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UNITED STATES EX REL. WHITE v. LANE

February 18, 1992

UNITED STATES OF AMERICA ex rel. DERRICK WHITE, Petitioner,
v.
MICHAEL P. LANE and NEIL F. HARTIGAN, Respondents.



The opinion of the court was delivered by: BRIAN BARNETT DUFF

MEMORANDUM OPINION

 Petitioner, Derrick White, is currently serving a 27 year sentence for murder. He was convicted of the murder of Edward Sanders who was fatally shot on January 31, 1981, while riding as a passenger in a taxicab. White seeks habeas corpus relief under 28 U.S.C. § 2254 and petitions the court to review the constitutionality of his conviction.

 Background

 Following a 1986 jury trial in the circuit court of Cook County, Illinois, White was found guilty of murder. His motions for a mistrial and a new trial were denied by the trial court.

 White then appealed to the Illinois Appellate Court. In his appeal, White made three arguments in favor of reversal. First, White argued that it was reversible error for the trial court to have admitted the prior inconsistent statements of his former girlfriend (Joan Gilbert). According to White, the State called Gilbert as a witness only to introduce prior hearsay statements under the pretense of impeachment. Second, White argued that the prosecutor made an impermissible allusion to White's failure to testify. Finally, White argued on appeal that he was not proven guilty of murder beyond a reasonable doubt.

 The Illinois Appellate Court for the First Division reversed and remanded to the trial court for a new trial on the grounds that the trial court had committed reversible error by admitting the prior inconsistent statements of Joan Gilbert. Before reaching the issue, the Court first had to grapple with the State's argument that White had waived this issue by his failure to raise it in his motion for a new trial. White claimed that by making a timely objection at trial, he preserved the issue for appeal.

 The Illinois Appellate Court agreed with White that he successfully preserved the issue on appeal. It wrote:

 The general rule is that if a defendant fails to raise an alleged error in his written motion for a new trial, the alleged error is waived and will not be considered as being properly before the court for review. ( People v. Pickett (1973), 54 Ill. 2d 280, 283, 296 N.E.2d 856; People v. Precup (1978), 73 Ill. 2d 7, 16, 382 N.E.2d 227, 21 Ill. Dec. 863 .) However, the defendant's timely objection during the trial to the State's attempt to introduce Gilbert's prior hearsay statements was sufficient to allow the trial judge to consider the issue, thereby satisfying the purpose of the post-trial motion rule. ( People v. Moody (1979), 75 Ill. App. 3d 674, 682, 394 N.E.2d 643, 31 Ill. Dec. 441 ; People v. Norris (1972)), 8 Ill. App. 3d 931, 935, 291 N.E.2d 184.) Therefore, this issue is preserved for appeal.

 People v. White, No. 86-1612, slip op. at 7 (Ill. App. 1st Dist. April 25, 1988) ("White I").

 The appellate court then reviewed the State's attempt to elicit testimony, over defense objection, *fn1" regarding a conversation Gilbert allegedly had with defendant White. According to the appellate court, Gilbert's prior inconsistent statements were read into the record twice, once during the direct examination of Gilbert and once during the direct examination of a police detective (Detective McGuire). The appellate court opinion summarized Gilbert's and McGuire's testimony as follows:

 Joan Gilbert testified that on January 31, 1981, she was the defendant's girlfriend. However, she did not see the defendant on that date, but did see him on February 1, 1981, at the police station when police officers came to her home at 6656 South Stewart in Chicago and took her to the police station for questioning. Gilbert denied making any statements to any police officers or the assistant State's Attorney at the police station. Gilbert also testified that she was interviewed by an assistant State's Attorney and a policeman about a month before the trial. They read to her statements in a police report that she allegedly made in 1981, and she told them that she had not made those statements. She stated that on her way to the police station the only thing she said to the police was that she 'wasn't aware of anything that had happened.' The State attempted to impeach Gilbert with evidence of her prior statements to the police.

 She further testified that an assistant State's Attorney told her that she could be charged with perjury if she did not admit to making the 1981 statement.

 Detective McGuire testified that he was present when the assistant State's Attorney interviewed Gilbert and she was not threatened with a perjury charge. McGuire further testified that Gilbert made the statements to him regarding the offense that she denied making during her testimony. However, he did testify that he was aware that Gilbert had denied making the prior statements before trial.

 White I, at 5-6.

 The court then quoted the prosecutor's questioning of Gilbert regarding her alleged prior inconsistent statements:

 Q: Do you recall telling the detectives that Derrick White and Drake Hudsell came to the apartment about 1:30 in the morning on January 31, 1981?

 A: No, I did not.

 Q: Did you tell the police officers that when Derrick and Binkie arrived at your home, Derrick gave you a gun and told you that he had done something wrong?

 A: No.

 Q: You did not say that?

 A: No, I didn't.

 Q: Did you tell the police officers at your house, at that time, that Detective Flood and McGuire, that Derrick told you to keep the gun, that he had to leave.

 A: No.

 Q: Did you tell the police officers that Derrick left at the time with Drake Hudsell and he returned about 10:30 or--strike that--about 5:30 the next morning?

 A: No.

 Q: Did you also tell the police officers that when Derrick White came back about 5:30 in the morning, he remained at your apartment until about 10:30 in the morning?

 A: No.

 Q: Did you tell the police officers, Detective Flood and McGuire, that while at the apartment at this time, the defendant, Derrick White, told you that he had shot ...


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