Rowan v. Owens

• Decision Date: 28 December 1984
• Docket Number: No. 84-1494,84-1494
• Parties: Tyreese ROWAN, Petitioner-Appellant, v. Norman G. OWENS, Superintendent, Indiana State Reformatory, Pendleton, Indiana, Respondent-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1186

752 F.2d 1186

Tyreese ROWAN, Petitioner-Appellant, v. Norman G. OWENS, Superintendent, Indiana State Reformatory, Pendleton, Indiana, Respondent-Appellee.

No. 84-1494.

United States Court of Appeals, Seventh Circuit.

Argued Sept. 11, 1984.

Decided Dec. 28, 1984.

F. Thomas Schornhorst, Ind. Univ. School of Law, Bloomington, Ind., for petitioner-appellant.

David A. Arthur, Deputy Atty. Gen., Indianapolis, Ind., for respondent-appellee.

Before POSNER, Circuit Judge, SWYGERT, Senior Circuit Judge, and DUPREE, Senior District Judge. ^*

POSNER, Circuit Judge.

In 1979 Tyreese Rowan was convicted by a jury in Indiana of voluntary manslaughter, criminal deviate conduct, and burglary, and sentenced to prison terms (to run consecutively) of 20, 50, and 20 years. The Supreme Court of Indiana upheld his conviction, Rowan v. State, 431 N.E.2d 805 (Ind.1982), and Rowan then filed a petition for habeas corpus in federal district court. After reviewing the transcript of Rowan's state trial, the district judge denied the petition, and Rowan has appealed.

His principal argument is that no rational jury could have found him guilty beyond a reasonable doubt; and if this argument is right, Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), requires us to reverse. The evidence against Rowan was circumstantial. A 72-year-old woman who lived alone, Evelyn Ayer, was found dead in her home, lying on her back on the living-room floor, with a bloodstain under her head and an overturned footstool, also bloodstained, nearby. She was naked from the waist down, and all the clothes that she had been wearing from the waist down were piled on the upper part of her body. Blood was found in her vagina: there was evidence (inconclusive, as we shall see) of semen in the vagina; and there was a tear, with some blood, on the outside of the labia majora (which are the folds that cover the female sexual orifice). She had been killed by heavy blows to the head, possibly with the footstool, sometime in the late afternoon or early evening.

The back door of her house had been forced open; and in the frame of the door was found a hair from a black person. Tyreese Rowan is black; and there was evidence that no black people had worked for or visited Miss Ayer at any time near her death, and that no black people lived within several blocks of her home. On the bedroom floor were found two open purses and some bandaids, and a fingerprint lifted from the can of bandaids (found on the dresser top in the bedroom) proved to be Rowan's. A man's red pocket comb was found in the living room; Rowan had had such a comb. Finally, Miss Ayer's car keys were found across the street from the home of Rowan's mother, and Rowan had been staying with his mother on the day of Miss Ayer's death.

There is no doubt that Miss Ayer was killed, and her apartment burglarized. (It is true, as we shall see, that there was a prior acquaintance between Rowan and Miss Ayer, but it had been ten years since Rowan had been in her house; and, as we have noted, the back door had been forced open.) And there is little doubt that she was the victim of a sexual assault. There is also no serious doubt that whoever did these things did them with sufficient purposefulness to satisfy the state-of-mind requirements of these offenses. The burglary and the sexual assault cannot have been accidental or merely negligent. And as to whether the assailant killed Miss Ayer intentionally (as he would have to do to be guilty of voluntary manslaughter, see Ind.Code Sec. 35-42-1-3), the jury could reasonably infer that one who struck heavy blows to the head of an elderly woman intended to kill her, see Rowan v. State, supra, 431 N.E.2d at 812; Anthony v. State, 274 Ind. 206, 409 N.E.2d 632, 636 (1980); Robinson v. State, 262 Ind. 463, 465, 317 N.E.2d 850, 852 (1974), in the sense that he must have known, and not cared, that death was an extremely likely consequence of the assault. No more is required for intent to kill. See, e.g., Peats v. State, 213 Ind. 560, 570, 12 N.E.2d 270, 275-76 (1938); LaFave & Scott, Handbook on Criminal Law 196 (1972).

True, there is less than complete certainty that Rowan was the assailant. He points out that each piece of evidence--the fingerprint, the comb, the hair, the car keys--that placed him in Miss Ayer's home is inconclusive, but he ignores the fact that the probability that all four pieces of evidence falsely point to him as the assailant is very small. Suppose that the probability that the fingerprint was not his (or, as he argues, was put on the can months earlier when he was shopping in the store where it was bought) is .01 (a generous estimate); the probability the comb was not his is .50; the probability that the hair was not his is .30; and the probability that someone else discarded Miss Ayer's car keys near his mother's house is .05. Then, assuming these probabilities are independent of each other, the probability that Rowan was not in Miss Ayer's house at a time near when she died is only .000075 (.01 X .50 X .30 X .05), which is less than one-hundredth of one percent. (This is the "product rule," lucidly discussed in McCormick's Handbook of the Law of Evidence 492-99 (2d ed., Cleary, 1972).) True, it would not follow that he had killed her; someone else might have entered the house before or after him, and done the deed. But that is exceedingly unlikely (especially in light of a statement he made to the police--of which more anon), and does not cast substantial doubt on his guilt. And true, the numbers in our example are arbitrary; but they bring out the point that it is wrong to view items of evidence in isolation when they point in the same direction. The jury was not irrational in concluding that Rowan murdered and sexually assaulted Miss Ayer and burglarized her house.

But could a rational jury have found that he committed the crime of "criminal deviate conduct"? This offense under Indiana law is more specific than the name suggests. It is (so far as relevant here) committed by "a person who knowingly or intentionally causes penetration, by an object or any other means, of the sex organ or anus of another [living, see Ind.Code Sec. 35-41-1-2; Rowan v. State, supra, 431 N.E.2d at 813] person," against the will of the victim, or without the victim's knowing what is happening. Ind.Code Sec. 35-42-4-2(b). (This subsection was repealed in 1984, by Ind.Pub.L. 183-1984, Sec. 3, but the attack on Miss Ayer took place in 1979.) There is some doubt whether Miss Ayer was alive when Rowan removed her clothes and tore the gash (we do not know with what) in her labia majora. But the pathologist who performed the autopsy on her testified that the blows to the head and the tear in the labia majora were made at about the same time, that probably she had lived between 1/2 and 1 1/2 hours after the blows to the head, and that probably the tear was not a post-mortem wound. Although there was contrary evidence (the tear had not bled much, as it might have been expected to do--given its location in an area rich with blood vessels--if her heart had still been pumping blood), the pathologist's evidence was sufficient to persuade a reasonable jury beyond a reasonable doubt that Miss Ayer had still been alive, though quite possibly unconscious, when the sexual assault occurred. Maybe it would be better if medical and other expert witnesses were required to attach probability figures to their estimates (a controversial issue on which we need take no stand here); but they are not; and the jury was entitled to accept the pathologist's testimony as having sufficient certainty to establish the sequence between the assault and death.

The serious problem is with another element of the offense of criminal deviate assault: penetration. Although the labia majora is a part of the female sexual organ (the part that closes over the vagina), and whatever object caused the tear "penetrated" the surface of the labia majora, this is not the sense in which the statute uses the word "penetration." The point of section 35-42-4-2(b) is not to punish sexual mutilation as such but to punish (1) sodomy (other than between consenting adults), and (2) rape or sodomy (other than between consenting adults) by objects other than the male sexual organ. See 35 West's Ann.Ind.Code Sec. 35-42-4-2, at p. 456 (1978); Riffe v. State, 464 N.E.2d 333, 335-36 (Ind.1984); McGill v. State, 465 N.E.2d 211, 214 (Ind.App.1984). But there must still be penetration (however slight) in a sexual sense; and a cut on the outside of the female sexual organ is not such a penetration. Thus, while injury to the exterior of the female sexual organ is often used as evidence of penetration, see, e.g., Jackson v. State, 452 So.2d 438, 440-41 (Miss.1984), there invariably is other evidence as well. See, e.g., id. at 439, 441; Bledsoe v. State, 274 Ind. 286, 410 N.E.2d 1310, 1317 (1980). (Allbritten v. State, 262 Ind. 452, 454, 317 N.E.2d 854, 855 (1974), refers only to the " 'considerable injury to the vulva and outer portion of the vagina,' " but any injury to the vagina would imply some penetration into the female sexual organ. A purely exterior injury to the labia majora need not.)

There is no direct evidence that Rowan effected a penetration of Miss Ayer's sex organ, but there is indirect evidence. The fact that she had been stripped naked from the waist down indicated that rape had been contemplated. The tear in the labia majora had been caused by an object moving in the direction of the vagina. More than a trace of blood was found in the vagina, which suggests, though does not by itself prove (the pathologist acknowledged the possibility of internal bleeding from other causes) that there had been some penetration. The test for acid phosphatase (a substance not found normally in the vagina, but found in semen) was marginally positive--though this is only slight (maybe no) additional evidence...