United States ex rel. Williams v. Lane
| Decision Date | 09 October 1986 |
| Docket Number | No. 85 C 9794.,85 C 9794. |
| Citation | 645 F. Supp. 740 |
| Parties | UNITED STATES of America, ex rel. Robert Lee WILLIAMS, Petitioner, v. Michael LANE, et al., Respondents. |
| Court | U.S. District Court — Northern District of Illinois |
James J. Doherty, Public Defender of Cook County, Alison Edwards, Asst. Public Defender, Chicago, Ill., for petitioner.
Neil F. Hartigan, Atty. Gen. of Ill., Sally L. Dilgart, Asst. Atty. Gen., Chicago, Ill., for respondents.
Petitioner was convicted of rape in state court and sentenced to ten years in prison. Pursuant to 28 U.S.C. § 2254 he now petitions for a writ of habeas corpus, contending that his constitutional rights were violated when the prosecution improperly commented on petitioner's failure to testify.
The following is a summary of the facts presented at trial. Diane Williams, the complaining witness and no relation to petitioner, testified that she knew petitioner as an auto mechanic she had employed to fix her automobile in front of her house. She denied ever seeing him socially. She testified that on the night of the incident petitioner had asked to go along with her and another woman to a disco lounge and had accompanied them there, but could not get in because his dress was improper. He met with them again about 4 a.m. and, after an unsuccessful effort to find another party, he offered to drive her home. As she was being driven home by petitioner on December 1, 1982, at about 5 a.m., he stopped his car on the shoulder of the Dan Ryan Expressway. Petitioner allegedly ordered Diane to engage in sexual intercourse with him. A wrestling match ensued, during which he took her head and forcibly threw it against the car door. Petitioner then held a razor to Diane's throat, pulled her pants off and forced her to have sexual intercourse with him. Afterward he drove to a gas station and left Diane alone in the car. A few minutes later he drove her home. When Diane arrived at home she awoke her mother and told her that she had been raped. Her mother called the police. The police came to the home and took Diane to the hospital for an examination. On January 31, 1983, Diane saw petitioner in a lounge and called the police, who promptly arrested him.
Mamie Williams, the victim's mother, testified that when Diane came home that night she was crying, nervous, very shook up, and said that she had been raped. Mamie called the police and went with Diane to the hospital. A crime lab technician testified that she had found the presence of spermatozoa in vaginal smears taken from Diane, and her testimony was corroborated by Officer Ellis. Officer Benoad also testified for the prosecution regarding the arrest and made an in-court identification of petitioner.
It was stipulated that the hospital doctor who examined Diane found that her wrist had been bruised, but found no evidence of vaginal trauma. Both sides also stipulated to the police report describing Diane as not injured and to a report by a hospital nurse's assistant stating "patient (Diane) denies injury." At the preliminary hearing Diane denied receiving any injury.
Petitioner did not testify. Only Vanessa Baker and Vernita Kendall, friends of petitioner, testified for the defense. Vanessa Baker testified that she had introduced Diane to petitioner in September of that year because the former's car needed repair and the latter is a car mechanic. After that, but before the alleged rape, Vanessa Baker saw the two together at a card game at her mother's house. Later that evening Vanessa, Diane and petitioner went to a Halloween party together. (Tr. 199-200.) Vernita Kendall corroborated Vanessa Baker's testimony regarding the card game and the three going off together to a Halloween party. She also testified that, in her opinion, Diane and Bob Williams were not dating.
Petitioner was tried before a jury on July 15, 1983, Judge George Marovich presiding, and guilty verdicts on charges of rape and unlawful restraint were returned. On August 12, 1983, the court sentenced Williams to concurrent prison terms of ten years for rape and three years for unlawful restraint. On appeal the court affirmed the rape conviction but vacated the conviction for unlawful restraint. On February 26, 1985, the Illinois Supreme Court denied the petition for leave to appeal. Petitioner brings this federal habeas corpus action, asserting that the prosecution improperly commented on petitioner's failure to testify during its closing argument at trial.
In its closing argument the prosecution made nine references to the petitioner's failure to testify. The prosecution first referred to the events that occurred the night of the alleged rape in its summation:
You cannot guess, you cannot conjecture as to what happened out there. The evidence in this case is uncontradicted, unrebutted and undisputed.
(Tr. 217.) A second prosecutor made eight references to petitioner's failure to testify in rebuttal. Discussing the evidence presented by the defense, the prosecution noted:
Counsel brought you a list of things that he says discredits the testimony of Diane Williams. Let's go over them again and I agree, the issue is whether you believe Diane. Remember her uncontradicted and unrebutted testimony?
(Tr. 228.) Referring to petitioner's use of force on his victim, the prosecution said:
And remember her testimony, the uncontradicted, unrebutted testimony of Diane Williams?
(Tr. 229.)
By force and against her will, and we proved that beyond a reasonable doubt. She told it to you and nobody else told you anything different.
(Tr. 230.) At this point defense attorney objected. The court noted the objection but did not give any instruction to the jury regarding petitioner's constitutional right to remain silent. Immediately thereafter the prosecution commented on the victim and petitioner's relationship:
Where is the evidence that this was a date? Where is the evidence? Who got up on this witness stand and told you that these two were dating?
(Tr. 230.) The defense again objected. A sidebar was had off the record and the prosecution was warned about making references to the petitioner's refusal to testify. The prosecutor stated that he would not so comment (Certification by Trial Court entered Nov. 21, 1983). However, when the prosecutor continued, he said:
Thank God it the victim's head wasn't smashed enough to bruise it and that evidence is uncontradicted or unrebutted.
(Tr. 231.) Next, in describing the events on the night of the alleged rape, the prosecutor said:
Her uncontradicted testimony is that she was raped, that he pulled her pants down and had a razor in his hand and he forced sexual intercourse. That is the evidence.
(Tr. 233.) Lastly, in closing, he remarked:
The testimony of Diane Williams, as it stands, is uncontradicted and clear. She was raped by this guy.
(Tr. 236-37.) The trial judge also certified that:
During this line of argument, prior to the sidebar, the prosecutor punctuated his remarks by pointing at the witness stand.
(Certification by Trial Court entered Nov. 21, 1983.)
The Constitution guarantees a fair trial under the Fifth, Sixth and Fourteenth Amendments. Petitioner claims that he was denied a fair trial in the state court proceeding. The Supreme Court has ruled that a federal court has the power to examine federal constitutional issues even after trial and review by the state courts. Brown v. Allen, 344 U.S. 443, 469, 73 S.Ct. 397, 413, 97 L.Ed. 469 (1953). In accord, 28 U.S.C. § 2254 provides that the federal courts shall entertain an application for a writ of habeas corpus "in behalf of a person in custody pursuant to the judgment of a state court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States." See Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977).
Improper prosecutorial argument may warp the fact-finding process of the jury by deflecting its attention away from consideration of the evidence presented at trial. Smith v. Phillips, 455 U.S. 209, 217, 102 S.Ct. 940, 946, 71 L.Ed.2d 78 (1982). Direct reference by a prosecutor to a defendant's decision not to testify is always a violation of defendant's Fifth Amendment right against self-incrimination. Griffin v. California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106 (1965). Comments that are indirect references to the defendant's failure to testify are highly disfavored but are not automatic grounds for reversal. United States v. Muscarella, 585 F.2d 242 (7th Cir.1978). Usually the line of demarcation between constitutionally permissible and unacceptable commentary is quite difficult to draw. Indirect references to the defendant's failure to testify are constitutionally impermissible if "the language used was manifestly intended to be or was of such a character that the jury would naturally and necessarily take it to be a comment on the defendant's failure to testify." United States ex rel. Burke v. Greer, 756 F.2d 1295, 1300 (7th Cir.1985).
Petitioner alleges that a constitutional error occurred during closing argument when several references were made by the prosecution to petitioner's failure to testify. After reviewing the record, we believe that the underlying purpose and ultimate effect of prosecutors' comments was to call attention to petitioner's failure to testify.
The crucial inquiry in evaluating the prejudice conveyed by indirect reference to a failure to testify is a consideration of how the jury would view the closing argument as a whole. ... Repeated references to "uncontradicted" testimony is likely to cause the jury to view the closing argument as a commentary on defendant's failure to testify and as a suggestion to view that failure to testify as indicative of guilt.
Burke, 756 F.2d at 1302. This is especially...
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