Guzzardo v. Bengston

• Decision Date: 13 March 1981
• Docket Number: No. 80-1696,80-1696
• Citation: 643 F.2d 1300
• Parties: John P. GUZZARDO, Petitioner-Appellant, v. Paul J. BENGSTON, Sheriff of Winnebago County, Illinois, and Honorable John W. Nielsen, Judge, 17th Judicial Circuit, Winnebago County, Illinois, Respondents.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1300

643 F.2d 1300

John P. GUZZARDO, Petitioner-Appellant, v. Paul J. BENGSTON, Sheriff of Winnebago County, Illinois, and Honorable John W. Nielsen, Judge, 17th Judicial

Circuit, Winnebago County, Illinois, Respondents.

No. 80-1696.

United States Court of Appeals, Seventh Circuit.

Argued Sept. 25, 1980.

Decided March 13, 1981.

Donald S. Eisenberg, Madison, Wis., for petitioner-appellant.

Jonathan Strauss, Chicago, Ill., for respondents.

Before SPRECHER and BAUER, Circuit Judges, and CAMPBELL, Senior District Judge. ^*

WILLIAM J. CAMPBELL, Senior District Judge.

John P. Guzzardo appeals from the District Court's entry of summary judgment on his petition for habeas corpus relief. Guzzardo's petition raised three Constitutional issues. He claims he was denied his right to confrontation under the Sixth and Fourteenth Amendments; that his trial counsel was so ineffective as to fall below the minimum standard of representation required under the Sixth Amendment; and that the statute upon which his conviction rests is unconstitutionally vague on its face. The District Court found petitioner's arguments meritless and entered summary judgment denying the writ. We affirm.

Petitioner was convicted of pandering, in violation of Illinois Rev.Stat. Ch. 38 § 11-16 (1975). That statute provides that anyone who "arranges or offers to arrange a situation in which a person may practice prostitution" commits pandering, a Class 4 felony. Rockford Police first suspected petitioner when a Ms. Robbins, a prostitution suspect, made certain remarks suggesting that prostitution was ongoing at the "Naughty Lady Lounge," which was owned by petitioner. These remarks were made to Detective Gulbranson who filed a routine report of the conversation.

Shortly thereafter Rockford Police were interviewing a Ms. Wooten regarding prostitution activities in the area. She implicated petitioner in organizing prostitution at a Rockford hotel. Police asked Wooten to meet with the petitioner at his bar and tape-record the conversation. Wooten agreed to do so. While the tape-recording proved inaudible, Wooten testified at trial that petitioner offered to provide her with a room at a local hotel to practice prostitution in return for a payment of $5.00 per customer.

Prior to trial, the trial court conducted a brief hearing to resolve certain evidentiary questions. The State sought to introduce Detective Gulbranson's testimony relating to his earlier conversation with Ms. Robbins regarding prostitution at the Naughty Lady Lounge. The Court permitted testimony solely on the fact that a conversation had taken place and a report filed, but not on the substance of the conversation.

At trial the following colloquy between the prosecutor and Gulbranson took place:

Question: An informal report about what?

Gulbranson: About her conversations.

Question: What was the purpose in leaving that report? (objection overruled)

Gulbranson: It was reference (to) prostitution inside the building.

Question: What was your purpose in leaving the report?

Gulbranson: To be followed up on.

Defense counsel immediately moved for a mistrial, which was denied. The Court did, however, instruct the jury to disregard the remark about prostitution.

Petitioner contends that Gulbranson's remark was, in effect, a hearsay summary of what Robbins had told him about the Naughty Lady Lounge. Since Robbins was not a witness at trial, there was no opportunity for defense counsel to cross-examine her. That petitioner argues, is a denial of his Sixth Amendment right to confront the witnesses against him.

Errors in State trials arising out of the admission of hearsay statements are not grounds for Federal habeas relief absent a showing of deprivation of a specific due process right. U. S. ex rel. Serrano v. Smith, 394 F.Supp. 391 (D.C.N.Y.1975). In Pointer v. Texas, 380 U.S. 400, 85 S.Ct. 1065, 13 L.Ed.2d 923 (1965), the Court held that the Sixth Amendment right to confrontation was a fundamental constitutional right, applicable to the states under the due process clause of the Fourteenth Amendment. 380 U.S. at 405, 85 S.Ct. at 1068. In Pointer the State introduced the transcript of a preliminary hearing into evidence. At that hearing the victim identified the defendant as the man who had robbed him. Pointer had not been represented by counsel at the hearing and made no attempt to cross-examine his accuser. The Court found that the introduction of the transcript denied Pointer of his right to confrontation and rendered the trial fundamentally unfair.

Petitioner relies on Pointer and Davis v. Alaska, 415 U.S. 308, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974), in support of the claim of denial of his right to confrontation. In Davis the trial court entered a protective order which prevented defense counsel from questioning the prosecution's key witness about his prior criminal record on the same charge as the defendant, and about the witness' incentive to fabricate a story to protect himself and gain favor with the police. The remark by Detective Gulbranson was hearsay and was not admissible evidence. Yet, it is hardly on the same level of prejudice as was found in Pointer or Davis. Even assuming the jury ignored the curative instruction and considered the remark, it would have only confirmed what could be reasonably inferred from Gulbranson's other testimony. Gulbranson testified that his conversation with Robbins prompted him to file a report for future investigation. Since there was direct evidence that petitioner was involved with prostitution, the jury could have reasonably inferred that Gulbranson's initial report made some form of reference to prostitution based on something said by Robbins. Petitioner was represented by counsel who was permitted to cross-examine Gulbranson regarding his reasons for filing his report. Due process does not require that the defendant be afforded an opportunity to cross-examine every person about whom the jury might draw an inference which is adverse to the defendant. Gulbranson's hearsay remark was not so prejudicial as to render the trial fundamentally unfair.

Petitioner also asserts a denial of his right to confrontation resulting from the prosecutor's opening statement. In his opening remarks the prosecutor summarized what he expected the witness Wooten to say on direct examination. He told the jury:

(Ms.) Wooten then will testify regarding her knowledge of the defendant, John Guzzardo. She will tell you how long she has known him. She will tell you how many times she had occasion to be in his company. And, she will tell you what has occurred as a result. She will make reference to an incident during the summer of 1976, where she, at the request of John Guzzardo, met him at (a Rockford Hotel) ... and received from him $20 to engage in an act of prostitution with a man at the and entered into an act of prostitution with a man at the ... Hotel." (Tr. 29-30)

Petitioner's counsel objected to these comments, and the trial judge instructed the jury not to consider opening statements as evidence. When the State attempted to elicit this testimony from Ms. Wooten, defense counsel objected to the testimony on the grounds that it was evidence of prior bad acts indicating only a propensity to commit crimes. The trial judge sustained the objection and did not permit further inquiry into the prior incident.

Petitioner claims that his right to confrontation was denied as a result of his counsel's inability to cross-examine Ms. Wooten about her earlier contact with petitioner. The jury knew about the incident due to the prosecutor's opening remark, yet defense counsel was unable to cross-examine Ms. Wooten regarding the incident as a result of the Court's evidentiary ruling during direct examination. Petitioner does not claim prosecutorial misconduct. Petitioner's argument on this point hinges entirely on the confrontation clause as an ingredient of due process.

In analyzing State Court proceedings by way of § 2254 review, Federal Courts must distinguish between that error which is so prejudicial as to deny the petitioner fundamental due process of law, and that which does not. See Bruton v. United States, 391 U.S. 123, 135, 88 S.Ct. 1620, 1627, 20 L.Ed.2d 476 (1968). The instant case falls into the latter category. The jury was instructed that it was to consider only the evidence introduced at trial, and that the remarks of counsel were not evidence. In Frazier v. Cupp, 394 U.S. 731, 89 S.Ct. 1420, 22 L.Ed.2d 684 (1969), the Court held that a similar summary of evidence in the State's opening statement did not so prejudice the jury as to deny petitioner a fair trial even when the State failed to elicit the summarized testimony during the course of the trial. Mr. Justice Marshall noted:

... here we have no more than an objective summary of evidence which the prosecutor reasonably expected to produce. Many things...