Smith v. Duckworth

• Decision Date: 04 May 1987
• Docket Number: No. S 86-697.,S 86-697.
• Citation: 680 F. Supp. 299
• Parties: Melvin SMITH, Petitioner, v. Jack R. DUCKWORTH and Indiana Attorney General, Respondents.
• Court: U.S. District Court — Northern District of Indiana

680 F. Supp. 299

Melvin SMITH, Petitioner, v. Jack R. DUCKWORTH and Indiana Attorney General, Respondents.

No. S 86-697.

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

May 4, 1987.

Melvin Smith, pro se.

David A. Nowak, Deputy Atty. Gen., Indianapolis, Ind., for respondents.

MEMORANDUM AND ORDER

ALLEN SHARP, Chief Judge.

The petitioner, Melvin Smith, files this petition pro se seeking relief under 28 U.S. C. § 2254. Said petition was filed on December 19, 1986. The petitioner was convicted on May 25, 1966, of the crime of second degree murder in the Lake County Criminal Court and that conviction was affirmed in Smith v. State, 252 Ind. 425, 249 N.E.2d 493 (1969), in a unanimous opinion by the Supreme Court except that Judge Jackson concurred in result without opinion. The state court record has been filed here pursuant to the mandates of Townsend v. Sain, 372 U.S. 293, 83 S.Ct. 745, 9 L.Ed.2d 770 (1963), and examined. The mandates of Lewis v. Faulkner, 689 F.2d 100 (7th Cir.1982), have been followed. As indicated in the reported decision of the Supreme Court by then Judge Givan, the issue there raised was the sufficiency of evidence to support the conviction of murder for which the sentence was life imprisonment.

Justice Stewart speaking for the Supreme Court of the United States in Jackson v. Virginia, 443 U.S. 307, 323, 99 S.Ct. 2781, 2791, 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 believe 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.

In this context the factual findings of the highest court in the State of Indiana are entitled to a presumption of correctness under 28 U.S.C. § 2254(d).

However, here the petitioner is attempting to raise two issues: one relates to the voluntariness or the absence of an attorney when a statement was made, and the second relates to a claim of ineffective assistance of counsel under the Sixth Amendment of the Constitution of the United States.

The presumptions under 28 U.S.C. § 2254 are different as to these issues. As to the voluntariness of a confession, the case of Miller v. Fenton, 474 U.S. 104, 106 S.Ct. 445, 88 L.Ed.2d 405 (1985), indicates that the question of a confession's voluntariness is "a legal inquiry requiring plenary federal review." The teaching seems to be that the full-blown presumption of § 2254(d) may not apply to confessions. See United States ex rel. Cole v. Lane, 793 F.2d 155 (7th Cir.1986).

With regard to § 2254(d) as to Sixth Amendment effective assistance of counsel issue, there appears to be some verbal variation in the approaches taken by various judges and panels of this Court of Appeals.¹

Following the court's mandates in Miller v. Fenton, it is necessary to examine the factual record in this case in some considerable detail. The Supreme Court of Indiana, speaking through Judge Givan, elaborately set forth the salient and necessary facts which are certainly consistent with those found in the record. On August 3, 1965, at approximately 11:00 o'clock P.M., this petitioner fired two shots from a pistol at John "Slow Kid" Palmer. Palmer died as the result of the wounds he then received. Petitioner fled the scene after firing the shots and had conversations with various acquaintances and was told that he should talk to the police. Shortly before 8:00 o'clock A.M. on August 4, 1965, the petitioner contacted Paul Stubblefield, a constable for the justice of the peace and petitioner later testified that "I gave myself up to Paul Stubblefield." Constable Stubblefield took the petitioner to the home of Gary Police Officer Clinton Savage where the petitioner informed Stubblefield and Savage of the events of the previous night. He was then transported to the Gary Police station by Savage where he stayed until about 10:00 o'clock A.M. when detectives from the East Chicago Police Department picked him up and transported him to East Chicago. At approximately 11:00 A.M., petitioner arrived at the East Chicago Police State and was questioned by Officers Ford and Jackson. When Office Ford first met the petitioner he advised the petitioner that he had the right to counsel. Petitioner responded that all he wanted to do was to get his conscience clear and to get this thing over with. Petitioner admitted that he had used a gun to shoot "Slow Kid" and the officers and petitioner went to the residence of a Mr. Jones in Gary to get the gun. Upon their return to the East Chicago Police Station, Officer Jackson again questioned petitioner and obtained a written statement from the petitioner this time. Officer Jackson stated that he advised the petitioner of his rights to an attorney and the petitioner stated that he wanted to get his conscience clear. A written statement was obtained at about 2:30 o'clock in the afternoon that day and such written statement was admitted and is found at page 331 of the transcript.

At about 7:00 o'clock P.M. on August 4, 1965, petitioner was again questioned by Officer Ford and was advised of his rights prior to this questioning. The petitioner then made a second written statement. He signed this statement after being advised of his right to counsel and said that he was going to clear his conscience and get the record straight. The second statement is in the record at page 332. All of the police officers have indicated the advice of the right to counsel prior to any questioning. The evidence in the record disclosed that this petitioner repeatedly refused assistance and stated that he wanted to clear his conscience. Both Officers Ford and Jackson testified to these facts. The petitioner later testified that he was never advised of his rights and that the police refused his request for an attorney and to make a telephone call. The petitioner was represented by an able and experienced criminal defense lawyer. Prior to trial, the petitioner's counsel filed a motion to suppress the statement obtained from the petitioner. A hearing was held thereon and the state trial judge overruled the motion to suppress and admitted both of the aforesaid written statements into evidence.

Petitioner here alleges that he asked for an attorney which was denied. At most, this is a conflict in the evidence regarding the request for an attorney between at least two police officers and the petitioner himself. The trier of fact in this case was an experienced state court judge who had to make the necessary credibility choice. He was in a far better position than this court to make such a choice and that choice should not be disturbed except on the clearest showing of a constitutional violation. See Wade v. Duckworth, 626 F.Supp. 1048, 1055 (N.D.Ind.1986). Judge Givan spoke on this very issue for the Supreme Court of Indiana:

Because of the severity of this case and because of the nature of the questions raised by the appellant in his brief, we have carefully examined not only the controlling cases in Indiana but also the recent cases decided by the Supreme Court of the United States, including Escobedo v. Illinois (1964), 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977, in an effort to determine whether or not the police authorities and the Trial Court afforded every constitutional protection outlined in these recent decisions. From the record of this case we hold that the appellant received full protection of his constitutional rights as guaranteed by both the Constitution of Indiana and the Constitution of the United States. It is noted that the trial in this case was held on May 23, 24, and 25 of 1966. The Supreme Court of the United States held in Johnson v. New Jersey (1966), 384 U.S. 719, 86 S.Ct. 1772, 16 L.Ed.2d 882, that the principles of law set forth in Miranda v. Arizona, supra, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), are available only to persons whose trial had not begun as of June 13, 1966. However, we note that the Supreme Court of the United States in its opinion in Miranda, beginning at page 447, 86 S.Ct. at p. 1629, made the following statement recognizing proper police functions:

Our decision is not intended to hamper the traditional function of police officers in investigating crime. See Escobedo v. State of Illinois, 378 U.S. 478, 492, 84 S.Ct. 1758, 1765, 12 L.Ed.2d 977, 986 (1964). When an individual is in custody on probable cause, the police may, of course, seek out evidence in the field to be used at trial against him. Such investigation may include inquiry of persons not under restraint. General on-the-scene questioning as to facts surrounding a crime or other general questioning of citizens in the fact-finding process is not affected by our holding. It is an act of responsible citizenship for individuals to give whatever information he may have to aid in law enforcement. In such situations the compelling atmosphere inherent in the process of in-custody interrogation is not necessarily present. In dealing with statements obtained through interrogation, we do not purport to find all confessions inadmissible. Confessions remain

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