UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

 

MONDREA VINNING, 

Petitioner,

v.

JASON GARNETT, Warden Lawrence

Correctional center,

Respondent.

No. 03 C 2106

Judge James B. Zagel

MEMORANDUM OPINION AND ORDER

The petitioner seeks a writ of habeas corpus based on his contention that the dictates of

Doyle v. Ohio, 426 U.S. 610 (1976) have been violated. The facts as stated in the Appellate

Court are not in dispute and, since the Appellate Court expressly considered the claim made here,

I set forth the relevant portions of its opinion in People v. Vinning, 1-99-3216 (Ill. App. 1st Dist.

2001).

“Following a jury trial, defendant Mondrea Vinning was convicted of two

counts of home invasion and two counts of armed robbery. The trial court

sentenced defendant to four concurrent sentences of 26 years in prison...

The following relevant testimony was adduced at trial. Mondean Harris

testified that at about 10:30 p.m. on January 20, 1999, she went to an apartment

building at 2409 East 73rd Street where her friend Telefrieda Watson lived. Harris

was bringing Watson money from a record store that Watson owned. Harris

entered the vestibule, rang a doorbell and waited to be buzzed into the building. A

man Harris identified in court as defendant entered the vestibule and asked Harris*

name. Harris asked him who he was and what he wanted. Defendant pulled out a

gun and said he wanted her gold chain. The door buzzed to let Harris into the

building and Harris testified that defendant and two men followed her inside.

Harris testified defendant wore a hooded shirt and blue jeans and was “a couple

inches” taller than she. Harris said she was five feet six inches tall.

Defendant and the two men followed Harris to Watson*s apartment.

Defendant put his gun under Watson*s chin and tried to remove her jewelry as the
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other men entered the apartment. Both of those men wore masks, and one wore a

white jacket and walked with a limp. Defendant took two pairs of earrings from

Harris, and the man in the white jacket took about $600 from Harris* purse. Chris

Barlow, Watson*s son, entered the apartment and was struck in the face with a

gun by one of the masked men. Those men left the apartment and as defendant

went to the door, Harris pushed defendant out the door and locked it.

About four days later, Harris and Watson went to the police station at

111th Street and picked defendant*s picture from a book of photographs. Harris

and Watson learned defendant*s name and told Kevin Barlow, a relative of

Watson*s. On January 30, Harris and Watson identified defendant in a police

lineup.

On cross-examination, Harris said she described defendant to police on

the night of the incident but denied telling the officers that defendant was five feet

six inches tall. Harris said she knew before viewing the lineup that Kevin Barlow

had beaten up defendant and that in the lineup, defendant*s face was bruised while

no other man in the lineup exhibited similar injuries. When describing defendant

to police, Harris said he did not have facial hair.

Watson testified that when the doorbell rang in her apartment, she looked

out the window and saw a man in a white jacket on crutches walking quickly

toward the building*s entrance. Watson buzzed Harris into the building, and

defendant and two men entered with her. One of them asked if Chris was home,

and Watson replied she was home alone. Defendant demanded Watson*s jewelry,

and she gave him several rings and bracelets. Watson said defendant was wearing

a black hooded sweatshirt with the hood up but she could see his face clearly. The

two other men wore ski masks, and one wore a white jacket and walked with a

limp.

Watson said she picked defendant*s picture from a photo book and

identified him in a police lineup. Watson also identified pictures taken at an event

at her record store and identified defendant in one photo making a hand gesture

that a prosecutor referred to as a “gang symbol.”

On cross-examination, Watson stated she described defendant to police as

five feet six inches tall and weighing about 210 pounds. Before viewing the police

lineup, she knew that defendant had been beaten up.

Cook County Assistant State*s Attorney Jennifer Coleman testified that

on the night of the crime, she interviewed Watson and Harris, as well as Kevin

Barlow, who had been charged with battery against defendant. Coleman also

interviewed defendant on January 29 at South Shore Hospital after advising him
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of his Miranda rights. Defendant told Coleman that he knew Kevin Barlow by the

nickname “Paco.” When asked his whereabouts on the night of the offense,

defendant said he spent most of the day with his fiancé. When Coleman asked

defendant where he was later that evening, defendant said he pawned a gold

necklace and was with his fiancé the entire night. Coleman described defendant*s

demeanor during the interview as “fairly hostile” and that he “got a little bit more

aggressive” when he was asked about pawning the necklace. Defendant then told

Coleman that he would not talk to her any more.

On cross-examination, Coleman stated that defendant had a head injury at

the time of the interview and that his hands were bandaged. Coleman did not

know if defendant was on medication during the interview but said he was lucid.

For the defense, Cheryl Lewis testified that on the night of the crime, she

and defendant had dinner at her apartment and watched movies. Lewis testified

that defendant remained at her apartment all night. She stated she was not

defendant*s fiancé but was a “friend of the family.” Lewis described defendant as

between six feet one inch and six feet two inches tall and weighing about 240

pounds and said he wore a mustache and goatee in January 1999. On crossexamination, Lewis said she and defendant lived together at the time of the

offense and had lived together for about a year.

Chicago Police Detective Durrell Easter testified he was present when

Harris and Watson made their statements to police and that Harris said defendant

hit Chris Barlow twice in the face with a pistol. Easter stated that Watson said she

saw defendant walking with crutches on the night of the incident. At the close of

evidence, the jury convicted defendant of two counts of home invasion and two

counts of armed robbery. The trial court sentenced defendant to four concurrent

sentences of 26 years in prison.

On appeal, defendant first contends that the prosecution engaged in

multiple instances of misconduct that denied him a fair trial and warrant reversal

of the jury*s verdict. Specifically, defendant argues that the prosecution [among

other things] improperly (1) violated his right to remain silent when it presented

testimony that defendant stopped his interview with Coleman and also erred in

referring to that silence in closing argument...

Defendant ... asks us to review as plain error the numerous comments to

which his counsel did not object and did not include in a post-trial motion. The

plain error rule is applicable “where the evidence is closely balanced, so as to

preclude the argument that an innocent person may have been wrongly convicted”

or “where the error is of such magnitude that there is a substantial risk that the

accused was denied a fair and impartial trial, and remedying the error is necessary
4

to preserve the integrity of the judicial process.” People v. Nielson, 187 Ill. 2d

271, 297, 718 N.E.2d 131, 147 (1999). We do not find the evidence in this case to

be closely balanced, since Watson and Harris identified defendant in a police

lineup and offered testimony substantially consistent with each other*s accounts

and that of other witnesses.

We find one of defendant*s claims of error worthy of analysis under the

second prong of the plain error rule. Under Doyle v. Ohio, 426 U.S. 610, 619,49

L. Ed. 2d 91, 98,96 S. Ct. 2240, 2245 (1976), the mention of a defendant*s postarrest silence can violate his or her right to due process. However, we disagree

with defendant*s assertion that Doyle was violated in this case. Where a defendant

has expressly waived his right to remain silent and has made a statement, the

Doyle rule is generally inapplicable. People v. Mata, 243 Ill. App. 3d 365, 376,

611 N.E.2d 1235, 1243 (1993). Here, Coleman testified that after defendant was

advised of his Miranda rights, she asked if he knew Kevin Barlow. Defendant

replied he knew him as Paco and knew where he lived but had never been to

Paco*s home. Defendant then said he spent the day of the crime with Cheryl and

gave details regarding what he and Cheryl did that day.

When asked about defendant*s demeanor during the interview, Coleman

testified:

“It was fairly hostile during the entire interview. [Defendant] got a

little bit more aggressive towards the end when I was asking him

the specifics about the gold necklace — specifically, I asked him

what pawn shop he went to and he refused to tell me; and I asked

him who the gold necklace belonged to that he was pawning and

where he got it from, and he wouldn*t tell me; and at that, he said

he wouldn*t talk to me any more.”

As shown in Coleman*s testimony, defendant did not refuse to give a statement at

the outset but instead began to answer Coleman*s questions and then stopped the

interview himself. Defendant*s interview is similar to that in People v. Martinez,

86 Ill. App. 3d 486, 408 N.E.2d 358 (1980). In Martinez, this court determined

that Doyle was not violated when the interviewing officer testified he told

defendant he was collecting defendant*s cigarette butts to be compared to a butt

found at the crime scene. Martinez, 86 Ill. App. 3d at 487-88, 408 N.E.2d at 360.

The officer asked the defendant his brand of cigarettes and told defendant that a

butt at the scene matched his brand and not that of the victim, and the officer

testified that defendant “got rather ruffled and got up and walked out of the room

and stated that he had talked to me enough and didn*t want to talk to me any

longer. At that time, the interview was terminated.” Martinez, 86 III. App. 3d at

488, 408 N.E.2d at 360. This court found that mentioning the fact that the
1Her reason for doing so is that petitioner has not been able to secure a hearing in state

court despite reasonable efforts to do so under the doctrine in Lane v. Richards, 957 F.2d 363 (7th

Cir. 1992). By October of 2004 the petitioner had asked for new counsel or the right to represent

himself and have the case heard within 6 months. There appears to be no action by the state

court on this request. 

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interview ended at the defendant*s request could not be considered an

impermissible comment on his silence, noting that defendant had not remained

silent but instead had chosen to talk to the officer and later end the conversation.

Martinez, 86111. App. 3d at 489, 408 N.E.2d at 361. A similar situation occurred

here, and defense counsel did not object to any part of Coleman*s testimony

relating to defendant*s interview. Although the prosecution briefly recounted

Coleman*s testimony in closing argument, defendant*s termination of the

interview was not emphasized. For those reasons, we reject his argument on that

point... ..

Affirmed in part, vacated in part.

GALLAGHER, P.J., with BUCKLEY and O*BRIEN, JJ., concurring.”

There is an arguable question as to whether state remedies are exhausted but respondent

has expressly waived the exhaustion requirement–an act which the Attorney General of Illinois is

entitled to do.1

The Appellate Court considered the precise claim made here. To secure the writ,

petitioner must show that the Appellate Court’s decision is contrary to or employs an

unreasonable application of United States Supreme Court precedent.

His petition fails under this standard. Proving the defendant refused to answer some

questions after agreeing to speak to police after warnings does not violate Doyle. This seems to

be a clear teaching of Anderson v. Charles, 447 U.S. 404, 408 (1980). There is significant

precedent to support the proposition that refusal to answer some questions after answering others

is admissible as is the ending of the interrogation after the refusal of specific questions. The
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precedent is found in several circuits including this one. See Phelps v. Duckworth, 772 F.2d

1410 (7th Cir. 1985) Rowan v. Owens, 752 F.2d 1186 (7th Cir. 1984) United States v. Davenport,

929 F.2d 1169 (7th Cir. 1991). The issue has troubled some courts but the Appellate Court’s

decision is neither contrary to nor an unreasonable application of Supreme Court precedent.

The petition fails on procedural default grounds as well. The alleged Doyle violation

was not objected to at trial. The essential reason that the issue was not preserved at trial is

because, in my view, a Doyle error cannot be shown to have occurred. The fact that the state

court addressed the issue under plain error review does not excuse the default. Rodriguez v.

McAdory, 318 F.3d 733, 735 (7th Cir. 2003). The failure of defense counsel to object was

attacked on appeal but then was not raised in the Petition for Leave to Appeal. White v. Godinez,

192 F.3d 607,608 (7th Cir. 1999) The opening that is left for extraordinary cases involving

claims of innocence does not apply here since there is no such claim. The evidence may be, as

petitioner says, “not overwhelming” but it is far from weak as the Appellate Court so found. 

I sympathize with the frustration in post-conviction adjudication that petitioner

experienced in state courts but, with the waiver of an exhaustion objection, I have, however,

ruled on his petition within the six months he asked for in the state system.

The petition for a writ of habeas corpus is DENIED.

ENTER:

_______________________________ James B. Zagel

James B. Zagel

United States District Judge

DATE: February 8, 2005