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United States v. Fairman

May 9, 1983

UNITED STATES OF AMERICA EX REL., MICHAEL NANCE, PETITIONER-APPELLANT,
v.
J. W. FAIRMAN, WARDEN, PONTIAC CORRECTIONAL CENTER, RESPONDENT-APPELLEE.



Appeal from the United States District Court for the Central District of Illinois. No. 82-3107 -- J. Waldo Ackerman, Judge.

Author: Aspen

Before CUDAHY, ESCHBACH, Circuit Judges, and ASPEN, District Judge.*fn*

ASPEN, District Judge. Petitioner Michael Nance was convicted of armed robbery in the Circuit Court of Macon County, Illinois. The Illinois Appellate Court affirmed, People v. Nance, 100 Ill.App.3d 1117, 427 N.E.2d 630, 56 Ill. Dec. 435 (4th Dist. 1981), and the Illinois Supreme Court denied petitioner leave to appeal. Petitioner then filed for a writ of habeas corpus in federal district court, claiming that the conviction violated his Sixth Amendment right to confront witnesses against him. The district court denied the writ both on the merits and for petitioner's failure to exhaust his constitutional claim by failing to raise it in the state courts. For reasons set forth below, we affirm the decision of the district court.

I.

The victim of the armed robbery, John Fiorino, testified at trial that as he rode his motorcycle down a Decatur street on August 5, 1980, a man on a bicycle stopped to converse with him. Two men seated on a retaining wall across the street called to Fiorino to come over to them. As Fiorino neared them, one of the men put a handgun to the back of Fiorino's head and demanded money and cocaine. Fiorino stated that he had neither, and the men took his wristwatch, wallet and keys to his motorcycle. Although shortly after the robbery he was unable to identify petitioner from a photo display, at trial Fiorino identified petitioner as the gunman and Julius Petis ("Julius") as the man upon the bicycle.

Petitioner's habeas claim focuses on the alleged restriction of his cross-examination of Julius, who testified for the State.*fn1 On Direct examination, Julius testified that he had complimented Fiorino on his motorcycle, and that Fiorino then asked him if he knew anyone who wanted to buy cocaine. Julius left the immediate area to speak to his brother, Dave Pettis ("Dave"), and petitioner, who told him to send Fiorino over to meet with them. Julius relayed the message, and Fiorino then joined Dave and petitioner across the street. Julius testified that he saw petitioner place a handgun near Fiorino's ear. After Fiorino had been ordered to leave the scene, Julius stated that he saw petitioner search the saddlebags of the motorcycle.

On cross-examination, Julius admitted that two days after the robbery, he told investigating officers that he had observed petitioner and Fiorino together earlier in the evening of June 5, 1980, that he was some distance down the street from where the robbery occurred, and that his brother Dave was the gunman. Also during cross-examination, petitioner's attorney, Gary Geisler, showed Julius a transcript of a statement Julius made while he was in custody in November 5, 1980. This transcript was handwritten by Geisler and signed by Julius. Julius also admitted signing a typewritten version of the document. The trial court, however, refused to permit Julius to be cross-examined on these documents. Thus, the trial court did not permit Julius to be cross-examined on his statement that he did not see either of the robbers with a gun, which was inconsistent with Julius' direct testimony that Michael Nance was the gunman at the armed robbery.

Prior to Geisler's attempted offer of proof, a colloguy took place between Geisler, the prosecutor and the Court,*fn2 which culminated as follows:

THE COURT: Let's go to the Court's ruling. Number one, the question is improper as an attempted impeachment without any foundation whatsoever. To impeach a witness you have to lay foundation as to time and place, who was present, say the least. Number two I sustained it because if he should answer no, then it would be necessary for you to testify to complete the impeachment, and that, of course, I was trying to avoid because when you become a witness you no longer are competent as counsel. You can't have a dual role. You'd have to withdraw.

Let's go back to number one, that means that I sustained the objection, no foundation as far as the place, the time and who was present.

The court then allowed Geisler to question Julius as part of an offer of proof,*fn3 but denied the offer:

THE COURT: The Court is going to rule as follows. The Court is ruling, number one, the method and manner of the attempted impeachment is not correct, and the objections to this approach are sustained.

Commenting, I feel that this is not the accepted method at all in the way in which it should be done. With that are we ready -- the offer of proof is denied.

The Court denied the offer of proof on the grounds that a proper foundation as to the time and place of the interview had not been laid, Julius' counsel had not been present at Geisler's interview, and the Court wished to avoid placing Geisler in the position of becoming a ...


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