Sims v. Hyatte

• Decision Date: 27 November 2018
• Docket Number: No. 18-1573,18-1573
• Citation: 914 F.3d 1078
• Parties: Mack A. SIMS, Petitioner-Appellant, v. William HYATTE, Respondent-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

914 F.3d 1078

Mack A. SIMS, Petitioner-Appellant,

v.William HYATTE, Respondent-Appellee.

No. 18-1573

United States Court of Appeals, Seventh Circuit.

November 27, 2018

Decided February 1, 2019

Rehearing and Rehearing En Banc Denied March 4, 2019

Marc M. Barnett, Attorney, MARC M. BARNETT & ASSOCIATES, Chicago, IL, for Petitioner-Appellant.

Andrew A. Kobe, Kelly A. Loy, Attorneys, OFFICE OF THE ATTORNEY GENERAL, Indianapolis, IN, for Respondent-Appellee.

Before Bauer, Hamilton, and Barrett, Circuit Judges.

Bauer, Circuit Judge.

Petitioner-appellant Mack Sims seeks a writ of habeas corpus, arguing his due process rights were violated because the state withheld evidence favorable to his case. In November of 1993, security guard Shane Carey was shot in Elkhart, Indiana. Approximately fifteen to twenty minutes after the shooting, the Elkhart police found Mack Sims near a walking path around twenty feet from where the shooting occurred. After Carey identified him at trial as the shooter, Sims was convicted of attempted murder and sentenced to a term of imprisonment of 35 years. In 2012, during a post-conviction evidentiary hearing, Sims learned the prosecution withheld evidence that Carey, the only witness who could identify the shooter, was hypnotized before trial to enhance his recollection of the shooting. After the Indiana courts denied habeas relief, Sims filed a petition for a writ of habeas corpus in federal court. The district court held that the Indiana court did not unreasonably apply established federal law and denied the petition. Because we disagree, we reverse.

I. BACKGROUND

A. The Night of the Shooting

In September of 1993, Shane Carey began working as a security guard at Sister Virginia's Adult Basic Education ("Sister Virginia's") in Elkhart, Indiana. On November 2, 1993, the school was in session when Carey arrived for his shift at 6:00 p.m. Shortly after arriving he traversed the premises and returned to his car to read a book after he was satisfied the school was safe. Sister Virginia's parking lot, where his car sat, had some lighting but was not well lit.

Around 7:00 p.m., Carey noticed three black men walk behind a nearby building and emerge in the parking lot a few minutes later. The men walked toward Carey's vehicle; two walked to the passenger side and one to the driver's side. When about two feet from the car the individual walking towards the driver's side door grabbed a gun from his coat and fired it through the window. Carey did not see the gun, but soon realized he had been shot in the face. He made his way into Sister Virginia's and emergency help was summoned. Carey testified at trial that the shooting took place "shortly after 7:00 [p.m.]."

Officers Tom Lerner and William Wargo arrived on the scene at 7:27 p.m. Lerner instructed Wargo to secure Carey's vehicle and the area around it while he entered Sister Virginia's to speak with Carey. Carey was having difficulty speaking but was able to provide Lerner with a description of the assailant as a black male with short hair or a shaved head and a large build, possibly in his late twenties, wearing a three-quarter-length coat with dark pants and dark combat boots.

At approximately 7:30 p.m. while standing near Carey's car, Officer Wargo heard a noise near the train tracks about twenty-five feet southeast of Carey's vehicle. Wargo then observed a black male crouching behind a dumpster wearing a black three-quarter length jacket and hat looking onto the crime scene. This individual was near a walking path that ran next to the train tracks and was often used by locals. The officers ordered the subject out of the bushes and he came forward without protest. They identified this individual as Mack Sims and patted him down for weapons; none were found.

Although there were civilian witnesses in the area, none were able to give an identifying description of the shooter. Police officers searched the surrounding area extensively but never found a gun, nor did they recover a shell casing from the area or any other physical evidence.

B. The Trial of Mack Sims

On November 4, 1993, Sims was charged with attempted murder. His trial began on August 23, 1994. The prosecution called ten witnesses: six were law enforcement officers that described their role in the investigation and three were individuals present at Sister Virginia's the night of the shooting that were unable to identify the shooter. Thus, the state relied almost exclusively on the only witness who could possibly identify the shooter, Carey, to establish their case against Sims.

Carey testified that he got a good look at the assailant. He described in court what he saw the night of the shooting in more detail than was in the incident report:

Q: Now, as he approached the car, did you get a look at him?

A: Yeah. I was looking him square in the eyes.

Q: Describe what you saw.

A: What I saw was a man with—it was a somewhat full face, well—I'd say a well-rounded face. What I mainly noticed was the eyes. And I noticed underneath the left eye the skin tone, I'd say, or shades were slightly different than the other. One side just underneath the eye was a little bit lighter and the other side was very dark. And I noticed—I did notice the eyes. It was a very cold stare.

Q: Did you see him reach for anything?

A: I saw him make a hand movement, and that's about it. I saw a flash but nothing more.

Q: Okay. Do you recognize in this courtroom today the person you saw and who shot you on November 2nd, 1993?

A: Yes, I do.

Q: Where is he?

A: He's sitting right there in front of me (indicating).

Mr. Wicks [ the prosecutor]:

I would ask the record reflect the witness has identified the defendant, Mack Sims, Your Honor.

The Court:

Let the record reflect the witness has identified the defendant.

Carey continued to describe the assailant,

I noticed the shoes looked somewhat like boots, I would say, and dark color pants. What I mainly noticed was the coat. The coat was slightly long and dark in color, either a dark black or maybe bluish or—like a Navy or midnight blue or something to that extent. One of the things I did notice on the coat was a patch on the arm ... It was a small patch. I didn't really get a good look at the shape, but it couldn't have been more than a couple inches in diameter.

Carey then observed the coat Sims was wearing when he was arrested and identified a patch on it as being the one he witnessed when the assailant approached his vehicle. Carey also testified that detective John Faigh came to speak with him at the hospital the day after his surgery. He recalled being presented with six photos. Carey chose a photograph from this lineup noting that the picture "looked like" the assailant. Carey then identified in court the photograph of Sims that he picked out of that lineup.

During cross-examination defense counsel pointed out that Carey's identification of the assailant in the photographic lineup was not unequivocal. Carey indicated that he had unequivocally identified the assailant in a photographic lineup that appeared nowhere in the record:

A: The identification that I was provided with in the emergency room was [unequivocal]. They did show me something in the emergency room. It was difficult to see, but what I did see, that was him.

Q: Oh, there was another picture that was shown to you?

A: There was another picture in the emergency room.

Q: There is nothing in the reports about that: is that correct?

A: Not that I know of.

Carey was then asked about a situation shortly before trial in which he was unable to identify the assailant in a photographic lineup:

Q: And you also recall, maybe even last week, looking at a photo lineup when Mr. Wicks was around?

A: Uh-huh.

Q: And you again said that it looks like but you couldn't be sure because of some facial hair?

A: Yeah, the facial hair did throw me off, but I will not forget the eyes. The eyes are the one thing that I do remember.

Q: Now you indicated—yeah, you have talked about the eyes, but you didn't say anything in your statement about the eyes.

A: That's the one thing that I do remember.

Q: But you didn't tell the police about it at the time?

A: No. But like I said, I was also very groggy.

Sims later testified and his mug shot showed that he had facial hair, a mustache and goatee, at the time he was arrested.

Additionally, Carey testified that the photograph of Sims in the emergency room that was not part of the record was shown to him by itself and not as part of a photographic lineup:

Q: And you indicated now that there was another picture that you were shown, a single picture you were shown, in the emergency room?

A: I was shown that in the emergency room. If I recall, my—my parents were in the emergency room, but I'm not sure if they were in there when they showed me this picture. They did show me a picture in the emergency room.

Carey stated the lighting in the parking lot was "somewhat—subdued would be the word I'd use, somewhat faint." Carey also testified that he was not wearing his glasses the night of the shooting, although his vision was not so poor that he was required to wear them to drive.

Defense counsel impeached Carey regarding inconsistencies in his description of the assailant. The defense pointed out that the description of the assailant included that he had short hair or was bald. However, Sims later testified that his hair was not short or shaved but was curly and longer at the time he was arrested. The defense pressed Carey on his description of the shoes worn by the assailant. Carey had described the assailant as wearing black combat boots; Sims later testified that he was wearing black and white Nike sneakers. The defense also noted that Carey had indicated the assailant was wearing black pants, but Sims testified that he was wearing blue jeans. The defense asked Carey if there was a hood on the coat, to which Carey responded that his memory had improved over time on the matter: "I recall—I did not recall it at the time. Later on I did recall a hood, and it was...