Comier v. Wills

              UNITED STATES DISTRICT COURT                           
           FOR THE NORTHERN DISTRICT OF ILLINOIS                     
                    EASTERN DIVISION                                 
MARION ANDRE COMIER                )                                      
                              )                                      
     Petitioner,              )    No. 1:22-CV-04432                 
                              )                                      
v.                            )                                      
                              )    Judge Edmond E. Chang             
ANTHONY WILLS ,                    )                                      
Warden, Menard Correction Center,    )                                    
                              )                                      
     Respondent.              )                                      

             MEMORANDUM OPINION AND ORDER                            
In state court, Marion Comier was charged with intentionally setting an apart-
ment building on fire, killing seven people. R.19-1, State Court Op. at 1.1 At trial, 
Comier wanted to introduce expert testimony about his mental illnesses to cast doubt 
on the credibility of his previous admissions to the crimes. Id. at 2–3. But the trial 
court decided that Comier could introduce that evidence only if he also agreed to be 
interviewed by the State’s expert psychiatrist. Id. at 5. Comier refused, so his expert’s 
testimony was barred. Id. The jury convicted Comier of seven counts of first-degree 
murder, and he was then sentenced to life in prison. Id. at 10.           
Comier then appealed his conviction to the Illinois Appellate Court. Id. Most 
relevantly, he argued on appeal that the trial court violated his Fifth and Sixth 
Amendment rights by conditioning the introduction of his expert’s psychological tes-
timony  on  Comier  submitting  to  an  interview  with  the  State’s  expert.  Id.  The 

1Citations to the record are “R.” followed by the docket entry number and, if needed, 
a page or paragraph number.                                               
appellate court rejected Comier’s arguments and affirmed the trial court’s decision. 
Id. at 12–16. Comier now files a petition for writ of habeas corpus, 28 U.S.C. § 2254, 
arguing that the state appellate court unreasonably applied federal law in concluding 

that his constitutional rights were not violated by the State-examination condition. 
R. 1, Habeas Pet.2 Because Supreme Court precedent clearly forecloses Comier’s con-
stitutional arguments, his habeas petition is denied, and a certificate of appealability 
is also denied.                                                           
                     I. Background                                   
In Cook County Circuit Court, Marion Comier was charged with intentionally 
setting fire to an apartment building in Cicero, Illinois, which killed seven people. 

State Court Op. at 1. The State alleged that Comier set the fire to help the landlord, 
Lawrence Myers, collect insurance proceeds on the building. Id. After the fire, Myers’s 
girlfriend, Bonita Robertson, went to the police and reported that she had heard My-
ers and Comier plotting to burn the building down and later discussing that they had 
completed the crime. Id. at 6. Robertson then agreed to wear a recording device to 
capture conversations with Myers and Comier. Id. In ensuing recorded conversations, 

Comier admitted to Robertson that he had set the fire by pouring oil and gasoline on 
a couch on the apartment building’s back porch and lighting it with a match. Id. at 7. 
In the lead up to his trial, Comier sought to introduce expert testimony from 
Dr. Bruce Frumkin, a psychiatrist who had examined him. Id. at 2. To refute the 


2This Court has jurisdiction under 28 U.S.C. § 2241.                 
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veracity of Comier’s own recorded admissions to Robertson, Dr. Frumkin would opine 
that                                                                      
[Comier] is an individual who has eccentric and bizarre thinking, has at times 
a detachment from reality … and has great difficulty processing emotional 
events. Sometimes people with serious mental disorders are not accurate in 
what they say. This may be something the trier of fact might want to consider 
when evaluating the weight to give to [Comier’s] statements to Robertson. 

State Court Op. at 2 (cleaned up).3 Comier wanted to introduce this evidence at trial 
to challenge the credibility of his own recorded admissions. Id. at 2–3. But the State 
objected to that proposed testimony on the ground that it would be improper com-
mentary on Comier’s credibility. Id. at 4. The trial court then decided that to maintain 
fairness and avoid confusing or prejudicing the jury, Dr. Frumkin’s testimony would 
be permitted at trial only if Comier would agree to be interviewed by the State’s psy-
chological expert. Id. at 5. Comier refused to be interviewed by the State’s expert, so 
the court barred Dr. Frumkin’s testimony. Id.                             
At trial, the State’s evidence against Comier included his recorded admissions 
and expert testimony from an arson investigator, who opined that the fire was inten-
tionally started using an accelerant. Id. at 6, 8. The jury found Comier guilty of seven 
counts of first-degree murder, and he was sentenced to life in prison. Id. at 10. Comier 
then appealed to the Illinois Appellate Court. Id. He argued that the trial court vio-
lated his Fifth and Sixth Amendment rights by conditioning the admission of Dr. 


3This opinion uses (cleaned up) to indicate that internal quotation marks, alterations, 
and citations have been omitted from quotations. See Jack Metzler, Cleaning Up Quotations, 
18 Journal of Appellate Practice and Process 143 (2017).                  
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Frumkin’s testimony on Comier submitting to an examination by the State’s expert. 
Id. He also contended that the trial court should have barred the State’s arson ex-
pert’s testimony because it lacked a proper scientific basis (though he does not press 

that claim here in federal court). Id. at 15–16. The appellate court rejected both ar-
guments and affirmed Comier’s conviction. Id. at 12–16. Comier now files a habeas 
petition, arguing that the Illinois Appellate Court misapplied Supreme Court prece-
dent by holding that the trial court’s decision on the admission of Dr. Frumkin’s tes-
timony did not violate Comier’s constitutional rights. Habeas Pet. at 36–39. 
                      II. Analysis                                   
Comier contends that habeas relief is proper because the trial court erred by 

deciding that to introduce Dr. Frumkin’s testimony, Comier was required to submit 
to an interview with the State’s psychiatrist. Habeas Pet. at 39. Comier says that this 
requirement violated his Fifth Amendment right against self-incrimination and his 
Sixth Amendment right to present a complete defense. Id. Comier’s arguments fail 
because the trial court’s evidentiary decision did not violate the Constitution. 
Under the pertinent standard of habeas review, Comier cannot obtain habeas 

relief unless he establishes that the Appellate Court unreasonably applied Supreme 
Court precedent or unreasonably determined the facts in light of the evidence. 28 
U.S.C. § 2254(d)(1)–(2). It is not enough for this Court to disagree with the state 
court’s decision. Instead, to secure habeas relief, Comier must show that the Illinois 
Appellate Court’s decision was “so lacking in justification” that an error is clear “be-
yond any possibility for fairminded disagreement.” Harrington v. Richter, 562 U.S. 
                           4                                         
86, 103 (2011). Comier does not clear that bar.                           
Although the Sixth Amendment generally provides the accused with the right 
to present a complete defense, that right is not unlimited. Instead, a trial court may 

“exclude evidence if its probative value is outweighed by certain other factors such as 
unfair prejudice, confusion of the issues, or potential to mislead the jury.” Holmes v. 
South Carolina, 547 U.S. 319, 326 (2006). Here, the trial court reasoned that although 
Comier said that he did not intend to present a formal insanity defense, Dr. Frum-
kin’s testimony still would testify that Comier suffers from a mental illness and is at 
times detached from reality. That testimony still would pose a risk of misleading the 
jury and could influence the jury’s thinking about Comier’s culpability and mental 

state when setting the building fire—not just his mental state at the time of the rec-
orded admissions. State Court Op. at 4–5. So to maintain fairness and ensure that 
the State had an adequate opportunity to rebut Comier’s psychological evidence, the 
trial court decided that to introduce Dr. Frumkin’s testimony, Comier would also have 
to agree to be interviewed by the State’s psychiatrist. Id. at 5.         
That was a reasonable decision and did not rob Comier of the right to present 

a defense. Comier cites no clearly established Supreme Court precedent to the con-
trary. As the state trial court reasoned: Dr. Frumkin’s testimony could have misled 
the jury and colored its thinking about Comier’s mental state in committing the al-
leged arson, rather than merely weighing on the credibility of Comier’s recorded ad-
missions. And the trial court did not entirely bar Dr. Frumkin’s testimony; the court 
instead took the more modest step of conditioning introduction of that testimony on 
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Comier being interviewed by the State’s expert. That step was not unreasonable and 
was a proper response to the risk of prejudice and jury confusion posed by the pro-
posed evidence.                                                           

Nor did placing that condition on Comier’s ability to introduce psychological 
evidence violate his Fifth Amendment right against self-incrimination. In Kansas v. 
Cheever, 571 U.S. 87 (2013), the Supreme Court explained that fairness and the core 
truth-seeking function of trials dictate that “[w]hen a defendant presents evidence 
through a psychological expert who has examined him, the government likewise is 
permitted to use the only effective means of challenging that evidence: testimony 
from an expert who has also examined him.” Cheever, 571 U.S. at 94. Thus, a trial 

court does not violate the defendant’s right against self-incrimination by requiring 
that the defendant submit to a government-expert examination. Applying that prin-
ciple here, because Comier sought to introduce testimony from Dr. Frumkin—a psy-
chiatrist who examined him—the State should also be given the opportunity to chal-
lenge that evidence with testimony from its own expert who had also examined Com-
ier. State Court Op. at 2. So the trial court properly followed Cheever by deciding that 

Comier could introduce Dr. Frumkin’s testimony only if he agreed to be interviewed 
by the State’s expert. Id. at 5. In fact, if the trial court had not applied that condition 
on Dr. Frumkin’s testimony, it would have unfairly denied the State the ability to 
effectively challenge that evidence. The Illinois Appellate Court thus correctly re-
jected Comier’s Fifth and Sixth Amendment arguments, reasoning that the trial court 

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could “compel the defendant to submit to an examination by a government expert 
without violating the fifth amendment right against self-incrimination.” Id. at 13. 
Comier counters that the Illinois Appellate Court unreasonably applied Su-

preme Court precedent because Cheever applies only when the defendant seeks to 
introduce psychological expert testimony in support of an insanity or other mental-
status defense. Habeas Pet. at 39. So, according to Comier, Cheever does not apply 
here because he intended to introduce Dr. Frumkin’s testimony solely to challenge 
the credibility of his own recorded admissions. Id. at 39–40. That approach reads 
Cheever too narrowly. True, Cheever set forth the rule that “where a defense expert 
who has examined the defendant testifies that the defendant lacked the requisite 

mental state to commit an offense, the prosecution may present psychiatric evidence 
in rebuttal.” Cheever, 571 U.S. at 94. But the Supreme Court’s rationale in arriving 
at that rule reveals that its holding expands (or, at the very least, reasonably ex-
pands) beyond situations in which the defendant argues that he lacked the mental 
state to commit an offense. The Court explained that admitting psychiatric rebuttal 
testimony “harmonizes with the principle that when a defendant chooses to testify in 

a criminal case, the Fifth Amendment does not allow him to refuse to answer ques-
tions on cross-examination.” Id. at 94. A defendant “has no right to set forth to the 
jury all the facts which tend in his favor without laying himself open to a cross-exam-
ination upon those facts.” Id. (cleaned up). So in “determining the scope and limits of 
the privilege against self-incrimination,” the “interests of the other party and regard 
for the function of courts of justice to ascertain the truth become relevant.” Id. 
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(cleaned up). In other words, when a defendant chooses to testify, he cannot then use 
the Fifth Amendment as a shield to protect him from being questioned.     
Applying those principles to the context of psychiatric testimony based on an 

examination of the defendant, if the defendant chooses to introduce psychological tes-
timony from an expert who has examined him, the defendant cannot then use the 
Fifth Amendment to shield himself from being examined and questioned by a govern-
ment expert. As the Supreme Court stated, the State may “permissibly follow[] where 
the defense le[ads].” Cheever, 571 U.S. at 95. And there is no reason that the under-
lying fairness and truth-seeking principles discussed in Cheever would be limited only 
to instances in which psychological evidence is used to argue that the defendant 

lacked the requisite mens rea to commit the crime, rather than on some other dis-
puted fact—like the believability of an admission. Instead, it is reasonable to conclude 
that the goals of fairness and of arriving at the truth require that when a defendant 
introduces testimony from a psychologist who has examined him to cast doubt on the 
credibility of the defendant’s admissions, the government must have a chance to ex-
amine the defendant with an expert of its own. Thus, the Illinois Appellate Court 

correctly—or at the very least reasonably—applied Cheever to conclude that the trial 
court did not violate Comier’s right against self-incrimination. State Court Op. at 12–
14.                                                                       
Finally, Comier argues that to adequately rebut Dr. Frumkin’s testimony, the 
State could have merely had its expert review Dr. Frumkin’s notes from his exami-
nation of Comier. Habeas Pet. at 41–44. Thus, Comier contends that the trial court 
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did not need to condition Dr. Frumkin’s testimony on the State’s expert personally 
examining Comier. Id. But this too was no error. Before the trial court decided that 
Comier would have to submit to an interview in order to introduce Dr. Frumkin’s 

testimony, the State’s expert did attempt to form an opinion based only on reviewing 
Dr. Frumkin’s notes. State Court Op. at 5. But the expert told the trial court that he 
could not properly evaluate Comier’s mental state without personally examining him. 
Id. So the trial court then reasonably decided that the State expert should be permit-
ted to examine Comier. Id. And that decision is also supported by Supreme Court 
precedent. In Cheever, the Court expressly stated that the government’s “only effec-
tive means of challenging” a defendant’s evidence from a psychological expert who 

has examined him is through “testimony from an expert who has also examined him.” 
Cheever, 571 U.S. at 94 (cleaned up). Limiting the State’s expert to only reviewing 
Dr. Frumkin’s notes would thus have prevented the State from effectively challenging 
Comier’s evidence. Again, the trial court did not err and no constitutional violation 
occurred. Comier’s habeas petition is thus denied.                        
                     III. Conclusion                                 

Comier’s petition for writ of habeas corpus, R. 1, is denied. A certificate of ap-
pealability is also denied. To obtain a certificate of appealability, Comier must make 
“a substantial showing of the denial of a constitutional right,” 28 U.S.C. § 2253(c)(2), 
such that “reasonable jurists would find the district court’s assessment of the consti-
tutional claims debatable or wrong,” Slack v. McDaniel, 529 U.S. 473, 484 (2000). 
Comier’s constitutional claim here is not a close call. Cheever held that when a 
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defendant introduces evidence through a psychological expert who has examined him, 
the government must also be allowed to introduce testimony from an expert who has 
examined the defendant. Cheever, 571 U.S. at 94–95. The Illinois Appellate Court’s 

application of that holding to the analogous context here does not come close to an 
unreasonable application of Supreme Court precedent, whether the right against self-
incrimination or the right to present a complete defense. So there is little doubt that 
the trial court’s evidentiary decision did not violate Comier’s constitutional rights. 
Thus, a certificate of appealability is not warranted.                    
                                   ENTERED:                          

                                        s/Edmond E. Chang            
                                   Honorable Edmond E. Chang         
                                   United States District Judge      

DATE: March 25, 2025                                                      









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