Tommy Clark v. Jacqueline Lashbrook

In the
United States Court of Appeals
For the Seventh Circuit
No. 17-2212
TOMMY CLARK,
Petitioner-Appellant,
v.
JACQUELINE LASHBROOK,
Respondent-Appellee.
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 14 C 03936 — John J. Tharp, Jr., Judge.
ARGUED SEPTEMBER 14, 2018 — DECIDED OCTOBER 17, 2018
Before BAUER, HAMILTON, and SCUDDER, Circuit Judges.
BAUER, Circuit Judge. In 1999, petitioner-appellant Thomas
Clark was convicted of two counts of first-degree murder and
one count of robbery. The Illinois Appellate Court affirmed his
conviction. Clark filed a petition for writ of habeas corpus
under 28 U.S.C. § 2254. The district court denied the petition.
We affirm.
2 No. 17-2212
I. BACKGROUND
In November 1997, Thomas Clark, Amos Chairs, and Traye
Booker were charged with the robbery and murder of Kevin
Martin and Julio Meza at Johnny’s Club, a bar owned by
Martin. The theory of the prosecution was that Chairs, Clark,
and Booker, all members of the Gangster Disciples street gang,
agreed to steal marijuana from Martin and Meza. With no
direct evidence of who killed Martin and Meza, the prosecu-
tion sought to prove the murders occurred during the course
of the robbery, and presented circumstantial evidence showing
Clark was in the back room of Johnny’s Club where the
murders took place and participated in the robbery.
Key testimony was provided by Stacy Lynn Jones, who was
dating Chairs at the time of the murders. She testified that
Chairs was a “Governor” within the Gangster Disciples and
Clark was his “Assistant Governor.” In August 1997, Jones
was present when Chairs told Clark of the plan to steal the
marijuana. One week later, Jones and Clark waited in a car
while Chairs went inside a bar on 59th and San Francisco to
meet Martin. Chairs returned and said that Martin was not
there, but Meza was with a kilo of cocaine. Chairs concocted a
plan to steal the cocaine, by deceiving Meza with a bankroll
imitating thirty thousand dollars. The plan was abandoned
because they did not have enough cash to create a convincing
bankroll. Jones offered no testimony that Clark verbally
responded to either of Chairs’ plans.
A few days later, on August 21, 1997, Chairs and Jones
picked up Clark. Chairs explained to Jones that he was going
to drop her off and that “we are going to take the bud from the
No. 17-2212 3
Mexican and Kevin.” Shortly thereafter, Jones exited the
vehicle, and Clark took her place in the front passenger seat.
When Chairs returned to pick Jones up, he told her that the
“Mexican” had refused to give up the drugs, but that “folks
took care of it.”
Also important to the prosecution was the testimony of
Tanya Robinson, a bartender who occasionally worked at
Johnny’s Club. Robinson testified that she was drinking at the
bar on August 21, 1997, at around 7:00 p.m., when she noticed
Clark, Chairs, Booker, and Martin were talking. Robinson then
exited the bar and walked to a friend’s house nearby. When
she returned to the bar, the front door was locked. She knocked
on the door and observed Clark, Chairs, and Booker sitting at
the bar. They got up and walked towards the bedroom in the
back of the bar. Martin unlocked the door and let Robinson in,
then turned the volume on the jukebox up and proceeded to
the bedroom himself. Robinson then testified that later when
she went to the restroom adjacent to the bedroom she heard
Chairs say “Where’s the stuff at, where’s the shit at?” A voice
with a Mexican accent, Meza, then begged “please don’t do
this, please don’t do this.” Robinson testified that a voice she
did not recognize said “He knows where it’s at. He knows
where it’s at.” By eliminating the voices she recognized,
Robinson concluded the voice was likely Clark’s. Robinson
stated that she saw Booker leave the room and heard someone
else leave through the back door.
Booker threatened to kill Robinson if she told the police
anything. Nevertheless, Robinson identified Chairs and Booker
in a police lineup, and Clark in a photo array. All three were
arrested not long after.
4 No. 17-2212
Assistant State’s Attorney Patrick Kelly also testified. Kelly
interviewed Clark to see if he was willing to cooperate with the
investigation. Clark denied that he had ever been to Johnny’s
Club and claimed he was at his girlfriend Shawna’s house on
the day of the murders. Later, after being informed he would
be placed in a lineup, Clark divulged to Kelly that he had been
to Johnny’s Club three times, but that he and Chairs merely
drove past it the night of the murders. Following a short break,
Kelly informed Clark that Shawna did not support his alibi.
Clark replied “Shawn[a] is lying and everyone else is lying and
this is a conspiracy.”
In a joint trial, Chairs was convicted; Booker was acquitted
on all counts. In August 1999, Clark was tried separately, and
convicted. Clark was sentenced to seven years imprisonment
for the robbery, and life in prison without the possibility of
parole for the murders.
After an unsuccessful appeal in the Illinois state court,
Clark filed a petition for a writ of habeas corpus in the district
court arguing numerous grounds for relief. Clark has nar-
rowed the basis for his appeal to improper statements made by
the prosecutor during closing arguments. First, that the
prosecutor referred to Clark’s failure to testify and, second,
that Clark was deprived of the right to a fair trial when the
prosecutor introduced new facts in the rebuttal portion of his
closing argument.
II. DISCUSSION
The Antiterrorism and Effective Death Penalty Act of 1996,
codified at 28 U.S.C. § 2254, allows federal courts to grant a
writ of habeas corpus if a state court decision was (1) contrary
No. 17-2212 5
to, or an unreasonable application of, clearly established
federal law as determined by Supreme Court precedent; or
(2) rested on an unreasonable factual determination. 28 U.S.C.
§ 2254(d)(1)-(2). This standard is “difficult to meet” and
“highly deferential.” Makiel v. Butler, 782 F.3d 882, 896 (7th Cir.
2015) (quoting Cullen v. Pinholster, 563 U.S. 170 (2011)). We
review a district court’s denial of a habeas petition de novo.
Stechauner v. Smith, 852 F.3d 708, 714 (7th Cir. 2017).
A state-court decision involves an unreasonable application
of Supreme Court precedent under § 2254(d)(1) if (1) it cor-
rectly identifies the governing legal rule from Supreme Court
case law, but unreasonably applies it to the facts of the case;
(2) it unreasonably extends a legal principle from Supreme
Court precedent to a new context where it should not apply, or
(3) it unreasonably refuses to extend that principle to a new
context where it should apply. Williams v. Taylor, 529 U.S.
362, 407–08 (2000). Where Supreme Court cases “give no clear
answer to the question presented, let alone one in [the peti-
tioner's] favor,” it cannot be said that the state court unreason-
ably applied Supreme Court precedent and thus “relief is
unauthorized.” Wright v. Van Patten, 552 U.S. 120, 125–26
(2008).
A. Prosecutor’s Comment on Clark’s Failure to Testify
Clark agues that the government impermissibly shifted the
burden of proof to him by commenting on his failure to testify,
when the prosecutor stated the following:
He [Clark's counsel] wants you to find the
defendant not guilty because nobody saw
Tommy Clark go out around the back. Nobody
6 No. 17-2212
saw Tommy Clark around the back. Nobody
saw Tommy Clark come back out. Nobody saw
Tommy Clark come and take the money from
the cash register. No one saw that. Well, when
this defendant talked to the police, what did he
tell the police? He tells the police, I don't know
nothing about no murders. I don't know any-
thing about that. So then Assistant State's Attor-
ney Kelly talks to him a little bit longer, and we
come with up [sic] story with the girlfriend.
Well, that doesn't quite work, because we talked
to the girlfriend. Okay. Listen, Mr. Clark, you're
about to stand in a lineup. [objection overruled].
Facts. I want to talk to you about—you want to talk
about facts? I didn't hear one fact from this table over
here regarding a statement. (Emphasis added.)
This statement by the prosecutor was made in rebuttal to an
argument by Clark’s attorney that there was no direct evidence
about what Clark did in the bedroom where the victims were
found. Clark’s attorney implored the jury: “When you apply
the law, you have to apply facts with it, too. You have got to
apply facts, and if the facts aren't there, the law says that you
must find this man not guilty.”
Following the closing arguments, the trial court gave the
jury the following instruction: “The fact that the defendant did
not testify must not be considered by you in any way in
arriving at your verdict.”
To obtain relief, Clark must have a Supreme Court case to
support his claim, and that Supreme Court decision must have
No. 17-2212 7
clearly established the relevant principle as of the time of his
direct appeal. Yancey v. Gilmore, 113 F.3d 104, 105–07 (7th Cir.
1997). The case Clark relies upon most heavily is Griffin v.
California, 380 U.S. 609, 614 (1965), which held that “the Fifth
Amendment … forbids either comment by the prosecution on
the accused's silence or instructions by the court that such
silence is evidence of guilt” Id. at 615. After reciting numerous
questions lingering about what occurred the day of the
murder, the prosecutor in Griffin directly referred to the
defendant’s failure to testify stating: “These things he has not
seen fit to take the stand and deny or explain. And in the whole
world, if anybody would know, this defendant would know.
Essie Mae is dead, she can't tell you her side of the story. The
defendant won't.” Id. at 610–11. Furthermore, the trial judge
instructed the jury that it could draw adverse inferences from
the defendant’s silence, stating:
As to any evidence or facts against him which
the defendant can reasonably be expected to
deny or explain because of facts within his
knowledge, if he does not testify or if, though he
does testify, he fails to deny or explain such
evidence, the jury may take that failure into
consideration as tending to indicate the truth of
such evidence and as indicating that among the
inferences that may be reasonably drawn there
from those unfavorable to the defendant are the
more probable.
Id. The Supreme Court went on to note that the state court's
instructions had impermissibly shifted the burden of proof
8 No. 17-2212
onto the defendant and acted as “a penalty imposed by courts
for exercising a constitutional privilege.” Id. at 614.
The district court correctly held that Griffin was not
implicated by the facts here, because the prosecutor’s com-
ments, at most, indirectly referenced Clark’s refusal to testify.
See Yancey v. Gilmore, 113 F.3d 104, 107 (7th Cir. 1997) (“Griffin
involved only direct comment upon the accused's decision not
to testify.”); Diggs v. Hulick, 236 Fed. App'x 212, 215 (7th Cir.
2007) (Griffin “prohibited only ‘direct’ prosecutorial references
to the defendant's failure to testify; Griffin did not reach the
issue of whether a prosecutor may comment on the evidence
in such a way that indirectly refers to a defendant's silence.”);
and Freeman v. Lane, 962 F.2d 1252, 1260 (7th Cir. 1992)
(“Comments by the prosecutor on the state of the evidence that
may indirectly refer to the defendant's silence … have not been
the subject of direct Supreme Court guidance.”).
What Clark assumes is that the prosecution’s statement is
only susceptible to one meaning—that the defense put forth no
evidence because Clark failed to testify. However, in their
proper context, the prosecutor’s statement seems to refer to
two things. First, that while the prosecution was left with
circumstantial inculpatory evidence, the prosecution believed
the arguments advanced by the defense were weak and
unsupported by exculpatory evidence. Second, that Clark gave
inconsistent statements to ASA Kelly and Kelly’s testimony
went unchallenged during cross-examination.
Another contrast to Griffin, and buttressing the district
court holding, is the fact that the trial court here gave the jury
the correct instruction, that it must not consider Clark’s refusal
No. 17-2212 9
to testify as evidence of guilt. We “presume that juries follow
the court’s instructions.” Thomas v. Cook County Sheriff's Dep't,
604 F.3d 293, 311 (7th Cir. 2009).
The prosecutor’s statement did not invite the jury to
consider Clark’s decision to not testify as evidence of his guilt.
To the extent that any prejudice arose due to the ambiguous
nature of the statement, the clear jury instructions cured it. This
portion of Clark’s habeas petition was correctly denied.
B. Prosecutor’s Argument Concerning the Gangster
Disciples
During closing arguments, Clark’s attorney argued that the
prosecution had failed to prove beyond a reasonable doubt
that Clark had agreed to aid Chairs in the robbery scheme.
Clark’s attorney stated:
Agrees to aid. Where's the agreement? He didn't
say a word. Where's the agreement? Or attempts
to aid. Where's the attempt? What was the
attempt? What was the attempt to aid in the
commission of this crime, of the murder, of this
robbery? Where is it? Where's the attempt?
During his rebuttal argument, the prosecutor responded,
stating:
In this case, the rank was held by governor,
[Chairs]. His assistant governor was [Clark]. He
doesn't—the Gangster Disciple guys, like these
two, they don't sit around in front of Stacy
[Jones] and lay out the whole plans for 'em.
They are not stupid. It doesn't take that. It takes
10 No. 17-2212
a nod, a wink, jumping in the front seat, to know
you are going along with the plan. That's reality.
That's how the Gangster Disciples operate.
Clark's attorney objected, the trial judge overruled the
objection and the prosecutor continued:
You don't need that. You think … this Governor,
needed to hear every time he made an assertion
about how they were going to rob Kevin and the
Mexican? Do you think he needed to hear
[Clark] say, oh yeah, gov, I'm right with you,
let's go get the bud and the jewelry, and maybe
get the money. Of course not. That's nonsense.
That's not real life. It's not how it works. But he's
there, and he's agreeing with them, and more
importantly, when push comes to shove, when
it's August 21st, 1997, and when the gov makes
a declaration to his girlfriend that they are going
to go take the bud, he jumps in the front seat
and he's right there, ready to go.
Clark argues that these statements by the prosecutor
deprived him of his right to a fair trial by implying, without
admitted evidence or a chance for rebuttal, that the Gangster
Disciples entered into agreements with a “nod” or a “wink”
and that Clark winked or nodded to signal his agreement to
participate in the robbery.
The applicable “clearly established Federal law” here is set
forth in Darden v. Wainwright, 477 U.S. 168, 181 (1986), which
explained that “a prosecutor's improper comments will be held
to violate the Constitution only if they ‘so infected the trial
No. 17-2212 11
with unfairness as to make the resulting conviction a denial of
due process.’” Parker v. Matthews, 567 U.S. 37, 45 (2012) (citing
Darden). Darden instructed a reviewing court to make two
inquiries regarding prosecutorial statements: “1) Were the
prosecutor's statements improper; and 2) Was the defendant
prejudiced?” Bartlett v. Battaglia, 453 F.3d 796, 802 (7th Cir.
2006), citing Ruvalcaba v. Chandler, 416 F.3d 555, 565 (7th Cir.
2005).
Here, the state court decision relied only on the second
inquiry. Thus, the district court’s opinion was limited to
whether the prosecutor’s remarks were prejudicial. The court
must consider a number of factors to determine whether the
defendant was prejudiced by the comments: “(1) whether the
prosecutor misstated the evidence, (2) whether the remarks
implicate specific rights of the accused other than the right to
a fair trial, (3) whether the defense invited the response, (4) the
trial court's instructions, (5) the weight of the evidence against
the defendant, and (6) the defendant's opportunity to rebut.”
Ellison v. Acevedo, 593 F.3d 625, 636 (7th Cir. 2010).
Here, the prosecutor did not misstate the evidence. The
reference to a “nod” and a “wink” were examples of non-
verbal communication which can signal assent. There was no
suggestion by the prosecution that Clark winked or nodded.
These examples were given by the prosecutor to show their
similarity to an action Clark did take—getting into the front
seat of the car when Chairs told him it was time to commit the
robbery. Placed in their full context, these statements were not
an introduction of evidence of the procedures of the Gangster
Disciples. The prosecutor merely attempted to persuade the
12 No. 17-2212
jury that they could find an agreement in the absence of an
explicit, verbal confirmation.
Further, there was evidence as to how the Gangster
Disciples operate, by the testimony of Stacy Lynn Jones. Her
statements were evidence that Clark showed his agreement
with Chairs’ plans nonverbally, by getting in the front passen-
ger seat of the car to drive to Johnny’s Club.
The remaining factors all also weigh against Clark’s claim.
No specific right is implicated by the prosecutor’s purported
misstatement of the evidence, other than the right to a fair trial.
Clark invited the response, by arguing there was no evidence
that he agreed to participate in the robbery that led to the
murders.
The trial court’s instruction to the jury immediately
followed the state’s argument, and directed the jury that “the
evidence which you should consider consists only of the
testimony of the witnesses and exhibits which the Court has
received” and that:
Closing arguments are made by the attorneys to
discuss the facts and circumstances in the case,
and should be confined to the evidence and to
reasonable inferences to be drawn from the
evidence. Neither opening statements nor clos-
ing arguments are evidence, and any statement
or argument made by the attorneys which is not
based on the evidence should be disregarded.
The weight of the evidence presented was sufficient to
prove the state’s case against Clark, even in the absence of
No. 17-2212 13
the prosecutor’s comments. Jones’ testimony showed Clark’s
agreement to participate in the robbery. Robinson’s testimony
placed him in the room where the murders occurred as an
active participant in the robbery. The evidence showed Clark’s
agreement through his participation in Chairs’ plans, and no
prejudice resulted from the prosecutor’s argument that the
“Gangster Disciples” operate without explicit verbal agree-
ments.
Though Clark did not have a chance to rebut the closing
argument, the significance of the comments was not great and
the jury instructions counteracted any prejudice which may
have arose. Additionally, Clark did have a chance to rebut
Jones’ testimony, which the prosecutor’s rebuttal argument
was based on. He did not do so.
III. CONCLUSION
For the foregoing reasons, we AFFIRM the district court’s
denial of Clark’s petition.