The opinion of the court was delivered by: WILLIAM T. HART
Roger Collins and William Bracy
were found guilty of armed robbery, aggravated kidnapping, and the murders of Frederick Lacey, R.C. Pettigrew, and Richard Holliman in a joint, jury trial in the Circuit Court of Cook County, Illinois. The offenses were committed in 1980. Following a two-staged sentencing hearing, Collins and Bracy were both sentenced to death on the murder convictions. Each was also sentenced to concurrent terms of 60 years' incarceration on the armed robbery and aggravated kidnapping charges. On appeal, the kidnapping sentences were each reduced to 30 years. All the convictions were affirmed as were the sentences of death. People v. Collins, 106 Ill. 2d 237, 478 N.E.2d 267, 87 Ill. Dec. 910 ("Collins I"), cert. denied, 474 U.S. 935 (1985). Post-conviction relief was denied by the trial court and that denial was affirmed. People v. Collins, 153 Ill. 2d 130, 606 N.E.2d 1137, 180 Ill. Dec. 60 (1992) ("Collins II") cert. denied, 113 S. Ct. 2355, 2356 (1993). Collins and Bracy then filed separate federal habeas corpus petitions raising a number of claims. The two cases were consolidated. Presently pending are respondents' motions to deny the two petitions.
II. EXHAUSTION, WAIVER AND DEFAULT
III. GROUNDS ASSERTED FOR RELIEF
A. Exclusion of African-Americans from Jury
B. Nellum's Testimony - Discovery and a Hearing
C. Prosecutorial Misconduct
3. During Presentation of Evidence
5. Sentencing Phase Arguments
D. Sufficiency of Evidence
F. A Judge's Wife on Jury - Discovery and a Hearing
G. Ineffective Assistance of Counsel
H. Death Qualified Jurors
I. Denial of Continuance for Sentencing Hearing
J. Death Penalty Instructions
K. Death Penalty Statute Unconstitutional
L. Trial by Judges who accepted Bribes, Discovery
M. Fabricated Rope Evidence
O. Nowell Impeachment Evidence
P. Brady Claim Related to Nellum
Q. Punishment Alternatives and Dangerousness
R. Involuntary Confession
S. Impeachment with Silence
T. Loss of the Common Law Record
Collins I summarizes the facts:
On November 12, 1980, sometime after 10 p.m., Frederick Lacey, R.D. Pettigrew and Richard Holliman were taken from apartment 206 at 2240 South State Street in Chicago, placed in a red Oldsmobile, and driven to a viaduct at Roosevelt Road and Clark Street, where they were shot to death. Police officers investigating at the scene found Lacey lying on the ground on the driver's side of the automobile. Pettigrew was lying partially under the right front bumper with pieces of rope and cloth tied around his right wrists. Three expended shotgun shells were found near his body. Holliman was discovered in the back seat, his hands bound with cloth. The record shows that Lacey had been shot in the back of the head. Pettigrew, in addition to being shot in the face, chest and leg, had four shotgun wounds in his back. Holliman had been shot three times in the chest and once in the back of the neck.
The chief prosecution witness was Morris Nellum, who admittedly took part in the crimes. To secure his testimony, the State agreed to recommend a sentence of three years in protective custody in exchange for Nellum's guilty plea to three counts of concealing a homicidal death. The State also agreed to relocate his family.
As to the events which occurred on the night of November 12, 1980, Nellum testified as follows. He was with his girlfriend, Regina Parker, at her apartment at 2222 South State Street. At approximately 9:30 p.m., Collins came to the apartment and asked him to go to apartment 206 at 2240 South State, saying he had something he wanted Nellum to take care of. Nellum went to that location, arriving approximately 10 minutes later. In one of the bedrooms he observed Collins, Bracey, Hooper, and three men he did not recognize. Two of the men, later identified as Pettigrew and Holliman, were on the bed with their hands bound. The third, later identified as Lacey, was standing at the side of the bed. Collins asked Nellum to drive his (Collins') brown Cadillac to Roosevelt Road and Clark Street because "[Collins] was going to drop some people off, leave them tied up and he wanted me to pick him up. " Nellum took Collins' keys and went to the parking lot outside the building where Collins' Cadillac was parked. He observed Collins, wearing a wide-brim hat, Bracey, Hooper, and the three victims emerge from the building and walk to the red Oldsmobile. The three victims were placed in the rear seat; Collins and Hooper got in the front seat, with Collins driving. Bracey meanwhile went to his own automobile, which was parked nearby. After the two vehicles departed, Nellum waited a few minutes as instructed, and then followed. As he approached the viaduct at Roosevelt Road and Clark Street, he heard a series of shots. Immediately thereafter, he saw Bracey, carrying a sawed-off shotgun, and Hooper run to Bracey's automobile. Collins got in his own car alongside Nellum. As they sped from the scene, Collins said: "That damn Hooper. I told him to wait until--I wanted to use the shotgun because they can't trace the shotgun, but he used the gun instead." According to Nellum, the two vehicles returned to the parking lot at 2240 South State, where Bracey gave him $ 125 and told him "Just be cool." Nellum then drove with Collins to 31st Street and Lake Michigan, where Collins threw two handguns into the lake. Nellum identified a .38-caliber Charter Arms revolver and a .357 Rigueur revolver as the weapons that were thrown in the lake.
On cross-examination Nellum testified that he did not know the reason for the killings but that he went along for a "piece of the action." He also testified that about two months after the murders Hooper told him that $ 1,800 had been taken from the victims. His credibility was weakened by his admission that he lies when he has to, although he stated that his testimony and statements to the police had been truthful. Yet, he admitted he lied to the police concerning the location of the two handguns. Following his arrest, Nellum denied any knowledge of the whereabouts of the weapons. Three weeks prior to trial, however, he directed the authorities to 31st Street and Lake Michigan, where the guns were recovered by divers. Nellum also testified that he decided to cooperate after prosecutors informed him they would not charge him with murder, but would instead recommend a three-year sentence in exchange for his guilty plea to three counts of concealing a homicidal death.
Under further cross-examination, Nellum denied knowing the victim Lacey and said he could not recall ever having his picture taken with him. The defendants, however, introduced into evidence a series of photographs taken in August of 1980 which showed Nellum and Lacey together with a number of other individuals.
Daretha Redmond testified that she lived in a first-floor apartment at 2240 South State. Sometime after 10 p.m. on the night of the murders, she saw a group of about five men, two of whom appeared to be tied, walk past her living room window. Approximately one month later, she was questioned by the police and shown about 40 photographs. Redmond testified she identified photographs of Collins, Nellum and Hooper as resembling men that were in the group. She further testified that the man leading the group wore a wide-brim hat and that he could have been Collins.
On cross-examination Redmond stated she had never seen Bracey before. She also stated that because she did not see the face of the man who was leading the group, she could not say for certain that she caw Collins on the night of the murders.
Laverne Lyles testified that in November 1980 she lived in a fifth-floor apartment at 2240 South State. On the evening of November 12, she went grocery shopping with two friends, returning to the parking lot of her building around 10 p.m. Lyles testified she went to her apartment to get a shopping cart for her groceries. As she walked downstairs, she saw Collins on the second-floor landing wearing a "Spanish type" hat and a long, maroon or burnt-orange leather coat. According to Lyles, Collins was on the apartment side of the stairway door and was closing the door as she approached. Lyles stated she went to her automobile and as she was unloading her groceries from the trunk, she observed three men come out of the building and walk toward the parking lot. One of the men, she said, had his hands tied and had a long handkerchief hanging from his mouth. Lyles further testified that she identified a photograph of Bracey as the man in the lead and a photograph of Pettigrew as the man with his hands bound. She could not identify the third man. She also identified a photograph of Collins wearing a wide-brim hat and said it was the same hat he was wearing when she saw him on the second-floor landing.
Christina Nowell told the jury that she first met defendant Bracey in May of 1980 at the King Midas Lounge in Chicago. In late August, Bracey came to her home, and she showed him a .38-caliber Charter Arms revolver which she kept in the bedroom. Nowell stated she went to the basement for a short time, leaving Bracey in the room alone. The following day she discovered that her gun was missing. Nowell further testified that, in early September 1980, she was at the King Midas Lounge with Bracey; that a man and woman came to their table; that the woman gave Bracey a brown paper bag containing a sawed-off shotgun; and that Bracey "broke down" the gun and gave it to William Lane, an employee of the lounge, who put the weapon behind the bar.
On November 25, 1980, she was again at the lounge with Bracey and asked him when he was going to return her revolver. Nowell testified an argument ensued during which Bracey threatened to have her "wasted." He then told her "he had murdered some people with [her gun] and threw it in the Chicago River."
The evidence also showed that on December 30, 1980, police officers conducting a search of apartment 206 at 2240 South State found two pieces of rope in a bedroom closet. An expert from the Chicago Police Department Crime Laboratory testified that one of the pieces had the same characteristics as the rope found on Pettigrew's wrist and that they "could" have come from the same length of rope. The expert admitted, however, that it was a very common type of rope, found in almost any hardware store.
A firearms expert testified regarding the tests performed on the revolvers recovered from Lake Michigan. The tests revealed that the .38-caliber Charter Arms revolver would mark a bullet with eight lands and grooves to the right while the .357 Rigueur revolver would mark a bullet with five lands and grooves to the right. Bullet or bullet fragments bearing the characteristics of at least one of the weapons were found in each victim. However, because of their rusty condition, the expert could not say for certain that the guns fired the bullets taken from the victims. However, the Charter Arms revolver, by use of its serial number, was found to be the gun that had been stolen from Christina Nowell. The expert also testified that the expended shotgun shells found near Pettigrew's body were fired from the same shotgun but that no shotgun was admitted for testing.
Both defendants raised alibi defenses. In addition, they introduced testimony which suggested that Nellum, Hooper and a man named Jesse were responsible for the crimes.
Bracey's alibi consisted of the testimony of his sister, Barbara Harris. When she was asked to recount the events of November 12, the State objected and argued at a side bar that they had not been informed that Bracey would present an alibi. (Indeed, the record shows that four days earlier Bracey's attorney told the State there would no [sic] be alibi defense.) The court then called a recess to give the State an opportunity to question Harris. When she again took the stand she testified that, at approximately 6 p.m. on the day of the murders, Bracey came to her home and had dinner with her and her husband. According to Harris, her husband went to bed between 7 and 7:30, after which she and Bracey discussed a number of financial matters pertaining to his work as an artist. Bracey, she said, left her home after 11:30 p.m. Under cross-examination, Harris admitted she never told the police, State's Attorney, or anyone else in authority that Bracey was with her on the night of the murders.
Bracey, testifying in his own behalf, said he had known Nellum, Hooper and Lacey for a number of years and that he had known a man named Jesse for six or seven years. Saying he was at his sister's house until 11:30 p.m. on November 12, he denied being in apartment 206 on the night of the murders. He also denied ever being in Christina Nowell's home or stealing her revolver. According to Bracey, Hooper had Nowell's revolver. As to the November 20 conversation with Nowell regarding her gun, he testified that because he was a friend of Hooper, Nowell approached him in the King Midas Lounge and asked him to tell Hooper to return it. He testified he told her that the matter was between her and Hooper and that he "didn't have nothing to do with it." He admitted that an argument ensued and that angry words were exchanged, but denied that he threatened to have her "wasted." Supported by the testimony of William Lane, Bracey also repudiated Nowell's assertion that he received a shotgun in the lounge in September of 1980 and gave it to Lane, who put the weapon behind the bar.
Collins, also testifying in his own behalf, said he had 10 previous armed-robbery convictions. He also said he knew Nellum, Hooper, Bracey, and Lacey, having met the latter two while in prison. He further testified that on November 12 his brown Cadillac was parked behind the King Midas Lounge, where it had been for several weeks because of mechanical problems, and that he did not get the car running again until November 15 or 16. As a result, on the night of the murders he was driving his 1968 Chevrolet, which he had previously loaned to Sandra Johnson but which was returned to him on November 11.
Collins recounted that at approximately 3 p.m. on the day of the murders he took his girlfriend, Beatrice Mack, to a nearby clinic. They then went to the apartment of Irene Parker, Mack's mother. Later that evening Collins and Mack went grocery shopping at a nearby A & P, leaving that store between 9:30 and 10 p.m. On the way back to Parker's apartment, they stepped at 2240 South State. While Mack waited in the car, Collins went to apartment 206. According to Collins, only Nellum, Hooper, Derrick Phipps, and Ben Weathers were present. Following a brief conversation, Collins rejoined Mack, and the two returned to Parker's home. There two ether individuals who were visiting Parker helped them carry the groceries upstairs, after which they all ate dinner together. Collins testified that he left the apartment with Mack at approximately 1 a.m. and that they checked into a motel where they remained until the following morning.
Mack substantially corroborated the events as related by Collins. Her cross-examination revealed, however, that she had been a heroin addict for about five months prior to November 12 and that on the afternoon of the 12th, Collins took her to a clinic where she was undergoing methadone treatment. She also stated that she first dated Collins on November 9, three days before the murders, saying they went to a kung-fu movie at the United Artist Theater in Chicago. In rebuttal the State established that no kung-fu movie was playing at that theater the week of November 9.
Irene Parker, Carolyn Washington and Randolph Harper all testified they had dinner with Collins and Mack on the night of the murders. Washington and Harper also said that at approximately 10:30 p.m. they helped Collins carry groceries from his blue Chevrolet.
In an attempt to establish that his Cadillac was inoperable on the night of the murder and therefore could not have been driven by Nellum, Collins called Sandra Johnson and Earl Young to the stand. Johnson, who had known Collins for almost 10 years, told the jury she was driving Collins' blue Chevrolet in early November but that she returned the automobile to him on November 11, prier to leaving for a trip to Michigan. She stated she saw Collins' Cadillac on November 10 or 11 parked behind the King Midas Lounge and upon returning from Michigan on November 13, she again observed the Cadillac parked in the same location. Her credibility may have been weakened, however, by her admission that she had been convicted of three counts of robbery and also of misdemeanor theft. In addition, she stated on cross-examination that she was receiving public aid in Illinois, but denied that the purpose of her Michigan trip was to apply for public aid in that State. In rebuttal a Chicago police officer testified to a conversation with Johnson in which she informed him that she went to Michigan to apply for public assistance.
Young, the owner of the King Midas Lounge, testified he first noticed a brown Cadillac parked behind his establishment on November 2. Not knowing the owner, he left a note on the windshield four or five days later requesting that it be removed. Three or four days thereafter he saw a number of men, one of whom he identified as Collins, working on the automobile. According to Young, approximately one and a half to two weeks passed after he first observed the Cadillac until it was removed.
Also testifying for the defendants were Derrick Phipps and Ben Weathers. Beth claimed they were in apartment 206 with Nellum and Hooper on the evening of November 12. Bracey, they said, was not present. Around 9:30 p.m., three men, accompanied by a man identified only as Jesse, arrived and went into one of the bedrooms, followed by Nellum and Hooper. Approximately 30 minutes later, Collins arrived looking for Bracey. Upon being informed that Bracey was not present, Collins left the apartment. Shortly thereafter, Phipps and Weathers departed together, presumably leaving Nellum, Hooper, Jesse and the three men in the bedroom.
The credibility of the witnesses was made vulnerable by the disclosure of their respective criminal records. Weathers admitted he received a 10- to 30- year sentence in 1975 for armed robbery. Phipps pleaded guilty in 1974 to an armed-robbery charge, and in 1976 he received concurrent sentences of 9 to 18 years for attempted murder and 6 to 18 years for armed robbery. (The record also shows--although it was net brought to the attention of the jury--that he was awaiting trial on two additional criminal charges when he testified.) Phipps' credibility may have been further weakened by his inability to give but the vaguest description of Jesse. Although he claimed he first met Jesse in the Stateville Penitentiary, Phipps could only say that he was about the same height and weight as the Assistant State's Attorney conducting the cross-examination. Also, after first being unable to recall what Jesse was wearing when he arrived at apartment 206, he then stated that he was wearing a wide-brim hat similar to one worn by Collins. Finally, Phipps was unable to describe any of the men who allegedly came to the apartment with Jesse, nor could he recall where the apartment was located in the building.
Collins I, 478 N.E.2d at 272-76.
II. EXHAUSTION, WAIVER AND DEFAULT
Respondents do not contend that petitioners have failed to exhaust their state court remedies as to any claim. Collins does not contend that any issues are unexhausted. Bracy indicates it is possible the Illinois courts would consider some issues of fundamental error in a second postconviction proceeding. B Reply 8.
The settled Seventh Circuit law is that postconviction proceedings are not necessary for exhaustion unless there is "direct precedent indicating that under the particular circumstances of a prisoner's case the waiver doctrine will be relaxed." Harris v. DeRobertis, 932 F.2d 619, 621 (7th Cir. 1991) (quoting United States ex rel. Williams v. Brantley, 502 F.2d 1383, 1386 (7th Cir. 1974)). No party points to any such direct precedent supporting that any of petitioners' present claims can still be presented in postconviction proceedings. The claims presented will be treated as exhausted.
Respondents contend that a number of the claims have been waived because procedurally defaulted in the Illinois courts. Ordinarily, this court may only consider habeas corpus claims of state prisoners if these claims have, without procedural default, first been fairly presented to the state's highest court. See Coleman v. Thompson, 501 U.S. 722, 111 S. Ct. 2546, 2565, 115 L. Ed. 2d 640 (1991). Procedural default, however, will not preclude consideration of the claim if cause for the default and actual prejudice is shown or if failure to consider the claims would be a fundamental miscarriage of justice. Id.; Jenkins v. Gramley, 8 F.3d 505, 508 (7th Cir. 1993). Constitutionally ineffective assistance of counsel can constitute cause. Coleman, 111 S. Ct. at 2566-67; Buelow v. Dickey, 847 F.2d 420, 426 (7th Cir. 1988), cert. denied, 489 U.S. 1032 (1989). However, the ineffective assistance of counsel claim cannot be used as cause unless the ineffective assistance claim has first been presented as an independent claim in the state court. Murray v. Carrier, 477 U.S. 478, 488-89, 91 L. Ed. 2d 397, 106 S. Ct. 2639 (1986) Morrison v. Duckworth, 898 F.2d 1298, 1300 (7th Cir. 1990). Petitioners make some general response as to the waiver of some of their claims. These arguments will be considered here while arguments specific to particular claims will be discussed as the individual claims are considered.
Petitioners assert that ineffective assistance of postconviction counsel can constitute cause excusing a procedural default. However, there being no constitutional right to counsel on postconviction review, the ineffective assistance of postconviction counsel cannot constitute cause. Coleman, 111 S. Ct. at 2566-68; Jenkins, 8 F.3d at 508; Williams v. Chrans, 945 F.2d 926, 932-33 (7th Cir. 1991), cert. denied, 120 L. Ed. 2d 877, 112 S. Ct. 3002 (1992).
This is true even if postconviction proceedings are the first opportunity that the claim may be raised. Bonin v. Vasquez, 999 F.2d 425, 429 (9th Cir. 1993). However, if an issue was procedurally defaulted for postconviction review because not preserved by trial counsel or counsel presenting the direct appeal, ineffective assistance of that trial counsel or appellate counsel can constitute cause. See Freeman v. Lane, 962 F.2d 1252, 1258-59 (7th Cir. 1992).
Passing reference is also made to petitioners being denied the "legal tools" necessary to perfect their postconviction remedies so that the denial of constitutionally guaranteed access to the courts also constitutes cause. See B Reply 6 (citing Bounds v. Smith, 430 U.S. 817, 52 L. Ed. 2d 72, 97 S. Ct. 1491 (1977)). Bracy states the Supreme Court has not considered whether such a situation can constitute cause, but makes no argument in support of this contention and cites no lower court cases.
There are also no factual allegations as to what legal resources were unavailable or precluded where petitioners were incarcerated. No adequate argument or allegations having been made, this contention need not be considered.
Cf. Thomas v. Lewis, 945 F.2d 1119, 1123 (9th Cir. 1991).
Citing Beam v. Paskett, 3 F.3d 1301, 1306-07 (9th Cir. 1993), cert. denied, 114 S. Ct. 1631 (1994), it is argued that the mandatory nature of the Illinois Supreme Court's review of death sentences means that no fundamental error can be considered to be waived. See B Reply 7-8. Beam concerned a death sentence under Idaho law where the pertinent statutory provision provided that the Idaho Supreme Court had "an affirmative duty to review the entire record in a capital case to determine, inter alia, whether 'the sentence of death was imposed under the influence of passion, prejudice, or any other arbitrary factor.'" Id. at 1306 (quoting Idaho Code § 19-2827). Based on this statute and Idaho case law, the Ninth Circuit held that, regardless of whether it was raised in briefs or expressly discussed in the Idaho Supreme Court's opinion, the Idaho Supreme Court necessarily had decided whether the death sentence had been based on an arbitrary factor and therefore there could be no procedural default on such a claim. Recently, the Eighth Circuit distinguished Beam. It held that a Missouri statute that required review of "whether the sentence of death was imposed under the influence of passion, prejudice, or any other arbitrary factor," Mo. Rev. Stat. § 565.035.3(1), only required the Missouri Supreme Court to review whether any of the aggravating factors considered by the jury was an "arbitrary factor," and did not mandate review of all instructional and constitutional errors for arbitrariness. Nave v. Delo, 22 F.3d 802, 815-16 (8th Cir. 1994).
Illinois law provides: "The conviction and sentence of death shall be subject to automatic review by the Supreme Court. Such review shall be in accordance with rules promulgated by the Supreme Court." 720 ILCS 5/9-1(i). This statute is mandated by the Illinois Constitution. 11. Const. Art. 6, § 4(b) (1970) ("Appeals from judgments of Circuit Courts imposing a sentence of death shall be directly to the Supreme Court as a matter of right.") The Illinois Supreme Court has promulgated the following rules. "Appeals by defendants from judgments of the circuit courts imposing sentence of death shall be directly to the Supreme Court as a matter of right." Ill. Sup. Ct. R. 603. "In cases in which a death sentence is imposed, an appeal is automatically perfected without any action by the defendant or his counsel." Id. 606(a).
Unlike Idaho law, or even Missouri law, Illinois law does not mandate that specific issues be considered by the Illinois Supreme Court. The case law is consistent with the statutory provision. Under Illinois law, to preserve an issue for appeal from a criminal conviction, it generally must be raised at trial and also presented in a motion for new trial pursuant to 725 ILCS 5/116-1. People v. Enoch, 122 Ill. 2d 176, 522 N.E.2d 1124, 1129-30, 119 Ill. Dec. 265, cert. denied, 488 S. 917 (1988). This rule applies to capital cases. Id. at 1131. "Our constitutional obligation to review death penalty cases does not require us to review every issue raised on appeal when the issues are not properly preserved by an objection in the trial court and a written post-trial motion. . . . When the defendant fails to comply with the statutory requirement to file a post-trial motion, our review will be limited to constitutional issues which have been properly raised at trial and which can be raised later in a postconviction hearing petition, sufficiency of the evidence, and plain error." Id. at 1131-32. See also People v. Banks, Ill. 2d , N.E.2d , 1994 WL 194584 *12 (May 19, 1994); People v. Hudson, 157 Ill. 2d 401, 626 N.E.2d 161, 170, 193 Ill. Dec. 128 (1993). Neither the statute nor Illinois case law mandates that the Illinois Supreme Court decide all possible issues that could be raised on direct review of a capital case. No issues can be assumed to have been decided by the Illinois Supreme Court that were not presented to or discussed by the court. Even those issues, such as plain error, which are not waived by failure to present them in the trial court, still must be fairly presented to the Illinois Supreme Court either on direct appeal or through postconviction proceedings or they will be waived for purposes of federal habeas corpus review.
If a state procedural bar of an issue is not applied with regularity and consistency, it will not preclude raising the issue in a federal habeas corpus petition. Johnson v. Mississippi, 486 U.S. 578, 587, 100 L. Ed. 2d 575, 108 S. Ct. 1981 (1988). Johnson applies prior Supreme Court precedent holding that a "state procedural ground is not 'adequate' unless the procedural rule is 'strictly or regularly followed.'" Id. at 587 (quoting Hathorn v. Lovorn, 457 U.S. 255, 262-63, 72 L. Ed. 2d 824, 102 S. Ct. 2421 (1982) (quoting Barr v. City of Columbia, 378 U.S. 146, 149, 12 L. Ed. 2d 766, 84 S. Ct. 1734 (1964)). The Seventh Circuit has explained what is meant by "adequate" and by "strictly or regularly followed."
A state ground is "adequate" only if the state court acts in a consistent and principled way. A basis of decision applied infrequently, unexpectedly, or freakishly may be inadequate, for the lack of notice and consistency may show the state is discriminating against the federal rights asserted.
A requirement of consistency poses special problems for forfeiture rules, because every state uses exceptions such as "plain error" or "sufficient reason" or even "cause and prejudice" to deal with cases in which application of the ordinary rules would produce unacceptably harsh consequences.
Statements such as the one in Barr that a state procedural ground will be respected only when "strictly or regularly followed," 378 U.S. at 149, turn out to be too strong, unless the "procedural ground" is understood to be a complex of rules and qualifications. Wisconsin employs a rule that failure to raise a ground forfeits it unless there are "sufficient" reasons. A rule of forfeiture-unless-good-reasons may be "strictly" followed when the state is scrupulous about treating particular reasons as "sufficient" routinely and others as insufficient with equal regularity.
Searching for "regularity" in the state's employment of excuses and exceptions would embroil the federal court deeply in questions of state law and procedure. An alternative to the comprehensive survey of state cases every time a state invokes waiver is to recharacterize what it means for a state to apply its rule strictly. Both the Supreme Court and the inferior courts respect state procedural grounds unless they are regularly disregarded (or seemingly have been manufactured for the occasion as in Johnson). A state ground that is solidly established will be respected even though not "strictly" followed. Any other approach would discourage state courts from applying plain error doctrines, lest giving one prisoner a break disables the state from enforcing its procedural rules with respect to many others.
It is contended that the Illinois Supreme Court declined to apply plain error in Bracy's and Collins's case, while applying it in other cases. C22-23. It is argued that, in at least two other cases, the Illinois Supreme Court has found error in prosecutors' closing remarks even though those remarks were provoked by arguments of defense counsel. C Reply 58-59 (citing People v. Monroe, 66 Ill. 2d 317, 362 N.E.2d 295, 5 Ill. Dec. 824 (1977); People v. Stock, 56 Ill. 2d 461, 309 N.E.2d 19 (1974)). See also C Reply 62 (citing People v. Brisbon, 106 Ill. 2d 342, 478 N.E.2d 402, 88 Ill. Dec. 87, cert. denied, 474 U.S. 908 (1985)). It is contended that the application of invited error in Collins I, 478 N.E.2d at 287-88, is inconsistent with Monroe and Stock. The issue of invited error and whether petitioners were prejudiced by these particular prosecutorial arguments
is more in the nature of a substantive ruling than a procedural bar. Errors of state law are not a basis for granting federal habeas corpus relief. Williams v. Chrans, 945 F.2d at 956. An allegedly incorrect application of state law does not become a basis for habeas corpus relief simply by recharacterizing it as an equal protection violation because some defendants have different law applied to them. Bowser v. Boggs, 20 F.3d 1060, 1065-66 (10th Cir. 1994). Also, this case does not involve arbitrary application of the law that might support an equal protection claim. See Del Vecchio v. Illinois Department of Corrections, 1994 WL 374790 *22 (7th Cir. July 19, 1994) (en banc). Collins's Claims XXII and XXIII are not cognizable as independent claims.
It is also contended that the Illinois Supreme Court has been inconsistent in applying the plain error rule to prosecutorial remarks for which there were no contemporaneous objections. See C Reply 59-64. Only one case is cited where prosecutorial remarks were held to be reversible error even though no contemporaneous objection had been made. See People v. Holman, 103 Ill. 2d 133, 469 N.E.2d 119, 136-41, 82 Ill. Dec. 585 (1984), cert. denied, 469 U.S. 1220 (1985). The prosecutorial remarks involved in that case and the cases cited therein, see id. at 140-41, are different from those involved in the present case. The Illinois Supreme Court may find plain error as a result of certain prosecutorial remarks without finding it in different remarks without being legally inconsistent. Petitioners have not made a showing of freakish application that would satisfy the standard set forth in Prihoda. The Illinois Supreme Court did not rely on any procedural bar that was inadequate.
III. GROUNDS ASSERTED FOR RELIEF
Each petitioner has raised a number of issues. Bracy has divided his petition into 17 separate claims and Collins has divided his petition into 23 claims plus an additional 14 that he seeks to raise in three supplemental petitions.
Most issues have been raised by both petitioners. Therefore, each petitioner's contentions will be considered together, with all applicable arguments being considered as to each petitioner. All issues raised will be considered. The claims are addressed in the order set forth in Collins's petition, the lower numbered case.
A. Exclusion of African-Americans from Jury (B2, C1)
It is alleged that the venire of 60 potential jurors contained 5 or 6 African-Americans. C P 396. Over objection, one African-American, Harry Cooper, was excused for cause because of commitments to his Little League team. C P 397-98; B P 59. At the time, no other African-Americans were among those under consideration for the jury. C P 399. The State exercised its peremptory challenges as to two African-American venirepersons. C P 401-02. The allegations do not specify whether any African-Americans were members of the jury that was impaneled.
Since decided after direct review in this case had been completed, Batson v. Kentucky, 476 U.S. 79, 90 L. Ed. 2d 69, 106 S. Ct. 1712 (1986), is inapplicable to petitioners' claims. Williams v. Chrans, 945 F.2d at 942-46. Petitioners (through Collins, C Reply 13-14) contend they can show systematic exclusion of African-Americans that is prohibited by Swain v. Alabama, 380 U.S. 202, 13 L. Ed. 2d 759, 85 S. Ct. 824 (1965). On postconviction review, the Illinois Supreme Court denied this claim on the ground that Bracy and Collins "did not raise any claim of the case-by-case exclusion of blacks required by Swain nor have they submitted any affidavits or made any sort of showing of this practice." Collins II, 606 N.E.2d at 1141.
Failure to fairly present a claim to the state court constitutes a procedural default barring the presentation of the claim on federal habeas corpus review. See Verdin v. O'Leary, 972 F.2d 1467, 1472-73 (7th Cir. 1992). This includes fairly presenting the operative facts. Keeney v. Tamayo-Reyes, 118 L. Ed. 2d 318, 112 S. Ct. 1715, 1719 (1992); Verdin, 972 F.2d at 1474. The Swain claim has been procedurally defaulted. However, such default will be excused if cause and prejudice can be shown. See Coleman, 111 S. Ct. at 2565. Petitioners (through Collins, C Reply 14-15) contend cause can be shown by the ineffective assistance of postconviction counsel. Ineffective assistance of postconviction counsel cannot constitute cause. See Coleman, 111 S. Ct. at 2566-68; Jenkins, 8 F.3d at 508; Williams v. Chrans, 945 F.2d at 932-33; Bonin, 999 F.2d at 429. The Swain claim has been waived for failure to adequately present it to the state courts. Collins Claim I will be denied.
The focus of Bracy's allegations (B P 59) is that it was erroneous to excuse Cooper for cause. It is conceded that this issue was not raised in the Illinois courts (B P 60), but it is contended that failure to do so was ineffective assistance of counsel. Neither Bracy nor Collins support this contention. Bracy makes no specific argument as to either the merits of this issue or the alleged ineffective assistance in failing to object at the time Cooper was excused. No grounds for excusing the procedural default is found. Bracy Claim II is held to be waived for failure to raise it in the state courts.
B. Nellum's Testimony - Discovery and a Hearing (B5, B6, C2)
In early 1992, a private investigator hired by Bracy's attorney spent 25 hours interviewing Morris Nellum.
Some of the interview was recorded. In July 1992, Nellum gave a sworn statement before a court reporter to counsel for Bracy. In the interview and in the statement, Nellum said that some of his testimony at Bracy's and Collins's trial was false.
Thereafter, in April 1993, counsel for Bracy partially deposed Nellum in the Arizona postconviction proceedings, but, after answering some questions, without adding to his earlier statements, Nellum declined to continue unless his testimony was taken before a judge. Thereafter, the Arizona court declined to continue the deposition. Petitioners seek further discovery and a hearing to introduce additional Nellum testimony.
Although not stated by Nellum, it is argued that the assistant State's Attorney knew his testimony was false when given, and knowing use of the false testimony is alleged by both petitioners.
In the interviews, statement, and deposition, Nellum does not testify that Collins and Bracy were not involved in the murders. He instead testifies that certain specific statements by him were false. Contrary to his trial testimony, Nellum said that he was beaten by and threatened by the police when he was first arrested and gave an initial statement. See Nellum Stmt.
10-11, 15, 17-18, 20. He also stated that he was on one side of a two-way mirror adjoining an interrogation room where he saw Bracy being beaten. Id. at 14, 18. He states that his testimony that he saw Hooper at the scene of the crime was false.
Id. at 12, 19-20. His testimony that he saw Bracy with a shotgun was also said to be false. Id. at 22-23. He confirmed his testimony that he saw Collins with guns and that he was in a car with Collins. Id. at 23. He also testified that the assistant State's Attorney helped him get a job with musicians. This was after the trial and not promised prior to the conclusion of the trial. See id. at 23-24. Earlier in 1992, he told the private investigator that he never heard any gunshots and that he did not see Collins and others lead the murder victims to the car. This recantation was not repeated in his sworn statement or partial deposition.
Respondents primarily argue that recantation issues have been waived because not presented to the Illinois courts. The 1992 statements of Nellum occurred after the opening brief had already been filed in the postconviction appeal. Postconviction counsel raised the issue of recantation by Nellum for the first time in a reply brief, but that section of the brief was stricken and the issue is not discussed by the Illinois Supreme Court. See Collins II. Petitioners do not dispute that this issue has never been adequately presented to the Illinois Supreme Court and that an argument can be made that it is too late to do so now. They contend, however, that it was newly discovered evidence and therefore cause exists for not having previously presented it to the Illinois Supreme Court. There is no contention by respondents that the information could have been discovered sooner had due diligence been exercised. The discovery of new evidence may, under certain circumstances, constitute cause. Cf. Murray, 477 U.S. at 488; Cornell v. Nix, 976 F.2d 376, 380 (8th Cir. 1992) (en banc), cert. denied, 123 L. Ed. 2d 450, 113 S. Ct. 1820 (1993). Here, however, the newly discovered evidence is in the nature of a partial recantation of peripheral facts which are independently supported by other testimony and exhibits.
Ordinarily, state court remedies must first be exhausted. The time for filing a postconviction petition had already expired at the time the new evidence was discovered. See 725 ILCS 5/122-1. The delay, however, will be excused if it was not due to the defendants' culpable negligence. Id. Respondents, though, do not point to any direct precedent that the Illinois courts would excuse the delay. Therefore, it is presumed that no remedy was still available in state court at the time the new evidence was discovered. Harris v. DeRobertis, 932 F.2d at 621.
The introduction of perjured testimony at a trial is not, by itself, a constitutional violation that will support the granting of habeas corpus relief. Shore v. Warden, Stateville Prison, 942 F.2d 1117, 1122 (7th Cir. 1991), cert. denied, 118 L. Ed. 2d 573, 112 S. Ct. 1973 (1992). There is only a constitutional violation if the prosecution knowingly used perjured testimony. Id.; Del Vecchio, 1994 WL 374790 at *23. Nellum's various statements do not support such a conclusion. Even if this element were satisfied, the recantation must be "substantially different" from the trial testimony and central to the decision in the case. See Shore, 942 F.2d at 1124. Mere impeachment generally will be insufficient. See id. The question is whether the new testimony is substantially different and central to the decision in the case. The recantation about being beaten and testifying falsely in Arizona only go to credibility. The false statement about whether Nellum saw Hooper at the crime scene is also peripheral to Bracy's and Collins's guilt if Nellum still links Bracy and Collins to the scene. Recanting of the testimony that he saw Bracy and Collins lead the victims to the car and that he heard gunshots does not substantially affect the State's case. Two other independent witnesses put Collins and Bracy at the scene of the abduction. Another independent witness heard the shots and the ballistics evidence strongly supports the use of a shotgun and the weapons found as a result of Nellum's information. Moreover, Nellum still states he picked up Collins at the murder site and does not expressly recant that Bracy was there.
Petitioners seek permission to conduct discovery and hold a hearing, calling Nellum to testify. An investigator spent 25 hours talking to him, a sworn statement was taken by a lawyer for Bracy and a deposition was partially taken without developing a substantial recantation. Under the circumstances, good cause does not exist for permitting further discovery. See Rules Governing § 2254 Cases Rule 6(a); Matta-Ballesteros v. Henman, 896 F.2d 255, 259 (7th Cir.), cert. denied, 498 U.S. 878, 112 L. Ed. 2d 169, 111 S. Ct. 209 (1990). Hearing additional testimony from Nellum fourteen years after the events is not warranted. Given all the facts and circumstances, additional recantation, which would have little, if any, credibility, could only be cumulative impeachment.
C. Prosecutorial Misconduct (B4, B14, C3)
Petitioners raise issues as to prosecutorial misconduct at three stages of the trial. It is contended that the prosecutors acted improperly by bringing out evidence that certain witnesses had been relocated for protection and by using certain evidence to impeach witnesses. Petitioners also complain about certain prosecution arguments that were used in the prosecution's closing statement and in the prosecution's argument at the death penalty phase.
Respondents contend that certain prosecutorial misconduct claims are waived because not fairly presented to the Illinois Supreme Court. Respondents argue that the claims presented to the Illinois Supreme Court were only argued on state law grounds and therefore the constitutional variations contained in the present petitions were not fairly presented to the Illinois Supreme Court. Following the Second Circuit, the Seventh Circuit has adopted the following standard as to fair presentation.
If the petitioner's argument to the state court did not: (1) rely on pertinent federal cases employing constitutional analysis; (2) rely on state cases applying constitutional analysis to a similar factual situation; (3) assert the claim in terms so particular as to call to mind a specific constitutional right; or (4) allege a pattern of facts that is well within the mainstream of constitutional litigation, then this court will not consider the state courts to have had a fair opportunity to consider the claim. However, the presence of any one of these factors, particularly factors (1) or (2), does not automatically avoid a waiver; the court must consider the specific facts of each case.
Here, petitioners cited only state cases. However, they identified the claims as ones for prosecutorial misconduct and asserted that there were violations of due process or the right to a fair trial. In Collins I, the Illinois Supreme Court referred to the right to a fair trial in discussing the prosecutorial misconduct claims before it. Since prosecutorial misconduct claims are in the mainstream of constitutional litigation; references to due process and the right to a fair trial were sufficient to inform the Illinois Supreme Court that the claims were constitutionally based. Garofolo v. Coomb, 804 F.2d 201, 206 (2d Cir. 1986); Chisholm v. Henderson, 736 F. Supp. 444, 446 (E.D.N.Y. 1990), aff'd by unpublished order, 953 F.2d 635 (2d Cir. 1991); United States ex rel. Boone v. Sandahl, 1992 WL 111089 *2 (N.D. Ill. May 8, 1992); Saunders v. Riley, 1991 WL 95352 *5 (S.D.N.Y. May 30, 1991). The claims presented to the Illinois Supreme Court
have not been waived for failure to fairly present them in constitutional terms.
To be grounds for habeas relief, prosecutorial misconduct must have "so infected the trial with unfairness as to make the resulting conviction a denial of due process." Darden v. Wainwright, 477 U.S. 168, 181, 91 L. Ed. 2d 144, 106 S. Ct. 2464 (1986) (quoting Donnelly v. DeChristoforo, 416 U.S. 637, 643, 40 L. Ed. 2d 431, 94 S. Ct. 1868 (1974)). Accord Romano v. Oklahoma, 129 L. Ed. 2d 1, 114 S. Ct. 2004, 2012 (1994); Pierson v. O'Leary, 959 F.2d 1385, 1387 (7th Cir.), cert. denied, 121 L. Ed. 2d 115, 113 S. Ct. 168 (1992); Williams v. Chrans, 945 F.2d at 949. "It 'is not enough that the prosecutors' remarks were undesirable or even universally condemned.'" Darden, 477 U.S. at 181 (quoting the court below). Viewed in the context of the entire case, any misconduct shown must be "so inflammatory and prejudicial to the defendant . . . as to deprive him of a fair trial," Williams v. Chrans, 945 F.2d at 949 (quoting United States v. Chaimson, 760 F.2d 798, 809 (7th Cir. 1985)) (ellipsis in Williams), and must have "likely changed the outcome of the trial." Pierson, 959 F.2d at 1387. This includes consideration of whether the misconduct was "invited" by conduct of defense counsel,
whether objections were sustained, and any corrective or related instructions given. See Darden, 477 U.S. at 182.
3. During Presentation of Evidence
Petitioners complain that evidence as to Lyles and Nellum being relocated was elicited by the prosecution and also raised in the prosecution's closing argument. The Illinois Supreme Court held as follows on this issue.
. . . During cross-examination of Lyles the defense brought out the fact that Lyles had received money from the State's Attorney's office. On redirect examination by the State, Lyles testified that the money had been for security deposits and rent. There is nothing unfair about allowing the State to explain on redirect examination why it gave one of its witnesses money when that fact had been brought out by the defense during cross-examination. In closing argument, the defense referred to Lyles as being "well taken care of." On rebuttal the State asked, "why do you think we moved her? Do you think we were concerned about her [sic] responsibility to Laverne Lyles?" Again, there is nothing unfair about allowing the State to explain in rebuttal argument why a defense witness was being "taken care of" by the State when that issue was raised by the defendant during closing argument. The complained-of testimony and arguments were invited by the defendants and thus did not deprive them of a fair trial. . . .
. . . Nellum testified during direct examination by the State that in return for his truthful testimony and plea of guilty on the concealment charges the State had agreed to recommend "three years protective custody and relocate my family." The defendants did not object to the testimony. An agreement reached between an accomplice witness and the State to secure the witness' testimony is relevant because it goes to the credibility of the witness and the weight to be given his testimony. . . . Nellum's testimony concerning his agreement with the State was relevant and did not deprive the defendants of a fair trial.
Collins I, 478 N.E.2d at 280.
Evidence that a witness is in protective custody may be relevant, but should be used cautiously. See United States v. Adamo, 742 F.2d 927, 944-46 (6th Cir. 1984), cert. denied, 469 U.S. 1193 (1985). Here, petitioners questioned Lyles about benefits she had received from the government. It was unnecessary and improper for the prosecution to expand on that by also eliciting information about being in protection. However, the prosection did not dwell on the fact that Lyles and Nellum were provided with protection. The few references made did not rise to the level of a constitutional violation by so inflaming the jury that petitioners were deprived of a fair trial. The references to protective custody are not a basis for granting habeas corpus relief. Cf. United States v. Caliendo, 910 F.2d 429, 436 (7th Cir. 1990); United States v. Panas, 738 F.2d 278, 285 (8th Cir. 1984); United States v. Blankenship, 707 F.2d 807, 810-11 (4th Cir. 1983).
Errors regarding the admissibility of evidence are generally a matter of state law that are an insufficient basis for granting habeas corpus relief. Estelle v. McGuire, 502 U.S. 62, 112 S. Ct. 475, 480, 116 L. Ed. 2d 385 (1991); Romano, 114 S. Ct. at 2011; Pierson, 959 F.2d at 1389; Gacy v. Welborn, 994 F.2d 305, 316 (7th Cir.), cert. denied, 126 L. Ed. 2d 220, 114 S. Ct. 269 (1993). To support the granting of habeas relief, the evidentiary ruling must implicate a specific constitutional right or the evidence's undue prejudice so greatly outweigh its probative value and likely affect the trial outcome that the defendant was denied a fundamentally fair trial. Pierson, 959 F.2d at 1389. A witness's recall of events that occurred the day before the event pertinent to the charges and a witness's addiction to narcotics can be relevant to that witness's credibility. It does not exceed the bounds of the Constitution for a state court to hold that such impeachment was not excludable as collateral. Also, the prosecution's particularized questioning as to Mack injecting the heroin into her arms with needles did not add such undue prejudice to the addiction questioning that a constitutional error was present.
As the Illinois Supreme Court correctly stated, the nose-ring question was improper and exhibited a lack of professionalism. However, there was only one question and it was immediately ordered to be stricken.
This question cannot be found to have caused significant prejudice and certainly does not support a constitutional claim.
Sandra Johnson provided testimony regarding whether Collins's Cadillac was being used by him on the night of the murders. She had testified that she returned Collins's Chevrolet on November 11, prior to her going to Michigan. She testified that she was receiving public aid in Illinois and Johnson was also questioned as to whether the trip to Michigan was for the purpose of applying for public aid there. She denied that was the purpose of her trip and, in rebuttal, a police officer testified that she had told him that was the purpose of her Michigan trip. No objection was raised at trial and the Illinois Supreme Court held that the issue was waived for purposes of appeal. Collins I, 478 N.E.2d at 282. Even if this issue has not been waived for federal habeas corpus purposes, it fails to state any ground for granting relief. This evidentiary question of collateral impeachment does not rise to the level of a constitutional violation. Any prejudice would be minimal. Johnson was also impeached on the basis of convictions for three counts of robbery and one of misdemeanor theft.
Collins complains that the prosecution made arguments as to Johnson that sought to link Collins to crimes committed by Bracy in Arizona. See C P 443. It is unclear how the prosecution argument linked Collins to the Arizona crimes. In any event, this issue was never raised in the state courts and no argument in support of it is made in response to respondent's motion to dismiss. See C Reply 23-30. This issue is waived.
It was part of petitioners' defense that the murders had been committed by Nellum, Hooper, and "Jesse." The prosecution twice argued in closing that no prosecution witness had been questioned about Jesse. That was factually incorrect; Nellum had been questioned about Jesse. Objections were made to the argument and the court overruled the objections, but instructed the jury to rely on its recollection of the evidence. The prosecutor had also told the jury that his statements were not evidence. The jury was correctly instructed as to the law and had the opportunity to consider the prosecution's argument in light of the evidence presented at trial. Also, whether Nellum had been asked about Jesse was not a key fact, especially since he had denied having any knowledge of Jesse. The prosecution's misstatement of the evidence was not so prejudicial as to constitute constitutional error. Cf. Donnelly, 416 U.S. at 644; United States v. Green, 25 F.3d 206, 210 (3d Cir. 1994); Therrien v. Vose, 782 F.2d 1, 4 (1st Cir.), cert. denied, 476 U.S. 1162, 90 L. Ed. 2d 727, 106 S. Ct. 2285 (1986), Girardin v. Pyle, 752 F. Supp. 979, 982-83 (D. Col. 1990), aff'd by unpublished order, 936 F.2d 582 (10th Cir.), cert. denied, 112 S. Ct. 329 (1991). For similar reasons, the alleged mischaracterization of Lyles's testimony, see C P 469, is not constitutional error.
Petitioners also complain of arguments made by the prosecution in closing. The following arguments were made in the prosecution's initial summation, argued by assistant State's Attorney Owen. Hyman and O'Callaghan were both assistant State's Attorneys who testified at the trial.
OWEN: You heard the evidence. You heard the rebuttal witnesses that we put on after they put on their cock and bull ...