Kimble v. Duckworth

• Decision Date: 13 April 1984
• Docket Number: No. S 83-350.,S 83-350.
• Citation: 583 F. Supp. 1072
• Parties: Bruce KIMBLE, Petitioner, v. Jack R. DUCKWORTH, Superintendent, and Indiana Attorney General, Respondents.
• Court: U.S. District Court — Northern District of Indiana

583 F. Supp. 1072

Bruce KIMBLE, Petitioner, v. Jack R. DUCKWORTH, Superintendent, and Indiana Attorney General, Respondents.

No. S 83-350.

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

April 13, 1984.

Bruce Kimble, pro se.

Linley E. Pearson, Atty. Gen. of Indiana, Robert B. Wente, Deputy Atty. Gen., Indianapolis, Ind., for respondents.

MEMORANDUM AND ORDER

ALLEN SHARP, Chief Judge.

This petition for writ of habeas corpus was filed pursuant to 28 U.S.C. § 2254 by an inmate at the Indiana State Prison in Michigan City, Indiana. In accord with the dictates of Townsend v. Sain, 372 U.S. 293, 83 S.Ct. 745, 9 L.Ed.2d 770 (1963), the complete state court record has been filed with, and carefully examined by, this court. Both sides having briefed their respective positions, this matter is now ripe for ruling.

Petitioner was convicted in a state court jury trial of first degree murder and first degree burglary, for which he received an indeterminate sentence of life imprisonment on September 22, 1977. This conviction was unanimously affirmed on direct appeal by the Supreme Court of Indiana. Kimble v. State, 270 Ind. 539, 387 N.E.2d 64 (1979).

Following his unsuccessful appeal, petitioner filed a motion for post-conviction relief under Ind.P.C.R. 1 § 1 with the convicting trial court. Upon its denial, the motion was appealed to the Supreme Court of Indiana, which again denied relief by unanimously affirming the trial court's denial and dismissal order. Kimble v. State, Ind., 451 N.E.2d 302 (1983). It appearing that petitioner has exhausted his available state court remedies, 28 U.S.C. § 2254(b), (c); Anderson v. Harless, 459 U.S. 4, 103 S.Ct. 276, 74 L.Ed.2d 3 (1982); Perry v. Fairman, 702 F.2d 119 (7th Cir.1983), and in the absence of a request for appointed counsel under 28 U.S.C. § 1915(d), this court turns now to an examination of the merits of petitioner's application for federal habeas relief.

Petitioner raises seven issues in this petition:

(1) whether the state trial court committed error by failing to read the final instructions to the jury before the jury retired to deliberate;

(2) whether the state trial court committed error by instructing the jury about the possibilities of parole, clemency, and reduction of sentence (3) whether the prosecutor's referring to petitioner's prior criminal record during trial constituted prosecutorial misconduct;

(4) whether the act of informing the jury that the crime for which petitioner was on trial was "all over the television" constituted prosecutorial misconduct;

(5) whether petitioner was denied the effective assistance of counsel;

(6) whether the trial court erred in denying petitioner's request for the presence and assistance of an inmate lay advocate at this trial and,

(7) whether the cumulative effect of the above alleged errors deprived petitioner of a fundamentally fair trial. Each of the above issues will be addressed in its turn.

I.

At the conclusion of trial, the following exchange took place concerning the reading of final instructions:

Prosecutor: Are you going to read the instructions?

Court: If you want me to. Mr. Mayer?

Mr. Mayer: Oh, Judge, I don't care if you read them or not, we have all been here a long time, I'm going to comment on them in my argument, so I don't care if the court reads them or not.

* * * * * *

Court: So both parties would waive rereading of the preliminary instructions and waive reading of the final instructions?

* * * * * *

Mr. Mayer: I think so. (R.Tr. 949-950).

Petitioner argues that the failure of the trial judge to read the instructions to the jury was an error so fundamental to his fair trial right that his attorney's waiver of that requirement was invalid, i.e., that only the petitioner could make such a waiver, and then only after having been fully informed by the trial judge of his "right" to have them read to the jury, so as to render his waiver a knowing and intelligent one.¹

The Supreme Court of Indiana addressed the above argument as follows:

Appellant claims that it was fundamental error to waive the reading of the final instructions and cites Purdy v. State, (1977) 267 Ind. 282, 369 N.E.2d 633, for support. Purdy held that the defendant has the clear right to have the final instructions read aloud to the jury. In addition, appellant claims that he did not knowingly waive the reading of the final instructions. Defense counsel Mayer usually discussed waiving the reading of the final instructions with his clients. However, appellant states that Mayer testified at the hearing that he never discussed such a matter with appellant. Appellant misstates the record. The statement Mayer made, and which appellant repeats in the brief, was in response to a different question and did not deal with appellant Kimble at all. What Mayer said was while he could not remember specifically discussing the matter, appellant must have agreed with his decision to waive the reading. Mayer reached this conclusion because he always discussed these matters with his clients before making such a decision. Regardless, we find Rice v. State (1981) Ind., 426 N.E.2d 680, to be controlling. As found here, the defense counsel in Rice waived the reading of the final instructions. This Court held that since the decision was made before the clear right in Purdy was made known, defense counsel had done nothing wrong and the waiver did not amount to fundamental error. Id. 426 N.E.2d at 682. The same rationale applies here. Purdy was handed down in December, 1977, and appellant was convicted in September, 1977. There is no error on this issue.

Kimble v. State, supra, 451 N.E.2d at 304.

While it is true, as petitioner argues, that the Supreme Court of the United States has always required that waivers of rights be made "knowingly and intelligently," it is equally clear that "there is no single standard for determining when the waiver of a right will be sufficient." J. Nowak, R. Rotunda and J. Young, Constitutional Law 564 (2d ed. 1983) (footnote omitted). Thus, while the Court has required both a careful warning and an explicit waiver before in-custody interrogation of a suspect may proceed, Brewer v. Williams, 430 U.S. 387, 97 S.Ct. 1232, 51 L.Ed.2d 424 (1977), these requirements are markedly relaxed where searches of a person or his property are involved. Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973). J. Nowak, et al., Constitutional Law, supra.

In line with the above, and at one extreme of this "waiver scale" would be the extremely stringent standards set forth in F.R.Crim.P. 11 for a district court to follow before a guilty plea may be accepted. At the other end of this scale would be those tactical steps adopted by defense counsel during and after the trial itself. See, e.g., United States v. Martinez, 604 F.2d 361, reh. denied, 607 F.2d 1006 (5th Cir.), cert. denied, 444 U.S. 1034, 100 S.Ct. 708, 62 L.Ed.2d 671 (1979) (failure to object to trial judge's decision to continue trial in defendant's absence affirmed absent showing of plain error); United States v. Warme, 572 F.2d 57 (2d Cir.), cert. denied, 435 U.S. 1011, 98 S.Ct. 1885, 56 L.Ed.2d 393 (1978) (failure to object to trial judge's decision to proceed in the defendant's absence constitutes waiver for purposes of raising issue on appeal); United States v. Brown, 571 F.2d 980 (6th Cir.1978) (failure to object to defendants' absence from in-chambers conference regarding juror dismissal constituted waiver of issue).

Applying the above to the facts of this case, this court concludes that the state trial court's failure to read the instructions to the jury, while hardly commendable, does not rise to the level of the breach of a right so fundamental as to be subject to the level of strict judicial scrutiny required, e.g., under F.R.Crim.P. 11.² Thus, the only question confronting this court is whether defense counsel's waiver of the requirement that the instructions be read to the jury was effective so as to bind the petitioner.

As the Supreme Court of Indiana declared in ruling on petitioner's post-conviction relief motion, petitioner's defense counsel stated that petitioner must have agreed to the waiver, because said defense counsel made it a normal practice to discuss such matters with his clients before agreeing to a waiver. 451 N.E.2d at 304.

Nevertheless, and regardless of the above, the critical point here is precisely the one made by the Supreme Court of Indiana in Rice v. State, Ind., 426 N.E.2d 680 (1981): such waivers by counsel made prior to the Purdy decision are binding on their clients for the reasons that (1) Purdy was not to be applied retroactively, because (2) such waivers do not amount to fundamental error. Rice v. State, 426 N.E.2d at 682. This court finds the Supreme Court of Indiana's reasoning in Rice to be compelling and apposite to the facts of this case. Accordingly, petitioner's claim on this count must fail.

II.

Petitioner raises as his second ground for relief the issue of whether the state trial court committed error by instructing the jury about the possibilities of parole, clemency, and reduction of sentence.

The trial court's final instruction number 20, given without objection, reads as follows:

A person who is convicted of a crime by a jury is sentenced by the judge. In many cases the judge has certain sentencing alternatives which may include probation, restitution, short sentences, rehabilitation programs, etc. In other cases the law requires the judge to sentence to a term of imprisonment that is either fixed by the law, or set by the jury.

A person who is sentenced to imprisonment for less than life is entitled by law to a reduction of his time based upon a certain schedule and upon his behavior in the institution. Also he is given credit toward his sentence for time spent in jail on this charge. For these reasons it is possible that a person could serve considerably less than the

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