US ex rel. Blackwell v. Franzen
| Decision Date | 07 January 1982 |
| Docket Number | No. 80C1778.,80C1778. |
| Citation | 540 F. Supp. 151 |
| Parties | UNITED STATES ex rel. Leon BLACKWELL, Petitioner, v. Gayle M. FRANZEN, et al., Respondents. |
| Court | U.S. District Court — Northern District of Illinois |
Prentice Marshall, Jr., Levy & Erens, Chicago, Ill., for petitioner.
Kenneth A. Fedinets, Asst. Atty. Gen., Chicago, Ill., for respondents.
Leon Blackwell ("Blackwell") was convicted of murder and burglary March 9, 1977 in the Circuit Court of Cook County. After exhausting all available state remedies Blackwell brought what is now his Amended Petition for a Writ of Habeas Corpus (the "Petition")1 charging that he was denied rights under the Due Process Clause of the Fourteenth Amendment and the Confrontation Clause of the Sixth Amendment.2 Respondents have moved to dismiss or for summary judgment and Blackwell has filed a cross-motion for summary judgment. For the reasons stated in this memorandum opinion and order respondent's motion is denied and Blackwell's motion is granted.
On June 4, 1975 someone broke into and burglarized the home of Agnes Bookham, an elderly lady, and murdered Ms. Bookham. Blackwell was tried and convicted by a jury for both burglary and murder.
Only the testimony of Harris Orange ("Orange") connected Blackwell to the crimes. Orange testified that he, Blackwell and Charlita Ponce ("Ponce") had joined in the break-in and burglary and that the other two (but not he) had taken part in the actions that led to Ms. Bookham's death.3 Orange too had initially been indicted for both burglary and murder. But on August 6, 1976, almost one year after he had been charged, Orange agreed to testify for the prosecution. In exchange, Orange pleaded guilty to burglary and the state dropped the murder charge. Under that arrangement Orange testified at Blackwell's trial and provided the state's only directly incriminating evidence.
On cross-examination Orange's credibility came under serious attack, for he admitted that:
But the most critical attack—and the one that has led to this action—was the attempt by Blackwell's counsel to imply that Orange was fabricating testimony to avoid a prosecution for murder. On redirect the prosecutor responded by offering into evidence the transcript of an oral confession Orange had made shortly after his arrest August 30, 1975. That confession, made before any deal was struck with the State, was entirely consistent with Orange's testimony at trial.
Once the confession was introduced it became a principal focal point of the prosecution's case. It was read to the jury at the close of the State's case and then emphasized by the prosecutor both in closing argument and in rebuttal (when he mentioned it six times).
On recross-examination Blackwell's attorney questioned Orange about the circumstances under which the confession was given (Tr. 159-60):
Late in the recross-examination, however, Orange was asked (Tr. 172):
Blackwell contends that the evidence revealed on recross-examination indicated Orange's confession was not voluntary. Blackwell argues its admission into evidence without first conducting a hearing to determine whether it was in fact voluntary violated due process.5
Respondents counter that Blackwell lacks standing to assert Orange's Fifth Amendment right. But Blackwell is not advancing another's Fifth Amendment right. Instead he urges that his own due process rights were violated because inherently unreliable evidence—an involuntary confession—was admitted.
Two Courts of Appeals have addressed that issue: LaFrance v. Bohlinger, 499 F.2d 29 (1st Cir. 1974); Bradford v. Johnson, 476 F.2d 66 (6th Cir. 1973), affirming on the opinion in 354 F.Supp. 1331 (E.D.Mich.1972). Each decision found a due process violation when a witness' involuntary confession was admitted into evidence. But each dealt with a somewhat more egregious situation than this one.
In LaFrance the witness recanted at trial the statements made in the earlier confession and stated that the earlier confession was the product of coercion.6 As already noted, at trial Orange both affirmed his earlier statement and said that it was voluntary. LaFrance held that a hearing as to voluntariness was required but that (499 F.2d at 35):
The government would not violate Napue by offering a statement which it believes to be voluntary simply because a witness, in order to bolster a changed story, charges that he was intimidated by improper police tactics. But if the charge is stated under oath and a factual issue established, the court and the government may not simply brush it aside.
That language implies that the witness must indicate that he gave a false statement as a result of coercion before a hearing need be held.
In Bradford the witness' testimony at trial was consistent with his prior confession. But the Court found that (354 F.Supp. at 1336):
The in-court testimony of a witness obtained by these means when he must surrender himself immediately after to those persons who tortured him, does not comport with due process. Payne's statement in court that his in-court testimony was not coerced is, under the above circumstances, worthless since it is affected by the same coercion.
There is no evidence that Orange was under the threat of any physical harm at the time of Blackwell's trial. There is though a direct nexus between Orange's confession and his trial testimony, given his plea bargain to testify consistently with the challenged confession (Tr. 116-17).
LaFrance and Bradford thus stand for the principle that a confession cannot be admitted in the face of clear evidence that it is unreliable either because (1) the statement is later recanted in court or (2) the witness had been subjected to torture and faced its possible resumption after the trial. At the other end of the spectrum is Harris v. New York, 401 U.S. 222, 224, 91 S.Ct. 643, 645, 28 L.Ed.2d 1 (1971), in which a defendant was held properly impeached by a prior inconsistent statement obtained in violation of his Miranda rights:
It does not follow from Miranda that evidence inadmissible against an accused in the prosecution's case in chief is barred for all purposes, provided of course that trustworthiness of the evidence satisfies legal standards.
Orange's confession falls somewhere in between. Simple failure to give Miranda warnings does not of course carry the inference of a false statement (the rule is rather a prophylactic one), whereas physical abuse generally implies an almost inherent unreliability. But Orange testified that the confession was voluntary, and his testimony at trial was fully consistent with that confession. Were both those areas of testimony not suspect in light of Orange's plea-bargain commitment, the trial court's action might be viewed only as an erroneous evidentiary ruling.
Such errors usually do not rise to the level of due process violations. It is well settled that, Brinlee v. Crisp, 608 F.2d 839, 850 (10th Cir. 1979):
State court rulings on the admissibility of evidence 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.
While this case poses a close call, the Court is disposed to find constitutional error in the trial judge's decision not to hold a hearing on the voluntariness of the confession.
True enough, there were indicia of reliability despite Orange's testimony that he was beaten. But those indicia were themselves open to question. All such questions should have been resolved by a hearing to comport with due process.7 In any case, the closeness of the issue is more than resolved by the issue next discussed.
Immediately after Orange testified that the confession had been given of his "own free will," Blackwell's attorney sought to ask Orange whether the voluntariness of the confession had been challenged in court (Orange said his lawyer had done so) and whether that challenge had followed a discussion between Orange and his lawyer. That line of inquiry was blocked by the trial judge when the prosecutor (!) asserted Orange's attorney-client privilege. Blackwell's attorney then made an offer of proof that Orange would have testified that he told his attorney the confession was false and he was "beaten into making that statement." Blackwell contends that the refusal to permit those questions violated his Sixth Amendment right to confront an adverse witness.
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