# Petition — Johnson v. Spalding

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition
- **Published:** January 1, 1982
- **Citation:** 459 U.S. 942

## Text

*

Office . - Supreme
FILE oT

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

1

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

II

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,
22
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

25

13

13,14

23

24

14,15,18

18

17

16,17

21

26

Iv

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
17

17

18

16,18

24

18

22

21

21

21

22

23

21

20,23

Bn

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

21

22

18,19,22

22

17

21

12

12

12
12
12

1

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,

é

>

- 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,

aa

5
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.:

6

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

7
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-

8

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

ee

9
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

10
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

1l
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

12

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

ae

=>

13

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

14

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

15

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

16

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.

17

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).

a4

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

19

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

20

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

21

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

22

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.

23

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

24

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

25

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

26

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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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385009_0257%3A1. Public record. Not legal advice.