Clark v. O'Leary

• Citation: 852 F.2d 999
• Decision Date: 24 August 1988
• Docket Number: No. 87-2801,87-2801
• Parties: 26 Fed. R. Evid. Serv. 665 Kent CLARK, Petitioner-Appellant, v. Michael O'LEARY and Attorney General of the State of Illinois, Respondents- Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)

Page 999

852 F.2d 999

26 Fed. R. Evid. Serv. 665

Kent CLARK, Petitioner-Appellant, v. Michael O'LEARY and Attorney General of the State of

Illinois, Respondents- Appellees.

No. 87-2801.

United States Court of Appeals, Seventh Circuit.

Argued May 20, 1988.

Decided July 25, 1988.

Rehearing and Rehearing En Banc Denied Aug. 24, 1988.

Edward W. Feldman, Northwestern Univ. Legal Clinic, Chicago, Ill., for petitioner-appellant.

Kenneth A. Fedinets, Office of the Illinois Atty. Gen., Chicago, Ill., for respondents-appellees.

Before CUMMINGS and POSNER, Circuit Judges, and ESCHBACH, Senior Circuit Judge.

CUMMINGS, Circuit Judge.

After being convicted in a state court jury trial for murder and attempt murder, petitioner Kent Clark was sentenced to concurrent terms of 40 years and 20 years respectively. The convictions were affirmed on appeal. People v. Clark, 129 Ill.App.3d 374, 84 Ill.Dec. 677, 472 N.E.2d 814 (1st Dist.1984). The Supreme Court of Illinois declined review, and a few months thereafter a habeas corpus petition was filed in the district court by this inmate of the Illinois Department of Corrections. This appeal is from the denial of the writ.

Of course, limitations in cross-examination may be applied as long as a jury has available to it sufficient information to make a "discriminatory appraisal of the witness's motives and bias." United States v. DiCaro, 852 F.2d 259, 260 (7th Cir.1988); United States v. Robinson, 832 F.2d 366, 373 (7th Cir.1987); United States v. Wellman, 830 F.2d 1453, 1465 (7th Cir.1987). Here the state trial court granted the State's motion in limine to exclude all reference to gang affiliation, thus preventing the defense's use of cross-examination to attack the credibility of government witnesses whose testimony solely linked petitioner to the crime. We conclude that this refusal of the trial court to permit questioning regarding the alleged bias and motive springing from the witnesses' membership in or affiliation with a rival street gang violated the confrontation clause of the Sixth Amendment, a trial error that was not harmless beyond a reasonable doubt. Delaware v. Van Arsdall, 475 U.S. 673, 106 S.Ct. 1431, 1438, 89 L.Ed.2d 674 (1986).

I

As noted below, resolution of Clark's claims requires a close analysis of the trial record. Petitioner's convictions arose from a shooting incident which occurred on March 23, 1982, at about 7 p.m., in the 1500 block of South Drake Street, Chicago, Illinois. Sharvis Pipes, Bobby Pipes, Geneva Morffett, ¹ and Leroy Morffett all suffered gunshot wounds, and Leroy eventually died in April of 1982. ² Petitioner, his brother Calvin, and Dwayne Moorehead were arrested that evening, and the initial police reports taken at that time described the shooting as gang-related (R. 10). At the beginning of the trial, however, the State orally asked for a motion in limine to exclude all reference to gang affiliation (R. 7).

Petitioner's counsel opposed the motion and argued that the Pipes were members of the Conservative Vice Lords, a Chicago street gang. Defendants were said to be members of a rival gang. Both gangs were allegedly involved in an earlier altercation on that day. To retaliate against petitioner and his co-defendants, the victims supposedly deliberately lied about their attackers' identities. The defense theory articulated by petitioner's counsel was based on alibi, and since the only evidence to place petitioner at the crime came from these victims, they allegedly had a motive to lie. Bias and prejudice thus emanated from this inter-gang animosity. The defendants also claimed that evidence of gang membership was an important factor for the jury to consider in assessing the witness' credibility.

Upon its review of a preliminary hearing transcript where one victim openly admitted his gang membership, the trial court found that gang affiliation was irrelevant and then granted the State's exclusion motion. The following colloquy was representative of the argument on the motion in limine:

THE COURT: Well, then, that being the issue, what would gang affiliation have to do with the issues in the case? ... That has to do, usually, with the motive.

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MR. WOOD (counsel for Mr. Clark): You answered exactly what I was going to represent; that the complainant, that is, the State's witnesses admit that they are gang members, and it's not a question of identity because ... the primary witnesses in behalf of the State claim to know, and to have known previously, the defendants. So it's not identity....

And it is therefore, my position that their admission ... is that this is a motive to lie, not in terms of identification, but an outright lie.

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THE COURT: But it's all irrelevant.

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THE COURT: The question is one of identification, not who belonged to what gang.

(R. 9-14). This argument on the motion continued, and the trial court insisted that petitioner's counsel provide specific evidence concerning gang membership. Counsel for petitioner then recounted the alleged altercation which occurred earlier in the day:

MR. WOOD: [B]ecause there are some other circumstances that will develop, that happened earlier that day, that led up to this. That led up to this shooting. That the jury, as the trier of fact ... is entitled to know this aspect of any witness ... so that they could evaluate and determine how much weight should be given to this particular witness' testimony.

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THE COURT: It has nothing to do with--you see, the issue in this case, is--the issues are identification and credibility. That's what it is. It has nothing to do with gangs.

MR. WOOD: Credibility, your Honor. You just hit it. It has nothing to do with identity.

THE COURT: Well, gang membership, even though, it probably should be a felony, it isn't. And so--and it is nothing that--that affects one's credibility.

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MR. WOOD: I'm speaking of an incident that happened a few hours earlier between the defendant and members. And I have to review my facts ... [but] it is my contention, that they would have a motive of lying against the [defendant] Clark boys, by saying that they are-- that is, the Pipes boys, the State's witnesses, that we are members of the Conservative Vice Lords.... And that the Clark boys are members of some other rival gang. And, therefore, that is the motive to lie, to get some members of the rival gang.

THE COURT: That's exactly what I proposed to you, that there is a--here, a reference to opposing gang membership. And on that basis, is possible that they would lie, because of this gang rivalry. But, that is not any part of the evidence or the issues in this case.

And so, the Motion in Limine is granted, and there will be no mention of gang membership.

(R. 76-78).

The trial then began, and the facts as adduced at trial and presumed as accurate under 28 U.S.C. Sec. 2254(d); Sumner v. Mata, 455 U.S. 591, 597-598, 102 S.Ct. 1303, 1306-1307, 71 L.Ed.2d 480 (1982); Walton v. Lane, 852 F.2d 268, 269 (7th Cir.1988), were summarized by the Illinois Appellate Court and were as follows:

Geneva Morffett, wife of the deceased [Leroy Morffett], testified that as she and her husband stepped onto the porch of their home, she saw a large crowd standing nearby and heard several gunshots. A bullet grazed her left arm and her husband was shot in the abdomen. Mr. Morffett was hospitalized because of his injury and was released from the hospital on April 9, 1982. Mrs. Morffett did not see the gunman.

Brian Ashford and Terrence Harris testified they were playing basketball in the alley behind the 1500 block of South Drake when four men walked past them. Ashford recognized all three defendants and Harris recognized Kent Clark. The four men stopped where Thomas Harris and Kewane Smith were playing basketball. Ashford testified that Kent Clark placed a gun to Thomas Harris' head. Ashford and Harris saw the four men run into a gangway toward Drake street. Both witnesses testified they heard gunfire shortly thereafter and ran home.

Thomas Harris testified that on the evening in question, he was playing basketball in the alley with Kewane Smith. Kent and Calvin Clark and two other men ran towards them. Kent Clark aimed a gun at Harris and told him he would shoot if Harris moved. Kent Clark then followed the other three men through a gangway. As Harris ran home, he heard about ten gunshots.

David LeFlore testified that prior to the incident he was standing in front of 1510 South Drake with Sharvis and Bobby Pipes and about 15 other people. Defendants and a fourth person appeared from a gangway and began firing gunshots into the crowd. Each defendant carried a gun. Bobby Pipes was injured and taken to the hospital.

Sharvis Pipes testified a crowd had gathered to watch a fight among several girls. Calvin Clark, Dwayne Moorehead and another person ran from the gangway. Clark and Moorehead were carrying guns. About 15 shots were fired, one of which struck Pipes in his leg. Police took Pipes to the hospital where he identified Calvin Clark as one of the gunmen. Later at the police station, he identified Moorehead.

Bobby Pipes was also among those who had gathered on the street on the evening in question. He testified that at 7 p.m., Calvin and Kent Clark and two other people ran towards the crowd and began firing guns. Bobby Pipes was shot in his left arm and required surgery to remove the bullet.

Officer Henry Jackson testified he interviewed Sharvis Pipes at Mount Sinai Hospital. Pipes stated he was shot by defendant Calvin Clark. Officer John Kohles testified that after speaking to Sharvis Pipes and Officer Jackson at the hospital, he returned to the scene of the crime, spoke to Kent Clark, and took Kent Clark and two others to the hospital. Sharvis Pipes could not identify any of the three. Later that evening, Sharvis Pipes identified Calvin Clark and Dwayne Moorehead.

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* * * Defendant Kent Clark testified he...