U.S. ex rel. Haywood v. O'Leary, No. 86-1278

CourtUnited States Courts of Appeals. United States Court of Appeals (7th Circuit)
Writing for the CourtBefore COFFEY and RIPPLE, Circuit Judges and CAMPBELL; COFFEY
Citation827 F.2d 52
Parties23 Fed. R. Evid. Serv. 1015 UNITED STATES of America ex rel. Melvin HAYWOOD, Petitioner-Appellant, v. Michael O'LEARY, Warden, Stateville Penitentiary, Respondent-Appellee.
Docket NumberNo. 86-1278
Decision Date05 August 1987

Page 52

827 F.2d 52
23 Fed. R. Evid. Serv. 1015
UNITED STATES of America ex rel. Melvin HAYWOOD, Petitioner-Appellant,
v.
Michael O'LEARY, Warden, Stateville Penitentiary, Respondent-Appellee.
No. 86-1278.
United States Court of Appeals,
Seventh Circuit.
Argued Sept. 10, 1986.
Decided Aug. 5, 1987.

Page 53

William H. Theis, Chicago, Ill., for petitioner-appellant.

Nathan P. Maddox, Asst. Atty. Gen., Springfield, Ill., for respondent-appellee.

Appeal from the United States District Court for the Northern District of Illinois, Eastern Division.

Before COFFEY and RIPPLE, Circuit Judges and CAMPBELL, Senior District Judge. *

COFFEY, Circuit Judge.

Melvin Haywood, petitioner-appellant, appeals the district court's denial of his petition for a writ of habeas corpus. We affirm.

I

The facts of this case have been detailed in previously reported opinions, People v. Haywood, 60 Ill.App.3d 236, 17 Ill.Dec. 329, 376 N.E.2d 328 (Ill.App.Ct.1978); U.S. ex rel. Haywood v. Wolff, 490 F.Supp. 1154 (N.D.Ill.1980); U.S. ex rel. Haywood v. Wolff, 658 F.2d 455 (7th Cir.1981), thus we will delineate only those facts necessary to this appeal. We are mindful that 28 U.S.C. Sec. 2254(d) 1 requires us to presume the accuracy of the findings of fact of state courts. Sumner v. Mata, 455 U.S. 591, 597-98, 102 S.Ct. 1303, 1306-07, 71 L.Ed.2d 480 (1982); United States ex rel. Kosik v. Napoli, 814 F.2d 1151, 1153 (7th Cir.1987).

In the early morning hours of July 2, 1972, three men 2 entered an apartment at 1448 East 68th Street in Chicago, Illinois. Shortly after entry, shooting erupted resulting in the deaths of two men, Lee Jackson and William Throop, and one woman, Melba Grate. Two other men, Charles Stanton and Harry Daniels, were wounded. At the hospital, Stanton told Officers Thomas McKenna and Thomas Ferry that the man who shot him was short and stocky and that while in the apartment he had seen a picture of at least one of the assailants. Upon investigation after the shooting, the officers discovered a number of pictures in the apartment (approximately 120). Officer McKenna and his partner returned to the hospital and displayed the

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pictures (approximately 120) to Stanton and asked him to indicate with a mark on the back of any of the pictures any person he could identify as being part of the group of people present during the shooting. Stanton marked four separate pictures of Haywood identifying him as one of the three men who had entered the apartment on July 2, 1972 and participated in the shooting spree. Stanton also identified Harry Daniels and Willie Bedgood as the other two men involved from a second group of pictures.

Based upon Stanton's positive photographic identification of Haywood and the information he gave to the police, a murder warrant was issued for Haywood's arrest shortly thereafter but was not executed until almost two years later on June 12, 1974. On July 11, 1974, a preliminary hearing was held to determine if there was probable cause to believe that Haywood had committed a crime. Ill.Rev.Stat. ch. 38 Sec. 109-3(a); see also Williams v. Kobel, 789 F.2d 463, 468 (7th Cir.1986). 3 Stanton when called as a witness entered the courtroom from the back of the room and took the witness stand. When asked to identify the person who killed Melba Grate and wounded him, Stanton, a black man, in reply to a question on cross-examination as to how long he looked at Haywood before identifying him replied "four or five" seconds before pointing to Haywood and described what he was wearing. Haywood was identified while sitting at a counsel table. 4 Stanton testified that Haywood shot him while in the living room and that he 5 and another woman, Shirley Scott, ran back to a rear bedroom where Scott hid in a closet and he hid under a bed. He further testified that he was able to observe Haywood murder his girlfriend with a shot to the head. Haywood then entered the bedroom and directed Stanton to get up, and fired at him again, this time hitting him (Stanton) in the stomach causing him to fall to the floor. Stanton was hospitalized and succumbed thereafter of causes unrelated to the shooting before Haywood's trial. 6 A short time later a Cook County grand jury returned a five count indictment charging Haywood with three murders, attempted murder, and aggravated battery.

Although Stanton died of causes unrelated to the shooting before being able to testify at Haywood's trial, he did live long enough to have an opportunity to testify for the prosecution and identified Willie Bedgood as one of the other gunmen at Bedgood's trial. Bedgood was subsequently acquitted.

Prior to Haywood's trial, he made a motion to suppress Stanton's identification of him at the hearing as the individual who had shot Stanton and killed Melba Grate on the grounds that it was the result of an unnecessarily suggestive courtroom confrontation and the admission of the identification testimony would deny Haywood his due process rights. The state trial judge after hearing testimony and argument ruled that there was "nothing suggestive" about the confrontation at the preliminary hearing and, in any event, that Stanton's identification of Haywood had a prior independent origin (he had an excellent opportunity

Page 55

to view Haywood at the time the crime was committed) and was therefore reliable. The state trial judge also noted that Stanton had also made an independent identification of Haywood from the pictures displayed to him at the hospital. 7

At Haywood's trial the defense attempted to cross-examine one of the investigating officers, Thomas McKenna as to whether the two other men identified by Stanton, Daniels and Bedgood, as Haywood's fellow gunmen had been charged, and if so, whether they were convicted. 8 The state objected and the trial court sustained the objection as being irrelevant.

The petitioner was convicted of murder, attempted murder, and aggravated battery in the Circuit Court of Cook County, Chicago, Illinois. His conviction was affirmed by the Illinois Appellate Court. People v. Haywood, 60 Ill.App.3d 236, 17 Ill.Dec. 329, 376 N.E.2d 328 (Ill.App.Ct.1978). The Illinois Appellate Court rejected both of the arguments Haywood advances on this appeal holding (1) that "the record reflects that Stanton ... [had] an excellent opportunity to view the defendant during the commission of the instant crimes and the trial court did not err in allowing into evidence Stanton's identification of the defendant at the preliminary hearing," 17 Ill.Dec. at 335, 376 N.E.2d at 334, and (2) that the trial court did not abuse its discretion in not allowing cross examination regarding whether Bedgood and Daniels had been charged and convicted since "the jury ... could have been invited into an area of conjecture and speculation" as to why Bedgood was charged and tried but not convicted and Daniels was charged but never brought to trial. Id. at 336, 376 N.E.2d at 335. Haywood was denied leave to appeal

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by the Illinois Supreme Court and the United States Supreme Court refused to grant certiorari. 9

Thereafter Haywood petitioned the federal district court for a writ of habeas corpus alleging that his Sixth and Fourteenth Amendment rights were violated when the transcript of Stanton's testimony from his (Haywood's) preliminary hearing was admitted in evidence despite his objection that he did not have an adequate opportunity to cross-examine Stanton (who succumbed before trial). 10 The district court granted the habeas writ finding that the use of the preliminary hearing transcript of Stanton's testimony resulted in the denial of Haywood's right of confrontation since he was not given an adequate opportunity to cross-examine Stanton at the preliminary hearing. U.S. ex rel. Haywood v. Wolff, 490 F.Supp. 1154 (N.D.Ill.1980). This court reversed the granting of the writ of habeas corpus, U.S. ex rel. Haywood v. Wolff, 658 F.2d 455 (7th Cir.1981), and remanded, holding that no constitutional violation occurred since the "[c]ircumstances under which [the witness] Stanton testified in the cross-examination that was allowed at the preliminary hearing provided sufficient indicia of the reliability of his testimony to justify consideration of it by the jury." Id. at 464. The district court did not address the other grounds for relief Haywood asserted in his original habeas petition.

On remand, Haywood requested that the district court address the alternative grounds he had asserted in his original petition for habeas corpus relief: (1) that the trial court's reception of Stanton's in-court identification testimony, of him as the murderer of Grate and his (Stanton's) assailant during the preliminary hearing was inadmissible, as being unnecessarily suggestive, thus denying him his due process rights under the Fourteenth Amendment of the United States Constitution and (2) that the state trial judge's refusal to allow Haywood to cross-examine Officer McKenna about the final disposition of the criminal proceedings against Daniels and Bedgood denied him his Sixth Amendment rights. 658 F.2d at 459 n. 9. The district court denied the petition, stating that since there was an independent photographic identification "[a]ny claimed suggestiveness in the procedures utilized at the preliminary hearing is irrelevant." United States ex rel. Haywood v. O'Leary, No. 84 C 7251, Mem.Op. at 9 (N.D.Ill. Jan. 16, 1986). The court also found that the state court's refusal to allow cross-examination of Officer McKenna as to the disposition of criminal proceedings against Bedgood and Daniels did not deny Haywood a fair trial. Id. at 10. The district court noted that no facts were presented that could even hope to "raise an inference of mistaken identification." Id. In reaching its decision the trial court further noted that "the fact that Daniels was never prosecuted was introduced into evidence when he testified for petitioner." Id. Haywood requested and...

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34 practice notes
  • Resnover v. Pearson, Civ. No. S88-128.
    • United States
    • United States District Courts. 7th Circuit. United States District Court of Northern District of Indiana
    • January 14, 1991
    ...832 F.2d 445 (7th Cir.1987), cert. denied, 485 U.S. 967, 108 S.Ct. 1239, 99 L.Ed.2d 438 (1988); United States ex rel. Haywood v. O'Leary, 827 F.2d 52 (7th Cir.1987); Bryan v. Warden, Indiana State Reformatory, 820 F.2d 217 (7th Cir.1987), cert. denied, 484 U.S. 867, 108 S.Ct. 190, 98 L.Ed.2......
  • Gerald v. Duckworth, No. 93-1192
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • December 20, 1994
    ...(1981); Dooley v. Duckworth, 832 F.2d 445 (7th Cir. 1987), cert. denied, 485 U.S. 967 (1988); United States ex rel. Haywood v. O'Leary, 827 F.2d 52 (7th Cir. 1987); Bryan v. Warden, Indiana State Reformatory, 820 F.2d 217 (7th Cir. 1987), cert. denied, 484 U.S. 867 (1987); Shepard v. Lane, ......
  • U.S. v. Recendiz, No. 06-1754.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • March 3, 2009
    ...accord Johnson v. McCaughtry, 92 F.3d 585, 597 (7th Cir. 1996); Rodriguez, 63 F.3d at 556; United States ex rel. Haywood v. O'Leary, 827 F.2d 52, 59 (7th Cir.1987). Nothing here requires us to deviate from that general rule. Similarly, simply increasing a witness's proximity to the individu......
  • Prince v. Parke, No. 3:95cv0499 AS.
    • United States
    • United States District Courts. 7th Circuit. United States District Court of Northern District of Indiana
    • October 18, 1995
    ...832 F.2d 445 (7th Cir.1987), cert. denied, 485 U.S. 967, 108 S.Ct. 1239, 99 L.Ed.2d 438 (1988); United States ex rel. Haywood v. O'Leary, 827 F.2d 52 (7th Cir.1987); Bryan v. Warden, Indiana State Reformatory, 820 F.2d 217 (7th Cir.), cert. denied, 484 U.S. 867, 108 S.Ct. 190, 98 L.Ed.2d 14......
  • Request a trial to view additional results
34 cases
  • Resnover v. Pearson, Civ. No. S88-128.
    • United States
    • United States District Courts. 7th Circuit. United States District Court of Northern District of Indiana
    • January 14, 1991
    ...832 F.2d 445 (7th Cir.1987), cert. denied, 485 U.S. 967, 108 S.Ct. 1239, 99 L.Ed.2d 438 (1988); United States ex rel. Haywood v. O'Leary, 827 F.2d 52 (7th Cir.1987); Bryan v. Warden, Indiana State Reformatory, 820 F.2d 217 (7th Cir.1987), cert. denied, 484 U.S. 867, 108 S.Ct. 190, 98 L.Ed.2......
  • Gerald v. Duckworth, No. 93-1192
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • December 20, 1994
    ...(1981); Dooley v. Duckworth, 832 F.2d 445 (7th Cir. 1987), cert. denied, 485 U.S. 967 (1988); United States ex rel. Haywood v. O'Leary, 827 F.2d 52 (7th Cir. 1987); Bryan v. Warden, Indiana State Reformatory, 820 F.2d 217 (7th Cir. 1987), cert. denied, 484 U.S. 867 (1987); Shepard v. Lane, ......
  • U.S. v. Recendiz, No. 06-1754.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • March 3, 2009
    ...accord Johnson v. McCaughtry, 92 F.3d 585, 597 (7th Cir. 1996); Rodriguez, 63 F.3d at 556; United States ex rel. Haywood v. O'Leary, 827 F.2d 52, 59 (7th Cir.1987). Nothing here requires us to deviate from that general rule. Similarly, simply increasing a witness's proximity to the individu......
  • Prince v. Parke, No. 3:95cv0499 AS.
    • United States
    • United States District Courts. 7th Circuit. United States District Court of Northern District of Indiana
    • October 18, 1995
    ...832 F.2d 445 (7th Cir.1987), cert. denied, 485 U.S. 967, 108 S.Ct. 1239, 99 L.Ed.2d 438 (1988); United States ex rel. Haywood v. O'Leary, 827 F.2d 52 (7th Cir.1987); Bryan v. Warden, Indiana State Reformatory, 820 F.2d 217 (7th Cir.), cert. denied, 484 U.S. 867, 108 S.Ct. 190, 98 L.Ed.2d 14......
  • Request a trial to view additional results

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