Mauricio v. Duckworth

• Decision Date: 02 May 1986
• Docket Number: No. S 85-523.,S 85-523.
• Citation: 633 F. Supp. 1302
• Parties: Arnold MAURICIO, Jr., Petitioner, v. Jack R. DUCKWORTH, Indiana Attorney General, Respondents.
• Court: U.S. District Court — Northern District of Indiana

633 F. Supp. 1302

Arnold MAURICIO, Jr., Petitioner, v. Jack R. DUCKWORTH, Indiana Attorney General, Respondents.

No. S 85-523.

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

May 2, 1986.

Arnold Mauricio, Jr., pro se.

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 Arnold Mauricio, Jr., an inmate incarcerated at the Indiana State Prison, in Michigan City, Indiana. The matter is now before this court on respondents' motion to dismiss, filed as part of their Return to Order to Show Cause. 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.

A careful examination of the underlying state court record and the opinion of the Supreme Court of Indiana in Mauricio v. State, 476 N.E.2d 88 (Ind.1985), reveals that petitioner has exhausted his available state court remedies per 28 U.S.C. § 2254(b), (c); Anderson v. Harless, 459 U.S. 4, 103 S.Ct. 276, 74 L.Ed.2d 3 (1982). Both sides having briefed their respective positions, this petition is now ripe for ruling.

Petitioner was convicted in a state court jury trial of aiding felony-murder and robbery, for which he received a determinate sentence of thirty (30) years. These convictions were affirmed on appeal by the Supreme Court of Indiana. Petitioner now brings this petition for a federal writ of habeas corpus.

Petitioner raises the following issue in this application for habeas relief:

(1) Petitioner's constitutional right to due process was denied when the prosecutor refused to inform the defense of his rebuttal witness.

I.

Pursuant to Indiana statute I.C. § 35-5-1-1, petitioner informed the State of Indiana of his intent to use an "alibi" defense prior to the trial. In his notice he was required to set forth the exact place at which the petitioner claimed to be at the time of the incident, which he did. Petitioner in his notice sought reciprocal notice from the prosecutor. The prosecutor responded pursuant to the statute and provided petitioner with the information concerning the exact date, time and place of the incident.

Petitioner had also filed a motion for discovery previous to the trial requesting the names and addresses of witnesses the State intended to call at trial with their written statements or a summary of their oral statements. The State filed a motion for discovery requesting similar information. The court granted the State's motion for discovery. Petitioner filed a supplemental motion for discovery requesting exculpatory information. Petitioner next filed his response to the State's motion for discovery including a list of witnesses he intended to call including his alibi witnesses. The petitioner filed two motions for sanctions against the prosecutor for failure to comply with the discovery requests. The record is void of any order by the court granting petitioner's motions for discovery, but the petitioner claims that the court granted his motions orally. The prosecutor eventually provided petitioner with a list of fifty-nine (59) witnesses of which he called only twelve (12) at the trial, along with the rebuttal witness the prosecutor never disclosed to the petitioner prior to her testifying.

During the petitioner's case in chief he called Janice Tuttle, the mother of petitioner's girlfriend as a witness. Janice Tuttle testified that immediately prior to the specified time of the crime, between 9:15 and 9:30 P.M. on February 3, 1982, she personally observed petitioner at petitioner's residence along with her daughter, Lisa Michael.

After the petitioner had rested, the State called as a rebuttal witness Sharon McDonald. Sharon McDonald testified that Tuttle's testimony placing the petitioner at his residence at 9:30 P.M. on February 3, 1982 was preconcocted during a discussion between Lisa Michael and her mother on February 4, 1982 which McDonald overheard, and was untruthful. On cross-examination of McDonald, she testified that she had been contacted by the State in June of 1982. Petitioner then moved to strike the testimony of Sharon McDonald, or in the alternative moved for a mistrial. Petitioner argued in support that the State's use of McDonald's testimony was a violation of the discovery order. The State argued in response that it was not required to divulge its rebuttal witnesses. The trial court denied petitioner's motions. On appeal the Supreme Court of Indiana held that the trial court did not error in permitting the testimony by the rebuttal witness.

Respondents contend that the Indiana Statute for Alibi Notice is constitutional and provides due process. The respondents contend that under the analysis of Wardius v. Oregon, 412 U.S. 470, 93 S.Ct. 2208, 37 L.Ed.2d 82 (1973), and more specifically the Seventh Circuit's holding in Bruce v. Duckworth, 659 F.2d 776 (7th Cir.1981), that the alibi statute in question is reciprocal and protects the defendant's due process rights.

In Wardius v. Oregon, supra, the Supreme Court addressed the issue of whether a State statute which required the defendant to disclose certain evidence in order to invoke his alibi defense, but did not require reciprocal discovery from the prosecution violated the defendant's rights under the due process clause. The Court held that the Due Process Clause of the Fourteenth Amendment forbids enforcement of alibi rules unless reciprocal discovery rights are given to criminal defendants. In discussing the concept that liberal discovery promotes the ends of justice best by allowing each party to obtain the maximum amount of information possible in order to prepare their cases and thereby reducing the possibility of surprise during the trial the Court said:

The growth of such discovery devices is a salutary development which, by increasing the evidence available to both parties, enhances the fairness of the adversary system. As we recognized in Williams, nothing in the Due Process Clause precludes States from experimenting with systems of broad discovery designed to achieve these goals. "The adversary system of trial is hardly an end in itself; it is not yet a poker game in which players enjoy an absolute right always to conceal their cards until played. We find ample room in that system, at least as far as `due process' is concerned, for a rule which is designed to enhance the search for truth in the criminal trial by insuring both the defendant and the State ample opportunity to investigate certain facts crucial to the determination of guilt or innocence." Williams v. Florida 399 U.S. 78, at 82 (footnote omitted), 90 S.Ct. 1893, at 1896 26 L.Ed.2d 446 (1970).

Although the Due Process Clause has little to say regarding the amount of discovery which the parties must be afforded, but cf. Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), it does speak to the balance of forces between the accused and his accuser. Cf. In re Winship, 397 U.S. 358, 361-364, 90 S.Ct. 1068, 1070-1073, 25 L.Ed.2d 368 (1970). The Williams Court was therefore careful to note that "Florida law provides for liberal discovery by the defendant against the State, and the notice-of-alibi rule is itself carefully hedged with reciprocal duties requiring state disclosure to the defendant." 399 U.S., at 81 (footnote omitted), 90 S.Ct., at 1896. The same cannot be said of Oregon law. As the State conceded at oral argument, see Tr. of Oral Arg. 19, Oregon grants no discovery rights to criminal defendants, and, indeed, does not even provide defendants with bills of particulars. More significantly, Oregon, unlike Florida, has no provision which requires the State to reveal the names and addresses of witnesses it plans to use to refute an alibi defense.

We do not suggest that the Due Process Clause of its own force requires Oregon to adopt such provisions. Cf. United States v. Augenblick, 393 U.S. 348, 89 S.Ct. 528, 21 L.Ed.2d 537 (1969); Cicenia v. Lagay, 357 U.S. 504, 78 S.Ct. 1297, 2 L.Ed.2d 1523 (1958). But we do hold that in the absence of a strong showing of state interests to the contrary, discovery must be a two-way street. The State may not insist that trials be run as a "search for truth" so far as defense witnesses are concerned, while maintaining "poker game" secrecy for its own witnesses. It is fundamentally unfair to require a defendant to divulge the details of his own case while at the same time subjecting him to the hazard of surprise concerning refutation of the very pieces of evidence which he disclosed to the State. (footnotes omitted)

Wardius v. Oregon, 412 U.S. at 474, 93 S.Ct. at 2211.

The respondents do not contest these principles but rather contend the Indiana statute has carefully provided for reciprocal discovery. The Seventh Circuit in Bruce v. Duckworth, supra, addressed the issue of whether the statute on its face denies criminal defendants due process, and found that it does not. The Supreme Court of Indiana in State ex rel Keller v. Criminal Court of Marion, 262 Ind. 420, 317 N.E.2d 433 (1974), applying the Wardius test held that the alibi statute was constitutional. Further, the Supreme Court of Indiana in addressing the same issue on direct appeal in Bruce v. State, 268 Ind. 180, 375 N.E.2d 1042 (1978), held that the alibi statute does require reciprocal discovery to the extent reasonably possible.

The Indiana alibi statute, as set forth in I.C. § 35-5-1-1, which petitioner challenges reads:

35-5-1-1 9-1631. Notice to prosecuting attorney when evidence of alibi to be offered — Exception. — Whenever a defendant in a criminal case in a court other than that of a justice of the peace shall propose to offer in his defense evidence of alibi, the defendant shall, not less than ten 10 days before the trial of such cause, file and serve upon the

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