Hunter v. Duckworth

• Decision Date: 29 June 1989
• Docket Number: Civ. No. S 88-637.
• Citation: 741 F. Supp. 1338
• Parties: Steve L. HUNTER, Petitioner, v. Jack R. DUCKWORTH; and Indiana Attorney General, Respondents.
• Court: U.S. District Court — Northern District of Indiana

741 F. Supp. 1338

Steve L. HUNTER, Petitioner, v. Jack R. DUCKWORTH; and Indiana Attorney General, Respondents.

Civ. No. S 88-637.

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

June 29, 1989.

Monica Foster, Indianapolis, Ind., for petitioner.

Kirk A. Knoll, Deputy Atty. Gen., Indianapolis, Ind., for respondents.

MEMORANDUM AND ORDER

ALLEN SHARP, Chief Judge.

On October 26, 1988, the petitioner, Steve L. Hunter, by counsel, filed a petition seeking habeas corpus relief under 28 U.S.C. § 2254. The return was filed by the respondents on February 21, 1989, and, at the same time, the entire state court record was filed in accordance with the mandates of Townsend v. Sain, 372 U.S. 293, 83 S.Ct. 745, 9 L.Ed.2d 770 (1963).

I. Background

The petitioner was convicted by a jury of five counts of robbery and one count of confinement in the Marion Superior Court, Criminal Division, in Indianapolis, Indiana. The state trial court sentenced the petitioner to twenty years for each count, all sentences to run consecutively. The convictions were unanimously affirmed by the Supreme Court of Indiana in Hunter v. State, 492 N.E.2d 1067 (Ind.1986), in an opinion authored by Justice Pivarnik.

At his trial, the state's evidence showed that on January 24, 1984, the petitioner and two cohorts, Charles Hatcher and Linnell Beard, robbed a bank, took the assistant manager hostage, and stole at least two vehicles while fleeing the bank. Id. at 1068.

In his habeas petition, the petitioner raises a single issue which has been fully exhausted. He argues that his Fifth Amendment rights were violated when the state trial court refused to give his tendered "failure to testify" instruction.

II. Discussion

A. Waiver

At the outset, the respondents contend that this court is without jurisdiction to address the merits of the petitioner's constitutional claim. First, they argue that the Supreme Court of Indiana found that the petitioner waived the constitutional claim at trial. Consequently, the judgment of the Supreme Court of Indiana rests on an adequate and independent state procedural ground and therefore should not be reviewed by this court. Secondly, they maintain that the petitioner did not specify the grounds for his objection at trial and therefore waived the error.

In finding that the petitioner waived his constitutional claim at trial, the Supreme Court of Indiana reasoned:

Appellant Hunter was tried together with his co-defendant, Charles Hatcher. Although Hatcher moved to sever their trials, Hunter did not, and, in fact, declined an offer by the court to do so.

Hunter requested the giving of his Tendered Instruction No. 1, which was an instruction to the jury that no adverse inference be drawn by his election not to testify. Hatcher objected to the giving of such an instruction. The trial court then asked Hunter if he wanted severance of his jury trial but he responded through his counsel: "We're just requesting that instruction to be given. And we would like our objection noted as not being given at this point." The trial court did not give a "no adverse inference" instruction to the jury. Hunter now claims the trial court erred by failing to give the instruction upon his request.

The United States Supreme Court in Lakeside v. Oregon (1978), 435 U.S. 333, 340-341, 98 S.Ct. 1091, 1095, 55 L.Ed.2d 319, 326, held that the giving of such a cautionary instruction over a defendant's objection does not violate the United States Constitution's Fifth and Fourteenth Amendment privilege against compulsory self-incrimination. It further held that each State is free to forbid its trial judges from doing so as a matter of state law, but remarked it would be wise for a judge not to give such a remark over objection. This Court has held that any defendant is entitled to make the determination for himself whether or not the instruction should be given, and therefore, the objection to the giving of a no adverse inference instruction must preclude its being given. See Gross v. State (1974), 261 Ind. 489, 306 N.E.2d 371. We have also held that if a request is made for the giving of this instruction, the trial court should give it and failure to do so will result in reversal unless the State shows that the error was harmless beyond a reasonable doubt. Parker v. State (1981), Ind., 425 N.E.2d 628, 630; Priest v. State (1979), 270 Ind. 449, 454, 386 N.E.2d 686, 689 (Givan, C.J., and Pivarnik, J., concurring in result); Hill v. State (1978), 267 Ind. 480, 371 N.E.2d 1303 (Givan, C.J., and Pivarnik, J., dissenting); Gross, 261 Ind. at 491, 306 N.E.2d at 372.

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, 492 N.E.2d at 1068-69 (emphasis in original).

The court is mindful of principles of federalism and comity. It is fundamental that the court cannot grant the petitioner habeas corpus relief on a federal claim if the judgment of the Supreme Court of Indiana is based on an adequate and independent state procedural ground. Wainwright v. Sykes, 433 U.S. 72, 86-87, 97 S.Ct. 2497, 2506-07, 53 L.Ed.2d 594 (1977). This rule, however, is subject to exceptions.

In order for a state court judgment to rest on an adequate and independent state procedural ground, the procedure must be firmly established and regularly followed. Johnson v. Mississippi, 486 U.S. 578, 108 S.Ct. 1981, 1987, 100 L.Ed.2d 575 (1988); accord James v. Kentucky, 466 U.S. 341, 348, 104 S.Ct. 1830, 1835, 80 L.Ed.2d 346 (1984). It appears that the procedural rule relied upon by the Supreme Court of Indiana to default the petitioner's constitutional claim was created in his case. This 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. In fact, in Lucas v. State, 499 N.E.2d 1090 (Ind.1986), the Supreme Court of Indiana addressed this same issue and did not mention such a procedural requirement. In Lucas, the Supreme Court of Indiana affirmed the giving of a requested "failure to testify" instruction over the objections of a co-defendant. Id. at 1093. The state court reasoned:

Larry's Fifth Amendment right to an instruction warning the jury not to draw any adverse inferences from his silence must prevail over the right that this Court has granted under the Indiana Constitution to decide whether it suits him to have such an instruction given or not. Thus, the trial court correctly overruled Paul's objection to Larry's tendered instruction.

Id.

The court concludes that the procedural bar relied upon by the Supreme Court of Indiana in this case has not been consistently or regularly applied. It appears, instead, that the state court has created a new procedural default rule. See Wright v. Georgia, 373 U.S. 284, 291, 83 S.Ct. 1240, 1245, 10 L.Ed.2d 349 (1963). Consequently, under federal habeas law, the procedural bar is not an adequate and independent state ground for affirming the petitioner's conviction.

The respondents also contend that the petitioner did not specify the grounds for his objection to the state trial court's refusal to give the "failure to testify" instruction. This waiver theory is fraught with problems. First, the respondents rely on a federal contemporaneous objection rule. Although Indiana courts may follow the principles embodied in the federal rule, the respondents have failed to cite an Indiana court rule or statute following such principles. Secondly, it is reasonably clear from the record the basis of the petitioner's objection to the state trial court's refusal to give the "failure to testify" instruction. But most importantly, "the mere existence of a basis for a state procedural bar does not deprive this Court of jurisdiction; the state court must actually have relied on the procedural bar as an independent basis for its disposition of the case." Caldwell v. Mississippi, 472 U.S. 320, 327, 105 S.Ct. 2633, 2638, 86 L.Ed.2d 231 (1985) (citing Ulster County Court v. Allen, 442 U.S. 140, 152-54, 99 S.Ct. 2213, 2222-23, 60 L.Ed.2d 777 (1979)). See also Harris v. Reed, 489 U.S. 255, 109 S.Ct. 1038, 1043, 103 L.Ed.2d 308 (1989). The Supreme Court of Indiana in this case did not rely upon a procedural bar premised upon the petitioner's failure to specify the grounds for his objection. Consequently, even assuming the petitioner did not adequately specify the grounds for his objection, this procedural bar does not preclude this court from entertaining the merits of his constitutional claim.

B. Fifth Amendment

The Supreme Court of the United States in Carter v. Kentucky, 450 U.S. 288, 305, 101 S.Ct. 1112, 1121, 67 L.Ed.2d 241 (1981), held that a defendant has a constitutional right to request a "failure to testify" instruction under the Fifth Amendment of the Constitution of the United States as made applicable to the states by the Fourteenth Amendment. At his trial, the petitioner did not testify in his own defense. He requested that the jury be preliminarily instructed not to draw any adverse inferences from his decision not to testify. Tr. Rec. at 164. The petitioner's co-defendant, Charles Hatcher, objected to this instruction. The state trial court then offered to sever the trial in order to accommodate the opposing requests of the petitioner and Hatcher.¹ The petitioner declined the state trial court's offer to sever the trial. The state trial court then took the issue regarding the giving of the instruction under advisement. The state trial court eventually decided not to give the "failure to testify" instruction in the...