Petition for Writ of Certiorari — Williams v. Chrans

90-4 97

Case No.

IN THE CLARK

——

United States Supreme Comrt—~

OcTOBER TERM, 1990

JAMES WILLIAMS,

Petitioner,

V.

JAMES A. CHRANS, Warden of Pontiac

Correctional Center, and NEIL F.

HARTIGAN, Attorney General of the

State of Illionis,

Respondents.

PETITION FOR WRIT OF

CERTIORARI TO THE UNITED

STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

BARRY LEVENSTAM

(Counsel of Record)

RosBERT T. MARKOWSKI

JENNER & BLOCK

One IBM Plaza

Chicago, Illinois 60611

(312) 222-9350

Lisa I. Fair

Law Offices of Michael J. Rovel

875 N. Dearborn Street

Chicago, Illinois 60610

Attorneys for Petitioner

(1) Whether Mr. Williams' due

process right to present his defense was

violated by the trial court's refusal to

admit evidence that police had intimidated

key witnesses, a ruling that had the effect

of foreclosing Mr. Williams' "frane-up*

defense and therefore conflicted with this

Court's opinion in Chambers v. Mississippi,

410 U.S. 284 (1973), and subsequent cases.

| (2) Whether Mr. Williams' sixth

amendment right to confront witnesses was

violated by the trial court's refusal to

admit evidence of police misconduct for the

purpose of impeaching State witnesses,

including testifying officers .who had

participated in the misconduct, a ruling

that conflicted with this Court's opinion

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

and subsequent cases.

(3) Whether Mr. Williams' due

process right to a fair trial was violated

ii

by the outrageous conduct of the police

that included intimidation and coercion of

witnesses to obtain his conviction, conduct

that this Court held in United States v.

Russell, 411 U.S. 423 (1973), and

subsequent cases to preclude a conviction.

iii

TABLE OF CONTENTS

QUESTIONS PRESENTED FOR REVIEW ..

TABLE @) F CONTENTS * o a ° * . . . .

TABLE OF AUTHORITIES ......-.

OPZRIGNe GEIOW «6 6 te 6 8 tes

JURISDI CTION e o . * . o . . . . .

STATUTES INVOLVED . .....-..-.

STATEMENT OF THE CASE .......

REASONS FOR GRANTING THE WRIT...

I.

THE COURT OF APPEALS FAILED

TO APPLY DIRECTLY CONTROLLING

PRECEDENT OF THIS COURT AND

THUS FAILED TO VINDICATE

MR. WILLIAMS' RIGHTS TO

PRESENT HIS DEFENSE AND TO

CONFRONT THE WITNESSES AGAINST

a SOOO RLENs £ °F Ue es 0 o

A. Mr. Williams' Due Process

Right To Present His

Defense Was Violated By

The Refusal To Admit

Evidence To Support His

Frame-Up Defense .....

B. Mr. Williams' Sixth

Amendment Right To Confront

Witnesses Was Violated By

The Refusal To Admit

Evidence Of Police Miscon-

duct To Impeach The State's

ee ee ee ee

14

15

15

23

iv

II. THE COERCIVE EFFORTS OF THE

POLICE TO OBTAIN WITNESSES

AGAINST MR. WILLIAMS CONSTI-

CONCLUS ION . . * = . ° . . . » . -

APPENDIX o o o © o . . > * . ° > .

1. August 19, 1988 Memorandum

Opinion and Order of the

United States District Court

for the Northern District of

Tikswese .«« « BHA BPE Su StS

2. June 29, 1989 Memorandum

Opinion and Order of the

United States District Court

for the Northern District of

TILSOO ME KS OTN SR ee

3. October 21, 1985 opinion of

the Illinois Court of

Appea l ss . > . s > * . . .

4. June 20, 1990 Order of the

United States Court of

Appeals for the Seventh

CIMGMES je (oie G5 @Siratox «

27

31

A-44

A-86

CASES

, 781 S.W.2da 886

(Tex. Crim. App. 1989) .....

, 410 U.S.

284 (1973) . * . e . . > « . 14,

, 476 U.S. 683

(1986) . 7 > . . > ° . . . o 7 .

, 415 U.S. 308

(1974) > * ° . . o . o . . . 14 ?

, 475 U.S.

673 (1986) >. e . Rs . - ° ° . . >

, 360 U.S. 264

(1959) . . + > . + e > . o > > -

, 488 U.S. 227

(1988) > . . . . . . . >. . . o

, 342 U.S.

165 (1952) > >. . e * > . o « > .

, 483 U.S. 44

(1987) . . . . . * . . . 7 . + .

United States v. Abel, 469 U.S. 45

(1984) o * - . > > >. > _

, 744 F.2a

tT) e. EOS 7) ee

, 411 U.S.

423 (1973) . >. >. 7 . . . . . >. .

Page

e ws

15,22

- i6

23,27

24,27

- 29

»

«3 @e

« as

- 24

ni: te

» «ae

vi

, 538 F.2d 1272

(7th cir. 1976) - 7 > > > 7. . > . 293

, 388 U.S. 14

(1967) 7 - a - . _ . —- >. > — . > oO 16

STATUTES AND OTHER AUTHORITIES

ab Gis. ens oak es el ee 8

20 VU. 0s DOM cass acct. (92Gl5 83

28 U.8.0: OAhOOO? i & woes av. nivsas

Fa ee ee

United States Constitution, Sixth

ARSE «ci <a em Gite 2 cate « 32, 23

United States Constitution, Fourteenth

AmOnRGMONt . 1. 2+ © © © we we ewe se eo ewe we ew ee

OPINIONS BELOW

The opinion of the Illinois

Appellate Court, First District affirming

-Williams' conviction is reported at 137

Ill. App. 3d 736, 484 N.E.2d 1191 and

included in the Appendix at A-58. The

opinion of the United States District Court

for the Northern District of Illinois

(Williams, J.) granting summary judgment

for the state on eight counts of Williams'

petition for writ of habeas corpus is not

reported and is included in the Appendix at

A-1. The opinion of the same court

granting summary judgment for the state on

the remaining three counts of the Williams'

petition is not reported and is included in

the Appendix at A-44. The opinion of the

United States Court of Appeals for the

Seventh Circuit affirming the denial of

Williams' petition for writ of habeas

corpus is not reported and is included in

the Appendix at A-86.

2

JURISDICTION

On June 20, 1990, the United States

Court of Appeals for the Seventh Circuit

entered judgment affirming the district

court's denial of Williams' petition for

a writ of habeas corpus. Jurisdiction of

this Court to review the Seventh Circuit's

judgment by writ of certiorari arises under

28 U.S.C. § 1254(1).

The constitutional provisions

involved in this petition are the sixth and

fourteenth amendments to the United States

Constitution, which respectively provide in

relevant part that:

2. "cijnm all criminal prosecutions,

the accused shall enjoy the right

to . . . be confronted with the

witnesses against him; to have

compulsory process for obtaining

witnesses in his favor," and

3

2. "nor shall any State deprive any

person of life, liberty, or

property, without due process of

LOW se ce o®

The Police Focus On Mr. Williams After The

Shooting _

On June 29, 1982, Robert Love was

shot to death in Brian's Lounge, a

neighborhood bar on the west side of

Chicago. Police officers arrived almost

immediately after the shooting (Tr. 539,

587) and began conducting interviews.

(Tr. 574-76.) The police admitted that

they had no suspects the night of the

shooting. (Tr. 190, 646-47, 851.)

Nonetheless, for reasons never explained,

four unidentified police officers conducted

an unauthorized entry and search of

Williams' apartment within an hour or two

of the shooting. (Tr. 100-03.)

4

The Police Interview Six Regular Patrons Of

The Bar,. Three Of Whom Admit Being Coerced

Into Identifying Mr. Williams

Having obtained no evidence against

Williams from witness interviews at the

scene of the shooting or from the

unauthorized search of Williams' apartment,

the police took six regular patrons of the

tavern to police headquarters for

questioning over the course of the next few

days. Three of these regulars --

Margaret Russell, Emma Ginns, and

Carl Beasley -- admitted during a

suppression hearing that they had been

locked up for more than 24 hours during

which time they were physically abused and

forced by police officers, including two of

the State's witnesses -- Detectives Rave

and Cozzi -- to identify Williams as the

assailant. (Tr. 56-71, 89-97, 171-184.)

Russell, Ginns, and Beasley's

description of police misconduct is

supported in key respects by the testimony

5

of Rave and Cozzi, who admitted that all

three witnesses were kept overnight at

police headquarters despite the fact that

they were never suspects. (Tr. 154-55,

200-02.) Rave admitted that he could not

recall giving them anything to eat the

second day of their incarceration.

(Tr. 203.) He also conceded that the three

witnesses identified Williams at roughly

the same time in the afternoon of the

second day. (Tr. 206.) Finally, Rave

admitted that Russell, Ginns, and Beasley

were permitted to go home only after

identifying Williams in the early evening

hours of July 2, having spent more than 24

continuous hours in custody at police

headquarters. (Tr. 205-06.)

Two Of The Other Three Regulars Questioned

By Police Testify Against Mr. Williams At

Trial

The defense presented the evidence

of police misconduct to the trial court

during a suppression hearing. The State

6

avoided a ruling on its misconduct by

striking Ginns and Russell from its witness

list and representing that it would not use

Beasley's out-of-court identification at

trial. (Tr. 320-21.)

The State did, however, call two

other regulars to testify at trial. Like

Russell, Ginns, and Beasley,

Charles Clemons was taken to police

headquarters on July 1, where he viewed a

line-up that included Williams. (Tr. 5388-

89, 664.) After telling the officers

conducting the line-up that he could not

identify the assailant, Clemons told them

that the assailant had been wearing a dark

cap at the time of the shooting.

(Tr. 599.) According to Clemons, the

police officer then "had [Williams] put on

acap." (Tr. 589.) Nonetheless, Clemons

was still unable to identify the assailant.

(Tr. 590.) By the time of trial, however,

Clemons claimed that he had selected

7

Williams in that line-up as a man who

"looked something like the man that [he]

caught a glimpse of but [he] wasn't sure."

(Tr. 589.)

Lee Grady also testified against

Williams at trial. The State had asked

Emma Ginns whether she told the victim's

brother that Williams, known as "Bill," had

shot Robert Love. Ginns testified that she

had not. (Tr. 802.) Grady then testified

that Ginns told him after the shooting that

she knew who had shot Robert Love.

(Tr. 938-39.) The trial court, however,

cut off defense attempts to establish that

Grady's cooperation with the State came

only after he had become aware of how the

State had treated his friends Ginns,

Russell, and Beasley when they failed to

cooperate by identifying Williams.

(Tr. 543-46.)

8

Andrew Tucker Volunteers An Identification

Of Mr. Williams After Tucker's Mother Is

Interrogated By Police

The State's key identification

witness at trial was Andrew Tucker. Unlike

Clemons, the only other identification

witness, Tucker claimed that he was certain

he had seen Williams shoot the victin.

(Tr. 612.) The evidence, however, showed

that Tucker did not come forward with his

identification until a full week after the

shooting, and only then after his mother,

who had not been at the tavern the night of

the shooting, had been brought to police

headquarters (Tr. 632) -- apparently by the

same officers that abused Russell, Ginns,

and Beasley. (Tr. 653-54.)

Because the State never produced a

police report concerning the interrogation

of Rose Tucker, the defense called Cozzi to

the stand to inquire into the date (or

dates) and circumstances of Rose Tucker's

interrogation in an attempt to determine

9

whether Tucker had come forward because of

threats against or abuse of his mother.

The trial court, however, precluded

questioning on these matters as well.

(Tr. 851.)

Isadore Glover Provides A Motive Only After

Police Suggest That Mr. Williams Was The

Assailant _

On the day after the shooting, the

police took Ginns down to _ police

headquarters where they showed her a

photograph of Williams and asked her

whether she could identify that person as

the person who shot Robert Love. Ginns,

however, said that she could not identify

the assailant. [ses Baas) Later that

morning, Ginns went to visit the victim's

brother, Isadore Glover, and spoke with him

about the shooting. (Tr. 800-02.)

In the afternoon of the day after

the shooting, after police had suggested to

Ginns that Williams had shot Robert Love,

Detective Rave interviewed Glover at the

: | |

10

police station. (Tr. 510-11.) According

to the police reports, Glover then told

police for the first time that his brother

had been in a fight approximately four

hours before the shooting with a man Glover

knew as "Bill," and that this "Bill" had

run off threatening to "see you later."

(Tr. 191, 498-501.) Glover, however, had

been present with police at the tavern and

at the hospital shortly after the shooting

(Tr. 524), but had not mentioned that his

brother had been in a fight and threatened

in Glover's presence that very afternoon.

While at the station, Glover identified a

photograph of Williams as being of the

"Bill" who had fought with his brother

(Tr. 639-40) and on the following day,

identified Williams as "Bill" in a one man

show-up. (Tr. 514-15.)

At trial, Glover stated that he was

certain the fight had taken place at three

o'clock because “shortly before that [he]

il

had looked at the clock and it was about

quarter to three." (Tr. 519.) Glover aiso

testified that after the fight, Love

returned to his porch where they sat for

approximately 45 minutes before Love left

for the tavern. (Tr. 501-02.) Glover's

testimony, however, was contradicted by

Clemons who testified that Love was already

at the tavern when he arrived after work at

three o'clock. (Tr. 579.)

The Trial Court Denies The Pretrial Motion

To Dismiss

In light of the police misconduct

‘that led to the identifications of Williams

by Russell, Ginns, and Beasley, the defense

filed a pretrial motion to dismiss,

'asserting that police misconduct had

violated Williams' constitutional rights.

(R. 1240-45.) Specifically, the defense

Claimed that Williams could not get a fair

trial because the police mistreatment of

key witnesses to obtain identifications of

12

Williams interfered with his ability to

present his defense.

Although the trial court denied the

motion to dismiss, the court ruled that the

jury would be permitted to weigh the

evidence concerning the abuses committed in

the police investigation with the rest of

the evidence. (Tr. 406-07.) To the

contrary, however, the trial court did not

permit the jury to hear this evidence. The

defense called Detective Rave to the stand

intending to use him, as well as Ginns,

Russell, and Detective Cozzi, to

demonstrate that Tucker's testimony was the

product of a police campaign of witness

intimidation. (Tr. 701-02, 704-09.) The

court ruled that this evidence was

irrelevant because the evidence "would

confuse greatly the true and genuine issue

in this trial so far presented, whether or

not the defendant is the actual

shooter « +6 «* (Tres 703.)

iia a ia |

13

On April 22, 1983, at the

conclusion of the evidence that was

presented, the jury found Wiliiams guilty

of murder. He was later sentenced to

thirty years' imprisonment. On direct

appeal, the [Illinois Appellate Court

affirmed the conviction, and the Illinois

Supreme Court denied Williams' petition for

leave to appeal. Having exhausted all

available State remedies, Williams filed a

petition for writ of habeas corpus in the

United States District Court for the

Northern District of Illinois on June 10,

1987. The district court had jurisdiction

under 28 U.S.C. §§ 1331, 1343, and 2241.

The court granted the State's motion for

summary judgment and denied the petition.

The court of appeals later affirmed the

district court's judgment.

14

REASONS FOR GRANTING THE WRIT

1. The decision of the court of

appeals is in direct conflict with long-

established precedent of this Court setting

forth the rights of criminal defendants to

present a defense, specifically,

Chambers v. Mississippi, 410 U.S. 284

(1973), and to confront the witnesses

against him, specifically, Davis v. Alaska,

415 U.S. 308 (1974).

2. The decision of the court of

appeals has departed from the accepted and

usual course of judicial proceedings by

failing to issue a writ of habeas corpus to

a man incarcerated in violation of his

constitutional rights as a result of

outrageous conduct on the part of the

police officers investigating the crime for

which he was wrongfully committed.

15

I. THE COURT OF APPEALS FAILED TO APPLY

DIRECTLY CONTROLLING PRECEDENT OF THIS

COURT AND THUS FAILED TO VINDICATE

MR. WILLIAMS' RIGHTS TO PRESENT HIS

DEFENSE AND TC CONFRONT THE WITNESSES

A. Mr. Williams' Due Process Right To

Present His Defense Was Violated

By The Refusal To Admit Evidence

To Support His Frame-Up Defense _

In Chambers v. Mississippi,

410 U.S. 284, 302 (1973), this Court held

that "(fjew rights are more fundamental

than that of an accused to present

witnesses in his own defense." The

Chambers Court reversed the defendant's

conviction where the defense was precluded

from eliciting testimony from witnesses

that someone other than defendant had

committed the crime. Accord Rock v.

Arkansas, 483 U.S. 44, 55-56 (1987) (State

"may not apply a rule of evidence that

permits a witness to take the stand, but

arbitrarily excludes material portions of

his testimony"; conviction therefore

reversed where State applied "per se rule

16

prohibiting the admission at trial of any

defendant's hypnotically refreshed

testimony"); Crane v. Kentucky, 476 U.S.

683, 690-91 (1986) ("the Constitution

guarantees criminal defendants ‘a

meaningful opportunity to present a

complete defense'"; accordingly, the court

“erred in foreclosing petitioner's efforts

to introduce testimony about the

environment in which the police secured his

confession") ; Washington v. Texas,

388 U.S. 14, 19 (1967) (the "right to offer

the testimony of witnesses ... is in

plain terms the right to present a

defense, . . . a fundamental element of due

process of law"). Nonetheless, Williams

was precluded from presenting the testimony

of certain key witnesses in his defense.

Williams' primary defense was that

the police immediately focused their

investigation on him and created a case

against him with false evidence.

17

Specifically, the theory of the defense was

that the police first convinced Glover that

Williams was the man who shot his brother

and thereby obtained Glover's false

testimony about a fight between Williams

and Robert Love. The police then coerced

identifications from potential witnesses

through threats and torture directed

against them or members of their family and

dissuaded other witnesses from coming

forward to exonerate Williams once news of

their abuse reached the other regulars of

the bar. Williams, however, was prevented

from presenting this defense to the jury by

the trial court's evidentiary rulings that

precluded Williams from questioning either

Ginns, Russell, and Grady or Detectives

Rave and Cozzi on this subject. Williams

therefore is incarcerated as a result of

violations of his right to due process.

Specifically, Williams attempted to

call Detectives Rave and Cozzi to the stand

18

as adverse witnesses to tell the jury how

the police had focused their investigation

on him before they had any suspects and

then took extreme and coercive steps to

obtain and create evidence against him.

(Tr. 701-02.) His apartment was illegally

entered and searched within hours of the

shooting (Tr. 100-05, 772-75) before the

police had any suspects (Tr. 190, 646-47,

851). He was later arrested without a

warrant on the basis of nothing other than

a hearsay statement by the victim's brother

that someone named "Pussycat" told him that

she had seen someone named "Bill" do the

shooting. (Tr. 195-96.) After his arrest,

Williams was neither read his Miranda

rights (Tr. 108), nor permitted to see a

lawyer. (Tr. 219-20.) He was then

threatened and struck in an unsuccessful

attempt to obtain a confession. (Tr. 220.)

Potential witnesses were jailed and abused

19

until they falsely agreed to identify.

Williams. (See pages 4 to 5 above.)

Having secured the cooperation of

these witnesses, Williams would have shown,

these police officers attempted to

strengthen their case by calling Rose

Tucker to headquarters. (Tr. 632.) Soon

after this unreported "interview," her son

came to headquarters, asked for Detective

Cozzi by name, and identified Williams.

(Tr. 632.)

Nevertheless, after lengthy

argument in which defense counsel explained

the relevance and significance of this

evidence and made a detailed offer of proof

(Tr. 701-14), the trial court excluded it

on the grounds that the testimony would

"confuse the jury and shift the onus of the

case over to the police department"

(Tr. 707-08) -- in other words, place the

burden of proof upon the State, where it

rightfully belongs.

. 20

Williams also attempted to call

Emma Ginns and Margaret Russell to testify

about the treatment they received when they

told the police they could not identify

Williams as the assailant. (Tr. 709, 813.)

The trial court prevented the defense from

presenting this evidence to the jury on the

same grounds (Tr. 709-10; 813-14), notwith-

standing the fact that during the hearings

on the motions to suppress and dismiss, the

trial court did not find these witnesses

unworthy of belief and did not find that

the misconduct never occurred.

Third, Williams attempted teorems-

examine Detective Cozzi concerning the

treatment of Rose Tucker shortly before her

son "voluntarily" appeared at the station

asking for Detective Cozzi. (Tr. 851.)

The defense wanted to establish that

because Mrs. Tucker had not been present at

the bar at the time of the shooting, she

was not a potential witness. The police

21

had therefore called her down to the

station to exert the same pressure on her

to get at her son that they had exerted on

Russell, Ginns, and Beasley to get

identifications from them. Nonetheless,

the court excluded this line of question-

ing, stating cnly that it was immaterial.

(Id.)

Finally, Williams attempted to

cross-examine Lee Grady about his meeting

with Russell, Ginns, and Beasley

immediately after their release from police

headquarters to establish that he was aware

of the treatment witnesses could expect if

they did not tell the police what they

wanted to hear. The trial court refused to

allow defense counsel to elicit from Grady

the fact that Ginns, Russell, and Beasley

told him that the police had coerced

statements from them. (Tr. 545-46.)

If the jury had been told of the

brutal and extensive efforts of the police

22

to manufacture a case against Williams,

they might well have decided that the

police wanted Williams badly enough to

(1) trick the victim's brother into helping

them convict Williams with false testimony

about the fight and the conversation with

Ginns in which she allegedly stated that

she knew who had shot Love, (2) directly or

indirectly coerce the other state witnesses

into falsely identifying Williams as the

assailant, and (3) directly or indirectly

coerce other witnesses into not identifying

someone other than Williams as_ the

assailant. Thus, Williams' "defense was

far less persuasive than it might have been

had he been given the opportunity" to

present this evidence. See Chambers v.

Mississippi, 410 U.S. at 294.

23

B. Mr. Williams' Sixth Amendment

Right To Confront Witnesses Was

Violated By The Refusal To Admit

Evidence Of Police Misconduct To

,

Impeach The State's Witnesses __

In Davis v. Alaska, 415 U.S. 308,

316-17 (1974), this Court held that the

possibility that a witness "might have been

subject to undue pressure. from the police

and made [an] identification under fear" is

indisputably a proper subject of full and

searching examination under the sixth

amendment. The Court therefore reversed a

conviction where the defendant had been

denied the opportunity to show the bias of

a State witness who occupied the vulnerable

status of probationer and who was concerned

that he might be a suspect in the crime.

See also Olden v. Kentucky, 488 U.S. 227,

230-33 (1988) (conviction for forcible

sodomy reversed where defendant precluded

from introducing evidence of victim's

cohabitation with another to demonstrate

victim's motive to lie about’ rape);

24

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

(1986) (defendant's right to confront

witnesses violated by trial court ruling

that prohibited "all inquiry into the

possibility that [a prosecution witness]

would be biased as a result of the State's

dismissal of his pending public drunkenness

charge"); United States v. Abel, 469 U.S.

45, 47-49 (1984) (district court properly

admitted testimony of prosecution rebuttal

witness to impeach defense witness by

showing that defendant and defense witness

were "members of a secret prison

organization whose tenets required its

members to. .. ‘lie, cheat, steal [and]

kill' to protect each other").

The State's case against Williams

consisted of nothing more than the

identification testimony of occurrence

witnesses Tucker and Clemons. There was no

physical evidence linking Williams to the

shooting of Robert Love. There was no gun,

25

no evidence that Williams had a gun, no

fingerprint, and no evidence that Williams

owned any clothing like that allegedly worn

by the assailant. Because the identifi-

cation by Clemons was so uncertain, the

State's case depended entirely on the

credibility of one witness: Andrew Tucker.

Nevertheless, the trial court did

not allow the defense to present to the

jury the evidence of the bias held by the

State witnesses, including Tucker. To the

jury, Detectives Rave and Cozzi appeared to

be police officers with no interest other

than to uphold the law; Grady, Clemons,

and most importantly, Tucker appeared to

have no personal stake in the matter; and

Glover, as the victim's brother doubtless

appeared to be (and doubtless was)

interested in convicting the man he was led

to believe actually committed the murder.

The trial court's ruling precluded the

defense from informing the jury of the

26

outlandish and improper investigation

conducted by Rave and Cozzi and of the

likely pressure brought to bear by them on

Tucker and the others.

Williams was foreclosed by the

trial court from examining Detective Cozzi

about the interrogation of Rose Tucker.

(Tr. 851.) He was precluded from examining

Emma Ginns about the abuse she suffered at

the hands of the police and, therefore,

about the other witnesses with whom she

discussed her ordeal. (Tr. 709-10, 813-

14.) He was precluded from examining Grady

about his meeting with Russell, Ginns, and

Beasley immediately after they were

released. (Tr. 545-46.) The court's

ruling below is premised on a circular

argument within which Williams is trapped:

he would be entitled to a writ if he could

prove that Tucker, Clemons, or Glover were

coerced, but the trial court, in the

court's opinion, committed no error when it

EEE EE _____

27

prohibited questioning of the State's

witnesses to obtain that proof. (See

Appendix A-38.)

Such police coercion of witnesses

was expressly found by this Court in both

Davis v. Alaska, 415 U.S. 308, 316-17

(1974), and Delaware v. Van Arsdall,

475 U.S. 673, 679 (1986), to be a subject

of examination that cannot constitutionally

be foreclosed to the defendant. By

upholding the denial of a writ of habeas

corpus, the court of appeals' decision

directly contradicts the precedents of this

Court.

II. THE COERCIVE EFFORTS OF THE POLICE

TO OBTAIN WITNESSES AGAINST

MR. WILLIAMS CONSTITUTED

OUTRAGEOUS GOVERNMENT CONDUCT THAT

VIOLATED MR. WILLIAMS' RIGHT TO

DUE PROCESS.

Mr. Williams' petition for a writ

of habeas corpus presents a shocking record

of outrageous and unconstitutional miscon-

duct on the part of the investigating

28

police officers. That misconduct

irreparably infected the evidence to be

admitted at trial and precluded discovery

of potentially exonerating evidence in

violation of Williams' constitutional right

to due process. Accordingly, the trial

court erred in denying Williams' pretrial

motion to dismiss the information and the

district court erred in granting the

State's motion for summary judgment on

Williams' petition for writ of habeas

corpus.

This Court recognizes that the

State may not obtain a conviction in cases,

such as this one, in which police conduct

is genuinely outrageous. See Rochin v.

California, 342 U.S. 165, 209, 211 (1952)

(conviction on charge of possessing

morphine reversed where two capsules

constituting chief evidence against

defendant were obtained by pumping his

stomach, State conduct that "shocks the

aati atetaaaia indiana een aii

29

conscience" and offends due process) ;

United States v. Russel], 411 U.S. 423,

431-32 (1973) ("conduct of law enforcement

agents [may be] so outrageous that due

process principles would absolutely bar the

government from invoking judicial processes

to obtain a conviction").

In addition, due process precludes

the use of testimony obtained by coercion.

See, e.g., Napue v. Illinois, 360 U.S. 264,

269 (1959) (conviction reversed where

obtained through use of known false

testimony bearing on credibility of witness

and thus in violation of due process) ;

United States v. Chiavola, 744 F.2d 1271,

1273 (7th Cir. 1984) (defendant's right to

a fair trial may be violated "when the

government seeks a conviction through use

of evidence obtained by extreme coercion") ;

United States ex rel. Wilson v. Warden

Cannon, 538 F.2d 1272, 1277 (7th Cir. 1976)

(denial of petition for writ of habeas

corpus reversed where obtained through

perjured testimony of accomplices that they

had not received prosecutorial promises of

leniency in exchange for their testimony).

See also Ex parte Bradley, 781 S.W.2d 886,

894 (Tex. Crim. App. 1989) (writ of habeas

corpuv- granted on the grounds that improper

pelice investigation procedures led to

inherently unreliable testimony).

As set forth above, at pages 17 to

19, the police misconduct in this case was

indeed outrageous, had the purpose and

effect of coercing false testimony against

the defendant, and irreparably tainted the

evidence presented by the State at trial.

Accordingly, Williams' petition for a writ

of habeas corpus should have been granted.

At the very least, sufficient evidence has

been adduced to raise factual questions

precluding summary judgment for the State.

The district court erred in granting the

State's motion for summary judgment.

31

CONCLUSION

For the reasons set forth above,

petitioner James Williams respectfully

requests this Court to grant his petition

for a writ of certiorari.

Respectfully submitted,

BARRY LEVENSTAM

(Counsel of Record)

ROBERT T. MARKOWSKI

LISA I. FAIR

Attorneys for Petitioner

Dated: September 18, 1990

_—S

‘

Ae

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

UNITED STATES OF AMERICA,

ex rel. JAMES WILLIAMS,

Plaintiff,

No. 87 C

5242

Vv.

JAMES A. CHRANS, Warden of

Pontiac Correctional Center

and NEIL F. HARTIGAN,

Attorney General of the

State of Illinois,

ee ee ee ee ee ee ee ee ee ee ee ee ee”

Defendants.

h

MEMORANDUM OPINION AND ORDER

At approximately 7:00 p.m. on

June 29, 1982, while he waited for his turn

at the card table in a bar on the west side

of Chicago, Robert Lane was shot to death.

The police investigation immediately

focused on James Williams who was

‘ eventually charged with murder, tried and

convicted. Having exhausted his

state-court remedies, Williams petitions

this court for a writ of habeas corpus. In

this opinion, the court addresses the

A-2

parties' cross motions for summary judgment

on the eleven-count petition.

Facts

As with virtually all habeas

cases, a discussion of the relevant facts

begins with what happened at the trial.

Isadore Glover, the victim's brother,

testified first for the State of Illinois.

Glover testified that at about 3:00 p.m. on

the day of the murder he witnessed an

argument between the victim and Williams,

whom Glover identified in court.

Apparently, Williams owed the victim ten

dollars. The intensity of the argument

increased to the point where Williams

punched the victim in the head. When the

victim went after Williams with a crutch,

Williams ran from the victim and said "I

will see you later." Forty-five minutes

later, the victim left for Brian's Lounge,

a west-side tavern. Thirty minutes after

the victim left, Glover left to join him at

A~3

the tavern. After talking with his

brother, Glover returned home. Glover was

later called back to the bar, where he saw

his brother lying in a pool of blood.

Glover testified that later he identified

Williams in a photo spread as the man who

had argued and fought with the victim at

3:30 p.m. on the date of the murder.

Lee Grady testified that he was

in the tavern at the time of the shooting

but could not see the assailant's face.

During the cross-examination of Grady, the

trial court sustained hearsay objections to

defense counsel's questions regarding

statements made by a "Mr. Beasley"”™ to Grady

on July 7, 1982. Record at 545-46.

Charles Clemons was a regular at

the tavern and was present at the time of

the shooting. Clemons testified that the

victim was shot as the victim moved to take

a seat at the card table. Clemons saw a

man holding a gun with both hands before

A-4

Clemons fell to the floor to avoid further

gunfire. When he stood up, the gunman was

gone. Clemons further testified that two

days after the shooting, on July 1, 1982,

he viewed a lineup of five men, one of whom

was Williams. At the time of the lineup,

Clemons told an officer that Williams

"looked something like the man _ that

[Clemons] caught a glimpse of but [Clemons]

' wasn't sure." Id. at 589. Clemons then

told the officer that the gunman had worn

a cap. But even after the officer put a

cap on Williams, Clemons "wasn't one

hundred percent sure" so he could not make

a positive identification. Id. at 590.

Andrew Tucker testified that he

was Clemons' card partner the night of the

shooting. Tucker had gotten up from the

table and was bending over to pick up his

coat when he heard the first shot. Tucker

then tried to stand up but could not

because the victim, who had been behind

= Soren ars: >

t

’

i

A-5

Tucker, grabbed Tucker around the neck.

Tucker turned to face the gunman who was

standing six to eight feet away. The

gunman fired another shot, the victim's

grip weakened and Tucker dove to the side.

Tucker identified Williams in court as the

gunman and testified that he recognized

Williams from the three years the two spent

together in grammar school. Tucker further

testified that he identified Williams ina

photo spread on July 6, 1982 and in a

lineup on July 13, 1982.

The State offered evidence to

corroborate Glover, Tucker and Clemons’

testimony. Detective Edward Rave of the

Chicago Police Department testified that on

June 30, 1982 Glover had made an identifi-

cation of Williams from a photo spread.

Detective Rave also testified that on

July 13, 1982 Tucker identified Williams in

a five-man lineup. Detective Robert Cozzi

testified that on July 6, 1982 Tucker

A-6

identified Williams in a photo spread.

Finally, Detective Michael O'Sullivan

testified that Clemons at the time of the

lineup told him that Williams "resembled"

the gunman but that Clemons could not be

sure.

Williams did not testify in the

defense case, but a number of others did.

Gregory Norman testified that he had hired

Williams to renovate Norman's apartment.

On the date of the murder, Norman and

Williams bought paint in the afternoon and

returned to the apartment at 5:30 p.m. to

watch a news report concerning John

Hinckley. Williams' mother-in-law, Fannie

Strong, testified that she saw Williams

painting Norman's apartment at dusk.

Williams and Atlas Davis both testified

that they saw Williams with Norman on

July 29. Elizabeth Johnson confirmed that

the Hinckley report aired at 5:30 p.m. on

June 29, 1982 but conceded on

A-7

cross-examination that the same report ran

a number of other unspecified days.

Emma "Pussycat" Ginns testified

that she had been in the tavern at the time

of the murder, but that she had not seen

Williams in the tavern at all that day. On

cross-examination, Ginns admitted talking

to Glover the day after the murder but

denied having told Glover that Williams was

the one who had shot Robert Love.

Williams' wife Jacqueline

testified first about a police search of

the Williams' apartment at approximately

8:00 p.m. the day after the murder. After

hearing a knock on the door, she opened the

door and found three police officers

standing with their guns drawn. Without

permission to enter or a search warrant,

the officers walked past her, asked if her

husband was at home and searched the

apartment for about five minutes.

Jacqueline later told Williams what had

happened after he returned to the

apartment. Jacqueline further testified

that the next morning at approximately 6:00

a.m. the police returned. After opening

the door, Jacqueline told the police her

husband was in bed. The police again

walked past her and into the bedroom where

they arrested Williams.

Williams also called: Detective

Cozzi back to testify in the defense case.

The trial court rejected defense counsel's

request to conduct an adverse examination

of Detective Cozzi, so objections to

leading questions were sustained.

Detective Cozzi essentially testified that

he had interviewed a number of people at

the tavern the night of the murder and from

those interviews had obtained a composite

description of the gunman. But as of the

night of the murder, Detective Cozzi did

not have a suspect in mind.

A-9

In rebuttal, the State called two

witnesses to impeach Ginns. Glover testi-

fied that the day after the crime Ginns had

told him that Williams was the murderer.

Grady testified that the night of the

murder Ginns had told him that she had seen

and recognized the murderer.

The jury convicted Williams and

the court sentenced him to thirty years

imprisonment. The Illinois Appellate Court

affirmed, see People v. Williams, 137 I11l.

App. 3d 736, 484 N.E.2d 1191 (ist Dist.

1985), and the [Illinois Supreme Court

denied Williams' motion for leave to

appeal. Consequently, Williams' petition

is his last hope for reprieve. The court

will address each of Williams' arguments

for issuance of the writ separately.

I

Motion to Quash and Suppress

Prior to trial, Williams made a

motion to quash his arrest and suppress

A-10

identifications made subsequent to his

arrest, including any pretrial or trial

identifications of Williams made by Ginns,

Tucker, Margaret Russell and Carl Beasiey.

On January 31 and February 2, 1983, the

trial court held a suppression hearing on

that motion. Russell, Ginns and Beasley

each testified about various acts of police

misconduct at Area Four headquarters. The

acts were designed to elicit an identifi-

cation of Williams from them. Williams'

wife testified in a manner essentially

consistent with her trial testimony.

Defense counsel questioned Detectives Cozzi

and Rave about their interrogation

procedures with Russell, Ginns and Beasley.

Williams himself also testified. Detective

Thomas McCarthy testified on behalf of the

Stute regarding the circumstances

surrounding Williams' arrest.

The parties later argued the

merits of the motion. The State

A-il

represented that it had no intention of

calling Ginns or Russell as witnesses in

its case in chief and that it would not

offer evidence of Beasley's out-of-court

identification. The trial court indicated

it would permit an in-court identification

of Beasley, but Beasley in fact never

testified at trial. As for the motion to

quash the arrest, the trial court found

that probable cause existed to arrest

Williams. The trial court initially

rejected Williams' assertion that he had

asked for a liwyer within an hour of his

arrest:

Now, there is one

other comment made by

defense counsel not

broadly gone _ into,

that the defendant

requested an attorney

during the interviews

I believe that was

(sic) conducted by the

State's witnesses. It

will be a finding of

the court that that

was not adecuately

established by the

defendant or the

defense counsels

A-12

(sic). And it is my

understanding of the

evidence before this

court Saet

Mr. Williams has given

no admission or no

confessions or no

statements that

implicate himself in

the murder, to the

police.

Record at 379-80. The court later

indicated, however, that it considered the

issue to be "ancillary" and expressed some

confusion as to why defense counsel had

raised the matter. Id. at 381. The trial

court did not formally rule on Williams'

motion to suppress Tucker's pre-trial and

in-court identifications of Williams and

admitted those same identifications at

trial.

In its opening statement at

trial, the state told the jury that Clemons

would testify that he had identified

Williams as the gunman although Clemons

could not be positive. Id. at 489.

Defense counsel subsequently objected to

A-13

the State's opening regarding Clemons

because defense counsel maintained that

Clemons’ identification of Williams had

never been disclosed to the defense. Id.

at 505-06. Defense counsel made the same

objection regarding Glover's testimony

concerning a showup identification Glover

made of Williams at Area Four headquarters

on July 1, 1982. Id. at 515-16. . The State

in response stated that the police reports

turned over to the defense did disclose

that Glover identified Williams in a photo

spread on June 30, 1982. The state appeared

to concede that it had not turned over any

document which disclosed either the Glover

showup identifications or Clemons'

tentative identification. Defense counsel

complained that the State's failures

prevented Williams from challenging those

identifications at the suppression hearing,

moved to exclude the testimony of both

Glover and Clemons, and also moved for a

i

A-14

mistrial. The trial court, commenting that

it had "never seen a defense case so

definitively prepared" and that "there is

genuinely very little that would take

[defense counsel] by surprise," denied

defense counsel's motions. Id. at 556-58.

Defense counsel renewed their objection

before Clemons testified about the lineup,

but the trial court overruled the

objection. Id. at 588.

In his petition, Williams now

argues that the trial court erred in

admitting Tucker, Glover and Clemons'

identifications. As for Tucker's identifi-

cations, Williams first argues that even

though those identifications were tainted

by police misconduct, the trial court

refused to let him introduce evidence of

police misconduct at the suppression

hearing. Petition 4 19, at 9. Williams

failed, however, to raise this argument on

his appeal to the Illinois Appellate Court.

A-15

See Appellant's Brief at 42-49; Appellant's

Reply Brief at 23-34. Williams' failure

means that this court cannot review this

claim unless he can establish cause for the

procedural default and prejudice attribut-

able thereto. See, e.g., Murray v.

Carrier, 106 S.Ct. 2639, 2644. No cause

has been shown here, nor has Williams

attempted to show such cause.

Williams also argues that the

trial court should have suppressed the

pre-trial identifications of Glover, Tucker

and Clemons because each was made as a

direct consequence of the fact that the

police had arrested Williams without

probable cause and therefore were able to

display him to those wit» esses. Citing

United States v. Fisher, 702 F.2d 372, 379

(2nd Cir. 1983). In essence, Williams asks

this court to reconsider the trial court

and appellate court's interpretation of the

fourth amendment -- a claim expressly

A-16

forbidden on collateral review by the

Supreme Court in Stone v. Powell, 428 U.S.

465, 494-95 (1976) absent an argument that

the petitioner was not provided an

opportunity for full and fair litigation of

his fourth amendment clain. Accord

Sanders v. Israel, 717 F.2d 422, 423-24

(7th Cir. 1983), cert. denied, 465 U.S.

1033 (1984). Even though Williams claims

he was unaware of Glover and Clemons’

identifications at the time of the

suppression hearing, he did receive a fair

hearing on the question of whether probable

cause existed to arrest him. Consequently,

under Stone, this argument fails.

Furthermore, Williams maintains

that the Glover showup identification and

the Clemons' lineup identification both

constituted violations of Williams' fifth

and sixth amendment rights to counsel and

that therefore those identifications should

have been suppressed. But the fifth

i

:

:

a rs

A-17

amendment does not create a right to

counsel at a pretrial identification

because the constitutional privilege

against compulsory selif-incrimination is

not implicated. Kirby v. Illinois, 406

U.S. 682, 687-88 (1972); Cf. United States

ex rel. Espinoza v. Fairman, 813 F.2d 117,

120 (7th Cir. 1987) (the fifth amendment

protects a defendant from interrogation

without the presence of counsel), cert.

denied, 107 S.Ct. 3240 (1987). Moreover,

under the prevailing interpretation of

Moran v. Burbine, 475 U.S. 412, 432 (1986),

Williams' sixth amendment right to counsel

had not yet attached at the time of the

pretrial identifications in question

because the state had not yet formally

initiated adversary judicial proceedings

against Williams.’ Fencl v. Abrahmson,

VY In United States ex rel. Hall v.

Lane, 804 F.2d 79, 82 (7th Cir. 1986),

cert. denied, 107 S.Ct. 1382 (1987),

Judge Flaum implied that Moran did not

(continued...)

A-18

841 F.2d 760, 769 (7th Cir. 1988); United

States ex rel. Shiflet v. Lane, 815 F.2d

457, 464-65 (7th Cir. 1987), cert. denied,

108 S.Ct. 1234 (1988). See generally

Kirby, 406 U.S. at 687-91 (no right to

counsel at a showing prior to "commencement

of any prosecution").

Finally, Williams argues that the

State's failure to disclose the Glover and

Clemons’ identifications effectively

precluded him from challenging’ the

procedures employed to obtain those

pretrial identifications. The

Constitution, however, does not mandate

pretrial disclosure of identification

testimony. See Brown v. Harris, 666 F.2d

782, 785 (2nd Cir. 1981), cert. denied, 456

Yy (...continued)

definitively resolve the question of

whether a party may ever have a sixth

amendment right prior to the initiation

of formal adversary judicial proceedings.

In light of Fencl and Shiflet, this court

no longer considers Hall to be the pre-

vailing view in this circuit.

A-19

U.S. 948 (1982). Williams of course had a

right to question the fairness of the

identification procedures, but his consti-

tutional recourse under the circumstances

was to cross-examine Clemons and Glover

regarding the nature of identification

procedures or to ask for a hearing outside

the presence of the jury. See Watkins v.

Sanders, 449 U.S. .341, 345-49 (1981);

United States v. Mitchell, 540 F.2d 1163,

1166-67 (3rd Cir. 1976), cert. denied, 429

U.S. 1099 (1977). Since Williams does not

challenge the fairness of the Glover and

Clemons' identifications in his petition,

the court does not address that question.

For the reasons given, the court

grants the respondents' motion for summary

judgment on Count II of Williams' petition.

II

Other Discovery Matters

In addition to the Glover and

Clemons' identifications already discussed,

A-20 :

Williams complains that the State failed to

disclose other discovery before trial.

First, the police questioned Tucker's

mother Rose at Area Four a few days before

Tucker went to the station. Williams

Claims that the State should have produced

a record or report of the questioning of

Rose. Apparently, Williams believes that

such a report would have revealed police

harassment of Rose and that Tucker himself

became aware of such harassment. But

Williams failed to raise this argument on

appeal in state court and has shown no

cause for that failure. See Appellant's

Brief at 50-55; Appellant's Reply Brief

at 25-29. As a result, this court is

precluded from addressing this claim.

Second, on November 30, 1982, an

assistant state's attorney summoned Russell

to his office at which time Russell

disavowed the identification she had made

earlier after being coerced by police.

pheneRNETesaeereeebemndme:

A-21

Even assuming that Williams' mention of

this fact in a footnote constitutes raising

the issue with the Illinois Appellate

Court,* the court finds no constitutional

infirmity resulting from the State's

failure. The State did not introduce the

coerced identification at trial, and

Williams had adequate notice of Russell's

recantation to include it in his motion to

dismiss the indictment. See Petitioner's

Exhibit 34.

In summary, the court finds no

constitutional error resulted from the

State's failure to turn over specified

discovery. Consequently, the court grants

the respondents' motion for summary judg-

ment on Count VI.

#/ See Appellant's Brief at 51.

Williams claims that the trial

court unnecessarily restricted the ques-

tions which the jurors were asked during

voir dire. The trial court refused to ask

a number of proposed questions including

questions about whether the jurors felt

that the charge against Williams was

evidence of guilt and about the jurors’

attitude regarding the presumption of

innocence. On collateral review this

court's obligation is to insure that the

accused received a fair trial before a

panel of impartial jurors. E.g.,

Brinlee v. Crisp, 608 F.2d 839, 844 (10th

Cir. 1979), cert. denied, 444 U.S. 1047

(1980). But this court cannot make that

determination without consideration of the

questions the trial judge actually asked

during voir dire, and those questions are

not presently in the record. Consequently,

A-23

the court denies the respondents' motion

for summary judgment on Count VII.

IV

Admission of Photographs

At trial the court admitted

photographs of a large pool of blood at the

tavern and of bullet holes in the victim's

body. Williams claims that because no

disputes existed relating to the cause of

death or manner in which the wounds were

inflicted, no possible relevance existed

for their admission and they had an

extremely prejudicial effect. The

admission of the photographs is a matter

within the discretion of the trial court

whose ruling will not be disturbed on

habeas review unless their admission

rendered the trial fundamentally unfair.

Qsborne v. Wainwright, 720 F.2d 1237,

1238-39 (lith Cir. 1983); Batchelor v.

Cupp, 693 F.2d 859, 865 (9th Cir. 1982),

cert. denied, 463 U.S. 1212 (1983). To

A-2s

make that determination, the court con-

cludes it should review the photographs

which are not yet part of the record. See

Nettles v. Wainwright, 677 F.2d 410, 414-15

(5th Cir. 1982) (the habeas court examined

the photographs before making a prejudice

determination). The motion for summary

judgment on Count IX is therefore denied.

Vv

Glover's Rebuttal Testimony

Prior to the trial, Williams

moved in limine for an order precluding the

State from eliciting testimony regarding a

witness' fear of intimidation from the

defendant or others. The State represented

it would not elicit such testimony and the

trial court ordered the State to give

Williams and the court advance notice

before asking questions in that area. At

trial in the defense case, Emma Ginns

denied having told Glover the day after the

murder Williams had shot Love. Record

A-25

at 801-02. The State in its rebuttal case

called Glover for purposes of impeaching

Ginns. Glover testified that Ginns had

told him that Williams was the gunman.

When asked if Ginns had said anything about

Williams' family, Glover responded as

follows:

She just said that she

had been knowing them

a very long time and

that some of his sis-

ters and she had went

out together on occa-

sions, but she was

very familiar with she

family and that she

didn't want me to say

that she had saw me

because she was very

afraid at the time.

Id. at 914. Williams moved for a mistrial

or alternatively to have Glover's testimony

stricken. The trial court denied this

motion but granted Williams' request for an

instruction striking Glover's last comment.

Specifically, the trial court read the

following instruction:

Ladies and gentlemen

of the jury, just

A-26

before we broke

Mr. Glover was testi-

fying about a.conver-

sation he may have had

with Emma on June 30th

at 11:00 o'clock in

the morning. Just

before the break he

made the statement

that Emma said to him

that she is very

afraid. That

particular testimony

is irrelevant to the

issues before the

court and before the

jury in this case.

That particular testi-

mony is inappropriate

and, therefore, it is

stricken by the court.

The jury is instructed

to disregard it, not

to discuss it in chan-

bers after the case is

concluded bkecause it

is irrelevant and

. immaterial to the

issues before the

court.

Id. at 923.

Williams argues that the trial

court erred in not granting his motion for

mistrial and (implicitly) that the trial

court's instruction did not remedy the

State's breach of the court's ruling on

Williams' motion in limine. The court

i

:

é

|

:

|

A-27

cannot agree. "Our theory of the trial

relies upon the ability of a jury to follow

instructions." Opper v. United States, 348

U.S. 84, 95 (1954). Absent special consid-

erations such as a coerced confession, the

presumption is that juries will follow

instructions. Watkins v. Sowders, 449 U.S.

341, 347 (1981); United States v. Rivera,

778 F.2d 591, 599 (10th Cir. 1985), cert.

denied, 106 S.Ct. 1384 (1986). Given the

Clarity of the trial court's instruction,

the court concludes that Williams sixth

amendment right to a fair trial was pro-

tected.” The court therefore grants the

respondents' motion for summary judgment on

Count VIII.

Y ven if the trial judge had refused

to strike Glover's statement, no habeas

relief would be available to Williams

unless admission of the testimony was

arbitrary or fundamentally unfair. E.g.,

Colley v. Sumner, 784 F.2d 984, 990 (9th

Cir. 1986), cert. denied, 107 Ss. ct. 142

(1986). Since the trial court did strike

Glover's statement, this court does not

need to reach that question.

“s. A~-28

Williams argues that certain

statements made by the State in its

rebuttal during summation were improper and

that those comments deprived him of his

right to a fair trial. On collateral

review, this court's consideration of the

prosecutor's closing argument is limited to

the inquiry of whether the prosecutor's

statement "'so infected the trial with

unfairness as to make the resulting convic-

tion a denial of due process.'" Darden v.

Wainwright, 106 S.Ct. 2464, 2472 (1986)

(quoting Donnelly v. DeChristofors, 416

U.S. 637, 643 (1974)). That determination

requires consideration of the trial record

as a whole, including whether the trial

court instructed the jury to disregard the

improper statements and the weight of the

evidence against the petitioner. Darden,

106 S.Ct. at 2472-73; Shepard v. Lane, 818

Ng te Tee :

A-29

F.2d 615, 621 (7th Cir. 1987), cert.

denied, 108 S.Ct. 296 (1987).

Williams first argues that the

prosecutor improperly vouched for the

credibility of the lineup in which Tucker

identified Williams. The court agrees that

the prosecutor's comment that the lineup

was one of the best the prosecutor had ever

seen was improper. See Record at 1028.

The trial court, however, also agreed,

sustained an objection to the comment and

instructed the jury that "the personal

evaluations of the quality of the lineup

are not relevant." Id. In light of the

substantial evidence offered against

Williams at trial and the trial court's

quick remedy for the impropriety, the court

finds that the comment did not deprive

Williams of a fair trial.

Williams further objects to the

prosecutor's reference to the "threatening"

nature of a phone call Glover received the

A-30

date of the murder. Id. at 1030. But the

trial judge sustained an objection to the

contents of the call and instructed the

jury accordingly. Id. at 1031. Even if

the trial judge had not done so, the court

would find the violation insufficient to

establish the need for habeas relief.

Finally, Williams complains that

the prosecutor in closing improperly

inferred that the jury should consider

Ginns' statement to Glover (that Williams

was the gunman) for the truth rather than

to impeach Ginns' trial testimony.

Williams did not object to the prosecutor's

characterization until after the jury had

begun its deliberations. Id. at 1051. The

trial court overruled his objection and

denied his motion for a mistrial. Id.

Although it is difficult to discern from

the trial record, it appears that defense

counsel chose to raise this objection the

first moment after the jury had left the

Ah Rass

Yee may nme toe cs

5

A-31

courtroom. Unfortunately that moment came

after the court had instructed the jury.

In those instructions, the trial judge gave

a general instruction regarding the use of

a prior inconsistent statement to impeach

a witness. Jd. at 1045. That instruction

failed to specify any particular statement,

including Ginns'.

Viewing the record as a whole,

the court concludes that the trial judge

did not err in denying Williams' mistrial

motion. While Williams' failure to make an

immediate objection does not preclude him

from seeking relief now, the court can

consider it as a factor in determining the

degree to which he was prejudiced. See

High v. Kemp, 819 F.2d 988, 995 (11th Cir.

1987). In this regard, the fact that

defense counsel failed to request a limit-

ing instruction at the time Glover testi-

fied regarding the Ginns' statement is also

instructive. See Record at 912-23.

A-32

Furthermore, as the court has already

stated, the evidence convicting Williams

was substantial. In this regard, the court

agrees with the Illinois Appellate Court's

characterization of the evidence:

Andrew Tucker gave

eyewitness testimony

that, as he stood

approximately six feet

away, he saw _ the

defendant murder

Robert Love. His

testimony was

bolstered by the fact

that he knew defendant

prior to the

commission of the

crime. Isadore Glover

identified defendant

as the man with whom

the victim had an

argument the date of

his death, which

supplied the motive

for the killing.

Defendant does not

point to any specific

inconsistencies as

casting doubt on the

identification testi-

mony.

Williams, 484 N.E.2d at 1199.

For these reasons, the court

grants the respondents summary judgment on

Count xX.

In his response to the

respondents’ motion for summary judgment,

Williams characterizes the police investi-

gation of Love's murder as one calculated

to obtain Williams' conviction at any cost.

Williams claims that the police targeted

him as their sole suspect within hours of

the shooting and created evidence which led

to his arrest and conviction. According to

Williams, the police misconduct included

but was not limited to (1) three unauthor-

ized entries into his home, (2) efforts to

coerce a confession from him after his

arrest, and (3) the imprisonment and

harassment of Ginns, Russell and Beasley

for twenty-four hours at Area Four head-

quarters during which time the police

coerced identifications of Williams.

A-34

Williams first complains that the

trial court foreclosed him from presenting

his frame-up defense to the jury. But

absent some proof that the police mis-

conduct affected the testimony of the

State's witnesses or prevented Williams

from offering exculpatory evidence, the

alleged police effort to "frame" him was

not relevant to the question of whether

Williams in fact had been the murderer.

Although Williams cannot point to any place

in the record where the trial court pre-

cluded him from offering exculpatory

evidence, he does cite to portions of the

record where the trial court rejected his

plea to introduce evidence tending to

undermine a witness’ credibility.

B. Restrictions on ‘Y’estimony

Impacting a Witness' Bias or Motive

During the State's case in chief,

defense counsel extensively cross-examined

Tucker, Glover and Clemons. During

A-35

Tucker's cross-examination, defense counsel

asked Tucker if at the time of his ques-

tioning at Area Four headquarters he had

known that his mother Rose had been ques-

tioned at Area Four two days earlier.

After Tucker responded that he had, defense

counsel asked no further questions along

that line. Aside from that one question,

defense counsel failed to probe Tucker,

Glover and Clemons on cross-examination for

any possible effect of police misconduct on

the veracity of their testimony. During

Grady's cross-examination, the trial judge

sustained hearsay objections each time

defense counsel attempted to elicit testi-

mony regarding Grady's possible fear of the

police. The trial judge further refused to

hear defense counsel's arguments at side

bar that the testimony was not being

offered for the truth of the matters

contained in the hearsay statements.

Record at 544-46.

A-36

Before the start of the defense

case, defense counsel announced their

intention to call as witnesses Detectives

Rave and Cozzi, the officers who were

involved in the early investigation and

conducted the interrogations of Ginns,

Russell and Beasley at Area Four. Defense

counsel claimed that the evidence of the

early stages of the investigation was

relevant so that the jury could make a

judgment of whether the identifications of

Tucker, Glover and Clemons were reliable.

Id. at 707. The trial judge responded that

in his view evidence of police harassment

of Ginns, Russell and Beasley would only be

relevant if one of the three testified.

. Defense counsel then argued that Ginns and

Russell's testimony about the interrogation

procedures at Area Four was relevant to

attack the identifications made by Tucker,

Glover and Clemons at Area Four. Defense

counsel further argued that if Tucker,

Pay Made tm earn p NYE NL

:

Qe ee ee SS ———— ee ee eT ee ee

A~-37

Glover and Clemons had in fact been intimi-

dated that they would not admit it on the

stand because of their fear. The trial

court rejected those arguments and

precluded inquiry in that area. Id.

at 713-14.

Williams now claims that the

trial judge's evidentiary ruling excluding

evidence of the harassment of Ginns,

Russell and Beasley which was intended to

impeach Tucker, Glover and Clemons was

error. Even if Williams argument is found

to be meritorious, a mere finding that an

evidentiary ruling was erroneous is an

insufficient basis for granting habeas

relief. The conviction stands unless the

error “amounted to a fundamental defect so

great that it inherently resulted in a

complete miscarriage of justice."

Cramer v. Fahner, 683 F.2d 1376, 1386 (7th

Cir. 1982), cert. denied, 459 U.S. 1016

(1982); United States ex rel. Fuller v.

A-38

Attorney General of Ihlinois, 589 F. Supp.

206, 209 (N.D. Ill. 1984) (Aspen, J.),

aff'd, 762 F.2d 1016 (7th Cir. 1985). This

court need not reach that question,

however, because it finds that the trial

judge acted within his discretion by

keeping the evidence out. Standing alone,

evidence of improper police conduct relat-

ing to Ginns, Russell and Beasley is not

sufficiently probative of possible police

misconduct reiating to Tucker, Glover and

Clemons to overcome the highly prejudicial

impact such evidence would have had in the

case. +

But as for the trial court's

heavy~handed restrictions on Grady's

cross-examination, this court does find

that error occurred. Limitations on

4/ If there were some evidence in the

record of police misconduct relating to

Tucker, Glover or Clemons or that one of

those three had heard of such misconduct,

this court's ruling might have been

different.

9 cement meinen fe ogee mage 0 .

A-39

cross-examination are appropriate if the

jury still has sufficient information from

which to make a fair assessment of the

witness's motives and bias. Clark v.

Q'Leary, No. 87-2801, slip op. at 2 (7th

Cir. July 25, 1988) (cases cited therein).

Williams claims that the trial court's

restrictions on Grady's cross~-examination

possibly prevented Williams from showing

Grady's fear of police harassment. The

court agrees. Unlike in the

cross-examinations of Tucker, Glover and

Clemons, in Grady's cross-examination

defense counsel appeared to be trying to

make a concrete connection between evidence

of police misconduct and the motive or bias

of a witness. If the trial judge had given

defense counsel the appropriate latitude on

Grady's cross-examination, defense counsel

might have exposed a fear which would have

led the jury to question Grady's

credibility as a witness.

A-40

But the trial court's error

standing alone does not necessitate over-

turning Williams' conviction if this court

finds that the constitutional error was

harmless beyond a reasonable doubt.

Delaware v. Van Arsdall, 106 S.Ct. 1431,

1436-37 (1986); Clark, slip op. at 15-17.

Grady was not a crucial state witness. In

fact, Grady's testimony did little other

than impeach Ginns whose testimony was more

thoroughly impeached by Glover. The court

has already indicated that Tucker and

Glover were the crucial State witnesses.

In summary, the record generally reveals

that Grady was an insignificant witness in

an otherwise strong State case. As a

result, the court finds that the trial

court's error did not deprive Williams of

a fair trial.¥

2% Williams also complains that the

trial court unfairly refused to let de-

fense counsel ask leading questions of

Detective Cozzi when Williams called

(continued...)

A-41

Finally, Williams argues that the

police and prosecutorial misconduct was so

egregious that the trial court should have

dismissed the indictment. But dismissal of

the indictment based on a fourth, fifth or

sixth amendment violation is inappropriate

"absent demonstrable prejudice, or substan-

tial threat thereof." United States v.

Morrison, 449 U.S. 361, 365-66 (1981). The

court has already rejected most of Williams

Claims of prejudice and now rejects the

remainder. Williams' speculative claim

that the police misconduct "must" have

affected State witnesses is not supported

by the trial record. Moreover, Williams'

‘conclusory statement that police misconduct

crippled defense counsel's investigation is

Y (...continued)

Cozzi in the defense case. Williams

fails, however, to explain why his in-

ability to lead Cozzi impaired Williams'

ability to show the motive opr bias of any

State witness, including Cozzi.

A-42

unconvincing absent some concrete

connection between police misconduct and

later-discovered exculpatory evidence. The

same holds true for Williams' claim of

prejudice resulting from the State's delay

between arrest and preliminary hearing --

the claim of prejudice is conclusory and

without support in the record.

Consequently, the court grants

the respondents' motion for summary judg-

ment on Counts I, III, IV, and V.

Conclusion

The court grants the respondents'

motion for summary judgment on every count

in the petition except Counts VII, IX and

XI. The court will reserve ruling on Count

XI until after reviewing the exhibits

necessary for ruling on Counts VII and Ix.

“ne court further orders the respondents to

file a second motion for summary judgment

A-43

addressing Counts VII, IX and XI with the

necessary exhibits attached by

September 15, 1988.

ENTER:

Ann Claire Williams, Judge

United States District Court

Dated: August 19, 1988

A~-44

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

UNITED STATES OF AMERICA,

ex rel., JAMES WILLIAMS,

N-04055,

Petitioner,

No. 87 C

5242

Vv.

JAMES A. CHRANS, Warden of

Pontiac Correctional Center,

and NEIL F. HARTIGAN,

Attorney General -

of the State of Illinois

ee ee ee ee ee ee ee ee See ee See See See See See

Respondents.

Background

On April 22, 1983, in the Circuit

Court of Cook County, a jury found James

Williams guilty of murder. He was

sentenced to thirty years imprisonment.

The Appellate Court of the First District

of Iliinois affirmed the verdict, People v.

Williams, 137 Ill. App. 2d 736, 484 N.E.2d

1191 (list Dist. 1985) and the Illinois

ee mre es an eee Ree mr rn NRA ream Cn nr

A-45

Supreme Court denied Mr. Williams' Petition

for Leave to Appeal.

After exhausting alle state

remedies, Mr. Williams filed an

eleven-count Petition for Writ of Habeas

Corpus under 28 U.S.C. §§ 1331, 1343,

2241-2254. On August 24, 1988, this court

granted summary judgment in the state's

favor on eight of the eleven counts con-

tained in the Petition. Ruling on the

correctness of the verdict (count 11) was

reserved until the state filed

court-ordered exhibits for counts 7 (voir

dire record) and 9 (autopsy and

scene-of-crime photographs) and accompany-

ing motions for summary judgment.

The court now grants summary

judgment in favor of the state on counts 7

and 9. The court has also reconsidered its

earlier ruling on count 4 (restricted

cross~-examination) and declines to change

its earlier grant of summary judgment in

A-46

favor of the state. The court therefore

grants summary judgment in favor of the

state on count 11 of the Petition, and

denies Mr. Williams the writ of habeas

corpus.

I

Count 7 - Voir Dire Restriction

Mr. Williams asserts that the

trial court's failure to specifically

include aupuenctuttiniaes half of the thirty

voir dire questions submitted by defense

counsel unconstitutionally denied him of

his right to a fair jury trial. The state

asserts not only that Mr. Williams did

receive a fair jury trial, but that summary

judgment must be granted on count 7 because

Mr. Williams procedurally defaulted by not

raising his specific constitutional claim

on direct appeal.

Mr. Williams never briefed voir

dire arguments based on sixth and four-

teenth amendment violations during his

\

A-47

state appeal. In that appeal, Mr. Williams

relegated a constitutional claim to a

footnote reference (Appellate Brief, pp.

64-65, n.). In his reply brief, he asked

the court to address only state voir dire

law. In his petition to the Illinois

Supreme Court, Mr. Williams makes no

argument at all regarding a federal dimen-

sion to his claim of restrictive voir dire,

confining himself instead to citation of

four federal cases and discussion of the

state voir dire statute (pp. 45-47). The

scope of the state voir dire statute,

Illinois Supreme Court Rule 234, Ill. Rev.

Stat. ch. 110A, 4 234, was expanded follow-

ing the decision in People v. Zehr, 103

Ill. 2d 472, 469 N.E.2d 1062, 1064 (1984).

Zehr held that voir dire questions regard-

ing presumption of innocence, guilt beyond

a reasonable doubt, and attitudes toward a

defendant who does not testify on his own

behalf, although formerly not allowed

A-48

because of Rule 234's restriction on

questions concerning matters of law or

instructions, must be allowed. ‘Zehr, 469

N.E.2d at 1064. Defense questions about

such issues were excluded by the trial

court in Mr. Williams' trial. The Zehr

decision, however, came after Mr. Williams’

1983 trial and may only be given prospec-

, tive application. People v. Britz, 112

Ill. 2d 314, 318-319, 493 N.E.2da 575, 577

(1986). The Zehr rule, therefore, does not

apply to Mr. Williams.

)

)

|

Even though Mr. Williams does

cite to several federal court decisions,

following a "see" signal, he fails to

specifically articulate a sixth or four-

teenth amendment violation in his state

appeal. In a recent case, the Seventh

Circuit held that a petitioner must do

, considerably more in order to preserve a

| constitutional issue for federal habeas

review:

aa a a a

A-49

The only reference to

a constitutional vio-

lation was a "see

also" reference to

some Supreme Court

cases and was plainly

insufficient to alert

the Illinois appellate

court to consider any

federal constitutional

error. Consequently,

that court decided the

matter on state

statute and Illinois

case law and the issue

is therefore fore-

closed here.

Washington v. Lane, 840 F.2d 443, 445 (7th

Cir. 1988). Mr. Williams' voir dire claim

is similarly foreclosed.

It is settled law in Illinois

that the failure to present a

constitutional claim on direct appeal

operates as a procedural default and hence

a waiver of that claim. United States ex

rel. Duncan v. O'Leary, 806 F.2d 1307, 1313

(7th Cir. 1986). A state prisoner who has

so defaulted may not obtain federal habeas

relief absent a showing of cause and actual

prejudice. Jd. Mr. Williams does not meet

A-50

this burden. Although the general group

voir dire is part of the record (R. 460-48-

1), the four-person panel venires were

conducted outside the presence of a court

reporter. (R. 480.). With no record to

the contrary, the [Illinois Appellate

Court's finding that the trial court was

within its proper discretion in restricting

voir dire will be presumed to be correct.

28 U.S.C. § 2254(d). See Williams, 484

N.E.2da at 1198.

Mr. Williams has procedurally

defaulted by failing to present his consti-

tutional claims to the Illinois courts.

Nutall v. Greer, 764 F.2d 462, 464 (7th

Cir. 1985). "State courts must have a fair

opportunity to consider constitutional

objections to state criminal convictions

before a federal court assumes the intru-

sive power to nullify those convictions on

constitutional grounds." Id. at 463.

Since Mr. Williams fails to show cause and

A-51

prejudice for this procedural default,

Duncan v. O'Leary, 806 F.2d at 1313, the

state is entitied to summary judgment on

count 7.

It

Count 9 - Admissibility of Photographs

Mr. Williams contends that the

admission of three photographs depicting

(1) a pool of blood on the floor of Brian's

bar, (2) an autopsy close-up of two bullet

chest wounds, and (3) an autopsy close-up

of a bullet neck wound and sutures were all

irrelevant, highly inflammatory, and

prejudicial. The state asserts that the

photographs are relevant since they corrob-

orate testimony of the state's witnesses

regarding factual details of the homicide.

Habeas relief will be granted for

an evidentiary error only if the evidence

was crucial, critical, and highly signifi-

cant in the case. Jameson v. Wainwright,

719 F.2d 1125, 1127 (11th Cir. 1983). If

A-52

illustrative of testimony given by

witnesses and of probative value, the

admission of gruesome photographs will not

‘violate the constitutional rights of a

defendant nor prevent him from receiving a

full and fair trial. Harding v. Lewis, 641

F. Supp. 979, 996 (D. Ariz. 1986).

a

} Generally, federal courts will not review

a state trial court's decisions in

admitting evidence. Nettles v. Wainwright,

677 F.2d 410, 414 (Sth Cir. 1982). A

federal court will only assess whether the

magnitude of any possible prejudicial

impact of gruesome photographs affected the

fundamental fairness of a criminal trial.

Id. at 414-15. The photos in Mr. Williams'

trial were neither unnecessarily

inflammatory nor materially significant to

the outcome of the verdict. They did not

affect the fundamental fairness of his

trial, so the state is entitled to summary

judgment.

a ceaeeneeneeneianiiiiands

Mr. Williams contends that

restrictions of his sixth amendment right

to confront police witnesses prevented an

effective defense and hindered impeachment

on the issue of police misconduct. The

- state asserts that Mr. Williams failed to

use available opportunities to develop his

defense theory.

Central to the right of

confrontation is the "guarantee that the

fact finder had an adequate opportunity to

assess the credibility of witnesses."

Berger v. California, 393 U.S. 314, 315

(1969). The Supreme Court has indicated

that this right is subject to discretionary

parameters:

(T)rial judges retain

wide latitude insofar

as the Confrontation

Clause is concerned to

impose reasorable

limits on such cross-

examination based on

concerns about, among

A-54 —

other things, harass-

ment, prejudice, con-

fusion of the issues,

the witness' safety,

or interrogation that

is repetitive or only

marginally relevant.

Delaware vy. Vai Arsdall, 475 U.S. 673, 679

(1986). "(‘Tjhe Confrontation Clause

guarantees an opportunity for effective

cross~-examination, not cross-examination

that is effective in whatever way, and to

whatever extent, the defense might wish."

Delaware v. Fensterer, 474 U.S. 15, 20

(1985) (emphasis in original). In

Mr. Williams' case, the trial court indi-

cated that since the allegedly

police~abused witnesses were not called to

the stand to testify, and since defendant

identification was obtained through an

independent source, it would unnecessarily

confuse the jury to allow cross-examination

on non-material issues.

When a trial judge restricts

cross-examination, it is necessary to

A-55

ascertain whether there were alternative

means available to the defense to impeach

witnesses. United States ex rel.

Blackwell v. Franzen, 688 F.2d 496, 501

(7th Cir. 1982). See also U.S. v. Cameron,

814 F.2d 403, 406 (7th Cir. 1987): "We

must resolve whether the restrictions that

the court imposed on the defendant's

cross-examination deprived the defense of

a meaningful opportunity to elicit avail-

able, relevant information that was likely

to effectively impeach the credibility of

the witnesses." Mr. Williams had a

“meaningful opportunity" to “effectively

impeach the credibility of the witnesses."

Id. Defense counsel failed to cross-examine

the state's occurrence witnesses in a

manner that would bring to light the effect

of police misconduct on the truthfulness of

their testimony. Moreover, Mr. Williams

did not use the opportunity to call to the

stand witnesses who were allegedly abused

A-56

by the police. Had iic. Williams laid the

proper foundation for this testimony by

calling police-abused witnesses to the

stand, he would have had the opportunity to

impeach the state police witnesses. Since

Mr. Williams failed to use the

opportunities available to him to develop

his defense theory, the court declines to

change its earlier ruling granting summary

judgment to the state on Count 4.

IV

Count 11 - Correctness of Verdict

The state court's explicit and

implicit factual findings are fairly

supported in the record. The scope of voir

dire lies within the discretion of the

trial judge and, absent a showing of cause

and prejudice for failure to argue consti-

tutional claims to the state court, this

court must assume that there was no abuse

of discretion. Additionally, because the

photographs were neither unnecessarily

A-57

inflammatory nor material to the outcome of

the verdict, they were constitutionally

admissible at trial. Finally, the motion

to alter the earlier ruling on count 4 is

denied because Mr. Williams did not seize

available sixth amendment confrontation

opportunities. Accordingly, the petition

for writ of habeas corpus is denied.

ENTE R:

Ann Claire Williams, Judge

United States District Court

Dated: June 29, 1989

A-58

THE PEOPLE OF THE STATE OF ILLINOIS,

Plaintiff-Appellee, v. JAMES WILLIAMS,

Defendant-Appellant.

First District (ist Division) No. 83-1619

Judgment affirmed.

Opinion filed October 21, 1985.

JUSTICE CAMPBELL delivered the

opinion of the court:

After a jury trial, defendant,

James Williams, was found guilty of murder

and sentenced to 30 years' imprisonment.

Defendant appeals, contending that (1) the

trial court erred in denying defendant's

motion to dismiss; (2) evidence of police

conduct should have been presented to the

jury; (3) the pretrial identifications of

defendant should have been suppressed since

he was arrested without probable cause;

& Justice McGloon heard the oral argu-

ment in this case, and following his

retirement, Judge Buckley was

substituted, listened to the tapes of the

oral argument and read the briefs and

record, and concurs in the opinion.

A-59

(4) he was unfairly surprised and

prejudiced by the disclosure of the

pretrial identifications; (5) improper

evidentiary rulings by the trial court

require reversal; (6) he was prejudiced by

the comments of the prosecutors during the

course of the trial; and (7) he was not

proved guilty beyond a reasonable doubt.

On June 29, 1982, at

approximately 7 p.m., the victim, Robert

Love, was shot and killed in Brian's

Lounge, a tavern located in Chicago. At

the time of the shooting, there were

approximately 20 people in the tavern,

including a number of regular patrons.

At trial, Isadore Glover, the

brether of the victim testified that on the

afternoon of the day of the incident he and

his brother were sitting on the front porch

of their house. The defendant, known to

Glover as "Bill," approached the porch and

began arguing with the victim concerning a

gee ato

A-60

$10 debt the defendant owed the victim.

The defendant was with a second man who was

carrying a folding chair. The defendant

punched the victim in the right side of his

face and defendant reached for the folding

chair. Glover, who was on crutches at the

time, tossed his brother a crutch. At that

point the defendant ran down the street,

saying, "I will see you later." Glover and

his brother returned to the porch, where

they sat for about 45 minutes. The victim

then left for Brian's Lounge. Glover

stated that later that day he received a

phone call he interpreted to be a threat on

his brother's life.

Glover further testified that the

morning following the shooting he had a

conversation with a woman named "Pussycat,"

who stated that she was present at the time

of the shooting and that the person who

shot Robert Love was the defendant. The

defendant was also known to her as "Bill."

A-61

"Pussycat" further told Glover that she was

familiar with defendant's family and

because she was afraid she did not want

Glover to reveal their conversation.

Following this conversation, Glover met

with the police and identified a photograph

of defendant as the man who had been

arguing with his brother. At a later date,

Glover made an in-person identification of

. defendant as the man who had been arguing

with his brother.

Emma Ginns testified that her

nickname was "Pussycat" and that she had

been at Brian's Lounge at the time of the

incident and that she had a conversation

with Isadore Glover the following morning.

She stated that she told Glover that his

brother had been shot but denied telling

Glover that "Bill" had shot his brother.

Charles Clemons testified that he

had been a regular at the tavern and was

present on the day of the incident. He

= GLEE LET CN Te pe aS ET ee T

|

A-62

participated in a card game at the tavern

and noted that the victim was getti.ig ready

to sit down at the card game. When the

gunfire began, Clemons dropped to the

floor. When he stood up, the gunman left

and the victim was lying on the floor. He

further testified that he viewed a lineup

that consisted of five people. On the day

of the lineup he could not positively

identify the defendant as the killer but

stated in court that the defendant was one

of the people in the lineup.

Andrew Tucker testified that he

was also at the bar on the day of the

incident. He stated that upon arriving he

entered a card game with Charles Clemons

and others. The victim was standing behind

the table awaiting his turn to sit down at

the card game. Tucker was about to leave

the table and had just bent over at the

waist to pick his jacket up off the floor.

While bent over he heard a shot. Before he

A-63

could stand up, Tucker was grabbed around

the neck from behind by the victim. As he

tried to stand up he was breught face to

face with the gunman who stood

approximately six to eight feet away. As

Tucker struggled to get loose from the

grasp of the victim, several more shots

were fired. As the victim's hold on Tucker

weakened, Tucker fell face first to the

floor. Tucker remained face down on the

floor until the shooting stopped and then

he ran out of the bar. Tucker identified

defendant in police photos as well as ina

lineup as the gunman. He further testified

that he had attended grammar school with

defendant and, as a result, he recognized

defendant at the time of the shooting.

Prior to trial, a hearing was

held on defendant's motion to quash the

arrest and suppress the identifications of

defendant. At the hearing, Margaret

Russell, Emma Ginns and Carl Beasley,

A-64

regulars who had been in the tavern at the

time of the shooting, testified. Ginns and

Russell stated that they were questioned

and intimidated by the police and that they

were released only upon identifying

defendant as the perpetrator. Ginns and

Russell asserted that the police withheld

bathroom and telephone privileges from

them, they refused to feed them and they

physically threatened them. In addition,

Russell testified that she heard Carl

Beasley “getting whipped" and Ginns stated

that she saw a police officer kick Beasley

in the groin area. Beasley testified that

he was questioned by the police for a 24-

hour period and that he denied seeing

anyone shoot Robert Love.

i. Initially, defendant con-

tends that the trial court erred in denying

his motion to dismiss the information.

Defendant's motion alleged that misconduct

by both the police and the prosecutor

A-65

denied him a fair trial. Defendant con-

tends that the police coerced Margaret

Russell, Emma Ginns and Carl Beasley into

positively identifying the defendant after

imprisoning and torturing witnesses over a

two-day period. Further, defendant argues

that the police mistreatment suffered by

these three witnesses subsequently influ-

enced other witnesses to testify for the

State.

A trial court had the authority

to dismiss an information upon statutory

grounds or a clear denial of due process.

(Ill. Rev. Stat. 1983, ch. 38, par. 114-1;

People v. Lawson (1977), 67 Ill. 2d 449,

367 N.E.2d 1244; People v. Rivera (1979),

72 Ill. App. 3d 1027, 390 N.E.2da 1259.) In

Rivera, two witnesses alleged that police

officers coerced them into testifying

against the accused at a grand jury hear-

ing. The court was fully aware of the

accused's claim since the allegations of

—- ———

—

eo

police misconduct were made at a hearing to

quash the arrest and suppress the identifi-

cation of the accused. The coercion was

denied by the police officers. The court

held that the accused failed to establish

the due process violation with certainty

and refused to dismiss the indictment.

72 Ill. App. 3d 1027, 1038, 390 N.E.2da

1259.

Similarly, in the instant case,

the allegations of police misconduct were

made at the hearing on defendant's motion

tec quash the arrest and suppress the

identification of the defendant. The

alleged coercion was completely denied by

the police officers. The trial court heard

the witness' testimony and denied the

motion due to insufficient grounds to

support and authenticate defendant's

allegations. We find that there was no

abuse of discretion on the part of the

trial court since any due process violation

A--67

was not established with certainty.

People v. Rivera (1970), 72 Ill. App. 3d

1027, 390 N.E.2d 1259.

2. Defendant further claims

that the State delayed in granting a

preliminary hearing to defendant for a

period of 21 days in order to create a case

against him. A preliminary hearing should

be performed with reasonable promptness as

determined by the facts and circumstances

of the case. (People v. Jackson (1961),

23 Ill. 2d 274, 178 N.E.2d 299.) The

defendant here was arrested on July 1,

1982, and a preliminary hearing was

scheduled for July 6, 1982. On the State's

motion the hearing was twice continued

until July 21, 1982. The record does not

indicate that defendant at any time

objected to the continuances. We do nct

find the delay so unreasonable as to

constitute error especially where defendant

Claimed n> prejudice.

A-68

3. Defendant next contends that

the trial court erred by excluding evidence

of police misconduct at trial. Defendant

argues that his rights were violated when

the trial court precluded him from present-

ing evidence of police intimidation of

Russell, Ginns and Beasley which resulted

in their identifications of defendant.

Defendant further contends that the identi-

fications made by Andrew Tucker and Isadore

Glover and the testimony of Charles Clemons

were the result of the police coercion of

Ginns, Russell and Beasley. The trial

court excluded the evidence of police

misconduct since the identifications of

defendant made by Ginns and Russell were

not going to be introduced by the State at

trial. The court stated that there

appeared to be an independent basis as to

what Beasley saw in the tavern at the time

of the shooting. Beasley did not testify

to any violence by the police nor did he

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make a positive identification of

defendant.

The relevancy standard is used in

determining the admissibility of evidence.

(In_re Application of County Treasurer

(1973), 14 Ill. App. 3d 765, 303 N.E.2d

476.) The test for relevance is whether

the evidence offered tends to prove or

disprove a disputed issue. (People v. Fair

(1977), 45 Ill. App. 3d 301, 359 N.E.2d

848.) The general rule is that the evi-

dence must be confined to the point in

issue. People v. Wilson (1948), 400 I1l.

603, 81 N.E.2d 445.

The issue in the case at bar was

the reliability of the identification

testimony of the witnesses. The State did

not call either Emma Ginns or Margaret

Russell as witnesses and their identifica-

tion testimony never came before the jury.

Defendant contends that because Ginns and

Russell complained of police coercion, it

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is likely that Andrew Tucker and Isadore

Glover were coerced by the police into

identifying defendant as the _ killer.

However, neither Tucker nor Glover com-

plained of police mistreatment. Moreover,

defense counsel never cross-examined Tucker

or Glover as to whether they had been

intimidated by the police. Under these

circumstances, we believe the trial court

was within its discretion in excluding any

evidence of police misconduct at trial.

4. Defendant further contends

that Isadore Glover's and Charles Clemons '

pretrial identification of defendant should

have been suppressed because he was

arrested without probable cause. At the

suppression hearing in the instant case,

Detective McCarthy, one of the arresting

officers, testified that eyewitnesses to

the shooting related to him that the gunman

uttered, "I told you so," before shooting

the victim with five bullets. Isadore

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Glover had given a statement to the police

that on the afternoon of the shooting he

witnessed a fight between the victim and a

man known as "Bill." During the course of

the argument, "Bill" shouted words to the

effect that he would be back to get the

victin. Following the shooting, Glover

identified a photograph of the defendant as

"Bill," the man who had fought with the

victin.

Probable cause to arrest exists

where the facts and circumstances known to

the arresting officer are sufficient to

warrant a man of reasonable caution in

believing that an offense has_ been

committed and that the person arrested has

committed the offense. (People v. Reynolds

(1983), 94 Ill. 2d 160, 445 N.E.2d 766.)

Evidence sufficient to convict is not

required to support a finding of probable

cause. (People v. Lippert (1982), 89 I11l.

2d 171, 432 N.E.2d 605.) On review, the

A-72

trial court's finding of probable cause

will not be disturbed unless manifestly

erroneous. (People v. Borges (1980),

88 Ill. App. 3d 912, 410 N.E.2d 1076.) It

is our opinion that Isadore Glover's

identification of defendant as the man with

whom the victim had a previous altercation

provided the sufficient probable cause to

arrest defendant.

5. Defendant also argues that

the pretrial identifications by Isadore

Glover and Charles Clemons should have been

suppressed because he was not represented

by counsel. The right to counsel attaches

only at or after the time that adversary

judicial proceedings have been initiated

against defendant whether by way of formal

charge, preliminary hearing or arraignment.

(Kirby v. Illinois (1972), 406 U.S. 682,

32 L. Ed. 2d 411, 92 S. Ct. 1877; People v.

Burbank (1972), 53 Ill. 2d 261, 291 N.E.2d

161.) Here, at the time of the identifica-

A-73

tions, no adversarial proceedings had been

initiated against defendant. The police

case was at the investigatory stage at the

time of the lineup. Thus, defendant's

right to counsel had not yet attached.

6. Defendant urges that he was

unfairly surprised and prejudiced by the

disclosure of the pretrial identifications

of defendant by Charles Clemons and Isadore

Glover and that a mistrial should have been

granted. The trial court stated that it

did not believe that the defendant was

caught by surprise due to the extensive

amount of discovery conducted by defense

counsel.

The trial court has discretion in

allowing the introduction of testimony not

disclosed where there is no showing of

surprise or prejudice. (People v. Ferquson

(1981), 102 Ill. App. 3d 702, 429 N.E.2d

1321.) A reviewing court will not reverse

the trial court's exercise of discretion in

A-74

the absence of a showing of surprise or

prejudice to defendant. People v. Winfield

(1983), 113 Ill. App. 3d 818, 447 N.E.2d

1029.

Prior to trial, the public

defender, who initially represented

defendant in the instant case, filed a

motion for discovery requesting a list of

witnesses that the State would call. The

State's answer to the motion included the

name and address of Isadore Glover. Later,

subsequent counsel was appointed and was

advised that all discovery had been turned

over to defendant. Further, defendant's

discovery included the police report which

referred to Charles Clemons' unsuccessful

attempt to identify defendant at a lineup.

Under these facts, it cannot be said that

defendant was unfairly surprised or

prejudiced by the identifications of

defendant by Clemons or Glover.

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7. Defendant next contends that

improper evidentiary rulings by the trial

court require reversal. Prior to trial,

defendant filed a motion in limine to

prohibit the State from making any refer-

ence to defendant's prior conviction for

voluntary manslaughter. The court ruled

that reference to the previous offense of

voluntary manslaughter was too similar to

the murder charge defendant was presently

charged with and would prejudice the

defendant. (People v. Montgomery (1971),

47 Ill. 2d 510, 268 N.E.2d 695.) The

court, therefore, limited the State's

reference to the prior conviction only as

a “prior felony conviction."

A defendant's previous conviction

can be disclosed at his trial for impeach-

ment purposes if it is within 10 years

following his conviction, unless the court

determines that the probative value of the

impeachment is outweighed by prejudice to

A-76

defendant. (People v. Axelson (1976),

37 Ill. App. 3d 566, 346 N.E.2d 24.) In

the case at bar, by its ruling limiting

reference to the prior conviction only as

a “prior felony conviction," the trial

court clearly had weighed the probative

value of the use of the conviction against

the prejudicial impact to defendant. The

trial court recognized the danger that the

jury could view the voluntary manslaughter

conviction as propensity evidence since the

charge in the instant case was murder and,

by its instructions, the court avoided any

prejudice to defendant.

8. Defendant also contends that

the court should have granted a mistrial

following testimony by Isadore Glover that

Emma Ginns had told him that she afraid to

identify defendant as the murderer. Emma

Ginns testified for the defense and denied

seeing the shooting. On cross-examination

by the State she admitted being present in

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the tavern at the time of the shooting but

denied having a conversation with Glover

relating to the shooting. On rebuttal, the

State called Isadore Glover and questioned

him as to whether Ginns told him anything

about defendant's family. He responded

that "she was very familiar with the family

and she didn't want me to say that she had

saw me because she was very afraid at the

time." The defendant then moved for a

mistrial, alleging that the State had

violated an agreement that they would not

elicit testimony about witnesses fearing

for their safety. The court ruled that the

major portion of the testimony constituted

impeachment of Ginns and ordered the remark

regarding the witness' fear to be stricken

and instructed the jury to ignore the

statement.

The decision of whether or not to

grant a mistrial is within the broad

discretion of the trial court. (People v.

A-78

Watson (1982), 103 Ill. App. 3d 992,

431 N.E.2d 1350.) That decision will not

be disturbed on review unless the defendant

establishes that he was prejudiced both by

the comment complained of any by the denial

of his motion for a mistrial. (People v.

Qmatto (1980), 88 Ill. App. 3d 438,

410 N.E. 588.) Any prejudice in the

presentation of such testimony is generally

cured by sustaining an objection thereto

and instructing the jury to disregard.

(People v. Burnett (1979), 74 Ill. App. 3d

990, 394 N.E.2d 456.) The purpose of the

rebuttal testimony of Isadore Glover in the

case at bar was to impeach Emma Ginns'

prior testimony that she did not know who

had shot and killed Robert Love and that

she denied telling Glover that she saw

defendant commit the murder. We find this

was proper impeachment of Ginns' testimony.

Moreover, any error was harmless in light

of the admonition and instructions by the

A-79

trial court. People v. Burnett (1979),

74 Ill. App. 3d 990, 394 N.E.2ad 456;

People v. Gant (1974), 58 Ill. 2a 178,

317 N.E.2d 564.

9. Defendant further argues

that the trial court abused its discretion

in admitting into evidence inflammatory

photographs of the victim's body. We find

no merit in this argument. Photographs,

including gruesome photographs, are

properly admitted where they are relevant

to establish any fact at issue, even where

defendant does not refute the victim's

identity or his cause of death. (People v.

Kubat (1983), 94 Ill. 2d 437, 447 N.E.2d

247, cert. denied (1983), 464 U.S. 865,

78 L. Ed. 2d 174, 104 S. Ct. 199.) Photo-

graphs may be properly admitted to corro-

borate testimony despite defendant's offer

to stipulate as to matters shown by the

photographs. (People v. Nicholls (1969),

42 Ill. 2d 91, 245 N.E.2d 771.) Further,

A-80

the admission of photographs is a matter

within the sound discretion of the trial

court. (People v. Stocks (1981), 93 Ill.

App. 3d 439, 417 N.E.2d 1080.) The photo-

graphs of the victim were properly admitted

into evidence here, since they corroborated

testimony as to the cause of death, the

number and location of wounds and the

manner in which they were inflicted.

10. We also find no merit in

defendant's contention that he was denied

his right to learn potential prejudices of

jurors when the trial court refused to ask

on voir dire 30 questions which he

submitted to the court. The trial court

excluded 19 of the questions ruling that

they were too time-consuming, too broad,

concerned matters of law, or were improper

since they called for the subjective

feelings of the jurors. Excluded questions

concerned the jurors' attitudes regarding

the State's burden of proof, the presump-

A-81

tion of innocence, police brutality, prior

jury service, the use of alcohol as well as

the jurors' educational and military

background and whether they had moved from

a changing neighborhood. It is our opinion

that the court's ruling was within its

broad discretion in determining the scope

of voir dire. People v. Barnes (1982),

107 Ill. App. 3d 262, 437 N.E.2d 848;

People v. Phillips (1981), 99 Ill. App. 3a

362, 425 N.E.2d 1040.

11. We consider next defendant's

contention that he was prejudiced by the

comments of the prosecutor during the

course of the trial. Defendant argues that

it was improper for the prosecutor in his

closing argument to vouch for’ the

credibility of Andrew Tucker, the principal

identification witness. The prosecutor

stated:

"Now in terms of

Mr. Tucker, he is ob-

viously an important

witness, he saw a

A-82

lineup. Now this is

one of the best line-

ups I have ever seen.

It takes place in Cook

County Jail where they

obviously have a lot

of people to choose

fron. I have seen

lineups where there

are only people, young

people, tall people

and short. .. ."*

The State maintains that these comments

constituted a legitimate reply to defense

counsel's statement in his closing argument

that Tucker was pressured by the police to

identify defendant as the murderer. We

agree. We do not view the comments of the

prosecutor as bolstering the credibility of

Andrew Tucker. The statement focuses

attention on the nature of the lineup

rather than the witness who viewed it.

Further, we believe the comment indicated

the nonsuggestive nature of the lineup and

was an appropriate response to defendant's

argument that Tucker's identification was

the result of police coercion. People v.

Carbona (1975), 27 Ill. App. 3d 988,

A-83

327 N.E.2d 546, cert. denied (1976),

424 U.S. 914, 47 L. Ed. 2d 319, 96 S. Ct.

1113; People v. Halteman (1956), 10 I11l. 2d

74, 139 N.E.2d 286.

12. Defendant further complains

that he was prejudiced when the prosecutor

referred to the telephone call received by

Isadore Glover, following the death of the

victim, as a "threatening" phone call.

Defendant's objection to the remark was

sustained. In an earlier ruling, the court

ordered the content of this telephone

conversation to be stricken from the

record, but allowed the fact that a call

was received by Glover to stand. Since the

objection by defense counsel was sustained,

the remark was stricken from the record,

and the jury was instructed to disregard

the comment, we find no error resulted.

People v. Hardy (1979), 77 Ill. App. 3d 37,

395 N.E.2d 743.

/

A-84

Finally, defendant contends that

the evidence presented at trial was unreli-

able and raised a serious doubt of guilt.

It is well established that it is the

function of the trier of fact to determine

the credibility of the witnesses, the

weight to be given their testimony and the

inferences to be drawn from the evidence.

(People v. Akis (1976), 63 Ill. 2d 296,

347 N.E.2d 733.) A reviewing court will

not set aside a criminal conviction unless

the evidence is so improbable or contrary

to the verdict as to raise a reasonable

doubt of guilt. (People v. Yarbrough

(1977), 67 Ill. 2d 222, 367 N.E.2d 666.)

We view the evidence presented in the

instant case as compelling. Andrew Tucker

gave eyewitness testimony that, as he stood

approximately six feet away, he saw the

defendant murder Robert Love. His testi-

mony was bolstered by the fact that he knew

defendant prior to the commission of the

A-85

crime. Isadore Glover identified defendant

as the man with whom the victim had an

argument the day of his death, which

supplied the motive for the killing.

Defendant does not point to any specific

inconsistencies as casting doubt on the

identification testimony.

For the foregoing reasons, the

judgment of the trial court is affirmed.

Judgment affirmed.

BUCKLEY, P.J., and O'CONNOR, J.,

concur.

mimi i ie

A-86

UNITED STATES COURT OF APPEALS

For the Seventh Circuit

Chicago, Illinois 60604

Argued June 12, 1990

June 20, 1990

Before

Hon. RICHARD A. POSNER, Circuit Judge

Hon. FRANK H. EASTERBROOK, Circuit Judge

Hon. DANIEL A. MANION, Circuit Judge

JAMES WILLIAMS,

Petitioner-

Appellant

Appeal from the

United States

District

Court for the

Northern

District of

Illinois,

Eastern

Division.

No. 89-2589 Vv.

HOWARD A. PETERS III, No. 87 C 5242

ee ee ee ee ee ee ee ee ee ee ee See ee See See ee ee

Warden, Pontiac Ann Claire

Correctional Center, Williams,

et al., Judge.

Respondents-

Appellees.

Or“er

The principal question on this

appeal is whether constitutional error

occurred at Williams' trial for murder when

the state judge blocked his lawyer's effort

A-87

to show that the police tried to coerce

three witnesses into identifying Williams

as the killer. None of these three testi-

fied, but Williams insisted that he was

entitled to show that the police abused

these three in order to establish the

circumstances influencing the testimonial

witness's decision to give evidence against

him. The exclusion of the evidence, he

submits, violated both the due process

clause of the fourteenth amendment and the

compulsory process clause of the sixth

amendment, applied to the states by the

fourteenth.

The district judge carefully

considered these and related arguments in

two extensive opinions, 1988 U.S. Dist.

Lexis 9478 (N.D. Ill.), 1989 U.S. Dist.

Lexis 7731 (N.D. Ill.). She concluded that

except with respect to one witness, counsel

had not attempted to lay the necessary

foundation. The district judge believed

— a SE ee ee ee ee Oe ee a ee ee Oe ee

A-88

that the Constitution allows the state

court to exclude such evidence, on the

ground that it would tend to distract the

jury from the main issue at trial, unless

the defense shows that the eyewitnesses

heard of the mistreatment of the other

persons. Unless they had knowledge, the

judge reasoned, their testimony inculpating

Williams could not have been affected.

It is unnecessary to rehash the

district court's analysis of this case,

with which we substantially agree. We,

like the district judge, are greatly

concerned by evidence that the police

mistreated potential witnesses; still, the

state court's exclusion of that evidence

generally did not violate the Constitution.

Although, as the district court held,

curtailing the inquiry of witness Grady

violated the Constitution, Grady was a

peripheral witness, and the limitation was

harmless beyond a reasonable doubt.

A-89

Accordingly, the judgment of the district

court is

AFFIRMED.