Trejo, Jose v. Hulick, Donald ( 2004 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 03-3563
JOSE TREJO,
Petitioner-Appellant,
v.
DONALD HULICK,
Respondent-Appellee.
____________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 02 C 4387—Paul E. Plunkett, Judge.
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ARGUED AUGUST 3, 2004—DECIDED AUGUST 19, 2004
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Before POSNER, ROVNER, and DIANE P. WOOD, Circuit
Judges.
POSNER, Circuit Judge. Jose Trejo was convicted in an
Illinois state court of murder, and after exhausting his state
remedies sought federal habeas corpus, lost in the district
court, and appeals. He argues that no reasonable trier of fact
could have found that there was enough evidence to support
a finding of guilt beyond a reasonable doubt, Jackson v.
Virginia, 443 U.S. 307 (1979), and that the state appellate
court was unreasonable to suppose there was and so he is
entitled to relief under 28 U.S.C. § 2254(d)(1) (unreasonable
application of a rule of federal law clearly established by the
U.S. Supreme Court).
2 No. 03-3563
“Vicious” Trejo and “Aggie” Villalobos were members of
a gang called Satan’s Disciples, as was Danny Valencia. The
night after a gang meeting at which Valencia and Villalobos
clashed, Valencia was murdered. Trejo, Villalobos, and a third
gang member were prosecuted for the murder. At the con-
clusion of a bench trial, the judge convicted Trejo while acquit-
ting the other two defendants.
The case against Trejo rested on the testimony of three wit-
nesses. (In contrast, the cases against his codefendants rested
on just one witness each.) One of them, Patricia Negrete, an-
other Satan’s Disciple, had given a state’s attorney a signed
statement that hearing gunshots emanating from an alley
near where she lived she had run to the alley’s entrance and
seen Villalobos swinging his right arm at someone lying on
the ground and heard the victim cry out, “You’ve already
got me.” At trial Negrete proved to be a hostile witness and
denied having seen anything. But confronted with her signed
statement, she testified that she had told the state’s attorney
who had written up the statement that she had seen Trejo and
Villalobos kill Valencia, though there is no mention of Trejo
in the statement itself.
The second witness, Juan Garibay, shown a photo array
that included Trejo, told the police that Trejo looked like one
of the men whom he had seen from the window of his house
running in the alley on the night of the murder and several
months earlier had seen park a car in front of the house. (He
later identified Trejo in a line-up, as well.) On the night of
the murder, however, Garibay was not wearing his glasses;
although he is required to wear them when driving, he testi-
fied that he sees fine without them. He also testified, contrary
to what he had told the police, that he didn’t recall ever having
seen Trejo. He added, however, that his family had been threat-
ened if he testified, and this may explain his recantation.
No. 03-3563 3
The third witness, Ricardo Gonzalez, another Satan’s
Disciple, testified to having heard Trejo and the third defen-
dant admit murdering Valencia. Gonzalez testified that he
too was afraid of retribution for testifying.
Trejo contends that Negrete did not implicate him in either
her statement or her testimony; that Garibay’s identification
of him as one of the men in the alley was wholly unworthy
of belief; and that the trial judge must have disbelieved
Gonzalez’s testimony because the judge acquitted the third
defendant, whom Gonzalez had implicated equally with Trejo.
But given our deferential standard of review, which requires
us to consider not whether the state courts were incorrect
but whether they were unreasonable, we cannot allow Trejo to
peel the onion in this fashion. Always to be borne in mind
is that “a number of weak proofs can add up to a strong
proof.” Mataya v. Kingston, 371 F.3d 353, 358 (7th Cir. 2004);
see also Rowan v. Owens, 752 F.2d 1186, 1188-89 (7th Cir.
1984); cf. United States v. Jakobetz, 955 F.2d 786, 793, 798-800 (2d
Cir. 1992). Trejo misses the point in mounting separate at-
tacks against each of the three witnesses without considering
that the whole might be greater than the sum of the parts.
To start at the back end: since Gonzalez’s testimony was the
only evidence against the third man, the fact that the judge
thought it insufficient to convict that man beyond a reason-
able doubt does not establish that he disbelieved it; nor did
he say he disbelieved it. His action signifies only that he
thought the confession required corroboration. The question
then becomes whether it was reasonable to conclude that
Gonzalez’s testimony was sufficiently corroborated by either
Negrete or Garibay (or both) to justify convicting at least Trejo.
While not entirely without probative value, Garibay’s evi-
dence was weak, although this was not because of his recan-
tation, which is easily explained by the threats to his family.
One problem is his glasses. Glasses for driving correct prob-
4 No. 03-3563
lems with distance vision, so if Garibay had testified that he
can read fine without his glasses, that would be believable.
But to see a man in the alley from his house would presum-
ably require the use of his distance vision, and if he could
see the man without his glasses one wonders why he needs
glasses for driving. Still, we do not know how far away the
man was when Garibay saw him; he might have been at a
point in the alley just outside Garibay’s window.
There is a bigger hole in his testimony: it is highly implau-
sible that he would have remembered Trejo from having
seen him park his car months earlier, unless Trejo’s appear-
ance is extremely distinctive, which is not suggested. Even
so, while Garibay’s picking out Trejo in the photo spread may
have been just a lucky guess, it is something. His picking
him out of the line-up later was something too, though less.
Having identified Trejo from his photograph, Garibay would
have been primed to pick him out of a line-up as well; yet
if mistaken the first time he might have caught his mistake
when confronted with the person, since what he had seen in
the alley on the fatal night was a person rather than a photo-
graph.
Negrete’s testimony provides stronger corroboration of
Gonzalez’s. True, if taken literally it seems just a mistaken
recollection of what was in her signed statement, which did
not mention Trejo. But there are alternative interpretations.
One, which seems however quite implausible, is that Negrete
told the state’s attorney who took down her statement that
Trejo was one of the murderers, but the state’s attorney some-
how neglected to record this crucial accusation. The second
interpretation, which is quite plausible, is that Negrete remem-
bered (erroneously) having told the prosecutor that Trejo
had been one of the murderers because he had been one of the
murderers—she had seen him in the alley. Indeed, why else
would she have remembered having told the state’s attorney
No. 03-3563 5
this? Remember that she was a recalcitrant witness. Asked
point blank what she saw on the night of the murder, she
said she saw nothing. But she was insistent, indeed em-
phatic, that she had told the state’s attorney that she had seen
Trejo.
Here is the relevant testimony:
Q: What was in the statement prepared by the state’s
attorney?
A: That I seen who did it.
Q: That you seen him?
...
A: I said I seen Aggie and Vicious doing it.
Q: You said you saw Aggie and Vicious do what.
A: Kill Giz?
Q: Kill what?
A: Kill Gizmo [Valencia].
Q: It’s your testimony that you told the state’s attorney
you saw Aggie and who kill Gizmo?
A: Vicious.
Q: And Vicious kill Gizmo?
A: Yes.
Q: What did you see Vicious do?
A: Nothing.
Q: So you didn’t see Vicious do anything?
A: Correct.
Q: And your testimony today is that you told the police
and the state’s attorney that Vicious is someone you saw
there that night?
A: Saw what night? When it happened?
6 No. 03-3563
Q: That’s the only night we are talking about, Ms.
Negrete.
A: I didn’t see nobody that night.
Q: My question was did you tell the police and the state’s
attorney that you saw Vicious out there that night?
A: Yes.
...
Q: What did you tell them you saw Vicious do when he
was in the alley with Aggie?
A: I don’t remember.
Notice that after admitting that she had told the police and
the state’s attorney that she’d seen Vicious killing Valencia,
she testified that she didn’t remember what she’d seen Vicious
doing. One way to dissolve the contradiction is to interpret
her testimony as a whole as an unguarded and implicit, but
nevertheless credible, acknowledgment that she had indeed
seen Trejo commit the murder.
There was enough evidence—if barely enough, given the
well-known vagaries of eyewitness identification, see, e.g.,
Gary L. Wells & Elizabeth A. Olson, “Eyewitness Testimony,”
54 Ann. Rev. Psych. 277 (2003)—to support Trejo’s conviction.
The denial of habeas corpus relief is therefore
AFFIRMED.
A true Copy:
Teste:
_____________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—8-19-04