Rice, Kevin v. McCann, Terry

In the

United States Court of Appeals

For the Seventh Circuit

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No. 01-3500

KEVIN RICE,

Petitioner-Appellant,

v.

TERRY MCCANN, Warden,

Centralia Correctional Center,

Respondent-Appellee.

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Appeal from the United States District Court

for the Northern District of Illinois, Eastern Division.

No. 00 C 3997—Suzanne B. Conlon, Judge.

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ARGUED APRIL 18, 2002—DECIDED AUGUST 6, 2003

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Before FLAUM, Chief Judge, and HARLINGTON WOOD, JR.,

and POSNER, Circuit Judges.

FLAUM, Chief Judge. In 1992 Kevin Rice was convicted

in the Circuit Court of Cook County of possession of hero-

in with intent to deliver and sentenced to 20 years’ impris-

onment. His state court remedies exhausted, Rice peti-

tioned the federal district court for a writ of habeas

corpus under 28 U.S.C. § 2254. He now appeals the court’s

denial of his habeas petition, arguing that he is entitled

to post-conviction relief based on the Illinois Supreme

Court’s unreasonable application of Chambers v. Missis-

sippi, 410 U.S. 284 (1973), to his case. We affirm.

2 No. 01-3500

I. BACKGROUND

In 1989 two Chicago police officers, Robert Drozd and

Michael Cronin, observed a car with tinted windows

drive by their unmarked police car traveling 40 miles-per-

hour in a 30 miles-per-hour speed zone. The officers pulled

the speeding car over, and Drozd approached the vehicle

on the driver’s side. Through the car’s open window, Officer

Drozd saw the driver, petitioner Rice, hand a brown paper

bag to the passenger, Raymond Pugh; Drozd then watched

Pugh stuff the bag down the front of his pants. Believ-

ing the bag to contain a weapon, Drozd ordered Pugh out

of the car and conducted a pat-down search. Drozd recov-

ered the bag and found what appeared to be an illegal

substance inside (lab tests later showed that the bag

contained 103 grams of heroin). Drozd placed Pugh under

arrest and told Officer Cronin about the transfer of the

bag; Cronin then arrested Rice.

Before Rice and Pugh were tried, Pugh moved to quash

his arrest and suppress evidence obtained from Drozd’s

search. At the suppression hearing, Pugh testified that

he had placed the paper bag containing the heroin down

his pants two hours before he and Rice were stopped by

Officers Drozd and Cronin. Pugh also stated that he had

kept the bag in his pants at all times until Drozd discov-

ered it during the pat-down search. At Rice and Pugh’s

trial, Officer Drozd testified that as he approached the

stopped car he saw Rice hand Pugh the paper bag and

watched Pugh put the bag down his pants. Rice denied

handling the bag or the heroin and called Pugh to testify

that he put the bag down his pants two hours earlier. When

Pugh asserted his fifth amendment privilege, Rice moved

to admit Pugh’s statements from the suppression hear-

ing. The trial judge denied the motion, ruling that Pugh’s

paper bag testimony was inadmissible hearsay because

the issues presented at the suppression hearing were

No. 01-3500 3

not similar enough to the ones at trial to ensure that the

State had a meaningful opportunity to cross-examine Pugh.

The jury ultimately convicted Rice of possession with

intent to deliver heroin, and the court sentenced him to

a 20-year prison term. Rice appealed his conviction, argu-

ing that the court committed prejudicial error by refusing

to admit Pugh’s suppression hearing testimony at trial.

Rice won an initial victory in the Illinois appellate court,

People v. Rice, 617 N.E.2d 360, 363-64 (Ill. App. Ct. 1993),

but a divided Illinois Supreme Court reinstated his con-

viction, People v. Rice, 651 N.E.2d 1083, 1088 (Ill. 1995).

The Illinois appellate court held that Pugh’s statements

at the suppression hearing were statements against his

penal interest and should have been admitted as an

exception to hearsay. Rice, 617 N.E.2d at 362. The appel-

late court examined Pugh’s prior statements for indicia

of reliability using the framework set forth in Chambers

v. Mississippi, 410 U.S. 284, 302 (1973), and decided that

Pugh’s testimony satisfied three of the four requirements

for admission. Rice, 617 N.E.2d at 363 (finding that Pugh’s

former testimony was (1) corroborated by other evidence,

(2) against his penal interests, and (3) subject to cross-

examination, but was not (4) made to a close acquaintance

shortly after the crime).

The Illinois high court disagreed, holding that the trial

court’s exclusion of Pugh’s former testimony was proper

under the state’s evidentiary rules and did not deny Rice

a fair trial under the rule announced in Chambers. Rice,

651 N.E.2d at 1087-88. A majority of the Supreme Court

of Illinois found that Pugh’s statements may have been

against his penal interests, but were not made spontane-

ously to an acquaintance, were not corroborated by any

other evidence, and were not subject to adequate cross-

examination because the issues at stake in the suppres-

sion hearing were limited and the State was not permit-

4 No. 01-3500

ted “to fully test the testimony’s reliability.” Rice, 651

N.E.2d at 1087.

Rice timely filed his application for a writ of habeas

corpus in federal district court pursuant to 28 U.S.C.

§ 2254, tendering six separate grounds for relief. See Rice

v. Bowen, No. 00 C 3997, 2001 WL 1035262 (N.D. Ill.

2001). The district court rejected all of his reasons and

denied his habeas petition. On appeal Rice makes only

one argument: that the Illinois Supreme Court unreason-

ably applied Chambers, and violated his constitutional

right to due process, in deciding that the trial court had

properly excluded Pugh’s suppression hearing testimony

at Rice’s trial.

II. DISCUSSION

Under the Antiterrorism and Effective Death Penalty

Act (“AEDPA”), a habeas petitioner like Rice whose claim

was adjudicated on the merits in state court is not entitled

to relief unless he can demonstrate that the state court’s

decision “was contrary to, or involved an unreasonable

application of, clearly established Federal law, as deter-

mined by the Supreme Court of the United States; or . . .

was based on an unreasonable determination of the facts

in light of the evidence presented in the State court pro-

ceeding.” 28 U.S.C. § 2254(d); Price v. Vincent, 123 S.Ct.

1848, 1852 (2003). The Supreme Court also warns that

under AEDPA we are not at liberty to issue a writ

of habeas corpus based on our “independent judgment

that the relevant state court decision applied clearly

established federal law erroneously or incorrectly. Rather,

that application must also be unreasonable.” Williams

v. Taylor, 529 U.S. 362, 411 (2000); Morgan v. Krenke,

232 F.3d 562, 565-66 (7th Cir. 2000). For our purposes

here, that means we must uphold the Illinois Supreme

Court’s application of Chambers (for there is no dispute

No. 01-3500 5

that this is the correct governing legal principle) to

Rice’s case unless it was objectively unreasonable. 28 U.S.C.

§ 2254(d)(1); Edmunds v. Deppisch, 313 F.3d 997, 999 (7th

Cir. 2002); Williams, 529 U.S. at 404-05. We have said

in other habeas proceedings that a state court’s applica-

tion of federal law is reasonable where it is “at least

minimally consistent with the facts and circumstances

of the case.” Sanchez v. Gilmore, 189 F.3d 619, 623 (7th Cir.

1999). Cf. Williams, 529 U.S. at 410 (acknowledging

that “unreasonable” is difficult to define, but noting that

“it is a common term in the legal world and, accordingly,

federal judges are familiar with its meaning”).

Before we decide the reasonableness of the Illinois

Supreme Court’s decision in this case, we note that we

will not decide whether Pugh’s suppression hearing testi-

mony was in fact reliable enough to be admitted into

evidence at Rice’s trial. Our doing so would usurp the

role of the state courts in determining the admissibility

of evidence at trial under state law, which we are not

permitted to do under AEDPA. See Krenke, 232 F.3d at

567. Instead, we may only consider whether it was unrea-

sonable of the Illinois Supreme Court to hold, in light of

Chambers, that the exclusion of Pugh’s suppression hear-

ing testimony did not violate Rice’s due process right to

present a defense and receive a fair trial. Krenke, 232 F.3d

at 567.

Chambers informs us that “where constitutional rights

directly affecting the ascertainment of guilt are implicated,

the hearsay rule may not be applied mechanistically to

defeat the ends of justice.” Id. 410 U.S. at 302. The Cham-

bers Court provided four factors to consider in determin-

ing whether sufficient indicia of reliability exist to admit

exculpatory hearsay into evidence: (1) whether the state-

ment was made shortly after the crime to a close acquain-

tance, (2) whether other evidence or circumstances cor-

roborate the statement, (3) whether the statement was self-

6 No. 01-3500

incriminatory and against the declarant’s penal interests,

and (4) whether the declarant was subject to adequate

cross-examination. Id. at 300-01. Rice contends that the

Illinois Supreme Court unreasonably applied Chambers

because Pugh’s suppression hearing testimony “bore per-

suasive assurances of trustworthiness and thus was well

within the rationale of the exception for declarations

against interest.” Chambers, 410 U.S. at 302. See also

People v. Rice, 617 N.E.2d 360, 363 (Ill. App. Ct. 1993)

(finding Pugh’s prior statement trustworthy as it sat-

isfies three of four Chambers factors). The State main-

tains there was nothing unreasonable about the Illinois

Supreme Court’s decision: the court identified Chambers

as the correct governing principle of law, considered

Pugh’s prior statements in light of the reliability factors

identified in Chambers, and logically concluded that Pugh’s

suppression hearing testimony was properly excluded

at trial because it was untrustworthy and did not qualify

under any hearsay exception. The federal district court

considered these conflicting interpretations in reviewing

Rice’s habeas petition and decided the Illinois Supreme

Court’s application of Chambers was consistent with the

facts and circumstances of Rice’s case and was therefore

not unreasonable. Rice, 2001 WL 1035262, at *3.

Our review of the record in this case leads us to con-

clude that the disagreement among the Illinois state

courts concerning the reliability of Pugh’s statement,

and the necessity for its admission at Rice’s trial pursu-

ant to Chambers, was reasonable. There is no doubt that

Pugh’s testimony at the suppression hearing—that he

alone had possession of the heroin—is the kind of exculpa-

tory (to Rice) hearsay that Chambers held could not be

automatically excluded by operation of the rules of evi-

dence. The Illinois courts agreed on two of the four Cham-

bers reliability indicators: (1) that Pugh’s testimony was

not made shortly after the crime to a close acquaintance,

No. 01-3500 7

and (2) that the testimony was a statement made against

Pugh’s penal interests. But the courts disagreed on the

remaining two factors: (3) whether corroborating evi-

dence existed to support Pugh’s version of events; and (4)

whether the state had adequate opportunity to cross-

examine Pugh at the suppression hearing. In particular, the

Illinois appellate court decided that several facts and

circumstances, including Pugh’s close relationship with

Rice, the voluntariness of his testimony, the lack of incon-

sistencies in his story compared with other versions of

the stop and search, the lack of evidence that Pugh

wanted to curry favor with the prosecution, and the fact

that Pugh’s statements were made under oath and could

be used to impeach him at trial, all suggest that Pugh had

no motive to fabricate his testimony. But the Illinois

Supreme Court looked at the circumstances differently,

stating without reference to the appellate court’s analysis

that there was no evidence corroborating Pugh’s state-

ments, and also finding that the prosecution did not have

an adequate opportunity to cross-examine Pugh. The high

court reasoned that because Pugh’s suppression hearing

focused on different issues than Rice’s trial, the State could

not have fully tested Pugh’s reliability. Though we may

disagree, knowing of no Illinois rule of evidence that

restricts exploration of a witness’s veracity or motive on

cross-examination regardless of the substantive scope of

the direct examination, our resolution of this point is

neither called for nor permitted on habeas review.

The Illinois courts’ dispute over the Chambers’ factors

reveals that reasonable minds can differ as to the proper

application of the law to the facts of Rice’s case. Ultimately,

this is all that we need to recognize and defer to in decid-

ing whether to grant Rice’s request for habeas relief.

For even if the Illinois Supreme Court’s application of

Chambers was not unassailable, as shown by the contrary

inferences drawn by the Illinois appellate court using

8 No. 01-3500

the same law and the same facts, by the same logic it also

was not unreasonable. Chambers instructs courts to avoid

mechanically applying evidentiary rules where such

application would result in the exclusion of critical evi-

dence and the violation of a criminal defendant’s due

process rights. We cannot conclude that the Illinois Su-

preme Court unreasonably applied this principle of law to

its analysis of Pugh’s excluded hearsay testimony and

the impact of the excluded testimony on Rice’s constitu-

tional right to a fair trial.

III. CONCLUSION

The Illinois Supreme Court’s decision upholding the

trial court’s exclusion of certain hearsay testimony from

Rice’s trial did not involve an unreasonable application of

Chambers v. Mississippi and therefore does not justify

habeas relief in federal court. The district court’s denial of

Rice’s petition for a writ of habeas corpus is AFFIRMED.

POSNER, Circuit Judge, dissenting. The U.S. Supreme

Court held in Chambers v. Mississippi, 410 U.S. 284, 302

(1973), that “where constitutional rights directly affecting

the ascertainment of guilt are implicated, the hearsay

rule may not be applied mechanistically to defeat the ends

of justice.” With all due respect to the contrary view of

my colleagues, it seems me that this is just what the

Supreme Court of Illinois did in this case.

A police officer testified that he saw Kevin Rice hand

Raymond Pugh a bag later discovered to contain heroin. On

the basis of this testimony—and nothing else—Rice was

No. 01-3500 9

convicted in an Illinois state court of possession of an illegal

drug and sentenced to a long term in prison. At a pretrial

hearing on his motion to suppress the evidence consist-

ing of the heroin, Pugh testified that Rice had not

handed him the bag; that he had had it on his person for

hours. At trial, Rice wanted to call Pugh as a witness; but

Pugh, invoking his right not to be compelled to incrim-

inate himself, refused to testify. So Rice sought to intro-

duce in evidence the part of the transcript of the suppres-

sion hearing that recorded Pugh’s testimony, testimony that

if believed would exonerate Rice of the charge of possession.

This was refused. The state supreme court’s reasons

for upholding the refusal were that Pugh’s testimony

was not corroborated and that the state had not had an

opportunity to cross-examine him fully at the suppression

hearing. People v. Rice, 651 N.E.2d 1083, 1085-88 (Ill.

1995).

When as in this case a person who has evidence to

offer is not available to testify, testimony that he gave in

another proceeding is admissible if the opposing party, in

this case the state, “had an opportunity and similar motive

to develop the testimony by direct, cross, or redirect ex-

amination” in that proceeding. Fed. R. Evid. 804(b)(1). I

am quoting from the Federal Rules of Evidence and they

of course do not govern trials in state courts, but the

formulation is standard and Illinois law (though common

law rather than codified) is essentially the same. See

People v. Rice, supra, 651 N.E.2d at 1085 (“it is well set-

tled that the testimony of a witness at a prior hearing

is admissible in evidence at trial where the witness is

unavailable and when ample opportunity to cross-examine

existed at the prior hearing”); People v. Hawkins, 762

N.E.2d 46, 55 (Ill. App. 2001); People v. Taylor, 679 N.E.2d

82, 86-87 (Ill. App. 1997). There is no requirement of

corroboration. That is a requirement of another hearsay

exception, the one for statements against penal interest,

10 No. 01-3500

Fed. R. Evid. 804(b)(3); People v. McCallister, 737 N.E.2d

196, 215 (Ill. 2000), which is also applicable to Pugh’s

testimony at the suppression hearing, see People v. Rice,

supra, 651 N.E.2d at 1086-88, but which is unnecessary

to consider, given the prior-testimony exception.

This is one of the solidest exceptions to the hearsay rule,

see Ohio v. Roberts, 448 U.S. 56, 66 (1980), and a refusal to

apply it in a criminal case presents a substantial issue

under Chambers. The principal justification for the hear-

say rule is that most hearsay statements, being made out

of court, are not subject to cross-examination. People v.

Robinson, 679 N.E.2d 1055, 1059-60 (N.Y. 1997). Hearsay

statements made in court, albeit in a prior proceeding, do

not suffer from that infirmity, provided that, as Rule

804(b)(1) puts it, the opposing party “had an opportunity

and similar motive to develop [or challenge—see Advisory

Committee Note to Subdivision (b), Exception (1)] the

testimony by . . . cross . . . examination.” And again Illinois

law, as set forth in the state supreme court’s decision

upholding Rice’s conviction, People v. Rice, supra, 651

N.E.2d at 1085-86, is the same. An auxiliary justification

for the hearsay rule, but one whose validity has been

strongly challenged, see Michael J. Saks, “Enhancing and

Restraining Accuracy in Adjudication,” 51 L. & Contemp.

Probs., Autumn 1988, pp. 243, 263-64, is that the trier of

fact cannot observe the demeanor of the absent declarant.

Had Pugh’s testimony at the suppression hearing been

believed, the motion to suppress the drug evidence

would have been granted. The only evidence of probable

cause to seize the drugs was the testimony of the police

officer who claimed to have seen Pugh hand them to Rice,

and his testimony would have been totally discredited

had Pugh been believed. So the state had every incentive

to cross-examine Pugh about his relation with Rice and

any other circumstance that might make him less credible.

And not only the incentive, but the right. As remarked

No. 01-3500 11

in People v. Rice, under Illinois law cross-examination even

at a preliminary hearing to determine probable cause for

a search or seizure is not limited to the scope of the direct

examination but includes “such further interrogation

as necessary to show interest, bias, prejudice, or motive of

the witness, to the extent that these factors are relevant

to the question of probable cause.” 651 N.E.2d at 1085. The

Illinois supreme court’s determination that because the

suppression hearing focused on different issues from the

trial the state didn’t have the incentive or opportunity to

test Pugh’s reliability fully is, with all due respect, non-

sense. The issues were different—probable cause to seize

the drugs versus Rice’s possession of them—but the incen-

tive to destroy Pugh’s credibility the same as it would have

been had he testified at trial. If he were believed, the drugs

should not have been seized and Rice was not guilty of

possessing them.

It is not as if the Illinois court had found that the pros-

ecutor at the suppression hearing in fact lacked an incen-

tive to cross-examine Pugh fully. Rather, the court auto-

matically equated a difference in issues to a difference in

incentives to cross-examine. Here is the key passage in the

opinion: “[T]he question presented at codefendant’s sup-

pression hearing dealt with whether Officer Drozd saw

codefendant [i.e., Pugh] tuck a brown paper bag into his

pants after defendant’s car was stopped, giving the officer

probable cause to search codefendant. The focus of the

cross-examination of codefendant at the suppression

hearing therefore was the conduct of codefendant just

prior to the search, his self-interest in testifying falsely

at the suppression hearing, and the issues presented by

the motion to suppress. At trial however, the State’s focus

would be on the guilt or innocence of defendant—a much

different issue than that presented at the suppression

hearing—and any motive codefendant might have in

making exculpatory statements on behalf of defendant.” Id.

12 No. 01-3500

at 1086. The issues were different from a legal standpoint,

but they were not different so far as the relevance of

Pugh’s testimony was concerned. Any motive he might

have had for trying to exculpate Rice would, by undermin-

ing that testimony, strengthen the state’s case that Rice

gave Pugh the heroin and therefore was guilty of illegal

possession.

The court based the exclusion of reliable evidence es-

sential to give a criminal defendant a crack at acquittal on

an irrational ground, the “different issues” ground that as

I have just explained was irrelevant to the pertinence and

reliability of Pugh’s evidence. Because the state supreme

court’s application of Chambers was unreasonable and

the error not a harmless one, as in the otherwise rather

similar case of People v. Hawthorne, 841 P.2d 118, 125-28

(Cal. 1992), Rice is entitled to a new trial.

A true Copy:

Teste:

________________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit

USCA-02-C-0072—8-6-03