Appeal from the United States District Court for the Southern District of Indiana, Indianapolis Division.
No. IP 92-243-C--John Daniel Tinder, Judge.
Before CUDAHY, FLAUM and EASTERBROOK, Circuit Judges.
James Kappos filed a petition for habeas corpus under 28 U.S.C. sec. 2254, in which he alleged that his murder conviction was obtained in violation of the Constitution. He raises four issues on appeal: the failure of the trial court to give a cautionary jury instruction, the failure of the prosecution to disclose the terms of a "bounty deal," prosecutorial misconduct and the submission of a jury instruction that, he alleges, improperly relieved the state of its burden of proof. *fn1
The evidence at trial established that Kappos hired David Hayes to kill his wife, Charlene Kappos, for five hundred dollars. When Hayes changed his mind and attempted to return the money, Kappos threatened to harm Hayes' family. Hayes subsequently killed Charlene Kappos. Kappos v. State, 465 N.E.2d 1092 (Ind. 1984).
Hayes pleaded guilty to murder and agreed to testify at Kappos' trial in exchange for Hayes' cooperation; the state promised that it would not seek the death penalty for Hayes and would recommend a sentence of not more than forty years. A jury found Kappos guilty. He unsuccessfully appealed his conviction to the Indiana Court of Appeals and the Indiana Supreme Court. Kappos then filed for post-conviction relief in the state courts. The Indiana trial court denied the petition. Kappos appealed to the Indiana Court of Appeals and the Indiana Supreme Court before filing his petition for habeas corpus in the district court.
A. Failure to give cautionary jury instruction
Kappos argues that the trial court erred by not giving a cautionary instruction on the testimony of Hayes, Kappos' accomplice. Kappos did not request such an instruction, and the court instructed the jury to make its own credibility determination with respect to all the witnesses. Although cautionary "accomplice" instructions are preferred in the federal courts, see United States v. McCabe, 720 F.2d 951 (7th Cir. 1983), the failure of a state court to give such an instruction does not rise to the level of a constitutional violation. United States ex rel. Swimley v. Nesbitt, 608 F.2d 1130, 1133 (7th Cir. 1979). In light of the instructions actually given by the trial court, the lack of an accomplice instruction affords no basis for relief.
Kappos argues that the prosecution made a "bounty deal" with its chief witness, Hayes, under which Hayes' reward depended upon Kappos' conviction. As an initial matter the state asserts that Kappos has procedurally defaulted this claim. On appeal from the denial of Kappos' post-conviction petition, the state appellate court determined that the issue had been waived for failure to raise it in the trial court or on direct appeal. Kappos v. State, 577 N.E.2d 974, 977 (Ind. Ct. App. 1991). Although the appellate court noted its agreement with the trial court's determination that the testimony was not inherently unreliable, the basis for the state appellate decision was waiver, an independent and adequate state ground. See Coleman v. Thompson, 501 U.S. 722 (1991). Federal habeas review of this claim is barred in the absence of a showing of cause and prejudice. Id. at 750. Kappos has not argued cause and prejudice; therefore, this court cannot ...