U.S. ex rel. Cole v. Lane

• Decision Date: 07 January 1985
• Docket Number: No. 83-2200,83-2200
• Citation: 752 F.2d 1210
• Parties: UNITED STATES of America ex rel. Miles COLE, Petitioner-Appellant, v. Michael LANE, Director of Department of Corrections, State of Illinois, Respondent-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1210

752 F.2d 1210

UNITED STATES of America ex rel. Miles COLE, Petitioner-Appellant, v. Michael LANE, Director of Department of Corrections, State of Illinois, Respondent-Appellee.

No. 83-2200.

United States Court of Appeals, Seventh Circuit.

Argued April 2, 1984.

Decided Jan. 7, 1985.

William A. Von Hoene, Jr., Jenner & Block, Chicago, Ill., for petitioner-appellant.

James E. Fitzgerald, Asst. Atty. Gen., Chicago, Ill., for respondent-appellee.

Before CUDAHY, COFFEY, Circuit Judges, and GIBSON, Senior Circuit Judge. ^*

COFFEY, Circuit Judge.

Miles Cole ¹ appeals from an order dismissing his petition for a writ of habeas corpus, denying his motion for summary judgment, and granting appellee Michael Lane's motion for summary judgment. Cole and his co-defendant, Bobby Cade, were charged in a two-count information with the crimes of armed robbery and possession of codeine and were convicted of armed robbery in a jury trial in the Circuit Court of Cook County, Illinois. Cole and Cade were jointly represented ² by two assistant public defenders from the Cook County Public Defender Office. Cole argues that a police officer testifying as a prosecution witness allegedly conveyed the substance of the co-defendant's out-of-court statement accusing Cole of committing the armed robbery. Cole asserts that he was denied his right to confrontation because he could not call his co-defendant as a witness to question him about his statement to the police. Additionally, Cole argues that he was denied effective assistance of counsel because his counsel, who also represented his co-defendant, could not attempt to discredit the allegedly incriminating statement of his co-defendant without violating his duty of loyalty to the co-defendant. Finally, Cole argues that the defenses of the two defendants were antagonistic; thus, joint and co-representation by the two public defenders also denied Cole his right to effective assistance of counsel. The argument that the joint representation was impermissible because of antagonistic defenses was neither raised in the trial court, the Illinois Court of Appeals nor the district court, but was raised for the first time in this court. We affirm.

I.

The testimony at the trial in the Circuit Court of Cook County, Illinois established the following scenario of an armed robbery in Chicago, Illinois. On January 20, 1979, at approximately 10:40 p.m., John Brown, his wife, Bequethal, and their friends, Pearly Smith and Jeremiah Wilson, drove to an apartment building at 227 North Kilbourn Street in Chicago to meet Bequethal Brown's cousin. As their car approached the apartment building, the occupants of the car noticed three men standing on the corner. While the others waited in the car, John Brown entered the building and was followed by two of the men previously observed on the corner. One of the men ordered Brown to walk down the unlighted hallway to an illuminated landing at the top of the first flight of stairs. When Brown reached the landing Bobby Cade pointed a gun at him while the other unarmed assailant, Cole, removed eighteen or twenty dollars from Brown's left pants pocket. Cade then removed approximately one-hundred-ten or one-hundred-fifteen dollars from Brown's other pocket.

After an intensive police search of the area immediately after the armed robbery, the police apprehended the two suspects at the West Lane Hotel, ³ a short distance away. When the police knocked on the door of the apartment, Cole and Cade jumped from the second story window to the snow bank below and were arrested. A third man was in the apartment when the police entered but was released without being arrested. After a search of the area, the Chicago Police recovered two grocery bags containing a total of fifty-seven bottles of codeine in the snow bank below the apartment window where Cole and Cade had landed. A search for the gun used in the holdup proved to be unsuccessful.

In an answer to a pretrial discovery motion, the state disclosed that on the night of the armed robbery, Cole and Cade gave oral statements to the police after being advised of their rights. Both defendants admitted to being present at the scene of the crime, but denied being armed with a gun or taking money, and each claimed that the other defendant had the gun and had relieved Brown of his money. Before trial, the prosecutor and the assistant public defenders assigned to represent Cole and Cade attempted to avoid the possibility that the witness would recount the defendants' statements accusing each other of committing the armed robbery by agreeing to redact ⁴ the defendants' statements. The Illinois state trial court judge and counsel agreed that the statements would be modified so that all references to Cade would be deleted from Cole's statement, and all references to Cole would be deleted from Cade's statement. According to Cole's petition for habeas corpus, the defense counsel and the prosecuting attorneys agreed that the defense counsel would not request a trial severance if the statements were redacted. ⁵

At trial, the state called Sergeant Robert Thorne of the Chicago Police Department and asked him whether he had a conversation with Cole at the police station. Thorne answered, "At this time he said, 'I was there, I didn't have no gun and I didn't take no money.' " After this testimony, the following colloquy occurred:

"Q. [Prosecution] Did you hear Mr. Cade say anything at that time?

"A. [Thorne] Mr. Cade said he didn't have a gun and he didn't take any money.

"Q. Besides stating he didn't have a gun did Mr. Cade say anything else?

"A. He implicated--

"Q. One moment, please--

[Defense Counsel] Objection, Judge. Can we have a sidebar, please?

THE COURT: "Yes."

At the sidebar conference the defense counsel moved for a mistrial arguing that Thorne's testimony was prejudicial because "[i]t was obvious to everyone in the courtroom when he said implicated it meant he was going to proceed to say he implicated the co-defendant as having the weapon...." The Illinois trial court judge denied the motion explaining, "the word implicate does not carry with it, and did not in this case, indicate what he was going to say next." To prevent further problems the prosecutor, the defense counsel, and the court agreed that the prosecutor could ask leading questions. The questioning then resumed:

"Q. Now, Sergeant Thorne, referring again to the conversation you heard from Mr. Cade, the defendant Cade, when he stated that he did not, as you testified, did not have a gun, did not take any money, did he state he was present at the time of the robbery?

"A. No, he did not state he was present at the time. Not the way you phrased the question, no, not in that sense.

"Q. Did he say he was there, in other words?

"A. He said Mr. DeBerry [Cole]--

"Q. No, without any reference to--"

At this point one of the defense counsel renewed his objection that the testimony violated the redaction agreement and implicated Cole, but the objection was overruled.

Cole, the only defense witness, testified that on January 20, 1979, he entered the apartment building at 227 North Kilbourn in Chicago, Illinois to purchase marijuana. He was unable to purchase marijuana, and, while leaving the building, observed several people in the hallway. According to Cole, he accompanied Cade to the West Lane Hotel, a nearby apartment house, in hope of purchasing marijuana. When the police knocked on the door of the apartment in which Cole and Cade were attempting to purchase marijuana, Cole and Cade panicked and jumped from the apartment window to the snowbank below. When asked by his attorney whether he had taken anything from Brown, Cole denied participating in the armed robbery. During his cross-examination, Cole testified that Cade did not rob Brown. When questioned about his post-arrest statement accusing Cade of commiting the armed robbery, Cole denied telling the arresting officers that he was with Cade when Cade robbed Brown. The state in rebuttal recalled Officer Thorne who testified, "DeBerry [Cole] indicated to me he was there. That he didn't take any money. He didn't have any gun. Cade is the one that had the gun. And Cade is the one that took the money." Cade did not testify at the trial.

On the direct appeal ⁶ of their armed robbery convictions, Cole argued that Thorne's interrupted testimony during the case-in-chief violated the agreement to redact and informed the jury that Cade had accused him of committing the armed robbery. Cole also argued that, because the interrupted testimony informed the jury of Cade's accusation, he was denied his right of confrontation and his right to effective assistance of counsel because he was unable to question Cade about his post-arrest statement. The Illinois Court of Appeals, however, found that Thorne's statements did not establish that Cade had implicated Cole as the offender because the statements made were only interrupted half-sentences and thus failed to convey a complete thought; therefore, the State did not violate its agreement to redact the post-arrest statement in which Cade implicated Cole. Since Thorne's interrupted testimony did not inform the jury that Cade had accused Cole of committing the armed robbery, Cole's rights to confrontation and to effective assistance of counsel were not denied.

In his petition for habeas corpus, ⁷ Cole renewed his argument that Thorne's interrupted testimony about Cade's statement created a constitutional error under Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968), by implicating him. Cole further argued that, "[o]nce a Bruton violation surfaced mid-trial ... Cole was denied his Sixth Amendment right to effective assistance of counsel." The district court held that, although "the timing of the testimony put it in a context such that it was clear that Thorne was testifying about post-arrest statements by Cole and Cade concerning the...