Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 82 C 1987 - Thomas R. McMillen, Judge.
Before WOOD and FLAUM, Circuit Judges, and PELL , Senior Circuit Judge.
Petitioner Joseph Murneigh appeals the district court's denial of his petition for a writ of habeas corpus, arguing that his constitutional rights were violated at his trial in state court on charges of rape and deviated sexual assault when (1) the prosecutor used his silence at prior court-ordered fitness examinations in order to rebut his insanity defense, and (2) the court midway through trial ordered him to submit to an examination concerning his sanity at the time of the offenses and then allowed the psychiatrist who conducted the examination to testify against him. The district court rejected both of these contentions on the merits. For the reasons set forth below, we find that the first contention has been waived, reject the second contention on the merits, and therefore affirm the district court's denial of the petition.
Although petitioner was arrested on rape and deviate sexual assault charges in November 1973, he was not brought to trial for nearly three years as a result of a series of psychiatric examinations and judicial hearings at which he was found unfit to stand trial. Petitioner was examined for fitness numerous times by several psychiatric physicians, including Dr. Werner Tuteur and Dr. Lyle Rossiter, Jr. These physicians concluded from their early examinations that petitioner was unfit for trial, and courts concluded likewise after three separate fitness hearings held prior to 1976. At a fitness hearing held before a jury in January 1976, however, Doctors Tuteur and Rossiter testified that they had concluded from more recent examinations that petitioner was no longer unfit, and the jury accordingly returned a verdict finding him fit to stand trial.
During the period between this final fitness hearing and the trial in September 1976, petitioner and the state filed various motions and exchanged various documents relating to pre-trial discovery. In March, petitioner filed both a pro se motion notifying the state that he might rely on an insanity defense at trial*fn1 and an answer to the state's discovery requests indicating his intent to call two psychiatrists as witnesses. The state, however, did not then file a motion with the court to have petitioner examined concerning his sanity at the time of the crimes. While petitioner on several occasions stated his intention to call particular psychiatrists as witnesses for the defense, it was not until July 28 that petitioner first listed one of the doctors who had previously examined him for fitness - Dr. Rossiter - as a witness for the defense.
At a hearing held on August 3, the state then notified petitioner that in light of its receipt of a preliminary report from Dr. Rossiter, the state might later request the court to order another psychiatric examination of the petitioner. The court, the state, and the petitioner also agreed at this hearing to schedule trial to begin on September 20, 1976. On September 10, the state submitted, and the court granted, a motion to have petitioner examined by a new psychiatrist, Dr. Vladimir Urse. Finally, in a supplemental discovery document filed on September 15, the state listed Dr. Urse as a witness for the prosecution.
Jury selection for petitioner's trial began as scheduled on September 20. On that day, the state filed a supplemental discovery document listing as a rebuttal witness for the prosecution Dr. Tuteur, the other doctor who had examined petitioner for fitness. Trial began the next day as the state gave an opening statement, while the defense waived the giving of such a statement. The state introduced thirteen exhibits and called six witnesses, including the complainant, to establish the occurrence of the crimes and petitioner's participation therein. Petitioner's counsel cross-examined only three of these witnesses, and agreed to the admission of all of the exhibits save one, which was admitted over objection. With this evidence, the state completed its case-in-chief, and trial was adjourned until the next day.
When trial resumed on the afternoon of September 22, the state informed the court that Dr. Urse had become ill and would be unable to testify. the state thus requested that the court order petitioner to submit to another psychiatric examination by Dr. Tuteur and that petitioner's trial be continued until the afternoon of September 27. The court granted the state's request over the objection of the defense counsel. After the court reconvened on September 27, petitioner presented a pro se motion requesting the court to exclude Dr. Tuteur from testifying regarding his most recent psychiatric examination of petitioner, or alternatively to grant a mistrial. Petitioner stated in this motion that when Dr. Urse examined him on September 18, 1976, the doctor told him that he should be in a mental hospital. Petitioner claimed that he interpreted Dr. Urse's statement to mean that the doctor would testify for the defense, and that in reliance on this fact he decided to forego a defense of consent, declined the opportunity to make an opening statement, and withdrew pretrial motions that he had previously filed.
The state responded to petitioner's motion by submitting a letter from Dr. Urse wherein the doctor indicated, among other things, that petitioner's conduct as described by the complainant was inconsistent with the delusion that petitioner claimed to have been suffering from at the time of the crimes. The court denied petitioner's motion, and the state rested its case. The defense called as its sole witness Dr. Rossiter, who testified that petitioner was legally insane at the time of the offense, and that petitioner's conduct resulted from an elaborate delusion that petitioner described to him during a psychiatric examination in July 1976. The prosecution cross-examined Dr. Rossiter in part by eliciting from him the fact that petitioner had not related this delusion to him during a pre-trial fitness examination that the doctor had conducted in February 1975. Petitioner's counsel did not object at trial to this cross-examination.
Finally, the state called the complainant and Dr. Tuteur as witnesses in rebuttal of petitioner's insanity defense. Dr. Tuteur testified that in his opinion, petitioner was not legally insane at the time of the crimes. Furthermore, again with no objection from the defense, Dr. Tuteur stated that during four pre-trial fitness examinations that he had conducted, petitioner never described to him the delusion that petitioner later claimed to have suffered from at the time of the offenses. After the state concluded its rebuttal case, the prosecutor made a closing argument to the jury emphasizing petitioner's failure to mention his supposed delusion at numerous pre-trial fitness examinations as evidence that the delusion was a recent fabrication. Once again, the defense lodged no objection to the prosecutor's argument.
The jury ultimately returned verdicts of guilty on both the rape and the deviate sexual assault charges, and petitioner was sentenced to a twenty- to sixty-year term of imprisonment for each offense, the terms to run concurrently. Petitioner argued in a post-trial motion for a new trial that the court had erred in allowing Dr. Tuteur to testify against him, but did not specifically contend that the state's use of his silence at pretrial fitness examinations was improper. The trial court denied this motion as well as petitioner's other post-trial motions.
On appeal to the Illinois Appellate Court, petitioner raised both the allowance of Dr. Tuteur's rebuttal testimony and the state's use of his silence at prior fitness examinations as grounds for reversal. The Illinois Appellate Court affirmed in an unpublished order. With respect to Dr. Tuteur's rebuttal testimony, the court stressed that petitioner was not unfairly surprised by this testimony in light of the state's inclusion of the doctor on the witness list that was given to the defendant on the first day of trial. As to petitioner's objection to the state's use of his prior silence, the court stated initially that petitioner had not properly preserved this issue for appeal based on his failure to make appropriate objections either at trial or in his post-trial motions. Nevertheless, noting that under Illinois law an appellate court may consider errors that were not ...