U.S. ex rel. Link v. Lane

• Decision Date: 18 February 1987
• Docket Number: No. 86-1393,86-1393
• Parties: 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.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1166

811 F.2d 1166

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.

Argued Nov. 4, 1986.

Decided Feb. 18, 1987.

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 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 admissible as a co-conspirator's statement, defense counsel would have cross-examined Haig more narrowly--or perhaps not at all.

Petitioners assert that "[h]ad the trial judge correctly ruled that Haig's conversations with Pelletiere were not statements of a co-conspirator in furtherance of a conspiracy, defense counsel clearly aware of the recent fabrication rule, certainly would not have asked any questions suggesting recent fabrication." (Appellants' Brief at 10.) We find this assertion implausible and not supported by the record. At the close of the trial defense counsel presented the following statement to the court concerning his cross-examination of Haig:

The defense conducted their cross-examination based on [the court's ruling that the conversation would be admissible as a co-conspirator's statement] or that portion of evidentiary law which allows the introduction of prior consistent statements; therefore the witness Haig was never inquired of as to the fact that the sentence which he received was the minimum possible under the law at that time.

He was never questioned with respect to the fact that the statement given in 1979 contains in his handwriting "This statement is the truth, to the best of my knowledge," or "To the best of my knowledge this statement is true," words to that effect.

(Tr. 792-793) (emphasis added). Thus, defense counsel was well aware of the possibility that the conversation could come in as prior consistent statements and had structured his cross-examination of Haig to avoid the application of the recent fabrication rule to permit Pelletiere to testify as to the full conversation. The trial court ruled, however, that the cross examination had implied recent fabrication and this ruling is not challenged here. Moreover, on direct appeal, appellate defense counsel argued that Haig's cross-examination did not create the inference of recent fabrication. Rather than demonstrate that counsel would have acted differently if not for the erroneous ruling, the record shows that defense counsel would have done nothing differently.

Haig's testimony convicted petitioners. The case against the Links turned on whether the jury would believe Haig's story that Mitchell Link hired him to kill his girlfriend's husband and that the plot required the complicity of Karen Link. It is inconceivable to us that the defense would not have suggested recent fabrication to attack Haig's credibility. Petitioners do not allege a different defense tactic and we can think of none. While it is true that Haig testified to the conversation during his direct examination and before defense counsel had suggested recent fabrication, the evidence would have been presented to the jury in any case; the convoluted order of the testimony alone cannot support a claim that petitioners were denied due process of law. Therefore, we find no constitutional violation arising from the Illinois Appellate Court's affirmance on other grounds.

NON-VERBAL STATEMENTS OF KAREN LINK

At trial, Lake County Sheriff's Policeman Louis Harceg testified, without objection, that when he told Karen Glabe Link that Kenneth Glabe was alive, she was startled. Since Harceg knew at the time that Kenneth Glabe was in fact dead, Karen Link contends that his deliberate lie was designed to elicit an incriminating response and that the reaction was admitted into evidence in violation of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). Similarly, petitioner Karen Link objects to the trial court's admission of testimony that Karen Link showed no reaction when she was taken to the morgue just hours after the murder, and showed Kenneth Glabe's uncleaned corpse.

The district court found that petitioners had waived the arguments by failing to object to the testimony at trial. The failure to object at trial is a procedural default which precludes subsequent review unless the petitioner can show "cause" and "prejudice" for the default. Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977). Petitioner Karen Link contends that the district court erred in relying on defense counsel's waiver of the objection at trial, because the Illinois Appellate Court addressed the merits of petitioner's claim. A state may excuse a procedural default by addressing the claim on its merits. See, e.g., County Court of Ulster County v. Allen, 442 U.S. 140, 152-53, 99 S.Ct. 2213, 2222, 60 L.Ed.2d 777 (1979); United States ex rel. Merneigh v. Greer, 772 F.2d 322, 325-26 (7th Cir.1985). Here, however, both trial and appellate counsel for the defense failed to raise the issue, constituting a double procedural default. It was not until petitioners filed their state petition for post-conviction relief that the admission of Karen Glabe's non-verbal statements was questioned. Then, as now, the merits of the contention were addressed only to determine whether Karen Glabe had waived her right to present such claims and whether she was denied effective assistance of counsel. The State did not, therefore, excuse...