Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 1:05-cv-05692-William J. Hibbler,Judge.
The opinion of the court was delivered by: Williams, Circuit Judge.
ARGUED NOVEMBER 30, 2009-DECIDED JANUARY13, 2011
Before KANNE, ROVNER, and WILLIAMS,Circuit Judges.
Irving Cross was arrested and charged with several counts of kidnapping and sexual assault in connection with the alleged rape of a woman Cross claimed was working as a prostitute. According to
"We substitute Marcus Hardy, the current warden of Stateville Correctional Center, as the Respondent in this action. See Fed. R. App. P. 43(c)(2). Cross, the complainant consented to the sexual contact in exchange for money and drugs. During Cross's first trial, the jury returned a verdict of not guilty on the kidnapping count but was unable to reach a verdict as to the sexual assault counts. At Cross's retrial on the sexual assault charges, the jury found him guilty of sexual assault, but not guilty of aggravated sexual assault. Cross raised several challenges to the trial court's evidentiary rulings, including its finding that the complainant was unavailable, which permitted the admission of her testimony from the first trial during the second trial. The Illinois appellate court rejected Cross's arguments and affirmed the conviction. Cross later filed a federal habeas petition pursuant to 28 U.S.C. § 2254, which the district court denied. Cross now petitions this court for review, arguing that the state courts improperly concluded that the complainant was unavailable. We find that the state failed to demonstrate that it employed good faith efforts to locate the complainant and that the state appellate court unreasonably applied federal law when it concluded that the complainant was unavailable. Therefore we grant the petition and remand for further proceedings consistent with this opinion.
On August 6, 1998, Irving Cross was arrested for sexually assaulting a 19-year-old woman (only identified by her initials, "A.S.") at knifepoint thirty minutes before the arrest. Cross maintained that the sexual contact was consensual and that he had given the complainant money and drugs in exchange for sex. Cross was charged with several counts of criminal sexual assault, aggravated sexual assault, and aggravated kidnapping. He was tried before a jury in November 1999. Before trial, Cross filed an answer to pretrial discovery in which he asserted a consent defense and sought to introduce evidence that A.S. told the doctor who examined her after the incident that "she had been a hooker up until last week" and that she "has used rock cocaine." Cross also sought to introduce his statement to police from the night of the incident, in which he described meeting A.S. at a bus stop in Chicago, giving her money to purchase crack cocaine, smoking the drugs with her in the backyard of an abandoned house, and then having consensual sex with her. The state filed motions in limine to preclude Cross from asking about A.S.'s background as a prostitute, her drug use, and Cross's statements to police. The trial court granted the state's motions, finding that any statements about A.S.'s history as a prostitute were barred by Illinois's rape shield statute, 725 ILCS § 5/115-7, and that the alleged prior prostitution was not relevant to whether she consented to sexual contact with Cross on the night in question. The trial court also granted the state's motion with respect to Cross's statements to police and the evidence of A.S.'s drug use, which the court found would only be relevant if it showed that A.S. used drugs on the day of the incident or the day before, as that could affect her ability to observe and recall the incident.
At trial, A.S. was the state's primary witness, but her demeanor and manner of testifying appeared to raise some concerns about her credibility. She was both evasive and hesitant in answering questions, and, according to the trial court, her testimony was filled with long pauses, as demonstrated by the trial court's observation that A.S. took an average of two minutes to answer each question. The jury returned a verdict of not guilty on the aggravated kidnapping counts. On the sexual assault charges, the jury was hung, and the court declared a mistrial.
In early 2000, the state reinitiated its efforts to prosecute Cross, and the second trial was scheduled for March 29, 2000. During a March 20th status call with the trial judge, the prosecutor indicated that it had not been able to locate A.S. On March 28-a week later and the day before the second trial was to begin-the state filed a motion to declare A.S. unavailable and to use her earlier testimony at Cross's second trial. The state described its investigation into A.S.'s whereabouts as follows: On March 3, an investigator interviewed A.S.'s mother and brother, neither of whom knew where A.S. was. A.S.'s mother also conveyed to the investigator that A.S. was "very fearful and very concerned" about testifying again. The investigator interviewed A.S.'s father on March 9 or 10, and he said he knew nothing about A.S.'s whereabouts. The investigator also checked the county hospital, jail, and morgue.
The state also reported in its motion that it learned from A.S.'s mother on March 10 that A.S. had left home the day before and had not returned. At this point, the state's attorney's office enlisted the help of a detective and a victim's advocate to help locate A.S. The detective duplicated many of the previously unsuccessful search efforts, including visiting the residences of A.S.'s mother and father. On one visit, the mother in-formed the detective that A.S. could be staying with an ex-boyfriend in Waukegan, Illinois, a city located forty miles north of Chicago. When the detective went to the Waukegan address, the ex-boyfriend's mother informed him that she had not seen A.S. in several months and that A.S. was not staying with her or her son. During another visit to A.S.'s mother's home, A.S's mother advised the detective that A.S. had called her two weeks earlier and told her that she did not want to testify and would not return to Chicago. The victim's advocate also called A.S.'s mother, who told the advocate that A.S. might be with an ex-boyfriend in Waukegan and that A.S. was enrolled in cosmetology school in another city. Cross then objected to the state's motion to declare A.S unavailable, arguing that the state had not acted in good faith and had not made all feasible efforts to locate A.S. such as looking into certain prominent places that A.S. allegedly frequented. Cross also argued that A.S.'s absence was temporary and did not amount to unavailability. Finding that the state had acted in good faith and expended reasonable efforts to locate A.S., the trial court granted the state's motion to substitute A.S.'s testimony from the first trial at Cross's retrial.
At Cross's second trial, a law clerk from the state's attorney's office read A.S.'s testimony into the record. The law clerk's rendition did not reflect A.S.'s hesitance or lengthy pauses from the first trial, and at times, the law clerk spoke with an inflected tone of voice. When Cross objected to the law clerk's "acting," the trial court instructed the state to "tell her to answer the questions [because] there's a slight inflection on some of her answers." At the conclusion of the trial, the jury returned a verdict of guilty of two counts of sexual assault, and not guilty of aggravated sexual assault. The trial court sentenced Cross to 30 years' imprisonment for each count to be served consecutively.
On direct appeal to the Illinois appellate court, Cross challenged several aspects of his conviction, including the trial court's suppression of evidence relating to A.S.'s alleged prostitution and drug use and the state's use of the transcript of her former testimony, which Cross argued was a violation of his Sixth Amendment right to confrontation. Although the appellate court "acknowledge[d] concerns" about the absence of live testimony- particularly where the absent witness is the sole eyewitness whose credibility may be crucial-the appellate court affirmed the trial court's finding that A.S. was unavailable based on her apparent desire to avoid being located. The appellate court also agreed with the trial court's determination that the state had met its burden of demonstrating that it engaged in a good faith diligent search to locate A.S., ultimately affirming Cross's conviction and sentence.
The Illinois Supreme Court denied Cross leave to appeal, and Cross filed a petition for a writ of certiorari in the Supreme Court of the United States. After briefing by both parties, the Supreme Court denied the writ. Cross then filed a 28 U.S.C. § 2254 petition with the district court in which he raised Sixth Amendment and due process challenges to several of the trial court's evidentiary rulings, including its finding that A.S. was unavailable. The district court rejected these arguments and denied the petition, finding in part that Cross had failed to demonstrate that the state courts' findings concerning A.S.'s unavailability were an unreasonable application of federal law. Cross now appeals from the district court's denial of his habeas petition and raises ...