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Mitchell v. Lashbrook

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

March 31, 2018

Jacqueline Lashbrook[1], Respondent.



         Petitioner Edward Mitchell, a Menard Correctional Center inmate, brings a pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. He was convicted of first degree murder on retrial in the Circuit Court of Cook County. Illinois v. Mitchell, No. 1-08-3143, 2011 IL App (1st) 083143 (Ill.App.Ct. Aug. 5, 2011) (direct appeal ruling). (Dkt. 54-1 at ¶1). He is serving a one-hundred year prison sentence. (Id.). For the reasons set forth below, the petition is denied.

         I. Background

         The following facts are drawn from the state appellate court opinion on direct review following Mitchell's second trial. “The state court's factual determinations are entitled to a presumption of correctness, and Petitioner has the burden of overcoming this presumption by clear and convincing evidence.” Thompkins v. Pfister, 698 F.3d 976, 983 (7th Cir. 2012) (citing 28 U.S.C. § 2254(e)(1); McCarthy v. Pollard, 656 F.3d 478, 483 (7th Cir. 2011)).

         On August 21, 1999, Mitchell and his codefendant Kevin Johnson were charged by indictment with first degree murder of Paulette Peake, age eight. Based on Paulette's age, the State filed notice of intent to seek an extended sentence upon conviction. Paulette was shot shortly before 9:30 p.m. on July 31, 1999, while she stood in the checkout line of Pat's Food Store, a neighborhood grocery store located at the corner of 79th Street and Sangamon Avenue in Chicago. Codefendant Johnson pled guilty to conspiracy to commit murder, attempted aggravated battery, and armed violence. In exchange for his testimony at Mitchell's trial, Johnson received a sentence of 20 years, with day-for-day credit.

         Mitchell was originally convicted by a jury in 2002. The Illinois Appellate Court ruled that Mitchell's videotaped confession was involuntary and remanded for a new trial. People v. Mitchell, 354 Ill.App.3d 396, 405, 289 Ill.Dec. 977, 820 N.E.2d 1052 (2004). The Illinois Supreme Court denied the State's petition for leave to appeal, but directed the appellate court vacate its decision and reconsider in light of People v. Willis, 215 Ill.2d 517, 294 Ill.Dec. 581, 831 N.E.2d 531 (2005). People v. Mitchell, 216 Ill.2d 717, 296 Ill.Dec. 102, 834 N.E.2d 907 (2005). Upon reconsideration, the Illinois Appellate Court again remanded for a new trial based on the same ground. People v. Mitchell, 366 Ill.App.3d 1044, 304 Ill.Dec. 823, 853 N.E.2d 900 (2006).

         Evidence at Second Trial

         As the State's first witness, codefendant Kevin Johnson claimed he was at home all evening until immediately prior to the shooting on July 31, 1999. Johnson testified the day before he and Mitchell were shot at near the grocery store, which Mitchell denied in his testimony. The store surveillance video showed a rival gang member by the nickname of “Toppy” near the store at the time of the shooting. Johnson considered Toppy to be an “enemy” even though Toppy, Mitchell and Johnson were members of the same gang. Johnson testified he saw Mitchell shoot the rifle in the direction of the store and Toppy.

         Three neighborhood residents also testified for the State. Mary Lewis testified she saw Toppy walking toward the store just before she heard gunfire. Mary Lewis testified she saw Mitchell, the codefendant, and a third man walking back and forth near the store. According to her testimony, Mary Lewis did not see the actual shooting, though a defense investigator testified that Mary Lewis told him she saw shots being fired at Toppy. Marie Coffee testified she saw codefendant Johnson running in the alley shortly after the gunfire. Demetrius Jones, a witness from the first trial, could not be located at the time of Mitchell's second trial. On the State's motion, the trial court ruled that Jones an unavailable material witness and permitted a law clerk to read Jones' testimony from the first trial to the jury.

         At Mitchell's first trial in 2002, Jones testified he was 29 years old and attending Knoxville College in Knoxville, Tennessee. When not attending college, he lived with his mother and sister in Chicago on Sangamon Avenue, near the grocery store. Jones testified he was not a member of a gang, but he knew Mitchell was a member of the Vice Lords gang. Jones testified that in July 1999, he was “in the Naval Academy at Great Lakes, [Wisconsin].” In a follow-up question, he clarified he was at the naval boot camp at Great Lakes. He stated he received a pass to visit his mother and sister. At approximately 9 p.m., he went with his mother to meet a family friend at a lounge at 79th Street and Morgan Avenue, one block west of Sangamon. After leaving the lounge, he and his mother walked east toward the grocery store. As they were walking, Jones looked in the direction of the school that was diagonally across 79th Street from the grocery store, where he saw Mitchell with a younger man. He described the clothing Mitchell was wearing. Jones and his mother stepped into the grocery store to briefly greet the owner. Upon leaving the store, Jones saw Mitchell still near the school.

         As Jones and his mother walked south to her house on Sangamon, Jones greeted Toppy and stopped to talk with a friend named Linda. While Jones was talking with Linda, he heard 6 to 10 gunshots coming from near the school. Jones ducked between a parked vehicle and a tree until the shooting stopped. During the shooting, he saw his mother jogging toward her house. He then looked in the direction of the school and saw Mitchell with a rifle. Jones testified he was familiar from his military training with the type of rifle he observed. At the time Jones saw Mitchell with the rifle, Mitchell was wearing a black or dark blue jacket, different clothing than when he first saw him. Jones observed Mitchell placed the rifle in his jacket with the barrel pointing down, but the barrel was still visible. He next observed Mitchell run east, down an alley immediately to the south of the school. Jones then ran into the grocery store, where he saw a little girl had been injured. When he exited the store, the police were on the scene and Jones observed an officer recover a bullet casing. Jones also saw Mary Lewis in the crowd that had gathered. Jones attempted to talk to an officer about what he had seen, but the officer was too absorbed in crowd control so he went home. The following day, the police were in the area. Jones told a police investigator what he saw the previous day and provided his telephone number. He testified that on August 4, 1999, he was transported by Chicago police officers from the Great Lakes naval base to the police station at Area 2. At Area 2, Jones identified Mitchell in a lineup. During his testimony, Jones identified a rifle and jacket as similar to those in possession of Mitchell after the shooting. Jones testified he viewed the store's surveillance tape that showed him and his mother entering and exiting the store. The tape also depicted Toppy entering and exiting the store. The tape showed Jones entering the store once again after the shooting when he saw the injured girl. On cross-examination, Jones denied telling Area 2 detectives that when the gunfire started, he pushed his mother into an alley.

         Illinois State Police DNA analyst Harold Johnson was qualified as an expert. Mitchell unsuccessfully sought to exclude the expert's testimony because “it was too inconclusive.” Analyst Johnson testified he extracted DNA from swabs taken of a pair of gloves recovered from the same garage where the rifle was recovered. The swabs contained a mixture of human DNA profiles from at least three individuals. He testified that to positively identify the contributor of DNA, he would need to locate “13 specific segments of the DNA” or loci. He testified he was able to obtain a profile of only four loci of three different individuals from the swabs. DNA analyst Johnson opined that “1 in 71 black, 1 in 71 white and 1 in 82 Hispanic unrelated individuals cannot be excluded from having contributed to this mixture of DNA profiles.” Johnson concluded Mitchell “could not be excluded as a donor to that mixture.” He testified his conclusion was based solely on his comparison of the 4-loci profile. On cross-examination, analyst Johnson testified a 13-loci profile is necessary to make a positive identification because “13 markers… were chosen by the FBI.” He clarified that while the mixture was from at least three individuals, the mixture could have come from more than three individuals. He admitted that it was “entirely possible that twenty people wore those gloves and didn't leave DNA behind.”

         Chicago police detective Arteaga testified he determined that the bullet that struck Paulette was fired from 7915 S. Sangamon based on where Paulette was standing when she was hit by the bullet. The address is the first house that abuts the alley that runs east and west and separates the school from the residences. The house at 7915 had bushes in front. In the bushes, Arteaga recovered five 9-millimeter Luger cartridge cases and three 40-caliber Smith and Wesson cartridge cases. Arteaga testified he was “certain” the bullet that killed Paulette was the 9-millimeter bullet found inside the store and not the 40-caliber bullet found outside the store. Arteaga admitted, however, it was possible that the bullets could have been kicked around in the chaos following the shooting. A “Diagram of the Area of 79th & Sangamon Av., ” depicting the grocery store, the school, the streets just east and west, and the addresses of houses on the block south of 79th Street, was admitted as State's exhibit 43.

         On August 1, 1999, Arteaga went to a garage located at the rear of 7927 S. Sangamon. According to codefendant Johnson, the garage was where the Vice Lord street gang, the gang he and Mitchell belonged to, stored weapons and ammunition. A black HIPoint, 9-millimeter semiautomatic rifle with a metal barrel was recovered from the rear seat of a stripped-down car in the garage. The parties stipulated that the 9-millimeter bullet recovered at the grocery store and the five cartridge cases found in the bushes near the school were fired from the recovered rifle. Arteaga also found a blue windbreaker, black leather gloves, and a hat in the garage, along with numerous boxes of ammunition and a pane of glass.

         Michael Kopina, an expert in gunshot residue analysis, testified he tested the leather gloves and windbreaker recovered from the garage. To a reasonable degree of scientific certainty, Kopina found gunshot residue on both the gloves and left and right cuffs of the jacket.

         The circuit court accepted Heather Adams Siemer as an expert in fingerprint examination, over Mitchell's objection. Siemer testified to her analysis of latent prints from two items recovered from the garage where the rifle and clothing were discovered. A latent print was “developed” from an ammunition box, displayed as State's exhibit 67. The latent print on the box was photographed, which the State displayed as exhibit 85. Siemer also testified regarding two “lifts” of latent prints from the pane of glass, displayed in State's exhibit 74. The photograph of the lift was displayed in State's exhibit 87. As lifts, the latent prints were capable of immediate comparison to Mitchell's known prints, displayed as State's exhibit 79. As to each latent print, Siemer examined the latent impression or lift “for certain things like pattern type, ridge flow, and things such as this… [Like] ridges that end, ridges that split into two, and short ridges or dots. I took that information from the latent [and] went along to each of the inked prints to see if I had a match.” The two latent prints matched Mitchell's prints from his number three finger and number eight finger. Siemer explained to the jury her comparison process with the aid of State's exhibit 86, “a court chart of the latent print from the lift.” Five comparison points were marked on the chart. Siemer testified she quickly found “13 points of comparison, ” but did not mark all 13 points on the chart because it would “be kind messy with all the lines and stuff like that.” On cross-examination, Siemer admitted she was unfamiliar with “ACE-V, ” which defense counsel characterized as “the standard method of doing fingerprint comparison now that's used by the FBI.” Siemer admitted she made no notes of her comparison of the latent and known fingerprints. Siemer made no examination of the ammunition box for fingerprints belonging to anyone else. “Once I identified Mr. Mitchell I deferred processing.” She never examined the glass pane directly.

         The medical examiner testified Paulette was killed by a single gunshot that struck her chest and exited her back.

         After Mitchell's motion for a directed verdict was denied, three witnesses testified in Mitchell's case-in-chief, including Mitchell. Mitchell admitted he was arrested, on the day of the shooting, around 9:30 p.m. near 80th Street and Peoria, one block east of Sangamon. Mitchell denied firing a gun near the school. He admitted he was a member of the Vice Lord street gang and hung out with other gang members on the 7900 block of South Sangamon. During cross-examination, Mitchell admitted hanging out in the “barn” more than 10 times. He recalled touching things in the barn when items were relocated there. The items in the barn might “possibly” have included ammunition boxes.

         Following the State's rebuttal, the defense made an offer of proof to impeach Demetrius Jones' testimony beyond the transcript read to the jury. The defense also moved to strike the testimony of Harold Johnson, contending he was not qualified to give testimony on statistical analysis. The circuit court rejected the proposed impeachment of Jones and denied the motion to strike. The jury found Mitchell guilty of first degree murder after about 1 hour and 15 minutes of deliberation.

         On direct appeal to the Illinois Appellate Court following his conviction after the second trial, Mitchell raised three main issues: (1) Mitchell challenged the fingerprint evidence introduced at trial, arguing that expert's opinion lacked foundation and that he was entitled to a Frye hearing to challenge examiner Siemer's methodology for comparing latent and known fingerprints, see Frye v. United States, 293 F. 1013 (D.C. Cir. 1923); (2) Mitchell also challenged the admission of testimony from DNA Analyst Harold Johnson over his objection; (3) Mitchell asserted that he should have been allowed to impeach the testimony of Demetrius Jones, who testified at the first trial but could not be located for the second trial, during which his testimony was read into the record. People v. Mitchell, 2011 IL App (1st) 083143, at ¶¶21-44 (2011). Mitchell further argued that the cumulative effect of these errors deprived him of a fair trial. Id. at ¶46. The appellate court affirmed the conviction and sentence.[2] The court also corrected the mittimus to reflect an additional 12 days of credit. Justice Robert E. Gordon wrote a lengthy dissent. The Illinois Supreme Court denied Mitchell's petition for leave to appeal (“PLA”).

         On November 27, 2012, Mitchell filed a pro se petition for postconviction relief pursuant to 725 ILCS 5/122-1, et seq., in the Circuit Court of Cook County. He raised the following claims: (1) that he was arrested without probable cause and did not receive a probable cause hearing within 48 hours of his arrest; (2) codefendant Johnson's testimony should have been suppressed because of the delayed probable cause hearing; and; (3) trial counsel was ineffective for not arguing to suppress Jones' testimony based on the delayed probable cause ...

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