Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 82 C 6820-- Paul E. Plunkett, Judge ; Appeal from the United States District Court for the Central District of Illinois, Danville Division. No. 83 C 2002-- Harold A. Baker, Judge.
Before CUMMINGS, Chief Judge, BAUER, and POSNER, Circuit Judges.
The two cases captioned above involve the separate petitions for writs of habeas corpus of two co-defendants, both of whom were convicted of aggravated battery, attempted armed robbery, and attempted murder in a joint jury trial in an Illinois state court. Raymond Burke's petition was denied by Judge Plunkett in the Northern District of Illinois; David Olbrot's petition was granted by Judge Baker in the Central District of Illinois. Because both petitioners challenge the same prosecutorial closing argument as so prejudicial as to have denied them their constitutional right to a fair trial, we consolidate the cases here and issue one opinion in which we find that the prosecutor made constitutionally impermissible indirect references in his closing argument to the defendants' failure to testify. Judge Baker's order that a new trial for Olbrot take place within 120 days of the mandate reaching his court is affirmed. On remand Judge Plunkett should issue the writ ordering the release of defendant Burke unless he is tried within the 120-day time limit of the writ.I. FACTS
On October 30, 1976, two masked men attempted an armed robbery at Musket & Henricksen Drug Store in Skokie, Illinois. The pharmacist on duty from midnight until 8 a.m. at the drug store was an off-duty Chicago Police Officer, Edward Thun. Thun was an investigator assigned to the Area 6 Robbery Division of Chicago Police Department who worked part time at the drug store. At 2 a.m. an acquaintance of Thun's, Floyd Hannum, an investigator for the Secretary of State's Office, came in to pick up two prescriptions. Hannum then remained in the store behind the counter conversing with Thun. Hannum had been awake for 21 hours at the time of his visit to the pharmacy.
At trial, Thun testified that at 2:45 a.m. one man, allegedly Burke, wearing a Halloween mask that covered his face, approached Thun, drew a .38 caliber revolver, and ordered Thun away from the cash register. As he moved away, Thun grabbed the man's gun and a struggle ensued. Thun hit the man and his mask became dislodged so that Thun could no longer see the man's eyes. At that point, Thun was shot in the chest by the second man, who was positioned at the end of the aisle, eight to ten feet away. The second man, allegedly Olbrot, wore a bag over his head with holes cut out over the eyes and mouth. Thun fell to the floor but remained conscious.
Hannum testified at trial that he also saw two men, one with a rubber face mask and one with a plastic bag over his face. Hannum saw Thun wrestling with the man wearing the mask. When he heard the shot. Hannum ran around the prescription counter behind which he had been standing. Hannum observed Olbrot standing in a crouched position, approximately 20 feet away, holding a gun in his hand. Hannum observed Olbrot for only a few seconds, but he testified that the bag over the man's face had shifted almost to his nose so that Hannum saw a mustache.
Hannum testified that both men ran from the drug store and he pursued them. Hannum turned a corner before he reached an aisle leading to the door through which the two men were leaving. At the end of the aisle, Hannum fired his weapon at the two men as they were opening the door. Hannum thought he had wounded Olbrot, but was not sure. Hannum testified that he was again able to see the face of the second man because the bag had moved upward. Hannum also testified, however, that only Burke turned around to fire and Hannum as they were opening the door. Hannum did not see the men outside the drug store. From the corner he saw two people running down the street. They had been customers in the drug store when the assailants first entered.
Skokie police officer Robert Heelan, responding to a call about the drug store shooting, attempted to intercept a green Pontiac Firebird heading east on Main Street away from the drug store by making a roadblock with his squad car. The approaching car slowed down but did not stop for the roadblock. Heelan testified that he was able to see the driver through the driver's window, however, before the car sped off. The car was 20 feet from Heelan when he saw the driver. The intersection was lit by a streetlight and a dim light from a closed restaurant nearby. The driver's window was rolled down and Heelan was within four feet of the car as it sped by. Heelan saw only one person in the car and identified the driver as Burket. Heelan gave chase but lost the car in Evanston. It was found in Chicago the next day, and Heelan identified it as the car he had chased. The car was registered to Olbrot and a bag similar to the bag worn by Olbrot was found in the back seat. A .38 caliber revolver was found near the car.B. Identification of Olbrot
Thun never attempted to identify either suspect. Both Heelan and Hannum, however, were involved in identifying the suspects. Since the process of identification, while not our focus of attention, contributes to the result in this case, we will detail the testimony regarding the identification procedures.
Several inconsistencies regarding Hannum's idendification of Olbrot were raised at trial. The first Skokie police officer to arrive on the scene of the drug store was Officer Maher. For the purposes of sending a radio broadcast, Hannum described the two men to Maher as "two wite males approximately five foot nine inches and shorter." Maher's written report based on Hannum's description was that the men were five feet nine inches tall. Olbrot is in fact five feet one inch tall.
Hannum also testified that immediately after the robbery he gave Officer Maher a signed statement in which he described the assailants as in their "20's, mid." In 1976 the year of the attempted robbery, Olbrot was 37 years old. Hannum again recorded his observations in a report directed to his supervisor in Springfield, but in that report he did not mention that he had seen Olbrot's face.
Hannum testified that he was asked by the officers involved in the investigation to go to the Chicago Police Department, Area 6 Robbery Division, to look through mug books. Hannum did not make any pretrial physical identification of Olbrot. When Hannum viewed the mug books on October 31, Olbrot was already a suspect because his car had been identified by Heelan. In the first mug book Hannum viewed, he identified the photo of Olbrot as one of the two men involved in the robbery. In the next book Hannum identified a photo of Burke. No police officers were present in the room with Hannum when he looked through the mug books. The Chicago Police Department failed to record the page number on which Olbrot's photo was found in the mug book and the numbers that would identify the other photos surrounding petitioner. The transcript indicates that such a record is required by Chicago police Department Identification procedures.C. Identification of Burke
Burke became a suspect in the attempted armed robbery case when he made a phone call to Paul Martin, a mutual friend of himself and Olbrot, on October 30, 1976. During that phone call, Burke asked Martin if he had seen Olbrot. At the time of Burke's phone call, about 10:45 a.m., several police officers were in Martin's home questioning him regarding the drugstore incident. Martin replied to Burke that he had not seen Olbrot, but that there were a lot of police officers were in Martin's home questioning him regarding the drugstore incident. Martin replied to Burke that he had not seen Olbrot, that that there were a lot of police officers present in his house. Officer Cappitelli testified that he then talked to Burke over the phone from the Martin residence and told Burke that he wanted to talk to him about Olbrot. Cappitelli testified that Burke volunteered the information that Olbrot was supposed to have met him that morning but had not arrived. Cappitelli then called Lieutenant Locallo at Area 6 headquarters and told him to talk to Burke and Burke's mother's home. When officers arrived at Burke's mother's home at 11:20 a.m., Burke was not there.
Lois Burke, Burke's estranged wife, also testified at trial that police officers made warrantless searches of her home on October 30, October 31, November 1, and November 2, 1976 in the presence of herself and her three children. Although Mrs. Burke did not give them permission to take anything, on November 1 and 2 she noticed that photographs of Burke were taken from her home.
Area 6 Officer Fornelli testified at trial that on October 30, 1976, at 6:00 a.m., shortly after the attempted robbery, Heelan was shown a mug book by Skokie police officers, but was unable to identify and picture resembling the driver of the car. In Heelan's report, dated November 4, 1976, he did not state that he viewed a mug book, but that he had "observed several photos." Area 6 Officer Paul testified that he could not recall how many pages were in the book nor could he describe the photos, other than to say that Heelan viewed them on October 30, and they were black and white penitentiary release photos. Skokie Officer Hennessey testified that he removed a photo of Olbrot from the book, doctored it by erasing the mustache and changing the hairline, and showed in to Heelan. Heelan did not identify Olbrot as the driver of the vehicle. Heelan testified that while he was attempting to make an identification he was told that a particular photograph was of a suspect name Olbrot.
On October 31, 1976, at 5:00 a.m., Heelan was shown another mug book by Fornelli and Paul and identified a picture of Raymond Burke. Thereafter Heelan was shown another five or six mug shots of other arrestees, plus another picture of Burke. Heelan testified that in this second set of pictures Burke was depicted wearing a tuxedo and "big tie." Fornelli testified that he did not inventory the mug book or record the page location of Mr. Burke's picture or the names of the other persons pictured on the page. Hennessey's report of the incident does not indicate that Heelan was shown mug books but that he was shown "more photos of the suspects." Hennessey testified that he dismantled the mug book immediately after ...