575 F.3d 680 (7th Cir. 2009), 07-3160, Emerson v. Shaw

Docket Nº:07-3160.
Citation:575 F.3d 680
Opinion Judge:SYKES, Circuit Judge.
Party Name:Dennis EMERSON, Petitioner-Appellant, v. Frank SHAW, Warden, Respondent-Appellee.
Attorney:Charles M. Schiedel, Attorney (argued), Office of the State Appellate Defender, Springfield, IL, for Petitioner-Appellant. Leah C. Myers, Attorney (argued), Office of the Attorney General, Chicago, IL, for Respondent-Appellee.
Judge Panel:Before EASTERBROOK, Chief Judge, and SYKES and TINDER, Circuit Judges.
Case Date:July 30, 2009
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit
 
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Page 680

575 F.3d 680 (7th Cir. 2009)

Dennis EMERSON, Petitioner-Appellant,

v.

Frank SHAW, Warden, Respondent-Appellee.

No. 07-3160.

United States Court of Appeals, Seventh Circuit.

July 30, 2009

Argued Sept. 18, 2008.

Page 681

Charles M. Schiedel, Attorney (argued), Office of the State Appellate Defender, Springfield, IL, for Petitioner-Appellant.

Leah C. Myers, Attorney (argued), Office of the Attorney General, Chicago, IL, for Respondent-Appellee.

Before EASTERBROOK, Chief Judge, and SYKES and TINDER, Circuit Judges.

SYKES, Circuit Judge.

Dennis Emerson is serving a term of life imprisonment after a former Illinois governor

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commuted his death sentence, which stems from a murder he committed during an armed robbery. Emerson has petitioned for a writ of habeas corpus under 28 U.S.C. § 2254, claiming that his counsel at his sentencing hearing was ineffective and that he should be resentenced. He argues specifically that his counsel should have objected to the sentencing court's response to a question from the jury and also that his counsel should have offered the judge a more explicit answer to the jury's question. On postconviction review the Illinois Appellate Court rejected Emerson's arguments, and on habeas review the district court denied his petition. We affirm.

I. Background

In 1979 Dennis Emerson and Richard Jackson, his brother, robbed Robert Ray and Ray's girlfriend, Delinda Byrd, at gunpoint. Emerson and Jackson then tied the victims' hands and feet, and Emerson stabbed Ray twice in the chest with a pair of scissors. Ray survived by playing dead. According to Ray's testimony, Emerson then approached Byrd and brought his hands down upon her body in a stabbing motion. Because Ray was playing dead, he did not look directly at the strike and therefore did not actually see Emerson stab Byrd. Emerson and Jackson then left the room and set fire to the building as they fled. Ray escaped, but Byrd died from a stab wound. Emerson was charged with the murder of Byrd, attempted murder of Ray, armed robbery of both victims, and arson.

This case arrives here with a long and complicated history in state and federal courts, most of which is not relevant to this appeal.1 Emerson was convicted in Illinois state court of murder, attempted murder, and armed robbery, and he was sentenced to death. See People v. Emerson, 153 Ill.2d 100, 180 Ill.Dec. 46, 606 N.E.2d 1123 (1992), cert. denied, 507 U.S. 1037, 113 S.Ct. 1865, 123 L.Ed.2d 485 (1993). Emerson later petitioned for a writ of habeas corpus under 28 U.S.C. § 2254 based on a sentencing issue. The federal district court granted the petition and required resentencing. United States ex rel. Emerson v. Gramley, 883 F.Supp. 225 (N.D.Ill.1995), aff'd, 91 F.3d 898 (7th Cir.1996).

The Circuit Court of Cook County held a new sentencing hearing, which forms the basis of this appeal. The hearing focused on whether the State could prove a particular aggravating factor-murder in the course of armed robbery. Emerson's counsel maintained during closing argument that Emerson was ineligible for the death penalty because the State failed to prove that Emerson " actually struck the fatal blow that led to Delinda Byrd's death." The court instructed the jury in relevant part:

Before [Emerson] may be found eligible for a death sentence under the law, the State must prove the following propositions:

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First : That [Emerson] was 18 years old or older at the time of the commission of the murder ...; and

Second : That the following statutory aggravating factor exists:

The murdered person was killed in the course of another felony if

The murdered person was actually killed by [Emerson]; and

In performing the acts which caused the death of the murdered person, [Emerson] acted with the intent to kill the murdered person or with the knowledge that his acts created a strong probability of death or great bodily harm to the murdered person; and

The other felony was armed robbery.

If you find from your consideration of all the evidence that the first and second propositions have been proved beyond a reasonable doubt, then [Emerson] is eligible for a death sentence.

If you cannot unanimously find that both the first and second propositions have been proved beyond a reasonable doubt, then [Emerson] is not eligible for a death sentence.

During deliberations the jury sent a note to the judge asking, " Do we unconditionally accept the previous judgments of guilty for murder, attempted murder and two counts of armed robbery as fact when evaluating this case or can we apply reasonable doubt to the prior guilty verdicts?" The court asked the parties for input on how it should respond. Defense counsel suggested that the jury be instructed as follows: " You are required to deliberate solely based on the evidence you have heard in this case in accordance with my instructions." The State proposed: " You have evidence before you that [Emerson] has been convicted of armed robbery, attempted murder and murder. You are to consider that evidence in the eligibility phase." The judge instead instructed the jury: " You have received the evidence and jury instructions. Please continue to deliberate." Neither side objected to this instruction. After further deliberation, the jury returned a finding that Emerson was eligible for the death penalty, and the court imposed the death sentence.

On direct appeal Emerson, represented by his sentencing counsel, argued that the sentencing court erred by not answering the jury's question. He claimed that there was a " strong likelihood" that " the jury failed to make its own determination at eligibility as to whether defendant had actually killed Byrd because it assumed that this issue had already been determined at trial." People v. Emerson, 189 Ill.2d 436, 245 Ill.Dec. 49, 727 N.E.2d 302, 333 (2000). Affirming Emerson's death sentence, the Supreme Court of Illinois held that Emerson waived this argument by failing to object to the court's response or offer a substantively different proposal. Specifically, the supreme court stated, " [W]e are unable to discern any significant difference between the answer suggested by defense counsel and the answer the circuit court...

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