Lorenzo Ellison v. Gerardo Acevedo ( 2010 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 08-2977
L ORENZO E LLISON,
Petitioner-Appellant,
v.
G ERARDO A CEVEDO ,
Respondent-Appellee.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 02-CV-8546—Joan B. Gottschall, Judge.
A RGUED N OVEMBER 13, 2009—D ECIDED JANUARY 28, 2010
BeforeK ANNE and T INDER, Circuit Judges, and
G RIESBACH, District Judge. 1
G RIESBACH, District Judge. On May 5, 1993, a Lake
County, Illinois jury found Lorenzo Ellison guilty of first-
degree murder in the death of Quincy King, a four-month-
old infant. He was sentenced to 60 years in prison. After
1
Hon. William C. Griesbach, District Judge for the Eastern
District of Wisconsin, sitting by designation.
2 No. 08-2977
unsuccessfully appealing his conviction and the denial
of a subsequent motion for post-conviction relief in the
Illinois appellate courts, Ellison filed a petition for a
writ of habeas corpus pursuant to 28 U.S.C. § 2254. The
district court denied Ellison’s petition but issued a certifi-
cate of appealability on several issues, two of which
have been briefed for appeal: (1) whether the failure of
his trial attorney to consult with or call an expert witness
on “shaken infant syndrome” constitutes ineffective
assistance of counsel; and (2) whether the prosecutor’s
closing argument deprived Ellison of due process.2 We
find no deprivation of federal rights and affirm the
district court’s decision denying the petition.
I. BACKGROUND
On November 20, 1992, at approximately 12:00 p.m.,
paramedics from the Waukegan Fire Department were
dispatched to Ellison’s apartment in response to a call
that a baby (later identified as Quincy King) was not
breathing. Quincy’s mother, Jacqueline King, was
2
The district court also granted a certificate of appealability
on Ellison’s claims that the State failed to prove his guilt
beyond a reasonable doubt and that he was denied due
process by the trial court’s failure to change venue sua sponte, as
well as other aspects of his ineffective assistance claim. This
Court appointed counsel who has elected to pursue only the
two issues noted above. The remaining issues are therefore
forfeited. Rodriguez v. United States, 286 F.3d 972, 977 n.3 (7th
Cir. 2002).
No. 08-2977 3
involved in a romantic relationship with Ellison and had
moved into his apartment with Quincy and her other
two children on October 30, 1992. A third adult, Roberto
Smith, was also staying with Ellison at the time. Upon
their arrival, paramedics found Quincy lying motionless
on a bed in the apartment with his eyes closed. Ellison
told paramedics that he had been playing with the baby
by throwing him up in the air when he stopped breathing.
The paramedics transported Quincy to the hospital
where he was examined by Dr. Thomas Glimp. Dr. Glimp
noted that Quincy was not breathing, had no pulse, and
had a bruise on his left cheek. The “soft spot” on Quincy’s
skull was firm and bulging, indicating pressure or fluid
in the skull. Dr. Glimp asked Ellison what happened, and
he again stated he had been tossing the baby in the air
when the baby stopped breathing. Thinking that the
explanation did not square with Quincy’s injuries and
that the child was the victim of shaken infant syndrome,
Dr. Glimp notified hospital staff who contacted the De-
partment of Children and Family Services. Quincy was
then transported to another hospital where he was pro-
nounced dead the next day. A subsequent autopsy con-
firmed that the cause of death was blunt force injury to
the brain associated with shaken infant syndrome.
Ellison was interviewed by Sergeant Fernando Shipley
and Detective Donald Meadie of the Waukegan Police
Department the night after Quincy was taken to the
hospital. Ellison gave two statements: one in his own
handwriting, and a second that Detective Meadie typed
and Ellison signed. In both statements, Ellison admitted
4 No. 08-2977
that he was bouncing Quincy on the bed before he
stopped breathing, but added that he had also shaken
him when he started crying. In his handwritten state-
ment, Ellison wrote:
I started to play with Quincy and throw him up in
the air and bounced him on the bed and he started
to cry and I shook his face to keep him from crying
and don’t know how hard I shook his face and
bounced him on the bed and Bob [Roberto Smith]
gave him CPR and I called 911 emergency and I don’t
see him breathing.
The typewritten statement Ellison signed likewise de-
scribes shaking the child, as well as bouncing him on the
bed:
The last time I bounced Quincy on the bed, he fell
away from me, and that was when I grabbed him with
both hands around his head to prevent him from
falling off the other side. I was trying to get Quincy
to stop crying, so I started shaking him, but I guess
I shook him too hard.
According to the detectives, Ellison also demonstrated
for them how he had shaken Quincy by moving both
hands back and forth in a “vigorous motion.”
Ellison was thereafter charged with one count of first-
degree murder and arraigned on December 15, 1992. At an
early pretrial conference on January 27, 1993, Ellison’s
retained counsel, Attorney Seymour Vishny, indicated he
was in the process of obtaining an expert but would
need three to four weeks to do so. It appears, however,
No. 08-2977 5
that Attorney Vishny was under the impression that
either Ellison or his family would have to pay for
an expert, and he reported at a pretrial conference on
February 11 that he was having difficulty getting the
family to cooperate. The trial court explained that there
were other options that were not dependent on family
resources and continued the case for the following
week. By that time, Ellison’s family had retained Attorney
Robert Pantoga to replace Attorney Vishny, and the case
was again continued for another week.
On February 24, the court set the matter for trial on
April 26, 1993. On March 31, Attorney Pantoga asked the
court to continue the trial date for another week so that
he could review the resumes of the State’s experts and
obtain his own. The trial court granted the request, and
at the final pretrial conference on April 14, Attorney
Pantoga made no mention of an expert. No further
requests for a continuance were made, and the trial
commenced, as scheduled, on May 3, 1993.
At trial, Dr. Glimp testified to his observations when
Quincy arrived at the emergency room, and Sergeant
Shipley and Detective Meadie told of their interview
with Ellison and recounted his statements to them. Dr.
Jeffrey Jentzen, the forensic pathologist who performed
the autopsy on Quincy, also described his findings.
Dr. Jentzen noted there were bruises on the right and
left cheeks, and a scabbed-over quarter-inch laceration
on the back of Quincy’s head. Four of Quincy’s right
ribs showed healing fractures that were three to four
weeks old. He also noted that there were recent rib frac-
6 No. 08-2977
tures on both the left and right sides, with the left-side
fractures on the back. He opined that the recent
fractures occurred within a few days of Quincy’s death.
Quincy also had a depressed skull fracture and multiple
blood clots in his skull. The corpus callosum, which is the
band of tissue connecting the right and left halves of the
brain, had been lacerated, and each of Quincy’s eyes
had multiple hemorrhages. Quincy had a large blood clot
near his spinal cord, corresponding to the fractured ribs
on his left side. With the exception of the old rib fractures
and the scalp laceration, Dr. Jentzen opined that all
of Quincy’s injuries occurred at the same time.
Based on his examination, Dr. Jentzen concluded that
Quincy died as a result of shaken infant syndrome.
Dr. Jentzen explained that shaken infant syndrome
refers to “a group of findings or injuries that occur when
a child is violently shaken.” According to Dr. Jentzen,
the child is typically grasped in the chest area and
the ribs next to the spine fracture from the pressure of
squeezing the child. Because an infant’s bones are more
elastic than those of an adult, “a large amount of force”
was needed to fracture them. The blood clots in the
skull are the result of the child’s brain violently striking
the inside of his skull as he is shaken back and forth, a
sort of “whiplash phenomenon” that occurs because the
child’s neck muscles are not sufficiently developed to
support his head while he is being shaken. The corpus
callosum, ruptures when the brain twists and turns,
and the supporting structures can no longer support
the brain. Dr. Jentzen testified that this type of rupture
typically also occurs in motor vehicle accidents and
No. 08-2977 7
falls from great heights. Hemorrhages in the eyes occur
when the shaking causes the blood vessels in the eyes to
separate. Death occurs when the injured brain tissue
swells.
According to Dr. Jentzen, Quincy would have had to
have been “violently shaken” to cause the injuries he
observed. Based on his experience in such cases and
discussions with colleagues, Dr. Jentzen stated that indi-
viduals who cause such injuries “typically shake a child
until they describe their arms as being tired.” Given the
nature and extent of the more recent injuries he
observed, Dr. Jentzen also thought that the person who
caused them “would have had to have known that the
child was severely injured. The child would most probably
have been comatose or semi-comatose, there would have
been irritability, there would have been evidence of
injury.”
In addition to these witnesses, each of the adults
who were present in the apartment when Quincy
stopped breathing testified to the events leading up to his
death. Jacqueline King, Quincy’s mother, testified that
the night before her son died she was sleeping with
Ellison in his bedroom, while Quincy slept on a pallet on
the floor next to Ellison. Between three and four o’clock
in the morning, Quincy began to “holler” and would not
go back to sleep. Ellison offered him a bottle and
pacifier, but the child wouldn’t take them. In King’s
words, Ellison “turned over and he did a little shove like,
‘shut up, boy. I got to go to sleep.’ ” Quincy quieted
down, but started up again “as soon as Lorenzo stopped
8 No. 08-2977
shaking him . . . .” At that point, King testified that she
got out of bed and sat on the floor with Quincy until
he went to sleep.
When Quincy woke up the following morning, King
testified that he appeared normal to her. Sometime
around 11:30 a.m. Ellison and Smith began tossing
Quincy in the air and letting him fall onto the bed. Quincy
looked “scared” and was “whining,” and King asked
them to stop, but they did not. King then went into the
bathroom to change her three-year-old daughter’s
clothes because she had wet herself. While she was in
the bathroom, King, who was deaf in one ear and had
the water running, was unable to hear what was going
on in the bedroom. When she returned to the bedroom,
Smith told her Quincy was not breathing. Smith began
performing CPR, and Ellison called the rescue squad.
King also testified that she had previously observed
Ellison and Smith tossing Quincy and had told them to
stop because they could hurt him. Ellison, on one
occasion, replied that he would not hurt Quincy because
“he cared for him like he’s his own.” About two weeks
prior to Quincy’s death, King stated she saw Ellison
shaking and punching Quincy in the chest with his fists.
King testified that when she asked Ellison to stop, he
replied that he was not hitting Quincy hard enough to
hurt him, and that he was hitting the baby to “make
him tough.”
Smith, who was called by the defense, also denied he
was in the bedroom when Quincy stopped breathing.
Smith testified that he left the apartment earlier that
No. 08-2977 9
morning and arrived back at approximately 11:30 a.m.
He admitted that he was bouncing the child on the bed
with Ellison when he first entered the apartment, but
then left the bedroom to take off his coat. When he left
the room, Smith stated that Quincy seemed fine. When he
came back about five minutes later, Quincy was not
breathing. On cross-examination, Smith added that after
he left the bedroom, he heard the baby crying and
Ellison say “shut up” a few times. Then “it got silent.”
Finally, Ellison testified on his own behalf. At one
point, he said that all three of the adults were in the
bedroom when Quincy suddenly blacked out. Yet, he also
said that Smith told King that Quincy stopped breathing
when she returned from the bathroom. Notwithstanding
his two statements to police, Ellison also denied that he
had ever shaken Quincy. He claimed police had
pressured him into signing the typewritten statement
and then into writing the other statement, using the first
as a model. Ellison also claimed that while he was
present, no one shook the baby.
The jury was instructed on both first-degree murder
and the lesser-included offense of involuntary mans-
laughter. Toward the end of his closing argument, the
prosecutor addressed the question of Ellison’s mental
state, stating:
. . . the issue is the mental state of the defendant at the
time the acts were performed that killed the child, not
the mental states in the past by Jacqueline King, not
by Roberto Smith. These people are not on trial here
today. What we have here is one defendant on trial.
10 No. 08-2977
If those other people had caused the death of this
child, if they had shaken this child so hard that he
died, they would be on trial with the defendant.
Counsel for Ellison objected, and the trial court sustained
the objection. The prosecutor continued: “They did not
commit any acts to kill this child. They did not do any
acts to cause the death of this child. He did.” Counsel
again objected, but this time the trial court overruled
the objection.
No request was made either for a mistrial or a
curative instruction. The attorneys completed their
closing arguments, and the jury retired for its delibera-
tions. Upon completion of its deliberations, the jury
returned a verdict finding Ellison guilty of first-degree
murder. Ellison was sentenced to sixty years in prison
on June 4, 1993.
Ellison appealed his conviction claiming, inter alia, that
his trial counsel was ineffective for failing to investigate
and obtain an expert witness to testify on shaken
infant syndrome. The Illinois Appellate Court, Second
District, rejected the claim because Ellison had made no
showing that an expert could have offered any testimony
that would have helped the defense. The Illinois
Supreme Court denied Ellison’s petition for leave to
appeal on June 5, 1996.
Ellison next filed a pro se state petition for post-convic-
tion relief in which he claimed that he had been denied
due process and a fair trial by the prosecutor’s allegedly
prejudicial and inflammatory statements during closing
arguments. The post-conviction court appointed counsel
No. 08-2977 11
to represent Ellison, and counsel filed an amended
petition that incorporated this ground, and additionally
repeated the argument that trial counsel was ineffective
for failing to present expert testimony on the issue of
shaken infant syndrome. The amended petition was
supported by an affidavit of Dr. Stephen Lazoritz, which
states in relevant part:
It is my opinion, within reasonable medical certainty,
that the exact force needed to injure or kill an infant
by shaking, though very great, is not exactly known.
The statement that the perpetrator would have had
to shake the infant until his arms were exhausted is
purely speculative. The exact number of shakes re-
quired or the time required has not been determined,
only the fact it requires a great force.
The court held an evidentiary hearing on the ineffective
assistance of counsel issue on March 27, 2000, but Ellison
was the only witness; neither Dr. Lazoritz nor Attorney
Pantoga testified. Ellison testified that both Attorney
Vishny and Attorney Pantoga told him it would be neces-
sary to hire an expert witness and asked his family
for money to hire an expert. He testified that Attorney
Pantoga never consulted with or hired an expert, but
claimed that Attorney Pantoga did ask the trial court
for additional time to retain one. According to Ellison,
the court refused his request.
The court denied Ellison’s petition for post-conviction
relief in a written decision issued on December 15, 2000. As
to the claim that his trial attorney was ineffective for
failing to retain and call an expert, the court found that
12 No. 08-2977
Ellison had still not offered any evidence that an expert
would have helped the defense. The court recognized
that, according to his affidavit, Dr. Lazoritz thought
Dr. Jentzen’s statement that the perpetrator shook the
child until his arms were tired was purely speculative.
The court noted, however, that this testimony came at
the end of Dr. Jentzen’s direct examination. Dr. Jentzen
had stated that based on his experience and discussions
with his colleagues, it seemed to him that individuals
will typically shake a child “until they describe their
arms being tired.” He was then asked the following
leading question: “So what you are telling us, Doctor, is
that this baby was shaken until the person who was
shaking him, his arms hurt, and that’s what stopped
him from shaking this baby?” Defense counsel did not
object, and Dr. Jentzen responded, “Probably.”
In denying the petition, the court concluded that
Dr. Lazoritz’s affidavit “in no way refutes” Dr. Jentzen’s
opinion “that the child ‘was violently shaken.’ ” In fact,
the court concluded that Dr. Lazoritz’s affidavit “actually
supports the State’s case further with his opinion
that it requires ‘great force’ to kill or injure an infant by
shaking.” The court also concluded that even if an objec-
tion had been made and sustained to the challenged
testimony, or an expert had been called to refute it, it
would not have changed the result. “That testimony did
not alter the underlying testimony of Dr. Jentzen as to
his opinion concerning the cause of death, the
observable injuries, the nature of shaken baby syndrome,
and the force necessary to kill or injure an infant by
shaking.”
No. 08-2977 13
As to Ellison’s claim that his due process rights were
violated by the prosecutor’s improper statements during
closing argument, the court held that “the closing argu-
ment comments were adequately dealt with by the trial
judge and even if some of them were improper, they
would not have affected the result or prejudiced the
defendant to such an extent that a new trial would be
required.”
A new attorney was appointed to represent Ellison on
the state post-conviction appeal, but moved to with-
draw pursuant to Anders v. California, 386 U.S. 738 (1967),
on the ground that there was no claim that merited
review. As to the ineffective assistance claim, counsel
noted that Dr. Lazoritz’s affidavit did not state that he
would have been available to testify at Ellison’s trial, and
in any event, Dr. Lazoritz did not dispute Dr. Jentzen’s
testimony that it took “great force” to kill an infant by
shaking him, only the length of time it would take. As to
the due process claim, counsel stated that the
prosecutor’s statements during closing argument were
“fair comments.” The Illinois Appellate Court granted
the motion to withdraw, stating there were no
meritorious issues that would support an appeal, and
affirmed the order denying Ellison’s petition for post-
conviction relief. The Illinois Supreme Court denied his
petition for leave to appeal.
Ellison then filed his petition for federal habeas relief
under 28 U.S.C. § 2254, in which he raised numerous
issues in addition to those certified to this court for
appeal. By decision dated June 13, 2008, the district court
14 No. 08-2977
denied the petition. In denying his claim of ineffective
assistance of counsel, the district court concluded that
Ellison had failed to show that an expert would have
been available at the time of the trial who would con-
tradict the prosecution expert’s testimony, or at least the
state court’s finding to that effect was not unreasonable.
As to the due process claim, the district court held that
Ellison had failed “to provide specific reasons or to cite
any precedent as to why these remarks were so
improper (and the Illinois courts’ rulings on them so
unreasonable) as to deny him due process.” This appeal
followed.
II. DISCUSSION
A. AEDPA Standard of Review
The Antiterrorism and Effective Death Penalty Act of
1996 (“AEDPA”) governs review of state court convic-
tions in federal habeas corpus proceedings. Under
AEDPA, a federal court may grant habeas relief only if
the state court’s decision “was contrary to, or involved
an unreasonable application of, clearly established
Federal law, as determined by the Supreme Court of the
United States” or “was based on an unreasonable deter-
mination of the facts in light of the evidence presented.”
28 U.S.C. § 2254(d); Williams v. Taylor, 529 U.S. 362, 376
(2000). A state court decision is “contrary to” federal law
if the state court either incorrectly laid out governing
United States Supreme Court precedent, or, having identi-
fied the correct rule of law, decided a case differently
than a materially factually indistinguishable Supreme
No. 08-2977 15
Court case. 28 U.S.C.A. § 2254(d)(1); Calloway v. Montgom-
ery, 512 F.3d 940, 943 (7th Cir. 2008). An “unreasonable
application” of United States Supreme Court precedent
occurs when a state court identifies the correct
governing legal rule but unreasonably applies it to the
facts of a case or if the state court either unreasonably
extends a legal principle from the Supreme Court’s prece-
dent to a new context in which it should not apply or
unreasonably refuses to extend that principle to a new
context in which it should apply. 28 U.S.C.A. § 2254(d)(1);
Muth v. Frank, 412 F.3d 808, 814 (7th Cir. 2005). We
review de novo the district court’s denial of a habeas
petition. Southerland v. Gaetz, 581 F.3d 614, 616 (7th Cir.
2009) (citing Ben-Yisrayl v. Buss, 540 F.3d 542, 546 (7th Cir.
2008)).
B. Ineffective Assistance of Counsel
Ellison’s claim that the assistance provided by his trial
counsel fell below Sixth Amendment standards is
governed by the familiar two-part test “clearly estab-
lished” by the Supreme Court in Strickland v. Washington:
First, the defendant must show that counsel’s perfor-
mance was deficient. This requires showing that
counsel made errors so serious that counsel was not
functioning as the “counsel” guaranteed the
defendant by the Sixth Amendment. Second, the
defendant must show that the deficient performance
prejudiced the defense. This requires showing that
counsel’s errors were so serious as to deprive the
defendant of a fair trial, a trial whose result is reliable.
16 No. 08-2977
Unless a defendant makes both showings, it cannot
be said that the conviction or death sentence
resulted from a breakdown in the adversary process
that renders the result unreliable.
466 U.S. 668, 687 (1984).
Even before AEDPA was enacted, the Court cautioned
that, in applying this test, “[j]udicial scrutiny of counsel’s
performance must be highly deferential.” Id. at 689. “[A]
court must indulge a strong presumption that counsel’s
conduct falls within the wide range of reasonable profes-
sional assistance.” Id. Post AEDPA, the bar is even
higher. See Holman v. Gilmore, 126 F.3d 876, 881 (7th Cir.
1997) (“Strickland builds in an element of deference to
counsel’s choices in conducting the litigation; § 2254(d)(1)
adds a layer of respect for a state court’s application of
the legal standard.”).
Likewise with respect to the prejudice prong of the
Strickland analysis, on direct review a defendant must
show that he was prejudiced by counsel’s deficient perfor-
mance, i.e., he must show that there is a “reasonable
probability that, but for counsel’s unprofessional errors,
the result of the proceeding would have been different.”
Strickland, 466 U.S. at 694. On federal habeas review,
however, the question is whether the state court’s deter-
mination that such a probability does not exist is rea-
sonable. Barrow v. Uchtman, 398 F.3d 597, 605-06 (7th Cir.
2005).
Ellison argues that the state court misapplied Strickland
in denying his motion for post-conviction relief. His
No. 08-2977 17
attorney “failed to call an expert to rebut key testimony
at his trial,” he contends, “not because he did not
believe one was necessary or because one was not avail-
able, but because, in an overly rushed pre-trial process,
he failed to make an investigation, and he misunder-
stood his ability to rebut the state’s expert in alternative
ways.” Brief of Petitioner-Appellant at 31. Expert testi-
mony as to the force needed to kill a child by shaking
him was essential to his defense, Ellison maintains. The
state court’s decision to the contrary was an unrea-
sonable application of clearly established law. Id.The record does not support Ellison’s contention that
Attorney Pantoga failed to call an expert because he
did not understand the potential benefit of a defense
expert or how to go about retaining one for an indigent
client.3 Nor does it support the suggestion that he was
prevented from doing so by “an overly rushed pre-trial
process.” Ellison did not call Attorney Pantoga as a
witness at the hearing on his petition for post-conviction
relief, so the record does not contain his explanation.
3
Attorney Vishny’s understanding of his obligations is not
at issue since he was replaced by Attorney Pantoga before
trial. As noted above, however, before he was replaced by
Attorney Pantoga, the trial court explained to Attorney Vishny
that his ability to retain an expert was not dependent on the
resources of his client or his family. Moreover, prior to being
replaced, Attorney Vishny filed a petition to have his client
declared indigent. There is no reason to believe that Attorney
Pantoga was not similarly aware of Ellison’s right to retain
an expert, if he thought one was necessary, at public expense.
18 No. 08-2977
What the record does reflect is that Attorney Pantoga
said he intended to retain an expert and even requested
a brief adjournment of the trial to allow time for him to
do so. The trial court granted his request, and Attorney
Pantoga never raised the issue again. This is hardly
evidence that he failed to investigate or did not under-
stand how an expert might help.
Of course, even if the failure to call an expert was not
due to the attorney’s ignorance or the trial court’s insis-
tence on an early trial, such failure may still constitute
ineffective assistance. If the need for an expert was clear
and one was reasonably available, counsel should at
least consult with one. See Miller v. Anderson, 255 F.3d
455, 459 (7th Cir. 2001) (“[I]n the circumstances (an essen-
tial qualification), there was also no excuse for the
lawyer’s failure to consult experts on hair, DNA,
treadmarks, and footprints.”). By itself, however, the
absence of a defense expert is not sufficient to establish
that counsel’s performance was deficient. For counsel’s
performance to be found deficient, the defendant must
demonstrate that an expert capable of supporting the
defense was reasonably available at the time of trial. The
state court concluded that Ellison had failed to make
such a showing. The question we must decide is
whether the state court’s conclusion was unreasonable.
The only evidence Ellison offered in support of his
claim that such an expert was available was the affidavit
of Dr. Lazoritz, signed more than six years after the
trial, which disputed Dr. Jentzen’s testimony that Ellison
had probably shaken Quincy until his arms were tired.
No. 08-2977 19
Ellison’s Amended Petition for Post-Conviction Relief
states that Dr. Jentzen’s testimony in this regard “is
contrary to the opinions of the medical community in
the area of Shaken Baby Syndrome today as expressed in
Dr. Lazoritz’s affidavit.” (italics added). On its face,
this evidence is insufficient to show that an expert
capable of refuting Dr. Jentzen’s testimony was available
in May 1993. Even aside from the date of the affidavit,
however, the state court concluded that the proffered
evidence did not show that Attorney Pantoga’s failure
to call an expert amounted to ineffective assistance. The
plain fact recognized by the court is that on the central
question of the degree of force that would be needed to
kill or even injure a child by shaking him, Dr. Lazoritz
was in agreement with Dr. Jentzen—“very great” force was
needed. Why call an expert to emphasize the key point the
prosecution wanted to convey to the jury?
Of course, we recognize that the aspect of Dr. Jentzen’s
testimony on which Ellison claims an expert could
have provided assistance is not on the degree of force
needed to cause Quincy’s death, but the amount of effort
the perpetrator would have had to exert. It is Dr. Jentzen’s
testimony that people who shake infants to death
typically continue shaking until their arms are tired that
Ellison contends an expert could have refuted. But this
testimony was simply Dr. Jentzen’s picturesque, and
likely inadmissible, way of conveying his central point,
namely, that it took a lot of force to shake the child
enough to cause the injuries he observed, a point with
20 No. 08-2977
which Dr. Lazoritz was in full agreement.4 There is no
evidence that prior to trial, when Attorney Pantoga
presumably considered the possibility of retaining an
expert, he had any reason to believe the prosecution
would offer such testimony at trial. Under these circum-
stances, the state court’s determination that the failure
to retain an expert witness did not constitute deficient
performance of counsel’s duty to effectively represent
his client was a reasonable application of Strickland.
The same is true of the state court’s determination
that Ellison suffered no prejudice from his attorney’s
failure to call an expert to refute the challenged testi-
mony. The jury was instructed that “a person commits
the offense of first-degree murder when he kills an indi-
vidual without lawful justification if, in performing the
acts which caused the death, he knows that such acts
create a strong probability of great bodily harm to that
individual.” See Ill. Rev. Stat. 1991 ch. 38, par. 9-1, now
codified at 720 Ill. Comp. Stat. 5/9-1. Thus, in order to find
4
The precise testimony at issue is likely inadmissible because
it is vague and without foundation. The amount of shaking
needed to tire a perpetrator’s arms obviously varies, depending
on the physical condition of the perpetrator. It is hardly a
standard that could be considered scientifically established.
See People v. Mehlberg, 618 N.E.2d 1168, 1190-91 (Ill. App. 1993)
(noting that Illinois follows the Frye test, under which
scientific evidence is not admissible unless technique has
gained acceptance within relevant scientific community). There
is also no indication of how many perpetrators have con-
fessed their feelings of fatigue to Dr. Jentzen and his colleagues.
No. 08-2977 21
Ellison guilty, the jury had to have first found that he
performed the acts that caused Quincy’s death, and the
only remaining question would have been whether he
knew his acts created a strong probability of great
bodily harm to Quincy. Dr. Jentzen testified that in
order to cause the injuries he observed, the child must
have been “violently shaken.” Even Dr. Lazoritz believed
that the amount of force needed to injure or kill an
infant by shaking was “very great” and Ellison himself
admitted that he knew that Quincy was “so fragile” and
“could be hurt easily.” Thus, Ellison’s defense rested on
the proposition that he did not know that shaking a
fragile four-month-old infant “violently” or “with great
force” would create a strong probability of great bodily
harm. In light of the evidence and given the mens rea
element of the crime, we cannot say that the state court’s
determination that a defense expert would not have
changed the result constitutes an unreasonable applica-
tion of Strickland. We therefore affirm the district court’s
decision denying Ellison’s petition based on ineffective
assistance of counsel.
C. Due Process
Ellison also claims that a portion of the state
prosecutor’s closing argument was so improper as to
constitute a violation of his Fourteenth Amendment
right to due process of law. Ellison contends that the
prosecutor argued in his closing that he was guilty of first-
degree murder based on the mere fact that he was
charged with the crime. He also contends that the pros-
ecutor expressed his personal opinion about his guilt.
22 No. 08-2977
Under the circumstances of this case, Ellison argues,
these comments deprived him of a fair trial and due
process of law. The state court’s conclusion to the
contrary, he contends, constitutes an unreasonable ap-
plication of the Supreme Court’s decision in Darden
v. Wainright, 477 U.S. 168 (1986).
Darden established a two-prong test for determining
whether a prosecutors’ comments in closing argument
constitute a denial of due process. Id. at 181; Bartlett v.
Battaglia, 453 F.3d 796, 800 (7th Cir. 2006). The court must
first look to the challenged comments to determine
whether they were improper. If the comments were
improper, the court must consider a number of factors
to determine whether the defendant was prejudiced by
the comments. Ruvalcaba v. Chandler, 416 F.3d 555, 565
(7th Cir. 2005). Among the factors to be considered by
the court in deciding whether the defendant was preju-
diced by the comments are: “(1) whether the prosecutor
misstated the evidence, (2) whether the remarks
implicate specific rights of the accused, (3) whether the
defense invited the response, (4) the trial court’s instruc-
tions, (5) the weight of the evidence against the
defendant, and (6) the defendant’s opportunity to rebut.”
Howard v. Gramley, 225 F.3d 784, 793 (7th Cir. 2000). In
determining whether the prosecutors’ remarks were
prejudicial, however, “it is not enough that the prosecu-
tors’ remarks were undesirable or even universally con-
demned. The relevant question is whether the prosecu-
tors’ comments so infected the trial with unfairness as
to make the resulting conviction a denial of due pro-
cess.” Darden, 477 U.S. at 181 (internal quotations and
citations omitted).
No. 08-2977 23
In our view, the state court’s decision rejecting Ellison’s
claim was not an unreasonable application of Darden.
Viewed in context, it is not even clear the remarks of
the prosecutor were improper. Even if they were
improper, however, the state court reasonably
determined that they were not so egregious as to
deprive Ellison of due process.
In assessing the meaning and intent of the prosecutor’s
remarks, it is first necessary to place them in context.
Ellison’s primary defense was that he lacked the
requisite intent for first-degree murder. In his opening
statement, his attorney told the jury that the evidence
would show that Quincy’s “death was a result of
reckless, negligent acts by several named and unnamed
persons,” and that “all the adults in the house at that
time were neglectful of this baby’s frailty, by the rough
play or by the total stupidity.” It was this suggestion
that Ellison was no more culpable than King and Smith,
and that all had acted without intent to harm the child,
that the prosecutor was attempting to address when
Attorney Pantoga objected. The pertinent portion of the
transcript reads:
[Prosecutor]: This is not a case about recklessness.
There were reckless acts before this baby died cer-
tainly. But the issue is the mental state of the defendant
at the time the acts were performed that killed
the child, not the mental states in the past by Jacque-
line King, not by Roberto Smith. These people are not
on trial here today. What we have here is one defen-
dant on trial. If those other people had caused
24 No. 08-2977
the death of this child, if they had shaken this child so
hard that he died, they would be on trial with the
defendant.
[Mr. Pantoga]: Objection.
[Prosecutor]: But they didn’t do so.
[The Court]: Sustained.
[Prosecutor]: They did not commit any acts to kill
this child. They did not do any acts to cause the
death of this child. He did.
[Mr. Pantoga]: Objection, Judge.
[The Court]: Overruled.
[Prosecutor]: He did. And that’s why he’s on trial here.
This was a voluntary act on his part, not some involun-
tary act where he didn’t know what he was doing.
Viewed in context, it is clear that the prosecutor was not
arguing that Ellison was guilty because he was charged.
Instead, he was trying to make the point that it was
Ellison’s mental state that was at issue in the case, not
Smith’s or King’s, because it was Ellison’s actions that, in
the view of the prosecution, caused Quincy’s death. The
prosecutor was telling the jury that it was to deter-
mine Ellison’s state of mind, his intent, while he was
shaking Quincy. Unlike Ellison, neither Smith nor King
had admitted to shaking the child, the undisputed cause
of death, and thus neither had been charged with the
crime. They were not accused of having taken the
actions that caused Quincy’s death, and thus their
intent was irrelevant. This was apparently why Ellison’s
No. 08-2977 25
previous appellate counsel reported in his Anders brief
to the Illinois Appellate Court that the prosecutor’s re-
marks were “fair comment on the evidence.”
Because the prosecutor’s argument was unclear and
arguably susceptible to the improper meaning Ellison
has attached to it, the trial judge nevertheless sustained
the objection Attorney Pantoga interposed. Thus, to the
extent that the jurors may have understood the prosecu-
tor’s remarks as implying that Ellison was guilty simply
because he had been charged with a crime, the trial
judge’s ruling on the objection alerted them that the
statement should be ignored, just as any question to
which an objection was sustained should be ignored. See
Clark v. Fike, 538 F.2d 750, 759 (7th Cir. 1976) (“Although
it is always improper for the prosecution to suggest that
a defendant is guilty from the mere fact that he is being
prosecuted, in this context with part of the comment
stricken and the other part made in response to
defense assertions, we cannot say that the comment
deprived the petitioner of a fair trial.”). The jury was
also instructed that the indictment charging the
defendant with a crime was not evidence against the
defendant and did not create any inference of guilt,
that the defendant was presumed to be innocent of the
charges against him, and that the opening statements
and closing arguments of the attorneys were not evi-
dence. These instructions would likewise have disabused
the jury of any confusion the prosecutor’s comments may
have caused.
We also note that even though counsel had not asked
for a curative instruction on the issue, the prosecutor in
26 No. 08-2977
essence provided such an instruction himself. Immedi-
ately following the comments quoted above, the
prosecutor continued:
Yes, this defendant, like all defendants in all cases, is
presumed to be innocent of the charge, and it’s our
burden to prove him guilty. We have accepted that
burden from the beginning of the case because he is
guilty. If you look at him, you think about that pre-
sumption of innocence he has. Just look at him and
think about that presumption of innocence. And when
you look at him, think about that presumption of
innocence, also look at him and think about having
a baby in his hands. And think about him being mad
at that baby, and think about him starting to shake
that baby, and shake it and shake it, and saying
“shut up, shut up.” Is he still innocent as he sits
there, if you think about him with that baby in his
hands? No, he’s not innocent. And it’s not me that
says he’s not innocent, it’s not me that says he’s
guilty; it’s the evidence that points at Lorenzo
Ellison that says he’s guilty. And for that reason I ask
you to find him guilty of this crime.
In other words, the prosecutor made clear to the jury that
he was not arguing that Ellison was guilty because he
had been charged, but because the evidence proved his
guilt.
Finally, to the extent the potential confusion caused
by the prosecutor’s remarks remained even after the
court’s ruling and instructions, Ellison’s counsel had an
adequate opportunity during his rebuttal argument to
No. 08-2977 27
counter them. The fact that he did not even address
them suggests that he understood by that time that the
argument was neither misleading nor improper. Under
these circumstances and considering the evidence
against him, the state court did not unreasonably apply
Darden in rejecting Ellison’s claim that the prosecutor
had violated his due process rights by improperly
arguing that he was guilty merely because he was
charged with a crime.
The last-quoted comments also belie Ellison’s conten-
tion that the prosecutor improperly asserted his personal
opinion of Ellison’s guilt, as opposed to his view of what
the evidence established. It is, of course, improper for a
prosecutor, or a defense attorney for that matter, to inter-
ject his or her personal opinion of the defendant’s guilt.
United States v. Young, 470 U.S. 1, 17 (1985). Although
the line between what an attorney submits the
evidence establishes and what he personally thinks of
the guilt of the defendant may sometimes seem
artificial, the rule is both “elemental and fundamental.”
Greenberg v. United States, 280 F.2d 472, 475, n. 4 (1st Cir.
1960), quoted in United States v. Wasko, 473 F.2d 1282,
1284 (7th Cir. 1972). The purpose of the rule is to insure
that the jury will base its verdict on the force of the evi-
dence and not the personal opinion of an attorney or
his office, and to avoid any suggestion that the attorney
has “insider knowledge” of the case. Wasko, 473 F.2d at
1283-84. Here, there was no appeal to the prosecutor’s
personal opinion; to the contrary, he urged the jury to
find the defendant guilty because the evidence “says
he’s guilty.” “We decline to adopt the defendant’s
28 No. 08-2977
curious view that it is improper for the prosecutor to
argue to the jury that a defendant is guilty.” United States
v. Auerbach, 913 F.2d 407, 418 (7th Cir. 1990).
III. CONCLUSION
The record does not support Ellison’s contention that
the Illinois courts unreasonably applied clearly estab-
lished federal law in rejecting either of his claims. Ac-
cordingly, the district court’s decision denying his
petition for a writ of habeas corpus is A FFIRMED. We
thank Attorneys Jacqueline F. Gharapour and Lindsey
Beyer for their service as court-appointed counsel for
Appellant-Petitioner on this appeal.
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