McFowler, Clifton v. Jaimet, Danny D.

In the

United States Court of Appeals

For the Seventh Circuit

____________

No. 03-1162

CLIFTON McFOWLER,

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. 96 C 5681—Joan B. Gottschall, Judge.

____________

ARGUED MAY 27, 2003—DECIDED NOVEMBER 13, 2003

____________

Before ROVNER, DIANE P. WOOD, and WILLIAMS, Circuit

Judges.

ROVNER, Circuit Judge. Following a 1992 bench trial,

an Illinois judge convicted Clifton McFowler of first-degree

murder and ordered him to serve a prison term of forty

years. The Illinois Appellate Court affirmed McFowler’s

conviction, judging the testimony of Charlene Meredith,

who placed McFowler at the scene of crime with a shotgun

in his hand, sufficient to convict him beyond a reasonable

doubt notwithstanding conflicts in the evidence as to

whom Meredith had picked out of a lineup shortly after

the murder. The district court (Hon. Joan B. Gottschall)

granted McFowler’s petition for a writ of habeas corpus,

2 No. 03-1162

concluding that the Illinois Appellate Court had unreason-

ably applied Jackson v. Virginia, 443 U.S. 307, 99 S. Ct.

2781 (1979), when it sustained McFowler’s conviction based

on Meredith’s identification testimony. United States ex

rel. McFowler v. Pierson, 2003 WL 76861 (N.D. Ill. Jan. 8,

2003). In view of the irreconcilable inconsistencies in

Meredith’s own testimony, we share the district court’s

doubts about the reliability of her identification. “The

vagaries of eyewitness identification are well known; the

annals of criminal law are rife with instances of mistaken

identification.” United States v. Wade, 388 U.S. 218, 228,

87 S. Ct. 1926, 1933 (1967). However, the Antiterrorism and

Effective Death Penalty Act of 1996 commands great

deference to the decisions of state courts. See 28 U.S.C.

§ 2254(d); e.g., Bell v. Cone, 535 U.S. 685, 693, 122 S. Ct.

1843, 1849 (2002). Because we cannot say that the Illi-

nois Appellate Court was objectively unreasonable in

holding that Meredith’s testimony provided sufficient

support for McFowler’s conviction, we are compelled to

reverse the grant of McFowler’s petition for a writ of

habeas corpus.

I.

Sammy Logan was shot on October 9, 1989, when he

answered a knock at the front door of his home. He lapsed

into a coma and died three days later. An autopsy would

reveal that he had been shot in the forehead and that

the bullet had penetrated his brain.

Although the Illinois Appellate Court was not explicit on

this point, it is undisputed that McFowler’s murder con-

viction is premised not on the notion that McFowler shot

Logan himself, but rather on the theory that McFowler

is legally accountable for the acts of the person who did.

The trial judge neglected to make this clear when he

convicted McFowler, but his remarks at sentencing elimi-

No. 03-1162 3

nate any doubt on this score. Indeed, the State defends

McFowler’s conviction solely on an accountability theory.

Illinois law provides that “[a] person is legally account-

able for the conduct of another when . . . [e]ither before

or during the commission of an offense, and with the in-

tent to promote or facilitate such commission, he solicits,

aids, abets, agrees or attempts to aid, such other person

in the planning or commission of the offense.” 720 Ill.

Comp. Stat. Ann. 5/5-2(c) (West 2003). As we shall see,

there is ample circumstantial evidence from which one

reasonably might conclude both that McFowler was pres-

ent at the scene of the murder and that he fled from the

scene in the immediate aftermath. However, mere pres-

ence at the scene of a crime—even with knowledge that

a crime is being committed—and flight from the scene

do not suffice to establish accountability for the acts of a

principal under Illinois law. E.g., People v. Williams, 739

N.E.2d 455, 472 (Ill. 2000), cert. denied, 533 U.S. 953, 121

S. Ct. 2599 (2001). The State must also prove that the

defendant intended to facilitate or promote the principal’s

criminal activity. E.g., People v. Stanciel, 606 N.E.2d 1201,

1210 (Ill. 1992). The critical evidence pointing to Mc-

Fowler’s complicity in the murder came from Meredith.

In October of 1989, Meredith resided in a second-floor

apartment at 3144 West Lexington Street in Chicago

along with Logan (her boyfriend), Glenda Roberts

(Meredith’s sister), Percell Swinney (Roberts’ boyfriend),

and seven children. At approximately 11:45 a.m. on October

9, there was a knock at the front door of the apartment. At

that time, Logan, Meredith, and Meredith’s children were

congregated in a bedroom opposite the kitchen. Against

Meredith’s advice, Logan left the bedroom to answer the

knock, closing the bedroom door behind him. Through the

closed door, Meredith subsequently heard a shot. Meredith’s

two-year-old son Davion opened the bedroom door, and

at a distance of approximately sixteen feet, Meredith

4 No. 03-1162

would later testify, she saw a somewhat short African-

American man with a shotgun in his hand standing in the

kitchen. He was wearing blue jeans and a white t-shirt.

Next to him, lying on the floor of the kitchen, was Logan. At

first, the intruder’s face was turned away from Meredith

toward Swinney, who was standing in a doorway between

the kitchen and the living room. But Meredith got a

clear look at the intruder’s face when he subsequently

tripped over Logan’s body. Meredith also heard a voice

from somewhere else in the apartment say “if you are

going to shoot him[,] shoot him.” Tr. G22. Meredith

grabbed Davion by the shirt and pulled him into the

bedroom closet along with her other children. They re-

mained in the closet for approximately fifteen to twenty

minutes, until Meredith’s sister came to find her. Meredith

later saw that Swinney had been shot in the arm.

Police were summoned from a nearby police station by

a neighbor who ran into the police station yelling that

two men had just been shot. They arrived at the scene

within minutes of the shooting. Officer J. Delpilar found

Swinney sitting on the front steps of the building with a

gunshot wound to his right arm. When he entered the

second-floor apartment, Delpilar saw Logan lying on the

floor in a pool of blood, unconscious but still breathing.

Delpilar spoke with Swinney and the other witnesses and

subsequently broadcast a description of three suspects: (1)

an African-American male in his late teens or early twen-

ties, approximately six feet tall, 180 pounds, with brown

eyes and black hair, wearing a red and white jogging

suit and gym shoes; (2) a second African-American male

in his twenties, wearing an orange shirt and red jogging

pants; and (3) a female African American aged eighteen

to twenty, wearing white pants and tall black riding boots.

On further inspection of the scene, Delpilar found a set

of automobile keys near the top of the stairs leading to

the second-floor apartment where Meredith and Logan

No. 03-1162 5

lived. Those keys, he discovered, fit the driver’s side door

and ignition of a gray Ford Escort parked in front of (and

across the street from) the property. Officer Edward

Kulbida learned from bystanders that the suspects had

attempted to use that car as their getaway vehicle. (The

keys found in the stairwell explain why the suspects had

left the Escort behind and fled on foot.) Because Delpilar

failed to handle the keys in such a way as to preserve

any fingerprints on them, they were not tested for prints.

However, prints lifted from the exterior of both the driver

and passenger sides of the Escort matched McFowler

and Byndum, respectively. It could not be said how long

those prints had been on the car.

Touring around the area to the north of the crime scene,

Kulbida and other officers soon spotted a woman—Shanie

Flowers—matching the description of the female suspect.

Flowers was making a call from a pay phone at 3258

West Flournoy, just two blocks away from the scene of

the shooting. Flowers volunteered to the officers that the

men they were looking for could be found in the second-floor

apartment at that same address. Kulbida, along with

Detective Wayne Gulliford and Officer Robert Gomez,

entered the Flournoy apartment approximately thirty

minutes after the shooting was reported. Inside, they

found McFowler and Trenton Byndum, among other

individuals. McFowler was lying in bed, wearing only

blue jeans. Byndum was in the living room, wearing striped

blue jeans, a sleeveless blue top, white socks, and no shoes.

Gulliford spotted blood on Byndum’s right sock. On the

floor next to Byndum were a beige trench coat, a pair of

Nike Air Flight athletic shoes, and a Payless shopping

bag containing other items of clothing. Among the clothes

found in the bag were a pair of red and white jogging pants,

a shirt, and a jogging jacket, all stained with what ap-

peared to be blood. Byndum and McFowler were placed

under arrest.

6 No. 03-1162

During a subsequent search of the apartment, Detective

Gregory Baiocchi discovered a black and white Converse

athletic shoe for a right foot in the apartment’s oven. The

shoe had what appeared to be blood spots on it. Baiocchi

recovered what appeared to be that shoe’s mate in the

Escort parked in front of the crime scene. Both shoes were

submitted to a laboratory for testing, which confirmed

that human blood was present on both shoes. The blood

found on the left shoe was Type B; the right shoe contained

an insufficient quantity of blood for typing. At trial,

McFowler was asked to try the shoes on, and the shoes fit

him. They also fit his lawyer. Logan’s blood type apparently

was Type B. (Type B blood was recovered from the crime

scene.)

Also discovered at the Flournoy apartment (secreted

behind bricks in the rear stairwell of the basement) were

a Ruger Security Six revolver with two live .38-caliber

rounds and four spent casings of the same caliber, as

well as a Westernfield .20-gauge shotgun with two live

rounds. The record before us does not include any ballistics

evidence tying either of these weapons to the shooting. It

is undisputed, however, that Logan was shot with a re-

volver rather than a shotgun.

The hands of both McFowler and Byndum were tested

for gunshot residue. The results for Byndum were posi-

tive and thus consistent with Byndum having recently

handled or been in close proximity with a discharged

firearm. The results for McFowler reflected high levels of

each of the heavy metals associated with firearm use—lead,

barium, and antimony—but because the control swab used

in the test reflected an elevated level of barium (suggest-

ing contamination), the trace evidence analyst could not

confirm that McFowler, like Byndum, had been in close

proximity to a recently discharged firearm.

A bloody footprint was found on the first-floor landing at

the scene of the shooting. The parties stipulated that an

No. 03-1162 7

expert in shoe print comparison, if called to testify, would

opine that a photograph of the footprint was of the same

type, size, and style as the pair of Nike Air Flight athletic

shoes observed next to Byndum in the Flournoy apart-

ment, but the expert could not say with a reasonable de-

gree of scientific certainty that those shoes had, in fact,

made the footprint. Although the shoes bore what ap-

peared to be blood stains, they apparently were never

tested to confirm the presence of blood or the blood type.

On the day of his arrest, McFowler made a number of

statements to Detective Baiocchi, which the detective later

recounted at trial. Baiocchi testified that McFowler told

him he had gone to the Flournoy apartment the previous

evening with a friend and that he had remained there

until the police arrived and arrested him the following

day. He also indicated that Byndum was his cousin. He

had telephoned Byndum earlier that day to let him know

where he was, and Byndum had subsequently joined him

at the Flournoy apartment. Baiocchi testified that he did

not see a telephone in the Flournoy apartment.

At approximately 5:30 p.m. on the day of the shooting,

Meredith viewed a six-man lineup at the police station.

That lineup included both McFowler and Byndum. At

trial, on direct examination, Meredith testified that she

told police at the lineup “[t]hat the second person from the

end looked like the one who was in my house.” Tr. G25. The

prosecutor then showed Meredith a photograph of the

lineup and asked her to circle the individual that she had

identified as the man she saw in her apartment with the

shotgun. Meredith circled McFowler, although as it turned

out, he was not the second person from either end of the

lineup as displayed in the photograph. She also proceeded

to identify McFowler in court as the man she had seen.

Tr. G28-29. Additionally, when shown the shotgun that had

been found at the Flournoy address, Meredith indicated

“[t]hat’s the shotgun that I saw” in McFowler’s hand. Tr.

8 No. 03-1162

G29-30. On cross-examination, she confirmed that it “looks

just like the gun that I saw.” Tr. G33.

Detective P. Foley conducted the lineup that Meredith

viewed. The parties stipulated that if called to the wit-

ness stand, Detective Foley would testify that Meredith

had identified Byndum, not McFowler, as the man she

had seen with the shotgun. Foley also would have testi-

fied that when he spoke with Meredith after the shooting,

she indicated to him that she previously had seen the man

with the shotgun in her neighborhood.

On cross-examination, defense counsel asked Meredith

whether, at the lineup, she had actually identified a

man wearing striped pants and a sleeveless blue t-shirt

(Byndum). In response, Meredith indicated that she had

“picked out both.” Tr. G35. Meredith acknowledged, how-

ever, that in the photograph of the lineup, neither Mc-

Fowler nor Byndum was the second person from either

end of the lineup. Meredith recalled having spoken with

Detective Foley after the shooting, but she did not recall

telling him that she had seen the man with the shotgun

before around the neighborhood. Indeed, she testified that

she had never seen McFowler before the date of the inci-

dent.1

1

We do not know what to make of the following exchange

between Meredith and McFowler’s counsel at the conclusion of

cross-examination:

Q. Now, when you viewed this lineup, you told police officers

who you thought was in your apartment, is that correct?

A. Right.

Q. And you made it clear to them who was in your apart-

ment, isn’t that correct?

A. Hmm, hmm.

(continued...)

No. 03-1162 9

On redirect, the State brought Byndum into the court-

room. Byndum had pleaded guilty to the murder of Logan

prior to trial and was ultimately sentenced to a thirty-year

prison term. The State had called Byndum as its first

witness against McFowler; however, Byndum had invoked

his Fifth Amendment right not to incriminate himself

and had refused to answer any of the questions put to

him about the shooting. (The trial court had found him

guilty of criminal contempt of court and ordered him to

serve a six-month prison term consecutive to the thirty-

year term for murder.) With both Byndum and McFowler

side-by-side in the courtroom, the State asked Meredith

which of the two men she had seen with a shotgun on the

1

(...continued)

Q. And it’s your testimony here today that you identified to

members of the Chicago Police Department the individ-

ual you circled?

A. Hmm, hmm.

Q. And identified as Mr. McFowler the other individual on

the opposite end of this photograph, in the striped pants,

is that correct?

A. Yes.

Tr. G36-37. On the one hand, it appears from this exchange that

Meredith was confirming that it was McFowler whom she had

identified at the lineup as the person she saw in her apartment.

On the other hand, counsel’s final question, regarding “the other

individual on the opposite end of this photograph, in the striped

pants,” appears to have been a reference to Byndum; and we do

not understand how Meredith could have identified that individ-

ual “as Mr. McFowler.” Perhaps McFowler’s counsel became

confused in posing the question: he may have intended to ask

whether Meredith had identified the individual in striped pants

in addition to Mr. McFowler; and perhaps that is what Meredith

understood him to be asking when she answered “Yes.” Alterna-

tively, the transcription may be inaccurate. We simply do not

know.

10 No. 03-1162

day of the shooting. Meredith indicated that she had

seen McFowler. Tr. G38. She also acknowledged, contrary

to her earlier testimony, that the person she had seen in

her apartment was not the second person from either end

of the lineup as depicted in the photograph she was shown.

Tr. G39-40.

On re-cross examination, McFowler’s attorney asked

Meredith how long a glimpse she had gotten of the person

in her apartment. Meredith answered, “Maybe just a few

minutes.” Tr. G40.

After hearing the evidence, the trial court (Hon. Thomas

A. Hett) convicted McFowler of first degree murder. In the

course of his ruling, Judge Hett made the following re-

marks about Meredith’s identification testimony:

Now, if I am not mistaken Miss Meredith testified that,

here in court she testified Mr. McFowler was the one

that she saw in the apartment with the gun . . . the

shotgun. She also testified that in the—that she had

a photo array, and she said that this defendant’s pic-

ture was the, like the picture of the person who was

in the apartment and that she also identified the

defendant in a lineup.

That portion of [her testimony], the latter part is

impeached by Foley who[se stipulated testimony] said

that she only identifies Trenton Byndum.

Tr. K52-53. But the judge went on to credit her in-court

identification of McFowler (Tr. K56), and based on that

identification along with the other circumstantial evidence

placing McFowler at the scene of the shooting, concluded

that he was guilty:

The defendant is identified by Miss Meredith. He has

his prints on the car outside of the house. There are

shoes that fit him partly in the car and partly hidden.

He is found with a person whose clothing and shoes

apparently are covered with blood.

No. 03-1162 11

Both he and the person who he is with are identified

as having been in that apartment when the shooting

took place.

Sure looks to me like proof beyond a reasonable doubt,

if not [of] the actual murder then being the accomplice.

Miss Meredith testified that [there were] two sets

of shootings in the apartment and we do note that

the victim was killed and [Percell Swinney] was shot

so I believe that the State has proven its case beyond

a reasonable doubt the crime of murder and the de-

fendant is found guilty thereof.

Tr. K56-57. McFowler subsequently filed a motion for a

new trial, which the court denied. At sentencing, the

State asked the judge to impose the death penalty, but

the judge demurred, concluding that McFowler was ineli-

gible in the absence of evidence that he had fired the

gun used to kill Logan. Tr. L9. Judge Hett took the op-

portunity to reiterate, however, that the evidence was

sufficient to hold McFowler criminally culpable for the

murder under an accountability theory:

There is a wealth of circumstantial evidence. There’s

an identification process. So, I’m convinced beyond a

reasonable doubt that Mr. McFowler was present

with Mr. Byn[d]um in that house, and that as a re-

sult of that presence, that man was killed. And there

was an obvious intention to kill. It wasn’t something

that was a happenstance.

I have determined also from that evidence that it is

apparent, unless they switched guns, and it wasn’t

apparent that that’s the case, that Mr. McFowler

did not pull the trigger. Nevertheless, he is accountable

for what Mr. Byn[d]um did.

Tr. L11-12. The judge went on to sentence McFowler to a

prison term of forty years.

12 No. 03-1162

The Illinois Appellate Court affirmed McFowler’s con-

viction, concluding in relevant part that a rational trier

of fact could find him guilty beyond a reasonable doubt.

People v. McFowler, No. 1-92-2176, 697 N.E.2d 16, Order

at 31-38 (Ill. App. Ct. Sept. 29, 1995) (unpublished) (“App.

Ct. Order”). The court found Meredith’s identification

of McFowler was sufficiently reliable to place McFowler

at the scene of the murder with a shotgun in his hand.

Meredith testified that she had identified McFowler in

a lineup just six hours after the shooting, and her testimony

established that at the time of the shooting, she had seen

him at a distance of sixteen feet, although the court

“greet[ed] with some skepticism her further testimony

that she was able to maintain her view of him for perhaps

as long as a few minutes.” App. Ct. Order at 33.

The court acknowledged that Meredith’s testimony

reflected some confusion as to where McFowler had been

positioned in the lineup and that it conflicted with the

stipulation that Detective Foley would have testified that

she had identified Byndum and not McFowler. Id. “How-

ever, any such confusion or apparently conflicting evi-

dence would not necessarily mandate that the circuit

court totally disregard her lineup identification.” Id.

Meredith, the court noted, ultimately testified that she

had identified both Byndum and McFowler in the lineup.

Moreover, the circuit court itself had acknowledged that

Detective Foley’s recollection about the lineup tended to

impeach Meredith’s testimony on that point.

It was not clear to the appellate court whether the

trial court, in view of the conflict, had given Meredith’s

testimony about the lineup diminished weight or had

disregarded it altogether; but the latter possibility would

not leave McFowler’s conviction without adequate eviden-

tiary support:

Even if Meredith’s lineup identification were given

no weight whatsoever, there still would have been

No. 03-1162 13

credible eyewitness testimony in this case. Meredith

made an unwavering in-court identification of the

defendant. The strength of this identification was only

reinforced when Meredith, during redirect examina-

tion, viewed both the defendant and Trenton Bynd[u]m

together in court and reaffirmed that the defendant

was in fact the person she saw trip over the victim on

October 9, 1989.

Id. at 34. The court also noted that there was no evi-

dence Meredith had ever indicated any uncertainty in

identifying McFowler and that her in-court description

of the intruder as a short, African-American male was

not challenged and was consistent with McFowler’s ap-

pearance. Id. at 36. (The presentence report for McFowler

indicated that he was African American and five feet, six

inches in height. Id. n. 2.)

The court also emphasized that in addition to Meredith’s

identification testimony, the record reflected “substantial

corroborative testimonial and physical evidence” that linked

McFowler to the crime. Id. at 36. Meredith had identified

the shotgun that had been recovered (along with the

revolver) from the Flournoy building as the one she had

seen in McFowler’s hand on the day of the shooting. The

keys to a Ford Escort parked directly across the street

from the scene of the crime had been found in the Lexing-

ton building; witnesses had told the police that the assail-

ants had attempted to flee the scene in that vehicle; and

McFowler’s prints (along with Byndum’s ) were found on

the exterior of that car. The Converse shoe found in that

car appeared to be the mate of the one found in the oven of

the Flournoy apartment. Both of those shoes were stained

with blood, and testing revealed that the blood on the left

shoe was type B, which apparently was the same blood

type as the victim’s. The shoes also fit McFowler. The

pair of Nike shoes discovered in the Flournoy apartment

also bore what appeared to be blood stains, and the pattern

14 No. 03-1162

of those shoes was consistent with a bloody footprint

found at the crime scene.

Thus the single Converse shoe found inside the oven,

which apparently matched the Converse shoe found

in the Ford Escort, and the Nike shoes found inside the

apartment, corroborated the inference that Bynd[u]m

and the defendant, who were both barefoot at the time

of their arrest just thirty minutes after the shooting,

were the individuals who wore those shoes at the

crime scene.

Id. at 38. The “cumulative impact” of this evidence was,

in the court’s view, sufficient to support McFowler’s con-

viction notwithstanding the weaknesses in Meredith’s

identification testimony. Id. The Illinois Supreme Court

denied McFowler’s petition for leave to appeal. People

v. McFowler, No. 80488, 664 N.E.2d 645 (Ill. April 3,

1996) (unpublished).

McFowler subsequently filed a petition for a writ of

habeas corpus pursuant to 28 U.S.C. § 2254. Upon review

of the parties’ briefs and the record, the district court

granted the petition. McFowler, 2003 WL 76861. The court

proceeded from the premise that McFowler could be

liable for Logan’s murder under an accountability theory

if, in fact, he was the man with a shotgun that Meredith

had seen next to (and tripping over) Logan’s body. Id. at

*6. (The court separately considered whether McFowler

could have been convicted as a principal, but concluded

the facts would at most support McFowler’s conviction

under an accountability theory. Id. at *11.) But in the

court’s view, the evidence was insufficient to establish

that McFowler was the intruder that Meredith had seen.

First, “[n]o rational trier of fact could ascribe any

weight to Meredith’s testimony concerning her identifica-

tion of McFowler from the lineup on the day of the crime.”

Id. at *7. The Illinois Appellate Court seemed to think

No. 03-1162 15

that the trier of fact could have given the lineup at least

some weight, because when confronted with Foley’s stipu-

lated testimony that she had identified Byndum at the

lineup, Meredith said that she had identified both Byndum

and McFowler. But Meredith testified that she had

only seen one assailant, and Byndum and McFowler did

not look alike. So it was “nonsensical” to suppose that

Meredith could have identified both of them at the line-

up. Id.

On the other hand, the lineup could not simply be dis-

regarded in assessing the balance of Meredith’s identifica-

tion testimony, as the Illinois Appellate Court had sup-

posed. Id. Rather, the evidence underlying McFowler’s

conviction must be viewed as a whole. Although Meredith

had identified McFowler in the courtroom, the fact that

she had evidently identified someone else (Byndum) either

in addition to or instead of him in the context of a non-

suggestive lineup conducted hours after the crime was

committed cast doubt on the value of Meredith’s in-court

identification. Id. The court noted that the circumstances

relevant to the reliability of the identifications in this

case suggested strongly that the lineup was the more

reliable of the two identifications that Meredith had made:

the courtroom identification was made under suggestive

circumstances (McFowler had been seated at table with

his counsel); even when Byndum was summoned into the

courtroom during Meredith’s redirect examination, she

was called upon to make an identification from just two

people as opposed to the six she had viewed in the lineup;

and a good deal of time had passed before Meredith made

her in-court identification in 1992. Id. at *8-*9. “Given

Meredith’s same-day identification of Byndum, the sug-

gestiveness of the in-court identification procedure, and

the very long time delay between the two, it was objec-

tively unreasonable for the Illinois Appellate Court to

find credible Meredith’s albeit ‘unwavering,’ in-court iden-

tification of McFowler.” Id. at *9.

16 No. 03-1162

One could infer from the other record evidence that

McFowler was present at the scene of the murder, the

court acknowledged (id. at *9-*10), but that evidence

was insufficient to support his conviction. In order to

prove McFowler’s guilt under an accountability theory,

the State had to establish that McFowler, either before

or during the commission of the crime, and with the in-

tent to promote or facilitate that crime, in some way

solicited, aided, abetted, agreed or attempted to aid some-

one else in the planning or commission of the crime. Id.

at *11, quoting 720 Ill. Comp. Stat. Ann. 5/5-2(c). In this

case, there was no evidence that the perpetrators had

planned the crime, let alone that McFowler was aware of

that plan. Id. Beyond McFowler’s presence at the scene

of the crime and his flight therefrom, the most that the

evidence established was his presence in the same apart-

ment as Byndum a half hour after the murder and his

failure to report the crime. Id. at *12. In the district

court’s view, this was not enough to show that McFowler

took some act to promote or facilitate the commission of

the crime or that he intended to do so. Id.

The district court therefore granted McFowler’s re-

quest for a writ of habeas corpus and ordered his release

within twenty days. Id. at *13. On the State’s request, the

district court stayed its order pending resolution of the

State’s appeal. R. 40.

II.

“The Antiterrorism and Effective Death Penalty Act of

1996 modified a federal habeas court’s role in reviewing

state prisoner applications in order to prevent federal

habeas ‘retrials’ and to ensure that state-court convictions

are given effect to the extent possible under law.” Bell v.

Cone, supra, 535 U.S. at 693, 122 S. Ct. at 1849, citing

No. 03-1162 17

Williams v. Taylor, 529 U.S. 362, 403-04, 120 S. Ct. 1495,

1518 (2000). Under the AEDPA, in order to obtain habeas

relief, a petitioner must establish that the proceedings

in state court resulted in a decision (1) “that was con-

trary to, or involved an unreasonable application of, clearly

established Federal law, as determined by the Supreme

Court of the United States,” or (2) “that was based on

an unreasonable determination of the facts in light of

the evidence presented in the State court proceeding.” 28

U.S.C. § 2254(d). The relevant decision, for purposes of

this assessment, is the decision of the last state court

to rule on the merits of the petitioner’s claim—here, the

order of the Illinois Appellate Court. E.g., Schultz v. Page,

313 F.3d 1010, 1015 (7th Cir. 2002), cert. denied, 123 S. Ct.

2220 (2003).

There is no contention that the Appellate Court’s deci-

sion is “contrary to” clearly established law. The court

acknowledged that due process requires the State to

establish beyond a reasonable doubt that a defendant

committed each element of the charged offense. App. Ct.

Order at 31, citing In re Winship, 397 U.S. 358, 361-63, 90

S. Ct. 1068, 1071-72 (1970). The court also recognized

that, under Jackson v. Virginia, supra, 443 U.S. at 319, 99

S. Ct. at 2789, a court examining the sufficiency of the

evidence underlying a defendant’s conviction must con-

strue that evidence in the light most favorable to the

State and determine whether any rational trier of fact

could have found the elements of the crime beyond a

reasonable doubt. App. Ct. Order at 31-32. Moreover, we

note that in evaluating the reliability and sufficiency of

Meredith’s identification testimony as the key evidence

supporting McFowler’s conviction, the court looked to the

same factors that the Supreme Court identified as pertinent

in Neil v. Biggers, 409 U.S. 188, 199, 93 S. Ct. 375, 382

(1972). See App. Ct. Order at 32.

18 No. 03-1162

The question posed by McFowler’s petition is whether the

Illinois Appellate Court’s decision amounts to an unrea-

sonable application of the Jackson sufficiency standard. “A

state-court decision that correctly identifies the govern-

ing legal rule but applies it unreasonably to the facts

of a particular prisoner’s case certainly would qualify

as a decision ‘involv[ing] an unreasonable application

of . . . clearly established Federal law.’ ” Williams, 529 U.S.

at 407-08, 120 S. Ct. at 1520. “Unreasonable” means

something more than “mistaken,” however. Woodford v.

Visciotti, 537 U.S. 19, 25, 27, 123 S. Ct. 357, 360, 361 (2002)

(per curiam); Williams, 529 U.S. at 410, 120 S. Ct. at 1522;

Hardaway v. Young, 302 F.3d 757, 762 (7th Cir. 2002), cert.

denied, 123 S. Ct. 1802 (2003). A state court decision is

unreasonable for purposes of section 2254(d)(1) if its

application of Supreme Court precedent “l[ies] well outside

the boundaries of permissible differences of opinion.” Id.

at 762, citing Williams, 529 U.S. at 411, 120 S. Ct. at 1522;

see also Visciotti, 123 S. Ct. at 361 (“[t]he federal habeas

scheme . . . authorizes federal-court intervention only

when a state-court decision is objectively unreasonable”).

Within this framework, the precise legal question that

we must answer is the one that the district court itself

posed: “Was it objectively unreasonable for the Illinois

Appellate Court to conclude that any rational trier of fact,

after viewing the evidence in the light most favorable to

the state, could have found the essential elements of

first degree murder beyond a reasonable doubt.” 2003 WL

76861, at *5.

It is undisputed that McFowler was convicted of

Logan’s murder not as a principal but on an accountabil-

ity theory. As we have noted, neither the trial judge (in

finding McFowler guilty) nor the Illinois Appellate Court

(in affirming his conviction) stated this expressly. Neither

court, for that matter, identified the elements that would

have to be established in order to find McFowler guilty

No. 03-1162 19

under either theory. However, when he sentenced Mc-

Fowler, Judge Hett remarked that “Mr. McFowler did

not pull the trigger. Nevertheless, he is accountable for

what Mr. Byn[d]um did.” Tr. L12. Judge Gottschall con-

sidered whether the evidence would have supported

McFowler’s conviction as a principal and concluded that

it would not: Logan was killed with a revolver; Meredith

testified that she saw McFowler holding a shotgun, not

a revolver; there was no evidence that the shotgun had

been fired; the inconclusive results of the gunshot residue

test on McFowler were consistent with the possibility

that he had handled the revolver, but shed no light on

whether he had fired the gun or merely handled it after

the shooting; and there were at least two and possibly

three intruders present in the apartment at the time of

the murder, rendering it impossible to conclude beyond

a reasonable doubt that McFowler was the one who fired

the shot that killed Logan. 2003 WL 76861, at *11. For

its part, the State does not suggest that McFowler could

have been convicted as a principal. On the contrary, it

asserts that McFowler was convicted on an accountability

theory (e.g., State’s Opening Brief at 10) and it defends his

conviction on that basis alone.

As we have noted, the Illinois accountability statute

provides that an individual is criminally liable for an

offense committed by another person “when . . . [e]ither

before or during the commission of an offense, and with

the intent to promote or facilitate such commission, he

solicits, aids, abets, agrees or attempts to aid, such other

person in the planning or commission of the offense.” 720

Ill. Comp. Stat. Ann. 5/5-2(c). The pertinent statutory

terms here are “aids” and “abets,” as there is no evidence

that McFowler solicited Logan’s murder, that he agreed to

aid anyone in the planning or commission of the crime, or

that he participated in the planning of the offense. As

Judge Gottschall recognized, the defendant’s mere pres-

20 No. 03-1162

ence at the scene of the crime is insufficient to establish

that a defendant aided or abetted the commission of the

offense, even when coupled with his knowledge of the

crime and his flight from the crime scene. People v. Wil-

liams, supra, 739 N.E.2d at 472; People v. Shaw, 713

N.E.2d 1161, 1173 (Ill. 1999); see also United States v.

Johnson, 612 F.2d 305, 308 (7th Cir. 1980) (applying Illi-

nois law). The evidence must additionally establish the

defendant’s intent to facilitate or otherwise promote the

commission of the offense, either by showing that the

defendant shared the principal’s criminal intent or that

there was a common criminal design. People v. Perez, 725

N.E.2d 1258, 1264-65 (Ill. 2000); People v. Stanciel, supra,

606 N.E.2d at 1210. Of course, “[i]ntent may be inferred

from the character of the defendant’s acts as well as the

circumstances surrounding the commission of the offense.”

Perez, 725 N.E.2d at1265, citing Stanciel, 606 N.E.2d

at 1210.

Meredith’s testimony unquestionably was essential to

the finding that McFowler aided or abetted Logan’s mur-

der. Although abundant circumstantial evidence placed

McFowler at the scene of the crime, it was Meredith’s

testimony and hers alone that placed him next to Logan’s

body with a shotgun in his hand. The shotgun was not

the murder weapon, of course; but we shall assume (as

Judge Gottschall did) that McFowler’s presence at the scene

of the crime with a firearm, next to Logan’s body, just

after Logan was shot, would suffice to establish his complic-

ity in the murder.

The dispositive issue, then, is the reliability of Meredith’s

testimony. After describing the man she had seen trip

over Logan’s body with a shotgun in his hand, Meredith

indicated that it was McFowler whom she had picked out

of the lineup on the day of the shooting. Twice during

her testimony—first on direct and then again on redirect,

when Byndum was brought into the courtroom to stand

No. 03-1162 21

beside McFowler—Meredith identified McFowler as the

person she had seen. However, Detective Foley’s stipulated

testimony was that Meredith had identified Byndum in

the lineup, not McFowler. When confronted with Foley’s

conflicting testimony on cross-examination, Meredith

testified that she had picked “both” Byndum and McFowler.

It is Meredith’s puzzling testimony that she picked two

individuals as the single person that she saw at the

scene of the crime which calls into doubt the reliability

of her identification testimony.

We begin our analysis by noting that, so far as the record

reveals, the lineup that Meredith viewed on the day of

the murder was untainted by any suggestive or other-

wise inappropriate circumstance or procedure. This is in

contrast to each of the Supreme Court’s decisions dealing

with the reliability of eyewitness identification testimony.

Manson v. Brathwaite, 432 U.S. 98, 97 S. Ct. 2243 (1977);

Neil v. Biggers, supra, 409 U.S. 188, 93 S. Ct. 375; Coleman

v. Alabama, 399 U.S. 1, 90 S. Ct. 1999 (1970); Foster v.

California, 394 U.S. 440, 89 S. Ct. 1127 (1969); Simmons v.

United States, 390 U.S. 377, 88 S. Ct. 967 (1968); Stovall v.

Denno, 388 U.S. 293, 87 S. Ct. 1967 (1967); Gilbert v.

California, 388 U.S. 263, 87 S. Ct. 1951 (1967); United

States v. Wade, supra, 388 U.S. 218, 87 S. Ct. 1926. In those

cases, the witness’s in-court identification was preceded

by a lineup or other identification made under suggestive

conditions. However, the factors on which the Court has

focused in that context remain relevant even when a

witness has made an identification untainted by sug-

gestive identification procedures. See Kennaugh v. Miller,

289 F.3d 36, 46-47 (2d Cir.) (collecting cases), cert. denied,

537 U.S. 909, 123 S. Ct. 251 (2002). “[R]eliability is the

linchpin in determining the admissibility of identification

testimony . . . .” Brathwaite, 432 U.S. at 114, 97 S. Ct. at

2253. And although here we are not concerned with the

admissibility of Meredith’s identification of McFowler

(McFowler’s counsel filed a motion to suppress the results

22 No. 03-1162

of the lineup but later withdrew the motion), the reliabil-

ity of her identification (both at the lineup and at trial) is

of prime importance to the sufficiency of the evidence

underlying McFowler’s conviction.

We therefore must assess the reliability of Meredith’s

identification under the “totality of the circumstances.”

Biggers, 409 U.S. at 199, 93 S. Ct. at 382. The factors that

bear on the likelihood that the witness has identified the

wrong person are “the opportunity of the witness to view

the criminal at the time of the crime, the witness’ degree

of attention, the accuracy of the witness’ prior description

of the criminal, the level of certainty demonstrated by

the witness at the confrontation, and the length of time

between the crime and the confrontation.” Ibid.

As the Illinois Appellate Court pointed out, one can

readily infer from Meredith’s testimony that she had a

sufficient opportunity to observe the individual with the

shotgun. App. Court Order at 33. The man was standing

sixteen feet away from her, and although his face was

not turned toward her at first, she was able to get a good

look at it as he stumbled over Logan’s body. Id. Meredith

suggested that she may have had the intruder in her sight

for as long as a few minutes. That seems quite doubtful

given her testimony that she slammed the bedroom door

shut and hid in the closet with her children upon seeing

Logan’s body and the armed man next to it. Tr. G20-23. The

Illinois Appellate Court itself viewed this testimony with

“some skepticism.” App. Ct. Order at 33. Nonetheless, the

record supplies us with no reason to doubt that Meredith

had an ample opportunity to view the intruder. And

although the record is silent as to the degree of attention

with which Meredith viewed that individual, she certainly

was not a casual bystander, and it is fair to assume that

she looked at the man with the shotgun with a high degree

of attention. The third Biggers factor does not apply

here. There is no evidence that Meredith ever supplied

the police with a description of the intruder before view-

No. 03-1162 23

ing the lineup.2 The fourth factor yields conflicting

signals: the record sheds no light on the degree of certainty

with which Meredith identified McFowler as the intruder

at the lineup, but her later testimony that she picked

“both” McFowler and Byndum may suggest uncertainty

(see n. 4, infra); as for her in-court identification, the record

does not affirmatively indicate that Meredith identified

McFowler with confidence, but on the other hand there

are no indicia of hesitation or doubt, and Meredith consis-

tently identified McFowler as the intruder she saw. The

final Biggers factor—the passage of time between the

crime and the confrontation—weighs differently depend-

ing on whether one is addressing the lineup or Meredith’s

in-court identification of McFowler. The fact that the line-

up was conducted within six hours of the shooting

weighs rather strongly in favor of reliability. See Chavis v.

Henderson, 638 F.2d 534, 537 (2d Cir. 1980) (“ ‘immediacy

makes it much more likely that the witness will have a

fresh recollection of the appearance of the suspect and

hence that the identification will be accurate’ ”), quoting

United States ex rel. Springle v. Follette, 435 F.2d 1380,

1383 (2d Cir. 1970). By contrast, the passage of twenty-

nine months before the trial occurred detracts significantly

from the weight to be given that identification. See Biggers,

409 U.S. at 201, 93 S. Ct. at 383 (lapse of seven months

between crime and confrontation “would be a seriously

negative factor in most cases”).

What the Illinois Appellate Court did not consider, and

what must be considered given the divergent testimony

about whom Meredith identified at the lineup, is which

of the two identifications is the more reliable; and on that

2

Although the record indicates that police officers spoke

with witnesses at the scene of the shooting and obtained descrip-

tions of the suspects from them, it does not reveal whether

Meredith supplied the police with a description of the man

she saw next to Logan’s body and, if so, what her description was.

24 No. 03-1162

point, the circumstances favor the lineup over the in-court

identification, as Judge Gottschall pointed out. The lineup

was conducted within hours of the crime, whereas the

trial occurred more than two years later. The lineup called

for Meredith to choose from among six individuals, whereas

the suggestive circumstances of the courtroom would have

focused her attention on the (single) defendant. See United

States v. Matthews, 20 F.3d 538, 547 (2d Cir. 1994) (not-

ing that “the circumstances at trial may themselves be

tantamount to a showup”). True, on redirect examination,

Byndum was brought into the courtroom, and Meredith

was asked whether he or McFowler was the intruder that

she saw on the day of the murder. By then, of course, she

had already identified McFowler once in court and natu-

rally would have been inclined to reaffirm her identifica-

tion. That point aside, choosing from between two individ-

uals (one of them the defendant) in court is necessarily

a less reliable identification than choosing from among

six individuals in a properly conducted lineup. We hasten

to add that this is not a case in which the record discloses

some additional fact that would tend to bolster the wit-

ness’s courtroom identification. See id. (noting types of

measures, e.g., seating defendant somewhere other than

at counsel table, that can mitigate suggestiveness of in-

court identification).3

Although the lineup is the more reliable of the two

identifications, the evidence is hopelessly inconsistent as

to whom Meredith actually picked out of the lineup. Had

Meredith stood by her initial testimony that she picked

McFowler out of the lineup, then the factfinder would

3

Our opinion should not be read to suggest that the defendant

has a constitutional right to courtroom identification procedures

that would minimize the risk of suggestion. The suggestive-

ness of an in-court identification typically goes to the weight

of that identification rather than to its admissibility as evidence

of the defendant’s guilt. See Matthews, 20 F.3d at 547.

No. 03-1162 25

have been presented with a straightforward credibility

choice between her testimony and the stipulated testimony

of Detective Foley that she picked Byndum. The trial judge

would have been free to disbelieve Foley, for the testimony

of law enforcement officials is entitled to no greater weight

than the testimony of any other witness (see, e.g., United

States v. Martin, 507 F.2d 428, 432-33 (7th Cir. 1974)), and

the parties’ stipulation as to what a witness would testify

does not obligate the trier of fact to credit the witness’s

would-be testimony (e.g., Tucker v. Brady, 305 F.2d 550, 552

(9th Cir. 1962)). But instead, on redirect examination,

Meredith indicated that she picked “both” Byndum and

McFowler at the lineup. As the record stands, that an-

swer is nonsensical.

In only one circumstance would Meredith’s answer

both make sense and give the trier of fact reason to trust

her ability to identify the man with the shotgun, and that

is if she saw two intruders rather than one. It is this

scenario that the State presses upon us with vigor and it

is one, we acknowledge, that is possible in the abstract.

The evidence does indicate that there were two if not

three people involved in the crime. Moreover, Byndum’s

guilty plea reveals that he was one of them. Thus, if

Meredith saw two people in her apartment, she could have

identified McFowler as the man with the shotgun and

Byndum as the second intruder. This would have been

entirely consistent with her courtroom identification of

McFowler and her initial testimony about previously hav-

ing identified McFowler at the lineup as the man with

the shotgun. The State thus urges us to indulge the infer-

ence that Meredith saw a second intruder in addition to

the man with the shotgun.4

4

Another possibility is that when Meredith viewed the lineup,

she was unable to decide whether Byndum or McFowler was

(continued...)

26 No. 03-1162

However, there is not a shred of evidence that Meredith

did see more than one of the intruders. Indeed, the

clear import of the testimony is that Meredith only saw

one person. Meredith’s testimony about the shooting

indicated that she saw only one intruder (the man with

the shotgun) and heard a second (the voice which said, “if

you are going to shoot him; shoot him” (Tr. G22)).5 Her

testimony about the lineup likewise indicates that she

was identifying one person and one person only—the

man with the shotgun.6 Foley’s stipulated testimony too

4

(...continued)

the man she saw with the shotgun and she picked “both” based on

her uncertainty. However, Meredith’s inability to distinguish

between the two men would do nothing to help the State’s case,

and (understandably) this is not a possibility that the State

pursues as an explanation for her testimony that she picked both

men. In any case, the evidence lends no support to this possibil-

ity. Meredith did not confess to experiencing any uncertainty on

viewing the lineup, nor does Foley’s stipulated testimony sug-

gest that she did. There is no evidence that McFowler and

Byndum looked alike (the record indicates that Byndum was

several inches taller than McFowler). Indeed, Meredith did not

have any trouble differentiating between the two when Byndum

was brought into court.

5

See Tr. G20 (Q. “Now, when Davion opened the door, what

happened? A. I saw somebody with a gun.”); G40 (Q. “About how

long did you get a glimpse of the person who was in your apart-

ment, his face? A. Maybe just a few minutes.”).

6

See, e.g., Tr. G25 (Q. “What did you say [to the police after

looking at the people in the lineup]? A. That the second per-

son from the end looked like the one who was in my house.”); G28

(Q. “Now, do you see in that photograph the person or persons

that you identified to the police officers that day? A. Yes. Q. And

which person is it that you identified in October of 1989? A. This

one right here. Q. Would you put a circle around the face of the

person that you say you identified on October of 1989? That

(continued...)

No. 03-1162 27

refers to the identification of a single person. The trier

of fact thus had no basis from which to conclude that

Meredith might have seen two people at the scene of

the crime, thus enabling her to have identified both

McFowler and Byndum.

We cannot say it was impossible for Meredith to have

seen two intruders; but the mere possibility that she did

is not sufficient to rehabilitate her testimony about the

lineup. The State is entitled to every reasonable inference

that may be drawn from the record, but to be reasonable

the inference must find at least some support in the facts.

See United States v. Lewis, 787 F.2d 1318, 1323 (9th

Cir. 1986) (“mere suspicion or speculation cannot be the

basis for creation of logical inferences”), amended in other

respects, 798 F.2d 1250 (9th Cir. 1986); United States v.

Brown, 763 F.2d 984, 990 (8th Cir. 1985) (“a conviction

based on evidence that requires speculation or mere

conjecture by the [factfinder] is invalid”). Such support

is lacking here. All of the evidence points to Meredith

having seen one and only one intruder. Indeed, had she

seen two, surely the State would have elicited that infor-

mation, particularly after Meredith announced on the

witness stand that she had picked “both” Byndum and

McFowler from the lineup. As things stand, however, we

would have to venture beyond the record and into the

realm of speculation in order to suppose that Meredith

was identifying two different intruders when she iden-

tified “both” Byndum and McFowler. It is equally possible

that Meredith was confused or flummoxed, or that her

6

(...continued)

person you have circled, what is it that that person did that

caused you to identify him? A. I saw him with the shotgun.”); G37

(Q. And it’s your testimony here today that you identified to

members of the Chicago Police Department the individual you

circled? A. Hmm, hmm.”).

28 No. 03-1162

memory was faulty. The evidence does not permit us to

choose one of these possibilities over another.

Meredith’s own testimony thus rendered it impossible

for the factfinder to determine whom it was that she iden-

tified at the lineup. The Illinois Appellate Court recog-

nized the inconsistencies in the evidence as to Meredith’s

lineup identification (App. Ct. Order at 33), and as the

Appellate Court noted, it is difficult to tell whether the

trial court disregarded altogether the possibility that

Meredith had identified McFowler at the lineup or simply

gave Meredith’s (initial) testimony that she did decreased

weight (id.). The Appellate Court’s suggestion that the

trier of fact could have given her purported lineup iden-

tification of McFowler at least some weight ( id.) was

objectively unreasonable. Once Meredith testified that

she had identified “both” McFowler and Byndum at the

lineup, the trier of fact could not have found with any

degree of confidence that it was McFowler that Meredith

actually had identified. Whom Meredith identified at the

lineup is simply an unsolvable mystery.

This leaves Meredith’s in-court identification as the sole

evidentiary support for a finding that McFowler stood next

to Logan’s body with a shotgun in hand. The Illinois Ap-

pellate Court reasoned that “[e]ven if Meredith’s lineup

identification were given no weight whatsoever,” the

factfinder could still make this finding based on her

“unwavering in-court identification of the defendant” alone.

App. Ct. Order at 34. Had there never been a lineup,

we have little doubt that Meredith’s positive in-court

identification would have sufficed as proof of McFowler’s

culpable involvement in Logan’s murder. But a lineup did

take place, and Meredith made an identification at that

lineup. So what we must consider is whether Meredith’s

inconsistent testimony about the lineup casts such doubt

on her courtroom identification as to render the latter

insufficiently reliable to support McFowler’s conviction.

No. 03-1162 29

As a threshold matter, we agree with the district court

that Meredith’s in-court identification of McFowler cannot

be considered in isolation, apart from her testimony

about the lineup identification. 2003 WL 76861, at *7. For

all of the reasons we have discussed, the evidence as to

the lineup precludes any reliable determination as to

whom Meredith identified in the lineup. That does not

mean, however, that the lineup (and the testimony about

that lineup) should be disregarded as if it had never

occurred. Meredith made two identifications in this case,

one at the lineup and one in court. Whether her in-court

identification of McFowler was reliable enough for the

trier of fact to find that McFowler was the person she saw

in her home armed with a shotgun is a question that can

only be answered with reference to the lineup and the

reliability of that identification as well. See Kennaugh, 289

F.3d at 46 (witness’s inability to identify defendant in

prior lineup and several photo arrays “inevitably heightens

the risk that her in-court identification was induced by

the suggestiveness of the setting in which it occurred”).

As we have already discussed, the factors relevant to

the reliability of the two identifications point to the line-

up identification as the more reliable of the two. That

identification took place within hours of the crime, called

upon Meredith to choose from six individuals, and, so far

as the record reveals, was free of any circumstance that

would have made it suggestive. The later identification, on

the other hand, took place nearly two and one-half years

after the shooting and within the inherently suggestive

environs of a courtroom. The fact that Meredith reaffirmed

her identification of McFowler after seeing Byndum and

McFowler stand side by side adds little weight to the

strength of her identification. Byndum was not sum-

moned to the courtroom until after Meredith already

identified McFowler during her direct testimony, and

given the evident differences in their height alone, there

30 No. 03-1162

would have been no mixing the two up. Indeed, the fact

that Meredith apparently had no difficulty distinguish-

ing between the two men in court years after the crime

merely reinforces the mystery as to how she could have

chosen both of them from the lineup, when the event

was still fresh in her mind.

Of course, it is not unheard of for an eyewitness to fail

to identify the defendant in a lineup, to pick the wrong

person, or to express some ambivalence about her iden-

tification, only to later make a positive identification of

him in court. Often the apparent inconsistency is ex-

plained by such things as the witness’s emotional state,

her failure to view the lineup with sufficient care, or an

unexpected change in the defendant’s appearance be-

tween the time of the crime and the lineup. See, e.g., United

States ex rel. Kosik v. Napoli, 814 F.2d 1151, 1159 (7th Cir.

1987) (defendant had cut his hair and shaved his mus-

tache); Cole v. State, 588 N.E.2d 1316, 1317-18 (Ind. Ct.

App. 1992) (witness confused by defendant’s longer hair);

Commonwealth v. Hurd, 407 A.2d 418, 422 (Pa. Super. Ct.

1979) (witness did not stand close enough to lineup on

first occasion); cf. Taylor v. State, 501 S.E.2d 875, 876

(Ga. Ct. App. 1998) (witness unable to make in-court iden-

tification because her vision was poor, but was able to

identify him from photo array). So long as the record

indicates that the witness had a sufficient basis for iden-

tifying the defendant (e.g., an adequate opportunity to

observe the defendant at the time of the offense), her

inability to identify him prior to trial normally will not

detract from her in-court identification. E.g., United States

v. Matthews, 20 F.3d at 547-48 (lack of pretrial identifica-

tion did not undermine witnesses’ in-court identifications,

where their testimony was “sufficient to establish that

their identifications had an origin independent of their

viewing [defendant] in the courtroom and hence was

sufficient to meet the threshold of reliability needed to

No. 03-1162 31

permit them to attempt in-court identifications of the men

they had seen”); see also United States v. Davies, 768 F.2d

893, 904 (7th Cir. 1985) (“[g]enerally, the question of the

suggestiveness or credibility of the in-court identification

is to be resolved ultimately by the jury after the defendant

has had an opportunity to test the accuracy of an identifica-

tion through cross-examination”). By contrast, Meredith’s

initial inability to identify McFowler was not explained

by any such circumstance. Indeed, Meredith did not pro-

fess to have had any inability to make an identification,

or uncertainty about her ability, in viewing the lineup.

Only when she was confronted with the possibility that

she had picked Byndum rather than McFowler did she

say that she had picked both. Nothing in the record ex-

plains why at the lineup, on the very day of the offense,

Meredith could have picked two people as the one person

she saw holding the shotgun and then two years later

picked McFowler alone. Nothing, that is, except the inher-

ently suggestive environs of the courtroom. See Kennaugh,

289 F.3d at 46.

Indeed, Meredith’s testimony itself calls into doubt the

reliability of her identification. In testifying on cross-

examination that she identified both Byndum and Mc-

Fowler at the lineup, Meredith not only contradicted her

own initial testimony, but gave an answer that makes

no sense on the facts. Inconsistencies in a witness’s testi-

mony are not unusual either, and normally these are left

for the factfinder to assess. See, e.g., United States v.

Gutman, 725 F.2d 417, 421 (7th Cir. 1984) (trial court not

compelled to instruct jury to disregard testimony of men-

tally ill key witness notwithstanding witness’s inconsis-

tency and confession that he had lied; witness’s testimony

did not reflect “abnormal degree of internal inconsis-

tency” and “it is common for witnesses to change their

stories on the stand”). But Meredith’s belated assertion

that she identified both McFowler and Byndum at the

32 No. 03-1162

lineup is irreconcilable with the facts. Moreover, it re-

lates not to a collateral point but to the most material

aspect of her testimony. Cf. United States v. Spain, 536 F.2d

170, 173 (7th Cir. 1976) (“[e]ven if the jury found that

an agent had deliberately testified falsely on a collateral

matter, it could still accept the substance of his testimony

on the issues in the case”); United States v. Tropiano, 418

F.2d 1069, 1074 (2d Cir. 1969) (“[a] witness may be inac-

curate, contradictory and even untruthful in some re-

spects and yet be entirely credible in the essentials of his

testimony”). Meredith’s self-contradictory testimony casts

doubt on the value of her in-court identification, which

was the centerpiece of her testimony.

Other evidence corroborates McFowler’s presence at

the scene of the crime, but none of that evidence sup-

plies the proof necessary to establish his complicity in the

crime. Only Meredith’s testimony supplies that proof

by placing McFowler next to Logan’s body with a shotgun in

his hand. The balance of the evidence bolsters Meredith’s

identification of McFowler only in the limited sense that

it confirms the possibility that it was McFowler that she

saw. But Byndum was present at the scene of the crime

as well (as evidenced by both his guilty plea and the cir-

cumstantial evidence). Foley’s stipulated testimony that

Meredith had identified Byndum at the lineup as the

man with the shotgun, and Meredith’s own testimony

that she identified “both” Byndum and McFowler, render

it just as possible that it was Byndum that Meredith saw

with the shotgun in his hand.

The identity of the defendant as a perpetrator of the

crime is one of essential elements of the offense that

must be proved beyond a reasonable doubt. United States

v. Weed, 689 F.2d 752, 754 (7th Cir. 1982); People v.

Dante, 221 N.E.2d 409, 410 (Ill. 1966); People v. Daniels,

770 N.E.2d 1143, 1152 (Ill. App. Ct. 2002). Because

Meredith’s identification testimony alone addresses this

No. 03-1162 33

element without any corroboration, a reasonable doubt

about her identification would necessitate McFowler’s

acquittal. See United States v. Jackson, 509 F.2d 499, 507

(D.C. Cir. 1974) (“[t]he problem of witness-competence is

accentuated in cases wherein the guilt of the accused is

sought to be rested on an uncorroborated identification by

a single witness”); see also, e.g., Commonwealth v. Wiley,

432 A.2d 220 (Pa. Super. Ct. 1981) (finding witness’s tenta-

tive identification of defendant insufficient to support

conviction where no other evidence corroborated iden-

tification).

For all of these reasons, were we reviewing McFowler’s

conviction on direct appeal, we might have reversed on the

ground that no factfinder could find beyond a reasonable

doubt that it was McFowler whom Meredith saw next to

Logan’s body with a shotgun in his hand. Meredith’s self-

contradictory and nonsensical testimony about the lineup

makes it impossible to determine whom she identified

as the intruder at the lineup. Her in-court identification

some twenty-nine months later is suspect given the sub-

stantial passage of time, the inherently suggestive charac-

ter of the in-court identification, and Meredith’s own

inconsistent testimony about the lineup.

But we do not sit in direct review of McFowler’s con-

viction—it was the Illinois Appellate Court that filled

that role. And the AEDPA demands that we give appro-

priate deference to the decisionmaking authority of the

state courts. We may not use the writ of habeas corpus to

effectively overrule the decisions of those courts simply

because we disagree with them. Woodford v. Visciotti,

supra, 537 U.S. at 27, 123 S. Ct. at 361. Only if we find

the state court’s application of Supreme Court precedent

objectively unreasonable (28 U.S.C. § 2254(d)(1))—that

is, “well outside the boundaries of permissible differences

of opinion” (Hardaway v. Young, supra, 302 F.3d at 762)—

may we uphold the district court’s decision to grant the

writ. Visciotti, 123 S. Ct. at 361. Notwithstanding our

34 No. 03-1162

doubts, we do not believe we can characterize the Illi-

nois Appellate Court’s decision sustaining the sufficiency

of the evidence underlying McFowler’s conviction as

objectively unreasonable.

Meredith’s in-court identification of McFowler was, as

the Illinois Appellate Court described it, unwavering. She

first described the man that she had seen in her apart-

ment next to Logan’s body in terms consistent with Mc-

Fowler’s appearance. When shown a photograph of the

lineup in court, she circled McFowler’s picture. She then

pointed him out in the courtroom. Later, after testifying

that she had picked “both” McFowler and Byndum out

of the lineup, she was asked to view the two men standing

beside one another in the courtroom. Once again she

identified McFowler as the man she had seen in her

apartment, arguably dispelling any doubt about her abil-

ity to distinguish between McFowler and Byndum. At

no time did Meredith profess any uncertainty in making

her courtroom identification, nor does the record other-

wise suggest any hesitation or confusion on her part in

doing so.

The pertinent inquiry, then, given Meredith’s (apparent)

uncertainty about whom she identified at the lineup, is

whether she had a basis independent from the sug-

gestive setting of the courtroom for making her in-court

identification of McFowler. United States v. Matthews, 20

F.3d at 547-48. The record discloses that she did. Meredith’s

testimony indicates that she was able to get a clear look

at the intruder from a relatively short distance, under

circumstances where her degree of attention would have

been high. At the same time, there is no evidence that

the lineup conducted on the day of the shooting was in

any way suggestive, such that it might have tainted

Meredith’s subsequent in-court identification.

The reliability of Meredith’s in-court identification is

also bolstered, at least to some degree, by other evidence.

No. 03-1162 35

There is, of course, quite strong circumstantial evidence

placing McFowler at the scene of the crime, which sup-

ports the likelihood that it indeed was McFowler whom

Meredith saw. The evidence also confirms the accuracy

of Meredith’s observations in other respects: Meredith

testified that she saw a shotgun in the intruder’s hand, and

a shotgun was found at the Flournoy building where

McFowler was arrested; she testified that the intruder

wore blue jeans, and McFowler was wearing blue jeans

at the time of his arrest; she described the intruder she

saw as somewhat short, and the record indicates that

McFowler indeed is relatively short (five feet, six inches

tall).

Moreover, Meredith was subject to full cross-examina-

tion as to her ability to identify the man she had seen on

the day of Logan’s murder, and all of the inconsistencies

and vulnerabilities in her identification of McFowler

were put before the trier of fact. It bears repeating that

the credibility and reliability of an eyewitness’s in-

court identification is a question for the finder of fact

“after the defendant has had an opportunity to test the

accuracy of an identification through cross-examination.”

United States v. Davies, supra, 768 F.2d at 904; see also,

e.g., United States v. Torres, 191 F.3d 799, 811 (7th Cir.

1999); United States v. Hall, 165 F.3d 1095, 1107 (7th Cir.

1999); United States v. Allen, 930 F.2d 1270, 1273 (7th Cir.

1991). The finder of fact is uniquely situated to observe

how well a witness’s demeanor withstands the rigors of

cross-examination and the exposure of inaccuracies and

inconsistencies in her story. See Anderson v. City of Besse-

mer City, N.C., 470 U.S. 564, 574-75, 105 S. Ct. 1504, 1512

(1985); United States v. Mancillas, 183 F.3d 682, 701 n. 22

(7th Cir. 1999), quoting United States v. Garcia, 66 F.3d

851, 856 (7th Cir. 1995). The trial judge in this case was, of

course, aware of the circumstances that cast doubt on

Meredith’s identification. Despite those circumstances, he

36 No. 03-1162

found Meredith’s in-court identification of McFowler to

be credible. Tr. K56. That assessment commands great

deference. E.g., Murrell v. Frank, 332 F.3d 1102, 1112 (7th

Cir. 2003).

To hold McFowler entitled to relief in habeas corpus,

we would have to say not only that Meredith’s in-court

identification was insufficiently credible and reliable as

a matter of law, but that no court could reasonably think

otherwise. This we cannot do. McFowler’s petition has

considerable intuitive appeal, given the extent to which

the State’s case against him depended upon Meredith’s

identification and the degree to which Meredith’s ability

to identify the intruder was called into doubt not only

by the police officer who arranged the lineup she viewed

hours after the crime but by her own contradictory testi-

mony about whom she picked at the lineup. Yet, witnesses

(including eyewitnesses) often make surprising, contradic-

tory, and nonsensical statements under the stress of

courtroom examination, and although such gaffes would

permit a factfinder to discredit their testimony, they

normally do not command reversal of a conviction on

appeal. See United States v. Frederick, 78 F.3d 1370, 1374

(9th Cir. 1996) (testimony which is confused, inconsistent,

and uncertain can still support a conviction). We cannot

know whether Meredith simply became flummoxed and

contradicted herself for that or for some other reason. But

given that she had a basis from which she could identify

the man who stood over Logan’s body with a shotgun in

his hand, the Illinois Appellate Court was within its rights

to conclude that her identification of McFowler as that man

was not unreliable as a matter of law and was sufficient,

coupled with the circumstantial evidence placing him at

the scene of the shooting, to support McFowler’s convic-

tion. We can find nothing in the holdings or rationale of

Jackson, Biggers, or other Supreme Court precedents that

forecloses the Illinois Appellate Court’s conclusion.

No. 03-1162 37

III.

For all of the foregoing reasons, we REVERSE the dis-

trict court’s judgment granting McFowler’s petition for a

writ of habeas corpus. We thank McFowler’s appointed

attorneys for their service on his behalf.

A true Copy:

Teste:

________________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit

USCA-02-C-0072—11-13-03