Williams v. Duckworth, S 82-58.

• Decision Date: 10 May 1983
• Docket Number: No. S 82-58.,S 82-58.
• Citation: 562 F. Supp. 506
• Parties: Larry V. WILLIAMS, Petitioner, v. Jack R. DUCKWORTH, Warden, and Linley E. Pearson, Attorney General of the State of Indiana, Respondents.
• Court: U.S. District Court — Northern District of Indiana

562 F. Supp. 506

Larry V. WILLIAMS, Petitioner, v. Jack R. DUCKWORTH, Warden, and Linley E. Pearson, Attorney General of the State of Indiana, Respondents.

No. S 82-58.

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

May 10, 1983.

Jere L. Humphrey, Plymouth, Ind., for petitioner.

Linley E. Pearson, Atty. Gen. of Ind., Indianapolis, Ind., for respondents.

MEMORANDUM AND ORDER

SHARP, Chief Judge.

Petitioner, Larry Williams, is a state prisoner confined at the Indiana State Prison, Michigan City, Indiana. Respondent, Jack R. Duckworth, is the warden of the prison, and has custody of Williams pursuant to judgment of conviction by the Fulton Circuit Court, Fulton County, Indiana. Respondent, Linley E. Pearson, is the Attorney General of the State of Indiana, who is not alleged to have custody of petitioner. Relief is sought under 28 U.S.C. § 2254.

Williams was convicted by jury of murder, conspiracy, and armed robbery and was determined to be a habitual offender. He was sentenced to combined sentences of 130 years. A direct appeal was taken to the Supreme Court of Indiana from this conviction. Both issues alleged herein were included in and ruled on in said direct appeal. The Supreme Court of Indiana affirmed the convictions in a published opinion. Williams v. State, Ind., 426 N.E.2d 662 (1981), and vacated the sentence for armed robbery for reasons unrelated to issues raised herein.

Pursuant to 28 U.S.C. § 2254, petitioner has filed a petition for a writ of habeas corpus, raising the following issues: whether the conviction violates his rights guaranteed by the Fifth and Fourteenth Amendments because of a prosecutorial reference to his failure to testify at trial, and whether his Fourteenth Amendment due process rights were violated due to introduction of certain "extraneous and prejudicial" testimony which, when added to the other alleged impropriety had a cumulative effect such as to deny him a fair trial.

The state court record has been filed in accordance with 28 U.S.C. § 2254(d), and Townsend v. Sain, 372 U.S. 293, 83 S.Ct. 745, 9 L.Ed.2d 770 (1963), and has been carefully reviewed.

A.

In final summation, the prosecutor stated as follows:

It's true, DeWayne Schuh, Larry Perkins and George Redmon testified, agreed to testify pursuant to plea agreements. They all said they'd agree to testify, and to testify means to sit on the stand under oath. Nobody agreed to make up a story. There's no evidence of that. There's really nothing — their stories are the only stories you have in basis. They became our witnesses by their own doing and by the doing of Larry Williams, when they agreed to commit the crime. They were the people at the scene and they're the ones best to know what happened. They were there. They are his friends and their story is basically the only story.

MR. HUMPHREY: May we approach the bench, Your Honor.

At this point, the defense objected to the comment about this being "basically the only story", and moved for a mistrial, but did not ask that the court admonish the jury as to the said remarks.

In its written opinion, the Supreme Court of Indiana found from the record that Williams was the only other person placed at the scene who did not testify; the only one who could have a contradictory "story" was appellant. The court concluded that in this framework the comment was "subject to interpretation" by the jury as a comment on the failure of Williams to take the stand. Id., at 666. It was clear to the Indiana court that the prosecutorial remark was not so harmful that an admonition wouldn't have cured it. Under Indiana law, an admonition would have been improper absent a specific request for one from the aggrieved party, as the Supreme Court of Indiana explained in the Williams' decision:

In Indiana pursuant to our holding in Rowley v. State, supra, (1972) 259 Ind. 209, 285 N.E.2d 646, the invasion of right from this improper comment could have been remedied by an immediate and effective admonition by the court to the jury to disregard it. Pursuant to Gross v. State, (1974) 261 Ind. 489, 306 N.E.2d 371 and Lee v. State, 424 N.E.2d 1011 (Ind. 1981), however, it is reversible error for the trial court to give a preliminary or final instruction to the jury regarding the refusal of the defendant to testify, in the absence of a request by the defendant for it. An admonition to the jury to disregard a prosecutorial statement which is subject to interpretation by the jury as a comment on the refusal to testify can, like the instruction not to consider the refusal to testify at trial, invite jury consideration of that fact, and therefore should be treated similarly. We therefore hold that the jury should be given an admonition when the defendant requests one, and not otherwise, and that the test to be applied in determining whether or not to grant a mistrial is whether or not such an admonition would be fully effective if given. Here we believe it would have been, and it was therefore not error to refuse to declare a mistrial. (426 N.E.2d at 666-667).

In failing to request an admonition, Petitioner bypassed a remedy, which was available at the trial court level. Failure to preserve an issue by making a requisite objection or other motion requires not only a showing of a cause for the "bypass", but also a showing of actual prejudice before a collateral attack may be made on the conviction. Francis v. Henderson, 425 U.S. 536, 96 S.Ct. 1708, 48 L.Ed.2d 149 (1977), and Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977), make it clear that a state rule requiring a challenge to be made at trial or not at all was consistent with the Constitution, and amounted to an independent and adequate state procedural ground which would have prevented direct review by federal habeas. 433 U.S. at 85, 97 S.Ct. at 2506. Therefore, the Supreme Court of Indiana explicitly held that the Francis rule applied as well to failure to object to admission of evidence at trial. Id.

In Cole v. Stevenson, 620 F.2d 1055 (4th Cir.1980), it was held that although North Carolina's rule did not require "contemporaneous objection" of a jury instruction that may have improperly shifted the burden of proof to a defendant, failure to make exception amounted to such a bypass and hence the Francis rule was applied.

Our own Court of Appeals recognized that this line of cases established the need to raise contemporaneous objections in order to preserve issues arising at trial. Guzzardo v. Bengston, 643 F.2d 1300 (7th Cir. 1981). (However, in that case a post-trial assertion was available and was permitted to be pursued).

And square on point with the present issue this rule applied to failure to afford the trial court an opportunity to remedy a prosecutor's allegedly improper comments in summation on a defendant's failure to advance exculpatory evidence. Broadwater v. Dunham, 479 F.Supp. 1097 (E.D.N.Y. 1979).

Petitioner must show a cause for his failure to request an admonition, and actual prejudice resulting from that failure. He has not done so.

Petitioner has advanced no cause for his failure to request an admonition. Therefore, he must demonstrate that actual prejudice resulted.

This is the type of issue which tends to rest on its individual facts. It is instructive to turn to federal court of appeals decisions on direct appeal to determine what sort of prejudice is necessary before they will invoke their supervisory powers of the federal district courts. If it can be demonstrated that a given allegation of prejudice does not raise to the level which will prompt a federal appellate court to reverse pursuant to its direct supervisory powers, then it may be concluded with assurance that such an allegation does not rise to a violation of constitutional rights that could be remedied in a collateral attack.

Our own Circuit has found an abrogation of a defendant's Fifth Amendment rights to remain silent by a prosecutor's referring to evidence as "uncontradicted" when only the defendant could have been called on to contradict the evidence. United States v. Handman, 447 F.2d 853 (7th Cir.1971); United States v. Lyon, 397 F.2d 505 (7th Cir.1968), cert. den., 393 U.S. 846, 89 S.Ct. 131, 21 L.Ed.2d 117 (1968).

Applying this principal, the courts have consistently held that to reverse on direct appeal, a conviction on grounds of improper comment on a criminal defendant's silence requires a showing of an abuse of the trial court's broad discretion in ruling upon the scope of closing arguments. United States v. Lewis, 547 F.2d 1030, 1036-37 (8th Cir. 1976), cert. den., 429 U.S. 1111, 97 S.Ct. 1149, 51 L.Ed.2d 566 (1977); United States v. Bell, 651 F.2d 1255 (8th Cir.1981):

For a prosecutor's comment to infringe on the fifth amendment right against self-incrimination, the statement must have been clearly intended or be of such a nature that the jury would naturally and necessarily view the comment as a reference to the defendant's failure to testify. United States v. Thurmond, 541 F.2d 774 (8th Cir.1976), cert. den., 430 U.S. 933, 97 S.Ct. 1556, 51 L.Ed.2d 778 (1977).

(Bell, supra, at 1260).

In this case, the Supreme Court of Indiana did not find that the jury would "naturally and necessarily view the comment to testify"; it was merely "subject to interpretation by the jury" as such a comment. 426 N.E.2d at 666. Thus, the remark complained of does not rise to the level of a prejudicial comment which would justify reversal on direct appeal in the Federal judiciary. In Bell, the court found the following comment did not lead the jury to "naturally and necessarily" view it as comment on Bell's failure to take the stand:

Ladies and gentlemen of the jury, the testimony was that, and let's go over it: Sandefer testified that he and David Smith were dope dealers. I wanted them to say that because they were dope dealers. But how do you think they know Mr. Bell and Mr. Benson if they weren't dope dealers? You

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