Opinion
No. 97 C 2828
September 17, 2000
MEMORANDUM OPINION AND ORDER
On June 23, 1989, Jacob Balthuis and his father, Walter Balthuis, were stabbed to death outside a Cicero tavern. Petitioner Jose R. Villegas was convicted by a jury of the first-degree murder of Jacob Balthuis and sentenced to 50 years in prison. Jose's brother Efren was simultaneously tried for the murder of Walter Balthuis and was acquitted by Judge Ronald Banks. Jose asks the court to issue a writ of habeas corpus. He argues, first, that he was denied effective assistance of counsel because he and Efren were represented by the same attorney creating a conflict of interest. Second, Jose urges that the trial court erred in suppressing hearsay statements that another brother confessed to the crime.
Respondent argues that there was no conflict of interest: Jose and Efren pursued a joint defense at trial, arguing that a third brother, Gonzolo, actually committed both of the murders and that the State's witnesses could not accurately identify those involved in the crime. Respondent also argues that the trial court did not err in suppressing the statements of the Villegas family because the statements were uncorroborated.
This court granted Petitioner's request for an evidentiary hearing on the joint defense issue, and heard evidence in November and December 1999. Plaintiff has supplemented the record with additional evidence, and both sides have submitted post-hearing memoranda. Having reviewed the state and federal record, the court now denies the petition.
PROCEDURAL HISTORY
Jose R. Villegas was convicted of first-degree murder and armed violence in the Circuit Court of Cook County, on June 23, 1989. He was sentenced to concurrent terms of 50 years and 30 years respectively. In November 1991, Jose appealed his conviction, arguing that: (1) the court improperly excluded numerous hearsay statements; (2) the court erred in allowing the State to introduce a prior inconsistent statement of his wife; (3) defendant was denied a fair trial when the prosecutor confronted him with a prior inconsistent statement and then failed to prove it up in rebuttal; (4) the court erred in refusing to instruct the jury on second-degree murder; and (5) defendant's conviction and sentence for armed violence must be vacated because it was based on the same physical act as his murder conviction. See People v. Villegas, 222 Ill. App.3d 546, 584 N.E.2d 248 (1st Dist. 1992). On November 25, 1991, the court denied relief on all but the final claim, overturning the conviction for armed violence. With respect to the court's exclusion of Gonzolo Villegas's alleged confession, the court concluded that determination was proper under Chambers v. Mississippi, 410 U.S. 284 (1973), where Gonzolo was not available for cross-examination and his statements were not sufficiently corroborated by independent evidence or unbiased witnesses. 222 Ill. App.3d at 253, 584 N.E.2d at 252-53. The appellate court denied rehearing on January 6, 1992, and the Illinois Supreme Court denied his petition for leave to appeal on March 27, 1992. See People v. Villegas, 144 Ill.2d 642, 591 N.E.2d 30 (1992).
Petitioner raised the ineffective assistance claim in a post-conviction petition, arguing that his attorney at trial operated under a conflict of interest. He argued, in addition, that the trial court erred in excluding the hearsay admission of Gonzolo Villegas, and that the court erred in refusing to instruct the jury on second degree murder. The trial court denied that petition without a hearing, and the Illinois Appellate Court affirmed. In an unpublished order, that court noted that Petitioner's arguments concerning a conflict of interest were "matters of record which could have been raised on direct appeal," and that Petitioner's failure to do so constitutes a waiver of the claim. People of the State of lllinois v. Villegas, No. 1-94-0976 (1st Dist. Apr. 10, 1995), Ex. D to Petition for Habeas Corpus, slip op. at 4. The court went on to discuss the matter on the merits, however, specifically addressing the argument that Petitioner was prejudiced by his attorney's cross-examination of a witness called by the prosecution in the case against Petitioner's brother Efren, David Wisnieski. At trial, Wisnieski testified that Efren had murdered William Bulthuis. Petitioner's attorney cross-examined Wisnieski in the presence of the jury, eliciting from him a statement that he had once identified Petitioner himself as William's murderer. The court concluded, however, that because "Wisnieski unequivocally on redirect examination testified that Efren Villegas stabbed William Bulthuis," there was no actual conflict of interest and Petitioners's representation was adequate. Id. at 5. Petitioner sought leave to appeal, but the Supreme Court denied that request on October 4, 1995. On April 22, 1997, Villegas filed a petition in this court for a writ of habeas corpus, arguing only two issues: (1) the joint representation of Petitioner and his brother Efren resulted in an unconstitutional conflict of interest; and (2) the trial court erred in not admitting hearsay evidence that a third brother, Gonzolo, committed the crime.
Each of these claims was considered on its merits by the state courts. As noted, the Illinois Appellate Court upheld exclusion of Gonzolo's statements on direct appeal and disposed of Petitioner's adequacy of counsel claim on appeal from denial of his post-conviction petition. Under section 2254, the court may grant a writ of habeas corpus on any claim that was adjudicated on the merits in a state court, only if the state court decision (1) was contrary to, or involved an unreasonable application of federal law, or (2) was based on an unreasonable determination of the facts in light of the evidence presented in the state proceeding. 28 U.S.C. 2254(d).
In habeas corpus proceedings, factual findings by the state court are presumed to be correct unless petitioner can demonstrate otherwise by convincing evidence. See Sumner v. Mata, 449 U.S. 539 (1981); 28 U.S.C. 2254(d). Such factual findings may be "reasonable" even if they are arguably wrong, Lindh v. Murphy, 96 F.3d 856, 876-77 (7th Cir. 1996) rev'd in part on other grounds, 521 U.S. 320 (1997), and findings of fact made by the state appellate court are afforded the same presumption of accuracy as findings made by the state trial court. Milone v. Camp, 22 F.3d 693, 697 n. 2 (7th Cir. 1994). This court conducted an evidentiary hearing on Petitioner's adequacy of counsel claim, concluding that Petitioner had requested such a hearing in his post-conviction petition and that, to the extent Petitioner had failed to present facts in support of the conflict of interest claim, such failure was not his fault. See Michael Williams v. Taylor, ___ U.S. ___, 120 S.Ct. 1479, 1487, 1491-92 (2000) (§ 2254(e)(2) bars evidentiary hearing in federal habeas action only if failure to present factual basis of claim to state court was the result of some fault on petitioner's part). The evidence presented in this court on November 12, 1999 ("Hearing 1") and December 6, 1999 ("Hearing 2"), as well as the Illinois courts' decisions, support the following findings.
FACTUAL BACKGROUND
Petitioner Jose R. Villegas and five of his brothers, Efren, Gonzolo, Francisco, Jose A., and Pedro were present outside John and Mary's Tap in Cicero, Illinois on January 1, 1988. (Cicero Police Report, Ex. 2 to Respondent's Memorandum (hereinafter "Res. Ex. 2").) A fight erupted and resulted in the stabbing death of Jacob Balthuis and his father William. (Trial Record at 537.) Michael Balthuis, Jacobs' brother, was involved in the fight but fled prior to the stabbings. Shortly after the murders, all six of the Villegas brothers were arrested; a police report reflects that each had blood-stained clothing. (Evidence Report, Ex. D to Petition.) While Petitioner and Efren remained in custody, the other brothers, including Gonzolo, were released. (Transcript of Hearing 2 at 34, 39.) The day after the murders, the police learned that Gonzolo had left the area. ( Id. at 40.) Later that day, Efren and Jose went to the police, waived their Miranda rights, and told the police that Gonzolo had committed both murders. (Hearing 2, at 20-22, 34-35, Respondent's Supplementary Ex. 1; Petitioner's Ex. I.)
On January 2, Jose's wife, Carmen Villegas, also told the police that Gonzolo had confessed to both murders. (Hearing 2, at 23.) That same day, police removed one knife from Carmen's kitchen. (Cicero Police Report, Ex. J to Petitioner's Memorandum (hereinafter "Pet. Ex. J")at 2.) On January 4, Carmen returned to the police station with two more kitchen knives. ( Id. at 1.) She told police she did not know which knife was used in the murders, but she was sure that it was one of them. (Id.) She also modified the statement she had given earlier, explaining this time that Gonzolo had told her that after killing one man, he saw the other one hitting his brother Pedro and killed the second man to protect Pedro. (Pet. Ex. J, at 1.) None of the knives was admitted into evidence at trial.
The state called five witnesses who were present at the scene and had seen the fighting. Three of these witnesses testified that, before the stabbings, one of the Villegas brothers ran back into the tavern to retrieve a weapon from his coat and announced that he intended to "shoot them all." (Trial Record, at 335, 366, 412.) None of the witnesses was able to identify which of the brothers had done this.
In addition to these witnesses, the prosecutor called David Wisnieski to testify against Efren only and identify him as the stabber of William Balthuis. ( Id. at 353.) Although he was called to testify only in Efren's case, the prosecutor instructed Wisnieski, without objection from Lucenti, to "direct your answers to the jury." ( Id. at 356.) In addition to the identification of Efren, Lucenti elicited testimony from Wisnieski in the presence of the jury that he had originally told police that Jose was the person who stabbed William. ( Id. at 374-75.) Although Wisnieski did not so testify, Officer DeFalco recalled, and police reports reflect, that Wisnieski had told police that Efren was the brother who returned to the tavern to retrieve a weapon. ( Id. at 481; Cicero Police Report, Ex. H to Petitioner's Memorandum.)
Two of the state's witnesses did not observe the stabbing. (Trial Record at 238-278.) One of these two, Timothy Anderson, testified that he saw Jose Villegas wearing "a white sweater with a red `V' in the center of it." ( Id. at 218.) Officer DeFalco testified, consistent with contemporaneous police records, that Anderson told the police that Petitioner was wearing a white v-neck sweater with a red center panel and blue jeans. ( Id. at 470; Cicero Police Department-Interview With Timothy Anderson, Ex. F to Petitioner's Memorandum.) After the stabbings, Anderson testified, he observed Petitioner with a bloody knife in his hand. ( Id. at 225, 272.) State witness Michael Balthuis (brother and son of the victims) also did not observe the stabbings, but recalled seeing Jose at the scene wearing a white sweater "either with a red collar or something red underneath." ( Id. at 287.) Balthuis testified that Efren had assaulted him with a pool cue, and that Efren was dressed in a white turtleneck shirt and gray pants. ( Id. at 295-96.)
State witness David Jambrosek identified Petitioner as having been dressed in a white v-neck sweater with a red shirt beneath it. ( Id. at 405.) He testified that he saw the Petitioner stab Jacob Balthuis. ( Id. at 417-18, 421.) Later, Jambrosek identified Petitioner in a lineup as the individual who had stabbed Jacob. ( Id. at 421.) Police records indicated that Jambrosek had told the police that the person that he saw stabbing Jacob had been wearing gray pants, but at trial, under cross-examination by Lucenti, Jambrosek did not recall making such a statement. ( Id. at 426, Respondent's Ex. 4 at 47.)
Lucenti's trial strategy focused on the unreliability of the state's witnesses and evidence that Petitioner's and Efren's brother Gonzolo had committed both crimes. For example, Petitioner's wife Carmen testified that Gonzolo came home after the fight to the home where she, Gonzolo, and Jose all lived. (Trial Record, at 600-10.) She testified that Gonzolo went into the kitchen and left, later returning with a bloody knife that he threw into the sink. ( Id.) Another brother, Francisco, testified that he actually saw Gonzolo stab both victims. ( Id. at 654, 667-69.) Similarly, Jose A. (not Petitioner Jose R.) testified that he also saw Gonzolo stab both men. ( Id. at 679, 681, 691-92.) Pedro Villegas testified that he saw Gonzolo run from the house where he and Jose lived and stab the men. ( Id. at 704, 713-17.) Although this testimony was presented to the jury, the trial court did not allow these members of the Villegas family to testify that Gonzolo had confessed to them. The court ruled that these statements were hearsay and inadmissible under the rule of Chambers v. Mississippi, 410 U.S. 284, 93 S.Ct. 1038 (1973) governing hearsay statements against penal interest because they were not corroborated.
As the Illinois appellate court described the "defense posture": All defense witnesses testified consistent with a theory of misidentification, rather than a theory involving sudden and intense passion. The thrust of defendant's case was that defendant briefly fought with Michael Bulthuius, chased him down an alley and then proceeded home. Any stabbing that did occur was committed by Gonzolo Villegas while defendant was far removed from the scene.
DISCUSSION
Petitioner argues that he was denied effective assistance of counsel due to a conflict of interest because Lucenti represented both him and his brother, Efren. He also argues that the People v. Villegas, 222 Ill. App.3d 546, 557, 584 N.E.2d 248, 257 (1st Dist. 1992). trial court erred in suppressing statements by Villegas family members that Gonzolo had confessed to them. Respondent argues, first, that Petitioner's claims are procedurally defaulted. Should the court reach the merits of his claims, Respondent urges that there was no conflict of interest or, if a conflict existed, that it had no effect on Petitioner's defense. Also, Respondent argues that the trial court did not err in suppressing the statements by the members of the Villegas family or that any error did not prejudice Petitioner.
I. Ineffective Assistance of Counsel A. Procedural Default
Respondent argues that Petitioner's ineffective assistance claim is procedurally defaulted. As Petitioner correctly asserts, however, a claim of ineffective assistance of counsel is waived by failure to raise it on direct appeal only if the claim is based entirely on evidence in the trial record. See Stoia v. United States, 22 F.3d 766, 768 (7th Cir. 1994). Petitioner is relying in part on reports of the Cicero Police Department containing statements by witnesses and police officers. Thus, he is relying on evidence from outside of the record and there is no forfeiture of his claim.
Nor is there any evidence that Petitioner waived his right to effective assistance of counsel. Although most courts now draw presumptions in favor of waiver in habeas corpus petitions, the Seventh Circuit still requires that a waiver of a right as significant as this one be made knowingly and intelligently. See United States v. Patterson, 215 F.3d 776, 785 (7th Cir. 2000); St. Pierre v. Cowan, 217 F.3d 939 (7th Cir. 2000). In the present case, there is no evidence that the trial court was even aware of a potential conflict. Nor is there any evidence that Petitioner was aware of any conflict and intelligently waived it. Thus, the court must turn to the merits of Petitioner's claim.
B. Merits
In order to prove a claim that counsel provided ineffective assistance, a petitioner must ordinarily demonstrate that his attorney's performance fell below an objective standard of reasonableness and that the deficient performance resulted in actual prejudice. Strickland v. Washington, 466 U.S. 668, 687 (1984). Where a petitioner claims that the ineffective assistance is a function of a conflict of interest, the burden of proving prejudice is "somewhat lighter": prejudice is presumed if the accused individual or counsel alerted the trial court to a possible conflict and the court failed to conduct an inquiry. Cabello v. United States, 188 F.3d 871, 875 (7th Cir. 1999), citing Holloway v. Arkansas, 435 U.S. 475 (1978). If the court was not notified of a potential conflict, the petitioner can establish prejudice only by showing that his attorney "actively represented conflicting interests and that the conflict adversely affected counsel's performance." Cabello, 188 F.3d at 875, citing Cuyler v. Sullivan, 446 U.S. 335, 350 (1980) and United States v. Fish, 34 F.3d 488, 492 (7th Cir. 1994).
Petitioner here does not suggest that anyone alerted the trial court to a possible conflict infecting his attorney's representation of himself and his brother Efren. He argues, however, that he has shown ineffective assistance because the case presented the possibility of two antagonistic defenses, and that the conflict adversely affected his attorney's performance in several respects. (Petitioner's Post-Hearing Memorandum in Support of Habeas Relief ("Petitioner's Memo"), at 1-2.) Specifically, Petitioner urges, if Jose had not been represented by the same attorney who represented his brother, his attorney would have (1) elicited testimony about the clothing the brothers were wearing; (2) showed the jury that Efren had blood on his clothing; (3) elicited testimony that Efren had made death threats; and (4) declined to impeach the prosecution's witness against Efren, David Wisnieski. ( Id. at 4-9.)
2. Petitioner has not Proven Antagonistic Defenses
A conflict of interest exists "whenever one defendant stands to gain significantly by counsel adducing probative evidence or advancing plausible arguments that are damaging to the cause of a codefendant whom counsel is also representing." Griffin v. McVicar, 84 F.3d 880, 887 (7th Cir. 1996), quoting Foxworth v. Wainwright, 516 F.2d 1072, 1075 (5th Cir. 1975). Petitioner argues that such a situation exists here, as it did in United States ex rel. Vriner v. Hedrick, 500 F. Supp. 977 (C. D. Ill. 1980), where a single attorney represented two brothers charged with armed violence. One brother was acquitted but the other was found guilty and filed a habeas petition, arguing that he and his brother had antagonistic defenses "[b]ecause witnesses gave conflicting identifications of each brother as the sole perpetrator of the crimes." 500 F. Supp. at 978. In these circumstances, the court observed, defense counsel was unable to engage in aggressive cross-examination of the witnesses about the possibility of mis-identification because "what he would have gained for one client would have been lost by the other." Id. at 983. Defense counsel had brought the issue to the trial judge's attention by objecting to the consolidation of the case against petitioner with the case against his brother, and the prosecutor's own opening statement could have alerted the trial judge, noting a conflict "`as to the identity of the man with the gun, as to whether that was the defendant [petitioner] or the defendant [his brother].'" Id., quoting the trial transcript.
Like Vriner, this case involves brothers charged with crimes arising from the same incident and jointly represented by a single private attorney. There are significant differences between this case and Vriner as well, however. Most importantly, the Villegas brothers were not charged with the same crime; although both murders occurred during a fight outside the tavern, each brother was charged with the murder of a different individual. Thus, unlike Vriner, where the innocence of one defendant pointed a finger at the other, a determination that Efren Villegas was not guilty of the crime with which he was charged did not require a determination that Petitioner Jose Villegas was guilty. There is no indication here of a witness whose testimony would implicate one brother and exonerate the other.
Nor were Efren's and Jose's own versions of the events at odds with one another. Petitioner claims that he left the scene before either of the murders and saw nothing. Trial Record, at 774.) Called as a witness at a hearing before this court, the Villegas brothers' defense attorney, Robert Lucenti, testified that he was unaware of any conflict between the two defendants and would not have represented both brothers if he had been aware of any such conflict. (Hearing 1, at 29.) Although Lucenti "guess[ed]" that he had probably discussed the possible conflict with Jose, he had no specific recollection of such a discussion. ( Id. at 30.) He was firm, however, in testifying that Jose had never implicated Efren, and that if he had, "I would have had to withdraw from [representing] one or the other at that point." ( Id. at 31.)
In fact, as Respondent observes, a defense that attempted to focus responsibility on Efren for the murder would have made little sense for Jose, even in the absence of joint representation. (Respondent's Proposed Findings of Fact and Conclusions of Law, at 10.) Villegas family members testified that neither Jose nor Efren had anything to do with either of the murders. Defense counsel hoped to use these witnesses to show that Gonzolo had killed both men. With this defense in focus, a suggestion that Efren was in fact also guilty might have weakened the defense posture and, more importantly, might have impeached the testimony of the witnesses who were the most helpful to the defense's case. Where, as here, a conflict of interest was not raised at the trial level, the courts should find prejudice only where counsel "actively represented conflicting interests." See Cabello v. United States, 188 F.3d 871, 875 (7th Cir. 1999). In the circumstances of this case, the court concludes that Mr. Lucenti did not actively represent conflicting interests. To the contrary, Petitioner and his brother relied on common defense strategies, arguing that Gonzolo was the murderer and that the State's witnesses were unable to tell any of the Villegas brothers apart.
Relying on Griffin v. McVicar, 84 F.3d 880, 887 (7th Cir. 1996) and United States ex rel Gray v. Director, Dep't of Corrections, 721 F.2d 586, 596-597 (7th Cir. 1983), Petitioner argues that the pursuit of a common defense at trial does not eliminate the possibility of a conflict. (See Petitioner's Support, at 2.) Griffin and Gray are easily distinguishable, however. In Griffin, the co-defendants actually accused each other of the crime before going to trial, making it clear to counsel such a strategy was feasible. See 84 F.3d at 887. As Gray reflects, 721 F.2d at 297, the test is whether the interests of the defendants were in conflict when "making the choice" of defenses. (Petitioner's Memo, at 2.) In Gray, counsel had significant evidence implicating only one of the co-defendants that he failed to use at trial due to the conflict. See 721 F.2d at 597. In this case, there is no evidence that accusing Efren would have been a feasible strategy in defending Jose. Nor, as discussed more fully below, can Petitioner identify any significant evidence implicating Efren that counsel failed to adduce because of the joint representation. Unlike Griffin and Gray, the defendants' interests here did not conflict with one another.
Petitioner suggests that counsel did not actually pursue a joint defense at the trial. (Petitioner's Reply, at 2.) He relies on the impeachment of David Wisnieski to support his claim that counsel acted to get an acquittal for Efren at the expense of Jose. The court's review suggests, however, that Lucenti's cross-examination of Wisnieski was part of the overall mis-identification strategy. By showing that one of the state's star witnesses had originally been "fifty percent sure" that Jose had stabbed William Balthuis (Trial Record at 374), counsel enforced this strategy. Similarly, Lucenti attempted to impeach Jabrosek's testimony by asking him whether he had once identified the individual who stabbed Jacob as wearing gray pants. The record does not support Jose's contention that the cross-examination of Wisnieski was an attempt to shift the blame for Efren's crime to the Petitioner.
3. No Adverse Effect on Defense
Even if Petitioner could show that Lucenti was operating under an actual conflict of interest in representing Jose and Efren, the court concludes that he would be unable to meet the second part of the Cuyler test, the requirement that there be an adverse effect on his defense, that is, a "lapse in representation contrary to the defendant's interests." See Cuyler, 446 U.S. at 348. Again, Petitioner's central argument is that Lucenti should have accused Efren of the crime with which Jose was charged, though it is undisputed that Jose never suggested this defense and in fact insisted that he did not see anything because he had left the scene.
In addition to challenging Lucenti's overall strategy, Petitioner identifies several instances in which Mr. Lucenti might have done something differently if he had represented only Jose. (Petitioner's Memo, at 4-9.) His first argument involves the clothing worn by the defendants on the night of the stabbing. (Petitioner's Memo, at 4-7.) David Jambrosek was the only witness called by the prosecutor who testified that he actually saw the Petitioner stabbing Jacob Balthuis. (Trial Record, at 426.) Officer DeFalco testified that Jambrosek described the person who stabbed Jacob as wearing gray pants. ( Id. at 483.) Other witnesses testified, and the prosecutor stipulated, that Petitioner was wearing blue jeans the night of the murders, while Efren was wearing gray pants. ( Id. at 296.) Petitioner argues that Mr. Lucenti should have used this evidence to shift the blame for Jacob's murder to Efren and that he failed to do so only because he was representing both brothers. (Petitioner's Support, at 6.) Mr. Lucenti did, however, use this evidence to impeach Jambrosek's testimony, asking him whether he remembered telling the police that the person he described was wearing gray pants, and then eliciting testimony from Officer DeFalco that Jambrosek had in fact made such a statement. (Trial Record, at 425, 483.) Lucenti did, thus, use the available evidence to cast doubt on the validity of the eyewitness's identification. Moreover, defense counsel relied on this in making his closing argument to Jose's jury. ( Id. at 842.) Petitioner's argument that counsel erred in not using the evidence overlooks the fact that counsel did use the evidence to support Jose's case, albeit in a somewhat different manner than Petitioner now claims would have been appropriate.
The same can be said for Petitioner's argument that Lucenti failed to establish that David Wisnieski told the police that the stabber was wearing a white or yellowish sweater. (Cicero Police Department-Interview with David Wisnieski, Ex. E to Petitioner's Memorandum, at 1.) Defense counsel did ask Wisnieski about the clothing worn by the people that he saw outside of the bar. (Trial Record, at 370-377.) Wisnieski testified that he saw somebody wearing a sweater with a "V" who was not involved in the stabbing of William Balthuis. ( Id. at 376.) Moreover, Wisnieski was called only as a witness against Efren relating to the stabbing of William Balthuis, a crime for which Petitioner was not even charged. Thus, counsel did elicit testimony about the clothing from Wisnieski even though such evidence had no relation to the crime for which Petitioner was on trial.
Petitioner next argues that counsel should have introduced two other types of evidence against Efren. First, Petitioner argues that Lucenti did not show the jury that Efren had blood on his clothing. (Petitioner's Support, at 7.) The only blood evidence presented at trial was the stipulation that Petitioner had blood on his jeans that could have originated from Jose Villegas, Efren Villegas, or Jacob Balthuis. (Trial Record, at 540.) Petitioner's argument overlooks the fact that all of the Villegas brothers (including the four who were not charged with any crime) had blood on their clothing at the time of the arrest. (Pet. Ex. D.) Evidence that Efren had blood on his own clothing might have bolstered the state's case against Efren, but it would have done nothing to shift the blame from Jose.
Likewise, Petitioner's argument that Lucenti should have introduced evidence that Efren was making death threats on the night of the stabbings is also without merit. (Petitioner's Support, at 7.) Petitioner's argument centers on the fact that one witness said that Efren was the Villegas brother who ran back into the tavern looking for a weapon stating an intention to harm the people outside. (Petitioner's Reply, at 5.) Nothing indicates that Efren actually made "death threats" to any member of the Balthuis family. In any event, the testimony Petitioner believes should have been offered would have shown that Efren was involved in the fight with the Balthuis family, which was already admitted. Such evidence would rebut the case against Jose.
Petitioner finally argues that Lucenti should not have impeached David Wisnieski's testimony in front of Jose's jury. Again, however, the record shows that this was part of a consciously chosen strategy by the defense. Significantly, Petitioner was charged and tried for the murder of Jacob Balthuis, not William Balthuis. Wisnieski's testimony related only to William's death, and the jury was so instructed. Lucenti himself emphasized Wisnieski's testimony to illustrate his argument that the witnesses were completely unsure as to what they saw outside the bar. (Trial Record, at 375.) Indeed, the prosecutor urged that Wisnieski be called in Efren's case only, but Lucenti insisted that Wisnieski's inability to identify which of the brothers was involved was relevant to the case against Petitioner, as well: "[Wisnieski] at one point said it was Jose, and that, I believe, is germane to our theory of the case which is that these people don't know who did what and when, and that is our theory with regard to Jose, . . ." ( Id. at 178-80.) In short, Lucenti's strategy focused on misidentifications by all the witnesses. ( Id. at 200-205, 209, 839-855.) Although Petitioner now has second thoughts concerning that strategy, he has not established that an actual conflict of interest adversely affected the adequacy of counsel's representation of him.
In United States ex rel. Cole v. Lane, 752 F.2d 1210, 1220 (7th Cir. 1985), the Seventh Circuit denied habeas corpus relief in similar circumstances. In his petition, Cole argued that he was denied effective assistance of counsel because he and his co-defendant had the possibility of antagonistic defenses. See id. at 1213. In fact, when first talking to the police, the two had accused each other of committing the armed robbery in question. See id. At trial, however, the defendants pursued a common defense. See id at 1220. Because this was a tactical decision, the court held that the petitioner had abandoned his antagonistic defense claim. Such a strategy decision was not unusual, the court observed: "As Justice Frankfurter recognized, `Joint representation is a means of insuring against reciprocal recrimination. A common defense often gives strength against a common attack."' 752 F.2d at 1220, quoting Glasser v. United States, 315 U.S. 60, 92 (1942) (Frankfurter, J., dissenting) (also quoted in Holloway v. Arkansas, 435 U.S. at 482, 483-84 (1978)).
The court will not grant habeas relief simply because a trial strategy fails. Jose's situation is similar to that of Cole, except that there is no indication that Jose ever suggested or believed that Efren was guilty of the crime with whom Jose was charged. By pursuing the common defense at trial, Jose abandoned the possibility of an antagonistic defense accusing Efren of the murders, a defense he had never before advanced. The court will not grant his petition simply because this decision failed for him.
II. Suppression of Hearsay Statements
Petitioner's second claim is that the trial court erred in suppressing the statements made by members of the Villegas family that Gonzolo had confessed to both murders. In Chambers v. Mississippi, 410 U.S. 284 (1973), the Supreme Court laid out the test for the statement-against-penal-interest exception to the hearsay rule." Under that test, the admissibility of such a statement is determined by looking at four factors: (1) whether the statement was made to a close acquaintance shortly after the crime; (2) whether the statement is corroborated by other evidence; (3) whether the statement is self-incriminating; and (4) whether there is adequate opportunity for cross-examination. See Chambers, 410 U.S. at 300-301.
Only the second factor is at issue in the present case. Respondent does not contest that the statements were against Gonzolo's penal interest and made to close family members shortly after the crime. See People v. Villegas, 222 Ill. App.3d 546, 551, 584 N.E.2d 248, 253. Likewise, Petitioner does not claim that Gonzolo was available for cross-examination by the State. Id.
The petitioner argues that the trial court and the Illinois Appellate Court improperly evaluated the corroborating evidence because: (1) the appellate court said that no knife was found, when there was in fact a knife found at the scene; and (2) the appellate court erred in suppressing the statements merely because of "defense bias." (Petitioner's Support, at 10.) Both courts concluded that the knives did little to lend credence to the stories presented by the Villegas family.
The police record shows that Carmen Villegas brought two knives to the police, (Pet. Ex. J, at 1.) Police found a third knife in the kitchen, as well. (Pet. Ex. J, at 2.) All three knives came from the home where many members of the Villegas family lived, including Petitioner. (Pet. Ex. J at 1-2.) There was no evidence that any of the knives was actually used in the stabbings (Pet. Ex. J, at 1), and they were not admitted in evidence. The fact that these knives were recovered does little to corroborate the testimony of the members of the Villegas family that Gonzolo confessed to them.
Likewise, there was no error in determining that the statements were not trustworthy. The Seventh Circuit recognizes that statements relayed to the court through family members of defendants are likely to be tainted. See e.g., Lee v. McCaughtry, 933 F.2d 536 (7th Cir. 1991). In Lee, the Seventh Circuit denied a habeas corpus petition based on a Chambers argument because his brother-in-law made the statement that would have helped the petitioner well after the crime. See id at 537-38. Similarly, in Lee, the statements by the brother-in-law accused a friend who had left the area before the brother-in-law went to the police. The Seventh Circuit determined that these statements were too convenient to be entirely reliable. In this case, the trial court closely reviewed these statements. In part because they came from close family members and conveniently accused someone who had left the area, the trial court determined that they were unreliable.
This court's task, of course, is not to revisit the state court's determination or to consider de novo the issue of the admissibility of the hearsay statements at issue. Instead, the court will grant habeas relief only where the state court's 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" or (2) "resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." 28 U.S.C. § 2254 (d)(1)-(2). A state court's application of Supreme Court precedent is reasonable if it is "at least minimally consistent with the facts and circumstances of the case." Hennon v. Cooper, 109 F.3d 330, 335 (7th Cir. 1997). Further, when a constitutional question "is a matter of degree, rather than concrete entitlements, a . . . responsible, thoughtful answer reached after a full opportunity to litigate is adequate to support [a state court's] judgment." Lindh, 96 F.3d at 871. Thus, "[t]he statutory `unreasonableness' standard" does not permit the federal court to disturb the state court's determination so long as it "is one of several equally plausible outcomes." Hall v. Washington, 106 F.3d 742, 748 (7th Cir. 1997). In other words, if a state court asks the correct question — such as whether the trial judge abused his discretion in sustaining the hearsay objection — then the "fact-specific answer cannot be called `unreasonable' even if it is wrong. . ." Lindh, 96 F.3d at 867-77.
The court concludes the state courts' resolution of the admissibility of Gonzolo's alleged confession is one of several "equally plausible outcomes." Petitioner's request for habeas corpus relief on this basis must therefore be denied.
CONCLUSION
Petitioner has not demonstrated that his trial attorney's joint representation of himself and Efren presented a conflict of interest or that the joint representation had an adverse effect on his defense. Petitioner also fails to show that the trial and appellate courts erred in suppressing hearsay statements from his family members. Petitioner's request for a writ of habeas corpus is denied.