U.S. ex rel. McClindon v. Warden, Illinois State Penitentiary, Stateville Branch

• Decision Date: 05 May 1978
• Docket Number: 77-1198,Nos. 77-1197,s. 77-1197
• Citation: 575 F.2d 108
• Parties: UNITED STATES ex rel. Charles McCLINDON, Petitioner-Appellee, Cross-Appellant, v. WARDEN, ILLINOIS STATE PENITENTIARY, STATEVILLE BRANCH, Respondent-Appellant, Cross-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 108

575 F.2d 108

UNITED STATES ex rel. Charles McCLINDON Petitioner-Appellee, Cross-Appellant, v. WARDEN, ILLINOIS STATE PENITENTIARY, STATEVILLE BRANCH Respondent-Appellant, Cross-Appellee.

Nos. 77-1197, 77-1198.

United States Court of Appeals Seventh Circuit.

Argued May 27, 1977.

Decided March 27, 1978.

As Amended May 5, 1978.

William J. Scott, Atty. Gen., Thomas W. Connors, Asst. Atty. Gen., Chicago, Ill., for Warden, Ill. State Penitentiary.

Kenneth N. Flaxman, Chicago, Ill., for McClindon.

Before PELL, TONE and BAUER, Circuit Judges. ^*

BAUER, Circuit Judge.

Following a state jury trial, McClindon and his codefendant Millard Hubbard were convicted of murdering Leon Hunt on January 21, 1968. After exhausting his state court remedies, McClindon sought federal habeas relief in the district court on the grounds that he had been convicted on the basis of insufficient evidence and that he had been denied the effective assistance of counsel at trial. The district court denied McClindon's insufficiency-of-the-evidence claim but agreed that McClindon was denied the effective assistance of counsel guaranteed by the Sixth Amendment because of a disabling conflict of interest resulting from trial counsel's efforts to represent both McClindon and his codefendant. Accordingly, the district court vacated McClindon's sentence and ordered that he be released from custody unless retried within 30 days. Execution of the final order was stayed by the district court pending this appeal, and this Court denied petitioner's motion for bail pending appeal.

The State appeals the district court's grant of federal habeas relief on the Sixth Amendment ground, and McClindon cross-appeals from the denial of his due process claim based on the insufficiency of the State's evidence. We affirm the district court's denial of McClindon's due process claim but reverse the grant of habeas relief and remand for further consideration of McClindon's ineffective-assistance-of-counsel claim.

I.

We turn first to McClindon's claim that he was denied due process of law when he was convicted of murder on the basis of insufficient evidence. McClindon argues that the state appellate courts relied on a constitutionally impermissible inference drawn from his silence in affirming his conviction and that, absent such inference, his conviction is "totally devoid of evidentiary support." Thompson v. Louisville, 362 U.S. 199, 80 S.Ct. 624, 4 L.Ed.2d 654 (1960). Before turning to the merits of his claim, however, we must review the evidence underlying his conviction.

The evidence presented at trial showed that Leon Hunt was murdered in the early morning hours of January 21, 1968 at the Chicago apartment of Virginia Williams. There were no eyewitnesses to the murder, and McClindon's conviction was based largely on inferences drawn from evidence derived from the testimony of Virginia Williams and her daughter Cassendra.

The evidence establishes that Virginia left the apartment at about 1:00 a. m. Shortly thereafter, Cassendra let McClindon and Hubbard into the apartment to see Hunt. When Virginia returned about twenty minutes later, she heard Hunt, McClindon and Hubbard arguing in the kitchen and told them to "take it outside" so as not to disturb her ill mother. The three men then stepped into a bathroom just off the kitchen, closed the door and continued arguing. A few moments later Virginia heard scuffling and a gunshot. She told Cassendra to leave and then went to a bedroom at the front of the apartment. As she did so, she heard two men rush past the room towards the front door. Cassendra, who was standing on the front porch, saw Hubbard tucking a gun into his belt as he and McClindon ran by her. Virginia found Hunt lying unconscious in the kitchen. He had been shot, cut on the ear, and was bleeding from his mouth. Soon thereafter, he died.

The State pursued an accountability theory of guilt at trial. Neither McClindon nor Hubbard testified at trial, and no evidence was presented on their behalf. On appeal from their convictions, the defendants argued that the evidence was insufficient to support their convictions because there was no proof as to who fired the fatal shot and no proof that they were acting in concert. In the course of rejecting the defendants' contention, the intermediate appellate court commented:

"The evidence proved, beyond a reasonable doubt, that the defendants failed to offer an explanation for their conduct, either immediately before, during or after the killing of Leon Hunt. This failure was inconsistent with the behavior of persons similarly situated and innocent of the crime which was committed." People v. Hubbard, 4 Ill.App.3d 729, 733, 281 N.E.2d 767, 771 (1st Dist. 1972).

On further appeal to the Illinois Supreme Court, the defendants again pressed their argument regarding the insufficiency of the evidence and cojoined it with the contention that the lower appellate court had unconstitutionally shifted the burden of proof simply because they refused to waive their Fifth Amendment right not to incriminate themselves. The Illinois Supreme Court disagreed. Addressing the defendants' insufficiency-of-the-evidence claim, the court said:

"(W)e find support for the verdicts in the fact that the defendants came to the apartment together late at night. Regardless of who started the argument or what it was about, the evidence showed that the defendants were standing in the kitchen arguing loudly with Hunt. When told to take their argument outside, . . . they stepped into the washroom which adjoined the kitchen and continued their argument. Following the shooting the two defendants fled from the house and Hubbard was seen putting the gun in his belt as he fled. McClindon did not surrender until two days later and Hubbard did not surrender until a week after the shooting. There is no showing that either defendant disapproved or opposed the commission of the homicide. We find that the conduct of each defendant in this case is not consistent with that of an innocent man. From the facts and circumstances in evidence the jury could reasonably find each defendant guilty." People v. McClindon, 54 Ill.2d 546, 301 N.E.2d 290, 292 (1973), cert. denied, 415 U.S. 922, 94 S.Ct. 1593, 39 L.Ed.2d 889 (1974).

The court also rejected the defendants' contention that the lower appellate court had impermissibly shifted the burden of proof. Although agreeing that the lower court's language was "extremely broad and susceptible of misinterpretation," the Supreme Court believed that the lower court was simply pointing out that inferences of guilt could be drawn from the defendants' conduct, and that the evidence supporting those inferences stood unrebutted at trial:

"The conduct (of the defendants) was evidence from which the jury could draw inferences. The defendants had an opportunity during the trial to explain their conduct just as any defendant has an opportunity to explain, rebut or contradict any evidence presented against him. In the absence of any explanation, rebuttal or contradiction the evidence stands unchallenged before the jury. This court has stated concerning conduct similar to that involved in this case: 'In the absence of explanation, such conduct is not consistent with that of an innocent person similarly situated, and is sufficient to support an inference that a common understanding or design existed.' The application of this principle does not constitute an unlawful shifting of the burden of proof to the defendant, nor is any fifth amendment violation involved." Id. at 548-49, 301 N.E.2d at 293 (citations omitted).

On appeal here, McClindon renews his argument that the Illinois courts impermissibly shifted the burden of explaining his conduct and drew an inference of guilt from his refusal to testify. Absent such inference, McClindon claims, his conviction is unsupported by evidence sufficient to support his conviction. We disagree.

In this federal habeas proceeding, of course, we do not sit in review of the Illinois Supreme Court's determination that the evidence was sufficient as a matter of state law to support McClindon's conviction. Our only concern is whether the conviction is "so devoid of evidentiary support as to raise a due process issue." United States ex rel. Johnson v. Illinois, 469 F.2d 1297, 1300 (7th Cir. 1972), cert. denied, 411 U.S. 920, 93 S.Ct. 1560, 36 L.Ed.2d 313 (1973). The question, thus, is not the sufficiency of the evidence as such, but rather "whether this conviction rests upon any evidence at all." Thompson v. Louisville, 362 U.S. 199, 80 S.Ct. 624, 4 L.Ed.2d 654 (1960). We believe that it does.

The evidence is undisputed that McClindon and Hubbard went to Williams's apartment together late at night to see Hunt. All three were engaged in an argument, and the fact that the three men all went into the bathroom together to continue the argument suggests that, whatever its subject, the argument was over a matter of common concern to McClindon and Hubbard. The defendants fled the apartment together, and neither endeavored to assist the victim or inform the police about the other's conduct. We believe, as did the Illinois courts, that this conduct provided a reasonable basis for the jury to have inferred that the defendants were acting in concert and were legally accountable for one another's conduct.

Nor do we believe that the Illinois courts shifted the burden of proof to the defendants or drew impermissible inferences from their failure to testify. What the courts were saying is that the defendants' conduct at the scene of the crime provided a reasonable basis from which the jury could infer the defendants' guilt on an accountability theory. Simply put, the State's evidence was sufficient to support a finding that the defendants were acting in concert, and the defendants gave the jury no reason not to draw the inference of concerted action permitted by the State's evidence. Thus,...