Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 84 C 9975--Ann C. Williams, Judge.
Wood, Coffey, and Ripple, Circuit Judges.
Petitioner-appellant Samuel Houston Coleman appeals the district court's denial of his petition for a writ of habeas corpus under 28 U.S.C. § 2254 on the ground that he failed to preserve a substantive claim of error in state court. We affirm.
After a jury trial in the Circuit Court of Lake County, Illinois, Coleman was convicted of rape and unlawful restraint, and sentenced to concurrent terms of twenty-five years imprisonment for rape and three years imprisonment for the unlawful restraint. The Illinois Appellate Court affirmed his rape conviction but vacated his conviction for unlawful restraint. The Illinois Supreme Court denied his petition for leave to appeal the rape conviction, and Coleman filed a writ of habeas corpus in the federal court.
On December 20, 1982, prior to his trial date in the Illinois state court system (February 7, 1983), the trial judge granted Coleman's motion for an order requiring that the state preserve any evidence of blood or sperm in its possession, for examination by defense experts. At a hearing on January 17, 1983, the trial court, again at Coleman's request, entered another order directing the Illinois Department of Law Enforcement's Crime Lab to perform a "secretor test"*fn1 of that evidence for the purpose of comparing the results of the test to blood and saliva samples from Coleman and the victim.
Notwithstanding the court's orders, on January 21, 1983, Coleman's attorney (on Coleman's behalf) met privately with the state prosecutor handling the case, Michael Fusz, and asked him to agree to postpone the secretor test. Fusz responded that the state intended to comply with the court's order directing the Illinois Crime Lab to proceed with the secretor test. Defense counsel emphatically replied that she did not intend to "pursu[e] that avenue of defense" and, if the state insisted on testing her client, she would seek an order to prevent the test. The state's attorney replied that the State intended to perform the test despite defense counsel's objections.*fn2 Coleman's attorney failed to carry through with her threat to seek a court order barring the administration of the secretor test and never filed the threatened motion to bar the test. Sometime after a private meeting between respective counsel on January 21 (before the January 31 pre-trial conference) the State's Attorney's Office determined that the results of a secretor test were unnecessary for its case, and advised defense counsel that the prosecution did not intend to perform the test. Neither the State nor defense counsel made known to the trial court prior to the pre-trial conference that they had decided not to comply with the court order and have the defendant tested.
Sometime prior to the January 31, 1983, pre-trial conference, after she had been advised of the prosecution's agreement with her test decision, Coleman's attorney consulted with her client and changed her mind, and decided that the test should be performed. Thereafter, at the pre-trial conference on January 31, 1983, (one week prior to trial), the defense attorney reversed her position concerning whether Coleman should be tested, and advised the court for the first time that its order requiring the secretor testing had not been carried out. Although the trial court had never withdrawn its order, Coleman's attorney requested an immediate order "reinstating" the court's order of January 17 requiring the tests. The trial judge denied Coleman's motion to continue the testing order, stating:
"Well, you are both as officers of the court have represented I think generally speaking the same conversation between you and that is that you no longer wanted that order enforced. . . . And so I deny your motion for any -- to reinstate the order and you ought to know that if you are dealing with a court order, it ought to be done here in court and not in the State's Attorney's Office or in your office."
The parties did not raise the question of testing again until after trial (with the defendant's filing of post-trial motions), and as a result of defense counsel's conduct and the court's refusal to continue the testing order, the secretor test was never performed. Coleman proceeded to trial and a jury convicted Coleman of rape and unlawful restraint.*fn3
Subsequently, Coleman appealed his convictions to the Illinois Appellate Court, arguing in part: (1) that the trial court's order refusing to "reinstate" or continue the testing order should be construed as a trial court finding that Coleman had "waived his right to the state-paid services of an expert witness [to perform the secretor test]," and (2) that the court erred in so ruling. Affirming the trial court's denial of Coleman's motion to continue the January 17 order requiring the secretor test, the state appeals court initially recognized "that circumstances may exist wherein an indigent defendant would be entitled to the state-paid services of an expert witness deemed necessary to his defense." Nevertheless, the court held that:
"We do not consider in these circumstances that the trial court erred in refusing to again order the tests. A defendant must take affirmative action to protect his own rights when faced with a possible denial of due process (see People v. Smith (1982), 111 Ill. App. 3d 895, 67 Ill. Dec. 565, 444 N.E.2d 801), and failure to do so or taking action inconsistent with his asserted due process right may result in its waiver. (People v. Scott (1979), 77 Ill. App. 3d 1003, 33 Ill. Dec. 563, 396 N.E.2d 1287.). The trial court, reasonably enough, concluded defendant no longer wished the test to be performed and had waived his right to it. Even were we to consider the denial of defendant's second request for testing to be error, which we do not, it was clearly invited by the conduct of defendant and ...