Lear v. Cowan

• Decision Date: 13 July 2000
• Docket Number: No. 99-2564,99-2564
• Citation: 220 F.3d 825
• Parties: (7th Cir. 2000) Tuhran A. Lear, Petitioner-Appellant, v. Roger D. Cowan, Warden, Respondent-Appellee
• Court: U.S. Court of Appeals — Seventh Circuit

Page 825

220 F.3d 825 (7th Cir. 2000)

Tuhran A. Lear, Petitioner-Appellant, v. Roger D. Cowan, Warden, Respondent-Appellee.

No. 99-2564

In the United States Court of Appeals For the Seventh Circuit

Argued February 17, 2000

Decided March 21, 2000

Amended, and Petition for Rehearing and for Rehearing En Banc

Denied, July 13, 2000^*.

[Copyrighted Material Omitted] Alan M. Freedman, Carol R. Heise, Midwest Center for Justice, Chicago, IL, for petitoner-appellant.

David H. Iskowick, Office of the Attorney Geneneral, Criminal Appeals Division, Chicago, IL, for respondent-appellee.

Before Posner, Chief Judge, and Easterbrook and Evans, Circuit Judges.

Posner, Chief Judge.

Lear was sentenced to death by an Illinois state court, and after exhausting state remedies, see People v. Lear, 572 N.E.2d 876 (Ill. 1991), 677 N.E.2d 895 (Ill. 1997), appeals to us from the denial of his petition for federal habeas corpus. The district court analyzed the issues fully and competently, and we have very little to add.

Lear and a companion, Randy Thomas (who was tried separately presumably because they had antagonistic defenses, see, e.g., Hernandez v. Cowan, 200 F.3d 995, 999 (7th Cir. 2000), was convicted of felony murder, and was sentenced to prison for 60 years), entered the shop at a gasoline station in rural Illinois. Two employees were on the premises, Bob Bishop and Gregory McAnarney. According to Bishop's testimony, Lear walked past him toward the restroom while Thomas engaged him in conversation. While they were talking, Bishop was shot in the neck from behind, obviously by Lear if Bishop was face to face with Thomas. Bishop fell to the floor and feigned death, and while lying there heard another shot-- the shot that killed McAnarney--and felt someone remove his (Bishop's) wallet from his pocket. Shortly afterward, with Bishop and McAnarney lying there, a customer entered the store, but when she saw what had happened she quickly began to leave. Lear told her to stay, displaying a gun in his waistband. But she sensibly retreated, and though followed by Lear managed to get back to her car. Her boyfriend, who was in the driver's seat waiting for her to return, drove away, followed by Lear in a van; he was shortly arrested by the state police, the boyfriend having called the police on his CB radio. The arresting officer searched the van and found shell casings and the gun that had been used to shoot McAnarney and Bishop, and in Lear's pocket found McAnarney's wallet. The officer also saw blood on Lear's shoe. The prosecution speculated that the blood was McAnarney's (though it was never tested) and had gotten on Lear's shoe when Lear, having shot McAnarney, removed his wallet. However, only Thomas's fingerprints were found on the gun.

Lear's principal argument is that his Sixth Amendment right to present a defense (e.g., United States v. Scheffer, 523 U.S. 303, 308 (1998); Smith v. Kolb, 950 F.2d 437, 440 (7th Cir. 1991)) was violated by the trial court's refusal to allow him to call as a witness a reporter who had discussed the murder and robbery with Bishop shortly after the event and who in an article that she had written about it (but that we can't find) for a local newspaper had reported Bishop's telling her that the taller of the two robbers, who would have been Thomas, had entered the store first. Yet at the trial Bishop testified that Lear had entered first. When cross-examined about this discrepancy, Bishop admitted that while he didn't remember the exact words he had used to the reporter, probably he had told her that the taller robber had entered first.

Eliding such questions much discussed in the briefs as whether every ruling that erroneously excludes impeaching evidence violates the Constitution and what the correct standard of review of such a ruling is in a federal habeas corpus proceeding governed by the Antiterrorism and Effective Death Penalty Act, we think it plain that there was no error. To impeach is to contradict; so if a witness for one party, in this case the state, admits the proposition that the opposing party wants to prove, there is nothing to impeach. United States v. Rosa, 11 F.3d 315, 336 (2d Cir. 1993); People v. Alexander, 470 N.E.2d 1071, 1079 (Ill. App. 1984). While not recalling his exact words, Bishop admitted having told the reporter, contrary to his direct testimony, that the taller robber (therefore Thomas, not Lear) had entered the store first. The jury could thus weigh the significance of the contradiction between what Bishop had told the reporter and what he testified to at the trial. The significance was slight. Bishop was positive that it was Thomas who had engaged him in conversation, meaning that Lear must have shot him and, given the quick succession of shots, McAnarney as well. It didn't matter who entered the store first; obviously Thomas could have entered first yet tarried at the front while Lear went behind Bishop.

Even if Bishop had denied ever telling anyone that the taller of the robbers had entered first, Lear would have had no right to call the reporter to contradict him. He could not have justified calling her to cast a general doubt on Bishop's veracity concerning any material issue relating to Lear's guilt. For Lear does not contend that Bishop may have been lying, that he pretended to be shot, that he shot himself, that he shot McAnarney and then himself, that he may have been shot by someone other than Lear or Thomas, or that anything else might have happened that would exculpate Lear. The only contention is that Bishop may have been mistaken about which of those two shot him. But that mistake would have been irrelevant to guilt, since each was guilty of and convicted of felony murder, the murder having been committed in the course and furtherance of the robbery. 720 ILCS 5/9-1(a)(3); People v. Smith, 701 N.E.2d 1097, 1100 (Ill. 1998). Impeachment evidence that lacks even oblique relevance to the question of the defendant's guilt is irrelevant and therefore inadmissible--at least on the subject of guilt. For evidence irrelevant at the guilt phase of a trial may be relevant at the sentencing phase-- especially in a case in which a capital defendant is convicted of felony murder, because the Supreme Court has held that a felony murderer can be executed only if he killed or intended to kill the murder victim. Hopkins v. Reeves, 524 U.S. 88, 99-100 (1998); Loving v. United States, 517 U.S. 748, 755-56 (1996); Enmund v. Florida, 458 U.S. 782, 801 (1982). Lear might therefore have had an argument for calling the reporter as a witness at the sentencing hearing. But this argument is thoroughly waived, having been raised for the first time at oral argument--and by one of the judges.

Lear also argues that his trial lawyer rendered ineffective assistance to him by failing to take advantage of Turner v. Murray, 476 U.S. 28, 36-37 (1986), which holds that "a capital defendant accused of an interracial crime is entitled to have prospective jurors informed of the race of the victim and questioned on the issue of racial bias." (McAnarney was white, as is Bishop; Lear is black, as is Thomas.) We must ask whether this omission brought the lawyer's representation of Lear below minimum professional standards, and if so whether it is likely that the jury would not have imposed the death penalty. The Supreme Court made clear in Turner that the lawyer's failure to have the jurors informed of the victim's race and questioned about their feelings about interracial crime is not unprofessional, subpar representation per se. Id. at 37. Indeed, all the Court really held was that if the defense wants to quiz jurors on their reaction to the interracial character of the defendant's crime, the judge must permit this. Obviously there are tactical reasons why a lawyer would not want to direct the jurors' attention to the interracial character of the crime, and the Court recognized this. Id. Lear's lawyer testified that he thought he had dealt with the issue adequately by asking general questions about bias without focusing on race. Asking general questions about bias may have been a better method of eliciting reactions to the interracial character of the crime than playing up the interracial issue, especially since there is no suggestion that the crime had a racial motive. We are given no reason to doubt that the lawyer made the best tactical choice available to him in the tough circumstances that confronted him: a brutal murder and no real defense. We grant that if Lear had asked his lawyer to raise the racial issue, and if the lawyer had refused without explanation, this would strengthen Lear's claim of ineffective assistance of counsel; but that did not happen either. There is, in short, no reason to think counsel was ineffective. In any event no harm has been shown; it is exceedingly unlikely that directing the venire's attention to the interracial character of Lear's conduct would either have disposed the jury that was selected to lenity or have altered the composition of the jury in a direction favorable to him.

The only other matter that warrants discussion is Lear's claim to be entitled by the Eighth Amendment to the aid of a "mitigation specialist" who before the sentencing hearing in a capital case would conduct a thorough investigation of the defendant's past in an effort to develop evidence in mitigation of the case for capital punishment. All other objections to making such a claim the basis for a constitutional right assertable in a federal habeas corpus proceeding to one side, its denial here was harmless. See Britz v. Cowan, 192 F.3d 1101, 1104 (7th Cir. 1999); Stewart v. Gramley, 74 F.3d 132, 135-36 (7th Cir. 1996); Bolender v. Singletary, 16 F.3d 1547, 1561 (11th Cir. 1994). The evidence in aggravation of Lear's offense was compelling, consisting of his having committed two other murders. The evidence that his current counsel and their mitigation specialist...