U.S. ex rel. Searcy v. Greer

• Decision Date: 26 July 1985
• Docket Number: No. 84-2997,84-2997
• Citation: 768 F.2d 906
• Parties: UNITED STATES of America ex rel. Paul K. SEARCY, Petitioner-Appellee, v. Jim GREER, Warden, Respondent-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 906

768 F.2d 906

UNITED STATES of America ex rel. Paul K. SEARCY, Petitioner-Appellee, v. Jim GREER, Warden, Respondent-Appellant.

No. 84-2997.

United States Court of Appeals, Seventh Circuit.

Argued Feb. 22, 1985.

Decided July 26, 1985.

Jack Donatelli, Office of Illinois Atty. Gen., Chicago, Ill., for petitioner-appellee.

Howard S. Suskin, Jenner & Block, Chicago, Ill., for respondent-appellant.

Before CUMMINGS, Chief Judge, BAUER, Circuit Judge, and SWYGERT, Senior Judge.

BAUER, Circuit Judge.

Paul Searcy was convicted of rape, deviate sexual assault, armed violence, and home invasion by a jury in an Illinois state court for an attack which occurred in Chicago, Illinois, on July 29, 1979, and was sentenced to four concurrent eighteen-year sentences. Searcy's conviction was affirmed by the Illinois Appellate Court. Searcy's original petition for a writ of habeas corpus was dismissed without prejudice by the district court because he had failed to exhaust his state court remedies by not seeking leave to appeal to the Illinois Supreme Court. The Illinois Supreme Court denied Searcy leave to appeal and he renewed his petition in the district court raising two claims. ¹ First, Searcy asserted that he was denied a fair trial because evidence of an unrelated crime was erroneously admitted at his trial. Second, Searcy maintained that he was denied a fair trial because the trial court refused to grant him a continuance to obtain certain alibi witnesses. On the basis of both claims, the district court granted the petition. We now reverse.

I. FACTS

Fannie Lee Hardin testified in the state trial that on July 29, 1979, she was living in a first floor apartment in Chicago with her two-year-old son. Her husband was away from home on duty in the Air Force. At about 4:00 or 4:30 a.m. her son, who was asleep in her bedroom, began to whine. She awoke to discover a man picking her son out of his bed and pointing a gun at the child's head. She could see the man because there was light coming from a flashlight on top of the dresser about a foot from her bed and from a building light located outside her bedroom window. The man, whom she later identified as defendant, told her to move to the foot of the bed or he would kill her son.

The assailant put the child in a rocking chair and told her to raise her gown. He held the gun in his pocket, grabbed her hair and told her to open her mouth. He forced her to perform oral sex for about a minute, and then pushed her back on the bed and had intercourse with her for a couple of minutes. She did not know if the man ejaculated. While this was occurring the man threatened to kill the crying child unless she could quiet him. The assailant asked her where her husband was but she did not answer. He then had intercourse with her a second time for about a minute and a third time for a few seconds. He did not ejaculate either time. She heard a bump or knock in the living room and the assailant told her to get on the floor and put her head down. When she reached for the rocking chair to get her son the assailant hit her with the back of his hand. She nevertheless grabbed her son and put her head on the floor. The man told her to count to 100 and he left the apartment. The entire incident lasted 15 to 20 minutes.

After she counted to six she got up, telephoned her mother, and brushed her teeth. She went into the living room and noticed the window was up and the curtains thrown apart. She went into the kitchen and discovered that her purse, containing about $150, a radio, calculator, and alarm clock, was missing and the kitchen door was open. Her mother arrived about five minutes after the phone call, and a few minutes later the police arrived. She was crying and nervous and complied with the police officers' request to go to the hospital. After remaining at the hospital for several hours she went to her mother's home.

On August 14 or 15, 1979, the two police officers showed her six or seven photographs of black males. She recognized a man in one of the photos as the man who raped and assaulted her. The photograph was of Searcy. On August 15 she viewed a lineup at police headquarters. At trial she was shown a color photograph of the lineup and she marked an "X" and her initials over Searcy's head. She then identified Searcy sitting in the courtroom as her assailant. Both prior to trial and at the conclusion of her cross-examination, defense counsel requested the six or seven photographs which were originally shown to her on August 14 or 15. After being informed that the photos had not been inventoried and could not be produced, defense counsel moved for a mistrial. The trial judge denied the motion but gave defense counsel the option of recalling complainant for further cross-examination or to have the court inform the jury to disregard her testimony regarding those photographs. Defense counsel opted for the latter alternative. Her mother and a police officer testified for the state and corroborated her testimony.

During the trial, the state called three witnesses to testify regarding an attempted burglary that occurred on July 30, 1979, one day after Hardin was attacked and only a block and a half from her apartment. Over the defendant's objection, and without an evidentiary hearing, the trial court allowed admission of the evidence as valid to show modus operandi.

Joyce Christmas testified that at about 3:45 a.m., she was awakened by a noise under her bedroom window. She looked out her first floor window, which was about six feet above the ground, and saw a man balanced on a sun porch while holding the corner of the building. The man jumped down after she looked at him from a distance of only a few inches. A light was attached to the building near where the man was standing. The window, which was covered with drapes and a shade, was cracked open and the screen shut when she went to bed. When she looked out the window after first hearing the noise the screen was pulled up. She pulled the screen down and went into the kitchen. When she returned to the bedroom the screen had been pulled up again. She looked out the window and saw the same man standing on the sidewalk. She later identified that man as Searcy.

Brenda Williams, who lived on the first floor of the building next to Mrs. Christmas's, testified that she also was awakened at about 3:45 a.m. on July 30, 1979. She looked out her front room window and saw defendant about ten steps away. Defendant took off his pants and underwear, left them on the ground, and climbed the bricks of the building next door attempting to get into Mrs. Christmas's window. She saw him lift Mrs. Christmas's screen. At this time, Brenda Williams was about ten to fifteen feet from the man.

Chicago police officer Don Williams testified that at about 3:45 a.m. on July 30, 1979, he responded to a call from a residence in the neighborhood to investigate a burglary in progress. He talked to two people and received a description of the man they had seen. He then drove his squad car around the area. While driving near Hardin's apartment he saw defendant, who fit the description given by Christmas and Williams. Defendant was cooperative and agreed to accompany the police to the location of the attempted robbery. When they drove up with defendant in the back seat, Christmas and Williams said defendant was the man they had seen outside Christmas's window.

The Illinois Appellate Court held that it was error for the trial court to admit the evidence regarding Searcy's behavior on July 30 as evidence of modus operandi. The Illinois Appellate Court held that although both crimes were committed in the same neighborhood at approximately the same time in the early morning only one day apart, these facts were not sufficiently distinctive to amount to a modus operandi. The court went on to hold, however, that it considered the evidence harmless beyond a reasonable doubt in view of Hardin's positive identification and the strength of the state's case against Searcy.

The district court issued the writ of habeas corpus in this case in part because it determined that the evidence of the events of July 30 could not be harmless beyond a reasonable doubt. The district court disagreed with the state appellate court's conclusion that the admission of the second offense was harmless error and concluded that this testimony "was no doubt prejudicial to petitioner." The district court granted the writ and the Warden appealed.

II. ADMISSION OF OTHER CRIME EVIDENCE

The Warden does not dispute in this appeal the Illinois Appellate Court's conclusion that the other crimes testimony introduced during Searcy's trial was inadmissible. The dispute in this case is whether that error rendered Searcy's trial fundamentally unfair and thus an error cognizable in a federal habeas corpus proceeding. The Illinois Appellate Court held that the error of introducing the evidence was harmless; the district court found that the inadmissible evidence was "no doubt prejudicial," and therefore not harmless.

Trial rules regarding the admissibility of evidence in a state criminal trial are matters of state law. Violations of state evidentiary laws generally do not form the basis upon which federal habeas corpus relief can be granted. A habeas proceeding concerns only whether federal constitutional rights were infringed. Spencer v. Texas, 385 U.S. 554, 87 S.Ct. 648, 17 L.Ed.2d 606 (1967); United States ex rel. DiGiacomo v. Franzen, 680 F.2d 515, 517 (7th Cir.1982) (per curiam). Violations of state evidentiary rules, therefore, "may not be questioned in federal habeas proceedings unless they render the trial so fundamentally unfair as to constitute a denial of federal constitutional rights." Brinlee v. Crisp, 608 F.2d 839, 850 (10th Cir.1979), cert. denied, 444 U.S. 1047, 100 S.Ct. 737, 62 L.Ed.2d 733 (1980).

The other crimes evidence in this case did not create a fundamentally unfair trial....