Opposition Brief — Duckworth v. Webster

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Supreme Court. +

Ya, oO

ek ee PPTL | JAN 16 1986

as ‘fs ; HiNAL JOSIP F. SPANIOL

<“ oh l alk i ‘

CLERK

No. 85-1005

. IN THE

SUPREME COURT OF THE UNITED ST/TES

OCTOBER TERM, 1985

JACK DUCKWORTH,

SUPERINTENDENT, INDIANA STATE PRISON

Petitioner,

v;

DIRK WEBSTER,

Respondent.

On Petition For A Writ Of Certiorarl

To The United States Court Of Appeals

For The Seventh Circuit

BRIEF IN OPPOSITION

Jerold S. Solovy*

J. Kevin McCall]

JENNER & BLOCK

One IBM Plaza

Chicago, Ilinois 60611

(312) 222-9350

Attornevs for Respondent

2 r

*Counsel of Record

TABLE OF CONTENTS

PAGE

TABLE OF RTM e CEG s «66 Ki aN SOSA CRN W EO MR SKS OS ii

pUope 8 eg ee eee ee ee ee eee ee eee oe eS ee ee 1

STAT Clee See Teme, GAs 04d A eA ho eee OR See ee 1

A. COURSE. GE PEGOWEUIAIR. 6.00 i kde eb addci cies 1

B. Facts Material to the Consideration

of the Questions Presented............... 1

SCAGE COUFT PROGCOGCENGE. 6.4 66 ck cases 1

Federal Court Prooeedings.........06csnes 5

REASONS FOR DERE cers Eee PRES kha chk ek eee ewesinse ns 6

The Issues Raised by Petitioner

Are Moot Because of Respondent's

ROl@ASG EPROM CURSE «occ ceases ccaecnss 7

a3. The Seventh Circuit Correctly Determined

that Webster's Initial Conviction Was

Reversed Due to Evidentiary

get, Se rae ae er es eee ee 8

142. The Limitation on the Use of Allen's

Prior Testimony Was Not Erroneous........ 9

IV. The Seventh Circuit Correctly

Determined that Respondent's Retrial

Was Barred by the Double Jeopardy

Clause Regardless of Whether the

Trial Court Erred in Limiting the

USO OF PLLSL: PORTIMORS «sina a san nen sin eaks il

CONC LUS 20 ss 6s ke aS OE Cee ee ee Cae ee RSS ke Shwe 14

=e

TABLE OF AUTHORITIES

Cases

Burks v. United States, 437 U.S. 1, 98 S.Ct.

DAE OOP Nes 55 04054 OKA WK A RRA N SAN SARA ee

Carter v. State, 412 N.E.2d 825 (Ind. fpp.

CO PPS oT ee Te eee ee eRe

C.i1.m. ¥. Betate of Bosch, 367 U.S. 456, 87 5.Ct.

‘ye Rt) 32 PG Rpa pes ee er eee ee ee ee

Cort v. Ash, 422 U.S. 66, 95 S.Ct. 2080 (1975).....

Feelea v. leree), 727 F.2d 251 (7th Cir. 1964)......

Fong Foo v. United States, 369 U.S. 142, 82 S.Ct.

7 Oe”. : ar iy eee ee ee

Hodges v. United States, 368 U.S. 139, 82 S.Ct.

BL te PRR Gk Ne a ea

Jones v. State Board of Education of Tennessee,

. yao ie: Pe ee. Ti . ee SD en

North Carolina v. Rice, 404 U.S. 244, 92 S.Ct.

EL sh REGS err eT eT eT Tee TT ea

Pasadena City Board of Education v. Spangler,

Sa? Uios See, BS BSxGes SOUe CASPER s 6c cease

Pierson v. Ray, 386 U.S. 547, 87 S.Ct. 1213

By 74 Re A er ene are a eee ea

Richardson v. United States, 104 S.Ct. 3081

PUTA AGCAGACERSES ERVAESA NOR ROHR ESS D REO OS

Sanabria v. United States, 437 U.S. 54, 98 S.Ct.

oe Bolo, | reer rrr oreT TTT Tre Te Terre eee

Sumpter v. DeGroote, 552 F.2d 1206 (7th Cir.

ea ae hi bow ah ws 5G AL ER Bly OW ew Oe

Tapp v. Lucas, 658 F.2d 383 (Sth Cir. 1981),

cert. denied, 456, U.S. 972 (1982)............

Tapp v. State, 347 S.2d 974 (Miss. 1977), 373

S.26 TGR CMRBG. PEI). 2. nce wncccanescessewenn

Tibbs v. Fleriga, @57 U.S. 31, 102 $.Ct. 2211

Pl DARA Aer peer rr ey eer ee ee ee

United States v. Anderson, 716 F.2d 446 (7th Cir.

2) See arerrrrere Te ree Tee ee es eee.

United States v. Baker, 722 F.2d 343 (7th Cir.

1983), cert. denied, Baker v. United States,

EOE. BCE. ee CEES FARA A oR AAR eRe hes Re KS

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

cer.. Gentes, 450 U.S. B46 (€29G2). 2.6 ccc neses

United States v. Durham Lumber Co., 363 U.S. 522,

3 fe . et Re) eee eee

United States v. Ember, 726 F.2d 522 (9th Cir.

PRES Ren eK RS KAS SRR EAS SRA SO SI RR eee

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

1971), cert. denied, 410 U.S. 984 (1973)......

atio

Cases

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

i) eee ee

tie ee ee ee oe 2 a ee a a a i

United States v. Mandel, 591 F.2d 1347 (4th Cir.

1979), cert. denied, 445 U.S. 961 (1980)......

United States v. Martin Linen Supply Co.,

430 U.S. 569, 97 S.Ct. 1349 i ig: Se ee eee

United States v. Sisson, 399 U.S. 267, 90 S.Ct.

2117 (1969).....

ie ee i ee oe ee ee a a oe a re

Watkins v. State, 446 N.E.2d 949 (Ind. 1983).......

Wolf v. Weinstein, 372 U.S. 633, 83 S.Ct. 969

¢3 >) rere

SEC eSae te he bOGh 6-4. 2 Oe 8 ORS OSS

eee ee ee ee ee ee eh oo en i oe he ie ae

ee i ee ee ee ne a oe a ee es

Oe ee ee oe oe a we i te i a war we er an ee

-1li-

PAGE

10

10

INTRODUCTION

The petition for a writ of certiorari omits rele-

vant facts and distorts the ruling of the court of appeals.

The dec‘sion of the court of appeals was based on precedent

established by this Court and presents no novel or important

questions of federal law worthy of this Court's attention.

In fact, the central issue upon which petitioner seeks

review relates to a hypothetical situation not presented by

the facts of this case.

STATEMENT OF THE CASE

A. Course of Proceedings.

Petitioner's recitation of the course of proceedings

omits one key fact. As of July 18, 1985, the court of appeals

had not yet issued its mandate directing the issuance of a

writ of habeas corpus. The mandate of the court of appeals

did not issue until September 19, 1985. Thus, the writ of

habeas corpus, entered pursuant to the district court's order

of July 18, 1985, was issued sua sponte, and not pursuant to

the mandate of the court of appeals.

B. Facts Material to the Consideration

of the Questions Presented.

State Court Proceedings.

Respondent Dirk Webster was charged with the

murders of Robin Thomas and Betty DeBowles. (R. I at me nd

The principal witness against Webster was former co-defendant

Aurelius James Allen. Allen agreed tc testify against

Webster, and others, as part of a plea agreement pursuant to

which Allen pled guilty to charges of manslaughter and

robbery in exchange for the dismissal of the two murder

counts and a recommendation of a six-year sentence. (R. I

at 149-150, 402-403) Prior to testifying in Webster's first

trial, Allen had told a number of different versions of the

A" R. I refers to the transcript of proceedings in appellant's

initial trial. R. II refers to the transcript of proceedings

in appellant's second trial.

Thomas/DeBowles murders some of wh.ch implicated Webster,

while others implicated two different individuals. (R. II

at 360-373.)

When Allen was called as a prosecution witness in

Webster's first trial, he failed to implicate Webster.

(R. I at 147-247.) The prosecution then sought to use

Allen's prior testimony to refresh his recollection and

ultimately to impeach him. (R. I at 182-247, 350-380,

452-484.) The statements selected by the prosecution were

those versions of the murders which implicated Webster.

When Allen was confronted with this testimony, he invariably

stated both that he could not remember the events surround-

ing the murders and that he could not remember giving testi-

mony which implicated Webster. (R. I at 182-247, 350-380.)

Allen persisted in these denials even after being threatened

with the rescission of his plea agreement. (R. I at 162-172,

345-349, 402-414, 421-422.)

The prosecution first sought to use Allen's prior

testimony during Allen's direct examination. At that time,

defense counsel requested an instruction limiting the use of

that testimony to impeachment. Initially, the trial court

deferred ruling on that request, but later the court warned

the prosecution that Webster might be entitled to the limiting

instruction. The trial court also observed that Allen's

prior testimony appeared to be the key evidence against

Webster. (R. I at 181-182, 390-395.)

When Allen's prior testimony was subsequently read

into the record, defense counsel renewed his request for a

limiting instruction. (R. I at 452-484.) The trial court

again indicated that it might give the liimiting instruction

after further consideration. Before the prosecution rested,

it was aware that the limiting instruction would be given as

a final instruction. (R. I at 486-487.)

The defense rested immediately after the prosecu-

tion closed its case. The court then distributed its proposed

final instructions. The prosecution stated that it had no

objection to any of those instructions. (R. I at 495.)

*

Proposed instruction number eight,’ the limiting

instruction given by the court, read as follows:

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. Subsequently, the prosecutors

were permitted to read into evidence state-

ments that were agreed by the parties to

have been made by the witness Aurelius James

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 wit-

ness 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

cries. 2. TF at 39.)

Netwithstanding the limitation on the use of Allen's prior

testimony, the jury returned a verdict of guilty on both

counts.

On direct appeal to the Supreme Court of Indiana,

Webster raised nine issues for review. The Indiana Supreme

Court reached only one of those issues -- that the evidence

presented was insufficient to support a finding of guilt

beyond a reasonable doubt. After reviewing the evidence

which tied Webster to the murders, the Indiana Supreme Court

concluded:

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. (Petitioner's Appendix at A-35.)

According to the Indiana Supreme Court, the trial court's

instruction limiting the use of Allen's prior testimony had

rendered the prosecution's case insufficient.

'

be? Because one proposed instruction was dropped at Webster's

request, proposed instruction eight was read as instruction

seven. (R. I at 59.)

aq

ee _ a 2 , ee

(Petitioner's Appendix at A-37.) The Indiana Supreme Court

did not hold that the trial court erred in giving that

limiting instruction. It did not even discuss whether

Webster was entitled to the limiting instruction. It did

criticize the trial court's timing in issuing the ‘instruction:

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. (Petitioner's Appendix

at A-38.)

In the opinion of the Indiana Supreme Court, the

prosecution could have reasonably believed that Allen's

prior testimony would come in as substantive evidence, until

the trial court gave the limiting instruction.~’ (Petitioner's

Appendix at A-38.) According to the Indiana Supreme Court,

the timing of the limiting instruction deprived the prosecu-

tion of a fair opportunity to present additional evidence

xe

against Webster.—“ Upon that basis. it believed Webster

could be retried, notwithstanding its finding of evidentiary

insufficiency. (Petitioner's Appendix at A-37, A-38.)

Justice Prentice of the Indiana Supreme Court

dissented as follows:

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.

- Nevertheless, the acquitted defendant

cannot be retried -- even though the ruling

excluding the evidence be later reversed as

a reversed [sic] question. I do not believe

that the Burks opinion permits speculation

as to why sufficient substantive evidence

was not presented or upon what additional

*/ At the time of Webster's first trial, it appears that

the law of Indiana was somewhat unclear as to whether Webster

was entitled to a limiting instruction. The Indiana Supreme

Court has since ruled that a limiting instruction should be

given in circumstances identical to those confronting the

court in Webster's initial trial. Watkins v. State, 446 N.E.2¢a

949, 960 (Ind. 1983).

**/ At no time did the prosecution request the opportunity

to present additional evidence against Webster even though

it was warned that the limiting instruction might be given.

The Indiana Supreme Court's opinion made no reference to

those warnings. (R. I. 390-395, 484-488)

-4-

evidence might be forthcoming if the prose-

cution 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, I would order an acquittal in

this case. (Petitioner's Appendix at

A-39.)

Upon retrial, Webster was again convicted. The

Indiana Supreme Court affirmed that conviction. (Petitioner's

Appendix at A-43.)

Federal Court Proceedings.

On June 2, 1983, Webster filed a petition for a

writ of habeas corpus in the United States District Court

for the Northern District of Indiana, raising only one

issue -- whether it was a violation of the prohibition against

double jeopardy to retry the defendant after his initial

conviction was reversed upon the grounds of insufficient

evidence. (Petitioner's Appendix A-26.) The district court

denied Webster's petition upon the ground that Webster's

original conviction was reversed due to trial court error,

not insufficient evidence. (Petitioner's Appendix A-29.)

In so holding, the district court acknowledged that: "This

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

is not a close call." (Petitioner's Appendix A-29.)

On November 18, 1983, the district court certified

that there was probable cause for an appeal.

On appeal to

the United States Court of Appeals for the Seventh Circuit,

Webster raised one issue: whether it was a violation of the

constitutional prohibition against placing a defendant twice

in jeopardy to order Webster to be retried after his initial

conviction was reversed due to the insufficiency of the

evidence. (Petitioner's Appendix A-1, A-2.)

On July 11,

1985, the court of appeals resolved that issue in Webster's

favor, reversed the judgment of the district court and

remanded the case with instructions to issue a writ of

habeas corpus. (Petitioner's Appendix A-19.)

-5-

In reaching its decision, the court of appeals

made the following determinations:

(1) Webster's initial conviction was reversed. due

to the insufficiency of the evidence, not trial

error. (Petitioner's Ar endix A-13.)

(2) The Indiana Su,» “+. Court did not hold that

the trial court had erred in limiting the use of

Allen's prior testimony. (Petitioner's Appendix A-14. )

(3) The State of Indiana failed to object to the

instruction limiting the use of Allen's prior

testimony, thus waiving any objection to that

instruction. (Petitioner's Appendix A-14. )

(4) The prosecution was not denied a fair oppor-

tunity to present additional substantive evidence

against Webster. (Petitioner's Appendix A-16.)

(S) Even if the trial court had committed error

which prejudiced only the prosex, tion, if Webster's

conviction was reversed due to insufficient evidence,

Webster could not be retried consistent with the

double jeopardy clause. (Petitioner's Appendix A-17. )

Each of those determinations was correct.

REASONS FOR DENYING THE WRIT

The petition for a writ of certiorari raises no

important constitutional or statutory issues. Essentially,

the court of appeals agreed with Webster that: his initial

conviction was reversed due to the insufficiency of the

evidence, that that evidentiary insufficiency was not the

result of trial error, that even had the trial court erred

the State of Indiana had waived any such error, and that

even if the error had not been waived Webster could not be

retried. The court of appeals resolved those issues based

upon the unique facts and circumstances of the case as well

as the applicable law of Indiana.

In seeking review, petitioner asks this Court to

reject the court of appéals' determination as to the basis

for the reversal of Webster's initial conviction, as

-6-

reflected in the record, as well as its inteipretatio:. of the

law of Indiana. In so doing, Petitioner asks this Court to

review a hypothetical factual situation. Indeed, in view of

Webster's release from custody, even that hypothetical issue

is moot.

Given, the particular factual context in which

this case arises, the clarity of the precedent upon which

the court of appeals decision was based, and the absence of

any novel or important federal question, the petition for

certiorari should be denied.

I.

The Issues Raised by Petitioner

Are Moot Because of Webster's

Release from Custody.

On July 11, 1985, the court of appeals rendered

ats initial decision, reversing the judgment of the district

court. Under the applicable rules, the mandate of the court

would not have issued any earlier than August 1, 1985.

Fed. R. App. P. 41. Ultimately, the mandate was issued on

September 19, 1985, seven days after the denial of the

state's petition for rehearing. (Appendix at A-l.) Notwith-

standing the absence of a mandate, on July 18, 1985, the

district court issued a writ of habeas corpus ordering

respondent's immediate release from custody. Shortly there-

after, respondent was released from custody.

The district court's order of July 18, 1985 purports

to be made pursuant to the mandate of the court of appeals.

(Appendix at A-2.) However, because the mandate had not yet

issued, the district court must have been referring to the

opinion of the court of appea!s.

In apparent recognition of the underlying strength

of the court of appeals’ opinion, —’ the district court acting

Sua sponte, and not pursuant to the court of appeals' mandate,

of In light of the district court's prior recognition that

this was “a close call" (Pet. App. at A-29), it is only

reasonable to believe that the district court acted in

recognition of the underlying strength of the opinion.

Ps

issued the writ of habeas corpus which resulted in Webster's

release. The State of Indiana has not appealed from

the issuance of the writ which resulted? in Webster's

release and the time to do so has expired. Fed. R. App.

Proc. 4: |

Inasmuch as respondent has been released from

custody pursuant to a separate writ ofr habeas corpus, there

is no longer any actual controversy relating to the decision

of the court of appeals. Accordingly, the issues raised by

petitioner are moot. See Pasadena City Board of Education v.

Spangler, 427 U.S. 424, 430, 96 S.Ct. 2697, 2701, 2702

(1976); North Carolina v. Rice, 404 U.S. 244, 238, 92 S.Ct.

402, 404, 405 (1971).

ii.

The Seventh Circuit Correctly Determined

that Webster's Initial Conviction Was Reversed

Due to Evidentiary insufficiency.

In an apparent attempt to confuse the issues,

petitioner continues to assert that the Supreme Court of

Indiana reversed Webster's initial corviction due to trial

error, rather than evidentiary insufficiency. (Petition

at 5, 20.) Petitioner seeks to force the basis for the

reversal of Webster's initial conviction into the "trial

error“ pigeonhole to avoid the precedent of Burks v. United

States, 437 U.S. 1, 98 S.Ct. 2141 (1978). That attempt must

fail in iight of the unequivocal language of the Indiana

Supreme Court.

At the outset of its initial opinion, the Indiana

Supreme Court noted that Webster had presented nine issues

for review, but that it need discuss only one -- "that the

evidence presented by the State was insufficient to support

a finding of guilt beyond a reasonable doubt." (Petitioner's

Appendix at A-32.) After reviewing the substantive evidence

against Webster, the court concluded,

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. (Petitioner's Appendix at A-35.)

ae

—

In its second opinion, the Indiana Supreme Court

confirmed that Webster's initial conviction was reversed due

to insufficient evidence, when it again sought to justify

his retrial by distinguishing Burks:

{w]hile in the usual case a reversal for

evidentiary insufficiency precludes a

retrial because of double jeopardy consid-

erations, [citation omitted], the Burks

rationale does not apply in this case.

(Petitioner's Appendix at A-41.)

Any remaining doubt as to the basis for the

reversal of Webster's initial conviction is removed by the

clear lang e of Justice Prentice's dissent:

i do not believe that the burks opinion

permits speculation as to why sufficient

substantive evidence was not pre-

sented. .. . (Petitioner's Appendix

at A-39.)

As 1S apparent from the Indiana Supreme Court's

opinions, that court reversed Webster's initial conviction,

due to the insufficiency of the evidence, but mistakenly

believed that Burks permitted them to order a new trial.

(Petitioner's Appendix at A-37.)

iit.

The Limitation on the Use of Allen's

Prior Testimony Was Not Erroneous.

Petitioner's entire argument hinges upon the

premise that the trial court erred in limiting the use of

Allen's prior testimony. Petitioner's position may be sum-

marized as follows: Webster's initial conviction was

reversed due tc trial error because the evidence wculd not

have been insufficient if the trial court had not errone-

ously limited the use of Allen's prior testimony, or alter-

natively, even though Webster's conviction was reversed due

to the insufficiency of the evidence, Webster may be retried

because the evidentiary insufficiency was the result of

x

trial court error.’

*/ Petitioner concedes that normally, a defendant whose

conviction is reversed due to evidentiary insufficiency

cannot be retried. Burks v. United States, 437 U.S. l,

98 S.Ct. 2141 (1978); Petition at 14, 15.

aQeo

Regardless of how it is phrased, petitioner's

position depends upon the premise that the trial court erred

in limiting the use of Allen's prior testimony. That premise |

is not supported by the record. The court of appeals correctly |

found that the limitation on the use of Allen's prior testi-

mony was not erroneous, and that even if it were erroneous,

the State of Indiana waived any objection to the limiting

instruction. (Petitioner's Appendix A-14.) As the court of

appeals further observed,

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.

(Petitioner's Appendix A-24.)

Under these circumstances, where the record clearly

indicates that petitioner's position lacks merit, certiorari

should be deniec. Hodges v. United States, 368 U.S. 139,

139-40, 82 S.Ct. 235, 236 (1961). Indeed, certiorari should

be denied, even in those cases where the record is merely

cloudy with respect to the determinative facts upon which

petitioner relies. Jones v. State Board of Education of

Tennessee, 397 U.S. 31, 90 S.Ct. 779, 760 (1970).

To reach the central issue presented by petitioner,

this Court would have to reject the court of appeals' deter-

minations regarding the propriety of the limiting instruction

and the effect of the state's failure to object to that

instruction. However, such determinations of local law, by

a court of appeals, are entitled to great deference and are

not an appropriate subject of review.—’ Clearly, they do

not present important questions of federal law worthy of

this Court's attention. C.1.R. v. Estate of Bosch, 387 U.S.

456, 462, 87 S.Ct. 1776, 1781 (1967); Pierson v. Ray, 87 S.Ct.

L2s3, 4229; 1220. (2967); Cort Vv... Aen, 422 U.S. 66, 72,

els The propriety of those determinations is confirmed by

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

Carter v. State, 412 N.E.2d 825, 828-31 (Ind. App. 1980) and

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

95 S.Ct. 2080, 2085 fn.6 (1975); United States v. Durham

Lumber Co., 363 U.S. 522, 526, 527, 80 S.Ct. 1282, 1284,

1285 (1960); Wolf v. Weinstein, 372 U.S. 633, 636, 83 S.Ct.

969, 972 (1963).

LV.

The Seventh Circuit Correctly Determined

that Respondent's Retrial Was Barred by the

Double Jeopardy Clause Regardless of Whether the

Trial Court Erred in Limiting the Use of

Prior Testimony.

Assuming arguendo that the trial court's limitation

on the use of Allen's prior testimony was erroneous, the

court of appeals correctly determined that Webster could not

be retried once his initial conviction was reversed due to

the insufficiency of the evidence. (Petitioner's Appendix A-

17.) That determination was neither novel nor in conflict

with the precedent of this Court or any other circuit court

of appeals. Indeed, that holding was dictated by the prece-

dent of Burks v. United States, 437 U.S. 1, 98 S.Ct. 2141

{1978); Sanabria v. United States, 437 U.S. 54, 98 S.Ct.

2170 (1978); and Tibbs v. Florida, 457 U.S. 31, 41, 102

sCt. 2211, 2218 (1962).

Ww

Burks established that when a conviction is reversed

on appeal due to the insufficiency of the evidence as opposed

*

to trial error, the double jeopardy clause precludes

retrial of the defendant. Burks v. United States, supra,

437 U.S. at 15-17, 98 S.Ct. at 2149-2150. Sanabria further

clarified that where a defendant is acquitted by the court

because of insufficient evidence, the double jeopardy

et In Burks, trial error was defined as “a determination

that a defendant has been convicted through a judicial

process which is defective in some fundamental respect."

Burks, supra, 437 U.S. at 15. Thus, the court of appeals

correctly observed that "trial error" within that context

means error that prejudices the defendant, not the state.

(Petitioner's Appendix A-17.) See also, Sumpter v. DeGroote

992 F.2d 1206, 1211-12 (7th Cir. 1977).

trial court error favorable to the defendant cculd

hardly have led to the defendant's conviction. Such an

error would be harmless. Feela v. Israel, 727 F.2d 151, 157

(7th Cir. 1984); United States v. Baker, 722 F.2d 343, 346

(7th Cir. 1983), cert. denied, Baker v. United States,

104 S.Ct. 1312 (1984); United States v. Anderson, 716 F.2d

446, 449 (7th Cir. 1983).

ete

clause bars retrial of the defendant, even though the eviden-

tiary insufficiency was the result of the trial court's

erroneous exclusion of evidence. Sanabria v. United States,

supra, 437 U.S. at 69-70, 98 S.Ct. at 2181. See also Fong

Foo v. United States, 369 U.S. 142, 82 S.Ct. 671 (1969).

The only conceivable distinction between Sanabria

and this case is that in Sanabria the trial court recognized

that its evidentiary ruling rendered the evidence insufficient,

and thus entered a judgment of acquittal. Sanabria v.

United States, supra, 437 U.S. at 68-69, 98 S.Ct. at 2181.

However, for purposes of double jeopardy protec-

tion, a finding of evidentiary insufficiency by a reviewing

court has the same effect as an acquittal by the trial

court -- it absolutely shields a defendant from retrial.

Richardson v. United States, 104 S.Ct. 3081, 3086 n.5 (1984);

Tibbs Vv. Flioriga, gupte, €5/7 U.S.. at 42, -202 S.Ct. at 2216;

Burks v. United States, supra, 437 U.S. at 11, 12, 98 S.Ct.

at 2147; United States v. Sisson, 399 U.S. 267, 290, 90 S.Ct.

2117, 2129-2130 (1969). See also United States v. Martin

Linen Supply Co., 430 U.S. 564, 572-573, 97 S.Ct. 1349,

1354-1358 (1977).

Accordingly, once it is determined that the evidence

is insufficient to sustain a conviction, no further inquiry

ls necessary; that defendant is absolutely protected from

retrial. As the court of appeals here stated:

regardless of whether a trial court

commits error that results in prejudice

only to the prosecution, if the conviction

is reversed for insufficient evidence, the

reviewing court 1s barred by the double

jeopardy clause from ordering a retrial

(Petitioner's Appendix at A-17).

Petitioner cites a number of cases purportedly in

*

conflict with the decision of the court of appeals.— None

of those cases 1S apposite; there is no conflict between the

circuit courts of appeals. In each of the cases cited by

= Petitioner's perceived conflict ignores the court of

appeals' finding that here the trial court committed no

error prejudicial to the prosecution. (Petitioner's

Appendix at A-14, A-24)

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CONCLUSION

For the foregoing reasons, the petition for a writ

of certiorari should be denied.

) -

Respectfully subm:tted

One IBM Plaza

Chicago, IL 60611

(312) 222-935

Attorne for Respondent

United States Court of Agpesis

Bor The Sebenth Cireuit

Thomas Zz Strubbe 219 South Deardern Street

Clerk Chicage, Bilinois 60604

312-433-3850 September 19, 1985

Mr. Richard E. Timmons =

Clerk, U.S. District Court il

305 Federal Building

204 South Main Street

South Bend, Indiana 46601 ¢ 5

SEP 24 1995

RICHARD .

' IMMONS

DIRK WEBSTER, cong STRICT Coupe HERR

" : t

Bias: _Petitioner-Appellant, STRICT OF IND ian

Vs

JACK R. DUCKWORTH, Warden, and the INDIANA ATTORNEY GENERAL

Respondents-Appellees. '

_ SF ee . mr

o > %e a

sar e ~2n9 ns :

U.S.C.A.-7 No ___ 83-3096 ae,

~ . 4 2N

District Court No. —._.__83-€-306

at ’ . oe

Dear Clerk oe

Herewith is the mandate of this Court in the above-entitled appeal. “A certified cop,

of the judgment and a cupy of the opinion of the Court, if any, and any direction as to costs

shall constitute the mandate.” (F.R.A.P. 41(a)). | am also returning the onginal! rd of

your District Court, which was transmitted to this office for use on appeal

Please acknowledge receipt on the enclosed cupy of this letter

Contents of Record

1 V pleadings filed 11-28-83, Sincerely yours

2 V transcripts filed 11-28-83,and THOMAS F. STRUBBE, Clerk

5 V briefs from State records, Y,

\

a < Ms a Fe

(entire record) %

O —— B < ine Calderon

5 c = a —_ -

P- DY ~- PS

Date é A, ‘ccieteeteeianene Deputy Clerk

Received abov + EREE. ... rx of the United States Court of

Appeals for the Se 1 Circult,

- 6€P 3 01985

CA Zs vem 2 7 f ‘ Cy 7

ON DOCKET —~ _ ~lerk of Dist rial Court (

Copies mailed to

Joseph M. Kalady, Legal Assistant, P.O. Box 41-22397, Michigan City, I

Jerold S. Solovy, One IBM Plaza, 44th Floor, Chicago, IL 60611

Robert B. Wente, Office of Attorney General. 219 State House,

Indianapolis, IN 46204

Note te Counsel:

If any physical and large documentary exhibits have been filed in the above-entitled

cause, they are to be withdrawn ten days from the date of this notice. Exhibits not

withdrawn during this period will be disposed of

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF INDIANA

SOUTH BEND DIVISION

DIRK WEBSTER,

Petitioner,

CAUSE NO. S 83-0306

Vv.

JACK R. DUCKWORTH, Warden and

)

)

)

)

)

)

)

the INDIANA ATTORNEY GENERAL, )

)

Respondents. )

ORDER

In accord with the dictates of the Seventh Circuit Court of Appeals

mandate in Webster v. Duckworth, No. 83-3096 (7th Cir., July 11, 1985),

this court hereby GRANTS the writ of habeas corpus and hereby Orders the

immediate and unconditional release of Dirk Webster fram the custody of

the State of Indiana. , SO meee f

Entered this A day of ph, , 1985.

ae

p-/ blide

CHIEF JUNGE, UNITED STATES DISTRICT COURT

Ses Webster

Wente

Warden Duckworth

Order book