Appeal from the United States District Court for the Northern District of Indiana, South Bend Division.
No. 88 C 685--Allen Sharp, Chief Judge.
Before POSNER, Chief Judge, and BAUER and FLAUM, Circuit Judges.
Tommie Smith is under sentence of death in Indiana for murdering a police officer. The district court denied his petition for habeas corpus, and Smith appeals. Three years ago we affirmed the denial of habeas corpus to Smith's codefendant, Gregory Resnover, who has since been executed. Resnover v. Pearson, 965 F.2d 1453 (7th Cir. 1992). To the extent that Smith presents grounds for reversal that are identical to those we resolved against Resnover, we reject them on the authority of our previous decision, for nothing has happened in the interim to warrant a reexamination of any of our rulings. We confine discussion to issues not presented in that case.
Smith, Resnover, and Resnover's brother Earl were a band of robbers. Resnover (Gregory, unless otherwise indicated) and Smith were wanted by the police for two recent armed robberies. In one, another brother of Resnover had been killed, and in the other a Brinks guard had been killed. The investigation was led by detective sergeant Jack Ohrberg of the Indianapolis police. The band may have known that Ohrberg was after them, for after the killing Ohrberg's business card, with his wife's name and his home telephone scrawled on the back, were found on Earl Resnover's person.
With the police closing in, the band decided to fight it out. Equipping themselves with an arsenal that included two assault rifles (both AR-15's), they holed up in a house and barricaded the front door with furniture. Before dawn, on a December day in 1980, Ohrberg and four other police officers appeared at the house to serve warrants for the arrest of the members of the band. Ohrberg knocked on the front door, shouting "police." A neighbor heard a male voice inside the house shout, "It's the motherfuckin' police." Ohrberg forced the front door open with his shoulder, and as the door opened he was fired upon by Smith and Resnover from the front room of the house. He was hit, and collapsed on the porch. The other officers ducked for cover. Smith and Resnover fired at them. Smith went out on the porch and fired several times at Ohrberg's motionless body. He then went back inside and, seriously wounded himself, collapsed, unconscious. Resnover then surrendered. Earl Resnover had remained in a back room throughout the melee. Ohrberg had been shot three times, and was dead. One of the bullets came from the AR-15 that was found lying next to the unconscious Smith; the other two could not be identified.
It makes no difference to Smith's or Resnover's guilt of murder and conspiracy to murder which of them fired the bullet or bullets that actually killed Ohrberg. To be guilty of conspiracy to murder they had only to agree to murder, and commit an overt act in furtherance of the conspiracy, Ind. Code sec. 35A5-2; Sawyer v. State, 583 N.E.2d 795, 798-99 (Ind. App. 1991), while to be guilty of murder it was enough that they jointly engaged in conduct that was intended or highly likely to result in death and that death did result. Harris v. State, 617 N.E.2d 912, 915 (Ind. 1993); Murphy v. State, 518 N.E.2d 1079, 1082 (Ind. 1988); Smith v. State, 465 N.E.2d 1105, 1125 (Ind. 1984) ("under these circumstances there need be no actual proof as to which of these participants actually caused the death of Sgt. Ohrberg"); Smith v. State, 516 N.E.2d 1055, 1062 (Ind. 1987). Obviously it is not necessary to show that each participant fired the (or a) lethal shot, as that would make it impossible in most cases to convict more than one person of the same murder even if the murder was the result of a scheme in which more than one person participated, as it was here. And there is no constitutional bar to executing a participant who did not personally inflict the fatal wound. Tison v. Arizona, 481 U.S. 137, 157 (1987); Resnover v. Pearson, supra, 965 F.2d at 1464.
Smith and Resnover were tried together, in 1981, and the jury convicted both of them of murder and of conspiracy to murder. The jury reconvened the next day for the death-penalty hearing and recommended the death penalty for both defendants. Under Indiana law, the judge makes the final decision. Ind. Code sec. 35P2-9(e); Roark v. State, 644 N.E.2d 565, 571 (Ind. 1994). She sentenced both defendants to death for murder and to fifty years in prison for conspiracy to murder. The Indiana Supreme Court affirmed Smith's convictions and sentences and, later, the denials of his petitions for state post-conviction relief. Smith v. State, 465 N.E.2d 1105 (1984), 516 N.E.2d 1055 (1987), 613 N.E.2d 412 (Ind. 1993).
We begin with the challenge to the conviction. Smith does not argue that the evidence that he committed murder was insufficient; the evidence was overwhelming. He complains about errors in the rulings at trial. Shortly after Resnover and Smith were arrested, Resnover told a newspaper reporter that he had "picked up a gun and fired some shots toward the front of the house" after Smith, already wounded, had said to him, "They're on the porch, get 'em off the porch." The reporter testified to this statement at trial. Smith claims that its admission without deletion of Smith's name violated the rule of Bruton v. United States, 391 U.S. 123 (1968), which forbids the admission of a codefendant's statement that inculpates the defendant. The claim fails because the statement did not inculpate Smith. His defense was not that he hadn't shot at the police. That would have been incredible. His defense was that he didn't know they were police. He thought that they were housebreakers, and he and Resnover were trying to defend themselves. Resnover's statement to the reporter was consistent with that defense.
Smith's principal challenge to his conviction is based on remarks by the prosecutor in closing argument. Two of the remarks had racial overtones. This is especially troubling because the defendants were black, while the victim of the murder, the judge, the prosecutor, and the entire jury were white. The prosecutor referred to a reluctant prosecution witness, a black woman, as "shucking and jiving" on the stand, by which he meant she was lying. And he referred to Smith's conduct during the melee as Smith's acting like "super-fly." There is no place in a criminal prosecution for gratuitous references to race, especially when a defendant's life hangs in the balance. Elementary concepts of equal protection and due process alike forbid a prosecutor to seek to procure a verdict on the basis of racial animosity. United States v. Doe, 903 F.2d 16, 24-25 (D.C. Cir. 1990). But reversals on this ground are rare; Doe is the only reported appellate case in the last fifteen years.
Race occupies a special place in the modern law of constitutional criminal procedure; and whether rightly or wrongly is not for us to say. The normal rule of harmless error is relaxed in two areas--the use of peremptory challenges, and the composition of the grand jury--when the error involves racial prejudice. Tyson v. Trigg, 50 F.3d 436, 442 (7th Cir. 1995), citing cases. This approach has not been generalized across the entire landscape of procedural errors involving racial prejudice, however, or extended to racial references more aptly described as insensitive than as bigoted. The cost in judicial and prosecutorial resources that would be consumed in retrials designed to vindicate an abstract principle rather than to prevent the conviction of a possibly innocent defendant has been thought too high. The cases hold that one or two isolated references to race or ethnicity, wholly unlikely to sway a jury, do not compel a new trial on federal constitutional grounds when the defendant's guilt is established by overwhelming evidence. United States v. Hernandez, 865 F.2d 925, 927-28 (7th Cir. 1989); Russell v. Collins, 944 F.2d 202, 204 n. 1 (5th Cir. 1991) (per curiam); Willis v. Kemp, 838 F.2d 1510, 1522-23 (11th Cir. 1988).
It is not even certain, turning to the specifics of the present case, that the reference to the witness's "shucking and jiving" was racial in character. Cf. United States v. Weiss, 930 F.2d 185, 196 (2d Cir. 1991); United States v. Lively, 817 F. Supp. 453, 463-64 (D. Del.), aff'd without opinion, 14 F.3d 50 (3d Cir. 1993). The phrase is Negro dialect, A New Dictionary of American Slang 388 (Robert L. Chapman ed. 1986); Geneva Smitherman, Black Talk: Words and Phrases From the Hood to the Amen Corner 205 (1994), but numerous words and phrases of that dialect, just like Yiddishisms such as schnorrer and chutzpah, have become absorbed into standard English and are now applied to members of all racial and ethnic groups. Examples from Smitherman's book include "badmouth," "boss" (as an honorific), and "Saturday night special." But we do not know whether "shucking and jiving" is one of these "crossover" terms, and while it was his own witness ...