Searcy, Derrick v. Jaimet, Danny D. ( 2003 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 02-4010
DERRICK SEARCY,
Petitioner-Appellee,
v.
DANNY D. JAIMET, Warden,
Hill Correctional Center,
Respondent-Appellant.
____________
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 02 C 2164—Robert W. Gettleman, Judge.
____________
ARGUED APRIL 3, 2003—DECIDED JUNE 23, 2003
____________
Before CUDAHY, MANION, and KANNE, Circuit Judges.
KANNE, Circuit Judge. Derrick Searcy filed a petition
for a writ of habeas corpus in the United States District
Court for the Northern District of Illinois. He claimed
that his conviction for first-degree murder was tainted by
the violation of his Sixth Amendment right to a broad
opportunity to cross-examine witnesses regarding their
motivation to testify against him. The district court agreed
that the Illinois state court had indeed violated Searcy’s
Confrontation Clause rights and granted his petition.
Because we do not believe that the Illinois state court’s
decision regarding the scope of Searcy’s cross-examina-
2 No. 02-4010
tion rights was either contrary to or an unreasonable ap-
plication of clearly established federal law, we reverse.
HISTORY
Petitioner Searcy was tried and convicted by a jury in
Cook County Circuit Court on the charge of first-degree
murder in the death of Edward Bowman. The State’s case
against Searcy rested heavily on the testimony of two
“occurrence” witnesses who were present during the
events leading up to the murder of Bowman.
The first witness, Clarence Johnson, testified that on
June 6, 1994, he saw Searcy and Bowman arguing, that
Searcy hit Bowman during their argument, and that Searcy
repeatedly told Bowman that he was going to kill him.
Johnson went on to testify that he witnessed a second
altercation between Searcy and Bowman later that same
day, this time on the front porch of Searcy’s home. During
this second argument, Searcy pulled a gun from his shoe
and chased Bowman around the side of Searcy’s house
into the alley. Johnson said he saw Searcy fire two shots
at Bowman as he chased him, neither of which hit Bow-
man. Once Bowman and Searcy reached the alley, Johnson
could no longer see them, but he said he heard five more
shots a few seconds later. After hearing the shots, Johnson
went to the alley where he found Bowman lying on the
ground.
The State’s second primary witness was Michael Brooks,
who was with Johnson during the events of June 6th.
Brooks also testified to seeing Searcy and Bowman argu-
ing early in the day and to witnessing the second argu-
ment at Searcy’s home. Like Johnson, Brooks said he saw
Searcy chase Bowman to an alley adjoining Searcy’s
home and saw Searcy fire two shots at Bowman (he was
unaware if those shots actually hit Bowman). Brooks
testified that some five to ten seconds later he heard five
No. 02-4010 3
more shots, all coming at the same time. He testified to
being the first person to arrive at the scene of the shooting,
where he found Bowman lying in the alley. Brooks said
that Bowman spoke to him at that time, telling him,
“Uhh, I’m not going to make it.”
The police arrived to find Bowman dead at the scene.
At the time, neither Johnson nor Brooks told the police
that they believed that Searcy had shot Bowman. Brooks
did tell a detective about the earlier confrontation between
Searcy and Bowman, but not that he saw Searcy shoot-
ing at Bowman in the later incident. Johnson testi-
fied that he then drove home and called Bowman’s son,
Marlonn Boyd, to tell him about the murder of his father.
They later returned to the scene, where Brooks said he
and Johnson told Marlonn that Searcy had killed his father.
On May 1, 1995, almost one year after Bowman’s death,
the police arrested Searcy on an unrelated matter. Based
on the police interviews of Johnson and Brooks on the
day of Bowman’s death, Searcy was ultimately charged
with Bowman’s murder. The State’s case against Searcy
rested primarily on the testimony of Johnson and Brooks,
who testified at trial as to what they allegedly witnessed
on the day Bowman was killed.
Given the centrality of the testimony of Johnson and
Brooks to the State’s case, a key part of Searcy’s defense
was to call into question their credibility by highlight-
ing discrepancies in their accounts. For example, Searcy
pointed out that the medical examiner testified that Bow-
man had been shot six times in the face. According to
both the medical examiner and the defense’s expert neurolo-
gist, the fourth shot to Bowman’s head likely caused im-
mediate death, conflicting with Brooks’s account of Bow-
man talking to him after he had been shot. The defense
also offered the testimony of Tonita Mills, who said that
on the day Bowman was killed, she saw Brooks arguing
4 No. 02-4010
with a man in the alley behind Searcy’s house. After she
turned away from the argument, she heard several gun-
shots. As she ran away from the scene, she saw Johnson
driving up. She testified that she did not see Searcy at
any point that afternoon.
In addition to noting inconsistencies in Johnson’s and
Brooks’s accounts, Searcy also wanted to inquire into
their possible biases and motivations in testifying. The
defense’s theory was that Brooks was the actual shooter
of Bowman, with Johnson as his accomplice, because
Brooks had learned that Bowman was acting as a police
informant, providing information about Brooks’s drug-
dealing activities. Searcy sought to question them about
the fact that after Bowman had been arrested for posses-
sion of drugs, he began negotiations with the police to
become an informant. He also wanted to cross-examine
both Brooks and Johnson about their alleged membership
in a gang that sold drugs in competition with Bowman.
Searcy argued that his evidence would show that when
Bowman was arrested for drug dealing in 1994, in the
presence of someone named Clinton Boyd (who was a
neighbor of Johnson), he told police that Michael Brooks
was a drug dealer and the one for whom the police
were looking. Searcy was prepared to call as a witness
Chicago Police Officer Donald Washington, who would
testify to the events surrounding Bowman’s arrest, as
well as his subsequent negotiations with Bowman over
the terms of a deal to act as a police informant. He also
offered the testimony of Tonita Mills, who the defense
said would testify to buying drugs from Brooks and John-
son on numerous occasions. Ultimately, the defense
sought to argue that Brooks became aware of Bow-
man’s informant activities (through Clinton Boyd talk-
ing with his neighbor Johnson, who would then talk
to Brooks), providing a motivation for him to murder
Bowman.
No. 02-4010 5
Before the opening statements in Searcy’s trial, the State
moved in limine to prevent the defense from offering
any evidence about the issue of Bowman working as a po-
lice informant. The State was apparently concerned that
the defense’s theory was to create reasonable doubt as
to Searcy’s guilt by giving the jury another potential vil-
lain, regardless of any evidence backing up accusations
against Brooks. The trial court eventually ruled that Searcy
could not cross-examine Johnson or Brooks regarding
the informant issue unless he could provide a foundation
for that line of questioning—by, for example, showing
that they knew that Bowman was informing on them.1
1
The relevant portion of the sidebar discussion in which the
court made its ruling on the State’s in limine motion proceeded
as follows:
COURT: Could you prove, by competent evidence at trial,
that Clinton told [Brooks] that Bowman threw
his name in as the owner, possessor, or a drug
dealer?
DEFENSE: I don’t think I can make that proof at this point,
your Honor, but I do not think that your Honor
can hold that against us. It goes to the weight
of the statement, not its admissibility. . . . It
clearly relates to [Brooks’s] motive to kill this
fellow, and we’ve got a clear connection—
COURT: [Brooks] has to know about it. To develop his
motive to want to kill him, he has to know the
victim, Bowman, is informing on him.
DEFENSE: I think we are entitled to let the jury make that
decision.
***
COURT: I think the linchpin of this issue, of this situa-
tion is, did [Brooks] know even if he or—or was
he informed, incorrectly, that the deceased was
informing on him.
(continued...)
6 No. 02-4010
The trial court did permit the defense to examine both
witnesses outside the presence of the jury on the informant
issue as a means of laying the foundation for such testi-
mony. During this voir dire of Johnson and Brooks, Johnson
admitted to knowing Bowman, but said that he had
never had a conversation with Clinton Boyd regarding
Bowman’s arrest. Instead, the communication between
Johnson and Clinton Boyd was limited to an occasional
1
(...continued)
DEFENSE: I don’t think we can trust [Brooks] to give us an
accurate answer in this case, your Honor.
COURT: Then I think you have to do it in some other
competent way.
DEFENSE: Your Honor, it’s very difficult to prove, for us to
go out and prove [Brooks’s] guilt. We’re entitled
to [an] inference that the jury can make that
decision.
COURT: That’s where I disagree. I think you can’t do
that. What happens is that we get into insinua-
tions and innuendos, and not fair, logical infer-
ences.
***
In terms of the informant issue though, I think
it’s perfectly clear, and it’s alluded to in the case
I just cited, that since you have not established
that you can show Brooks or Johnson knew
that if it is or was true, that Bowman was
informing on them in their alleged drug activi-
ties, I am going to preclude you from entering
into that area. I will, if you want, before Brooks
and Johnson testify, let you ask them under
oath in cross-examination-type questions, if he
was aware of that, and if he says yes, I was,
then I immediately will allow you to go into
that.
Trial Tr. at X-86-88, X-96-97.
No. 02-4010 7
“hello and goodbye.” Johnson also testified that no one
ever told him that Bowman was considering informing on
Brooks. Brooks testified that he also knew Bowman, but
denied knowing that Bowman sold drugs or that Bowman
had been arrested for drug possession in 1994. Brooks
further testified that he had no knowledge that Bowman
was considering becoming a police informant against
him. Brooks became quite agitated when asked by de-
fense counsel if he was aware that Bowman had told the
Chicago police that he was a drug dealer—so agitated,
in fact, that the trial judge had to warn Brooks to “calm
down” and “restrain [himself].”
Given that the two witnesses did not admit to know-
ing that Bowman was negotiating with police to become
an informant against Brooks, and that Searcy was unable
to meet the trial court’s requirement that he prove
such knowledge by other competent evidence, the trial
court granted the government’s in limine motion and
precluded Searcy from inquiring into the informant
issue during examination of Johnson and Brooks in the
presence of the jury.
The jury ultimately found Searcy guilty of first-degree
murder, and the court sentenced him to 42 years imprison-
ment. Searcy then took his case to the Illinois Court of
Appeals, which affirmed the conviction. That court found
that the trial court had not erred in precluding examination
into the informant issue, noting that while the Sixth
Amendment’s Confrontation Clause “guarantees the oppor-
tunity for effective cross examination[,] testimony under
cross-examination may be excluded as irrelevant if it is
remote, uncertain or conjectural.” People v. Searcy, No. 1-
98-2406, slip op. at 16 (Ill. Ct. App. Aug. 2, 2000). The court
went on to note that given the defense’s offer of proof, “[i]t
was speculative whether Clinton Boyd overheard Bowman’s
statements about Brooks . . . it was conjectural whether
Brooks or Johnson knew what Mr. Bowman stated to the
8 No. 02-4010
police or that he was becoming an informant.” Id. at 16-17.
Given the chain of speculation required to reach the
conclusion that Brooks was motivated to kill Bowman
because of his informant activities, the court concluded that
“[w]ithout such evidence [of Brooks’s or Johnson’s knowl-
edge of Bowman’s informant activities], it was not error
to refuse to allow defendant to present the police offi-
cer’s testimony or to cross-examine Brooks and Johnson on
these matters.” Id. at 17.
Searcy filed a petition for leave to appeal to the Illinois
Supreme Court, which was denied on November 29, 2000.
His next step was to seek a writ of certiorari from the
United States Supreme Court; on March 26, 2001, that
petition was also denied.
On March 25, 2002, Searcy filed this habeas petition in
the United States District Court for Northern Illinois. In
his petition, he presented three claims for relief, centered
around the Confrontation Clause of the Sixth Amendment:
(1) that requiring him to show that the witnesses against
him would admit to acts discrediting their testimony as a
precondition to cross-examining them about those acts
was contrary to the rule established by the Supreme Court
in Alford v. United States, 282 U.S. 687 (1931); (2) that
foreclosing cross-examination of the primary witnesses
against him as to their potential bias was an unreasonable
application of the principles laid down by the Supreme
Court in Davis v. Alaska, 415 U.S. 308 (1974), Delaware
v. Van Arsdall, 475 U.S. 673 (1986), and Olden v. Kentucky,
488 U.S. 227 (1988); and (3) that the Confrontation Clause
error committed by the Illinois courts was not harmless.
The district court granted Searcy’s petition, finding that
the Illinois appellate court had “unreasonably applied
federal law” by affirming the trial court’s limitation on his
ability to cross-examine Johnson and Brooks: “Although the
appellate court acknowledged the Confrontation Clause
issue at stake, and appropriately cited to state authority
No. 02-4010 9
which in turn cited to the appropriate federal precedent,
the court finds that its analysis was so erroneous as to
be unreasonable.” Searcy v. Pierson, No. 02-C-2164, 2002
U.S. Dist. LEXIS 19899, at *24 (N.D. Ill. Oct. 18, 2002).
According to the district court, the state court erred be-
cause it “entirely overlook[ed] the centrality of Brooks’s
and Johnson’s testimony to the prosecution’s case, as well
as the fact that the trial judge precluded all cross-exam-
ination on the issue of bias or motive before the jury.” Id.While the district court did “recognize[ ] and appreciate[ ]
a trial judge’s discretion to exclude speculative or conjec-
tural evidence on relevance grounds,” id. at *25, it never-
theless found that the defense had a “good faith factual
predicate” for its questions.2 Id. at *26. Having found a
Confrontation Clause violation, the district court went on
to find that the violation was not harmless and there-
fore granted Searcy’s petition. The State appealed to this
Court.
ANALYSIS
We review the decision of the district court to grant
Searcy’s habeas petition de novo. Anderson v. Cowan, 227
F.3d 893, 896 (7th Cir. 2000). The provisions of the
Antiterrorism and Effective Death Penalty Act (“AEDPA”),
however, significantly constrain any federal court review
of a state court conviction. As provided in that statute:
An application for a writ of habeas corpus on behalf
of a person in custody pursuant to the judgment of a
2
The district court identified this factual predicate later in its
opinion: “Officer Washington’s proffered testimony, the veracity
of which has not been called into question by the State, provided
a sufficient factual predicate to support the theory that Brooks
knew the victim [Bowman] had told the police about Brooks’ drug
activities.” Searcy, 2002 U.S. Dist. LEXIS 19899, at *28.
10 No. 02-4010
State court shall not be granted with respect to
any claim that was adjudicated on the merits in State
court proceedings unless the adjudication of the claim—
(1) resulted in a decision that was contrary to, or
involved an unreasonable application of, clearly
established Federal law, as determined by
the Supreme Court of the United States.
28 U.S.C. § 2254(d)(1) (2003). Because Searcy’s Sixth
Amendment Confrontation Clause claims were heard
and adjudicated by the Illinois courts, we will grant his
habeas petition only if the state court decision falls with-
in one of the narrow categories identified in the statute.
In determining whether the district court was correct
in granting Searcy’s habeas petition, we first must pin
down the “clearly established Federal law” which Searcy
argues was offended by the Illinois state court decision.
The Supreme Court has stated that only “the holdings, as
opposed to the dicta,” of that Court’s decisions qualify as
“clearly established Federal law” for purposes of AEDPA.
Williams v. Taylor, 529 U.S. 362, 412 (2000). Once the
clearly established governing legal principles are identi-
fied, we must then determine whether the state court’s
decision was either “contrary to, or involved an unreason-
able application of” those legal principles.
A. Searcy’s “Contrary To” Claim
We begin with Searcy’s contention that the limitation on
his ability to cross-examine Johnson and Brooks was
contrary to the rule of Alford. A state court decision is
“contrary to” federal law “if the state court applies a rule
that contradicts the governing law set forth” in Supreme
Court cases or “if the state court confronts a set of facts that
are materially indistinguishable from a decision of [the
Supreme] Court and nevertheless arrives at a result
No. 02-4010 11
different from [that] precedent.” Williams, 529 U.S. at 405-
06.
From the Supreme Court’s decision in Alford, Searcy
takes this legal proposition: “[T]he right to conduct other-
wise appropriate cross-examination cannot be conditioned
upon proof in advance of what the cross-examination
would establish.” In Alford, the Supreme Court held that
the trial court was wrong in precluding the defense from
asking an adverse witness where he lived. The question
was posed because the witness was then in federal cus-
tody, and the defendant wished to establish for the jury
this basis for potential bias in favor of the government.
In reversing the trial court’s limitation on the defendant’s
cross-examination, the Court stated that “[i]t is the essence
of a fair trial that reasonable latitude be given the cross-
examiner, even though he is unable to state to the
court what facts a reasonable cross-examination might
develop.” Alford, 282 U.S. at 692.
Searcy argues that the state courts’ refusal to allow
him to cross-examine Brooks and Johnson regarding
the informant issue without first providing a foundation
for his theory of bias in advance of that cross-examination
violates the rule of Alford. But the trial court did not
require that Searcy prove his defense theory before he
would let Searcy cross-examine them regarding a poten-
tial motivation for murdering Bowman. The trial court
simply conditioned Searcy’s inquiry into the informant issue
on his ability to lay a sufficient factual predicate for that
line of questioning, to avoid potential “insinuations and
innuendos, and not fair, logical inferences.” (Trial Tr. at X-
88.) That factual predicate was not required to come sole-
ly from the testimony of Brooks and Johnson; the trial
court told defense counsel that if the two witnesses would
not admit to such knowledge, “I think you have to [prove]
it in some other competent way.” (Trial Tr. at X-88.)
12 No. 02-4010
The trial court’s decision to require a sufficient fac-
tual basis for the line of questioning as a precondition to
cross-examination does not run afoul of Alford. On the
contrary, the Alford Court noted that a defendant need
be given “reasonable latitude” to conduct a “reasonable
cross-examination.” Alford, 282 U.S. at 692 (emphasis
added). In his brief to this court, Searcy himself acknowl-
edges that Alford applies to “otherwise appropriate” cross-
examination. It is well established that purely conjec-
tural or speculative cross-examination is neither reason-
able nor appropriate. See, e.g., Bui v. DiPaolo, 170 F.3d
232, 243-46 (1st Cir. 1999) (“One well-established basis
for circumscribing cross-examination is a party’s inabil-
ity to lay a proper evidentiary foundation for the questions
he wishes to pose.” (citations omitted)).
In this case, the Illinois state courts applied the correct
rule—the state appeals court identified the importance of
a defendant’s right under the Confrontation Clause to cross-
examine the witnesses against him, and it cited the cor-
rect authority governing the exercise of that right (as
acknowledged by the district court)—yet determined that
Searcy had not provided enough of a factual basis to fairly
allow him to ask highly prejudicial questions. In other
words, the trial court’s requirement that cross-examina-
tion of Johnson and Brooks be preceded by a showing of
a sufficient factual basis for the questions ensured
that Searcy’s line of inquiry was “otherwise appropriate.”
We note that the Supreme Court has recognized that “[t]he
extent of cross-examination with respect to an appropri-
ate subject of inquiry is within the sound discretion of
the trial court.” Alford, 282 U.S. at 694. Given this, we
cannot say that the trial court’s decision was contrary to
Alford.
No. 02-4010 13
B. Searcy’s “Unreasonable Application” Claim
Searcy next argues that his conviction involved an
unreasonable application of the federal law laid down in
a trio of Supreme Court cases: Van Arsdall, Davis, and
Olden. A state court decision involves an “unreasonable
application” of federal law “if the state court identifies the
correct governing legal principle from [the Supreme] Court’s
decisions but unreasonably applies that principle to the
facts of the prisoner’s case.” Williams, 529 U.S. at 413. The
Supreme Court has emphasized that “[t]he ‘unreasonable
application’ clause requires the state court decision to be
more than incorrect or erroneous. The state court’s ap-
plication of clearly established law must be objectively
unreasonable.” Lockyer v. Andrade, 123 S. Ct. 1166, 1174
(2003) (citations omitted); see also Williams, 529 U.S. at
411 (“[A] federal habeas court may not issue the writ sim-
ply because that court concludes in its independent judg-
ment that the relevant state-court decision applied clearly
established federal law erroneously or incorrectly.”). We
have taken this to mean that substantial deference is
due state court determinations: “the statute commands
deference to the state court’s judgment by using the
word ‘unreasonable,’ which is stronger than ‘erroneous.’ ”
Hennon v. Cooper, 109 F.3d 330, 334 (7th Cir. 1997); see
also Lockyer, 123 S. Ct. at 1175 (cautioning against con-
flating error with unreasonableness). Under such a defer-
ential regime, a reasonable state court judgment is one
“at least minimally consistent with the facts and circum-
stances of the case . . . even if it is not well reasoned or
fully reasoned, or even if it is one of several equally plausi-
ble outcomes.” Schaff v. Snyder, 190 F.3d 513, 523 (7th
Cir. 1999) (quotations omitted).
From the trio of cases he cites, Searcy distills this govern-
ing legal principle: “Courts may not completely foreclose
cross-examination regarding witness bias.” In Davis, the
Supreme Court emphasized that “[t]he partiality of a
14 No. 02-4010
witness is subject to exploration at trial, and is always
relevant as discrediting the witness and affecting the
weight of his testimony. . . . [T]he exposure of a witness’
motivation in testifying is a proper and important func-
tion of the constitutionally protected right of cross-exam-
ination. ” 415 U.S. at 316 (quotation and citation omitted).
The importance of permitting a defendant broad scope in
cross-examining the witnesses against him was reaf-
firmed by the Court in Van Arsdall, 475 U.S. at 678-79,
and Olden, 488 U.S. at 231.
But it is also well established that a defendant does
not enjoy an unlimited right to pursue any subject on cross-
examination, as the Supreme Court has made clear:
It does not follow, of course, that the Confrontation
Clause of the Sixth Amendment prevents a trial judge
from imposing any limits on defense counsel’s inquiry
into the potential bias of a prosecution witness. On
the contrary, trial judges retain wide latitude insofar
as the Confrontation Clause is concerned to impose
reasonable limits on such cross-examination based on
concerns about, among other things, harassment,
prejudice, confusion of the issues, the witness’ safety,
or interrogation that is repetitive or only marginally
relevant.
Van Arsdall, 475 U.S. at 679. Lower courts have applied
this language to justify limitations on cross-examina-
tion into subjects for which there is no proper foundation,
see Reddick v. Haws, 120 F.3d 714, 717 (7th Cir. 1997)
(finding that limitation on cross-examination was appro-
priate when the defendant “could neither lay a rudimen-
tary foundation for the circumstances [into which he
wished to inquire], nor establish when the underlying
conduct took place, despite the considerable leeway the
trial court was willing to give him on this”); United States
v. Lin, 101 F.3d 760, 767-68 (D.C. Cir. 1996) (“Highly
No. 02-4010 15
prejudicial questioning of the sort proposed here, however,
requires a reasonable grounding in fact.”); Bui, 170 F.3d
at 243-46, or into matters that are unduly speculative, see
United States v. Lo, 231 F.3d 471, 482-83 (9th Cir. 2000)
(affirming limitation on cross-examination into fraud al-
legations because of “the highly speculative nature” of
those allegations).
In Searcy’s case, the district court found that the Illinois
courts had unreasonably applied the Van Arsdall-Davis-
Olden principle by “precluding the defense from cross-
examining the State’s key witnesses about their biases
and motives.” Searcy, 2002 U.S. Dist. LEXIS 19899, at *29.
But that is too broad a characterization of what the
state courts did. They did not foreclose any inquiry into the
bias or motivation of key prosecution witnesses; such a
complete limitation would clearly violate the rule of
Davis, Van Arsdall, and Olden. Rather, the state courts
required that before Searcy could question Johnson and
Brooks about Bowman negotiating to act as a police infor-
mant, he provide, by competent evidence, a sufficient
factual basis for those questions—what the trial court judge
called the “linchpin of this issue.” The question in this
habeas case, therefore, comes down to whether the trial
court, in requiring a (rather substantial) showing of fac-
tual support for Searcy’s informant questions, went be-
yond imposing a “reasonable” limit (based on foundation
concerns) on Searcy’s ability to confront the witnesses
against him.
At trial, Searcy offered several items of evidence that
he said provided a factual basis for his informant ques-
tions, the most important of which was the testimony of
Officer Washington. The officer was prepared to testify
that at the time of Bowman’s arrest, there was another
individual present (Clinton Boyd) who was close enough
to have heard Bowman protest that the police had “got
the wrong guy” and that they should go after “Country”
16 No. 02-4010
(Brooks’s nickname). He would testify that after the arrest,
he began to negotiate a deal whereby Bowman would
work as a police informant in exchange for lenient treat-
ment in connection with his drug arrest, but that Bowman
was killed before the deal could be finalized. Officer Wash-
ington was apparently unable to testify, however, that
Clinton Boyd had told either Johnson or Brooks of Bow-
man’s accusatory statement at the time of his arrest, that
Clinton Boyd was even aware of the negotiations over
Bowman’s informant status, or that anyone else had
learned of the negotiations and informed either Johnson
or Brooks.
In addition to Officer Washington’s testimony, Searcy
offered the testimony of Tonita Mills, who stated at trial
that she had previously bought drugs from both Johnson
and Brooks, and that she had witnessed Brooks arguing
with Bowman immediately prior to his murder. Searcy
contends that her testimony adds to his factual predicate
by demonstrating that Brooks and Johnson had a reason
to fear Bowman’s informing on them (by showing that
they actually were drug dealers) and that Brooks was
angry at Bowman for some reason, causing them to argue.
Searcy also noted that during the voir dire of Johnson
outside the presence of the jury, Johnson admitted that
he knew both Clinton Boyd and Bowman, and that he
had spoken with Bowman between his arrest and murder.
Searcy suggests this evidence, taken together, provides a
sufficient basis from which the jury could reasonably
infer that Johnson had in fact learned of Bowman’s infor-
mant activities.
Both the Illinois trial court and the Illinois appellate
court found that Searcy’s evidentiary proffer was insuffi-
cient to avoid problems of innuendo and insinuation. The
district court disagreed, finding that the state courts
should have allowed cross-examination on the issue of
No. 02-4010 17
Brooks’s and Johnson’s motivation for murdering Bowman.
The district court concluded that “[g]iven the theory of
bias and motive at stake, the centrality of Brooks’s and
Johnson’s testimony to the prosecution, and defendant’s
good faith predicate,” the limitation on Searcy’s cross-
examination of Brooks and Johnson violated his Confron-
tation Clause rights. Searcy, 2002 U.S. Dist. LEXIS 19899,
at *26. As demonstrated by the district court’s opinion,
that determination required the balancing of several
factors. See id. at *23 (“Confrontation Clause violations
do not lend themselves to simple straightforward analysis,
but rather involve a balancing of many factors.”). Presum-
ably, the state courts weighed the same factors as the
district court—the theory of the defense, the importance
of the testimony of Johnson and Brooks to the prosecution,
and the strength of the proffered factual predicate for the
line of questioning—but came to a different conclusion.
As the Supreme Court has emphasized, for a federal
habeas court to reject the state courts’ application of fed-
eral law, the state courts’ conclusions must be “more
than incorrect or erroneous.” While we would have pre-
ferred that the trial court had accepted a less substantial
factual showing before allowing cross-examination, or
that Searcy have been allowed to cross-examine the wit-
nesses based on the proof he had offered, our view of
the “correct” conclusion is not dispositive. Our review is
limited to the question of whether the state courts’ resolu-
tion of the issue was “objectively unreasonable.” Lockyer,
123 S. Ct. at 1174. A federal court’s deference to the
state court’s resolution of the issues involved is even more
important when such resolution requires the weighing
of factors against one another: “when the constitutional
question is a matter of degree, rather than of concrete
entitlements, a ‘reasonable’ decision by the state court
must be honored.” Holman v. Gilmore, 126 F.3d 876, 881-82
(7th Cir. 1997) (quotation omitted)). Indeed, the trial tran-
18 No. 02-4010
script discloses an informed and highly professional discus-
sion among the judge and opposing lawyers on this issue.
In this case, we cannot say that the Illinois courts’
determination that Searcy had failed to establish a suffi-
cient factual basis for his desired line of questioning
was “objectively unreasonable.” On the contrary, the Illi-
nois courts’ decision was “at least minimally consistent
with the facts and circumstances of the case . . . even if it
is not well reasoned or fully reasoned;” that decision was,
at the least, “one of several equally plausible outcomes.”
Schaff, 190 F.3d at 522.
Searcy’s offer of proof in support of his cross-examination
effort was far from a “slam dunk.” The testimony of Offi-
cer Washington and Tonita Mills, as well as the admis-
sion by Johnson that he both knew and had spoken
with Clinton Boyd, simply established that it was possible
for Boyd to have heard Bowman’s statement regarding
Brooks at the time of his arrest, and that it was possible
for Boyd to have mentioned this to Johnson, who then
possibly told Brooks. The evidence proffered by Searcy did
not suggest how Boyd, Johnson, or Brooks had become
aware (if indeed they had) that Bowman had moved be-
yond making a “you got the wrong guy” statement at the
time of his arrest to begin negotiations to serve as a po-
lice informant. Finding the offer of proof insufficient to
support the line of questioning Searcy desired was a
“plausible” (even if, in our opinion, incorrect) conclusion
by the state trial and appellate courts.
While it is true that when the testimony of a witness
is central to the prosecution’s case, a defendant should
be given the “maximum opportunity” to cross-examine
that witness, Burr v. Sullivan, 618 F.2d 583, 587 (9th Cir.
1980), that does not mean that a defendant will be given
every opportunity, no matter how speculative, confusing,
or irrelevant the line of questioning may be. While a
No. 02-4010 19
close question in this case, we cannot say that it was
unreasonable for the Illinois courts to have required Searcy
to demonstrate a factual basis for the informant line of
questioning (even if we disagree with the level of proof
the Illinois courts required). Because that decision was
not objectively unreasonable, it is entitled, under AEDPA,
to deference from a federal habeas court.
CONCLUSION
The Illinois Court of Appeals’ decision affirming Searcy’s
conviction was neither “contrary to” nor did it involve “an
unreasonable application of” clearly established federal
law. Therefore, the decision of the district court granting
Searcy’s petition for a writ of habeas corpus is REVERSED
and Searcy’s petition is DENIED.
CUDAHY, Circuit Judge, dissenting. As the district
court and the majority have both recognized, this case
boils down to balancing Searcy’s constitutional right to
confront his accusers against a requirement that he
make a more or less conclusive showing (as an evidentiary
foundation) that Brooks and Johnson were aware of Bow-
man’s informant activities. The district court held that
the Illinois courts had struck an unreasonable balance,
while the majority believes that those courts reached “one
of several equally plausible outcomes,” even if not the
“preferred” one. Maj. op. at 17, 18. I agree with the district
court that the state balancing was so lopsided as to amount
to an unreasonable application of Supreme Court precedent.
The difference between the state view and an appropriate
20 No. 02-4010
federal view is more than the minor discrepancy that the
majority would countenance in an exercise of deference.
Since the majority opinion does an admirable job of lay-
ing out the relevant facts, I shall stress only a few key
points. First, Brooks and Johnson were not merely central
to the prosecution’s case—they were the case. The prosecu-
tion’s only evidence tying Searcy to Bowman’s murder
was the testimony of Brooks and Johnson; there was no
physical evidence at all (indeed, the medical evidence
strongly suggested that at least part of Brooks’ testimony
was false). Brooks and Johnson came forward with their
eyewitness accounts almost a full year after the murder
had taken place, although they had been interviewed by
the police on the day of the murder. Second, Searcy’s
defense at trial was that Brooks and Johnson were the
guilty parties. To support this theory, Searcy needed to
demonstrate to the jury a potential motive for Brooks
and Johnson to murder Bowman. Searcy planned to show
such a motive by cross-examining Brooks and Johnson on
their rumored membership in a gang that sold narcotics in
competition with Bowman and their probable awareness
of the fact that Bowman was cooperating with police as
an informant on Brooks’ drug activities. Both lines of cross-
examination were, as recounted in the majority opinion,
denied.
Third, Searcy offered outside of the jury’s presence
substantial evidence connecting Brooks and Johnson to
knowledge of Bowman’s informant activities. Chicago
police officer Donald Washington swore in an affidavit
that he and another officer had arrested Bowman three
months before his murder. At that time, in the presence
of Clinton Boyd, who was a neighbor of Johnson, Bowman
protested that Washington had “the wrong guy,” and
that he should instead arrest Brooks. Washington fur-
ther swore that Bowman was actually in negotiations to
act as an informant against Brooks before Bowman was
No. 02-4010 21
murdered. Of course, Brooks denied knowledge of these
facts, but when questioned outside the presence of the
jury about them, he became quite agitated, prompting
the trial judge to instruct Brooks to “remain calm” and
“restrain [himself].” Johnson acknowledged speaking to
Boyd in the time between Bowman’s arrest and Bowman’s
death, though only casually and not about Bowman.
The decisions of the Illinois courts here cannot be recon-
ciled with the abundant precedent that protects a defen-
dant’s constitutional right to probe bias and motive of
prosecution witnesses in cross-examination before the jury.
See, e.g., Davis v. Alaska, 415 U.S. 308, 316 (1974) (“The
partiality of a witness is subject to exploration at trial,
and is always relevant as discrediting the witness and
affecting the weight of his testimony.”) (internal quotation
marks omitted); Redmond v. Kingston, 240 F.3d 590, 593
(7th Cir. 2001) (“ ‘[W]hile generally applicable eviden-
tiary rules limit inquiry into specific instances of conduct
through the use of extrinsic evidence and through cross-
examination with respect to general credibility attacks, . . .
no such limit applies to credibility attacks based upon
motive or bias.’ ” (quoting Quinn v. Hayes, 234 F.3d 837,
845 (4th Cir. 2000)). Trial courts must permit defendants
“to expose to the jury the facts from which jurors, as the
sole triers of fact and credibility, could appropriately
draw inferences relating to the reliability of the witness.”
Davis, 415 U.S. at 318. “Limitations on cross examina-
tion rise to the level of a Sixth Amendment violation when
they prevent the exposure of a witness’s bias and motiva-
tion to lie.” United States v. Smith, 308 F.3d 726, 738 (7th
Cir. 2002) (citing Delaware v. Van Arsdall, 475 U.S. 673,
678-79 (1986)). The importance of the right of cross-exami-
nation is heightened when the testimony of the witness
in question is the only evidence directly linking the de-
fendant to the crime. Olden v. Kentucky, 488 U.S. 227, 233
(1988); Davis, 415 U.S. at 317-20. Where a witness’s tes-
22 No. 02-4010
timony is “virtually the only evidence of [the defendant’s]
guilt,” the witness’s credibility becomes the “central issue
in the case.” Redmond, 240 F.3d at 592. The Confronta-
tion Clause requires that a defendant be allowed to ques-
tion such key witnesses so that the jury can “make an
informed judgment as to the weight to place on . . . testi-
mony which provide[s] a crucial link in the proof” against
the defendant. Davis, 415 U.S. at 317 (internal quotation
marks omitted).
Even though the denial here of effective cross-examina-
tion seems erroneous in itself, the prosecutor’s closing
arguments made that denial even more prejudicial: “Where
is [Brooks’ and Johnson’s] motive? We have all these
little shadowy insinuations, all these speculations about
drugs . . . . How does that tie into [Brooks and Johnson]? . . .
There is no evidence folks.” The prosecution referred to
Brooks and Johnson as “heroes,” “excellent witnesses” and
“two of the most credible people that will ever come into
a courtroom.” Ignoring Brooks’ obvious agitation outside
the presence of the jury, the prosecution also referred
specifically to the heightened credibility conferred by his
demeanor in court. These jury arguments highlight the
overwhelming importance to Searcy of his Confrontation
Clause right to cross-examine Brooks and Johnson.
Searcy showed that Bowman was about to act as an
informant against Brooks. Searcy also showed that John-
son’s neighbor had likely overheard Bowman tell the po-
lice that Brooks should be arrested for drug dealing.
Johnson even admitted to speaking with his neighbor in
the relevant time period. The only piece of information
not fully verified was whether, in fact, the critical infor-
mation was transmitted from Johnson’s neighbor to John-
son and Brooks. In essence, the trial judge refused Searcy
his constitutional right to cross-examination simply be-
cause Brooks and Johnson refused to inculpate them-
selves on the stand. This, I believe, was a serious error.
No. 02-4010 23
Even if cross-examination of Brooks and Johnson on these
matters had resulted in denials, cross-examination would
have permitted the jury to observe Brooks’ agitated de-
meanor when confronted. See Henry v. Speckard, 22 F.3d
1209, 1215 (2d Cir. 1994) (explaining that “the witness
may well answer bias-probing questions in the negative;
but the matter of whether her answers should be be-
lieved or disbelieved is within the sole province of the
jury”). Balanced against the crucial significance of Brooks’
and Johnson’s testimony, the purported “missing link” in
Searcy’s motive evidence hardly presented a sufficient
degree of speculation to justify denial of his Sixth Amend-
ment rights.
I therefore respectfully dissent.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—6-23-03