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UNITED STATES EX REL. CRIST v. LANE

August 5, 1983

UNITED STATES OF AMERICA EX REL. GILBERT CRIST, PETITIONER,
v.
MICHAEL LANE, RESPONDENT.



The opinion of the court was delivered by: Shadur, District Judge.

MEMORANDUM OPINION AND ORDER

Gilbert Crist ("Crist"), a prisoner at the Pontiac Correctional Center, brings this habeas corpus proceeding under 28 U.S.C. § 2254 against Illinois Department of Corrections Director Michael Lane ("Lane"). Crist's habeas petition asserts the state prosecutor at his trial infringed his Fifth Amendment rights against self-incrimination by commenting on his refusal to testify. Each side has filed a motion for summary judgment. For the reasons stated in this memorandum opinion and order, Lane's motion is granted and Crist's is denied.

Facts

There is no dispute as to any of the relevant facts. But to insure all reasonable inferences are indulged in Crist's favor,*fn1 this Court will adopt the factual account presented by Crist in the "Statement of Facts" section of his state appellate brief (at 7-8):

  At approximately 5:30 p.m. on June 27, 1980
  Anthony Russell was accosted by a man in the
  front hall of a Chicago housing project building
  at 1510 West 13th Street. (R. 96, 115-116)
  Russell testified it was a sunny day and the
  lights were on in the building. (R. 97-98)
  Russell was carrying a bag of clothing belonging
  to his girlfriend, who was then upstairs. (R. 96,
  127)
  Russell had just entered the building when he
  heard a voice say, "stop, come here." (R. 97-98)
  He turned around and saw a man about five feet
  away walking toward him and pointing a gun at
  him. (R. 98-99) Russell immediately threw the bag
  at the man and ran to the rear entrance. (R. 101,
  122-123) Russell testified it would be fair to
  say he only got a quick glimpse of the man and it
  really wasn't enough time for him to get a good
  look. (R. 128-131) At the same time, he testified
  that the gun was a .22 caliber pistol, kind of
  old looking, with paint chipped off the barrel.
  (R. 99-100)
  As Russell ran to the rear entrance of the
  building, he heard four or five shots. (R. 102)
  He ran out the rear entrance, heard another shot,
  and felt a pain in his back. (R. 102) Russell
  kept on running until he was about 100 feet from
  the building where he thought he was out of the
  range of fire. (R. 123-124) At that time, he felt
  very nauseated and dizzy. He had a pain in his
  back and a lump in his stomach. Blood was coming
  out of his mouth. (R. 103, 124)
  Russell turned around to go back to the building
  and saw the offender come out. (R. 104) The man
  shouted "get some business," fired twice in the
  air, and ran off carrying the bag that Russell
  had thrown at him. (R. 105, 125) Russell
  testified he got about a 10 second look at the
  man outside the building. (R. 105) After the
  offender ran off, friends of Russell's named Drew
  and Michael Lee helped Russell back into the
  building where he fell down. (R. 105-106, 124,
  126) Drew and Lee had seen the whole thing. (R.
  126) Sometime later, the police arrived and took
  Russell to the hospital. (R. 106)

Russell later identified Crist as his assailant at a police lineup.

Crist was tried by a jury on seven counts: attempt murder, armed robbery, armed violence and four counts of aggravated battery. At the trial Russell and two police officers testified for the state. As was its right, the defense then rested without presenting any evidence.

During his initial closing argument, prosecutor Wadas commented, "It's uncontradicted and undenied [Russell] saw the defendant three times . . ." (R. 197). Crist's trial counsel Fox then said in his closing argument:

  [A] person charged with a crime does not have to
  testify. Gilbert Crist didn't testify in this
  case. You promised that you would not hold that
  against him. But remember this, ladies and
  gentlemen, Gilbert Crist pied not guilty in this
  case. He didn't have to plead not guilty. He
  could have pied guilty but chose to plead not
  guilty and by that fact alone he's telling you
  that he did not commit these crimes. (R. 204-05)

During Wadas' rebuttal, the following colloquy took place:

  MR. WADAS: You will see how the defense has
  twisted words to their advantage. The defense
  lawyers told you that the defendant has a right
  not to testify and they are correct. But then
  they twisted words when he told you by pleading
  not guilty, in effect, the ...

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