The opinion of the court was delivered by: Harry D. Leinenweber, Judge United States District Court
Hon. Harry D. Leinenweber
MEMORANDUM OPINION AND ORDER
Before the Court is Petitioner William Johnson's (hereinafter, "Petitioner") pro se Petition for a Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254.
On May 17, 2001, Petitioner was convicted in the Circuit Court of Cook County, Illinois, of armed robbery, aggravated battery, and unlawful use of a weapon in connection with the November 11, 1998, robbery of a McDonald's restaurant in Markham, Illinois. On appeal, the Illinois Court of Appeals affirmed the convictions in spite of finding errors in Petitioner's trial, concluding that the errors had been harmless. After the Illinois Supreme Court denied Petitioner leave to appeal, Petitioner filed the instant petition in this Court. For the reasons that follow, Petitioner's petition for writ of habeas corpus is conditionally granted.
On November 11, 1998, a man with a sawed-off shotgun robbed a McDonald's restaurant in Markham, Illinois, and fled out the door to the restaurant's parking lot. When the police arrived, they found Petitioner's car in the lot. Behind the driver's seat was a shotgun and a large amount of wadded-up cash. Police eventually developed information that a customer at the Trak Auto store across the street from the McDonald's had given Petitioner a ride to a nearby motel. A short time later, officers arrested Petitioner, along with a woman, at the motel. Police subsequently also learned that Petitioner's cousin, Jameel White ("White"), was with Petitioner that day. After being arrested, White told police that Petitioner robbed the McDonald's and then procured a ride for the two of them out of the area. That evening, from a police station lineup, two McDonald's cashiers identified Petitioner as the robber.
Thirteen witnesses testified at Petitioner's trial, and their testimonies were often conflicting and confusing. In sum, the state's theory was that Petitioner, after stopping at the McDonald's at Jameel White's request, pulled out a shotgun and robbed the restaurant, depositing the gun and cash in his car outside before fleeing the area. The evidence supporting the state's case primarily comprised the following: (1) the testimony of Jameel White that while White was eating at the McDonald's, Petitioner unexpectedly pulled a sawed-off shotgun from his pants and approached the counter; that White fled immediately and heard a shot when he exited the restaurant; that White then saw Petitioner exit the McDonald's with wads of cash in his hand and dump the cash and gun into his car before running after White across the road; and that Petitioner arranged a ride from the area in the van of a man that White did not know; (2) the police line-up and in-court identifications of Petitioner by two McDonald's employees, Monique Nolan and Susanna Ramos; (3) the testimony of Ron Tate ("Tate"), the manager of the Trak Auto store across the road from the McDonald's, that a man who looked like Petitioner was in his store that afternoon and showed Tate several crumpled-up bills, yelling "I got money," and that one of Tate's employees later found crumpled money on a shelf in the store; (4) the testimony of Thomas Gaston ("Gaston") that he gave Petitioner and White a ride in his van that Petitioner gave him money for the ride, and that Gaston ultimately took Petitioner to a motel; and
(5) police testimony that officers recovered from Petitioner a piece of a torn $20 bill that matched a torn $20 bill recovered from Petitioner's car.
The defense contended that it was Jameel White and a friend who robbed the McDonald's while Petitioner was across the street buying automotive supplies. To this end, the defense attacked White's testimony as implausible and inconsistent with itself and with the testimony of other, more disinterested witnesses. The defense also vigorously contested the reliability of the state's identification evidence, first by pointing to the witnesses' varying descriptions of the robber, including an initial description that matched Jameel White, and then by attacking the police lineups as incomplete, given the exclusion of White from them even though he was in custody, and suggestive because Petitioner was the only lineup participant that matched the description the police were working with. The defense also pointed to various other purported failings and irregularities in the investigation, including the officers' failure to inventory the alleged recovery of the $20 bill from Petitioner's person or report receiving information implicating Jameel White.
Petitioner also testified in his own defense. In brief, he testified that White and a friend of White's, driving Petitioner's car, dropped Petitioner off at Trak Auto so Petitioner could buy some oil and transmission fluid while White and his friend went to get something to eat. According to Petitioner's testimony, White reappeared at the Trak Auto alone and on foot and told Petitioner that he had gotten in some trouble and had left Petitioner's car across the road. Petitioner testified that ultimately, after White secured a ride from a Trak Auto customer, Petitioner and White rode back to Petitioner's parents' house, but Petitioner continued on to a motel after encountering a girlfriend with whom he had previously made plans. The jury convicted Petitioner of armed robbery, aggravated battery, and unlawful use of a weapon but acquitted him of attempted murder. The court sentenced Petitioner to 25 years for the robbery, 15 years for the battery, and 10 years for the weapon charge, all to run consecutively.
Petitioner raised eight claims on appeal to the Illinois Court of Appeals: (1) that the state's questions and comments regarding his post-arrest silence violated his rights to a fair trial, due process of law, and against self-incrimination under the rule in Doyle v. Ohio, 426 U.S. 610 (1976); (2) that the state committed reversible error in questioning him about prior convictions; (3) that the trial court's oral jury instruction for armed robbery and unlawful use of a weapon misstated the state's burden of proof; (4) that the trial court erroneously denied his motion to suppress unnecessarily suggestive identification evidence; (5) that the trial court misstated the law during jury instructions regarding evaluation of eyewitness testimony; (6) that the state failed to prove the mental state requirement of the aggravated battery charge beyond a reasonable doubt; (7) that his trial counsel was ineffective for: (a) failing to request that the court define the mental state element on the aggravated batter count; (b) failing to request an instruction that Petitioner was not required to answer questions before trial; (c) failing to object to the state's rebuttal argument comments on Petitioner's post-arrest silence; and (d) failing to object to the improper jury instructions; and (8) that the mittimus should be corrected to reflect 966 days' credit for time served.
The Appeals Court affirmed Petitioner's convictions but did correct the mittimus as Petitioner requested.
Petitioner filed a petition for leave to appeal to the Illinois Supreme Court, raising claims that the appellate court conducted erroneous harmless error analyses on his Doyle claim, his prior convictions claim, and his eyewitness testimony instruction claim; and an erroneous plain error analysis regarding his oral jury instruction claim. The court denied the petition.
Now, on habeas, Petitioner reprises each of the claims rejected by the Illinois Court of Appeals, with the exception of his suggestive identification evidence claim.
Section 2254 of the Anti-Terrorism and Effective Death Penalty Act of 1996 (the "AEDPA") entitles a state prisoner to a writ of habeas corpus if the judgment underlying imprisonment violates the United States Constitution. Williams v. Taylor, 529 U.S. 362, 375 (2000). To this end, a habeas petitioner must show that the state court decision: (1) was contrary to, or involved an unreasonable application of, clearly established federal law as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding. 28 U.S.C. § 2254(d)(1) and (2); see Ellsworth v. Levenhagen, 248 F.3d 634, 638 (7th Cir. 2001). Petitioner asserts several grounds for relief under this standard, but as explained below, only the first one is reviewable on the merits.
Petitioner contends that the state violated his Fifth and Fourteenth Amendment rights by using his post-arrest silence to impeach his testimony, and that his conviction must be overturned, because contrary to the state courts' findings, this error was not harmless. First, Petitioner is correct that "the use for impeachment purposes of [a defendant's] silence, at the time of arrest and after receiving Miranda warnings, violate[s] the Due Process Clause of the Fourteenth Amendment." Doyle v. Ohio, 426 U.S. 610, 619 (1976). This rule rests on the "fundamental unfairness of implicitly assuring a suspect that his silence will not be used against him and then using his silence to impeach an explanation subsequently offered at trial." Wainright v. Greenfield, 474 U.S. 284, 291 (1986) (quotation omitted).
The Illinois Court of Appeals agreed with Petitioner that the state ran afoul of Doyle v. Ohio when the prosecutor repeatedly cross-examined him regarding, and then commented in rebuttal argument on, Petitioner's failure to tell his story to police following his arrest. People v. Johnson, No. 1-01-2490, slip op. at 13 (Ill. App. Ct. September 21, 2004). That court, however, concluded that the Doyle violations were harmless under the standard in Chapman v. California, 386 U.S. 18 (1967), because there was an "overwhelming quantum of evidence of [Petitioner]'s guilt." Johnson, No. 1-01-2490, slip op. at 20. Specifically, the court was persuaded by the two eyewitness identifications. Id. at 20-22.
1. Underlying Doyle Violation
As noted above, under Doyle, the state may not impeach a defendant's trial testimony with his post-arrest silence. It is undisputed that the state on numerous occasions, both during its cross-examination of Petitioner and during its rebuttal argument, questioned why Petitioner did not tell his story to police following his arrest. The state both on appeal and now has argued that Doyle is not implicated here because Petitioner gave a statement to the State's Attorney the day after his arrest and therefore waived his right to remain silent and can be impeached both by the statement he made and by his silence thereafter. The appeals court rejected this argument, however, because (a) Petitioner's statement to the State's Attorney was short, ambiguous, and not inconsistent with his trial testimony, and (b) fairness precluded the state from using the statement to overcome Petitioner's Doyle protection because, in violation of state discovery rules, the state had previously failed to turn the statement over to the defense. Id. at 15-19.
This Court concurs with the Illinois Court of Appeals that the state violated Petitioner's rights under Doyle v. Ohio. Petitioner's statement to the State's Attorney, which essentially only addressed what he did early on the morning of the robbery and what he had planned to do that evening, was not sufficiently inconsistent with his trial testimony to constitute of a waiver of constitutional protections. The Court additionally cannot disagree with the view that it would be improper to allow the state ...