Garth v. Davis

• Citation: 470 F.3d 702
• Decision Date: 11 December 2006
• Docket Number: No. 05-3084.,05-3084.
• Parties: Faraji Omar GARTH, Petitioner-Appellee, v. Cecil DAVIS, Superintendent of the Indiana State Prison, Respondent-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)

Page 702

470 F.3d 702

Faraji Omar GARTH, Petitioner-Appellee, v. Cecil DAVIS, Superintendent of the Indiana State Prison, Respondent-Appellant.

No. 05-3084.

United States Court of Appeals, Seventh Circuit.

Argued February 21, 2006.

Decided December 11, 2006.

COPYRIGHT MATERIAL OMITTED

Matthew B. Burke (argued), Mayer, Brown, Rowe & Maw, Chicago, IL, for Petitioner-Appellee.

Andrew K. Kobe (argued), Office of the Attorney General, Indianapolis, IN, for Respondent-Appellant.

Before BAUER, KANNE, and ROVNER, Circuit Judges.

KANNE, Circuit Judge.

Faraji Omar Garth ("Garth") was convicted of robbery and of being an accomplice to attempted murder. The State alleged that Garth and his brother, Ahman Garth ("Ahman"), along with two others, robbed a convenience store and attempted to kill the clerk. After his conviction was affirmed on direct appeal, Garth filed a petition for relief in federal court under 28 U.S.C. § 2254 claiming that the jury instruction given at the state trial, regarding attempted murder, violated due process. The district court granted Garth's petition. We believe that § 2254 relief was improvidently granted, and therefore, reverse.

I. HISTORY

A. State's Evidence

At Garth's trial, the State presented evidence supporting the following facts. Late in the evening on August 21, 1997, Garth, his brother Ahman, and two other men entered the convenience store of a gas station in Evansville, Indiana. Garth frequently came to this store so the employee on duty, James Hardy, recognized him as a customer. But Garth and his cohorts had no intention of buying anything this night. As Hardy later testified to at Garth's trial, Ahman quickly brandished a gun and attempted to rob the store. A car pulling into the parking lot startled the robbers and Ahman ordered Hardy to turn the store's lights off at the circuit breaker. To show that he meant business, Ahman hit Hardy in the back of the head with the gun. Hardy got the message and disengaged the circuit breaker. The lights went off, but an unintended consequence was that Hardy could no longer open the electronic cash register.

As Hardy testified to at trial, Ahman then forced Hardy into a back room, believing a safe was there. While in that room, Ahman again hit Hardy with the gun, knocking him unconscious. Hardy awoke to the men punching and kicking him. Hardy testified that Garth was one of the men beating him, but also said he could not be sure. Hardy then testified that Ahman forced him into a chair, put the gun to his head and pulled the trigger. The gun did not fire. Twice Ahman removed the gun's magazine, banged it on a table, placed it back into the gun, and tried to shoot Hardy in the head. Fortunately, the gun would not fire. After the third pull of the trigger, the police arrived and the robbers fled. Ahman was quickly arrested in front of the store after dropping his gun, which was recovered. Garth got away but was later arrested and identified by Hardy.

Part of the State's evidence was Garth's testimony at the earlier trial of codefendant Leo Johnson. At Johnson's trial, as the jury in Garth's trial heard, Garth admitted that he planned to rob the convenience store along with his brother and two other persons. At Johnson's trial, Garth also admitted that Ahman pointed a gun at Hardy's head.

B. Defendant's Testimony

Garth testified at trial, and his testimony is essential to our resolution of this appeal. Therefore, we will recite it in detail, including all references to his intent the night of the crime, as well as all references to any attempt to kill Hardy. To begin, his testimony at Johnson's trial provided some difficulties for Garth because he now wanted to say that Ahman did not point a gun at Hardy's head. He explained to the jury that when he testified at Johnson's trial he lied in part in the hope of pleasing the State and garnering a deal.¹ He further explained that a portion of his testimony regarding Ahman attempting to kill Hardy was a lie. According to Garth:

So upon testifying, I gave them the statement that said my brother did point the gun at the witness, and that is untrue.

S.C.R. at 625.

After further testimony about why Garth lied under oath, Garth and his attorney engaged in the following colloquy:

Q: Did you ever ... were you present in a back room at a time when Ahman ... was pointing and clicking a gun at Mr. Hardy's head?

A: I testified that I was, but in truth, it never happened. My brother never tried to kill that man.

Q: Is there anything else that you would like to tell the Court, and the jury, or us at this time?

A: I'll admit that I was there, and I did agree to rob the store with my brother and two friends of mine, that I was there when money was taken, and I was there when the witness was attacked, but I didn't lay my hands on that man, and also, my brother didn't try to kill that man. What that man's saying is not true.

S.C.R. at 626-27. This concluded Garth's testimony on direct.

On cross-examination, the State began by attacking Garth's credibility, and confirming Garth's admission that he, Ahman, and two others robbed the convenience store. Garth also admitted that he would be easily recognized by Hardy:

Q: In fact, James Hardy, the clerk that night, had waited on you many, many times, isn't that true?

A: Yes. It is.

Q: So many times that you could recognize him, and he could recognize you, isn't that true?

A: Yes. He could. And yes. I could.

S.C.R. at 633. The cross-examination then turned to Ahman's use of a gun:

Q: You testified in the Leo Johnson trial that before you went to rob the store, you knew your brother, Ahman, had a gun, isn't that true?

A: Yes. I did.

. . .

Q: In fact, you were shown ... Exhibit 8?

A: Yes. Just like that. Yes.

Q: You identified [Exhibit 8] as the gun your brother had, at that trial, true?

A: Yes. It was.

Q: You knew your brother, Ahman, was bringing the weapon into the store before you committed the robbery, isn't that true?

A: Yes. He did tell me he had a gun.

Q: And once inside the store, you did see your brother holding the gun, didn't you sir?

A: Yes. I did.

Q: And in fact, once inside the store, you saw him displaying the gun throughout the store, isn't that true?

A: No. I testified that he did, but he pointed it to him, and told him to get into the back. That was the only time he pointed a gun at that man.

Q: I couldn't hear you. What's that?

A: The only time he pointed the gun at that man was when he told him to get into the back. That was all. It was basically around his waist area.

Q: So you're admitting to this jury, today, that you saw your brother point the gun at James Hardy, isn't that correct?

A: Yes. He did point the gun at him, or in his general direction.

Q: And in fact, sir, isn't it true that you saw him point it at James Hardy's head in the back room?

A: No. It is not true.

S.C.R. at 635-37. The State then impeached Garth with his testimony at Johnson's trial where Garth related that he saw the gun pointed at Hardy's head. When asked why he made that statement, which he now denied, Garth answered:

A: Yes. That was a statement that was necessary in order for the Judge to accept my plea, so I gave it. I lied under oath.

S.C.R. at 637. After some discussion of why Garth was willing to plead guilty to attempted murder and robbery, the following colloquy occurred:

Q: And you walking into a trial of Leo Johnson, and said you saw your brother try to kill James Hardy, but today you're telling this jury that you didn't see your brother kill James Hardy, is that correct?

A: I told them ...

Q: Or try to kill him?

A: Yes. I told the Court that I did see him point the gun at his head, which was untrue. He never did that.

S.C.R. at 642. The State then moved on to who Garth's two friends were, but Garth maintained that he did not know the identities of the two men he and his brother robbed the store with because he only knew their nicknames.

Garth's counsel then began re-direct, attempting to elicit why Garth was initially willing to plead guilty. Garth answered:

A: At the time, it was all ... I was all concerned about the time. The time was a big deal, but now I can't sit here and say that my brother tried to kill this man, because it's not true, and I'm willing to take the risk now to go to trial, and prove so.

S.C.R. at 650. Garth's counsel then concluded his re-direct with the following colloquy, focusing on Garth's intent on the night of the robbery:

Q: Was it your intention, at any time, to harm the attendant at the store?

A: No. I never touched that man.

Q: Would you have taken part in that robbery if anyone else had voiced intention to you about murdering this attendant?

A: No.

S.C.R. at 651. The State's re-cross immediately focused on Garth's love for his brother, and quickly concluded:

Q: And you're telling us today that your brother never tried to kill that man, James Hardy, isn't that true?

A: Yes.

S.C.R. at 653.

C. Closing Arguments

During closings, neither the State nor Garth focused on intent. Garth's counsel attempted to point out inconsistencies, including those in Hardy's testimony:

How can you click a gun that's got a live round in its chamber, that's cocked, it's loaded like this, and nothing's going to happen with it, and then Mr. Hardy says he heard that three times, you know, and was sure about the sound that he heard. I just don't think it's possible. I don't know what he heard back there at that, but I don't think he heard somebody clicking that gun three times at his head. I think it's probably fortunate that he didn't hear that. Very fortunate, because then we ... he wouldn't be here, and that would be unfortunate. What happened was unfortunate, but what's even more unfortunate of this whole scenario is the fact that the only evidence we have that hinges this ... the attempted murder charge of this young man over here is Mr. Hardy's confused recollection of what went on...