John Stephan Parisie v. J. W. Greer, Warden Menard Correctional Center

671 F.2d 1011, 1982 U.S. App. LEXIS 21692

• Court: Court of Appeals for the Seventh Circuit
• Decided: February 18, 1982
• Docket: 80-1940
• Status: Published

Opinions

EAST, Senior District Judge:

THE APPEAL

The petitioner-appellant (Parisie) appeals the adverse summary judgment entered by the District Court on December 18, 1979 in his 28 U.S.C. § 2254 state prisoner habeas corpus proceedings. We note jurisdiction and reverse.

FACTS

Since the facts surrounding the tragedy of Jackson and Parisie are relatively unimportant to the appeal, we deem the following narration to be sufficient.

Jackson was seen leaving a scout meeting about 8:45 p. m. on Friday, April 12, 1968. About 10:45 p. m., a tow truck driver, on his way to pick up a car, found Jackson standing along a lonely country road outside the City of Springfield. Jackson said he had been shot, and he asked to be taken to a hospital. 'When Jackson was admitted to the hospital about 11:30 p. m., he had in his possession a money clip containing $210, a watch, and a masonic ring with a large stone which appeared to be a diamond. Jackson, after surgery, died the next morning.

On that same morning, at about 5:20 a. m., Parisie was found asleep in Jackson’s car located in Springfield. Parisie had Jackson’s driver’s license and a gasoline credit card in his wallet, and Jackson’s wallet was in Parisie’s coat pocket. Jackson’s wedding ring was found in a pocket of the decedent’s sports jacket, which was folded on the back seat of the car.

PROCEEDINGS IN THE ILLINOIS STATE COURTS

A grand jury returned an indictment to the Circuit Court for Sangamon County, Illinois (trial court) charging Parisie with the murder of “Chet” Jackson.¹ A trial jury found Parisie guilty of the alleged crime on January 17, 1969. On February 27,1969, the trial court sentenced Parisie to a prison term of forty to seventy years.

At this juncture, we note that prior to trial it was apparent to the trial court, the State, and friends of the deceased that Parisie in defense would claim that the deceased made homosexual advances toward him. At that time, a private attorney representing members of the decedent’s family presented a motion in limine seeking to prevent Parisie from characterizing the deceased as a homosexual. During an in-chambers hearing on November 14, 1968, the private attorney stated:

I represent the widow and three young children of the decedent. And the nature — I am informed and believe that the nature of the allegations will be devastating to the character and reputation of the decedent. They are untrue.. ..

Although the trial court recognized that evidence of “homosexuality can be very important” and “would be admissible,” it nevertheless entered an order prohibiting defense counsel from mentioning Jackson’s homosexuality “in public or in the triar (emphasis supplied).

During the first day of voir dire, the trial court asked some of the veniremen the following question:

There may be some evidence in this case of homosexuality. If the evidence should show any person whose name comes up during the trial of this case was involved in acts of homosexuality, would that fact alone create prejudice or sympathy for that person?²

However, the trial court then reversed itself and announced that it would no longer ask such a question “until it is shown that the defendant will be prejudiced.”

On the next day defense counsel moved for reconsideration of the ruling in light of the fact that there were three persons who could testify that they had had homosexual relations with Jackson, who knew his reputation in the community was that of a known homosexual and who had observed Jackson in known homosexual hangouts holding hands with other males. The motion was denied without comment.

None of the twelve jurors chosen were asked about their views on homosexuality.

The Illinois Appellate Court affirmed the conviction on June 26, 1972, People v. Parisie, 5 Ill.App.3d 1009, 287 N.E.2d 310 (1972). Attempts to secure review by the Illinois Supreme Court and through post-conviction relief proceedings were denied.

Parisie has been incarcerated since his arrest on April 13, 1968 and is currently an inmate at Menard Correctional Center in Menard, Illinois.

PROCEEDINGS IN THE DISTRICT COURT

Parisie filed his pro se § 2254 habeas corpus proceedings in the District Court on April 3, 1979, together with supporting memoranda. On April 30, 1979, the State of Illinois, through its Attorney General, moved to dismiss the petition and cause and/or for summary judgment in its favor.

On December 13,1979, the District Court, without holding an evidentiary hearing or reviewing the state court record, entered summary judgment against Parisie. On May 6,1980, Parisie’s motion for reconsideration was denied. An appropriate notice of appeal was filed on June 2, 1980, and on June 26, the District Court issued its certificate of probable cause for the appeal as required by 28 U.S.C. § 2253.

PRIOR PROCEEDINGS IN THIS COURT

On July 23, 1980, Parisie filed his pro se brief for appellant and petitioned for the appointment of appeal counsel. This court on August 18, 1980 denied the State of Illinois’ motion for dismissal of the appeal for want of a timely notice of appeal, and on September 4, 1980 appointed legal counsel with leave to file supplemental briefing.

ISSUES ON REVIEW

Parisie presents the following issues:

1. Whether Parisie was deprived of an impartial jury:

(a) as a result of massive pretrial publicity; and

(b) when the trial court precluded him from questioning prospective jurors about bias or prejudice against homosexuality on the part of either the deceased or himself.

2. Whether Parisie was deprived of his Sixth Amendment right to present a defense when the trial court refused to allow three crucial defense witnesses to testify.

3. Whether the prosecutor’s admittedly improper tactics violated Parisie’s Fourteenth Amendment due process rights.

4. Whether Parisie was deprived of effective assistance of counsel.

5. Whether the cumulative effect of the errors rendered Parisie’s murder trial fundamentally unfair and in violation of due process guaranteed by the Fourteenth Amendment.

DISCUSSION

Issue 2:

Since we consider issue 2 of primary importance and dispositive of his appeal, we meet it first.

The issue under this assignment of error was’ raised in the Illinois Appeals Court and in Parisie’s memorandum of April 13 and July 2, 1979, filed in support of his habeas petition in the District Court. Through oversight or other reasons, the State did not address the District Court on the issue. Nor did the District Court deal with the issue in the opinion of December 18, 1979, supporting the summary judgment.

Under such circumstances, it would ordinarily be the better practice to remand the issue to the District Court for the first opportunity to decide the issue. However, we have the same record before us that would be before the District Court, and the parties have fully addressed us on the issue through the briefings. Furthermore, Parisie has been in custody for more than thirteen years and has been prosecuting these habeas proceedings since April 3, 1979. The appeal was inordinately delayed by extensions of time granted for the filing of the State’s briefings. In light of these circumstances, we deem that judicial expediency and the furtherance of justice demand that we meet the issue and make a disposition now.

We believe the court at trial arbitrarily adhered to its prior rulings on the motion in limine and the voir dire restriction in rejecting the testimony of three defense witnesses then before the court.

Parisie’s offer of proof consisted of defense counsel’s statement to the trial court that a witness would testify to having participated in three homosexual acts with the decedent and that the decedent was reputed in the community to be a homosexual. Also, defense counsel referred the trial court to an affidavit executed by another defense counsel and previously filed with the court and referred to at the hearings on the motion in limine and voir dire restrictions. This affidavit stated that two witnesses had seen the decedent in known male homosexual locations making homosexual manifestations.

The State does not dispute that the proffered testimony of the three witnesses was relevant, material and crucial to Parisie’s defense. Rather, it attempts to justify the exclusionary ruling on the ground that the form of Parisie’s offer of proof was defective; the state claims that defense counsel should have presented the testimony of the witnesses in camera rather than make the offer of proof himself. We believe that a prosecutor should not play cat and mouse with Sixth Amendment rights.

The same offer of proof had been made to the trial court on two prior occasions. On neither of those two occasions did the State’s counsel challenge the offer on the grounds of form. It is manifest that State’s counsel fully understood the nature of the testimony sought. But, if the State’s counsel was not satisfied with the offer made through defense counsel’s statement or wished further advice as to the witnesses’ qualifications or to the substance of the proffered testimony, he should have asked, and was required to ask, for the testimony of the witnesses to be proffered in camera. Furthermore, the trial court well understood the importance of the testimony both at the time of its ruling on the motion in limine, and again when it denied defense counsel’s motion for reconsideration of the ruling on the voir dire restriction. We assume the trial court still had that understanding when it excluded the witnesses’ testimony. See Schusler v. Fletcher, 74 Ill. App.2d 249, 219 N.E.2d 588, 590 (1966).

For the reasons later stated, we respectively disagree with the conclusion of the appellate court of Illinois, Fourth District, 287 N.E.2d at 325, that “[t]he ‘offer of proof’ regarding all three of these witnesses is patently inadequate. They amount to nothing more than conclusionary, broad-sweeping statements of defense counsel and offer no acceptable foundation for admission as reputation evidence.” The showing made simply does not warrant such a low assessment of probative value.

The proffered testimony of the three witnesses involved a great deal more than mere reputation evidence. The testimony involved actual homosexual acts and manifestations on the part of the decedent.

Sixth Amendment guarantees are very demanding in the protection of the right to a fair trial on murder charges. There is no indication in the record before us that the trial court ever made a definitive ruling that Parisie’s counsel’s offer of proof was insufficient. We are satisfied that the trial court and the State’s counsel were well advised as to the content, competency, and relevancy of the proffered testimony of the three witnesses then standing before the court. The taking of their testimony in camera may well have been merely a rehearsal, supplying no additional insight to the trial court.

To face Parisie at the appellate level with the State’s position that the offer of proof was technically insufficient raises an issue never urged at trial and never decided by the trial court. Rules on offers of proof are geared to the principle of preliminary advice to the trial court as to the relevancy of proffered evidence in order for the trial court to properly rule on admissibility, a safeguard against the admission of irrelevant and prejudicial evidence. At Parisie’s trial, the trial court was well and fully advised as to the relevancy of the proffered evidence since the early stages of the trial. Refer to the trial court’s ruling on the motion in limine and the trial court’s voir dire ruling on the second day of trial above. The prejudice to Parisie from the restrictive voir dire ruling destroyed Parisie’s defense predicated upon the testimony of the two expert witnesses. The late enforcement of a technical defect in the offer of proof at the appellate level must be rejected as in conflict with Parisie’s overriding due process rights under the Fourteenth Amendment. Green v. Georgia, 442 U.S. 95, 97, 99 S.Ct. 2150, 2151, 60 L.Ed.2d 738 (1979).

In Washington v. Texas, 388 U.S. 14, 87 S.Ct. 1920, 18 L.Ed.2d 1019 (1967), the Supreme Court, in reversing .a conviction when a defense witness was precluded from testifying, stated:

The right to offer the testimony of witnesses ... is in plain terms the right to present a defense, the right to present the defendant’s version of the facts as well as the prosecution’s to the jury so it may decide where the truth lies. Just as an accused has the right to confront the prosecution’s witnesses for the purpose of challenging their testimony, he has the right to present his own witnesses to establish a defense. This right is a fundamental element of due process of law.

388 U.S. at 19, 87 S.Ct. at 1923. See also Chambers v. Mississippi, 410 U.S. 284, 302, 93 S.Ct. 1038, 1049, 35 L.Ed.2d 297 (1973) (“Few rights are more fundamental than that of an accused to present witnesses in his own defense.”)

We are convinced in this case that the ruling excluding the proffered testimony was a carryover of the ill-advised orders on the motion in limine and the voir dire restriction. As such, the ruling was abusive and arbitrary. Hughes v. Mathews, 576 F.2d 1250, 1256 (7th Cir.), cert. denied, 439 U.S. 801, 99 S.Ct. 43, 58 L.Ed.2d 94 (1978), quoting Washington v. Texas, 388 U.S. at 25, 87 S.Ct. at 1926 (Harlan, J., concurring).

Parisie’s defense to the murder charge was that he did not have the requisite intent or mental capacity at the time of the incident because he was undergoing a “homosexual panic,” a state of mind in which an individual acts instinctively or, in the words of the defense psychologist, becomes “insane for a period of time.” The State is correct in asserting that the Supreme Court of Illinois has held that homosexuality “has in no way been equated in the law with insanity or incompetency.” People v. Jones, 43 Ill.2d 113, 251 N.E.2d 195, 199 (1969); People v. Jones, 6 Ill.2d 252, 128 N.E.2d 739 (1955).

Such a holding of law, however, does not address a disturbed state of mind resulting from manifestations of homosexual orientation. The Illinois courts did not reach the issue of whether the psychotic state of mind caused by “homosexual panic” is a limitation or impairment of the requirement of mental capacity to commit a crime. Nor do we reach that issue here.³

Parisie testified in his own defense, stating that as he walked along a Springfield street at about 9:00 p. m. on April 12, 1968, Jackson pulled up next to him and offered him a lift. Parisie knew Jackson because they had once talked about sports cars at Jackson’s automobile dealership, and accepted the offer of a ride.

Jackson soon stopped, purchased gasoline, ¡¡aid cash from a large roll of bills, and after driving around the streets, he drove to a secluded gravel road and stopped in a driveway. Ho turned off the car lights, moved in the front seat toward Parisie, and put his hand on Parisie’s crotch and said: “John, I’d like to blow you.”

To a question by defense counsel, Parisie replied:

Well, I was mad and he was smiling and he said, well if he couldn’t I was going to walk; and that’s where it ended right there. I remember struggling. I just kind of blew up, went crazy. I don’t remember exactly or in anyway anything that happened after that, except we were struggling and I remember driving in circles in his car and — there just wasn’t anything to it, nothing I can pinpoint or tell you direct.

A court-appointed clinical psychologist who examined Parisie found him to be a highly delusional paranoid schizophrenic who was a loner with a basic distrust of people and who suppressed his emotions causing periodical blow-ups. He found Parisie to be a highly latent homosexual with strong feelings of inferiority and testified that a severe stress of any type could result in an acute schizophrenic reaction with accompanying amnesia. During this schizophrenic reaction, “the individual comes apart and becomes insane for a period of time.”

A court-appointed psychiatrist defined homosexual panic as a fear reaction precipitated by a psychological trauma such as a homosexual advance. In such circumstances, the person, because of his own repressed homosexual feelings, loses control and acts purely instinctively, “almost like an animal,” causing the person to be unable to control the nature of his acts. This psychological state is followed by a “disassociative reaction of the personality” whereby the personality “literally disintegrates or becomes grossly disorganized.” The most common manifestation of a disassociative act is amnesia brought on because the individual cannot consciously tolerate his feelings and the acts in which he engaged because of those feelings. Homosexual panic, the psychiatrist stated, is a mental defect and symptomatic of a mental disease.

The two critical elements of the defense experts’ concept of the state of mind referred to as “homosexual panic” are: (1) Latent homosexuality on the part of the individual; and (2) A triggering act by another homosexual “such as a homosexual advance” or offer. While these defense expert witnesses supplied opinion evidence as to the existence of Parisie’s latent homosexuality, the trial court’s exclusionary ruling left the jury with the testimony of Parisie, an admitted latent homosexual, as the only evidence of homosexuality on the part of the deceased, a well known and respected citizen of the community, and of the second factor — a triggering act. The exclusion of the proffered testimony of the three witnesses deprived Parisie’s defense of vital corroborative evidence, both as to his credibility and the deceased’s homosexuality. See McMorris v. Israel, 643 F.2d 458, 461-62 (7th Cir. 1981).

Where credibility is as critical as in the instant case, the circumstances are such as to make the [excluded] evidence materially exculpatory within the meaning of the Constitution.

Id. at 462.

Of course, Parisie’s credibility and the factual defense, under appropriate instructions as to the applicable law, are matters committed to the sole province of the jury. However, during their consideration of those matters, the defendant is entitled under the Sixth Amendment to have the entire defense picture before the jury and not just one-half of the picture, namely, Parisie’s account of the deceased’s homosexual advance.

The right to offer the testimony of witnesses ... is in plain terms the right to present a defense, the right to present the defendant’s version of the facts as well as the prosecution’s to the jury so it may decide where the truth lies. Just as an accused has the right to confront the prosecution’s witnesses for the purpose of challenging their testimony, he has the right to present his own witnesses to establish a defense. This right is a fundamental element of due process of law.

Washington v. Texas, 388 U.S. at 19, 87 S.Ct. at 1923. See also Chambers v. Mississippi, 410 U.S. 284, 302, 93 S.Ct. 1038, 1049, 35 L.Ed.2d 297 (1973) (“Few rights are more fundamental than that of an accused to present witnesses in his own defense”).

The trial court’s ruling excluding the testimony of the three witnesses standing by was reversible error.

Issue 1(a):

In view of our ultimate reversal and granting of a new trial, this issue is moot on this appeal.

Issue 1(b):

In the event of a new trial, this opinion should be ample advice on the subject of the issue.

Issue 3:

In view of the probability of a new trial, we expect that the State will not again indulge in clearly or tenuously erroneous questioning with reference to the polygraph test, the decedent’s widow and young children or display of the bloody mutilated clothes. See People v. Parisie, 5 Ill.App.3d 1009, 287 N.E.2d 310 (1972).

Issue 4:

In view of the order for a new trial, this issue is moot.

Issue 5:

We are convinced from our reading of the record before us that in the absence of reversible error under issue 2, the exclusion of the testimony of the three proffered witnesses, any one or perhaps two of the erroneous rulings under issue 1(b) (voir dire restriction) or issue 3 (prosecutor’s improper tactics) could be considered harmless and not prejudicial to a fair trial; however, when those errors are considered cumulatively, the resulting aggregating effect was a steady and increasing destruction of a constitutional due process version of a fair trial.

We conclude for that reason alone Parisie would be entitled to a new trial.

The summary judgment entered by the District Court on December 18, 1979 is reversed and the cause is remanded to the District Court with instructions to issue its writ of habeas corpus as prayed for in Parisie’s petition, or in such substance as the District Court shall determine, but to stay the execution of such writ on the condition that the State of Illinois grant Parisie a new trial on the charges resulting in his conviction and sentence within a reasonable time or such a definite time as fixed by the District Court, and diligently and without unreasonable delay prosecute the charges to final conclusion. Otherwise, execution of the writ shall be forthwith had.

REVERSED AND REMANDED.

1 . The murder statute in effect at the time of petitioner’s state court trial, Ill.Rev.Stat. ch. 38, § 9-1 (1967) provided:

(a) A person who kills an individual without lawful justification commits murder if, in performing the acts which cause the death:

(1) He either intends to kill or do great bodily harm to that individual or another, or knows that such acts will cause death to that individual or another; or

(2) He knows that such acts create a strong probability of death or great bodily harm to that individual or another; or

(3) He is attempting or committing a forcible felony other than voluntary manslaughter.

(b) Penalty. ...

2 . One juror said: “You can’t expect me to say this isn’t going to make any difference to me if this man was a homosexual.”

3 . The court in State v. Thornton, 532 S.W.2d 37, 44 (Mo.Ct.App.1975), described homosexual panic “as a violent emotional reaction to a homosexual situation stemming from a person’s conscious, or subconscious, awareness of his own homosexual tendencies and a desire to conceal them at any cost. The result ... is conduct resulting in ‘fright, flight or fight’, and a loss of ability to distinguish between right and wrong and the suspension of premeditation or willful intent.” See also Commonwealth v. Shelley, 374 Mass. 466, 373 N.E.2d 951 (1978).