including identifying the weapon that Gonzalez put under his hoodie as a 9 millimeter gun. He also confirmed that he and the other three men involved in these events were Latin Kings, and that Gonzalez is his uncle.
According to Cruz, after leaving Bello's apartment, the four men drove to an empty lot near North and Kimball Avenues, where Maysonet parked the car and Gonzalez and Hernandez got out and walked toward the corner. In a statement taken by an assistant state's attorney in August 1990, Cruz indicated that after parking the car, all four men had "hooded up, meaning they put the hoods from their sweatshirts on their heads." Cruz testified that he saw two African-American men standing at the corner as petitioner and Hernandez approached. After Gonzalez and Hernandez conversed with these men for approximately five or ten minutes, Cruz testified that he heard between four and six gunshots fired in rapid succession. Immediately thereafter, Cruz stated that he saw Hernandez and petitioner running back toward the car. He also testified that he saw one of the men with whom they had been conversing on the ground. According to Cruz, when petitioner and Hernandez reached the car, petitioner said, "Let's get out of here. We just shot two guys." Cruz testified that the four men then jumped into the car and drove away.
Petitioner took the stand in his own defense, claiming that he was with Maysonet, Hernandez and Cruz on the night in question but that he had nothing to do with the attempted drug deal or the murders. He testified that as he was walking home at approximately 12 p.m. on March 25, he saw a blue car driven by Maysonet, Hernandez and Cruz, his fellow Latin Kings members. Gonzalez testified that the men agreed to give him a ride home. After getting into the car, however, Gonzalez testified that Maysonet drove to the alley between St. Louis and Kimball Avenues, without stopping, pulling a 9 millimeter gun from under the car seat at some point along the way. After parking in the alley, Gonzalez testified that the other three men jumped out of the car while he remained inside, and that Maysonet and Hernandez put their hoodies on, which indicated to Gonzalez that they were going to kill somebody or something. Gonzalez testified that after the men had walked away from the car and out of eyesight, he heard five or six shots, and soon thereafter saw the other men return to the car. He testified that as they drove away, he saw two bodies on the side of the street.
Gonzalez was found guilty of both counts of murder and sentenced to natural life imprisonment. The Illinois Appellate Court affirmed the conviction, People v. Gonzalez, 265 Ill. App. 3d 315, 637 N.E.2d 1135, 202 Ill. Dec. 399 (N.E.2d 1135 (Ill.App. 1994), and the Illinois Supreme Court denied his petition for leave to appeal. Gonzalez now brings this petition for writ of habeas corpus.
I. Exhaustion and Procedural Default
We cannot grant a petition for habeas corpus relief unless the petitioner has first exhausted his state court remedies, 28 U.S.C.A. §§ 2254(b),(c), and avoided procedural default of his claims. Coleman v. Thompson, 501 U.S. 722, 115 L. Ed. 2d 640, 111 S. Ct. 2546 (1991). Respondent concedes that each of the issues raised in petitioner's habeas petition was raised in both the Illinois Appellate Court and the Illinois Supreme Court and that petitioner has exhausted his state court remedies. We agree.
With regard to procedural default, however, respondent's apparent concession does not end our inquiry. On direct appeal the Illinois Appellate Court clearly ruled that Gonzalez waived a number of his claims by failing to object to them at trial and/or in his post-trial motion.
People v. Gonzalez, 637 N.E.2d at 405, 407, 408. Although it went on to address the merits of each of the claims, there is no doubt that the Appellate Court intended Gonzalez's failure to make contemporaneous objections at trial to be a separate ground for denial of the claims.
Normally, this would end our inquiry since a state court's finding of procedural default precludes a federal district court's review when the state court clearly states that it bases denial of the appeal on that ground. See Coleman v. Thompson, 501 U.S. 722, 115 L. Ed. 2d 640, 111 S. Ct. 2546 (1991) (procedural default is an independent and adequate state ground); Harris v. Reed, 489 U.S. 255, 103 L. Ed. 2d 308, 109 S. Ct. 1038 (1989) (same). Federal court review is similarly precluded when the state court explicitly addresses in the alternative the merits of the defaulted claims, as the Illinois Appellate Court did here. See Rogers-Bey v. Lane, 896 F.2d 279, 282 (7th Cir. 1990), cert. denied, 498 U.S. 831, 112 L. Ed. 2d 65, 111 S. Ct. 93 (1990). In the usual case, then, Gonzalez's claims would be barred unless he could show "cause and prejudice" for his procedural default, or that the denial of his petition would constitute a gross miscarriage of justice. See Wainwright v. Sykes, 433 U.S. 72, 53 L. Ed. 2d 594, 97 S. Ct. 2497 (1977); Murray v. Carrier, 477 U.S. 478, 91 L. Ed. 2d 397, 106 S. Ct. 2639 (1986).
Here, however, the state has not objected to Gonzalez's procedural default in its answer, a circumstance which permits our review of the merits of petitioner's claims. In Henderson v. Thieret, the Seventh Circuit held that although "a district court is permitted ... to raise a [procedural default] defense sua sponte, the court is not permitted to override the state's decision implicit or explicit ... to forego that defense." 859 F.2d 492, 498 (7th Cir. 1988), cert. denied, 490 U.S. 1009, 104 L. Ed. 2d 163, 109 S. Ct. 1648 (1989). In this case the state arguably made a knowing and deliberate waiver of its procedural default defense. Although its answer liberally cites to the Illinois Appellate Court decision, the state refers only once to Gonzalez's failure to object at trial (p.4), and never argues default based on the state court's decision. While the Henderson respondent asserted the defense on some claims but not others, implying that its waiver of the latter claims was deliberate id. at 497-98, the respondent's omissions in this case are so glaring that we can only assume they were also intentional.
Regardless, even if the state's waiver was inadvertent, we would decline to raise the issue on our own motion. See Galowski v. Murphy, 891 F.2d 629, 634 n.11 (7th Cir. 1989) (decision whether to consider the merits depends on comity and judicial efficiency principles), cert. denied, 495 U.S. 921, 109 L. Ed. 2d 315, 110 S. Ct. 1953 (1990). While the parties have fully briefed the merits of petitioner's claims, neither has addressed whether Gonzalez had "cause and prejudice" to fail to make contemporaneous objections. Thus, resources would not be expended fruitlessly by addressing the merits. Furthermore, since the Illinois Appellate Court engaged in a full analysis of the merits of each of the claims that it found to have been procedurally defaulted, we can ensure that state substantive law at least is accorded proper deference in our review.
II. Due Process Claims
Petitioner asserts that the cumulative and individual impacts of a number of allegedly prejudicial evidentiary errors of constitutional magnitude deprived him of his due process right to a fair trial. State evidentiary rulings, however, rarely should be the basis for granting habeas relief since the admission of evidence is a matter within the broad discretion of the trial judge. Cramer v. Fahner, 683 F.2d 1376, 1385 (7th Cir. 1982), cert. denied, 459 U.S. 1016, 74 L. Ed. 2d 509, 103 S. Ct. 376. Federal review of state evidentiary rulings under § 2254 is limited to where error results in a denial of a specific constitutional right or is of such magnitude as to result in a denial of fundamental fairness. United States ex rel. Clark v. Fike, 538 F.2d 750, 757 (7th Cir. 1976), cert. denied, 417 U.S. 976 (1974). When a petitioner claims that an error violated his general right to a fair trial, more than a showing of mere prejudice is required; the petitioner must demonstrate that any resulting prejudice amounted to the likelihood that an innocent person was convicted. See Thompkins v. Cohen, 965 F.2d 330, 333 (7th Cir. 1992) ("severely prejudicial harm" must be shown); Cramer v. Fahner, 683 F.2d at 1385 (error must be "'material in the sense of a crucial, critical, highly significant factor (in the outcome of the case)'") (citation omitted).
Here, Gonzalez argues that each of the evidentiary errors alleged in his petition was significant. Since the state relied mainly on the testimony of two witnesses, Bello and Cruz, who arguably had motivations to fabricate their testimony, Gonzalez contends that the state's case was relatively weak and that any prejudice from evidentiary error was prone to tip the balance against him. While we agree that one of the trial court's evidentiary rulings was erroneous and prejudicial, the extent of the prejudice did not violate petitioner's constitutional rights.
A. Photographs of the Deceased
Petitioner contends that the trial court erroneously admitted into evidence a number of close-up photographs of the decedents and that the error was so fundamentally unfair as to deprive him of a fair trial. We agree that the photographs were improperly admitted into evidence, but find that the error did not deprive petitioner of due process. In Illinois, photographs of murder victims may be admitted to corroborate oral testimony even when the cause of death or nature of the injuries is uncontested, as it was here. See People v. Speck, 41 Ill. 2d 177, 242 N.E.2d 208, 222 (Ill. 1971), vacated in part on other grounds, 403 U.S. 946. "As long as the photographs have sufficient probative value, they are admissible despite their gruesome and inflammatory nature." People v. Hopkins, 160 Ill. App. 3d 967, 513 N.E.2d 1011, 1015, 112 Ill. Dec. 402 (Ill.App. 1987) (admission proper where cause of death, identification of victim, and nature of crime were not in dispute, since the photographs corroborated testimony and showed the manner in which the wounds were inflicted and the willfulness of the act). However, where the photographs "serve only to inflame the passions of the jury," their prejudicial effect outweighs their probative value and admission is improper. See People v. Lindgren, 68 Ill. App. 3d 141, 386 N.E.2d 87, 91, 24 Ill. Dec. 883 (Ill.App. 1979) (photographs of genital amputation and leg lacerations were improperly admitted where pathologist had given extensive oral testimony about the wounds).
Appraisals of the probative and prejudicial value of evidence are entrusted to the sound discretion of the state trial court judge, and a federal court considering a habeas petition must not disturb the appraisal absent error of a constitutional dimension. See Cramer v. Fahner, 683 F.2d at 1385. At the outset, however, we note our agreement with the Illinois Appeals Court in finding the photographs at issue to have been admitted improperly:
In this case, the record contains testimony about the nature of the wounds and the cause of death of the decedents. The record indicates that defendant objected to all of the photographs that tended to show in detail the injuries inflicted upon the decedents. The photographs to which defendant objected were both grisly and cumulative of the testimony in this case. For example, it is difficult to understand how a photograph showing the gunshot wound to a victim's penis explains the testimony describing the wound. While the State's argument that the exclusion of photographs depicting a brutal crime may render a trial antiseptic and prevent the State from conveying the degree of brutality involved in a crime is not without merit, we conclude that the photographs in this particular case were clearly more inflammatory than probative of any fact or issue in this case. People v. Gonzalez, 637 N.E.2d at 407.