In the
United States Court of Appeals
For the Seventh Circuit

No. 99-4246

Jerome L. Anderson,

Petitioner-Appellant,

v.

Jerry Sternes, Warden,

Respondent-Appellee.



Appeal from the United States District Court
for the Northern District of Illinois, Eastern
Division.
No. 95 C 6864--David H. Coar, Judge.


Argued September 12, 2000--Decided March 15,
2001




  Before Posner, Coffey, and Manion, Circuit
Judges.

  Manion, Circuit Judge. Jerome Anderson
was convicted in Illinois state court of
two counts of attempted murder and one
count of aggravated battery. After
exhausting his state court remedies,
Anderson filed a petition for habeas
corpus arguing that he was denied due
process and that he received ineffective
assistance of counsel. The district court
denied Anderson’s petition for habeas
relief. We affirm.

I.   Background

  On March 2, 1990 at about 8:40 p.m.,
Chicago police officers Richard Mitchell
and Johnny Patterson were patrolling the
Chicago Housing Authority residences
located on South Federal Street in
Chicago, Illinois. They were in plain
clothes and driving an unmarked car. As
they drove by one of the buildings, they
saw a large group of men standing in the
breezeway of the building located at 3919
South Federal. They parked their car
about one block away and then began
walking toward the men. When they were
approximately four to five feet away from
a then-unknown individual (later
identified as Jerome Anderson), Officer
Patterson announced "police officers."
Anderson began to run, but as he was
fleeing he turned and fired at Officers
Mitchell and Patterson. Patterson was
shot twice, once in the leg and once in
the chest, but the shots missed Mitchell.
Officer Mitchell radioed for assistance
and for an ambulance for Officer
Patterson.

  Several officers responded to the scene,
including Officer Mitchell McCullough, a
gang specialist for the Chicago Police
Department who had been patrolling the
area. Officer Cummings also responded to
the call, and he obtained a description
of the assailant from Officer Mitchell.
Officer Mitchell described the shooter as
between 16 - 20 years old, about six feet
tall, 150 pounds, with no facial hair.
Later that evening back at the police
station, Officer Mitchell identified
Jerome Anderson as the shooter from an
array of pictures.

  The following day the police went to
Anderson’s girlfriend’s apartment to
arrest him. Anderson attempted to flee,
jumping out of the second-floor bedroom
window, but the police caught him before
he could get away. They then searched the
apartment, seizing a .22 caliber rifle, a
rifle scope, a box of .380 automatic
bullets, ten loose .380 bullets, nine .38
special bullets, a loaded .45 caliber
pistol, a clip with six .45 caliber live
rounds, and one box of .45 caliber
bullets. However, they did not find the
.38 caliber pistol believed to have been
used to shoot Officer Patterson. After he
was arrested Anderson was placed in a
line-up, and Officer Mitchell once again
identified him as the shooter. However,
contrary to Officer Mitchell’s original
description, Anderson had some facial
hair and gave his weight at 210 pounds.

  Based on Officer Mitchell’s
identification, Jerome Anderson was
indicted on two counts of attempted
first-degree murder and one count of
aggravated battery. He pleaded not guilty
and proceeded to trial in Illinois state
court. At trial, Anderson claimed that he
had never been to 3919 South Federal and
had not shot Officer Patterson. He also
testified that he fled from his
girlfriend’s apartment because he heard
intruders forcing their way in downstairs
and he was afraid; he claimed that he did
not know it was the police seeking entry.

  Officer McCullough contradicted
Anderson’s testimony, stating that he had
seen Anderson at 3919 South Federal on at
least three occasions. The jury also
learned that Officer Mitchell had
identified Anderson from a photo array
and a line-up, and Officer Mitchell again
identified Anderson in court as the
shooter. Officer Patterson also testified
as to the events on the evening of March
2, 1990, and he identified Anderson as
the shooter, stating that he got a good
look at Anderson from a distance of only
four to five feet. In addition to the in-
court identification, Patterson testified
that the previous day he had identified
Anderson from a photo array of six
individuals and also from a photograph of
the line-up conducted with Anderson. The
State of Illinois also presented a
stipulation from an expert that a spent
bullet recovered from the area was "a .38
caliber bullet, a .38 special," and the
jury heard testimony that at the time he
was arrested, Anderson possessed bullets
for a .38 special but no matching gun,
whereas he had a .45 caliber pistol and
ammunition for it.

  Based on this and other testimony, the
jury found Anderson guilty of two counts
of attempted first-degree murder and one
count of aggravated battery, and he was
sentenced to prison terms of 40 years and
10 years, to be served consecutively.
Anderson appealed to the Illinois
Appellate Court First District, which
affirmed his conviction, and then he
sought review by the Illinois Supreme
Court, which denied his request for leave
to appeal. After exhausting his state law
appeals, Anderson filed a petition for
habeas corpus in the district court.
Anderson argued that he had been denied
his right to due process because the
state court had improperly admitted
evidence of the weapons seized from his
girlfriend’s apartment, and that it erred
in allowing Officer McCullough to be
identified as a gang specialist. Anderson
also objected to a statement made by
Officer McCullough that the photos used
in a photo array were of "persons that
had been arrested in the past." Finally,
Anderson claimed that he was denied
effective assistance of counsel because
his attorney failed to seek limiting
instructions for the above evidence. The
district court denied Anderson’s petition
for habeas relief, and he appeals.

II. Analysis
A. Due Process

  Anderson contends that he was denied his
right to due process because the jury
improperly heard the three pieces of
evidence set forth above. Initially, it
is important to note that state court
evidentiary errors do not normally
entitle a defendant to habeas relief.
Rather, habeas relief is appropriate only
if the erroneous evidentiary rulings were

so prejudicial that [they] compromise[d]
the petitioner’s due process right to a
fundamentally fair trial. This means that
the error must have produced a
significant likelihood that an innocent
person has been convicted. Indeed,
because of this high standard,
evidentiary questions are generally not
subject to review in habeas corpus
proceedings.

Howard v. O’Sullivan, 185 F.3d 721, 723-
24 (7th Cir. 1999). Moreover, "courts
must be careful not to magnify the
significance of errors which had little
importance in the trial setting." Alvarez
v. Boyd, 225 F.3d 820, 825 (7th Cir.
2000). To consider the significance of
the alleged errors, a court must examine
"the entire record, paying particular
attention to the nature and number of
alleged errors committed; their
interrelationship, if any, and their
combined effect; how the trial court
dealt with the errors, including the
efficacy of any remedial measures; and
the strength of the prosecution’s case."
Id. Against this background, we consider
each of Anderson’s evidentiary challenges
to determine if an error existed and, if
so, whether it reached the level of a due
process violation.

  First, Anderson contends that testimony
by Officer McCullough that he was a gang
specialist was improperly admitted. In
support of his position, Anderson cites
cases holding that evidence that a
defendant is a gang member is
inadmissible. While that is true, there
was no testimony in this case that
Anderson was a member of a gang or that
the shooting was gang-related. Rather,
Officer McCullough merely informed the
jury of his title with the Chicago Police
Department, just as the other testifying
police officers did. Given the limited
nature of the comment and the fact that
the prosecution in no way tried to
characterize Anderson as a gang member or
the crime as gang-related, we do not
believe that the passing references to
Officer McCullough as a gang specialist
were improper. Because there was no
error, this testimony does not implicate
Anderson’s due process rights. See, e.g.,
United States v. Hall, 109 F.3d 1227,
1232 (7th Cir. 1997) (passing reference
to defendant’s gang membership did not
have a "substantial and injurious effect
or influence on the jury’s verdict").

  Anderson next challenges a statement
made by Officer McCullough during direct
examination. Specifically, in questioning
Officer McCullough concerning Officer
Mitchell’s identification of Anderson
from the photo array that Officer
McCullough had shown him, the prosecution
requested that Officer McCullough look at
the photo array, and then asked him what
it was, to which he responded that "these
are police photos of persons that had
been arrested in the past."

  The law is clear that a defendant’s
prior arrest record is inadmissible, and
while the reference to Anderson’s past
arrest was only indirect, it was still
improper. Yet not every evidentiary error
constitutes a denial of due process.
Rather, the question is whether the error
produced a significant likelihood that an
innocent person has been convicted.
Howard, 185 F.3d at 723-24. Given that
this was a passing reference and that the
prosecution did not focus on it either
during questioning or in closing
arguments, we conclude that this
reference did not affect the jury
verdict.

  Finally, Anderson argues that he was
denied due process because the
prosecution presented evidence that at
the time he was arrested, the police
seized other weapons. Granted, the mere
presence of weapons during an arrest is
irrelevant. Yet, the presence of a .45
caliber pistol and ammunition seized was
relevant to the government’s theory that
Anderson also owned a .38 caliber pistol-
-the type believed to have been used to
shoot Officer Patterson--but that
Anderson disposed of it before his
arrest. The prosecution showed that
Anderson owned the .45 caliber pistol as
well as ammunition for it. But although
the police officers found .38 caliber
ammunition in the apartment, they did not
find the .38 caliber weapon that used
that ammunition. Since the evidence
indicated that the bullet which hit
Officer Patterson was .38 caliber, this
furthered the government’s theory that
Anderson disposed of the weapon used to
shoot him. As for the rifle, Anderson
claimed that he did not own the rifle,
while he admitted that he owned the .45
caliber pistol. It is hard to see what
prejudice could result from the mention
of a weapon Anderson did not own. Along
with the rifle, police found an
attachable scope. This could have added
some weight to the government’s theory
that Anderson would not possess .38
caliber ammunition unless he had recently
owned a weapon that could use the ammuni
tion.

  The presence of the weapons in the
apartment was relevant for another
reason: Anderson testified that he jumped
out of the second-story window of his
girlfriend’s apartment because he heard
people forcing themselves into the
apartment and he was afraid; he claims he
did not know it was the police. But
Anderson also testified that when he fled
he left behind his girlfriend and her
young niece and nephew, notwithstanding
that he had within arm’s reach a loaded
weapon, which he claimed he kept for
protection. The existence of the weapons
was thus relevant in that it called into
question Anderson’s explanation as to why
he possessed them in the first place, and
if so why he fled. The contradiction made
it more likely that he took flight
because he knew the police were after him
for shooting Patterson.

  Still, relevant evidence may be
inadmissible if the unfair prejudice
stemming from its admission substantially
outweighs its probative value. If we were
to do the balance, we would be hard
pressed to conclude that the probative
value flowing from the admitted weapons
and ammunition was substantially
outweighed by unfair prejudice,
especially since in discussing the
weapons during trial and in closing
argument, the government focused only on
its theory about the relevance of the
weapons; the government did not argue
that Anderson was a bad person because he
kept guns, just that Anderson would
likely not have had ammunition for a .38
caliber weapon without also owning one
that used that caliber of bullets. Nor
would Anderson have fled out of fear of
an intruder, leaving two small children
alone and unprotected, when he had a
loaded weapon supposedly kept to protect
himself and other occupants of the
apartment. But in any event, in a habeas
challenge any alleged error must amount
to a constitutional infirmity. At this
stage it is not this court’s duty to
balance the probative value against the
unfair prejudice because "the Due Process
Clause does not permit federal courts to
’engage in a finely tuned review of the
wisdom of state evidentiary rules.’"
Morgan v. Krenke, 232 F.3d 562 (7th Cir.
2000) (quoting Patterson v. New York, 432
U.S. 197 (1977)). Rather, we must
consider whether the alleged unfair
prejudice stemming from this evidence
firmly convinces us "that but for the
errors, the outcome of the trial probably
would have been different," thus denying
the petitioner his due process right to a
fundamentally fair trial. Alvarez, 225
F.3d at 825. Given the government’s focus
on its theory of the case (rather than
the mere fact that Anderson owned guns),
we conclude that any unfair prejudice
does not call into question the jury
verdict. Therefore, the inclusion of this
evidence also did not create a due
process violation.

  Anderson also contends that even if each
of these evidentiary errors,
individually, did not violate his due
process rights, the cumulative effect of
the errors did. Anderson is correct that
while individual errors may not affect a
defendant’s due process rights, the
synergy of those errors could. Alvarez,
225 F.3d at 824 ("Trial errors which in
isolation are harmless might, when
aggregated, alter the course of a trial
so as to violate a petitioner’s right to
due process of law."). But even
considered together, the admission of
these three pieces of evidence (assuming
their admission was erroneous) does not
undermine the validity of the jury’s
verdict because the challenged evidence
constituted a minor portion of the
government’s case, which rested mainly on
the positive identification of the two
police officer victims, coupled with
Anderson’s flight from the police and his
possession of .38 caliber bullets. See,
e.g., United States v. Rogers, 89 F.3d
1326, 1338 (7th Cir. 1996) ("The
Constitution entitles a criminal
defendant to a fair trial, not a perfect
one and we will not upset a guilty
verdict where the record fairly
demonstrates the defendant’s guilt such
that none of the asserted errors, either
individually or cumulatively, could
possibly have influenced the jury to
reach an improper result.").

  Moreover, in attempting to discredit the
jury verdict, Anderson does not explain
how these three errors combined to
improperly influence the jury. Rather,
Anderson attacks the credibility of
Officers Patterson and Mitchell’s
identification of him as the shooter.
Specifically, Anderson attempts to call
the jury verdict into question by
focusing on the discrepancies between
Officer Mitchell’s original description
of the shooter and Anderson’s actual
appearance, and by challenging the
reliability of eyewitness identifications
in general. But Anderson does not contend
that the state court improperly admitted
Officers Patterson and Mitchell’s
testimony and identifications. Nor does
he assert that the admissibility of these
eyewitness identifications somehow
violated his due process rights. Because
Anderson does not challenge the
admissibility or the constitutionality of
the eyewitnesses’ evidence, he cannot use
the alleged discrepancies with the
identifications (which are really nothing
more than credibility issues) to turn
unrelated evidentiary errors (i.e., the
guns, gang specialist title, and past
criminal record comment) into denials of
due process.

  When considering whether a due process
violation entitles a defendant to habeas
relief the court will consider the
remaining evidence to determine whether
the improperly admitted evidence calls
into question the jury verdict. Alvarez,
225 F.3d at 825. But that does not
entitle a federal court to retry a case.
The jury in this case heard about all of
the questions regarding eyewitness
identifications. It also learned that
Officer Mitchell’s original description
of the shooter did not mesh with
Anderson’s appearance when he was
arrested the next day, including the fact
that Officer Mitchell had stated that the
shooter was clean-shaven, but that
Anderson’s arrest photograph showed him
with facial hair. But the jury also had
before it the photograph of Anderson
taken at the time of his arrest and thus
it could gauge for itself the amount of
facial hair Anderson actually had, and
whether--given time for another day’s
growth--it would have been noticeable the
night before when Officer Mitchell
described Anderson as clean-shaven. The
record, on the other hand, inexplicably
does not contain a copy of the
photograph, so we have no way of
comparing how far off Officer Mitchell’s
description was from Anderson’s
appearance. On the cold record it may
seem contradictory to believe that
Anderson went from being "clean-shaven"
one day, to having a "mustache and
goatee" the next. Even without a picture,
however, the trial transcript
demonstrates that the evidence examined
by the jury was not as conflicting as
Anderson would have us believe. For
instance, in closing argument the
government told the jury to view the
photograph of Anderson taken when he was
arrested, and asked them "Is there any
facial hair?" or "Is this under the neck
hair?" In focusing the jury’s attention
on the photograph and the amount of
facial hair, the government commented
that Anderson had "a little facial hair
in the lineup," but it also reminded the
jury that the photograph was taken the
following day and that some of the growth
occurred during that time. Even
Anderson’s own trial attorney
acknowledged that "the mustache is not
heavy, but the growth is along the side
of the face and on the chin." Thus, the
jury had before it not just Anderson’s
asserted discrepancy concerning facial
hair, but also evidence from which it
could judge whether or not to accept
Officer Mitchell’s description of
Anderson as clean-shaven.

  Moreover, even if Anderson’s facial hair
would have been noticeable the night
before, the jury also learned that
notwithstanding the discrepancies,
Officer Mitchell selected Anderson from a
photo array the very night of the
shooting and again from a line-up the
following day. Officer Mitchell also
identified Anderson in court, after
explaining that he had walked to within a
few feet of Anderson before Anderson took
flight. The jury also heard from Officer
Patterson (who had not described Anderson
as clean-shaven) and he unequivocally
identified Anderson, both in a photo
array and in court, as his shooter,
stating the defendant "turned and faced
me, that’s when he pulled the silver
object out of his--the middle of his
pants and then that’s when he let loose,
that’s when he shot me." Officer
Patterson similarly testified that he was
within four to five feet of the shooter
before the shooter turned, shot and
fled./1 As to the weight difference,
that point was also argued to the jury,
and as the government noted, it was
Anderson himself who claimed to weigh 210
pounds at the time of his arrest. The
jury could have looked at Anderson in
court and in the arrest photo and
determined that the estimate Officer
Mitchell gave of 150 pounds was not so
incredible that it overcame the two
officers’ unequivocal identifications of
Anderson as the shooter. In sum, the jury
apparently found Officers Mitchell and
Patterson’s identifications credible
notwithstanding Anderson’s attacks on the
reliability of those identifications, and
there is no reason to believe that the
jury’s assessment of those
identifications would have been any
different had the jury not learned that
Officer McCullough was a gang specialist
or that the photo array which included
Anderson consisted of persons who had
been arrested in the past. Nor does any
unfair prejudice that may have stemmed
from the admission of evidence concerning
the weapons seized from Anderson’s
girlfriend’s apartment call into question
the identifications or the jury’s
reliance on those identifications to
convict Anderson.

  The jury heard additional evidence
supporting its guilty verdict. For
instance, in addition to the two
identifications, the jury heard testimony
from Officer McCullough who stated that
he had seen Anderson at the 3919 South
Federal Street address on at least three
prior occasions, notwithstanding
Anderson’s claim that he had never been
there before. From this evidence, the
jury could reasonably conclude that
Anderson was lying and that his claims of
innocence in regard to the shooting were
also false. The jury also learned that
Anderson possessed .38 caliber bullets--
the same type as recovered from the crime
scene--but that the gun for those bullets
was missing. Additionally, the jury
learned that Anderson jumped out of the
second-floor window when the police
appeared there the next day, and it heard
evidence calling into question Anderson’s
explanation that he didn’t know it was
the police. Moreover, while Anderson took
the stand and presented an alibi
(claiming that he was at a friend’s house
in Lansing the night of the shooting),
Anderson did not offer testimony from the
two individuals he was allegedly visiting
on the night of the shooting. From this a
jury could conclude that Anderson made up
the alibi, and was lying about the
shooting as well. While this additional
evidence is not overwhelming, when
coupled with the two unequivocal
identifications made by the victims who
were within five feet of the shooter, we
cannot say that there was a substantial
likelihood that Anderson would have been
acquitted had the jury not heard the
challenged evidence. Therefore, we
conclude that Anderson received a fair
trial and was not denied due process.

B. Ineffective Assistance of Counsel

  Anderson also argues that he was denied
effective assistance of counsel because
his trial attorney failed to seek a
limiting instruction concerning the
evidence of the seized weapons, Officer
McCullough’s identification of himself as
a gang specialist, and the testimony that
Officer Mitchell picked Anderson’s
picture from a photo array of individuals
who had been previously arrested.

  To succeed on an ineffective assistance
claim, a defendant must establish that
his counsel’s performance was
constitutionally deficient, "meaning that
the performance fell below the legal
profession’s objective standards for
reasonably effective representation" and
that the deficiency prejudiced the
defendant’s defense, "meaning that ’there
is a reasonable probability that but for
[counsel’s] unprofessional errors, the
results of the proceedings would have
been different.’" United States ex rel.
Partee v. Lane, 926 F.2d 694, 701 (7th
Cir. 1991) (quoting Strickland v.
Washington, 466 U.S. 668, 687-88 (1984)).


  Anderson’s attorney’s performance was
not objectively unreasonable. Rather, his
attorney may have strategically decided
that it was better not to ask for a
limiting instruction regarding the
weapons because such an instruction would
highlight the evidence to the jury. Such
a strategy is reasonable, especially
given that the evidence about the
presence of the weapons was a minor
portion of the government’s case. And any
limiting instruction would likely have
underscored the fact that .38 caliber
ammunition similar to the one that hit
Patterson was present. While in hindsight
the strategy might not have worked, we
cannot conclude that it was an
objectively unreasonable view to take.
Accordingly, Anderson cannot establish
the first prong of Strickland.

  Moreover, even if his attorney acted
unreasonably in failing to seek a
limiting instruction, there is not a
reasonable probability that the results
of the proceedings would be different.
The crux of this case was the
identifications by the eyewitnesses.
While variances exist between Officer
Mitchell’s original description and
Anderson’s appearance, the jury heard
about those differences, and in the end
they apparently believed that Officer
Mitchell’s photo array, line-up and in-
court identifications were credible, and
that Officer Patterson also correctly
identified his assailant. A limiting
instruction on other evidence is unlikely
to have changed the jury’s view of this
evidence. Therefore, even if Anderson’s
counsel were ineffective, Anderson failed
to establish the requisite prejudice.

II.   Conclusion

  Two Chicago police officers identified
Jerome Anderson as the man who shot at
them in the early evening hours of March
2, 1990. While one of the officer’s
original description of the shooter
differed from Anderson’s actual
appearance, the jury heard about those
discrepancies, and nonetheless concluded
that Officer Mitchell and Officer Patter
son’s identifications of Anderson were
correct. The evidence that Anderson
challenges in this habeas action fails to
call into question those identifications,
and it is not our job to second-guess the
jury’s assessment of credibility.
Therefore, even to the extent that the
jury improperly learned that Officer
McCullough was a gang specialist, that
the photo array which included Anderson
consisted of persons who had been
arrested in the past, or that the police
seized other weapons from Anderson’s
girlfriend’s apartment, the admission of
this evidence does not rise to the level
of a due process violation because
Anderson has failed to demonstrate a
substantial likelihood that the verdict
would have been different. Anderson has
also failed to establish that his
attorney was constitutionally
ineffective, as opposed to merely a
strategist who determined that it was
best not to highlight to the jury the
passing reference to gangs, guns and past
records, and even if that constituted
ineffective assistance, Anderson failed
to demonstrate that any prejudice flowed
from his attorney’s behavior. We
therefore AFFIRM.


/1 Anderson also challenges Patterson’s identifica-
tion, arguing that it is unreliable because
Patterson did not identify Anderson at the time
of the shooting, only nearly two years later,
immediately before trial was to begin. The jury
also knew of this fact, but apparently believed
that Patterson could still vividly recall the
face of the man who shot him.
