In the
United States Court of Appeals
For the Seventh Circuit

No. 99-3175

Daniel Alvarez, Sr.,

Petitioner-Appellant,

v.

William E. Boyd,

Respondent-Appellee.



Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 98 C 8338--Ruben Castillo, Judge.


Argued March 28, 2000--Decided August 29, 2000



  Before Easterbrook, Manion, and Evans, Circuit Judges.

  Manion, Circuit Judge. At 7:00 a.m. on December
14, 1993 Alicia Godina, while walking to a
commuter train, was attacked and severely
stabbed. She identified Daniel Alvarez, a former
boyfriend, as the attacker. However, Alvarez not
only denied it and presented a plausible alibi,
but also the only eyewitness to the attack said
Alvarez was not the perpetrator. Nevertheless, an
Illinois jury convicted him of attempted first-
degree murder. He was sentenced to forty years in
prison. Alvarez brought this sec. 2254 motion,
arguing that the cumulative effect of two
evidentiary rulings denied him a fair trial. The
district court denied relief but granted a
certificate of appealability. This was a close
case with each side presenting very conflicting
evidence. Nevertheless, a jury resolved the
difficult questions and found him guilty. We
conclude he received a fair trial, and so we
affirm.

I.

  On the morning of December 14, 1993, Alicia
Godina was on her way to work following the usual
route from her house to the train station in her
Chicago neighborhood along East 93rd Street. She
testified that shortly after she left her house
at 6:55 a.m., she heard someone behind her. When
she turned around she saw her ex-boyfriend--
Daniel Alvarez. He was holding a knife, which he
then used to stab her. Godina testified that
Alvarez temporarily halted the attack when a man
yelled at him to stop. According to her, Alvarez
ran after the man, but soon returned, got on top
of Godina and began to cut her throat. She said
that she closed her eyes and feigned death, at
which time Alvarez ran away.

  A nurse from the emergency room testified that
Godina suffered multiple stab wounds to her neck,
chest, abdomen, and wrists. When she arrived at
the hospital she was close to death: because the
knife had penetrated her heart, she had only a
faint heartbeat and only minimal blood pressure.
Yet apparently she was conscious at some point
because she informed a nurse (without mentioning
any names) that her "ex-boyfriend" had attacked
her. Godina underwent emergency surgery, without
anesthesia because of her faint heartbeat, and
eventually recovered from the attack.

  Because of Godina’s accusation, the police went
looking for Alvarez. About 2:00 p.m. on the day
of the attack, a small band of officers went to
his parents’ house where he lived. Alvarez was
there and he identified himself, invited the
officers into the house, and consented to a
search of the house and his van. The police did
not find any physical evidence linking Alvarez to
the crime. Nevertheless, based on Godina’s
accusation, they took Alvarez down to the police
station for questioning. A grand jury eventually
indicted Alvarez on one count of attempted first-
degree murder, three counts of armed violence,
and four counts of aggravated battery. Most of
the charges were eventually dismissed, but
Alvarez was tried by a jury for attempted first-
degree murder.

  At trial, the jury heard Godina’s version of the
attack and also learned about her prior
relationship with Alvarez. Godina testified that
she started dating Alvarez when she was fourteen
years old, and they dated for about three and
one-half years. Godina characterized Alvarez as
jealous and possessive, particularly after she
broke off the relationship in June 1993. She
described Alvarez as unhappy with the breakup,
although they both moved on and occasionally met
for lunch. Godina regularly took a Metra train to
downtown Chicago, and she told the jury that on
four occasions Alvarez followed her onto the
train, although she admitted that this might have
been a coincidence, as Alvarez also took the same
train to and from his job in downtown Chicago.
She testified that after August 25, 1993, she did
not again see Alvarez until the attack on
December 13.
  The prosecution’s case was necessarily brief, as
it centered on Godina’s testimony. The defense’s
star witness was Peter Thompson, who was the only
person to see the stabbing other than the victim
and the attacker. Thompson testified that he was
leaving his house on his way to work when he saw
the assailant first follow and then attack
Godina. Thompson was only about three or four
feet from them during part of the attack. When
the attacker saw Thompson, they faced each other
and briefly made eye contact before Thompson went
to his car to obtain a bat, whereupon the
attacker ran away. Thompson testified that he
looked closely at the assailant, that he
remembered his facial features, hair color,
mustache, build, and height. Although at some
point he was not certain he could identify the
attacker, he was positive that Alvarez was not
the man who stabbed Godina. Thompson also related
that, although the police interviewed him, they
never showed him photographs of Alvarez or any
other suspects, and never got around to having
him view a lineup of suspects. Thompson claimed
he knew neither Godina nor Alvarez, and thus
apparently had no motive to lie. He also lent
some support to the defense’s theory that
Godina’s memory of the attack may have been
faulty, as he testified that he never yelled at
the attacker to stop, as Godina’s testimony
indicated.

  Other testimony also gave reason to believe that
Alvarez may not have been the attacker. Alvarez
testified that on the morning of the assault he
was at Peggy’s Restaurant, a small diner near the
Royal Crown Cola plant where he had a job
interview. While no witness fully corroborated
Alvarez’s testimony about being at the restaurant
during the attack, several Royal Crown employees
testified that Alvarez showed up for an interview
at their plant at 47th Street and California
Street between 6:15 and 6:30 a.m. Because the
trucks needed to be dispatched, he was told to
return around 7:30 a.m. According to Alvarez, he
went to the restaurant to have something to eat,
and returned to the Royal Crown plant around
7:40. Royal Crown employees confirmed that
Alvarez returned to the plant between 7:30 and
8:00 a.m. This narrow space of time raises some
troubling questions. It gave Alvarez, at most,
one hour and forty-five minutes to drive from the
Royal Crown plant to the scene of the attack. The
timing had to be precise. He had to drive from
Royal Crown to the crime scene, park his van,
stalk and stab Godina, flee to his van, ditch the
knife, perhaps clean up any blood and ensure that
he did not leave any traces in the van, and drive
back to the plant and look presentable at the
interview. And all this during peak driving
times.
  A private investigator testified that, based on
two experiments driving the route, to travel the
approximate fifteen miles between the Royal Crown
plant and the site of the attack at East 93rd
Street would have taken forty-three minutes,
assuming the driver traveled the speed limit and
used the Dan Ryan Expressway during non-peak
driving times. A state investigator testified
that he made the drive from the plant to the
attack site in as little as twenty-eight minutes
during non-peak times, and thirty-seven minutes
during rush hour. Because the attack occurred
around 7:00, and the undisputed testimony was
that Alvarez was at the plant no earlier than
6:15, it would have been difficult for him to
have committed the crime. True, the attack might
have occurred as late as 7:10 or possibly even
7:15, but if that’s the case, it would have been
extremely difficult for Alvarez to make it back
to the Royal Crown plant by 7:40.

  Alvarez’s case is also striking by its contrast.
He doesn’t fit the profile of violent offenders
often in this court. The jury and sentencing
judge heard that he had no juvenile record or
history of violence, and that he came from a
stable, two-parent home where he still lived.
Alvarez completed high school with a respectable
GPA, and while a student he participated in
sports and received awards for perfect
attendance. Alvarez also earned an associate’s
degree in computer business systems and
accounting. He had a good work record, and had no
arrests or convictions, even for minor crimes. He
is not a member of a gang and there is no
indication that he used drugs or drank to excess.
Furthermore, his relationship with Godina was not
sexual or passionate, and their "dates" usually
consisted of sitting on the front porch of her
home. Although he was apparently upset after she
broke off the relationship, within a week of
their breakup they both were dating other people.
Thus, the prosecution’s attempt to paint Alvarez
as the jealous and jilted ex-boyfriend was less
than stellar. Nevertheless, Godina was adamant
that Alvarez was the attacker. For whatever
reasons the jury found most compelling, it
convicted Alvarez of attempted first-degree
murder. The judge sentenced Alvarez to forty
years imprisonment. The Illinois Court of Appeals
affirmed his conviction, People v. Alvarez, No.
94 CR 548-01 (Ill. App. Ct. 1997), and the
Illinois Supreme Court rejected his petition for
leave to appeal. People v. Alvarez, 686 N.E.2d
1164 (Ill. 1997).

  Alvarez filed this sec. 2254 motion, asserting
four grounds for relief. First, Alvarez contended
that he was denied his right to confront adverse
witnesses because the trial court declined to let
him cross-examine Godina about her tendency to
faint. The district court concluded that no
constitutional error occurred because this line
of questioning was not particularly relevant, and
that any error was harmless. Alvarez v.
O’Sullivan, 58 F. Supp.2d 882, 886, 887 (N.D.
Ill. 1999). Second, Alvarez argued that the trial
court denied him the right to present a defense
by excluding Thompson’s pretrial statement that
the defendant was not the attacker. The district
court held that this was hearsay that was not
subject to any exception, and thus the district
court did not err in excluding it. Also, even if
it were an error, the error was harmless. Id. at
887, 888. Alvarez then argued that, even if these
two errors could not be considered prejudicial
when considered separately, their cumulative
effect was to deny him a fair trial in violation
of the Due Process Clause of the Fourteenth
Amendment. The district court rejected this
argument because Alvarez had to show that there
were at least two trial errors, but he failed to
demonstrate that there was even one. Id. at 888.
His fourth argument was that there was
insufficient evidence to support the conviction,
which the district court quickly dispatched based
on Godina’s testimony that we recounted above.
Id. at 889. Alvarez sought from the district
court a certificate of appealability as to all
four claims, but the district court granted one
only as to Alvarez’s cumulative effect argument,
which is, therefore, the only issue on appeal.

II.

  To prevail on his Section 2254 motion, Alvarez
must show that a decision by the Illinois state
courts "was contrary to, or involved an
unreasonable application of, clearly established
Federal law, as determined by the Supreme Court
of the United States," or "was based on an
unreasonable determination of the facts in light
of the evidence presented in the State court
proceeding." 28 U.S.C. sec. 2254(d)(1) & (2); see
Williams v. Taylor, 120 S. Ct. 1495, 1521 (2000).

  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. Taylor v. Kentucky, 436 U.S.
478, 487 n.15 (1978); United States v. Santos,
201 F.3d 953, 965 (7th Cir. 2000); United States
v. Haddon, 927 F.2d 942, 949 (7th Cir. 1991)./1
"The cumulative effect of two or more
individually harmless errors has the potential to
prejudice a defendant to the same extent as a
single reversible error." United States v.
Rivera, 900 F.2d 1462, 1469 (10th Cir. 1990) (en
banc); United States v. Rogers, 89 F.3d 1326,
1338 (7th Cir. 1996). To prevent the synergistic
effect of these errors from escaping review,
courts attempt to determine whether the whole is
greater than the sum of its parts. The cumulative
effect analysis requires a petitioner to
establish two elements: (1) at least two errors
were committed in the course of the trial; (2)
considered together, along with the entire
record, the multiple errors so infected the
jury’s deliberation that they denied the
petitioner a fundamentally fair trial. Jackson v.
Johnson, 194 F.3d 641, 655 n.59 (5th Cir. 1999);
United States v. Copple, 24 F.3d 535, 547 n.17
(3d Cir. 1994); Rivera, 900 F.2d at 1471 n.11.

  As to the first prong (were there two errors),
if there was no error, or just a single error,
there are no ill effects to accumulate and so a
petitioner in such a case could not prevail on
this theory. Van Woudenberg ex rel. Foor v.
Gibson, 211 F.3d 560, 571 (10th Cir. 2000);
United States v. Stokes, 124 F.3d 39, 43 (1st
Cir. 1997); United States v. Akinsanya, 53 F.3d
852, 859 (7th Cir. 1995). Courts will consider
only plain errors or errors which were preserved
for appellate review. United States v. Munoz, 150
F.3d 401, 418 (5th Cir. 1998); United States v.
Necoechea, 986 F.2d 1273, 1282 (9th Cir. 1993).
As to the second prong (cumulative errors
affected fundamental fairness), the Constitution
entitles the petitioner to a fair trial, not a
perfect one. Rose v. Clark, 478 U.S. 570, 579
(1986); Rogers, 89 F.3d at 1338. And courts must
be careful not to magnify the significance of
errors which had little importance in the trial
setting. United States v. Ward, 190 F.3d 483, 491
(6th Cir. 1999). This requires an examination of
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. United States v. Fernandez,
145 F.3d 59, 66 (1st Cir. 1998); United States v.
Thomas, 93 F.3d 479, 487 (8th Cir. 1996); United
States v. Frederick, 78 F.3d 1370, 1381 (9th Cir.
1996); Haddon, 927 F.3d at 949. To warrant
relief, the reviewing court must determine that
the effect of the errors, considered together,
could not have been harmless. United States v.
Oberle, 136 F.3d 1414, 1423 (10th Cir. 1998). Put
another way, a court must be firmly convinced
that but for the errors, the outcome of the trial
probably would have been different. Santos, 201
F.3d at 965; United States v. Thornton, 1 F.3d
149, 156 (3d Cir. 1993); Solles v. Israel, 868
F.2d 242, 248 (7th Cir. 1989) (prosecutorial
misconduct).
  As the district court noted, Alvarez cannot
prevail on his cumulative effect argument because
he failed to show that there was even a single
error, much less two. The district court’s
opinion adequately explains why questions about
Godina’s purported tendency to faint is not
relevant. She did not faint as a result of the
stabbing, and other unrelated fainting incidents
would have no indication that she would or would
not have fainted during the attack. We only add
that the result might have been different if
Alvarez had also offered evidence that fainting
has a correlation with faulty memory or
delusions. Because no such evidence was tendered,
her propensity to lose consciousness was
irrelevant. As to the trial court’s decision to
exclude Thompson’s prior statement that Alvarez
was not the assailant, Alvarez has not
demonstrated that this was not hearsay, or that
an exception to the hearsay rule is applicable.
Moreover, he hasn’t overcome a second, perhaps
more compelling ground for exclusion: the fact
that the statement would have been cumulative of
Thompson’s nearly identical trial testimony.
Thompson was unequivocal in his assertion that
Alvarez was not the attacker. There was no
evidence that he told anyone something different.
Because Alvarez has not shown that the testimony
was admissible, he cannot show that the trial
court committed at least two errors. And without
establishing the requisite two errors, Alvarez
cannot prevail on a cumulative effect claim.

  Furthermore, even if Alvarez had established the
existence of two trial errors, we would not say
that the cumulative effect of the district
court’s decisions denied him a fair trial. For
largely the same reasons that these decisions
were not errors, they could not have caused
Alvarez prejudice. Thus, even if Alvarez had
elicited testimony from Godina that she had a
tendency to faint, this wouldn’t have helped
Alvarez’s case because he was not going to
present evidence that fainting causes mistaken
memories. Thus, simply preventing the jury from
hearing that Godina occasionally loses
consciousness did not harm Alvarez’s case.
Similarly, because the jury heard first-hand
Thompson’s adamant assertion that Alvarez was not
the attacker, testimony about Thompson previously
making the same assertion would have produced
little benefit for Alvarez that he didn’t already
enjoy. Indeed, any added advantage would have
been so minimal that Alvarez can hardly say that
being denied this testimony, along with the
testimony about Godina’s fainting, denied him a
fair trial. This is true even though the evidence
against Alvarez, taken together, was far from
overwhelming.
III.

  The sharply conflicting testimony of Godina on
the one hand and Alvarez and Thompson on the
other, coupled with other conflicts of timing and
motive, do make this a close, even troubling
case. The time span between Alvarez’s first and
second visits at the Royal Crown Cola plant was
so narrow that the attack had to be precisely
executed. This, along with Thompson’s insistence
that Alvarez was not the attacker and the
investigators’ inability to find any
corroborative evidence linking Alvarez to the
crime scene, adds to the mystery. But Godina’s
testimony was unwavering and as long as the trial
was fair, this court must rely on the jury, not
the cold record, to resolve questions of witness
credibility and conflicting evidence.

  Alvarez has failed to show that the trial court
committed any errors in excluding testimony.
Because he cannot show that he suffered the
effects of multiple errors, he cannot avail
himself of the cumulative error analysis. Alvarez
received a fair trial, and the decision of the
district court to deny Alvarez’s sec. 2254
petition is AFFIRMED.



/1 One circuit has held that the cumulative effect
of trial errors does not provide a basis for
relief in a sec. 2254 motion. Wainwright v.
Lockhart, 80 F.3d 1226, 1233 (8th Cir. 1996)
("errors that are not unconstitutional
individually cannot be added together to create a
constitutional violation"). Because neither party
has addressed this issue, however, we do not
consider it.
