U.S. ex rel. Lee v. Flannigan, 88-3355

• Decision Date: 23 October 1989
• Docket Number: No. 88-3355,88-3355
• Citation: 884 F.2d 945
• Parties: 28 Fed. R. Evid. Serv. 1394 UNITED STATES of America ex rel. Robert E. LEE, Petitioner-Appellant, v. Mary FLANNIGAN, Administrator of the Menard Psychiatric Center, Respondent-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 945

884 F.2d 945

28 Fed. R. Evid. Serv. 1394

UNITED STATES of America ex rel. Robert E. LEE, Petitioner-Appellant, v. Mary FLANNIGAN, Administrator of the Menard Psychiatric Center, Respondent-Appellee.

No. 88-3355.

United States Court of Appeals Seventh Circuit.

Argued June 2, 1989.

Decided Sept. 18, 1989.

Rehearing and Rehearing En Banc Denied Oct. 23, 1989.

Daniel R. Warren, Bradley P. Nelson, Jenner & Block, Chicago, Ill., for petitioner-appellant.

Terence M. Madsen, Jack Donatelli, Asst. Attys. Gen., Crim. Appeals Div., Chicago, Ill., for Mary Flannigan and Neil F. Hartigan, Atty. Gen. of State of Ill.

Before POSNER and MANION, Circuit Judges, and ESCHBACH, Senior Circuit Judge.

ESCHBACH, Senior Circuit Judge.

Robert E. Lee, the petitioner-appellant, appeals from the district court's denial of his petition for a writ of habeas corpus. 701 F.Supp. 143. In separate trials, Lee was convicted of the murder and attempted armed robbery of William Hawbecker ("Hawbecker trial") and the armed robbery and attempted murder of Peter Larson ("Larson trial"). In a consolidated appeal, the Illinois Appellate Court reversed Lee's conviction for the attempted armed robbery of Hawbecker, but affirmed his other convictions. Lee was ultimately sentenced to a concurrent term of forty-years imprisonment for the murder of Hawbecker, twenty-years imprisonment for the attempted murder of Larson, and twenty-years imprisonment for the armed robbery of Larson.

On February 24, 1988, Lee filed a petition for a writ of habeas corpus, which the district court denied. On November 28, 1988, the district court granted Lee's request for a certificate of probable cause for appeal. On appeal, Lee raises five issues. First, Lee argues that the trial court erred in allowing Larson to identify Lee at both trials because the identification rested on an extremely suggestive hospital room show-up. Second, Lee contends that the admission of hearsay testimony concerning Hawbecker's description of his assailant at the Hawbecker trial violated Lee's sixth amendment right to confront witnesses. Third, Lee claims that the trial court erred in admitting evidence of the Larson shooting at the Hawbecker trial. Fourth, Lee argues that the prosecution improperly referred to his failure to testify at the Hawbecker trial and thereby violated the fifth amendment. Finally, Lee contends that his fourth amendment rights were violated at both trials when the government arrested him without probable cause and the district court relied on evidence obtained without probable cause in its harmless error analysis. For the reasons set forth below, we affirm the district court's denial of Lee's petition for a writ of habeas corpus.

I. Statement of Facts

On January 26, 1984, William Hawbecker was shot in the head near 3400 North Lakewood Street Chicago between 7:00 and 7:15 p.m. Hawbecker immediately walked home and had a friend rush him to the hospital. At the hospital, Hawbecker told the emergency room doctor that he had been beaten and shot by two men as he was walking down the street. Later that evening, however, Hawbecker told two police officers that he was assaulted by a white male, 16-18 years old, approximately 5'8" tall, with long blond hair and wearing dark clothes. Hawbecker did not mention any other assailant, nor did he refer to an attempted robbery. The officers radioed this description of the culprit, excluding the reference to the dark clothes.

At approximately 8:15 p.m. that same evening, Chicago police officers Horstein and Eichler responded separately to a "man with a gun" call at 4200 North Kenmore Street. At the scene, at least one bystander named Lee as the person with the gun, and another bystander described the "man with a gun" as a young blond man, approximately 17-25 years old. Officer Horstein knew who Lee was, and Officer Eichler was familiar with Lee from past complaints to the police department about Lee shooting out street lights on Kenmore. Officers Horstein and Eichler then left the scene separately and drove through the area looking for the described person. Shortly thereafter, Officer Eichler spotted Lee. He stopped Lee and searched him, but found no gun. He then released Lee and radioed the details of this stop. Officer Horstein also spotted Lee approximately fifteen minutes later, but was unable to stop him due to traffic. Both officers had seen Lee in the general vicinity of the Hawbecker shooting.

At approximately 11:00 p.m. that same evening, Larson, a cab driver, picked up two young men. Larson described them as a Puerto Rican and a white male, approximately 18 years old, between 5'10" and 6' tall, with long blond hair. After following their directions to an alley, which was just a few blocks from the site where Hawbecker was shot, the white man pointed a gun at Larson and robbed him. He ordered Larson to give the Puerto Rican the money from his pocket and then demanded Larson's wallet. After Larson gave him his wallet, the white man shot him twice in the back of the head.

Officers Cesario and Allota responded to the Larson shooting and spoke briefly with Larson. They also talked with a bystander, Deborah Jones, who witnessed the two assailants leaving the scene. She described one as a male Hispanic and the other as a slender white man, 19 years old, between 5'8" and 5'10", with long blond hair. They sent this description over the police radio. Shortly thereafter, Paula Tomas was shot while she was sitting with a friend in front of her home. She did not see her assailant.

On January 30, four days after the three shootings, Officer Horstein who had been looking for Lee found him and arrested Lee. That same day, Detective Stachula brought eight photographs, including one of Lee, to Larson who was in the hospital. Larson declined to make any identification because his vision was blurry from recent surgery.

The next day, Detective Stachula and Assistant State's Attorney Epach questioned Lee at the police station. Lee initially told them that he was at home the entire evening of January 26. When Detective Stachula called Lee's mother and asked her, she indicated that Lee had been in and out numerous times that evening. Lee then told them that he witnessed two of the three shootings, which someone who looked like him committed. Eventually, however, Lee confessed to the three shootings. Since Lee is mildly retarded and cannot read or write very well, Epach wrote Lee's confession for him. Epach would ask Lee a question concerning the shootings and write down Lee's response in a narrative form. Afterwards, Epach read the entire confession to Lee, who then signed it.

Later that day, Stachula again visited Larson at the hospital and told him that he had an individual who confessed to shooting him. Lee then entered the room. Larson identified Lee as the man who shot him, and Lee apologized to Larson. Stachula also took Lee to Tomas' room at the hospital, but she could not identify Lee as her assailant because she had not seen who shot her. Approximately two weeks later, Hawbecker died. The Cook County Medical Examiner's Office performed an autopsy and determined that Hawbecker died as a result of the gunshot wound to his head.

Lee received separate trials for the murder and attempted armed robbery of Hawbecker and the armed robbery and attempted murder of Larson. He was tried by a jury in the Hawbecker case, and by stipulation, he received a bench trial in the Larson case based solely on excerpts from the transcript of the Hawbecker trial. He was found guilty in both trials. In a consolidated appeal, the Illinois Appellate Court reversed his conviction for the attempted armed robbery of Hawbecker, but affirmed his other convictions. See Illinois v. Lee, 151 Ill.App.3d 510, 104 Ill.Dec. 136, 502 N.E.2d 399 (1986). The Illinois Supreme Court denied leave to appeal. See Illinois v. Lee, 115 Ill.App.2d 546, 110 Ill.Dec. 461, 511 N.E.2d 433 (1987). Lee was eventually sentenced to a concurrent term of twenty-years imprisonment for the attempted murder of Larson, twenty-years imprisonment for the armed robbery of Larson, and forty-years imprisonment for the murder of Hawbecker. On February 24, 1988, Lee filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. Sec. 2254. The district court denied his petition. We now affirm the denial of his petition.

II. Larson's Identification of Lee

Lee argues that the trial court should not have allowed Larson to identify Lee as his assailant at both trials. Lee contends that Larson's in-court identification was tainted by a prior unduly suggestive hospital room show-up; therefore, it is patently unreliable. In reviewing this issue, we note that the reliability of an identification is a mixed question of law and fact that is not governed by Sec. 2254(d)'s presumption of correctness. See Sumner v. Mata, 455 U.S. 591, 597, 102 S.Ct. 1303, 1306, 71 L.Ed.2d 480 (1982); Love v. Young, 781 F.2d 1307, 1311 (7th Cir.), cert. denied, 476 U.S. 1185, 106 S.Ct. 2923, 91 L.Ed.2d 551 (1986). However, the underlying factual determinations, such as whether the witness had an opportunity to observe the suspect, are presumed correct. See Sumner, 455 U.S. at 597, 102 S.Ct. at 1307; United States ex rel. Haywood v. O'Leary, 827 F.2d 52, 59 (7th Cir.1987).

It is well settled that courts must apply a two-step analysis in determining the admissibility of challenged police line-up identification testimony. First, the court must decide whether the police used an unduly suggestive pretrial procedure in obtaining an identification. Manson v. Brathwaite, 432 U.S. 98, 107, 97 S.Ct. 2243, 2249, 53 L.Ed.2d 140 (1977); Kubat v. Thieret, 867 F.2d 351, 357 (7th Cir.1989), petition for cert. filed (U.S. June 15, 1989). If the court finds that the police used an unduly suggestive procedure, then the court must determine whether, under all the circumstances, that suggestive procedure resulted in a substantial...