Petition for Writ of Certiorari — Henderson v. DeTella
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OES OF THE CLERK
No.
In The
Supreme Court of the United States
October Term, 1996
*
LADELL HENDERSON, #N-51632,
Petitioner,
GEORGE E. DETELLA, Warden,
Respondent.
Petition For Writ Of Certiorari
To The United States Court Of Appeals
For The Seventh Circuit
¢
PETITION FOR WRIT OF CERTIORARI
a
KATHRYN T. DITMARS
McDermott, Witt & Emery
227 West Monroe Street
Chicago, Illinois 60610
(312) 372-2000
Attorney for Petitioner Ladell Henderson
COCKLE LAW BRIEF PRINTING CO., (800) 225-6964
OR CALL COLLECT (402) 342-2831
II.
QUESTIONS PRESENTED FOR REVIEW
Whether Henderson’s custodial statement was admit-
ted erroneously and in violation of his Fifth and
Fourteenth amendment rights because, in light of
Henderson’s subpar mentality, the custodial state-
ment was not made voluntarily, nor was it made after
a voluntary, knowing and intelligent waiver of his
Miranda rights.
Whether the lower courts erred in failing to address
Henderson’s argument relating to the denial of due
process resulting from an erroneous attempted mur-
der jury instruction.
li
TABLE OF CONTENTS
Page
PETITION FOR WRIT OF CERTIORARI............ 1
OCPREGIORGS DULG. 6 sonic yo epee sae e 1
PASE SUE 0: 0k s 0.040 d diene lars 1
CONSTITUTIONAL PROVISIONS, STATUTES AND
RULES INVOLVED IN THIS CASE.............. 2
STATEMENT OF} TARE GAGE. 6st eiseeeies ss... 3
REASONS FOR GRANTING THE PETITION....... 5
I. HENDERSON’S CUSTODIAL STATEMENT
WAS ERRONEOUSLY ADMITTED IN VIOLA-
TION OF HIS FIFTH, SIXTH AND FOUR-
TEENTH AMENDMENT RIGHTS............ 5
A. Henderson’s Statement Was Not Given
Venue... . ...<4asnmeeie teens 7
B. Defendant Gave His Statement Without
An Intelligent, Knowing, and Voluntary
Waiver of his Miranda Rights............ 10
II. HENDERSON WAS DENIED DUE PROCESS
RIGHTS BY THE ERRONEOUS ATTEMPTED
MURDER INSTRUCTION. ............002000- 13
CONCLERIIING ..... «0 10 ccuenc epee enn ees 18
iii
TABLE OF AUTHORITIES
Page
Cases
Baskin v. Clark, 956 F.2d 142 (7th Cir. 1992). .... 6. 7, 20
Colorado v. Connelly, 479 U.S. 157, 107 S. Ct. 515, 93
ees NN PE SND sn. 5 os nla rev wo a.d.d-o 0 oe 0 7, 8
Cooper v. Griffin, 455 F.2d 1142 (5th Cir. 1972)....... 11
Cupp v. Naughten, 414 U.S. 141, 94S. Ct. 396, 38 L.
Me A es ag SCS 6 bbw hordes eee ss cee daze 14
Edwards v. Arizona, 451 U.S. 477, 101 S. Ct. 1880, 68
er MED bo kek esd vwciecncvstdebsdatvevs. 10
Grossart v. Dinaso, 758 F.2d 1221 (7th Cir. L.) 13
Lego v. Twomey, 404 U.S. 477, 92 S. Ct. 619, 30 L.
Me ao bios so ou baw vw «be seoehes ccc, 10
Leyra v. Denno, 347 U.S. 556, 74 S. Ct. 716, 98 L. Ed.
UN Sone UR SLs saa es siveacce ie beessycavsce ce 7
Miller v. Dugger, 838 F.2d 1530 (11th Cir. 1988),
cert. den., 486 U.S. 1061 (1988) .................... 11
Moran v. Burbine, 475 U.S. 412, 106 S. Ct. 1135, 89
eM I I Nis vo wdccntes sede vivnsonce 10
People v. Harris, 72 Ill. App. 3rd 16, 377 N.E.2d 28
TREES veltnk bey 4045-0 44k ses vin-v vax'e eos 15, 16
People v. Henderson, 175 Ill. App. 3d 483, 529
N.E.2d 1051 (1st Dist. 1988), app. den. 125 Ill. 2d
NN nee Ek d oehe Nid uddhssa eaten iene 1, 4
People v. Henderson, 125 Ill. 2d 570, 537 N.E.2d 814
ERG ea wUu eer On ESS ¥ 05 ab <e00 ous 0sicoecceacs 2
People v. Trinkle, 68 Ill. 2d 198, 369 N.E.2d 888
ER Ghia obs Lacs 6 s% cavcscsecceccducecs 16
TABLE OF AUTHORITIES —- Continued
Page
Sandstrom v. Montana, 442 U.S. 510, 99 S. Ct. 2450,
\ oo ae OS. +p | Per eeeerere re rer. errr 14
Scholes v. Lehmann, 56 F.3d 750 (7th Cir. 1995)....... 13
Smith v. Duckworth, 910 F.2d 1492 (7th Cir. 1990)..... 8
United States ex rel. Martinez v. Thomas, 526 F.2d
TOO (28 Che, TOTS) enc cccecsant vung cin CAs svienes ses 11
Weidner v. Thieret, 866 F.2d 958 (7th Cir. 1989)........ 7
In re Winship, 397 U.S. 358, 90 S. Ct. 1068, 25 L. Ed.
Rh By, SP PPPeeere rer err ros Porc errs rea 14
STATUTES
28 USC. QTR) onc ccc crea cs carveskeconnernenvass 2
Ete Cay. eee MCN Orr pre oe) 2, 3, 7, 10
PETITION FOR WRIT OF CERTIORARI
Ladell Henderson respectfully prays that a writ of
certiorari issue to review the judgment and opinion of the
United States Court of Appeals for the Seventh Circuit
entered in this proceeding on October 3, 1996 and Decem-
ber 5, 1996, for the compelling reason that the decisions
represent a gross miscarriage of justice that erode Hen-
derson’s constitutional rights as guaranteed by the Fifth
and Fourteenth Amendments.
OPINIONS BELOW
ine opinion of the United States Court of Appeals for
the Seventh Circuit that gives rise to this petition is
published at 97 F.3d 942. It is reprinted in the Appendix
hereto at page A-1. By order filed December 5, 1996, the
Seventh Circuit denied Henderson’s petition for rehear-
ing. A-20.
JURISDICTION
Henderson was convicted of murder, attempted mur-
der, home invasion and conspiracy following a jury trial
in Illinois state court, and was sentenced by the trial court
to terms of natural life for murder and thirty years for
attempted murder. The Illinois appellate court affirmed
the convictions and sentences for murder and attempted
murder. People v. Henderson, 175 Ill. App. 3d 483, 529
N.E.2d 1051 (1st Dist. 1988), app. den. 125 Ill.2d 570 (1989).
A-33. The Illinois Supreme Court denied Henderson’s
petition for appeal. People v. Henderson, 125 I11.2d 570, 537
N.E.2d 814 (1989).
On November 13, 1991, Henderson filed a petition for
habeas corpus relief in the federal district court of the
Northern District of Illinois. Jurisdiction in the federal
district court was complete and correct pursuant to 28
U.S.C. § 2254 and the Fifth, Sixth, and Fourteenth
Amendments to the United States Constitution. On Sep-
tember 13, 1994, the district court entered an order deny-
ing Henderson’s petition and dismissed Henderson’s case
with prejudice. A-28.
Henderson filed a timely appeal to the United States
Court of Appeals for the Seventh Circuit, which affirmed
the district court’s decision in an opinion filed October 3,
1996. A-1. On December 5, 1996 the Seventh Circuit
denied Henderson’s motion for rehearing. Pursuant to
Supreme Court Rule 13(3), this petition has been filed
within 90 days of the denial of rehearing. A-20.
The jurisdiction of the Court is invoked pursuant to
28 U.S.C. § 1254(1).
=—®
CONSTITUTIONAL PROVISIONS, STATUTES
AND RULES INVOLVED IN THIS CASE
The Fifth Amendment to the United States Constitu-
tion provides:
No person shall be held to answer for a capital,
or otherwise infamous crime, unless on a pre-
sentment or indictment of a Grand Jury, except
in cases arising in the land or naval forces, or in
the Militia, when in actual service in time of War
or public danger; nor shall any person be subject
for the same offence to be twice put in jeopardy
of life or limb; nor shall be compelled in any
criminal case to be a witness against himself,
nor be deprived of life, liberty, or property,
without due process of law; nor shall private
property be taken for public use, without just
compensation.
The Fourteenth Amendment to the United States
Constitution, Section One provides:
All persons born or naturalized in the United
States, and subject to the jurisdiction thereof, are
citizens of the United States and of the State
wherein they reside. No State shall make or
enforce any law which shall abridge the privi-
leges or immunities of citizens of the United
States; nor shall any State deprive any person of
life, liberty, or property, without due process of
law; nor deny to any person within its jurisdic-
tion the equal protection of the laws.
The text of 28 U.S.C. § 2254 is appended hereto at
A-44-50, both as it existed at the time of the district
court’s ruling denying Henderson’s habeas corpus peti-
tion and as amended by the Antiterrorism and Effective
Death Penalty Act of 1996, Pub. L. 104-132, 110 stat. 1214.
+
STATEMENT OF THE CASE
Henderson appeals from the denial by the District
Court of his petition for a writ of habeas corpus. In the
Silinois state court, Henderson was found guilty of mur-
der, attempted murder, home invasion and conspiracy,
and was sentenced to natural life for murder and thirty
years for attempted murder. On appeal, Henderson
argued, among other things, that the trial court: (1)
denied Henderson’s constitutional rights under the Fifth
and Fourteenth Amendments by denying Henderson’s
motion to suppress a custodial statement that Henderson
made to an Assistant State’s Attorney; and (2) deprived
Henderson of his due process rights and a fair trial as a
result of an erroneous jury instruction on the charge of
attempted murder that allowed Henderson to be con-
victed without requiring a finding of a specific intent to
kill.
The Illinois appellate court affirmed the convictions
and sentences for murder and attempted murder. Hender-
son, 529 N.E.2d 1051. The court found that Henderson’s
sub-par mentality did not negate his waiver of Miranda or
make his statement involuntary. Henderson, 529 N.E.2d at
1054. The court also found that the jury instruction on
attempted murder was not erroneous. Henderson, 529
N.E.2d at 1053-54.
Pursuant to 28 U.S.C. § 2254, on November 13, 1991,
Henderson filed a timely petition for a writ of habeas
corpus in the United States District Court for the North-
ern District of Illinois, which was denied. The District
Court judge found that the state court’s finding of the
validity of Henderson’s Miranda waiver presumptively
was correct, and that Henderson’s statement was volun-
tary, but did not address the issue of the erroneous
attempted murder instruction.
Henderson timely appealed to the United States Court
of Appeals for the Seventh Circuit, which affirmed the
district court’s decision. The Seventh Circuit found that
i ee
Dek SE a ete ee
— at ANE of BR SP DAD RM
Henderson’s custodial statement was both voluntary and
made with a knowing and voluntary waiver of his Miranda
rights. The court relied on the state court’s apparent fac-
tual finding that Henderson knew he was speaking with
the State when he made the custodial statement. The court
declined to address Henderson’s erroneous instruction
argument because, although the parties raised and briefed
it on appeal, it was not specified in Henderson’s second
amended habeas corpus petition.
S
REASONS FOR GRANTING THE PETITION
I
HENDERSON’S CUSTODIAL STATEMENT
WAS ERRONEOUSLY ADMITTED IN
VIOLATION OF HIS FIFTH, SIXTH
AND FOURTEENTH AMENDMENT RIGHTS
In his amended petition for a writ of habeas corpus
in the United States District Court for the Northern Dis-
trict of Illinois, Henderson argued that the trial court
erred in denying Henderson’s motion to suppress his
custodial statement when the circumstances failed to
establish that the statement was voluntary and given
after a voluntary, knowing and intelligent waiver of his
Miranda rights. Although Henderson denied in his state-
ment personally shooting the victims, the admission of
the statement at trial was crucial because it placed Hen-
derson at the scene of the crimes. In support of this
petition, Henderson cited evidence from the state court
trial that Henderson has an IQ of 64 and limited reading
and comprehension abilities, and that at the time he gave
the statement he was led to believe, and indeed believed,
that the Assistant State’s Attorney to whom he made his
statement was the lawyer he had been told would be
provided for him. The State introduced evidence at the
trial confirming that Henderson was confused concerning
the identity of the Assistant State’s Attorney at the time
Henderson gave his statement.
The Seventh Circuit properly addressed Henderson’s
claim using a two-part inquiry: (1) whether Henderson’s
statement was voluntary as a matter of law; and (2)
whether the record fairly supported the determination
that Henderson knowingly and voluntarily waived his
Miranda rights. However, the court erroneously relied
exclusively on the state court’s factual determination that
Henderson waived his Miranda rights, without indepen-
dently analyzing whether Henderson, in fact, could or
did voluntarily make the custodial statement to the Assis-
tant State’s Attorney.
A finding of a valid Miranda waiver does not compel
a finding that a confession was voluntary. Baskin v. Clark,
956 F.2d 142, 145 (7th Cir. 1992). Henderson’s statement
was involuntary, and therefore admitted in violation of
Henderson's rights under the Due Process clause of the
Fourteenth Amendment, because the police led him to
believe, and Henderson in fact did believe, that he was
speaking to his own attorney rather than to the State. In
addition, Henderson’s statement was given without a
voluntary, intelligent and knowing waiver of Hender-
son’s Miranda rights, in violation of Henderson’s Fifth,
Sixth, and Fourteenth Amendment rights, because Hen-
derson in fact did not know or understand that he was
waiving any rights by speaking with a person he believed
to be his own attorney.
A. Henderson’s Statement Was Not Given Volun-
tarily
Whether a statement is voluntary is a question of iaw
that is reviewed de novo by the federal appeals court.
Baskin v. Clark, 956 F.2d 142, 145 (7th Cir. 1992); Weidner v.
Thieret, 866 F.2d 958, 961 (7th Cir. 1989). Although the
reviewing court defers to the state court’s findings of
historical fact, Weidner, 866 F.2d at 961; 28 U.S.C.
§ 2254(d), whether the subsidiary facts amount to a show-
ing by the State that the statement was made voluntarily
is subject to plenary review. Id.
A statement is not voluntary within the due process
clause of the Fourteenth Amendment when there is some
element of police overreaching that is causally related to
the confession. Colorado v. Connelly, 479 U.S. 157, 164, 107
S. Ct. 515, 520, 93 L. Ed. 2d 473 (1986). An interrogation
becomes constitutionally objectionable, and thus coercion
occurs, when the person questioned is prevented from
making a rational choice. Weidner, 866 F.2d at 963. An
accused’s age, intelligence and education are relevant
considerations in determining whether the accused was
prevented from making a rational choice. Id. at 964.
Misrepresentations can result in coercive police activ-
ity. Id. See also, Leyra v. Denno, 347 U.S. 556, 74 S. Ct. 716,
98 L. Ed. 948 (1954) (A psychiatrist sent by the police was
introduced as a physician present to help the accused,
rendering the resulting confession involuntary.) Other
factors considered include the accused’s age, his educa-
tion level, his intelligence level, whether the accused was
advised of his constitutional rights, the length of his
detention, the nature of the questioning, and the use of
force or deprivation. Weidner, 866 F.2d at 964.
Police overreaching includes not only physical coer-
cion, but “more subtle form of psychological persuasion.”
Colorado v. Connelly, 479 U.S. at 164. The mental condition
of the accused is a significant factor in determining
whether a statement was made voluntarily. Id. “[I]t takes
less in terms of threats or other means of inducing fear to
interfere with the deliberate processes of one whose
capacity for rational choice is limited.” Smith v. Duck-
worth, 910 F.2d 1492, 1496 (7th Cir. 1990).
In the present case, testimony of the State’s witnesses
established that when Henderson was arrested, Hender-
son indicated that he understood the Miranda rights as
explained to him and that he did not wish to give a
statement. Indeed, the record demonstrates that until the
interview with the Assistant State’s Attorney, Henderson
denied any involvement with the alleged crimes.
During the four hours that Henderson was held at
the police station prior to his interview with the State,
Henderson testified that he was told by police that an
attorney would be coming to help him. During these
hours, police read Henderson his Miranda rights, includ-
ing that if he could not afford an attorney, the state would
provide one for him. While Henderson, a public defender
client, awaited this state appointed counsel, the Assistant
State’s Attorney, Kim Kardas, arrived. Henderson testi-
fied that shortly before Kardas arrived, a police officer
told Henderson that his attorney was there to help him.
The State’s version of the events surrounding Hen-
derson’s statement, which was accepted by the lower
sethehetetinhe te eo A a eee
Me eh BO bo
courts, does not address whether Henderson understood
that he was speaking to the State when he made the
statement, even if he was capable of understanding who
Assistant State’s Attorneys were and what their role was.
Given Henderson’s intelligence, the controlling question
should have been whether Henderson did understand,
not just whether he was capable of understanding, that
he was speaking to the State.
Furthermore, it is undisputed that Henderson gave
his statement and Kardas transcribed it. There is no evi-
dence that Henderson was offered the opportunity to
write his own statement or that Kardas inquired whether
he was able to do so. When attempting to read the state-
ment as written by Kardas, Henderson for the first time
realized that he had been speaking with the Assistant
State’s Attorney. It also is undisputed that Henderson
appeared confused when he tried to read the statement.
Henderson stated that he thought the Assistant State’s
Attorney was his attorney and also that the Assistant
State’s Attorney had said that he was Henderson’s attor-
ney.
Moreover, the trial court never made a finding that
Henderson was not told by Kardas that Kardas was there
as his attorney or that Henderson in fact did not believe
that Kardas was his attorney. This finding is required to
determine whether Henderson voluntarily made his
statement to the State. Because the evidence demonstrates
that Henderson was led to believe that Kardas was his
attorney, and indeed believed that he was, the statement
that Henderson made was involuntary and its introduc-
tion at trial deprived Henderson of his constitutional
rights under the Fifth and Fourteenth Amendments.
10
B. Defendant Gave His Statement Without An
Intelligent, Knowing, and Voluntary Waiver of
his Miranda Rights
Federal courts will defer to the state court determina-
tion of the validity of Miranda waivers, unless that deter-
mination is not fairly supported by the record. 28 U.S.C.
§ 2254; Baskin v. Clark, 956 F.2d 142, 145 (7th Cir. 1992).
The government must prove by a preponderance of the
evidence that a defendant knowingly and intelligently
waived his Miranda rights. Lego v. Twomey, 404 U.S. 477,
92 S. Ct. 619, 30 L. Ed. 2d 618 (1972).
A waiver is the intentional relinquishment of a
known right. See, Edwards v. Arizona, 451 U.S. 477, 482,
101 S. Ct. 1880, 68 L.E.2d 378 (1980) Relinquishment of a
right involves two dimensions. Moran v. Burbine, 475 US.
412, 106 S. Ct. 1135, 89 L. Ed. 2d 410 (1986). First, the
waiver must have been voluntary and free of coercion. Id.
In addition, the waiver must be made “with a full aware-
ness of both the nature of the right being abandoned and
the consequences of the decision to abandon it.” Id.
Only if the ‘totality of the circumstances sur-
rounding the interrogation’ reveals both an
uncoerced choice and the requisite level of com-
prehension may a court properly conclude that
the Miranda rights have been waived.
Id. The state of mind of the police is irrelevant to the
question of an accused’s voluntary, knowing and intel-
ligent waiver of Miranda rights. Id. at 423. However, the
State of mind of the accused is crucial.
ORT LNG PR POLI TERN SRL Aoi a dh 6 ee ee eee
11
There is little doubt that mental illness can inter-
fere with a defendant's ability to make a know-
ing and intelligent waiver of his Miranda rights.
Competency to make such a waiver is, of course,
to be determined according to the totality of
circumstances.
Miller v. Dugger, 838 F.2d 1530, 1539 (11th Cir. 1988), cert.
den. 486 U.S. 1061 (1988).
Federal courts have held that the subpar mentality of
the accused impedes the accused’s ability to make a vol-
untary, knowing and intelligent waiver. In Cooper v.
Griffin, 455 F.2d 1142 (5th Cir. 1972), the court determined
that youths who had no experience with the criminal
justice system and IQs ranging between 61 and 67 were
incapable of making valid waivers. Other factors consid-
ered in determining whether an accused is capable
include age, mental deficiency, and lack of familiarity
with the criminal justice system. Id. at 1145; see also,
United States ex rel. Martinez v. Thomas, 526 F.2d 750, 756
(2d Cir. 1975) (defendant had I.Q. of 63).
In the present case, evidence established that Hen-
derson was 18 at the time of his arrest and that he had an
I.Q. of 64, in the mentally deficient range. Henderson was
induced to make a statement only after being led to
believe that the person questioning him was his own
attorney.
Moreover, although the form Kardas used when he
drafted Henderson’s statement provided standard Mir-
anda waiver provisions for Henderson’s signature, Kardas
never requested that Henderson sign the written waiver
provisions. Kardas, who had been in the Felony Review
12
rotation only two weeks when he interviewed Hender-
son, instead testified that he did not customarily request
written waivers when he was only speaking with a sus-
pect. If Kardas had requested the written waiver, Hender-
son would have had the Opportunity to see that the form
was from the Cook County State’s Attorney’s office.
The trial court merely found that State had borne its
burden of showing that Henderson’s statement was given
after Henderson “understandingly and knowingly
waived his Constitutional rights to remain silent.” How-
ever, the court did not address that Henderson was in
fact mentally deficient. In addition, it is uncontested that
upon reviewing the statement as written by Kardas, Hen-
derson stated that Kardas had told him that he was
Henderson’s attorney and that Henderson thought
Kardas was his attorney. It also is undisputed that as soon
as Henderson discovered that Kardas did not work for
him, he refused to sign the statement.
The trial court’s finding is not supported by a fair
reading of the record because it is impossible for Hender-
son to knowingly and intelligently waive his rights to
counsel and to remain silent when he never believed that
he was making a staiement to anyone other than his
defense counsel. Henderson could not have understood
that any statement he made could be used against him at
trial.
A fair reading of the record below illustrates that no
court made the requisite independent finding that at the
time Henderson made his statement to Kardas, Hender-
son understood that he was making a statement that
would be used against him. Moreover, Henderson could
ae fe
PO OT EA NR IRE ASS CRI Cab ihe esl dab i
, ataaeiaalind ahaa atedialan tad ieaatd gL te ee LO ee
13
not have waived his right to counsel because he thought
he was speaking with his counsel. Henderson’s statement
was made without a voluntary, knowing, and intelligent
waiver of his Miranda rights and was erroneously admit-
ted at trial.
II
HENDERSON WAS DENIED DUE PROCESS
RIGHTS BY THE ERRONEOUS
ATTEMPTED MURDER INSTRUCTION
The Seventh Circuit did not address Henderson’s
argument that the state court’s erroneous jury instruction
deprived Henderson of his due process rights because
that argument was not raised in Henderson’s second
amended habeas corpus petition. Although issues not
raised in the district court generally are waived on
appeal, an appellate court may address issues of law that
are briefed fully on appeal, notwithstanding the appel-
lant’s failure to raise them below. Scholes v. Lehman, 56
F.3d 750, 760 (7th Cir. 1995). Additionally, an issue is not
waived in circumstances “where injustice might other-
wise result.” Grossart v. Dinaso, 758 F.2d 1221, 1226 (7th
Cir. 1985) (quoting Hormel v. Helvering, 312 U.S. 552, 557
(1941)).
These standards require consideration of the present
issue. The erroneous instruction claim is a purely legal
issue; no issues of fact need to be resolved or considered.
Additionally, both parties fully briefed this issue to the
Seventh Circuit. Henderson raised the erroneous instruc-
tion issue in the state appellate court and identified the
constitutional nature of this issue in his first amended pro
14
se petition in the district court. However, Henderson’s
appointed counsel prepared and filed a second amended
petition which failed to include this issue. Henderson
was not aware of this omission.
A federal court may Overturn a conviction resulting
from a state trial in which an erroneous jury instruction
was used if it is established that the instruction is erro-
neous and violated some right which is guaranteed to the
defendant by the Fourteenth Amendment. See, Cupp v.
Naughten, 414 U.S. 141, 146, 94S. Ct. 396, 38 L. Ed. 2d 368
(1973). When reviewing the instruction, the court does
not look at the instruction in isolation, but within the
context of the overall charge. Cupp, 414 U.S at 147. The
flawed instruction must have “so infected the entire trial
that the result violates due Process.” Id.
Due process requires a state to prove every element
of a crime beyond a reasonable doubt. In re Winship, 397
‘S. 358, 364, 90 S. Ct. 1068, 25 L. Ed. 2d 368 (1970). A
defective jury instruction can violate this requirement by
allowing the state to presume the element of intent. See,
Sandstrom v. Montana, 442 USS. 510, 523, 99 S. Ct. 2450,
2458, 61 L. Ed. 2d 39 (1979).
In the present case, the trial court’s instruction on
attempted murder was erroneous because it allowed the
jury to find the defendant guilty of attempted murder
without finding that he acted with the specific intent to
kill. The jury was instructed regarding the charge of
murder as follows:
A person commits the offense of murder when
he kills an individual if, in performing the acts
which cause death, he intends to kill or do great
Na ta seb
15
bodily harm to that individual; or he knows that
such acts would cause death to that individual;
or he knows that such acts create a strong prob-
ability of death or great bodily harm to that
individual; or he is committing the offense of
home invasion.
The jury was instructed on attempted murder as follows:
A person commits the offense of attempt when
he, with intent to commit the offense of murder,
does any act which constitutes a substantial step
toward the commission of the offense of murder.
The offense attempted need not have been com-
mitted.
The jury further was instructed, in part:
To sustain the charge of attempt, the State must
prove the following propositions: First, that the
defendant, or one for whose conduct he is
legally responsible, performed an act which con-
stituted a substantial step toward the commis-
sion of the offense of murder; and, second, that
the offender, or one for whose conduct he is
legally responsible, did so with intent to commit
the offense of murder. If you find from your
consideration of all of the evidence that each
one of these propositions has been proved
beyond a reasonable doubt, you should find the
defendant guilty .. .
These jury instructions are clearly erroneous pur-
suant to Illinois law. The Illinois State Supreme Court has
held that an instruction must make clear that criminal
intent to kill is necessary in order to convict for
attempted murder. People v. Harris, 72 Ill. 2d 16, 27, 377
16
N.E.2d 28 (1978); People v. Trinkle, 68 Ill. 2d 198, 201, 369
N.E.2d 888 (1977).
In Harris and Trinkle, the attempted murder instruc-
tions stated that a person commits attempted murder
when acting with intent to commit murder. Harris, 377
N.E.2d at 32-33; Trinkle, 369 N.E.2d at 889. However, the
decisions held that reference only to the murder instruc-
tion allowed the jury to make a finding of guilt based on
a mens rea less than specific intent to kill. A finding of
guilt on the murder instruction could result if the defen-
dant had acted merely with the knowledge that his con-
duct created a strong probability of bodily harm. See,
Harris, 377 N.E.2d at 33; Trinkle, 369 N.E.2d at 890. “[T]he
jury could have found the defendant guilty of attempted
murder sans specific intent to kill.” Trinkle, 369 N.E.2d at
890.
Likewise, the jury instructions in Henderson’s case
allowed the jury to convict Henderson without the requi-
_ Site intent to kill because the attempted murder instruc-
tion included only the intent to commit murder. The
murder instruction allowed for various mental states,
rather than the specific, requisite intent to kill. Therefore,
the jury could find the defendant guilty of attempted
murder without a finding of specific intent to kill.
The evidence before the jury directly conflicted. The
State attempted to prove, largely on the basis of the
testimony of Mona Chavez, that the defendant committed
the crimes directly and personally. Chavez testified that
Henderson personally shot her and her uncle, Dennis
Leonard. The defense theory was that Henderson did not
17
pull the trigger but merely was present at the scene prior
to the shooting.
Indeed, the record shows that the jury was uncertain
as to the defendant’s mental state. During deliberations,
the jury tendered the following question to the judge:
Is it possible to reach a verdict of guilty on the
charge of murder if the jury is not convinced
that Ladell [Henderson] shot Dennis Leonard, is
not convinced that Ladell knew beforehand that
Dennis would be shot but is convinced that
Ladell aided and abetted other persons in the
crime of home invasion on the night of the
killing?
In response to their question, the judge merely
responded, “Read your instructions.” The jurors’ ques-
tion demonstrates their confusion on the intent issue.
This jurors’ question is not surprising given that Hender-
son’s statement, even if admissible, does not support the
finding that Henderson personally performed the shoot-
ing of Leonard and Chavez. If the jury believed Hender-
son and rejected Chavez’ testimony, it could still have
found Henderson guilty of attempted murder pursuant to
the erroneous instruction given by the court.
As illustrated by the jurors’ explicit question on this
issue, the erroneous instruction infected the whole trial
by permitting the state to avoid its burden of proving the
element of specific intent to kill. The jury’s question and
Henderson’s statement call into question whether the
jury would have found Henderson guilty of even the
attempted murder charge. That the jury questioned or
even rejected Chavez’ testimony that Henderson was the
shooter, demonstrates that this erroneous instruction
18
infected the entire deliberation process. The erroneous
instruction therefore violated Henderson’s Fourteenth
Amendment right to due process.
The evidence in the record, the erroneous instruction
regarding the requisite state of mind for attempted mur-
der, and the jury’s question illustrating the jury’s uncer-
tainty about the defendant’s mental state, all show that
the erroneous instruction on the charge of attempted
murder was not harmless beyond a reasonable doubt.
a
CONCLUSION
Henderson was denied his rights under the Fifth and
Fourteenth Amendments when the state trial court
denied his motion to suppress the custodial statement
Henderson made to the Assistant State’s Attorney. Hen-
derson is of a subpar mentality and was young and in
custody when the statement was made. Henderson was
led to believe, and in fact did believe, that he was speak-
ing with his state appointed counsel and not the State.
Henderson’s statement therefore was involuntary. More-
over, the totality of circumstances shows that Henderson
did not voluntarily, knowingly and intelligently waive his
right to counsel or his right to remain silent. Henderson
was also denied a fair trial by the erroneous instruction to
the jury that allowed Henderson to be convicted on the
charge of attempted murder without the required show-
ing by the State that Henderson possessed the specific
intent to kill.
WHEREFORE, Petitioner Ladell Henderson respect-
fully prays that a writ of certiorari issue to review the
19
judgment and opinion of the United States Court of
Appeals for the Seventh Circuit.
Respectfully submitted,
LADELL HENDERSON
By His Attorney
KATHRYN T. Drrmars
McDermott, Witt & EMERY
227 West Monroe Street
Chicago, Illinois 60606-5096
(312) 372-2000
APPENDIX INDEX
10-3-96 Judgment and Decision of the United
States Court of Appeals for the Seventh
I oh deth nes con a eked edu beel ORG, Pow: A-1
12-5-96 Order of the United States Court of
Appeals for the Seventh Circuit denying Hen-
derson’s motion for rehearing .................. A-20
10-23-96 Order of the United States Court of
Appeals for the Seventh Circuit granting Hen-
derson’s motion for an extension of I te nt A-21
4-4-95 Order of United States District Court Judge
Brian B. Duff Denying Petition for Certificate of
hia scripisthe e,,..., , eEe CE e e a A-22
1-10-95 Order of United States District Court
Judge Brian B. Duff Denying Petition for Certif-
icate of Probable Cause......................... A-23
9-13-94 Judgment, Order and Memorandum of
United States District Court Judge Brian B. Duff
denying Petition for Writ of Habeas Corpus....... A-28
People v. Henderson, 175 Iul. App. 3d 483, 529
PUNE WUE MOOD oo ividis oh dos acesvdvcvae since A-33
er I ae ees ue ela Cees oo A-44
Antiterrorism and Effective Death Penalty Act of
1996, Pub. L. 104-132, 110 Stat. 1214............ A-47
A-1
UNITED STATES COURT OF APPEALS
For the Seventh Circuit
Chicago, Illinois 60604
JUDGMENT - WITH ORAL ARGUMENT
Date: October 3, 1996
BEFORE: Honorable ILANA DIAMOND ROVNER,
Circuit Judge
Honorable DIANE P. WOOD, Circuit Judge
Honorable TERENCE T. EVANS, Circuit
Judge
No. 95-1834
LADELL HENDERSON,
Petitioner-Appellant
v.
GEORGE E. DeTELLA,
Respondent-Appellee
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division
No. 91 C 7288, Brian Barnett Duff, Judge
The judgment of the District Court is AFFIRMED, in
accordance with the decision of this court entered on this
date.
(1061-110393)
A-2
In the
United States Court of Appeals
For the Seventh Circuit
No. 95-1834
LADELL HENDERSON,
Petitioner-Appellant,
Georce E. DeTEta,*
Respondent-Appellee.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 91 C 7288 - Brian Barnett Duff, Judge.
ARGUED JANUARY 4, 1996 — Decipep Ocrtoser 3, 1996
Before Rovner, Diane P. Woop, and Evans, Circuit
Judges.
"In his habeas petition, the petitioner has named as
respondents George C. Welborn, currently the warden of the
maximum security facility at Tamms, Illinois, and James E.
Ryan, the Illinois Attorney General. Because the petitioner is
presently in custody at the Stateville Correctional Center
pursuant to the conviction he challenges in his habeas petition,
the proper respondent is George E. DeTella, the warden of that
facility. We have made the substitution pursuant to Fed. R. App.
P. 43 at the state’s suggestion.
iat
A-3
Rovner, Circuit Judge. An Illinois jury convicted
Ladell Henderson of murder and attempted murder, for
which he was sentenced to respective prison terms of life
and thirty years. His petition for a writ of habeas corpus
contends that his post-arrest confession of involvement in
these crimes was made without a voluntary, knowing,
and intelligent waiver of his rights under Miranda v.
Arizona, 384 U.S. 436, 86 S.Ct. 1602 (1966), and that the
trial court erred in barring him from presenting evidence
that the complaining witness used narcotics. The district
court denied Henderson’s petition. We affirm.1
1 After we heard oral arguments in this appeal, the
President signed into law what is known as the Anti-terrorism
and Effective Death Penalty Act of 1996, Pub.L. 104-132, 110
Stat. 1214. Among other changes, the statute adds a new
provision to 28 U.S.C. § 2254, under which Henderson seeks
relief. Section 2254(d) now provides:
An application for a writ of habeas corpus on behalf of a
person in custody pursuant to the judgment of a State
court shall not be granted with respect to any claim that
was adjudicated on the merits in State court proceedings
unless the adjudication of the claim -
(1) resulted in a decision that was contrary to,
or involved an unreasonable application of,
clearly established Federal law, as determined by
the Supreme Court of the United States; or
(2) resulted in a decision that was based on an
unreasonable determination of the facts in light
of the evidence presented in the State court
proceeding.
This court held recently that the provisions of section 2254(d)
apply to habeas petitions filed prior to enactment of the new
statute. Lindh v. Murphy, No. 95-3608 (7th Cir. Sept. 12, 1996) (en
banc). We need not decide what effect, if any, these provisions
have on our review of Henderson’s claims. His petition fails
A-4
a.
In the early morning hours of February 28, 1984,
Mona Chavez was at home in Chicago watching televi-
sion with her uncle, Dennis Leonard. After nodding off to
sleep, Chavez was awakened by a pounding on the front
door. Leonard answered and was confronted by Hender-
son and two other men. Leonard was thrown to the floor.
Henderson told both Chavez and Leonard that they were
going to die. He pulled out a gun and fired two shots into
the back of Leonard’s head, killing him. Chavez, who was
sixteen years old, knew Henderson (age eighteen), from
the neighborhood. He had asked her on several occasions
to be “his lady.” (She testified that she had declined his
offer, although defense witnesses said that the two were
involved romantically.) Days before the shooting he had
broken into her apartment and stolen several items of
clothing. Now, as Chavez pleaded with Henderson to
spare her life, he told her that if he could not have her, no
one would. He grabbed her hair, put a gun to her ear, and
shot her three times.
Miraculously, Chavez survived. She regained con-
sciousness hours after the shooting, crawled from the
second floor apartment, stumbled down the stairs, and
sought help from a downstairs neighbor, who telephoned
the police. Chavez told the officer who arrived on the
scene that Henderson had shot her.
Henderson was located at a tavern and taken into
custody. (The record does not disclose the fate of his two
under either the new or the previous versions of the habeas
statute.
A-5
accomplices.) Officer Clifton Underwood testified that he
apprised Henderson of his Miranda rights both at the
scene of his arrest and later at the police station; he also
testified that Henderson acknowledged these rights as he
was informed of them. Henderson did not appear con-
fused to the officers who observed him. Although cooper-
ative, he declined to make a statement initially, other than
to profess ignorance as to the reason for his arrest and to
deny having killed anyone. However, according to
Underwood, Henderson later had a change of heart and
said that he wanted to tell Underwood “what really hap-
pened.” Underwood testified that he again told Hender-
son what his rights were, and that Henderson
acknowledged them. The two then spoke for twenty to
thirty minutes. Subsequently, Assistant State’s Attorney
Kim Kardas took a statement from Henderson. Kardas
knew Henderson from a previous prosecution in juvenile
court and later testified that he reminded Henderson of
this as he introduced himself. Detective Peter Valesares
was present while Kardas interviewed Henderson and
confirmed that Kardas and Henderson appeared to know
one another. Valesares also testified that he told Hender-
son before this interview that he was being charged with
shooting Chavez and killing Leonard and that a state’s
attorney would be coming to speak with him.
After speaking with Henderson, Kardas prepared a
written statement for him to sign. In substance, the state-
ment indicated that Henderson had taken two men
(“Billy Ray” and “Speedy”) to Chavez’s home for the
purpose of executing a contract on her life (she purpor-
tedly had “set up” an El Rukn gang member), but did not
participate in the shootings. When Henderson began to
A-6
review the statement, he noted a reference to Kardas
being an assistant state’s attorney. He purported to be
confused by that and said that he had understood Kardas
to be his own attorney, not the state’s. He then refused to
sign the statement. Henderson later testified at a suppres-
sion hearing that he had spoken to Kardas thinking that
Kardas was a defense attorney, not a prosecutor.
The state subsequently charged Henderson with
murder, attempted murder, conspiracy to commit murder,
and home invasion. Chavez testified at trial and identi-
fie. “Ienderson as the assailant. On cross-examination,
the defense inquired into her relationship with one Quin-
tin Jones and asked Chavez whether she had used
“speed” in the presence of Henderson and Jones. Chavez
acknowledged knowing Jones but denied that she had
been involved with him romantically and denied having
ever used speed. When the defense later attempted to
have Jones testify that he had seen Chavez use drugs on
numerous occasions, the trial court sustained the state’s
objection, noting that “the only reason [you’re] doing it is
to dirty up the witness.” In addition to Chavez’s testi-
mony, the state was permitted to offer into evidence the
written statement that Kardas prepared based on what
Henderson had told him. That statement, of course,
placed Henderson at the scene of the shooting. Hender-
son had moved unsuccessfully in advance of trial to
suppress the statement. Having failed in that effort, Hen-
derson’s theory of defense was that although he had
participated in the home invasion, he had done nothing
more. The jury rejected that theory and convicted Hen-
derson on all charges. The trial judge ordered Henderson
to serve a term of natural life in prison for Leonard’s
A-7
murder, thirty years for the attempted murder of Chavez,
and seven years for the conspiracy to commit murder. No
sentence was imposed for the home invasion.
On appeal, the Illinois appellate court vacated Hen-
derson’s conviction on the conspiracy charge, but
affirmed his conviction and sentence on the other
charges. People v. Henderson, 529 N.E.2d 1051 (Ill. App.
1988), leave to appeal denied, 537 N.E.2d 814 (Ill. 1989).
Among other issues, the court disposed of two that Hen-
derson has pursued in his habeas petition: the admission
of his post-arrest statement to the authorities and the
refusal to permit him to present extrinsic evidence of
Chavez’s past drug use. Henderson had moved to sup-
press his statement arguing that for two reasons his deci-
sion to waive his Miranda rights was not voluntary,
knowing, and intelligent. He contended that he had been
misled into thinking that Kardas was his own attorney
and that, in any event, his limited mental capacity and
below-average I.Q. (sixty-four) rendered him unable to
make a reasoned decision in this regard. The appellate
court did not specifically address the purported confu-
sion as to Kardas’ affiliation, although in its recitation of
the trial testimony the court noted that Kardas claimed to
have expressly identified himself as the state’s attorney,
not Henderson’s. The court did address the question of
Henderson’s mental capacity to waive his Miranda rights:
In reviewing the totality of circumstances sur-
rounding defendant’s statement, we find that a
preponderance of the evidence demonstrates
that the defendant understood and knowingly
waived his constitutional rights. Where as here
the record supports a finding that defendant’s
A-8
subpar mentality did not interfere with his abil-
ity to comprehend the meaning of a voluntarily
made statement or a right to counsel, his state-
ment will not be suppressed.
529 N.E.2d at 1054. The court also found no error in the
trial court’s decision to exclude Jones from testifying as to
Chavez’s purported drug use.
Defendant made no reference or qualification as
to when the victim allegedly used drugs or the
extent of impairment from the use of any drugs.
Thus, we are inclined to agree with the trial
court that such evidence would not shed light
on the victim’s ability to adequately perceive the
events as they occurred on the night of the
offense. To the contrary, this evidence would
simply “dirty up” the witness in the eyes of the
jury. Accordingly, we find that the trial court
properly excluded any evidence of the victim’s
alleged drug addiction.
Id.
Henderson renewed these arguments in his habeas
petition. His first amended petition (which, like the origi-
nal, was prepared pro se) also asserted a third claim that
the jury had been erroneously instructed on attempted
murder. After the district court appointed counsel for
Henderson, however, that petition was withdrawn and a
second amended petition was filed which omitted this
claim. The district court rejected the other two claims on
their merits. It noted that “[s]tate-court determinations of
the validity of Miranda waivers are presumed correct
under § 2254(d),” and that in this case the finding of a
knowing waiver was supported by the testimony of
Assistant State’s Attorney Kardas. United States ex rel.
A-9
Henderson v. Welborn, No. 91 C 7288, Mem. Op. at 3
(N.D.Ill. Sept. 13, 1994). The court observed further that
Henderson’s claim that he was not mentally equipped to
waive his rights was “belied by the fact that he attempted
to refute the validity of this Miranda waiver after reading
his statement.” Id. (emphasis in original). Under the total-
ity of the circumstances, then, the court found that Hen-
derson had waived his rights and had voluntarily made
the post-arrest statement admitted at trial. Id. The court
also rejected Henderson’s claim that the exclusion of
testimony concerning Chavez’s purported drug use vio-
lated the Confrontation Clause of the Sixth Amendment.
Id. at 2. The court noted that Henderson had been permit-
ted to cross-examine Chavez on the subject of drug use,
and he was not precluded from impeaching Chavez in
any manner, but only through Jones. Id.
II.
Henderson pursues these same two issues on appeal.
His Miranda waiver cannot be deemed voluntary, know-
ing, and intelligent, he insists, in light of evidence that he
was led to believe that he was talking to his own attorney
rather than the prosecutor when he waived his right to
remain silent, and in light of evidence that his intellectual
capabilities are limited. He also renews his argument that
he was deprived of his Sixth Amendment right to con-
front Chavez when the court precluded extrinsic testi-
mony concerning her purported drug use. Henderson
attempts additionally to raise a third issue: he contends
that he was deprived of due process by an instruction on
the attempted murder charge that (purportedly) permit-
ted the jury to convict him on that charge without finding
A-10
that he acted with the specific intent to kill Chavez. This
issue was, as we have noted, omitted from the second
amended petition prepared by Henderson’s counsel and
presented to the district court for decision; the first
amended pro se petition, which did raise this issue, was
withdrawn. As it was not before the district court, the
jury instruction issue is beyond our review in this appeal,
and we do not address it. Williams v. Turner, 5 F.3d 1114,
1116 (7th Cir. 1993); D.S.A. v. Circuit Court Branch 1, 942
F.2d 1143, 1152 n. 17 (7th Cir. 1991), cert. denied, 502 U.S.
1104, 112 S.Ct. 1196 (1992).
A. Waiver of Miranda Rights
When a Miranda waiver is challenged, two distinct
questions are presented: whether the waiver was volun-
tary, knowing, and intelligent as a matter of fact, and
whether it was involuntary as a matter of law. Baskin v.
Clark, 956 F.2d 142, 145 (7th Cir.), cert. denied sub nom.
Baskin v. Farley, 506 U.S. 835, 113 S.Ct. 109 (1992), and cert.
denied sub nom. Farley v. Baskin, 506 US. 904, 113 S.Ct. 296
(1992). Whether a petitioner actually waived his Miranda
rights, and whether he did so freely, knowingly, and
intelligently, are fact-dependent issues that the state
courts are best situated to resolve. Bryan v. Warden, Indi-
ana State Reformatory, 820 F.2d 217; 219 (7th Cir.), cert.
denied, 484 U.S. 867, 108 S.Ct. 190 (1987); Perri v, Director,
Dep't of Corrections, 817 F.2d 448, 451 (7th Cir.), cert.
denied, 484 U.S. 843, 108 S.Ct. 135 (1987). Frequently, for
example, the state and the petitioner offer conflicting
testimony as to whether the petitioner was apprised of
and willingly relinquished his rights; assessing the Mir-
anda waiver thus demands credibility assessments that
A-11
typically only the trier of fact can make. Bryan, 820 F.2d at
219; see also Weidner v. Thieret, 866 F.2d 958, 961 (7th Cir.
1989), cert. denied, 502 U.S. 1036, 112 S.Ct. 883 (1992). The
state court’s historical findings as to the petitioner’s
knowledge, understanding, and determination to forgo
his Miranda rights are, consequently, entitled to a pre-
sumption of correctness under 28 U.S.C. § 2254(e)(1)
(1996), formerly § 2254(d) (see n.1, supra). E.g., Jones v.
Page, 76 F.3d 831, 852 (7th Cir. 1996), petition for cert. filed
(U.S. June 28, 1996) (No. 96-5064); Bryan, 820 F.2d at
219-20 (collecting cases). Yet:
Whether a defendant made a voluntary, know-
ing and intelligent waiver of his Miranda rights
is distinct from the issue of whether, under the
totality of the circumstances, the challenged
statement was involuntary. Bryan, 820 F.2d at
219. A court may find that a defendant made a
valid waiver and yet still hold that a confession
was involuntary.
Baskin, 956 F.2d at 145. The ultimate question whether a
petitioner’s statement was involuntary, and thus whether
it was properly admitted at trial, is one of law. Bryan, 820
F.2d at 219, 220; see also Baskin, 956 F.2d at 145. The
Supreme Court has explained why:
Although sometimes framed as an issue of “psy-
chological fact,” Culombe v. Connecticut, 367 U.S.
[568], at 603, 81 S.Ct. [1860], at 1879 [(1961)], the
dispositive question of the voluntariness of a
confession has always had a uniquely legal
dimension. It is telling that in confession cases
coming from the States, this Court has consis-
tently looked to the Due Process Clause of the
Fourteenth Amendment to test admissibility.
See, e.g., Mincey v. Arizona, 437 U.S. [385], at 402,
A-12
98 S.Ct. [2408], at 2418 [(1978)]. The locus of the
right is significant because it reflects the Court's
consistently held view that the admissibility of a
confession turns as much on whether the tech-
niques for extracting the statements, as applied
to this suspect, are compatible with a system
that presumes innocence and assures that a con-
viction will not be secured by inquisitorial
means as on whether the defendant's will was in
fact overborne. See, e.g¢., Gallegos v. Colorado, 370
U.S. 49, 51, 82 S.Ct. 1209, 1211, 8 L.Ed.2d 325
(1962) (suggesting that “a compound of two
influences” requires that some confessions be
condemned); Culombe v. Connecticut, supra, 367
U.S., at 605, 81 S.Ct., at 1880 (describing volun-
tariness as an “amphibian”). This hybrid quality
of the voluntariness inquiry, subsuming, as it
does, a “complex of values,” Blackburn v. Ala-
bama, 361 U.S. [199], at 207, 80 S.Ct. [274], at 280
[(1960)], itself militates against treating the
question as one of simple historical fact.
Miller v. Fenton, 474 U.S. 104, 115-16, 106 S.Ct. 445, 452-53
(1985) (footnote omitted) (emphasis in Original). Thus,
whether the petitioner’s statement was the product of
fundamentally fair procedures, untainted by any type of
coercion, is a legal question that we review de novo.
Weidner, 866 F.2d at 961; Bryan, 820 F.2d at 219, 220: see
also United States v. Betts, 16 F.3d 748, 763 n.10 (7th Cir.
1994).
1. Involuntariness
We take up the legal question first. As we have
explained, Henderson argues that his statement was
involuntary as a matter of law because the authorities
A-13
deceived him into thinking that Kardas was his own
counsel. See, e.g., Leyra v. Denno, 347 U.S. 556, 74 S.Ct. 716
(1954) (confession to state-employed psychiatrist deemed
involuntary where defendant misled as to psychiatrist's
mission and allegiance). The admission of that statement
at trial was therefore assertedly in violation of the Due
Process Clause of the Fourteenth Amendment. As a legal
assertion, this claim demands plenary review. But the
assertion depends on a point of fact as to which the
parties disagree: did Kardas identify himself to Hender-
son as a prosecutor? On that subsidiary factual question,
we defer to the state court. Weidner, 866 F.2d at 961; Bryan,
820 F.2d at 221.
Henderson initially contends that neither the state
trial and appellate courts nor the district court have ever
addressed this claim. It is true that none of the courts to
whom Henderson has made this argument previously has
rejected it expressly. Yet, each court did find ultimately
that Henderson’s waiver was made voluntarily, know-
ingly, and intelligently (S.R. 35 (trial court), 529 N.E.2d at
1054 (appellate court), Mem. Op. at 3 (district court)), and
there is no requirement that a court detail its reasons for
rejecting each of the arguments the petitioner has
advanced for a contrary finding. See, e.g., Baskin, 956 F.2d
at 144; Weidner, 866 F.2d at 963; Bryan, 820 F.2d at 221.
Moreover, it seems clear to us is [sic] that each of the
courts did have in mind Henderson’s allegation as to
Kardas’ identity. For example, the Illinois appellate court,
in its factual summary of the case, noted:
Kardas testified that prior to his questions
directed to defendant, he informed defendant
that he was an assistant State’s Attorney. Kardas
A-14
read defendant his rights and defendant indi-
cated that he understood. According to Kardas,
defendant stated that he knew what an assistant
State’s Attorney was and also knew that Kardas
was not his lawyer.
People v. Henderson, 529 N.E.2d at 1052. That court plainly
understood why this testimony was relevant. Although
the court did not go on to find expressly that Henderson
was not misled as to whom Kardas represented, we
believe that finding was implicit in its conclusion that
“the defendant understood and knowingly waived his
constitutional rights” and that his limited mental abilities
“did not interfere with his ability to comprehend the
meaning of a voluntarily made statement or a right to
counsel... .” Id. at 1054.2 Likewise, when the district
court remarked that the state courts’ finding of a volun-
tary waiver “is supported by the statements of the Assis-
tant State’s Attorney,” we understand it to have meant
that Kardas’ testimony lent adequate support to the
notion that Henderson was properly apprised as to whom
Kardas owed his allegiance.
We treat the state courts’ implicit determination that
Henderson knew who Kardas was as presumptively cor-
rect (Bryan, 820 F.2d at 221), and having thoroughly
reviewed the record, we have found nothing that would
? Neither party, certainly, suggests that this is a case in
which the court might have accepted the factual premise of the
petitioner’s argument, yet still rejected the claim that a
constitutional violation occurred. Cf. Weidner, 866 F.2d at 962-64
(possibility that state court might have accepted some of
petitioner’s factual assertions required clarification of court’s
findings).
A-15
permit us to set aside that determination. Kardas and
Detective Valesares asserted that Kardas was introduced
to Henderson as an assistant state’s attorney and that the
two knew one another already. The officers who had
observed Henderson and spoken with him that day indi-
cated that he seemed to comprehend what was happen-
ing. The state’s forensic psychiatrist testified that in his
interview of Henderson, Henderson had manifested an
appreciation of the difference between an assistant state’s
attorney and a defense attorney. See United States v. Frank,
956 F.2d 872, 878 (9th Cir.), cert. denied, 506 U.S. 932, 113
S.Ct. 363 (1992). By the state’s account, not until Hender-
son began to read the written statement Kardas had pre-
pared did he show signs of confusion. Whether that
confusion was genuine, and whether Henderson had
been misled as to whom Kardas represented, turned
entirely on the credibility of the witnesses who testified
before the state trial court. The state court plainly cred-
ited the state’s witnesses, and we have no basis to disturb
that credibility determination. Sprosty v. Buchler, 79 F.3d
635, 645 (7th Cir. 1996), petition for cert. filed (U.S. June 21,
1996) (No. 95-9393); Armstrong v. Young, 34 F.3d 421, 427
(7th Cir. 1994), cert. denied, 115 S.Ct. 1369 (1995).
Wrested of its factual premise - that Henderson was
deceived as to whom Kardas represented — the legal claim
of involuntariness necessarily fails. Looking to the total-
ity of the circumstances, we see no hint of coercion or
otherwise unfair behavior on the part of the state that
would justify a determination that Henderson’s statement
to Kardas was involuntary and that the admission of the
statement at trial was necessarily erroneous. This leaves
Henderson with the claim that he did not, as a matter of
A-16
fact, waive his Miranda rights. That claim we take up
next.
2. Waiver as a matter of fact
Based on the evidence of record, we also find no
reason to disturb the state courts’ determination that
Henderson made a voluntary, knowing, and intelligent
decision to waive his Miranda rights notwithstanding the
apparent limits of his intellect. Again, this was a factual
determination thet we treat as presumptively correct. See
Jones, 76 F.3d at 852; Perri, 817 F.2d at 451-52; Bryan, 820
F.2d at 219. Henderson’s purportedly low I.Q. and limited
reading and comprehension capabilities obviously call for
caution in assessing the uncounseled waiver of his consti-
tutional rights. See Sims v. Georgia, 389 U.S. 404, 407, 88
S.Ct. 523, 525 (1967) (per curiam); Miller v. Dugger, 838
F.2d 1530, 1539 (11th Cir.), cert. denied, 486 US. 1061, 108
S.Ct. 2832 (1988); Moore v. Ballone, 658 F.2d 218, 229-30
(4th Cir. 1981); Cooper v. Griffin, 455 F.2d 1142, 1145-46
(Sth Cir. 1972). Yet, as both the Illinois appellate court and
the district court recognized, such limitations, at least of
the degree presented here, do not preclude a finding that
Henderson could and in fact did make a reasoned and
independent decision to speak with the authorities. See
Toste v. Lopes, 861 F.2d 782, 783 (2d Cir. 1988) (per curiam),
cert. denied sub nom. Toste v. Meachum, 490 U.S. 1112, 109
S.Ct. 3170 (1989); Winfrey v. Wyrick, 836 F.2d 406, 411 (8th
Cir. 1987), cert. denied sub nom. Winfrey v. Armontrout, 488
U.S. 833, 109 S.Ct. 91 (1988); United States v. Glover, 596
F.2d 857, 866 (9th Cir.), cert. denied, 444 U.S. 860, 100 S.Ct.
124 (1979), and cert. denied sub nom. Morrow v. United
States, 444 U.S. 857, 100 S.Ct. 117 (1979); see also United
A-17
States v. Bad Hand, 926 F.Supp. 891, 899-900 (D.S.D. 1996)
(collecting cases). Here, in addition to the testimony of a
psychologist who documented Henderson’s below-aver-
age I.Q. and limited reading abilities, the state court had
other evidence suggesting that Henderson was able to
comprehend what his rights were and to waive them
knowingly and voluntarily. The state’s forensic psychia-
trist had deemed him fit for trial, finding, among other
things, that Henderson was able to appreciate the nature
of the charges against him. The police officers who
observed Henderson on the day of his arrest described
him as cooperative and understanding of what was tran-
spiring. According to those officers, Henderson had
acknowledged his rights on each of the several occasions
that they were explained to him. Henderson himself testi-
fied at the suppression hearing that he had been read his
rights, that he had heard them many times before, and
that he had told the police that he understood them.
Indeed, he declined to make a statement on the first two
of these occasions, and later began to speak, according to
Officer Underwood, of his own accord and at his own
initiative. He then gave a statement to Kardas, according
to the state’s witnesses, knowing full well who Karas
was. This was not, finally, Henderson’s first encounter
with the authorities. At age eighteen, Henderson already
had a significant criminal record and in fact had, by the
state’s account, already encountered Kardas in the con-
text of a juvenile prosecution. Under all of these circum-
stances, we must accept the state courts’ determination
that Henderson was able to make a valid decision to
forego his Miranda rights and speak with the police and
with Kardas and that he in fact did so.
A-18
B. Impeachment of Chavez
Chavez’s testimony was crucial to the state’s case
against Henderson. The use of narcotics can, obviously,
affect the ability of a witness to perceive, to recall, and to
recount the events she has observed. Whether Chavez
may have been under the influence of narcotics at the
time of the offense (or at some other pertinent time) was
thus an appropriate subject of inquiry and impeachment.
United States v. Cameron, 814 F.2d 403, 405 (7th Cir. 1987).
But we agree that Henderson was not deprived of his
right to confront the witnesses against him when the trial
court barred the testimony of Quintin Jones.3 Had the
proffer of Jones’ testimony established that Chavez was
using narcotics within the time frame of the events to
which she testified, it might have been improper and
prejudicial to Henderson to exclude the testimony.
Instead, however, Jones was held up as a witness who
would testify simply that he had known Chavez to use
drugs on many occasions; we do not know when those
occasions were in reference to the murder of Leonard and
the attempted murder of Chavez. It is thus not at all clear
that the testimony was probative of Chavez's ability to
recognize and identify the individual who committed the
3 The district court suggested that despite the fact that
Jones was not permitted to testify, Henderson himself could
have taken the stand to impeach Chavez on the subject of her
alleged drug use. Assuming that Henderson could have given
such testimony as a factual matter, we agree with Henderson
that this is irrelevant to the propriety of the trial court's decision
to exclude Jones’ testimony on this subject. Henderson, of
course, enjoyed a Fifth Amendment right not to take the stand,
which he exercised.
A-19
offense. See United States v. Robinson, 956 F.2d 1388, 1398
(7th Cir.), cert. denied, 506 U.S. 1020, 113 S.Ct. 654 (1992)
(testimony as to witness’ drug use properly excluded
where voir dire did not establish that it affected the
witness’ memory of relevant events). Absent a connection
to Chavez’s cognitive abilities, Jones’ testimony would
have served only to impeach her character, a purpose we
have repeatedly deemed improper. See United States v.
Neely, 980 F.2d 1074, 1081 (7th Cir. 1992); Robinson, 956
F.2d at 1397-98; Cameron, 814 F.2d at 406. Under these
circumstances, we see no error, and certainly none rising
to the level of a constitutional deprivation, in the decision
to bar Jones from testifying on this topic. Robinson, 956
F.2d at 1398; Cameron, 814 F.2d at 406.
Ill.
The record establishes no error in the state courts’
conclusion that Henderson voluntarily, knowingly, and
intelligently waived his Miranda rights and that the testi-
mony of Quintin Jones concerning Mona Chavez's pur-
ported drug use was properly excluded. The district
court’s decision to deny Henderson’s petition for a writ
of habeas corpus was therefore correct.
AFFIRMED.
A true Copy:
Teste:
Clerk of the United States Court of
' Appeals for the Seventh Circuit
A-20
UNITED STATES COURT OF APPEALS
FOR THE SEVENTH CIRCUIT
CHICAGO, ILLINOIS 60604
December 5, 1996.
Before
Honorable ILANA DIAMOND ROVNER,
Circuit Judge
Honorable DIANE P. WOOD, Circuit Judge
Honorable TERENCE T. EVANS, Circuit
Judge
Nos. 95-1834
LADELL HENDERSON,
Petitioner-Appellant,
Appeal from the United
States District Court for the
Northern District of
V. Illinois, Eastern Division
GEORGE E. DeTELLA
Defendant-Appellee,
No. 91 C 7288
Brian Barnett Duff, Judge.
eee we we
ORDER
On consideration of the petition for rehearing filed
by petitioner-appellant on November 25, 1996, all of the
judges on the panel having voted to deny the same,
IT IS HEREBY ORDERED that the aforesaid petition
for rehearing be, and the same is hereby, DENIED.
A-21
UNITED STATES COURT OF APPEALS
For the Seventh Circuit
Chicago, Illinois 60604
October 23, 1996
Before
Hon. ILANA DIAMOND ROVNER,
Circuit Judge
LADELL HENDERSON, _]
Petitioner-Appellant, 7
No. 95-1834 _
GEORGE E. DETELLA, |!
Respondent-Appellee. :
Appeal from the United
States District Court for the
Northern District of
Illinois, Eastern Division.
No. 91 C 7288
Brian Barnett Duff, Judge.
Upon consideration of: “MOTION FOR EXTENSION
OF TIME TO FILE PETITION FOR REHEARING” filed on
October 17, 1996, by counsel for the petitioner-appellant,
IT IS ORDERED that the motion is GRANTED and
the Petition for Rehearing of the appellant is due Novem-
ber 25, 1996.
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(Reserved for use by the Court)
ORDER
The order of January 10, 1995 is amended to read as
follows: the petitioner comes before this court requesting
a certificate of probable cause pursuant to Fed.R.App.P.
22(b) to appeal this court’s denial of his state habeas
petition. The Circuit Court of Cook County convicted the
petitioner of murder, attempted murder of a second indi-
vidual, home invasion and conspiracy to commit murder.
The state court sentenced him to natural life imprison-
ment, thirty years for attempted murder and seven years
for conspiracy to commit murder. The petitioner appealed
his conviction in state courts and filed a habeas petition
before this court. The petitioner raised two grounds in his
habeas petition before this court: (1) Sixth Amendment
right to confront his accuser was violated when the state
court prevented him from introducing a witness to
impeach the surviving victim of the shooting and (2) Fifth
and Fourteenth Amendment rights were violated when
the state court refused to suppress petitioner’s confession
given to an Assistant State’s Attorney. In September 1994,
this court denied the petition for the reasons set forth in
the opinion.
A-24
To prevent frivolous appeals from delaying the abil-
ity of state courts to impose sentences, Congress estab-
lished the requirement that a prisoner obtain a certificate
of probable cause to appeal. Barefoot v. Estelle, 463 U.S.
880, 892 (1983), reh’g denied, 464 U.S. 874 (1983). A certifi-
cate of probable cause requires a petitioner to make a
“substantial showing of the denial of [a] federal right.”
Id. at 893 (quoting Stewart v. Beto, 454 F.2d 268, 270 n.2 (5th
Cir. 1971), cert. denied, 406 U.S. 925 (1972). A petitioner
may demonstrate this by showing that the issues are
debatable among jurists of reason, that a court could
resolve the issues in a different way or that the questions
are adequate to deserve further proceedings. Lozada v.
Deeds, 498 U.S. 430, 432 (1991).
After reviewing the facts, this court is convinced that
the petitioner’s current claims concerning the Fifth, Sixth,
and Fourteenth Amendments do not warrant the issuance
of a certificate of probabie cause for appeal. We believe
that the state trial court, appellate courts and this court
adequately treated these and other issues, including the
petitioner’s fitness to stand trial. We feel that the peti-
tioner’s claims fail to meet the Lozada standard and to
show that he was denied rights guaranteed by the Consti-
tution, laws or treaties of the United States. For this
reason, we deny the petition for a certificate of probable
cause pursuant to Fed.R.App.P. 22(b).
/s/ Brian Barnett Duff
A-25
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A-26
(Reserved for use by the Court)
ORDER
The petitioner comes before this court requesting a
certificate of probable cause pursuant to Fed.R.App.P.
22(b) to appeal this court’s denial of his state habeas
petition. The Circuit Court of Cook County convicted the
petitioner of murder, attempted murder of a second indi-
vidual, home invasion and conspiracy to commit murder.
The state court sentenced him to natural life imprison-
ment, thirty years for attempted murder and seven years
for conspiracy to commit murder. The petitioner appealed
his conviction in state courts and filed a habeas petition
before this court. The petitioner raised two grounds in his
habeas petition before this court: (1) Sixth Amendment
right to confront his accuser was violated when the state
court prevented him from introducing a witness to
impeach the surviving victim of the shooting and (2) Fifth
and Fourteenth Amendment rights were violated when
the state court refused to suppress petitioner’s-confession
given to an Assistant State’s Attorney. In September 1994,
this court denied the petition for the reasons set forth in
the opinion.
To prevent frivolous appeals from delaying the abil-
ity of state courts to impose sentences, Congress estab-
lished the requirement that a prisoner obtain a certificate
A-27
of probable cause to appeal. Barefoot v. Estelle, 463 U.S.
880, 892 (1983), reh’g denied, 464 U.S. 874 (1983). A certifi-
cate of probable cause requires a petitioner to make a
“substantial showing of the denial of [a] federal right.”
Id. at 893 (quoting Stewart v. Beto, 454 F.2d 268, 270 n.2 (Sth
Cir. 1971), cert. denied, 406 U.S. 925 (1972). A petitioner
may demonstrate this by showing that the issues are
debatable among jurists of reason, that a court could
resolve the issues in a different way or that the questions
are adequate to deserve further proceedings. Lozada v.
Deeds, 498 U.S. 430, 432 (1991).
After reviewing the facts, this court is convinced that
the petitioner’s current claims concerning the Fifth, Sixth,
and Fourteenth Amendments do not warrant the issuance
of a certificate of probable cause for appeal. We believe
that the state trial court, appellate courts and this court
adequately treated these and other issues, including the
petitioner’s fitness to stand trial. We feel that the record
before us presents no constitutional issue. For this reason,
we deny the petition for a certificate of probable cause
pursuant to Fed.R.App.P. 22(b).
/s/ Brian Barnett Duff
A-28
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
Eastern Division
Henderson, Ladell JUDGMENT IN A
js CIVIL CASE
George Welbourne CASE NUMBER: 91 c 7288
DOCKETED SEP 20 1994
[ ] Jury Verdict. This action came before the Court for a
trial by jury. The issues have been tried and the jury
has rendered its verdict.
[X] Decision by Court. This action came to trial or hear-
ing before the Court. The issues have been tried or
heard and a decision has been rendered.
IT IS ORDERED AND ADJUDGED Because peti-
tioner has not shown that he was denied rights guaran-
teed by the Constitution, laws or treaties of the United
States, we deny his petition and dismiss this case with
prejudice.
September 13, 1994 H. STUART CUNNINGHAM
Date Clerk
/s/ Alicia Castillo
(By) Deputy Clerk
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A-30
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
UNITED STATES ex rel. LADELL
)
HENDERSON, )
ws )
Petitioner, ) No. 91-C-7288
vs. )
GEORGE WELBORN, Warden,
Respondent. )
MEMORANDUM OPINION
Ladell Henderson brings this petition for 28 U.S.C.
§ 2254 relief on two grounds: (1) his Sixth Amendment
right to confront his accuser was violated when the state
court refused to allow him to introduce a witness who
may have impeached the government's primary witness;
(2) his Fifth and Fourteenth Amendment rights were vio-
lated when the state court refused to supress [sic] a
statement given by petitioner to an Assistant State’s
Attorney. The statement was allegedly inadmissible
because Mr. Henderson did not waive his Miranda rights
and because his confession was not voluntary.'
“Federal habeas actions do not lie for mere errors of
state laws.” Stephens v. Miller, 13 F.3d 998, 1001 (7th Cir.
1 We asked counsel for the petitioner to submit briefs on the
question of whether Mr. Henderson was fit to stand trial,
because of his alleged deficient mental capacity. Counsel for the
petitioner has assured us that the state court adequately
considered this issue and decided that Mr. Henderson was
indeed fit to stand trial.
A-31
1994) en banc. Our inquiry is therefore limited to whether
Henderson was denied his rights under the “Constitu-
tion, laws or treaties of the United States.” Id.
“Because the admissibility of evidence in State court
Proceedings generally is a matter of State law, state court
evidentiary rulings rarely will serve as grounds for grant-
ing a writ of habeas corpus.” Lilly v. Gilmore, 988 F.2d 783,
786 (7th Cir. 1993) cert. den. 114 S.Ct. 154 (1993). Error in
the exclusion of evidence reaches constitutional magni-
tude if the excluded evidence creates a reasonable doubt
that otherwise did not exist. Id.
Here, the trial court’s decision to exclude the
impeachment testimony of Quentin Jones neither creates
a reasonable doubt a [sic] to Henderson’s guilt nor consti-
tutes a violation of the Sixth Amendment's confrontation
clause. First, there was ample evidence in the record of
Henderson’s guilt. Second, the state court did not pro-
hibit Henderson from impeaching the government's wit-
ness’ alleged use of drugs and her relationships with the
other perpetrators. Indeed, counsel for Henderson ques-
tioned the witness about her drug use, and could have
impeached her through Henderson’s testimony, since the
government's witness allegedly used drugs in his pres-
ence. The trial court did not preclude the petitioner from
attempting to impeach the witness, only from attempting
to impeach her through Jones’ testimony. Jones’ testi-
mony was not exculpatory, and, looking at the record as a
whole, we find that Henderson was not deprived of “a
meaningful opportunity to elicit available, relevant infor-
mation that was likely to effectively impeach the cred-
ibility of the witness.” U.S. v. Cameron, 814 F.2d 403, 406
(7th Cir. 1987).
~
OO
A-32
Petitioner’s argument that his post-arrest statement
was unconstitutionally admitted because he did not
waive his Miranda rights is likewise without merit. Both
the trial and appellate courts found that Henderson
knowingly waived his Miranda rights. People v. Henderson,
175 Ill. App. 3d 483, 489 (1st Dist. 1988). State-court
determinations of the validity of Miranda waivers are
presumed correct under § 2254(d). Baskin v. Clark, 956
F.2d 142 (7th Cir. 1992), cert. den. 113 S.Ct. 109 (1992).
Here, the state-court determination is supported by the
statements of the Assistant State’s Attorney.
Further, Henderson’s claims of involuntariness
because of mental deficiency is belied by the fact that he
attempted to refute the validity of his Miranda waiver
after reading his statement. Under the totality of the cir-
cumstances presented in the record, we find that Hender-
son waived his Miranda rights, and that he voluntarily
made the disputed statement. See e.g., United States v.
Carter, 910 F.2d 1524, 1529 (7th Cir. 1990), cert. den. 499
U.S. 978 (1991).
Because petitioner has not shown that he was denied
rights guaranteed by the Constitution, laws or treaties of
the United States, we deny his petition and dismiss this
case, with prejudice.
ENTER:
/s/ Brian Barnett Duff
I. DUFF,
JUDGE
UNITED STATES
DISTRICT COURT
DATE: September 13, 1994
A-33
175 Ill.App.3d 483
124 Ill.Dec. 934
PEOPLE of the State of Illinois,
Plaintiff-Appellee,
Vv.
Ladell HENDERSON,
Defendant-Appellant.
No. 85-1290.
Appellate Court of Illinois,
First District, Third Division.
Sept. 28, 1988.
Rehearing Denied Oct. 24, 1988.
Defendant was convicted in the Circuit Court, Cook
County, Earl Strayhorn, J., of murder, attempted murder,
home invasion, and conspiracy to commit murder, and he
appealed. The Appellate Court, Rizzi, J., held that: (1)
instruction did not allow jury to find defendant guilty of
attempted murder without finding that he had specific
intent to kill; (2) evidence of alleged drug use of com-
plaining witness could be excluded; (3) evidence of
defendant’s impaired intellectual capabilities and his
below average I.Q. did not establish that defendant's
statement was not made voluntarily and that he did not
knowingly waive his right to counsel; (4) testimony of
victim and police officer as to victim’s prior identification
of defendant was admissible to corroborate in-court iden-
tification; (5) sentence to term of natural life imprison-
ment for murder conviction was not abuse of discretion;
and (6) defendant could not be convicted and sentenced
on both murder and conspiracy to commit murder
charges.
A-34
Affirmed in part; reversed in part.
Steven Clark, Chicago (Cheryl M. Berdelle, of counsel),
for defendant-appellant.
Richard M. Daley, Chicago (Thomas V. Gainer, Jr.,
Christopher J. Cummings, Michael J. O’Brien, of counsel),
for plaintiff-appellee. |
Justice RIZZI delivered the opinion of the court:
Defendant, Ladell Henderson, was found guilty of
murder, attempted murder, home invasion and conspir-
acy to commit murder. Defendant was sentenced to natu-
ral life imprisonment for murder, thirty years for
attempted murder and seven years for conspiracy to com-
mit murder. Defendant was not sentenced on the convic-
tion for home invasion. On appeal, defendant argues that
(1) the trial court’s instruction on attempted murder was
erroneous in that it allowed the jury to find defendant
guilty without finding that he acted with the specific
intent to kill; (2) the trial court improperly excluded
evidence of the complaining witness’ alleged drug addic-
tion; (3) the trial court erroneously denied defendant's
motion to suppress his pre-trial statement; (4) the State
was improperly permitted to bolster the complainant's
testimony; (5) the trial court abused its discretion in
sentencing defendant to a term of natural life imprison-
ment and (6) defendant was improperly convicted and
sentenced on both murder and conspiracy to commit
murder. We affirm in part and reverse in part.
The testimony introduced by the State at trial estab-
lishes that on February 28, 1984, Mona Chavez and her
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uncle, Dennis Leonard, were at home watching television.
Chavez heard a knock on the door. When Leonard
opened the door, defendant and two other men were
Standing in the doorway. Two of the men grabbed
Leonard and threw him to the floor. Defendant then
walked to Chavez and said, “You gonna die bitch.”
Defendant told Leonard that he was going to die, pulled
out a gun and fired two shots into the back of Leonard’s
head. Chavez pleaded for her life with defendant but he
told her that if he could not have her then nobody would.
Defendant then grabbed her hair, pulled her head to the
side and shot her.
Chavez stumbled down the apartment stairs and
cried for help. When the police arrived, Chavez informed
them that defendant had shot her. Chavez knew defen-
dant from the neighborhood because he had asked her
several times to be “his lady.” Chavez had also seen
defendant four days prior to the shooting because he
kicked her back door in to her apartment and took some
of her personal possessions.
Assistant State’s Attorney Kim Kardas, who inter-
viewed defendant subsequent to defendant's arrest, also
testified. Kardas testified that prior to his questions
directed to defendant, he informed defendant that he was
an assistant State’s Attorney. Kardas read defendant his
rights and defendant indicated that he understood.
According to Kardas, defendant stated that he knew what
an assistant State’s Attorney was and also knew that
Kardas was not his lawyer.
According to defendant’s statement, on the evening
of the shooting, defendant was informed by someone
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named Billy Ray that there was a contract out on Chavez.
Billy Ray wanted defendant to take him to Chavez's
apartment. Defendant, Billy Ray and another man,
“Speedy,” went to Chavez’s place. Leonard opened the
door and told Billy Ray that he thought Chavez's debt of
$1500 had been settled. Billy Ray and Speedy took out
their guns and told Leonard to lie down on the floor. In
response to Chavez’s request for help, defendant
informed her that it was out of his hands. Billy Ray and
Speedy told defendant to leave the apartment. As defen-
dant left the apartment, he heard the shots that were
fired.
After Kardas took defendant’s statement and defen-
dant began to read it to make any corrections or changes,
defendant stopped on the second page when he saw the
words “Assistant State’s Attorney.” Defendant then told
Kardas, “I thought you were my lawyer.” Kardas testified
that defendant then claimed that Kardas stated that he
was defendant’s lawyer.
Prior to trial, defendant made a motion to suppress
this statement. At the hearing, the defense presented
witnesses who testified as to defendant's intellectual
capabilities. Leonard Unterberger, a psychologist, stated
that defendant has a below average I.Q. of 64. He further
stated that defendant possesses limited reading abilities.
Unterberger’s conclusions were based upon diagnostic
work performed by the psychological examiners under
Unterberger’s supervision.
The trial court denied defendant’s motion to sup-
press. Following trial, defendant was found guilty by a
jury and sentenced to natural life imprisonment for the
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murder, thirty years for attempted murder and seven
years for conspiracy. No sentence was imposed for home
invasion and the conviction for this charge is not a con-
tention in this appeal.
Defendant first argues that the trial court's instruc-
tion on attempted murder was erroneous in that it
allowed the jury to find defendant guilty of murder with-
out finding that he acted with the specific intent to kill.
The jury was instructed as follows:
A person commits the offense of murder when
he kills an individual, if, in performing the acts
which cause the death, he intends to kill or do
great bodily harm to that individual; or he
knows that such acts would cause death to that
individual; or he knows that such acts create a
strong probability of death or great bodily harm
to that individual; or he is committing the
offense of home invasion.
= * *
A person commits the offense of attempt murder
when he, with intent to commit the offense of
murder, does any act which constitutes a sub-
stantial step toward the commission of the
offense of murder.
* * aa
The offense attempted need not have been com-
mitted. To sustain the charge of attempt, the
State must prove the following propositions:
* First, that the defendant, or one for whose
conduct he is legally responsible, performed
an act which constituted a substantial step
toward the commission of the offense of
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murder; and second, that the offender, or
one for whose conduct he is legally respon-
sible, did so with intent to commit the
offense of murder.
The instruction as given makes specific reference to
the “intent to commit the offense of murder.” However,
relying on People v. Kraft (1985), 133 Ill.App.3d 294, 88
Ill.Dec. 546, 478 N.E.2d 1154, defendant argues that this
instruction allowed the jury to convict him if they found
that he possessed less than the specific intent to commit
murder. We disagree.
In Kraft, the court held that because attempted mur-
der requires the mental state of intent to kill, the instruc-
tion given which “permitted a conviction upon a finding
that a defendant acted with knowledge that his action
created a strong probability of death even if the jury
believed defendant did not intend to kill anyone” was
defective. 133 Ill.App.3d 294, 302, 88 Ill.Dec. 546, 552, 478
N.E.2d 1154, 1160.
Kraft however is distinguishable from the case at bar.
In Kraft, the defendant was charged only with attempted
murder. In the instant case however, defendant was
charged with both attempted murder and murder. It
would be illogical to say that the court could not give an
instruction on murder containing alternate states of mind
when defendant was in fact charged with murder and
was entitled to an instruction thereon. We therefore find
defendant’s argument unpersuasive and conclude that
the instructions as given did not allow the jury to find
defendant guilty of attempted murder without finding
that he had the specific intent to kill. Accordingly, the
A-39
trial court did not err in giving the instructions to the
jury.
Defendant next argues that the trial court improperly
excluded evidence of the complaining witness’ alleged
drug addiction. Defendant asserts that evidence of habit-
ual drug use is a significant fact in evaluating the cred-
ibility of a witness. While we agree that a witness’ drug
addiction at the time that an offense or event occurred is
a proper area for cross-examination, the trial court is
vested with discretion to determine the admissibility of
evidence. Thus, the trial court’s determination will not be
disturbed on review absent an abuse of that discretion.
People v. Rogers (1985), 135 Ill.Apv.3d 608, 624, 90 IIl.Dec.
660, 671, 482 N.E.2d 639, 650.
Here, defendant attempted to establish that the vic-
tim had been observed using drugs “on numerous occa-
sions” prior to the night of the crime. On cross-
examination, the victim was questioned about her rela-
tionship with a defense witness who the defense asserted
would testify about the victim’s alleged drug use. The
victim denied any involvement with this defense witness
as well as any drug use. Defendant did not question the
victim any further regarding this matter. However, defen-
dant later attempted to introduce evidence of the victim’s
alleged drug use. Following defendant's offer of proof,
the trial court excluded this evidence finding that “the
only reason [you're] doing it is to dirty up the witness.”
Defendant made no reference or qualification as to
when the victim allegedly used drugs or the extent of
impairment from the use of any drugs. Thus, we are
inclined to agree with the trial court that such evidence
A-40
would not shed light on the victim’s ability to adequately
perceive the events as they occurred on the night of the
offense. To the contrary, this evidence would simply
“dirty up” the witness in the eyes of the jury. Accord-
ingly, we find that the trial court properly excluded any
evidence of the victim’s alleged drug addiction.
Defendant also argues that the trial court erred in
denying defendant’s motion to suppress his pre-trial
statement. Defendant presented testimony evincing his
impaired intellectual capabilities and his below average
I.Q. Based upon this evidence, defendant argues that his
statement was not made voluntarily and that he did not
knowingly waive his right to counsel.
We initially note that evidence of limited intellectual
capacity alone does not indicate that a defendant is inca-
pable of waiving his constitutional rights and making a
voluntary confession. People v. Ellison (1984), 126
Ill.App.3d 985, 992, 81 Ill.Dec. 222, 226, 466 N.E.2d 1024,
1028. To the contrary, it is only one of the issues to be
considered in reviewing the totality of the circumstances
under which a confession is made. Moreover, the police
are not required to conduct a mental examination of the
accused with a view to ascertaining his ability to compre-
hend his rights as a prerequisite to accepting the
accused’s voluntary waiver. People v. Cooper (1975), 30
Ill.App.3d 326, 332, 332 N.E.2d 453, 458. The particular
facts and circumstances of each case as well as the experi-
ence, conduct and background of the accused must be
considered in determining whether a waiver is know-
ingly and intelligently made.
A-41
In reviewing the totality of circumstances surround-
ing defendant's statement, we find that a preponderance
of the evidence demonstrates that the defendant under-
stood and knowingly waived his constitutional rights.
Where as here the record supports a finding that defen-
dant’s subpar mentality did not interfere with his ability
to comprehend the meaning of a voluntarily made state-
ment or a right to counsel, his statement will not be
suppressed.
Defendant next argues that the State was improperly
permitted to bolster the victim’s in-court testimony with
Prior consistent out-of-court statements. Defendant
objects to the victim’s testimony of an identification she
made to the police the morning following the incident.
Defendant also objects to an investigating police officer’s
testimony of the identification the victim made at the
scene.
In People v. Rogers (1980), 81 Ill.2d 971, 44 Ill.Dec. 254,
411 N.E.2d 223, our Supreme court recognized that
although a witness may not testify as to out-of-court
statements made for the purpose of corroborating his in-
court testimony, that rule does not apply to statements of
identification. 81 Ill.2d, 571, 578, 44 Ill.Dec. 254, 258, 411
N.E.2d 223, 227. The court noted that evidence of out-of-
court identifications by both the identifying witness and
a third person who saw or heard the identification is
admissible for the limited purpose of corroborating the
in-court identification. The court stated that such corrob-
oration is justified to rebut the notion that “by the time of
trial, the witness’ mind has become so conditioned that
there is little likelihood that he would not identify the
A-42
person in court.” 81 Ill.2d 571, 578, 44 Ill.Dec. 254, 258,
411 N.E.2d 223, 227.
Thus, based upon the holding in Rogers, we find that
the trial court properly permitted the victim as well as
the police officer to testify as to the victim’s prior identi-
fication of defendant.
Defendant next argues that the trial court abused its
discretion in sentencing defendant to a term of natural
life imprisonment. We disagree.
The imposition of a sentence is a matter of judicial
discretion, and absent an abuse of that discretion, the trial
court’s determination will not be disturbed on appeal.
People v. Lipa (1982), 109 Ill.App.3d 610, 614, 65 Ill.Dec.
207, 210, 440 N.E.2d 1062, 1065. Moreover, a trial court’s
determination of a sentence is entitled to great deference
and weight on appeal, because it is in a better position
than a reviewing court to determine the proper sentence.
The trial court has the opportunity to consider the subjec-
tive circumstances in each particular case such as the
defendant’s (1) demeanor and character; (2) mentality; (3)
abnormal or subnormal tendencies and (4) natural incli-
nation or aversion to commit crime. People v. Reese (1984),
121 Ill.App.3d 977, 989, 77 Ill.Dec. 390, 398, 460 N.E.2d
446, 454.
In the case at bar, the State, in aggravation, presented
evidence that defendant had been adjudicated a delin-
quent three years prior for attempted murder and aggra-
vated battery. The State also introduced evidence that
defendant was on probation for burglary at the time of
this offense. In light of the nature of this crime and
A-43
defendant’s backsround, we find that the trial court did
not abuse its discretion in sentencing defendant.
Defendant next argues that he was improperly con-
victed and sentenced on both murder and conspiracy to
commit murder because there is a statutory prohibition
against convictions for both the inchoate and the princi-
pal offense. The State concedes that under Section 8-5 of
the Criminal Code “no person shall be convicted of both
the inchoate and the principal offense.” Ill.Rev.Stat.1985,
ch. 38, par. 8-5. Accordingly, we vacate defendant’s con-
viction for conspiracy to commit murder, and affirm
defendant’s conviction and sentence for attempted mur-
der and murder.
AFFIRMED IN PART; VACATED IN PART.
McNAMARA and FREEMAN, JJ., concur.
A-44
STATE CUSTODY
§ 2254. State custody; remedies in Federal courts
(a) The Supreme Court, a Justice thereof, a circuit
judge, or a district court shall entertain an application for
a writ of habeas corpus in behalf of a person in custody
pursuant to the judgment of a State court only on the
ground that he is in custody in violation of the Constitu-
tion or laws or treaties of the United States.
(b) An application for a writ of habeas corpus in
behalf of a person in custody pursuant to the judgment of
a State court shall not be granted unless it appears that
the applicant has exhausted the remedies available in the
courts of the State, or that there is either an absence of
available State corrective process or the existence of cir-
cumstances rendering such process ineffective to protect
the rights of the prisoner.
(c) An applicant shall not be deemed to have
exhausted the remedies available in the courts of the
State, within the meaning of this section, if he has the
right under the law of the State to raise, by any available
procedure, the question presented.
(d) In any proceeding instituted in a Federal court
by an application for a writ of habeas corpus by a person
in custody pursuant to the judgment of a State court, a
determination after a hearing on the merits of a factual
issue, made by a State court of competent jurisdiction in a
proceeding to which the applicant for the writ and the
State or an officer or agent thereof were parties, evi-
denced by a written finding, written opinion, or other
reliable and adequate written indicia, shall be presumed
A-45
to be correct, unless the applicant shall establish or it
shall otherwise appear, or the respondent shall admit -
(1) that the merits of the factual dispute
were not resolved in the State court hearing;
(2) that the factfinding procedure
empioyed by the State court was not adequate to
afford a full and fair hearing;
(3) that the material facts were not ade-
quately developed at the State court hearing;
(4) that the State court lacked jurisdiction
of the subject matter or over the person of the
applicant in the State court proceeding;
(5) that the applicant was an indigent and
the State court, in deprivation of his constitu-
tional right, failed to appoint counsel to repre-
sent him in the State court proceeding;
(6) that the applicant did not receive a full,
fair, and adequate hearing in the State court
proceeding; or
(7) that the applicant was otherwise
denied due process of law in the State court
proceeding;
(8) or unless that part of the record of the
State court proceeding in which the determina-
tion of such factual issue was made, pertinent to
a determination of the sufficiency of the evi-
dence to support such factual determination, is
produced as provided for hereinafter, and the
Federal court on a consideration of such part of
the record as a whole concludes that such fac-
tual determination is not fairly supported by the
record:
A-46
And in an evidentiary hearing in the proceeding in the
Federal court, when due proof of such factual determina-
tion has been made, unless the existence of one or more
of the circumstances respectively set forth in paragraphs
numbered (1) to (7), inclusive, is shown by the applicant,
otherwise appears, or is admitted by the respondent, or
unless the court concludes pursuant to the provisions of
paragraph numbered (8) that the record in the State court
proceeding, considered as a whole, does not fairly sup-
port such factual determination, the burden shall rest
upon the applicant to establish by convincing evidence
that the factual determination by the State court was
erroneous.
(e) If the applicant challenges the sufficiency of the
evidence adduced in such State court proceeding to sup-
port the State court’s determination of a factual issue
made therein, the applicant, if able, shall produce that
part of the record pertinent to a determination of the
sufficiency of the evidence to support such determina-
tion. If the applicant, because of indigency or other rea-
son is unable to produce such part of the record, then the
State shall produce such part of the record and the Fed-
eral court shall direct the State to do so by order directed
to an appropriate State official. If the State cannot provide
such pertinent part of the record, then the court shall
determine under the existing facts and circumstances
what weight shall be given to the State court’s factual
determination.
(f) A copy of the official records of the State court,
duly certified by the clerk of such court to be a true and
correct copy of a finding, judicial opinion, or other reli-
able written indicia showing such a factual determination
A-47
by the State court shall be admissible in the Federal court
proceeding.
ANTITERRORISM ACT OF 1996
P.L. 104-132 Sec. 104
SEC. 104. SECTION 2254 AMENDMENTS.
Section 2254 of title 28, United States Code, is
amended -
(1) by amending subsection (b) to read as
follows:
“(b)(1) An application for a writ of habeas corpus
on behalf of a person in custody pursuant to the judg-
ment of a State court shall not be granted unless it
appears that -
“(A) the applicant has exhausted the
remedies available in the courts of the State; or
“(B)(i) there is an absence of available
State corrective process; or
“(ii) circumstances exist that render such
Process ineffective to protect the rights of the
applicant.
“(2) An application for a writ of habeas corpus may
be denied on the merits, notwithstanding the failure of
the applicant to exhaust the remedies available in the
courts of the State.
A-48
“(3) A State shall not be deemed to have waived the
exhaustion requirement or be estopped from reliance
upon the requirement unless the State, through counsel,
expressly waives the requirement.”;
(2) by redesignating subsections (d), (e), and (f)
as subsections (e), (f), and (g), respectively;
(3) by inserting after subsection (c) the follow-
ing new subsection:
“(d) An application for a writ of habeas corpus on
behalf of a person in custody pursuant to the judgment of
a State court shall not be granted with respect to any
claim that was adjudicated on the merits in State court
proceedings unless the adjudication of the claim -
“(1) resulted in a decision that was contrary to,
or involved an unreasonable application of, clearly estab-
lished Federal law, as determined by the Supreme Court
of the United States; or
“(2) resulted in a decision that was based on an
unreasonable determination of the facts in light of the
evidence presented in the State court proceeding.”;
(4) by amending subsection (e), as redesignated
by paragraph (2), to read as follows:
“(e)(1)_ In a proceeding instituted by an application
for a writ of habeas corpus by a person in custody pur-
suant to the judgment of a State court, a determination of
a factual issue made by a State court shall be presumed to
A-49
be correct. The applicant shall have the burden of rebut-
ting the presumption of correctness by clear and convinc-
ing evidence.
“(2) If the applicant has failed to develop the factual
basis of a claim in State court proceedings, the court shall
not hold an evidentiary hearing on the claim unless the
applicant shows that -
“(A) the claim relies on —
“(i) a new rule of constitutional law, made
retroactive to cases on collateral review by the Supreme
Court, that was previously unavailable; or
“(ii) a factual predicate that could not have
been previously discovered through the exercise of due
diligence; and
“(B) the facts underlying the claim would be
sufficient to establish by clear and convincing evidence
that but for constitutional error, no reasonable factfinder
would have found the applicant guilty of the underlying
offense.”; and
(5) by adding at the end the following new
subsections:
“(h) Except as provided in section 408 of the Con-
trolled Substances Act, in all proceedings brought under
this section, and any subsequent proceedings on review,
the court may appoint counsel for an applicant who is or
becomes financially unable to afford counsel, except as
provided by a rule promulgated by the Supreme Court
pursuant to statutory authority. Appointment of counsel
under this section shall be governed by section 3006A of
title 18.
A-50
“(i) The ineffectiveness or incompetence of counsel
during Federal or State collateral post-conviction pro-
ceedings shall not be a ground for relief in a proceeding
arising under section 2254.”.
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.