US ex rel. Hanrahan v. Thieret

• Decision Date: 23 August 1988
• Docket Number: No. 86 C 244.,86 C 244.
• Citation: 695 F. Supp. 372
• Parties: UNITED STATES of America, ex rel. Homer E. HANRAHAN, Petitioner, v. James H. THIERET, Warden, Respondent.
• Court: U.S. District Court — Northern District of Illinois

695 F. Supp. 372

UNITED STATES of America, ex rel. Homer E. HANRAHAN, Petitioner, v. James H. THIERET, Warden, Respondent.

No. 86 C 244.

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

August 23, 1988.

Marc R. Kadish, IIT, Chicago-Kent College of Law, Chicago, Ill., for petitioner.

Neil F. Hartigan, Atty. Gen., Scott Graham, Asst. Atty. Gen., Chicago, Ill., for respondent.

MEMORANDUM OPINION AND ORDER

SHADUR, District Judge.

Homer Hanrahan ("Homer") and his son Michael Hanrahan ("Michael") were convicted in the Circuit Court of Cook County of various crimes relating to the 1974 death of Marian Hanrahan ("Marian"), Homer's wife and Michael's mother. Homer has now filed his second effort at a 28 U.S.C. § 2254 ("Section 2254") petition for writ of habeas corpus against Menard Correctional Center Warden James Thieret ("Thieret").¹ For the reasons stated in this memorandum opinion and order, this Court finds no evidentiary hearing is required and dismisses the Petition on the merits.

Background and Procedural Posture

Nearly six years have elapsed since this Court dismissed Homer's original request for Section 2254 relief for failure to exhaust state court remedies (United States ex rel. Hanrahan v. Bosse, 547 F.Supp. 721 (N.D.Ill.1982)). After Homer then brought an ultimately unsuccessful post-conviction petition, he filed a new Section 2254 petition in this action, initially acting pro se. This Court then appointed counsel to assist Homer in the presentation of his claims, and counsel filed the Amended Petition (the "Petition") on Homer's behalf.

As called for in Rule 5 of the Rules Governing Section 2254 Cases in the United States District Courts,² Thieret has answered the Petition and filed a transcript of the state trial court proceedings.³ It has taken an inordinate amount of time to get matters into condition for the current decision (not the least of the problems being extended delays because of lost or misplaced state court files and the need for multiple briefings, see n. 5).

Homer attacks his June 4, 1976 convictions for murder, aggravated kidnapping, aggravated battery and conspiracy on various grounds, including (1) asserted violations of his Sixth Amendment right to confront the witnesses against him⁴ and (2) the claimed ineffective assistance of both his trial and appellate counsel. All the issues have been fully briefed.⁵

Facts

Homer and Michael were tried jointly on the charges stemming from Marian's death. At trial the jury heard differing versions of the relevant events, including statements made by Homer and Michael to police and prosecutors and the account Homer presented in his trial testimony. Michael did not take the stand.

Because of the fact-intensive nature of some of Homer's claims, a detailed factual presentation is necessary. Rather than reinventing the wheel, this opinion reproduces as its Appendix the factual discussion from West's Illinois Decisions version (20 Ill.Dec. at 868-71) of the Illinois Appellate Court decision on Homer's and Michael's direct appeal (64 Ill.App.3d 207, 20 Ill.Dec. 866, 380 N.E.2d 1075 (1st Dist.1978)).

Additional facts will be set out as necessary in discussing Homer's legal arguments. However, because of the central role occupied by Michael's statement to Officer Raymond Giovannelli ("Giovannelli") incriminating Homer (see App. at 868-69), some elaboration on that statement is appropriate now.

Giovannelli testified Michael gave that statement about 8:30 a.m. November 22 (T. 323).⁶ Giovannelli also testified Michael had made an earlier statement upon his arrival at the station at about 7:00 a.m. (T. 215). Michael had then spoken of an argument with his mother on Wednesday evening, November 20, when he had slapped her, but he said he had seen his mother and father leave the family home at about noon on Thursday November 21 (T. 220).

Homer's counsel George Downs ("Downs") assented to the introduction of Michael's 8:30 a.m. November 22 statement during the cross-examination of Giovannelli by Michael's counsel Lawrence Suffredin ("Suffredin") (T. 303-06, 315-17), despite the prosecution's earlier agreement not to introduce Michael's alleged statement without redaction (R. 637-39). However, later in the trial, during the testimony of Assistant State's Attorney ("ASA") Gino DiVito ("DiVito"), Downs did interpose an objection under Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968) to Michael's more detailed unredacted statements given to DiVito early on Saturday morning November 23 (T. 739-42).

Pretrial, Trial and Appellate Proceedings

Before trial both defendants moved to sever their cases (R. 633-37). Judge Wayne Olson denied severance, relying in part on the agreement of ASA George Pappas ("Pappas") to redact from either defendant's statements admitted at trial any inculpatory references to his co-defendant (R. 637-39, 644-48). Homer and Michael also moved to quash their arrests, to suppress physical evidence seized by the police and to suppress statements made to the police after their arrests. After hearing extensive testimony Judge Olson denied each motion, finding there was probable cause for defendants' arrest, the police searches were reasonable and defendants' statements were made voluntarily and in compliance with the safeguards attendant to custodial interrogation (R. 626-32). Finally defendants attempted to disqualify Pappas from acting as prosecutor at trial, given his pretrial role in the investigation of the case (R. 663-70). Judge Olson denied that motion, finding no need for Pappas to appear as a witness at trial and no prejudice to defendants from his prosecuting the case (R. 668-71).

On the brink of trial — in fact after the completion of jury selection — Judge Robert Collins replaced Judge Olson in presiding over the case because of an illness in Judge Olson's family (T. 4). At trial the evidence included the various accounts of the events beginning Wednesday evening November 20, as set out in the Appendix. In addition the state produced physical evidence recovered from the Hanrahan family home, the home of Homer's girlfriend Roberta Stiles ("Stiles") and Michael's car and fraternity house room:

1. a bag of various drugs, including Sparine, and syringes 2. guns, including a handgun with traces of human blood;

3. sheets, towels and a blanket;

4. a bottle that had contained chloroform; and

5. clothing from both Homer and Michael containing bloodstains.

Finally for present purposes,⁷ the State presented the testimony of two experts. Dr. Eupil Choi ("Choi"), the coroner who performed the autopsy on Marian, testified the cause of death was acute morphine intoxication (T. 546, 568), with bruises to Marian's head and body being only a secondary cause of death or a contributing factor (T. 573, 578). As to those bruises, Choi testified there were no indications that any bleeding had resulted and no skull fracture had occurred (T. 564-66). George Christopoulos ("Christopoulos"), the chief toxicologist for the Cook County Coroner, testified as to the results of tests performed on samples from Marian's blood, urine and bile. He found a toxic level of morphine in her bile (T. 670-71), in addition to other substances in her system: a nonlethal amount of the tranquilizer Sparine (also known as promazine) (T. 697-98), a small amount of alcohol, a trace amount of chloroform and a non-lethal amount of barbiturates (T. 666-69, 684). Christopoulos also testified that of the drugs recovered by the police from the various locations, only one could be a source of morphine: Codeine in the cough medicine "Phenergan" could break down into morphine (T. 674), though five to ten "little bottles" (referring to a trial exhibit) would be required to account for the level of morphine found in Marian (T. 688).

As part of his defense, Homer presented the testimony of Ray Moehring ("Moehring"), a representative from Wyeth Laboratories, the company for which Homer had worked as a sales representative for nine months in 1967-68. Moehring testified the company's sales representatives were never given samples of hard narcotics such as morphine to distribute to doctors (T. 1220), although Wyeth did sell morphine (T. 1236).

At the end of the ten-day trial on June 4, 1976, the jury found both defendants guilty of conspiracy,⁸ aggravated battery and aggravated kidnapping (T. 1741-42). On the murder charges, Homer was found guilty and Michael was acquitted (T. 1742). Homer was sentenced by Judge Collins to concurrent sentences of 50 to 100 years on the murder charge, 20 to 40 years for aggravated kidnapping and 3 to 10 years for aggravated battery (T. 1862). Michael received a 10 to 25 year sentence for aggravated kidnapping, with a concurrent term of 3 to 10 years for aggravated battery (T. 1863).

On appeal Homer and Michael were jointly represented by Suffredin, who had been Michael's trial counsel. After reciting the facts reproduced in the Appendix, the Appellate Court held:

1. There had been probable cause for Michael's arrest, so the evidence and statements derived from his arrest were properly admitted.

2. Homer's severance motion was properly denied because any Bruton violation was negated by the "interlocking confessions" rationale of People v. Rosochacki, 41 Ill.2d 483, 244 N.E.2d 136 (1969).

3. There was no error in allowing Pappas to serve as prosecutor at trial, as his role in the pretrial investigation was "relatively minor" and there was no prejudice to defendants.⁹

Later the Illinois Supreme Court denied Homer's petition for leave to appeal (72 Ill.2d 583) and the United States Supreme Court denied his petition for certiorari (444 U.S. 828, 100 S.Ct. 53, 62 L.Ed.2d 36 (1979)).¹⁰

As already noted, this Court dismissed Homer's first habeas corpus petition, requiring him to pursue possible post-conviction relief under Ill.Rev.Stat. ch. 38, ¶¶ 122-1 to 122-7. Homer then filed a pro se petition for post-conviction...