401 F.3d 794 (7th Cir. 2005), 04-1513, Richardson v. Briley

Docket Nº:04-1513.
Citation:401 F.3d 794
Party Name:Floyd RICHARDSON, Petitioner-Appellee, v. Kenneth R. BRILEY, Respondent-Appellant.
Case Date:March 18, 2005
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit

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401 F.3d 794 (7th Cir. 2005)

Floyd RICHARDSON, Petitioner-Appellee,


Kenneth R. BRILEY, Respondent-Appellant.

No. 04-1513.

United States Court of Appeals, Seventh Circuit.

March 18, 2005.

Argued Nov. 4, 2004

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R. Dickey Hamilton, Miller, Shakman & Hamilton, Joshua Sachs (argued), Office of the State Appellate Defender, Chicago, IL, for Petitioner-Appellee.

Peter Fischer (argued), Office of the Cook County State's Attorney, Sally L. Dilgart, Office of the Attorney, Criminal Appeals Division, Chicago, IL, for Respondent-Appellant.

Before BAUER, RIPPLE, and KANNE, Circuit Judges.

KANNE, Circuit Judge.

Floyd Richardson was convicted by an Illinois state court jury for the armed robbery of Twin Foods and Liquors and the murder of store clerk George Vrabel. In 1984, he was sentenced to death for these crimes. 1 Since that time, he unsuccessfully worked his way through the appeal and post-conviction review process in Illinois. He then filed a habeas corpus petition in federal district court and an evidentiary hearing was held in August 2002. The district court granted Richardson's petition for a writ of habeas corpus, finding that his conviction was tainted by intentional deception on the part of the prosecution. We, however, find that Richardson did not meet his burden of proving prejudice and, therefore, we reverse the decision of the district court and vacate the grant of the writ.

I. History

Twin Foods and Liquors is a convenience store located in Chicago. On April 1, 1980, at about 10:00 P.M., the store was robbed and a clerk, George Vrabel, was fatally shot. In the early morning of April 5, 1980, a tavern one mile away was also robbed and its owner was shot and wounded. Ballistics evidence linked the two crimes.

Richardson was arrested on May 4, 1982, as a suspect in an unrelated robbery. At that time, detectives reopened the investigation into Vrabel's murder. Detectives John Solecki and Joseph DiGiacomo put together a photo lineup which included Richardson's photo and showed it to witnesses of the two 1980 robberies. Several of the witnesses identified Richardson, and he was charged with murder.

A. Testimony at Trial

Ballistics evidence proved that the same gun was used in both the Twin Foods

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robbery and the tavern robbery. Ernest Warner, a Chicago Police Department firearms examiner, testified that he had examined bullets that were recovered from the Twin Foods location and from the tavern. He explained that in order to determine whether two different bullets were fired from the same gun, he uses class characteristics common to all guns produced by the same manufacturer and individual characteristics unique to each gun. He concluded that the same gun fired the bullets recovered from the sites of both robberies. The murder weapon, however, was never recovered.

1. Witnesses of the Twin Foods Robbery

Shirley Bowden was working as a cashier at Twin Foods and Liquors the night of the robbery. At about 10:00 P.M., she noticed a man standing near the liquor department who was "huddled up" in his coat even though it was not especially cold that night. The man walked to the liquor department and passed within four feet of Bowden. A few minutes later, Bowden heard a gunshot and the warning, "Stay down mother fucker. This is a stickup. Stay down." Bowden looked toward the liquor department and saw the man she had noticed earlier reaching over the counter and taking money from the register. After she heard a second shot, the robber ran through the store and out the front door, passing Bowden as he did so. Bowden ducked behind the counter when she saw him coming toward her but stood up after he exited to verify which direction he was running. Bowden called the police and then went to the liquor department to find Vrabel lying on the floor and bleeding.

At trial, Bowden identified Floyd Richardson as the man whom she saw commit the robbery and murder. She also testified that she had seen Richardson in the neighborhood prior to April 1. She had not viewed a lineup or photo array before trial.

Bonnie Williams was also working at Twin Foods on the night of the robbery. Williams testified that she ducked behind a counter when told that a robbery was occurring. When she heard the first shot, she stood up and looked toward the liquor department in time to see a man reaching behind the counter and taking money out of the register. The man ran out of the store past Williams and Bowden. Williams was able to see "his whole face" when it was "just a few feet" away.

Williams identified Richardson in open court and testified that she had selected his photograph from both black and white and color photo arrays that police officers had shown her in 1982. She said she had seen Richardson once before the robbery, but that she did not know him personally.

2. Witnesses of the Tavern Robbery

Thomas Fitzpatrick testified about the April 5 robbery which took place at his tavern about one mile from Twin Foods. At approximately 1:30 A.M., he was standing at the cash register of his tavern when a man entered waving a gun. The man said "this is a stickup" and jumped over the bar. Fitzpatrick tried to run away from the man and was shot in the back. He stated that he crawled to a hallway and lay on the floor face up. The assailant approached and stood over Fitzpatrick and demanded to know where the rest of the money was located. When Fitzpatrick said there was no more money, the robber left the store. Fitzpatrick testified that there was a fluorescent light right above him as he spoke to the robber and that "you could see very well." He also claimed that he was fully conscious during the encounter, even though he had been shot.

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In May 1982, Fitzpatrick tentatively identified Richardson as the gunman after viewing both black and white and color photographs. He viewed a lineup on October 5, 1982, and again identified Richardson as the man who shot him. At trial, he testified, "I'm just positive when I identified him in the lineup that that was the man that came after me and shot me." He further testified, "When I saw Floyd Richardson in the lineup, I knew it was him, positively. There was no doubt in my mind." Fitzpatrick also identified Richardson in court.

Ray Slagle was a patron in Fitzpatrick's tavern on the night of the robbery. When he heard shots, he stepped behind a partition and "watched everything that happened" from a distance of about ten feet. He saw a man reaching into the cash register. Slagle looked around the partition three or four times to observe the robber's actions. Slagle threw a chair at the robber as he ran toward the exit. Like Fitzpatrick, Slagle testified that the tavern was well lit.

Slagle also testified that he picked Richardson's photograph out of a police photo array and later identified him in a lineup. He identified Richardson as the robber at trial.

3. Defense Witnesses

The defense called Detective John Solecki, who testified that he had interviewed witnesses to the Vrabel shooting and then sent a flash message from the scene describing the suspect as having a "full, trimmed beard." He did not identify who had given him that description.

After examining Solecki, Richardson's attorney advised the trial judge that it was "possible" that he intended to call another witness. The judge then called a short recess. When trial resumed, the following...

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