US ex rel. Potts v. Chrans, 87 C 417.

• Citation: 700 F. Supp. 1505
• Decision Date: 30 November 1988
• Docket Number: No. 87 C 417.,87 C 417.
• Court: U.S. District Court — Northern District of Illinois
• Parties: UNITED STATES of America ex rel. Derrick POTTS, Petitioner, v. Warden CHRANS and Attorney General of Illinois, Respondents.

700 F. Supp. 1505

UNITED STATES of America ex rel. Derrick POTTS, Petitioner, v. Warden CHRANS and Attorney General of Illinois, Respondents.

No. 87 C 417.

United States District Court, N.D. Illinois, E.D.

November 30, 1988.

David M. Levin, Young & Levin, Chicago, Ill., for petitioner.

Michele Lavin, Mark L. Rotert, Office of Illinois Atty. Gen., Criminal Appeals Div., Chicago, Ill., for respondents.

MEMORANDUM OPINION

BRIAN BARNETT DUFF, District Judge.

Derrick Potts has filed a petition for a writ of habeas corpus seeking release from his incarceration in an Illinois prison. He contends that his conviction for voluntary manslaughter was not supported by sufficient evidence and that he was deprived of the right to effective assistance of counsel at trial. After respondent filed his answer and supporting memorandum, this court appointed counsel for petitioner. At a subsequent status hearing, however, appointed counsel stated that, in light of his review of the state court record and respondent's arguments, he believed that Rule 11 of the Federal Rules of Civil Procedure prevented him from arguing in support of the petition. The court will thus rule on the basis of the record and briefs already before it. These papers reveal that petitioner must prevail, and that appointed counsel's refusal to advocate his cause constitutes a serious breach of professional responsibility.

FACTS

In late February, 1983, Jerome Miller died of gunshot wounds he sustained in a violent confrontation involving a number of men in an apartment building in west Chicago. A short time later, petitioner and three others, Charles Gavel, Ray Taylor and Alexandro Smith, were arrested. During questioning, petitioner admitted that he had fired three shots at Miller with a .38 caliber pistol as Miller was attempting to flee down a stairwell, and that at least one of those shots hit the mark.

The state indicted Taylor, Gavel and petitioner for the murder, armed violence and unlawful restraint of Miller, as well as aggravated battery and armed violence against Daniel Nevels. On July 23, 1983, petitioner's counsel, Mr. Michael Cutrone, met with the assistant state's attorney, Ms. Bertina Lampkin, and the state trial judge in chambers. After the conference, the court and petitioner engaged in the following dialogue:

THE COURT: Mr. Potts, here is your situation. There is an agreement between the parties as to what would be proper sentence if you were found guilty of voluntary manslaughter.

There is a disagreement as to whether or not the evidence against you should result in the finding of guilty of murder or a finding of guilty of voluntary manslaughter.

The parties have entered into this agreement. They have agreed to submit the evidence to me against you in the main by stipulation. I think there is one witness the state is going to want to call and that after they have submitted the evidence to me, if I feel the evidence should warrant you guilty of manslaughter, voluntary manslaughter, you will be found guilty of voluntary manslaughter and you would be sentenced to the penitentiary for 12 years.

Do you understand that?

DEFENDANT POTTS: Yes, sir.

THE COURT: If I felt, after the stipulation, that the evidence should warrant a guilty of murder, I would declare a mistrial and send your case to another courtroom.

Do you understand that?

DEFENDANT POTTS: Yes, sir.

THE COURT: All right.

Now, they have pretty much told me what the evidence in the case is against you. And it is based upon an analysis of that evidence, I think that voluntary manslaughter finding would be appropriate. But I will still make an independent judgement sic on that evidence as it is submitted to me in open court.

You understand that?

DEFENDANT POTTS: Yes, sir.

THE COURT: Now, you are not pleading guilty, in effect you are having a bench trial and I am making a decision. There are elements of that that are resolved. But there are elements that are not. Because you are agreeing to proceed with the understanding that the best thing that can happen to you is you're found guilty of manslaughter and sentenced to jail for 12 years. So obviously, you're giving up a great deal as you would be if you were pleading guilty.

You understand that?

DEFENDANT POTTS: Yes, I do.

THE COURT: Do you understand what you're charged with, sir?

DEFENDANT POTTS: Yes, sir.

THE COURT: Do you understand that on the charge that is contemplated you would be found guilty, the sentence range is a minimum of four to a maximum of 15 years in the pententiary sic.

You understand that?

DEFENDANT POTTS: Yes, sir.

THE COURT: Do you understand further, sir, that you have a right to have an actual trial in the case and to force the state to put on their evidence and not to make any agreements beforehand that you're guilty of manslaughter. But just merely to stand on your guilty plea.

Do you understand you're giving that up by proceeding with this matter?

DEFENDANT POTTS: Yes, sir.

THE COURT: Do you understand, sir, that you also have a right to a trial by jury?

You understand that?

DEFENDANT POTTS: Yes, sir.

THE COURT: Obviously they wouldn't know anything about any such agreement that the state's attorney and your lawyer brought to me.

You understand what you are giving up, the right to a jury trial by proceeding even in this way?

DEFENDANT POTTS: Yes, I do.

THE COURT: You are giving up your right to a full blown bench trial where I would just come out and listen to the evidence as I am going to do to the other two and decide whether that evidence was sufficient or not.

Do you understand that you're giving that up?

DEFENDANT POTTS: Yes, I do.

THE COURT: One of two things is going to happen. I am going to find you guilty of voluntary manslaughter and send you to jail for 12 years or send your case to another courtroom.

You understand that?

DEFENDANT POTTS: Yes, sir.

THE COURT: Do you understand that in an actual trial you will truly be able to confront the witnesses against you. They have to testify under oath, not just by stipulation and they would be subjected to the cross examination of your lawyer.

Do you understand your sic are giving that up?

DEFENDANT POTTS: Yes, I do.

THE COURT: You understand you are giving up the presumption of innocence because what you're asking me to do in effect is to.

Do you understand you're giving up the presumption of innocence?

DEFENDANT POTTS: Yes, I do.

THE COURT: You understand you're giving up the right to remain silent by doing that?

DEFENDANT POTTS: Yes, sir.

THE COURT: Giving up the right to actually contest the facts fully and to present evidence in your own behalf.

Do you understand that?

DEFENDANT POTTS: Yes, I do.

THE COURT: You understand that at a trial the state has to prove you're guilty beyond a reasonable doubt.

DEFENDANT POTTS: Yes, sir.

THE COURT: And you are giving up an aspect of that protection by this agreement.

You understand that?

DEFENDANT POTTS: Yes, I do.

THE COURT: Have you, sir, entered into this agreement voluntarily and of your own free will?

DEFENDANT POTTS: Voluntarily.

THE COURT: All right.

It was your choice to do this. You may have been advised, but it was your choice to do this, is that correct?

DEFENDANT POTTS: Yes, sir.

THE COURT: Has there been any force or threats or promises other than the agreement to compel or make you proceed in this manner?

DEFENDANT POTTS: No, there haven't.

THE COURT: You may be seated, sir.

Tr. 4-9 (emphasis added). The prosecution then proceeded with its case.

The state called Daniel Nevels as its only witness. The rest of the evidence was introduced by stipulation. That is, the prosecutor explained that, if the case went to trial, the state's witnesses would testify as follows: Assistant State Attorney Muharek would repeat his post-arrest conversations with Gavel and with petitioner; a number of police officers would describe what they saw when they arrived at the crime scene and searched the apartment; and other witnesses would discuss the physical evidence and the cause of death. This "evidence", though not entirely consistent, did paint a vivid picture of the circumstances leading to Miller's fatal injury.

On February 25, 1983, at around 7:00 p.m., petitioner was standing in the hallway outside Apartment 401 with Smith, Taylor, and Lester Hughes. The four listened as Eddie Coats explained that Miller, who was in Apartment 412 with Nevels and Gavel, had to be "whipped" because he had brought police attention to the building and had thus endangered the drug traffic there. When Coats finished, Smith and Taylor entered Apartment 412.

Smith immediately approached Miller and struck him while Taylor went to the kitchen, retrieved a biscuit pan, and prepared to join in the beating. Nevels, frightened for Miller, pulled out a shotgun and ordered Smith and Taylor to move away. At this point, Hughes emerged from the hallway, pointed a .380 caliber semi-automatic at Nevels and instructed him to put the shotgun down. When Nevels refused, the two exchanged shots: Nevels missed his target; Hughes did not. Nevels dropped the shotgun from his badly wounded arm and ran for the door, but before he exited another bullet caught him in the leg.

Nevels continued his flight, running across the hallway and down the building stairwell; Taylor, unarmed, pursued him. As they ran, both men passed petitioner standing alone between Apartments 402 and 412. A moment later, Gavel and Miller emerged from Apartment 412 struggling for the shotgun. Smith was close behind, and after briefly assisting Gavel in his efforts to take the gun from Miller, Smith pulled out the .38 caliber pistol and placed it against Miller's head. Petitioner grabbed the gun from Smith and watched (or assisted) as Smith, Gavel and the recently-returned Taylor fought Miller for the gun.

Eventually, Miller escaped and headed down the stairwell. Petitioner went to the stairwell, reached over, and when Miller reached the third floor landing, fired three shots...