Lax v. Duckworth
| Decision Date | 07 February 1989 |
| Docket Number | Civ. No. S 88-244. |
| Citation | 751 F. Supp. 1273 |
| Parties | Kenneth Robert LAX, Petitioner, v. Jack R. DUCKWORTH, and Indiana Attorney General, Respondents. |
| Court | U.S. District Court — Northern District of Indiana |
Kenneth Robert Lax, Michigan City, Ind., pro se.
Sabra A. Weliever, Deputy Atty. Gen., Indianapolis, Ind., for respondents.
On April 28, 1988, pro se petitioner, Kenneth Robert Lax, filed a petition seeking relief under 28 U.S.C. § 2254. The record discloses that there has been the necessary compliance with Lewis v. Faulkner, 689 F.2d 100 (7th Cir.1982). The state 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).
The petitioner was convicted in the St. Joseph Superior Court of Robbery, a Class A felony, on March 30, 1979. He was sentenced to a presumptive term of 30 years. By post-trial stipulation, that sentence was later reduced to 26 years. A direct appeal was taken to the Supreme Court of Indiana, which unanimously affirmed the aforesaid conviction in an opinion reported in Lax v. State, 275 Ind. 34, 414 N.E.2d 555 (1981). The opinion was authored by Justice Prentice.
Thereafter, the petitioner filed a petition for post-conviction relief which was heard by the Honorable Robert L. Miller, Jr., then a Judge of the St. Joseph Superior Court. The petition was denied and the denial was unanimously affirmed by the Court of Appeals of Indiana, Fourth District. The unpublished opinion was authored by Judge Young on March 17, 1987. Although the opinion was unpublished, it is cited at 505 N.E.2d 509 (1987). The decision is fully incorporated by reference and is attached hereto as Appendix "A". The findings of fact as recorded in the aforementioned decision are presumably correct.
Justice Stewart, speaking for the Supreme Court of the United States in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), stated:
A judgment by a state appellate court rejecting a challenge to evidentiary sufficiency is of course entitled to deference by the federal courts, as is any judgment affirming a criminal conviction. But Congress in § 2254 has selected the federal district courts as precisely the forums that are responsible for determining whether state convictions have been secured in accord with federal constitutional law. The federal habeas corpus statute presumes the norm of a fair trial in the state court and adequate state postconviction remedies to redress possible error. See 28 U.S.C. § 2254(b), (d). What it does not presume is that these state proceedings will always be without error in the constitutional sense. The duty of a federal habeas corpus court to appraise a claim that constitutional error did occur — reflecting as it does the belief that the "finality" of a deprivation of liberty through the invocation of the criminal sanction is simply not to be achieved at the expense of a constitutional right — is not one that can be so lightly abjured.
Id. at 323, 99 S.Ct. at 2791. See also Sumner v. Mata, 449 U.S. 539, 101 S.Ct. 764, 66 L.Ed.2d 722 (1981); Dooley v. Duckworth, 832 F.2d 445 (7th Cir.1987), cert. denied, 485 U.S. 967, 108 S.Ct. 1239, 99 L.Ed.2d 438 (1988); United States ex rel. Haywood v. O'Leary, 827 F.2d 52 (7th Cir.1987); Bryan v. Warden, Indiana State Reformatory, 820 F.2d 217 (7th Cir. 1987), cert. denied, 484 U.S. 867, 108 S.Ct. 190, 98 L.Ed.2d 142 (1987); Shepard v. Lane, 818 F.2d 615 (7th Cir.1987), cert. denied, 484 U.S. 929, 108 S.Ct. 296, 98 L.Ed.2d 256 (1987); and Perri v. Director, Department of Corrections, 817 F.2d 448 (7th Cir.1987), cert. denied, 484 U.S. 843, 108 S.Ct. 135, 98 L.Ed.2d 92 (1987).
In the present petition, the petitioner raises four grounds for relief under § 2254, as follows:
There can be no doubt that Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963) and United States v. Agurs, 427 U.S. 97, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976) impose a general due process obligation to disclose information favorable to a criminal defendant that is in the possession of the prosecutor. This right has been recently discussed by the Court of Appeals in this Circuit in United States v. Zambrana, 841 F.2d 1320 (7th Cir.1988).
There is a suggestion that there has been a procedural default with regard to this issue, but this court is reluctant under Murray v. Carrier, 477 U.S. 478, 106 S.Ct. 2639, 91 L.Ed.2d 397 (1986), and Smith v. Murray, 477 U.S. 527, 106 S.Ct. 2661, 91 L.Ed.2d 434 (1986), to go that route in the face of the charge that counsel has been ineffective under the Sixth Amendment of the Constitution of the United States. Therefore, it is necessary to deal with the merits of this claim.
The issue here pertains to a failure to provide discovery in regard to police mug shots. At the PCR hearing, Sergeant Grabner testified that police mug shot files are constantly being updated. Each time a person is arrested, a new picture is taken and the older picture in the police files is replaced. See PCR record, page 265. In the state's response to discovery which was provided to the petitioner, the current picture was taken out of the so-called mug book. Apparently, counsel for petitioner had also had the picture in his possession for quite some time and could have easily discovered an error by simply looking at the dates.
The true test for non-disclosure of alleged exculpatory evidence is whether the omitted evidence creates a reasonable doubt that did not otherwise exist. This is the specific teaching of the opinion of Justice Stevens in United States v. Agurs, supra. In this case, the evidence was not exculpatory. A witness identified the petitioner from the picture. Defense counsel attempted to use the picture to show that the witness, Elliott, picked out a picture of the petitioner with a moustache when she had not told the police sketch artist that her attacker had a moustache. This point was made abundantly to and in the presence of the jury when a considerable number of witnesses testified that the petitioner had worn a moustache ever since he had been able to grow one.
The petitioner claims that the picture used in the lineup is newly discovered evidence that entitles him to a new trial. For such a decision to become grounds for relief under § 2254, the same must be a constitutional error. See Bell v. Duckworth, 861 F.2d 169 (7th Cir.1988). A petitioner must establish that the alleged error constituted a fundamental defect which inherently results in a complete miscarriage of justice. See Hill v. United States, 368 U.S. 424, 428, 82 S.Ct. 468, 471, 7 L.Ed.2d 417 (1962), and Stone v. Powell, 428 U.S. 465, 477 n. 10, 96 S.Ct. 3037, 3044 n. 10, 49 L.Ed.2d 1067 (1976).
It is elementary that any such newly discovered evidence must have been discovered since the trial. Here, the petitioner knew the photograph existed and could have been obtained by requesting a continuance of the trial. However, this court will not bottom the decision on that fact alone. The more fundamental question is whether the introduction of this photograph could have affected the verdict. It did not.
The question of whether the attacker of Mrs. Elliott had a moustache, and whether she reported that as a part of the identifying description was a question litigated extensively in this case. It is most doubtful that this particular item of withheld evidence would have caused a different result.
The next issue is whether there was effective assistance of trial counsel under Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), which requires a two-prong consideration. First, there must be a showing that counsel's performance was deficient, and secondly, there must be a showing of actual prejudice resulting therefrom. The specifications of the inadequacy of counsel are as follows:
Petitioner asserts that trial counsel should have requested a continuance when it was discovered that the prosecution had produced the wrong picture during discovery. If counsel had requested a continuance, he could have gotten the correct picture and introduced it to the trial. The question to decide is what difference either of those events would have made. The witness testified that the petitioner's moustache on January 15, 1978, was thinner than it was on February 15, 1978, the date the produced picture was taken. The argument that the picture was designed to support was well and clearly made before the jury. It does not constitute failure of trial counsel to be effective under the Sixth Amendment.
Petitioner contends that his counsel should have called Alma Traylor as a witness. During cross-examination of the victim, petitioner's counsel asked her the following question:
"Didn't you have a conversation out here just this noon with the prosecutor to the extent that you said you were not certain...
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