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Henyard v. Butler

United States District Court, N.D. Illinois, Eastern Division

September 21, 2016

KIMBERLY BUTLER, Warden, Respondent.


          Gary Feinerman, Judge.

         Christopher Henyard, who is serving a life sentence for first degree murder and a thirty-year term for armed robbery in Illinois state prison, petitions for a writ of habeas corpus under 28 U.S.C. § 2254. Doc. 7. Henyard seeks habeas relief on five grounds: (1) that the trial court improperly allowed two witnesses to testify about their prior consistent statements; (2) that the prosecutor withheld from the defense an enhanced version of a surveillance video of the crime; (3) that his appellate counsel was ineffective for failing to argue that his trial counsel was ineffective for persuading him not to testify; (4) that the indictment was substantially amended without being resubmitted to the grand jury; and (5) that the prosecutor knowingly relied on perjured testimony. Henyard's petition is denied, and the court will not issue a certificate of appealability.


         A federal habeas court presumes that the state courts' factual findings are correct unless they are rebutted by clear and convincing evidence. See 28 U.S.C. § 2254(e)(1); Jean-Paul v. Douma, 809 F.3d 354, 360 (7th Cir. 2015) (“A state court's factual finding is unreasonable only if it ignores the clear and convincing weight of the evidence.”) (internal quotation marks omitted); Coleman v. Hardy, 690 F.3d 811, 815 (7th Cir. 2012) (“We give great deference to state court factual findings. After AEDPA, we are required to presume a state court's account of the facts correct, and the petitioner has the burden of rebutting the presumption of correctness by clear and convincing evidence.”) (internal quotation marks omitted). The Appellate Court of Illinois is the last state court to have adjudicated Henyard's case on the merits. People v. Henyerd, 2013 IL App (1st) 112293-U ( Ill. App. Nov. 8, 2013) (unpublished order) (reproduced at Doc. 20-25); People v. Henyerd, No. 1-08-0468 ( Ill. App. Aug. 12, 2010) (unpublished order) (reproduced at Doc. 20-20). (The state court spelled his name, “Henyerd.”) The following sets forth the facts as that court described them, as well as the procedural background of the state criminal and post-conviction proceedings.

         A. Factual Background and Trial

         Nick Martini, who owned Blue Ribbon Food Store, a grocery and liquor store at the corner of Roosevelt Road and Whipple Street in Chicago, was shot to death during a robbery on October 12, 1992. Doc. 20-20 at 2. In 1995, Henyard was convicted of first degree murder and armed robbery for his participation in the crimes, but the convictions were reversed on appeal in 1998. Ibid. In a second trial, Henyard was convicted again, but in 2003 the convictions once again were reversed on appeal. People v. Henyerd, 1-00-1717 ( Ill. App. 2003) (unpublished order) (reproduced at Doc. 20-1 at 33-77), appeal denied, 806 N.E.2d 1069 (Ill. 2003). In 2008, Henyard was tried and convicted for a third time. Doc. 7 at 1. Unless otherwise specified, the facts and testimony described below refer to Henyard's third trial.

         The key prosecution witness at trial was Milton Sims, a Blue Ribbon employee who was present when Martini was shot. Sims testified that he arrived at work shortly after 6:00 a.m. on October 12, 1992, and as he began to water down the produce, a man wearing a ski mask grabbed him, placed a gun to his neck, and directed him behind the counter. Doc. 20-20 at 2. Sims identified the man as Joseph Dixon, whom Sims knew from childhood. Id. at 2-3. Sims saw a second man, also wearing a ski mask and carrying a gun, standing behind Martini and rummaging through the store's safe. Id. at 3. Sims identified that man as Henyard, with whom Sims had grown up in the neighborhood. Ibid. Martini and Henyard struggled, Sims heard a gunshot, Martini fell with what proved to be a fatal wound to his back, and Henyard and Dixon left the store. Ibid.

         A convicted felon, Sims had worked periodically at Blue Ribbon since 1983. Ibid. On several occasions he had been fired for stealing money, but Martini had rehired him repeatedly, including in October 1992, shortly before the murder. Ibid. Sims testified that in August 1992, Dixon approached Sims, told Sims that he was going to rob Blue Ribbon, and asked Sims detailed questions about Blue Ribbon's hours and security, which Sims answered. Id. at 3-4. On October 9, 1992, three days before the robbery, Henyard and Dixon approached Sims and asked about Blue Ribbon's security, when the store opened, how early staff arrived, and whether the store received deliveries. Id. at 4. After Sims answered those questions, either Henyard or Dixon told Sims that they would give him some money after they robbed the store; Sims, however, did not believe that the men would actually rob the store or kill Martini. Ibid.

         On October 12, 1992, when the police arrived at Blue Ribbon after Martini's murder, Sims did not tell them that he knew who the perpetrators were. Ibid. Sims returned to store two days later and spoke to a detective, who took him to the police station, where he gave a court-reported statement. Ibid. Sims was eventually charged (along with Henyard and Dixon) with the robbery and Martini's murder, but he was acquitted in August 1994. Ibid. At his own trial, Sims unsuccessfully moved to suppress his statements, claiming that the officers had coerced the statements by handcuffing him to a wall and beating him. Id. at 4-5. At Henyard's first trial, in 1995, Sims similarly testified that his statements were coerced and that he did not know who committed the crimes. Id. at 5. At Henyard's third and final trial, however, Sims testified that his coercion claims-both at his own 1994 trial and at Henyard's 1995 trial-were false, and that he had made those claims because he was afraid of being convicted and imprisoned. Ibid. At the 2008 trial, Sims further testified that his current testimony was truthful because an innocent man (Martini) had been killed and because Sims since the 1995 trial had successfully completed a rehabilitation program and was now working steadily. Ibid.

         Defense counsel extensively cross-examined Sims about his testimony that his previous testimony was perjured. Id. at 7. Sims admitted that he had lied under oath both at his own trial and at Henyard's first trial; that when Blue Ribbon was robbed, Sims was on probation and faced a risk of imprisonment; and that in 1995, he had received another sentence of probation after pleading guilty to violating his earlier probation. Ibid. Although Sims denied that he expected Henyard and Dixon to pay him for the information that he provided about Blue Ribbon before the robbery, defense counsel impeached him with his testimony from Henyard's second trial, in 2000, where he testified that he had expected to be paid. Ibid. Similarly, although at the 2008 trial Sims testified that he was not handcuffed when he met with the officers at the police station two days after the robbery and murder, defense counsel impeached him with his 2000 testimony that the police brought him to the station in handcuffs. Ibid.

         On redirect examination, and over a defense objection, the trial judge permitted the prosecution to ask Sims about his prior consistent statements, including his court-reported statement two days after the robbery. Id. at 8. In that statement, Sims described his first meeting with Dixon, his meeting with Dixon and Henyard where they discussed store security, and his recognition of Henyard during the robbery. Id. at 8. The prosecutor read portions of the statement back to Sims, elicited his agreement that he had made those statements, and introduced the entire statement through the testimony of an assistant state's attorney who obtained the statement. Ibid. On re-cross-examination, Sims admitted that at Henyard's 1995 trial he testified that: (1) he could not recognize either assailant at Blue Ribbon; (2) the detectives asked him to state falsely that he could recognize Henyard's facial features through the robber's ski mask; (3) the officers questioning him at the station pushed him against a wall, kneed him in the groin, and told him that they knew who had committed the crimes but needed him to provide details; and (4) the August 1992 meeting with Dixon did not occur. Id. at 8-9.

         In addition to Sims's testimony, the prosecutor introduced evidence that at about 6:00 a.m. on the day of the robbery, Herschel Brown, the manager of a car wash a block from Blue Ribbon, saw a car resembling Dixon's pull into the car wash and then drive in the direction of Blue Ribbon. Id. at 5. Brown testified that he then saw Henyard and Dixon on the sidewalk about 100 feet from Blue Ribbon. Ibid. Brown identified Henyard and Dixon in lineups and in court, and he identified Dixon's car. Ibid. Martini's nephew, who also witnessed the crime, id. at 3, identified a striped ski mask found in Dixon's car as having been worn by one of the assailants at Blue Ribbon. Id. at 6.

         The prosecutor also presented Devada Burns, a self-admitted alcoholic and drug user who at the time of his testimony was serving a sentence for forgery, which was to be followed by a federal prison term for a drug conviction. Ibid. Burns testified that in early October 1992, before the robbery, Henyard approached him in an alley in the same area and asked if he had a pistol. Ibid. Henyard told Burns that he had robbed Anna's Food and Liquors, a different store in the neighborhood, and that Blue Ribbon would be next. Ibid.

         On cross-examination, Burns admitted that during the time period when Henyard spoke to him about the robberies, Burns would frequently drink alcohol “all day long, ” but he denied that he was drunk when Henyard spoke to him. Id. at 9. Defense counsel asked Burns if in 1999 the State had helped him resolve a criminal case in which he ultimately received probation; after a sidebar, the court instructed the jury that Burns had been represented by counsel in 1999, had entered into a negotiated guilty plea, and that nothing in the record suggested that the State had improperly disposed of that case. Ibid. Burns also testified that in 2000, but not in 1995, he had remembered the date on which he spoke to Henyard in October 1992; and that he thought, but was not sure, that he had told someone in 1992 that an individual named Andrew Young had also been in the alley when Henyard spoke to him about the robbery. Id. at 9-10.

         On redirect examination, the prosecutor, over a defense objection, questioned Burns about prior consistent statements that he made at Henyard's 2000 trial, including that Henyard told him that he had “got” Anna's Food and Liquors and that he planned to rob Blue Ribbon next. Id. at 10. The prosecutor also elicited Burns's testimony that he related largely the same facts to the grand jury on October 19, 1992, and in a handwritten statement to an assistant state's attorney on October 16, 1992. Ibid. In addition, Muhammad Akrabawi, a former cashier at Anna's, testified that he was working at Anna's when Henyard robbed it on August 20, 1992, that he saw Henyard in the store on previous occasions, and that he identified Henyard during the Anna's robbery because of large eye holes in the ski mask. Id. at 6-7. Akrabawi had identified Henyard in a photograph and in a lineup, and also did so through an in-court identification at the trial. Id. at 7.

         The trial judge told Henyard that the decision to testify was his alone, that his counsel could advise him on the issue but not decide it for him, and that if he chose not to testify, the jury would be instructed that his lack of testimony could not be used against him. Doc. 20-12 at 118. Henyard indicated that he understood and chose not to testify. Ibid.

         The jury convicted Henyard of armed robbery and first degree murder, and the trial court sentenced him to thirty years imprisonment and ...

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