The Illinois Appellate Court affirmed the trial court's
decision.*fn4 The Illinois Supreme Court denied Gayden's
petition for leave to appeal. Gayden then filed the instant
habeas corpus petition with this Court.
I. Scope of Review
A federal court's power of review in a habeas corpus
proceeding is limited. The federal court must base its
decision on the same record considered by the state appellate
court. Underlying factual determinations of the state
appellate court are presumed to be correct unless it is
established that the determination falls within one of the
exceptions of 28 U.S.C. § 2254(d). If none of the exceptions of
28 U.S.C. § 2254(d) is applicable, then a federal court must
defer to the state court findings and the burden is on the
petitioner to show by convincing evidence that the state
court's factual determination was erroneous. 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
Though perhaps unclear at times, there is a distinction
between factual determinations, which warrant the presumption
of correctness, and mixed determinations of fact and law,
which do not. The phrase "issues of fact" refers "to what are
termed basic, primary or historic facts; facts `in the sense
of a recital of external events and the credibility of their
narrators. . . .'" Townsend v. Sain, 372 U.S. 293, 309, 83
S.Ct. 745, 755, 9 L.Ed.2d 770 (1963), quoting Brown v. Allen,
344 U.S. 443, 506, 73 S.Ct. 397, 445, 97 L.Ed. 469 (1953)
(opinion of Frankfurter, J.); United States ex rel. Ross v.
Franzen, 688 F.2d 1181, 1184 (7th Cir. 1982). However, if the
issue is one requiring an application of legal principles to
the historical facts of the case, the presumption does not
apply and the state court holding is open to review de novo in
a federal habeas corpus proceeding. Cuyler v. Sullivan,
446 U.S. 335, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980); Cain v. Smith,
686 F.2d 374, 379-80 (7th Cir. 1982).
After a study of the Illinois Appellate Court's opinion,
this Court agrees with the state appellate courts underlying
factual determinations. Since none of the statutory exceptions
is applicable and Gayden has not rebutted the factual
determinations with sufficient convincing evidence, this Court
will apply the presumption of correctness to the state court
factual findings and apply the law accordingly. As discussed
below, this Court also agrees with the state appellate court's
determinations of the issues of law.
II. Petitioner's Claims
A. Right to Confront Witness
Gayden contends that the introduction at trial of Jones'
preliminary hearing testimony violates his Sixth Amendment
right to confront the witness. Gayden contends that he was
unable to cross-examine the witness since the witness died
prior to trial.
The Sixth Amendment's Confrontation Clause requires that "in
all criminal prosecutions, the accused shall enjoy the
right . . . to be confronted with the witnesses against him."
Reflected in the Confrontation Clause is a preference for
face-to-face confrontation at trial, thus enabling the trier
of fact to directly observe the demeanor of the witness in
evaluating his credibility. Barber v. Page, 390 U.S. 719, 725,
88 S.Ct. 1318, 1322, 20 L.Ed.2d 255 (1968); Mattes v. Gagnon,
700 F.2d 1096, 1101 (7th Cir. 1983). In addition, the
Confrontation Clause assures that the accused has the
opportunity to cross-examine the witness against him. Id.
Despite these purposes, however, on occasion public policy
requires that confrontation at trial be dispensed with. Ohio v.
448 U.S. 56, 64, 100 S.Ct. 2531, 2538, 65 L.Ed.2d 597 (1980). In such
instances, including as in the case at bar, where necessary
for effective law enforcement, Mattes, supra, the Court must
ensure that a satisfactory basis exists for evaluating the
truth of a prior out-of-court statement, so that the purpose
behind the Confrontation Clause relating to the determination
of credibility and truth may be served.
A two-part test is utilized to determine whether a need for
the exception exists and whether the factfinder can test the
accuracy of the statement. Valenzuela v. Griffin, 654 F.2d 707
(10th Cir. 1981). The first part of the test involves
unavailability of the witness. The prosecution must demonstrate
the unavailability of the declarant whose statements are to be
used against the defendant. Ohio v. Roberts, 448 U.S. 56, 100
S.Ct. 2531, 65 L.Ed.2d 597 (1979). The witness' unavailability
creates a need for introduction of the statements.
In the case at bar, there is no question about the
unavailability of the witness as Jones had died prior to
trial. Thus, the first part of the test is satisfied.
The second part of the test involves indicia of reliability.
The prior statement must bear sufficient indicia of
reliability because the factfinder's opportunity to evaluate
the credibility of the witness is dispensed with. Ohio v.
Roberts, 448 U.S. at 65, 100 S.Ct. at 2538; Valenzuela v.
Griffin, 654 F.2d at 709. Courts have found indicia of
reliability in situations where the prior statement was made
before a judicial tribunal, the defendant was represented by
counsel, and the defendant had an opportunity to cross-examine
the witness about his statement. See, Ohio v. Roberts,
448 U.S. 56, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1979); California v. Green,
399 U.S. 149, 90 S.Ct. 1930, 26 L.Ed.2d 489 (1970). In both
Roberts and Green, preliminary hearing testimony was found to
bear sufficient indicia of reliability.
In the case at bar, Jones' statements were made at a
preliminary hearing regarding charges against Gayden. Jones
was under oath and Gayden was represented by counsel. The
record and findings of the state appellate court indicate that
Jones' testimony included statements about the lighting at the
time of the robbery, the struggle which occurred and his
opportunity to view Gayden. Gayden's counsel cross-examined
Jones concerning his identification of Gayden and questioned
Jones about whether he saw Gayden before and after the
robbery. Although cross-examination regarding whether Jones
had seen Gayden after the robbery was precluded, the lack of
questioning does not destroy the reliability of Jones'
testimony. Jones' preliminary hearing testimony was
corroborated by the trial testimony of Standifer, Jones'
employee. So long as it bears sufficient indicia of
reliability, the cross-examination at a preliminary hearing
need not be identical to that anticipated at trial in order
for the preliminary hearing testimony to be introduced at
trial. United States ex rel. Haywood v. Wolff, 658 F.2d 455
(7th Cir. 1981). Clearly, the transcript of Jones' preliminary
hearing testimony bears such indicia.
Having satisfied the two-part test, unavailability and
indicia of reliability, Jones' preliminary hearing testimony
justifies application of an exception to the Confrontation
Clause. This Court concludes that Gayden's Sixth Amendment
right to confrontation was not violated by introduction of
Jones' preliminary hearing transcript.
B. Guilt Beyond a Reasonable Doubt
Gayden contends that the State did not prove his identity as
the assailant of Sammie Jones, the victim, beyond a reasonable
doubt because Jones' preliminary hearing transcript was the
sole basis for Gayden's conviction. Gayden's contention is
based on claims that the preliminary hearing and trial is
devoid of positive identification of Gayden, the trial judge
did not assess Jones' credibility as witness and no
corroboration of Jones' identification occurred at trial.
Gayden's contention is without merit. As discussed in
Section A, Jones' preliminary hearing testimony bore
sufficient indicia of reliability and could be introduced at
trial against Gayden since Jones was unavailable for trial.
Contrary to Gayden's claim, Jones identified Gayden as his
assailant in the preliminary hearing testimony. As introduced,
the preliminary hearing testimony was sufficient to establish
Gayden's guilt. The testimony of a single witness is
sufficient to establish guilt. United States v. Danzey,
594 F.2d 905, 916 (2d Cir. 1979); People v. Yarbrough, 67 Ill.2d 222,
10 Ill.Dec. 213, 367 N.E.2d 666 (1977). The state
appellate court's finding of fact demonstrates the reliability
of the testimony. This Court finds that there is an adequate
basis for concluding that the evidence was sufficient to
establish Gayden's guilt. This Court agrees with the state
appellate court's determination that the state trial court
could rely on Jones' preliminary hearing testimony to establish
Jones' preliminary hearing testimony was corroborated by
testimony at trial of Jones' employee, Standifer. Standifer
was present at the robbery and testified regarding details of
the robbery. This testimony enhanced the credibility of Jones'
preliminary hearing testimony, justifying the trial court's
reliance on the testimony of Jones to establish Gayden's
The claim that the trial judge did not assess the witness'
credibility does not prevent a finding of guilt. This lack of
opportunity to observe the witness has been disposed of in
discussion regarding the reliability of the prior testimony.
Since the exception to the Confrontation Clause exists, this
claim is without merit. See Section A above.
In a habeas corpus proceeding challenging a state court
conviction, the applicant is entitled to relief if it is found
that upon the record evidence adduced at trial, no rational
trier of fact could have found proof of guilt beyond a
reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 324, 99
S.Ct. 2781, 2791, 61 L.Ed.2d 560 (1978). As stated above,
Jones' preliminary hearing transcript was sufficient to
establish Gayden's guilt. In addition, Jones' testimony was
corroborated at trial. This evidence would convince a rational
trier of fact of Gayden's guilt beyond a reasonable doubt.
Thus, this Court finds that the determination by the state
trial and appellate courts of guilt beyond a reasonable doubt
must be upheld.
For the reasons stated herein, the petition for writ of
habeas corpus is denied and respondent's motion for summary
judgment is granted.
IT IS SO ORDERED.