Spinks v. McBride, No. 3:93cv0542 AS.

CourtUnited States District Courts. 7th Circuit. United States District Court of Northern District of Indiana
Writing for the CourtALLEN SHARP
Citation858 F. Supp. 865
Docket NumberNo. 3:93cv0542 AS.
Decision Date29 June 1994
PartiesRandy B. SPINKS, Petitioner, v. Daniel McBRIDE, and Indiana Attorney General, Respondents.

858 F. Supp. 865

Randy B. SPINKS, Petitioner,
v.
Daniel McBRIDE, and Indiana Attorney General, Respondents.

No. 3:93cv0542 AS.

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

June 29, 1994.


858 F. Supp. 866

Randy B. Spinks, pro se.

David L. Steiner, Office of Indiana Atty. Gen., Indianapolis, IN, for respondent.

MEMORANDUM AND ORDER

ALLEN SHARP, Chief Judge.

On August 3, 1993, pro se petitioner, Randy B. Spinks, an inmate at the Indiana State Prison, Michigan City, Indiana, filed a petition seeking relief under 28 U.S.C. § 2254. The return filed by the respondents on April 8, 1994, demonstrates the necessary compliance with Lewis v. Faulkner, 689 F.2d 100 (7th Cir.1982). This court granted the petitioner's motion for an extension of time setting a filing date of May 23, 1994 for the traverse. The petitioner has not filed a traverse. The state court record has been filed and examined pursuant to the mandates of Townsend v. Sain, 372 U.S. 293, 83 S.Ct. 745, 9 L.Ed.2d 770 (1963).

This petitioner was convicted in the Marion Superior Court, Criminal Division I, of the offense of murder by a jury. The Honorable John W. Tranberg imposed the sentence of 45 years. A direct appeal was taken to the Supreme Court of Indiana, and that court sustained the aforesaid conviction in Spinks v. State, 507 N.E.2d 567 (Ind.1987). Thereafter, on or about April 12, 1988, petitioner filed for post-conviction relief in the state trial court, claiming ineffective assistance of trial and appellate counsel. The Fourth District

858 F. Supp. 867
of the Court of Appeals of Indiana, speaking through Judge Stanley Miller, on or about July 22, 1991, affirmed the denial of post-conviction relief in an elaborate 14-page opinion in which Judges Conover and Garrard concurred. The opinion of the Court of Appeals entered on July 22, 1991, is attached hereto as Appendix "A" and incorporated herein. The Supreme Court of Indiana denied transfer on September 20, 1991

Four grounds are here raised for relief under 28 U.S.C. § 2254, as follows:

1. Whether the jury's verdict of guilty to murder must be reversed because it is not based on sufficient evidence and is contrary to the law and because throughout the trial Randy Spinks was denied his lawful presumption of innocence.
2. Whether the trial court committed reversible error in admitting a graphic and gruesome photograph, over objection, where the probative value of the photograph did not outweigh the inflammatory effect and where the photograph proved to be irrelevant to the issues presented at trial.
3. Whether Spinks was denied the effective assistance of trial counsel in violation of the Sixth and Fourteenth Amendments of the United States Constitution, and Article One, Sections Twelve and Thirteen of the Indiana Constitution.
4. Whether Spinks was denied the effective assistance of appellate counsel in violation of the Sixth and Fourteenth Amendments of the United States constitution, and Article One, Sections Twelve and Thirteen of the Indiana Constitution.

See Respondent's Return to Order to Show Cause.

Certainly, the facts as found by the highest court of Indiana, and as found by the Court of Appeals of Indiana may be presumed to be correct. Justice Stewart, speaking for the Supreme Court of the United States in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 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 belief 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.

Id. at 323, 99 S.Ct. at 2791. The Supreme Court in Jackson held:

We hold that in a challenge to a conviction brought under 28 U.S.C. § 2254—if the settled procedural prerequisites for such a claim have otherwise been satisfied—the applicant is entitled to habeas corpus relief if it is found that upon the record evidence adduced at trial no rational trier of fact could have found proof beyond a reasonable doubt.

Id. (footnote omitted). See also Sumner v. Mata, 449 U.S. 539, 101 S.Ct. 764, 66 L.Ed.2d 722 (1981); Dooley v. Duckworth, 832 F.2d 445 (7th Cir.1987), cert. denied, 485 U.S. 967, 108 S.Ct. 1239, 99 L.Ed.2d 438 (1988); United States ex rel. Haywood v. O'Leary, 827 F.2d 52 (7th Cir.1987); Bryan v. Warden, Indiana State Reformatory, 820 F.2d 217 (7th Cir.1987), cert. denied, 484 U.S. 867, 108 S.Ct. 190, 98 L.Ed.2d 142 (1987); Shepard v. Lane, 818 F.2d 615 (7th Cir.), cert. denied, 484 U.S. 929, 108 S.Ct. 296, 98 L.Ed.2d 256 (1987); and Perri v. Director, Department of Corrections, 817 F.2d 448 (7th Cir.), cert. denied, 484 U.S. 843, 108 S.Ct. 135, 98 L.Ed.2d 92 (1987).

In Spinks v. State, supra, the Supreme Court of Indiana, speaking through Justice DeBruler, examined an identical claim based

858 F. Supp. 868
on the sufficiency of the evidence and explained
These are the facts from the record which tend to support the determination of guilt: On November 17, 1980, Debra Terhune, Michelle Shift (or Schiff), Karen Koomler and Leander Billiot were present at the home of Randy Spinks (appellant) and Jessica Winters. Debbie Terhune and Jessica Winters engaged in a fight and Randy Spinks intervened by kicking Debbie Terhune in the face. When Terhune attempted to leave, Spinks caught her, beat her, handcuffed her, and forceably (sic) took her into the bedroom. The confrontation between the two continued and Spinks stated "you don't think I'll shoot you, do you", then entered the living room, picked up a gun, returned to the bedroom and a shot was fired Jessica Winters came running out of the bedroom and said he shot her. Leander Billiot instructed Karen Koomler to get her things and Spinks requested Billiot dispose of the gun. Billiot and Koomler departed and threw the gun in a field and Jessica Winters called the police. Billings and Koomler later contacted the Anderson Police Department and reported witnessing a shooting and the Anderson Police Department put them in touch with Indianapolis police. Billiot and Koomler assisted in locating the gun and testified at trial against Spinks. Terhune died on December 12, 1980, from complications resulting from the gunshot.

Id.

Here, this court notes that under the formulation of Jackson, the opinion of the Supreme Court of Indiana and the opinion of the Court of Appeals of Indiana make it clear that there is more than enough evidence to establish the guilt of this defendant. Sufficiency of evidence was specifically addressed by the Supreme Court of Indiana and not found wanting under state law. Neither is it wanting under the Fourteenth Amendment of the Constitution of the United States. A review of the record in the light most favorable to the prosecution convinces the court that a rational trier of fact could readily have found the petitioner guilty beyond a reasonable doubt of murder.

A petitioner under 28 U.S.C. § 2254 has a very difficult time in making a constitutional claim on the basis of the admissibility of evidence. On this issue, the Supreme Court of Indiana explained:

Appellant urges the trial court erred by permitting introduction into evidence of a photograph of Debra Terhune. The photograph was taken more than a month after the shooting and revealed surgical scars and other evidence of medical procedures in addition to the gunshot wound. Appellant's contention is that the photograph was not relevant and only served to inflame the jury.
"To be admitted, it must first be established that the photographs are a true and accurate representation of the things they are intended to portray. Johnson v. State (1972), 258 Ind. 648, 283 N.E.2d 532. Their relevancy is determined by whether a witness would be permitted to describe verbally that which the photograph depicts. Murphy v. State (1977), 267 Ind. 184, 369 N.E.2d 411. Although the photographs may depict gory, revolting or inflammatory details of the crime when presented to the jury, this is not a sufficient basis for excluding such evidence. Sotelo v. State (1976), 264 Ind. 298, 342 N.E.2d 844; Meredith v. State (1966) 247 Ind. 233, 214 N.E.2d 385." Wilson v. State (1978), 268 Ind. 112, 374 N.E.2d 45.
The photograph served to clarify testimony concerning the cause of death and therefore was relevant. The fact that it was an autopsy photograph and taken well after the shooting does not negate its relevancy. The surgical scars were a result of attempts to save Terhune's life after she was hot and there was testimony concerning these measures in order to correlate the gunshot with Terhune's death.

Id.

This court notes that it is possible to make a fundamental fairness argument contingent upon the due process clause if the error of state law is egregious in nature. This court is quite familiar with those rare cases where it does make a difference, such as Dudley v. Duckworth, 854 F.2d 967 (7th Cir.1988), cert. denied, 490 U.S. 1011, 109 S.Ct. 1655, 104

858 F. Supp. 869
L.Ed.2d 169 (1989). It is not for this court to re-weigh the evidence or re-determine questions of weight or credibility. This court cannot say that the photograph of...

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3 practice notes
  • Stephenson v. State, No. 87S00-0106-PD-285.
    • United States
    • Indiana Supreme Court of Indiana
    • April 26, 2007
    ...overruled the objection, it would have committed error, and the error would have had a prejudicial effect. See, e.g., Spinks v. McBride, 858 F.Supp. 865, 877 (N.D.Ind.1994) ("In order to establish ineffective assistance of counsel for failure to object, it must be shown that the trial court......
  • U.S. v. Franklin, Criminal No. 99-238-01.
    • United States
    • United States District Courts. 3th Circuit. United States District Court (Eastern District of Pennsylvania)
    • April 26, 2002
    ...with which Defendant finds fault were not made by Mr. Clark but by his (ultimately successful) opponent. 5. See also, Spinks v. McBride, 858 F.Supp. 865 (N.D.Ind.1994) (finding no actual conflict where counsel was seeking employment as a deputy prosecutor); Costanzo v. United States, 758 F.......
  • Kirkland v. Com., No. 1998-SC-0934-MR.
    • United States
    • United States State Supreme Court (Kentucky)
    • May 24, 2001
    ...that a defendant must show an actual conflict of interest adversely affected the performance of his lawyer. See also, Spinks v. McBride, 858 F.Supp. 865, (N.D.Ind.1994). Similar decisions may be found in State v. Webb, 790 P.2d 65 (Utah Ct.App.1990); Averhart v. State, 470 N.E.2d 666, (Ind.......
3 cases
  • Stephenson v. State, No. 87S00-0106-PD-285.
    • United States
    • Indiana Supreme Court of Indiana
    • April 26, 2007
    ...overruled the objection, it would have committed error, and the error would have had a prejudicial effect. See, e.g., Spinks v. McBride, 858 F.Supp. 865, 877 (N.D.Ind.1994) ("In order to establish ineffective assistance of counsel for failure to object, it must be shown that the trial court......
  • U.S. v. Franklin, Criminal No. 99-238-01.
    • United States
    • United States District Courts. 3th Circuit. United States District Court (Eastern District of Pennsylvania)
    • April 26, 2002
    ...with which Defendant finds fault were not made by Mr. Clark but by his (ultimately successful) opponent. 5. See also, Spinks v. McBride, 858 F.Supp. 865 (N.D.Ind.1994) (finding no actual conflict where counsel was seeking employment as a deputy prosecutor); Costanzo v. United States, 758 F.......
  • Kirkland v. Com., No. 1998-SC-0934-MR.
    • United States
    • United States State Supreme Court (Kentucky)
    • May 24, 2001
    ...that a defendant must show an actual conflict of interest adversely affected the performance of his lawyer. See also, Spinks v. McBride, 858 F.Supp. 865, (N.D.Ind.1994). Similar decisions may be found in State v. Webb, 790 P.2d 65 (Utah Ct.App.1990); Averhart v. State, 470 N.E.2d 666, (Ind.......

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