While the State's case was considerably stronger on whether
Shaw was at the scene of the crime, it was not without some
uncertainties on either identification issue. In fact, the
prosecution's own witnesses contradicted themselves on the
question of identification. The photographic identifications
by Lillian and Grandville Farmer, while supporting the
conclusion that petitioner was one of the two men in the store
the night of the shooting, were not unequivocal. Both
identified photographs of other men in addition to those of
petitioner and White. Moreover, Mrs. Farmer recalled that she
picked out the photos of White and Craig, the two men who were
arrested in petitioner's home, on the day of the shooting,
while she did not identify the photograph of petitioner until
the hearing on the motion to suppress identification which was
held several months later.
Evidence even more damaging to the state's case, in light of
the fact that the state had to prove that petitioner was the
shooter before the jury could find him guilty of murder, was
Lillian and Grandville Farmer's testimony that White was the
shooter. Lillian Farmer testified in court that petitioner had
the gun and that the man with the gun was wearing a gray
jacket, but had testified at a preliminary hearing that White
was the one who was wearing a gray jacket. Grandville Farmer
stated in court that the man wearing a beige or gray jacket
was the one who shot Lewis, but stated that petitioner was
wearing a navy jacket. Furthermore, although Grandville Farmer
identified petitioner as the shooter in the lineup, he
identified White as the shooter in court.
Finally, the testimony of the police officers could have
produced some doubt in the minds of the jury as to the
credibility of the state's witness. According to Officer
Leracz, Lillian Farmer had told him on the day of the shooting
that the man in the gray coat had purchased the alcohol, and
that the man in the gray coat was the man with the gun, while
Lillian Farmer testified in court that White had purchased the
alcohol but was wearing a blue coat. Also, according to
Leracz, none of the witnesses told him they actually saw the
Officer Rosas testified that Lillian Farmer never said that
she knew the shooter, or that he had been in there before, and
no one told him that they knew either man. Only "one of the
ladies" responded to his request for a description of the
offenders, and that reply was "vague". At trial, however,
Lillian Farmer testified that she had seen petitioner in the
store several times before, and Marva Davis testified that she
had known petitioner for three years. Additionally, while
Lillian Farmer stated that Marva Davis had screamed, "Why
would Phil want to do a thing like that?" immediately after
the shooting, Marva Davis' testimony as to whether she
mentioned the names of the offenders to the police was vague,
and she clearly stated that she did not see the actual
In view of the fact that the only issue in this case was one
of identification and the eyewitness trial testimony on that
issue was contradictory, this court cannot say that the
prosecutor's references to documents not in evidence, which
tended to strengthen the State's case on the identification
question, was harmless beyond a reasonable doubt. There was "a
reasonable possibility that the error[s] might have
contributed to the conviction." United States ex rel. Smith v.
Rowe, 618 F.2d 1204, 1213 (7th Cir.) (prosecutorial comments on
defendant's failure to give alibi to law enforcement officers
not harmless error
in light of contradictions in State's identification
evidence), vacated and remanded on other grounds, 449 U.S. 810,
101 S.Ct. 57, 66 L.Ed.2d 13 (1980). See also Favre v.
Henderson, 464 F.2d 359 (5th Cir. 1972) (admission of disputed
testimony not harmless beyond a reasonable doubt since without
disputed testimony prosecution had questionable case). Only in
situations where the State's evidence is so strong that, even
excluding the improper comments, it has proved its case against
the defendant beyond a reasonable doubt should the court
decline to issue the writ when there has been an error of
constitutional magnitude. Cramer v. Fahner, 683 F.2d at 1385.
Cf. Dean v. Israel, 516 F. Supp. 477 (E.D.Wis. 1981) (petition
granted even though evidence of guilt overwhelming, because
prosecutorial misconduct violated specific constitutional
guarantees of Fifth and Sixth Amendments).
Prejudice caused by improper remarks may be cured by timely
objection and appropriate action by the court. See United
States ex rel. Burnett v. Illinois, 619 F.2d 668, 675 (7th Cir.
1980), cert. denied, 449 U.S. 880, 101 S.Ct. 229, 66 L.Ed.2d
104 (1980); United States ex rel. Clark v. Fike, supra. The
instructions must be considered as a whole, and it is
sufficient if they treat the issues fairly and adequately.
United States v. Isaacs, supra. Even where an objection to an
improper remark is overruled, proper instructions may be
sufficient to cure an improper remark if the remark, in the
context of the entire trial, is not so devastating as to
constitute a denial of due process. United States ex rel.
Gardner v. Meyer, 519 F. Supp. 75, 81 (N.D.Ill. 1981).
Some comments, however, may be too clearly prejudicial for
a curative instruction to mitigate. See Donnelly v.
DeChristoforo, supra; United States ex rel. Smith v. Rowe,
supra. In Rowe, a general instruction that the arguments of
counsel were not evidence, which did not specifically address
the issue of whether the defendant could properly be impeached
by his pretrial silence, was insufficient to render the
prosecutor's reference to the defendant's pretrial silence
harmless beyond a reasonable doubt. See also Houston v.
Estelle, 569 F.2d 372, 373 (5th Cir. 1978) (instruction by
trial judge that jury disregard improper remarks insufficient
to cure prejudice in view of egregiousness of prosecutor's
conduct and remarks, prejudicial impact of remarks on
defendant's right to object, and excessive punishment imposed
by jury which was evidence of jury prejudice).
In this case the prosecutor's comment regarding the police
reports was not cured. Although the court immediately
sustained the defense objection to the prosecutor's reference
to the police reports and generally instructed the jury that
closing arguments are not evidence,*fn16 no curative
instruction was given immediately after the remark was made.
Rather than directing the jury's attention to the remark
particularly challenged, declaring it to be unsupported, and
admonishing the jury to ignore it, see Donnelly, the court
relied on a general instruction to mitigate any prejudice. In
light of the seriousness of the prosecutor's misconduct, the
equivocal nature of some of the evidence, and the manifest
confusion of the jurors, we cannot say that the trial court's
rulings and instructions cured the constitutional errors.
The court concludes, therefore, that there is a reasonable
possibility that prosecutorial misconduct contributed to
petitioner's conviction, and that the errors were therefore
not harmless beyond a reasonable doubt. Accordingly, the
petition for habeas corpus is granted, subject to appeal or an