U.S. ex rel. Shaw v. De Robertis

• Decision Date: 20 February 1985
• Docket Number: No. 84-1380,84-1380
• Citation: 755 F.2d 1279
• Parties: UNITED STATES of America, ex rel. Phil SHAW, Petitioner-Appellee, v. Richard De ROBERTIS, Warden and Neil Hartigan, Illinois Attorney General, Respondents-Appellants.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1279

755 F.2d 1279

UNITED STATES of America, ex rel. Phil SHAW, Petitioner-Appellee, v. Richard De ROBERTIS, Warden and Neil Hartigan, Illinois Attorney General, Respondents-Appellants.

No. 84-1380.

United States Court of Appeals, Seventh Circuit.

Argued Jan. 22, 1985.

Decided Feb. 20, 1985.

David E. Bindi, Asst. Atty. Gen., Chicago, Ill., for respondents-appellants.

Catherine Steege, Jenner & Block, Chicago, Ill., for petitioner-appellee.

Before ESCHBACH and COFFEY, Circuit Judges, and JAMESON, Senior District Judge. ^*

ESCHBACH, Circuit Judge.

This is an appeal from the district court's grant of a writ of habeas corpus to Phil Shaw, a prisoner at Stateville Correctional Center, Joliet, Illinois, on grounds that the prosecutor's improper comment during closing argument concerning a police report not admitted into evidence deprived Shaw of a fair trial, in violation of the due process clause of the Fourteenth Amendment. 581 F.Supp. 1397. We affirm.

I

On March 14, 1978, just before closing his liquor store on the south side of Chicago at approximately 2:00 a.m., Edward Lewis let two men into the store, one of whom pulled a gun and shot and killed Lewis. The grand jury subsequently returned an indictment charging petitioner Phil Shaw and another man, Ricardo White, with Lewis's murder. The cases were severed but tried simultaneously in the Circuit Court of Cook County, Shaw's case being tried to a jury while White's was tried to the judge.

At the trial the state sought to convict Shaw on the theory that Shaw actually fired the bullets that killed Lewis, and his case was submitted to the jury on that theory alone. White's case was submitted to the judge on an accountability theory, i.e., accomplice to murder. Thus the dispute at trial centered around two questions: (1) the identities of the two men in the liquor store, and (2) the identity of the man who pulled the trigger. With respect to the charge against Shaw, the state put on the stand three eyewitnesses to the crime: Lillian Farmer and Marva Davis (the cashiers in the liquor store) and Grandville Farmer (Lillian's husband), who was waiting outside the store in a car when the incident occurred.

In his closing argument the prosecutor abused the defense attorneys, calling them hired guns paid to mislead the jury, and frauds. After reviewing the testimony of the witnesses, emphasizing throughout the theme that the defense attorneys were trying to mislead the jury, he made the following remark:

Finally they would have you be misled by the police report in this case. You're not going to get those police reports. They're hearsay evidence. You can't have them. If you had them, you would see the truth.

Both of Shaw's attorneys objected. The judge sustained the objection but gave no curative instruction to the jury.

The jury returned a verdict of guilty, on which the court entered judgment on November 16, 1978. Shaw was sentenced to forty years imprisonment. He appealed to the Illinois Appellate Court, which affirmed his conviction. People v. Shaw, 98 Ill.App.3d 682, 54 Ill.Dec. 84, 424 N.E.2d 834 (1981) (1st Dist.). Among the assignments of error was the prosecutor's statement concerning the police report, but the Appellate Court did not comment on that statement in its opinion. The Illinois Supreme Court denied leave to appeal.

On February 19, 1982, Shaw filed a petition for a writ of habeas corpus in the district court. On February 13, 1984, the district court granted the petition, and the state's representatives now appeal.

II

The petitioner contends, and the district court found, that the prosecutor's comment on the police report was a direct violation of the Fourteenth Amendment. In order to constitute a direct violation of the Fourteenth Amendment, the prosecutor's comment must have been misconduct so egregious that it deprived the defendant of a fair trial, thus making the resulting conviction a denial of due process. Donnelly v. DeChristoforo, 416 U.S. 637, 643, 647, 94 S.Ct. 1868, 1871, 1873, 40 L.Ed.2d 431 (1974); see United States ex rel. Clark v. Fike, 538 F.2d 750, 760 (7th Cir.1976), cert. denied, 429 U.S. 1064, 97 S.Ct. 791, 50 L.Ed.2d 781 (1977). ¹

There is no question that the prosecutor's comment on the police report was serious misconduct. The prosecutor violated the fundamental rule, known to every lawyer, that argument is limited to the facts in evidence. United States v. Fearns, 501 F.2d 486, 489 (7th Cir.1974). By arguing that if the jury could see the police report, they would see the "truth," the prosecutor insinuated a knowledge of prejudicial facts unavailable to the jury and bolstered the inference that the jury was being misled. He invited the jury to rely on the unseen police report as containing additional evidence, indeed decisive evidence, supporting the state's case against Shaw. The prosecutor must have known that such argument is grossly improper and wholly avoidable.

The more difficult determination is whether the improper comment made Shaw's trial so unfair as to deny him due process. This requires determining whether it is likely that the comment changed the result of Shaw's trial. See United States v. Castenada, 555 F.2d 605, 610 (7th Cir.), cert. denied, 434 U.S. 847, 98 S.Ct. 152, 54 L.Ed.2d 113 (1977). In making this determination, we do not consider the comment in isolation but in the context of the entire trial. United States ex rel. Crist v. Lane, 745 F.2d 476, 482 (7th Cir.1984); United States ex rel. Garcia v. Lane, 698 F.2d 900, 902 (7th Cir.1983). ²

Our examination of the record persuades us that there is a substantial likelihood that the prosecutor's statement changed the result of the trial. In order to convict Shaw, the jury had to find beyond a reasonable doubt that it was Shaw who fired the shots that killed Edward Lewis. The only evidence before the jury was the testimony of the three eyewitnesses, Lillian and Grandville Farmer and Marva Davis, and of the investigating police officers.

Eyewitness testimony placed petitioner in the liquor store but was laced with uncertainties. At trial both Lillian Farmer and Marva Davis identified petitioner as one of the two men who entered the liquor store just before the shooting. Mrs. Farmer had seen both petitioner and White before, and had seen both defendants in the liquor store earlier that evening. Marva Davis testified that she had known petitioner and White for about three years before the shooting incident, and stated that both of them came in the store often. Additionally, Mr. Farmer had identified petitioner in a police lineup on the day of the shooting.

Despite the fact that all three eyewitnesses made positive identifications of petitioner as one of the two assailants who entered the store, certain aspects of the eyewitness testimony also supported the possibility of misidentification. During cross-examination, defense counsel showed Mrs. Farmer photographs of Ricardo White and Robert Craig. She admitted that on the day of the shooting police had presented those photographs to her and she had identified them as Lewis's assailants. On redirect, the state showed Mrs. Farmer some additional photographs and asked if she had picked any of them as depicting Lewis's assailants at the hearing on a motion to suppress identification. Mrs. Farmer indicated that she had selected a photograph of petitioner at the suppression hearing. Additionally, when Mr. Farmer was shown photographs at the police station three or four days after the shooting, he identified photographs of petitioner and Ricardo White, and also picked out a photograph of John Shaw, Phil Shaw's brother, as "favoring" one of the two men he saw in the store. Neither John Shaw nor Robert Craig were in the lineup that Mr. and Mrs. Farmer viewed on the day of the shooting.

Marva Davis's recollection was vague regarding her statements to the police on the night of the murder. She first testified that after the shooting she probably did not mention the names of the offenders to the police, but then stated that she did not know what she told the police. Davis went on to say that she was not sure whether she told the police that White was present but she did tell them that petitioner was there. In further testimony Davis stated she was not sure whether she told police that she knew the two men who came into the store, and did not know whether she gave their names. Davis did state that she gave the police petitioner's phone number the night of the shooting. Officer Rosas, a beat officer, testified that he arrived at the liquor store and spoke with the witnesses shortly after the shooting. According to Rosas none of the witnesses gave him the names of any alleged offenders.

The morning of the shooting police located the assailants' car, identified by Grandville Farmer as being the one he saw leaving the scene of the shooting, in the driveway of petitioner's residence. ³ The auto belonged to Larry Craig. The police found Ricardo White and Robert Craig, but not petitioner, at the residence.

Valerie Johnson, a friend of the Shaw family, testified for the defense. She stated that she received a phone call from Marva Davis several days after the shooting. According to Johnson they discussed the incident and Davis stated that Rick White and "another guy" had been involved. Johnson said that Davis never mentioned petitioner's name. Marva Davis, on cross-examination, testified that Johnson had initiated the telephone call to find out "what was going on." She denied that she had told Johnson that a man named Track shot Lewis or that she had called Johnson because she felt guilty and wanted to know what had happened to petitioner.

The evidence concerning who actually shot Lewis was significantly more contradictory. Although Lillian Farmer said that she saw a gun in petitioner's hand following the shooting, her testimony was inconsistent in her description of the man who had the gun. Mrs....