Pierson v. O'Leary

• Decision Date: 06 April 1992
• Docket Number: No. 90-2759,90-2759
• Citation: 959 F.2d 1385
• Parties: Wayne PIERSON, Petitioner-Appellant, v. Michael O'LEARY, Warden, and Neil F. Hartigan, Illinois Attorney General, Respondents-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1385

959 F.2d 1385

Wayne PIERSON, Petitioner-Appellant, v. Michael O'LEARY, Warden, and Neil F. Hartigan, Illinois Attorney General, Respondents-Appellees.

No. 90-2759.

United States Court of Appeals Seventh Circuit.

Argued Nov. 1, 1991.

Decided April 6, 1992.

Frederick F. Cohn (argued), Chicago, Ill., for petitioner-appellant.

David E. Bindi, Marcia L. Friedl (argued), Asst. Attys. Gen., Office of the Atty. Gen., Terrence M. Madsen, Asst. Atty. Gen., Kathryn M. Frost, Office of the Atty. Gen., Criminal Appeals Div., Chicago, Ill., for respondents-appellees.

Before CUDAHY and FLAUM, Circuit Judges, and FAIRCHILD, Senior Circuit Judge.

FAIRCHILD, Senior Circuit Judge.

Following a jury trial in an Illinois court, Wayne Pierson was convicted of murder pursuant to Ill.Rev.Stat. ch. 38, para. 9-1 (1985) and sentenced to 28 years in prison. Pierson appealed his conviction to the Appellate Court of Illinois, First District, Fourth Division, arguing both that the trial court improperly denied his motion to suppress District Judge Hart held that habeas corpus relief was not available on Pierson's fourth amendment claims pursuant to Stone v. Powell, 428 U.S. 465, 96 S.Ct. 3037, 49 L.Ed.2d 1067 (1976), because the state courts had provided him with a full and fair opportunity to litigate those claims. Judge Hart further held that Pierson's fifth amendment claim had been waived for failure to give the state courts a fair opportunity to consider the claim. With regard to his prosecutorial misconduct claim, the district judge found that the prosecutorial comments did not misstate or manipulate the evidence and that curative instructions had been given. The district court, then, determined that the comments were not so prejudicial as to infect the entire trial and deny due process. United States ex rel. Pierson v. O'Leary, No. 89 C 5499, 1990 WL 114534, 1990 U.S.Dist.LEXIS 9401 (N.D.Ill. July 25, 1990). Pierson now appeals the denial of the petition for writ of habeas corpus.

                and that he was denied a fair trial due to prosecutorial misconduct.   The Appellate Court affirmed the judgment.  People v. Pierson, 166 Ill.App.3d 558, 117 Ill.Dec. 18, 519 N.E.2d 1185, cert. denied, 488 U.S. 925, 109 S.Ct. 307, 102 L.Ed.2d 326 (1988).   Pierson filed a petition for leave to appeal with the Illinois Supreme Court and a petition for writ of certiorari with the United States Supreme Court;  both petitions were denied.   He then filed a petition for writ of habeas corpus with the district court which was also denied
                

BACKGROUND

Michael Samawi owned a grocery store at the corner of 57th Street and South Morgan Avenue in Chicago. On the evening of January 5, 1985, Mr. Samawi and Robert Phillips, an employee, were locking the burglar gates on the store when a masked gunman came up behind them and announced a "hold up." The two men turned to face the gunman, and the gunman fired three shots, fatally wounding Mr. Samawi. The gunman then fled.

Acting on an anonymous tip, two police detectives went to Wayne Pierson's home to question him. The detectives told his grandmother that they wanted to talk to Wayne about gangs. The detectives said that they were taking Wayne downstairs to the vestibule to talk to him and that they would bring him right back. A detective directed Wayne to get into one of the waiting police cars. The detectives then drove to Alfie Jones' house and picked him up in the other police car. Pierson and Jones were taken to the police station where Pierson was taken to an interview room and left alone for one hour. During that hour Jones told the detectives that Pierson was the gunman. When the detectives returned, Pierson was given Miranda warnings, and a detective allegedly told him that if he confessed the judge would probably go easy on him and give him probation because he was a juvenile and a first-time offender. Pierson then gave a statement in which he admitted to shooting Mr. Samawi. He said he originally intended to scare Samawi but became fearful and shot when Samawi tried to grab the gun and looked as if he was pulling out a weapon.

I.

Pierson argues that the prosecutors made several statements that constituted misconduct, deprived him of a fair trial and, thus, violated his right to due process. In determining whether prosecutorial statements so infected a trial as to make it fundamentally unfair and deny the defendant his due process rights, we must determine whether the statements likely changed the outcome of the trial. United States ex rel. Shaw v. DeRobertis, 755 F.2d 1279, 1282 (7th Cir.1985). We do not consider the statements in isolation but in the context of the entire trial. Id.

Pierson asserts that the prosecutor improperly attacked the truthfulness of his attorney. In closing argument, the prosecutor stated, "That is the first half truth, the first lie that you are being given. We are here to tell you the whole story about what happened." The defense objected, and the objection was sustained. The judge then instructed the jury In reference to counsel's remarks as lying, I don't believe however that Mr. Vroustouris intended to say to you that Mr. Cohn lied. I am going to instruct the jury that counsel for both sides are entitled to argue the facts as they see them based on their theory of the case. Counsel are also entitled to argue reasonable inferences. Quite obviously they have a different point of view. Neither side when they argue their point of view is deemed to be lying. They are merely stating their point of view as they believe it is, and they are urging you to adopt that point of view. (Tr. at 463.)

The prosecutor later stated, "Counsel has been trying to keep the whole truth from you ... And has in fact not presented an entire picture of what happened that night." Defense counsel again objected, and the trial judge advised,

Counsel for both sides are directed they should not be making personal accusations against one another. The jury will disregard that statement. Counsel for both the State and the defendant are however entitled to put forth their theory of the case, and the facts and reasonable inferences to be drawn therefrom. (Tr. at 467-68.)

The prosecutor's personal attacks on the credibility of defense counsel were clearly improper, but it is not likely that they changed the outcome of Pierson's case. To determine the prejudicial effect of the statements, we must look at the contexts in which they were made and determine whether the statements related to a disputed issue of fact. If the prosecutor attacked defense counsel's truthfulness only as to an undisputed issue, then it is unlikely that the jury's decision was affected.

Since Pierson admitted to shooting Mr. Samawi, the only real issue for the jury was Pierson's mental state at the time of the shooting. The jury had to decide whether Pierson killed Mr. Samawi while attempting a forcible felony, armed robbery, or intended to kill or cause great bodily harm to Mr. Samawi or knew that such result was probable, such that he would be guilty of murder. Ill.Rev.Stat. ch. 38, para. 9-1 (1985). Alternatively, the jury could determine that he possessed an intent to kill but also had a belief that his actions were justified under the circumstances, such that he should be convicted of voluntary manslaughter rather than murder, Ill.Rev.Stat. ch. 38, para. 9-2 (1985), or they could determine that he lacked an intent to kill but his actions were reckless and likely to cause death or great bodily harm, such that he should be convicted of involuntary manslaughter. Ill.Rev.Stat. ch. 38, para. 9-3 (1985).

The prosecutor's first statement was made in the context of discussing defense counsel's assertion that the testimony of Mrs. Samawi was unimportant to the disposition of the case. Mrs. Samawi's testimony did not relate to Pierson's mental state, the disputed issue in the case. The second statement was, likewise, made in the context of discussing an undisputed issue of fact. The prosecutor was discussing the defense's assertion that the firearm examiner's testimony was unimportant because the defense would have stipulated to and had admitted that Pierson shot Mr. Samawi. The medical examiner's testimony and the defense's view of that testimony, generally, related to identification of the murder weapon, an undisputed issue, rather than Pierson's mental state. ¹ Because neither of the prosecutor's attacks on the truthfulness of defense counsel related directly to a disputed issue of fact, it is not likely that the statements affected the jury's decision.

In addition, the judge's instructions to the jury dissipated any possible prejudice from the prosecutor's attacks. The judge not only instructed the jury to disregard the prosecutor's comments but explained to the jury that each side was entitled to argue its theory of the case. The judge explained that, although the defendant's view of the evidence could be expected to differ from the state's view, neither side was considered to be lying. In light of these instructions and the unimportant nature of the statements, we hold that the statements did not so infect the trial with prejudice as to deny Pierson his due process rights.

Next, Pierson argues that the prosecutor called into question Pierson's right to the presumption of innocence and to have the state prove him guilty beyond a reasonable doubt. The prosecutor stated that the reasonable doubt standard was "designed to protect people who are falsely accused of crimes. That's the whole intent of those laws." (Tr. at 467.) After objection, the prosecutor restated his comment, "The laws ... are the same laws that are designed to protect not only innocent people accused of crimes, any person accused of a crime. Those laws are also designed to protect each and everyone of us as citizens." His first statement was not inaccurate in terms of the ultimate purpose of these rules. We apply them to every accused person until...