U.S. ex rel. Allen v. Rowe

• Decision Date: 08 January 1979
• Docket Number: No. 78-2140,78-2140
• Citation: 591 F.2d 391
• Parties: UNITED STATES of America ex rel. Eddie ALLEN, Petitioner-Appellee, v. Charles J. ROWE et al., Respondents-Appellants.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 391

591 F.2d 391

UNITED STATES of America ex rel. Eddie ALLEN, Petitioner-Appellee, v. Charles J. ROWE et al., Respondents-Appellants.

No. 78-2140.

United States Court of Appeals Seventh Circuit.

Argued Dec. 8, 1978.

Decided Jan. 8, 1979.

Patrick J. Calihan, Asst. Atty. Gen., Crim. Justice Div., Chicago, Ill., for respondents-appellants.

Ralph Rueben, Deputy State App. Defender and Randy K. Johnson, Asst. State App. Defender, Chicago, Ill., for petitioner-appellee.

Before SWYGERT, LAY ^* and PELL, Circuit Judges.

PER CURIAM.

This case presents the question whether a criminal defendant's Fifth and Fourteenth Amendment rights were violated when a state prosecutor was permitted at trial to cross-examine the defendant about his silence during police custody and to comment Petitioner, Eddie Allen, was tried and convicted of murder in a jury trial in the Circuit Court of Peoria County. On June 21, 1974 Allen was sentenced to a prison term of eighteen to fifty years. The conviction was affirmed by the Illinois Appellate Court, Third Judicial District. People v. Allen, 37 Ill.App.3d 619, 346 N.E.2d 486 (1976). The Supreme Court of Illinois denied Allen's leave to appeal, and the United States Supreme Court denied his petition for a writ of certiorari. Allen v. Illinois, 430 U.S. 956, 97 S.Ct. 1603, 51 L.Ed.2d 806 (1977).

upon his silence before the jury during closing argument. We agree with the district court's conclusion that defendant-petitioner's rights were violated and affirm the court's order granting petitioner's motion for summary judgment, vacating the judgment of conviction, and remanding the case for a new trial.

Allen filed a petition for federal habeas corpus relief, 28 U.S.C. § 2254, in the United States District Court for the Southern District of Illinois, on February 8, 1978. On July 24, 1978 the district court granted Allen's request for habeas relief, and allowed the State of Illinois ninety days to either give Allen a new trial or release him. The State appealed the district court's order on August 16, 1978 and, on October 6, the district court stayed its July 24 order pending this appeal.

Allen shot and killed his wife on January 3, 1974. Allen called the police, and when an officer arrived and asked him what had happened, Allen answered, "I shot my wife." A few moments later, as he was being searched, Allen added that the gun was on a table in the house and that his wife was hurt "pretty bad." Allen was read his Miranda warnings and said nothing more. (These facts are described in more detail in Judge Morgan's Decision and Order which is attached as an appendix to this opinion.)

At trial, the prosecutor, in order to undermine Allen's self-defense theory of justification, cross-examined Allen about his silence in the wake of the shooting. Later, in his closing argument to the jury, the prosecutor argued that Allen's silence was inconsistent with his self-defense contention. The district court concluded that these prosecutorial actions violated the Fifth Amendment standards established in United States v. Hale, 422 U.S. 171, 95 S.Ct. 2133, 45 L.Ed.2d 99 (1975), and Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976), and that these violations did not constitute harmless error. See Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967). We agree, and adopt the thorough and well-reasoned decision of Judge Morgan.

AFFIRMED.

DECISION AND ORDER

Petitioner is presently a prisoner seeking the issuance of a writ of habeas corpus under the provisions of 28 U.S.C. § 2254. He is being held in state custody at the Pontiac Correctional Center, Pontiac, Illinois. He contends that he is confined unlawfully because his right to remain silent under the Fifth and Fourteenth Amendments to the United States Constitution was unlawfully denied him when the prosecutor was allowed to cross-examine petitioner about his silence during custody and to comment upon his silence before the jury during closing argument. This court has determined that under established law petitioner's constitutional right to remain silent was infringed, and that this infringement was not harmless error. Accordingly, petitioner's motion for summary judgment must be allowed, and respondent's motion to dismiss must correspondingly be denied.

Petitioner was tried and convicted of the murder of his wife, in a jury trial in the Circuit Court of Peoria County. A sentence of imprisonment for a term of 18 to 50 years was imposed. Petitioner appealed his conviction to the Appellate Court of Illinois, Third Judicial District. People v. Allen, 37 Ill.App.3d 619, 346 N.E.2d 486 (1976). One of the issues raised on appeal was whether petitioner's constitutional right to remain silent was violated by the prosecutor's cross-examination and closing argument to the jury. In a split decision, the state Appellate Court held that petitioner's right to remain silent under the Fifth and Fourteenth Amendments had not been violated.

Subsequently, Allen petitioned for leave to appeal to the Supreme Court of Illinois and for a writ of certiorari in the Supreme Court of the United States. Both petitions were denied. 430 U.S. 956, 97 S.Ct. 1603, 51 L.Ed.2d 806 (1977). Thus, it appears that petitioner has exhausted his state judicial remedies and is properly before this court pursuant to the provisions of 28 U.S.C. § 2254.

I

There is no dispute about the fact that Allen shot and killed his wife. The shooting took place on January 3, 1974 at approximately 3 p. m. Following Allen's call to the police, Officer Terry Melloy of the Peoria Police Department was dispatched to investigate a shooting at the home of Margaret and Daniel Moore. Upon his arrival at the Moore residence, Officer Melloy was met at the sidewalk by Allen. Melloy testified that Allen appeared calm and showed no emotion whatsoever. When asked by the officer what happened, Allen replied, "I shot my wife." As the officer was patting him down for weapons, Allen told Officer Melloy that the gun was on a table inside the house and that his wife was hurt "pretty bad."

At this point, Allen and Officer Melloy entered the Moore house. The officer sat Allen down on a couch and assisted another officer in administering first aid to Mrs. Allen. While the other officer was attending to the victim, Officer Melloy read Allen his Miranda warnings, which included the admonishment that, "Anything you say can and will be used against you in a court of law." Allen acknowledged that he understood his rights and said nothing further.

At trial, Allen relied on a self-defense theory of justification. During the prosecutor's cross-examination of Allen, the following colloquy took place, over objection of defense counsel, which colloquy serves as the basis for petitioner's Fifth Amendment claim:

"Q. (State's Attorney) Would you explain that information you gave to Officer Terry Melloy concerning your fears for you (sic) life and efforts of self defense when he came up to the house after you called?"

Defense counsel objected to this question; the objection was sustained and the jury was instructed to disregard it.

"Q. (State's Attorney) Now, Mr. Allen, when the police show (sic) up pursuant to your call on January 3, 1974, at 431 West 7th in Peoria, and you talked to Officer Melloy, you never mentioned any fear for your life did you?

DEFENSE COUNSEL: Same Objection.

THE COURT: Overruled.

A. Would you repeat the question?

Q. When the police showed up at 431 West 7th on January 3, 1974 pursuant to your call, you never told them you were in fear for your life from your wife did you?

A. No.

Q. In fact, you never told any law enforcement officer this did you?

A. No, I didn't.

Q. In fact, the first statements regarding this are from the stand in this trial aren't they?"

Out of the presence of the jury, defense counsel objected to this line of questioning on the ground that the prosecution may not permissibly comment about a defendant's refusal to make a statement, and moved the court to declare a mistrial. The objection was overruled and the motion for mistrial denied.

"Q. (State's Attorney) Would you repeat the question?

COURT REPORTER: In fact, the first statements regarding this are from the stand in this trial aren't they?

A. Yes.

Q. Now this King and Lemons that testified here, you never mentioned them before trial, did you?

A. No sir, I didn't."

The State's Attorney made the following statements to the jury during closing argument:

"Now, when by the way, did the defendant first say self-defense? Did he say this to officer Terry Melloy, I just shot my wife, I had to do it, she came at me with a knife in the kitchen! Did he say that? Did he say, she was going into her purse, I thought she had a gun, I had to shoot her! Or did he even say, I shot my wife in self-defense. No, none of those. He said very calmly, according to Officer Melloy, I just shot my wife, she is pretty bad, she is in there, the gun is on the table. In a calm way."

"After he shot his wife five times and stood over her (indicating) and sent the hammer home on an empty cylinder, did he then say, oh my God, I had to do it, I thought she was going for a gun. No, what he said was, she's dead now. The defendant could not say self-defense because there was no self-defense. The defendant is a cold blooded, brutal murder (sic)."

The evidence relating to the events which occurred immediately prior to the fatal shooting consisted entirely of the conflicting testimony of Margaret Moore, Mrs. Allen's sister-in-law, and that of Allen himself.

Mrs. Moore testified on behalf of the State, that on the date of the incident, January 3, 1974, Allen and his wife were separated and Mrs. Allen was residing with the Moores. She testified that Mrs. Allen returned from work to the Moore home at approximately 3 p. m.; that Allen arrived a short time later; that upon Allen's arrival Mrs. Moore went to the bathroom to do some mopping,...