Gomez v. Ahitow, 92-4058
| Decision Date | 30 August 1994 |
| Docket Number | No. 92-4058,92-4058 |
| Citation | 29 F.3d 1128 |
| Parties | Harry GOMEZ, Petitioner-Appellant, v. Rodney J. AHITOW, Warden, and Roland W. Burris, Respondents-Appellees. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Frederick F. Cohn, Chicago, IL (argued), for petitioner-appellant.
Steven J. Zick, Office of Atty. Gen., Crim. Appeals Div., Chicago, IL (argued), for respondents-appellees.
Before POSNER, Chief Judge, and EASTERBROOK and RIPPLE, Circuit Judges.
Petitioner Harry Gomez was convicted in Illinois state court of armed robbery and murder. Mr. Gomez filed a petition in federal district court for a writ of habeas corpus pursuant to 28 U.S.C. Sec. 2254. The district court denied Mr. Gomez's petition for the writ. It determined that it was not necessary to hold an evidentiary hearing on the validity of Mr. Gomez's waiver of conflict-free defense counsel or on Mr. Gomez's claim of ineffective assistance of counsel. Mr. Gomez now appeals. For the reasons that follow, we affirm the district court's denial of the petition.
At approximately 6:30 a.m. on January 1, 1984, a man on his way to church discovered the body of Gilbert Perez in an alley near the intersection of West St. Paul and Northwestern Avenues in Chicago. 1 Chicago police officers were called to the scene. Their investigation revealed that Perez had suffered two massive shotgun wounds to the body and at least one shotgun wound to the head. Later that month, the Chicago police received an anonymous telephone call about the Perez homicide; the caller linked the crime to a car having the license number AA 959.
They also interviewed a woman named Nancy LeBron. However, as the result of fears stemming from the nature of the case, it was not until November 1984 that LeBron went to the police and informed them that she actually had seen Perez and the likely perpetrators shortly before the crime. She ultimately decided to come forward with her full story because she had received threats against her son's life. The police showed LeBron several books of photographs; she identified Mario Flores, Victor Flores, and Samuel Ramos as the three men she had seen with the victim shortly before his death.
The police arrested Ramos and took him into custody for questioning. Ramos provided the police with information that implicated Victor and Mario Flores as well as the petitioner, Mr. Gomez. The police then located Victor and Mario Flores and arrested them; they were driving an automobile with the license number AA 959. LeBron subsequently viewed a lineup in which Victor and Mario Flores and Samuel Ramos were present. LeBron positively identified Victor and Mario Flores, but determined that Ramos was not the third man she had seen with the victim before his death. Soon thereafter LeBron was shown photographs from which she identified Mr. Gomez as the third person at the accident scene. 2
At Mr. Gomez's state court trial for the murder and armed robbery of Perez, Nancy LeBron related the events that she saw take place shortly before Perez's death. At approximately 2:30 a.m. on January 1, 1984, LeBron was sleeping at her home at 2351 West North Avenue when she was awakened by the sounds of an automobile accident. She looked out her window and saw that a car in which Perez was riding had crashed into a light pole. Two other cars then stopped near the accident; Mario and Victor Flores and Mr. Gomez emerged from them. LeBron testified that she saw Mario Flores remove a shotgun from the trunk of one of the cars and, after he spoke with Mr. Gomez, return the shotgun to the trunk. She then saw Perez enter one of the cars with Mario Flores and saw both cars leave the scene.
Samuel Ramos was also called by the State of Illinois to testify at Mr. Gomez's trial. Ramos, who was serving a sentence for an unrelated conviction for armed robbery and murder, basically refused to testify; he claimed that he could remember nothing about the events of the morning of January 1, 1984. However, the prosecution called Ramos' attention to his grand jury testimony in the Gomez case, which was later entered into the record as substantive evidence. In his grand jury testimony, Ramos had related that Mr. Gomez spoke with him on January 2, 1984 and boasted that Mario Flores had killed someone. Ramos had stated that Mr. Gomez told him that a car accident had taken place at the corner of North Avenue and Western Avenue involving Perez and a woman. Perez's yelling at the woman apparently had angered Mario Flores, who went to his trunk to get a shotgun. Mr. Gomez had told Mario Flores to put the shotgun back, and then had run back to Perez and had persuaded him to come with them in their car. Perez had gotten in the car and had driven to an alley just off St. Paul Avenue, where Mario Flores had shot Perez and Mr. Gomez had taken his jewelry.
Victor Flores also was called to the stand by the prosecution. He testified that, around 2:00 a.m. on January 1, 1984, he was riding in a car driven by Mario Flores. A car proceeding at a high speed passed them as they were driving along North Avenue. When they later came to the corner of North Avenue and Western Avenue, they saw that the car that had passed them had been involved in an accident. They decided to stop, as did Mr. Gomez, who was driving along with them in another car. Victor Flores then testified to the same events to which Samuel Ramos testified in his grand jury testimony--Perez's yelling at the woman involved in the accident, Mario Flores' going for his shotgun, etc.
Unlike Ramos' grand jury testimony, however, Victor Flores' trial testimony took the story up to the time and place of the crime. Victor Flores drove Mario Flores and Perez from the scene of the accident to an alley off St. Paul Avenue. There he parked next to In his defense, Mr. Gomez offered no evidence. The jury convicted him of armed robbery and murder, and he was sentenced to forty-years' imprisonment. The trial court, after conducting a hearing on the relevant issues, denied Mr. Gomez's motion for a new trial. The Illinois appellate court affirmed the conviction in an unpublished opinion, and the Illinois Supreme Court denied a petition for leave to appeal. Mr. Gomez then filed a petition for a writ of habeas corpus in the district court under 28 U.S.C. Sec. 2254. He asserted a variety of constitutional errors in the state court proceedings. The district court, however, denied Mr. Gomez's petition. The district court also refused to hold an evidentiary hearing on whether his waiver of conflict-free counsel was knowing and intelligent, and on whether he received effective assistance of counsel.
Mr. Gomez, who already had arrived. Mario Flores and Perez exited the car. Victor Flores testified that as he was driving the car in reverse in order to turn the car around, he heard four or more gunshots. He looked in his rear-view mirror and saw Perez on the ground. Mario Flores was standing above Perez and was holding a shotgun; Mr. Gomez was bending over Perez's upper body. Victor Flores testified that Mr. Gomez later showed him the handful of chains he had removed from Perez's body.
Mr. Gomez raises several issues on appeal. First, he submits that his trial counsel's cross-examination of Samuel Ramos deprived him of his Sixth Amendment right to effective assistance of counsel. He also asserts that the district court erred in not holding an evidentiary hearing to determine whether his waiver of conflict-free defense counsel was knowing and intelligent. Second, he claims that his Fifth Amendment right not to testify and his Sixth Amendment right to confrontation of witnesses were violated by the prosecution's comment in closing argument on Mr. Gomez's nontestimonial courtroom behavior. Third, Mr. Gomez alleges that several aspects of his trial denied him due process of law: He asserts that the prosecution withheld evidence about its decision not to prosecute a key prosecution witness; that a prosecution witness impermissibly commented on anonymous threats she received about the case; and that photographs admitted into evidence deprived him of a fair trial. We shall address each issue seriatim.
Mr. Gomez argues that his trial counsel's failure to cross-examine Samuel Ramos effectively constituted a violation of his Sixth Amendment right to effective assistance of counsel. Ramos had testified extensively before the grand jury about Mr. Gomez's role in the Perez homicide. He claimed not to remember any of that testimony at trial, only to be reminded of it by the prosecutor, who read a great deal of it back to Ramos on direct examination; Ramos' grand jury testimony eventually was entered into the record as substantive evidence. The entire cross-examination of Ramos by Mr. Gomez's trial counsel consisted of the following:
....
Tr. 149, 152-53. On recross-examination, Mr. Gomez's trial counsel asked Ramos one question Q: And that immunity was that you could not be prosecuted for the homicide of Gilbert Perez, isn't that correct?
A: Right.
Tr. 155. Mr. Gomez claims that there were substantial areas about which any reasonably competent attorney would have...
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