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Harmon v. McVicar

September 11, 1996

CARL HARMON, JR., PETITIONER-APPELLANT,

v.

RICHARD D. MCVICAR, WARDEN, RESPONDENT-APPELLEE.



Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 94 C 7395 Marvin E. Aspen, Chief Judge.

Before BAUER, CUDAHY, and EASTERBROOK, Circuit Judges.

BAUER, Circuit Judge.

ARGUED JUNE 4, 1996

DECIDED SEPTEMBER 11, 1996

In a Chicago gang battle of Vice Lords and Stony Hoods versus Black Mobsters, Kevin Jackson lost his life. Carl Harmon, among others, was convicted of his murder. Harmon now appeals the district court's denial of his 28 U.S.C. sec. 2254 petition for a writ of habeas corpus. We affirm.

Background

After a jury convicted him of murder, battery, and mob action, Harmon appealed unsuccessfully in the Illinois state courts, People v. Harmon, 194 Ill.App.3d 135, 550 N.E.2d 1140 (Ill.App. 1 Dist.), appeal denied, 132 Ill.2d 550, 555 N.E.2d 380 (1990), and then filed a petition for habeas relief in federal court.

On August 20, 1983, Harmon attended a party in Evanston with David Thomas, Tyrone Patterson, and Juan McCune. Harmon, Thomas, and Patterson were members of the Vice Lords. McCune was a member of the Stony Hoods, a gang aligned with the Vice Lords. After the party, the four walked toward the 1623 Club, a hangout for the rival Black Mobster gang. On the sidewalk outside the club, the four jumped and beat up two Black Mobsters, Melvin Smith and Andre Brown.

The four then went to Thomas' house, where they sat talking until Kevin Jackson, another Black Mobster and the eventual murder victim, drove up. As Jackson got out of the car, the four men jumped him. Jackson swung at Patterson and then fell to the ground. Harmon kicked Jackson in the head and side for approximately 10-15 minutes, forcing Jackson's head against the curb. The four then put Jackson in the backseat of the car, drove to the dead end of Dewey Street, and dragged him out of the car, pushing his face into a puddle. As Jackson struggled for air, Harmon said, "get up or die."

Nancy and Laquita Adams testified that at the time these events transpired, they were looking out the front window of their Dewey Street home. They saw a parked car outside, heard thumping and slapping noises, and saw some men hitting something. They identified one of the men as David Thomas. About ten minutes later, they saw that same car pull up by the driveway. A man got out, walked alongside the house, and got back in the car. As the car travelled north, Nancy heard some shots being fired.

Police later recovered the car with a bullet hole in the rear window, a brownish-red stain on the back seat, and ten latent fingerprints. Officer Michael Gresham, an Evanston Police gang crimes investigator, testified that Jackson's body was found with the left leg crossed over the right, and with the hands extended over the head in the "V" shape which he recognized as a Vice Lord "calling card." Officer Gresham also had known Harmon for six or seven years and believed him to be a member of the Vice Lords. Gresham testified that the top hat, cane, and V.L. initials that Harmon has tattooed on his right arm are all Vice Lord symbols. On his left arm is tattooed "Mojack," which means "enforcer."

At trial, but outside the presence of the jury, the State informed defense counsel of its intention to call Patterson and Thomas as witnesses. The defense objected on the ground that both intended to invoke their Fifth Amendment right against self-incrimination. The trial court thereafter permitted the State, in front of the jury, to indicate its desire to call both men as witnesses, but then instructed the jury that the State was precluded from calling the accomplices as witnesses.

The defense case included testimony from Evanston Police Officer Mitchum that Andre Brown initially told him that only Patterson had hit him in the altercation in front of the 1623 Club. The defense also presented the testimony of a forensic scientist that none of the prints on the car matched Harmon's. The defense also presented evidence that Nancy Adams saw only three people outside the house but Laquita Adams originally saw five or six people.

The jury returned guilty verdicts on each count, and the court sentenced Harmon to 40 years imprisonment for the murder of Kevin Jackson, thirty days each for mob action against Andre Brown and Melvin Smith, and 364 days each for the battery of Brown and Smith. Harmon has raised the same three arguments in the Illinois Appellate Court, the district court, and this court in pursuit of post-conviction relief: 1) the trial court erred in joining the offenses of mob action, battery, and murder; 2) the State did not prove him guilty of murder beyond a reasonable doubt; and 3) the trial court erred in permitting the State to call certain ...


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