Baxter v. Duckworth
| Decision Date | 10 February 1989 |
| Docket Number | Civ. No. S88-589. |
| Citation | 761 F. Supp. 576 |
| Parties | Richard Lee BAXTER, Petitioner, v. Jack R. DUCKWORTH; and Indiana Attorney General, Respondents. |
| Court | U.S. District Court — Northern District of Indiana |
Richard Lee Baxter, pro se.
John M. White, Indianapolis, Ind., for respondents.
On September 23, 1988, pro se petitioner, Richard Lee Baxter, filed a petition seeking relief under 28 U.S.C. § 2254. The return filed by respondents on December 21, 1988, demonstrates the necessary compliance with the mandates of Lewis v. Faulkner, 689 F.2d 100 (7th Cir.1982).
The petitioner was convicted in the Noble Superior Court at Albion, Indiana, of two counts of Child Molesting, two counts of Incest and was found to be an Habitual Offender. On September 6, 1984, he was sentenced to a term of 20 years on each molesting charge, four years on each incest charge, and ten years were added to each sentence for being an habitual offender. The sentences were concurrent. A direct appeal was taken by the petitioner to the Supreme Court of Indiana, which affirmed the aforesaid convictions in an opinion authored by Chief Justice Shepard, as is reported in Baxter v. State, 522 N.E.2d 362 (Ind.1988). Justice DeBruler dissented at pages 370-371. The full state record has been filed and examined pursuant to the mandates of Townsend v. Sain, 372 U.S. 293, 83 S.Ct. 745, 9 L.Ed.2d 770 (1963).
The issues raised here are:
The basic facts in the case are briefly stated in a single paragraph in Chief Justice Shepard's opinion as follows:
The evidence at trial showed that Baxter had sexually abused his stepdaughters for several years before he was charged. The victims testified that he had sexual intercourse with them and required them to perform oral sex several times monthly during the year before trial. The girls reported the molestations to other family members, who confronted Baxter but did not report to authorities until shortly before he was charged. The victims revealed the attacks charged in graphic language during discussions with their social worker.
The two stepdaughters were born in 1974 and 1976, respectively. They testified at the trial and were subjected to cross-examination. Specific dates were not identified except that one of the stepdaughters identified one such occasion as being about a month or so before her birthday in 1983. A welfare caseworker and relatives of the victim testified that the victims had related descriptions of these sex acts with the petitioner on other occasions. The caseworker interviewed one victim on March 7, 1984, and the caseworker was able to determine that the last incident involving that victim had occurred on March 3, 1984. The habitual phase of the trial was brought to light by the fact that prior convictions were proven by certified copies of docket sheets, the petitioner's mother testified that it was the petitioner who was convicted of these prior felonies, and the petitioner himself admitted earlier in the trial to being convicted in one of these offenses. The requirements of Williams v. Duckworth, 738 F.2d 828 (7th Cir.1984) were met.
Justice Stewart, speaking for the Supreme Court of the United States in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), stated:
A judgment by a state appellate court rejecting a challenge to evidentiary sufficiency is of course entitled to deference by the federal courts, as is any judgment affirming a criminal conviction. But Congress in § 2254 has selected the federal district courts as precisely the forums that are responsible for determining whether state convictions have been secured in accord with federal constitutional law. The federal habeas corpus statute presumes the norm of a fair trial in the state court and adequate state postconviction remedies to redress possible error. See 28 U.S.C. § 2254(b), (d). What it does not presume is that these state proceedings will always be without error in the constitutional sense. The duty of a federal habeas corpus court to appraise a claim that constitutional error did occur — reflecting as it does the belief that the "finality" of a deprivation of liberty through the invocation of the criminal sanction is simply not to be achieved at the expense of a constitutional right — is not one that can be so lightly abjured.
Id. at 323, 99 S.Ct. at 2791. See also Sumner v. Mata, 449 U.S. 539, 101 S.Ct. 764, 66 L.Ed.2d 722 (1981); Dooley v. Duckworth, 832 F.2d 445 (7th Cir.1987), cert. denied, 485 U.S. 967, 108 S.Ct. 1239, 99 L.Ed.2d 438 (1988); United States ex rel. Haywood v. O'Leary, 827 F.2d 52 (7th Cir.1987); Bryan v. Warden, Indiana State Reformatory, 820 F.2d 217 (7th Cir. 1987), cert. denied, 484 U.S. 867, 108 S.Ct. 190, 98 L.Ed.2d 142 (1987); Shepard v. Lane, 818 F.2d 615 (7th Cir.1987), cert. denied, 484 U.S. 929, 108 S.Ct. 296, 98 L.Ed.2d 256 (1987); and Perri v. Director, Department of Corrections, 817 F.2d 448 (7th Cir.1987), cert. denied, 484 U.S. 843, 108 S.Ct. 135, 98 L.Ed.2d 92 (1987). This court has no difficulty in determining that a rational trier of fact could have found proof beyond a reasonable doubt with reference to the petitioner's guilt of all the aforesaid offenses.
The petitioner requests that this court rule as a matter of constitutional due process under the Fourteenth Amendment that the testimony of these minor victims is absolutely precluded. Proper respect for our federalistic system certainly demands a different approach. There is nothing in the case law that compels this court to visit this kind of a heavy-handed federal constitutional mandate upon the courts of the State of Indiana. Under the federalistic system there is still some considerable leeway within the Constitution to work out rules of evidence, especially in highly-sensitive matters such as this. See Burgett v. Texas, 389 U.S. 109, 88 S.Ct. 258, 19 L.Ed.2d 319 (1967). Certainly, under the law of Indiana the testimony of the witnesses was admissible. See Patterson v. State, 263 Ind. 55, 324 N.E.2d 482 (1975).
Neither is this court prepared to state as a matter of absolute constitutional due process doctrine that the state trial judge's procedure in permitting the mother of one of the nine year-old victims to sit silently by that victim while that victim testified. Again, this is a state procedure that does not violate the due process clause of the Fourteenth Amendment. See Patterson v. New York, 432 U.S. 197, 97 S.Ct. 2319, 53 L.Ed.2d 281 (1977). It has been recently suggested in this circuit that a habeas court acting under § 2254 is not in a position to re-weigh the credibility, believability and weight to be given to witnesses' testimony that a United States district judge sees only in the written record. See Weidner v. Thieret, 866 F.2d 958 (7th Cir. 1989).
The petitioner attempted to file a belated notice of alibi because of his previous failure to comply with the Notice of Alibi Defense and Procedures in the Indiana Code, which provide as follows:
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