Burris v. Parke

• Decision Date: 26 December 1996
• Docket Number: No. 3:95-CV-0917 AS.,3:95-CV-0917 AS.
• Parties: Gary BURRIS, Petitioner, v. Al C. PARKE, Respondent.
• Court: U.S. District Court — Northern District of Indiana

Page 1310

948 F.Supp. 1310

Gary BURRIS, Petitioner, v. Al C. PARKE, Respondent.

No. 3:95-CV-0917 AS.

United States District Court, N.D. Indiana, South Bend Division.

December 26, 1996.

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Alan Freedman, Bruce Bornstein, Gary Prichard, Freedman and Bornstein, P.C., Chicago, IL, for petitioner Gary Burris.

Geoffrey Slaughter, Geoffrey Davis, Office of the Attorney General, Indianapolis, IN, for respondent Al Parke, Superintendent, Indiana Attorney General.

MEMORANDUM AND ORDER

ALLEN SHARP, Chief Judge.

Nearly seventeen years after committing the crime for which he was found guilty and sentenced to death, and after an abundance of state and federal review, the petitioner, Gary Burris ("Burris"), now returns to this court for the third time pursuant to a petition for writ of habeas corpus under 28 U.S.C. § 2254. The petition now before this court is Burris's second § 2254 petition and was originally filed on November 14, 1995. This second petition has already taken one extended tour of the Seventh Federal Circuit. Now, pursuant to the order of the United States Court of Appeals for the Seventh Circuit dated September 12, 1996, see Burris v. Parke, 95 F.3d 465 (7th Cir.1996), this court is required to address the merits of Burris's second federal habeas petition. In furtherance of the Seventh Circuit's mandate, this court held oral argument on this petition in Lafayette, Indiana, on November 18, 1996. This memorandum will follow up on the proceedings held in open court in Lafayette on November 18 and deal with the issues that were there presented.

I. FACTUAL BACKGROUND

The facts underlying Burris's death sentence now before the court were succinctly summarized by the Supreme Court of Indiana on direct appeal of his felony murder conviction and first death sentence. The Supreme Court of Indiana found the facts underlying Burris's guilt to be as follows:

The evidence most favorable to the State reveals that on the morning of January 29, 1980, Gwen Tevebaugh and her neighbor, Calvin Howard, discovered the body of a dead man in an alley in the 3200 block of East Fall Creek Parkway in Indianapolis. Tevebaugh had been awakened earlier that morning by a noise and then heard what she clearly knew to be a gunshot. Tevebaugh was not able to see anything because of the darkness but she noted the time of 2:23 on her clock.

After Mr. Howard phoned the police, Sergeant Donald Campbell and Officer Jon Layton received the dispatch on the homicide. Upon arriving at the alley, the two men discovered the body, nude except for a pair of socks, lying face down and stuck to the ground by a pool of its frozen blood. Identification found at the scene showed that the deceased was Kenneth W. Chambers, age 31. The police also noticed what appeared to be a small caliber gunshot wound to the right temple.

Elizabeth Gardner, a dispatcher for the Northside Cab Company, identified Chambers as a driver for the company. Chambers drove Cab 305. On the morning of January 29, 1980, both Chambers and Gardner were working. Around 1:30 a.m. Gardner received a call for a cab to pick up fares at the 1800 block of North College. Gardner put a request out for a cab and Chambers responded that he would take the call. Both parties stipulated that a call to Northside Cab was received at 1:48 a.m. for transportation from 1821 North College to 1501 East 38th and that this call was assigned to Cab 305. The call was made by a person identified as "Williams."

1821 North College is the address of the M & J Social Club where Thelma Williams was employed as a barmaid. Williams testified that she telephoned the cab company at the request of defendant Burris. Williams said she knew the defendant and stated he usually ran around with two other men, named "Emmet" and "James." As Williams recalled, Emmet was with Burris at the M & J Social Club on the morning of the murder. Williams assumed the cab arrived within fifteen minutes of her call because Burris left at that time.

Carol Wilkins was another witness called by the State. At the time of the murder, Carol Wilkins was living at 1827 North College above the M & J Social Club. Carol stated that defendant Burris rented the apartment and that he was dating her sister, Debra Wilkins. On January 28, the day before the murder, the defendant arrived at the apartment around 5:40 p.m. Carol testified that James Thompson and Emmet Merriweather joined the defendant. Burris had told Carol that he had a deadline to pay $230 back rent and telephone bills. That evening when Burris left the apartment, he put a .38 pistol in his pocket. Carol identified State's Exhibit 16 as being similar to the .38 pistol.

Later, Burris, Merriweather, and Thompson returned to the apartment. Burris was carrying a clipboard with a paper on it, which he tossed on the bed. Carol had ridden in taxicabs before and recognized the paper on the clipboard as a cab driver's run sheet. The defendant burned the run sheet and flushed the remains down the toilet.

Merriweather and the defendant then had a dispute over a gun. The defendant wanted to give Merriweather the gun but Merriweather refused to take it. The defendant kept the gun. Carol also saw that the defendant had quite a bit of money. There were two wads of money, big enough to create a noticeable bulge in both of the defendant's front pockets. Carol later heard about the cab driver who had been shot and she put the pieces together.

After some police investigation, Emmet Merriweather and James Thompson were arrested in connection with the death of Chambers. Both men, along with other sources, informed the police that the defendant was with them at the time of the murder. Acting upon information that defendant Burris was at Debra Wilkins' apartment and planned to leave town, the police moved quickly and arrested Burris at 2035 North Meridian in Indianapolis. A search of the apartment revealed that a sawed-off shotgun and a .38 pistol were hidden in a stereo speaker. A member of the Indianapolis Police Department Crime Lab testified that the .38 pistol was used to kill Chambers. This witness, during the penalty phase of the trial, also testified that the pull of the pistol's trigger made it a little harder to shoot than an average weapon. The gun had no observable mechanical defect and did not exhibit any propensity for accidental discharge.

A pathologist, Dr. Robert Ransburg, testified that the body had a gunshot entrance wound in the right temple. Dr. Ransburg stated that the wound was a "contact wound." By this he meant that the muzzle of the gun would have had to have been held against the temple to create such a wound. Other forensic specialists testified that the victim's blood type and the bloodstain on the recovered .38 pistol were both type A.

One of the chief witnesses for the prosecution was William Allen Kirby. Kirby had shared a cell with defendant Burris in the Marion County Jail where the defendant admitted his involvement and culpability in the murder. Kirby agreed to testify against the defendant and recounted the defendant's story as follows: The defendant and his friends were in need of money. They entered a dance contest but failed to win anything. They took a cab to the "M & L Club" (Kirby said he was not sure "M & J Social Club" was what the defendant said but he knew the name was alphabetical) and on the way to the club, the defendant saw an envelope containing money on the front seat of the cab. Kirby asked why the men did not take the money at that time. The defendant replied they were not prepared to do so because they did not have their "roscoes" (pistols).

Inside the "M & J Social Club" the defendant said to his friends that he was ready to get some "paper" (money). Defendant Burris told his accomplices that he would kill during the robbery if that would keep him out of prison. Burris went up to his apartment, picked up a pistol, and had Thelma Williams call for a cab.

After the cab arrived, the defendant and the other two men told the driver to proceed to 21st and Alvord. After proceeding only a couple of blocks on 21st, the three men drew their pistols, forced the driver to call in that his run was completed, and ordered the driver into the back seat. The cab was driven to an alley off 34th Street where the cab driver's clothes were thrown out. Then, in an alley between Guilford and Fall Creek Parkway, the driver was forced out of the cab. The driver pleaded for his life, saying, "Man, take the money, take the cab, leave me alone, I'm not going to bust you, you know, I'm a street fellow, too." This plea for mercy had no effect on the defendant. The victim's hands were bound and then the defendant shot Chambers in the head. The defendant told Kirby he used .38 hollow point shells because he thought they would explode on impact and thus leave nothing that could be identified through ballistics.

Burris v. State, 465 N.E.2d 171, 175-77 (Ind. 1984), cert. denied, 469 U.S. 1132, 105 S.Ct. 816, 83 L.Ed.2d 809 (1985).

II. PROCEDURAL HISTORY

As Justice Fortas once wrote, "a habeas corpus proceeding must not be allowed to founder in a `procedural morass.'" Harris v. Nelson, 394 U.S. 286, 291, 89 S.Ct. 1082, 1086, 22 L.Ed.2d 281 (1969) (quoting Price v. Johnston, 334 U.S. 266, 269, 68 S.Ct. 1049, 1052, 92 L.Ed. 1356 (1948)). Upon review of the extensive record in this case, it appears that Justice Fortas's admonition has not been adhered to. This case began in late January 1980 when Burris was arrested for the murder of Kenneth Chambers, an African-American taxi driver from Indianapolis, Indiana. The State of Indiana sought the death penalty in Burris's case because the murder was an intentional killing committed in the course of a robbery. See IND.CODE §§ 35-50-2-9(a), (b)(1)(G). On December 4, 1980, a jury in the Superior Court of Marion County convicted Burris for the felony murder of Kenneth Chambers. The...