U.S. ex rel. Gray v. Director, Dept. of Corrections, State of Ill.

• Decision Date: 26 March 1984
• Docket Number: No. 82-2940,82-2940
• Citation: 721 F.2d 586
• Parties: UNITED STATES of America, ex rel. Paula GRAY, Petitioner-Appellant, v. DIRECTOR, DEPARTMENT OF CORRECTIONS, STATE OF ILLINOIS, Respondent-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 586

721 F.2d 586

UNITED STATES of America, ex rel. Paula GRAY, Petitioner-Appellant, v. DIRECTOR, DEPARTMENT OF CORRECTIONS, STATE OF ILLINOIS Respondent-Appellee.

No. 82-2940.

United States Court of Appeals Seventh Circuit.

Argued May 25, 1983.

Decided Nov. 16, 1983.

Rehearing Denied Dec. 22, 1983.

Certiorari Denied March 26, 1984.

See 104 S.Ct. 1690.

James H. Reddy, Asst. Public Defender of Cook County, Chicago, Ill., for petitioner-appellant.

Kevin Sweeney, Cook County Asst. State's Atty., Chicago, Ill., for respondent-appellee.

Before WOOD and CUDAHY, Circuit Judges, and WYATT, Senior District Judge. ^*

WYATT, Senior District Judge.

This is an appeal by Paula Gray ("Paula"), in custody of the respondent, Director, Department of Corrections, State of Illinois, from an order of the District Court dismissing on motion a petition for a writ of habeas corpus for failure to exhaust available state remedies. 28 U.S.C. Sec. 2254(b). Paula was sentenced on February 22, 1979, in the Circuit Court of Cook County, Illinois, after a jury had found her guilty of murder, rape, and perjury; her part was that of an aider and abettor. The sentence was imprisonment for concurrent terms of 50 years each for two murders and for rape, and of ten years for perjury.

By order filed May 6, 1982, the District Court denied motion of respondent to dismiss the petition. The reasons for the denial are said in the order to have been "stated in open court". The record does not contain any transcript of what was "stated in open court".

The District Court later changed its decision. By order with opinion filed October 18, 1982, the motion of respondent to dismiss the petition was granted on the ground that Paula had not exhausted state remedies.

This appeal followed and, the District Court having issued a certificate of probable cause, there is jurisdiction in this Court of the appeal under 28 U.S.C. Sec. 2253.

We reverse the order of dismissal of the District Court.

1.

On Thursday, May 11, 1978, related and revolting crimes were committed in Homewood and East Chicago Heights, Illinois. About five months later, three of the four men who committed these crimes and Paula, who aided and abetted them, were convicted by jury verdicts. One man was sentenced to death; one man was sentenced to life imprisonment; one man and Paula were sentenced to long prison terms. Almost five years later, the Illinois state courts and the federal courts are still dealing with these convictions. Because of Paula's perjury, one man escaped prosecution altogether.

In the early hours of May 11, 1978, a young man was abducted at gunpoint from a Homewood gasoline station where he was employed and which was robbed and looted. His fiancee, visiting him at his job, was also abducted. The two young people were taken some five miles away to an abandoned apartment, part of a housing complex where Paula and her family and Dennis Williams and his family lived as close neighbors. In the abandoned apartment, while Paula held a lighter for the men to see, the young woman was raped by Williams, Rainge, Adams, and Jimmerson; Williams then shot the young woman to death. The young man was next taken to a nearby field, with Paula in attendance. Williams shot the young man twice in the head and handed his gun to Rainge who shot the young man in the back. Williams and Paula went to a creek close at hand where Williams threw away the gun which had been used. Williams at this point told Paula not to tell the police what she had seen or he would kill her and her family.

The bodies of the victims were found on Friday, May 12. Investigation led first to Williams and Jimmerson who were arrested near the place of the murders and taken to Homewood police station for questioning. In the evening of May 12 Adams and Rainge were also questioned at the police station. They and Jimmerson were released on the same evening, to be rearrested a few days later. Williams was never released.

2.

As to Paula, she was not subject to the death penalty under Illinois law because she was not 18 years old when the murders were committed. Ill.Rev.Stat. ch. 38, Sec. 9-1(b). Williams, Rainge, Adams, and Jimmerson were each subject to the death penalty because they were above the age of 18 when the murders were committed.

3.

Paula, her mother, her twin sister, and five younger brothers and sisters lived at 1525 Hammond Lane in the housing complex already mentioned. Paula not only had known Williams and his family for some time, but had also known the other three men who were shown by the evidence to have committed the crimes.

Paula and her twin sister were born June 27, 1960, and were the only children of Mrs. Gray by a Mr. Love. As recited in the presentence report: "The defendant, her sister, and the other children were raised by their mother. The mother has been on Public Aid." (Record, Volume I, p. C 62). The affidavit of Paula, made to obtain assigned counsel after her sentence in February, 1979, recites that she then had no money and no other property of any description. It is evident from the record that Paula and her family were, and for some time had been, indigent.

The record contains a report on Paula from the Cook County Office of Special Education dated September 29, 1969. This gives her Wechsler Intelligence Quotient (IQ) as 65 verbal, 57 performance, 57 full. The report states that Paula has "limited intellectual capacities in really all spheres of function [and] continues to be in need of and to remain eligible for EMH classroom placement." (EMH is understood to be an abbreviation for "Educable Mentally Handicapped"). A similar report in the record, dated June 12, 1974, shows an IQ of 69 verbal, 67 performance, and 64 full, with continued EMH classification. These figures classify Paula as mentally retarded (Stedman's Medical Dictionary 1224 (5th unabr. law. ed. (1982)).

4.

On Saturday, May 13, Officer Pastirik and other officers went to 1525 Hammond Lane. They spoke to Paula for the first time. She was there with younger children, but neither her mother nor twin sister Paulette was at home. Pastirik told Paula that they were looking for a pair of woman's boots; she consented to a search and in a closet the officers found a pair of boots which Paula said belonged to her sister Paulette. They told Paula they were taking the boots, but when her mother returned, to ask her mother to telephone them. Paula said the Grays had no telephone. The officers then said that if her mother had any question about the boots or anything else to have her come to the police station.

5.

At about 7:30 in the evening of May 13, Paula, her mother, Paulette, and younger brothers and sisters, came to the police station by their own chosen transportation; no police officer brought them.

Two officers spoke to Paula in an office at the station. Although she was not in custody, one officer explained to Paula her constitutional rights, reading from a card for the purpose. She indicated ("made some vague statements") that she would talk to them. (T 1054; "T" references are to pages of the stenographic transcript of the trial, which transcript includes also the suppression hearing which occurred during the trial). Paula "seemed scared" (T 1055). The officers asked her about this and she told them that "she was afraid of Dennis Williams" (T 1055-56).

The officers then left Paula, went to her mother and told her that Paula had information about the crimes but seemed frightened. The mother asked to see Paula. The officers took her to the office and left her alone with Paula. Some minutes later the officers went back to them and "Mrs. Gray said that Paula would cooperate" (T 1058). Mrs. Gray stayed with her and "kept saying [to Paula] to cooperate with the police" (T 1059). The officers asked who was there when the crimes were committed and Paula gave them the names of Williams, Adams, and Rainge; later she gave them the name of Jimmerson.

Meanwhile, Officer Pastirik had been talking to Paulette in another office. After a discussion, Paulette told the officer that Paula did know about the crimes, that Paula was present when they took place, and that Paula had told her (Paulette) about them on Thursday morning, May 11, about eleven o'clock, some seven or eight hours after they had occurred.

Pastirik then went with Paulette to the office where Paula and her mother were with the other two officers, who left. Pastirik, Paula, her mother, and Paulette remained. Paulette explained that she had told Pastirik "what happened, who shot them. I told him everything" (T 1219). She urged Paula: "for Mom, for everybody tell them everything" (T 1219). Then Paula told Pastirik "everything"; "Paula ran down the entire incident to me at that time" (T 1219). The information Paula told Pastirik was to become her testimony before a grand jury a few days later on May 16.

Mrs. Gray, the mother, confirmed that at the police station on May 13 she had told Paula "not to worry and just tell the police the truth" (T 1177). Paula herself admitted that her mother had told her "to trust the police and to tell them the truth" (T 978, 979).

About midnight May 13-14, Paula and three police officers went to the scene of the crimes. They looked at the apartment where the young woman had been raped and killed and Paula pointed out where the victim had lain. Paula showed them another empty apartment where she had been when she saw the arrival of Williams and others with the victims. Paula walked with the officers to the creek near where the young man was shot and Paula pointed out where Williams had thrown the gun into the water. They then returned to the police station.

While the officers were with Paula on the trip to the scene, she described the crimes to them. As to the disposal of the gun, one of the officers testified to what she said: "She explained that Dennis Williams took her to the creek to throw the gun in. Dennis held her...