Searcy, Derrick v. Jaimet, Danny D.

In the

United States Court of Appeals

For the Seventh Circuit

____________

No. 02-4010

DERRICK SEARCY,

Petitioner-Appellee,

v.

DANNY D. JAIMET, Warden,

Hill Correctional Center,

Respondent-Appellant.

____________

Appeal from the United States District Court

for the Northern District of Illinois, Eastern Division.

No. 02 C 2164—Robert W. Gettleman, Judge.

____________

ARGUED APRIL 3, 2003—DECIDED JUNE 23, 2003

____________

Before CUDAHY, MANION, and KANNE, Circuit Judges.

KANNE, Circuit Judge. Derrick Searcy filed a petition

for a writ of habeas corpus in the United States District

Court for the Northern District of Illinois. He claimed

that his conviction for first-degree murder was tainted by

the violation of his Sixth Amendment right to a broad

opportunity to cross-examine witnesses regarding their

motivation to testify against him. The district court agreed

that the Illinois state court had indeed violated Searcy’s

Confrontation Clause rights and granted his petition.

Because we do not believe that the Illinois state court’s

decision regarding the scope of Searcy’s cross-examina-

2 No. 02-4010

tion rights was either contrary to or an unreasonable ap-

plication of clearly established federal law, we reverse.

HISTORY

Petitioner Searcy was tried and convicted by a jury in

Cook County Circuit Court on the charge of first-degree

murder in the death of Edward Bowman. The State’s case

against Searcy rested heavily on the testimony of two

“occurrence” witnesses who were present during the

events leading up to the murder of Bowman.

The first witness, Clarence Johnson, testified that on

June 6, 1994, he saw Searcy and Bowman arguing, that

Searcy hit Bowman during their argument, and that Searcy

repeatedly told Bowman that he was going to kill him.

Johnson went on to testify that he witnessed a second

altercation between Searcy and Bowman later that same

day, this time on the front porch of Searcy’s home. During

this second argument, Searcy pulled a gun from his shoe

and chased Bowman around the side of Searcy’s house

into the alley. Johnson said he saw Searcy fire two shots

at Bowman as he chased him, neither of which hit Bow-

man. Once Bowman and Searcy reached the alley, Johnson

could no longer see them, but he said he heard five more

shots a few seconds later. After hearing the shots, Johnson

went to the alley where he found Bowman lying on the

ground.

The State’s second primary witness was Michael Brooks,

who was with Johnson during the events of June 6th.

Brooks also testified to seeing Searcy and Bowman argu-

ing early in the day and to witnessing the second argu-

ment at Searcy’s home. Like Johnson, Brooks said he saw

Searcy chase Bowman to an alley adjoining Searcy’s

home and saw Searcy fire two shots at Bowman (he was

unaware if those shots actually hit Bowman). Brooks

testified that some five to ten seconds later he heard five

No. 02-4010 3

more shots, all coming at the same time. He testified to

being the first person to arrive at the scene of the shooting,

where he found Bowman lying in the alley. Brooks said

that Bowman spoke to him at that time, telling him,

“Uhh, I’m not going to make it.”

The police arrived to find Bowman dead at the scene.

At the time, neither Johnson nor Brooks told the police

that they believed that Searcy had shot Bowman. Brooks

did tell a detective about the earlier confrontation between

Searcy and Bowman, but not that he saw Searcy shoot-

ing at Bowman in the later incident. Johnson testi-

fied that he then drove home and called Bowman’s son,

Marlonn Boyd, to tell him about the murder of his father.

They later returned to the scene, where Brooks said he

and Johnson told Marlonn that Searcy had killed his father.

On May 1, 1995, almost one year after Bowman’s death,

the police arrested Searcy on an unrelated matter. Based

on the police interviews of Johnson and Brooks on the

day of Bowman’s death, Searcy was ultimately charged

with Bowman’s murder. The State’s case against Searcy

rested primarily on the testimony of Johnson and Brooks,

who testified at trial as to what they allegedly witnessed

on the day Bowman was killed.

Given the centrality of the testimony of Johnson and

Brooks to the State’s case, a key part of Searcy’s defense

was to call into question their credibility by highlight-

ing discrepancies in their accounts. For example, Searcy

pointed out that the medical examiner testified that Bow-

man had been shot six times in the face. According to

both the medical examiner and the defense’s expert neurolo-

gist, the fourth shot to Bowman’s head likely caused im-

mediate death, conflicting with Brooks’s account of Bow-

man talking to him after he had been shot. The defense

also offered the testimony of Tonita Mills, who said that

on the day Bowman was killed, she saw Brooks arguing

4 No. 02-4010

with a man in the alley behind Searcy’s house. After she

turned away from the argument, she heard several gun-

shots. As she ran away from the scene, she saw Johnson

driving up. She testified that she did not see Searcy at

any point that afternoon.

In addition to noting inconsistencies in Johnson’s and

Brooks’s accounts, Searcy also wanted to inquire into

their possible biases and motivations in testifying. The

defense’s theory was that Brooks was the actual shooter

of Bowman, with Johnson as his accomplice, because

Brooks had learned that Bowman was acting as a police

informant, providing information about Brooks’s drug-

dealing activities. Searcy sought to question them about

the fact that after Bowman had been arrested for posses-

sion of drugs, he began negotiations with the police to

become an informant. He also wanted to cross-examine

both Brooks and Johnson about their alleged membership

in a gang that sold drugs in competition with Bowman.

Searcy argued that his evidence would show that when

Bowman was arrested for drug dealing in 1994, in the

presence of someone named Clinton Boyd (who was a

neighbor of Johnson), he told police that Michael Brooks

was a drug dealer and the one for whom the police

were looking. Searcy was prepared to call as a witness

Chicago Police Officer Donald Washington, who would

testify to the events surrounding Bowman’s arrest, as

well as his subsequent negotiations with Bowman over

the terms of a deal to act as a police informant. He also

offered the testimony of Tonita Mills, who the defense

said would testify to buying drugs from Brooks and John-

son on numerous occasions. Ultimately, the defense

sought to argue that Brooks became aware of Bow-

man’s informant activities (through Clinton Boyd talk-

ing with his neighbor Johnson, who would then talk

to Brooks), providing a motivation for him to murder

Bowman.

No. 02-4010 5

Before the opening statements in Searcy’s trial, the State

moved in limine to prevent the defense from offering

any evidence about the issue of Bowman working as a po-

lice informant. The State was apparently concerned that

the defense’s theory was to create reasonable doubt as

to Searcy’s guilt by giving the jury another potential vil-

lain, regardless of any evidence backing up accusations

against Brooks. The trial court eventually ruled that Searcy

could not cross-examine Johnson or Brooks regarding

the informant issue unless he could provide a foundation

for that line of questioning—by, for example, showing

that they knew that Bowman was informing on them.1

1

The relevant portion of the sidebar discussion in which the

court made its ruling on the State’s in limine motion proceeded

as follows:

COURT: Could you prove, by competent evidence at trial,

that Clinton told [Brooks] that Bowman threw

his name in as the owner, possessor, or a drug

dealer?

DEFENSE: I don’t think I can make that proof at this point,

your Honor, but I do not think that your Honor

can hold that against us. It goes to the weight

of the statement, not its admissibility. . . . It

clearly relates to [Brooks’s] motive to kill this

fellow, and we’ve got a clear connection—

COURT: [Brooks] has to know about it. To develop his

motive to want to kill him, he has to know the

victim, Bowman, is informing on him.

DEFENSE: I think we are entitled to let the jury make that

decision.

***

COURT: I think the linchpin of this issue, of this situa-

tion is, did [Brooks] know even if he or—or was

he informed, incorrectly, that the deceased was

informing on him.

(continued...)

6 No. 02-4010

The trial court did permit the defense to examine both

witnesses outside the presence of the jury on the informant

issue as a means of laying the foundation for such testi-

mony. During this voir dire of Johnson and Brooks, Johnson

admitted to knowing Bowman, but said that he had

never had a conversation with Clinton Boyd regarding

Bowman’s arrest. Instead, the communication between

Johnson and Clinton Boyd was limited to an occasional

1

(...continued)

DEFENSE: I don’t think we can trust [Brooks] to give us an

accurate answer in this case, your Honor.

COURT: Then I think you have to do it in some other

competent way.

DEFENSE: Your Honor, it’s very difficult to prove, for us to

go out and prove [Brooks’s] guilt. We’re entitled

to [an] inference that the jury can make that

decision.

COURT: That’s where I disagree. I think you can’t do

that. What happens is that we get into insinua-

tions and innuendos, and not fair, logical infer-

ences.

***

In terms of the informant issue though, I think

it’s perfectly clear, and it’s alluded to in the case

I just cited, that since you have not established

that you can show Brooks or Johnson knew

that if it is or was true, that Bowman was

informing on them in their alleged drug activi-

ties, I am going to preclude you from entering

into that area. I will, if you want, before Brooks

and Johnson testify, let you ask them under

oath in cross-examination-type questions, if he

was aware of that, and if he says yes, I was,

then I immediately will allow you to go into

that.

Trial Tr. at X-86-88, X-96-97.

No. 02-4010 7

“hello and goodbye.” Johnson also testified that no one

ever told him that Bowman was considering informing on

Brooks. Brooks testified that he also knew Bowman, but

denied knowing that Bowman sold drugs or that Bowman

had been arrested for drug possession in 1994. Brooks

further testified that he had no knowledge that Bowman

was considering becoming a police informant against

him. Brooks became quite agitated when asked by de-

fense counsel if he was aware that Bowman had told the

Chicago police that he was a drug dealer—so agitated,

in fact, that the trial judge had to warn Brooks to “calm

down” and “restrain [himself].”

Given that the two witnesses did not admit to know-

ing that Bowman was negotiating with police to become

an informant against Brooks, and that Searcy was unable

to meet the trial court’s requirement that he prove

such knowledge by other competent evidence, the trial

court granted the government’s in limine motion and

precluded Searcy from inquiring into the informant

issue during examination of Johnson and Brooks in the

presence of the jury.

The jury ultimately found Searcy guilty of first-degree

murder, and the court sentenced him to 42 years imprison-

ment. Searcy then took his case to the Illinois Court of

Appeals, which affirmed the conviction. That court found

that the trial court had not erred in precluding examination

into the informant issue, noting that while the Sixth

Amendment’s Confrontation Clause “guarantees the oppor-

tunity for effective cross examination[,] testimony under

cross-examination may be excluded as irrelevant if it is

remote, uncertain or conjectural.” People v. Searcy, No. 1-

98-2406, slip op. at 16 (Ill. Ct. App. Aug. 2, 2000). The court

went on to note that given the defense’s offer of proof, “[i]t

was speculative whether Clinton Boyd overheard Bowman’s

statements about Brooks . . . it was conjectural whether

Brooks or Johnson knew what Mr. Bowman stated to the

8 No. 02-4010

police or that he was becoming an informant.” Id. at 16-17.

Given the chain of speculation required to reach the

conclusion that Brooks was motivated to kill Bowman

because of his informant activities, the court concluded that

“[w]ithout such evidence [of Brooks’s or Johnson’s knowl-

edge of Bowman’s informant activities], it was not error

to refuse to allow defendant to present the police offi-

cer’s testimony or to cross-examine Brooks and Johnson on

these matters.” Id. at 17.

Searcy filed a petition for leave to appeal to the Illinois

Supreme Court, which was denied on November 29, 2000.

His next step was to seek a writ of certiorari from the

United States Supreme Court; on March 26, 2001, that

petition was also denied.

On March 25, 2002, Searcy filed this habeas petition in

the United States District Court for Northern Illinois. In

his petition, he presented three claims for relief, centered

around the Confrontation Clause of the Sixth Amendment:

(1) that requiring him to show that the witnesses against

him would admit to acts discrediting their testimony as a

precondition to cross-examining them about those acts

was contrary to the rule established by the Supreme Court

in Alford v. United States, 282 U.S. 687 (1931); (2) that

foreclosing cross-examination of the primary witnesses

against him as to their potential bias was an unreasonable

application of the principles laid down by the Supreme

Court in Davis v. Alaska, 415 U.S. 308 (1974), Delaware

v. Van Arsdall, 475 U.S. 673 (1986), and Olden v. Kentucky,

488 U.S. 227 (1988); and (3) that the Confrontation Clause

error committed by the Illinois courts was not harmless.

The district court granted Searcy’s petition, finding that

the Illinois appellate court had “unreasonably applied

federal law” by affirming the trial court’s limitation on his

ability to cross-examine Johnson and Brooks: “Although the

appellate court acknowledged the Confrontation Clause

issue at stake, and appropriately cited to state authority

No. 02-4010 9

which in turn cited to the appropriate federal precedent,

the court finds that its analysis was so erroneous as to

be unreasonable.” Searcy v. Pierson, No. 02-C-2164, 2002

U.S. Dist. LEXIS 19899, at *24 (N.D. Ill. Oct. 18, 2002).

According to the district court, the state court erred be-

cause it “entirely overlook[ed] the centrality of Brooks’s

and Johnson’s testimony to the prosecution’s case, as well

as the fact that the trial judge precluded all cross-exam-

ination on the issue of bias or motive before the jury.” Id.

While the district court did “recognize[ ] and appreciate[ ]

a trial judge’s discretion to exclude speculative or conjec-

tural evidence on relevance grounds,” id. at *25, it never-

theless found that the defense had a “good faith factual

predicate” for its questions.2 Id. at *26. Having found a

Confrontation Clause violation, the district court went on

to find that the violation was not harmless and there-

fore granted Searcy’s petition. The State appealed to this

Court.

ANALYSIS

We review the decision of the district court to grant

Searcy’s habeas petition de novo. Anderson v. Cowan, 227

F.3d 893, 896 (7th Cir. 2000). The provisions of the

Antiterrorism and Effective Death Penalty Act (“AEDPA”),

however, significantly constrain any federal court review

of a state court conviction. As provided in that statute:

An application for a writ of habeas corpus on behalf

of a person in custody pursuant to the judgment of a

2

The district court identified this factual predicate later in its

opinion: “Officer Washington’s proffered testimony, the veracity

of which has not been called into question by the State, provided

a sufficient factual predicate to support the theory that Brooks

knew the victim [Bowman] had told the police about Brooks’ drug

activities.” Searcy, 2002 U.S. Dist. LEXIS 19899, at *28.

10 No. 02-4010

State court shall not be granted with respect to

any claim that was adjudicated on the merits in State

court proceedings unless the adjudication of the claim—

(1) resulted in a decision that was contrary to, or

involved an unreasonable application of, clearly

established Federal law, as determined by

the Supreme Court of the United States.

28 U.S.C. § 2254(d)(1) (2003). Because Searcy’s Sixth

Amendment Confrontation Clause claims were heard

and adjudicated by the Illinois courts, we will grant his

habeas petition only if the state court decision falls with-

in one of the narrow categories identified in the statute.

In determining whether the district court was correct

in granting Searcy’s habeas petition, we first must pin

down the “clearly established Federal law” which Searcy

argues was offended by the Illinois state court decision.

The Supreme Court has stated that only “the holdings, as

opposed to the dicta,” of that Court’s decisions qualify as

“clearly established Federal law” for purposes of AEDPA.

Williams v. Taylor, 529 U.S. 362, 412 (2000). Once the

clearly established governing legal principles are identi-

fied, we must then determine whether the state court’s

decision was either “contrary to, or involved an unreason-

able application of” those legal principles.

A. Searcy’s “Contrary To” Claim

We begin with Searcy’s contention that the limitation on

his ability to cross-examine Johnson and Brooks was

contrary to the rule of Alford. A state court decision is

“contrary to” federal law “if the state court applies a rule

that contradicts the governing law set forth” in Supreme

Court cases or “if the state court confronts a set of facts that

are materially indistinguishable from a decision of [the

Supreme] Court and nevertheless arrives at a result

No. 02-4010 11

different from [that] precedent.” Williams, 529 U.S. at 405-

06.

From the Supreme Court’s decision in Alford, Searcy

takes this legal proposition: “[T]he right to conduct other-

wise appropriate cross-examination cannot be conditioned

upon proof in advance of what the cross-examination

would establish.” In Alford, the Supreme Court held that

the trial court was wrong in precluding the defense from

asking an adverse witness where he lived. The question

was posed because the witness was then in federal cus-

tody, and the defendant wished to establish for the jury

this basis for potential bias in favor of the government.

In reversing the trial court’s limitation on the defendant’s

cross-examination, the Court stated that “[i]t is the essence

of a fair trial that reasonable latitude be given the cross-

examiner, even though he is unable to state to the

court what facts a reasonable cross-examination might

develop.” Alford, 282 U.S. at 692.

Searcy argues that the state courts’ refusal to allow

him to cross-examine Brooks and Johnson regarding

the informant issue without first providing a foundation

for his theory of bias in advance of that cross-examination

violates the rule of Alford. But the trial court did not

require that Searcy prove his defense theory before he

would let Searcy cross-examine them regarding a poten-

tial motivation for murdering Bowman. The trial court

simply conditioned Searcy’s inquiry into the informant issue

on his ability to lay a sufficient factual predicate for that

line of questioning, to avoid potential “insinuations and

innuendos, and not fair, logical inferences.” (Trial Tr. at X-

88.) That factual predicate was not required to come sole-

ly from the testimony of Brooks and Johnson; the trial

court told defense counsel that if the two witnesses would

not admit to such knowledge, “I think you have to [prove]

it in some other competent way.” (Trial Tr. at X-88.)

12 No. 02-4010

The trial court’s decision to require a sufficient fac-

tual basis for the line of questioning as a precondition to

cross-examination does not run afoul of Alford. On the

contrary, the Alford Court noted that a defendant need

be given “reasonable latitude” to conduct a “reasonable

cross-examination.” Alford, 282 U.S. at 692 (emphasis

added). In his brief to this court, Searcy himself acknowl-

edges that Alford applies to “otherwise appropriate” cross-

examination. It is well established that purely conjec-

tural or speculative cross-examination is neither reason-

able nor appropriate. See, e.g., Bui v. DiPaolo, 170 F.3d

232, 243-46 (1st Cir. 1999) (“One well-established basis

for circumscribing cross-examination is a party’s inabil-

ity to lay a proper evidentiary foundation for the questions

he wishes to pose.” (citations omitted)).

In this case, the Illinois state courts applied the correct

rule—the state appeals court identified the importance of

a defendant’s right under the Confrontation Clause to cross-

examine the witnesses against him, and it cited the cor-

rect authority governing the exercise of that right (as

acknowledged by the district court)—yet determined that

Searcy had not provided enough of a factual basis to fairly

allow him to ask highly prejudicial questions. In other

words, the trial court’s requirement that cross-examina-

tion of Johnson and Brooks be preceded by a showing of

a sufficient factual basis for the questions ensured

that Searcy’s line of inquiry was “otherwise appropriate.”

We note that the Supreme Court has recognized that “[t]he

extent of cross-examination with respect to an appropri-

ate subject of inquiry is within the sound discretion of

the trial court.” Alford, 282 U.S. at 694. Given this, we

cannot say that the trial court’s decision was contrary to

Alford.

No. 02-4010 13

B. Searcy’s “Unreasonable Application” Claim

Searcy next argues that his conviction involved an

unreasonable application of the federal law laid down in

a trio of Supreme Court cases: Van Arsdall, Davis, and

Olden. A state court decision involves an “unreasonable

application” of federal law “if the state court identifies the

correct governing legal principle from [the Supreme] Court’s

decisions but unreasonably applies that principle to the

facts of the prisoner’s case.” Williams, 529 U.S. at 413. The

Supreme Court has emphasized that “[t]he ‘unreasonable

application’ clause requires the state court decision to be

more than incorrect or erroneous. The state court’s ap-

plication of clearly established law must be objectively

unreasonable.” Lockyer v. Andrade, 123 S. Ct. 1166, 1174

(2003) (citations omitted); see also Williams, 529 U.S. at

411 (“[A] federal habeas court may not issue the writ sim-

ply because that court concludes in its independent judg-

ment that the relevant state-court decision applied clearly

established federal law erroneously or incorrectly.”). We

have taken this to mean that substantial deference is

due state court determinations: “the statute commands

deference to the state court’s judgment by using the

word ‘unreasonable,’ which is stronger than ‘erroneous.’ ”

Hennon v. Cooper, 109 F.3d 330, 334 (7th Cir. 1997); see

also Lockyer, 123 S. Ct. at 1175 (cautioning against con-

flating error with unreasonableness). Under such a defer-

ential regime, a reasonable state court judgment is one

“at least minimally consistent with the facts and circum-

stances of the case . . . even if it is not well reasoned or

fully reasoned, or even if it is one of several equally plausi-

ble outcomes.” Schaff v. Snyder, 190 F.3d 513, 523 (7th

Cir. 1999) (quotations omitted).

From the trio of cases he cites, Searcy distills this govern-

ing legal principle: “Courts may not completely foreclose

cross-examination regarding witness bias.” In Davis, the

Supreme Court emphasized that “[t]he partiality of a

14 No. 02-4010

witness is subject to exploration at trial, and is always

relevant as discrediting the witness and affecting the

weight of his testimony. . . . [T]he exposure of a witness’

motivation in testifying is a proper and important func-

tion of the constitutionally protected right of cross-exam-

ination. ” 415 U.S. at 316 (quotation and citation omitted).

The importance of permitting a defendant broad scope in

cross-examining the witnesses against him was reaf-

firmed by the Court in Van Arsdall, 475 U.S. at 678-79,

and Olden, 488 U.S. at 231.

But it is also well established that a defendant does

not enjoy an unlimited right to pursue any subject on cross-

examination, as the Supreme Court has made clear:

It does not follow, of course, that the Confrontation

Clause of the Sixth Amendment prevents a trial judge

from imposing any limits on defense counsel’s inquiry

into the potential bias of a prosecution witness. On

the contrary, trial judges retain wide latitude insofar

as the Confrontation Clause is concerned to impose

reasonable limits on such cross-examination based on

concerns about, among other things, harassment,

prejudice, confusion of the issues, the witness’ safety,

or interrogation that is repetitive or only marginally

relevant.

Van Arsdall, 475 U.S. at 679. Lower courts have applied

this language to justify limitations on cross-examina-

tion into subjects for which there is no proper foundation,

see Reddick v. Haws, 120 F.3d 714, 717 (7th Cir. 1997)

(finding that limitation on cross-examination was appro-

priate when the defendant “could neither lay a rudimen-

tary foundation for the circumstances [into which he

wished to inquire], nor establish when the underlying

conduct took place, despite the considerable leeway the

trial court was willing to give him on this”); United States

v. Lin, 101 F.3d 760, 767-68 (D.C. Cir. 1996) (“Highly

No. 02-4010 15

prejudicial questioning of the sort proposed here, however,

requires a reasonable grounding in fact.”); Bui, 170 F.3d

at 243-46, or into matters that are unduly speculative, see

United States v. Lo, 231 F.3d 471, 482-83 (9th Cir. 2000)

(affirming limitation on cross-examination into fraud al-

legations because of “the highly speculative nature” of

those allegations).

In Searcy’s case, the district court found that the Illinois

courts had unreasonably applied the Van Arsdall-Davis-

Olden principle by “precluding the defense from cross-

examining the State’s key witnesses about their biases

and motives.” Searcy, 2002 U.S. Dist. LEXIS 19899, at *29.

But that is too broad a characterization of what the

state courts did. They did not foreclose any inquiry into the

bias or motivation of key prosecution witnesses; such a

complete limitation would clearly violate the rule of

Davis, Van Arsdall, and Olden. Rather, the state courts

required that before Searcy could question Johnson and

Brooks about Bowman negotiating to act as a police infor-

mant, he provide, by competent evidence, a sufficient

factual basis for those questions—what the trial court judge

called the “linchpin of this issue.” The question in this

habeas case, therefore, comes down to whether the trial

court, in requiring a (rather substantial) showing of fac-

tual support for Searcy’s informant questions, went be-

yond imposing a “reasonable” limit (based on foundation

concerns) on Searcy’s ability to confront the witnesses

against him.

At trial, Searcy offered several items of evidence that

he said provided a factual basis for his informant ques-

tions, the most important of which was the testimony of

Officer Washington. The officer was prepared to testify

that at the time of Bowman’s arrest, there was another

individual present (Clinton Boyd) who was close enough

to have heard Bowman protest that the police had “got

the wrong guy” and that they should go after “Country”

16 No. 02-4010

(Brooks’s nickname). He would testify that after the arrest,

he began to negotiate a deal whereby Bowman would

work as a police informant in exchange for lenient treat-

ment in connection with his drug arrest, but that Bowman

was killed before the deal could be finalized. Officer Wash-

ington was apparently unable to testify, however, that

Clinton Boyd had told either Johnson or Brooks of Bow-

man’s accusatory statement at the time of his arrest, that

Clinton Boyd was even aware of the negotiations over

Bowman’s informant status, or that anyone else had

learned of the negotiations and informed either Johnson

or Brooks.

In addition to Officer Washington’s testimony, Searcy

offered the testimony of Tonita Mills, who stated at trial

that she had previously bought drugs from both Johnson

and Brooks, and that she had witnessed Brooks arguing

with Bowman immediately prior to his murder. Searcy

contends that her testimony adds to his factual predicate

by demonstrating that Brooks and Johnson had a reason

to fear Bowman’s informing on them (by showing that

they actually were drug dealers) and that Brooks was

angry at Bowman for some reason, causing them to argue.

Searcy also noted that during the voir dire of Johnson

outside the presence of the jury, Johnson admitted that

he knew both Clinton Boyd and Bowman, and that he

had spoken with Bowman between his arrest and murder.

Searcy suggests this evidence, taken together, provides a

sufficient basis from which the jury could reasonably

infer that Johnson had in fact learned of Bowman’s infor-

mant activities.

Both the Illinois trial court and the Illinois appellate

court found that Searcy’s evidentiary proffer was insuffi-

cient to avoid problems of innuendo and insinuation. The

district court disagreed, finding that the state courts

should have allowed cross-examination on the issue of

No. 02-4010 17

Brooks’s and Johnson’s motivation for murdering Bowman.

The district court concluded that “[g]iven the theory of

bias and motive at stake, the centrality of Brooks’s and

Johnson’s testimony to the prosecution, and defendant’s

good faith predicate,” the limitation on Searcy’s cross-

examination of Brooks and Johnson violated his Confron-

tation Clause rights. Searcy, 2002 U.S. Dist. LEXIS 19899,

at *26. As demonstrated by the district court’s opinion,

that determination required the balancing of several

factors. See id. at *23 (“Confrontation Clause violations

do not lend themselves to simple straightforward analysis,

but rather involve a balancing of many factors.”). Presum-

ably, the state courts weighed the same factors as the

district court—the theory of the defense, the importance

of the testimony of Johnson and Brooks to the prosecution,

and the strength of the proffered factual predicate for the

line of questioning—but came to a different conclusion.

As the Supreme Court has emphasized, for a federal

habeas court to reject the state courts’ application of fed-

eral law, the state courts’ conclusions must be “more

than incorrect or erroneous.” While we would have pre-

ferred that the trial court had accepted a less substantial

factual showing before allowing cross-examination, or

that Searcy have been allowed to cross-examine the wit-

nesses based on the proof he had offered, our view of

the “correct” conclusion is not dispositive. Our review is

limited to the question of whether the state courts’ resolu-

tion of the issue was “objectively unreasonable.” Lockyer,

123 S. Ct. at 1174. A federal court’s deference to the

state court’s resolution of the issues involved is even more

important when such resolution requires the weighing

of factors against one another: “when the constitutional

question is a matter of degree, rather than of concrete

entitlements, a ‘reasonable’ decision by the state court

must be honored.” Holman v. Gilmore, 126 F.3d 876, 881-82

(7th Cir. 1997) (quotation omitted)). Indeed, the trial tran-

18 No. 02-4010

script discloses an informed and highly professional discus-

sion among the judge and opposing lawyers on this issue.

In this case, we cannot say that the Illinois courts’

determination that Searcy had failed to establish a suffi-

cient factual basis for his desired line of questioning

was “objectively unreasonable.” On the contrary, the Illi-

nois courts’ decision was “at least minimally consistent

with the facts and circumstances of the case . . . even if it

is not well reasoned or fully reasoned;” that decision was,

at the least, “one of several equally plausible outcomes.”

Schaff, 190 F.3d at 522.

Searcy’s offer of proof in support of his cross-examination

effort was far from a “slam dunk.” The testimony of Offi-

cer Washington and Tonita Mills, as well as the admis-

sion by Johnson that he both knew and had spoken

with Clinton Boyd, simply established that it was possible

for Boyd to have heard Bowman’s statement regarding

Brooks at the time of his arrest, and that it was possible

for Boyd to have mentioned this to Johnson, who then

possibly told Brooks. The evidence proffered by Searcy did

not suggest how Boyd, Johnson, or Brooks had become

aware (if indeed they had) that Bowman had moved be-

yond making a “you got the wrong guy” statement at the

time of his arrest to begin negotiations to serve as a po-

lice informant. Finding the offer of proof insufficient to

support the line of questioning Searcy desired was a

“plausible” (even if, in our opinion, incorrect) conclusion

by the state trial and appellate courts.

While it is true that when the testimony of a witness

is central to the prosecution’s case, a defendant should

be given the “maximum opportunity” to cross-examine

that witness, Burr v. Sullivan, 618 F.2d 583, 587 (9th Cir.

1980), that does not mean that a defendant will be given

every opportunity, no matter how speculative, confusing,

or irrelevant the line of questioning may be. While a

No. 02-4010 19

close question in this case, we cannot say that it was

unreasonable for the Illinois courts to have required Searcy

to demonstrate a factual basis for the informant line of

questioning (even if we disagree with the level of proof

the Illinois courts required). Because that decision was

not objectively unreasonable, it is entitled, under AEDPA,

to deference from a federal habeas court.

CONCLUSION

The Illinois Court of Appeals’ decision affirming Searcy’s

conviction was neither “contrary to” nor did it involve “an

unreasonable application of” clearly established federal

law. Therefore, the decision of the district court granting

Searcy’s petition for a writ of habeas corpus is REVERSED

and Searcy’s petition is DENIED.

CUDAHY, Circuit Judge, dissenting. As the district

court and the majority have both recognized, this case

boils down to balancing Searcy’s constitutional right to

confront his accusers against a requirement that he

make a more or less conclusive showing (as an evidentiary

foundation) that Brooks and Johnson were aware of Bow-

man’s informant activities. The district court held that

the Illinois courts had struck an unreasonable balance,

while the majority believes that those courts reached “one

of several equally plausible outcomes,” even if not the

“preferred” one. Maj. op. at 17, 18. I agree with the district

court that the state balancing was so lopsided as to amount

to an unreasonable application of Supreme Court precedent.

The difference between the state view and an appropriate

20 No. 02-4010

federal view is more than the minor discrepancy that the

majority would countenance in an exercise of deference.

Since the majority opinion does an admirable job of lay-

ing out the relevant facts, I shall stress only a few key

points. First, Brooks and Johnson were not merely central

to the prosecution’s case—they were the case. The prosecu-

tion’s only evidence tying Searcy to Bowman’s murder

was the testimony of Brooks and Johnson; there was no

physical evidence at all (indeed, the medical evidence

strongly suggested that at least part of Brooks’ testimony

was false). Brooks and Johnson came forward with their

eyewitness accounts almost a full year after the murder

had taken place, although they had been interviewed by

the police on the day of the murder. Second, Searcy’s

defense at trial was that Brooks and Johnson were the

guilty parties. To support this theory, Searcy needed to

demonstrate to the jury a potential motive for Brooks

and Johnson to murder Bowman. Searcy planned to show

such a motive by cross-examining Brooks and Johnson on

their rumored membership in a gang that sold narcotics in

competition with Bowman and their probable awareness

of the fact that Bowman was cooperating with police as

an informant on Brooks’ drug activities. Both lines of cross-

examination were, as recounted in the majority opinion,

denied.

Third, Searcy offered outside of the jury’s presence

substantial evidence connecting Brooks and Johnson to

knowledge of Bowman’s informant activities. Chicago

police officer Donald Washington swore in an affidavit

that he and another officer had arrested Bowman three

months before his murder. At that time, in the presence

of Clinton Boyd, who was a neighbor of Johnson, Bowman

protested that Washington had “the wrong guy,” and

that he should instead arrest Brooks. Washington fur-

ther swore that Bowman was actually in negotiations to

act as an informant against Brooks before Bowman was

No. 02-4010 21

murdered. Of course, Brooks denied knowledge of these

facts, but when questioned outside the presence of the

jury about them, he became quite agitated, prompting

the trial judge to instruct Brooks to “remain calm” and

“restrain [himself].” Johnson acknowledged speaking to

Boyd in the time between Bowman’s arrest and Bowman’s

death, though only casually and not about Bowman.

The decisions of the Illinois courts here cannot be recon-

ciled with the abundant precedent that protects a defen-

dant’s constitutional right to probe bias and motive of

prosecution witnesses in cross-examination before the jury.

See, e.g., Davis v. Alaska, 415 U.S. 308, 316 (1974) (“The

partiality of a witness is subject to exploration at trial,

and is always relevant as discrediting the witness and

affecting the weight of his testimony.”) (internal quotation

marks omitted); Redmond v. Kingston, 240 F.3d 590, 593

(7th Cir. 2001) (“ ‘[W]hile generally applicable eviden-

tiary rules limit inquiry into specific instances of conduct

through the use of extrinsic evidence and through cross-

examination with respect to general credibility attacks, . . .

no such limit applies to credibility attacks based upon

motive or bias.’ ” (quoting Quinn v. Hayes, 234 F.3d 837,

845 (4th Cir. 2000)). Trial courts must permit defendants

“to expose to the jury the facts from which jurors, as the

sole triers of fact and credibility, could appropriately

draw inferences relating to the reliability of the witness.”

Davis, 415 U.S. at 318. “Limitations on cross examina-

tion rise to the level of a Sixth Amendment violation when

they prevent the exposure of a witness’s bias and motiva-

tion to lie.” United States v. Smith, 308 F.3d 726, 738 (7th

Cir. 2002) (citing Delaware v. Van Arsdall, 475 U.S. 673,

678-79 (1986)). The importance of the right of cross-exami-

nation is heightened when the testimony of the witness

in question is the only evidence directly linking the de-

fendant to the crime. Olden v. Kentucky, 488 U.S. 227, 233

(1988); Davis, 415 U.S. at 317-20. Where a witness’s tes-

22 No. 02-4010

timony is “virtually the only evidence of [the defendant’s]

guilt,” the witness’s credibility becomes the “central issue

in the case.” Redmond, 240 F.3d at 592. The Confronta-

tion Clause requires that a defendant be allowed to ques-

tion such key witnesses so that the jury can “make an

informed judgment as to the weight to place on . . . testi-

mony which provide[s] a crucial link in the proof” against

the defendant. Davis, 415 U.S. at 317 (internal quotation

marks omitted).

Even though the denial here of effective cross-examina-

tion seems erroneous in itself, the prosecutor’s closing

arguments made that denial even more prejudicial: “Where

is [Brooks’ and Johnson’s] motive? We have all these

little shadowy insinuations, all these speculations about

drugs . . . . How does that tie into [Brooks and Johnson]? . . .

There is no evidence folks.” The prosecution referred to

Brooks and Johnson as “heroes,” “excellent witnesses” and

“two of the most credible people that will ever come into

a courtroom.” Ignoring Brooks’ obvious agitation outside

the presence of the jury, the prosecution also referred

specifically to the heightened credibility conferred by his

demeanor in court. These jury arguments highlight the

overwhelming importance to Searcy of his Confrontation

Clause right to cross-examine Brooks and Johnson.

Searcy showed that Bowman was about to act as an

informant against Brooks. Searcy also showed that John-

son’s neighbor had likely overheard Bowman tell the po-

lice that Brooks should be arrested for drug dealing.

Johnson even admitted to speaking with his neighbor in

the relevant time period. The only piece of information

not fully verified was whether, in fact, the critical infor-

mation was transmitted from Johnson’s neighbor to John-

son and Brooks. In essence, the trial judge refused Searcy

his constitutional right to cross-examination simply be-

cause Brooks and Johnson refused to inculpate them-

selves on the stand. This, I believe, was a serious error.

No. 02-4010 23

Even if cross-examination of Brooks and Johnson on these

matters had resulted in denials, cross-examination would

have permitted the jury to observe Brooks’ agitated de-

meanor when confronted. See Henry v. Speckard, 22 F.3d

1209, 1215 (2d Cir. 1994) (explaining that “the witness

may well answer bias-probing questions in the negative;

but the matter of whether her answers should be be-

lieved or disbelieved is within the sole province of the

jury”). Balanced against the crucial significance of Brooks’

and Johnson’s testimony, the purported “missing link” in

Searcy’s motive evidence hardly presented a sufficient

degree of speculation to justify denial of his Sixth Amend-

ment rights.

I therefore respectfully dissent.

A true Copy:

Teste:

________________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit

USCA-02-C-0072—6-23-03