The opinion of the court was delivered by: Jeanne E. Scott United States District Judge
JEANNE E. SCOTT, U.S. District Judge:
This matter comes before the Court on Petitioner Robert F. Russo's Petition Under 28 U.S.C. § 2254 for Writ of Habeas Corpus by a Person in State Custody (d/e 1-2) (Petition). Russo also has filed a Motion for Production of Pre-Trial Discovery Documents (d/e 4) and a Motion for De Novo Review (d/e 12). For the reasons stated below, the Court finds a hearing unnecessary and denies all three.
Petitioner currently is incarcerated at the Illinois Department of Corrections Menard Correctional Center, where he is serving a sixty-year sentence on a conviction for first-degree murder. On August 17, 2001, a jury in the Circuit Court of Adams County, Illinois convicted him of murdering Francis Dale Smith, who had killed the brother of one of Petitioner's neighbors.
In March of 2001, Petitioner lived with his wife Mary Russo in an apartment complex in Quincy, Illinois. Jerome Shoop and Chuck Conover, Sr. lived together in another unit within the same complex. Conover, Sr. and Mary Russo were involved in a romantic affair. According to Shoop, twenty years earlier, Smith killed Shoop's brother in an incident at a bar.
Numerous witnesses testified at trial that on the night of March 11, 2001, Petitioner and Smith drank together at Tom & Jerry's bar. Shoop testified that around 5:00 p.m., Petitioner came by his apartment and stated that he "needed to go back up to the bar" because "that f'in Smith was up there." Respondent's Response (d/e 15) (Response), Exhibit I, Trial Transcript, at 49.
Petitioner's wife, Mary Russo, testified that evening, she had drinks with a Margaret Sharrow and then went over to Shoop and Conover, Sr.'s apartment. She was there around 8:00 p.m. when Petitioner came to the door and asked her to "turn a trick for him." Id. at 233. She testified that as she was leaving, she told Donna Heather, another woman in the apartment, that if she did not come back within an hour, Donna Heather should call the police. Contradicting Mary Russo's testimony, Margaret Sharrow denied having drinks with Mary Russo that night, and Donna Heather testified that, while Mary Russo left with Petitioner from Shoop and Conover Sr.'s apartment, Mary Russo never warned her to call the police.
According to Mary Russo, after leaving the apartment, she and Petitioner walked to Tom & Jerry's where Petitioner wanted her to draw Smith out of the tavern so that he could kill Smith. Petitioner told her that Smith had killed Shoop's brother, and Shoop had offered Petitioner $500.00 to murder Smith. Mary Russo saw a meat cleaver in Petitioner's back pocket. Yet, in a recorded conversation between Mary Russo and Petitioner's investigator, which Petitioner introduced at trial, Mary Russo wavered on whether Petitioner told her on the way to the bar that he intended to kill Smith.
At the bar, Smith agreed to pay Mary Russo for oral sex, and while he suggested the parking lot, she opted for the men's bathroom. Mary Russo performed the sexual favor, but, after a dispute about the money, Petitioner intervened. According to Mary Russo, the two men went to the bar, and she returned to Shoop and Conover Sr.'s apartment. She testified that around 9:15 or 9:30 p.m., Petitioner arrived, and she had a conversation with him. Conover, Sr. was out initially, but he then returned, and Petitioner offered him $50.00 to move Smith's body. Mary Russo testified that Conover, Sr. refused.
According to Shoop, around 10:30 p.m. Petitioner came by his apartment and said that Smith was dead in Petitioner's apartment, on his couch, and he needed Shoop's help. Shoop refused; and Shoop then went to pick up Conover, Sr. at a nearby complex. Conover, Sr. testified that during the car ride home, Shoop told him that Petitioner had just said he'd killed a man and asked to use Shoop's car to get rid of the body. When they returned, Shoop and Conover, Sr. observed Petitioner moving a love seat out the front door of his apartment.
Around 11:00 p.m., Shoop testified, Petitioner again came by Shoop's apartment and asked to borrow his car and handsaw. Shoop said he refused. Petitioner asked Conover, Sr. to help him carry the body to the ravine, but Conover, Sr. indicated that he also refused. According to Conover, Sr., Petitioner told him later that night that he "lightened it up by taking care of it." Response, Exhibit K, Trial Transcript, at 167.
Three days later, Shoop told a friend, Kim Gooding, of Petitioner's actions. Gooding testified regarding this conversation and indicated that Shoop was "shaken up" when he told her. Response, Exhibit I, Trial Transcript, at 140. Gooding reported the conversation to her mother, Lenora Hogan, who testified to her daughter's account.
Petitioner testified at trial. He stated that he was with Smith the night of March 11, 2001, until they arrived at the Sandbar Tavern. There, Smith told Petitioner that Mary Russo had tried to solicit a later rendezvous with him at their apartment. Petitioner left angry. He testified that he went to Conover, Sr.'s apartment and argued with Mary Russo. He then left the apartment and went to the Wand-R-Inn tavern, but "places and faces start to get a little hazy" after that. Response, Exhibit M, Trial Transcript, at 108. He did remember stopping at two more bars.
Petitioner told the jury that after the bars closed, he looked for a place to stay and ended up in a hotel for the night. At 6:00 a.m., he returned to his apartment to retrieve a suitcase. He found his couch and two lamps missing. He then began hitchhiking and ended up at a Salvation Army shelter in St. Louis.
On March 17, 2001, police found Smith's body in a grassy area near the apartment complex. Smith's body had deep lacerations in the scalp and a massive cut across the neck, and someone had chopped off portions of his arms and legs. Investigators found a small saw under Petitioner's bed and a "claw type hammer" in an adjacent toolbox. Response, Exhibit K, Trial Transcript, at 150. Expert witnesses testified that these tools could have caused Smith's wounds, but forensic analysis failed to discover any blood on them.
Near a dumpster at the apartment complex, police also found a sofa stained with blood. Marlon Tournear, a neighbor across the street, testified that on the evening of March 11, 2001, he saw a man "flip the couch out" of Petitioner's apartment and sweep and mop Petitioner's apartment floor and the sidewalk outside it. Response, Exhibit H, Trial Transcript, at 129. Tournear identified the man he saw as Terry Hawe. Tournear testified that after he witnessed the man flip the couch out of the apartment and clean the floors, his wife arrived home from work. His wife testified that from the same vantage point, she later observed Petitioner and another man carry the couch away from the apartment, and the other man then carried lamps away.*fn1 Petitioner called Hawe to testify, but Hawe invoked his Fifth Amendment right and answered no questions. DNA analysis determined that the blood on the couch near the dumpster and the blood found on the walls of Petitioner's apartment were both Smith's.
Petitioner testified that while in St. Louis, he saw a news report indicating he was wanted for murder in Quincy. He then wandered around for a few hours and threw away his luggage and identification to "perhaps become a different person." Response, Exhibit M, Trial Transcript, at 130. Eventually, he called 911 and surrendered to authorities.
Investigator Randy Strode investigated Smith's murder and interviewed Petitioner on March 20, 2001. He testified that Petitioner told him he had gone to the Branding Iron to drink on March 11, 2001. Later Petitioner, Smith, and a third man went to Tom & Jerry's, but Petitioner walked on to a third bar, Sandbar Tavern, alone. Petitioner told Strode that he stayed there for an hour and then walked home by himself. At home, he packed a suitcase so that he could leave Quincy to escape traffic citations. He spent the rest of that night and the next at a hotel. Strode testified that Petitioner did not remember taking Mary Russo to Tom & Jerry's and had no memory of any conversation with Conover, Sr. the night of March 11, 2001. Petitioner told Strode he did not remember leaving Tom & Jerry's in a cab with Smith, but if others said he did, it was possible. He could not remember where he and Smith were when they parted company. Petitioner was adamant, however, that Smith had never been to his apartment that evening.
In addition to the evidence, a number of court rulings and prosecutorial actions are at issue here. Two arose before trial, and several during trial.
Before Petitioner's trial, his wife Mary Russo was involved in an unrelated probation revocation hearing. Petitioner's trial judge, the Honorable Dennis K. Cashman, presided over Mary Russo's revocation proceeding. During that hearing, he admonished her to "testify truthfully" at Petitioner's trial. Response, Exhibit C, Common Law Record, at 2 (C34). Her sentencing order stated that "any jail time may be waived if a bed becomes available at a treatment center after her testimony is completed with Mr. Russo's murder trial." Id. at 2 (C34). On this basis, Petitioner argued that Judge Cashman was prejudiced against him and filed a motion to substitute judge.
The Honorable Scott H. Walden was assigned to hear Petitioner's motion for substitution. Judge Cashman submitted an affidavit to Judge Walden stating that he ordered Mary Russo to testify truthfully in Petitioner's trial only to make certain that she understood her obligation to be truthful. Additionally, he noted that the language suggesting a jail waiver after testimony was erroneously included in her sentencing order. Judge Cashman believed that Mary Russo's defense attorney inserted the language, and he indicated that on the same date he submitted this affidavit, he revised the sentencing order to exclude such language. Finally, Judge Cashman stated that in his 22 years as a judge, he always ordered defendants to testify truthfully but never intended to prompt a defendant to testify for one party over another.
Judge Walden denied Petitioner's motion to substitute. He noted that advising a witness to testify truthfully is no different than advising the witness not to perjure herself, which would be prohibited under standard terms of probation. All proceedings on Petitioner's motion to substitute occurred before the start of Petitioner's trial, and thus before Mary Russo testified.
In another pretrial motion regarding Petitioner's wife, Petitioner sought to bar Mary Russo's testimony under Illinois' marital privilege law. Mary Russo was expected to testify to three conversations she says she had with Petitioner: the conversation at Shoop and Conover, Sr.'s apartment before the couple headed to Tom & Jerry's, the conversation with Petitioner on the way to Tom & Jerry's, and a conversation later that night in which she says Petitioner admitted to murdering Smith.
The court granted the motion in part and denied it in part. The court held that the third conversation was privileged, but the first two fell within Illinois' agency exception to the marital privilege law because they involved one spouse asking the other to perform an act in furtherance of a crime. The judge noted that in his opinion, the third conversation should not be privileged because "nobody should be able to hide behind a so-called sanctity of a marriage when dastardly deeds are being discussed, and talked about and performed." Response, Exhibit F, Hearing Transcript, at 33.
Nonetheless, he stated, existing law held that the privilege applied to this conversation, so he would apply the law and exclude the conversation.
1. Adam Heather's Statements
On the third day of trial, October 11, 2001, a man named Adam Heather appeared at the State's Attorney's Office. The next morning, attorneys for both the State and Petitioner informed the court that the day before, Adam Heather discussed with them conversations he had with Chuck Conover, Jr. (Chuck Conover, Sr.'s son) regarding Smith's murder. Adam Heather had never before contacted investigators in this case, and the State stressed that, even in his statements the previous evening, he had provided widely varying accounts of the conversations he claimed to have had with Conover, Jr.
In the presence of Petitioner's counsel, Adam Heather stated that he and his wife, Bobbi Jo Heather, visited Conover, Sr.'s apartment either March 11, 2001, or sometime in May 2001, to purchase marijuana. A man named Lucas Roberts was also at the apartment. Conover, Sr. and Conover, Jr. told Adam Heather that they were involved in the cleanup of Petitioner's apartment on March 11, 2001, and they moved out a couch. They told Adam Heather that Shoop struck Smith in the head with a statue, and Petitioner cut off Smith's arms and legs.
Also in the presence of Petitioner's counsel, Adam Heather stated that on another occasion, he was in the car with Conover, Jr., and Conover, Jr. said that he had been involved in the cleanup of Petitioner's apartment after Shoop struck Smith on the head with a statue. Adam Heather told the parties that he was under the influence of drugs during this conversation.
Additionally, at some point earlier in the day while he was talking with State authorities, Adam Heather said that the Conovers told him that Petitioner had lured Smith back to Petitioner's apartment to be killed. Petitioner's counsel told the court that in his presence, Adam Heather never mentioned Petitioner luring Smith back to his apartment. Petitioner's counsel asked Adam Heather about Petitioner's involvement, and Adam stated only that he was told Petitioner cut off Smith's arms and legs with a saw.
Petitioner's counsel sought to elicit Adam Heather's testimony to impeach Conover Sr.'s. On the morning of the fourth day of trial, the court ordered subpoenas for the Heathers. Investigators, however, could not locate them. Adam Heather called the prosecutor to complain that he had appeared in the news.
Before the trial concluded, the court allowed an offer of proof outside the presence of the jury. Lucas Roberts, who allegedly witnessed Adam Heather's conversation with the Conovers in mid-May 2001, testified that he drove the Heathers to Conover, Sr.'s apartment to purchase marijuana. He said he sat on the couch while Adam Heather and Conover, Sr. discussed tattoos about ten feet away. He did not overhear any discussion of murder and testified that he would have paid attention to such a discussion if he had. Adam Heather did not mention such a discussion during the 30-minute car ride back from Conover, Sr.'s apartment, and he did not appear distressed.
Conover, Jr. also testified that he never had any conversation with Adam Heather regarding Smith's death. He said he had no personal knowledge regarding Smith's death, and no one ever admitted anything to him regarding it.
On the trial's sixth day, Petitioner requested a continuance until the Heathers could be located. The court denied his request, noting that such a continuance could be indefinite. The court stated:
A case of this magnitude is not going to rise or fall on somebody taking it upon themselves to walk into the State's Attorney office in the middle of a trial when they made no effort to disclose this information before then, to give then [sic] a version of something, and change that version along the way and avoid service of process, and cause this case to come to a grinding, screeching halt.
Respondent's Response, Exhibit L, Trial Transcript, at 265-66.
Before Petitioner rested, he renewed his motion to continue, but conceded that the Heathers could not be considered material witnesses and that state investigators had attempted to serve subpoenas on them for six days. The court denied the motion, again noting that the continuance could be indefinite. The court also stated that two people allegedly present for the conversation denied that it occurred, and there was no way to predict what the Heathers would say if they testified.
On May 17, 2002, after Petitioner's trial, a private investigator working for Petitioner taped an interview with Adam Heather. Petitioner provided the Court a transcript of this unsworn interview. In the interview, Adam Heather stated that the year before, a day or two after Smith was murdered, Conover, Jr. drove him to Quincy to perform tattoo work. During the trip, Conover, Jr. told him that Shoop hit Smith over the head with a statue, and Conover, Jr. and Conover, Sr. helped clean blood from the apartment and moved a couch out of it. Conover, Jr. bragged that he was present during the murder, but Adam Heather understood that he only assisted in the clean-up. Conover, Jr. told him that only he, Conover, Sr., Shoop, and Smith were present during the murder, but Conover, Jr. left at some point and later returned to clean up. Conover, Jr. also told him that Petitioner dismembered the body with a hacksaw. Adam Heather told the investigator that after he came by the State's Attorney's Office to discuss the murder during the trial, he received a telephone death threat. Adam Heather refused to provide a sworn statement but said that he would share this same story again informally.
DNA expert Aaron Small testified at trial. In discussing the results of testing the blood samples retrieved from Petitioner's apartment walls, the couch found outside, and a matching couch cushion discovered at a landfill, Small introduced a chart. When he identified columns on the chart, he stated that one related to a bloodstain found on Terry Hawe's pants. He testified that the blood in this stain was Hawe's. Petitioner did not object to this testimony or the chart.
At a sidebar, however, the court sua sponte expressed concern over the lack of a foundation establishing that the pants referenced were Hawe's or that he wore them the night of Smith's murder. The court described the testimony as "irrelevant" and worried that the jury might conclude that because only Hawe's own blood was found on the jeans, Hawe was not involved in Smith's murder. The court ordered the State to clarify the evidence, and the State elicited testimony from Investigator Strode indicating that Strode seized the pants only because they were stained, and he had no information regarding whether Hawe wore those pants the night of Smith's murder.
During closing arguments, the State made several comments at issue here. First, during the opening segment of his closing argument, the prosecutor accused Petitioner of lying. He stated:
One of the things I think we all know from our experience in life, whatever those experiences might be, wherever we have been, is that we have probably all seen, heard, endured liars, and one of the things that we know from that experience is that one of the -- one of the favorite techniques of liars is to add detail to their stories, spice it up with a few facts, because it makes it sound credible, makes it sound believable. Boy, he remembers this, and he remembers this and he remembers this. The good ones, the accomplished liars, will do that. . . . And what he did yesterday morning and attempted to do yesterday afternoon in what I can most charitably describe as one pathetic attempt to explain his lies to Randy Strode was simply one more gigantic lie to you folks.
Response, Exhibit N, Trial Transcript, at 60-61. Additionally, the State discussed an accountability theory of guilt. The prosecutor told the jury that even if others were involved in this crime, Petitioner could still be guilty beyond a reasonable doubt. He explained:
What His Honor is going to tell you is that there is a principle of law known as accountability. "Accountability" means, for our purposes, that Robert Frank Russo need not have been the person who wielded whatever weapon it was that crushed the skull of Dale Smith, that he need not have been the person who cut him up. As we already know from the uncontradicted evidence from him luring him down there and then disposing of all of the evidence, if he was merely part of a plan of other people with other people acting in concert with them to plan and execute the murder of Dale Smith -- no pun intended --then he is, under the law, guilty of murder. . . . The uncontradicted evidence beyond any doubt indicates that Robert Russo planned alone or with others and executed alone or with others the death of Dale Smith.
Id. at 75-77. The prosecutor also described Petitioner as a butcher during closing argument, stating, "Robert Frank Russo is a butcher of the truth, Robert Frank Russo is a butcher of a human being . . . ." Id. at 81. Finally, the State concluded its rebuttal argument by stating:
Ladies and gentlemen, you speak for the people of this community. You will decide what is right, you will decide what is just in this case, and there are only two things that stand between the killer among us walking out of this room: The evidence and the jury. And I'm asking you to make the decision that the evidence compels you to make, the decision, the verdict of guilty.
After closing arguments, the court read instructions to the jury, including two instructions at issue here. First, the court informed the jury that "[t]he believability of a witness may be challenged by evidence that on some former occasion he made a statement or acted in a manner that was not consistent with his testimony in this case," and such evidence "may be considered by you only for the limited purpose of deciding the weight to be given to the testimony you heard from the witness in this courtroom." Id., at 106-07. Second, the court instructed:
A person is legally responsible for the conduct of another person when, either before or during the commission of the offense, and with intent to promote or facilitate the commission of the offense, he knowingly solicits, aids, abets, agrees to aid, or attempts to aid the other person in the planning or commission of the offense.
A person who is legally responsible for the conduct of another may be convicted for the offense committed by the other person even though the other person, who it is claimed committed the offense, has not been prosecuted or has not been convicted.
Id. at 107. The judge also instructed the jury based on the principal theory of guilt.
Petitioner appealed his conviction and sentence. He argued that:
(1) the trial court erroneously allowed Mary Russo to testify in violation of the Illinois marital privilege;
(2) he was convicted on insufficient evidence;
(3) the trial court should have granted him a substitution of judge based on the judge's involvement in Mary Russo's sentencing; and
(4) he was entitled to an additional day of credit against his sentence.
The appellate court rejected his arguments and affirmed.
Petitioner then filed a petition for leave to appeal (PLA) in the Illinois Supreme ...