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Jones v. Page

February 9, 1996






Appeal from the United States District Court for the Southern District of Illinois, East St. Louis Division. No. 92 C 513--William D. Stiehl, Judge.

Before BAUER, COFFEY and KANNE, Circuit Judges.

COFFEY, Circuit Judge.



Andre Vernell Jones, an Illinois prisoner sentenced to death on murder charges, appeals from a judgment of the district court denying his petition for a writ of habeas corpus.

Jones and a co-defendant, Freddie Tiller, were indicted in the Circuit Court for St. Clair County, Illinois and charged with the killing of three individuals--Richard Stoltz, Samuel Nersesian, and Debra Brown--in East St. Louis, Illinois on April 30, 1979. The indictment alleged that the defendants acted "without lawful justification and with the intent to kill," in violation of the Illinois murder statute. Ill. Rev. Stat. ch. 38, para. 9-1(a)(1) (1979). The court accepted Jones's plea of guilty to all three counts of murder. On April 15, 1980, a jury sentenced Jones to death by electrocution on each of the three counts, pursuant to the Illinois death penalty statute, Ill. Rev. Stat. ch. 38, para. 9-1 (1979). The petitioner's convictions for all three murder counts were upheld on direct appeal to the Illinois Supreme Court, but the death sentence imposed for the murder of Stoltz was vacated.

After exhausting his available state-court appeals, which included his direct appeal to the Illinois Supreme Court and two unsuccessful petitions for post-conviction relief, Jones sought federal habeas corpus relief pursuant to 28 U.S.C. sec. 2254. The district court dismissed his petition on December 27, 1994. We affirm.


A. The Murders of Stoltz, Nersesian & Brown

The underlying facts are undisputed. Because the factual findings of a state trial or appellate court are presumed to be correct when reviewed in a federal court via a habeas petition, Sumner v. Mata, 449 U.S. 539, 101 S. Ct. 764, 66 L.Ed.2d 722 (1981) (interpreting 28 U.S.C. sec. 2254(d)), we incorporate the brief factual summary provided by the Illinois Supreme Court upon consideration of Jones's direct appeal in 1982:

The testimony and defendant's confession showed that on the morning of April 30, 1979, defendant left his apartment carrying a .22-caliber Rohm revolver. Defendant and his girlfriend [Laurie Elam] walked until they met with [Freddie] Tiller. The three of them walked until they saw an elderly man, Richard Stoltz, standing in the back of a pickup truck, stacking bricks. Tiller, stating that he was going to rob Stoltz, asked defendant for his gun. Defendant gave his gun to Tiller, who told Stoltz, "This is a stickup." Stoltz raised his hands, and Tiller fired the gun, striking Stoltz in the left eye. Tiller then took a wallet, keys and a wrist watch from Stoltz' body. Defendant and Tiller rejoined the girlfriend, who had crossed the street. They continued their walk until they arrived at the Illinois Cleaners, located across the street from Jones' apartment. The girlfriend left after being told by defendant to go home. Defendant then suggested that he and Tiller rob the cleaners, and Tiller agreed. Defendant and Tiller entered the store and, once inside, defendant shot the proprietor, Samuel Nersesian, in the head. He fell to the floor, and defendant shot him again. Defendant then opened the cash register and took an undetermined amount of money. As they were about to leave, a mail carrier, Debra Brown, who had arrived in a mail truck, entered the store. Defendant hid behind the door, and when Miss Brown entered, defendant grabbed her around the neck from behind. He pushed her back through a kitchen located at the rear of the business and into a storage room. There defendant knocked her down, shot her in the chest, and then shot her in the mouth. Defendant and Tiller then left the store. Tiller left the scene in the mail truck, and defendant walked across the street to his apartment. All three of the shooting victims died. People v. Jones, 94 Ill.2d 275, 281-82 (Ill. 1982), cert. denied, 464 U.S. 920, 104 S. Ct. 287, 78 L.Ed.2d 264 (1983) (Jones I).

B. Entry of Guilty Plea

Subsequent to the indictment of Jones and Tiller on June 8, 1979 for the murders of Stoltz, Nersesian, and Brown, a public defender was appointed and withdrew from the case on July 11, 1979, after which the court appointed Robert Gagen to represent the petitioner. Gagen was a former public defender who had also served as a judge in the criminal division of the St. Clair County Circuit Court. Before the plea proceedings in Jones's case, Gagen reviewed the investigative file of the prosecuting attorney, interviewed Jones's girlfriend (who was with him on the day of the murders), spoke with the attorney representing Jones's accomplice, and interviewed the police officer who took Jones's confession. Additionally, he met with his client numerous times. Gagen also contacted Cheryl Prost, a psychological consultant for the court who was counseling Jones. Prost informed Gagen that she believed the defendant was sane at the time of the offense and was also competent to stand trial. *fn1

After conducting this investigation, Gagen, calling upon years of experience both as an attorney and a criminal court judge, concluded that there was no factual defense to the murder charges and that an insanity or intoxication defense was untenable. On August 23, 1979, the petitioner, acting on Gagen's advice, withdrew an earlier not guilty plea and entered a plea of guilty to the three murder charges contained in the indictment. *fn2 At the time of this plea, the trial judge, John J. Hoban, advised Jones of his constitutional rights to a jury trial, the presumption of innocence, the state's obligation to prove his guilt beyond a reasonable doubt, the right to present a defense and to call witnesses, the right to remain silent, and the right to consult with an attorney. The court took pains to impress upon Jones the gravity of his situation and to make clear the potential consequences of a guilty plea:

THE COURT: Also for each one of these murders, if you enter a plea of guilty, I want you to understand that if certain factors are present, you could be sentenced to death, on each one of them. . . . [I]f the factors which are necessary . . . are present, I wouldn't hesitate to sentence you to death.

* * *

THE COURT: So if there's any thought in your mind that by pleading guilty I might give you natural life, I want to erase that thought from your mind. Because if they prove the factors . . . I won't hesitate to sentence you to death. You understand that?


* * *

THE COURT: Now, is there any question that you want to ask me at this time, anything that you don't understand just ask me and I will answer it to the best of my ability.

THE DEFENDANT: Yes, sir. Well, there's one thing, if I understood [State's Attorney] Mr. Kuehn correctly, he said that the death penalty will be asked for even on a plea of guilty, if I'm not mistaken.

THE COURT: That's correct.

THE DEFENDANT: I understand the natures of the offenses which I have been charged with. That's it sir.

The court also explored whether improper coercion or promises had influenced Jones's decision to plead guilty:

THE COURT: Has anyone used any threats to get you to come in here and indicate through your attorney that you would enter a plea of guilty, anybody threaten you or said, if you do it we'll let you do this, we'll recommend that. Any kind of promises or threats whatsoever? Did anyone make them to you?


When the court asked Jones if Gagen had advised him of his rights and if he thought Gagen had represented him "in a proper way," the defendant replied in the affirmative.

C. Jones's Confession to the Wallace Double Murder

On August 30, 1979 (after Jones entered his guilty plea but before sentencing), Detective Robert Miller of the St. Clair County Sheriff's Office interviewed Jones at the county jail to determine whether he could provide information about any other unsolved crimes in the area. Miller informed Jones of his Miranda rights and Jones signed a written waiver of those rights at the outset of the interview (one and a half or two hours). While speaking to Miller, Jones reflected on his criminal record and observed that he had only been caught when a victim or a witness had survived to identify him. He stated that for this reason, he had resolved, the last time he was in the penitentiary, "that he would never be identified by a witness or victim again, that he would destroy them." Jones hinted that he had knowledge pertaining to several unsolved crimes, but provided little detail at this initial interview.

Acting on his own initiative, Jones on September 1, 1979 summoned Detective Miller to the jail and handed him a six-page, handwritten document confessing to the November 1978 murders of Michael and Dora Wallace in East St. Louis. The statement recounts decapitating Mr. Wallace and stabbing Mrs. Wallace before torching their house. Miller, who knew little about the Wallace murders at the time, left the jail without questioning Jones about the confession. However, he met with Jones "a couple of times after that concerning the statement." Jones provided specific details about the murders and the murder scene during the meetings that were conducted after he submitted his confession. The information Jones related during these meetings served to corroborate his handwritten statement. During the course of these conversations, the defendant arranged for an unidentified female to deliver to law enforcement officers the butcher knife used in the murder (knife subsequently identified as belonging to the Wallaces). The record is silent as to whether Jones was informed of his constitutional rights during any of the interviews subsequent to the meeting on September 1 (at which he handed his written confession to Detective Miller), nor does it reveal whether Jones provided information voluntarily or in response to follow-up questioning.

Gagen, who represented Jones as of August 23, 1979, was not present for any of the interviews concerning the Wallace homicides. The record indicates that Gagen had no knowledge of the Wallace murders or of Jones's confession until after the confession had been delivered to Detective Miller. Gagen testified that "it seemed like every time I went back to the jail I was given another confession to some other crime or murder or series of murders that Mr. Jones was confessing to. *fn3 I talked to the deputies and asked them not to talk to the defendant, but I was told . . . that if any defendant wanted to talk to them, as long as he was Mirandized, that they felt they had a right to talk to him, because they would not talk to him about the incidents that I was representing him on, but these were completely different matters."

D. Sentencing

On August 28, 1979, the court accepted Jones's pleas of guilty to the three counts of murder in the indictment, entered a judgment of guilty on all three counts, and ordered a pre-sentence investigation report. On October 5, 1979, the court conducted a hearing on Jones's motion to waive his right to have a jury determine his sentence for the murders of Stoltz, Nersesian, and Brown. *fn4 Jones testified that he wished to proceed without a jury, although he was well aware that the judge could sentence him to death. Again, Judge Hoban was careful to establish, for the record, through his questioning and Jones's responses, that the defendant fully understood his waiver decision and that no one had used any threats or promises to induce his decision to waive jury sentencing.

On October 11, 1979, Gagen moved for a continuance of the sentencing hearing and for an independent psychiatric evaluation of his client (prompted by Jones's recent revelations concerning the brutal slayings of the elderly Mr. and Mrs. Wallace). Pursuant to the court's order, Jones was evaluated by Peter P. Heinbecker, M.D., a psychiatrist who concluded in late November 1979 that the defendant was sane at the time of the murders of Stoltz, Nersesian, and Brown. *fn5 Heinbecker did not express an opinion as to whether Jones was sane at the time of the Wallace murders (nor was he specifically asked to do so, as far as the record reveals). Jones told Heinbecker that he had killed "thirteen or fourteen people" and asserted that "when he was killing someone he had this experience of hearing [a] voice or voices telling him to hurt or kill." Jones would not discuss these other murder incidents with Heinbecker in any detail, nor did he indicate to Heinbecker when they occurred. Heinbecker expressed skepticism over Jones's claim to have heard voices while killing. *fn6

On April 14-15, 1980, a jury sentenced Jones to death on each of these three murder counts, pursuant to the Illinois death penalty statute. Ill. Rev. Stat. ch. 38, para. 9-1 (1979). That statute confers a right to sentencing by jury in capital murder cases, but also allows the defendant to waive jury sentencing. As we pointed out earlier, initially Jones opted to waive jury sentencing and be sentenced by Judge Hoban; the record is silent as to what caused him to change his mind later and request sentencing before a jury. During the sentencing hearing, the State introduced evidence of aggravating factors, including Jones's criminal history and his confession of the Wallace murders. Although Gagen moved to exclude Jones's confession to the Wallace murders on the basis that it had been obtained in violation of the Sixth Amendment, the judge denied the motion and admitted the confession in evidence, along with the knife given to police as well as testimony concerning the Wallace murders from the St. Clair County coroner and an East St. Louis police officer. Jones did not testify, although Gagen stated for the record (outside the presence of the jury) that the defendant's decision not to take the stand was contrary to his advice. The defense rested without presenting any mitigating evidence, but Gagen did make a closing argument on behalf of ...

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