# Petition — White v. Finkbeiner > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40835006_2680%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1981 - **Citation:** 451 U.S. 1013 ## Text ¥ 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 - a | 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 : af i; z J i é i r 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 in | ti : z F i i | b it h | iF : i E : E ¢ ' i 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 a ~ 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 —- 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 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 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. 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 pablo ty — rh ». enese faced m thes corcust TREE Hib a ie if ii seat Ha ‘inl He aul He inact Hi Ta i Heats gapdeaiel? Fyre ls ih iE + : no = Dien a Hie i i; ij2i Tyle 8 yiges Te re : A ia | Hl ti ne i EE tH if he eas Ugaytes ait i iH [ SUH iH ene UU Utd i 4 st o23a55 e3 bes 8 iis HTT HARE] HEH EE HUE Ly “ii ag ; pare peapnaa sprit GEE ph ae ee fee et a kd | ih == 3 3°4 $ i ; 3 i A { ij Fs 2 i | ili 4S i 27 3 33 33 the ‘ a Hi a3 pE Bnet HTH sagt i ir | AE SRL ap i vide eduddag a0 alla init : ttl HEH eps a iit ea inhi: F235 eed eH a Hin Hk i il BEET Fy eG Gl nis aid 3332322%¢3 : + sit cbr Pre Pes P ati ili Hits HH Pipe inca peat ais A iit Hee Ue re ata ae ikea Lin HEH He itt ih fiallh 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 ¢ i? i t E 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. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40835006_2680%3A1. Public record. Not legal advice.