Coulter v. Gilmore

• Decision Date: 17 September 1998
• Docket Number: No. 96-4033,96-4033
• Citation: 155 F.3d 912
• Parties: Dwayne COULTER, Petitioner-Appellee, v. Jerry GILMORE, Respondent-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 912

155 F.3d 912

Dwayne COULTER, Petitioner-Appellee, v. Jerry GILMORE, Respondent-Appellant.

No. 96-4033.

United States Court of Appeals, Seventh Circuit.

Argued May 27, 1997.

Decided Sept. 17, 1998.

Christine Renee (argued), Norgle-Loewer, Chicago, IL, for petitioner-appellee.

Darryl B. Simko (argued), Office of the Attorney General, Chicago, IL, for respondent-appellant.

Before ROVNER, DIANE P. WOOD, and EVANS, Circuit Judges.

DIANE P. WOOD, Circuit Judge.

On October 17, 1985, Officer Michael Ridges of the Prospect Heights, Illinois, Police Department was killed after he stopped three individuals in a blue Cadillac bearing no license plates. Dwayne Coulter, an African-American, was one of the passengers in the Cadillac. Coulter ultimately stood trial and was convicted in Illinois state court on charges of first degree murder (of Ridges) and of conspiracy to commit murder of one Robert Fischer. See People v. Coulter, 230 Ill.App.3d 209, 171 Ill.Dec. 643, 594 N.E.2d 1163 (Ill.App.1992). Although the state left unused four of its fourteen peremptory challenges and ultimately empaneled a jury that included three jurors and two alternates who were African-American, nine of the state's ten exercised peremptories were used to strike potential African-American jurors. Coulter claimed, first before the state courts on direct appeal and then in the court below under 28 U.S.C. § 2254, that the state's use of peremptories violated his rights under the Equal Protection Clause of the U.S. Constitution and thus ran afoul of the Supreme Court's decision in Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). The district court agreed and granted Coulter's petition.

I

Officer Ridges crossed paths with Coulter and his two codefendants while investigating an alleged conspiracy by the three men to kill Fischer. Coincidentally, shortly after interviewing Fischer about the plot to kill him, Ridges noticed the Cadillac in which the three men were riding, saw that it lacked license plates, called in a traffic stop, and approached the car. Minutes later, police heard a second call reporting that an officer was shot at the same location; the first officer on-scene found Ridges dead of a bullet wound to his head. The officer also found the driver's license of one of Coulter's codefendants. Coulter and his two codefendants were later spotted on the Kennedy Expressway and ordered to pull over. A search of Coulter produced a .38 caliber pistol, which later tests revealed to be consistent with the weapon that killed Ridges. Coulter also tested positive for gunpowder residue on his hands. See generally People v. Coulter, 594 N.E.2d at 1165-67, 171 Ill.Dec. 643 (discussing the facts in detail).

Coulter was charged with the murder of Ridges and conspiracy to commit the murder of Fischer. He elected to go to trial before a jury. During jury selection, the government used nine peremptory challenges to strike African-American jurors from the jury venire; it also struck one non-African-American juror and left its four remaining challenges unexercised. This pattern prompted Coulter's attorney to move three times for a mistrial on the ground that the government's use of peremptory challenges violated the Equal Protection Clause (as explained in Batson). The state trial judge, following a procedure we set forth in more detail below, denied the motions after listening to the government's proffered nondiscriminatory reasons for the challenges. The final jury consisted of eight Caucasians, one Hispanic and three African-Americans. The two alternates were also African-American.

At trial, Coulter admitted to the shooting but claimed that it was an accident that occurred when he slammed the gun on top of the hood of the Cadillac after he became angry while he was talking to Ridges. The jury didn't buy his story; instead, it found him guilty of first degree murder of Ridges and conspiracy to murder Fischer. Because the jury declined to impose the death penalty, Coulter received a sentence of natural life imprisonment. The Illinois courts subsequently denied relief on the claims Coulter raised on direct appeal of his sentence, including the Batson claim now before us.

At the start of voir dire and before the defendant had even raised a Batson challenge, the trial judge indicated that because the State had sought the death penalty, both parties would be required to give contemporaneous, in camera explanations on the record as each peremptory strike was exercised. Ironically, as the Illinois appellate court found on direct appeal, rather than heading off potential problems, the failure to conduct a methodical, step-by-step Batson hearing at the end of jury selection impermissibly reduced the Batson issue on appeal to "an undifferentiated review of defendant's contentions and the State's rebuttal explanations." People v. Coulter, 171 Ill.Dec. 643, 594 N.E.2d at 1171. Thus, before it could even consider the defendant's Batson claim, the Illinois appellate court initially had to remand the case "for clarification of the record concerning the jury selection procedure and for any necessary further proceedings...." Id. On that limited remand (during which the appellate court retained jurisdiction over the appeal), the trial court allowed counsel to supplement the record on the basis of written briefs. We have now learned, contrary to what we had been told before, that the trial court also heard arguments on three occasions, including Coulter's motion to reconsider. Unfortunately, those transcripts became unavailable at some point during the history of this case. Because we were of the view that a petition for a writ of habeas corpus based on Batson should be granted only if the record clearly reflects a problem, we took considerable time to try to procure these transcripts. We now have the transcript of the judge's hearing on March 11, 1991 (which had to be reconstructed for purposes of this appeal from the court reporter's original notes, we understand). To the extent it sheds light on Coulter's appeal, we take that into account here. (The other two transcripts are still unavailable and show no prospect of being reconstructed; we therefore necessarily proceed without them.)

At that March 11, 1991, hearing, the state trial judge began by asking Coulter's lawyer what he wished to add to the record. The lawyer briefly reviewed the facts about the number of African-Americans who were struck by the state and sought permission for discovery of the state's notes about the excused jurors. The state objected on the ground that the prosecutors had already been required to give their "neutral reasons," adding the obscure comment that "I think counsel supplementing on the record at this time does not add to the record." (This comment is hard to reconcile with the command of the Illinois Appellate Court, described in its 1992 opinion, 171 Ill.Dec. 643, 594 N.E.2d at 1171, but we put that to one side.) In the end, even though the trial judge conceded that there was nothing in the original record that explained what the judge himself was doing at the time, he not only refused to allow Coulter's lawyer to conduct further discovery or otherwise to supplement the record, but he also denied an express request from the lawyer to make an offer of proof and threatened to hold the lawyer in contempt for asking. The result was that the second "hearing" for which the Illinois Appellate Court had remanded the case amounted to nothing more than the judge's reiteration of his belief that his original method of proceeding had been satisfactory. On the basis of the additional written submissions and the earlier record, the trial court again found that Coulter had failed to establish a prima facie case of discrimination under Batson, and that in any event the state had offered race-neutral reasons for its challenges. 171 Ill.Dec. 643, 594 N.E.2d at 1171.

The second time around, the Illinois Appellate Court had the following observation about the procedure the trial judge had followed at the original trial:

It appears that the procedure followed was less than ideal, for the record suggests that defendant was unable to attack the reasons offered by the State until the hearing on defendant's motion to reconsider. Moreover, the record indicates that the trial court exhibited an open hostility toward defense counsel in this capital case--hostility that does not find justification in this record.

594 N.E.2d at 1171-72, 171 Ill.Dec. 643. Nevertheless, the appellate court concluded that because the trial judge eventually heard the points defense counsel wished to make, the trial judge's hostility did not amount to a prejudgment of the issue on remand. Id. at 1172, 171 Ill.Dec. 643. Although a trial court's determination of whether a prima facie case existed under Batson will ordinarily not be disturbed, the Illinois Appellate Court concluded after reviewing the entire record that Coulter had indeed established a prima facie case of purposeful racial discrimination in the jury selection process and that the trial court's finding to the contrary was against the manifest weight of the evidence. Id. at 1172-73, 171 Ill.Dec. 643. In so concluding, the state appeals court emphasized the "disproportionate use of strikes against minority venirepersons," that the defendant was African-American and the victim a Caucasian policeman, and that race was the only common trait the excluded jurors shared. Id. at 1173, 171 Ill.Dec. 643. The appeals court then noted that under Batson's second step, the burden shifted to the state to come forward with "clear, reasonably specific, legitimate and race-neutral explanations for striking the venirepersons." Id. Because the question whether a prima facie case has been rebutted is a "factual question grounded in credibility," the Illinois Appellate Court reviewed with "great deference" the trial judge's alternate holding that the...