Thornton v. Duckworth

• Decision Date: 24 June 1986
• Docket Number: No. S 85-621.,S 85-621.
• Parties: Kenneth THORNTON, Petitioner, v. Jack R. DUCKWORTH, Respondent.
• Court: U.S. District Court — Northern District of Indiana

656 F. Supp. 700

Kenneth THORNTON, Petitioner, v. Jack R. DUCKWORTH, Respondent.

No. S 85-621.

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

June 24, 1986.

Kenneth Thornton, pro se.

Sabra A. Weliever, Deputy Atty. Gen., Indianapolis, Ind., for respondent.

MEMORANDUM AND OPINION^*

ALLEN SHARP, Chief Judge.

I.

The petitioner, Kenneth Thornton, filed this petition under 28 U.S.C. § 2254 on October 29, 1985 alleging that he is now an inmate at the Indiana State Prison in Michigan City, Indiana, having been convicted in the Marion Criminal Court, Division II, of first degree murder on September 21, 1972. That conviction was affirmed by the Supreme Court of Indiana in a unanimous opinion authored by Justice DeBruler and found at Martin v. State, 262 Ind. 232, 314 N.E.2d 60 (1974), opinion on rehearing, 262 Ind. 232, 317 N.E.2d 430 (1974), cert. denied, 420 U.S. 911, 95 S.Ct. 833, 42 L.Ed.2d 841 (1975). The findings of fact referenced in the opinions of the Supreme Court of Indiana are entitled to a presumption of correctness under the authority of Sumner v. Mata, 449 U.S. 539, 101 S.Ct. 764, 66 L.Ed.2d 722 (1981).

The state court record has been filed pursuant to Townsend v. Sain, 372 U.S. 293, 83 S.Ct. 745, 9 L.Ed.2d 770 (1963) and carefully examined here. There has been full and complete compliance with the mandates of Lewis v. Faulkner, 689 F.2d 100 (7th Cir.1982). Kenneth Thornton has also been granted the services of a lay legal assistant in the person of Joseph M. Kalady who is an experienced lay advocate who regularly assists prisoners appearing pro se in cases before this court.

There are a number of issues raised which the court will deal with fully.

This petitioner, Kenneth Thornton, was tried before a jury and Judge Saul I. Rabb in the Marion Criminal Court, Division II, for first degree murder along with a co-defendant, named Marina Martin. Both were convicted by a jury in a joint trial and both were sentenced by Judge Rabb to life imprisonment and as indicated above the sentences both were affirmed by the Supreme Court of Indiana 12 years ago.

II.

Justice DeBruler, speaking for that Court in its initial opinion laid out the basic facts with reference to the offense itself as follows:

The evidence introduced at this trial showed that John Mays was the operator of a Sunoco Service Station located on South Highway 31 in Marion County, Indiana. On March 18, 1982, at about 3 o'clock in the afternoon Mays, dressed in a Sunoco Oil Company work uniform, was working the back bay area of the station when his wife came in from the front office and asked him if he wanted anything from the store. He replied in the negative and his wife went back to the front office. Several seconds later May remembered he wanted cigarettes and walked out to the office to tell his wife. Upon entering the office Mays saw his wife running outside and he immediately followed her asking what was the matter. Mrs. Mays pointed toward a car in the station parking area and said, "They've got our money". Mays told his wife to stay where she was and he went toward the car, which he described as a 1972 red Nova Chevrolet with a black top.

As he approached the car a female, identified by Mays as appellant Martin, was sitting on the passenger's side of the car and a male, whom Mays identified as appellant Thornton, was in the process of entering the driver's seat. Mays grabbed Thornton by the shoulders and, as he did so, Thornton yelled, "Get the gun." Martin reached down to the floor of the car and pointed a .38 caliber revolver at Mays. Mays released Thornton and started to turn away from the car when he was shot in the stomach by Martin. As he fell to the ground by the car Mays heard his wife, "My God you've shot my husband." Five to fifteen seconds later he heard another shot and saw his wife fall to the ground. She was pronounced dead at the Marion County General Hospital as a result of a single gunshot wound in the chest.

Two young employees at a restaurant located adjacent to the station testified that they heard two "popping sounds" from the Sunoco station and saw Mrs. Mays fall to the pavement. A black over red Chevrolet then left the station proceeding South on Highway 31 at a high rate of speed. Both boys testified that they wrote down the license number of the car, but one had forgotten it by the time of the trial. The other boy however, was able to testify to the license number.

At approximately 3:30 that same afternoon an Indiana State Policeman stopped a 1972 black over red Chevrolet Nova with the identical license plate at a point on Highway 31 about twenty miles south of the Sunoco station. Appellants Thornton and Martin were the only occupants of the car. Subsequent searches of appellants shows that Martin had $190 in cash in her underpants and Thornton had $88 in his pockets. Mays testified that there was approximately $220 missing from the cashbox kept in the front office of the gas station.

Martin v. State, 314 N.E.2d at 64.

On August 1, 1972 both Martin and Thornton appeared in open court and were informed that their privately retained counsel had withdrawn. Judge Rabb then appointed two lawyers to represent them, stating: "I want two lawyers to represent these people, together or separately, whichever way they would wish." Thornton now claims that this was error in five particulars:

1. Neither defendant was advised of the dangers of dual representation or potential conflicts of interest;

2. There was conflict between the lawyers as to challenges to the jury;

3. Joint representation is a per se violation of the constitutional guarantee of effective assistance of counsel;

4. Counsel could not plea bargain the case without conflicting the interests of Martin; and

5. Neither defendant could testify without conflicting the interests of the other.

Apparently both Martin and Thornton who appear to have been represented in the Supreme Court of Indiana by two separate counsel, namely, Palmer K. Ward and David F. McNanar, made the usual argument that joint representation is a per se violation of the Sixth Amendment guarantee of effective assistance of counsel.

At this point it is desirable if not necessary to review this court's experience with this issue as reflected in published opinions. In Ross v. Heyne, 483 F.Supp. 798 (1980) this court in Part II beginning at page 803 dealt rather gently with the appointment of one defense counsel to represent more than one defendant when such had occurred well before the advent of Holloway v. Arkansas, 435 U.S. 475, 98 S.Ct. 1173, 55 L.Ed.2d 426 (1978). This court cited and collected the cases then existing in this circuit, two of which this court either then had or later had a judicial connection with. See U.S. v. Mandell, 525 F.2d 671 (7th Cir.1975); U.S. v. Gaines, 529 F.2d 1038 (7th Cir.1976); U.S. v. Jeffers, 520 F.2d 1256 (7th Cir.1975); U.S. v. Mavrick, 601 F.2d 921 (7th Cir.1979); and U.S. ex rel McLindon v. Warden, 575 F.2d 108 (7th Cir.1978).

When Ross v. Heyne reached the Court of Appeals Judge Bauer at 638 F.2d 979, 982 (7th Cir.1980) found an actual conflict of interest and prejudice flowing therefrom and affirmed on that basis, as well as another basis not here relevant.

In Dean v. Duckworth, 559 F.Supp. 1331 (1983) this court found ineffective assistance of counsel under Cuyler v. Sullivan, 446 U.S. 335, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980) and granted a writ under 28 U.S.C. § 2254. This decision was reversed at 748 F.2d 367 (7th Cir.1984) and the basic holding of the Court of Appeals is found at page 370 when it stated:

Nowhere in our review of the record have we discovered any characteristics of a conflict of interest. We found no action or inaction by defense counsel that was favorable to one defendant at the expense of the other. Cuyler v. Sullivan, 446 U.S. 335, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980). All of the evidence presented by the prosecution was offered against both petitioners. There was nothing presented that would implicate one more than the other thereby putting defense counsel into the position of having to choose the interest of one over the other. We reject the conclusion inherent in the District Court's opinion that because petitioners did not have identical defenses they necessarily had conflicting defenses. In short, we find no evidence of any actual conflict of interest or any adverse effect upon trial counsel's performance.

This circuit has clearly rejected that joint representation by one lawyer of more than one defendant charged together in the same criminal case is per se violation of the Sixth Amendment. See U.S. v. Cirrincione, 780 F.2d 620 (7th Cir.1985), Part II beginning at page 624. See also, U.S. v. Marrera, 768 F.2d 201 (7th Cir.1985). However, the factual record in this case simply does not support that conclusion in any event. This court chooses not to bottom any decision on this subject on a Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977) waiver.

In all fairness to the late Judge Rabb it should be emphasized that the emergence of the standards announced in Cuyler and Holloway followed by a good number of years his action in this case. The simple facts of the matter are that Judge Rabb appointed two lawyers to represent two defendants and this court interprets his expressed intent as advising those lawyers that they could work together or separately according to their own professional decisions. Mr. Ward was a renowned criminal defense lawyer in Indianapolis, Indiana and Mr. McNamar was and is considered to be a highly competent and experienced trial lawyer and a member of a law firm that included a former Attorney General of the State of Indiana. These defendants had previously been represented by the same privately retained counsel. It was in that factual context that Judge Rabb spoke also. In this regard Justice DeBruler speaking for the Supreme Court stated:

Appellants'

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