United States ex rel. Crist v. Lane
Decision Date | 05 August 1983 |
Docket Number | No. 83 C1339.,83 C1339. |
Citation | 570 F. Supp. 999 |
Parties | UNITED STATES of America ex rel. Gilbert CRIST, Petitioner, v. Michael LANE, Respondent. |
Court | U.S. District Court — Northern District of Illinois |
James J. Doherty, Public Defender of Cook County, Hugh Stevens, Asst. Public Defender, Chicago, Ill., for petitioner.
Neil F. Hartigan, Atty. Gen. of Ill., David E. Bindi, Asst. Atty. Gen., Chicago, Ill., for respondent.
Gilbert Crist ("Crist"), a prisoner at the Pontiac Correctional Center, brings this habeas corpus proceeding under 28 U.S.C. § 2254 against Illinois Department of Corrections Director Michael Lane ("Lane"). Crist's habeas petition asserts the state prosecutor at his trial infringed his Fifth Amendment rights against self-incrimination by commenting on his refusal to testify. Each side has filed a motion for summary judgment. For the reasons stated in this memorandum opinion and order, Lane's motion is granted and Crist's is denied.
There is no dispute as to any of the relevant facts. But to insure all reasonable inferences are indulged in Crist's favor,1 this Court will adopt the factual account presented by Crist in the "Statement of Facts" section of his state appellate brief (at 7-8):
Russell later identified Crist as his assailant at a police lineup.
Crist was tried by a jury on seven counts: attempt murder, armed robbery, armed violence and four counts of aggravated battery. At the trial Russell and two police officers testified for the state. As was its right, the defense then rested without presenting any evidence.
During his initial closing argument, prosecutor Wadas commented, "It's uncontradicted and undenied Russell saw the defendant three times..." (R. 197). Crist's trial counsel Fox then said in his closing argument:
A person charged with a crime does not have to testify. Gilbert Crist didn't testify in this case. You promised that you would not hold that against him. But remember this, ladies and gentlemen, Gilbert Crist pled not guilty in this case. He didn't have to plead not guilty. He could have pled guilty but chose to plead not guilty and by that fact alone he's telling you that he did not commit these crimes. (R. 204-05)
During Wadas' rebuttal, the following colloquy took place:
Crist was convicted on all seven counts and was sentenced to concurrent 20-year terms on the counts of attempt murder, armed robbery and armed violence, and five years on each count of aggravated battery. On direct appeal Crist's counsel failed to mention his habeas claim in his appellate briefs. However, at the beginning of oral argument he did assert the constitutional impropriety of the quoted portions of Wadas' remarks in his rebuttal argument (Stevens Aff. ¶ 8). Counsel also apprised the Illinois Appellate Court those remarks "echoed" Wadas' earlier comment as to Russell's uncontradicted testimony that he saw Crist three times (Stevens Aff. ¶ 9).
In affirming Crist's conviction, the Appellate Court found no reversible error in the "several instances of allegedly improper comments by the prosecutor." People v. Crist, 108 Ill.App.3d 1208, 68 Ill.Dec. 583, 446 N.E.2d 317 (1st Dist.1982). Though the Court did not specifically identify those "allegedly improper comments," its analysis clearly indicates Wadas' comments attacked by Crist's habeas petition were among those considered:
On November 30, 1982 the Illinois Supreme Court denied Crist's Petition for Leave To Appeal. Crist then brought this habeas proceeding.
To win on the cross summary judgment motions, Crist must prevail on three issues:
Neither of Wadas' comments at issue implicated Crist's Fifth Amendment rights. As for his describing Russell's testimony as "uncontradicted and undenied" — an indirect or arguably inferential, rather than a direct, reference to Crist's failure to testify2 — our Court of Appeals has stated the operative test several times in recent years. In United States v. Buege, 578 F.2d 187, 188-89 (7th Cir.), cert. denied, 439 U.S. 871, 99 S.Ct. 203, 58 L.Ed.2d 183 (1978) the Court said:
And most recently in United States v. Hastings, 660 F.2d 301, 303 (7th Cir.1981), rev'd on other grounds sub nom. United States v. Hasting, ___ U.S. ___, ___-___, 103...
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