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UNITED STATES EX REL. EMERSON v. GRAMLEY

March 30, 1995

UNITED STATES OF AMERICA EX REL DENNIS EMERSON, Petitioner,
v.
RICHARD GRAMLEY, Warden, Pontiac Correctional Center, Respondent.



The opinion of the court was delivered by: MARVIN E. ASPEN

 MARVIN E. ASPEN, District Judge:

 Petitioner Dennis Emerson brings this petition for a writ of habeas corpus pursuant to 28 U.S.C. ยง 2254. Emerson essentially raises three challenges to his conviction and sentence: (1) he was afforded ineffective assistance of counsel at the guilt-innocence phase of the trial, (2) he was afforded ineffective assistance of counsel at the sentencing phase of trial, and (3) he was sentenced under an unconstitutional sentencing scheme. For the reasons set forth below, his petition is granted in part and denied in part.

 I. Background1

 In his second trial a jury in the Circuit Court of Cook County convicted petitioner of murder, attempted murder, aggravated arson and two counts of armed robbery. *fn2" The same jury then imposed a sentence of death. Emerson appealed to the Illinois Supreme Court, which reversed his conviction on the aggravated arson count but affirmed all other counts and affirmed his sentence of death. People v. Emerson, 122 Ill. 2d 411, 522 N.E.2d 1109, 119 Ill. Dec. 250 (Ill. 1987), cert. denied, 488 U.S. 900 (1988). Emerson filed a petition for post-conviction relief, as well as a supplemental petition upon his retention of counsel, both of which were denied by the state trial court without a hearing. The Illinois Supreme Court affirmed the denial of post-conviction relief, and the United States Supreme Court denied certiorari. People v. Emerson, 153 Ill. 2d 100, 606 N.E.2d 1123, 180 Ill. Dec. 46 (Ill. 1992), cert. denied, 113 S. Ct. 1865 (1993). Emerson filed the instant petition on August 3, 1993.

 The primary evidence at both of petitioner's trials was the testimony of Robert Ray, the co-owner of the Centaur Lounge in Chicago and an acquaintance of Emerson's for many years. He testified that he was working at the Lounge on August 12, 1979, and that Emerson called him numerous times that day to tell him he would be stopping by the bar. Ray testified that he closed the tavern at approximately 1:15 a.m., and that petitioner, accompanied by his brother Richard Jackson ("Jackson"), arrived some time later. The three men then went to Ray's apartment at the rear of the Lounge, where they were soon met by Ray's girlfriend, Delinda Byrd. Ray briefly left the group to buy some cigarettes from a store across the street, and then returned to the apartment.

 Ray testified that as he was opening the package of cigarettes, Emerson pulled out a gun and ordered him and Byrd to lie on the floor. Petitioner then bound their hands and feet with some electrical cord he found in the apartment, and began pilfering the cash register in the tavern. After Ray told Emerson where he kept jewelry and guns in his apartment, petitioner gathered these items as well as any money Ray and Byrd had in their possession. While Emerson was collecting his booty, Jackson kept the gun on Ray and Byrd as they lay on the floor.

 Ray then testified that Jackson and Emerson went into the kitchen, where Jackson picked up a half pair of scissors and told petitioner to "use this." At this point, Emerson went over to the victims and stabbed them in the chest and back several times. Jackson and Emerson then started a fire in Ray's bedroom and threw Ray and Byrd in the flaming room. Ray testified that because he heard the door knob being rattled, he waited until the noise stopped before untying his hands and opening a window. He then fell out the window about eight feet into an airshaft between his building and the one next door. Ray claimed that Byrd also fell out of the window into the airshaft, and that he untied the remaining bindings on them. Ray then climbed back into the bedroom, but was unable to open the door. He crawled back into the airshaft and tried to enter the apartment through the kitchen window, but found the kitchen enveloped in smoke and flames. Finally, Ray entered a window leading into the Lounge and ran out the front door and summoned for help Ray testified that he then ran back into the building, but was unable to extricate Byrd from the airshaft.

 Firefighters later recovered Byrd's body from the airshaft, and medical testimony at trial established that she had been stabbed five times in the back, and had died from a combination of massive blood loss and extensive burns. Inside the apartment firefighters recovered lengths of electrical cord, the door knob and lock assembly to the bedroom door and a coat hanger found next to them. No scissors or shears were found in the apartment.

 At one point during the State's case, outside the presence of the jury, Emerson expressed to the court his displeasure with the performance of his lawyer, Assistant Public Defender James Sammons. Trial Rec., Vol. III at 357. *fn3" Emerson also lamented that Sammons had not previously discussed trial strategy with him and resisted calling any witnesses. Id. at 359-60. After having his complaints rebuffed by the trial judge, Emerson declared that he would have nothing to do with the rest of the proceedings and would sit out the remainder of the trial in the back of the courtroom. Id. at 363-70. *fn4"

 At the close of the State's case, Sammons indicated that he planned to rest without calling any witnesses. Trial Rec., Vol. III at 431. His client, however, demanded that certain witnesses be called in his defense. First, Emerson called his brother Ricky Jackson ("Ricky") to the stand and began to question him about Ray's possible motive for lying, but objections to his questions were sustained. Trial Rec., Vol. III at 437. Sammons then examined Ricky and elicited that he had been employed by Ray for a period of time before the alleged robbery. Sammons tried to inquire as to a possible motive for Ray to testify falsely, but his questions brought an objection from the State. Id. at 443. Outside the presence of the jury, Emerson told the judge that he wanted to ask about a loan he had made to Ray, and establish that this loan was the reason for Ricky's employment. Id. at 444. Sammons told Emerson and the court that he had asked all the questions he would on the topic, since his inquiries had been ruled objectionable. Id. at 445. *fn5" The judge then explained to Emerson that Ricky could not testify as to what Ray or Emerson had told him; rather, Emerson would have to testify himself as to the existence of the alleged loan. When the jury returned, Sammons did not ask Ricky any further questions.

 Emerson next directed Sammons to call his mother, Ms. Jessie Jackson, to the stand. However, Emerson refused to remain in the front of the courtroom during this examination. Rather, he insisted on sitting in the holding cell in the rear of the courtroom. When Ms. Jackson took the stand, Sammons indicated that he had no questions for her and she was asked to step down. *fn6"

 Finally, petitioner requested that his brother (and co-defendant) Jackson be permitted to testify. At Emerson's direction, and over the protest of Jackson's attorney, Sammons asked Jackson if he had any further information as to the events of August 12-13, 1979. Jackson testified that on August 12 he had asked Emerson for a few hundred dollars, but Emerson had been unable to help him out. According to Jackson, Emerson then said that Ray owed him some money, and he offered to have Ray pay part of that debt to Jackson. Emerson called Ray to tell him that his brother was going to collect some of the money he owed him, and later on that day Jackson went to see Ray at the Centaur Lounge with a friend named Phillip Anderson. Jackson told the jury that at one point during the meeting Anderson realized "this [was] not what he come for," and pulled a gun on Ray. Trial Rec., Vol. III at 453-57. Soon afterwards Ray's girlfriend entered the apartment, and Jackson and Anderson proceeded to tied them up, stab them, set the apartment on fire, and lock them in the flaming room. On cross-examination, Jackson admitted that he had never told this story to anyone else before that day.

 Sammons rested for the defense after Jackson's testimony. In closing argument the prosecution stressed the veracity of Ray's testimony as well as the fact that it was essentially corroborated by Jackson. Sammons then made the following closing argument:

 
Ladies and gentlemen, this case has become bizarre, in and out. A state of confusion during this trial as I suppose you can tell due to the fact that my client and I have disagreement--disagreements about how this case should be tried. And, of course, as you heard, the testimony of his brother that you heard a few moments ago was something no one heard, including myself and his own lawyer until the time he took the stand and gave it. But as long as this man's life is in my hands, I'm going to do my best to save his life.
 
I can still look you in the eye with all this evidence and say this. That I don't believe that two people went into that place that night with the idea to commit an armed robbery. And there's a difference between just a simple murder and felony murder. I know it sounds terrible, but in our law, there's a difference between when a man commits murder and when a man commits murder in the course of a felony.
 
. . . .
 
If you have any doubts about the counts of armed robbery which will be submitted to you in this case with respect to Dennis Emerson, please, at this point, find him not guilty of armed robbery. It does make a difference. And as I say, I don't think two men planning to go into a saloon, a tavern in this particular area and planning to commit a robbery, planning to take the weekend proceeds--
 
[Prosecutor]: I'm going to object at this point. Whether they planned it or not is not relevant. The fact they did it or not is relevant.
 
The Court: Overruled. I'll instruct the jury as to the law.
 
Mr. Sammons: In planning to murder the witnesses so there would be no witnesses to it, you never call up and announce their arrival. Would never allow this man to leave, go out and get cigarettes. That's all I'm saying. If this was a murder, it was a murder. If there is a reasonable doubt that this was a murder committed in the course of a forcible felony or armed robbery, I'm asking you to so indicate by signing verdict forms of not guilty with respect to these armed robbery counts. And that's all I'm asking you. Thank you.

 Trial Rec., Vol. III at 477-79. *fn7" In rebuttal the prosecution again attacked Jackson's credibility and stressed that Ray's testimony was believable.

 After the jury found Emerson guilty of murder, attempted murder, armed robbery and aggravated arson, Sammons moved for a mistrial but this motion was denied without argument. The State then moved for a death penalty hearing, which was held the following day. Sammons submitted the issue of eligibility to the jury without evidence or argument, and the jury found Emerson death eligible.

 The aggravation-mitigation phase of sentencing then began. Although the prosecution made an opening statement, Sammons declined to do so. Further, Sammons asked only one question during cross-examination of the state's witnesses. Trial Rec., Vol. III at 552-80. *fn8" At the close of the prosecution's evidence, Sammons stated "my client wishes me to present no evidence, make no argument and wishes to remain in the back." Id. at 584. At the prompting of the prosecutor, the judge brought Emerson up from the back of the courtroom and conducted the following inquiry:

 
The Court: All right. Mr. Emerson, you have heard what your attorney just said, that you basically have no evidence to present in mitigation. And you have no witnesses and you do not wish to be out here, is that correct, sir?
 
Mr. Emerson: (nodding)
 
The Court: Did you hear that in the back?
 
Mr. Emerson: No. I was ...

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