Bae v. Peters

• Decision Date: 09 December 1991
• Docket Number: No. 90-2695,90-2695
• Parties: Jang Han BAE, Petitioner-Appellant, v. Howard PETERS, Warden, Respondent-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 469

950 F.2d 469

Jang Han BAE, Petitioner-Appellant, v. Howard PETERS, Warden, Respondent-Appellee.

No. 90-2695.

United States Court of Appeals Seventh Circuit.

Argued April 19, 1991.

Decided Dec. 9, 1991.

Julius L. Echeles, Chicago, Ill. (argued), for petitioner-appellant.

Arleen C. Anderson, Asst. Atty. Gen., Chicago, Ill. (argued), for respondent-appellee.

Before EASTERBROOK, MANION and KANNE, Circuit Judges.

MANION, Circuit Judge.

Early in the morning of February 1, 1985, a two-story building at 2847 North Milwaukee Avenue in Chicago was destroyed by fire. Three firemen perished while fighting the blaze. The building's first floor housed Vicstar Electronics, a consumer electronics store. Jang Han Bae, one of Vicstar's owners, was convicted of two counts of arson and three counts of murder in Illinois state court. After exhausting his state remedies, Bae filed a petition for habeas corpus in federal court. 28 U.S.C. § 2254. The district court denied the writ without holding an evidentiary hearing. Bae appeals, and we affirm.

I.

The following facts, taken in the light most favorable to the state, are drawn principally from the Appellate Court of Illinois' opinion in Bae's direct appeal. See People v. Bae, 176 Ill.App.3d 1065, 126 Ill.Dec. 304, 531 N.E.2d 931 (1st Dist.1988). Bae came to the United States from Korea in 1975 to further his education and, as is characteristic of many immigrants, generally to pursue the "American dream." After receiving his Master's degree in accounting from Roosevelt University in Chicago, Bae worked as a financial manager for a Chicago-area business for several years. In 1982, Bae left that job to pursue his personal dream--to own his own business. Bae and another Korean, Ho Suo Lee, opened Vicstar in 1982 at a location on North Lincoln Avenue in Chicago. In 1983 they moved the business to the building on North Milwaukee Avenue.

Bae's dream soon became a nightmare. In 1983, Vicstar lost money. In 1984, Vicstar made less than $30,000 profit. But despite the small profit, bills were mounting and Vicstar's cash flow was precarious. In late January 1985, Vicstar owed $158,376 to the Korean Exchange Bank in Chicago and $58,000 to a distributor of electronic goods, and had bounced more than $50,000 worth of checks. Vicstar's inventory was also dwindling. A Vicstar creditor visited the store during the last week of January 1985 and noticed that the inventory was "down considerably." A frequent buyer from Vicstar visited the store on January 31 and noticed that the showroom inventory was depleted.

By mid-January 1985, Bae and Lee decided they had had enough and that it was time to get out of business. Unfortunately, the method they chose transformed the nightmare into an even worse reality. Bae and Lee decided to set the building on fire and use the proceeds from Vicstar's $250,000 insurance policy to pay their creditors. In a confession he gave to police several hours after the fire, Bae detailed the arson scheme and his activities the night before and the morning of the fire.

In mid-January, Lee asked another Korean man named Suk Kim if he would set the fire. Kim said he would; Lee and Bae agreed to pay Kim at least $3,000. They paid Kim $3,000 in cash, the money coming from two days' cash receipts from Vicstar.

Around noon on January 31, Kim called Bae and they agreed to set the fire that night. Kim arrived at the store between 8 and 8:30 p.m. (after Bae had sent his two employees home). Bae gave Kim a key to the store and told him how to set the burglar and fire alarms. Bae left at about 9:00. He drove around in his car for a short time and then went home.

Around midnight, Kim called Bae and told him that "if nothing happened, just go to the store [the next] morning as usual." Almost four hours later, Bae received a phone call from the company that monitored Vicstar's alarm system informing Bae that the alarm had gone off. About thirty minutes later, the same person called back and told Bae that the store across the street was on fire but that his store was fine. At about 6:00 a.m., Bae went to Vicstar and found (contrary to what his alarm company had told him) his building on fire.

The fire had devastating consequences. A family living in the second-floor apartment above Vicstar barely managed to escape death and injury by jumping to the roof of an adjacent building; the only possessions they were able to save were the clothes on their backs. Four Chicago firemen were not so lucky. The four had climbed to the building's roof to cut a hole to vent hot gasses so that other firemen could fight the fire from within the building. While the firemen were on the roof, the roof collapsed. Three of the firemen were plunged into the inferno below and burned to death. The fourth managed to escape falling into the building by jumping up and grabbing on to "something" (exactly what, he was not sure). However, the lower portion of his body was on fire and a fireball billowing up engulfed his face. (The heat was so intense it melted his helmet to his head.) He eventually made it to the coping of the roof, and then rolled onto an adjacent roof, where he kept rolling until he extinguished the flames on his body. Although he lived, he was badly burned and disfigured, and faced years of painful skin grafts.

At trial, there was no dispute that arson caused the fire. Investigators at the scene found plastic bottles containing isopropyl alcohol. The fire started when the bottles containing the alcohol were ignited. A search of Kim's garage turned up two cases of bottles of isopropyl alcohol. One case was shy six bottles. The bottles in the partially-empty case bore markings similar to the markings on the bottles found at the fire scene.

Besides turning up the isopropyl alcohol bottles, the search of Kim's garage and home also turned up boxes of electronic equipment from Vicstar. In his confession, Bae stated that he and Lee agreed to pay Kim "$3,000 at first." This implied that Kim received more than $3,000; the state's theory was that merchandise from Vicstar was the extra payment. Kim's home was not the only place the police found Vicstar merchandise. A search of Bae's home also turned up over thirty pieces of electronic equipment and at least ten pieces of photographic equipment from Vicstar. The state argued Bae removed this merchandise in anticipation of the fire.

Evidence at trial tended to show that the arson was an inside job. The building's front door was secured by two sets of iron-barred burglar gates. The back door was also secured by similar burglar gates. Bae admitted that on the night of the fire the store was securely locked up and that a person would have needed a key to enter. This coincided with the statements in Bae's confession that he let Kim into the building and that he gave Kim a key.

II.

Although the state introduced evidence to prove (among other things) the fire's origin and to connect Bae to Kim and Kim to the fire, the centerpiece of the state's case remained Bae's statements to the police. Bae argues that introducing his confession at trial violated his right to be free from compelled self incrimination.

Bae first talked to police at the scene of the fire. After a brief conversation with Detective Bruce McElrath, Bae agreed to go to a police station to take a polygraph test. He was not under arrest. While waiting to take the polygraph test Bae called an attorney who spoke to both him and McElrath. McElrath told the attorney that Bae was at the station to substantiate his story and take a polygraph test. The attorney told Bae to go ahead and take the test, and then told McElrath that Bae could take the test. He also told McElrath he would not be present for the test.

After Bae took the polygraph test, which took about two hours, Detective William Johnston told Bae he had flunked. Johnston then read Bae his Miranda rights and placed him under arrest. The police took Bae to another police station at about 3:15 p.m. where, after again being read his rights, he made a statement. Bae repeated this statement to an Assistant State's Attorney around 6:30 p.m., and repeated it again before a court reporter a short time later.

According to the police, Bae was read his Miranda rights before he made each statement. The police also testified that after being arrested, Bae never asked to speak to an attorney. Bae, on the other hand, testified that he repeatedly asked to speak to an attorney but that the police, and the Assistant State's Attorney to whom he also confessed, ignored his requests.

Bae filed a motion to suppress his statements and the trial court held a suppression hearing. At the same hearing, the judge heard evidence on and considered Kim's motion to suppress a confession he had made. Both Bae and Kim argued that their confessions were coerced and were made after police denied them the opportunity to speak to their attorneys. The police officers testified that neither Bae nor Kim asked for counsel after their arrests. The trial judge believed Kim and disbelieved the police officers' testimony about Kim, and granted his motion to suppress; however, he disbelieved Bae and believed the officers' testimony about Bae, and denied Bae's motion.

Bae raises two arguments to attack his confession's admissibility. First, he argues that he made his confession only after the police continued to interrogate him after he requested counsel. Second, he argues that in any event the circumstances surrounding his confession show that it was involuntary.

Bae's first argument is based on Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981). In Edwards, the Supreme Court held that "when an accused has invoked his right to have counsel present during custodial interrogation," the police must cease interrogating him and may not initiate further interrogation outside counsel's presence. Id. at 484-85, 101 S.Ct. at 1884-85. According to Bae, h...