Parisie v. Greer
| Decision Date | 18 February 1982 |
| Docket Number | No. 80-1940,80-1940 |
| Citation | 671 F.2d 1011 |
| Parties | John Stephan PARISIE, Petitioner-Appellant, v. J. W. GREER, Warden Menard Correctional Center, Respondent-Appellee. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Jeffrey S. Bork, Chicago, Ill., for petitioner-appellant.
Suzan Sutherland, Asst. Atty. Gen., Springfield, Ill., for respondent-appellee.
Before SWYGERT, Senior Circuit Judge, CUDAHY, Circuit Judge, and EAST, * Senior District Judge.
THE APPEAL
The petitioner-appellant (Parisie) appeals the adverse summary judgment entered by the District Court on December 18, 1979 in his 28 U.S.C. § 2254 state prisoner habeas corpus proceedings. We note jurisdiction and reverse.
Since the facts surrounding the tragedy of Jackson and Parisie are relatively unimportant Jackson was seen leaving a scout meeting about 8:45 p. m. on Friday, April 12, 1968. About 10:45 p. m., a tow truck driver, on his way to pick up a car, found Jackson standing along a lonely country road outside the City of Springfield. Jackson said he had been shot, and he asked to be taken to a hospital. When Jackson was admitted to the hospital about 11:30 p. m., he had in his possession a money clip containing $210, a watch, and a masonic ring with a large stone which appeared to be a diamond. Jackson, after surgery, died the next morning.
to the appeal, we deem the following narration to be sufficient.
On that same morning, at about 5:20 a. m., Parisie was found asleep in Jackson's car located in Springfield. Parisie had Jackson's driver's license and a gasoline credit card in his wallet, and Jackson's wallet was in Parisie's coat pocket. Jackson's wedding ring was found in a pocket of the decedent's sports jacket, which was folded on the back seat of the car.
A grand jury returned an indictment to the Circuit Court for Sangamon County, Illinois (trial court) charging Parisie with the murder of "Chet" Jackson. 1 A trial jury found Parisie guilty of the alleged crime on January 17, 1969. On February 27, 1969, the trial court sentenced Parisie to a prison term of forty to seventy years.
At this juncture, we note that prior to trial it was apparent to the trial court, the State, and friends of the deceased that Parisie in defense would claim that the deceased made homosexual advances toward him. At that time, a private attorney representing members of the decedent's family presented a motion in limine seeking to prevent Parisie from characterizing the deceased as a homosexual. During an in-chambers hearing on November 14, 1968, the private attorney stated:
I represent the widow and three young children of the decedent. And the nature-I am informed and believe that the nature of the allegations will be devastating to the character and reputation of the decedent. They are untrue....
Although the trial court recognized that evidence of "homosexuality can be very important" and "would be admissible," it nevertheless entered an order prohibiting defense counsel from mentioning Jackson's homosexuality "in public or in the trial" (emphasis supplied).
During the first day of voir dire, the trial court asked some of the veniremen the following question:
There may be some evidence in this case of homosexuality. If the evidence should show any person whose name comes up during the trial of this case was involved in acts of homosexuality, would that fact alone create prejudice or sympathy for that person? 2
However, the trial court then reversed itself and announced that it would no longer ask such a question "until it is shown that the defendant will be prejudiced."
On the next day defense counsel moved for reconsideration of the ruling in light of the fact that there were three persons who could testify that they had had homosexual relations with Jackson, who knew his reputation in the community was that of a known homosexual and who had observed Jackson in known homosexual hangouts holding hands with other males. The motion was denied without comment.
None of the twelve jurors chosen were asked about their views on homosexuality.
The Illinois Appellate Court affirmed the conviction on June 26, 1972, People v. Parisie, 5 Ill.App.3d 1009, 287 N.E.2d 310 (1972). Attempts to secure review by the Illinois Supreme Court and through post-conviction relief proceedings were denied.
Parisie has been incarcerated since his arrest on April 13, 1968 and is currently an inmate at Menard Correctional Center in Menard, Illinois.
Parisie filed his pro se § 2254 habeas corpus proceedings in the District Court on April 3, 1979, together with supporting memoranda. On April 30, 1979, the State of Illinois, through its Attorney General, moved to dismiss the petition and cause and/or for summary judgment in its favor.
On December 13, 1979, the District Court, without holding an evidentiary hearing or reviewing the state court record, entered summary judgment against Parisie. On May 6, 1980, Parisie's motion for reconsideration was denied. An appropriate notice of appeal was filed on June 2, 1980, and on June 26, the District Court issued its certificate of probable cause for the appeal as required by 28 U.S.C. § 2253.
On July 23, 1980, Parisie filed his pro se brief for appellant and petitioned for the appointment of appeal counsel. This court on August 18, 1980 denied the State of Illinois' motion for dismissal of the appeal for want of a timely notice of appeal, and on September 4, 1980 appointed legal counsel with leave to file supplemental briefing.
Parisie presents the following issues:
1. Whether Parisie was deprived of an impartial jury:
(a) as a result of massive pretrial publicity; and
(b) when the trial court precluded him from questioning prospective jurors about bias or prejudice against homosexuality on the part of either the deceased or himself.
2. Whether Parisie was deprived of his Sixth Amendment right to present a defense when the trial court refused to allow three crucial defense witnesses to testify.
3. Whether the prosecutor's admittedly improper tactics violated Parisie's Fourteenth Amendment due process rights.
4. Whether Parisie was deprived of effective assistance of counsel.
5. Whether the cumulative effect of the errors rendered Parisie's murder trial fundamentally unfair and in violation of due process guaranteed by the Fourteenth Amendment.
Issue 2 :
Since we consider issue 2 of primary importance and dispositive of his appeal, we meet it first.
The issue under this assignment of error was raised in the Illinois Appeals Court and in Parisie's memorandum of April 13 and July 2, 1979, filed in support of his habeas petition in the District Court. Through oversight or other reasons, the State did not address the District Court on the issue. Nor did the District Court deal with the issue in the opinion of December 18, 1979, supporting the summary judgment.
Under such circumstances, it would ordinarily be the better practice to remand the issue to the District Court for the first opportunity to decide the issue. However, we have the same record before us that would be before the District Court, and the parties have fully addressed us on the issue through the briefings. Furthermore, Parisie has been in custody for more than thirteen years and has been prosecuting these habeas proceedings since April 3, 1979. The appeal was inordinately delayed by extensions of time granted for the filing of the State's briefings. In light of these circumstances, we deem that judicial expediency and the furtherance of justice demand that we meet the issue and make a disposition now.
We believe the court at trial arbitrarily adhered to its prior rulings on the motion in limine and the voir dire restriction in rejecting the testimony of three defense witnesses then before the court.
Parisie's offer of proof consisted of defense counsel's statement to the trial court that a witness would testify to having participated in three homosexual acts with the decedent and that the decedent was reputed in the community to be a homosexual. Also, defense counsel referred the trial court to an affidavit executed by another defense counsel and previously filed with the court and referred to at the hearings on the motion in limine and voir dire restrictions. This affidavit stated that two witnesses had seen the decedent in known male homosexual locations making homosexual manifestations.
The State does not dispute that the proffered testimony of the three witnesses was relevant, material and crucial to Parisie's defense. Rather, it attempts to justify the exclusionary ruling on the ground that the form of Parisie's offer of proof was defective; the state claims that defense counsel should have presented the testimony of the witnesses in camera rather than make the offer of proof himself. We believe that a prosecutor should not play cat and mouse with Sixth Amendment rights.
The same offer of proof had been made to the trial court on two prior occasions. On neither of those two occasions did the State's counsel challenge the offer on the grounds of form. It is manifest that State's counsel fully understood the nature of the testimony sought. But, if the State's counsel was not satisfied with the offer made through defense counsel's statement or wished further advice as to the witnesses' qualifications or to the substance of the proffered testimony, he should have asked, and was required to ask, for the testimony of the witnesses to be proffered in camera. Furthermore, the trial court well understood the importance of the testimony both at the time of its ruling on the motion in limine, and again when it denied defense counsel's motion for reconsideration of the ruling on the voir dire restriction. We assume the trial court still had that understanding...
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Parisie v. Greer
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