Fleener v. Duckworth

• Decision Date: 28 March 1983
• Docket Number: No. S81-0286.,S81-0286.
• Parties: Timothy E. FLEENER, Petitioner, v. Jack DUCKWORTH, Warden and Indiana Attorney General, Respondents.
• Court: U.S. District Court — Northern District of Indiana

559 F. Supp. 1322

Timothy E. FLEENER, Petitioner, v. Jack DUCKWORTH, Warden and Indiana Attorney General, Respondents.

No. S81-0286.

United States District Court, N.D. Indiana, South Bend Division.

March 28, 1983.

Timothy E. Fleener, pro se.

Linley E. Pearson, Atty. Gen. of Ind., Indianapolis, Ind., for respondents.

MEMORANDUM and ORDER

SHARP, Chief Judge.

This cause comes before the Court on a petition for writ of habeas corpus under 28 U.S.C. § 2254. Fleener was charged by indictment in two counts for murder and felony murder, Ind.Code § 35-13-4-1(a) (Burns 1975), for the 1977 stabbing of Harold Lewis in Evansville, Indiana. The murder count was dismissed prior to trial. After trial by jury, petitioner was convicted of felony murder. The state trial court imposed a sentence of life imprisonment on the felony murder count. On direct appeal to the Supreme Court of Indiana, a unanimous court affirmed the judgment of the trial court. Fleener v. State of Indiana, Ind., 412 N.E.2d 778 (1980), rehearing denied, (1981).

In his direct appeal to the Supreme Court of Indiana, Fleener raised the following issues:

1. Whether the trial court erred in admitting Fleener's confession.

2. Whether the trial court erred in admitting statements attributable to Fleener without proof of the corpus delicti of the crime of felony murder.

3. Whether the trial court erred in refusing Fleener's tendered instruction on lesser included offenses.

4. Whether the trial court erred in refusing to grant Fleener's motion for a new trial based on newly discovered evidence.

5. Whether the evidence was sufficient to support the verdict.

In his petition for writ of habeas corpus, Fleener raises the following issues:

1. Whether the admission of Fleener's confession was trial court error.

2. Whether the trial court committed prejudicial error in allowing statements attributable to Fleener admitted into evidence.

3. Whether the trial court committed reversible error in refusing to give Fleener's tendered instruction number 11.

4. Whether it was prejudicial error by refusing to grant Fleener a new trial on the basis of newly discovered evidence.

5. Whether the evidence was sufficient to support the verdict.

Petitioner has exhausted his available state court remedies, per Duckworth v. Serrano, 454 U.S. 1, 102 S.Ct. 18, 70 L.Ed.2d 1 (1981) and Rose v. Lundy, 455 U.S. 509, 102 S.Ct. 1198, 71 L.Ed.2d 379 (1982). The complete state court record has been filed and examined by this Court pursuant to Townsend v. Sain, 372 U.S. 293, 83 S.Ct. 745, 9 L.Ed.2d 770 (1963).

It is a well established principle that evidentiary errors of state courts are not considered to be of constitutional proportion, cognizable in federal habeas corpus proceedings, unless the error deprives a defendant of fundamental fairness in his criminal trial. Donnelly v. DeChristoforo, 416 U.S. 637, 642-43, 94 S.Ct. 1868, 1871, 40 L.Ed.2d 431 (1974); United States ex rel. Perry v. Mulligan, 544 F.2d 674, 678 (3rd Cir.1976), cert. denied, 430 U.S. 972, 97 S.Ct. 1659, 52 L.Ed.2d 365 (1977). State court rulings on the admissibility of evidence may not be questioned in federal habeas corpus proceedings unless they render the trial so fundamentally unfair as to constitute a denial of federal constitutional rights. Gillihan v. Rodriguez, 551 F.2d 1182, 1192-93 (10th Cir.), cert. denied, 434 U.S. 845, 98 S.Ct. 148, 54 L.Ed.2d 111 (1977), cited in Brinlee v. Crisp, 608 F.2d 839, 850 (10th Cir.1979), cert. denied, 444 U.S. 1047, 100 S.Ct. 737, 62 L.Ed.2d 733. See also, Davis v. Campbell, 608 F.2d 317, 319 (8th Cir.1979). For a most recent application of these ideas, see Smith v. Phillips, 455 U.S. 209, 221, 102 S.Ct. 940, 948, 71 L.Ed.2d 78 (1982) and U.S. ex rel. Garcia v. Lane, 698 F.2d 900 (7th Cir.1983).

Prior to his state trial, Petitioner filed a Motion to Suppress his confession. The state trial court conducted a hearing and overruled the motion. Examination of the evidence presented at the hearing shows sufficient probative evidence to support the trial court's finding. Petitioner was advised of the subject matter of the discussion by Detective Baggerly, and was told that he could have an attorney. (R. 403). Detective Baggerly read Petitioner his "Miranda rights" and then had Petitioner read the "Miranda rights" form. (R. 401). Petitioner then signed the form to indicate that he understood his rights. (R. 402). On appeal and in his present application, Petitioner points out that he had previously been convicted as an accessory in another robbery trial. He argues that this experience made him aware that to make the statement to Detective Baggerly would implicate him as an accessory in the alleged murder. Therefore, and by his own admission, petitioner knew the consequences of the statements made to Detective Baggerly. His waiver of rights was knowingly and intelligently made.

Petitioner's only remaining contention relating to his Motion to Suppress is that he was induced to make the statement by promises that he would not be prosecuted. At the hearing on the Motion to Suppress, Petitioner testified as follows regarding the alleged inducement made to him by Detective Baggerly:

Q. What did he lead you to believe if you gave a statement?

A. He led me to believe that he could talk maybe to the prosecutor to where there would be no — nothing brought up against me in this case whatsoever.

Q. Is that the basis that you gave the statement that is attributable to you in this Courtroom?

A. It is. (R. 486).

Petitioner's own testimony contains the word "maybe" in reference to Detective Baggerly's talking with the prosecutor. His testimony does not reflect that any assurances were given in return for his implicating Jesse McCormick. Petitioner's allegations of inducement is not supported by the record. Detective Baggerly made no promises of leniency in exchange for the confession. Detective Baggerly testified twice that he told Petitioner that he did not know what would happen until the prosecutor got the case. (R. 422, 477).

On January 26, 1982 this Court ordered this case remanded to the Indiana state trial court for findings of fact regarding the possible application of Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981). On January 7, 1983, the state trial court filed such findings with this Court.

The three page findings proffered by Judge Miller, Special Judge of the Gibson Circuit Court, pursuant to this Court's remand order, show clearly that the petitioner was read his Miranda rights, that petitioner made no indication of any desire to remain silent nor of any desire to have counsel present, and that petitioner freely and voluntarily made a statement to Officer Baggerly that was reduced to writing and signed by the petitioner. Thus, this situation is not identical to that of Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981), wherein the petitioner expressed a desire to remain silent until afforded the benefit of counsel, and then later confessed to police after being questioned a second time outside the presence of counsel. Accord, see United States ex rel. Kimes v. Greer, 527 F.Supp. 307 (N.D.Ill. 1981).

An accused who has once asserted his right to remain silent may later waive that right. United States v. Madison, 689 F.2d 1300 (7th Cir.1982); United States v. Boston, 508 F.2d 1171 (2d Cir.1974), cert. denied, 421 U.S. 1001, 95 S.Ct. 2401, 44 L.Ed.2d 669 (1975). However, where the petitioner has never asserted either his right to remain silent or his right to counsel,¹ Edwards v. Arizona is inapplicable. Shaffer v. Clusen, 518 F.Supp. 963 (E.D. Wisc.1981); see also Jacks v. Duckworth, 651 F.2d 480, 483 (7th Cir.1981), cert. denied, 454 U.S. 1147, 102 S.Ct. 1010, 71 L.Ed.2d 300 (1982) (where petitioner failed to demand presence of counsel until end of taped statement to police, no Edwards v. Arizona problem). Accordingly, petitioner's arguments regarding the inadmissibility of his statement must fail.

The only evidence for Petitioner's inducement argument comes from his own testimony. The State's witnesses adequately refuted Petitioner's allegation that he was compelled to confess by promises that he would not be indicted. Conflicts in evidence are questions for the trier of fact.

A federal habeas corpus court is to determine voluntariness under the "totality of the circumstances" standard. Davis v. North Carolina, 384 U.S. 737, 741-742, 86 S.Ct. 1761, 1764, 16 L.Ed.2d 895 (1966). The question to be asked is whether Petitioner's confession was "the product of an essentially free and unconstrained choice." Schneckloth v. Bustamonte, 412 U.S. 218, 225, 93 S.Ct. 2041, 2046, 36 L.Ed.2d 854 (1973); Culombe v. Connecticut, 367 U.S. 568, 602, 81 S.Ct. 1860, 1879, 6 L.Ed.2d 1037 (1961). As noted above, Petitioner was no stranger either to police stations or to police questioning. Upon a careful review of the entire record and consideration of the totality of the circumstances, it must therefore be concluded that Petitioner's confession was voluntary and its admission into evidence at his state criminal trial did not violate any of Petitioner's constitutional rights to fundamental fairness.

Admission of evidence in a state criminal proceeding does not raise a federal question unless it can be shown that such admission rendered a defendant's trial so fundamentally unfair as to constitute a denial of federal constitutional rights. Donnelly, supra; Mulligan, supra; Gillihan, supra; Brinlee, supra; Davis, supra.

Petitioner argues that the trial court erred when it admitted his confession and other statements attributed to him without independent proof of the corpus delicti, in this case by the underlying felony of robbery. Petitioner's argument to the Supreme Court of Indiana was predicated on Indiana case law that was disapproved by the high court. The law in Indiana concerning this is found in Harrison v. State, 269 Ind. 677, 382 N.E.2d...