Petition for Writ of Certiorari — Deanna Brookhart, Warden, Petitioner v. Kenneth Smith

APPENDICES

1a

APPENDIX A

In the

United States Court of Appeals

For the Seventh Circuit

____________________

Nos. 20-1588 & 20-1666

KENNETH SMITH,

Petitioner-Appellee, Cross-Appellant,

v.

DEANNA

BROOKHART,

Correctional Center,

Warden,

Lawrence

Respondent-Appellant, Cross-Appellee.

____________________

Appeals from United States District Court for the

Northern District of Illinois, Eastern Division. No.

1:15-cv-00271 — Andrea R. Wood, District Judge.

____________________

ARGUED NOVEMBER 12, 2020 — DECIDED

APRIL 29, 2021

____________________

Before WOOD, HAMILTON, and ST. EVE, Circuit

Judges.

2a

WOOD, Circuit Judge. Kenneth Smith has been

in state prison for nineteen years for a murder and

robbery that he insists he did not commit. He

achieved limited success in challenging his

convictions on March 10, 2020, when the district court

held that he is entitled to release unless the state

decides to retry him. Smith v. Brookhart, No. 15-CV00271, 2020 WL 1157356, at *33 (N.D. Ill. Mar. 10,

2020). But Smith was seeking more: an unconditional

writ based on the insufficiency of the evidence. See 28

U.S.C. § 2254(d)(2); Jackson v. Virginia, 443 U.S. 307

(1979). The state has now appealed from the issuance

of the conditional writ, and Smith has cross-appealed

from the denial of the unconditional writ.

Even taking the highly deferential view required

by section 2254(d), we find that the trial evidence

failed to support Smith’s conviction beyond a

reasonable doubt and that the Illinois Appellate

Court was not just wrong, but unreasonable, in

holding otherwise. We thus reverse the district court’s

judgment and order an unconditional issuance of the

writ.

I

A. The Crime

Our account of the facts is taken from the state

court’s findings, which we must accept unless they are

unreasonable in light of the evidence presented in the

state court proceeding. See 28 U.S.C. § 2254(d)(2).

(Section 2254(e)(1) further instructs that we must

presume that the state court’s factual findings are

correct. It is unclear how, if at all, these two standards

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differ, but the state makes nothing of this point, and

so neither do we.) Raul Briseno was fatally shot in the

parking lot of a Burrito Express restaurant he owned

in McHenry, Illinois, on March 6, 2001. People v.

Smith, 2013 IL App (2d) 120508-U (2013). Around

7:20 pm, two masked men walked into the restaurant

while Briseno and his colleague, Eduardo Pardo,

stood behind the counter. The first man to enter

carried what appeared to be a .22 caliber revolver; the

man in tow wore a green jacket. No customers were

present.

After the armed man announced a robbery,

Briseno grabbed a large kitchen knife and charged

towards the pair. The two would-be robbers ran out of

the restaurant with Briseno in pursuit; Pardo soon

followed.

As the foot chase expanded to nearby streets,

Briseno yelled at the driver of a passing car to call the

police, and the armed man disappeared. Meanwhile,

the man in the green jacket slipped on a patch of ice,

permitting Pardo to catch up to him. While the man

in the green jacket lay on the ground, Pardo pulled off

his mask and got a good look at his face. Pardo picked

him up, grabbed his arms from behind his back, and

called out to Briseno. At that moment, Pardo heard a

gun-shot.

Briseno approached Pardo, who continued to

clutch the man in the green jacket. Pardo spotted the

armed man nearby, now unmasked, as the latter fired

another shot. Briseno made it back to Pardo, and the

two began to retreat to the restaurant. Walking

backwards away from the gunman, Pardo held the

4a

man in the green jacket in front of him, while Briseno

walked next to them. The shooting resumed. Pardo

then heard Briseno make an audible “ahh” sound and

spit up blood. Pardo immediately released the man in

the green jacket, ran into the restaurant, and called

911.

While on the phone, Pardo could see Briseno

holding the man in the green jacket in front of him,

using the man as a shield while the shooting

continued. After Pardo completed the call, he went

back outside, but the two would-be robbers were gone.

Briseno lay face down with foamy blood coming out of

his mouth, and the kitchen knife lay next to a pool of

blood. The police arrived about ten minutes later.

Medical personnel, despite their best efforts, could not

save Briseno’s life.

Detective Jeff Rhode interviewed Pardo. When

asked about what the robbers were wearing, Pardo

described the jacket worn by one as green with some

black around the collar. Pardo added that the jacket

looked like leather and that he did not see any

pockets, designs, or zippers on the front.

Lieutenant Gary Wigman led the investigation of

the crime scene, but despite the use of metal detectors

and magnets, the search turned up neither a gun nor

bullet casings. The absence of the latter led the police

to surmise that a revolver had been used, because

revolvers do not eject casings when fired. A firearms

expert later concluded, however, that the bullet in

Briseno’s body was a .22-caliber long-rifle bullet with

six lands and grooves.

5a

Lt. Wigman attended Briseno’s autopsy the next

day, where he observed a laceration and abrasion on

Briseno’s upper forehead. The forensic pathologist

performing the autopsy determined that the forehead

injury was caused by contact with a blunt object and

that it was consistent with being pistol-whipped with

the barrel of a gun. But the pathologist did not

determine when that wound occurred in relation to

the time of death, leaving open the possibility that

Briseno had been injured earlier.

The events of March 6th soon made the news. But

in order to assess the credibility of later witnesses, the

police withheld two critical pieces of information from

the public: (1) that Briseno had yelled into a passing

car during the chase, and (2) that Briseno had a head

wound consistent with being hit with a gun. Around

May 6, 2001, the police obtained and executed arrest

warrants for Kenneth Smith (petitioner here), Justin

Houghtaling, Jennifer McMullan, and David Collett.

Their theory was that Smith was the gunman; that

Houghtaling wore the green jacket; and that

McMullan and Collett sat waiting in a nearby

getaway car.

B. Houghtaling’s Account

When he was caught in early May 2001,

Houghtaling was on a bus to California that was

passing through Omaha, Nebraska. For the first 15

minutes of his interview, interrogators from the

Omaha police asked him about the Burrito Express

shooting. Houghtaling denied any involvement. He

also told police that he had taken hallucinogenic

drugs just before being arrested. The officers then

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(falsely) informed him that Smith, Collett, and

McMullan already had been charged and had given

incriminating statements, and that if Houghtaling

told them what happened, they would help him out.

They then turned on the tape recorder and proceeded

to take Houghtaling’s statement, which we now

describe.

Houghtaling said that on March 6, 2001, he,

Smith, and McMullan were drinking at Collett’s

house behind the Burrito Express. When he and

Smith stepped outside to smoke a joint, Smith said

something to the effect of “come with me, I want to go

do something.” Houghtaling then followed Smith into

the Burrito Express:

Q: What were you wearing?

A: I

Q: Did you have a ski mask on your head?

A: I can’t remember.

Q: You had your face concealed? Some how [sic]

you had your face concealed is that correct?

A: Yes.

Q: Ok and how was that?

A: How is what?

Q: How did you conceal your face? With some

kind of hat?

7a

A: Yes.

Q: OK and how about Kenneth Smith, how did he

con- ceal his face?

A: With if I’m remembering correctly, with the

same with a hat.

Q: With a mask that goes over the face?

A: Yes.

Smith, Houghtaling continued, went into the

restaurant first with what “looked like a little 22.”

After Smith announced the robbery, the owner

“grabbed a knife and I ran”:

Q: OK, and where did you run when you ran out

of [the] restaurant? Are you familiar with that area?

A: No, I’m not.

Q: Ok, did you run behind another building?

A: I honestly can’t even remember.

Q: Did you run towards the busy street, route 120,

or did you run towards the side street?

A: If I’m thinking correctly, the side street, not the

busy one.

Then the man with the knife grabbed

Houghtaling. After Smith began firing the gun,

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Houghtaling said, “the dude let go of me and I ran.”

Following up, police asked:

Q:

Was

he

firing

it

towards

A: No, he fired it at the guy with the knife.

you?

Q: So there was another guy holding you and

another guy with a knife?

Q: That’s correct, is it [Houghtaling]?

A: That could be, I can’t, it happened so long ago

that I don’t remember. I’m not a hundred per cent

[sic] positive, but it could be.

Houghtaling then asserted that he did not see

Smith hit the victim on the head with a gun and that

he did not see that anyone involved was either injured

or bleeding. And while Houghtaling initially had told

police that he and Smith ran back to Collett’s house

after the botched robbery, when police probed him

further later in the interview, Houghtaling said that

they got into a car with Collett and McMullan

immediately after the shooting. The police then again

asked what he was wearing on that night:

A: I don’t remember.

Q: Did you borrow somebody’s jacket that night?

Were you wearing someone else’s jacket?

A: Yea, it was [Collett’s].

Q: What color was it?

9a

A: Green, I think.

Finally, the police tried to nail down what kind of

.22

Houghtaling

observed

Smith

carrying.

Houghtaling was unable to describe the difference

between a revolver and an automatic, and so the

police showed him sketches of the two types of gun.

He selected the sketch of an automatic.

On May 31, 2001, state authorities indicted Smith

based

on

Houghtaling’s

taped

confession.

Houghtaling pleaded guilty on November 14, 2001,

and he was sentenced to 20 years’ imprisonment in

exchange for testifying against the others. Collett also

pleaded guilty. Houghtaling and Collett both offered

apologies to Briseno’s family when they entered their

guilty pleas. Smith, 2013 IL App (2d) 120508-U ¶ 40

(Houghtaling); Id. at ¶ 76 (Collett). (The state makes

much of this fact, suggesting that the apologies are

evidence of Houghtaling and Collet’s participation in

the crimes. In our view, however, the apologies are

hopelessly inconclusive: it is conceivable that the two

apologized out of a sense of guilt; but it is just as

conceivable (if not more) that they apologized in the

hope of securing a lower sentence. Without a

tiebreaker, this evidence helps neither side.)

McMullan was convicted of first-degree murder

and armed robbery and sentenced to 27 years. Four

months after her trial, Houghtaling wrote her a letter.

In it, he said “let me start by saying I’m sorry about

what I did to you at your trial. I know I lied and I was

bogus. To be honest—and I was bogus.” And that was

not the only sign, as we will see, of serious problems

with Houghtaling’s account.

10a

C. Smith’s Trials

1. Trials One and Two

Smith’s first trial was in 2003. Houghtaling

refused to testify, invoking his Fifth Amendment

right against self-incrimination. The trial court

declared him unavailable and admitted his testimony

from McMullan’s trial. But Crawford v. Washington,

541 U.S. 36 (2004), intervened, rendering the

admission of that evidence unconstitutional and

requiring a new trial.

The second trial began in 2008. This time, on

direct examination, Houghtaling testified that he and

Smith attempted to rob the Burrito Express and that

Smith fired the gun. But on cross examination,

Houghtaling recanted and asserted that the

testimony he had just given was false, except for the

fact that he was wearing a green jacket that day. He

averred that he was being forced to lie under oath to

convict Smith because the state would revoke his plea

agreement if he did not do so. As a result of this

recantation, Houghtaling later pleaded guilty to

perjury and received a 5 1/2-year sentence. The state

impeached Houghtaling with his Omaha confession,

and the jury found Smith guilty. But the Illinois

appellate court ordered a retrial for Smith because of

more evidentiary errors.

2. Trial Three

a. Evidence of Smith’s Guilt

11a

At the third trial, held in 2012, the state finally

obtained a conviction that the state courts were

willing to uphold. Following its now well-worn

playbook, it again called Houghtaling as a witness,

over Smith’s objection. On direct, Houghtaling flatly

denied that he and Smith were involved in the

shooting. Houghtaling testified that, on March 6,

2001, Smith and McMullan picked him up from his

home, and they went to pick up Collett. The group

then traveled to the Wisconsin home of one of

McMullan’s friends to pick up a laptop. They returned

to McHenry and stopped briefly at a headshop known

as Cloud 9. His account was corroborated by security

footage showing Collett (only) inside the headshop

from 7:38 pm to 7:44 pm. The group then proceeded to

another friend’s house, where they remained for the

rest of the night.

The state again read into evidence the transcript

from Houghtaling’s 2001 Omaha confession and

played the audio for the jury. (Note that Houghtaling

denied seeing anyone injured or bleeding, and while

he claimed to have heard shots, he did not observe

that anyone “had been shot.” He never directly said

that he saw Smith kill Briseno.) The state also

introduced Houghtaling’s testimony from McMullan’s

trial. In these prior inconsistent statements,

Houghtaling describes the robbery and says that

McMullan suggested they go to Cloud 9 for an alibi.

The state also called Pardo to testify. As Pardo

recounted the events, two masked men walked into

the restaurant to demand money, and he and Briseno

chased them out. He described how he captured the

man in the green jacket, only to release him to

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Briseno when the other man began shooting. Pardo

was then asked to identify a green jacket obtained

from Houghtaling’s residence after his arrest in

Omaha.

When asked whether that jacket “looked like” the

one he saw the night of the shooting, Pardo said yes.

But the contemporaneous description Pardo gave of

the robber’s jacket differs significantly from the jacket

marked as Exhibit 66. The jacket identified as Exhibit

66—Houghtaling’s jacket—is mostly green. But it

also has large black elbow patches, a zipper, black

patches running down the middle adjacent to the

zipper, and three large pockets on the front. On the

night of the shooting, Pardo told Detective Rhode that

the jacket worn by the robber lacked pockets or

zippers and had only “some” black, just around the

collar. When Smith sought to impeach Pardo by

pointing out these discrepancies, Pardo stated that he

did not remember how he described the jacket to

police that night. To perfect the impeachment, Smith

sought to introduce the testimony of Detective Rhode,

but he was barred from doing so.

b. Evidence Implicating the DeCicco Group

Smith also went on the offensive, insisting not

only that he is innocent, but also that he had

identified the real perpetrators. As he did at his

second trial, Smith asserted that a group of three

people completely unrelated to himself or

Houghtaling, Collett, or McMullan committed the

crimes at the Burrito Express. This second group,

referred to as the “DeCicco Group,” is comprised of

Russell Levand (the alleged shooter), Adam Hiland

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(the wearer of the green jacket), and Susanne DeCicco

(an accomplice).

Smith showed that almost from the start, the

authorities had received numerous tips that led them

to believe Susanne DeCicco was a suspect. She first

came to the attention of investigators in November of

2001, when Vicki Brummett (DeCicco’s mother) called

police to tell them that she believed she was in

possession of the .22 caliber revolver used to rob the

Burrito Express and kill its owner.

DeCicco recently had confessed to her mother

that on the evening of March 6, 2001, she drove

around looking for Levand and Hiland and spotted

them standing outside of the Burrito Express. She

saw them run inside, then quickly run back out with

two men in pursuit. One of the restaurant workers

ran in front of DeCicco’s car and asked her to call the

police. DeCicco told her mother that the weapon

ultimately used to kill Briseno belonged to David

Brummett, her stepfather and Vicki’s husband.

She told Vicki that the victim was hit on the head

with the gun, and that as a result, the gun cracked “in

the barrel—or the handle.” Smith, 2013 IL App (2d)

120508-U ¶ 112. After the robbery, the gun was

cleaned of hair and returned to the Brummett

household. Vicki turned the gun over to the police,

and she passed along the details of DeCicco’s

confession. Although experts “could not identify [the

gun] as having fired the bullet that killed Briseno,

[they] could not exclude it.” Id. at ¶ 170. They also

“stated that a .22-caliber gun is a very common type

14a

of gun, as are six lands and grooves.” Id. The

Brummett .22 had stress fractures on the grips.

DeCicco also confessed to four more people, two of

whom were police officers. The first one was her

sister, Elizabeth Schwartz. Schwartz had given birth

to a baby girl the night before the shooting, on March

5, 2001, and she remained in the hospital for a few

extra days. One week later, Schwartz noticed that

Hiland had cuts on the inside of his hand and bruises

on his arm. Three weeks after the shooting, DeCicco

told Schwartz that Hiland was involved in the Burrito

Express shooting.

In October 2001, one month before Brummett

gave the gun to police, DeCicco told her childhood

friend, Brittany Tyda, about how Levand and Hiland

tried to rob the Burrito Express. She told Tyda that

she saw the owner, wielding a knife, grab Hiland

before Levand shot him. Soon after, Tyda overheard

an argument between Levand and DeCicco. Levand

had threatened to turn DeCicco in for writing bad

checks; in response, DeCicco threatened to go to the

police “about him shooting someone.” Smith, 2013 IL

App (2d) 120508-U ¶ 115. Soon after, Tyda told the

police what she knew.

Four years later, the confessions resumed. In

November of 2005, DeCicco was arrested for retail

theft. The police officer in charge of her investigation

knew that DeCicco was a suspect in the Burrito

Express shooting, and he said that if DeCicco was

truthful in providing information about the shooting,

he would issue a citation for the retail theft and release her. Id. at ¶ 96. When police asked DeCicco

15a

about her prior confessions regarding the shooting,

she said that she made up the story as a joke. Asked

a second time, DeCicco continued to deny

involvement. But on the third time, DeCicco stated—

on audiotape—that, on March 6, 2001 she was with

Levand and Hiland when Levand killed Briseno.

The police then formally interviewed DeCicco on

video. DeCicco erroneously stated that the murder

occurred on March 5, 2001, the day Schwartz gave

birth. She said that on the night of the shooting, she

sent Levand and Hiland to go to Vicki Brummett’s

house to pick up a maternity bag. The two took longer

than expected and returned “acting funny.” Id. at

¶ 97. Later that night, after leaving the hospital and

driving to the vicinity of the Burrito Express, DeCicco

observed Levand and Hiland handling a gun wrapped

in a towel in the trunk of her car. Earlier she had seen

the two rummaging in David Brummett’s belongings

and discussing a gun.

Hiland and Levand then left. Id. at ¶ 97. DeCicco

recalled that “they had talked before about snatching

purses or robbing somebody to get money.” Id. Twenty

minutes later, DeCicco drove around looking for them.

She soon witnessed the fateful events unfold at the

Burrito Express, with Briseno running up to her car

and shouting at her to call the police. (Recall that this

was a detail the police withheld from the public.) She

drove away alone.

When she later saw Levand and Hiland, Hiland’s

face was covered in blood and he had a cut on his

hand. Later that night, they cleaned and returned the

gun to the Brummett household and burned their

16a

clothes. Several months later, Hiland and Levand

stole DeCicco’s car and burned it with accelerant in a

field in Racine, Wisconsin, because the blood stains on

the seats would not come off. Smith presented, by

stipulation, corroborating police testimony that

DeCicco’s car was found in Wisconsin in June 2001

destroyed by fire. DeCicco repeated most of this story

to Illinois state police in 2006.

Adam Hiland—age 15 at the time of the

shooting—also confessed to several people. Two or

three months after the shooting, Hiland sat in a van

near the Burrito Express, along with DeCicco’s sister

Schwartz, who was Hiland’s cousin. When Hiland

became visibly irritated and panicked, Schwartz told

Hiland that DeCicco had told her that he was involved

in the shooting. Hiland replied: “She is a fat fucking

bitch and she can’t keep her mouth shut. She needs to

keep her mouth shut.” Id. at ¶ 117. As they drove

away, Hiland told Schwartz that he, DeCicco, and

Levand had been smoking crack the night of the

shooting and that DeCicco had dropped them off in

front of the Burrito Express.

In her testimony, Schwartz said that Hiland told

her that one of the men grabbed Hiland and tried to

stab him, forcing Hiland to grab the knife while

calling out for help, and that at some point before or

after firing the gun, Levand hit Briseno in the head

with the gun. Hiland also confessed to his friend and

roommate Daniel Trumble several times in the

summer of 2002. During his first confession, Hiland

was shaking and crying while he told Trumble that

the “wrong people” were arrested for the murder and

that he, Levand, and DeCicco were involved. Trumble

17a

later recommended that Hiland speak to a lawyer and

arranged for a meeting among Hiland, himself, and

Ed Edens, a criminal defense attorney. The three met

at a restaurant. There, Hiland confessed to the lawyer

and emphasized that Levand was the shooter. The

lawyer recommended that Hiland take no action

because other people had already been arrested.

Two others also heard Hiland’s confession: Gina

Kollross and Charlene McCauley. A few days after the

shooting, Hiland told Kollross about what happened

and how Briseno injured Hiland’s arm and hand with

a knife. Before Christmas in 2001, Hiland told

McCauley how the DeCicco Group had been smoking

crack in David Brummett’s garage, ran out of drugs,

and decided to rob the Burrito Express for money.

Hiland did not tell McCauley that he was cut with a

knife during the shooting.

Finally, we have Russell Levand. His confession

came out through Patrick Anderson, a long-time

acquaintance who was incarcerated with Levand in

2011. That summer, Levand told Anderson that he

was involved in the shooting but that he was not

worried about being prosecuted because the state had

the gun, yet nothing had come of it. Anderson initially

tried to alert the police through a tip line. That went

nowhere, and so in 2011 he directly contacted Smith’s

attorney through a letter, in which he repeated

Levand’s confession.

In fact, Anderson had a longstanding suspicion

that Levand was involved with the Burrito Express

incident. One week before the shooting, Levand

accompanied Anderson to the Burrito Express to

18a

purchase drugs from a man who was associated with

Briseno. While there, Levand learned from Anderson

that Briseno was Anderson’s source of high-quality

cocaine. In the letter to Smith’s defense attorney,

Anderson mentioned that he told Levand that Briseno

“at times” kept cocaine and large sums of cash inside

the Burrito Express.

All the DeCicco witnesses testified at Smith’s

third trial: DeCicco herself, Vicki Brummett,

Schwartz, the two police officers who conducted

DeCicco’s recorded interviews, Rexford (DeCicco’s

half-sister), Hiland, Trumble, Kollross, McCauley,

Levand, and Anderson. Both of DeCicco’s taped

confessions were played to the jury.

But their testimony did not carry the day for

Smith. DeCicco told the jury that she had lied in her

confessions. She said that she only pretended to have

information so that the police would treat her

favorably (i.e., drop the retail theft charges and let her

go), and so that her family would give her money and

sympathy. Levand denied having confessed to

Anderson or being at the Burrito Express on March 6,

2001. Hiland limited his testimony to a denial that a

scar on his hand came from Briseno’s knife. The jury

thus had conflicting accounts about the DeCicco

Group’s involvement.

c. Conclusion of Third Trial

The state had no physical evidence linking Smith

to the crime. There were no fingerprints from him or

Houghtaling at the scene. No DNA evidence. And no

blood that could be linked to Smith or Houghtaling.

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But at the conclusion of his third trial in 2012, after

twenty-one hours of deliberation, the jury found

Smith guilty of attempted armed robbery and firstdegree murder. The court imposed a sentence of 67

years on the murder count and a concurrent sentence

of seven years on the robbery count.

D. Contested Evidentiary Rulings

Three evidentiary rulings made by the trial court

became the focal point of Smith’s appeals. They are

relevant primarily to Smith’s back-up effort to obtain

a new trial, not to his claim that the evidence before

the jury was insufficient to support his conviction.

First, the trial court barred Anderson from testifying

that he told Levand that Briseno sold drugs out of the

Burrito Express. This ruling kept out crucial evidence

of motive and earlier connections. Second, the court

did not allow Trumble to testify that a criminal

defense attorney was present when Hiland confessed

a third time. Third, the court barred Smith from

asking Det. Rhode how Pardo described the jacket on

the night of the murder.

On direct appeal, Smith argued (among other

things) that these evidentiary exclusions violated his

constitutional right to present a complete defense. He

also argued that no trier of fact could have found him

guilty beyond a reasonable doubt based on the

evidence. The Illinois appellate court affirmed his

conviction. People v. Smith, supra, 2013 IL App (2d)

120508-U.

Smith then sought a writ of habeas corpus from

the federal court. See 28 U.S.C. § 2254(d)(1). He

20a

argued that the state appellate court had

unreasonably applied Jackson v. Virginia, 443 U.S.

307 (1979), in finding that there was sufficient

evidence for a jury to find his guilt beyond a

reasonable doubt. Despite acknowledging that “the

evidence of the DeCicco Group’s involvement [was]

highly compelling if not conclusive,” Smith v.

Brookhart, No. 15-CV-00271, 2020 WL 1157356, at

*19 (N.D. Ill. Mar. 10, 2020), the district court felt

bound to defer to the state court’s conclusion that the

evidence of Houghtaling’s recanted confession and

Pardo’s identification of the green jacket just barely

supported the convictions.

Nonetheless, the court held that Smith was

entitled to a new trial because of the three evidentiary

exclusions we just described. The court found that

these rulings violated Smith’s federal constitutional

right to present a complete defense and engage in

effective cross-examination, and so it ordered

issuance of the writ, subject to the state’s decision

whether to con- duct a new trial. As we noted earlier,

the state has appealed from that decision, and Smith

has cross-appealed from the court’s rejection of an

unconditional

writ

(through

an

ongoing

representation by recruited counsel from the law firm

of Jenner & Block LLP, to whom we are thankful).

II

A. The Jackson Rule

Jackson v. Virginia holds that criminal

convictions must stand unless “upon the record

evidence adduced at the trial no rational trier of fact

21a

could have found proof of guilt beyond a reasonable

doubt.” 443 U.S. 307, 324 (1979). When conducting a

sufficiency-of-the-evidence inquiry on a habeas corpus

petition, “the only question under Jackson is whether

[a] finding [is] so insupportable as to fall below the

threshold of bare rationality.” Coleman v. Johnson,

566 U.S. 650, 656 (2012). If “the state court of last

review did not think” the finding of guilt was

irrational, AEDPA mandates that the federal court

give that decision “considerable deference” and

uphold the conviction. Id. Finally, the Supreme Court

has instructed that “the sufficiency of the evidence

review authorized by Jackson is limited to ‘record

evidence.’” Herrera v. Collins, 506 U.S. 390, 402

(1993), citing Jackson, 443 U.S. at 318. All of the

evidence recounted above appears in the record.

The relevant question is not whether we disagree

with the state court’s resolution of the case. AEDPA

deference would mean little if the test were so lenient.

Instead, we must find the decision not just wrong, but

well outside the boundaries of permissible outcomes.

Put otherwise, a federal court “may not overturn a

state court decision rejecting a sufficiency of the

evidence challenge simply because [it] disagrees with

the state court. ... [It] may do so only if the state court

decision was objectively unreasonable.” Cavazos v.

Smith, 565 U.S. 1, 2 (2011) (quotation marks

omitted).

When a federal court faces conflicting inferences

that can be drawn from the evidence—one pointing to

culpability and the other pointing to innocence—the

court must “review the evidence ‘in the light most

favorable to the prosecution’” and accept the inference

22a

that supports the prosecution’s theory of the case.

McDaniel v. Brown, 558 U.S. 120, 133 (2010) (citing

Jackson, 443 U.S. 319) (reversing a grant of a habeas

corpus petition when it appeared that the reviewing

“court’s recitation of inconsistencies in the testimony

show[ed] [that] it failed” properly to resolve

conflicting inferences in favor of the prosecution).

Jackson and AEDPA thus leave only a narrow

path for the federal writ of habeas corpus. Even so, in

the rare case a successful sufficiency challenge is

possible. See, e.g., Tanner v. Yukins, 867 F.3d 661 (6th

Cir. 2017). The Court itself in Jackson cautioned that

a “jury may occasionally convict even when it can be

said that no rational trier of fact could find guilt

beyond a reasonable doubt.” Jackson, 443 U.S. at 317.

Further, when conducting this inquiry, we do not ask

whether there was “any” evidence that would support

the conviction. Id. at 313, 320 (it “could not seriously

be argued” that a “mere modicum” of evidence could

“by itself rationally support a conviction beyond a

reasonable doubt”). Rather, relief is appropriate “only

if the record is devoid of evidence from which a

reasonable jury” could find the requisite guilt beyond

a reasonable doubt. United States v. Hills, 618 F.3d

619, 637 (7th Cir. 2010).

The district court did not pay sufficient heed to

the distinction between the “any-evidence” rule that

Jackson repudiated and the more qualified “no

evidence from which a jury could find guilt beyond a

reasonable doubt” rule the Court articulated. Instead,

the district court reasoned that “[s]o long as the record

is not ‘devoid of evidence’ of a habeas petitioner’s

guilt,” relief could not issue. Smith, 2020 WL

23a

1157356, at *19. It thought that Houghtaling’s

recanted confession and Pardo’s identification of the

green jacket squeaked over the “devoid of evidence”

line, and it felt constrained not to “weigh[] the

evidence or second guess[] the jury.” Id. But “devoid

of evidence” is not the correct standard, and we are

permitted even under AEDPA to correct this type of

legal error. Avila v. Richardson, 751 F.3d 534, 536

(7th Cir. 2014).

B. Sufficiency of Houghtaling’s Evidence

1. The Green Jacket

The state puts a lot of stock into Pardo’s

statement that Houghtaling’s jacket (shown to Pardo

at the trial) “looks like” the green jacket he saw on

March 6, 2001. It asks us to infer that Pardo was

actually saying that he believed Houghtaling’s jacket

was the jacket he saw that night—not merely that one

green jacket “looks like” another green jacket. But

that is not an inference; it is a recharacterization of

the evidence. Pardo was not asked, and he did not say,

that he was looking at “the” jacket. That falls well

short of a positive identification.

2. The Omaha Confession

A jury is entitled to credit witnesses as it deems

fit. Nonetheless, Jackson leaves room for instances in

which the jury’s ultimate decision to convict cannot

stand because a reasonable doubt remains. In

applying Jackson’s test, we must consider “all of the

evidence admitted by the trial court.” McDaniel, 558

U.S. at 131, quoting Lockhart v. Nelson, 488 U.S. 33,

24a

41 (1988). With that in mind, we must assess whether

the state court’s rejection of the proposition that no

reasonable juror could have sustained a conviction

beyond a reasonable doubt was reasonable.

Even viewed through that deferential and

favorable lens, Houghtaling’s Omaha confession falls

short, especially when viewed alongside the DeCicco

Group’s interlocking and corroborated confessions.

We accept that Smith’s 2012 jury thought that

Houghtaling was truthful in his Omaha interview,

truthful at McMullan’s 2008 trial, and dishonest at

Smith’s trial. But truthful about what? In Omaha,

Houghtaling said that he saw Smith firing the gun,

but he denied seeing anyone get shot, and he said that

he did not see anyone who was either injured or

bleeding. At McMullan’s trial, he said that Briseno

and Pardo grabbed him, and he saw (or felt) Briseno

fall down after Smith fired shots. That is as close as

he comes to describing the killing.

The state urges that this is enough. The Omaha

and McMullan accounts were reliable, the state

argues, because at the time of his arrest in Omaha,

Houghtaling had not yet struck a plea deal with the

state and so had no incentive to lie. The state explains

away Houghtaling’s recantation at Smith’s second

trial as motivated by a desire to save his own skin

while he challenged his own conviction.

Smith counters that Houghtaling had many

reasons to be less than truthful in Omaha: the police

told him that he already had been incriminated; they

promised to take it easy on him if he cooperated; and

he was high on hallucinogens. As for the recantation,

25a

Smith argues that the only way to understand

Houghtaling’s willingness to accept an additional five

and a half years of imprisonment for perjury is that

he was at long last trying to come clean.

If this were just a credibility assessment, we

would be required to defer to the jury. Juries may rely

on one witness even if his testimony is contradicted

by a phalanx of others. But Houghtaling was not an

independent witness: he provided not a single detail

that the police did not already know. When pressed at

oral argument to name one fact from Houghtaling’s

Omaha confession that was (1) factually consistent

with Pardo’s eyewitness testimony and the

investigation, (2) not prompted by a leading question

by police officers, and (3) not publicly known, the state

was unable to oblige. (We focus on the Omaha

confession because by the time Houghtaling testified

at McMullan’s trial, he had reviewed the police reports and received coaching from the state.)

The state’s failure was not for lack of effort. For

example, the state attaches great weight to

Houghtaling’s statement that Smith carried a .22

caliber handgun. But this requires one to overlook the

fact that Houghtaling, when later asked to choose

between a drawing of an automatic (the wrong gun)

and of a revolver (the correct gun), he chose the wrong

one. And the state downplays the ballistic expert’s

inability to exclude the Brummett .22 as the murder

weapon, emphasizing that the .22 is a “very common

type gun.” But the state is notably quiet on the .22’s

popularity when explaining how critical it was that

Houghtaling correctly said that Smith carried “a little

22.”

26a

The state also notes that Houghtaling correctly

stated that the chase unfolded on the side streets, not

the “busy” streets. But as the transcript we

reproduced earlier shows, this statement was

prompted by leading questions with a 50% chance

that Houghtaling would guess right.

What stands out most is what Houghtaling

omitted or got wrong. Houghtaling failed to mention

that one of the men in pursuit stopped and yelled

something at a passing car. He does not even mention

that two men were in pursuit. When asked pointblank whether he recalled Briseno being hit “with the

gun or anything,” Houghtaling unequivocally

answered no. It is pure speculation to guess that he

may not have noticed these details, despite allegedly

being a key player in the attempted robbery. His lack

of knowledge stands in stark contrast to the

admissions from the DeCicco Group.

There is no way around the fact that

Houghtaling’s Omaha confession, later reincarnated

at McMullan’s trial, is riddled with holes. Although

Jackson and AEDPA require us to view the evidence

in the light most favorable to the prosecution, they do

not invite us to make up facts. Houghtaling’s

testimony and the green jacket are a thin reed indeed

on which to try to base a conviction. And we must view

that evidence—and apply Jackson—based on the

record as a whole. That record critically includes the

compelling evidence relating to the DeCicco Group, to

which we now turn. As we now explain, the DeCicco

Group’s confessions, along with the weakness of the

other evidence, compel us to conclude that no rational

juror could have found Smith guilty.

27a

C. The DeCicco Group

The state reminds us that despite the evidence of

the DeCicco Group’s culpability that Smith was able

to introduce at his third trial, the jury found that

Smith committed the crime. But if we remove the

green jacket from the picture and recognize the holes

in the Omaha interview, the DeCicco evidence adds

powerfully to the existence of the reasonable doubt we

see here.

DeCicco herself confessed to five different people,

two of whom were law enforcement officers. Even

viewing the evidence in the light most favorable to the

state, the substance of her confession is hard to get

around. Soon after the shooting, DeCicco told friends

and family the very two key facts that police

intentionally withheld from the public so that they

could later ascertain the credibility of confessions:

first, that the victim yelled into a passing car (which,

in DeCicco’s confession, was driven by her); and

second, that the victim may have sustained a bluntforce head injury.

She even told state police during her 2006

interview that the blunt-force injury “was not in the

papers anywhere. How would I know that unless the

people who did it actually told me?” Smith, 2013 IL

App (2d) 120508-U ¶ 170. The appellate court tried to

offer an alternative explanation for DeCicco’s insider

knowledge: that “this non-public information was not

kept as secret from the public as the police desired.”

Id. But nothing in the record supports this possibility.

28a

Furthermore, DeCicco’s confessions did not stand

alone. Levand and Hiland made confessions that

corroborated the same basic facts, and the record

contains nothing indicating that either one had an

incentive to do so falsely. Again, while Jackson and

AEDPA require us to view all evidence in the state’s

favor, Jackson does not require us to draw the

remarkable inference that an entire package of crosscorroborated confessions came into existence from

pure happenstance or a deliberate conspiracy to

mislead friends, family, and police. There is no basis

in the record to support such an improbable idea. And

other evidence is also nearly impossible to disregard.

Perhaps Levand and Hiland stole and burned

DeCicco’s car in a field to make their lies more

credible. But nothing supports that version of the

facts. Jackson, 443 U.S. at 325. It is notable that it

was DeCicco’s own family members who came

forward to the police.

Finally, consider the injuries on Hiland’s body

and the lack of injuries on Houghtaling. Several

eyewitnesses testified to seeing Hiland in the days

after March 6, 2001, with his hand bandaged and his

arms bruised. Hiland even told some of these

witnesses that he had sustained the injuries in a

scuffle while committing the Burrito Express robbery.

Of course, Hiland also had a different story. He told

some people that he got his injuries when he fell down

icy stairs. And at Smith’s 2012 trial, he told the jury

that he got a scar on his hand when fleeing from police

a few years earlier.

But what is notable, and undisputed, is that

Houghtaling had no injuries after the incident. The

29a

day after the Burrito Express shooting, Houghtaling

went to the police station wearing the same green

jacket that was later admitted into evidence. Police

there observed neither injuries on his body nor any

blood stains or cuts on the jacket. The appellate court

tried to deal with this damning fact by suggesting

that Houghtaling’s “lack of physical injuries ... do not

cast doubt on his credibility, where it was undisputed

that the green leather jacket he wore covered his

arms.” Smith, 2013 IL App (2d) 120508-U ¶ 165. But

as we noted earlier, the record does not establish that

Houghtaling’s jacket and that of the robber were one

and the same. While the jacket’s color is undisputed,

Pardo stated at trial only that the jacket “looked” like

leather. We note that an examination of the garment

tag inside the jacket indicates that the exterior shell

is made of PVC casting leather (i.e., vinyl) and

rayon—much more affordable (and less durable) than

real leather. While a fair-minded jurist might

reasonably conclude that leather could shield

someone from physical injuries such as knife cuts or

bruises, this conclusion is more tenuous for a jacket

with a vinyl exterior.

The appellate court made one final error worth

highlighting. On direct appeal, Smith emphasized

that the crime scene was bloody but that the evidence

showed that neither he nor Houghtaling had blood on

their clothes that night or the next day. In contrast,

the testimony indicates that Hiland was covered in

blood. In response, the appellate court remarked that

Smith’s “characterization of the crime scene as bloody

is not supported by the evidence.” Smith, 2013 IL App

(2d) 120508-U ¶ 165. This is simply incorrect. One has

only to look at the rather grisly photos in the record

30a

of the crime scene and of the final outfit worn by

Briseno on March 6, 2001, to see that Smith’s

statement is accurate: Dkt. 1-12 (Appx. Vol. 12-1, Ex.

33-39); Dkt. 1-13 (Appx. Vol. 12-2, Ex. 44); Dkt. 1-18

(Appx. Vol. 12-7, Ex. 131, 132); Dkt. 1-19 (Appx. Vol.

12-8, Ex. 133).

Our point here is not to adjudicate the DeCicco

Group’s guilt. The evidence implicating them is

relevant because it casts a powerful reasonable doubt

on the theory that Smith and Houghtaling were the

robbers that night. Houghtaling’s inconsistencies

take on a special significance in light of the DeCicco

evidence—evidence that builds a narrative largely

free from the holes that fill Houghtaling’s confession.

With such a serious possibility of a third party’s guilt,

cf. Chambers v. Mississippi, 410 U.S. 284 (1973)

(finding constitutional violation when defendant was

blocked from full presentation of his defense and a

third-party had confessed), we are convinced as an

objective matter that no rational trier of fact could

have found Smith guilty beyond a reasonable doubt.

The appellate court was unreasonable to hold

otherwise.

III

Because we have found that the state court

unreasonably applied Jackson when it determined

that there was sufficient evidence to support Smith’s

conviction, we technically have no need to reach the

evidentiary errors Smith raised. As we noted at the

outset, our Jackson determination is based on the

evidence actually introduced at trial, without regard

to any error in either inclusion or exclusion. We think

31a

it helpful, however, briefly to address Smith’s

evidentiary arguments. A look at why they were

prejudicial sheds further light on the inadequacy of

the evidence at trial to convict him.

To determine whether a state evidentiary ruling

passes muster under Chambers, we must balance a

state’s legitimate interest in an efficacious “criminal

trial process” against the defendant’s constitutional

rights to present a complete defense, with a heavy

thumb on the side of the state court’s resolution of

that issue. In Kubsch v. Neal, 838 F.3d 845, 855 (7th

Cir. 2016) (en banc), we explained our understanding

of the Supreme Court’s Chambers line of cases.

Habeas corpus relief is available, these cases hold,

when a state court presiding over a murder trial

arbitrarily applies an evidentiary rule to exclude

“reliable and trustworthy” evidence that is essential

to the defense and not otherwise inadmissible. Id. at

858.

Relying on the Supreme Court’s decisions in

Crane v. Kentucky, 476 U.S. 683 (1986), and Rock v.

Arkansas, 483 U.S. 44 (1987), we recently found that

a state court unreasonably applied Supreme Court

precedent when it excluded this type of evidence.

Fieldman v. Brannon, 969 F.3d 792 (7th Cir. 2020).

The trial court did not permit the defendant to

present evidence that would have offered an innocent

explanation for his meeting with a potential hitman.

In finding for the petitioner, we noted the lack of

parity between the prosecution and the defense with

respect to the period “in which evidence was [deemed]

relevant to Fieldman’s intent.” Id. at 808. For the

prosecution, that period stretched back for months;

32a

for the defense, a few weeks was too long. That left

the jury adrift, trying to understand the defendant’s

intent without crucial evidence. We thus ordered the

issuance of a conditional writ, permitting the state to

retry the defendant.

The same principles apply to the exclusion of the

three pieces of evidence that Smith challenges,

particularly those that fit within the DeCicco Group’s

web of cross-corroborated confessions. The first and

most significant was Anderson’s testimony regarding

Briseno’s cocaine dealing and Levand’s knowledge of

that side-business. This was central to the issue of

motive—one of the glaring lacunae in the case against

Smith. It would have shown that the DeCicco Group

had a specific reason to rob Briseno, while Smith and

his friends did not. Neither reason given by the state

appellate court for keeping the evidence out holds

water. Anderson’s statement was not inconsistent

with the evidence indicating that the robbers were

looking for money. Anderson just added the fact that

the group sought money for the purpose of getting

drugs and so went to a place where both might be

found. Where illegal drugs are being sold, there is

likely cash on hand. See, e.g., United States v.

Lawrence, 788 F.3d 234, 242 (7th Cir. 2015).

Moreover, Smith’s goal in introducing this testimony

was not to establish that Briseno was selling cocaine

from the Burrito Express. Rather, it was to show that

the DeCicco Group—in particular Levand—might

have believed that to be the case. This evidence was

vital to Smith’s defense.

Second, the state trial court erred by excluding

critical testimony about Hiland’s confession to his

33a

friend and room-mate, Trumble. Trumble was ready

to testify that he witnessed Hiland confess to a

criminal defense attorney. The appellate court

affirmed the exclusion on hearsay grounds. But that

analysis was incomplete, because state law does not

have the last word in these situations. Throughout

the trial, the state sought to undermine the

confessions from members of the DeCicco Group—

Hiland’s in particular—by suggesting that group

members had social incentives to lie. For example, the

state speculated, Hiland may have wanted to look

tough in the eyes of his friend Trumble. But these

explanations say nothing about what Hiland had to

gain by falsely boasting to a disinterested lawyer that

he had participated in a murder/robbery. The

excluded evidence from Trumble would have shown

that Hiland was concerned with legal jeopardy, took

his concern seriously enough to seek out legal advice,

and made a confession that was consistent with his

prior confessions, without the social pressures that

may have previously driven him to take liberties with

the truth.

The exclusion was also arbitrary, insofar as the

trial court allowed the state to provide context for

Houghtaling’s confession, but it barred Smith from

doing the same for Hiland’s. And this exclusion was

not harmless. In concluding otherwise, the appellate

court reasoned that it was enough that the jury heard

DeCicco’s statement that Hiland told her that he

spoke to an attorney and the proffered evidence was

cumulative. But DeCicco’s statement was no

substitute for Trumble’s. Trumble added critical new

facts, while DeCicco’s version was consistent with two

diametrically opposed inferences: Version 1, that

34a

Hiland met with the attorney because he feared being

wrongly prosecuted for crimes that he did not commit,

or Version 2, that he had the meeting because he

feared rightly being prosecuted for crimes he did

commit. Trumble’s testimony erases this ambiguity,

and its exclusion seriously prejudiced Smith.

The third problematic evidentiary call came when

the trial court prevented Smith from further

impeaching Pardo’s testimony through Detective

Rhode. Rhode’s additional testimony would have

revealed inconsistencies between Pardo’s description

of Houghtaling’s jacket on the night of the murder and

his identification of the jacket shown to him at trial.

Smith wanted the jury to know that the jacket Pardo

described on March 6, 2001 had black around the

collar but no pockets or designs or a zipper, while

Houghtaling’s jacket (seen at trial) had three large

front pockets, a front zipper, a small patch of black

underneath the collar, and large black elbow patches.

Smith contends that the decision to bar Rhode’s

testimony violated his rights under the Confrontation

Clause and Delaware v. Van Arsdall, 475 U.S. 673,

679 (1986), which entitles criminal defendants to an

“opportunity for effective cross-examination.” The

appellate court implicitly conceded error but held that

the exclusion was harmless. Given the centrality of

the jacket to the prosecution’s theory, we see no way

that this call was harmless. The appellate court

thought

that

the

discrepancies

between

Houghtaling’s jacket and the one described by Pardo

“were minor and could not have contributed to the

verdict.” Smith, 2013 IL App (2d) 120508-U ¶ 229.

But apart from being mostly “green,” the jacket seized

35a

from Houghtaling looks nothing like the jacket Pardo

described.

Taken together, as the district court properly

held, these errors deprived Smith of his right to a fair

trial. See Alvarez v. Boyd, 225 F.3d 820, 824 (7th Cir.

2000). The state asks us to defer to the appellate

court’s determination that Smith got a fair trial

because he was able to present over twenty

“witnesses, including eight who testified that one or

more of DeCicco, Hiland, and Levand confessed to

them, and two recordings of DeCicco’s confessions to

police.” But prejudice is not a matter of headcounting. It requires an assessment of the effect of the

errors on the proceeding.

In a habeas corpus case where a claim of harmless

error has been raised, the Supreme Court has

established the following standard of review: “When a

federal judge in a habeas proceeding is in grave doubt

about whether a trial error of federal law had

substantial and injurious effect or influence in

determining the jury’s verdict, that error is not

harmless. And, the petitioner must win.” O’Neal v.

McAninch, 513 U.S. 432, 436 (1995) (cleaned up); see

also Davis v. Ayala, 576 U.S. 257, 267–68 (2015).

Ayala added that “[t]here must be more than a

reasonable possibility that the error was harmful.”

576 U.S. at 268 (cleaned up). Where, as here, the state

court has evaluated harmlessness, relief under

section 2254(d)(1) is not authorized unless that

36a

harmlessness determination itself was unreasonable.

Id.1

Difficult though that standard is, we conclude

that Smith has met it. But for the exclusions, the jury

would have learned that the DeCicco Group had a

specific motive to rob the Burrito Express and that

one of the group’s members made a confession bearing

indicia of credibility far exceeding those of the other

confessions on record. Further, the jury would have

learned that the state’s only eyewitness offered

inconsistent testimony about the jacket, casting into

doubt the only piece of tangible evidence linking

Houghtaling—and therefore Smith—to the crime. For

these reasons, and all the others we have reviewed in

detail above, we conclude that the state court’s

determination of harmlessness was unreasonable and

thus cannot stand. Although this holding primarily

affects the need for a new trial, it also sheds light on

the insufficiency of the evidence as actually presented

1 We recognize that the Sixth Circuit held, in Davenport v.

MacLaren, 964 F.3d 448 (6th Cir. 2020), that a state court’s

findings are not relevant in a case governed by Ayala, and

ultimately by Brecht v. Abrahamson, 507 U.S. 619 (1993)

(introducing the “substantial and injurious effect or influence”

test). The Supreme Court has granted certiorari to decide

whether, in a habeas corpus proceeding under section 2254, a

federal court may grant relief based solely on Brecht, or if it must

also find that the state court’s application of the relevant

standard was unreasonable for purposes of 28 U.S.C. §

2254(d)(1). See Brown v. Davenport, No. 20-826, 2021 WL

1240919 (U.S. Apr. 5, 2021). The outcome of Brown will not affect

our case, since our court has adopted the latter, more stringent,

standard.

37a

and reinforces our conclusion that Smith is entitled to

issuance of the writ.

IV

We REVERSE the district court’s holding that the

evidence was constitutionally sufficient to sustain

Smith’s conviction. Accordingly, we remand the case

to the district court with instructions to grant the

petition for a writ of habeas corpus un- conditionally

and order the immediate release of Kenneth Smith

from state custody.

38a

APPENDIX B

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF

ILLINOIS EASTERN DIVISION

KENNETH SMITH

Petitioner,

v.

DEANNA BROOKHART,

Acting Warden, Lawrence

Correctional Center,

Respondent.

)

)

)

)

)

)

)

)

)

)

)

No. 15-cv-00271

Judge Andrea R.

Wood

MEMORANDUM OPINION AND ORDER

Following his third trial, Petitioner Kenneth

Smith was convicted of first-degree murder and

attempt armed robbery arising out of a March 6, 2001,

attempted robbery of a restaurant that resulted in the

murder of its owner, Raul Briseno. Smith was

sentenced to sixty-seven years’ imprisonment on the

first-degree murder conviction, along with a

concurrent seven years’ imprisonment sentence on

the attempt armed robbery conviction. The Illinois

Appellate Court (“Appellate Court”) affirmed his

convictions and the Illinois Supreme Court denied his

petition for a writ of certiorari. Smith has filed the

present petition for a writ of habeas corpus (Dkt. No.

1), under 28 U.S.C. § 2254(d), arguing that the

Appellate Court unreasonably applied Jackson v.

39a

Virginia, 443 U.S. 307 (1979), in finding that there

was sufficient evidence supporting his convictions.

Alternatively, Smith asserts that the Appellate Court

violated his constitutional right to present a complete

defense and his rights under the Sixth Amendment’s

Confrontation Clause when it affirmed certain trial

court evidentiary rulings. For the reasons that follow,

Smith’s habeas petition is granted on the basis of the

evidentiary errors, and his convictions and sentence

are vacated.

BACKGROUND1

I. The Burrito Express Robbery

On March 6, 2001, two masked men entered a

Burrito Express restaurant in McHenry, Illinois and

attempted to rob the restaurant. The restaurant’s

owner, Raul Briseno, resisted the robbery along with

his employee Eduardo Pardo. Briseno grabbed a knife

and he and Pardo chased the masked men out of the

restaurant. As the chase continued outside of the

restaurant, the masked man wearing a green jacket

slipped on a patch of ice, thereby allowing Pardo to

catch him. Pardo then attempted to drag the masked

man in the green jacket back toward the Burrito

1 When reviewing a habeas petition, the court “must accept the

factual findings of the state trial and appellate courts as true

because they are entitled to a presumption of correctness.” Ford

v. Ahitow, 104 F.3d 926, 928 (7th Cir. 1997). Therefore, the facts

here are taken predominantly from the Appellate Court’s

decision affirming Smith’s conviction. See People v. Smith, No. 212-0508, 2013 WL 2382284 (Ill. App. Ct. May 29, 2013)

(unpublished Ill. Sup. Ct. Rule 23 order). However, certain

additional facts have been taken from the trial record to provide

further context to the Appellate Court’s findings of fact.

40a

Express. In response, the second masked man began

shooting. One of his shots hit Briseno, who ultimately

died as a result of the wound. The two masked men

fled the scene of the crime.

Just over two months later, Justin Houghtaling

was arrested in Omaha, Nebraska in connection with

the Burrito Express shooting and interrogated by the

police. During his interrogation, Houghtaling gave a

statement that implicated himself and Smith in the

shooting. Based on that statement, Smith was

indicted on May 31, 2001. Also indicted were Smith’s

purported accomplices Houghtaling, David Collett,

and Jennifer McMullan. Houghtaling pleaded guilty

on November 14, 2001. He received a twenty-year

sentence of imprisonment in exchange for his

testimony against Williams, McMullan, and Collett.

In a trial featuring Houghtaling’s testimony,

McMullan was convicted of first-degree murder and

attempt armed robbery and received a sentence of

twenty-seven years’ imprisonment. On the basis of his

lawyer’s advice, Collett took a “plea of convenience” in

order to avoid a lengthy prison term.

II. Smith’s First Two Trials

Smith was first tried in 2003. When the State

called Houghtaling to testify, he invoked his Fifth

Amendment

right

against

self-incrimination.

Consequently, the trial court declared Houghtaling

unavailable and permitted the State to introduce

Houghtaling’s testimony from McMullan’s trial.

Ultimately, Smith was found guilty of first-degree

murder and attempt robbery. He successfully

appealed the convictions on the basis of the Supreme

41a

Court’s decision in Crawford v. Washington, 541 U.S.

36 (2004), which held that a testimonial statement of

a witness absent from trial cannot be admitted under

the Confrontation Clause of the Sixth Amendment if

the defendant did not have a prior opportunity to

cross-examine the absent witness. The case was

remanded for a new trial.

At the second trial, Houghtaling did testify. On

direct, Houghtaling stated that he and Smith were

the two masked men that attempted to rob the

Burrito Express. Houghtaling stated that he was the

man wearing the green jacket and Smith was the man

with the gun. After Smith shot Briseno, Houghtaling

and Smith ran to a car where McMullan was waiting

with Collett in the rear seat. The group then drove to

their friend James “Jimmy” Weisenberger’s home

where they remained through the night. However, on

cross-examination, Houghtaling was asked about his

agreement with the State’s attorney. Then, without

any further prompting, Houghtaling recanted his

testimony and stated that the story he told on direct

was not true. He asserted that the State was forcing

him to admit to a crime so that it could convict Smith

for a crime that he did not commit. On re-direct,

Houghtaling was impeached with the statement he

gave following his arrest in Omaha.

In addition, Smith sought to implicate a different

group of individuals in the crime. According to Smith,

the crime was committed by Russell “Rusty” Levand,

his girlfriend Susanne “Dallas” DeCicco, and her

cousin Adam Hiland (collectively, the “DeCicco

Group”). When DeCicco and Hiland were called to

testify, they denied their involvement in the shooting.

42a

Yet, when Smith sought to introduce evidence of their

prior confessions, the court barred Hiland’s confession

entirely and only admitted portions of DeCicco’s

confession. Once again, Smith was found guilty on

both counts. Yet, the convictions were reversed and

remanded again on appeal, in part because of the trial

court’s refusal to allow Smith to impeach Hiland with

a prior inconsistent statement.

III. Smith’s Third Trial

The convictions that form the basis of the present

habeas petition were handed down following Smith’s

third trial. According to the State’s theory of the case,

Smith and Houghtaling were the two masked men

that entered the Burrito Express and attempted to

rob it. After a knife-wielding Briseno, along with

Pardo, chased them out of the restaurant,

Houghtaling slipped on a patch of ice. Pardo was able

to catch up to Houghtaling, seize him, and begin

dragging him back to the restaurant. This caused

Smith to begin shooting. One of his shots struck and

killed Briseno. Smith and Houghtaling then fled to

McMullan’s waiting car, which also contained Collett.

Smith again defended himself by pointing to the

DiCecco Group as the true perpetrators.

A. The Pre-Trial Proceedings

Before the third trial, Smith sought leave to

admit evidence concerning Briseno’s drug-dealing

activity at the Burrito Express. This evidence would

have gone to the DiCecco Group’s motive for robbing

the Burrito Express. He made three live proffers on

43a

this issue. In addition, Smith sought to exclude the

testimony of Houghtaling and Collett.

i. Patrick Anderson Proffer

Smith sought to introduce the testimony of

Patrick Anderson. Anderson would testify that he

knew Briseno well and bought cocaine from him

through “Serge,” an employee who worked in

Briseno’s restaurants. Among Anderson’s customers

was Levand, whom he also counted as a friend. Smith

first became aware of Anderson after he sent Smith’s

defense counsel a letter dated December 29, 2011. In

that letter, Anderson stated that shortly before

Briseno’s murder, he and Levand went to the Burrito

Express to buy cocaine. Prior to the purchase,

Anderson told Levand that Briseno kept large

amounts of money and cocaine at the Burrito Express.

Following the murder, Anderson recalled hearing

rumors about the DeCicco Group’s involvement.

Then, sometime during the summer of 2011,

Anderson and Levand were incarcerated together in

the McHenry County jail. After Anderson told Levand

that he had reason to believe that Levand had a

motive to shoot Briseno, Levand confessed to his

involvement in the crime.

The State offered to stipulate that Anderson

would testify in accordance with the letter. However,

the court was concerned that the letter raised hearsay

issues. In response, Smith’s defense counsel argued

that any hearsay testimony would be used only to

show Levand’s knowledge of Briseno’s drug-dealing

rather than for the truth of any matters asserted.

Nonetheless, the trial court excluded Anderson’s

44a

testimony because it would be hearsay and also was

“highly suspect” given that Anderson only came

forward ten years after the fact. It further ruled that

the letter was insufficient to establish the DiCecco

Group’s motive because there was “no close

connection to the drugs and to this crime for which

the defendant is on trial.” (App. to Habeas Pet.

(“App.”), Ex. 17 at R005216, Dkt. No. 1-6.)

Anderson also sought to testify why he did not

come forward prior to December 2011 with this

information. He would have said Levand only first

confessed to him in the summer of 2011 when they

were incarcerated in the same jail. Once he obtained

the confession, Anderson felt compelled to come

forward because he had previously been wrongly

accused of a crime and, if someone had information to

help him, he would have wanted that person to come

forward as well. He wrote the letter to Smith’s defense

counsel only after his attempts to alert authorities

through a “tip line” proved fruitless. While Anderson

would be permitted to testify at trial regarding

Levand’s confession, he was barred from testifying

about Levand’s knowledge of Briseno’s drug dealing

activities at the Burrito Express and why he did not

tell anybody sooner about Levand’s confession.

ii. Officer Guillermo Quinones Proffer

Smith also sought to introduce the testimony of

Officer Guillermo Quinones, an undercover operative

with Lake County, Illinois’ Metropolitan Enforcement

Group. Quinones would have testified that while he

was working on an undercover drug investigation, he

made multiple visits to a restaurant owned by

45a

Briseno. Those visits occurred less than six months

before Briseno was shot. During one of the visits,

Quinones spoke to Briseno about Briseno’s cocaine

dealing, and Briseno offered to sell cocaine to

Quinones. At some point, Quinones did purchase

drugs from Briseno and his associate Sergio Salinas.

The trial court excluded this testimony as it ruled that

it did not have a close enough connection with the

crime.

iii. Detective Richard Solarz Proffer

Finally, Smith sought to introduce the testimony

of Detective Richard Solarz, who was a K-9 handler.

Detective Solarz would have testified that the day

after the shooting, he conducted a search of the

Burrito Express with a narcotic-sniffing dog. During

the search, the dog detected the possible presence of

narcotics inside a desk drawer and a cabinet in the

Burrito Express. This testimony was also excluded

because it did not have a close enough connection with

the crime.

iv. Houghtaling’s and Collett’s Testimony

The State indicated its intention to call

Houghtaling and Collett to testify. In response, Smith

sought to exclude the testimony, as the State knew

that both men would deny that Smith was involved.

Rather, the State was only calling them in order to

introduce their out-of-court statements implicating

Smith. The trial court overruled Smith’s objections.

B. The State’s Evidence at Trial

46a

i. Eduardo Pardo’s Testimony

Eduardo Pardo testified that he worked as a cook

at the Burrito Express. He was at work on March 6,

2001, when, at 7:15 p.m., two men wearing black

masks that left only their eyes uncovered entered the

restaurant. One of the men carried a gun. At the time,

Briseno and Pardo were working in the back of the

restaurant and there were no customers or any other

individuals inside. The man with the gun entered the

back of the restaurant first and pointed the gun at

Briseno and Pardo. Pardo, who spoke limited English,

did not understand what the man with the gun said.

Briseno raised the knife he had been using to prepare

food and chased the two men out of the restaurant.

Pardo was close behind in pursuit.

At some point during the chase, Pardo testified

that he observed Briseno stop and talk to someone in

a passing car, but he was unable to hear what Briseno

said. For a period, Pardo lost sight of both masked

men. When he regained visual contact with one of the

men, he observed that the man was wearing a green

jacket. That man was not the man carrying the gun.

After the masked man in the green jacket slipped and

fell backwards on a patch of ice, Pardo was able to

catch up to him. He then removed the man’s mask.

Although it was dark outside, Pardo testified that he

got a good look at the man’s facial features. Pardo

alerted Briseno that he had apprehended one of the

masked men. Briseno directed Pardo to take the man

back to the Burrito Express and call the police.

Holding the man in the green jacket from behind,

Pardo began to walk him back toward the restaurant.

Briseno rejoined Pardo at this point. Then, the man

47a

with the gun reappeared, raised his mask to just

above his eyebrows, and fired two shots in Briseno

and Pardo’s direction. The man with the gun then

came closer to Briseno and Pardo and began shooting

again. Pardo testified that he heard Briseno make an

“aah” sound and saw him spit blood from his mouth.

However, Pardo was unable to see if Briseno spit

blood on the man wearing the green jacket. After

seeing Briseno spit up blood, Pardo released the man

in the green jacket from his grasp and ran back to the

Burrito Express to call the police.

While Pardo was calling the police, he observed

Briseno holding the man in the green jacket in front

of him and using him as a human shield as the man

with the gun kept shooting. After completing the call,

Pardo came back outside. Both masked men had fled

the scene. Briseno was left face down on the ground.

Pardo observed a substantial amount of blood coming

from Briseno’s mouth. Notably, Pardo never saw a

third man.

Later that evening, Pardo spoke with the police

and described the faces of the two masked men. The

resulting images showed clean-shaven young males.

At trial, Pardo was shown People’s Exhibit 66 (Ex. 96,

Dkt. No. 1-12), which was the green jacket

Houghtaling wore the night of the crime. When asked

whether the green jacket looked like the one worn by

one of the masked men, Pardo replied in the

affirmative. Yet, when Pardo first spoke with the

police, he described the jacket as having some black,

but only around the collar area. By contrast,

Houghtaling’s jacket only had a small black patch just

below the collar but did have numerous areas of black

48a

elsewhere on the jacket. Moreover, Pardo told the

police that the green jacket had no pockets and no

zipper going up the front of the jacket. Houghtaling’s

jacket had both of these features. On crossexamination, Pardo could not recall the description he

gave to police the night of the shooting. He testified

that he told the police the truth, but he was also

scared at the time. Smith later called the officer who

took Pardo’s statement the night of the shooting in

order to perfect his impeachment of Pardo’s

identification of the green jacket. However, when

Smith asked about how Pardo described the jacket in

his police interview, the State objected and the trial

court sustained the objection.

Despite seeing both the shooter and the man in

the green jacket’s uncovered faces, Pardo was never

able to identify Smith or Houghtaling as being

involved in the shooting. Indeed, while working with

the sketch artist, and then on a separate occasion two

days after the shooting, Pardo was shown a

photographic lineup—a lineup that contained Smith,

Houghtaling, and Collett’s photos. He did not identify

any photo as an individual involved in the shooting.

ii. Lieutenant Gary Wigman’s Testimony

The McHenry police department officer in charge

of the crime scene was Lieutenant Gary Wigman. At

trial, he testified that police officers went over the

crime scene “with a fine tooth comb,” using metal

detectors and magnets to search for the murder

weapon or bullet casings. (App., Ex. 22 at R006219–

20, Dkt. No. 1-9.) Nonetheless, the police were unable

to recover any potential murder weapon that they

49a

could link to Smith or Houghtaling. Nor did they

recover any physical evidence tied to Smith or his

alleged accomplices.

While observing Briseno’s autopsy, Wigman

noted a laceration and abrasion on Briseno’s upper

forehead. He testified that, pursuant to the John Reid

interviewing

technique,2

some

information

concerning the investigation was withheld from the

public. This was done to assess the credibility of the

individuals who came forward to the police with

information about the crime. In this instance, the

police withheld the fact that Briseno had sustained a

head wound and that Pardo had seen Briseno yelling

into a passing car. That information was withheld

from the public until it was disclosed in testimony at

McMullan’s 2002 trial. By contrast, the public was

informed that the men wore ski masks and that

Briseno struggled with one of the men in the parking

lot. Smith attempted to question Wigman on the John

Reid method of interrogation, but the trial court

sustained the State’s objection on relevance grounds

because Wigman did not conduct the relevant

interviews in which the method was used.

Wigman also testified why the police believed

that the shooter used a revolver. An automatic

firearm ejects bullet casings after firing, whereas a

revolver does not. Having found no bullet casings in

the vicinity of the shooting, the police concluded that

the shots came from a revolver.

2 Wigman testified that John Reid is a school in the Chicagoland

area that “teaches investigators how to properly interview

people.” (App., Ex. 26 at R006882, Dkt. No. 1-11.)

50a

When asked whether the police received

information concerning the DeCicco Group’s possible

involvement, Wigman confirmed that they did. He

said he received a call on November 16, 2001 from

Vicki Brummett, Dallas DeCicco’s mother, who said

she believed that she possessed the gun used in the

Burrito Express shooting. The police recovered a .22caliber revolver from Brummett’s home and sent it to

the state police for testing. That revolver matched the

characteristics of the gun used in the shooting.

During his testimony, Wigman conceded that none of

the physical evidence collected at the crime scene was

connected to Smith or any of his purported

accomplices.

iii. Forensic Testimony

Several forensic witnesses testified at trial. First,

Joanne McIntyre, an Illinois State Police firearms

expert, testified that the bullet from Briseno’s body

was a .22-caliber long rifle bullet with six lands and

grooves. She was able to fire ten test shots with the

revolver recovered from Brummett, examine the

bullets she fired, and compare them with the bullet

recovered from Briseno’s body. Based on her tests,

McIntyre testified that she could not exclude the

Brummett gun as having fired the bullet that killed

Briseno, although she was unable to conclude that it

was the murder weapon.

The forensic pathologist that performed Briseno’s

autopsy testified about his findings. He stated that

there was a laceration on Briseno’s head that was

consistent with being pistol whipped with the barrel

of a gun. The injury was not consistent with a fall. A

51a

forensic scientist with the Illinois State Police that

specialized in latent fingerprint examination testified

that the fingerprints lifted from the Burrito Express

door and a set of door knobs did not match the

standards provided by Smith, Houghtaling, Collett,

and McMullan.

iv. Justin Houghtaling’s Testimony

Over Smith’s objection, (renewed after being

overruled at pre-trial proceedings), the State called

Houghtaling to testify. In his direct testimony,

Houghtaling denied that he and Smith were involved

in the shooting. When asked what time he, Smith,

Collett, and McMullan went to the Burrito Express on

March 6, 2001, Houghtaling testified that they never

went to the restaurant on that date. He further stated

that he had only known Smith for about three weeks

prior to March 6. Houghtaling knew Smith because

Smith was dating McMullan at the time, and

McMullan lived across the street from Houghtaling.

Houghtaling testified that on the night of March

6, Smith and McMullan came to Houghtaling’s house

and picked him up. They then went to pick up Collett.

Together, the group traveled to McMullan’s friend’s

house in Wisconsin because McMullan wanted to

borrow her friend’s laptop computer. They then

returned to McHenry, where they stopped at a “head”

shop known as Cloud 9. From there, they went to

Smith’s friend Jimmy Wiesenberger’s house, where

they remained the rest of the night.

In response to Houghtaling’s denial of

involvement, the State asked him whether he had

52a

pleaded guilty to first-degree murder. Houghtaling

admitted that he had, and that he was sentenced to

twenty years’ imprisonment in connection with the

Burrito Express shooting. Then, over Smith’s

objection, the State admitted evidence of

Houghtaling’s prior inconsistent statements.

a) Houghtaling’s May 12, 2001 Interrogation in

Omaha, Nebraska

A transcript from Houghtaling’s May 12, 2001

interrogation in Omaha was read into the record, and

the jury heard the audio. Houghtaling testified that

he was high on hallucinogenic drugs at the time.

During the interrogation, Houghtaling told the police

that on the night of March 6, 2001, he, Smith,

McMullan,

and

Collett

were

drinking

at

Weisenberger’s house behind the Burrito Express.

While Smith and Houghtaling were smoking a joint

outside, Houghtaling recalled Smith saying

something similar to “come with me, I want to go do

something.” (App., Ex. 137 at 1, Dkt. No. 1-19.)

Houghtaling then followed Smith to the Burrito

Express.

The interviewers then began asking Houghtaling

a series of leading questions regarding face coverings.

One asked him if he wore a ski mask, to which

Houghtaling replied that he could not remember.

Following up, the interviewer asked if Houghtaling

had his face concealed. Houghtaling replied that he

did. Houghtaling agreed when asked if he concealed

his face with some kind of hat. The question was then

refined to “[w]ith a mask that goes over the face?” to

53a

which Houghtaling replied in the affirmative. (Id. at

2.)

Houghtaling said that Smith entered the Burrito

Express first. He stated that only Smith was carrying

a gun, and the gun was “a little .22.” (Id. at 3.) When

asked who was in the restaurant upon their entry,

Houghtaling replied “[s]ome dude behind the counter

and a few other people, nah, I I can’t remember.” (Id.

at 3.) Smith then went up to a man behind the counter

and demanded money. In response, Houghtaling

stated that the owner grabbed a knife and chased him

and Smith outside. He was unsure of the size of the

knife, describing it as not “little but it was not huge

like a regular filet knife or something.” (Id. at 4.) The

knife wielded by Briseno was in fact a large butcher

knife, a fact that the interviewers knew at the time.3

Then, the interviewers asked Houghtaling if anybody

other than the owner was chasing them, and

Houghtaling replied “not that I know of.” (Id.)

Houghtaling was unable to describe how he was

grabbed and held during the course of his escape. He

did say that once he heard gunfire, “the dude let go of

me and I ran. I was scared.”4 (Id. at 5.) Again,

Houghtaling was asked if there was an additional

person chasing him and Smith. He replied “That could

An officer who reported to the scene of the crime in the

immediate aftermath of the shooting testified that he observed a

“large butcher knife, approximately six inches long” lying next

to Briseno’s body. (App., Ex. 21 at R005781, Dkt. No. 1-8.)

3

This was contradicted by Pardo’s testimony that after he

released the unarmed man in the green jacket and went inside

to call 911, Briseno used that man as a human shield, while the

armed man continued shooting.

4

54a

be, I can’t, it happened so long ago and I don’t

remember. I’m not a hundred per cent [sic] positive,

but it could be.” (Id. at 6.)

After he fled, the interviewers asked if anybody

was waiting in a getaway car for Smith and

Houghtaling. Houghtaling said he did not recall

escaping to a car, and instead he believed that they

all met back at the house. Later, he stated that upon

further thought, he and Smith did run to a getaway

car after the shooting, and that McMullan and Collett

were in the car. One of the interviewers suggested

that the four then went to Cloud 9. Houghtaling

agreed. When they arrived at Cloud 9, Houghtaling

stated that Collett went inside and the others waited

in McMullan’s car. The interviewers informed

Houghtaling that witnesses placed him at

Weisenberger’s house following the shooting, which

Houghtaling confirmed. He also said that Smith

planned the robbery. He explained that they

discussed the robbery in the car on the way to

McHenry, as well as at Weisenberger’s house.

The interviewers asked about Houghtaling’s

attire that night. They asked him if he had borrowed

someone’s jacket, to which he replied that he

borrowed a green jacket from Collett. Houghtaling

further stated that he did not see a wound on

Briseno’s forehead. When asked to describe the gun

used to shoot at Briseno, Houghtaling said that it

“looked like a revolver.” (Id. at 18.) Yet, he was unable

to explain the difference between a revolver and an

automatic. After one of the interviewers drew pictures

of a revolver and an automatic, they asked him to pick

55a

the one depicting a revolver. Houghtaling selected the

automatic.

b) Houghtaling’s April 3, 2002 Testimony at

Jennifer McMullan’s Trial

Also introduced was Houghtaling’s testimony at

Jennifer McMullan’s trial. He testified that his

testimony was uncoerced and made of his own free

will. On the day of the shooting, Houghtaling stated

that he and Smith discussed the robbery at

Houghtaling’s house. There, Smith gave Houghtaling

a ski mask. They put those masks on prior to entering

the Burrito Express.

Houghtaling testified that Smith entered the

Burrito Express first and he was carrying a gun in his

hand. There were two people inside the restaurant,

none of them customers. Smith aimed his gun at

Briseno and demanded that he give them money.

Instead of complying, Briseno picked up a knife and

chased Smith and Houghtaling outside. As he ran

away, Houghtaling slipped and was grabbed by

Briseno and Pardo. The two then dragged him back to

the restaurant. While he was seized, one of the men

grabbed his mask. Shots were then fired. Houghtaling

could see Smith firing the shots. After the last shot

was fired, Houghtaling testified that he could feel a

jerk. Briseno then fell, and Pardo ran to the

restaurant. When he was released from Briseno’s

grasp, Houghtaling fled. Upon meeting up with

McMullan and Collett, McMullan suggested that they

go to Cloud 9 for an alibi.

56a

c) Houghtaling’s August 13, 2008 Testimony at

Smith’s Second Trial

Houghtaling also testified at Smith’s second trial.

On direct, Houghtaling stated that he and Smith put

on masks and entered the Burrito Express at around

7:21 p.m. Upon entry, a gun-wielding Smith

announced that the restaurant was being robbed.

Briseno then picked up a knife and chased Smith and

Houghtaling outside. During the chase, Houghtaling

slipped on ice, which allowed Briseno and Pardo to

catch up with him and grab him. Briseno and Pardo

began wrestling with Houghtaling. As Houghtaling

attempted to escape, Pardo put a knife to his throat.5

At this point, Smith started shooting. Houghtaling

then felt a jerk and was released from both Briseno

and Pardo’s grasp. He ran to McMullan’s car, where

both McMullan and Collett were waiting for him.

Smith was not with them at this point, and

Houghtaling testified that he was not aware where he

went. Yet, Houghtaling also testified that when he

returned to McMullan’s car, he asked Smith whether

he was “fucking out of your mind,” to which Smith

replied, “I did what I had to do.” (App., Ex. 21 at

R005879–80.) The group then went to Weisenberger’s

house and stayed there overnight. Houghtaling stated

that he was wearing a green jacket that night.

Immediately on cross-examination, Houghtaling

recanted his entire direct testimony, other than the

fact that he wore a green jacket the night of March 6,

5 Houghtaling’s testimony that Briseno and Pardo wrestled with

him and that Pardo put a knife to his throat does not match

Pardo’s own testimony from the third trial.

57a

2001. He stated that he had been forced to lie “because

[the State] want[s] to convict Kenny Smith for a crime

he didn’t commit, none of us committed.” (App., Ex. 13

at R003474–75, Dkt. No. 1-4.) He also reported that

the State threatened to revoke his plea agreement if

he did not give testimony inculpating Smith.

Moreover, he stated that he learned the details he

testified to from newspaper articles and discovery. On

redirect, Houghtaling conceded that he had not

negotiated any plea with the State at the time of his

Omaha interrogation.

d) Justin Houghtaling’s Cross-Examination at

the Third Trial

During cross-examination, Houghtaling testified

that neither he nor Smith was involved in the

shooting or the attempted robbery. He also claimed

that he was high on hallucinogenic drugs during his

May 12, 2001 Omaha interrogation. While much of

the interrogation was taped, Houghtaling spoke with

the police roughly fifteen minutes before the tape

recorder was turned on. During this time,

Houghtaling told the officers he had taken drugs that

day. In addition, the officers (falsely) informed

Houghtaling that Smith, McMullan, and Collett had

already been charged and given statements. They

promised Houghtaling that if he told them what

happened, they would help him out. Once they turned

the tape recorder on, the officers began asking

Houghtaling a number of leading questions.

As to the facts that Houghtaling recounted in his

police interview, Houghtaling testified that he

learned those facts through newspaper articles and

58a

word of mouth. However, when Smith attempted to

ask additional questions about where he learned each

specific fact he recounted in the interview, the State

objected on the basis of hearsay and foundation. The

trial court sustained the objection. It did allow Smith

to explain that Houghtaling would have testified that

he learned the following items from press or word of

mouth prior to his Omaha interrogation:

That the police thought that the shooting was

about 7:20 p.m.; that the police thought that there

were two young men involved. The police thought

that one man had a handgun; that the police

thought that both went into the store; that the

police thought that both were wearing black ski

masks with eye holes; that the police thought that

Mr. Briseno was in the Burrito Express with one

employee; that the police thought that Mr.

Briseno was using a butcher knife at the time;

that the police thought masked men ordered

Briseno to give them money.

...

That the police thought that Mr. Briseno and the

employee chased two men out of the restaurant;

that the police thought that Mr. Briseno caught

one of the masked men outside the restaurant;

that the police thought Mr. Briseno struggled

with one of the masked men in the parking lot;

that the police thought Mr. Briseno was shot by

another masked man. I would also ask Mr.

Houghtaling whether he understood that the

possibility that Mr. Briseno had been pistol

59a

whipped was in the public, and he would testify

that he understood that was not in the public.

(App., Ex. 21 at R006039–40.) Despite defense counsel

submitting as evidence news articles that were

published about the Burrito Express shooting prior to

Houghtaling’s Omaha interrogation reflected the

relevant facts he recounted in that interrogation, the

court reiterated that it would sustain the objection. It

insisted that for each fact from the interrogation,

Houghtaling must supply details as to what

newspaper or person he learned the fact from and

when he learned that fact in order for his testimony

to be admissible.

In addition, Houghtaling stated that prior to his

testimony in McMullan’s trial, he prepared with

representatives from the State, who refreshed his

recollection. Moreover, when he testified at Smith’s

second trial, he had access to police and forensic

reports. And due to his recantation on crossexamination, Houghtaling was charged with perjury

and voluntarily pleaded guilty to that charge and was

sentenced to an additional term of five-and-a-half

years’ imprisonment. He recognized that he could

again be charged with perjury after his testimony at

Smith’s third trial, but he said “I’m tired of lying. The

truth has to come out sooner or later.” (Id. at

R006028–29.)

Smith also sought to elicit testimony from

Houghtaling that he was called to testify against

Houghtaling in the first trial but refused because

Smith was not involved in the shooting. The State

60a

objected on relevance grounds and the trial court

sustained the objection.

v. Detective Sergeant William Brogan’s Testimony

William Brogan was a detective sergeant with the

McHenry Police Department and was one of the

officers who interrogated Houghtaling in Omaha.

Brogan stated that he did not ask Houghtaling if he

was on drugs that day but testified that he showed no

signs of being under the influence. On crossexamination, Brogan testified regarding his training

in the John Reid interrogation technique. A John Reid

interview seeks to elicit information to corroborate a

confession, which can take two forms: (1) independent

corroboration where the subject supplies information

unknown to the investigator that can be verified (i.e.

the location of an unrecovered murder weapon); or

(2) dependent corroboration, which involves a suspect

demonstrating knowledge of facts about a crime that

the police have withheld from the public. However,

Brogan testified that Houghtaling supplied police

with no facts that provided either independent or

dependent corroboration of his confession in the

Omaha interrogation.

Brogan also testified about the information that

the police released to the public. The publicly

disclosed information included that: the shooting

occurred at 7:20 p.m. at the Burrito Express, two men

were involved and one had a handgun, the two men

wore black ski masks with eyeholes; Briseno and

Pardo were in the restaurant at the time of the

robbery attempt; the masked men demanded that

Briseno give them money; Briseno and Pardo chased

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the men out of the restaurant; Briseno wielded a knife

as he chased the men; during the pursuit, Briseno

caught one of the masked men; while Briseno was

struggling with the man he caught, the other masked

man shot him. Not publicly disclosed was the wound

on Briseno’s head and the fact that Briseno had yelled

something to a passing car.

In addition, Brogan testified that in Omaha, the

police had spoken to Houghtaling for fifteen minutes

before they began recording the interview. During

this fifteen-minute period, Houghtaling denied his

involvement in the shooting until police falsely told

him that Smith, McMullan, and Collett had been

charged, and that Houghtaling could help himself if

he gave a statement. He further admitted that much

of Houghtaling’s statement was first suggested

through the use of leading questions asked by the

other interrogator. He also conceded that

investigators should avoid the use of leading

questions.

vi. David Collett’s Testimony

During pre-trial proceedings, Smith’s objection to

David Collett’s testimony was overruled. He renewed

his objection when the State called Collett at trial.

Again, the trial court overruled the objection. On

direct, Collett testified that he had “no clue” who

attempted to rob the Burrito Express. (App., Ex. 23 at

R006406, Dkt. No. 1-9.) When asked why he pleaded

guilty to being involved in the robbery, Collett

testified that it was a “plea of convenience.” (Id. at

R006407.) He also stated that his lawyer advised him

that the reduced charge offered to him in exchange for

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his plea could reduce his term of imprisonment or

cause him to avoid it altogether. Then, over Smith’s

objection, the State was allowed to introduce a

statement directed at Briseno’s widow that Collett

gave at his sentencing hearing:

I’d just like to say that I’m—no, no apology,

nothing I can possibly say can help the victims

with what they’re dealing with, but I can offer my

apologize—apology. I really—if I would have

known that any of this would have happened, I

really would have tried to do something to stop it,

but, honestly, I mean, I really didn’t think

anything like that would have happened—was

going to happen. If the judge, if your Honor, if you

see fit to grant me probation, I will follow through

with it completely and to the Court’s satisfaction.

I would just like to apologize again to the victims

for their loss. Thank you.

(Id. at R006408–09.) Collett admitted making this

apology but denied that it was because he was

remorseful for what he did. Instead, the apology was

only for the grief that Briseno’s widow was going

through.

On the evening of March 6, 2001, Collett

explained that he was with Smith and Houghtaling.

He had only known Smith for a couple of months at

that point. McMullan picked the three of them up and

drove them to Wisconsin to pick up a laptop from

McMullan’s friend. On the drive back to McHenry,

Houghtaling and Collett got into an argument

because Houghtaling would not return his green

jacket. McMullan pulled the car over and Collett

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exited the car. He then walked to Weisenberger’s

house. When nobody was home, Collett walked to

Cloud 9. While he was walking, he heard a noise that

sounded like a car backfiring. Surveillance video

showed Collett entering Cloud 9 at 7:38 p.m. and

leaving at 7:44 p.m. After leaving, he got into

McMullan’s car. In the car were McMullan, Smith,

and Houghtaling. He observed no evidence that Smith

and Houghtaling had just been involved in a bloody

crime. Together, they drove to Weisenberger’s house

where they remained through the night. Collett

testified that he never discussed the Burrito Express

incident with Smith, Houghtaling, or McMullan.

Over Smith’s objection, the State asked Collett

about a statement he made to police on May 12, 2001.

It asked whether he told the police that he heard

gunshots as he was walking behind the Burrito

Express and up to Weisenberger’s backyard. Collett

said that it was possible that he said this, but it was

taken out of context. Rather, he said that while it

sounded like a car backfiring, it could have been

gunshots. He was not sure as he had never heard a

gunshot before. Collett was also asked whether he

told police on May 12, 2001 that when he got into

McMullan’s car, Smith told him that some kids robbed

the Burrito Express. Collett admitted that he possibly

could have told police that. Finally, he was asked

about his May 12, 2001 statement to the police that,

when the group was at Weisenberger’s house, Collett

asked Smith about what happened at the Burrito

Express and Smith responded, “just had some fun.”

(Id. at R006421.) He stated that he probably said that

if that was what was written down.

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C. Smith’s Defense at Trial

At the conclusion of the State’s case, Smith moved

for a directed verdict, arguing that the evidence failed

to prove Smith was guilty beyond a reasonable doubt.

That motion was denied. In his defense, Smith sought

to demonstrate that the State had no evidence linking

him or his purported accomplices to the crime scene.

More importantly, Smith introduced evidence that

implicated the DeCicco Group in the crime.

i.

McHenry Police

Testimony

Department

Officers’

Detective

Richard

Solarz

interviewed

Houghtaling at the McHenry police station on March

7, 2001. Houghtaling wore the green jacket to the

station. Solarz testified that he did not observe any

blood stains on the jacket or any signs that

Houghtaling had been involved in a shooting or

struggle. Sergeant Michael Brichetto of the McHenry

County Major Investigations Assistance Team

testified that he interviewed Pardo on March 8, 2001.

He showed Pardo a photo array that included photos

of Smith, Collett, Weisenberger, and Houghtaling.

Pardo could not point to any photographed individual

as being involved in the incident.

ii. James “Jimmy” Weisenberger’s Testimony

Jimmy Weisenberger was the man resided in the

home where Smith, Houghtaling, McMullan, and

Collett spent the night of March 6, 2001. They arrived

at Weisenberger’s home sometime after the police

arrived at the scene of the crime at the Burrito

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Express. Before their arrival, Weisenberger observed

police activity around the Burrito Express. When the

four arrived, he observed Houghtaling wearing a

green jacket. He did not see any blood or scratches on

any of them. When he rode with Collett in McMullan’s

car to buy beer, he did not see any blood, masks,

bullets, or a gun in the car. On cross-examination,

Weisenberger was asked over Smith’s objection

whether he had used any drugs in the past, and

whether Smith, Houghtaling, and Collett were

smoking marijuana on the night of March 6, 2001. He

responded that he smoked marijuana as a teenager

and tried other drugs, and that Smith, Houghtaling,

and Collett were smoking marijuana at his house that

night.

iii. Patrick Anderson’s Testimony Regarding

Rusty Levand’s Confession

Patrick Anderson lived in McHenry in 2001 and

was friends with Rusty Levand. He also knew

Levand’s then-girlfriend Dallas DeCicco. While

incarcerated in the McHenry County jail in July of

2011, Anderson reconnected with Levand, who was a

fellow inmate. Levand eventually told Anderson of his

involvement in the Burrito Express shooting. He

stated that he and DeCicco’s cousin, Adam Hiland,

attempted to rob the restaurant. When Briseno

chased them out of the restaurant and grabbed

Hiland, Levand fired his gun over his shoulder and

struck Briseno. Briseno bled from his wound onto

Hiland. After Hiland called for help, Levand ran over

to Hiland and Briseno and hit Briseno over the head

with his gun. Levand and Hiland then fled to

DeCicco’s car and the three drove to Levand’s

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mother’s house to clean up. There, they also burned

the masks and the clothing they were wearing and

unsuccessfully attempted to clean up the bloody

backseat of DeCicco’s car. Several months later,

Levand stole DeCicco’s car and burned it somewhere

in Wisconsin.

iv. Susanne “Dallas” DeCicco’s Confessions

a) DeCicco’s 2005 Confession to the Police in

Quincy

Dallas DeCicco participated in a videotaped

interview with Sergeant Doug Vandermaiden of the

Quincy, Illinois Police Department. Vandermaiden

was called to testify. He stated that he was a patrol

officer with the Quincy Police Department in

November of 2005. In that capacity, he first came into

contact with DeCicco after he suspected her of retail

theft. However, he soon came to believe that she had

some involvement in the Burrito Express shooting.

In the interview, DeCicco stated that she, her

boyfriend Levand, and her cousin Hiland had

committed the crime. It occurred the day her sister

went into labor, which she said was March 5, 2001.

The DeCicco Group went to the hospital, but DeCicco

sent Levand and Hiland to her mother’s house to get

the maternity bag. Levand and Hiland drove

DeCicco’s car and were gone for one-and-a-half hours,

even though the trip should have taken no longer

than thirty minutes. When the two returned, they

were acting funny. After departing the hospital, the

DeCicco Group went to DeCicco’s biological father’s

house. There, Levand and Hiland started going

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through her car’s trunk. Inside the trunk was a

revolver wrapped in a towel. She identified the gun as

her stepfather, David Brummett’s revolver. Then,

Levand and Hiland left, talking about snatching

purses or robbing somebody for money. After twenty

minutes, DeCicco got in her car and began looking for

them. She found them near the Burrito Express

where she saw them run into the restaurant, and then

run back out followed by two men who worked there.

As the four of them ran across the street and in front

of her car, one of the men turned around and yelled

something into DeCicco’s car.

DeCicco continued to drive and returned to her

father’s house. While she was in the driveway, she

heard six gunshots. Soon thereafter, Levand and

Hiland ran out from the woods behind the house.

Hiland’s face was covered in blood and he had a cut

on his hand. The two got into DeCicco’s car and she

drove them away. Levand threw the gun on the back

seat, and Hiland tried to clean it. The DeCicco Group

then drove to Levand’s grandmother’s house and

disposed of either a scarf or gloves. Then, they drove

to DeCicco’s mother Vicki Brummett’s house. There,

Hiland put their soiled clothes in a bag and burned

them the next day. Hiland and Levand cleaned the

gun and pulled Briseno’s hair from it. While at

Brummett’s home, Levand told DeCicco that one of

the men at the Burrito Express threw a knife at him

and Hiland, at which point the two ran out of the

restaurant. Levand also recounted that one of the

employees caught Hiland and dragged him across the

parking lot. That is when Levand panicked and began

shooting. His final shot hit Briseno, at which point

Levand heard Briseno let out a groan and saw him

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spit up blood on Hiland. Briseno continued to attempt

to fight back. He raised his knife and struggled with

Hiland until Levand came up and hit Briseno on the

head. DeCicco told her sister about the incident. Her

sister told their mother. In turn, their mother called

the police, who subsequently collected the gun.

DeCicco stated that she did not contact the police

because she was fearful that Levand and Hiland

might physically retaliate against her. Months later,

DeCicco’s car was stolen. She said that Levand and

Hiland took her car and drove it to Wisconsin where

they burned it due to the bloodstains on the back seat.

By stipulation, Smith introduced evidence showing

that DeCicco’s car was found on June 27, 2001, in

Racine, Wisconsin. The car had been completely

burned and destroyed.

b) DeCicco’s 2006 Confession

About two months later, DeCicco again confessed;

this time to Sergeant Virgil Schroeder of the Illinois

State Police. Schroeder testified that in January

2006, he and a partner interrogated DeCicco, who at

that time was incarcerated for retail theft. They

interviewed her at the State’s request.

During this confession, DeCicco stated that the

shooting occurred on either March 5 or 6, 2001. She

mentioned for the first time that Levand and Hiland

both wore masks when they entered the Burrito

Express. When later asked why Levand or Hiland had

to clean blood off his face despite wearing a mask,

DeCicco stated that Levand wore a mask and Hiland

wore a scarf over his face. She also stated that Hiland

had Briseno’s blood on his face and the blood dripped

69a

onto his shirt. DeCicco was asked how she knew that

Levand and Hiland had a gun when they were at her

biological father’s house. She stated that she saw

them looking through her car’s trunk but did not

actually see the gun. Instead, she only saw the gun

later, both when Levand and Hiland entered the

restaurant and then when Levand ran toward her car.

DeCicco specifically pointed out to her

interrogators that Briseno was hit in the head with a

gun. After this confession, the officers told DeCicco

that they did not believe her story and offered to give

her an out if she recanted. Instead, she insisted that

“it happened and I’m willing to step forward.” She

offered to take a polygraph. She further related that

Hiland told her that he saw an attorney because he

was fearful of being prosecuted after Brummett

turned over the weapon used to commit the crime to

police.

c) DeCicco’s Confession to Her Mother

Vicki Brummett, DeCicco’s mother was called to

testify. She stated that on March 6, 2001, she

returned home from the hospital where her other

daughter had given birth. On her way home, she saw

police around the Burrito Express. Upon arriving

home, she saw DeCicco, Levand, and Hiland in the

basement. Before the shooting, Hiland did not have

scratches on his body. But now he had scratches on

his hands and knees. When asked whether anybody

in her household owned a firearm, Brummett stated

that her husband owned a handgun that he kept in

the bedroom closet wrapped in a blue towel. Sometime

70a

in November 2001, she turned that gun over to the

police.

Also around November 2001, DeCicco confessed

her involvement in the Burrito Express shooting to

Brummett. Brummett testified that DeCicco told her

that the night of March 6, 2001, DeCicco had driven

to pick up Levand and Hiland and found them

standing outside the Burrito Express. She watched

them run inside, and subsequently run out. One of the

men who ran out after Levand and Hiland ran in front

of DeCicco’s car and yelled for her to call the police.

DeCicco said she then drove home. DeCicco also told

her mother that the gun used in the shooting belonged

to Brummett’s husband. In addition, DeCicco

mentioned that one of the men was hit in the head

with the gun, which left a crack in the barrel. At the

time, the fact that Briseno had a head wound

resulting from a being hit with a gun was not public

information.6

d) DeCicco’s Confessions to Her Friends

Three of DeCicco’s friends were called to testify

regarding confessions that DeCicco made to them.

Brittany Tyda was a childhood friend of DeCicco’s

who testified that DeCicco confessed to her about the

Burrito Express shooting in October 2001. Tyda had

invited DeCicco and Levand to her apartment. There,

DeCicco tearfully told Tyda about the shooting.

Specifically, she told Tyda that she saw Levand and

6 Wigman testified that at the time he obtained the Brummett

gun in November 2001, the issue of Briseno’s head injury had

not appeared in the press or otherwise been publicly disclosed.

(App., Ex. 26 at R006922.)

71a

Hiland attempt to rob the Burrito Express. When a

knife-wielding store manager grabbed Hiland, Hiland

yelled for Levand’s help. Levand responded by

shooting the manager.

During that same visit, Tyda heard DeCicco

arguing with Levand. At some point in the argument,

DeCicco told Levand that if he went to the police

about DeCicco writing bad checks, she would tell the

police that he shot someone. Within a year of the

shooting, Tyda spoke with the police about DeCicco’s

confession.

DeCicco also confessed to her sister (and Hiland’s

cousin), Elizabeth Schwartz. Schwartz testified that

DeCicco had visited her in the hospital on March 6,

2001, the day after she had given birth to her

daughter. About three weeks later, DeCicco told

Schwartz that Hiland had been involved in the

shooting at the Burrito Express. Schwartz told her

mother about DeCicco’s confession. She further

testified that in the week following the shooting, she

noticed cuts on Hiland’s hands and bruises on his

arm.

Sometime around Christmas 2005, DeCicco

confessed to her half-sister, Carly Rexford. While

DeCicco was at Rexford’s home, she told Rexford that

she had confessed to the police that she had been

involved in the Burrito Express shooting. Specifically,

she said that Hiland and Levand took her stepfather’s

gun and used it during an attempted robbery of the

restaurant. However, during an altercation between

Briseno and Hiland, Levand shot Briseno. DeCicco

also told Rexford that Levand had threatened to

72a

punish her if she ever told anybody that she was

involved in the crime. Rexford testified that when she

visited Schwartz at the hospital on March 6, 2001,

DeCicco was there as well.

v. Adam Hiland’s Confessions

a) Hiland’s Confession to R. Daniel Trumble

A friend and former roommate of Hiland, R.

Daniel Trumble, was called to testify about

confessions Hiland made to him. Over the summer of

2002, Hiland had three conversations with Trumble

in which he confessed to being involved in the Burrito

Express shooting. During the first conversation,

Hiland was drinking with Trumble when he told

Trumble that the wrong people were arrested for the

shooting. Trumble testified that Hiland confessed

that he was involved in the shooting along with

Levand and DeCicco. While the three of them had

only intended to rob the restaurant, the situation

“had gone wrong” after one of the restaurant workers

pulled a knife. (App., Ex. 25 at R006735, Dkt. No. 110.) As a result, Levand shot him. Trumble further

stated that Hiland was shaking and crying during the

confession.

Following this initial confession, Trumble advised

Hiland to speak to a defense attorney. Trumble

testified that he accompanied Hiland to see an

attorney and was present when Hiland confessed to

the attorney. However, the State objected to

Trumble’s testimony regarding the visit to the

attorney on relevance grounds. Smith’s counsel made

an offer of proof that Trumble would testify that he

73a

arranged a meeting with an attorney named Ed

Edens. Hiland and Trumble met with Edens at a

restaurant in 2002, and Hiland made inculpatory

statements to the attorney in Trumble’s presence.

Edens then told Hiland that he should not come

forward because other arrests had been made in

connection with the shooting. The court sustained the

State’s objections and permitted Trumble to testify

only that he heard Hiland confess again. It did not

allow Trumble to make any reference to the lawyer or

the circumstances surrounding that meeting.

Accordingly, Trumble testified that a few days after

Hiland’s first confession, he had a second

conversation about the shooting with Hiland at a

restaurant. Hiland was sober and repeated the

confession he gave earlier. Then, on the drive home

from the restaurant, Hiland explained that since

someone else was arrested he was not going to turn

himself in. Trumble never went to the police with this

information.

b) Hiland’s Confession to Gina Kollross

Hiland also confessed to his adoptive sister, Gina

Kollross. Kollross testified that Hiland once lived

with her, and that she also knew DeCicco and Levand.

She stated that a few days after the shooting, she

noticed that Hiland’s hands were bandaged. When

she asked him what happened, he said he slipped on

some icy stairs. Then, a week or two later, Hiland told

Kollross that he and Levand had attempted to rob the

Burrito Express. When the owner chased them with a

knife and targeted Hiland’s arm and hand, Levand

shot the owner in order to free Hiland.

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c) Hiland’s Confession to Charlene McCauley

Hiland’s birth sister, Charlene McCauley,

testified that she lived with Hiland, DeCicco, Levand,

and Schwartz at the Brummett residence in March

2001. McCauley stated that on occasions, the DeCicco

Group would pick the lock to enter the Brummetts’

bedroom. The day after the shooting, McCauley said

she saw Hiland with bandages on his forearm. He told

her that he had slipped on icy stairs.

Shortly before Christmas 2001, McCauley

testified that Hiland confessed his involvement in the

Burrito Express shooting to her. Hiland told her that

the DeCicco Group was at DeCicco’s father’s house

and smoking crack in the garage on the night of the

shooting. When they ran out of drugs, they decided to

rob the Burrito Express to obtain more money.

However, after Levand and Hiland went inside, the

owner and an employee chased them out of the

restaurant and continued to pursue them outside.

One of the men grabbed Hiland and struggled with

him. Levand shot the man. Following his confession,

McCauley testified that Hiland appeared depressed,

ashamed, and relieved.

d) Hiland’s Confession to Elizabeth Schwartz

In addition to testifying that DeCicco confessed to

her, Elizabeth Schwartz also stated that her cousin,

Hiland, confessed to her. His confession occurred two

or three months after the shooting while Schwartz

and Hiland were in a van outside a restaurant near

the Burrito Express. Hiland resisted exiting the van,

became fidgety, irritable, and panicked. Schwartz

75a

looked at Hiland and said “[s]he wasn’t lying, was

she?” (App., Ex. 25 at R006781.) Hiland asked what

she meant, and Schwartz responded that DeCicco had

told her that he had been involved in the Burrito

Express shooting. An angry Hiland replied that

DeCicco “is a fat fucking bitch and she can’t keep her

mouth shut. She needs to keep her mouth shut.” (Id.)

The two then drove away. During the drive,

Hiland told Schwartz that the DeCicco Group had

been smoking crack the night of the shooting. After

they ran out of drugs, Hiland and Levand decided

they would rob the Burrito Express. DeCicco dropped

Hiland and Levand off at the restaurant. The two

went inside but were chased out by two men.

Schwartz testified that one of them got ahold of

Hiland and tried to stab him with a knife. During the

ensuing struggle, Hiland grabbed the knife and cut

his hand. Levand then shot the man with the knife

and ran up and hit him in the head with the gun. She

later clarified that she did not remember if Levand hit

Briseno with the gun first, or if he shot him first.

DeCicco then picked up the two afterwards. Schwartz

reported seeing Hiland with cuts and scrapes the

week following the shooting. She also conceded that

her sister, DeCicco, was not always truthful with

others.

D. The State’s Rebuttal

The State sought to rebut Smith’s evidence

showing that it was the DeCicco Group, rather than

Smith, Houghtaling, Collett, and McMullan that were

involved in the shooting. Each member of the DeCicco

Group was called to testify.

76a

i. Rusty Levand’s Testimony

Levand testified to his relationship with Patrick

Anderson. He stated that Anderson is an

acquaintance and confirmed that they were

incarcerated together in the McHenry County jail

from June 6 through June 11, 2011. However, Levand

denied confessing to Anderson and denied being

present at the Burrito Express on the night of the

shooting.

ii. Dallas DeCicco’s Testimony

The State called DeCicco. At the outset of her

testimony, she confirmed that she had convictions for

retail theft, obstruction of justice, and possession of

prescription medication. She also acknowledged that

she had dated Levand for a few years. DeCicco then

stated that she lied to the Quincy police in November

2005. She said that she believed the police would let

her go on the shoplifting charges if she provided them

with a confession in a murder. It did not cross her

mind that confessing her involvement in a murder

could potentially increase the time she was

incarcerated. DeCicco explained away her confession

to the Illinois state police, stating that “[i]t just

somehow made sense to me that if I just lied a little

longer, I’d be able to get out and deal with it later.”

(App., Ex. 26 at R006958.) As to her other confessions

to family, DeCicco testified that the story was initially

a joke between her and her sister, Schwartz.

Moreover, she told the story to her mother because

she was a heroin addict and thought if she confessed

her involvement in the shooting, she could get money

for drugs. DeCicco was not asked about and did not

77a

explain the reason for her other confessions to her

friends.

In addition, DeCicco provided no explanation as

to how she learned of the unreleased details of the

crime. DeCicco stated that while she followed details

of the shooting in the news, she denied having read

police reports relating to it. Over Smith’s objection,

the State impeached DeCicco with a statement from

her testimony in an earlier proceeding in which she

said she saw police reports.

iii. Adam Hiland’s Testimony

At the time of the trial, Hiland was in custody for

fleeing and eluding the police. He also had numerous

other convictions including attempted burglary,

possession of a controlled substance, and aggravated

battery. The State did not ask Hiland about his

involvement in the Burrito Express shooting or

attempted robbery. Instead, it simply asked whether

Hiland had ever been cut with a knife on his hands or

arms, to which Hiland answered in the negative.

While Hiland did have a scar on his hand, he testified

the scar came from a recent incident where he was

injured running from the police.

IV. The Verdict and Smith’s Appeal

On February 29, 2012, following twenty-one

hours of deliberation over three days, the jury

returned a verdict of guilty on both the first-degree

murder count and the attempt robbery count. The

jury concluded that Smith personally discharged the

gun that killed Briseno. On April 26, 2012, Smith was

78a

sentenced to sixty-seven years’ imprisonment on the

first-degree murder charge along with a concurrent

seven years’ imprisonment sentence for attempt

armed robbery.

Smith appealed, arguing that the State did not

have sufficient evidence for a jury to find that he was

guilty beyond a reasonable doubt of the charged

crimes. In addition, Smith challenged several of the

court’s rulings excluding certain defense evidence,

arguing that those exclusions violated his

constitutional right to present a complete defense. He

also challenged other evidentiary rulings as violating

his Sixth Amendment Confrontation Clause rights

and his Fourteenth Amendment due process right to

a fair trial. The Appellate Court rejected all of Smith’s

challenges and affirmed both convictions.

DISCUSSION

Smith now seeks federal habeas relief under 28

U.S.C. § 2254(d). That statute, as amended by the

Antiterrorism and Effective Death Penalty Act of

1996 (“AEDPA”), does not allow an individual in

custody pursuant to a state court judgment to obtain

a writ of habeas corpus unless

the adjudication of the claim . . . (1) resulted in a

decision that was contrary to, or involved an

unreasonable application of, clearly established

Federal law, as determined by the Supreme Court

of the United States or (2) resulted in a decision

that

was

based

on

an

unreasonable

determination of the facts in light of the evidence

presented in the State court proceeding.

79a

28 U.S.C. § 2254(d).

In the present matter, Smith only seeks relief

pursuant the first subsection of § 2254(d). Under

§ 2254(d)(1), a state court decision is “contrary to”

clearly established federal law when “the state court

applies a rule different from the governing law set

forth in Supreme Court cases.” McCarthy v. Pollard,

656 F.3d 478, 483 (7th Cir. 2011) (internal quotation

marks and alterations omitted). Alternatively, a state

court decision is an “unreasonable application” of

clearly established federal law where “the state court

correctly identifies the governing legal principle from

Supreme Court decisions but unreasonably applies it

to the facts of the particular case.” Id. (internal

quotation marks and alterations omitted). “The focus

of the reasonableness inquiry is on whether the state

court’s application of clearly established federal law is

objectively unreasonable, not whether it applied

clearly established federal law correctly.” Id. In

undertaking the AEDPA analysis, the habeas court

considers “the decision of the last state court to rule

on the merits of the petitioner’s claim.” Id. Here, with

one exception,7 that is the most recent decision of the

Appellate Court. See People v. Smith, No. 2-12-0508,

2013 WL 2382284 (Ill. App. Ct. May 29, 2013)

(unpublished Ill. Sup. Ct. Rule 23 order).

I. Sufficiency of the Evidence

7 As discussed below in Section II.C.i.d, the Appellate Court last

addressed the merits of the admission of Briseno’s autopsy

photos on Smith’s appeal of the verdict in his second trial.

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Smith first challenges the Appellate Court’s

decision affirming his convictions as contrary to, and

an unreasonable application of, the United States

Supreme Court’s decision in Jackson v. Virginia, 443

U.S. 307 (1979). In essence, he claims that there was

insufficient evidence for a jury to find him guilty

beyond a reasonable doubt. Under AEDPA, habeas

relief may be granted “only if the Illinois Appellate

Court applied the Jackson standard unreasonably to

the facts of [the] case.” Jones v. Butler, 778 F.3d 575,

581–82 (7th Cir. 2015).

In In re Winship, 397 U.S. 358, 364 (1970), the

United States Supreme Court confirmed that the

Constitution requires that an accused be protected

against conviction unless his guilt is proven beyond a

reasonable doubt. Then, in Jackson v. Virginia, 443

U.S. at 321, the Supreme Court held that Winship

makes clear that a state prisoner has a cognizable

federal habeas claim when he alleges that the

evidence in support of his state conviction was

insufficient to allow a rational trier of fact to find guilt

beyond a reasonable doubt. The Supreme Court

emphasized, however, that a habeas court is not to

“ask itself whether it believes that the evidence at the

trial established guilt beyond a reasonable doubt.” Id.

at 318–19 (internal quotation marks omitted).

Rather, “the relevant question is whether, after

viewing the evidence in the light most favorable to the

prosecution, any rational trier of fact could have

found the essential elements of the crime beyond a

reasonable doubt.” Id. at 319.

The Seventh Circuit has since clarified that a jury

verdict cannot be overturned for insufficiency of the

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evidence unless “the record contains no evidence,

regardless of how it is weighed, from which the jury

could find guilt beyond a reasonable doubt.” United

States v. Huddleston, 593 F.3d 596, 601 (7th Cir.

2010). Moreover, the reviewing court must defer to

the jury’s credibility determinations. United States v.

Duran, 407 F.3d 828, 839 (7th Cir. 2005). Even when

raised on a direct appeal, the standard of review when

a defendant challenges the sufficiency of the evidence

supporting his conviction has appropriately been

described as “a daunting one.” Huddleston, 593 F.3d

at 601 (internal quotation marks omitted).

Smith has made a compelling argument that the

jury had insufficient evidence to find him guilty

beyond a reasonable doubt. Indeed, the State had no

forensic evidence inculpating Smith, nor was he

affirmatively identified by the sole eyewitness to the

crime. The only physical evidence the State presented

connecting Smith to the crime was the green jacket

worn by Houghtaling that Pardo identified as the

same one worn by the masked man without a gun.

Instead, the State’s main evidence of Smith’s guilt

came in the form of Houghtaling’s since-recanted

confessions during the Omaha interrogation,

McMullan’s trial, and Smith’s second trial. The most

obvious problem with that confession is that

Houghtaling no longer stands by it. Indeed, at Smith’s

second trial, Houghtaling set out a story

incriminating Smith and then immediately admitted

its falsity on cross-examination and further asserted

that the State forced him to lie to convict Smith for a

crime he did not commit. By the time he recanted,

there was no benefit to Houghtaling to lie; he had

already pleaded guilty and been sentenced for his

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supposed role in the shooting. And his recantation

came at great personal cost to Houghtaling because

by doing so, he admitted to perjury. That admission

resulted in him being sentenced to an additional fiveand-a-half years in prison. Those circumstances

suggest that his recantation is far more reliable than

his supposed confessions.

Moreover, there are reasons to doubt the

reliability of Houghtaling’s previous confessions.

During the Omaha interrogation, Houghtaling

testified that he was under the influence of drugs. A

recording of that interrogation lends credence to his

claim, as he sounds confused and disoriented, and

takes long pauses before answering questions.

Houghtaling further testified that the police obtained

his cooperation by lying to him that Smith, McMullan,

and Collett had already been charged and given

statements. One of his interrogators, Brogan,

confirmed that testimony. Houghtaling’s Omaha

interrogation also occurred two months after the

murders, giving him ample opportunity to learn about

the facts of the murder and recite a story that

accorded with those facts. See Ticey v. Peters, 8 F.3d

498, 503 (7th Cir. 1993) (“[I]f a significant amount of

time passes between a crime and a statement, a

greater opportunity exists for a witness to fabricate a

story and an identification.”). Indeed, not a single fact

Houghtaling recounted in that Omaha police

interview was unknown to the public. Many other

facts he recounted were wrong. For example, he said

there were a few other people at the Burrito Express

when he and Smith entered, when in fact Briseno and

Pardo were the only people there. And Houghtaling

also claimed that only Briseno was chasing him and

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Smith even though Pardo has consistently stated that

he joined Briseno in chasing the masked men as well.

Furthermore, the interrogating officers used leading

questions to adduce many of the correct facts.

Despite

the

apparent

unreliability

of

Houghtaling’s Omaha statement, the State used it to

form the core of its case against Smith and his

purported accomplices. This alone casts doubt on the

reliability of Houghtaling’s subsequent testimony at

McMullan’s trial and Smith’s second trial. Yet that is

not the only reason the reliability of his subsequent

testimony should be questioned. Most significantly,

Houghtaling had an incentive to lie because by

promising to testify against Smith and McMullan, he

received a reduced twenty-year sentence instead of a

maximum sixty-year sentence. Furthermore, for his

trial testimony, he had the benefit of reviewing nearly

everything in the State’s file, such as police reports

and witness statements, allowing him to tailor his

story to be consistent with the available evidence.

While the Court agrees with Smith that the prior

inconsistent statements—and the State’s primary

evidence—suffer a troubling lack of reliability, it

cannot agree that the Appellate Court erred in

affirming the admission and use of those statements.

As an initial matter, the Court cannot overturn even

an erroneous state evidentiary ruling on habeas

review when it does not result in the denial of a

specific constitutional right. See Anderson v. Sternes,

243 F.3d 1049, 1053 (7th Cir. 2001). While it is true

that the Seventh Circuit has established a test for

evaluating whether the admission of a witness’s prior

inconsistent statement violates due process and has

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applied it in the habeas context, see Ticey, 8 F.3d 498,

it did so in a case decided before AEDPA. AEDPA now

requires that the decision be contrary to or an

unreasonable application of federal law as

determined by the Supreme Court. And Smith cannot

point to an equivalent Supreme Court decision. See

United States ex rel. Wilson v. McAdory, No. 00 C

1957, 2004 WL 524435, at *5 (N.D. Ill. Mar. 10, 2004)

(“Wilson points to no Supreme Court precedent that

clearly establishes that it violates due process to

admit into evidence the prior inconsistent statements

of witnesses who change their stories at trial when

those witnesses are available for cross-examination

by the defendant. Indeed, Supreme Court precedent

suggests just the opposite.”). Moreover, Smith is

incorrect when he asserts that for Jackson purposes,

a guilty verdict cannot be based solely on a prior

inconsistent statement. Rather, so long as a prior

inconsistent statement is reliable, it can, by itself,

support a conviction. Ticey, 8 F.3d at 503–04. While

Smith persuasively contests the reliability of

Houghtaling’s prior inconsistent statements, he does

not challenge the constitutionality of their admission.

Absent some constitutional grounds for doing so, this

Court cannot overturn on collateral review the state

court’s finding that the testimony was reliable and

therefore admissible—no matter how questionable

that ruling may have been. The cases Smith cites to

as showing that a court can overturn a conviction

based on a single prior inconsistent statement were

heard on direct review and thus not subject to

AEDPA’s highly deferential standard of review. See

United States v. Orrico, 599 F.2d 113 (6th Cir. 1979)

(direct appeal); United States v. Bahe, 40 F. Supp. 2d

85a

1302 (D.N.M.

acquittal).

1998)

(motion

for

judgment

of

Not only does Smith point out numerous flaws in

the State’s main evidence against him, he points to

persuasive evidence that the DeCicco Group

committed the crime for which he was convicted.

Specifically, all three members of the DeCicco Group

each independently confessed to their involvement in

the events of the evening of March 6, 2001. DeCicco

and Hiland, in particular, confessed their

involvement multiple times. DeCicco confessed to at

least six people over the course of five years, including

twice to the police. Hiland confessed to at least four

people over a two-year period. And a fellow inmate

reported that Levand confessed his involvement over

ten years later while the two were incarcerated

together. Importantly, their confessions contained

non-public facts concerning the crime that police had

withheld in order to corroborate potential confessions.

For example, DeCicco knew both that Briseno yelled

something into a passing car and that one of the

masked men hit Briseno on the head with his gun.

Similarly, Hiland stated that Levand had hit Briseno

on the head with his gun. On the other hand, none of

Houghtaling’s confessions supplied these details.

Furthermore, there were other details concerning

the DeCicco Group that are consistent with the

physical evidence and testimony in the case. Pardo

testified that one of the masked men had slipped and

fallen on ice during the pursuit. And two individuals

who had encountered Hiland in the days following the

shooting observed that his hands and forearms were

bandaged, and another noticed that he had cuts and

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scrapes on his body. By contrast, Weisenberger, who

had seen Smith, Houghtaling, Collett, and McMullan

on the night of the crime, testified that he saw no

blood or scratches on any of them. Both Levand and

DeCicco’s confessions also provided explanations as to

the lack of physical evidence. Specifically, each

explained that the DeCicco Group had burned their

bloody clothes and that DeCicco’s car was taken to

Wisconsin and burned. Notably, DeCicco’s car was, in

fact, found in Wisconsin where it had been destroyed

by burning.

In the Court’s view, the evidence of the DeCicco

Group’s involvement is highly compelling if not

conclusive. At the very least, the Court is confounded

as to how that evidence could not give a rational jury

reasonable doubt as to Smith’s guilt. Especially in

combination with the exceedingly thin evidence

supporting Smith’s convictions, the Court is

concerned that a miscarriage of justice has occurred

here. Yet, Smith faces the twin obstacles imposed by

Jackson and AEDPA. Unfortunately, there are

situations where “judges will . . . encounter

convictions that they believe to be mistaken, but they

must nonetheless uphold.” Cavazos v. Smith, 565 U.S.

1, 2 (2011). Such is the case here. So long as the record

is not “devoid of evidence” of a habeas petitioner’s

guilt, the Court reads the governing Supreme Court

and Seventh Circuit precedent as constraining it from

weighing the evidence or second guessing the jury.

United States v. Smith, 576 F.3d 681, 686 (7th Cir.

2009). Here, the jury had evidence in the form of

Houghtaling’s recanted confession along with one

additional piece of evidence linking Smith to the

crime—the green jacket worn by Houghtaling and

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identified by Pardo as the same green jacket worn by

one of the masked men. Accordingly, the Court must

deny Smith’s habeas petition to the extent it argues

that his convictions were based on insufficient

evidence.

II. Evidentiary Challenges

As an alternative to the reversal of his

convictions, Smith asks that this Court vacate his

convictions so that he can be retried. According to

Smith, such habeas relief is warranted because the

Appellate Court affirmed the exclusion of certain

evidence in violation of his due process right to

present a complete defense. In addition, the Appellate

Court incorrectly found that the trial court did not

violate his rights under the Confrontation Clause of

the Sixth Amendment by limiting his crossexamination of certain witnesses. Even if those errors

were harmless, Smith argues that, considered

together, they deprived him of his right to a

fundamentally fair trial.

A. Exclusion of Evidence Bearing on the

DeCicco Group’s Involvement

“Few rights are more fundamental than that of an

accused to present witnesses in his own defense.”

Chambers v. Mississippi, 410 U.S. 284, 302 (1973).

Accordingly, the Supreme Court has held that,

“[w]hether rooted directly in the Due Process Clause

of the Fourteenth Amendment, or in the Compulsory

Process or Confrontation clauses of the Sixth

Amendment,” criminal defendants are guaranteed “a

meaningful opportunity to present a complete

88a

defense.” Crane v. Kentucky, 476 U.S. 683, 690 (1986)

(internal quotation marks and citations omitted). At

the same time, “state and federal rulemakers have

broad latitude under the Constitution to establish

rules excluding evidence from criminal trials.”

Holmes v. South Carolina, 547 U.S. 319, 324 (2006).

Yet, that latitude has limits. Id. Thus, where an

evidentiary rule infringes on a criminal defendant’s

right to present a complete defense and is “arbitrary

or disproportionate to the purposes [it is] designed to

serve,” the rule must yield. Id. at 324–25 (internal

quotation marks omitted).

Smith argues that the trial court violated his

right to present a complete defense when it excluded

testimony that would have supported his defense that

the DeCicco Group committed the crime. Part of the

right to present a complete defense is the ability for a

defendant to submit evidence showing that someone

else committed the crime. Id. at 327. Smith contends

that the trial court violated his right by excluding

testimony probative of the DeCicco Group’s

connection to and motive for robbing the Burrito

Express, as well as testimony showing that Hiland

confessed his involvement to an attorney.

As an initial matter, the Court must resolve

whether it reviews the exclusion of testimony de novo

or under AEDPA’s standard of review. AEDPA’s

highly deferential standard of review only applies to

federal claims that were “adjudicated on the merits in

State court proceedings.” See 28 U.S.C. 2254(d); Cone

v. Bell, 556 U.S. 449, 472 (2009). Where the state

court does not reach the merits of a federal

constitutional issue, AEDPA’s standard of review

89a

gives way and the federal claim is reviewed de novo.

Cone, 556 U.S. at 472. Specifically, the court is to

“dispose of the matter as law and justice require.”

Harris v. Thompson, 698 F.3d 609, 623 (7th Cir. 2012)

(quoting 28 U.S.C. § 2243). However, “[w]hen a

federal claim has been presented to a state court and

the state court has denied relief, it may be presumed

that the state court adjudicated the claim on the

merits in the absence of any indication or state-law

procedural principles to the contrary.” Harrington v.

Richter, 562 U.S. 86, 99 (2011). Moreover, AEDPA

deference “does not require the state court to have

expressly considered federal law, much less to have

cited to Supreme Court precedent.” Makiel v. Butler,

782 F.3d 882, 905 (7th Cir. 2015).

Here, Smith argues that de novo review is

warranted because the Appellate Court only

addressed state evidence law and cited to state cases

in affirming the evidentiary exclusions. Yet, this is

not entirely true, as the Appellate Court made explicit

reference to Chambers v. Mississippi, 410 U.S. 284, in

affirming the exclusion of certain testimony. See

Makiel, 782 F.3d at 905 (declining to review state

court decision de novo where the state court cited

Chambers). Furthermore, “there are circumstances in

which a line of state precedent is viewed as fully

incorporating a related federal constitutional right.”

Johnson v. Williams, 568 U.S. 289, 298 (2013). And

many of the state court cases cited by the Appellate

Court in denying Smith’s evidentiary challenges

address the constitutional right to present a complete

defense, and some explicitly incorporate Chambers.

See, e.g., People v. Cruz, 643 N.E.2d 636, 650 (Ill.

1994); People v. Neely, 540 N.E.2d 931, 933 (Ill. App.

90a

Ct. 1989). While the Appellate Court did not explicitly

address all Smith’s federal claims, it did enough such

that it should be presumed to have done so. See Lee v.

Avila, 871 F.3d 565, 571 (7th Cir. 2017) (“We’ve

explained that under Richter and Williams, the state

courts must be given the benefit of the doubt when

their opinions do not cover every topic raised by the

habeas corpus petitioner.” (internal quotation marks

omitted)). Consequently, AEDPA’s standard applies.

i. Exclusion of Testimony Regarding Briseno’s

Drug Dealing

The trial court excluded testimony from Anderson

and two law enforcement officers that would have

shown that Briseno was a drug dealer who kept drugs

and cash at his restaurant and that Levand knew of

that fact, because the testimony did not have a close

enough connection with the crime. The Appellate

Court affirmed the exclusions, finding that the

proffered evidence did not bolster the admitted

evidence because it was not entirely consistent with

that evidence and would have confused the jury as to

the proper focus of the trial.

The Court finds that the Appellate Court’s

conclusion that evidence of Briseno’s drug dealing

activities did not bolster Smith’s evidence of the

DeCicco Group’s involvement was unreasonable.

Briseno’s drug dealing was highly probative in

establishing a motive for the DeCicco Group to rob the

Burrito Express and bolsters the motive evidence that

had been admitted. As the Appellate Court

recognized, the admitted evidence “reflected that the

DeCicco [G]roup had been doing drugs on the day of

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the shooting, ran out of drugs, and allegedly decided

to go out and commit a crime to obtain cash so that

they could purchase more drugs.” Smith, 2013 WL

2382284, at *34. Incredibly, the Appellate Court

found that the admitted testimony that members of

the DeCicco Group were considering stealing money

to buy drugs was not consistent with the proffered

testimony concerning the presence of drugs at Burrito

Express because the DeCicco Group sought only to

steal money so they could later buy drugs. Of course,

it should be obvious that people who are seeking to

steal money for the express purpose of buying drugs

would find a restaurant that they believed to contain

both money and drugs to be an extremely attractively

target. Yet, the Appellate Court defied reason and

logic in essentially concluding that the DeCicco Group

was willing to steal money to purchase drugs but

could not possibly have contemplated cutting out that

middle step and just stealing the drugs.

Indeed, the presence of drugs at the Burrito

Express is highly probative motive evidence for the

DeCicco Group. Their ultimate goal was to obtain

drugs. Based on the admitted evidence, the jury could

as easily conclude that the DeCicco Group would

snatch a purse as they would rob a restaurant. The

excluded testimony that Briseno sold drugs from the

Burrito Express and one of the DeCicco Group knew

it would have bolstered the narrative link bringing

together the DeCicco Group, their desire for drugs,

and the robbery of the Burrito Express. See Old Chief

v. United States, 519 U.S. 172, 187 (1997) (“Evidence

. . . has force beyond any linear scheme of reasoning,

and as its pieces come together a narrative gains

momentum, with power not only to support

92a

conclusions but to sustain the willingness of jurors to

draw the inferences, whatever they may be, necessary

to reach an honest verdict. This persuasive power of

the concrete and particular is often essential to the

capacity of jurors to satisfy the obligations that the

law places on them.”). Even crediting the Appellate

Court’s explanation that the DeCicco Group simply

was looking for money, Anderson would have testified

that he told Levand that Briseno kept large amounts

of cash at the Burrito Express. And, given their

knowledge that Briseno dealt drugs from the Burrito

Express, the DeCicco Group likely would have

believed that they would find more money there than

at the average restaurant. Cf. United States v.

Lawrence, 788 F.3d 234, 242 (crediting expert

testimony that large amounts of cash are associated

with drug trafficking); United States v. Sewell, No. 11CR-35-TLS, 2013 WL 6237986, at *8 (N.D. Ind. Dec.

3, 2013) (noting that large amounts of cash is evidence

consistent with large-scale drug dealing). Faced with

a man sentenced to 67 years in prison on an extremely

thin evidentiary basis, the Appellate Court’s

conclusion that this evidence was not relevant was

unreasonable.

Further, the Court cannot find that the risk of

confusing the jury by directing its attention to

Briseno’s drug dealing justifies the exclusion of

important evidence regarding the DeCicco Group’s

motive to rob the Burrito Express. First, the Court is

not convinced that such testimony carries a

significant risk of directing the jury’s focus away from

the murder and to Briseno’s drug dealing. Indeed, the

Appellate Court makes no attempt to even explain

how that the excluded evidence could induce the jury

93a

to decide the case on an improper basis. The primary

issue before the jury was whether Smith,

Houghtaling, McMullan and Collett or the DeCicco

Group committed the crime. Briseno’s drug dealing

goes to that issue and would not induce the jury to

deviate from “their true task: deciding defendants’

guilt or innocence.” United States v. Trent, 863 F.3d

699, 705 (7th Cir. 2017). In addition, the Appellate

Court seemed to disparately apply the evidentiary

rules in a way that substantially disfavored Smith.

See Kubsch v. Neal, 838 F.3d 845, 858 (7th Cir. 2016)

(noting that a court cannot exclude evidence “in an

arbitrary manner in the case at hand. Arbitrariness

might be shown by a lack of parity between the

prosecution and defense”). Whereas the trial court

excluded evidence of Briseno’s drug dealing, it

admitted evidence concerning Smith’s drug use.

While the Appellate Court found that the admission

of evidence concerning Smith’s drug use was harmless

error, it then inconsistently insisted that the highly

probative evidence of Briseno’s drug dealing was so

powerful that it would confuse the jury as to the

issues in the case. Such disparate rulings underscore

how the Appellate Court unfairly favored the

prosecution and undermined Smith’s ability to

present a complete defense.

Moreover, it was unreasonable for the Appellate

Court to conclude that the exclusion was harmless

error that did not substantially prejudice Smith

because the testimony would have been cumulative of

admitted testimony regarding the DeCicco Group’s

various confessions. “When reviewing a state-court

judgment in a habeas corpus proceeding, we ask

whether the error ‘had substantial and injurious

94a

effect or influence in determining the jury’s verdict.’”

Rhodes v. Dittman, 903 F.3d 646, 665 (7th Cir. 2018)

(quoting Fry v. Pliler, 551 U.S. 112, 116 (2007)). For

an error to have a substantial influence on the jury’s

verdict it is not enough that there was a “reasonable

possibility that the error was harmful.” Davis v.

Ayala, 135 S. Ct. 2187, 2198 (2015) (internal

quotation marks omitted). Rather, the defendant

must actually be prejudiced by the error. Id. The

Appellate Court failed to recognize the important

ways in which the proffered testimony bolsters the

narrative surrounding the DeCicco Group’s

confessions by providing further context for their

motive. The admitted confession evidence did not

supply a motive for robbing the Burrito Express. And

without such evidence, the jury was left to wonder

exactly why either the DeCicco Group or Smith and

his friends would believe that a burrito restaurant

with no customers at dinner time would be a lucrative

target for a robbery. Smith should have been able to

introduce the testimony to complete his narrative of

the DeCicco Group’s actions and present a complete

defense. His inability to do so leaves this Court with

a “grave doubt about whether [the] error of federal

law had a ‘substantial and injurious effect or

influence in determining the jury’s verdict.’” Id. at

2198 (quoting O’Neal v. McAninch, 513 U.S. 432, 436

(1995)). Thus, the Appellate Court’s conclusion that

there was no constitutional violation on account of the

exclusion was an unreasonable application of Holmes,

Crane, and Chambers.

ii. Exclusion of Testimony Regarding Hiland’s

Confession to a Lawyer

95a

While the trial court allowed Trumble to testify

that Hiland confessed to him, it sustained the State’s

objection to Trumble’s testimony that he was present

when Hiland repeated the confession to a defense

attorney. Specifically, it allowed Trumble to testify

that he heard Hiland confess again but prevented

Trumble from testifying that it was in front of a

criminal defense attorney. The Appellate Court

affirmed the exclusion, finding that the fact that the

confession was made in front of an attorney did not

imbue the confession with trustworthiness.

The Appellate Court’s decision was based on its

application of Illinois case law finding inadmissible as

hearsay an extrajudicial declaration by a declarant

that he committed a crime rather than the defendant

on trial, and the attendant exception admitting such

hearsay where justice requires. See, e.g., People v.

Bowel, 488 N.E.2d 995, 999 (Ill. 1986). Yet, as the

Appellate Court recognized, there are no hard and

fast requirements for against-penal-interest hearsay

to be considered reliable. See People v. House, 566

N.E.2d 259, 289 (Ill. 1990). Moreover, the Illinois case

law relies heavily on the Supreme Court’s decision in

Chambers v. Mississippi. And the Supreme Court’s

core holding in that case was that where testimony

was critical to the accused’s defense and

“constitutional

rights

directly

affecting

the

ascertainment of guilt are implicated, the hearsay

rule may not be applied mechanistically to defeat the

ends of justice.” Chambers, 410 U.S. at 302. Yet, that

is exactly what the Appellate Court did here to

exclude the fact that Hiland confessed in front of a

defense attorney. It mechanistically applied a single

factor for reliability it derived from one Illinois case,

96a

People v. Human, 773 N.E.2d 4, 11 (Ill. App. Ct. 2002),

to insist that the information must make it more

likely that Hiland would be prosecuted and refused to

entertain Smith’s contentions as to why the fact that

the confession occurred in front of a defense attorney

made it more reliable.8

Although the fact that Hiland confessed in front

of an attorney might not have made it more likely that

he would be prosecuted, the Court nonetheless finds

that it provides important context to his confession

and enhances its reliability. In asking the jury to

disregard the DeCicco Group’s various confessions,

the State sought to convince the jury that each

member was simply lying. And certainly, a jury could

believe that confessions to friends and family could

simply be the tall tales of drug addicts or attempts to

prove their toughness. Indeed, at one point, the State

suggested that Hiland confessed to his sister

McCauley in an attempt to convince her to give him

money for drugs. (App., Ex. 25 at R006762–64.)

8 The Appellate Court’s citation to cases applying the against-

penal-interest exception to the rule against hearsay to justify its

affirmance of the exclusion of the fact that Hiland confessed in

front of an attorney is particularly non-sensical given that the

actual fact of confession was admitted. Yet, the exception

concerns the admissibility of the confession rather than the

details that render it reliable. Specifically, “[w]here there are

sufficient indicia of trustworthiness” of the confession, it may be

admissible under the exception. House, 566 N.E.2d at 289. Thus,

under the Appellate Court’s logic, the trial court could reach the

paradoxical conclusion that the fact of the confession was

trustworthy enough to be admitted even though pertinent

contextual details surrounding the confession did not imbue the

confession with trustworthiness such that they were relevant.

97a

However, the fact that Hiland sought out a defense

attorney tends to show how seriously he took the legal

jeopardy he was facing on account of the acts to which

he confessed. That Hiland took the affirmative step to

seek out legal counsel adds important context to that

particular confession and enhances its credibility.

Thus, the Appellate Court was simply wrong to

conclude that the fact that Hiland confessed to a

defense attorney did not enhance the credibility of the

confession.

Even if the trial court erred in preventing

Trumble from testifying that Hiland confessed to a

defense attorney, the Appellate Court stated that the

error would have been harmless. It reasoned that the

jury had already heard from DeCicco that Hiland had

spoken to an attorney out of fear of being prosecuted

for his role in the Burrito Express shooting. Omitted

from DeCicco’s testimony was the fact that Hiland

confessed his involvement to the attorney. It should

be obvious that one who fears prosecution would seek

legal counsel regardless of whether he actually

committed the crime of which he is accused. The fact

that Hiland confessed to that attorney provides

critical detail as to the purpose of his meeting with an

attorney that DeCicco’s testimony did not supply.

Moreover, the Appellate Court’s erred in conflating

corroborative testimony with cumulative testimony.

“[T]estimony of additional witnesses cannot

automatically be categorized as cumulative and

unnecessary.” Crisp v. Duckworth, 743 F.2d 580, 585

(7th Cir. 1984). While DeCicco provided only a

hearsay recollection of the fact, Trumble’s excluded

testimony would have been direct testimonial

evidence that Hiland sought legal counsel for his

98a

involvement in the Burrito Express robbery. These

two independent sources, taken together, strengthen

the factual assertion that Hiland, in fear of legal

jeopardy, actually sought out a defense attorney. And

evidence that adds significant weight and credibility

to evidence already in the record is not merely

cumulative. See Washington v. Smith, 48 F. Supp. 2d

1149, 1164 (E.D. Wis. 1999). In preventing Smith

from eliciting from Trumble that he witnessed Hiland

confess in front of an attorney, the trial court

hindered Smith’s ability to present a complete

defense. The Appellate Court’s conclusion to the

contrary was an unreasonable application of clearly

established federal law.

B. Limitations on Cross-Examination

The Sixth Amendment to the United States

Constitution gives an accused the right “to be

confronted with the witnesses against him.” U.S.

Const. amend. VI. A criminal defendant’s

confrontation rights include more than simply “being

allowed to confront the witness physically.” Davis v.

Alaska, 415 U.S. 308, 315 (1974). Rather, the

Supreme Court has held that “[t]he main and

essential purpose of confrontation is to secure for the

opponent the opportunity of cross- examination.” Id.

at 315–16 (internal quotation marks omitted). “Crossexamination is the principal means by which the

believability of a witness and the truth of his

testimony are tested.” Id. at 316. Of course, “trial

judges retain wide latitude insofar as the

Confrontation Clause is concerned to impose

reasonable limits on such cross-examination based on

concerns about, among other things, harassment,

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

or interrogation that is repetitive or only marginally

relevant.” Delaware v. Van Arsdall, 475 U.S. 673, 679

(1986). Under the Confrontation Clause, an opponent

is guaranteed “an opportunity for effective crossexamination, not cross-examination that is effective

in whatever way, and to whatever extent, the defense

might wish.” Id. Still, the cross-examiner must be

sufficiently able to “delve into the witness’ story to

test the witness’ perceptions and memory” and also be

“allowed to impeach, i.e., discredit, the witness.”

Davis, 415 U.S. at 316.

i. Impeachment of Pardo’s Identification of Green

Jacket

Smith contends that his Confrontation Clause

rights were violated because he was not allowed to

pursue a line of questioning on cross-examination

that would discredit Pardo’s in-court identification of

the green jacket linking Houghtaling and, in turn,

Smith, to the Burrito Express shooting. During his

trial testimony, Pardo was shown the green jacket

that Houghtaling wore the night of the crime. The

jacket, which was submitted into evidence, was

predominantly green with small areas of black on the

front, and had a green collar, three large front

pockets, a front zipper with a flap covering it, and

black elbow patches. Pardo testified that the jacket

appeared to be the same jacket that was worn by the

masked man without the gun.

On cross-examination, Pardo was asked about a

description of the green jacket he gave to the police in

the immediate aftermath of the shooting. Just hours

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after the shooting, Pardo described the jacket as

having black around the collar and stated that it did

not have pockets or a zipper. Yet, at trial, Pardo

stated he could not recall giving such a description. In

order to perfect the impeachment, Smith called the

officer to whom Pardo had described the jacket that

night. That officer was prepared to confirm that Pardo

had described the jacket as having dissimilar features

to the jacket submitted into evidence. However, the

trial court precluded Smith from asking the officer

questions regarding Pardo’s earlier description of the

jacket. The Appellate Court did not even try to defend

the trial court’s decision to disallow such questioning,

and instead simply held that any error was harmless.

The trial court’s decision to preclude Smith from

perfecting his impeachment of Pardo’s identification

of the green jacket based on its erroneous

interpretation of a state evidentiary rule clearly

violated Smith’s rights under the Confrontation

Clause. The trial court seemed to think that Pardo’s

description of the jacket on the night of the shooting

was not inconsistent with his trial testimony because

Pardo did not deny his description that night, but

simply stated he could not recall it. Of course, he did

identify a jacket at trial that had several features

inconsistent with the description he gave on the night

of the shooting. A past description of the jacket as

having green around the collar and no pockets and

zipper is certainly inconsistent with a later

identification of a jacket with none of those features.

See People v. Martinez, 810 N.E.2d 199, 210 (Ill. App.

Ct. 2004) (“The prior testimony need not directly

contradict testimony given at trial to be considered

‘inconsistent,’ and is not limited to direct

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contradictions but also includes evasive answers,

silence, or changes in position.” (citations omitted)).

Neither the Appellate Court nor the State argue

otherwise. Thus, the trial court deprived Smith of an

opportunity to effectively cross-examine Pardo

regarding his identification of the jacket by

preventing him from perfecting his impeachment of

Pardo’s identification based on its misapplication of

Illinois’ rules of evidence. Without the officer’s

testimony, Pardo’s identification was not fully

impeached. See United States v. Rivas, 831 F.3d 931,

934 (7th Cir. 2016) (“A Sixth Amendment violation

occurs when cross- examination limitations . . . deny

the defendant the opportunity to elicit testimony that

would be relevant and material to the defense.”

(internal quotation marks omitted)); United States v.

Scott, 145 F.3d 878, 888 (7th Cir. 1998) (“In

determining whether the Sixth Amendment is

implicated in a cross-examination denial, we focus on

whether there was sufficient information presented to

the jury for its appraisal of the witness.”). At most, the

jury learned that Pardo could not recall his previous

description of the jacket. But it did not learn that the

jacket he described that night actually varied in a

significant manner from the jacket submitted into

evidence at trial.

While implicitly conceding error, the Appellate

Court nonetheless concluded that the trial court’s

error was harmless. The harmless error analysis

applies when a court has denied a defendant an

opportunity to impeach a witness in violation of the

Confrontation Clause. Van Arsdall, 475 U.S. at 684.

In undertaking the harmless error analysis in a

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Confrontation Clause case, courts consider a variety

of factors, including:

the importance of the witness’ testimony in the

prosecution’s case, whether the testimony was

cumulative, the presence or absence of evidence

corroborating or contradicting the testimony of

the witness on material points, the extent of

cross-examination otherwise permitted, and, of

course, the overall strength of the prosecution’s

case.

Id.

Here, the Appellate Court found that the trial

court’s error was harmless beyond a reasonable

doubt. In reaching that conclusion, it failed to address

any of the factors courts look to in determining

whether a Confrontation Clause violation is

harmless. Instead, it simply stated that the

discrepancies between Pardo’s earlier description of

the jacket and the jacket submitted to the jury were

minor. The Court disagrees with the characterization

of those inconsistencies as minor. While Pardo told

the police that the jacket had black just around the

collar area, Houghtaling’s jacket submitted into

evidence had an entirely green collar. The Appellate

Court dismissed the inconsistency by pointing out a

small black patch underneath the collar. However, a

small black embellishment underneath the back of

the collar hardly equates to black around the collar.

In addition, the Appellate Court excused Pardo’s

earlier failure to observe a zipper by noting that the

zipper on Houghtaling’s jacket was obscured by a flap.

That conclusion is more justifiable, although the flap

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itself quite visibly divides the jacket in the same

manner as a zipper. Finally, the Appellate Court

simply ignores the fact that Pardo previously stated

that the green jacket had no pockets in the front even

though the jacket viewed by the jury had three large

and easily visible front pockets. Thus, the jacket seen

by the jury had at least two significant deviations

from the jacket Pardo described to police.

The Appellate Court further asserted that the

jury was made aware of inconsistencies in Pardo’s

identification of the jacket because on direct

examination Pardo described a green jacket, but the

jurors viewed the jacket and saw areas of black.

Furthermore, the Appellate Court noted that in his

closing statement, Smith argued that Pardo could not

recall whether he told the police that the jacket had

zippers or pockets and therefore had put the issue of

Pardo’s lack of memory before the jurors. Both these

contentions simply highlight the Appellate Court’s

critical analytical error. The issue was not simply

about Houghtaling’s imperfect memory. Rather, it

was about the fact that his memory of the jacket at

trial—almost eleven years after Burrito Express

shooting—was inconsistent with his description given

just hours after the shooting. And the jury never

learned of that inconsistency. The excluded testimony

would have directly called Pardo’s trial identification

of the green jacket into question by highlighting how

it materially differed from his near-contemporaneous

description of the jacket to police.

Applying the Van Arsdall factors demonstrates

the substantial and injurious influence the trial

court’s error had on the jury verdict. First, as the sole

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available eyewitness to the crime, Pardo’s testimony

was undeniably critical to the prosecution’s case.

Similarly, his testimony was not cumulative because

Pardo was the only person who could describe the

green jacket worn by the masked man without a gun

to the jury. And not only was there no evidence

corroborating Pardo’s identification of Houghtaling’s

green jacket worn as the same one worn by one of the

masked men, but the trial court excluded the only

available evidence contradicting Pardo’s testimony

when it prohibited Smith from perfecting his

impeachment. Thus, Smith was effectively prevented

from impeaching the only eyewitness testimony

linking Houghtaling, and therefore Smith, to the

scene of the crime.

Finally, and most critically, the Court must

consider the strength of the prosecution’s case. As

explained above, the prosecution’s case against Smith

was extremely weak. Its primary evidence in support

of Smith’s guilt were Houghtaling’s recanted

confessions and the green jacket. And Pardo’s

identification of the green jacket worn was key to

tying Houghtaling and Smith to the scene of the

crime. In turn, that link easily could have led the jury

to believe Houghtaling’s confession over the DeCicco

Group’s various confessions. But without the

perfected impeachment, “the jury was left without

key facts relevant to” evaluating the credibility of

Pardo’s trial identification. Rhodes, 903 F.3d at 667;

see also Van Arsdall, 475 U.S. at 680 (holding that

there is a violation of

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