811 F.2d 1166 (7th Cir. 1987), 86-1393, United States ex rel. Link v. Lane

Docket Nº:86-1393.
Citation:811 F.2d 1166
Party Name:UNITED STATES of America ex rel. Mitchell LINK and Karen Link, Petitioners- Appellants, v. Michael LANE, Director of the Illinois Department of Corrections, Respondent- Appellee.
Case Date:February 18, 1987
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit
 
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Page 1166

811 F.2d 1166 (7th Cir. 1987)

UNITED STATES of America ex rel. Mitchell LINK and Karen

Link, Petitioners- Appellants,

v.

Michael LANE, Director of the Illinois Department of

Corrections, Respondent- Appellee.

No. 86-1393.

United States Court of Appeals, Seventh Circuit

February 18, 1987

Argued Nov. 4, 1986.

Page 1167

Ellen R. Domph, Chicago, Ill., for petitioners-appellants.

Jack Donatelli, Office of Ill., Atty. Gen., Chicago, Ill., for respondent-appellee.

Before BAUER, Chief Judge, and CUDAHY and RIPPLE, Circuit Judges.

BAUER, Chief Judge.

Kenneth Glabe was murdered in a remote rural area in Illinois in 1971. Nine years later, a jury convicted Glabe's ex-wife, Karen Glabe Link and her second husband, Mitchell Link, of the murder. The Links were both sentenced to 35-45 years imprisonment. The instant petition for habeas corpus relief raises the following issues: (1) whether the state court erred in admitting the testimony of Haig's former girlfriend, Pelletiere; (2) whether the state court erred in admitting evidence of certain non-verbal reactions of Karen Link, and (3) whether trial and appellate counsel were ineffective. For the reasons

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which follow, we affirm the denial of the Links' petition for habeas corpus.

I.

The linchpin of the state's case against the Links was the testimony of Preston Haig who was hired by Mitchell Link to perform the murder. Haig testified that Mitchell Link was looking for someone to hire to kill his girlfriend's husband. Haig agreed to do the job. Haig and Mitchell Link then planned the murder whereby Karen Glabe (Link) would feign illness while on a deserted road, while Haig would hide at the designated location prepared to knock Karen Glabe unconscious and murder her husband.

Just prior to the murder, Haig told his girlfriend, Jeanine Pelletiere, that he was hired by two lovers to kill the husband of one of the lovers in a remote area. Pelletiere went to the States Attorney's Office with the information. After the murder, Haig realized that Pelletiere had gone to the authorities and he left town. Haig was picked up in New Mexico several years later and waived extradition to Illinois. Haig pled guilty to the murder of Kenneth Glabe and was sentenced to 14-28 years incarceration in exchange for his plea and his truthful testimony at the Links' trial. The Links were convicted and the Illinois Appellate Court affirmed. People v. Link, 100 Ill.App.3d 1000, 56 Ill.Dec. 394, 427 N.E.2d 589 (1981). The Links sought and were denied state post-conviction relief.

THE CONVERSATION WITH PELLETIERE

Haig testified on direct examination that he had discussed the murder plan, prior to its commission, with his girlfriend Jeanine Pelletiere. Pelletiere also testified to the conversation, corroborating Haig's general testimony as to the particulars of the crime and the fact that it had been committed pursuant to "contract." Haig and Pelletiere were allowed to testify to the conversation over the hearsay objection of defense counsel. The trial court ruled that the conversation was admissible as non-hearsay attributable to a co-conspirator. The Illinois Appellate Court disagreed, finding that the conversation was not admissible since it was not "in furtherance of the conspiracy." People v. Link, 100 Ill.App.3d 1000, 1006, 56 Ill.Dec. 394, 398, 427 N.E.2d 589, 593 (1981). The appellate court affirmed the trial court's ruling, however, on the alternate ground that the conversation could have been admitted as a prior consistent statement. The appellate court found that during the cross-examination of Haig, defense counsel implied that Haig had recently fabricated his testimony and that therefore, the conversation between Haig and Pelletiere was admissible as a prior consistent statement to rebut a charge of recent fabrication. Id. Petitioners do not challenge this ruling, except to the extent that the appellate court's affirmance on other grounds violated their rights to due process under the circumstances of this case.

Although an appellate court may affirm a trial court based on grounds not relied upon by the trial court (See, e.g., People v. Royse, 107 Ill.App.3d 326, 331, 63 Ill.Dec. 30, 35, 437 N.E.2d 679, 684 (1982), rev'd on other grounds, 99 Ill.2d 163, 75 Ill.Dec. 658, 457 N.E.2d 1217 (1983); Chicago Area Recycling Group v. Illinois Commerce Comm'n, 58 Ill.App.3d 769, 773, 16 Ill.Dec. 233, 237, 374 N.E.2d 1008, 1011 (1978)), petitioners claim that a denial of due process results when the basis of the appellate court's reasoning would not exist but for the erroneous ruling of the trial court. Petitioners argue that they would not have alleged recent fabrication in cross-examining Haig if the trial court had not erroneously ruled that it would let the conversation in as co-conspirator's statements. Petitioners' due process claim therefore rests on the proposition that if the trial court had not ruled the conversation...

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