Petition — Jack R. Duckworth, Warden v. Richard Lee Owen, II

Office -Supreme Court, US.

8 0 FILED

si 1 6 D 9 MAR 19 1981

——— ssa STEVAS,

CLERK

No.

IN THE

Supreme Court of the United States

OCTOBER TERM, 1980

JACK R. DUCKWORTH,

Petitioner,

Vs.

RICHARD LEE OWEN II,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

LINLEY E. PEARSON

Attorney General of Indiana

DAVID A. ARTHUR

Deputy Attorney General

KERMIT R. HILLES

Deputy Attorney General

Office of Attorney General

219 State House

Indianapolis, Indiana 46204

Telephone: (317) 282-6332

Attorneys for Petitioner

OOOO

Central Publishing Company, Inc., Indianapolis, IN 46206

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QUESTION PRESENTED FOR REVIEW

The Seventh Circuit erroneously held that jurors may

impeach their verdict in Respondent Owen’s case, a holding

in direct conflict with that of the Supreme Court of Indiana.

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TABLE OF CONTENTS

Page

Question Presented for Review .................05- i

Tr ANU nso caa vas + ekkeleuvarehece ees iii

NE TN oe ns Citas cusdeuebauinseon tie 2

Jurisdiction............ bw ies wie os cabaeeeee we hea gek ae

Constitutional and Statutory Provisions Involved... 2

I ON ss. es cus etavencehectavpecwes 7

Facts Material to the Consideration of

the Questions Presented .....:.....cccccccccecees 7

Reasons for the Allowance of the Writ ............. 8

The Seventh Circuit Erroneously held that Jurors

may Impeach their Verdict in Respondent Owen’s

Case, a Holding in Direct Conflict with that of the

Supreme Court of Indiana..................... 8

NN lr er 2s vs au nae oe Ved aes veese eee 13

NT ik i ww S kasd ewe eek «wae whee 14

Order of the Seventh Circuit of

I ne we uh wane ae abbaee A-1

Order of the Seventh Circuit of

I OU So ns ac bb's ecuakaoknepieeweie A-12

Memorandum Opinion of the District Court ..... A-17

Judgment of the District Court ................. A-31

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OV Ge

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TABLE OF AUTHORITIES

CASES: Page

Butts v. Wainwright, 575 F.2d 576 (5th Cir. 1978)... 8

Hailey v. Dorsey, 580 F.2d 112 (4th Cir. 1978), cert.

den., Cotton v. Dorsey, 99 S.Ct. 1282, 440 U.S. 9387,

Ute Od COR 000) 2 ae isk. Re 8,9

Hyde v. United States, 225 U.S. 847, 32 S.Ct. 793, 56

Be 2 a ene mare 12

Mattox v. United States, 146 U.S. 140, 13 S.Ct. 50, 36

Leet CO icin ie he 12

McDonald v. Pless, 206 F.2d 268 (4th Cir. 1918), 238

ee O66 Cr dt ce sco coc sg 10

Miller v. Crouse, 346 F.2d 301 (10th Cir. 1965) ..... 11

Monk v. Blackburn, 605 F.2d 837 (5th Cir. 1979), cert.

den., __. U.S. ___., 100 S.Ct. 1826 (1980) ...8, 9, 11

O'Grady v. Hiatt, 52 F. Supp. 212 (N.D. Tx. 1943).. 10

Owen v. State, 269 Ind. 513, 381 N.E.2d 1235 (1978) 8

Procella v. Beto, 319 F.Supp. 668 (S.D. tx. 1979) .... 12

Ratley v. Crouse, 365 F.2d 312 (5th Cir. 1966) ...... 9

Silva v. Cox, 351 F.2d 61 (10th Cir. 1965) .......... 9

Stone v. Powell, 425 U.S. 476, 96 S.Ct. 3037, 49 L.Ed.2d

SOU RTO Cad avis «oxi eR aie ad back) do dann 8

U.S. ex rel. Burnett v. People of Illinois, 619 F.2d 668

CFE Giusy Sc cuek eds veces osatedes 11

U.S. ex rel. Scott v. Babb, 100 F.2d 804 (7th Cir. 1952) 11

Wainwright v. LaRoche, 599 F.2d 722 (5th Cir. 1979) 8

Wilson v. State, 253 Ind. 585, 255 N.E.2d 817(1970) 8

iii

Y MEEBO SHGE.....-.iispSting ee ROME

RULES : Ro , foi ea S nt ga

Rule 606, Federal Rules of Evidence ...........9, 10, 12

Rule 1101(e), Federal Rules of Civil Evidence...... 9, 10

a

eer.

No.

IN THE

Supreme Court of the United States

OCTOBER TERM, 1980

JACK R. DUCKWORTH,

Petitioner,

Vs.

RICHARD LEE OWEN II,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

Petitioner, Jack R. Duckworth, respectfully prays this

Court issue a Writ of Certiorari to review the judgment of

the United States Court of Appeals for the Seventh Circuit

(hereinafter Seventh Circuit), entered in cause number 79-

2546 on December 22, 1980, which reversed the judgment

of the United States District Court for the Northern

District of Indiana, South Bend Division (hereinafter

District Court).

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OPINIONS BELOW

The orders of the Seventh Circuit issued on November 7,

1980 and on December 22, 1980, have not been officially

reported. Copies of said orders are appended hereto at

pages A-1 and A-11. The December 6, 1979, opinion of the

District Court has not been officially reported. A copy of

said opinion is appended hereto at page A-17.

JURISDICTION

The jurisdiction of this Court is invoked pursuant to 28

U.S.C. §1254(1) and Rule 17.1(a) of the Rules of this Court, to

review a decision of a federal court of appeals that has

decided a federal question in a way in conflict with a state

court of last resort.

The decision of the Seventh Circuit was entered on

December 22, 1980. This' petition is timely filed in that it is

filed prior to the expiration of the ninety (90) day period

allowed by 28 U.S.C. §2101(c) and Rule 20.2.

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

The Sixth Amendment to the Constitution of the United

States provides as follows:

In all criminal prosecutions, the accused shall enjoy

the right to a speedy and public trial, by an impartial

jury of the State and district wherein the crime shall

have been committed, which district shall have been

previously ascertained by law, and to be informed of

the nature and cause of the accusation; to be

confronted with the witnesses against him; to have

compulsory process for obtaining witnesses in his

pH and to have the Assistance of counsel for his

efense.

28 U.S.C. §2254 provides as follows:

(a) The Supreme Court, a Justice thereof, a circuit

judge, or a district court shall entertain an application

for a writ of habeas corpus in behalf of a person in

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custody pursuant to the judgment of a State court only

on the ground that he is in custody in violation of the

Constitution or laws or treaties of the United States.

(b) An application for a writ of habeas corpus in

behalf of a person in custody pursuant to the judgment

of a State court shall not be granted unless it appears

that the applicant has exhausted the remedies

available in the courts of the State, or that there is

either an absence of available State corrective process

or the existence of circumstances rendering such

process ineffective to protect the rights of the prisoner.

(c) An applicant shall not be deemed to have

exhausted the remedies available in the courts of the

State, within the meaning of this section, if he has the

right under the law of the State to raise, by any

available procedure, the question presented.

(d) Inany proceeding instituted in a Federal court

by an application for a writ of habeas corpus by a

person in custody pursuant to the judgment of a State

court, a determination after a hearing on the merits of

a factual issue, made by a State court of competent

jurisdiction in a proceeding to which the applicant for

the writ and the State or an officer or agent thereof

were parties, evidenced by a written finding, written

opinion, or other reliable and adequate written

indicia, shall be presumed to be correct, unless the

applicant shall establish or it shall otherwise appear,

or the respondent shall admit—

(1) that the merits of the factual dispute were not

resolved in the State court hearing;

(2) that the factfinding procedure employed by the

ter court was not adequate to afford a full and fair

earing;

(3) that the material facts were not adequately

developed at the State court hearing;

(4) -that the State court lacked jurisdiction of the

subject matter or over the person of the applicant in

the State court proceeding;

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(5) that the applicant was an indigent and the

State court, in deprivation of his constitutional right,

failed to appoint counsel to represent him in the State

court proceeding;

(6) that the applicant did not receive a full, fair,

and adequate hearing in the State court proceeding; or

(7) that the applicant was otherwise denied due

process of law in the State court proceeding;

(8) or unless that part of the record of the State

court proceeding in which the determination of such

factual issue was made, pertinent to a determination

of the sufficiency of the evidence to support such

factual determination, is produced as provided for

hereinafter, and the Federal court on a consideration

of such part of the record as a whole concludes that

such factual determination is not fairly supported by

the record;

And in an evidentiary hearing in the proceeding in the

Federal court, when due proof of such factual

determination has been made, unless the existence of

one or more of the circumstances respectively set forth

in paragraphs numbered (1) to (7), inclusive, is shown

by the applicant, otherwise appears, or is admitted by

the respondent, or unless the court concludes pursuant

to the provisions of paragraph numbered (8) that the

record in the State court proceeding, considered as a

whole, does not fairly support such factual

determination, the burden shall rest upon the

applicant to establish by convincing evidence that the

factual determination by the State court was

erroneous.

(e) Ifthe applicant challenges the sufficieny of the

evidence adduced in such State court proceeding to

support the State court’s determination of a factual

issue made therein, the applicant, if able, shall

produce that part of the record pertinent to a

determination of the sufficiency of the evidence to

support such determination. If the applicant, because

of indigency or other reason is unable to produce such

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part of the record, then the State shall produce such

part of the record and the Federal! court shall direct

the State to do so by order directed to an appropriate

State official. If the State cannot provide such

pertinent part of the record, then the court shall

determine under the existing facts and circumstances

what weight shall be given to the State court’s factual

determination.

(f) A copy of the official records of the State court,

duly certified by the clerk of such court to be a true and

correct copy of a finding, judicial opinion, or other

reliable written indicia showing such a factual

determination by the State court shall be admissible in

the Federal court proceeding.

Rule 606(b) of the Federal Rules of Evidence provides that:

(b) Inquiry into validity of verdict or indictment.

‘Upon an inquiry into the validity of a verdict or

indictment, a juror may not testify as to any matter or

statement occuring during the course of the jury’s

deliberations or to the effect of anything upon his or

any juror’s mind or emotions as influencing him to

assent to or dissent from the verdict or indictment or

concerning his mental processes in connection

therewith, except that a juror may testify on the

question whether extraneous prejudicial information

was improperly brought to the jury’s attention or

whether any outside influence was improperly

brought to bear upon any juror. Nor may his affidivat

or evidence of any statement by him concerning a

matter about which he would be precluded from

testifying be received for these purposes.

Rule 1101(e) provides that:

(e) Rules applicable in part. In the following

proceedings these rules apply to the extent that

matings of elidence ave tube peevided for is the ataintes

which govern procedure therein or in other rules

prescribed by the Supreme Court pursuant to

statutory authority: the trial of minor and petty

offenses by the United States magistrates; review of

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agency actions when the facts are subject to trial de

novo under section 706(2\F) of title 5, United States

Code; review of orders of the Secretary of Agriculture

under section 2 of the Act entitled “An Act to authorize

association of procedures of agricultural products”

approved February 18, 1922 (7 U.S.C. 292), and under

sections 6 and 7(c) of the Perishable Agricultural

Commodities Act, 1930 (7 U.S.C. 499g(c)); naturaliza-

tion and revocation of naturalization under sections

310-318 of the Immigration and Nationality Act (8

U.S.C. 1421-1429); prize proceedings in admiralty

under sections 7651-7681 of title 10, United States

Code; review of orders of the Secretary of the Interior

under section 2 of the Act entitled “An Act authorizing

associations of producers of aquatic products”

approved June 25, 1934 (15 U.S.C. 522); review of

orders of petroleum control boards under section 5 of

the Act entitled “An Act to regulate interstate and

foreign commerce in petroleum and its products by

prohibiting the shipment in such commerce of

petroleum and its products produced in violation of

State law, and for other purposes”, approved

February 22, 1935 (15 U.S.C. 715d); actions for fines,

penalties, or forfeitures under part V of title IV of the

Tariff Act of 1930 (19 U.S.C. 1581-1624), or under the

Anti-Smuggling Act (19 U.S.C. 1701-1711); criminal

libel for condemnation, exclusion of imports, or other

proceedings under the Federal Food, Drug, and

Cosmetic Act (21 U.S.C. 301-392); disputes between

seamen under sections 4079, 4080, and 4081 of the

Revised Statutes (22 U.S.C. 256-258); habeas corpus

under sections 2241-2254 of title 28, United States

Code; motions to vacate, set aside or correct sentence

under section 2255 of title 28, United States Code;

actions for penalties for refusal to transport destitute

seamen under section 4578 of the Revised Statutes (46

U.S.C. 679); actions against the United States under

the Act entitled “An Act authorizing suits against the

United States in admiralty for damage caused by and

salvage service rendered to public iB vemele helédeing to

the United States, and for other purposes”, approved

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March 8, 1925 (46 U.S.C. 781-790), as implemented by

section 7730 of title 10, United States Code.

STATEMENT OF THE CASE

This petition arises from the reversal, in part, by the

Seventh Circuit of a decision by the District Court in the

case of Owen v. Duckworth, Cause Number S79-98,

whereby the District Court dismissed a petition for a writ

of habeas corpus filed by Respondent Owen (Petitioner

below).

Facts Material to the Consideration

of the Questions Presented

Respondent, a prisoner at the Indiana State Prison, filed

a petition for writ of habeas corpus pursuant to 28 U.S.C.

§2254, in the District Court alleging that his conviction in

state court was unconstitutionally infirm for several

reasons, including alleged juror misconduct which he

contended violated his Sixth Amendment rights.

Petitioner (Respondent below) filed his Response to Order

to Show Cause on June 26, 1979. The District Court issued

its Memorandum Opinion and Judgment dismissing this

action on December 6, 1979. (See, Appendix page A-17).

The Seventh Circuit affirmed the District Court, in part, in

an unpublished order dated November 7, 1980, and

ordered that oral argument be heard regarding

Respondent’s claim.that he was denied a fair trial because

of juror misconduct. The Seventh Circuit vacated the

District Court’s judgment on December 22, 1980, insofar as

the District Court had denied habeas relief on this ground

and remanded with instructions to conduct an evidentiary

hearing.

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REASONS FOR ALLOWANCE OF THE WRIT

THE SEVENTH CIRCUIT ERRONEOUSLY HELD

THAT JURORS MAY IMPEACH THEIR VERDICT

IN RESPONDENT OWEN’S CASE, A HOLDING

IN DIRECT CONFLICT WITH THAT OF THE

SUPREME COURT OF INDIANA

During the course of Respondent’s criminal trial, Mary

Tolley, one of the jurors, received an anonymous telephone

call that she considered threatening. She reported this call

to the trial judge who conducted an in camera hearing and

determined that she was capable of rendering an impartial

verdict. Respondent asserts that Mrs. Tolley subsequently

told other jurors about this call, which constituted juror

misconduct and introduced a prejudicial influence into the

deliberations. The trial court heard direct testimony from

one juror and testimony from the public defender’s

investigator who testified that he had spoken to the other

jurors. The trial court refused to declare a mistrial based on

these allegations.

The Supreme Court of Indiana held that Respondent was

precluded from interrogating jurors and attempting to

impeach the verdict by ‘uror testimony as a matter of state

law. Owen v. State, 269 ind. 513, 381 N.E.2d 1235 (1978);

Wilson v. State, 253 Ind. 585, 253 N.E.2d 817 (1970). Unless

a state rule of evidence violates Respondent’s federally

protected rights, then federal courts are bound by state

rules of evidence in habeas review. Monk v. Blackburn, 605

F.2d 837 (5th Cir. 1979), cert. den., 100 S.Ct. 1326 (1980);

Wainwright v. LaRoche, 599 F.2d 722 (5th Cir. 1979),

Hatley v. Dorsey, 580 F.2d 112 (4th Cir. 1978), cert. den.,

Cotton v. Dorsey, 440 U.S. 937, 99 S.Ct. 1282, 59 L.Ed.2d

495 (1979); Butts v. Wainwright, 575 F.2d 576 (5th Cir.

1978); see also, Stone v. Powell, 428 U.S. 476, 477 n.10, 96

S.Ct. 3037, 49 L.Ed.2d 1067 (1976). Absent a constitutional

commandment, rules of evidence in state criminal trials

are a matter of state law and therefore questions to be

determined solely by state courts. Monk v. Blackburn,

is 2

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supra; Hailey v. Dorsey, supra; Silva v. Cox, 351 F.2d 61

(10th Cir. 1965); Ratley v. Crouse, 365 F.2d 321 (5th Cir.

1966).

The District Court found no constitutional error in the

state court rulings or procedure (Appendix p. A-21). The

Seventh Circuit held that Rule 1101(e) of the Federal Rules

of Evidence provides that the Federal Rules of Evidence

govern federal habeas proceedings and that “(cjonsequently

the evidentiary problem in this case is governed by Rule

606(b) of the Federai Rules of Evidence and not the

apparently contrary Indiana rule” (Appendix p. A-7). Rule

1101(e) provides in part that:

(e) Rules applicable in part. In the following

proceedings these rules (Federal Rules of Evidence)

apply to the extent that matters of evidence are not

provided for in the statutes which govern procedure

thereir or in other rules prescribed by the Supreme

Court pursuant to statutory authority...habeas

corpus under sections 2241-2254 of title 28, United

States Code....

Rule 606 of the Federal Rules of Evidence deals with

competency of jurors as witnesses and provides that:

(b) Inquiry into validity or indictment. Upon an

inquiry into the validity of a verdict or indictment, a

juror may not testify as to any matter or statement

occurring during the course of the jury’s deliberation

or to the effect of anything upon his or any other juror s

mind or emotions as influencing him to assent to or

dissent from the verdict or indictment or concerning

his mental processes in connection therewith, except

that a juror may testify on the question whether

extraneous prejudicial information was improperly

brought to the jury’s attention or whether any outside

influence was improperly brought to bear upon any

juror. Nor may his affidavit or evidence of any

statement by him concerning a matter about which he

would be precluded from testifying be received for

these purposes.

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The Federal Rules of Evidence were adopted by Congress

for use in resolving evidentiary questions in hearings in

federal courts. There is no question that Rule 1101(e) makes

these rules applicable to evidentiary hearings which are

held during federal review of state court convictions under

28 U.S.C. §2254. However, the question presented here is

whether such an evidentiary hearing is required or

whether the state evidentiary rule is controlling and

precludes such a hearing. The Federal Rules of Evidence

do not create substantive constitutional rights and are not

the appropriate guideline to use in determining whether an

evidentiary hearing is required in these circumstances.

Rule 606(b) of the Federal Rules of Evidence codified the

evidentiary rule which had been accepted by the federal

courts, and a few state courts, that a juror may testify as to

whether extraneous material was brought to the attention

of jurors. However, the federal case law prior to the

adoption of Rule 606, and the notes of the advisory

committee in dealing with this rule establish that the

adoption of this Rule was based on a policy preference

rather than on constitutional grounds. McDonald v. Pless,

206 F.2d 263 (4th Cir. 1°13), 288 U.S. 264 (1915); O’Grady v.

Hiatt, 52 F.Supp. 212, 213 (N.D. Tx. 1943). The notes of the

advisory committee establish that the Rule was adopted as

an accommodation between competing policy considera-

tions. There is no mention of constitutional grounds in these

notes, and the cases cited therein do not make the federal

rule applicable in state courts as a matter of constitutional

law. There also does not appear to be any decision of this

Court that interprets the United States Constitution as

requiring this evidentiary rule to be imposed on state

courts.

Where a petitioner for habeas corpus relief under 28 U.S.C.

§2254 was not denied any primary right safeguarded by the

United States Constitution in state court proceedings, and

where the state court has interpreted state law and

procedure, that interpretation is conclusive on the federal

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courts. United States ex rel. Burnett v. People of State of

Illinois, 619 F.2d 668, 671 (7th Cir. 1980); Monk v.

Blackburn, supra; Miller v. Crouse, 346 F.2d 301 (10th Cir.

1965); United States ex rel. Scott v. Babb, 100 F.2d 804 (7th

Cir. 1952). Evidentiary hearings should only be conducted

if a habeas petitioner’s constitutional rights may have been

violated in state criminal proceedings. Where no question

of constitutional magnitude is raised evidentiary questions

are controlled by state rules of evidence. Monk v.

Blackburn, supra. In the absence of a constitutional

question the doctrines of comity and federalism make it

inappropriate to utilize federal rules of evidence to

determine evidentiary issues in state courts.

The question then, properly framed, is whether the state

court determination violated any of Respondent’s

constitutionally protected rights. Petitioner believes that

the District Court was correct in finding that there was no

constitutional error in the state court rulings and that

further inquiry by the federal courts is foreclosed. The

Sixth Amendment has traditionally not been interpreted

as mandating state courts to require jurors to impeach

their verdict where, as here, juror misconduct has been

alleged but there is no corroborating evidence other than

testimony of jurors or persons who are alleged to have

received information from jurors.

Respondent alleges that a juror told other jurors about an

anonymous “threatening” telephone call that she received.

Respondent attempted to corroborate this allegation by

juror testimony and the testimony of the public defender’s

investigator who said he spoke to some of the jurors.

Respondent did not present any evidence of the alleged

misconduct from any other source and never asserted the

existence of such evidence.

Under these circumstances, the claim cannot be

considered by the federal courts under 28 U.S.C. §2254

because of the traditional rule that “[fJederal due process

does not guarantee an accused the right to question jurors

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about their thought process during their deliberation or to

question them about matters known only to them and not

susceptible to outside corroboration by other evidence.”

(Emphasis added). Procella v. Beto, 319 F.Supp. 662, 668

(S.D. Tx. 1970);! see also, Mattox v. United States, 146 U.S.

140, 147-150, 18 S.Ct. 50, 36 L.Ed. 917 (1892); Hyde v.

United States, 225 U.S. 347, 384, 32S.Ct. 793, 56 L.Ed. 1114

(1912). In cases where federal courts assess claims of juror

misconduct in state proceedings and state law or procedure

does not permit jurors to impeach their own verdict, then

juror testimony should be considered inadmissible “to

_prove matters exclusively within the knowledge of the

jurors and which was not capable of corrobration by the

testimony of witnesses or the introduction of evidence

which did not originate with the jurors themselves.”

Procella v. Beto, supra, at 668-9; see also, Hyde v. United

States, supra. This rule may not be applicable to cases

arising in federal court because of the adoption of Rule

606(b), but these cases still state the requirements of the

United States Constitution in such matters.

Thus, while the Federal Rules of Evidence, including

Rule 606, are applicable to evidentiary hearings conducted

under §2254, the Rules of Evidence do not apply in making

the determination whether an evidentiary hearing is

required. The appropriate standard in making this

determination is whether the state’s actions deprived

Respondent of protected constitutional rights. Where such

rights are not violated then state evidentiary decisions will

not be disturbed.

Here Respondent’s federally protected rights have not

been infringed and the Seventh Circuit acted improperly in

overruling the District Court and mandating an

evidentiary hearing.

! Procella dealt in part with allegations that the jury had considered

matters which were not introduced into evidence during the trial in that

a juror was alleged to have brought up the conviction and punishment of

a co-defendant of Procella.

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CONCLUSION

For these reasons, the Petition for a Writ of Certiorari to

review the judgment and order of the Seventh Circuit

should be granted.

Respectfully submitted,

LINLEY E. PEARSON

Attorney General of Indiana

David A. Arthur

Deputy Attorney General

Kermit R. Hilles

Deputy Attorney General

Office of Attorney General

219 State House

Indianapolis, Indiana 46204

Telephone: (317) 232-6332

Attorneys for Respondent

A’

APPENDIX

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United States Court of Appeals

For the Seventh Circuit

Chicago, Illinois 60604

(Argued: December 11, 1980)

December 22, 1980.

Before

Hon. ROBERT A. SPRECHER, Circuit Judge

Hon. WILLIAM J. BAUER, Circuit Judge

Hon. HARLINGTON WOOD, JR., Circuit Judge

RICHARD LEE OWEN, II, ) Appeal from the United

Petitioner-A ppellant, ) States District Court

) for the Northern

No. 79-2546 vs. ) District of Indiana,

) South Bend Division.

JACK DUCKWORTH, Warden, ) No. S 79-98

Respondent-A ppellee. ) Allen Sharp, Judge.

ORDER

Petitioner-appellant, Richard Lee Owen II, appeals from

a judgment denying his petition for a writ of habeas corpus

without a hearing. On November 7, 1980, in an unpublished

order, this court affirmed in part, pursuant to

Fed.R.App.P. 34(a) and Circuit Rule 14(f), but ordered that

oral argument be heard regarding Owen’s claim that he

was denied a fair trial because of juror misconduct.'! We

now vacate the district court’s judgment insofar as it

denied habeas relief on this ground and remand with

instructions to conduct an evidentiary hearing.

'The nature of Owen’s offense, his sentence, and the procedural history

of the case were set forth in this court’s previous order and need not be

repeated here.

A-1

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A-2

During the course of the trial, juror Mary Tolley received

an anonymous, threatening telephone call.2 When this was

brought to the trial judge’s attention, he conducted an in-

chambers examination of Tolley. The judge was satisfied

that Tolley’s judgment of the case would not be impaired by

her receipt of the threat. Therefore, he allowed Tolley to

continue, admonishing her not to reveal this matter to the

other jurors.®

After the trial, Patrick McManama, a second-year law

student working for the Public Defender, contacied ten of

the twelve jurors by telephone. Of these ten, eight

responded to a set of six questions regarding their

knowledge of Tolley’s receipt of a telephone threat during

2The telephone threat was curious. Although Tolley was a juror and not

a potential witness, the caller said: “God damn you, honky. You better

not testify. We have a contract out on you. We are going to get you. We

are going to get you.” Nevertheless, Tolley took the call seriously and it

scared her.

Although the caller did not identify himself, there is some basis in the

record for inferring that Tolley may have suspected Owen’s lay

assistant, David Spencer, who sat with Owen at the defense table.

During the in-chambers examination conducted by the trial judge

after Tolley reported having received a threat, the trial court correctly

stated to Tolley that there was no way to know whether the caller was

someone acting on Owen’s behalf or somebody trying to prejudice

Tolley against Owen. After this, Tolley indicated that she was worried

by the fact that Spencer smiled at her during the trial. Tolley had

stated that the caller’s voice sounded like that of a black man. When she

indicated that Spencer was the source of her worry, Tolley identified

him as “(t]he black man.” In any event, like Owen, Spencer was

incarcerated during the trial and it would have been difficult, at best,

for him to have made the call to Tolley.

At this stage of the proceedings, we must assume that Spencer was

not the caller subject, of course, to further proof to the contrary on

remand. Also, hopefully on remand determinations as to whether

Tolley did suspect Spencer and, if so, whether she so informed other

jurors, can be made.

’Owen successfully requested a mistrial as a result of this incident. Also,

wedi > the alternate jurors who could have replaced Tolley had

n utilized.

A-3

the trial.‘ The jurors’ responses indicated that only Tolley

was threatened directly. However, Tolley said that she told

two jurors who were “holding out from the rest of the

jury...” that she had received a threat, indicating that she

told them during the deliberations.' Two jurors responded

affirmatively and two negatively to the following question:

“During the trial were you aware of anyone else receiving a

threat or being contacted?’ The remaining jurors

responded that “it was implied and that some of the jurors

happened to mention it.”

Partially, as a result of the McManama’s investigation,

Owen made a post-judgment motion to correct errors upon

which a hearing was conducted.’ McManama’s hearing

testimony related the results of his investigation, as

described above. Ruth Yarger, a juror who had not

responded to McManama’s inquiry, also testified at the

hearing. She testified that sometime before the jury

deliberations began she became “vaguely aware” that one

of the jurors had received a threatening phone call. Yarger

also indicated that some of the other jurors became aware

of this, stating that an extensive discussion of the threat did

not occur “because we as ajury stopped it.” Thus, including

Yarger, at least three jurors were aware that a juror had

received a threat during the trial, and possibly the entire

jury was so aware.

Tolley submitted a medical excuse and did not testify at

‘Tolley was one of the eight jurors who responded to McManama’s

questions. However, Ruth Yarger, who testified at the hearing on

Owen’s post-judgment motion to correct errors, did not respond to those

questions although she was contacted.

5The identity of these two jurors cannot be determined from the record.

SAt the state court hearing, McManama was not permitted to identify

which jurors had given a particular response. Thus, the record does not

disclose whether the two affirmatively responding jurors were the two

to whom Tolley had revealed her receipt of a threat. See note 5, supra.

?The complete motion raised numerous grounds for relief and consisted

of sixty pages.

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the hearing on Owen’s post-judgment motion. At the time of

the trial, Tolley was approximately sixty-eight years old

and claimed that her physical and emotional condition

prohibited her from testifying. The trial judge initially

rejected as insufficient letters from two doctors.? However,

when told that she would have to testify, Tolley approached

“a state of hysteria.” Consequently, the trial judge excused

her. The judge initially granted, but ultimately denied,

Owen’s request to depose Tolley instead.®

II.

Owen maintains that the known facts coupled with those

alleged raise a presumption of prejudice which at least

entitles him to an evidentiary hearing, especially in the

light of what he characterizes as an inadequate state court

record.!° On the other hand, the district court essentially

held, and Duckworth maintains, that an evidentiary

hearing would be improper because of the proscription

against impeachment of a jury verdict through the use of

the jurors’ testimony and also that one was not required in

’Ironically, one of Tolley’s doctors had been a prosecution witness at

trial.

%Owen made an offer of proof. He stated that Tolley would have testified

that during the deliberations she discussed her receipt of a threat with

the other jurors, particularly with two who were holding out. However,

Owen did not speculate whether Tolley had attributed the threat to

anyone acting on his behalf. As discussed in note 2 supra, this is a

factual matter which should be resolved on remand, if possible.

Alternatively, Owen argues that, through no fault of his, a substantial

period of time has elapsed since the misconduct of which he complains,

rendering a hearing inadequate protection of his federal rights and

requiring the granting of his petition without further proceedings.

However, the secondary position of this argument in Owen’s main

brief, its absence from his reply brief, and the fact that it was glossed

over at oral argument, illustrate that it is not strenuously pressed. In

any event, the better course is to remand for a hearing and to resolve the

problem of witness unavailability which Owen speculates will arise if

and when it is presented.

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this case because the factual issues tendered by Owen were

adequately litigated in the state court hearing on Owen’s

post-judgment motion. We find that Owen maybe able to

prove facts which would entitled him to habeas relief by use

of permissible means and that, through no fault of Owen’s,

the pertinent factual issues were not fully and adequately

litigated in state court.

A.

In a criminal case, any private communication,

contact, or tampering, directly or indirectly, with a

juror during a trial about the matter pending before

the jury is, for obvious reasons, deemed presumptively

prejudicial. ...The presumption is not conclusive, but

the burden rests heavily upon the Government to

establish, after notice to and hearing of the defendant,

that such contact with the juror was harmless to the

defendant.

Remmer v. United States, 347 U.S. 227, 229 (1954), appeal

after remand, 348 U.S. 904 (1955), appeal after subsequent

remand, 350 U.S. 377 (1956) (emphasis supplied and

citations omitted).!!

Accordingly, federal courts sometimes have ordered

inquiries into allegations that extra-record facts or events

potentially influenced jury verdicts, at least in cases such as

this, in which the records revealed that the defendants (or

‘Duckworth maintains that Yarger’s testimony that the jurors

foreclosed extensive discussion of the threat renders this case similar to

Hinojos v. Black, 462 F.2d 621 (9th Cir. 1972), cert. denied, 409 U.S.

1126 (1973) (per curiam), in which habeas relief was held to have been

properly denied where two jurors allegedly “went outside the record.”

Although the Hinojos court did not elaborate, in its brief opinion it

stated that there was a “full and complete post trial hearing in the court

of conviction....” By contrast, in this case the petitioner’s primary

claim is that he was not afforded such a hearing. Thus, we disagree

with Duckworth’s implication that the Government has satisfied its

burden of establishing that the error in this case, if any, was harmless.

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A-6

petitioners) were not embarking on “fishing expeditions.”

E.g., Remmer, supra; Sullivan v. Fogg, 613 F.2d 465 (2d Cir.

1980); United States v. Howard, 506 F.2d 865 (5th Cir.

1975);'*? Downey v. Peyton, 451 F.2d 236 (4th Cir. 1971).

Upon sufficient proof of such allegations, they either have

reversed convictions or granted federal habeas relief. Z.G.,

Parker v. Gladden, 385 U.S. 363 (1966) (per curiam);

Remmer, supra; United States ex rel. Tobe v. Bensinger, 492

F.2d 232 (7th Cir. 1974); United States ex rel. Owen v.

McMann, 435 F.2d 818 (2d Cir. 1970), cert. denied, 402 U.S.

906 (1971); United States v. Rakes, 74 F. Supp. 645 (E.D.

Va. 1947); Compare, Taylor v. Mabry, 593 F.2d 318 (8th

Cir. 1979) (per curiam) (alleged offending juror testified at

hearing on state prisoner’s habeas petition that he did not

inform the other jurors of petitioner’s criminal record of

which he knew because he was a friend of petitioner’s sister

and brother-in-law). Consequently, Owen has made

apparently well-founded allegations which entitle him, at

least, to an opportunity to litigate them fully.

B.

The district court’s decision not to conduct a hearing was

based in part on the proscription against permitting jurors

“Explaining the reasons for the court's reversal of the denial a motion

for a new trial and its remand for a hearing to determine the accuracy

of such allegations in Howard, Judge Goldberg remarked:

The modern jury is conceived of as an institution that determines

the merits of a case solely on the basis of the evidence developed

before it in the adversary arena. As Justice Holmes observed in

Patterson v. Colorado, 1907, 205 U.S. 454, 462, 27 S.Ct. 556, 558,

51 L.Ed 879, 881, “The theory of our system is that the conclusions

to be reached in a case will be induced only by evidence and

argument in open court, and not by any outside influence,

whether of private talk or public print.” Accordingly, courts have

been continually sensitive to the jeopardy to a criminal

defendant’s Sixth Amendment right posed by any jury exposure

to facts collected outside of trial.

United States v. Howard, 506 F.2d at 866.

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A-7

to impeach their own verdict. The Indiana Supreme

Court’s opinion in this case indicates that under Indiana

law Owen was properly foreclosed from proving the

occurrence of juror misconduct through the use of the

jurors’ testimony. Owen v. State, 269 Ind. 513, 381 N.E.2d

1235, 1241 (1978).'° However, this Indiana evidentiary rule

is inapplicable in a federal habeas proceeding. As Judge

Friendly remarked even before the enactment of the

Federal Rules of Evidence:

[W]e would be obliged to disregard a state evidentiary

rule preventing what in this case is the only method of

proving that the defendant had been denied due

process by the jury’s consideration of prejudicial

extra-record facts...We would reach the same result

if the supposed...rule barring a juror’s statement

about improper statements within the jury room were

viewed as being cast in terms of privilege.

United States ex rel. Owen v. McMann, 435 F.2d at 820

(citations and a footnote omitted).

After the promulgation of the Federal Rules of Evidence,

the accuracy of Judge Friendly’s dictum is unquestionable.

Pursuant to Rule 1101(e), the Federal Rules of Evidence

govern federal habeas proceedings. Consequently, the

evidentiary problem in this case is governed by Rule 606(b)

of the Federal Rules of Evidence and not the apparently

contrary Indiana rule. Smith v. Brewer, 444 F. Supp. 482,

486 (S.D. Iowa), aff'd, 577 F.2d 466 (8th Cir.), cert. denied,

439 U.S. 967 (1978); See Generally 10 Moore's Federal

Practice §606.20[2].

Rule 606(b) provides:

Inquiry into validity of verdict or indictment. Upon an

inquiry into the validity of a verdict or indictment, a

'8As Owen's counsel pointed out in oral argument, this conclusion of the

Indiana Supreme Court is inconsistent with Duckworth’s argument

that Owen had a full and fair opportunity to litigate his claim in the

state courts. See Part III C, infra.

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A-8

juror may not testify as to any matter of statement

occurring during the course of the jury’s deliberations

or to the effect of anything upon his or any other juror’s

mind or emotions as influencing him to assent to or

dissent from the verdict or indictment or concerning

his mental processes in connection therewith, except

that a juror may testify on the question whether

extraneous prejudicial information was improperly

brought to the jury’s attention or whether any outside

influence was improperly brought to bear upon any

juror. Nor may his affidavit or evidence of any

statement by him concerning a matter about which he

would be precluded from testifying be received for

these purposes.

Fed R. Evid. 606(b).

Essentially, Rule 606(b) tracks the pre-existing case law,

which embodied a flexible approach to the evidentiary

problem to which the rule is addressed. Government of

Virgin Islands v. Gereau, 523 F.2d 140, 149 & n.22 (3d Cir.

1975), cert. denied, 424 U.S. 917 (1976) (citing cases); see

generally 3 Weinstein’s Evidence 4's 606/03], [04];

Advisory Committee Notes, Fed. R. Evid. 606(b). Under

federal law, post-verdict interrogation of jurors has been

permitted in criminal cases: regarding “direct” outside

influences upon the jury, such as a bailiff’s comments,"

pressure to convict imposed by the trial judge," and the

reading of newspapers in the jury room;'* and regarding

prejudicial matters communicated to the jury through one

of its members;'? but not regarding the jurors’ mental

“Parker v. Gladden, 385 U.S. 363 (1966) (per curiam); United States ex

rel. Tobe v. Bensinger, 492 F.2d 232 (7th Cir. 1974).

Government of Virgin Islands v. Gereau, 523 F.2d 140.

'6Mattor v. United States, 146 U.S. 140 (1892), later appeal, 156 U.S. 237

(1895).

"United States ex rel. Owen v. McMann,435 F.2d at 820; United States v.

Rakes, 74 F. Supp 645 (E.D. Va. 1947).

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A-9

processes or their method of reaching a verdict.'8

Obviously, there is no bright line between the

permissible and the impermissible in this area. However,

we conclude that federal law permits Owen to prove

through the testimony of the jurors whether, when, and to

what extent Tolley discussed her receipt of the threatening

telephone call with the other jurors, and especially whether

in so doing she attributed the call to the defendant or

someone connected with him. Of course, when eliciting the

jurors’ testimony the parties and the trial court must

scrupulously avoid any inquiry into impermissible

matters. However, this has been achieved, in other cases!9

and there is no reason why it can not be done here.

C.

The district court held, and Duckworth maintains, that

regardless of the evidentiary barrier discussed above, an

evidentiary hearing was not required because the factual

matters which Owen seeks to litigate were litigated

adequately in state court, where Owen did not come forth

with sufficient evidence to prove that prejudicial error had

occurred. This conclusion, however, assumes the answer to

the determinative question: Was the state court hearing

adequate?

Under long standing Supreme Court precedent, where,

as here, a petitioner has alleged facts which would entitle

him to habeas relief, see Part IIA, supra, a federal habeas

Smith v. Brewer, supra, 444 F. Supp. 482; but see Tobias v. Smith, 468 F.

Supp 1287 (W.D.N.Y. 1979) (evidentiary hearing ordered on habeas

petition’s claim that foreman told jury to disregard identification issue

because all blacks look alike and to credit white victim’s testimony over

that of the black defendant).

9F.G., United States v. Winters, 434 F. Supp. 1181 (N.D. Ind. 1977)

(Sharp, J.), aff'd, 582 F.2d 1152 (7th Cir.), cert. denied, 439 U.S. 936

(1978) (Jurors questioned by trial court); see also cases cited in notes 14,

15, 16, and 17 supra.

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A-10

court must conduct an evidentiary hearing under certain

circumstances. Specifically, a hearing is required if: (1) the

merits of the factual dispute were not resolved in the state

court proceedings; (2) the state court did not afford the

petitioner a full and fair hearing; or (3) the material facts

were not adequately developed in the state court

proceedings. Townsend v. Sain, 372 U.S. 293, 313 (1963).

In this case, a hearing is mandatory under at least two of

these criteria. Duckworth admits that “the trial court did

not make a specific finding as a result of the post-conviction

hearing...” The Indiana Supreme Court’s opinion may be

construed as containing such a finding. See 381 N.E.2d at

1241. However, we need not decide if it does and, if so,

whether it makes an evidentiary hearing unnecessary

because such a hearing clearly is required under the other

two criteria.

The record reveals that the state court did not provide

Owen with a full and fair hearing. As discussed above, the

most crucial witness, Tolley, was excused from the post-

conviction hearing and a request to depose her ultimately

was denied. Only one of the jurors testified at the hearing. It

is not clear whether Owen intended to call others. However,

after hearing only two witnesses, the trial court made it

obvious that attempts to call additional witnesses would be

futile, stating: “I am not going to let this continue... .If this

is all right the Supreme Court of Indiana is going to have to

say that it is.” The Supreme Court of Indiana condoned the

trial court’s foreclosure of further proof. 381 N.E.2d at

1241. ;

Because of that foreclosure, as discussed more fully

above, the material facts were not developed adequately in

the state court proceeding. For example, on the current

record, it cannot be determined when Tolley told the other

jurors about receiving the threat. Yarger’s testimony

indicates that it was before the deliberations, while Tolley’s

responses to McManama’s questions indicate the opposite.

Also, we cannot tell from the state court record whether

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* 3.

A-11

Tolley attributed the telephone call to Owen or someone ~

connected with him when speaking about it with the other

jurors. These matters are crucial. It is likely that they will

be determinative of the existence or absence of prejudice in

this case.

To summarize, our examination of the record convinces

us: that Owen’s allegations are made in good faith; that he

may be able to prove facts that would entitle him to habeas

relief through permissible means; and that the state court

post-conviction hearing provided Owen with an inadequate

opportunity to litigate this claim. Consequently, a remand

for an evidentiary hearing is required.

The judgment is VACATED and the case REMANDED

for further proceedings consistent with this order.

FX

United States Court of Appeals

For the Seventh Circuit

Chicago, Illinois 60604

(Submitted: November 3, 1980)

November 7, 1980.

Before

Hon. WALTER J. CUMMINS, Circuit Judge

Hon. WILBUR F. PELL, JR., Circuit Judge

Hon. ROBERT A. SPRECHER, Circuit Judge

RICHARD LEE OWEN, II, ) Appeal from the United

Petitioner-A ppellant, ) States District Court

) for the Northern

No. 79-2546 Vs. ) District of Indiana,

) South Bend Division.

JACK DUCKWORTH, Warden, ) No. 8-79-98

Respondent-A ppellee. ) Allen Sharp, Judge.

ORDER

The petitioner-appellant, Richard Lee Owen II, appeals

from the denial of his pro se petition for a writ of habeas

corpus without a hearing.! In the district court, Owen

urged seven grounds for relief. However, only two of these

are pursued on appeal. Owen now claims only: (1) that he

was denied a fair trial because of juror misconduct; and (2)

that in-court identification testimony should have been

suppressed because it was tainted by impermissibly

suggestive, pre-trial identification procedures and

publicity.

‘Although Owen appeared pro se below, in this appeal he is represented

ably by a professor at, and four students of, the Valparaiso University

School of Law.

A-12

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A-13

Pursuant to the agreement of the parties, this case was

submitted for decision without oral argument under

Fed.R.App. P. 34(a) and Circuit Rule 14(f). Upon

examining the briefs and the record, we have decided that

oral argument shall be heard regarding the first ground

for relief set forth above.2 The remaining claim is

submitted according to the parties’ agreement.

I.

Owen was convicted after a lengthy jury trial of

committing a felony while armed with a dangerous or

deadly weapon and sentenced to a term of imprisonment of

twenty-seven years, which he currently is serving at the

Indiana State Prison in Michigan City, Indiana. The

charges against him arose out of the shooting of Maurice

Woods, a South Bend, Indiana policeman who was shot by

the driver of an automobile of which he had made an

investigatory stop. Throughout the state court proceedings,

Owen represented himself, assisted by lay assistant David

Spencer and Public Defender Anthony V. Luber. With

Owen again appearing pro se, the Indiana Supreme Court

affirmed his conviction without oral argument, rejecting

both of the claims at issue in this appeal. Owen v. State, 381

N.E.2d 1235 (1978).

Having exhausted his available state court remedies,

Owen filed the instant petition for a writ of habeas corpus.

The district court received and examined the entire state

court record but denied Owen’s request for an evidentiary

hearing. The petition was denied on December 6, 1979. The

district court granted a certificate of probable cause and a

timely notice of appeal was filed.

2The date and time allocations for argument shall be set according tothe

rules and regular procedures of the court. Thus argument will not

necessarily be heard by this panel.

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A-14

II.

Owen contends that in-court identification testimony

should have been suppressed because it was tainted by

impermissibly suggestive pre-trial identification procedures

and publicity. The present test for the admissibility of in-

court identifications where pre-trial identification

procedures were employed is set forth in Stovall v. Denno,

388 U.S. 293, 320 (1967). If under the “totality of the

circumstances” a pre-trial confrontation “was so

unnecessarily suggestive and condusive to irreparable

misidentification” as to deny due process, then a habeas

petitioner is entitled to his requested relief.

To apply this test, a three-step analysis is employed.

First, the pre-trial procedure is examined to determine if it

was suggestive. If it was, the reviewing court considers

whether any unusual or exigent circumstances justified its

use. Finally, the court determines whether the

identification was reliable. See e.g., United States ex rel.

Kirby v. Sturges, 510 F.2d 397, 402-03 (7th Cir.), cert.

denied, 421 U.S. 1016 (1975).

Reliability is the linchpin. The factors to be weighed in

determining reliability include: 1) the opportunity of the

witness to view the criminal at the time of the crime; 2) the

witness’ degree of attention; 3) the accuracy of any prior

description of the criminal; 4) the level of certainty

demonstrated at the confrontation; and 5) the time between

the crime and the confrontation. Against these factors must

be weighed “the corrupting effect of the suggestive

identification itself.” Manson v. Brathwaite, 432 U.S. 98,

114 (1977): Neil v. Biggers, 409 U.S. 188, 199-200 (1972).

Applying the foregoing analysis to the facts of this case, we

‘ conclude that habeas relief was properly denied on this

claim.

Owen challenges a pre-trial videotaped line-up which

was viewed by three witnesses (including the victim) who

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A-15

identified Owen at trial. Owen claims that the line-up was

unnecessarily suggestive because he “was the only one

wearing glasses which was asked to take them off, only two

of the six had glass on at all.” In addition, Owen alleges that

all of the participants in the line-up, except him, had tatoos

to which they pointed.‘ These factors did not render the

line-up unduly suggestive.

Moreover, even if we agreed with Owen that the line-up

was impermissibly suggestive, habeas relief still would not

be warranted on this claim. An extensive discussion is

unnecessary. To us the record reveals that the three

witnesses’ identifications bore sufficient indicia reliability.

The inconsistencies in the witnesses’ previous descriptions

and the other matters upon which Owen relies were

8These witnesses also saw photographs of Owen which were in the

newspaper and which were shown to them by police during their

investigation. However, Owen does not directly challenge the

suggestiveness of these procedures, although he does claim that the

cumulative effect of these viewings tainted the witnesses’ in-court

identifications. As discussed in the text, we find that the witnesses’

identifications were sufficiently reliable to satisfy the requirements of

due process.

‘This argument was properly presented below in Owen’s Memorandum.

See Montes v. Jenkins, 581 F.2d 609 (7th Cir. 1978), appeal after

remand, No. 79-1983 (July 25, 1980).

In the state court Owen also argued that, as counsel for himself, he

should have been present when the videotape was shown. This

argument is alluded to but not stressed here. On this point, Duckworth

has the better argument. It would have been extremely suggestive for

Owen to have been present when the videotape was shown. The

procedures employed here were an acceptable accomodation of Owen’s

right to counsel, see United States v. Wade, 388 U.S. 218 (1967), and the

practicalities of pro se representation.

5This is especially true of the crucial identification witness, Officer

Woods, the victim. He first glimpsed the criminal at night in a

restaurant whose manager had called the police because a male

customer was acting suspiciously. The customer fled upon the arrival

of Officer Woods, who followed the man’s car closely, losing sight of it

only momentarily, and eventually stopped it. Woods asked for the

man’s driver’s license. At trial, he recalled that the license bore Owen’s

\

°°?

A-16

properly left as matters of weight to be by the jury.® See

Lewis v. United States, 417 F.2d 755, 760 (D.C. Cir. 1969),

cert. denied, 397 U.S. 1058 (1970).

IT IS ORDERED that oral argument be set on the juror

misconduct claim.

Insofar as the district court denied habeas relief upon

Owen’s identification claim, the judgment is AFFIRMED.

name. The two were together for approximately two minutes while

Woods searched the car. They stood only three feet apart with Woods

holding a flashlight pointed towards the driver when Woods noticed

that the man was holding a gun. Thereafter, the man shot Woods three

times in the elbow and chest. At trial, Woods was certain that Owen

was the man who shot him, recognizing Owen’s voice as well as his face.

6The slight differences in the witnesses’ descriptions and their variance

from Owen’s appearance at trial probably are attributable to the fact

that the criminal was disguised with make-up, a wig and padding.

Nevertheless, each of the identification witnesses was quite sure that

Owen was the man they saw.

7%

*?

United States District Court

NORTHERN DISTRICT OF INDIANA

SOUTH BEND DIVISION

RICHARD LEE OWEN, II, )

Petitioner)

)

)

)

v. No. S 79-98

JACK DUCKWORTH, Warden, )

)

Respondent)

MEMORANDUM AND ORDER

Petitioner, Richard Lee Owen II, is a state prisoner

confined in the Indiana State Prison at Michigan City,

Indiana. On October 15, 1976, Owen was convicted of

attempt to commit a felony while armed in the St. Joseph

Circuit Court, the Honorable John Montgomery, judge

presiding, for which he was sentenced to a determinate

term of 27 years imprisonment. Thereafter, a direct appeal

was taken to the Indiana Supreme Court which

unanimously affirmed the judgment of the trial court in a

published opinion, Owen v. State of Indiana, ___ Ind. ___.,

381 N.E. 2d 1235 (1978). Petitioner filed a petition for

rehearing which was denied on March 13, 1979. The full

state record of proceedings was filed with this Court on

June 19, 1979, and has been carefully and fully examined.

Owen alleges that he was denied a fair trial because the

jury was not sequestered and one of the jurors was

threatened during the trial, because the state trial court

did not grant his motion to dismiss either the charge of

assault and battery with intent to kill or attempting to .

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4

A-18

commit a felony while armed, that the state did not prove he

was over the age of sixteen at the time the crime was

committed, that witness identification was “tainted” by a

suggestive lineup, that he was denied the right to present

evidence to the jury concerning sentencing, and that he was

denied a fair hearing on appeal because he proceeded pro

se. Each of the issues in this petition were presented to the

Indiana Supreme Court on appeul except the question of

whether he was denied a fair hearing on appeal because of

his pro se status. That proposition was asserted in the

memorandum in support of Owen’s petition for rehearing.

Petitioner contends that he was denied a fair trial

because his request for sequestering the jury was denied.

Jury sequestration is not fundamental or a constitutionally

guaranteed right. Young v. State, of Alabama, 443 F. 2d 854

(5th Cir. 1971, cert. den., 92 S. Ct. 1202, 405 U.S. 970, 31 L.

Ed. 2d 251 (1971). Failure to sequester a jury during atrial

does not warrant habeas corpus relief absent any showing

of prejudice. Shrader v. Riddle, 401 F. Supp. 1845 (D.C. Va.

1975); U.S. ex rel. Jacques v. Hilton, 423 F. Supp. 895 (D.C.

N.J. 1976). No such showing of prejudice is found by this

Court after a review of the record.

The petitioner contends that the jury should have been

sequestered because of the publicity in the case. He made

this motion at the beginning of the trial and renewed the

motion at the beginning of each day’s proceedings.

However, where, as here the trial judge voir dired the

jurors every morning concerning the question of publicity

and the jurors denied reading, seeing, or hearing any

publicity concerning the trial, there is no showing of

prejudice and no constitutional error in not sequestering

the jury.

The state court trial judge firmly and clearly

admonished the jurors that they were to obstain from

reading or listening to anything about the trial or from

talking with anyone about it. Nowhere in the record or in

the petitioner’s allegations can it be found that a juror

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A-19

disobeyed this admonition. Petitioner made a pretrial

motion of sequester the ‘ury. Petitioner submitted to the

court newspaper clippings which he contended were

prejudicial. He did not indicate to the court that such

articles were either inaccurate or unfair.

The threshold question facing a court when confronted

with such a claim of in-trial prejudicial publicity is

whether the publicity rises to the level of substantial

prejudicial material. United States v. Pomponio, 517 F. 2d

460 (4th Cir. 1975), cert. den., 423 U.S. 1013, 96S. Ct. 448, 46

L. Ed. 2d 386 (1976). This question is “committed to the

trial court’s discretion.” Gordon v. United States, 438 F. 2d

858 (5th Cir. 1971), cert. den., 404 U.S. 838, 92 S. Ct. 63, 30 L.

Ed. 2d 56 (1971). This Court, in reviewing the trial court’s

determination of such an issue, must make an independent

evaluation of the circumstances at trial and must give

deference to the state trial court’s informed discretion.

Sheppard v. Maxwell, 384 U.S. 333, 86S. Ct. 1507, 16 L. Ed.

2d 600 (1966); United States v. Anderson, 165 U.S. App.

D.C. 390, 509 F. 2d 312 (1974), cert. den. 420 U.S. 991, 95S.

Ct. 1427, 43 L. Ed. 2d 672 (1975). After a review of the

pertinent portions of this record, this Court agrees with the

state trial court’s determination that the press clippings

could create a degree of prejudice harmful to the petitioner

if read by the jurors. Moreover, this Court finds that the

state trial judge acted with the utmost care in performing

his duty to insure a fair trial. The state court trial judge

recognized his responsibility to further investigate any

adverse effect in-trial publicity may have had on the jurors.

The jurors were questioned at the beginning of each trial

day whether they had read or listened to any accounts of the

trial outside the court. Such an investigation is necessary

once prejudice is determined to be a possibility. United

States v. Thomas, 463 F. 2d 1061 (7th Cir. 1972).

The trial court judge followed the procedure outlined in

this circuit when a claim of prejudicial in-trial publicity is

made. Margoles v. United States, 407 F. 2d 727 (7th Cir.

7s

A-20

1969), cert. den., 396 U.S. 8338, 90 S. Ct. 89, 24 L. Ed. 2d 84

(1969). An inquiry was made each day as to whether any

juror had read or heard the prejudicial publicity. On all the

days of trial, but one, a collective negative answer was

given to the court’s inquiry. On those days, the trial court

was not required to proceed further with any questioning.

Margoles, supra. On one day during the trial, asingle juror

responded to the court’s inquiry stating she saw a

newspaper headline concerning the case the previous

evening but that she did not read any of the paper. The trial

judge, at that time, excused all the jurors but the woman

who saw the headline and individually examined her

outside the prescence of the other jurors concerning any

possible prejudice. After this full and complete

examination the trial judge found no prejudicial effect asa

result of reading the headline. This Court agrees both with

the procedure utilized by the trial court and with its

finding that no prejudice existed. The possibility of

prejudice from reading a single headline was too remote to

require anything more than the admonition which was

firmly and repeatedly given by the trial court. United

States v. Jones, 542 F. 2d 186 (1976). Therefore, having

made no showing of any prejudice, this court finds that the

state trial court acted within its discretion in refusing to

sequester the jury and that it did so without error of any

constitutional magnitude. Petitioner’s claim on this issue is

denied.

Petitioner further contends that one of the jurors

received a “threatening” phone call and that at least some of

the other jurors were advised of the call. The trial judge

was informed of the call the day after it occurred and he

spoke with the juror who advised him that she was capable

of reaching a fair and impartial verdict based on the

evidence. Petitioner contends there was no juror

misconduct because the juror who received the call is

alleged to have told other jurors of the call. Juror

misconduct has frequently been found not to constitute a

constitutional defect warranting habeas relief. Hinojos v.

ns

A-21

Black, 462 F. 2d 621 (9th Cir. 1972), cert. den., 93S. Ct. 948,

409 U.S. 1126, 35 L. Ed. 2d 258 (1972). Whether there was

juror misconduct or improper influence is a fact to be

determined by the trial judge, and federal district courts,

in habeas proceedings, will not generally review a trial

court’s alleged abuse of discretion, Wade v. Jones, 192 F.

Supp. 333 (W.D. Ky. 1961). No state court found a basis for

granting a new trial under state law. The Indiana Supreme

Court found that juror misconduct had not been established

conclusively. Owen v. State, supra, at 1241. After an

extensive and careful review of both the in court and in

chambers record, this court finds no constitutional error in

the state court ruling. The state court trial judge conducted

a post-trial hearing on the juror misconduct issue and

found no error. That judge was careful not to invade the

province of the jury. No error of any constitutional

magnitude can be found by this Court. Moreover, there has

been made no showing by petitioner of any fraudulent

concealment of bias, nor any other exceptional

circumstances that would justify deviation from the rule

that affidavits of jurors cannot be used to impeach their

verdict. McDonald v, Pless, 238 U.S. 264, 35S. Ct. 783, 59 L.

Ed. 1300 (1915); Bateman v. Donovan, 131 F. 2d 759 (9th

Cir. 1942).

The petitioner, Richard Lee Owen II, has requested that

this Court order an evidentiary hearing at which some or

all of the members of the state court jury which convicted

him of attempt to commit a felony while armed may be

questioned. The exact need for such a procedure as it

pertains to jury members has not been made explicit by

plaintiff. Neither has the plaintiff been explicit as to the

proposed areas of evidentiary inquiry. Neither does the

plaintiff specify whether he wants to question some or all

members of said jury.

The state court jury was convened by the St. Joseph

Circuit Court on October 4, 1976, and was discharged by

the judge of that court on October 15, 1976. Three years

-%

*.

A-22

have elapsed and this Court has no way of knowing how

many of that jury are now available to testify.

There are a number of theoretical as well as practical

impediments to the plaintiff's request.

First, there is the general proposition that the testimony

of a jury may not be used to impeach a verdict. This rule has

long been a part of the law of Indiana. Spannuth v.

Cleveland C.C. & St. L. Ry. Co., 196 Ind. 379, 148 N.E. 410

(1925); Waltz v. Noble, 73 Ind. App. 608, 123 N.E. 218

(1919); Weal v. Stone, 33 Ind. App. 112, 69 N.E. 968 (1904);

Jessop v. Werner Transp. Co., 147 Ind. App. 408, 261 N.E.

2d 598 (1970); Anderson v. Taylor, 154 Ind. App. 217, 289

N.E. 2d 789(1972); Brunson’s Estate v. White, 157 Ind. App.

211, 299 N.E. 2d 186 (1973). It has been applied in criminal

cases in Indiana. Turczi v. State, 261 Ind. 273, 301 N.E. 2d

752 (1973); Laine v. State, 154 Ind. App. 81, 289 N.E. 2d 141

(1976); Critchlow v. State, 264 Ind. 458, 346 N.E. 2d 591

(1976). It is also generally followed in the United States

Court. McDonald v. Pless, 238 U.S. 264, 35 S. Ct. 783, 59 L.

Ed. 1300 (1915). See also, U.S. v. Dioquardi, 492 F. 2d 70

(2d Cir. 1974), cert. den., 419 U.S. 873; and Miller v. U.S.,

403 F. 2d 77 (2d Cir. 1967). In the United States Courts

these basic ideas have been embodied in Rule 606(b) of the

Federal Rules of Evidence. Under Rule 606(b) a jury

member may testify or submit an affidavit as to the

existence of any extraneous prejudical influence but not as

to whether or not that influence operated upon him or

another juror. Under all these authorities the petitioner

cannot now call jurors to impeach the verdict resulting in

his state conviction.

Second, there has been an ongoing concern and practice

in this Court in regard to any post-verdict exparte

interrogation of jurors. See U.S. v. Winters, 434 F. Supp.

1181 (N.D. Ind. 1977), affirmed 582 F. 2d 1162 (7th Cir.

1978). Winters and the authorities cited reflect the very

narrow confines of such post-verdict interrogation by the

same court that originally convened the jury. The strict

A-23

limits established by this Court in Winters and affirmed on

appeal are both theoretically sound and practically

necessary. One of the value concerns is the opportunity for

and the prevention of post-verdict harrasment of jurors.

Third, this Court did not convene the jury in question but

same was convened by a circuit court of general

jurisdiction in the State of Indiana whose judge has had

long experience in the area of criminal litigation both on

and off the bench. Under 42 U.S.C. 2254 there must be

basic respect for the proper procedural functioning of the

state courts. Indeed, the same is constitutionally mandated.

There is very little authority which mandates that a United

States District Court order the members of a state court

jury who convicted a defendant who has now become a

petitioner in a claim under 42 U.S.C. 2254 to appear and

testify in such proceeding. This Court is aware of Tobias v.

Smith, 468 F. Supp. 1287 (W.D. N.Y. 1979). This single

authority does not mandate the action here requested. With

all deference to the author thereof the record in this case

simply does not require the procedure there adopted. At

least, the better procedure would be for the United States

District Court to remand the case to the state court that

originally convened the jury in question and thereafter to

confer on that state court authority to conduct any

necessary interogation of such state court jurors. However,

the record in this case contains nothing to indicate the need

to remand this case to the St. Joseph Circuit Court for such

a procedure.

Fourth, the jury interrogation procedure requested

cannot be used to simply relitigate issues already fully and

correctly litigated in the state courts. In this case the

selection, composition and conduct of the jury in question

has been extensively litigated in the courts of the State of

Indiana. The final decision of the Supreme Court of Indiana

on these issues is correct and should not be disturbed in this

proceeding. A fuller statement on these issues appears

elsewhere in this memorandum.

Sy Pee

A-24

In this regard, paragraph 12A Ground One of the

petitioner’s complaint states:

“The defendant was denied a fair trial since one of the

jurors in the trial was threatened and revealed said

threat to the other jurors during the deliberation

against the direct order of the trial judge not to tell

anyone about the threat.

FACTS: During the first week of a two week jury trial

one of the jurors, a woman 68 years old, received a

threating (sic) phone call at her home. She called the

police and an in-camera session was held the next

morning. The defendant moved for a mistrial, denied,

the judge told the juror not to discuss the threat with

anyone on the jury. After the trial was over the

defendant asked the public defendant’s investigator to

question the other jurors to see whether they had been

threatened. The investigator reported and testified at

the Motion to Correct Errors Hearing that all of the

jurors knew about the threat and in fact admitted that

Mrs. Tolley, threatened juror, had told them during

deliberation. When Mrs. Tolley was questioned she

admitted doing this and in fact said she told

specifically the two jurors who were holding out. The

jury in this case was out some twenty hours.”

‘These allegations have all the earmarks of an attempt to

relitigate in an evidentiary hearing these jury issues. These

issues can be and are presented to this Court fully in the

entire state record which is present and has bee» carefully

examined. Specifically these issues were thoroughly gone

into as shown at pages 2266-2299 of the state transcript in

proceedings held on April 26, 1977.

Fifth, and finally, this requested procedure cannot and

must not be used as a fishing expedition in an attempt to

discover some kind of vaguely alleged jury misconduct.

Before this plaintiff or any plaintiff similarly situated

can justify even preliminary consideration for such an

extraordinary post-verdict juror interrogation there must

be considerable specificity, preferrably by affidavits or

A-25

some other form of sworn testimony as to the exact nature

of any alleged juror misconduct and the precise nature of

the inquiry requested. Such a plaintiff must shoulder a

very heavy burden given all of the five categories of

considerations here outlined. After the plaintiff has

sustained the initial burden here described the United

States District Court must then determine the procedure to

be followed including the decision to remand to the state

court or to conduct such hearing. The United States

District Court should also carefully outline the procedures

to be followed in such inquiry.

In this case this plaintiff has in no way met the initial

burden which could trigger a post-verdict jury

interrogation. In fact, the plaintiff has not even come close

to meeting such burden. The record in no way requires such

an inquiry. It is doubtful if the present state of the record

would even permit such an inquiry.

Weighing all of the factors here discussed the plaintiff's

request for post-verdict juror interrogation is now in all

things DENIED. .

Petitioner alleges constitutional error because he was

charged with assault and battery with intent to kill and

attempting to commit a felony while armed. At trial

petitioner contended that assault and battery with intent to

kill was a lesser included offense of attempting tocommita

felony while armed and that, therefore, one of the charges

should be dropped. He was acquitted of assault and battery

with intent to kill and convicted of attempting tocommita

felony while armed.

The procedure followed by the prosecution here was

specifically allowed by state law. Carter v. State, ____ Ind.

——, 361 N.E. 2d 145 (1977); IC 35-12-1-1. The Indiana

Supreme Court found that even assuming arguendo that

assault and battery with intent to kill was a lesser included

offense, that there was no harm tothe petitioner because he

was convicted of only the greater offense. Owen v. State, 381

rt tr ree PR ne eg ne ee = re renee

A-26

N.E. 2d at 1241. Under Indiana State law, acquittal of an

alleged lesser offense does not require acquittal on the

alleged greater offense when they are tried together. Webb

v. State, 284 N.D. 2d 812 (1972). Thus, the Indiana Supreme

Court has reviewed this question and found that as a matter

of state law there was no error or harm to the petitioner.

Interpretation of state law is a question for the state courts.

Silva v. Cox, 351 F. 2d 61 (10th Cir. 1965); Ratley v. Crouse,

365 F. 2d 321 (5th Cir. 1966). There is nothing in this state

procedure which is inconsistent with the fundamental

principales of liberty and justice and petitioner was not

harmed by the trial court decision on this question.

Petitioner next contends that one of the elements of

commission of a felony while armed with a deadly weapon

was that he be over the age of sixteen and that “no evidence

was presented during the trial which would prove this

element.” (petition at 5a). This Court finds petitioner’s

contention to be totally without merit. Petitioner, is in fact,

contending that the evidence presented at this criminal

trial was insufficient to obtain a conviction. The critical

inquiry upon review for this Court is whether, after

viewing the evidence in the light most favorable to the

prosecution, any rational trier of fact could have found the

essential elements of the crime beyond a reasonable doubt.

Jackson v. Virginia, __ U.S. ___, 99 S. Ct. 2781, 2789,

—___. L. Ed. 2d ____ (1979). After a complete review of the

record on this matter, this Court finds that any rational

trier of fact could indeed have found this age element of the

crime beyond a reasonable doubt.

Petitioner’s testimony established for the trial court and

jury that Owen was over the age of sixteen at the time he

shot officer Woods:

DIRECT EXAMINATION BY THE DEFENDANT

Q. Would you please give your full name and spell your

last name?

A. Richard Lee Owen, II. O-w-e-n.

A-27

Have you have been convicted of a felony?

Yes. When I was seventeen years old I stole a car, took

it across the state line, and did time in federal prison

because of it. I’ve also been convicted of attempted

escape. (Tr 1997)!

Now, this Tony Genovese, where did you first meet

him?

At the Federal Penitentiary in Petersburg, Virginia.

What year would that have been?

1965.

> ©

> o> ©

* * * * &

How old was Tony in 1965?

He was approximately about two years younger than

I, so I would say approximately eighteen. (Tr. 2012-

2013)

This testimony, by the petitioner himself, establishes

that he was over the age of sixteen in 1976. Thus, this Court

finds the petitioner’s testimony, before the jury, establishes

that he was well over the age of sixteen on July 10, 1976,

when he shot officer Woods.

Petitioner contends that the in court identification made

by three witnesses had been tainted by a suggestive lineup.

Owen contends that the lineup was suggestive because he

was the only one who was wearing a suit and because only

two of the six persons were wearing glasses, and he was the

only one asked to take his glasses off. A video tape of the

lineup was shown to prospective witnesses. The suspect

who shot officer Woods was wearing a black wig, had used

makeup on his face, and was not wearing glasses at the time

he was observed by the witnesses other than Officer Woods.

> ©

‘Page numbers correspond with those found at the bottom of the page in

the center.

_ '

Ld

A-28

At trial the petitioner argued that the identification

procedure was tainted without specifically supporting that

position. The Indiana Supreme Court found that:

“Appellant, at trial, merely argued in conclusory

fashion that the procedure was ‘tainted.’ No evidence

was presented to support any reason for suppression of

the testimony of the identifying witnesses....The

errors alleged here are thus wholly specious.” 381 N.E.

2d at 1240.

On the issue of whether eyewitness identification at the

trial was tainted by pretrial identification procedures, this

Court may make an independent finding on the basis of the

entire record when the record is adequate for that purpose.

U.S. ex rel Albertini v. Butler, 391 F. Supp. 213 (D.C.N.Y.

1975). However, even assuming arguendo, that the

procedures were tainted, Owen would not be entitled to

habeas relief because the in court identification was

independent of, and not tainted by the lineup. United States

v. Wade, 388 U.S. 218, 87 S. Ct. 1926, 18 L. Ed. 2d 1149

1976'!; Wong Sun v. United States, 371 U.S. 471, 83 S. Ct.

407, 9 L. Ed. 2d 441 (1963); United States ex rel Tyrrell v.

Jeffes, 420 F. Supp. 256 (E.D. Pa. 1976). Under the

guidelines set forth in Wong Sun there was an independent

basis for the in court identification. Review of the evidence

establishes that each of the witnesses had the opportunity to

observe the suspect at close range, at least two of the three

conversed with the suspect, and each of the witnesses was

able to identify Owen as the suspect based on features not

disguised by the wig and makeup.

Given the basis for identification by these witnesses there

was sufficient independent basis for their testimony even

assuming arguendo that the lineup was tainted.

1The requirement in Wade that counsel be present at the lineup would

not apply here where the defendant had waived counsel and was

proceeding pro se. It would have been a very suggestive procedure if

the defendant had been present when the video tape of the lineup had

been shown to the witnesses.

A-29

Petitioner also contends that he was denied a fair trial

because he was denied the opportunity to present evidence

after the verdict concerning sentencing. He contends that

he should have been allowed to present such evidence

because the jury was responsible for setting the sentence

and that in a bench trial the trial judge would have

considered a presentence report prior to sentencing.

A presentence report is prepared by a probation officer,

IC 35-50-1A-9 (formally IC 35-8-1A-9), so that even in the

case of a bench trial the defendant himself does not have the

right to present evidence on sentencing. The Indiana courts

have held that defendants have no inherent right to have a

presentence report considered before sentencing. This is a

privilege which the legislature granted defendants tried

before a judge and which has been necessarily and properly

denied defendants tried before a jury because of

differences in procedure which exist between jury and

bench trials. See Pulliam v. State, ___ Ind. ___, 345 N.E.

2d 229 at 241-243 (1976).

There is no constitutional right for a defendant in a

criminal trial to present evidence on sentencing and there

is nothing constitutionally infirm in Indiana’s rule

concerning use of presentence reports only where there was

a bench trial.

Petitioner’s last contention is that he did not receive fair

hearing on appeal because he had exercised his

constitutional right to proceed pro se. The only evidence he

asserts in support of this proposition is that the Indiana

Supreme Court referred to his pro se status in its opinion.

A review of that opinion establishes that the Indiana

Supreme Court took this occasion to reaffirm their practice

of accepting pro se appeals and the reasons why they have

chosen to exercise discretion in doing so. Owen v. State, 381

N.E. 2d at 1238, 1239. There is absolutely nothing in this

opinion which indicates that petitioner did not receive a

fair hearing on appeal because of his pro se status.

Furthermore, this petitioner, while proceeding pro se,

recently achieved a reversal of another criminal conviction

in the Indiana Court of Appeals. See Owen v. State, ___

Ind.App. __, 388 N.E. 2d 292 (1979). This decision

indicates that pro se appellants, including Owen, are not

deprived of a fair hearing in Indiana appellate courts.

A closing word should be said in compliment to the

manner in which the Honorable John W. Montgomery,

Judge, St. Joseph Circuit Court, handled this most difficult

case. He did so at all times with the utmost care and strick

the precisely correct balance of firmness and fairness. No

constitutional error was committed by the Indiana State

Judiciary in this case that requires this Court to grant the

requested writ. The writ is therefore DENIED.

All relief requested under 28 U.S.C. 2254 is now

DENIED. Enter December 6, 1979.

/s/ Allen Sharp

JUDGE, UNITED STATES

DISTRICT COURT

cc: R. Owen

K. Hilles

order book

United States District Court

For THE

NORTHERN DISTRICT OF INDIANA

CIVIL ACTION FILE No. S79-98

RICHARD LEE OWEN, II,

JUDGMENT

VS.

wee Nee Nee ee”

JACK DUCKWORTH, Warden

This action came on for (hearing) before the Court,

Honorable Allen Sharp, United States District Judge,

presiding, and the issues having been duly (heard) and a

decision having been duly rendered,

It is Ordered and Adjudged that Petitioner take nothing

by his complaint and this case is dismissed.

Dated at South Bend, Indiana, this 6th day of December,

1979.

RICHARD E. TIMMONS

Clerk of Court

BY /s/ Terese M. Hinkle

Deputy Clerk

A-31