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George Rivera v. Marcus Hardy

February 22, 2011

GEORGE RIVERA, PETITIONER,
v.
MARCUS HARDY, RESPONDENT.



The opinion of the court was delivered by: Matthew F. Kennelly, District Judge:

MEMORANDUM OPINION AND ORDER

In May 2004, an Illinois jury convicted George Rivera of first degree murder, aggravated vehicular hijacking, and five counts of armed robbery. The trial judge sentenced Rivera to fifty-five years of imprisonment on the murder charge to be served concurrently with six concurrent ten-year prison terms on the vehicular hijacking and armed robbery charges. Rivera now petitions the Court for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. For the following reasons, the Court denies Rivera's petition.

Background

A. State court trial

State court factual findings are presumed correct in a federal habeas corpus proceeding unless they are rebutted by clear and convincing evidence. See 28 U.S.C. § 2254(e)(1); Mahaffey v. Schomig, 294 F.3d 907, 915 (7th Cir. 2005). Because Rivera has not rebutted the Illinois Appellate Court's factual findings with clear and convincing evidence, the Court adopts the following account from the decision of that court in People v. Rivera, No. 1-04-2164, slip op. (Ill. App. Nov. 16, 2006):

On February 13, 2000, Frederick Jamison (Frederick) was fatally shot in the head in connection with a faked drug transaction and arranged robbery. In the transaction, known as a "lick," defendants lured Frederick and others to a specified location on the premise of selling them a large quantity of marijuana and then robbed Frederick and the others of the money while pretending to be police officers. [Rivera] was arrested on February 15, 2000, and charged in a 38-count indictment for felony-murder based on aggravated vehicular hijacking and felony-murder based on armed robbery; and also with five counts for the armed robbery and aggravated vehicular hijacking of Roderick Jamison, Corey Brown, John Smith, Jonathan Stevenson, and Leroy Presley. Numerous co-defendants were also charged.

At trial, Roderick Jamison (Roderick) testified on behalf of the State that on the night of February 13, 2000, at approximately 8 p.m., he and his brother Frederick, received a phone call regarding the purchase of 40 pounds of marijuana. Roderick and Frederick and their friends Brown, Smith, Stevenson and Presley, drove to Cristo's Alarm Shop, an automobile repair facility in two vehicles. Frederick brought $28,000 cash and drove his white Ford Expedition SUV to the back of the shop, exiting the vehicle to speak with co-defendant Alvarez who was waiting in the garage.

As Roderick and the others awaited delivery of the marijuana, a Hispanic man with long hair, carrying a bag in his hand entered the shop and spoke with Alvarez (a/k/a "Cristo"). The Hispanic man and Alvarez went into a back room and then the Hispanic man emerged a minute later. The Hispanic man left the building through the garage but returned four to five seconds later, along with four or five gunmen carrying automatic weapons. One of the gunmen, later identified as [Rivera], yelled, "Police, freeze, everybody get down!" Roderick stated that none of the gunmen wore police uniforms, bullet-proof vests or badges. The gunmen ordered Frederick and his friends to lay on the ground and robbed them while [Rivera] jumped into Frederick's Expedition and backed it out of the garage. Alvarez and the long-haired man who brought the bag, later identified as co-defendant Martinez, were also forced to the floor.

The gunmen searched for money but could not find it. Harris told Roderick to stand up, placed a gun in Roderick's mouth and demanded to know the whereabouts of the money. Harris stated: "These bitch ass niggers don't want to play. I want the money or he gonna die." Smith jumped up and stated: "I'll take you where all the money, I'll take you where all the money." One of the gunmen walked Smith out of the garage. At the same time, the other co-defendants were beating and kicking Jamison and his friends. After a while, Smith returned to the garage and someone yelled, "We got it, we got it. Let's go, let's go." As the gunmen left the garage, co-defendants Taylor and Harris fired their guns hitting Frederick in the head. After the gunmen left, Roderick called 911 and the others began beating Alvarez and Martinez, believing them to be a part of the robbery scheme. The police arrived and transported everyone present to the police station in police vehicles.

On cross-examination, Roderick stated that when he initially spoke to the police, he did not admit that he and his friends intended to purchase marijuana, but two hours later he finally told the police about the plan. Roderick described [Rivera] as a man who had a "funny, little face," with high cheek bones and a "funny smirk" upon entering the garage. According to Roderick, [Rivera] was in the garage for approximately five minutes before getting into Frederick's Expedition and driving away.

Jonathan Stevenson testified that he was with Frederick, Roderick and the others when they went to the shop, riding in Frederick's Expedition. Upon arrival, Frederick pulled the Expedition into the garage and got out, but Stevenson stayed in the truck for about a half-hour longer watching the All-Star game on the television in the vehicle with the others. Suddenly they heard someone say, "Freeze, Police!" Stevenson and the others were forced out of the Expedition by [Rivera], armed with an automatic weapon, and told to lay face down on the ground. One of the gunmen took Stevenson's wallet and money while other gunmen robbed Stevenson's friends. Stevenson was on the ground for about thirty minutes. During that time, someone got into the Expedition and drove it off. As the gunmen were leaving, he heard someone state, "I'm gonna make an example of these guys," and then he heard gun shots ring out. When he looked up, Frederick lay bleeding on the ground. The next day, Stevenson identified co-defendant Taylor in a police lineup.

On cross-examination, Stevenson admitted that he had three prior convictions for delivery of a controlled substance, burglary and possession of a controlled substance with intent to deliver. Stevenson denied knowledge that a marijuana purchase was to occur at the alarm shop. Stevenson stated that he did not go to the police station immediately following the shooting because he wanted to see Frederick at the hospital. Stevenson stated that he went to the police station after one of Brown's friends told him to go. Stevenson did not identify [Rivera] as one of the gunmen.

Leroy Presley Jr., testified that he and Frederick were friends since childhood and that they were together on February 13, 2000. Presley acknowledged that he was convicted of possession of a controlled substance in 1994, and of possession of cannabis with intent to deliver in 2003. Presley stated that he was with Frederick and the others when they decided to go to Cristo's. Presley drove to the shop in his 1994 Buick Regal accompanied by Roderick. Upon arrival, Presley entered the shop to purchase a Fix-A-Flat for a flat tire. Upon his exit, Presley saw that Frederick's Expedition was in the garage and that two of his friends were sitting in the truck watching television. Presley testified that everyone was waiting to purchase marijuana. While they were waiting, a Mexican man with long hair (co-defendant Martinez) entered the shop holding a red duffel bag, and walked into the back office. After a while, Martinez emerged without the bag, walked out of the front door, and then returned a second later with a group of other men. The men that entered the shop screamed, "We the police. Get on the floor." All of the men were armed. Presley described the gunmen as "light skinned guy with freckles; a dark skinned guy with braids * * * a brown skinned kind of Hispanic that looked black [and] a light skinned Mexican." In court, Presley identified [Rivera] as one of the gunmen. Presley stated that the gunmen forced him and his friends to the ground, then [Rivera] got into Frederick's Expedition and drove off. At the same time, the other gunmen demanded to know where the money was and Presley and his friends responded that the money was in the truck. Co-defendant Taylor forced Roderick to stand up and take off his clothes. Roderick began to take off his shirt and pants when somebody knocked on the door and stated, "we got it." The gunmen forced Presley and his friends to stand up and face the wall, their backs to the gunmen. Someone turned off the lights and one of the gunmen fired a shot. Presley saw that Frederick was on the ground and had been shot. Presley stated that the entire incident took approximately 35-40 minutes and that the gunmen were in the garage for approximately 20-30 minutes.

On cross-examination, Presley admitted that he knew of the intent to purchase marijuana at the shop. Presley stated that [Rivera] was the first gunman to enter the shop and that [Rivera] pulled Stevenson and Brown out of the Expedition. [Rivera] was in the garage for approximately five minutes prior to taking the truck. Presley stated that the money for the marijuana purchase was under the seat when [Rivera] took the truck.

Corey Brown testified that he was a passenger in the Expedition when the gunmen entered the garage. Stevenson was in the truck watching the All Stars game on television with Brown. Brown stated that he was hit by a "white Hispanic," whom he later identified as [Rivera], and told to get on the ground. Brown remained on the ground for approximately 20-30 minutes while a "light-skinned black" with freckles took his ID and money out of his pocket. Brown stated that the "white Hispanic" who forced him out of the truck drove it out of the garage, while the other gunmen repeatedly asked everyone to reveal the location of the money for the marijuana sale. After a short time, a man entered the garage and said they found the money and the gunmen began to retreat out of the garage. Brown and his friends were told to stand against the wall of the garage and the gunmen fired shots at them.

Following the incident, Brown viewed a line-up at the police station and identified co-defendant Taylor as one of the gunmen who took his identification and money. Brown acknowledged that he had been convicted of possession of a controlled substance in 1994.

On cross-examination, Brown denied prior knowledge that Frederick was going to purchase marijuana at the shop. Brown stated that he learned about the drug transaction later that night, after the shooting occurred. Brown further stated that the Hispanic man who forced him out of the [E]xpedition hit him "upside the head," and told him to get down on the ground.

John Smith testified that he went to the alarm shop along with Frederick and his friends so that Frederick could purchase some marijuana. While awaiting delivery of the marijuana, four men rushed into the garage yelling that they were the police and telling everyone to get on the ground. All of the men were holding guns. [Rivera] ran into the garage ahead of the others, grabbed Brown and Stevenson out of the truck, jumped into the truck and drove it out of the garage. The other three gunmen robbed and beat Stevenson and his friends and forced Roderick to stand up and take off his clothes. Smith heard one of the defendants say: "we fittin' to kill 'em if they don't give us this money." At that point, Smith stood up and told them that the money was inside the truck. Co-defendant Taylor walked Smith outside to try to find the money. Once outside, they noticed that the truck was already gone. Smith returned to the garage and was forced to stand against the wall. One gunman, later identified as Roman, turned off the light in the garage and fired a shot, hitting Frederick. After the gunmen left, Smith began to beat up Martinez because he believed Martinez knew the gunmen and was part of the robbery plot.

Smith identified [Rivera] and co-defendants Roman and Taylor from a police line up. Smith acknowledged a prior conviction for manufacture and delivery of a controlled substance in 1998, unlawful use of a weapon by a felon in 2000, and that he had a pending felony case in Kane County.

On cross-examination, Smith stated that his phone and some money were taken from him. Smith also stated that Roderick told him to tell the truth about what happened because Frederick was dead.

Jason Rickard was called to testify on behalf of the state but invoked his fifth amendment right against self incrimination. In response, the trial court stated:

"Mr. Rickard, the Fifth Amendment right is not something you can just will-nilly invoke, there has to be a reason to invoke it, and the State's position is and from what I know of this case is you don't have a right to a Fifth Amendment on this case. State is not going to ask you anything that you have not previously testified to in front of a Grand Jury."

The trial court then assigned an assistant public defender to speak to Rickard regarding his right against self-incrimination and to discuss any further concerns Rickard had about testifying at trial. Rickard's testimony was postponed pending review of the grand jury transcript and Rickard's prior written statement. Chicago Police Department forensic investigator, John Paulson, testified on behalf of the State that he photographed the area around Cristo's Alarm shop and the Ford Expedition truck. Paulson stated that he was unable to find any suitable fingerprint impressions on the car. On cross-examination, Paulson stated that there were no impressions anywhere on the exterior of the car, including the glass, the door, the door handles or the hood of the car.

Chicago police Detective Thomas Flaherty testified that he investigated the crime scene, then went to the hospital where he learned that Frederick died from gunshot wounds. Detective Flaherty located and interviewed co-defendant Martinez, and noticed that Martinez had multiple bruises and abrasions around his face and head. The next day, Detective Flaherty learned that [Rivera], Taylor, and Roman were suspects in the case.

Detective Flaherty stated that Roderick and Smith identified [Rivera] [in] a police line up, but that Presley, Brown and Stevenson did not identify anyone from that line up. On cross-examination, Detective Flaherty stated that when he initially interviewed the victims, they did not inform him that the incident involved a drug transaction.

Cook County Medical Examiner Mitra Kalelkar, a forensic pathologist, testified that she conducted an autopsy of Frederick Jamison and determined his cause of death was a gunshot would to the face involving the heart and lung. The examination did not reveal that the body had been kicked, bruised or hit by a blunt instrument. Dr. Kalelkar noted that the body tested positive for a .012 level of alcohol.

The trial court then ordered Rickard to testify over defense counsel's objection.

In order to avoid charges of contempt of court, Rickard agreed to testify. Rickard testified he lived with [Rivera] for four months prior to the robbery in February 2000. Rickard stated that he knew co-defendant Roman from the neighborhood. On February 13, 2000, Rickard, Taylor and Guevara got together and discussed a robbery. Rickard denied that the conversation concerned a "fake drug deal," despite the fact that Rickard had previously admitted that [Rivera] and Taylor told Rickard they planned a "lick," a street term for obtaining money.

The State used Rickard's prior statement to impeach him. The statement is as follows: Rickard admitted that he knew about the robbery plan and that after hearing about it, he drove around with [Rivera], Taylor and Guevara. The group drove to 22nd Place and Cermak Avenue, a location where Taylor told them to go. Rickard stated that they wanted to look at a restaurant to see where Guevara "was going to set up the fake drug deal." After looking at a restaurant in front of the alarm shop, Rickard and [Rivera] went to [Rivera]'s mother's house. Co-defendant Roman pulled up in his car and they continued to talk about the robbery plan.

Rickard's statement further provided that the robbery was set for 6 p.m. at a garage located behind a restaurant. When Guevara first explained the details of the robbery, Rickard asked if anyone had any guns. Guevara told the others that he located some guns for everyone. The plan was for Guevara and [Rivera] to meet some men at the restaurant and talk to them. Rickard was supposed to sit in the car and wait for the others to give him the robbery proceeds, then Rickard was to drive away. Taylor told Rickard that he would be compensated for his role in the robbery. Rickard told Guevara that if the robbery did not begin soon, he would have to leave because he had plans to see Disney on Ice with his girlfriend that evening.

On cross-examination, Rickard testified that after the robbery he was taken to the police station and placed in an interrogation room. Richard told police officers that he did not know anything about a "lick" and he denied that he ever met with co-defendant Roman that day. Rickard stated that he was told what to say in his statement by the officers, and that he was threatened into giving a statement. Rickard denied the truthfulness of his statement. Rickard admitted that on February 22, 2000, detectives picked him up at his house and brought him to the courthouse to testify before the grand jury. Rickard stated that he was threatened into testifying and that he was scared at the time he signed his statement.

On re-direct, Rickard admitted that at the time he gave his statement to police officers and an Assistant States [sic] Attorney (ASA), defendants were in custody and not present in the room. Neither were defendants present at the time Rickard testified before the grand jury. Rickard stated that he was at the police station for a "long" time, but the State impeached Rickard on this issue with his prior testimony that the detectives picked him up at 10 a.m. and he signed the statement at 11:30 a.m. Rickard denied that he told anyone any times.

ASA Margaret Wood testified that in early February 2000, she interviewed Rickard at approximately 10:30 a.m. in a large "roll call" room at Area 4 Police headquarters, rather than a small interrogation room. Chicago Police Sergeant Brian Holy was also present in the room. ASA Wood identified herself to Rickard as a lawyer and a prosecutor and explained that she was not his lawyer. Rickard answered all of her questions about the robbery in about 30-45 minutes. ASA Wood explained to Rickard that she would transcribe his oral statement and leave it for him to read through and check for accuracy. ASA Wood asked Sergeant Holy to leave the room once Rickard agreed to the handwritten statement. ASA Wood then asked Rickard whether he had any complaints about his treatment and he stated that he had none; he received ...


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