*1 only person type where the was the defendant of rebuttal evidence only that Adkins give. who the to which the could rebut could This is strongest Adkins' argu Compare ment, but, Hastings, although state referred. may matter not be (prosecutor doubt, F.2d at 301 said no one free had from we do not believe that his occurred; rapes only defendants silence at trial is the “natural and neces this), Rothman, sary” could do with 567 F.2d at inference to be drawn from these (other could witnesses rebut evidence remarks. is This case like United numbers). telephone Subject as (7th to these Buege, States v. 578 F.2d Cir.), limitations, prosecu- denied, Fifth Amendment cert. 439 U.S. may failings tor comment on the where the unrebutted testimony defense.6 was about the contents of tele phone government call between the witness prosecution’s Adkins divides the and the defendant. isNor it like Hastings, groups: comments three direct into refer supra, where testimony unrebutted testify; ences to his failure to indirect ref rapes that victims that had oc erences; and references to the State’s case curred, Burke, supra, or which involved a group This last unrefuted. consists of prosecution conversation between a wit the prosecutor’s statement that “The ness and the defendant. Unlike those only state’s evidence is the evidence in the cases, it is not hard imagine that others case,” and question, a rhetorical “Ladies might knowledge besides Adkins have Gentlemen, case, if that wasn’t the possession his property, of the especially why say we We rest?”. do not believe that since keeping he was not it at his home at general “naturally these statements would Thus, the time it that, was found. we hold necessarily” jury remind the that Ad although problematic, some were none of testify. kins did not What Adkins refers to prosecutor’s comments to which Adkins as the direct and indirect references relate objects violated his Fifth and Fourteenth piece testimony to one of evidence: that privilege. Amendment possession Adkins was found in property judgment of the district court First, belonging to prosecu the victim. Affirmed. tor noted that this was unrebut ted and said that “the defense should have
put they witnesses on the if stand could
have.” phrase Adkins claims that “if
they “unequivocal could have” refer legal
ence to the infirmity,” defendant’s
fact that he could not without risk ing inculpatory the admission of his state BROWN, Petitioner-Appellant, Delores Appellant’s ment. Brief at 29. We cannot agree. Especially in view of the fact that Attorney Clarence TRIGG and Indiana prosecutor (in said plu-. “witnesses” General, Respondents-Appellees. ral), we think that the natural inference is No. 85-2449. they “if any that she meant had favorable witnesses.” Appeals, United States Court of question
There is a closer with this Seventh state- Circuit. objects ment and another to which Adkins Argued Feb. 1986. explain possession his of the —“[D]oes May Decided 1986. property? explanation, We have heard no put no have witness on the stand to inferentially tell happened.” us what might
These be indirect references to the innocence, supra, prosecutor As may noted prove also Adkins must his it but imply that judge’s the defense jury carries shares the found that the corrections and the proof. burden of the enough The district court found prejudice instructions were clear that no prosecution improperly suggested appealed ruling. resulted. Adkins has not *2 Leatherman, Mehl, Mehl,
Thomas M. Bee- Leatherman, Goshen, Ind., peti- son & for tioner-appellant. Office, Wente, Atty.
Robert B. General’s Indianapolis, Ind., respondents-appel- for lees. COFFEY, CUDAHY
Before
Circuit
EVANS,
Judges,
Judge.*
District
EVANS,
TERENCE T.
District Judge.
of two
Delores Brown was convicted
felony
of
murder in the Circuit
counts
County,
of
Indiana. The
Elkhart
Court
by the Indiana
convictions were affirmed
State,
Brown v.
Court,
Supreme
(Ind.1983).
for
petition
Brown’s
N.E.2d
corpus
of habeas
the issuance
a writ
States District Court
United
Northern District
Indiana. She
for the
denial
appealing
here
the district court’s
petition.
We affirm.
appeal:
issues
us on this
Two
are before
first,
improperly
whether the state court
regarding
psychological evidence
excluded
second,
capacity;
Brown’s mental
improperly
admit-
trial court
whether
trial,
ted, during
testimony that a
by
at-
examiner hired
Brown’s
polygraph
given during
juvenile
court
torney had
hearing.
hearing
That
resulted
waiver
Brown,
crimes
at the time the
*
Evans,
designation.
Judge
T.
District
Honorable Terence
Wisconsin,
sitting
for the Eastern District
committed,
probability
doing
to adult
that he is
being waived
so.”
I.C.
were
35-41-2-2-(b).
jury,
for trial.
convinced that
§
charged,
Brown committed
crimes
charges against Brown arose out of
guilty
felony
found her
of two counts of
tragic
Septem-
that occurred
events
murder.
was 16
1980. At that time Brown
ber
small child.
years old
mother of a
and the
trial,
attempted
*3
her
mother and two
She lived with
own
intelligence
other
introduce
test scores and
story
in
frame
younger brothers
a two
an
psychological evidence in
effort to show
Elkhart,
Apparently
in
Indiana.
house
know,
that she did not
at the time she
relationship
mother was
with her
Brown’s
fire,
endanger
started the
that she would
mother
and her
often
not the best. Brown
evidence,
psychological
human
The
life.
Brown’s cur-
argued
things
over such
maintains,
she
would have tended
show
to
boyfriend, and her school attendance
rent
grade level,
at a
that she functioned
fourth
2, Brown,
September
On
performance.
and
IQ
had an
men
of
was borderline
high
sophomore, went to
who was a
school
tally retarded. The trial court
the
excluded
per-
morning
in the
but left without
school
evidence, reasoning that it was irrelevant
5
home at
mission at 11 a.m. She returned
insanity
because Brown had not raised an
by her mother
p.m., and was confronted
defense,
because
rec
Indiana does not
regarding her unauthorized absence from
capacity
ognize a diminished
defense.
argument
An
While this
school.
followed.
by excluding
Brown
evi
contends
the
mother,
on,
going
her
to
unbeknownst
unconstitutionally
dence the trial court
de
plans
had made
to
home with
Brown
leave
opportunity
nied
the
to
her
demonstrate
They
boyfriend.
planned
her child and her
not
“knowingly.”
that she did
act
Pontiac,
to
her
go
Michigan,
boy-
to
where
that Indiana
the
Brown claims
law and
job
had a
an
In
apartment.
friend
ruling deprived
trial
her of
con
court’s
her
preparation
departure,
for
Brown had
right
prosecution’s
stitutional
to rebut the
couple
with things
a
of
packed
suitcases
proof on an element of
the offense
herself and
items were
baby.
for
her
The
charged.
review of her
Our
contention
in her
stored
mother’s car.
Israel,
guided by
v.
Muench
715 F.2d
approximately
p.m.
evening,
Cir.1983).
(7th
We held in
a
Muench that
gone
her
to
after
brothers
mother
constitutionally compelled to
state is not
bed,
gasoline
brought
Brown
of
into
can
recognize
capaci
the defense of diminished
intentionally
house. She then either
in
ty.
petitioners
not
Muench were
spilled
gas
or accidentally
some
poured
permitted
psychiatric
to introduce
testimo
living
carpet.
room
said that
ny
purpose
proving
for
of
lacked
wipe up
gasoline,
to
she tried
some of
capacity
to form intent
men
because of
gas-
struck
lit the
then
a match and
but
tal defect. The rationale for this
is the
rule
carpet.
says
oline-soaked
She
she then
questionable utility
psy
of psychiatric and
blanket,
to smother the fire with a
but
tried
in
chological
assessing
evidence
the effect
quickly spread
There
that it
out
control.
(in
of a mental condition
an
Muench it was
testimony to
that she
was also
the effect
personality”) on
“inadequate
capacity
to
sleeping
alert her
but
tried
brothers
form
at the time a
com
to
intent
crime is
grabbed
She then
child and
failed.
her
Camp
F.2d
mitted. 715
at
see also
house.
clothes and ran from the
Her
some
(11th
Wainwright,
not extend to witnesses called a defend- Also, pretrial hearing.
ant at a because right to
there is no constitutional the confi- proceedings,
dentiality of
petitioner argument on must lose her
point. COMPANY, SYRIAN ARABIAN OIL In- petitioner’s The district court’s denial of dividually, formerly Menhall d/b/a corpus writ of habeas affirmed. Prospecting Exploitation Compa-
ny, Plaintiff-Appellant,
CUDAHY,
Judge, concurring
Circuit
part
dissenting in part:
*5
REPUBLIC,
ARAB
SYRIAN
quite
This
different from Muench
case
Defendant-Appellee.
Israel,
(7th Cir.1983),
intellectual and function
level. These tests would have indicated generally
that defendant functioned five
years level, grade IQ below her mentally borderline retarded.
Certainly such tests are far more widely
recognized probative as reliable and than opinions
are the psychiatrists about the personality
relation of disorders to the for
mation of criminal intent. Because these
tests were ordered purpose admitted into for the
of binding Brown over for trial as an adult
(and competency their relevancy were recognized
thus law), as a matter state have should been admitted on the
subsequent knowledge issue of her of the
possible consequences of her actions. See
Chambers v. Mississippi, 410 U.S.