U.S. ex rel. Blackwell v. Franzen, s. 82-1125

• Decision Date: 13 September 1982
• Docket Number: 82-1509,Nos. 82-1125,s. 82-1125
• Citation: 688 F.2d 496
• Parties: 11 Fed. R. Evid. Serv. 771 UNITED STATES of America ex rel. Leon BLACKWELL, Petitioner-Appellee, Cross-Appellant, v. Gayle M. FRANZEN and Marvin Reed, Respondents-Appellants, Cross-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 496

688 F.2d 496

11 Fed. R. Evid. Serv. 771

UNITED STATES of America ex rel. Leon BLACKWELL Petitioner-Appellee, Cross-Appellant, v. Gayle M. FRANZEN and Marvin Reed, Respondents-Appellants Cross-Appellees.

Nos. 82-1125, 82-1509.

United States Court of Appeals, Seventh Circuit.

Argued May 28, 1982.

Decided Sept. 13, 1982.

Kenneth A. Fedinets, Asst. Atty. Gen., Chicago, Ill., for respondents-appellants, cross-appellees.

Prentice H. Marshall, Jr., Chicago, Ill., for petitioner-appellee, cross-appellant.

Before BAUER, WOOD and COFFEY, Circuit Judges.

HARLINGTON WOOD, Jr., Circuit Judge.

Petitioner Leon Blackwell was convicted in the Circuit Court of Cook County of murder and burglary. After the Illinois Court of Appeals affirmed, People v. Blackwell, 76 Ill.App.3d 371, 31 Ill.Dec. 952, 394 N.E.2d 1329 (1st Dist. 1979), petitioner filed for a writ of habeas corpus in federal district court, claiming that the conviction violated his Sixth and Fourteenth Amendment right to confront witnesses against him. The District Court granted the writ. For the following reasons, we reverse in part and affirm in part. 540 F.Supp. 151.

I

Petitioner's claim focuses on the testimony and cross-examination of the State's principal witness Harris Orange. Orange, who was the State's sole occurrence witness, admitted to participating with petitioner in the burglary of the home of Agnes Bookham. Based on his testimony, the State was able to show that petitioner was responsible for murdering Agnes Bookham during the course of that burglary.

Defense counsel on cross-examination tried to impeach Orange's credibility as a witness. Orange admitted that his attorney had arranged a deal with the State whereby in exchange for his testimony against petitioner and a guilty plea to burglary, the State would, after petitioner's trial, drop the murder charge against Orange and recommend a reduced sentence of two to six years. Orange acknowledged that with credit for "good time" and time already served in county jail he would be released in one or two months. He further testified that, upon the State's recommendation, his bail had been reduced from $150,000 to $5,000 and he had been moved out of the general population of the county jail to the more comfortable "witness quarters." Defense counsel then questioned Orange about whether the deal obligated him to incriminate petitioner:

Q: Mr. Orange, it is your understanding of this deal, is it not, that if you were to change your testimony now from the way you explained it yesterday, to (the prosecution), you could lose this deal, isn't that correct?

A: No.

Q: In other words, you can say that you want to say now, without any worry of losing that deal?

A: Say what's on my statement.

On redirect, the State attempted to rehabilitate Orange by admitting a statement Orange had made to police shortly after his arrest but before he was charged with murder. No promises of leniency had been made until nearly one year later. That statement implicated both Orange and petitioner in the burglary, but blamed petitioner for the murder. Orange identified the statement as his and agreed that it was substantially identical to his courtroom testimony.

Defense counsel, on recross-examination, questioned Orange about the voluntariness of that statement. Orange stated that for about three hours following his arrest he was physically intimidated by the police to make a statement. He admitted that he was struck on the head and shoulder, kicked in the leg, and burned by a cigarette. ¹ Orange, however, denied that he made the statement because of any beating, though he did say that he had told the state's attorney that he had been beaten. Defense counsel then asked whether Orange had talked to his attorney at any time before or during his preliminary hearing. The State objected. In response, defense counsel gave a summary offer of proof He denied that that statement was the truth. He said to a lawyer that was appointed for him that he was beaten into making that statement. That he did not participate and that Blackwell did not participate in this, and that the only reason he knew what to say in the statement, was because of what the policeman told him over a two-day period. I suggest that the State is using this statement to show a prior occasion he was consistent without a deal, and I'm saying, the fact it isn't really being consistent, it goes to his credibility, and that it is an issue here.

Sustaining the objection, the court concluded that "the danger of having you go into testimony of that nature, which should be protected by the attorney-client privilege, really overrides any relevancy it may have to the issues in this case" and that the privilege "should be invaded only where it is clear that there is a connection." Defense counsel continued his line of questioning:

Q: Was the statement which you made in police custody which you have indicated was made August 30, 1975, was that statement a voluntary statement on your part, is that-was it given of your own free will, or was it forced out of you, so to speak?

A: It was given of my own free will.

Q: Did you ever attempt to challenge the voluntariness of that statement in a courtroom?

A: Yes, my lawyer did.

Q: Was that after conversation with-had between you and your lawyer?

The court again sustained an objection by the State:

The Court has to take notice that in a very high percentage of the charges before this Court, there are motions to suppress made, and those motions are made after the attorneys-after the attorney determines that is the best course of action to be taken on behalf of the client, and the Court does not feel that the probative value of the questions here warrant the pursuit of that line of questioning. The Court assumes that a motion to suppress was made, and that the witness did say that he was beaten, and it was involuntarily, but that's not probative to anything. So, as far as the Court is concerned, the objection will be sustained. ²

The Illinois Court of Appeals, in affirming the conviction, ruled that the trial court had properly exercised its discretion in limiting the scope of cross-examination and that petitioner had suffered no prejudice. 76 Ill.App.3d at 378-79, 31 Ill.Dec. at 958, 394 N.E.2d at 1335. Agreeing with the trial court, the appellate court reasoned that a decision by Orange's attorney to challenge the confession as involuntary was not particularly probative of whether the confession was credible. The court further noted that defense counsel had been given "wide latitude in cross-examining Orange concerning the events surrounding his arrest, interrogation, confession and treatment by the police." Id. at 378, 31 Ill.Dec. at 958, 394 N.E.2d at 1335.

The District Court, however, found that the limitation placed on cross-examination violated petitioner's Sixth and Fourteenth Amendment right to confront witnesses against him. Noting that the constitutional issue was "not an easy one," the court placed great weight on the fact that "Orange's alleged statement to his attorney is the only evidence of his position after the beating but before the deal." (Original emphasis.) The court also considered the allegation that Orange recanted his confession as particularly probative in view of evidence that the confession was involuntary. An involuntary confession, the court stated, is inherently unreliable.

II

The Sixth Amendment right of confrontation requires that a defendant be given an opportunity for effective cross-examination. Douglas v. Alabama, 380 U.S. 415, 418, 85 S.Ct. 1074, 1076, 13 L.Ed.2d 934 (1965). That right, however, "is not absolute and may, in appropriate cases, bow to accommodate other legitimate interests in the criminal trial process. But its denial or significant diminution calls into question the ultimate ' "integrity of the fact-finding process" ' and requires that the competing interest be closely examined." Chambers v. Mississippi, 410 U.S. 284, 295, 93 S.Ct. 1038, 1045, 35 L.Ed.2d 297 (1973) (citations omitted).

In Davis v. Alaska, 415 U.S. 308, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974), the Supreme Court considered whether a witness privilege so limited cross-examination that it violated the defendant's right of confrontation. The direct testimony of the prosecution's "crucial witness' in that case identified the defendant as one of the men he had seen standing alongside a car near where a stolen safe was later discovered. The prosecution sought, and the trial court granted, a protective order preventing the defense from referring to the witness' juvenile record during cross-examination. That order, based on an Alaska statute designed to protect the anonymity of juvenile offenders, prevented defense counsel from showing that at the time the witness was assisting the police in identifying the defendant the witness was on probation for burglary. As the Court noted, the witness "might have been subject to undue pressure from the police and made his identifications under fear of possible probation revocation." Id. at 311, 94 S.Ct. at 1107.

The Davis Court held that the interests in nondisclosure of juvenile records "is outweighed by the defendant's right to probe into the influence of possible bias in the testimony of a crucial identification witness." Id. at 319, 94 S.Ct. at 1111. The Court recognized that exposure of the witness' biases, prejudices, or ulterior motives, as opposed to a mere general attack on credibility, is an important function of the constitutionally protected right of cross-examination. Id. at 316-17, 94 S.Ct. at 1110. While stating that the trial judge has "broad discretion," the Court found that the cross-examination that was permitted was not adequate to develop the issue of bias to the jury. Id. at 318, 94 S.Ct. at 1111. Defense counsel had been permitted to ask the witness whether he was biased, but was unable to develop a record from which to argue why the...