Brumley v. Detella
| Citation | 83 F.3d 856 |
| Decision Date | 07 August 1996 |
| Docket Number | No. 95-2612,95-2612 |
| Parties | Vincent BRUMLEY, Petitioner-Appellee, v. George E. DETELLA, Warden of Stateville Correctional Center, Respondent-Appellant. |
| Court | United States Courts of Appeals. United States Court of Appeals (7th Circuit) |
Jerold S. Solovy, Ada S. Cooper (argued), Ruth A. Bahe-Jachna, Jenner & Block, Chicago, IL, for Petitioner-Appellee.
Michael A. Hurst (argued), Office of the Attorney General, Criminal Appeals Division, Chicago, IL, for Respondent-Appellant.
Before BAUER and RIPPLE, Circuit Judges, and SKINNER, District Judge. *
On June 13, 1986, Allen Cypin was kidnapped and taken by gunpoint to a currency exchange where he was forced to cash a check. Despite his pleas, he then was killed by a gunshot to the head. Four years later, Vincent Brumley was convicted in Cook County Circuit Court of the murder, armed robbery and aggravated kidnapping of Allen Cypin. After unsuccessful direct appeals in the Illinois state courts, Mr. Brumley filed a petition for writ of habeas corpus under 28 U.S.C. § 2254 in the United States District Court for the Northern District of Illinois. On June 23, 1995, the district court granted the writ on the ground that the evidence was insufficient as a matter of law to sustain Mr. Brumley's conviction. The Warden of Stateville Correctional Center, the appropriate party respondent, appeals the court's judgment. For the reasons set forth below, we reverse the judgment of the district court.
A. Facts
Sixteen months after the kidnapping, robbery and killing of Allen Cypin, three men were charged with the crimes and were tried separately. One of those individuals was Vincent Brumley. Mr. Brumley was convicted The evidence at trial established that the two other men charged, Steven Anderson and Lorne Gray, had carried out the criminal acts by holding a gun on Mr. Cypin and by forcing him into the car, into the currency exchange, and then out of the car to be killed execution-style. Mr. Cypin was found dead with a gunshot wound to the head; the police located his car a mile away. However, not until information was provided by witness Willie McCoy sixteen months later were the police able to gather sufficient evidence concerning these crimes. We set forth in the margin the more extensive factual summary provided by the state appellate court in People v. Brumley, 229 Ill.App.3d 16, 170 Ill.Dec. 771, 593 N.E.2d 660 (1992). 2
under the Illinois accountability rule 1 for his aid in facilitating the commission of those crimes. He was sentenced to concurrent terms of fifty-five years for murder, thirty years for armed robbery, and fifteen years for aggravated kidnapping
The evidence at trial that linked petitioner Brumley to the crimes came primarily from his two statements of October 23, 1987: the first, a statement to Detective Harrington in the police station interview room at 4:30 p.m.; and the second, a court-transcribed signed statement to Assistant State's Attorney Inge Fryklund made around 9:55 p.m.
Mr. Brumley described the events of June 13, 1986. He was walking down the street from his house around 9:30 p.m. Anderson and Gray drove up to him in a white sports car (a Pontiac Grand Am) and asked him to get in. Mr. Brumley got into the back seat of the car. Also in the back seat was a white man sitting behind the driver who appeared "like he was frantic, scared." Tr. 555. In his statement to Detective Harrington, Mr. Brumley described the man in the back seat as "balled up" on the floor of the car rather than sitting. He also stated in that statement that Anderson, who had a gun, said, "This white dude is going to give us some money." Tr. 523. After driving up Cicero and around the Rockwell projects, they stopped at a currency exchange. Gray, Anderson and the victim got out of the car and left the engine running; Mr. Brumley remained in the car. When the three men returned to the car about ten minutes later, Gray passed Anderson something, presumably money; Mr. Brumley stated that he did not see what was passed and did not receive any money. 3 They then drove to a lot along some railroad tracks in the area of Fillmore and Pulaski. Answering questions from the Assistant State's Attorney, Mr. Brumley continued:
Q. What did you do when you got there?
A. Well, us four got out of the car. They said, "Get out." And like I said, I stayed about 10 or 15 feet away from the car. I stood there, and was looking around, and then I heard a shot.
Q. Were you looking around to see if anybody else was coming?
A. Yes.
Q. What did you do when you heard the shot?
A. I turned around and looked, and Steve was standing over the man, and Lauren 4 was right there with him. Lauren was a little further, but Steve was standing over the guy.
Q. Steve was standing over the guy doing what?
A. He was standing over him looking at him.
Q. Where was the gun?
A. I guess he just put it away, and they ran.
Q. Did you see Steve holding the gun?
A. Yes, he had to.
Q. Did you see him holding the gun?
Q. After the shot was fired, what was the White guy doing?
A. He fell. He fell and hit the ground. That's when I ran. That's when I took off and ran.
Q. What did Lauren and Steve do?
A. They ran the other direction. They split up from each other. They separated.
Tr. 557-58. 5 Mr. Brumley signed the statement and the Assistant State's Attorney then asked petitioner if he was surprised to be arrested eighteen months after the events. According to her unrebutted testimony, he replied, "Yes, I thought we got away with it." Tr. 529.
Following a jury trial, on July 6, 1990, Mr. Brumley was convicted of murder, armed robbery and aggravated kidnapping in the Circuit Court of Cook County. His conviction was affirmed by the Illinois Appellate Court; his petition for leave to appeal to the Illinois Supreme Court was denied. Mr. Brumley's direct appeal alleged that the trial court erred in admitting evidence outside the record at the suppression and sentencing hearings and in refusing to give the defendant's proposed accountability instruction. It also challenged the State's use of improper statements during closing argument. Notably, it did not challenge the sufficiency of evidence against Mr. Brumley.
Mr. Brumley did not seek post-conviction relief in state court. His petition for habeas relief in federal court raised, for the first time, the claim that he was not proved guilty beyond a reasonable doubt of the crimes under a theory of accountability. The district court requested additional briefing on the issues of Mr. Brumley's procedural default and the merits of his claim. With new court-appointed counsel, Mr. Brumley argued that the evidence at trial was constitutionally insufficient 6 and that he had received ineffective assistance of appellate counsel in his direct appeals. Mr. Brumley's ineffective assistance of counsel claim was twofold: First, his appellate counsel did not challenge the sufficiency of the evidence presented against Mr. Brumley; second, when the direct appeals failed, he did not advise Mr. Brumley that he could bring state court post-conviction proceedings.
On June 23, 1995, the district court granted the petition, issued the writ and ordered Mr. Brumley's immediate release. 7 Brumley v. Godinez, No. 93 C 4817, 1995 WL 382492, at * 5 (N.D.Ill. June 23, 1995). The court, considering the evidence at trial against Mr. Brumley, was "of the view that the evidence shows nothing more than Brumley's presence at the scene, and under Illinois law this is insufficient for criminal accountability, even when coupled with flight." Id. at * 1 (citing People v. Reid, 136 Ill.2d 27, 143 Ill.Dec. 239, 255, 554 N.E.2d 174, 190 (1990)). According to the court, under Illinois case law some act that reflects more than mere presence and more than failure to assist the victim or flight from the scene is required.
[J]ust as a defendant's mere presence does not establish his intent to participate or assist in the crime, neither do any of the other factors, such as failure to assist, flight, or failure to report the crime. There must be something more, some affirmative act by the defendant by which he evidences an intent to facilitate the crime.
Id. at * 2 (citing Reid and People v. Tinoco, 185 Ill.App.3d 816, 133 Ill.Dec. 760, 541 N.E.2d 1198 (1989)). The court applied the analysis to this case:
Here, Brumley was merely present and did nothing to assist the other defendants.
As far as Brumley's conviction for kidnapping is concerned, there is no evidence that he was even present when the victim was kidnapped. The only evidence in the case is to the effect that the victim was already "balled up" on the floor of the car when Brumley entered the car and first saw him. Although Brumley was "present" at the robbery and the murder, it is perhaps more accurate to say that he was nearby, sitting in the car, when the money was obtained at the currency exchange and later when he heard a shot while one of the other defendants was standing over the victim in a vacant lot. There is no evidence that he did anything to assist either the robbery or the murder. Had he never entered the car that day, there is no reason to believe the robbery and the murder would not have occurred just as they did
The court concludes, therefore, that the failure of Brumley's appellate counsel to raise the insufficiency of the evidence on his appeal was a failure to raise a point that could well have resulted in the reversal of his conviction. In fact, this court is unable to see how the result could have been anything other than a reversal. Petitioner has satisfied the requirement that he show "a reasonable probability" that had he appealed the issue he would have won, Belford v. United States, 975 F.2d 310, 314 (7th Cir.1992), and this is a sufficient showing of prejudice under Wainwright v. Sykes, ...
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