Jacks v. Duckworth, 87-1327

• Decision Date: 02 November 1988
• Docket Number: No. 87-1327,87-1327
• Citation: 857 F.2d 394
• Parties: Edward Dennis JACKS, Jr., Petitioner-Appellant, v. Jack DUCKWORTH, Superintendent, Indiana State Prison, and Indiana Attorney General, Respondents-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 394

857 F.2d 394

Edward Dennis JACKS, Jr., Petitioner-Appellant, v. Jack DUCKWORTH, Superintendent, Indiana State Prison, and Indiana Attorney General, Respondents-Appellees.

No. 87-1327.

United States Court of Appeals Seventh Circuit.

Argued Oct. 1, 1987.

Decided Sept. 13, 1988.

Rehearing and Rehearing In Banc Denied Nov. 2, 1988.

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

David L. Steiner, Deputy Atty. Gen., Indianapolis, Ind., for respondents-appellees.

Before CUDAHY and MANION, Circuit Judges, and WILL, Senior District Judge. ^*

MANION, Circuit Judge.

Jacks appeals the district court's decision to deny his third petition for a writ of habeas corpus. We affirm.

I.

Edward Jacks, an Indiana arms dealer, returned from a business trip to Georgia upset that negotiations for a deal with a foreign government had fallen through. Upon returning, his wife informed him that she had filed for divorce and that she and the couple's two children had moved from the couple's house into an apartment. His wife subsequently returned to the house with the children to collect some clothing and belongings. Jacks greeted her at the front door with an assault rifle. She turned, trying to gather up the children as she fled. Jacks shot and killed her.

Jacks was charged with first degree murder and tried before a jury in the Superior Court of Elkhart County, Indiana. Jacks claimed that he was insane at the time of the shooting. The jury convicted Jacks of first degree murder and the trial court sentenced him to life in prison. He is currently incarcerated in Indiana.

Since being sentenced to life in prison, Jacks has launched several attempts to overturn his conviction. These attempts have included a direct appeal to the Indiana Supreme Court, three petitions for a writ of habeas corpus filed in the United States District Court for the Northern District of Indiana, an appeal filed in this circuit, an application for the issuance of a certificate of probable cause filed in this circuit, and a petition for a writ of certiorari filed in the United States Supreme Court. This continuing effort notwithstanding, Jacks remains incarcerated and he now appeals from the denial of his third petition for a writ of habeas corpus.

Jacks' numerous petitions and appeals have raised several constitutional grounds for overturning his conviction. Two of these grounds are relevant to the present appeal. The first ground concerns the admission of Jacks' post-Miranda warning request for an attorney as evidence of sanity. This request was part of a tape-recorded conversation between Jacks and Detective Sergeant Miller of the Elkhart County Sheriff's Department. At the beginning of the conversation, Sergeant Miller informed Jacks of his Miranda rights. Sergeant Miller and Jacks then engaged in a conversation concerning, among other things, Jacks' arms business. After talking about Jacks' business, the following colloquy took place:

[Sergeant] Miller: Do you know what has happened? Tonight?

Mr. Jacks: I'm not exactly sure what happened.

[Sergeant] Miller: You're not exactly sure. Have you been drinking?

Mr. Jacks: As regards whatever happened this evening, I want to talk to my attorney.

[Sergeant] Miller: Okay.

Miller and Jacks then continued their conversation but did not talk about the shooting.

At Jacks' criminal trial, the court allowed the state to introduce the initial portion of the taped conversation up to and including Jacks' statement that he wanted to talk to an attorney. The State introduced this portion of the taped conversation as evidence of Jacks' sanity at the time of the shooting, and in his closing argument, the prosecutor mentioned all the statements made by Jacks in this portion of the conversation, including Jacks' request for counsel. The trial court did not allow the remaining portion of the conversation to be admitted into evidence. See Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981) (holding that police must cease questioning of arrested person after person invokes right to counsel). A transcript of the entire conversation is set forth in Appendices A and B to the majority opinion in Jacks v. Duckworth, 651 F.2d 480, 488-90 (7th Cir.1981), cert. denied, 454 U.S. 1147, 102 S.Ct. 1010, 71 L.Ed.2d 300 (1982). (For ease of reference, we refer to the opinion in Jacks' first appeal as Jacks I.) Jacks claimed that the admission of the initial portion of the taped conversation into evidence, and the prosecutor's comment on the evidence, unconstitutionally penalized the exercise of his rights to remain silent and to counsel.

Jacks' second ground of constitutional error involves the trial court's instructions to the jury. Jacks' challenge to the instructions focused on State's Instruction No. 5, which stated:

You are instructed that where a specific intent is required to make an act an offense, such as in the charge preferred against the Defendant, it is not always possible to prove a purpose by direct evidence, for purpose and intent are subjective facts. That is, they exist within the mind of man, and since you cannot delve into a person's mind and determine his purpose and intent, you may look to all the surrounding circumstances, including what was said and done in relation thereto; bearing in mind the presumption of law, that everyone is presumed to intend the natural and probable consequences of his voluntary acts, unless the circumstances are such as to indicate the absence of such intent.

When an unlawful act, however, is proved to be knowingly done, no further proof is needed on the part of the state in the absence of justifying or excusing facts, since the law presumes a criminal intent from an unlawful act knowingly done.

Jacks I, 651 F.2d at 491. At the time of Jacks' trial, the burden was on the State to prove Jacks' sanity beyond a reasonable doubt. See Riggs v. State, 264 Ind. 263, 265, 342 N.E.2d 838, 841 (1976). Jacks claimed that the instruction's language that "everyone is presumed to intend the natural and probable consequences of his voluntary acts" and that the "law presumes a criminal intent from an unlawful act knowingly done" violated his due process rights by creating a mandatory presumption of intent that shifted the burden of persuasion on an essential element of the crime from the State to Jacks.

Jacks unsuccessfully raised both these grounds of error on direct appeal to the Indiana Supreme Court, Jacks v. State, 271 Ind. 611, 394 N.E.2d 166 (1979), and on his first petition for a writ of habeas corpus, Jacks v. Duckworth, 486 F.Supp. 1366 (N.D.Ind.1980). Jacks then appealed to this circuit.

On appeal, Jacks claimed that the introduction into evidence of his post-Miranda warning request to remain silent about the crime until contacting a lawyer and the prosecutor's comment on that evidence violated the rule set forth in Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976) (holding that the use of post-Miranda warning silence as impeachment evidence against defendant violates due process), and United States v. Hale, 422 U.S. 171, 95 S.Ct. 2133, 45 L.Ed.2d 99 (1975) (holding that prosecutor may not elicit evidence concerning defendant's post-Miranda warning silence). The court rejected this argument, concluding that neither Doyle nor Hale was applicable because Jacks had not, in fact, remained silent. The court indicated that Jacks' statement mentioning counsel should nonetheless have been kept out of evidence, but that the admission of that statement did not warrant overturning Jacks' conviction. In pertinent part the court reasoned:

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.

651 F.2d at 483.

Jacks also claimed on his first appeal to this circuit that the trial court's jury instructions violated his due process rights by creating a mandatory presumption against him that shifted the burden of persuasion on the issue of intent from the State to Jacks. See Sandstrom v. Montana, 442 U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39 (1979) (due process requires the State to prove every essential element of a crime beyond a reasonable doubt). The court disagreed. While recognizing that the instruction caused needless problems and should not be given in future cases, the court determined that the qualifying phrases in the instruction cured any problem with the "presumption" language. According to the court, the instruction did not contain a mandatory injunction to presume intent because "the jurors were told they could 'look to all the surrounding circumstances, including what was said and done in relation thereto' and that any presumption of 'a criminal intent from an unlawful act knowingly done' " existed only in the absence of "justifying or excusing facts." Jacks I, 651 F.2d at 485. The court also reasoned that the "qualifying phrase 'unless the circumstances are such as to indicate the absence of ... intent' ... nullified the mandatory flavor of the language condemned in Sandstrom...." Id. at 485-86. Moreover, after exhaustively analyzing all the jury instructions read to the jury, the court held that when read in their entirety the instructions made plain that the State had the burden of persuasion on every essential element of the crime charged. Id. at 486-87. In any event, the court concluded, any error caused by the instructions was harmless.

After this court affirmed the...