Wilson v. O'Leary

• Decision Date: 07 February 1990
• Docket Number: No. 89-2085,89-2085
• Citation: 895 F.2d 378
• Parties: Harold WILSON, Petitioner-Appellee, v. Michael O'LEARY, Warden, Stateville Correctional Center, Respondent-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 378

895 F.2d 378

Harold WILSON, Petitioner-Appellee, v. Michael O'LEARY, Warden, Stateville Correctional Center Respondent-Appellant.

No. 89-2085.

United States Court of Appeals Seventh Circuit.

Argued Dec. 15, 1989.

Decided Feb. 7, 1990.

Frederick F. Cohn (argued), Chicago, Ill., for petitioner-appellee.

Kenneth A. Fedinets, Asst. Atty. Gen., Office of the Atty. Gen., Chicago, Ill., for respondent-appellant.

Richard S. London, Asst. Atty. Gen. (argued), Office of the Atty. Gen., Chicago, Ill., for respondent-appellee.

Before CUDAHY, EASTERBROOK and KANNE, Circuit Judges.

EASTERBROOK, Circuit Judge.

Early in the morning of September 20, 1980, two men accosted Deborah Carter as she entered her mother's apartment building in Chicago. They put a knife to her neck, forced her inside, ripped off her wedding rings and gold chains, tied and gagged her with her own clothing, raped her repeatedly over the course of two hours, and after pummeling her with their fists delivered one brutal kick before fleeing. Six days later Deborah Carter, her husband O'Neal Carter, Robert Rockymore (godfather to their children), and Allen Hudson (a friend), visited the Toast of the Town Tavern while searching for the thugs. Deborah Carter espied Harold Wilson and told Hudson that Wilson was one of the assailants. Hudson, an off-duty deputy sheriff, pulled his gun, flashed his badge, and told Wilson to step outside. Wilson accompanied Hudson, Rockymore, and O'Neal Carter to a vacant lot next to the tavern.

While Hudson stood by, O'Neal Carter angrily questioned Wilson. Friends of the Carters arrived from the tavern; the crowd became ugly. Hudson searched Wilson and found a gun in his boot. He turned it over to Rockymore or O'Neal Carter and left to call the police. Although Wilson denied raping Deborah Carter, by the time the police arrived he had named Anthony Dixon as the "other guy". Naming one's accomplice while denying a role does not sit well with juries; Wilson was convicted of rape, deviate sexual assault, and armed robbery. He got 40 years. The appellate court affirmed, People v. Wilson, 124 Ill.App.3d 831, 80 Ill.Dec. 175, 464 N.E.2d 1158 (1st Dist.1984), and after some preliminary proceedings, 682 F.Supp. 944 (N.D.Ill.1988), the district court issued a writ of habeas corpus, 709 F.Supp. 837 (1989), concluding that the state made forbidden use of the statement in the vacant lot.

All agree that Hudson prevented Wilson from leaving, that neither Hudson nor anyone else delivered Miranda warnings, and that Hudson gave a gun to either O'Neal Carter or Rockymore. Here agreement ends. At a pretrial hearing, witnesses for the state testified that although the encounter was heated, no threats were made and or force applied. Wilson and his girlfriend testified that he was struck and threatened, and that when he denied raping Deborah Carter or knowing a "Greg", he was told that he had better start naming his friends. Then, he says, he rattled off the names of several friends, including Tony Dixon. Wilson's girlfriend ran to fetch his sister, who testified that when she arrived Wilson was lying on the ground surrounded by people hurling questions. Officer Dubois, who took Wilson into custody of the police, testified that when he arrived Wilson was struggling with two men.

At the stationhouse, Dubois gave Wilson Miranda warnings and the two had a brief interchange, no more than five minutes. Wilson remained silent in the face of the accusation that he had raped Deborah Carter. Once again, however, Wilson gave Dixon's name. Dubois said that "I was interested in knowing the party that was involved with him", to which Wilson "said Tony was involved". Dubois asked for the full name; Wilson replied "Anthony Dixon". Later that day Wilson spoke with Assistant State's Attorney Gainer. After a fresh set of Miranda warnings, Wilson told Gainer that in the vacant lot he had identified "Tony" as his partner.

Prudently, the prosecutor did not use at trial the statements Wilson made outside the tavern. Officer Dubois testified to Wilson's identification of Anthony Dixon as his confederate. Gainer did not testify, but the jury was given a stipulation that if called Gainer would have testified "that [Wilson] admitted telling the men who held him ... at the lounge that the 'other guy' was Tony Dixon and that he referred to Dixon as his partner." 124 Ill.App.3d at 836, 80 Ill.Dec. at 178, 464 N.E.2d at 1161.

The trial judge declined to suppress the statements to Dubois and Gainer, concluding that both were recaps of statements in the vacant lot that were voluntary and, because given in response to private rather than official questioning, not barred by Miranda. The conclusion that O'Neal Carter rather than Hudson did the questioning is one of historical fact, binding under 28 U.S.C. Sec. 2254(d). The judge did not, however, make explicit findings on other disputed matters, such as whether anyone hit or threatened Wilson. As the appellate court described the findings, the trial judge concluded

that the statements made by [Wilson] were neither involuntarily made nor the product of a police-initiated or abetted interrogation and that the complainant's husband was not acting as an agent of the State in questioning [Wilson].

124 Ill.App.3d at 840, 80 Ill.Dec. at 181, 464 N.E.2d at 1164. On this view, which the appellate court accepted, even the statements made in the vacant lot could have been used at trial. It followed, and the appellate court held, that the statements to Dubois and Gainer were admissible.

Although the Constitution applies only to governmental action, making Miranda irrelevant to private questioning, the district court held (and we agree) that the encounter in the vacant lot was not private. Hudson, a state actor, arrested Wilson in the name of Illinois, using his gun and badge, and held Wilson against his will. Police may not avoid Miranda by delegating the questioning to the victims of the crime or their relatives. Truly private questioning remains private even though it takes place in a jail and the police know that the relative may persuade the suspect to say something. United States ex rel. Church v. DeRobertis, 771 F.2d 1015 (7th Cir.1985). But the questioning here was not private in the way a conversation between siblings in a cell (the subject of Church ) is private. Church was under no greater constraint than any other occupant of the jailhouse and could chat with his relatives or shoo them away without penalty. Wilson had been dragged by the scruff of his neck into a vacant lot and was being detained by Hudson for O'Neal Carter's benefit. Hudson supervised this interrogation and must have indicated that he expected Wilson to sing. According to Rhode Island v. Innis, 446 U.S. 291, 302, 100 S.Ct. 1682, 1690, 64 L.Ed.2d 297 (1980), interrogation occurs when the police take actions that they "should know are reasonably likely to elicit an incriminating response from the suspect." That describes Hudson's strategy. Questioning of this kind poses exactly the risks with which Miranda is concerned. The statements made in the vacant lot were inadmissible under Miranda; whether they were also inadmissible because involuntary is a question to which we return.

After Oregon v. Elstad, 470 U.S. 298, 105 S.Ct. 1285, 84 L.Ed.2d 222 (1985), obtaining a statement in violation of Miranda does not prevent the police from using in court later statements given after the administration of the essential warnings, provided both statements are voluntary. The district court identified the voluntariness of the statements to Dubois and Gainer as the dispositive issue and set the matter for an evidentiary hearing. 682 F.Supp. at 950. At this juncture the parties consented to the transfer of further proceedings to a magistrate under 28 U.S.C. Sec. 636(c)(1) and also agreed that the appeal would lie to the district judge under Sec. 636(c)(4). Magistrate Bucklo concluded that the statements to Dubois were voluntary but that the statements to Gainer were not, because while Dubois conducted a fresh interrogation, Gainer simply asked Wilson what he had told the mob. Notwithstanding that conclusion, the magistrate denied the petition for a writ of habeas corpus, holding the stipulation about the statement to Gainer harmless given the statement to Dubois. The district judge reversed, concluding on the basis of decisions such as Payne v. Arkansas, 356 U.S. 560, 78 S.Ct. 844, 2 L.Ed.2d 975 (1958), and United States v. Hasting, 461 U.S. 499, 508 n. 6, 103 S.Ct. 1974, 1980 n. 6, 76 L.Ed.2d 96 (1983), that the use of an involuntary confession can never be harmless error. 709 F.Supp. at 842-43. We granted the state's petition for discretionary review under 28 U.S.C. Sec. 636(c)(5).

First in line stands a jurisdictional question. A person seeking a writ of habeas corpus must obtain a certificate of probable cause in order to appeal from a district court to the court of appeals. 28 U.S.C. Sec. 2253. The certificate is a condition of the court's jurisdiction. Joyner v. Parkinson, 227 F.2d 505, 508 (7th Cir.1955). See also McCarthy v. Harper, 449 U.S. 1309, 101 S.Ct. 827, 66 L.Ed.2d 782 (1981) (Rehnquist, Circuit Justice); Buthy v. Commissioner of Office of Mental Health, 818 F.2d 1046, 1052 (2d Cir.1987). Section 636(c)(4) provides that appeals from magistrates to district judges shall proceed "in the same manner as on an appeal from a judgment of the district court to a court of appeals." Wilson appealed from Magistrate Bucklo to the district judge without seeking a certificate of probable cause. If "the same manner" refers only to procedural matters such as briefing schedules, then Wilson did not need one; if Sec. 636(c)(4) requires appeals from magistrates to track appeals from district courts in all respects, then Wilson needed a CPC.

Consents under Sec. 636(c)(4) are sufficiently rare that no court has decided whether the petitioner needs a CPC...