Hogan v. McBride, 95-1498
| Decision Date | 14 March 1996 |
| Docket Number | No. 95-1498,95-1498 |
| Citation | 79 F.3d 578 |
| Parties | Nathan Lee HOGAN, Petitioner-Appellant, v. Dan McBRIDE and Pamela Carter, Respondents-Appellees. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Appeal from the United States District Court for the Northern District of Indiana, South Bend Division, No. 3:94CV449 AS; Allen Sharp, Chief Judge.
Before Hon. BAUER, Circuit Judge, Hon. COFFEY, Circuit Judge, Hon. EASTERBROOK, Circuit Judge.
Prior Report: 74 F.3d 144.
Respondents contended that Hogan forfeited his Confrontation Clause argument by omitting it from his petition for transfer to the Supreme Court of Indiana. After we rejected that theory of forfeiture (changing circuit law in the process), respondents filed a petition for rehearing, contending that Hogan also forfeited this contention at trial. The trial judge made a preliminary ruling that witnesses would not be allowed to testify to certain matters but invited Hogan's counsel to renew the question at trial when the dispute could be made more concrete. Cf. Luce v. United States, 469 U.S. 38, 105 S.Ct. 460, 83 L.Ed.2d 443 (1984). Although questioning at trial danced around the forbidden subject, counsel never asked the judge to reconsider his ruling and therefore did not squarely present the issue for decision, respondents insist. We ordered Hogan to respond to the petition for rehearing, but he has not done so. The subject is therefore ready for decision.
Respondents anticipate one objection to their current position: they did not present it in the brief on this appeal. They contend that the law of the circuit offered such strong support for their position that they saw no need to gild the lily. As our opinion points out the cases on which they relied dealt with Illinois practice, and we had held that they could not be uncritically extended. Jenkins v. Gramley, 8 F.3d 505 (7th Cir.1993). But our opinion also concluded that the district judge had been justified in relying on those cases. That observation is equally applicable to respondents, and we therefore conclude that they have not waived the argument they now advance.
The state's appellate court held that, by not asking the trial judge to reexamine his decision on the motion in limine, Hogan forfeited his argument based on the confrontation clause of the Constitution. Hogan v. Indiana, No. 49A05-9306-CR-203 625 N.E.2d 510 (Ind.App. 5th Dist. Dec. 14, 1993), slip op. 8. But it then proceeded to address the subject through the lens of...
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