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RICHARDSON v. BRILEY

February 9, 2004.

FLOYD RICHARDSON, Petitioner,
v.
KENNETH R. BRILEY, Warden, Pontiac Correctional Center, Respondent.[fn1]



The opinion of the court was delivered by: MATHEW KENNELLY, District Judge

*fn1 At the time he filed his petition, Richardson was incarcerated at Pontiac Correctional Center and thus named Pontiac's warden, James M. Schomig, as respondent. Richardson was subsequently transferred to Stateville Correctional Center. Stateville's warden, Kenneth R. Briley, is substituted as the respondent.

MEMORANDUM OPINION AND ORDER

In May 1982, Floyd Richardson was charged with the April 1, 1980 armed robbery and murder of George Vrabel, a clerk at Twin Food and Liquors on the south side of Chicago. Richardson was convicted by a jury and was sentenced to death by the trial judge after waiving his right to a jury at the penalty phase of his trial. It took Richardson a full eighteen years to exhaust Illinois' appeal and post-conviction process. His death sentence was commuted on January 2003 to a sentence of life without parole.*fn2 Today the Court grants Richardson's petition for a writ of habeas corpus, finding that Page 2 his conviction was tainted by intentional deception on the part of the prosecution that successfully tricked Richardson into deciding not to call a key eye witness who would have said that Richardson was not the man who robbed and murdered George Vrabel.

  Background

  At 10:00 p.m. on April 1, 1980, a man entered Twin Foods and Liquors located at 2251 East 79th Street in Chicago, fatally shot store clerk George Vrabel, and escaped out the store's front door. Four nights later, on April 5, 1980, a man robbed a tavern located approximately one mile from Twin Foods. The robber shot and wounded tavern owner Thomas Fitzpatrick and fled.

  Over two years later, on May 4, 1982, Chicago police officers responded to a call regarding a robbery in progress at 1640 East 79th Street. They arrested Richardson, who was seen near the scene of the robbery and matched the description of the suspect. After Richardson's arrest, detectives reopened the investigation into the Vrabel murder. Detectives John Solecki and Joseph DiGiacomo assembled a series of photographs of men roughly fitting the description of the suspect in Vrabel's murder, including Richardson's picture in the photo array. The detectives then showed the photo array in black and white — and later in color — to witnesses of the two 1980 robberies. Some of the witnesses also viewed a line-up. Several witnesses identified Richardson as the perpetrator of the April 1980 robberies, and Richardson was charged with the murder of George Vrabel. Page 3

 Evidence at Trial

  In April 1984, Richardson stood trial before then-Circuit Court of Cook County Judge George Marovich and a jury for the Vrabel murder and armed robbery. The prosecutors were Assistant State's Attorneys Henry Lazzaro and Jack Hynes, and the defense attorneys were Assistant Public Defenders Ronald Babb and Joseph McElligott.

  Store clerk Shirley Bowden testified that at approximately 10:00 p.m. on April 1, 1980, she was working at Twin Foods when she noticed a man enter the store. The store was empty, except for five clerks and one other customer. Bowden testified that she noticed the man because, though it was not cold outside, he was "huddled up" with his coat collar turned up. The man walked within four feet of Bowden as he made his way back into the liquor department where George Vrabel worked as a clerk. Bowden then heard a shot, followed by the warning, "Stay down mother f----r. This is a stickup. Stay down." Bonnie Williams, another employee of the store, testified that she was told someone was robbing the store and then ducked behind the counter, getting up when she heard a shot. Both women looked toward the liquor department in time to see a man taking money out of the cash register. The man fled the liquor department and ran out the front door of the store, passing both Bowden and Williams. After the gunman left, Bowden contacted the police and went to the liquor department. She found Vrabel lying on the floor bleeding.

  Bowden identified Floyd Richardson as the individual who committed the April 1, 1980 robbery and murder. She had not previously viewed a lineup or photo array. She stated that prior to April 1, she had seen Richardson in the neighborhood, though she conceded on cross examination that she had not reported that when interviewed by the police. Bonnie Williams testified that in the summer Page 4 of 1982, police detectives came to her home and showed her a set of black and white photos. She identified Richardson as the person who ran out of Twin Foods in April 1980. She also picked Richardson out of a color photo array shown to her at a later date. Richardson was the only person whose picture was in both arrays. At trial, Williams also identified Richardson as the gunman. She testified she had seen him once "in passing" before the murder.

  The prosecution was permitted to introduce evidence regarding the April 5, 1980 tavern robbery based on ballistics evidence linking the two crimes. Specifically, Ernest Warner, a firearms examiner for the Chicago Police Department, testified that he examined bullets recovered from both the Twin Foods robbery and murder and from the April 5 tavern robbery. He concluded that the bullets all had been fired from the same gun, as they had the same class and individual characteristics.

  Thomas Fitzpatrick, the victim of the April 5 robbery, testified for the prosecution. He stated that around 1:30 a.m. on April 5, 1980, he was in his tavern located at 7159 South Exchange Street in Chicago, approximately one mile from the location of George Vrabel's murder four nights earlier. As he was standing at the cash register, a man entered the tavern, waving a gun. The man said "this is a stickup" and jumped over the bar, shooting Fitzpatrick in the back when he tried to run. As Fitzpatrick lay on the ground face up, the assailant stood over him and demanded to know where the rest of the money was, but he then departed when Fitzpatrick told him there was no more money. Fitzpatrick testified that in May 1982, he tentatively identified Richardson as the gunman after viewing a photo array shown to him by police detectives. He then viewed a lineup and positively identified Richardson as the man who shot him. Fitzpatrick also identified Richardson in court as his assailant.

  Tavern patron Ray Slagle also testified that he observed the robber on April 5. He testified that Page 5 he picked Richardson's picture out of a photo array shown to him by police in September 1982 and identified Richardson from an in-person lineup on October 5, 1982. Slagle identified Richardson at trial as the robber.

  The defense called detective John Solecki as a witness. Solecki testified that after interviewing witnesses to the Vrabel shooting, he sent a flash message from the scene describing the suspect as having a "full, trimmed beard."

  At this point, Richardson's attorneys advised the trial judge that it was "possible" that they had another witness, and the judge excused the jury for a brief recess. The transcript of the trial reflects that the following colloquy then took place:
THE COURT: Mr. McElligott and Mr. Babb, you indicated to me that you had another witness?
MR. BABB: Possible. THE COURT: We will recess at this time.
(Whereupon, a short recess was taken.)
MR. LAZZARO: Your Honor, I just want to raise, on the record, that which has occurred in the last 20 or 25 minutes or so. Listed in a supplemental answer to discovery, which we gave to Counsel, was a name of a Floyd Butler that actually is Lloyd Butler. It's a typographical error and his real name is, in fact, a Leonard Butler. He just goes by the name of Lloyd. I have informed Counsel as to certain statements that Mr. Butler will give in rebuttal, if Myron Moses is called.
  He would deny telling Mr. Butler that shortly, within a matter of hours after the incident, that shortly within a matter of hours after the incident, that the person coming out the door was, in fact, Floyd Richardson, and I've informed Counsel that is the rebuttal testimony that I expect as to Mr. Butler. I have informed him that Mr. Butler is, in fact, employed by the Rosemont Police Department and they can contact him there, if Page 6 they have any questions.
 
I just want the record to show I'm, in fact, giving them that information if, in fact, Myron Moses is called as a witness. Is that correct, Counsel?
MR. BABB: Except, we don't intend to put him on to deny anything. We intend to put him on for the purpose of saying he knew Floyd Richardson and that was not Floyd Richardson that came out of there with a gun.
THE COURT: At which point, the cross examination —
MR. LAZZARO: Would be as to what he spoke to Mr. Butler, and I want the record to reflect that is the information that has been given to me by Mr. Butler.
MR. BABB: And also, to be fair, Mr. Moses has been confronted with that, in our presence, and he denies that he said that to Mr. Butler, who is a brother of his girlfriend.
MR. LAZZARO: This is in the nature of further discovery. The believability, the voracity [sic] is for the jury.
THE COURT: It's for somebody other than those of us who are in the room.
MR. BABB: We are simply not going to put him on today. We want to talk to Mr. Butler.
THE COURT: What do you want me to do as far as this jury is concerned?
MR. BABB: Send them home.
Trial Tr. 631-33.*fn3 The trial judge recessed the trial for the day.

  The next morning, following a conference regarding jury instructions, the defense called Page 7 Richardson's mother to testify; she stated that Richardson never had a full beard, only a mustache and a goatee. The defense then rested without calling any additional witnesses. The record does not reflect any further discussion regarding Myron Moses, Leonard Butler, or the previous day's colloquy about them.

  The jury found Richardson guilty of murder and armed robbery. Richardson had waived his right to a jury at the penalty phase. The prosecution offered evidence regarding Richardson's two prior convictions for armed robbery, as well as his prior convictions for felony theft, possession of a controlled substance and unlawful use of a weapon. The prosecution also offered evidence regarding seven arrests on charges that were subsequently dismissed. It also offered evidence regarding the May 4, 1982 attempted robbery committed by Richardson that had led to his arrest. Finally, the State presented evidence that Richardson had struck a correctional officer while incarcerated.

  The defense offered mitigation evidence via testimony from Richardson's common law wife and his mother. Richardson's mother testified that after her husband's death when Richardson was a teenager, he helped look after his brothers and sisters. Richardson's wife testified that he loved her and that he tried to make a better life for her and their two children. Richardson also took the stand and denied shooting either Vrabel or Fitzpatrick.

  After hearing the evidence, on May 10, 1984, the trial judge imposed a sentence of death. Richardson's conviction and sentence were affirmed by the Illinois Supreme Court on direct appeal in 1988, People v. Richardson, 123 Ill.2d 322, 528 N.E.2d 612 (1988), and his petition for writ of certiorari was denied by the United States Supreme Court in March 1989. Richardson v. Illinois, 489 U.S. 1100 (1989). Page 8

 Post Conviction Proceedings

  On January 7, 1991, Richardson filed a timely petition for relief pursuant to the Illinois Post-Conviction Hearing Act, 725 ILCS 5/122-1. In the petition, Richardson alleged that his trial counsel had rendered ineffective assistance by, among other things, failing to object to the prosecution's use of its peremptory challenges to excuse prospective jurors who were black, failing to call Myron Moses to testify that Richardson was not the assailant, and failing to present significant mitigation evidence at the sentencing hearing. Richardson also raised the peremptory challenge issue on its own merits, arguing that the prosecution had violated Batson v. Kentucky, 476 U.S. 79 (1986). He also alleged that his appellate counsel had been ineffective for failing to raise various points on direct appeal. The trial court dismissed the petition in March 1997 in a lengthy written order but without holding an evidentiary hearing.

  On appeal to the Illinois Supreme Court, Richardson raised the Batson issue and claims regarding his counsel's effectiveness with regard to sentencing. His only mention of his other claims was in the form of a generalized argument that the trial court had erred in dismissing the petition without holding a hearing. The Illinois Supreme Court affirmed the trial court's ruling in 2000, People v. Richardson, 189 Ill.2d 401, 721 N.E.2d 362 (2000), and later that same year, the United States Supreme Court denied Richardson's petition for certiorari. Richardson v. Illinois, 531 U.S. 871 (2000).

 Federal Habeas Corpus Petition

  New counsel were appointed to represent Richardson for the purpose of filing a federal habeas corpus petition. In conducting their pre-filing investigation, counsel interviewed Richardson's trial Page 9 attorneys regarding their decision not to call Myron Moses to testify. However, neither Babb nor McElligott had retained any notes or records from the trial, the case file had been lost during the appeals process, and neither recalled the circumstances of their decision not to call Moses.

  Counsel sent an investigator to interview Leonard Butler to determine what he could recall about his role as a potential rebuttal witness for the prosecution at Richardson's trial. Butler was located and confirmed that he is the brother of Annette Butler, Myron Moses' then girlfriend. Butler informed the investigator, however, that he had never discussed the Richardson case with prosecutors or defense counsel, and he denied ever hearing Moses identify Richardson as the Twin Foods perpetrator.

  Counsel also located Myron Moses as part of their pre-filing investigation. Moses reiterated that he had seen the assailant flee Twin Foods on April 1, 1980, that he knew Floyd Richardson, and that Richardson was not the man he saw. Moses also stated that he had never told Leonard Butler that the man he saw leaving Twin Foods was Richardson.

  In February 2001, Richardson petitioned this Court for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. In his petition, Richardson asserted eight claims. First, he alleged that the prosecution had engaged in intentional misconduct violative of his due process rights by falsely telling the court and defense counsel that Leonard Butler had information that would impeach the exculpatory testimony of Myron Moses were Moses called to testify. Second, he alleged that his trial counsel had rendered constitutionally ineffective assistance by deciding not to call Moses without first investigating the prosecution's claims regarding Butler. Third, Richardson asserted that the eyewitness identifications presented by the prosecution were produced by unduly suggestive procedures in violation of his due Page 10 process rights. Fourth, Richardson alleged that the prosecution had improperly used its peremptory challenges in a racially discriminatory manner. Fifth, he alleged that the prosecution's introduction of evidence about the April 5, 1980 armed robbery rendered the trial unfair. Sixth, Richardson alleged that his trial counsel had rendered ineffective assistance at the penalty phase by failing to investigate and present significant mitigating evidence. Seventh, he asserted that his appellate counsel rendered ineffective assistance on direct appeal by failing to raise various issues; Richardson later withdrew this claim. Finally, Richardson asserted that the Illinois death penalty statute was unconstitutional; this claim was later rendered moot by the commutation of his death sentence.

  Richardson supported his petition with several affidavits, all obtained by his appointed counsel in early 2001. Myron Moses stated, in substance, that he knew Richardson, he had seen the Twin Foods robber flee the store, and the man was not Richardson. Moses also stated that he had never told the police that the man could be Richardson and had never tentatively or positively identified Richardson as the offender, either from photographs or in a lineup. Moses also stated that "[a]t no time did I ever tell Leonard Butler that the person who ran out of Twin Liquors [sic] was Floyd Richardson." He stated that he had been able and willing to testify at Richardson's trial.

  Richardson also submitted an affidavit from Leonard Butler. Butler stated that he was formerly employed by the Rosemont Police Department but said that he had never gone by the name "Lloyd" or "Floyd." He recalled the Chicago police coming to his home to show his sister a photo array. Butler stated that Moses, his sister's boyfriend at the time, had never told him (Butler) that Floyd Richardson was the person he had seen running from the liquor store. Butler also swore that he had never told prosecutors or the police that Moses had said any such thing. Indeed, Butler said, he was never Page 11 spoken to by a prosecutor; rather he had talked only to the police. Butler stated that neither Richardson's defense attorneys nor an investigator had ever spoken with him.

  Richardson stated in an affidavit that he had understood his attorneys were planning to call Moses as a defense witness. But when it came time for Moses to testify, one of Richardson's attorneys (he believed it was McElligott) told him that if Moses testified, the prosecution would call Annette Butler's brother, a policeman, to testify that he had heard Moses tell Annette that it was Richardson he had seen fleeing the store. Richardson stated that he had told counsel that he thought they should call Moses anyway, but that counsel had stated that it would "look bad" for the defense if Leonard Butler were called in rebuttal. Richardson, relying on counsel's advice, agreed that Moses should not be called. He stated that his attorneys had not told him whether they had interviewed Leonard Butler or caused him to be interviewed.

  Trial counsel Ronald Babb and Joseph McElligott both submitted affidavits stating that even after attempting to refresh their recollections, they could not recall why they had not called Moses to testify, whether they had spoken to Moses, or ...


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