Gilbert v. Merchant

• Decision Date: 08 June 2007
• Docket Number: No. 05-3571.,05-3571.
• Citation: 488 F.3d 780
• Parties: Alex GILBERT, Petitioner-Appellant, v. Jay M. MERCHANT, Warden, Respondent-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

488 F.3d 780

Alex GILBERT, Petitioner-Appellant, v. Jay M. MERCHANT, Warden, Respondent-Appellee.

No. 05-3571.

United States Court of Appeals, Seventh Circuit.

Argued November 29, 2006.

Decided June 8, 2007.

Thomas K. McQueen, Anne W. Mitchell (argued), Sonnenschein, Nath & Rosenthal, Chicago, IL, for Petitioner-Appellant.

Anderson M. Gansner (argued), Office of the Attorney General, Chicago, IL, for Respondent-Appellee.

Before BAUER, CUDAHY, and ROVNER, Circuit Judges.

ROVNER, Circuit Judge.

At the age of fifteen, Alex Gilbert pleaded guilty to first degree murder in the Circuit Court of Cook County, Illinois, and was ordered to serve a prison term of thirty years. After exhausting his state-court remedies, Gilbert filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, contending that his trial counsel was ineffective in failing to seek the suppression of his post-arrest statement, which acknowledged his involvement in the crime. Gilbert was fourteen years old at the time of his arrest, and both his confession and the interrogation that preceded it took place in the absence of an attorney, parent, or other friendly adult. On that basis, Gilbert contends that his statement was involuntary and would have been suppressed; had his attorney moved for and obtained the suppression, Gilbert alleges, he would have gone to trial rather than pleading guilty. The district court denied Gilbert's habeas petition. We affirm.

I.

Gilbert's murder conviction arose from the killing of college student Kevin Heard in 1992. Heard was shot because he was mistakenly believed by gang members to be affiliated with a rival gang. Gilbert did not fire the shot that killed Heard, but he was the individual who identified Heard as a rival gang member and, if the State's evidence is credited, urged his fellow gang members to shoot Heard.

Heard was shot in Chicago late in the evening of July 4, 1992. He was on his way to a barbeque along with two friends, Andrea Lanier and Calvin Stringer. Lanier and Stringer were driving to the barbeque together in one car, while Heard was following them in his mother's car. The barbeque was taking place in the 8400 block of South Throop Street in Chicago.

When the cars arrived in the 8400 block of Throop Street just after midnight, Lanier and Stringer stopped their car in the middle of the street to locate the address of the barbeque and look for a parking space, and Heard stopped behind them. Gilbert, a member of the Blackstone street gang, was standing on a sidewalk nearby with other gang members. When Heard's car stopped, Gilbert walked up to the car and noticed that Heard was wearing a baseball-style cap with the bill of the cap tilted toward his right ear. Gilbert knew that members of the Disciples, a rival street gang, wore their hats in this fashion. When someone on the sidewalk asked Gilbert whether the driver of the car was a Disciple, Gilbert responded in the affirmative, saying "that's folks." ("Folks" is a slang term often used to describe Disciple members.) Blackstone gang member Joseph Owens then emerged from a nearby gangway and fired twice at Heard's car with a .45-caliber weapon.

Monica Collier was visiting relatives in the 8400 block of South Throop and moments before the shooting had returned to her parked car to retrieve a radio and cassette tapes. While walking to her car, she had observed several individuals she knew to be Blackstone gang members milling about on the sidewalk. As she was retrieving the tapes and radio from the car, two cars drove up and stopped next to her car. Collier saw Gilbert, who was carrying a crutch in his hand, walk up to the second of the two cars, point the crutch at the car, and call out "that's folks" to the other gang members standing on the sidewalk. Gilbert also yelled out "pop him" or "cap him" or words to that effect. Collier then witnessed Owens, who was standing near a gangway at the side of 8437 South Throop, fire a handgun at the second car. Collier ducked down and saw the two cars next to hers speed off.

Lanier and Stringer had noticed someone approach their cars from the vicinity of 8437 South Throop and had heard someone call out "Cap his ass!" When they heard the two gunshots, they quickly drove off with Heard close behind them.

Moments later Lanier and Stringer noticed that Heard was flashing his headlights at them. They pulled over, walked back to Heard's car, and found him slumped over. Heard had been shot in the back. They took Heard to a hospital, where he died later that morning.

Investigation over the ensuing twenty-four hours led the police to Gilbert and Owens. The rear window of Heard's car had been shattered, and crime scene technicians found broken glass in the street in front of 8443 South Throop. They also recovered a .45-caliber bullet casing from the gangway next to 8437 South Throop. Police detectives questioned Collier, who identified the shooter as a man she knew as "Joe" and gave them a description of the individual with the crutch who had called out "that's folks." Police also spoke with Abdula Tate, who told them that a male youth by the name of "Alex" had been using her crutches at the time of the shooting. Tate's general description of Alex as an African-American male of medium height and aged fourteen to fifteen corresponded with the description Collier had given of the individual who had pointed a crutch at Heard's car. A records check subsequently revealed that both Owens and Gilbert previously had been arrested in a joint raid on 8501 South Throop Street conducted by Chicago police and the federal Bureau of Alcohol, Tobacco, and Firearms. The information that police had in their records concerning Gilbert's appearance was consistent with the descriptions that Collier and Tate had provided.

At 9:30 on the morning of July 6, police arrived at Gilbert's home (one block east of the shooting) and arrested him. Gilbert was alone in the house at that time. Police officers read Gilbert his Miranda rights in the presence of a youth officer before transporting him to Area 2 headquarters for questioning.

Over the next nine hours, police interrogated Gilbert and ultimately secured his confession. A youth officer was present during the questioning, but so far as the record reveals the officer did not consult with Gilbert or take any affirmative steps to protect his interests. Gilbert at first denied any involvement in the shooting, claiming that he had been in Dalton, Illinois at the time. However, at approximately 12:30 p.m., Gilbert was placed in a lineup along with three other African-American male teens (all of whom were seventeen years old). On viewing the lineup, Collier identified Gilbert as the individual who had walked up to Heard's car, pointed a crutch at the car, and called out both "that's folks" and words to the effect of "shoot him." Police subsequently advised Gilbert that a witness could place him at the scene of the shooting.

At approximately 6:30 p.m., after he was again advised of his Miranda rights, Gilbert gave a statement to an Assistant Cook County State's Attorney ("ASA"). A police detective and a youth officer were among those present. Gilbert indicated that he was fourteen years old and that he had been a member of the Blackstone gang for about two years. Gilbert acknowledged that at or around midnight on July 4, 1992, he and other gang members were hanging out in front of the residence located at 8437 South Throop Street, where one of the gang members lived. Gilbert was playing with crutches that belonged to a friend. Two cars pulled up and stopped in the street. Gilbert walked up behind the second car and noticed that the driver was wearing a baseball cap in the manner of a Disciples gang member. Someone called out to ask whether the driver was a Disciple, and Gilbert responded that he was. "Joe," a higher-ranking member of the Blackstone gang, then ran out from the gangway along side of the residence at 8437 South Throop holding a .45-caliber handgun. Gilbert had seen that gun two days earlier when the gang member who lived at that address had been asked to hide it. "Joe" fired a shot at the car, and Gilbert saw the driver duck down and then sit back up. "Joe" then fired a second shot, and again Gilbert saw the driver duck down; this time, however, he did not see the driver sit up straight. The two cars then drove off.

In his statement, Gilbert acknowledged each of his Miranda rights and indicated that he understood them. He denied the use of alcohol or drugs at the time of his statement. He indicated that he had been treated well by both the police and the ASA who took his statement. He acknowledged that he had been given food and drink and that he had been able to use the bathroom. He reported that he had not been threatened, nor had he been promised anything in exchange for his statement. He acknowledged his understanding that the ASA was not his attorney and that he could be charged as an adult. Gilbert signed each page of his transcribed statement, as did the ASA, police detective, and youth officer who were present when he gave the statement.

Meanwhile, Gilbert's mother, Theresa Jackson, had learned of her son's arrest that afternoon and had arrived at police headquarters at approximately 2:30 p.m. (Jackson had learned of the arrest from a neighbor; the police themselves evidently had not attempted to notify her.) She would later submit an affidavit indicating that she repeatedly asked to see her son, but was told she could not do so because he was being questioned. At approximately 7:00 p.m., she saw officers escort her son from the interview room to the jail. She averred that Gilbert told her that the police had made him "sign something" and urged her to call a lawyer.

A medical examiner later determined that Heard had died from a gunshot to his back. The examiner recovered a .45-caliber slug from Heard's body.

Gilbert was charged as an adult...