U.S. ex rel. Partee v. Lane

• Decision Date: 06 September 1991
• Docket Number: No. 90-1302,90-1302
• Citation: 926 F.2d 694
• Parties: UNITED STATES of America, ex rel. Ellis O. PARTEE, Petitioner-Appellee, v. Michael P. LANE and James H. Thieret, Respondents-Appellants.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 694

926 F.2d 694

UNITED STATES of America, ex rel. Ellis O. PARTEE, Petitioner-Appellee, v. Michael P. LANE and James H. Thieret, Respondents-Appellants.

No. 90-1302.

United States Court of Appeals Seventh Circuit.

Argued Sept. 21, 1990.

Decided March 8, 1991.

Rehearing Denied Sept. 6, 1991.

John L. Conlon, Nancy Ellen Zusman, Kathleen Burch, Hopkins & Sutter, Chicago, Ill., Jean Hendren Ceddia, Riverwoods, Ill., David A. Upshaw, Indianapolis, Ind., for petitioner-appellee.

Mark L. Rotert, Asst. U.S. Atty., Neil F. Hartigan, Atty. Gen., Steven J. Zick, Crim. Appeals Div., Chicago, Ill., for respondents-appellants.

Before BAUER, Chief Judge, and POSNER and KANNE, Circuit Judges.

BAUER, Chief Judge.

In 1983, a DuPage County jury found Ellis Partee guilty of armed robbery. The trial court entered judgment on this conviction and sentenced Partee to 30 years of imprisonment. After pursuing appeals in the Illinois court system, Partee sought habeas corpus relief in the district court. Partee claimed, among other things, that his trial counsel's failure to subpoena an important alibi witness deprived him of his sixth amendment right to effective assistance of counsel. The district court agreed and granted Partee the writ. For the reasons discussed below, we reverse.

I

On September 19, 1982, an armed man wearing eyeglasses robbed a gas station in Darien, Illinois. When the station was free of customers, the man emerged from his hiding place in the garage area of the station and surprised Cary Kos, the sole attendant on duty. He ordered Kos to empty the cash box into a briefcase he was carrying. The man then pulled out a gun, grabbed Kos, and ordered him to unlock the back office of the station, but Kos did not have the key. The man then fled the station, making off with $300 to $400 dollars. About one month later, Ellis Partee was pulled over for a traffic violation. Partee had in his possession glasses and a briefcase similar to the ones described by Kos as belonging to the robber, so the police seized these items and took Partee's picture for a photographic lineup. The police then brought in Kos, who identified Partee's briefcase and glasses as being similar to the robber's. Kos then was shown an array of five photographs, and he picked out Partee as the man who robbed the station. ¹ Partee was charged with armed robbery, and an assistant public defender was appointed to represent him.

Partee's defense from the outset was that, at the time of the robbery, he was visiting his friend Zernalia Keesee in Joliet, Illinois. The record reveals that Partee's counsel from the public defender's office had some difficulty locating Keesee to substantiate the alibi. After getting at least one trial continuance on account of this difficulty, the assistant public defender ultimately found Keesee and subpoenaed her. ² Thereafter, but prior to his trial, Partee dismissed his appointed counsel and retained Steven Decker, a private attorney, to represent him.

Partee's trial before Judge Bruce R. Fawell of the Circuit Court of DuPage County began on May 9, 1983, and lasted four days. The State introduced evidence of Kos' out-of-court photo identification of Partee, and Kos made an in-court identification of Partee as the robber. Kos stumbled a bit, however; his descriptions of the physical appearance of the robber wavered, both during his trial testimony and in various statements to the police before trial. Decker, Partee's trial counsel, exploited the inconsistencies in Kos' statements. He grilled Kos during cross-examination, and highlighted Kos' waffling in arguments to the court in opposition to the admission of the briefcase, glasses and other State's evidence, and in arguments in support of an unsuccessful motion for judgment of acquittal at the close of the State's case.

In his defense case, Decker presented four witnesses to support Partee's alibi. Partee himself then took the stand. He testified that, on the date of the robbery, he went to Keesee's home in Joliet at about noon and remained there until 4:45 or 5:00pm (the robbery at the gas station in Darien took place at approximately 4:40pm). After leaving Keesee's home, he drove to another friend's home in Joliet, and then on to the home of Donald and Marilee Torrence. He estimated that he arrived at the Torrences' home, which was also in Joliet, between 5:15 and 5:30pm. Both of the Torrences, and the two additional alibi witnesses who were at the Torrences' home that evening, all testified that Partee arrived at the Torrences' at about 5:30pm. Decker also put on evidence that the drive time from the gas station in Darien to the Torrences' home in Joliet was such that Partee could not have robbed the station at 4:40pm and made it to the Torrences' by 5:30pm.

Missing from the list of alibi witnesses was Keesee. Just before Partee was to take the stand, Decker informed the court that he was having trouble locating Keesee. He represented to the court that he had had three telephone conversations with Keesee in the preceding four days, including one the previous afternoon, "instructing" her to come to court:

I informed her that the Torrences would come by and pick her up in the morning.

She said "fine." She had conversations with Mary Torrence yesterday, confirming she would be picked up at 8:30 in the morning. She was not at the location where she said she would be. We have made attempts to contact her at the only number I have for her, as well as the only number that she ever gave the State's Attorney's investigator, which was her place of business. All we can get there today is an answering machine. We have left an innumerable number of messages on that. I sent the Torrences out to Joliet to try and find her. We didn't even know where her exact current residence is, just her work address. I don't know if she's at work.

Transcript of Proceedings Before Judge Fawell ("Trial Tr."), May 11, 1983, at 481-82. Decker then suggested to the court (this all took place outside of the presence of the jury) that he could proceed with Partee and his other witness, the State could proceed with any rebuttal, and then the trial could be continued to the following morning when Keesee would testify--assuming she would show. The court asked Decker if he had a subpoena out on Keesee, and Decker responded, "I sent people out today./ THE COURT: She's not been served with a subpoena?/ MR. DECKER: No." Id. at 483. The court then reserved ruling on the matter, adding, "I am inclined to feel if she's only cumulative, and she hasn't been served with a subpoena, I hate to delay the trial an extra day or half a day...." Id.

So the trial proceeded, and Decker put on Partee and his last defense witness. After the questioning of these two had ended, the court conducted another sidebar as to how to proceed in the absence of Keesee. Decker again recounted his conversations with Keesee, his attempts to get her to appear that morning, and the missed ride with the Torrences. When asked again by the court whether a subpoena had been served on Keesee, Decker replied that, although he did not subpoena her for that day, he believed that Keesee was subpoenaed by Partee's previous counsel, the public defender's office. He professed that he did not know whether that subpoena had been "continued in force." After admonishing Decker to do everything in his power to locate Keesee, the court granted Decker's request to end for the day. The court told Decker he could conditionally rest his defense case and reopen the following morning with Keesee's testimony, if she appeared. Id. at 1188-93.

Partee's case was called the next morning, and still no Keesee. Decker explained to the court that he had sent an investigator to Keesee's purported place of employment with subpoena in hand, but Keesee was nowhere to be found. She apparently had been fired, and her former employer had no idea where she lived or where she might be working. Because he had not yet been able to "physically see or reach" Keesee, Decker asked the court for a postponement of "at least one hour." Trial Tr., May 12, 1983, at 566-68. Partee himself then addressed the court. He stated that he had spoken with Keesee's mother that morning, and she did not know Keesee's whereabouts, either. "It's just like she just disappeared," said Partee. Id. at 568-69. The prosecutor then spoke in opposition to the request for another continuance. He argued that waiting until mid-trial to try to serve a subpoena was too late. Decker responded that he believed a subpoena first had been served on Keesee by the public defender's office, but that it was canceled when the first trial date was moved. The court commented that subpoenas normally are continued, not canceled, when trials are postponed. The prosecutor added that he remembered that all orders continuing Partee's trial dates also continued all subpoenas. (The record bears out that recollection.)

Having heard enough, the trial judge ruled on the motion for another continuance:

I think I have given sufficient time for the witness to be brought in. She could have been subpoenaed a long time ago, and I think there has been enough time given. I think maybe the diligence hasn't been as it should be. I would agree with [the prosecutor]. I would deny the motion.

Id. at 571. But Decker persisted. He offered to bring in his investigator, Keesee's former employer, and others to verify the efforts he had made to locate the elusive Keesee. The court took Decker at his word as to his efforts to serve Keesee with a subpoena, but nonetheless stood firm in its denial of the continuance. Id. at 571-74.

The trial proceeded to final arguments. In his argument, the prosecutor commented upon the absence of Keesee, stating that there had been "not one scrap of evidence in this case to corroborate the fact that [Partee] was at the residence of Zernalia Keesee ... [or] to even corroborate the fact [that] there is such a...