Williams v. Lane
| Decision Date | 03 September 1987 |
| Docket Number | No. 86-2842,86-2842 |
| Parties | Robert Lee WILLIAMS, Petitioner-Appellee, v. Michael LANE, Director, Department of Corrections, and Neil F. Hartigan, Attorney General of the State of Illinois, Respondents-Appellants. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Alison Edward, Asst. Pub. Defender, Chicago, Ill., for petitioner-appellee.
Sally L. Dilgart, Office of Illinois Atty. Gen., Chicago, Ill., for respondents-appellants.
Before CUMMINGS and POSNER, Circuit Judges, and FAIRCHILD, Senior Circuit Judge.
Petitioner was convicted in an Illinois circuit court of rape and unlawful restraint and sentenced to terms of imprisonment of ten and three years respectively. The Illinois Appellate Court (1st Dist.) affirmed the rape conviction but vacated the conviction and sentence for unlawful restraint. The Illinois Supreme Court subsequently denied leave to appeal. Petitioner proceeded to file a petition for a writ of habeas corpus in federal district court pursuant to 28 U.S.C. Sec. 2254. Petitioner alleged that his constitutional rights were violated when the prosecution improperly commented on his failure to testify. The district court granted the writ and respondents appeal. For the reasons set forth below, we affirm.
The following evidence was presented at the 1983 trial. Diane Williams, the complaining witness and no relation to petitioner, testified that she had previously hired petitioner, an auto mechanic, to fix her car, but she denied that she had ever seen him socially. She testified that on the night of November 30, 1982, petitioner accompanied her and another woman to a disco lounge but was refused entrance because he was not properly dressed. He agreed to return at 4:00 a.m. to drive the women home, which he did, and they tried unsuccessfully to find another party. Diane's friend then left with another man, and petitioner offered to drive Diane home. Diane testified that at approximately 5:00 a.m. petitioner stopped his car on the shoulder of the Dan Ryan Expressway and ordered her to have sexual intercourse with him. She apparently refused and a wrestling match ensued during which petitioner took her head and forcibly threw it against the car door. Diane testified that petitioner then pulled out a razor which he held at her throat and proceeded to rape her. Afterward petitioner drove to a gas station and left her alone in the car for a few minutes. She remained in the car until he returned and drove her home.
When Diane arrived at her home, she awoke her mother and told her that she had been raped. Her mother called the police, who came and took Diane to a hospital to be examined. Diane's mother testified at trial that Diane was crying, nervous, and very shaken up when she arrived home after the alleged rape. A crime lab technician testified that she had found the presence of spermatozoa in vaginal smears taken from Diane at the hospital. The parties stipulated that the doctor who examined Diane found a bruise on her wrist but no evidence of vaginal trauma. The parties also stipulated to the police report describing Diane as not injured and to a hospital report which stated that "patient [Diane] denies injury."
Petitioner did not testify at trial. Two friends of petitioner, Vanessa Baker and Vernita Kendall, testified for the defense. Vanessa testified that she had introduced Diane to petitioner prior to the time that Diane hired petitioner to repair her car. She also testified that she had seen Diane and the petitioner together at a card game at Diane's mother's house and that she had joined them later that same evening to go to a Halloween party. Vernita corroborated Vanessa's testimony as to the card game and the later party. Both women admitted on cross-examination that Diane and the petitioner were not dating.
As noted above, petitioner was convicted of rape. This appeal concerns nine remarks made by the prosecution during its closing argument regarding petitioner's failure to testify. The first remark was made during the prosecution's initial summation. The prosecutor told the jury that in considering the events that occurred on the night of the alleged rape:
You cannot guess, you cannot conjecture as to what happened out there. The evidence in this case is uncontradicted, unrebutted and undisputed.
(Tr. 217). A second prosecutor made eight references in his rebuttal argument to the unrebutted character of the prosecution testimony. Discussing the evidence presented at trial, the prosecutor noted:
Counsel [for the defense] brought you a list of things that he says discredits the testimony of Diane Williams. Let's go over them again and I agree, the issue is whether you believe Diane.
Remember her uncontradicted and unrebutted testimony?
(Tr. 228). Referring to the petitioner's use of force, the prosecutor said:
And remember her testimony, the uncontradicted, unrebutted testimony of Diane Williams?
(Tr. 229). He continued:
Nowhere in the instructions ... does it say that she has to resist. By force and against her will, and we proved that beyond a reasonable doubt. She told it to you and nobody else told you anything different.
(Tr. 229-230). The trial judge certified that the prosecutor punctuated his remark by pointing at the witness stand. (Certification by Trial Court dated Nov. 21, 1983).
At this point, the defense attorney objected. The court took note of the objection but allowed the prosecutor to proceed with his argument. The prosecutor then again pointed to the witness stand and asked:
Where is the evidence that this was a date? Where is the evidence? Who got up on the witness stand and told you that these two were dating?
(Tr. 230). This statement prompted another objection by the defense. This time the court held a side-bar conference off the record during which the prosecutor was admonished not to comment on petitioner's failure to testify. The trial judge certified that the prosecutor stated he would not make any further remarks. Notwithstanding this statement, the prosecutor proceeded to make four additional references to the uncontradicted, unrebutted, and undisputed nature of Diane's testimony (Tr. 231, 233, 235, 236-237). The defense attorney made no objection to these last four statements.
The petitioner filed a motion for a new trial in which he alleged that the assistant state's attorneys made improper references during closing argument to his failure to testify. The trial court denied the motion on the ground that the jury had been properly instructed on the petitioner's right not to testify, the presumption of innocence, and the prosecution's burden of proof, and furthermore counseled that they should reach their verdict based on the evidence presented and not the arguments of counsel (Tr. 271).
The Illinois Appellate Court affirmed petitioner's rape conviction. Although the major portion of petitioner's brief on direct appeal was devoted to the argument that the prosecutors committed reversible error by making nine separate references during closing argument to the uncontradicted nature of their case, all of which were calculated to draw the jury's attention to petitioner's failure to testify, the Appellate Court's unpublished opinion made no mention of it. Petitioner therefore filed a petition for rehearing with the court which focused primarily on the prosecutors' improper comments. Five months later the Appellate Court issued a supplemental order, also unpublished. The court incorrectly found that there had been five improper comments, when the record clearly revealed nine such comments, and noted only one objection, when again the record clearly revealed two objections. Despite suggesting that "from the nature and number of the comments ... they could have been calculated to direct the attention of the jury to the fact that defendant did not testify," the court held that petitioner had waived any error by failing to object and that the comments did not deprive petitioner of a fair trial (Resp.App.B). The court did not evaluate the two statements to which the defense attorney did object, which were two of the more egregious comments punctuated by the prosecutor's pointing at the witness stand.
Having been unsuccessful in securing any relief in state court, petitioner proceeded to file a petition for a writ of habeas corpus in the district court. The sole argument raised in the petition was that the prosecutors had improperly commented on petitioner's failure to testify, thereby violating his constitutional rights under the Fifth and Fourteenth Amendments. Respondents vigorously contested the petition on the ground that the district court was barred from entertaining petitioner's argument by virtue of the Illinois Appellate Court's determination that the argument had been waived by the petitioner as a result of his failure to object to the improper comments at trial. Although agreeing with petitioner that the Illinois Appellate Court had misread the trial record, the district court nevertheless felt bound by the Illinois court's determination that a procedural default had occurred as a matter of Illinois law. 645 F.Supp. 740, 746 (N.D.Ill.1986). It went on to find, however, that petitioner had satisfied both the "cause" and "prejudice" components of Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977), and that it could therefore reach the argument notwithstanding the procedural default. The court found "cause" for petitioner's failure to object in what it termed the prosecution's "double-cross," that is, the fact that the second prosecutor promised the trial judge during the side-bar conference that he would refrain from any further comment on petitioner's failure to take the stand, but then flagrantly disregarded his agreement with the court and went on to...
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