Appeal from the United States District Court for the Northern District of Illnois, Eastern Division. No. 84-C-8112-Charles P. Kocoras, Judge.
Wood Jr., and Cudahy, Circuit Judges, and Eschbach, Senior Circuit Judge.
ESCHBACH, Senior Circuit Judge.
Petitioner was convicted of two counts of murder in state court, after a retrial following reversal of his original convictions necessitated by the introduction of an improperly obtained confession. In his direct appeal, the Illinois Appellate Court held that the admission at his trial of an inconsistent exculpatory story violated Miranda and that the admission of evidence of and prosecutor's comments on the defendant's refusal to talk to police when first asked about the murders was erroneous under state law (declining to decide whether such errors also violated the United States Constitution). However, it also held that the errors were harmless beyond a reasonable doubt, because it found that three witnesses had testified to defendant's admissions of guilt. Petitioner sought and was denied state post-conviction relief on grounds not relevant to this appeal. Petitioner then sought a writ of habeas corpus in the district court, under 28 U.S.C. § 2254 (1982). The district court accepted the Illinois Appellate Court's conclusion that the errors were harmless and denied the writ. Because we agree that the complained-of errors were harmless beyond a reasonable doubt, we affirm.
A. State's Evidence Independent of the Claimed Constitutional Violation
On the morning of January 18, 1977, two teenagers, James "Scopie" Robinson and his sister Connie Robinson, were brutally murdered. Each suffered multiple stab wounds-Connie's were so severe that her viscera protruded from them. Police discovered the bodies that afternoon at between 4:30 and 4:45 p.m. The bodies were first discovered shortly after 4:30 p.m. by one James Douglas, the ex-husband of the children's mother, Noyalee Robinson. Police were notified and arrived at the scene a short time later. The defendant, Johnnie Lee Savory, who was fourteen years old at the time of the murders, was an acquaintance of Scopie's and had been at the Robinson home the night before. He left the Robinson home sometime between 10:00 and 11:00 that night, leaving behind a bottle of clear nail polish that belonged to him and was later found by police at the scene. Mrs. Robinson and her ex-husband testified that the victims were alright at that point in time and were sleeping the next morning at between 6:30 and 7:00 a.m., when the two adults left for work. One of Connie's friends had tried to call her from approximately 9:00 a.m. onward on the day of the murders. The coroner's report was consistent with a time of death for the two youths of sometime before 9:00 in the morning.
When police arrived at the scene, they observed several things which were inconsistent with the condition of the household when the adults left (according to their contemporaneous statements to police and later testimony). In particular, the television had been removed from a stand on which it was usually placed and set on the floor with the screen facing the wall. Additionally, two large sticks of the type which might be used in practicing martial arts were found on the floor, one of them near Scopie's body. An empty can and a container of crackers were found on the kitchen floor. Also, a vacuum cleaner was blocking the entrance to Connie's bedroom, where the two bodies were found. Finally, the keys of the house were found on the floor in the room with the television. Mrs. Robinson testified at trial that the keys were usually left in the house so long as any family member was home, but were then usually placed in the mailbox when the last person departed.
Other aspects of the scene were not observed by police, because they had been altered before the arrival of police on the scene, but were recounted to police by Douglas, Noyalee Robinson, or their landlord and his employee, who had returned to the house before police arrived to assist Douglas. These included the fact that the phone in the room where the bodies were found had been off the hook and had blood on it. Also, Connie's two-year-old child had been found, alive, in the other bedroom, but he had been removed from the house by Douglas.
After police made general observations of the scene and took statements from the witnesses then present, they called for the coroner and police laboratory technicians to gather physical evidence. Blood later determined to be of the same types (O and A) as that the victims was found in numerous locations in the house, including on the light switch in the bathroom. Additionally, traces of blood were found near the bathroom sink through a technique called "Luminol" testing, but the type could not be identified. Several hair strands were also found in the bathroom sink, some of which were later determined to be consistent with the hair of the defendant. Noyalee Robinson Douglas both testified that Savory had not entered the bathroom on the night before the murders and both recalled using the sink that morning and running water in it.
Other physical evidence was collected from the defendant of his father. A blue pair of pants was collected from defendant's father and was found to have type A blood on it. The ownership of the pants was in dispute at trial, with the father testifying that they were his and that the blood was from an accident in which he had injured his leg (no evidence of the father's blood type was introduced). Additionally, a knife belonging to the defendant was found to have blood on it, but the type could not be determined. The knife was black in color and had a smooth, rather than a serrated, blade. According to the coroner, a smooth bladed knife had inflicted the fatal wounds.
Finally, the state introduced evidence of several admissions the defendant had allegedly made to third parties on the day of the murders. Ella Ivy testified that she had spoken of the murders and that he had said that he had been at Scopie's house, that he and Scopie had been practicing Karate, and that he had "accidentally cut him or something, by accident. But he was all right when he left." She further testified that the defendant had returned to her house sometime before 4:00 the same afternoon and told her that Scopie and his sister were dead. She then testified that he had left and was not home when her brother and sister arrived at 4:15, but that he returned again around 4:30 (before the news came on) and that he told her that the baby was in house with Scopie. According to her, "[f]irst he told her that the baby was in the house with Scopie. According to her, "[f]irst he told me that the baby was in the oven. And then he retracted and said the baby was in the bedroom with the dog." She also testified that he stayed with the Ivy's that night, and that he had a black knife in his possession.
Frank Ivy testified that he had returned to the Ivy home after school at approximately 3:45 on the afternoon of the murderers and that the defendant was not there at that time. He testified that the defendant came to the home at about 5:30, and that they watched a news account of the murders on television. He further testified that the defendant returned to the Ivy house at about 8:00 that evening and told him:
A. "We was practicing Karate."
Q. Who was practicing Karate?
A. Scopie and him. And he accidentally stabbed him.
Q. Did he say anything concerning Scopie's sister at all?
R. Vol. VII at p. 407.*fn1
Finally the state called Tina Ivy, who testified that she had seen the defendant at her house on the afternoon of the murders at about 2:30 and that the two had gone to catch a bus to school. She testified that while they were waiting on the bus, which arrived at 3:00, the defendant had left twice: once to go to his house and put on a jacket and another time, when she did not see where he went (although he walked in the direction of his house, rather than hers). She further testified that at around 7:00 that evening he told her that "two kids had got killed." She also said that he told her "[t]hat him and Scopie had been together earlier that ...