Petition — Johnson v. Spalding

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81-2369 ; MAY 19 a

i ALEXA)

i DER L. STEVaAs,

le == CLERK

NO.

IN THE SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1981

CURTIS LEE JOHNSON,

Petitioner,

vs.

JAMES SPALDING, DR. ROBERT JONES,

THE ATTORNEY GENERAL OF THE STATE

OF WASHINGTON,

Respondents.

ON WRIT OF CERTIORARI TO THE UNITED

STATES COURT OF APPEALS FOR THE

NINTH CIRCUIT

PETITION FOR CERTIORARI

John A. Strait

1154 15th E.

Seattle, WA 98112

(206) 756-3485 or

(206) 323-0273

* Counsel for Petitioner

The petitioner, Curtis Lee Johnson, prays

that a writ of certiorari issue to review the

judgment and opinion of the United States

Court of Appeals for the Ninth Circuit entered

on February 18, 1982 affirming the denial of

petitioner's application for a writ of habeas

corpus.

QUESTIONS PRESENTED

(1) Does an instruction which requires

in part:

“When the state makes out such a

case as would sustain a verdict

of guilty and the defendant offers

evidence as to an alibi, the bur-

den of proof is upon the defendant

insofar as that alibi is concerned.

However, it is not incumbent upon

the defendant to prove the alibi

beyond a reasonable doubt."

violate the 14th Amendment Due Process Clause

under the standard of Cupp v. Naughten, 414

U.S. 141, (1973) and Engle v. Isaac, U.S.

__» (April 5, 1982)?

(2) Should a District Court reviewing

a state criminal conviction under 28 USC 2254

ee a Se

amounting to prejudicial error, under a

IN THE SUPREME COURT OF..THE UNITED STATES

OCTOBER TERM, 1981

CURTIS LEE JOHNSON,

Petitioner,

vs.

JAMES SPALDING, DR. ROBERT JONES,

THE ATTORNEY GENERAL OF THE STATE

OF WASHINGTON,

Respondents.

ON WRIT OF CERTIORARI TO THE UNITED

STATES COURT OF APPEALS FOR THE

NINTH CIRCUIT

PETITION FOR CERTIORARI

John A. Strait

1154 15th E.

Seattle, WA 98112

(206) 756-3485 or

(206) 323-0273

Counsel for Petitioner

Presented... . uate ae seeee

BOLO. aos Ue cs ok chee 0b BK

- $ a :

PLOM ec eee e were eases eeeeeeene

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aun Statutory

eseceeseserereaesesseeseeses

ae Re eae

TABLE OF CASES

Page

Alford v. U.S., 282, U.S. 687

CA OS1 Dn 0.9 0 0:0:0,0. 01me-e.e 6 00.046 00 G06 8 23

Annuziato v. Munson, 566 F.2d

410 (24 Cir. 1977) .ccccccccecs 23

Barber v. Page, 390 U.S. 719,

CED wkd 6% bes 0 64-0 66 6.6 O08 6 oe 24

Cool v. U.S., 409 U.S. 104,

CTE 6 ccd eer edcetesectesaseeees 16

Cupp v. Naughten, 414 U.S. 141

cae at wo 6060 0vetee es oeaneesves 1,14,16,

18,19

Combs v. U.S., 399 A.2d 1313,

(D.C. App. LOTS) © cco 04 cede ee 16

Cooper v. Fitzharris, 586 F.2d

1325 (9th Cir. en banc 1978).. 25

Davis v. Alaska, 415 U.S. 308

at 318 CAO RED » @ diate 44 040 we O8 23

Dunn v. Perrin, 570 F. 2d, 21,

25, (lst Cir. r\ yy | Seer 20

Engle v. Isaccs, U.S. ,

April 5, LUO) wetarecesseeuases 1,18,20,

Graham v. Maryland, 454 F.Supp

643 (D. Md. AEE DD cnbidie an aut 0 eae 17

Greatreaks v. U.S., 211 F.2d 674

at 676 (9th Cir. 1963) ....ee0: 23

SS a = ere

Til

Henderson v. Kibbe, 431 U.S. 145

ES rr re

In re Winship, 397 U.S. 258,

Drie —Lauehdibeaceocedcooese

Jackson v. Virginia, 443 U.S.

307, 99 S.Ct. 2781, 61 L.Ed

580 Disp cbhewebd oeéecbevceec

Mullaney v. Wilbur, 421 U.S. 684

PS +. weedeee & *eneee se eeeeeee

Patterson v. New York, 432 U.S.

197 ge PTT TTTTeTr

Patterson v. McCarthy, 581 F.2d

220 (9th Cir. BEUGS 66 ce cceorere

Pointer v. Texas, 380 U.S. 400

CBee eraeeccddbdsccceccece “ee enee -

Rogers v. Redman, 457 F.Supp 929

(D.C. Del. Ee aoece 6eéeeeteée

Rose v. Lundy, 102 S.Ct. 1198

PPP Pee! TP PEeTT TTT Te

Smith v. Smith, 454 F.2d 572,

578 (Sth Cir. 0: eS

Stumpf v. Bennett, 398 F.2d 1ll,

— Cir. ee banc 1968, cert.

den. 393 U.S. III, 1969).......

Taylor v. Kentucky, 436 U.S. 478

488 CISTED ce ceccesoccecacecseces

Townsend v. Sain, 372 U.S. 293,

318, U.S. 443, 506-07, 73 S,Ct.

397, 97 LeEG 469 (19)... .cncuvees

Page

18,19

13,25

13,14

14,15,18

16,17

Thomas v. U.S., 213 F.2d 30,

(9th Cir. Le ab 60 68 960560066666

Thorton v. Stynchcombe, 481 F.2d

1175 (Sth Cir Dit hb aeease eebees

U.S. v. Alston, 551 F.2d 315 (D.C.

Dt hithek inacee 66406 06000006

U.S. v. Beedle, 463 F.2d 721 (3d

Cir. ah 6 anthaeduee 6 eo 6066042

U.S. v. Blackwood, 456 F.2d 526,

530 (2d Cir. 1972) Cert. Den.

409 U.S. Pvodeoseb te éuceeeb bane

U.S. v. Booz, 451 F.2d 719 (2d

Cir Di ebeo6o¢ oe 680 6eeb66066 6

U.S. Vv. Busic, 587 F.2d 23, 25-26

(lst Cir. BENE ce dooscceosoeeese

U.S. v. Crouch, 528 F.2d 625, 630

(7th Cir. >. | rrr a

U.S. v. Flannery, 451 F.2d 880,

881-82 (lst Cir. BTR oneeeeesor

U.S. v. Gratton, 525 F.2d 1161,

1162 (7th Cir. RVG ace seed seese

U.S. v. Graves, 150 U.S. 118,

14 s.Ct. 40, REO SP cc deceaetsttcce

U.S. v. Mayer, 556 F.2d 245

(5th Cir. 4g) PP are. ee ee

U.S. v. Muchenstraum, 515 F.2d

568, 570-71 (5th Cir. 1975).....

U.S. v. Rodriguez, 585 F.2d 1234,

1241-41 (5th Cir. BOTO? cece séceé

Page

16,18

20,23

U.S. v. Shaffner, 525 F.2d 1021

(7th Cir. Ppt «« case econ Gut oes

U.S. v. Young, 463 F.2d 934, 940

(D.C. Cir. 3072) ome @h> twa dharma

Wainright v. Sykes, 433 U.S. 72

CREP Dade 6066 668660066660 60600608

Wynn v. U.S., 397 F.2d 621, 625,

fn. 23, (D.C. Cir 3OGE) on wa av 40's

Wright v. Smith, 569 F.2d 1188

(2nd Cir. BDTO) 06 660006 cee esCeaoe

Young v. Wyrich, 451 F.Supp 576,

583-84 (W.D. Mo. 2O9Gb 5:2 axe 64 t's 2

STATUTES AND CONSTITUTIONAL

PROVISIONS

14th Amendment Due Process

CLAUSES «oo vc oe cove ores eee eoceege< ge

6th Amendment Confrontation

ClLAUBR> cece cecccccccecccoecescecse

6th Amendment Effective Assistance

of Counsel ChAMGG.. ad oice cea dGe.c% eo

28 usc 241(G) cc cccccesccesseascees

28 usc 2254 (a) cc ccccesceesseseeees

Page

18,19,22

The petitioner, Curtis Lee Johnson, prays

that a writ of certiorari issue to review the

judgment and opinion of the United States

Court of Appeals for the Ninth Circuit entered

on February 18, 1982 affirming the denial of

petitioner's application for a writ of habeas

corpus.

QUESTIONS PRESENTED

(1) Does an instruction which requires

in part:

"When the state makes out such a

case as would sustain a verdict

of guilty and the defendant offers

evidence as to an alibi, the bur-

den of proof is upon the defendant

insofar as that alibi is concerned.

However, it is not incumbent upon

the defendant to prove the alibi

beyond a reasonable doubt."

violate the 14th Amendment Due Process Clause

under the standard of Cupp v. Naughten, 414

U.S. 141, (1973) and Engle v. Isaac, U.S.

, (April 5, 1982)?

(2) Should a District Court reviewing

a state criminal conviction under 28 USC 2254

RN i oy at

(a) consider a series of trial errors, each one

affecting a constitutional right, but no single

one amounting to prejudicial error, under a

cummulative error standard viewing the trial

as a whole or only individually and in isola-

tion?

SRT OE UD SS VE RA Peay MR Stee ee SeEe AMT ee

OPINIONS BELOW

= The opinion of the Court of Appeals is

| Feported at 669 F.2d 589. The opinion of the

: United States District Court for the Eastern

_ District of Washington is reported at 510 F.

Supp. 164. The opinion of the Court of Appeals,

- Division III of the State of Washington is re-

/ ported at 19 Wn.App. 200, 574 P.2d 741 (1978).

J Copies of each are attached in the appendix

to this petition.

ete Ne

JURISDICTION

The opinion of the Court of Appeals for

the Ninth Circuit was entered on February 18,

: 1982 and this petition for certiorai was filed

; within 90 days from that date pursuant to Rule

20 of this court. Jurisdiction is invoked

- under 28 U.S.C. 1254 (1).

; CONSTITUTIONAL AND STATUTORY

< PROVISIONS

a United States Constitution:

Amendment IV:

—— ———————S~.t—“i‘

-+-3 nor shall any state deprive any per-

son of ..., libert, ..., without due process

of law,...

Amendment VI:

In all criminal proceedings, the accused

suall enjoy the right...to be confronted with

the witnesses against him; ... and to have”

the assistance of counsel for his defense.

United States Code, Title 28

§2254 (a):

+--a district court shall entertain an

application for a writ of habeas corpus in

behalf of a person in custody pursuant to the

judgment of a state court only on the ground

that he is in custody in violation of the

Constitution or laws or treaties of the United

States.

STATEMENT OF THE CASE

Petitioner, a black, older prison inmate

in the Washington State Penitentiary in Walla

Walla, Weshington was tried for the murder of

another inmate which occurred on January 7,

1976 (C.P. 1). Petitioner denied that he was

the killer and called 24 witnesses who testi-

fied that he was not the person who committed

the murder. The state called 14 witnesses,

5 of whom (all prisoners) identified the

petitioner as the killer. No forensic or

corroborative evidence was offered to establish

the identity of the killer. The only issue of

fact to be resolved by the jury was whether

Mr. Johnson was the killer.

The state's case against Mr. Johnson was

based entirely on testimonial proof; no physi-

cal evidence introduced at trial linked Mr.

Johnson to the homicide, or corroborated the

testimony of the state's witnesses. Evidence

intoduced by both sides during the trial

served only to bolster or impeach the credi-

bility of various eyewitnesses and alibi

witnesses. Substantial inconsistencies, bias

or prejudice existed in the testimony of every

key witness for both prosecution and defense.:

Fipi eas Exane res of Inconsistencies: Compare

estimony of Carr (R.P. 102-03, 104) with

testimony of correction officer Brooks (R.P,

67) concerning Carr's activities on January 6;

concerning details of basketball game on

January 6. Inconsistencies in testimony of

Nabors, Bible and Sorrell discussed in text

of brief, supra at p. 6.

Typical pagel ss of Prior Insconsistent State-

ments: oya a tted making prior statements

exculpating Mr. Johnson (R.P. 239, 257-59, see

also testimony of D. Coty, R.P. 535); Bible

admitted signing notarized statement exculpa-

ting Mr. Johnson (R.P. 169-70, 187-89);

Haymaker's testimony was inconsistent with

testimony at first trial (R.P. 503-04), as was

Bible's (R.P. 182) and Lloyd's (R.P. 269-71).

Ex les of Bias, Motive, Prejudice: Carr (R.

BOs, 36), ; , Lioyd ar Pert PE . 242-43, , 524),

Nabors (R.P. 283), Sorrell (R.P. 317, Iverson

(R.P. 594), Haymaker (R.P. 486, 492, L.

McLaughlin (R.P. 524-25).

Prior Convictions: All the above mentioned

witnesses except Brooks.

Mental Incapacity: Nabors, history of mental

iliness tae 313-13). All witnesses were

either inmates in the penitentiary with motives

to lie based upon carrying favor with the

state or groups within the penitentiary; or

were on parole with potential fear of retalia-

tion by either the state or the groups within

the penitentiary; or were themselves potential

suspects in the homicide.

After deliberation, the jury was unable

to agree upon a verdict and a mistrial was

declarei. On retrial after a change of venue

to the opposite side of the state, the defendant

was convicted on virtually an identical trial

record.

During the second trial, the jury was in-

structed in part:

"A defense interposed by the

defendant in this case is an alibi;

that is, that the defendant was at

another place at the identical time

the crime was committed.

When the state makes out such

a case as would sustain a verdict

of guilty and the defendant offers

evidence as t>? an alibi, the burden

of proof is upon such defendant inso-

far as that alibi is concerned. How-

ever, it is not incumbent upon the

defendant to prove the alibi beyond

a reasonable doubt." (See Apperdix

for full instruction).

The only definition of reasonable doubt

given to the jury stated in part:

"The expression reasonable doubt

means in law just what the words

imply--a doubt founded on some good

reason. It must arise from the evi-

dence or lack of the evidence. It

must not be a mere whim or a vague

conjectural doubt or misgiving

founded upon mere possibilities.

It must be a substantial doubt,

such aS an honest, sensible and

fair-minded man might with reason

entertain consistently with a con-

scientious desire to ascertain the

truth." (Emphasis added.) (See Ap-

pendix for full text.)

In both opening statement and closing

argument the prosecutor was allowed to argue

that "the defense has the burden of proof to

make che state prove its case beyond a reason-

able doubt,” (RP.1) and that “they [the defense]

have the duty to call witnesses" (RP 50).

At the second trial, the defense did not

call one of the prisoner witnesses who the

prosecution had been notified might testify.

(Under Washington law, the defense must dis-

close the identity and expected testimony for

all witnesses other than the defendant; see

Washington Court Rules Cr R 4.7(b)(1)). Over

objection and motion in limine, the prosecution

was allowed to argue a “missing witness in-

ference” against petitioner; i.e., that this

witness would have disclosed that the alibi

was false and that the jury could infer this

from the failure of the defendant to call the

witness to the stand. The missing witness

was in the custody of the state and available

to be called by the state.

Lopez Bible, one of the witnesses who

testified for the state in Petitioner's first

trial and who had denied being offered con-

sideration for early parole as an inducement

to testify, was on parole in California at the

time of the second trial. Over objection, his

testimony from the first trial was allowed to

be read to the jury in lieu of being returned

to testify. After petitioner's conviction,

Bible returned to Washington and gave an affi-

davit retracting his earlier testimony and

admitting he had been offered a deal to testify

in the first trial.

During cross examination of one of the

critical prosecution witnesses, Bruce Lloyd,

petitioner's counsel attempted to question

Lloyd on matters concerning parole violations

and other charges and the subsequent reinstate-

ment of parole which were contemporaneous

with Lloyd's decision to testify against

petitioner. The purpose of the offered in-

gquiry was to determine the effect the reinstate-

ment of parole and dismissal of an investigation

had upon Lloyd's motive to testify as a State's

witness (RP 263-65). The state objected to

this line of questioning and was sustained.

Later, in the defense case, petitioner tried

to offer the testimony of Lloyd's wife, Loretta

McLaughlin. Mrs. McLaughlin testified in an

offer of proof outside the presence of the

jury that she and Lloyd were transporting

narcotics to the penitentiary when they were

arrested and imprisoned for possession of

heroin in late March, 1976. (RP 453). Lloyd

posted bond and went to Seattle, where he ob-

tained $1,500.00 from Mr. Johnson's fiance,

Veryl Yarnes, by representing to her that the

money would be used to bribe a prosecutor in

Walla Walla “to get Curtis off." (RP 453).

The $1,500.00 was actually used to post bond

obtaining Mrs. McLaughlin's release from jail

(RP 454). The two then fled the state and

traveled to California, where Lloyd supported

himself for two months by selling heroin (RP

455-56). Two weeks after they arrived in

California, Lloyd told Mrs. McLaughlin that

he was the murderer and not Petitioner. (RP 455).

At this time Lloyd and Mrs. McLaughlin were

joint fugitives and co-conspirators in several

criminal activities. Ultimately, the jury was

only allowed to hear the testimony of Mrs.

McLaugalin concerning Lloyd’s admission to the

crime (RP 522-26) which was severely limited

in scope. The rest of her testimony was ruled

irrelevant even though it clearly showed a

motive and interest on the part of Lloyd.

At the second trial, all of the prosecu-

tion witnesses who were prisoners testified

in civilian clothes while all of petitioner's

witnesses testified in prison issue clothing.

Petitioner was convicted of murder 1°

and sentenced to life in prison.

Each of the above issues was raised,

argued and reached on direct appeal to the

Washington Court of Appeals Div. III; review

denied, Wasnington Supreme Court October 6,

1978, see opinion in appendix. Each was again

raised before the District Court for the

Eastern District of Washington by writ of

habeas corpus, see opinion in appendix; and

before the Ninth Circuit Court of Appeals; see

opinion attached. Jurisdiction in the original

federal proceeding in the District Court was

based upon 28 USC §2241(d) and 28 USC §2254 (a)

see opinion p. 2 attached in appendix. Peti-

tioner argued that he was denied due process

of law, confrontation, and effective assistance

of counsel under the 14th amendment due process

clause and the incorporated 6th amendment

guarantees. Petitioner argued that each of

these issues was of constitutional magnitude

and that collectively he had been denied a

fundamentally fair trial.

ARGUMENT

(1) THE DECISION BELOW DECIDES AN IMPcRTANT

QUESTION OF FEDERAL LAW WHICH SHOULD BE

SETTLED BY THIS COURT AND WHICH HAS SPLIT THE

LOWER COURTS:

This court has never decidec on the merits

whether an alibi instruction which shifts the

burden of proof to a defendant as does

instruction #13 set out in the appendix vi-

Olates the due process clause of the Fourteenth

Amendment by removing the burden of proof from

the prosectuion on “a fact necessary to con-

stitute the crime with which he is charged,"

In re Winship, 397 U.S. 258 (1970). See also

Mullaney v. Wilbur, 421 U.S. 684 (1975) and

Patterson v. New York, 432 U.S. 197 (1977).

Alibi is not an affirmative defense but

is a denial of each and every element of the

crime with which defendant is charged and

which the state must prove beyond a reasonable

doubt. The Patterson majority stated,

"We will not disturb the balance

struck in previous cases holding

that the Due Process Clause re-

guires the prosecution to prove

beyond a reasonable doubt all of

the elements included in the

definition of the offense of which

the defendant is charged,"

Patterson v. New York, 422 U.S.

7 *

"Accordingly, while a state may place

upon defendant the burden of proving facts

supporting an affirmative defense in justifi-

cation of a crime, a state could not classify

an alibi as an affirmative defense and place

the burden of proof on the defendant because

an alibi is really another way of denying

guilt.” Rogers v. Redman, 457 F. Supp 929,

932 (D.C. Del. 1978).

In Rogers v. Redman the petitioner brought

a habeas petition challenging an alibi instruc-

tion similar to the charge in issue here. The

district court following the test as dictated

in Cupp v. Naughten, 414 U.S. 141, 147, 94

S.Ct. 396, 400, 38 L.Ed 2d 368; “whether the

ailing instruction by itself so infecte the

entire trial so that the resulting conviction

violates due process.” That court held that

in view of directly conflicting evidence at

trial, although it included strong evidence

on behalf of the government, the error in the

instructions which contained legally correct

instructions but also directly and in unmis-

takable terms obliged the defendant to prove

his alibi, was not harmless error.

"If there was a reasonable doubt

as to whether the petitioner was

present at the time and place the

alleged offenses were committed,

the jury had to find the petiticner

not guilty. It is the burden 6f the

state to prove beyond a reasonable

doubt that the alibi offered is not

true. (3rd Cir. 1971) cert. denied,

414 U.S. 820, 94 S.Ct. 45, 38 L.Ed

2a 52 (1973)."

Rogers v. Redman, supra 933.

An instruction shifting the burden of

proof on an alibi issue also violates the

defendant's corollary right to a presumption

of innocence:

"By shifting the burden of proof .

to apersonwhc claims to have

been elsewhere at the time of the

crime, there is created an irra-

tional and arbitrary presumption

of guilt. It arises not by reason

of a proof of fact from which a

fair inference might be drawn, but

from the mere happening that the

defendant offers testimony in an

attempt to establish innocence.

When this occurs, unless the

defendant can succeed in over-

balancing the state's evidence,

the jury is expressly told he

cannot be acquired by reason of

his sole claim to innocence.

There is thus a prejudgment of

a conclusion which the jury shovld

reach of its own volition.***

{T)lhis presumption would conflict

with the over-riding presumption

of innocence with which the law

endows the accused and which ex-

tends to every element of the

crime."

United States v. Beedle, 463 F.2d 721, 724

(3d Cir. 1972), quoting Stumpf v. Bennett,

398 F.2d 111, 116 (8th Cir. 1968), cert.

denied. 393 U.S. 18, 89 S.Ct. 483, 21 L.Ed

24 466 (1969). Although the Third Circuit

did not reach the constitutional issue in

Beedle, subsequent decisions of this

Court have held that the presumption of in-

novence is a constitutionally protected

right. See Cool v. United States, 409 U.S.

104, 93 S.Ct. 354, 34 L. Ed 24 335; Cupp v.

Naughten, supra, 414 U.S. at 149-50, 94 S.Ct.

396.

The alibi instruction in Mr, Johnson's

trial was also defective in that it not only

put the burden of proof on petitioner as to

alibi sut further charged the jury to consider

all the evidence including that of alibi, in

determining the guilt of the defendant beyond

a reasonable doubt ..., therefore, the jury

had a "choice" of applying the two conflicting

burdens of proof. A jury may not, however,

have such an option to ignore the reasonable

doubt test on the issue of identity in a

criminal prosecution. "The constitution and

more specifically the due process clause of

the fourteenth amendment, permits of no such

choice.” Smith v. Smith, 454 F.2d 572, 578

(Sth Cir. 1971).

See also Stumpf v. Bennett, 398 F.2d 11ll

(8th Cir. en banc 1968); Wright v. Smith

969: F.2d 1188, (2nd Cir. 1978); Thomas v. U.S.

213 F.2d 30 (9th Cir. 1954); Graham v. Mary-

land, 454 F.Supp 643 (D. Md. 1978); Thorton

v. Stynchcombe, 481 F.2d 1175 (Sth Cir. 1973);

U.S. v. Alston, 551 F.2d 315 (D.C, Cir, 1976);

> —). . (a = =

U.S. Vv. Booz, 451 F.2d 719 (3d Cir, 1971); U,S.

U.S. v. Beedle, 463 F.2d 721 (3rd Cir. 1973);

and Smith v. Smith, 464 F.2d (Sth Cir. 1972).

ee ie aide

Despite the extensive history of lower

court consideration of the due process impli-

cations of an alibi instruction this court has

never resolved the issue. Since the court

decided Cupp v. Naughten, supra, the lower

courtshave split see e.g., Rogers v. Redman,

supra, and the instant case. These conflicts

and the important and recurring nature of the

issues justify the grant of certiorari.

(2) THE DECISION BELOW RAISES RECURRENT AND

SIGNIFICANT PROBLEMS OF THE PROPER SCOPE OF

REVIEW UNDER 28 USC 2254(1).

This court, beginning with Wainrighc v.

Sykes, 433 U.S. 72 (1977), Cupp v. Naughten,

supra, Henderson v. Kibbe, 431 U.S. 145 (1977),

‘ 431 U.S 145 (1977), and more recently in Rose

- wv. Lundy, 102 S.Ct. 1198 (1982) and Engle v.

. Isaac, supra, has attempted to clarify the

scopeof review of a state: court conviction

in federal habeas corpus. Me substantial

and recurrent problem has not yet been con-

sidered by this court: where several errors

occurred at trial, each properly preserved

for federal review (Wainright v. Sykes, supra),

and where each of the errors affects a federal

constitutional guarantee; but where each error

may singly be lacking in prejudice, should

a district court consider the cumulative

effect of the errors?

In Cupp v. Naughten, supra 146-147, and

Henderson v. Kibbe, supra 154, this court

stated that

"a single instruction to a jury

may not be judged in isolation,

but must be viewed in the context

of the overall charge."

The Ninth Circuit affirmed the district

court in refusing to review the instruction

errors claimed in the full context of the

case but instead viewed them each in isola-

tion. The essence of petitioner's claim

was that he had been "the victim of a funda-

mental miscarriage of justice... "Engle v.

Isaacs, supra, because the cumulative effect

of each instruction argument and evidentiary

error, collectively, denied him a fair trial.

The reviewing court below isolated each

claimed error and analyzed it assuming each

error was the only one. No collective effect

to establish thé “Cause and prejudice” standard

of Engle v. Isaacs, supra was done.

In this case petitioner showed the fol-

lowing errors affecting the burden of proof

which had constitutional effect:

(1) The burden of proof on alibi--see

discussion part (1) supra.;

(2) Amisstatement of the definition of

reasonable doubt as substantial doubt is the

only explanation of reasonable doubt given

to the jury; see U.S. v. Athens, 487 F.2d

257 (8th Cir. 1970); Dunn v. Perrin, 570 F.

2d 21, 25, (lst Cir. 1978), U.S. v. Rodriguez

585 F.2d 1234, 1241-42 (Sth Cir, 1978), U.S.

v. Muckenstraum, 515 F.2d 568, 570-71 (5th

Cir. 1975), Young v. Wyrick, 451 F.Supp. 576,

583-84 (W.D. Mo. 1979 , U.S. v. Shaffner, 525

F.2d 1021 (7th Cir. 1975), U.S. v. Gratton,

525 F.2d 1161, 1162 (7th Cir. 1976), U.S. v.

Crouch, 528 F.2d 625, 630 (7th Cir. 1976),

U.S. v. Flannery, 451 F.2d 880, 881482 (lst

Cir. 1971). See also Taylor v. Kentucky, 436

U.S. 478, 488 (1978).

(3) A missing witness inference was al-

lowed to be drawn against petitioner because

he failed to call one prisoner witness out of

24 possible witnesses he was compelled to

notify the prosecution might testify although

that witness was available to the prosecution

and in their custody. The prosecutor stated:

"In tryirj a case, the state can

call witnesses. The defense has

that same right. They have the

duty to call witnesses. It was

very interesting in this crial

there is another man that was

there, by their own witnesses,

Leo the Bandido Larson. He was

there the night before, He was

there that next morning. His name

appeared. Mr. Schacht called the

witness Wednesday. We were served

a witness list. We have to exchange

witness lists under the require-

ments. We were served a witness list

with the name of Leo Larson who we

referred to as Leo the Bandido. He

did not appear here. He was an eye-

witness. He was a witness that the

defense had." (RP 50-51 emphasis

added).

See Wynn v. U.S., 397 F.2d 621, 625, fn. 23,

(D.C. Cir. 1967), Combs v. U.S., 399 A.2d

1313, (D.C. App. 1979), U.S. v. Graves, 150

U.S. 118, 14 s.Ct. 40, L.Ed. (1893), U.S. Vv.

U.S. v. Young, 463 F.2d 934, 940 (D.C. Cir.

1972).

These three errors, all raising con-

stitutional questions of due process by

shifting the burden of proof and confusing

the standard of proof for the jury raise the

"fundamental miscarriage of justice” stan-

dard of Wainwright v. Sykes, supra, and

Engles v. Isaacs, supra, when viewed collec-

tively which the District Court refused to do.

Opinion pp. 7-8.

Similarly, petitioner's other claimed

errors affected his right to confront and

properly present evidence of his innocence

and were a further compounding of the effect

of the first three errors, supra,

(4) The restrictions on cross examina-

tion and extrinsic impeachment of one of the

key prosecution witnesses, Bruce Lloyd, see

Davis v. Alaska, 415 U.S. 308 at 318 (1974);

Patterson v. McCarthy, 581 F.2d 220 (9th Cir.

1978); U.S. v. Mayer, 556 F.2d 245 (5th Cir.

1977); Anmnmuziato v. Munson, 566 F.2d 410 (2d

Cir. 1977); Alford v. U.S., 282 U.S. 687 (193)

U.S. v. Mayer, 556 F.2d 245 (5th Cir. 1977)

and U.S. v. Ouori, 535 F.2d 938 (1976).

The trial court's ruling did not allow

“the maximum opportunity to test the credi-

bility of the government's witness," United

States v. Rodriguez, 439 F.2d 782, 783 (9th

Cir. 1971). This affirmative and necessary

testimony should have been allowed, Greatreaks

v. United States, 211 F.2d 674 at 676 (9th

Cir. 1963) and United States v. Blackwood,

456 F.2d 526, 530 (2d Cir. 1972), cert. den.

209 U.S. 863.

(5) The denial of confrontation of

another of the prosecution witnesses, Lopez

Bible, by allowing his previous testimony

to be read without an adequate showing of

necessity. After trial Bible admitted that

he had been offered a deal to testify which

he had denied at his first appearance. These

facts which would have been elicited on cross

examination had he been put on the stand and

were critical in showing the bias and interest

of other state witnesses who identified the

defendant. See cases cited in (4) supra;

Barber v. Page, 390 U.S. 719, (1968); and

Pointer v. Texas, 380 U.S. 400 (1963).

(6) Similarly, the last of petitioner's

errors was the lack of effective assistance

of co: .sel by his trial lawyer to offer his

alibi witnesses' testimony in a credible

manner by calling the witneses to the stand

in prison uniforms while the state witnesses

were not similarly clad. Similarly, his

triai counsel failed to even research or know

the law of alibi in presenting his case to

the jury. (See affidavit of counsel in

appendix). Cooper v. Fitzharris, 586 F.2d

1325 (9th Cir. en banc, 1978) and U.S. v.

DeCoster, 624 F.2d 196 (D.C. Cir. 1976).

Petitioner argued to the District Court

that the combined effects of the above claimed

errors collectively created a denial of due

process. The district court's rejection of

this argument ignores the dictates of Winship

supra, and other controlling authority.

In Jackson v. Virginia, 443 U.S. 307, 99

S.Ct. 2781, 61 L.Ed 2d 580 (1979) the court

quoting Winship said:

"The Winship doctrine requires more than

simply a trial ritual. A doctrine establish-

ing so fundamental a substantive constitutional

standard must also require that the factfinder

will rationally apply that standard to the

— Pee

facts of the case.“ Id. at 317-17

"A federal court has a duty to assess the

historic facts when it is called upon to apply

a constitu." _aal standard to a conviction ob-

tained in a state court. For example, on

direct review of a state court conviction,

where the claim is made that an involuntary

confession was used against the defendant, this

court reviews the facts to determine whether

the confession was wrongly admitted into evi-

dence. [citations]. The same duty obtains

in federal habeas corpus proceedings. Town-

send v. Sain, 372 U.S; 293, 318, U.S. 443,

506-07, 73 S.Ct. 397, 97 L.Ed 469 (19).

This issue of the effect of cumulative

constitutional error justifies the grant of

a writ of certiorari to review the judgment

below.

Respectfully submitted,

John A, Strait

Counsel for Appellant

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