Lindgren v. Lane

• Decision Date: 15 February 1991
• Docket Number: No. 89-2071,89-2071
• Citation: 925 F.2d 198
• Parties: Charles LINDGREN, Petitioner-Appellant, v. Michael P. LANE, Respondent-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 198

925 F.2d 198

Charles LINDGREN, Petitioner-Appellant, v. Michael P. LANE, Respondent-Appellee.

No. 89-2071.

United States Court of Appeals, Seventh Circuit.

Argued Nov. 5, 1990.

Decided Feb. 15, 1991.

Charles Lindgren, Hillsboro, pro se.

Jonathan Young, law student, Thomas F. Geraghty, Northwestern University Legal Clinic, Chicago, for petitioner-appellant.

Nathan P. Maddox, Asst. Atty. Gen., Office of Atty. Gen., Crim. Appeals Div., Springfield, for respondent-appellee.

Before CUMMINGS, EASTERBROOK and KANNE, Circuit Judges.

CUMMINGS, Circuit Judge.

Petitioner appeals the denial of a writ of habeas corpus by the district court for alleged constitutional violations resulting from his trial for murder and armed robbery. ¹ In 1981, petitioner Charles Lindgren was convicted of murder, armed robbery and robbery after a jury trial in Macoupin County, Illinois. He was sentenced to concurrent terms of 25 to 75 years for armed robbery and 85 to 135 years for murder. For reasons unspecified on the record, petitioner's robbery conviction was vacated.

Petitioner appealed to the Appellate Court of Illinois which affirmed the conviction. People v. Lindgren, 111 Ill.App.3d 112, 67 Ill.Dec. 5, 443 N.E.2d 1129 (4th Dist.1982), and the Illinois Supreme Court denied a petition for leave to appeal. Subsequently the Circuit Court of Macoupin County dismissed Lindgren's post-conviction petition. This decision was affirmed by the Fourth District of the Appellate Court of Illinois, 144 Ill.App.3d 1186, 110 Ill.Dec. 305, 510 N.E.2d 1336 (1986). No petition for leave to appeal to the Supreme Court of Illinois was filed.

Lindgren then filed a petition for writ of habeas corpus in the District Court for the Southern District of Illinois. By consent of the parties, the matter was referred to Magistrate Gerald Cohn, who handed down a 17-page opinion denying the petition (App. 1-17).

The gravamen of the appeal falls into two categories. First, petitioner claims that the prosecutor violated petitioner's Fourteenth Amendment due process rights in violation of Doyle v. Ohio, 426 U.S. 610 96 S.Ct. 2240, 49 L.Ed.2d 91, and Wainwright v. Greenfield, 474 U.S. 284, 106 S.Ct. 634, 88 L.Ed.2d 623, on the ground that the State improperly elicited evidence of his post-Miranda ² silence and request for counsel through the testimony of the arresting police officer. Second, petitioner accuses the State of prosecutorial misconduct resulting from the prosecutor's reference to the testimony of a key witness as "undisputed." Petitioner asserts that this characterization placed undue emphasis on the defendant's decision not to testify. Petitioner's other allegation of prosecutorial misconduct centers on the prosecutor's disparaging reference to the defense counsel's closing argument as containing tricks and illusions in an effort to argue the defense's lack of credibility to the jury.

Facts

According to the testimony of petitioner's girlfriend, Ina Lewis, at 2:30 A.M. on April 18, 1977, petitioner arrived at the home of Lewis' mother in Virden, Illinois, and told Lewis that he had just killed her paternal grandfather, Arthur Lewis. She then accompanied petitioner to the decedent's house in Girard, Illinois. While riding in petitioner's car, Lewis noticed a tire tool on the seat of petitioner's car and placed it on the floorboard. She also noticed that his shirt and gloves had blood on them. When they arrived at Arthur Lewis' residence, petitioner unsuccessfully searched for a large sum of money supposedly kept by her grandfather. While there she viewed the mutilated body of her grandfather. Petitioner kicked the deceased in the ribs, causing the body to jump, and made a crude remark about amputating his genitalia.

Ina Lewis and petitioner then left her grandfather's house to return to her mother's home, and during the trip petitioner told Ina not to say anything and not to turn on the lights in her mother's home. En route they became stuck in a ditch and eventually got a ride to her mother's home. After their arrival there, Ina's mother drove them to 995 North Grove Street in Virden, where Ina's maternal grandmother resided and where Ina and petitioner periodically stayed. In a bedroom there, petitioner produced the victim's wallet containing almost $400. Petitioner told Ina that he had gone to the Lewis house for money. When the decedent ordered the petitioner to leave, Lindgren struck the deceased with a tire tool that he was carrying. At the maternal grandmother's house, Lindgren stripped and had Ina burn his clothes and the wallet, and he told her to wash their shoes, which she did.

The next morning the three of them returned to Lindgren's car. While they were waiting for the tow truck, petitioner removed something from the passenger side of his car and walked a short distance down the nearby railroad track. When Ina saw Lindgren, he was returning from the railroad track; he told her to "be cool" and handed her a gun, wallet and keys. She put the first two items under her mother's car seat. The police then arrived and arrested both petitioner and his girlfriend for murder, armed robbery and robbery.

Ina Lewis' testimony was corroborated through the testimony of a pathologist, by scientific analysis, and by the presence of physical evidence. Petitioner also wrote a letter to witness Joann Branson asking her to give him and Ina an alibi. During her incarceration, Ina supposedly told a cellmate, Cheryl Howell, that she had committed the murder and was blaming it on petitioner. Ina denied this, but she pled guilty to obstructing justice and received a sentence of three years' probation.

References to Lindgren's post-arrest silence

Petitioner contends that his trial record contains unconstitutional references to his post-arrest silence in violation of Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91. The first passage on which the petitioner relies contained the following exchange:

MS. BRUNTON: Q Did you ask Mr. Lindgren any questions?

A [Trooper Koval] Not at that time.

Q Did he make any statement to you after being advised of his Miranda Warnings?

A Yes.

Q What was that?

A He said, you know what's this all about. What's going on.

Q Okay, what occurred next?

A I advised him that there had been a homicide in Girard and that he was wanted in questioning.

Q Did you advise him who the victim was in that homicide?

A No, ma'am, I didn't know at that time.

Q All right, what occurred then?

A Well, he said I don't know anything about it. I've been fishing all night.

Trial Proceedings of 1-20-81, Tr. 134-135. Even a cursory examination of this passage shows that it contains no reference to any post-arrest silence of Lindgren, and indeed his counsel did not even object to the testimony at trial. This excerpt from the transcript illustrates petitioner's attempt to establish an alibi--that on the night of Arthur Lewis' death, he had been fishing at Otter Lake with Ina Lewis.

The petitioner relies on one other passage from the record to show a violation of Doyle:

MS. BRUNTON: Q Did Mr. Lindgren indicate anything to you at that time?

A [Agent Rushing] He indicated that he understood those [Miranda ] rights.

Q Did he say anything to you subsequently?

A He stated that he had been out fishing all night, that he had purchased a fishing license from the Otter Lake concession stand and at that point he didn't wish to say any more.

Trial Proceedings of 1-21-81, Tr. 104-105. Again Lindgren was referring to his Otter Lake fishing alibi. At the end of the quotation, he indicated that "he didn't wish to say any more," but there was no Doyle violation and an objection by defense counsel at the time was properly overruled since the prosecutor never used that testimony against Lindgren. As explained in Greer v. Miller, 483 U.S. 756, 107 S.Ct. 3102, 97 L.Ed.2d 618, it is the use of an accused's silence against him at trial by way of specific inquiry or impeachment that forms the basis for a violation of the Fourteenth Amendment.

At trial the prosecutor never called attention to the petitioner's silence. The defendant simply responded that he didn't "wish to say any more" at the tail end of a compound answer to a question by the police officer. Consequently, no Doyle violation occurred. Petitioner has uncovered no case holding that a mere transcript witness' reference to defendant's silence breaches the Fourteenth Amendment, nor have we discovered any such authority. Since Lindgren's "postarrest silence was not submitted to the jury as evidence from which it was allowed to draw any reasonable inference," no Doyle violation occurred. Greer v. Miller, 483 U.S. at 764-765, 107 S.Ct. at 3108.

Reference to Lindgren's request for counsel

The petitioner argues also that the rule of Doyle as extended in Wainwright v. Greenfield, 474 U.S. 284, 106 S.Ct. 634, 88 L.Ed.2d 623, was violated when the prosecutor elicited testimony at trial concerning the petitioner's post-arrest request for counsel. The first of these exchanges occurred during the State's direct examination of one of the investigating officers:

[Prosecutor Ms. Brunton]

Q. Was anything else done with the Defendant in your presence while he was in the Girard Police Station?

[Trooper Koval]

A. He was again read his rights by Detective Rushing, said I don't know anything about what's going on. I was fishing all night, and I'd like to talk to a lawyer.

Q. Prior to the time that he indicated to you and to Officer Rushing that he wanted to talk to an attorney, did he say anything else about fishing?

MR. RAY: Your Honor, I object to that particular question and would like to approach the bench at this time.

Trial Proceedings of 1-20-81, Tr. 137; emphasis supplied.

The evidence disclosed that petitioner and Ina had been fishing at Otter Lake west of Girard, Illinois, until 8:30 or 9 P.M. on April 17, when they parted, whereas Mr. Lewis was killed between 1 and 5 A.M. on April 18....