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Rose v. Duckworth

decided: July 29, 1985.

MICHAEL S. ROSE, PETITIONER-APPELLANT,
v.
JACK DUCKWORTH, SUPERINTENDENT, AND LINLEY E. PEARSON, INDIANA ATTORNEY GENERAL, RESPONDENTS-APPELLEES



Appeal from the United States District Court for the Northern District of Indiana, South Bend Division. No. S-82-575, Allen Sharp, Judge.

Cummings, Chief Judge, Cudahy and Flaum, Circuit Judges.

Author: Flaum

FLAUM, Circuit Judge.

This appeal from the denial of a petition for habeas corpus involves a claim that prosecutorial misconduct in the petitioner's state trial rendered that trial fundamentally unfair. Petitioner Michael Rose was convicted of dealing in a controlled substance (LSD) after a jury trial in an Indiana state court, and his conviction was affirmed by the Supreme Court of Indiana, with one judge dissenting. Rose v. Indiana, 437 N.E.2d 959 (1982). Rose applied for habeas corpus relief pursuant to 28 U.S.C. ยง 2254, alleging that the intentional injection of inadmissible, prejudicial testimony by the prosecutor had deprived him of a fair trial. The district court denied his petition, and for the reasons discussed below, we affirm.

I.

At the beginning of Rose's trial in state court, the trial judge granted a defense motion to bar the prosecutor or any of the state's witnesses (all of whom were police officers or state employees) "from making any reference to" Rose's arrest and guilty plea on a similar but unrelated drug charge in an adjoining county. The trial court granted the motion "as it refers to any buys made after September 22, 1979," the date of the transaction for which Rose was being tried.

During the trial, the prosecutor asked each of his witnesses if he or she was acquainted with the defendant. One witness, Detective Thomas G. Stump, a member of the Indiana State Police, was called to establish a link in the chain of custody of the LSD tablets. Stump had also participated in the arrests of petitioner for both the offense being tried and the subsequent unrelated charge. In response to the prosecutor's question, Stump testified that he was not personally acquainted with Rose.

Q. Do you personally know, are you personally acquainted with the Defendant in this case, Michael Rose?

A. No, sir.

Q. Have you ever meet [sic] him before?

A. Yes, I have.

Q. How many times, approximately?

A. I've met him twice that I recall.

Q. Would you just briefly describe the circumstances of the two times that ...


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