Agnew v. Leibach

• Decision Date: 21 May 2001
• Docket Number: No. 98-3659,98-3659
• Citation: 250 F.3d 1123
• Parties: (7th Cir. 2001) GREGORY AGNEW, Petitioner-Appellant, v. BLAIR J. LEIBACH, Respondent-Appellee
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1123

250 F.3d 1123 (7th Cir. 2001)

GREGORY AGNEW, Petitioner-Appellant, v. BLAIR J. LEIBACH, Respondent-Appellee.

No. 98-3659

In the United States Court of Appeals For the Seventh Circuit

ARGUED JANUARY 18, 2001

DECIDED MAY 21, 2001

Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 95 C 3700--Blanche M. Manning, Judge.

Before CUDAHY, KANNE and ROVNER, Circuit Judges.

ROVNER, Circuit Judge.

Gregory Agnew sought habeas corpus relief from his conviction for armed robbery in Illinois state court twelve years ago. In addition to a claim for ineffective assistance of counsel, Agnew maintained that the Illinois trial court should have granted him a mistrial when the State called as a substantive witness of his guilt the bailiff who had been in charge of the jury throughout the first part of his trial. The district court found that Agnew could not show that he was prejudiced by the bailiff's testimony, and that his attorney's decisions were reasonable under the circumstances, and thus the court denied habeas relief. Because the prejudice of the bailiff's testimony is inherent under relevant Supreme Court precedent, we reverse and remand.

I.

Agnew was charged with armed robbery for allegedly hitting a man over the head with a garden hoe, and taking a dollar from him in an altercation at a gas station. Agnew intended to admit at trial that he was involved in an altercation with the victim, Carlos Duarte, but planned to testify that the fight concerned who had the right to use a pre- paid gas pump, and that Duarte delivered the first blow. Agnew denied that he took any money from Duarte or that he intended to take any money from him. The State's challenge was to show that Agnew was motivated by robbery and that he, not Duarte, was the attacker. In order to prove all of the elements of robbery (as opposed to battery), the State also was required to show that Agnew in fact took money from Duarte.

The trial began on June 13, 1988.¹ After hearing motions in limine, the trial court asked the bailiff, Deputy Fred House, to direct the prospective jurors into their seats in the courtroom. The court began conducting voir dire, but before all the jurors were selected, the court called a recess at noon for lunch. At 1:30 p.m., the court reconvened and completed jury selection. After another brief recess, the trial commenced at approximately 1:45 p.m. The State presented three witnesses that afternoon in support of the charge. Throughout this portion of the trial, Deputy House performed all the duties of a bailiff, including ushering the jury in and out of the courtroom.

The first witness, Sandra Hill, testified that she, Tommy Miller, Derrick Lovelace, Bay Walls and Agnew were all at the home of Haakeem Adu on the night in question. Everyone present was drinking beer and wine, and although the record does not reveal whether they were intoxicated, that would be a reasonable inference to draw from their behavior that night. In the wee hours of the morning, Agnew began arguing with Miller, and they went outside to fight. After the fight, Miller noticed he was missing $200 in cash and some heroin. Hill, Miller, Walls and Agnew searched unsuccessfully for the missing items, and Walls then left the party. Shortly thereafter, the remaining revelers began to suspect that Walls was the thief and Hill, Miller, Lovelace and Agnew went out in Lovelace's car to look for him. For reasons not revealed in the record, Miller placed a garden hoe in the back seat of the car next to Agnew. After driving around for some time, and unable to find Walls, they stopped at a gas station for snacks at approximately 3:30 a.m. Hill testified that at the gas station, Agnew said he saw a Mexican man coming out of the station with a large amount of cash in his hands, and asked the others in the car if anyone wanted to "be in on it." Because the other passengers wanted no part of this kind of trouble, they declined, and when Agnew got out of the car, they drove away from the station. As they drove away, Hill heard a man yell, and she turned and saw Agnew hitting a man with the garden hoe.

That man, Carlos Duarte, was the State's next witness. He testified that he stopped for gas on his way to work, and that he went into the station to pre-pay for five dollars worth of gas with a fifty dollar bill. He placed his change in his shirt pocket as he went outside to pump the gas, but he was hit on the head from behind and fell to the ground. He testified that Agnew grabbed him by the collar and demanded money. Agnew searched Duarte's coat pocket, pants pockets and wallet and took a dollar that he found in a pants pocket. He did not find the $45 in Duarte's shirt pocket. Duarte required eight stitches for his injuries.

The last witness in the State's case-in- chief was Officer Herbert Browne. He testified that Agnew called the police that night to report that Lovelace had threatened him with a garden hoe and then had stolen his jacket. Browne met with Agnew at 4:30 a.m., and after Agnew lodged his complaint, he asked the officer if anyone had reported a robbery in the vicinity of the gas station that night. The officer did not record this inquiry in his official report, presumably because he did not consider it significant at the time. Officer Browne's in-court testimony concluded at 3:45 p.m. on the first day of Agnew's trial, and the court decided to recess for the day. The jury was sent home for the evening.

The assistant state's attorney then informed the court that the bailiff who had been attending the jury, Deputy Fred House, had come forward to report that on the day Agnew was arrested some four months earlier, the deputy had a material conversation with Agnew. Deputy House had apparently been stationed at the local jail at the time of Agnew's arrest. The state's attorney informed the trial court that Agnew told Deputy House that he had taken a dollar on the night in question. The State wished to reserve the right to call Deputy House as a rebuttal witness if Agnew decided to testify in his own defense. Acknowledging that a special relationship is engendered by the bailiff caring for the jury, the State requested that the court appoint a different bailiff to attend to the jury for the re mainder of the trial. Agnew's counsel immediately moved for a mistrial. The State opposed the motion, arguing that a mistrial was premature because the State was not certain it would call the Deputy to testify. The State also contended that there was no evidence that the jury was improperly influenced, and that no irreparable harm had been done in the mere two hours of testimony that had been taken at that time. Agnew's counsel maintained that whether or not the Deputy had discussed the case with the jury was irrelevant, and that the prejudice was inherent when the person charged with caring for the jury becomes a witness against the accused.

The court agreed that a different bailiff should be appointed to take charge of the jury for the remainder of the trial. Agnew's counsel declined the court's invitation to question the deputy about any conversations he had with the jurors, and the court commented that the deputy's contact with the jury at that point was "extremely brief." Tr. at 224. Finding that there was no "long term involvement" with the jury as would occur during sequestration, the court denied the motion for a mistrial. Tr. at 225. No one inquired whether the deputy had accompanied the jurors to lunch, or to what extent he had conversed with them about any matter, including the trial. On the next day, the State rested, and Agnew took the stand in his own defense. He told a decidedly different story. He testified that he was a passenger in a car with Lovelace, Miller and Hill on the night in question. He claimed he was simply seeking a ride home, but others in the car decided to drive around town looking for places to buy drugs. According to Agnew, the group stopped for gas, and Lovelace asked him to pump the gas and get rid of the hoe. As Lovelace went in to pay, Agnew tossed the hoe towards a garbage can but missed. Agnew testified that Duarte then walked up and attempted to use the pump. They began to argue over who had the right to use the pump, and after Duarte kicked Agnew in the groin, Agnew picked up the hoe and fought back. Agnew denied taking any money from Duarte. As he fought with Duarte, Agnew saw Lovelace get back in the car and drive away with Agnew's coat, which was still in the car. Agnew then reported the theft of his coat to the police, but did not mention the fight because he feared expulsion from an alcohol rehabilitation program he had voluntarily joined.

The defense rested and the State called Deputy House in rebuttal. He testified that he had been working at the Lake County Jail on the day Agnew was arrested. He stated he met Agnew during the shift change, and asked Agnew, "What the fuck are you doing here?" Deputy House testified that Agnew replied, "It's over a dollar. Fucked up. This is over one dollar. Someone should beat my ass and let me go home." Deputy House conceded that he did not write a report of the conversation, and that he did not realize the incident was important until he sat through the first day of trial. At that time, he informed his supervisor and the state's attorney about the conversation.

During closing arguments, the state's attorney drove home the significance of this jail house conversation, characterizing it as an admission and mentioning it no fewer than six times. Tr. at 282 ("[T]here's no doubt that Gregory Agnew did it because he admitted to doing it."); Tr. at 285-86 ("Fred House just took the stand and told you that he told him that down there in that bullpen on the 24th in the afternoon, he asked him what the heck are you in here for, what are you back for? I robbed him. It was over a buck. It was over a fucking dollar. You ought to...