US Ex Rel. Collins v. Welborn, 93 C 5282

• Citation: 868 F. Supp. 950
• Decision Date: 04 November 1994
• Docket Number: 93 C 5328.,No. 93 C 5282,93 C 5282
• Parties: UNITED STATES ex rel. Roger COLLINS, Petitioner, v. George WELBORN, Warden, Menard Correctional Center, Respondent. UNITED STATES ex rel. William BRACY, Petitioner, v. Richard GRAMLEY, Warden, Pontiac Correctional Center, Respondent.
• Court: U.S. District Court — Northern District of Illinois

868 F. Supp. 950

UNITED STATES ex rel. Roger COLLINS, Petitioner, v. George WELBORN, Warden, Menard Correctional Center, Respondent.

UNITED STATES ex rel. William BRACY, Petitioner, v. Richard GRAMLEY, Warden, Pontiac Correctional Center, Respondent.

Nos. 93 C 5282, 93 C 5328.

United States District Court, N.D. Illinois, Eastern Division.

August 24, 1994.

Opinion Denying Motions to Alter or Amend November 4, 1994.

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Robert H. Farley, Jr., Robert H. Farley, Jr., Ltd., Naperville, IL, Stephen E. Eberhardt, Chicago, IL, for petitioner Collins.

Steven J. Zick, Terence Madsen, Chicago, IL, for respondent Welborn.

Gilbert H. Levy, Seattle, WA, Martin Carlson, Chicago, IL, for petitioner Bracy.

Terence Madsen, IL Atty. Gen. Office, Chicago, IL, for respondent Gramley.

MEMORANDUM OPINION AND ORDER

HART, District Judge.

Roger Collins and William Bracy¹ were found guilty of armed robbery, aggravated kidnapping, and the murders of Frederick Lacey, R.C. Pettigrew, and Richard Holliman in a joint, jury trial in the Circuit Court of Cook County, Illinois. The offenses were committed in 1980. Following a two-staged sentencing hearing, Collins and Bracy were both sentenced to death on the murder convictions. Each was also sentenced to concurrent terms of 60 years' incarceration on the armed robbery and aggravated kidnapping charges. On appeal, the kidnapping sentences were each reduced to 30 years. All the convictions were affirmed as were the sentences of death. People v. Collins, 106 Ill.2d 237, 87 Ill.Dec. 910, 478 N.E.2d 267 ("Collins I"), cert. denied, 474 U.S. 935, 106 S.Ct. 267, 88 L.Ed.2d 274 (1985). Post-conviction relief was denied by the trial court and that denial was affirmed. People v. Collins, 153 Ill.2d 130, 180 Ill.Dec. 60, 606 N.E.2d 1137 (1992) ("Collins II"), cert. denied, ___ U.S. ___, ___, 113 S.Ct. 2355, 2356, 124 L.Ed.2d 263, 264 (1993). Collins and Bracy then filed separate federal habeas corpus petitions raising a number of claims. The two cases were consolidated. Presently pending are respondents' motions to deny the two petitions.²

                                     TABLE OF CONTENTS
                  I. FACTUAL BACKGROUND ......................................... 959
                 II. EXHAUSTION, WAIVER AND DEFAULT ............................. 963
                III. GROUNDS ASSERTED FOR RELIEF ................................ 967
                     A. Exclusion of African-Americans from Jury ................ 967
                     B. Nellum's Testimony — Discovery and a Hearing ............ 968
                     C. Prosecutorial Misconduct ................................ 970
                        1. Waiver ............................................... 970
                        2. Standard ............................................. 970
                        3. During Presentation of Evidence ...................... 971
                        4. Closing Arguments .................................... 972
                        5. Sentencing Phase Arguments ........................... 976
                     D. Sufficiency of Evidence ................................. 978
                        1. Murder ............................................... 978
                        2. Armed Robbery ........................................ 978
                

                     E.  Illegal Search ..........................................  980
                     F.  A Judge's Wife on Jury — Discovery and a Hearing ... 981
                     G.  Ineffective Assistance of Counsel .......................  985
                     H.  Death Qualified Jurors ..................................  986
                     I.  Denial of Continuance for Sentencing Hearing ............  986
                     J.  Death Penalty Instructions ..............................  989
                     K.  Death Penalty Statute Unconstitutional ..................  990
                     L.  Trial by Judges who accepted Bribes, Discovery ..........  990
                     M.  Fabricated Rope Evidence ................................  991
                     N.  Severance ...............................................  991
                     O.  Nowell Impeachment Evidence .............................  991
                     P.  Brady Claim Related to Nellum ...........................  992
                     Q.  Punishment Alternatives and Dangerousness ...............  992
                     R.  Involuntary Confession ..................................  993
                     S.  Impeachment with Silence ................................  993
                     T.  Loss of the Common Law Record ...........................  993
                

I. FACTUAL BACKGROUND

Collins I summarizes the facts:

"On November 12, 1980, sometime after 10 p.m., Frederick Lacey, R.D. Pettigrew and Richard Holliman were taken from apartment 206 at 2240 South State Street in Chicago, placed in a red Oldsmobile, and driven to a viaduct at Roosevelt Road and Clark Street, where they were shot to death. Police officers investigating at the scene found Lacey lying on the ground on the driver's side of the automobile. Pettigrew was lying partially under the right front bumper with pieces of rope and cloth tied around his right wrists. Three expended shotgun shells were found near his body. Holliman was discovered in the back seat, his hands bound with cloth. The record shows that Lacey had been shot in the back of the head. Pettigrew, in addition to being shot in the face, chest and leg, had four shotgun wounds in his back. Holliman had been shot three times in the chest and once in the back of the neck.

"The chief prosecution witness was Morris Nellum, who admittedly took part in the crimes. To secure his testimony, the State agreed to recommend a sentence of three years in protective custody in exchange for Nellum's guilty plea to three counts of concealing a homicidal death. The State also agreed to relocate his family.

"As to the events which occurred on the night of November 12, 1980, Nellum testified as follows. He was with his girlfriend, Regina Parker, at her apartment at 2222 South State Street. At approximately 9:30 p.m., Collins came to the apartment and asked him to go to apartment 206 at 2240 South State, saying he had something he wanted Nellum to take care of. Nellum went to that location, arriving approximately 10 minutes later. In one of the bedrooms he observed Collins, Bracey, Hooper, and three men he did not recognize. Two of the men, later identified as Pettigrew and Holliman, were on the bed with their hands bound. The third, later identified as Lacey, was standing at the side of the bed. Collins asked Nellum to drive his (Collins') brown Cadillac to Roosevelt Road and Clark Street because `Collins was going to drop some people off, leave them tied up and he wanted me to pick him up.' Nellum took Collins' keys and went to the parking lot outside the building where Collins' Cadillac was parked. He observed Collins, wearing a wide-brim hat, Bracey, Hooper, and the three victims emerge from the building and walk to the red Oldsmobile. The three victims were placed in the rear seat; Collins and Hooper got in the front seat, with Collins driving. Bracey meanwhile went to his own automobile, which was parked nearby. After the two vehicles departed, Nellum waited a few minutes as instructed, and then followed. As he approached the viaduct at Roosevelt Road and Clark Street, he heard a series of shots. Immediately thereafter, he saw Bracey, carrying a sawed-off shotgun, and Hooper run to Bracey's automobile. Collins got in his own car alongside Nellum. As they sped from the scene, Collins said: `That damn Hooper. I told him to wait until — I wanted to use the shotgun because they can't trace the shotgun, but he used the gun instead.' According to Nellum, the two vehicles returned to the parking lot at 2240 South State, where Bracey gave him $125 and told him `Just be cool.' Nellum then drove with Collins to 31st Street and Lake Michigan, where Collins threw two handguns into the lake. Nellum identified a .38-caliber Charter Arms revolver and a .357 Rigueur revolver as the weapons that were thrown in the lake.

"On cross-examination Nellum testified that he did not know the reason for the killings but that he went along for a `piece of the action.' He also testified that about two months after the murders Hooper told him that $1,800 had been taken from the victims. His credibility was weakened by his admission that he lies when he has to, although he stated that his testimony and statements to the police had been truthful. Yet, he admitted he lied to the police concerning the location of the two handguns. Following his arrest, Nellum denied any knowledge of the whereabouts of the weapons. Three weeks prior to trial, however, he directed the authorities to 31st Street and Lake Michigan, where the guns were recovered by divers. Nellum also testified that he decided to cooperate after prosecutors informed him they would not charge him with murder, but would instead recommend a three-year sentence in exchange for his guilty plea to three counts of concealing a homicidal death.

"Under further cross-examination, Nellum denied knowing the victim Lacey and said he could not recall ever having his picture taken with him. The defendants, however, introduced into evidence a series of photographs taken in August of 1980 which showed Nellum and Lacey together with a number of other individuals.

"Daretha Redmond testified that she lived in a first-floor apartment at 2240 South State. Sometime after 10 p.m. on the night of the murders, she saw a group of about five men, two of whom appeared to be tied, walk past her living room window. Approximately one month later, she was questioned by the police and shown about 40 photographs. Redmond testified she identified photographs of Collins, Nellum and Hooper as resembling men that were in the group. She further testified that the man leading the group wore a wide-brim hat and that he could have been Collins.

"On cross-examination Redmond stated she had never seen Bracey before. She also stated that because she did not see the face of the man who was leading the...