Opposition Brief — Dixon v. Illinois

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No. 94-173

IN THE OFF,

Supreme Court of the United States

OCTOBER TERM, 1994

CARL DIXON,

Petitioner,

¥.

STATE OF ILLINOIS,

Respondent.

On Petition for a Writ of Certiorari to the

Appellate Court of Illinois, First Judicial District

BRIEF IN OPPOSITION TO CERTIORARI

ROLAND W. BURRIS

Attorney General

State of Illinois

100 West Randolph Street

Suite 1200

Chicago, Illinois 60601

Attorney for Respondent

JACK O’MALLEY

State’s Attorney

Cook County, Illinois

309 Richard J. Daley Center

Chicago, Illinois 60602

(312) 443-5496

RENEE G. GOLDFARB

Counsel of Record

KEVIN SWEENEY

Assistant State’s Attorneys

Of Counsel

Midwest Law Printing Co., Chicago 60611, (312) 321-0220

BEST AVAILABLE

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“7. ;

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QUESTIONS PRESENTED

Whether certiorari should be denied because the facts of

this case are so unique that they could not lead to any gen-

eral rule of law.

Whether petitioner’s claim is barred by independent and

adequate state grounds when the Illinois Appellate Court

found that petitioner failed to preserve his claim for review

under the applicable state statute.

Whether petitioner got all he was entitled to under the

Confrontation Clause when he was given two chances to

cross-examine a witness, although he waived cross-exami-

nation both times.

TABLE OF CONTENTS

Questions Presented ............... cleaned

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Reasons for Denying the Writ:

CERTIORARI SHOULD BE DENIED BE-

CAUSE THE FACTS OF THIS CASE ARE SO

UNIQUE THAT THEY WOULD NOT LEAD TO

ANY GENERAL RULE OF LAW ..........

Il.

PETITIONER’S CONFRONTATION CLAUSE

ISSUE IS BARRED BY INDEPENDENT AND

ADEQUATE STATE GROUNDS, BECAUSE

THE APPELLATE COURT OF ILLINOIS

FOUND THAT PETITIONER FAILED TO

PRESERVE HIS CLAIM UNDER THE APPLI-

CABLE STATE STATUTE ................

ITI.

SINCE PETITIONER HAD TWO SEPARATE

OPPORTUNITIES TO CROSS-EXAMINE THE

WITNESS AND REFUSED TO DO SO BOTH

TIMES, PETITIONER WAS GIVEN HIS SIXTH

AMENDMENT RIGHT TO CONFRONTATION .

CG nan v's he Coe ceaw eee échelle

ili

TABLE OF AUTHORITIES

Cases: PAGE

California v. Green, 399 U.S. 149, 90 S. Ct. 1930,

eS 7

Coleman v. Thompson, 501 U.S. 772, 111 S. Ct.

2046, 115 L. Ed. 2d 640 (1991)............ 13

Delaware v. Fensterer, 474 U.S. 15, 106 S. Ct. 292,

MUD og in vc cccccscccccces 14, 18

Delaware v. Van Arsdall, 475 U.S. 673, 106 S. Ct.

1431, 89 L. Ed. 2d 674 (1986) ............. 22

Douglas v. Alabama, 380 U.S. 415, 85 S. Ct. 1074,

| 7, 20

Duncan v. Tennessee, 405 U.S. 127, 92 S. Ct. 785,

a a

Henry v. Mississippi, 379 U.S. 443, 85 S. Ct. 564,

EE 10

In re Zisook, 88 Ill. 2d 321, 4830 N.E. 2d 1037

ee es kv ik cceeaceuece 18

Lee v. Illinois, 476 U.S. 530, 106 S. Ct. 2056, 90

a 21

Michigan v. Lucas, 500 U.S. 145, 111 S. Ct. 1743,

EE 19, 20

Michigan v. Tyler, 436 U.S. 499, 98 S. Ct. 1942,

a 10

Monks v. New Jersey, 398 U.S. 71, 90 S. Ct. 1563,

en 8

Mancusi v. Stubbs, 408 U.S. 204, 92 S. Ct. 2308,

TS . 19, 20

People v. Dixon, 256 Ill. App. 3d 771, 628 N.E.

I I OD os oc ccc ce wecscccss 11

People v. Jones, 123 Ill. 2d 387, 528 N.E. 2d 648

SE cao oe ee ae ek ee ae 12

People v. Redd, 135 Ill. 2d 252, 553 N.E. 2d 316

I rare acai re Cre ts meng cre Ge SEN 12

People v. Rosenthal, 670 P. 2d 1254 (Colo. Ct. App.

Gees eres ree On rae i ra ee 23

People v. Yarbrough, 166 Ill. App. 3d 825, 520 N.E.

ee SB | per ere rrr Tere 12

State v. Hansen, 312 N.W. 2d 96 (Minn. 1981)... 23

State v. Smith, 415 A. 2d 553 (Maine 1980).... 23

United States v. Adams, 759 F. 2d 1099 (3d Cir.

NN eos pub ak Ch eras hae eee 23

United States v. Brainard, 690 F. 2d 1117 (4th Cir

I cs oo a eR ede a eae 23

United States v. Flores, 985 F. 2d 770 (5th Cir

SE ka os Hs 4.8 ee le ee eecs 23

United States v. Harrell, 788 F. 2d 1524 (11th Cir.

REPRO Teepe neg yaar eararpr arom mening 23

United States v. Oropeza, 564 F. 2d 316 (9th Cir

SR es ewe ee ace ee deat notes ire. 23

United States v. Owens, 484 U.S. 554, 108 S. Ct.

S83, 96 L. Ed. 2d 961 (1967) .............. 7, 18, 19

United States v. Pelton, 578 F. 2d 701 (8th Cir.

RE een nes ne rarer 23

United States v. Salerno, 868 F. 2d 524 (2d Cir.

rs ok ce Kae wh Kk eee es ok 23

United States v. Thomas, 571 F. 2d 285 (5th Cir.

NE iin 6 65 Hka Skee OAKS CTR 23

Statutes and Rules:

American Bar Association Standards Relating to

the Administration of Criminal Justice; Defense

wemeten Gtendard 67.6 2.0... 6s cccccccess

pe ee

ie Sy ge Sy Se es

iF 8 ee

No. 94-173

IN THE

Supreme Court of the United States

OCTOBER TERM, 1994

CARL DIXON,

Petitioner,

STATE OF ILLINOIS,

Respondent.

On Petition for a Writ of Certiorari to the

Appellate Court of Illinois, First Judicial District

BRIEF IN OPPOSITION TO CERTIORARI

OPINION BELOW

The opinion in this matter of the Appellate Court of

Illinois, First Judicial District, is reported as People uv.

Dixon, 256 Ill. App. 3d 771, 628 N.E. 2d 399 (1st Dist.

1993).

STATUTE INVOLVED

725 ILCS 5/115-10.1 provides in pertinent part:

Admissibility of Prior Inconsistent Statements. In all

criminal cases, evidence of a statement made by a wit-

ness is not made inadmissible by the hearsay rule if

(a) the statement is inconsistent with his testimony at

the hearing or trial, and

(b) the witness is subject to cross-examination con-

cerning the statement, and

an event or condition of which the witness had personal

knowledge, and . . . the statement is proved to have

been written or signed by the witness... .

STATEMENT OF THE CASE

Petitioner Carl Dixon was convicted at a bench trial in

Chicago of the first degree murder of Patrick Marshall. The

Appellate Court of Illinois affirmed, holding that petitioner

had been given his constitutional right to confront witness

Christopher Carlisle. People v. Dixon, 256 Ill. App. 3d 771,

628 N.E. 2d 399 (1st Dist. 1993). The Appellate Court said:

“As defendant had the opportunity to cross-examine

Carlisle, his right to confront witnesses was not violated.”

256 Ill. App. 3d at 778, 628 N.E. 2d at 907.

Evidence at Trial

Alzola Breaux, sister of the victim’s fiancee, testified that

the victim Patrick Marshall was at home around 11:30 p.m.

on May 11, 1990 when he said that he was going out with

some friends for a couple of beers. (Record on Appeal or “R.”

A12) Ms. Breaux never saw Patrick Marshall alive again.

Officer Darryl Cavin was working the midnight shift on

the south side of Chicago on May 12, 1990 when he re-

sponded to a call of a man shot. (R. Al7) Officer Cavin

found the body of Patrick Marshall lying face down on the

street and saw Christopher Carlisle standing next to the

body. (R. A18-A19)

Evidence Technician Joseph Moran testified that four dis-

charged .25 caliber shells were found at the crime scene. (R.

A29)

Ashadu McPherson testified that he had seen the victim

steal a handgun from petitioner during the night of the

murder and had seen petitioner with other guns trying to

hunt down the victim. McPherson said that a couple of

hours before the murder he had been part of a group of men

who met in a schoolyard and that petitioner, the victim and

Christopher Carlisle had been part of that group. (R. A34)

The men passed around a 9 millimeter automatic and the

victim Patrick Marshall broke and ran after taking that

gun from petitioner. (R. A36) Petitioner tried to run after

the victim, but gave up and went into his home and got a

shotgun. (R. A37-A38) Then petitioner drove around the

neighborhood with the shotgun trying to find the victim. (R.

A39) A couple of hours later McPherson drove around the

neighborhood again with petitioner, but at that time peti-

tioner had a .25 caliber handgun. (R. A41) Petitioner said

that if he didn’t get his gun back he would have to do some-

thing to the victim. (R. A42-A43)

Charles Jemison testified that he had been with peti-

tioner and McPherson when petitioner was driving around

with his shotgun trying to find the victim. (R. A46-A48)

Jemison had seen petitioner point the shotgun at another

man and demand to be told where the victim was. (R. A49)

It was stipulated that a deputy medical examiner would

testify that the victim Patrick Marshall died of three gun-

shot wounds to the back region. (R. B18-B20) The wounds

were inflicted by .25 caliber bullets. (R. B20)

Christopher Carlisle was called to the stand by the State.

This witness had given a written statement saying that he

had seen petitioner shoot the victim. This was also the wit-

ness that petitioner’s attorney twice refused to cross-

examine. (R. A66, R. B22) Carlisle testified that he had

been a friend of petitioner all his life. (R. A57) When asked

if he was still a friend of petitioner Carlisle tried to plead

the Fifth Amendment but the trial judge ordered him to

answer. (R. A58) Carlisle then admitted that he was still

petitioner’s friend.

Carlisle then testified (without claiming any privilege)

that he had been with the victim Patrick Marshall at the

time and place of the murder. (R. A58) According to Carlisle

a green car pulled up next to the victim, but Carlisle

claimed that he did not know who owned the car and that

it was too dark for him to see anyone get out of the car. (R.

A59) When asked if he had seen petitioner get out of the

car Carlisle again pleaded the Fifth Amendment, but again

was ordered to answer by the trial judge. (R. A59) Carlisle

then said that he did not see defendant get out of the car.

(R. A60)

The prosecutor then asked a series of leading questions

which together covered everything in Carlisle’s written

statement which had implicated defendant in the murder

of Patrick Marshall. In each question the prosecutor quoted

a sentence from the written statement and then asked

Carlisle if that sentence was correct. In response to each

leading question Carlisle denied that the information was

true. (R. A60-A61) Specifically, Carlisle denied that he had

seen petitioner walk up to the victim, say “where is my shit

at” and then shoot the victim several times. (R. A60)

Then the prosecutor questioned Carlisle about the written

statement and Carlisle admitted that he had given a state-

ment to Assistant State’s Attorney David Studenroth on the

morning of May 12, 1990 in the lobby of the police station

on 103rd street. (R. A62-A63) However, when the prosecu-

tor questioned Carlisle about what was in the statement

Carlisle pleaded the Fifth Amendment yet again and this

time the trial judge sustained that plea. Carlisle did deny

that he had been threatened by defendant and denied that

he was afraid of defendant. (R. A64) He also testified that

nine months after the murder he had given a statement

about the case to a court reporter at the office of petitioner’s

attorney. (R. A65-A66)

Defense counsel waived cross-examination at that point,

but asked that the sheriff return Carlisle (who was in

custody on an unrelated matter) to court the next day to

testify as a possible rebuttal witness. (R. A67) The trial

judge ordered that Carlisle be brought back to court. (R.

A67)

Assistant State’s Attorney David Studenroth testified

about the written and signed statement he had taken from

Christopher Carlisle which incriminated petitioner. Studen-

roth testified that Carlisle had not been a suspect in the

murder case, but only a witness. Carlisle had told the assis-

tant state’s attorney that, at the time and place of the mur-

der, Carlisle had seen petitioner get out of a car holding a

gun in his hand. (R. B11) Petitioner said to the victim,

“where’s my shit at,” and the victim said, “I’ll get it to you

man.” (R. B12) Petitioner then pointed the gun at the

victim and fired several times. (R. B12) The victim began to

run, but collapsed after half a block. (R. B12)

Under the authority of an Illinois statute, the trial judge

admitted as substantive evidence those portions of Christo-

pher Carlisle’s written statement which were inconsistent

with Carlisle’s testimony at trial. 725 ILCS 5/115-10.1. Peti-

tioner’s attorney declined to recall Carlisle to the witness

stand and rested without presenting any evidence. (R. B22)

The trial judge found petitioner guilty of first degree mur-

der and later sentenced petitioner to 20 years in custody.

(R. B35, D5)

REASONS FOR DENYING THE WRIT

CERTIORARI SHOULD BE DENIED BECAUSE THE

FACTS OF THIS CASE ARE SO UNIQUE THAT THEY

WOULD NOT LEAD TO ANY GENERAL RULE OF LAW.

The facts of this case are so peculiar that they are not

going to be duplicated in any other case. Moreover, any de-

cision on the Confrontation Clause issue here would depend

on the unique facts of this case and therefore any ruling by

this Court in this matter would not lead to any general rule

of law. U.S. Const., Amend. VI. Therefore certiorari should

be denied, because the precious time and resources of this

Court should not be wasted on a case of no general impor-

tance. U.S. Sup. Ct. Rule 10.1(c).

There are three unique things about this case which are

not likely to all be found in any other criminal matter:

1. The witness who gave an out-of-court statement

pleaded his right against self-incrimination to some

but not all of the questions put to him by the State at

trial, and there was no predictable pattern in when

that witness pleaded the Fifth Amendment.

2. The trial judge upheld some of the attempts of that

witness to plead the Fifth Amendment but overruled

others, and those rulings by the judge were not pre-

dictable.

3. Defense counsel at trial did not try to cross-examine

the witness either before or after the incriminating

out-of-court statement was admitted into evidence.

Since all these unique facts would be central to any ruling

by this Court on the Confrontation Clause issue, that ruling

would not amount to any principle of law which could be

generally applied in criminal cases.

It is settled law that when a witness refuses on grounds

of self-incrimination to answer any questions put to him at

trial, then the Confrontation Clause has not been satisfied

and an out-of-court statement by that witness is ordinarily

inadmissible. Douglas v. Alabama, 380 U.S. 415, 85 S. Ct.

1074, 13 L. Ed. 2d 934 (1965). It is also settled law that

when a defendant has the opportunity to cross-examine a

witness, even when that opportunity is not as complete as

the defense might wish, then an out-of-court statement by

that witness can be admitted without violating the Confron-

tation Clause. United States v. Owens, 484 U.S. 554, 108 S.

Ct. 383, 98 L. Ed. 2d 951 (1987); California v. Green, 399

U.S. 149, 90 S. Ct. 1930, 26 L. Ed. 2d 489 (1970). Here,

however, there is a strange variation on the two situations

that is unlikely to be duplicated in any other case.

Here on direct examination Christopher Carlisle volun-

tarily answered some questions, was forced by the trial

judge to answer others and successfully refused to answer —

a third group of questions. The defense did not even try to

cross-examine the witness, so there is no way of telling

what Carlisle would have said or refused to say if petition-

er’s attorney had tried to question him. Petitioner asks this

Court to rule that there was no opportunity for effective

cross-examination, but this Court could do so only by gues-

sing at the hypothetical content of a cross-examination that

never happened.

Therefore any ruling by this Court on the Confrontation

Clause issue would depend on the unique facts of this case

and would not be a particularly useful guide in other

matters. This Court might rule that because Carlisle

answered some highly relevant questions, and because the

defense did not even try to cross-examine him on any sub-

ject, then the Confrontation Clause was satisfied. On the

other hand, this Court might rule that since Carlisle suc-

cessfully refused to answer some questions then the Con-

frontation Clause was violated, even though the defense did

not try to cross-examine him. Either ruling would depend

on the unique pattern of direct examination in this case and

on the unusual decision by the defense not to cross-exam-

ine. Therefore such a ruling would not lead to any general

rule of law which could guide judges in others Confronta-

tion Clause cases.

Accordingly this Court should deny certiorari because this

case involves no “. . . important question of federal law

which has not been, but should be, settled by this

Court... .” U.S. Sup. Ct. Rule 10.1(c). The general princi-

ples of law which apply to Confrontation Clause issues have

already been decided by this Court, and they would not be

significantly clarified by any ruling on the unique facts of

this case. A grant of certiorari is inappropriate when,

because of the particular facts of the case, a decision by this

Court would not establish a significant rule of law. Duncan

v. Tennessee, 405 U.S. 127, 92 S. Ct. 785, 31 L. Ed. 2d 86

(1972); Monks v. New Jersey, 398 U.S. 71, 90S. Ct. 1563, 26

L. Ed. 2d 54 (1970).

In most cases a witness either will or will not invoke his

right against self-incrimination when questioned about a

crime. Here the witness pled the Fifth Amendment to some

questions but not others. In most cases a judge either will

or will not allow a witness to refuse to answer questions on

grounds of possible self-incrimination. Here the trial judge

allowed the witness to refuse to answer some questions, but

ordered the witness to answer others. In most cases a

defense lawyer will cross-examine a witness who gives im-

portant testimony about a crime, or at least the lawyer will

not refuse to cross-examine and then claim that the Con-

frontation Clause was violated. Here, on the other hand,

petitioner’s trial attorney declined to cross-examine the wit-

ness, but petitioner claimed on appeal that his right to

effective cross-examination had been denied. The facts of

this case, insofar as they are relevant to the Confrontation

Clause, are not likely to reoccur in any other case. There-

fore this Court should deny certiorari since there is no

question of general importance to be decided here.

II.

PETITIONER’S-CONFRONTATION CLAUSE ISSUE IS

BARRED BY INDEPENDENT AND ADEQUATE STATE

GROUNDS, BECAUSE THE APPELLATE COURT OF ILLI-

NOIS FOUND THAT PETITIONER FAILED TO PRESERVE

HIS CLAIM UNDER THE APPLICABLE STATE STATUTE.

Petitioner argues that he can raise his Confrontation

Clause issue in this Court even though his trial lawyer

twice refused to try to cross-examine the witness whose out-

of-court statement was admitted into evidence. However,

the steps necessary to preserve a claim for review in state

court are not a matter of federal constitutional law, but

rather a matter of state law. As the Appellate Court of

Illinois found, under the Illinois statute governing admis-

sion of out-of-court statements it is necessary to try to

cross-examine a witness before claiming on appeal that the

witness was not available for cross-examination. 725 ILCS

5/115-10.1. Petitioner’s failure to comply with the require-

ments of the statute is an independent and adequate

ground for the decision of the Appellate Court of Illinois.

Therefore petitioner has left this Court with nothing to

review, since his Confrontation Clause issue is barred on

independent and adequate state grounds.

“Failure to present a federal question in conformance

with state procedure constitutes an adequate and indepen-

dent ground of decision barring review in this Court, so

long as the State has a legitimate interest in enforcing its

procedural rule.” Michigan v. Tyler, 436 U.S. 499, 512, n. 7,

98 S. Ct. 1942, 1951 n. 7, 56 L. Ed. 2d 486, 500 n. 7 (1978).

See also Henry v. Mississippi, 379 U.S. 443, 85 S. Ct. 564,

13 L. Ed. 2d 408 (1965). Illinois has a specific statute gov-

erning the conditions under which the out-of-court state-

ment of a witness may be admitted into evidence after that

witness testifies at a criminal trial. 725 ILCS 5/115-10.1.

One of the conditions for admission of an out-of-court state-

ment under the statute, as under the Confrontation Clause,

is that the witness be subject to cross-examination. 725

ILCS 5/115-10.1(b). The Illinois reviewing court held that

petitioner was barred from claiming on appeal that Christo-

pher Carlisle was not available for cross-examination when

defense counsel did not even try to cross-examine him.

In holding that petitioner’s claim was barred under the

statute, the Appellate Court of Illinois said:

The second element of section 115-10.1 requires that

the witness be available for cross-examination concern-

ing his prior statement. This requirement was unequiv-

ocally satisfied. At the conclusion of Carlisle’s direct

examination testimony, the trial court inquired as to

whether defense counsel wanted to cross-examine

Carlisle. Defense counsel responded, “No cross, your

Honor.” Defense counsel, then, had the full opportunity

to cross-examine Carlisle who was readily available.

This is all section 115-10.1 mandates.

Defendant argues that, because Carlisle invoked his

fifth amendment privilege on direct examination, he

would have been unavailable to testify on cross-exami-

nation. As previously elucidated, Carlisle did testify

substantively at trial and defense counsel decided not

to cross-examine him presumably because his testimony

was favorable to defendant.

This contention further assumes that Carlisle would

have asserted his fifth amendment privilege when

cross-examined by defense counsel. This, of course, is

speculation. Defendant cannot claim a lack of opportu-

nity to cross-examine Carlisle when he did not even

attempt to call Carlisle to the stand. People v. Dixon,

256 Ill. App. 3d 771, 776-77, 628 N.E. 2d 399, 403-04

(1st Dist. 1993).

Thus the Illinois reviewing court held that under the

statute petitioner, having not even attempted to cross-

examine a witness who had given substantive testimony on

direct, had failed to preserve for review the claim that the

witness was not available for cross-examination.

Later in its opinion the Illinois reviewing court held that,

having failed to preserve his claim under the statute

governing admission of out-of-court statements by a wit-

ness, petitioner had also forfeited his related claim under

the Confrontation Clause. That court said: “As defendant

had the opportunity to cross-examine Carlisle, his right to

confront witnesses was not violated.” 256 Ill. App. 3d at

778, 628 N.E. 2d at 404. Thus the Illinois reviewing court

held that petitioner, being barred under the statute from

claiming that the witness was not available for cross-exam-

ination, was also barred on the same grounds from claiming

that he was denied the right to confront that witness.

Although the facts of this case are unusual, the Illinois

reviewing court simply applied established Illinois law in

holding that petitioner had forfeited his Confrontation

Clause issue by not even trying to cross-examine the

witness. In fact there is a definitive decision of the Illinois

Supreme Court holding that a defendant who does not try

to cross-examine a witness waives any claim that he was

denied his constitutional right to confrontation. People v.

Jones, 123 Ill. 2d 387, 528 N.E. 2d 648 (1988). In Jones the

Illinois Supreme Court said:

In this case, however, defense counsel made no attempt

to question Mr. Dare, and we decline to speculate

whether the witness would or would not have responded

to cross-examination on those matters to which he testi-

fied on direct. Without more, we are unable to conclude

here that the defendant was denied his right to confront

the witness. 123 Ill. 2d at 407, 528 N.E. 2d at 657.

Thus the highest court of Illinois has held in a definitive

ruling that a defendant who does not even try to cross-

examine a witness has waived the constitutional claim that

he was denied the right to confront that witness. Thus the

Illinois Appellate Court in petitioner’s case simply enforced

an established state procedural rule in holding that peti-

tioner failed to preserve his Confrontation Clause issue for

appeal when he refused to cross-examine the witness.’

The steps necessary to preserve an issue for appellate

review are a matter of state law, not federal constitutional

law. When a defendant has failed to preserve a claim for

' The Illinois courts have recognized, however, that when a wit-

ness refuses to answer all questions then the witness is not avail-

able for cross-examination and an out-of-court statement by that

witness is not admissible under the Illinois statute. People v.

Redd, 135 Ill. 2d 252, 553 N.E. 2d 316 (1990). Thus in a case in

which a witness refused to answer any further questions and

asked to be sent to jail for contempt, it was held that the witness

was not available for cross-examination even though the defense

did not attempt to question the witness. People v. Yarbrough, 166

Ill. App. 3d 825, 520 N.E. 2d 116 (5th Dist. 1988). Redd and Yar-

brough are consistent on their facts and their logic with the rul-

ing of the Appellate Court of Illinois in petitioner’s case. Here

Christopher Carlisle never refused to answer any question when

ordered to do so and here Carlisle had given important substan-

tive testimony on direct examination. Therefore the only way to

find out if Carlisle was available for cross-examination would

have been to try to cross-examine him.

review in accordance with state law, then review by this

Court is barred provided the state has a legitimate interest

in enforcing its rule. “This Court will not review a question

of federal law decided by a state court if the decision of that

court rests on a state law ground that is independent of the

federal question and adequate to support the judgment.”

Coleman v. Thompson, 501 U.S. 772, 111 S. Ct. 2546, 2553-

54, 115 L. Ed. 2d 640, 655 (1991). The procedure necessary

to preserve petitioner’s Confrontation Clause issue for

appellate review is and ought to be a question of Illinois

law.

Illinois has a legitimate interest in requiring a defendant

to try to cross-examine a witness before claiming on appeal

that the defense was denied effective cross-examination.

Only if defense counsel attempts to cross-examine a witness

will the reviewing court know what questions the defense

wished to ask and whether the witness was willing to

answer them. If the defense refuses to even try to cross-

examine then the Confrontation Clause issue is abstract,

since the reviewing court will have no way of knowing what

cross-examination would have been attempted. But when

defense counsel tries to cross-examine the witness then the

issue on appeal is concrete, since the reviewing court will

know what questions the witness answered or refused to

answer. Certainly a state has a legitimate interest in seeing

that concrete and specific issues are presented to its review-

ing courts for decision. Only then can important questions,

such a harmless error, be decided in a realistic fashion.

Therefore the Illinois rule on Confrontation Clause issues

is based on a legitimate state interest and is binding on

federal review.

Petitioner has attempted without discussion to turn a

question of state appellate procedure into one of federal

constitutional law. His petition argues that a defendant

should not have to go through the allegedly futile act of

attempting to cross-examine a witness who has refused on

Fifth Amendment grounds to answer some of the questions

on direct examination. (Pet. 13-19) Whatever one thinks of

petitioner’s argument, it deals with a policy question on

criminal procedure rather than any issue under the Sixth

Amendment. The Confrontation Clause guarantees the

right to reasonably effective cross-examination. Delaware v.

Fensterer, 474 U.S. 15, 106 S. Ct. 292, 88 L. Ed. 2d 15

(1985). It says nothing about how an issue under that

clause should be preserved for review in state court. Here

petitioner failed to preserve his constitutional claim under

a reasonable rule of Illinois law, so review by this Court is

barred.

It should be noted that on the facts of this case Illinois

has a particularly strong interest in enforcing its rule. The

witness in question, Christopher Carlisle, voluntarily

answered some important questions on direct examination

and answered other important questions after he was

ordered to do so. He successfully pled his privilege against

self-incrimination only to a limited number of questions.

Therefore defense counsel should have attempted to cross-

examine Carlisle, as Illinois law requires in order to pre-

serve the Confrontation Clause issue for review. It is entire-

ly possible that Carlisle was willing to answer or would

have been ordered to answer the questions, if any, that

defense counsel wanted to ask.

Illinois law requires a defendant, before asserting on

appeal that he was denied the right to effective cross-exam-

ination, to actually attempt to cross-examine the witness.

That is a reasonable state rule supported by a legitimate

state interest. It provides an independent and adequate

state ground for the reviewing court decision in this case,

so petitioner has no legal basis for requesting review by

this Court.

Ill.

SINCE PETITIONER HAD TWO SEPARATE OPPOR-

TUNITIES TO CROSS-EXAMINE THE WITNESS AND

REFUSED TO DO SO BOTH TIMES, PETITIONER WAS

GIVEN HIS SIXTH AMENDMENT RIGHT TO CONFRON-

TATION.

Petitioner asks this Court to speculate about the content

of a cross examination which never took place. He claims he

was denied his rights under the Confrontation Clause, but

he twice refused to cross-examine the witness when he had

a chance to do so. Since petitioner was given chances to

cross-examine Christopher Carlisle, he was given his con-

stitutional right to confront that witness. As for petitioner’s

argument that he was denied the right of effective cross-

examination, that is pure speculation which is not sup-

ported by the record. The record shows that the witness

would have answered at least some questions about the

murder, but petitioner deprived this Court of any chance to

know if the witness would have answered whatever ques-

tions defense counsel might have asked on cross-examina-

tion. Since petitioner was given the chance to cross-examine

but refused to do so, he was given everything that the Con-

frontation Clause requires.

As noted, on direct examination by the State Christopher

Carlisle voluntarily answered some questions, was ordered

by the trial judge to answer other questions and successful-

ly pled his right against self-incrimination as to a third

group of questions. After Carlisle testified, petitioner’s

attorney said, “No cross, your Honor.” (R. A66) However,

petitioner's attorney asked that Carlisle, who was in

custody on an unrelated matter, be returned by the sheriff

to the court the next day for possible testimony. Petitioner's

attorney said:

[PETITIONER’S ATTORNEY]: Your Honor, may I ask

that the writ of habeas corpus [ad testificandum] that

was issued for Mr. Carlisle issue for tomorrow, in case

I need him as a rebuttal witness?

THE COURT: Sure. Writ is continued. (R. A67)

Thus petitioner’s trial attorney certainly did not think that

Carlisle was unavailable for examination by the defense,

since petitioner’s attorney asked that Carlisle be returned

to court so that the defense would have a chance to recall

him. However, the next day defense counsel rested at trial

without recalling Carlisle. (R. B22)

Petitioner asserts without justification that the witness

Christopher Carlisle certainly would have refused to answer

questions if defense counsel had tried to cross-examine him.

That assertion is just not supported by the record. On direct

examination Carlisle did answer some questions voluntarily

and was ordered by the trial judge to answer others. More-

over, the record suggests that Carlisle did not really fear

self-incrimination but was actually refusing to cooperate

with the prosecution because he wanted to help petitioner

get an acquittal. Therefore the record shows that it is

entirely possible that Carlisle would have answered what-

ever questions defense counsel might have put to him at

trial. Since petitioner had a chance to cross-examine the

witness at trial, and since the record shows that the

witness might have answered petitioner’s hypothetical

questions, petitioner was given his Sixth Amendment right

to confront witnesses.

On direct examination by the State the witness Christo-

pher Carlisle voluntarily testified that he had been present

at the scene of the murder at the time the victim was

killed, and had seen the car used by the murderer drive up

to the victim. (R. A58) Carlisle also voluntarily testified

that for all his life he had been a friend of petitioner. (R.

A58) In addition, Carlisle testified that he remembered

giving a statement to an assistant state’s attorney at a

police station. (R. A61) Also, Carlisle voluntarily testified

that before trial he had gone to the office of petitioner’s

attorney and had given a statement to a court reporter

about the case. (R. A65-A66)

Carlisle attempted to plead his right against self-incrimi-

nation as to what he saw at the time of the murder, but the

trial judge ruled that such testimony would not be incrimi-

nating to Carlisle and ordered Carlisle to answer. (R. A59-

A60) Then Carlisle testified about what he had seen at the

time of the murder, denying that he had seen petitioner

shoot and kill the victim. (R. A59-A61)

Thus Christopher Carlisle gave at least some testimony

about every aspect of this case. He testified about what he

had seen at the time of the murder, about his relationship

with petitioner, and about his written statements given to

the prosecution and the defense. He successfully pled the

Fifth Amendment only about the content of his written

statement to the assistant state’s attorney. (R. A63-A64)

There is no way of telling from the record what defense

counsel might have asked on cross-examination or whether

Carlisle would have answered those questions.

The only thing that is certain from the record is that peti-

tioner’s attorney twice refused to cross-examine the witness.

There is nothing in the record to show that defense counsel

wanted to ask any questions of Christopher Carlisle, that

Carlisle would have refused to answer those unknown ques-

tions or that the trial judge would have allowed Carlisle to

refuse to do so. Petitioner’s argument, that he did not have

a chance to effectively cross-examine the witness, is based

on nothing but unsupported speculation. Since petitioner

was given two chances to cross-examine the witness, but

refused to do so, petitioner was given his rights under the

Confrontation Clause.

Indeed, the record suggests that the witness Christopher

Carlisle was trying to help petitioner and might have been

entir y cooperative if questioned by defense counsel. After

all, petitioner and Carlisle were lifelong friends. (R. A58) In

addition, Carlisle was in custody on an unrelated matter

and may have feared cooperating with the prosecution

against a fellow inmate. (R. A67) Also, Carlisle had gone to

the office of petitioner’s attorney and repudiated the written

statement he had given to the assistant state’s attorney. (R.

A4-A5, A65-A66) The point is that on the facts of this case

the only way to find out if Carlisle would have answered

questions on cross-examination would have been to ask

those questions.”

The Confrontation Clause guarantees an adequate oppor-

tunity to cross-examine an adverse witness, but does not

guarantee cross-examination which is effective in whatever

way and to whatever extent that the defendant might wish.

United States v. Owens, 484 U.S. 554, 108 S. Ct. 838, 98

L. Ed. 2d 951 (1988); Delaware v. Fensterer, 474 U.S. 106

S. Ct. 292, 88 L. Ed. 2d 15 (1985). More importantly, if

cross-examination has been restricted as a result of a defen-

dant’s own actions, then there is no violation of the Con-

2 Indeed, the trial judge implicitly found that Carlisle had no

reasonable grounds to fear self-incrimination with respect to the

murder, but was merely pleading the Fifth Amendment in order

to avoid testifying against petitioner. See In re Zisook, 88 I]. 2d

321, 430 N.E. 2d 1037 (1981). The trial judge ordered Carlisle to

testify as to what he had seen at the time and place of the mur-

der, even though Carlisle had tried to plead his right against self-

incrimination. (R. A58-A59) But the trial judge sustained

Carlisle’s Fifth Amendment plea to questions about his written

statement, presumably to protect Carlisle from incriminating

himself on a perjury charge for false testimony at trial favoring

petitioner. (R. A63-A64) In any event, the correctness of the trial

judge’s rulings on Carlisle’s Fifth Amendment rights is not at

issue in this matter.

frontation Clause. Michigan v. Lucas, 500 U.S. 145, 111

S. Ct. 1743, 114 L. Ed. 2d 205 (1991); Mancusi v. Stubbs,

408 U.S. 204, 92 S. Ct. 2308, 33 L. Ed. 2d 293 (1972). Here

petitioner’s trial attorney twice refused to cross-examine

Christopher Carlisle when given the opportunity, so the

only restriction on cross-examination shown by the record

was the result of petitioner’s own choice.

In the Owens and Fensterer cases this Court held that the

Confrontation Clause may be satisfied even if a State’s wit-

ness cannot be cross-examined by the defense on some im-

portant aspects of his testimony. In Owens a witness,

because of severe brain damage, had no recollection at the

time of trial of the attack which injured him. United States

v. Owens, 484 U.S. 554, 108 S. Ct. 838, 98 L. Ed. 2d 951

(1988). In Fensterer an expert witness testified about his

findings, but could not remember how he had reached those

conclusions. In each case this Court held that the defendant

had been given his constitutional right to confront those

witnesses, even though the witnesses were effectively un-

available for cross-examination on important subjects.

Similarly, petitioner here was given his right to confront

Christopher Carlisle, although Carlisle had refused to

answer questions on one subject on direct examination and

might (or might not) have refused to answer some questions

on cross-examination.

But it is more important that the record does not show

what, if any, restrictions were imposed on petitioner’s cross-

examination because petitioner’s trial attorney did not

attempt to cross-examine the witness. In the Lucas and

Stubbs cases this Court held that when apprrent restric-

tions on cross-examination were the result of defense

counsel’s own actions, then there is no violation of the Con-

frontation Clause. In Lucas a defendant charged with rape

was unable to cross-examine the victim about her past

sexual relations with that defendant because defense coun-

sel had failed to move for a hearing under a rape shield

statute. Michigan v. Lucas, 500 U.S. 145, 111 S. Ct. 1743,

114 L. Ed. 2d 205 (1991). This Court held that since the

defendant’s own attorney was responsible for the restriction

on cross-examination, there was no violation of the Confron-

tation Clause. In Stubbs the defendant’s attorney at a pre-

vious trial, either through lack of preparation or through

trial strategy, avoided a certain line of cross-examination of

a key witness. Mancusi v. Stubbs, 408 U.S. 204, 92 S. Ct.

2308, 33 L. Ed. 2d 293 (1972). This Court held when the

witness was unavailable at a second trial a transcript of his

testimony could be admitted, although defense counse! at

the second trial wanted to ask the questions the defense

avoided at the first trial. Thus when a restriction on cross-

examination is the result of the actions of defense counsel,

then there is no violation of the Confrontation Clause.

Here petitioner’s trial attorney twice refused to try to

cross-examine Christopher Carlisle. As a result we do not

know what questions mighi have been asked on cross-exam-

ination or whether Carlisle would have answered them. The

only person who restricted cross-examination of the witness

was petitioner’s own attorney, so there has been no viola-

tion of the Confrontation Clause.

Petitioner relies heavily on the Douglas decision of this

Court, but that was a case where there could be no cross-

examination because there was no testimony of substance

on direct examination. Douglas v. Alabama, 380 U.S. 415,

85 S. Ct. 1074, 13 L. Ed. 2d 934 (1965). In Douglas the

State called a witness who refused on grounds of self-

incrimination to answer any questions other than to give

his name and address. This Court held that an out-of-court

statement by the witness was inadmissible. Here, on the

other hand, Christopher Carlisle voluntarily answered a

number of important questions on direct examination and

was ordered by the trial judge to answer others. Realistical-

ly, there is just no way of knowing what questions he might

have been asked on cross-examinatien or whether he would

have answered them. Thus the situation in Douglas, where

there was absolutely nothing to cross-examine on and the

witness refused to answer every question, is certainly not

present here. In Douglas there was no testimony by the

witness and no possibility that any questions would have

been answered on cross-examination. In petitioner’s case

there was important testimony by the witness on direct

examination and it was certain that the witness would have

answered at least some question on cross. Thus Douglas is

just not on point here, since the facts surrounding any

opportunity to cross-examine were completely different than

they were at petitioner’s trial.

Petitioner also relies on the Lee decision, in which this

Court specifically refused to address the question of

whether a co-defendant was available for cross-examination

after the co-defendant’s out-of-court statement was admit-

ted into evidence against the defendant. Lee v. Illinois, 476

U.S. 530, 539, 106 S. Ct. 2056, 2061, 90 L. Ed. 2d 514, 525

(1986). Thus Lee has nothing to do with this case, particu-

larly as Christopher Carlisle was not a co-defendant, did

take the stand and did give important testimony on direct

examination.

Petitioner simply asserts that his attorney refused to try

to cross-examine Christopher Carlisle because that attorney

thought that any attempt at cross-examination would be

futile. (Pet. 5, 7) The record does not support that assertion.

The common-sense explanation of defense counsel’s refusal

to cross-examine is that he was afraid, not that Carlisle

would refuse to testify, but that Carlisle would testify on

cross and hurt the defense. As the trial judge found,

Carlisle had seen petitioner shoot the victim to death.

Nevertheless, on direct examination Carlisle denied that he

had seen any such thing. (R. A58-A61) The record suggests

that petitioner’s attorney thought that the defense had done

as well as it could with Christopher Carlisle, and that

cross-examination could only hurt the defense.

In other words, for understandable reasons petitioner’s

trial attorney twice refused to cross-examine a witness.

Petitioner is bound by that decision, so he has no claim

under the Confrontation Clause.

Ethics

Petitioner makes the strange suggestion that it would

have been unethical for his trial attorney to try to cross-

examine Christopher Carlisle. (Pet. 20-21) However, since

Carlisle had given some important testimony on direct,

cross-examination of him would have been entirely proper.

Delaware v. Van Arsdall, 475 U.S. 673, 106 S. Ct. 1431, 89

L. Ed. 2d 674 (1986). This is particularly true as it was

unclear to what extent Carlisle would plead the privilege

against self-incrimination on cross-examination and to what

extent the trial judge would sustain that plea.

Petitioner relies on an American Bar Association Stan-

dard providing that defense counsel shall not call a witness

in the presence of a jury when the lawyer knows that the

witness will claim a valid privilege not to testify. ABA Stan-

dards Relating to the Administration of Criminal Justice;

Defense Function Standard 4-7.6. That is not a rule of law

applying to Illinois trials and, even if it were, by its own

terms it would not have applied at petitioner’s trial. This

was a bench trial, so there was no jury to be prejudiced or

misled if Carlisle had pled the Fifth Amendment on cross-

examination. Petitioner also cites cases saying a defendant

has no right to call a witness who is certain to refuse to

testify on grounds of self-incrimination. However, Christo-

pher Carlisle was not called by petitioner but by the State,

and had given important testimony on direct examination.

Alleged Conflict of Authority

Petitioner falsely claims that there is a conflict of authori-

ty on whether a defendant must attempt to question a wit-

ness before claiming on appeal that the witness was not

available to testify. (Pet. 17-19) In fact the cases cited by

petitioner follow a reasonably consistent rule of law and if

the results of those cases vary it is because the facts of the

cases also vary.

Petitioner cites certain cases holding that a witness was

unavailable to testify and that thus an out-of-court state-

ment was admissible under some rule of evidence. United

States v. Flores, 985 F. 2d 770 (5th Cir. 1993); United States

v. Harrell, 788 F. 2d 1524 (11th Cir. 1986); United States v.

Adams, 759 F. 2d 1099 (3d Cir. 1985); United States v.

Brainard, 690 F. 2d 1117 (4th Cir. 1982); United States v.

Thomas, 571 F. 2d 285 (5th Cir. 1978); State v. Hansen, 312

S.W. 2d 96 (Minn. 1981); State v. Smith, 415 A. 2d 553

(Maine 1980). But in those cases the declarant was either

a co-defendant at the same trial or had specifically refused

in person or through counsel to testify to anything, so the

facts of the case showed that the declarant was unavailable.

On the other hand, petitioner cites certain cases in which

a declaration against penal interest was held to be inadmis-

sible because the declarant was not shown to be unavail-

able to testify. United States v. Salerno, 868 F. 2d 524 (2d

Cir. 1989); United States v. Pelton, 578 F. 2d 701 (8th Cir.

1978); United States v. Oropeza, 564 F. 2d 316 (9th Cir.

1977); People v. Rosenthal, 670 P. 2d 1254 (Colo. Ct. App.

1983). However, in none of those cases was the declarant a

co-defendant at the same trial and in none of those cases

did the declarant actually claim the privilege against self-

incrimination. Therefore the reviewing courts ruled on the

facts that the witness was not shown to be unavailable.

Accordingly, there is no conflict between the two groups of

cases cited by petitioner, since in all such cases availability

of a witness was determined according to the particular

facts in the record.

Also, most of the lower court precedents cited by petition-

er do not rely on the Confrontation Clause to decide the

case. The decision in most of those cases is based on a state

or federal rule of evidence rather than any constitutional

provision. Therefore not only do the cases cited by petition-

er fail to show a conflict of authority, most are not even

relevant to this matter. They have nothing to do with peti-

tioner’s claim that the Confrontation Clause imposes a uni-

form procedural rule on all criminal cases in all state and

federal courts.

Summary

Petitioner claims that he was denied the right to confront

a witness against him although petitioner’s attorney twice

refused to try to cross-examine that witness. Petitioner’s

whole argument for a grant of certiorari is based on his

assertion that it was “beyond question” that Christopher

Carlisle would refuse to testify on cross-examination (Pet.

20) That assertion is false and because it is false there is no

reason for this Court to review this case. On direct exami-

nation Carlisle answered some questions voluntarily and

was ordered by the trial judge to answer others. Carlisle

successfully pled the Fifth Amendment only as to questions

on a single subject, but the record suggests that he did so

to protect petitioner rather than because he actually feared

self-incrimination. What Carlisle, defense counsel and the

trial judge might have done on cross-examinetion is any-

body’s guess. However, it is certain that the facts of this

case are unique to the point that review by this Court

would not lead to any general rule of law. A defendant who

refuses to even try to cross-examine a witness should not

claim on appellate review that he was denied any right

under the Confrontation Clause. Accordingly, this Court

should deny certiorari.

CONCLUSION

Respondent, the State of Illinois, respectfully requests

that this Honorable Court deny the petition for a writ of

certiorari.

Respectfully submitted,