Douglas J. Feela v. Thomas Israel and Bronson Lafollette, Maurice Sabin v. Thomas Israel and Bronson Lafollette

Citation: 727 F.2d 151Docket: 83-2050, 83-1338

Court: Court of Appeals for the Seventh Circuit; February 7, 1984; Federal Appellate Court

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In the consolidated appeals of Maurice Sabin and Douglas Feela, the United States Court of Appeals for the Seventh Circuit reviewed the denials of their habeas corpus writs. The key issues addressed were: 

1. Whether the district court erred in determining that the introduction of evidence related to a van theft was a harmless error.
2. Whether references to Feela's post-arrest silence by the state were also harmless errors.
3. Whether the evidence at trial was insufficient to establish Sabin's guilt as an accomplice in the attempted murder.

The background of the case involves a robbery at Gene's Bottle House in Wisconsin Rapids on January 27, 1979, where Sabin and Feela were arrested after a gunpoint robbery. The prosecution's case relied heavily on the immunized testimony of Sabin's son, Jerry, who detailed a plan involving Feela, Sabin, and others to rob a bank, including the theft of a van for use as a getaway vehicle. Although initially abandoning the bank robbery plan, Feela later engaged in the armed robbery of the liquor store, during which he fired a gun at pursuing witnesses before fleeing. Police later found Feela in a basement, where evidence linked him to the robbery.

At trial, Feela and Sabin asserted alibi defenses, with Sabin claiming he was mostly at home and Feela recounting an encounter with an armed assailant who forced him to take off his coat and handed him items used in a robbery. Both were initially tried in Waupaca County for van theft and operating a vehicle without the owner's consent but were acquitted. Subsequently, they were convicted in Wood County of masked armed robbery, attempted first-degree murder, and conspiracy to commit armed robbery. 

Prior to the Wood County trial, they sought to suppress evidence related to the van theft, but while the court allowed testimony about the theft, it excluded details of their prior acquittal. The Wisconsin Court of Appeals upheld the admissibility of the van theft evidence, but the district courts later deemed its introduction erroneous yet harmless in the context of the conspiracy charge. Citing Ashe v. Swenson, the courts recognized that collateral estoppel prohibits relitigating issues already settled in a previous valid judgment, thus finding it erroneous to introduce the van theft evidence given their acquittal. However, the district courts concluded that this error was harmless.

This reasoning was contested, as Supreme Court precedents assert that if a conviction is based on an unconstitutional theory, it must be overturned. The significance of the van theft evidence's admission was questioned, highlighting that a general verdict rendered on multiple theories, one of which is unconstitutional, must be set aside to maintain the integrity of the legal process.

The jury returned a general verdict against the appellant without specifying the grounds for conviction, making it unclear which clause of the statute was applied. If any of the separable clauses were found invalid, the conviction could not be sustained, as it cannot be determined from the record whether the jury relied on a constitutionally valid basis. The proper legal standard dictates that a verdict must be set aside if it is supportable on one ground but not another, and the jury's choice of ground is indeterminate. 

In this case, the jury potentially disbelieved certain overt acts but could have based their verdict on a legally insufficient act. Additionally, the introduction of evidence related to van theft was deemed erroneous as it formed part of the conspiracy charge. The jury instructions required proof of a conspiracy and an overt act beyond mere agreement, but if the jury relied on the van theft as the necessary act, the convictions would be based on an unconstitutional premise. 

The State argued for a harmless error analysis, suggesting that the jury could have identified other acts as sufficient for the conspiracy charge. However, since the verdict was general and the specific act relied upon by the jury is unknown, the petitioners' conspiracy convictions must be overturned.

The court finds that the van theft was a key act in establishing the conspiracy, and the harmless error doctrine necessitates proving the error was harmless beyond a reasonable doubt. In this case, the court cannot confirm that the jury did not rely on the van theft evidence for the conspiracy conviction, indicating a substantial probability that the convictions are based on inadequate grounds, necessitating their reversal. Although the petitioners argue that the van theft evidence contaminated their armed robbery and attempted murder convictions, the court concludes that this evidence did not influence those charges. The evidence against Feela and Sabin for armed robbery and attempted murder was overwhelming and substantial, respectively. The court acknowledges that the state could have presented admissible evidence about the van's use in the conspiracy, reinforcing the conclusion that the introduction of the van theft evidence was a harmless error concerning these charges.

Regarding Feela's post-arrest silence, he asserts that the state improperly highlighted his failure to provide an alibi to police and commented on this silence during closing arguments. The court examines testimony regarding Feela's statements to the police, noting his ambiguity about what he communicated after his arrest. The implication of his silence and how it was presented in court raises questions about its appropriateness, though the court does not immediately rule on this aspect.

The witness stated he was shot at but received minimal questioning from the police immediately following the incident, feeling pressured and unable to provide more information. He expressed a desire for legal representation during the encounter. The prosecutor's closing arguments referenced the witness's incomplete testimony and alibi, leading to an objection that was sustained. The Wisconsin Court of Appeals determined that the prosecutor's comments violated the defendant Feela's due process rights but deemed the errors harmless within the context of the entire case. The Supreme Court precedent in Doyle v. Ohio established that using a defendant's post-arrest silence against them after receiving Miranda warnings is a due process violation. However, since Feela was read his rights only at the police station, any silence prior to that was permissible for impeachment. While some questioning improperly addressed Feela's post-Miranda silence, the overall strength of the evidence against him and the infrequency of the improper comments led the court to conclude that these errors were harmless beyond a reasonable doubt.

Evidence presented at trial was deemed sufficient to support Sabin's conviction for attempted murder under Wisconsin law, which holds individuals criminally liable as principals, aiders and abettors, or conspirators. Although the trial court failed to provide a jury instruction on the "natural and probable consequences" of aiding and abetting, the court found that this omission was harmless. The jury could reasonably infer Sabin's intention to assist in the crime based on the circumstances. The court referenced prior Wisconsin Supreme Court rulings, emphasizing that aiding and abetting includes responsibility for crimes that are natural outcomes of the intended act. The court affirmed aspects of the lower court's determinations while reversing and remanding other parts, ordering a new trial for certain convictions.