Ortiz v. Duckworth

• Court: U.S. District Court — Northern District of Indiana
• Writing for the Court: ALLEN SHARP
• Citation: Ortiz v. Duckworth, 482 F.Supp. 1083 (N.D. Ind. 1980)
• Decision Date: 14 January 1980
• Docket Number: No. S 79-227.,S 79-227.
• Parties: Hector ORTIZ v. Jack R. DUCKWORTH.

482 F. Supp. 1083

Hector ORTIZ v. Jack R. DUCKWORTH.

No. S 79-227.

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

January 14, 1980.

J. Richard Kiefer, Indianapolis, Ind., Anthony V. Luber, South Bend, Ind., for petitioner.

Theodore L. Sendak, Atty. Gen. of Ind., Indianapolis, Ind., for respondent.

MEMORANDUM AND OPINION

ALLEN SHARP, District Judge.

The petitioner, Hector Ortiz, is a state prisoner who is presently incarcerated at the Indiana State Prison pursuant to a state court conviction for first degree murder. This action is brought under the federal habeas corpus statute, 28 U.S.C. 2254. He appealed his state conviction to the Supreme Court of Indiana which affirmed his conviction in a published opinion in Ortiz v. State, 265 Ind. 549, 356 N.E.2d 1188 (1976).

Counsel for both plaintiff and defendant have fully briefed the issue here presented which has been most helpful. Oral argument was heard while the Court was conducting trials at the Indiana State Prison on December 28, 1979.

I

The entire state transcript has been filed here and carefully examined.

This case raises a single issue here.

The facts in the record appear at pages 390-395 and are stated as follows:

THE FOLLOWING WAS HELD AT 1:55 A.M.

THE FOLLOWING WAS HELD OUTSIDE THE PRESENCE OF THE JURY.

BY THE COURT: It is five (5) minutes to two (2) and the jury has not signaled a verdict yet. I am going to call them in and interrogate them as to the situation they are in. Summon the jury.

AT THIS TIME THE JURY ENTERS THE JURY BOX.

BY THE COURT: Ladies and Gentlemen of the jury, have you reached a verdict? Mr. Manslauj are you the foreman?

A Yes, sir no.

BY THE COURT: Do all of you understand that this case is going to have to be decided and that if you do not reach a verdict the case will have to be re-tried do you understand that, and that you have all taken an oath that you will well and truly try the case before you. I have sent in the instructions have you any difficulty with that?

A No.

BY THE COURT: I am certain that with enough deliberations that you will be able to reach a verdict. You should if you have any messages to send to your families you should write them on sheets of paper and hand them to the bailiffs. You will be sequestered until further notice. Now you may return to the jury room and deliberate upon a verdict.

AT THIS TIME THE JURY LEAVES TO DELIBERATE.

THE FOLLOWING WAS HELD OUTSIDE THE PRESENCE OF THE JURY.

BY THE COURT: Once the jury has received the case they can be separated that is unsequestered only with the consent of the parties, do the parties consent to separation of the jurors?

BY MR. REARDON: I don't understand what the court means.

BY THE COURT: Send them home for the night and bring them back for deliberations tomorrow morning at ten (10).

BY MR. REARDON: I would have to think about that at least for a short period of time before making an answer.

BY THE COURT: Alright, let me know your decision.

THE FOLLOWING WAS HELD AT 5:30 A.M.

THE FOLLOWING WAS HELD IN THE PRESENCE OF THE JURY.

BY THE COURT: Ladies and Gentlemen of the jury, have you reached a verdict?

A Yes, your honor we have.

BY THE COURT: Mr. Pigott could you hand your verdict form to the bailiff? The defendant will stand. "State of Indiana v. BRUCE TYRONE WILLIAMS, Verdict We the jury find the defendant BRUCE TYRONE WILLIAMS to be guilty of Murder in the First Degree and that he shall be imprisoned in the state prison during life." "State of Indiana v. HECTOR ORTIZ, Verdict We the jury find the defendant HECTOR ORTIZ to be guilty of Murder in the First Degree and that he shall be imprisoned in the state prison during life." Those verdict forms, both verdict forms are signed John C. Pigott Jr. Foreman. You may be seated. Does counsel wish to poll the jury?

BY MR. GRADDICK: Yes.

BY THE COURT: You may do so.

BY MR. GRADDICK: Juror No: 1 is that your verdict?

A Yes, sir.

Q Juror No: 2?

A Yes.

Q Juror No: 3?

A Yes.

Q Juror No: 4?

A Yes.

Q Juror No: 5?

A Yes.

Q Juror No: 6?

A Yes.

Q Juror No: 7?

A Yes.

Q Juror No: 8?

A Yes.

Q Juror No: 9?

A Yes.

Q Juror No: 10?

A Yes.

Q Juror No: 11?

A Yes.

Q Juror No: 12?

A Yes.

BY THE COURT: Does counsel have anything to say to the jury before they are discharged? You are now discharged with the thanks of the court for a most difficult decision. Because there is only one (1) trial going next week you are excused from further services until the following week which makes it January 19th. Until then you are discharged. Everyone will stand. The courtroom will be sealed until the jury has left the building.

THE FOLLOWING WAS HELD OUTSIDE THE PRESENCE OF THE JURY.

BY THE COURT: A pre-sentence investigation report is now ordered for sentencing on the 22nd day of January, 1976 at 8:00 A.M. Til then the defendant and each of them are remanded to the custody of the Lake County Sheriff. No bond.

II

The question is whether or not the above statement made to a jury after some ten hours of deliberation by a state court criminal trial judge is so coercive as to be a violation of the due process right of this petitioner under the Fourteenth Amendment to the Constitution of the United States including the incorporated rights therein.

Under the law of Indiana the above instruction during jury deliberations would not be considered coercive and would not, of itself, cause a reversal. Instructions much stronger than this have been recently upheld in Indiana. For example see Guffey v. State, Ind.App., 386 N.E.2d 692 (1979) (transfer denied June 30, 1979). The careful and comprehensive opinion of Judge Robertson there is strong support for the reasoning and result announced here.

If this were a direct appeal from a conviction in a United States District Court, this Court of Appeals would probably reverse this conviction under the holding in United States v. Chaney, 559 F.2d 1094 (7th Cir. 1977). In the Chaney case a United States District Judge with over a quarter of a century experience told the jury there at approximately 12:20 A.M. after the jury had deliberated approximately seven hours with time out for dinner.

"The Court: Members of the jury. In view of the hour the Court is going to present to the jury two envelopes. One marked "Sealed Verdict," the other marked "Unused Forms" with the instruction that the jury continue its deliberation and if the jury is able to arrive at a verdict to enclose the verdict, the executed verdict, in the envelope marked "Sealed Verdict" and the unused forms in the envelope marked "Unused Forms." The foreman will be instructed, or the forewoman, to carry the sealed verdict on his or her person until tomorrow morning, if you arrive at a verdict. If you do not arrive at a verdict then the jury will be brought into the court tomorrow morning at 9:30 and the Court will then determine what course should be taken.

"I might say the hours I am required to spend and the other attaches of the Court we are going to let the jury continue on with these instructions.

"So, with that the jury may continue on. I have told the Marshal that arrangements can be made to take you to a place for coffee or midnight dinner whatever the jury might desire in that regard.

"We will stand adjourned."

(emphasis in opinion)

In Chaney the district judge, sua sponte, called the jury as aforesaid indicated. Also, if this were a direct appeal the supplemental instructions given by the state trial judge would probably not pass muster. See United States v. Brown, 411 F.2d 930 (7th Cir. 1969); and United States v. Silvern, 484 F.2d 879 (7th Cir. 1973).

The key to this case is whether or not the teaching of Jenkins v. United States, 380 U.S. 445, 85 S.Ct. 1059, 13 L.Ed.2d 957 (1965), is applicable fully to state criminal jury trial. Even assuming full application there is a second issue which must be dealt with and that is the issue of waiver.

An examination into the record of Jenkins v. United States is helpful. That case was tried in the United States District Court for the District of Columbia by Judge Alexander Holtzoff, a long time district judge and a recognized authority on federal practice and procedure. In the case, after approximately two hours of deliberation, the district judge received a note indicating a deadlocked jury. In the opinion of the Court of Appeals in the District of Columbia found at 330 F.2d 220 (1964), this added comment appears.

"Significantly, the appellant did not object at the time and protests for the first time on appeal."

The complete instruction given by Judge Holtzoff was as follows:

"The Court: Mr. Foreman, the Court has received your note reading as follows:

"`The jury cannot come to a decision on both counts because of insufficient evidence.'

"Well, you have all the evidence there is, all the evidence that anybody can have. That is what we have jurors for, to decide on the evidence. If there weren't any problems we wouldn't have a jury.

"Now, I am not going to accept this. You have got to reach a decision in this case.

"You may resume your seat, Mr. Foreman.

"Of course, every case involves a problem and you have got to weigh the evidence and reach a conclusion. That is what you are jurors for.

"Now, I am going to let you go home at this time. Each of you think it over overnight and I am going to ask you to be back here by 10 o'clock tomorrow morning and resume your deliberations. Now, from the moment you leave the jury box until you return tomorrow morning at 10 o'clock to resume your deliberations, please don't discuss this case with anyone, not even amongst yourselves, not even at home with members of your families. Each of you can individually think about it, but don't discuss it and don't let anybody talk to you about it. Perhaps after you have had a good rest overnight you will be in a position to reach a verdict. "It is a simple case. We have cases that are much harder than this one that juries decide. As I say,

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