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Dixon v. Pfister

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

October 25, 2019

Arnold DIXON, Petitioner,
v.
Randy PFISTER, [1] Respondent.

          MEMORANDUM OPINION AND ORDER

          REBECCA R. PALLIMEYER, United States District Judge

         On February 25, 2005, a Cook County jury convicted Petitioner Arnold Dixon (AKA “James Fletcher”) of the first-degree murder of Willie Sorrell. Dixon has exhausted his state appeals and now seeks a writ of habeas corpus from this court pursuant to 28 U.S.C. § 2254. Dixon seeks relief on the grounds that (1) the introduction of testimonial hearsay at his trial violated the Sixth Amendment's Confrontation Clause; (2) unreliable inculpatory eyewitness identifications were admitted at trial in violation of his due process rights; (3) he was deprived of his right to counsel at a police line-up in violation of the Sixth and Fourteenth Amendments; (4) his trial counsel was constitutionally ineffective for failing to litigate a motion to suppress the eyewitness identifications; and (5) his appellate counsel was constitutionally ineffective for failing to raise issues (3) and (4) on direct appeal. For the following reasons, Dixon's petition is granted.

         FACTUAL BACKGROUND[2]

         The case against Petitioner emerged from an incident that took place on December 21, 1990 in Chicago. On that afternoon, multiple armed men stole money from a delivery-truck driver who, in turn, retrieved his own gun and chased the robbers down the street. The robbers and the driver all exchanged gunfire, and a stray bullet struck and killed a bystander named Willie Sorrell. None of the robbers was apprehended at the scene, but police officers spoke to four eyewitnesses: (1) Edward Cooper, the driver; (2) Sheenee Friend, an eyewitness to the robbery; (3) Emmett Wade, an eyewitness to the chase; and (4) Terry Rogers, who had joined Cooper in chasing the robbers. Although none of the witnesses identified the robbers at the scene, Terry Rogers told a police officer that he heard one robber call the other “Fletcher.” Five years later, in 1995, Detectives Jerome Bogucki and Raymond Schalk began investigating the incident. The detectives did not speak to Rogers until 2002. In a 2002 interview, Rogers told Detectives Bogucki and Schalk that one of the robbers was named “Jimmie Fletcher.” Petitioner's name is “James Fletcher.”[3] The detectives then, by their own account, showed Rogers a photo array from which Rogers identified a photo of Petitioner. The detectives showed this photo array to the three other eyewitnesses: Cooper, Friend, and Wade. Cooper and Friend identified Petitioner, but Wade did not. The detectives arrested Petitioner, assembled a police line-up, and presented it to Cooper and Friend, both of whom again identified Petitioner.

         Petitioner was tried for first-degree murder in the Circuit Court of Cook County on February 22-25, 2005. The state called Cooper, Friend, Wade, and Detective Bogucki to testify. Although the accounts of Cooper and Friend conflicted in myriad ways, both witnesses affirmed that they recognized Petitioner to be one of the robbers. Rogers-the detectives' original lead to Petitioner based on Rogers' statement to police officers at the scene of the robbery-did not testify. Detective Bogucki, however, testified that a 1990 police report stated that an unspecified witness had “provided the name of Fletcher, ” and that only after speaking to Rogers in 2002 did the detectives “attempt[ ] to locate James Fletcher.” Petitioner then called several witnesses who testified that his appearance in December 1990 did not match the testifying witnesses' descriptions of any of the robbers, and one witness who placed Petitioner outside Illinois in late December 1990. The jury found Petitioner guilty, and the court sentenced him to natural life in prison.

         Two significant developments have occurred since Petitioner's conviction. First, Detective Bogucki was accused of using “coercive tactics” to procure false identifications in a murder investigation. In 2012, a federal jury found Detective Bogucki liable for that conduct and awarded damages in the amount of $25 million. See Jimenez v. City of Chicago (Jimenez III), 732 F.3d 710, 712 (7th Cir. 2013). Additionally, Cooper, Friend, and Wade have prepared affidavits supplementing their testimony at trial. Cooper now avers that he told detectives that he “did not exactly recognize anyone in the [photo array], ” and both Friend and Cooper recall Detectives Bogucki and Schalk guiding them to identify Petitioner's photo from the array.

         The court attempts to incorporate all relevant facts and allegations here, giving appropriate deference to the state court's findings as mandated by 28 U.S.C. § 2254(e)(1).

         I. The Robbery

         On December 21, 1990, between 1:00 and 1:30 P.M., Edward Cooper drove a Holsum Bread truck to an Uncle Remus Restaurant located at 5615 West Madison Street in Chicago to make a delivery. (Trial Tr. Vol. III at 55-56, Ex. S to State Ct. R. [28].) Once parked, Cooper took loaves of bread into the restaurant and then returned to his truck with empty bread trays in hand. (Id. at 56.) Outside of the restaurant, Cooper encountered a woman named Sheenee Friend. (Id.) Cooper testified that he was acquainted with Friend because he knew her parents. (Id. at 57.) Friend, similarly, testified at trial that she knew Cooper as a friend of her father. (Id. at 133.) In earlier testimony before a grand jury, however, Friend stated that she met Cooper in approximately 1989, when he made bread deliveries to a grocery store at which she was employed. (Common L. Suppl. R. at PageID #:1643, Ex. Y to State Ct. R.) And a police report prepared by Detective Raymond Schalk on March 8, 2002, which was not introduced at trial, reflects that Friend stated she had dated Cooper. (Id. at PageID #:1657.)

         At trial, Friend and Cooper both described their December 21, 1990 encounter; their accounts differed on several details.[4] Cooper recalled that as he was leaving the restaurant, Friend approached and asked him for change to use at a nearby laundromat and that, although Cooper had change in his pocket, but he asked Friend to wait while he put his bread trays away in his truck. (Trial Tr. Vol. III at 57.) Cooper then, according to his testimony, walked toward his truck and opened its side door, but was stopped by the robbers before he could enter or give Friend any money. (Id.) Friend, in contrast, recalled that although she was coming from a laundromat, she asked Cooper for money to give to her daughter. (Id. at 134.) Friend did not specify where her daughter was, or why she needed money. (Id.) According to Friend's testimony at trial, she then entered Cooper's truck with Cooper and, while the two were inside, received the money she had requested from Cooper. (Id. at 134-35.) In a signed statement prepared prior to trial (but not mentioned at trial), Friend averred that she actually encountered Cooper already in his truck, entered through its side door, and spoke with him for “about 20 minutes.” (Common L. Suppl. R. at PageID #:1635-36.) And before a grand jury, Friend testified that she asked Cooper for money in order to buy shoes for her daughter. (Id. at PageID #:1646.)

         Cooper and Friend both testified at trial that they were accosted by two men. Again, however, their accounts of the events differed. Cooper testified that just after he opened the side door of his truck, before he could enter, a man stuck an object into Cooper's back and asked, “You know what this is?” to which Cooper responded, “Yeah.” (Trial Tr. Vol. III at 57-58.) According to Cooper, this man ordered Cooper to step into the truck, and Cooper complied, followed by that man and another one, both of whom were carrying revolvers. (Id. at 58-59.) Friend testified, in contrast, that when the two men approached, she and Cooper were already in the truck. (Id. at 135.) According to Friend, she was about to leave the truck when one of the men grabbed her arm and said, “What the fuck you think you're doing?” (Id.) Friend said, “Let me go” and pulled her arm away, then exited the truck. (Id. at 135.) The two men then entered the truck and closed the door. (Id. at 138.) Friend said she did not see whether the men were armed when they entered the truck. (Id. at 136.)

         Cooper testified that once inside the truck, one of the gunmen leaned on the dashboard while the other pointed a gun at Cooper's side. (Trial Tr. Vol. III at 59-60.) The first man then pointed his own gun at Cooper and demanded money. (Id. at 58.) Cooper removed cash from his left pocket and handed it over, while the other gunman reached into Cooper's right pocket and pulled out additional money. (Id.) According to a private investigator who spoke to Cooper in 2004, however, [5] Cooper recalled only one of the robbers carrying a gun. (Postconviction Suppl. Common L.R. at PageID #:1919.)

         In total, Cooper testified that about $334 was taken from him. (Trial Tr. Vol. III at 61.) Cooper told the armed men that the rest of the money was in a safe in the truck. (Id. at 61-62.) They asked Cooper to open it, but he told them that he was not able to do so because he did not have a key, and volunteered that the men could instead take the truck. (Id.) Friend testified that she was able to see part of this interaction through the truck's windows. (Id. at 137.) Specifically, she saw the man who had earlier grabbed her putting his hands in Cooper's pockets while the other man pointed a gun at Cooper. (Id. at 137-38.) Cooper testified that after the gunmen took the money from his pocket, they spoke for “30 more seconds or so before leaving.” (Id. at 62.) Friend testified that the men were in the truck for ten to fifteen minutes in total. (Id. at 138.)

         Cooper testified that, as the two gunmen were leaving the truck, one of them turned around, and as he did so, Cooper pulled out a gun he himself had at his side.[6] (Trial Tr. Vol. III at 63.) Without saying who fired the first shot, Cooper testified that he and the two men shot at each other. (Id.) Friend's order of events was clearer; she testified that she saw the two men jump out of the front side door of the truck, with Cooper following them, and that Cooper then pulled out a gun and fired at the robbers, who both fired back. (Id. at 139, 156.) Both gunmen then ran northwest on Madison Street. (Id. at 63-64.)

         At around 1:20 P.M., Emmett Wade was sitting in a van parked on Madison Street, facing east. (Trial Tr. Vol. III at 109-10.) Wade heard someone scream, looked up, and saw a Holsum Bread truck driver (presumably Cooper) running in Wade's direction with a gun. (Id. at 110.) Wade saw Cooper fire his gun at least once. (Id. at 111.) The bullet hit Wade's windshield and ricocheted upward. (Id.) Wade briefly ducked down in his car, then exited to see multiple people wearing hoodies running westbound. (Id. at 112.) Wade heard gunshots from behind him and then saw a man (presumably, the victim, Willie Sorrell) walk out of a liquor store and fall. (Id.) Friend testified that she saw Sorrell walk out of the liquor store and fall after being hit by a bullet. (Id. at 142.) Friend testified that, at that moment, the robbers were firing in the direction of the liquor store, whereas Cooper was not. (Id.)

         At some point during the chase, Cooper testified, he encountered a man he knew named Terry Rogers. (Trial Tr. Vol. III at 65.) According to Cooper, Rogers proceeded to join Cooper in chasing the gunmen down Madison Street. (Id.) Cooper further testified that the gunmen eventually ran into an abandoned building and Cooper stopped chasing them. (Id. at 65-66.) Cooper then walked to a store on Wallace Avenue and Madison Street and left his gun with a person there, purportedly because his employer did not permit him to carry a weapon. (Id. at 67- 68.) Returning to his truck, Cooper saw the victim lying on the ground. (Id. at 66.) At trial, Cooper testified that he knew he was not the one who shot Sorrell, because Cooper “was facing the opposite way” and was “about 20 feet in front of [Sorrell] and [Sorrell] was behind Cooper.” (Id. at 104.)

         Cooper spoke to police officers at the scene. He initially told the officers that he did not have a gun, but went on to admit that he did, in fact, discharge a firearm approximately five times. (Trial Tr. Vol. III at 99-100.) After revealing he had a gun, the officers placed Cooper under arrest for “having an unregistered weapon and shooting in the city limits.” (Id. at 106.) Cooper did not realize he had been arrested, he testified, until he later received notice of a court date. (Id. at 100, 106.) While speaking to officers at the scene, Cooper could not recall any distinguishing characteristics of either gunman. (Id. at 101.)

         Friend also spoke to at least one police officer at the scene (she did not recall how many) but did not testify to what, if anything, she told the officers. (Trial Tr. Vol. III at 164-65.) Wade went to the police station that evening, as well, but did not recall telling police officers that he might be able to identify the suspects. (Id. at 129.)

         II. The Investigation

         Five years later, in March 1995, Detectives Jerome Bogucki and Raymond Schalk began investigating the murder of Willie Sorrell. (Trial Tr. Vol. III at 177, 181.) Bogucki testified that he and Schalk reviewed a case report prepared by the 15th District Office and a supplementary report prepared by another detective. (Id. at 178-79.) The supplemental report, prepared by detective Michael Fleming on December 21, 1990, states that two perpetrators both had a “[s]lim build, ” dark complexion, and were wearing blue jeans. (Postconviction Suppl. Common L.R. at PageID #:1824, Ex. BB to State Ct. R.) The supplemental report further states that the first individual had “[c]ollar length curls, ” and was wearing a dark “starter coat” and a “[b]lack baseball cap, ” and that the second individual had black hair tied into a ponytail and was wearing a dark “starter jacket” and a “[d]ark cap.” (Id.) The report does not specify how Detective Fleming learned this information, but records statements covering other topics from Cooper, Wade, and Rogers. (Id.) The section summarizing Rogers' statement, pertinently, includes the following passage: “While they were running he heard one of the men call the other to hurry up and he called him by the name FLETCHER.” (Id. at PageID #:1826.) At trial, Bogucki testified that, “[f]rom reading [these] reports, it became obvious to myself and my partner that a subject named Terry Rogers needed to be talked to.” (Trial Tr. Vol. III. at 180.)

         Later in 1995, detectives interviewed Cooper regarding the incident. (Trial Tr. Vol. III at 70-71.) The detectives brought photos and asked Cooper whether he recognized a person who robbed him in any of the photos. (Id. at 92.) At trial, Cooper averred that Petitioner was not in any of these photos, and that during the 1995 interview he “discussed with [the detectives] somebody else.” (Id. at 92, 103.) No. witness at trial identified this other individual, but a police report not entered at trial reflects that the “somebody else” Cooper referred to was named “Fletcher Clinton.” (Postconviction Suppl. Common L.R. at PageID #:1893.) The report further states that Cooper “went on to say that he believed that Terry ROGERS had set him up. He stated that he was friends of ROGERS' family. He had heard that ROGERS had a bad drug habit and would do almost anything for money (he has a 5 page sheet). It should be noted that ROGERS was the one who claimed that one of the offenders called the other ‘Fletcher.'“ (Id.) None of this information about Terry Rogers was presented to the jury at trial, but defense counsel referenced this report in Petitioner's motion for a new trial. (See Trial Common L.R. at 158, Ex. X to State Ct. R.)

         Seven years passed. Then, on February 11, 2002, Terry Rogers was arrested for criminal trespass. (Postconviction Suppl. Common L.R. at PageID #:1840.) Detectives Bogucki and Schalk re-interviewed Rogers in custody the following day and asked him about the 1990 incident. (Trial Tr. Vol. III at 181-82.) During the interview, Terry Rogers told detectives that one of the robbers from the 1990 incident was named “Jimmie Fletcher, ” prompting them to prepare a photo array that included Petitioner's photo.[7] (Postconviction Suppl. Common L.R. at PageID #:1840- 41.) Rogers then identified a photo of Petitioner. (Id.) A police report prepared by Detective Schalk following this interview reflects that the detectives also asked Rogers “about the discrepancies between what [Rogers] was telling [them] and what he had told detectives on the day of the murder.”[8] (Id. at PageID #:1840.) Rogers responded “that he did not remember what he had said in 1990.” (Id.)

         Later that day, on February 12, 2002, Bogucki and Schalk interviewed Cooper in his home. (Trial Tr. Vol. III at 71, 186.) During this interview, Bogucki and Schalk showed Cooper the same photo array they had shown Rogers. (Id. at 186.) Cooper testified that the detectives asked “do [you] see in the photo, do [you] see anybody that robbed [you].” (Id. at 71-72.) Bogucki testified that they simply asked Cooper whether he recognized anyone in the photos, and that Cooper picked out a photo of Petitioner. (Id. at 186.) According to Bogucki, Cooper said “it looks like one of the offenders that shot at him and robbed him, but [Cooper] couldn't be positive.” (Id. at 187.) At trial in 2005, Cooper acknowledged that during the 2002 interview he told detectives he was not sure that Petitioner's photo depicted one of the individuals who had robbed him, but Cooper nevertheless testified at trial that he was “100 percent sure of who the suspect was” from the photo. (Id. at 93.)

         On March 7, 2002, Sheenee Friend was arrested on a parole violation warrant. (Postconviction Suppl. Common L.R. at PageID #:1840-41; Trial Tr. Vol. III at 158.) The next day, Bogucki and Schalk met with Friend and showed her the same photo array they had shown Cooper.[9] (Trial Tr. Vol. III at 156, 158, 187.) According to Friend, the detectives asked her to “identify the guys that killed that old man.” (Id.) According to Bogucki, however, Friend was only asked to “see if she recognized anyone.” (Id. at 188.) Friend testified that the detectives did not tell her that they already had a suspect for the shooting. (Id. at 163.) Friend identified a photo of Petitioner. (Id. at 145, 188.)

         On March 12, 2002, the detectives visited Emmett Wade in his home. (Postconviction Suppl. Common L.R. at PageID #:1840-41; Trial Tr. Vol. III at 124.) They showed Wade a series of photographs and asked if he could identify anyone who was on Madison Street on December 21, 1990. (Trial Tr. Vol. III at 125.) Wade testified that the detectives informed him they already had a suspect. (Id.) Wade told the detectives, however, that he could not identify anyone. (Id.)

         On March 21, 2002, Bogucki obtained an arrest warrant for Petitioner. (Id. at 188.) Approximately one month later, on April 18, 2002, Petitioner was arrested. (Postconviction Suppl. Common L.R. at PageID #:1829.) The next day, Bogucki and Schalk assembled a police line-up that included Petitioner and four other individuals, none of whom had been included in the previously-used photo-array. (Trial Tr. Vol. III at 189, 211.) At the time, Petitioner had braids in his hair that went past the nape of his neck. (Trial Tr. Vol IV at 82.) None of the other participants had braids or hair of a similar length. (Id.)

         Petitioner's father had hired Attorney Jacqueline Gordon to represent Petitioner. On the day of the line-up, Gordon arrived at the police station, but was prevented from seeing Petitioner for approximately thirty minutes. (Trial Tr. Vol. IV at 68, 71.) Gordon was ultimately permitted to stand in the same room as Petitioner during the line-up identification, but not to see or enter the separate “witness room” where Cooper and Friend viewed the line-up. (Id. at 73-74, 189.) Meanwhile, Cooper was asked whether he recognized any of the individuals from the December 21, 1990 shooting, and identified Petitioner. (Trial Tr. Vol. III at 73.) Friend, too, was asked if she recognized “anyone from the shooting on Madison from 1990, ” and identified Petitioner. (Id. at 145.)

         On May 9, 2002, Terry Rogers testified before an Illinois grand jury. (Postconviction Suppl. Common L.R. at PageID #:1885.) Rogers testified that he knew both Petitioner and Cooper. (Id. at PageID #:1888.) He recalled that on December 21, 1990, as Cooper was delivering bread, “Jimmy Fletcher upped the gun from his backside and there was some gunfire exchanged. Edward Cooper ran to his truck and got his gun, ” then chased Petitioner and another man, with whom Rogers was not familiar. (Id.) Rogers stated, however, that he did not immediately realize that someone had been shot. (Id. at PageID #: 1889-90.) In his September 2004 conversation with a detective hired by the defense, Cooper told the detective that he was only “75 percent sure” who the robber was. (Trial Tr. Vol. III at 98, 99.)

         PROCEDURAL HISTORY

         I. Pre-Trial

         On April 18, 2002, Petitioner filed a formal trial demand under the Illinois Speedy Trial statute, 725 ILCS 5/103-5(b). (Postconviction Suppl. Common L.R. at PageID #:1829.) On September 30, 2002, Petitioner moved to dismiss the indictment for failure to commence prosecution within a reasonable time. (Trial Common L.R. at 41.) On January 10, 2003, Petitioner moved to suppress the photograph and line-up identifications, arguing that the detectives' conduct in securing them was “unnecessarily conducive to mistaken identification.” (Id. at 57-58.) The record does not reflect how, if at all, the trial court ruled on these motions.

         On November 10, 2003, Petitioner again moved to suppress all pre-trial identifications, and additionally to bar in-court identification testimony by Cooper and Friend. (Postconviction Suppl. Common L.R. at PageID #:1864.) Petitioner's counsel later withdrew this motion. (See Trial Tr. Vol. VI at 47, 57, Ex. V to State Ct. R.)

         II. Trial

         Petitioner's trial began on February 23, 2005. (See Trial Tr. Vol. III.) He was tried under the name James Fletcher. During the state's opening statement, a prosecutor asserted that sometime after the robbery, detectives “knew from the reports that they were looking for a man named Fletcher.” (Trial Tr. Vol. III at 27.) Defense counsel objected that this statement violated the Sixth Amendment's Confrontation Clause, proffering that the name “Fletcher” was only supplied to law enforcement by Terry Rogers, a non-testifying witness. (Id. at 27-28.) After receiving assurances from the prosecution that they would not go into “anything that Rogers said, ” the trial court overruled defense counsel's objection. (Id.) The prosecution then added to their opening statement that, after performing follow-up interviews of unspecified witnesses in 2002, detectives knew “they were looking for a suspect named James Fletcher.” (Id. at 29.)

         A. Prosecution Case in Chief

         The prosecution first called Edward Cooper. Cooper described the events of December 21, 1990, beginning with his arrival at the restaurant. On direct examination, Cooper identified Petitioner as the gunman who pointed a gun at Cooper's side and reached into Cooper's pocket to remove money. (Trial Tr. Vol. III at 58, 60-61.) Cooper acknowledged that Petitioner, at trial, appeared “stockier” than he had in 1990, and had a different hairstyle. (Id. at 68.) On December 21, 1990, Cooper testified, Petitioner had a collar length “Jheri curl” that Cooper could see coming out of the back of a baseball cap the robber was wearing.[10] (Id. at 69.) According to Cooper, Petitioner was also wearing a starter jacket and dark-colored pants, and appeared to be “like 5 feet 8 to 5 feet 9, about 6 feet” tall and “around 160 to 170 pounds.” (Id.) Cooper testified that the other gunman was “about five-eight to five-ten, ” 150 to 160 pounds, was also wearing a starter jacket and a baseball cap, and had a ponytail. (Id. at 70.) Both gunmen, Cooper testified, appeared to be in their late 20s or early 30s. (Id.) Petitioner was in his late 20s in 1990.

         On cross-examination, Cooper was asked whether it was “possible that someone else did this.” (Trial Tr. Vol. III at 101.) Before Cooper could answer, the state raised an unspecified objection, which the court sustained. After Cooper testified that during the 1995 interview he discussed “somebody else” with detectives, the prosecution raised another unspecified objection, which the court again sustained. (Id. at 93.)

         The prosecution's second witness was Emmett Wade. Wade described what he was able to see of the chase and of Sorrell's fatal injury. He testified that he saw individuals running west on Madison Street, that these individuals were wearing hoodies, that he did not see any of them carrying guns, and that he initially thought there were three of them but could not be sure. (Trial Tr. Vol. III at 113, 119-20, 122.) Wade did not identify Petitioner as any of these individuals, and testified that he could not say whether Petitioner was in the vicinity of the shooting on December 21, 1990. (Id. at 120, 126.) He further testified that, based on the relative positions of Sorrell and Cooper, it was not possible that the bullet that struck Sorrell was fired by Cooper. (Id. at 119.) Regarding the photo array shown to Wade in March 2002, defense counsel asked on cross-examination whether the detectives had told Wade which one of the photographs matched their current suspect, but the court sustained an unspecified objection before Wade could answer. (Id. at 125-26.)

         The third witness was Sheenee Friend. Friend described the events of December 21, 1990 from her perspective, beginning with the moment she ran into Edward Cooper. Friend identified Petitioner as the gunman who grabbed her before entering Cooper's truck, and who searched through Cooper's pockets in his truck. (Trial Tr. Vol. III at 136-38.) She further testified that she had never seen this man prior to December 21, 1990. (Id. at 136.) On December 21, 1990, according to Friend, Petitioner was wearing a black “skullcap” and a black jacket. (Id. at 150.) Friend could not recall what kind of pants Petitioner was wearing, or how old he appeared; she did not see his hair, nor did she recall anything about the other gunman's appearance. (Id. at 150-52.) Friend did say that, as Petitioner appeared at trial, he was older and “much bigger” than he had been in 1990. (Id. at 149-50.)

         On cross-examination, defense counsel sought to ask Friend whether she had initially told a detective, on December 21, 1990, that she did not know whether Cooper had a gun. (Id. at 165.) The prosecution raised an objection, arguing at sidebar that because defense counsel's basis for the question was in a non-testifying detective's police report, defense counsel could not “prove it up.” (Id. at 165-66.) The court did not expressly sustain the objection, instead observing that the witness had not testified that the officer she had spoken to was in fact a detective. (Id. at 168-69.) Friend thereafter testified that she spoke to a detective, but defense counsel never renewed the impeachment effort. Friend further testified that she had “[n]o doubt at all” that her identification was accurate. (Id. at 175.)

         The prosecution's final witness was Detective Jerome Bogucki. During Bogucki's direct examination, defense counsel twice objected on hearsay grounds to testimony that in 1995, Bogucki learned from two 1990 reports prepared by non-testifying officers that “[t]here were two male Black offenders wanted” and “[o]ne of the witnesses had provided a name of Fletcher.” (Trial Tr. Vol. III at 179-80.) The prosecution responded that the statements were only being offered to show “the course of this investigation, ” and the court overruled the objections. (Id.) Bogucki further testified that, in 2002, he showed a photo array to Terry Rogers, and defense counsel raised another objection. (Id. at 182.) In sidebar, defense counsel noted that Rogers was not available to testify and argued that it was “a violation of the Sixth Amendment right to cross-examine for this type of testimony to be elicited.” (Id. at 183.) Defense further proffered that Rogers had made inconsistent statements to police officers, documented in police reports, that the defense would not be able to use for impeachment without Rogers testifying. (Id.) The court sustained the defense's objection and issued a limiting instruction to the jury to disregard Bogucki's testimony that Rogers had examined photos. (Id. at 185.) Bogucki nevertheless was permitted to testify that the next step in his investigation was to “attempt[ ] to locate James Fletcher.” (Id. at 186.)

         On cross-examination, defense counsel asked Bogucki whether the name of the suspect that he learned of in 1995 was a full name, and Bogucki acknowledged that it was only a “first or last name.” (Id. at 198.) Defense counsel also elicited testimony that Friend told Bogucki in 2002 that she had seen Petitioner prior to December 21, 1990 “in the neighborhood, ” contradicting Friend's earlier testimony that she had never seen Petitioner before. (Trial Tr. Vol. III at 136, 204.)

         On re-direct examination, the prosecution asked Bogucki what name he was made “aware of” in 1995 in connection with Willie Sorrell's murder, and defense counsel objected that it was asked and answered. (Id. at 205-06.) The court overruled the objection, and Bogucki answered “Fletcher.” (Id. at 206.) The prosecution then asked “[a]t the time you assembled that photo array, what was the name of that person that you wanted in connection with the murder of Willie Sorrell, ” and Bogucki answered “James Fletcher.” (Id. at 207.) The prosecution then asked why Bogucki used the last name “Dixon” to create the photo array; counsel for the defense objected on hearsay grounds, and the court sustained the objection. (Id. at 207.)

         B. Defense Case in Chief

         Petitioner first called his father, James Fletcher Sr. Fletcher Sr. could not recall whether he saw Petitioner on December 21, 1990, but he testified that he saw Petitioner three times per week in 1990, and that he has never seen his son with collar-length hair or curls of any kind. (Trial Tr. Vol. IV at 10, 20-23, Ex. T to R.) Through Mr. Fletcher, Sr., defense counsel introduced a photo of petitioner taken in October 1990. (Id. at 8.) Fletcher Sr. testified that this photo, in which Petitioner has short hair, accurately reflected Petitioner's appearance in December 1990. (Id. at 11.) On cross-examination, Fletcher Sr. testified that in 1990 Petitioner weighed between 170 and ...


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