No clear error in excluding statements

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“Even if the Illinois Supreme Court’s application of Chambers was not unassailable, as shown by the contrary inferences drawn by the Illinois appellate court using the same law and the same facts, by the same logic it also was not unreasonable.” Hon. Joel M. Flaum 7th Circuit

It was not clearly unreasonable for a state court to hold that a defendant’s right to present a defense was not violated, even though he could not present hearsay statements of a co-defendant that the drugs at issue were solely in his possession, the Seventh Circuit held on Aug. 6.

In 1989, two Chicago police officers, Robert Drozd and Michael Cronin, observed a car with tinted windows drive by their unmarked police car traveling 40 MPH in a 30 MPH zone. The officers pulled the car over, and Drozd approached the vehicle on the driver’s side.

According to Drozd, through the car’s open window, he saw the driver, Kevin Rice, hand a brown paper bag to the passenger, Raymond Pugh, who then stuffed the bag down the front of his pants. Believing the bag to contain a weapon, Drozd ordered Pugh out of the car and conducted a patdown search.

Drozd recovered the bag and found 103 grams of heroin. Rice and Pugh were charged in Illinois state court with possession of heroin with intent to deliver.

Pugh moved to suppress the evidence, and testified at the suppression hearing that he had placed the paper bag containing the heroin down his pants two hours before he and Rice were pulled over. Pugh also stated that he had kept the bag in his pants at all times until Drozd discovered it during the patdown search.

The motion was denied, and at the joint trial, Drozd testified as set forth above. Rice testified, denying handling the heroin, and called Pugh to testify. Pugh asserted his Fifth Amendment privilege, and Rice moved to admit his statements from the suppression hearing.

The trial judge denied the motion, ruling that Pugh’s testimony was inadmissible hearsay because the issues presented at the suppression hearing were not similar enough to the ones at trial to ensure that the State had a meaningful opportunity to cross-examine Pugh.

The jury convicted Rice of possession with intent to deliver heroin, and the court sentenced him to a 20-year prison term. Rice appealed, arguing that the court erred in not admitting the suppression testimony, and won in Illinois’ appellate court, People v. Rice, 617 N.E.2d 360, 36364 (Ill. App. Ct. 1993).

A divided Illinois Supreme Court reinstated his conviction, however, in People v. Rice, 651 N.E.2d 1083, 1088 (Ill. 1995).

Both Illinois courts examined Pugh’s statements for indicia of reliability, using the framework set forth in Chambers v. Mississippi, 410 U.S. 284, 302 (1973). The court of appeals decided that Pugh’s testimony satisfied three of the four requirements for admission, finding that Pugh’s former testimony was (1) corroborated by other evidence, (2) against his penal interests, and (3) subject to cross-examination, but was not (4) made to a close acquaintance shortly after the crime.

The Illinois Supreme Court agreed the statements were against Pugh’s penal interests, but found they were not made spontaneously to an acquaintance, were not corroborated by any other evidence, and were not subject to adequate cross-examination, because the issues at stake in the suppression hearing were limited and the State was not permitted “to fully test the testimony’s reliability.”

Rice sought habeas corpus relief in Illinois federal court, but the district court denied his petition. Rice appealed, but the Seventh Circuit affirmed in a decision written by Judge Joel M. Flaum, and joined by Senior Judge Harlington Wood, Jr. Judge Richard A. Posner dissented.

Penal Interest

“The Illinois Supreme Court’s determination that because the suppression hearing focused on different issues from the trial the state didn’t have the incentive or opportunity to test Pugh’s reliability fully is, with all due respect, nonsense.” Hon. Richard A. Posner in dissent

The majority began by emphasizing the high standard of review in a federal habeas action. Under the AEDPA, a petitioner whose claim was adjudicated on the merits in state court is not entitled to relief unless he can demonstrate that the state court’s decision “was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or … was based on an unreasonable determination of the facts.” 28 U.S.C. 2254(d).

Thus, the court noted it cannot decide whether Pugh’s suppression hearing testimony was reliable enough to be admitted, but that, “we may only consider whether it was unreasonable of the Illinois Supreme Court to hold, in light of Chambers, that the exclusion of Pugh’s suppression hearing testimony did not violate Rice’s due process right to present a defense and receive a fair trial.”

Chambers holds, “where constitutional rights directly affecting the ascertainment of guilt are implicated, the hearsay rule may not be applied mechanistically to defeat the ends of justice,” and sets forth the four factors listed above to consider. Chambers, 410 U.S. at 300-301, 302.

Applying Chambers, the Seventh Circuit concluded, “Our review of the record in this case leads us to conclude that the disagreement among the Illinois state courts concerning the reliability of Pugh’s statement, and the necessity for its admission at Rice’s trial pursuant to Chambers, was reasonable.”

The court noted that the Illinois courts agreed on two of the four Chambers reliability indicators: (1) Pugh’s testimony was not made shortly after the crime to a close acquaintance; but (2) the testimony was a statement made against Pugh’s penal interests.

However, the Illinois courts disagreed on the remaining two factors: (3) whether corroborating evidence existed to support Pugh’s version of events; and (4) whether the state had adequate opportunity to cross-examine Pugh at the suppression hearing.

Discussing the Illinois Supreme Court’s analysis of these two factors, the court noted, “The high court reasoned that because Pugh’s suppression hearing focused on different issues than Rice’s trial, the State could not have fully tested Pugh’s reliability. Though we may disagree, knowing of no Illinois rule of evidence that restricts exploration of a witness’s veracity or motive on crossexamination regardless of the substantive scope of the direct examination, our resolution of this point is neither called for nor permitted on habeas review.”

The court continued, “The Illinois courts’ dispute over the Chambers’ factors reveals that reasonable minds can differ as to the proper application of the law to the facts of Rice’s case. Ultimately, this is all that we need to recognize and defer to in deciding whether to grant Rice’s request for habeas relief. For even if the Illinois Supreme Court’s application of Chambers was not unassailable, as shown by the contrary inferences drawn by the Illinois appellate court using the same law and the same facts, by the same logic it also was not unreasonable.”

Accordingly, the court affirmed the district court’s denial of federal habeas relief.

The Dissent

Judge Posner dissented, stating, “The U.S. Supreme Court held in Chambers v. Mississippi, 410 U.S. 284, 302 (1973), that ‘where constitutional rights directly affecting the ascertainment of guilt are implicated, the hearsay rule may not be applied mechanistically to defeat the ends of justice.’ With all due respect to the contrary view of my colleagues, it seems to me that this is just what the Supreme Court of Illinois did in this case.”

Posner concluded that the hearsay exception for statements against penal interest is not implicated by the case, but instead the hearsay exception for statements by persons not available to testify, but who gave testimony in another proceeding.

Citing FRE 804(b), which is essentially the same as Illinois law, Posner noted that such testimony is admissible if the opposing party, “had an opportunity and similar motive to develop the testimony by direct, cross, or redirect examination” in that proceeding.

Posner noted that there is no requirement of corroboration for such evidence, adding, “This is one of the solidest exceptions to the hearsay rule, see Ohio v. Roberts, 448 U.S. 56, 66 (1980), and a refusal to apply it in a criminal case presents a substantial issue under Chambers. The principal justification for the hearsay rule is that most hearsay statements, being made out of court, are not subject to crossexamination. People v. Robinson, 679 N.E.2d 1055, 105960 (N.Y. 1997). Hearsay statements made in court, albeit in a prior proceeding, do not suffer from that infirmity, provided that, as Rule 804(b)(1) puts it, the opposing party ‘had an opportunity and similar motive to develop [or challengesee Advisory Committee Note to Subdivision (b), Exception (1)] the testimony by … cross … examination.’”

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Discussing the evidence, Posner found, “Had Pugh’s testimony at the suppression hearing been believed, the motion to suppress the drug evidence would have been granted. The only evidence of probable cause to seize the drugs was the testimony of the police officer who claimed to have seen Pugh hand them to Rice, and his testimony would have been totally discredited had Pugh been believed. So the state had every incentive to crossexamine Pugh about his relation with Rice and any other circumstance that might make him less credible. … The Illinois supreme court’s determination that because the suppression hearing focused on different issues from the trial the state didn’t have the incentive or opportunity to test Pugh’s reliability fully is, with all due respect, nonsense.”

He added, “The issues were different — probable cause to seize the drugs versus Rice’s possession of them — but the incentive to destroy Pugh’s credibility the same as it would have been had he testified at trial. If he were believed, the drugs should not have been seized and Rice was not guilty of possessing them.”

Calling Pugh’s testimony “essential” to Rice’s case, and the grounds for excluding it “irrelevant,” Posner concluded that Rice is entitled to a new trial.

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David Ziemer can be reached by email.