Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 95 C 601 Brian Barnett Duff, Judge.
Before BAUER, FLAUM and DIANE P. WOOD, Circuit Judges.
ARGUED SEPTEMBER 27, 1996
A jury convicted Petitioner Sylvester Abrams of first degree murder, and the Appellate Court of Illinois affirmed his conviction on direct appeal, People v. Abrams, 631 N.E.2d 1312 (1994). Abrams subsequently filed a petition for writ of habeas corpus in federal district court. The district court denied his petition, Abrams v. Barnett, No. 95 C 601, 1995 WL 758405 (N.D. Ill. Dec. 18, 1995), and Abrams now appeals, alleging (i) that his Sixth Amendment right to effective assistance of counsel and his Fourteenth Amendment right to testify were violated when the trial court prohibited him from consulting privately with counsel during a noon-time recess in the trial; (ii) that the use of a suggestive identification procedure by police denied him due process in violation of the Fourteenth Amendment; and (iii) that various evidentiary rulings made by the trial judge violated his Fourteenth and Sixth Amendment rights. We conclude that Abrams' constitutional rights have not been violated and therefore affirm the judgment of the district court.
Because this case comes to us on petition for writ of habeas corpus, this court must accept the factual findings of the state trial and appellate courts as true. 28 U.S.C. sec. 2254(e)(1) (1996); *fn1 Sumner v. Mata, 449 U.S. 539, 547 (1981); Mills v. Jordan, 979 F.2d 1273, 1279 (7th Cir. 1992). The following facts are taken from the state appellate court opinion and from the trial record.
At trial, two witnesses testified to having seen Abrams shoot Leroy Williams on January 3, 1990. The first of these witnesses was Jennifer Williams, the victim's sister. Jennifer was standing in the entryway of her aunt's apartment watching her brother load boxes into his car when she noticed a group of seven males huddled on the street corner. She recognized one of these men as the petitioner, whom she knew by the nickname "Dusty." Jennifer had an unobstructed view of Abrams from where she was standing approximately 50 or 60 feet away. She saw him fire two shots at her brother, run around the building toward the alley, and then fire three more shots at Leroy, fatally wounding him. Abrams was wearing a "Christmas green" jogging suit at the time.
Jennifer told the police when they arrived on the scene that "Dusty" had shot her brother. She testified that she provided no description of the assailant to any officer with whom she spoke at the scene. Later that night, the police took Jennifer to the station. She was told that she would view a lineup in order to identify the suspected murderer. Police led her into a room with a window that exposed another room where the petitioner was seated at a table by himself.
Jennifer denied on cross-examination that the police had warned her beforehand that the petitioner would be in the room. However, Detective Mike Miller, the officer who arrested the petitioner, responded affirmatively on crossexamination when asked whether he had informed Jennifer beforehand that she would be seeing Abrams. Miller explained that a lineup was not employed in this case because there was no question that Jennifer knew the identity of the shooter. Because the purpose of the identification would be to exclude the petitioner, if possible, a lineup would be a waste of police resources. Officer Williams also testified that, when he went to Abrams' home to arrest him, Abrams attempted to slam the door, ran for the back of the apartment, and had to be wrestled to the ground by the police.
Jennifer had known Abrams for approximately five years prior to the shooting and had seen him in the neighborhood nearly every day in those five years. They were fairly well-acquainted and had played cards together. She testified that the petitioner was dark-skinned and approximately 260 pounds at the time of trial, but described him as "lighter," weighing approximately 160 pounds at the time of the shooting. This testimony was contradicted by that of Detective Miller, the arresting officer, who described the petitioner as weighing approximately 260 pounds at the time of his arrest. Jennifer was also acquainted with three of petitioner's brothers, including his brother Jimmy, with whom she went to school. She described Jimmy as shorter than the petitioner, with a light-brown complexion and curls in his hair.
Officer Bruce Brady testified that while he was on patrol on January 4, 1990 he observed a man being followed by a group of men wielding baseball bats. The group of men shouted that the man they were pursuing was carrying a gun. Officer Brady arrested the man and, in the course of a custodial search, recovered a .38 caliber revolver. The officer later learned that the arrestee was Jimmy Abrams, petitioner's brother. Ballistics reports revealed that the .38 that was recovered was the weapon used to kill Leroy. At the time of his arrest, Jimmy was 5 feet 5 inches and weighed 145 pounds.
Chicago police officer Consuelo Morgan and her partner were the first officers to arrive at the scene. Morgan questioned the persons who had gathered around the body of the victim. Her report indicates that she was given a description of the perpetrator as being 5 feet 6 inches and 185 pounds. She testified that she had written the names of some of the witnesses with whom she spoke but omitted others "because they were afraid to speak." The defendant objected to this statement. The trial judge sustained the objection and ordered the response stricken but denied Abrams' motion for a mistrial. Morgan testified that Jennifer did not give a description of the shooter because she was in shock, but that Jennifer did identify the shooter as "Dusty." Detectives John McKenna and Dave Delponte, who were assigned to investigate the murder, filed a report at the end of their shift in which the perpetrator was described as 5 feet 6 inches and weighing 160 pounds.
The second witness who testified to having seen the defendant shoot Leroy was Nakita Bailey, the victim's cousin. Nakita had an obstructed view from the front window of her third floor apartment of the street and saw "Dusty" fire two shots at Leroy, disappear for about a minute, and then fire three more shots. When she first saw the petitioner, he had been standing on the street corner wearing a green jogging suit. Nakita had been aware of who the petitioner was for approximately three years prior to the shooting. On cross-examination, after being reminded that she had not told anyone what she had witnessed until almost two years after the shooting, she explained that she decided to tell Jennifer what she had witnessed after Jennifer complained to her that no one had come forward to testify against the defendant. On redirect examination, after being asked why she had not come forward earlier, she stated, "I was afraid the gang members would do the same to me." The trial judge overruled Abrams' objection to this answer.
Near the close of the state's case, the court allowed a two-hour recess for lunch. When court reconvened, defense counsel objected to the conditions under which he was permitted to speak with the petitioner ...