Osborne v. Duckworth

• Citation: 567 F. Supp. 427
• Decision Date: 21 July 1983
• Docket Number: No. S82-558.,S82-558.
• Parties: Ronald J. OSBORNE, Petitioner, v. Jack Raymond DUCKWORTH, Warden, and Indiana Attorney General, Respondents.
• Court: United States District Courts. 7th Circuit. United States District Court of Northern District of Indiana

567 F. Supp. 427

Ronald J. OSBORNE, Petitioner, v. Jack Raymond DUCKWORTH, Warden, and Indiana Attorney General, Respondents.

No. S82-558.

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

July 21, 1983.

John L. Gubbins, Chicago, Ill., for petitioner.

Kermit R. Hilles, Deputy Atty. Gen., Indianapolis, Ind., for Linley E. Pearson, Indiana Atty. Gen.

MEMORANDUM and ORDER

SHARP, Chief Judge.

I.

This case is presently before the court on a petition for writ of habeas corpus, filed pursuant to 28 U.S.C. § 2254 by an inmate at the Indiana State Prison at Michigan City, Indiana. It is conceded by the respondents that petitioner has exhausted his available state court remedies pursuant to 28 U.S.C. § 2254(b), (c). See also, Anderson v. Harless, ___ U.S. ___, 103 S.Ct. 276, 74 L.Ed.2d 3 (1982); Rose v. Lundy, 455 U.S. 509, 102 S.Ct. 1198, 71 L.Ed.2d 379 (1982); and Duckworth v. Serrano, 454 U.S. 1, 102 S.Ct. 18, 70 L.Ed.2d 1 (1981). Further, the complete state court record has been presented to, and carefully examined by, this court. Townsend v. Sain, 372 U.S. 293, 83 S.Ct. 745, 9 L.Ed.2d 770 (1963).

Petitioner, Ronald J. Osborne, is a state prisoner confined at the Indiana State Prison at Michigan City, Indiana. Petitioner was convicted in the Adams Circuit Court of two counts of kidnapping and one count of theft for which he received two fifty year terms for kidnapping and a four year sentence for theft, all sentences to run concurrently. These convictions were affirmed on direct appeal by the Indiana Supreme Court in Osborne v. State, Ind., 426 N.E.2d 20 (1981).

In this action petitioner, who is represented by counsel, contends that his rights were violated because the state had allegedly not preserved the recording of a statement made to the police; because the prosecutor had a piece of paper in his hand while cross-examining a defense witness; because on the first day of jury selection he was brought into the courtroom in handcuffs; and because of the totality of the circumstances. These issues were presented to the Indiana Supreme Court in petitioner's direct appeal.

Petitioner's first allegation is that the Adams County Sheriff's Department had destroyed the tape recording of a statement by Vickie Wigger, one of the kidnap victims. Petitioner moved for a discharge or a mistrial based on the grounds that a tape recording of a statement which may have been potentially exculpatory had been destroyed by "state agents prior to trial." Review of the record indicates that the deputy sheriff may have been confused as to whether this statement by Wigger was actually recorded.

Even assuming that a recording of a statement made by Wigger had been destroyed this does not necessarily mean that any of petitioner's federally protected rights have been violated or that potentially exculpatory evidence had been withheld from him. The record establishes that Wigger never made any statements which were exculpatory to the Petitioner:

Q. And from the time that you got to the police down there in Delaware County, from the time you got up to Decatur, from the time you gave any statements in Decatur, from the time of trial in March of Mr. Osborne, to the time now have you always continued to give the same statement?

A. Yes.

Q. As to the facts, and the same version?

A. Yes.

Q. And have you ever, ever given the police any statement which in any way would relieve the defendant of any responsibility of these charges?

A. No, sir, not at all.

Q. And in essential parts your statements to the police have always been the same, is that correct?

A. That is correct.

(Tr. 539-540).

The Indiana Supreme Court was correct in finding that there was no denial of due process to the Petitioner. Osborne v. State, supra, at 23. Knowing and deliberate concealment of exculpating evidence may justify habeas corpus relief. Lockett v. Blackburn, 571 F.2d 309 (5th Cir.1971), cert. denied, 439 U.S. 873, 99 S.Ct. 207, 58 L.Ed.2d 186 (1979). However, here the statement may not have actually been recorded; by Wigger's own testimony there was no exculpatory statement and there is nothing to indicate that the state purposefully destroyed or withheld this information. Indeed, Osborne's counsel had known that Wigger made a statement to the police several months before the trial. Osborne v. State, supra, at 23. Thus, there is no merit to petitioner's contention that the State violated a constitutionally protected interest by its alleged destruction of, or failure to preserve, a statement purportedly made to the police.

II.

A second issue raised by the petitioner in his application for federal habeas relief is that the conviction was obtained by prosecutorial misconduct in that the prosecutor had a piece of paper in his possession while cross-examining a defense character witness, and attempted to lead the jury and witness into believing that he had a copy of an insurance claim made out by the witness. The standard utilized by federal courts in reviewing the actions of state prosecutors under § 2254 is that there must either be a violation of a specific constitutional guarantee or the prosecution's conduct must render the entire trial fundamentally unfair. See, e.g., Branch v. Estelle, 631 F.2d 1229 (5th Cir.1980). Here the gist of petitioner's allegations is that Brian Hensley testified as a character witness on behalf of the petitioner. (Tr. 716-21). It had been stipulated that the petitioner was carrying Hensley's pistol when he was arrested. (Tr. 67, 459-61). On cross-examination Hensley admitted that he had turned in an insurance claim on the pistol as having been stolen (Tr. 721-22), and when the prosecutor asked him whether or not it had in fact been stolen, he replied, "Well, kind of both." (Tr. 724). Defense counsel moved for a mistrial on the grounds that he assumed the piece of paper in the prosecutor's possession to be the insurance claim which had not been provided in discovery and/or that the prosecutor had engaged in misconduct by "waving around a piece of paper" designed to lead the witness, if not the jury, to believe that the State "actually had an insurance claim." (Tr. 727). The prosecutor stated that he did not have the insurance claim. (Tr. 886).

The seminal case dealing with questions of alleged prosecutorial misconduct is that of Berger v. United States, 295 U.S. 78, 55 S.Ct. 629, 79 L.Ed. 1314 (1935). In that case Justice Sutherland, writing for the Court, declared:

(The Prosecutor) is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done. As such, he is in a peculiar and very definite sense the servant of the law, the twofold aim of which is that guilt shall not escape nor innocence suffer. He may prosecute with earnestness and vigor — indeed, he should do so. But, while he may strike hard blows, he is not at liberty to strike foul ones. It is as much his duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one." 295 U.S. at 88, 55 S.Ct. at 633.

A careful reading of United States v. Rodriguez, 627 F.2d 110 (7th Cir.1980) and the cases cited therein reveals the degree of concern the Court of Appeals for the Seventh Circuit has consistently displayed where acts of prosecutorial misconduct are alleged. Nonetheless, the Supreme Court pointed out emphatically in the recent case of United States v. Hasting, ___ U.S. ___, 103 S.Ct. 1974, 76 L.Ed.2d 96 (1983), in reversing a decision of the Seventh Circuit, that "the harmless error rule of Chapman (v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967)) ... may not be avoided by an assertion of supervisory power, simply to justify a reversal of ... criminal convictions." ___ U.S. at ___, 103 S.Ct. at 1978.

A further nuance of the "harmless error" question regarding alleged prosecutorial misconduct was pointed out by this court in Morrison v. Duckworth, 550 F.Supp. 533 (N.D.Ind.1982). At page 537 of said opinion, this court held as follows:

Where the case involves a petition for writ of habeas corpus as opposed to a direct appeal, the habeas court must first determine whether the prosecutorial misconduct constituted constitutional error. See, e.g., United States ex rel. Smith v. Franzen, 660 F.2d 237 (7th Cir.1981). If the habeas court concludes that the prosecutor's improper remarks did indeed constitute constitutional error, the standard to be applied is a strict one.

A constitutional error will not be found harmless unless the court determines that it was harmless beyond a reasonable doubt. Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 828, 17 L.Ed.2d 705 (1967). "(U)nless there is a reasonable probability that the improperly admitted (questions) contributed to the conviction, reversal is not required." Schneble v. Florida, 405 U.S. 427, 432, 92 S.Ct. 1056, 1059, 31 L.Ed.2d 340 (1972).

United States ex rel. Allen v. Franzen, 659 F.2d 745 (7th Cir.1981).

If, on the other hand, the habeas court concluded that the prosecutorial misconduct does not rise to the level of constitutional error, the habeas court should apply the state's harmless error rule. See, generally, Chapman v. California, 386 U.S. 18 at 21-22, 87 S.Ct. 824 at 826-827; Donnelly v. DeChristoforo, supra, 416 U.S. 637 at 643, 647-48, 94 S.Ct. 1868 at 1871, 1873-1874 40 L.Ed.2d 431.

Turning now to the facts of this case, it is clear that the State possessed only the information that Brian Hensley had claimed that the gun had been stolen. This is information or work product, not evidence which the trial court ordered the State to disclose. That petitioner's trial counsel apparently failed to learn about the claim submitted by their own witness cannot be deemed...