U.S. ex rel. Haywood v. Wolff

• Decision Date: 20 August 1981
• Docket Number: No. 80-1565,80-1565
• Citation: 658 F.2d 455
• Parties: 9 Fed. R. Evid. Serv. 320 UNITED STATES of America ex rel. Melvin HAYWOOD, Petitioner-Appellee, v. Dennis WOLFF, Warden, Joliet Penitentiary, Respondent-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 455

658 F.2d 455

9 Fed. R. Evid. Serv. 320

UNITED STATES of America ex rel. Melvin HAYWOOD, Petitioner-Appellee, v. Dennis WOLFF, Warden, Joliet Penitentiary, Respondent-Appellant.

No. 80-1565.

United States Court of Appeals Seventh Circuit.

Argued June 15, 1981.

Decided Aug. 18, 1981.

As Corrected Aug. 20, 1981.

Neal B. Goodfriend, Asst. Atty. Gen., Chicago, Ill., for respondent-appellant.

Sam Adam, Chicago, Ill., for petitioner-appellee.

Before SWYGERT, PELL, and BAUER, Circuit Judges.

PER CURIAM.

This is an appeal from a judgment of the district court, 490 F.Supp. 1154, granting an Illinois state prisoner's petition for habeas corpus and ordering his retrial or release from custody within 120 days. ¹ The principal issue presented is whether the introduction at trial of the preliminary hearing testimony of a deceased witness denied petitioner his constitutional right to confront the witnesses against him. We hold that it did not.

I

On July 2, 1972, Chicago Police Officer William Hinton was dispatched to investigate a shooting incident at an apartment building located at 1448 East 68th Street. Upon his arrival, Officer Hinton encountered Charles Stanton lying outside the building with a gunshot wound in his chest. After speaking briefly with Stanton, Hinton proceeded to a third-floor apartment where he discovered four other people who had also been shot. Three of the people, Lee Jackson, William Troop, and Melba Grate, had been shot in the head and died from their wounds. The fourth, Harry Daniels, had been shot in the leg, and both he and Stanton later recovered.

Shortly after undergoing surgery for his wounds, Stanton identified petitioner Melvin Haywood from a collection of photographs taken from the apartment as one of three men who had entered the apartment on July 2 and opened fire on the others. Based on his identification, a warrant was issued for Haywood's arrest. The warrant was not executed, however, until some two years later.

At the initial questioning following his arrest, Haywood first stated that his name was Reginald Moss and denied that he was at the apartment where the shooting occurred on July 2, 1972. When informed the police knew his true identity, he replied "Okay, then you know who I am, it's been a hard two years staying in front of you all." Upon further questioning, Haywood admitted that he had been at the apartment on the night in question, but denied having shot anyone. He stated that he was there when some guys came in "to take the place off." All of a sudden, these men, whom he had never seen before, pulled out their guns and started firing. Haywood stated that he also was wounded in the shooting, but managed to flee before police arrived. ² A preliminary hearing was held on July 11, 1974. At the hearing Charles Stanton positively identified Haywood as the person who had shot him and his girlfriend, Melba Grate, on July 2, 1972. Stanton testified he and Grate were at Lee Jackson's apartment that night with Jackson, Shirley Scott, and William Troop. He stated that Haywood and two other men arrived at the apartment sometime between 2:00 and 2:30 a. m. Shortly after the three men entered, someone hollered "Now," and shooting erupted. Stanton testified that Haywood shot him in the arm, and that he and Shirley Scott then ran to a back bedroom where he hid Scott in a closet and himself under a bed. From the bedroom he saw Haywood shoot Melba Grate in the head. Haywood then entered the bedroom and ordered Stanton to get up from behind the bed. As Stanton stood up, Haywood shot him in the stomach, and he fell back to the floor. Stanton testified that after hearing several more shots, he staggered to his feet and went into the living room where he saw Jackson, Troop, and Grate lying on the floor, each with a gunshot wound to the head. He then left the apartment to get help. ³

On cross-examination, Haywood's attorney questioned Stanton at length about the events he observed on July 2, 1972, the circumstances under which he observed them, and his subsequent efforts to assist the police in their investigation. However, the presiding judge sustained the state's objections to several questions on the ground that they were beyond the scope of the preliminary hearing. As a result, counsel was prevented from asking Stanton his present address; whether he had seen a picture of Haywood since July 2, 1972; ⁴ whether he had described to the police the person who shot him and his girlfriend; what he had said to the police when they first arrived; what his physical condition was at that time; and whether he had testified in any prior proceeding concerning the events of July 2, 1972. Most of the objections were sustained on the ground that the question sought information contained in police reports and therefore went to discovery, an area beyond the scope of a preliminary hearing under Illinois law. ⁵

After the hearing, the court entered a finding of probable cause and held the matter over to the grand jury. The grand jury returned nine indictments against Haywood charging him with the murders of Jackson, Troop, and Grate, and the attempted murder and aggravated battery against Stanton.

Unfortunately, Stanton did not live to testify at Haywood's trial. Sometime after the preliminary hearing, he died of causes which, according to the record, were unrelated to the pending proceeding. ⁶ When the prosecution announced its intention to use Stanton's preliminary hearing testimony at trial in his place, the defense responded with two separate motions. The first challenged the use of Stanton's previous testimony on the ground that Haywood had been denied an adequate opportunity to cross-examine him at the hearing because of the presiding judge's strict application of state procedural rules limiting the scope of preliminary hearings to the issue of whether there is probable cause. The second motion sought to suppress Stanton's identification of Haywood at the hearing as the man who had shot Melba Grate and himself on the ground that it was the product of an unnecessarily suggestive confrontation and its admission at trial would deny Haywood his right to due process of law.

The trial court denied both motions. It found Haywood's opportunity to cross-examine Stanton at the preliminary hearing adequate, and also concluded that the confrontation at the preliminary hearing was not suggestive and, in any event, that Stanton's identification of Haywood had a prior independent origin and was therefore reliable.

At the trial the transcript of Stanton's preliminary hearing testimony, except for certain portions relating to evidentiary objections, was read to the jury over Haywood's renewed objections. The trial judge explained to the jury that the testimony was that of a witness who could not testify before them because he had died from causes unrelated to the incident in question.

The remainder of the state's case consisted primarily of testimony by several City of Chicago police officers who were involved in the investigation. One of the officers testified that four guns were recovered from the apartment on the night of the shooting. Three were .38 caliber revolvers and the fourth was a .25 caliber automatic. The parties stipulated that ballistic tests performed by a crime laboratory technician revealed that the three bullets taken from the bodies' of Stanton, Grate, and Troop had all been fired from the same .25 caliber weapon, but that they had not been fired from the .25 caliber automatic found in the apartment. Another of the police officers testified as to Haywood's statements to the police following his arrest.

Despite its hearsay character, the state was also able to introduce through one of the police officers, Officer McKenna, Stanton's initial identification of Haywood from the collection of photographs shown him while he was still in the hospital. ⁷ On cross-examination, Officer McKenna further testified that, while in the hospital, Stanton had identified Harry Daniels and one Willie Bedgood from a second group of photographs as the other two men who had opened fire on the others. According to McKenna, Stanton had stated that Harry Daniels was the man that had jumped up just before the shooting began and hollered "Now." Defense counsel attempted to elicit from the officer whether the state had proceeded against either of the other two men identified by Stanton and, if so, what the outcome had been. In each instance, however, the state's objection on grounds of relevancy was sustained by the trial court.

The principal witness for the defense was Harry Daniels. Daniels testified that he had gone to Jackson's apartment with William Troop and that, when he arrived, Jackson and his wife were there along with Jackson's brother, Melba Grate, and Charles Stanton. Haywood arrived by himself sometime later. Daniels testified that he observed Stanton "snorting heroin," drinking and smoking marijuana during the evening, and that he appeared "mostly out of it."

Daniels stated that at one point he overheard Jackson tell someone over the telephone to bring him "a couple of spoons of heroin." Shortly thereafter, three men came into the apartment and, within minutes, began shooting. Daniels stated that people began "running all over" and that he was shot in the leg and fell on the floor. He stated that he saw Haywood during the shooting and that Haywood did not have a gun.

Lastly, Daniels testified that Stanton had identified him to the police as one of the participants in the shooting. He stated he was arrested and charged with three counts of murder, but was never brought to trial.

A Cook County jury returned verdicts of guilty on each of the charges against Haywood. Judgment was entered on the verdicts and Haywood was sentenced to concurrent prison terms of 100 to 200 years on each count of murder and 10 to 20 years on the attempted murder count, which for sentencing purposes was held...