Smith v. Fairman

• Decision Date: 09 November 1988
• Docket Number: No. 86-3018,86-3018
• Citation: 862 F.2d 630
• Parties: 27 Fed. R. Evid. Serv. 28 Gregory SMITH, Petitioner-Appellant, v. James W. FAIRMAN, Jr., Warden, Joliet Correctional Center, People of the State of Illinois, and Neil F. Hartigan, Attorney General of Illinois, Respondents-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 630

862 F.2d 630

27 Fed. R. Evid. Serv. 28

Gregory SMITH, Petitioner-Appellant, v. James W. FAIRMAN, Jr., Warden, Joliet Correctional Center,

People of the State of Illinois, and Neil F.

Hartigan, Attorney General of Illinois,

Respondents-Appellees.

No. 86-3018.

United States Court of Appeals, Seventh Circuit.

Argued June 7, 1988.

Decided Nov. 9, 1988.

Peggy Healy, Law Student, Loyola Univ. Law School, Chicago, Ill., for petitioner-appellant.

Marcia L. Friedl, Office of Ill., Atty. Gen., Chicago, Ill., for respondents-appellees.

Before CUDAHY and RIPPLE, Circuit Judges, and ESCHBACH, Senior Circuit Judge.

RIPPLE, Circuit Judge.

On May 4, 1982, following a jury trial in the Circuit Court of Cook County, Illinois, Gregory Smith was convicted of murder, attempted murder, home invasion, burglary, and armed violence. Mr. Smith appealed his conviction to the Illinois Appellate Court and that court affirmed the conviction in part. ¹ People v. Smith, 127 Ill.App.3d 622, 83 Ill.Dec. 27, 469 N.E.2d 634 (1984). The Supreme Court of Illinois denied Mr. Smith's petition for leave to appeal on February 5, 1985. Mr. Smith then filed a pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. Sec. 2254. He challenged his conviction on the following grounds: 1) that the "death qualification" of prospective jurors pursuant to Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968), violated his sixth amendment right to be represented by an impartial jury representing a fair cross-section of the community; 2) that the trial court erred in refusing to permit testimony that would have impeached the State's hearsay declarant, and that the error was not harmless; and 3) that the prosecutor's references during closing argument to Mr. Smith's failure to testify violated his fifth amendment privilege against self-incrimination. The district court denied Mr. Smith's petition for habeas relief in an unpublished order. For the reasons set forth in this opinion, we affirm the judgment of the district court.

I Background

The Illinois Appellate Court summarized the facts underlying Mr. Smith's conviction. That rendition must serve as the basis of our review. See Sumner v. Mata, 449 U.S. 539, 545-46, 101 S.Ct. 764, 767-68, 66 L.Ed.2d 722 (1981). Accordingly, we set forth that account.

Regina Tatton resided in a two-story home at 7042 South Bell in Chicago. Tatton's niece, Marian Hyllen, and Hyllen's adult son, Edward Boyle, resided with Tatton. On the night of March 26, 1981, Tatton, Hyllen, and Boyle were asleep in their respective upstairs bedrooms; Boyle closest to the stairway, Tatton furthest from the stairs and Hyllen in between. At about 1:20 a.m. on March 27, Tatton was fatally stabbed by an intruder.

Hyllen testified that she woke up and started into Tatton's bedroom when she heard Tatton scream. Before she entered the bedroom, Hyllen saw Boyle run out of Tatton's room and down the stairway and she heard Boyle scream "Greg, you S.O.B." Hyllen entered Tatton's bedroom and again heard Boyle scream "Greg, you S.O.B." Boyle then came back upstairs to Tatton's room and said to Hyllen "that's okay, ma, I know where to get Greg."

Officer Stanley Wonsowicz and his partner arrived at Tatton's home at about 1:25 a.m. on March 27. Boyle met Wonsowicz at the door and Wonsowicz noticed that Boyle was bleeding. Boyle told the officer not to worry about him but rather [to] attend to his aunt who was upstairs. Officer Wonsowicz proceeded with Boyle up to Tatton's bedroom. The officer observed Tatton lying on her back while bleeding from her chest. Boyle was standing in the bedroom doorway. Over defense counsel's objection, Wonsowicz was permitted to testify that Boyle said "I can't believe Greg Smith did it." The officer then took Boyle downstairs to question him about the stabbing.

Once downstairs, Boyle told the officer that he was awakened by Tatton's scream and he went to his doorway where he saw Gregory Smith run out of Tatton's bedroom. Boyle told the officer that he fought with Smith and that Smith cut Boyle's back and finger. Boyle pointed to a pair of shoes lying on the kitchen floor and stated that they belonged to Smith. Wonsowicz also testified that Boyle said to him "why don't you get that sonofabitch [sic] Greg." Boyle stated that Smith had been wearing red pants and no shoes.

Edward Boyle died prior to Smith's trial.

The police subsequently went to Smith's home where his mother, Mrs. Henrietta Smith, permitted them to search. No evidence was discovered. Defendant was subsequently arrested and taken to the police station for questioning. Initially, Smith said he did not know anything about Regina Tatton's death. When Officer James Higgins told Smith that Boyle had seen Smith come out of Tatton's home, Smith said that he had been there but only as a lookout. Higgins then told Smith that Boyle said that he had struggled with Smith and Smith responded that he had not gone upstairs and that Johnny Tuck had planned everything. At this point, the police stopped questioning Smith and sought to locate Tuck.

Johnny Tuck testified that on March 26 at 4:30 p.m., he was smoking marijuana and drinking wine in front of his house with Gregory Smith. Tuck testified that Smith said he had a key to Edward Boyle's house and knew where some old coins were. Smith asked Tuck to go with him to Boyle's house but Tuck refused.

Tuck admitted having fought with Smith on several earlier occasions. There was also evidence that Tuck had assaulted one of Smith's sisters and that Mrs. Smith had filed a criminal complaint against Tuck.

After talking with Tuck, an assistant State's Attorney spoke with Smith and told him that Tuck was not verifying Smith's story. Smith then confessed to stabbing Tatton. He said he was out of work and needed money and knew that Tatton kept money in a purse next to her bed.

Lawrence Hale and his mother Rosemary testified in Smith's defense. They testified that Smith slept at their home on the night of March 26/27 and that at the time Regina Tatton was stabbed, Smith was watching television with Lawrence.

Henrietta Smith also testified in her son's defense. Defense counsel attempted to elicit from her the substance of a conversation she had with Edward Boyle after Regina Tatton's death. The State objected to this line of questioning on hearsay grounds and a sidebar conference ensued. In the conference, defense counsel stated that if allowed to testify, Mrs. Smith would [have] stated that Edward Boyle said that he did not know who he saw coming out of Tatton's room. Defense counsel also stated that Mrs. Smith had a tape recording of Boyle's statement. The court sustained the State's hearsay objection and prevented defense counsel from questioning Mrs. Smith concerning the tape.

Smith, 127 Ill.App.3d at 624-26, 83 Ill.Dec. at 30-31, 469 N.E.2d at 637-38.

II Analysis

A. Sixth Amendment Jury Representation Issues

Because Mr. Smith was accused of committing a murder during the course of a burglary, he faced a potential penalty of death. See Ill.Rev.Stat. ch. 38 Sec. 9-1(b)(6) (West 1979). Accordingly, during the voir dire of potential jurors in Mr. Smith's trial, those jurors who expressed an inability to set aside their strong opposition to the death penalty were excluded for cause. See Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968). As a result of the death-qualification procedures, eleven potential jurors were excluded for cause.

1. Challenges to "Witherspoon excludable" Jurors

Mr. Smith argues that the prosecutor's challenges for cause of potential jurors opposed to the death penalty violated his right to an impartial jury representing a fair cross-section of the community. Although this is the only sixth amendment jury representation issue that is properly before this court by virtue of Mr. Smith's having raised it in both the Illinois Appellate Court and in the district court below, this challenge is nonetheless foreclosed by the Supreme Court's decision in Lockhart v. McCree, 476 U.S. 162, 106 S.Ct. 1758, 90 L.Ed.2d 137 (1986). In McCree, the Supreme Court held that the death qualification of jurors pursuant to Witherspoon does not violate the sixth amendment's fair cross-section requirement. The Court reasoned that, even if it were to extend the fair cross-section requirement to the petit jury (which it declined to do), "Witherspoon-excludable" jurors, being defined solely in terms of shared attitudes, do not constitute a "distinctive group" for purposes of fair cross-section analysis. McCree, 476 U.S. at 174-77, 106 S.Ct. at 1765-67. McCree further held that death qualification does not violate a defendant's right to an impartial jury; a defendant has no right to a jury representing a hypothetical mix of certain viewpoints. "[A]n impartial jury consists of nothing more than 'jurors who will conscientiously apply the law and find the facts.' " Id. at 178, 106 S.Ct. at 1767 (quoting Wainwright v. Witt, 469 U.S. 412, 423, 105 S.Ct. 844, 851, 83 L.Ed.2d 841 (1985)). Thus, we conclude that the death qualification of Mr. Smith's jury did not violate the sixth amendment and he is therefore not entitled to habeas relief on this ground.

2. Prosecution's Peremptory Challenges to Other Jurors

On appeal, Mr. Smith, who is now represented by appointed counsel, also argues that he was deprived of his sixth amendment right to trial by an impartial jury and a jury representing the possibility of a fair cross-section of the community. This claim is based on the prosecution's use of peremptory challenges to exclude: 1) jurors who expressed reservations about the death penalty but who were not otherwise "Witherspoon-excludable"; 2) black jurors; and 3) white jurors who had significant contacts with blacks. We note, however, that, though Mr. Smith's habeas petition addressed the prosecutor's challenges for cause of "Witherspoon-excludable" jurors, the remainder...