Hanrahan v. Greer, 88-2927

• Decision Date: 20 February 1990
• Docket Number: No. 88-2927,88-2927
• Citation: 896 F.2d 241
• Parties: Homer E. HANRAHAN, Petitioner-Appellant, v. James GREER, Warden, Menard Correctional Center, Respondent-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 241

896 F.2d 241

Homer E. HANRAHAN, Petitioner-Appellant, v. James GREER, Warden, Menard Correctional Center, Respondent-Appellee.

No. 88-2927.

United States Court of Appeals,

Seventh Circuit.

Argued Dec. 15, 1989.

Decided Feb. 20, 1990.

Cynthia Grant Bowman, Chicago, Ill., for petitioner-appellant.

Mark L. Rotert, Jack Donatelli, Asst. Attys. Gen., Office of the Atty. Gen., Crim. Appeals Div., Chicago, Ill., for respondent-appellee.

Before CUDAHY, EASTERBROOK, and KANNE, Circuit Judges.

EASTERBROOK, Circuit Judge.

Marian Hanrahan died at the hands of her estranged husband Homer and her son Michael. Both maintained that Marian's death was accidental. The jury found Homer guilty of murder; it acquitted Michael of murder but convicted him of kidnapping and aggravated battery. State courts rejected their challenges on direct appeal, People v. Hanrahan, 64 Ill.App.3d 207, 20 Ill.Dec. 866, 380 N.E.2d 1075 (1st Dist.1978), and on collateral attack, 132 Ill.App.3d 640, 87 Ill.Dec. 892, 478 N.E.2d 31 (1st Dist.1985). Homer's federal petitions for collateral relief also have come to grief: first because of incomplete exhaustion of state remedies, Hanrahan v. Bosse, 547 F.Supp. 721 (N.D.Ill.1982), and now partly on grounds of forfeiture and partly on a finding of harmless error, Hanrahan v. Thieret, 695 F.Supp. 372 (N.D.Ill.1988). His luck is about to change, because although he waived in state court most claims potentially available, the state has waived in federal court most of its defenses to his claims.

Script writers must look elsewhere for material; this is too gruesome for prime time TV. Homer and Marian were separated, and a state court had forbidden Homer to visit Marian. Nonetheless he showed up at her house on November 20, 1974--according to him to discuss calculation of child support payments, according to the state to kidnap her until she signed the house over to their children. Homer dismissed the children and took Marian to the basement.

According to Homer, Marian, an epileptic, had a seizure. Homer, a pharmaceutical salesman, injected her with Sparine, a drug he had used before to calm her. She continued writhing during the seizure, and she bumped her head on a post. Homer took the unconscious Marian upstairs to bed. He did not seek medical aid, expecting Marian to be all right in the morning. Next morning Homer discovered she was dead. Terrified, Homer and Michael trundled her into the trunk of the car. Homer left a note for Mary Ellen, their 16 year old daughter, that he and Marian were going on vacation. Mary Ellen did not believe that her mother would leave without saying goodbye--let alone accompany Homer--and went to the police. The next day the police found Homer and his car at his girlfriend's house. Marian's body was in the trunk.

Such is Homer's tale; the state's evidence makes things look worse. Before visiting Marian, Homer met with Michael, a college student, to discuss kidnapping Marian and presented him with a gun. Michael turned the gun on Marian in the basement and demanded a deed to the house. She refused. Mary Ellen heard a heated argument between her parents. Homer tried to truss Marian up and blindfold her. She resisted and kicked Michael in the groin; he responded by pistol-whipping her. Mary Ellen heard her mother scream and whimper "It hurts, it hurts." Blows from the gun knocked her unconscious and caused her to bleed profusely. When Homer took Marian to bed, his hands were covered with blood. Homer and Michael put their clothes in the washing machine to wash away the blood but had no greater success than Lady Macbeth; Mary Ellen saw Michael dressed only in undershorts with blood on them. When Homer lowered Marian, bound and gagged, into the trunk the next morning, Michael heard something like a moan.

Police found the sheets of Marian's bed soaked with blood. A hole had been cut in her slacks; needle marks were found in her buttocks and anus. Sparine was not the only drug she received. She died of morphine intoxication. The coroner also found Sparine, chloroform, alcohol, and barbiturates in her bile. Wounds were secondary causes. Homer expressed bewilderment about the presence of morphine.

Much of the state's case came from Mary Ellen, from the physical evidence, and from Homer's own mouth. Some of it came from Michael. In a series of inconsistent statements to the police, Michael described a kidnapping plot in which he took part, narrated a brutal encounter between his father and his mother in which he was a bystander, and denied complicity. Here lies the difficulty. Michael did not testify. Homer and Michael moved for separate trials; the court denied the motion. The prosecutor then introduced Michael's statements, including the references to Homer, into evidence against Michael. At the time of the trial, Illinois and the federal courts generally permitted this, despite Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968), when the defendants gave "interlocking" confessions, a practice that evenly divided the Supreme Court in Parker v. Randolph, 442 U.S. 62, 99 S.Ct. 2132, 60 L.Ed.2d 713 (1979). Cruz v. New York, 481 U.S. 186, 107 S.Ct. 1714, 95 L.Ed.2d 162 (1987), broke the tie against the "interlocking confessions" doctrine, setting the stage for Homer's principal arguments in support of collateral relief.

The district court's opinion focused on a single statement: Michael's declaration that as Homer stood over an inert Marian in the basement, Homer gasped: "Oh, my God, what have I done?" Although the admission of this statement at a joint trial was unconstitutional in light of Cruz, the district court thought the error harmless beyond a reasonable doubt because it tended to support Homer's position at the expense of the prosecution's. An exclamation of surprise (perhaps grief) suggests accident; the state was trying to show murder. Moreover, Homer testified and admitted making a statement of this kind. Similar evidence via Michael could not have injured his case, the court held. 695 F.Supp. at 385-88.

This treatment of the "Oh, my God" statement is persuasive. Homer insists, however, that this statement is the least of his worries, that his principal objections were directed to Michael's extensive narrations of the kidnapping plan, the battery in the basement, and Homer's use of drugs despite the absence of a seizure. Coming from his own son, who had been linked to the events by Mary Ellen's independent evidence, they must have doomed Homer's defense. None of these did the district court discuss. At oral argument counsel for the state conceded that objections to the use of these statements were raised and preserved in state court and properly presented in the petition for a writ of habeas corpus. Although Homer's lawyer suggests that in retrospect the brief may have put too much weight on the vivid "Oh, my God" exclamation, counsel for the state does not maintain that by concentrating on one statement Homer forfeited his right to review of the effects of the others.

Despite conceding that Homer has preserved Bruton objections to all of Michael's statements implicating him, and that the use of these statements violates the Constitution as Cruz interpreted it, the prosecutor asks us to affirm. To the extent the state insists that the use of all of the statements was harmless beyond a reasonable doubt, it is in the wrong court. Decisions on harmless error, as on other questions involving the fact-specific implementation of legal rules, Mars Steel Corp. v. Continental Bank N.A., 880 F.2d 928 (7th Cir.1989) (en banc), are for the district judge in the first instance.

Although the judge reviews the record of the state case, and some appellate courts take that as a cue for de novo appellate decision-making, e.g., Gunn v. Newsome, 881 F.2d 949, 964 (11th Cir.1989), the Supreme Court has established that district judges have the leading role in "paper cases" no less than when assessing the credibility of testimony. Anderson v. Bessemer City, 470 U.S. 564, 574-75, 105 S.Ct. 1504, 1511-12, 84 L.Ed.2d 518 (1985); see also Icicle Seafoods, Inc. v. Worthington, 475 U.S. 709, 106 S.Ct. 1527, 89 L.Ed.2d 739 (1986) (appellate court should not act even on basis of undisputed facts, when characterization of those facts could be doubted); United States v. Rodriguez, 888 F.2d 519, 521-22 (7th Cir.1989) (that district judge reviews magistrate's recommendations on paper record does not authorize de novo appellate review). Our court has never focused on the question whether review of decisions concerning harmless error should be deferential. Some cases appear to engage in de novo review, United States ex rel. Lee v. Flannigan, 884 F.2d 945, 950-51 (7th Cir.1989), while others are silent, e.g., Burns v. Clusen, 798 F.2d 931, 943-45 (7th Cir.1986). Deferential review is more consonant with principles that govern the ordinary roles of district and appellate judges. But we need not decide a question that has not been briefed, and which is not dispositive in a case that has yet to receive an initial decision from the district judge.

The state maintains, though, that we could avoid remand by holding that on collateral attack the defendant, rather than the state, bears the burden. More, the state contends, the prisoner's burden should be to show that the error affected substantial rights. If this is Homer's task, the state believes, the standard of review could not make the difference. Perhaps harmless error rules should be different on direct and collateral review. One judge of this court so argued in United States ex rel. Miller v. Greer, 789 F.2d 438, 448-56 (7th...