Kappos v. Hanks
| Decision Date | 02 May 1995 |
| Docket Number | No. 92-3844,92-3844 |
| Citation | 54 F.3d 365 |
| Parties | James G. KAPPOS, Petitioner-Appellant, v. Craig HANKS, Respondent-Appellee. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Marce Gonzalez, Jr., Merrillville, IN (argued), for petitioner-appellant.
Thomas D. Quigley, Office of the Attorney General, Indianapolis, IN (argued), for respondent-appellee.
Before CUDAHY, FLAUM and EASTERBROOK, Circuit Judges.
James Kappos filed a petition for habeas corpus under 28 U.S.C. Sec. 2254, in which he alleged that his murder conviction was obtained in violation of the Constitution. He raises four issues on appeal: the failure of the trial court to give a cautionary jury instruction, the failure of the prosecution to disclose the terms of a "bounty deal," prosecutorial misconduct and the submission of a jury instruction that, he alleges, improperly relieved the state of its burden of proof. 1
The evidence at trial established that Kappos hired David Hayes to kill his wife, Charlene Kappos, for five hundred dollars. When Hayes changed his mind and attempted to return the money, Kappos threatened to harm Hayes' family. Hayes subsequently killed Charlene Kappos. Kappos v. State, 465 N.E.2d 1092 (Ind.1984).
Hayes pleaded guilty to murder and agreed to testify at Kappos' trial in exchange for Hayes' cooperation; the state promised that it would not seek the death penalty for Hayes and would recommend a sentence of not more than forty years. A jury found Kappos guilty. He unsuccessfully appealed his conviction to the Indiana Court of Appeals and the Indiana Supreme Court. Kappos then filed for post-conviction relief in the state courts. The Indiana trial court denied the petition. Kappos appealed to the Indiana Court of Appeals and the Indiana Supreme Court before filing his petition for habeas corpus in the district court.
Kappos argues that the trial court erred by not giving a cautionary instruction on the testimony of Hayes, Kappos' accomplice. Kappos did not request such an instruction, and the court instructed the jury to make its own credibility determination with respect to all the witnesses. Although cautionary "accomplice" instructions are preferred in the federal courts, see United States v. McCabe, 720 F.2d 951 (7th Cir.1983), the failure of a state court to give such an instruction does not rise to the level of a constitutional violation. United States ex rel. Swimley v. Nesbitt, 608 F.2d 1130, 1133 (7th Cir.1979). In light of the instructions actually given by the trial court, the lack of an accomplice instruction affords no basis for relief.
Kappos argues that the prosecution made a "bounty deal" with its chief witness, Hayes, under which Hayes' reward depended upon Kappos' conviction. As an initial matter the state asserts that Kappos has procedurally defaulted this claim. On appeal from the denial of Kappos' post-conviction petition, the state appellate court determined that the issue had been waived for failure to raise it in the trial court or on direct appeal. Kappos v. State, 577 N.E.2d 974, 977 (Ind.Ct.App.1991). Although the appellate court noted its agreement with the trial court's determination that the testimony was not inherently unreliable, the basis for the state appellate decision was waiver, an independent and adequate state ground. See Coleman v. Thompson, 501 U.S. 722, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991). Federal habeas review of this claim is barred in the absence of a showing of cause and prejudice. Id. at 750, 111 S.Ct. at 2565. Kappos has not argued cause and prejudice; therefore, this court cannot consider the claim. Even if we could, the claim is without merit. The district court found that the record did not support the notion that the result of Hayes' arrangement with the State or Hayes' sentence hinged on the results of Kappos' trial.
Kappos also argues that the jury should have been informed of the full extent of the plea agreement and that lack of full disclosure of Hayes' obligations to assist the government violated his rights. But the jury was informed that Hayes had entered into a plea agreement whereby he would testify in exchange for a maximum sentence of forty years. However, in any event, this argument was not raised in the district court, and has been waived.
Kappos claims that the prosecutor improperly referred to him as a "murderer" and "an artful liar" during closing argument. A prosecutor may not vouch for the credibility of witnesses or express a personal opinion about the guilt of the accused. United States v. Young, 470 U.S. 1, 105 S.Ct. 1038, 84 L.Ed.2d 1 (1985). Regardless whether the prosecutor's comments are improper, no constitutional violation has occurred unless the "comments 'so infected the trial with unfairness as to make the resulting conviction a denial of due process.' " Darden v. Wainwright, 477 U.S. 168, 181, 106 S.Ct. 2464, 2471, 91 L.Ed.2d 144 (1986) (quoting Donnelly v. DeChristoforo, 416 U.S. 637, 643, 94 S.Ct. 1868, 1871, 40 L.Ed.2d 431 (1974)); see also Alvarez v. McGinnis, 4 F.3d 531 (7th Cir.1993) ().
The jury was presented with two conflicting stories: Hayes contended that Kappos hired him to kill his wife; Kappos asserted that he had nothing to do with the murder and that Hayes killed Charlene Kappos in a fit of jealous rage. Obviously, one witness was lying. Both the prosecution and the defense argued that the witness presented by the other side had lied. As such, the prosecutor's comments, while possibly questionable in form and emphasis, were essentially a commentary on the credibility issue that the jury had to decide. The jurors were instructed to make their own credibility determinations, and in order to arrive at a verdict, they had to choose between conflicting bodies of testimony. The prosecutor's comments did not rise to the level of a constitutional violation.
Although not addressed in counsel's supplemental brief (and effectively waived by counsel at oral argument), another argument involving a purported error of the prosecutor, which was raised by Kappos in his pro se brief, may be his most serious point and merits discussion: Kappos argues that the prosecution improperly commented on his refusal to answer questions after he asserted his right to remain silent. During the state's case-in-chief, Detective Burden testified that he and two other detectives went to Kappos' home, advised him of his constitutional rights (R. at 432) and began asking questions, which Kappos answered. The detectives then asked Kappos to accompany them to the police station. At the station Kappos was again advised of his constitutional rights. Id. During the state's case-in-chief, Detective Burden testified to what occurred at the station in response to the prosecutor's questions:
(R. at 435). Burden then testified that he returned to Kappos' home approximately two hours later and asked if he could take Kappos' picture. Kappos refused, saying that he had spoken with two attorneys, who had advised him not to cooperate. (R. at 437).
Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976), insures that, once a defendant has been advised of his constitutional rights, pursuant to Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), particularly the "right to remain silent," the prosecution may not comment on his silence. This "does not apply to cross-examination that merely inquires into prior inconsistent statements." Anderson v. Charles, 447 U.S. 404, 408, 100 S.Ct. 2180, 2182, 65 L.Ed.2d 222 (1980). In reviewing Kappos' claim regarding silence, the state courts determined that no Doyle violation had occurred because the comments in question referred to Kappos' pre-arrest silence. See Jenkins v. Anderson, 447 U.S. 231, 100 S.Ct. 2124, 65 L.Ed.2d 86 (1980) (). But the fact that an arrest had not yet occurred does not render Doyle inapplicable. Although Kappos' comments about his refusal to answer more questions occurred prior to his arrest, they were made after he had been given his Miranda warnings. It is then that the promise contained in the statement of Miranda rights precludes the prosecutor from commenting on the defendant's silence. See Fencl v. Abrahamson, 841 F.2d 760 (7th Cir.1988) (). Miranda provides that "once warnings have been given ... [i]f the individual indicates in any manner, at any time prior to or during questioning, that he wishes to remain silent, the interrogation must cease." 384 U.S. at 473-74, 86 S.Ct. at 1627; cf. Davis v. United States, --- U.S. ----, 114 S.Ct. 2350, 129 L.Ed.2d 362 (1994) (). Doyle ensures that the defendant may not be sanctioned merely for invoking the right to remain silent. But he certainly may...
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