U.S. ex rel. Crist v. Lane

• Decision Date: 14 December 1984
• Docket Number: No. 83-3289,83-3289
• Citation: 745 F.2d 476
• Parties: UNITED STATES of America ex rel. Gilbert CRIST, Petitioner-Appellee, v. Michael LANE, Respondent-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 476

745 F.2d 476

UNITED STATES of America ex rel. Gilbert CRIST, Petitioner-Appellee, v. Michael LANE, Respondent-Appellant.

No. 83-3289.

United States Court of Appeals,

Seventh Circuit.

Argued Feb. 24, 1984.

Decided Oct. 1, 1984.

As Amended on Denial of Rehearing and Rehearing En Banc Dec. 14, 1984.

Hugh Stevens, Public Defender of Cook County, Chicago, Ill., for petitioner-appellee.

David E. Bindi, Asst. Atty. Gen., Chicago, Ill., for respondent-appellant.

Before WOOD and COFFEY, Circuit Judges, and HENLEY, Senior Circuit Judge. ^*

COFFEY, Circuit Judge.

This appeal arises from the granting of a writ of habeas corpus in which the petitioner alleges his convictions for attempted murder, armed robbery, and armed violence were improper because of questionable comments by the prosecutor during closing argument. We reverse the decision of the district court.

I.

On the afternoon of June 27, 1980, the victim, Anthony Russell, entered the hallway of a public housing project in Chicago, Illinois. He was carrying a bag of clothing belonging to his girlfriend, a resident in the building. While in the hallway Russell heard a voice say "stop, come here." He turned and saw a man about five feet away rapidly approaching him and pointing a small caliber pistol. As he ran toward the rear exit to escape, he heard four or five shots fired. After he left the building, he heard two more shots, one of which struck him in the back. He continued running for approximately 100 feet and fell. His assailant followed him out of the building, shouted something, fired twice in the air, and ran off carrying the bag of clothing.

Drew and Michael Lee, friends of Russell, witnessed the shooting. They came to Russell's aid, helped him into the building, and called the police. Based on his two encounters with the assailant in the hallway and outside the building, Russell described his assailant as a short, stocky black man, between five feet two and five feet five inches tall, 160 to 170 pounds, and 27 to 30 years of age.

A few days later, Russell received a phone call informing him of the whereabouts of his assailant and giving a description of his dress as well as the license number of his vehicle. Russell reported this information to the police. Officer Vucko went to the location in response to the information given in the phone call and saw a man fitting the description given by Russell. The individual was observed holding a jacket with the butt of a gun protruding out of the jacket pocket. Officer Vucko placed the man under arrest and seized the old, beat-up, seven shot .22 caliber pistol.

Russell and Lee were brought to the police station to view a lineup. The lineup consisted of four people: at least one other person was wearing clothing fitting the assailant's description, as well as two others who were approximately the same height and build as the assailant. ¹ Russell and Lee identified the petitioner, Gilbert Crist, as his assailant. Michael Lee, prior to his identification of the assailant, was advised that Russell had previously identified the petitioner. It should be pointed out that at the time Lee viewed the petitioner through a two-way mirror, the petitioner was the only person in the lineup. Motions to suppress the identification testimony of both Russell and Lee were filed. The petitioner does not contest the ruling of the Illinois state trial court that the lineup wherein Russell identified petitioner was not suggestive. The trial court did agree, however, to suppress Lee's identification.

The comments which are the subject of this appeal were made during closing argument at a trial in which Crist presented no evidence. Russell testified on behalf of the Government that the hallway in which he first encountered the assailant was well lit. He further testified that he "only got a quick glimpse" of his assailant in the hallway and observed him again for about ten seconds outside the building. He was able to clearly see a gun and described it as a .22 caliber pistol, kind of old looking, with paint chipped off the barrel. Crist's defense relied on attacking the credibility of the prosecution witness, Russell. The comments made during the closing argument are set out in the district court's opinion, in United States ex rel. Crist v. Lane, 577 F.Supp. 504 (N.D.Ill.1983).

In his direct appeal to the Illinois Appellate Court, the Petitioner argued, among other claims, ² that the Prosecutor improperly commented on the evidence, on the law, and on the defendant and his counsel thus depriving him of a fair trial. The Illinois Appellate Court found that the contents of the prosecutor's argument did not rise to the level of reversible error and also pointed out that any comments not timely objected to during trial were deemed waived.

In his original petition for habeas corpus, Crist alleged as the sole ground for relief that the prosecutor improperly commented on the petitioner's failure to testify. After the respondent filed a motion for summary judgment, Crist amended the petition asserting a due process claim based on eight separate objectionable comments ³ and filed a motion for summary judgment against the respondent.

Without specifically ruling on Crist's motion to amend, the district court granted the respondent's motion for summary judgment. 570 F.Supp. 999. The district court held that the prosecutor's comment that Russell's testimony was "uncontradicted and undenied" did not impair Crist's Fifth Amendment rights. According to the court, the comment did not focus the jury's attention on Crist's failure to testify because the evidence could just as easily have been addressed by two eyewitnesses that Crist did not call. Thus, the comment might very well have focused on the defendant's failure to present evidence in rebuttal rather than the defendant's failure to testify. C.f. United States v. Hastings, 461 U.S. 499, 103 U.S. 1974, 1984 n. 6, 76 L.Ed.2d 96 (1983) (Stevens, J., concurring). Secondly, the prosecutor's comment was a reply to a statement by defense counsel in which he argued "Gilbert Crist pled not guilty in this case. He didn't have to plead not guilty. He could have pled guilty but chose to plead not guilty and by that fact alone he's telling you that he did not commit these crimes." The district court held that the prosecutor's reply, "That was Mr. Fox [defense counsel] testifying. That was not the defendant testifying. That was Mr. Fox testifying," was permissible under the invited response doctrine. On these grounds, the district court concluded that Crist's Fifth Amendment rights had not been impaired and granted summary judgment against Crist.

After Crist filed a motion to reconsider, the district court filed a second opinion and discussed the merits of the due process claim. The district court found that in one comment the prosecutor implicitly accused defense counsel and the defendant of intimidating a witness. ⁴ The district court also found that other comments vouched for the credibility of Russell, the complaining witness, and the strength of the prosecutor's case. In addition, the district court found that the prosecutor's choice of language was unprofessional. Applying the test of United States v. Carter, 720 F.2d 941 (7th Cir.1983), the district court held that the statements were so inflammatory and prejudicial to the petitioner as to deprive him of a fair trial when viewed in the context of the trial as a whole because the State's case depended upon the identification by Russell while the prosecutor's comments, which villified Crist, also bolstered Russell's credibility. Even though the Illinois Appellate Court found that Crist had waived his objections to some of the comments, the district court held that Crist had not waived his grounds for appeal because: (1) it would be unreasonable to require more objections during the closing argument; (2) the comments had to be considered to evaluate the nature and tone of the whole rebuttal; and (3) under People v. Dailey, 51 Ill.2d 239, 243, 282 N.E.2d 129, 131 (1972), the Illinois courts "will consider prejudicial arguments made without objection of counsel if as a result thereof the parties litigant cannot receive a fair trial." The district court in its opinion also referred to People v. Shepard, 114 Ill.App.3d 598, 602-03, 70 Ill.Dec. 348, 449 N.E.2d 222, 224-25 (1983), in which the same prosecutor made similar remarks. ⁵ In that case, the Illinois court commented that the "statement by the prosecutor [was] reprehensible and uncalled for" and that "[p]erhaps some reports to the Attorney Registration and Disciplinary Commission are required to provide an antidote for this virulent condition." Apparently concluding that this prosecutor habitually made objectionable comments during closing argument, Judge Shadur found that the prosecutor had engaged in a willful and deliberate course of prosecutorial misconduct, filed a copy of his opinion with the Illinois Supreme Court Attorney Registration and Disciplinary Commission, and subsequently granted Crist's motion for summary judgment. We hold that Judge Shadur's ruling in granting Crist's motion for summary judgment was improper.

II.

Crist's Fifth Amendment argument may be disposed of summarily. It is well-established that principles of comity require a state prisoner to present his claims to the appropriate state tribunal before seeking relief in federal court. Rose v. Lundy, 455 U.S. 509, 102 S.Ct. 1198, 71 L.Ed.2d 379 (1982). A state prisoner may not for the first time bring a federal habeas corpus claim which was not previously brought on direct appeal in the state court absent a showing of cause and actual prejudice. United States ex rel. Spurlark v. Wolff, 699 F.2d 354, 361 (7th Cir.1983). The petitioner never argued ⁶ to the state court the issue that the prosecutor's comments violated his Fifth Amendment right to remain silent and thus this issue was waived under the...