Opposition — Guzzardo v. Bengston

ffice-Suprerce Cou

No. 80-1809 Office-‘ }

am, ie OS ES ae

MAY 20 198

ates PALEXANDL RL. OTE

CLE IPK

Supreme Court of the United States

OcTOBER TERM, 1980

JOHN P. GUZZARDO,

Petitioner,

vs.

PAUL J. BERGSTON, Sheriff of Winnebago County, Illinois

and HONORABLE JOHN W. NIELSEN, Judge, 17th Judi-

cial Circuit, Winnebago County, Illinois,

Respondents.

BRIEF IN OPPOSITION TO

PETITION FOR WRIT OF CERTIORARI

TYRONE C. FAHNER,

Attorney General,

State of Illinois,

MELBOURNE A. NOEL, Jr.,

THOMAS E. HOLum,

WILLIAM M. WiIpPPOLD,

Assistant Attorneys General.

| 188 W. Randolph St., Suite 2200 .

Chicago, Illinois 60601,

(312) 793-2570,

Attorneys for Respondents.

Printed by the Authority of the State of Ilinois—5-81-40—P.O. $2447

i

QUESTIONS PRESENTED FOR REVIEW

1. Whether petitioner was denied his constitutional rights

to confrontation and cross-examination of witnesses in his trial

in the state court.

; 2. Whether the Illinois statute under which petitioner was

convicted is unconstitutionally vague.

7X

3. Whether petitioner was denied effective assistance of

counsel at trial.

li

INDEX

QUESTION PRESENTED FOR REVIEW..........00000......

NR ER phe cilia inictevebsingrndaivonesveshasdocsccsnsseoncscosaseee

I.

Il.

Il.

A.

NEITHER THE ISOLATED, UNRESPONSIVE

REMARK OF A STATE’S WITNESS NOR

THE SINGLE COMMENT IN THE PROSE-

CUTOR’S OPENING STATEMENT WAS SO

PREJUDICIAL THAT IT COULD NOT BE

CURED BY LIMITED INSTRUCTIONS TO

ITE aati iihavsncopencibdeckadatine scodusvevesesrovsccessvededs

THE ILLINOIS PANDERING STATUTE IS

NOT UNCONSTITUTIONALLY VAGUE AS

IT PROVIDED PETITIONER WITH CLEAR

NOTICE OF THE CONDUCT IT PROSCRIBES

C;

THE SEVENTH CIRCUIT COURT OF AP-

PEALS CORRECTLY FOUND THAT

PETITIONER’S TRIAL COUNSEL AG-

GRESSIVELY AND COMPETENTLY DE-

PEPE CECE BMI INIOIR anes cccsescconsncccccnesescesecesncsive

SN Ish sic ccatinssosemsstiasecesennesencseepnsoasenctians

ill

CASES CITED

Bruce v. Estelle, 483 F. 2d 1031 (Sth Cir. 1973)...

Donnelly v. DeChristoforo, 416 U.S. 637 (1974)...

Frank v. Magnum, 237 U.S. 309 (1915)...

Kentucky v. Whorton, 441 U.S. 786 (1979)............

Matthews v. United States, 518 F. 2d 1245 (7th

ee UTEP db acictsial carn cracodovones balboa iaoaelensstintetabense>

Palmer v. City of Euclid, 402 U.S. 544 (1971) .......

Papachristou v. City of Jacksonville, 405 U.S. 156

TE Vos dicks i tnigb ic laaicasabn didilaveoieeddbiebbesnnsohiasabeieeess

Schneble v. Florida, 405 U.S. 427 (1972) 0.0...

Smith v. Goguen, 415 U.S. 566 (1974) we

United States v. Akin, 562 F. 2d 459 (7th Cir.

1977), cert. denied, 435 U.S. 933 (1978) ............

United States v. Mazurie, 419 U.S. 544 (1975)...

United States v. National Dairy Products Corp.,

A te NE bait a iidsinscbckesessesouscanchenves

United States v. Powell, 423 U.S. 87 (1975)...........

United States ex rel. Bibbs v. Twomey, 506 F. 2d

1220 (7th Cir. 1974), appeal after remand, 538

F. 2d 151 (1976), cert. denied, 431 U. S. 941

TE Milas tht en chair cn usacinaedibbinhsberesinnnsaoadiins

United States ex rel. Harris v. Illinois, 457 F. 2d

Sy IN Ee PEW ivi dctirscusotavcccchnnkenkbtadibiaadsacedesons

United States ex rel. Kirk v. Petrelli, 331 F. Supp.

792 (N. D. Ill. 1971), aff'd, 492 F. 2d 1245 (7th

Bais PED Nethd hid sh cs andantiacbuncdvisbndinatdtdiasbictcinbencstnc’

United States ex rel. Ortiz v. Sielaff, 542 F. 2d 377

CPU Gal FPP Bia. adetic chavtncdeetepenksveuakcotappicorthdscovcenes

3

3

p

IN THE

Supreme Court of the Gnited States

OCTOBER TERM, 1980

JOHN P. GUZZARDO,

Petitioner,

vs.

)

PAUL J. BERGSTON, Sheriff of Winnebago County, Illinois

and HONORABLE JOHN W. NIELSEN, Judge, 17th Judi-

cial Circuit, Winnebago County, Illinois,

Respondents.

BRIEF IN OPPOSITION TO

PETITION FOR WRIT OF CERTIORARI

The respondents respectfully request that the Petition for

Writ of Certiorari to review the judgment and opinion of the

Seventh Circuit Court of Appeals entered on March 13, 1981,

be denied.

STATEMENT OF THE CASE

The statement of the case provided in the petition for writ

of certiorari together with the opinion of the Seventh Circuit

Court of Appeals and the order of the district court are

sufficient to apprise this Court of the facts as they pertain to the

issues raised in the petition.

2

Il.

REASONS FOR DENYING THE WRIT

A.

Neither the Isolated, Unresponsive Remark of a State’s Wit-

ness Nor the Single Comment in the Prosecutor’s Opening

Statement Was So Prejudicial That It Could Not Be Cured

by Limiting Instructions to the Jury.

The general rule is that federal habeas corpus is not a

proper proceeding in which to attack errors that are made at a

state trial. Frank v. Magnum, 237 U. S. 309 (1915); United

States ex rel. Bibbs v. Twomey, 506 F. 2d 1220, 1222-23 (7th

Cir. 1974), appeal after remand, 538 F. 2d 151 (1976), cert.

denied, 431 U. S. 941 (1977). Unless there is an error of such

magnitude as to deny fundamental fairness, federal habeas

corpus courts must refrain from putting themselves in the role

of reviewing courts. United States ex rel. Harris v. Illinois, 457

F. 2d 191, 198 (7th Cir. 1972).

As with many issues of Fourteenth Amendment due

process, each case must be decided on its unique facts. United

States ex rel. Kirk v. Petrelli, 331 F. Supp. 792, 794-796 (N. D.

Ill. 1971), aff'd, 492 F. 2d 1245 (7th Cir. 1974). The holdings

of the trial court and the Illinois Appellate Court that any error

committed was harmless, while not conclusive proof of harm-

lessness, have probative value towards showing that petitioner

was not deprived of his constitutional rights. Jd. at 795.

Similarly, the district court concluded that, in the context of

the case as a whole, Gulbrantson’s single statement was

unimportant. Opinion at 10. His unresponsive and ambiguous

answer to a legitimate and relevant question posed by the

prosecutor was of insufficient magnitude to vitiate an otherwise

fair trial. Cf. Schneble v. Florida, 405 U. S. 427 (1972).

Whatever prejudice that might have occurred was mitigated by

3

the court’s prompt instruction te the jury to disregard the

statement. (TR. 46) An instruction advising the jury to

disregard any questions to which objections were sustained was

also delivered at the close of testimony. (TR. 135)

The second incident on which the plaintiff relies raises a

question of prosecutorial conduct. During his opening state-

ment, the assistant state’s attorney, asserted that Linda Wooten

would testify that on a prior occasion petitioner had paid her

twenty dollars to perform an act of prostitution with another

man. Petitioner objected. (TR. 22-30) Without ever ruling on

the objection, the trial court instructed the jury that opening

statements are not evidence and that the jury must decide

whether or not a party had proved all the assertions made

during opening arguments. (TR. 30-32) When, during the

State’s case-in-chief, the prosecutor attempted to elicit from

Miss Wooten the information supporting his opening remarks,

defense counsel again objected. (TR. 58) The court sustained

this objection after counsel argued that the witness’ response

would be evidence of a prior bad act and was intended to show

defendant’s propensity to commit the offense charged. (TR.

59-65)

Alleged prejudicial statements by the prosecutor in a state

trial are not reviewable in federal court unless they are so

inflammatory and so prejudicial as clearly to deprive the

accused of a constitutionally fair trial. United States ex rel.

Kirk v. Petrelli, 331 F. Supp. 792,'794-95 (N.D. Ill. 1971),

aff'd, 492 F. 2d 1245 (7th Cir. 1974). Petitioner must establish

that the aggregate effect of the prosecutor’s remarks had “a

significant impact on the jury’s deliberations,” Donnelly v.

DeChristoforo, 416 U. S. 637, 646 (1974), and that they “most

probably infected the whole decision-making process of the

jury,” Bruce v. Estelle, 483 F. 2d 1031, 1040 (Sth Cir. 1973).

Opening statements must be evaluated in light of the

totality of the circumstances in determining whether the de-

fendant received a constitutionally fair trial. See Kentucky v.

* >

4

Whorton, 441 U. S. 786 (1979). The weight of the evidence,

the intent of the prosecutor in making the statement, and the

statement’s probable impact on the jury are all relevant consid-

erations necessary to a determination of the issue.

Clearly, the prosecutor’s comments were not motivated by

any improper intentions. At the time of the opening remarks he

fully intended to introduce evidence of the prior contact

between Wooten and petitioner. The mere fact that the judge

subsequently and unforeseeably excluded evidence of the prior

contact should not impugn the intent of the prosecutor during

his opening statement. The prosecutor could not possibly have

known at the time that the trial judge would rule unfavorably

on the proffered testimony. See United States v. Akin, 562

F. 2d 459, 466 (7th Cir. 1977), cert. denied, 435 U. S. 933

(1978).

Moreover, the effect that the purported reversible comment

had upon the jury could not have been significant. During the

course of the prosecutor’s opening statement, the court in-

formed the jury that his statement was not evidence. (TR. 30)

This admonishment was incorporated into People’s Instruction

No. 4 and reiterated to the jurors before their deliberations.

(TR. 138)

In sum, the Seventh Circuit Court of Appeals and the

District Court were correct in finding that any injection of

objectionable evidence at petitioner’s trial was insubstantial

and did not result in a deprivation of any of his constitutional

rights, especially when weighed against all the evidence

presented and the limiting instructions that were given.

5

The Illinois Pandering Statute is Not Unconstitutionally

Vague as It Provided Petitioner With Clear Notice of the

Conduct It Proscribes.

The petitioner complains that the statute under which he

was convicted, Section 11-16(a)(2) of the Penal Code of the

Illinois Revised Statutes, is unconstitutionally vague on its face

and, therefore, deprives him of due process of law. The

relevant portion of the statute provides that:

(a) Any person who performs any of ihe following

acts for money commits pandering;

(1) * * *

(2) Arranges or offers to arrange a situation in which a

female may practice prostitution.

Ill. Rev. Stat., ch. 38 § 11-16(a)(2) (1975).

A penal statute is void whenever it is so vague and lacking

in ascertainable standards of guilt that it fails to give fair notice

to a person of ordinary intelligence that his contemplated

conduct is forbidden. Papachristou v. City of Jacksonville, 405

U. S. 156 (1972); Palmer v. City of Euclid, 402 U. S. 544

(1971). However, a statute is not automatically invalid as

vague simply because of difficulty in determining whether some

marginal offenses fall within its language. United States v.

Powell, 423 U. S. 87, 93 (1975); United States v. National

Dairy Products Corp., 372 U.S. 29, 33 (1963). Additionally, it

is well established that vagueness challenges that do not involve

First Amendment freedoms must be examined in the light of

the facts of the case at hand. United States v. Mazurie, 419

U S. 544, 550 (1975).

The petitioner relies substantially on the specificity require-

ments of Smith v. Goguen, 415 U. S. 566 (1974). The Seventh

Circuit Court of Appeals in its decision found this reliance

- |

6

misplaced. The court noted that Smith required a greater

degree of specificity when First Amendment rights are affected,

but specifically held that the Illinois pandering statute does not

infringe on the exercise of one’s freedom of expression. Thus,

all that the statute under scrutiny here need do is provide fair

notice to a person of ordinary intelligence that his contemplated

conduct is forbidden. The court found that the Illinois pan-

dering statute adequately meets these requirements and that

petitioner’s vagueness challenge was without merit.

G

The Seventh Circuit Court of Appeals Correctly Found That

Petitioner’s Trial Counsel Aggressively and Competently

Defended Petitioner.

In complaining of ineffective assistance of counsel, peti-

tioner has taken a scattergun approach. Petitioner lists four

mistakes of his trial counsel “based upon a reading of the entire

transcript.” Pet. Br. 23.

The Seventh Circuit also read the record and found:

Our reading of the record reveals representation which was

certainly adequate. Petitioner’s trial counsel aggressively

defended his client and provided competent legal repre-

sentation.

Pet. Br., Seventh Cir. Op. 19.

The court found that the representation provided petitioner

at least met the minimum standard of professional representa-

tion required by United States ex rel. Ortiz v. Sielaff, 542 F. 2d

377, 379 (7th Cir. 1976), and found that the points raised by

petitioner as evidence of ineffective represeritation “reflect

speculation and hindsight as to how petitioner’s defense might

have been improved.” Pet. Br., Seventh Cir. Op. 17-18.

Petitioner’s speculation as to how his defense might better

have been presented does not rebut the presumption that his

ie

7

trial counsel was conscious of his duties to his client and that he

sought conscientiously to discharge those duties. Matthews v.

United States, 518 F. 2d 1245 (7th Cir. 1975). Petitioner has

failed to carry his burden of demonstrating ineffective repre-

sentation.

-%

°?

8

Ill.

CONCLUSION

For the foregoing reasons the Respondents respectfully

request that the Petition for Writ of Certiorari be denied.

Respectfully submitted,

TYRONE C. FAHNER,

Attorney General,

State of Illinois,

MELBOURNE A. NOEL, JR.,

THOMAS E. HOLum,

WILLIAM M. WIPPOLD,

Assistant Attorneys General,

188 W. Randolph St., Suite 2200

Chicago, Illinois 60601,

(312) 793-2570,

Attorneys for Respondents.