Jacks v. Duckworth

• Decision Date: 11 April 1980
• Docket Number: No. S 79-308.,S 79-308.
• Citation: 486 F. Supp. 1366
• Parties: Edward Dennis JACKS, Jr., Petitioner, v. Jack DUCKWORTH, Warden, Respondent.
• Court: U.S. District Court — Northern District of Indiana

486 F. Supp. 1366

Edward Dennis JACKS, Jr., Petitioner, v. Jack DUCKWORTH, Warden, Respondent.

No. S 79-308.

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

April 11, 1980.

COPYRIGHT MATERIAL OMITTED

Niles Stanton, Indianapolis, Ind., for petitioner.

Theodore L. Sendak, Atty. Gen., David L. Steiner, Deputy Atty. Gen., Indianapolis, Ind., for respondent.

MEMORANDUM AND ORDER

ALLEN SHARP, District Judge.

This Court now considers the petitioner's motion filed pursuant to 28 U.S.C. § 2254 requesting a writ of habeas corpus to issue. Petitioner, Edward Dennis Jacks, Jr., is a state prisoner who is presently incarcerated at the Indiana State Prison for his conviction for First Degree Murder. Petitioner was found guilty after a jury trial in November, 1976, and he received a sentence of life imprisonment. Petitioner took a direct appeal to the Supreme Court of Indiana raising several matters, including essentially the same issues presented in this petition. The Supreme Court of Indiana decided all issues adversely to petitioner and entered its findings and determination in its opinion cited in Jacks v. State, Ind., 394 N.E.2d 166 (1979). This Court has made a careful review of the state court record in this criminal case as mandated by Townsend v. Sain, 372 U.S. 293, 83 S.Ct. 745, 9 L.Ed.2d 770 (1963). After careful consideration, and for the reasons stated below, this Court finds no merit in petitioner's contentions and therefore denies his application for a writ of habeas corpus.

The petitioner in this cause has set forth five grounds for relief. In addressing the alleged grounds for habeas corpus relief, it should be observed that the record of the state court proceedings contains sufficient facts upon which the Indiana courts could properly resolve the matters under consideration. Indeed, the state record demonstrates that the petitioner was given a full, fair, and adequate opportunity to bring out all pertinent information and evidence at the trial level. Therefore, any relevant factual determinations of the Supreme Court of Indiana with respect to the present issues are entitled to deference by the Court and should be accepted in this proceeding. See 28 U.S.C. § 2254(d); Swain v. Pressley, 430 U.S. 372, 97 S.Ct. 1224, 51 L.Ed.2d 411 (1977); United States ex rel. Clark v. Fike, 538 F.2d 750 (7th Cir. 1976); Tanner v. Vincent, 541 F.2d 932 (2d Cir. 1976), cert. den., 429 U.S. 1065, 97 S.Ct. 794, 50 L.Ed.2d 782; United States ex rel. McNair v. State of New Jersey, 492 F.2d 1307 (3d Cir. 1974). Petitioner's motion for an evidentiary hearing and oral argument is, therefore, respectfully denied.

I.

Petitioner first contends that it was error for the state to use at trial a tape recording of an intercepted telephone conversation between himself and his mother. Petitioner maintains further that the telephone conversation was obtained in violation of Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. §§ 2510-2520, and therefore its use at his trial was a denial of his rights rendering his conviction constitutionally infirm.

A review of the record shows the state prosecutor did use, for impeachment purposes only, a taped telephone conversation made August 28, 1975, between the petitioner and his mother. The call was placed from the Elkhart County Jail, where petitioner was being held pending formal charges in the murder of his wife, to the residence of his mother in Lake Forest, Illinois. There was no court order for the telephone tap and the state, at trial, readily admitted the evidence was gathered in violation of 18 U.S.C. § 2510 et seq. The state contended then, as it does now, it was only as rebuttal evidence that the tape recorded telephone call was used at trial, and, therefore, exclusion of the evidence is not mandated by the Fourth Amendment.

Petitioner maintains that the taped conversation cannot be used in any way at trial because the telephone line was not legally tapped and Title III of the Omnibus Crime Control Act of 1968 prohibits use at trial of such evidence. Petitioner argues, in the alternative, that even if such evidence could be introduced for the limited purpose of impeachment on rebuttal, the tapes should have been excluded in this case because the state's impeachment was a sham. Petitioner argues the impeachment was mere pretense and subterfuge for introducing on rebuttal what could not have been introduced during the state's case in chief. Finally, petitioner contends the tape should have been excluded from trial, in any event, because a proper foundation was not established by the state for its introduction of the rebuttal evidence.

The threshold issue is whether evidence procured by means of a wiretap may be introduced by the government for impeachment purposes without a prior determination by the trial court that the wiretap was lawful. Although the prohibition against use of evidence gained by an illegal wiretap is broad in scope as one reads Title III of the Omnibus Crime Control Act of 1968, it has been found that the Act does not prevent the use of the evidence for impeachment purposes. United States v. Caron, 474 F.2d 506 (5th Cir. 1973). The court in Caron found that use of tape recordings, although illegally gathered, was permissible at trial for impeachment of the defendant who testified in his own behalf. In Caron, the defendant denied being engaged in any criminal bookmaking activity when questioned on direct examination by his defense counsel. Upon cross-exam, the defendant repeated the denial. It was at this time the government sought to introduce the tape recordings of the telephone conversation previously taped which impeached the defendant's testimony. The Caron court relied on Walder v. United States, 347 U.S. 62, 74 S.Ct. 354, 98 L.Ed. 503 (1954) in finding that the use of the tape recordings, solely for impeachment purposes, was permissable. The Supreme Court of the United States in Walder found that although the government cannot make an affirmative use of evidence unlawfully obtained, the defendant would not be permitted to shield his guilt behind the exclusion of the evidence and perjured testimony. In Walder, the court allowed the use of illegally seized evidence to impeach the defendant's direct examination assertion that he was innocent of any narcotics activities. The Fifth Circuit Court of Appeals applied the Walder rationale to the unique factual setting in Caron which dealt with wiretaps. The Caron court directly addressed the issue of whether the statutory exclusion of any evidence gathered in violation of Title III of the Omnibus Crime Control Act would prevent the use of evidence for impeachment. After an examination of the legislative history of the Act,¹ the Caron court found the exclusionary principle stated in the Act should not be construed as preventing the introduction of evidence to impeach a witness. Caron, supra, p. 509. The court further found the scope of the suppression role of the Act should parallel the present state of search and seizure law and thus, the Act would not be read to exclude the use of illegally gathered evidence for impeachment.²

Petitioner attempts to discredit any reliance on the Caron case distinguishing it upon the facts from his trial. Upon a scrutiny of the testimony from the record in petitioner's case, however, this Court finds the application of the reasoning in Caron to be singularly appropriate. It is obvious that neither the petitioner nor his mother, as witnesses at trial, answered all the questions concerning telephone calls candidly or truthfully. On direct examination by defense counsel, Helen Jacks stated she only spoke with her son on one occasion, August 27, 1975. (R. p. 644, 1. 25-27). On cross-examination, armed with a transcription of the August 28, 1975 telephone conversation, the prosecutor began his impeachment. It was only upon questioning by the prosecutor on cross-examination that Helen Jacks admitted to a telephone conversation on August 28. Likewise, upon direct examination, the petitioner testified he only spoke with his father on August 28, 1975 and no one else. (R. p. 688, 1. 11-17). Once again, it was only upon cross-examination, when confronted with questions concerning the taped telephone conversation, did the petitioner vaguely recall a telephone conversation with his mother.

Finding their answers to be less than truthful, it is settled law that the prosecution could use even unlawfully gathered evidence to impeach the witnesses. Orgeon v. Hass, 420 U.S. 714, 95 S.Ct. 1215, 43 L.Ed.2d 570 (1975); Harris v. New York, 401 U.S. 222, 91 S.Ct. 643, 28 L.Ed.2d 1 (1971); Walder, supra; Caron, supra. The scope of the law in this area is stated definitively in Harris, supra. There the court held that statements gathered in violation of a defendant's rights as outlined in Miranda could be used solely for impeachment purposes at trial. The Harris court held the impeachment process provided a valuable aid to the jury in assessing the credibility of the defendant. Although a defendant is privileged to testify in his own behalf, that privilege cannot be construed to include a right to commit perjury. Harris, 401 U.S. at 226, 91 S.Ct. at 645. When faced with perjured testimony, the state could resort to the use of unlawfully gathered evidence as rebuttal.

This Court is not swayed by petitioner's argument that the impeachment of petitioner and his mother was a sham. Petitioner alleges that because both he and his mother referred only to telephone conversations on August 27, 1975, in their answers on direct examination, then cross-examination on conversations occurring on August 28, 1975, were beyond the scope of direct. Petitioner contends, therefore, that Harris, Caron and Walder are distinguishable because in those cases the testimony sought to be impeached was brought out on direct examination. Petitioner misreads the scope of examination of...