Opposition Brief — Dean v. Duckworth

Office-Supreme Court,

FILED

~ JAN 25 1985

(3) ALEXANDER L. STEVAg,

No. 84-1008 on

IN THE

Supreme Court of the United States

OCTOBER TERM, 1984

KEITH DEAN and CORNELIUS HARPER

Petitioners,

vs.

JACK DUCKWORTH,

Respondent.

BRIEF IN OPPOSITION TO 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

Office of Attorney Genera’

219 State House

Indianapolis, Indiana 46204

Telephone: (317) 232-6332

Attorneys for Respondent

Central Publishing Company. Inc. Indianapolis, IN 46206

QUESTIONS PRESENTED FOR REVIEW

1. Whether the Seventh Circuit correctly followed

decisions of this Court in concluding that there was no

denial of rights under the Sixth Amendment when counsel

jointly represented co-defendants who presented

interwoven alibis as their only defense and against whom

the evidence of guilt is identical.

2. Whether the Seventh Circuit correctly found

sufficient evidence of guilt based upon positive

identification by the victim.

3. Whether the Seventh Circuit correctly found no

denial of the right to a speedy trial when all delays (except

two weeks) were at the request of Petitioners’ counsel and

with the knowledge of Petitioners and their parents.

TABLE OF CONTENTS

Page:

Questions Presented for Review ................... i

Ree iin wice 6 aascvinsdxavasbavcaunnous iv

IE OE IN SIN i ovo cikbcccbecsceiceanbeceean 1

Bin I I hn ok oo 6k bcd cbusdakecntoss 1

B. Course of Proceedings Below ............... 2

C. Statement of the Facts...............eee00- 2

Reasons for Disallowance of the Writ

I. THE SEVENTH CIRCUIT CORRECT-

LY FOLLOWED DECISIONS OF

THIS COURT IN CONCLUDING

THAT THERE WAS NO DENIAL OF

RIGHTS UNDER THE SIXTH

AMENDMENT WHEN COUNSEL

JOINTLY REPRESENTED CO-

DEFENDANTS WHO PRESENTED

INTERWOVEN ALIBIS AS THEIR

ONLY DEFENSE AND AGAINST

WHOM THE EVIDENCE OF GUILT

1D SEER PUAS cbr akdcectnapeundnas’

Il. THE SEVENTH CIRCUIT CORRECT-

LY FOUND SUFFICIENT EVI-

DENCE OF GUILT BASED UPON

POSITIVE IDENTIFICATION BY

FER VOCUS cicseccicceeicesieten

ii

III.

Conclusion

THE SEVENTH CIRCUIT CORRECT-

LY FOUND NO DENIAL OF THE

RIGHT TO A SPEEDY WHEN ALL

DELAYS (EXCEPT TWO WEEKS)

WERE AT THE REQUEST OF

PETITIONERS’ COUNSEL AND

WITH THE KNOWLEDGE OF

PETITIONERS AND THEIR

PESO cctecsrwbwsdcgecescesisece

tne ates eee eoee ee ensceneeaeeeeeeocaesveveee see

ili

TABLE OF AUTHORITIES

Cases: Pages:

Barker v. Wingo, 407 U.S. 514 (1972) ............... 9,10

Cuyler v. Sullivan, 446 U.S. 335 (1980) ............ 5,6,7

Dean v. State, 433 N.E.2d 1172 (Ind. 1982) ......... 2

Dean v. State, 441 N.E.2d 457 (Ind. 1982) .......... 2

Holloway v. Arkansas, 435 U.S. 475 (1978) ......... 5

United States v. Mandell, 525 F.2d 671 (7th Cir. 1975),

cert. denied 423 U.S. 1049 (1976) ............... 6

Statutes:

1

nile eg a, fg SAREE OO OTT Oy Pia ry Che Ore

iv

No. 84-1008

IN THE

Supreme Court of the United States

OCTOBER TERM, 1984

KEITH DEAN and CORNELIUS HARPER

Petitioners,

vs.

JACK DUCKWORTH,

Respondent.

BRIEF IN OPPOSITION TO PETITION

FOR WRIT OF CERTIORARI TO THE UNITED

STATES COURT OF APPEALS FOR THE

SEVENTH CIRCUIT

Respondent Jack Duckworth, Superintendent, Indiana

State Prison, respectfully prays this Court deny issuance of

a writ of certiorari to the United States Court of Appeals

for the Seventh Circuit (hereafter Seventh Circuit),

thereby refusing to review the decision entered by that

Court in cause numbers 83-1664 and 83-1765 (consolidated)

on July 31, 1984.

STATEMENT OF THE CASE

A. Nature of the Case

This petition arises from a decision of the Seventh Circuit

reversing an order granting relief by way of habeas corpus

in an action filed under 28 U.S.C. § 2254.

B. Course of Proceedings Below

Petitioners were found guilty of kidnap, rape, and

robbery, and were sentenced to terms of life, twelve years,

and not less than ten years nor more than twenty-five years

(R.139-40). Petitioners appealed their convictions and

sentences to the Supreme Court of Indiana, which Court

unanimously affirmed on April 14, 1982. Dean v. State, 433

N.E.2d 1172 (Ind. 1982). The opinion was supplemented on

November 12, 1982, because the issue of sufficiency of the

evidence was not directly addressed in the first opinion.

Dean v. State, 441 N.E.2d 457 (Ind. 1982).

The petition for writ of habeas corpus was filed on July 9,

1982, in the United States District Court for the Northern

District of Indiana, South Bend Division. The District

Court found eight of the nine issues raised to be “wholly

without merit,” but granted relief on the issue of conflict of

interest on the part of trial counsel for petitioners.

Respondent appealed from the decision of the District

Court and petitioners cross-appealed. The Seventh Circuit

consolidated the appeals.

After oral argument the Seventh Circuit issued its

opinion reversing the District Court as to its grant of relief

on the issue of conflict of interest and affirmed the District

Court as to denial of relief on the other grounds raised.

The petitioners sought rehearing, with a suggestion for

rehearing en banc. Rehearing was denied on October 22,

1984.

C. Statement of the Facts

The prosecutrix left a restaurant for home shortly after

midnight of September 12, 1977 ( Transcript of state court

proceedings [hereafter “R”], p. 798). Two individuals in a

car pulled into her driveway and asked for directions

(R.800). After she returned to her own car, the driver

pulled a “very large gun” and ordered her out of her car

2

(R.800-01). Each of the individuals had a weapon (R.802).

After being driven some distance from her home, the

prosecutrix was raped in the back seat of the car (R.805).

Fifteen dollars was stolen from her purse (R.803).

Following the rape, the prosecutrix climbed into the front

seat, between the two, because she was less likely to be shot

there (R.805).

The entire incident lasted more than an hour (R.807),

along well-lighted streets (R.915-16), with the prosecutrix

in the front seat of the car with both assailants for part of

the drive (R.805) from where she could observe from a very

close distance and from where she could see the face of each

at all times (R.837). The identification of the petitioners in

court was unhesitating and positive (R.809-10). All pre-

trial identifications were positive (R.907-08). The only

persons ever identified as the assailants are the petitioners

(R.972-73).

The alibi presented by petitioners—each of whom

testified at trial—was that each was at his own home at the

time of the crimes. Each claimed to remember the

particular date because Harper had been in a fight on a

school bus and had a “busted mouth” and swollen lip

(R.1129, 1166). This was sought to be supported by several

other witnesses (R.983, 1011, 1016, 1033, 1059, 1069-70,

1086, 1092). The evidence as to the fight was presented not

only to support the alibi, but also to show the “inaccuracy”

of the positive identification, as the prosecutrix observed no

swollen lip on either of her attackers. To counter this

presentation, the State called the principal of Harper’s

high school. He established the date of the school bus

incident as September 7, 1977 (R.1196, 1200), five days

orior to the crimes. Since the injury took four or five days to

heal (R.1129), the swelling was gone by the time of the

crimes.

Prior to trial, each petitioner was given an ex parte

polygraph examination by trial counsel (R.548). The

results showed that one of the petitioners knew something

3

about the incident and were inconclusive as to the other

(R.548). Prior to trial, the results were discussed with the

petitioners (R.576), and with the parents or guardians of

the petitioners (R.575). Prior to trial, counsel held sixteen

conferences with petitioner Harper’s father and six

conferences with petitioner Dean’s grandmother (R.531-

32).

Immediately prior to trial, the following colloquy

occurred:

BY THE COURT:

oF OP ©

er Fr

Which of you is Cornelius Harper?

I am.

Stand by the microphone. You are Cornelius

Harper?

Yes.

In this cause, you and your co-defendant, Keith

Dean, who is present in Court are each

represented by the same attorney. There is a

possibility when two defendants charged with the

same offense are represented by the same

attorney that a conflict could develop because

your defense and that of your co-defendant might

be different. That may not be this case. In any

event, are you satisfied that both you and your co-

defendant can be represented by the same

attorney?

Yes.

You waive any possible conflict that might

develop in that regard?

I don’t understand your question.

Are you stating now in Court that you are

satisfied that your defense and your co-

defendant’s defense are similar or the same and

can be handled by one attorney?

Yes.

Of Keith Dean:

Q. Are your answers the same or different?

A. They are the same.

(R.772).

REASONS FOR DISALLOWANCE OF THE WRIT

I.

THE SEVENTH CIRCUIT CORRECTLY

FOLLOWED DECISIONS OF THIS COURT IN

CONCLUDING THAT THERE WAS NO DENIALOF

RIGHTS UNDER THE SIXTH AMENDMENT WHEN

COUNSEL JOINTLY REPRESENTED

CO-DEFENDANTS WHO PRESENTED

INTERWOVEN ALIBIS AS THEIR

ONLY DEFENSE AND AGAINST WHOM THE

EVIDENCE OF GUILT IS IDENTICAL

The Seventh Circuit followed the standard set by this

Court:

In order to establish a violation of the Sixth

Amendment, a defendant who raised no objection

at trial must demonstrate that an actual conflict

of interest adversely affected his lawyer’s

performance. Cuyler v. Sullivan, 446 U.S. 335,

348 (1980).

In the present case, no issue was raised until well after trial.

Compare Holloway v. Arkansas, 435 U.S. 475 (1978).

“Conflict” denotes hostility, collision, competition,

encounter, opposition, incompatibility, strife, antagonism,

inconsistency. Conflict is absent in this case.

Petitioners rely upon two «reas to show the claimed

conflict—pre-trial polygraph examinations and the alibi.

The polygraph examinations and results are not in

evidence. The results were characterized by trial counsel as

indica.ing that one petitioner knew something about the in-

cident and were inconclusive as to the other (R.548).

5

After the pre-trial polygraph examination results were

received by counsel, they were discussed with both Dean

and Harper (R.576). Counsel talked to the parents about the

possibility and effect of any conflict resulting from joint

representation (R.575, 576-78). Petitioners were kept

advised as to all aspects of their case, including evidence,

witnesses, jury, and their own testimony (R.615). Prior toa

change in lead counsel due to surgery, representation of

new lead counsel was fully discussed with petitioners

(R.596). Despite this full knowledge of all aspects of the

case—including the polygraph results—neither petitioners

nor their parents expressed concern about a potential

conflict. When there is no suggestion of a potential conflict,

the courts assume that the lawyer and his clients knowingly

accept whatever conflict may exist. Cuyler v. Sullivan,

supra, at 347; United States v. Mandell, 525 F.2d 671, 675-

77 (7th Cir. 1975), cert. denied 423 U.S. 1049 (1976).

Petitioners suggest in their petition that counsel may

have been precluded from rigorously cross-examining the

petitioner who had some knowledge. This would have been

foolhardy for counsel (even separate counsel) since

petitioners’ alibis were interwoven. Further, despite

evidentiary proceedings with trial counsel on the stand at

petitioners’ behest, no inquiry was made along these lines.

Having had the opportunity to produce evidence of the

asserted reluctance or inability to probe one of petitioners,

and petitioners having produced no evidence on point, one

can only conclude that no such evidence exists.

The interwoven, joint alibi consisted of petitioners

claiming to be together at the home of friends through the

evening, eventually splitting up each to go to hisown home.

The alibis were not identical because each petitioner

claimed to be in his own home at the time of the crimes.

However, these alibis were supported through testimony of

petitioners and several other witnesses as to the events

earlier. The date was “remembered” by all witnesses

because Harper was allegedly in a fightonaschool bus that

afternoon. Dean described that fight in some detail.

Petitioners and their witnesses also testified to Harper’s

“busted” or swollen lip, not only to support their alibi but

6

also to mount a joint attack on the identification by the

prosecutrix, since the swelling was considerable and she

observed no such swelling. In fact, the school bus incident

was days before the crimes and the swelling was gone by

the time of those crimes.

Further, it must be kept in mind that the evidence

against petitioners is identical. The prosecutrix

immediately and positively identified both petitioners as

her assailants. These are the only two persons whom she

ever identified.

Based upon these facts, the Seventh Circuit correctly

applied the standard set in Cuyler v. Sullivan.

THE SEVENTH CIRCUIT CORRECTLY

FOUND SUFFICIENT EVIDENCE OF

GUILT BASED UPON POSITIVE

IDENTIFICATION BY THE VICTIM

Petitioners assert that the Seventh Circuit failed or

refused to consider what they contend to be strong evidence

of innocence. On the contrary, the Seventh Circuit

considered all of the evidence and thereupon upheld the

convictions. The “evidence” cited by petitioners consists of

some ex parte polygraph examinations conducted after

trial, and certain statements from the brother of one of the

petitioners.

The alleged confession of Richard Pickett and Larry

Harper was not an admission at all. Except for the fact that

the persons making the claim were not the convicted

parties, the claims are little different from the common

defense in many rape cases that the victim consented. This

defense was never raised at trial, and the mere fact of the

timing of the claim (together with the family relationship

as between Larry and Cornelius Harper) makes the story

unbelieveable. That the petitioners could sit in jail

awaiting trial for over five hundred days before the brother

of one of them would come forward with the “truth”

stretches credulity beyond its limits. The attempt to secure

7

the release of Keith Dean and Cornelius Harper by such a

ruse cannot be allowed. That the victim noted the elder

Harper and Pickett as resembling her attackers is not

unexpected. There is no doubt some family resemblance

between the Harpers. It must be kept in mind that the

victim positively identified only two people, the petitioners,

as her attackers. She identified these two immediately and

positively. Despite seeing several persons who had

appearances “similar” to her attackers, the victim

identified only petitioners as her attackers.

The polygraph results are inadmiszible in Indiana.

Further, the State had no opportunity to be present at the

examinations and to determine the conditions under which

they were administered. Finally, there is no indication of

the examinations administered by petitioners’ original

counsel, and if a court were to determine this case based

upon results of inadmissible tests, all of such results should

be in the record.

Innocence is not irrelevant; it is not present in this case.

The victim positively identified petitioners as her

attackers. She identified only the petitioners as her

attackers. The alibi defense presented by the petitioners

was spurious. The evidence of guilt is very strong. All of the

facts point to the guilt of the petitioners, and no admissible

fact points to their innecence. This Court should therefore

deny issuanee of a writ.

THE SEVENTH CIRCUIT CORRECTLY

FOUND NO DENIAL OF THE RIGHT

TO A SPEEDY TRIAL WHEN ALL DELAYS

(EXCEPT TWO WEEKS) WERE AT THE

REQUEST OF PETITIONERS’ COUNSEL AND

WITH THE KNOWLEDGE OF PETITIONERS

AND THEIR PARENTS

The Sixth Amendment guarantees a defendant a right to

a speedy trial. However, the constitutional guarantee is not

an inflexible rule expressed in terms of days or months.

One cannot view a speedy trial claim by looking at a

8

calendar. Instead, one must inquire into the function of the

right in terms of the particular context and case. Barker v.

Wingo, 407 U.S. 514, 522(1972). There are four factors to be

considered: (1) length of delay; (2) reason for delay; (3)

defendant’s assertion of the right; and, (4) prejudice to the

defense function. Barker, at 530. The test is not based upon

merely counting days. The four factors must be weighed

together, along with any other relevant circumstance.

Barker, at 533.

Petitioners assert that the time was excessive and that no

accounting was made of the reasons for delay. These two

complaints are both answered by reference to the

testimony of J. Michael Katz and James E. Daugherty,

petitioners’ trial counsel. The delays were—except for a

two-week period—attributable to the defense. Delays were

caused by waiting for a requested transcript of the hearing

resulting in waiver of juvenile jurisdiction (R.534-35),

depositions (R.535-37), and eye surgery of defense counsel

(R.538, 541). No motion for speedy trial was ever made

(R.586). No motion was made because the prosecution was

ready to go to trial since the filing of the charges, but the

defense was not ready (R.586-88). The only objection made

was to a continuance from April 16, 1979, to April 30, 1979,

which continuance was based upon a congested court

calendar (R.95). Therefore, contrary to the contention of

petitioners, the delays not only are accounted for but are

attributable to the defense. The issue of prejudice likewise

must be resolved against the petitioners because the

reasons for the delays were so that the defense could be

prepared.

Petitioners’ claim of prejudice arises from the fact that

one of them “grew into” the description allegedly given by

the prosecutrix shortly after the crimes. Balancing this is

the fact that there was (1)stipulation (R. 1097) and (2) direct

testimony (R.1162) as to the height and weight of Keith

Dean on the date of the crimes and within six months

thereafter. The point was the subject of so much testimony

that reference to all of the pages in the transcript where

defense counsel dwelled upon this point is virtually

impossible. It was the center of the defense (R.601-03).

9

Defense counsel saw the issue in March of 1978, more than

one year prior to trial, and got a jail official to measure

Dean’s height at that time, and convinced the State to

stipulate as to that measurement.

Petitioners hang their hat primarily upon the

“prejudice” resulting from the growth of one of them. Going

into the consideration of the existence of prejudice is the

question of whether the right to a speedy trial was asserted.

Petitioners urge a totally different approach and contend

that the right was never waived, but the issue in Barker is

assertion rather than waiver. This is so because the failure

to assert the right will make it difficult for a defendant to

prove he was denied a speedy trial. Barker, at 532. This is

so, in part, because assertion of the right is evidence of the

existence of prejudice. Barker, at 531. In Barker, the

defendant hoped to take advantage of the delays. Barker, at

534-35. In the instant case, petitioners took advantage of

their delays by preparing their case, and therefore to assert

the right would have been foolhardy on their part as their

own trial counsel testified (R.586-88).

CONCLUSION

For the foregoing reasons, it is respectfully urged that

the petition for a writ of certiorari be denied.

Respectfully submitted,

LINLEY E. PEARSON

Attorney General of Indiana

David A. ARTHUR

Deputy Attorney General

Attorneys for Respondents

10