Bruce v. Duckworth, s. 80-2289

• Citation: 659 F.2d 776
• Decision Date: 27 October 1981
• Docket Number: 80-2290,Nos. 80-2289,s. 80-2289
• Parties: Sandy Paul BRUCE, Petitioner-Appellant, v. Jack DUCKWORTH, Warden, Respondent-Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)

Page 776

659 F.2d 776

Sandy Paul BRUCE, Petitioner-Appellant, v. Jack DUCKWORTH, Warden, Respondent-Appellee.

Nos. 80-2289, 80-2290.

United States Court of Appeals, Seventh Circuit.

Argued April 3, 1981.

Decided Sept. 14, 1981.

As Amended Sept. 17, 1981.

Rehearing and Rehearing En Banc Denied Oct. 27, 1981.

Terry Johnston, Johnston & Hoebner, Valpaiso, Ind., for petitioner-appellant.

David L. Steiner, Asst. U. S. Atty., Theodore L. Sendak, U. S. Atty., Indianapolis, Ind., for respondent-appellee.

Before FAIRCHILD, Circuit Judge, GIBSON ^*, Senior Circuit Judge, and CUDAHY, Circuit Judge.

FLOYD R. GIBSON, Senior Circuit Judge.

These cases, consolidated for decision in the district court and in this court, refer to two entirely distinct prosecutions and trials. In April, 1975, Sandy Paul Bruce was convicted of two counts of first-degree murder. In February, 1976, he was convicted of rape and armed rape. Bruce here appeals the denial of his petitions, attacking his state court convictions, for a writ of habeas corpus. We affirm the district court's denial of relief.

Bruce was convicted by a jury of two counts of first-degree murder for the killing, on February 4, 1974, of Stanley and Lillian Machin, an elderly couple, in their Beverly Shores, Indiana, home. He was sentenced to life imprisonment on each conviction.

Bruce was convicted by a jury for a rape and armed rape perpetrated on December 7, 1973, at a location near the Machin residence, wherein he held a man and woman at gunpoint, and twice raped the woman. He was sentenced to an indeterminate term of two to twenty-one years for the rape and a determinate term of twenty-five years for the armed rape, these sentences to run consecutively.

Bruce's direct appeals to the state supreme court were consolidated on the motion of the court. The convictions were affirmed in a thirty-seven page published opinion, Bruce v. State, 268 Ind. 180, 375 N.E.2d 1042 (1978), wherein it was ordered that the sentences imposed upon the rape convictions be served concurrently rather than consecutively. Id. 375 N.E.2d at 1088. Bruce then filed a petition in the United States Supreme Court for a writ of certiorari, which was denied. Bruce v. Indiana, 439 U.S. 988, 99 S.Ct. 586, 58 L.Ed.2d 662 (1978).

Bruce filed two petitions for habeas corpus relief, 28 U.S.C. § 2254, in the United States District Court for the Northern District of Indiana, South Bend Division. On July 29, 1980, Judge Sharp, after reviewing the entire state court record concerning both the murder and rape trials, consolidated the petitions and entered a memorandum and order denying relief.

The facts relating to the Machin murders and the rape offenses are set out in some detail in the published opinion of the state appellate court, Bruce v. State, supra. We therefore will present only those facts which are relevant to this appeal.

After Bruce was indicted for the Machin murders, he appeared in a lineup at which he was identified by the victim of the December 7 rapes. Bruce challenged the validity of the lineup on the grounds that he was deprived of the assistance of counsel.

A Mrs. Whitehouse was also present at the lineup. Mrs. Whitehouse and her husband were neighbors of the Machins. A man, later identified as petitioner Bruce, appeared at their home in the early morning hours of the day the Machins were murdered, saying that he had been in an automobile accident; he left before the Whitehouses could call the police.

The rape victim testified, over objection, at petitioner's murder trial and identified petitioner as the man who had raped her. Mr. Whitehouse was unable to identify petitioner at trial as the man who came to his door. However, Mrs. Whitehouse so identified petitioner, again over objection. Bruce challenged Mrs. Whitehouse's in-court identification testimony on the grounds that she had been exposed to an unnecessarily suggestive photographic display before trial. The trial court never conducted hearings on Bruce's motions to suppress the testimony of the rape victim or Whitehouse, and his objections to the in-court identifications of him at trial were overruled.

The Indiana Supreme Court found that the trial court erred in failing to conduct hearings on the admissibility of the identification testimony. However, in regard to the testimony of the rape victim (identified as CEP), the court concluded that

had a hearing been held, a reasonable trier of fact could not fail to find a basis for CEP's trial identification independent of the out-of-court lineup. * * * The conclusion that an independent basis existed for CEP's identification of appellant flows inexorably from the trial evidence, and we note that a thorough exploration of CEP's observation of appellant appears to have been made on cross-examination. Since a properly conducted hearing into the issue would not have resulted in the exclusion of the challenged evidence, the error in failing to hold a hearing must necessarily be harmless. Stowers v. State, (1977) (266) Ind. (403), 363 N.E.2d 978.

268 Ind. at 209, 375 N.E.2d at 1059. And, in regard to the testimony of Mrs. Whitehouse, the court found that even if its admission was improper, any error was "harmless beyond a reasonable doubt," id. (as Bruce's presence in the Machin house was overwhelmingly established by physical evidence).

During the murder trial, a juror stood up and said, "I have a problem here. I think the jury does, in that the we hear discussion going on here in the audience and it's disturbing at least to us here. I would appreciate it if you would caution them not to discuss the case." The judge then immediately admonished the members of the audience and instructed them "not to discuss anything (in the courtroom) in the future." The defendant's subsequent motions to have the jury polled and for a mistrial were denied. The state court of appeals and the federal district court below both found that there was no showing, by petitioner or in the record, of a substantial likelihood of prejudice which would have required the trial court to make further inquiry into the matter. See Bruce v. State, 268 Ind. at 224-225, 375 N.E.2d at 1066-67; Lindsey v. State, 260 Ind. 351, 357, 295 N.E.2d 819, 823 (1973).

I.

We begin our discussion of the merits of petitioner's appeal by noting the limited review power of federal courts in habeas corpus proceedings. We are called upon, as was the federal district court, to make our determinations based on the identical record that was considered at length by the state appellate court. Findings of fact made by a state appellate court are considered "determination(s) after a hearing on the merits" so that they fall within the strictures of 28 U.S.C. § 2254(d). ¹ Sumner v. Mata, 449 U.S. 539, 546, 101 S.Ct. 764, 768, 66 L.Ed.2d 722, 730 (1981). Our authority, therefore, to come to different factual conclusions in this habeas proceeding, is limited. The state court findings are afforded a "presumption of correctness" and, in the absence of a specific finding that the contested matter falls within the purview of paragraphs 1 through 7 of 28 U.S.C. § 2254(d), we must defer to the state court findings.

If none of those seven conditions were found to exist, or unless the habeas court concludes that the relevant state determination is not "fairly supported by the record," "the burden shall rest upon the applicant to establish by convincing evidence that the factual determination by the State court was erroneous."

Sumner v. Mata, supra, 449 U.S. at 550, 101 S.Ct. at 771, 66 L.Ed.2d at 733 (footnote omitted) (emphasis supplied by Supreme Court).

II.

Petitioner objects to the use of the in-court identification testimony of the rape victim (CEP) and Mrs. Whitehouse. He asserts that the testimony should have been suppressed because pretrial confrontation procedures between him and the witnesses were unconstitutional.

Bruce objects to the admission of CEP's identification testimony on the ground that it was tainted by CEP's pretrial identification of him during a lineup at which his counsel was not present. Bruce objects to the admission of Whitehouse's testimony on the ground that it was the product of irreparable misidentification caused by an unnecessarily suggestive photographic display shown to her before trial. Petitioner relies on United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1966), and Martin v. State of Indiana, 521 F.2d 682 (7th Cir. 1975), for his contention that the district court should have held an evidentiary hearing to determine these issues. His reliance is misplaced.

On Bruce's direct appeal to the state supreme court, the court found that the trial court erred in not conducting hearings on Bruce's pretrial motions to suppress. Bruce v. State, supra 375 N.E.2d at 1058. This finding might be called into question under the recent Supreme Court decision in Watkins v. Sowders, 449 U.S. 341, 101 S.Ct. 654, 66 L.Ed.2d 549 (1981) (trial court not required to conduct hearing whenever defendant contends that witness's identification arrived at improperly). However, we need not guess as to the application of Watkins by the Indiana state courts. Both the state court and the district court found that "a properly conducted hearing into the issue would not have resulted in the exclusion of the challenged evidence(. Thus) the error in failing to hold a hearing must necessarily be harmless." Bruce v. State, supra 375 N.E.2d at 1059 (citations omitted).

"CEP identified (Bruce) at trial but no testimony concerning her line-up identification was elicited by the State." Bruce v. State, supra at 1059. See Hatcher v. State, --- Ind. ---, --- - ---, 414 N.E.2d 561, 563-66 (1981). Therefore, we are not dealing with a per se exclusionary rule, as we would be if the testimony was the direct result of an illegal lineup. Hatcher v. State, supra at 565-66.

It is settled law that in-court identifications need not be...