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September 19, 1990

JAMES H. THIERET, Warden, Respondent

Milton I. Shadur, United States District Judge.

The opinion of the court was delivered by: SHADUR


 This long-lived 28 U.S.C. ยง 2254 ("Section 2254") petition for habeas corpus relief sought by Homer Hanrahan ("Homer") is back before this Court on remand from our Court of Appeals. That court's "Opinion II" (896 F.2d 241 (7th Cir. 1990)) affirmed this Court's "Opinion I" (695 F. Supp. 372 (N.D. Ill. 1988)) in all respects save the open issue of whether the state court's erroneous admission of statements of Homer's son and codefendant Michael Hanrahan ("Michael") amounted to harmless error. *fn1" For the reasons stated in this memorandum opinion and order, this Court holds that those errors were not harmless and that Homer is entitled to a new trial without constitutional infirmities.


 Homer and his son Michael were jointly charged with conspiracy, aggravated kidnapping, aggravated battery and murder stemming from the death of Homer's estranged wife (and Michael's mother) Marian Hanrahan ("Marian"). After a joint trial the jury convicted Homer of all the charges, and he was sentenced to concurrent sentences of 50 to 100 years for murder, 20 to 40 years for aggravated kidnapping and 3 to 10 years for aggravated battery. *fn2" Michael was convicted of all charges except murder and was given concurrent sentences of 10 to 25 years for aggravated kidnapping and 3 to 10 years for aggravated battery (see n. 1). Their convictions were affirmed by the Appellate Court ( People v. Hanrahan, 64 Ill. App. 3d 207, 380 N.E.2d 1075, 20 Ill. Dec. 866 (1st Dist. 1978)), the Illinois Supreme Court denied leave to appeal ( People v. Hanrahan, 72 Ill. 2d 583 (1979)) and the United States Supreme Court denied certiorari (444 U.S. 828, 100 S. Ct. 53, 62 L. Ed. 2d 36 (1979)).

 On August 23, 1988 this Court issued Opinion I denying Homer's petition for habeas corpus. Among other things Opinion I held that:

1. the trial court violated Homer's Sixth Amendment *fn3" rights under Bruton v. United States, 391 U.S. 123, 20 L. Ed. 2d 476, 88 S. Ct. 1620 (1968) when it admitted into evidence certain statements by Michael, where Michael did not testify and was not subject to cross-examination by Homer's counsel as to those statements; but
2. it was harmless error to admit into evidence the one statement that Homer's attorney had urged in the briefs as having prejudiced Homer in the trial.

 Opinion II then upheld this Court on the existence of the Bruton violation and on all non-Bruton issues dealt with in Opinion I, but it found that Homer's petition had preserved for review complaints relating to several Bruton-violative statements in addition to the one that the parties stressed in their briefs. Accordingly the case was remanded for the sole purpose of enabling this Court to determine whether the admission of all of Michael's statements, when considered in their totality, still constituted harmless error. *fn4"

 That kind of evaluation requires a review of the relevant facts. And although this case has already been kicking around the Illinois and federal court systems long enough to have occupied a fair amount of law library shelf space, the very nature of the harmless error determination unfortunately makes unavoidable a good deal of repetition of what has gone before. To minimize duplicative effort, this opinion will borrow unabashedly from the Illinois Appellate Court opinion's statement of facts ( People v. Hanrahan, 64 Ill.App.3d at 208-13, 380 N.E.2d at 1077-80) for substantial portions of the following statement. *fn5"

 At trial the jury heard three kinds of evidence:

1. circumstantial evidence in the form of (a) testimony of Mary Ellen Hanrahan ("Mary Ellen") -- the daughter of Homer and Marian -- about what she heard on the night of Marian's death that caused her to go to the police, (b) testimony of investigating officers about the physical evidence recovered at the scene and with the body and (c) testimony by the coroner as to the causes and circumstances of death;
2. Homer's own descriptions -- both to police and at trial -- of the events leading to Marian's death; and
3. Michael's statements to police about those same events.

 Because it is necessary to decide whether admission of the third kind of evidence -- Michael's statements -- was harmless error in light of the strength of the other two kinds, it will be useful to set out each category separately.

 1. Circumstantial Evidence.

 Police investigators and Mary Ellen testified that it was Mary Ellen who first alerted police to suspected foul play by Homer and Michael against Marian:

At approximately midnight on November 22, 1974, Mary Ellen Hanrahan, age 16, went to the Niles Police Station to express worry about her mother, Marian Hanrahan. She related that when she arrived home at 9:30 p.m. on November 20, she was met at the door by her father, defendant Homer Hanrahan. She indicated that it was unusual for him to be there since divorce proceedings were pending between him and her mother and further, because he was no longer living at the home. She noticed blood on his arm and chest which he explained was the result of a fight between the deceased and her brother, defendant Michael, but that everything was not settled.
Defendant Homer instructed her to go upstairs to her room, which she did. Once there, however, she listened at an air vent that led to the basement. She stated that she heard the deceased scream and that she heard her mother moan, "It hurts, it hurts."
A short time later, Mary Ellen heard her uncle, Jerry Wallenberg, bringing her brother Steve home from a birthday party. Defendant Michael opened the door for them. Mary Ellen stated that Michael was wearing only his undershorts and that they too, had blood on them. When Mary Ellen inquired what was wrong, defendant Michael told her that the deceased threatened him and that he hit her in the face. He further informed her that she could not see her because defendant Homer was in the basement talking to her. Thereafter Mary Ellen returned to her room and fell asleep.
The next morning, at approximately 7 a.m., Mary Ellen was awakened by the sound of her brother, defendant Michael Hanrahan, leaving for school. A short time later, defendant Homer Hanrahan came into her room to tell her to get ready for school. When Mary Ellen asked to see the deceased, defendant assured her that everything was all right and that her mother was still sleeping. Mary Ellen then left for school and when she returned, at approximately 2:15 p.m., she found a note from her father, stating that he and the deceased went on a trip and would return in a few days. Because it was unlike the deceased to leave without saying goodbye and because it was unusual for defendant Homer to spend the night at the house, Mary Ellen went to the police station later that night and related the above facts.
Following this conversation, the police officers accompanied Mary Ellen to her home. In the basement they discovered blood and observed that the floor had been freshly mopped. They also found a blood stained mattress pad on Marian Hanrahan's bed and noticed that the sheets and covers were missing. Mary Ellen checked her mother's closet and found that none of her clothes were missing.

 Later that day police officers arrested Michael at the fraternity house where he was living. He was taken to the Niles Police Station, where he gave the statements described in more detail below. Those statements led police to the home of Homer's girlfriend Roberta Stiles ("Stiles") and caused them to suspect that Marian might be found in the trunk of Homer's car. When police found Homer's car at Stiles' house and opened the trunk, they found Marian's naked dead body inside. Along with the body police found Marian's purse, some hypodermic syringes, various drugs, a drug salesman's sample kit with empty slots (Homer had been a drug salesman for Wyeth Labs), a bottle labelled chloroform, a paper towel shaped into a cup and a suitcase that contained a hunting knife, boxes with medication labels and a vibrator (R.347, 399, 282-84). In addition to the automobile trunk contents, other physical evidence admitted at trial included two pistols that were in Stiles' home (one of which had traces of blood on the butt), sheets, towels and a blanket discovered in Stiles' basement, an attache case from the back seat of Homer's car and bloodstained clothing belonging to Michael and Homer.

 According to the testimony of the coroner and a toxicologist who ran tests on Marian's body, the cause of death was acute morphine intoxication (R. 546). Numerous bruises were evident on the side, shoulder and head, but those were at most a secondary contributing cause of death (R.572-79) -- no bleeding had resulted and the skull had not been fractured (R.565-66). Tests of Marian's blood, urine and bile showed a toxic level of morphine along with non-lethal doses of a tranquilizer and barbiturates, a small amount of alcohol and a trace amount of chloroform (R.667-69). Only one of the drugs police recovered could have been the source of the morphine that killed Marian: the cough medicine Phenergan containing codeine. If that were the only source, however, the experts testified that Marian would have had to ingest 5 to 10 of the little bottles the police found.

 2. Homer's Statements.

 After his arrest, Homer was questioned by Assistant State's Attorneys Pappas and DiVito. DiVito testified at trial that Homer told him, "Blame it all on me. I did it, my son was not involved." He also told police that Michael had hit Marian in the head with a gun after she produced a knife, and he told police where they could find the gun, blankets, towels, bandages and the deceased's clothing. He also admitted to them that he had injected Sparine into Marian's buttocks and explained that he had gained a familiarity with drugs through his previous employment as a drug salesman. DiVito testified that Homer then requested an attorney and the interview ended.

 In addition to hearing DiVito's retelling of Homer's story, the jury heard from Homer himself:

At the opening of the defendants' case, defendant Homer Hanrahan testified in his own behalf. He testified that on November 20, 1974, he met defendant Michael at a restaurant at 7:45 p.m., prior to a prearranged meeting with the deceased. The purpose of the meeting with the deceased was to work out a property settlement in their pending divorce. He stated that he wanted to get the deceased away from the influence of her parents while working out the settlement.
On his way to the deceased's house, he stopped at a liquor store to cash a check and purchase beer. He stated that when he arrived at the deceased's house, he noted that her eyes and walk appeared "funny." The deceased was an epileptic and occasionally had seizures. The seizures were never severe, but on occasion, defendant Homer had to inject her with Sparine in order to calm her.
Defendant Homer and the deceased proceeded to the basement where they began sorting certain bills that he had paid and believed should be credited towards his child support payments. He testified that during this time the deceased began yelling and screaming incoherently and then collapsed to the floor. When he tried to pick her up, she produced a knife. A struggle ensued, during which two tables were overturned and he received a cut on his hand. At this point defendant Michael entered the basement and attempted to separate them. The deceased kicked Michael and then bumped her head on a post, ...

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