The opinion of the court was delivered by: Richard Mills, District Judge: Habeas Corpus. Writ to issue.
Michael T. Smith has petitioned this Court — pursuant to
28 U.S.C. § 2254 — to issue a writ of Habeas Corpus ordering
Respondents to free him from the custody of the fine,
restitution, costs and probation to which Petitioner was
Petitioner claims that during cross-examination of
Petitioner, the prosecutor violated the rule of Doyle v. Ohio,
426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976), and thereby
violated his constitutional rights.
For the following reasons, the petition must be allowed.
The state has asked this Court to rely entirely upon the
Illinois appellate court's version of the facts in ruling upon
this request, citing United States ex rel. Green v. Greer,
667 F.2d 585 (7th Cir. 1981). Indeed, 28 U.S.C. § 2254(d) requires
that this Court presume that the state court's fact-findings
are correct (unless, for instance, this Court determines upon
examining the record that the state court's version is not
supported by the record. § 2254(d)(8)). The parties have not
submitted the entire record, although Petitioner cites in his
memorandum to segments of the record which are at odds with
some of the broad statements made in the appellate court's
opinion. But no matter — this Court has given the appellate
court opinion the full benefit of the statutory presumption.
The following facts are therefore culled entirely from the
state appellate court opinion affirming Petitioner's
conviction. People v. Smith, 157 Ill. App.3d 465, 109 Ill.Dec.
647, 510 N.E.2d 515 (4th Dist. 1987).
The Petitioner and Alaina Turnbaugh, the "victim," met up one
night in December of 1985 in the parking lot of a Jacksonville,
Illinois, tavern. Petitioner, a correctional officer at a
nearby correctional facility, knew Alaina as the girlfriend of
a fellow guard. Petitioner saw Alaina as she sat in her car
with the dome light on. He approached her car, yanked open the
door, and told Alaina that she was under arrest for drug
Petitioner and Alaina tell different stories from this point.
Petitioner claims that his motive in pulling open the door was
merely to pull a prank. He claims that Alaina over-reacted to
his practical joke, lost her temper and attacked him.
Petitioner denies having been armed during the incident, and
also denies ever having struck Alaina. Instead, he claims that
as she attacked him, Alaina slipped and fell, and as he helped
her to her feet her blouse ripped.
Whichever of these versions is closer to the truth, the
remainder of the story is uncontradicted. Alaina called the
police from the tavern. When they arrived, they noted that her
nose and mouth were bleeding and her blouse was torn; she was
also crying and upset. The drivers of the two cars which pulled
into the lot "testified to witnessing the struggle," 157 Ill.
App.3d at 470, 109 Ill.Dec. at 650, 510 N.E.2d at 518 (the
appellate court opinion does not indicate that either witness
could identify the aggressor in the struggle, nor whether
either witness saw the beginning of the fight). The next day
the police took Alaina to the correctional facility where
Petitioner worked. She identified Petitioner as her attacker
from his employee identification card. A warrant was then
issued for Petitioner's arrest, and a search warrant was issued
for his home and car.
Petitioner was arrested and given his Miranda warnings while
at work. As he was being escorted to the waiting squad car, one
officer asked if Petitioner understood the charges. Petitioner
answered that "it was a situation that got out of hand." He was
then asked if he knew the "victim," and he answered, "she was a
girlfriend of Marty Savage, another guard." The police then
told Petitioner of the search warrant; he responded that no
evidence was to be found in his car, but he told the officers
where they might find his gun and the clothes he wore the night
of the incident.
Petitioner was charged with intimidation (Ill.Rev.Stat. ch.
38, ¶ 12-6(a)(1) (1985)), unlawful restraint (Ill.Rev.Stat. ch.
38, ¶ 10-3(a) (1985)), and two counts of armed violence
(Ill.Rev.Stat. ch. 38, ¶ 33A-2 (1985)).
At trial, Petitioner took the stand in his own defense, where
he first related his version of the incident as set out above.
On cross-examination, the prosecutor engaged Petitioner in the
[PROSECUTOR]: Is it true that you told the
police officers when you got arrested that it got
out of hand, the situation, right?
[PROSECUTOR]: They didn't mention Alaina's name
at that time, did they? You just assumed that, ...