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UNITED STATES EX REL. WILSON v. O'LEARY

March 27, 1989

UNITED STATES OF AMERICA ex rel. HAROLD WILSON, Reg. No. N-24112, Petitioner,
v.
MICHAEL O'LEARY, Warden, Stateville Correctional Center, Defendant



The opinion of the court was delivered by: DUFF

 BRIAN BARNETT DUFF, UNITED STATES DISTRICT JUDGE

 Petitioner Harold Wilson has appealed to this court from a ruling of Magistrate Bucklo denying his petition for a writ of habeas corpus. United States ex rel. Wilson v. O'Leary, 1988 U.S. Dist. LEXIS 14074, No. 87 C 6521, slip op. (N.D. Ill. Dec. 7, 1988). For the reasons set forth below, this court reverses.

 BACKGROUND

 The facts in this case have been fully set forth in an earlier ruling by this court, United States ex rel. Wilson v. O'Leary, 682 F. Supp. 944 (N.D. Ill. 1988), and in the magistrate's ruling. Briefly, Wilson was arrested by Cook County Deputy Sheriff Allen Hudson at the Toast of the Town Tavern after Deborah Carter identified Wilson as having raped her. Hudson did not inform Wilson of his Miranda rights but he did remove him from the tavern and "told him that he was being questioned about an attack that he did upon [a] woman." Tr. 54.

 Outside the Tavern, Wilson was taken into an alley and surrounded by a crowd of people, including Ms. Carter's husband. Some members of the crowd then questioned him about the rape. At some point, Deputy Sheriff Hudson took a gun from Wilson and handed it to one of the other men in the crowd (possibly Mr. Carter). Eventually, Wilson told the men that Anthony Dixon was his partner in the rape.

 Soon thereafter the Chicago police arrived, and transported Wilson to the police station. At the station, he was questioned twice, first by his arresting officer, Officer Dubois, and then by Assistant State's Attorney Gainer. He informed Officer Dubois that Anthony Dixon was involved in the rape. He later confirmed to ASA Gainer that he had told the crowd outside the tavern that Anthony Dixon was the "other guy." Before both interviews he was informed of his Miranda rights and waived them.

 At the subsequent bench trial, the State did not introduce the statements Wilson had made outside the tavern. However, it did introduce the statements Wilson had made to Officer Dubois and to ASA Gainer. It also presented the testimony of Deborah Carter identifying Wilson as having taken part in the rape. The trial court found Wilson guilty of rape, and the Illinois Appellate Court affirmed. People v. Wilson, 124 Ill. App. 3d 831, 80 Ill. Dec. 175, 464 N.E.2d 1158 (1984).

 Wilson subsequently filed a habeas petition with this court on the grounds that the statements he made to Officer Dubois and ASA Gainer should not have been admitted at trial. In an early ruling, this court held that the trial court erred in finding that the questioning outside the tavern was not a coercive custodial interrogation. The court first found that Deputy Sheriff Hudson's conduct in dragging Wilson into an alley with a crowd of hostile private citizens, and handing a gun to one of those citizens while they fired questions at Wilson about the rape, amounted to a government sanctioned interrogation. *fn1" The court also found that, although the state trial court had stated that "physical coercion" did not occur, it was clear from the record (as well as the appellate court's ruling) that the activities of Hudson and the others were at least psychologically and emotionally coercive. The court then held that an evidentiary hearing was needed to determine whether Wilson's statements at the police station were voluntary in light of the incident at the tavern and the surrounding circumstances of the police station questioning.

 The parties subsequently consented to have the evidentiary hearing conducted before Magistrate Bucklo, with a right of appeal to this court. Magistrate Bucklo conducted the hearing, and on the basis of the hearing as well as the state court record, ruled as follows.

 The magistrate first found that Wilson's statement to Officer Dubois was voluntary, and therefore properly admitted at trial, because the questioning at the police station was sufficiently removed in time, place and circumstances from the incident at the tavern to remove the taint of Wilson's statements there. She then found, however, that Wilson's statement to ASA Gainer should not have been admitted at trial because the statement merely confirmed that Wilson had told the men outside the tavern that he was involved with Anthony Dixon in the rape, and was thus a direct fruit of the inadmissible statements. Nevertheless, she held that a habeas writ should not issue because the inadmissible statement was merely duplicative of the admissible one, and was therefore harmless.

 On appeal, Wilson argues that the magistrate erred both in finding the statement to Officer Dubois admissible and in finding that the introduction of the inadmissible statement to ASA Gainer was harmless error. The State, in turn, argues that the ...


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