Hunter v. Clark, No. 89-2594

CourtUnited States Courts of Appeals. United States Court of Appeals (7th Circuit)
Writing for the CourtBefore COFFEY, FLAUM and MANION; COFFEY; FLAUM
Citation906 F.2d 302
PartiesSteve L. HUNTER, Petitioner-Appellee, v. Richard CLARK and Indiana Attorney General, Respondents-Appellants.
Decision Date17 September 1990
Docket NumberNo. 89-2594

Page 302

906 F.2d 302
Steve L. HUNTER, Petitioner-Appellee,
v.
Richard CLARK and Indiana Attorney General, Respondents-Appellants.
No. 89-2594.
United States Court of Appeals,
Seventh Circuit.
Argued Jan. 9, 1990.
Decided July 3, 1990.
Order on Grant of Rehearing
Sept. 17, 1990.

Page 303

Robert W. Hammerle, Allen, Baratz, Conway & Hammerle, Indianapolis, Ind., for petitioner-appellee.

Kirk A. Knoll and Ronald J. Semler, Deputy Attys. Gen., Office of the Atty. Gen., Indianapolis, Ind., for respondents-appellants.

Before COFFEY, FLAUM and MANION, Circuit Judges.

COFFEY, Circuit Judge.

Richard Clark, Superintendent of the Indiana State Prison, and the Indiana Attorney General appeal the district court's grant of Steve L. Hunter's petition for writ of habeas corpus. The district court granted the petition for habeas corpus on the ground that the Indiana state trial court's refusal to provide Hunter with his requested instruction that the jury make no adverse inference from Hunter's failure to testify violated Hunter's privilege against self-incrimination under the fifth and fourteenth amendments of the United States Constitution. We reverse.

I.

At approximately 11 a.m. on January 24, 1984, Steve L. Hunter entered the Indiana National Bank branch located at 62nd Street and Michigan Road in Indianapolis, Indiana. At this time Hunter was unmasked and inquired of bank teller Phyllis Jones concerning the possibility of opening a savings account. Mrs. Jones invited Hunter to take a seat, but instead, he walked directly into the bank manager's office, pointed a silver handgun at the manager and informed him that a robbery was occurring. Hunter then pulled a ski mask over his face. Phyllis Jones, a bank teller, had an opportunity to observe Hunter's face before he donned the mask and was thus able to identify Hunter at trial as the man who wielded the silver handgun. Shortly thereafter, Hunter's two accomplices, armed with shotguns, burst into the bank and ordered all present to touch neither buttons nor alarms. Hunter ordered the bank manager, Dewey Cain, to enter the tellers' stations and remove money

Page 304

from the tellers' drawers. Mr. Cain removed approximately $14,000 from three tellers' drawers and placed it in a pillowcase provided by Hunter. Included in the loot was a dye pack and "bait money" from Phyllis Jones' drawer. When the "bait money" was removed from the teller's drawer, it set off an alarm and activated the bank's cameras. In addition, when the "bait money" left the bank, a dye pack with a triggering device hidden in the bait money was automatically activated by a radio and exploded as the dye pack left the bank premises. Red dye was sprayed over the cash the robbers had stolen.

When Hunter and his two accomplices left the bank, they took car keys from one of the bank's customers. They forced the bank's assistant manager at gunpoint to give up his car keys and to precede them out the door. The men stole a van parked in the bank's parking lot with its engine running and left the crime scene. Later, the robbers abandoned the van and attempted to steal another vehicle, but failed when that car got stuck in a ditch. Shortly thereafter, they were successful in stealing a different car after forcing the owner from his car with a "nickel-plated" pistol.

Later that day, Hunter, along with his co-defendant Charles Hatcher, and a third man named Lynell Beard, went to the home of a friend, Howard Smith. Hatcher had earlier borrowed a chrome pistol and a shotgun from Smith in exchange for a portion of the money to be taken in the robbery. At this time Hunter, Hatcher and Beard dumped the loot, stained with red dye, on the table in Smith's house and proceeded to count the money. While counting the money, the men heard and observed a TV news account of the robbery that included a statement by a witness who recounted that he had been beaten, robbed and forced from his car. At this time Hunter stated to Beard, Hatcher and Smith that the witness interviewed on the news had not been touched and was lying about the details of that day's events and admitted further that he had pulled a pistol on the bank manager. Each of the three men gave Smith $100 ($300 total), all of which was stained with red dye. Smith and another accomplice, Hunter's cousin, Anthony Thompson, attempted to remove red dye stains from the money but were unsuccessful. At trial Thompson also testified that Hunter had telephoned him on the morning of the robbery and asked him whether he wished to "make some money," but Hunter refused because of concerns over his probation status from a previous robbery conviction.

On the following day, January 25, 1984, Marion County Sheriff Sergeant Ron Beasley arrested Smith in his automobile. Smith had money stained with red dye in his possession. During questioning, Smith revealed his home address to Sergeant Beasley. After Smith was transported to the Marion County Sheriff's Department, Sergeant Beasley proceeded directly to Smith's home where he met Felicia Wilson, the lessee of the apartment. Beasley advised her that the police "believed that there was evidence from this bank robbery that could be obtained in a search of her apartment," and asked for permission to conduct a search of the premises. Wilson signed a waiver permitting the search. In the course of the search of the apartment, police came upon a semi-automatic rifle, a sawed-off shotgun, a silver revolver and a used bar of soap stained with red dye.

Hunter was subsequently charged with five counts of robbery and one count of confinement 1 and was tried jointly with a co-defendant, Charles Hatcher, in an Indiana state court. During the trial Hunter did not take the stand in his own defense. At the close of the evidence, Hunter requested that the jury be instructed that they were not to make any adverse inferences from Hunter's failure to testify. However, co-defendant Hatcher requested that this instruction not be given. The state court judge at trial, confronted with

Page 305

this dilemma, offered to sever the defendants', Hunter and Hatcher's, trials in order that he might accommodate their respective requests for conflicting jury instructions. The trial judge, upon being forced to make a choice between the requests of the individual co-defendants, elected not to give the jury instruction concerning the drawing of the "no adverse inference" Hunter requested. The jury convicted Hunter of five counts of robbery and one count of confinement. Hunter was sentenced to six consecutive 20-year terms of imprisonment for each of the five robbery counts and the confinement count (120 years total).

Hunter appealed his convictions and sentences to the Indiana Supreme Court. In affirming Hunter's convictions, the Indiana Supreme Court rejected Hunter's allegations of error concerning the trial court's refusal to give his "no adverse inference" instruction. After recounting the facts of the case, including the divergent requests of the jointly tried co-defendants regarding the furnishing of a "no adverse inference" instruction, the Indiana court stated:

"By his actions here, Hunter placed the trial court on the horns of a dilemma which made it impossible for it to refrain from committing error. The trial court gave Hunter the opportunity to resolve this dilemma by offering to sever the trials as Hatcher had, in fact, requested, but Hunter declined to accept that alternative. He therefore has waived any error the court might have committed in resolving the matter as he did."

Hunter v. State, 492 N.E.2d 1067, 1069 (Ind.1986).

Two years later, on October 26, 1988, Hunter filed this habeas corpus petition alleging that "his Fifth Amendment rights were violated when the state trial court refused to give his tendered 'failure to testify' instruction." Hunter v. Duckworth, 741 F.Supp. 1338, 1340 (N.D.Ind.1989). The district court granted Hunter's habeas corpus petition, ruling in contravention of the Indiana Supreme Court's decision, and held that there was no waiver of the "failure to testify" or "no adverse inference" instruction issue because "[t]his court cannot find an Indiana court rule or statute which requires a defendant to move for a severance or to accept an offer of severance in order to preserve the 'failure to testify' issue." Id. at 1341. The district court went on to hold that Hunter's federal fifth amendment rights were violated when the state trial court chose to enforce his co-defendant's state constitutional right not to have a "failure to testify" instruction given over Hunter's federal constitutional right to such an instruction.

"When a state constitutional right unavoidably conflicts with a federal constitutional right, the state right must give way to the federal right under the mandates of the Supremacy Clause of the Constitution of the United States. See, e.g., Reynolds v. Sims, 377 U.S. 533, 584 [84 S.Ct. 1362, 1393, 12 L.Ed.2d 506] (1964). Consequently, in this joint state trial, the petitioner's Fifth Amendment right to request a 'failure to testify' instruction should have prevailed over co-defendant Hatcher's state constitutional right not to have the instruction given. See Lucas [v. State, 499 N.E.2d 1090, 1093 (Ind.1986) ] (where the Supreme Court of Indiana held the same). Thus, the petitioner's Fifth Amendment rights were violated when the state trial court refused to give his tendered 'failure to testify' instruction."

Hunter, at 1342. Lastly, the district court held that the state trial court's failure to provide the jury with the "no adverse inference" instruction was not "harmless error" because "the evidence supporting [Hunter's] convictions is not 'overwhelming.' " Id. at 1343. The court believed that the facts that only one witness positively identified Hunter as one of the bank robbers and the state's extensive reliance upon accomplice testimony of accessories after the fact necessitated a...

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5 practice notes
  • Hunter v. Clark, No. 89-2594
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • June 6, 1991
    ...The facts leading to Hunter's conviction are set out in full in the opinion of the panel that initially heard this case, Hunter v. Clark, 906 F.2d 302 (7th Cir.1990), reh'g Page 858 granted, en banc, vacated, Hunter v. Clark, No. 89-2594 (7th Cir. Sept. 17, 1990). In brief, Hunter and two a......
  • USA v. HUNTER, No. 10-2668
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • April 12, 2011
    ...for robbery and one for criminal confinement, all of which arose from a bank robbery and one-day crime spree. See Hunter v. Clark, 906 F.2d 302, 303 (7th Cir. 1990). The district court calculated a guidelines imprisonment range of 262 to 327 months, and sentenced Hunter below that range to ......
  • US ex rel. Cole v. Gramley, No. 90 C 3131.
    • United States
    • United States District Courts. 7th Circuit. United States District Court (Northern District of Illinois)
    • November 7, 1990
    ...of Appeals has often spoken in terms of whether the evidence supporting the conviction was "overwhelming" (Hunter v. Clark, 906 F.2d 302, 309 (7th Cir.1990)), but it has also found constitutional errors harmless "even in the absence of `overwhelming' evidence, focusing instea......
  • Hunter v. United States, No. 1:16-cv-01652-WTL-TAB
    • United States
    • United States District Courts. 7th Circuit. United States District Court (Southern District of Indiana)
    • August 23, 2018
    ...from a bank robbery and a one-day crime spree. United States v. Hunter, 418 Fed. Appx. 490, 492 (7th Cir. 2011) (citing Hunter v. Clark, 906 F.2d 302, 303 (7th Cir. 1990)). The Court "calculated a guidelines imprisonment range of 262 to 327 months, and sentenced Hunter below that range......
  • Request a trial to view additional results
5 cases
  • Hunter v. Clark, No. 89-2594
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • June 6, 1991
    ...The facts leading to Hunter's conviction are set out in full in the opinion of the panel that initially heard this case, Hunter v. Clark, 906 F.2d 302 (7th Cir.1990), reh'g Page 858 granted, en banc, vacated, Hunter v. Clark, No. 89-2594 (7th Cir. Sept. 17, 1990). In brief, Hunter and two a......
  • USA v. HUNTER, No. 10-2668
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • April 12, 2011
    ...for robbery and one for criminal confinement, all of which arose from a bank robbery and one-day crime spree. See Hunter v. Clark, 906 F.2d 302, 303 (7th Cir. 1990). The district court calculated a guidelines imprisonment range of 262 to 327 months, and sentenced Hunter below that range to ......
  • US ex rel. Cole v. Gramley, No. 90 C 3131.
    • United States
    • United States District Courts. 7th Circuit. United States District Court (Northern District of Illinois)
    • November 7, 1990
    ...our Court of Appeals has often spoken in terms of whether the evidence supporting the conviction was "overwhelming" (Hunter v. Clark, 906 F.2d 302, 309 (7th Cir.1990)), but it has also found constitutional errors harmless "even in the absence of `overwhelming' evidence, focusing instead on ......
  • Hunter v. United States, No. 1:16-cv-01652-WTL-TAB
    • United States
    • United States District Courts. 7th Circuit. United States District Court (Southern District of Indiana)
    • August 23, 2018
    ...from a bank robbery and a one-day crime spree. United States v. Hunter, 418 Fed. Appx. 490, 492 (7th Cir. 2011) (citing Hunter v. Clark, 906 F.2d 302, 303 (7th Cir. 1990)). The Court "calculated a guidelines imprisonment range of 262 to 327 months, and sentenced Hunter below that range to 2......
  • Request a trial to view additional results

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