# Petition for Writ of Certiorari — Williams v. Chrans

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1991
- **Citation:** 498 U.S. 1082

## Text

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

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
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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.

A-75

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

A-77

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.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385020_2862%3A1. Public record. Not legal advice.