Andre Brown v. DAVE REDNOUR, Warden, Menard Correctional Center

The Honorable Charles N. Clevert, Jr., Chief Judge of the å
United States District Court for the Eastern District of Wis-
consin, sitting by designation.
In the
United States Court of Appeals
For the Seventh Circuit
No. 10-1116
ANDRE BROWN,
Petitioner-Appellant,
v.
DAVE REDNOUR, Warden,
Menard Correctional Center,
Respondent-Appellee.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 08 C 6666—John W. Darrah, Judge.
ARGUED JANUARY 7, 2011—DECIDED MARCH 25, 2011
Before MANION and WILLIAMS, Circuit Judges, and
CLEVERT, District Judge.å
CLEVERT, District Judge. Leon Mayes died from mul-
tiple gunshot wounds shortly after midnight on Octo-

-- 1 of 14 --

2 No. 10-1116
ber 10, 2000. Andre Brown and Derrick Stevens were
charged and found guilty of first-degree murder in sepa-
rate but simultaneous trials. During deliberations,
a sheriff taking forensic evidence to the Stevens jury
noticed that the Brown jury had an inadmissible police
report. Brown maintains that the jury’s exposure to
that report had a substantial and injurious effect on the
verdict. However, because the police report was cumula-
tive of evidence before the jury, the jury was properly
instructed, and exposure to the report was harmless
under Brecht v. Abrahamson, 507 U.S. 619, 637, 113 S. Ct.
1710, 123 L. Ed. 2d 353 (1993), we affirm.
I. BACKGROUND
Brenda Green testified that she was sitting in the
driver’s seat of her parked car with her boyfriend, Leon
Mayes, in the front passenger seat, when a silver Pontiac
Sunbird backed up so it was right next to her car. Green
recognized the driver as “Striker,” who had dated her
sister, and the passenger as “Poo,” who had dated her
friend. She had known each man for about five years.
In addition, Green noticed that two others sat in the
backseat of the Pontiac and knew the silver Pontiac be-
longed to “Striker’s” girlfriend, Valencia. She recog-
nized “Banks” as one of the people sitting in the back-
seat because he had gone to grammar school with
Green’s sister.
Green heard someone in the Pontiac yell, “There go
that m----- f-----.” The car then drove off at Mayes’s request.
The Pontiac pursued Green’s car in a high speed chase

-- 2 of 14 --

No. 10-1116 3
for several blocks remaining “right behind” her. When
Green turned left from 51st Street onto Ashland Avenue,
she heard gunshots. Mayes said that “Striker” was shoot-
ing at her car. Looking in the rearview mirror, Green saw
“Striker’s” left hand coming out of the car with a gun.
Mayes told Green to slow the car down and to jump
out, and she did. Mayes remained in the car as it rolled
down the street. The Pontiac then pulled over to the side
of the street, “Poo” got out, ran up to Green’s car, and
shot into the passenger side of the car where Mayes was
sitting. With his last shot, “Poo” said: “We got that m-----
f-----. Bar None, running it.” “Poo” got back into the
Pontiac and “Striker” drove away.
Green approached her car, which had stopped against
a pole at 50th Street and Ashland Avenue. She found
Mayes “shot up in a lot of blood.” At the scene, Green
told police that “Striker” and “Poo” were responsible
for the shooting.
Viewing photographs at the police station that same
night, Green identified Andre Brown, Derrick Stevens,
and Marlin Gosa, as “Striker,” “Poo” and “Banks” respec-
tively. She also identified all of them in lineups. Green
further identified Brown in open court as one of the
shooters, reiterating that he was “Striker” and that he
had shot Mayes.
In addition, Marlin Gosa testified that he, Brown and
Stevens were members of the Black P Stones gang, and
identified Brown as “Striker.” Prior to the trial, Gosa
provided a signed statement and grand jury testimony
detailing his eyewitness account of Mayes’s murder. The

-- 3 of 14 --

4 No. 10-1116
statement and grand jury testimony indicated that Gosa
was standing on a street corner, when “Dre” (a/k/a Andre
Brown) appeared driving a gray Pontiac. Stevens sat in
the Pontiac’s front passenger seat. Brown and Stevens
tried to convince Gosa to accompany them to a night-
club for Brown’s birthday. Gosa declined but asked
Brown to drive him home.
After driving a few blocks, Brown spotted a familiar
man and woman sitting in an old Chevrolet. Brown
passed the Chevrolet, then reversed to pull even with it
and shouted, “She with that m----- f-----.” The woman
behind the wheel said something and drove away sud-
denly. She then led Brown on a high speed chase. During
the chase, Gosa saw Brown sticking a gun through his
window and fire it at the man in the Chevrolet’s
front passenger seat. The chase ended when the
woman jumped out. Brown stopped the Pontiac and
Stevens exited holding Brown’s gun. Stevens ran towards
the Chevrolet, firing repeatedly into its passenger side.
Fleeing from the shooting, Brown remarked, “The b----
better not tell,” referring to the woman who witnessed
the crime. Brown, a Black P Stone general, instructed
Gosa not to talk to police about the murder.
Notwithstanding his statement and grand jury testi-
mony, Gosa failed to respond to the subpoena to
appear at Brown’s trial. After being arrested and forced
to appear, Gosa claimed—despite his earlier testimony
and the recovery of his fingerprints on Valencia Wash-
ington’s Pontiac—he was not with Brown on the night
of the murder. Gosa conceded that he gave a handwrit-

-- 4 of 14 --

No. 10-1116 5
ten statement and testified before the grand jury that
he was in a car with Brown and Stevens on October 10,
that the car was involved in a high speed chase, and that
Brown and Stevens had shot Mayes. Nevertheless, Gosa
maintained that the police told him what to say in his
statement and that he lied to the grand jury because
the police threatened to charge him with murder. As to
the sequence of events surrounding the car chase and
the shootings, Gosa’s signed statement and grand jury
testimony were not dissimilar from Green’s testimony.
The jury heard that at the time of the murder, Brown
lived with Valencia Washington, the mother of his child
and owner of the silver Pontiac involved in the murder.
Brown had a set of keys to Washington’s car and it
was not unusual for him to drive it. When Brown re-
turned the morning after the shooting and heard that
police had visited looking for him, he fled. Washington
did not see Brown again for over ten months.
Soon after Mayes was shot, Chicago Police Officer
James Sullivan interviewed several witnesses to the
murder, including Green. Sullivan summarized the
information he gathered from the interviews in a case
report. The one-page, two-sided report listed six wit-
nesses to the crime, named “Pooh” and “Striker” as the
offenders, noted the offenders were members of the
“Stones,” provided a description and license plate
number of the offenders’ vehicle, and included a brief
description of the crime. Of the six witnesses listed in
the document, one was the murder victim, Mayes, one
was Green, and one was Kenneth Thornton. Mayes was

-- 5 of 14 --

6 No. 10-1116
witness 1, Green was witness 2, and Thornton witness 3.
The police report labeled the other three witnesses 4
through 6. The report attributed to witnesses 3-6 the
following description:
[T]hey all witnessed off[ender]s run up to the victim
while firing several shots. Off[ender]s then got into
their vehicle and fled in an unknown direction. The
veh[icle] the victim was in then began to proceed
north bound on Ashland at [illegible word] [illegible
word] striking a pole at 5000 S. Ashland.
At trial, defense counsel used the police report to cross-
examine Green and Sullivan. The questioning estab-
lished: (1) that the police report listed six witnesses to
the crime, including Thornton; (2) at the crime scene, Green
identified Brown and Stevens as Mayes’s killers—Stevens
by his street name and Brown by his street name or by his
street name and his legal name; and (3) Brown drove
Valencia Washington’s car during the attack, while Green
provided its license plate number to Sullivan at the crime
scene.
Prior to deliberations, the court instructed the jury as
follows: “The evidence which you should consider
consists only of the testimony of the witnesses, the
exhibits, and stipulations which the court has received.”
The court further instructed that for first-degree
murder the state must prove that during the commis-
sion of the offense Brown personally discharged a firearm.
During its deliberations, the jury sent out a note asking
if it needed to prove that Brown personally discharged
a firearm. The jury also asked for the police report docu-

-- 6 of 14 --

No. 10-1116 7
menting other witnesses’ names, Valencia Washington’s
license plate number, whether any statements were
taken from the other witnesses at the crime scene and
whether they could see their statements. The court re-
sponded—with the approval of Brown’s attorney—as
follows: “No, you may not have additional evidence.
You have received all of the evidence. I direct your at-
tention to the first instruction that indicates the evi-
dence which you should consider consists only of the
testimony of the witnesses, the exhibits, and stipula-
tions which the Court has received.”
Meanwhile, the Stevens jury had finished hearing
closing arguments and jury instructions. The sheriff went
into Brown’s jury room to retrieve the only copy of the
forensic evidence to give to Stevens’ jury. At that time,
the sheriff saw one of the Brown jurors reading a police
report that had not been admitted into evidence and
took it to the judge. The parties agreed that the police
report had been inadvertently left in an envelope that
contained admitted exhibits.
The jury sent out another note asking about the
process if it could not reach a unanimous verdict. The jury
was told to continue deliberating. Later, the jury wrote an
additional note asking, “Can we please have back the
yellow folder that was half way slit on the side and in-
cluded the police report of the inventory of items taken?”
However, the police report at issue contained no inventory
of items. With the consent of Brown’s attorney, the court
proposed to repeat the response to the first note. But,
before the court could respond, the jury announced it had
reached a verdict.

-- 7 of 14 --

8 No. 10-1116
After the reading of the verdict, defense counsel moved
for a mistrial on the ground that the jury’s request for
the police report indicated that it had considered it
during its deliberations. The prosecutor responded that the
jury’s request indicated that it could not remember the
contents of the police report and did not rely on the police
report in reaching the verdict.
The court denied the mistrial motion on the ground
that exposure of the jury to the report did not prejudice
Brown; the disclosure was inadvertent; much of the
information in the report was brought out by the
defense to impeach the state’s witnesses; and the jury
was instructed that it should only consider the testimony
of the witnesses, the exhibits, and stipulations that the
court received.
On direct appeal, Brown argued, in part, that the jury’s
exposure to the police report violated his Fourteenth
and Sixth Amendment rights to due process and to con-
front witnesses against him. The Illinois Appellate
Court, First Judicial District, affirmed on July 23, 2007,
citing Brown’s identification through Green’s testimony
and Gosa’s signed statement and grand jury testimony.
Brown’s petition for leave to appeal to the Illinois
Supreme Court was denied on November 29, 2007.
Brown filed a timely petition for writ of habeas corpus
in the Northern District of Illinois, which was denied on
November 5, 2009. The district court held that under
Brecht the error in the state court did not have a sub-
stantial injurious effect or influence on the jury. Specifi-
cally, the district court cited the cumulative nature of

-- 8 of 14 --

No. 10-1116 9
the information in the police report and the trial court’s
curative instructions in response to the jury’s request
for the report. Brown’s request for a certificate of
appealability was denied by the district court, but, this
court granted it on the following issue: “whether [peti-
tioner] was prejudiced by the presence of an inad-
missible police report in the jury room.”
II. DISCUSSION
The Illinois Appellate Court found that an error
occurred in Brown’s trial, but affirmed his conviction
after applying the wrong standard. Citing Cranwill v.
Donahue, 132 Ill. App. 3d 873, 478 N.E.2d 22 (3d Dist. 1985),
the court acknowledged that juries should not see police
reports because they are in the nature of hearsay but
determined that Brown was not prejudiced because there
was no “aura of mystery” surrounding the report. How-
ever, the appellate court should have determined whether
the error was harmless beyond a reasonable doubt. Chap-
man v. California, 386 U.S. 18, 24, 87 S. Ct. 824, 17 L. Ed. 2d
705 (1967).
Recognizing that Cranwill was the wrong standard, the
district court applied Brecht v. Abrahamson, and con-
sidered whether the entry of the inadmissible police
report into the jury room had a substantial and
injurious effect or influence on the jury’s decision. 507
U.S. 619, 637-38, 113 S. Ct. 1710, 123 L. Ed. 2d 353 (1993).
The district court concluded:
The trial court made clear to the jury, in response to
[its] question about the police report, that the only

-- 9 of 14 --

10 No. 10-1116
evidence to be considered was the testimony of the
witnesses, the exhibits and any stipulations received
by the court. The substantial weight of the properly
admitted evidence, along with the court’s clear in-
struction to the jury that the police report was not a
part of the evidence, effectively further limited the
impact of the trial error. It cannot be said that the
entry of the police report into the jury room had a
substantial or injurious effect.
The initial question on federal review of a habeas
petition is whether the state court decision involved an
unreasonable application of clearly established federal
law. 42 U.S.C. § 2254(d). However, if the state court
never conducted the harmless error analysis or other-
wise applied Chapman unreasonably, the federal court
must make an independent decision as if the state court
never addressed the subject at all. Johnson v. Acevedo, 572
F.3d 398, 404 (7th Cir. 2009). Hence, here, the Brecht
standard is appropriate in determining whether the
error was harmless. Id.
Where a federal judge in a habeas proceeding is “in
grave doubt about whether a trial error of federal law
had ‘substantial and injurious effect or influence in de-
termining the jury’s verdict,’ that error is not harmless.”
O’Neal v. McAninch, 513 U.S. 432, 436, 115 S. Ct. 992, 130
L. Ed. 2d 947 (1995). However, in the habeas context,
“trial errors are often found harmless where the record
is replete with overwhelming evidence of the defendant’s
guilt.” Whitman v. Bartow, 434 F.3d 968, 971 (7th Cir.
2006). In addition, erroneously admitted evidence, if

-- 10 of 14 --

No. 10-1116 11
cumulative, is also harmless error. See Hinton v. Uchtman,
395 F.3d 810, 821 (7th Cir. 2005) (citing Brecht, 507 U.S.
at 639, 113 S. Ct. 1710).
According to Brown, habeas corpus must be granted
because even under Brecht the error was substantial.
He cites the unreliable nature of eyewitness identifica-
tion and the jury’s request to see the erroneously ad-
mitted report after being instructed on what is evidence.
Specifically, Brown argues that Green and Gosa were not
credible, purposefully lied to police and failed to
recall matters during their trial testimony. Green, for
example, testified that she lived with her parents and
had never given another address. On cross-examination,
Green admitted lying to police about her name and
where she was living at age 16 (in 1991) hoping to stay out
of trouble. Also, Green did not give police the name of
A ndre Brown immediately, but rather identi-
fied “Striker” and “Poo” as individuals she knew. On
cross-examination, she could not recall whether she
ducked down during the chase and shooting or
whether she left the car in drive.
Brown ignores that Green identified him at the scene,
within hours of the murder while viewing photo-
graphs at the police station, and in a lineup. In addition,
Brown fails to acknowledge that Green identified him
in open court as one of the shooters. Whether she
ducked down as shots were fired or remembered to
put the car in park were matters of credibility for the
jury to assess. See United States v. Williams, 216 F.3d 611,
614 (7th Cir. 2000). At best, these facts are peripheral to

-- 11 of 14 --

12 No. 10-1116
Green’s unequivocal identification of Brown and cer-
tainly not facts that would render her testimony excep-
tional or physically impossible. Id.
Admittedly, Marlin Gosa never accused Brown at
trial and maintained that his prior statements to police
were untrue. However, Gosa acknowledged his prior,
handwritten statement and testimony before the
grand jury regarding Mayes’s killing. His prior state-
ment and testimony were read and received as evidence
corroborating Green’s trial testimony. And while the
jury seemed deadlocked prior to reaching a verdict and
twice asked to see the police report, its note to the
court referred to a “yellow folder that was half way slit
on the side and included the police report of the in-
ventory of the items taken.” The police report at issue
did not contain an inventory of the items.
Ultimately, Brown has not refuted the appellee’s asser-
tions that the one-page, two-sided, police report con-
tained no material evidence that was not otherwise
before the jury. The police report indicated that there
were six witnesses to the shooting of Mayes, including
Kenneth Thornton, and the trial testimony established that
the police report listed six witnesses including Green and
Thornton. The police report identified the offenders as
“Pooh” and “Striker,” members of the Stones gang, and the
trial testimony established the same. The police report pro-
vided a description and license plate number, and the
trial testimony established that the assailants drove
a gray Pontiac displaying a license plate matching
Valencia Washington’s license plate. Moreover, the police

-- 12 of 14 --

No. 10-1116 13
report stated that the non-testifying witnesses saw the
assailants run to the victim while firing shots, get
into their vehicle, then flee as the car with the victim
rolled north on Ashland and struck a pole. Additionally,
the trial testimony established that Stevens ran toward
the victims’ vehicle firing multiple shots into the
passenger side, the assailants drove away, and Green’s
car continued to roll until it hit a pole at 50th and
Ashland. It is especially notable that Brown’s counsel
used the police report in an attempt to impeach state wit-
nesses. Indeed, Brown was convicted after the curative
instruction made clear to the jury that the requested
police report was not in evidence.
This is not a case of grave doubt. The evidence
against Brown cited by the appellee and unrefuted by
Brown was overwhelming, and the police report that
went to the jury room mistakenly was cumulative. Brown
had the opportunity to cross-examine Green and Gosa,
both of whom had the opportunity to observe him
at the time of the shooting and implicated him as
the driver who fired shots at Mayes. Arguing that
others have been cleared with DNA evidence or that
courts recognize the inherent dangers of eyewitness
identification does not undermine the strength of the
evidence in this record. The jury was in the best position
to assess the credibility of Green and Gosa and, under
these circumstances, this court cannot find that it
is “reasonably likely” that the jury relied on the
inadmissable police report and that the police report “had
substantial and injurious effect or influence” in deter-
mining the verdict.

-- 13 of 14 --

14 No. 10-1116
III. CONCLUSION
For the foregoing reasons, we AFFIRM the district
court’s denial of Brown’s petition for a writ of habeas
corpus.
3-25-11

-- 14 of 14 --