Harris v. Reed

Decision Date22 February 1989
Docket NumberNo. 86-2032,86-2032
Citation894 F.2d 871
PartiesWarren Lee HARRIS, Petitioner-Appellant, v. Marvin REED, et al., Respondents-Appellees. . Remanded
CourtU.S. Court of Appeals — Seventh Circuit

E. King Poor and Kimball R. Anderson, Winston & Strawn, Chicago, Ill., for petitioner-appellant.

Neil F. Hartigan, Atty. Gen., Office of the Atty. Gen., Chicago, Ill., for respondent-appellee.

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

BAUER, Chief Judge.

Warren Lee Harris' appeal from the district court's order denying his petition for habeas corpus is before us on remand from the United States Supreme Court. Harris v. Reed, --- U.S. ----, 109 S.Ct. 1038, 103 L.Ed.2d 308 (1989). The issue that this court must address is whether Harris' state court conviction for murder was obtained in contravention of his sixth amendment right to effective assistance of counsel. Our independent review of the facts, which we specifically limit to those relating to petitioner's claims on appeal, reveals that there is a reasonable probability that the unprofessional errors committed by Harris' trial counsel affected the outcome of his trial. Accordingly, the district court's order denying Harris' petition is reversed and remanded with directions to issue the writ.

I. Factual Background

At approximately 9:30 p.m. on July 9, 1977, Ernest Howard was shot while on the west side of South Christiana Street near the intersection of 16th Street. 2 Upon being shot, Howard called out to Maurice Williams, a friend of his who was across the street. Before police arrived, Howard told Williams that he had been robbed and shot and that he knew the names of his assailants. Howard later died at Mt. Sinai Hospital without naming the assailants.

Police investigated the murder and prepared a report containing the names of a number of individuals who saw a man flee from the direction of the shooting. Leroy Carter was the first of these witnesses. Carter lived on Christiana Street near the location of the shooting. He told police that on the night of the shooting, he was sitting in his car in front of his house when he heard the shot and saw a black male running in a northeasterly direction away from the intersection of Christiana and 16th into a nearby playground. At a police lineup three days later, Carter identified Melvin McWhorter as the man he saw fleeing from the incident.

The police also interviewed Alice Riles, another Christiana Street resident who stated that she was sitting on the front porch of her house when she heard the shot. She then saw two men flee in a northeasterly direction away from the scene into a vacant lot near the playground. Riles also independently identified McWhorter in the lineup as one of the men she saw.

Based upon the statements of these witnesses, the police questioned McWhorter, who denied both being in the area and any knowledge of the shooting. When police questioned him again the next day, he admitted that he had originally lied. He stated that he had been near Christiana and 16th on the night of the murder in an attempt to buy drugs. He said he heard a shot that night and then saw Warren Harris walk southbound on Christiana away from the scene and turn west on 16th Street.

McWhorter was the prime suspect in the shooting until approximately a month later when the police received a tip from an unidentified informant that Antonio Slater had witnessed the incident. Police then interviewed Slater, who told them that on the night of the incident, he was driving down 16th Street and turned onto Christiana. He stated that while he was on 16th Street, a car in front of him caused him to slow down, at which time he heard the shot and saw Harris run toward a light colored Buick, get inside, and drive past his vehicle. 3 After reviewing police photographs, Slater identified a picture of Harris as the man he saw enter the Buick and drive away. The police arrested Harris later that day and he was subsequently charged with murder.

Todd Musberger, a Cook County Public Defender, was appointed to represent Harris. 4 Harris' trial began on December 15, 1977, and lasted three days. At trial, Musberger was assisted by Kathryn Kuhlen, who gave the opening statement for defendant. During the opening, Kuhlen emphasized that Melvin McWhorter would figure quite prominently in the trial. She assured the jury that they would hear evidence supporting an account of the shooting different from that offered by the prosecution:

To understand the importance of Mr. McWhorter and of Antonio Slater, it is necessary to give you a brief review of the police investigation in this case. During the days immediately following the shooting of Ernest Howard the police talked to a number of people who were present in the area of 16th and Christiana, people who lived there and also to relatives of Ernest Howard. They learned that Ernest Howard was a narcotics dealer who sold in that neighborhood at 16th and Christiana.

* * * * * *

We believe the evidence will show that the police learned that two persons immediately after the shooting were seen running away from the scene of the shooting in a northeast direction through a lot on the north side of Christiana. Through further investigation, the police learned that one of those individuals was Melvin McWhorter. They had Melvin McWhorter come to Area Four Police Headquarters, advised him of his rights and interrogated him.

At that time, he denied knowing anything about the shooting. They then placed McWhorter in a lineup and two persons identified him as one of the individuals they had seen running away from the scene immediately after the shooting.

The police then confront Mr. McWhorter again and Mr. McWhorter changes his story and says what he said before was a lie, and then tells the police that he had gone into that neighborhood to purchase narcotics, that he was across the street at the time of the shooting but that he didn't see the shooting itself.

At this point Melvin McWhorter is a chief suspect in the focus of the police investigation, and it is at this point, some six weeks after the shooting, that the name Antonio Slater appears before the police. This is a man who, mind you, who has never come forward to the police in six weeks after the shooting, it is also a person who none of the people interviewed by the police at the scene had named to the police as one of the men who had been in that area and who possibly had witnessed the shooting. Antonio Slater gives this name to police and at that point the focus of the investigation shifts away from Melvin McWhorter.

At trial, the prosecution proceeded to present a total of six witnesses. The first of these was Howard's father, who testified that he identified his son's body at the morgue. Maurice Williams, the second witness, testified about attempting to assist Howard at the scene. Consistent with his account given to the police investigating the incident, Williams also testified that he recognized McWhorter in the crowd that gathered subsequent to the shooting. Officer Michello was the prosecution's third witness. He testified about the events he witnessed upon arriving at the scene of the shooting. The prosecution also called two witnesses who testified that Howard died as a result of a gun shot wound.

Antonio Slater was the prosecution's only witness whose testimony linked Harris to the shooting. At trial, Slater's testimony about his route prior to the incident was critically different from the account he gave to the police. This time, Slater testified that he was traveling southbound on Christiana past 15th street when he arrived upon the scene. He said that he heard a gun shot and saw a man push a victim to the ground approximately 12 feet in front of the car blocking his progress on Christiana. He then watched the assailant run to this car, turn to face Slater with his pistol drawn, enter the car and drive off. Slater stated that under the street lights and the headlights of his car, he was able to identify the assailant as Harris. He claimed that he was familiar with Harris because he had seen him approximately two years earlier at a nearby pool hall.

In his cross-examination of Slater, Musberger asked the witness why he waited for six weeks before talking to police. Musberger also questioned Slater about the discrepancy between his trial testimony and his earlier account of the evening given to police. When Slater denied the earlier version, Musberger dropped the issue. At the end of the day, the prosecution rested.

When the trial reconvened on the following morning, December 21, 1977, Musberger informed the court that he would not put on any witnesses and that he was resting on behalf of the defense. As part of this decision, Musberger chose not to enter a stipulation prepared with the prosecution. The stipulation stated that if Officer Shine were called to testify, he would confirm that Slater's earlier version was that he had been traveling "down" 16th Street and turned onto Christiana when he witnessed the incident. In his closing, Musberger did highlight the differences between Slater's two accounts. Nonetheless, the jury returned a guilty verdict that day after the case was submitted to it. Harris was subsequently sentenced to a period of 50 to 100 years in a state penitentiary.

II. Procedural History

The procedural history of this case before the Illinois courts is thoroughly reviewed in the District Court's published order denying, in part, respondent's motion for summary judgment on Harris' petition for habeas corpus. United States ex rel. Harris v. Reed, 608 F.Supp. 1369, 1373-75 (N.D.Ill.1985). Briefly, Harris was represented by an Illinois Appellate Defender in his direct appeal. The Appellate Defender raised only one claim on appeal: the prosecution failed to establish Harris' guilt beyond a reasonable doubt....

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