Fairchild and Cummings, Circuit Judges, and Morgan, District Judge.*fn1
In October, 1964, appellants, Thomas Durso and Michael Gargano, were convicted in the Circuit Court of Cook County, Illinois, of the crime of murder of one Anthony Moschiano. The Illinois Supreme Court affirmed their convictions. People v. Durso, 40 Ill.2d 242, 239 N.E.2d 842 (1968), cert. denied, 393 U.S. 1111, 89 S. Ct. 923, 21 L. Ed. 2d 807 (1969). They then filed a petition for a writ of habeas corpus in the court below, alleging several grounds on which it was contended that their conviction was obtained in violation of the Constitution of the United States.
On May 28, 1969, the court denied the petition and dismissed the cause. On the same date, the trial judge filed a Memorandum of Opinion containing a narrative statement of his findings of fact and conclusions of law. Appellants have appealed from that decision.
The principal contention by appellants is that they were denied due process of law and a fair trial because evidence of other criminal offenses was admitted at their trial.
The petition alleged: "The People were allowed to introduce, over objection, evidence of violations of the Illinois Narcotic Drug Act, not by petitioners, but by others out of the presence of the Petitioners and in so doing, so inflamed the passion and prejudice of the jury as to deny to the petitioners a fair trial for the crime of which they were charged."
In this connection, appellants contend that the trial judge dismissed their petition on this point upon his holding that the issue was res adjudicata because of the denial of certiorari by the United States Supreme Court. Had the court based its decision upon that ground, the ruling would have been erroneous, Brown v. Allen, 344 U.S. 443, 73 S. Ct. 397, 97 L. Ed. 469 (1953); but when the reference to " res adjudicata " is read in context, the appellants' contention is seen to be without merit.
With reference to the contention that evidence of other crimes had been admitted, the judge concluded in his memorandum that no constitutional question was raised by the petition, that the allegation related only to the relevancy of evidence, and that such evidence, when submitted to a jury, was for the jury to weigh and evaluate with all other evidence in arriving at its verdict. In that context, the judge noted that the convictions had been affirmed by the Illinois Supreme Court and certiorari had been denied, concluding with the statement: "The question is now res adjudicata."
We think a proper reading of that paragraph of the district court's memorandum requires the conclusion that the court was construing the issues presented by the petition, and it concluded that the only question properly raised with relation to that evidence was the question of the relevancy of evidence. In that context, then, the ruling by the State's highest court upon the question of relevancy and admissibility of evidence could properly be said to be res adjudicata. We do not read the opinion as stating that the raising of a constitutional question is barred by the fact of denial of certiorari by the United States Supreme Court.
In discussing the admission of the evidence of which complaint is made, the Supreme Court of Illinois said that the evidence of other criminal activities was relevant and had a probative bearing upon the issue of motive and intent which attended the commission of the murder charged.
It has often been stated, as a general rule, that evidence of prior criminal acts of an accused which are not charged in an indictment is inadmissible [ e.g., United States v. Fierson, 419 F.2d 1020 (7th Cir. 1969); United States v. Menk, 406 F.2d 124 (7th Cir. 1968), cert. denied, 395 U.S. 946, 89 S. Ct. 2019, 23 L. Ed. 2d 464 (1969)]; but the true general rule is not nearly so broad. Evidence of other criminal activities is clearly admissible if it is relevant to indicate motive or some other element of the crime charged, unless minor probative value is outweighed by major prejudicial effect. E.g., United States v. Fierson, supra ; United States v. Marine, 413 F.2d 214 (7th Cir. 1969). The question on admissibility is, in the first instance, a matter addressed to the discretion of the trial court. Glasser v. United States, 315 U.S. 60, 62 S. Ct. 457, 86 L. Ed. 680 (1942); United States v. Fierson, supra.
In each case, then, upon direct review, a procedural question is presented whether there was a permissible exercise of discretion in admitting evidence of other criminal activity. We think the constitutional concept in a habeas corpus case must parallel that procedural question. No precise rules can be laid down in either instance. The issue, in each instance, requires a determination whether the probative value of the evidence, for the purpose for which it was admitted, outweighs the prejudice to the accused in the admission of that evidence. Grunewald v. United States, 353 U.S. 391, 420, 77 S. Ct. 963, 1 L. Ed. 2d 931 (1957); United States v. Fierson, supra 419 F.2d at 1022. When it must be said that the probative value of such evidence, though relevant, is greatly outweighed by the prejudice to the accused from its admission, then the use of such evidence by a state may rise to the posture of the denial of fundamental fairness and due process of law.
As we have noted, the Illinois Supreme Court held that the evidence here complained of was properly admitted because it tended to prove motive. With one possible exception, we are convinced that the evidence did have a great probative value to show a single, continuing series of related transactions within a brief time which culminated in the commission of the crime charged.
As appellants suggest, the evidence is properly divided into two categories. The first relates to evidence of criminal activities in which appellants, or one of them, participated. The second relates to criminal activities in the sale or purchase of drugs ...