Butler v. Duckworth
| Decision Date | 07 November 1989 |
| Docket Number | Civ. No. S88-525. |
| Parties | Kennis BUTLER, Petitioner, v. Jack R. DUCKWORTH, and Indiana Attorney General, Respondents. |
| Court | U.S. District Court — Northern District of Indiana |
Kathryn B. O'Neall, Remington, Ind., for petitioner.
Wayne E. Uhl, Indianapolis, Ind., for respondents.
On August 19, 1988, the petitioner, Kennis Butler, appearing pro se, filed a petition seeking habeas corpus relief under 28 U.S.C. § 2254. The court subsequently appointed counsel for the petitioner. The respondents have filed their return and the state court record. The case is now ripe for ruling.
In 1982, the petitioner was convicted of robbery, a Class B felony1, and criminal recklessness, a Class D felony2, by a jury in the Porter County Superior Court in Indiana. He was tried with two codefendants, Rodney Phillips and McKinley Dudley. Phillips also was convicted of robbery, a Class B felony, and criminal recklessness, a Class D felony. Dudley was convicted of aiding a robbery, a Class B felony, and was further found to be an habitual offender. Two additional accomplices, Edward Pointer and Cecil Lewis, cooperated with the prosecution. Edward Pointer pled guilty and received a reduced sentence in exchange for his testimony regarding the crimes. Cecil Lewis was granted immunity in exchange for his testimony regarding the crimes. The petitioner, Phillips, and Dudley filed a joint appeal and the Supreme Court of Indiana unanimously affirmed their convictions in Dudley v. State, 480 N.E.2d 881 (Ind.1985).
The state's evidence at trial showed that on May 27, 1982, the petitioner, Dudley, Phillips, Pointer, and Lewis drove to Portage, Indiana to commit a bank robbery at the Chesterton State Bank. The petitioner, Phillips and Pointer were in the getaway car, a blue Oldsmobile. Pointer was driving. Dudley's girlfriend, Gerri Peters, owned the Oldsmobile. Dudley and Lewis followed in the switch getaway car, a green Cadillac. Dudley was driving, and he owned the Cadillac.
Once in Portage, the petitioner, Phillips and Pointer drove the Oldsmobile to the bank while Dudley and Lewis drove the Cadillac to the prearranged switch point. When arriving at the switch point, Dudley decided that he did not like the location. Dudley and Lewis then left the switch point and drove to Gary, Indiana.
Meanwhile, the petitioner, Phillips and Pointer arrived at the bank. The petitioner and Phillips entered the bank. Pointer remained in the Oldsmobile to facilitate their escape. In the bank, the petitioner approached a bank teller, Kay Leggett. He pulled out a handgun and proceeded to go behind the counter. He removed approximately $8,835.00. Phillips, meanwhile, was holding a handgun and was pacing back and forth in the lobby. The petitioner and Phillips then fled from the bank and escaped in the Oldsmobile. Pointer was driving. The petitioner was in the front passenger seat, and Phillips was in the back seat.
The state's evidence further showed that the bank immediately notified the Portage Police Department about the robbery. Sergeant Fred Trathen received a radio dispatch describing the getaway car. Sergeant Trathen located an Oldsmobile which fit the description and a high-speed chase then ensued on Interstate 94. Officer Charles Heimberg, in another police vehicle, joined the pursuit of the Oldsmobile. During the chase, the individual in the back seat, Phillips, fired gunshots at the pursuing police.
The chase finally ended when Pointer stopped the Oldsmobile on the side of the road. The petitioner, Phillips and Pointer then fled from the vehicle and eventually were apprehended. Phillips was shot by the police while he was fleeing. The police recovered the stolen money, which included $500.00 of bait money.
The petitioner first contends that his due process rights were violated when the state trial court allowed a state's witness to testify to receiving anonymous phone threats the night before the trial. At trial, Edward Pointer, the driver of the Oldsmobile and a state's witness, testified that he received anonymous phone threats the night before the trial. All defendants moved for a mistrial and to strike the testimony contending that the testimony was prejudicial. The prosecution argued that the threat testimony was admissible in order to explain the nervousness of Pointer. The state trial court agreed with the prosecution. Consequently, the motions for mistrial and to strike the testimony were denied.
McKinley Dudley, the petitioner's codefendant at his state trial, raised the threat testimony issue in a habeas corpus petition filed with this court. On appeal from this court, the Seventh Circuit held that the due process rights of Dudley were violated when the state trial court admitted the threat testimony into evidence. Dudley v. Duckworth, 854 F.2d 967 (7th Cir.1988) (Coffey, J., dissenting), cert. denied, 490 U.S. 1011, 109 S.Ct. 1655, 104 L.Ed.2d 169 (1989). The court concluded that "the record strongly suggests that the evidence of threats was intended more to prejudice the defendants ... than to explain away any nervousness of the witness." Id. at 972 (emphasis added). The court found that the error was so prejudicial that it resulted in a denial of fundamental fairness in violation of the Fourteenth Amendment of the Constitution of the United States. Id.
In Dudley, the Seventh Circuit also concluded that the constitutional error, as applied to McKinley Dudley, was not harmless beyond a reasonable doubt. Id. The court reasoned that "the evidence of Dudley's guilt was impressive but not overwhelming." Id. (citing United States ex rel. Savory v. Lane, 832 F.2d 1011, 1020 (7th Cir.1987)). The evidence against Dudley was characterized by the court as follows:
In a trial that lasted more than two weeks and involved approximately thirty-three witnesses, only two witnesses, Lewis and Pointer, implicated Dudley in the robbery. Lewis and Pointer, admitted accomplices testifying in exchange for immunity or dismissal of charges, are inherently dubious witnesses. The strength of their sometimes conflicting testimony does not approach the level required to render this constitutional error harmless.
Id. (footnote omitted). The court further emphasized that the constitutional error could not be considered harmless since it totally undermined Dudley's alibi defense. Id. Testifying at trial, Dudley denied knowledge of the bank robbery and claimed he was traveling with Cecil Lewis on May 27, 1982, to fix a friend's car.
In a lengthy dissent, Judge Coffey challenged the majority's conclusion that the evidence was prejudicial. He then argued that even if the admission of the threat testimony was constitutional error, the error was harmless beyond a reasonable doubt. He reasoned that the evidence against Dudley was overwhelming:
Beyond doubt the evidence to convict Dudley was "overwhelming," Savory, 832 F.2d at 1020, and Pointer's threat testimony did not contribute to the jury's decision. The majority, instead, chooses to downplay the plethora of evidence, stating that "the evidence of the petitioner's guilt was impressive but not overwhelming." Dudley, in organizing the bank robbery, participated in several discussions of the robbery plan prior to the actual crime, including the one that took place in his own home. Secondly, he supplied the necessities, the cars and guns, to facilitate the plan and even went so far as to check out the operating capabilities of one of the co-defendant's guns prior to the bank robbery. He was present when the parties agreed to the division of the robbery loot equally. He drove with Lewis to the planned switching point where the robbers were going to change cars after the bank robbery. He told his girlfriend that he let "a friend" use her car when in fact he planned for its use in facilitating the robbery. And finally, he offers no valid explanation for his presence in Portage on the day the armed robbery took place. I am convinced, as was the jury, the Indiana Supreme Court, and the district court, that the evidence of Dudley's guilt was "overwhelming."
Id. at 979 (Coffey, J., dissenting opinion).
Clearly a constitutional error occurred at the petitioner's state trial. The error applies with equal force to the petitioner. See id. at 972 () (emphasis added). Now the court must determine whether the constitutional error, as applied to this petitioner, was harmless beyond a reasonable doubt.
Constitutional errors in a criminal trial are grounds for reversal unless they are "harmless beyond a reasonable doubt." Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 828, 17 L.Ed.2d 705 (1967). The petitioner is entitled to a fair trial not a perfect one. Delaware v. Van Arsdall, 475 U.S. 673, 681, 106 S.Ct. 1431, 1436, 89 L.Ed.2d 674 (1986). See also Sulie v. Duckworth, 864 F.2d 1348, 1356 (7th Cir. 1988), cert. denied, 493 U.S. 828, 110 S.Ct. 93, 107 L.Ed.2d 58, 58 U.S.L.W. 3214 (1989); Ortega v. O'Leary, 843 F.2d 258, 262 (7th Cir.1988), cert. denied, 488 U.S. 841, 109 S.Ct. 110, 102 L.Ed.2d 85 (1988). The harmless error rule "promotes public respect for the criminal process by focusing on the underlying fairness of the trial rather than on the virtually inevitable presence of immaterial error." Van Arsdall, 475 U.S. at 681, 106 S.Ct. at 1436. See also United States ex rel. Thomas v. O'Leary, 856 F.2d 1011, 1017 (7th Cir.1988).
The initial inquiry for the court then "is whether absent the constitutionally-forbidden evidence, honest and fair-minded jurors might very well have brought in not-guilty verdicts." Burns v. Clusen, 798 F.2d 931, 943 (7th Cir.1986) (citing Chapman v. California, 386 U.S. 18, 26, 87 S.Ct. 824, 829 (1967)). The court must determine "`whether there is a reasonable possibility that the...
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