United States ex rel. Jones v. Morris

• Decision Date: 25 March 1977
• Docket Number: No. 76 C 4096.,76 C 4096.
• Citation: 430 F. Supp. 478
• Parties: UNITED STATES of America ex rel. Darnell JONES, Petitioner, v. Ernest E. MORRIS et al., Respondents.
• Court: U.S. District Court — Northern District of Illinois

430 F. Supp. 478

UNITED STATES of America ex rel. Darnell JONES, Petitioner, v. Ernest E. MORRIS et al., Respondents.

No. 76 C 4096.

United States District Court, N. D. Illinois, E. D.

March 25, 1977.

Francis Sowa, Jack Uretsky Asst. Public Defenders, James J. Doherty, Public Defender, Chicago, Ill., for petitioner.

Patrick J. Calihan, Asst. Atty. Gen., Chicago, Ill., for respondent.

DECISION

McMILLEN, District Judge.

Petitioner has filed for a writ of habeas corpus on the ground that he was deprived of his Sixth Amendment right of confrontation. Respondents filed a motion to dismiss, supported by the transcripts of the proceedings in the State trial court and Illinois Appellate Court which we take to be their Answer to the Petition. (Rule 5 of the Federal Rules Governing Section 2254 Cases, effective February 1, 1976.) The motion to dismiss is sufficient to present all of the facts in this case, and no evidentiary hearing is necessary. Therefore, we are in a position to make a final disposition of the petition as provided in Rule 8(a).

Petitioner was convicted of murder and attempted armed robbery by a jury in the Circuit Court of Cook County. The conviction was affirmed by the Appellate Court, First District. 34 Ill.App.3d 103, 339 N.E.2d 485. That court ruled, at p. 107, 339 N.E.2d at p. 488, that

... the restrictions imposed in the instant case on the impeachment cross-examination of Dolita Tate, when viewed in the context of the totality of her positive and uncontradicted testimony, resulted in no manifest prejudice to defendant. Therefore, the trial court did not abuse its discretion.

Leave to appeal was denied by the Illinois Supreme Court, and a petition for writ of certiorari was denied by the United States Supreme Court on July 21, 1976. 426 U.S. 953, 96 S.Ct. 3179, 49 L.Ed.2d 1192 (1976).

With all due deference, upon a full review of the record and the law, we find and conclude that the rulings of the trial court deprived the petitioner of his right to confront the witness under the Sixth Amendment to the Constitution of the United States. Therefore, the petitioner should be released, subject to the State's right to retry the petitioner within the requirements of the Illinois Speedy Trial Act. Ill.Rev. Stat. (1975) Ch. 38, § 103-5.

The only eye-witness who testified and in fact the only witness on the merits was Dolita Tate, a twelve year old girl. She testified that, shortly after the murder, she could not pick out a picture of the petitioner when asked to look through three books of photographs. On the following day she gave a description to a police artist who made a sketch which was subsequently introduced at trial. Two days after the offense, she picked the petitioner's picture out of a group of six photographs, and the next day she identified him in a six man line-up.

At a pretrial hearing to suppress identification, Dolita testified that her mother told her that the police wanted her to go to the line-up for the purpose of identifying an individual who was in custody and whose picture she had previously picked out. Also at this hearing she testified that, on the way to the line-up, the police likewise told her that the purpose was to see if the man whose picture she had identified was in the line-up. Without any further conditioning, she identified the petitioner at the line-up. (Abstract pp. 6-8). The motion to suppress identification was denied.

At the trial on the day following the pretrial hearing, Dolita testified that neither her mother nor the police officers told her anything about the individual in the line-up before she picked him out, neither that he had been arrested nor that the individual whose picture she had picked out was in the line-up. (Abstract pp. 24-26). She testified that her mother did not tell her that the man whose picture she had picked out was in custody, and that the police officers only told her so after she had picked the petitioner out of the line-up. The petitioner's attorney then asked her on cross examination whether or not she knew, before attending the line-up, that the man whose picture she had previously selected had been arrested. Petitioner's attorney undoubtedly intended to then ask her whether or not she had testified on the motion to suppress that she had been so advised by her mother and also by the police officers en route to the station. An objection to the first question in this line of inquiry was sustained and the jurors instructed to disregard it. The trial judge also denied a continuance for the purpose of obtaining a transcript of the testimony of the witness given on the motion to suppress.

To compound this interference with cross examination, the prosecutor argued to the jury in closing that petitioner's attorney did not contend that Dolita had been impeached "because there was nothing to talk about". An objection to this argument was made by petitioner's attorney, but no ruling is reflected in the transcript which is attached as Exhibit B to the petition. Although it may be correct that there was no evidence of impeachment presented to the jury, it is also apparent from the record that the witness could have been impeached by her testimony given at the suppression hearing. Whether she would...