Tyson v. Trigg

• Decision Date: 06 September 1994
• Docket Number: No. IP 94-591 C.,IP 94-591 C.
• Citation: 883 F. Supp. 1213
• Parties: Michael G. TYSON, Petitioner, v. Clarence TRIGG, Attorney General of Indiana, Respondents.
• Court: U.S. District Court — Southern District of Indiana

883 F. Supp. 1213

Michael G. TYSON, Petitioner, v. Clarence TRIGG, Attorney General of Indiana, Respondents.

No. IP 94-591 C.

United States District Court, S.D. Indiana, Indianapolis Division.

September 6, 1994.

Alan Dershowitz, Cambridge, MA, Nathan Z. Dershowitz, New York City, James H. Voyles, Indianapolis, IN, for plaintiff.

Matthew Gutwein and Arend Abel, Office of the Atty. Gen., Indianapolis, IN, for defendant.

ENTRY DENYING PETITION FOR WRIT OF HABEAS CORPUS AND DIRECTING ENTRY OF JUDGMENT

BARKER, Chief Judge.

This cause is before the court on the petition of Michael G. Tyson for a writ of habeas corpus, on the respondents' return to order to show cause and on the petitioner's reply. The court also has before it the expanded record of the petitioner's trial in the Marion County Superior Court, Criminal Division, and the parties' materials submitted in response to paragraph 3 of the Order of June 30, 1994.

Whereupon the court, having read and examined such petition, return, reply and record, and having also considered the parties' arguments relative to the claims asserted herein, now makes the following findings and determinations.

INTRODUCTION

Procedural Background

Tyson was indicted in Marion County on September 9, 1991. He was charged with two counts of criminal deviate conduct and one count each of rape and confinement.

A jury trial was conducted between January 27, 1992 and February 10, 1992. The confinement charge was dismissed during trial. The jury returned a verdict of guilty to rape, a violation of Ind.Code 35-42-4-1(1) (1992 Supp.), and to each of the counts of criminal deviate conduct, a violation of Ind. Code 35-42-4-2(1) (1988). Tyson was sentenced on March 26, 1992 to ten (10) years, with four (4) years of that sentence being suspended.

Tyson's conviction was affirmed on appeal in Tyson v. State, 619 N.E.2d 276 (Ind.App. 1993), cert. denied, ___ U.S. ___, 114 S.Ct. 1216, 127 L.Ed.2d 562 (1994). Post-conviction actions were filed (and apparently remain pending) but the issues raised therein are not pertinent to the present petition or its disposition.¹

The Evidence

Tyson does not challenge the sufficiency of the evidence in this case. The court is entitled to proceed, therefore, viewing the evidence that is most favorable to the State of Indiana. Willard v. Pearson, 823 F.2d 1141, 1150 (7th Cir.1987) (a federal habeas court must assume that the jury resolved all evidentiary conflicts and found all reasonable inferences in the state's favor).

The expanded record in this action fairly supports the following summary of the evidence. Tyson and the victim, Desiree Washington, met briefly on the morning of July 18, 1991, while both were in Indianapolis for Black Expo. At around 1:30 a.m. the next morning, July 19, Tyson telephoned the victim from his limousine and invited her to go around Indianapolis with him. The victim initially refused, explaining that it was too late and that she was already in bed. But in response to Tyson's persistence and assurances that he only wanted to talk and that it would be her only opportunity to see him because he was leaving Indianapolis in the morning, Washington agreed. Washington asked her roommate, Pasha Oliver, to accompany her, but Oliver declined. Washington got dressed and grabbed her camera, intending to take photographs of Tyson — to give to her father — as well as the places she and Tyson might go. She then joined him in the limousine.

Tyson's limousine proceeded directly to the hotel where he was staying. Tyson told Washington that he needed to retrieve something from his room, so Washington accompanied him there. Tyson and Washington talked in the room for about fifteen minutes.

When the conversation turned from pleasantries to a sexual comment by Tyson, Washington became nervous and went to the rest-room. Upon exiting, Washington saw Tyson sitting on his bed, dressed only in his underwear. The bedspread had been drawn back. She announced that it was time for her to leave. He instructed her to come toward him, grabbed her, told her to not fight, pulled her toward him, stuck his tongue in her mouth and repeated the admonition not to fight him. She resisted, but to no avail. He placed her on the bed, removed her outer jacket and then the rest of her clothing. She was restrained by his arms while these events were taking place. She continued to object verbally to what was happening but Tyson responded with instructions not to fight him. He placed his fingers in her vagina and she pleaded with him to stop. He laughed, lifted her up and licked her genital area. He took out his penis and inserted it in her vagina. She became even more upset, stating that she did not want to become pregnant, and started crying. She agreed to be "on top," thinking she could get away. When she tried, however, he repeated his instructions not to fight him and rolled over on top of her. He continued the intercourse but removed his penis before ejaculating.

Washington gathered up her clothes, put them on and hastened out the door, down to the lobby and out to the limousine. The driver agreed to drive her to her hotel, where she went to her room, informed her roommates of what had occurred, showered and went to bed. The next day (July 19th) she continued her participation in the beauty pageant activities as a contestant. After her parents arrived from out of town later that evening, she notified the authorities. A medical examination disclosed two (2) abrasions near the opening of Washington's vagina which were consistent with an injury from non-consensual intercourse.

The Claims

The four claims presented here mirror those raised in Tyson's direct appeal. They focus on the manner in which the assignment of the trial judge to the case occurred, the exclusion of certain evidence, the application of Indiana's Rape Shield Statute and the trial judge's denial of a requested instruction relating to a supposed theory of defense.

Statutory Basis for Relief

"The principle that collateral review is different from direct review resounds throughout our habeas jurisprudence." Brecht v. Abrahamson, ___ U.S. ___, ___, 113 S.Ct. 1710, 1719, 123 L.Ed.2d 353 (1993). Tyson is entitled to relief in this action only if he demonstrates "he is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a).

There is a plethora of special procedural rules which surround the limited nature of the review in collateral challenges to state convictions. Justice O'Connor identified these:

Habeas corpus has its own peculiar set of hurdles a petitioner must clear before his claim is properly presented to the district court. The petitioner must, in general, exhaust available state remedies, § 2254(b), avoid procedural default, Coleman v. Thompson, 501 U.S. 722, 111 S.Ct. 2546 115 L.Ed.2d 640 (1991), not abuse the writ, McCleskey v. Zant, 499 U.S. 467, 111 S.Ct. 1454 113 L.Ed.2d 517 (1991), and not seek retroactive application of a new rule of law, Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060 103 L.Ed.2d 334 (1989).

Keeney v. Tamayo-Reyes, 504 U.S. 1, 13-14, 112 S.Ct. 1715, 1722, 118 L.Ed.2d 318 (1992) (O'Connor, J., dissenting). There is little doubt that these hurdles, whether of legislative or judicial origin, are premised on the fact that

the Great Writ imposes special costs on our federal system. The States possess primary authority for defining and enforcing the criminal law. In criminal trials they also hold the initial responsibility for vindicating constitutional rights. Federal intrusions into state criminal trials frustrate both the States' sovereign power to punish offenders and their good-faith attempts to honor constitutional rights.

Engle v. Isaac, 456 U.S. 107, 128, 102 S.Ct. 1558, 1572, 71 L.Ed.2d 783 (1982).

ANALYSIS

1. Judge Selection Procedure

Tyson's first claim is that he is entitled to relief because he was denied "a fair trial before an impartial judge ... due to the prosecutor's selection of the trial judge to preside over his case."

At the time Tyson was charged, existing procedures permitted the Marion County Prosecutor to select which of several judges would be assigned to a case. This was done by filing a motion to impanel a grand jury with a particular judge. If an indictment was returned, that judge would then be assigned to the case. Since the time of this trial, this procedure has been held to be improper and has been changed. Tyson, 619 N.E.2d at 300.

The key to making a proper assessment of this claim is an understanding of the limited role of § 2254(a). Specifically, states are constitutionally free to adopt virtually any sort of procedures for the assignment of cases so long as what they adopt does not result in the selection of a biased judge. In re Murchison, 349 U.S. 133, 136, 75 S.Ct. 623, 625, 99 L.Ed. 942 (1955); Del Vecchio v. Illinois Department of Corrections, 31 F.3d 1363 (7th Cir.1994) (en banc).

A judge is, by law, presumed to be impartial, United States v. Baskes, 687 F.2d 165, 170 (7th Cir.1981), a presumption as effective in state courts as it is in federal courts. Del Vecchio. Tyson's claimed due process violation on this basis, therefore, does not withstand scrutiny. Tyson has not attempted to establish that the assigned trial judge was anything other than impartial. In fact, he holds to the contrary. Tyson's counsel stated in open court on November 27, 1991, after a hearing on the issue of the judicial selection process:

Your Honor, I'd like to address very briefly the brief record that we've just established and note for the Court that we certainly have no basis to suggest that Your Honor harbors any kind of bias in this case.

Thereafter, defense counsel acknowledged that he did not know what motivated the prosecutor's decision to have the grand jury impaneled under Judge Gifford's supervision and did not intend to "suggest ill motives." Tyson also maintains, on page 4 of his...