Clark v. Duckworth
| Decision Date | 13 July 1990 |
| Docket Number | No. 89-3497,89-3497 |
| Citation | 906 F.2d 1174 |
| Parties | Charles CLARK, Petitioner-Appellee, v. Jack R. DUCKWORTH and Indiana Attorney General, Respondents-Appellants. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Kathryn Butler O'Neall, O'Neall & O'Neall, Remington, Ind., for petitioner-appellee.
David A. Nowak, Dist. Atty. Gen., Linley E. Pearson, Atty. Gen., Indianapolis, Ind., for respondents-appellants.
Before CUMMINGS, CUDAHY and KANNE, Circuit Judges.
A jury convicted Charles Clark of attempted rape, battery and intimidation in connection with the rape and beating of a woman in Indiana. After filing several post-trial motions and unsuccessful appeals to Indiana state courts, Clark petitioned a federal district court for habeas corpus relief pursuant to 28 U.S.C. section 2254. That court determined that Clark's constitutional rights had been violated at trial and therefore granted his petition subject to a new trial. Jack R. Duckworth, the Superintendent of the Indiana State Prison at Michigan City, Indiana, appeals that decision to us. We now vacate and remand.
The facts supporting the jury's conviction of Clark are detailed in Clark v. State, 447 N.E.2d 1076 (Ind.1983). They need not detain us, however, for we are concerned primarily with constitutional errors that occurred at trial. We pause here only to note that the jury apparently believed that Charles Clark forced Kathy Tompkins into a barn, struck her and attempted to rape her. The jury was not asked to consider the case of Clark's accomplice in this crime, Terry Ray Isaacs, because he had earlier pleaded guilty to rape. But the jury did become acquainted with Isaacs when the prosecutor in Clark's trial called Isaacs to the stand to testify to the facts surrounding the crime. In this appeal, we must address the substance of Isaacs's testimony to the jury, for it is this testimony that resulted in a violation of Clark's constitutional rights.
At first, attorneys for the state and the defendant disagreed about the propriety of calling Isaacs to the stand. To resolve this dispute--and to persuade the court that the testimony should be admitted--the prosecution offered to establish the scope of its direct examination of Isaacs outside the presence of the jury. After the jury had been excused, the prosecutor asked Isaacs to explain to the court how he would testify. Isaacs responded: "Uh, I--I can't, because I've been threatened, and uh, well on two different occasions I've been threatened, and I just can't on account of my life is in jeopardy." Memorandum and Order at 14 (N.D. Ind. Aug. 31, 1989) (quoting Record at 608-22). Essentially, Isaacs told the court that he could not testify because two inmates at the prison threatened to kill him if he "snitched" about the case. At this point, Clark's lawyer vigorously objected to the prosecutor's request to put Isaacs on the stand; he claimed that he would be unable effectively to cross-examine Isaacs if Isaacs refused to answer any questions regarding the case. Still, the trial judge allowed the state to call Isaacs to the stand but warned the prosecutor to confine his questions to whether Isaacs would testify. The court expressly confirmed that neither the prosecutor nor Isaacs could refer to the alleged threats. Id. at 18-19.
Upon the jury's return, the following colloquy took place in the courtroom:
Q. [Prosecutor] Please state your name for the record.
A. Terry Ray Isaacs.
Q. Where are you presently living?
A. Michigan City State Prison.
Q. Are you serving a sentence there?
A. Yes sir, I am.
Q. For what?
A. For rape.
Q. Uh, did you plead guilty to the charge?
A. Yes sir.
Q. And the rape of whom?
A. Kathy Tompkins.
Q. Is there anything you want to tell this jury about the circumstances surrounding that?
A. Uh, nothing that I'm--that I've been threatened and I can't testify.
MR. SHAW: Your Honor, I'm going to object and ask that answer be stricken the answer is either yes or no.
MR. SHAW: We've been through this.
It'll be stricken, grant the objection and strike the answer.
Q. You understand that your testimony could not incriminate yourself, you have--there's nothing pending against you and you could be under contempt of Court for failure to answer any proper question of the Prosecutor, do you understand that?
A. Yes. I'm asking you for your protection of these threats.
All right. You can step aside.
MR. SHAW: Your Honor, I would ask--.
Any remark about threats will be disregarded by the jury.
Id. (emphasis supplied).
The statements made at Clark's trial by Isaacs--and then reinforced by the trial judge in his "curative" instruction to the jury--clearly violated Clark's Fourteenth Amendment right to a fair trial free from prejudicial and irrelevant evidence as outlined in Dudley v. Duckworth, 854 F.2d 967 (7th Cir.1988), cert. denied, --- U.S. ----, 109 S.Ct. 1655, 104 L.Ed.2d 169 (1989). In Dudley, a case remarkably similar to this one, a codefendant told the court that he feared testifying against the defendant because he had received phone calls--presumably made to dissuade him from testifying--threatening harm to his girlfriend, mother and aunt. Counsel for the defendant objected, noting that the testimony about threats was highly prejudicial and not probative in light of the fact that the prosecution did not present any evidence linking the telephone threats to the defendant. Still, the trial judge denied counsel's motions to strike the testimony and to declare a mistrial. After the presentation of evidence, the jury convicted Dudley of aiding a bank robbery. On appeal, we reversed the conviction, reasoning that the codefendant's testimony concerning threats unfairly prejudiced the defendant's case: Dudley, 854 F.2d at 972. 1
Clark's case is similar: the state trial judge failed to take appropriate action after a codefendant, who had already pleaded guilty to the same crime, told the jury that he had received threats to prevent him from testifying. This testimony may have led the jury to believe that Clark, ultimately, was behind the threats, despite the fact that the government presented no evidence to support this implication. To make matters worse (and, perhaps, to reinforce the link between the threats and Clark's underlying guilt), the trial judge then questioned Isaacs about the threats and told the jury "[a]ny remark about threats will be disregarded...." Memorandum and Order at 23 (emphasis supplied).
There is little question, we believe, that these proceedings violated Clark's Fourteenth Amendment rights under Dudley v. Duckworth. We are not alone in this belief: even Duckworth, the appellant in this case, agrees with our conclusion. Appellants' Brief at 7 (). But Duckworth contends that Clark waived his right to make this argument in federal court (during habeas proceedings) because he failed to make it first in state court. In essence, Duckworth asserts that Clark's procedural default precludes federal review of the Dudley violation.
Duckworth argues, and Clark does not directly contest, that Clark never raised the Dudley issue in any of his state court proceedings. Clark concedes in his brief "that he did not raise an error as to the admission of the testimony by Isaacs" before reaching federal court. Appellee's Brief at 9. But Clark contends that he raised the Dudley issue through his ineffective assistance of counsel claim, which he made in his appeal following the denial of post-conviction relief. In that proceeding, he argued:
Counsel was ineffective in failing to request a mistrial over Isaacs' statements. "The naive assumption that prejudicial effects can be overcome by instructions to the jury ... all practicing lawyers know to be unmitigated fiction." Krulewitch v. State (1949), 336 U.S. 440 [69 S.Ct. 716, 93 L.Ed. 790].... The court and the State were aware of the possibility that Isaacs would disclose his reason for not testifying. Isaacs should never have been placed on the stand at all. Doing so caused the exact harm that counsel had sought to prevent--the implication that Clark was guilty because he had threatened Isaacs not to testify. Had counsel requested a mistrial, the court would have had to grant it under Ramos [v. State, 433 N.E.2d 757 (Ind.1982) ]. Counsel's failure to act prejudiced Clark. See Strickland v. Washington (1984), 466 U.S. 668 [104 S.Ct. 2052, 80 L.Ed.2d 674]....
Brief of Petitioner-Appellant at 11 (reprinted in Supp.App. at 45). Clark believes that this analysis sufficiently raises the Dudley argument to preclude procedural default.
We disagree. In Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989), the Supreme Court determined that a habeas petitioner, who attempted to challenge the method by which the prosecutor chose the jurors that convicted him, waived an Equal Protection claim based upon Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965), by not raising it in the state proceedings, despite the fact that he had expressly maintained a Sixth Amendment fair cross-section claim in those same proceedings. Although the Equal Protection claim and the Sixth Amendment claim arose from the same general issue--a fairly constituted jury--the Court concluded that Teague's failure specifically to raise the Equal Protection claim in the state court proceedings resulted in its waiver. Teague, 109 S.Ct. at...
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