U.S. ex rel. Riley v. Franzen

• Decision Date: 10 July 1981
• Docket Number: No. 80-2588,80-2588
• Citation: 653 F.2d 1153
• Parties: UNITED STATES of America ex rel. Thomas RILEY, Petitioner-Appellant, v. Gayle FRANZEN, Director, Illinois Department of Corrections, and Lou V. Brewer, Warden, Stateville Correctional Center, Respondents-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1153

653 F.2d 1153

UNITED STATES of America ex rel. Thomas RILEY, Petitioner-Appellant, v. Gayle FRANZEN, Director, Illinois Department of Corrections and Lou V. Brewer, Warden, Stateville Correctional Center, Respondents-Appellees.

No. 80-2588.

United States Court of Appeals Seventh Circuit.

Argued June 15, 1981.

Decided July 10, 1981.

Ralph Ruebner, Deputy State Appellate Defender, Chicago, Ill., for plaintiff-appellant.

Mark L. Rotert, Asst. Atty. Gen., Chicago, Ill., for respondents-appellees.

Before SWYGERT, Senior Circuit Judge, ^* PELL, and BAUER, Circuit judges.

PER CURIAM.

Petitioner-appellant Thomas Riley appeals from a judgment, entered after an evidentiary hearing, denying his petition for a writ of habeas corpus. Riley argues that for two reasons the district court erroneously concluded that his confession, given during a custodial interrogation, properly was admitted into evidence at his state court trial. First, Riley asserts that by requesting to speak with his father during the interrogation he invoked his rights to silence and to the assistance of counsel, as delineated in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), and that by failing to honor that request the police violated those rights. Riley also contends that his confession was involuntary. For the reasons given below, we affirm.

I.

A.

After a jury trial in the Circuit Court of Cook County, Illinois, Riley was convicted of two counts of murder and one count of involuntary manslaughter. He was sentenced to two concurrent terms of imprisonment of 75 to 225 years for the murder counts and to a term of imprisonment of 3 to 10 years for the involuntary manslaughter count, concurrent with the murder sentence. Prior to trial, Riley unsuccessfully moved to suppress his confession, presenting, inter alia, the two arguments pressed in these habeas proceedings.

Riley's conviction was affirmed by the Illinois Appellate Court. People v. Riley, 49 Ill.App.3d 304, 7 Ill.Dec. 145, 364 N.E.2d 306 (1st Dist. 1977). That court also rejected Riley's challenges to the admissibility of his confession. The Illinois Supreme Court denied leave to appeal and, with Justices Brennan and Marshall dissenting, the Supreme Court denied certiorari. Riley v. Illinois, 435 U.S. 1000, 98 S.Ct. 1657, 56 L.Ed.2d 91 (1978).

Having exhausted his available state court remedies, ¹ Riley filed a petition for a writ of habeas corpus in the district court urging as grounds for relief the two arguments presented here. In an unpublished decision, the district court denied the petition without a hearing. United States ex rel. Riley v. Franzen, 79-C-1681 (N.D.Ill. August 16, 1979) (McMillen, J.). However, in a previous appeal, we remanded with instructions to conduct an evidentiary hearing. ² After the resultant evidentiary hearing, Judge McMillen made extensive findings of fact and again denied habeas relief. United States ex rel. Riley v. Franzen, 79-C-1681 (N.D.Ill. October 7, 1980) (Unpublished Memorandum). This appeal followed.

B.

For our purposes the facts regarding the homicides themselves are set forth adequately in the opinion of the Illinois Appellate Court. People v. Riley, 49 Ill.App.3d at 307, 7 Ill.Dec. 145, 364 N.E.2d 306. Consequently those facts will not be restated here. However, the facts pertinent to our disposition of Riley's confession claims must be set forth in some detail. In this regard we note that Riley does not argue, nor does it appear, that the district court's findings are clearly erroneous. However, we have found it necessary to amplify those findings by utilizing the parties' stipulations which were submitted to the district court and by examining the evidentiary hearing transcript and state court record ourselves.

At approximately 5:15 p. m. on February 27, 1974, shortly after the shooting deaths of three young men at the Burr Oak Cemetery in Alsip, Illinois were reported to the police, Thomas Riley, then eight days short of his seventeenth birthday, and his brother Ernest, then eighteen years old, were arrested in connection with the homicides as they hitched a ride in the vicinity of the cemetery. ³ The brothers initially were stopped by officers Pennix and Moore of the Robbins Police Department. ⁴ Officer Pennix contacted the Alsip Police Department, which sent a patrol car driven by Alsip Police Officer Scaglione. Alsip Police Sgt. Rice also was present at this time.

Officer Scaglione drove the two brothers to the Burr Oak Cemetery. ⁵ According to Riley, the drive took approximately five or ten minutes, during which Officer Scaglione neither advised the brothers of their "Miranda" rights nor questioned them. ⁶ There were many police and police vehicles at the cemetery upon the brothers' arrival there. Officer Scaglione parked the squad car approximately seventy-five feet inside of the cemetery gate. There, the brothers sat inside of the squad car for approximately twenty minutes until they were taken to the Alsip Police Station. United States ex rel. Riley v. Franzen, 79-C-1681, Unpublished Decision at 4, Finding No. 4 (N.D.Ill. October 7, 1980) (hereinafter cited as "Decision"); E.H. at 19, 89; see also Stipulations, P 10. ⁷

Essentially two things pertinent to our inquiry occurred during the brothers' stay at the cemetery. First, the body of one of the homicide victims covered by a blanket was lying in Riley's view. He "knew what was there but ... no coercive reference was made to it by any police officer." Decision at 3-4, Finding No. 4. Also, "two young boys who had originally told the police where the suspects had fled were brought to the police car but were not able to identify the petitioner or his brother. The petitioner's father and stepmother had been brought to the cemetery but were not allowed any contact with the petitioner." Id. at 3, Finding No. 3; see also Stipulations, P 12. There is no indication that Riley was interrogated at the cemetery or made any challenged statements while there.

Riley and his brother were driven from the cemetery separately. As Riley left the cemetery he was given Miranda warnings by a plainclothes police officer. Although Riley testified that he was "scared" and "nervous," E.H. at 23, he also acknowledged that he understood the warnings when they were read to him.

Riley arrived at the Alsip Police Station at approximately 6:00 p. m.

(His) clothing was taken for the purpose of a laboratory examination, but he was shortly thereafter allowed to put on his underclothes and socks. He was also given a blanket which he wrapped around his waist. ⁸ He was put in a cell next to his brother Ernest and, when they began conversing between themselves, a police officer handcuffed one hand of each boy to his respective bunk. This did not cause any particular discomfort, since the boys were able to sit down on their bunks, but it did prevent them from communicating further. This restraint was removed at or shortly after 8:00 p. m.

Decision at 4, Finding No. 5 (footnote added).

During this initial two hour period in the police station Riley overheard the father of one of the victims "accost the older brother verbally. (The father) did not have any conversation with the petitioner, however." Decision at 6, Finding No. 8. Also, "(Riley's) older brother Ernest had told him that since (Riley) was a juvenile, he should take the 'weight' if any charges were made." Id. at 5, Finding No. 7. ⁹ Riley's father arrived at the police station at approximately 7:30 p. m.

At approximately 8:00 p. m. Riley's handcuffs were removed and he was given Miranda warnings. Riley replied that the warnings had been given twice previously. At this time, the interrogation of Riley was limited to questions concerning his age.

Without readministering Miranda warnings and having been misinformed by Riley's parents that Riley was seventeen years old, Sgt. Reed again spoke with Riley in his cell at approximately 8:30 p. m. Sgt. Reed told Riley that he would be prosecuted as an adult. Riley denied knowledge of the crimes, saying that he was looking for a job at the time of their commission. A neutron activation analysis was performed on Riley's hand to determine whether he had fired a gun and he was fingerprinted in an adjacent room. ¹⁰

Riley was taken to the office of the Chief of Police for further questioning at about 9:00 p. m. Miranda warnings were not readministered. Riley was told that the clothing and hair samples would be analyzed and of the purpose of the neutron activation analysis.

(B)efore any statement was given by petitioner, he was told of the various investigative procedures which were being used and was advised of the evidence against himself as it was being collected by the police officers. This procedure was presumably an investigative technique to break down petitioner's reluctance to confess, but the information was truthful and unembellished.

Decision at 6, Finding No. 8. ¹¹ Despite the denials of Sgt. Reed and Officer Jackson, the district court believed Riley's testimony that after he initially denied having been at the cemetery Riley requested to see his father. ¹² At the evidentiary hearing, Riley made an offer of proof indicating that he wanted to ask his father to obtain an attorney for him. This is consistent with Riley's state court testimony. However, during the interrogation Riley did not indicate why he wanted to see his father. After his request was refused, Riley confessed to the homicides. While doing so, Riley was nervous; his voice cracked; and a tear appeared in one eye.

After confessing, Riley repeated what he had said in abbreviated form to his brother Ernest. He also signed a statement which was transcribed by a court reporter. The taking of that statement was completed at approximately 11:00 p. m. Following this interrogation session, Riley was fed a chicken dinner. ¹³ "After midnight (Petitioner) and (his brother) were permitted to see their fathe...