The opinion of the court was delivered by: Honorable David H. Coar
MEMORANDUM OPINION AND ORDER
Before this Court is a petition for the writ of habeas corpus filed pursuant to 28 U.S.C. §2254 by Craig Blakney ("Petitioner"), who is currently incarcerated at the Danville Correction Center in Danville, Illinois under the supervision of Warden Keith Anglin. For the reasons stated below, the petition is DENIED.
Following a bench trial, Petitioner was convicted of two counts of attempted first degree murder of a peace officer, two counts of attempted first degree murder, three counts of aggravated discharge of a firearm, two counts of aggravated battery with a firearm and two counts of attempted armed robbery. He was subsequently sentenced to twenty years of imprisonment. A summary of the pertinent facts follows.
On the evening of January 5, 1998, Aaron Williams ("Williams") and Douglas Davis ("Davis"), an off-duty peace officer employed by the Cook County Sheriff, were standing in front of Williams' home talking. As they were talking, a man wearing a black leather jacket with a hooded garment underneath and jeans approached. Both men testified at trial that Petitioner was that man. Both also testified that they looked at Petitioner's face as he approached them and Davis asked Williams whether he knew him, to which Williams responded that he did not. Petitioner, armed with a firearm, directed Davis and Williams to "lay it down." Williams testified that he saw Petitioner's face from a distance of about six feet and that he saw him fire his weapon. However, he also testified that he was running when the shooting began. Davis testified at trial that he also looked at Petitioner's face as he approached from a distance of about ten feet away. Before trial, Davis maintained that he had never seen Petitioner before the January 5th incident, but upon cross-examination he admitted that he had told a prosecutor that he had seen Petitioner on an occasion prior to January 5th.
Petitioner fired at Williams first, which gave Davis an opportunity to run behind a tree. Davis then announced that he was "Police." Davis testified that there was a second shooter in addition to Petitioner. Davis returned fire at Petitioner and struck him in the leg. Petitioner and the other shooter then escaped into an alley. Several hours after the shooting, Davis viewed a physical lineup but did not identify any of the participants as an assailant. However, later on, he viewed a photo array in which one of the photos was of Petitioner. Davis identified Petitioner as the assailant who wore the "hoodie" underneath a black leather jacket and jeans and who he had shot in the leg. Williams also viewed a photo array containing the same photos viewed by Davis and he also identified Petitioner as the assailant.
Celestine Baymon-Stewart ("Stewart") testified at trial that she lived across the street from Williams and was sitting on her porch at the time of the incident. She testified that she saw people walking across the street, then she heard gunshots and yelling. She saw someone run from the scene and two others run to opposite trees and shoot at each other. She saw a light colored fancy luxury car with shiny wheels back down the street into the alley. She then saw one of the shooters limp off in the direction of the car. She also saw the second shooter initially run after the first shooter but then reverse direction and run away.
The parties stipulated that a supervisor of the Chicago Police Department's communications division would testify to the fact that several 911 calls were made from the same area as the shooting between 10:55 pm and 10:59 pm. They also stipulated to the testimony of a chemist who would have stated at trial that DNA taken from a Mercedes-Benz (which Petitioner and his accomplices admit to driving the night of the incident) and the clothing of Donald and Scott Blakney belonged to the Petitioner.
Officer Gregory Swiderek ("Swiderek") testified that on the evening of January 5, 1998 around 11:00 pm, he was patrolling in an unmarked police car in the vicinity of Cook County Hospital. He saw a young African-American man running from the direction of the hospital towards Ashland Avenue. When the man saw Swiderek he stopped running and hailed a taxi. Two more African-American males who were running along Ashland Avenue stopped by the taxi and then all three men entered the vehicle. Swiderek observed the taxi driving at a high rate of speed so he decided to follow it. Ultimately, Swiderek stopped the taxi at 535 N. LaSalle Street, a few miles away from Cook County Hospital. When the three men exited the taxi, Swiderek recovered a .38 caliber blue steel revolver loaded with five live rounds of ammunition, two live rounds of .9 millimeter ammunition were also found. Swiderek then placed the three men under arrest.
The three men were Scott Blakney, Donald Blakney and Harry McGee. Swiderek recovered five more live rounds of .9 millimeter ammunition from Harry McGee's coat pocket and the key to a Mercedes Benz automobile from Donald's pants. Swiderek noticed what appeared to be two large blood stains on Donald's pants. The three men informed him that they had been with the Petitioner, that Petitioner had been shot, and that they had just dropped him off at Cook County Hospital.
Evidence technician, Edwin Jones, testified that he recovered from the scene of the shooting spent casings from semi-automatic .9 millimeter guns, .45 caliber casings and one full round of .40 caliber ammunition. Detective William Whalen testified at trial that he observed a 1992 Mercedes Benz parked near an entrance into Cook County Hospital on June 6, 1998. He observed a bullet hole in the driver's side door and the rear passenger door and blood inside the vehicle. Forensic investigator, John Paulson, testified that he processed the Mercedes Benz at the Area Five garage on January 6, 1998. He also testified that there were single bullet holes in the driver side door and the rear passenger side door. He testified further that there was a .9 millimeter cartridge case inside the vehicle.
Officer Sam Cirone testified that he conducted separate lineups with Donald Blakney, Scott Blakney and Harry McGee for Davis and Williams. Neither man identified anyone in the lineup as the shooter. Cirone then went to Cook County Hospital to visit Petitioner. He inventoried Petitioner's clothing- a leather jacket, a black and grey hooded sweatshirt, bloody gym shoes and a single gym shoe. He also took a Polaroid picture of Petitioner. Cirone took that photo back to the police station and placed it in photo arrays for Davis and Williams to view separately. Both men identified Petitioner as the assailant who approached them and began shooting.
Officer Deirdre Heraty testified that on the morning of January 2, 1998, she found two automatic handguns near bushes around 700 South Ashland Avenue. The first was a Browning .9 millimeter that contained thirteen live rounds of ammunition and the second was a .40 caliber Glock that contained six live rounds of ammunition. The parties stipulated that a forensic scientist would testify that the .9 millimeter shell casing found in the Mercedes-Benz was fired by the .9 millimeter handgun found by Officer Heraty.
Nurse Laura Cleofe testified that she was working in the trauma unit of the Cook County Hospital on the evening of January 5, 1998 and her records indicated that Petitioner was admitted at 10:50 pm that evening. Dr. Kimberly Joseph testified that she examined Petitioner on the evening of January 5, 1998 and that she made her first notation around 11:53 pm. She also stated Petitioner had a gun shot wound to the ankle area of his right foot.
Petitioner testified that he did not shoot at Davis and Williams and was not at the scene of incident the evening of January 5, 1998. Instead, he testified that he was in the Mercedes-Benz with his two brothers and Harry McGee driving near Polk Street and Independence Boulevard when a man began shooting at his car, that he was struck by a bullet and that his brother Donald returned fire. He testified further that he stopped the car, allowed Scott Blakney to assume the wheel and then the group continued to Cook County Hospital where Petitioner was left.
Before the trial, Petitioner made a motion to suppress the identification of Davis and Williams from the photo arrays asserting illegal search and seizure by the Chicago police. During the trial, both Davis and Williams identified Petitioner as the shooter and would-be robber by pointing him out as he sat at defense counsel's table. After the trial, Petitioner filed a motion to have a bullet fragment found in his leg compared to fragments known to have come from Davis' gun and a motion for a new trial due to 1) William's partial recantation of his testimony, 2) the unnecessary suggestiveness of the identification evidence and 3) the unconstitutional search and seizure committed by the police while Petitioner was being treated in the emergency room of Cook County Hospital. The trial court denied Petitioner's motion for a new trial. Petitioner later filed another motion for a new trial based on the findings of a doctor, Dr. Robert Kirshner, concerning Petitioner's gunshot wound. This motion was also denied. Petitioner attempted to make an offer of proof concerning Dr. Kirshner's photographic evidence upon which he relied to form his expert opinion but the court denied Petitioner's request.
Petitioner appealed his conviction to an Illinois Appellate Court. His grounds for appeal were that the trial court erred when it: 1) denied his motion to suppress identification based on illegal search and seizure, 2) denied his motion to suppress identification based upon witness' viewing an unnecessarily suggestive and unfair photo array, 3) allowed unduly suggestive in-court identifications of him, 4) convicted Petitioner in spite of what Petitioner characterizes as the State's failure to produce evidence establishing guilt beyond a reasonable doubt, 5) sustained the State's objection to his commenting on the supposedly unfair and suggestive photo array, 6) denied his post-trial motions, and made certain evidentiary findings (which will be discussed in detail later).
The Appellate Court affirmed the trial court on all grounds. The Petitioner requested the court for a rehearing, and that request was also denied. Petitioner then filed a petition for leave to appeal with the Illinois Supreme Court alleging the following 1) that the lower courts misapplied controlling federal and state law when they concluded Petitioner had no expectation of privacy in his hospital room at Cook County Hospital, 2) that he was denied due process of law when the in court and photo array identifications were allowed into evidence, 3) that the issue of suggestive identification was not waived, 4) that he was denied due process of law when the trial court a) denied his request for a hearing to present exculpatory scientific evidence relating to his wounds and how they related to his guilt, b) denied his request for a test to determine whether bullet fragments in his leg came from Davis' gun, ...