Parisie v. Greer
| Decision Date | 12 September 1983 |
| Docket Number | No. 80-1940,80-1940 |
| Citation | 705 F.2d 882 |
| 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, Sidley & Austin, Chicago, Ill., for petitioner-appellant.
Michael V. Accettura, Asst. Atty. Gen., Springfield, Ill., for respondent-appellee.
Before CUMMINGS, Chief Judge, PELL, BAUER, WOOD, CUDAHY, ESCHBACH, POSNER, and COFFEY, Circuit Judges, and SWYGERT, Senior Circuit Judge.
This is an appeal by John Stephan Parisie from the district court's denial of his petition for habeas corpus. A panel of this court reversed the district court and ordered the writ of habeas corpus to issue. 671 F.2d 1011 (7th Cir.1982). The state petitioned for rehearing with suggestion of rehearing en banc, contending that this court lacked jurisdiction of Parisie's appeal. Rehearing en banc was ordered. Although the usual practice of this court is to vacate the panel decision when rehearing en banc is ordered, this was inadvertently not done in the present case. However, six members of the court (Judges Pell, Bauer, Wood, Eschbach, Posner, and Coffey), a majority, believe, though for different reasons, that the panel decision should be vacated.
The court, having vacated the panel decision, has decided to affirm the judgment of the district court denying the petition for habeas corpus, although no single opinion commands the support of a majority of the court's members.
Five members of the court--Chief Judge Cummings and Judges Cudahy, Eschbach, Posner, and Swygert--believe that the court does have jurisdiction of Parisie's appeal, but they do not agree on the basis for this conclusion. Judge Swygert, joined by Chief Judge Cummings and Judge Cudahy, proposes one basis, and Judge Eschbach proposes another. Although those joining in Judge Swygert's opinion agree with Judge Eschbach's alternative basis, as does Judge Posner, Judge Eschbach and Judge Posner do not agree with the basis for jurisdiction proposed in Judge Swygert's opinion. The remaining members of the court (Judges Pell, Bauer, Wood, and Coffey), for reasons stated in Judge Wood's opinion, believe that the court does not have jurisdiction of Parisie's appeal.
A majority of the court (Judges Pell, Bauer, Eschbach, Posner, and Coffey) believes that if there is appellate jurisdiction, the court can decide the merits of the appeal even though the petition for rehearing was limited to the question of jurisdiction. Chief Judge Cummings and Judges Cudahy and Swygert disagree for the reasons stated in Judge Swygert's opinion, and Judge Wood (joined by Judge Cudahy) believes that, if the merits are to be reached, the proper course would be to order reargument on the merits.
With regard to the merits, four judges--Judges Pell, Bauer, Posner, and Coffey--believe that the judgment of the district court should be affirmed. Judge Eschbach believes the case should be remanded for the reasons stated in Judge Cudahy's dissenting opinion from the panel decision. Chief Judge Cummings and Judges Cudahy and Swygert, believing that the panel majority opinion should be retained, would reverse the district court. (Part III of Judge Swygert's opinion explains why he believes the panel decision is correct on the merits.) Since the court is divided equally on whether to affirm the district court, on the one hand, or reverse it and remand the case, on the other, the district court's decision is affirmed, the panel decision having been vacated herewith. A similar conclusion is reached by observing that four members of the court believe there is no appellate jurisdiction and that a fifth, Judge Posner, believes there is jurisdiction but that the district court's decision should be affirmed on the merits. Thus, five members of the court believe, though for different reasons, that the judgment of the district court should not be disturbed.
For the reasons stated, the panel decision is VACATED and the judgment of the district court is AFFIRMED.
I quote from the opinion of the Illinois Appellate Court in a recitation of certain facts in this case, not contested in the proceedings before this court.
A deputy sheriff testified that the defendant was found asleep in the decedent's car at 5:22 A.M. the same morning [that the decedent was found] and that there was blood on the left front seat, left door and left rear fender of the car. When he was apprehended, the defendant had the decedent's driver's license and credit cards in his own wallet, and he had the victim's cigarette lighter and wallet (containing checks and papers of the decedent) in his pocket. The decedent's sport jacket was found folded on the back seat of the car and in the pocket was decedent's gold wedding ring. The defendant was placed under arrest and remained in the county jail until trial. At the jury trial, Parisie testified on his own behalf and admitted that he shot deceased. He also admitted that he had stolen the pistol used to kill the decedent during a burglary a few days earlier and that he had fired the pistol in his hotel room before the shooting of the decedent. Parisie was found guilty by the jury and was sentenced by the court to a penitentiary term of 40 to 70 years.
The defense was that of insanity--insanity based upon "homosexual panic." The single constant thread woven throughout the fabric of this appeal is the issue of homosexuality and the theory of defendant attempting to equate "homosexual panic" with insanity. And since this theory underlies some of the specific issues raised, we will consider it at the outset.
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On the third day of voir dire the defense presented to the court an affidavit of one of the defendant's lawyers wherein he stated that three persons who were presently incarcerated (one in a Tennessee jail, another in an Illinois penitentiary and a third at the Illinois State Farm), if called to testify, would state that each, respectively, had homosexual relations with the decedent, knew decedent's reputation in the community was that of a homosexual, and that decedent had been observed in a "known homosexual hangout" holding hands with another male person. The affidavit was signed by defense counsel and alleged that it was based upon interviews conducted by an investigator.
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Defendant offered [the same] three witnesses to testify relative to decedent's homosexual reputation. All three witnesses were called to the stand, gave their names and their addresses, and then objection by the prosecution to their further testimony was sustained. The only offer of proof made by defense counsel as to what they would testify to came from defense counsel themselves. In the case of the first witness, defense counsel merely stated in chambers that the first witness would testify to three specific acts of homosexuality with the deceased and that the decedent's reputation in the community was that of a homosexual. There was not even that much offer of proof on the other two witnesses, since counsel simply stated that they adopted as offer of proof the affidavit previously filed. When we turn to that affidavit we find that it is one executed by one of defense counsel, containing a mere recitation that the two witnesses had seen decedent in known homosexual locations. The "offer of proof" regarding all three of these witnesses is patently inadequate. They amount to nothing more than conclusionary, broad-sweeping statements of defense counsel and offer no acceptable foundation for admission as reputation evidence. "This court, on numerous occasions, has held that reputation witnesses must be shown to have adequate knowledge of the person queried about and that evidence of reputation, to be admissible, must be based upon contact with the subject's neighbors and associates rather than upon the personal opinion of the witness." People v. Moretti, 6 Ill.2d 494, 129 N.E.2d 709, 725. Obviously, the form in which this offer of proof comes to us is insufficient to accommodate the well settled state of the law in this area.
People v. Parisie, 5 Ill.App.3d 1009, 287 N.E.2d 310, 313, 317, 324-25 (1972).
The panel majority opinion brushed aside the fact that the offer of proof failed to meet the standards of Illinois law and rather casually reversed not only this case but the holding of the Supreme Court of Illinois in the Moretti decision.
It is worth noting that the state trial court and the state appellate court each addressed the relevancy question and the offer of proof and found against the defendant. As Judge Cudahy pointed out in his dissent to the original panel opinion, this issue was never addressed or developed by the district court in the case before this court. Judge Cudahy, in footnote 2 of his dissent, stated properly that:
the majority ... [argues] that the proffered testimony "involved a great deal more than mere reputation evidence" because the witnesses allegedly would testify about "actual homosexual acts and manifestations" attributed to the victim. Ante, at 1014. But I think under Illinois law evidence of prior homosexual acts may not be admitted to prove reputation. See People v. Moretti, 6 Ill.2d 494, 129 N.E.2d 709, 725-26 (1955), cert. denied, 356 U.S. 947 [78 S.Ct. 794, 2 L.Ed.2d 822] (1958). The defendant apparently did not articulate at trial or on this or prior appeals any basis other than reputation upon which the state trial judge could have admitted evidence of prior acts by the victim. Rather than joining the majority in merely asserting that the proffered evidence "involved a great deal more than reputation evidence," I believe that we should remand to the district court for a determination of the purpose for which this evidence was proffered and the state law evidentiary rules...
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