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February 28, 1989


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 sentenced.

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.

(A) Facts

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 trafficking.

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.

Alaina testified, conversely, that after Petitioner yanked her car door open, he pointed a gun at her head and began pulling her from her car, demanding that she come with him. Alaina asked Petitioner for identification, and he showed her his identification card from the correctional center. Alaina claims Petitioner placed the gun in her mouth and threatened to kill her when she tried to escape; she struggled and broke loose as two cars pulled into the tavern parking lot.

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 following colloquy:

    [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, ...

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