Jacks v. Duckworth

Decision Date14 August 1981
Docket NumberNo. 80-1639,80-1639
Citation651 F.2d 480
PartiesEdward Dennis JACKS, Jr., Petitioner-Appellant, v. Jack R. DUCKWORTH, Warden, Respondent-Appellee.
CourtU.S. Court of Appeals — Seventh Circuit

Julius Echeles, Chicago, Ill., for petitioner-appellant.

David L. Steiner, Deputy Atty. Gen. of Ind., Indianapolis, Ind., for respondent-appellee.

Before SWYGERT and CUMMINGS, Circuit Judges, and BROWN, Senior District Judge. *

CUMMINGS, Circuit Judge.

Petitioner Edward Dennis Jacks, Jr. appeals from a denial of his habeas corpus petition under 28 U.S.C. § 2254. Petitioner was indicted by an Indiana grand jury in September 1975 for the first-degree murder of his wife, Kathleen B. Jacks, on August 28, 1975. The case was tried to a jury in Indiana state court in November 1976. At trial, petitioner contended that he was not criminally responsible by reason of insanity at the time of the homicide. The jury found petitioner guilty as charged, and he was sentenced to life imprisonment. The Indiana Supreme Court affirmed the conviction on direct appeal. Jacks v. State, Ind., 394 N.E.2d 166 (1979). Petitioner then filed the present habeas corpus petition, raising essentially the same issues decided adversely to him in the direct appeal. The district court agreed with the conclusions of the Indiana Supreme Court and dismissed the petition. Our review in a habeas corpus proceeding is limited to constitutional errors that deprive a defendant of fundamental fairness guaranteed by the Fourteenth Amendment. Donnelly v. DeChristoforo, 416 U.S. 637, 642-643, 94 S.Ct. 1868, 1871, 40 L.Ed.2d 431, see Stone v. Powell, 428 U.S. 465, 96 S.Ct. 3037, 49 L.Ed.2d 1067. Finding no such error in petitioner's trial, we affirm.

I

Petitioner's first asserted ground for relief concerns a portion of a tape-recorded conversation between himself and Detective Sergeant Miller which took place at the police station after petitioner's arrest on August 28, 1975. At the outset of the conversation, Sergeant Miller gave petitioner his Miranda warnings. Petitioner did not then invoke either his right to remain silent or his right to have an attorney present, but continued to converse with Sergeant Miller and to answer preliminary questions about his name, age, and occupation. Thereafter the following colloquy took place:

Mr. Miller: Do you know what happened? Tonight?

(Petitioner): I'm not exactly sure what happened.

Mr. Miller: You're not exactly sure. Have you been drinking?

(Petitioner): As regards what happened this evening, I want to talk to my attorney.

Mr. Miller: Okay.

Thereafter petitioner continued to engage in an extended conversation with Sergeant Miller. The trial court admitted into evidence that portion of the conversation, offered for supposed admissions and denials therein, ending with the above-quoted colloquy and excluded everything thereafter.

Petitioner claims that his Fifth Amendment privilege against self-incrimination and his Sixth Amendment right to counsel, as incorporated in the Fourteenth Amendment, were violated when the jury was permitted to hear over his objection the single statement to Sergeant Miller that "As regards what happened this evening, I want to talk to my attorney." The prior conversation with Miller is not challenged. (It is reproduced in Appendix A hereto.) To support this argument, petitioner relies principally on Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91, in which the Supreme Court held, "that the use for impeachment purposes of petitioners' silence, at the time of arrest and after receiving Miranda warnings violated the Due Process Clause of the Fourteenth Amendment." 426 U.S. at 619, 96 S.Ct. at 2245. Petitioner also relies on United States v. Hale, 422 U.S. 171, 95 S.Ct. 2133, 45 L.Ed.2d 99, in which the prosecutor was not permitted "during the trial to call attention to * * * (petitioner's) silence at the time of arrest and to insist that because he did not speak about the facts of the case at that time, as he was told he need not do so, an unfavorable inference might be drawn as to the truth of his trial testimony * * *." 422 U.S. at 182-183, 95 S.Ct. at 2139.

However, neither Doyle nor Hale is applicable here because this case does not involve an attempt by the prosecutor to use petitioner's silence or failure to testify against him or for impeachment purposes. In fact, petitioner did not remain silent at the time of arrest. Rather, he spoke voluntarily and freely with Sergeant Miller after having received his Miranda warnings and even after having uttered the 13 words now in issue, thereby indicating that he was not then invoking his right to remain silent. 1 Out of an abundance of caution and in foreordained harmony with Edwards v. Arizona, --- U.S. ----, 101 S.Ct. 1880, 68 L.Ed.2d 378 decided by the Supreme Court on May 18, 1981, the trial judge granted petitioner's motion to suppress the portion of the tape immediately following the challenged sentence (R. 554-555). (The suppressed statement is reproduced in Appendix B hereto.) But it is only at the very end of the tape, some three pages of transcript after that sentence, that petitioner stated he "desired to have an attorney before talking (further) to the police" (R. 352) and stopped talking. Petitioner himself explained to Sergeant Miller after the challenged sentence that he did not want to call an attorney (R. 351), and Richard H. Sproull, then co-counsel for petitioner, subsequently admitted to the judge that at the time in question petitioner did not want a lawyer (R. 558). Petitioner also testified freely at his trial. Certainly the reading of this one sentence to the jurors after they had been read the considerable forepart of petitioner's conversation with Officer Miller would be lost in all the rest of the evidence rather than cause them to convict. The trial judge left it in merely to mark the termination of the permissible evidence and that which became impermissible, he thought, after defendant first sought counsel. While it might have been better practice to suppress the sentence, certainly it was not so prejudicial a ruling as to constitute reversible error in view of the strong case against petitioner.

Consequently, it is obvious that appellate counsel for petitioner is now presenting a self-serving, unwarranted interpretation of a single sentence whose admission in nowise was a violation of petitioner's constitutional rights in that petitioner was not at that point invoking either his right to remain silent or his right to have counsel present. Indeed his right to counsel under the Sixth and Fourteenth Amendments had not attached because no adversary judicial proceedings had been initiated. Moore v. Illinois, 434 U.S. 220, 226-227, 98 S.Ct. 458, 463-464, 54 L.Ed.2d 424. The district court therefore correctly held that reversible error was not committed when this sentence was permitted into evidence without any misuse by the prosecutor.

II

Petitioner next claims that the trial court committed reversible error by allowing the jury to hear a tape recording of a telephone conversation between petitioner and his mother that also took place on the night of his arrest. The conversation was recorded without a court order and therefore, as the State concedes, could not be used by the State as part of its case in chief. However, the State maintains that the tape was admissible in its rebuttal under Harris v. New York, 401 U.S. 222, 91 S.Ct. 643, 28 L.Ed.2d 1. In Harris, the Supreme Court held that otherwise impermissible evidence could be used by the prosecution on rebuttal, stating that no exclusionary rule may permit affirmative perjury and that "sufficient deterrence (to proscribed police conduct) flows when the evidence in question is made unavailable to the prosecution in its case in chief." 401 U.S. at 225, 91 S.Ct. at 645. While Harris and its progeny 2 involved evidence obtained in violation of the Fourth Amendment, the rationale has been extended, and properly so, to cases involving evidence obtained as here in violation of Title III of the Omnibus Crime Control and Safe Streets Act of 1968 (18 U.S.C. §§ 2510-2520). See United States v. Caron, 474 F.2d 506, 509-510 (5th Cir. 1973).

In sustaining the admissibility of the tape and denying petitioner's motion for a mistrial, the trial judge noted that it dealt with petitioner's and his mother's testimony on direct examination. He admonished the jury that the contents of the tape should be considered only to determine the credibility of petitioner and his mother and on the issue of petitioner's sanity, 3 but not as to whether petitioner had committed the crime charged. In so doing, the judge could properly have relied on United States v. Stewart, 443 F.2d 1129 (10th Cir. 1971). 4 In that case, as here, the sole defense was insanity. In its rebuttal, the Government was permitted to introduce a tape of an undercover police agent's two conversations with the defendant even though the conversations were illegally recorded. The jury was instructed that the evidence was to be considered on the issue of the defendant's competence on the date of the alleged narcotics transactions and on the question of defendant's specific intent. On appeal, the Tenth Circuit upheld the use of the tape, stating that the conversations were "of probative effect and of particular relevance to the question of Stewart's mental capacity." 443 F.2d at 1135. Likewise, in this case, petitioner's conversation with his mother is "of probative effect" with respect to petitioner's mental condition and with respect to the trial testimony of petitioner and his mother as to his sanity. Therefore, the trial court's ruling is supported by Stewart and was not erroneous. In addition, there was no objection to the court's letting the jury consider it as to petitioner's sanity.

Even assuming, however, that...

To continue reading

Request your trial
43 cases
  • U.S. v. Silva, 79-5197
    • United States
    • United States Courts of Appeals. United States Court of Appeals (4th Circuit)
    • 1 Octubre 1984
    ...denied, 460 U.S. 1024, 103 S.Ct. 1276, 75 L.Ed.2d 496 (1983); Rivera v. Coombe, 683 F.2d 697, 700-01 (2d Cir.1982); Jacks v. Duckworth, 651 F.2d 480, 486-87 (7th Cir.1981), cert. denied, 454 U.S. 1147, 102 S.Ct. 1010, 71 L.Ed.2d 300 (1982); United States v. Ming Sen Shiue, 650 F.2d 919, 924......
  • U.S. v. Scott, 80-2114
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • 18 Enero 1982
    ...jury could have understood the instruction as shifting the burden of persuasion to the defendant in any degree. Cf. Jacks v. Duckworth, 651 F.2d 480, 485-487 (7th Cir. 1981). As later pointed out, the verdict of guilty may well have not rested on the net worth method of proof, and if that b......
  • Bowman v. Leverette, 14430
    • United States
    • Supreme Court of West Virginia
    • 19 Marzo 1982
    ...the Chiantese prophylactic rule, we would refuse to apply it retroactively...." 604 F.2d at 969.The Seventh Circuit, in Jacks v. Duckworth, 651 F.2d 480 (7th Cir. 1981), cert. denied, 454 U.S. 1147, 102 S.Ct. 1010, 71 L.Ed.2d 300 (1982), agreed with the Fifth Circuit in saying that the rule......
  • Greider v. Duckworth, 82-1487
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • 11 Marzo 1983
    ...sanity lacked immediacy. The jury could credit the testimony of lay witnesses over that of an expert witness. Jacks v. Duckworth, 651 F.2d 480, 487 (7th Cir.1981), cert. denied, 454 U.S. 1147, 102 S.Ct. 1010, 71 L.Ed.2d 300. Moore v. Duckworth, 581 F.2d 639, 642 (7th Cir.1978), aff'd 443 U.......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT