Petition — White v. Finkbeiner

¥ SUPREMS COURT panohe Pohyey

* OF THE UNITED STATES ‘

* %

EUTUES WHITE

Petitioner

: -vs-

PEOPLE OF THE STATE OF ILLINOIS,

Respondent.

MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS

The petitioner, Eutues White, who is now held in the

Illinois State Penitentiary, Pontiac Branch asks leave to

file the attached Petition for Writ of Certiorari to the

United States Court of Appeals for the Seventh Circuit, with-

out pre-payment of costs and to proceed in forma pauperis

pursuant to Rule 53 of the rules of this Court.

The petitioner's affidavit in support to this motion

is attached.

CoF iia) WK ATS

EUTUES WHITE

Petitioner

- : ee

. Wa OY . i ‘

. " . ;

IN THE

SUPREME COURT

OF THE UNITED STATES

79-€601

EUTUES WHITE,

Petitioner,

-vs-

PEOPLE OF THE STATE OF ILLINOIS,

Respondent.

AFFIDAVIT

I, Eutues White, being first duly sworn according to law,

depose and say, in support of my motion for leave to proceed

without being required to pre-pay costs of fees:

1. I am the petitioner in the above-entitled

cause;

2. Because of my poverty I am unable to pay

the costs or fees of said cause;

3. I am unable to give security for same;

4. I believe that my case has merit;

5. Than I have sought to have my Constitutional

rights reviewed by the appropriate state

courts through the appropriate state pro-

cedures; And in the United States District

Court and Seventh Circuit Court of Appeals.

6. That the claims I seek to present to this

Court concern violations of my rights under

the Fifth, Sixth and Fourteenth Amendments

to the United States Constitution.

Ae.

Petitioner

SUBSCRIBED AND SWORN TO

this 7 g day of

1980. .

Se a en eee

~—s

IN TRE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1980

EUTUES WHITE, Petitioner, aN

MAY 15 1980

FRED FINKBEINER, Respondent. OFFICE OF THE CLERK

re SUPREME COURT, U.S.

PETITION FOR A WRIT OF CERTIORARI

TO THE

UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT

RALPH RUEBNER

Deputy Defender

KENNETH L. JONES

Assistant Appellate Defender

Office of the State Appellate Defender

130 North Wells Street

Suite 2200

Chicago, Illinois 60606 .

(312) 793-5472

COUNSEL FOR PETITIONER

Prayer . > . > . > . > >. > . . >. . > . . . . . >. > . . . .

Opinions Below... . + 2+ + +2 se ee ee se ee wee

oe - 2 « oss @ 6 6 68 0 «0 894 8 0 0 8 ee 8

Questions Presented For Review . .'. . . 1. «© © «+ © ese e-s

Constitutional Provisions Involved .....+ + «+ -e««#-s.

Statement of the Case ... +s 2 ee ee © © © © oe 8

Reasons for Granting the Writ

*

I THE CIRCUIT COURTS OF APPEALS ARE CURRENTLY IN A

STATE OF CONFUSION AS TO THE VALIDITY OF THE PER

SE RULE THIS COURT FIRST ANNOUNCED IN MIRANDA V.

ARIZONA, 384 U.S. 436 (1966), AND a aos

D IN FARE V. MICHAEL C., 99

8. Ge. tI L. Ed. 2a 157 (1975), Cac

COMMANDS THAT ONCE A SUSPECT IN CUSTODY REQUESTS

THE ASSISTANCE OF COUNSEL ALL INTERROGATIONS BY

POLICE OFFICERS MUST CEASE UNTIL COUNSEL IS PRO-

VIDED. THIS COURT IS CALLED UPON TO SET FORTH

EXPLICITLY THAT RULE OF LAW ONCE MORE. .....

II IF THIS COURT IS NOW GOING TO REVERSE ITSELF AND

ALLOW POLICE INTERROGATION AFTER A REQUEST FOR

COUNSEL HAS BEEN MADE, THEN THE TOTALITY OF THE

CIRCUMSTANCES TEST NECESSITATES A FINDING THAT

WHITE'S CONFESSION BE DEEMED INVOLUNTARY SINCE

HE COULD NOT HAVE KNOWINGLY. AND INTELLIGENTLY

WAIVED HIS RIGHTS DUE TO HIS LIMITED INTELLEC-

TUAL FUNCTIONING AND HIS DRUG INDUCED STATE OF

MIND AT THE TIME OF HIS ILLEGAL ARREST .....

NR OS ER ae re a

INDEX TO APPENDICES

People v. White, 10 Ill. App. 34 914 (1973) - First

Titincis Appellate Court opinion... ae

People v. White, 22 Ill. App. 3d 180 (1974) - " Second

Yitineis Appellate Court opinion...

People v. White, 335 N.E. re 457 (1975) - “rllinois Suprene

art Opinion

White v. Pinxbeiner, 570 F. 24 194 (1978) - First opinion

° reu t . >. >.

White v. Fiphbeiner, 611 F. 24 186 (1979) - Second opinion

o reu t > . . >. > . > > >. > >. > > >. >. >. >. . >.

CITATIONS

Adams v. U.S. ex rel. McCann, 371 U.S. 269 (1942). ....

Brown v. Illinois, 422 U.S. 590 (1975) ........22.

v. 528 F. 24 1331 (2nd Cir., 1975), cert.

. tee BGP MENUS Sa hls 0 ks ete

7-14

14-17

16

12

—— eS ee 2. ee ee

SR ee “7 a ae

- Pare v. Michael C., ___-*U.S. __, 99 8S. Ct. __, 61 L. Ed.

mee me mt} | yy ) Per er ee 4, 7, 9, 10

Paretta v. California, 422 U.S. 806 (1975) ........ 10, 14

Johnson v. Zerbst, 304 U.S. 458 (1938) . . . «© «=e we 14

Maglio v. Jago, 580 F. 2d 202 (6th Cir., 1978) ..... « 13

Michigan v. Mosley, 424 U.B. 96 (1975) . 2 2 2 2 ee wo @ 8, 9, 10, ll

Miranda v. Arizona, 386 U.S. 484 (1966)... ..+.++s-s 2. Su: 4s ee

8, 9. 11, 2a

12, 235.2342

15, 16

Nash v. Estelle, 597 F. 2d 513 (5th Cir., 1979)... .« « «+ ll

North Carolina v. Butler, U.S. , 29 8. Ce. i753,

> * Rie > . > . >. e®« >. >. . * . . >. . . 14, 1?

People v. White, 10 Ill. App. 3d 914 (1973)... . ‘ ‘ 2

People v. White, 61 Ill. 2d 288 (1975) .....-.

People v. White, 22 Ill. App. 34 180 (1978)... . +. +s. ss 2

Stone v. Powell, 428 U.S. 465 (1976) . 2. . «we « «

U.S. v. Grant, 549 F. 2d 942 (4th Cir., 1977), cert.

denied, 732 U.S. 908 (1977) ” . * > >. > >. >. >. . > >. . . 12

U.S. v. Rodriguez-Gastelum, 569 F. 2d 482 (9th Cir., 1978)

(en banc). . 2. 2 2 2 se ee ee ee ee we we we ee es 13

U.S. ex rel. Sanders v. Rowe, 460 F. Supp. 1128 (N.D.

er . . . . . . . . . . . . . . . . . . . . . ll

U.S. ex rel. Williams v. Twomey, 467 F. 2d 1248 (7th

Gates 1972) >. . >. .* . . .* * > >. >. . . . . . . . . . .* . . 10, ll

White Vv. Finkbeiner, 570 F. 2a 194 (1978) . . . . . . . . . 3, ll

White v. Finkbeiner, 611 F. 2d 186 (1979)...

. . . . . . 3, 8, 10,

ll

ii

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1980

NO.

EUTUES WHITE, Petitioner,

FRED FINKBEINER, Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE

UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT

PRAYER

TO THE HONORABLE CHIEF JUSTICE AND ASSOCIATE JUSTICES OF THE SUPREME

COURT OF THE UNITED STATES:

May it please the Court:

Your petitioner, Eutues White, respectfully prays that a writ of

certiorari issue to review the decision of the United States Court of

Appeals for the Seventh Circuit which affirmed the denial of his

petition for a writ of habeas corpus on December 7, 1979. His

Petition for Rehearing was denied on February 15, 1980.

II

OPINIONS BELOW

On October 8, 1969, Eutues White was convicted of murder after 4

jury trial in the Circuit Court of St. Clair County, Illinois. He was

sentenced to a prison term of 199 to 200 years. The prosecution's

case linking White to the murder primarily consisted of White's con-

fession. At a suppression hearing held prior to trial, White

challenged the admissibility of the confession, asserting that he had

requested counsel two days before he confessed, but that his request

had been ignored by the police. The trial court denied the motion.

On appeal, the Illinois Appellate Court ordered that a new

suppression hearing be held to determine whether Miranda warnings

were given prior to any questioning of White. That opinion is

reported as People v. White, 10 Ill. App. 3d 914, 295 N.E. 2d 300

(1973). (See Appendix A) At that suppression hearing, Police Captain

William Johnson, of the East St. Louis Police Department, stated four

times that White said he “didn't wantd,to talk about it; he would

rather see a lawyer”. Upon being recalled as a witness at this

hearing, Johnson stated that White did not ask for a lawyer but merely

stated that he did not wish to talk to the police. The trial court

again found the confession admissible, entered a new judgment of con-

viction, and imposed a sentence of not less than 66 nor more than 198

years. The Illinois Appellate Court affirmed this judgment in an

Opinion reported as People v. White, 22 Ill. App. 3d 180, 317 N.E. 2d

323 (1979). (See Appendix B)

The Illinois Supreme Court also affirmed this decision in an

opinion reported as People v. White, 61 Ill. 2d 288, 335 N.E. 2d 457

(1975). (See Appendix C) The Illinois Supreme Court did find that

there was a Miranda violation “which resulted from the failure of the

police department to furnish White with a lawyer when he said he

wanted to talk to one”. 61 Ill. 2d 288, 296. The effect of the pro-

cedural violation of the Miranda standards however, “was sufficiently

Gissipated by lapse of time, repeated admonitions and other inter-

vening events so that [White's] confession was voluntary and was

therefore properly received in evidence". 61 Ill. 2d 288, 297. Sub-

sequently, White filed a petition for a writ of certiorari in the

Supreme Court of the United States. It was docketed as No. 75-5901.

Certiorari was denied on March 22, 1976, and is reported at 424 U.S.

970.

White then petitioned the United States District Court for the

Southern District of Illinois for a writ of habeas corpus. This

TAN) hi

petition was dismissed without an evidentiary hearing and the decision

is unreported. On appeal, the United States Court of Appeals for the

Seventh Circuit remanded for an evidentiary hearing to determine:

1} whether White actually requested counsel when he was in custody;

2) whether White subsequently waived the request for counsel;

3) whether the officers acted in good faith in obtaining the confes-

sion; and 4) whether the reasoning of Stone v. Powell precludes

federal habeas corpus relief. This decision is reported as Whiter v.

Finkbeiner, 570 F. 2d 194 (7th Cir., 1978). (See Appendix D)

A new evidentiary hearing was hed before the Honorable Robert

D. Morgan, Chief Judge of the U.S.D.C. for the Southern District of

Illinois. At this hearing, Eutues White, Police Captain Johnson, his

partner, William J. Stannis, and Cornelius O'Sullivan, the police

officer who obtained White's statement, testified. All parties

testified to events that occurred ten years earlier. The District

Court concluded, as a matter of fact, that White did not make a

request for counsel and that the confession was voluntary. The court

did not decide whether Stone v. Powell precluded habeas corpus

relief for Miranda violations. The order is unreported.

White appealed again, and this latest opinion is reported as

White v. Finkbeiner, 611 F. 2d 186 (7th Cir., 1979). (See Appendix

E) The Circuit Court affirmed the district court's judgment but on

@ifferent grounds. It focused on the language of Miranda which

states:

If [the accused) indicates in any manner and at

any stage of the process that he wishes to con-

sult with an ee speaking there can

be no questioning. 4 U.S. at 444-445 (emphasis

in the original), 611 F. 2d 186, 190.

and determined that White requested counsel but subsequently waived

the request. The court also rejected the Miranda per se rule against

continued interrogation of an accused once a request for counsel has

been made. In the particular circumstances of White's case the court

found waiver as a matter of fact. Those circumstances were that (1)

the interrogators who questioned White after he requested counsel did

not know of his request; (2) the officer to whom he made his request

(Johnson) was not the “investigating officer"; (3) White's request for

counsel was “off-hand”; and (4) the meeting between White and Johnson

lasted only a few minutes. 611 F. 24 .86, 192-193. A petition for

rehearing or alternatively for rehearing en banc was filed on

December 26, 1979 and denied on February 15, 1980. The Circuit

Court's holdings that Miranda does not establish a per se rule and

that White waived his request for counsel are the subjects of this

petition.

3) Om

JURISDICTION

The jurisdiction of this Court is invoked under 28 U.S.C.

§1254(1). This petition is being filed within ninety (90) days of the

final order below.

Iv

QUESTIONS PRESENTED FOR REVIEW

1. May police officers continue to interrogate an accused who

is in custody, and obtain a statement from him, once he requests

counsel and that request is not honored; and whether such violation

of the 6th Amendment right to counsel as it affects the Sth Amendment

privilege against self incrimination is compatible with this Court's

holding in Miranda v. Arizona, 384 U.S. 436 (1966) that was recently

reaffirmed in Pare v. Michael C., _—saU.S. ss, «99 S. Ch. —__+ 61 L.

Ed. 2d 197 (1979)?

2. Assuming arguendo that police officers may continue to

interrogate an accused after a request for counsel is made, did the

State of Illinois meet its heavy burden in this case to demonstrate

a knowing and voluntary waiver of the right to counsel and privilege

against self-incrimination where the arrestee was a borderline mental

retardate and a known drug abuser who was subjected to three days of

continuous interrogation about several murders following an illegal

arrest?

Vv

CONSTITUTIONAL PROVISIONS INVOLVED

United States Constitution

Amendment V

No person...shall be compelled in any criminal case to be a wit-

ness against himself...

Amendment VI

In all criminal prosecutions, the accused shall enjoy the right

~+-to have the Assistance of Counsel for his defense.

Amendment XIV

-+-nor shall any State deprive any person of life, liberty, or

property, without due process of law.

vI

STATEMENT OF THE CASE

Eutues White, a nineteen year old youth, was arrested early in

the morning on May 24, 1969. (Record of Suppression hearing--July 28,

1969, page 6; hereinafter, R. 6) No evidence was adduced as to why

White was arrested. White testified though, at his federal court

evidentiary hearing of February 20, 1979, that on May 24, 1969, he was

walking down State Street in East St. Louis, Illinois, when he was

accosted by two police officers who asked him for his name. (Evi-

Gentiary hearing of February 20, 1979, pages 10-11; hereinafter,

S. 10-11) White denied that he was Eutues White but was then taken

into custody and transported to the police station. (S. 10-ll) He

was placed in a cell where he remained from a half hour to an hour.

He was then taken from the cell by an officer whom he did not know,

to see Captain Johnson. (S. 11)

Johnson asked if White knew him and if White would like to talk

about why he had been arrested. White testified that his answer to

Johnson was: “No. I was down here to see a lawyer". (5S. 12) White

was then returned to his cell. (S. 12)

William J. Stannis, of the East St. Louis Police Department,

testified that he saw Eutues White on May 24, 1969, in connection with

several armed robberies and homicides. He had not been notified that

White had requested an attorney. (S. 36) At White's state trial,

Stannis testified that he talked to Eutues White for several hours on

May 24, 1969. (Trial transcript, page 64; hereinafter, T. 64) He

spoke with White twice the next day--for at least two hours in the

morning and for a few hours in the afternoon before 4 p.m. (T. 65)

White seemed nervous. (T. 64)1 On May 26th, Detective Stannis

questioned White again before White signed the confession. (T. 65)

White told Stannis that he used drugs. (T. 79)

Detective O'Sullivan, Stannis' partner, testified that he too,

talked to White before he confessed on the morning of the 26th. (S.

11) The confession was typed up by Detective Stannis from the notes

he had taken during the interrogation. (R. 7, 8) Detective

O'Sullivan also testified that Eutues White was placed in a lineup

and that he was palm-printed on May 25th, but that neither of these

events pertained to the charge for which White was prosecuted. (R.

13) Finally, at 12:45 p.m. on May 26, 1969, Eutues White signed a

statement confessing to murdering Bruce Reinheimer, a seventeen year

Old gas station attendant whom White allegedly robbed.

At his trial, Eutues White testified that he did not remember

signing any confession. (T. 141) He denied ever participating in

the robbery of Mr. Reinheimer (T. 141) and denied killing him. (T.

141) In fact, White did not recall being in jail at all in May of

1969. (T. 142)

White also testified that he was using drugs prior to his arrest.

(T. 141) His doctor, Calvin Benton, testified at trial that when he

saw White on April 9, 1969, it was discernable that White was on

drugs. (T. 125) Dr. Benton saw White again on May 1, 1969, in the

emergency room of Christian Welfare Hospital. (T. 125) He was

called because White was having auditory and visual halluncinations.

(T. 125) Dr. Benton recommended that White's aunt commit him to the

lwhite later described his own condition at this time as

“paranoid, hallucinating, you know, the shakes, nervous". (5S. 13)

a ; , "a :

Alton State Hospital. (T. 126) His aunt took him to her sister's

where they all watched him. (T. 114)

In August, 1969 Eutues White underwent a psychiatric examination

in the Belleville County Jail to determine whether he was capable of

Standing trial. (Competency hearing of September 12, 1969, page 8;

hereinafter, C. 8) He was examined by Dr. Frank Perez, who was the

Medical Director of The Belleville Mental Health Out Patient Center

and consultant to the Psychiatric Division of the Menard Prison. (T.

135) Dr. Perez showed Eutues White a signed confession to the

Reinheimer murder along with signed confessions to two other murders

and an indictment for yet another murder. (C. 8) White stated:

"I did not commit the crimes. I do not remember

Signing any papers. When I was picked up by

Officers, Peytom and Hughes I was under the in-

fluence of amphetamines. They say I did it. I

remember only being held there. I told them I

wanted a doctor. I had the idea that they

wanted to kill me. They were torturing me.

They were saying, ‘We have evidence. We know

people who said you did it." Then they took me

on a lineup, they said somebody identified me.

Trickery. Then they ran out, typed statements,

put in their words, then shoved the statements

in front of me, I had no lawyer present. Maybe

I signed.” (C. 9)

Dr. Perez determined Eutues White competent to stand trial. He also

found that White showed poor understanding, he lacked insight, and his

I.Q. of 76 placed him in the range of borderline mental retardation.

(C. 10) The possibility of minimal brain damage could not be ruled

out. (C. 10)

VII

REASONS FOR GRANTING CERTIORARI

I THE CIRCUIT COURTS OF APPEALS ARE CURRENTLY IN A STATE OF CON-

FUSION AS TO THE VALIDITY OF THE PER SE RULE THIS COURT FIRST

ANNOUNCED IN MIRANDA V. ARIZONA, 384 U.S. 436 (1966), AND

RECENTLY REAFFIRMED IN FARE V. MICHAEL C., _—aU.S. _, 99 S.

Ct. __, 61 L. Bd. 24 197 (1979), WHICH COMMANDS THAT ONCE A

SUSPECT IN CUSTODY REQUESTS THE ASSISTANCE OF COUNSEL ALL INTER-

-J-

ROGATIONS BY POLICE OFFICERS MUST CEASE UNTIL COUNSEL IS PRO-

VIDED. THIS COURT IS CALLED UPON TO SET FORTH EXPLICITLY THAT

RULE OF LAW ONCE MORE.

The United States Court of Appeals for the Seventh Circuit held

that despite the fact that White had initially requested counsel

prior to confessing, subsequent interrogation by police officers was

proper. White v. Finkbeiner, 611 F. 2d 186, 188, 194 (1979). In so

holding the Court eschewed the per se rule of Miranda v. Arizona, 384

U.S. 436 (1966), which prohibits a resumption of questioning of an

accused once a request for counsel is ade, and instead chose to adopt

a case-by-case analysis of waiver of rights. The Court justified its

departure from the per se rule of Miranda stating that the “[a])doption

of a per se rule would lead to a mechanical approach to the resolution

of the particular cases we face”. 611 F. 24 186, 191. The rationale

for this new standard, albeit erroneous, is the Court's belief that

"[{a] per se rule which provided that a suspect could never waive a

prior request for counsel would imprison a suspect in his privi-

leges". 611 F. 24 186, 191. Thus the Court concluded under “cer-

tain” circumstances an accused, who had earlier requested counsel,

may knowingly and voluntarily relinguish that right. 611 F. 24 1866,

191.

The views of the Court below are at odds with the explicit pro-

nouncements of this Court. In adopting a per se rule prohibiting the

continued interrogation of a suspect after a request for counsel,

Miranda v. Arizona, 384 U.S. 436 (1964), this court said: “If the

individual states that he wants an attorney, the interrogation must

cease until an attorney is present". 384 U.S. 436, 474. This per

se rule was again addressed by this Court in Michigan v. Mosley, 424

U.S. 96 (1975). In Mosley this Court was concerned with interrogation

following an initial assertion of the right to remain silent. Mosley

held that an assertion of the right to remain silent did not preclude

further interrogation at a later time if the right to remain silent

was scrupulously honored. The Mosley court adhered however to the

»

.

Miranda procedure as to a request for counsel because the assertion

of the right to remain is different from a request for counsel. The

Mosley Covrt noted that Miranda distinguished

*...the procedural safeguards triggered by a

request to remain silent and a request for an

attorney and directed that ‘the interrogation

must cease until an attorney is present’ only

{a)f the individual states that he wants an

attorney." 384 U.S. at 74. Mosley, 423 U.S.

94, 104 n. 10.

Mr. Justice White further discussed the procedure to be followed

when an attorney is requested, in his, concurring Opinion in Mosley.

He said that when the Court wanted to create a per se rule against

further interrogation it knew how to do so. He then went on to guote

the above statement from Miranda, 423 U.S. 94, 109.

The per se rule was most recently reaffirmed by this Court in

Fare v. Michael C., 0.8. e 99 8. Ski » 61 L. EG. 2A 19?

(1979). In Fare this Court held that a juvenile suspect's request to

see his probat on officer did not constitute a request for an attorney

or an invocation of the right to remain silent. Mr. Justice

Blackmun, writing for the court, restated approvingly the per se

rule of Miranda three times. 61] L. Ed. 2d 197, 202, 207-208, 209.

He wrote:

The ket se aspect of Miranda was thus based on

the unigue role the lawyer plays in this

country. Whether it is a minor or an adult

who stands accused, the lawyer is the one per-

son to whom society as a whole looks as the

protector of the legal rights of that person

in his dealings with the police and the courts.

For this reason the Court fashioned in Miranda

the rigid rules that an accused's request for

an attorney is bet re an invocation of his

Fifth Amendment rights, requiring that all

interrogation cease. 61 L. Ed. 2d 1°97, 209.

It should be clear that the mandatory language in Miranda, Mosley

and Fare established and continues to recognize a per se rule pro-

hibiting the police from interrogating a suspect once a request for

counsel is made. Yet in the instant cause, the Court of Appeals for

the Seventh Circuit chose to conclude that the per se rule was no

longer valid and that the rule “imprisons a suspect in his privi-

leges". Cf. Faretta v. California, 422 U.S. 806 (1975); White v.

Finkbeiner, 611 F. 24 186, 191.

It is White's position, based on the prior holdings of this

Court, that once a request for counsel is made, no waiver of counsel

can be considered knowing or voluntary until the suspect has had an

opportunity to consult with an attorney. Once the suspect has been

given the opportunity to consult with an attorney, any subsequent

waiver of rights, made knowingly and intelligently, would be valid.

This procedure would be in accord with ‘the holding in Faretta v.

California, 422 U.S. 806 (1975). In Faretta, the Court held that a

defendant could insist on his right to defend himself, but only after

he has been “made aware of the dangers and disadvantages of self-

representation". 422 U.S. 806, 835. Similarly, once a suspect has

requested counsel, he has invoked his privileges. Any subsequent

waiver made without a showing that the suspect was fully aware of the

dangers and disadvantages of submitting to interrogation without the

assistance of counsel cannot be knowing or voluntary, and the only

way to assure that he is aware of those dangers would be for him to

consult with an attorney. Indeed, in Fare v..Michael C., 61 L. Ed.

2a 197, 208, it was recognized that the request for counsel is an

indication that the suspect feels the need for assistance in pro-

tecting his Fifth Amendment privilege.

This Court has continued to reaffirm the per se rule and the

rationale behind it, as is evidenced by Mosley and Fare, yet the

Circuit Courts of Appeals are currently in a state of confusion as to

the validity of the rule. Prior to the instant case, the Seventh

Circuit had adhered to the per se rule. See, U.S. ex rel. Williams

v. Twomey, 467 F. 24 1248 (7th Cir., 1972). There, the court said:

“Regarding the failure to provide counsel, once appellant requested

it, that omission is sufficient by itself to require suppression of

the written statement." 467 F. 2d 1246, 1252. ‘The Williams court

also said that to prove waiver of the right to counsel the record must

contain strong affirmative evidence of a knowing and intelligent

-10-

say: S

waiver. 467 F. 2d 1246, 1251.

The Seventh Circuit Court of Appeals confirmed its acceptance of

the per se rule in White's first appeal, White v. Finkbeiner, 570 F.

2d 194 (1978), when in discussing the findings from the record it

stated:

“[s)hould the [District] court find that White

did ask to see an attorney at any time he was

held in custody, Miranda would require suppres-

sion of any statement thereafter obtained from

White, at least absent a finding that he later

voluntarily retracted his request for counsel

and effected a knowing and intelligent waiver

of his Mirands rights.” 570 F. 24 194, 201.

Less than two years later, the court reversed itself in White's

second appeal, White v. Finkbeiner, 611 F. 2d 186 (1979), stating that

“a per se approach may be going too far toward protecting the rights

at stake” and that "[a)doption of a per se rule would lead to a

mechanical approach to the resolution of the particular cases we

face". 611 F. 2d 186, 191. In between the two White cases, the

District Court, for the Northern District of Illinois, followed

Williams v. Twomey and held that a per se rule exists. U.S. ex rel.

Sanders v. Rowe, 460 F. Supp. 1128 (N.D., Ill., 1978).

Other circuit courts are having difficulty determining this

issue as well. The Fifth Circuit recently acknowledged the per se

rule of Miranda in Nash v. Estelle, 597 F. 2d 513 (1979), but with a

proviso. It allowed for police inquires into the suspect's wishes if

his request for counsel is “equivocable". 597 F. 2d 513, 517. The

Nash court quoted Michigan v. Mosley, 423 U.S. 96 (1975), as support

for holding that when "a desire for immediate talk clearly appears

from the suspect's words and conduct, but he also states he wants a

lawyer (i.e., ‘I would like to have a lawyer, but I would rather talk

to you’), it is sound and fully constitutional police practice to

clarify the course the suspect elects to choose". 597 F. 2d 513, 517.

Not only does the Nash approach fly in the face of Miranda, which

holds that a request for counsel need not be explicit, 384 U.S. 436,

444-445, but the court's reliance on Mosley is inapposite. Mosley

dealt with invocation of the right to remain silent.

-ll-

=

4

wo

The Nash court has embarked on a slippery slope type of analysis.

Once the police determine that a suspect's request is equivocable, it

is a short step from “clarifying” the suspect's wishes .- subtly

coercing a confession. It is likely that a suspect will lose the will

to continuously reassert his rights when his, requests for counsel are

ignored-it appears futile. This is particularly true for the

unsophisticated suspect who has limited mental abilities combined with

a lack of familiarity with the criminal justice system. The police

have an affirmative duty to provide counsel prior to any interroga-

tion. Miranda v. Arizona, 384 U.S. 436, 474. They must be expected

to fullfill this mandate.

In Cobbs v. Robinson, 528 F. 2d 1331 (1975), cert. denied, 424

U.S. 947 (1976), the Court of Appeals for the Second Circuit similarly

began a case by case adjudication of when and how a suspect waives his

right to counsel after his request had not been scrupulously honored.

There, the record established that following a conversation with

police officers the suspect sta‘? that he wished to call his lawyer

before he “told them what actually occurred". 528 F. 2d 1331, 1342.

Cobbs was given free access to the telephone but instead of calling

a lawyer, he called his grandmother who came down to the station and

spoke with him alone. Cobbs then confessed. The court never even

mentioned the mandate of Miranda in its discussion of the issue. It

held that “Cobbs acted freely and voluntarily; and he knowingly and

intelligently waived his right to remain silent”. 528 F. 2d 1331,

1342.

In United States v. Grant, 549 F. 2d 942 (1977), cert. denied,

432 U.S. 908 (1977), the Fourth Circuit addressed this issue. It

determined that a heroin addict, who was suffering from withdrawal,

waived his right to counsel. After initially requesting a lawyer,

FBI agents sought identifying information from the suspect and stayed

to answer his questions concerning the procedures of his arrest.

Eventually, the suspect confessed. The Court held that Miranda did

not erect “an absolute per se bar on any conversation with the

accused by the investigating officers after the former has requested

l2-

te +

—_- > ra ™ ——— ~~ > - ~ rT

-

i -

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| 5

counsel. It only inhibits investigative interrogation related to the

specific crime itself." 549 F. 2d 942, 946.

The Sixth Circuit recognized the per se rule in Maglio v. Jago,

580 F. 2d 202 (1978), but reserved judgment on it. Instead, the court

based its decision on the accused's Sixth Amendment right to counsel,

and held that the accused did not knowingly and intelligently waive

«

his right. In U.S. v. Rodriguez-Gastelum, 569 F. 2d 482 (9th Cir.,

(1978) (en banc), a divided Ninth Circuit held that a per se rule

prohibiting such a waiver is neither necessary nor appropriate.

Case by case adjudication was preferr@g. 569 F. 2d 482, 487.

It is time for this Court to delinate what sort of attention

must be paid to a suspect's request for counsel. The Circuit Courts

of Appeals are floundering and carving out diluted standards. Their

holdings leave many questions unanswered. Do the police have to abide

by a per se rule against any and all interrogation of a suspect once

counsel has been requested? Can police question a suspect on

identifying data once he has requested counsel? What if that data has

already been obtained? Can the police reinterrogate on identifying

material? What obligation do the police have for providing a suspect

with an attorney? Miranda provides that police must make known to a

suspect that if he wants an attorney and cannot afford one, a lawyer

will be provided for him prior to any interrogation. 384 U.S. 436,

474. Is it enough to leave a suspect alone with a telephone? At the

very least, can a suspect withdraw his initial request for counsel

without the benefit of advice from counsel?

In adopting the per se rule in Miranda, this Court recognized the

coercion inherent in custodial interrogations. The rule, as stated in

Miranda, is clear and easily enforceable. A retreat from the rule

will require the courts of this nation to speculate in each case as

to the voluntary nature of any statement obtained after a request for

counsel is made. To hold, once this request is made and ignored, that

subsequent interrogation produces voluntary waiver of the rights to

remain silent and to counsel, is to ignore the very basis of the 4

holding in Miranda.

-13-

=e + . - —_—— — - - 7 - = —— we —— i wera

Certiorari should be granted in this case so that this Court can

settle the question of the validity of the rule prohibiting interro-

yation once a request for counse¥ is made. By reaffirming the per

se rule of Miranda, this Court can provide an enforceable safeguard

for those individuals attempting to exercise the Fifth Amendment

privilege to remain silent.

~

Il IF THIS COURT IS NOW GOING TO REVERSE ITSELF AND ALLOW POLICE

INTERROGATIONS AFTER A REQUEST FOR COUNSEL HAS BEEN MADE, THEN

THE TOTALITY OF THE CIRCUMSTANCES TEST NECESSITATES A FINDING

THAT WHITE'S CONFESSION BE DEEMED INVOLUNTARY SINCE HE COULD NOT

HAVE KNOWINGLY AND INTELLIGENTLY WAIVED HIS RIGHTS DUE TO HIS

LIMITED INTELLECTUAL FUNCTIONING AND HIS DRUG INDUCED STATE OF

MIND AT THE TIME OF HIS ILLEGAL ARREST.

This Court can decide, as the Seventh Circuit has, that the per

se rule prohibiting interrogation once a request for counsel is made,

as set forth in Miranda v. Arizona, is a “paternalistic rule pro-

tecting a defendant from his intelligent and voluntary decisions about

his own criminal case. Cf., Faretta v. California, 422 U.S. 806

(1975) and that it imprisons a man in his privileges. Adams v. U.S.

ex rel. McCann, 317 U.S. 269, 380 (1942)." 611 F. 2d 186, 191. How-

ever, even if this Court adopts this view, White's confession must be

suppressed. The recent case of North Carolina v. Butler, U.S.

+ 99 S. Ct. 1755, 60 L. Ed. 2d 286 (1979), reiterated and

elaborated the standard for waiver of Fifth Amendment rights first

established by Johnson v. Zerbst, 304 U.S. 458 (1938). Johnson

requires that waiver must be determined by “the particular facts and

circumstances surrounding the case, including the background,

experience, and conduct of the accused. The government must show an

intentional relinguishment or abandonment of a known right or

privilege". 304 U.S. 436, 464.

North Carolina v. Butler was not a case where the accused

requested an attorney. The accused orally waived his right to remain

silent but refused to sign the written waiver form. He then made

-14-

inculpatory statements. This Court stated:

An express written or oral statement of waiver

of the right to remain silent or the right to e

counsel is usually strong proof of the validity

of that waiver, but it is not inevitably neces-

sary or sufficient to establish waiver. The

question is not one of form, but rather the

defendant in fact knowingly and voluntarily

waived the rights deliniated in the Miranda

case. As was unequivocally said in Miranda,

mere silence is not enough...The Court must

presume that a defendant did not waive his

rights; the prosecution's burden is great...

U.S. » 99 S. Ct. 1755, 1757, 60 L. Ed.

2d 286, 357.

The Petitioner here did not knowingly and voluntarily waive his

rights as deliniated in Miranda. In Miranda, the Court said that a

valid waiver could not be inferred from silence or from the fact that

a confession was in fact obtained. 384 U.S. 386, 475. Miranda also

held “that effective waiver of the right to counsel during interro-

gation could not be recognized unless specifically made after the

warnings we here deliniate have been given". 384 U.S. 436, 470

(emphasis added). Clearly White made no “specific” or express waiver

of his right to counsel.

The Court of Appeals based its holding that White waived his

rights on two erroneous factors. The Court first noted that although

White was subjected to interrogation after his request for counsel was

made, those interrogations occurred without any knowledge of White's

Original request for counsel. The Court characterized White's request

as “off-hand". 611 F. 24 186, 193. The Illinois Supreme Court held

that White's request for counsel must be imputed to all other in-

vestigators. See, People v. White, 61 Ill. 2d 288, 294, 335 N.E. 2d

457, 461 (1975). Relieving the officers of responsibility for in-

forming other officers of a request for counsel can only invite the

invention of new strategies to produce coerced waiver of the right to

counsel. This distorts and erodes Miranda's principles.

The Court of Appeals also believed that the waiver was voluntary

because there was a delay of almost two days between White's request

for counsel and the interrogation that produced the confession. The

-15-

= i li ee ee eet ae ee Pe Pe es Ee —>

court stated that Whit. had time to “reflect on his previous request”.

611 F. 2d 186, 193. In reality, White had no time to “reconsider his

prior decision and evaluate the situation without the presence or

prodding of officials". (citations omitted) 611 F. 2d 186, 193.

After he requested counsel, White was immediately returned to his cell

but was interrogated again that same day and all of the next day

before he confessed on May 26th. (R. 36-40) Additionally, White was

placed in a line-up and was palm-printed on May 25th. (R. 42) This

is exactly the kind of coercion Miranda sought to avoid. Psychologi-

cal intimidation undermines the accused's Fifth Amendment right to be

free from compelled och f-inerinination: This is especially true

where White's request for counsel was not honored. The Court of

Appeals did not give due consideration to other factors concerning

the arrest and interrogation of White. Serious questions exist as to

the legality of White's arrest. The only evidence concerning White's

arrest comes from his testimony at the hearing before the District

Court. White testified that he was simply walking down the street

when he was arrested. (R. 10-11) Nowhere in this case has the State

even sought to establish probable cause as justification for White's

arrest.

Furthermore, at the time of the interrogation White was a 19 year

old youth, who according to Dr. Perez, the examining psychiatrist, had

an IQ of 76, classifying him as a borderline mental retardate. (C. 8)

Prior to his arrest, White testified, he had been “shooting”

amphetamines and described his mental condition as “paranoid,

hallucinating, you know, shakes, nervous". (R. 13) Officer Stannis

stated that during one of the interrogation sessions White said that

he used drugs. (T. 79)

The repetition of the Miranda warnings might have some limited

value on tending to lessen the coercive nature of the interrogation,

but the mere repetition of the warnings does not remove all coercion.

Brown v. Illinois, 422 U.S. 590 (1975). The fact that White actually

signed a waiver form as well as the written confession itself does

SS ee eee eC rt”—“‘“‘“‘“ im: CT ee a SC eee” —Cr—F..lhlrt (CSP: ( ”_- —_—- —-_ i -~ ee =

not establish the voluntary nature of either act. Worth Carolina

v. Butler, __ U.S. __, 99 S. Ct. 1755, 60 L. Ed. 2d 286, 292 (1979).

The Court of Appeals stated that the State of Illinois had a

heavy burden of proving waiver in light of the initial request for

counsel. 611 F. 2d 186, 192. Recognizing the inherently coercive

nature of police station interrogations, coupled with White's limited

intellectual abilities that were further impaired by his drug use, it

is impossible to accept that Eutues White made an intelligent and

knowing waiver of his rights to remain silent and to have the

assistance of counsel. 4

If this Court is willing to retreat from the per se rule pro-

hibiting interrogation once a request for counsel is made, the instant

case presents a factual situation which will allow this Court to set

Standards for evaluating when a waiver of rights obtained after a

request for counsel can be considered widbinneilae White believes that

the facts of record in this cause establish that he made no voluntary

or intelligent waiver of his rights, and that his confession should

not have been admitted against him during his trial.

a

= 6.

i

SION

Certiorari should be granted in the instant cause to clarify the

rights of individuals, subject to police custodial interrogation, to

the enjoyment of their Fifth and Sixth Amendment rights to be free

from compelled self-incrimination and to the assistance of counsel as

part of the Fourteenth Amendment guarantee of due process.

KENNETH L. JONES

Assistant Appellate Defender

Office of the State Appellate Defender

130 North Wells Street

Suite 2200

Chicago, Illinois 60606

(312) 793-5472

COUNSEL FOR PETITIONER

Assisted by:

Leslie Rosen

Second Year Law Student

Northeastern University School of Law

Boston, Massachusetts

-18-

7 oe ee

Tea Preortx or ree Stare or Iu >vors, Plaintif-Appellee, ©. Lorup

Wrort, Defeudant-Appellant.

(No. 71-70; Remanded.)

Feith, District--Mercd, 29, 3973.

1. CRIMINAL PROCFDURE. (§ 406)—Stete need not rely upon defenss

stipuletion as to death of victom—murder.

State had right to prove every element in aime charged and, in murde:

prosecution, W's not obligated to rely on defense stipulanoo as to death of

purported victim

2 HOMICIDE (§55)—«hen State & allowed to put on “lije and death”

witicases.

In murder tion, State is allowed to put on “life and death,” witnesses

to establish iccutity of deceased.

& SAME (§61)—when testimony, of “life ond decth” witness is properly

» 39

of purported murder victim's fnthe:, wherein witness, after test-

in eect that one of his two sons was killed, (astvied twice, in response

ped wp acy yey Attomey, that his son was seventeen years, Sve months,

six days old at time of ceath, would be held not so material as to have

4 CRIMINAL PROCEDURE (§ 249) State's Attomney may examine wit

nese regerding reenactment in which State's Attorney persicipoted.

For State's Attorney to examine witness reenactment of charged

murder allegedly reenacted by accused in presence officers and State's

+? oe * © oe ee oe

30 IILApp.34 914 People 0. White ms os

@ SAME (§301)—when evidence is inmfficient to support hypothetical

question sought to be asked of psychiarne expert.

geught to introduce oprrina testimony of psychiatric expert that such an mn

vidual as accused, whe under inciuence of drugs or sudering withdrawal

symptoms, might confess to crime he did not commit.

1. SAME (§295)—trie! court has unde diserction regarding edmisnon of

expert testimony.

Trial court has wide discretico in determining admissibility of expert testi-

mony in criminal prosecution.

& SAME (§.077)—when remand for hearing on admissibility of confession

ts warranted.

Where record contained no evidence to indicate that incarcerated murder

accused, who signed confession, was or was not given required Mirenda war-

ing prior to amy questioning, so that evidentiary recora was inadequate for

review of prepmety cf ¢i:missal of motion to suppress confession, Ap

Felts Court ould reverse and remand for new trial or could remand for new

and complete heanng on sam. ssibihty of consession.

®% SAME (§977)—whcn casc wall be remanded for hearing on admissibility

ef confession.

Where convicted murder accused who had signed confession while in-

earcerated, which confession was adinittea into evidence, did not receive full

evideotiary hearing in tal court on voiuntanness of contession, including

tights afforded him by Miranda case. Appetiate Court on appe:.i would remand

ease for new full and Somp!cte heanng on admissibility of coniession.

10. SAME A pa confession wes improperly edmiticd defendant would

be entitled to new triai.

If confession admitted into evidence in murder were held in-

edmissible as result of hearing directed on remand of case by Appellate Court.

conviction could be entered.

If confession admitted into evidence in were held

edmissible as result of heanng directed on remand of case by Appellate Court

tial court would enter new judumenc of conviction and indeterminate

008—3—4

APPEAL from the Circuit Court of St. Clair County; the Hon.

HAROLD ©. FARMER, Judge, presiding.

Poul Bradley, of Defender Project, of Mt Vernon, (Kenneth L. Jones,

ef counsel, ) for appellant.

016 People 0. White 10 I" Appd 914

Robert I!. Rice, State’s Attorney, of Belleville, (Philip C. Feder, As-

sistant State's Attorney, of counsel,) for the People.

Mr. PRESIDING JUSTICE CEORCE J. MORAN delivered the opin-

ion of the court:

Defendant appeals from a judgment’ of the Circuit Court of St Clair

County sentencing him to the Illinois State Penitentiary for a munimum

of 199 years and a maximum of 200 years after a jury bad found him

East St. Louis Police Depa:tment. He was interrogated for several hours

on that day, the morning and afternoon of the following day and in the

morning of the next day. In the afternoon of May 26, 1969, the defendant

signed 2 formal statement which contained his written

rights afforded him under the decision of the

Court in Mirende +. Arizone, 264 U.S. 436, 16 LEd.3d 634,

and 2 confession to the murder of Bruce Reinheimer. Later that day the

defendant allegedly reenactea the crime in the presence of police

:

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he did not remember giving the confession im question, and that be

The frst issuc is wisether the triai court committed reversible error it

allowing the introduction of irrelevant and immaterial testimony whca

inflamed the passions and pre; of the jury against the defendant

The State's first witness was the father of the deceased. The ccfe-we

edjccted to his testimony on the grounds that the only relevant testimony

that he could offer, that his son was dead, would be ostweighed by the

prejudicial efcct his testimony would have oa the fary The defense ano

!

30 Il App.sd 914 People o. White oi7

“seventeen years, five months and six days”. Later, in questioning, the

State's Attorney again asked the witness how old the sun was at the time

of his death. The response was the same, “seventeen years, five months,

six days”. During closing argument the Staye’s Attorney made a reference

tw the youth of the ceceased. He said, “This is a seventeen year old boy.

He was just a part-time man who had just started on his carcer in life.”

The appellant argues that such testimony by the father, especially the

detailed account of the age of bis Ceceased son was evidence introduced

tw inflame the pass‘ons of the jury against the defendant. In support of

his ment the appellant draws an anslocy to a line of cases which

hold that testimony concerning the family left behind by the deceased

is so infummatory that its introduction was reversible error. (State v.

Bernctie, 30 Il.2d 359.) The mule set down in Bernetic was that when

testimony elicited in a murder case concerning a family left behind

by the deceased was not elicited incidentally, but presented in such a

manner as to cause the fury to believe it as material, its admission is

highly prejudicial and constitutes reversible error, (Soe also People v.

Washington, 54 1!|_App.2d 467, and People v. Tajre, 55 IllApp.2d 479.)

Although there is an obvious difference between testimony concerning

the family left behind by the deceased and testimony which stresses the

youth of deceased at the time of his death, certainly a vatid anaiogy can

be drawn between the two. For the purpose of both types of testimony

when not elicited incidentally is to prejudice the defendant in the eyes

end minds of the jury.

However, there is another line of cases since the holding in Bernette

d to modcrate Bernett’s impact. For instance, in People ov.

UL2d $5, the court held that every mention of the deceased's

does not ipso facto entitle the defendant to a new trial, since

W.Se 15) Feovie v. Tillman, 116 WApp.2d 24. for similar

The court in Peovie v. Vasques, 118 ULApp.cd 66, explained

reversa). Rather, the court must

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018 People 0. Whits 10 Il. App.3d 914

gitls were culled by the prosecution as ‘life and death’ witnesses

to establish the identity of the girls and to the face shat they were

deceased. Counsel for the defendant says that he was willing to

stipulate to the identity of the girls and to the fact that they had

met their death by criminal means, However, the defendant

pleaded not guilty and the State had the right to prove every

element of the crime charged and was not obligated to rely on

the defendant's stipulation.” 4 Ill.2d at 203.

The court went on to hold that there was no undue emphasis in the proof

or in argument of the fact that the victims jeft a family surviving and

cases such as People v. Berneste arc not applicable. See also People v.

Cannon, 49 1i.2d 162, for a similar holding that life and death witnesses

could be put on. Thus, tho appellant's argument that he wisned to stipu-

late that the deceased was in fact dead and to his identity was not some-

thing which he could assert by night, for, as said in Speck, the State had

the right to prove every element in the crime charged and was not

obligated to reply on the defendant's stipulation. Also, the State is al-

lowed to put on “life and douth” witnesses to establish the identity of

the deceased.

@3> This issuc would have to be regarded as very close. However, in our

opinion, the testimony was not so material as to have a significant effect

upon the conviction of the defendant Therefore, we do not Snd reversible

error on this issue.

The neat issue is whether improper conduct on the part of the State's

Attorney deprived the defendant of a fair cial,

@4 The appellant argues that since the State's Attorney participated in

the alleged reenactment of the crime, it was inproper tor him to examine

the witnesses conceming the reenactment. We have found no cuthority

which holels that it is reversible error for u State's Attorney to participate

in 8 trial after he was @ participant in the reenactment of the crime for

which the defendant is being tried, In the absence of any authority on

this question, we cannot say that the State's Attorney commitied crror in

go doing. However, we find that the State's Attorney's participation in the

sonra t of the crime in the presence of the jury was highly undesir-

is improper conduct and in support of this argument cites People

: @ King, £76 Ill. 138, wherein the prosecutor stated his personal know!-

10 IL.App.3d 934 People vo. White 019

an opportunity to cross-examine him. However, People v. King is not in

int because the State's Attorncy in the present case did not claim that

knew the defendant was guilty, but rather, during Snal argument

@laimed that he did rot frame noz manufgcture evidence. We therefore

find no reversible error in this issuc. '

The next issue is whether the defendant was unfairly limited in ex-

amination of an expert witness.

@6 At the trial the defendant attempted to introduce the opinion testi-

mony of a psychiatric expert that such an individual as the defendant,

while under the influence of drugs or suffering withdrawal symptoms,

might confess to 2 crime he did not commit. The State objected to the

form of the question because it felt there was no evidence in the record

that defendant was hallucinuting at tho time of his arrest. In support of

his claim, the defendant cites People v. Yonder, 44 11).2d 376. The appel-

lant contends that Yonder stated that a proper hypothetical question

must be limited to facts supported by the evidence in the case. but may

also be limited to those facts favorable to the questioner, However,

Yonder a)so stated that in asking o hypothetical question, a party may

include only proved facts. There were no proved facts that defendant was

suffering hallucinations at the time he gave the confession.

The appellant alss cites People v, Penman, 271 1. $2. in which it was

held unproper to exclude an expert's opinion as to the effects of cocaine

poisoning based en an cvamination a day after the occurrence and with-

out any specific testimony that the drug defendant had taken was in fact

cocaine. However, Penman can be distinguished from the present case.

For in Penman there was evidence of the defendant's condition symp-

toms, the cause of which a witness having expert knowledge of the efect

of drugs might form a reasonable opinion which would be a proper basis

from which the jury might reasonably infer the taking of a particular

drug. In the present case there was no evidence of conditions and symp-

toms at the time of the interrogation and confession which would allow

the jury to infcr the taking of a particular drug.

@7 Rather, it is submitted that the court properly determined that

there was insufficient evidence in the case to the hypothetical

tion, and it has been held that the trial court has a wide degree of

in determining the admissibility of expert testimony. In People

@ Oberlander, 109 Ill App.2d 469, the court held:

“It has been well established that the admissibility of expert

testimony is to be determined by the trial judge and a wide lati-

tude of discretion is given to the court in the determination of such

ep cr ene ey Cy PREY Senene Be

at 471.

eel

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920 People 0. White 10 I1LApp.2d 914

We Bnd no merit in this contention.

The last issue is whether the trial gourt erred in denying defendant's

motion to suppress the confession,

Defendant was arrested on the morning of May 24, 1969 by two police

offcers from the East St. Louis Police Department and inca ‘cerated in

the East St. Louis jail. He was questioned by a Lieutenant Johnson of

the East St. Louis Police Department on the morning of the 24th and by

William J. Stanis, an officer of the East St. Louis Police Department that

afternoon. The record does not reflect whether he was advised at any

time on that day of the rights afforded him by the decision of the United

States Supreme Court in Miranda v. Arizona, 384 U.S. 436, 16 Ed.2d 694,

86 S.Ct. 1602. Defendant was questioned again in the morning and after.

noon of the second day by Stanis, and again the record does not indicate

whether or not he was advised of his Mirande rights any time on that

day. He was again questioned by Stanis in the morning and the afternoon

of the third day, May 26, 1969, and on that afternoon in the presence of

Stanis and of Captain Cornelius O'Sullivan, signed a written confession

to the murder of Bruce Reinheimer, which reads in part:

“DEPARTMENT OF POLICE

East St. Louis, linois

Date: May 26, 1909

Time Started: 12:45 P.M.

Time Completed: 1:30 P.M.

STATEMENT

I, Eutues White, have been advised by Capt. C. O'Sullivan and

Det. W. Stanis that I have a right to remain silent and that 1 do

Having been advised of these rights as above, J bereby voluntari'y

Coe S nah Getenet, & easwes questans Gilad of we end i

my

state that I have not been threstened or mistreated in any fashioa

—

10 I1LApp.3 914 People v. White @21

por have any promises of leniency been made to me in return for

making this statement.

As/ Capt. C. O'Sullivan eo /s/ Evtues White

Witness .

/s/ Det. W. Stanis

Witness”

A fair reading of the record, including the language quoted in the

above statement indicates that the Miranda warnings were given on the

third day of defendant's incarceration, just before the statement was

taken. The record does not reflect whether any Miranda warnincs were

or were not given on either the first or second day of his incarccration.

Evidence surrounding the questioning on May 24 and 25 might disclose

that the questioning was done without the Miranda warnings. Under

such circumstances it could well be # deprivation of defendant's rights

against custodial interrogation if the questioning resulted in an inculpa-

tory statement or confession, notwithstanding the fact that the written

statement, when prepared and signed following the questioning. con-

tained the requisite advisory of rights and a waiver thereof. (Westover v.

United States, 384 U.S. 426, 18 L.Ed 2d 694, 86 S. Ct. 1602), After the

hearing, the motion to suppress the confession was denied without any

finding; of fact or conclusions of law.

In Miranda v. Arizona, the Supreme Court of the United States said at

384 US. 444-445:

"Our holding will be spelled out with some specificity in the

pages that focow but briefly stated it ‘s this: the prosccut'on may

pot use statements, whether exculpatory or inculpatory, stemming

from custcc!n) interrogation of the defendant unless it demon-

strates the use of procecural safeguards effective to secure the

privilege against seif-incrimination. By custodial interrogation, we

mean tioning initisted by Jaw enforcement ofScers after a

been taken into custody or otherwise deprived of his

Tctem of aation te cay stgaiesnt way. Ao for the precedun!

+ dete.

~~. TS

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e22 People v. White 10 IILLApp.3d 914

however, he indicates in any manner and at any stage of the

process that he wishes ‘o consult with an attorney before speaking

there can he no questioning. Likewise, if the individual is alone

and indicates in any manner that he does not wish to be inter-

rogated, the police may not questien him.”

@8 Since there is no evidence in the record to indicate that the defend.

ant was or was not given the required Miranda warnings pnor to any

questioning, we find that the evidentiary record before us is inadequate

for a proper review of the propriety of the trial court's dismissal uf the

motion to suppress the confession. Under these circumstances we can

reverse and rcmand the case for a new trial because the trial court erred

in overruling defendant's motion to suppress the confession, or we can

remand the case for a new full and complete hearing on the admissibility

of the confession covering the tine when defendant was Girst taken into

custody up until the time he gave the confession.

The latter procedure was used by our Supreme Court in People v. Mc-

Guire, 35 11).2d 219, where the court said at 229:

*¢ © © We believe that this ease should he remanded, not for a

f@ll new trial, but for a new hearing on the admissibility of the

defendant's statement. At such a hearing both parties will have an

opportunity to present further evidence. [Cases cited. )”

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

United States Supreme Court held that in habeas corpus proceedincs

instituted by a State prisoner, a Federal district court must hoid an

evidentiary hearing if the applicant did not receive a full and fair

evidentiary hearing in a State court, cither at the time of the trial or in

a collateral proceeding; a Federal evidentiary hearing is required un'ess

the State-court trier of fact has after a full hearing reliably found the

relevant facts. The court went on to say at 372 U.S. 314:

"We hold that a federal court must grant an evicentiary hearing

to a habcas applicant under the following circumstances: 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 emplovid

by the state court was not adequate to afford a full and fair hear-

fing: (4) there is a substantial allegation of newly discovered evi-

10 MLApp.3d 914 People 0. White 923

forded him by Miranda, it is apparent that he could obtain such a heasing

ta the proper Federal district court if his conviction should he sustained

by the courts ¢! review of this State.

@10,11 This case is remanded tw the,Cirevit Court of St. Clair County

for a new fill and complete hearing onthe admissibility of the defend.

ant’s confession If the confession is bi id inadmissible, the bia} court wil!

vacote the judgment of conviction and grant the defendani » new tio).

If the confession is beid admissilic, the trial court will enter a new

prgnnent of convi tion (People 0. Stork, %3 11.90 616, 623; People v.

Jackson, 31 Id 408, 411; People 0. McGuire, 35 11).2d 2)9). and impoze

ea indeierminate senteuce pursuvat to the sentesing provisions of the

new Code of Criminal Corrections. (1l!. Rev. Stat. ()972 Supp.), ch. 38,

pars 1COS—8 -1(a), (b)(1) and 1008..2-4). People », Lobb, 9 WLApp.

3d 680, People v. Mize, 9 ILApp3d 617.

Remande3 with directions.

EBERSPACHER and JONES, JJ., concur.

APPENDIX B

ee Ce ee “gi

4 wings

Taz Pours or no State we Lesvos, Plaintid -Appelles, o Eovvi:

Wana, De'endant-Appeliant. .

(No. 73-142; Judgment altiiued.)

Fift, Distict—Scptember J6, 1974.

1, CAIMINAL PROCEDURE (§ 333.25)—Stere need only muke prime foci

ease that confession wes voluntery—murder,

At bearing o. motior to suppress deferdent’s wurder suntession, it is only

mecessary that prosecution make cut prima facie case that confession was

voluntary before defendant is required to present sume evidence.

& CRIMINAL PROCEDURE (( 501.5)--wher tia? Court ney occept as trus

Offcer’s testimony that defendant did not osk for ctiomey.

Where defendant, at hearing on motion to suppress his newrder confession

failed to present any evidence to contradic: police coptein's testimony that

defendant did not ask for lawyer but merely sisted that he gid not wish to

talk to police, trial court could in its discretion accept captain's testimony

3%. CRIMINAL PROCEDURE (§ 334) —defendent’s cloim thet his refucal 2

’ talk precluded police from seeking retraction held to be without meri.

Where there was no evidence that any persistent police exhortations of ce

fendant occurred, defendant's claim that his refusal to talk precioded police

from seeking retraction at later time was deemed without merit.

& CRIMINAL PROCEDURE (§733.70)—objection to Stete’s feilure

produce material witnesses to confession cannat be raised for firs: time on

.. Defendant's failure to object to State's failure to preduce material wimese:

a “ oaahy conviction ( Rev. Sint, 197, ch. Ban

= saat » . py.

1lé—11(d)). ' ,

& CRIMINAL PROCEDURE ({ 964)—Appeliate Court's function in resiew

txg senicnes.

;

#2 LW App.3d 180 People o. White 131

In reviewing sentence imposed by trial court, it ix not Appcliste Court's

function to deic: mine propriety thereof based on who! it might have done but

to deternine whether trial court exmuised proper discetion in deciding wpoo

sentence impased :

& HOMICIDE (§ 111)—sentence upheld ‘upon reoiew where record dus

» Closed ne mitigating cinvwnsiances. murder.

Where defer.Jsit’s simed confess’.n described premeditated murder of

particviarly cacegioue »e'ce, committed im senscless anc cold-b! ude: ma:

per, record disclosed ne mitig.'ing eeumetance:. and jury that convicted

defe.dont rec» mendes deoth peualt, def.dant’s 68 te 19S year p<-Jient-

ary scotence v us not reduced by revicewng court

‘C MORAN F. }., A.sseuting

‘

" APPEAL from the Cinuit Court of St Clair County; the Hus. 27AR

OLD ©. FAXMER, Judge, preridine

Robert Farrell and Margaret Maxwell, both «! State Appel'ete De

fender’s Office, of Mt Vernon, for aj petlant

Robcri H. Rice, State's Attorney, of Belleville (Philip G. Feder, As.

sistant Stutc’s Atturmey, of counsel). for the People.

Mi. JUSTICE EBERSFACHER delivered the op'wion of the court

The defendant, Evtucs White, was convichJ of nurde: ob-a jury

verdict in the circuit court of St Chur Coun!» nd senteuced to the Ik-

nois Staie Penitentiary for > s.inimucn tern: of 129 yests and a marin. on

tern of 200 yca:s. On direct sppeal this court remcided the cause to the

trial court for a second evidentiary hearing to dei‘ermine whethe: ibe

Gefendant’s confession \-as properly admitted into evidence and to

tesentence the defendant purruant tu the new (ode of Criminal Corree-

tions. (People o, White, 10 Il App 4d 9)4, 295 N_E9d 300.) Subsequentiy,

the trial court Leld a second evidentiary hearing to determine the ad.

missibility of the defeudant’s confession. After determining that the coo-

fession was properly admiitty2 into evidence, the tial cout entered a

new judpynent of conviction and imposed a sentence of 68 to 198 years

:

>

:

|

ee ae i A ta i ee

182 People v. Whit. 22 D_App.3d 180

his right to remain silent and to have the advice of an attorney and thst

such attempt was frustrated by the investigating odicers. Next, it is as-

serted that the trial court erred in denying the motion to suppress the

confession of the defendant because'the State failed to call all material

witnesscs to the confess.on.

Only two witnesses testified at the second hearing on defendant's motion

to suppress, Detective William Stanis and Captain William Johnson of

‘the East St. Louis Police Department. Detective Stanis testified that the

defendant was arrested on May 24, 1969, and that he was advised of bis

rights at that time. According to Detective Stanis, the defendant did not

make a statement on May 24, 1969. Detective Stanis interrogated the

defendant on two occasions on May 25, 1969, and be alleced!y informed

the defendant of his rights on each occasion. When Detective Stan's was

asked how the defendant responded when he was informed of his rights

for the first time on May 25, the detective stated, “In essence, he waived

his rights, that he would talk to me.” Next, Detective Stan's answered

affirmatively to the question: “At that time did be [defendant] state to

you that he wished to make a statement?” The witness then identuled

“People’s Exhibit No. 1” as the statement made by the defendant on the

morning of May 25, 1S€9. The witness testiZed that the defendant wsheé

to make another siate:nent on the afternoon of May 25, 1969. The witness

identified “Pcop'e’s Exhibit No. 2° as that statement

The two statements made by the defendant cn May 25, 1969, pertain

to the alleged murders other than the murder charged in the instant case.

Detective St-nis stated that the defendant did not make a statement on

May 24, or 25, concerning the al’eged murder in the instant case.

stitutional rights, that be knowingly chose to waive those rights, that no

force, threats or promises were used to induce the defendant to confess

William Johnson, Detective Stanis’ superior, testified that he

with the defendant briefly on the day of his arrest, May 24, 1969.

Johnion informed the defendant of his rights and asked if he

to talk. Captain Johnson testified that the defendant said, “he

@idnt want to talk about it; he would rather see a lawyer.” The witness

stated on three other occasions on dircct examination that the defendant

Yformed him, Captain Johnson, that he would rather talk to a lawyer.

‘After the defendant said that be did not wish to talk, he was placed

a eS

£3 Il). App.3d 150 People 0. White 133

back in a cell. Captain Johnson did not know whether the defendant made

a phone call or talked to an attorney. Captain Johnson testified that he

then turned the case over to Detective Stanis.

After Johnson had been excused, as a witness, counsel approached the

bench and ao unrecorded colloquy jpok place, the defense counsel then

informed the court that the defendant did not wish to testify The State's

Attorney then recalied Captain Jobnson to the stand. Captain Johnson

then gave the following testimony:

“Q. Lf someone asked for a lawyer it is the practice of your de-

partment to see that they are able to get a lawyer?

A. If be had asked for a lawyer I would have given him the

phone there on my desk and let him use the phone.

Q. When you said that he wanted to speak to a lawyer, do you

mean that he asked, that he wanted to retain a jawyer?

A. Well, I am not sure this is what the words that he said but

ee ee ee ee in the cell

Q. Well, could it have been that you just assumed when you

were secing him that he wanted a lawyer, since he didn't want to

talk?

A. Yes.

Q. If he had asked for a lawyer would Detective Standis [sic]

have been notiBed of that fact.

A. He would have been, yes.

Q. Would any questioning have proceeded before he was able

to talk to one?

A. Not to my knowiedge.”

On cross-examination, Johnson was asked the following questions and

gave the following caswers:

“Q. Captain you testified just a moment ago that you talked to

Eutues White when be drst came in, to see if you knew hin—

Vv

184 People 0. White 22 Il_App-3d 180

Q. Now, I know that a lot of what police officers testify to is

based upon years of experience in a routine way of doing things,

you say, he had asked for a lawyer, I would have let him use my

Phone; can you say specifically in this case that Cutues White

didn’t ask for a lawyer?

A. No, he didn’t ask for a lawyer.”

The State's Attorney then recalled Detective Stanis. He testified that

the defendant never asked for an attorney, that if the defendant had

requested an attorney, he, Stanis, would have been advised and that if

the defendant had requested an attorney, he, Stanis, would not have

questioned the defendant further.

This court's decision in the instant case depends upon our in‘erpreta-

“Well, cou'd it have been that vou just assumed when you were seeing

him that he wonted » lawyer, since he didn't want to talk?”

eee il al OS -

LL a ee “7 =

at F :

uy

i

$2 Mi_App.3d 180 People 0. White ss

im the instant case in People v. Pittman, SS 111.20 39. 302 N_E_2d 7. Therein

answer any questions pertaining to the crime of wh ch he wos

charged. It is of interest that in Crip defendant's state nent. given

several] months after the improper questioning, was held admunble

because defendant was fully informed of his rights” (SS U2d

' , at 55-56.)

The supreme court continued by finding that:

“In tLe present case over 24 hours had elapsed between the bme

that Williams informed police he did net wish to speak and his

denied, 405 U.S. 932) and Crisp.” (55 M.2d at 35.)

Thereafter the court held that the trial court did not err in concluding

that these statements were voluntarily made. Since there is no evidence

that “any persistent police exhortations” of the defendant oceurred in the

fastant case we fird no merit in defendant's claim that his refusal to talk

precluded the police from seeking a retraction at a later time. See also

United States c. Collins (2nd Cir. 1972), 462 F.2d 792, People ©. Brook-

shew, 12 ILApp 34 221, 2999 N.ESd 2.

The defendan® also centends that the trial court erred im ruling that

the confession was admismbie because the State failed to call all moteria!

fs

af

i

ile

if

ff

Hi

lit

¥ hearing

suppress. it is crucial, however, that the defense did not obiect

's failure to enti Captain O'Sullivan im the trial court.

7

Ht

|

|

|

2.F

i

:

!

|

186 People v. White 22 IlApp.3d 180 -

made in the trial court,” (I. Rev. Stat 1971, ch. 38, par. 114—11

(d).)

The committee comments to that s state, “The second sentence of

subsection (d) clanfes a problem of considerable uncertainty io the

Illinois cases.” S.H.A. ch. 38, §114—11(d), committee comments, at

£15 (1970).

Three of the four cases cited by the defendant were decided prior to

1964. (People v. Williams, 26 111.2d 190, 186 N.E.2d 353; People o.

Wright, 24 10.2d &S, 180 N.E.2d 659; People v. Sammons, 17 Il).2d 216,

161 N.E.od 322.) The only post-1964 case cited by the defendant is

People v. Armstrong, 5) 11).2d 471, 282 N.E.2d 712. That case is dis-

tinguished from the instant case, however, since the defense attomey

did object to the State's failure to call a material witness in the trial court.

@4 In People v. Harper, 127 IllApp2d 420, 262 N.E.2d 295, cert.

denied, 404 U.S. 1062, it was beld that the defendant's failure to object

to the State's failure to produce a material witness at the hearing on the

motion to suppress a confession precluded entertainment of the objection

on appeal, Since the defendant in the instant case has failed to advance

any reason which would permit circumvention of the foregoing statute

we will pot entertain his objecton to the State's failure to call a material

witness which is raised for the first time on review.

The defeadant’s final contention is that the sentence imposed upon bim

was excessive, Originally, the trial court imposed a sentence of a mini-

mum of 199 years and a maximum of 200 years in the penitentiary. After

remandment the trial court resentenced the defendant to a minimum of

66 yeurs and a maximum of 198 years in the penitentiary,

@5 In reviewing the sentence imposed by the trial court it is not our

function to determine the propriety thereof based on what we might have

done. Rather we are to determine whethe: the trial court exercised proper

discretion in deciding upon the sentence imposed. (People v. Taylor, 33

W2d 417, 211 N.E.2d 673, People © Moore, 8 IlApp.3d 1059, 291

N.£E2d 519.) In People v. Latson, 5 IlApp.3d 1100, 284 N.E2d 436,

the court offered the following guidelines for the review of the sentence

#2 ID. App.3d 180 People o. White 187

from considering other factors which are in the record. The defendant's

signed confession desenbes a premediated crime of a particularly egre-

gious nature, committed in a senséless and “cold-blooded” manner. The

fury that convicted the defendant in 1469 recommended the death penalty.

@6 Sentences exceeding that imposed in the instant case have been

upheld in severe cases. (E.g., People v. Malcom, 14 Ul.App.3d 378, 302

NE2d 352; People ©. Richords, 120 WLApp.2d 313, 256 N.£.2d 475.)

Given the nature of the offense, the manner in which it wes committed,

and that the record discloses no mitigating circumstances. the sentence

tinposed by the trial court will not be reduced by this court.

For the foregoing reasons the judgment of the circuit court of St. Clair

County is aflicmed.

Judgment affirmed.

CREBS, J., concurs.

Mr. PRESIDING JUSTICE GEORGE ]. MORAN dissenting:

The majority opinion poses the main question as to whether the trial

court could find defendant's confession to be voluntary according to the

manifest weight of the evidence. However, the principal question is

whether or not the defendant at any time prior to the signing of hus

statement requested an attorney and if he dic, the statement is inadmis-

sible in evidence. Miranda v. Arizona, 3$4 U.S. 436. 16 LEd 694, 86

$.Ct. 1602; United States v. Blair, 470 F.2d 331; People v. Turner, 56 10.

Sd 201; People v, Henenderg, 55 I1.2¢ 5.

The record discloses that the deferdant is a borderline retardate with

an 1.Q. of 76, who signed a confession after 3 days of questioning by the

police. He asked for an attorney on the morning of the first day of his

questioning. The confession was therefore inadmissible.

APPENDIX C

The PEOPLE ef the f(rte of iilaete,

Apaclice,

7 Selinke

a

| » Matec WHITR, Appationt.

1 Ma 47088.

Supreme Coart of Niisoln

| Bept 28, 3975. as ‘

Ge? 1 BW . “ . wt yl ee

Defendant was convicted in the St

QCiair County Cirenit Court, Harold 0.

Farmer, J. of murder, and he appealed.

' The Apreiiate Coors, 10 DlApptd 914, 295

N.E2d 300, remanded On remand the *

, Clreait Court entered a new judgment of

| Comviction, and defendant appesied. The

| 22 MLAppd 180, 317 N.

tit

fer.

it

ek

itt

i

i

458 TL

1. Ceiminal Law @412.2(1)

Notice of deiendant’s request for at-

torney, given to police captain who origi-

nally advised defendant of his constitution-

al rights was imputed to police detective

who subsequently questioned defendant

2 Crimina! Law 412.213) ‘

*

Miranda warnings are prophylactit

‘measures Gesigne? io guard against in-

fringement of privilege against s¢!f-incrim-

ination 3

BR Criming! Lew @2517.2Q). se

Failuse to finish defendant an attor-

acy when he seguested one at tine of bic

areest dil not require exclusion of sulre

quent confiasion where confession was

“ made three days after request and after

defes tant had Lecm repratedly adincnisLed

as to his rights and had waived such rights

_ and confessed to cthes untelsted offenses

3 = ee

Peul Bradley, First Deputy State Appel-

fate Liclender, Chieszo (Margares Max-

well, Asst State Ap <late Defender, of

wounss!), for ap; /auk

Willinin J. Scott, Arty. Gen Spri: cfield,

and Robert A. Rice, State's Atty. Balle-

ville (James B. Zecl, Jayme A. Carr, and

Brian A. David, Aut Attys Gen, of

+ | Counsel), for the People. ee ’

aa | mG Wt sg as. -

v= Csir County, by.« jury which, acting an-

' ded the authority of the statute then in ef-

* fect, recoma.cnded the death penalty. He

.

835 NORTH EASTERN REPORTER, 94 SERIES

dicate that the defendant was or was not

given the required Mironde warnic.gs prior

to any questioning.” The case was there-

fore remanded to the trial court fo: “a

new full and complete hearing on the ad-

missibility of the defendant's cor.fession.”

10 JI.App3d 914, 295 N.E.24 300 (1973).

Upon remand, a hearing was condccted.

The trial court found that the confersio-

wes properly receive:! in evidence, ard en-

tered a new judgmer.i of convictior and a

mew indeiemninate se~ience in acc: -dance

- with the Unified Cove of Corrections

(ULRev.Stat 1973, ch. 38 par. 100)-1-1 «/

44g.) The defesdant agaic ap-eried Or,

this appeal » majority of the appellate

court held that the trial court did not err

in finciing that the defendart’s ora) and

Written Slattiments were voluntary. (22

NLApp3d 180, 317 N.E2¢ 323 (1674).) °

Une judge dissented, pointing ovt that the

“record disclose: that the defender: is a

borderline retardaic with an LQ ci 76”

who initially asked for en attcrrey but

then “signed @ confession after thre days

of questioning by the police.” It war the

epinion of the dissenticg judge that the

confession dbould have deen excluded im-

Ger Mirends , Arisona (1966), 384 1S.

4%, 8 S.Ct 1602, 16 LE<2d 6%. Vc al-

lowed leave to appeal. The only issue be-

fore as is the admissibility of the confer

-

| "The defendant was arrested on the

morning of May 24, 1969, for an unrelated

‘effeuse, What then occurred is described

im the testimony of Captain Johuso- of the

East St. Louis police force:

“State's Atturney: Q: To the bes!

of your recollection what were the

events that transpired at the tice that

you met Mr. White on that day? °

A: Tt was brief, I advieed his. of

bis rights; 1 asked hie if be would care

to talk ebout whatever the offense was

at that ‘time, and he said be didc't want

. talk ebout it; be would rather sce 2

Cite as 323 N.E36 457

Q: Was he given an opportunity at

that tine to make a telephone call?

A: Yes—I am not sure—although he

was taken from the office there; he was

in my office where he could have made

8 phone call

Q: He understood then at that point

be didn’t have to say anything to any-

body ?

A: That is right

Q: What was done with him after he

said that te cidn’t wish to make any

statement?

“ A: To my recollection be was placed

back im the cel! bluck.

A: ni harcndecnedial a terns

stood it.

Q: To your knowledge did he ex-

press his understanding of that state-

ment?

A: Yes, he said that he would rather

ece a lawyer.

Q: Doyou know of your own know!l-

edge whether he ever talked to a pee:

after that point?

A: No, I don’t.”

The significant portions of Captain

Johnson's testimony on crose-examination

aré as follows: .

". “Q: -So that you initially talked to

him and gave him his rmghts, and gave

him his rights [nc), and he said I don't

choose to make a statement at this time;

I would rather have a lawyer?

A: That is right.

Q: Theo did you turn the matter

over to detective Stannis [ sic)?

A: That is right.

* ec . * 7 °

Q: Are you quite certain he said that

he wanted a lawyer or he didn’t want to

make a staiement ?

.

A: Yes, that is what he said: I~

dido’t talk to bir long.

“ . * ° « “~e

Q: Well, is it your testimony he was

refused an opportunity to call someone

of his choosing or to have someone ap-

+, point a lawyer for him?

A: He was refused?

Q: Yeu

A: a Gp on Gilat te wes

refused; I azn saying one thing: J

talked with hin; he said that he would

rather talk to a Jawyer; he didn't want

to talk, so then the conversation ccased.

Q: As we know, he was then re-

turned to bis cell, I assume? _

A: Yes.”

Then, after a recess, Captain johnson

was recalled by the prosecutor, and testi-

fied:

“Q: If someone asked for a lawver is

it the practice of your departmert to see

that they are able to get a iawyer?

A: If he had asked for a iawyer I

would have given him the phone there on

my*desk and let him use the phone.

Q: When you said that he wanted to

speak to a lawyer, do you mean that de

_ asked, that he wanted to retain a law-

yer? ‘s

A: Well, I am not sure this is what

the words that he said but he-didn’t want

oa ee

im the cell block. . '

‘Q: Grdik dints be have teak tet pat

fest assumed when you were secirg him

penn + eh amas since be dida't

went to talk? -

A: "Yeu. Ei ee eX

Q: bh Gia tine nian & tuber

would Detective Stannis (sic) have been

motified of that fact?

A: Me world have been, yes.

1

460 (DL «388 NORTH EASTERN REPORTER, 24 SERIES

: Q: Would any questioning have pro

ceeded before he was able to talk to

onc?

A: Not to my knowledge.

Q: This is important, | want to get

_ this straight; did he specifically ask you

and say, | want a lawyer; | want to talk

to a lawyer?

a A: No, he eever sched me about he

wanted to talk to a lawyer; he didn't.

want to talk to me, so I would assume

that he would rather have a lawyer there

- present but he didn’t ask for one; if he

"aad he would have osed the phone there

on wy desk

—

Q: Now, I know that a lot of what

police officers testify to is based upon

_ years of experience in a routine way of

doing things; you say, had he asked for

a lawyer, | would have let him use my

phone; can you say specifically in this

ease that Eutes White didn’t ask for a

-- lawyer?

* . A: No, he didn’t ask for a lawyer.”

id

+ Thereafter, the defaodant was turned

ever to Detective Staais, wSo questioned

him later of May 24 and also during the

morning aod afternoon of May 25 concern-

- fing warelated offenses. On each of these

three occasions, Detective Stanis testified,

the Mireade waruings were read to the de-

. dendant, who said that be understood them.

‘On the morning of May 25 the detendan* .

| signed « writtes coniession to one unrelat-

y” qd offense, and on the afterncon of that

= @ay he signed another confession to ancth-

ef unrelated offeose On May 25 the de-

~ femdent was also exbidited im a lineup and

* fle palen print was taken.

At the origina! hearing on the motion to

.' uappeens the confession, Captain O’Sellivan

.\ * Qpetified that the defendant was advised of

‘> bie coastitutional rights by Detective Stan-

-* ty whe read “the rights” w bim from «

= end Captain O'Sullivan was asked :

“Q: Do you recall at this tome what

was stated in advisirg this defendant of

his rights by your partner?

A: He was advised . . . What

was in the card, you mean. He had a

right to remain silent The gist of it

was he could have an attorney if he so

*.,meeded. What he said could and would

be weed agair.st him.

Q: Whs he also advised if he could

not afford an attorney, one would be

furnished?

A: Yeu. He could have “one, yes.

That is what I said

——s

° 7 * 2 * *

Q: What did he say when you told

him he had the right to have an attorney

present at the time of this statement?

A: .He said he didn't need one.”

At that hearing Detective Stanis testified

that he “read from a card furn:shed cur

Deparunent from the State's Anorney, ad-

vising the sudject of his rights.” The di-

rect examination continued :

“Q: Did you advise him he had the

right to have an attorney?

A: Yes sir.

Q: Wet 68 te Gy © San Did

be want an attorney?

A: To be truthful, I can't say exact-

ly what his answer was on that | don't

remember.

Q: Did he tell you be wamed an ot-

torney?

A: No, he did not state he wanted an

Q: Did you tell him if be did and

coulda’: afford one, he would be fur-

nished an attorney’

A: Yes, sir.

~

IV

‘a

~

‘

' YPROPLE v. WESTE

Cite os 5 N.B2e 4s?

would talk to you and wasted to give

_ you 8 statement?

A: He stated he would talk with us

. Q: He did not refuse to talk to

“you?

A: No, sir.”

On cross-examination of Detective Stan-

is, the following occurred:

“Q: You said you seemed to be a lit-

tle concerned about your answer as to

“4 what he said when he was advised of his

right to have an attorney before making

-@my Statement. You are saving you

don’t remember what he said. You are

pretty sure he didn’t or you think he

* didn’t say he wanted one. Could you be

- more explicit as to what the conversation

was?

A: When cach point was read to him

be was asked if he understood and he

said yea. That was one of the points

read He understood it And he made

fo comment if he wanted a lawyer.”

" Im our opinion the record establishes that

im his interrogation by Captain Johnson,

the defendant stated that he desired coun-

sel and did not desire to talk. Captain

“Johnson's initial testimony on this point

was unequivocal, both on direct examina-

tion by the prosecutor and on cross-exami-

mation by counsel for the defendant It

* was only after he was recalled by the pros-

_- @tution after a recess that his testimony

: became equivocal and he began to refer to

~: the “practice of the department” and the

like. We are unable, therefore, to agree

with the view of the majority of the appei-

late court that “Since the defendant failed

The defendant testified that he did not re-

«?

™ 461

member any of the interrogations or the

signing of the confession.

{1} The record is mot clear as to

whether or not Detective Stanis was ad-

wieed that the defendant had told Captain

Jehason that he wanted to talk to an attor-

mey. But that is not significant because

qe notice given to Johnson is imputed to

hmm. “To hold otherwise could make it

possible to nullify an accused's request for

the assistance of counsel by the expedient

of transferring his custody for questioning

to an officer who would be unaware of the

request for an attorney.” People v. Blon-

cherd (1967), 37 102d @, 73, 24 N.F2d

813, 814.

The defendact’s contention that his eon-

fession was erroneously admitied in evi-

dence is based upon Sfirands v. Ancone

(1966), 384 U.S. 436, 86 S.Cx 1602, 16 J.

Ea2d 664. In Miranda the court staics:

“0 © © Jf [the accused) indicates

im any manner at any stage of the proc-

_ eas that he wishes to consult with an at-

torney before speaking there can be no

questioning.” 384 U.S. 436, 44-45, &

S.Ct, 1602, 1612, 16 LEa2d 634.

“0 @ © the right to have counsel

present at the interrogation is indispens-

able -to the protection of the Fifth

Amendment privilege.” 354 U.S. 4,

469, 8 S.Cu 1602, 1625, 16 LEd2d 6%.

“° © © If the individual states he

wants an attorney, the interrogation

must cease until an attorney is present”

384 U.S. 436, 474, 86 S.Cr oe le

~ (1964), 378 U.S. 478, 84 S.Ct 1788, 12 L

E424 977. From the. outset, however,

there has been disagreement with what

would appear to have Leen the imphert

holding in AMirende that the right to coun-

_ gel attached prior to the making of a for-

mal charge against a defendant. Indeed,

dissent from that view appeared in Escode- -

do itself. (See the dissenting opimon of

-- Mr. Justice White, 378 U.S. 478, 495, &

$.Ce 1788, 12 LEd2d 977.) Further

- doubt that there is a sixth amendment con-

stitutional right to counsel! before a suspect

has been charged with an offense stems

from Kirby v. Illinois (1972), 406 U.S. 682,

—92 S.Cu 1877, 32 LEd2d 411. There the

court sefusedsto accord to an unindicted

suspect the right to have counsel present

Goring a linteup—a right which Unwed

Stetes v. Wade, 388 U.S. 218, 87 S.Cr

- 9926, 18 LEd24 1149, and Culbert v. Cali-

* fornia, 383 U.S. 263, @ S.Ct. 1951, 18 L

Ed2d 1178, had accorded persons who had

been formally charged with an offense.

And there the statement that Escobdeco was

* 20 be limited to its own facts was repeated.

406 U.S. 682, 689: see also Michigan tv.

Tucker (1974), 417 U.S. 433, 94 S.Cr 2357,

‘41 LEd2d 182. -

~ We therefore consider the case as

~vielation. < : "4

Se Rein Mine os US. one, 1S.

Ce ZH, 45 L.Ed26 416 (1975), the court

qvasidered a somewhat similar quesvon

ee extent to. which Mirende warnings

|

?

2

i

to cowply with Mireads wouls be subsian-

“tnlly weakened i{ subsequent warnings

were made a cure-all, the court concluded

$35 NORTH LCASTCEN REPORTTR. 2d SERIES

that Mirenda warnings alore and per s¢

will not always break the causal connection

between the illegality and the confession

As applied to the case before us, the op:--

ion in Brown indicates that repeated Afiron-

de warnings do not of themselves dilute

the effect of an initial violation.

‘ ]Jn the case before us the interrogation

that produced the confession did not imme-

diately follow the defendant's request for

an attorney. It thus differs from People

v. Henenberg (1973), SS 12d $, M2 N.E

24 2. (See also People v. Turner (1973),

$6 11L2d 201, 36 N.E2!Z.) The cocfes-

sion in this case was not given until May

26. The defendant had been arrested on

the morning of May 24, and it was then

that he had said that he wou!d prefer to

speak to an attorney before talking to Cap-

tain Johnson. At that tme interrogauon

ceased. On the afternoon of the 24th he

was again given Mironds warnings and

* was questioned by Detecuve Stanis about

other offenses. Either en that date or on

May 25 he participated in a lineup and his

palm print was taken. On May 25 he was

mot questioned at all concerning the of-

fense involved in this case, bu: he was in-

terrogated during that morning with re-

spect to an unrelated offense to which he

confessed. In connection with Wat incer-

fogation he was given the full Afirence

warnings Dwing the afternoon of the

25th he was interrogated with respect to

. Again that questioning was preceded by

In the morning cf that day, after having

again been given full Mirands warnings.

vi

“~* COUNTY OF COOK +. INDUSTRIAL COMMISION - @ 46

Cite as 38 N_E3e 003

a lawyer when he said he wanted to tall: to vening events so that the defendant's con-

ene. The reason for this failure is not al- fession was voluntary and was therefore

together clear, although the testimony of properly received in evidence.

{ficers suggests that ch under

ene to take any pad fur- The judgment of the Appellate Coun,

aishing a0 atioracy unless the defendant Fifth District, is therefore affirmed.

mamed a specific attorney to whom he Judgment affirmed. —

wished to talk The defendant testified at’, ' nar

* the trial that be had only a vague recollec- *

ties thai be had been held at the police

station for scare days about the time that

his confessice was obvined; he kad 20

"* . The situation is not am easy one to ap-

praise The de fecdast’s LO. wes low. On

the other hand, there was tesmmony by the

interrogating officer thar be understood

' the Mirends “right” when they were read

to him This war not the first time that

the defendant had been charged with a

crime, nor was May 24 the first time be

had been piven Mirende waruings The

imps ct wpen the dc ferdant of the lineup in

which be par’ pated, and of the taking c!

his palm print, is not apparent from the

‘record before us, but there is no reason to -

believe that it would be favorable to the

’ defendant In this case there is no claim

@f police brotality. It is not suggested tha:

the defendaut’s siccp was interiered with

@uring the two night that be was hed io ’

custody prior = cae of Ge

present crime. a, -

c-caseih wees & Oh en

each concerned a separate offense, and the

record shows that the officers proceeded in

this way in order to obtain in each in

stance 2 confawion that related to a single

effcase. Although the total period of in-

terrogetion was unduly projenged, a nam

ber of very serious offenses were iavoived

_ and the defendant wes interroguced sepe-

rately as to cach ofiense

(3) While the case is a close one, we

are of the opinion that the effect of the

procedural! violation of the Mivends stand-

ards was sufficiently Gissrysted by lapee of

time, repeated admonitions aad a Ner inter-

Ne. 77-1634.

United States Court of Appeals,

Seventh Circuit.

Argued April 26, 1977

Decided Feb. 1, 1978

(Cite on 670 7.28 104 (1078)

the petition stated a legally sufficient claim

to relief under Mirar 's v. Arizona, and (2)

because the Illinois trial court failed to

make essential findings of historical fact as

to whether petitioner asked to see an attor-

ney during his initial conversation with po-

lice and where the record itself permitted

po reconstruction of the court's view of the

underlying facts, the trial court's genera)

finding that petitioner's confession was vol-

untary was required to be set aside and the

matter remanded for a new evidentiary

hearing

Reversed and remanded

1. Habeas Corpus 4

Illinois state prisoner's petition ap

peared to state a legally sufficient claim to

habeas corpus relief under Miranda v. Ari-

gona where petition alleged that petitioner

had asked to see an attorney on first occa-

sion he was brought to police station and

questioned but that police nevertheless pro-

ceeded with custodial interrogation 2

U.S.C.A. § 22544)

2 Criminal Law © 412.2(5)

Where a purported waiver of the right

to counse! was solicited in the course of

custodia) interrogation initiated by police

following an accused's unhonored request

for counsel, such solicited waiver is properly

viewed with skepticism. U.8.C.A.Const

3. Habeas Corpes & 85.1(2)

Findings of fac: made by ste'e cours

are entitled to a presumption of correctness

of historical fact made by «

jedge who heard the evidence. 38 US.

§ 22644), US.CAConst. Amend. 5

4 Habess Corpas e090

Recitals of fact contained in 0 mate

appellate court opinion which are unsup

by any specific findings of trial court

who observed witnesses are usually

net dispositive of contested factual ieeues

set 9 eis cate ihahe

tag, this io certainly tree where

of @ controlling factual seve depends large:

ly on an interpretation of the self-contradic-

tory testimony of « single witness and on

an assessment of that witness’ credibility

2 USCA. § 254d)

& Habeas Corpus e998, 11113)

"Where Illinois trial court failed to

make essentia) findings of historical fact as

to whether habeas corpus petitioner asked

to see an attorney in the course of his initia!

conversation with police and where record

iteelf permitted no reconstruction of the

trial court's view of the underlying facts,

trial court's general finding that petition-

en's confession was voluntary was required

to be set aside for purposes of federa! habe-

as corpus and matter was re-

manded for relitigation of that issue and

any relevant subsidiary factual issues

6 Criminal Law 412.214)

If habeas corpus petitioner did ask to

eee an attorney at any time while he was in

custody, Miranda would require suppression

of any statement thereafter obtained from

petitioner, at least absent a finding that he

later voluntarily retracted his request for

counse! and effected a knowing and intell)-

gent waiver of his Miranda righs. USC

A.Const. Amend. 5

1. Criminal Law @=517.2(3)

BAUER, Circuit Judge

Evtues White appeals here from the die

trict court's denial of his petition for a writ

of habeas corpus, which asserts that his

Gonstitutiona) mghts were violated by the

admission at trial of his confession to a

murder alleged!y coerced by custodial! inter-

Fogation that proceeded after he had ashed

to consult with an attorney. White claims

that the custodial interrogation leading to

his confession violated the procedural re-

quirements announced in Miranda v Ariso

na, 384 US 436, 86 S.Ct 1602, 16 LEd 2d

@94 (1966), and that suppression of his con-

feasion was mandated for that reason alone

In addition, his petition puts in issue the

voluntariness of his confession, & matter

previous!) decided against him in the state

courts. White contends that the district

court erred in dismissing his petition with-

out an evidentiary hearing and asks that we

either grant him « writ of habeas corpus or

remand the case for litigation of the issues

raised by his petition

For the reasons noted below, we reverse

the district court's summary denia! of

White's petition and remand the case for

further proceedings

Following & jury trial in the Circuit Court

of St. Clair County, Ilinow, White was con-

at trial s the central question presented by

this appea! and was the subject of extensive

bearings in the state courts, « review of

which follows

Prior to trial, White moved to suppress

his confession om the ground tha! it was

“legally and improperty obtained and pro

eared.” At the hearing on White's motion,

the interrogating officers testified thet

they had orally advised White of his Miran

de rights immediately prior to questioning

him. that he appeared to underviand these |

tights, ond thet be voluntarily waived

(hom. The officers also testified thet os

farce or duress wes weed in the cours of

570 FEDERAL REPORTER 34 SERIES

ee

j felt

alti

Hitt :

Mite

i

:

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F

;

they had given at the suppression

into evidence over the defendant's objection

that there was insufficient evide © x of rec-

ord showing that he had been adequately

advised of his rights and had voluntarily

waived them. White himself testified at

a

Une voluntanness of White's confession, and

because the record was silent as to whether

White was adveed of his Mirands

Hi

F

f

F

i

sf

WHITE v. FINKBEINER 197

Chee a0 870 Fae 1S (0TH

014, 923, 295 N.E.2d 900, 906 (6th Dut

1973)

At the hearing held pursuant to the ap-

pellate court's remand, the sequence of

events leading to White's confession became

clearer, White was arrested on May 2%,

1069, early in the morning After he ar-

rived at the stationhouse, he was taken to

eee the Waich Commander, Captain Wil-

liam Johnson Following ® brief conversa-

tion with Johnson—the contents of which

are in dispute here—White was placed in a

call, and his case was turned over to Detec-

tive Stanis for investigation

Btanis testified at the hearing that he

placed White in # lineup on the morning of

the 24th and took White's palm prints that

afternoon According to Stanis, White was

not interrogated about any crimes that day

On the morning of the 2th, Stanis ques

tioned White about # murder unrelated

both to the crime for which he was arrested

and to the case at bar Prior to the interro-

gation, Stanis orally advised White of his

Miranda rights from a card supplied by the

Siate’s Attorney's office White waived his

rights and confessed wo the murder, His

confession was reduced to writing and

signed by petitioner It also contained o

description and signed waiver of his Miran-

da rights Later that afternoon, Stanis

questioned White about another murder af-

4

z

ik

i

:

i

:

ff

:

|

F&rcF

for which he was arrested According

Johneon's initial testimony, White replied

that he did not want to talk and “would

rather see a lawyer” At four times dunng

his testimony, Johnson stated that Whiu

eaid, “{I'd) rather see & lawyer" Indeed

was one of the reasons why Johnson

believed that White fully understood his

rights

After Johnson had been excused as

witness, counsel approached the bench, and

an unrecorded colloquy took place After

the colloquy, defense counsel informed the

court that the defendant did not wisi to

testify. The State's Attorney then recalled

Johnson to the stand, and he gave the fol-

lowing testimony

“Q. If someone asked for a lawyer is

it the practice of your department to see

that they are able to get & lawyer”

A. if be had asked for ao lawyer ]

would have given him the phone there on

my desk and let him use the phone

Q When you said that he wanted

speak \o » lawyer, do you mean that he

asked, that he wanted to retain & lawyer”

A. Well, 1 am not sure this is what

the words that he said but he didn't want

to talk, 80 therefore | had him put back in

the cell block

Q. Well, could it have been that you

just assumed when you were seeing him

that he wanted « lawyer, since he didn't

want to talk”

A. Ye

Q If he had asked for « lawyer would

Detective Stanis have been notified of

.

ra)

= Pine

3

A. Well

Q. This ie important, | want to get

this straight, did he specifically ask you

and say, | want eo lawyer, I want to talk

to a lawyer’

A. No, he never asked me about he,

wanted to talk to « lawyer, he didn't * quent

want to talk to me, so | would assume

that he would rather have a lawyer there

present, but he didn't ask for one; if he

Q Now, | know that a lot of what

police officers testify to is based upon

years of experience in @ routine way of

doing things, you say he has asked for »

lawyer, 1 would have let him use my

phone, can you say specifically in this

case that Eutues White didn't ask for a

lawyer’

A No, he didn't ask for a lawyer.”

The State's Attorney then recalled Detec-

tive Stanis, who testified that at no time

during his interrogations of White did the

petivioner ask to see an attorney or request

that questioning be terminated Stanis also

teotified that, under standard operating

procedure, if White had asked Johnson to

provide an attorney, he, Stanis, would have

been so advised and would not have ques-

tioned White further

Following Stanis's testimony, the defense

rested, and the trial court found—without

entertaining any argument from counse|—

that “the defendant was properly admon-

shed" The court then asked if counsel

believed that was sufficient, and the State's

Attorney replied that “the Appellaw

Court—they asked if the confession

found to be properly admissible in

570 FEDERAL REPORTER, 24 SERIES

White then appealed the trial court's ru!-

ing on the ground that the evidence

presented at the hearing conclusively esta!

lished that hie initial efforts to exercise his

rights to remain silent and to the assistance

of counse) were frustrated by the subse-

custodial interrogations White ar.

gved that Johnson's testimony was so con.

tradictory and suspicious that it had to be

because White failed to proffer any ev-

dence to contradict Johnson's final testimo-

ny that White never asked for an attornes

the trial court could accept that testimony

as true, and that “finding” could not be

disturbed on appeal as it was not contrary

to the manifest weight of the evidenc:

People v White, 22 I) App.3d 180, 184, 317

N.E.2d 323, 326 (Sth Dist 1974) Accord.

ingly, viewing the case as presenting only a

question of whether a defendant who mani-

fested an initial unwillingness to talk could

be interrogated at a later time after having

been readvised of his rights and having

waived them, the court determined that the

officers’ subsequent interrogations did not

render White's cunfession involuntary Id

at 184-85, 317 N.E.2d at 826-27 One jus-

tice dissented because he believed the rec:

ord established that White had asked for an

attorney during his first custodial interro-

gation by Captain Johnson. That being the

ease, the justice viewed the subsequent

statements obtained in the absence of coun-

sel to be inadmissible under Miranda Id

at 187, 317 N.E.2d ot S2e

wes unequivecal, both on direct examina.

WHITE v. FINKBEINER 199

Cite an 570 F Be 104 (1078)

to agree with the view of the majority of

the appellate court that ‘Bince the de-

fendant failed to proffer any evidence to

contradict Captain Johneon, the trial

court could, in ite discretion, accept John-

son's testimony astrue * * °." Inour

opinion Johnson's testimony unmistak-

ably established that the defendant re-

quested counsel” People v. While, 61

11.24 288, 293-94, 885 N.E2d 457, 46)

(1975)

The court went on to view the case as

presenting ® question of whether the cir-

cumstances surrounding the procurement of

White's confession neutralized the effect of

the Miranda violation established by John-

son's self-contradictory testimony. The

court held that,

“(while the case is a close one, we are of

the opinion that the effect of the proce-

dura! violation of the Miranda standards

was sufficiently dissipated by lapse of

time, repeated admonitions and other in-

tervening events so that the defendant's

confession was voluntary and was there-

fore properly received in evidence” Jd.

at 297, 835 N.E.2d at 463

Following the Illinois Supreme Court's

decision, White filed a petition for a writ of

certiorari with the United States Supreme

Court, which was denied. White v. Illinois,

424 US. 970, 06 S.Ct. 1460, 47 L.Ed.2d 738

(1976) White then sought relief in the

district court by way of s petition for a writ

of habeas corpus. The district court ruled

that,

“{i}n light of the Illinois Supreme Court's

determination after a prior special hear-

ing, and the presumptive correctness of

the fects found by that court after hear-

ing, 28 U.S.C. § 2254(d), it is not neces

sary to issue an order to show cause to

determine that relief ie not available. It

appears from thie application that the

Genie a ee cry i atee

hite v. Finkbeiner, No. P CIV 76-104 at

& (B.D.10.1976) (memorandum decision

and order).

il.

On appeal here, White argues that, a

by the Illinois Supreme Court, he is entitled

to relief as a matter of law According w

White, Miranda v. Arizona, 884 U.S. 436, 86

B.Ct. 1002, 16 L.Ed.2d 604 (1066), as applied

by thie Court in United States ex rel. Wii-

liams v. Twomey, 467 F.2d 1248 (7th Cir

1972), mandates the suppression of any un-

counsdled statements taken from a suspect

following custodial interrogation that pro-

cseded after the suspect had requested the

assistance of counse! As the Illinois Su-

preme Court found that the record “unmis-

takably establishes that [White] requested

counsel” during his initial questioning by

Johnson, White concludes that he is entitled

to relief as a matter of lew.

The State responds: (1) that the rationale

of Stone v. Powell, 428 U.S. 465, 96 S.C\

9087, 49 L.Ed.2d 1067 (1976), should be ex-

tended to bar petitioner from obtaining fed-

eral habeas corpus relief on the basis of

alleged Miranda violations already fully and

fairly litigated in state court proceedings,

(2) that an independent examination of the

state court record will reveal that White

never asked for an attorney at any time

while he was held in custody; (8) that

under Michigan v. Mosley, 423 U.S. 96, 96

S.Ct. 821, 46 L.Ed.2d 313 (1975), White's

initial election to remain silent in response

to interrogation about the crime for which

he was arrested did not preclude further

of him about other crimes after

readmonition of his rights; and (4) that,

670 FEDERAL REPORTER, 3¢ SERIES

argy-

circum-

, 49 L.Ed.2d 1067 (1976), that fed- stances of this case’ We ate tt

Moreover.

'd request that we either overrule

inguish our Wilhame decision insofar

buggests the

ance of counsel can never be waived by a

petitioners whose voluntary confessions

an suspect whose initial request for an attor-

were tainted by violation of the procedura!

rules announced in Miranda’

the State

det

States ex re! Williams v. Twomey, 467 F.2d or’

1248, 1252 (7th Cir. 1972)' This is not to as it

say, however, that White is inevitably enti-

tled to relief even if he did ask for

can be ey had not been honored is not an

428 U.S. 465,96 ment lightly to be dismissed in the

when brought to the stationhouse, then the eral habeas relief should be unavailable tw

petition would appear to state « legally

sufficient claim to relief under Miranda v

Arizona, 884 US 486, 86 SCi 1002, 16

L.Ed.2d 604 (1966), as applied in United

attorney, for a forceful argument

made from Stone v. Powell,

S.Ct. 9087

: 2 SHI ‘392242 His ci j pals eH TL

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WHITE v. FINKBEINER 201

Cite an 870 7 Be 106 (1078)

ments for another day, however, for the

State disputes that White ever asked John.

son to provide counsel, and until that ques-

tion of fact is reliably resolved any further

discussion of the other msues raised by the

parties sould be premature

[3,4] We recognize, of course, that the

Illinois Supreme Court concluded that

White asked for an attorney, and that state

court findings of fact are entitled to a

presumption of correctness in this habeas

proceeding 28 U.S.C. § 2254(d). That pre-

sumption, however, generally attaches only

to determinations of historical fact “made

by the judge who heard the evidence, for

only he is in @ position to evaluate the

credibility of the witnesses.” Hill v. Nel-

gon, 466 F.2d 1346, 1848 (9h Cir. 1972)

Recitals of fact contained in a state appel-

late court opinion unsupported by specific

findings made by the trial court judge who

was able to lest the credibility of witnesses

by observing their demeanor in the course

of direct and cross-examination are usually

not dispositive of contested factual issues

raised in a federal habeas proceeding See

e. g., Elliott v. Morford, 557 F.2d 1228,

1231-32 (6th Cir 1977) This is certainly

true at least where, as here, resolution of a

controlling factual issue depends largely

upon one's interpretation of the self-contra-

dictory testimony of a single witness and an

assessment of his credibility

(8.6) Unfortunately, the state trial

court failed to make any finding as to

whether White asked to see an attorney in

are unable to ascertain from the record the

factual and lega! bases upon which the

state trial court resolved the voluntariness

issue As the record stands, we can only

speculate as to whether the court found

White's* confession voluntary because he

never asked for counse! and waived his

rights thereto, or because the court, as did

the Illinois Supreme Court, believed that

the confession's voluntariness was not im-

paired by the failure to honor a request for

counsel). Thus, in the circumstances of this

ease, where the state trial court failed to

make essentia) findings of historical fact

and the record itself permits no reconstruc-

tion of the court's view of the underlying

facts, the trial court's general finding of the

voluntariness of White's confession must be

set aside for purposes of this federa) habeas

proceeding, and the case must be remanded

for relitigation of that issue and any rele-

gation at the stationhouse’ If the court

finds that White did not ask for an attor-

202 570 FEDERAL REPORTER, 24 SERIES

State, of course, would bear » “heavy” bur-

den of showing the voluntary character of

any subsequent waiver,’ and efforts to so

licit such a waiver from petitioner should be

viewed with suspicion® Moreover, should

the court find that White asked for counse!

and yet that his confession was “voluntary”

in traditional terms,” factual findings rts

garding the interrogating officers’ good

faith and their awareness of any violations

of the procedural guarantees announced in

Miranda* would naturally be relevant to

any disposition of the State's argument that

the rationale of Stone v. Powell, 428 US

465, 96 S.Ct. 9087, 49 L.Ed.2d 1067 (1976),

should be extended to bar federal habeas

relie’ in the circumstances of this case

In any event, the court should give scru-

pulous care to setting out its findings of

fact and conclusions of law on the record

Moreover, to insure disposition of all the

relevant issues of subsidiary fact bearing on

the confession’s voluntariness, it would be

advisable for the court to allow counsel to

submit « list of contested factual issues

prior to any judicial ruling

For the reasons noted above, we reverse

the district court's dismissal of White's peti-

tion and remand the case for further pro

ceedings consistent with this opinion

REVERSED AND REMANDED

i

APPENDIX E

Ne. 79-1563.

Seventh Circuit

Denied Feb. 15, 1980

Minois prisoner petitioned for writ of

habeas corpus, asserting that his constitu-

tional rights were violated by admission at

had asked to consult with attorney The

United States District Court for Southern

District of Illinois, Robert D. Morgan, J.

Chief Judge, denied relief, and petitioner

appealed. The Court of Appeals, 570 F.2d

Hi

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3

WHITE v. FINKBEINER 187

Cite op 61! 7.28 168 (107)

1. Habeas Corpus @ 113(12)

In habeas corpus proceeding in which

prisoner asserted that his constitutional

rights were violated by admission at tra! of

confession alleged!y coerced by custodia! in-

terrogation that proceeded after he had

asked to consult with attorney, whether

statements made were actually request for

counse! was legal! determination, and thus

district court's finding on this matter was

not due same deference as findings of fact

2 USCA. § 254; US.C.AConst. Amend

5.

2 Criminal Law @=412.2(5)

Miranda teaches that request for coun-

se! need not be explicit, but, rather, it must

be determined if there was indication “in

any manner” that accused desired to con-

sult with attorney U.S.C.A.Const. Amend

5

3. Criminal Law @=412.2(5)

Prosecution contended that focus of in-

quiry should be on totality of circumstances

in which defendant uttered to police officer

in-custody statement to effect that “I'd

rather see an attorney,” i. e., that such

officer was not investigating case and spoke

to defendant for only short time, and dis-

trict court agreed and concluded that under

circumstances, officer's conclusion that at-

torney was not requested was reasonable,

but Court of Appeals rejected application of

this approach to facts before it, as such

6 Criminal Law o=5)7.2(2)

Besides consideration of background.

experience, and conduct of accused, courts.

in determining if request for counsel has

been waived, attempt to focus on other

factors, such as whether suspect initiated

contact which led to statement being made.

but there is no reason to conclude that as

prerequisite to a waiver, suspect must have

always initiated contact with police. as

there may be instances where for some

valid reason police must contact accused

and s confession follows this contact US

C.A.Const. Amend. 5.

7. Criminal Law @=412.2(5)

Fact that police initiated contact with

defendant did not prohibit showing that

defendant had waived origina! request for

counsel, where investigating officers’ deci-

sion to subject defendant to interrogation

was made without any knowledge of de-

fendant's prior request for counsel. given

fact that such request was offhand request

to noninvestigating officer that was under-

standably not passed on to investigating

officers. U.S.C.A.Const. Amend 5

& Criminal Law © 412.2(5)

A fector which can indicate that a re-

quest for counse! has been waived is time

delay between origina! request and interro-

gation, since a time lapse gives suspect time

to reconsider his prior decision and evaluate

situation without presence or prodding of

officials. U.S.C.A.Const. Amend 5

188 61) FEDERAL REPORTER, SERIES

Kenneth L Jones. Asst State Appelinic On appeal. the lhnow Appellate Court

Defender. Ralph Ruebner. Deputy Appe\- ordered that s new suppression hearing be

lant Defender, Chicago, 1l)., for petivoner- held’ This hearing was held and the con-

appellant feamon was agnin found to be admusibie '

Kathleen M Lien, Asst Atty Gen, Chi © or gees Hhnots Appellate Court af.

Nee rs

cago, Ill, for respondent-appe — ; this ° ah

Before SWYGERT. SPRECHER. and the United States Supreme Court denied

WOOD, Circuit Judges eeruioran

SWYGERT. Circuit Judge

Petitioner-appellant Eutves White ap holding e hearing, the district court denied

peals from the judgment of the district the application for a writ, On appea). this

court which denied his claim for habeas court remanded for an evidentiary heannng

corpus relief under 28 U.S.C. § 2254. The to determine 1) whether the appellant re-

basis of White's petition is that a confession quested counsel when he was in custody. 2)

admitted at his murder trial) was obtained whether there was 8 waiver of the reques:

in violation of his rights under the Fifth fer counsel, 3) whether the officers acted

Amendment as interpreted in Mirands vim good faith in obtaining the confession. 4)

Arisona, 334 US 436, 8 S.Ct 1602. 16 whether the reasoning of Stone v. Powe!

L.Ed_2d 4 (1966) Specifically, White con- 428 U.S. 465, 96 S.Ct. 3037, 49 L Ed.2d 1067

tends that the interrogation which led to his precludes federal habeas corpus relief’

confession occurred after he had made a

Fequest was waived We hold that a re-

quest for counse! was made, but that this

request was waived

White wes convicted by a jury of mur- titioner's rights was found the district court

der,' with the prosecution relying primarily declined to decide whether Stone v. Powel!

pon his confession At a suppression hear preciudes habeas corpus relief for violations

ing held prior to trial, White challenged the of the Miranda rules. We affirm the judg

admissibility of this confession. The trial ment of the district court but do so on

court denied the motion Gifferent grounds We conclude that « re

i. The wna) judge semenced Whue to act less §=66& People » Whee. 6! 10.36 208. 335 N E36 457

than 199 years but not more than 200 years (9873)

Orignally the jury hed recommended Unei Une

G@uath semence be Uapoerd §=Mowever. the inal =@ Wher + Bhnos 44 US 870.8550 1669

pedigy Rost moO Lo mEpoer Uke semen © 47 L.Ba.26 738 (1876)

2 The appeliote court remanded fer a Gmerme- 9. Whur v Pintbemer, S70 F.de 104 (hn Cr

gation of whrthe: Abrands ngiis were gven

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quest for counse! was made but that White

waived this request’

n

White was arrested in East Si Louis,

Illinois on May 24, 1969 The arrest was for

an offense unrelated to the murder for

which he was eventually convicted It ap

pears thal the arrest occurred sometime in

White Apparently Johnson sought to

was in custody

certain, but White responded in substance

that “I'd rather see an attorney.” John-

son never notified the other officers of this

request nor made note of it. Apparently,

Johnson merely considered this an invoca-

tion of the right to remain silent "'

Between May 24 and May 26, White was

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ends palm print During the interrogation

of May 2 White signed waiver forms and

aleo signed typed confessions t© other

crimes.” Before each separate interrogs

tion the officers gave White hie Mirands

rights White indicated that he undersiuct

these rights On May 26, White was agai’.

4 ted, given his Mirands nghts, and

signed a waiver of nghw form and a con.

fession typed out by one of the interroga'.

ing officers. The officers were not aware

of White's prior remark requesting counse!

nor did White at any time state that he now

wanted counsel appointed nor that he had

previously requested counsel There was

testimony that when White was asked if he

wanted counsel, he responded in substance

“I don't need a lawyer.” After signing the

confession White and several officers re-

turned to the scene of the crime and reen-

acted the crime

il

{1} The initia) inquiry is whether White

made « request for counse! The district

court found that no “clear or unequivoca!

request” for counsel was made" But it

to Johnson Ai umes he sesd that he told

Johnson “l want to see an atiornes” while a:

another une he sasd that he told Johnson “! 4

rether 3

ty muddied While the @uinci coun @¢ find

that Whne @¢ not request an atiorne, 1 did

Qasically find as « fect thet Whine seid in sud

ance “I'¢ rather sve an atiorne)

t8. B wes the precuce of the East S: Lown

Pobce department to honor 8 requesi for cour

eat and nouty all mvestigating officers of ine

request:

2% From the record « appears that White wes

mever ined for Uneer othe: cnmes

0 The Getrict court ched no suthort) for ihe

prepeet.en thet 2 requrs: fer ceunee! musi be

“aloes and waequivecs!” tndeed. the language

contained im Advands » Arwons, 3045 436

OB S.Cr 1GR2. 16 L.E6.36 GOs (1006) 2 10 the

ererery

‘Yee mandard of review fer the Grierwens'

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does appear that White did state in some fore lawyer) But in this instance White's

form that “I'd rather see an attorney.” statement that “I'd rather ese an attorney”

The district court, however, did not believe was s request for counsel. To require s

that this statement was an actus! request pereon in custody to be even more specific

for an attorney but rather an invocation of would be to ignore the language in Mirands

the right to remain silent. "i quoted above:

In determining whether o request for +. Other courts have had to determine

counsel was made, the language of Miranda whether o f

v. Arisona, 884 U.S. 436, 66 S.C. 1602, 16 made In

L.Ed.2d 604 (1966) is instructive. ar «pa Vv. ee:

If [the accused) indicates in any manner attempted iwyer

and at any stage of the process that he spect then stated that he would like to

wishes to consult with an attorney before "Peek to & lawyer but also stated that he

speaking there can be no questioning ‘%* Willing to make « statement. The

984 U.S. at 444-45, 86 S.Ct. at 1612 (empha Ut Mated thet this amertion sould be

ie ded)" ’ interpreted as 0 willingness to give « state.

added). ment after the attorney was present or as a

[2] Thus, Mirands teaches that the re- waiver of the prior invocation. With such

quest for counsel need not be explicit. fundamental rights at stake, the court in-

Rather it must be determined if there was terpreted the statement in the

an indication “in any manner” that the favorable to the defendant and held that

accused desired to consult with an attorney. os hee oe Oe See also Mag.

cart. denied, 424 US. 009, 98 B.CL 210, 64

to the fects before us. This approach places 1.6494 147 (1977). The statement in the

too much emphasis on the subjective inter- present ease was much more of an affirma-

pretation of the police officer and ignores tive request than the mere request for s

the import of the words uttered by White. recommendation of an attorney. We thus

There may be certain instances where the hold that White made « request for counse!

efficer may have properly concluded that «

Gatement was not s request fer a lawyer Iv

United States v. Botero, 69 F.2d G80 (th {4} The prosecution argues thet even if

Cir. 1978), cert. denied, 441 US. 044, 99 there was 0 request for counsel, this request

S.Ct S142, OD L.Bd.9d 1065 (1979) (request was later waived. Ase preliminary matter

to call girlfriend not construed as request we must decide if Mirands and Michigan \

— Nya ot phoney I rene do ae ee eee ett ae one

matier Grterence as ¥ Reread wes magpixsdic

the Andings of fact > esl elute tha aed on Posner tet wasn

04 Im Premier v. Cupp, 386 U.S 73), © 5.0, before Alivend> was Gneided Mewever

' Coun meted Unet f Abrams were agplcabic

Gocwosed. i cher caonam whet weres core Ugh nchude that thn wes 0 veut for 8

WHITE v. FINKBEINER 191

Cine an 61) 7.20 108 (1070)

Mosley, 423 U.S. 06, 96 S.Ct. 821,46 L.Ed.2d tary, & per se approach may be going wo

$13 (1975) construct a per se rule requiring far toward protecting the rights at stake

that there can be no questioning of sus A per se rule which provided that « suspect

pect after counsel is requested." could never waive a prior request for coun-

In determining whether there should be a ag! would imprison s suspect in his privileg-

per se rule, the touchstone of the analysis is =m. Cf. Faretta v. California, 422 U5. 806,

the language in Miranda. “If the individu. 96 S.Ct. 2625, 45 L.Ed.2d 562 (1975) (cannot

al states that he wants an attorney, the force trial counsel on defendant who wishes

interrogation must cease until an attorney to proceed without counsel) This is not to

1628

Further support for the creation of s per request need be condoned. Instead, it

se prohibition is the language contained in merely

Michigan v. Mosley, 423 U.S. 96, 96 S.Ct. tain instances, for various reasons, & person

cerned the interrogation of a suspect Who ounge! knowingly and voluntarily de-

hed invoked his right to remain silent. The cg. thet be

Court held that the police could interrogate

@ suspect who had previously invoked his

right to remain silent. This resumption of The

questioning was proper only if the suspect's courts to lose touch with

right to remain silent was scrupulously hon- policies behind the Mi

ored. In stating this rule, however, the knowing and

Court did note that the procedure utilized rights” Adopt on of a per se rule would

after an initial request for counse! present- lead to e mechanical approach to the resolu-

ed a different matter. That case, the Court tion of the particular cases we face. Thus,

stated, was governed by the requirement we eschew the per se rule and instead

set down in Miranda —no further question- choose

ing until the attorney is present. which

While the basic idea behind the Court's Miranda and Mosiey are incorporated into

discussion in Miranda and Mosley is salu. the analysis. United States v. Rodrigver-

1% Whae relies on Unned States ex rel. Wil- gen the eccused stated that he would not mgr a

dams v. Twomey, 467 F.2d 1248 (7th Cir. 1972) weiver form until he could talk to bus lawyer

as creating such 8 per se rule. In Williamsthe Thereafter. the suspect continued to talk to the

euspect stated that he would like 6 lawyer F.B.1. agents and expressed a willingness to

before @ matemem. The state's attor- taih. This court apparently treated tne case as

ney the appetiant from havingslaw- = an, invocation of the night wo silence. However

POD yin eo ny 2 tance megane g there is language in the case inchcating Unat ihe

prosecution cannot continue righ to Counsel can be waived

rogation and not appoim counsel

While Williams has been imerpreted os eet- 16 A hypothetical mag Gamonstrete (he

ting forth o se rele, United States ex rei fally Ge gar co wip. Cansider Ge ante where

Senders ¥ mF 1128 (A.D. —_«g guagect requests counsel and then is put in 0

Oe re ra pk gh oa. ee a eee

teeue of waiver was not even presented in V1) gase bie x8 Ge Go tee sees te

ioe. Oe Cangrrgy nrenl enys that he ders act want « lawyer and would

cnet tik atid aaadeion Ge ¢ oe the to confess. Corveinly & corves no veld

quest fer counsel required that curtain chase. «PY hind Avant to refuse to sesnpe the

weiver, indeed, & contrevencs the idee in At.

ments be inedmiesitie Thus. to now held that vende —~thak 00 eiidens thadé be able 10

on 0 Oe amt ees ae resty eneveiee hin sight

~4 ne - ‘White Unses are not ue fects preeenied

Te 6 cask ts ties wits to this case they Gp Guswete the harw thet ow

Withame could have crested o -~ i 8 =—_—s eantion of 0 per op rule could Ge @ fawe

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194 611 FEDERAL REPORTER, 24 SERIES

of this case a waiver was executed. Before

each separate interrogation White was giv-

en Miranda warnings. United States v.

Evans, 575 F.2d 1286 (9th Cir.), cert. denied,

439 U.S. 854, 99 8.Ct, 165, 58 L.Ed.2d 160

(1978), But see Maglio v. Jagd, 680 F.2d

202 (6th Cir, 1978). The waiver of these

rights was a signed waiver. Also, the con-

fession was signed by White. United

States v. Lewis, 425 F.Supp. 1166 (D.Conn.

1977), We also note that while White did

not explicitly waive his previous request for

counsel, his comment “I don't need a law-

yer” is very close to an explicit waiver,

United States v, Rodrigues-Gastelum, 660

F.2d 482 (9th Cir.), cert. denied, 496 U.S.

919, 96 S.Ct. 2266, 56 L.Ed.2d 760 (1978).

In conclusion, we hold that in this case

White waived his request for counsel. The

officers who interrogated White were never

informed of the request for counsel. This is

understandable considering the peculiar na-

ture of the colloquy between White and

Johnson, The waiver was not the result of

coercion nor the result of interrogation

which immediately followed the initial re-

quest, Finally, White was given his Miran-

da warnings several times, signed « written

waiver of these rights, and made what was

almost an explicit waiver of his prior re-

quest for counsel.

The judgment of the district court is af-

firmed,

HARLINGTON WOOD, Jr., Circuit

Judge, concurring.

I coneur in the result, but also I agree

with Judge Morgan's interpretation of the

was scared and believed that since his previous

requests had been ignored it would be futile to

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defendant's brief conversation with John-

son. Considering the conversation and the

circumstances in’ which the conversation

took place, | do not construe it as a request

for counsel, but at most as only a way of

telling Johnson the defendant did not care

to talk to him. In discussing waiver, Judge

Swygert notes the! after the Johnson con-

versation the defendant never again ex-

pressed concern over lack of counsel. If

there was in fact a quick change of mind by

defendant as to the need for counsel, it

appears to have occurred without reason or

explanation. 1 am satisfied that there was

no change of mind. The defendant's obvi-

ous lack of concern about having counsel

expressed shortly after the Johnson conver-

sation is entitled to some weight in inter-

preting that conversation.