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Clark v. Lashbrook

United States Court of Appeals, Seventh Circuit

October 17, 2018

Tommy Clark, Petitioner-Appellant,
Jacqueline Lashbrook, Respondent-Appellee.

          Argued September 14, 2018

          Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 14 C 03936 - John J. Tharp, Jr., Judge.

          Before Bauer, Hamilton, and Scudder, Circuit Judges.


         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.

         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 prosecution 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 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.

         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 narrowed 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 ...

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