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UNITED STATES EX REL. COLE v. GRAMLEY

November 7, 1990

UNITED STATES OF AMERICA ex rel. KENNETH COLE, Petitioner,
v.
RICHARD GRAMLEY, Warden, and MICHAEL LANE, Director, Respondents


Milton I. Shadur, United States District Judge.


The opinion of the court was delivered by: SHADUR

MILTON I. SHADUR, UNITED STATES DISTRICT JUDGE

 Kenneth Cole ("Cole") was convicted in the Circuit Court of Cook County of murder and armed violence (based on the same occurrence). After Cole was sentenced to 28 years in prison for those crimes, both his conviction and sentence were affirmed by the Illinois Appellate Court ( People v. Cole, 170 Ill. App. 3d 912, 524 N.E.2d 926, 120 Ill. Dec. 744 (1st Dist. 1988)), and his petition for leave to appeal to the Illinois Supreme Court was then denied.

 Cole is before this Court on his 28 U.S.C. § 2254 ("Section 2254") petition (the "Petition"), brought against Dixon Correctional Center Warden Richard Gramley and Illinois Department of Corrections Director Michael Lane ("Respondents"). Each side has moved for summary judgment. For the reasons stated in this opinion, Respondents' motion for summary judgment is granted and Cole's Petition for habeas corpus is dismissed.

 Facts1

 Between 12:15 and 12:20 p.m. on October 21, 1983 Karen Matthews ("Matthews") was shot and killed in an Amoco gas station lot on the northwest corner of the intersection of 75th Street and Stony Island Avenue on the south side of Chicago. It is that killing that ultimately led to Cole's conviction.

 At about 12:15 p.m. on that day three women were in a car facing eastbound on 75th Street waiting for the light to change at the intersection. Two of the women, Linda Eichelberger ("Eichelberger") and Bonnie Johnson ("Johnson"), testified at trial that they heard a gunshot. Both looked to their left across 75th Street to see Matthews about 20 or 25 feet from them screaming that she had been shot. Matthews was then standing next to the open front door on the passenger side of a blue and white Cadillac Seville. Matthews collapsed and the driver of the Cadillac reached over, closed the passenger door, backed the car up and drove down an alley behind the Amoco station.

 Both Eichelberger and Johnson testified that they had seen the full face of the driver and that he was wearing a white or light-colored hat. Eichelberger made a courtroom identification of Cole as the driver of the Cadillac. She also identified Cole's hat that had been placed in evidence as the one she saw on the day of the murder, although she admitted that she did not recognize some of the detail on the hat. In connection with Eichelberger's testimony, the parties entered into a stipulation that Detective Henry Sigler ("Sigler") had spoken with her following the murder and that she had not then described the offender by height or weight and had not described any hat.

 Dawn Morgan ("Morgan") was the Amoco station cashier that morning. Morgan had seen Cole with the Cadillac at the Amoco station on two or three occasions before the day of the murder. She testified to substantially the same events as Eichelberger and Johnson, and like Eichelberger she made a courtroom identification of Cole as the driver of the Cadillac. In addition, she said that she saw Cole wearing a white baseball cap that day and that she had never lost sight of him during the course of events. Importantly, besides her in-court identification Morgan had identified Cole at a police line-up on the day after the murder.

 Arthur Stovall ("Stovall"), an employee at the Popeye's Chicken restaurant located next to the Amoco station, was also an eyewitness to the crime. Shortly after noon on the day of the murder Stovall was walking across the lot of the Amoco station to a nearby hardware store. He saw the Cadillac parked next to a pay phone with its motor running, and he saw Matthews talking on the phone. He began to exchange greetings with Matthews when he noticed that she "got kind of scared" (R. 465), and he turned to see a man, whom he later identified as Cole, wearing a white baseball cap and walking in Matthews' direction from across 75th Street. Cole told Matthews to get in the car. Stovall started to walk away when he heard a gunshot, and he turned around to see Cole back up the Cadillac and drive down an alley. Like Morgan, Stovall identified Cole at a police line-up the next day. On cross-examination Stovall admitted to a 1978 armed robbery conviction.

 Chicago Police Department Detective Charles Salvatore ("Salvatore") testified that he called Stovall later on the day of the murder and that Stovall had stated that the assailant had gotten out of a taxicab, that he was a light-skinned black male with curly hair, 5'7" tall and weighing 135 pounds (a description that did not fit Cole) and that the assailant had not worn a hat. At trial Stovall denied giving such a description to Salvatore.

 Fannie Glenn ("Glenn"), an eyewitness called by the defense, testified to a different set of facts. At about 12:15 p.m. on the day of the murder she was walking west on Stony Island Avenue with her granddaughter when they were nearly struck by a speeding car containing two males and a female. After turning on 75th Street and making a U-turn, the car pulled up to the Amoco station. Glenn heard a gunshot and saw Matthews fall out of the car and scream while the car was still in motion. Glenn testified that the driver of the car had a darker complexion than Cole. On cross-examination Glenn described the car only in terms of its being dark-colored, either black or navy blue. She said that the police who arrived on the scene allowed her to tell only a little about what she had seen, but she acknowledged that she had not called the police afterward about the incident. When the police called her the next month (November 1983) to show her photographs, she told them she would not be able to identify anyone.

 Three alibi witnesses testified on Cole's behalf. His mother Mary Cole testified that at noon the day of the murder she called her son from a pay phone at her beauty salon and spoke to him about a family event to take place that night. Carolyn Smith, a second witness and a friend of Cole's, testified that she spoke with Cole between 1:00 and 1:15 p.m. on the day of the murder when he came into the Foremost Liquor store at 1529 Hyde Park Avenue, where she worked as a lottery ticket cashier. Finally, Matthews' roommate Seneca Boxton ("Boxton") testified that she last saw Matthews at their apartment in the evening before the day of the murder, when Matthews left to spend the night with Cole. Later that evening Boxton also left the apartment to spend the night with her boyfriend in a hotel. She testified that between 12:10 and 12:15 p.m. on the day of the murder she called Cole from the hotel room, trying to locate Matthews, and spoke to Cole for three or four minutes. On cross-examination Boxton said she was a friend of Cole's and had seen him twice since the murder.

 Another witness, Chicago Police Department chemist Mary Grobarcik ("Grobarcik"), was qualified by the trial court as an expert over defense objection. Grobarcik gave opinion testimony, based upon her analysis of a gunshot residue test performed on swabbings of Cole's hands shortly after he was arrested in the afternoon following the murder, that in her opinion Cole had fired a handgun within four to six hours of his arrest. Edward Rudzitis was called as a defense expert to rebut her testimony. He testified that in his opinion the levels of antimony and barium found on Cole's hands were not conclusive as to whether Cole had fired a gun.

 
1. He was denied his Fourth *fn2" and Fourteenth Amendment rights when he was arrested without probable cause and when he was not afforded a full and fair hearing on his Fourth Amendment claims by the state court.
 
2. He was denied his Fifth, *fn3" Sixth and Fourteenth Amendment rights to due process, to compulsory process and to confront witnesses when the prosecutor (a) released a police witness who had been subpoenaed by the defense and (b) did not notify the defense or the court that the witness would not be available for trial.

 Fourth Amendment Claim

 For any successful invocation of the Fourth Amendment, Cole must overcome the hurdle set out in Stone v. Powell, 428 U.S. 465, 481-82, 49 L. Ed. 2d 1067, 96 S. Ct. 3037 (1976) (footnote omitted):

 
We hold, therefore, that where the State has provided an opportunity for full and fair litigation of a Fourth Amendment claim, the Constitution does not require that a state prisoner be granted federal habeas corpus relief on the ground that evidence obtained in an unconstitutional search or seizure was introduced at his trial.

 Cole argues that he was denied such a "full and fair" opportunity by the Appellate Court's consideration of evidence adduced at trial as part of its basis for finding that probable cause had existed to arrest him. To consider the merits of that ...


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