US ex rel. Smith v. Cadagin
| Decision Date | 28 February 1989 |
| Docket Number | No. 87-3391.,87-3391. |
| Parties | UNITED STATES of America ex rel. Michael T. SMITH, Petitioner, v. Honorable Richard J. CADAGIN, as Judge of the Seventh Judicial Circuit, Morgan County, Illinois; Robert Burdine, Chief Probation Officer of Morgan County, IL, Respondents. |
| Court | U.S. District Court — Central District of Illinois |
Timothy M. Gabrielsen, State Appellate Defender, Springfield, Ill., for petitioner.
Neil F. Hartigan, Atty. Gen., Douglas K. Smith, Asst. Atty. Gen., Springfield, Ill., for respondents.
Habeas Corpus.
Writ to issue.
Michael T. Smith has petitioned this Court — pursuant to 28 U.S.C. § 2254 — to issue a writ of Habeas Corpus ordering Respondents to free him from the custody of the fine, restitution, costs and probation to which Petitioner was sentenced.
Petitioner claims that during cross-examination of Petitioner, the prosecutor violated the rule of Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976), and thereby violated his constitutional rights.
For the following reasons, the petition must be allowed.
The state has asked this Court to rely entirely upon the Illinois appellate court's version of the facts in ruling upon this request, citing United States ex rel. Green v. Greer, 667 F.2d 585 (7th Cir.1981). Indeed, 28 U.S.C. § 2254(d) requires that this Court presume that the state court's fact-findings are correct . The parties have not submitted the entire record, although Petitioner cites in his memorandum to segments of the record which are at odds with some of the broad statements made in the appellate court's opinion. But no matter — this Court has given the appellate court opinion the full benefit of the statutory presumption. The following facts are therefore culled entirely from the state appellate court opinion affirming Petitioner's conviction. People v. Smith, 157 Ill.App.3d 465, 109 Ill.Dec. 647, 510 N.E.2d 515 (4th Dist.1987).
The Petitioner and Alaina Turnbaugh, the "victim," met up one night in December of 1985 in the parking lot of a Jacksonville, Illinois, tavern. Petitioner, a correctional officer at a nearby correctional facility, knew Alaina as the girlfriend of a fellow guard. Petitioner saw Alaina as she sat in her car with the dome light on. He approached her car, yanked open the door, and told Alaina that she was under arrest for drug trafficking.
Petitioner and Alaina tell different stories from this point. Petitioner claims that his motive in pulling open the door was merely to pull a prank. He claims that Alaina over-reacted to his practical joke, lost her temper and attacked him. Petitioner denies having been armed during the incident, and also denies ever having struck Alaina. Instead, he claims that as she attacked him, Alaina slipped and fell, and as he helped her to her feet her blouse ripped.
Alaina testified, conversely, that after Petitioner yanked her car door open, he pointed a gun at her head and began pulling her from her car, demanding that she come with him. Alaina asked Petitioner for identification, and he showed her his identification card from the correctional center. Alaina claims Petitioner placed the gun in her mouth and threatened to kill her when she tried to escape; she struggled and broke loose as two cars pulled into the tavern parking lot.
Whichever of these versions is closer to the truth, the remainder of the story is uncontradicted. Alaina called the police from the tavern. When they arrived, they noted that her nose and mouth were bleeding and her blouse was torn; she was also crying and upset. The drivers of the two cars which pulled into the lot "testified to witnessing the struggle," 157 Ill.App.3d at 470, 109 Ill.Dec. at 650, 510 N.E.2d at 518 (). The next day the police took Alaina to the correctional facility where Petitioner worked. She identified Petitioner as her attacker from his employee identification card. A warrant was then issued for Petitioner's arrest, and a search warrant was issued for his home and car.
Petitioner was arrested and given his Miranda warnings while at work. As he was being escorted to the waiting squad car, one officer asked if Petitioner understood the charges. Petitioner answered that "it was a situation that got out of hand." He was then asked if he knew the "victim," and he answered, "she was a girlfriend of Marty Savage, another guard." The police then told Petitioner of the search warrant; he responded that no evidence was to be found in his car, but he told the officers where they might find his gun and the clothes he wore the night of the incident.
Petitioner was charged with intimidation (Ill.Rev.Stat. ch. 38, ¶ 12-6(a)(1) (1985)), unlawful restraint (Ill.Rev.Stat. ch. 38, ¶ 10-3(a) (1985)), and two counts of armed violence (Ill.Rev.Stat. ch. 38, ¶ 33A-2 (1985)).
At trial, Petitioner took the stand in his own defense, where he first related his version of the incident as set out above. On cross-examination, the prosecutor engaged Petitioner in the following colloquy:
Defense counsel objected, claiming that the questioning violated Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976). The prosecutor argued, however, that Petitioner had not remained absolutely silent after receiving his Miranda warnings, and so waived reliance on Doyle. The trial court agreed with the prosecutor and overruled the objection. The prosecutor once more mentioned Petitioner's post-Miranda silence in closing argument.1
The jury returned a verdict in Petitioner's favor on the two armed violence counts, but found him guilty of intimidation and unlawful restraint. The Court sentenced him to 30 months' probation, and ordered him to pay a fine, restitution, and court costs totalling $2,000.
Petitioner appealed his conviction on the issue of the Doyle violation. The appellate court found that the prosecutor's questioning did constitute a Doyle violation, but that the error was harmless beyond a reasonable doubt in view of other evidence introduced at trial. Smith, 157 Ill.App.3d at 469, 109 Ill.Dec. at 650, 510 N.E.2d at 518. The appellate court therefore affirmed Petitioner's conviction. The Illinois Supreme Court denied appeal, 116 Ill.2d 572, 113 Ill.Dec. 313, 515 N.E.2d 122, and so Petitioner filed the instant petition with this Court. The state concedes that Petitioner has exhausted his state judicial remedies with respect to the Doyle violation.
In support of this petition, Smith argues here, as he did before the Illinois appellate court, that a Doyle violation occurred and that the error was not harmless, and that the constitutional error thereby warrants setting his conviction aside. In response, the state first argues that the prosecutor's questioning did not constitute a Doyle violation, and that even if such a violation occurred it was harmless beyond a reasonable doubt, based upon the facts set forth in the Illinois appellate court's opinion. Finally, the state argues that even if Petitioner's "joke" defense had been believed by the jury, facts introduced were still sufficient to warrant conviction. The state therefore requests that this Court deny Petitioner's request.
Although the state does not raise the point, this Court has considered whether Petitioner is entitled to relief under § 2254 based upon the sentence he received. Section 2241(c) only allows a federal court to grant relief under § 2254 to a petitioner "in custody;" this requirement is jurisdictional. Jackson v. Carlson, 707 F.2d 943, 946 (7th Cir.), cert. denied, 464 U.S. 861, 104 S.Ct. 189, 78 L.Ed.2d 167 (1983). Petitioner here is not, nor has he been, incarcerated. Still, he meets the "in custody" requirement because at the time he filed his petition in this Court he was under a sentence of probation. The Supreme Court held, in Jones v. Cunningham, 371 U.S. 236, 83 S.Ct. 373, 9 L.Ed.2d 285 (1963), that a person on parole was "in custody" within the meaning of § 2241(c); in Drollinger v. Milligan, 552 F.2d 1220, 1224 (7th Cir.1977), the court analogized to the Jones ruling and held that a person on probation, as with a person on parole, is "in custody" for purposes of the federal habeas corpus statute. Petitioner's sentence is therefore no obstacle to the relief he seeks.
We shall begin with the state's final argument opposing this petition — that is, that Petitioner's "joke" defense would not have entitled Petitioner to an acquittal, anyway. The state argues that
This argument has no merit. The Illinois intimidation statute under which Petitioner was convicted, ...
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Smith v. Cadagin
...in the United States District Court for the Central District of Illinois. On February 28, 1989, the district court granted the writ. 707 F.Supp. 387. The government filed a notice of appeal and moved to stay execution of the writ on March 27, 1989. The motion to stay was granted on April 10......