Appeal from the United States District Court for the Central District of Illinois, Danville Division, No. 86 C 2255-Harold A. Baker, Judge.
Wood and Cudahy, Circuit Judges, and Will, Senior District Judge.*fn*
Petitioner, Larry Johnson, convicted of two counts of murder and one of attempted murder, filed a petition for a writ of habeas corpus in federal district court. He contended that he was denied his constitutional rights to due process and a fair trial when the state court excluded as hearsay relevant and reliable evidence tending to show that another person had committed the crimes. The district court denied the petition and Johnson appeals. We affirm.
On April 21, 1984, the bodies of Patrick Mitchell and his daughter, Bobbi Jo Herriford, were found at Mitchell's house in Galesburg, Illinois; both died of gunshot wounds to the head. Mitchell's son, Michael Herriford, was found critically wounded, also with a gunshot wound to the head.
The most critical element of the evidence against Johnson was his connection to the murder weapon. Three.45 caliber shells were found at the scene. In May, the stock of a.45 Colt pistol was found in nearby Warren County. Its serial number matched that of a gun that Johnson, who owned a gun shop, had sold to Steven Crain prior to April 16, 1984. Crain testified that he had given the gun back to Johnson on April 16th at Johnson's request. Johnson instructed Crain to tell anyone who asked about the gun that he, Crain, had sold it at a gun show. When Crain learned that Mitchell had been killed with a.45 caliber gun, he asked Johnson what had become of the gun that he had purchased and returned. Johnson told him that it was in a safe place and reminded him to adhere to the gun show story. The condition of the weapon that the police recovered made it impossible to conduct ballistic tests. However, a comparison of spent shell casings obtained from a prior owner of the gun and casings found on the scene showed that both sets had been fired from the same weapon.
Johnson was also implicated by his ties to Mitchell. Johnson was identified to the police as an associate of Patrick Mitchell in the drug business. Johnson himself admitted to investigators that in 1983 he had twice accompanied Mitchell when Mitchell obtained large quantities of cannabis.
On May 16, 1984, after recovering the gun and discovering that it had once been in Johnson's shop, the police questioned Johnson about the gun and the shootings. After eight hours of questioning, Johnson stated: "If you want a confession I'll confess. I knocked on the door. Pat came to the door. I shot him. The boy came and I shot him, and I went into the living room, and I shot the girl." At trial, Johnson contended that he only gave this statement to secure the release of his girlfriend, who was also in police custody at the time. The defense also established that the sequence of events Johnson described in this confession was inconsistent with the physical evidence and that the police had not believed the confession at the time it was given.
Johnson was also identified as the murderer by Michael Herriford. Immediately after the shootings, Michael told a police officer who interviewed him at the hospital that two men and a woman had been involved in the shootings. On August 14th, however, Michael picked Johnson out of a line-up. At trial, Michael testified that he answered a knock on the door on April 21, 1984, and brought Johnson into the bar room to see Mitchell. Michael testified that Johnson then grabbed him, put a gun to his head and said, "I want free dope." When Mitchell refused, Johnson shot Mitchell and then Michael. (Michael had no recollection of Johnson's shooting his sister, but the physical evidence was consistent with Johnson's having walked into an adjoining room and shot Bobbi Jo immediately after the first two shootings.)
A neurologist for the defendant testified that damage to Michael's temporal lobe made his memory "suspect." A psychologist testified that Michael's testimony could be unreliable because of a phenomenon called "memory overlap," the completing of partial memory by the unconscious creation of artificial memory. Neither of these experts personally examined Michael, although the neurologist reviewed the x-rays and hospital records.
Johnson testified in his own behalf. He repudiated his confession of May 16th and denied any involvement in the shootings. He also provided a chronicle of his activities of April 21st which was corroborated by five witnesses. This account was contradicted, however, by Johnson's initial statement to police that he had gone fishing on April 21st-a story made implausible by the rainy weather that day. Johnson also explained that he had retrieved the.45 from Crain to sell it to Rex McCreary, who had asked for an unregistered gun. McCreary, according to Johnson, had delivered cannabis to Patrick Mitchell on several occasions. In his rebuttal testimony, Rex McCreary conceded that he knew Mitchell, but denied shooting him or purchasing a gun from Johnson.
At trial Johnson's counsel sought to establish that Mitchell had been threatened by a supplier, "Larry T.," whom Mitchell said he owed $10,000. The trial court rebuffed defense counsel's attempt to call witnesses to testify as to Mitchell's statements about Larry T., ruling that the proffered testimony was inadmissible hearsay. Defense counsel contended that this testimony was admissible under the state-of-mind exception to Illinois' hearsay rule. The defense reversed its objection through an offer of proof consisting of police summaries of statements given by the proposed witnesses during the police investigation.
The jury convicted Johnson of two counts of murder and one count of attempted murder. Johnson was sentenced to natural life in prison for murder and a concurrent ...