Johnson v. Acevedo

• Decision Date: 14 July 2009
• Docket Number: No. 08-1731.,08-1731.
• Citation: 572 F.3d 398
• Parties: William JOHNSON, Petitioner-Appellee, v. Gerardo ACEVEDO, Warden, Hill Correctional Center, Respondent-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

572 F.3d 398

William JOHNSON, Petitioner-Appellee, v. Gerardo ACEVEDO, Warden, Hill Correctional Center, Respondent-Appellant.

No. 08-1731.

United States Court of Appeals, Seventh Circuit.

Argued September 3, 2008.

Decided July 14, 2009.

Marc R. Kadish, Attorney (argued), Daniel Staroselsky, Mayer Brown LLP, Chicago, IL, for Petitioner-Appellee.

Leah C. Myers, Attorney (argued), Office of the Attorney General, Chicago, IL, for Respondent-Appellant.

Before EASTERBROOK, Chief Judge, and CUDAHY and SYKES, Circuit Judges.

EASTERBROOK, Chief Judge.

William Johnson is serving sentences aggregating 50 years' imprisonment for armed robbery, aggravated battery, and use of a weapon by a convicted felon. A jury in Illinois convicted him of these offenses following a trial at which one of his cousins, plus two employees of a McDonald's restaurant, testified that he entered the restaurant with a sawed-off shotgun and robbed the cash registers, shooting and injuring one of the employees in the process. Johnson testified at trial that he had been buying auto supplies while his cousin robbed the restaurant. A federal district court issued a writ of habeas corpus under 28 U.S.C. § 2254 after concluding that the prosecutor had violated the rule of Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976), by asking Johnson why he failed to relate this story when interviewed the day after the robbery. 544 F.Supp.2d 683 (N.D.Ill.2008). The state contends that Anderson v. Charles, 447 U.S. 404, 100 S.Ct. 2180, 65 L.Ed.2d 222 (1980), permits the prosecutor to pursue this line of questioning, and that any error is harmless.

A jurisdictional problem delayed consideration of this appeal. The district court entered a judgment that reads, in full: "IT IS HEREBY ORDERED AND ADJUDGED that the petitioner, William Johnson's petition for a Writ of Habeas Corpus is conditionally granted." This sounds like a writ will issue in the future if some condition is satisfied — but what condition? The district judge's opinion says that the state must release Johnson unless he is retried within 90 days. That is not a "conditional grant" of anything; it is a decision that Johnson is entitled to a writ that allows the state to choose between retrial and release. But no such writ was issued. A judgment needs to do more than just say that some petition or motion has been granted; it must provide the relief to which the victor is entitled. Until that happens there is no final decision and nothing to appeal.

Every judgment must be self-contained and specify the relief being awarded. See, e.g., Reytblatt v. Denton, 812 F.2d 1042 (7th Cir.1987). A writ of habeas corpus is enforceable by contempt, so it is especially important that the court set out precisely what is required. District courts would cause fewer problems of this kind if they obeyed Fed.R.Civ.P. 58(b)(2), which says that the judge must personally review and approve any judgment other than one implementing a jury's verdict or denying all relief. This judgment was not approved by the judge; it is signed only by a deputy clerk (and not really "signed" even by the clerk; there is just a line with "/s/" followed by a typed name). Rule 58(b) requires review and approval by a judge because deputy clerks cannot read judges' minds and may not use legally appropriate language even if they can discern a judge's objective. (Few deputy clerks are lawyers.) This court put the appeal in stasis while the parties returned to the district court and obtained a proper final judgment. That has been done, so the appeal can proceed.

Johnson's cousin, Jameel White, testified that he drove with Johnson to a McDonald's restaurant, which the two entered to order a meal. (We have drawn this information, and much of what follows, from the opinion of the Appellate Court of Illinois. No one contests that court's narration of what happened at trial.) According to White, Johnson unexpectedly pulled out a sawed-off shotgun and began a robbery; White fled across the street to a Trak Auto store, where Johnson eventually joined him. The two paid a third party to give them a ride. White went home, and Johnson went to a motel. Two employees of the restaurant picked Johnson out of a lineup as the robber and identified him at trial. An employee of Trak Auto testified that Johnson entered the store and waved a fistful of crumpled bills. Police found in Johnson's car, which had been left in the restaurant's parking lot, some crumpled currency and a sawed-off shotgun; a spent shell was in the gun's chamber. (The robber had fired one round inside the restaurant.) A torn portion of a $20 bill in the car matched the remainder of that bill eventually recovered from Johnson.

Johnson offered a completely different version of events. He testified that White drove him to the Trak Auto store so that he could buy auto supplies. (The car was Johnson's but White was the driver, Johnson testified, because Johnson's driver's license had been revoked.) White dropped him off and continued to the McDonald's restaurant. White met Johnson later, looking jittery, and said that Johnson's car had been involved in some misconduct and should be abandoned. White then arranged for a third party to drive them away, taking White home and Johnson to a motel.

After finding the shotgun and some of the loot in Johnson's car, police naturally wanted to talk with him. They tracked him down at the motel and gave him Miranda warnings; an Assistant State's Attorney asked him about the events. The prosecutor tried to offer the resulting statement at Johnson's trial, but the judge excluded it on state-law grounds. (The prosecutor had not turned over a copy of the statement during discovery, as Illinois law requires.) A prosecutor made this offer of proof:

A.S.A. Keating would state that [Johnson] told him that he woke up at approximately 6:00 a.m. on 11/11/98, went for some car parts, had to take Theresa [his sister] to work. He was planning on going to Robbins[, Illinois,] that night for some peace talk for some shooting earlier. He thought he would die that night, so he drank some wine, smoked some crack and weed. He went to a friend's house where he had sex in a bathroom, and he went to his sister's after that, and he remembers being in the hotel when the police came to get him.

This account of his activities on the day of the robbery did not include any information about White driving Johnson to Trak Auto and the other events to which Johnson had testified. The prosecutor asked Johnson a total of 25 questions that were variations on the theme: "If what you have just testified is true, why didn't you tell the Assistant State's Attorney when you made your statement to him?" The state judge sustained objections to 10 of the questions, so there was no error in that respect, see Greer v. Miller, 483 U.S. 756, 107 S.Ct. 3102, 97 L.Ed.2d 618 (1987), but he allowed the other 15, and the federal district judge thought this an egregious violation of Johnson's rights.

Doyle holds that a defendant who receives Miranda warnings, and invokes his right to keep silent, cannot be cross-examined about that silence at trial. The Court's rationale is that Miranda warnings should not become a trap. Questions of the "why didn't you say this earlier?" variety ask the jury to infer that an innocent person would have spoken, but Miranda warnings supply an explanation other than guilt for a suspect's silence. See Brecht v. Abrahamson, 507 U.S. 619, 628-29, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993). A corollary is that, if the suspect chooses to speak after receiving Miranda warnings, then any difference between what the person says before trial, and testimony at trial, may be the subject of questions and comment. That's the holding of Anderson v. Charles:

Doyle does not apply to cross-examination that merely inquires into prior inconsistent statements. Such questioning makes no unfair use of silence, because a defendant who voluntarily speaks after receiving Miranda warnings has not been induced to remain silent. As to the subject matter of his statements, the defendant has not remained silent at all.

447 U.S. at 408, 100 S.Ct. 2180. And an out-of-court statement may be called "inconsistent" with the in-court statement because of a curious omission as well as a flat contradiction. Sherlock Holmes recognized in Silver Blaze that the dog's failure to bark, when barking would have been expected, conveyed a powerful message. So the Court remarked:

Each of two inconsistent descriptions of events may be said to involve "silence" insofar as it omits facts included in the other version. But Doyle does not require any such formalistic understanding of "silence," and we find no reason to adopt such a view in this case.

Id. at 409, 100 S.Ct. 2180. This is the idea behind the questions that the prosecutor asked on cross-examination. Johnson told the Assistant State's Attorney what he had done on the day of the robbery. His story left out all of the vital details that he supplied on the stand; the prosecutor then implied that the story told in court must be a recent invention.

The Appellate Court of Illinois and the federal district court found a constitutional problem for two reasons. First, they observed that Johnson's statement to the Assistant State's Attorney (at least as summarized in the offer of proof) did not mention either White or the robbery, so that the questioning at trial did not cover the same "subject matter" as the statement. Second, they thought it hard to see how Johnson could be questioned about inconsistencies between his trial testimony and his statement to the Assistant State's Attorney, when that statement was not in evidence.

Neither of these points is enough, independently, to support the conclusion that the questions transgressed the holding of Doyle. That the statement to the Assistant State's Attorney did not mention White is the very thing that made...