US ex rel. White v. Lane

• Decision Date: 21 February 1992
• Docket Number: No. 89 C 9056.,89 C 9056.
• Citation: 785 F. Supp. 768
• Parties: UNITED STATES of America ex rel. Derrick WHITE, Petitioner, v. Michael P. LANE and Neil F. Hartigan, Respondents.
• Court: U.S. District Court — Northern District of Illinois

785 F. Supp. 768

UNITED STATES of America ex rel. Derrick WHITE, Petitioner, v. Michael P. LANE and Neil F. Hartigan, Respondents.

No. 89 C 9056.

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

February 21, 1992.

Derrick White, pro se.

Patrick Alan Tuite, Patrick A. Tuite, Ltd., Chicago, Ill., for Derrick White.

Terence Madsen, Illinois Atty. General's Office, Chicago, Ill., for respondents.

MEMORANDUM OPINION

BRIAN BARNETT DUFF, District Judge.

Petitioner, Derrick White, is currently serving a 27 year sentence for murder. He was convicted of the murder of Edward Sanders who was fatally shot on January 31, 1981, while riding as a passenger in a taxicab. White seeks habeas corpus relief under 28 U.S.C. § 2254 and petitions the court to review the constitutionality of his conviction.

Background

Following a 1986 jury trial in the circuit court of Cook County, Illinois, White was found guilty of murder. His motions for a mistrial and a new trial were denied by the trial court.

White then appealed to the Illinois Appellate Court. In his appeal, White made three arguments in favor of reversal. First, White argued that it was reversible error for the trial court to have admitted the prior inconsistent statements of his former girlfriend (Joan Gilbert). According to White, the State called Gilbert as a witness only to introduce prior hearsay statements under the pretense of impeachment. Second, White argued that the prosecutor made an impermissible allusion to White's failure to testify. Finally, White argued on appeal that he was not proven guilty of murder beyond a reasonable doubt.

The Illinois Appellate Court for the First Division reversed and remanded to the trial court for a new trial on the grounds that the trial court had committed reversible error by admitting the prior inconsistent statements of Joan Gilbert. Before reaching the issue, the Court first had to grapple with the State's argument that White had waived this issue by his failure to raise it in his motion for a new trial. White claimed that by making a timely objection at trial, he preserved the issue for appeal.

The Illinois Appellate Court agreed with White that he successfully preserved the issue on appeal. It wrote:

The general rule is that if a defendant fails to raise an alleged error in his written motion for a new trial, the alleged error is waived and will not be considered as being properly before the court for review. (People v. Picket Pickett (1973), 54 Ill.2d 280, 283, 296 N.E.2d 856; People v. Precup (1978), 73 Ill.2d 7, 16, 21 Ill.Dec. 863 382 N.E.2d 227.) However, the defendant's timely objection during the trial to the State's attempt to introduce Gilbert's prior hearsay statements was sufficient to allow the trial judge to consider the issue, thereby satisfying the purpose of the post-trial motion rule. (People v. Moody (1979), 75 Ill.App.3d 674, 682, 31 Ill.Dec. 441 394 N.E.2d 643; People v. Norris (1972)), 8 Ill.App.3d 931, 935, 291 N.E.2d 184.) Therefore, this issue is preserved for appeal.

People v. White, No. 86-1612, slip op. at 7 (Ill.App. 1st Dist. April 25, 1988) ("White I").

The appellate court then reviewed the State's attempt to elicit testimony, over defense objection,¹ regarding a conversation Gilbert allegedly had with defendant White. According to the appellate court, Gilbert's prior inconsistent statements were read into the record twice, once during the direct examination of Gilbert and once during the direct examination of a police detective (Detective McGuire). The appellate court opinion summarized Gilbert's and McGuire's testimony as follows:

Joan Gilbert testified that on January 31, 1981, she was the defendant's girlfriend. However, she did not see the defendant on that date, but did see him on February 1, 1981, at the police station when police officers came to her home at 6656 South Stewart in Chicago and took her to the police station for questioning. Gilbert denied making any statements to any police officers or the assistant State's Attorney at the police station. Gilbert also testified that she was interviewed by an assistant State's Attorney and a policeman about a month before the trial. They read to her statements in a police report that she allegedly made in 1981, and she told them that she had not made those statements. She stated that on her way to the police station the only thing she said to the police was that she `wasn't aware of anything that had happened.' The State attempted to impeach Gilbert with evidence of her prior statements to the police.

She further testified that an assistant State's Attorney told her that she could be charged with perjury if she did not admit to making the 1981 statement.

Detective McGuire testified that he was present when the assistant State's Attorney interviewed Gilbert and she was not threatened with a perjury charge. McGuire further testified that Gilbert made the statements to him regarding the offense that she denied making during her testimony. However, he did testify that he was aware that Gilbert had denied making the prior statements before trial.

White I, at 5-6.

The court then quoted the prosecutor's questioning of Gilbert regarding her alleged prior inconsistent statements:

Q: Do you recall telling the detectives that Derrick White and Drake Hudsell came to the apartment about 1:30 in the morning on January 31, 1981?

A: No, I did not.

Q: Did you tell the police officers that when Derrick and Binkie arrived at your home, Derrick gave you a gun and told you that he had done something wrong?

A: No.

Q: You did not say that?

A: No, I didn't.

Q: Did you tell the police officers at your house, at that time, that Detective Flood and McGuire, that Derrick told you to keep the gun, that he had to leave.

A: No.

Q: Did you tell the police officers that Derrick left at the time with Drake Hudsell and he returned about 10:30 or— strike that—about 5:30 the next morning?

A: No.

Q: Did you also tell the police officers that when Derrick White came back about 5:30 in the morning, he remained at your apartment until about 10:30 in the morning?

A: No.

Q: Did you tell the police officers, Detective Flood and McGuire, that while at the apartment at this time, the defendant, Derrick White, told you that he had shot someone and that she had the gun that was used.

A: No.

Q: Did you tell police officers that Derrick then left the apartment and he never returned?

A: No.

Id. at 7-8.

The appellate court then ruled that the trial court committed reversible error in allowing the State to question Gilbert regarding her alleged prior inconsistent statements and also in questioning McGuire regarding them. Citing People v. Johnson, 333 Ill. 469, 165 N.E. 235 (1929), the court stated that the prosecution may not introduce otherwise inadmissible evidence under the guise of impeachment. Acknowledging that prior inconsistent statements may be used for impeachment, the court nonetheless insisted that the direct examination was a misuse of impeachment and that the State's purpose was actually to put before the jury inadmissible hearsay.

The appellate court also noted that the rule against the abuse of prior inconsistent statements is the same in the federal courts. It quoted the Seventh Circuit's statement on the matter:

It would be an abuse of Rule 607, in a criminal case, for the prosecution to call a witness that it knew would not give it useful evidence, just so it could introduce hearsay evidence against the defendant in the hope that the jury would miss the subtle distinction between impeachment and substantive evidence—or, if it didn't miss it, would ignore it. The purpose would not be to impeach the witness but to put in hearsay as substantive evidence against the defendant, which Rule 607 does not contemplate or authorize. We thus agree that `impeachment by prior inconsistent statement may not be permitted where employed as a mere subterfuge to get before the jury evidence not otherwise admissible.'

United States v. Webster, 734 F.2d 1191, 1192 (7th Cir.1984), quoting United States v. Morlang, 531 F.2d 183, 190 (4th Cir. 1975). The appellate court concluded that "the State knew that Joan Gilbert would deny making the prior inconsistent statements for at least a month before the trial." White I at 10. It pointed out that Gilbert testified that she told the assistant State's attorney as well as "some detectives" that she did not make the prior statements and Detective McGuire confirmed during his testimony that before trial Gilbert denied ever making the prior statements attributed to her. Id. Accordingly, the court ruled that the State's effort to "impeach" Gilbert was in actuality a ruse to sneak in inadmissible hearsay evidence relating to White's culpability.

The Illinois appellate court also ruled that the trial court failed to instruct the jury not to consider Gilbert's alleged prior statements for their substantive content. The trial court gave IPI Criminal Instruction No. 3.11 at the end of the trial. The instruction provided that:

The believability of a witness may be challenged by evidence that on some former occasion he made a statement that was not consistent with his testimony in this case. Evidence of this kind may be considered by you only for the purpose of deciding the weight to be given the testimony you heard from the witness in the courtroom.

The court found that giving Instruction No. 3.11 at the end of the trial was not a sufficient safeguard to ensure that the Gilbert's alleged prior statements would not be considered for their substantive content.

Derrick White's victory proved to be short-lived, however. The State petitioned the appellate court for a rehearing which the appellate court granted. In its petition, the State argued that under People v. Enoch, 122 Ill.2d 176, 119 Ill.Dec. 265, 522 N.E.2d 1124 (1988), White had waived his argument about the State's misuse of Gilbert's prior statements because he failed to include...