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November 16, 1983


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


The instant matter concerns a petition for writ of habeas corpus under 28 U.S.C. § 2254 (1976). Before the Court are the parties' cross-motions for summary judgment. For the reasons stated herein, the petitioner's motion is denied and the motion of respondent is granted.

Petitioner Rita Dowd was charged with conspiracy and with murder in the Circuit Court of Cook County, Illinois. After a jury trial, she was found guilty as charged and was sentenced to 30 to 60 years imprisonment. No judgment was entered on the conspiracy count, because it merged into the murder conviction. The Illinois Appellate Court affirmed the conviction, remanding only to modify the mittimus to reflect conviction and sentencing only as to murder. People v. Dowd, 101 Ill. App.3d 830, 57 Ill.Dec. 214, 428 N.E.2d 894 (1st Dist. 1981).

Although the Appellate Court for the First District of Illinois decided that petitioner's claims did not warrant disturbing the trial court's judgment, it is clear that this Court is required to make its own independent examination of the record. Townshed v. Sain, 372 U.S. 293, 316, 83 S.Ct. 745, 758-759, 9 L.Ed.2d 770 (1963); Napue v. Illinois, 360 U.S. 264, 271, 79 S.Ct. 1173, 1178, 3 L.Ed.2d 1217 (1959). At the same time, the state appellate court findings are to be afforded a presumption of correctness, and, as here, in the absence of a specific finding that the contested matters fall within the purview of paragraphs (1) through (7) of 28 U.S.C. § 2254(d) (1976), this Court must defer to the state court findings. Sumner v. Mata, 449 U.S. 539, 547, 101 S.Ct. 764, 769, 66 L.Ed.2d 722 (1981); United States ex rel. Ross v. Franzen, 688 F.2d 1181, 1184 (7th Cir. 1982). After a thorough review of the record and a study of the Illinois Appellate Court's carefully considered 15-page opinion, this Court agrees with the state appellate court's underlying factual determinations. Furthermore, this Court also agrees with the state appellate court's determinations of the issues of law, as discussed below.


A. The State's Knowing Use of Perjured Testimony

The facts underlying petitioner's first claim are fully set out in the state appellate court's opinion. People v. Dowd, 101 Ill. App.3d 830, 57 Ill.Dec. 214, 428 N.E.2d 894, 896-902 (1st Dist. 1981). To summarize, petitioner was romantically involved with one Kenneth Wilhelm, a married man. She and Wilhelm were indicted for murdering Wilhelm's wife. Wilhelm pled guilty to the murder charge, and received the minimum sentence, in return for which he agreed to affirm a statement that he had given to police implicating petitioner in the crime. Later, petitioner was tried, and Wilhelm appeared as a witness against her. His testimony was extensive and highly damaging to petitioner's case. Defense counsel attempted to impeach Wilhelm on cross-examination. He elicited from Wilhelm the admission that Wilhelm had, on an earlier occasion, given a substantially different story to police — a version which exculpated petitioner. Defense counsel then inquired into Wilhelm's own guilty plea and his sentence. Wilhelm testified that as a condition of his sentencing, he was required to affirm the later version of his story to the police — the version which inculpated petitioner. On redirect, the prosecutor attempted to minimize the impact of Wilhelm's admission by asking, "Did the State make you any deals for your plea?" Wilhelm answered, "No." This interchange prompted defense counsel to conduct recross-examination, in order to reassert and clarify Wilhelm's original testimony that Wilhelm's sentence was conditioned on his affirming the story incriminating to petitioner. The prosecution thwarted this effort with a series of objections, interlaced with the comments, "There was no bargain. He [Wilhelm] testified that there was no bargain;" and "Since when is 14 years a bargain . . . ?" See People v. Dowd, 57 Ill.Dec. at 218, 428 N.E.2d at 898.

On appeal, petitioner claimed, and the Illinois Appellate Court agreed, that "the prosecutor's behavior was outrageous and inexcusable. He not only failed to correct testimony which he knew was likely to convey a false impression to the jury, but he deliberately emphasized the testimony by repeating it." 57 Ill.Dec. at 222, 428 N.E.2d at 902.

Petitioner maintains that as a result of the prosecutor's misconduct and the trial judge's sustaining of the prosecutor's objections, the jury was deprived of the opportunity to truly evaluate the credibility of Wilhelm, the State's key witness. Had the jury known that Wilhelm was given lenient treatment by the prosecution, petitioner argues, the credibility of Wilhelm's testimony would have been greatly diminished.

Responding to this same argument when presented earlier on appeal, the Illinois Appellate Court held that even had the perjury been corrected, the jury would have reached the same verdict, and therefore rejected petitioner's argument. 57 Ill.Dec. at 222-223, 428 N.E.2d at 902-03. The state appellate court correctly relied upon the test laid down by the U.S. Supreme Court in Napue v. Illinois, 360 U.S. 264, 271-72, 79 S.Ct. 1173, 1178 (1959), and subsequently reaffirmed in Giglio v. United States, 405 U.S. 150, 154, 92 S.Ct. 763, 766, 31 L.Ed.2d 104 (1972) and United States v. Agurs, 427 U.S. 97, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976): Knowing use by the government of perjured testimony must be set aside if "there is any reasonable likelihood that the false testimony could have affected the judgment of the jury." United States v. Agurs, 427 U.S. at 103, 96 S.Ct. at 2397. The Supreme Court has further stated:

  "The principle that a State may not knowingly use
  false evidence, including false testimony, . . .
  does not cease to apply merely because the false
  testimony goes only to the credibility of the
  witness. The jury's estimate of the truthfulness
  and reliability of a given witness may well be
  determinative of guilt or innocence, and it is
  upon such subtle factors as the possible interest
  of the witness in testifying falsely that a
  defendant's life or liberty may depend."

Napue v. Illinois, 360 U.S. at 269, 79 S.Ct. at 1177.

The Illinois Appellate Court recognized the importance of Wilhelm's credibility in the case. That court, however, found that the evidence, taken as a whole, so substantiated and corroborated Wilhelm's testimony that neither the judgment of the jury nor the outcome of the trial would have been affected by the knowledge that Wilhelm was being untruthful ...

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