Mack v. Peters

• Decision Date: 03 April 1996
• Docket Number: No. 94-3849,94-3849
• Citation: 80 F.3d 230
• Parties: Terrance MACK, Petitioner-Appellant, v. Howard A. PETERS, III, Director, Department of Corrections, State of Illinois, Respondent-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 230

80 F.3d 230

Terrance MACK, Petitioner-Appellant, v. Howard A. PETERS, III, Director, Department of Corrections State of Illinois, Respondent-Appellee.

No. 94-3849.

United States Court of Appeals Seventh Circuit.

Argued Oct. 23, 1995.

Decided April 3, 1996.

Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 93 C 2053--James B. Zagel, Judge.

James N. Perlman (argued), Office of Cook County Public Defender, Chicago, IL, for petitioner-appellant.

Nancy L. Grauer, Steven Zick (argued), Office of Atty. Gen., Criminal Appeals Div., Chicago, IL, for respondent-appellee.

Before CUMMINGS, RIPPLE, and MANION, Circuit Judges.

MANION, Circuit Judge.

Convicted murderer Terrance Mack seeks a writ of habeas corpus which the district court denied. While a member of the Black Gangster Disciples gang, Mack attempted to murder an adversary who had "disrespected" a fellow gang member. Mack shot the youth from a moving car. While wounding the youth, Mack also shot and killed an eleven-year-old boy standing nearby. Mack, along with the driver of the car, Adrian Hennon, and another passenger were arrested soon after. Mack and Hennon's cases were severed and they were tried simultaneously before separate juries, with Hennon's defense case following Mack's. Both juries convicted. After exhausting his direct appeals, Mack filed the habeas petition now before us. Mack claims he was denied his constitutional right to a fair trial by the state trial court's refusal to completely sever his case from Hennon's and its failure to reorder the trial so that Hennon's defense case would precede Mack's, permitting Hennon to testify on Mack's behalf. Because we find no constitutional error with Mack's trial, we affirm the district court's denial of the writ.

I.

A. The Shooting

At Mack's trial, the State of Illinois introduced through eyewitness testimony evidence of the following chain of events: ¹ On Friday, September 9, 1988, Darren Harris, Devon Miller, Jason Murray, Elwood Verrett, Esau Asad, and Esau Asad's eleven-year-old brother Abdulah Asad were standing together in a public park across from the Chicago Vocational High School. Several other young men in a Suzuki Samurai drove up and began yelling at Jason Murray after Murray crossed the street to get ice cream. The Suzuki left but returned shortly accompanied by a grey Chevrolet Nova containing Terrance Mack, Adrian Hennon, and Richard Terrell. The men in both cars, including Mack, were members of the Black Gangster Disciples gang.

Several of those in the cars began yelling and "throwing gang signs" at the young men in the park. The young men in the park testified that they yelled back at the others to leave them alone, that they were not members of any gang. Mack disputed this point at trial. He accused the other young men of being members of the Vice Lords, although he also testified he had never seen them before. Other than Mack's accusation from the stand neither the State nor Mack's attorney elicited any testimony or introduced any evidence that the young men in the park belonged to any gang. During the confrontation at the park, Mack pointed people out and shouted, depending upon whose testimony we believe, "shoot him," "pop him," ² or "pop that shorty."

The Black Gangster Disciples then reentered the Suzuki and Nova and drove down the street. Verrett testified that he saw Mack and Hennon get into the Nova. The Suzuki drove off but the Nova turned around and passed in front of the young men in the park. According to Verrett, as the Nova drove by Terrance Mack stuck his arm out the window and fired a number of shots in the direction of the young men in the park. All of the others who were shot at testified at trial that they clearly saw Mack shooting from the front passenger's window while Hennon was driving the car.

The apparent target of the shooting, Jason Murray, was shot in the arm. Eleven-year-old Abdulah Asad was shot in the back. His brother Esau Asad carried Abdulah to a police car that arrived at the far end of the park, and cared for him as the car raced the Asad brothers and Jason Murray to the hospital. Abdulah Asad was dead on arrival from a bullet having passed through his heart.

B. The Arrest

Within minutes of the shooting, and while en route to the hospital, police officer Earl Parks radioed an alert with a description of the grey Nova, which witnesses had described to Parks as the injured young men were loaded into the police car. Cruising several blocks away, Officer Ronald Forgue heard the call and five or six minutes later observed a car matching the description pass him going the other direction. Officer Forgue pursued the Nova, which attempted to escape at high speed. Several minutes later, the car stopped for a moment under a viaduct and Mack and Terrell unsuccessfully attempted to flee on foot. The police apprehended them and took them to the police station. Hennon, who fled in the car while the police pursued Mack and Terrell, was arrested soon after.

Later that evening, Mack and Hennon were presented in a police lineup to three of the eyewitnesses, Esau Asad, Harris, and Miller. Each identified Mack as the shooter and Hennon as the driver of the Nova. Asad Harris, and Miller, along with eyewitnesses Verrett and Murray also identified Mack and Hennon at trial as the shooter and driver respectively. They also testified that they had never seen Mack prior to the confrontation preceding the shooting. Mack, Hennon, and Terrell were subsequently indicted and charged with first-degree murder and armed violence for the shooting of Abdulah Asad, and attempted first-degree murder, aggravated battery, and armed violence for the shooting of Jason Murray.

C. The Trial

All three defendants were tried in front of the same judge. As a preliminary matter, the judge severed the trials of all three defendants, but ordered that Mack and Hennon be tried simultaneously before separate juries; Terrell's case was set for a later date because it was not in a posture to go to trial.

The judge ordered that at Mack and Hennon's trials, the government would present its case in front of both juries, but the individual juries would hear only the cross-examination conducted by the defendant's attorney whose case that jury was deciding. In other words, when Mack's attorney cross-examined the government's witnesses, Hennon's jury would be excused, and vice versa. Mack's defense case would then proceed, as his name was first on the indictment. At the conclusion of Mack's defense the case would be sent to the jury hearing his case and Hennon would proceed with his defense. ³ Both Mack's and Hennon's attorneys timely objected to this approach, preserving the issue for appeal.

D. Mack's Defense

At trial, Mack's sole theory of defense was misidentification--that he was not the gunman. Mack testified that although he had been in the Nova when it arrived at the park, and although he had been in the Nova shortly after the shooting when it was fleeing from the police, he had not been in the Nova during the time period in between, when somebody else riding in the Nova had shot at the boy and the witnesses from the front passenger's window. Mack testified that following the initial confrontation by the park, he had entered the Suzuki and another member of the gang, Terrance Hill, had entered the Nova in his place. Mack also testified that upon leaving the park, he rode in the Suzuki to his grandmother's house where he also lived. He remained there for fifteen minutes with his aunt, his uncle, one of his uncle's friends, and his grandmother. According to Mack, Hennon then drove up in the Nova with Terrell and they spoke for four minutes before Mack got into the Nova with them and drove off. Soon after, the police car began to pursue them and Hennon sped up to escape from the police. When Hennon slowed down under the viaduct, Mack and Terrell got out and attempted to flee from the police on foot but were apprehended.

To corroborate his story, Mack's aunt testified that at around 3:30 or 4:00 p.m., Mack came by and spoke with her on the steps of her mother's house. While they were speaking Terrell and another person drove up in the Nova and Mack went to the car, got in, and left. Mack's aunt testified Mack was with her for about twenty minutes before the Nova arrived. On cross-examination she admitted she had earlier told investigators that Mack had been at the house thirty minutes before the Nova arrived and that Mack had spoken with the men in the car for ten or fifteen minutes before leaving with them, for a total presence at her house of forty to forty-five minutes.

Mack also attempted to call Adrian Hennon on his behalf. Hennon had provided the police with two different versions of the events: in one statement he named Hill as the gunman, in the other he named Mack. Mack apparently believed that Hennon would now stick to the story that Hill was the gunman. Hennon, whose defense case was to follow Mack's, refused to testify pursuant to his Fifth Amendment right against self-incrimination.

On several occasions prior to calling Hennon to testify, Mack's attorney had notified the court of his intent to call Hennon. Mack's attorney also asked the court to sequence the trial so that Hennon's defense could precede Mack's, enabling Hennon to testify at his own trial before being called by Mack. However, the trial court denied Mack's request and ordered that the severed trials proceed in the order in which the defendants appeared on the indictment: Mack first, Hennon second. After Mack completed his defense, Hennon testified in his own defense before the separate jury considering his case. Hennon's testimony was consistent with his first statement to the police. He claimed that he dropped Mack off at his grandmother's house, that Hill had shot the gun, that they had dropped Hill off, picked up Mack at his...