Petition for Writ of Certiorari — Duckworth v. Webster

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Poa GS ED

R5-1005 DEC 10 1985

JOSEPH F. SPANIQOL, JR.

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LRN

IN THE

Supreme Court of the United States

OCTOBER TERM, 1985

| JACK DUCKWORTH,

Superintendent, Indiana State Prison

Petitioner,

-ys-

DIRK WEBSTER

Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

LINLEY E. PEARSON

Attorney General of Indiana

ROBERT B. WENTE

Deputy Attorney Genera!

DAVID A. ARTHUR

Deputy Attorney General

Office of Attorney General

219 State House

Indianapolis, Indiana 46204

Telephone: (817) 232-6332

Attorneys for Petitioner

QUESTIONS PRESENTED FOR REVIEW

1. Whether the decision of the Supreme Court of

Indiana wherein it reversed the conviction of Respondent

and remanded the cause to the trial court for retrial,

violated the Double Jeopardy clause of the Fifth

Amendment.

2. Whether the decision of the United States Court of

Appeals for the Seventh Circuit is erroneous for reason that

it abrogates the express legal holdings and factual findings

as set forth in the decision of the Supreme Court of Indiana,

and which are supported by the record of the proceedings

from the trial of Respondent.

3. Whether the decision of the United States Court of

Appeals for the Seventh Circuit is erroneous for reason that

it is in conflict with the decisions of the United States

Supreme Court and other Circuit Courts of Appeal: and

whether different holdings appearing in the decision of the

United States Court of Appeals for the Seventh Circuit are

contradictory, inapposite, and in discord with each other.

TABLE OF CONTENTS

Page

Questions Presented for Review ............000 eee. i

Table of Compete oon 5 ics vs cca knead e cuwts weseacsean il

Table af AwtWoritins . oc cic ccc cacusenssbiaweseeees iil

Oninions Betow...... iiss annavecs caceeeseeusseuenms 2

Et, ee re Ry

Constitutional and Statutory Provisions Involved... 3

Statement of the Case .......csscccccsenceeeeseuaes

A. Nature of the Came os. ccsnccccdiususacduns

B. Course of Proceedings 2... ..cccseccccenccss 3

C. Facts Material to the Consideration of the

Questions Presented ...........ccceeeceeees 4

Reasons for Granting the Writ................6.06. 13

WHETHER THE RETRIAL OF RESPON-

DENT FOLLOWING HIS CONVICTION

VIOLATED THE DOUBLE JEOPARDY

CLAUSE OF THE FIFTH AMENDMENT.. 18

Cometunion . .< orn coc cucu inesesaeeeee eee 29

TABLE OF AUTHOR’ TIES

Cases: Pages:

Arch «. State, 381 N.E.2d 465, (Ind. 1978) .......... 24

Bryan v. United States, 338 U.S. 552, 70 S.Ct. 317

REESE GS 14

Burks vo United States, 547 F.2d 968, (6th Cir.

EE en ee ree ld

Burks +. United States, 437 U.S. 1, 98 S.Ct. 2141

al gE 13,15,18,24,28

Greene v. Massey, 487 U.S. 19, 98 S.Ct. 2151

ee tha ccs Ga Gek erica eenees 15,17,28

Gutierrez v. State, 386 N.E.2d 1207, (Ind. 1979) ..... 23

Justices of Boston Municipal Court e Lyden, — U.S.

ER) eee 16

Montgomery ¢. State 439 N.E.2d 646, (Ind. App. 1982)... 28

Moten v. State, 8380 N.E.2d 544, (Ind. 1978) ......... 24

Patterson v. State, 268 Ind. 55, 324 N.E.2d 482

el eh ak Ga kis Aen 404s 000800 6,9, 10,12

Rose vr. State, 446 N.E.2d 598 (Ind. 1983) .......... 21,22

Sosa «. State, 215 So. 736 (Fla. 1968) ............... 15

Stone v. State, 268 Ind. 672, 377 N.E.2d 1872 (1978)... i2

Tapp v. Lucas, 658 F.2d 383 (5th Cir. 1981) ........ 7,28

Tapp v. State, 347 So.2d 974, (Miss. 1977) .......... 17

Tapp v. State, 373 So.2d 1029, (Miss. 1979) ......... 18

Tibbs «. Florida, 457 U.S. 81, 37, 102 S.Ct. 2211,

TS ES ER ae 16,26

United States v. Coward, 669 F.2d 180, (4th Cir. 1982)... 17

United States «. Fiore, 443 F.2d 112, (2nd Cir. 1971)... 17

United States + Harmon, 682 F.2d 812, (9th Cir.

Ens er eA re er ry rk 16

United States « Mandel, 591 F.2d 1847, (4th Cir.

Sree gs cic awae cen biunhe chee 16

Webster vo State, 274 Ind. 668, 413 N.E.2d 898,

i Be ss Lae aa kaka ee 2,5, 18,19,24,27,28,29

Webster vr. State, Ind. ____, 442 N.E.2d 1034, (Ind.

Se nessun eee eee e neces cece e cence ss GyOy 19, 24,27,28

Statutes:

BER Sw: ” Re err ts Tee eS 3

CE Te, cs nda soe ine nee tee 3

Bae (oe. * errr Tree r ye 3

Rule:

Rule 20.2 Rules of the Supreme Court of the United

i ea ce keh Cake Eke sk 3

Rule 17 Rules of the Supreme Court of the United

Ee ee ey Mee ce Seer are 3

Rule 15(o) Indiana Rules of Appe!!ate Procedure ... 28

No.

IN THE

Supreme Court of the United States

OCTOBER TERM, 1985

JACK DUCKWORTH,

Superintendent, Indiana State Prison

Petitioner,

-ys-

DIRK WEBSTER

Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

Petitioner Jack R. Duckworth, Superintendent, Indiana

State Prison respectfully prays this Court issue a writ of

certiorar! to@i@waew the judgment of the United States

Court of Appeals for the Seventh Circuit (hereafter

seventh Circuit) entered in cause number 83-3096 on July

11, 1985 and Amended on September 12, 1985, which

reversed the judgment of the United States District Court

for the Northern District of Indiana, South Bend Division

(hereafter District Court), the Seventh Circuit thereby

granting relief by way of habeas corpus to a person in

custody pursuant to a conviction before an Indiana State

court,

Petitioner is the Superintendent of the Indiana State

Prison, Michigan City, Indiana, and is the person having

custody of the Respondent. The real party in interest in this

habeas corpus action is the State of Indiana, through its

Attorney General.

Respondent is Dirk Webster, formerly a prisoner in the

custody of Petitioner by reason of a conviction before the

Lake County, Indiana Superior Court for the crimes of two

(2) counts of murder, for which convictions the Respondent

was sentenced to consecutive forty-five vear terms on each

count.

OPINIONS BELOW

The decision of the Seventh Circuit entered on July 11,

1985, is reported at 767 F.2d 1206 (7th Cir. 1985). The

opinion is set out in the appendix to this petition, beginning

at page A-1. A Petition for rehearing and suggestion for

rehearing in bane was denied on September 11, 1985. The

Order is set out in the appendix to this petition, beginning

at page A-21. On September 12, 1985 the Seventh

Circuits spouts, ordered its previous decision of July 11,

1985 to be amended. The Order Amending the previous

decision of July 11, 1985 is set out in the appendix to this

petition, beginning at page A-22. The decision of the

District Court, entered on November 1, 1983, is reported at

572 F.Supp. 1271 (N.D. Ind. 1983). The opinion is set out in

the appendix to this decision beginning at page A-25.

The decision of the Supreme Court of Indiana reversing

the conviction of the Respondent and remanding the cause

for retrial was entered on December 30, 1980, and is

reported at Webster e State, 274 Ind. 668, 413 N.E.2d 898,

(Ind. 1980), (hereafter Webster J). This opinion is set forth in

the appendix to this petition beginning at page A-30.

The decision of the Supreme Court of Indiana affirming

the conviction and sentence of Respondent following his

retrial was entered on December 14, 1982. and is reported

at Webster «. State. — Ind. , 442 N.E.2d 1084, (Ind.

1982), (hereafter Webster /7). This opinion is set out in the

appendix to this petition beginning at page A-40.

JURISDICTION

The jurisdiction of this Court is invoked pursuant to 28

U.S.C. §1254 and Rule 17 of the Rules of this Court.

The decision of the Seventh Circuit denying the Petition

for Rehearing was entered on September 11, 1985. 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(¢) and Rule 20.2.

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

Che Fifth Amendment to the Constitution of the United

States provides in part as follows:

.nor shall any person be subject for the same offence

to be twice put in jeopardy of life or limb:...

The Fourteenth Amendment to the Constitution of the

United States provides, in pertinent part, as follows:

section 1. ...No State shall. . deprive any person of

life, liberty, or property, without due process of law.

— +

STATEMENT OF THE CASE

A. Nature of the Case

Chis petition arises from the reversal of the District

Court Judgment, which judgment had denied relief to the

Respondent in a habeas corpus action filed by a state

prisoner under 28 U.S.C. $2254

3. Course of Proceedings

’ petit ay or writ Ot] nate a COrDpnus Wa ; raya.

hstrict { ourt ay, ] 1H\ 1] }OR8 ()> . 1] ; wwe? t hye

District Court entered its order, direcv ag the Petitioner to

submit to the Distriet Court the record of the proceedings

from Respondent's state trials, and to within thrity days,

show cause why the District Court should not issue a writ of

habeas corpus. On August 12, 19838 the Petitioner filed its

Return to Order to Show Cause. On November 2, 1983, the

Distriet Court entered its memorandum order and

judgment entry, denying relief to the Respondent.

Appendix, page A-25.

On November 18, 19838 the District Court granted

Respondent a Certificate of Probable Cause. Thereafter

briefs were filed with the Seventh Cireuit, and oral

argument was heard on April 23, 1985.

On July 11, 1985 the Seventh Circuit entered its order

reversing the judgment of the District Court, and

remanding the case te the District Court with instructions

to issue a writ of habeas corpus ordering Respondent's

immediate and unconditional release from custody. On

July 18, 1985 the District Court entered its order, granting

a writ of habeas corpus and ordering the immediate and

unconditional release of Respondent.

On July 25, 1985 Petitioner filed its Petition for

Rehearing And Suggestion For Rehearing In Banc. On

September 11, 1985 the Seventh Circuit entered its order

denying the Petition for Rehearing. Appendix, page A-21.

On September 12, 1985 the Seventh Circuit, swa sponte,

amended its previous decision of July 11, 1985. Appendix

page A-22.

(C. Facts Material to the Consideration of the Questions

Presented

Respondent was initially convicted by jury trial. Upon

direct appeal the Supreme Court of Indiana reversed the

conviction and remanded the cause for retrial. Upon

retrial, the jury again convicted Respondent. The second

conviction was affirmed by the Supreme Court of Indiana.

The sole issue submitted to the Seventh Circuit below and

to this Court is whether the Supreme Court of Indiana in

Webster 1 reversed Respondent's conviction for reason of

trial court error, or for the reason of insufficiency of

evidence to support the conviction. The answer to this

question hinges completely upon the admissiblity of the

previously recorded statements of Aurelius James Allen.

(hereafter Allen) as presented by the State during trial.

If the previously recorded statements of Allen were

admissible as substantive evidence then the essential

elements of the charged crimes were proven. However, if

the statements were admissible only for the purpose of

impeaching Allen’s in-court testimony, then the record of

the proceedings at trial was void of other sufficient

evidence to prove the essential elements.

Contrary to the express holdings of the Supreme Court of

Indiana in Webster J and Webster 1/, and contrary to the

decision of the District Court, the Seventh Circuit has

declared that the decisions in Webster / and Webster 1] were

actually premised upon the lack of sufficient evidence to

support the conviction, and therefore remand for retrial

was contrary to the Fifth Amendment.

The direct testimony of Allen during Respondent's

second trial describes a “drug deal” gone sour which

resulted in the murders of Betty DeBowles (hereafter

DeBowles) and Robin Thomas (hereafter Thomas).

Respondent, his father — O. D. Webster, Garland Hicks

(hereafter Hicks), and Allen were at least four members of

a group engaged in the distribution for profit of illegal

drugs. On the evening of December 16, 1977 0. D. Webster

directed Allen and Hicks to apprehend Thomas, who was

indebted to the group as a result of failing to pay for

previously supplied drugs. Allen and Hicks were directed

to present Thomas to O. D. Webste* to settle the matter.

Allen and Hicks apprehended Thomas and a friend of

Thomas’ — DeBowles, and presented them to O. D.

Webster. Thereafter Respondent, O. D. Webster, Hicks and

Allen placed Thomas and DeBowles in a car and drove toa

secluded area where the murders were perpetrated.

During Respondent’s second trial Allen described the

grizzly details as follows: Thomas was taken from the car

by Respondent. Thomas struggled with Respondent, so

Hicks intervened and restrained Thomas. Respondent then

turned and fired three shots from a revolver at DeBowles

who was still in the car — one bullet striking her in the head

resulting in her death. Meanwhile Thomas had broken free

and was running away. Respondent and Hicks pursued

Thomas. After they caught Thomas and again restrained

him, Hicks found a broken glass bottle and slashed Thomas’

throat while Respondent held him. Respondent then

grabbed Thomas by his head and submerged his head ina

nearby drainage ditch until Thomas was dead.

A review of the testimony of Allen during Respondent’s

first trial is essential to resolve the issues of this appeal.

During the State’s case in chief it called Allen as a witness.

From the beginning of the direct examination of Allen it

was apparent that Allen was refusing to honor his

obligations pursuant to the plea agreement to testify

against the Respondent. The State began a long line of

inquiry regarding Allen’s plea agreement and his

previously recorded statements which directly implicated

Respondent. Allen testified that he, along with Respondent,

O. D. Webster, and Garland Hicks had been indicted for the

murders of Thomas and DeBowles. Allen testified that he

had entered into a plea agreement pursuant to which he

was to testify against Respondent and the other

perpetrators, in turn for areduced charge of manslaughter

and a sentence of six years. Allen testified that during his

plea agreement hearing he remembered that the judge had

instructed him that he must testify against the other

defendants. Early during Allen’s testimony, counsel for the

Respondent, sensing that Allen might be recalcitrant,

approached the bench and stated while citing “Patterson,

(Patterson v. State, 263 Ind. 55, 324 N.E.2d 482 (1976)),

prior inconsistent statements is not only admissible for

purposes of impeachment, but also (sic) substance of

evidence.” The defense requested that the court instruct the

jury that Allen’s testimony would only be admissible to

measure credibility, and not for substantive purposes

(R.181-182)!.

The Court responded indicating that at the present stage

of the trial the objection was premature for »ason that the

state was only laying a foundation (R.182)

As the examination of Allen continued, when confronted

with questions concerning Respondent’s implication in the

murders, Allen’s general mode of response was that he had

no recollection of Respondent’s involvement. However,

through diligent proding, the State was able to elicit bits

and pieces of testimony in which Allen not only recalled

some details of the murders, but recalled making previous

statements.

For instance Allen testified that he had a.45 caliber gun

with a red handle on the evening of the crime (R.190).

Allen testified that he remembered having been shown a

gun during a previous appearance in court (R.191).

Allen testified that he had pistol whipped Robin Thomas

with a “.45” the night of the crime(R.197). Allen testified he

remembered being in the house, (Robin Thomas’ house) on

the evening of the crime (R.198).

Allen further testified that he was at a service road at

Cline and Chicago, (streets in Gary, Indiana) in the early

morning hours of December 17, 1977 (R.207). (The morning

following the date of te crime).

The State inquired if Allen remembered stating

previously that the Respondent had fired three shots

through the open passenger’s door at DeBowles. Allen

responded, “I couldn’t see Dirk Webster.” (R.208).

'The record of the proceedings from Respondent's first trial is

designated by “R.” followed by the appropriate page number.

Allen admitted that in the context of previous testimony

that he had testified that he had wiped the “inside and the

handles,” (of the car) to wipe off any fingerprints. Allen

specifically testified that he remembered wiping off the

handles (R.208-209). Allen stated DeBowles was present

(R.209).

Allen further testified that he remembered previously

stating in court that “Robin Thomas was floating in the

water, so Harpo went in and pulled him up by the hair to

make sure he was dead.” (R.213).

Allen testified that Thomas was there (the scene of the

crime.) (R.215). Allen specifically testified that he

previously appeared in court for the bail hearing of O. D.

Webster; and gave a statement; that he responded to

questioning by Mr. Thiros, (prosecutor) with answers

(R.221).

Allen specifically testified that he remembered giving a

statement to Mr. Ed Reardon on December 1, 1978 at the

Lake County jail (R.222, 223). Alien testified that he was

under oath and gave answers (R.221-222). (Deposition of

Allen taken December 1, 1978).

Allen further testified he recalled giving a typed

statement to a Detective Shannon (Detective for Gary,

Indiana Police Department) in the presence of his attorney

(R.222).

Allen again testified that he “more than likely” would

have had his .45 caliber gun on the evening of December 16,

1977: that he was near Cline and Chicago Avenue on the

evening of the crime; that DeBowles and Thomas were

present; that he pistol whipped Thomas; and that somebody

told him to wipe the prints off the car (R.244-246).

Allen further testified that DeBowles and Thomas were

definitely present at the scene of the crime and that

Respondent and “Harpo” could have been (R.247).

Up to this point the State had queried Allen only as to his

previously made statements as recorded during Allen’s

guilty plea hearing.

Following this, and upon further direct examination of

Allen, the State managed to elicit admissions by Allen that

he did recall being in court in December of 1978, during the

bail hearing of O. D. Webster and that prosecutor Thiros

had questioned him on the record during that hearing; and

that he further recalled testifying during his deposition

previously taken by prosecutor Reardon.

Allen further affirmed making previous statements

when he recalled that during his previous deposition he had

stated that ne had been at Respondent’s home on many

occasions (R.358).

Although Allen had feigned lapses of memory

concerning most details that would implicate Respondent,

he had nonetheless clearly admitted recollection of making

previous statements during his guilty plea hearing, his

sentencing hearing, the bail hearing of O. D. Webster, and

his deposition.

At this juncture at trial, a full, legal argument occurred

between the State and the counsel for Respondent

concerning the admissibility of the soon to be offered

previously made statements of Allen.

Counsel for Respondent argued that meaningful cross-

examination and confrontation were foreclosed because

Allen had no recollection of his previous statements. The

State responded arguing that pursuant to the holdings of

the Supreme Court of Indiana in Patterson, supra, the

previous statements of Allen were admissible as

substantive evidence.

The State pointed out that in “95 out of 190 questions”

Allen would not respond to, but that the defense’s cross-

examination was “general” (R.388).

The court responded expressing an opinion that the

present case was distinguishable from those referred to by

the State for reason that the witness in Patterson “admitted

that he made the prior statement.” (R.389).

The State countered by arguing that the Court’s

interpretation was not accurate — that Allen had testified

that he recalled being “examined by Mr. Thiros” at the

“Petition to Let Bail,” and that he did remember testifying

in the “previous matter on December 5.” (R.3890-391). The

state bolstered this argument by pointing out that Allen

had responded in part, but that the defense had not cross-

examined as to those responses.

The court stated that “I believe he did respond. Any time

you put a question to. him alone. But when you put a

question involving Dirk Webster, he did not remember.”

(R.394).

After again expressing that the present case was

distinguishable from Patterson, the court stated that it

would defer ruling on the issue (R.395).

Following more testimony of Allen the Respondent again

voiced his objection in the form of a motion to strike

arguing the inability to conduct cross-exaimination of

Allen (R.424-425). Again the State responded arguing its

position that the impeaching evidence under the

immediate circumstances was admissible as substantive

evidence. The State further repeated its argument that the

defense had not seized its opportunity to utilize cross-

exaimination. The State cited specific incidents in which

Allen was responsive, but which there was no cross-

examination (R.425-431):

“Although its buried with a bunch of ‘I don’t knows,’

we have a few ‘yeps’ in there, in terms of actual

testimony.” (R.429) EP)

~ * * *

“He did remember being physically present and

going through the tendering of the statement, but not

remembering what the statement itself said.” (R.431)

The trial court continued to procrastinate and vacillate

agreeing in part to the State’s argument:

You were aware that the State of Indiana was able to

jog his memory on occasion and have him remember,

for example, that he had_ pistol-whipped Robin

Thomas. He was there at Cline Avenue. That Robin

Thomas and Betty DeBowles were there. But when he

told you he simply didn’t remember anything about

either dates, you saw fit to let it go at that point. Mr.

Prosecutor, do you have anything corroborating these

statements of this witness in terms of implicating Dirk

Webster?

(R.434).

Confusing the matter further the trial court cited what it

perceived to be a distinguishing factor in the present case

(R.435-436). The Court then again indicated it would not

presently rule on the issue (R.436).

The next morning the Court stated that it would defer

ruling on the defenses’ motion to strike because it believed

“it would be more proper...to wait until the State has

rested...”

After it had completed all the direct testimony of Allen

and immediately prior to moving for the admission of the

prior statements of Allen the prosecutor approached the

bench and stated “This is deciding Time” (R.450).

Again, the trial court shirked its responsibility as to

ruling on the forthcoming previously recorded statements

of Allen and stated: “Well, no you can proceed...Wehavea

continuing objection.” (R.451).

The State then offered into evidence Allen’s previously

recorded statements-the transcript of Allen’s guilty plea

hearing; the transcript of O. D. Webster’s bail hearing, the

deposition of Allen taken during trial, and a transcript of a

portion of the trial of Garland Hicks (R.451-452). (State’s

Exhibit 18, 19, 20 and 21).

The trial court then addressed the jury informing them

that the transcripts and depositions would be read to them.

The Court never stated as to how such evidence should be

digested by the jury (R.458).

The transcript of Allen’s guilty plea hearing was marked

as State’s Exhibit No. 18, the deposition was marked as

State’s Exhibit No. 19, the transcript from the bail hearing

of O. D. Webster was marked as State’s Exhibit No. 20, a

portion of the transcript of the trial of Garland Hicks was

marked as State’s Exhibit No. 21, and the transcript of the

second half of the trial of Garland Hicks was marked as

State’s Exhibit No. 22 (R.452).

These exhibits were admitted into evidence and read to

the jury (R.454-484).

During a bench conference which immediately followed

the defense inquired of the State if it planned to rest. The

State replied that it did (R.484).

Counsel for Respondent then, again requested that the

Court issue a ruling limiting Allen’s testimony and prior

statements for impeachment purposes only (R.484-485).

The State again unequivocally responded arguing that

the evidence was admissible for substantive purposes

citing Patterson and Stone, (Stone v. State, 268 Ind. 672, 377

N.E.2d 1372 (1978) (R.486). The trial court then posed the

question, “Is it admissible (substantively) even though he

denied making the statement?” The State replied “Maybe

we should go back on the record. My recollection of the

testimony was his—.” (R.486).

Counsel for Respondent interrupted the above debate

between the Court and the State on this issue, and indicated

that it would “rest” (R.487).

The Court in ambiguous terms related to counsel that if

there was no more evidence “we will wait.” “Is that

agreeable to you.”, apparently implying that the Court was

still not willing to make the decisive ruling (R.497).

The following colloquy immediately followed:

BY THOMAS VANES, (Prosecutor):

Again, /’m saying again it has to be given to them right

now, in view of the fact you do not intend to introduce

any evidence. So, we could wait and have that as one of

the final instructions.

BY JAMES FRANK, (Counsel for Respondent):

Well, Your Honor, I would urge that it would be

segregated from the finals. The law is to the effect that

the instruction must be with reference to the testimony

itself (R.481).

BY THE COURT:

You want to rest for the record. You can rest.

BY THOMAS VANES:

Your Honor, the State of Indiana would rest.

BY JAMES FRANK:

At this time, the Defendant rests.

(emphasis added)

(R.487-488).

The trial court then followed by reading to the jury the

subject final instruction which instructed that Allen’s

previously recorded statements were admissible only for

the purpose of impeaching his in-court testimony.

REASONS FOR GRANTING THE WRIT

WHETHER THE RETRIAL OF RESPONDENT

FOLLOWING HIS CONVICTION VIOLATED THE

DOUBLE JEOPARDY CLAUSE OF THE FIFTH

AMENDMENT

This Court’s decision in Burks v. United States, 437 US.

1, 98 S.Ct. 2141 (1978) forms the cornerstone for the

controversy in the instant appeal.

In Burks the defendant was convicted in the United

States District Court of the crime of bank robbery by use of

a dangerous weapon. At trial defendant’s primary defense

was that he suffered mental insanity at the time of

commission of the crime and therefor lacked the mental

capacity to formulate the “mens rea” for the crime.

Defendant presented the testimony of three expert

witnesses in substantiation of his argument. The

prosecution responded with the testimony of two expert

witnesses. ;

On appeal, Burks v. United States, 547 F.2d 968, 970 (6th

Cir. 1976) the Court of Appeals held it was the burden of the

prosecution to show beyond a reasonable doubt that the

defendant was sane at the time of the commission of the

crime. The court held that the prosecution had failed to

carry its burden.

The Court of Appeals followed by remanding the case

back to the District Court to decide after balancing the

“equities” as required by Bryan v. United States, 388 U.S.

552, 70 S.Ct. 317 (1950), if the defendant should be retried.

The defendant appealed arguing that because of the

insufficiency of the evidence at trial as to an essential

element of proof the Court of Appeals had no alternative

but to order acquittal. Defendant maintained retrial would

subject him to “Double Jeopardy” in violation of the Fifth

Amendment.

At 98 S.Ct. 2144 this Court specifically held the issue to

be that of reversal for insufficiency of the evidence.

It was clear from the record at trial that the prosecution

had ample opportunity to present evidence pertaining to

the sanity issue, and had in fact seized the opportunity and

presented the testimony of expert witnesses and several

eyewitnesses. Nowhere was it argued or noted that the

prosecution had evidence which had been precluded by a

court ruling. Footnote 4 appeared at the bottom at 98 S.Ct.

2144:

There is no claim in this case that the trial court

committed error by excluding prosecution evidence

which, if received, would have rebutted any claim of

evidentiary insufficiency.

At 98 S.Ct. 2149 this Court explained the difference

between insufficiency of the evidence, and court error

which negated the prosecution’s “one fair opportunity” to

offer evidence:

Rather, it is a determination that a defendant has

been convicted through a judicial process which is

defective in some fundamental respect, e.g., incorrect

receipt or rejection of evidence, incorrect instructions,

or prosecutorial misconduct. When this occurs, the

accused has a strong interest in obtaining a fair

readjudication of his guilt free from error, just as

society maintains a valid concern for insuring that the

guilty are punished.

Immediately following the Court characterized

insufficiency of the evidence:

The same cannot be said when a defendant’s conviction

has been overturned due to a failure of proof at trial, in

which case the prosecution cannot complain of

prejudice, for it has been given one fair opportunity to

offer whatever proof it could assemble.'” Moreover,

such an appellate reversal means that the

government’s case was so lacking that it should not

have even been submitted to the jury.

(rootnote omitted)

In other decisions this Court has made it clear that retrial!

following a conviction does not violate principles of double

jeopardy.

In Greene v. Massey, 437 U.S. 19, 98 S.Ct. 2151 (1978), a

decision entered the same day as Burks, supra, this Court

found that a Florida Supreme Court’s decision, dealing

with asimilar double jeopardy question, (Sosa v. State, 215

So. 736 (1968)) was confusing because the per curiam

opinion found there to be insufficient evidence, while a

concurring opinion found there to be trial court error.

Faced with a state appellate court’s legal holding that

could be read as either “insufficiency” or “trial court error”,

or a combination of both, this Court did not find the Florida

court’s order to be in violation of the Double Jeopardy

clause. Instead this Court remanded the case to the Circuit

Court with a suggestion that the issue be certified to the

Florida court for clarification of its rationale.

In Tibbs +. Florida, 457 U.S. 31, 37, 102 S.Ct. 2211, 2216

(1983), this Court held that the Double Jeopardy clause did

not preclude retrial following a reversal based on “the

weight of the evidence” made in “the interest of justice.”

In Justices of Boston Municipal Court v. Lyden, U.S.

—_—, —., 104 8.Ct. 1805, 1814 (1984) this Court held only

an “unreserved” holding of “insufficiency” will preclude a

retrial upon reversal:

In Burks, supra, we recognized that an unreversed

determination by a reviewing court that the evidence

was legally insufficient likewise served to terminate

the initial jeopardy.

Decisions emanating from other circuit courts of appeal

have found consistently that following a conviction retrial

is barred only where the lone issue on appeal is the

sufficiency of the evidence.

In United States v. Mandel, 591 F.2d 1347, 1371-1372 (4th

Cir. 1979) the cirgerit court ordered retrial where an appeal

of a conviction alleged both trial court error and

insufficiency of the evidence.

In United States v. Harmon, 632 F.2d 812 (9th Cir. 1980)

the Ninth Circuit on a previous review had stated that

when ignoring the consideration of evidence which had

been erroneously admitted at trial, the evidence remaining

was insufficient to sustain a drug conviction.

Upon second review, 632 F.2d at 814 the court amended

its previous opinion and held that court error in failing to

suppress evidence does not reach the sufficiency question

or allow the prosecution a fair opportunity to present all of

its evidence:

The holding necessarily implied by this modificaton

is that the Double Jeopardy Clause does not bar retrial

when reversal is based on the improper admission of

evidence.

The reasoning underlying the Supreme Court's

decision in Burks supports this result. Reversal! for

evidentiary insufficiency constitutes a decision that

the government failed to prove the guilt of the accused.

Reversal for failure to suppress evidence involves only

a determination that the trial process was defective in

a material respect, and implies nothing as to the

sufficiency of the evidence of guilt of the defendant.

In United States v. Fiore, 443 F.2d 112, 116 (2nd Cir.

1971) the Second Circuit dealt with a similiar set of facts

wherein on appeal following a conviction the testimony ofa

state’s witness was determined to be inadmissable. The

defendant argued that his retrial would be a violation of

double jeopardy:

The Second Circuit disagreed:

Furthermore, no one can be sure that Bennett’s

attitude at asecond trial will be the same as at the first.

The record does not disclose the length of his New

York sentence; as he approaches the end of it or if he is

now or soon becomes eligible for parole, the prospect of

a federal sentence for contempt may have a more

chastening effect.

“Jury confusion” has also been deemed proper

justification for reversing a conviction and remanding the

cause for retrial. United States v. Coward, 669 F.2d 180,

183 (4th Cir. 1982).

The case of Tapp v. Lucas, 658 F.2d 383 (5th Cir. 1981)

follows much of the same scenerio as Greene, supra. In

Tapp the defendant was convicted in Mississippi of the

murder of his son based largely upon the testimony of his

then wife, the mother of the victim.

Upon direct appeal of the conviction to the Mississippi

Supreme Court, (Tapp v. State, 347 So.2d 974, 977 (Miss.

1977) the court held that in accordance with Mississippi

law the wife’s testimes» was inadmissible and

incompetent.

Tapp was retried and convicted this time by the use of the

testimony of his ex-wife. (Subsequent to the date of the first

trial Tapp’s wife had obtained a divorce.) Tapp appealed

the second conviction, (Tapp v. State, 373 So.2d 1029 (Miss.

1979)) arguing that the second trial resulted in a double

jeopardy violation because his conviction was initially

reversed by the Mississippi Supreme Court for the reason

of insufficiency of evidence. Upon second appeal, at 373

So.2d 1031 the Mississippi Court held that despite its

language on first appeal, the first conviction was reversed

due to trial court error.

Tapp then applied to the Federal District Court,

requesting a writ of habeas corpus based upon double

jeopardy which was granted. Upon appeal, the Fifth

Circuit reversed and based its decision on Burks, supra and

Greene, supra and held that the ultimate determining

factor is the state court which made the decision:

Following Greene, we also defer to the state court's

characterization of its previous opinion. Because the

Mississippi Supreme Court made clear that Tapp’s

first conviction was reversed for trial error, the issue

pretermitted by Burks and Greene is not presented in

this case, and Tapp’s second trial was not precluded by

the double jeopardy clause.

658 F.2d at 385.

One thing is crystal clear, the Supreme Court of Indiana

found that the evidence as presented by the State and as

reflected in the record of the proceedings from trial, would |

have been sufficient to justify Respondent's conviction, but

for the final jury instruction:

This case, as presented at trial, would have been

sufficient, if believed by the jury, except for the

limitation on the use of Allen’s prior testimony.

Webster 1 413 N.E.2d at 902 (Appendix page A-30).

ee ae

The Seventh Circuit while ignoring the express language

in Webster 7 and Webster 17 has in a broad and sweeping

analysis deduced that the Supreme Court of Indiana

reversed Respondent's conviction only because the trial!

court withheld its ruling on the subject evidence until after

both parties had rested. This is what the Seventh Circuit

claims the Supreme Court of Indiana meant when the

Indiana Court held that tix State had been deprived of “one

fair opportunity” to present all of its evidence. A literal

comparison of the Seventh Circuit's paraphrasing and the

actual holdings of the Supreme Court of Indianain Wedstey

/ reveals glaring discrepencies.

First the Seventh Circuit interprets the Indiana court's

handling of the subject jury instruction:

The court did not specify what “other available proof”

the prosecution could have offered had the ruling been

made earlier, nor did the court indicate that the trial

court's instruction was erroneous,

(Emphasis added). (Appendix page A-12).

The Seventh Circuit continued its interpretation:

First, the Supreme Court of Indiana did not hold

expressly in either Webster J or Webster 7] that the

trial court erroneously excluded Allen’s prior

testimony. (Appendix page 4-14).

The following is what the Indiana Court actually stated

in its decision in Webster J:

Up to that point in time the prosecution would have

been warranted to a reasonable degree of /i gal

certainty in believing that this evidence would come in

as part of the substantive case against appellant

Webster under the ruling in Patterson v. State, (1975)

263 Ind. 55, 324 N.E.2d 482, and Stone v. State (1978)

Ind., 377 N.E.2d 1372. Cf. Torrence v. State,(1975) 268

Ind. 202 328 N.W.2d 214.

(Emphasis added) (Appendix page A-38),

20)

Finally the Seventh Circuit concluded that the Indiana

Court had “repeatedly” and “expressly” held that its

reversal was based upon a finding of insufficient evidence:

It is clear that the Supreme Court of Indiana reversed

appellant’s conviction because the evidence was

insufficient to sustain the verdict. The court in Webster

I repeatedly and expressly stated just that. Indeed it

limited its analysis to “one claim that the evidence

presented by the State was insufficient to support a

finding of’ guilt beyond a reasonable doubt.”

(Appendix page A-13).

Reconcile this with the Indiana Court’s actual analysis in

which it cited and applied this Court’s holdings as found in

Burks, supra.:

The United States Supreme Court reversed this aspect

of the case, holding that a second trial is precluded

once a reviewing court has found the evidence legally

insufficient and that the only remedy available to a

reviewing court is a direction of a judgment of

acquittal. The underlying rationale for this approach is

that the prosecution “has been given one fair

opportunity to offer whatever proof it could assemble.

Moreover, such an appellate reversal means that the

government's case was so lacking that it should not

have even been submitted to the jury”. (Original

emphasis). Id. at 2150, 2151.

In the present case we cannot say that the State’s case

was lacking in this sense. This case, as presented at

trial, would have been sufficient, if believed by the

jury, except for the limitation on the use of Allen’s

prior testimony.

(Appendix page A 37-38).

Next the Seventh Circuit cites Indiana case precedent as

handed down after the date of Webster I:

Third, the Supreme Court of Indiana subsequently

held that, when a witness denies having made a prior

statement or cannot remember having made it, the

statement is inadmissable as substantive evidence.

Watkins v. State, _ Ind. ___, 446 N.E.2d 949, 960

(1983); see also Carter +, State, —— Ind. App. —_.,

, 412 N.E.2d 825, 828-31 (1980). In holding as it

did in Watkins, the court did not find it necessary even

to mention its holding in Webster /. The earlier Indiana

cases relied on by the state in its argument in the trial

court in support of the admissibility of Allen’s prior

testimony clearly are distinguishable (citing

Patterson v. State, 268 Ind. 55, 324 N.E.2d 482 (1975)

and Stone v. State, 268 Ind. 672, 377 N.E.2d 1372

(1978).

We conclude that the Supreme Court of Indiana did

not hold that the trial court erred in excluding Allen's

prior statements as substantive evidence, (Appendix

page A 14-15).

The Seventh Circuit begrudgedly fails to notice,

recognize, discuss and/or distinguish the clear language

utilized by the Supreme Court of Indiana e.g.” Up to that

point in time the prosecution would have been warranted as

a reasonable degree of legal certa/nity in believing that this

evidence would come in as part of the substantive case...”

Although the Seventh Circuit finds that the Petitioner had

relied on antiquated Indiana cases which were all

distinquishable, nowhere does the Seventh Circuit mention

or respond to the opinion of the Supreme Court of Indiana

in Rose v. State, —— Ind. », 446 N.E.2d 598 (Ind.1983),

as presented to the attention of the Seventh Circuit in

Petitioner’s briefs.

As Petitioner indicated in their Briefs, Rose was decided

by the Supreme Court of Indiana on March 24, 1983, post-

dating any other decisions cited and relied on by the

Seventh Circuit or the Respondent.

In Rose, the brother of the defendant had dropped the

defendant off near the vicinity at which a murder

subsequently occurred. The defendant had displayed a gun

possessing eight bullets to his brother. The next day the

yy)

defendant called his brother and asked his brother to pick

him up and take him to a bank. Upon picking up the

defendant he again exhibited the gun, but with three less

bullets. Defendant admitted that he might have killed

someone the previous night and appeared to have blood

stains on his shirt.

This information was related by the declarant, (brother)

to the other individuals — one being a homicide detective.

At the defendant’s trial the defendant’s brother refused

° s e °

to testify and disavowed making any precious statements.

On review the Indiana Supreme Court held:

The trial court permitted Captain Haynes and

Sergeant Hoke to impeach Jon Rose regarding the

statements he made to them. Appellant now contends

that the testimonies of these two witnesses were

hearsay and therefore inadmissible. This Court has

held:

In the Case before us, the use of the statements

made by |Codefendantj James is justified for the

purpose of impeaching James. James was in

court, on the witness stand and under oath. The

State brought forth the text of his statements only

after he testified in a manner inconsistent with

them, and therefore they were admissibie in

evidence under the Patterson rule as originally

conceived. They were not therefore inadmissible

as hearsay nor did their admission deny appellant

the right of confrontation.” Stone v. State, (1978)

268 Ind. 672, 377 N.E.2d 1372; see also: Balfour v.

State, (1981) Ind., 427 N.E. 2d 1091; Patterson +.

State, (1975) 263 Ind. 55, 324 N.E.2d 482. The

instant trial court faced the same situation as that

faced by the Stone trial court. We find the trial

judge in Appellant's case to be correct for the

reasons stated in Stone. The trial court acted

properly in regard to this issue.

Rose v. State, 446 N.E.2d at 601.

The above holding succinctly provides that a prosecutor

in the face of a turncoat witness and the loss of important

evidence may introduce the witness’ prior statements as

substantive evidence if the declarant is on the witness

stand.

In its brief to the Seventh Circuit the Petitioner pointed

out other Indiana cases, which also provoked no comment

by the Seventh Circuit. In Montgomery v. State, — — Ind.

App. : . 439 N.E.2d 646, 648 (1982) the Indiana

Court of Appeals dealt with the recalcitrant witness Issue:

In Patterson v. State (1975), 263 Ind. 55, 324 N.E.2d

482 our Supreme Court adopted the rule that vut-of-

court assertions were admissible as substantive

evidence where the out-of-court asserter Was present

at trial as a witness and subject to cross examination. !

Subsequent decisions have applied the rule whether or

not the witness denied the statement or denied

recollection of the out-of-court statement (citations

omitted). (footnote omitted)

Also going unmentioned was the case of Gutierrez +.

State, ____ Ind - , 886 N.E.2d 1207, 1210 (Ind 1979) in

which the Surpreme Court of Indiana dealt with the

admissability of prior, recorded statements of a witness:

The next assignment of error relates to the

admission of co-defendant McCall’s out-of-court

statement set out in Issue I supra. McCall testified that

he did not recall making the prior inconsistent

statement.

* * *

On appeal, appellant concedes that McCall’s earlier

statement was admissible under Patterson «+. State

(1979), 263 Ind. 55, 324 N.E.2d 482, but contends that

the statement should not have been admitted as

substantive evidence. This contention is in error.

Where, as here, the out-of-court declarant is present in

court, it cannot be said that the truthfulness of the out-

of-court assertions rests upon the credibility of

someone not then present and subject to cross-

examination. /d. at 263 Ind. 58, 324 N.E.2d 484. Thus,

one of the primary reasons for the application of the

old hearsay exclusionary rule is missing: the

unsusceptibility of the evidence to cross-examination.

Flewallen v. State (177), Ind., 868 N.E.2d 239, 241.

(See also, Arch v. State, —— Ind. —__,___., 381 N.E.2d

465, 468 (Ind. 1978); Moten v. State, —— Ind. —___, —_-_., 880

N.B.2d 544, 546 (Ind. 1978) in accord).

Neither a reveiw of the actual holding in Webster J and

Webster II, or former and subsequent Indiana case law on

the issue, supports the Seventh Circuit’s finding that the

previously recorded statements of Allen could only be

admissable for impeachment purposes.

On September 12, 1985 the Seventh Circuit amended its

previous decision by deleting a portion of the decision that

was patently contrary and in discord with this Court's

decision in Burks, supra, and the decisions of all other

circuit courts reporting on the issue. Within the

Amendment the Seventh Circuit poses two hypothetical

cases. The first is where the evidence submitted by the

prosecution at trial, which results in a conviction, is upon

appellate review determined to be legally inadmissiable.

The Seventh Circuit concludes retrial would not be barred.

The second hypothetical is the case where the prosecution

presents crucial evidence which the trial judge erroneously

excludes from consideration by the jury, but the jury

nevertheless convicts based upon the excluded evidence.

Here, the Seventh Circuit states that reversal and retrial

would “not necessarily” be barred. These holdings comport

with this Court’s rulings in Burks, supra., and furthermore

the second hypothetical exactly represents the facts in the

instant appeal.

Although the amending language appears to be a fair

interpretation. of the Double Jeopardy clause, the

remaining sections of the decision are rampant with

contrary and inconsistent results.

je)

For instance the following language remains:

The state argues that the evidence was insufficient

because the trial court erroneously excluded

prosecution evidence. The state therefore contends

that appellant’s conviction was reversed for trial! error

rather than for insufficient evidence. We believe that

to state this proposition is to reject it. Clearly,

appellant did not seek, nor could he have obtained,

reversal of his conviction on the ground that the court

excluded prosecution evidence. There can be no doubt

that appellant’s conviction was reversed for

insufficient evidence and for no otner reason.

(Appendix page A 18-14).

All of the following, conflicting, passages are found in the

decision of the Seventh Circuit:

Insuch asituation we hold that, regardless of whether

a trial court comm /ts error that results in prejudice

only to the prosecution, if the conviction is reversed for

insufficient evidence the reviewing court is barred by

the double jeopardy clause from ordering a retrial.

(Appendix page A-17.)

* * * *

“Trial error”, in the double jeopardy analysis, clearly

means error that prejudices the defendant, not the

state. (Appendix, page A-17.)

* xX * *

... The state attempts to distinguish Burks by arguing

that the insufficiency of the evidence in that case was

not caused by trial error. The Court stated in a footnote

in Burks that “There is no claim in this case that the

trial court committed error by excluding prosecution

evidence which, if received, would have rebutted any

claim of evidentiary insufficiency.” 437 U.S. at 5n.4.

The Court did not explain in Burks what difference

this might have made in the result. In Sanabria +.

United States, 437 U.S. 54 (1978), however, decided the

same day as Burks, the Court held that an erroneous

evidentiary ruling that led to an acquittal for

insufficient evidence barred on double jeopardy

grounds a subsequent prosecution on the same charge.

Hd. at 68-69. The footnote in Burks quite plainly was

intended only to distinguish the factual settings of the

two cases. (Appendix page A-17).

s* *» *

_. Savabria precludes carving an exception out of the

Burks rule on the basis of an alleged “trial error” that

results in insufficient prosecution evidence.

(Appendix A-18.)

Contrary to the above holdings of the Seventh Circuit, an

appellate court should be free to determine what factors

might have provoked any “insufficiency” including trial

error or fundamental error. If an appellant raises such an

issue, the state court may review the issue in its enfire and

complete context. A court is not required to view such issues

with blinders or tunnel vision.

Next, the fact that a cause has been reversed and

remanded for retrial following a conviction as compared to

a retrial following an acquittal is a crucial, distinguishing

factor when applying the Double Jeopardy clause. The

general rule is that an appellate reversal of a conviction

may be followed by anew trial. 7/bbs, supra, 457 U.S. at 39-

1, 102 S.Ct. at 2216-2218.

The Seventh Circuit’s decision lastly attempts to

characterize the prosecutor during trial as condescending

to the “mental thoughts” of the trial judge.

The Seventh Circuit points out that the trial court

indicated without ruling that it bel/eved the evidence was

not admissable for substantive purposes.

Within the Amendment the Seventh Circuit states

further that:

The most the state can say is that the prosecutor

thought, wrongly as things turned out, that he had

offered sufficient evidence. The prosecutor did his best

to wring substantive evidence from Allen and Allen’s

prior statement, but he failed. He knew through out

the trial that reliance on the prior statement for this

purpose Was chancy. (Appendix page A-24.)

In fact the record of the proceedings reflects that the

prosecutor repeatedly objected and argued as to the

admissability of thesubject evidence, and in fact instructed

the judge after he had offered the evidence that the judge

was then legally obligated to rule on the evidence at that

time. (R.450). The prosecutor could do no more. Clearly, a

proponet of evidence, absent a court ruling to the contrary

is Warranted in assuming that his evidence will be included

as all other evidence-as substantive evidence. Apparently,

the Seventh Circuit would require the proponent to

absurd as such a requirement would be, the trial record

reflects that the prosecutor realizing the critical nature of

the subject evidence did exactly that (R.450). Nonetheless,

the trial court continued without ruling.

The Seventh Circuit’s unbudging conviction that the

Supreme Court of Indiana in Webster J, reversed

Respondent’s conviction solely upon a finding of

insufficient evidence verges on the incredible given the

facts of the case, the Indiana Court’s express holdings in

Webster Land Webster 17, and the other case precedents of

the Supreme Court of Indiana and the Indiana Court of

Appeals.

The Seventh Circuit has circumvented all of this by

framing the decision of the Supreme Court of Indiana as

one holding that the only error committed by trial court

was that it dilitated in ruling on the admissability of the

subject evidence. Although there is language in Webster / to

the affect that, this may have been an additional

consideration there is more than ample justification to

believe that the main concern of the Indiana Court was that

the jury instruction was substantively erroneous in that it

misstated the law as it applied to the previously recorded

statments of Allen.

Even construing the decisions in Webster J and Webster [1

in a liberal light, the most that could be said is that the

decisions are ambiguous or vague.

As such it was within the authority and jurisdiction of the

Seventh Circuit to certify the critical issue, and direct it to

the Supreme Court of Indiana for response and

clarification. Greene, supra. 437 U.S. at 27, 98, S.Ct. at

9155, Tapp vs. Lucas, supra. 658 F.2d at 385.

The lidiana Rules of A ppe Llette Procedure would

accomodate such a “certificaton””.

\ concise review of the decisions of Supreme Court of

Indiana in Webster 7 and Webster 77 evinces that the

Indiana Court was fully cognizant of this Court’s holdings

and tenets as found in Burks, supra. The Indiana Court

stated that if at trial a directed verdict of acquittal was

appropriate because the prosecution had failed to muster

sufficient evidence, then on appeal the reviewing court

could do no more than reverse and order acquittal. The

Indiana Court also stated that when the previously

recorded statements of Allen were excluded, insufficient

evidence remained to sustain the jury’s conviction.

Indiana Appellate Rule 15 (0) sets forth:

Certification of questions of state law from federal courts. When it

shall appear to the Supreme Court of the United States, to any circuit

court of appeals of the United States, or to the Court of Appeals of the

District of Columbia, that there are involved in any proceeding before it

questions or propositions of the laws of this state, which are

determinative of the said cause, and there are no clear controlling

precedents in the decisions of the Supreme Court of this state, such

federalappellate court may certify such questions or propositions of the

laws of this state to the Supreme Court of this state for instructions

concerning such questions or propositions of state law which certificate

the Supreme Court of this state, by written opinion, may answer. {As

amended November 14, 1972, effective November 15, 1972; amended

November 24, 1975, effective January 31, 1976; as amended April 27,

1976. |

Therefore, being fully appraised of these principles the

Indiana Court’s reversal could have only been premised

upon a finding that the trial court’s jury instruction was

substantively erroneous and a misstatement of law.

The Indiana Court in Webster / only intended to rectify a

technical error-that the jury in theory had been

erroneously precluded from considering all of the evidence

as submitted by the State. The Indiana Court was oniy

concerned with the jury’s obvious failure to abide by the

trial court’s instruction, even though the instruction was

erroneous. The decision and order in Webster 7 remanded

the cause for retrial in order to cleanse the record and

afford the State one fair opportunity to submit as

substantive evidence to the jury, the previously recorded

statements of Allen.

The Indiana Court's efforts to assure that Respondent

received a technically, error free trial did not violate the

Double Jeopardy clause of the Fifth Amendment.

CONCLUSION

lor the foregoing reasons, it is respectfully urged that a

writ of certiorari be granted.

Respectfully submitted,

LINLEY E. PEARSON

Attorney General of Indiana

ROBERT B. WENTE

Deputy Attorney General

Davip A. ARTHUR

Deputy Attorney General

Attorneys for Petitioner

APPENDIX

IN THE

United States Court of Appeals

FOR THE SEVENTH CIRCUIT

No. 83-3096

DIRK WEBSTER,

Petitioncer-A ppellant,

JACK R. DUCKWORTH, Warden and

the INDIANA ATTORNEY GENERAL,

Respondents-A ppellees,

Appeal from the United States District Court

for the Northern District of Indiana,

South Bend Division

No. 83-C-306-Allen Sharp, Chief District Judge.

ARGUED APRIL 28, 1985—DECIDED JULY 11, 1985

Before CUMMINGS, Chief Judge, CUDAHY, Circuit, Judge,

and TIMBERS, Senior Circuit Judge.*

TIMBERS, Circuit Judge. The question presented by this

appeal from a judgment denying a state prisoner’s petition

for awritof habeas corpus is whether, following the highest

* The Honorable William H. Timbers, Senior Circuit Judge of the

United States Court of Appeals for the Second Circuit, is sitting by

designation.

A-l

A-2

state court’s reversal of the prisoner’s first degree murder

conviction on the ground of the insufficiency of the

evidence, the double jeopardy clause of the Fifth

Amendment to the United States Constitution barred

retrial of the prisoner on the same charges. We hold, on the

authority of Burks v. United States, 437 U.S. 1 (1978), that

the double jeopardy clause did bar retrial.

Dirk Webster appeals from a judgment entered

November 1, 1983! in the Northern District of Indiana,

Allen Sharp, Chvef District Judge, denying his petition fora

writ of habeas corpus pursuant to 28 U.S.C. §2254 (1982).

Appellant was convicted on two counts of first degree

murder in the Superior Court of Lake County, Indiana, and

was sentenced to two consecutive 45 year terms of

imprisonment. The Supreme Court of Indiana reversed

and ordered a retrial, one justice dissenting with respect to

ordering a new trial. Webster. State, 274 Ind. 668, 673, 413

N.E.2d 898, 902 (1980) (Webster J). Appellant again was

convicted and again was sentenced to two consecutive 45

year terms of imprisonment. The Supreme Court of

Indiana, one justice dissenting, affirmed appellant’s second

conviction. —— Ind. —__, 442 N.E.2d 1034 (1982) (Webster

/1). He currently is serving his sentence.

Appellant argues that, since the Supreme Court of

Indiana reversed his first conviction on the ground of the

insufficiency of the evidence, under the United States

Supreme Court’s holding in Burks, supra, the double

' We do not view lightly the elapse of eighteen months between the date

of entry of judgment in the district court (November !, 1983) and the

date the appeal was argued in our Court (April 23, 1985). The delay in

large measure was caused by repeated extensions granted to appellant

of the time within which to file his brief, during the period he was acting

prose. Wedo note one redeeming aspect of the delay i zetting the case to

us for decision: once counsel appointed by our Court, Jerold S. Solovy,

Esq. and J. Kevin McAll, Esq.. appeared to represent appellant on

appeal, he had the benefit of professional services of the highest order in

the preparation of his briefs and the argument of his appeal.

A-3

jeopardy clause of the Fifth Amendment barred retrial and

the conviction resulting from the retrial was a nullity. The

district court held that appellant’s first conviction was

reversed because of trial error, rather than insufficient

evidence, and that Burks did not bar retrial.

For the reasons stated below, we reverse the judgment of

the district court and remand the case to that court with

instructions to issue the writ of habeas corpus.

We summarize those facts and Indiana state court

proceedings believed necessary to an understanding of the

legal issues raised on appeal.

(A) First Trial

Betty DeBowles and Robin Thomas were last seen alive

on December 16, 1977. Betty’s body was found two days

later, slumped in the front seat of Robin’s car which was

parked in a secluded area. Betty had been shot once in the

head. Two additional spent bullets were recovered from the

car. Robin’s body was not discovered until April 9, 1978

when a passer-by saw his body lying in a drainage ditch.

Although the body had lacerations on the chest and throat,

it was later determined that Robin died from drowning or

exposure. A .32 caliber revolver was feund near Robin’s

body. A short time after the discovery of Robin’s body, the

police arrested appellant Dirk Webster, Garland Hicks,

Aurelius James Allen and O.D. Webster, the latter being

appellant’s father. The four men were indicted for the two

murders.

Pursuant to a written plea agreement, Allen agreed to

testify against Hicks and to plead guilty to two counts of

involuntary manslaughter and one count of robbery. He

was sentenced to three concurrent six-year terms of

imprisonment. A-second robbery count was dismissed.

Allen testified that he was told by the judge at his plea

hearing that he also was expected to testify against

appellant and O.D. Webster, to which he agreed.

A-4

Appellant’s first trial commenced before a jury on March

26, 1979 in the Superior Court of Lake County, Indiana. On

the first day of trial, the state called Betty’s mother. She

testified regarding the last time she saw her daughter alive

and identified a photograph of her daughter. The

photograph was admitted in evidence. The state’s second

witness was a sergeant in the Gary, Indiana, police

department. He testified as to what hesaw when he arrived

at the scene of the murder on December 18, 1977. He

authenticated a,photograph of Betty’s body as it was found

by the police. This photograph also was admitted in

evidence, as were other photographs of the body and the

surroundings. The sergeant testified that he found two

spent bullets in the car, in addition to the bullet that

remained in Betty’s body, but that no gun was found.

The state next called the Chief Investigator of the Lake

County coroner’s office. He authenticated a photograph of

Robin’s body as it was found on April 9, 1978. He testified

about the condition of Robin’s body, stating that, although

it was partially decomposed, lacerations on the chest and

neck were discernible.

Also on the first day of trial, the state produced the

passer-by who discovered Robin’s body and the .32 caliber

revolver which was found nearby. Another Gary police

officer testified that the revolver had two spent and four

live rounds in the cylinder. The revolver was admitted in

evidence. Robin’s father testified regarding his

identification of his son’s body and as to specific items of

jewelry that were missing when the body was found.

The state then called to the stand Aurelius James Allen,

one of the appellant’s co-defendants who had pleaded guilty

to lesser offenses. Allen answered the questions put to him

by the prosecutor regarding his name and address; the fact

of his incarceration; his indictment for the murders of

Betty and Robin; his guilty plea; and his agreement to

testify against appellant, Hicks and O.D. Webster in return

A-5

for arelatively light sentence. The prosecutor showed Allen

a handwritten unsigned letter which Allen identified as

one he received while in prison the previous summer. The

letter, which later was admitted in evidence, stated:

“Hey Rap,

I read of your unfortunate situation so I had to write

an [sic] see if you’re still cool. We both know what

happended to pee-wee so don’t let these honkies makea

snitch out of you. Vette’s life was spared because we

was coo! but harpo felt different. Also let me remind

you of this, The pigs figure you & Vette were up on this

from jump so if you decide to flip the weight can be

shifted once again. If you try an[sic]jam us, you'll only

jam yourself or ‘Vette’ an[sic] that’s your main concern

isn’t it?” (emphasis in original)

The prosecutor asked Allen if he could identify the

handwriting on the letter or the envelope. Allen said he

could not. The prosecutor questioned Allen regarding prior

statements in which Allen identified the handwriting as

that of Dirk Webster. Allen responded that he did not recall

making the statements.

The prosecutor then questioned Allen regarding his

relationships with appellant, Robin and Yvette Thomas.

The latter was known as “Vette”, and was Robin’s sister-in-

law. Allen testified that he knew both appellant and Robin,

but answered “I don’t know” or “I don’t remember” to every

other question. He testified that he did not recall ever

having given any other answers to the same questions at an

earlier time.

Allen was shown a copy of his plea agreement and was

asked if he recognized it. He said he did. He was asked if he

recalled testifying against Garland Hicks. He said “Yes”.

He was asked if he recalled being told by the judge at his

plea hearing that he also was expected to testify against the

two Websters as part of the plea bargain. He said that he

did not remember.

A-6

At that point, the jury was excused. A conference

between the court and counsel was held in chambers, on the

record. Appellant’s counsel objected that the witness was

being intimidated by an implied threat to revoke his plea

agreement, that he faced a potential contempt charge, and

that he should be afforded counsel. The court decided that it

would instruct Allen that, if he continued to refuse to

testify, his plea agreement would be breached and he would

be required to stand trial for the two murders. Also during

the chambers conference the court indicated to the

prosecutor that, as long as Allen said he did not remember,

as opposed to refusing to testify, the prosecutor would be

permitted to use Allen’s prior statements for impeachment

purposes.’

The jury returned to the courtroom. The state continued

its examination of Allen. The witness was asked a long

series of questions regarding his prior statements

implicating appellant in the two murders. To each

question, Allen answered “I don’t remember”. The

questioning occasionally took the form of a direct question,

but mostly it consisted of the prosecutor’s reading questions

and answers from Allen’s prior testimony and then asking

the witness if he recalled having been asked that question

and having given that answer.

After a short time, appellant’s counsel requested the

court to instruct the jury to the effect that prior inconsistent

statements could be used for impeachment purposes only,

but not as substantive evidence. The court declined to give

the instruction, stating that it was “premature at this

point.”

The questioning continued in the manner described for

some period of time, with Allen continuing to state that he

did not recalled having been asked the questions and

having giving the answers read to him. The questions read

* The importance of this statement and its timing will be referred to

infra at page 15.

A-7

by the prosecutor and the answers previously given by the

witness described for the jury in great detail the events that

took place on the night of the murders. After the prosecutor

read from the witness’s testimony at his plea hearing, the

prosecutor indicated that it was late in the day and stated “I

hate to start this other impeachment.” The court then

adjourned.

On the second day of the trial, the county coroner testified

regarding his autopsy findings with respect to the body of

Robin. They related exclusively to the condition of the body.

On cross-examination, the coroner testified that he could

not state definitely the cause of death, but that, in his

opinion, death was caused by either drowning or exposure.

The Chief Investigator for the Lake County Prosecutor's

Office was called to testify regarding a fruitless search for

weapons in the vicinity where Betty’s body had been found.

The state presented a booking card which contained the

signature of appellant. It was admitted in evidence after

being authenticated by an officer at the Lake County jail.

The prosecutor called a handwriting expert employed by

the Indiana State Police. He testified that he had compared

Dirk Webster’s signature on the booking card with the

handwriting on the letter received by Allen while in prison.

At that point in the trial the letter had not been admitted in

evidence. He stated that, while the two samples displayed

“limited similarities”, he could not draw a definite

conclusion because the sample on the booking card was too

limited. He also testified that he found no “unlikes”. A

stipulation later was read to the jury stating that appellant

had refused to give a handwriting exemplar for the

purpose of comparing it with the handwriting on the letter.

A pathologist testified that Betty died from a gunshot

wound to the head with lacerations of the brain. A ballistics

expert testified that the two spent .32 caliber bullets found

near Betty’s body were not fired from the same gun that

had caused the would to her head and that neither of the two

A-8

spent bullets was fired from the gun found near Robin’s

body. Another expert testified that the bullet recovered

from Betty’s body was too mutilated to be identified as to

source.

Allen was recalled to the stand. Outside of the presence of

the jury, he testified that he had conferred with counsel and

that he understood the possible consequences of his refusal

to testify. The jury returned to the courtroom. The

questioning resumed along the same lines as the day before.

Again, Allen repeatedly testified that he could not recall

having been asked the earlier questions or having given the

answers read to him. This line of questioning continued for

a considerable time, until the prosecutor had completed

reading all of Allen’s prior testimony. Appellant’s counsel

attempted to cross-examine the witness, but he continued

to respond to every question with “I don’t remember”.

Court was adjourned for the day.

After the jury had been excused, appellant’s counsel

requested that all of Allen’s testimony be stricken from the

record on the ground that the witness’s inability to

remember violated appellant’s Sixth Amendment right to

confront the witnesses against him. A lengthy discussion

ensued. The prosecutor argued that the prior testimony

was permissible both for impeachment purposes and as

substantive evidence. The court deferred ruling on the

matter, but stated that it was inclined to exclude the

evidence because appellant had been denied a meaningful

cross-examination.

The third day of trial began with Allen again on the

witness stand. His testimony followed the pattern of the

previous two days. Appeilant’s counsel made a further,

fruitless attempt to cross-examine the witness. The jury

was excused for a lunch recess. The court heard more

argument on the admissibility of Allen’s previous

testimony. The court again deferred ruling on the matter,

again stating, however, that it was inclined to exclude the

evidence.

A-9

After the lunch recess, the letter received by Allen while

in prison was received in evidence over the objection of

appellant. Robin’s mother was recalled. She testified that

her daughter-in-law, Yvette, was acquainted with Allen.

At the conclusion of her testimony, a bench conference was

held. The prosecutor stated to the court “This is the

deciding time.” The court, however, continued to defer

ruling. Instead, the court permitted the state to put on more

of what the court termed “impeachment material”. The

prosecutor then read to the jury from the aythenticated

transcripts of Allen’s testimony at his plea hearing, O.D.

Webster’s bail hearing and Garland Hicks trial.

After reading substantial portions of the earlier

testimony to the jury, the prosecution rested. Immediately

thereafter, without putting on any evidence, the defense

rested. The jury was excused. Appellant’s counsel moved

for a directed verdict on the ground of the insufficiency of

the evidence. The prosecutor summarized the evidence

against appellant as follows: that the killings were

homicides, that Allen was a participant, that appellant was

Allen’s friend and that the !etter to Allen in prison could

imply that appellant was a participant. The prosecutor did

not mention Allen’s previous testimony. The court denied

the motion for a directed verdict. The court asked counsel

for appellant and the prosecutor if they had received the

proposed jury instructions and whether they had any

objections. No objections were made.

The jury was instructed, with no objection being

interposed by either side, as follows, inter alia:

“(T]he prosecutors were permitted to read into

evidence statements that were agreed by the parties to

have been made by the witness, AureliusJames Allen,

prior to this trial. The statements were admitted by

the Court for the limited purpose of attempting to

impeach or impugn the veracity or truthfulness of that

witness and for no other purpose. They may not be

considered by you as evidence against the defendant,

A-10

Dirk Webster, who was not present when the

statements were made, and was denied meaningful

cross examination of the witness during the course of

this trial.”

Appellant subsequently was convicted by the jury on two

counts of first degree murder and was sentenced to two

consecutive 45 year terms of imprisonment.

(B) First Appeal (Webster I)

On direct appeal to the Supreme Court of Indiana,

appellant raised nine issues for review. In its opinion,

however, the court addressed only “one claim — that the

evidence presented by the State was insufficient to support

a finding of guilt beyond a reasonable doubt.” Webster J,

supra, 274 Ind. at 669, 413 N.E.2d at 899. After reviewing

the evidence adduced at trial, the court set forth the

standard of review applicable on appeal as follows:

“We have said many times in reviewing sufficiency

claims that we will not usurp the jury’s function of

weighing the evidence and judging the credibility of

witnesses. We will only examine the evidence and

reasonable inferences to be made therefrom that

support the verdict. If there is evidence of probative

value from which the jury could conclude that the

defendant was guilty beyond a reasonable doubt, we

will not disturb the verdict; conversely, if there is no

such evidence of probative value in the record we have

not only the power and authority, but the solemn duty

to set aside the verdict.” 274 Ind. at 671, 413 N.E.2d at

900.

The court examined the sufficiency claim under this

standard and reversed the conviction, concluding that “the

substantive evidence which the jury could consider does not

support a conciusion of guilt.” /d.

In reaching this conclusion, the court held that, even if

the jury found that appellant wrote the threatening letter

to Allen, the letter “could do no more than raise a remote

A-11

suspicion that Webster was involved” and fell “far short of

satisfying the State’s burden or proving guilt beyond a

reasonable doubt.” 274 Ind. at 672, 413 N.E.2d at 900.

The court discussed Allen’s prior testimony, describing it

as having been used to impeach the witness. /d. The court

quoted from the trial court’s instruction to the jury on the

subject of Allen’s testimony and stated “in reviewing

sufficiency claims, we must exclude from our consideration

any evidence that was introduced to impeach the

credibility of a witness. Such evidence is not a part of the

substantive case.... Consequently, Allen's prior testimony

is not, as contended by the State, additional evidence which

may be considered by this Court as supporting the verdict of

guilty.” 274 Ind. at 6738, 413 N.E.2d at 901 (emphasis

added).*

The court, with one justice dissenting,* held that

appellant could be retried without violating the double

jeopardy clause. The court distinguished Burks v. United

States, 487 U.S. 1 (1978), holding that

“It was the trial judge’s decision to give the restrictive

final instruction which in fact and in point of time

rendered the prosecution’s case insufficient to convict.

If that ruling had been made earlier the prosecution

would have had the opportunity at the trial to offer

other available proof to bolster its case.” 274 Ind. at

674, 413 N.E.2d at 902.

' The State again attempted, in its oral argument before us, to rely on

the impeachment material as substantive evidence. As indicated :i/ru,

p. 13, we agree with the Supreme Court of Indiana on this point.

' In the view of the dissenting justice,

“the rationale behind the double jeopardy proscription is simply

that, considering the resources available to the State and the grave

injustice done one who is erroneously brought to trial, it behooves

the State to prosecute only upon firm evidence and then to bring

forth its best case or suffer the consequences.” Webster J, supra,

274 Ind. at 675, 413 N.E.2d at 902(Prentice,.J., dissenting in part).

A-12

The court did not specify what “other available proof” the

prosecution could have offered had the ruling been made

earlier, nor did the court indicate that the trial court’s

instruction was erroneous. It stated only that the

prosecution was warranted in believing that, ultimately,

the prior testimony would be admitted as substantive

evidence. Jd.

At appellant’s second trial, more than a year after the

first, Allen was able to recall the events leading up to and

including the murders of Betty and Robin. Appellant was

convicted again on both counts and again was sentenced to

two consecutive 45 year terms of imprisonment.

Appellant appealed again to the Supreme Court of

Indiana. He raised again the double jeopardy claim and

argued that the evidence still was insufficient to sustain the

conviction despite Allen’s testimony. The court affirmed

the conviction, again with one justice dissenting. Webster

I], supra. In rejecting appellant’s double jeopardy claim,

the court held that it had already been decided in Webster /,

supra, that Burks was distinguishable because the state did

not have “‘one fair opportunity to offer whatever proof it

could assemble’”. —_. Ind. at —___, 442 N. F.2d at 1084-35,

quoting Burks, supra, 437 U.S. at 16. The court also rejected

appellant’s claim that the testimony of Allen as an

accomplice was not credible and that the second conviction

should be reversed for insufficient evidence. _ Ind. at

—___., 442 N.E.2d at 1035.

This completes our summary of proceedings in the

Indiana state courts. We turn now to proceedings in the

federal courts.

I].

Appellant, acting pro se with the aid of a fellow prisoner,

filed the instant petition for a writ of habeas corpus in the

A-13

Northern District of Indiana on July 11, 1988. On

November 1, the district court, after reviewing the

complete state court record and finding that state remedies

had been exhausted, denied the writ. The court held that

the second trial and conviction were not barred by the

double jeopardy clause because appellant's first conviction

was reversed by the Supreme Court of Indiana for trial

error, rather than for insufficient evidence, and the trial

court had denied the prosecution “one fair opportunity to

present its evidence.” Webster e. Duckworth, S. 88-3806, slip

op. at 3. (N.D. Ind. 1983). The court went on to state that

“This court would be less than candid if it were to say thal

this is not a close call.”

Our decision on this appeal turns on the answers to two

questions: (A) whether the Supreme Court of Indiana

reversed appellant's first conviction on the ground of the

insufficiency of the evidence or for trial error; and (B)

whether, under recent United States Supreme Court

interpretations of the double jeopardy clause, an accused

may be retried after it has been held that the substantive

evidence adduced at his first trial was insufficient to

sustain a verdict of guilty beyond a reasonable doubt when

the trial court erroneously excluded prosecution evidence.

We shall discuss these questions seriatim.

(A) Insufficiency Of The Evidence vs. Trial Error

It is clear that the Supreme Court of Indiana reversed

appellant’s conviction because the evidence was

insufficient to sustain the verdict. The court in Webster /

repeatedly and expressly stated just that. Indeed it limited

its analysis to “one claim—that the evidence presented by

the State was insufficient to support a finding of guilt

beyond a reasonable doubt.” Webster 4, supra, 274 Ind. at

669, 413 N.E.2d at 899. The state argues that the evidence

was insufficient because the trial court erroneously

excluded prosecution evidence. The state therefore

contends that appellant's conviction was reversed for trial

A-14

error rather than for insufficient evidence. We believe that

to state this proposition is to reject it. Clearly, appellant did

not seek, nor could he have obtained, reversal of his

conviction on the ground that the court excluded

prosecution evidence. There can be no doubt that

appellant’s conviction was reversed for insufficient

evidence and for no other reason. We turn next to the

question of whether the Supreme Court of Indiana held

that the insufficiency of the evidence was caused by trial

court error, either in excluding prosecution evidence or in

delaying in ruling on the matter, and, if so, whether it is

constitutionally permissible for a reviewing court to

examine the reason for the insufficiency in ordering a

retrial.

First, the Supreme Court of Indiana did not hold

expressly in either Webster 1 or Webster I] that the trial

court erroneously excluded Allen’s prior testimony.

Moreover, if the court nad believed that the instruction

regarding Allen’s testimony was erroneous, it is only

reasonable to assume that it would have said so.

Second, the state failed to object to the instruction

regarding Allen’s testimony either when it was first

proposed or when it was given to the jury. Under Indiana

law, this constituted a waiver of any objection to the

instruction. Ind. R. Cr. P. 8(b).

Third, the Supreme Court of indiana subsequently held

that, when a witness denies having made a prior statement

or cannot remember having made it, the statement is

inadmissible as substantive evidence. Watkins v. State,

Ind. , 446 N.E.2d 949, 960 (1983); see also

Carter v. State, Ind. App. _.., , 412 N.E.2d 825,

$28-31(1980).° In holding as it did in Watkins, the court did

5 In Nelson v. C’Neil, 402 U.S. 622 (1971), O’Neil had been convicted

after a prior inculpatory statement was admitied against his

codefendant, despite the codeisndant’s denial of having made the

A-15

not find it necessary even to mention its holding in Webster

/. The earlier Indiana cases relied on by the state in its

argument in the trial court in support of the admissibility

of Allen’s prior testimony clearly are distinguishable. In

both Patterson v. State, 263 Ind. 55, 324 N.E.2d 482 (1975),

and Stone v. State, 268 Ind. 672,377 N.E.2d 1372 (1978), the

witnesses neither denied making the statements nor failed

to remember making them.

We conclude that the Supreme Court of Indiana did not

hold that the trial court erred in excluding Allen’s prior

statements as substantive evidence.

The state also argues that the Supreme Court of Indiana,

in ordering a retrial in Webster J, held that the trial court

erred in deferring a ruling on the admissibility of the Allen

testimony until the close of the tria#t. Webster I, supra, 274

Ind. at 674, 413 N.E.2d at 902. According to the State’s

interpretation of that decision, the court held that the

failure on the part of the trial court to rule earlier on that

matter caused the state justifiably to believe thav the

evidence would be admitted. Under this interpretation of

Webster I, this belief on the part of the state caused it to

withhold additional evidence in its possession, thereby

depriving it of a “fair” opportunity to present its best case.

According to the state, this constituted “trial error”. We are

not persuaded by the state’s reasoning.

statement. The Supreme Court held that O'Neil’s Sixth Amendment

right to confront the witness against him was not violated, since the

codefendant “testified at length, and favorably to the defendant,

concerning the underlying acts.” /d. at 628; see also United States v.

Baker, 722 F.2d 348, 348 (7th Cir. 1983), cert. denied, — U.S. ,104

S.Ct. 1312 (1984). In the instant case, Allen could not recall making the

earlier statements nor could he recall the underlying facts. We need not

decide, because it is not presented here, whether appellant’s right to

confrontation would have been violated if the prior testimony had been

admitted. For purposes of this appeal, the only question is whether the

Supreme Court of Indiana held that e.rc/usion of the evidence by the trial

court was error. It did not so hold.

A-16 :

First, the state was on notice from the first day of the trial

that there was a possibility that Allen’s prior testimony

would not be admitted as substantive evidence. The point

repeatedly was argued by counsel for both sides. Each

time, the trial court indicated, without ruling, that it was

included to exclude the evidence. At no time did the

prosecution object on the ground that failure to rule on the

matter immediately would be prejudicial to the state.

Second, it is difficult to understand why the state,

especially under these circumstances, would withhold any

additional evidence it might nave in reliance on the mere

possibility that Allen’s prior testimony would be admitted.

Third, at appellant’s second trial no substantial additional

evidence beyond Allen’s direct testimony® was introduced,

despite the reasonable assumption that Allen’s credibility

* Allen’s testimony at the second trial tended to prove the following:

appellant, Allen and Hicks were employed as “runners” by O.D.

Webster. Allen on several occasions delivered drugs to Robin Thomas

and collected money from him after the sales were made. Robin kept a

“commission” out of the proceeds, and Allen delivered the balance to

O.D. Webster.

On the nightof the murders, appellant, Allen and Hicks were dispatched

by O.D. Webster to go to Robin's house and to bring him to the elder

Webster for the purpose of settling a debt of seven or eight hundred

dollars that Robin owed his supplier. When they arrived at the house,

they were admitted by Vette, Robin's sister-in-law with whom Allen had

a relationship. The three men seized Robin and Betty, who were in

Robin's bedroom. After some discussion, Allen persuaded the others to

allow Yvette to remain behind. All three men were armed.

Robin and Betty were delivered to O.D. Webster and an argument

between Robin and O.D. ensued. After a while, Robin and Betty were put

back in the car and driven to a secluded area. As Robin was taken from

the car. he struggled with appellant. Hicks intervened, and Robin was

restrained, Appellant then fired three shots at Betty. Robin struggled

free and fled toward a nearby drainage ditch. He was caught by

appellant and Hicks. Hick. who had lost his revoiver, cut Robin with a

broken bottle. and appellant held his head under the water until he was

dead. The three men fled on foot and were picked up by O.D. Webster

who had parked nearby.

A-17

would be sharply impeached. We fail to see how this so-

called “trial error” could have prejudiced the state.

Nevertheless, because the Supreme Court of Indiana’s

opinion is ambiguous, we accept the state’s interpretation

of Webster 1 and assume that the Supreme Court of Indiana

heid that the delay in ruling on the evidentiary question

was error prejudicial to the state. In such a situation we

hold that, regardless of whether atrial court commits error

that results in prejudice only to the prosecution, if the

conviction is reversed for insufficient evidence the

reviewing court is barred by the double jeopardy clause

from ordering a retrial.

(B) Recent Supreme Court Decisions On Double

Jeopardy

In Burks the Supreme Court held that the double

jeopardy clause prohibits retrial when a conviction is

reversed for insufficient evidence as opposed to “trial

error”. 437 U.S. at 16. “Trial error” was defined as “a

determination that a defendant has been convicted through

a judicial process which is defective in some fundamental

respect, ¢.y., incorrect receipt or rejection of evidence,

incorrect instructions, or prosecutorial misconduct.” /d. at

15 (emphasis added). “Trial error”, in the double jeopardy

analysis, clearly means error that prejudices the

defendant, not the s ste. /d.; see also Sumpter v. DeGroote.

552 F.2d 1205, 1211-12 (7th Cir. 1977).

The state attempts to distinguish Burks by arguing that

the insufficiency of the evidence in that case was not caused

by trial error. The Court stated in a footnote in Burks that

“There is no claim in this case that the trial court

committed error by excluding prosecution evidence which,

if received, would have rebutted any claim of evidentiary

insufficiency.” 437 U.S. at 5 n.4. The Court did not explain

in Burks what difference this might have made in the

result. In Sanabria v. United States, 437 U.S. 54 (1978),

however, decided the same day as Burks, the Court held

that an erroneous evidentiary ruling that led to an acquittal

for insufficient evidence barred on double jeopardy

A-18

grounds a subsequent prosecution on the same charge. /d.

at 68-69. The footnote in Burks quite plainly was intended

only to distinguish the factual settings of the two cases.

The state attempts to distinguish Sanabria by arguing

that the instant case involves a conviction and subsequent

reversal, rather than an acquittal. A reversal based on the

insufficiency of the evidence, however, is the constitutional

equivalent of an acquittal “because it means that no

rational factfinder could have voted to convict the

defendant.” Tibbs v. Florida, 457 U.S. 31, 41 (1982); see

Sumpter, supra, 552 F.2d at 1211-12. Sanabria precludes

carving an exception out of the Burks ruleon the basis of an

alieged “trial error” that results in insufficient prosecution

evidence.

Our decision today is nothing more than a reaffirmation

of what has been the law at least since Burks. The state’s

reliance on cases that predate Burks is foreclosed by the

Supreme Court’s statement in that case that “A close

reexamination of those precedents...persuades us that

they have not properly construed the Clause, and

accordingly should no longer be followed.” Burks, supra,

437 U.S. at 12. Burks, as clarified by Sanabria, is now the

law. We of course are duty-bound to follow it.

We note that there is an apparent, though not real,

anomaly in the law in the following respect: if a trial court

erroneously admits prosecution evidence, retrial is

permitted because a reversal would be based on “trial

error’; but where a trial court erroneously excludes

prosecution evidence, and the conviction is reversed for

insufficient evidence, retrial is barred. What appears at

first biush to be an anomaly disappears upon closer

examination. The rule that the state is afforded but one

opportunity to convict, “lving at the core of the Clause’s

protections, prevents the State from honing its trial

stategies and pefecting its evidence through successive

attempts at conviction.” Tibbs, supra, 457 U.S. at 41. The

absence of competent substantive evidence to support a

verdict of guilty beyond a reasonable doubt, whether the

result of prosecutorial inability, judicial error or a

A-19

recalcitrant witness, requires an acquittal either at trial or

on appeal. The Constitution prohibits giving the state a

“second bite at the apple.” Burks, supra, 4837 U.S. at 17.

To summarize: We hold that appellant's first conviction

was reversed by the Supreme Court of Indiana because the

state failed to produce evidence sufficient to sustain a

verdict of guilty beyond a reasonable doubt and that the

insufficiency of the evidence, whether or not caused by an

erroneous trial court ruling, was the constitutional

equivalent of an acquittal. Appellant’s retrial and

subsequent conviction, therefore, violated the double

jeopardy clause of the Fifth Amendment.

We reverse the judgment of the district court and

remand the case to that court with instructions to issue a

writ of habeas corpus ordering Webster’s immediate and

unconditional release from custody.

Let the Great Writ issue.

REVERSED AND REMANDED.

A true Copy:

Teste:

Clerk of the United States Court of

Appeals for the Seventh Crrenit

We are confident that this rule will not sanction the admission of

prosecution evidence, where that decision might otherwise be a close

one, for the purpose of permitting retrial in the event of reversal. The due

process clause “sets a lower limit on an appellate court's definition of

evidentiary sufficiency” and thereby restrains “the power of appellate

courts to mask reversals based on legally insufficient evidence as

reversals grounded on the weight of the evidence”. Tihhs, supra, 457 U.S

at 45: see Jackson ve. Virginia, 443 US. 307, 316 (1979). Similarly. due

process would prohibit retrial where it becomes clear to a reviewing

court. Whether federal or state. on the basis of statements made by the

trial court. arguments presented by the prosecution, the objective clarity

of the law on the issue or otherwise, that inadmissible evidence has been

admitted for the sole purpose of allowing the state to garner additional!

competent evidence for a retrial

bre

A-20

JUDGMENT — ORAL ARGUMENT

United States Court of Appeals

For the Seventh Circuit

Chicago, Illinois 60604

July 11, 1985.

Before

Hon. WALTER J. CUMMINGS, Chief Judge

Hon. RICHARD D. CUDAHY, Circuit Judge

Hon. WILLIAM H. TIMBERS, Senior Circuit Judge*

DIRK WEBSTER,

Petitioner-A ppellant,

No. 83-3096 VS.

) Appeal from the

) United States

) District Court for

the Northern

JACK R. DucKWorTH, Warden, and ) )Djstrict of Indiana.

the INDIANA ATTORNEY GENERAL, ) Soyth Bend

Respondents-A ppellees. ) Division.

) No. 83-C-306

) AllenSharp, Judge.

This cause was heard on the record from the United

States District Court for the Northern District of Indiana,

South Bend Division, and was argued by counsel.

On consideration whereof, IT IS ORDERED AND

ADJUDGED by this Court that the judgment of the said

District Court in this cause appealed from be, and the same

is hereby, REVERSED AND REMANDED, in

accordance with the opinion of this Court filed this date.

* The Honorable Wilham H. Timbers. Semer Cireuit Judge of the

United States Court of Appeals for the Second Circuit. is sitting by

designation

A-21

United States Court of Appeals

For the Seventh Circuit

Chicago, Illinois 60604

September 11, 1985.

Before

HON. WALTER J. CUMMINGS, Chief Judge

HON. RICHARD D. CUDAHY, Circuit Judge

Hon. WILLIAM H. TIMBERS, Senior Circuit Judge*

DIRK WEBSTER, ) Appeal from the

Petitioner-A ppellant, ) United States

No. 83-3096 V. ) District ( ourt for

the Northern

JACK R. DUCKWORTH, Warden, and ) District of Indiana.

)

the INDIANA ATTORNEY GENERAL, ) South Bend

Respondents-A ppellees, ) Division.

) No. 83-C-306

) Allen Sharp, Judge.

ORDER

On consideration of the petition for rehearing and

suggestion for rehearing en banc filed in the above-entitled

cause by respondent-appellee Jack R. Duckworth, a vote of

the active members of the Court was requested, and all of

the active members of the Court have voted to deny a

rehearing en bane.** Accordingly,

IT IS ORDERED that the aforesaid petition for

rehearing be, and the same is hereby. DENIED.

* The Honorable William H. Timbers. Senior Circuit Judge of the

United States Court of Appeals for the Second Circuit. is sitting by

designation.

* Cureuit Judge Flaum disqualified himself from consideration of the

petition

United States Court of Appeals

For the Seventh Circuit

Chicago, Illinois 60604

September 12, 1985.

Before

Hon. WALTER J. CUMMINGS, Chief Judge

Hon. RICHARD D. CuDAHY, Circuit Judge

HON. WILLIAM H. TIMBERS, Senior Circuit Judge*

Appeal from the

Petitioner-A ppellant, United States

No. 83-3096 | District Court for

the Northern

DikK WEBSTER, )

)

JACK R. DUCKWoRTH, Warden, and ) District of Indiana.

the INDIANA ATTORNEY GENERAL, ) South Bend

Respondents-A ppellees, ) Division.

) No. 83-C-306

) Allen Sharp, Judge,

ORDER

The Court, sua sponte, hereby amends its opinion filed

July 11, 1985, and reported in 767 F.2d 1206, by ordering:

(1) That the following portion of the opinion is

deleted (referring to pages of the slip opinion dated

July 11, 1985):

(a) Beginning at page 18, line 17, through page

19, line 9.

(b) Footnote 7 on pages 18 and 19.

(2) That, in lieu of the portion of the opinion deleted

as set forth in paragraph (a) above, the following new

paragraphs are added:

* The Honorable William H. Timbers, Senior Circuit Judge of the

United States Court of Appeals for the Second Circuit, is sitting by

designation,

A-23

“The fact that Burks rests on two lines of

reasoning may present difficulties in cases other

than the one before us. As the Court emphasized

in Tibbs, the decision in Burks depended not only

on the fact that a properly instructed jury should

have voted to acquit but also on the fact that the

constitutional provision ‘forbids a second trial for

the purpose of affording the prosecution another

opportunity to supply evidence which it fails to

muster in the first proceeding.’ Burks, supra, 437

U.S. at 11, quoted in Tibbs, supra, 457 U.S. at 41.

If the prosecution actually presents enough

evidence to support a conviction and the jury

convicts, but for some reason the evidence

properly admitted is insufficient, we would have

a different case.

“For example, one court of appeals has

suggested that if the evidence actually admitted

is sufficient, but some of the evidence should have

been excluded (perhaps on hearsay or

exclusionary rule grounds) and what remains is

insufficient, there may be a new trial so that the

prosecution may replace the inadmissible

evidence with admissible evidence. United States

v. Bibbero, 749 F.2d 581, 586 & N.3 (9th Cir. 1984);

United States v. Harmon, 632 F.2d 812 (9th Cir.

1980). The law need not encourage the

prosecution to engage in overkill in the first trial

to protect the judgment from later decisions that

some evidence should have been excluded. As

another example, a distinctly harder one, the

government may offer sufficient evidence only to

have the court erroneously exclude an essential

portion. In such a case a retrial wouid not offend

the second rationale of Burks, the one based on the

prohibition against supplying evidence the

prosecution ‘failed to muster’ in the first trial.

Although it might accurately be portrayed as a

case in which the first jury ought to have

acquitted on the evidence it heard, unlike Burks it

(3)

A-24

cannot be portrayed as a case in which the jury

ought to have acquitted on all the evidence the

prosecution mustered. Sanabria is not

necessarily a complete rejection of a second trial

in this limited circumstance, for as the Court

reiterated in Tibbs, supra, 457 U.S. at 39-42,

Burks is but a narrow exception to the rule that a

reversal on appeal after a conviction may be

followed by a new trial.

“We need not resolve these difficult cases here.

The prosecution did not muster sufficient

evidence only to learn belatedly that some

evidence would be deemed inadmissible. No

evidence was offered and excluded. The most the

state can say is that the prosecutor thought,

wrongly as things turned out, that he had offered

sufficient evidence. The prosecutor did his best to

wring substantive evidence from Allen and

Allen’s prior statement, but he failed. He knew

throughout the trial that reliance on the prior

statement for this purpose was chancy. Nothing

the trial court said or did kept out any admissible

evidence or lulled the prosecutor into a false sense

of security.

“The prosecutor’s erroneous prediction of the

sufficiency of the evidence cannot distinguish this

case from Burks. Doubtless the prosecutor in

Burks thought he had offered enough, and surely

he thought he could offer more if given another

chance. Few prosecutors knowingly stop short of

introducing evidence sufficient to convict. If a

prosecutor’s miscalculation of how much

evidence is enough would permit a second trial,

Burks would be drained of substance. We

therefore conclude that the double jeopardy

clause barred a second trial in this case.”

That in all other respects the opinion filed July 11,

1985, is reconfirmed.

A-25

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF INDIANA

SOUTH BEND DIVISION

DIRK WEBSTER

Petitioner

Vv No. S 83-306

JACK R. DUCKWORTH, Warden )

and INDIANA ATTORNEY GENERAL )

)

Respondents )

MEMORANDUM AND ORDER

This case is presently before the court on a petition for

writ of habeas corpus, filed pursuant to 28 U.S.C. §2254. In

accord with the dictates of Townsend v. Sain, 372 U.S. 293

(1963), the complete state court record has been filed with,

and carefully examined by, this court. As per the

requirements of 28 U.S.C. §2254(b) and Anderson v.

Harless, U.S. ___,, 108 S. Ct. 276 (1982), the petitioner

exhausted his available state court remedies prior to the

filing of this application for federal habeas relief. Both

sides having briefed their respective positions,' this action

is now ripe for ruling.

The petitioner was convicted in a state court jury trial of

two counts of murder, Ind. Code §35-42-1-1, and sentenced

to consecutive terms of forty-five years’ imprisonment on

each count. On direct appeal to the Supreme Court of

Indiana, the convictions were reversed and remanded for a

' Although petitioner is not represented by legal counsel, and has made

no request of this court for appointed counse! under 28 U.S.C. §1915(d), it

should be noted that the petitioner has been assisted since the inception

of this matter by Richard Lee Owen I, an inmate at Indiana State Prison

who has had considerable experience in prosecuting prisoner petitions

in federal court.

A-26

second trial. Webster v. State, _. Ind. ___, 413 N.E.2d

898 (1980) (hereafter, Webster I). Upon retrial, petitioner

was again convicted on both murder counts, receiving an

identical sentence of forty-five years’ imprisonment on

each count. On direct appeal to the Supreme Court of

Indiana, the convictions were affirmed. Webster v. State,

____ Ind. ___., 442 N.E.2d 1034 (1982) (hereafter, Webster

Il).

Petitioner raises but a single issue for review: Whether

he has been placed in jeopardy twice by virtue of his having

been tried two times on the murder charges, thereby

violating his Fifth and Fourteenth Amendment rights.

Simply put, petitioner argues that the Supreme Court of

Indiana reversed his conviction for the reason that the

prosecution at trial had failed to present sufficient evidence

to carry its burden and that retrial is necessarily

precluded.

The Fifth Amendment’s Double Jeopardy guarantee

protects against three things: (1) a second prosecution for

the same offense after having once been acquitted thereon;

(2) a second prosecution for the same offense after a

conviction thereon; and, (3) successive punishments for the

same offense. Wilson v. Meyer, 655 F.2d 118, 120 (7th Cir.

1981), cert. denied, 445 U.S. 993 (1982), citing North

Carolina v. Pearce, 395 U.S. 711, 717 (1969); Washington v.

Duckworth, 567 F. Supp. 5138, 514 (N.D. Ind. 1983). This

above guarantee is applicable against the States via the

Fourteenth Amendment. Benton v. Maryland, 395 U.S. 784

(1969).

A particular nuance of this rule is as follows: where an

underlying conviction has been vacated and reversed for

insufficient evidence, the Double Jeopardy Clause of the

Fifth Amendment bars further prosecution thereon. Burks

v. United States, 487 U.S. 1 (1978); Greene v. Massey, 437

U.S. 19(1978). Where, however, the vacation or reversal of

a conviction was not because of insufficient evidence, but

A-27

rather because of trial court error, double jeopardy does not

apply and cannot, therefore, act as a bar toa retrial on the

same charges. Id.

As this court noted in Washington v. Duckworth, supra,

The Supreme Court’s decisions in such cases as

Sumner v. Mata, 449 U.S. 539, 101 S. Ct. 764, 66 L. Ed.

2d 722 (1982) sic], and Stone v. Powell, 428 U.S. 465, 96

S. Ct. 3037, 49 L. Ed. 2d 1067 (1976), leave little doubt

that a state court’s determinations which are spelled

out by the record are to be accorded great weight by a

federal court sitting in habeas review. Accordingly,

and for an understanding of how the IndianaSupreme

Court determined the question of petitioner’s. . .con-

viction, this court turns now to the decision{s

themselves].

567 F. Sup, at 514-15.

The pertinent part of the Indiana Supreme Court's

decision in Webster I, supra, at 901 and 902, distinguishes

between a reversal based upon insufficiency of the evidence

and reversal based upon trial court errer, thus presenting

the prosecution with one fair opportunity to present its

evidence. Because the Court’s language therein is essential

to a clear understanding of this petition, this court deems it

necessary to quote at length therefrom:

This case is distinguishable from Burks, however. In

that case, the defendant's conviction for robbery

following a trial in which he had raised the defense of

insanity was reversed by the Sixth Circuit Court of

Appeals because the government had not met its

burden of proving sanity beyond a reasonable doubt.

The Court of Appeals remanded the case to the district

court where the defendant was to have “a directed

verdict of acquittal unless the government presents

sufficient evidence to carry its burden on the issue of

defendant’s sanity.” Jd. at 2144. The United States

Supreme Court reversed this aspect of the case,

holding that a second trial is precluded once a

reviewing court has found the evidence legally

A-28

insufficient and that the only remedy available to a

reviewing court is a direction of a judgment of

acquittal. The underlying rationale for this approach

is that the prosecution “has been given one fair

opportunity to offer whatever proof it could assemble.

Moreover, such an appellate reversal means that the

government's case was so lacking that it should not

have been submitted to the jury.” (Original emphasis.)

Id. at 2150, 2151.

In the present case we cannot say that the State’s

case was lacking in this sense. This case, as presented

at trial, would have been sufficient, if believed by the

jury, except for the limitation on the use of Allen’s

prior testimony. That limitation arose when the trial

judge determined that he would give the final

instruction restricting the jury’s use of that testimony.

Up to that point in time the prosecution would have

been warranted to a reasonable degree of legal

certainty in believing that this evidence would come in

as part of the substantive case against appellant

Webster under the ruling in Patterson v. State, (1975)

263 Ind. 55, 324 N.E.2d 482, and Stone v. State, (1978)

Ind., 377 N.E.2d 1372. Cf. Torrence v. State, (1975) 263

Ind. 202, 328 N.E.2d 214. It was the trial judge’s

decision to give the restrictive final instruction which

in fact and in point of time rendered the prosecution’s

case insufficient to convict. (Emphasis added.)

The Indiana Supreme Court above held that the trial

court improperly instructed the jury that evidence

introduced by the prosecution for purposes of

impeachment could not be considered as substantive

evidence in proof of the elements of the crime. (Webster J, R.

Again, at pages 1034 and 1035 of Webster J/, the Indiana

Supreme Court, in affirming the Petitioner’s convictions on

retrial, stated:

The question of whether defendant’s retrial was

prohibited by the double jeopardy clause has already

been considered, discussed and decided adversely to

defendant’s claim in this case on its initial appeal. We

A-29

said there that while in the usual case a reversal for

evidentiary insufficiency precludes a retrial because

of double jeopardy considerations, Burks v. United

States, (1978) 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1,

the Burks rationale does not apply in this case.

Webster, supra, 413 N.E.2d at 902. Athough the State

may not appeal from an acquittal of a defendant by the

trier of fact, no matter how erroneous the foundation

for that acquittal, Fong loo v. United States, (1962)

369 U.S. 141, 82 S.Ct. 671, 7 L.Ed. 629, here, a

judgment of conviction was rendered by the jury in

defendant's first trial. The question of whether the

tate had “one fair opportunity to offer whatever proof

it could assemble”, Burks, supra, 437 U.S. at 16, 98

S.Ct. at 2150, 57 L.Ed.2d at 12, may be considered

when a judgment of conviction has been returned and

defendant appeals, alleging evidentiary insufficiency,

and attempts to avoid retrial.

The Supreme Court of Indiana has premised its opinion

upon the fact that the prosecutor at the first trial, as a result

of trial court error, was not afforded “one fair opportunity

to present is evidence.” Thus, the United States Court of

Appeals for the Seventh Circuit noted recently, “reversal

on the grounds of insufficient evidence is proper only when

the prosecution’s failure to sustain its burden is clear.”

United States v. Jones, 696 F.2d 479, 490 (7th Cir. 1982),

citing Burks, supra, 437 U.S. at 16-17.

This court would be less than candid if it were to say that

this is not a close call. Nevertheless, a careful examination

of the court record and file, as well as the two opinions in

Webster I and II, makes clear that insufficiency of the

evidence was not the reason for reversing and remanding

the original convictions. According, there appearing no

basis for the issuance of the writ, the petition is DENIED,

writ DISMISSED. SO ORDERED.

Enter November 1, 1983.

ALLEN SHARP

CHIEF JUDGE, UNITED

STATES DISTRICT COURT.

A-30

JUDGMENT IN A CIVIL CASE

United States District Court

Northern District

of Indiana South

Bend Division

$83-0306

JACK R. DUCKWORTH and) Allen Sharp, Judge

INDIANA ATTORNEY GENERAL )

)

Jury Verdict. This action came before the Court and a

jury with the judicial officer named above presiding. The

issues have been tried and the jury has rendered its verdict.

DIRK WEBSTER,

Nee Nee Nee ee”

Decision by Court. This action came to trial or hearing

before the Court with the judge named above presiding.

The issues have been tried or heard and a decision has been

rendered.

IT IS ORDERED AND ADJUDGED that petitioner

take nothing, that the petition for writ of habeas corpus is

denied and that the writ is dismissed.

Dirk WEBSTER, Appellant,

STATE of Indiana, Appellee.

No. 1079S286.

Supreme Court of Indiana.

Dec. 30, 1980.

Defendant was convicted in the Lake Superior Court,

Crim. Div. 4, James L. Clement, J., of murder, and '

defendant appealed. The Supreme Court, DeBruler, J.,

held that: (1) evidence elicited from witness could not be

considered in reviewing question whether evidence was

A-31

sufficient to support guilty verdict where statements were

admitted by trial court for limited purpose of attempting to

impeach or impugn veracity of truthfulness of the witness

and for no other purpose, and (2) double jeopardy did not

bar second prosecution, even though Supreme Court

reversed original conviction on basis of insufficiency of

evidence, where case, as presented at trial, would have been

sufficient to support guilty verdict except for limitation on

use of witness’ prior testimony.

Reversed and remanded for retrial.

Prentice, J., concurred in part and dissented in part and

filed opinion.

1. Criminal Law 1144.15

When jury has been instructed to consider evidence on no

other issue except impeachment, Supreme Court will

assume that jury followed the instructions.

2. Criminal Law 1134(2)

Evidence elicited from witness could not be considered in

reviewing question whether evidence was sufficient to

support guilty verdict where statements were admitted by

trial court for limited purpose of attempting to impeach or

inpugn veracity of truthfulness of the witness and for no

other purpose.

3. Criminal Law 192

Double jeopardy did not bar second prosecution, even

though Supreme Court reversed original conviction on

basis of insufficiency of evidence, where case, as presented

at trial, would have been sufficient to support guilty verdict

except for limitation on use of witness’ prior testimony.

U.S.C.A. Const. Amend. 5.

A-82

Terry C. Gray, Gary, for appellant.

Theodore L. Sendak, Atty. Gen., Palmer K. Ward,

Deputy Atty. Gen., Indianapolis, for appellee.

DeBRULER, Justice.

This is a direct appeal by Dirk Webster from his

conviction by a Lake County Superior Court jury on two

counts of murder (Ind. Code. §35-42-1-1[1]). Webster was

sentenced to consecutive forty-five year terms on each

count.

The appellant presents nine issues for review, but

because of our disposition of this case we only discuss one

claim — that the evidence presented by the State was

insufficient to support a finding of guilt beyond a

reasonable doubt.

The uncontroverted evidence against the defendant

which was properly before the jury is set out below.

Betty DeBowles was last seen on December 16, 1977, and

was found dead two days later in a car registered to Robin

Thomas. Twospent bullets were found in the car. DeBowles

died from a bullet wound to the brain. The bullet removed

from DeBowles’ brain during the autopsy was a .32 caliber

bullet. State’s Exhibits 1 through 5 were photographs of

DeBowles’ body, the car in which it was found, and a bullet

hole inside the car; State’s Exhibits 6 and 7 were the bullets

recovered from the car.

Robin Thomas was last seen on December 16, 1977. A

passer-by discovered his body in a drainage ditch and also

found a gun nearby on April 9, 1978.

Photographs of the drainage ditch in which Thomas’

body was found, and a photograph of the body were

introduced into evidence. The gun was also admitted over

objection as State’s Exhibit 10, subject to being connected

to the defendant, Webster, by later evidence.

Thomas died from drowning or exposure. Lacerations on

his body would not have been fatal alone.

A-33

The jury heard the testimony of a firearms expert who

had examined the bullets found in the car in which

DeBowles’ body was found and Exhibit 10, the gun found

near Thomas’ body. He testified that neither bullet was

fired from the gun, and that each bullet came from a

separate gun.

A second firearms expert told the jury that he had

examined the bullet removed from DeBowles’ brain but

that because the bullet was mutilated, he could not

determine whether it came from Exhibit 10.

Aurelius James Allen testified that he had been indicted

for the two murders and that he knew the defendant. He

said that he had entered into a written plea bargain

arrangement under which, in return for his plea of guilty

and his promise to testify against Garland Hicks, who had

also been indicted for the murders, he received two six-year

terms for involuntary manslaughter, and one six-year term

for a robbery, and another robbery charge was dismissed.

He also agreed during direct examination that at his guilty

plea hearing, the judge told him that he was also to testify

against Dirk Webster, and O.D. Webster, the fourth man

indicted for the two murders.

The jury heard Allen testify that he had received a letter,

later admitted over objection as State’s Exhibit 11, while he

was in jail on these charges, and that he had turned this

letter over to the prosecutor. The letter reads:

“Hey, Rap, I read of your unfortunate situation. So, I

have to write and see if you’re still cool. We both know

what happended to Pee Wee. So don’t let those Honkies

make a snitch out of you. Vette’s life was spared,

because we was cool. But Harpo felt different. Also, let

me remind you of this. The Pigs figure you and Vette

were up on this from Jump. So, if you decide to flip, the

weight can be shifted once again. If you try and jam us,

you'll only jam yourself or Vette. And that’s your main

concern; isn’t it.”

A-34

He was asked if he recognized the handwriting on the letter

and he said that he did not recognize it. In response to the

prosecutor’s questions regarding a prior statement in

which he had purportedly identified the handwriting as

that of Dirk Webster, Allen answered that he did not

remember making the earlier statement. The jury also

heard him testify that he did not remember having made

statements about the murders at his guilty plea hearings

and on other occasions before this trial.

The jury heard other evidence in connection with Allen’s

earlier statements, which we will discuss later.

A Lake County policeman testified that he had booked

Webster on December 13, 1979, and a booking card bearing

his signature was admitted into evidence. The jury heard

the testimony of a handwriting expert who was asked to

examine the handwriting on Exhibit 11 to determine if it

was the same as the handwriting in Webster’s booking card

signature, and he testified that he was unable to form a

judgment based on the samples. The trial judge, upon the

stipulation of both parties, informed the jury that he had

ordered the defendant to submit a handwriting exemplar

for the purpose of comparing it with State’s Exhibit 11, and

that Webster had refused to comply with the order.

This was the substantive evidence which the jury could

consider in determining the guilt of Dirk Webster.

We have said many times in reviewing sufficiency claims

that we will not usurp the jury’s function of weighing the

evidence and judging the credibility of witnesses. We will

only examine the evidence and reasonable inferences to be

made therefrom that support the verdict. If there is

evidence of probative value from which the jury could

conclude ‘nat the defendant was guilty beyond a reasonable

doubt, we will not disturb the verdict; conversely, if there is

no such evidence of probative value in the record, we have

not only the power and authority, but thesolernn duty toset

aside the verdict. Osbon v. State, (1938) 213 Ind. 413, 13

A-35

N.E.2d 223; Taylor v. State, (1973) 260 Ind. 64, 291 N.E.2d

890.

Having reviewed the sufficiency claim in this light, we

must conclude that the substantive evidence which the jury

could consider does not support a conclusion of guilt.

The most that the jury could have concluded is that

DeBowles was shot to death and Thomas died of drowning

and exposure; and that witness Allen was involved in the

murders. The gun, Exhibit 10, was not connected to

Webster by any substantive evidence. Even if we could

infer that the jury made the deduction from Webster’s

refusal to furnish the handwriting exemplar that he indeed

wrote the letter to Allen, this conclusion could do no more

than raise a remote suspicion that Webster was involved. A

mere suspicion or possibility of guilt, we have said many

times, falls far short of satisfying the State’s burden of

proving guilt beyond a reasonable doubt. Easton v. State,

(1967) 248 Ind. 338, 228 N.E.2d 6; Floyd v. State, (1980) Ind.

App., 399 N.E.2d 449.

The State contends that there is additional evidence

beyond that recited above, which serves to support the

verdict of guilty. The State points out that the jury also

heard in the course of the direct examination of the witness

Aurelius Allen, earlier testimony which he had given inthe

course of his own guilty plea hearing, the bail hearing of

O.D. Webster, and the trial of Garland Hicks. This

testimony was read to the jury by the prosecution, initially

to refresh Allen’s recollection, and then to impeach him

when he surprised the prosecution by stating that he did

not remember the earlier testimony. It amounted to a

detailed description of the events leading up to the

murders, and the murders themselves, including the

statements that appellant shot DeBowles three times, and

helped Garland Hicks drown Thomas.

If the jurors had been permitted to consider Allen’s prior

testimony as substantive evidence, and if the jurors had

iii iii

A-386

believed it, they could have concluded beyond a reasonable

doubt that Webster had participated in the murders. If the

jurors had been permitted the use of that prior testimony as

substantive evidence, the avenue would be open to this

Court to consider it as evidence supporting the verdict in

resolving the sufficiency issue on appeal. However, the

jurors were expressly precluded from considering that

earlier testimony as substantive evidence by the following

instruction:

“During the course of this trial, certain questions were

propounded to witness, Aurelius James Allen, by the

Prosecutor regarding prior inconsistent statements

allegedly made by him to which he almost always

answered ‘I don’t remember.’ The questions so

propounded were not evidence and are not to be

considered by you as evidence. Subsequent, the

Prosecutors were permitted to read into evidence

statements that were agreed by the parties to have

been made by the witness, AureliusJames Allen, prior

to this trial. The statements were admitted by the

Court for limited purpose of attempting to impeach or

impugn the veracity of truthfulness of that witness

and for no other purpose. They may not be considered

by you as evidence against the Defendant, Dirk

Webster, who was not present when the statements

were made, and was denied meaningful cross

examination of the witness during the course of this

trial.”

[1,2] On appeal, this Court must presume that the jury

obeyed the trial court’s instructions in reaching its verdict.

Tyson v. State, (1979) Ind., 386 N.E.2d 1185. When a jury

has been instructed to consider evidence on no other issue

except impeachment, we will assume that the jury followed

the instructions. Brown v. State, (1964) 245 Ind. 604, 201

N.E.2d 281. Moreover, in reviewing sufficiency claims, we

must exclude from our consideration any evidence that was

introduced to impeach the credibility of a witness. Such

evidence is not a part of the substantive case. Golverv. State,

A-37

(1970) 253 Ind. 536, 255 N.E.2d 657, 658, citing McAdams

v. State (1948) 226 Ind. 403, 81 N.E.2d 671. See also, Sickles

ve. Greybar, (3rd Cir. 1955) 219 F.2d 847, cert. den., 350 U.S.

827, 76 S.Ct. 57, 100 L.Ed. 739, reh. den., 350 U.S. 905, 76

S.Ct. 176, 100 L.Ed. 794, and cases cited therein.

Consequently, Allen’s prior testimony is not, as contended

by the State, additional evidence which may be considered

by this Court as supporting the verdict of guilty.

[3] We therefore, reverse the conviction, and conclude

that there is justification for retrial in this case. In the

typical case of a reversal based on the insufficiency of the

evidence, the double jeopardy clause of the Fifth

Amendment, applicable to the states by the Fourteenth

Amendment, requires a discharge of the defendant. Burks

vn. United States, (1978) 437 U.S. 1,988.Ct. 2141, 57 L.Ed.2d

1. This case is distinguishable from Burks, however. In that

case, the defendant’s conviction for robbery following a

trial in which he had raised the defense of insanity was

reversed by the Sixth Circuit Court of Appeals because the

government had not met its burden of proving sanity

beyond a reasonable doubt. The Court of Appeals

remanded the case to the district court where the defendant

was to have “a directed verdict of acquittal unless the

government presents sufficient evidence to carry its

burden on the issue of defendant’s sanity.” /d. at 2144. The

United States Supreme Court reversed this aspect of the

case, holding that a second trial is precluded once a

reviewing court has found the evidence legally insufficient

and that the only remedy available to a reviewing court isa

direction of a judgment of acquittal. The underlying

rationale for this approach is that the prosecution “has been

given one fair opportunity to offer whatever proof it could

assemble. Moreover, such an appellate reversal means that

the government’s case was so lacking that it should not have

even been submitted to the jury.” (Original emphasis.) /d. at

2150, 2151.

In the present case we cannot say that the State’s case was

lacking in this sense. This case, as presented at trial, would

A-38

have been sufficient, if believed by the jury, except for the

limitation on the use of Allen’s prior testimony. That

limitation arose when the trial judge determined that he

would give the final instruction restricting the jury’s use of

that testimony. Up to that point in time the prosecution

would have been warranted to a reasonable degree of legal

certainty in believing that this evidence would come in as

part of the substantive case against appellant Webster

under the ruling in Patterson v. State, (1975) 263 Ind. 55,

324 N.E.2d 482, and Stone v. State (1978) Ind., 377 N.E.2d

1372. Cf. Torrence v. State, (1975) 263 Ind. 202, 328 N.E.2d

214. It was the trial judge’s decision to give the restrictive

final instruction which in fact and in point of time rendered

the prosecution’s case insufficient to convict. If that ruling

had been made earlier the prosecution would have had an

opportunity at the trial to offer other available proof to

bolster its case.

Since we do not believe that the Burks rationale applies

here, we order retrial.

GIVAN CJ., and HUNTER and PIVARNIK, Ju.,

concur.

PRENTICE, J., dissents with opinion.

PRENTICE, Justice, concurring and dissenting.

I am in agreement with the majority holding reversing

the judgment. However, I do not agree that the appellant

can be retried, consistently with the proscription of Burks

v. United States, (1978) 437 U.S. 1, 98S.Ct. 2141, 57 L.Ed.2d

1. It is the viewpoint of the majority that, but for the

lateness of the admonition limiting the application of

Allen’s prior testimony, the State may have presented

additional incriminating evidence and that it was,

therefore, somehow denied a fair opportunity to offer its

best evidence. The same could as well be said under

innumerable circumstances where the verdict was an

acquittal. Certainly when the State’s best, and perhaps its

only evidence of guilt is excluded by the court, when

tendered, the State has been denied its opportunity. If that

exclusion was error, the denial has been unfair, in the sense

that it was not according to the rules. Nevertheless, the

acquitted defendant cannot be retried-even though the

ruling excluding the evidence be later reversed as a

reversed question. I do not believe that the Burks opinion

permits speculation as to why sufficient substantive

evidence was not presented or upon what additional!

evidence might be forthcoming if the prosecution is given

another try. Rather, it is my opinion that the rationale

behind the double jeopardy proscription is simply that,

considering the resources available to the State and the

grave injustice done one who is erroneously brought to

trial, it behooves the State to prosecute only upon firm

evidence and then to bring forth its best case or suffer the

consequences. Accordingly, | would order an acquittal in

this case.

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Dirk WEBSTER, Appellant,

Vv.

STATE of Indiana, Appellee.

No. 12818350.

Supreme Court of Indiana.

Dec. 14, 1982.

Following reversal of defendant’s original conviction and

remand, 413 N.E.2d 898, defendant was again convicted

before the Lake Superior Court, James E. Clement, J.. of

murder, and he appealed. The Supreme Court, DeBruler,

J., held that: (1) double jeopardy did not bar defendant's

retrial, even though defendant's original conviction had

been reversed on the basis of insufficiency of evidence,

since the case, as presented at original trial, would have

been sufficient to support guilty verdict except for

limitation on use of witness’ prior testimony, and (2)

evidence sustained conviction.

Affirmed.

Prentice, J., dissented.

1. Criminal Law 193

Double jeopardy did not bar defendant’s retrial, even

though defendant's original conviction had been reversed

on the basis of insufficiency of evidence, since the case, as

presented at original trial, would have been sufficient to

support guilty verdict except for limitation on use of

witness” prior testimony. U.S.C.A. Const. Amend. 5.

2. Criminal Law 1144.13 (6), 1159.2(7. 9), 1159.41)

In reviewing a claiming of insufficiency of evidence,

Supreme Court does not weigh the evidence or resolve

questions of credibility, but only looks to the evidence and

reasonable inferences therefrom which support the

verdict; if from that viewpoint there was evidence of

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probative value from which reasonable trier of fact could

conclude that defendant was guilty beyond reasonable

doubt, conviction will be affirmed.

3. Homicide 250

Evidence in prosecution for murder sustained

conviction,

Terry C. Gray, Gary, for appellant.

Linley E. Pearson, Atty. Gen., Palmer K. Ward, Deputy

Atty. Gen., Indianapolis, for appellee.

DeBRULER, Justice.

Defendant-appellant, Dirk Webster, was. originally

charged with and convicted of two counts of murder, Ind.

Code §35-42-1-1(1) (Burns 1979 Repl.), and was sentenced

to serve two consecutive forty-five vear terms of

imprisonment. Following an appeal to this Court,

defendant's conviction was reversed, and a new trial was

ordered. Webster vo State, (1980) Ind. 418 N.E.2d 898

(Prentice, J., dissenting). Defendant was again convicted

upen retrial, and the same sentence was imposed. In this

appeal, defendant contends that the retrial was barred by

the double jeopardy clause of the Fifth Amendment to the

United States Constitution and of Article 1, §14 of the

Indiana Constitution. He also urges that there was not

sufficient credible evidence to support the verdict rendered

here.

{1} The question of whether defendant's retrial was

prohibited by the double jeopardy clause has already been

considered, discussed and decided adversely to defendant’s

claim in this case on its initial appeal. We said there that

while in the usual case a_ reversal for evidentiary

insufficiency precludes a retrial because of doulhle

jeopardy considerations, Burks v United States, 1978) 437

U.S.1,988.Ct. 2141.57 L.Ed.2d 1, the Burks rationale does

A-42

not apply in this case. Webster, supra, 418 N.E.2d at 902.

Although the State may not appeal! from an acquittal of a

defendant by the trier of fact, no matter how erroneous the

foundation for that acquittal, Fong Foo v. United States,

(1962) 369 U.S. 141, 82 S.Ct. 671, 7 L.Ed.2d 629, here, a

judgment of conviction was rendered by the jury in

defendant’s first trial. The question of whether the State

had “one fair opportunity to offer whatever proof it could

assemble”, Burks, supra, 437 U.S. at 16, 988.Ct. at 2150, 57

L.Ed.2d at 12, may be considered when a judgment of

conviction has been returned and defendant appeals,

alleging evidentiary insufficiency, and attempts to avoid

retrial. ;

Prior to defendant’s retrial, he filed a motion to dismiss

based on the double jeopardy claim. At a hearing on that

motion, the trial judge denied such relief, determining that

he should conduct the retrial we had ordered. The denial of

the motion was not error.

Defendant also claims that the State did not present

credible witnesses whose testimony could be believed

beyond a reasonable doubt, and therefore there was

insufficient evidence to support the jury’s verdict. He

argues that Aurelius James Allen, an accomplice who

testified and described defendant’s participation in the

murders, impeached his own credibility and was not a

believable witness. The determination of a witness’s

credibility, however, is for the jury. Taylor v. State, (1981)

Ind., 425 N.E.2d 141.

{2,3] Inreviewing a claim of insufficient evidence, this

Court does not weigh the evidence or resolve questions of

credibility, but only looks to the evidence and reasonable

inferences therefrom which support the verdict. Smith v.

State, (1970) 254 Ind. 401, 260 N.E.2d 558. If from that

viewpoint there was evidence of probative value from

which a reasonable trier of fact could conclude that a

defendant was guilty beyond a reasonable doubt, we will

affirm the conviction. Taylor v. State, (1973) 260 Ind. 64,

A-43

291 N.E.2d 890; Glover v. State, (1970) 253 Ind. 536, 255

N.E.2d 657. Allen testified directly about the defendant’s

participation in the murders of Betty DeBowles and Robin

Thomas and detailed the events surrounding these crimes.

The jurors could have concluded beyond a reasonable doubt

from this and other evidence that the defendant was guilty.

The conviction is affirmed.

GIVAN, C.J., and HUNTER and PIVARNIK, Ju.,

concur.

PRENTICE, J., dissents.

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