US ex rel. Dunmore v. Camp

• Decision Date: 26 October 1988
• Docket Number: No. 88 C 3880.,88 C 3880.
• Citation: 698 F. Supp. 715
• Parties: UNITED STATES of America ex rel. Willie DUNMORE, Petitioner, v. Aletha CAMP, Respondent.
• Court: U.S. District Court — Northern District of Illinois

698 F. Supp. 715

UNITED STATES of America ex rel. Willie DUNMORE, Petitioner, v. Aletha CAMP, Respondent.

No. 88 C 3880.

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

October 26, 1988.

Sam Adam, Chicago, Ill., for petitioner.

Arleen C. Anderson, Asst. Atty. Gen., Chicago, Ill., for respondent.

MEMORANDUM OPINION AND ORDER

SHADUR, District Judge.

Willie Dunmore ("Dunmore") has filed a petition for writ of habeas corpus (the "Petition") under 28 U.S.C. § 2254 ("Section 2254") against his custodial Warden Aletha Camp ("Camp"). Camp has filed an Answer to the Petition, and both sides have filed briefs in support of their positions. For the reasons stated in this memorandum opinion and order, the Petition is denied in accordance with Rule 8(b) of the Rules Governing Section 2254 Cases in the United States District Courts ("Section 2254 Rule 8(b)").

Procedural Background

After a jury trial in the Circuit Court of Cook County, Dunmore was found guilty of theft and conspiracy on July 2, 1985, then sentenced to a seven-year prison term and ordered to pay $12,500 in restitution. On direct appeal he unsuccessfully asserted (see People v. Dunmore (1st Dist.1987) 162 Ill.App.3d 1164, 124 Ill.Dec. 222, 528 N.E.2d 1113 (table)):

1. the trial court had improperly admitted:

(a) evidence of his voice exemplars and

(b) a lay witness' opinion as to voice identification;

2. he had not been proved guilty beyond a reasonable doubt; and

3. his constitutional rights had been violated at the time of his arrest.

Dunmore requested leave to appeal to the Illinois Supreme Court, which denied such leave on February 3, 1988. Dunmore then filed his original Petition in this District Court.

Dunmore's Claims

Dunmore's Petition advances two grounds for relief:

1. Admission at trial of tape recordings of Dunmore's voice exemplars violated his Fifth Amendment right against self-incrimination.¹

2. Allowing the State's Attorney's investigator to identify Dunmore's voice as that of the person committing the crime, based on an extended conversation between the investigator and Dunmore in his attorney's absence, violated his Fifth and Sixth Amendment rights.

Examination of both claims requires a brief account of the circumstances under which the conversation took place and the exemplars were later obtained.

Dunmore was convicted of involvement in a "pigeon drop" scam. Although the victim never met Dunmore in person, she had many conversations on the phone with a man called "George Kramer." Pursuant to a court order, several of those conversations were monitored and taped by an investigator. On the strength of the investigation a warrant was issued for Dunmore's arrest.

Before he was taken into custody, Dunmore (with no attorney present) had a 15-minute non-interrogational conversation with the investigator. Based on that conversation, the investigator identified Dunmore's voice as that of George Kramer.

Some days later the investigator obtained the voice exemplars of Dunmore in this fashion:

1. After the investigator listened to the tapes of the recorded conversations with George Kramer, he repeated them using the same tone, words and inflection.

2. Dunmore was then asked to imitate the investigator while speaking into a telephone, and his voice was taped on another telephone.

This opinion first turns to the claim stemming from that procedure, then to the earlier conversation.

Self-Incrimination

Dunmore first contends he was forced to incriminate himself in violation of his Fifth Amendment rights by being required to speak in an unnatural voice. Although his voice exemplars were never submitted to voice print analysis,² they were admitted into evidence at trial.

For present purposes, the Fifth Amendment analysis begins with the rule that only compelled "communication" or "testimony," and not real or physical evidence, is privileged (United States v. Dionisio, 410 U.S. 1, 6, 93 S.Ct. 764, 767, 35 L.Ed.2d 67 (1973)). That means Fifth Amendment protection does not extend to compulsion "to write or speak for identification, to appear in court, to stand, to assume a stance, to walk, or to make a particular gesture" (id., citing Schmerber v. California, 384 U.S. 757, 764, 86 S.Ct. 1826, 1832, 16 L.Ed.2d 908 (1966)).

Nothing in that catalogue requires that the compelled actions — none of which violates the privilege against self-incrimination — must be natural. Under the teaching of Dionisio Dunmore could be called on to speak in a certain way, whether or not it is a "natural" manner for him, without violating his Fifth Amendment rights. And the resulting exemplars, when used to compare his voice to that of "George Kramer," were no more testimonial than a blood sample or a fingerprint.

In re Special Federal Grand Jury, 809 F.2d 1023 (3d Cir.1987) has recently reconfirmed that line of analysis in a closely related context. There a witness was subpoenaed to provide both normal handwriting samples and special backslanted samples. Grand Jury, id. at 1026 rejected the claim that such contrived samples constituted a testimonial admission that the witness had actually disguised his handwriting previously, noting it was clear the witness was merely complying with directions. As the court put it (id.):

Acts involved in the production of evidence are not testimonial merely because they give rise to a series of inferences which may lead to identifying a witness as the perpetrator of a crime.

Here too the evidence of Dunmore's voice exemplars was admitted along with testimony as to how it was prepared. Here too there was no indication that the jury was misled as to how the exemplars were taken. And here too the fact that the exemplars, when compared with the taped conversations, led to inferences that Dunmore and "George Kramer" were one and the same does not render them testimonial. To the extent that In re Layden, 446 F.Supp. 53 (N.D.Ill.1978) may be viewed as holding otherwise, this Court declines to follow its lead.

Absence of Counsel

This Court finds it unnecessary to reach Dunmore's claim that obtaining the voice identification evidence in the absence of his attorney violated his Fifth and Sixth Amendment rights. Camp correctly contends that ground for relief was waived by Dunmore's failure to raise it in a timely fashion.

That claim was raised for the first time in Dunmore's pro se appellate reply brief. Failure to argue an issue in an opening brief constitutes waiver under Illinois Supreme Court Rule 341(e)(7), Ill.Rev. Stat. ch. 110A, ¶ 341(e)(7) ("Rule 341(e)(7)"):

Points not argued in appellant's brief are waived and shall not be raised in the reply brief, in oral argument, or on petition for rehearing.

Read literally, Rule 341(e)(7) compels the conclusion that Dunmore has waived this claim. Earlier this year this Court has held such a literal reading comports with both the purposes of the Rule and the Illinois cases applying it (United States ex rel. Garner v. McEvers, 690 F.Supp. 635, 637-38 (N.D.Ill.1988)).

In this instance, however, a bit more analysis is required. It is necessary to consider the effect of a portion of the opinion of the Illinois Appellate Court on direct review of Dunmore's conviction (slip op. at 5-6):

Finally, even if we were to assume for the sake of argument that the defendant has not waived this issue by failing to specifically raise it earlier than in his pro se appellate reply brief, we find no support in the record for his belated and imprecise assertions that his constitutional rights were violated at the time of arrest.

That one sentence was the totality of the Appellate Court's treatment of what is now the second issue raised in the Petition.

In this proceeding Dunmore first asserts the appellate opinion reflects a determination that he has not waived his rights. But that reading cannot be reconciled with the plain language of the Appellate Court, which (1) clearly found Dunmore did not raise the issue earlier than his own reply brief and (2) specifically adverted to the waiver consequence of such a late submission (obviously a result attributable to Rule 341(e)(7))....