Dillbeck v. Duckworth

Decision Date25 April 1984
Docket NumberNo. S83-493.,S83-493.
Citation585 F. Supp. 1074
PartiesJames LeRoy DILLBECK, Petitioner, v. Jack R. DUCKWORTH, Superintendent, and Indiana Attorney General, Respondents.
CourtU.S. District Court — Northern District of Indiana

COPYRIGHT MATERIAL OMITTED

James LeRoy Dillbeck, pro se.

Linley E. Pearson, Atty. Gen. of Indiana, Robert B. Wente, Deputy Atty. Gen., Indianapolis, Ind., for respondents.

MEMORANDUM AND ORDER

ALLEN SHARP, Chief Judge.

This petition for writ of habeas corpus was filed pursuant to 28 U.S.C. § 2254 by an inmate at the Indiana State Prison in Michigan City, Indiana. In accord with the dictates of Townsend v. Sain, 372 U.S. 293, 83 S.Ct. 745, 9 L.Ed.2d 770 (1963), the complete state court record has been filed with, and carefully examined by, this court. Both sides having briefed their respective positions,1 this matter is now ripe for ruling.

Petitioner was convicted in a state court jury trial of escape, for which he received a determinate sentence of four years. His conviction was unanimously affirmed by the Court of Appeals of Indiana in an unpublished opinion which has been examined and considered by this court. Because petitioner is raising the same issues here that he raised in his state court appeal, he has exhausted his available state court remedies. 28 U.S.C. § 2254(b), (c); Anderson v. Harless, 459 U.S. 4, 103 S.Ct. 276, 74 L.Ed.2d 3 (1982). Petitioner has made no request for "appointed" counsel under 28 U.S.C. § 1915(d).

I.

Petitioner argues that the state trial court erred when, during a hearing on petitioner's motion for change of venue, the court granted a television station's motion to quash petitioner's subpoena and denied petitioner's motion for continuance when another television station allegedly failed to comply with petitioner's subpoena. As a result of this, petitioner claims that he was unable to show that he could not receive a fair trial due to pretrial media publicity and that his Fifth Amendment right to due process was thereby violated.

Granting or denying a change of venue motion is within the trial court's discretion. United States v. Lamb, 575 F.2d 1310, 1315 (10th Cir.), cert. denied sub nom. Clary v. United States, 439 U.S. 854, 99 S.Ct. 165, 58 L.Ed.2d 160 (1978).

In a well reasoned decision, the United States Court of Appeals for the Seventh Circuit discussed a defendant's Fifth Amendment rights in conjunction with a motion for change of venue:

Appellants' initial contentions concern adverse pretrial publicity which they claim prejudiced the jury. Due process, of course, requires that an accused be tried by an impartial jury free from outside influences. Maxwell v. Sheppard, 384 U.S. 333, 362, 86 S.Ct. 1507, 1522, 16 L.Ed.2d 600 (1966). Impartiality, however, does not mean complete juror ignorance of issues and events. Irvin v. Dowd, 366 U.S. 717, 722, 81 S.Ct. 1639, 1642, 6 L.Ed.2d 751 (1961). If a juror can put aside his impressions gained from pretrial publicity and render a fair verdict based upon the evidence, the impartiality requirement is satisfied. Dobbert v. Florida, 432 U.S. 282, 302, 97 S.Ct. 2290, 2302, 53 L.Ed.2d 344 (1977); Murphy v. Florida, 421 U.S. 794 (800), 95 S.Ct. 2031, 2036, 44 L.Ed.2d 589 (1975); Irvin v. Dowd, 366 U.S. at 723, 81 S.Ct. at 1642; United States v. Provenzano, 620 F.2d 985, 995 (3rd Cir. 1980), cert. denied, 449 U.S. 899, 101 S.Ct. 267, 66 L.Ed.2d 129 (1980). Where juror exposure to pretrial publicity can be shown, defendants must still demonstrate that actual prejudice resulted. Irvin v. Dowd, 366 U.S. at 723, 81 S.Ct. at 1642; United States v. Thompson, 615 F.2d 329, 333 (5th Cir.1980). (footnotes omitted).

United States v. Garza, 664 F.2d 135, 138 (7th Cir.1981), cert. denied, 455 U.S. 993, 102 S.Ct. 1620, 71 L.Ed.2d 854 (1982).

At the hearing on the motion for change of venue, petitioner presented evidence concerning the news coverage of his case (R. 183-191; 194-197; 202-205; 207-216; 217-222). This evidence, however, did not reveal any great community bias against petitioner. The stories and articles were factual, not sensationalized. Moreover, with respect to television coverage, there was evidence that the stations in the area used about the same type and amount of coverage for their news stories (R. 189). Thus, it is reasonable to assume that the remaining two stations, which did not present evidence at the hearing, would have added nothing to petitioner's claims not already shown by the station which did present evidence.

Even assuming that the potential jurors had been exposed to pretrial publicity concerning petitioner's case, this is far from sufficient to establish juror prejudice; rather, petitioner must demonstrate that the jurors were unable to set aside those notions. Dobbert v. Florida, 432 U.S. 282, 97 S.Ct. 2290, 53 L.Ed.2d 344 (1977).

It is true that during the jury voir dire some of the prospective jurors had indicated that they had heard of the case from the news media. However, these jurors stated that they would be able to put aside this information and decide the case solely upon the evidence presented at trial (R. 239, et seq.) The jurors ultimately selected to hear the case, when questioned regarding any media information they may have heard concerning the case, specifically stated either that they had no knowledge of the case or that they would be able to set aside such information and try the case solely on the evidence presented at trial (R. 257-258; 267; 271-273; 303; 325; 327; 358; 397-398; 400; 402-403).

Under Indiana law, the granting of a motion for change of venue in a criminal case (except those punishable by death) is discretionary with the trial court and will not be reversed unless there is a clear showing of abuse of discretion. Dorton v. State, Ind., 419 N.E.2d 1289, 1294 (1981).

The facts of the present case evidence that the trial court did not err in denying petitioner's motion for change of venue.

II.

Petitioner argues that his due process rights were violated for the reason that the prosecutor at trial was a potential witness. Petitioner supports this allegation by contending that the prosecutor was the first individual to discover a pair of sandals located outside the window where the escape occurred. The petitioner was well aware of this fact prior to trial, or at least prior to the close of all the evidence (R. 469-470), yet raised no objection until he requested a mistrial at the conclusion of the evidence.

The Supreme Court of Indiana has held that it is the better practice for a prosecutor to recuse himself if he becomes a witness. State ex rel. Goldsmith v. Superior Court of Hancock County, 270 Ind. 487, 386 N.E.2d 942 (1979). However, the Supreme Court of Indiana has additionally stated that if the testimony of a prosecutor is not directed to a material issue, then it is permissible for the prosecutor to become a witness. Cherry v. State, Ind., 414 N.E.2d 301, cert. dismissed, 453 U.S. 946, 102 S.Ct. 17, 69 L.Ed.2d 1033 (1981). In the present case the prosecutor was never a witness, nor did he ever intend to be a witness.

The Seventh Circuit in United States v. Johnston, 690 F.2d 638 (7th Cir.1982) (en banc) reviewed the legal ramifications resulting from a situation wherein the prosecutor will be a witness:

The Code's Disciplinary Rules have codified this ethical consideration. The rules prohibit an attorney from accepting employment in contemplated or pending litigation when it is obvious that he will be called as a witness. If the need for his testimony becomes apparent after the attorney has undertaken employment in the case, he must withdraw from the conduct of the trial. These requirements do not apply, however, in exceptional circumstances enumerated in the Disciplinary Rules: where the testimony will relate solely to an uncontested or formal matter and there is no reason to believe that substantial evidence will be offered in opposition to the testimony, and where refusal to testify would work a "substantial hardship" on the client. These ethical rules apply to all lawyers, including government prosecutors, although application of the rule varies depending on the circumstances in individual cases. (footnotes omitted).

Id. at 642.

The Seventh Circuit has further held that when prosecutorial misconduct is alleged the misconduct must be truly outrageous before due process will prevent conviction of a defendant. United States v. Kaminski, 703 F.2d 1004 (7th Cir.1983). Further, a defendant can complain of prosecutorial misconduct only if he can show that he was prejudiced. Hubbard v. United States, 668 F.2d 1238 (D.C.1981), cert. denied, 456 U.S. 926, 102 S.Ct. 1971, 72 L.Ed.2d 440 (1982).

This court has recently dealt with the issue of prosecutorial misconduct in the context of a Section 2254 habeas proceeding. See Rose v. Duckworth, 578 F.Supp. 1387 (N.D.Ind.1984); Osborne v. Duckworth, 567 F.Supp. 427 (N.D.Ind.1983); and Morrison v. Duckworth, 550 F.Supp. 533 (N.D.Ind.1982). For the most recent Supreme Court case, one from this circuit, see U.S. v. Hasting, 461 U.S. 499, 103 S.Ct. 1974, 76 L.Ed.2d 96 (1983).

None of these cited cases are authority for granting this writ on the basis of alleged prosecutorial misconduct.

In this case the prosecutor never testified. The prosecutor's observation of a pair of sandals was not material to establish that defendant committed the crime of escape. Petitioner has shown no prejudice resulting from the prosecutor trying his case.

III.

Petitioner next alleges that the prosecutor suborned testimony of a county sheriff to the effect that the petitioner was in the sheriff's continuous custody during a period of time when in fact both the prosecutor and sheriff knew that he was not. At the trial petitioner raised no objection to the testimony, nor did he cross-examine the sheriff.

In reliance upon this challenge, petitioner argues that the sheriff's jail log, which was never introduced as...

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1 cases
  • Dudley v. Duckworth
    • United States
    • U.S. District Court — Northern District of Indiana
    • July 10, 1988
    ...of the United States. That is certainly the teaching of Harrell v. Israel, 672 F.2d 632 (7th Cir.1982). See also Dillbeck v. Duckworth, 585 F.Supp. 1074 (N.D.Ind.1984). In this case the Supreme Court of Indiana found a security need involved and the defendants asked that the practice of bri......

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