United States District Court, Northern District of Illinois, E.D
August 20, 1984
UNITED STATES OF AMERICA EX REL. RICKIE COLE, PETITIONER,
MICHAEL LANE, RESPONDENT.
The opinion of the court was delivered by: Shadur, District Judge.
MEMORANDUM OPINION AND ORDER
Rickie Cole ("Cole") has filed a 28 U.S.C. § 2254 ("Section
2254") petition for writ of habeas corpus, based on the admission
into evidence at his state court murder trial of his allegedly
involuntary confession. At Cole's request (and without objection)
this Court treats the answer by Illinois Department of
Corrections Director Michael Lane ("Lane"), together with Lane's
subsequent filing of the state court record, as a Fed.R.Civ.P.
("Rule") 56 summary judgment motion. Cole, acting through
counsel, has filed a cross motion for summary judgment. Based on
the state court record and the analysis in this opinion, Lane
prevails on both motions.
Cole was convicted of the murder of his estranged girlfriend,
based principally on his July 30, 1979 confessions.*fn2 Before those
confessions Elgin Police Detective Gary Shaver ("Shaver") told
Cole if he cooperated he would probably be charged with
manslaughter rather than murder because that was the approach
generally taken in Cook County. Cole later confessed orally to
Elgin police interrogators, repeated his confession for tape
recording and finally signed a typed confession prepared by Elgin
Among the positions Cole asserted during the criminal
proceedings against him was that his confessions should be
suppressed as involuntary. Cole's November 26, 1980 Motion To
Suppress Confessions ¶ 4 (R. 1454) stated:
Between 1:30 P.M. and 3:15 P.M. [July 30, 1979]
Rickie Cole was handcuffed and repeatedly threatened
in the Elgin Police Station by officers of the Elgin
Police force. He had no food or drink during that
period. After denying any involvement
for [sic] the crime with which he was charged he was
taken back and forth from room to room in said police
station and continuously threatened and harrassed
[sic] until he agreed, after being tricked by the
police, into giving an involuntary confession.
In closing argument after a two-day hearing on Cole's motion to
suppress, his attorney argued Shaver's statement to Cole was an
impermissible promise of leniency rendering his confessions
involuntary (see R. 704). That is the only ground on which Cole
now seeks habeas relief.
Cook County Circuit Court Judge Kenneth Cohen denied Cole's
suppression motion in a May 12, 1981 oral bench ruling, during
which he considered each allegedly coercive circumstance. Before
discussing Shaver's promise of leniency he quoted from People v.
Houston, 36 Ill.App.3d 695, 344 N.E.2d 641 (1st Dist. 1976),
which held in part that promises of leniency in that case did not
render a defendant's confession involuntary. Judge Cohen then
stated (R. 725-26):
We have mental — subtle mental threats. He was
promised that he would be afforded leniency or
The Court feels that the words and acts that [sic]
the police officers as described by the Defendant did
not constitute the coercion. That there is nothing
here to indicate that any of the acts or the words
here were likely to produce[ — ]any acts or words of
the police officers that [sic] were likely to
produce[ — ]an untrustworthy confession.
The Court feels that the confession was made freely,
voluntarily, knowingly and intelligently, and that
the State has met their [sic] burden by the
preponderance of the evidence.
Motion to Suppress Confession denied.
On appeal Cole argued (among other things) Judge Cohen had
applied the wrong legal standard to the effect of promises of
leniency on voluntariness of confessions. In an unpublished June
28, 1983 order the Appellate Court for the First District,
115 Ill. App.3d 1154, 78 Ill.Dec. 250, 461 N.E.2d 1084, (No. 81-1745,
slip op. at 6) rejected that contention:
Defendant also claims that the trial court erred in
denying his motion to suppress his confession to the
police because he made the confession after he had
been offered leniency for cooperating. Defendant
testified at his suppression hearing that the reason
he eventually gave a confession was because the
police told him that since the case was in Cook
County, if he would cooperate he would be charged
with manslaughter rather than murder; if he didn't
cooperate, he would get what his brother did for
raping a white girl. The officers who interviewed
defendant at the station denied that they ever
offered leniency to defendant, but that defendant
decided to talk about the murder after he was asked
to submit to fingernail scrapings and was advised of
the purpose of this procedure.*fn3
Defendant argues that based upon the statements made
by the trial court at the conclusion of the hearing
on the motion to suppress, it is evident that the
trial court accepted defendant's version that offers
of leniency were made. However, even if defendant's
account of offers of leniency are accurate, a review
of case law regarding the voluntariness of
confessions after such promises are made reveals that
the totality of the circumstances surrounding the
giving of the confession must be examined; and,
establishing that an offer was made does not, in
itself, establish involuntariness. People v. Baine
(1st Dist. 1980), 82 Ill.App.3d 604, 608,
[38 Ill.Dec. 42], 403 N.E.2d 57, appeal denied,
81 Ill.2d 594.
We have reviewed the circumstances surrounding the
giving of the confessions in this case and conclude
that the trial court did not err in ruling that
defendant's statements were made voluntarily.
Having exhausted his state court remedies, Cole filed the present
Application of Section 2254(d)
Lane argues the state courts' determination of voluntariness of
Cole's confessions is entitled to a presumption of correctness
under Section 2254, a presumption unrebutted by Cole. Cole claims
Section 2254(d) does not apply at all — he says he does not
attack Judge Cohen's factual determinations, challenging instead
the legal standard the state courts applied to those factual
determinations in concluding the confessions were voluntary.
Cole and Lane agree the voluntariness of Cole's confessions
depends on "whether `the totality of the circumstances'
demonstrate [sic] that the accused did not make the decision to
confess of his own free will." Holleman v. Duckworth,
700 F.2d 391, 396 (7th Cir. 1983) (citations omitted). Even under the
"totality of the circumstances" test, of course, a confession may
not be "obtained by any direct or implied promises, however
slight." Hutto v. Ross, 429 U.S. 28, 30, 97 S.Ct. 202, 203, 50
L.Ed.2d 194 (1976), quoting Bram v. United States, 168 U.S. 532,
542-43, 18 S.Ct. 183, 186-87, 42 L.Ed. 568 (1897).
Cole asserts two flaws in the state court decisions when
measured against the federal standards:
1. As the Appellate Court confirmed, Judge Cohen
found Cole did receive a promise of leniency,
certainly exceeding the minimal standard in Ross that
promises need only be "direct or implied promises,
however slight." Thus, Cole says, the Illinois courts
must have misapplied the federal standard.
2. Judge Cohen's oral bench ruling (R. 726) used a
"trustworthiness" rather than a "voluntariness"
Neither argument averts summary judgment for Lane.
As for the first argument, there is no necessary inconsistency
between findings that (1) a promise was given and (2) Cole's
confessions were nonetheless voluntary in light of "the totality
of the circumstances." Ross does not teach a confession is per se
involuntary simply because the confessor had first received a
promise (however slight) from the police. It requires a
confluence of a promise or promises and a confession "obtained
by" such promise or promises. United States v. Robinson,
698 F.2d 448, 455 (D.C.Cir. 1983) illustrates the point. There the
defendant received two promises: first "that his cooperation
`would be made known' to the prosecutor" and second "that he
would not be arrested and charged that very day." After quoting
the Ross standard, Robinson concluded the promises to the
defendant were not enough to "overbear his free will" under
Schneckloth v. Bustamonte, 412 U.S. 218, 225-26, 93 S.Ct. 2041,
2046-47, 36 L.Ed.2d 854 (1973).
Cole Mem. 3 suggests even though a promise might not always
render a confession involuntary, that must have been so in this
case because Cole "also testified that he made a statement to the
police as a direct result of what Shaver had told him." Cole then
Neither the trial court nor the Illinois Appellate
Court rejected this testimony; both held that even if
Coles' [sic] testimony was true, it did not affect
the voluntariness of the confession.
While it is true neither court rejected that testimony in so many
words, it is misleading to say both courts assumed Cole's
testimony was true. Examination of the two state court opinions
clearly discloses they assumed only that Cole received a promise
of leniency, not that everything Cole said about it was true.
Accordingly Cole's argument must fail. Findings by the state
trial and appellate courts that Cole received a promise of
leniency and that the confessions were nonetheless voluntary are
really "tantamount to an express finding" the confessions
were not obtained by promise. Marshall v. Lonberger,
459 U.S. 422, 103 S.Ct. 843, 850, 74 L.Ed.2d 646 (1983). Lonberger held
that when state court legal conclusions presuppose answers to
"questions of historical fact" (id. at 849), factual matters
implicitly resolved by such conclusions must be afforded the same
weight under Section 2254(d) as express findings of fact. And
while Lonberger concerned a state court's finding that a guilty
plea was voluntary, Patterson v. Cuyler, 729 F.2d 925, 931-32 (3d
Cir. 1984) demonstrated Lonberger cannot properly be limited to
such findings and must logically also extend to state court
determinations that confessions were voluntary.
Thus Cole's state court opinions must be read as holding
against him on the factual issue whether his confessions were
"obtained by" Shaver's promise of leniency. Because Cole does not
attack the adequacy of the trial court's factfinding under one of
Section 2254(d)'s subsections, that holding is binding on this
Cole's second argument is that even if the state courts'
factfinding is not necessarily inconsistent with their legal
conclusions, they applied the wrong legal standard to the
voluntariness issue. On that score Cole has seized on Judge
Cohen's already-quoted reference to the absence of any "acts or
words of the police officers that were likely to produce an
untrustworthy confession." Rogers v. Richmond, 365 U.S. 534, 544,
81 S.Ct. 735, 741, 5 L.Ed.2d 760 (1961) held that factor may not
be considered in evaluating the voluntariness of confessions:
The attention of the trial judge should have been
focused, for purposes of the Federal Constitution, on
the question whether the behavior of the State's law
enforcement officials was such as to overbear
petitioner's will to resist and bring about
confessions not freely self-determined — a question
to be answered with complete disregard of whether or
not petitioner in fact spoke the truth.
Cole thus asks this Court to reevaluate the facts in light of the
correct legal standard, holding a hearing if necessary to make
additional findings of fact. See United States ex rel. Cosey v.
Wolff, 682 F.2d 691
, 693-94 (7th Cir. 1982), appeal after remand,
727 F.2d 656
(7th Cir. 1984).
Where Cole's argument fails is in ascribing Judge Cohen's
invocation of the confessions' trustworthiness to the
promise-of-leniency argument at all. That contention was not the
only one before Judge Cohen when he denied Cole's motion to
suppress his confessions. Cole also had urged the Elgin Police
had obtained his confession by trick (see n. 3). People v.
Houston, on which Judge Cohen relied, pertains to the effects of
both promises of leniency and police deception. On the deception
issue, which is not before this Court, Houston, 36 Ill.App.3d at
701, 344 N.E.2d at 646-47 (citation omitted) held:
Courts will invalidate confessions resulting from a
subterfuge that is likely to produce an untrustworthy
By contrast Houston makes no reference to trustworthiness in
evaluating the effects of promises of leniency.
Thus it is clear from the context that Judge Cohen must have
been dealing with Cole's trickery argument — not his leniency
argument — when the judge referred to the likelihood of producing
an untrustworthy confession. That conclusion is fortified by the
fact that the quoted sentence is the only one in Judge Cohen's
ruling that can be construed as ruling specifically on Cole's
trickery argument, the argument Cole advanced most strenuously in
closing argument. Judge Cohen's failure to say he was not dealing
with Cole's promise-of-leniency argument when he uttered the
critical sentence is not a sufficient basis on which to hold a
hearing or to grant Cole's petition.
Over and above that, even were a different view of Judge
Cohen's ruling to be taken (unjustifiably), there is no
indication whatever the Appellate Court committed the same
"error" Cole attributes to Judge Cohen. As already noted, the
Appellate Court applied People v. Baine — which, like Houston,
contains the correct legal
standard.*fn4 Thus Cole has not presented facts from which it could
reasonably be inferred his state court rulings applied the wrong
legal standard to his claim his confessions were involuntary.
There is no genuine issue of material fact, and Lane is
entitled to a judgment as a matter of law. This Court determines
no evidentiary hearing is required (see Rule 8(a) following
Section 2254), and Cole's petition is denied.