Wade v. Franzen

• Decision Date: 18 May 1982
• Docket Number: No. 81-1954,81-1954
• Citation: 678 F.2d 56
• Parties: Willie WADE, Petitioner-Appellant, v. Gayle FRANZEN, Director, Illinois Department of Corrections, and Marvin Reed, Warden, Stateville Penitentiary, Respondents-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 56

678 F.2d 56

Willie WADE, Petitioner-Appellant, v. Gayle FRANZEN, Director, Illinois Department of Corrections, and Marvin Reed, Warden, Stateville Penitentiary,

Respondents-Appellees.

No. 81-1954.

United States Court of Appeals, Seventh Circuit.

Argued April 6, 1982.

Decided May 18, 1982.

Fe Fernandez, Asst. Deputy State Appellate Defender, Chicago, Ill., for petitioner-appellant.

David Bindi, Asst. Atty. Gen. of Ill., Crim. Just. Div., Chicago, Ill., for respondents-appellees.

Before BAUER and POSNER, Circuit Judges, and GRANT, Senior District Judge. ^*

POSNER, Circuit Judge.

Willie Wade was convicted of murder by a jury in an Illinois state court and sentenced to 50 to 100 years in prison. The Illinois Appellate Court affirmed his conviction with full opinion. People v. Wade, 71 Ill.App.3d 1013, 27 Ill.Dec. 822, 389 N.E.2d 1230 (1979). After exhausting his state remedies Wade filed a petition for habeas corpus in federal district court. The district court denied the petition and Wade has appealed. He raises two issues. The first is whether Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964), entitled him to a separate hearing, outside of the presence of the jury, on the voluntariness of his confession. The second is whether he was denied the right to effective assistance of counsel. The issues are interrelated. Counsel forfeited Wade's right to a separate hearing on the voluntariness of his confession by refusing to comply with the procedural requirements for such a motion. Since the reasonableness of those requirements is not questioned, we are barred by Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977), from reaching the merits of the first issue unless we find that Wade was denied effective assistance of counsel.

Wade lived with his 18-year-old girlfriend, Denise, in an apartment on the ground floor of a building where he was the janitor. Hill was a tenant who was living with an ex-girlfriend of Wade's. One night there was a party in Hill's apartment which ran very late. At 4:00 a. m. someone bumped into the sink in the bathroom of the apartment, the sink fell off the wall, and water poured from the pipes into the apartment. Hill went to fetch Wade to stop the flood. Wade came and made efforts to do so that were only partially successful, and then left the apartment, followed by Hill. In the hallway outside Wade's apartment they got into an argument. Hill accused Wade of having made advances to Hill's girlfriend (Wade's ex-girlfriend) and when she rebuffed them of having drawn a gun on her. Wade entered his apartment, grabbed a rifle from behind the sofa, returned to the hallway, and there shot Hill repeatedly in the chest. Wade and Denise dragged the body out to the alley behind the apartment building and then came back to mop up the blood in the hallway. There they were found, acting "nervous," by Hill's girlfriend, who had gone looking for Hill when he did not return to his apartment. Another member of the party in Hill's apartment also went looking for Hill, saw blood in the boiler room, found Hill's body in the alley, and called the police. When the police arrived they saw blood on Wade's trousers and took both Wade and Denise into custody. Wade confessed. Denise, an eyewitness to the murder, testified against him, under a grant of immunity, at his trial. The blood on Wade's trousers turned out to be of Hill's blood type, not Wade's. The murder weapon was never found.

Wade was represented at trial by the lawyer for the building's owner. He was a real estate lawyer who had never tried a felony (let alone a murder) case before, may never have tried any kind of criminal case before, and had little if any knowledge of criminal procedure. His first blunder involved the question of a separate hearing on the voluntariness of Wade's confession. Before confessing to the murder, Wade had been questioned for several hours while handcuffed to the wall of the police station without his trousers, which had been removed to check out the stains; and misrepresentations may have been made to him concerning Denise's statement to the police. Although the circumstances did not establish involuntariness as a matter of law, they raised enough questions to warrant a separate hearing and Wade's lawyer in fact moved for one. But he refused to comply with a local court rule, the validity of which is unchallenged, that the movant attest to the truth of the facts alleged in the motion. The lawyer was afraid that attestation would be treated as a waiver of Wade's right not to be forced to incriminate himself. It would not have been. See Simmons v. United States, 390 U.S. 377, 389-94, 88 S.Ct. 967, 973-76, 19 L.Ed.2d 1247 (1968). This was plain error on the lawyer's part; no conceivable tactical motive can be attributed to his action.

Having waived his best pretrial motion, Wade's lawyer proceeded to make a number of silly motions, such as one to forbid any mention of how Hill had died. All were denied, with the trial judge expressing some doubt as to counsel's familiarity with criminal procedure. Then in his opening statement counsel hurt his client's cause by denying that Wade had carried a rifle to a room on the second floor and hidden it there and that Wade had said "I just shot that nigger." The "facts" denied had not been mentioned in the prosecutor's opening statement and there is no indication that the prosecution intended to establish them or could have done so.

Cross-examination of the state's witnesses actually buttressed the state's case. For example, cross-examining a witness who testified that she saw Denise carrying a blanket but did not in her testimony suggest any connection between the blanket and the crime, Wade's lawyer asked whether the blanket was large enough to cover a body and whether Denise had been using it to mop up blood. He asked a police officer whether the officer remembered being told that Wade was carrying a gun on the night of the murder; when the officer could not recall, Wade's lawyer refreshed his recollection with a police report stating that, yes Wade had been seen carrying a gun. Finally, the lawyer threw away the one fact in Wade's favor-that the murder weapon had never been found-by suggesting to witnesses places where the gun might have been hidden and the police had failed to look.

These pratfalls raise grave doubts concerning the competence of Wade's lawyer. The state is reduced to far-fetched imaginings concerning a possible strategy behind the lawyer's tactics, and to stating: "All attorneys must start somewhere." Although the Illinois Appellate Court found that Wade had not been denied effective assistance of counsel, it applied the wrong standard. It distinguished between cases where counsel is assigned to an indigent defendant and cases such as the present where he is represented by retained counsel, and held that in the latter case " 'the court will not reverse a conviction because of the incompetency of counsel unless the representation is of...