Appeal from the United States District Court for the Southern District of Indiana, Indianapolis Division. No. IP 75-148-C - William E. Steckler, Judge.
Before Sprecher and Wood, Circuit Judges, and Reynolds, Chief District Judge.*fn*
Petitioner-appellant, Marshall C. Moore, appeals from the denial of his petition for a writ of habeas corpus, brought pursuant to 28 U.S.C. § 2254, in which he asserted: (1) he had been denied due process, having been convicted even though his guilt was not proved beyond a reasonable doubt; (2) his inability to assist in his own defense at his trial because his memory had been erased through the shock treatments he received during his confinement when he was found incompetent to stand trial was a denial of due process; (3) his confinement by the state for a period of three and one-half years also resulted in the denial of his right to a speedy trial. The district court found against him as to claim (1) and found that he had failed to exhaust available state remedies as to claims (2) and (3).
The facts of the case are briefly as follows:
Petitioner shot and killed his wife in April of 1966 and was indicted for first degree murder. Following a motion by retained counsel for a competency determination, he was examined by two court-appointed psychiatrists. Following a hearing, at which it was determined on the basis of the testimony of the two psychiatrists that petitioner was unfit to stand trial, he was committed to Beatty Hospital until he should become competent to be tried. In April, 1970 the director of the hospital reported that he was competent. At about this time petitioner began to file numerous petitions and motions, which included allegations that his memory had been erased by the shock treatments he had received during his confinement and that he had been denied due process by the length of his detention at the hospital. Various hearings were held throughout this period, relating to both competency and the other issues raised by petitioner in the state courts. In June, 1971 the psychiatrists who had originally examined him again testified, this time stating that he was able to aid his attorney and did understand the charges and proceedings. The court found he was competent to stand trial. The case proceeded to trial in January of 1972. Following a two day trial, the jury returned a verdict of murder in the second degree, which was affirmed by the Indiana Supreme Court. He filed this petition for a writ of habeas corpus in the district court in March, 1975 and the writ was denied in May, 1977.
At his trial Moore entered a plea of not guilty by reason of insanity.*fn1 Thus the state had the burden of proving his sanity beyond a reasonable doubt at the time of the act. Johnson v. State, 255 Ind. 324, 264 N.E.2d 57 (1970); Riggs v. State, 264 Ind. 263, 342 N.E.2d 838 (1976).
Petitioner asserts that the state failed to meet this burden of proof when it chose to rely on the testimony of lay witnesses rather than producing its own expert witness to either refute or impeach the testimony of the two court-appointed psychiatrists,*fn2 who testified that in their opinion the petitioner was insane at the time the act occurred. The witnesses the state presented included a neighbor who witnessed the murder, a police officer who saw the petitioner just before and immediately after the shooting, and two of the victim's sisters, both of whom testified that the petitioner told them that he intended to kill his wife and that he would get away with it by pleading insanity.
The issue of sanity is one of fact, United States v. Robinson, 327 F.2d 959 (7th Cir. 1964), and whether there is any evidence to support a finding of sanity must be determined under the applicable state law. Brooks v. Rose, 520 F.2d 775 (5th Cir. 1976). Under Indiana law the issue of sanity may be established by either expert or lay testimony, and it is permissible for the jury to credit the testimony of lay witnesses over that of an expert witness. As the Indiana court noted in Fitch v. State, 160 Ind. App. 697, 313 N.E.2d 548, 549 (Ind.App.1974): "Expert testimony is not conclusive. . . . such a view would constitute a usurpation of the role of the . . . trier of fact. The function of the expert witness is advisory in nature. He does not state Fact. Rather, he renders an Opinion to aid the trier of fact . . .." (emphasis in the original).
The Indiana Supreme Court provided a full and fair hearing on this issue and found that there was sufficient evidence for the jury to find beyond a reasonable doubt that the defendant was sane.*fn3 A due process issue is raised only where a state court conviction is totally devoid of evidentiary support. Vachon v. New Hampshire, 414 U.S. 478, 94 S. Ct. 664, 38 L. Ed. 2d 666 (1974). The factual finding of sanity clearly has evidentiary support, and therefore we affirm the finding of the district court below that petitioner was not deprived of the benefit of due process of law.*fn4
Petitioner also argues that the district court was incorrect in finding that he failed to exhaust his available state remedies as to the memory erasure and speedy trial issues.
First, he argues that the issues were in fact presented to the Indiana Supreme Court, and that since that Court chose not to address the issues, by implication it rejected them.*fn5 Petitioner had appointed counsel who represented him on his appeal to the Indiana Supreme Court, and it is not disputed that these issues were not raised by his counsel. Nonetheless petitioner argues that both the facts and the theories were presented to the Court through his letter written to Chief Justice Arterburn on December 19, 1972. The Court in its decision mentioned the letter and stated, "finding no merit in any of appellant's contentions, the Pro se motion is denied . . . ." The Court's description and discussion of the issues raised by the letter*fn6 do not indicate that it was avoiding the claims that petitioner now presents in his petition for a writ of habeas corpus, but that it simply did not read the letter as raising these issues. Our review of the letter, having the benefit of being advised by the petitioner that the letter does indeed include these issues, reveals that the references are at best oblique,*fn7 and we cannot agree that the facts and theories of these claims were "fairly presented" to the Indiana Supreme Court or that the Court reached and passed on the merits of these claims.
We now move to the question of whether there are state remedies actually available to petitioner, for exhaustion is only required "if he has the right under the law of the State to raise, by any available ...