People v. Witherspoon

• Decision Date: 19 January 1967
• Docket Number: No. 39387,39387
• Citation: 224 N.E.2d 259,36 Ill.2d 471
• Parties: The PEOPLE of the State of Illinois et al., Appellees, v. William C. WITHERSPOON, Appellant.
• Court: Illinois Supreme Court

Page 259

224 N.E.2d 259

36 Ill.2d 471

The PEOPLE of the State of Illinois et al., Appellees, v. William C. WITHERSPOON, Appellant.

No. 39387.

Supreme Court of Illinois.

Jan. 19, 1967.

Rehearing Denied March 27, 1967.

Albert E. Jenner, Jr., Thomas P. Sullivan, Jerold S. Solovy, John C. Tucker and Joseph A. Spitalli, Chicago (Raymond, Mayer, Jenner & Block, Chicago, of counsel), for appellant.

William G. Clark, Atty. Gen., Springfield, and Daniel P. Ward, State's Atty., Chicago (Fred G. Leach, Asst. Atty. Gen., and Elmer C. Kissane and James B. Zagel, Asst. State's Attys., of counsel), for appellees.

SCHAEFER, Justice.

In April of 1960, a jury convicted the petitioner, William C. Witherspoon, of the murder of police officer Mitchell Stone, and fixed his penalty at death. The judgment was affirmed on writ of error. (People v. Witherspoon, (1963) 27 Ill.2d 483, 190 N.E.2d 281.) Thereafter the petitioner filed a petition for relief under the Post-Conviction Hearing Act. (Ill.Rev.Stat.1963, chap. 38, pars. 826--832.) The trial court granted the State's motion to dismiss the petition on the ground that some of the claims asserted had been adjudicated and that others had been waived because they were not raised on the writ of error to review the judgment of conviction. In a memorandum opinion (No. 3559) this court denied writ of error, deciding some of the claims asserted adversely to the petitioner and holding that others had either been adjudicated or waived.

The petitioner has also sought relief by way of Federal Habeas corpus. In United States ex rel. Witherspoon v. Ogilvie, (7th cir. 1964) 337 F.2d 427, the court of appeals reversed a determination by a district judge that the petitioner was entitled to be resentenced after being given an opportunity to present evidence in mitigation. The court of appeals also considered other claims advanced by the petitioner, and ordered the Habeas corpus petition dismissed. Thereafter another Habeas corpus proceeding was instituted by the petitioner in the United States District Court. The district judge stayed proceedings in that court until remedies in the State courts had been exhausted.

The attorneys appointed by the district court to represent the petitioner in the Habeas corpus proceeding then filed in the circuit court of Cook County a petition which requested that it be considered under whatever form of remedy is 'provided for by Illinois law', suggesting a petition under the Post-Conviction Hearing Act, (Ill.Rev.Stat.1965, chap. 38, pars. 122--1 to 122--7); Habeas corpus; section 72 of the Civil Practice Act, (Ill.Rev.Stat.1965, chap. 110, par. 72); a bill of review; a bill in the nature of a bill of review; Coram nobis; coram vobis; audita querela, or any other appropriate remedy. After extended argument the trial judge dismissed the petition on his own motion on the ground that it failed to set forth facts sufficient to entitle the petitioner to relief. This appeal follows.

In his two prior appeals to this court and his appeal to the Court of Appeals for the Seventh Circuit numerous alleged trial errors have been considered. We need not now consider whether there may be situations in which a showing of innocence may be made by a defendant who has already resorted to direct and collateral review, as has the defendant in this case. (See Anderson v. Gladden, 234 Or. 614, 383 P.2d 986, 991; In re Sterling, 63 Cal.2d 486, 47 Cal.Rptr. 205, 407 P.2d 5, 7) Most of the petitioner's contentions have been raised previously and decided adversely, and the remaining contentions do not show any error that would affect the accuracy of the determination of the petitioner's guilt, or the fundamental fairness of his trial.

In his present petition the petitioner alleges, for the first time, that he was not advised of his right to remain silent or of his right to confer with counsel, and that his request to confer with counsel before making a statement was denied. In Johnson v. State of New Jersey, 384 U.S. 719, 86 S.Ct. 1772, 16 L.Ed.2d 882, the Supreme Court held that the principles of Escobedo v. State of Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977, and the procedures required by Miranda v. State of Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, applied only prospectively. In People v. McGuire, 35 Ill.2d 219, 220 N.E.2d 447, People v. Wallace, 35 Ill.2d 251, 220 N.E.2d 198, and other cases, we have refused to apply those principles retroactively. Since this defendant was tried in 1960, Escobedo and Miranda do not apply.

The petitioner contends that the confession which was admitted in evidence against him was not voluntary. No such contention was advanced upon the direct review of the petitioner's conviction, which is reported in 27 Ill.2d 483, 190 N.E.2d 281. Such a claim was advanced in his first post-conviction petition, and in affirming the judgment dismissing that petition this court held that the contention had been waived. The petitioner now asserts that he did not knowingly waive this contention and did not authorize the attorney who represented him to do so, and he argues, therefore, that under the doctrine of Fay v. Noia, 372 U.S. 391, 83 S.Ct. 822, 9 L.Ed.2d 837, there was no effective waiver of thsi contention. The petitioner's present petition alleges with respect to the direct view of his conviction: 'On one occasion, petitioner's court appointed counsel wrote petitioner a letter advising petitioner of the grounds which counsel intended to raise on the appeal, but counsel did not offer or permit petitioner to determine what should be argued and what should not be argued on the appeal.'

This allegation is hardly consistent with the petitioner's assertion that there was no knowing waiver upon direct review. In any event, the contention that his confession was coerced was advanced in his petition for Habeas corpus in the Federal court. Upon appeal in that case, the Court of Appeals pointed out that a full hearing had been held upon the petitioner's motion to suppress prior to the trial, and that the trial court had found the confession to have been voluntary. The Court of Appeals then held that the District Court was not required to conduct an evidentiary hearing, and stated that 'the record fairly supports the state factual determination.' 337 F.2d at 430; cert. den. 379 U.S. 950, 85 S.Ct. 452, 13 L.Ed.2d 547.

Petitioner contends, for the first time, that the disqualification for cause of jurors having scruples against capital punishment violated his right to a trial by a jury which was fairly representative of a cross section of the community, and subjected him a trial by a jury which favored the prosecution in deciding the issue of guilt or innocence. Prospective jurors at petitioner's trial were asked: 'Do you have any conscientious scruples or any religious scruples against the infliction of the death penalty in a proper case?' And other prospective jurors were asked: 'Now, if you're selected as one of the twelve jurors and it should be your opinion, along with the other eleven jurors, after having heard all the evidence and the rules of law given by His Honor and you're back in the jury room, it should be your opinion, along with the other eleven, that the defendant is guilty, and the next part of your deliberation is to fix a penalty, and when you're at the penalty part of the deliberations it should be...