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United States District Court, Northern District of Illinois, E.D

August 5, 1983


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


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.


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,

  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 defendant was
  testifying and saying he did not commit the

MR. FOX: Objection, Judge.

  MR. WADAS: That was Mr. Fox testifying. That was
  not the defendant testifying. That was Mr. Fox

THE COURT: Overruled.

  MR. WADAS: The defendant did not testify. Mr. Fox
  testified. That's a word twisting game. (R. 224)

Crist was convicted on all seven counts and was sentenced to concurrent 20-year terms on the counts of attempt murder, armed robbery and armed violence, and five years on each count of aggravated battery. On direct appeal Crist's counsel failed to mention his habeas claim in his appellate briefs. However, at the beginning of oral argument he did assert the constitutional impropriety of the quoted portions of Wadas' remarks in his rebuttal argument (Stevens Aff. ¶ 8). Counsel also apprised the Illinois Appellate Court those remarks "echoed" Wadas' earlier comment as to Russell's uncontradicted testimony that he saw Crist three times (Stevens Aff. ¶ 9).

In affirming Crist's conviction, the Appellate Court found no reversible error in the "several instances of allegedly improper comments by the prosecutor." People v. Crist, 108 Ill. App.3d 1208, 68 Ill.Dec. 583, 446 N.E.2d 317 (1st Dist. 1982). Though the Court did not specifically identify those "allegedly improper comments," its analysis clearly indicates Wadas' comments attacked by Crist's habeas petition were among those considered:

    1. To support its ruling, the court invoked the
  well-settled legal principle "[a]ny possibility
  of prejudice was corrected by prophylactic
  instructions by the trial court. . . ." It cited
  inter alia I.P.I. Criminal No. 204.

    2. That jury instruction provides: "The fact
  that the defendant did not testify should not be
  considered by you in any way in arriving at your

On November 30, 1982 the Illinois Supreme Court denied Crist's Petition for Leave To Appeal. Crist then brought this habeas proceeding.

Summary Judgment

To win on the cross summary judgment motions, Crist must prevail on three issues:

    1. whether Crist waived his habeas claim by
  failing (adequately) to raise it on direct

    2. whether Wadas' remarks in closing argument
  improperly referred to Crist's failure to
  testify, thereby infringing Crist's Fifth
  Amendment rights against self-incrimination; and

    3. whether any intrusion into Crist's Fifth
  Amendment rights was harmless beyond a reasonable

Because the second issue must be resolved in Lane's favor as a matter of law, this Court will not address the other two issues.

Neither of Wadas' comments at issue implicated Crist's Fifth Amendment rights. As for his describing Russell's testimony as "uncontradicted and undenied" — an indirect or arguably inferential, rather than a direct, reference to Crist's failure to testify*fn2 — our Court of Appeals has stated the operative test several times in recent years. In United States v. Buege, 578 F.2d 187, 188-89 (7th Cir.), cert. denied, 439 U.S. 871, 99 S.Ct. 203, 58 L.Ed.2d 183 (1978) the Court said:

  Indirect comments such as the prosecutor's
  references in this case to "uncontradicted
  testimony" constitute error when the statements
  are "manifestly intended to be or [are] of such a
  character that the jury [will] naturally and
  necessarily take [them] to be comment on the
  defendant's failure to testify." United States v.
  Lyon, 397 F.2d 505, 509 (7th Cir.), cert. denied,
  393 U.S. 846, 89 S.Ct. 131, 21 L.Ed.2d 117 (1968).
  This court has previously held that when a
  prosecutor refers to testimony as uncontradicted
  where the defendant has elected not to testify and
  when he is the only person able to dispute the
  testimony, such reference necessarily focuses the
  jury's attention on the defendant's failure to
  testify and constitutes error. United States v.
  Handman, 447 F.2d 853, 855 (7th Cir. 1971). See
  United States v. Poole, 379 F.2d 645, 649 (7th Cir.

  We find, therefore, that the prosecutor committed
  error by repeatedly depicting testimony as
  uncontradicted where it was highly unlikely that
  at least a portion of the testimony could have
  been contradicted by anyone other than the

And most recently in United States v. Hastings, 660 F.2d 301, 303 (7th Cir. 1981), rev'd on other grounds sub nom. United States v. Hasting, ___ U.S. ___, ___ - ___, 103 S.Ct. 1974, 1976-78, 76 L.Ed.2d 96 (1983), the Court cited and quoted the same Buege language for the same proposition. Cf. Justice Stevens' concurring opinion in Hasting, ___ U.S. at ___, 103 S.Ct. at 1983-84, emphasizing that the evidence characterized as "uncontradicted" by the prosecutor "could have been addressed by defense witnesses and defense counsel even without testimony by the defendants themselves" (emphasis added).

In this case Crist concedes at least two other eyewitnesses were in a position to contradict Russell's account of the shooting: Drew and Michael Lee. Under the Buege-Hastings standard, Wadas' indirect comment did not "necessarily focus[] the jury's attention on [Crist's] failure to testify. . . ." Consequently Crist's right against self-incrimination was not impaired by Wadas' assertion during his initial closing argument.

As for Wadas' rebuttal remarks, the "invited response" doctrine (also known as the "invited error" rule) defeats Crist's Fifth Amendment challenge. Under that concept, "where defense counsel makes statements and closing argument that invite the government to respond, the prosecutor may, on rebuttal, enter into areas that would otherwise constitute improper argument."*fn3 As will be recalled Wadas mentioned Crist's failure to testify in an effort to rebut Fox's argument that a testimonial assertion of innocence could be inferred from Crist's plea of not guilty. In that context Wadas' reference to Crist's silence was certainly "invited" by defense counsel.*fn4 Indeed even Wadas' final argument (though this Court does not mean to give it sanction) itself referred in terms both to the fact "the defendant has a right not to testify" and to defense counsel's correctness in so stating.


There is no genuine issue of fact, and Lane is entitled to judgment as a matter of law. Lane's motion for summary judgment is therefore granted, and Crist's motion is denied.

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