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Nicole Harris v. Sheryl Thompson

December 14, 2011

NICOLE HARRIS PETITIONER,
v.
SHERYL THOMPSON, WARDEN, DWIGHT CORRECTIONAL CENTER, RESPONDENT.



The opinion of the court was delivered by: Judge James B. Zagel

MEMORANDUM OPINION AND ORDER

This case involves the tragic death of a four-year-old child, Jacquari Dancy. Petitioner Nicole Harris ("Petitioner" or "Harris") is prisoner number R80396 in the Illinois Department of Corrections. She is presently being held in the custody of respondent Sheryl Thompson, the warden of the Dwight Correctional Center, a maximum security adult female penitentiary. Petitioner is serving a thirty-year sentence for first-degree murder. She was convicted by an Illinois jury for murdering Jacquari, who was her son.

The implement of Jacquari's death was a loose elastic cord from a fitted bed sheet which was wrapped around his neck and had strangled him to death. The State of Illinois claimed Petitioner murdered her son with the bed cord, intentionally wrapping it around his neck because he was insolent and would not stop crying; Petitioner swears that her son's death was a tragic accident in which Jacquari himself, either intentionally while playing or unintentionally, wrapped the cord around his own neck.

Indisputably the most significant piece of evidence in Petitioner's trial was her detailed videotaped confession to the crime, a confession which took place in the Chicago Police Department's Area 5 Headquarters on the day after Jacquari's death. To counter the obvious effect of this confession, Petitioner took the witness stand and testified in her trial, claiming that her son's death was an accident and that she was coerced into providing the confession.

The jury convicted Petitioner, an Illinois Appellate Court affirmed, and the Illinois Supreme Court declined to hear the case. In this court, Petitioner seeks relief via writ of habeas corpus, making four general claims. For the following reasons, the requested relief must be denied. Petitioner is granted a certificate of appealability with respect to her third and fourth claims.

I. BACKGROUND

The facts as determined by the state court are presumed to be correct in the absence of clear and convincing evidence to the contrary. 28 U.S.C. § 2254(e)(1); Daniels v. Knight, 476 F.3d 426, 434 (7th Cir. 2007). Petitioner has disclaimed any argument under § 2254(e)(1). I therefore largely adopt the background facts and procedural history as laid out by the Illinois Appellate Court, First District, see United States ex rel. Hemphill v. Hardy, 2011 U.S. Dist. LEXIS 75519 (N.D. Ill. Jul. 13, 2011).

A. Facts

In the afternoon of May 14, 2005, his father, Sta-Von Dancy, discovered Jaquari's lifeless body on the floor of his bedroom. People v. Harris, 904 N.E.2d 1077, 1079 (Ill. App. Ct. 2009). An elastic cord or band dangling from a fitted sheet on the top bunk was wrapped repeatedly around Jaquari's neck. Id. Sta-Von unwrapped the band and began mouth-to-mouth resuscitation. Id. When Jaquari failed to respond, Sta-Von picked him up and ran outside. He encountered Petitioner, who had returned from the laundromat and was parking her car. Id. at 1079-80. They rushed off in search of a hospital, with Petitioner driving and Sta-Von continuing his CPR efforts. Id. at 1080. An ambulance eventually met them and Jacquari was taken to Resurrection Hospital on the Northwest side of Chicago, where he was pronounced dead. Id.

The Initial Investigation

In the evening of May 14, Chicago police officers were summoned to Resurrection to begin their investigation into Jaquari's death. Id. Detective Randall Wo met with Petitioner and Sta-Von in a family room about 7:15 p.m. and after expressing sympathies had a brief conversation with the parents. Id. Wo testified that it was customary in child death investigations to ask parents to assist in the investigation and both Sta-Von and Petitioner agreed to come to the station. Id. Although Petitioner was given the option of driving her own car to Area 5 headquarters, she was too emotional and instead elected to ride in a police car. Id. The parents arrived at the station between 8 and 9 p.m. Id.

Detective Anthony Noradin was among the team of officers assigned to the death investigation. Id. Initially, he was basically told that "there was a four-year-old child they found with an elastic band wrapped around his neck." Id. There was no indication that this was a murder investigation. Id. Detective Noradin and his partner, Detective Kelly, interviewed Petitioner at 9 p.m. in the "quiet room," a sensitive room used mainly for victims of sexual assaults. Id. The room is approximately 18 by 12 feet, with a table and chairs, a television, telephone and a computer. Id. Petitioner was not restrained; her five-year-old son Diante was seated on her lap. Id. The detectives asked questions concerning background information as well as the family's activities during the day. Id. Her responses gave the officers no reason to believe that Jaquari's death was the result of anything but an accident. Id. Following this 25- to 30-minute conversation, the detectives left Petitioner and Diante in the room with the door open. Petitioner was not told she was under arrest nor was she told that she was free to leave. Id. The detectives passed the results of their conversation to other detectives who were about to interview Sta-Von. Id. It is customary interviewing practice to separate witnesses during investigations. Id.

Petitioner's Arrest and Custodial Interrogation*fn1

As the investigation continued, Detectives Balodimas and Landando left the station to re-canvas the family's apartment building at 2004 North LaPorte in Chicago. Id. After speaking with other tenants, they returned to the station to confront Petitioner with some of the inconsistencies between her earlier comments and what they had learned from her neighbors. Id. Detective Balodimas told Petitioner that contrary to her earlier statement, the neighbors said that she had struck her children that day with a belt, rather than with her hands. Id. They spoke for about fifteen minutes and toward the end of the conversation, Petitioner told the officers that when she returned from the laundromat, she got mad when she saw Jaquari and Diante outside. Id. She then broke down, started crying, and spontaneously stated, "I wrapped the phone cord around Jaquari's neck and then I wrapped the elastic band from the bed sheet around his neck to make it look like an accident." Id. Detective Landando immediately stopped the questioning and read Petitioner her Miranda rights from his Fraternal Order of Police book. Id. According to Noradin, Petitioner acknowledged them, saying: "I understand my rights. I have a degree from Southern University of Illinois. I understand my rights." Id. at 1080-81. She was then placed under arrest and moved to Interview Room A, a secure room. Id. at 1081 Although the room has a metal bench and handcuff bar, Petitioner was not restrained. Id. The questioning did not resume at this time. Id.

At 1:40 a.m., Noradin and Kelly returned to the interview room and again spoke with Petitioner. Id. Noradin informed her that an assistant State's Attorney would be coming out to memorialize her statement. Id. In turn, Petitioner recanted, denying that she caused Jaquari's death. Id. The conversation lasted but five minutes. Id.

The detectives next spoke to Petitioner at about 2:25 a.m. at which time she agreed to take a polygraph examination. Id. Arrangements were made to do the examination later that morning. Id. At 11:30 a.m., Noradin took Petitioner to the polygraph section located at 1819 West Pershing Road. Id. Sta-Von was taken there in another car having likewise agreed to the examination. Id. Investigator Bartik, the polygraph examiner, first spoke to the detectives concerning the facts of the case. Id. He met with Petitioner at 12:45 p.m., at which time she signed the polygraph consent, which included her Miranda waiver. Id. At no time did she elect to remain silent or request an attorney. Id. The examination took about an hour and a half and Petitioner answered the questions coherently. Id. Although Bartik could not determine whether Petitioner was telling the truth, he informed the detectives that she had made certain statements that were inconsistent with earlier accounts as well as information provided by Sta-Von. Id. In turn, the detectives re-interviewed Petitioner at the polygraph section and were then told that after Petitioner took Jaquari back into the bedroom, she spanked him again, grabbed the elastic band from the top bed sheet, put it around his neck, laid him on the top bunk and then left. Id.

Petitioner was returned to Area 5 and again placed in the "quiet room." Id. At 7:10 p.m., she again spoke with Balodimas, Landando and Noradin. Id. After being reminded of her rights, Petitioner was confronted with the fact that because there was a bed rail around the bunk, there was no way Jaquari could have rolled off the bed and fallen to the floor. Id. The Petitioner then stated she wanted to tell the truth; that she wrapped the elastic band around Jaquari's neck three to four times and pulled it until he stopped crying. Id. She saw blood coming from his nose, laid him down and then left. Id. In turn, Noradin called the State's Attorney's office and asked for a felony review assistant to come to the station. Id.

Assistant State's Attorney Lawrence O'Reilly had been summoned earlier to Area 5 on another investigation. Id. Because the detectives on that matter did not need him immediately, he agreed to help with this case. Id. O'Reilly, together with Detectives Noradin and Cordero, met with Petitioner around 8:30 p.m. in the "quiet room," which O'Reilly described as an office, a yellow room "with butterflies and ladybugs and things" painted on the wall. Id. After introducing himself and making it clear that he was an assistant State's Attorney and not Petitioner's lawyer, O'Reilly "Mirandized" the Petitioner. Id. She acknowledged her understanding and agreed to tell him what had happened to Jaquari. Id.

According to Petitioner, on the prior day, she and Sta-Von left for the laundromat late in the afternoon, instructing both children to remain inside. Id. They spent thirty to forty minutes there and on returning home found Jaquari outside with older boys, kids who were seven and eight. Id. She took Jaquari to his bedroom, pulled down his pants and spanked him with a belt.

Id. at 1081-82. She spanked her other son too and left both children in the bedroom. Id. at 1082. Jaquari would not stop crying so Petitioner told him: "There's nothing wrong with you. Stop crying." Id. The crying continued. Id. She reentered the children's bedroom and grabbed the elastic portion of the fitted sheet from the top bunk and wrapped it around Jaquari a number of times. Id. He had a little bit of blood coming from his nose and eventually he stopped crying and squirming. Id. She left Jaquari in the bed with the elastic band around him. Id. Her boyfriend was asleep in their bedroom and Petitioner then went back to the laundromat to finish her laundry. Id. She returned about thirty minutes later and after double parking in front of the house, brought the laundry to the door and rang the bell. Id. Her boyfriend responded and took the laundry and Petitioner went back to park the car. Id. When she returned, the boyfriend was holding Jaquari, who was discolored and not breathing. Id. They then got into the car and started to the hospital, calling 911 en route. Id.

Toward the end of the interview, and out of the presence of any police officers, O'Reilly asked Petitioner how she had been treated by the police. Id. In response, Petitioner stated that she had been treated well. Id. He then explained various ways to memorialize her statement and Petitioner agreed to do a videotaped statement. Id. O'Reilly then left to make arrangements and secure the consents and paperwork. Id. As he walked out he was met by Andrea Grogan, the felony review assistant who had actually been called on Jaquari's death investigation. Id. He turned the case over to Ms. Grogan and returned to the investigation to which he had originally been assigned. Id.

Assistant State's Attorney Grogan interviewed Petitioner at 9:20 p.m. in the "quiet room" with Noradin, Balodimas and Cordero. Id. After explaining her role as an assistant State's Attorney, Grogan advised Petitioner of her Miranda rights, which Petitioner acknowledged. Id. They then spoke for about 40 minutes, and toward the end of the interview, the detectives were asked to leave the room. Id. In response to Grogan's inquiries, Petitioner then told her that she had not been forced or threatened to speak, that she had been treated fine by the detectives, provided food and drink and allowed to use the bathroom. Id. In a second conversation at about 11:45 p.m., Petitioner chose to give a videotaped statement and appropriate arrangements were made. Id. The statement was actually videotaped at 1:06 a.m. on May 16, and lasted about 20 minutes. Id. The videotape, together with its transcription were admitted during the trial and were likewise reviewed by the appellate court. Id.

In the pretrial proceedings, Petitioner filed a motion to suppress statements wherein she alleged inter alia that she was never given her Miranda warnings, that she was incapable of understanding them and that she was subjected to physical and mental coercion. Id. Responding to those allegations, all of the police personnel and assistant State's Attorneys involved in the investigation testified that Petitioner was duly admonished of her rights, acknowledged her understanding and agreed to waive them. Id. Likewise, all of the officers denied any physical or mental coercion, specifically, that Petitioner had been shoved, poked or handcuffed to a wall, berated or called names, made promises or subjected to any threats. Id. Further, the witnesses testified that Petitioner was provided food, drink, and water and allowed to use the bathroom. Id. She made no complaints about her treatment during the course of the investigation. Id. The Petitioner offered no evidence on the motion, choosing to reserve her challenges to the statements for presentation before the jury. In turn, the motion to suppress was denied. Id. at 1082-83.

The Trial Proceedings

At trial, the State introduced the evidence previously recounted encompassing the initial investigation, Petitioner's arrest and custodial interrogation. Id. at 1083. Assistant State's Attorneys Grogan and O'Reilly also related their involvement in the investigation, and the videotape of Petitioner's confession was introduced and published before the jury. Id.

Additionally, the State presented Sta-Von Dancy whose testimony focused on the events of the tragic day, culminating in his discovery of Jaquari's lifeless body. Id. Sta-Von testified that as he approached Jaquari, he saw that his face was purple. Id. He observed elastic wrapped tightly on his neck, close to 10 times, and succeeded in unwrapping it before taking Jaquari in his arms. Id. Sta-Von had seen the elastic before, hanging from the sheet on the top bunk reaching almost to the bottom bed. Id. Jaquari had played with the sheet before, wrapping it around his neck. Id.

The prosecution also offered testimony from Assistant Cook County Medical Examiner John Scott Denton, who conducted the post-mortem examination of Jaquari. Id. Dr. Denton had performed 2,000 to 2,500 autopsies of which 30 were strangulation cases. Id. Among Denton's significant findings were petechiae or pinpoint hemorrhages in both eyes, indicative of increased pressure around the neck. Id. There were also impression or ligature marks on Jaquari's neck, most prominent on the left side and somewhat fainter on the right. Id. Dr. Denton testified that a ligature causes arterial pressure to rise, but prevents the blood from returning back down. Id. As a result, the head becomes very congested, causing blood vessels to burst. Id. Accompanying the body was a blue fitted sheet with a protruding elastic cord. Id. The cord was consistent with and completely covered the ligature mark, an exact fit to its horizontal and vertical ridges. Id.

Although Denton was also provided a telephone cord, it did not have the horizontal marks consistent with the elastic band. Id.

Dr. Denton formed two opinions relative to cause and manner of death. Id. The first opinion was formed during the autopsy on May 15:

My opinion at the time was that this was a tragic accident, that this was a boy who was in his upper bunk bed who had become entangled with an elastic bed fitted sheet and had fallen to the ground from his upper bunk and that this was just a tragic accident that occurred and it was a hanging.

Id. Several days later, a detective informed the doctor of Petitioner's confession. Id. In turn, Denton was provided with the confession, detective reports and scene photographs of the room and the bunk bed. Id. Initially, he had understood that Jaquari had been in the top bunk, but later learned that Jaquari was actually in the bottom bed. Id. Scene photographs also depicted what appeared to be a small amount of blood on the sheets of the lower bunk. Id. He also learned that the Petitioner had struck Jaquari with a belt the afternoon of his death. Id. Based on that information, Dr. Denton issued a new opinion concluding that the cause of death was strangulation due to elastic ligature; it was an intentional injury and, therefore, homicide. Id.

The State then rested, and following the denial of Petitioner's motion for a directed verdict, the defense offered evidence comporting with its theory that the cause of Jaquari's death was accidental strangulation. Id. Consistent with that defense, Petitioner challenged the foundation and veracity of her confession, asserting that it was falsely contrived and forced upon her by police threats and promises. Id. at 1083-84.

At trial, several family members offered testimony supporting the defense theory of accidental death. Id. at 1084. Petitioner's cousin, Wanda Harris, described Diante as inquisitive and Jaquari as playful. Id. The boys would spend weekends with her playing video games and pretending to be superheroes. Id. They were constantly flipping each other and jumping up and down on the couch. Id. However, she never saw Jaquari wearing a cape or anything like that when they were playing superheroes. Id. Sta-Von testified that the boys acted out things they had seen in Spiderman movies. Id. Also, as noted, he had earlier seen the elastic protruding from the top sheet in the boy's bedroom. Id. Jaquari had played with the sheet before, wrapping it around his neck. Id. Petitioner's sister-in-law, Audrey Harris, also testified that when the boys played at her house, Jaquari "would be into things." Id. On one occasion, she had left a laundry bag hanging in her car and when she looked up, Jaquari "had that thing all over his face." Id. Additionally, the defense sought to offer the testimony of five-year-old Diante, that while the boys were alone in their bedroom on the afternoon of the occurrence, he was playing his videogame, and Jaquari was "playing with that string and wrapping it around his neck." Id. However, following a hearing, the court found that Diante was incompetent to testify in accordance with section 115-14 of the Illinois Code of Criminal Procedure of 1963. 725 Ill. Comp. Stat. 5/115-14. Id.

Petitioner testified that she was 23 years old and had graduated from Southern Illinois University with a bachelor's degree in psychology. Id. She recently began working as a psychiatric rehabilitation service coordinator at Winston Manor Nursing Home, doing group assessments with mentally ill patients. Id. The family, which included Sta-Von, herself, Diante and Jaquari, had just moved into the LaPorte Street apartment. Id. The apartment consisted of two bedrooms, a front room and a kitchen. Id. The boys shared one of the bedrooms, which contained a bunk bed, dresser and a television set. Id.

Petitioner related that in the afternoon of May 14, she washed her clothes in the laundromat across the street. Id. While the clothes were drying, she returned home and discovered Diante in the hallway. Id. The back door was open and Jaquari was outside. Id. She scolded the children for being out of the house without permission and ordered them to their room. Id. Jaquari was crying, but after Sta-Von went into the bedroom to comfort him, the crying stopped. Id. When he returned, Sta-Von fell asleep on the couch until Petitioner woke him and helped him to their bedroom, where he again fell asleep. Id.

Petitioner then went back to the laundromat and, after gathering the clothes, returned home. Id. She rang the doorbell for Sta-Von to take the clothes while she parked the car. Id. As Petitioner was parking, Sta-Von came running out with Jaquari in his hands and she asked what had happened. Id. Sta-Von said he did not know and to just get to the hospital. Id. As Petitioner drove, Sta-Von was giving mouth-to-mouth resuscitation. Id. Eventually, an ambulance met them and took Jaquari to the hospital. Before joining him, they returned home to pick up Diante. Id.

Upon arriving at the hospital, Petitioner and Sta-Von were told that Jaquari was dead. Id. They were then taken to the chapel, where they met with the doctor, a grief counselor and several detectives. Id. After about an hour, a detective asked them to come to the station for questioning, saying that it was procedure because this was not a natural death. Id. Although the police offered to let Petitioner drive her own car, she declined because she was too emotional to drive, and instead rode with Diante in a police car. Id. at 1084-85.

When they arrived at the station, Petitioner and Diante were escorted to a room that had a desk, chairs, a cabinet and computer. Id. at 1085. Detectives were in and out asking her questions about when she got up, whether she washed her clothes and other activities of the day. Id. Initially, the police treated her "okay" and she continued cooperating with them. Id. At some point they left, leaving Petitioner and Diante in the room. Id.

After several hours passed, a man from the Illinois Department of Children and Family Services named Scott Peterson came and asked if there was anywhere for Diante to go. Id. Petitioner told him that Diante could go to his grandmother's home and then signed papers giving temporary guardianship to the grandmother, Patricia Dancy. Id. As Diante was leaving, Detective Noradin removed Petitioner from the initial interview room to another room with a steel bench and a bar over it. Id. Noradin shoved her into the room and "he was, like, you're under arrest for murdering your f'g son." Id. He handcuffed Petitioner to the bar, telling her "I'm sick of your BS lies, you are sitting here playing games with us, you can't sit here and say you didn't do it because we already found the cord." Id. Petitioner started crying and said she was telling the truth. Id. She asked for an attorney, but was told she did not need one, she needed to cooperate. Id. The detectives remained in the room with her for about 20 minutes. Id. They then removed the handcuffs and left. Id. In turn, another detective arrived and told Petitioner to tell the truth; he said that he had talked to Sta-Von, who thought it was possible that Petitioner had done it. Id.

Later, the detectives returned and asked Petitioner if she would be willing to take a lie detector test and she agreed. Id. The test was scheduled for the morning and Petitioner remained in the interrogation room, leaving only once to use the bathroom. Id. Although she had a blanket with her, Petitioner was unable to sleep. Id. Noradin took her to the polygraph place, where Detective Bartik provided a consent form for her to sign and then gave the examination. Id. When it was over, Bartik began to ask questions and repeatedly accused her of lying. Id. According to Petitioner, Bartik told her, "You know what, Nicole, you are pissing me off. I've been very patient with you and you are still sitting up here, you are lying to us, you know what, you're acting like a monster." Id. Petitioner said she wanted an attorney because she was telling the truth. Id. Another detective threatened to "turn this stuff over to the state" and Bartik warned that she would "spend the rest of your life behind bars because you won't cooperate." Id.

Bartik continued asking what happened and how many times she wrapped the string around Jaquari's neck. Id. Petitioner continued shaking her head and crying and then she said, "I was, like one time," at which point Bartik left the room. Id. He returned and told Petitioner that Sta-Von said he found the string wrapped around Jaquari's neck four or five times. Id. Bartik then produced a picture of the children's bunk bed and asked Petitioner how she did it. She said that she continued shaking her head, "And then I started agreeing." Id.

Petitioner testified that Noradin then took her back to the station, where a detective named "Bobby" arranged for her to talk with an assistant State's Attorney and rehearsed the police version of events that she should tell the prosecutor. Id. The detective urged her to "do the videotape because it shows lots of emotion and you are very upset, they need to see that you're upset." Id. "Bobby" assured her that because Petitioner was cooperating, she would be charged with something like voluntary manslaughter, rather than murder. Id. at 1085-86. Detective Noradin also joined in telling Petitioner that "even if you had to go to jail for a minute, bond won't be that high; your parents could come get you out, and you can fight it from the outside." Id. at 1086.

When Assistant State's Attorney O'Reilly entered the room with Noradin and "Bobby," Petitioner provided the rendition of events she had rehearsed. Id. At one point the detectives were asked to leave the room and Petitioner told the prosecutor that she "had been shoved and stuff," but not by "Bobby," and the attorney took note of it. Id. She also told this to the female assistant State's Attorney who videotaped her statement. Id.

As she concluded her testimony, Petitioner recalled that the blue sheet on Diante's bed was ripped, but the elastic that was hanging out was still attached. Id. She denied wrapping anything around ...


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