Thomas v. State of Ind.

• Decision Date: 15 August 1990
• Docket Number: No. 89-3040,89-3040
• Citation: 910 F.2d 1413
• Parties: Leroy THOMAS, Jr., Petitioner-Appellee, v. STATE OF INDIANA, et al., Respondents-Appellants.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1413

910 F.2d 1413

Leroy THOMAS, Jr., Petitioner-Appellee, v. STATE OF INDIANA, et al., Respondents-Appellants.

No. 89-3040.

United States Court of Appeals, Seventh Circuit.

Argued May 9, 1990.

Decided Aug. 15, 1990.

Kenneth N. Flaxman, Chicago, Ill., Leroy Thomas, Jr., Westville Correctional Center, Westville, Ind., for petitioner-appellee.

Linley E. Pearson, Atty. Gen., Wayne E. Uhl, Deputy Atty. Gen., Indianapolis, Ind., for respondents-appellants.

Before POSNER and FLAUM, Circuit Judges, and WILL, Senior District Judge. ^*

POSNER, Circuit Judge.

Leroy Thomas, Jr., was convicted in an Indiana state court in 1979 of murder, and was sentenced to prison for thirty years. After exhausting his state remedies in Thomas v. State, 420 N.E.2d 1216 (Ind.1981), he brought this action for federal habeas corpus, and prevailed in the district court, which ordered the state to either release or retry him.

That Thomas committed the homicide has never been questioned. His only defense was insanity, which he had to prove by a preponderance of the evidence, Ind.Code Sec. 35-41-4-1, and of which there was, indeed, evidence aplenty. He had been diagnosed as a paranoid schizophrenic in 1971 and had been hospitalized for this condition in 1974, 1976, and 1977; the homicide was in 1978. His family testified to many episodes of bizarre behavior on his part. Once, after complaining to his mother that he had been unable to hire a lawyer to sue his family, he shot her three times. Neither party put on a psychiatric witness but the court appointed two psychiatrists who between them had conducted more than 800 court-directed sanity examinations. They testified that Thomas had indeed been insane at the time of the homicide. One testified that Thomas would have behaved the way he did even if a police officer had been present. The other testified that Thomas had been "legally insane" at the time. Cross-examination of the psychiatrists brought out two points. First, one of the psychiatrists had not actually interviewed Thomas (because Thomas had refused to talk to him), but had based his diagnosis on observation of Thomas, discussion with his family, and study of his medical records. Second, the other psychiatrist had not inquired into Thomas's behavior the day before and the day after the homicide, even though the psychiatrist conceded the relevance of Thomas's behavior at those times to a diagnosis of his mental condition when he committed the homicide.

Besides cross-examining the psychiatrists, the prosecutor put in evidence about Thomas's manner and statements at the time of his arrest, which had taken place outside his apartment shortly after the killing. Thomas had refused to come out of the apartment until the press arrived, had asked for a lawyer, and had not seemed crazy. All this was before he was given his Miranda warnings, and raises no problems. But the police were also allowed to testify that Thomas said nothing after being given the warnings; this evidence was allowed in "for the purpose of showing his mental attitude to demonstrate that he was reserved and quiet and not in a manic state." Thomas v. State, supra, 420 N.E.2d at 1220. The admissibility of this testimony is the issue presented by the petition for habeas corpus.

Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976), holds that it is a denial of due process to use a defendant's refusal to talk or request for an attorney, after being given the Miranda warnings, in evidence against him, even if just to impeach his testimony. Wainwright v. Greenfield, 474 U.S. 284, 106 S.Ct. 634, 88 L.Ed.2d 623 (1986), adds--even just to rebut his defense of insanity. How mere silence--all we have in this case (there was more in Greenfield, as we shall see)--can be evidence of sanity puzzles us. Insane people frequently are withdrawn and uncommunicative; raving is not the only style of maniacs. A manic depressive has manic phases; a paranoid schizophrenic need not, and need not be the less dangerous for not having them. So far as we know, Thomas was quiet and withdrawn after he shot his mother, yet there is no suggestion that that was the deed of a sane man. But Thomas's silence after being given the Miranda warnings, argued to show rationality, was, along with his coherent requests at the time of his arrest and his outwardly calm appearance, the only evidence that the government introduced to prove his sanity. All the psychiatric evidence indicated insanity, though how strongly was a question for the jury. So we cannot dismiss as harmless the error in admitting the evidence of his silence.

At oral argument we raised the question whether Greenfield, which was decided after Thomas was tried, announced a new rule within the meaning of Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989), and of the cases decided by the Supreme Court this past term following and refining that decision. Butler v. McKellar, --- U.S. ----, 110 S.Ct. 1212, 108 L.Ed.2d 347 (1990); Saffle v. Parks, --- U.S. ----, 110 S.Ct. 1257, 108 L.Ed.2d 415 (1990); Sawyer v. Smith, --- U.S. ----, 110 S.Ct. 2822, 111 L.Ed.2d 193 (1990). These decisions hold that, with exceptions unnecessary to discuss in this case, a new rule is not to be applied retroactively in a habeas corpus proceeding--in other words a rule may not be invoked by a defendant whose conviction became final before the rule was declared. By so holding, these decisions may have overruled our decision in Sulie v. Duckworth, 864 F.2d 1348 (7th Cir.1988), which held that Greenfield was to be applied retroactively.

Before getting deeper into this thicket, we remark the state's waiver of the issue of retroactivity. Not only did the state fail to raise the issue in the only brief it filed with us (its opening brief, as appellant), or to cite Teague, although Teague had been decided before the brief was filed; the state expressly conceded, on the authority of Sulie v. Duckworth, the retroactive applicability of Greenfield. It has made no effort to withdraw its waiver by a subsequent filing, or to draw our attention to the Supreme Court's decisions repeating and amplifying the holding in Teague, although two of those decisions were decided before the argument in this case. Teague and the cases following it were first mentioned at the argument--and by the judges, not by the state's counsel. True, when we raised Teague, the state's lawyer embraced it. But to inject a new issue into a case at the oral argument of the appeal ordinarily is much too late, and this regardless of whether the delinquent is a prisoner or is the state, as we held in another habeas corpus case recently, Wilson v. O'Leary, 895 F.2d 378, 384 (7th Cir.1990); see also Egert v. Connecticut General Life Ins. Co., 900 F.2d 1032, 1035 (7th Cir.1990); Gomez v. Greer, 896 F.2d 252, 254 (7th Cir.1990); 7th Cir.R. 28(f) (1990); cf. Alerte v. McGinnis, 898 F.2d 69 (7th Cir.1990). And unlike those cases, here the state expressly waived the point in its opening brief rather than merely failed to raise it, and did not bother to file a reply brief. The question of the retroactive application of Greenfield in light of Teague and the cases following Teague is a difficult one, and by not raising it in a proper and timely manner the state denied its adversary an opportunity to address the question and to argue that we should apply Greenfield after all.

Granted, the rule that a waived issue will be disregarded, like most legal rules, is a generalization rather than a universal truth; it has exceptions. A question of subject-matter jurisdiction cannot be waived until the case is completely over (that is, until all appellate remedies have been exhausted). United States v. Stillwell, 900 F.2d 1104, 1110 n. 2 (7th Cir.1990). And delicate questions of comity can be raised on the court's own initiative, as in Younger v. Harris, 401 U.S. 37, 40, 91 S.Ct. 746, 748, 27 L.Ed.2d 669 (1971), and Schlesinger v. Councilman, 420 U.S. 738, 743, 95 S.Ct. 1300, 1305, 43 L.Ed.2d 591 (1975). Of particular pertinence here, failure to exhaust state remedies as a preliminary to asking for federal habeas corpus may be raised by the court on its own initiative even though such exhaustion is not a jurisdictional prerequisite. Granberry v. Greer, 481 U.S. 129, 134, 107 S.Ct. 1671, 1677, 95 L.Ed.2d 119 (1987); Burgin v. Broglin, 900 F.2d 990, 997 (7th Cir.1990); Del Raine v. Carlson, 826 F.2d 698, 703 (7th Cir.1987). The issue of retroactive application of new constitutional rules in federal habeas corpus cases brought by state prisoners is an issue of the same character. In Teague itself, the state had not argued against retroactive application of the rule for which Teague was contending, leading us to remark that "a court may consider retroactivity questions that the parties did not present." Hanrahan v. Greer, 896 F.2d 241, 245 (7th Cir.1990). In like vein the Supreme Court remarked recently that "although the Teague rule is grounded in important considerations of federal-state relations, we think it is not 'jurisdictional' in the sense that this Court, despite a limited grant of certiorari, must raise and decide the issue sua sponte." Collins v. Youngblood, --- U.S. ----, 110 S.Ct. 2715, 2718, 111 L.Ed.2d 30 (1990) (emphasis in original). This would seem to scotch earlier suggestions that the rule of Teague is jurisdictional, Hopkinson v. Shillinger, 888 F.2d 1286, 1288 (10th Cir.1989) (en banc); ...