Winsett v. Washington

• Decision Date: 18 November 1997
• Docket Number: No. 94-2891,94-2891
• Citation: 130 F.3d 269
• Parties: Larry WINSETT, Petitioner-Appellant, v. Odie WASHINGTON, Warden of Dixon Correctional Center, Respondent-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 269

130 F.3d 269

Larry WINSETT, Petitioner-Appellant, v. Odie WASHINGTON, Warden of Dixon Correctional Center,

Respondent-Appellee.

No. 94-2891.

United States Court of Appeals, Seventh Circuit.

Argued Sept. 18, 1997.

Decided Nov. 18, 1997.

Allen E. Shoenberger (argued), Loyota University School of Law, Chicago, IL, for Petitioner-Appellant.

Lorna Trinidad DeLeon Amado (argued), Office of the Attorney General, Chicago, IL, Martha E. Gillis, Office of the Attorney General, Criminal Appeals Division, Chicago, IL, for Respondent-Appellee.

Before CUMMINGS, FLAUM, and KANNE, Circuit Judges.

FLAUM, Circuit Judge.

Police officers questioned Larry Winsett in violation of his Miranda rights about his role in a murder-for-hire scheme. In this interrogation, Winsett divulged the name of his accomplice, and the State eventually secured the cooperation of this accomplice in the prosecution of Winsett. Winsett argued in state post-conviction proceedings that the accomplice's testimony should have been inadmissible as the "fruit of a poisonous tree" and that his lawyer should have raised this issue on direct appeal. The Illinois Supreme Court rejected these contentions, and Winsett now appeals the district court's denial of these same claims in his petition for a writ of habeas corpus. We affirm.

I. BACKGROUND

David Robinson had an affair with Maria Zarinara, the wife of Arturo Zarinara, in the summer of 1984. Mrs. Zarinara testified at Petitioner's trial that Robinson became obsessed with her. Robinson let two employees at his construction company know in October 1984 that he was interested in paying someone to kill Mr. Zarinara. One of these employees introduced Robinson to the petitioner, who claimed to know someone who would perform the murder. After some haggling over price, Robinson gave Winsett $20,000 to arrange the murder of Mr. Zarinara; they agreed to refer to the job as a "car sale" in any subsequent conversations. Winsett then subcontracted the hit to Glenn Spruille for $2,000, but Spruille (luckily) could not complete the job despite shooting Zarinara four times on January 9, 1985. Robinson received a phone message that night from a man named "Larry" stating that Robinson's car had been sold.

Four plainclothes police officers ¹ arrested Winsett at his home on February 20, 1985, as he was eating dinner with his family. When the officers placed him under arrest, Winsett immediately told one of the detectives, "I want a lawyer." In addition, Winsett told his wife to call his lawyer numerous times during the course of the arrest in front of his six children, sister-in-law, brother-in-law, and nephew. The trial court found these family members' testimony to be "extremely credible." The officers told Mrs. Winsett that they were taking her husband to the Lake County Sheriff's Office and that he would be able to phone her after he was booked. ²

They instead took Winsett to an interview room in the Waukegan Police Station. Winsett received his Miranda warnings and was asked to sign a waiver form prepared by one of the officers; he refused to sign the waiver and expressed his unwillingness to make any statements until he could speak with his attorney. Undeterred, the officers kept questioning Winsett for nearly two-and-a-half hours. Petitioner asked to speak to his lawyer at least three separate times during this interrogation, but the officers persisted in their interrogation.

Winsett eventually identified Glenn Spruille as his accomplice in the attempted murder of Mr. Zarinara. After making this statement, the police presented Winsett with another Miranda waiver form, which this time he signed. Finally, the officers allowed him to call his wife; telephone records show that he made this call nearly three-and-a-half hours after his arrest at home. Mrs. Winsett relayed the petitioner's location to his lawyer, who arrived at the police station soon thereafter and belatedly advised the petitioner not to sign any statements. Based on Winsett's confession, the police tracked down Spruille, who cooperated in the prosecution of Winsett in exchange for the prosecutor's recommendation of a reduced sentence.

Soon after his indictment, Winsett filed a motion to suppress the statements he made to the police. In the course of this hearing, the circuit court heard evidence from a number of witnesses, including Winsett, his family members, and the police officers, regarding the circumstances of the petitioner's interrogation and statements. Winsett testified that he was "scared and confused" during the interrogation and that the police officers "manipulated [him] into a state of duress and confusion." The court granted the petitioner's motion to suppress the statements because they were made after his repeated requests for counsel in violation of Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981). However, the court found that the petitioner's statements were not involuntary in violation of the Fifth Amendment and could therefore be used for impeachment purposes at trial:

I find there was no trickery, there was no coercion, that there was nothing ... other than the violation of the affirmative request for counsel ... I do not find it was voluntary from-involuntary from the point of view of coercion, so as to suspect authenticity to make it inadmissible under Harris v. New York.

The court denied a subsequent motion in limine in which Winsett claimed that his statements to the police and all evidence resulting from those statements should be excluded as "fruits" of his tainted interrogation; the court stated in its ruling that the "present state of the law was such that the motion was not well taken."

A jury convicted Winsett of attempted murder, solicitation to commit murder, and conspiracy to commit murder. In a post-trial motion, Winsett asked for a new trial based on the admission of Glenn Spruille's testimony, which Winsett characterized as the fruit of an unconstitutional interrogation. The trial court denied this motion and sentenced Winsett to concurrent terms of forty years in prison for the attempted murder and solicitation of murder charges, as well as a fourteen-year prison term for the conspiracy conviction. Defense counsel pressed only two points on direct appeal: (1) the jury did not hear sufficient evidence of the petitioner's guilt beyond a reasonable doubt, and (2) the trial court should not have admitted testimony concerning the cryptic phone message from "Larry" to Robinson on the night of the attempted murder. The Illinois Appellate Court affirmed Winsett's conviction and sentence in an unpublished order on October 2, 1986, and the Illinois Supreme Court denied his petition for leave to appeal on February 6, 1987.

In state post-conviction proceedings, Winsett claimed both that the admission of Spruille's testimony was error and that his appellate counsel was unconstitutionally ineffective in failing to raise this issue on direct appeal. The trial court rejected Winsett's post-conviction petition, but the state appellate court reversed and found merit in his claims. 222 Ill.App.3d 58, 164 Ill.Dec. 673, 583 N.E.2d 589 (1991). The Illinois Supreme Court, though, reversed the appellate court and upheld the trial court's decision, 153 Ill.2d 335, 180 Ill.Dec. 109, 606 N.E.2d 1186 (1992), and the United States Supreme Court then denied his petition for a writ of certiorari, 510 U.S. 831, 114 S.Ct. 102, 126 L.Ed.2d 68 (1993). The district court subsequently denied Winsett's petition for a writ of habeas corpus. United States ex rel. Winsett v. Washington, 860 F.Supp. 479 (N.D.Ill.1994).

II. DISCUSSION

Winsett makes four claims of error in his appeal of the district court's decision. As before, he argues that the trial court should have excluded the testimony of Glenn Spruille as the fruit of an unconstitutional interrogation. He also claims again that his appellate counsel provided ineffective assistance by not raising this point on appeal. In addition, he now adds for the first time a claim that his trial counsel provided inadequate representation by failing to challenge the voluntariness of his statements. Finally, Winsett argues that the district court should not have adjudicated his petition before ruling on his pending motion requesting the appointment of counsel.

We are unable to reach the merits of Winsett's first claim because granting the relief he requests would state a new rule of law in contravention of the rule of Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989). We reject his ineffective assistance of appellate counsel claim based on his inability to show the requisite prejudice; he waived his other ineffective assistance claim by failing to present it to the district court. Finally, his allegation of a due process violation based on the district court's failure to rule on his motion for appointment of counsel is meritless. We therefore affirm the district court's denial of Winsett's petition.

A. Fruit of the Poisonous Tree

Winsett contends that police officers unconstitutionally extracted information from him regarding Glenn Spruille. He argues that the officers violated his Fifth Amendment privilege against self-incrimination by coercing him into making inculpatory statements. Petitioner asserts that the trial court should have granted his motion in limine to exclude all evidence derived from these statements as "fruit of the poisonous tree." See Wong Sun v. United States, 371 U.S. 471, 485-86, 83 S.Ct. 407, 416-17, 9 L.Ed.2d 441 (1963). Under this exclusionary rule, a "poisonous tree" is a violation of one of a defendant's constitutional rights. See, e.g., Harrison v. United States, 392 U.S. 219, 222-23, 88 S.Ct. 2008, 2010-11, 20 L.Ed.2d 1047 (1968) (applying the fruit of the poisonous tree doctrine to a Fifth Amendment violation). Winsett believes that the poisonous tree in this case is the officers' violation of his Miranda rights...