United States ex rel. Shaw v. DeRobertis

• Decision Date: 13 February 1984
• Docket Number: No. 82 C0889.,82 C0889.
• Citation: 581 F. Supp. 1397
• Parties: UNITED STATES of America ex rel. Phil SHAW, Petitioner, v. Richard DeROBERTIS, Warden, Stateville Correctional Center, and Tyrone Fahner, Attorney General of the State of Illinois, Respondents.
• Court: U.S. District Court — Northern District of Illinois

581 F. Supp. 1397

UNITED STATES of America ex rel. Phil SHAW, Petitioner, v. Richard DeROBERTIS, Warden, Stateville Correctional Center, and Tyrone Fahner, Attorney General of the State of Illinois, Respondents.

No. 82 C0889.

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

February 13, 1984.

COPYRIGHT MATERIAL OMITTED

Phil Shaw, pro se.

Marcia Friedl, Asst. Atty. Gen., Chicago, Ill., for respondents.

MEMORANDUM AND ORDER

MORAN, District Judge.

Petitioner, Phil Shaw, is serving a sentence of 40 years at Stateville Correctional Center after a jury convicted him of murder. His conviction was affirmed by the Illinois Appellate Court in People v. Shaw, 98 Ill.App.3d 682, 54 Ill.Dec. 84, 424 N.E.2d 834 (1st Dist.1981), and the Illinois Supreme Court denied his petition for leave to appeal on November 30, 1981. In this court Shaw seeks issuance of a writ of habeas corpus on the same grounds that he unsuccessfully raised in the Illinois Appellate Court: (1) that a prior consistent statement of a state's witness should not have been introduced as an exception to the prohibition against hearsay evidence; (2) that the court erred in instructing that only the defense attorney who was conducting cross-examination could make appropriate objections; and (3) that prosecutorial misconduct during closing argument deprived him of due process. Respondents have moved for summary judgment and petitioner has cross-moved for summary judgment. After a thorough examination of the state court proceedings the court concludes that petitioner's claim of prosecutorial misconduct warrants habeas corpus relief.

I. REVIEW OF THE RECORD

The Illinois Appellate Court determined that petitioner's claims of prosecutorial misconduct did not warrant disturbing the jury verdict or the trial court's judgment below. The state court arrived at this conclusion "in light of the fact" that a "guilty verdict was the only reasonable conclusion to be reached based on the evidence," and the fact that "the trial judge promptly sustained objections to most of the improper remarks". This finding will be critical to the disposition of petitioner's prosecutorial misconduct claims if it is entitled to a presumption of correctness under Sumner v. Mata, 449 U.S. 539, 101 S.Ct. 764, 66 L.Ed.2d 722 (1981). Sumner held that the habeas corpus statute requires federal courts to presume that the factual findings of a state trial or appellate court are correct unless certain statutory exceptions apply. See 28 U.S.C. § 2254(d) (1976).¹ The questions to be decided, therefore, are (1) whether the state court finding in this case is a "factual finding" entitled to the § 2254(d) presumption, and (2) whether any of the statutory exceptions apply.

"Issues of fact" as used in 28 U.S.C. § 2254(d) are "basic, primary, or historical facts: facts in the sense of a recital of external events and the credibility of their narrators". Townsend v. Sain, 372 U.S. 293, 309 n. 6, 83 S.Ct. 745, 755 n. 6, 9 L.Ed.2d 770 (1963) (quoting Brown v. Allen, 344 U.S. 443, 73 S.Ct. 397, 97 L.Ed. 469 (1953) (opinion of Frankfurter, J.)). See United States ex rel. Rivers v. Franzen, 692 F.2d 491, 497 (7th Cir.1982). Conclusions of law, however, or mixed determinations of law and fact, are not entitled to the presumption of correctness under § 2254(d). Sumner v. Mata ("Sumner II"), 455 U.S. 591, 597 and n. 9, 102 S.Ct. 1303, 1306 and n. 9, 71 L.Ed.2d 480 (1982) (per curiam) (citing Cuyler v. Sullivan, 446 U.S. 335, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980); Brewer v. Williams, 430 U.S. 387, 97 S.Ct. 1232, 51 L.Ed.2d 424 (1977); Neil v. Biggers, 409 U.S. 188, 193 n. 3, 93 S.Ct. 375, 379 n. 3, 34 L.Ed.2d 401 (1972)). See also United States ex rel. Rivers v. Franzen, supra; United States ex rel. Cosey v. Wolff, 682 F.2d 691, 693 (7th Cir.1982).

The line between issues of fact and conclusions of law, or mixed determinations of law and fact, is often difficult to draw with precision. Cf. United States ex rel. Rivers v. Franzen, supra. Prior case law, however, provides some guidance as to how the state court findings in this case should be classified. In Moore v. Duckworth, 687 F.2d 1063 (7th Cir.1982), where the jury was prevented, under Indiana's rape shield law, from being told that the victim was pregnant by her boyfriend, the court accorded the presumption of correctness to the Indiana Supreme Court's finding that the record did not indicate that the jury knew the victim was pregnant. Similarly, the finding of the Indiana trial and supreme court that petitioner never requested an attorney although advised of that right was held to be a determination of fact under Sumner and § 2254(d) in Holleman v. Duckworth, 700 F.2d 391 (7th Cir.1983).

The Seventh Circuit has also characterized various state court determinations as involving mixed questions of law and fact and therefore not entitled to the presumption of correctness under § 2254(d). See, e.g., United States ex rel. Rivers v. Franzen, supra (question of bona fide doubt as to defendant's competency to stand trial); United States ex rel. Scarpelli v. George, 687 F.2d 1012 (7th Cir.1982), cert. denied, ___ U.S. ___, 103 S.Ct. 817, 74 L.Ed.2d 1015 (1983) (question of whether trial court violated defendant's right to cross-examine witness regarding prior inconsistent statements); United States ex rel. Cosey v. Wolff, supra, (question of lack of effective assistance of counsel).

The Supreme Court has stated that while the circumstances of pretrial identification procedures present questions of fact to which the § 2254(d) presumption applies, the ultimate question as to the constitutionality of pretrial identification procedures is a mixed question of law and fact that is not governed by § 2254. Sumner II, 455 U.S. at 597, 102 S.Ct. at 1306. Similarly, a distinction was drawn between a factual determination and the application of law to fact in United States ex rel. Gorham v. Franzen, 675 F.2d 932 (7th Cir.1982). In Gorham petitioner alleged that a confession had been obtained after he had refused to make a statement, and had therefore been introduced at trial in violation of his Fifth Amendment rights. Gorham held that the determination by the state appellate court that petitioner had equivocated as to whether he wished to make a statement was entitled to a presumption of correctness by the district court unless the finding was not fairly supported by the record. 675 F.2d at 936. The question of whether petitioner had exercised his right to remain silent was a separate determination, however, which was a conclusion of law or at least a mixed determination of law and fact. Id.

In this case, the appellate court's finding regarding the sufficiency of the evidence does not present a "basic, primary or historical fact" in the sense of a "recital of external events and the credibility of their narrators," but is more in the nature of the ultimate question of constitutionality presented in Sumner II. The appellate court's ruling that a guilty verdict was the only reasonable conclusion involves an evaluation of the evidence that this court is required to make under the harmless error doctrine whenever a habeas petitioner claims that prosecutorial comment deprived him of a fair trial.² A finding of no harmless error is an integral part of the ultimate determination of unconstitutionality; it is, in effect, the legal standard by which such claims are judged and is thus not subject to the Sumner presumption. This court must therefore review the evidentiary record to decide the constitutional question raised.

Critical to a resolution of this petition is that the factual issue presented to the jury was whether or not petitioner was the person who shot Edward Lewis. The state did not seek to convict petitioner as an aider or abettor or as a conspirator or in any capacity other than as the man who pulled the trigger. The weight of the evidence, then, has to be measured against the burden the state assumed.

It is undisputed that on March 14, 1978, just before closing his liquor store at approximately 2:00 a.m., Edward Lewis let two men into the store, one of whom pulled a gun and shot and killed Lewis. The grand jury subsequently returned an indictment charging petitioner and Ricardo White with Lewis' murder (C. 8).³ Petitioner was represented by the public defender, and a privately-retained lawyer, William Wood, appeared on behalf of co-defendant White (C.IA, C.6 C.31). The public defender's motion for a severance was granted (C.IA, C.26), and the cases were tried simultaneously, White having waived a jury trial (R.83, 86-87, 279-80).⁴

At trial the state sought convictions on the theory that Shaw actually fired the bullets that killed Lewis⁵ while White was guilty of murder as an accomplice. Thus, the dispute at trial centered around two questions: (1) the identities of the two men in the liquor store, and (2) the identity of the man who pulled the trigger. With respect to the charges against Shaw, the state put on the stand three eyewitnesses to the crime: Lillian Farmer and Marva Davis, the cashiers in the liquor store, and Grandville Farmer, Lillian's husband, who was waiting outside the store in a car when the incident occurred.

The state's eyewitness testimony placed petitioner in the liquor store but was not wholly free of uncertainties. At trial both Lillian Farmer and Marva Davis identified petitioner as one of the two men who entered the liquor store the morning of the shooting (R. 296, 370). Mrs. Farmer had seen both petitioner and White before, and had seen both defendants in the liquor store earlier that evening (R. 295, 304-5). Marva Davis testified that she had known petitioner and White for about three years prior to the shooting incident, and stated that both of them came in the store often (R. 368, 373). Additionally, Mr. Farmer had identified petitioner in a police lineup on the day of the shooting (R. 410).

Despite the fact that all...