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UNITED STATES EX REL. MORGAN v. LANE

January 24, 1989

UNITED STATES OF AMERICA ex rel. ROBERT MORGAN, Petitioner,
v.
MICHAEL LANE, et al., Respondents


Iland Diamond Rovner, United States District Judge.


The opinion of the court was delivered by: ROVNER

ILANA DIAMOND ROVNER, UNITED STATES DISTRICT JUDGE

 I. INTRODUCTION

 Petitioner, Robert Morgan, ("Morgan") seeks a writ of habeas corpus pursuant to 28 U.S.C. ยง 2254. Respondent is Michael Lane, the Director of the Illinois Department of Corrections. This action arises out of Morgan's conviction in state court for rape, deviate sexual assault and two counts of aggravated incest. Morgan has exhausted his state court remedies. *fn1" For the reasons stated below, the petition is denied.

 II. FACTUAL AND PROCEDURAL BACKGROUND

 Following a three-day jury trial, Morgan was found guilty of rape, deviate sexual assault and two counts of aggravated incest committed against his minor step-daughter. The trial court entered judgment on the verdict, merged the convictions for aggravated incest into the convictions for rape and deviate sexual assault, and sentenced Morgan to concurrent terms of twenty years imprisonment.

 Immediately prior to trial, the trial court granted the state's motion to exclude all disinterested persons from the courtroom during the testimony of the three juvenile witnesses. Both the media and the family members of the victim and Morgan would be allowed to remain. On the first day of trial, the trial court ordered the doors of the courtroom locked during the testimony of the victim, who was sixteen years old. The trial court deemed two of the victim's counselors to be interested parties, and allowed them to remain in the courtroom. The victim then testified that on the evening of April 14, 1983, while her mother was at work, her step-father awoke her, forcibly raped her in the living room and performed deviate sexual acts. Following the incident, the victim returned upstairs to her bedroom and told her sister and brother that Morgan had "hurt" her again. The victim was referring to the fact that Morgan had committed the same offenses against her in September, 1980, for which he had been arrested and convicted.

 The next day, prior to the testimony of the victim's eleven-year-old step-sister, the court ordered all those not directly interested in the case to remain outside the courtroom. The witness then testified as to certain of the events which occurred on the evening of April 14, 1983. Next, the victim's mother testified as to the events surrounding the 1983 incident as well as the 1980 incident. Again the record is silent on whether the courtroom doors were unlocked during the testimony of the victim's mother. Regarding the 1980 offense, the mother stated that the victim, aged twelve at the time, told her that Morgan had had sex with her, and that following his arrest, Morgan admitted to the mother that he had sexually molested the victim. Morgan objected to the testimony regarding his admission to the prior offense on the ground that it violated the marital privilege and that the testimony exceeded the bounds for proof of other crimes. The trial court overruled Morgan, but agreed to admonish the jury that the evidence regarding the 1980 offense was being presented for a limited purpose.

 Over Morgan's objection, Captain Roger Corray, Chief Investigator for the Champaign County Sheriff's Department, testified regarding the 1980 incident. Captain Corray testified that he had received a telephone call asking for his assistance in the investigation of a rape and deviate sexual assault allegedly committed by Morgan on his twelve-year-old step-daughter. Based on Corray's interview with the victim, her step-sister and her mother, Morgan was charged with rape. Officer Patrick Fitzgerald of the Park Forest Police Department then testified as to the investigation of the April 1983 incident.

 The next day, Investigator Thomas Fikjeys of the Cook County Sheriff's Police Department and David Metzger, a forensic serologist, testified on behalf of the State. Following their testimony, the trial court denied Morgan's motion for a directed verdict. Both the State and Morgan rested and closing arguments ensued. Thereafter, the jury returned a verdict of guilty on all counts, and the trial court entered judgment on the verdict. The trial court sentenced Morgan to concurrent terms of twenty years for deviate sexual assault and rape, finding that the convictions for aggravated incest merged.

 Morgan argues that (1) the exclusion of the public during the trial violated his right to a public trial; (2) the voir dire was inadequate to disclose the potential bias and prejudices of the jurors; (3) the admission of evidence of other crimes and the trial court's failure to limit the testimony concerning other crimes denied him a fair trial; and (4) the trial court's failure to properly instruct the jury as to the use of that evidence denied him a fair trial.

 III. RIGHT TO A PUBLIC TRIAL

 Morgan contends that the exclusion of members of the general public from the courtroom during the testimony of the juvenile witnesses violated his Sixth Amendment right to a public trial, as applied to the states through the Fourteenth Amendment, Duncan v. Louisiana, 391 U.S. 145, 148, 88 S. Ct. 1444, 1446-47, 20 L. Ed. 2d 491 (1968). Morgan also alleges the courtroom remained closed, not only during the testimony of the juvenile witnesses, but during the testimony of the adult witnesses as well. Morgan contends that he was thereby denied the right to a public trial.

 After the state moved for the exclusion from the courtroom of all disinterested persons, the following discussion took place:

 
THE COURT: Are you talking about the entire trial, or that part of the trial where the juvenile witness would testify?
 
MR. BURNS: It would be for the purpose of the time during which the juvenile witness and witnesses would testify. I would not ask that it be when the police officers or lab assistants testify. For the purpose, the Court may terminate the order and allow spectators, if he wishes, in the courtroom.
 
THE COURT: Very well. Do you wish to respond?
 
MR. CAPRIO [Defense Counsel]: Very briefly, your honor. [The victim] is now 17-years old. She might even be 18 now. But I am sure that she is at least 17, Judge. Secondly, I think we have a right to a public trial. I don't think that the State has indicated or made any showing at all that there is any harm or prejudice going to come to Miss Yates from testifying at a public trial.
 
THE COURT: Oh.
 
MR. CAPRIO: She is not 13, Judge, any more. ...

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