Webster v. Duckworth

Decision Date11 September 1985
Docket NumberNo. 83-3096,83-3096
Citation767 F.2d 1206
PartiesDirk WEBSTER, Petitioner-Appellant, v. Jack R. DUCKWORTH, Warden and the Indiana Attorney General, Respondents- Appellees.
CourtU.S. Court of Appeals — Seventh Circuit

J. Kevin McCall, Jenner & Block, Chicago, Ill., for petitioner-appellant.

Robert B. Wente, Deputy Atty. Gen., Indianapolis, Ind., for respondents-appellees.

Before CUMMINGS, Chief Judge, CUDAHY, Circuit Judge, and TIMBERS, Senior Circuit Judge. *

TIMBERS, Senior Circuit Judge.

The question presented by this appeal from a judgment denying a state prisoner's petition for a writ of habeas corpus is whether, following the highest state court's reversal of the prisoner's first degree murder conviction on the ground of the insufficiency of the evidence, the double jeopardy clause of the Fifth Amendment to the United States Constitution barred retrial of the prisoner on the same charges. We hold, on the authority of Burks v. United States, 437 U.S. 1 (1978), that the double jeopardy clause did bar retrial.

Dirk Webster appeals from a judgment entered November 1, 1983 1 in the Northern District of Indiana, Allen Sharp, Chief District Judge, 572 F.Supp. 1271, denying his petition for a writ of habeas corpus pursuant to 28 U.S.C. Sec. 2254 (1982). Appellant was convicted on two counts of first degree murder in the Superior Court of Lake County, Indiana, and was sentenced to two consecutive 45 year terms of imprisonment. The Supreme Court of Indiana reversed and ordered a retrial, one justice dissenting with respect to ordering a new trial. Webster v. State, 274 Ind. 668, 673, 413 N.E.2d 898, 902 (1980) (Webster I ). Appellant again was convicted and again was sentenced to two consecutive 45 year terms of imprisonment. The Supreme Court of Indiana, one justice dissenting, affirmed appellant's second conviction. --- Ind. ---, 442 N.E.2d 1034 (1982) (Webster II ). He currently is serving his sentence.

Appellant argues that, since the Supreme Court of Indiana reversed his first conviction on the ground of the insufficiency of the evidence, under the United States Supreme Court's holding in Burks, supra, the double jeopardy clause of the Fifth Amendment barred retrial and the conviction resulting from the retrial was a nullity. The district court held that appellant's first conviction was reversed because of trial error, rather than insufficient evidence, and that Burks did not bar retrial.

For the reasons stated below, we reverse the judgment of the district court and remand the case to that court with instructions to issue the writ of habeas corpus.

I.

We summarize those facts and Indiana state court proceedings believed necessary to an understanding of the legal issues raised on appeal.

(A) First Trial

Betty DeBowles and Robin Thomas were last seen alive on December 16, 1977. Betty's body was found two days later, slumped in the front seat of Robin's car which was parked in a secluded area. Betty had been shot once in the head. Two additional spent bullets were recovered from the car. Robin's body was not discovered until April 9, 1978 when a passer-by saw his body lying in a drainage ditch. Although the body had lacerations on the chest and throat, it was later determined that Robin died from drowning or exposure. A .32 caliber revolver was found near Robin's body. A short time after the discovery of Robin's body, the police arrested appellant Dirk Webster, Garland Hicks, Aurelius James Allen and O.D. Webster, the latter being appellant's father. The four men were indicted for the two murders.

Pursuant to a written plea agreement, Allen agreed to testify against Hicks and to plead guilty to two counts of involuntary manslaughter and one count of robbery. He was sentenced to three concurrent six-year terms of imprisonment. A second robbery count was dismissed. Allen testified that he was told by the judge at his plea hearing that he also was expected to testify against appellant and O.D. Webster, to which he agreed.

Appellant's first trial commenced before a jury on March 26, 1979 in the Superior Court of Lake County, Indiana. On the first day of trial, the state called Betty's mother. She testified regarding the last time she saw her daughter alive and identified a photograph of her daughter. The photograph was admitted in evidence. The state's second witness was a sergeant in the Gary, Indiana, police department. He testified as to what he saw when he arrived at the scene of the murder on December 18, 1977. He authenticated a photograph of Betty's body as it was found by the police. This photograph also was admitted in evidence, as were other photographs of the body and the surroundings. The sergeant testified that he found two spent bullets in the car, in addition to the bullet that remained in Betty's body, but that no gun was found.

The state next called the Chief Investigator of the Lake County coroner's office. He authenticated a photograph of Robin's body as it was found on April 9, 1978. He testified about the condition of Robin's body, stating that, although it was partially decomposed, lacerations on the chest and neck were discernible.

Also on the first day of trial, the state produced the passer-by who discovered Robin's body and the .32 caliber revolver which was found nearby. Another Gary police officer testified that the revolver had two spent and four live rounds in the cylinder. The revolver was admitted in evidence. Robin's father testified regarding his identification of his son's body and as to specific items of jewelry that were missing when the body was found.

The state then called to the stand Aurelius James Allen, one of appellant's co-defendants who had pleaded guilty to lesser offenses. Allen answered the questions put to him by the prosecutor regarding his name and address; the fact of his incarceration; his indictment for the murders of Betty and Robin; his guilty plea; and his agreement to testify against appellant, Hicks and O.D. Webster in return for a relatively light sentence. The prosecutor showed Allen a handwritten unsigned letter which Allen identified as one he received while in prison the previous summer. The letter, which later was admitted in evidence, stated:

"Hey Rap,

I read of your unfortunate situation so I had to write an [sic] see if you're still cool. We both know what happened to pee-wee so don't let these honkies make a snitch out of you. Vette's life was spared because we was cool but harpo felt different. Also let me remind you of this, The pigs figure you & Vette were up on this from jump so if you decide to flip the weight can be shifted once again. If you try an [sic] jam us, you'll only jam yourself or 'Vette ' an [sic] that's your main concern isn't it?" (emphasis in original)

The prosecutor asked Allen if he could identify the handwriting on the letter or the envelope. Allen said he could not. The prosecutor questioned Allen regarding prior statements in which Allen identified the handwriting as that of Dirk Webster. Allen responded that he did not recall making the statements.

The prosecutor then questioned Allen regarding his relationships with appellant, Robin and Yvette Thomas. The latter was known as "Vette", and was Robin's sister-in-law. Allen testified that he knew both appellant and Robin, but answered "I don't know" or "I don't remember" to every other question. He testified that he did not recall ever having given any other answers to the same questions at an earlier time.

Allen was shown a copy of his plea agreement and was asked if he recognized it. He said he did. He was asked if he recalled testifying against Garland Hicks. He said "Yes". He was asked if he recalled being told by the judge at his plea hearing that he also was expected to testify against the two Websters as part of the plea bargain. He said that he did not remember.

At that point, the jury was excused. A conference between the court and counsel was held in chambers, on the record. Appellant's counsel objected that the witness was being intimidated by an implied threat to revoke his plea agreement, that he faced a potential contempt charge, and that he should be afforded counsel. The court decided that it would instruct Allen that, if he continued to refuse to testify, his plea agreement would be breached and he would be required to stand trial for the two murders. Also during the chambers conference the court indicated to the prosecutor that, as long as Allen said he did not remember, as opposed to refusing to testify, the prosecutor would be permitted to use Allen's prior statements for impeachment purposes. 2

The jury returned to the courtroom. The state continued its examination of Allen. The witness was asked a long series of questions regarding his prior statements implicating appellant in the two murders. To each question, Allen answered "I don't remember". The questioning occasionally took the form of a direct question, but mostly it consisted of the prosecutor's reading questions and answers from Allen's prior testimony and then asking the witness if he recalled having been asked that question and having given that answer.

After a short time, appellant's counsel requested the court to instruct the jury to the effect that prior inconsistent statements could be used for impeachment purposes only, but not as substantive evidence. The court declined to give the instruction, stating that it was "premature at this point."

The questioning continued in the manner described for some period of time, with Allen continuing to state that he did not recall having been asked the questions and having given the answers read to him. The questions read by the prosecutor and the answers previously given by the witness described for the jury in great detail the events that took place on the night of the murders. After the prosecutor read from the witness's...

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