asks for it, it doesn’t miean that you

i id ~ have to give H-te-him.> ~

: A. Of course, that’s true, too. But at the Same’

7 time, though, [ mean, | wouldn’t be applying the

a7, law, as, he stated it, you’see, upon his presentation

oe ' ‘of the evidence, and all that, so I don’t think I

would be fair ‘to the court or to the Test of the

jurors by my being on the jury.

- The Court: Step down, then, if you “don't think

] | “you.ecan be fair. I’m not going to ask you to try

4 any -further. The onjy question is, we- want you to

_ be fair and -impartial.” (R. 227 299) | |

_ . Tt is the State’s understandifig of the Witherspoon. doc-

\ - trime that the/ exclusion of jurors with scruples against }

capital punishment does not necessarily void the inflic-

tion of: the death penalty. The‘tenor of the voir dire ex-

amination here was quite different from that ‘of the

Witherspoon court. In that case the tone was _ set early

—-t. the_xoir, ¢ dire | when the trial judge. said, “Let’s get

these’ conscientious : objectors out of the way - -without

“wasting any time on. them.”-In this case, there ‘was no

hint of a desire to be unduly rash in selecting the jury.

. To thé contrary, the mood of the proceedings here indi-

\eated a sincere desire to determine the jurors’ qualifica-

tions. The fact that the questioning became more ab-

_ breviated as the examination progressed indicates mere-

dy an increase in efficiency, not a sellout to haste. —,

Furthermore, jn the context of the voir dire it is clear

that the veniremen were cognizant of the import of\the

. ° : ° oo ° . . a) Pr

question. In Illinois, as in most jurisdictions, the entire

venire is present in the courtroom while the indivdual

jurors are questioned. The. venire is brought into the

courtroom and given preliminary: instructions - -eontérning

the nature of the case and the-tria! procedure. The

veniremen are then sworn as a group. After the -eolloquy

between the trial court and venireman Connor (R. 145)

g (who- was. the second venirpman examined) no pros-.

pective juror: could, have been in doubt as to what was

flicting the death penalty. The trial court made it clear

‘that it was concerned only with persons who would not

render the death penalty under any circumstances; and

such persons’ may be excused for cause under WWither-

spoon. - | — a

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CONCLUSION

_— For the foregoing reasons, Respondent requests that.

the judgment of the Supreme Court of Illinois be affirmed. .

__e esoeettaly submitted, y

Wituam J. Scorr,

. Attorney General,

ee State of Mlinois,“

\ oo,

o\ . . Jorn M. Fuaum,

vo | _ . First Assigtant Attorney General,

¢ ;

‘James B: ZacEL,

Assistant Attorney General,

" Supreme Court Building,

| | Attorneys for Réspondent.

Y = 2

io . Tuomas J, Inter, 5. *

f _ Jayne A. ces, es es &

Assistant Attorneys General, :

of Counsel.

-—

B onsicrnsinniowesn

| a

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.