U.S. ex rel. Russell v. Gaetz

• Decision Date: 02 June 2009
• Docket Number: No. 08 C 1814.,08 C 1814.
• Citation: 628 F.Supp.2d 820
• Parties: UNITED STATES of America ex rel. Walter RUSSELL, Petitioner, v. Donald GAETZ, Warden, Menard Correctional Center, Respondent.
• Court: U.S. District Court — Northern District of Illinois

628 F.Supp.2d 820

UNITED STATES of America ex rel. Walter RUSSELL, Petitioner, v. Donald GAETZ, Warden, Menard Correctional Center, Respondent.

No. 08 C 1814.

United States District Court, N.D. Illinois, Eastern Division.

June 2, 2009.

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Andrew P. Young, Kirkland & Ellis LLP, Chicago, IL, for Petitioner.

Charles Redfern, Illinois Attorney General's Office, Chicago, IL, for Respondent.

MEMORANDUM OPINION AND ORDER

ELAINE E. BUCKLO, District Judge.

On March 28, 2008, Walter Russell filed a petition for a writ of habeas corpus seeking to vacate his 2004 conviction for first degree murder and attempted murder. Russell is presently incarcerated at Menard Correctional Center, where Donald Gaetz is the warden.¹ He raises six claims for relief: 1) that the state appellate courts denied him a "rational" and "non-arbitrary" review of his conviction by refusing to review the merits of his appeal under a standard consistent and uniform with similar cases; 2) that he was denied due process and a fair trial when the trial court incorrectly instructed the jury on how to analyze witness identification by inserting the conjunction "or" between each of the factors the jury was supposed to weigh; 3) that he was denied due process and a fair trial when evidence obtained through an illegal seizure was introduced to the jury; 4) that he was denied due process and a fair trial when evidence obtained form an overly suggestive lineup was introduced to the jury; 5) that he was denied due process and a fair trial when the trial court gave a jury instruction on accountability when there was insufficient evidence to support a theory that he acted as an accomplice; and 6) that the evidence was insufficient to support his conviction. For the reasons explained below, I deny Mr. Russell's petition.

I.

A. Summary of the Events

Because factual determinations made by state courts are presumed to be correct for the purpose of federal habeas petitions, Miller-El v. Cockrell, 537 U.S. 322, 324, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003), I base my account of the material facts on People v. Russell, No. 1-04-0853 (Ill.App. Ct., Nov. 30, 2006) ("Russell"), Exh. D to Respondent's Answer, in which the Illinois Appellate Court—the highest state court to decide Mr. Russell's claims on the merits—upheld his conviction and sentence. Where helpful, I also include undisputed facts gleaned from my review of the record. Because Mr. Russell asserts, among other grounds for relief, that the trial court violated his rights under the Constitution by failing to suppress certain evidence during pre-trial proceedings, and that the evidence presented at his trial was insufficient to support his conviction, a summary of each of these proceedings is in order. First, however, an overview of the underlying events:

In the early morning of July 19, 2000, in Riverdale, Illinois, petitioner's parked van was struck by an SUV (this accident is sometimes referred to as the "first accident"), which was driven by Raashawn Langford ("Raashawn"). Also in the SUV at the time were passengers Shivone Langford ("Shivone"), who was seated in the front passenger seat, Aletra Slack, seated behind Shivone, and Reginald Tracy seated behind Raashawn. The four were leaving the home of their friend, Towanda Washington. The SUV fled the scene after hitting the van, and the van gave chase, shooting at the SUV. During the chase, Slack was shot in the head. She later died from the gunshot wound. The chase ended when the SUV crashed into a tree. Following this crash (sometimes, the "second accident,") the van drove up alongside the SUV, then drove off.

Gregory Craig, a friend of Russell's and a passenger in his van at the time of the first accident, was detained and held for three days by the Riverdale Police Department. During this time, he provided a statement identifying Russell as the driver of the van. On July 20, a detective went to Russell's mother's home and told her the police were looking for Russell. Subsequently, Samuel Adam, Jr., contacted the Riverdale police and told them he was Mr. Russell's attorney and that he would bring Russell to the station for questioning. The following day, Adam and Russell went to the Riverdale Police Department, where Russell was arrested, processed, and booked upon his arrival. Several hours later, Russell was subjected to a police lineup and was identified by several eyewitnesses to the events surrounding the two car accidents of July 19. On August 1, 2000, Russell was indicted for the murder of Slack and the attempted murders of Raashawn, Shivone, and Tracy.

B. Motion to Suppress Identification

Prior to his trial, Mr. Russell moved to suppress his identification on the grounds that he was denied his right to counsel and that the lineup was unconstitutionally suggestive.² Russell argued that the lineup was unduly suggestive because he was physically distinct from the other participants. Russell asserted that at five feet, eleven inches tall and weighing 270 pounds, he was physically different from the other lineup participants. Russell further claimed the lineup was suggestive based on the fact that one of the police officers told him, while the lineup was being observed by a witness, to raise the number he was holding closer to his chin. Russell argued that this singled him out among the lineup participants.

At the suppression hearing, the court heard testimony from seven witnesses, including three witnesses who identified Russell in the lineup, three police officers who conducted the lineup, and Russell himself. None of the witnesses who identified Russell testified that they recalled seeing any of the lineup participants move his number. One of the witnesses said that all of the men were holding their numbers in the same way, another said they were all holding their numbers toward the center of their bodies, and the third said she could not recall whether any of the participants had moved. Russell testified that at least two or three other participants were "about" his size.

The court also considered a group photograph of the lineup participants that was taken by the Riverdale police either just before or just after the lineup. The record reflects that three of the other participants were six feet tall, one was five-foot-ten, and another was six-foot-five, and that one participant weighed 205 pounds, two weighed 215 pounds, one weighed 220 pounds, and one weighed 330 pounds. The record also reveals that the participants were seated on a bench during the lineup.

After considering the parties' evidence and arguments, the court denied the motion to suppress. The court found that the lineup was not unduly suggestive, relying heavily on the photograph of the participants and on the testimony of the witnesses. Observing the photograph, the court stated, "I see six male blacks. I would say except for one that might be a smaller build, I would say five of those six are substantial height and weight." Exh. A to Respondent's Answer at OO-63. The court also noted that the testimony of various witnesses was consistent, and concluded that defendant had not met his burden of demonstrating that the lineup was "suggestive, unfair, illegal, or unconstitutional." Id. at OO-65.

Russell moved to reconsider the court's denial of his motion based on the newly obtained, stipulated testimony of Samuel Thomas, another participant in the lineup. According to the stipulation, Thomas would have testified that he heard a police officer tell Mr. Russell during the lineup to hold his number up. The court considered this additional testimony but declined to reconsider its earlier ruling. The court noted that there was conflicting testimony as to whether Russell was, in fact, told to move his number while witnesses were viewing the lineup, but reasoned that "[e]ven if I believe that happened ... the Put your number up conversation, I think it's an unobvious inference or leap of logic to say that that clearly would be a suggestive fact of this—of the totality of this lineup." Exh. A to Resp.'s Ans. at TT-23.

C. The Trial

At trial, the state presented the testimony of eleven witnesses: Bruce Fairfield, Aletra Slack's stepfather; Mitra Kalekar, a Cook County Medical Examiner; Gregory Craig; LaShanda Robinson; Towanda Washington; Reginald Tracy; Shivone Langford; Raashawn Langford; Lynne Russell, Walter Russell's mother; Detective Darrell Shaw, of the Chicago Police Department; and Detective Peter Satriano, of the Riverdale Police Department. The defense called two witnesses, Stella Bailey and Samuel Adam, Jr. Because the Illinois Appellate Court found only the testimony of the state's eyewitnesses—Craig, Robinson, Washington, Tracy, Shivone and Raashawn—relevant to Russell's appeal, I focus on that testimony below.

Gregory Craig testified that he and Russell had been friends for a number of years, and that the two had been drinking together on the night of Slack's death. They were joined at some point by Craig's girlfriend, Robyn Reynolds, and a woman named LaShanda. While Russell's van was parked outside Reynolds's house, with Russell in the driver's seat and Craig in the passenger's seat, a silver SUV backed into the front passenger side door of the van. Russell got out to inspect the damage, and when the SUV drove off, Russell yelled at Craig to hand him his pistol. Craig testified that Russell then reached into a glovebox on the floor of the van between the two front seats and pulled out a black, nine millimeter pistol. Russell pointed the pistol at the SUV, then drove off after it, with Craig still in the passenger's seat. At some point, the SUV turned back in the opposite direction because fire trucks were blocking the street, and the van followed. As the vehicles were changing course, Craig told Russell he wanted to get out to get the SUV's license plate number, then jumped out the side door. The van drove...