Rivera v. Director, Dept. of Corrections, State of Ill., 90-1439

• Decision Date: 27 September 1990
• Docket Number: No. 90-1439,90-1439
• Citation: 915 F.2d 280
• Parties: 31 Fed. R. Evid. Serv. 455 Angelo RIVERA, Petitioner-Appellant, v. DIRECTOR, DEPARTMENT OF CORRECTIONS, STATE OF ILLINOIS, Respondent-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 280

915 F.2d 280

31 Fed. R. Evid. Serv. 455

Angelo RIVERA, Petitioner-Appellant, v. DIRECTOR, DEPARTMENT OF CORRECTIONS, STATE OF ILLINOIS,

Respondent-Appellee.

No. 90-1439.

United States Court of Appeals, Seventh Circuit.

Argued Aug. 8, 1990.

Decided Sept. 27, 1990.

James H. Reddy, Office of the Public Defender of Cook County, Chicago, Ill., for petitioner-appellant.

Richard S. London, Asst. Atty. Gen., Office of the Atty. Gen., Chicago, Ill., for respondent-appellee.

Before POSNER and EASTERBROOK, Circuit Judges, and ESCHBACH, Senior Circuit Judge.

POSNER, Circuit Judge.

After being convicted of murder following a bench trial and sentenced to sixty years in prison, and after exhausting his state remedies, Angelo Rivera brought this action for federal habeas corpus, and having been turned down by the district judge appeals. There is only one issue, whether the refusal to allow into evidence at Rivera's murder trial the confession of his co-defendant (who was tried separately), which exculpated Rivera, denied Rivera due process of law.

Early one morning the body of Zelia Simmons was found in an alley in Chicago. She had been beaten to death. A trail of blood led to the residence of Richard Norman. The police arrested him, and he confessed that night. The confession, which stated that he alone had beaten her, was placed in evidence against him at his trial, and he was convicted and sentenced to spend the rest of his life in prison. Jeffrey Meger had been with Norman, Zelia Simmons, and Angelo Rivera, the appellant in this case, in a basement room of Norman's building, where the beating took place. Meger testified that he saw Rivera hit Simmons with a hammer. This testimony was consistent with a statement that Meger had given the police almost a week after the murder. The earliest statements that Meger had given had not, it is true, implicated Rivera, but he explained that this was because Rivera had threatened him and it was only after Rivera had been taken into custody that he dared to point the finger at him. Meger's testimony was the only evidence that Rivera had participated in the murder. Rivera tried to introduce Norman's confession at his trial, because it exculpated him, but this was refused on the ground that under Illinois law the availability of the out-of-court declarant (Norman) for cross-examination is a sine qua non of the admission of hearsay evidence. Norman was unavailable because he intended, if called as a witness in Rivera's trial, to plead his right not to be forced to incriminate himself. United States v. Garcia, 897 F.2d 1413, 1421 (7th Cir.1990).

Without the confession, it was Rivera's word against Meger's. The confession thus was vital evidence. The Supreme Court held in Chambers v. Mississippi, 410 U.S. 284, 302, 93 S.Ct. 1038, 1049, 35 L.Ed.2d 297 (1973), that "the hearsay rule may not be applied mechanistically to defeat the ends of justice." The due process clause entitles a criminal defendant to demand, irrespective of the state's hearsay rule, a trial "adequate to separate the guilty from the innocent." Gomez v. Greer, 896 F.2d 252, 254 (7th Cir.1990). So if the defendant tenders vital evidence the judge cannot refuse to admit it without giving a better reason than that it is hearsay. No better reason was given in this case. The state court judge (who apparently never read the confession) gave as the reason for excluding it that Norman would not be available to be cross-examined in Rivera's trial. But he was unavailable in the same sense in his own trial, in which the state introduced the confession in evidence against him. He could have testified contrary to the confession, but by taking the stand to do this he would have been opening himself to questioning that might have incriminated him--the very prospect that made him unavailable in this case. The admission of the confession at Norman's own trial did not trip over the hearsay rule, but this was not because he was available to testify at that trial. The confession, insofar as it implicated him, was within the familiar exception to the hearsay rule for statements against penal interest. That exception was inapplicable to the use of Norman's confession in Rivera's trial, since exculpating Rivera was not against--not directly against, in any event--Norman's penal interest. In addition, in Norman's trial but of course not in Rivera's, Norman's confession was the admission of a party opponent, and therefore admissible in evidence irrespective of the hearsay rule. Fed.R.Evid. 801(d)(2); Ill.R.Evid. 15:34.

At argument the state gave a different reason for excluding Norman's confession from the Rivera trial--that it was contradicted by Meger's testimony and therefore was unreliable. There is no "therefore." Rivera's whole purpose in wanting to place the confession in evidence was to challenge the reliability of Meger's testimony. It begs the question to assume that Meger's testimony was reliable, implying that any contrary evidence would be unreliable. The state gave another silly reason: the confession had been made to the police rather than to a close friend, as in Chambers. The Supreme Court does not sit to decide cases that will control only cases having identical facts. The confession was reliable enough to be used to put Norman away for the rest of his life, and no reason is suggested why, if only it had been made to a close friend--but not otherwise--it would be reliable evidence of Rivera's innocence as well. The state even...