Clarence Gardner v. Paul Barnett, Warden

175 F.3d 580, 1999 U.S. App. LEXIS 8447, 1999 WL 269067
CourtCourt of Appeals for the Seventh Circuit
DecidedMay 4, 1999
Docket98-1314
StatusPublished
Cited by8 cases

This text of 175 F.3d 580 (Clarence Gardner v. Paul Barnett, Warden) is published on Counsel Stack Legal Research, covering Court of Appeals for the Seventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Clarence Gardner v. Paul Barnett, Warden, 175 F.3d 580, 1999 U.S. App. LEXIS 8447, 1999 WL 269067 (7th Cir. 1999).

Opinions

CUDAHY, Circuit Judge.

Joseph Waites, the student-manager of the Calumet High School football team in Chicago, was shot dead when he and other members of the football team got into a street scuffle with local gang members. A jury convicted Clarence Gardner of the first degree murder of Waites, and he was sentenced to 35 years in prison. Gardner, a self-professed gang member, was tried on a theory of accountability. At trial, the jury heard that, while Gardner neither fired the lethal shots nor supplied the gun, he punched and kicked Waites and exhorted other gang members to “bust him,” a colloquialism for “shoot him.” The prosecution’s theory was that Gardner was the leader on the street and “gave the orders to kill.” An Illinois appellate court affirmed Gardner’s conviction and the Illinois Supreme Court denied his petition for leave to appeal. Gardner petitioned for a writ of habeas corpus under 28 U.S.C. § 2254. The district court denied the relief sought and Gardner now appeals, contending that his trial was rendered fundamentally unfair by the trial court’s refusal (1) to grant a continuance to allow him to present his only fact witness, and (2) to thoroughly question prospective jurors about gang bias during voir dire. We find that the trial court acted unreasonably both in denying the continuance and in limiting voir dire. Because we believe that Gardner was denied his rights to due process and a fair trial, we reverse the decision of the district court and direct that the writ of habeas corpus shall issue unless the State affords Gardner a new trial within 120 days.

Standard of Review

A writ of habeas corpus may be issued only if the challenged decision of the state court “was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States,” 28 U.S.C. § 2254(d)(1) or “was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d)(2). For the purposes of habeas review, the state court’s factual findings are presumed to be correct; Gardner has the burden of rebutting the presumption of correctness by clear and convincing evidence. See 28 U.S.C. § 2254(e)(1). We review the state court’s legal determinations as well as mixed questions of law and fact de novo. See Long v. Krenke, 138 F.3d 1160, 1163 (7th Cir.1998).

Background

The facts of this case are set out at some length in the Illinois appellate court’s opinion affirming Gardner’s conviction. See People v. Gardner, 282 Ill.App.3d 209, 217 Ill.Dec. 940, 668 N.E.2d 125 (1996). Our discussion here is limited to the facts immediately pertinent to this appeal.

On the afternoon of October 23, 1993, a few blocks from Calumet High School, several members of the high school football team were involved in an altercation with a larger group comprising members of two allied gangs, the Gangster Disciples and the Black Disciples. Among the Gangster Disciples present at the scene was the defendant, Clarence Gardner, who was sixteen years old at the time. Also present [583]*583were two older men, Richard Taylor1 and Demitrius Smith, who had driven by in a blue car some time earlier in the afternoon. While there is some dispute over the facts — which may be explained in part by the chaos and confusion on the street that afternoon — we divine that events unfolded roughly as follows.

The incident was sparked by a series of verbal exchanges between individual football players and gang members. Gardner, who was standing in the crowd, allegedly asked the football players what they were doing and told two of them to remove their hats. During this bout of “trash-talking,” Smith and Taylor pulled up to the epicenter of the altercation in the blue car. The mélée intensified. Smith jumped out of the car and charged the football players, igniting a fullblown confrontation involving at least 50 youths. The football players fled the scene and a chase ensued. Joseph Waites — who was not a member of any gang — was grabbed by about six gang members and beaten to the ground where he was punched and kicked. In a court-reported statement given during a police interview, Gardner admitted that he participated in the beating by punching Waites three times in the chest. When the beating had ceased, Taylor appeared from the direction of the car, gun in hand, and told the others to move because he was “fixing to bust him.” Another gang member, Buck Eye Lee, then said “take care of your business” and, by his own admission, Gardner said “bust him.” Taylor pointed the gun at Waites and Gardner heard four shots as he ran from the scene.

Three of the football players testified at trial: Michael Waites, the victim’s brother, Anthony Foster and Cantrell Davis. Each testified that he knew Gardner at the time and that Gardner went by the nickname “Ceno.” Michael Waites testified that when the blue car pulled up to the epicenter of the altercation, Gardner said “bust them folks” and that he repeated the words “bust" him” three times more. Anthony Foster testified that after the driver and passenger got out of the car, Gardner told them that the football players were members of a rival gang and said “bust at then-ass.” Cantrell Davis confirmed the gist of Foster’s testimony but testified- that he heard Gardner say “fuck that folks shoot them, pop at them, bust at them, bust at them.” However, on cross examination, Davis conceded that the speaker was outside his line of vision and that his identification of Gardner was based on voice recognition alone. Although Michael Waites, Anthony Foster and Cantrell Davis each spoke to the police on the day of the shooting, none of the three attributed the “bust” statements to Gardner at that time; it was only in subsequent police interviews that Gardner was named. In fact, on the day of the shooting each of the three stated that they believed the speaker to have been a Black Disciple, whereas at trial they testified that they had known that Gardner was a Gangster Disciple.

In his court-reported statement, Gardner admitted that he said “bust him” in the final stage of the altercation before Taylor fired the fatal shots. Whether these words were a leader’s orders into action or the mere echoing cry of a foot soldier after the evil deed was virtually done was a defining issue at trial. The prosecution’s case — that Gardner was “the chief’ on the street — depended heavily on its characterization of Gardner’s role during the initial stages of the altercation.2 The contention [584]*584that Gardner issued an order to kill rested in part on the notion that Gardner had been the one issuing orders during those initial stages. The defense, of course, attempted to cast Gardner as a hapless private in the ranks. It argued that precisely because Gardner had not

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Clarence Gardner v. Paul Barnett, Warden
175 F.3d 580 (Seventh Circuit, 1999)

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Bluebook (online)
175 F.3d 580, 1999 U.S. App. LEXIS 8447, 1999 WL 269067, Counsel Stack Legal Research, https://law.counselstack.com/opinion/clarence-gardner-v-paul-barnett-warden-ca7-1999.