Britz v. Thieret

• Decision Date: 06 August 1991
• Docket Number: No. 90-3077,90-3077
• Citation: 940 F.2d 226
• Parties: John BRITZ, Petitioner-Appellant, v. James H. THIERET, Warden, Menard Correctional Center, and Roland W. Burris, Attorney General of the State of Illinois, * Respondents-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 226

940 F.2d 226

John BRITZ, Petitioner-Appellant, v. James H. THIERET, Warden, Menard Correctional Center, and Roland W. Burris, Attorney General of the State of Illinois, ^* Respondents-Appellees.

No. 90-3077.

United States Court of Appeals Seventh Circuit.

Argued April 8, 1991.

Decided Aug. 6, 1991.

Charles W. Hoffman (argued), Office of the State Appellate Defender, Chicago, Ill., for petitioner-appellant.

Nathan P. Maddox, Asst. Atty. Gen. (argued), Crim. Appeals Div., Springfield, Ill., for respondents-appellees.

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

BAUER, Chief Judge.

In the wee hours of the morning on June 9, 1979, Timothy Meisner pulled into a gas station in Springfield, Illinois. One of the front tires of his van needed air. He got out of the van, walked around front, and went to work on the tire. He popped off the hubcap and was bending down to plug in the air hose, when someone came up behind him. He may never have seen who that stranger was. From point blank range, the stranger fired a single .22 caliber bullet through Meisner's right shoulder, through his right lung and into his heart, killing him on the spot. After riffling through Meisner's billfold and taking his money, the stranger fled.

About five weeks later, the police arrested 19-year-old John Britz and charged him with Meisner's murder. An admitted PCP user, Britz made several, somewhat confused confessions (later recanted) to various youth crisis hotline workers and police officers. Also, Britz's appearance matched the composite sketch the police had put together from witness descriptions. This evidence was not enough, however--at least according to the state's attorney's office, which nolle prossed the case.

But Britz did not simply walk away; the police continued to investigate and gather evidence, including a .22 caliber slug taken from Britz's trailer. In September of 1982, Britz again was arrested and charged with Meisner's murder. With more evidence in hand, the state's attorney's office took Britz's case to trial in April of 1983. The jury found Britz guilty of murder, and he was sentenced to 25 years of imprisonment. The Illinois appellate court, however, reversed Britz's conviction and remanded for a new trial due to errors in the voir dire and the erroneous exclusion of some exculpatory evidence. People v. Britz, 128 Ill.App.3d 29, 83 Ill.Dec. 639, 470 N.E.2d 1059 (4th Dist.1984). The Illinois Supreme Court affirmed that reversal. People v. Britz, 112 Ill.2d 314, 97 Ill.Dec. 768, 493 N.E.2d 575 (1986).

Britz's case went to trial for a second time in May of 1987. This time, the trial court had to declare a mistrial because the jury was unable to reach a verdict. Eight months later, Britz's third trial began. The third time was the charm for the State: Britz was convicted and sentenced to 25 years, and the appellate court affirmed. See People v. Britz, 185 Ill.App.3d 191, 133 Ill.Dec. 423, 541 N.E.2d 505 (4th Dist.1989). In so doing, the appellate court rejected, among other arguments, Britz's contention that the trial court had committed reversible error by declining his requests for individual voir dire of each prospective juror outside the presence of the other prospective jurors. See id., 133 Ill.Dec. at 429, 541 N.E.2d at 511. Britz argued, before both the trial court and the appellate court, that such a voir dire was necessary to determine whether the prospective jurors had been exposed to pretrial publicity that mentioned that Britz previously had been tried and convicted for the same crime. The appellate court rejected Britz's contention: "The record establishes [that Britz] received a trial before a fair and impartial jury, and we, therefore, find no abuse of discretion in the court's voir dire procedure." Id. 133 Ill.Dec. at 430, 541 N.E.2d at 512.

Britz petitioned the appellate court for rehearing, which petition was denied. Britz then petitioned the Illinois Supreme Court for leave to appeal, again raising the voir dire argument. That petition, too, was denied. 128 Ill.2d 666, 139 Ill.Dec. 516, 548 N.E.2d 1072 (1989) (Table).

Figuring that his remedies in the Illinois courts were exhausted, Britz then filed in federal district court a habeas corpus petition pursuant to 28 U.S.C. Sec. 2254. The first issue we must address is whether Britz figured correctly; in other words, did he exhaust his state remedies as required by 28 U.S.C. Secs. 2254(b) & (c)? At first blush, it would appear that he did not, as he failed to take advantage of Illinois' post-conviction challenge opportunity. See Ill.Rev.Stat.1987, ch. 38, paras. 122-1 et seq. As it turns out, however, that failure was not fatal. Britz's claim in the instant federal habeas proceeding is that the voir dire conducted by the trial court violated his sixth amendment right to an impartial jury. Britz raised and argued this same claim on direct appeal; the appellate court rejected it on the merits, and the Illinois Supreme Court denied review. Had Britz filed a post-conviction petition under Illinois law, the Illinois courts would have strictly applied res judicata and refused to address his claim, see People v. Gaines, 105 Ill.2d 79, 87-88, 85 Ill.Dec. 269, 274, 473 N.E.2d 868, 874 (1984)--that is, unless Britz could have established that "fundamental fairness" required the court not to apply res judicata in his case (and there is no reason to believe that he could have). Thus, the filing of an Illinois post-conviction petition would have been futile. See Teague v. Lane, 489 U.S. 288, 297-98, 109 S.Ct. 1060, 1067-68, 103 L.Ed.2d 334 (1989); Reese v. Peters, 926 F.2d 668, 671 (7th Cir.1991). The exhaustion requirement for federal habeas review requires petitioners fairly to present the merits of their claims to the state courts; it does not require them to partake of futile gestures. See Castille v. Peoples, 489 U.S. 346, 349-51, 109 S.Ct. 1056, 1059-60, 103 L.Ed.2d 380 (1989). See also Mikel v. Thieret, 887 F.2d 733, 736 (7th Cir.1989) ("[I]t is usually unnecessary for those persons having taken a direct state court appeal to use [Illinois'] post-conviction remedy to satisfy the federal habeas exhaustion requirement.") (citations omitted). ¹

That behind us, we move to the substance of Britz's claim. To fully understand it, some additional background is required. Meisner's murder and Britz's multiple trials for that crime received fairly extensive coverage in the Springfield media. The local newspaper carried (by Britz's count) some 36 articles about the case. Most of the articles after 1983 mentioned that Britz already had been convicted of the crime and that his conviction had been reversed on appeal. In fact, one such article appeared on page 13 of the Springfield paper on January 19, 1988: the first day of jury selection in the third trial. Local radio and television stations also covered the case with some frequency, including a radio report at lunchtime on January 19th. That report, too, mentioned the fact that Britz previously had been convicted of the Meisner murder.

Citing this substantial pretrial publicity, Britz several times asked the trial court to question the prospective jurors concerning their prior knowledge of the case. Specifically, Britz wanted the court first to ask the entire panel whether any of them had heard about the case, and then individually take aside each prospective juror who said "yes" to determine whether he or she knew that Britz previously had been convicted of the same crime. It was Britz's position that any prospective juror who had heard of his prior conviction automatically should be excluded for cause. Britz also argued that he needed to know which prospective jurors were aware of his prior conviction in order to exercise his peremptory challenges.

The trial court denied Britz's request to conduct an individual, private voir dire of each juror who had heard of his case. Instead, the court asked each prospective juror, in open court, a series of background questions. In the course of these questions, the court asked each juror whether he or she had heard of the case. If the juror had, the court then asked the juror when and how that exposure took place, whether the juror had discussed the case or news account with anyone, whether the juror had formed an opinion regarding the case, and whether the exposure would affect the juror's ability to decide the case solely on the basis of the evidence presented in court. See, e.g., Transcript of Proceedings on January 19, 1988 ("Trial Tr."), Petitioner-Appellant's Supplemental Appendix B, at 60-63 (voir dire of Daniel Becker).

The trial court so questioned a total of 36 prospective jurors. (The selection of the jury took an entire day.) Six of these jurors were excused before being asked about their prior knowledge of the case. Twenty-seven of the remaining 30 answered that they previously had heard of the case, but only one said that she had formed an opinion because of that exposure. That juror was excused for cause. Twelve of the prospective jurors stated that they had seen or heard the news accounts that aired that very day (January 19, 1988), which accounts mentioned Britz's prior conviction. Britz challenged six of these jurors for cause, but the trial court denied those challenges. Britz used a few of his peremptories to eliminate three of these jurors. The prospective jurors who had never heard of the case at all were excused for other reasons, meaning that all twelve jurors (and two alternates) who ultimately were selected acknowledged some prior familiarity with the case. Six of the twelve had been exposed to the contemporaneous news accounts that included references to Britz's prior conviction. All twelve jurors assured the court that they would decide the case based solely on the evidence presented in court. Britz had two of his seven peremptory challenges remaining after the jury had been selected.

Britz claims...