Dudley v. Duckworth

• Decision Date: 07 November 1988
• Docket Number: No. 86-2293,86-2293
• Citation: 854 F.2d 967
• Parties: 26 Fed. R. Evid. Serv. 735 McKinley DUDLEY, Petitioner-Appellant, v. Jack DUCKWORTH, Warden, and Indiana Attorney General, Respondents-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 967

854 F.2d 967

26 Fed. R. Evid. Serv. 735

McKinley DUDLEY, Petitioner-Appellant, v. Jack DUCKWORTH, Warden, and Indiana Attorney General Respondents-Appellees.

No. 86-2293.

United States Court of Appeals Seventh Circuit.

Argued Feb. 17, 1988.

Decided Aug. 8, 1988.

Rehearing and Rehearing In Banc Denied Nov. 7, 1988.

Thomas J. McCarthy, Jenner & Block, Chicago, Ill., for petitioner-appellant.

David L. Steiner, Office of Indiana Atty. Gen., Indianapolis, Ind., for respondents-appellees.

Before BAUER, Chief Judge, and WOOD, Jr., and COFFEY, Circuit Judges.

HARLINGTON WOOD, Jr., Circuit Judge.

McKinley Dudley, petitioner-appellant, was convicted by a jury in an Indiana state court of aiding a bank robbery for which codefendants Kennis Butler and Rodney Phillips were convicted in the same trial. ¹ The Indiana Supreme Court affirmed their convictions after reviewing numerous alleged errors. ² Thereafter, Dudley filed this petition for writ of habeas corpus under 28 U.S.C. Sec. 2254. The principal claims Dudley raises in this appeal are that comments by the prosecutor about Dudley's silence violated his rights under the fifth and fourteenth amendments, and further, that the admission of prejudicial and irrelevant evidence violated his fourteenth amendment rights. We need reach only this latter issue.

I. FACTUAL BACKGROUND

The state charged that four people, Kennis Butler, Rodney Phillips, Edward Pointer, and petitioner-appellant McKinley Dudley, along with Cecil Lewis, ³ on May 27, 1982, executed an armed robbery of a state bank.

The evidence showed that Pointer, Butler, and Phillips drove a blue Oldsmobile to the bank. Butler and Phillips, armed with hand guns, entered the bank and escaped with $8,835. Pointer waited outside in the car to facilitate their escape. After a high-speed chase, during which Phillips fired at the pursuing police, all three were captured and the stolen money recovered. ⁴

The state's evidence showed that the participants discussed the robbery several days beforehand in Dudley's presence, and again at Dudley's house the day before the robbery occurred. The evidence also showed the other participants obtained guns from Dudley. Another meeting, attended by all participants, was held at a tavern on the day of the robbery. All defendants agreed to split the proceeds of the bank robbery. The state's evidence further showed that a green Cadillac owned by Dudley was to be used as a switch getaway car, and a blue Oldsmobile belonging to Dudley's girlfriend was to be used by the three defendants initially to go to the bank. When Pointer, Butler, and Phillips left in the Oldsmobile for the bank Dudley and Lewis drove the Cadillac to the prearranged switch point. Dudley decided when he arrived at the switch point that it was not a suitable place so he and Lewis abandoned the project and drove off toward Gary, Indiana. Dudley was arrested after his girlfriend went to the police station to retrieve her misused Oldsmobile.

Dudley testified in his own behalf, denying any participation in the bank robbery, and explained his contacts with the defendants as resulting merely from an agreement he had made with Lewis to fix a friend's car, which just happened to be on the day of the bank robbery.

II. DISCUSSION

Pointer, originally a codefendant who agreed to testify for the state in exchange for a reduced sentence, was called as a state witness against Dudley. The direct examination began by his answering what his name was, where he lived (with his aunt in Gary, Indiana), where his mother lived (in Chicago), and his age (twenty-three).

Immediately after these few preliminary questions, the prosecutor began the inquiry which, with the responses of the witness, constitutes the challenged testimony. Pointer was then asked "how he felt about testifying." "Nervous" was his response. The prosecutor pursued the subject, asking why he was nervous and what had happened to make him nervous. The witness, Pointer, explained that the prosecutor "kind of upset me this morning." He then added that he had received some phone calls the night before which were intended for him and his mother. He did not know who made the phone calls. Then came a leading question: "Are you afraid for your girlfriend and your aunt if you testify?" "Yes," Pointer responded. Upon being asked what he was afraid of, he explained that he was afraid that whoever had made the phone calls might threaten or harm his mother, "or anything." At sidebar counsel objected to that line of questioning and asked that it be stricken, moving for a mistrial on the basis that the state was trying to prejudice the defendants by linking the anonymous threats to them. There was nothing, counsel argued, to show that the defendants had anything to do with the alleged phone call threats. The prosecutor defended the question as an attempt to explain the demeanor of the witness and how the witness felt about testifying. In reply, defense counsel argued that the prejudicial effect outweighed any potential relevance to Pointer's demeanor. The prosecutor then added in justification of the testimony that there had been no showing as to who made the phone calls. Defendant's counsel explained that that was exactly his point, a point which also concerns us.

The trial court denied both the mistrial motion and the motion to strike the testimony. The testimony was allowed to stand. ⁵ The admission of that evidence, petitioner argues, violated his fourteenth amendment protections because the threats admittedly came from an unknown source and were not linked to him or his codefendants except by prejudicial innuendo. That argument for the exclusion of the testimony is the same argument which we understand the state to be using in this court to justify its admission. Both parties cannot be correct. Because the threats were not connected in the evidence to any of the defendants, as the state admits, the state claims that the testimony could not be prejudicial to the defendants. In addition, the state argues that the threat evidence was relevant to Pointer's demeanor on the witness stand. The state further argues that the jury's interest in understanding the reason for Pointer's nervousness was not outweighed by the possible prejudicial effect of threatening telephone call evidence. The Supreme Court of Indiana found that the trial court did not abuse its discretion by admitting the evidence. Dudley v. State, 480 N.E.2d 881, 900 (Ind.1985). The state supreme court adopted the state's explanation that the testimony about the anonymous phone calls was necessary to explain Pointer's "extreme nervousness." The district judge subsequently found that the Constitution was not implicated by this exchange because it was a very small incident in a fairly lengthy proceeding and did not amount to a denial of fundamental fairness.

There is at least some agreement between the parties as to the standard of review for this issue. As the petitioner recognizes, the admissibility of evidence is generally a matter of state law. United States ex rel. DiGiacomo v. Franzen, 680 F.2d 515, 517 (7th Cir.1982); United States ex rel. Clark v. Fike, 538 F.2d 750, 757 (7th Cir.1976), cert. denied, 429 U.S. 1064, 97 S.Ct. 791, 50 L.Ed.2d 781 (1977). A writ of habeas corpus should issue, however, when an erroneous evidentiary ruling "is of such magnitude that the result is a denial of fundamental fairness." United States ex rel. Palmer v. DeRobertis, 738 F.2d 168, 170 (7th Cir.), cert. denied, 469 U.S. 924, 105 S.Ct. 306, 83 L.Ed.2d 241 (1984); see also Love v. Young, 781 F.2d 1307, 1312 (7th Cir.), cert. denied, 476 U.S. 1185, 106 S.Ct. 29 23, 91 L.Ed.2d 551 (1986); Cramer v. Fahner, 683 F.2d 1376, 1385 (7th Cir.), cert. denied, 459 U.S. 1016, 103 S.Ct. 376, 74 L.Ed.2d 509 (1982). In determining whether a writ should issue, the court must determine "whether the probative value of the evidence outweighs the prejudice to the accused." Palmer, 738 F.2d at 171; United States ex rel. Durso v. Pate, 426 F.2d 1083, 1086 (7th Cir.1970), cert. denied, 400 U.S. 995, 91 S.Ct. 469, 27 L.Ed.2d 445 (1971). ⁶

Indiana courts have held that a witness's testimony concerning threats the witness has received when no connection is shown between the defendant and the threats, can amount to an "evidential harpoon." Keyser v. State, 160 Ind.App. 566, 312 N.E.2d 922, 924 (1974); see also Cox v. State, 422 N.E.2d 357, 360-63 (Ind.App.1981). "[S]uch evidence becomes so prejudicial to a defendant that no jury could be expected to apply it solely to the question of the credibility of the witness before it and not to the substantial prejudice of the defendant." Keyser, 160 Ind.App. at 569, 312 N.E.2d at 924. In the Keyser case, the court found the testimony's prejudicial effect on the defendant to be so great that an instruction to the jury to disregard it was not sufficient to expiate its effect. That error, when combined with others, led the court to reverse and remand the case for a new trial.

In Cox, a witness testified that he had received threats regarding his testimony at trial. Although the people who threatened the witness knew he was testifying against Cox, the defendant, there was no evidence that Cox was responsible for or had knowledge of the threats. The trial judge, noting that evidence of threats generally must be connected to the defendant, ruled that this was not necessary where the witness was confined to prison from the date of the alleged offense until the date of trial. 422 N.E.2d at 361. The appellate court found no support for this exception, and ruled that the testimony should have been excluded. Id. at 361-62. "Since threats tend to show guilty knowledge or an admission of guilt on the part of the defendant, a proper foundation must be laid showing the threats were made either by the defendant or with his or her knowledge or authorization." Id. "Barring such a showing, the highly prejudicial...