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U.S. EX REL. DAVIS v. McADORY

November 2, 2004.

United States of America ex rel. JERROLD DAVIS, Petitioner,
v.
EUGENE McADORY, Warden, Menard Correctional Center, Respondent.



The opinion of the court was delivered by: RONALD GUZMAN, District Judge

MEMORANDUM OPINION AND ORDER

Petitioner Jerrold Davis is in the custody of Eugene McAdory, warden of the Menard Correctional Center in Menard, Illinois. He petitions this Court for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 and asserts eight grounds for relief. For the reasons stated below, the Court denies the petition.

FACTS*fn1

  Larion Jackson was shot and killed around 2:30 a.m. on July 7, 1998. He was on a porch at 512 North Laramie with his brother, Chris Jackson, and several others at the time of the shooting.

  At trial, Chris Jackson testified that he, Larion, and several others were playing cards on the porch when he heard a click as the card game was wrapping up. He then looked toward the street and saw two men, one with a shotgun and the other with a handgun, about ten feet away with guns aimed at the porch. The men started shooting, and Chris crawled into the house. He testified that he heard about seven or eight shots fired. Chris also testified that he was able to see the face of the shooter with the handgun, he believed that the shooter with the handgun was Jerrold Davis, and that Jerrold was wearing a black, hooded sweatshirt. After the shooting, Chris went back on the porch and saw Larion on the porch with a gunshot wound. Chris gave the police a description of the shooter. Additionally, several days after the shooting, he viewed a lineup and identified Davis as the shooter with the handgun.

  At trial, Jemar Williams also testified. He stated he had seen Davis "throwing up" gang signs while near Blackstone street gang members. Although Williams had signed a statement in the presence of an Assistant State's Attorney and Detective Gilger stating he had witnessed the shooting, at trial he denied he saw the shooting. He testified that he signed the statement due to police coercion. The prosecution offered Williams' original statement into evidence and it was admitted. In Williams' original statement he stated that he was on the front porch of his house on July 7, 1998 at about 2:30 a.m., he saw a white, four-door Ford Tempo pull up. The driver of the car was Jerrold's twin brother, Derrold Davis. He further testified that when the car pulled up, Jerrold and a third man left the car. Jerrold was wearing a black hooded sweatshirt with matching pants and was carrying either a nine millimeter or .45 caliber handgun. After walking up to the gate at 512 North Laramie, the two men started shooting at the porch. Williams stated that when the shooting occurred fifteen to eighteen people were on the porch. When the shots were fired the people on the porch began to run and attempt to get into the house. According to Williams, the man with the shotgun fired twice and Jerrold fired over ten times. Williams saw a man on the porch fall down and, after the shooting, saw the two men get back into the car and drive away. Macanzie Clark was also a witness for the prosecution. When Clark was detained on July 11, 1998, he told Detective Gilger that on the day after the shooting, Jerrold told him that he and another person shot at the porch on Laramie. Clark also stated Jerrold said he was the one carrying the shotgun. Clark had known Jerrold and Derrold since the sixth grade and was able to tell them apart because one had a mole on his face. Clark took a polygraph exam, and after being told the results, he admitted he had lied about Jerrold holding the shotgun. Instead, Clark then stated that Jerrold told him he had the .45 caliber gun. Clark stated that the reason he fabricated the first story was that he did not want to get Jerrold in more trouble than he was in already. Clark's account of his conversation with Jerrold was admitted at trial as a handwritten statement. Clark also testified at a grand jury proceeding and again stated that Jerrold had the.45 caliber gun. This testimony was also admitted at trial.

  In his grand jury testimony, Clark recounted what he asserted Jerrold had told him regarding the shooting. Clark testified that he himself was a member of the Black Peace Stones gang and that the Black Peace Stones were at war with the Traveling Vice Lords and the Undertaker gangs. Clark stated that Jerrold believed the people on the Laramie porch were members of the Traveling Vice Lords or the Undertaker gangs. He stated that Jerrold said the car in which he rode was parked about two houses away from 512 North Laramie. He testified that Jerrold stated that he and the man in the back seat got out of the car and the man in the back seat was armed with a pump shotgun and shot first. Jerrold also said he fired the .45 caliber gun "a lot of times." He stated that Jerrold said the men then returned to the car and drove away. During his testimony, Clark stated that he originally lied to the police to protect Jerrold, but he was telling the truth to the grand jury because he recognized the severity of the charge.

  At the jury trial, Clark denied that Jerrold confessed to the shooting. He admitted that he had made prior inconsistent statements, but he said the inconsistent statements were due to police coercion.

  When Detective Gilger testified at trial he spoke about the circumstances and content of Clark and Williams' oral and handwritten statements. He also testified that both Chris Jackson and Williams viewed separate lineups and identified Jerrold as the shooter with the handgun. Detective Gilger also testified as an expert witness about gangs in the area of the shooting. He testified that in the summer of 1998 the Vicelord and the Blackstone gangs were at war over the right to sell drugs in the area where the shooting occurred.

  Larion's autopsy showed he died of a gunshot wound to the head. Two fired bullets and seven cartridge casings were recovered from the scene, all from a .45 caliber gun. The casings and bullets were also found to be from the same gun. Additionally, a shotgun shell was found at the scene and shotgun wadding was found under Larion's body.

  PROCEDURAL HISTORY

  On December 13, 2000, in Cook County, Illinois, a jury found Jerrold guilty of first degree murder and attempt murder. Jerrold was sentenced to respective concurrent terms of forty years and thirty years in prison. The Honorable Colleen McSweeney Moore denied Jerrold's motion for a new trial.

  Jerrold appealed to the Illinois Court of Appeals, arguing the following: (1) Detective Gilger was not qualified as a gang expert and the admission of his testimony was improper; (2) he was denied a fair trial when the trial court improperly admitted gang and drug testimony of Clark and Williams; (3) he was denied a fair trial when the court abused its discretion and made numerous incorrect evidentiary rulings; (4) it was reversible error for the trial judge to consider the evidence from a co-defendant's earlier trial when ruling on issues in his trial; (5) it was reversible error to admit and publish bloody photographs that were of no probative value and highly prejudicial; (6) it was reversible error to admit polygraph evidence of a state witness; (7) it was reversible error for the trial court to give jury instructions which allowed for a finding of guilt for murder and attempted murder based upon "great bodily harm" language; and (8) he was not proven guilty beyond a reasonable doubt. On September 30, 2002, the Appellate Court affirmed Jerrold's conviction.

  On October 21, 2002, Jerrold petitioned for leave to appeal to the Supreme Court of Illinois and presented only three issues for review. First, Jerrold argued Detective Gilger was not qualified to offer expert opinion testimony regarding gangs. Second, he asserted he was denied a fair trial because the trial court improperly admitted testimony from Williams and Clark. Third, he claimed that the evidence presented in the case was insufficient for a conviction ...


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