The opinion of the court was delivered by: Moran, District Judge.
Petitioner, Phil Shaw, is serving a sentence of 40 years at
Stateville Correctional Center after a jury convicted him of
murder. His conviction was affirmed by the Illinois Appellate
Court in People v. Shaw, 98 Ill. App.3d 682, 54 Ill.Dec. 84,
424 N.E.2d 834 (1st Dist. 1981), and the Illinois Supreme Court
denied his petition for leave to appeal on November 30, 1981.
In this court Shaw seeks issuance of a writ of habeas corpus on
the same grounds that he unsuccessfully raised in the Illinois
Appellate Court: (1) that a prior consistent statement of a
state's witness should not have been introduced as an exception
to the prohibition against hearsay evidence; (2) that the court
erred in instructing that only the defense attorney who was
conducting cross-examination could make appropriate objections;
and (3) that prosecutorial misconduct during closing argument
deprived him of due process. Respondents have moved for summary
judgment and petitioner has cross-moved for summary judgment.
After a thorough examination of the state court proceedings the
court concludes that petitioner's claim of prosecutorial
misconduct warrants habeas corpus relief.
The Illinois Appellate Court determined that petitioner's
claims of prosecutorial misconduct did not warrant disturbing
the jury verdict or the trial court's judgment below. The
state court arrived at this conclusion "in light of [the]
fact" that a "guilty verdict was the only reasonable
conclusion to be reached based on the evidence," and the fact
that "the trial judge promptly sustained objections to most of
the improper remarks". This finding will be critical to the
disposition of petitioner's prosecutorial misconduct claims if
it is entitled to a presumption of correctness under
Sumner v. Mata, 449 U.S. 539, 101 S.Ct. 764, 66 L.Ed.2d 722
(1981). Sumner held that the habeas corpus statute requires
federal courts to presume that the factual findings of a state
trial or appellate court
are correct unless certain statutory exceptions apply.
See 28 U.S.C. § 2254(d) (1976).*fn1 The questions to be
decided, therefore, are (1) whether the state court finding in
this case is a "factual finding" entitled to the § 2254(d)
presumption, and (2) whether any of the statutory exceptions
"Issues of fact" as used in 28 U.S.C. § 2254(d) are "basic,
primary, or historical 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 n. 6, 83 S.Ct. 745, 755 n.
6, 9 L.Ed.2d 770 (1963) (quoting Brown v. Allen, 344 U.S. 443,
73 S.Ct. 397, 97 L.Ed. 469 (1953) (opinion of Frankfurter,
J.)). See United States ex rel. Rivers v. Franzen,
692 F.2d 491, 497 (7th Cir. 1982). Conclusions of law, however, or mixed
determinations of law and fact, are not entitled to the
presumption of correctness under § 2254(d). Sumner v. Mata
("Sumner II"), 455 U.S. 591, 597 and n. 9, 102 S.Ct. 1303, 1306
and n. 9, 71 L.Ed.2d 480 (1982) (per curiam) (citing Cuyler v.
Sullivan, 446 U.S. 335, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980);
Brewer v. Williams, 430 U.S. 387, 97 S.Ct. 1232, 51 L.Ed.2d 424
(1977); Neil v. Biggers, 409 U.S. 188, 193 n. 3, 93 S.Ct. 375,
379 n. 3, 34 L.Ed.2d 401 (1972)). See also United States ex
rel. Rivers v. Franzen, supra; United States ex rel. Cosey v.
Wolff, 682 F.2d 691, 693 (7th Cir. 1982).
The line between issues of fact and conclusions of law, or
mixed determinations of law and fact, is often difficult to
draw with precision. Cf. United States ex rel. Rivers v.
Franzen, supra. Prior case law, however, provides some guidance
as to how the state court findings in this case should be
classified. In Moore v. Duckworth, 687 F.2d 1063 (7th Cir.
1982), where the jury was prevented, under Indiana's rape
shield law, from being told that the victim was pregnant by her
boyfriend, the court accorded the presumption of correctness to
the Indiana Supreme Court's finding that the record did not
indicate that the jury knew the victim was pregnant. Similarly,
the finding of the Indiana trial and supreme court that
petitioner never requested an attorney although advised of that
right was held to be a determination of fact under Sumner and §
2254(d) in Holleman v. Duckworth, 700 F.2d 391 (7th Cir. 1983).
The Seventh Circuit has also characterized various state
court determinations as involving mixed questions of law and
fact and therefore not entitled to the presumption of
correctness under § 2254(d). See, e.g., United States ex rel.
Rivers v. Franzen, supra (question of bona fide doubt as to
defendant's competency to stand trial); United States ex rel.
Scarpelli v. George, 687 F.2d 1012 (7th Cir. 1982), cert.
denied, ___ U.S. ___, 103 S.Ct. 817, 74 L.Ed.2d 1015 (1983)
(question of whether trial court violated defendant's right to
cross-examine witness regarding prior inconsistent statements);
United States ex rel. Cosey v. Wolff, supra, (question of lack
of effective assistance of counsel).
The Supreme Court has stated that while the circumstances of
pretrial identification procedures present questions of fact
to which the § 2254(d) presumption applies, the ultimate
question as to the constitutionality of pretrial identification
procedures is a mixed question of law and fact that is not
governed by § 2254. Sumner II, 455 U.S. at 597, 102 S.Ct. at
1306. Similarly, a distinction was drawn between a factual
determination and the application of law to fact in United
States ex rel. Gorham v. Franzen, 675 F.2d 932 (7th Cir. 1982).
In Gorham petitioner alleged that a confession had been
obtained after he had refused to make a statement, and had
therefore been introduced at trial in violation of his Fifth
Amendment rights. Gorham held that the determination by the
state appellate court that petitioner had equivocated as to
whether he wished to make a statement was entitled to a
presumption of correctness by the district court unless the
finding was not fairly supported by the record. 675 F.2d at
936. The question of whether petitioner had exercised his right
to remain silent was a separate determination, however, which
was a conclusion of law or at least a mixed determination of
law and fact. Id.
In this case, the appellate court's finding regarding the
sufficiency of the evidence does not present a "basic, primary
or historical fact" in the sense of a "recital of external
events and the credibility of their narrators," but is more in
the nature of the ultimate question of constitutionality
presented in Sumner II. The appellate court's ruling that a
guilty verdict was the only reasonable conclusion involves an
evaluation of the evidence that this court is required to make
under the harmless error doctrine whenever a habeas petitioner
claims that prosecutorial comment deprived him of a fair
trial.*fn2 A finding of no harmless error is an integral part
of the ultimate determination of unconstitutionality; it is, in
effect, the legal standard by which such claims are judged and
is thus not subject to the Sumner presumption. This court must
therefore review the evidentiary record to decide the
constitutional question raised.
Critical to a resolution of this petition is that the
factual issue presented to the jury was whether or not
petitioner was the person who shot Edward Lewis. The state did
not seek to convict petitioner as an aider or abettor or as a
conspirator or in any capacity other than as the man who
pulled the trigger. The weight of the evidence, then, has to
be measured against the burden the state assumed.
It is undisputed that on March 14, 1978, just before closing
his liquor store at approximately 2:00 a.m., Edward Lewis let
two men into the store, one of whom pulled a gun and shot and
killed Lewis. The grand jury subsequently returned an
indictment charging petitioner and Ricardo White with Lewis'
murder (C. 8).*fn3 Petitioner was represented by the public
defender, and a privately-retained lawyer, William Wood,
appeared on behalf of co-defendant White (C.IA, C.6 C.31). The
public defender's motion for a severance was granted (C.IA,
C.26), and the cases were tried simultaneously, White having
waived a jury trial (R.83, 86-87, 279-80).*fn4
The state's eyewitness testimony placed petitioner in the
liquor store but was not wholly free of uncertainties. At
trial both Lillian Farmer and Marva Davis identified
petitioner as one of the two men who entered the liquor store
the morning of the shooting (R. 296, 370). Mrs. Farmer had
seen both petitioner and White before, and had seen both
defendants in the liquor store earlier that evening (R. 295,
304-5). Marva Davis testified that she had known petitioner
and White for about three years prior to the shooting
incident, and stated that both of them came in the store often
(R. 368, 373). Additionally, Mr. Farmer had identified
petitioner in a police lineup on the day of the shooting (R.
Despite the fact that all three eyewitnesses made positive
identifications of petitioner as one of the two assailants,
certain aspects of the eyewitness testimony also supported the
possibility of misidentification. During cross-examination
defense counsel showed Mrs. Farmer photographs of Ricardo
White and Robert Craig. She admitted that, on the day of the
shooting, police had presented those photographs to her and
she had identified them as Lewis' assailants (R. 331-36). On
redirect, the state showed Mrs. Farmer some additional
photographs and asked if she had picked any of them as
depicting Lewis' assailants at the hearing on a motion to
suppress identification. Mrs. Farmer indicated that she had
selected a photograph of petitioner at the suppression hearing
(R. 345). Additionally, when Mr. Farmer was shown photographs
at the police station three or four days after the shooting,
he identified photographs of petitioner and Ricardo White, and
also picked out a photograph of John Shaw, Phil Shaw's
brother, as resembling one of the two men he saw in the store
(R. 445-48). Neither John Shaw nor Robert Craig were in the
lineup which Mr. and Mrs. Farmer viewed on the day of the
shooting (R. 527-29).
Marva Davis' recollection was vague regarding her statements
to the police on the night of the murder. She first testified
that after the shooting she probably did not mention the names
of the offenders to the police, but then stated that she did
not know what she told the police. Davis went on to say that
she was not sure if she told the police that White was present
but she did tell them that petitioner was there (R. 392). In
further testimony Davis stated she was not sure if she told
police that she knew the two men who came to the store, and
did not know if she gave their names (R. 393). Davis did state
that she gave the police petitioner's phone number the night
of the shooting (R. 397). Officer Rosas, a beat officer,
testified that he arrived at the liquor store and spoke with
the witnesses shortly after the shooting. According to Rosa
none of the witnesses gave him the name of any alleged
offenders (R. 510).
Valerie Johnson, a friend of the Shaw family, testified for
the defense. She stated that she received a phone call from
Marva Davis several days after the shooting (R. 515-16).
According to Johnson they discussed the incident and Davis
stated that Rick White and "another guy" had been involved.
Johnson said that Davis never mentioned petitioner's name (R.
517). Marva Davis, on cross-examination, testified that
Johnson had initiated the telephone call to find out "what was
going on" (R. 389, 390). She denied that she had told Johnson
that a man named Track shot Lewis or that she had called
Johnson because she felt guilty and wanted to know what had
happened to petitioner (R. 390).
The evidence concerning who actually shot Lewis was
significantly more contradictory. Although Lillian Farmer said
that she saw a gun in petitioner's hand following the
shooting, her testimony was inconsistent in her description of
the man who had the gun. Mrs. Farmer testified that the first
individual to enter the store was White, who immediately went
over to Marva Davis, 30 feet to the left of Mrs. Farmer (R.
297, 321-22). White then came over to Mrs. Farmer and bought
a half-pint of gin (R. 298). Petitioner was, meanwhile,
standing by the cigarette machine near Mrs. Farmer's counter,
facing sideways (R. 298, 315-16).
Mrs. Farmer then testified that while petitioner was still
standing near the machine, about 10 feet from Lewis, White and
Lewis began "messing around," tussling, pulling, reaching or
hitting at each other, and White appeared to be trying to
catch Lewis by the arm or go in his pocket (R. 300-301). Mrs.
Farmer thought they were just playing, and turned to get a
Coke which a third customer had ordered. When she turned
around she heard four shots and saw a gun in petitioner's hand
pointed at Lewis (R. 302). Mrs. Farmer got down on the floor
after she turned around and saw the shots coming (R. 338). ...