Appeal from the United States District Court for the Central District of Illinois, Danville Division. No. 79-2238 -- Harold A. Baker, Judge.
Cummings, Chief Judge,*fn* Luther M. Swygert, Circuit Judge,*fn** and Walter E. Hoffman, Senior District Judge.**fn** Swygert, Senior Circuit Judge, concurring in part and dissenting in part.
HOFFMAN, Senior District Judge.
Petitioner appeals the denial by the district court of a petition for writ of habeas corpus on his conviction in an Illinois state court for solicitation to commit murder. Respondent, State of Illinois, cross-appeals the grant of the writ on petitioner's conviction for conspiracy to commit murder. We affirm both actions on summary judgment by the lower court.
Petitioner, an Illinois attorney, was indicted on ten counts of conspiracy and solicitation, based on having planned with a former client from February to November, 1974, to have petitioner's wife murdered. Petitioner did not testify at trial; the most important evidence against him was the testimony of Weathington, the former client, and tapes of conversations between Weathington and petitioner, made after Weathington went to the police on November 18, 1974. Other prosecution witnesses included agents of the Illinois Bureau of Investigation (I.B.I.) and Patty Cozad, who testified that she accompanied Weathington on a trip to Chicago, where Weathington met petitioner and bought a knife.
After a general guilty verdict was returned on the four conspiracy and six solicitation counts, the state trial court granted petitioner's motion to dismiss the two conspiracy counts -- three and ten -- that were based on overt acts on December 11, after the sole co-conspirator had gone to the police, at which point the conspiracy ended by law. The trial court, however, rejected petitioner's argument that the jury could have based its general verdict on the two invalid charges rather than the two alleging overt acts before November 18. The conviction was upheld by the Illinois Appellate Court. People v. Cramer, 64 Ill. App. 3d 688, 381 N.E.2d 827, 21 Ill. Dec. 500 (1978). Leave to appeal was denied by the Illinois Supreme Court on January 25, 1979 (No. 51432), and the Supreme Court of the United States denied certiorari, 444 U.S. 828, 100 S. Ct. 53, 62 L. Ed. 2d 35 (1979).
Petitioner's collateral attack was more successful: the district court granted the writ as to the conspiracy conviction because petitioner's right to due process was violated by the possibility that the jury based its verdict on overt acts in the invalid conspiracy counts. The court initially determined that the writ should not issue because petitioner also was sentenced to a concurrent one-to-three year term for solicitation. Cramer v. Scott, No. 79-2238 (C.D. Ill. Aug. 27, 1980). The court, on reconsideration, agreed to issue the writ despite the existence of a valid concurrent sentence. Id. (C.D. Ill. Oct. 24, 1980). The State of Illinois cross-appeals the issuance of the writ as to the conspiracy conviction.
In addition to respondent's cross-appeal, this court must consider four issues raised by petitioner: (1) Was the solicitation indictment unconstitutionally vague because it merely tracked the language of the Illinois statute of "encouraging" and "requesting," rather than setting forth the very words used to solicit Weathington? (2) Did the state conceal certain evidence that would have allowed petitioner to impeach Patty Cozad, whose testimony petitioner claims was vital to the defense? (3) Was evidence of other crimes and wrongful acts by petitioner erroneously admitted and, if so, did it so prejudice petitioner as to make his trial fundamentally unfair? (4) Did the actions of the trial judge, in offering to replay and replaying tapes containing damaging evidence against petitioner many hours after the jury had twice requested the evidence, impermissibly intrude on the jury's function and coerce a guilty verdict?
VALIDITY OF CONSPIRACY CONVICTION
A. VERDICT COULD HAVE BEEN BASED ON INVALID COUNTS
Petitioner made two arguments to the Illinois Appellate Court, one statutory and one constitutional, as to why his conspiracy conviction should not stand, which were, respectively, that the trial court gave erroneous instruction under Illinois law and that the jury might have based its guilty verdict on the overt acts in the invalid counts. The Illinois court agreed that one conspiracy instruction was an erroneous statement of Illinois law,*fn1 though harmless error in light of the overwhelming evidence of guilt, but failed to address the constitutional issue. The federal court, however, upon consideration of the constitutional argument, determined that petitioner's due process rights were violated because the jury's general verdict could have been based on the invalid counts later dismissed. We agree that, because we are unable to tell whether the jury based its verdict on the valid or invalid counts, the general conspiracy conviction was unconstitutional. Where a verdict is supportable on one ground but not another, and it is impossible to tell which grounds the jury selected, the conviction is unconstitutional. Stromberg v. California, 283 U.S. 359, 368, 75 L. Ed. 1117, 51 S. Ct. 532 (1931). Respondent distinguishes the invalidation of the conviction in Stromberg as being grounded on the fact that one of the three possible bases for conviction under the statute was unconstitutional, whereas here two possible bases for conviction were merely invalid. It is true that in Williams v. North Carolina, 317 U.S. 287, 291-92, 87 L. Ed. 279, 63 S. Ct. 207 (1942), just as in Stromberg, one of the two theories under which the case was submitted to the jury was unconstitutional and therefore the judgment could not be sustained. However, in Yates v. United States, 354 U.S. 298, 1 L. Ed. 2d 1356, 77 S. Ct. 1064 (1957), the ground on which the verdict could have rested, for which it was set aside, was legally invalid rather than unconstitutional. A general guilty verdict was returned based on violation of a statute that forbad advocating the violent overthrow of the government or organizing the Communist Party. The conviction was set aside, not because one of the prohibitions was unconstitutional, but because one of the three-year statute of limitations had run on the organizing charge, since the Party was first organized in this country in 1945. Given the lack of clarity in the jury instructions, the Court wrote, "we have no way of knowing whether the overt act found by the jury was one it believed to be in furtherance of the 'advocacy' rather than the 'organizing' objective of the alleged conspiracy." Similarly, this conspiracy conviction must be set aside. Id. at 311-12.
B. INAPPLICABILITY OF CONCURRENT SENTENCE DOCTRINE
We likewise uphold Judge Baker's decision to issue the writ as to the conspiracy conviction, despite the existence of a valid concurrent sentence on the solicitation conviction, for the reasons he set out in his supplemental opinion and order: the principles behind the availability of habeas for consecutive sentences, one of which is scheduled to be served in the future, as set out in Peyton v. Rowe, 391 U.S. 54, 20 L. Ed. 2d 426, 88 S. Ct. 1549 (1968); the disapproval of the so-called "concurrent sentence" doctrine in Benton v. Maryland, 395 U.S. 784, 787-93, 23 L. Ed. 2d 707, 89 S. Ct. 2056 (1969); and the availability of habeas corpus even after a sentence is served to avoid future consequences from an invalid conviction, as explained in United States v. Fiswick, 329 U.S. 211, 222, 91 L. Ed. 196, 67 S. Ct. 224 (1946). The circuits have gone both ways in examining the continuing validity of the "concurrent sentence" doctrine. Compare Sciberras v. United States, 404 F.2d 247, 249-50 (10th Cir. 1968) (Habeas remedy is available to attack a concurrent sentence), with United States v. Truong Dinh Hung, 629 F.2d 908 (4th Cir. 1980); Van Geldern v. Field, 498 F.2d 400, 403-404 (9th Cir. 1974); United States ex rel. Weems v. Follette, 414 F.2d 417, 418-19 (2d Cir. 1969), cert. denied, 397 U.S. 950, 25 L. Ed. 2d 131, 90 S. Ct. 973 (1970) (The continuing validity of the "concurrent sentence" doctrine was upheld).
The Supreme Court has explained that the concurrent sentence doctrine "cannot be taken to state a jurisdictional rule", Benton, supra, at 790, based on lack of a justiciable case or controversy, although it "may have some continuing validity as a rule of judicial convenience," id. at 791, holding merely that "there is no jurisdictional bar to consideration of challenges to multiple convictions, even though concurrent sentences were imposed," id. The Court implied that a habeas court may consider constitutional attack on one conviction, even though a petitioner is serving a concurrent sentence on a valid second conviction, if there is a possibility of adverse collateral consequences from the existence of the invalid conviction, id. at 790-91, but, because the state court did not apply the doctrine, the Supreme Court found it "unnecessary to resolve [the] dispute" as to whether "the concurrent sentence doctrine survives as a rule of judicial convenience". Id. at 792.
Essentially, the state of the law now is that it is in the discretion of the habeas court whether it will examine the validity of one conviction, despite a valid second conviction for which petitioner is serving a concurrent sentence, or refuse to pass on the constitutionality of the conviction, based on the court's assessment of the collateral effect of the conviction. "The proper exercise of this discretion depends upon the degree of prejudice that may be attributed to the challenged conviction." Van Geldern, supra, at 403. The Fourth Circuit sees the application of the concurrent sentence rule, after Benton, as "restricted to situations where there is no substantial possibility that the unreviewed conviction will adversely affect the defendant's right to parole or expose him to a substantial risk of adverse collateral consequences." Truong Dinh Hung, supra, at 931.*fn2
Judge Baker did not specifically set out in his supplemental opinion whether he reconsidered and ordered the writ to issue because of the danger of collateral consequences to petitioner, but we read his reliance on "the rationale of Benton v. Maryland. . . disapproving the 'concurrent sentence doctrine' . . ." as indicating that he followed the Benton principle of looking to the possibility of consequences flowing from a second conviction. We therefore uphold his discretionary grant of the writ to avoid the collateral effects of a second conviction.
Petitioner's fourfold attack on his solicitations conviction, to be successful, must go beyond merely proving that the alleged trial errors violated Illinois' own law and procedural rules and show that the errors rose to the constitutional level, either by making his trial so fundamentally unfair as to deny him due process or by abridging a specific constitutional guarantee, such as the right to notice of the charges against him, which is violated by a constitutionally vague indictment. United States ex rel. Bibbs v. Twomey, 506 F.2d 1220, 1222-23 (7th Cir. 1974), appeal after remand, 538 F.2d 151 (1976) (en banc), cert. denied, 429 U.S. 1102, 97 S. Ct. 1126, 51 L. Ed. 2d 551 (1977).
Petitioner's first attack on his conviction is aimed at the six solicitation counts which he claims were unconstitutionally vague for failure to include the very words or the substance of the words used to solicit Weathington to murder petitioner's wife. The indictment tracked the language of the Illinois statute: petitioner was accused of encouraging and requesting Weathington to murder his wife. Petitioner contends that because Illinois demands that a perjury indictment set out the operative words, People v. Aud, 52 Ill. 2d 368, 288 N.E. 2d 453 (1972), the same should hold true for solicitation, the essence of which he claims is also the words spoken. But Illinois itself has twice upheld solicitation indictments stated in the language of the statute. People v. Powell, 72 Ill.2d 50, 377 N.E.2d 803, 18 Ill. Dec. 318 (1978), cert. denied, 440 U.S. 907, 99 S. Ct. 1214, 59 L. Ed. 2d 455 (1979); People v. George, 67 Ill. App. 3d 102, 384 N.E. 2d 377, 23 Ill. Dec. 583 (1978). Even if the Illinois court was wrong in making this distinction under Illinois law, it is not our role on habeas corpus to set aside a state court's interpretation of its own law. United States ex rel. Burnett v. People of Illinois, 619 F.2d 668, 671 (7th Cir.), cert. denied, 449 U.S. 880, 66 L. Ed. 2d 104, 101 S. Ct. 229 (1980). Petitioner attempts to distinguish those two cases by the fact that the solicitation here was based on conversations that took place over a nine-month period, but that is all the more reason for not demanding that the State set out the very words used to solicit. The offense of perjury is readily distinguishable from solicitation; the former is directed to a fixed statement, the latter at times to an entire conversation. With perjury, the only issue is whether or not it is true; solicitation, on the other hand, may be based on lengthy detailed conversations, some of which may be direct but many portions of which may consist of subtle, indirect inducements, the words of which are meaningless when taken out of context.
Illinois' requirements for an indictment are that it (1) apprise the defendant with reasonable certainty of the nature of the offense in order to allow him to prepare a defense; (2) include the elements of the offense; and (3) sufficiently identify the particular offense committed so as to ...