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Rastafari v. Anderson

January 22, 2002

GAMBA M. RASTAFARI, A/K/A GREGORY ROUSTER, PETITIONER-APPELLANT
v.
RONDLE ANDERSON, RESPONDENT-APPELLEE



Appeal from the United States District Court for the Northern District of Indiana, South Bend Division. No. 99 C 608--Allen Sharp, Judge.

Before Bauer, Easterbrook, and Kanne, Circuit Judges.

The opinion of the court was delivered by: Kanne, Circuit Judge

As amended March 6, 2002.

GAMBA M. RASTAFARI, A/K/A GREGORY ROUSTER, PETITIONER-APPELLANT
v.
RONDLE ANDERSON, RESPONDENT-APPELLEE

Appeal from the United States District Court for the Northern District of Indiana, South Bend Division. No. 99 C 608--Allen Sharp, Judge.

Before Bauer, Easterbrook, and Kanne, Circuit Judges.

The opinion of the court was delivered by: Kanne, Circuit Judge

 Argued May 18, 2001

Petitioner, Gamba Rastafari, a/k/a Gregory Rouster ("Rouster"), was convicted of two counts of felony murder in Indiana state court after a joint jury trial with two co-defendants. At the jury's recommendation, the trial judge sentenced Rouster to death. After exhausting his state remedies, Rouster filed a petition for a writ of habeas corpus in the Northern District of Indiana. Rouster now appeals the denial of his habeas petition, alleging the following: 1) that his trial counsel was ineffective for failing to move for severance prior to trial; 2) that his trial counsel was ineffective for failing to move for severance prior to the penalty phase; and 3) that his trial counsel was ineffective for failing to present expert testimony on self-defense. For the following reasons, we affirm.

I. Facts

A. Background

John and Henrietta Rease, an elderly couple who lived in Gary, Indiana, cared for, fed, and housed foster children at their home at 2430 Jennings Street in exchange for $160 per month per child. One such foster child was Rouster, who lived with the Reases from November 1985 until his eighteenth birthday on February 7, 1986. On August 12, 1986, the Reases were robbed and shot to death in their home. Police arrested Rouster, Darnell Williams, Theresa Newsome, and Edwin Taylor and charged them each by information with two counts of felony murder. Ind. Code sec. 35-42-1-1(2).*fn1 Further, the State sought the death penalty against Rouster and Williams pursuant to Ind. Code sec. 35-50-2-9, Indiana's death penalty statute.

At the Initial Hearing, public defender Robert Lewis was appointed to represent Rouster, and Rouster entered a plea of not guilty on both counts. On January 7, 1987, Noah Holcomb was appointed as additional counsel to aid Lewis in representing Rouster. On February 3, 1987, Williams filed a motion for severance, asking the court to "sever him from the trial of the remainder of the defendants herein . . . [because] his interests, rights and his defenses hereto will be prejudiced if he is tried with the remainder of the defendants herein." Williams' motion to sever was denied, and Rouster never filed a motion to sever.

B. The Crimes

Rouster's joint trial with Williams and Newsome *fn2 began on February 10, 1987, at which time Rouster's counsel waived opening statement. Neither Rouster nor Williams testified, but the following evidence was adduced at trial through direct and cross-examination of the State's witnesses and through the admission of 70 trial exhibits consisting of physical evidence and of photographs.

Jack Baumer, the child welfare caseworker who placed Rouster with the Reases, testified that he saw Rouster at a drug store in Gary, Indiana on August 12, 1986. Rouster asked Baumer if the Reases received a clothing allowance on his behalf during the time Rouster lived with them. Baumer responded that the Reases received a clothing allowance of about five to six dollars per month, and Rouster told him that he had never received any clothing from the Reases. According to Baumer, Rouster ended the conversation by saying that he was going to get his money from the Reases.

Derrick Bryant, a seventeen-year-old foster child who lived with the Reases, testified that on August 12, 1986, he was in the living room of the Rease house. Through a window in the living room, Bryant saw Rouster, Williams, Newsome, and Kim Toney ("Four") *fn3 walking towards the Rease house at around 9:00 p.m. Bryant testified that while walking toward the Rease house, Rouster wasdrinking from a 40-ounce bottle of Private Label malt liquor. The Four entered the Rease house and sat down in the living room, and Rouster and Henrietta Rease went into Rouster's former bedroom to talk.*fn4 Bryant testified that while he was in the living room, he heard Rouster state that Baumer had told him that he was supposed to get some money from the Reases. Bryant also testified that Henrietta Rease responded that she did not know anything about that money. Bryant stated that Rouster and Henrietta Rease returned to the living room, at which time Bryant then left the living room and went to a room at the back of the house.

From the back room, Bryant heard Henrietta Rease ask the Four to leave the house. Bryant testified that he then heard Williams say, "I won't let her, she's doing nothing but gypping you out of the money." Bryant then heard a gunshot and someone running through the backyard. He testified that the gunshot sounded like it was fired outside of the Rease house. Bryant then went upstairs to hide in the attic. While in the attic, he heard a conversation take place outside between Williams, Rouster, and Edwin Tay lor, another foster child living with the Reases. According to Bryant, Taylor said, "you all have guns, you all go take the money." Bryant stated that Rouster asked Taylor where the Reases kept their money, to which Taylor responded, "it's on the dresser." Bryant then testified that he heard Rouster say, "let's go rob them."

Bryant ran downstairs to warn the Reases, but when he saw Rouster coming into the Rease house through the front door, he hid behind a stairway. He then heard Rouster tell Henrietta Rease, "I know how to act now and I don't need us to go through this because I got a gun and you got a gun." Bryant heard Williams tell Henrietta Rease to get down on the floor and heard Rouster demand to be told where the money was. Next, Bryant heard Rouster say, "bring both of them back here," and Bryant heard a noise that sounded like someone falling into a wall. Because he was hiding behind the stairs, Bryant could not determine where in the house this activity took place. Bryant testified that Williams then said, "it's your time." Bryant then heard Rouster say, "waste them." Bryant stated that Henrietta Rease asked Rouster, "Greg, why are you doing this?" to which Rouster responded, "my name ain't Greg." Bryant then heard a gunshot, followed by someone entering the Rease house through a side-door in the kitchen. The next noise that Bryant heard sounded like money falling on the kitchen floor. Bryant heard more gunshots coming from inside of the house, at which time he ran out of the back door of the house. Bryant testified that he then flagged down a police car and told the police to come to the Rease house. Finally, Bryant testified that he knew that the Reases kept at least one pellet gun in the house, and that Taylor told him that Henrietta Rease kept a gun by her bed.

Fourteen-year-old Eugene Powell testified that at around 8:30 or 9:00 p.m. on August 12, 1986, he was standing outside of his house at 2423 Jennings Street (across the street and one house over from the Rease House) with friends Jamal Pope, Demond Ligon, Jimmy Gray, and others ("Group"). Powell saw Rouster, Newsome, a young man, and a young woman walking towards the Rease House. Powell had known Rouster and Newsome from the time that Rouster lived with the Reases, but did not know the other young man. Powell testified that he saw Rouster and Newsome enter the Rease house, while the other two stayed outside. The Group walked to the corner of Jennings Street and 25th Avenue, and then turned around and began walking down Jennings Street towards the Rease house. The Group continued walking, and when they were across the street from the house on 2462 Jennings Street, Powell heard a noise that sounded like two firecrackers coming from inside the Rease house. When the Group reached Gray's house (directly across the street from the Rease house), Powell saw the young man he did not know looking for something on the ground in front of the Rease house, using a cigarette lighter for illumination. Powell then saw Taylor running down Jennings Street, and the Group moved to Powell's front yard. Powell then testified that he saw Rouster exit the Rease house and enter the Reases' garage with the young man. At that point, Powell and Ligon began to walk up the Reases' driveway, but when they heard Rouster say "who's up in here, we'll shoot," they turned around and went back across the street to Powell's house.

The Group then began to walk down Jennings Street away from the Rease house again, and when they were two houses down from Powell's, Powell heard three more firecracker sounds. Powell then saw the shadow of a person in the living room of the Rease house. After hearing two more firecracker sounds, Powell, Pope, and Ligon went to Ligon's house to call Powell's father. A few minutes later, Powell and Pope started walking towards Powell's house. Powell saw Rouster and Newsome in the Reases' driveway and heard Rouster ask Newsome if she still loved him. Powell and Pope then started running towards Powell's father's car, which was parked in Powell's driveway. Powell testified that while running, he heard Rouster tell Newsome, "I killed the motherfuckers." Powell and Pope then got into Powell's father's car, and Powell saw a police car pull up to where Rouster and Newsome were talking, and saw Rouster pointing down the street. The police car pulled away and stopped at a different house down the block. As Powell, Pope, and Powell's father drove away, Powell heard another firecracker sound while Rouster and Newsome were still in the Reases' driveway.

Pope, Ligon, and Gray all testified and corroborated Powell's testimony. Ligon added that Rouster was wearing a white shirt and a black hat that night, and Gray added that he saw Rouster drinking from a 40-ounce bottle of Private Label malt liquor when Rouster was first walking up Jennings Street towards the Rease house.

Lelia Gray, Jimmy's mother, testified that after hearing a lot of noise coming from the Rease house, she looked out of the window of her house, which was directly across the street from the Rease house, and saw two young men wrestling in the Reases' front yard. One of the young men wore a white shirt and Ms. Gray heard one of them shout that he "wanted his share." Ms. Gray then saw a young woman wearing all white clothing ask one of the young men for bus fare. From her front yard, Ms. Gray saw the two young men enter the Rease house and saw that the young man in the white shirt had a gun in his back pocket. After the young men entered the Rease house, she heard gunfire. In addition, she saw two flashes inside of the Rease house, which she described as "light flashing from [the] firing of a gun"--one in the living room and one in the front bedroom. She then saw the young man in the white shirt talking to the young woman in white on the Reases' driveway, telling her that he "killed the motherfuckers." Ms. Gray also heard the young woman ask the young man, "why did you do that?" Ms. Gray then saw a police car pull in front of the Rease house and saw the young man in the white shirt tell the police that the disturbance was down the street. Ms. Gray then testified that she saw the young man in the white shirt and the young woman in white walk behind the outside of the Rease house, and that she then heard one more gunshot.

Gloria Williams, the Reases' next-door neighbor, testified that on the night of August 12, 1986, she heard screams and a noise that sounded "like a hammer hitting aluminum siding" coming from inside the Rease house. She heard someone inside of the Rease house yell, "Get it. You know where it is. Go get it." Also, Ms. Williams testified that she could see inside of the Reases' bedroom from her second-floor window, and that she saw objects being tossed around the room. However, someone then closed the shade in the Reases' bedroom. After hearing more noises that sounded like gunshots from the Rease house, Ms. Williams called the police. She then noticed a young man and young woman arguing in the Reases' front yard. The young man told the young woman, "you don't love me," and she replied, "yes I do. You know I love you." Ms. Williams testified that the voice of the young man who was arguing with the young woman in the front yard was the same voice that she heard yelling in the Rease house.

C. The Arrest

Officer Rita Dorsey of the Gary Police Department testified that she and her partner had been dispatched to the Reases' neighborhood because of reports of gunfire in the area. As she drove down Jennings Street, Officer Dorsey saw two black youths--one male and one female--talking and asked them where the disturbance was. The young woman approached the police car and told Officer Dorsey that there was no disturbance at that location and that maybe there was a disturbance at a different house down the street. After questioning one of the Reases' neighbors, Officer Dorsey heard a gunshot. She and her partner returned to their patrol car and drove towards the direction of the gunshot. The officers were flagged down by Bryant, who took them to the Rease house. Officer Dorsey and her partner entered the Rease house and found the Reases' bodies on the floor of a bedroom.

Gary bus driver Donna Thomas testified that at 8:05 p.m. on August 12, 1986, two young women and two young men got onto her bus at 21st Avenue and Broadway. She identified Rouster as one of the young men and Newsome as one of the young women, and testified that Rouster was wearing a white shirt and a black hat. Thomas testified that Rouster had a bottle wrapped in a paper bag with him. She also stated that Rouster smelled strongly of "intoxicants." Thomas testified that at around 8:15 p.m., the Four departed the bus at 21st Avenue and Hendricks. Thomas then stated that shortly after 9:20 p.m., Rouster and New some ran across 21st Avenue and then boarded her bus at 21st Avenue and Chase. They paid their bus fare with change and asked Thomas if they "could ride around." Thomas testified that as the bus crossed 25th Avenue and Chase, she saw an Indiana State Police car and noticed that Rouster and Newsome crouched down in their seats. Rouster and Newsome exited the bus at 21st Avenue and Broadway, where another bus whose route went down Broadway to 41st Avenue was idling.

Indiana State Trooper Rodney Means testified that while in his patrol car on the evening of August 12, 1986, he saw a young man and a young woman, who he later identified as Rouster and Newsome, running towards a bus on 21st Avenue. He then saw them board the bus at 21st Avenue and Broadway. Rouster and Newsome matched the description of two of the youths involved in the shootings at the Rease house, and therefore, Officer Means followed the bus. When Rouster and Newsome got off the bus at 41st Avenue and Broadway, Officer Means got out of his patrol car, approached them, and questioned them. Rouster and Newsome told him inconsistent stories about where they boarded the bus. Newsome also told Officer Means not to listen to Rouster because he was high and had been drinking. Officer Means testified that Rouster appeared intoxicated and that his eyes were bloodshot. Next, Officer Means testified that he asked Rouster what the bulge in ...


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