United States District Court, N.D. Illinois, Eastern Division
MEMORANDUM OPINION AND ORDER
M. Durkin, Judge
Mercado was convicted after a jury trial of aggravated
discharge of a firearm and unlawful use of a weapon by a
felon. See R. 6 at 2. He is serving concurrent
prison terms of 20 and 12 years at the Danville Correctional
Center in Danville, Illinois, where he is in the custody of
Warden Christine Brannon. See Id. Mercado seeks a writ
of habeas corpus pursuant to 28 U.S.C. § 2254.
See R. 1; R. 6. The Warden has answered the petition
by seeking its dismissal. R. 21. For the following reasons,
Mercado's petition is dismissed and the Court declines to
issue a certificate of appealability.
was tried before a jury along with his codefendant Robert
Cantoral-who was Mercado's girlfriend's brother-for
firing a gun from a moving car at another moving car. Mercado
was in the front passenger seat of a car driven and owned by
Cantoral, when they pulled up at a stop light next to a car
containing four other men. The four men testified that
Cantoral flashed a gang sign at them, to which one of the
four men responded with a middle finger. Two of the four men
admitted to being former gang members. The four men testified
that when the light turned green Cantoral sped ahead of them,
and that Mercado leaned out the front passenger window and
fired two gunshots at their car. Mercado himself admitted
that he shot at the car containing the four men. Shortly
thereafter, the four men found a police officer and reported
the incident. The police located Cantoral and Mercado in
their car, and recovered a gun in a hidden compartment within
the car. All of these facts were in evidence before the jury.
to trial, Mercado's attorney notified the trial court
that Mercado intended to argue self-defense because he
thought he saw the four men searching through their car as if
they were looking for a gun. Mercado's attorney also
informed the court that Mercado intended to testify that he
believed Cantoral had the same fear. Mercado's attorney
further told the court that he surmised, based on
Cantoral's intent to raise a sufficiency of the evidence
defense, that Cantoral intended to testify that he did not
share Mercado's fear of the four men, thus contradicting
Mercado's anticipated testimony. For this reason,
Mercado's attorney argued that Cantoral's defense was
antagonistic to Mercado's self-defense theory.
therefore sought a severance of Mercado's trial from
Cantoral's. The trial court denied the motion to sever,
reasoning (1) that is was sheer speculation what Cantoral
would testify to, and (2) even if Cantoral did testify that
he did not share Mercado's fear, his testimony would
simply be that of an eyewitness and would not raise an
antagonistic defense that would warrant a separate trial.
See R. 22-6 at 16 (K-7:14-23).
during trial, it was Cantoral's attorney who brought a
motion before the trial court touching on the same issue.
Cantoral's attorney told the trial court that he
believed, based on statements by Mercado's attorney, that
Mercado was going to testify not only that Cantoral was
afraid of the four men in the other car, but that the gun
Mercado used belonged to Cantoral, and that Cantoral directed
Mercado to get the gun and shoot at the four men. R. 22-6 at
6 (A-4:6-12). Cantoral's attorney argued that this was a
change in Mercado's defense strategy that should not be
permitted at that late stage of the trial. In response to
Cantoral's attorney's argument, Mercado's
attorney clarified how he expected Mercado to testify:
not going to say that Mr. Cantoral was angry at the other
car. . . . The situation we are going to describe is one
where the occupants of Mr. Cantoral's vehicle are in fear
for their lives and that there was an interaction between
Mercado and Cantoral in response to that and Mr. Mercado did
what Mr. Mercado did in fear of his life and the other
occupant of the vehicle, which is Mr. Cantoral. R. 22-6 at
8-9 (A-6:22-A-7:10). The trial court's response to the
motion by Cantoral's attorney was to tell Mercado's
attorney that he should have described Mercado's
potential testimony in greater detail prior to trial when he
moved for a severance, because
that's at the very heart of the antagonism now, isn't
it? Here we are in the middle of a jury trial and all of a
sudden for the first time in the middle of a jury trial the
antagonism has become apparent.
R. 22-6 at 10 (A-8:19-24). At this point, the Assistant
State's Attorney interjected, pointing out that the
“real issue” was not about “any words
exchanged between [Mercado and Cantoral] but that there has
been a representation that [Mercado] is going to get up and
[testify that] he got the gun from [Cantoral].” R. 22-6
at 11 (A-9:5-10). The Assistant State's Attorney argued
that Mercado had the opportunity to raise this particular
alleged fact when he moved for severance before the trial,
and because he failed to do so, he should “be estopped
from making any representations as to where he received that
particular firearm.” R. 22-6 at 12 (A-10:15-17).
Cantoral's attorney agreed that a restriction on
Mercado's testimony was an appropriate sanction for the
late notice, and that a mistrial would be necessary if such a
restriction on Mercado's testimony was impermissible. In
support of this motion for sanctions or, in the alternative,
a mistrial, Cantoral's attorney argued that
the antagonism comes from [Mercado] indicating that
[Cantoral] had the gun in the car and was responsible for
getting the gun into [Mercado's] hands, and that is an
antagonism that is in fact enormously prejudicial and I think
will eventually not allow this case to be tried fairly . . .
R. 22-6 at 12-13 (A-10:22-A-11:4). The trial court declined
to issue a preemptory ruling on Cantoral's motion,
stating that he would decide the issue when “Mercado
actually testifies.” R. 22-6 at 13-14 (A-11:24-A-12:1).
issue of Mercado's testimony was presented to the trial
court again after the close of the state's case and
immediately before Mercado took the witness stand.
Assistant State's Attorney again sought to exclude
Mercado's anticipated testimony concerning the source of
[T]he origin of the gun [has] no impact or is not relevant to
the charges at issue. The self-defense . . . is only
applicable to [the] charge [of aggravated discharge of a
firearm]. Makes no difference where he got the gun in his
self-defense claim. Whether or not he says it appeared in his
hand, the fact that he used it to shoot [at] someone makes no
difference whatsoever as to that particular charge. . . . We
would ask that [Mercado] be limited to simply stating that he
grabbed the gun and not stating from where he grabbed [it].
R. 22-6 at 44-45 (A-42:16-A-43:2, A-43:14-17). In response,
Mercado's attorney argued that Mercado should be
permitted to testify
that . . . something happens between Mr. Cantoral and the
vehicle [with the four men]. There is this discussion between
Mr. Cantoral and Mr. Mercado. . . . The car [with the four
men] follows them. There is continued discussion between Mr.
Cantoral and Mr. Mercado. Mr. Mercado is told that there is a
gun in the car, [and] where it is. He gets it. Then he is
told that the vehicle [with the four men] is now coming up on
Mr. Mercado's side [of the car]. He displays the gun. He
fires it in the direction of the pavement. Then he puts the
gun back where it was recovered by the police, a sealed
compartment located in Mr. Cantoral's vehicle.
R. 22-6 at 47-48 (A-45:7-A-46:2). The trial court then
reconfirmed with Mercado's attorney what Mercado's
testimony would be, and in the course of that discussion
eventually had the following exchange with the attorneys for
Mercado and Cantoral:
The Court: And then there is another conversation, of course,
Mercado's Attorney: I will say it is a continuing
The Court: The contents of which is not coming into evidence,
but then after that conversation [Mercado] goes and retrieves
a gun from the car?
Mercado's Attorney: Yes.
Cantoral's Attorney: He says [Mercado] is going to say
told him there was a gun in the car, where to get it from and
that's where he got it from.
The Court: That's hearsay. How is that coming in?
Cantoral's Attorney: He was going to say he was directed
to get the gun.
The Court: How could he say that? How can he put that
conversation into evidence?
Cantoral's Attorney: You are right. The point I obviously
am making is that when [Cantoral] is driving away, he
certainly couldn't have put that gun in that right hand
wherever the hell that gun was put back there. He can't
be driving the car and go to the back of an SUV. It is
impossible. So I am just saying- Mercado's Attorney: We
are saying we put it back.
Cantoral's Attorney: Okay. Fine. I still renew my motion
for a mistrial. It is surprise testimony.
The Court: Make the motion at the appropriate time.
R. 22-6 at 48-50 (A-46:21-A-48:7). As indicated in the above
excerpt, the trial court believed that Mercado's proposed
testimony about his conversation with Cantoral was
inadmissible hearsay. Nevertheless, the trial court denied
the Assistant State's Attorney's motion insofar as it
sought to bar Mercado from testifying about where he got the
gun (as opposed to conversations he had with Cantoral about
the gun). Id. Mercado took the stand immediately
after this exchange.
through Mercado's testimony the following exchange
Mercado: I noticed [Cantoral] and the other car [with the
four men] exchanging words. Not necessarily gangbanging