U.S. ex rel. Smith v. Fairman

• Citation: 769 F.2d 386
• Decision Date: 22 July 1985
• Docket Number: Nos. 84-2731,84-2829,s. 84-2731
• Parties: UNITED STATES of America ex rel. Lawrence SMITH, Petitioner-Appellee, Cross- Appellant, v. James W. FAIRMAN and Neil F. Hartigan, Respondents-Appellants, Cross-Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)

Page 386

769 F.2d 386

UNITED STATES of America ex rel. Lawrence SMITH, Petitioner-Appellee, Cross- Appellant, v. James W. FAIRMAN and Neil F. Hartigan,

Respondents-Appellants, Cross-Appellees.

Nos. 84-2731, 84-2829.

United States Court of Appeals, Seventh Circuit.

Argued Jan. 14, 1985.

Decided July 22, 1985.

Kenneth N. Flaxman, Chicago, Ill., for Fairman and Hartigan.

Kenneth A. Fedinets, Asst. Atty. Gen., Chicago, Ill., for the U.S. ex rel. Smith.

Before BAUER, CUDAHY and FLAUM, Circuit Judges.

FLAUM, Circuit Judge.

Respondents appeal from the district court's order granting petitioner Lawrence Smith's petition for a writ of habeas corpus on the ground that the State violated the dictates of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), by failing to provide petitioner with a police firearms worksheet prior to his trial. Petitioner, seeking a complete reversal of his conviction rather than the new trial ordered by the district court, appeals from the district court's conclusion that the State's evidence was not insufficient to establish petitioner's guilt beyond a reasonable doubt. We affirm.

I.

A. The Trial

On January 27, 1974, the petitioner was arrested by two Chicago police officers, Officers Pooler and Martis. He was subsequently indicted on two counts of aggravated battery, one count of attempted murder, and one count of attempted armed robbery. At petitioner's state bench trial before Judge Watt on March 14, 1978, the two officers testified to the following series of events leading to petitioner's arrest: while on patrol at approximately 5:45 p.m. on January 27, 1974, the officers observed petitioner holding a gun to the head of a man named Arthur Bell. Bell was standing half in and half out of the cab of a truck parked at the curb. Believing that they were witnessing an armed robbery, the officers parked in an alley, got out of their car, and approached the truck. Officer Martis went around the back of the truck and Officer Pooler started to go around the front. As Pooler stopped to detain and search a third man coming toward him around the front of the truck, he heard Martis shout "police officers, drop your gun" and heard two shots fired. Pooler went around the front of the truck, holding the third man by the arm with his left hand and holding his gun in his right hand, and observed petitioner (with his back to Pooler) shooting at Officer Martis. Martis fell to the ground, returning petitioner's fire, and told Pooler "get him, Richie." Pooler then shot at petitioner, whereupon petitioner spun around and pointed his gun at Pooler. Pooler fired two more shots, causing petitioner to spin around in an evasive maneuver. When petitioner again pointed his gun at Pooler, Pooler fired two more shots, and petitioner fell to the ground. Martis then came over to wrestle the gun away from petitioner. Pooler held the third man by the arm throughout the entire episode.

Arthur Bell, the alleged victim, died prior to trial and therefore did not testify. The State's only witness other than Officers Pooler and Martis was Ella Springer, a bystander who testified that as she was crossing the street in the vicinity of the truck, she heard a man's voice say "man, I don't have any money." Moments later she heard a voice say "police officer, drop your gun." She then heard a shot fired, looked over toward the truck, saw three black men standing by the truck, and saw a police officer fall to the sidewalk. She then ran from the scene. When she returned, a crowd had gathered and she could see a man lying on his stomach on the sidewalk, bleeding from the buttocks. She did not see who fired the shots, did not see a gun, and could not identify petitioner either as one of the three black men standing near the truck or as the person she later saw lying on the ground. This concluded the State's case.

Petitioner testified to a completely different version of the incident: on the evening of January 27, 1974, he had been drinking and talking with four friends on the sidewalk. One of the men had a gun that he was trying to sell for $20. Petitioner examined the gun for a few minutes, removing the magazine and taking all of the bullets out of the magazine. As he was looking at the gun, two of his friends wandered away, leaving only three men standing on the sidewalk. Petitioner did not remember observing any truck parked at the curb. Petitioner testified that he tried to get his friend to give him the gun for free, saying "man, I don't have any money." He was loading the bullets back into the magazine when he heard someone shout "police officers, drop your gun." He threw the gun down and started to run, still holding the remaining bullets. Petitioner heard five shots before being hit in the back of the leg, approximately one inch above his knee. After he fell to the ground, Officer Martis ran over and kneeled on petitioner's leg. When petitioner protested that Martis was kneeling on petitioner's wound, Martis said that he knew what he was doing, called petitioner names, stood up, and deliberately shot petitioner in the buttocks. Petitioner was hospitalized for six months as a result of the shooting. He underwent a colostomy while in the hospital and suffered permanent nerve damage to his leg. The State did not contradict or rebut petitioner's testimony as to his wounds.

The gun that was recovered from the scene was later inventoried and found to contain five unspent cartridges in its magazine. Three unspent bullets were found in petitioner's pants pocket. Petitioner testified that the gun would hold a total of eight bullets, while Officer Pooler testified that, to his knowledge, the gun would hold ten or eleven. Officer Martis testified that petitioner fired a total of three or four shots at him.

Judge Watt found petitioner not guilty of aggravated battery, guilty of attempted murder, and guilty of attempted armed robbery. He sentenced petitioner to concurrent terms of four to twelve years for the attempted armed robbery and eight to fifteen years for the attempted murder.

B. Post-Conviction Proceedings

On direct appeal, petitioner argued that there was insufficient evidence to sustain his conviction on either charge and that he was denied effective assistance of counsel. The state appellate court rejected these arguments and affirmed his convictions. People v. Smith, 81 Ill.App.3d 764, 36 Ill.Dec. 879, 401 N.E.2d 1017 (1980).

On January 30, 1979, while his direct appeal was pending, petitioner filed a motion for post-conviction relief in the trial court pursuant to Ill.Rev.Stat. ch. 38, Sec. 122 (1979). The motion was based upon petitioner's discovery that the police had prepared, the day after the incident leading to his arrest, a firearms worksheet indicating that the gun petitioner was supposed to have fired at the police officers was in fact inoperable. Petitioner's motion for post-conviction relief was granted, and a hearing was held on February 26, 1981, before Judge Schreier.

Two witnesses testified at the post-conviction hearing. The first was Officer Robert Smith, a ballistics officer with the Chicago Police Department. Officer Smith testified that on January 28, 1974, the day after the alleged shooting, he examined the gun in question and found that it was inoperable. His worksheet stated that the "trigger extension bar" was damaged and did not "engage [the] sear." In order to test fire the gun, he had to trip the sear with a screwdriver. In Smith's opinion, the gun's inoperability could conceivably have been caused either by wear and tear or by being dropped. Smith further testified that he found some residue in the muzzle of the gun, indicating that the gun had been fired since it was last cleaned, but could not determine when the gun had last been fired. Smith noted all of these observations on a firearms worksheet but then put the worksheet in his files. He did not include the fact of the gun's dysfunction on his official report, filed on February 5, 1974, because the only bullets found at the scene had been fired from Officer Pooler's gun. Smith testified that it was departmental procedure only to report the results of a match between the bullets recovered from the scene of a crime and the guns submitted for testing. ¹

The second witness to testify at petitioner's post-conviction hearing was Professor Joseph D. Nicol, a firearms expert who examined the gun in March 1980 and also concluded that it was inoperable. Nicol testified, however, that the gun's inoperability was due solely to wear and tear on critical internal parts, not to the gun's being dropped. He testified that "many repeated actions" had worn down the inside surfaces of the gun such that they no longer engaged. In addition, he found no evidence of broken or damaged parts. Nicol further testified that if he found a gun with five unspent cartridges in its magazine and none in the chamber, he would conclude that it had not been fired because upon firing, one of the bullets in the magazine would have dropped into the chamber for the next shot.

At the conclusion of the hearing, Judge Schreier reversed petitioner's conviction for attempted murder, concluding that the evidence presented at the hearing raised a reasonable doubt as to petitioner's guilt. Judge Schreier let stand petitioner's conviction for attempted armed robbery, however, on the basis that "even an inoperable gun" could be used to commit an armed robbery under Illinois law and that evidence of the gun's inoperability therefore would not affect the validity of that conviction. In response to petitioner's argument that the new evidence proved that the officers had lied on the stand and consequently that none of their testimony should be believed, the court stated that "any witness can be believed on one aspect and disbelieved on another aspect."

On appeal, the state appellate court affirmed Judge Schreier's decision to sustain petitioner's attempted...