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February 13, 1984


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 apply.

"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. 410).

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).

The morning of the shooting police located the assailants' car, identified by Grandville Farmer as being the one he saw leaving the scene of the shooting, in the driveway of petitioner's residence*fn6 (R. 469). The auto belonged to Larry Craig (R. 480). The police found Ricardo White and Robert Craig, but not petitioner, at the residence (R. 472-73).

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). ...

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