Kelley v. Farley

• Decision Date: 02 November 1995
• Docket Number: No. 3:94cv723AS.,3:94cv723AS.
• Citation: 905 F. Supp. 571
• Parties: Michael KELLEY, Petitioner, v. Robert FARLEY, Indiana Attorney General, Respondents.
• Court: U.S. District Court — Northern District of Indiana

905 F. Supp. 571

Michael KELLEY, Petitioner, v. Robert FARLEY, Indiana Attorney General, Respondents.

No. 3:94cv723AS.

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

November 2, 1995.

Michael Kelley, pro se.

Randall Koester, Office of Indiana Attorney General, Indianapolis, IN, for respondents.

I. INTRODUCTION

ALLEN SHARP, Chief Judge.

On September 12, 1994, pro se petitioner, Michael Kelley (hereinafter "Petitioner" or "Kelley"), then an inmate at the Indiana State Prison located in Michigan City, Indiana, filed a petition in this court seeking relief under 28 U.S.C. § 2254 raising the same issues that he raised in his post-conviction proceedings. The response filed by the respondents on December 27, 1994, demonstrates the necessary compliance with Lewis v. Faulkner, 689 F.2d 100 (7th Cir.1982). Kelley's Traverse filed on March 7, 1995 is quite lawyerlike in form. The state court record has been filed and examined pursuant to the mandates of Townsend v. Sain, 372 U.S. 293, 83 S.Ct. 745, 9 L.Ed.2d 770 (1963).

Kelley was convicted of murder in the perpetration of a robbery in 1982 by a jury in Lake County Superior Court, the Honorable James L. Clement presiding.¹ For his efforts, Kelley received a forty year prison sentence. On direct appeal Kelley's conviction was affirmed by the Supreme Court of Indiana in Kelley v. State, 470 N.E.2d 1322 (1984) with Justice Donald H. Hunter writing the opinion with Justices DeBruler and Prentice concurring in result without opinion. Thereafter, post-conviction relief was sought in the state trial court. The court denied relief and was affirmed on appeal by the Third District of the Court of Appeals in an opinion entered on May 26, 1994, authored by Judge Garrard and concurred in by Judges Sharpnack and Staton. That affirmation is marked as Appendix "A" and is attached hereto and incorporated herein. The dispositive issue in this case concerns communication between the judge and jury during deliberation.

II. ISSUES

Whether Judge Clement's comments to the jury concerning possible sequestration in a motel coerced the jury into a verdict thereby violating Kelley's right to a fair trial under the Due Process clause of Amendment XIV of the United States Constitution. Whether Kelley's trial counsel was ineffective for failing to object to the Judge's comments.

III. FACTS

This court is entitled to presume that the facts as found by the Indiana Court of Appeals are correct. 28 U.S.C. 2254(d); Johnson v. Trigg, 28 F.3d 639 (7th Cir.1994); Lewis v. Huch, 964 F.2d 670, 671 (7th Cir. 1992); Andersen v. Thieret, 903 F.2d 526, 531 (7th Cir.1990). In the May 26, 1994 memorandum and decision affirming the decision of the post-conviction court, the Indiana Court of Appeals considered the claim at issue in this Petition and in doing so stated the relevant facts as:

On December 13, 1982 at approximately 12:00 p.m., the jury in Kelley's case retired to deliberate. At nearly 10:00 p.m., Judge Clement met with counsel concerning the possibility of arranging hotel accommodations for the jury. The judge then called the jury into the courtroom and inquired as to the status of the deliberations. The foreman stated that they were still talking but had not reached a verdict. There was no indication from the jury that it was deadlocked or having any unusual problems. Judge Clement raised the possibility of going to a hotel within an hour if no verdict was reached, and either the foreman or another juror replied that the jury did not want to go to a hotel. The judge sent the jury back to deliberate, and the jury returned a guilty verdict approximately one hour later. Kelley's attorney did not object at any state of these proceedings, nor did he raise the issue in Kelley's motion to correct errors. Kelley did raise this issue in a pro se motion to correct errors, and the motion was denied. Kelley's appellate counsel, William Enslen, did not raise the issue on direct appeal to the Supreme Court.

Although this court is entitled to presume that the facts as found by the state court are correct, there was no recording of the conversation between the judge and the jury. Therefore, the factual findings of the post-conviction court and the Indiana Court of Appeals are based upon the post-conviction testimonial memories of Kelley and his trial counsel, Herbert I. Shaps. Accordingly, this court believes that it would be helpful to reproduce Kelley's testimony regarding his recollection of Judge Clement's comments to the jury. Kelley testified at his post-conviction hearing that:

The judge asked the jury foreman if they had reached a verdict and the foreman said, "No, we haven't," and he said, "Well, is there any problem," and the foreman said — "Well," before he could even answer the question, he said, "Well, I called you out here to sent you to a motel". He said, "Do you want to go to a motel," and they all shook their head no, and at that time I think it was they had a sidebar conversation. Mr. Shaps, Mr. Burke and the Judge had a little conversation and then he turned back to them and asked them about going to the motel, and whether they wanted to go or not, and they indicated they didn't want to go and he asked them again if they were having any problems or something to that effect, and they stated that they weren't having any problems, but they didn't want to go to a motel, and he said, "Well, I don't know what else to do. You haven't indicated any problems. I'm going to give you one more hour to come back with a verdict. If you don't come back with a verdict within an hour," he said, "you'll be sequestered in a motel overnight and you'll resume deliberations in the morning."

Record of Post-Conviction Proceedings, Vol. 1 of 1. p. 231 et seq. It would not be helpful for this court to conduct an evidentiary hearing. The recollections of Judge Clement's comments to the jury were adequately recorded at the post-conviction relief hearing on June 10, 1992. There is no reason to believe, and the record does not show, that the memories of the participants in the trial would be any better at a hearing before this court as to an event that took place more than 13 years ago.

IV. DISCUSSION

The relationship between a deliberating jury and a trial judge is a most sensitive one which the judge must approach with a great sense of restraint. In this Circuit it is abundantly clear that due process considerations are given close attention in the dealings between the deliberating jury and a trial judge in both state and federal criminal cases. See, e.g., United States v. Rodriguez, 67 F.3d 1312 (7th Cir.1995); United States v. Smith, 31 F.3d 469 (7th Cir.1994). United States v. Peak, 856 F.2d 825 (7th Cir.1988).

However, this court does not sit as a court of common law review for state criminal appeals. The focus here under 2254 is not on state law violations, Estelle v. McGuire, 502 U.S. 62, 112 S.Ct. 475, 116 L.Ed.2d 385 (1991), Bell v. Duckworth, 861 F.2d 169, 170 (7th Cir.1988) but on the requirement of a defendant's right to a fair trial under the Due Process Clause of Amendment XIV of the Constitution of the United States. Fundamental due process requires that a guilty jury verdict result from a collection of individuals satisfied within their own conscious that the accused is guilty beyond a reasonable doubt. In arriving at this collective consciousness, the jurors may consider their own views as well as the views of their fellow jurors. Unanimity is secured by jurors comparing and arguing each other's viewpoints. The process is intended to be without the pressure of time constraints — jurors should remain free to deliberate as long as they are making progress towards a verdict.

However, it is not uncommon for deliberations to bog down and for the court to order a cessation of deliberation for the night. See United States v. Arciniega, 574 F.2d 931 (7th Cir.1978). It may be that the physical and/or mental health of the jurors prevents further deliberation. Fatigued by hours of discussing, arguing, pleading, and cajoling with those in disagreement, jurors need an opportunity to rest, relax, and ponder the day's events. The jurors may also become deadlocked or have a question about the law.

The fact that a judge chooses to stop deliberations is not per se unconstitutional. It is entirely reasonable for the court to decide at what point the jury should cease deliberating for the night when reason and common sense demand it. However, in making that decision, the judge must avoid using language and procedures which could coerce a jury into a verdict. "It is not proper to give an instruction censoring jurors for not agreeing with the majority." McGilberry v. State, 516 So.2d 907 (Ala.Crim.App.1987). It is also improper to give supplemental instructions urging a jury to forego their differences and come to a unanimous decision in the interests of expediency. Rodriguez, 67 F.3d at 1320; See also, Edwards v. Butler, 882 F.2d 160, 166 (5th Cir.1989); United States v. Bottom, 638 F.2d 781, 786 n. 4 (5th Cir.1981). Kelley alleges that Judge Clement coerced the jury into a verdict by informing the jury that they would be allowed to deliberate for only one more hour before being "locked-up" for the night.

In support of his argument, Kelley cites United States v. Chaney, 559 F.2d 1094 (7th Cir.1977) and United States v. Silvern, 484 F.2d 879 (7th Cir.1973), both of which have roots within Allen v. United States, 164 U.S. 492, 17 S.Ct. 154, 41 L.Ed. 528 (1896). However, the applicability of Chaney and Silvern and their progeny in this § 2254 proceeding is questionable. In Allen the Court approved an instruction that urged deadlocked jurors to, among other things:

listen, with a disposition to be convinced, to each other's arguments; that, if much the larger number were for conviction, a dissenting juror should consider whether his doubt was a reasonable one which made no impression upon the

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