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UNITED STATES EX REL. BERINGER v. O'GRADY

May 7, 1990

UNITED STATES OF America ex rel. Joseph BERINGER, Petitioner,
v.
James E. O'GRADY, et al., Respondents


Nicholas J. Bua, United States District Judge.


The opinion of the court was delivered by: BUA

NICHOLAS J. BUA, UNITED STATES DISTRICT JUDGE.

 Petitioner Joseph Beringer ("petitioner") was charged with the murder of Joanne Barkauskas in 1981. He was tried and convicted for the murder in 1983, but the Appellate Court of Illinois for the First District reversed his conviction, finding that the prosecution's conduct during the 1983 trial "was so egregious as to deny [petitioner] a fair trial." People v. Beringer, 151 Ill. App. 3d 558, 564, 503 N.E.2d 778, 781 104 Ill. Dec. 916 (1987). Petitioner now argues that the prosecutorial misconduct which occurred during his 1983 trial was intentional. Based on that argument, he claims the State is barred from retrying him under the double jeopardy analysis set forth in Oregon v. Kennedy, 456 U.S. 667, 72 L. Ed. 2d 416, 102 S. Ct. 2083 (1982). The Illinois courts have rejected petitioner's double jeopardy argument, so he filed this case seeking a writ of habeas corpus pursuant to 28 U.S.C. ยง 2254. Specifically, petitioner seeks an order releasing him from state custody and barring the State of Illinois from reprosecuting him for the 1981 murder charges. For the reasons stated herein, the petition for a writ of habeas corpus is denied. *fn1"

 FACTS

 On July 16, 1981, Joanne Barkauskas ("Joanne") was shot to death. She was walking to a bus stop on her way to work when she was shot in the back and killed in the vicinity of 42nd and Artesian in Chicago, Illinois. Four individuals were charged with the murder: petitioner; petitioner's brother, Kenneth Beringer ("Kenny"); petitioner's and Kenny's roommate, James Galason ("Galason"); and the victim's husband, Edward Barkauskas ("Ed"). Galason pled guilty and testified for the State at the trial of petitioner and his brother. *fn2" At that trial, Galason stated that Ed approached him in the early part of July 1981 and asked him if he would kill Ed's wife, Joanne, in return for some of the insurance proceeds. Galason agreed to perform the murder. According to Galason, Ed had separately asked Kenny to commit the murder, and Ed had given Kenny a photograph of Joanne so that Kenny could identify her. Galason testified that during the first two weeks of July 1981, on various occasions he discussed committing Joanne's murder with petitioner, Kenny, and Ed.

 Galason's testimony concerning the murder was as follows. On the morning of July 16, 1981, Galason and petitioner were picked up by Ed. Ed drove them to a maroon Camaro which petitioner and Kenny had stolen the night before for the purpose of using it as a getaway car. Petitioner and Galason entered the Camaro with the shotgun which Galason had obtained for the shooting. Galason drove the Camaro to the area near 42nd and Artesian. Ed had told Galason and petitioner that Joanne would pass by that area around 8:00am. For a short time, Galason and petitioner waited in the Camaro for Joanne to pass by. Petitioner then exited the car with the shotgun and continued waiting behind a garage in an alley, while Galason remained in the car. When Joanne finally appeared, petitioner jumped out from behind the garage, shot her twice in the back, and returned to the car. Galason then drove the car a short distance to a dead end street, where he and petitioner wiped their fingerprints off the car, exited the car, and hid the shotgun in the brush surrounding some nearby railroad tracks. Galason and petitioner then decided to split up and flee from the area. However, a policeman who had received a call regarding the shooting spotted Galason and petitioner as the two were walking down the street. When Galason began to run, the policeman chased Galason all the way back to his apartment, where he was arrested a short time later along with Kenny. Petitioner was arrested the next day.

 A review of the trial record reveals that the State presented a great deal of evidence which corroborated much of Galason's story. A man named John Brender, who lived on the street where the Camaro had been abandoned, testified that he saw two men park and exit the Camaro at approximately 8:00am on July 16, 1981. Brender stated that he was letting his dog out of the house when he saw one man get out of the passenger side carrying "something wrapped up" which looked like a rifle. Brender identified Galason as the man he saw get out of the driver's side and petitioner as the man who exited the passenger side with the rifle.

 Chicago Police Officer John Rossi testified that he recovered the shotgun used in the murder from the weeds where Galason had stated that he and petitioner had stashed it. The shotgun was introduced as evidence. Chicago Police Officer Robert Dieringer testified that Kenny's fingerprints were found in the Camaro. The fingerprints were offered as evidence. Another officer, Thomas Ptak, testified that after his arrest Kenny admitted to possessing a photograph of Joanne and hiding it in the sofa in his apartment. Officer Ptak stated that he later recovered the photo from the sofa; the photo was introduced as evidence. Finally, Assistant State's Attorney Michael Levitin told the jury of a statement Kenny gave to the police officers shortly after his arrest, and Assistant State's Attorney Paul Kerpan read into evidence the signed statement which petitioner gave to law enforcement officials following his arrest. In those statements, petitioner's and Kenny's accounts of the incidents surrounding the murder were substantially similar to the story told by Galason on the witness stand. In his statement, petitioner specifically admitted that he was the one who shot Joanne and that Galason drove the Camaro.

 At the conclusion of the State's case, the first evidence offered by the defense was the testimony of Harvey Webb, who was the only eyewitness to the murder. Prior to trial, both the prosecution and the defense had informed the trial judge that they had experienced difficulty in locating Webb. At that time, petitioner's attorneys stated their belief that the prosecutors had been intentionally concealing Webb from the defense and attempting to prevent him from testifying. Webb was eventually brought into court to testify, but only after the judge issued a warrant for his arrest pursuant to the requests of the defense.

 Webb testified that he used to see Joanne virtually every morning near the corner of 42nd and Artesian. Webb stated that he would pass by Joanne as he was walking to his job at a car wash; she was apparently on her way to a bus stop. Webb testified that as he was walking to work on the morning of July 16, 1981, he saw a man with a shotgun exit the passenger side of a maroon Camaro. The man fired two shots at Joanne and got back into the car. Another person then drove the car away. According to Webb, the man he saw fire the shots was approximately six feet tall with long blond hair -- a description roughly matching the appearance of Galason. Webb stated that prior to trial, he identified Galason as the shooter from a picture of Galason shown to him by state prosecutors. Webb testified that when he identified Galason, however, the prosecutors told him, "that['s] not the guy." Webb further testified that petitioner was not the man he saw do the shooting.

 On cross-examination, the prosecution tried to impeach Webb by suggesting that he had solicited money from prosecutors in exchange for his testimony, that he had used drugs before he spoke to the State's Attorney's office, and that he felt the police had caused him to lose his job. Specifically, the prosecution cross-examined Webb as follows:

 
Q: Didn't you call me and tell me you were locked up on a disorderly?
 
A: No, sir.
 
Q: And you wanted me to get you out of jail?
 
A: No, sir.
 
Q: Didn't you tell me that?
 
A: No, sir.
 
Q: And that you would come into this court if I paid you money, didn't you tell me that?
 
A: No, sir.
 
MR. STAMOS [Kenny's attorney]: If I may make an objection, inserting himself in this case as a witness. It is improper for him to be asking these forms of questions, get on the stand and testify.
 
THE COURT: You will have to perfect your impeachment.
 
MR. WADAS [State's attorney]: I understand that.
 
Q: Didn't you tell me, Mr. Webb, if I scratch your back you will scratch my back, didn't you tell me that?
 
A: No, sir.
 
* * * *
 
Q: How much did you have to drink before you came to our ...

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