Smith v. Mckee

Citation598 F.3d 374
Decision Date16 March 2010
Docket NumberNo. 09-1744.,09-1744.
PartiesJoseph SMITH, Petitioner-Appellant, v. Scott McKEE, Acting Warden,Respondent-Appellee.
CourtUnited States Courts of Appeals. United States Court of Appeals (7th Circuit)

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Patrick W. Blegen, Attorney (argued) Blegen & Garvey, Chicago, IL, for Petitioner-Appellant.

Eldad Malamuth, Attorney (argued), Office of the Attorney General, Chicago, IL for Respondent-Appellee.

Before POSNER, FLAUM and SYKES Circuit Judges.

FLAUM, Circuit Judge.

This case comes to us on appeal from a denial of a petition for habeas corpus. On March 9, 1995, an Illinois jury found petitioner, Joseph Smith, guilty of first-degree murder and attempted robbery. The trial court sentenced Smith to fifty-five years for the murder charge and fourteen years for the attempted armed robbery charge to run concurrently. Smith brings this habeas petition to challenge his conviction on three grounds: ineffective assistance of trial counsel, ineffective assistance of appellate counsel, and violation of his Sixth Amendment right to confront his accuser. The district court found that Smith hadprocedurally defaulted on all of these claims either because he did not raise them for an entire round of appellate review in the state courts or because the state court rested its decision on an independent state law ground. For the reasons set forth below, we affirm the district court's denial of the habeas corpus petition.

I. Background
A. Factual Background

During the late night hours of April 6 1992, Frank Miranda, the victim, and Dale Sramek went to 47th Street and Leamington, on the southside of Chicago, to buy crack cocaine. They had both been smoking crack cocaine for several hours already that evening. While on the corner of 47th Street and Leamington, Bobby Severson and Charles Queen joined them. Antoine Edwards, Smith's co-defendant, approached Miranda, Sramek, Severson, and Queen and offered to get drugs for them. After about twenty minutes, Edwards returned to the empty lot near' the corner of 47th and Leamington with another-individual carrying a shotgun. Severson, Queen and Miranda crossed the street into the empty lot where Edwards and the otherindividual were standing. According to Sramek, Miranda ran ahead because he wanted to be the first to get his drugs. As Miranda approached Edwards and the other individual, Edwards's accomplice pulled out a shotgun and demanded money. Miranda replied to the demand for-money by yelling "Fuck you" and walking away. As Miranda turned to walk away, Edwards's accomplice shot Miranda in the back.

After the shooting, Sramek and Queen remained at the scene to speak to the police. Severson left the scene before the police arrived. Sramek told the police that he could not make out the shooter's face but that he did see that the shooter was wearing a light jacket and yellow sweatpants. According to Queen's testimony at trial, Queen told the police that the shooter-was tall and wealing a long, dark-colored jacket and was not wearing yellow sweatpants. The police did not document Queen's statement. Shortly after the shooting, Severson came forward as a witness. A month passed with no furtherdevelopments in the case. Then, the police took Edwards into custody for a different robbery. Noticing a connection to the Miranda shooting, the police conducted a line-up in which Severson identified Edwards as the individual who offered to get the group drugs. After several conversations with Detective Michael Duf'frn and other-police officers, Edwards told the officers that Smith was his accomplice and brought Detective Duffin to Smith's house. Smith was not home, but Smith's older brother gave Detective Duffin a photograph of Smith and Detective Duffin left his business card. Detective Duffin returned to the police station and placed the photograph of Smith in a photo array. Severson positively identified Smith as the shooter. Shortly thereafter, Smith returned home and called Detective Duffin. Detective Duf'frn sent someone to pick up Smith. Once Smith arrived at the police station, Detective Duffin placed Smith in a line-up. Severson positively identified Smith again. Following the line-up, Smith gave a statement to Assistant State's Attorney James Sullivan and Detective Duffin admitting his involvement. This statement was not recorded. Smith did not reduce this statement to writing or sign anything acknowledging that he made such a statement.

At trial, the state's case against Smith mainly rested on the testimony of Sramek, Severson, and Queen, as well as the undocumented confession of Smith. Sramek testified consistently with his statement tothe police on the night of the shooting that he could not identify the shooter. Severson testified consistent with his identification of Smith in the photo array and lineup. Queen, despite never having identified Smith prior to trial, identified Smith during his direct-examination testimony as the man who shot Miranda. Smith's counsel objected to this identification as unduly suggestive because Smith was the only black male at the defense table. The court overruled this objection. The state also called Assistant State's Attorney James Sullivan and Detective Duffin to testify about Smith's statement at the time of arrest. Both Sullivan and Detective Duffin testified that Smith confessed to the shooting and that Smith refused to reduce the statement to writing. Sullivan testified that he made notes of Smith's statement. Detective Duffin also testified that Edwards lead him to Smith's house, but did not testify to the content of any conversations between himself and Edwards. The trial court severed Edwards's trial from Smith's trial. Edwards did not testify against Smith. Smith took the stand in his own defense and testified that he was home studying—he was seventeen and in high school at the time of the shooting—on the night of April 6, 1992. Smith also denied ever making a statement admitting to the shooting. Smith did not present any alibi witnesses.

During closing argument, the state made two comments relevant to Smith's habeas petition. The first comment related to Detective Duffin's testimony about his interview with Edwards. Although the state did not elicit the content of that interview from Detective Duffin during his testimony, the prosecutor repeatedly referred to the fact that Edwards led Detective Duffin to Smith's house during the closing argument. To cement the inference that Edwards had inculpated Smith in his conversation with Detective Duffin, the prosecutor made the following argument:

Antoine Edwards after being picked out of the lineup has a conversation, and that conversation is with Detective Duffin. And you learn fsic] about that conversation.... But first of all he has a conversation, and after that conversation it's very important to note that after that conversation, where does he go? Where does Antoine Edwards go? He goes with Detective Duffin, and he goes to the house of Antoine Crawford, the man we later learn was given the gun that was involved in the shooting, and he goes with Detective Duffin to the house of [Smith].

Smith's counsel did not object to this statement during the prosecutor's closing argument. Later, in the state's rebuttal closing, the prosecutor again broached the topic of Detective Duffin's conversation with Edwards, stating, "Is it Robert Severson who leads the police to this defendant? No, after a conversation with Antoine Edwards—." Smith objected to this argument mid-sentence. The court sustained the objection and instructed the jury to disregard the argument.

At the close of the trial, the court instructed the jury on law. Relevant to this habeas petition, the court gave Illinois Pattern Criminal Jury Instruction 3.15 when instructing the jurors on how they should w'eigh the identification testimony. At the time of Smith's trial, Jury Instruction 3.15 gave a five-factor analysis, but connected the five factors with "or, " implying that the jury needs to find the presence of one of the five factors to find the identification reliable.

During deliberations the jury sent a note to the court that it was deadlocked. The court instructed the jury to keep deliberating and sequestered the jurors over-night. The next day the jury came back with a guilty verdict. The trial court sentenced Smith to fifty-five years in prison.

B. Procedural Background

Smith promptly appealed his conviction. On direct appeal, Smith raised three claims: (1) his right to confront witnesses against him was violated by the introduction of Edwards's statements to the arresting officer and the prosecutor's references to these statements in closing argument; (2) the prosecutor made inflammatory arguments that reversed the presumption of innocence during closing argument; and (3) his sentence was excessive. The Illinois appellate court found that Smith waived his Confrontation Clause claim because he did not object to the testimony of Detective Duffin at trial nor did he address this issue in any post-trial motion. However, the court also found that this claim failed on the merits because Detective Duffin was explaining the course of his investigation and did not introduce Edwards's statements for their truth. The appellate court found that Smith had also waived this issue with regard to the prosecutor's statements in closing argument to which he did not object. The court went on to find that they would have been admissible even had Smith objected at trial because they explained the officer's course of conduct. The court cited to People v Gill, 264 Ill.App.3d 451, 202 Ill.Dec. 294 637 N.E.2d 1030, 1036 (1992), to support its finding that there was no error with regard to the prosecutor's statement to which Smith did object because the objection was timely sustained and the jury was ordered to disregard the statement. Finally, the court found that the introduction of these statements...

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