Garlington v. O'Leary

• Decision Date: 17 July 1989
• Docket Number: No. 88-2049,88-2049
• Citation: 879 F.2d 277
• Parties: 28 Fed. R. Evid. Serv. 963 Edward GARLINGTON, Petitioner-Appellant, v. Michael O'LEARY and Neil F. Hartigan, Respondents-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 277

879 F.2d 277

28 Fed. R. Evid. Serv. 963

Edward GARLINGTON, Petitioner-Appellant, v. Michael O'LEARY and Neil F. Hartigan, Respondents-Appellees.

No. 88-2049.

United States Court of Appeals Seventh Circuit.

Argued Jan. 4, 1989.

Decided July 17, 1989.

James B. Burns, Michael J. Allen, Keck Mahin & Cate, Chicago, Ill., for petitioner-appellant.

Jack Donatelli, Office of the Atty. Gen., Chicago, Ill., for respondents-appellees.

Before CUDAHY, EASTERBROOK, and RIPPLE, Circuit Judges.

RIPPLE, Circuit Judge.

Edward Garlington, along with two codefendants, was convicted of murder in 1979 after a bench trial in the Circuit Court of Cook County, Illinois. On direct appeal, the Appellate Court of Illinois affirmed the judgment of conviction, see People v. Patterson, 102 Ill.App.3d 844, 58 Ill.Dec. 542, 430 N.E.2d 574 (1981), and the Illinois Supreme Court denied Mr. Garlington's petition for leave to file an appeal. The Illinois courts also rejected Mr. Garlington's petition for post-conviction relief. Mr. Garlington is serving a thirty-year prison term at the Logan Correctional Center in Lincoln, Illinois.

In January 1987, Mr. Garlington filed a pro se petition for a writ of habeas corpus in the United States District Court for the Northern District of Illinois. The district court appointed counsel on his behalf. Mr. Garlington challenged his conviction on several grounds: (1) the state violated his rights under the fourteenth amendment's due process clause as interpreted in Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), by failing to turn over a police report containing exculpatory evidence; ¹ (2) his sixth amendment right of confrontation was violated by the introduction at trial of a codefendant's hearsay statement; and (3) the state failed to prove his guilt beyond a reasonable doubt in violation of the due process clause of the fourteenth amendment. The district court granted the state's motion for summary judgment. We now affirm.

I. Background

Mr. Garlington, along with Eli Wilson and Larry Patterson, was charged with the murder of Renell Hentley. The Appellate Court of Illinois' summary of the facts underlying Mr. Garlington's conviction must serve as the basis of our review. See 28 U.S.C. Sec. 2254(d); Sumner v. Mata, 449 U.S. 539, 545-47, 101 S.Ct. 764, 768-69, 66 L.Ed.2d 722 (1981). We therefore set forth that account.

Yvonne Amos, Garlington's girlfriend at the time of the events in question, was the principal State witness and testified that on January , ² 1979, the evening prior to Hentley's death, she was informed that Garlington's brother Reginald had been shot in a pool hall. (Reginald died and Garlington was a State witness in the successful prosecution of his two killers.) Amos spent that night at the Garlington home with several others, including Hentley and the defendants. At approximately 8:00 a.m. the following day Garlington instructed her to awaken Hentley and to instruct him to go to Garlington's bedroom. Hentley was followed into the room by defendants and Jimmie Key. Amos heard scuffling noises coming from the bedroom and she heard Hentley say that they had the wrong man. Garlington and Key came out of the bedroom two or three times. On one such occasion Garlington said, "It's going to be all right," to which Key replied, "We're going to take care of him." When the five men came out of the bedroom, Amos described Hentley as having his hair sticking up, a red face, wrinkled clothes, and looking "satisfied." She then saw Wilson, Patterson, Key and Hentley go out the back door. She did not see Garlington go out. About 20 minutes later the men returned without Hentley. One of them took off a black jacket and stuffed it in a box or behind some clothes. Amos testified that she had given several prior statements which conflicted with her trial testimony. She gave these statements out of fear and stated that she was telling the truth at trial.

Kenneth Green, a 12-year-old neighbor, testified for the State that at approximately 10:00 a.m. he saw five men emerge from Garlington's yard. He could identify only Hentley. One of the men punched Hentley while the others surrounded him. Green then saw the man, wearing a black coat, drag Hentley to the garage and strike him over the head with a bottle. At this point Green ran to a neighbor's home at which time he heard 5 or 6 shots. After a few minutes Green returned to the alley where he observed a trail of blood.

Officer Anthony Barry of the Chicago Police Department testified that at 10:10 a.m. he found Hentley dead in the alley. He observed a trail of blood from the body to the alley behind the Garlington residence where he also found a broken bottle. Hentley had $105.00 in his pockets.

Donna Garlington, Garlington's sister, testified for the defense that Amos left the Garlington home at about 2:00 a.m. the morning of Hentley's murder and did not return until that afternoon or evening. She further testified that Hentley himself left the residence about 4:45 a.m. and did not return.

Lillian Ward, a funeral director, visited the Garlington residence to make funeral arrangements. She was there, on January 20, at 9:10 or 9:15 a.m. for about 30 minutes. The atmosphere was quiet, and she heard no fighting or scuffling. She also testified that her notes supported her time sequence.

Patterson, 58 Ill.Dec. at 544-45, 430 N.E.2d at 576-77. The Appellate Court of Illinois also summarized the testimony of Officer Edward Beale of the Chicago Police Department. Officer Beale testified that, Mr. Garlington, while at the hospital on the night his brother was shot and killed, said to a friend, "Well let's go, we'll take care of this, we don't need no police." 58 Ill.Dec. at 545, 430 N.E.2d at 577.

II. Analysis

A. Right to confrontation

As noted above, Ms. Amos testified that Mr. Garlington and Jimmie Key came out of Mr. Garlington's bedroom several times on the morning of Mr. Hentley's murder. On one such occasion, Mr. Garlington said, "Its going to be all right," and Mr. Key said, "We're going to take care of him." Mr. Key's statement was admitted at trial. Mr. Garlington asserts that Ms. Amos' testimony regarding Mr. Key's statement was hearsay and that admitting the statement violated Mr. Garlington's sixth amendment right to confrontation. ³ The Appellate Court of Illinois concluded that Mr. Key's statement was properly admitted under the coconspirator exception to the hearsay rule, since the state had made a prima facie showing that a conspiracy existed among the defendants. See Patterson, 58 Ill.Dec. at 546, 430 N.E.2d at 578. Although the district court noted that the Appellate Court of Illinois had improperly applied the prima facie standard rather than deciding, as required by Bourjaily v. United States, 483 U.S. 171, 176, 107 S.Ct. 2775, 2779, 97 L.Ed.2d 144 (1987), whether the elements of the coconspirator exception had been established by a preponderance of the evidence, see Garlington v. O'Leary, No. 87 C 871, mem. op. at 10-11, 1988 WL 37790 (N.D.Ill. April 18, 1988); R.30 at 10-11 [hereinafter Mem. op.], the district court concluded that the state's evidence did "make[ ] it more likely than not that a conspiracy existed and that Garlington and Key were members of it." Id. at 13. Thus, the court held that Mr. Key's statement fell within the coconspirator exception to the hearsay rule, and admission of the statement did not violate Mr. Garlington's sixth amendment right to confrontation.

The obligation of Illinois is to employ in its criminal proceedings an evidentiary rule that satisfies the confrontation clause of the federal Constitution. See Pointer v. Texas, 380 U.S. 400, 403-04, 85 S.Ct. 1065, 1067-68, 13 L.Ed.2d 923 (1965) (holding that the confrontation clause is applicable to the states through the fourteenth amendment). In Bourjaily, the Supreme Court held that a coconspirator's statement that is admissible under Fed.R.Evid. 801(d)(2)(E) satisfies the confrontation clause. See 483 U.S. at 182-84, 107 S.Ct. at 2782-83. While the federal rule is quite obviously not directly applicable to this state proceeding, we can use it as a helpful guide in assessing the admission of the statement by the Illinois court pursuant to Illinois evidentiary rules. If the Illinois ruling would have satisfied Fed.R.Evid. 801(d)(2)(E), it will also satisfy the constitutional requirement. Rule 801 provides that a statement offered against a party is not hearsay if it is a "statement by a coconspirator of a party [made] during the course and in furtherance of the conspiracy." Fed.R.Evid. 801(d)(2)(E). Thus, in order for Mr. Key's statement to be admissible under Rule 801, the state must have established three preliminary facts: (1) that a conspiracy existed, (2) that Mr. Garlington and Mr. Key were involved in the conspiracy, and (3) that the statement was made "during the course and in furtherance of the conspiracy." Each of these factual elements must be established by a preponderance of the evidence. See Bourjaily, 483 U.S. at 176, 107 S.Ct. at 2779; United States v. D'Antoni, 874 F.2d 1214, 1217 (7th Cir.1989). On appeal, Mr. Garlington maintains that the district court erred in holding that the statement was admissible under Rule 801 since the state failed to prove the last two elements by a preponderance of the evidence.

1. Participation in the conspiracy

Mr. Garlington asserts that the evidence presented by the state at trial did not prove that he was a participant in the conspiracy to murder Renell Hentley, since it merely showed that he was associated with the coconspirators and may have had an opportunity to join the conspiracy. Mr. Garlington, however, does not now dispute the fact that the state has proven the existence of a conspiracy. While we have noted that mere association with conspirators is insufficient by itself to prove participation in a conspiracy, ⁴ the circumstances surrounding a party's...