U.S. ex rel. Adkins v. Greer

• Decision Date: 27 May 1986
• Docket Number: No. 84-2641,84-2641
• Citation: 791 F.2d 590
• Parties: 20 Fed. R. Evid. Serv. 1010 UNITED STATES of America, ex rel. William ADKINS, Petitioner-Appellant, v. James GREER and Attorney General of Illinois, Respondents-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 590

791 F.2d 590

20 Fed. R. Evid. Serv. 1010

UNITED STATES of America, ex rel. William ADKINS, Petitioner-Appellant, v. James GREER and Attorney General of Illinois, Respondents-Appellees.

No. 84-2641.

United States Court of Appeals, Seventh Circuit.

Argued Jan. 14, 1986.

Decided May 27, 1986.

Alvin M. Binder, Binder Milner & Keyes, Jackson, Miss., for petitioner-appellant.

Mark L. Rotert, Asst. U.S. Atty., East St. Louis, Ill., for respondents-appellees.

Before CUDAHY, COFFEY and FLAUM, Circuit Judges.

CUDAHY, Circuit Judge.

William Adkins appeals from the district court's denial of his petition for a writ of habeas corpus. He argues that the state trial judge should not have ruled that inculpatory statements obtained by police in violation of Adkins' constitutional rights were admissible to impeach his testimony at trial. He also asserts that the prosecutor's closing argument violated his privilege against self-incrimination by calling attention to his failure to testify. We affirm.

I.

William Adkins was arrested for murder and robbery on June 14, 1978. Prior to the arrest he had twice voluntarily spoken with the police about the murder, once promising to go to the police station for questioning. After his arrest and while on the way to the police station, the police asked Adkins why he had not come to the police station as promised. He responded that his wife had just served him with divorce papers. He was not advised of his Miranda rights before this questioning en route.

At the police station Adkins was questioned by Officer Doty, one of the arresting officers. He still had not been given his Miranda rights. According to Adkins, he was asked whether he killed the victim and whether he knew who did. He testified at the suppression hearing that he answered "no" to these questions. Doty also asked about Adkins' wife. He became highly upset and emotional, and the interview ended. Adkins then met with Assistant State's Attorney Sabbatini, who read him his Miranda rights for the first time. He responded by saying, "my name is William Adkins, my attorney's name is Leonard Karlin," and he showed Sabbatini Karlin's business card. When Sabbatini asked whether he wished to talk, Adkins responded in the same manner. The questioning ended and Adkins was sent to the lockup.

While in his cell the night of June 14 Adkins, "upset at being locked up for a murder I didn't do, and my family problems," Trial Transcript at 291, took off his shirt and jacket and set them on fire. The fire was put out and Adkins was transferred to a new cell. In the new cell, Adkins tried to hang himself with his tee shirt. Adkins testified at the suppression hearing that he was then sent to the women's lockup (although he saw no women there) and left without his clothes for one or two hours; a prison official testified that under these circumstances prisoners are provided paper smocks.

Adkins was then transferred to still another cell and his clothes returned. At this point, he was seen hitting his head against the bars of the cell. He also made a telephone call to his lawyer, who advised him "to keep [his] mouth shut." Tr. at 299. Three different pairs of police officers passed by his cell and questioned him: he said nothing to the first; denied the murder to the second; the third only asked him the basis of his arrest. The district court, in reviewing the evidence, stated that "[t]he record reveals that no sustained questioning occurred on the night of June 14 ... [nor was] Adkins ... kept up late or questioned vigorously or over long periods." United States ex rel. Adkins v. Greer, No. 83-C-1610 (N.D.Ill. Aug. 22, 1984), at 10. ¹

The next morning, June 15, Adkins was questioned for about half an hour by Officer Johnson, the other arresting officer. Adkins' and Johnson's testimony conflict as to whether Adkins was again read his Miranda rights. Adkins testified that when Johnson started talking about Adkins' wife he became upset. When Johnson asked him about a fight the couple had had six weeks earlier, during which Adkins allegedly stabbed her with scissors, Adkins became "extremely upset" and started "crying and breathing very hard." Tr. at 196. Johnson asked Adkins whether he wanted to see his wife. Adkins testified that "I told him what was the catch to it, and he told me he would call her down here and let me talk to her if I cooperated with him...." Tr. at 311.

Later in this conversation, which lasted between fifteen and thirty minutes, Adkins was asked about Darlene Cornelius, the murder victim. According to Johnson, Adkins said, "I didn't mean to kill that girl." After he made this inculpatory statement Adkins, claiming that Johnson was putting words in his mouth, began choking himself with his hands. Adkins then showed Johnson his attorney's card and asked him to call Karlin.

Later that morning Adkins spoke with Assistant State's Attorney Simpkin. When Simpkin entered the room Adkins showed him Karlin's card and said, "That's my lawyer's card and I would like for him to be here." Tr. 319.

Before Adkins' trial, his attorney moved to suppress the inculpatory statement made to Officer Johnson. The trial court found that Adkins' Sixth Amendment right to counsel had been violated ² and ordered the statement suppressed. Adkins then moved in limine for an order barring the state from introducing the statement for any reason, should Adkins elect to take the stand. The trial court determined that the statement was freely and voluntarily given and thus ruled that the state could use it for impeachment purposes.

After a jury trial, at which he did not testify, Adkins was found guilty and sentenced to concurrent terms of seventy years for murder and sixty years for armed robbery. The Illinois Appellate Court affirmed the convictions in People v. Adkins, 105 Ill.App.3d 1201, 64 Ill.Dec. 449, 439 N.E.2d 1114 (1982). In particular, the appellate court evaluated the factual record and held that Adkins was not "subjected to such coercion as to overcome his will and to render his statements involuntary under constitutional precepts." Id. at 7.

Appearing pro se, Adkins sought a writ of habeas corpus from the district court for the Northern District of Illinois. There, Adkins argued (1) that his statement was involuntary and could not be used for impeachment purposes; (2) that the inculpatory statements were made after questioning pursued in disregard of his request for a lawyer and that statements so obtained are not admissible for impeachment purposes; and (3) that he had understood the trial judge's ruling to mean that if he were to testify the statement could be read to the jury regardless of its impeachment value and that this had chilled his right to testify in his own behalf. On a motion for summary judgment, the district court ruled (1) that the inculpatory statement was voluntary; (2) that the statement was therefore admissible for impeachment purposes under Harris v. New York, 401 U.S. 222, 91 S.Ct. 643, 28 L.Ed.2d 1 (1971); and (3) that the trial court's ruling on limited admissibility was proper and not misleading. Adkins appeals only the district court's second ruling, the admissibility for impeachment purposes of his inculpatory statement. Before we reach this issue, however, we must address a threshold argument advanced by the State.

A.

The State contends that Adkins is not entitled to review of the state court's in limine ruling because he elected not to testify and therefore no impeachment was attempted. It argues that if the statement was not in evidence Adkins was not injured by it and that it is mere speculation that Adkins would have taken the stand in the absence of an adverse ruling on the admissibility of his inculpatory statement. The arguments advanced are very similar to those made in New Jersey v. Portash, 440 U.S. 450, 99 S.Ct. 1292, 59 L.Ed.2d 501 (1979), in which the Supreme Court held that impeachment by prior statements made to a grand jury under a grant of immunity would violate the defendant's Fifth Amendment right not to be compelled to incriminate himself. The New Jersey trial court had ruled in limine that the defendant could be so impeached, and the defendant did not testify. The Supreme Court found that the merits of Portash's appeal could be reached because the New Jersey appellate court had considered the merits properly before it, and federal law did not prohibit New Jersey from following this procedure. Id. at 454-56, 99 S.Ct. at 1294-95. Here, too, the Illinois Appellate Court found this question to be properly before it, asking whether "the threat to use the statement for impeachment purposes, result[ing] in his failure to testify, deprived him of a fair trial." People v. Adkins, 105 Ill.App.3d 1201, 64 Ill.Dec. 449, 439 N.E.2d 1114 (1982), at 2. Similarly, although the defendant did not testify, in People v. Washington, 90 Ill.App.3d 631, 45 Ill.Dec. 837, 413 N.E.2d 170 (1980), cert. denied, 454 U.S. 846, 102 S.Ct. 162, 70 L.Ed.2d 132 (1981), the Illinois Appellate Court heard the argument that the threat of using an allegedly inadmissible statement deprived him of a fair trial. There the court accepted an affidavit from the defendant stating why he did not testify. Id., 45 Ill.Dec. at 633, 413 N.E.2d at 172. Thus, "federal law does not insist" that Illinois erred in reaching the merits of Adkins' claim despite the fact that he did not testify. Portash, 440 U.S. at 456, 99 S.Ct. at 1295. Cf. Brooks v. Tennessee, 406 U.S. 605, 611 & n. 6, 92 S.Ct. 1891, 1894 & n. 6, 32 L.Ed.2d 358 (1972) (Tennessee statute may violate the right against self-incrimination although defendant never took the stand because it "imposed a penalty for petitioner's initial silence, and that penalty constitutes the infringement of the right.").

Despite the State's contention, none of this is altered by United States v. Luce, 469 U.S. 38, 105 S.Ct. 460, 83 L.Ed.2d 443 (1984). In Luce, a defendant on...