Rodriguez v. Peters, 93-3724

• Citation: 63 F.3d 546
• Decision Date: 15 August 1995
• Docket Number: No. 93-3724,93-3724
• Parties: Joseph RODRIGUEZ, Plaintiff-Appellant, v. Howard A. PETERS, III, Director, Department of Corrections, State of Illinois, Defendant-Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)

Page 546

63 F.3d 546

Joseph RODRIGUEZ, Plaintiff-Appellant, v. Howard A. PETERS, III, Director, Department of Corrections, State of Illinois, Defendant-Appellee.

No. 93-3724.

United States Court of Appeals, Seventh Circuit.

Argued Dec. 8, 1994.

Decided Aug. 15, 1995.

Geary W. Kull (argued), Chicago, IL, for plaintiff-appellant.

Rita M. Novak, Office of Atty. Gen., Steven R. Splitt (argued), Office of Atty. Gen., Crim. Appeals Div., Chicago, IL, for defendant-appellee.

Before POSNER, Chief Judge, and REAVLEY ^* and COFFEY, Circuit Judges.

COFFEY, Circuit Judge.

Joseph Rodriguez, a juvenile of fifteen years of age, was charged in a delinquency petition with two counts of murder, filed on December 16, 1981, in the Juvenile Division of the Circuit Court of Cook County, Illinois. The State's Attorney filed a motion to transfer jurisdiction to the Criminal Division of the Circuit Court, permitting prosecution under the criminal laws of Illinois pursuant to Ill.Rev.Stat. ch. 37, par. 702-7. ¹ On February 3, 1982, the Juvenile Court authorized the transfer of the defendant for trial as an adult in the Criminal Division of the Circuit Court of Cook County. He was charged with and convicted before a jury of murdering Joseph and Theresa Palmer, also juveniles, in violation of Ill.Rev.Stat.1981, ch. 38, par. 9-1(a)(1). Because Rodriguez was found guilty of committing more than one murder, he was sentenced to the mandatory natural life sentence, without the possibility of parole, as provided in Ill.Rev.Stat.1981, ch. 38, par. 1005-8-1(a)(1)(C). The Illinois appellate court affirmed his conviction and sentence ² and the Illinois Supreme Court denied his Petition for Leave to Appeal. Rodriguez's Petition for Writ of Certiorari was denied by the United States Supreme Court and he thereafter filed a Petition for Writ of Habeas Corpus, 28 U.S.C. Sec. 2254, in the U.S. District Court for the Northern District of Illinois. The district court denied his petition. Rodriguez appeals. We AFFIRM.

I. FACTUAL BACKGROUND

Renaldo Hernandez and Joseph Rodriguez were members of a Chicago, Illinois street gang known as the Kool Gang. In 1981, a dispute arose between this gang and the Villalobos, another Chicago street gang, allegedly because the Villalobos had one of the Kool Gang's jerseys in their possession. ³ Representatives of the two gangs met to discuss the return of the jersey and they agreed that the Kool Gang would buy it back from the Villalobos for $5 to $10. The membership of two gangs failed to consummate the agreed upon return of the jersey with the cash payment for, as Hernandez explained, each gang was afraid to enter the other gang's territory. Rodriguez met with Charles Palmer, a member of the Villalobos, later in the summer, after Palmer had agreed to inquire of his gang concerning the whereabouts of the jersey, he subsequently advised Rodriguez that the jersey had been sold.

Sometime thereafter, on December 12, 1981, around 5:30 p.m., Rodriguez and Hernandez saw Joseph and Theresa Palmer, Charles Palmer's younger brother and sister, walking towards their home and mistook Joseph for his brother, Charles. Rodriguez asked Hernandez if he wanted to kill them, and Hernandez responded that it was "up to you" (Rodriguez). Rodriguez then asked Hernandez to get the gun from his house that he was holding for Rodriguez. Hernandez returned with the weapon and handed it to the defendant. Thereafter, Rodriguez and Hernandez waited in a nearby park for Theresa and Joseph to walk past them, and after the Palmers had passed, Rodriguez and Hernandez snuck down an alley and waited for Theresa and Joseph behind the Palmer's house. As they approached, Rodriguez entered a vacant lot on the east side of the Palmer's house, positioned himself, raised his gun, and fired, mortally wounding Joseph in the back of his head. Theresa began to scream; Rodriguez fired again and silenced her with three shots to the head. Hernandez stated that he and Rodriguez then fled from the scene leaving Joseph and Theresa both lying on the sidewalk, dying from the gunshot wounds.

Hernandez was arrested three days later, on December 15, 1981, at one of his friend's houses, and Rodriguez turned himself in to the authorities five days thereafter, on December 20, 1981. On December 16, while Hernandez was in custody, the State's Attorney questioned him about his involvement in the murders. Originally he denied that he and Rodriguez were responsible for the murders to the police, but approximately one month before Rodriguez's trial, Kathleen McGury, a State's Attorney, asked him if he would be willing to testify against Rodriguez in exchange for a plea to a lesser crime. At that time, Hernandez's attorney advised him that if he were convicted of the double homicide he would be sentenced to a mandatory term of natural life in prison without the possibility of parole. After having been advised of this, Hernandez decided to accept the plea bargain and enter a plea to the lesser charge of obstructing justice, agreeing to testify for the state against Rodriguez, in exchange for the State's Attorney's recommendation that he receive a sentence of four years of imprisonment for obstruction of justice. ⁴

In addition to Hernandez, the State also called Theresa Santana to testify at trial. Santana lived in an apartment across the street from the victims and had known Rodriguez for several years, having attended both grade and high school with him. Santana testified that as she was walking down a staircase on the outside of her apartment building on December 12, 1981, she saw Joseph and Theresa Palmer walking toward their home, and at the same time observed Rodriguez, wearing black pants and a black leather jacket, across the street. Testifying about Rodriguez, she stated that "he just kept on walking and then he stopped and looked at me," but before she could speak with him, he turned and jogged back across the street toward a vacant lot. Santana continued to watch Rodriguez as he unzipped his jacket, pulled out a gun, and aimed and fired gunshots at the Palmers. As the Palmers lay fatally wounded on the sidewalk, Santana continued to watch and observed Rodriguez run across a vacant lot, enter a red car, and drive off.

At trial, Santana also testified that she spoke to the police on the evening of the shootings and gave them a description of the murderer, but Santana explained that she did never mentioned the name of the killer ⁵ because she was afraid of retaliation from members of the Kool Gang; in fact, she remained inside her house for approximately four weeks after the shooting and did not attend school because she was fearful of facing any members of Rodriguez's gang at school. The day after the killing, the police spoke with Santana again and handed her a police photo album containing pictures of members of the Kool Gang. ⁶ Rodriguez's photograph was in the book, and although Santana did not I.D. him at that time, Officer McKenna testified that he observed that as she saw the defendant's picture, she appeared to be "very nervous, visibly shaken."

After observing her reaction, Officer McKenna was convinced that Santana could identify the killer. Thus, the police returned to her house two days later with a yearbook containing a picture of her high school class. She looked through the pictures in the yearbook and pointed to and identified Rodriguez as the assailant, within seventy-two hours of the homicides. Later that month, she also identified the defendant in a police lineup in the presence of Rodriguez's attorney. Once the identifications were made, the State of Illinois placed Santana into a witness relocation program and moved her out of state. The defense made a motion in limine to preclude the prosecution from referring to the fact that Santana had been relocated and the court ruled that the prosecution could not discuss the fact of relocation unless the defense mentioned the information first.

Danny O'Neal Morris, a twenty-four year old resident of the neighborhood where the murders took place, also testified for the prosecution. He stated that he was sitting on a couch, near a window in his second floor apartment, at about 5:45 p.m. on December 12, 1981, when he heard four gunshots. He looked out the window of his apartment, which overlooks an alley adjoining the street where Joseph and Theresa were killed, and "directly below the window," he saw two young men running through the alley immediately after he heard the gunshots. Morris described one of the persons as "a little dark complected, kind of medium" in skin tone, about 5'8"' tall, approximately 160 lbs., having an afro hairstyle, and wearing a "brown jacket," and described the second man as being 5'6"' tall, weighing about 135 lbs., Latino, with a lighter complexion than the other man, black hair parted in the middle, wearing a black leather jacket, and carrying a gun in his right hand. Morris testified that he had an opportunity to observe the second man's face for a "couple seconds."

Prior to Morris's testimony at trial, the defense, at a sidebar conference, made a motion in limine to preclude Morris from making an in-court identification of Rodriguez on the ground that it would be unduly suggestive because Morris had previously observed a picture with five Latino men in it, including the defendant, ⁷ and Rodriguez would be seated at the defense table while such identification was being made. The government responded that it intended to have Morris identify the defendant from a photograph of five young Latino men in a lineup and advised the court that Morris had made no previous formal identification of the defendant before the trial. The court, over the objection of defense counsel, allowed the in-court photographic identification. ⁸ When Morris was shown the photo of the five young Latino men, he immediately identified Rodriguez as the person he saw in the alley, running with a gun in...