Garner v. Hutchings

• Decision Date: 28 June 2021
• Docket Number: 2:15-cv-02430-JCM-DJA
• Parties: EDWARD EUGENE GARNER, Petitioner, v. WILLIAM HUTCHINGS, et al., Respondents.
• Court: U.S. District Court — District of Nevada

EDWARD EUGENE GARNER, Petitioner, v. WILLIAM HUTCHINGS,¹ et al., Respondents.

2:15-cv-02430-JCM-DJA

UNITED STATES DISTRICT COURT DISTRICT OF NEVADA

June 28, 2021

ORDER

This represented habeas matter under 28 U.S.C. § 2254 comes before the court for a decision on the merits.

Background

Petitioner Edward Eugene Garner ("petitioner" or "Garner") challenges his 2010 Nevada state conviction, pursuant to a jury verdict, of robbery with the use of a deadly weapon. He was adjudicated a habitual criminal and is serving a sentence of life with parole eligibility after a minimum of ten years served. (ECF No. 17-7.)

The claims and issues presented involve, inter alia: (a) review of a harmless-error determination by the state supreme court following a failure to give a defense instruction restating the elements of the offense in negative phrasing ("if you find that the state doesnot prove . . .); and (b) a claim of ineffective assistance of trial counsel based on counsel's failure to challenge the reliability of the eyewitness identification in the case.

The court summarizes below trial evidence and related state court record material that serves as backdrop to its consideration of these and other issues in the case.²

Around midnight on or about February 24, 2010, Shane Stewart was driving north on Pecos Road in Las Vegas, Nevada. He had an issue with one of his tires and pulled into a convenience store parking lot at Pecos and Russell Road. He determined that he would not be able to drive the vehicle home, and he was unable to reach anyone to pick him up. He started walking north on Pecos, planning to either catch a late running bus or if not walk all the way home. (ECF No. 16-26, at 14-19, 47-48 & 59-60.)

According to Stewart's trial testimony, as he was approaching the intersection at Pecos and Tropicana Avenue walking on the west side of Pecos, he saw two men standing at a bus stop diagonally ahead of him to the north across Tropicana and on the east side of Pecos. The bus stop where the men were standing was out in front of Kelly's Pub. As or after Stewart crossed Tropicana and continued walking north on the west side of Pecos, one of the men yelled from across Pecos asking for a cigarette. Stewart replied that he did not smoke and kept walking. He thereafter heard footsteps running up behind him coming diagonally from across the street, and a voice calling for him to wait and angrily berating Stewart for having to chase him. (Id., at 19-25 & 48-49.)³

When Stewart stopped and turned around, the man who had asked for a cigarette was coming toward him from then about ten to fifteen feet away. Stewart testified that he got a look at the man's face and what he was wearing. The man asked Stewart for money in an aggressive and angry tone, initially asking for a couple of dollars. Stewart said that he did not have any money and kept walking, but the man continued to follow him repeatedly asking for money. (Id. at 19-31.)

According to his testimony, Stewart eventually stopped again and faced the man. He first asked Stewart whether he "wanted to party." After Stewart declined, the man then told him that he wanted to show him something. The man then pulled a handgun from his backpack. It appeared to be a "dark color type, blackish . . . metallic type" semiautomatic, "the ones that have clips;" and it looked like a real gun to Stewart. The man was not holding the gun in a shooting position with his finger near the trigger. The man either put the gun back in his backpack or otherwise kept it out of view, as Stewart did not see the gun again thereafter during the incident. (Id., at 31-35, 49-52 & 56-58.)

According to his testimony, Stewart started to walk away again. By this point, the two men were in a more residential, and thus more secluded, area on Pecos to the north of the commercial locations back at the intersection with Tropicana. The man followed Stewart, talking to him in an angry and aggressive manner, "trying to convey to [Stewart] that he was a tough guy" and to intimidate Stewart. The man then got in front of Stewart, jumping around "like a boxer;" and he blocked Stewart from walking any further, boxing him in. He told Stewart that he had "better come up with twenty dollars or you're going to get hurt or you're going to get shot." The man then put his hand up against Stewart's face, making physical contact and further intimidating him. Stewart felt that the man was going to shoot him if he did not give him his money. (Id., at 35-4, 52-54 & 57-59.)

Stewart testified that he told the man that he did not have twenty dollars and that the money in his wallet was all that he had. Stewart pulled out his wallet, and the man reached into the wallet and took a five dollar bill and "a few" ones. The man then ran south on Pecos, back toward the intersection with Tropicana. (Id., at 41-43, 54-55 & 59.)

At the next intersection to the north on Pecos, Stewart turned the corner out of sight to the south on Pecos and called 911 on his cell phone. He reported the robbery and gave a description of his assailant. Stewart placed the call "[t]hree minutes, three to five; five at the most" after the robbery; and he told the 911 operator that he could see a patrol officer in the area as he was making the call. (Id., at 43-46 & 55.)

Officer Derek Jappe with the Las Vegas Metropolitan Police Department ("Metro") testified as follows. When he received the initial dispatch at approximately1:09 a.m., he was around the Harmon and Mountain Vista area, which is to the east and north of Pecos and Tompkins. Officer Jappe arrived at Stewart's location at 1:12 a.m. Stewart gave Officer Jappe the same description that he had given to the 911 operator and that had been sent out in the initial dispatch. Both times, Stewart described the assailant as an African-American male wearing a red "do-rag" (head cover) and a black jacket, who was carrying a black backpack, and who robbed him with a gun. Stewart told Jappe that the man had run south on Pecos after the robbery. Officer Jappe immediately broadcast all of this information to other patrol officers. (Id., at 61-64 & 67-72.)

Metro Officer Jason Rapozo testified as follows. At 1:16 a.m., approximately seven minutes after the initial 1:09 a.m. 911 call and dispatch, he observed an individual heading south at Pecos and Tropicana that he believed matched the dispatch description. The individual was an African-American male wearing a red do-rag carrying a black backpack. Rapozo observed no other individuals in the area matching the description. Officer Rapozo stopped the individual, who he identified at trial as petitioner Garner. (Id., at 73-83, 90-91 & 94.)

The testimony, collectively, of Stewart and the two officers reflects that Officer Jappe brought Stewart the short distance over to Officer Rapozo's location for a one-on-one showup. Jappe told Stewart beforehand that the officers did not want him to identify the wrong person and to focus on facial expression and how the person looked because people sometimes change clothes. In the showup at Officer Rapozo's location, Stewart positively identified Garner as the man who robbed him, with Stewart being seated inJappe's patrol vehicle during the showup. Stewart was "100 percent" certain in the identification at the time of the showup and had "no doubt" as to the identification at trial. (Id., at 25-26 & 46-47 (Stewart); id., at 64-67 & 69-70 (Jappe); id., at 83 (Rapozo).)

Officer Rapozo testified that he then, inter alia, asked Garner whether he had any weapons on him. Garner responded that he may have a BB gun in his bag. After first obtaining Garner's consent, Officer Rapozo searched Garner's backpack. Rapozo initially could not find a gun after searching the main compartment and a second compartment. He then located an additional zippered compartment, where he found a black BB gun and eight dollars, consisting of a five and three ones.⁴ The gun and currency were together in that compartment without anything else being in the compartment. Garner, who had been within earshot of the police radio after being stopped by Officer Rapozo, then stated to Rapozo that they had the wrong guy because there were eight dollars rather than seven. Stewart's report that the assailant had stolen seven dollars previously had been broadcast on the police radio. (Id., at 83-90 & 91-93.)

The BB handgun was styled to look like a real M1911 type pistol. The gun was capable of firing BBs. When Rapozo recovered it, the gun was loaded with BBs and Garner had a CO2 cartridge (the gun was gas operated) with the gun. (Id., at 86-87 & 89-90 (Rapozo); id., at 113-16 & 118-22 (forensic firearms examiner).)

The police took pictures of how Garner appeared when he was stopped and taken into custody, including at the time of the showup. Stewart confirmed at trial that that was how his assailant was dressed at the time of the robbery. Further according to his testimony, the gun in evidence looked similar to the gun that Garner had; and there was nothing about the gun in evidence that was different from the gun that he saw then. (Id., at 27-28 & 36 (Stewart); id., at 90 (Rapozo); see also, id., at 141-43 (description of photos by counsel during argument).)

At the February 26, 2010, initial arraignment following Garner's arrest, the justice court scheduled a preliminary hearing for March 12, 2010. On March 8, 2010, defense counsel filed a motion for corporal lineup, i.e., to see if Stewart could positively identify Garner as his assailant from a physical lineup consisting of other males with similar physical characteristics. When the motion came on for hearing, however, counsel orally withdrew the motion so that it would not interfere with the preliminary hearing, which he wanted to proceed as scheduled. At approximately the same time, defense counsel gave the state and the district court a Sargent notice, i.e., a notice that Garner was waiving his personal appearance at the preliminary...